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Home My WebLink About10/11/2022VER c\ �1 ORW A BOARD OF COUNTY COMMISSIONERS INDIAN RIVER COUNTY FLORIDA COMMISSION AGENDA TUESDAY, OCTOBER 11, 2022 - 9:00 AM Commission Chambers Indian River County Administration Complex 180127th Street, Building A Vero Beach, Florida, 32960-3388 www.ircgov.com COUNTY COMMISSIONERS Peter O'Bryan, Chairman, District 4 Jason E. Brown, County Administrator Joseph H. Earman, Vice Chairman, District 3 Dylan Reingold, County Attorney Susan Adams, District 1 Jeffrey R Smith, Clerk of the Circuit Court and Comptroller Joseph Flescher, District 2 Laura Moss, District 5 1. CALL TO ORDER 2.A. A MOMENT OF SILENT REFLECTION FOR FIRST RESPONDERS AND MEMBERS OF THE ARMED FORCES 2.11. INVOCATION Pastor Larry Boan, Central Assembly of God 3. PLEDGE OF ALLEGIANCE Commissioner Susan Adams 4. ADDITIONS/DELETIONS TO THE AGENDA / EMERGENCY ITEMS 5. PROCLAMATIONS and PRESENTATIONS 5.A. Presentation of Proclamation Designating October, 2022, As Manufacturing Month In Indian River County, Florida Attachments: Proclamation 5.B. Proclamation Recognizing the Month of October, 2022, as National Domestic Violence Awareness Month Attachments: Proclamation 5.C. Presentation of Proclamation recognizing October 2022 as Vaping Awareness Month Attachments: Proclamation - Vaping Awareness Month October 11, 2022 Page 1 of 6 6. APPROVAL OF MINUTES 7. INFORMATION ITEMS FROM STAFF OR COMMISSIONERS NOT REQUIRING BOARD ACTION 7.A. Indian River County Venue Event Calendar Review Attachments: Staff Report 8. CONSENT AGENDA 8.A. Award of RFP 2022058 for Medical Services for PSN Shelter Attachments: Staff Report Agreement 8.B. Second Extension and Amendment to Staffing Agreement with HireQuest Direct for Temporary Day Laborers Attachments: Staff Report Second Extension and Amendment Increase Request 8.C. Adoption of Plan Documents Related to the Award of RFP 2022040457(b) Deferred Compensation Plan Recordkeeping Services to Lincoln Financial Services Attachments: Staff Report BOCC Lincoln 457 Plan and Trust BOCC Lincoln Trust Agreement BOCC Lincoln Record Keeping Service Agreement BOCC Investment Advisory Services Agreement 8.D. Authorization of a Side by Side Recordkeeping Agreement with Nationwide Retirement Solutions Inc for Recordkeeping Services for Assets in the Nationwide Fixed Account, the Termination of the ProAccount, and the Application for Group Flexible Purchase Payment Deferred Fixed Annuity Contract Attachments: Staff Report Recordkeeper Agreement 8.E. Work Order 13 to Bowman Consulting Group, LTD for West Wabasso Phase 3A Attachments: Staff Report Work Order 13 - Bowman Consulting Group 8.F. MedFast Urgent Care Center Letter of Intent for Lease Attachments: Staff Report Letter of Intent October 11, 2022 Page 2 of 6 8.G. Post Hurricane Ian Beach Profile Surveys Attachments: Staff Report Morgan and Eklund Post -Hurricane Ian WO No. 1 Work Order No. 1 Agreement Execution 8.11. Hurricane Ian Storm Impact Assessments - Sectors 3, 5 and 7 Attachments: Staff Report Aptim Work Order No. 2018008-05 Work Order No. 2018008-05 Agreement Execution 8.I. Resolutions Cancelling Taxes Attachments: Staff Report Resolution Cancelling Taxes Corrigan Fire Station Resolution Cancelling Taxes Corrigan Right of Way 8.1 Approval to Piggyback USF Xerox Contract Attachments: Staff Report Xerox MSA ITN 17 -16 -MH - duly signed 061418 - FINAL Xerox Amendment # 1 - SignedUSF Xerox Amendment # 2 - USFSigned 9. CONSTITUTIONAL OFFICERS and GOVERNMENTAL AGENCIES 10. PUBLIC ITEMS A. PUBLIC HEARINGS 10.A.1. Glendale Baptist Church, Inc.'s Request for Modified Conceptual Site Plan and Special Exception Use Approval for Glendale Baptist Church and School [SP -SE -21-08-19 / 2004040365-89958] (Quasi -Judicial) Attachments: Staff Report PZC Approved Meeting Minutes Location Map Aerial Conceptual Site Plan Phasing Plan Landscape Plan Affidavit of Public Hearing B. PUBLIC DISCUSSION ITEMS IO.B.1. Request to Speak from Regina Hawkins re: No Prior Seizure Notification of 8725 64th Ave Attachments: Public Discussion Request R. Hawkins October 11, 2022 Page 3 of 6 10.B.2. Request to Speak from Quinesha Hawkins re: Redevelopment of 8725 6th Ave for Affordable Housing Attachments: Public Discussion Request from Q.Hawkins C. PUBLIC NOTICE ITEMS 10.C.1. Public Notice of Continued Public Hearing for October 18, 2022, to Consider an Ordinance Establishing the LP Community Development District Attachments: Staff Report 11. COUNTY ADMINISTRATOR MATTERS 11.A. Proposed 2023 Meeting Dates -- Board of County Commissioners Attachments: Staff Report 2023 meeting dates Atch A - Current Schedule Atch B - Proposed Revision 11.B. Debris Collection Post -Hurricane Ian Attachments: Staff Report - Debris 12. DEPARTMENTAL MATTERS A. Community Development 12.A.1. Requesting Authorization for Community Development Department Director, on behalf of the Indian River Board of County Commissioners, to Execute Single Family and Multi -Family Affordable Housing Impact Fee Waiver/Reduction Agreements. Attachments: Staff Report Draft Proposed Ordinance Draft Amendment to Appendix A - Impact Fee Schedules VIP Matrix B. Emergency Services C. General Services D. Human Resources E. Information Technology F. Office of Management and Budget G. Public Works H. Utilities Services 13. COUNTY ATTORNEY MATTERS October 11, 2022 Page 4 of 6 13.A. Request for Closed Attorney -Client Session Relating to INDIAN RIVER COUNTY V. TWENTY-TWO BEACHFRONT PROPERTIES LOCATED BETWEEN, AND INCLUDING, 9586 DOUBLOON DR., AND, BUT NOT INCLUDING, 1820 WABASSO BEACH RD., VERO BEACH, FLORIDA, 32963 (Case No.: 312018 CA 000881) Attachments: Staff Report 14. COMMISSIONERS MATTERS A. Commissioner Peter D. O'Bryan, Chairman B. Commissioner Joseph H. Earman, Vice Chairman 14.B.1. Discussion on Changes to Beach Renourishment Project Easement Attachments: Commissioner's Memorandum DRAFT Easement w/changes C. Commissioner Susan Adams D. Commissioner Joseph E. Flescher E. Commissioner Laura Moss 15. SPECIAL DISTRICTS AND BOARDS A. Emergency Services District B. Solid Waste Disposal District C. Environmental Control Board 16. ADJOURNMENT October 11, 2022 Page 5 of 6 Except for those matters specifically exempted under the State Statute and Local Ordinance, the Board shall provide an opportunity for public comment prior to the undertaking by the Board of any action on the agenda, including those matters on the Consent Agenda. Public comment shall also be heard on any proposition which the Board is to take action which was either not on the Board agenda or distributed to the public prior to the commencement of the meeting. Anyone who may wish to appeal any decision which may be made at this meeting will need to ensure that a verbatim record of the proceedings is made which includes the testimony and evidence upon which the appeal will be based. Anyone who needs a special accommodation for this meeting may contact the County's Americans with Disabilities Act (ADA) Coordinator at (772) 226-1223 at least 48 hours in advance of meeting. Anyone who needs special accommodation with a hearing aid for this meeting may contact the Board of County Commission Office at 772-226-1490 at least 20 hours in advance of the meeting. The full agenda is available on line at the Indian River County Website at www.iregov.com The full agenda is also available for review in the Board of County Commission Office, the Indian River County Main Library, and the North County Library. Commission Meetings are broadcast live on Comcast Cable Channel 27 Rebroadcasts continuously with the following proposed schedule: Tuesday at 6:00 p.m. until Wednesday at 6:00 a.m., Wednesday at 9:00 a.m. until 5:00 p.m., Thursday at 1:00 p.m. through Friday Morning, and Saturday at 12:00 Noon to 5:00 p.m. October 11, 2022 Page 6 of 6 Proclamation DESIGNATING OCTOBER, 2022, AS MANUFACTURING MONTH IN INDIAN RIVER COUNTY, FLORIDA 'Whereas, October 7, 2022, is National Manufacturing Day, the kick-off to Manufacturing Month, recognizing the manufacturing industry sector as vital to the economic health of our County, the State of Florida, and our entire country; and -Whereas, manufacturing is one of the cornerstones of our local economy, helping to sustain our quality of life while fostering a solid and diversified tax base in Indian River County; and 'Whereas, manufacturing provides 2,200 high -wage and high -skill jobs in Indian River County, with 130 manufacturing firms paying an average annual wage of $49,300, higher than our current average wage of $46,413; this equates to more than $108 -million in paychecks circulating throughout our local economy each year; and _Whereas, we join the Indian River County Chamber of Commerce, the Treasure Coast Manufacturers Association, local educators, businesses and many volunteers in supporting our Manufacturing Bootcamp program, encouraging students and young adults to consider manufacturing as a career path; and 'Whereas, all residents are encouraged to take time to acknowledge Indian River County manufacturers, and their employees, for the positive economic impact they have in our County, the State of Florida, and our nation. Naw, Therefore, be it Proclaimed by the Board of County Commissioners of Indian River County, Florida, that the month of October, 2022, be designated as MANUFACTURING MONTH IN INDIAN RIVER COUNTY, FLORIDA. Adopted this 11th day of October, 2022. BOARD OF COUNTY COMMISSIONERS, INDIAN RIVER COUNTY, FLORIDA Peter D. O'Bryan, Chairman Joseph H. Earman, Vice Chairman Susan Adams Joseph E. Flescher Laura Moss 1 ProcCamation RECOGNIZING THE MONTH OF OCTOBER, 2022, AS NATIONAL DOMESTIC VIOLENCE AWARENESS MONTH -Whereas, each day in America, four women are murdered by their intimate partners; and -Whereas, each day in America, an average of twenty people every minute are abused by their intimate partners; and -Whereas, one -in -three American women and one -in -four men have experienced some form of intimate partner violence during their lifetime; and -Whereas, National Domestic Violence Awareness Month provides all Americans the opportunity to recommit to ensuring that every relationship be violence -free; and -Whereas, in Indian River County, SafeSpace, Incorporated, joins forces with law enforcement, victim service programs, criminal justice officials, social service organizations, and concerned citizens to fight domestic violence and provide all domestic violence victims a safe place where they can live with respect, resources, restoration, and justice; together, their commitment and compassion help to ensure that our community steps forward to support domestic violence victims in need. Wow, Therefore, be it Proclaimed by the Board of County Commissianers of Indian River County, Florida, that the Board recognizes the month of October, 2022, as National Domestic Violence Awareness Month; advocates for relationships rooted in trust, respect, and equality; and expresses our sincere appreciation for those committed to promoting peace and preventing domestic violence in our community. Adopted this 11th day of October, 2022. BOARD OF COUNTY COMMISSIONERS, INDIAN RIVER COUNTY, FLORIDA Peter D. O'Bryan, Chairman Joseph H. Earman, Vice Chairman Susan Adams Joseph E. Flescher Laura Moss F Proclamation RECOGNIZING OCTOBER, 2022, AS VAPING AWARENESS MONTH WHEREAS, the federal government has declared youth e -cigarette use, or "vaping," a nationwide epidemic, as vaping has increased dramatically across the country and in Florida; and WHEREAS, in 2020, The Florida Youth Tobacco Survey by the Florida Department of Health, Bureau of Epidemiology revealed that 16.5% of Indian River County students admit to currently using an electronic vapor product; and WHEREAS, e -cigarettes are unsafe for kids, teens, and young adults due to their highly - addictive nicotine content, and that developing young brains are more vulnerable to its effects, including reduced impulse control, deficits in attention and cognition, mood disorders; and WHEREAS, e -cigarette aerosol is not harmless water vapor, and the aerosol that users breathe and exhale from these devices can contain harmful substances, including cancer-causing chemicals and heavy metals such as nickel, tin, and lead; and WHEREAS, the focus of October, 2022, Vaping Awareness Month is to put accurate information about youth and adult e -cigarette use into the hands of our citizens as an important step to reversing this alarming trend in Indian River County; and WHEREAS, the Indian River County Commissioners are dedicated to protecting the health, safety and welfare of our youth and educating our citizens on the dangers of electronic vapor product usage. NOW, THEREFORE, BE IT PROCLAIMED BY THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA that October, 2022, be recognized as Vaping Awareness Month in Indian River County. Adopted this 111h day of October, 2022. BOARD OF COUNTY COMMISSIONERS INDIAN RIVER COUNTY, FLORIDA Peter D. O'Bryan, Chairman Joseph H. Earman, Vice Chairman Susan Adams Joseph E. Flescher Laura Moss 3 7A Indian River County Venue Event Calendar For more information go to www.ircgov.com - Event Calendar INAUGURAL PETER D. O'BRYAN OPEN DISC GOLF CHALLENGE Saturday, October 15 • Shot Gun Start 9am • County staff and municipal employees @ Kiwanis Hobart Park This inaugural event is to celebrate Commissioner Peter O'Bryan's service through a day of play at Kiwanis Hobart Park's disc golf course. Employees of Indian River County and surrounding municipalities are invited to join in a fun day of Disc Golf — beginners to advanced players welcome! Form a team or sign up as an individual. Discs will be provided. Call 772- 226-1780 for more information or register today! https://secure.reci.com/FL/indian-river- county-fl/catalog NEW! PICKLEBALL FOR TEENS OPEN GYM Friday and Saturdays 4pm-7pm @ iG Center 4pm-7pm. Cost $3 per student underwritten by community sponsorships — this month's sponsorships are provided by Youth on a Mission and Kiwanis Club This new open gym is open to teens only. Community sponsors are generously underwriting the open gym fee for each participant. Come for a fun night out with friends on Friday and Saturday evenings to learn and play pickleball! Call 772-226-1780 for more information or register online at ircgov.com/parksandrecreation TRUNK OR TREAT & MONSTER MASH October 28 @ iG Center • starting at 5pm 5pm-7pm Join us at the iG for Trunk or Treat — this walk-through trunk or treat will be the talk of the town... register for prizes and contests with your decorated trunk or come to get some treats — bring the whole family for a fun filled night! 6pm-8pm Monster Mash Dance Party in the iG Gymnasium —join us for a howl-ing good time for the Monster Mash Dance hosted by IRC Parks and Recreation —come in your best costume ready for games, contests and prizes while dancing the night away ➢ 8:30pm-10pm is TEENS Only Monster Mash! Ready for a night out dressed in your scariest, cutest or most creative costume? We have a special event just for you! 2 NEW! FALL ADULT KICKBALL Register by October 12 @ Fran B. Adams Regional Park (North County) Registration is open for Adult Kickball at Fran B. Adams (North County) Regional Park! Register as a team or a free agent. Games start soon! Contact Drew Jurad @ djurad@ircgov.com or call 772-226-1780 for more info and to register! FALL ADULT SOFTBALL Register by October 12 @ Dick Bird Regional Park (South County) i- Registration is open for Adult Softball for Co -Ed and Men's Leagues at Dick Bird (South County) Regional Park! Register as a team or a free agent. Games start soon! Contact Drew Jurad @ diurad@ircgov.com or call 772-226-1780 for more info and to register! COMMUNITY DRUM CIRCLE WITH TREASURE COAST PERCUSSION Oct 12 @ Main Brackett Library ➢ 12pm-3pm. Free Event! Join us for an evening of drumming! No experience is necessary and drums are provided. All ages are welcome! For more information go to libraries.ircgov.com JOY OF PAINTING CLASS WITH STEVEN BROOKS Saturday, October 22 • 9am @ iG • 10:00am — 12:30pm. Cost $59 per person. • Certified Bob Ross instructor Steven Brooks will take you through a one of a kind painting experience. y Pre -registration required. Visit www.paintwithsteven.com to reserve your spot Beginners welcome. Steven will supply all materials and you will take home a painting by the end of the class. JULIAN WINGATE'S BIG BORE CHALLENGE October 29 @ IRC Shooting Range --10045 102nd Terrace, Sebastian, FL 32958 • 9am-4pm. Cost $35 per person. Tickets sold at Alpha Guns and Ammo y In memory of IRC Shooting Range employee Julian Wingate. Contestants have the chance to win a $1000 revolver. OPERATION GREEN LIGHT November 7-11 @ Indian River County Facilities Operation Green Light's mission is to show support for Veterans of all military conflicts, with a special emphasis on the Veterans of Iraq and Afghanistan, as well as raise awareness about the challenges faced by many Veterans and the resources that are available at the county, state, and federal level to assist Veterans and their families. 5 Indian River County will join Operation Green Light and show support for veterans by lighting our buildings green from November 7 to November 13. By shining a green light, Indian River County Government and our residents will let veterans know that they are seen, appreciated and supported. NEW CLASSES! PRE-SCHOOL TUMBLING Fridays @ iG Center Fridays — 10:1Sam, 1:00pm, and 4:00pm. $3 per session. 7 spots available per class. Preschool tumbling is a great start for ages 4-S. Get active while having fun! In this program children ages 4-S are taught basic tumbling skills such as forwards/backwards rolls, handstands, and cartwheels. Children will improve self-confidence, basic skills, strength, flexibility and balance. Spaces are limited sign up quickly! NOW OFFERING! ZUMBA • Mondays and Thursdays @ iG Center ➢ Mondays 9am-10am and Thursdays 6pm-7pm. Classes $10 Per Person. Join Brazilian native, Miwana Sargent, on an exhilarating, easy to follow, Latin inspired, calorie burning experience! Miwana's class offers a variety of rhythms from Latin, Soca, and Hip -Hop. Register or drop! Ircgov.com/parksandrecreation NEW CLASS! WELLNESS THROUGH QIGONG Wednesdays @ iG Center • 9:30am-10:30am. Cost $10 per class Join certified instructor Elaine Matthes through an amazing hour that will be sure to improve your physical and mental health. Qigong, pronounced "chi gong," was developed in China thousands of years ago as part of traditional Chinese medicine. It involves using exercises to optimize energy within the body, mind, and spirit, with the goal of improving and maintaining health and well-being. Qigong has both psychological and physical components and involves the regulation of the mind, breath, and body's movement and posture. NEW CLASS! AMERICAN MAH JONGG Thursdays @ iG Center • 10:00am-12:00pm. Cost $75 per student for four-week session Instructor Carol Dougherty will take students on a four-week journey through the world of American Mahjongg. This class is intended for brand new players that would like to learn the game and would like an experienced instructor to guide you to success. American mahjong is played with four players using mah jongg tiles. The goal of the game is to be the first, by picking and discarding, to match one's tiles to a specific hand from the 0 annually distributed scorecard published by the National Mah Jongg League (NMJL). Experienced Mah Jongg players are welcome to attend Tuesdays 10am-fpm and Thursdays fpm-3pm @ iG $2 per session r Pre -registration is required. Contact us at 772-226-1780 for more info! NEW CLASS! SHINE DANCE Mondays 6pm-7pm @ iG Center • Cost $10 — drop in or pre -registration welcome • Shine Dance is a fitness class for active adults. Full body cardio and workout based in jazz, ballet and hip-hop. • Call 772-226-1780 for information or pre -register at www.ircgov.com/parksandrecreation 0A peter Do ryan open %0009 Lf Championship Kiwanis Hobart Park 5555 77th St, Vero Beach, FL 32967 Date: 10/1S/2022 8 AM Check In 9 AM Shotgun Start - Open to all County employees and Elected Officials • IS teams (72 players) -4 playersper team 3 players minimum to make up a team Y- Individual Registration with option to list team members and team name • Any player not on a team will be assigned a team • Discs provided it needed • prizes for WinningTeam /Longest Drive /Closest#'Vin /Ace • Light refreshments seared at Check In. •Best Shot (Scramble Format) • Scan QR Code below to register [j]:10 . 4- J -1 —1 H CONSENT INDIAN RIVER COUNTY OFFICE OF MANAGEMENT AND BUDGET PURCHASING DIVISION DATE: October 4, 2022 TO: BOARD OF COUNTY COMMISSIONERS THROUGH: Jason E. Brown, County Administrator Kristin Daniels, Director, Office of Management and Budget FROM: Jennifer Hyde, Purchasing Manager SUBJECT: Award of RFP 2022058 for Medical Services for PSN Shelter BACKGROUND: On June 14, 2022, the Board authorized the termination for convenience of an existing agreement for Medical Services for Persons with Special Needs ("PSN") shelter, awarded under bid 2020032, with authorization for staff to resolicit the services under a request for proposals ("RFP") process. RFP RESULTS: Advertising Date: RFP Opening Date: Solicitation Broadcast to: RFP Documents Requested by: Replies: June 2, 2022 June 24, 2022 62 Subscribers 3 Firms 1 Firm (Critical Response Strategies, LLC) ANALYSIS: A selection committee comprised of David Johnson, Emergency Services Director, David Rattray, Fire Chief, and Steve Greer, Battalion Chief, independently reviewed the proposal in accordance with the RFP document and Purchasing Manual. The committee then met to discuss the proposal, and agreed the sole proposer met the RFP requirements, and is qualified to provide the services. The term of award is proposed at three years, with three one-year renewals available. FUNDING: The sole proposer submitted a $930 hourly rate for the requested medical team, which, as detailed in the County's request for proposals, consists of two nurses, six certified nursing assistant/home health aides, and one respiratory assistant. For reference, the same medical team composition was requested in the previous solicitation. The hourly rate of the awarded bidder was $197. The hourly rate of the second low bidder was $904.33, which had expired by the time the low bid was terminated. Expenses incurred for this work are anticipated to be funded through FEMA reimbursement. CONSENT RECOMMENDATION: Staff recommends the Board award RFP 2022058 to Critical Response Strategies, LLC, approve the agreement, and authorize the Chairman to sign after the County Attorney has approved it as to form and legal sufficiency, and after receipt and approval of the required insurance by the Risk Manager. ATTACHMENT Agreement 0 Sample Agreement THIS AGREEMENT is by and between INDIAN RIVER COUNTY, a Political Subdivision of the State of Florida organized and existing under the Laws of the State of Florida, (hereinafter called OWNER) and Critical Response Strategies, LLC (hereinafter called PROVIDER). OWNER and PROVIDER, in consideration of the mutual covenants hereinafter set forth, agree as follows: ARTICLE 1- WORK PROVIDER shall complete all Work as specified or indicated in the Contract Documents. The Work is generally described as follows: Provide fully -staffed medical team(s) in the event of shelter activation to provide round-the-clock coverage at Persons with Special Needs (PSN) Shelter, which includes: two (2) nurses (at least one of whom is a Registered Nurse), Six (6) Certified Nursing Assistants or Home Health Aides, and One (1) Respiratory Therapist. ARTICLE 2 - THE PROJECT The Project for which the Work under the Contract Documents may be the whole or only a part is generally described as follows: Project Name: Medical Services for Persons with Special Needs (PSN) Shelter Bid Number: 2022058 Project Address: 8955 85th Street, Sebastian, FL 32958, or other location as determined by FDOH ARTICLE 3 - CONTRACT TERM The term of this award is three years from effective date, with three additional one year terms available, based on mutual consent, and OWNER's determination that renewal is in the best interest of the County. ARTICLE 4 - CONTRACT PRICE 4.01 OWNER shall pay PROVIDER for completion of the Work an amount in current funds equal to the sum of the amounts determined pursuant to the prices stated in PROVIDER's Bid, attached hereto as Exhibit 1. Payment will be made at the total team price bid, even if lower level positions are filled by more highly -qualified providers. 4.02 Failure to provide a fully -qualified and staffed team in accordance with the time requirements provided in the Article 7 will result in a penalty of $1,000 per day. ARTICLE 5 - PAYMENT PROCEDURES 5.01 Progress Payments. 1 10 A. The OWNER shall make progress payments to the PROVIDER on the basis of the approved partial payment request as recommended by OEM in accordance with the provisions of the Local Government Prompt Payment Act, Florida Statutes section 218.70 et. seq. 5.02 Pay Requests. A. Each request for a progress payment shall contain the PROVIDER'S certification. All progress payments will be on the basis of progress of the work measured by the schedule of values established, or in the case of unit price work based on the number of units completed. 5.03 Paragraphs 5.01 and 5.02 do not apply to construction services work purchased by the County as OWNER which are paid for, in whole or in part, with federal funds and are subject to federal grantor laws and regulations or requirements that are contrary to any provision of the Local Government Prompt Payment Act. In such event, payment and retainage provisions shall be governed by the applicable grant requirements and guidelines. ARTICLE 6 - INDEMNIFICATION 6.01 PROVIDER shall indemnify and hold harmless the OWNER, and its officers and employees, from liabilities, damages, losses and costs, including, but not limited to, reasonable attorney's fees, to the extent caused by the negligence, recklessness, or intentional wrongful misconduct of the PROVIDER and persons employed or utilized by the PROVIDER in the performance of the Work. ARTICLE 7 - PROVIDER'S RESPONSIBILITIES 7.01 In order to induce OWNER to enter into this Agreement PROVIDER makes the following representations: A. Provider will deliver temporary health care staffing to the PSN shelter within sixteen (16) hours of the request. Initial request will be made by telephone with a follow up email from the OEM. The services will be provided during a proposed shelter opening for a disaster event that could impact Indian River County. B. Provider will deliver professional and efficient temporary health care services twenty-four (24) hours a day, seven (7) days a week during PSN shelter activation. Meals will be provided to staff housed at the shelter, and shower facilities are available in close proximity to the shelter. C. Provider will provide one (1) or more of the following staffing teams to the County PSN shelter for a twelve (12) hour shift: Two (2) nurses (at least one of which is a Registered Nurse), Six (6) Certified Nursing Assistants or Home Health Aides, and One (1) Respiratory Therapist. Emergency Medical Technicians (EMTs) can be substituted for a CNA as long as they have their National Registry Certification. D. Provider personnel shall have at least one (1) year of documented experience in specified job classification. 11 E. Provider is responsible for background screening, testing, evaluations, maintenance, recruitment, and disciplinary actions of its personnel. F. Provider will abide by all ordinances and laws pertaining to their operation and secure all required licenses and permits. G. Provider will perform all services in accordance with customary, reasonable, and prudent industry standards of care. H. Provider will ensure appropriate credentials, certifications, and/or licenses to complete work are active and current: o Registered Nurse is licensed by the Florida Department of Health of Medical Quality Assurance to practice nursing under 464.003(4), Florida Statutes. An out of state Nursing license may be considered, as long as there is a reciprocity agreement with the issuing state. o Licensed Practical Nurse are licensed under 464.003(3)(b), Florida Statutes. o Certified Nursing Assistants are certified under the Board of Nursing 464.2085, Florida Statutes. o Registered Respiratory Therapist is licensed to provide respiratory care under the supervision of a physician 468.35 — 468.369, Florida Statutes. I. Provider shall assume professional liability and Workman's Compensation coverage for its personnel. J. Provider staff will work under the Provider's medical policies and protocols. Staff will abide by the rules and regulations set forth by agency compliance with standard and transmission -based precautions, OSHA Blood - borne Pathogens Exposure Control Plan and Verify training on HIPPA laws and patient confidentiality. (45 CFR Parts 160, 162, and 164). K. Provider understands that shelters are open twenty-four (24) hours a day, seven (7) days a week during disasters. When the County is experiencing tropical storm force winds or higher, staff may be required to stay at the shelter for personal safety. I. The Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performance and furnishing of the Work. J. PROVIDER is registered with and will use the Department of Homeland Security's E -Verify system (www.e-verify.gov) to confirm the employment eligibility of all newly hired employees for the duration of this agreement, as required by Section 448.095, F.S. PROVIDER is also responsible for obtaining proof of E -Verify registration and utilization for all subcontractors. ARTICLE 8 - CONTRACT DOCUMENTS 8.01 Contents A. The Contract Documents consist of the following: (1) This Agreement; (2) Notice to Proceed; (3) Certificate(s) of Liability Insurance; 3 12 (4) Request for Proposals 2022058; (5) PROVIDER'S Submitted Proposal; (6) The following which may be delivered or issued on or after the Effective Date of the Agreement and are not attached hereto: a) Written Amendments; b) Work Change Directives; c) Change Order(s). ARTICLE 9 - MISCELLANEOUS 9.01 Terms A. Terms used in this Agreement will have the meanings indicated in the Request for Proposals. 9.02 Assignment of Contract A. No assignment by a party hereto of any rights under or interests in the Agreement will be binding on another party hereto without the written consent of the party sought to be bound; and, specifically but without limitation, moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Contract Documents. 9.03 Successors and Assigns A. OWNER and PROVIDER each binds itself, its partners, successors, assigns, and legal representatives to the other party hereto, its partners, successors, assigns, and legal representatives in respect to all covenants, agreements, and obligations contained in the Contract Documents. 9.04 Severability A. Any provision or part of the Contract Documents held to be void or unenforceable under any Law or Regulation shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon OWNER and PROVIDER, who agree that the Contract Documents shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. 9.05 Venue A. This Agreement shall be governed by the laws of the State of Florida. Venue for any lawsuit brought by either party against the other party or otherwise arising out of this Agreement shall be in Indian River County, Florida, or, in the event of a federal jurisdiction, in the United States District Court for the Southern District of Florida. 9.06 Public Records Compliance 4 13 A. Indian River County is a public agency subject to Chapter 119, Florida Statutes. The PROVIDER shall comply with Florida's Public Records Law. Specifically, the PROVIDER shall: (1) Keep and maintain public records required by the County to perform the service. (2) Upon request from the County's Custodian of Public Records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in Chapter 119 or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the PROVIDER does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the PROVIDER or keep and maintain public records required by the County to perform the service. If the PROVIDER transfers all public records to the County upon completion of the contract, the PROVIDER shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the PROVIDER keeps and maintains public records upon completion of the contract, the PROVIDER shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the Custodian of Public Records, in a format that is compatible with the information technology systems of the County. B. IF THE PROVIDER HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE PROVIDER'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACTTHE CUSTODIAN OF PUBLIC RECORDS AT: (772) 226-1424 publicrecords@ircgov.com Indian River County Office of the County Attorney 180127th Street Vero Beach, FL 32960 C. Failure of the PROVIDER to comply with these requirements shall be a material breach of this Agreement. ARTICLE 10 — FEDERAL CLAUSES 10.01 OWNER and PROVIDER will adhere to the following, as applicable to this work: A. Suspension and Debarment (1) This contract is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such the PROVIDER is required to verify that none of the PROVIDER, its principals (defined at 2 C.F.R. § 5 14 180.995), or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935). (2) The PROVIDER must comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C and must include a requirement to comply with these regulations in any lower tier covered transaction it enters into. (3) This certification is a material representation of fact relied upon by OWNER. If it is later determined that the PROVIDER did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to OWNER, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. (4) The bidder or proposer agrees to comply with the requirements of 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions. B. Byrd Anti -Lobbying Amendment, 31 U.S.C. § 1352 (as amended) PROVIDERS who apply or bid for an award of $100,000 or more shall file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant, or any other award covered by 31 U.S.C. § 1352. Each tier shall also disclose any lobbying with non -Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the recipient who in turn will forward the certification(s) to the awarding agency. C. Procurement of Recycled/Recovered Materials (1) In the performance of this contract, the PROVIDER shall make maximum use of products containing recovered materials that are EPA -designated items unless the product cannot be acquired— (i) Competitively within a timeframe providing for compliance with the contract performance schedule; (ii) Meeting contract performance requirements; or (iii) At a reasonable price. (2) Information about this requirement is available at EPA's Comprehensive Procurement Guidelines web site, https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program. (3) The PROVIDER also agrees to comply with all other applicable requirements of Section 6002 of the Solid Waste Disposal Act. D. Prohibition on Contracting for Covered Telecommunications Equipment or Services (a) Definitions. As used in this clause, the terms backhaul; covered foreign country; covered telecommunications equipment or services; interconnection arrangements; roaming; substantial or essential component; and telecommunications equipment or services have the meaning as defined in FEMA Policy 405-143-1, Prohibitions on Expending FEMA Award Funds for Covered Telecommunications Equipment or Services (Interim), as used in this clause— (b) Prohibitions. (1) Section 889(b) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. No. 115-232, and 2 C.F.R. § 200.216 prohibit the head of an executive agency on or after Aug.13, 2020, from obligating or expending grant, cooperative agreement, loan, or loan guarantee funds on certain telecommunications products or from certain entities for national security reasons. 6 15 (2) Unless an exception in paragraph (c) of this clause applies, the PROVIDER and its subcontractors may not use grant, cooperative agreement, loan, or loan guarantee funds from the Federal Emergency Management Agency to: (i) Procure or obtain any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology of any system; (ii) Enter into, extend, or renew a contract to procure or obtain any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology of any system; (iii) Enter into, extend, or renew contracts with entities that use covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system; or (iv) Provide, as part of its performance of this contract, subcontract, or other contractual instrument, any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any System. (c) Exceptions. (1) This clause does not prohibit PROVIDERS from providing— (i) A service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements; or (ii) Telecommunications equipment that cannot route or redirect user data traffic or permit visibility into any user data or packets that such equipment transmits or otherwise handles. (2) By necessary implication and regulation, the prohibitions also do not apply to: (i) Covered telecommunications equipment or services that: L Are not used as a substantial or essential component of any system; and ii. Are not used as critical technology of any system. (ii) Other telecommunications equipment or services that are not considered covered telecommunications equipment or services. (d) Reporting requirement. (1) In the event the PROVIDER identifies covered telecommunications equipment or services used as a substantial or essential component of any system, or as critical technology as part of any system, during contract performance, or the PROVIDER is notified of such by a subcontractor at any tier or by any other source, the PROVIDER shall report the information in paragraph (d)(2) of this clause to the recipient or subrecipient, unless elsewhere in this contract are established procedures for reporting the information. (2) The PROVIDER shall report the following information pursuant to paragraph (d)(1) of this clause: (i) Within one business day from the date of such identification or notification: The contract number; the order number(s), if applicable; supplier name; supplier unique entity identifier (if known); supplier Commercial and Government Entity (CAGE) code (if known); brand; model number (original equipment manufacturer number, manufacturer part number, or wholesaler number); item description; and any readily available information about mitigation actions undertaken or recommended. (ii) Within 10 business days of submitting the information in paragraph (d)(2)(i) of this clause: Any further available information about mitigation actions undertaken or recommended. In addition, the PROVIDER shall describe the efforts it undertook to prevent use or submission of covered telecommunications equipment or services, and any additional efforts that will be incorporated to prevent future use or submission of covered telecommunications equipment or services. (e) Subcontracts. The PROVIDER shall insert the substance of this clause, including this paragraph (e), in all subcontracts and other contractual instruments. 7 16 E. Domestic Preference for Procurements As appropriate, and to the extent consistent with law, the PROVIDER should, to the greatest extent practicable, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States. This includes, but is not limited to iron, aluminum, steel, cement, and other manufactured products. For purposes of this clause: Produced in the United States means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States. Manufactured products mean items and construction materials composed in whole or in part of non- ferrous metals such as aluminum; plastics and polymer -based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber. F. Access to Records The following access to records requirements apply to this contract: (1) The PROVIDER agrees to provide OWNER, the State of Florida, the FEMA Administrator, the Comptroller General of the United States, or any of their authorized representatives access to any books, documents, papers, and records of the PROVIDER which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts, and transcriptions. (2) The PROVIDER agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. (3) The PROVIDER agrees to provide the FEMA Administrator or his authorized representatives access to construction or other work sites pertaining to the work being completed under the contract. (4) In compliance with section 1225 of the Disaster Recovery Act of 2018, the OWNER and the PROVIDER acknowledge and agree that no language in this contract is intended to prohibit audits or internal reviews by the FEMA Administrator or the Comptroller General of the United States. G. DHS Seal, Logo, and Flags The PROVIDER shall not use the DHS seal(s), logos, crests, or reproductions of flags or likenesses of DHS agency officials without specific FEMA pre -approval. The PROVIDER shall include this provision in any subcontracts. H. Compliance with Federal Law, Regulations, and Executive Orders This is an acknowledgement that FEMA financial assistance will be used to fund all or a portion of the contract. The PROVIDER will comply will all applicable Federal law, regulations, executive orders, and FEMA policies, procedures, and directives. I. No Obligation by Federal Government The Federal Government is not a party to this contract and is not subject to any obligations or liabilities to the non -Federal entity, PROVIDER, or any other party pertaining to any matter resulting from the contract. J. Program Fraud and False or Fraudulent Statements or Related Acts The PROVIDER acknowledges that 31 U.S.C. Chap. 38 (Administrative Remedies for False Claims and Statements) applies to its actions pertaining to the contract. K. Affirmative Steps 8 17 If subcontracts are to be let, the prime PROVIDER is required to take all necessary steps identified in 2 C.F.R. § 200.321(b)(1)-(5) to ensure that small and minority businesses, women's business enterprises, and labor surplus area firms are used when possible. L. License and Delivery of Works Subject to Copyright and Data Rights: The PROVIDER grants to the Owner a paid-up, royalty -free, nonexclusive, irrevocable, worldwide license in data first produced in the performance of this contract to reproduce, publish, or otherwise use, including prepare derivative works, distribute copies to the public, and perform publicly and display publicly such data. For data required by the contract but not first produced in the performance of this contract, the PROVIDER will identify such data and grant to the Owner or acquires on its behalf a license of the same scope as for data first produced in the performance of this contract. Data, as used herein, shall include any work subject to copyright under 17 U.S.C. § 102, for example, any written reports or literary works, software and/or source code, music, choreography, pictures or images, graphics, sculptures, videos, motion pictures or other audiovisual works, sound and/or video recordings, and architectural works. Upon or before the completion of this contract, the PROVIDER will deliver to the Owner data first produced in the performance of this contract and data required by the contract but not first produced in the performance of this contract in formats acceptable by the Owner. Article 11: TERMINATION OF CONTRACT A. The occurrence of any of the following shall constitute a default by PROVIDER and shall provide the OWNER with a right to terminate this Contract in accordance with this Article, in addition to pursuing any other remedies which the OWNER may have under this Contract or under law: (1) if in the OWNER's opinion PROVIDER is improperly performing work or violating any provision(s) of the Contract Documents; (2) if PROVIDER neglects or refuses to correct defective work or replace defective parts or equipment, as directed by the Engineer pursuant to an inspection; (3) if in the OWNER's opinion PROVIDER's work is being unnecessarily delayed and will not be finished within the prescribed time; (4) if PROVIDER assigns this Contract or any money accruing thereon or approved thereon; or (5) if PROVIDER abandons the work, is adjudged bankrupt, or if he makes a general assignment for the benefit of his creditors, or if a trustee or receiver is appointed for PROVIDER or for any of his property. B. OWNER shall, before terminating the Contract for any of the foregoing reasons, notify PROVIDER in writing of the grounds for termination and provide PROVIDER with ten (10) calendar days to cure the default to the reasonable satisfaction of the OWNER. C. If the PROVIDER fails to correct or cure within the time provided in the preceding Sub -Article B, OWNER may terminate this Contract by notifying PROVIDER in writing. Upon receiving such notification, PROVIDER shall immediately cease all work hereunder and shall forfeit any further right to possess or occupy the site or any materials thereon; provided, however, that the OWNER may authorize PROVIDER to restore any work sites. D. The PROVIDER shall be liable for: (1) any new cost incurred by the OWNER in soliciting bids or proposals for and letting a new contract; and 9 18 (2) the difference between the cost of completing the new contract and the cost of completing this Contract; (3) any court costs and attorney's fees associated with any lawsuit undertaken by OWNER to enforce its rights herein. E. TERMINATION FOR CONVENIENCE: OWNER may at any time and for any reason terminate PROVIDER's services and work for OWNER's convenience. Upon receipt of notice of such termination PROVIDER shall, unless the notice directs otherwise, immediately discontinue the work and immediately cease ordering of any materials, labor, equipment, facilities, or supplies in connection with the performance of this Contract. Upon such termination PROVIDER shall be entitled to payment only as follows: (1) the actual cost of the work completed in conformity with this Contract and the specifications; plus, (2) such other costs actually incurred by PROVIDER as are permitted by the prime contract and approved by the OWNER. PROVIDER shall not be entitled to any other claim for compensation or damages against the County in the event of such termination. F. TERMINIATION IN REGARDS TO F.S. 287.135: TERMINATION IN REGARDS TO F.S. 287.135: PROVIDER certifies that it and those related entities of PROVIDER as defined by Florida law are not on the Scrutinized Companies that Boycott Israel List, created pursuant to s. 215.4725 of the Florida Statutes, and are not engaged in a boycott of Israel. In addition, if this agreement is for goods or services of one million dollars or more, PROVIDER certifies that it and those related entities of PROVIDER as defined by Florida law are not on the Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, created pursuant to Section 215.473 of the Florida Statutes and are not engaged in business operations in Cuba or Syria. OWNER may terminate this Contract if PROVIDER is found to have submitted a false certification as provided under section 287.135(5), Florida Statutes, been placed on the Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, or been engaged in business operations in Cuba or Syria, as defined by section 287.135, Florida Statutes. OWNER may terminate this Contract if PROVIDER, including all wholly owned subsidiaries, majority-owned subsidiaries, and parent companies that exist for the purpose of making profit, is found to have been placed on the Scrutinized Companies that Boycott Israel List or is engaged in a boycott of Israel as set forth in section 215.4725, Florida Statutes. 10 19 IN WITNESS WHEREOF, OWNER and PROVIDER have signed this Agreement in duplicate. One counterpart each has been delivered to OWNER and PROVIDER. All portions of the Contract Documents have been signed or identified by OWNER and PROVIDER or on their behalf. This Agreement will be effective on October 11, 2022. OWNER: PROVIDER: INDIAN RIVER COUNTY 0 Peter D. O'Bryan, Chairman By: Jason E. Brown, County Administrator APPROVED AS TO FORM AND LEGAL SUFFICIENCY: By: - — Dylan Reingold, County Attorney Jeffrey R. Smith, Clerk of Court and Comptroller Attest: Deputy Clerk (SEAL) Designated Representative: Name: Title: Address: Phone Email By: (PROVIDER) (CORPORATE SEAL) Attest Address for giving notices: License No. (Where applicable) Agent for service of process: Designated Representative: Name: Title: Address: Phone: Email: (If PROVIDER is a corporation or a partnership, attach evidence of authority to sign.) 11 20 Exhibit 1 to the Agreement — Pricing Provider type Hourly Rate Providers required Total Hourly Rate 1. Nurse (at least one RN) $175 2 $350 2. Certified Nursing Assistant/Home Health Aide $80 6 $480 3. Respiratory Assistant $100 1 $100 Total Team Hourly Rate $930 Rates are only effective when staff is on site (travel time is excluded). 12 21 CONSENT INDIAN RIVER COUNTY OFFICE OF MANAGEMENT AND BUDGET PURCHASING DIVISION DATE: October 3, 2022 TO: BOARD OF COUNTY COMMISSIONERS THROUGH: Jason E. Brown, County Administrator Kristin Daniels, Director, Office of Management and Budget FROM: Jennifer Hyde, Purchasing Manager SUBJECT: Second Extension and Amendment to Staffing Agreement with HireQuest Direct for Temporary Day Laborers BACKGROUND: HireQuest Direct was awarded Bid 2021017 for Temporary Day Laborers on February 2, 2021, and the first renewal and amendment was approved by the Board on September 21, 2021. The current term of the agreement for Temporary Day Laborers expires on December 31, 2022, with a one-year renewal available. Staff has determined renewal of this agreement to be in the best interest of the County. This agreement provides workers to perform flagging, mowing, and other general labor activities, primarily for the Road and Bridge Division. Due to the pending 10% increase to Florida's minimum wage from $10 to $11, HireQuest Direct has requested increases to their bid prices as shown on the table below. Staff agrees the requested changes are appropriate. Bid 2021017—Temoorary Dav Laborers FUNDING Funding for Bid 2021017 for Temporary Day Laborers will primarily come from the Road and Bridge Other Contractual Services account, 11121441-033490. 22 General Labor Hourly Rate FDOT-MOT Certified Flagger Labor Hourly Rate Original Bid Pricing $12.55 $13.00 Current Bid Pricing $14.22 $14.67 Requested Bid Pricing $15.69 $16.38 Current Requested Increase 10.3% 11.66% FUNDING Funding for Bid 2021017 for Temporary Day Laborers will primarily come from the Road and Bridge Other Contractual Services account, 11121441-033490. 22 CONSENT Account Name Account Number 1:74mount Transportation Fund/Road and Bridge/Other Contractual Services 1 11121441-033490 $60,000 RECOMMENDATION Staff recommends the Board of County Commissioners approve the Second Extension and Amendment and authorize the Chairman to execute it after the County Attorney has approved it as to form and legal sufficiency. ATTACHMENTS Second Extension and Amendment Request for Increase 23 SECOND EXTENSION AND AMENDMENT TO AGREEMENT FOR TEMPORARY DAY LABORERS This Second Extension and amendment to that certain Agreement to provide temporary day laborers is entered into effective as of October 11, 2022, by and between Indian River County, a political subdivision of the State of Florida ("County") and HireQuest Direct ("Contractor"). BACKGROUND RECITALS WHEREAS, the County and the Contractor entered into an Agreement for Temporary Day Laborers services effective February 2, 2021; and WHEREAS, Article 3 of the Agreement contains the term and renewal provisions; and WHEREAS, the first term commenced effective as of February 2, 2021, the first renewal was effective January 1, 2022, and will expire on December 31, 2022; and WHEREAS, pursuant to the Agreement, the parties desire to extend the Agreement for an additional one-year period; and WHEREAS, the parties desire to amend Article 4 — Contract Price; NOW, THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the County and the Contractor agree as follows: 1. The background recitals are true and correct and form a material part of this Second Extension and Amendment. 2. The second renewal term shall commence effective January 1, 2023 and shall end on December 31, 2023; no additional renewal terms are available. 3. Exhibit A Pricing is amended to reflect General Labor Hourly Rate at $15.69 and FDOT- MOT Certified Flagger Labor Hourly Rate at $16.38, effective October 11, 2022. 4. All other terms and provisions of the Agreement shall be unchanged and remain in full force and effect. 24 IN WITNESS WHEREOF, the parties have caused this Second Extension and Modification to be executed effective the day and year first set forth above. HireQuest Direct By: Printed name: Title: (Corporate Seal) Date: INDIAN RIVER COUNTY, FLORIDA. BOARD OF COUNTY COMMISSIONERS M. Peter D. O'Bryan, Chairman Attest: Jeffrey R. Smith, Clerk of Circuit Court And Comptroller By: Deputy Clerk Approved: Jason E. Brown County Administrator Approved as to form and legal sufficiency: William K. DeBraal Deputy County Attorney Kk Sept 20, 2022 HIREQUEST DIRECT The Right People at the Right Time RE: Annual Bid for Day Labor Bid # 2021017 To Our Valued Customer: Indian River County As you may know, on November 3, 2020, Florida voters passed Amendment 2, which will, over a number of years, increase Florida's minimum wage to $15.00 per hour. The next increase will occur September 30, 2022, when Florida's minimum wage increases from $10.00 per hour to $11.00 per hour. To help absorb a portion of the mandated increase in operating costs, we at HireQuest Direct are requesting a bill rate increase, effective September 30, 2022. Effective September 30, 2022, we are requesting the following increase: General Labor: $1.47 Flagger: $ 1.71 Please sign and return this new agreement to replace the existing rates agreed upon. Thank you for your understanding and we will continue to strive to earn your loyalty. Yours in Service, Chris Edick Chris.edick@hirequestdirect.com Regional Manager HireQuest Direct Received and accepted by: Date: 4200 54th Avenue North • St. Petersburg, FL 33714 Phone: 727-525-6800 • Fax: 727-525-6811 26 www.hirequest-direct.com K0, CONSENT INDIAN RIVER COUNTY MEMORANDUM TO: Jason Brown County Administrator FROM: Suzanne Boyll Human Resources Director DATE: October 4, 2022 SUBJECT: Adoption of Plan Documents Related to the Award of RFP 2022040 —457(b) Deferred Compensation Plan Recordkeeping Services to Lincoln Financial Services BACKGROUND: At its May 3, 2022 meeting, the Board of County Commissioners awarded RFP 2022040 to Lincoln Financial Services and authorized the County to enter into an agreement for recordkeeping services with Lincoln Financial Services for the County's 457 (b) Deferred Compensation Plan. The plan transition is underway and the associated documents related to the plan were signed by the County Administrator at the end of September 2022, during the Chairman's absence. Chairman of the Deferred Compensation Committee and Clerk of the Court and Comptroller, Jeffrey Smith, has been integrally involved in the plan transition as well as the other committee members. The following plan documents are submitted for adoption by the Board. • Indian River County BOCC Deferred Compensation Plan for Public Employees 457 Governmental Plan and Trust effective September 29, 2022 • Trust Agreement between Indian River County BOCC and Lincoln Financial Group Trust Company • Recordkeeping Service Agreement between Lincoln Retirement Services Company, LLC and Indian River County BOCC effective September 29, 2022 • Investment Advisory Services Agreement between Morningstar Investment Management LLC and Plan Sponsor (Indian River County BOCC) Copies will be maintained in the Clerk's office as well as Human Resources Department. RECOMMENDATION: Staff respectfully requests the Board adopt the plan documents associated with the Award of RFP2022040 to serve as record -keeper for the 457(b) Deferred Compensation Plan. 27 Lincoln Financial Group - Suzanne Boyll Indian River County BOCC 1800 271i St Vero Beach, FL 32960 The Lincoln National Life Insurance Company. Lincoln Life & Annuity Company of New York and/or Lincoln Retirement Services Company, LLC, are herein separately and collectively referred to as "Lincoln.' August 26, 2022 RE: Plan name: Indian River County BOCC Deferred Compensation Plan for Public Employees 457 Governmental Plan and Trust Plan ID: INDR-001 Plan document for signature Dear Ms. Boyll: Lincoln is pleased to support you in the administration of your retirement plan document. Accompanying this letter are important documents that are specific to your plan. Please carefully review all of the documents listed to ensure that they accurately reflect the intended plan design and that you understand your roles and responsibilities for the administration of your plan. You will need to sign and return certain documents, as indicated in the corresponding document package. We recommend that you consult with your legal counsel or tax advisor, as these documents have significant legal and tax ramifications. Additionally, we recommend keeping a copy of the proper authorization for adopting the plan document, along with the executed documents, in your files. Proper authorization may be a Board Resolution, an officer directive, or any other format you and your legal counsel decide is appropriate. Documents requiring signature 457(b) Governmental Important note: Do not sign the plan document if it does not accurately reflect Deferred Compensation your understanding of the plan provisions. Please contact us to discuss any Plan Document necessary changes. We will not be able to administer the plan according to this document's provisions until we receive this signed document. This document contains the provisions of the plan. ❑ The plan document must be signed and dated PRIOR to September 29, 2022. ❑ After reviewing the plan document, please sign and date it as directed in the document package. All listed pages must be fully executed in order to implement the provisions under the plan document: • Page 37: An authorized representative of the employer must sign and date. ❑ Once fully executed, a signed copy of the entire plan document will be delivered to designated parties. Keep a copy of the signed plan document with your plan records. Lincoln Financial Group is the marketing name for Lincoln National Corporation and its affiliates. Affiliates are separately responsible for their own financial and conlractual obligations. M Lincoln is committed to provi ing the highest quality retirement plan services. Your prompt attention to this material enhances our ability to service your plan. If you have questions about the information presented, please contact your implementation partner by phone at 260-455-6703 or via email at Tisha.Howell@LFG.com. Sincerely, Carolyn Gunning Plan Document Consultant RPS Operations Retirement Plan Services Enclosures Lincoln Financial Group is the marketing name for Lincoln National Corporation and its affiliates. Affiliates are separately responsible for their own financial and contractual obligations. PAD -4911064-081922 RBC-0822-LTR006 201 29 r]Lincohi Financial Group, You're In Chargee Indian River County BOCC Deferred Compensation Plan for Public Employees 457 Governmental Plan and Trust Effective Date of This Document September 29, 2022 Lincoln Retirement Services Company LLC 1301 S. Harrison Street Fort Wayne, IN 46802 800-248-0838 Specimen 457(b) Plan Document Deferred Compensation Plan 30 TABLE OF CONTENTS PREAMBLE..................................................................................................................................1 SECTIONI DEFINITIONS......................................................................................................... 2 1.1 Plan Definitions............................................................................................................2 SECTION II PARTICIPATION AND CONTRIBUTIONS.................................................... 6 2.1 Eligibility.......................................................................................................................6 2.2 Election..........................................................................................................................6 2.3 Commencement of Participation................................................................................7 2.4 Amendment of Annual Deferral Election, Investment Direction, or BeneficiaryDesignation...............................................................................................7 2.5 Information Provided by the Participant..................................................................7 2.6 Contributions Made Promptly....................................................................................7 2.7 Employer Contributions..............................................................................................7 2.8 Leave of Absence..........................................................................................................8 2.9 Disability.......................................................................................................................8 2.10 Protection of Persons Who Serve in a Uniformed Service.......................................8 2.11 Corrective Measures....................................................................................................8 2.12 Vesting of Account Balance.........................................................................................8 SECTION III LIMITATIONS ON AMOUNTS DEFERRED ................................................. 9 3.1 Basic Annual Limitation..............................................................................................9 3.2 Age 50 Catch-up Annual Deferral Contributions.....................................................9 3.3 Special Section 457 Catch-up Limitation...................................................................9 3.4 Special Rules...............................................................................................................10 3.5 Correction of Excess Deferrals.................................................................................11 SECTION IV INVESTMENT RESPONSIBILITIES.............................................................12 4.1 Investment of Deferred Amount...............................................................................12 4.2 Investment Election for Future Contributions........................................................12 4.3 Investment Changes for an Existing Account Balance...........................................12 4.4 Investment Responsibility.........................................................................................12 4.5 Default Investment Fund...........................................................................................12 4.6 Statements...................................................................................................................12 SECTIONV LOANS..................................................................................................................13 5.1 Loans...........................................................................................................................13 SECTION VI DISTRIBUTIONS..............................................................................................14 6.1 Distributions from the Plan.......................................................................................14 6.2 Benefit Distributions Upon Severance from Employment.....................................14 6.3 Distributions on Account of Participant's Death....................................................15 6.4 Distribution of Small Account Balances Without Participant's Consent.............15 6.5 Forms of Distribution................................................................................................16 6.6 Minimum Distribution Requirements......................................................................16 Specimen 457(b) Plan Document Deferred Compensation Plan 31 6.7 Payments to Minors and Incompetents....................................................................22 6.8 Procedure When Distributee Cannot Be Located...................................................22 6.9 Direct Rollover...........................................................................................................22 6.10 Inservice Distributions...............................................................................................23 6.11 Qualified Distributions for Retired Public Safety Officers....................................26 SECTION VII ROLLOVERS AND PLAN TRANSFERS..................................................... 27 7.1 Eligible Rollover Contributions to the Plan............................................................27 7.2 Plan -to -Plan Transfers to the Plan...........................................................................27 7.3 Plan -to -Plan Transfers from the Plan......................................................................28 7.4 Permissive Service Credit Transfers........................................................................29 SECTION VIII BENEFICIARY............................................................................................... 30 8.1 Beneficiary Designation.............................................................................................30 SECTION IX ADMINISTRATION AND ACCOUNTING ................................................... 31 9.1 Administrator .............................................................................................................31 9.2 Administrative Costs................................................................................................31 9.3 Paperless Administration..........................................................................................31 SECTIONX AMENDMENTS.................................................................................................. 33 10.1 Amendment................................................................................................................33 10.2 Conformation.............................................................................................................33 10.3 Plan Termination.......................................................................................................33 SECTIONXI TRUST FUND..................................................................................................... 34 11.1 Trust Fund..................................................................................................................34 SECTION XII MISCELLANEOUS......................................................................................... 35 12.1 Non-Assignability.......................................................................................................35 12.2 Domestic Relation Orders.........................................................................................35 12.3 IRS Levy.....................................................................................................................35 12.4 Mistaken Contributions.............................................................................................35 12.5 Employment................................................................................................................36 12.6 Successors and Assigns..............................................................................................36 12.7 Written Notice............................................................................................................36 12.8 Total Agreement.........................................................................................................36 12.9 Gender.........................................................................................................................36 12.10 Controlling Law.........................................................................................................36 u Specimen 457(b) Plan Document Deferred Compensation Plan 32 457(b) PLAN DOCUMENT DEFERRED COMPENSATION PLAN PREAMBLE Adoption of Plan The Indian River County BOCC Deferred Compensation Plan for Public Employees 457 Governmental Plan and Trust (hereinafter "the Plan"), an eligible deferred compensation plan within the meaning of Section 457(b) of the Internal Revenue Code of 1986, as amended (hereinafter the "Code"), of a State or local government as described in Code Section 457(e)(1)(A), that meets the requirements of Code Section 401(a)(37), originally adopted by Indian River County BOCC (hereinafter the 'Employer") effective March 1, 1998 and hereby amended effective as of September 29, 2022. Pumose of Plan The primary purpose of this Plan is to permit Employees of the Employer to enter into an agreement which will provide for deferral of payment of a portion of his or her current compensation until death, retirement, Severance from Employment, or other event, in accordance with the provisions of the Code Section 457(b), with other applicable provisions of the Code, and in accordance with the General Statutes of the State. Status of Plan It is intended that the Plan shall qualify as an eligible deferred compensation plan within the meaning of Code Section 457(b) sponsored by an eligible employer within the meaning of Code Section 457(e)(1)(A), i.e., a State, political subdivision of a State, or agency or instrumentality of a State or political subdivision of a State. Tax Conseauences of Plan The Employer does not and cannot represent or guarantee that any particular federal or State income, payroll, or other tax consequence will occur by reason of participation in this Plan. A Participant should consult with his or her own counsel or other representative regarding all tax or other consequences of participation in this Plan. Specimen 457(b) Plan Document Deferred Compensation Plan 33 SECTION I DEFINITIONS 1.1 Plan Definitions For purposes of this Plan, the following words and phrases have the meaning set forth below, unless a different meaning is plainly required by the context: An "Account Balance" means the bookkeeping account maintained with respect to each Participant which reflects the value of the deferred Compensation credited to the Participant, including the Participant's Annual Deferrals, the earnings or loss of the Trust Fund (net of Trust Fund expenses) allocable to the Participant, any transfers for the Participant's benefit, and any distribution made to the Participant or the Participant's Beneficiary. If a Participant has more than one Beneficiary at the time of the Participant's death, then a separate Account Balance shall be maintained for each Beneficiary. The Account Balance includes any account established under Section VII for rollover contributions and plan -to -plan transfers made for a Participant, the account established for a Beneficiary after a Participant's death, and any account or accounts established for an alternate payee (as defined in Code Section 414(p)(8)). The "Administrator" means the Employer. The term Administrator includes any person or persons, committee, or organization appointed by the Employer to administer the Plan. An "Annual Deferral" means the amount of Compensation deferred in any calendar year. The "Beneficiary" of a Participant means the person or persons (or, if none, the Participant's surviving spouse, or if the Participant has no surviving spouse, the Participant's surviving children in equal shares, or if there are no surviving children, the Participant's estate) who is entitled under the provisions of the Plan to receive a distribution in the event the Participant dies before receiving distribution of his or her entire interest under the Plan. If a married Participant designates his or her spouse as Beneficiary under the Plan, such designation shall automatically become null and void as of the date of any final divorce or similar decree or order; except that the Participant may re -designate such former spouse as his or her Beneficiary after the date of the final decree or order. The "Code" means the Internal Revenue Code of 1986, as now in effect or as hereafter amended from time to time. Reference to a Code Section includes such section and any comparable section or sections of any future legislation that amends, supplements, or supersedes such section. The "Compensation" of a Participant means all cash compensation for services to the Employer that is includible in the Employee's gross income for the calendar year, including, as applicable, compensation attributable to services as an independent contractor, plus amounts that would be cash compensation for services to the Employer includible in the Employee's gross income for the calendar year but for a compensation reduction election under Code Section 125, 132(f), 401(k), 403(b), or 457(b) (including an election to defer compensation under Section II). 2 Specimen 457(b) Plan Document Deferred Compensation Plan 34 Any payments described below made to a Participant after a Severance from Employment shall qualify as Compensation for purposes of the Plan, but only if the payments are made by the later of (a) the end of the calendar year in which the Severance from Employment occurred or (b) within 2 % months of such Severance from Employment: (a) Compensation that, absent a Severance from Employment, would have been paid to the Participant while the Participant continued in employment with the Employer, but only if such payments constitute regular compensation for services during the Participant's regular working hours, compensation for services outside the Participant's regular working hours (such as overtime or a shift differential), commissions, bonuses or other similar payments that would otherwise be included in determining Compensation under the Plan. (b) Payments for accrued bona fide sick, vacation or other leave, but only if the Participant would have been able to use the leave if employment had continued. Any payment that is not described above shall not be considered Compensation if it is paid after the date of the Participant's Severance from Employment, even if it is paid within 2 'h months of such date. Thus, for example, Compensation does not include severance pay. For years beginning after December 31, 2008, (a) a Participant receiving a differential wage payment, as defined by Code Section 3401(h)(2), by reason of qualified military service (within the meaning of Code Section 414(u)), is treated as an Employee of the Employer making the payment and (b) the differential wage payment is treated as Compensation. An "Employee" means each natural person who is employed by the Employer as a common law employee on a full time basis or on a part-time basis and any employee in an elected or appointed position; provided, however, that the term Employee shall not include a leased employee or any employee who is included in a unit of employees covered by a collective bargaining agreement that does not specifically provide for participation in the Plan. Any individual who is not treated by the Employer as a common law employee of the Employer shall be excluded from Plan participation even if a court or administrative agency determines that such individual is a common law employee of the Employer, unless the Employer has included the individual in Plan participation as an independent contractor. An "Employer" means the eligible employer (within the meaning of Code Section 457(e)(1)) that has adopted the Plan. In the case of an eligible employer that is an agency or instrumentality of a political subdivision of a State within the meaning of Code Section 457(e)(1)(A), the term Employer shall include any other agency or instrumentality of the same political subdivision that has adopted the Plan. An "Employer Contribution" means Annual Deferrals made to the Account Balance of a Participant by the Employer on a non -elective basis. "Includible Compensation" means, with respect to a taxable year, the Participant's compensation as defined in Code Section 415(c)(3) and the regulations thereunder, for services 3 Specimen 457(b) Plan Document Deferred Compensation Plan 35 performed for the Employer. The amount of Includible Compensation is determined without regard to any community property laws. "Normal Retirement Age" means age 70 '/2, unless the Participant has elected an alternate Normal Retirement Age and delivered such election to the Administrator. Such date shall be no earlier than the earliest date that the Participant will become eligible to retire and receive, under the basic defined benefit pension plan of the Employer (or a money purchase plan in which the Participant also participates if the Participant is not eligible to participate in a defined benefit plan) immediate retirement benefits without actuarial or similar reduction because of retirement before some later specified age, but not greater than age 70 '/Z. If a Participant continues employment after attaining age 70'/z, not having previously elected an alternate Normal Retirement Age, the Participant's alternate Normal Retirement Age shall not be later than the mandatory retirement age, if any, established by the Employer, or any age at which the Participant actually has a Severance from Employment if the Employer has no mandatory retirement age. If the Participant will not become eligible to receive benefits under a basic defined benefit pension plan (or money purchase pension plan, if applicable) maintained by the Employer, the Participant's alternate Normal Retirement Age may not be earlier than age 65 and may not be later than age 70 '/2. In the event a Participant is a qualified police or firefighter (as defined under Code Section 415(b)(2)(1T)(ii)(I)) Normal Retirement Age means age 70 '/2, unless the Participant has elected an alternate Normal Retirement Age and delivered such election to the Administrator, which may not be earlier than age 40 and may not be later than age 70 %z. A Participant's Normal Retirement Age must be the same as his or her Normal Retirement Age under any other eligible deferred compensation plan or plans sponsored by the Employer. The designation of a Normal Retirement Age under the Plan does not compel retirement with the Employer. The "Participant" means an individual who is currently deferring Compensation, or who has previously deferred Compensation under the Plan by salary reduction and who has not received a distribution of his or her entire benefit under the Plan. Only individuals who perform services for the Employer as an Employee may defer Compensation under the Plan. A "Plan Year" means the calendar year. "Roth Contributions" means the amount of any Annual Deferral elected by a Participant that is irrevocably designated by the Participant as being made pursuant to, and intended to comply with, Code Section 402A. Roth Contributions are includable in the Participant's taxable gross income at the time they are contributed to the Plan and have been irrevocably designated as Roth Annual Deferrals by the Participant in their deferral agreement. The Administrator shall establish and maintain for the Employee a separate account for any Roth Contributions made to the Plan, to which only Roth Contributions and the income attributable thereto shall be allocated. Roth Contributions also include any contributions made to another eligible retirement plan that are rolled over to the Plan in accordance with the provisions of Section 7.1 and that the Participant designated as Roth contributions at the time they were contributed to such other plan. 4 Specimen 457(b) Plan Document Deferred Compensation Plan 36 "Severance from Employment" means the date that the Employee dies, retires, or otherwise has a severance from employment with the Employer, as determined by the Administrator (and taking into account guidance issued under the Code). Solely for the purpose of determining whether the Participant is entitled to receive a distribution of his or her Account Balance pursuant to Section 6.2, a Participant shall be treated as having incurred a Severance from Employment during any period the Participant is performing service in the uniformed services (as defined in chapter 43 of title 38, United States Code) while on active duty for a period of more than 30 days. The "State" means the State that is the Employer or of which the Employer is a political subdivision, agency, or instrumentality, including any agency or instrumentality of a political subdivision of the State, or the State in which the Employer is located. The "Trust Fund" means the trust fund created under and subject to a trust agreement or a custodial account or contract described in Code Section 401(f) held on behalf of the Plan. The "Valuation Date" means each business day. Specimen 457(b) Plan Document Deferred Compensation Plan 37 SECTION II PARTICIPATION AND CONTRIBUTIONS 2.1 Eligibility Each Employee shall be eligible to participate in the Plan and defer Compensation hereunder immediately upon becoming employed by the Employer. 2.2 Election An Employee may elect to become a Participant by executing an election to defer a portion of his or her Compensation (and to have that amount contributed as an Annual Deferral on his or her behalf) and filing such election with the Administrator. This participation election shall be made on the deferral agreement provided by the Administrator under which the Employee agrees to be bound by all the terms and conditions of the Plan. Any such election shall remain in effect until a new election is filed. The Administrator may establish a minimum deferral amount, and may change such minimums from time to time. The deferral agreement shall also include designation of investment funds and a designation of Beneficiary. The deferral agreement may also include a Participant's designation that all or a portion of the Annual Deferral elected by the Participant shall be treated as Roth Contributions. (a) Special Deferral Election of Sick, Vacation, or Back Pay: A Participant who has not had a Severance from Employment may authorize a special election to defer accumulated sick pay, accumulated vacation pay, and back pay for any calendar month if an election to defer is entered into before the beginning of the month in which the amounts would otherwise be paid or made available and the Participant is an Employee on the date the amounts would otherwise be paid or made available. For this purpose, Compensation that would otherwise be paid for a payroll period that begins before Severance from Employment is treated as an amount that would otherwise be paid or made available before an Employee has a Severance from Employment. In addition, a Participant who is a former Employee may elect to defer accumulated sick pay, accumulated vacation pay, and back pay that is paid by the later of 2 '/z months following the date of the Participant's Severance from Employment or the end of the calendar year in which the Severance from Employment occurred, provided that the special election to defer is entered into before the amount is currently available. (b) Special Deferral Election of Bonuses: A Participant who has not had a Severance from Employment may authorize a special election to defer that portion of his or her Compensation attributable to Employer paid cash bonuses up to 100% of such bonuses if an election to defer is entered into before the beginning of the month in which the amounts would otherwise be paid or made available and the Participant is an Employee on the date the bonus would otherwise be paid or made available. 6 Specimen 457(b) Plan Document Deferred Compensation Plan 38 2.3 Commencement of Participation An Employee shall become a Participant as soon as administratively practicable following the date the Employee files an election pursuant to Section 2.2. Such election shall become effective no earlier than the calendar month following the month in which the election is made. A new Employee may defer Compensation payable in the calendar month during which the Participant first becomes an Employee if an agreement providing for the deferral is entered into on or before the first day on which the Participant performs services for the Employer. 2.4 Amendment of Annual Deferral Election, Investment Direction, or Beneficiary Designation Subject to other provisions of the Plan, a Participant may at any time revise his or her participation election, including a change of the amount of his or her Annual Deferrals, his or her investment direction and his or her designated Beneficiary. The revised participation election may also include a change in the Participant's designation of the amount of the Annual Deferral elected by the Participant that is to be treated as Roth Contributions. Unless the election specifies a later effective date, a change in the amount of the Annual Deferrals shall take effect as of the first day of the next following month or as soon as administratively practicable if later. A change in the investment direction shall take effect as of the date provided by the Administrator on a uniform basis for all Employees. A change in the Beneficiary designation shall take effect when the election is accepted by the Administrator. 2.5 Information Provided by the Participant Each Employee enrolling in the Plan should provide to the Administrator at the time of initial enrollment, and later if there are any changes, any information necessary or advisable for the Administrator to administer the Plan, including, without limitation, whether the Employee is a participant in any other eligible plan under Code Section 457(b). 2.6 Contributions Made Promptly Annual Deferrals by the Participant under the Plan shall be transferred to the Trust Fund within a period that is not longer than is reasonable for the proper administration of the Participant's Account Balance. For this purpose, Annual Deferrals shall be treated as contributed within a period that is not longer than is reasonable for the proper administration if the contribution is made to the Trust Fund within 15 business days following the end of the month in which the amount would otherwise have been paid to the Participant, or earlier if required by law. 2.7 Employer Contributions Nothing in this Plan prohibits the Employer from making Employer Contributions to the Account Balance of a Participant on a non -elective basis, including but not limited to Employer matching contributions, subject to the Participant's contribution limits in Section III. 7 Specimen 457(b) Plan Document Deferred Compensation Plan 39 2.8 Leave of Absence Unless an election is otherwise revised, if a Participant is absent from work by leave of absence, Annual Deferrals under the Plan shall continue to the extent that Compensation continues. 2.9 Disability A disabled Participant (as determined by the Administrator) may elect Annual Deferrals during any portion of the period of his or her disability to the extent that he or she has actual Compensation (not imputed Compensation and not disability benefits) from which to make contributions to the Plan and has not had a Severance from Employment. 2.10 Protection of Persons Who Serve in a Uniformed Service An Employee whose employment is interrupted by qualified military service under Code Section 414(u) or who is on a leave of absence for qualified military service under Code Section 414(u) may elect to make additional Annual Deferrals upon resumption of employment with the Employer equal to the maximum Annual Deferrals that the Employee could have elected during that period if the Employee's employment with the Employer had continued (at the same level of Compensation) without the interruption or leave, reduced by the Annual Deferrals, if any, actually made for the Employee during the period of the interruption or leave. This right applies for five years following the resumption of employment (or, if sooner, for a period equal to three times the period of the interruption or leave). A reemployed Employee shall also be entitled to an allocation of any additional Employer Contributions, if applicable, that such Employee would have received under the Plan had the Employee continued to be employed as an eligible Employee during the period of qualified military service. Such restorative Employer Contributions (without interest), if applicable, shall be remitted by the Employer to the Plan on behalf of the Employee within 90 days after the date of the Employee's reemployment or, if later, as of the date the contributions are otherwise due for the year in which the applicable qualified military service was performed. 2.11 Corrective Measures In the event that an otherwise eligible Employee is erroneously omitted from Plan participation, or an otherwise ineligible individual is erroneously included in the Plan, the Employer shall take such corrective measures as may be permitted by applicable law. Such measures may include, in the case of an erroneously omitted Employee, contributions made by the Employer to the Plan on behalf of such Employee equal to the missed deferral opportunity, subject to the Participant's contribution limits in Section III, and, in the case of an erroneously included individual, a payment by the Employer to such individual of additional Compensation in an amount equal to the amount of the individual's elective deferrals under the Plan. 2.12 Vesting of Account Balance A Participant's vested interest in his Account Balance shall be at all times 100%. 8 Specimen 457(b) Plan Document Deferred Compensation Plan 40 SECTION III LIMITATIONS ON AMOUNTS DEFERRED 3.1 Basic Annual Limitation (a) The maximum amount of the Annual Deferral and, if applicable, Employer Contributions under the Plan for any calendar year shall not exceed the lesser of: (i) The "applicable dollar amount" (as defined in paragraph (b) below); or (ii) The Participant's Includible Compensation (as defined in Code Section 415(c)(3)) for the calendar year. (b) The "applicable dollar amount" means the amount established under Code Section 457(e)(15), as indexed. (c) Rollover amounts received by the Plan under Treasury Regulation Section 1.457-10(e) and any plan -to -plan transfer into the Plan made pursuant to Section 7.2 shall not be applied against the Annual Deferral limit. 3.2 Age 50 Catch-up Annual Deferral Contributions A Participant who will attain age 50 or more by the end of a calendar year is permitted to elect an additional amount of Annual Deferral for the calendar year, up to the maximum age 50 catch-up Annual Deferral limit under §414(v)(2), as indexed. The amount of the age 50 catch-up Annual Deferral for any calendar year cannot exceed the amount of the Participant's Compensation, reduced by the amount of the elective deferred compensation, or other elective deferrals, made by the Participant under the Plan. The age 50 catch-up Annual Deferral limit is not available to a Participant for any calendar year for which the Special Section 457 Catch-up Limitation described in Section 3.3 is available and applied. 3.3 Special Section 457 Catch-up Limitation Notwithstanding the provisions of Sections 3.1 and 3.2, with respect to a year that is one of a Participant's last three (3) calendar years ending before the year in which the Participant attains Normal Retirement Age and the amount determined under this Section 3.3 exceeds the amount computed under Sections 3.1 and 3.2, then the Annual Deferral limit under this Section 3.3 shall be the lesser of: (a) An amount equal to two (2) times the Section 3.1 Applicable Dollar Amount for such year; or (b) The sum of: 9 Specimen 457(b) Plan Document Deferred Compensation Plan 41 (i) An amount equal to (A) the aggregate Section 3.1 limit for the current year plus each prior calendar year beginning after December 31, 2001, during which the Participant was an Employee under the Plan, minus (B) the aggregate amount of Compensation that the Participant deferred under the Plan during such years, plus (ii) An amount equal to (A) the aggregate limit referred to in Code Section 457(b)(2) for each prior calendar year beginning after December 31, 1978, and before January 1, 2002, during which the Participant was an Employee (determined without regard to Sections 3.2 and 3.3, minus (B) the aggregate contributions to Pre -2002 Coordination Plans (as defined in Section 3.4(c)) made by or on behalf of the Participant for such years. However, in no event can the deferred amount be more than the Participant's Compensation for the year. 3.4 Special Rules For purposes of this Section III, the following rules shall apply: (a) Participant Covered By More Than One Eligible Plan. If the Participant is or has been a participant in one or more other eligible plans within the meaning of Code Section 457(b), then this Plan and all such other plans shall be considered as one plan for purposes of applying the foregoing limitations of this Section III. For this purpose, the Administrator shall take into account any other such eligible plan maintained by the Employer and shall also take into account any other such eligible plan for which the Administrator receives from the Participant sufficient information concerning his or her participation in such other plan. (b) Pre -Participation Years. In applying Section 3.3, a year shall be taken into account only if (i) the Participant was eligible to participate in the Plan during all or a portion of the year and (ii) Compensation deferred, if any, under the Plan during the year was subject to the Basic Annual Limitation described in Section 3.1 or any other plan ceiling required by Code Section 457(b). (c) Pre -2002 Coordination Years. For purposes of Section 3.3(b)(ii)(B), "contributions to Pre -2002 Coordination Plans" means any employer contribution, salary reduction or elective contribution under any other eligible Code Section 457(b) plan, or a salary reduction or elective contribution under any Code Section 401(k) qualified cash or deferred arrangement, Code Section 402(h)(1)(B) simplified employee pension (SARSEP), Code Section 403(b) annuity contract, and Code Section 408(p) simple retirement account, or under any plan for which a deduction is allowed because of a contribution to an organization described in Code Section 501(c)(18), including plans, arrangements or accounts maintained by the Employer or any employer for whom the Participant performed services. However, the contributions for any calendar year are only taken into account for purposes of Section 3.3(b)(ii)(B) to the extent that the total of such contributions does not exceed the aggregate limit referred to in Code Section 457(b)(2) for that year. 10 Specimen 457(b) Plan Document Deferred Compensation Plan 42 (d) Disregard Excess Deferral. For purposes of Sections 3.1, 3.2, and 3.3, an individual is treated as not having deferred compensation under a plan for a prior taxable year if excess deferrals under the plan are distributed, as described in Section 3.5. To the extent that the combined deferrals for pre -2002 years exceeded the maximum deferral limitations, the amount is treated as an excess deferral for those prior years. 3.5 Correction of Excess Deferrals If the Annual Deferral on behalf of a Participant for any calendar year exceeds the limitations described above, or the Annual Deferral on behalf of a Participant for any calendar year exceeds the limitations described above when combined with other amounts deferred by the Participant under another eligible deferred compensation plan under Code Section 457(b) for which the Participant provides information that is accepted by the Administrator, then the Annual Deferral, to the extent in excess of the applicable limitation (adjusted for any income or loss in value, if any, allocable thereto), shall be distributed to the Participant as soon as administratively practicable after the Administrator determines that the amount is an excess deferral. If a Participant to whom distribution must be made in accordance with the preceding sentence has made Roth Contributions for the year, the amount distributed as an excess deferral shall be made first from pre-tax Annual Deferrals, then from Roth Contributions for the year unless otherwise specified. 11 Specimen 457(b) Plan Document Deferred Compensation Plan 43 SECTION IV INVESTMENT RESPONSIBILITIES 4.1 Investment of Deferred Amount Each Participant or Beneficiary shall direct the investment of amounts held in his or her Account Balance under the Plan among the investment options of the Trust Fund. The investment of amounts segregated on behalf of an alternate payee pursuant to a Plan qualified domestic relations order (as defined under Code Section 414(p)) may be directed by such alternate payee to the extent provided in such order. In the absence of such direction, such amounts shall be invested in the same manner as they were immediately before such segregation was made on account of such order. Each Account Balance shall share in any gains or losses of the investment(s) in which such account is invested. 4.2 Investment Election for Future Contributions A Participant may amend his or her investment election at such times and by such manner and form as prescribed by the Administrator. Such election will, unless specifically stated otherwise, apply only to future amounts contributed under the Plan. 4.3 Investment Changes for an Existing Account Balance The Participant, Beneficiary, alternate payee, or Administrator may elect to transfer amounts in his Account Balance among and between those investments available under the Trust Fund at such times and by such manner and form prescribed by the Administrator, subject further to any restrictions or limitations placed on any investment by the Administrator to be uniformly applied to all Participants. 4.4 Investment Responsibility To the extent that a Participant, Beneficiary, or alternate payee exercises control over the investment of amounts credited to his Account Balance, the Employer, the Administrator, and any other fiduciary of the Plan shall not be liable for any losses that are the direct and necessary result of investment instructions given by a Participant, Beneficiary or an alternate payee. 4.5 Default Investment Fund The Employer may designate a default investment fund. Any Participant who does not make an investment election on the deferral agreement provided by the Administrator will have his contributions invested in the default investment fund until such time he provides investment direction under Sections 4.2 and 4.3. 4.6 Statements The Administrator will cause statements to be issued periodically to reflect the contributions and actual earnings posted to the Account Balances. 12 Specimen 457(b) Plan Document Deferred Compensation Plan I" SECTION V LOANS 5.1 Loans The Employer may elect to make loans available to Participants who are Employees. If the Employer has elected to make loans available to Participants who are Employees, the Employer shall establish written guidelines governing the granting and administration of loans. 13 Specimen 457(b) Plan Document Deferred Compensation Plan 45 SECTION VI DISTRIBUTIONS 6.1 Distributions from the Plan (a) Earliest Distribution Date. Payments from a Participant's Account Balance shall not be made earlier than: (i) the Participant's Severance from Employment pursuant to Section 6.2 (ii) the Participant's death pursuant to Section 6.3 (iii) Plan termination under Section 10.3 (iv) an unforeseeable emergency withdrawal pursuant to Section 6.10(a), if permitted under the Plan (v) a de minimis Account Balance distribution pursuant to Section 6.10(b), if permitted under the Plan (vi) a rollover account withdrawal pursuant to Section 6.10(c), if permitted under the Plan (vii) attainment of age 70 '/a withdrawal pursuant to Section 6.10(d), if permitted under the Plan (viii) Qualified Military Service Deemed Severance withdrawal pursuant to Section 6.10(e), if permitted under the Plan (ix) Qualified Distributions for Retired Public Safety Officers pursuant to Section 6.11, if permitted under the Plan (b) Latest Distribution Date. In no event shall any distribution under this Section VI begin later than the Participant's "required beginning date". Such required minimum distributions must be made in accordance with Section 6.6. (c) Amount of Account Balance. Except as provided in Section 6.3, the amount of any payment under this Section VI shall be based on the amount of the Account Balance as of the Valuation Date. 6.2 Benefit Distributions Upon Severance from Employment Distributions required to commence under this section shall be made in the form of benefit provided under Section 6.5. Distributions postponed until the Participant's "required beginning date" will be made in a manner that meets the requirements of Section 6.6. 14 Specimen 457(b) Plan Document Deferred Compensation Plan 46 6.3 Distributions on Account of Participant's Death Upon receipt of satisfactory proof of the Participant's death, the designated Beneficiary may file a request with the Administrator to elect a form of benefit provided under Section 6.5 and made in a manner that meets the requirements of Section 6.6. (a) Death of Participant Before Distributions Begin. If the Participant dies before his or her distributions begin, the designated Beneficiary may elect to have distributions to be made (i) in full within 5 years of the Participant's death (5 -year rule) or (ii) in installments over the designated Beneficiary's "life expectancy" (life expectancy rule). If the designated Beneficiary does not make an election by September 30 of the year following the year of the Participant's death, the Participant's Account Balance will be distributed in a lump sum payment by December 31 of the calendar year containing the fifth anniversary of the Participant's death or if the Participant's spouse is the sole designated Beneficiary by December 31 of the year the Participant would have attained age 70 r/2. (b) Death of Participant On or After Date Distributions Begin. If the Participant dies on or after his or her distributions began, the Participant's Account Balance shall be paid to the Beneficiary at least as rapidly as under the payment option used before the Participant's death. For purposes of this Section, a Participant who dies on or after January 1, 2007, while performing qualified military service (as defined in Code Section 414(u)) will be deemed to have resumed employment in accordance with the Participant's reemployment rights under chapter 43 of title 38, United States Code, on the day preceding death and to have terminated employment on the actual date of death for purposes of determining the entitlement of the Participant's survivors to any additional benefits (other than benefit accruals relating to the period of qualified military service) provided under the Plan, in accordance with the provisions of Code Sections 401(a)(37), 414(u)(9), and 457(g)(4). 6.4 Distribution of Small Account Balances Without Participant's Consent Notwithstanding any other provision of the Plan to the contrary, if the amount of a Participant's or Beneficiary's Account Balance is not in excess of the amount specified below on the date that payments commence under Section 6.2 or on the date the Administrator is notified of the Participant's death, the Administrator may direct payment without the Participant's or Beneficiary's consent as soon as practicable following the Participant's retirement, death, or other Severance from Employment. (a) The Plan does not provide for distribution of small Account Balances without Participant or Beneficiary consent. 15 Specimen 457(b) Plan Document Deferred Compensation Plan 47 6.5 Forms of Distribution In an election to commence benefits under Section 6.2, a Participant entitled to a distribution of benefits under this Section VI may elect to receive payment in any of the forms of distribution offered under the Plan. Such election may be made or modified by the date 30 days prior to commencement of payment. If the Participant fails to elect a distribution option then the benefit shall be paid in the form of a lump sum payment to the Participant or Beneficiary. The forms of distribution available under the Plan are as follows: (a) a lump sum payment of the Participant's total Account Balance. (b) partial distribution of the Participant's Account Balance in a lump sum payment. (c) in a series of installments over a period of years (payable on a monthly, quarterly, semi- annual or annual basis) which extends no longer than the life expectancy of the Participant as permitted under Code Section 401(a)(9). (d) a purchase of a single premium nontransferable annuity contract for such term and in such form as the Participant selects that provides for payments in the form of an irrevocable annuity each calendar year of amounts not less than the amount required under Code Section 401(a)(9); including any annuity distribution options under a guaranteed income product, that are consistent with the Code and Regulations. 6.6 Minimum Distribution Requirements (a) General Rules. Notwithstanding anything in this Plan to the contrary, distributions from this Plan shall commence and be made in accordance with Code Section 401(a)(9) and the regulations promulgated thereunder. Additionally, the requirements of this Section 6.6 will take precedence over any inconsistent provisions of the Plan. (b) Time and Manner of Distribution. (i) Required Beginning Date. The Participant's entire interest will be distributed, or begin to be distributed, to the Participant no later than the Participant's "required beginning date". (ii) Death of Participant Before Distributions Begin. If the Participant dies before distributions begin, the Participant's entire interest will be distributed, or begin to be distributed, no later than as follows: (A) If the Participant's surviving spouse is the Participant's sole "designated Beneficiary", then distributions to the surviving spouse will begin by December 31 of the calendar year immediately following the calendar year in which the Participant dies, or by December 31 of the calendar year in which the Participant would have attained age 70'/2, if later. 16 Specimen 457(b) Plan Document Deferred Compensation Plan 48 (B) If the Participant's surviving spouse is not the Participant's sole "designated Beneficiary" (i.e., multiple beneficiaries), then distributions to the "designated Beneficiaries" will begin by December 31 of the calendar year immediately following the calendar year in which the Participant died. (C) If the Participant's sole "designated Beneficiary" is not the Participant's spouse, then distributions to the "designated Beneficiary" will begin by December 31 of the calendar year immediately following the calendar year in which the Participant died. (D) If there is no "designated Beneficiary" as of September 30 of the year following the year of the Participant's death, the Participant's Account Balance will be distributed in a lump sum payment by December 31 of the calendar year containing the fifth anniversary of the Participant's death. (E) If the Participant's surviving spouse is the Participant's sole "designated Beneficiary" and the surviving spouse dies after the Participant but before distributions to the surviving spouse begin, this subparagraph (b)(ii), other than subsection (b)(ii)(A), will apply as if the surviving spouse were the Participant. For purposes of this subparagraph (ii) and paragraph (d), unless subsection (b)(ii)(D) applies, distributions are considered to begin on the Participant's "required beginning date". If subsection (b)(ii)(E) applies, distributions are considered to begin on the date distributions are required to begin to the surviving spouse under subsection (b)(ii)(A). If distributions under an annuity purchased from an insurance company irrevocably commence to the Participant before the Participant's "required beginning date" (or to the Participant's surviving spouse before the date distributions are required to begin to the surviving spouse under subsection (b)(ii)(A)), the date distributions are considered to begin is the date distributions actually commence. (iii) Death of Participant On or After Distributions Begin. If the Participant dies on or after distributions begin and before depleting his or her Account Balance, distributions must commence to the "designated Beneficiary" by December 31 of the calendar year immediately following the calendar year in which the Participant died. (iv) Forms of Distribution. Unless the Participant's Account Balance is distributed in the form of an annuity contract or in a lump sum on or before the Participant's "required beginning date", as of the first distribution calendar year, distributions will be made in accordance with paragraphs (c) and (d). If the Participant's interest is distributed in the form of an annuity contract, distributions thereunder will be made in accordance with the requirements of Code Section 401(a)(9). (c) Required Minimum Distributions During the Participant's Lifetime. 17 Specimen 457(b) Plan Document Deferred Compensation Plan 49 (i) Amount of Required Minimum Distribution For Each "Distribution Calendar Year". During the Participant's lifetime, the minimum amount that will be distributed for each distribution calendar year is the lesser of: (A) The quotient obtained by dividing the "Participant's Account Balance" by the distribution period in the Uniform Lifetime Table set forth in Treasury Regulation Section 1.401(a)(9)-9, Q&A -2 using the Participant's age as of the Participant's birthday in the "distribution calendar year"; or (B) if the Participant's sole "designated Beneficiary" for the "distribution calendar year" is the Participant's spouse and the spouse is more than 10 years younger than the Participant, the quotient obtained by dividing the "Participant's Account Balance" by the distribution period in the Joint and Last Survivor Table set forth in Treasury Regulation Section 1.401(a)(9)- 9, Q&A -3 using the Participant's and spouse's attained ages as of the Participant's and spouse's birthdays in the "distribution calendar year". (ii) Lifetime Required Minimum Distributions Continue Through Year of Participant's Death. Required minimum distributions will be determined under this paragraph (c) beginning with the first "distribution calendar year" and up to and including the "distribution calendar year" that includes the Participant's date of death. (d) Required Minimum Distributions After Participant's Death. For purposes of this Section 6.6(d), the Participant's and Beneficiary's "life expectancy" determination will use the Single Life Table set forth in Treasury Regulation Section 1.401(a)(9)-9, Q&A -1. (i) Death On or After Date Distributions Begin. (A) Participant Survived by Designated Beneficiary. If the Participant dies on or after the date distributions begin and there is a "designated Beneficiary", the minimum amount that will be distributed for each "distribution calendar year" after the year of the Participant's death is the quotient obtained by dividing the "Participant's Account Balance" by the longer of the remaining "life expectancy" of the Participant or the remaining "life expectancy" of the Participant's "designated Beneficiary", determined as follows: (1) The Participant's remaining "life expectancy" is calculated using the age of the Participant in the year of death, reduced by one for each subsequent year. (2) If the Participant's surviving spouse is the Participant's sole "designated Beneficiary",the remaining "life expectancy" of the 18 Specimen 457(b) Plan Document Deferred Compensation Plan 50 surviving spouse is calculated for each "distribution calendar year" after the year of the Participant's death using the surviving spouse's age as of the spouse's birthday in that year. For "distribution calendar years" after the year of the surviving spouse's death, the remaining "life expectancy" of the surviving spouse is calculated using the age of the surviving spouse as of the spouse's birthday in the calendar year of the spouse's death, reduced by one for each subsequent calendar year. (3) If the Participant's surviving spouse is not the Participant's sole "designated Beneficiary" (i.e., multiple beneficiaries), the "designated Beneficiary's" remaining "life expectancy" is calculated using the age of the oldest Beneficiary in the year following the year of the Participant's death, reduced by one for each subsequent year. (4) If the Participant's sole "designated Beneficiary" is not the Participant's spouse, the "designated Beneficiary's" remaining "life expectancy" is calculated using the age of the Beneficiary in the year following the year of the Participant's death, reduced by one for each subsequent year. (B) No Designated Beneficiary. If the Participant dies on or after the date distributions begin and there is no "designated Beneficiary" as of September 30 of the year after the year of the Participant's death, the minimum amount that will be distributed for each "distribution calendar year" after the year of the Participant's death is the quotient obtained by dividing the "Participant's Account Balance" by the Participant's remaining "life expectancy" calculated using the age of the Participant in the year of death, reduced by one for each subsequent year. (ii) Death Before Date Distributions Begin. (A) Participant Survived by Designated Beneficiary. Except as provided in this Section, if the Participant dies before the date distributions begin and there is a "designated Beneficiary", the minimum amount that will be distributed for each "distribution calendar year" after the year of the Participant's death is the quotient obtained by dividing the "Participant's Account Balance" by the remaining "life expectancy" of the Participant's "designated Beneficiary", determined as follows: (1) If the Participant's surviving spouse is the Participant's sole "designated Beneficiary", the remaining "life expectancy" of the surviving spouse is calculated for each "distribution calendar year" 19 Specimen 457(b) Plan Document Deferred Compensation Plan 51 after the year of the Participant's death using the surviving spouse's age as of the spouse's birthday in that year. (2) If the Participant's surviving spouse is not the Participant's sole "designated Beneficiary" (i.e., multiple beneficiaries), the "designated Beneficiary's" remaining "life expectancy" is calculated using the age of the oldest Beneficiary in the year following the year of the Participant's death, reduced by one for each subsequent year. (3) If the Participant's sole "designated beneficiary" is not the Participant's spouse, the "designated Beneficiary's" remaining "life expectancy" is calculated using the age of the Beneficiary in the year following the year of the Participant's death, reduced by one for each subsequent year. (B) No Designated Beneficiary. If the Participant dies before the date distributions begin and there is no "designated Beneficiary" as of September 30 of the year following the year of the Participant's death, distribution of the Participant's entire interest will be distributed by December 31 of the calendar year containing the fifth anniversary of the Participant's death. (C) Death of Surviving Spouse Before Distributions to Surviving Spouse Are Required to Begin. If the Participant dies before the date distributions begin, the Participant's surviving spouse is the Participant's sole "designated Beneficiary", and the surviving spouse dies before distributions are required to begin to the surviving spouse under subsection (b)(ii)(A), this subparagraph (d)(ii) will apply as if the surviving spouse were the Participant. (e) Definitions. (i) A Participant's "required beginning date" is April 1 of the year that follows the later of (1) the calendar year the Participant attains age 70 '/z or (2) retires due to Severance from Employment. If the Participant postpones the required distribution due in calendar year he or she attains age 70 %z or severs employment, to the "required beginning date", the second required minimum distribution must be taken by the end of that year. (ii) Participant's "designated Beneficiary" means the individual who is designated as the Beneficiary under Section 8.1 and is the designated Beneficiary under Code Section 401(a)(9) and Treasury Regulation Section 1.401(a)(9)-4. 20 Specimen 457(b) Plan Document Deferred Compensation Plan 52 (iii) A "distribution calendar year" means a calendar year for which a minimum distribution is required. For distributions beginning before the Participant's death, the first "distribution calendar year" is the calendar year the Participant attains age 70 '/2 or retires, if later. For distributions beginning after the Participant's death, the first "distribution calendar year" is the calendar year in which distributions are required to begin under subparagraph (b)(ii). The required minimum distribution for the Participant's first "distribution calendar year" will be made on or before the Participant's "required beginning date". The required minimum distribution for other "distribution calendar years", including the required minimum distribution for the "distribution calendar year" in which the Participant's "required beginning date" occurs, will be made on or before December 31 of that "distribution calendar year". (iv) A married Participant's "life expectancy", whose spouse is the sole Beneficiary and is more than 10 years younger than the Participant, means the Participant's and spouse Beneficiary's life expectancy as computed by use of the Joint and Last Survivor Life Table under Treasury Regulation Section 1.401(a)(9)-9, Q&A 3. All other Participants will have his or her life expectancy computed by use of the Uniform Lifetime Table under Treasury Regulation Section 1.401(a)(9)-9, Q&A 2. A deceased Participant's or Beneficiary's "life expectancy" means his or her life expectancy as computed by use of the Single Life Table under Treasury Regulation Section 1.401(a)(9)-9, Q&A 1. (v) A "Participant's Account Balance" means the Account Balance as of the last Valuation Date in the calendar year immediately preceding the "distribution calendar year" (valuation calendar year) increased by the amount of any contributions made and allocated or forfeitures allocated to the Account Balance as of dates in the valuation calendar year after the Valuation Date and decreased by distributions made in the valuation calendar year after the Valuation Date. The Account Balance for the valuation calendar year includes any amounts rolled over or transferred to the Plan either in the valuation calendar year or in the "distribution calendar year" if distributed or transferred in the valuation calendar year. (f) Special Provision Applicable to 2009 Required Minimum Distributions. A Participant who would otherwise be required to receive a minimum distribution from the Plan in accordance with Code Section 401(a)(9) for the 2009 "distribution calendar year" will not receive any such distribution that is payable with respect to the 2009 "distribution calendar year" unless the Participant elects otherwise. A Participant who receives a minimum distribution from the Plan for the 2009 "distribution calendar year" is subject to the provisions of Section 6.9(b)(iii) and may not elect to directly rollover such distribution to an "eligible retirement plan". 21 Specimen 457(b) Plan Document Deferred Compensation Plan 53 The provisions of this Section 6.6(o are effective for minimum payments made for the 2009 "distribution calendar year" and do not include any minimum payment that is made in 2009, but is attributable to a different year (i.e., the Participant reached his required beginning date in 2008, but payment of the 2008 minimum is not made until 2009). 6.7 Payments to Minors and Incompetents If a Participant or Beneficiary entitled to receive any benefits hereunder is a minor or is adjudged to be legally incapable of giving valid receipt and discharge for such benefits, or is deemed so by the Administrator, benefits will be paid to such person as the Administrator or a court of competent jurisdiction may designate for the benefit of such Participant or Beneficiary. Such payments shall be considered a payment to such Participant or Beneficiary and shall, to the extent made, be deemed a complete discharge of any liability for such payments under the Plan. 6.8 Procedure When Distributee Cannot Be Located The Administrator shall make all reasonable attempts to determine the identity and address of a Participant or a Participant's Beneficiary entitled to benefits under the Plan. For this purpose, a reasonable attempt means (a) the mailing by certified mail of a notice to the last known address shown in the Administrator's records; (b) use of a commercial locator service, the internet or other general search method; (c) use such other methods as the Administrator believes prudent. If the Participant or Beneficiary has not responded within 6 months, the Plan shall continue to hold the benefits due such person until, in the Administrator's discretion, the Plan is required to take other action under applicable law. Notwithstanding the foregoing, if the Administrator is unable to locate a person entitled to benefits hereunder after applying the search methods set forth above, then the Administrator, in its sole discretion, may pay an amount that is immediately distributable to such person in a direct rollover to an individual retirement plan designated by the Administrator. 6.9 Direct Rollover (a) A Participant or spouse Beneficiary (or a Participant's spouse or former spouse who is the alternate payee under a domestic relations order, as defined in Code Section 414(p)) who is entitled to an "eligible rollover distribution" may elect, at the time and in the manner prescribed by the Administrator, to have all or any portion of the distribution paid directly to an "eligible retirement plan" specified by the Participant or spouse Beneficiary in a direct rollover. (b) For purposes of this Section 6.9, an "eligible rollover distribution" means any distribution of all or any portion of a Participant's Account Balance, except that an eligible rollover distribution does not include (i) any distribution that is one of a series of substantially equal periodic payment made not less frequently than annually for the life or life expectancy of the Participant or the joint lives or life expectancies of the Participant and the Participant's designated Beneficiary, or for a specified period of ten years or more (ii) 22 Specimen 457(b) Plan Document Deferred Compensation Plan FA any distribution made as a result of an unforeseeable emergency, or (iii) any distribution that is a required minimum distribution under Code Section 401(a)(9). In addition, an "eligible retirement plan" with respect to the Participant, the Participant's spouse, or the Participant's spouse or former spouse who is an alternate payee under a domestic relations order as defined in Code Section 414(p) means any of the following: (i) an individual retirement account described in Code Section 408(a), (ii) an individual retirement annuity described in Code Section 408(b), (iii) an annuity plan described in Code Section 403(a), (iv) a qualified defined contribution plan described in Code Section 401(a), (v) an annuity contract described in Code Section 403(b), (vi) an eligible deferred compensation plan described in Code Section 457(b) that is maintained by a State, political subdivision of a State, or any agency or instrumentality of a State or political subdivision of a State, or (vii) effective for distributions made on or after January 1, 2008, a Roth IRA, as described in Code Section 408A, provided, that for distributions made before January 1, 2010, such rollover shall be subject to the limitations contained in Code Section 408A(c)(3)(B). Notwithstanding any other provision of this Section 6.9(b), a plan or contract described in clause (iii), (iv), (v), or (vi) above shall not constitute an "eligible retirement plan" with respect to a distribution of Roth Contributions unless such plan or contract separately accounts for such distribution, including separately accounting for the portion of such distribution which is includible in gross income and the portion of such distribution which is not so includible. (c) A Beneficiary who is not the spouse of the deceased Participant may elect a direct rollover of a distribution to an individual retirement account described in Code Section 408(b) or to a Roth individual retirement account described in Code Section 408A(b) ("IRA"), provided that the distributed amount satisfies all the requirements to be an eligible rollover distribution. The direct rollover must be made to an IRA established on behalf of the designated nonspouse Beneficiary that will be treated as an inherited IRA pursuant to the provisions of Code Section 402(c)(11). The IRA must be established in a manner that identifies it as an IRA with respect to a deceased Participant and also identifies the deceased Participant and the nonspouse Beneficiary. This Section applies to distributions made after the last day of the 2009 Plan Year. 6.10 Inservice Distributions (a) Unforeseeable Emergency Distributions. If the Participant who has not incurred a Severance from Employment or Beneficiary has an unforeseeable emergency, the Administrator may approve a single sum distribution of the amount requested or, if less, the maximum amount determined by the Administrator to be permitted to be distributed under this Section 6.10(a), Treasury Regulation Section 1.457-6(c) or other regulatory guidance. The Administrator shall determine whether an unforeseeable emergency exists based on relevant facts and circumstances, and Treasury Regulation Section 1.457-6(c) or other regulatory guidance. 23 Specimen 457(b) Plan Document Deferred Compensation Plan 55 (i) An unforeseeable emergency is defined as a severe financial hardship resulting from the following: (A) an illness or accident of the Participant or Beneficiary, the Participant's or Beneficiary's spouse, or the Participant's or Beneficiary's dependent or the Participant's "primary Beneficiary"; (B) loss of the Participant's or Beneficiary's property due to casualty (including the need to rebuild a home following damage to a home not otherwise covered by homeowner's insurance, e.g., as a result of a natural disaster); (C) the need to pay for the funeral expenses of a Participant's or Beneficiary's spouse, Participant's or Beneficiary's dependent or "primary Beneficiary" of the Participant; (D) the need to pay for medical expenses of the Participant or Beneficiary, the Participant's or Beneficiary's spouse, Participant's or Beneficiary's dependent or the Participant's "primary Beneficiary" which are not reimbursed or compensated by insurance or otherwise, including non- refundable deductibles, as well as for the cost of prescription drug medication; (E) the imminent foreclosure of or eviction from the Participant's or Beneficiary's primary residence; or (F) other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant or Beneficiary. However, except as otherwise specifically provided in this Section 6.10(a), certain circumstances are not considered an unforeseen emergency such as the purchase of a home or the payment of college tuition or credit card debt. For purposes of this paragraph, if the Participant is not deceased, a "primary Beneficiary" shall be limited to a primary Beneficiary under the Plan, which is an individual who is named as a Beneficiary pursuant to Section 8.1 and has an unconditional right to all or a portion of the Participant's Account Balance upon the death of the Participant, and which shall not include a contingent Beneficiary. Additionally, dependent shall be limited to the definition under Code Section 152(a), and, for taxable years beginning on or after January 1, 2005, without regard to Code Sections 152(b)(1), (b)(2) and (d)(1)(B). Unforeseeable emergency distribution standard. A distribution on account of unforeseeable emergency may not be made to the extent that such emergency is or may be relieved through reimbursement or compensation from insurance or otherwise; by liquidation of the Participant's assets, to the extent the liquidation of such assets would not itself cause severe financial hardship; or by cessation of 24 Specimen 457(b) Plan Document Deferred Compensation Plan 56 deferrals under the Plan if the cessation of deferrals would alleviate the financial need. (iii) Distribution necessary to satisfy emergency need. Distributions because of an unforeseeable emergency may not exceed the amount reasonably necessary to satisfy the emergency need (which may include any amounts necessary to pay any federal, State, or local income taxes or penalties reasonably anticipated to result from the distribution). (b) De minimis Account Balance Distributions. A Participant may request a distribution of his or her total Account Balance before Severance of Employment if all of the following requirements are satisfied: (i) the Participants total Account Balance (including the rollover contribution separate account) does not exceed $5,000 (or the dollar limit under Code Section 411(a)(11), if greater); (ii) the Participant has not previously received a distribution of his or her total Account Balance in accordance with the provisions of this Section 6.10(b); and (iii) no Annual Deferral has been made with respect to the Participant during the two- year period ending immediately before the date of the distribution. Distribution shall be made as soon as practical following the request in a lump sum payment or through a direct rollover to the "eligible retirement plan" (as defined under Section 6.9(b)) selected by the Participant or Beneficiary. (c) Rollover Account Distributions. If a Participant has a separate account attributable to rollover contributions under the Plan, the Participant before Severance of Employment may at any time elect to receive an inservice distribution of all or any portion of the amount held in the rollover separate account. Any designated Roth contributions rolled over to the Plan are treated as Roth Contributions and not rollover contributions for Plan purposes. (d) Age 70'/z Distributions. Prior to Severance from Employment, a Participant may withdraw all or a portion of his or her Account Balance on or after the first day of the calendar year in which the Participant shall attain age 70%2. (e) Qualified Military Service Deemed Severance Distributions. Notwithstanding any other provision of the Plan to the contrary, a Participant before Severance of Employment who is absent from employment because of service with the uniformed services (as described in United Stated Code, Title 38, Chapter 43) for more than 30 days shall be treated as if he or she had incurred a Severance from Employment for purposes of receiving a distribution. A Participant who is deemed to have incurred a Severance from Employment hereunder may elect to receive a withdrawal from his or her Annual Deferrals. 25 Specimen 457(b) Plan Document Deferred Compensation Plan 57 If a Participant receives a distribution in accordance with this Section 6.10(e) and would not otherwise be entitled to receive a distribution under the Plan other than pursuant to this section, his or her Annual Deferrals shall be suspended for at least 6 months after receipt of the withdrawal. (f) Inservice Distribution of Roth Contributions. Roth Contributions are eligible for all inservice distributions and withdrawals. 6.11 Qualified Distributions for Retired Public Safety Officers A Participant who is an "eligible retired public safety officer" may elect to have qualified health insurance premiums deducted from amounts to be distributed to the Participant from the Plan, and to have such amounts paid directly to the insurer or group health plan, subject to the provisions of this Section 6.11. "Qualified health insurance premiums" include premiums for accident and health insurance (including under a self-insured plan) or qualified long-term care insurance contracts for the Participant and the Participant's spouse and dependents. It is intended that, pursuant to Code Section 402(1), the distribution shall be excluded from the Participant's gross income to the extent that the aggregate amount of the distributions does not exceed the amount used to pay the qualified health insurance premiums of the Participant and the Participant's spouse and dependents. (a) A Participant shall qualify as an "eligible retired public safety officer" for purposes of this Section 6.11 only if the Participant is an individual who separated from service, either by reason of disability (as determined by the Administrator) or after attainment of Normal Retirement Age, as a public safety officer with the Employer. Consequently, a public safety officer who retires before the attainment of Normal Retirement Age is not an eligible retired public safety officer unless the public safety officer retires by reason of disability (as determined by the Administrator). (b) For purposes of this Section 6.11, the term "public safety officer" means an individual serving the Employer in an official capacity, with or without compensation, as a law enforcement officer, a firefighter, a chaplain, or as a member of a rescue squad or ambulance crew. (c) In order to avoid unintended taxation, the aggregate amount that a Participant elects to have directly distributed to an insurer or group health plan pursuant to this Section 6.11 for any calendar year shall be limited to $3,000. Moreover, for purposes of applying this $3,000 limitation, distributions with respect to the Participant that are used to pay for qualified health insurance premiums from all qualified retirement plans of the Employer shall be aggregated. 26 Specimen 457(b) Plan Document Deferred Compensation Plan 58 SECTION VII ROLLOVERS AND PLAN TRANSFERS 7.1 Eligible Rollover Contributions to the Plan (a) A Participant who is an Employee or a Participant who has separated from service and has an Account Balance and who is entitled to receive an eligible rollover distribution from another "eligible retirement plan", as defined in 6.9(b) excluding the direct rollover of after-tax contributions, may request to have all or a portion of the eligible rollover distribution paid to the Plan. The Administrator may require such documentation from the distributing plan as it deems necessary to effectuate the rollover in accordance with Code Section 402 and to confirm that such plan is an "eligible retirement plan" within the meaning of Code Section 402(c)(8)(B). (b) If an Employee makes a rollover contribution to the Plan of amounts that have previously been distributed to him or her, the Employee must deliver to the Administrator the cash that constitutes his or her rollover contribution within 60 days of receipt of the distribution from the distributing "eligible retirement plan". Such delivery must be made in the manner prescribed by the Administrator. (c) The Plan shall establish and maintain for the Participant a separate account for any eligible rollover distribution paid to the Plan from any "eligible retirement plan" that is an eligible governmental plan under Code Section 457(b). In addition, the Plan shall establish and maintain for the Participant a separate account for any eligible rollover distribution paid to the Plan from any "eligible retirement plan" that is not an eligible governmental plan under Code Section 457(b). (d) To the extent that the Plan accepts rollover contributions attributable to Roth Contributions, the Administrator shall account for such contributions separately from other rollover contributions. In administering rollover contributions attributable to Roth Contributions, the Administrator shall be entitled to rely on a statement from the distributing plan's administrator identifying (i) the Participant's basis in the rolled over amounts and (ii) the date on which the Participant's 5 -taxable -year period of participation (as required under Code Section 402A(d)(2) for a qualified distribution of Roth Contributions) started under the distributing plan. If the 5 -taxable -year period of participation under the distributing plan would end sooner than the Participant's 5 - taxable -year period of participation under the Plan, the 5 -taxable -year period of participation applicable under the distributing plan shall continue to apply with respect to the Roth Contributions included in the rollover contribution. Roth Contributions that are rolled over to the Plan shall be subject to the provisions of the Plan applicable to Roth Contributions rather than the provisions of the Plan applicable to rollover contributions. 7.2 Plan -to -Plan Transfers to the Plan At the direction of the Employer, the Administrator may permit Participants or Beneficiaries who are participants or Beneficiaries in another eligible governmental plan under Code Section 27 Specimen 457(b) Plan Document Deferred Compensation Plan 59 457(b) to transfer assets to the Plan as provided in this Section 7.2. Such a transfer is permitted only if the other plan provides for the direct transfer of each Participant's or Beneficiary's interest therein to the Plan. The Administrator may require in its sole discretion that the transfer be in cash or other property acceptable to the Administrator. The Administrator may require such documentation from the other plan as it deems necessary to effectuate the transfer in accordance with Code Section 457(e)(10) and Treasury Regulation Section 1.457-10(b) and to confirm that the other plan is an eligible governmental plan as defined in Treasury Regulation Section 1.457- 2(f). The amount so transferred shall be credited to the Participant's Account Balance and shall be held, accounted for, administered and otherwise treated in the same manner as an Annual Deferral by the Participant under the Plan, except that the transferred amount shall not be considered an Annual Deferral under the Plan in determining the maximum deferral under Section III. 7.3 Plan -to -Plan Transfers from the Plan (a) At the direction of the Employer, the Administrator may permit Participants or Beneficiaries to elect to have his or her Account Balance transferred to another eligible governmental plan within the meaning of Treasury Regulation Section 1.457-2(f), if the other eligible governmental plan provides for the receipt of transfers, the Participant or Beneficiary whose amounts deferred are being transferred will have an amount deferred immediately after the transfer at least equal to the amount deferred with respect to that Participant or Beneficiary immediately before the transfer, and the conditions of subparagraph (i), (ii), or (iii) are met. (i) A transfer from the Plan to another eligible governmental plan is permitted in the case of a transfer for a Participant if the Participant has had a Severance from Employment with the Employer and is performing services for the entity maintaining the other eligible governmental plan. (ii) A transfer from the Plan to another eligible governmental plan is permitted if: (A) The transfer is to another eligible governmental plan within the same State as the Plan; (B) All the assets held by the Plan are transferred; and (C) A Participant or Beneficiary whose amounts deferred are being transferred is not eligible for additional annual deferrals in the other eligible governmental plan unless he or she is performing services for the entity maintaining the other eligible governmental plan. (iii) A transfer from the Plan to another eligible governmental plan of the Employer is permitted if: (A) The transfer is to another eligible governmental plan of the Employer (and, for this purpose, an employer is not treated as the Employer if the Participant's compensation is paid by a different entity); and 28 Specimen 457(b) Plan Document Deferred Compensation Plan 60 (B) A Participant or Beneficiary whose deferred amounts are being transferred is not eligible for additional annual deferrals in the other eligible governmental plan unless he or she is performing services for the entity maintaining the other eligible governmental plan. (b) Upon the transfer of assets under this Section 7.3(b), the Plan's liability to pay benefits to the Participant or Beneficiary under this Plan shall be discharged to the extent of the amount so transferred for the Participant or Beneficiary. The Administrator may require such documentation from the receiving plan as it deems appropriate or necessary to comply with this Section 7.3(b) (for example, to confirm that the receiving plan is an eligible governmental plan under paragraph (a) of this Section 7.3(b), and to assure that the transfer is permitted under the receiving plan) or to effectuate the transfer pursuant to Treasury Regulation Section 1.457-10(b). 7.4 Permissive Service Credit Transfers (a) If a Participant is also a participant in a tax -qualified defined benefit governmental plan (as defined in Code Section 414(d)) that provides for the acceptance of plan -to -plan transfers with respect to the Participant, then the Participant may elect to have any portion of the Participant's Account Balance transferred to the defined benefit governmental plan. A transfer under this Section 7.4(a) may be made before the Participant has had a Severance from Employment and without regard to whether the defined benefit governmental plan is maintained by the Employer. The distribution rules applicable to the defined benefit governmental plan to which any amounts are transferred under this Section 7.4(a) shall apply to the transferred amounts and any benefits attributable to the transferred amounts. (b) A transfer may be made under Section 7.4(a) only if the transfer is either for the purchase of permissive service credit (as defined in Code Section 415(n)(3)(A)) under the receiving defined benefit governmental plan, including service credit for periods for which there is no performance of services, service credited in order to provide an increased benefit for service credit which a participant is receiving under the plan, and service (including parental, medical, sabbatical, and similar leave) as an employee (other than as an employee described in Code Section 415(n)(3)(C)(i)) of an educational organization described in Code Section 170(b)(1)(A)(ii) which is a public, private, or sectarian school which provides elementary or secondary education (through grade 12) or a comparable level of education, as determined under the applicable law of the jurisdiction in which the service was performed, without application of the limitations of Code Section 415(n)(3)(B) in determining whether the transfer is for the purchase of permissive service credit, or a repayment to which Code Section 415 does not apply by reason of Code Section 415(k)(3). 29 Specimen 457(b) Plan Document Deferred Compensation Plan 61 SECTION VIII BENEFICIARY 8.1 Beneficiary Designation A Participant has the right, by written notice filed with the Administrator, to designate one or more Beneficiaries to receive any benefits payable under the Plan in the event of the Participant's death prior to the complete distribution of benefits. The Participant accepts and acknowledges that he or she has the burden for executing and filing, with the Administrator, a proper Beneficiary designation form. The form for this purpose shall be provided by the Administrator. The form is not valid until it is signed, filed with the Administrator by the Participant, and accepted by the Administrator. Upon the Participant filing the form and acceptance by the Administrator, the form revokes all Beneficiary designations filed prior to that date by the Participant. If a married Participant designates his or her spouse a Beneficiary under the Plan, such designation shall automatically become null and void as of the date of any final divorce or similar decree or order; except that the Participant may re -designate such former spouse or his or her Beneficiary after the date of the final decree or order. If no such designation is in effect upon the Participant's death, or if no designated Beneficiary survives the Participant, the Beneficiary shall be the Participant's surviving spouse, or if the Participant has no surviving spouse, the Participant's surviving children in equal shares, or if there are no surviving children, the Participant's estate. If a Beneficiary dies after becoming entitled to receive a distribution under the Plan but before distribution is made to him or her in full, the estate of the deceased Beneficiary shall be the Beneficiary as to the balance of the distribution. 30 Specimen 457(b) Plan Document Deferred Compensation Plan 62 SECTION IX ADMINISTRATION AND ACCOUNTING 9.1 Administrator The Administrator shall have the responsibility and authority to control the operation and administration of the Plan in accordance with the terms of the Plan, the Code and regulations thereunder, and any State law as applicable. The Administrator may contract with a financially responsible independent contractor to administer and coordinate the Plan under the direction of the Administrator. The Administrator shall have the right to designate a plan coordinator or other party of its choice to perform such services under this agreement as may be mutually agreed to between the Administrator and the plan coordinator or other party. The Administrator has full and complete discretionary authority to determine all questions of Plan interpretation, policy, participation, or benefit eligibility in a manner consistent with the Plan's documents; such determinations shall be conclusive and binding on all persons except as otherwise provided by law. 9.2 Administrative Costs All reasonable expenses of administration may be paid out of the Plan assets unless paid (or reimbursed) by the Employer. Such expenses shall include any expenses incident to the functioning of the Administrator, or any person or persons retained or appointed by the Administrator or the Employer incident to the exercise of his or her duties under the Plan, including, but not limited to, fees of accountants, counsel, investment managers, agents (including nonfiduciary agents) appointed for the purpose of assisting the Administrator in carrying out the instructions of Participants as to the directed investment of his or her accounts and other specialists and his or her agents, and other costs of administering the Plan. In addition, unless specifically prohibited under statute, regulation or other guidance of general applicability, the Administrator may charge to the Account Balance of an individual a reasonable charge to offset the cost of making a distribution to the Participant, Beneficiary, or alternate payee or to the Participant for Plan loans. If liquid assets of the Plan are insufficient to cover the fees of the Administrator, then Plan assets shall be liquidated to the extent necessary for such fees. In the event any part of the Plan assets becomes subject to tax, all taxes incurred will be paid from the Plan assets. Until paid, the expenses shall constitute a liability of the Trust Fund described in Section 11.1. 9.3 Paperless Administration The Administrator may use telephonic or electronic media to satisfy any notice requirements required by this Plan, to the extent permissible under regulations (or other generally applicable guidance). In addition, a Participant's consent to immediate distribution may be provided through telephonic or electronic means, to the extent permissible under regulations (or other generally applicable guidance). The Administrator also may use telephonic or electronic media to conduct 31 Specimen 457(b) Plan Document Deferred Compensation Plan 63 plan transactions such as enrolling Participants, making (and changing) salary reduction elections, electing (and changing) investment allocations, applying for Participant Plan loans, and other transactions, to the extent permissible under regulations (or other generally applicable guidance). 32 Specimen 457(b) Plan Document Deferred Compensation Plan 64 SECTION X AMENDMENTS 10.1 Amendment The Employer may at any time either prospectively or retroactively amend the Plan. The Employer shall not have the right to reduce or affect the value of any Participant's Account Balance or any rights accrued under the Plan prior to amendment. 10.2 Conformation The Employer shall amend and interpret the Plan to the extent necessary to conform to the requirements of Code Section 457 and any other applicable law, regulation or ruling, including amendments that are retroactive. In the event the Plan is deemed by the Internal Revenue Service to be administered in a manner inconsistent with Code Section 457, the Employer shall correct such inconsistency within the period provided in Code Section 457(b). 10.3 Plan Termination In the event of the termination of the Plan, all Account Balances shall be disposed to or for the benefit of each Participant or Beneficiary in accordance with the provisions of Section VI or Section VII as soon as reasonably practicable following the Plan's termination. The Employer shall not have the right to reduce or affect the value of any Participant's account or any rights accrued under the Plan prior to termination of the Plan. The Participant's or Beneficiary's written consent to the commencement of distribution shall not be required regardless of the value of his or her Account Balance. The distribution in the event of termination of the Plan may, at the discretion of the Employer, be made in the form of a lump sum payment of the Participant's total Account Balance, without regard to the form of distribution elected by the Participant. 33 Specimen 457(b) Plan Document Deferred Compensation Plan 65 SECTION XI TRUST FUND 11.1 Trust Fund All amounts in a Participant's or Beneficiary's Account Balance, all property and rights purchased with such amounts, and all income attributable to such amounts, property, or rights shall be held and invested in the Trust Fund in accordance with this Plan. The Trust Fund, and any subtrust established under the Plan, shall be established pursuant to a written agreement that constitutes a valid trust, custodial agreement, annuity contract, or similar agreement under the laws of the State of residence of the Employer, to the extent not superseded by federal law. All investments, amounts, property, and rights held under the Trust Fund shall be held in trust for the exclusive benefit of Participants and their Beneficiaries and defraying reasonable expenses of the Plan and of the Trust Fund. Prior to the satisfaction of all liabilities with respect to Participants and their Beneficiaries, no part of the assets and income of the Trust Fund may be used for, or diverted to, for purposes other than for the exclusive benefit of Participants and their Beneficiaries. The Employer has no beneficial interest in the Trust Fund and no part of the Trust Fund shall ever revert to the Employer, directly or indirectly, provided, however, that a contribution or any portion thereof made by the Employer through a mistake of fact under Section 12.4 shall upon written request of the Employer, reduced by losses attributable thereto, shall be returned to the Employer. 34 Specimen 457(b) Plan Document Deferred Compensation Plan 66 SECTION XII MISCELLANEOUS 12.1 Non -Assignability Except as provided in Sections 12.2 and 12.3, no benefit under the Plan at any time shall be subject in any manner to anticipation, alienation, assignment (either at law or in equity), encumbrance, garnishment, levy, execution, or other legal or equitable process; and no person shall have power in any manner to anticipate, transfer, assign (either law or in equity), alienate or subject to attachment, garnishment, levy, execution, or other legal or equitable process, or in any way encumber his or her benefits under the Plan, or any part thereof, and any attempt to do so shall be void except to such extent as may be required by law. 12.2 Domestic Relation Orders The Employer shall establish reasonable procedures to determine the status of domestic relations orders and to administer distributions under domestic relations orders which are deemed to be qualified orders. Such procedures shall be in writing and shall comply with the provisions of Code Section 414(p) and regulations issued thereunder. Notwithstanding Section 12. 1, the Administrator may affect a Participant's Account Balance for a "qualified domestic relations order" as defined in Code Section 414(p), and those other domestic relations orders permitted to be so treated by the Administrator under the provisions of the Retirement Equity Act of 1984. The amount of the Participant's Account Balance shall be paid in the manner and to the person or persons so directed in the qualified domestic relations order. Such payment shall be made without regard to whether the Participant is eligible for a distribution of benefits under the Plan. 12.3 IRS Levy Notwithstanding Section 12. 1, the Administrator may pay from a Participant's or Beneficiary's Account Balance the amount that the Administrator finds is lawfully demanded under a levy issued by the Internal Revenue Service to the Plan with respect to that Participant or Beneficiary or is sought to be collected by the United States Government under a judgment resulting from an unpaid tax assessment against the Participant or Beneficiary. 12.4 Mistaken Contributions Notwithstanding any other provision of the Plan or the Trust Fund to the contrary, in the event any contribution of an Employer is made under a mistake of fact (and not a Plan operational error), such contribution may be returned to the Employer within one year after the payment of the contribution. Earnings attributable to the excess contribution may not be returned to the Employer (and instead shall be applied otherwise as determined by the Administrator), but losses attributable thereto must reduce the amount to be so returned. 35 Specimen 457(b) Plan Document Deferred Compensation Plan 67 12.5 Employment Neither the establishment of the Plan nor any modification thereof, nor the establishment of any account, nor the payment of any benefits, shall be construed as giving to any Participant or other person any legal or equitable right against the Employer except as herein provided; and, in no event, shall the terms or employment of any Employee be modified or in any way affected hereby. 12.6 Successors and Assigns The Plan shall be binding upon and shall inure to the benefit of the Employer, its successors and assigns, all Participants and Beneficiaries and their heirs and legal representatives. 12.7 Written Notice Any notice or other communication required or permitted under the Plan shall be in writing, and if directed to the Administrator shall be sent to the designated office of the Administrator, and, if directed to a Participant or to a Beneficiary, shall be sent to such Participant or Beneficiary at his or her last known address as it appears on the Administrator's record. To the extent permitted by law, regulation or other guidance from an appropriate regulatory agency, the Administrator, Employer or any other party may provide any notice or disclosure, obtain any authorization or consent, or satisfy any other obligation under the Plan through the use of any other medium acceptable to the Administrator. Such other medium may include, but is not necessarily limited to, electronic or telephonic medium. In addition, any communication or disclosure to or from Participants or Beneficiaries that is required under the terms of the Plan to be made in writing may be provided in any other medium (electronic, telephonic, or otherwise) that is acceptable to the Administrator and permitted under applicable law. The Administrator shall be entitled to reliance on any such communication from a Participant or Beneficiary, including any data or consent included in such communication, provided in any such manner. 12.8 Total Agreement This Plan and Participant deferral election, and any subsequently adopted Plan amendment thereof, shall constitute the total agreement or contract between the Employer and the Participant regarding the Plan. No oral statement regarding the Plan may be relied upon by the Participant. 12.9 Gender As used herein the masculine shall include the neuter and the feminine where appropriate. 12.10 Controlling Law This Plan is created and shall be construed, administered and interpreted in accordance with Code Section 457 and the regulations thereunder, and under laws of the State of residence of the Employer, to the extent not superseded by federal law as the same shall be at the time any dispute or issue is raised. If any portion of this Plan is held illegal, invalid or unenforceable, the legality, validity and enforceability of the remainder shall be unaffected. 36 Specimen 457(b) Plan Document Deferred Compensation Plan 68 The_,mplo er ha executed this Plan document this 4 day of affAW Indian River County BOCC A Employer Address: 1800 217th St Vero Beach, FL 32960 Employer EIN: 59-6000674 Contract Number: INDR-001 This plan document is a specimen plan document only. Unlike 401(a)/(k) and 403(b) plans, the Internal Revenue Service does not offer a preapproved program for 457(b) plan documents and does not generally provide any determination or advisory letter regarding a 457(b) plan's compliance in form with applicable rules. As such, this plan document has not been reviewed by the Internal Revenue Service for compliance with applicable sections of the Internal Revenue Code of 1986, as amended. Lincoln Retirement Services Company LLC and its affiliates (Lincoln) make no guarantees or warranties, expressed or implied, regarding the tax effects of the specimen plan document. Employers are strongly encouraged to consult with their legal and/or tax advisor regarding the adoption of this plan document. 37 Specimen 457(b) Plan Document Deferred Compensation Plan SUPERSEDING PROVISIONS ADDENDUM The following provisions supersede other provisions in this Plan in the manner described below: Section 1.1: The term Employee shall be further clarified as follows: The term Employee shall include Employees who are included in a unit of Employees covered by a collective bargaining agreement. Section 2.2(c): The special election of bonuses is further clarified as follows: The Employer will provide the Participant with a form to specify the dollar amount for a deferral election from bonus compensation. On a nondiscriminatory basis, the Administrator may establish a maximum deferral dollar amount for each special deferral election of a bonus to allow for any applicable taxes. Section 2.7: Employer Contributions shall not apply. Employer Contributions to the Plan are not permitted. 38 Specimen 457(b) Plan Document Deferred Compensation Plan 70 Governmental 457(b) Trust Agreement between INDIAN RIVER COUNTY BOCC and Lincoln Financial Group Trust Company, as Trustee 71 Index ArticleI Definitions......................................................................................................1 Section1.1 Definitions...............................................................................1 Article II Creation; Purpose; Etc..................................................................................2 Section2.1 Creation..................................................................................2 Section2.2 Purpose..................................................................................2 Section 2.3 Exclusive Benefit....................................................................2 Section 2.4 Domestic Trust........................................................................2 Section 2.5 Prohibited Transactions..........................................................2 Section 2.6 Directed Trustee......................................................................2 Section 2.7 Employer Representation........................................................2 Article III Administration of Plan..................................................................................3 Section 3.1 Payment of Benefits...............................................................3 Section 3.2 Reliance on Administrator......................................................3 Section 3.3 Trustee Not Responsible for Plan Administration ..................3 Section 3.4 Trustee Not Responsible for Enforcing Contributions or for Sufficiency of Account ............................3 Section 3.5 Plan -to -Plan Transfers/Rollovers............................................3 Article IV Investment of Trust.......................................................................................3 Section 4.1 Employer Authority..................................................................3 Section 4.2 Investment Managers......................................................... 3-4 Section 4.3 Individually Directed Accounts...............................................4 Section 4.4 Reliance on Employer, Investment Article VII Trustee's Rights/Limitations of Trustee's Responsibility ........................7 Managers, Participants...........................................................4 Section 4.5 Late Day Trading.....................................................................4 Section 4.6 Self -Directed Brokerage Accounts..........................................4 Section 4.7 Plan Expense Account............................................................4 Article V Powers of Trustee..................................................................................... 5-6 Section 5.1 General Powers......................................................................6 Section 5.2 Uninvested Cash and Float....................................................6 Section 5.3 Valuations...............................................................................6 Article VI Records and Accounts of Trustee..............................................................7 Section6.1 Records..................................................................................7 Section 6.2 Annual and Other Periodic Accounts.....................................7 Section 6.3 Tax Returns and Tax Withholding and Reporting ..................7 Article VII Trustee's Rights/Limitations of Trustee's Responsibility ........................7 Section 7.1 No Implied Duties...................................................................7 Section 7.2 Evidence of Authority..............................................................7 Section 7.3 Reliance by Trustee................................................................8 Section 7.4 Trustee May Employ Agents..................................................8 Section 7.5 No Obligation to Act on Unsatisfactory Notice .......................8 Article VIII Compensation, Taxes, Expenses, Indemnity ..............................................8 Section 8.1 Payment of Compensation and Expenses .............................8 Section8.2 Taxes......................................................................................8 Section 8.3 Indemnification by Employer ............................................... 8-3 Section 8.4 Indemnification by Trustee.....................................................9 72 Article IX Resignation or Removal of Trustee............................................................9 Section 9.1 Removal or Resignation of Trustee........................................9 Section 9.2 Reserve for Expenses...................................................... 9-10 Article X Amendment or Termination of Agreement...............................................10 Governing Law.....................................................................10 Section 10.1 Amendment of Agreement....................................................10 Entire Agreement..................................................................10 Section 10.2 Termination of Agreement....................................................10 Notices............................................................................ 10-11 Article XI Termination of Plan....................................................................................10 Section 12.4 Section 11.1 Amendment or Termination of Plan......................................10 Section 12.5 Section 11.2 Cessation of 457(b) Status...................................................10 Section12.6 Section 11.3 Application of Funds on Termination....................................10 Section 12.7 Article XII General Provisions.....................................................................................10 Section 12.1 Governing Law.....................................................................10 Section 12.2 Entire Agreement..................................................................10 Section 12.3 Notices............................................................................ 10-11 Section 12.4 Plan Documents...................................................................11 Section 12.5 Spendthrift Provision............................................................11 Section12.6 Effect.....................................................................................11 Section 12.7 Severability...........................................................................11 Section 12.8 Headings and Titles..............................................................11 Section 12.9 Binding Agreement...............................................................11 Section 12.10 Merger or Consolidation........................................................11 Section 12.11 Force Majeure.......................................................................12 Section 12.12 Shareholder Communications Act.........................................12 Signatures...............................................................................................13 SDBAAddendum................................................................................... 14-15 73 Governmental 457(b) Trust Agreement This TRUST AGREEMENT (the "Agreement") is made as of this 29th day of September, 2022, by and between INDIAN RIVER COUNTY BOCC (the "Employer"), and LINCOLN FINANCIAL GROUP TRUST COMPANY, a non -depository trust company organized under the laws of the State of New Hampshire (the "Trustee") (each a "Party" or collectively the "Parties"). Witnesseth WHEREAS, Employer sponsors a plan under Section 457(b) of the Code, known as the Indian River County BOCC Deferred Compensation Plan for Public Employees 457 Governmental Plan and Trust ("Plan"), and WHEREAS, Employer is either a State, a political subdivision of a State, or an agency or instrumentality of a State or political subdivision of a State so that Employer is eligible to sponsor an eligible deferred compensation plan pursuant to Code Section 457(b), and WHEREAS, Employer wishes to establish a trust for the Plan pursuant to the requirements of Code Section 457(g), and WHEREAS, Employer wishes to appoint Trustee as trustee of the Trust established under the Plan and Trustee hereby accepts such appointment. NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the Employer and Trustee hereby mutually agree as follows: Article I — Definitions Section 1.1 Definitions Unless the context otherwise requires or unless otherwise expressly provided, as used in this Agreement: (a) "Administrator" means, with respect to the Plan, the organization, entity, committee or other person responsible for benefit administration under the Plan, including any representative or delegate thereof designated in writing, authorized to act on behalf of such organization, entity, committee or other person, and may include the Employer. (b) "Code" means the Internal Revenue Code of 1986, as amended from time to time, and regulations issued thereunder. (c) "Investment Manager" means a bank, insurance company or registered investment adviser satisfying the requirements of Section 3(38) of ERISA appointed by the Employer to manage all or any portion of the Trust as designated by the Employer. (d) "ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time. (e) "Trust" means all property, real, personal or mixed, of any kind or nature, contributed, paid or delivered to the Trustee hereunder, and all investments, reinvestments and proceeds thereof, and all gains, earnings and profits thereon. Indian River County BOCC; 457(b) INDR-001 RPS00804-AL 74 Article II - Creation; Purpose; Etc. Section 2.1 Creation The Employer hereby creates the Trust. Under the terms of the Plan, the Employer has the power to appoint and hereby appoints Lincoln Financial Group Trust Company to act as Trustee; and Lincoln Financial Group Trust Company hereby accepts the appointment to serve as Trustee. Section 2.2 Purpose The Trust is established to fund the benefits payable to participants and their beneficiaries under the Plan. Section 2.3 Exclusive Benefit Except as otherwise permitted by law, at no time prior to the satisfaction of all liabilities with respect to participants and their beneficiaries under the Plan shall any part of the Trust be used for, or diverted to, any purposes other than for the exclusive benefit of the participants and their beneficiaries and for defraying the reasonable expenses of administering such Plan. Section 2.4 Domestic Trust The Trust shall at all times be maintained as a domestic trust in the United States. Section 2.5 Prohibited Transactions Neither Trustee, Employer, Investment Manager nor any participant shall knowingly enter into any transaction, engage in any activity, or direct the purchase or acquisition of any investment with respect to the Plan which would constitute a prohibited transaction under the Code for which a statutory or administrative exemption is not available. Section 2.6 Directed Trustee Trustee shall have no discretion or authority with respect to the investments of the Trust but shall act solely as a directed Trustee of the funds contributed hereunder. Trustee shall not have any responsibilities for money or property not deposited into the Trust, except Trustee will take instruction from Employer regarding any group annuity issued by an affiliate of Trustee that Employer or Plan Sponsor owns. Trustee shall have no responsibility for money or properties held in any other trust Employer has established or will establish with respect to the Plan (unless specifically agreed to in writing by Trustee), or held by or deposited with any other trustee appointed by Employer. Trustee will make distributions from the Plan in accordance with the written directions of the Administrator. To the extent Trustee follows such written direction, Trustee is not obligated in any manner to ensure a distribution complies with the terms of the Plan, that a participant or beneficiary is entitled to such a distribution, or that the amount distributed is proper under the terms of the Plan. If there is a dispute as to a payment from Trustee, Trustee may decline to make payment of such amounts until the proper payment of such amounts is determined by a court of competent jurisdiction, or Trustee has been indemnified to its satisfaction. Section 2.7 Employer Representation Employer represents that it is eligible to establish and maintain an eligible deferred compensation plan pursuant to Code Section 457(b). Employer represents that the Plan satisfies the requirement to be an eligible deferred compensation plan as defined in Code Section 457(b). Employer represents that the Plan is a governmental plan as defined in Code Section 414(d) and ERISA Section 3(32). Employer represents and warrants that the specifications, terms and conditions of the Plan are current and comply with applicable law, and that Employer has communicated such specifications, terms and conditions to Trustee in writing. Employer further represents and warrants that its underlying business and/or the plan will not cause or put Trustee in position to violate any federal, state or local law, regulation, rule or ordinance. Indian River County BOCC; 457(b) INDR-001 75 RPS00804-AL 2 Article III — Administration of Plan Section 3.1 Payment of Benefits At the direction of the Administrator, Trustee shall pay moneys or other property directly to or for the benefit of participants and their beneficiaries, or to a paying or disbursing agent, which may be the Administrator. Any moneys or other property disbursed or paid over by Trustee pursuant to this Section 3.1 shall no longer be part of the Trust. Section 3.2 Reliance on Administrator Any directions pursuant to Section 3.1 may, but need not, specify the application to be made of payments so directed. Each direction to Trustee under Section 3.1 shall constitute a representation and warranty by the Administrator that such direction is in accordance with this Agreement, the Plan and applicable law, and Trustee shall have no duty to make any independent inquiry or investigation before acting upon such direction, or to see to the application of any moneys or other property so paid. Section 3.3 Trustee Not Responsible for Plan Administration Trustee shall not be responsible in any way for the determination, computation, payment or application of any benefit, or for any other matter affecting the administration of the Plan by the Employer or the Administrator or any organization, entity, committee or other person to whom such responsibility is delegated under the Plan. Section 3.4 Trustee Not Responsible for Enforcing Contributions or for Sufficiency of Account Trustee shall not be responsible for enforcing payment of any contribution to the Trust, for the timing or amount thereof, or for the adequacy of the Trust or any part thereof or the funding standards adopted for the Plan to meet or discharge any liabilities of the Plan or the Trust. Trustee has no duty to inquire into the source of any money or property transferred to it nor to inquire into the authority or right of the transferor of such money or property to transfer such money or property to Trustee. Trustee does not have any duty to see that the contributions received by it comply with the provisions of the Plan, nor is Trustee obligated to collect any contributions from the Employer; provided, however, Trustee will take such reasonable collection efforts as directed by the Employer. Section 3.5 Plan -to -Plan Transfers/Rollovers If the Plan permits plan -to -plan transfers and/or rollovers Trustee shall take such action as is necessary or desirable to accomplish any such matter, all pursuant to appropriate directions from the Administrator. The Administrator shall be responsible to determine that any such plan -to -plan transfers and/or rollovers comply with applicable law. Article IV — Investment of Trust Section 4.1 Employer Authority Except as otherwise provided in Section 4.2 or 4.3, the Employer shall possess all discretionary authority for the management and control of the Trust. The Employer shall be responsible for determining the diversification policy (if and to the extent required), and for monitoring adherence by any Investment Manager or Investment Managers to such policy. Section 4.2 Investment Manaqers Discretionary authority for the management and control of all or any portion of the Trust may be delegated by the Employer, in its absolute discretion, to one or more Investment Managers. The terms and conditions of appointment, authority and retention of any Investment Manager shall be the sole responsibility of the Employer. The Employer shall promptly notify Trustee in writing of the appointment or removal of any Investment Manager and the portion of the Trust over which such Investment Manager shall have authority. Any notice of appointment pursuant to this Section 4.2 shall constitute a Indian River County BOCC; 457(b) INDR-001 76 RPS00804-AL 3 representation and warranty that the Investment Manager has been appointed in accordance with the Plan and that any Investment Manager is an Investment Manager as defined in this Agreement. The Employer may limit, restrict or impose guidelines affecting the exercise of the discretion conferred on any Investment Manager, and shall be responsible for communicating, and monitoring adherence to, any such limitations, restrictions or guidelines. Section 4.3 Individually Directed Accounts As to each individually directed account permitted by the Plan, the applicable participant shall possess all of the investment and investment -related authority held by the Employer hereunder, and Trustee shall invest and reinvest such assets pursuant to the directions of the participant, as communicated in writing, via facsimile or by electronic transmission to Trustee by the Administrator or its delegate. Trustee shall be fully protected in relying upon the instructions of the Administrator or its delegate as to the participant's directions. Trustee shall not be liable to the participant or any of his or her beneficiaries for any loss resulting from any action taken at the direction of the participant. Section 4.4 Reliance on Employer, Investment Managers, Participants Trustee shall invest and reinvest the Trust pursuant to the directions of the Employer, participants — acting through the Administrator or its delegate - or the Investment Manager or Investment Managers, as the case may be. Trustee shall have no investment responsibility with respect to the Trust, and shall have no duty to inquire into the directions of the Employer, participants — acting through the Administrator or its delegate - any Investment Manager, as the case may be, to solicit such directions, to determine such directions are in compliance with the provisions of the Plan, or to review and follow the investments made pursuant to any such directions, other than to the extent required by law. Any such investment direction shall constitute a representation and warranty that the transaction will not constitute a prohibited transaction or other violation under the Code and that the investment is authorized under this Agreement, the Plan, any other applicable agreement affecting investment authority under the Plan, or any applicable law. Trustee may refuse to comply with any directions in the event Trustee, in its sole discretion, deems such directions improper by virtue of applicable law. Trustee shall not be responsible or liable for any loss or expense which may result from Trustee's refusal and failure to comply with any such directions. Section 4.5 Late Day Trading Trustee does not engage in the practice of late day trading. In the event trade orders made by the Plan or its participants are received before the established cutoff time for Trustee or another party to receive such orders and such orders cannot be processed by the cutoff time, the Employer authorizes Trustee to process these orders after the cutoff time as if they were received and processed before the cutoff time. Section 4.6 Self -Directed Brokerage Accounts In the event the Plan now or hereafter provides for self-directed brokerage accounts ("Participant SDBAs") as an investment option, the Employer and Trustee agree that the provisions set forth on the Self Directed Brokerage Accounts Addendum attached hereto shall be deemed incorporated into this Agreement. The Employer agrees to give Trustee reasonable advance notice of its intention to offer Participant SDBAs. Section 4.7 Plan Expense Account The Employer hereby directs Trustee to establish a segregated sub -account within the Trust for the purpose of receiving certain amounts from mutual fund sub -transfer agents, administrative service fees, shareholder servicing fees or other revenue or annuity spread revenue (the "plan expense account"). As authorized by Employer, the plan expense account will be invested in an investment that has an investment objective of capital preservation and liquidity. The Employer hereby agrees that if included as an investment option under the Plan, such investment shall be a group fixed annuity or stable value investment issued by an affiliate of Trustee. If Employer chooses not to include such investment issued by an affiliate of Trustee, then the plan expense account will be invested in such other investment option as designated by the Employer. Indian River County BOCC; 457(b) INDR-001 77 RPS00804-AL 4 From time to time, Trustee shall receive such fees or revenue and deposit or sweep it into the plan expense account. Such funds shall be considered Plan assets. The activity of the plan expense account shall be provided quarterly to the Employer. Any Plan expense to be paid from the plan expense account shall be at the direction of the Administrator or its delegate to Trustee or its affiliate. At no time shall Trustee or its affiliates have discretion to make deposits into or payment out of the plan expense account. If the balance in the account is to be used as contributions to Plan participants, the Administrator or its delegate will notify Trustee or its affiliate of the amount in the plan expense account that will be used for participant contributions. The Plan's record keeper will coordinate the transfer of funds from the plan expense account to participant accounts. Trustee is not responsible for ensuring the accuracy or adequacy of assets transferred to the plan expense account but will rely on its affiliated recordkeeper and service provider, Lincoln Retirement Services Company, LLC, to transfer the agreed amounts to the plan expense account. The Employer will have control over such account and will be responsible for any application or use of such funds in the plan expense account. Article V — Powers of Trustee Section 5.1 General Powers Upon the directions of the Employer, the Investment Manager(s), or the Administrator on behalf of the participants with respect to individually directed accounts, as the case may be, Trustee shall be authorized and empowered to exercise any and all of the following rights, powers and privileges with respect to the Trust: (a) To invest and reinvest the principal and income of the Trust Fund, without distinction between principal and income, in such securities as but not limited to, common stocks, preferred stocks, bonds, bills, notes, commercial paper, debentures, mortgages, equipment trust certificates, investment trust certificates, partnership interests and also in other investments, whether real, personal or mixed property. (b) To receive any and all money and other property of whatsoever kind or nature due or owing or belonging to the Trust. (c) To settle, compromise, or submit any claims, debts or damages due or owing to or from the Trust; to commence or defend suits or legal proceedings; and to represent the Trust in all suits or legal proceedings in any court of law or equity or before any other body or tribunal, insofar as such suits or proceedings relate to any part of the Trust or the administration thereof. (d) To borrow money from any source as may be necessary or advisable to effectuate the purposes of the Trust. (e) To generally take all actions, execute all instruments, and exercise all rights and privileges with relation to the Trust, whether or not expressly authorized, as Trustee is directed or in its sole discretion deems necessary or desirable, subject however to the directions by an appropriate party as set forth in this Agreement. (f) To execute and deliver any vote, proxy, tender offer or similar rights incident to the ownership of any securities held in the Trust, except that Trustee shall exercise such rights only pursuant to the written instructions of the Employer, or the written instructions of plan participants or beneficiaries if the Plan gives such rights to participants or beneficiaries, or by the Investment Manager if an Investment Manager has been appointed pursuant to Section 4.2. If no such written directions are timely received from the appropriate party, Trustee shall not vote or exercise any such rights with respect to such securities. (g) To sell, exchange, convey, transfer or otherwise dispose of any such property at public or private sale, for cash or credit, or partly for cash and partly for credit, and with or without notice or advertisement of any kind. (h) To purchase whole or part interests in real property or in mortgages on real property, wherever situated, directly or through financial intermediaries or entities, such as, but not limited to, Indian River County BOCC; 457(b) INDR-001 78 RPS00804-AL 5 partnerships, and to mortgage or lease for any term any real property or part interest in real property; and to delegate to a manager the management and operation of any interest in such property or properties. (i) To purchase or sell, write or issue, puts, calls or other options, covered or uncovered, to enter into financial futures contracts, forward placement contracts and standby contracts, and in connection therewith, to deposit, hold or pledge assets of the Trust Fund. (j) To collect and receive any and all money and other property of whatsoever kind or nature due or owing or belonging to the Trust Fund and to give full discharge and acquittance therefore; and to extend the time of payment of any obligation at any time owing to the Trust Fund. (k) To transfer, from time to time, all or any part of the Trust Fund to any common, collective or commingled trust fund exempt from taxation under the Code ("Collective Trust") and/or to enter into the relevant trustee agreement on behalf of the Plan for such Collective Trust, to be held and administered subject to the terms and provisions of the relevant trust agreement, and such trust agreement shall be deemed adopted as part of this Agreement and the Plan to the extent that any portion of the Trust Fund is invested therein. (1) To apply for and procure from an insurance company as an investment of the Trust such annuity, or other contracts on the life of any participant as the Administrator shall deem proper; exercise, at any time or from time to time, whatever rights and privileges may be granted under such annuity, or other contracts; and collect, receive, and settle for the proceeds of any such annuity, or other contracts as and when entitled to do so under the provisions thereof. (m) To, upon the written direction of the Administrator, enter into a transfer agreement with the Trustee of another qualified retirement plan and to accept a transfer of assets from such retirement plan on behalf of any employee of the Employer. Trustee is also authorized, upon the written direction of the Administrator, to transfer some or all of a participant's vested account balance to another qualified retirement plan on behalf of such participant. Section 5.2 Uninvested Cash and Float With respect to uninvested cash and float, while Trustee may not at any time accept deposits of funds, it is understood that State Street Bank (or any successor thereto) (hereinafter, the "depository bank"), acting on behalf of Trustee, may from time to time, have on hand funds from (i) the receipt of contributions that are awaiting investment or (ii) the sale of assets which are awaiting reinvestment or distribution. While there is not an explicit fee debited from plan assets as float revenue, a noninterest - bearing omnibus bank account has been established at depository bank in which to temporarily place cash to facilitate purchases and liquidations into and out of the Plan. The account is a noninterest bearing account, so no explicit directfloat income is earned on the cash in transit. However, the account does earn banking credits based on the following formula: The Fed Funds Rate x 1/360 treasury rate. Contributions into the account are generally held in the account for one to two days. Distributions from the account are generally in the account for less than one day for wires and ACH transfers and three or more days for distributions. The length of time cash stays in this account can vary depending on how quickly the check is redeemed by the participant or how quickly payroll is processed. Credits earned are used entirely to pay banking fees and other fees that would otherwise be charged to Trustee and its clients. Section 5.3 Valuations Trustee shall periodically determine the market value of the assets of the Trust or, in the absence of readily ascertainable market values, at such values as Trustee shall determine in accordance with methods consistently followed and uniformly applied. With respect to assets without readily ascertainable market values, Trustee may rely for all purposes of this Agreement on the latest valuation and transaction information submitted to it by the person responsible for the investment. The Employer shall cause such person to provide Trustee with all information needed by Trustee to discharge its obligations to value such assets and to account for such assets under this Agreement. Article VI — Records and Accounts of Trustee Indian River County BOCC; 457(b) INDR-001 79 RPS00804-AL 6 Section 6.1 Records Trustee shall keep accurate and detailed accounts of all investments, receipts, disbursements and other transactions in the Trust and all accounts, books and records relating thereto shall be open to inspection and audit at reasonable times during normal business hours by any person designated by the Employer. Section 6.2 Annual and Other Periodic Accounts Within ninety (90) days following the close of each Plan year, and within sixty (60) days following the close of each Plan quarter, Trustee shall file with the Employer or the Administrator a written account setting forth the receipts and disbursements and the investments and other transactions effected by it with respect to the Trust during such Plan year or quarter, as the case may be. Unless otherwise requested, recipients will be set up for quarterly statements and access via the web for all trust account reporting. Upon the expiration of ninety (90) days from the date of mailing (or, if applicable, distribution via e-mail or other electronic means) of its annual or quarterly account, Trustee shall be forever released and discharged from all liability and further accountability to the Employer, the Administrator or any other person with respect to the accuracy of such accounting and all acts and failures to act of Trustee reflected in such account, except to the extent that the Employer or the Administrator shall, within such 90 -day period, file with Trustee specific written objections to the account. Neither the Employer, the Administrator, any participant nor any other person shall be entitled to any additional or different accounting by Trustee and Trustee shall not be compelled to file in any court any additional or different accounting. Section 6.3 Tax Returns and Tax Withholding and Reporting Unless otherwise agreed to in writing by the Parties, Trustee shall prepare and file tax returns or other filings with respect to the Trust only if such returns or filings must be filed by Trustee rather than by the Administrator or the Employer. If Trustee disburses funds from the Trust to a Plan participant, Trustee shall withhold and remit to the Internal Revenue Service ("IRS') and other applicable taxing authorities the amount of any income tax withholding required by law. Unless otherwise agreed to in writing by the Parties, the Employer shall be responsible for preparing and filing all other applicable federal and state reports. Article VII — Trustee's Rights/Limitation of Trustee's Responsibility Section 7.1 No Implied Duties The duties and responsibilities of Trustee shall be solely determined in accordance with this Agreement, shall not be deemed to be enlarged by the provisions of the Plan, and no other or further duties or responsibilities shall be implied against or imposed on Trustee. Section 7.2 Evidence of Authority The Employer shall furnish Trustee from time to time with a certificate evidencing the name, title and specimen signature of any person authorized to give instructions to Trustee on behalf of the Employer hereunder. The Employer shall also furnish Trustee from time to time or cause Trustee to be furnished from time to time with certified lists of the names and signatures of all other organizations, entities, committees or other persons authorized to act as the Administrator or in any manner authorized to issue notices, requests, directions, instructions or other communications to Trustee pursuant to this Agreement. The Employer shall cause each Investment Manager to furnish Trustee from time to time with the names and signatures of the persons authorized to direct Trustee on its behalf hereunder. Trustee shall be entitled to rely upon each such evidence of authority until it is revoked in writing. Indian River County BOCC; 457(b) INDR-001 80 RPS00804-AL 7 Section 7.3 Reliance by Trustee Trustee shall be entitled to rely upon each representation, information, notice, direction, certificate and other communication furnished by or on behalf of the Employer, the Administrator, and each Investment Manager; and Trustee shall be protected to the extent the law permits in acting in accordance with and relying upon such representations, information, notices, directions, certificates and other communications; and Trustee shall be under no duty to make any inquiry or investigation in connection therewith. Section 7.4 Trustee May Employ Agents Trustee may from time to time employ and consult with counsel (who may also serve as counsel for the Employer or Trustee) and shall be protected to the extent the law permits in acting upon such advice of counsel. Trustee may also from time to time employ accountants and other agents as may be reasonably necessary in administering and protecting the Trust, and Trustee may pay such counsel, accountants and other agents reasonable compensation, which shall be reimbursed to Trustee in accordance with Section 8.1. Trustee shall at no time be obligated to institute any legal action or to become a party to any legal action unless Trustee shall have been indemnified to its satisfaction for any fees, costs and expenses to be incurred in connection with such legal action. Section 7.5 No Obligation to Act on Unsatisfactory Notice Trustee shall not be liable for any failure to act pursuant to any notice, direction or any other communication from the Employer, the Administrator, any Investment Manager or any other person or delegate of any of them unless and until it shall have received directions in the form specified in this Agreement. Article VIII — Compensation, Taxes, Expenses, Indemnity Section 8.1 Payment of Compensation and Expenses Trustee shall be entitled to receive reasonable compensation for its services and reimbursement of all reasonable costs and expenses incurred in connection with the administration of the Trust. Unless and until agreed otherwise in writing by the Employer and Trustee, the compensation of Trustee shall be as agreed upon from time to time among Trustee and the Employer; and in the event that Trustee shall be called upon to render any extraordinary services, it shall be entitled to additional compensation. Any change in Trustee's compensation or charges will be applicable only after reasonable notice to the Employer. If such compensation, costs and expenses are not paid by the Employer, they shall be paid from the Trust. Section 8.2 Taxes All income or other taxes of any kind whatsoever which may be properly levied or assessed under existing or future laws upon, or in respect of, the Trust shall, at the direction of the Administrator, be paid by Trustee out of the Trust, and, until paid, shall constitute a charge upon the Trust. Section 8.3 Indemnification by Employer In addition to any other remedies at law or in equity available to Trustee for breach of this Agreement by Employer, the Employer shall indemnify Trustee against, and agrees to hold Trustee harmless from, any and all damages, losses, costs, judgments, fines and expenses (including attorneys' fees and disbursements) of any kind and nature related to this Agreement including any such items arising out of any threatened, pending, or completed claim, action, suit, or proceeding, whether civil, criminal, administrative, or investigative (hereinafter in the aggregate referred to as the "Losses"), unless such Losses results from Trustee's intentional wrongdoing or negligent actions or omissions. Except as otherwise provided by the preceding sentence, the Employer also shall indemnify Trustee against, and agrees to hold Trustee harmless from, all Losses arising from any actions or breach of any responsibility by any party other than Trustee. Indian River County BOCC; 457(b) INDR-001 81 RPS00804-AL 8 The Employer agrees to indemnify Trustee against any Losses arising as a result of any act taken or failure to act by Trustee, in accordance with the directions received from the Employer, Administrator, Investment Manager, participant, or a designee specified by the Administrator or the Employer. Trustee shall not be responsible in any way for any actions taken, or failure to act, by a prior trustee or custodian. The Employer shall indemnify and hold harmless Trustee for any Losses for such prior trustee's or custodian's acts or inactions. The Employer shall indemnify Trustee against, and agrees to hold Trustee harmless from any Losses resulting from Trustee's actions or inactions pursuant to the provisions of Section 5.1(f) pertaining to voting, proxies, tender offers or similar rights. As a condition of indemnification, (i) Trustee shall give Employer timely notice in writing of any potential Losses promptly after Trustee becomes aware of them; (ii) Employer shall, at its option, have sole control of the defense of such Losses; and (iii) Trustee shall cooperate with Employer in the defense of such Losses. Employer shall not be responsible for the settlement of any claim, demand or lawsuit related to the Losses without Employer's written consent. For purposes of this Section 8.3, the term Trustee shall include Trustee's officers, directors (or managers), employees and agents. Section 8.4 Indemnification by Trustee In addition to any other remedies at law or in equity available to Employer for breach of this Agreement by Trustee, Trustee will indemnify Employer, from and against any Losses imposed on or incurred by Employer and related to this Agreement where such Losses are the result of Trustee's intentional wrongdoing or its negligent actions or omissions. However, Trustee will have no liability with respect to claims of breach of its duties for (i) the inclusion, exclusion, or deletion of investments in the Plan, or (ii) the monitoring of such investments after the Employer's selection of them as an investment option for the Plan. As a condition of indemnification, (i) Employer shall give Trustee timely notice in writing of any potential Losses promptly after Employer becomes aware of them; (ii) Trustee shall, at its option, have sole control of the defense of such Losses; and (iii) Employer shall cooperate with Trustee in the defense of such Losses. Trustee shall not be responsible for the settlement of any claim, demand or lawsuit related to the Losses without Trustee's written consent. For purposes of this Section 8.4, the term Employer shall include Employer's officers, directors (or managers), employees and agents. Article IX — Resignation or Removal of Trustee Section 9.1 Removal or Resignation of Trustee Trustee may be removed by the Employer at any time by 60 days prior written notice to Trustee. Trustee may resign at any time by written notice to the Employer. Such notice shall be effective 60 days after receipt by the Employer or such later date as shall be specified therein, or at an earlier date by the mutual agreement of the Parties. Upon the effective date of the removal or resignation of Trustee, Trustee shall deliver the Trust to a successor Trustee or Trustee designated by the Employer. If, for any reason, the Employer cannot or does not act promptly to appoint a successor Trustee, Trustee may apply to a court of competent jurisdiction for the appointment of a successor Trustee. Any expenses incurred by Trustee in connection therewith shall be charged to and paid from the Trust as an expense of administration. Section 9.2 Reserve for Expenses Trustee is authorized to reserve such sum of money (and for that purpose to liquidate property to produce such sum) as it may deem advisable for payment of all proper charges against the Trust, Indian River County BOCC; 457(b) INDR-001 82 RPS00804-AL 9 including expenses in connection with such resignation or removal, and any balance of such reserve remaining after the payment of such charges shall be paid over to the successor Trustee or Trustee. Article X — Amendment or Termination of Agreement Section 10.1 Amendment of Agreement Subject to Section 2.3, a Party may not alter, modify or amend this Agreement in whole or in part at any time, without the prior written consent of the other Party. Section 10.2 Termination of Agreement Subject to Sections 2.3 and 9.1, the Parties may at any time terminate this Agreement by written notice given to the other Party. The Parties may by mutual agreement determine an earlier time when such termination shall be effective. Such notice of termination shall be accompanied by a certified copy of a resolution of the Board of Directors of the Employer approving such termination. In the event of the termination of this Agreement, the Trust shall be distributed pursuant to Article IX or XI hereof. Article XI — Termination of Plan Section 11.1 Amendment or Termination of Plan Subject to Section 2.3, if Employer alters, modifies, amends or terminates the Plan in whole or in part, Employer shall give written notice to Trustee promptly of such alteration, modification or amendment. Such notice shall include a certified copy of a resolution of the Board of Directors of the Employer or letter on Employer's letterhead and signed by an officer with authority over the Plan. Section 11.2 Cessation of 457(b) Status The Employer shall promptly notify the Trustee if the Plan becomes an ineligible deferred compensation plan pursuant to the provisions of Code Section 457(f), or if the Plan ceases for any reason to qualify as a Section 457(b) plan. Section 11.3 Application of Funds on Termination In the event of termination of the Plan, the interests of the Plan participants shall vest and be processed in accordance with the written directions of the Employer, accompanied by a certificate that such disposition is in accordance with the terms of the Plan. Article X11 — General Provisions Section 12.1 Governing Law To the extent not preempted by the provisions of any applicable federal law, this Agreement shall be administered, construed and enforced according to the laws of the State of Indiana, and shall be deemed to have been executed and delivered in that State. Section 12.2 Entire Agreement Trustee's duties and responsibilities to the Plan or any person interested therein shall be limited to those specifically set forth in this Agreement. No amendment to the Plan or any other document affecting the Plan shall affect Trustee's duties or responsibilities hereunder without its prior written consent. Section 12.3 Notices Except as otherwise provided in writing and agreed to by Trustee, all notices, reports, accounts and other communications from Trustee to the Employer, the Employer, the Administrator, the Investment Manager(s) or any other person shall be in writing or in such other form agreed to by the parties, Indian River County BOCC; 457(b) INDR-001 83 RPS00804-AL 10 including transmission by electronic means through the facilities of third parties or otherwise. Any paper communication shall be deemed to be duly given if mailed; postage prepaid, or otherwise placed for delivery by a national delivery service, shipping prepaid, or is delivered by hand to such person at the address appearing on the records of the Trustee. Any electronic notice shall be deemed to be duly given at the time the electronic notification is sent. Except as otherwise provided in writing and agreed by Trustee, all directions, notices, objections and other communications to Trustee shall be in writing or in such other form, including transmission by electronic means through the facilities of third parties or otherwise, specifically agreed to in writing by Trustee and shall be deemed to have been given when received by Trustee at its offices. Section 12.4 Plan Documents Upon execution of this Agreement, Trustee hereby requests the Named Fiduciary to provide complete, current copies of the Plan documents. Trustee shall be entitled to rely upon the Named Fiduciary's attention to this obligation and shall be under no duty to request such documents again or to inquire of any person as to the existence of any documents not provided hereunder. Section 12.5 Spendthrift Provision Except as may be required by law, no interest or claim of interest of any kind of any participant under the provisions of this Trust is assignable, nor may any such interest or claim be subject to garnishment, attachment, execution or levy of any kind, and no attempt to transfer, assign, pledge or otherwise encumber or dispose of such interest by act of the person involved or by operation of law will be recognized. Section 12.6 Effect All persons at any time interested in the Plan shall be bound by the provisions of this Agreement and, in the event of any conflict between this Agreement and the provisions of the Plan or any instrument or agreement forming part of the Plan, the provisions of this Agreement shall control. Section 12.7 Severability The illegality or unenforceability of any provisions of this Agreement or any instrument or agreement required hereunder shall not in any way affect or impair the legality or enforceability of the remaining provisions of this Agreement or any instrument or agreement required hereunder. Section 12.8 Headings and Titles The titles of the Articles and headings of Sections in this Trust Agreement are for convenience of reference only and in case of conflict the text of this Trust Agreement rather than such titles or headings shall control. Section 12.9 Binding Agreement This Agreement shall be binding upon Trustee and the Employer, their successors and assigns, and upon the participants and their beneficiaries, heirs, executors, administrators and assigns. Section 12.10 Merger or Consolidation Any legal entity into which Trustee may be merged, or with which it may be consolidated, or any legal entity resulting from any merger or consolidation to which Trustee may be a party, or any legal entity succeeding to the business of Trustee or to which substantially all of the assets of Trustee may be transferred, shall be the successor of Trustee hereunder without the execution or filing of any paper and without any further action on the part of the parties hereto, with like effect as if such successor Trustee had originally been named Trustee herein. Indian River County BOCC; 457(b) INDR-001 AA RPS00804-AL 11 Section 12.11 Force Majeure Trustee shall have no liability for any losses arising out of delays in performing the services which it renders under this Agreement which result from events beyond its control, including without limitation, interruption of the business of Trustee due to acts of God, acts of governmental authority, acts of war, riots, civil commotions, insurrections, labor difficulties (including, but not limited to, strikes and other work slippages due to slow -downs), or any action of any courier or utility, mechanical or other malfunction, or electronic interruption. Section 12.2 Shareholder Communications Act Trustee is obligated to provide to issuers of securities identifying information such as Employer's name(s), address(es), and share positions, unless Employer objects below or through subsequent notice to Trustee in writing. Employer requests that Trustee withhold Employer's identifying information from issuers. Indian River County BOCC; 457(b) INDR-001 05 RPS00804-AL 12 IN WITNESS WHEREOF, the Employer and Trustee have caused this Agreement to be executed by their respective duly authorized officers, all as of the day and year first above written. Employer By. Jason E. Brown Title: County Administrator Attest: Suzanne M. Boyll Title: Human Resources Director Trustee By: Ralph Ferraro Title: President Indian River County BOCC; 457(b) INDR-001 RPS00804-AL Indian River County BOCC Deferred Compensation Plan for Publkc Employees 57 ovemmental Plan and Employer: Trust % Signature: Signature: Lincoln Financial Group Trust Trustee: Company, as Trustee �A; �i Signature: Self -Directed Brokerage Accounts Addendum Effect of Addendum This Addendum is part of the Trust Agreement between the Employer and the Trustee upon Employer establishing self-directed brokerage accounts (SDBAs) for its participants as described herein. Except as otherwise provided in this Addendum, Participant SDBAs (as hereafter defined) shall be subject to all of the terms and conditions of the Trust Agreement and the TD Ameritrade Documents (as hereafter defined) governing the Participant SDBAs. Participant SDBAs The Plan provides that certain self-directed brokerage accounts (the 'Participant SDBAs") may be invested by a participant in investments selected solely by the participant, subject to such limitations as may be determined by the Employer from time to time, and not solely from among the eligible investments otherwise applicable to all participant accounts or the Trust in its entirety. The Employer shall communicate any such limitations in writing to the Trustee. The Employer acknowledges and agrees that the Trustee, if and as directed by the Administrator or other person or entity authorized to give instructions under the Agreement on behalf of a participant, shall establish accounts representing Participant SDBAs through TD Ameritrade, Inc. ("TD Ameritrade"), a registered broker-dealer, and shall enter into an agreement or agreements with TD Ameritrade governing such Participant SDBAs (the 71D Ameritrade Documents"). Participant SDBAs shall be subject to the TD Ameritrade Documents and to such terms and procedures as are agreed upon by the Trustee, the Employer and the Administrator or its delegate from time to time, and also to such other terms and procedures as may be reasonably required by TD Ameritrade from time to time and communicated in writing by TD Ameritrade or the Trustee to the Employer and the Administrator or other person or entity authorized to give instructions under the Agreement on behalf of a participant. Authority of Participants Regarding Participant SDBAs, Etc. Once a Participant SDBA is established through TD Ameritrade, a participant shall communicate all investment and investment related instructions relating to such account to TD Ameritrade, and TD Ameritrade, on behalf of the Trustee, shall invest the Participant SDBAs pursuant to the directions of the participant. The participant shall be solely responsible for managing his or her Participant SDBA subject to the terms and conditions applicable to such Participant SDBA. The Employer shall be responsible for communicating to participants (or causing to be communicated to participants) all applicable terms and conditions. Notwithstanding the foregoing, unless and until otherwise agreed in writing by the Employer and the Trustee, the Administrator or its delegate shall direct the Trustee with respect to: (i) the terms and conditions of all transfers of cash and/or other property between a Participant SDBA and the remainder of the Trust, including, without limitation, any sale or liquidation instructions associated with such transfers; and (ii) all withdrawals and distributions on behalf of each participant. Indian River County BOCC; 457(b) INDR-001 87 RPS00804-AL 14 Reliance on Participants, Etc. The Trustee and TD Ameritrade shall be fully protected in relying upon the directions of the participant with respect to investments and investment related decisions within Participant SDBAs. The Trustee shall not be liable to the participant or any of his or her beneficiaries for any loss resulting from any action taken at the direction of the participant or the Administrator, or other person or entity authorized to give instructions under this Addendum. Neither the Trustee nor TD Ameritrade shall have any investment responsibility with respect to the Participant SDBAs, or any duty to inquire into the directions of the participants, to solicit such directions or to review and follow the investments made pursuant to any such directions. Any such investment direction by a participant shall constitute a representation and warranty that the transaction will not constitute a non-exempt prohibited transaction under the Code and that the investment is authorized under the Agreement, the Plan and any other applicable agreement affecting the participant's investment authority under the Plan. Further, the Trustee and TD Ameritrade shall also be fully protected in relying upon the directions of the Administrator, or other person or entity authorized to give instructions under this Addendum. Costs of Participant SDBAs The costs and expenses of establishing and maintaining Participant SDBAs shall be borne by the respective participants and Participant SDBAs, except to the extent otherwise paid by the Employer or the Trust. TD Ameritrade shall be entitled to the payment of fees for each Participant SDBA, including without limitation as TD Ameritrade's compensation for executing securities transactions, without diminution of the compensation otherwise payable to Trustee under the Agreement. Indian River County BOCC; 457(b) INDR-001 88 RPS00804-AL 15 RECORDKEEPING SERVICE AGREEMENT THIS RECORDKEEPING SERVICE AGREEMENT (the "Service Agreement'), effective as of September 29, 2022 ("Effective Date") is entered into by and between LINCOLN RETIREMENT SERVICES COMPANY, LLC ("LRSC") and Indian River County BOCC (the "Employer") (each a "Party"). WHEREAS, LRSC will provide plan -participant -level record keeping to tax -qualified retirement plans governed by Internal Revenue Code (the "Code") Sections 401(a) and 401(k), retirement plans governed by Code Section 403(b), and deferred compensation plans governed by Code Sections 457 and 409A as part of the services provided by LRSC and its affiliates (hereinafter referred to collectively as "Lincoln" where the context permits) (collective services referred to as the "Program") through which investments in shares of registered investment companies (i.e. mutual funds), other appropriate securities, stable value fund and/or group annuities issued by The Lincoln National Life Insurance Company, and, in New York, Lincoln Life and Annuity Company of New York, and their applicable affiliates (collectively referred hereinafter as "Investments") shall be made available to plan participants or their beneficiaries (in the aggregate "Plan participants"). WHEREAS, Employer is the plan sponsor of the Indian River County BOCC Deferred Compensation Plan for Public Employees 457 Governmental Plan and Trust (hereinafter individually or collectively the "Plan"), a retirement plan governed by Code Section 457(b), and desires to fund future contributions to the Plan exclusively through the Program until such time as this Service Agreement may be terminated in accordance with the terms hereof; WHEREAS, Employer has determined, in its sole and exclusive discretion, that the Plan is not subject to the governance of Title I of ERISA since the Plan falls within the scope of the exclusion in ERISA Section 4(b)(1) for a government plan, and has delegated certain non -fiduciary administrative tasks and responsibilities to certain parties under this Service Agreement. NOW THEREFORE, in consideration of the foregoing recitals reincorporated as part of the text hereof, mutual promises hereinafter contained, the value of which is hereby affirmed, LRSC and Employer agree as follows: ARTICLE 1 RECORDKEEPING SERVICES & INVESTMENT OPTION SELECTION 1.1 Recordkeeping Services. LRSC will provide Program recordkeeping services (the "Recordkeeping Services"), as described in this Service Agreement and in the Program administration manual (the "Manual'), which is incorporated into this Service Agreement by reference, as more fully described below. Recordkeeping Services shall be deemed to mean defined contribution retirement plan record keeping services kept at a Plan participant account level. Employer will provide Lincoln with data, information, plan documents and other information and assistance reasonably needed by Lincoln to perform the Recordkeeping Services. Except to the extent prohibited by law Employer will be Indian River County BOCC 457(b) INDR-001 1423269 Page 1 of 2089 responsible for any and all Losses, as defined in Section 3.1 below, which result from its or the Plans' failure to provide such information in a timely manner. 1.2 Eligible Employer and Selection of the Program. The Employer has determined that the Plan is to be funded through the Program, and the Employer certifies that it is eligible under the applicable sections of the Code to sponsor the Plan. Employer instructs Lincoln to comply with all applicable distribution restrictions provided in the Code. The Employer has determined, in its sole and exclusive discretion that the Plan is not subject to the governance of Title I of the Employee Retirement Income Security Act of 1974, as amended, ("ERISA"), and falls within the scope of an applicable exclusion from coverage under ERISA. Employer agrees that it will enter into an agreement with Lincoln Financial Group Trust Company, Inc. (hereinafter referred to as "LFGTC") for it to act as trustee for the Plan and for LFGTC to maintain records on a plan -level basis. Employer agrees to pay for the services provided by LFGTC, and instructs LRSC to pay LFGTC for such services. The fee stated in Section 2.1 includes LFGTC's fee, and LRSC serves only as paying agent in administering any payment to LFGTC. Employer further agrees that it will enter into agreements for certain Investments with investment providers or service providers requiring an agreement directly with the Plan, such as a group fixed annuity (including any group fixed annuity provided by a Lincoln affiliate), stable value fund, a collective investment trust, a self-directed brokerage account or other Investment or service. Employer authorizes LRSC to provide a copy of this Service Agreement to LFGTC. Employer agrees that LRSC's performance under this Service Agreement is contingent upon Employer successfully entering into and maintaining the agreements described in this Section 1.2. 1.3 Investments Selected. a. Investments. By execution of this Service Agreement, Employer certifies that it has selected the investment line-up for the funding of the Plan as listed in Exhibit A. Such Investments shall be made available as investment options to the Plan participants. LRSC and/or its affiliated broker/dealer ("Affiliate Broker/Dealer") has entered or will enter into agreements with various mutual fund families and other issuers of appropriate Investments that make up the lineup. Investments may pay LRSC, Affiliate Broker/Dealer, or their affiliates various fees, as more fully disclosed in Exhibit A hereto, for various services provided. Any change in Investments and the fees paid therefrom will be reflected annually by LRSC in an updated Exhibit A, which will replace the previous Exhibit A and/or Exhibit B without the need to further amend this Service Agreement. An updated Exhibit A shall be provided during the annual plan review or by delivery via U.S. Mail to the Employer at the address provided in Section 4.5 or via email to an email address provided by Employer. b. Lincoln Not Obligated for Investments. The Parties and the Plan expressly agree that Lincoln is not acting as a fiduciary, as defined under ERISA or other applicable law, to the Plan in the selection of the Investments or accounts made available through the Program; that Lincoln has no duty to monitor the Indian River County BOCC 457(b) INDR-001 1423269 Page 2 of 20 90 performance or operation of such Investments or accounts, but will provide Employer with quarterly performance reports prepared by a third party for such Investments; and that Lincoln may enter or terminate its agreements with such Investments without regard to the effect upon the Plan or Plan participants. LRSC will provide Employer with notice as soon as practicable of any change in the availability of an Investment selected by the Employer, and Employer will provide instructions to LRSC in response to these changes within a reasonable amount of time to adjust to the deletion of a particular Investment from the Program. Regarding any change of an Investment by an Investment or Investment's service providers (such as fund mergers, terminations, closures, etc.), LRSC shall provide reasonable notice to Employer of such changes once LRSC receives actual notice from the Investment. LRSC shall have no obligation to ensure it receives notice from an Investment and shall have no liability for an Investment or Investment's service providers failing to provide notice to Lincoln of such changes. 1.4 Reserved. 1.5 LRSC's Duties. In providing the services as part of the Program, LRSC is acting as an independent contractor engaged by the Employer. LRSC is not responsible for determining whether a particular Plan or Investment is appropriate for the Employer, the Plan, or any Plan participant and does not guarantee the performance of any investment option, unless such a guarantee is provided in a group annuity contract between Employer and a Lincoln affiliate. In performing the services listed in this Service Agreement, including the Manual, LRSC does not act as the plan administrator or a fiduciary to the Plan, and LRSC may reasonably rely, without making its own investigation, on any information received from the Employer, the Plan or any official, employee or agent of the Employer or Plan. LRSC will perform ministerial services with respect to the Plan, including facilitating participant transactions, at the direction of the Employer and as set forth in the Manual. 1.6 Payment for Services Employer agrees that the Plan will pay for all services it requests as set forth in this Service Agreement and/or in the Manual. 1.7 _Acceptance of Enrollment Material, Forms, Website and Manual. Employer accepts the content and format of all enrollment materials, administrative forms, and website and any voice response system developed by LRSC with respect to Employer's Program, including all material and forms provided to Employer's employees. Employer warrants that all such material correctly reflects the appropriate administration of the Plan. LRSC will provide Employer enrollment material for, and Employer will distribute that material to, each eligible Plan participant. Employer also accepts the content and format of the Manual. The Manual describes the policies, procedures and operational matters for the Recordkeeping Services. The terms of the Manual may be modified from time to time by LRSC without the need to further amend this Service Agreement. Any changes in the Manual will be effective 30 days after receipt by the Employer, unless an earlier date is agreed to by the Parties, or unless the Employer provides LRSC within that 30 -day period a written objection to specific changes in the Manual. If the Employer raises objections as described above, LRSC and the Employer will consult with each other in an attempt to resolve the Employer's objections. Indian River County BOCC 457(b) INDR-001 1423269 Page 3 of 20 91 1.8 Participants' Instructions. Employer instructs LRSC to follow any instructions by Plan participants regarding their Investments or transactions in the manner and under the conditions set forth in this Service Agreement, including, without limitation, the provisions of the Manual. Any applicable transaction fee will be set forth in Exhibit C. 1.9 Reserved. 1.10 Plan Documents. LRSC has provided the plan documents pursuant to which the Plan will be administered. Employer acknowledges that its counsel has had an opportunity to review such documents. LRSC acknowledges that it bears responsibility for updating and amending such plan documents from time to time to the extent necessary to reflect changes in law that affect the formal compliance status of such documents. Employer acknowledges that LRSC shall not bear responsibility for updating or amending such documents to reflect changes in the design or features of the Plan made by Employer unless and until the Employer has requested any such changes in writing. 1.11 Reserved. 1.12 Representations and Warranties. LRSC and Employer represent and warrant to each other, upon execution and while this Service Agreement is in effect as follows: a. It is not bound by any agreement or arrangement or law or regulation which would preclude it from entering into, or from fully performing the services or obligations required under this Service Agreement; and b. Its license or certification in any jurisdiction has never been denied, suspended, revoked, terminated, voluntarily relinquished under threat of disciplinary action, or restricted in any way. 1.13 Confidentiality. Each Party recognizes and acknowledges that, by virtue of entering into this Service Agreement, it may have access to certain information of the other Party that is confidential or proprietary and constitutes valuable, special and unique property of that Party ("Confidential Information"). Each Party agrees that it will not at any time, either during or subsequent to the term of this Service Agreement, disclose to others, use, copy or permit to be copied, any Confidential Information, without the other Party's express prior written consent, except pursuant to LRSC's duties hereunder and or as required by applicable law. Notwithstanding the foregoing and except to the extent that it constitutes personally identifiable information within the meaning of applicable privacy laws, "Confidential Information" shall not include any information that: (a) is or becomes generally available to the public, other than as a result of a breach of this Service Agreement; (b) is lawfully obtained from a third party with the right to disclose such information; or (c) is independently developed by a Party without use of the other Party's Confidential Information. Employer expressly consents to the disclosure of its Confidential Information to its Plan consultant; financial professional (including a registered investment advisor ("RIA")); third party administrator ("TPA"); payroll provider; accountant; broker/dealer as defined herein; any other third party who provides benchmarking analysis or analytics regarding the Plan or Plan participants; and any other third party; and in all cases, such persons shall have Indian River County BOCC 457(b) INDR-001 1423269 Page 4 of 2092 been identified by Employer to LRSC and for which the Employer shall have authorized LRSC to provide access for administrative purposes (collectively the "Authorized Financial Professionals"). If the Plan has a TPA, as identified in this Service Agreement, then Employer further expressly consents to the disclosure of otherwise confidential and proprietary information to said TPA. Except for disclosure by a Party to its legal counsel, accountant or Authorized Financial Professional neither Party will disclose the terms of this Service Agreement to any person who is not a Party, unless disclosure is required by law or otherwise authorized by this Service Agreement or with the consent of the non -disclosing Party. Unauthorized disclosure of the terms of this Service Agreement will be a material breach of this Service Agreement and will provide the non -breaching Party the option of pursuing remedies for breach and/or immediate termination of this Service Agreement. The provisions of this Section 1.13 will survive the expiration or other termination of this Service Agreement, regardless of the cause of such termination. Employer instructs Lincoln to provide Plan and Plan participant information to the Authorized Financial Professionals. Employer represents and warrants that it has conducted due diligence on the Authorized Financial Professionals regarding their data security system to protect Plan participant data, including but not limited to name, address, social security number, employment status, marital status, investment allocation and account balance. Lincoln shall not be liable for any data breach or intrusion caused by the Authorized Financial Professionals in any way, and except to the extent prohibited by law Employer shall hold harmless and indemnify Lincoln pursuant to Section 3.1 under this Agreement regarding such breach. (a) Information Security. (1) Protection of Employer's Confidential Information. Lincoln shall establish and maintain a comprehensive written information security program that includes appropriate administrative, technical, physical, organizational and operational safeguards and other security measures reasonably designed to: (i) ensure the security and integrity of Confidential Information; (ii) protect against any anticipated or reasonably likely threats or hazards to the security or integrity of Confidential Information; and (iii) prevent against any actual or suspected unauthorized access to or, acquisition of Confidential Information. Such measures shall include, without limitation, establishing and maintaining network and internet security procedures, protocols, security gateways and firewalls with respect to such Confidential Information. Lincoln shall take all reasonable measures designed to: (i) secure and defend all Lincoln locations, equipment, systems and other materials and facilities against "hackers" and others who may seek, without authorization, to disrupt, damage, modify, access or otherwise use Lincoln systems or the information found therein; (ii) prevent Employer from having access to the data of other customers; (iii) prevent Employer's Confidential Information from being commingled with or contaminated by the data of other Lincoln customers; and (iv) prevent unauthorized access to any Employer's Confidential Information; and (v) continuously monitor its systems for potential areas where security could be breached. Indian River County BOCC 457(b) INDR-001 1423269 Page 5 of 2093 (2) Security Breach and Notice. Lincoln will promptly notify Employer after Lincoln has confirmed an incident involving the unauthorized access to or acquisition of any Employer Confidential Information ("Security Breach"). Lincoln shall: (i) commence all reasonable efforts to investigate the Security Breach, mitigate and correct its causes, and remediate its results; and (ii) provide to Employer written notice thereof. Thereafter, Lincoln shall, and shall cause any third parties acting on Lincoln's behalf, that are in possession or control of any affected Confidential Information, to use commercially reasonable efforts to prevent a recurrence of any Security Breach and cooperate with any similar efforts Employer or its affiliates may undertake. Lincoln will reasonably consult with Employer, in order to provide advance notice and review regarding any communication or notice Lincoln determines necessary with any third party, including but not limited to the media, consumers and affected individuals regarding any Security Breach without the express written consent of Employer, provided such consultation not be unreasonably withheld. Lincoln's notification of or response to the Security Breach under this Section will not be construed as an acknowledgement by Lincoln of any fault or liability with respect to the Security Breach. Lincoln will provide a credit monitoring service to any impacted consumers as required by applicable federal and state privacy laws. (3) Audit Review. Employer, or an independent third party selected by Employer, may perform security assessments, via questionnaire, of Lincoln's compliance with the terms in this section regarding securing Employer Confidential Information up to once per year; provided, however, that the security assessments will not apply to any Lincoln affiliates, subsidiaries, and parents or discrete business units of Lincoln that do not receive Employer Confidential Information. Employer may not apportion its security assessments with respect to different subject matters into separate security assessments; however, if Employer has shown good cause for concern regarding the sufficiency of Lincoln's information security program, Employer shall have the right to an additional security assessment to address such concern. If Employer selects a third party to conduct the security assessment, the third party must be agreed to by Employer and Lincoln and must execute a written confidentiality agreement acceptable to Lincoln before conducting such security assessment. The security assessment must be conducted during regular business hours, subject to Lincoln policies, and may not unreasonably interfere with Lincoln activities. Lincoln will reasonably cooperate with Employer on any assessment that Employer conducts in accordance with the provisions of this section. Lincoln is not and will not be obligated to provide to Employer or any independent third party any access or information that Lincoln determines, in its sole discretion, to present undue risk to the confidentiality, integrity, or availability of Lincoln's data, information systems, facilities, or other resources belonging to Lincoln or which Lincoln is otherwise obligated to protect. Employer will provide Lincoln any security assessment reports generated in connection with any security assessment under this section, unless prohibited by law. Employer may use the security assessments only for the purposes of meeting its regulatory audit requirements or confirming compliance with the requirements of this section. The information security assessments are Indian River County BOCC 457(b) INDR-001 1423269 Page 6 of 2094 Confidential Information of the parties under the terms of this Service Agreement. Any information security assessments are at Employer's expense. (b) LRSC Insurance. LRSC will maintain insurance coverage consisting of worker's compensation insurance with statutory limits; commercial general -liability with at least $1,000,000.00 in limits; professional liability insurance with at least $5,000,000.00 in limits; and cyber liability insurance with at least $5,000,000.00 in limits. LRSC shall maintain this insurance, at its own expense, in force and effect throughout the term of this Service Agreement. LRSC shall provide proof of insurance to the Plan Sponsor upon request. 1.14 Reserved. 1.15 Participant Services — Education. Employer authorizes LRSC to provide communications and education to Plan participants and employees of Employer regarding the Plan and their plan accounts, including but not limited to communications about the benefits of participating in the Plan and educational information to assist participants with their accounts. LRSC may also communicate or provide education to participants concerning available distribution options including, but not limited to, the options of staying in the Plan, rolling over to a new plan, rolling over to an individual retirement account or annuity (IRA) and taking a lump sum distribution. Employer acknowledges and agrees that any information relating to investments will be limited to non -fiduciary "investment education" as such term is described in guidance issued by the Employee Benefits Security Administration. In order to provide the education services outlined above, LRSC will provide a total of ten (10) days of Retirement Consultant services annually to be shared in a mutually agreed manner across the applicable Indian River county entities. The fee stated in Section 2.1 includes the fee for such consulting services. Any additional days requested, will be at the rate of $750.00 per day. Employer agrees, notwithstanding Section 1.13, that LRSC may use Plan participant information for the limited purpose of providing services under this Section 1.15. 1.16 Morningstar Services. Morningstar Investment Management, LLC ("Morningstar") makes available advisory services as part of the Program as described below. Morningstar is a registered investment adviser and wholly owned subsidiary of Morningstar, Inc. Morningstar and Lincoln are not affiliated. Morningstar acts as a fiduciary when providing Advisory Services to Plan participants. Lincoln provides ministerial services to administer Morningstar's services, but at no time provides advice or takes discretion of Plan assets or Plan participant accounts. Managed by Morningstar. "Managed by Morningstar" is a discretionary managed account service, an optional service made available to the Plan participants. Employer has decided to make Managed by Morningstar available to Plan participants. Plan participants who choose Managed by Morningstar shall execute a separate binding agreement with Morningstar and shall pay an additional fee for such service as provided below. The charges paid by Employer to Lincoln and Morningstar shall not be affected as a result of Plan participants utilizing the Managed by Morningstar service. Plan participants who choose the Managed by Morningstar service will be deemed to delegate the responsibility for managing their retirement plan account to Morningstar for Indian River County BOCC 457(b) INDR-001 1423269 Page 7 of 2095 an additional annual management fee equivalent to 45 basis points (.45%) of the assets under management in their accounts ("Morningstar Fee"). This fee is divided between Morningstar and LRSC, as follows: Morningstar receives 25 basis points (.25%) for providing its investment advisory and account management services, while LRSC receives 20 basis points (.20%) to administer the Morningstar program. LRSC's 20 basis points administrative fee is in no way related to the services provided by Morningstar. The basis point fee is debited, pro -rata, from the Plan participants' accounts and will be disclosed to the Plan participants on their quarterly participant statement. Employer hereby directs LRSC to direct LFGTC to pay such fee, directs LRSC to reduce the appropriate participants' accounts to reflect the payment of such fee, and directs LRSC to forward Morningstar's investment advisory fee of 25 basis points (.25%) to Morningstar. 1.17 Participant -level Communications. Employer consents to the delivery by electronic means of all participant communications, disclosures etc., required by applicable law and delivered by LRSC on behalf of the Employer, including those communications required by ERISA or the Internal Revenue Code, as applicable, in a manner compliant with applicable laws or regulations relating to electronic delivery. Employer agrees to furnish LRSC with current email addresses for all active and eligible participants, and update such addresses as necessary and furnish updated addresses to LRSC. 1.18 Enrollment Services. LRSC will provide enrollment services for Plan participants to enroll into the Plan, including but not limited to providing paper enrollment forms to Plan participants or providing web access to Plan participants to enroll online. LRSC will not provide investment advice as part of its enrollment services. Employer, at its discretion, may allow for persons unaffiliated with Lincoln to provide enrollment services, provided that such unaffiliated persons or their employer have entered into an agreement with Employer to provide such enrollment services. 1.19 Record Retention. LRSC will maintain documents on matters for which disclosure is required by law for not less than six years after the date such documents should have been filed. 1.20 Mapped Plans. If applicable, Employer agrees to provide Lincoln with documentation of the amount of account values that will be transferred from another vendor and deposited with Lincoln. 1.21 Lincoln Wellness Path Services. Lincoln makes available the Lincoln WellnessPATHO Financial Wellness service ("Wellness Path") as a licensee of the Questis consumer -facing Financial Wellness platform, as part of the Program as described below. Questis and Lincoln are not affiliated. Neither Questis nor Lincoln act as a fiduciary when providing the Wellness Path Services to Plan participants. Wellness Path is an online financial wellness service made available to Plan participants through the Program at no additional cost to the Employer or Plan participants. Employer is responsible for login credentials under its control. Employer will use reasonable measures to ensure that login credentials are used only by individuals authorized to use those credentials and use the web based software application initially made available at https://go.myguestis.com/ together with its documentation, associated offline components and related coaching services to which they relate. Employer will use Indian River County BOCC 457(b) INDR-001 1423269 Page 8 of 2096 Wellness Path only in the manner in which it has been authorized to use it in this Agreement. Employer will notify Lincoln if any authorized individual ceases to be authorized or if Employer becomes aware of any unauthorized access or use by Employer Personnel. Employer warrants that it is the responsible and authorized fiduciary for the above-named Plan for purposes of making Wellness Path available within its Plan. Employer acknowledges that use of the Wellness Path does not guarantee success or a particular outcome. Plan participants will have to execute the End User Agreement in order to access Wellness Path. Notwithstanding anything in this Agreement, to the contrary, as a result of providing Wellness Path, and subject to Plan participant consent or a participant's decision to otherwise share their data, in the tool or with the Plan's broker of record, investment advisor or other authorized financial professional ("Financial Professional"), Lincoln and/or its personnel or the Financial Professional authorized on the Plan, may utilize plan and participant information, including Employee and Plan content or data collected from the Employer and/or Plan participants, to provide the Wellness Path service and for purposes of identifying and making available to the Employer or Plan participants certain investment- and insurance related products and/or services that may be helpful to Plan participants outside of the Plan ("Ancillary Products/Services"). Such Ancillary Products/Services may relate to the reinvestment of the proceeds of a distribution from Employer's Plan. Furthermore, subject to Plan participant consent obtained in the End User Agreement, or otherwise, notwithstanding anything in this Agreement to the contrary, Employer agrees that data derived by Lincoln or Questis from the offering of Wellness Path may be used for the purposes of analysis, including, without limitation, statistical analysis, trend analysis, creation of data models, and creation of statistical rules. The results of such analysis ("De -identified Data") may be used by Lincoln or Questis for internal business purpose, including, without limitation, determining future hardware and communications needs for Questis' systems and determining trends associated with use, operation, and efficacy of Wellness Path. Notwithstanding anything contained in this Agreement, Re- identified Data shall not contain any information that identifies or can be reasonably used to identify an individual person or their financial data. ARTICLE 2 FEES AND EXPENSES 2.1 Fees. Fees for the Recordkeeping Services shall be as set forth in Exhibit C attached hereto. Upon expiration of the Fee Commitment Period, as defined in Section 2.4, LRSC may update the fees set forth in Exhibit C by amending Exhibit C as set forth in Section 4.13. Employer agrees that its agreements with LFGTC will provide for the payment of such fees from Plan assets. In the event Employer terminates this Service Agreement on a non -quarter end date, the fees will be prorated and assessed on the date the assets are distributed from the Program. Indian River County BOCC 457(b) INDR-001 1423269 Page 9 of 2097 In addition to the fees noted above, Plan agrees to pay any increased costs of time and material if Lincoln is required to perform additional services or to meet accelerated or other Employer or Plan deadlines outside the ordinary course of services set forth in this Service Agreement. In addition, Plan agrees to pay Lincoln's increased cost for reprocessing due to errors by Employer or the Plan. In addition, Plan agrees to pay LRSC's actual unusual and extraordinary expenses not included in the fees described above, provided that Lincoln receives Employer's approval before such expense is incurred. In the event that the Investments selected by the Employer to fund its Plan impose a sales load due to the failure of a sufficient dollar amount being invested within a particular Investment within a specified amount of time as agreed to by Lincoln and the issuer of such Investment, the Parties agree that such sales load amounts will be paid by Plan. Employer has reviewed those Investments' prospectuses and additional information to the extent the Employer deems necessary, including provisions in information describing fees and charges that may be imposed if the Employer removes an Investment from the lineup or terminates this Service Agreement or if Plan participants engage in trading in an Investment subject to certain trade limitations (e.g. redemption fees). 2.2 Compensation. Employer directs LRSC to direct the appropriate Lincoln affiliate to pay compensation set forth in Exhibit C to the broker dealer identified in Exhibit C. 2.3 Payment of Plan Expenses. The Plan permits the payment of administrative expenses and other legitimate expenses approved by the Plan from the respective Plan's assets. It is the Employer's obligation to determine whether a particular expense may be paid with Plan assets. The Employer specifically directs LRSC to direct LFGTC to pay the Plan expenses as set forth in this Service Agreement and to make such payments from the Plan only in such amounts and to such persons as specifically directed by the Employer. LRSC will rely on such instructions and makes no representation regarding the legality or appropriateness of the payments. Employer must notify LRSC of any change in the payment amounts or the payee of such amounts. Employer directs that all such expenses charged to the Plan are to be assessed against all the Plan participants' accounts on a prorated basis, except if the Employer specifically identifies an account(s) against which such charges will be made (a "Plan Expense Account" — see below). If there are insufficient assets to cover applicable fees, LRSC will submit a bill to the Plan for the amount owed by the Plan. LRSC is, hereby authorized to direct LFGTC to liquidate any assets of the Plan as is necessary to cover such expenses. a. Establishment of Plan Expense Account. Pursuant to the terms of this Service Agreement, Employer establishes a Plan Expense Account for the Plan. The amounts deposited in the Plan Expense Account may include (1) fees received by LRSC from certain eligible Investments that exceed the LRSC fees set forth in Section 2.1, and (2) other amounts directed by Employer under this Service Agreement. In situations in which the Employer directs LRSC to include the fee for a specified Plan expense in the price charged for establishing the Program, LRSC may deposit amounts to a Plan Expense Account at LFGTC to pay these Plan expenses or for such purposes as determined by the Employer. LFGTC will pay such fees to the appropriate provider as directed by the Employer. To Indian River County BOCC 457(b) INDR-001 1423269 Page 10 of 2098 the extent there are insufficient assets in the Plan Expense Account to cover applicable expenses, LRSC will submit a bill to the Plan for the amount owed by the Plan which shall be due within thirty (30) days after the invoice is received. Employer may pay the invoice or instruct LRSC to deduct charges pro rata from participant accounts calculated as a per head or asset-based fee. b. Funding of Plan Expense Account. Employer instructs LRSC to instruct LFGTC to fund the Plan Expense Account as set forth in Exhibit C. c. Payments from Plan Expense Account. Employer instructs LRSC to instruct LFGTC to pay the Plan expenses set forth in Exhibit C. The Parties hereto acknowledge and agree that LRSC will utilize the resources of Lincoln affiliates in order to calculate the fees payable pursuant to this Service Agreement. 2.4 Fee Commitment. Fees described in this Service Agreement will remain unchanged for the fee commitment period described in Exhibit C ("Fee Commitment Period"), unless (a) there are changes in the Program such that significant numbers of participants or amounts of balances are different or changed from the current structure, including the failure of participants to rollover or map into the Program as projected, (b) changes in the law cause significant changes to the Plan or the ability of LRSC to provide Recordkeeping Services, (c) the Plan is significantly changed by the Employer, including, but not limited to, any change in the Investments listed in Exhibit A, or (d) other changes to the Plan that may affect the pricing of the Plan. In the event any of these changes occur, LRSC may provide notice that the fee commitment provided herein has been revoked and may update the fee by amending Exhibit C as set forth in Section 4.13. Plan agrees to pay any actual incremental expenses that Lincoln incurs on behalf of the Plan or the Employer. 2.5 Transaction Fees. Employer directs LRSC to assess applicable fees set forth in Exhibit C. ARTICLE 3 LIMITATION OF LIABILITY 3.1 In addition to any other remedies at law or in equity available to LRSC for breach of this Service Agreement by Employer, Employer will, except to the extent prohibited by applicable law, indemnify Lincoln, its officers, employees and agents from and against any and all damages, losses, costs, judgments, fines and expenses (including attorneys' fees and disbursements) of any kind or nature (hereinafter in the aggregate the "Losses") imposed on or incurred by Lincoln, its officers, employees and agents by reason of its or their participation in this Service Agreement, including any Losses arising out of any threatened, pending, or completed claim, action, suit, or proceeding, whether civil, criminal, administrative, or investigative, to the extent such Losses are the result of Employer or Plan's intentional wrongdoing or its negligent actions or omissions. As a condition of indemnification, (i) LRSC shall give Employer timely notice in writing of any potential Losses promptly after LRSC becomes aware of them; (ii) Employer shall at its option have sole control of the defense of such Losses; and (iii) LRSC shall cooperate with Employer in the defense of such Losses. Employer shall not be responsible for the Indian River County BOCC 457(b) INDR-001 1423269 Page 11 of 20 99 settlement of any claim, demand or lawsuit related to the Losses without Employer's written consent. 3.2 In addition to any other remedies at law or in equity available to the Employer for breach of this Service Agreement by LRSC, LRSC will indemnify Employer, its officers, employees and agents from and against any Losses imposed on or incurred by Employer, its officers, employees and agents by reason of its or their participation in this Service Agreement, including any Losses arising out of any threatened, pending, or completed claim, action, suit, or proceeding, whether civil, criminal, administrative, or investigative, to the extent such Losses are the result of LRSC's intentional wrongdoing or its negligent actions or omissions. In addition, Lincoln will have no liability with respect to claims of breach of fiduciary duty for (i) the inclusion, exclusion, or deletion of Investments in the Program, (ii) monitoring of such Investments after the Employer's selection of them as an investment option for the Plan, or (iii) providing the Recordkeeping Services. As a condition of indemnification, (i) Employer shall give LRSC timely notice in writing of any potential Losses promptly after Employer becomes aware of them; (ii) LRSC shall, at its option, have sole control of the defense of such Losses; and (iii) Employer shall cooperate with LRSC in the defense of such Losses. LRSC shall not be responsible for the settlement of any claim, demand or lawsuit related to the Losses without LRSC's written consent. ARTICLE 4 GENERAL PROVISIONS 4.1 Governing Law. This Service Agreement, including any attachments hereto, and the Manual and any attachments thereto will be governed by and interpreted under the laws of the State of Indiana without regard to its conflicts of law. 4.2 Entire Agreement. This Service Agreement, including any attachments hereto and the Manual, including any attachments thereto, represent the entire agreement between LRSC and the Employer and is not intended as an agreement between, or to reflect the rights and responsibilities of, any other parties, other than the Parties as defined herein. The Parties have read this Service Agreement, and have had the opportunity to review it with counsel of their choice, and agree to all of the terms of this Service Agreement. To the degree there are any ambiguities, the parties agree that they shall not be construed against the drafter. 4.3 Termination. This Service Agreement will remain in effect until terminated by either LRSC or the Employer upon at least 60 days' written notice to the other; provided, however, that the Party being provided with notice of termination may waive the 60 -day time period and agree to an earlier termination effective date. 4.4 Acknowledgment of Receipt. The Employer acknowledges receipt of the Manual and understands that the services referred to in this Service Agreement and Manual will be provided in accordance with the Service Agreement and Manual, unless LRSC agrees otherwise in writing. 4.5 Notices. Any notices that may be required under this Service Agreement will be in writing and either hand delivered, sent via a nationally recognized overnight delivery Indian River County BOCC 457(b) INDR-001 1423269 Page 12 of 2100 service with proof of delivery or mailed by certified mail, postage prepaid, addressed as follows: If to Employer: County Administrator Indian River County BOCC 1800 2711 St. Vero Beach, FL 32960 Phone: (772) 226-1402 If to LRSC: Officer/Head of Account Management Lincoln Retirement Services Company, LLC P.O. Box 7876 Fort Wayne, IN 46801-7876 Phone: (260) 455-2230 Fax: (260) 455-3710 Either Party may effect changes to the information contained in this Section 4.5 by providing a written notification to the other Party. 4.6 Severability. Should any one or more of the provisions of this Service Agreement, including the Manual, or of any agreement entered into pursuant to this Service Agreement be determined to be invalid or unenforceable, a court will have the power to amend such provision to the extent necessary to make such provision valid and enforceable, and in any event all other provisions of this Service Agreement, including the Manual, and of each other agreement entered into pursuant to this Service Agreement will be given effect separately from the provision or provisions determined to be invalid or unenforceable and will not be affected thereby. 4.7 Headings. The heading of the sections, subsections and paragraphs of this Service Agreement have been inserted for convenience of reference only and do not constitute a part of this Service Agreement. 4.8 Successors and Assigns. All the terms and provisions of this Service Agreement will be binding upon, inure to the benefit of, and be enforceable by the respective successors and permitted assigns of the Parties hereto, whether so expressed or not. This Service Agreement will not be assignable by any Party hereto without the written consent of the other Party, provided that LRSC may assign its obligations and rights to any of its affiliates without consent of Employer. 4.9 Counterparts. This Service Agreement may be executed in one or more counterparts, each of which when so executed will constitute an original and all of which together will constitute one and the same Service Agreement, 4.10 Force Maieure. Neither Party will be liable to the other for any delay or failure in performance caused by acts beyond the nonperforming Party's reasonable control, including, without limitation, acts of God or public enemy, act of any military, civil, or regulatory authority, change in any law or regulation, fire, flood, tornado, earthquake, or storm, or other like event, disruption or outage of communications, power or other utility, labor strikes, or any other cause, whether similar or dissimilar to any of the foregoing, which could have not been prevented by the nonperforming Party with reasonable care. Performance times will be considered extended for a period of time equivalent to the time Indian River County BOCC 457(b) INDR-001 1423269 Page 13 of 2101 lost because of such delay. The Party asserting a force majeure delay will have the obligation to notify the other Party promptly upon learning of the delay or the reasonable possibility of such delay and to use reasonable efforts to mitigate the effects of the delay. 4.11 Number and Gender. Whenever the singular number is used in this Service Agreement, the plural number will apply where required by the context. Whenever the plural number is used in this Service Agreement, the singular number will apply where required by the context. Whenever the male, female or neuter gender is used in this Service Agreement, the other genders will apply where required by the context. 4.12 Waiver. The failure of either Party at any time or times to require performance of any provisions hereof will in no manner affect its right at a later time to enforce such provision and will not act as a waiver thereof. 4.13 Amendment. Subject to the fee commitment in Section 2.4, LRSC reserves the right to amend the Service Agreement and communicate any changes to the Employer in writing with at least 120 calendar days' notice. If the Employer does not notify LRSC of its intent to terminate the Service Agreement pursuant to Section 4.3 above prior to the expiration of the notice period, the change(s) will become effective upon expiration of the notice period. Employer at its discretion may direct LRSC to waive the 120 day notice period. In addition, Employer and LRSC may agree to amend this Service Agreement by mutual written consent. IN atIJNESS WH E F, the Parties hagvp executed this Service Agreement on the �(J , of %-X-, , 20 Z,- (Date) (M nth) (Yr) LINCOLN RETIREMENT SERVICES COMPANY, LLC RalpH Ferraro Its: President Indian River County BOCC 457(b) INDR-001 1423269 Indian River County BOCC By: Its: CoMv Administrator Page 14 of 20 102 EXHIBIT A Fees provided by Investments Some of the Investments or the companies sponsoring the Investments provide fees for distribution and marketing services and shareholder accounting services. The following are such fees provided in Employer's Program. Although such fees are listed at specific amounts, they can change + or — 10 basis points (0.10%) based on LRSC's quarterly account procedures, allocation of expenditures, and provisions in LRSC's agreement with the fund company that manages the assets. These provisions can include different amounts of fees based on assets under management, breakpoints, or other provisions affecting LRSC's relationship with the Investment. Lincoln Life Lincoln Stable Value Z476 Revenue from stable value account: 0.000% on assets annually' Allspring Allspring Special Mid Cap Value Fund - Class R6 (WFPRX); (WellsFargo) Finders fees: 0.00% 12b-1 fees: 0.00% on assets annually Subtransfer agent fees (bps): 0.00% on assets annually Subtransfer agent fees ($): $0 /participant/account/fund/year Supplemental fees: 0.00% on assets annually American Beacon American Beacon Small Cap Value Fund R6 Class (AASRX); Finders fees: 0.00% 12b-1 fees: 0.00% on assets annually Subtransfer agent fees (bps): 0.00% on assets annually Subtransfer agent fees ($): $0 /participant/account/fund/year Supplemental fees: 0.00% on assets annually American Funds American Funds EuroPacific Growth Fund® Class R-6 (RERGX); Finders fees: 0.00% 12b-1 fees: 0.00% on assets annually Subtransfer agent fees (bps): 0.00% on assets annually Subtransfer agent fees ($): $0 /participant/account/fund/year Supplemental fees: 0.00% on assets annually Jackson Square Jackson Square SMID-Cap Growth Fund IS Class (DCGTX); Partners Finders fees: 0.00% 12b-1 fees: 0.00% on assets annually Subtransfer agent fees (bps): 0.00% on assets annually Subtransfer agent fees ($): $0 /participant/account/fund/year Supplemental fees: 0.00% on assets annually I The Lincoln Stable Value Account is a group fixed annuity issued by The Lincoln National Life Insurance Company, and, in New York, Lincoln Life and Annuity Company of New York, and their applicable affiliates (collectively referred to as "Lincoln"). The "revenue" stated for the Lincoln Stable Value Account is for pricing purposes. It is an amount that Lincoln is willing to credit toward part of the cost of services provided by Lincoln. Assets placed in the Stable Value Account are invested by Lincoln. Lincoln pays investors in this account a credited interest rate. The method of crediting interest for the Stable Value Account is based on an external index. Lincoln attempts to invest the assets in the Stable Value Account in financial instruments that pay Lincoln more than the interest Lincoln pays out to investors and other costs incurred by Lincoln. These other costs include the cost of capital required for the interest guarantees, the cost to manage the fund, recordkeeping expenses, and other overhead. The larger the spread is (the lower the credited interest rate), the less income Lincoln needs from other sources, such as an asset charge, to pay for plan services. The credited interest and the resulting spread are negotiated at the time of the sale of the Program to the Plan. If the credited interest rate is set at a higher rate, an asset charge generally will be higher. Conversely, if the credited interest rate is set at a lower rate, the asset charge will generally be lower. Indian River County BOCC 457(b) INDR-001 1423269 Page 15 of 2103 Legg Mason ClearBridge Large Cap Growth Fund Class IS (LSITX), Western Asset Core Bond Fund Class IS (WACSX); Finders fees: 0.00% 12b-1 fees: 0.00% on assets annually Subtransfer agent fees (bps): 0.00% on assets annually Subtransfer agent fees ($): $0 /participant/account/fund/year Supplemental fees: 0.00% on assets annually MFS MFS Value Fund Class R6 (MEIKX); Finders fees: 0.00% 12b-1 fees: 0.00% on assets annually Subtransfer aqent fees (bps): 0.00% on assets annually Subtransfer agent fees ($): $0 /participant/account/fund/year Supplemental fees: 0.00% on assets annually T. Rowe Price T. Rowe Price Growth Stock Fund I Class (PRUFX); Finders fees: 0.00% 12b-1 fees: 0.00% on assets annually Subtransfer agent fees (bps): 0.00% on assets annually Subtransfer agent fees ($): $0 /participant/account/fund/year Supplemental fees: 0.00% on assets annually Vanguard Vanguard 500 Index Fund Admiral Shares (VFIAX), Vanguard Mid -Cap Index Fund Admiral Shares (VIMAX), Vanguard Small -Cap Index Fund Admiral Shares (VSMAX), Vanguard Target Retirement 2020 Fund (VTWNX), Vanguard Target Retirement 2025 Fund (VTTVX), Vanguard Target Retirement 2030 Fund (VTHRX), Vanguard Target Retirement 2035 Fund (VTTHX), Vanguard Target Retirement 2040 Fund (VFORX), Vanguard Target Retirement 2045 Fund (VTIVX), Vanguard Target Retirement 2050 Fund (VFIFX), Vanguard Target Retirement 2055 Fund (VFFVX), Vanguard Target Retirement 2060 Fund (VTTSX), Vanguard Target Retirement 2065 Fund (VLXVX), Vanguard Target Retirement Income Fund (VTINX), Vanguard Total Bond Market Index Fund Admiral Shares (VBTLX), Vanguard Total International Stock Index Fund Admiral Shares (VTIAX), Vanguard Treasury Money Market Fund Investor Shares (VUSXX); Finders fees: 0.00% 12b-1 fees: 0.00% on assets annually Subtransfer agent fees (bps): 0.00% on assets annually Subtransfer agent fees ($): $0 /participant/account/fund/year Supplemental fees: 0.00% on assets annually Indian River County BOCC 457(b) INDR-001 1423269 Page 16 of 2104 EXHIBIT B Indian River County BOCC rheper/onnmrae dtb quobdmpwwtgspestper/am ,*pstpeAamenm does notguMarebe Adure resu9i IMVSW ars returmandpinapelvalue wV#fluctueleso yoursmount balance, when redrorm4 maybe worth more w less Oan ywraVr#W cost Current pedameam maybe Imeerwhdglerthw the perbmanca drta Wv id Insbnmsothighdubla-WmtumserehigWmunWandmnnObesustWmd Investorsshouldbeaware Oatnxumsvaryd ionwketcmxidmm Fmsand expenses reclue to assets s0oeabdto yowimes9nem under thephaM ult nal*Amedng 9a net rub ofasum. Planes obbtn perfomanca deb for His most recant month endby visaing www.Momingatar oom andreOuesOnge quote usiyOa sppropiate ticlwsymboL Fw the cetbmanm of co&%Ove trusts.ptee a odl87763341710. Tow Returns t`rl WorningslarCalegory Ante/ (cross Not lOVrw hdea Mwsisan Expense Expense Since Mutual Fund Name Ticker I6ty Ratio' Ratio' YTD IYr 3 Y 5 Y Inception Inception Date WornlgsW US UlTStade Value GR USD" 0,69 1.40 1.75 1.84 1.69 Lincoln Stable Value AccamY" 7476 0.10 0.10 087 1.75 197 209 216 WoneyMadret OA3 0.04 0.05 044 0.80 0.42 CE BofA ISD 3M Dep OR CM TR USD -001 0.05 080 130 0.86 VwVuwd Tmssury Money Market Investor VU9XX a 0.119 0.09 0.17 0.17 054 1.01 0.57 12VIN1992 %Rak Who Category 0 0 0 0 0 # Funds Ranted in Category 614 594 547 508 472 Intermediate Core Bond 059 -1053 -10,74 -1.00 012 1.47 Bbanberg US Agg Bond TR ISD -10.35 -1029 -0.93 0.88 1.54 Vanguard Total Bond Me" Index Adm VBTLX +++ ODS 0.05 4042 -lam 441 0.84 1.49 11/122001 % Rant Who Category 44 36 40 36 48 # Funds Flanked In Category 456 451 421 396 359 htermediate COIe Bond 059 -1053 -10.74 -100 0.72 1.47 Bloanbag L15 Agg Band TR USD -1035 -1029 -0.93 0.88 154 Weslan Asset Con Bond IS WACSX +++ 043 0.43 -1171 4&70 4.62 0.71 2.05 09202009 %Rank Within Category 99 98 90 56 11 # Funds Rai In Category 456 451 421 396 359 Target -Date Retirement 066 -12.15 -1050 1.70 291 367 Morningstar UlaI m Mod lnann TR USD -1235 -10.02 2.79 3.85 425 Vanguard Teget Retirement Income Fund VTNX ++++ OAS OAS -11.79 -10.14 2.09 331 412 10272003 %Rack Whn Calegay 45 47 33 30 36 It Futle Ranted it Category 168 168 157 141 107 Target -Date 2020 0.64 -1427 -11.95 287 4.16 5.90 Morningstar Lifetree Mod2020 TR USD -16.70 -13.95 275 436 5.81 Vanguard Target Re9rement 2020 Fund VTVVNX ++++ 089 0.06 -1380 41AS &W 404 &51 OSWPA 6 %Rank Who Category 34 38 41 32 24 # Funds Ranted In Category 172 170 165 143 96 Target -Date 2025 0.67 -1525 -1273 328 457 838 Mornngstar Lifetree Mod2025 TR USD - -1774 -14.87 293 466 6.49 Vanguard Teget Retirement 2025 Fund VTTVX ++++ 0.09 0.09 -15,63 -1321 S74 507 7.10 10272003 %Rank Who Category 50 51 42 37 19 # Funds Radwd in Category 231 229 212 190 129 Target -Date 2030 0.68 -1651 -13.62 3.97 520 7.06 Morningstar Liblme Mod2OW TR ISD -1857 -1555 330 5.07 723 Vanguard Target ReEement 2030 Fund VTHRX ++++ O.08 0.06 -1886 -1394 422 S50 7.68 Oswr2m %Rank Who Category 43 47 47 46 25 # Funds Raked In Category 232 230 208 186 133 Target -Date 2035 0.69 -1778 -1456 460 5.73 7.69 Madngstar Lltetiree Mod 2035 TR ISD -19.07 -1592 381 5.52 7.83 Vanguard Target Retirement 2035 Fund VTTHX +++: ODe 0.09 -17.37 -1436 4.80 5.96 ex 10272003 % Rank Whn Category 31 37 48 45 27 # Funds Raked in Category 724 722 206 184 124 Target -Date 2040 0.70 -16.70 -1521 5.06 806 8.10 Morningstar Likime Mod2040 TR ISD -19.40 -16.14 427 5.87 BAB Vanguard Target Retirement 2040 Fund VFORX ++++ 0.08 0.09 -lam -1492 535 642 &74 06r072006 %Rak Within Category 25 32 43 39 21 # Funds Ranked it Category 227 224 208 186 133 Target -Date 2045 0.70 -1929 -15.63 5.40 6.36 8.31 Morningstar Uletree Mod2045 TR ISD -1956 -1628 453 6.03 828 Vanguard Target Reirernent 2045 Fund VT1VX +++• 008 0.09 -111.82 -1529 5.89 &80 8.97 10272003 %Rank Within Category 26 33 2B 30 19 # Funds Ranked h Category 224 222 206 184 123 Target -Date 2050 0.71 -19.63 -15.91 544 6.38 8.38 Morningstar Liletme Mod2650 TR ISD -19.63 -16.40 459 6.04 825 Vanguard Target Retirement 2050 Fund VFIFX ++++ 0.08 0.09 -19.06 -1545 Sol &81 8.97 0SW2006 %Rank Within Category 24 31 26 32 22 # Funds Ranked it Category 226 224 208 186 131 Indian River County BOCC 457(b) INDR-001 1423269 Page 17 of 2105 Target -Date 2055 0.71 vi rringstar Libime Mod2055 TR USD -16.03 Vanguard Target Reirenent 2055 Fund VFFVX +++i %Rank Within Category -16.53 # Funds Ranked In Caagary MOO Target -Date 2060 -15.45 Morningstar Lifeline Mod2060 TR L1SD 1.15 -1520 Vargurd Target Retrement 2060 Fund VTTSX ++*a %Rank Within Category -16.28 !t Funds Ranked In Category 222 Foreign Large Blend 0.71 MSCIACMB Ex USA NR USO -16.04 Verguard Total ing Sink under Adrnral VRAX +++ %Rank Wdnn Category -16.66 # Funds Raked h Category Moe Foreign Large Growth -15.44 MSCIACVA Ex LISA Growth N1 11SD *-Lincoln penkxmanceis sham net of at awestnent management fees and revenue. knriran Funds Eurapedie Growth R6 RERGX +++ %Rank Main Category 164 # F-uds Ranked h Category 223 Large Blend 0.93 Rased 1000 TH USD -18.69 Vrgrwd S60lyde t Admiral VFIAX -1 %Rak Whn Category -19.42 # Funds Raked In Category all Large Value -18.94 Russd 1000 Vane TR USD 32 IFS Value RS HEKX ***1 %Rak YAtin Category 672 # Funs Raked In Category 759 Target -Dam 2065+ 1.05 Morningstar Liblimellod2060 TR LSD -2725 Vrrgre•d TrgetRedirrnrnt2l)[15 Fund VLXVX +++ % Rank Mfihn Category -25-80 Al Fund; Ranked In Category 0.46 Large Growth -27.68 Russel 1000 Growth TR USD 56 Clowil"ge Large Cep Growth l6 LSRX +++ %Rak Ween Category 404 IF ruds Ranked n Category 458 Large Growth a80 Russel 1000 Grower TR USO -11.56 T.Rowe Price Grawh5lockl PR1FX ++ %Rank Within Category -13.04 # Fuhds Raked h Category 0.04 Mid -Cap Blend 40.69 Russel Mid Cap TR USD 20 VmVwd Od Cap Inch Admiral V91AX +++k %Hak Wihn Category 1,192 # Ruda Ranked n Category 1,365 Mid -Cap Value 091 Russel Mid Cap Vale TR LSD -484 ANWng Special led Cep Value R6 WFPRX +++1 %Rak Wihn Category 8.82 # Funds Ranked h Category 0.45 Mid -Cap Growth Fi09 Russel Mid Cap Growth TR USD 60 Jackson Square SIBDCap Growth IS DCGTX + %Rak Wihn Cakgay 1,158 # Fuds Raked h Category, 1238 Russet 2060 TR USD 0.71 -19.77 -16.03 0.0.5 -21.65 -20.75 -1965 -16.53 OAS MOO -19.07 -15.45 Small Value 1.15 -1520 19 30 -17,31 -16.28 224 222 -11.42 0.71 -1979 -16.04 # Funds Ranked h Categary 477 -19.67 -16.66 0.08 Moe -19.07 -15.44 **Rmler Stable Vale index performance is adjusted to irvestrrient management fees and re enue appropriate for yc r specific product *-Lincoln penkxmanceis sham net of at awestnent management fees and revenue. 21 29 199 164 225 223 1.31 0.93 -19.18 -18.69 135 2.50 -18.42 -19.42 0.11 all -1816 -18.94 34 32 33 54 720 672 765 759 1.72 1.05 -27.69 -2725 1.62 3.43 -24.79 -25-80 OAS 0.46 -25.10 -27.68 59 56 32 58 428 404 464 458 914 a80 -19.30 -11.56 10.17 11.00 -20.94 -13.04 0114 0.04 -19.98 40.69 22 20 50 38 126.5 1,192 1,399 1,365 795 091 -11.33 -484 667 7.17 -12.86 8.82 OAS 0.45 -1313 Fi09 57 60 70 50 1,193 1,158 1,258 1238 5.67 0.70 -20.12 -16.46 4.47 5.91 -19.67 -1666 008 moo -19M -1540 50 0 16 20 3B 0 163 152 8.10 0,97 -29.12 -23.86 1258 1429 -28.07 -1877 0.61 0.61 -3190 -2550 77 67 72 67 1,191 1,147 1,260 1264 8.10 0.97 -29.12 -23.86 1258 14.29 -28.07 -18.77 051 0.51 -9680 3111 85 83 90 87 1,191 1,147 12W 1,264 6.70 0.94 -1850 -1390 659 7.96 -21.57 -1730 OAS 0.05 -22.21 -1600 40 24 86 69 379 349 420 411 743 0.98 -13.35 -7.90 670 6.27 -16.23 -10.00 0.70 0.70 -1223 417 25 18 32 15 402 386 413 409 5.04 1.05 -3028 -28.58 425 8.88 -31.00 -2957 092 0.82 41.17 -%17 99 95 95 98 553 531 607 597 Russet 2060 TR USD -23.43 -25.20 Vanguard Small Cap Indy Adm VSMAX ++++ 0.05 0.0.5 -21.65 -20.75 %Rank Within Categary 69 75 # Funds Ranked h Category 613 607 Small Value 1.15 -1520 -12.12 Russet 2000 Vatic TR USD -17,31 -16.28 American Beacon Small Cep Value R6 AASRX ++ M79 0.79 -1528 -11.42 %Rank Wihn Category 49 48 # Funds Ranked h Categary 477 474 • I the performance for an imestrnent option repas a cifierence between the gross expense ratio and net expense ratio, it is do b a contractual waver hat is set to expire witun the next year. 896 01/192012 **Rmler Stable Vale index performance is adjusted to irvestrrient management fees and re enue appropriate for yc r specific product *-Lincoln penkxmanceis sham net of at awestnent management fees and revenue. 1 Indian River County BOCC 457(b) INDR-001 1423269 552 6.46 8.49 4.54 5.99 8.17 5.99 6.00 815 09/182010 32 34 24 206 181 98 5.53 6.49 8.96 4.47 591 8.07 5.60 879 896 01/192012 35 43 1 199 164 1 1.31 2.08 5.11 135 2.50 4.83 260 171 5.17 11/108010 34 32 48 720 672 551 1.72 3.56 6.13 1.62 3.43 571 1A9 3.10 630 05/012009 59 56 34 428 404 330 914 9.77 11.63 10.17 11.00 12.82 1856 11.27 12.92 11 n 32 W 0 22 20 12 126.5 1,192 1,018 795 7.84 1026 667 7.17 1050 7.60 7.55 11.23 05+0181106 57 60 21 1,193 1,158 1,017 5.67 0.00 a00 4.47 5.91 8.07 5.86 0.00 6b7 07112=7 50 0 0 3B 0 - 8.10 1161 1251 1258 1429 14.80 590 1023 13.79 03/158013 77 67 24 1,191 1,147 1,053 8.10 11.01 1251 1258 14.29 14.80 4.36 870 12.52 08128/1015 85 83 55 1,191 1,147 1,053 6.70 6.97 10.07 659 7.96 1129 7.19 828 11A8 11/122601 40 24 14 379 349 284 743 6.41 9.83 670 6.27 10.62 9.03 612 12.35 061282013 25 18 3 402 386 337 5.04 8.69 10.82 425 8.88 11.50 407 616 8.82 MOM= 99 95 93 553 531 490 5.65 5.58 940 4.21 5.17 9.35 5.40 8.88 10.45 11138000 59 25 20 591 572 470 7.63 5.36 8.93 6.16 4.89 9.05 691 4.95 852 022M17 52 54 36 453 439 404 Page 18 of 2406 EXHIBIT C Indian River County BOCC Deferred Compensation Plan for Public Employees 457 Governmental Plan and Trust Recordkeeping Services Fee Type Annual Fee Amount Quarterly Fee Amount Asset based 0.1300% 0.0325% Fee Detail The fees for Recordkeeping Services described above will be calculated quarterly based on the averages of the opening and closing balances of each calendar quarter. Upon completing the calculation at the annualized rate, LRSC will divide by 4 to arrive at the fee for the current quarter. To the extent there is revenue earned on Investments in the Program for the Plan, LRSC will offset the Recordkeeping Services Fee by such revenue. A description of revenue received by LRSC is described in Exhibit A. If such revenue exceeds the fee the excess shall be placed in a plan expense account, see Section 2.3. If such revenue is insufficient to offset the fee completely, the Plan shall pay the remaining balance due pro rata from participant accounts. LRSC is, hereby authorized to direct LFGTC to liquidate any assets of the Plan as is necessary to cover such expenses. Plan Expense Annual Annual Cap or Max. Invoiced or Automatic Account Funding Excess N/A N/A Revenue Plan Expense Account Funding Detail LRSC will fund the Plan Expense Account, quarterly in arrears, with any excess revenue after LRSC's fees are paid as described in Section 2.1 and after any other obligation to pay expenses, fees or compensation described above. As authorized by Employer, the Plan Expense Account will be invested in an investment that has an investment objective of capital preservation and liquidity. The Employer hereby agrees that if included as an investment option under the Plan, such investment shall be a group fixed annuity or stable value investment issued by an affiliate of Lincoln. If Employer chooses not to include such investment issued by an affiliate of Lincoln, then the Plan Expense Account will be invested in such other investment option as designated by the Employer. Indian River County BOCC 457(b) INDR-001 1423269 Page 19 of 2107 Transaction Fee Amount per transaction Loan fee $75.00 loan initiation; $25.00 ongoing annually Distribution fee (excluding Beneficiary Payment; Disability Withdrawal and RMD) $40.00 Hardship fee N/A In-service withdrawal fee (excluding Unforeseeable Emergency) $25.00 Installment Payments $25.00 setup; $2.00 monthly ODRO fee $500.00 Transaction Fee Detail LRSC shall have the right to deduct the participant level transaction fees referenced above. Unless otherwise specified, the Employer directs that all withdrawals will be assessed against participant Plan accounts and will be prorated across all investment options and sources. Fee Commitment The Fee Commitment Period will be a period of 5 years beginning as of the effective date of September 29, 2022, subject to the limits and restrictions set forth in Section 2.4. Indian River County BOCC 457(b) INDR-001 1423269 Page 20 of 2108 INVESTMENT ADVISORY SERVICES AGREEMENT This Investment Advisory Agreement ("Agreement') is made and entered into as ofthe date this Agreement is executed by the parties ("Execution Date'), by and between Morningstar Investment Management LLC, a Delaware limited liability company ("Morningstar'), and the plan sponsor ("Plan Sponsor') the named fiduciary and sponsor of the Plan identified on Exhibit (the `Plan'). BACKGROUND The Plan Sponsor is a named fiduciary with respect to the Plan with the authority under the Plan to obtain certain investment advisory services. Plan Sponsor has elected to offer the Advisory Services to Plan participants. Plan Sponsor has entered into a separate written agreement with its financial service provider ("Service Provider") to provide daily valuation, recordkeeping and other administrative services to the Plan, including access to Morningstar's investment Advisory Services, if Plan Sponsor so elects. The Plan Sponsor has determined that it is in the best interests of the Plan and the Participants and their Beneficiaries (both as defined in Exhibit A) to retain Morningstar to provide the Advisory Services (as defined below and further in Exhibit A), including but not limited to providing investment Advisory Services by and through proprietary software and technology that processes demographic and financial information about Participants and identifies model portfolios comprised of various asset classes in weights that correspond to various risk profiles of individuals. Use of the Advisory Services, as directed by the Participants and their Beneficiaries, shall be effective after the execution of this Agreement and upon the delivery of all necessary information from Service Provider to Morningstar (the "Effective Date"). Morningstar is willing to perform such investment Advisory Services as a fiduciary to the Plan as provided under the terms of this Agreement. Non -ERISA July 2021 Based on the foregoing, Plan Sponsor, on behalf of the Plan, and Morningstar agree as follows: AGREEMENT 1. SERVICES AND PAYMENT 1.1 Description of Advisory Services. Morningstar agrees to provide the Plan with the Advisory Services. "Advisory Services" shall mean individually or collectively the Managed Account Services and the Investment Advice Services (each as described below in Exhibit A) and, provided, however, that the Plan and Participants shall only be eligible to choose from those Advisory Services specifically selected by Plan Sponsor. The Advisory Services specifically exclude analysis of or advice regarding the potential local, state or federal tax consequences resulting from any investment advice or recommendation provided by Morningstar. 1.2 Fees. In consideration for the Managed Account Services, the Plan will pay to Morningstar the fees set forth on Exhibit B. 1.3 Invoicing and Payment. Plan Sponsor agrees to direct the Service Provider to collect all applicable fees from each Participant's Plan account and to remit such fees to Morningstar. The parties agree and acknowledge that Service Provider shall deduct monthly and remit the applicable fees in monthly installments in arrears beginning at the end of the month in which the fees were earned by Morningstar. 2. TERM AND TERMINATION 2.1 Term. Subject to Section 2.2, the Agreement shall commence on the Effective Date and continue in effect for a term of one (1) year from the Effective Date. The Agreement shall automatically be renewed for additional one (1) year periods, unless a party delivers to the other parties a written notice of non -renewal at least thirty (30) days prior to the date such renewal would take effect (each one (1) year period is a "Term" 109 2.2 Termination by Plan Sponsor or Morningstar. Plan Sponsor or Morningstar may terminate this Agreement upon thirty (30) days prior written notice to the other parties for any reason or no reason; provided however, that Plan Sponsor shall continue to pay fees in accordance with Exhibit B for Managed Account Services rendered, prior to termination. 2.3 Effect of Termination. Upon expiration or termination of this Agreement for any reason, all rights granted to Plan Sponsor hereunder shall terminate immediately and all Participants shall no longer have access to the Advisory Services. Expiration or termination of this Agreement for any reason shall not affect the Plan's obligation to pay any and all fees and other amounts due and payable under this Agreement or relieve the Plan or Plan Sponsor of any liability for breach of this Agreement. 3. USE OF DATA AND CONFIDENTIALITY 3.1 Plan Data. All information communicated to Morningstar, whether before or after the Effective Date, by the Plan, Plan Sponsor, or the Service Provider, in connection with this Agreement, that relates to the Plan, the Plan's investments, or Plan Sponsor, Plan Sponsor's employees, former employees, Participants or Beneficiaries ("Plan Data"), will be held by Morningstar in confidence and used only for purposes of performing their Services under this Agreement in accordance with this Agreement or as disclosed in Morningstar's privacy policy. Plan Data will remain the property of the respective Plan or of the Plan Sponsor, as the case may be. Morningstar will maintain physical, electronic and procedural safeguards to avoid disclosing Plan Data to third parties, to at least the same degree as it employs to avoid unauthorized disclosure or publication of its own information or information of other customers, and in no event less than industry - standard safeguards. 2 Non -ERISA July 2021 3.2 Exceptions. Notwithstanding Section 3. 1, Morningstar may disclose Plan Data to those of their employees involved in providing the Advisory Services, but only to the extent reasonably necessary to perform the Advisory Services under this Agreement or as disclosed in Morningstar's privacy policy. Morningstar may disclose Plan Data to the extent required to satisfy any valid subpoena, court order, litigation or regulatory request, or other legal requirement of competent governmental authority, provided that immediately following receipt of such request or making a determination that disclosure is legally required. 3.3 Ownership. Notwithstanding the rights granted under this Agreement, Plan Sponsor acknowledges and agrees that Morningstar or its affiliates retain sole and exclusive ownership over all data, analyses, opinions, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information or other information provided by Morningstar ("Morningstar Intellectual Property"). Nothing contained herein transfers to Plan Sponsor or the Plan any ownership interest in the Morningstar Intellectual Property and any software, pictures, images, materials, changes, or other works of authorship provided contained in the Morningstar Intellectual Property. Plan Sponsor and the Plan have no right to make derivative works of the Morningstar Intellectual Property in any form for use in any medium currently in existence or under development, now or in the future. 3.4 Use and Promotion. Plan Sponsor agrees that the Advisory Services shall be made available only to retirement plans duly established under the laws of the United States of America and to Participants that are citizens and/or legal residents of United States of America or its territories. The Advisory Services, or any portion thereof, may be used by Plan Sponsor and its Participants only for effecting retirement planning for 110 Participants that elect to receive the Advisory Services. Any other use by the Plan Sponsor or the Plan, including commercial use for the benefit of another person, is prohibited under this Agreement and shall be a material breach of this Agreement. Plan Sponsor agrees to cooperate and provide reasonable assistance to Morningstar in connection with preventing and stopping any unauthorized use, of the data, analyses, opinions and other information contained in the Advisory Services. Approval of Promotion. Plan Sponsor may not mention or refer to Morningstar or the Advisory Services in any correspondence, public announcements, advertising, marketing or promotional materials, or events (collectively, the "Promotion Material") without Morningstar's prior written approval. Plan Sponsor shall incorporate appropriate notice, attribution and disclaimer language into the Promotion Material, as Morningstar may specify in its review of the Promotion Material. Plan Sponsor shall have a limited license to use the Morningstar name, trademarks, service marks (the "Morningstar Marks") identified herein but, in each instance, only in the manner and format specified by Morningstar in writing in advance. The Morningstar Marks include: Morningstar® M)BNIX89AR, Any Promotion Material using the Morningstar name or the Morningstar Marks shall include the following disclosure, plus any additional disclosures as indicated by Morningstar during its review: "The Morningstar name and trademarks are used, under license, from Morningstar Investment Management LLC. Morningstar Investment Management LLC is a registered investment adviser and subsidiary of Morningstar, Inc. Non -ERISA July 2021 Morningstar Investment Management LLC is not affiliated with Plan Sponsor." Morningstar has the authority to communicate to Participants the features of the Advisory Services electronically (online or via email) or through direct mail, may utilize Plan Data for this purpose and may require the Plan Sponsor to provide Plan Data necessary to make these communications. Confidentiality. The parries acknowledge that in the course of their dealings hereunder, each may acquire information about the other, its business activities and operations, its technical information and its trade secrets, all of which are proprietary and confidential, but not including Plan Data (the treatment of which is governed by Sections 3.1-3.2 above) (the "Confidential Information"). Each party hereby agrees that: (a) all Confidential Information (including, but not limited to the terms of this Agreement) remains the exclusive property of the disclosing party; (b) it shall maintain, and shall use prudent methods to cause its employees and agents to maintain (and not to otherwise copy, publish, disclose or use other than as contemplated under this Agreement), the confidentiality and secrecy of the disclosing party's Confidential Information; and (c) subject to any regulatory or internal document retention policies, it shall return or destroy all copies of the disclosing party's Confidential Information upon request of the disclosing party. Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it: (i) is or becomes a part of the public domain through no act or omission on the part of the receiving party; (ii) is disclosed to third parties by the disclosing party without restriction on such third parties; (iii) is in the receiving party's possession, without actual or constructive knowledge of an obligation of confidentiality with respect thereto, at or prior to the time of disclosure under this Agreement; (iv) is independently developed by the receiving party without reference to the disclosing party's Confidential Information; (v) is released from confidential treatment by written consent of the 111 disclosing party; or (vi) is required to be disclosed by a court of competent jurisdiction. 4. REPRESENTATIONS AND WARRANTIES. 4.1 Representations of Morningstar. Morningstar represents and warrants to Plan Sponsor that it is an investment adviser registered with the Securities and Exchange Commission under the Investment Advisers Act of 1940, as amended and, to Morningstar's knowledge (a) it has all rights in and to all the Morningstar Intellectual Property necessary to market, distribute the Advisory Services in accordance with the terms of this Agreement; (b) this Agreement is binding on Morningstar; and (c) Morningstar's entry into this Agreement does not violate any prior obligation or agreement of Morningstar. Morningstar represents and warrants to Plan Sponsor that the Managed Account Services will (a) apply generally accepted investment theories; (b) be diversified to minimize risk of large losses due to asset class concentration; (c) be designed to provide varying degrees of long-term appreciation and capital preservation through a mix of equity and fixed income based on participant's age, retirement date or life expectancy; and (d) change the asset allocation and associated risk levels over time to become more conservative with increasing age. 4.2. Representations of Plan Sponsor. Plan Sponsor represents and warrants to Morningstar that (a) Plan Sponsor has the authority and power to enter into and comply with its obligations under this Agreement and the rights and licenses necessary to enter into and perform its obligations under this Agreement; (b) this Agreement is binding on Plan Sponsor and the Plan; (c) Plan Sponsor's entry into this Agreement does not violate any prior obligation or agreement of Plan Sponsor or the Plan; (d) the individual signing this Agreement and any Exhibits thereto on behalf of Plan Sponsor is a named fiduciary of Plan or is authorized to sign on behalf of the Plan 4 Non -ERISA July 2021 Sponsor in its capacity as a named fiduciary of Plan and is authorized to sign on behalf of the Plan Sponsor in its corporate capacity; (e) consistent with the terms and conditions contained in all governing documents of Plan Sponsor's Plan with respect to the voting of proxies, Plan Sponsor, the Plan's trustee or such other person designated by the Plan will vote proxies for securities held in any investment account for which Morningstar may provide advice hereunder, and that Morningstar shall have no responsibility or liability for proxy voting, (f) Plan Sponsor has reviewed the fees and expenses that will be paid to Morningstar, described in Exhibit B, and have determined that such fees and expenses are reasonable, and (g) the instruments under which the Plan is maintained authorize the Plan to pay any fees for which the Plan is responsible as provided in this Agreement. 5. DISCLAIMERS: 5.1 Data Disclaimer. Morningstar will use commercially reasonable efforts to ensure that the data, analysis, opinion, and other information contained in the Advisory Services are correct. Although gathered from sources believed to be reliable, Plan Sponsor acknowledges that Morningstar cannot guarantee the accuracy of the data or information used to provide the Advisory Services. The completeness and timeliness of all data and information used to provide the Advisory Services is dependent upon the sources of such data and information, which are outside of Morningstar's control. 5.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH HEREIN, MORNINGSTAR PROVIDES NO WARRANTIES, EITHER EXPRESS, IMPLIED OR OTHERWISE WITH RESPECT TO THE ADVISORY SERVICES DELIVERED PURSUANT TO THIS AGREEMENT, OR THE SOFTWARE COMPRISING THE ADVISORY SERVICES, AND TO THE EXTENT PERMITTED BY LAW, MORNINGSTAR DISCLAIMS THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE 112 AND MERCHANTABILITY WITH RESPECT TO SUCH SERVICES. MORNINGSTAR DOES NOT GUARANTEE THAT THE ADVISORY SERVICES WILL BE DELIVERED WITHOUT INTERRUPTION, TIMELY, ERROR -FREE, OR SECURE. ERRORS MAY OCCUR IN SOFTWARE - BASED SERVICES AS A RESULT OF PROGRAMMING ERRORS, DATABASE ERRORS, OR OTHER CAUSES. 5.3 Acknowledgement of Limitations on Recommendations. Plan Sponsor acknowledges and agrees that in providing the Advisory Services, Morningstar will only consider the Designated Investment Alternatives (as defined in Exhibit A) offered by the Plan, and that Morningstar shall have no obligation to consider or recommend investment options that are not Designated Investment Alternatives of the Plan. 6. LIMITATION OF LIABILITY: The following Limitations of Liability shall be applicable: 6.1 Limitation of Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR LOST PROFITS, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE BASIS OF THE CLAIM. THE FEDERAL SECURITIES LAWS IMPOSE LIABILITIES UNDER CERTAIN CIRCUMSTANCES ON PERSONS WHO ACT IN GOOD FAITH, AND THEREFORE NOTHING HEREIN SHALL IN ANY WAY CONSTITUTE A WAIVER OR LIMITATION OF ANY RIGHTS WHICH THE UNDERSIGNED MAY HAVE UNDER ANY FEDERAL SECURITIES LAWS. 6.2 Plan Sponsor's Rights Under Securities Laws. Nothing in this Agreement is intended to or shall waive any rights to which Plan Sponsor is specifically entitled under the 5- Non -ERISA July 2021 securities laws of the United States or any state, as applicable.. 7. INDEMNIFICATION 7.1 Indemnification by Morningstar. Morningstar agrees to indemnify, defend and hold harmless the Plan Sponsor and its successors and assigns, directors, officers and employees, from and against any and all third party claims, demands, suits, actions, and any and all damages, losses, liabilities, taxes, penalties, fines, charges costs and expenses, including reasonable attorneys' fees, (individually a "Loss" and collectively "Losses") arising from Morningstar's breach of the fiduciary duty imposed pursuant to this Agreement. Morningstar's indemnification obligation shall not apply to any Loss or Losses arising out of or relating to a Loss due to any of the following: (i) the financial performance of any investment option included in the Plan; (ii) any violation of applicable law, rules, or regulations, or the terms of the Plan by a party other than Morningstar in connection with such investment option; (iii) the fault or negligence of, or violation of applicable law, rules or regulations, or the terms of the Plan, by Plan Sponsor or (iv) the delivery or transmission by the Service Provider, the Plan Sponsor or the Participant of incorrect, inaccurate, or incomplete Plan Data. Plan Sponsor shall provide prompt written notice of any claim, action, or proceeding giving rise to such obligation, shall reasonably cooperate with its defense and/or settlement efforts and shall grant Morningstar at Morningstar's option, sole control of the defense and/or settlement of such claim, action, or proceeding. 7.2 Indemnification by Plan Sponsor. Plan Sponsor agrees to indemnify, defend and hold harmless Morningstar, and its successors and assigns, and its and their directors, officers and employees, from and against any Loss or Losses arising from Morningstar performance of services to the Plan. Plan Sponsor's indemnification obligation shall not apply to any Loss or Losses arising out of or relating to a Loss 113 due to any of the following: (i) Morningstar's fraud or willful misconduct; or (ii) any act or omission for which Morningstar would be required to indemnify the Plan Sponsor, pursuant to Sections 7.1 above (as the case may be). Morningstar shall provide prompt written notice of any claim, action, or proceeding giving rise to such obligation, shall reasonably cooperate with its defense and/or settlement efforts and shall grant Plan Sponsor at Plan Sponsor's option, sole control of the defense and/or settlement of such claim, action, or proceeding. 8. ENHANCEMENTS AND MODIFICATIONS: Morningstar reserves the right in their respective discretion to enhance, modify, or provide upgrades (collectively "Changes") of the Advisory Services from time to time. Morningstar shall notify Service Provider of any Changes, who shall notify Plan Sponsor. 9. GENERAL 9.1 Form ADV. Morningstar is registered as an investment adviser under applicable federal or state law, or is otherwise exempt, and will promptly advise Plan Sponsor if at any time it is not so registered. Part 2A and 2B of Morningstar's Form ADV, Morningstar's registration document, contains additional information regarding Morningstar and its services. Plan Sponsor acknowledges that it has received a copy of Morningstar's Form ADV Part 2A and 2B (and, in the future, during the any Parts of the Form ADV that are required to be acknowledged and received during the Term of this Agreement). 9.2 Captions Not Determinative. Titles and paragraph headings herein are for convenient reference only and are not part of this Agreement. 9.3 No Partnership. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties to this Agreement. 6 Non -ERISA July 2021 9.4 Force Majeure. No party shall be in default or otherwise liable for any delay in or failure of its performance under this Agreement where such delay or failure arises by reason of any act of God, or any government or any governmental body, acts of the common enemy, the elements, strikes or labor disputes, or other similar or dissimilar cause beyond the control of such party. If a party is prevented from, or delayed in, performing any of its obligations under this Agreement, it will promptly notify the other parties, describing in reasonable detail circumstances causing the force majeure event, and the obligations which are thereby delayed or prevented, and will continue to use commercially reasonable efforts to recommence performance as soon as reasonably practicable. 9.5 Notice. All notices, including notices of address changes, required to be sent hereunder shall be in writing and shall be deemed to have been given when delivered electronically or by nationally recognized overnight courier or registered or certified mail, postage prepaid to the appropriate address below: If to Morningstar: Morningstar Investment Management LLC 22 W. Washington Street Chicago, Illinois 60602 Attn: General Counsel If to Plan Sponsor: To the address and individual identified in Exhibit A, or their successors. 9.6 No Third Party Beneficiaries. Nothing contained in this Agreement is intended or will be construed to confer upon any person not a party to this Agreement (other than the Plan, a person entitled to indemnification pursuant to the terms of the Agreement, and Participants or Beneficiaries, to the extent of rights expressly extended to them under this Agreement) any rights, benefits or remedies of any kind or 114 character whatsoever, and no such person will be deemed a third -party beneficiary under or by reason of this Agreement. 9.7 Severability. In the event that any provision of this Agreement is held invalid by a court with jurisdiction over the parties, such provision shall be deemed to be restated to be enforceable, in a manner which reflects, as nearly as possible, the intent and economic effect of the invalid provision in accordance with applicable law. The remainder of this Agreement shall remain in full force and effect. 9.8 Waiver. The waiver by any party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. 9.9 Modification. No representation or promise hereafter made, nor any modification or amendment of this Agreement shall be binding unless in writing and both parties have consented thereto, provided further, that such consent may be granted through a negative consent process. 9.10 Counterparts. This Agreement and any written modification hereof may be (a) executed in one or more counterparts, each of which shall be deemed an original, but which together shall constitute one and the same document; and (b) executed by facsimile signature by any party hereto and such signature shall be deemed binding for all purposes hereof, without delivery of an original signature being thereafter required. 9.11 Assignment. None of the parries may assign this Agreement or any of the rights or obligations granted hereunder without the other parries' prior written consent. 9.12 Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, and the Investment Advisers Act of 1940 or any rule, regulation or order promulgated thereunder, without reference to its conflicts of law principles. Z Non -ERISA July 2021 9.13 Survival. Termination or cancellation of this Agreement for any reason shall not relieve either party of obligations that accrued prior to termination or cancellation, or of obligations that by their nature are intended to survive this Agreement, including but not limited to obligations in connection with warranties, confidential information and indemnification. 9.14 Authority. The person signing this Agreement on behalf of each party has been properly authorized and empowered to enter into this Agreement. 9.15 Entire Agreement. This Agreement and the Exhibit(s) constitute the complete agreement between the parties and supersede all previous or contemporaneous agreements, proposals, understandings, and representations, written or oral, with respect to the subject matter addressed herein, other than the disclosures made in Morningstar's Form ADV Part 2A and 2B. Recitals included at the beginning of this Agreement are hereby incorporated into this Agreement by this reference thereto. 115 IN WITNESS WHEREOF, the parties have entered into this Agreement, and intend to be legally bound by it, as of the Execution Date. Plan Sp B 7 on r �, Y• j &�-- Name: Jas4 B wn Title: County Administrator Date: Morningstar Investment Management LLC 1-7 By: Name: Brock Johnson Title: President Date: Non -ERISA July 2021 116 EXHIBIT A TO INVESTMENT ADVISORY SERVICES AGREEMENT Description of Services and Responsibilities Name of Plan: Indian River County BOCC Deferred Compensation Plan for Public Employees 457 Governmental Plan and Trust Name of Plan Sponsor: Indian River County BOCC Address of Plan Sponsor: 1800 27`h St., Vero Beach, FL 32960 Contact Person(s): Jason Brown Contact Person(s) Phone Number and Email Address: I. DEFINITIONS The following definitions shall apply to this Agreement and to any Exhibit attached hereto: • Beneficiaries means any person or entity the Participant chooses to receive the benefits of the retirement account after he or she dies. • Designated Investment Alternatives means any investment alternative designated by the Plan Sponsor into which Participants may direct the investments of assets held in, or contributed to, their individual accounts. Designated Investment Alternatives shall exclude self-directed brokerage accounts, mutual fund windows, or other similar investment vehicles. • Investment Advice Services means making point -in -time recommendations regarding the investment allocation of the assets in a Participant's Plan account. Investment Advice Services shall be made available to the Participants through Morningstar® Retirement Managers' specifically selected by Plan Sponsor pursuant to this Agreement and any Exhibits hereto. • Plan Portfolios are portfolios comprised of Designated Investment Alternatives based on predetermined equity targets, complying with Qualified Default Investment Alternative regulations set forth under 29 C.F.R § 2550.404c-5 ("QDIA'). • Managed Account Services means a discretionary investment advisory service offered to the Plan and its Participants by Morningstar, as further described herein. • Morningstar® Retirement Managers' means the proprietary web -based application that is primarily focused on providing Advisory Services. Morningstar will provide Advisory Services by and through Morningstar® Retirement Managers' in its standard design with current supported plan types and functionality and any subsequent global modifications, enhancements, or upgrades. • Participant means an individual who is enrolled or is eligible to enroll in the Plan and whose Plan Sponsor elected to offer the Advisory Services. • Reallocate means the process whereby Morningstar will send transactional instructions to Service Provider for buying and selling Designated Investment Alternatives in order to assign a Plan Portfolio to a Participant based on the ongoing consideration of Plan Data in the Managed Account Service. Non -ERISA July 2021 117 II. ACCESS, TECHNICAL REQUIREMENTS AND SPECIFICATIONS a. Method of Access: Morningstar shall provide Plan Sponsor's Participants with access to Morningstar® Retirement Manager' via the Internet through an HTTPS connection, which connection shall be established and maintained by Service Provider for Plan Sponsor's benefit. Participants shall access Morningstar® Retirement Managers'' from the Service Provider's website, which will provide a link to a web site designated and maintained by Morningstar. b. Technical Requirements: Browsers (Latest version of the following browsers plus one previous version): x Microsoft® Edge x Google Chrome x Apple Safari x Mozilla Firefox X Morningstar reserves the right not to immediately support new browser versions. x Morningstar reserves the right to change the above referenced technical requirements as certain browser versions become obsolete or outdated or as new versions are released. System Requirements: x Windows® x Mac® OS x JavaScript and Cookies must be enabled x Adobe Acrobat Reader Security: X 128 -bit encryption Pop -ups: X In order to view certain pages in the Morningstar® Retirement ManagersM site, pop -ups must be enabled. III. STANDARD OF CARE During the term of this Agreement, Morningstar will perform the Advisory Services under this Agreement in good faith, solely in the interest of the participants and with the degree of diligence, care and skill that a prudent person rendering similar services as an investment adviser would exercise under similar circumstances. The provisions of this Agreement shall not be interpreted to imply any other obligation on the part of Morningstar to observe any other standard of care, provided, however, to the extent provision of the Advisory Services makes Morningstar a fiduciary. Morningstar shall not be liable for the acts or omissions of any other fiduciary to the Plan, including, but not limited to, any acts or omissions of the Plan Sponsor. IV. MORNINGSTAR OBLIGATIONS Morningstar shall: Non -ERISA July 2021 118 i) With respect to the Managed Account Services, act as fiduciary and investment manager, to the Plan and its Participants; ii) With respect to Investment Advice Services, act as fiduciary; iii) Establish or confirm connectivity with Service Provider necessary to receive and deliver Plan Data and implement Participant transactions in connection with the Advisory Services; iv) Collect and process Plan Data as is reasonably necessary to provide the Advisory Services; v) Collect and process data and information on the Designated Investment Alternatives; vi) Construct and monitor the Plan Portfolios; vii) Assign Participants to Plan Portfolios based upon Plan Data and instruct the Service Provider to make necessary trades in accordance with the assigned Plan Portfolios; viii) Reallocate Participants who enroll in the Managed Account Service on an ongoing basis, but no less frequently than quarterly; and ix) Communicate with Plan Sponsor with respect to any matters arising its duties or obligations. V. PLAN SPONSOR OBLIGATIONS AND ACKNOWLEDGEMENTS i) Plan Sponsor, in its capacity as named fiduciary of the Plan, hereby appoints Morningstar and as "investment manager" to the Plan, with respect to any Participant who has an account within the Plan, and has elected to enroll in the Managed Account Services. Plan Sponsor agrees and acknowledges that the powers of Morningstar to manage, acquire or dispose of any Plan asset shall pertain only to its respective duties and obligations described herein. ii) Plan Sponsor agrees to provide or cause Service Provider to provide accurate and timely Plan Data and understands that Morningstar will rely on such Plan Data to provide the Advisory Services. Morningstar shall not have any liability for Service Provider's or Plan Sponsor's failure to timely inform Morningstar Service Provider, as applicable, of any changes to the Plan Data. Therefore: a. Plan Sponsor shall or shall cause Service Provider to provide all necessary Participant census data and updates as requested by Morningstar or Service Provider in order for Morningstar to provide the Advisory Services described in this Agreement; b. Plan Sponsor shall or shall cause Service Provider to provide Plan information and rules to Morningstar or Service Provider that are necessary for set-up services and promptly notify Morningstar or Service Provider with any updates to this information if changes are made; and Non -ERISA July 2021 119 c. Plan Sponsor or its authorized designee shall select the Plan's Designated Investment Alternatives, and promptly notify Service Provider of any changes to Plan's Designated Investment Alternatives or transaction rules. iii) All funds eligible for use within the Participant Portfolios are selected by Plan Sponsors at their sole discretion. The initial list of Designated Investment Alternatives must be provided (or have previously been provided) to Morningstar, either by the Service Provider or Plan Sponsor, no later than twelve (12) weeks prior to the launch of the Advisory Services ("Initial Delivery Date") so that Morningstar may analyze the Designated Investment Alternatives. Plan Sponsor agrees and acknowledges that any funds not included in the list of Designated Investment Alternatives shall not be included in the Advisory Services. If, after the Initial Delivery Date, Plan Sponsor intends to add funds to the list of Designated Investment Alternatives, it shall cause Service Provider to give Morningstar advance notice of such added funds, up to forty-five (45) days' notice if administratively possible, which notice shall include the name of the fund, the fund type (i.e. open-end fund or custom fund) and the fund identifier, such as the ticker symbol, cusip, or external fund identification number, as may be applicable. Plan Sponsor acknowledges that all funds within the list of Designated Investment Alternatives must be covered in Morningstar Inc.'s database in order for such Plan's Participants to receive the Advisory Services. The Investment Advice Services do not monitor, review or update suggestions or projections on an ongoing basis. Participants are solely responsible for reviewing and updating their individual financial information and for tracking their account(s) and the market to be aware of any changes in the value of their account. Plan Sponsor can elect either the Managed Account Services or the Investment Advice Services or can elect to have both the Managed Account Services and the Investment Advice Services. The election will be indicated by checking the appropriate box(es) below: ® Managed Accounts Services ❑ Investment Advice Services VI. Treatment of Company Stock: Morningstar shall have no duty to provide Advisory Services with respect to securities issued by a Plan Sponsor ("Company Stock") that cannot be sold in the ordinary course of business due to a Plan provision or instruction from the Plan Sponsor ("Restricted Company Stock"). Restricted Company Stock shall not be included within a Plan Portfolio and Morningstar shall have no liability for any loss or unrealized gain arising from such Restricted Company Stock. If the Participant's account includes securities issued by the Plan Sponsor that are freely marketable without restrictions ("Non -Restricted Company Stock"), a Participant may Non -ERISA July 2021 120 retain some or all of the Participant's Non -Restricted Company Stock, or the Participant may direct Morningstar to sell the Non -Restricted Company Stock according to a methodology determined by Morningstar. If a Participant directs Morningstar to sell Non - Restricted Company Stock, Morningstar will send a transaction instructing the Provider to sell 25% the Participant's Non -Restricted Company Stock upon the Participant completing a web session or upon Morningstar's quarterly review of the Participant's account. All of the Participant's Non -Restricted Company Stock will be sold if the Non -Restricted Company Stock balance reaches $3,000 or 3% of the Participant's account balance, or if directed to do so by the Participant. Morningstar's methodology will also result in the sale of any future contributions of Non -Restricted Company Stock that are allocated automatically to the Participant's account(s). Participant has the ability to instead restrict the sale of their Non -Restricted Company Stock. VII. Brokerage Windows Participants may receive the Advisory Services if Participants are partially invested within their respective Plan in a self-directed brokerage account, mutual fund window, or other similar investment vehicles (collectively "Brokerage Windows") that cannot feasibly be administered in a managed account. However, Morningstar will only have discretion over that portion of the Participant's Plan account balance invested outside of the Brokerage Window. Plan Sponsor and Morningstar will jointly ensure that this limitation is communicated to the Participant. Morningstar shall address this limitation in any written materials discussing the Advisory Services and Plan Sponsor shall ensure that such written materials are provided to Participants, as necessary. VIII. Source Restrictions Plans that have source restrictions where different investment options are assigned for different money sources cannot be used in conjunction with the Advisory Services. Non -ERISA July 2021 121 EXHIBIT B TO INVESTMENT ADVISORY SERVICES AGREEMENT Fees If the Plan elects to receive the Managed Account Services, the Plan shall pay Morningstar an annual fee, paid monthly, of an amount equal to 25 basis points to Morningstar (the "Morningstar Investment Management Fee") and 20 basis points may be charged by the Service Provider on the net assets under management ("AUM") in the Plan account of each Participant enrolled in the Managed Account Services as of the last day of the month. Plan Sponsor shall contact Service Provider for the final fee. The Service Provider shall deduct the Morningstar Investment Management Fee from the enrolled Participant's Plan account and remit the fees to Morningstar. The AUM shall exclude the following: • Outstanding loan amounts, • Amounts in adjustment accounts, • Self-directed brokerage balances, • Company stock, and • Any other assets excluded from the Managed Account Service. Plan Participants that enroll or unenroll or terminate and distribute their accounts in the Managed Account Service in the middle of a month will be pro -rated based on the number of days the account is active based on a percentage of the total number of days in the month. Collection Authorization and Payment Terms The parties hereby agree that Service Provider shall collect all applicable fees from each Participant's Plan account and is hereby authorized to remit such fees to Morningstar. The parties agree and acknowledge that Service Provider shall collect and remit the Morningstar Investment Management Fee in monthly installments in arrears beginning at the end of the month in which the Morningstar Investment Management Fees were earned by Morningstar. Non -ERISA July 2021 122 CONSENT INDIAN RIVER COUNTY MEMORANDUM TO: Jason Brown County Administrator FROM: Suzanne Boyll Human Resources Director DATE: October 4, 2022 SUBJECT: Authorization of a Side by Side Recordkeeping Agreement with Nationwide Retirement Solutions Inc for Recordkeeping Services for Assets in the Nationwide Fixed Account, the Termination of the ProAccount, and the Application for Group Flexible Purchase Payment Deferred Fixed Annuity Contract BACKGROUND: At its May 3, 2022 meeting, the Board of County Commissioners awarded RFP 2022040 to Lincoln Financial Services and authorized the County to enter into an agreement for recordkeeping services with Lincoln Financial Services for the County's 457 (b) Deferred Compensation Plan. During the plan transition, it was identified that assets in the Nationwide (NW) Fixed Account would be subject to either a Market Value Adjustment (MVA) payment or a 5 Year Put. Under the MVA, the cost in August 2022 was estimated to be $1.2M to transfer all funds to Lincoln. Under the 5 Year Put, the assets in the Nationwide (NW) Fixed Account would transfer to Lincoln at 20% each year over a five year period. During the five year put period, the funds that remained with Nationwide in the fixed account would not be included in the Lincoln recordkeeping agreement because the propriety NW Fixed Account is not on the National Securities Clearing Corporation (NSCC). In order to provide recordkeeping services on the propriety funds' remaining with Nationwide, Nationwide provided the County with a recordkeeping services proposal (attached). Under the terms of the recordkeeping services agreement, Nationwide would continue to provide a quarterly credit rating which will not fall below 1% for the life of the contract and is established at 2.5% for 4C.2022. The recordkeeping fee is .25 bps. Under this agreement, participants in the NW Fixed Account will be provided the following options: 1) Participants can choose between 60 monthly payment or 20% of account balance annually to transfer to the Lincoln 2) Participants can choose to stay with NW Fixed Account under the terms of the amended recordkeeping agreement and not transition to Lincoln 3) Balances under $1,000 can move over in full to Lincoln 123 CONSENT The County Administrator in consultation with Chair of the Indian River County Deferred Compensation Committee, Jeffrey Smith, and as recommend by the County's Deferred Compensation Committee Consultant AnclCo, accepted the Nationwide proposal in order to maintain recordkeeping services for participants in the NW Fixed Account and provide transition options to participants to include remaining in the NW Fixed Account and executed the required amendment (attached). RECOMMENDATION: Staff respectfully requests the Board authorize the amendment to the Administrative Services Agreement for the County's Governmental 457(b) Deferred Compensation Plan of Indian River County effective September 27, 2022 providing for Fixed Account recordkeeping services with IVntinn—irio tho torminntinn of tho Drn A!^ ntlnt nn+inn -4 +ho nnnli—+i^n for Group Flexible ed in the Nationwide 124 t) Nationwide Is on your side September 15, 2022 AndCo in care of the Indian River County 457(b) Plans: Indian River County Property Appraiser Indian River County Clerk of Courts Indian River County BOCC Indian River CountyTax Collector Indian River County Supervisor of Flection Attn: Jennifer Gainfort, Consulting Department 531 W Morse Blvd., Suite 200 Winter Park, FL 32789 ienni£ers,fc 'andcoconsulting° com Re: Fixed Account Recordkeeping Services Dear Ms. Gainfort, Nationwide welcomes the opportunity to continue providing our recording keeping services for the County's Nationwide Fixed Account assets. A summary of the accepted offer is below: *Dross crediting rate resets quarterly and is determined separately from the GM1R Future quarterly crediting rates are determined on a quarterly basis by Nationwide and may vary based on market conditions and investment performance. Please feel free to contact me at 470-216-6872 or russeg_Q'nationa!ide.com with any questions. Sincerely, Greg Russell Program Director cc: Jonathan Gomes, Consultant Relationship Manager ADMINISTRATIVE SERVICES AGREEMENT FOR THE GOVERNMENTAL 457(b) DEFERRED COMPENSATION PLAN OF INDL&N RIVER COUNTY This Administrative Services Agreement ("Agreement') is effective on the date written below by and between Nationwide Retirement Solutions, Inc., a Delaware corporation and an affiliate and subsidiary of Nationwide Financial Services, Inc. (collectively referred to as "Nationwide"), and Indian River County, the Plan Sponsor (hereinafter "Plan Sponsor'. WHEREAS, Plan Sponsor, pursuant to and in compliance with the Internal Revenue Code of 1986, as amended (hereinafter referred to as the "Code'), established and sponsors a Section 457(b) Plan (hereinafter the "Plan"); WHEREAS, Plan Sponsor has adopted and established for itself, its employees, and any special districts governed by the Indian River Board of County Commissioners, the Tax Collector, the Clerk of Courts, the Property Appraiser, the Supervisor of Elections and their respective employees a deferred compensation program, WHEREAS, the Plan Sponsor desires to have Nationwide perform the non -discretionary recordkeeping and administrative services for the Plan described in this Agreement (hereinafter referred to as "Administrative Services"); and WHEREAS, Nationwide desires to provide such Administrative Services subject to the terms and conditions set forth in this Agreement. NOW THEREFORE, Nationwide and Plan Sponsor desire to enter into this Agreement and abide by the terms therein. 1. DESIGNATION Plan Sponsor designates Nationwide as Plan Sponsor's non -discretionary provider of Administrative Services for the Plan in accordance with the terms of this Agreement. 2. APPOINTMENTS AND RESPONSIBILITIES Plan Sponsor: Plan Sponsor is responsible for maintaining the Plan and for maintaining the tax -qualified status of the Plan. Plan Sponsor represents and warrants that the Plan has been property adopted and established in accordance with any applicable state or local laws or regulations governing the Plan Sponsor's ability to sponsor the Plan. Plan Sponsor warrants that the Plan was established, and will be maintained by Plan Sponsor, in accordance with the provisions of Section 457(b) of the Code. Plan Sponsor further acknowledges and agrees the Plan Sponsor is an eligible governmental employer as defined by Section 457(e)(1)(A) of the Code. Plan Sponsor hereby appoints Nationwide to act as the Plan Sponsor's provider of Administrative Services for the Plan Any duties or services not specifically described herein as being provided by Nationwide are the responsibility of the Plan Sponsor, unless specifically delegated to Nationwide in the Plan document. -1- 126 E. The Plan Sponsor acknowledges that it has received all information about compensation paid to Nationwide as the Plan Sponsor has reasonably requested and has determined that the total amount of compensation paid to Nationwide as described in this Section 4 is reasonable and appropriate for the services provided. F. To the extent offered under the Plan, in addition to the above described fees, Nationwide shall also receive fees with respect to a participant's use of participant loan administration, the Self -Directed Brokerage Account ("SDBA"), and Nationwide's managed account service ("ProAccount") as follows: 1) Loans- If requested by the Plan Sponsor and permitted under the terms of the Plan, Nationwide will assist the Plan Sponsor in processing participant loan requests pursuant to participant loan administrative procedures approved by the Plan Sponsor and Nationwide. All participant loan fees are governed by Nationwide's Plan Loan Procedures document, a copy of which has been provided to the Plan Sponsor. 2) Self -Directed Brokerage Account (SDBA) — The Plan offers an SDBA investment option for qualifying participants in the Plan. Initial and annual administrative fees may be charged as outlined in the separate fee agreement for the SDBA that will be provided to each participant by the SDBA provider. 3) Managed account services (Nationwide ProAccount) - Managed account services are offered by Nationwide Investment Advisors ("NIA"), an affiliate of Nationwide, and the Plan Sponsor must execute a separate agreement with NIA if the Plan Sponsor wants to add ProAccount to the Plan. Only participants who choose to utilize Nationwide's ProAccount managed account service are assessed fees. Such fees are authorized in a separate ProAccount agreement between the participant and NIA, and are assessed pursuant to the terns and conditions of such agreement. Fees related to participant loans, the SDBA and Nationwide ProAccount are in addition to the Compensation Requirement for Administrative Services as provided in this Agreement. G. Plan Sponsor may request Nationwide and/or its affiliates to provide additional services not described in this Agreement by making such a request in writing, which Nationwide may decide to perform for compensation to be negotiated by the parties prior to the commencement of the additional services. 5. INVESTMENT OPTIONS Nationwide agrees to accept contributions to the Plan for investment in the investment options selected for the Plan by the Plan Sponsor or other responsible plan fiduciary in its sole discretion and agreed to by Nationwide. Plan Sponsor agrees to accept the terms and conditions of the annuity contracts, mutual funds, and any other investment products selected for the Plan after being provided with a copy of same. ti. ADMINISTRATION SERVICES A. PLAN DOCUMENTS -3- 127 (g) investment transfers; (h) benefit payments; (i) current account balance; (j) transaction history since finding under the Agreement; (k) contributions since funding under the Agreement; (I) e-mail address; (m) beneficiary designation; (n) benefit tax withholding information; and (o) such other information as agreed upon by the Plan Sponsor and Nationwide. Nationwide will post and credit the amounts transmitted by the Plan Sponsor to the accounts of Plan participants in accordance with the latest instructions from participants or the Plan Sponsor (as applicable) on file with Nationwide, which instructions can include direction via electronic sources such as the website or the interactive voice manse system. Nationwide agrees to process the enrollment of employees eligible to participate in the Pian as determined by the Plan Sponsor. Nationwide also agrees to conduct enrollment meetings with Plan Sponsor's employees in such number and manner as determined by the parties. The Plan Sponsor agrees to allow and facilitate the periodic distribution of materials to Plan, participants at the time and in the manner determined by the Plan Sponsor; provided however, that all reasonable expenses associated with such distribution shall be paid by Nationwide. The Plan Sponsor further agrees to allow and facilitate the periodic distribution• to its employees of materials prepared by Nationwide regarding products and services offered by Nationwide, or its affiliates, which Nationwide reasonably believes would be beneficial to such PIan participants. C. PLAN CONTRIBUTIONS Plan Sponsor agrees to send all Plan contributions to Nationwide on a timely basis that is in compliance with all applicable legal requirements. Nationwide agrees to post funds received as contributions to the Plan in accordance with the separate funding agreements between, Plan Sponsor and Nationwide or any of its affiliates when received from the Plan Sponsor in good order by Nationwide. The term "in good order," as used in this Agreement, means the receipt of required information by Nationwide, in a form deemed reasonably acceptable to Nationwide, with respect to the processing of a request or the completion of a task by Nationwide that reasonably requires information from a third -party. More specifically, Plan contributions and contribution allocation information must meet all of the following requirements in order to be deemed to be in good order~ 1) All records must include the correct and complete participant name, Social Security number, and the amount to be credited to the participant's account(s); 2) The source of fiends must be identified (e.g., 457(b) salary reduction, employer contribution); 3) The Plan name and Plan number must be clearly identified; 4) Both the participant allocation detail and the total contribution amount must be received, and these two totals must match each other; and -5- 128 Internet site. Nationwide shall implement reasonable physical and technical safeguards to protect personal information made available on its Internet site. Nationwide shall establish safeguards that are no less rigorous than generally accepted industry practices. 2) Participants will have the unlimited ability to increase (within the limitations of Section 457(b) of the Code) or decrease contributions to the Plan. All requests to increase or decrease contribution amounts will be processed by Nationwide within five (5) Business Days of receipt of the request, but cannot be effective until the Iater of (1) the first of the calendar month following the month in which the contribution change was requested, and (2) the date the contribution change can be processed by the Plan Sponsor given Plan Sponsor's payroll processing schedule. 3) Participants will have the ability to exchange existing account balances, in full or in part, and to redirect future contributions from one investment option offered by the Plan to another on any Business Day, subject to Nationwide policies and any applicable restrictions or penalties applied by the investment options. 4) Participants will receive consolidated quarterly statements detailing their account activity and account balances for the Plan. Participants shall be informed, via their statements, that they must notify Nationwide of any errors within forty-five (45) days of receipt of their statements or confirmation of their investments. Nationwide will not be liable for any errors not reported within this time frame. 5) Nationwide agrees to deliver account statements (by U.S. mail or electronically) to Participants within thirty (30) calendar days after the end of each calendar quarter. This timeframe is contingent upon Nationwide receiving fund returns from the mutual fund providers within four (4) Business Days after the end of each quarter. If Nationwide does not receive this information with four (4) Business Days then account statements may be correspondingly delayed and will be delivered as soon as administratively feasible. 6) Nationwide agrees to provide reports to the Plan Sponsor within thirty (30) days following the end of each calendar year quarterly reporting period (March 31, June 30, September 30, and December 31) summarizing the following; a) All participant activity that transpired during the reporting period; b) Total contributions allocated to each investment or insurance option under the Plan; and c) Total withdrawals by participant. This report shall include the amount, type and date of withdrawal. 7) Nationwide agrees to maintain, for a reasonable amount of time, the records necessary to produce any required reports. Plan Sponsor agrees that all related paper and electronic records shall remain the property of Nationwide. E. DISTRIBUTIONS -7- 129 Nationwide will create and maintain a website for and on behalf of the Plan Sponsor for the use of its participants. Participants may access the website via the internet at www,Drsfbru&m to review and make changes to their accounts. The website is the exclusive property of Nationwide. The website is available twenty-four (24) hours a day, except for routine maintenance of the system. B. INTERACTIVE VOICE RESPONSE SYSTEM Nationwide shall provide an interactive voice response (IVR) toll free telephone number, which shall be operative twenty-four (24) hours per day, seven (T) days per week, except for routine maintenance of the system. Nationwide shall provide a system that allows Participants to conduct routine pian transactions and obtain account balance information through the IVR. The Pian Sponsor authorizes Nationwide to honor participant instructions, which may be submitted using the toll -five number, either through the IVR or a live representative. C. CUSTOMER SERVICE Nationwide's customer service representatives will be available toll-free to answer participant questions and process applicable transactions between the hours of 8:00 a.m. and 11:00 p.m. Eastern Time each Monday through Friday, and between the hours of 9:00 a.m. and 6:00 pm. Eastern Time each Saturday, with the exception of certain holidays as dictated by the New York Stock Exchange holiday trading schedule. 8. TERMINATION Either the Plan Sponsor or Nationwide may terminate this Agreement for any reason upon providing one -hundred and twenty (120) days written notice to the other party. Provision of such written notice of termination by Plan Sponsor to Nationwide does not relieve the Plan Sponsor of any termination requirements that may be associated with specific investment options, nor does it relieve Plan Sponsor of any termination requirements associated with those investment options. Plan Sponsor further acknowledges and agrees that the Plan is responsible for any investment product liquidation fees, if applicable, and that neither Nationwide nor any of its affiliates assumes liability for any such fees. Upon the effective date of termination of this Agreement the following shall occur: A. Nationwide will no longer accept contributions to the Plan except by mutual agreement of the parties. B. Nationwide will: I) Provide Pian Sponsor, or such other entity as the Plan Sponsor may designate in writing, with a copy of all participant records in an electronic format as mutually agreed upon between Nationwide and Plan Sponsor, within sixty (60) days after the effective date of the termination. -9- 130 enemy, acts of the government in its sovereign or contractual capacity, fires, floods, epidemics, quarantine or restrictions, freight embargoes, and unusually severe weather. Neither party shall be responsible for performing all or any portion of the services contemplated by this Agreement that are precluded by the foregoing events for such period of time as the Plan Sponsor or Nationwide are prevented from performing such services in the normal course of business. Neither Nationwide nor the Plan Sponsor shall be liable for lost profits, losses, damage or injury, including without limitation, special or consequential damages, resulting in whole or in part from the foregoing events. "Acts of God" are defined as acts, events, happenings or occurrences due exclusively to natural causes and inevitable accident or disaster, exclusive from all human intervention. 13. INDEMNIFICATION Nationwide agrees to indemnify, defend and hold harmless the Plan Sponsor, its officers, directors, agents, and employees from and against any loss, damage or liability assessed against the Plan Sponsor or incurred by the Plan Sponsor arising out of or in connection with any claim, action, or suit brought or asserted against the Plan Sponsor alleging or involving Nationwide's non- performance of the provisions of this Agreement under Nationwide's exclusive control, or negligence or willful misconduct in the performance of its services, duties and obligations under this Agreement. In addition, Nationwide represents, warrants and covenants that the indemnification in this paragraph is enforceable under applicable law and that Nationwide will not assert a position contrary to such representation in any judicial or administrative proceeding. The Plan Sponsor agrees to the extent permitted and to the limits set forth in Section 768.28 of the Florida Statute, to indemnify, defend and hold harmless Nationwide, its officers, directors, agents, and employees from and against any loss, damage or liability assessed against Nationwide or incurred by Nationwide arising out of or in connection with any claim, action, or suit brought or asserted against Nationwide alleging or involving the PIan Sponsor's non-performance of the provisions of this Agreement under the Plan Sponsor's exclusive control, or negligence or willful misconduct in the performance of its duties and obligations under this Agreement. In addition, the Plan Sponsor represents, warrants and covenants to the extent permitted and to the limits set forth in Section 768.28 of the Florida Statute, that the indemnification in this paragraph is enforceable under applicable law and that Plan Sponsor will not assert a position contrary to such representation in any judicial or administrative proceeding. 14. PARTIES BOUND This Agreement is binding upon and shall inure to the benefit of the successors and assigns of Nationwide and the Plan Sponsor. The Plan and Plan participants are not parties to this Agreement, and Nationwide has no contractual obligations to the Plan or Plan participants. This Agreement shall be enforceable only by the parties, not by Plan participants or other third parties, and is intended to create no third party beneficiaries. 15. PRIVITY OF CONTRACT Plan Sponsor acknowledges and agrees that Nationwide and Plan participants shall have no privity of contract with each other. M 131 either party from performing any act or not performing any act as either may be required by statute, court decision, or other authority having jurisdiction thereof. 22. SURVIVAL OF REPtEcENIAT'IONS. WARRANTEES AND INDEMNITY Notwithstanding anything to the contrary, any representations and warranties contained herein shall survive termination of this Agreement for the full period of any applicable statute of limitations that may apply to this Agreement. Further, the party making any representation or warranty shall notify the other party in writing within five (5) business days of any representation or warranty that is no longer valid. Notwithstanding anything to the contrary, any indemnity provisions contained herein shall survive the termination of this Agreement for the full period of any applicable statute of limitations that may apply to this Agreement. 23. ATTORNEYS, FEES Each party agrees that is the event of a claim, arbitration, or lawsuit filed by a party to this Agree meat, each party shall be responsible for its own attorneys' fees and/or any costs or expenses rrelated to the bringing or defense of any such claim, arbitration, or lawsuit. 24. HEADINGS The headings of articles, paragraphs, and sections in this Agreement are included for convenience only and shall not be considered by either party in construing the meaning of this Agreement. 25. NOTICES All notices and demands to,be given uAder this Agreement by one party to another shall be given by certified br'United States nail, addressed: to the party to be notified or upon whom a demand is being made, at the addresses set forth in this Agreement or such other place as either party may, frorn time to time, designate in writing to the other party. Notice shall be deemed received on the earlier of twee (3) Business Days.from the date of mailing, or the day the notice is actually received by the party to whom the notice was sent, If to Nationwide: Nationwide Retirement Solutions, Inc. 10 W. Nationwide Blvd., 05-04-101A Columbus, Ohio 43215 If to Plan Sponsor. Indian River County Attention: Suzanne Boyll, BOCC Human Resource Dir 1800 27th Street Vero Beach, FL 32960 772-226-1402 sboyll@ircgov.com -13- 132 FIRST AMENDMENT TO TRE ADMINISTRATIVE SERVICES AGREEMENT FOR THE GOVERNMENTAL 457(b) DEFERRED COMPENSATION PLAN OF INDIAN RIVER COUNTY This first Amendment to the Administrative Services Agreement ("Amendment") is effective on the date written below by and between Nationwide Retirement Solutions, Inc., a Delaware corporation (hereinafter "Nationwide"), and [Plan Sponsor Name], the Plan Sponsor (hereinafter "Plan Sponsor") WHEREAS, Plan Sponsor and Nationwide executed the Administrative Services Agreement for itself, its employees, and any special districts governed by the Indian River Board of County Commissioners, the Tax Collector, the Clerk of Courts, the Property Appraiser, the Supervisor of Elections and their respective employees a deferred compensation program ("Agreement") between Nationwide and Plan Sponsor on the 15th day of August 2017, under which Nationwide agreed to provide administrative services to the Plan Sponsor's Deferred Compensation Plan (hereinafter "Plan"); and WHEREAS, Plan Sponsor has decided to move all plan assets to a successor service provider except those assets in the Nationwide Fixed Account, and WHEREAS, Plan Sponsor desires to leave assets in the Nationwide Fixed Account on an investment only basis, and WHEREAS, Nationwide is willing to hold the assets currently in the Fixed Account and credit investment returns. NOW, THEREFORE, Plan Sponsor and Nationwide hereby mutually agree to the following: The Administrative Service Agreement for the Plan is hereby amended to remove any Nationwide responsibility not related to maintaining the existing Fixed Account. From the date of this Amendment, Nationwide will provide the Fixed Account as an investment only accommodation. The assets in the account will be credit with a rate of return equal to 2.50% until 12/31/2022. Future quarterly crediting rates will be determined on a quarterly basis by Nationwide and may vary based on market conditions and investment performance. No new contributions for the Plan will be accepted into the Fixed Account. Nationwide will process distributions from the Fixed Account in accordance with its normal business practices as agreed upon by the Plan Sponsor. Section 3. TERM is hereby deleted and replaced in its entirety with the following: 3. TERM This Agreement is effective until terminated in accordance with Section 8. Section 4. COMPENSATION is hereby deleted and replaced in its entirety with the following: 4. COMPENSATION A. As compensation for the performance of the Administrative Services provided by Nationwide pursuant to this Agreement, the Plan Sponsor and Nationwide agree that Nationwide shall be entitled to receive an annualized compensation requirement of 0.25% (25 basis points) of the Plans account value held by Nationwide ("Compensation Requirement") to be calculated and collected according to Nationwide's standard business practices. Nationwide's Compensation [1l 133 5) Nationwide agrees to maintain, for a reasonable amount of time, the records necessary to produce any required reports. Plan Sponsor agrees that all related paper and electronic records shall remain the property of Nationwide. B. DISTRIBUTIONS 1) Nationwide shall make all distributions as directed by the Plan Sponsor, in accordance with the terms of the Plan Document, Fixed Annuity Contract and normal Nationwide processes, with the exception of loans. 2) Nationwide shall furnish each participant, who has received a benefit payment, tax reporting forms in the manner and time prescribed by federal and state law. Plan Sponsor shall be responsible for all tax reporting requirements for periods prior to the effective date of the original Agreement, or after the termination date of this Agreement, unless otherwise agreed to in writing by the parties to this Agreement 3) To the extent required by federal and state law, Nationwide will calculate and withhold from each benefit payment federal and state income taxes. Nationwide will report such withholding to the federal and state governments as required by applicable law. Section 7 PARTICIPANT SERVICES is hereby deleted and replaced in its entirety with the following: 7. PARTICIPANT SERVICES CUSTOMER SERVICE Nationwide's customer service representatives will be available toll-free to answer Plan Sponsor or recordkeeper questions and process applicable transactions between the hours of 8:00 a -m. and 11:00 p.m. Eastern Time each Monday through Friday, and between the hours of 9:00 a.m. and 6:00 p.m. Eastern Time each Saturday, with the exception of certain holidays as dictated by the New York Stock Exchange holiday trading schedule. The following provisions of the Agreement remain unchanged. Section 1. Designation, Section 2, Appointments and Responsibilities, Section 8. TERMINATION, Section 9. DEFAULT, Section 10. ASSIGNABILITY, Section 11. CONFIDENTIALITY, Section 12. CIRCUMSTANCES EXCUISING PERFORMANCE, Section 13. INDEMNIFICATION, Section 14, PARTIES BOUND, Section 15. PRIVITY OF CONTRACT, Section 16. APPLICABLE LAW AND VENUE, Section 17. MODIFICATION, Section 18. NO WAIVER, Sectionl9. SEVERABILITY, Section 20. AUTHORIZED PERSONS, Section 21. COMPLIANCE WITH THE LAWS, Section 22. SURVIVAL OF REPRESENTATIONS, WARRANTIES and INDEMNITY, Section 23. ATTORNEYS" FEES, Section 24. HEADINGS and Section 25. NOTICES Except as otherwise amended herein, all other terms and conditions of the Agreement not in conflict shall remain in full force and effect. If there is a conflict or ambiguity among the amendment and the Agreement, the documents in the following order shall prevail and control: (1) this first Amendment and (2) the original Agreement. [31 W Nationwide` is on your side Nationwide Investment Advisors, LLC Nationwide ProAccounto Plan Sponsor Nationwide ProAccounte Program Termination Form Instructions: Complete this form in its entirety only if you wish to terminate your plan's participation the managed account program, Nationwide ProAccountO. If you have any questions, please call 1-877-677-3678. Once we receive this form, we will process It and the ProAccount program termination will be effective as soon as administratively feasible upon acceptance of this notice by NIA. Once your plan's agreement has been terminated, a letter will be sent to each participant enrolled in ProAccount, letting them know their retirement plan account is no longer under management and they have full control over any investment changes going forward. This form is being completed for the following plan types: X) 457(b) ❑ 401(a) ❑ 401(k) ❑ 403(b) 09 By checking the box at the left and signing on the line below, i am acknowledging that i no longer want to have Nationwide Investment Advisors, LLC offer its managed account service on the plan stated below. I understand that all active ProAccount participants will be terminated from ProAccount and sent a termination confirmation letter. All investments will remain in their current allocations until participants proactively make changes. Employer Name Indian River County BOCC 457 Employer Number 0036758001 Employer Contact Name (Please Print) Employer Contact Title (Please Print) Employ r tact Signat Ier" Date Nationwide Ls`tmen t Advisors, LLC, an SEC -registered investment adviser, is the investment adviser for Nationwide ProAccount®. Nationwide, Nationwide ProAccount, the Nationwide N and Eagle and Nationwide is on your side are service marks of Nationwide Mutual Insurance Company. NRN-1678AO (06/2017) Nationwide investment Advisors, LLC - Nationwide ProAccount® P.O. Box 182797 • Columbus, OH 43218-2797 Ph: (888) 540-2896 • Fax: (877) 677-4329 135 Nationwide' APPLICANT --- Indian River County BOCC APPLICATION FOR GROUP FLEXIBLE PURCHASE PAYMENT DEFERRED FIXED ANNUITY CONTRACT underwritten by Nationwide Life Insurance Company One Nationwide Phi Columbus, Ohio 43215 (the "Applicant"), applies to be the Contract Owner of a Group Flexible Purchase Payment Deferred Fixed Annuity Contract (the "Contract") underwritten by Nationwide Life Insurance Company ("Nationwide"). The Group Flexible Purchase Payment Deferred Fixed Annuity Contract applied for will become effective on the "Effective Date of Contract" if the initial Purchase Payment and this application are accepted by Nationwide. In the event the initial Purchase Payment or this application are not accepted, Nationwide's liability will be limited to a return of the initial Purchase Payment, and any subsequent Purchase Payments remitted. PURCHASE PAYMENT Applicant agrees to permit Participants in its Plan to allocate Purchase Payments to the Contract as of the "Effective Date of Contract". TRANSFER AND EXCHANGE LIMITATION ELECTION --� Elect One: ❑ Contract Level At'sreeate Exchange Limitation (the limitation on Outgoing Exchanges from the Fixed Account is determined based on total assets held in the Contract's Fixed Account's value under the Contract as of the last Business Day preceding the current calendar year). M Participant Level Ezchanee Limitation (the limitation on Outgoing Exchanges from the Contract is applied to each Participant Account under the Contract The Contract Owner, or its designated Record Keeper is responsible for applying this limitation). STATE INSURANCE FRAUD WARNINGS FOR FL RESIDENTS ONLY: Any person who knowingly and with intent to injure, dehwrd, or deceive any insurer files a statement of claim or an application containing any false, incomplete, or misleading information is guilty of a felony of the third de&W. ONAL STATE NOTICES NOTICE TO FL RESIDENTS ONLY: Annuity payments, death benefits, surrender values, and other Contract Values are subject to a market value adjustment, and are not guaranteed as to fired dollar amount, unless otherwise specified. SIGNATURES Si on behalf Indian River County BOCC 457(b) Deferred Compensation Plan _�f �y of ��2 _this Yes ❑ No Do you have life insurance or annuity contracts? Yes No will the appl �ontract replace any existing life insurance or annuity contracts? [(iSadzectSignfu of Apieant) i r Yes ❑ No Do you have any reason to believe the Contract applied for is to replace existing annuities or insurance? [(Authorized Nationwide Agent(Representative Signature)] (Authorized Nationwide Agent(Representative — Please Print) [(Title)] Florida License Identification #: (Florida Agents only) Date NRA-0I05FL.I (Florida) (1112007) 136 Consent Item Indian River County, Florida Department of Utility Services Board Memorandum Date: September 22, 2022 To: Jason E. Brown, County Administrator From: Sean C. Lieske, Director of Utility Services Prepared by: Harrison Youngblood, PE, Utilities Engineer, Utility Services Subject: Work Order 13 to Bowman Consulting Group, LTD for West Wabasso Phase 3A Background/Analysis: The Indian River County Department of Utility Services (IRCDUS) desires to utilize Bowman Consulting Group, LTD. (Bowman) under its CCNA 2018 contract, extended in 2021, to provide professional engineering services for Phase 3A (61s' Drive) of the West Wabasso Septic to Sewer project. The project will be comprised of a new gravity sanitary sewer collection system and related lift station in a developed residential community. The proposal includes services for the engineering design and supplemental survey, construction permitting, environmental resource permitting, preparation of bid documents, and bidding assistance. Funding: Funds in the amount of $39,250.00 for this project are derived from Utilities capital funding in the account Impact Fee/West Wabasso Sewer Phase 3, number 472-169000-21512. Utilities capital fund revenues are generated from impact fees. Description Account Number Amount Impact Fee/West Wabasso Sewer Phase 3 472-169000-21512 $39,250.00 Recommendation: Staff recommends that the Board of County Commissioners approve Work Order 13 to Bowman Consulting Group, LTD., in the amount of $39,250, and authorize the Chairman to execute and sign on their behalf. Attachment: 1. Work Order 13 —Bowman Consulting Group Page3 l7 CCNA2018 WORK ORDER 13 West Wabasso Septic to Sewer Phase 3A — 61" Drive Engineering Design and Permitting This Work Order Number 13 is entered into as of this _ day of 2022, pursuant to that certain Continuing Consulting Engineering Services Agreement for Professional Services entered into as of this 17th day of April, 2018, and extended on May 7, 2021 (collectively referred to as the "Agreement"), by and between INDIAN RIVER COUNTY, a political subdivision of the State of Florida ("COUNTY") and Bowman Consulting Group, Ltd. ("Consultant"). The COUNTY has selected the Consultant to perform the professional services set forth on Exhibit A (Scope of Work), attached to this Work Order and made part hereof by this reference. The professional services will be performed by the Consultant for the fee schedule set forth in Exhibit B (Fee Schedule), attached to this Work Order and made a part hereof by this reference. The Consultant will perform the professional services within the timeframe more particularly set forth in Exhibit C (Time Schedule), attached to this Work Order and made a part hereof by this reference all in accordance with the terms and provisions set forth in the Agreement. Pursuant to paragraph 1.4 of the Agreement, nothing contained in any Work Order shall conflict with the terms of the Agreement and the terms of the Agreement shall be deemed to be incorporated in each individual Work Order as if fully set forth herein. IN WITNESS WHEREOF, the parties hereto have executed this Work Order as of the date first written above. CONSULTANT: BOARD OF COUNTY COMMISSIONERS Bowman Consulting Grou d. OF INDIAN RIVER COUNTY By: Print Name: Erik Juliano, P.E. By: Peter D. O'Bryan, Chairman Title: Branch Manager BCC Approved Date: Attest: Jeffrey R. Smith, Clerk of Court and Comptroller By: Approved: Approved as to form and legal sufficiency: Deputy Clerk Jason E. Brown, County Administrator Dylan T. Reingold, County Attorney i CCNA2018 WORK ORDER 13 Bowman Consulting Group, LTD. West Wabasso Septic to Sewer Phase 3A (6111 Drive) SCOPE OF SERVICES Bowman Consulting Group Ltd. (Bowman) is pleased to submit this proposal for professional engineering services to Indian River County Department of Utility Services for Phase 3A (6111 Drive) of the West Wabasso Septic to Sewer project. The project will be comprised of a new gravity sanitary sewer collection system and related lift station in a developed residential community. The proposed lift station will be located on a vacant residential lot at address 8685 61" Drive. Indian River County is working to acquire ownership of that property. We propose to provide the following services: Task 1— Engineering Design & Supplemental Survey Bowman will prepare engineering design plans and lift station report to support the construction of the sanitary sewer collection system and forcemain in the 61" Drive right of way and lift station on address 8685 61St Drive. The plans and report will use data collected to support the previous design performed under Work Order 3. A supplemental topographic survey of will be provided to include the wetland line flagged by County staff. Construction plans, lift station report, and opinion of probable construction cost will be submitted for review at the 90% level. The final construction plans will reflect staff comments. Deliverables • Construction Plans, including plan, sewer profile, lift station plan and section, and utility details (90% and Final); • Lift Station Design Report (90% and Final); • Opinion of Probable Construction Cost (90% and Final); and • Geotechnical Report. Task 2 - Permitting Using the plans produced in Task 1 Bowman will apply for the following required permits: 1. Indian River County Right of Way ($800 fee); and 2. Florida Department of Environmental Protection (FDEP) Wastewater Construction General Permit ($250 fee). Bowman will address reasonable agency comments as part of this task. Application fees shall be included in the lump sum fee for this task. Task 3 — Environmental Resource Permitting The lift station site (addresses 8685 & 8695 61" Drive) contains a borrow pond that may be considered an environmental resource by jurisdictional agencies. Construction of the proposed lift station may impact the upland buffer area and possibly the pond itself. In that case, environmental resource permitting would be required. If it appears the project will impact the pond, Bowman will obtain an environmental survey and report 139 CCNA2018 WORK ORDER 13 Bowman Consulting Group, LTD. West Wabasso Septic to Sewer Phase 3A (611t Drive) of the subject properties and obtain an environmental resource permit (ERP) from the St. Johns River Water Management District (SJRWMD). Task 4 — Bid Documents and Bidding Assistance Bowman shall revise the "West Wabasso Septic to Sewer Phase 3B" bid documents to be specific to the Phase 3A (61St Drive) project. This task shall include attendance of the pre-bid and bid opening, assistance addressing requests for information (RFI's) during the bid process, and a recommendation of bid award. SERVICES NOT INCLUDED • Boundary Survey of 8685 615L Drive (Lift Station Site) • Construction Observation & Certification EXHIBIT B — FEE SCHEDULE Bowman will provide the services described above for the following lump sum fees: Task 1— Engineering Design & Survey $21,500.00 Task 2 — Permitting $ 5,250.00 (inc. Application Fees) Task 3 — Environmental Resource Permitting $ 8,000.00 Task 4 — Bid Documents and Bidding Assistance $ 4,500.00 Total: $ 39,250.00 Services will be invoiced monthly. Lump sum invoices will reflect the percentage of the task completed. EXHIBIT C — TIME SCHEDULE This Task Order shall commence upon Notice to Proceed with the work to be completed as follows: Task 1— Engineering Design & Survey 60 Days Task 2 — Permitting 60 Days following Task 1 Task 3 — Environmental Resource Permitting 60 Days Concurrent with Task 2 Task 4 — Bid Documents and Bidding Assistance 30 Days following Tasks 2 & 3 Total: 150 Days 140 INDIAN RIVER COUNTY, FLORIDA MEMORANDUM TO: Jason E. Brown, County Administrator THROUGH: Richard B. Szpyrka, P.E., Public Works Director FROM: Andrew Sechen, Land Acquisition Specialist SUBJECT: MedFast Urgent Care Center Letter of Intent for Lease DATE: September 22, 2022 DESCRIPTION AND CONDITIONS The County purchased Sebastian Corners Retail Center, LLC located at 1919-1931 US Highway 1, Sebastian, Florida on September 5, 2017. The purchase was for the relocation of the North County Offices of the Tax Collector, Property Appraiser, Clerk of the Court, Utilities Department and Veteran Services. Staff has been listing the vacant property with Colliers International, a commercial real estate company, who has a contract with the County to represent us as our realtor for the vacant property. Las Palmas Cuban Restaurant was a tenant at the retail center and they rented a 3,200 square foot unit. The lease term was a month-to-month at will lease that terminated on January 31, 2020. The tenant did not remove the kitchen equipment when they vacated the unit. Staff is asking for the Board to declare the following equipment surplus so that it can be disposed of. The equipment consists of a walk -in cooler, commercial smoker, commercial dishwasher, several food preparations tables, commercial stove hood system, and a raised bar area. This equipment has not been operated since the Las Palmas lease was terminated. MedFast Urgent Care Centers, Inc. (MedFast) has submitted a Letter of Intent to Lease Space (LOI) through Colliers to lease the 3,200 sq. ft. unit formerly leased by Las Palmas. MedFast operates 17 urgent care centers mainly in Brevard County but also a clinic in Edgewater and Port Orange. MedFast proposes to remove all existing interior contents and remodel the unit for use as a MedFast clinic. Staff recommends Med Fast's renovation contractor be authorized to properly dispose of the equipment, at a cost to the County to be determined as described in the attached Letter of Intent (LOI) if the County is not able to sell/dispose of the equipment through the normal surplus disposal process administered through the Purchasing Division. MedFast has requested the following in the attached Letter of Intent. • A lease for a (5) five-year term with two (2) options to extend the term of the lease term for two (2) five (5) year periods. Tenant shall give nine (9) months prior notice of its intention to exercise said option(s) to extend the lease. • Tenant shall be responsible for all utility bills (water, sewer, electric, garbage etc.) • Tenant shall pay $15.00/Rentable square footage plus sales tax on a Triple Net (NNN) Basis (real estate taxes, building insurance and maintenance) with 3% annual increases. Option term rent shall be at Fair Market Value, with a minimum increase of 3% of prior years' rental. • Tenant shall pay an annual additional Common Area Maintenance (CAM) charge estimated at $3.50 per square foot to cover its pro rata share of lawn, parking lot, and other property operating expenses. • Tenant shall have four (4) months of Base Rent abatement at the onset of the lease but shall pay for all utility bills and CAM during this time. 141 Page 2 MedFast Urgent Care Center Letter of Intent for Lease For October 11, 2022 BCC Meeting Tenant shall receive a direct payment of (cost to be determined) for removal of restaurant equipment and select demolition. Payment to be provided by Landlord to Tenant upon receipt of work provided by licensed contractor and after property has been inspected by the County to ensure work has been completed. FUNDING The annual base rental income from Las Palmas was $53,268 compared to the projected annual base rental income from MedFast, which is $59,200. Funding for the removal and disposal of the kitchen equipment will be made available with a budget amendment from the Sebastian Corners -Reserve Account to General Fund/Facilities Maintenance/ Other Contractual Services -Sebastian Corners, Account # 00122019-033490-17018. RECOMMENDATION Staff recommends the Board approve the Letter of Intent as proposed for MedFast Urgent Care Center and authorize the Chairman to execute a final Lease Agreement on behalf of the Board once finalized and approved by the County Attorney's Office. Staff also recommends that the Board declare the kitchen equipment as surplus, and authorize its disposal as proposed. ATTACHMENTS Letter of Intent APPROVED AGENDA ITEM FOR: October 11, 2022 142 C: \G ra ni cu s\Legi star5\L5\Te m p\c85ed d 45-b906-4065-af47-c8146d086568. doc September 19, 2022 Salvador Aleguas Sent via Email: salaleguas@gmail.com RE: Proposal to Lease 3,200 SF at Sebastian Commons 1919 US Highway 1, Sebastian FL 32958 Dear Sal On behalf of my client, Indian River County, I am pleased to present you, with this Letter of Intent to Lease space of the property located at 1919 US Highway 1, Sebastian FL 32958. TENANT: USE: SUITE SIZE: TERM: LEASE COMMENCEMENT: CONDITION OF PREMISES: EQUIPMENT DEMOLITION CREDIT: MedFast Urgent Care Centers, Inc Medical Clinic 3,200SF Five (5) years October 1, 2022 As Is. Landlord to ensure that all plumbing, electrical, HVAC shall be in good working order. Tenant shall receive a direct payment of $xxxx for removal of restaurant equipment and select demolition. Payment to be provided by Landlord to Tenant upon receipt of work provided by licensed contractor and after property has been inspected by County to ensure work has been completed. OPTIONS TO RENEW: Provided Tenant is not in default; Landlord shall provide two (2) options to extend the term continuing the lease term for five (5) years each. Tenant shall give nine (9) months prior notice of its intention to exercise said option(s). RENT ABATEMENT: Tenant shall have four (4) months of Base Rent abatement. Tenant shall be responsible for all utility bills and CAM during this time (water, sewer, electric, garbage, etc.). No warranty or representation, expressed or implied, is made as to the accuracy of the information contained herein, and same is submitted subject'rs, omissions, change of price, rental or other conditions, withdrawal without notice, and to any special listing conditions, imposed by our principals. BASE RENT: Tenant shall pay $15.00/RSF plus sales tax on a NNN Basis with 3% annual increases. Option term rent shall be at Fair Market Value, with a minimum increase of 3% of prior year's rental. CAM: Tenant shall pay an annual additional Common Area Maintenance (CAM) charge estimated at $3.50 psf to cover property operating expenses. SECURITY DEPOSIT: Equal to two (2) months' rent due at time of Lease execution in addition to first month's rent. Subject to review of tenant's financials, which are hereby requested. Lease may be assignable by Tenant to successor entity provided such entity has equivalent financial position of Tenant. GUARANTOR: Tenant will be required to have a Personal Guarantee. SIGNAGE: Tenant will receive rights to their pro -rata share of building monument signage (2) subject to Landlord & Government approval. In addition to monument signage, Tenant shall be permitted to use (re -purpose) the existing signage on the north and east exterior of the building. TERMINATION: Tenant shall have the right to terminate the lease after month 30 of the lease. Tenant will be required to provide no less than 6 -months notice to the landlord. In the event that the tenant terminates the lease, Tenant shall pay a termination fee equal to the unamortized leasing commissions, abated rent, and any tenant improvements funded by Landlord, plus a simple interest rate of 6% on all of such sums. These sums shall be amortized ratably over the initial Term of this Lease. BROKERAGE COMMISSIONS: Two percent (2%) of the lease rate shall be paid to tenant's broker M. The above general terms and conditions are not fully exhaustive. Additional issues will need to be addressed in the Lease. While we anticipate that the definitive LOI will be generally consistent with this Letter of Intent ("LOI"), this LOI shall not create any legal rights or obligations on behalf of or between the Lessor and the Lessee. Nothing herein constitutes an acceptance of a lease. This letter is not a contract and neither party shall be bound or obligated to perform under the above terms unless a Lease is fully executed by the parties. In the event of any conflict between the Lease and this LOI, the Lease shall prevail. This proposal shall remain in effect through October 30, 2022. It is understood that this is a non - Binding proposal and is subject to the execution of a lease in a form satisfactory to both parties. Yours sincerely, Oravkel /Vfa:P� Director Colliers Landlord: By: Name: Title: Date: Tenant: By: Name: Title: Date: 145 ?c INDIAN RIVER COUNTY, FLORIDA BOARD MEMORANDUM TO: Jason E. Brown, County Administrator THROUGH: Richard B. Szpyrka, P.E., Public Works Director THROUGH: Eric Charest, Natural Resources Manager SUBJECT: Post Hurricane Ian Beach Profile Surveys DATE: October 4, 2022 DESCRIPTION AND CONDITIONS On October 4, 2022, the Board of County Commissioners (BCC) approved a contract with Morgan and Eklund, Inc. (M&E) for Professional Land Surveying and Mapping Services for a two-year term. M&E is the selected County Consultant for professional onshore/offshore hydrographic surveying services. Hurricane Ian passed to the west of Indian River County on September 28, 2022 before exiting the state through Brevard County to our north. Although the County was spared a direct hit from Hurricane Ian, the storm had significant impacts in the form of beach and dune erosion on much of the County's beaches. After exiting the state, Hurricane Ian continued to stir up high surf as it made its' way up the Atlantic coastline towards South Carolina. The increased wave activity and high surf created by Hurricane Ian in the Atlantic Ocean caused varying amounts of erosion to occur throughout the County's beaches, including areas where significant dune retreat was observed. The proposed Work Order No. 1 from M&E provides post Hurricane Ian beach profile surveys (Onshore/Offshore) that are necessary to quantify the dune/beach erosion impacts to our County. The results of the survey will also be offered to the Florida Department of Environmental Projection and Federal agencies as documentation of losses if beach recovery funding becomes available. Work Order No. 1 totals $60,000.00. FUNDING Funding for this expenditure will be from the Other Professional Services — Hurricane Ian #DR4673, Account # 12814472-033190-22601. Account Name Account No. Amount Beach Restoration Fund/Other Professional Services/ Hurricane Ian #DR -4673 12814472-033190-22601 $60,000.00 m Page 2 Post -Hurricane Ian Beach Profile Survey October 11, 2022 BCC Agenda Item COMMENDATION The recommendation of staff is for the BCC to approve Work Order No. 1 tot he Professional Land Surveying and Mapping Services contract with Morgan and Eklund, Inc., in the amount of $60,000.00 and authorize the Chairman to sign the Work Order on behalf of the County. ATTACHMENTS 1. Morgan and Eklund Post -Hurricane Ian WO No. 1 2. Work Order No. 1 Agreement Execution APPROVED AGENDA ITEM FOR: October 11, 2022 147 M &E Morgan & Eklund, Inc. 4909 US Highway 1 Phone: 772-3BB-5364 Vero Beach, Florida 32987 Fax: 772-388-3165 October 4, 2022 Indian River County Public Works Coastal Division Attn: Mr. Eric Charest, Natural Resources Manager 1801 27`h Street Vero Beach, FL 32960 RE: Work Order #1, RFQ 2022064, Contract Dated 10/4/2022, Post -Hurricane Ian Onshore/Offshore Beach Profiles from R-20 to R-119, Indian River County, FL Dear Eric: Morgan & Eklund, Inc. (M&E) is pleased to provide you with the following proposal to furnish professional land and hydrographic survey services for the above referenced project. M&E will provide the County with beach profile data in ASCII file format together with AutoCAD drawings signed by the surveyor. Our price will be as follows: 100 Onshore/Offshore Beach Profiles @ $600/Line ............................. $ 60,000.00 As always, Morgan & Eklund, Inc. is looking forward to working with you and Indian River County on this project. Sincerely, David W. '�gned b, DMd W W % Coggin, David W. Coggin, PSM Vice President DWC:dmc Billing: project will be invoiced monthly 148 ,�g1Fq rti. <F Board o, f County Commissioners Administration - Building A 1801 27th Street Vero Beach, Florida 32960 Telephone: (772) 567-8000 FAX: 772-778-9391 Project: Post Hurricane Ian Beach Profile Monitoring Surveys WORK ORDER NO. 1 (Hydrographic Surveying) FOR PROFESSIONAL SERVICES AGREEMENT ANNUAL SURVEYING and MAPPING/GIS SERVICES WITH MORGAN AND EKLUND, INC In accordance with Contract No. 2022064 This Work Order No. 1 is in accordance with the existing AGREEMENT dated October 4, 2022 between Morgan and Eklund, Inc., (SURVEYOR) and Indian River County (COUNTY); This Work Order No. 1 amends the agreement as follows: SECTION I — PROJECT LIMITS This Work Order No. 1 is for the SURVEYOR to perform all related field and office Surveying and Mapping services in connection with the Post Hurricane Ian Beach Profile Monitoring Surveys; Florida Department of Environmental Protection Reference Monuments R-20 — R-119. SECTION II - SCOPE OF SERVICES As agreed upon between SURVEYOR and COUNTY, the SURVEYOR shall provide Professional Land Surveying services to complete all tasks as outlined in this Work Order No. 1; specifically detailed in the attached proposal Exhibit A. SECTION III — TIME FOR COMPLETION & DELIVERABLES/WORK PRODUCT 1. Project shall be completed as follows: a. 100% "Paper" review submittal (final review prior to request for final deliverables) shall be made within 90 calendar days of receipt of Notice to Proceed for review by County Staff prior to preparing the final submittal package. b. Time of FINAL project completion shall be within 10 calendar days of receipt of the County's review comments from the 100% "Paper Submittal". 2. Deliverables -The SURVEYOR shall provide the COUNTY: a. 100% Phase Submittal for COUNTY review and comment. All submittals shall include one (1) paper "hardcopy' along with AutoCad Files and an ASCII file for all 149 Post Hurricane Ian Beach Profile Surveying BCC Agenda October 11, 2022 Page 2 of 3 survey points. COUNTY shall strive to provide review comments within 10 calendar days of the preliminary submittal. b. FINAL Deliverables, one (1) paper "hardcopy" signed and sealed sets. Sheeted and model space (as applicable) AutoCad drawing file in release 2009 through Civil 3D 2013, PDF formats and an ASCII file for all survey points, all electronic files to be on CD. c. Survey set/sheets shall include a cover sheet with location sketch, survey certifications, related title and project number, survey notes, legend and abbreviations and plan view sheets. d. Work Product and digital versions are to be prepared and submitted so that the COUNTY or other consultants can readily use it for the design and analysis of the area, as defined. It shall contain all information necessary for third -party surveyor to independently recreate and/or utilize the survey work. It is acknowledged all final products become property of Indian River COUNTY and will be available for use by the public at large. e. The SURVEYOR'S work product shall meet or exceed the minimum standards as defined by Sections II, III and IV or the COUNTY will not approve the SURVEYOR'S request for payment. SECTION IV — COMPENSATION The COUNTY agrees to pay, and the SURVEYOR agrees to accept, for the above described services rendered as identified in Sections I, 11, 111 and IV of this Work Order No. 1, for a total lump sum fee of $60,000.00. All and/or any additional services not described hereon shall be pre -approved by the COUNTY. Approved additional services shall be invoiced at the rates disclosed in the approved fee schedule with the SURVEYOR for the contract year(s) of October 4, 2022 through October 3, 2024. All invoicing shall include Work Order No. 1 (WO 1), Contract Number (2022064). Payments shall be in accordance with the original Professional Surveying and Mapping Services Agreement, Contract No: 2022064 with the COUNTY and as stated in Section II, III and IV hereon. The AGREEMENT is hereby amended as specifically set forth herein. All remaining sections of the AGREEMENT shall remain in full force and effect, and are incorporated herein. 150 Post Hurricane Ian Beach Profile Surveying BCC Agenda October 11, 2022 Page 3 of 3 IN WITNESS WHEREOF the parties hereto have executed these presents this of 2022. OWNER Morgan and Eklund, Inc. BOARD OF COUNTY COMMISSIONERS INDIAN RIVER COUNTY, FLORIDA (Signature) Peter O'Bryan, Chairman Approved by BCC (Signature) (Printed name and title) ATTEST: Jeffrey R. Smith, Clerk of Court and Witnessed by: Comptroller (Seal) Deputy Clerk Approved: Jason E, Brown, COUNTY Administrator Approved as to Form and Legal Sufficiency: William K. DeBraal, Deputy COUNTY Attorney (Signature) day 151 NO INDIAN RIVER COUNTY, FLORIDA BOARD MEMORANDUM TO: Jason E. Brown, County Administrator THROUGH: Richard B. Szpyrka, P.E., Public Works Director THROUGH: Eric Charest, Natural Resources Manager SUBJECT: Hurricane Ian Storm Impact Assessments — Sectors 3, 5 and 7 DATE: October 3, 2022 DESCRIPTION AND CONDITIONS On April 17, 2018, the Board of County Commissioners (BCC) approved the Continuing Contract Agreement for Continuing Engineering Services with Aptim Environmental & Infrastructure, LLC (APTIM) for professional coastal engineering support services. The original contract was for three (3) years with an option for one (1) two-year extension at the County's discretion. This contract was renewed on May 18, 2021 for the two (2) year extension. Hurricane Ian passed to the west of Indian River County on September 28, 2022 before exiting the state through Brevard County to our north. Although the County was spared a direct hit from Hurricane Ian, the storm had significant impacts in the form of beach and dune erosion on much of the County's beaches. After exiting the state, Hurricane Ian continued to stir up high surf as it made its' way up the Atlantic coastline towards South Carolina. The increased wave activity and high surf created by Hurricane Ian in the Atlantic Ocean caused varying amounts of erosion to occur throughout the County's beaches, including areas where significant dune retreat was observed. The proposed Work Order No. 2018008-05 from APTIM provides the support with the County's efforts to coordinate for post -disaster relief funding from the FEMA Public Assistance Program (Category G) as related to the County's Sectors 3, 5 and 7 beaches. Under Work Order No. 2018008-05, APTIM will calculate volumetric and contour changes from beach surveys collected pre- and post -Hurricane Ian by the County's surveyor (Morgan and Eklund). A storm impact assessment report will be provided for each of the subject project areas which will include repair cost estimates and survey profile plots. Work Order No. 2018008-05 is anticipated to be completed within 60 days of the post -storm survey profiles which is to be collected by Morgan and Eklund under a separate Work Order. APTIM's cost for Work Order No. 2018008-05 is a fixed price of $22,500.00. FUNDING Funding for this expenditure will be from the Other Professional Services Hurricane Ian #DR4673, Account # 12814472-033190-22601. 152 Page 2 Post -Hurricane Ian Damage Assessment Reports October 11, 2022 BCC Agenda Item Account Name Account No. Amount Beach Restoration Fund/Other Professional Services Hurricane Ian #DR -4673 12814472-033190-22601 $22,500.00 RECOMMENDATION Staff recommends the Board of County Commissioners approve Work Order No. 2018008-05 in the amount of $22,500.00 for Hurricane Ian damage assessment reports for Sectors 3, 5 and 7 under the continuing services agreement with APTIM, and authorize the Chairman to sign the Work Order on behalf of the County. ATTACHMENTS 1. APTIM Work Order No. 2018008-05 2. Work Order No. 2018008-05 Agreement Execution APPROVED AGENDA ITEM FOR: October 11, 2022 153 September 30, 2022 Eric Charest, Natural Resource Manager Indian River County Public Works Coastal Division 180127 th Street Vero Beach, FL 32960 Aptim Environmental & Infrastructure, LLC 6401 Congress Avenue, Suite 140 Boca Raton, FL 33487 Tel: +1 561 361 3167 Fax: +1 561 391 9116 www.aptim.com Subject: Work Order 2018008-05 Hurricane Ian Storm Impact Assessments — Sectors 3, 5 and 7 Indian River County, FL Dear Eric: This proposal outlines a scope of work for Aptim Environmental & Infrastructure, LLC (APTIM) to provide storm impact assessments for the Sector 3, Sector 5, and Sector 7 project areas in Indian River County due to the impacts of Hurricane Ian, in support of the County's coordination with the Federal Emergency Management Agency (FEMA). The Sector 3 Beach Restoration Project (R-20 to R-55) was constructed in three phases from 2010 to 2012, subsequently renourished from R-24 to R-55 in the winter of 2014/15, and most recently renourished in two phases from the winter of 2020/2021 to the spring of 2022. The Sector 5 Dune Restoration Project (R-71 to R-85) was constructed in 2005 and 2006 following impacts from the 2004 and 2005 hurricanes and was renourished in the winter of 2019/20. The Sector 7 Beach Restoration Project (R-97 to R-108) was constructed in 2007, and easements are currently being obtained for the next nourishment. The Sector 3, Sector 5 and Sector 7 project areas were recently impacted by the passing of Hurricane Ian in late September 2022. As regularly maintained local- and State -funded engineered beach restoration projects, these projects may qualify for post -disaster relief funding from the FEMA Public Assistance Program (Category G). The following services will be provided to support the County's coordination with FEMA. Scope of Work Beach volumetric changes and contour changes will be calculated in the Sector 3, Sector 5, and Sector 7 project areas using surveys that were collected prior to and following the impact of Hurricane Ian. Beach profile transects were surveyed at the FDEP R -monuments by the County's surveyor, Morgan & Eklund, in Summer 2022 as part of the annual monitoring effort, which also represents the pre -storm condition. A post -storm survey will be performed by Morgan & Eklund under a separate work order to the County to document the most recent condition of the beach. Beach contour changes will be evaluated to document changes at the shoreline and the dune. Volumetric changes will be quantified above MHW (+0.6 ft NAVD) and above the depth of closure. If deemed technically appropriate, the background erosion rate for each project area will be extracted from the volume change results. The beach changes will be summarized with tables and graphical representations, and the losses due to the storm impact will be identified. Storm repair costs will be estimated and provided for preliminary information to FEMA. W11 3� APTIM September 29, 2022 Page 2 of 3 Deliverable A storm impact assessment will be provided in a brief report for each of the three project areas (Sector 3, Sector 5, and Sector 7). Each report will include background information regarding the project, a brief description of the storm, beach contour and volumetric changes, repair cost estimates, and survey profile plots. Schedule & Assumptions APTIM will provide the deliverable within 60 calendar days of receipt of Morgan & Eklund's certified post -storm survey data deliverable. It is assumed that the data provided by the County is considered final, has been processed and does not require additional review. Should a request for additional calculations or analysis be requested by FEMA following the three impact assessments, APTIM can provide a separate scope of work upon the request of the County. Cost The cost to complete this task is a fixed price of $22,500.00. This cost was developed following the provisions of the Continuing Contract Agreement for Continuing Engineering Services 2018008 (dated April 17, 2018 and amended May 18, 2021) between Indian River County and APTIM. Thank you for the opportunity to serve Indian River County. Please do not hesitate to call if you have any questions. Sincerely, Nicole S. Sharp, P.E. Coastal Market Lead Aptim Environmental & Infrastru ure, LLC cc: James Austin, APTIM 155 ,,APTIM A. APTIM EXHIBIT 2 Work Order 2018008-05 Hurricane Ian Post -storm Analysis Indian River County, FL Summary of Cost by Task REV20 t September 29, 2022 Page 3 of 3 Task Number Task Name Labor Sub- Mobilization/Trave Totals contractors I I Task 1 Secto, 3 Post -Storm Analysis S 8,560.00 S Totals r Hours ! Cost $ 8,560.00 Task 2 Sector 5 Post -Storm Analysis S 7,500.00 $ 7,500.00 Task 3 Secto, 7 Post -Storm Analysis S 6.440.00 S S $ 6,440.00 Totals = $ 22,500.00 $ $ $ 22,500.00 Submitted W. Nicole Sharp subrrl mea To: Indian River County, FL Submission Date: 9/29i2022 A, APTIM Work Order 2018008-05 Hurricane Ian Post -storm Analysis Indian River County, FL Summary of Labor Hours and Cost 2020-REV20 Labor Title Labor &II Rate Secbr 3 PostStonn Analysis Sector 5 Past -Stam Analysis; Task 7 Task 2 Labor Hous cost Hous Cost Sector? Pest -Storm Analysis Task 2 r Hours Cost Totals r Hours ! Cost Principal Engineer S 295.00 $I $ Program Manager S 215.00 14 $ 3,010.00 12 $ 2,580.00 ! 10 $ 2,15000 36 $ 7,740.00 Sr Coastal Englneer/Ptg Mno $ 195.00 _ $ $ $ $ Coastal Engneer 11 $ 165.00 s $ , s $ Coastal Engineer 1 $ 130.00 $ $ - is $ Coastal Engineer I $ 105.00 52 $ 5,460.001 46 $ 4,830.00 40 1 $ 4,200.00 138 $ 14,490.00 Coastal Modeler II $ 130.00 $ $ j $ $ SerrorCAD Operallor S 185.00 sM$7,500.00 $ $ CAD Operator s 110.00 $ $ $ GS Operator $ 120.00 $ $ j $ Clerical S 90.00 1 $ 90.00 90.00 1 $ 90.00 3 $ 270.00 Technician S 70.00 $ $ $ MoblizatiorvTravel s sub -Contractors - $ - _ _ $ _ TOTAL - 67 s 8,560.00 5 51 $ 6,440.00 177 S 22,500.00 Submitted By: Nicole Sharp submkred To: Indian River Canty, FL Ubmissbn MW -- 9/29/2022 156 WORK ORDER NUMBER 2018008-05 HURRICANE IAN DAMAGE ASSESSMENT REPORTS (SECTORS 3,5 & 7) This Work Order Number 2018008-05 is entered into as of this day of 2022 pursuant to the Continuing Contract Agreement for Continuing Engineering Services entered into as of April 17, 2018 ("Agreement"), and amended on May 18, 2021 for a 2 year extension on by and between Indian River County, a political subdivision of the State of Florida ("COUNTY") and Aptim Environmental and Infrastructure, LLC. ("CONSULTANT"). The COUNTY has selected the CONSULTANT to perform the professional services set forth on Exhibit 1, attached to this Work Order and made part hereof by this reference. The professional services will be performed by the CONSULTANT for the fee schedule set forth in Exhibit 1. The CONSULTANT will perform the professional services within the timeframe more particularly set forth in Exhibit 1, all in accordance with the terms and provisions set forth in the Agreement. Pursuant to paragraph 1.3 of the Agreement, nothing contained in any Work Order shall conflict with the terms of the Agreement and the terms of the Agreement shall be deemed to be incorporated in each individual Work Order as if fully set forth herein. IN WITNESS WHEREOF, the parties hereto have executed this Work Order as of the date first written above. CONSULTANT BOARD OF COUNTY COMMISSIONERS Aptim Environmental & Infrastructure, LLC. OF INDIAN RIVER COUNTY Un Title: Date: , P.E. Peter D. O'Bryan, Chairman Attest: Jeffrey R. Smith, Clerk of Court and Comptroller By: (Seal) Deputy Clerk Approved: By: Jason E. Brown, County Administrator Approved as to form and legal sufficiency: By: William K. DeBraal, Deputy County Attorney 157 •r CONSENT: 10/11/2022 Office of INDIAN RIVER COUNTY ATTORNEY Dylan Reingold, County Attorney William K. DeBraal, Deputy County Attorney Susan J. Prado, Assistant County Attorney MEMORANDUM TO: Board of County Commissioners FROM: Dylan Reingold, County Attorney DATE: October 5, 2022 SUBJECT: Resolutions Cancelling Taxes Resolutions have been prepared for the purpose of earmarking the public use of the following properties and cancelling any delinquent, omitted or current taxes which may exist on the properties obtained by Indian River County: Public Purpose: Right of Way Location/Description: 26a` Street, west of 98th Avenue Obtained from: Hugh Corrigan, II Family Limited Partnership, LLLP and J. Pat Corrigan Family Limited Partnership, LLLP Instrument: Warranty Deed, Book 3571, Page 1303 Public Purpose: Fire Station Property Location/Description: 26' Street, west of 98th Avenue Obtained from: Hugh Corrigan, II Family Limited Partnership, LLLP and J. Pat Corrigan Family Limited Partnership, LLLP Instrument: Warranty Deed, Book 3571, Page 1296 FUNDING: There is no cost associated with this item. im Board of County Commissioners October S, 2022 Page 2 RECOMMENDATION: Authorize the Chairman of the Board of County Commissioners to execute the Resolutions to cancel certain taxes upon the properties purchased by Indian River County for a public purpose, and the Clerk to send a certified copy of the Resolutions to the Tax Collector and the Property Appraiser so that any delinquent or current taxes can be cancelled. ATTACHMENT: Resolutions cc: Carole Jean Jordan - Tax Collector Wesley Davis - Property Appraiser we Obtained from Hugh Corrigan, II Family Limited Partnership, LLLP and J. Pat Corrigan Family Limited Partnership, LLLP Public Purpose: Fire Station Tax Parcel Portion of # 32383400000100000005.0 RESOLUTION NO. 2022- A RESOLUTION OF INDIAN RIVER COUNTY, FLORIDA, CANCELLING CERTAIN TAXES UPON PUBLICLY OWNED LANDS, PURSUANT TO SECTION 196.28, FLORIDA STATUTES. WHEREAS, section 196.28, Florida Statutes, allows the Board of County Commissioners of each County to cancel and discharge any and all liens for taxes, delinquent or current, held or owned by the county or the state, upon lands heretofore or hereafter conveyed to or acquired by any agency, governmental subdivision, or municipality of the state, or the United States, for road purposes, defense purposes, recreation, reforestation, or other public use; and WHEREAS, such cancellation must be by resolution of the Board of County Commissioners, duly adopted and entered upon its minutes properly describing such lands and setting forth the public use to which the same are or will be devoted; and WHEREAS, upon receipt of a certified copy of such resolution, proper officials of the county and of the state are authorized, empowered, and directed 1 160 RESOLUTION NO. 2022 - to make proper entries upon the records to accomplish such cancellation and to do all things necessary to carry out the provisions of section 196.28, F.S.; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA, that any and all liens for taxes delinquent or current against the following described lands which were purchased by Indian River County from Hugh Corrigan, II Family Limited Partnership, LLLP and J. Pat Corrigan Family Limited Partnership, LLLP, for fire station property, are hereby cancelled pursuant to the authority of section 196.28, F.S. See Warranty Deed, recorded in O.R. Book 3571, Page 1296 of the Public Records of Indian River County, Florida. The resolution was moved for adoption by Commissioner , and the motion was seconded by Commissioner , and, upon being put to a vote, the vote was as follows: Commissioner Peter D. O'Bryan Commissioner Joseph H. Earman Commissioner Susan Adams Commissioner Joseph E. Flescher Commissioner Laura Moss The Chairman thereupon declared the resolution duly passed and adopted this day of October, 2022. 2 161 RESOLUTION NO. 2022 - BOARD OF COUNTY COMMISSIONERS INDIAN RIVER COUNTY, FLORIDA 0 ATTEST: Jeffrey R. Smith, Clerk of Court and Comptroller M Deputy Clerk Peter D. O'Bryan, Chairman Tax Certificates Outstanding _ X Yes No Current Prorated Tax Received and Deposited with Tax Collector $ Approved as to form and legal sufficiency: By: Dylan Reingold County Attorney 3 162 Obtained from Hugh Corrigan, II Family Limited Partnership, LLLP and J. Pat Corrigan Family Limited Partnership, LLLP Public Purpose: Right of Way Tax Parcel Portion of # 32383400000100000005.0 RESOLUTION NO. 2022- A RESOLUTION OF INDIAN RIVER COUNTY, FLORIDA, CANCELLING CERTAIN TAXES UPON PUBLICLY OWNED LANDS, PURSUANT TO SECTION 196.28, FLORIDA STATUTES. WHEREAS, section 196.28, Florida Statutes, allows the Board of County Commissioners of each County to cancel and discharge any and all liens for taxes, delinquent or current, held or owned by the county or the state, upon lands heretofore or hereafter conveyed to or acquired by any agency, governmental subdivision, or municipality of the state, or the United States, for road purposes, defense purposes, recreation, reforestation, or other public use; and WHEREAS, such cancellation must be by resolution of the Board of County Commissioners, duly adopted and entered upon its minutes properly describing such lands and setting forth the public use to which the same are or will be devoted; and WHEREAS, upon receipt of a certified copy of such resolution, proper officials of the county and of the state are authorized, empowered, and directed 1 163 RESOLUTION NO. 2022 - to make proper entries upon the records to accomplish such cancellation and to do all things necessary to carry out the provisions of section 196.28, F.S.; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA, that any and all liens for taxes delinquent or current against the following described lands which were purchased by Indian River County from Hugh Corrigan, II Family Limited Partnership, LLLP and J. Pat Corrigan Family Limited Partnership, LLLP, for right of way, are hereby cancelled pursuant to the authority of section 196.28, F.S. See Warranty Deed, recorded in O.R. Book 3571, Page 1303 of the Public Records of Indian River County, Florida. The resolution was moved for adoption by Commissioner , and the motion was seconded by Commissioner , and, upon being put to a vote, the vote was as follows: Commissioner Peter D. O'Bryan Commissioner Joseph H. Earman Commissioner Susan Adams Commissioner Joseph E. Flescher Commissioner Laura Moss The Chairman thereupon declared the resolution duly passed and adopted this day of October, 2022. 2 164 RESOLUTION NO. 2022 - BOARD OF COUNTY COMMISSIONERS INDIAN RIVER COUNTY, FLORIDA ATTEST: Jeffrey R. Smith, Clerk of Court and Comptroller am Deputy Clerk Peter D. O'Bryan, Chairman Tax Certificates Outstanding —X Yes No Current Prorated Tax Received and Deposited with Tax Collector $ Approved as to form and legal sufficiency: By: Dylan Reingold County Attorney 3 165 INDIAN RIVER COUNTY, FLORIDA MEMORANDUM TO: Indian River County Board of County Commissioners THROUGH: Jason Brown, County Administrator FROM: Dan Russell, Information Technology Director SUBJECT: Approval to Piggyback USF Xerox Contract DATE: October 5, 2022 BACKGROUND: The Information Systems & Telecommunications Division reached out to the vendors who have existing contracts with the State of Florida and requested informal proposals from each. Xerox was determined to be the best fit due to pricing, serviceability of the machines, and the manufacture of their products in the U.S. As staff began working with Xerox to finalize terms, staff realized the pricing and options recommended by Xerox were not based on the State of Florida's authorized contract, which the County is eligible to piggyback directly. The Xerox representatives are recommending a contract awarded by the University of South Florida as the result of an invitation to negotiate. Because this contract was not formally solicited following the same procedures the County would use, and because the USF Board of Trustees did not make the award, which is the required equivalent of our Board making award (due to the anticipated dollar value of the contract), staff cannot approve the contract for piggybacking. Staff has reviewed pricing for the same services under other cooperative agreements that are eligible for piggybacking, and agree that the USF contract provides the best value to the County. 711.1971►[ Funding requirements will vary depending upon the equipment and accessories leased by each department. The contract pricing documents are extensive and available for review in the Purchasing Division. RECOMMENDATION Staff requests the Board waive the requirement for bids and authorize staff to piggyback the USF master agreement with Xerox for copiers, printers, multi -functional printers, and managed print services. Staff also recommends the Board authorize the Purchasing Manager to sign any associated individual leases and documents, after review and approval by the County Attorney as to form and legal sufficiency. ATTACHMENTS Xerox MSA ITN 17 -16 -MH - duly signed 061418 - FINAL Xerox Amendment # 1 - SignedUSF Xerox Amendment # 2 - USFSigned DISTRIBUTION Kristin Daniels, Director, Office of Management and Budget * Elisa Nagy, Director, Finance Randy King, Information Systems & Telecommunications Manager Jennifer Hyde, Purchasing Division Manager Department Directors 167 MASTER AGREEMENT BETWEEN XEROX CORPORATION AND THE UNIVERSITY OF SOUTH FLORIDA BOARD OF TRUSTEES, A PUBLIC BODY CORPORATE FL -University of So. Florida Master Agreement 1 11/24/2017 68 THIS MASTER AGREEMENT, including any Schedules attached hereto which are incorporated by reference, is effective as of 4th day of May, 2018 ("Effective Date"), by and between Xerox Corporation ("Xerox"), a corporation with its corporate offices at 201 Merritt 7, Norwa% CT 06851, and the University of South Florida Board of Trustees, a public body corporate, 4202 Fowler East Ave — SVC 4010, Tampa, FL 33620 ("University"). BACKGROUND A. This Agreement is done in accordance with the Invitation To Negotiate ITN -17 -16 -MH (the "ITN") that has been awarded to Xerox, and serves as a master agreement to enable Xerox and Customer and their respective Affiliates in different jurisdictions to contract with each other under this Master Agreement's terms and conditions. B. Xerox and Xerox Affiliates wish to provide Services and Products and Customer and Eligible Entities wish to procure Services and Products and may contract for such by incorporating the terms set forth herein and setting forth any additional terms as appropriate and required. C. Individual standalone transactions between Xerox and Xerox Affiliates and Customer and Eligible Entities (as applicable) for the acquisition of Products will utilize an Order. Orders may also include the provision of Maintenance Services and Consumables. D. The acquisition of Services will be done under the auspices of an Order, (i) for the Customer and its Direct Support Organizations, placed under a Services Contract that is established under the Services Module; or (ii) for Non -Affiliated Eligible Entities, placed under a Services Contract under a Services Agreement that is established using a Services Master Agreement signed by both parties and of the type included as the SMA Module herein. DEFINITIONS DEF 1. DEFINITIONS The following definitions apply unless otherwise specified in an Order. Any defined terms not specifically identified below shall have the meaning set forth in the Agreement. Affiliate(s) means a Xerox Affiliate(s) and/or an Eligible Entity(ies). Agreement means this agreement and any Schedules attached hereto. Application Software means software and accompanying Documentation specifically identified in an Order that allows Equipment or Third Party Hardware to perform functions beyond those enabled by its Base Software. Assessment means a written report including Xerox's recommendations and any applicable assessment of Customer's existing network and infrastructure and requirements, but excluding any Customer Confidential Information, as more fully described in an Order. Base Software means software and accompanying Documentation embedded, installed, or resident in Equipment that is necessary for operation of the Equipment in accordance with published specifications (i.e., operating system software). Cartridges means Equipment components designated by Xerox as customer -replaceable units, including copy or print cartridges and xerographic modules or fuser modules. Charges mean the fees payable by Customer for Services or Products as specified in the applicable Order. FL -University of So. Florida Master Agreement 2 11/24/2011 69 Confidential Information means information identified as confidential by the disclosing party which is provided by the disclosing party to the receiving party including, without limitation, trade secrets as defined by § 688.002(4), Florida Statutes. "Customer Confidential Information" means Confidential Information belonging to Customer and includes, without limitation, Customer Content. "Xerox Confidential Information" means Confidential Information belonging to Xerox and includes, without limitation, whether marked as such or not, any procedures manuals, Xerox Tools, Xerox Customer Tools and Xerox Intellectual Property. Consumables or Consumable Supplies vary depending upon the Equipment model, and include: (i) for black and white Equipment, standard black toner and/or dry ink, black developer, Copy Cartridges, and, if applicable, fuser agent required to make impressions; (ii) for full color Equipment, the items in (i) plus standard cyan, magenta, and yellow toners and dry inks (and their associated developers); and, (iii) for Equipment identified as "Phaser", only, if applicable, black solid ink, color solid ink, imaging units, waste cartridges, transfer rolls, transfer belts, transfer units, belt cleaner, maintenance kits, print Cartridges, drum Cartridges, waste trays and cleaning kits. Unless otherwise set forth in an Order, Consumable Supplies excludes paper and staples. Customer means University and Customer Direct Affiliate(s). Customer Assets means all hardware, software, assets, and facilities owned, leased, rented, licensed or controlled by Customer (including Existing Equipment and other equipment, fixtures, software, network and work space) and any services utilized by Customer that Customer makes available to Xerox to enable Xerox to provide Services or Products under an Order. Customer Confidential Information has the meaning set forth in Section DEF 1 (Confidential Information). Customer Content means documents, materials or data that Customer provides in hard copy or electronic format to Xerox, containing information about Customer or its clients, in order for Xerox to provide Services or Products under an Order. Customer Direct Affiliate means each of the Customer -identified "Direct Support Organizations" as defined by § 1004.28, Florida Statutes, that are authorized to order hereunder. Customer Facilities means those facilities controlled by Customer where Xerox performs Services or provides Products. Customer Intellectual Property means all intellectual property and associated intellectual property rights including patent, trademark, service mark, copyright, trade dress, logo and trade secret rights which exist and belong to Customer as of the Effective Date or that may be created by Customer after the Effective Date, excluding Xerox Confidential Information. Date of Installation means: (a) for Equipment (or Third Party Hardware) installed by Xerox, the date Xerox determines the Equipment (or Third Party Hardware) to be operating satisfactorily as demonstrated by successful completion of diagnostic routines and is available for Customer's use; and (b) for Equipment (or Third Party Hardware) designated as "Customer Installable," the Equipment (or Third Party Hardware) delivery date. Diagnostic Software means software embedded in or loaded onto Equipment and used by Xerox to evaluate or maintain the Equipment. Documentation means all manuals, brochures, specifications, information and software descriptions, in electronic, printed or camera-ready form, and related materials customarily provided by Xerox to customers for use with certain Products or Services. Effective Date means the date this Agreement goes into effect as set forth in the opening paragraph above. Eligible Entities mean both Customer Direct Affiliates and Non -Affiliated Eligible Entities. Equipment means Xerox -brand equipment. FL -University of So. Florida Master Agreement 3 11/24/201170 Excluded Taxes means (i) Taxes on Xerox's income, capital, employment, (ii) Taxes for the privilege of doing business, and (iii) personal property tax on Equipment rented or leased to Customer under this Agreement. Leased Equipment means Equipment that Xerox leases to a Customer under this Agreement and an Order. Maintenance Releases or Updates means new releases of the Base Software or Application Software that primarily incorporate coding error fixes and are designated as "Maintenance Releases." Maintenance Services means regularly scheduled or required maintenance of Equipment to keep the Equipment in good working order. Module means a specific set of terms and conditions. This Agreement is grouped into Modules. The GEN Module is applicable to all Services and Products provided hereunder, while the other Modules are applicable specifically to Services or to certain Product order types, as specified in this Agreement. Non -Affiliated Eligible Entity(ies) means an entity who is not a Customer Direct Affiliate and is authorized to order under this Master Agreement. Order means a document that Xerox requires for processing of orders for Services, Maintenance Services and/or Products hereunder, which may specify the contracting parties and location(s) where the foregoing will be provided; Customer's requested shipment date; the Products that Customer will purchase, lease, rent or license; the Services and/or Maintenance Services that Xerox will provide; the applicable Charges and expenses; the term during which the Services, Maintenance Services and/or Products described therein shall be provided; the Xerox -provided contract number; and any applicable SLAB. An Order may be in the form of a Xerox Order Agreement ("XOA"), a Services and Solutions Order ("SSO"), or a Customer -issued PO. A Statement of Work may be part of an Order for Services, but cannot function as a stand-alone ordering document. Output of Services means electronic images created by scanning tangible documents containing Customer Content, all full or partial copies (tangible and intangible) of Customer Content, and all Data, reports (other than Assessments) and other documentation, photographs, images, impressions, data and other materials (tangible and intangible) created by Xerox and delivered to Customer under an Order, but does not include Software, or Third Party Software, or Xerox Intellectual Property. Periodic Minimum Charge (sometimes referred to as "Monthly Minimum Charge", "MMC" or "Lease Minimum Payment") means a fixed, regularly -recurring charge that (along with any additional print charges) covers the cost for the Equipment's or Third Party Hardware's use and, for Equipment, Maintenance Services. The Periodic Minimum Charge may include, if applicable, a periodic minimum number of prints ("Minimum Prints"), meaning a fixed number of prints that are included as part of the Periodic Minimum Charge, and other amounts as agreed to including, but not limited to, Consumables, Software, Third Party Software, Services, lease buyout funds, monthly equipment component amounts from previous contracts, amounts being financed or refinanced, analyst services, and/or customer training. Privacy Laws means all applicable state, federal, and international laws relating to data privacy, trans -border data flows and data protection. Product means Software, Equipment, Third Party Products or Consumables supplied by Xerox. Purchased Equipment means Equipment or Third Party Hardware that Xerox sells to Customer under this Agreement and an Order. FL -University of So. Florida Master Agreement 4 11/24/20,171 Residuals means general ideas, concepts, know-how, methods, processes, technologies, techniques or information in non -tangible form, which may be retained in the unaided memory of persons who have had access to Confidential Information. Services means managed services (e.g. copy center and mailroom services), consultative services, and/or professional services, including, but not limited to, assessment, document management, and managed and centralized print services, as more fully described in the applicable Order. Standard back-office administrative and contract support functions, such as billing, contract management and order processing, are not Services, but are included in the pricing provided for the Services hereunder. Services Contract means one or more Orders having the same Services Contract number. Orders within a Service Contract are governed by the applicable terms and conditions of this Agreement and in each such Order. Service Level Agreements (or SLAB) means the levels of performance for the Services, if applicable, as set out in the applicable Order. Software means Base Software or Application Software. Supplier Equipment means Equipment or Third Party Hardware which is supplied by Xerox to the Customer during the term of an Order and which is subject to the Services described in the Order. Supplier Equipment may also be Leased Equipment or Purchased Equipment. Taxes means any and all taxes of any kind or nature, however denominated, imposed or collected by any governmental entity, including but not limited to federal, state, provincial, or local net income, gross income, sales, use, transfer, registration, business and occupation, value added, excise, severance, stamp, premium, windfall profit, customs, duties, real property, personal property, capital stock, social security, unemployment, disability, payroll, license, employee or other withholding, or other tax, of any kind whatsoever, including any interest, penalties or additions to tax or additional amounts in respect of the foregoing. Third Party Funds means funds Xerox provides to Customer to acquire Third Party Hardware or to license Third Party Software and/or to retire debt on existing Third Party Hardware. Third Party Hardware means non -Xerox brand equipment. Third Party Products means, collectively, Third Party Hardware and Third Party Software. Third Party Software means non -Xerox brand software. Transaction Taxes means any and all Taxes that are required to be paid in respect of any transaction and resulting Charges under this Agreement and any transaction documents, including but not limited to sales, use, services, rental, excise, transaction -based gross receipts, and privilege Taxes. Withholding Taxes means any and all Taxes or amounts that a Customer or Eligible Entity is required by applicable law to withhold or deduct from any Charge payable pursuant to this Agreement. Xerox Affiliate(s) means Xerox or the Xerox Affiliate(s) that contracts to provide Services or Products under this Agreement. Xerox Confidential Information has the meaning set forth in Section DEF 1 (Confidential Information). Xerox Customer Tools means certain proprietary software used to provide certain Services, and any modifications, enhancements, improvements thereto and derivative works thereof, that are licensed to Customer for their installation, use and access in accordance with the terms set forth in Section GEN 1.9(e). FL -University of So. Florida Master Agreement 5 11/24/201172 Xerox Intellectual Property means all of all intellectual property and associated intellectual property rights including patent, trademark, service mark, copyright, trade dress, logo and trade secret rights which exist and belong to Xerox as of the Effective Date or that may be created by Xerox after the Effective Date, excluding Customer Confidential Information. Xerox Products means Equipment, Xerox -brand Software, and Consumables leased, rented, licensed, or purchased pursuant to this Agreement. Xerox Tools means certain proprietary tools used by Xerox to provide certain Services, and any modifications, enhancements, improvements thereto and derivative works thereof. [Remainder of page left intentionally blank] FL -University of So. Florida Master Agreement 6 11/24/201173 GENERAL MODULE GEN 1. GENERAL The terms and conditions in this General (GEN) Module apply to acquisition of Services, Maintenance Services, and/or Products by Customer and Eligible Entities. GEN 1.1 Agreement Structure a. General Contract Structure. Xerox will provide, and Customer will procure, Services or Products in accordance with: (i) the terms and conditions stated in this Agreement; (ii) the terms set forth in a Services Contract or an individual Order. b. Affiliates. Xerox and its Affiliates may sell Services and Products under this Agreement; however, of Xerox's Affiliates, only Zeno Office Solutions may sell Services and Products to the University and its Direct Support Organizations. The University and its Direct Support Organizations, who have been identified at the website listed in GEN L Lb.i below, as well as Non -Affiliated Eligible Entities, may acquire Services and Products under this Agreement. If a Xerox Affiliate and an Eligible Entity enter into an Order, they shall be considered "Xerox" and "Customer", respectively, for the purposes of that Order, and receive the rights and benefits and undertake the responsibilities as Xerox and the Customer, respectively, under this Agreement. i. http://www.usf.edu/business-finance/purchasinp-/resources/dso.aspx C. Orders. Orders shall specify: i. the contracting Xerox Affiliate and Customer, and location(s) where the Services or Products will be provided; ii. the Products and Services that Xerox will provide; iii. the applicable Charges; iv. any terms and conditions in addition to (and permitted as deviations from or supplements to) those specified in this Agreement; V. the term during which the Services or Products described therein shall be provided; and vi. a description of the responsibilities of each party with regard to the Services or Products to be provided. Orders must reference this Agreement by name or assigned contract number in order to be incorporated herein. Xerox may accept an Order by either by its signature or by commencing performance. Orders may be submitted by hard copy or electronic means (where acceptable to the Xerox Affiliate agreeing to and receiving the Order) and those submitted electronically will be considered: (i) a "writing" or "in writing"; (ii) "signed" by the Customer; (iii) an "original" when printed from electronic records established and maintained in the ordinary course of business; and (iv) valid and enforceable. Xerox reserves the right to review and approve the applicable Customer's credit prior to acceptance of an Order, and the applicable Customer authorizes the applicable Xerox Affiliate or its agent to obtain credit reports from commercial credit reporting agencies. d. Purchase Orders. Customer may issue purchase orders to Xerox for order entry purposes only, specifying the requested shipment date, installation site, quantities, bill -to address, description of Products to be delivered and term, and, if applicable, FL -University of So. Florida Master Agreement 7 11/24/201174 Trade -In Equipment. Such purchase orders shall reference the Agreement by name or number, incorporate and be subject solely to this Agreement's terms and conditions, and any applicable Order hereunder, notwithstanding anything contained in such purchase order at variance with or in addition to this Agreement and any applicable Order. Any purchase order that meets the foregoing requirements shall be considered an Order hereunder. e. Modules Incorporated by Reference. Orders shall incorporate the terms and conditions of respective Modules hereunder as set forth in the chart below: GEN 1.2 Charges and Payment a. Charges. Charges for the particular Services and Products will be as agreed to by the parties and set forth in an Order, and are exclusive of any and all Transaction Taxes. Xerox's then current overtime rates will apply to services requested and performed outside Customer's standard working hours. b. Invoices. i. Payment. If the invoice displays a due date, payment must be received by Xerox on or before the due date. If the invoice does not display a due date, payment must be received by Xerox within thirty (30) days after invoice receipt, which is deemed to occur three (3) days from the invoice date. Customer agrees to pay Xerox all undisputed amounts due under each invoice via P -card, check, Automated Clearing House debit, Electronic Funds Transfer, or direct debit from Customer's bank account. Restrictive covenants on instruments or documents submitted for or with payments will not reduce Customer's obligations. ii. Disputes. If Customer disputes any amount included in an invoice, then (a) Customer must notify Xerox of the dispute in writing, (b) such notice shall include a description of the item(s) Customer is disputing and the reason such item is being disputed; and (c) Customer shall promptly exercise its best efforts to work with Xerox to resolve such dispute and pay undisputed amounts in accordance with subsection (i) above. Regular recurring monthly Charges (such as Lease Minimum Payments for standalone lease transactions and Monthly Minimum Charges for Services transactions), shall not be subject to dispute at any time. FL -University of So. Florida Master Agreement 8 11/24/201175 MASTER AGREEMENT MODULE APPLICABILITY BASED ON NATURE OF SOLUTION BEING OFFERED GEN SVC EQP EL EP SW MS SMA Applies Applies Applies Applies Applies Applies Applies Applies Product On Lease I X X X X X Purchase, with Maintenance Services X X X X X Purchase, without Maintenance Services X X X X Maintenance Services Only X X X Services (Customer/Customer Direct Affiliate) tr cludes Product X X X X X Does Not Include Product X X Services (Customer Indirect Affiliate) X GEN 1.2 Charges and Payment a. Charges. Charges for the particular Services and Products will be as agreed to by the parties and set forth in an Order, and are exclusive of any and all Transaction Taxes. Xerox's then current overtime rates will apply to services requested and performed outside Customer's standard working hours. b. Invoices. i. Payment. If the invoice displays a due date, payment must be received by Xerox on or before the due date. If the invoice does not display a due date, payment must be received by Xerox within thirty (30) days after invoice receipt, which is deemed to occur three (3) days from the invoice date. Customer agrees to pay Xerox all undisputed amounts due under each invoice via P -card, check, Automated Clearing House debit, Electronic Funds Transfer, or direct debit from Customer's bank account. Restrictive covenants on instruments or documents submitted for or with payments will not reduce Customer's obligations. ii. Disputes. If Customer disputes any amount included in an invoice, then (a) Customer must notify Xerox of the dispute in writing, (b) such notice shall include a description of the item(s) Customer is disputing and the reason such item is being disputed; and (c) Customer shall promptly exercise its best efforts to work with Xerox to resolve such dispute and pay undisputed amounts in accordance with subsection (i) above. Regular recurring monthly Charges (such as Lease Minimum Payments for standalone lease transactions and Monthly Minimum Charges for Services transactions), shall not be subject to dispute at any time. FL -University of So. Florida Master Agreement 8 11/24/201175 Late Payment. i. For any payment not received by Xerox within ten (10) days after the due date, Xerox may charge, and Customer agrees to pay, interest at a rate established pursuant to § 55.03(1), Florida Statutes, and Non -Affiliated Eligible Entities agree to pay the highest rate allowed by applicable law, or, absent such law, the rate of 1.5% per month, as reasonable collection costs. ii. Neither party shall withhold or set-off any payment due to the other party under this Agreement or any Order, or any other agreement against any actual or alleged claim such party may have against the other under this Agreement or any Order, or any other agreement between the parties. GEN 1.3 Taxes a. Charges are exclusive of any and all Transaction Taxes. Unless Xerox has received proof of Customer's tax exempt status, Customer will be responsible for all Transaction Taxes. Transaction Taxes will be included in Xerox's invoice. Customer shall not be responsible for Excluded Taxes. If a taxing authority determines that Xerox did not collect all Transaction Taxes, Customer shall remain liable to Xerox for such additional Transaction Taxes until six (6) months after the expiration of the statute of limitations (as extended) for such Transaction Tax. b. The State of Florida, and Customer as a state agency, is a tax immune sovereign and exempt from the payment of all sales, use or excise taxes. Xerox shall pay all personal property taxes on leased equipment, if applicable, and all taxes based upon net income. C. Xerox and Customer each agree to take commercially reasonable steps to cooperate with each other in order to minimize Taxes (including Transaction Taxes and Withholding Taxes) imposed with respect to the transactions contemplated by this Agreement to the extent permissible under applicable law. GEN 1.4 Mainframe Equipment Rebate Within sixty (60) days following the end of each calendar quarter, Xerox will pay an incentive rebate to the Customer for all mainframe units of Equipment installed hereunder in that quarter. The rebate will be equal to six percent (6%) of the "load price" (with such "load price" being the USF Purchase Price, as shown in the related Major Account Lease Pricing Exhibit) for all such Equipment. GEN 1.5 Notices Any notice, report, approval or consent required or permitted hereunder shall be in writing and will be deemed to have been given upon receipt or refusal if: (i) delivered personally, by courier or by express service; (ii) mailed by registered or certified mail postage prepaid; or (iii) sent by facsimile followed by a hard -copy confirmation, to the respective addresses of the parties set forth below or as may be otherwise designated by like notice from time to time. If to Xerox: Xerox Corporation 1511 N Westshore Blvd Suite 225 Tampa, FL 33607 Attention: Christopher McPherson Telephone: 813-636-4509 With a copy to: Xerox Corporation 45 Glover Avenue Norwalk, CT 06856 Attention: Office of General Counsel FI. -University of So. Florida Master Agreement 9 11/24/2011 76 If to Customer: University of South Florida 4202 East Fowler Ave — SVC 4010 Tampa, FL 33620 Attention: Carl Smith Telephone: (813) 974-1047 Email: techcontracts(a,usf.edu With a copy to: Lori Stevens (813)974-6627 itpurchasingga usf.edu Invoices are not considered notices under this Agreement and are governed by provisions relating specifically thereto. GEN 1.6 Mutual Responsibilities Each party agrees: a. that neither party grants the other party the right to use its trademarks, trade dress, service marks, trade names, or other designations in any promotion or publication; b. each party grants the other only the licenses and rights explicitly set forth herein or in an Order and no other licenses or rights (including licenses or rights under patents, copyrights or other intellectual property) are granted; and C. unless otherwise set forth in an Order, in the event of a disassociation of a Direct Support Organization, Customer shall notify Xerox in writing and such disassociated Direct Support Organization will not be allowed to enter into subsequent or new Orders; however, Products installed or Services being provided to such disassociated entity under an existing Order shall retain the pricing and terms and conditions thereof until the Order's initial term expires. GEN 1.7 Customer Responsibilities Customer agrees to perform its responsibilities under this Agreement and the applicable Order in support of the Services or Products in a timely manner. Customer agrees: a. that Products acquired hereunder are ordered for Customer's own business use (rather than resale) and will not be used for personal, household or family purposes; b. to provide Xerox with timely and sufficient access to Customer Facilities, including network access where reasonably required, for Xerox to fulfill its obligations and provide Services or Products under an Order and to ensure that Customer Facilities are safe for Xerox personnel to work in and fully comply with all applicable laws and regulations; C. to permit Xerox to use or access Customer Assets, in each case as needed by Xerox to perform Services or provide Products under an Order, and will grant Xerox sufficient rights to use, access and, if agreed, modify the same; d. to bear the costs of providing access to and use of the Customer's Facilities and Customer Assets, without charge to Xerox; FL -University of So. Florida Master Agreement 10 11/24/20177 e. to acquire or continue maintenance, repair and software support services, without charge to Xerox, for all Customer Assets that Customer permits Xerox to use or access; f. to provide Xerox with access to appropriate members of Customer personnel, as reasonably requested by Xerox, in order for Xerox to perform the Services or provide Products; g. to respond to and provide such documentation, data and other information as Xerox reasonably requests in order for Xerox to perform the Services or provide Products; h. to contract for the minimum types and quantities of Equipment and Consumables required by Xerox to perform the Services (as set out in the applicable Order); i. that, as between Xerox and Customer, Customer alone is responsible for backing up its Customer Content and Xerox shall not be responsible for Customer's failure to do so. that Xerox is not responsible for determining whether Customer Content that may be provided to Xerox for duplication, scanning or imaging may be duplicated, scanned, or imaged without violating a third party's intellectual property rights. GEN 1.8 Warranties a. Mutual Warranties. Each party represents and warrants to the other, as an essential part of this Agreement, that: i. it is duly organized and validly existing and in good standing under the laws of the state of its incorporation or formation; ii. this Agreement has been duly authorized by all appropriate action for execution; iii the individuals signing this Agreement are duly authorized to do so; iv. to its knowledge, it is under no obligation or restriction and will not assume any such obligation or restriction, that does or would in any way interfere or conflict with or would present a conflict of interest concerning the obligations set forth under this Agreement; and V. it will comply with all laws applicable to the performance of its obligations under this Agreement. b. Xerox Warranties. Services Warranty. Xerox warrants to the Customer that the Services and Maintenance Services will be performed in a professional and workmanlike manner by Xerox personnel with appropriate training, experience and skills in accordance with the applicable Order. If the Services or Maintenance Services do not meet specifications, Customer will notify Xerox in writing detailing its concerns and, within 10 days following Xerox's receipt of such notice, Xerox and Customer will meet, clarify the Customer's concern(s) and begin to develop a corrective action plan. As Customer's exclusive remedy for Xerox's non-compliance: (a) if a specific remedy is set out in a particular Order, that remedy shall apply; (b) if no specific remedy applies, Xerox will correct the failure within sixty (60) days of finalizing the plan, or in such other time period FL -University of So. Florida Master Agreement 11 11/24/201178 agreed to in writing by the parries. If Xerox fails to correct the failure within the stated timeframe, Customer may terminate the affected portions of the Services, Maintenance Services, and/or related Products. ii. Equipment Warranty. Any Equipment warranty to which Customer is entitled shall commence upon the Date of Installation. Use by Customer of consumables not approved by Xerox that affect the performance of the Equipment may invalidate any applicable warranty. iii. Third Party Product Warrant. Where Xerox in its sole discretion selects and supplies Third Party Products, Xerox warrants they will operate substantially in conformance with applicable SLAB or other requirements in the Order. Customer's sole remedy for breach of this warranty is to return the Third Party Product to Xerox and then receive a refund of any fees paid for such non -conforming Third Party Product, less a reasonable usage fee. If Customer requests a specific Third Party Product, Xerox will pass- through as permitted any third party warranties. iv. Exclusions. Xerox shall not be responsible for any delay or failure to perform the Services or provide Products, including meeting specifications or achieving any associated SLAB and other activities in the applicable Orders, to the extent that such delay or failure is caused by: (a) the Customer's failure or delay in performing its responsibilities under this Agreement or the respective Order, (b) reasons outside Xerox's reasonable control, including Customer Assets, Customer Content, or delays or failures by Customer's agents, suppliers or providers of maintenance and repair services for Customer Assets; or (c) unauthorized modifications to Equipment, Third Party Hardware, Existing Equipment or the Output of Services. V. Disclaimer. (a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT AND ANY ORDER HEREUNDER ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND XEROX DISCLAIMS AND CUSTOMER WAIVES ALL OTHER WARRANTIES INCLUDING ANY WARRANTY OF MERCHANTABILITY, NON -INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. (b) The warranties set forth in this Agreement and any Order hereunder are expressly conditioned upon the use of the Services, Products and Output of Services for their intended purposes in the systems environment for which they were designed and shall not apply to any Services, Products or Output of Services which have been subject to misuse, accident, alteration or modification by the Customer or any third party. GEN 1.9 Intellectual Property Ownership a. Customer Intellectual Property. Ownership of and title to all Customer Intellectual Property will remain with Customer. Customer grants to Xerox a non- exclusive, royalty -free, fully -paid up, worldwide license to use Customer FL -University of So. Florida Master Agreement 12 11/24/201479 Intellectual Property only for purposes of providing Services or Products under this Agreement or an Order. Xerox shall not use Customer Intellectual Property for any other purpose. Xerox agrees not to decompile or reverse engineer any Customer Intellectual Property. Except as expressly set forth in this Agreement, no rights to any Customer Intellectual Property are granted to Xerox. b. Xerox Intellectual Property. Ownership of and title in and to all Xerox Intellectual Property will remain with Xerox or its licensors. Customer shall not use Xerox Intellectual Property for any purpose except as expressly set forth in this Agreement or in an Order. Customer agrees not to decompile or reverse engineer any Xerox Intellectual Property. Except as expressly set forth in this Agreement, no rights to any Xerox Intellectual Property are granted to Customer. C. Ownership of Output of Services and License to Xerox Intellectual Property. Except to the extent that the Output of Services may incorporate any Xerox Intellectual Property, the Output of Services shall be the sole and exclusive property of Customer, and Xerox shall gain no rights therein, except as may be required for Xerox to perform Services. Xerox hereby assigns, grants, conveys, and transfers to Customer all rights in and to the Output of Services (excluding any incorporated Xerox Intellectual Property). To the extent that the Output of Services may incorporate any Xerox Intellectual Property, Xerox grants Customer a non- exclusive, perpetual (subject to revocation for default under this Agreement or the applicable Order), fully paid-up, worldwide right to use, display and reproduce the Xerox Intellectual Property only as required for use of the Output of Services for Customer's customary business purposes and for the purpose set forth in the applicable Order and not for resale, license or distribution outside of Customer's organization. d. Xerox Tools. Xerox Tools may be used by Xerox to provide certain Services. Xerox and its licensors will, at all times, retain all right, title and interest in and to the Xerox Tools and, except as expressly set forth herein, no rights to Xerox Tools are granted to Customer. Xerox Tools will be installed and operated only by Xerox or its authorized agents. Customer will not decompile or reverse engineer any Xerox Tools. Customer will have access to data and reports generated by the Xerox Tools and stored in a provided database as set forth in the applicable Order, but Customer will have no rights to use, access or operate the Xerox Tools. Xerox may remove the Xerox Tools at any time in its sole discretion, provided that the removal of Xerox Tools will not affect Xerox's obligations to perform Services, and Customer shall reasonably facilitate such removal. e. Xerox Customer Tools. Xerox grants to Customer a non-exclusive, non- transferable, non -assignable (by operation of law or otherwise) license to install, use and access the Xerox Customer Tools only for the purpose of receiving the Services for which they were provided. Customer has no other rights to the Xerox Customer Tools and, in particular, may not: (i) distribute, copy, modify, create derivatives of, decompile, or reverse engineer the Xerox Customer Tools, except as permitted by applicable law; or, (ii) allow others to engage in same. Title to the Xerox Customer Tools and all copyrights and other intellectual property rights in it shall, at all times, reside solely with Xerox and its licensors. Certain Xerox Customer Tools may be subject to mandatory third party flow -down terms and conditions, which will be provided separately with the applicable Xerox Customer Tool(s). f. Data Collection and Use. When the Xerox Tools or Xerox Customer Tools are installed on Customer's network, the Xerox Tools or Xerox Customer Tools automatically collect data ("Data") from all of the Equipment and Third Party FL -University of So. Florida Master Agreement 13 11/24/2017A 80 Hardware that appear on Customer's network or are locally connected to another device on Customer's network. The Data is transmitted to a remotely hosted server that hosts those Xerox Tools that perform analysis and reporting functions. Data may include, but is not limited to, product registration, meter read, supply level, device configuration and settings, software version, and problem/fault code data. The automatic data transmission capability will not allow Xerox to read, view or download the content of any of Customer's documents residing on or passing through the Equipment or Third Party Hardware or Customer's information management systems. Data may be used by Xerox for billing, report generation, supplies replenishment, ongoing and future site optimization and product improvement purposes. GEN 1.10 Indemnification a. General Indemnification. Xerox (and its Affiliates) and, to the extent allowed by applicable law, Customer shall indemnify, defend and hold harmless the other parry and respective officers, directors, employees, agents, successors and assigns, from and against all claims by a third party for losses, damages, costs or liability of any kind (including expenses and reasonable legal fees) that a court finally awards such party ("Claims") for bodily injury (including death) and damage to real or tangible property to the extent proximately caused by the indemnifying party (or its Affiliates') negligent acts or omissions or willful misconduct, in connection with this Agreement or any Order hereunder. Nothing in this Agreement shall be construed as an indemnification of Xerox by Customer. Customer warrants and represents that as a sovereign entity, it is self-insured. Customer assumes any and all risk of personal injury and property damage attributable to the negligent acts or omissions of Customer and the officers, employees, and servants thereof while acting within the scope of their employment by Customer. Xerox and Customer agree that nothing contained herein shall be construed or interpreted as (a) the consent of Customer and State of Florida, their agents and agencies to be sued except as provided for herein; or (b) a waiver of sovereign immunity by Customer and the State of Florida beyond that provided in § 768.28, Florida Statutes. b. Intellectual Property Infringement Indemnification. i. Xerox Indemnification. Xerox shall indemnify, defend and hold harmless Customer, and their respective officers, directors, employees, agents, successors and assigns, for all Claims that Xerox Products, Output of Services (excluding Customer Content), or Services ("Indemnified Items') infringe a third party's patent or copyright or other intellectual property rights or otherwise misappropriates a third party's intellectual property. However, Xerox shall have no obligation under this subsection to the extent any Claim is based on or arises out of any: (1) modification or alteration to such Xerox Products, Output of Services or Services not approved in writing by Xerox; (2) any combination or use of the Xerox Products, Output of Services, or Services with any product, service, data, or apparatus that Xerox did not provide, or was not approved in writing by Xerox, if such combination forms the basis of such Claim; (3) use of the Xerox Products, Output of Services, or Services not in accordance with the applicable Documentation; (4) Customer's failure to use corrections or enhancements to the Xerox Products, Output of Services, or Services provided by Xerox, if such failure forms the basis of such Claim; (5) Services performed using Customer Assets, Customer Content or other materials provided to Xerox by Customer for which Customer failed to FL -University of So. Florida Master Agreement 14 11/24/201181 provide sufficient rights to Xerox; or (6) Products or Services infringement resulting from Customer's direction, specification, or design. If a Claim is made or appears likely to be made, Customer agrees to permit Xerox, at Xerox's sole option and expense, to obtain the right to enable Customer to continue to use such Indemnified Items, to make them non - infringing or to replace them with items that are at least functionally equivalent. If Xerox determines that none of these alternatives is reasonably available, Customer agrees to return such Indemnified Items to Xerox upon Xerox's written request. Xerox will then give Customer a credit equal to the amount Customer paid Xerox for such Indemnified Items, less a reasonable usage fee. C. Indemnification Procedures. The indemnification obligations set forth above in subsections GEN 1.10(a) and (b) are subject to the following: i. Customer shall give Xerox prompt written notice of any Claim for which it seeks indemnification and provide copies of such Claim and any documents relating to the action that is the basis of the Claim; ii. Xerox shall have sole control over the defense and settlement of such Claim, provided that the Customer shall be entitled to participate in the defense of such Claim and to employ counsel at its own expense to assist in the handling of such Claim; iii. Customer shall provide all reasonable cooperation requested by Xerox in order to properly defend such Claim at Xerox's own expense; iv. Xerox shall obtain the prior written approval of the Customer before entering into any settlement of such Claim, if such settlement would adversely affect any rights of or impose any obligation or liability on the Customer; and V. any failure or delay to notify Xerox under Section GEN 1.10(c)(i) above shall not relieve Xerox of its obligations under this Agreement or the respective Order except to the extent the failure or delay is materially prejudicial to Xerox's defense of the claim. GEN 1.11 Limitation of Liability Except as prohibited by law, the following limitations apply: a. NO CONSEQUENTIAL DAMAGES. SUBJECT TO SECTION GEN 1.11.c., IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND INDEMNITY) OR OTHERWISE, AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. b. LIMITATION ON RECOVERY. SUBJECT TO SECTION GEN 1.11.c., THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY (AND ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS) FOR DIRECT DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND INDEMNITY), OR OTHERWISE, WILL BE FL -University of So. Florida Master Agreement 15 11/24/2011 82 LIMITED TO AN AMOUNT EQUAL TO THE LESSER OF THE AMOUNT OF ALL CHARGES PAID BY CUSTOMER TO XEROX UNDER THE ORDER UNDER WHICH THE CLAIM AROSE (LESS PASS THROUGH EXPENSES SUCH AS, WITHOUT LIMITATION, POSTAGE) IN THE TWELVE (12) MONTHS PRIOR TO THE DATE UPON WHICH THE CLAIM AROSE OR $200,000. THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT AND ANY ORDERS HEREUNDER WILL NOT ENLARGE OR EXTEND THIS LIMITATION OF DAMAGES. NOTWITHSTANDING THE FOREGOING, NOTHING SET FORTH IN THIS SECTION GEN 1.11.b. SHALL LIMIT CUSTOMER'S OBLIGATION TO PAY XEROX ALL CHARGES AND EXPENSES FOR PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT. C. EXCEPTIONS. THE LIMITATIONS SET FORTH IN SECTION GEN 1.11 SHALL NOT APPLY WITH RESPECT TO: EITHER PARTYS WILLFUL MISCONDUCT OR FRAUD; ii. A PARTY EXCEEDING ITS RIGHTS, IF ANY, TO THE OTHER PARTY'S INTELLECTUAL PROPERTY OR MISAPPROPRIATING OR INFRINGING THE OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS AS GRANTED UNDER THIS AGREEMENT. IN SUCH CASE, CUSTOMER'S LIABILITY SHALL NOT EXCEED $200,000 PER CLAIMANT OR $300,000 IN AGGREGATE. GEN 1.12 Term and Termination a. Term. This Agreement shall commence on the Effective Date and continue for a term of five (5) years. The Customer may renew this Agreement for two additional one (1) year periods upon written notice at least sixty (60) days prior to the upcoming expiration. Each Order hereunder shall have its own term. In the event the Agreement expires or is terminated, each Order in effect at such time shall remain in full force and effect until the end of its term (including any extensions or renewals thereof) and shall at all times be governed by, and be subject to, the terms and conditions of this Agreement as if the Agreement were still in effect. Termination of any Order shall not affect this Agreement or any other Orders then in effect. b. Termination for Cause This Agreement may be terminated by either party immediately, or on expiration of the notice period specified in the notice, by written notice to the other party: i. if the other party commits a material breach of this Agreement (other than as set forth in subsections ii. and iii. below) that is capable of being remedied and such breach is not remedied within thirty (30) days following the service of written notice related thereto; ii. if Xerox is the party in material breach and the material breach relates to the Services, Xerox shall have 60 days to cure the material breach; iii. if Xerox does not receive any payment within fifteen (15) days after the date it is due, in which case Customer will be considered to be in default; or iv. if the other party commits a material breach of this Agreement that is not capable of being remedied;. C. Survival. In the event of any termination or expiration of this Agreement, any terms and conditions of this Agreement which by their nature extend beyond termination or expiration of the Agreement will remain in effect until fulfilled, and apply to the parties' and their respective successors and assigns. FL -University of So. Florida Master Agreement 16 11/24/201183 GEN 1.13 Confidentiality a. Obligation. Customer and Xerox acknowledge that, during the term of this Agreement and any Order hereunder, each party may be provided with or have access to, certain Confidential Information belonging to the other party. The parties will ensure that their employees comply with their respective corporate policies and procedures regarding the disclosure of Confidential Information. The parties agree to use the Confidential Information provided under this Agreement only for purposes directly related to the performance of obligations under this Agreement. The receiving party may not disclose Confidential Information to any third party unless such third party has a need to know such Confidential Information in order to perform under this Agreement and has agreed in writing to be bound by terms no less restrictive than those set forth herein. Each party shall be responsible for any breaches of the obligations in this Section by such third parties or employees. The receiving party shall protect the disclosing party's Confidential Information with the same degree of care that it uses to protect its own confidential information of like importance, but not less than reasonable care. Xerox may disclose the identity and address of Customer to Xerox's third party licensors if required for royalty reporting purposes. b. Unilateral Cancellation/Public Records Law. Notwithstanding any confidentiality provisions in this Agreement, as an agency or subdivision of the State of Florida, Customer is subject to Chapter 119, Florida Statutes ("Florida Public Records Act"). As such, this Agreement and all associated materials and information may be considered a "public record." While Customer will endeavor not to voluntarily disclose this Agreement or other associated information, it reserves the absolute right to interpret its legal obligations under the Florida Public Records Act. Any necessary disclosure of this Agreement or any other information pursuant to a public records request shall not be considered a breach of any confidentiality provisions. Further, Xerox may be considered a contractor of a public agency as defined in § 119.0701(1)(b), and may be required by law to keep and maintain public records related to its services; provide copies of, or allow inspection of, such public records to Customer upon request; and ensure that exempt or confidential and exempt records are not disclosed except as authorized by law. Upon completion of this Agreement or performance of the services, Xerox may transfer all public records related to the services to Customer, at no cost to Customer, or may keep such public records in accordance with the applicable state record retention requirements. If Xerox chooses to transfer such records to Customer, Xerox shall destroy any duplicate records in its possession that are exempt or confidential and exempt from disclosure. CUSTOMER CANNOT PROVIDE LEGAL ADVICE TO XEROX REGARDING ITS LEGAL DUTIES. HOWEVER, XEROX MAY CONTACT CUSTOMER'S CUSTODIAN OF PUBLIC RECORDS AT USFPURCHASINGAUSF.EDU OR 813-974-2481 IF XEROX HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES TO XEROX'S DUTY TO PROVIDE AND MAINTAIN PUBLIC RECORDS RELATING TO THIS AGREEMENT. Customer may unilaterally cancel the Agreement for refusal by Xerox to comply with the provisions of Chapter 119, Florida Statutes. FL -University of So. Florida Master Agreement 17 11/24/201184 C. Exclusions. The obligations of confidentiality will not apply to any Confidential Information that: (i) was publicly available prior to, at the time of, or subsequent to the date of disclosure through no fault of the receiving party; (ii) was rightfully in the receiving party's possession or the possession of any third party free of any obligation of confidentiality; or (iii) was developed by the receiving party's employees or agents independently of and without reference to any of the disclosing party's Confidential Information. d. Return of Information. Upon termination or expiration of an Order or Services Contract, except as otherwise set forth in this Agreement, the receiving party will deliver or return to the disclosing party, or destroy (at the disclosing party's request) all Confidential Information of the disclosing party that is related to such terminated or expired Order or Services Contract and is in the possession of the receiving party; provided, however, that terms regarding removal of Customer Confidential Information stored on hard drives on Equipment owned by Xerox, and any costs associated with such removal, will be set forth in the applicable Order. e. Duration of Confidentiality Obligation. The obligations set forth in this Section shall continue for 1 year after termination or expiration of this Agreement or the Order under which such Confidential Information was disclosed, whichever occurs later. Notwithstanding the foregoing, unless one or more of the exclusions in Section GEN 1.13(b) applies, the Customer's confidentiality obligations with respect to Xerox Intellectual Property, Xerox Tools and Xerox Customer Tools shall continue so long as they continue to be trade secrets as defined by § 688.002(4), Florida Statutes, as applicable. f. Customer Technical Confidential Information. The parties do not intend for Customer to disclose confidential technical information, which includes, but is not limited to, computer programs, source code and algorithms, and Customer will only disclose such information under a separate negotiated non -disclosure agreement. g. Residual Rights. Each party understands that the other party shall be free to use, for any purpose, the Residuals resulting from access to Confidential Information as a result of the performance of its obligations under an Order, provided that such party shall maintain the confidentiality of such Confidential Information as provided herein. Neither party shall pay royalties for any work resulting from the use of Residuals. However, the foregoing shall not be deemed to grant either party a license under the other's copyrights or patents. GEN 1.14 Data Protection/Privacy a. Customer as Controller. The parties acknowledge and agree that Customer will be the controller of the Customer Content for purposes of all Privacy Laws, with rights to determine the purposes for which the Customer Content is processed and, so long as not inconsistent with, or an expansion of, Xerox's Services obligations hereunder, the means of processing, and nothing in this Agreement will restrict or limit in any way Customer's rights or obligations as owner or controller of the Customer Content. As such controller of the Customer Content, Customer directs Xerox to process the Customer Content exclusively in accordance with the terms of this Agreement, applicable Order and subsequent instructions from Customer, so long as such instructions are not inconsistent with or an expansion of Xerox's Services obligations hereunder. Customer agrees to comply with all applicable Privacy Laws. FL -University of So. Florida Master Agreement 18 11/24/2o1185 b. Xerox Compliance. Xerox's processing of the Customer Content is, and will at all times be, conducted in compliance with Xerox's privacy policies and with applicable Privacy Laws. Xerox's Safeguards. Xerox has adopted reasonable physical, technical and organizational safeguards designed to prevent accidental, unauthorized or unlawful loss, disclosure, access, transfer or use of Customer Content. Xerox will promptly notify, but in no event longer than five (5) days, Customer in the event of any known unauthorized access to or use of the Customer Content. d. Customer Compliance. Customer represents that it has been given or has obtained all consents of subjects of personal data as may be required by applicable Privacy Laws for the performance of the Services. In particular, as required by the applicable Privacy Laws in the states in which the Services are performed, Xerox and Customer acknowledge: i. the scope and reasons for the management of personal data; ii. the legal basis for the sharing of this personal data; iii. the consequences resulting from any refusal to share any personal data; iv. the scope and extent of the exchange of personal data in support of this Agreement and the applicable Order(s); and V. the rights granted to the parties under the applicable Privacy Laws and this Agreement. e. Consent. Where applicable Privacy Laws require the Customer's express consent to be given to Xerox in order to process personal data, Section GEN 1.14(a) shall be sufficient for such purpose. The Customer also expressly consents to the processing of personal data by Xerox's subcontractors or other third parties who need to process such personal data in performing the Services, so long as such sub- contractors have agreed to the confidentiality and data protection/privacy provisions of this Agreement. GEN 1.15 Governing Law and Jurisdiction a. This Agreement, each respective Order, and any dispute or claim arising out of or in connection with this Agreement or such Order, shall be governed by and construed in accordance with the laws of Florida, without regard to its conflict of law provisions and submitted to the exclusive jurisdiction of the federal and state courts of Tampa, Florida. b. The parties consent to the exclusive jurisdiction of the courts specified in subsection a above, and expressly waive any objection to the jurisdiction or convenience of such courts. C. Waiver of Jury Trial. In any action to enforce this Agreement or any Order hereunder, the parties agree to waive their right, if any, to a jury trial. GEN 1.16 Intentionally Omitted GEN 1.17 Force Majeure a. General. Except for Customer's payment obligations, neither party shall be liable to the other during any period in which a party's performance is delayed or prevented, in whole or in part, by a circumstance beyond its reasonable control, which circumstances include, but are not limited to, the following: act of God (e.g., flood, earthquake, wind); fire; war; act of a public enemy or terrorist; act of FL -University of So. Florida Master Agreement 19 11/24/201186 sabotage; strike or other labor dispute; riot; misadventure of the sea; inability to secure materials and/or transportation; or, a restriction imposed by legislation, an order or a rule or regulation of a governmental entity (a "Force Majeure Event"). If such a circumstance occurs, the party whose performance is delayed or prevented shall undertake reasonable action to notify the other party thereof. b. Avoidance of Breach. Customer shall not be in breach of this Agreement in connection with a payment delay due to a Force Majeure Event: (i) if Customer undertakes all reasonable efforts to continue or resume its payment obligations; and (ii) Customer does the earlier of the following: (a) immediately pays all delayed payments and recommences regular payments once the Force Majeure Event no longer delays or prevents Customer's ability to make payments, or (b) pays all delayed payments and recommences regular monthly payments within sixty (60) days after the date the Force Majeure Event first delayed or prevented payment, in either case not later than thirty (30) days following the end of the term of the applicable Order. GEN 1.18 Intentionally Omitted GEN 1.19 Insurance Coverage. Xerox on behalf of itself and its Affiliates shall maintain the following limits of insurance coverage during the term of this Agreement: a. Where required by law, Workers Compensation, at statutory limits; b. Employers Liability, with $1,000,000 limit of liability or at statutory limits, whichever is greater; C. Commercial General Liability, including Products -Completed Operations coverage and Broad Form Contractual, with $2,000,000 limit of liability per occurrence for Bodily Injury and Property Damage; d. Where applicable, Automobile Liability, with a combined single limit of liability of $2,000,000 per accident or at statutory limits, whichever is greater; e. Umbrella Liability, with $5,000,000 limit of liability per occurrence; and f. Professional Liability, with $2,000,000 limit of liability per occurrence. GEN 1.20 Audits Xerox will keep accurate records in support of the Charges for Services performed and Products provided hereunder and shall, upon reasonable written request, make such relevant records available to Customer for audit. Such records shall be kept for a period of three (3) years following the invoice date for Services performed or Products provided, as the case may be, to which such records apply (or for such longer period as required by applicable law). Notwithstanding the foregoing, Xerox shall not be required to disclose information deemed by Xerox to be confidential or proprietary (e.g., labor costs, benefit loads, parts costs, equipment costs, etc.). In addition, Customer will: a. provide at least sixty (60) days written notice to Xerox prior to any audit being conducted; b. ensure that any audit, inspection or verification is conducted during the hours of normal operation of the Xerox's locations (or as otherwise agreed by the parties from time to time); C. as far as is commercially practicable, minimize disruption to Xerox's business; and d. limit the frequency of such audits to no more than once per contract year. FL -University of So. Florida Master Agreement 20 11/24/20187 Each party shall bear its own expenses in connection with such audit and ensure that any such audit is subject to all auditors executing appropriate confidentiality agreements with Xerox. GEN 1.21 Compliance with Laws and Policies a. Compliance with Laws. Xerox and Customer shall comply with all applicable laws and regulations in the performance of their respective obligations under this Agreement. It is the Customer's responsibility to ensure that the Customer's Facilities meet applicable health and safety requirements. b. Internal Policies. Xerox agrees to comply with Customer's internal policies provided to Xerox by the Customer (University Customer's regulations and policies can be found at http://regulationsi)olicies.usf.edu/) regarding security and safety at the Customer's Facilities that are reasonable and customary under the circumstances and which do not conflict with the terms of this Agreement. GEN 1.22 Funding (Applies To State & Local Government Customers Only) Customer represents and warrants that all payments due and to become due during Customer's current fiscal year are within the fiscal budget of such year and are included within an unrestricted and unencumbered appropriation currently available for the acquisition of the Products, and it is Customer's intent to use the Products for the entire initial term and to make all payments required under the Agreement or an Order. If (i) through no action initiated by Customer, Customer's governing body does not appropriate funds for the continuation of the Agreement or an Order for any fiscal year after the first fiscal year and has no funds to do so from other sources, and (ii) Customer has made a reasonable but unsuccessful effort to find an assignee within Customer's general organization who can continue the Agreement or an Order, the Agreement or the Order may be terminated. To effect this termination, Customer must, 30 days prior to the beginning of the fiscal year for which Customer's governing body does not appropriate funds for the upcoming fiscal year, notify Xerox that Customer's governing body failed to appropriate funds and that Customer has made the required effort to find an assignee. Customer's notice must certify that canceled Equipment is not being replaced by equipment performing similar functions during the ensuing fiscal year. Customer agrees to release the Equipment to Xerox and, when returned, the Equipment will be in good condition and free of all liens and encumbrances. Customer will then be released from any further payments obligations beyond those payments due for the current fiscal year. GEN 1.23 Miscellaneous a. Construction and Interpretation. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. The section and paragraph headings contained herein are for convenience of reference only and shall not be considered as substantive parts of this Agreement. The use of the singular or plural form shall include the other form and the use of the masculine, feminine or neuter gender shall include the other genders. In construing or interpreting this Agreement, the word "including" shall not be limiting and the word "hereunder" shall mean under this Agreement. The parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and that ambiguities shall not be interpreted against the drafting party. b. Copies of Agreement. Except as required by local law, both parties agree that any reproduction of this Agreement made by reliable means (for example, photocopy or facsimile) shall be considered an original. Xerox may retain a hardcopy, electronic image, photocopy or facsimile of this Agreement and each FL -University of So. Florida Master Agreement 21 11/24/201188 Order hereunder, which shall be considered an original and shall be admissible in any action to enforce said Agreement or Order C. Amendment. All changes to this Agreement must be made in a writing signed by Customer and Xerox. Any amendment of this Agreement shall not affect the obligations of either party under any then existing Orders, which shall continue in effect unless the amendment expressly states that it applies to such existing Orders. d. No Waiver and Severability. The failure by Customer or Xerox to insist upon strict performance of any of the terms and conditions in this Agreement or to exercise any rights or remedies will not be construed as a waiver of the right to assert those rights or to rely on that term or condition at any time thereafter. If any provision is held invalid by any arbitrator or any court under applicable law, such provision shall be deemed to be restated as nearly as possible to reflect the original intention of the parties in accordance with applicable law. The remainder of this Agreement shall remain in full force and effect. e. Independent Contractors. Xerox shall perform all Services hereunder in the capacity of independent contractor and not as Customer's employee, agent or representative. L Assignment. Neither party may assign this Agreement and any Order(s) hereunder without the prior written consent of the other party. In the event of an approved assignment by Xerox for the purposes of securitizing a pool of assets or as part of a third party financial transaction, Xerox, without notice to the Customer, may release information it has about the Customer and this Agreement. In the event of a permitted assignment by Xerox for the purposes of securitizing a pool of assets or as part of a third party financial transaction, Xerox, without further notice to the Customer, may release financial information it has about the Customer and this Agreement. Each successive assignee of Xerox will have all of the rights, but none of the obligations, of Xerox pursuant to this Agreement. Customer will continue to look to Xerox for performance of Xerox's obligations hereunder, and Customer hereby waives and releases any assignees of Xerox from any such claim. Customer will not assert any defense, counterclaim or setoff that Customer may have or claim against Xerox against any assignee of Xerox. g. Communication Authorization. Customer authorizes Xerox or its agents to communicate with Customer by any electronic means (including cellular phone, email, automatic dialing and recorded messages) using any phone number (including cellular) or electronic address that Customer provides to Xerox. h. Limitation on Charges. In no event will Xerox charge or collect any amounts in excess of those allowed by applicable law. Any part of an Order that would, but for this subsection GEN 1.23.h., be construed to allow for a charge higher than that allowed under any applicable law, is limited and modified by this Section to limit the amounts chargeable under such Order to the maximum amount allowed by law. If, in any circumstances, an amount in excess of that allowed by law is charged or received, such charge will be deemed limited to the amount legally allowed and the amount received by Xerox in excess of that legally allowed will be applied to the payment of amounts owed or will be refunded to Customer. i. Order of Precedence. This Agreement, including all Schedules hereto, constitutes the entire agreement between the parties as to the subject matter and supersedes all prior and contemporaneous oral and written agreements regarding the subject matter hereof and neither party has relied on or is relying on any other information, representation, discussion or understanding in entering into and completing the transactions contemplated in this Agreement. The parties agree FL -University of So. Florida Master Agreement 22 11/24/2oil 89 that in the event of any conflict between the terms and conditions in this Agreement, and those contained in any of the documents referenced herein, the order of precedence shall be as follows: i. All modules of the Agreement other than the General Module; ii. General Module of this Agreement; iii. Services Contracts and related Orders (excluding any Customer purchase order terms). However if a term in the main body of this Agreement or Schedule expressly provides for a term in a Schedule or Order to take precedence, such provision in the Schedule or Order shall prevail to the extent of any conflict. Notwithstanding the foregoing, except as may be modified in Schedule C, provisions in the General Module of this Agreement related to: (i) Section GEN 1.10 (Indemnification); (ii) Section GEN 1.11 (Limitation of Liability); and (iii) Section GEN 1.13 (Confidentiality) will prevail over conflicting provisions in any other contractual document. GEN 1.24 - Entire Agreement The following are attached hereto and made part hereof: SERVICES MODULE: TERMS AND CONDITIONS SPECIFIC TO SERVICES EQUIPMENT MODULE: TERMS AND CONDITIONS SPECIFIC TO EQUIPMENT & THIRD PARTY HARDWARE EQUIPMENT LEASING MODULE: TERMS AND CONDITIONS SPECIFIC TO LEASED EQUIPMENT EQUIPMENT PURCHASE MODULE: TERMS AND CONDITIONS SPECIFIC TO EQUIPMENT PURCHASE MAINTENANCE SERVICES MODULE: TERMS AND CONDITIONS SPECIFIC TO MAINTENANCE SERVICES SOFTWARE LICENSE MODULE: TERMS AND CONDITIONS SPECIFIC TO SOFTWARE SERVICES MASTER AGREEMENT ("SMA") MODULE: STANDALONE SERVICES AGREEMENT FOR NON-AFFILIATED ELIGIBLE ENTITIES This Master Agreement constitutes the entire agreement between the parties relating to the acquisition by Customer of Services, Products, Maintenance Services, and Consumable Supplies under transactions that reference this Master Agreement, and supersedes all prior oral and written agreements relating to such subject matter. If there is a conflict between the terms and conditions in this Master Agreement and any of the documents referenced herein, this Master Agreement will control. [SIGNATURES ON NEXT PAGE] FL -University of So. Florida Master Agreement 23 11/24/201190 IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set forth below intending it to become effective on the Effective Date and thereby agree to the terms of this Master Agreement on behalf of themselves and their Affiliates. UNIVERSITY OF SOUTH FLORIDA XEROX CORPORATION BOARD OF TRUSTEES, A PUBLIC BODY CORPORATE DigiUlly slg-d by nn,.Ihy C Mn k. DN: Timothy C Mays, Jr, o=Unmwsiry offlodda, Timothy C. Mays, A. o�surdiasng Services, email�rpdry4S®usfxdu, Signature Si ature Timothy C. Mays, Jr. Name (Please Print) Associate Director, Procurement Services Title 4202 East Fowler Ave, Tampa, FL 33620 Address June 12, 2018 Date APPROVED AS WI OMNI AND LEGAL. SI }F IR�Ir�+r�-c-Y� kxl Loa.Yipn Christopher McPherson Name (Please Print) General Manager, Southeastern US Title 1511 N Westshore Blvd, Suite 225 Tampa, FL 33607 Address June 15, 2018 Date FL -University of So. Florida Master Agreement 24 11/24/201191 SERVICES MODULE SVC 1 TERMS AND CONDITIONS SPECIFIC TO SERVICES In addition to the terms and conditions in the General (GEN) Module, the following terms and conditions apply to Xerox's performance of Services. Xerox has assigned Services Master Agreement Number to this Services Module. SVC 1.1 Scope of Services Subject to the terms and conditions of this Agreement, Services will be performed in accordance with the requirements set forth in an Order. In support of the delivery of the Services, Xerox and Customer will undertake the activities described in the Order. If Customer fails to perform or is delayed in performing any of its responsibilities under this Agreement or the Order, such failure or delay may prevent Xerox from being able to perform any part of the Services or Xerox -related activities. Xerox shall be entitled to an extension or revision of the applicable term of the Order (which may include setting a new expected date for commencement of Services) or to an equitable adjustment in performance metrics associated with such failure or delay. SVC 1.2 Orders and Services Contracts Orders for Services, Maintenance Services, and/or Products are grouped into Services Contracts. Each separate Services Contract will be established when the first Order is placed that bears a new Services Contract number assigned by Xerox and Xerox accepts that Order. Each Services Contract will be assigned its own Services Contract number that will consist of this Service Module's Service Master Agreement Number followed by a three digit extension. Each Services Contract constitutes a separate contract under this Agreement. Customer may add Services, Maintenance Services or Products to an existing Services Contract by submitting additional Orders referencing the applicable Services Contract number. Each Services Contract will consist of the terms and conditions of this Agreement, the first Order under the Services Contract number and each additional Order with the same Services Contract number. Unless Customer provides notice in writing at least thirty (30) days before the end of the term of an Order of its intention not to renew, the Order will continue automatically on a month-to-month basis on the same terms and at the same price. SVC 1.3 Charges for Services Charges are based upon information exchanged between Customer and Xerox, which is assumed to be complete and accurate, and also depend upon other factors such as the timely performance by Customer of its responsibilities. If: (1) such information should prove to be incomplete or inaccurate in any material respect; or (2) there is a failure or delay by the Customer in performing its responsibilities under this Agreement or an Order which results in Xerox incurring a loss or additional cost or expense, then the Charges shall be adjusted to reflect proportionately the impact of such materially incomplete or inaccurate information or such failure or delay. Variations to the Charges shall also occur pursuant to specific price variation terms appearing in an Order or, as agreed in writing by the parties, on the occasion of any variation to the Services. If not specified, Charges due under this Agreement or an Order shall be calculated at Xerox's then current time and materials rates. If Customer agrees to reimburse Xerox for travel expenses in this Agreement, such travel expenses will only be reimbursed by Customer if incurred in compliance with § 112.061, Florida Statutes. If Xerox provides paper under a Services Contract, upon 30 days' notice, Xerox may adjust paper pricing, or either party may terminate the provision of paper. If Xerox agrees to begin providing Services partially or FL -University of So. Florida Master Agreement 25 11/24/2017 92 early (for example, prior to the start of the initial term of an Order), Xerox will bill Customer on a pro rata basis, based on a thirty (30) day month, and the terms and conditions of this Agreement will apply. SVC 1.4 Use of Subcontractors Xerox may, when it reasonably deems it appropriate to do so, subcontract any portion of the Services. Xerox shall remain responsible for any Services performed by subcontractors retained by Xerox to the same extent as if such Services were performed by Xerox. SVC 1.5 Services Scope Changes Except as otherwise set forth in an Order, either party may propose to modify the then - existing Services that are described in an Order, or to add new services to an Order. If Xerox determines such changes are feasible, Xerox will prepare and propose to Customer an amendment to the Order(s) regarding the requested changes and any related impact to the Charges or terms. All change orders to an Order and acceptance or rejection of such change orders shall be in writing. Once both parties execute a change order, Xerox will promptly proceed with the new revised Services set forth in the change order in accordance with the terms of the change order. SVC 1.6 Early Termination of Services and Labor Except as otherwise set forth in a Services Contract, upon ninety (90) days prior written notice, Customer may terminate or reduce any Services or labor provided pursuant to an Order without incurring early termination charges, unless such Services or labor are terminated (a) by Xerox due to Customer's default or (b) by Customer, for reasons other than nonappropriations or Xerox uncured default, and Customer acquires similar services from another supplier within six (6) months of the termination of such Services or labor, Customer shall pay all amounts due as of the termination date, together with the early termination charges, for loss of bargain and not as a penalty, stated in the Order or, if not specifically stated therein, an amount equal to the then current MMC for said terminated or reduced Services or labor multiplied by the number of months remaining in the term of the related Order, not to exceed six (6) months. SVC 1.7 Early Termination — Third Party and Amortized Services Certain Services, such as consulting and training may be amortized over the term of the SSO or MSO ("Amortized Services") or Xerox may provide funds to Customer to acquire Third Party Hardware or to license Third Party Software and/or to retire debt on existing Third Party Hardware ("Third Party Funds"). Collectively, Third Party Funds and Amortized Services are "Funds". The Funds amount will be included in the Monthly Minimum Charge. Notwithstanding any other provision in the Agreement to the contrary, should an Order be terminated prior to expiration for any reason or a unit of Third Party Hardware or any Third Party Software for which Third Party Funds have been provided is removed or replaced prior to expiration, Customer agrees to pay to Xerox, in addition to any other amounts owed under said Order, an amount equal to the remaining principal balance of the Funds together with a 15% disengagement fee, for loss of bargain and not as a penalty. SVC 1.8 Xerox Remedies for Customer Default If Customer defaults, Xerox, in addition to its other remedies (including the cessation of Services), may require immediate payment of (a) all amounts then due, plus interest on all amounts due from the due date until paid at the rate established pursuant to § 55.03(1), Florida Statutes, and (b) any applicable early termination charges. [Remainder of page left intentionally blank] FL -University of So. Florida Master Agreement 26 11/24/2011 93 EQUIPMENT MODULE EQP 1 TERMS AND CONDITIONS SPECIFIC TO EQUIPMENT & THIRD PARTY HARDWARE In addition to the terms and conditions in the General (GEN) Module, the following terms and conditions apply to Equipment or Third Party Hardware provided to Customer under an Order. EQP 1.1 Commencement Date and Date of Installation The commencement date for each unit of Equipment provided under an Order shall be the Date of Installation. EQP 1.2 Delivery and Removal and Suitability of Customer Facilities Xerox will be responsible for all standard delivery charges for Equipment or Third Party Hardware. Customer will be responsible for any non-standard delivery charges and, for Equipment for which Xerox retains ownership, all removal charges for Equipment or Third Party Hardware. Customer agrees to take responsibility for legally disposing of all hazardous wastes generated from the use of Third Party Hardware or supplies. The suitability of Customer Facilities for installation of Equipment or Third Party Hardware, including compliance with state and local building, fire and safety codes and any non- standard state or local installation requirements, is Customer's responsibility. EQP 13 Equipment Status Unless Customer is acquiring previously installed equipment, Equipment will be either: (a) "Newly Manufactured," which may contain some recycled components that are reconditioned; (b) "Factory Produced New Model" which is manufactured and newly serialized at a Xerox factory, adds functions and features to a product previously disassembled to a Xerox predetermined standard, and contains new components and recycled components that are reconditioned; or (c) "Remanufactured," which has been factory produced following disassembly to a Xerox predetermined standard and contains both new components and recycled components that are reconditioned. Xerox makes no representations as to the status of any Third Party Hardware that Xerox may provide under any Order. EQP 1.4 Product Availability Xerox may withdraw Products that become generally commercially unavailable from future order taking under an Order. Xerox may add Products to this Agreement for order taking under an Order. EQP 1.5 Consumables If specified in an Order, Xerox will provide Consumables for Equipment. Consumables are Xerox's property until used by Customer and Customer will: (i) use them only with the Equipment for which they were provided under the applicable Order, (ii) return all Cartridges to Xerox as provided in this Agreement, and (iii) at the end of the term of the applicable Order, return any unused Consumables to Xerox at Xerox's expense when using Xerox -supplied shipping labels, or destroy them in a manner permitted by applicable law. Should Customer's use of Consumables exceed Xerox's published yields by more than 10%, Xerox may charge Customer for such excess usage. FL -University of So. Florida Master Agreement 27 11/24/2017 194 EQP 1.6 Use and Relocation For any Equipment or Third Party Hardware provided by Xerox, with the exception of Purchased Equipment for which Customer has paid in full, Customer agrees that: (a) the Equipment or Third Party Hardware shall remain personal property; (b) Customer will not attach any of the Equipment or Third Party Hardware as a fixture to any real estate; (c) Customer will not pledge, sub -lease or part with possession of the Equipment or Third Party Hardware or file or permit to be filed any lien against the Equipment or Third Party Hardware; and (d) Customer will not make any permanent alterations to the Equipment or Third Party Hardware. Customer hereby authorizes Xerox or its agents to file financing statements necessary to protect Xerox's rights to Supplier Equipment. While Equipment or Third Party Hardware is subject to an Order, Customer must provide Xerox prior written notice of all Equipment or Third Party Hardware relocations and Xerox may arrange to relocate the Equipment or Third Party Hardware at Customer's expense. While Equipment or Third Party Hardware is being relocated, Customer remains responsible for making all payments to Xerox required under the applicable Order. All parts or materials replaced, including as part of an upgrade, will become Xerox's property. Equipment or Third Party Hardware cannot be relocated outside of the U.S. until Customer has paid in full for the Equipment or Third Party Hardware and has received title thereto. Notwithstanding anything to the contrary in the foregoing, to the extent that the Equipment contains any Software, any relocation of such Equipment is subject to the terms and conditions set forth in the Software License Module of this Agreement. EQP 1.7 Trade -In Equipment If Customer is providing trade-in equipment ("Trade -In Equipment") to Xerox under an Order: a. Customer warrants that Customer has the right to transfer title to the Trade -In Equipment and that the Trade -In Equipment is in good working order and has not been modified from its original configuration (other than by Xerox). Title and risk of loss to the Trade -In Equipment will pass to Xerox when Xerox removes it from Customer's premises. b. Customer will maintain the Trade -In Equipment at its present site and in substantially its present condition until removed by Xerox. Customer will pay all accrued charges for the Trade -In Equipment (up to and including payment of the final principal payment number) and all applicable 1 maintenance, administrative, supply, and finance charges until Xerox removes the Trade -In Equipment from Customer's premises. EQP 1.8 Remote Services For Equipment Certain models of Equipment are supported and serviced using Remote Data Access. Remote Data Access also enables Xerox to transmit to the Customer Maintenance Releases or Updates for software or firmware and to remotely diagnose and modify Equipment to repair or correct malfunctions. Remote Data will be transmitted to and from Customer in a secure manner specified by Xerox. Remote Data Access will not allow Xerox to read, view or download any Customer data, documents or other information residing on or passing through the Equipment, Third Party Hardware or Customer's information management systems. Customer grants the right to Xerox, without charge, to establish and maintain Remote Data Access for the purposes described above. Upon Xerox's request, Customer will provide contact information for Equipment such as name and address of Customer contact and IF and physical addresses/locations of Equipment. Customer will enable FL -University of So. Florida Master Agreement 28 11/24/2017 195 Remote Data Access via a method prescribed by Xerox and Customer will provide Xerox with reasonable assistance to allow Xerox to have Remote Data Access. Unless Xerox deems Equipment incapable of Remote Data Access, Customer will ensure that Remote Data Access is maintained at all times Maintenance Services are being performed. EQP 1.9 Data Security Certain models of Equipment can be configured to include a variety of data security features. The selection, suitability and use of data security features are solely Customer's responsibility. Upon request, Xerox will provide additional information to Customer regarding the security features available for particular Equipment models and costs associated with such features. EQP 1.10 Supplier Equipment Provided with Services In the event that, other than through outright purchase, Xerox provides Supplier Equipment to Customer in connection with the provision of Services, the following terms shall apply unless otherwise specified in an Order: a. Xerox (or the applicable third party vendor) shall at all times retain title to the Supplier Equipment provided as part of the Services. Customer will be responsible upon delivery for the risk of loss or damage of Supplier Equipment when such loss or damage is due to fire, theft, or disappearance, or willful misconduct, or the negligence of its employees acting within the scope of their employment. The full risk of loss for Supplier Equipment provided to a Non -Affiliated Eligible Entity shall pass to the Non -Affiliated Eligible Entity upon delivery to the Non -Affiliated Eligible Entity's Facility. b. Customer agrees to use the Supplier Equipment in accordance with, and to perform, all operator maintenance procedures for the Supplier Equipment described in the applicable manuals and Documentation provided by Xerox. Customer shall not (unless the Supplier Equipment is Purchased Equipment, and then only with Xerox's prior consent): i. sell, charge, let or part with possession of the Supplier Equipment; ii. remove the Supplier Equipment from the Customer's premises in which it is installed; or iii. make any changes or additions to the Supplier Equipment. C. Equipment is ordered for a minimum order period (as specified in the applicable Order) and on the basis that the Equipment will be subject to the Services for that minimum order period. If Equipment is terminated for any reason before the end of its minimum order period, the termination charges as set out in the applicable Order for such Equipment (plus applicable Transaction Taxes) shall apply. d. At the end of the Order term, unless Customer opts to purchase the Equipment (where such option is available as set forth in the applicable Order), Customer shall work with Xerox to schedule the return of the Equipment, together with any related Software, to Xerox. At the time of removal, the Equipment (and related Software) will be in the same condition as when delivered, reasonable wear and tear excepted. e. Unless Customer provides notice in writing at least ninety (90) days before the end of the lease term of its intention not to renew, the Order for such Leased Equipment will continue automatically on a month-to-month basis on the same terms and at the same price. f. Except as expressly provided herein and as permitted by applicable law, Customer waives all rights and remedies conferred upon a lessee by Article 2A of the Uniform Commercial Code. FL -University of So. Florida Master Agreement 29 11/24/2017 Where the Supplier Equipment to be used in the Services is being purchased outright, the following additional terms apply: a. Orders for an outright purchase of Equipment to be used with the Services shall include both the unique Xerox -provided contract number that is associated with the Equipment Purchase Module for purchased Equipment transactions under this Agreement, as well as either (i) the Services Contract Number that is associated with the Services Module of this Agreement, for ordering Customer and Customer Direct Affiliates, or (ii) the corresponding Services Master Agreement that is associated with the ordering Non -Affiliated Eligible Entity. b. Title to the Purchased Equipment will pass to Customer upon payment in full of the applicable Charges or, if payment is received in advance of delivery of the Purchased Equipment to the Customer Facility, upon delivery to the Customer Facility. i. Xerox warrants that it has the right to transfer title to the Purchased Equipment; ii. Xerox's standard warranty in effect for the Purchased Equipment at the time of delivery to the Customer shall apply. C. If Customer or a Non -Affiliated Eligible Entity fails to pay the applicable Charges for such Purchased Equipment, Xerox, in addition to its other remedies (including the cessation of Maintenance Services, if applicable), may require immediate payment of all amounts then due (plus all applicable Transaction Taxes), plus applicable interest, at a rate established pursuant to § 55.03(1), Florida Statutes, for Customer, or the highest rate allowed by applicable law, or, absent such law, the rate of 1.5% per month for Non - Affiliated Eligible Entities, on all amounts due from the due date until paid. d. Software provided with Supplier Equipment shall be governed by the terms set forth in the Software License Module of this Agreement. e. If Customer elects to receive Maintenance Services for Purchased Equipment, Customer shall do so under a separate Order under the Services Module of the Agreement for such Maintenance Services. Maintenance Services for Equipment that is provided as part of Services will be provided in accordance with the Maintenance Services Module of this Agreement. [Remainder of page left intentionally blank] FL -University of So. Florida Master Agreement 30 11/24/2017 197 EQUIPMENT LEASING MODULE EL 1 TERMS AND CONDITIONS SPECIFIC TO LEASED EQUIPMENT In addition to the terms set forth in the General (GEN) and Equipment (EQP) Modules, the following terms apply to Leased Equipment Orders. EL 1.1 Contract Number On all Order documents for Major Account Lease Orders, Customer will include the contract number that is provided on the attached Major Account Lease Pricing Exhibit. EL 1.2 Periodic Minimum Charge As set forth on the applicable Order, the Periodic Minimum Charge for the Leased Equipment, along with any additional print charges, covers Customer's cost for the use of the Leased Equipment and Maintenance Services, for the term specified in the applicable Order. EL 1.3 Term The initial Term for any standalone lease Order will be the number of full calendar months stated in such Order. The Lease Minimum Payment for any partial month following the Installation Date will be billed on a pro rata basis, based on a 30 day month. EL 1.4 Title, Risk of Loss, Insurance Title to the Leased Equipment shall remain with Xerox until Customer exercises its purchase option, if available. Customer will be responsible upon delivery for the risk of loss or damage of Leased Equipment when such loss or damage is due to fire, theft, or disappearance, or willful misconduct, or the negligence of its employees acting within the scope of their employment. EL 1.5 NON -CANCELABLE LEASE LEASED EQUIPMENT SUBJECT TO THIS MODULE CANNOT BE CANCELED OR TERMINATED EXCEPT AS EXPRESSLY PROVIDED ELSEWHERE IN THIS AGREEMENT, AND CUSTOMER'S OBLIGATION TO MAKE ALL PAYMENTS DUE OR TO BECOME DUE UNDER ANY ORDER FOR LEASED EQUIPMENT SHALL BE ABSOLUTE AND UNCONDITIONAL, AND SHALL NOT BE SUBJECT TO ANY DELAY, REDUCTION, SET-OFF, DEFENSE, COUNTERCLAIM, OR RECOUPMENT FOR ANY REASON WHATSOEVER, IRRESPECTIVE OF XEROX'S PERFORMANCE OF ITS OBLIGATIONS HEREUNDER. ANY CUSTOMER CLAIM AGAINST XEROX MAY BE ASSERTED SOLELY AGAINST XEROX IN A SEPARATE ACTION. EL 1.6 Early Termination If any unit of Leased Equipment subject to this EL Module is terminated for any reason, including, without limitation, default by Customer, Xerox, in addition to its other remedies (including the cessation of Maintenance Services), may require immediate payment, as liquidated damages for loss of bargain and not as a penalty, of. (i) all amounts then due, plus applicable interest on all amounts due from the due date until paid; (ii) the Lease Minimum Payment (less the Maintenance Services and Consumables components thereof, as reflected on Xerox's books and records) remaining in the initial term of the Order for the unit of Leased Equipment, discounted at the applicable rate; (iii) where applicable, any purchase option as set forth in the Order; and (iv) all applicable Transaction Taxes. In FL -University of So. Florida Master Agreement 31 11/24/2017 •N addition to paying the amounts required in the preceding sentence, Customer shall either (i) make the Leased Equipment available for removal by Xerox (or by Customer where applicable) when requested to do so by Xerox and, at the time of removal, the Leased Equipment will be in the same condition as when delivered, reasonable wear and tear excepted, together with any related Software or (ii) if available as an option, purchase the Leased Equipment "AS IS, WHERE IS" and WITHOUT ANY WARRANTY AS TO CONDITION OR VALUE by paying Xerox the purchase option, if available, as set forth in the applicable Order, plus all applicable Transaction Taxes. If any unit of Leased Equipment subject to this EL Module is terminated for any reason, other than nonappropriations in accordance with Section GEN 1.22 or uncured Xerox default in accordance with subsection GEN 1.12.b., including, without limitation, defaults under the Agreement or a Standard Lease IA, Xerox may, in addition to its other remedies (including cessation of Maintenance Services), remove the Equipment at Customer's expense and require immediate payment, as liquidated damages for loss of bargain and not as a penalty, of. (a) all amounts then due, plus interest from the due date until paid at the rate established pursuant to § 55.03(1), Florida Statutes for Customer, and the highest rate allowed by applicable law, or, absent such law, the rate of 1.5% per month for Non -Affiliated Eligible Entities; (b) the Lease Minimum Payments (less the Maintenance Services and Consumable Supplies components thereof, as reflected on Xerox's books and records) remaining in the initial Term of the Standard Lease IA, discounted at 4% per annum; (c) the applicable Purchase Option; and (d) all applicable Taxes. If Customer notifies Xerox and makes the Equipment available for removal by Xerox in the same condition as when delivered (reasonable wear and tear excepted) within 30 days after notice of default, upon recovery of the Equipment Customer will receive a credit for the fair market value of the Equipment (as determined by Xerox), less any costs incurred by Xerox. EL 1.7 Leased Equipment Return At the end of the lease term, Customer shall contact Xerox to schedule the return of the Leased Equipment together with any related Software to Xerox. At the time of removal, the Leased Equipment (and related Software) will be in the same condition as when delivered, reasonable wear and tear excepted. EL 1.8 Maintenance Component Price Increase Unless otherwise stated in an Order, Xerox may annually increase that amount of the Periodic Minimum Charge that Customer is charged for maintenance of Leased Equipment (the "Maintenance Component"). EL 1.9 Renewal Unless Customer provides notice in writing at least ninety (90) days before the end of the term of an Order for Leased Equipment of its intention not to renew, said Order for such Leased Equipment will continue automatically on a month-to-month basis on the same terms and pricing. EL 1.10 Finance Lease A LEASE TRANSACTION DOCUMENT IS A "FINANCE LEASE" UNDER ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE AND, EXCEPT TO THE EXTENT EXPRESSLY PROVIDED HEREIN, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER WAIVES ALL RIGHTS AND REMEDIES CONFERRED UPON A LESSEE BY ARTICLE 2A. [Remainder of page left intentionally blank] FL -University of So. Florida Master Agreement 32 11/24/2017 199 EP 1 EP 1.1 EP 1.2 EP 13 EQUIPMENT PURCHASE MODULE TERMS AND CONDITIONS SPECIFIC TO EQUIPMENT PURCHASE In addition to the terms and conditions in the General (GEN) Module, the following terms and conditions apply to the acquisition of Purchased Equipment. Contract Number On all Order documents for Equipment Purchase Orders, Customer will include the contract number that is provided on the attached Equipment Purchase Pricing Exhibit. Title and Risk of Loss Title and risk of loss to such Purchased Equipment will pass to Customer upon delivery to Customer Facility. Default If Customer defaults under an Order for Purchased Equipment, Xerox, in addition to its other remedies (including the cessation of Maintenance Services if applicable), may require immediate payment of all amounts then due plus all applicable Transaction Taxes), plus applicable interest, at a rate established pursuant to § 55.03(1), Florida Statutes for Customer, or the highest rate allowed by applicable law, or, absent such law, the rate of 1.5% per month, for Non -Affiliated Eligible Entities on all amounts due from the due date until paid. [Remainder of page left intentionally blank] FL -University of So. Florida Master Agreement 33 11/24/2017 200 MSI MS 1.1 MS 1.2 MS 1.3 MAINTENANCE SERVICES MODULE TERMS AND CONDITIONS SPECIFIC TO MAINTENANCE SERVICES In addition to the terms and conditions in the General (GEN) Module, and except as otherwise set forth in an Order, the following terms and conditions apply to the provision of Maintenance Services. Maintenance Services As a mandatory part of an Order that includes leased or rented Equipment, or pursuant to an Order for stand-alone Maintenance Services, or pursuant to an Order for Services that includes Maintenance Services for Equipment, Xerox or a designated service provider will provide the following Maintenance Services for Equipment. If Customer is acquiring Equipment for which Xerox does not offer Maintenance Services, such Equipment will be designated as "No Svc". This Module does not apply to maintenance of Third Party Hardware. Any such maintenance that Xerox provides on Third Party Hardware will be provided in accordance with the terms of the applicable Order. . The provision of Maintenance Services is contingent upon Customer facilitating timely and efficient resolution of Equipment issues by: (i) utilizing Customer -implemented remedies provided by Xerox; (ii) replacing Cartridges; and (iii) providing information to and implementing recommendations provided by Xerox telephone support personnel in those instances where Xerox is not providing on-site Equipment support personnel. If an Equipment issue is not resolved after completion of (i) through (iii) above, Xerox will provide on-site support as provided in the applicable Order. Repairs and Parts a. Xerox will make repairs and adjustments necessary to keep the Equipment in good working order and operating in accordance with its written specifications (including such repairs or adjustments required during initial installation). Maintenance Services shall cover repairs and adjustments required as a result of normal wear and tear or defects in materials or workmanship. Parts required for repair may be new, reconditioned, reprocessed or recovered. b. If Xerox is providing Maintenance Services for Equipment that uses Cartridges, Customer will use only unmodified Cartridges purchased directly from Xerox or its authorized resellers. Failure to use such Cartridges will void any warranty applicable to such Equipment. Cartridges packed with Equipment or furnished by Xerox as Consumables will meet Xerox's new Cartridge performance standards and may be new, remanufactured or reprocessed and contain new and/or reprocessed components. To enhance print quality, Cartridges for many models of Equipment have been designed to cease functioning at a predetermined point. Hours and Exclusions Unless otherwise set forth in an Order, Maintenance Services will be provided during Xerox's standard working hours (excluding locally -recognized Xerox holidays) in the areas within the geography in which the Equipment is delivered. Maintenance Services excludes repairs due to: (i) misuse, neglect or abuse; (ii) failure of the installation site or the PC or workstation used with the Equipment to comply with Xerox's published specifications; (iii) use of options, accessories, or other products not serviced by Xerox; (iv) non -Xerox alterations, relocation, service or supplies; or (v) failure to perform operator maintenance procedures identified in operator manuals. Customer agrees to use Equipment in accordance with, and to perform all operator maintenance procedures for Equipment set FL -University of So. Florida Master Agreement 34 11/24/2017 201 forth in, the applicable manuals and Documentation provided by Xerox. Customer agrees to purchase all referenced parts, tools, and supplies needed to perform those procedures that are described in the applicable manuals and instructions. MS 1.4 Installation Site and Meter Readings In order to receive Maintenance Services for Equipment requiring connection to a PC or workstation, Customer must utilize a PC or workstation that either (i) has been provided by Xerox or (ii) meets Xerox's published specifications. The Equipment installation site must conform to Xerox's published requirements. If applicable, unless otherwise set forth in an Order, Customer agrees to provide meter readings in the manner prescribed by Xerox. If Customer does not provide Xerox with meter readings as required, Xerox may estimate them and bill Customer accordingly. MS 1.5 Remedy If Xerox is unable to maintain the Equipment as described above, Xerox will replace the Equipment with an identical product or, at Xerox's option, another model with comparable features and capabilities. If replacement Equipment is provided pursuant to this Section, there shall be no additional charge for its provision by Xerox during the initial lease term of the Order and it shall be subject to the terms and conditions of this Agreement and the applicable Order(s). This remedy applies only if the Equipment has been continuously and exclusively maintained by Xerox or its designated service provider from the Date of Installation. Customer's use of non -Xerox approved consumables that affect the performance of the Equipment may invalidate this remedy. MS 1.6 Charges for Maintenance Services Except as otherwise stated in an Order, Xerox may annually increase charges for Maintenance Services. MS 1.7 End of Service Xerox has no obligation to maintain or replace Equipment beyond the "End of Service" for that particular model of Equipment. End of Service ("EOS") means the date announced by Xerox after which Xerox will no longer offer Maintenance Services for a particular Equipment model. An EOS Equipment list is available upon request. MS 1.8 Remedy for Default (applies to Purchase with Maintenance Orders, and Maintenance Services Only Orders) Unless otherwise agreed to by the parties in an Order, if Customer defaults under this Agreement or a Maintenance Services Order, Xerox, in addition to its other remedies (including the cessation of Maintenance Services), may require immediate payment, as liquidated damages for loss of bargain and not as a penalty, of (a) all amounts then due, plus applicable interest on all amounts due from the due date until paid (at the rate established pursuant to § 55.03(1), Florida Statutes, for Customer, or the highest rate allowed by applicable law, or, absent such law, the rate of 1.5% per month for Non - Affiliated Eligible Entities; (b) the lesser of (i) the remaining minimum periodic base charge in such Maintenance Services Order's term, not to exceed six (6) such (minimum periodic base charge) payments for one year Maintenance Services Orders, or twelve (12) such payments for multi-year Maintenance Services Orders; and, (c) all applicable Transaction Taxes. [Remainder of page left intentionally blank] FL -University of So. Florida Master Agreement 35 11/24/2017 202 SOFTWARE LICENSE MODULE SW 1 TERMS AND CONDITIONS SPECIFIC TO SOFTWARE In addition to the terms and conditions in the General (GEN) Module the following terms and conditions apply to the license and use of Software and its associated Documentation. SW 1.1 Software License Xerox may provide Software to Customer pursuant to an Order hereunder. The following license applies to Software provided hereunder, unless such Software is accompanied by a click -wrap or shrink-wrap license agreement or otherwise provided subject to a separate license agreement. a. Xerox grants Customer a non-exclusive, non -transferable, non -assignable (by operation of law or otherwise) license to use: (i) Base Software only on or with the Equipment with which (or within which) it was delivered; and (ii) Application Software only on any single unit of Equipment, subject to Customer remaining current in the payment of any indicated applicable Software license fees (including any annual renewal fees). Customer has no other rights to the Software. Customer will not and will not allow its employees, agents, contractors or vendors to: (i) distribute, copy, modify, create derivatives of, decompile, or reverse engineer Software except as permitted by applicable law; (ii) activate Software delivered with or within the Equipment/in an un -activated state; or, (iii) access or disclose Diagnostic Software for any purpose. Title to Software and all copyrights and other intellectual property rights in Software will reside solely with Xerox and its licensors (who will be considered third party beneficiaries of this Agreement's software and limitation of liability provisions). b. The Base Software license will terminate: (i) if Customer no longer uses, possesses the Equipment with which the Base Software was provided; or (ii) upon the expiration or termination of any Order under which Customer has leased the Equipment with which the Base Software was provided (unless Customer has exercised an option to purchase the Equipment, where available). C. Software may contain, or be modified to contain, computer code capable of automatically disabling proper operation or functioning of the Equipment. Such disabling code may be activated if: (i) Xerox is denied reasonable access to periodically reset such code; (ii) Customer is notified of a default under an Order; or (iii) Customer's license is terminated or expires. Xerox shall notify Customer by screen message at least sixty (60) days prior to the activation of any such disabling code. In the event Customer has notified Xerox in writing that it disputes Xerox's right hereunder to disable the Equipment by activation of disabling code with respect to any Software, Xerox shall, if provided timely access to such Software by Customer, deactivate the disabling code until such dispute has been resolved to Customer's reasonable satisfaction, provided that Customer shall pay to Xerox any then current license fees for the Software that remained activated past its scheduled termination or expiration date and that such default (i.e., subsection (ii) above) is not related to non-payment. d. Xerox does not warrant that the Software will be free from errors or that its operation will be uninterrupted. FL -University of So. Florida Master Agreement 36 11/24/2017 203 SW 1.2 Software Support For Base Software, Software Support will be provided during the initial term of the applicable Order and any renewal period, but not longer than five (5) years after Xerox stops taking orders for the subject model of Equipment. For Application Software, Software Support will be provided as long as Customer is current in the payment of all applicable software license, annual renewal and "support only" fees. a. Xerox will maintain a web -based or toll-free hotline during Xerox's standard working hours to report Software problems and answer Software -related questions. Xerox, either directly or with its vendors, will make reasonable efforts to: (i) assure that Software performs in material conformity with its Documentation; (ii) provide available workarounds or patches to resolve Software performance problems; and (iii) resolve coding errors for (1) the current release and (2) the previous release for a period of six (6) months after the current release is made available to Customer. Xerox will not be required to provide Software support if Customer has modified the Software. b. Xerox may make available new releases of the Software that primarily incorporate coding error fixes and are designated as "Maintenance Releases" or "Updates". Maintenance Releases or Updates are provided at no charge and must be implemented within six (6) months after being made available to Customer. Each Maintenance Release or Update shall be considered Software governed by these terms. New releases of the Software that are not Maintenance Releases which include new content or functionality ("Feature Releases") will be subject to additional license fees at Xerox's then -current pricing and shall be considered Software governed by these terms and conditions (unless otherwise noted in an Order). Implementation of a Maintenance Release, Update or Feature Release may require Customer to procure, at its expense, additional hardware and/or software from Xerox or another entity. Upon installation of a Maintenance Release, Update or Feature Release, Customer will return or destroy all prior Maintenance Releases, Updates or Feature Releases. C. Xerox may annually increase Software license fees and support fees for Application Software. SW 1.3 Diagnostic Software Diagnostic Software and method of entry or access to it constitute valuable trade secrets of Xerox. Title to the Diagnostic Software shall at all times remain solely with Xerox and Xerox's licensors. Xerox does not grant Customer a license or right to use the Diagnostic Software. Customer will not use, reproduce, distribute, or disclose the Diagnostic Software for any purpose (or allow third parties to do so). Customer will allow Xerox reasonable access to the Equipment during Customer's normal business hours to remove or disable Diagnostic Software if Customer is no longer receiving Maintenance Services from Xerox. SW 1.4 Third Party Software Third Party Software is subject to license and support terms provided by the applicable Third Party Software vendor. [Remainder of page left intentionally blank] FL -University of So. Florida Master Agreement 37 11/24/2017 204 SERVICES MASTER AGREEMENT ("SMA") MODULE STANDALONE SERVICES AGREEMENT FOR NON-AFFILIATED ELIGIBLE ENTITIES SERVICES MASTER AGREEMENT THIS SERVICES MASTER AGREEMENT NO. << Enter "Agreement", or "Contract", or "SMA") is between Xerox corporation with offices at 201 Merritt 7, Norwalk, CT 06851 >>> ("Customer"). xe ro,x 7 Digit Contract Number >>> (the Corporation ("Xerox"), a New York and « Enter Customers Legal Name AGREEMENT STRUCTURE This Agreement serves as a master agreement to enable Xerox and Customer to contract with each other for a range of products and services to be provided to the Customer over time. However, it is the intent of the parties that the products and services be acquired by the Customer under the auspices of the Master Agreement between Xerox and the University of South Florida (the "Master Agreement") that resulted from the award of the Invitation To Negotiate ITN -17 -16 -MH. Therefore, the terms and conditions of the ITN Contract are incorporated herein by reference; however, and any conflict or inconsistency between the below terms and conditions of this Agreement and the Master Agreement shall be resolved in favor of this Agreement. This Agreement is grouped into Modules. The "GEN" Module applies to all products and services provided hereunder, while the other Modules apply as appropriate to what Xerox is providing to Customer under the applicable Order. DEFINITIONS MODULE DEF 1. — DEFINITIONS The following definitions (and those found elsewhere in this Agreement) apply unless otherwise specified in an Order. a. Affiliate means a legal entity that directly or indirectly controls, is controlled by, or is under common control with either party. An entity is considered to control another entity if it owns, directly or indirectly, more than 50% of the total voting securities or other such similar voting rights. b. Agreement means this Services Master Agreement. This Agreement may also be referred to in ordering and contracting documents as a "Services and Solutions Agreement" or "SSA." C. Amortized Services means certain services such as consulting and training, the Charges for which are amortized over the term of an Order. d. Application Software means Xerox -brand software that allows Equipment or Third Party Hardware to perform functions beyond those enabled by its Base Software. e. Base Software means software embedded, installed, or resident in Equipment that is necessary for operation of the Equipment in accordance with published specifications. f. Cartridges means copy/print cartridges and xerographic modules or fuser modules designated by Xerox as customer -replaceable units for the Equipment. FL -University of So. Florida Master Agreement (Schedule A) 1 11/26/2017 205 g. Charges mean the fees payable by Customer for Services, Maintenance Services and/or Products as specified in this Agreement. h. Confidential Information means information identified as confidential and provided by the disclosing party to the receiving party. L Consumable Supplies. Consumable Supplies varydepending upon the Equipment model, and include: (i) for black and white Equipment, standard black toner and/or dry ink, black developer, Copy Cartridges, and, if applicable, fuser agent required to make impressions; (ii) for full color Equipment, the items in (i) plus standard cyan, magenta, and yellow toners and dry inks (and their associated developers); and, (iii) for Equipment identified as "Phaser", only, if applicable, black solid ink, color solid ink, imaging units, waste cartridges, transfer rolls, transfer belts, transfer units, belt cleaner, maintenance kits, print Cartridges, drum Cartridges, waste trays and cleaning kits. Unless otherwise set forth in an Order, Consumable Supplies excludes paper and staples. j. Customer Assets means all hardware, equipment, fixtures, software, assets, networks, work space, facilities, services and other assets owned, leased, rented, licensed or controlled by Customer (including Existing Equipment and Existing Software) that Customer makes available to Xerox to enable Xerox to fulfill its obligations under an Order. k. Customer Confidential Information means Confidential Information belonging to Customer and includes, without limitation, Customer Content and Private Information. I. Customer Content means documents, materials or information that Customer provides in hard copy or electronic format to Xerox, containing information about Customer or its clients, in order for Xerox to provide Services, Maintenance Services, or Products. M. Customer Facilities means those facilities controlled by Customer where Xerox performs Services or provides Products. n. Customer Intellectual Property means all intellectual property and associated intellectual property rights including patent, trademark, service mark, copyright, trade dress, logo and trade secret rights which exist and belong to Customer as of the Effective Date or that may be created by Customer after the Effective Date, excluding Xerox Confidential Information. o. Data means data that the Xerox Tools and Xerox Client Tools automatically collect from all Equipment and Third Party Hardware that appears on Customer's network, or that are locally connected to another device on Customer's network, when such Tools are installed on Customer's network. Examples of Data include product registration, meter read, supply level, device configuration and settings, software version, and problem/fault code data. p. Date of Installation means: (a) for Equipment (or Third Party Hardware) installed by Xerox, the date Xerox determines the Equipment (or Third Party Hardware) to be operating satisfactorily as demonstrated by successful completion of diagnostic routines and is available for Customer's use; and (b) for Equipment (or Third Party Hardware) designated as "Customer Installable," the Equipment (or Third Party Hardware) delivery date. q. Description of Services or DOS means a document attached to an Order which references the applicable Services Contract number and specifies the Products and/or Services provided under such Order. r. Diagnostic Software means Xerox -proprietary software embedded in or loaded onto Equipment and used by Xerox to evaluate or maintain the Equipment. S. Documentation means all manuals, brochures, specifications, information and software descriptions, and related materials customarily provided by Xerox to customers for use with certain Products or Services. t. Effective Date means the date this Agreement is signed by Xerox. U. Equipment means Xerox -brand equipment. FL -University of So. Florida Master Agreement (Schedule A) 2 11/26/2017 206 V. Excluded Taxes means (i) taxes on Xerox's income, capital, and employment, (ii) taxes for the privilege of doing business, and (iii) personal property tax on Equipment rented or leased to Customer under this Agreement. w. Existing Equipment means devices which are leased, rented or owned by the Customer outside of this Agreement, which are used to provide Services, and which remain subject to the terms and conditions of the agreements under which they were originally acquired. X. Existing Software means software licensed by the Customer outside of this Agreement and which is used to provide the Services and which remains subject to the terms and conditions of the agreements under which it was originally acquired. y. Feature Releases means new releases of Software that include new content or functionality. Z. Force Majeure Event means a circumstance beyond a party's reasonable control, which circumstances include, but are not limited to, the following: act of God (e.g., flood, earthquake, wind); fire; war; act of a public enemy or terrorist; act of sabotage; strike or other labor dispute; riot; misadventure of the sea; inability to secure materials and/or transportation; or a restriction imposed by legislation, an order or a rule or regulation of a governmental entity. aa. Funds means collectively Amortized Services and Third Party Funds. bb. Maintenance Releases or Updates means new releases of Software that primarily incorporate coding compliance updates and error fixes and are designated as "Maintenance Releases" or "Updates." cc. Maintenance Services means required maintenance of Equipment to keep the Equipment in good working order. dd. Module means a specific set of terms and conditions contained in this Agreement that is identified as a "Module." The Modules under this Agreement are the DEF, GEN, SVC, EQP, EP, MS and SW Modules. ee. Monthly Minimum Charge or MMC means the regular recurring Charge that is identified in an Order and which, along with any additional print/impression charges, covers the cost for the Services, Maintenance Services and/or Products. The MMC may also include lease buyout funds, Funds, monthly equipment component amounts, remaining Customer obligations from previous contracts, and amounts being financed or refinanced. One-time items are billed separately from the MMC. ff. Order means a document that Xerox requires for processing of orders for Services, Maintenance Services and/or Products hereunder, which may specify the contracting parties and location(s) where the foregoing will be provided; Customer's requested shipment date; the Products that Customer will purchase, lease, rent or license; the Services and/or Maintenance Services that Xerox will provide; the applicable Charges and expenses; the term during which the Services, Maintenance Services and/or Products described therein shall be provided; the Xerox -provided contract number; and any applicable SLAs. An Order must reference the applicable Services Contract number, and may also be in the form of a Services and Solutions Order ("SSO"), a Xerox Order Agreement ("XOA") (which is used solely for an outright purchase by Customer under the EP module of this Agreement) or a Customer -issued PO. A Statement of Work may be part of an Order but cannot function as a stand-alone ordering document. gg. Output of Services means electronic images created by scanning tangible documents containing Customer Content, all full or partial copies (tangible and intangible) of Customer Content, and all reports and other documentation, photographs, images, impressions, and other materials (tangible and intangible) created by Xerox and delivered to Customer under an Order, but shall not include Third Party Software, or Xerox Intellectual Property. hh. Privacy Laws means state, federal, and international laws relating to data privacy and data protection as applicable to Xerox's performance of the Services. FL -University of So. Florida Master Agreement (Schedule A) 3 11/26/2017 207 ii. Private Information means Protected Health Information ("PHP') as defined by the Health Insurance Portability and Accountability Act ("HIPAA"), Non -Public Personal Information ("NPI") as defined by the Gramm -Leach Bliley Act ("GLBA") and equivalent categories of protected health and financial information under applicable state Privacy Laws. J. Products means Software, Equipment, Third Party Products and/or Consumable Supplies supplied by Xerox and provided to Customer pursuant to an Order. kk. Purchase Order or PO means a document containing the applicable Services Contract number that is issued by Customer to Xerox for Order entry purposes only. Any terms in a PO are not binding and are of no force or effect. II. Purchased Equipment means Equipment or Third Party Hardware that Xerox sells outright to Customer under the EP Module. mm. Remote Data means data that is automatically collected by Xerox or transmitted to or from Xerox by Equipment or Third Party Products connected to Customer's network. Examples of Remote Data include product registration, meter read, supply level, equipment configuration and settings, software version, and problem/fault code data. nn. Remote Data Access means electronic transmission of Remote Data to or from a secure offsite location. oo. Residuals means general ideas, concepts, know-how, methods, processes, technologies, algorithms or techniques related to the Services, which are in non -tangible form and retained in the unaided memory of persons who have had access to Confidential Information. pp. Service Level Agreements or SLAB means the levels of performance for the Services, if applicable, as set out in the applicable Order. qq. Services means managed services (e.g. copy center and mailroom services), consultative services, and/or professional services, including, but not limited to, assessment, document management, and managed and centralized print services, as more fully described in the applicable Order. Standard back-office administrative and contract support functions, such as billing, contract management and order processing, are not Services, but are included in the pricing provided for the Services hereunder. rr. Services Contract means the applicable terms and conditions of this Agreement, the first Order having a particular assigned Services Contract number, and each additional Order, if any, with the same Services Contract number. ss. Software means Base Software and Application Software. tt. Statement of Work or SOW means a document which references the applicable Services Contract number and specifies the details of a particular transaction where Customer wishes to acquire Services, Maintenance Services and/or Products from Xerox under this Agreement. uu. Supplier Equipment means devices which are supplied by Xerox to the Customer during the term of an Order. Supplier Equipment may be Equipment or Third Party Hardware. vv. Taxes means any and all taxes of any kind or nature, however denominated, imposed or collected by any governmental entity, including but not limited to federal, state, provincial, or local net income, gross income, sales, use, transfer, registration, business and occupation, value added, excise, severance, stamp, premium, windfall profit, customs, duties, real property, personal property, capital stock, social security, unemployment, disability, payroll, license, employee or other withholding, or other tax, of any kind whatsoever, including any interest, penalties or additions to tax or additional amounts in respect of the foregoing. ww. Third Party Funds means funds Xerox provides to Customer to acquire Third Party Hardware or to license Third Party Software and/or to retire debt on existing Third Party Hardware. FL -University of So. Florida Master Agreement (Schedule A) 11/26/2017 xx. Third Party Hardware means non -Xerox brand equipment. yy. Third Party Products means, collectively, Third Party Hardware and Third Party Software. zz. Third Party Software means non -Xerox brand software. aaa. Transaction Taxes means any and all Taxes that are required to be paid in respect of any transaction and resulting Charges under this Agreement and any transaction documents, including but not limited to sales, use, services, rental, excise, transaction - based gross receipts, and privilege Taxes. bbb. XDM Customer Views means a limited set of features such as printer error messages, basic printer status, troubleshoot (e.g., access printer web page, submit test page, reboot printer, retrieve audit logs) and upgrade printer (e.g., add upgrade file, delete upgrade file, run upgrade, delete upgrade task, restart upgrade task) that are available through the Xerox Tool known as Xerox Device Manager. ccc. Xerox Confidential Information means Confidential Information belonging to Xerox and includes, without limitation, whether marked as such or not, any services procedures manuals, Xerox Tools, Xerox Client Tools and Xerox Intellectual Property. ddd. Xerox Client Tools means certain proprietary software used to provide certain Services, and any modifications, enhancements, improvements thereto and derivative works thereof that are licensed to Customer in accordance with GEN 1.8(d). eee. Xerox Intellectual Property means all intellectual property and associated intellectual property rights including patent, trademark, service mark, copyright, trade dress, logo and trade secret rights which exist and belong to Xerox as of the Effective Date or that may be created by Xerox after the Effective Date, including without limitation, Software, Data, Remote Data, Xerox Tools and Xerox Client Tools, and excluding Customer Confidential Information and Output of Services. fff. Xerox Products means Equipment, Software and Consumable Supplies acquired pursuant to this Agreement. ggg. Xerox Tools means certain proprietary tools used by Xerox to provide certain Services, and any modifications, enhancements, improvements thereto and derivative works thereof. GENERAL MODULE GEN 1. — GENERAL The terms and conditions in this General (GEN) Module apply to all Services, Maintenance Services, and Products acquired by Customer under this Agreement. GEN 1.1— AGREEMENT STRUCTURE a. General Contract Structure. The parties intend for this Agreement to serve as a master agreement stating the terms and conditions governing separate transactions between (i) Xerox and Customer, and (ii) Xerox and Customer Affiliates. Xerox will provide, and Customer will procure, Services, Maintenance Services and/or Products in accordance with the terms and conditions stated in this Agreement, any Services Contract(s), and any applicable Orders. b. Orders and Services Contracts. Xerox may accept Orders either by its signature or by commencing performance. Xerox reserves the right to review and approve Customer's credit, or in the case of an Order by a Customer Affiliate, such Affiliate's credit, prior to acceptance of an Order and the entity placing the Order hereby authorizes Xerox or its agent to obtain credit reports from commercial credit reporting agencies for this purpose. If a Customer Affiliate establishes a Services Contract by placing an Order hereunder, it will be the "Customer" for the purposes of such Services Contract. FL -University of So. Florida Master Agreement (Schedule A) 5 11/26/2017 209 Orders for Services, Maintenance Services, and/or Products are grouped into Services Contracts. Each separate Services Contract will be established when the first Order is placed that bears a new Services Contract number assigned by Xerox and Xerox accepts that Order. Each Services Contract will be assigned its own Services Contract number that will consist of this Agreement's number followed by a three digit extension. Each Services Contract constitutes a separate contract under this Agreement. Customer may add Services, Maintenance Services or Products to an existing Services Contract by submitting additional Orders referencing the applicable Services Contract number. Each Services Contract will consist of the terms and conditions of this Agreement, the first Order under the Services Contract number and each additional Order with the same Services Contract number. iii. Unless Customer provides notice in writing at least thirty (30) days before the end of the term of an Order of its intention not to renew, the Order will renew automatically on a month-to-month basis on the same terms and at the same price. iv. Orders may be submitted by hard copy or electronic means and those submitted electronically will be considered: (a) a "writing" or "in writing;" (b) "signed" by the Customer; (c) an "original" when printed from electronic records established and maintained in the ordinary course of business; and (d) valid and enforceable. GEN 1.2 — CHARGES, PAYMENT AND DEFAULT a. Charges. Charges for the particular Services, Maintenance Services, and/or Products will be set forth in an Order and are exclusive of any and all Transaction Taxes. Xerox's then current overtime rates will apply to Services requested and performed outside Customer's standard working hours. b. Payment. Customer agrees to pay Xerox all undisputed amounts due under each invoice via check, Automated Clearing House debit, Electronic Funds Transfer, or direct debit from Customer's bank account within thirty (30) days from invoice receipt, which is deemed to occur three (3) days from the invoice date. Restrictive covenants submitted for or with payment to indicate that it is in full satisfaction of an invoice will not operate as an accord and satisfaction to reduce Customer's payment obligations if it is not, in fact, full payment. For any payment not received by Xerox within ten (10) days after the due date, Xerox may charge, and Customer agrees to pay, a late charge of the greater of $25 or five percent (5.0%) of the amount overdue (not to exceed the maximum amount permitted by applicable law) as reasonable collection costs. If Customer disputes any amount included in an invoice, then (i) Customer must notify Xerox of the dispute in writing, (ii) such notice shall include a description of the items Customer is disputing and the reason such items are being disputed; and (iii) Customer shall promptly exercise its best efforts to work with Xerox to resolve such dispute. Pending resolution of such disputed amount, Customer shall pay any and all undisputed amounts within thirty (30) days of invoice date, including the MMC which Customer agrees shall not be subject to dispute at any time. C. Default. Customer will be in default if Xerox does not receive any payment within fifteen (15) days after the date it is due, or if Customer breaches any other obligation under this Agreement, any Services Contract, or any other agreement with Xerox. If Customer, defaults, Xerox, in addition to its other remedies (including cessation of Services, Maintenance Services and/ or Consumable Supplies), may require immediate payment of (1) all amounts then due, plus interest on all amounts due from the due date until paid at the rate established by applicable law, or, absent such law, the rate of 1.5% per month, and (2) any early termination charges set forth in this Agreement or in the applicable Services Contract and/or Order(s). GEN 1.3 — TAXES FL -University of So. Florida Master Agreement (Schedule A) 11/26/2017 210 Customer will be responsible for all Transaction Taxes. Transaction Taxes will be included in Xerox's invoice unless Xerox receives proof of Customer's tax exempt status. Customer shall not be responsible for Excluded Taxes. GEN 1.4 — RESERVED. GEN 1.5 — RESERVED. GEN 1.6 — CUSTOMER RESPONSIBILITIES Customer agrees to perform its responsibilities under this Agreement in support of the Services, Maintenance Services, or Products in a timely manner. Customer agrees: a. that Products acquired hereunder are ordered for Customer's (or its Affiliates') own internal business use (rather than resale, license and/or distribution outside of Customer's organization) and will not be used for personal, household or family purposes; b. to (1) provide Xerox and its agents with timely and sufficient access, without charge, to Customer Facilities required by Xerox to perform Services and Maintenance Services and/or provide Products, and (2) ensure that Customer Facilities are suitable for the Services, Maintenance Services and/or Products, safe for Xerox personnel, and fully comply with all applicable laws and regulations, including without limitation any federal, state and local building, fire and safety codes; C. to provide Xerox and its agents with timely and sufficient use of and access, without charge, to Customer Assets required by Xerox to perform Services and Maintenance Services and/or provide Products, and to grant Xerox and its agents sufficient rights to use, access and, if agreed, modify the same; d. to acquire or continue maintenance, repair and software support services, without charge to Xerox, for all Customer Assets that Customer permits Xerox to use or access; e. to maintain the manufacturer's maintenance agreement for any Third Party Products; f. to provide Xerox with access to appropriate members of Customer personnel, as reasonably requested by Xerox, in order for Xerox to perform the Services and Maintenance Services and/or provide Products; g. to respond to and provide such documentation, data and other information as Xerox reasonably requests in order for Xerox to perform the Services and Maintenance Services and/or provide Products; h. to contract for the minimum types and quantities of Equipment and Consumable Supplies required by Xerox to perform the Services and Maintenance Services; i. that, as between Xerox and Customer, Customer alone is responsible for backing up its Customer Content and Xerox shall not be responsible for Customer's failure to do so; j. that as between Xerox and Customer, Customer alone is responsible for determining whether Customer Content provided to Xerox (i) is libelous, defamatory or obscene, or (ii) may be duplicated, scanned or imaged without violating a third party's intellectual property rights; and k. to provide contact information for Equipment such as name and address of Customer contact. GEN 1.7— WARRANTIES Mutual Warranties. Each party represents and warrants to the other, as an essential part of this Agreement, that: it is duly organized and validly existing and in good standing under the laws of the state of its incorporation or formation; this Agreement and the Orders hereunder have been duly authorized by all appropriate corporate action for signature; and FL -University of So. Florida Master Agreement (Schedule A) 11/26/2017 211 iii. the individual signing this Agreement, and all Orders (where applicable), is duly authorized to do so. Xerox Warranties. i. Services Warranty. Xerox warrants to the Customer that the Services will be performed in a professional and workmanlike manner by Xerox personnel with appropriate training, experience and skills in accordance with the applicable Order. If the Services do not comply with the SLAB or other requirements set forth in the applicable Order, Customer will notify Xerox in writing detailing its concerns and, within 10 days following Xerox's receipt of such notice, Xerox and Customer will meet, clarify the Customer's concern(s) and begin to develop a corrective action plan. As Customer's exclusive remedy under this warranty for Xerox's non-compliance with this warranty, Xerox will either modify the Services to comply with the applicable SLAs or other requirements or re -do the work at no additional charge within 60 days of finalizing the plan or another time period agreed to in writing by the parties. ii. Equipment Warranty. Any Equipment warranty to which Customer is entitled shall commence upon the Date of Installation. Use by Customer of consumables not approved by Xerox that affect the performance of the Equipment may invalidate any applicable warranty. iii. Third Party Product Warranty. Where Xerox in its sole discretion selects and supplies Third Party Products, Xerox warrants they will operate substantially in conformance with applicable SLAB or other requirements in the Order. Customer's sole remedy for breach of this warranty is to return the Third Party Product to Xerox and then receive a refund of any fees paid for such non- conforming Third Party Product, less a reasonable usage fee. If Customer requests a specific Third Party Product, Xerox will pass-through as permitted any third party warranties. iv. Exclusions. Xerox shall not be responsible for any delay or failure to perform the Services or provide Products, including achieving any associated SLAB or other requirements in the applicable SOWS, DOSs or Orders, to the extent that such delay or failure is caused by: (a) Customer's failure or delay in performing its responsibilities under this Agreement; (b) reasons outside Xerox's reasonable control, including Customer Assets, Customer Content, or delays or failures by Customer's agents, suppliers or providers of maintenance and repair services for Customer Assets; or (c) unauthorized modifications to Equipment, Third Party Hardware or the Output of Services. C. Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND XEROX DISCLAIMS AND CUSTOMER WAIVES ALL OTHER WARRANTIES INCLUDING ANY WARRANTY OF MERCHANTABILITY, NON -INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY PROVIDED HEREIN AND AS PERMITTED BY APPLICABLE LAW, CUSTOMER WAIVES ALL RIGHTS AND REMEDIES CONFERRED UPON A LESSEE BY ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE. d. The warranties set forth in this Agreement are expressly conditioned upon the use of the Services, Products and Output of Services for their intended purposes in the systems environment for which they were designed and shall not apply to any Services, Products or Output of Services which have been subject to misuse, accident or alteration or modification by Customer or any third party. FL -University of So. Florida Master Agreement (Schedule A) 11/26/2017 212 GEN 1.8 — INTELLECTUAL PROPERTY OWNERSHIP a. Customer Intellectual Property. Customer grants to Xerox a non-exclusive, royalty - free, fully -paid up, worldwide license to use Customer Intellectual Property, Customer Content and Output of Services only for purposes of, and only to the extent required for, providing Services, Maintenance Services or Products under this Agreement. Xerox agrees not to decompile or reverse engineer any Customer Intellectual Property. Except as expressly set forth in this Agreement, no rights to any Customer Intellectual Property are granted to Xerox. b. Ownership of Output of Services and License to Xerox Intellectual Property. Except to the extent that the Output of Services may incorporate any Xerox Intellectual Property, the Output of Services shall be the sole and exclusive property of Customer. To the foregoing extent, Xerox hereby assigns, grants, conveys, and transfers to Customer all rights in and to the Output of Services for the applicable Order. To the extent that the Output of Services may incorporate any Xerox Intellectual Property, Xerox grants Customer a non-exclusive, perpetual, fully paid-up, worldwide right to use, display and reproduce the Xerox Intellectual Property only as required for use of the Output of Services for Customer's customary business purposes and not for resale, license or distribution outside of Customer's organization. If XDM Customer Views are to be provided under an SOW, Xerox grants Customer a limited license to access and use the XDM Customer Views only for the purpose of receiving Services under the SOW. Customer agrees not to decompile or reverse engineer any Xerox Intellectual Property. Except as expressly set forth in this Agreement, no rights to any Xerox Intellectual Property are granted to Customer. C. Xerox Tools. Xerox Tools may be used by Xerox to provide certain Services. Xerox and its licensors will at all times retain all right, title and interest in and to Xerox Tools including without limitation, all intellectual property rights therein, and, except as expressly set forth herein, no rights to use, access or operate the Xerox Tools are granted to Customer. Xerox Tools will be installed and operated only by Xerox or its authorized agents. Customer will not decompile or reverse engineer any Xerox Tools, or allow others to engage in same. Customer will have access to Data and reports generated by the Xerox Tools and stored in a provided database as set forth in the applicable SOW. Xerox may remove Xerox Tools at any time in Xerox's sole discretion, provided that the removal of Xerox Tools will not affect Xerox's obligations to perform Services, and Customer shall reasonably facilitate such removal. d. Xerox Client Tools. Xerox grants to Customer a non-exclusive, non -transferable, non - assignable (by operation of law or otherwise) license to install, use and access the Xerox Client Tools only for the purpose of receiving the Services for which they were provided. Customer may not: (i) distribute, copy, modify, create derivatives of, decompile, or reverse engineer the Xerox Client Tools, except as permitted by applicable law; or, (ii) allow others to engage in same. Title to the Xerox Client Tools and all intellectual property rights therein shall, at all times, reside solely with Xerox and its licensors. Certain Xerox Client Tools may be subject to mandatory third party flow -down terms and conditions, which will be provided separately. e. Data Collection and Use. Data collected by the Xerox Tools is transmitted by a Xerox Tool to a remotely hosted server that hosts other Xerox Tools. The automatic data transmission capability will not allow Xerox to read, view or download any Customer documents or other information residing on or passing through the Equipment or Third Party Hardware or Customer's information management systems. GEN 1.9 — INDEMNIFICATION General Indemnification. Xerox and, to the extent allowed by applicable law, the Customer, if promptly notified and given the right to control the defense, shall indemnify, defend and hold harmless the other party, its Affiliates, and their respective officers, directors, employees, agents, successors and assigns, from and against all claims by a third party for losses, damages, costs or liability of any kind (including expenses and FL -University of So. Florida Master Agreement (Schedule A) 9 11/26/2017 213 reasonable legal fees) that a court finally awards such party ("Claims") for bodily injury (including death) and damage to real or tangible property, to the extent proximately caused by the negligent acts or omissions, or willful misconduct of the indemnifying party (or its Affiliates) in connection with this Agreement. b. Xerox Indemnification. Xerox shall, if promptly notified by Customer (or its Affiliate(s)) and given the right to control the defense, indemnify, defend and hold harmless Customer, its Affiliates and their respective officers, directors, employees, agents successors and assigns, for all Claims that Xerox Products or Customer's use of the Services provided by Xerox under this Agreement infringe a U.S. patent, copyright or other intellectual property right. Notwithstanding anything to the contrary herein, Xerox shall have no obligation under this subsection GEN 1.9(b) to the extent any Claim is based on or arises out of any (i) Services performed using Customer Assets, Customer Content or other materials provided to Xerox by Customer for which Customer failed to provide sufficient rights to Xerox; (ii) infringement by Services resulting from Customer's direction, specification or design, (iii) modification or alteration to such Xerox Products or Services not approved in writing by Xerox; (iv) any combination or use of the Xerox Products or Services not approved in writing by Xerox; (v) use of the Xerox Products or Services not in accordance with the applicable Documentation; or (vi) Customer's failure to use corrections or enhancements to the Xerox Products provided by Xerox. If a Claim is made, or appears likely to be made, pursuant to this subsection GEN 1.9(b), Customer agrees to permit Xerox, at Xerox's sole option and expense, to obtain the right to enable Customer to continue to use such Xerox Products, to make them non -infringing or to replace them with items that are at least functionally equivalent. If Xerox determines that none of these alternatives is reasonably available, Customer agrees to return such Xerox Products to Xerox upon Xerox's written request. Xerox will then give Customer a refund equal to the amount Customer paid Xerox for such Xerox Products less a reasonable usage fee. C. Customer Indemnification. To the extent allowed by applicable law, Customer shall, if promptly notified by Xerox (or its Affiliate(s)) and given the right to control the defense, indemnify, defend and hold harmless Xerox, its Affiliates, and their respective officers, directors, employees, agents, successors and assigns, for all Claims for intellectual property infringement to the extent such Claim is based on (i) Xerox's use of Customer Assets or customer's content or materials used in performing Services or providing Products under this Agreement or any Order entered into hereunder; (ii) Customer's use of the Products or Services not in accordance with this Agreement or the applicable Documentation; and (iii) Claims arising out of or related to Section GEN 1.9(b)(i)-(vi) or Customer's failure to perform its responsibilities under Section GEN 1.60) d. The indemnifying party is not responsible for any litigation expenses of the indemnified party or any settlements unless it pre -approves them in writing. GEN 1.10 — LIMITATION OF LIABILITY Except as prohibited by law, the following limitations apply a. NO CONSEQUENTIAL DAMAGES. SUBJECT TO SECTION GEN 1.10(c), IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND INDEMNITY) OR OTHERWISE, AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. b. LIMITATION ON RECOVERY. SUBJECT TO SECTION GEN 1.10(c), THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY (AND ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS) FOR DIRECT DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, H—University of So. Florida Master Agreement (Schedule A) lm 11/26/2017 214 WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND INDEMNITY), OR OTHERWISE, WILL BE LIMITED TO AN AMOUNT EQUAL TO THE LESSER OF THE AMOUNT OF ALL CHARGES PAID BY CUSTOMER TO XEROX UNDER THE ORDER UNDER WHICH THE CLAIM AROSE (LESS PASS THROUGH EXPENSES SUCH AS, WITHOUT LIMITATION, POSTAGE) IN THE TWELVE (12) MONTHS PRIOR TO THE DATE UPON WHICH THE CLAIM AROSE OR $200,000. THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT AND ANY ORDERS HEREUNDER WILL NOT ENLARGE OR EXTEND THIS LIMITATION OF DAMAGES, NOTWITHSTANDING THE FOREGOING, NOTHING SET FORTH IN THIS SECTION GEN 1.10(b) SHALL LIMIT CUSTOMER'S OBLIGATION TO PAY XEROX ALL CHARGES AND EXPENSES FOR PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT. C. EXCEPTIONS. THE LIMITATIONS SET FORTH IN SECTION GEN 1.10 SHALL NOT APPLY WITH RESPECT TO: I. EITHER PARTY'S WILLFUL MISCONDUCT OR FRAUD; ii. A PARTY EXCEEDING ITS RIGHTS, IF ANY, TO THE OTHER PARTY'S INTELLECTUAL PROPERTY OR MISAPPROPRIATING OR INFRINGING THE OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS AS GRANTED UNDER THIS AGREEMENT. GEN 1.11 — TERM AND TERMINATION This Agreement shall commence on the Effective Date and shall continue for a term of months, and continue on a month-to-month basis thereafter until expressly renewed by mutual written agreement or terminated by either party upon thirty (30) days' written notice. Upon termination, Customer shall permit Xerox to enter Customer Facilities for purposes of removing the Products, Xerox Tools and/or Xerox Client Tools. Each Order hereunder shall have its own term, which shall be stated in the Order. In the event the Agreement expires or is terminated, each Services Contract in effect at such time shall remain in full force and effect until the expiration or termination of all Orders constituting such Services Contract (including any extensions or renewals thereof) and shall at all times be governed by, and be subject to, the terms and conditions of this Agreement as if this Agreement were still in effect. Termination of any Order shall not affect this Agreement or any other Orders then in effect. Notwithstanding any other provision in the Agreement to the contrary, should an Order be terminated prior to expiration for any reason or a unit of Third Party Hardware or any Third Party Software for which Third Party Funds have been provided is removed or replaced prior to expiration, Customer agrees to pay to Xerox, in addition to any other amounts owed under said Order, an amount equal to the remaining principal balance of the Funds together with a 15% disengagement fee, for loss of bargain and not as a penalty. GEN 1.12— CONFIDENTIALITY Obligation. Customer and Xerox acknowledge that, during the term of this Agreement and any Order hereunder, each party (or its Affiliates) may be provided with or have access to, certain Confidential Information belonging to the other party (or its Affiliates). The parties will ensure that their employees comply with their respective corporate policies and procedures regarding the disclosure of Confidential Information. The parties agree to use the Confidential Information provided under this Agreement only for purposes directly related to the performance of obligations and use of rights granted under this Agreement. The receiving party may not disclose Confidential Information to third parties unless such third party has a need to know such Confidential Information in order to perform under this Agreement and has agreed in writing to be bound by terms no less restrictive than those set forth herein. Each party shall be responsible for any breaches of the obligations in this Section by its employees and such third parties. The receiving party shall protect the disclosing party's Confidential Information with the same degree of care that it uses to protect its own confidential information of like importance, but not less than reasonable care. Each party agrees not to disclose the terms and conditions of this Agreement, all Services Contracts and Orders, and any attachments and exhibits thereto, without the other party's prior written consent. Xerox may use Customer as a reference with other FL -University of So. Florida Master Agreement (Schedule A) 12 11/26/2017 215 customers, including in marketing materials. Xerox may disclose the identity and address of Customer to Xerox's third party licensors if contractually required for royalty reporting purposes. Unilateral Cancellation/Public Records Law. (applicable to State and Local Florida Government Customers only) Notwithstanding any confidentiality provisions in this Agreement, as an agency or subdivision of the State of Florida, Customer is subject to Chapter 119, Florida Statutes ("Florida Public Records Act"). As such, this Agreement and all associated materials and information may be considered a "public record." While Customer will endeavor not to voluntarily disclose this Agreement or other associated information, it reserves the absolute right to interpret its legal obligations under the Florida Public Records Act. Any necessary disclosure of this Agreement or any other information pursuant to a public records request shall not be considered a breach of any confidentiality provisions. Further, Xerox may be considered a contractor of a public agency as defined in § 119.0701(1)(b), and may be required by law to keep and maintain public records related to its services; provide copies of, or allow inspection of, such public records to Customer upon request; and ensure that exempt or confidential and exempt records are not disclosed except as authorized by law. Upon completion of this Agreement or performance of the services, Xerox may transfer all public records related to the services to Customer, at no cost to Customer, or may keep such public records in accordance with the applicable state record retention requirements. If Xerox chooses to transfer such records to Customer, Xerox shall destroy any duplicate records in its possession that are exempt or confidential and exempt from disclosure. CUSTOMER CANNOT PROVIDE LEGAL ADVICE TO XEROX REGARDING ITS LEGAL DUTIES. HOWEVER, XEROX MAY CONTACT CUSTOMER'S CUSTODIAN OF PUBLIC RECORDS AT <INSERT EMAIL> OR <INSERT PHONE> IF XEROX HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES TO XEROX'S DUTY TO PROVIDE AND MAINTAIN PUBLIC RECORDS RELATING TO THIS AGREEMENT. Customer may unilaterally cancel the Agreement for refusal by Xerox to comply with the provisions of Chapter 119, Florida Statutes. C. Exclusions. The obligations of confidentiality will not apply to any Confidential Information that: (1) was in the publicly available prior to, at the time of, or subsequent to the date of disclosure through no fault of the receiving party; (2) was rightfully in the receiving party's possession or the possession of any third party free of any obligation of confidentiality; or (3) was developed by the receiving party's employees independently of and without reference to any of the other party's Confidential Information. d. Return of Information. Upon termination or expiration of this Agreement or an Order, except as otherwise set forth hereunder, each party shall cease use of the other party's Confidential Information and other data and, upon request, shall (1) return all such Confidential Information and any copies thereof, or (2) permanently destroy suchConfidential Information and certify that such Confidential Information has been so destroyed; provided, however, that any obligations regarding removal of Customer Confidential Information stored on hard drives on Equipment owned by Xerox and any costs associated with such removal will be set forth in the applicable Order. ;. Disclosure under Legal Requirement. If the recipient of Confidential Information is required to disclose Confidential Information pursuant to a court order or by law or regulation, that party will (1) notify the disclosing party of the obligation to make such disclosure, and (2) reasonably cooperate with the disclosing party if the disclosing party FL -University of So. Florida Master Agreement (Schedule A) 13 11/26/2017 216 seeks a protective order, but any costs incurred by the receiving party will be reimbursed by the disclosing party, except for costs of the receiving party's employees. Duration of Confidentiality Obligation. Except for Private Information and Xerox Intellectual Property, the obligations set forth in this Section shall continue for one (1) year after termination or expiration of this Agreement or the Order under which such Confidential Information was disclosed, whichever occurs later. The duration of confidentiality obligations with respect to Private Information shall be governed by applicable Privacy Laws. Confidentiality obligations with respect to Xerox Intellectual Property shall continue so long as it continues to be Xerox trade secrets, as defined by § 688.002(4), Florida Statutes, as applicable.. Residual Rights. Each party understands that the other party shall be free to use for any purpose the Residuals resulting from access to Confidential Information as a result of the performance of its obligations under an Order, provided that such party shall maintain the confidentiality of such Confidential Information as provided herein. Neither party shall pay royalties for the use of Residuals. However, the foregoing shall not be deemed to grant either party a license under the other party's copyrights or patents. GEN 1.13— DATA PROTECTION/PRIVACY a. To the extent that Privacy Laws are applicable to Customer and Xerox in connection with the performance of Services, each party agrees to comply with the applicable provisions of such Privacy Laws. b. Xerox has adopted reasonable physical, technical and organizational safeguards designed to prevent accidental, unauthorized or unlawful loss, disclosure, access, transfer or use of Private Information. Xerox will promptly notify Customer in the event of any known unauthorized or unlawful loss, disclosure, access, transfer or use of Private Information. GEN 1.14 — GOVERNING LAW AND JURISDICTION This Agreement, each respective Order, and any dispute or claim arising out of or in connection with this Agreement or such Order, shall be governed by and construed in accordance with the laws of Florida without regard to its conflict of laws provisions and submitted to the exclusive jurisdiction of the federal and state courts of Florida. The parties agree to waive their rights to a jury trial. GEN 1.15 — RESERVED. GEN 1.16— FORCE MAJEURE Except for Customer's absolute and unconditional obligation to make all required payments of any amounts not properly disputed under this Agreement, neither Customer nor Xerox shall be liable to the other party during any period in which its performance is delayed or prevented, in whole or in part, by a Force Majeure Event. If such a circumstance occurs, the party whose performance is delayed or prevented shall undertake reasonable action to notify the other party thereof. GEN 1.17 — INSURANCE COVERAGE Xerox shall maintain the following limits of insurance coverage during the term of this Agreement: a. Where required by law, Workers Compensation, at statutory limits; b. Employers Liability, with $1,000,000 USD limit of liability or at statutory limits, whichever is greater; C. Commercial General Liability, including Products - Completed Operations coverage and Broad Form Contractual, with $2,000,000 USD limit of liability per occurrence for Bodily Injury and Property Damage; and, d. Where applicable, Automobile Liability, with a combined single limit of liability of $2,000,000 USD per accident or at statutory limits, whichever is greater. GEN 1.18 — FUNDING (Applies To State & Local Government Customers Only) Customer represents and warrants that all payments due and to become due during Customer's current fiscal year are within the fiscal budget of such year and are included within an unrestricted FL -University of So. Florida Master Agreement (Schedule A) 14 11/26/2017 217 and unencumbered appropriation currently available for the acquisition of the Products, and it is Customer's intent to use the Products for the entire initial term and to make all payments required under the Agreement or an Order. If (i) through no action initiated by Customer, Customer's governing body does not appropriate funds for the continuation of the Agreement or an Order for any fiscal year after the first fiscal year and has no funds to do so from other sources, and (ii) Customer has made a reasonable but unsuccessful effort to find an assignee within Customer's general organization who can continue the Agreement or an Order, the Agreement or the Order may be terminated. To effect this termination, Customer must, 30 days prior to the beginning of the fiscal year for which Customer's governing body does not appropriate funds for the upcoming fiscal year, notify Xerox that Customer's governing body failed to appropriate funds and that Customer has made the required effort to find an assignee. Customer's notice must certify that canceled Equipment is not being replaced by equipment performing similar functions during the ensuing fiscal year. Customer agrees to release the Equipment to Xerox and, when returned, the Equipment will be in good condition and free of all liens and encumbrances. Customer will then be released from any further payments obligations beyond those payments due for the current fiscal year. GEN 1.19— COMPLIANCE WITH LAWS AND POLICIES Xerox and Customer shall comply with all applicable laws and regulations in the performance of their respective obligations under this Agreement. Xerox agrees to comply with Customer's internal policies regarding security and safety at Customer Facilities that are reasonable and customary under the circumstances and which do not conflict with the terms of this Agreement. Customer agrees to provide Xerox with reasonable prior written notice of such policies and any changes to such policies. If a change in Customer policy results in incremental costs to Xerox, Xerox may, upon providing notice to Customer, pass such costs on to Customer. GEN 1.20 — MISCELLANEOUS a. Copies of Agreement. Except as required by law, both parties agree that any reproduction of this Agreement made by reliable means (for example, photocopy or facsimile) shall be considered an original. Xerox may retain a hardcopy, electronic image, photocopy or facsimile of this Agreement and each Order hereunder, which shall be considered an original and shall be admissible in any action to enforce said Agreement or Order. b. Amendment. All changes to this Agreement must be made in a writing signed by Customer and Xerox. Any amendment of this Agreement shall not affect the obligations of either party under any then -existing Orders, which shall continue in effect unless the amendment expressly states that it applies to such existing Orders. An amendment to a Services Contract shall reference the number of the Services Contract that it amends. C. No Waiver; Severability; Survival. The failure by Customer or Xerox to insist upon strict performance of any of the terms and conditions in this Agreement or to exercise any rights or remedies will not be construed as a waiver of the right to assert those rights or to rely on that term or condition at any time thereafter. If any provision is held invalid by any arbitrator or any court under applicable law, such provision shall be deemed to be restated as nearly as possible to reflect the original intention of the parties in accordance with applicable law. The remainder of this Agreement shall remain in full force and effect. Any terms and conditions of this Agreement or any Order which by their nature extend beyond the termination or expiration of the Agreement or Order will survive such termination or expiration. d. Independent Contractors. Xerox shall perform all Services hereunder in the capacity of independent contractor and not as Customer's employee, agent, or representative. Xerox employees shall not be entitled to privileges of employment that Customer may provide to Customer's employees, and Xerox shall be responsible for payment of all unemployment, social security, federal (state and local, as necessary) and other payroll taxes in regard to its employees involved in the performance of the Services. Neither of the parties, nor their respective employees or Affiliates, shall be authorized to conclude contracts in the name of the other party, or to act or appear as a representative of the other, whether in performing the Services or otherwise. FL -University of So. Florida ;Master Agreement (Schedule A) 15 11;26,,2017 L e. No Hiring. During the term of an Order under which Xerox is providing Services and for a period of one (1) year thereafter, Customer and Xerox each agree not to hire, solicit, or employ any of the other's personnel who have been engaged in the provision of services or the performance of this Agreement, unless prior written consent is obtained from the other party. Such prohibition shall not apply to hiring as a result of general public solicitations of employment. Should one of the parties hire the other party's personnel in violation of this Agreement, the violating party shall immediately pay to the other, as liquidated damages and as the sole remedy for such violation, an amount equal to such personnel's then current annual compensation (or the amount paid to such person during the previous twelve (12) months in the case of an independent contractor). f. Assignment. Except for Xerox's assignment to an Affiliate or to a third party for the purposes of securitizing or factoring, neither party may assign this Agreement and any Order(s) hereunder without the prior written consent of the other party. In the event of a permitted assignment by Xerox, each successive assignee of Xerox will have all of the rights but none of the obligations of Xerox pursuant to this Agreement. Customer will continue to look to Xerox for performance of Xerox's obligations hereunder and Customer hereby waives and releases any assignees of Xerox from any such claim. Customer will not assert any defense, counterclaim, or setoff that Customer may have or claim against Xerox against any assignee of Xerox. g. Communication Authorization. Customer authorizes Xerox or its agents to communicate with Customer by any electronic means (including cellular phone, email, automatic dialing, and recorded messages) using any phone number (including cellular) or electronic address that Customer provides to Xerox. h. Limitation on Charges. In no event will Xerox charge or collect any amounts in excess of those allowed by applicable law. Any part of an Order that would, but for this Section, be construed to allow for a charge higher than that allowed under any applicable law, is limited and modified by this Section to limit the amounts chargeable under such Order to the maximum amount allowed by law. If, in any circumstances, an amount in excess of that allowed by law is charged or received, such charge will be deemed limited to the amount legally allowed and the amount received by Xerox in excess of that legally allowed will be applied to the payment of amounts owed or will be refunded to Customer. i. Order of Precedence; Entire Agreement. This Agreement, including all schedules, attachments, exhibits and amendments hereto and the Services Contract(s) hereunder, constitutes the entire agreement between the parties as to the subject matter and supersedes all prior and contemporaneous oral and written agreements regarding the subject matter hereof and neither party has relied on or is relying on any other information, representation, discussion or understanding in entering into and completing the transactions contemplated in this Agreement. The parties agree that except as expressly set forth in this Agreement, in the event of any conflict between terms and conditions, the order of precedence shall be this Agreement, the applicable Orders under the Services Contract (excluding Customer POs), and the SOW or DOS, as applicable. If a term in this Agreement expressly provides for a term in an Order to take precedence, such provision in the Order shall prevail to the extent of any conflict. Notwithstanding the foregoing, provisions in the General Module of this Agreement related to: (1) Section GEN 1.8 (Intellectual Property Ownership); (2) Section GEN 1.9 (Indemnification); (3) Section GEN 1.10 (Limitation of Liability); (4) Section GEN 1.12 (Confidentiality); and (5) Section GEN 1.3 (Taxes), will prevail over conflicting provisions in any other contractual document. SERVICES MODULE SVC 1 — TERMS AND CONDITIONS SPECIFIC TO SERVICES In addition to the terms and conditions in the General (GEN) Module, the following terms and conditions apply to Xerox's performance of Services. SVC 1.1 — SCOPE OF SERVICES Subject to the terms and conditions of this Agreement, Services will be performed by Xerox and/or its Affiliates in accordance with the requirements set forth in an Order. If Customer fails to perform or is 219 delayed in performing any of its responsibilities under this Agreement, such failure or delay may prevent Xerox from being able to perform any part of the Services or Xerox -related activities. Xerox shall be entitled to an extension or revision of the applicable term of the Order (which may include setting a new expected date for commencement of Services) or to an equitable adjustment in performance metrics associated with such failure or delay. SVC 1.2 — CHARGES FOR SERVICES Charges for Services are set forth in the applicable Order. Charges are based upon information exchanged between Customer and Xerox, which is assumed to be complete and accurate, and also depend upon other factors such as the timely performance by Customer of its responsibilities. If: (a) such information should prove to be incomplete or inaccurate in any material respect; or (b) there is a failure or delay by the Customer in performing its responsibilities under this Agreement or an Order which results in Xerox incurring a loss or additional cost or expense, then the charges shall be adjusted to reflect proportionately the impact of such materially incomplete or inaccurate information or such failure or delay. Charges that are indicated in an Order as being fixed are not subject to an annual percentage escalation for the initial term of such Order. If Xerox provides Services partially or early (for example, prior to the start of the initial term of an Order), Xerox will bill Customer on a pro rata basis, based on a thirty (30) day month, and the terms and conditions of this Agreement will apply. SVC 1.3 — USE OF SUBCONTRACTORS Xerox may, when it reasonably deems it appropriate to do so, subcontract any portion of the Services. Xerox shall remain responsible for any Services performed by subcontractors retained by Xerox to the same extent as if such Services were performed by Xerox. SVC 1.4 — SERVICES SCOPE CHANGES Except as otherwise set forth in an Order, either party may propose to modify the then -existing Services that are described in an Order, or to add new Services under a Services Contract. If Xerox determines such changes are feasible, Xerox will prepare and propose to Customer an Order incorporating the requested changes and any related impact to the Charges or terms. Once Customer executes and Xerox accepts the Order, Xerox will promptly proceed with the new and/or revised Services in accordance with the terms of the Order and this Agreement. SVC 1.5 — EARLY TERMINATION OF SERVICES AND LABOR Except as otherwise set forth in a Services Contract, upon ninety (90) days prior written notice, Customer may terminate or reduce any Services or labor provided pursuant to an Order without incurring early termination charges, except as set forth in the next sentence. Notwithstanding the foregoing, if any such Services or labor provided under an Order are terminated (a) by Xerox due to Customer's default or (b) by Customer and Customer acquires similar services from another supplier within six (6) months of the termination of such Services or labor, Customer shall pay all amounts due as of the termination date, together with the early termination charges, for loss of bargain and not as a penalty, stated in the Order or, if not specifically stated therein, an amount equal to the then current MMC for said terminated or reduced Services or labor multiplied by the number of months remaining in the term of the related Order, not to exceed six (6) months. SVC 1.6 — RECOVERY OF FUNDS BALANCES Notwithstanding any other provision in the Agreement to the contrary, should an Order be terminated prior to expiration for any reason or a unit of Third Party Hardware or any Third Party Software for which Third Party Funds have been provided is removed or replaced prior to expiration, Customer agrees to pay to Xerox, in addition to any other amounts owed under said Order, an amount equal to the remaining principal balance of the Funds together with a 15% disengagement fee, for loss of bargain and not as a penalty. EQUIPMENT MODULE EQP 1 — TERMS AND CONDITIONS SPECIFIC TO EQUIPMENT & THIRD PARTY HARDWARE In addition to the terms and conditions in the General (GEN) Module, the following terms and conditions apply to Equipment and Third Party Hardware provided to Customer. FL -University of So. Florida Master Agreement (Schedule A) 16 11/26/2017 220 EQP 1.1 — TERM AND DATE OF INSTALLATION The term for each unit of Equipment shall be the term stated on the applicable Order, with the commencement date based upon the actual Date of Installation. If the Date of Installation for a unit of Equipment is prior to the applicable Order start date, Xerox will bill the Customer for such Equipment on a pro rata basis, based on a thirty (30) day month, and the terms and conditions of this Agreement and the applicable Services Contract will apply as of the Date of Installation. EQP 1.2 — DELIVERY AND REMOVAL AND SUITABILITY OF CUSTOMER FACILITIES Xerox will be responsible for all standard delivery charges for Equipment and Third Party Hardware and, for Equipment or Third Party Hardware for which Xerox holds title, standard removal charges. Non-standard delivery or removal charges (including removal prior to the end of the term for any Equipment) will be at Customer's expense. The suitability of Customer Facilities for installation of Equipment or Third Party Hardware, including compliance with state and local building, fire and safety codes and any non-standard state or local installation requirements, is Customer's responsibility. EQP 1.3 — EQUIPMENT STATUS Unless Customer is acquiring previously installed equipment, Equipment will be either: (a) "Newly Manufactured," which may contain some recycled components that are reconditioned; (b) "Factory Produced New Model" which is manufactured and newly serialized at a Xerox factory, adds functions and features to a product previously disassembled to a Xerox predetermined standard, and contains new components and recycled components that are reconditioned; or (c) "Remanufactured," which has been factory produced following disassembly to a Xerox predetermined standard and contains both new components and recycled components that are reconditioned. Xerox makes no representations as to the status of any Third Party Hardware that Xerox may provide under any Order. EQP 1.4 — CONSUMABLE SUPPLIES If specified in an Order, Xerox will provide Consumable Supplies for related Equipment. Consumable Supplies are Xerox's property until used in the Equipment for which they are provided. Upon expiration or termination of the applicable Order, Customer will either return any unused Consumable Supplies to Xerox at Xerox's expense when using Xerox -supplied shipping labels, or destroy them in a manner permitted by applicable law. Xerox reserves the right to charge Customer for any Consumable Supplies usage that exceeds Xerox's published yields by more than ten percent (10%). In such a case, Xerox will notify Customer of the excess usage. If such excess usage does not cease within thirty (30) days after notice, Xerox may charge Customer for the excess usage. If Xerox provides paper under a Services Contract, upon thirty (30) days' notice, Xerox may adjust paper pricing or either party may terminate the provision of paper. EQP 1.5 — USE AND RELOCATION For any Equipment or Third Party Hardware provided by Xerox, with the exception of Purchased Equipment for which Customer has paid in full, Customer agrees that: (a) the Equipment or Third Party Hardware shall remain personal property; (b) Customer will not attach any of the Equipment or Third Party Hardware as a fixture to any real estate; (c) Customer will not pledge, sub -lease or part with possession of the Equipment or Third Party Hardware or file or permit to be filed any lien against the Equipment or Third Party Hardware; and (d) Customer will not make any permanent alterations to the Equipment or Third Party Hardware. While Equipment or Third Party Hardware is subject to an Order, Customer must provide Xerox prior written notice of all Equipment or Third Party Hardware relocations and Xerox may arrange to relocate the Equipment or Third Party Hardware at Customer's expense. While Equipment or Third Party Hardware is being relocated, Customer remains responsible for making all payments to Xerox required under the applicable Order. All parts or materials replaced, including as part of an upgrade, will become Xerox's property. Equipment or Third Party Hardware cannot be relocated outside of the U.S. until Customer has paid in full for the Equipment or Third Party Hardware and has received title thereto. Notwithstanding anything to the contrary in the foregoing, to the extent that the Equipment contains any Software, any relocation of such Equipment is subject to the terms and conditions set forth in the Software License Module of this Agreement. EQP 1.6 — SUPPLIER EQUIPMENT PROVIDED FL -University of So. Florida master Agreement (Schedule A) 17 11/26/201221 In the event Xerox provides Supplier Equipment to Customer, the following terms shall apply unless otherwise specified in an Order: a. Unless Supplier Equipment is purchased by Customer, Xerox (or the applicable third party vendor) shall at all times retain title to the Supplier Equipment. Customer hereby authorizes Xerox or its agents to file financing statements necessary to protect Xerox's rights to Supplier Equipment. Each party will promptly notify the other, in writing, of any change in ownership, and the Customer will notify Xerox if it relocates its principal place of business or changes the name of its business. The risk of loss for the Supplier Equipment shall pass to Customer upon delivery to the applicable Customer Facilities. b. Customer agrees to use the Supplier Equipment in accordance with, and to perform, all operator maintenance procedures for the Supplier Equipment described in the applicable Documentation made available or provided by Xerox. The Customer shall not (unless the Supplier Equipment is Purchased Equipment, and then only with Xerox's prior consent): sell, charge, let or part with possession of the Supplier Equipment; remove the Supplier Equipment from Customer Facilities in which it is installed; or make any changes or additions to the Supplier Equipment. C. Early Termination. Equipment is provided for a minimum order term (as specified in the applicable Order per EQP 1.1 above). If Equipment is terminated for any reason before the end of its minimum order term, the termination charges set forth in the applicable Order or Services Contract for such Equipment shall apply. EQP 1.7 — DATA SECURITY Certain models of Equipment can be configured to include a variety of data security features. There may be an additional cost associated with certain data security features. The selection, suitability and use of data security features are solely Customer's responsibility. Upon request, Xerox will provide additional information to Customer regarding the security features available for particular Equipment models. EQP 1.8 - REMOTE SERVICES FOR EQUIPMENT Certain models of Equipment are supported and serviced using Remote Data Access. Remote Data Access also enables Xerox to transmit to the Customer Maintenance Releases or Updates for software or firmware and to remotely diagnose and modify Equipment to repair or correct malfunctions. Remote Data will be transmitted to and from Customer in a secure manner specified by Xerox. Remote Data Access will not allow Xerox to read, view or download any Customer data, documents or other information residing on or passing through the Equipment, Third Party Hardware or Customer's information management systems. Customer grants the right to Xerox, without charge, to establish and maintain Remote Data Access for the purposes described above. Upon Xerox's request, Customer will provide contact information for Equipment such as name and address of Customer contact and IP and physical addresses/locations of Equipment. Customer will enable Remote Data Access via a method prescribed by Xerox and Customer will provide Xerox with reasonable assistance to allow Xerox to have Remote Data Access. Unless Xerox deems Equipment incapable of Remote Data Access, Customer will ensure that Remote Data Access is maintained at all times Maintenance Services are being performed. EQP 1.9 - REMOVAL OF HAZARDOUS WASTE Customer agrees to take responsibility for legally disposing of all hazardous wastes generated from the use of Third Party Hardware or supplies. EQUIPMENT PURCHASE MODULE EP 1 — TERMS AND CONDITIONS SPECIFIC TO EQUIPMENT PURCHASE In addition to the terms and conditions in the General (GEN) Module, the following terms and conditions apply to the acquisition of Purchased Equipment: FL -University, of So. Florida Master Agreement (Schedule A) 19 11/26/2017 nn FL -University of So. Florida Master Agreement (Schedule A) is 11/26/201?LL EP 1.1 — ORDER Orders for an outright purchase of Equipment shall include the unique Xerox -provided contract number and the number of this Agreement on all applicable ordering documents. EP 1.2 — TITLE Title to Purchased Equipment will pass to Customer upon delivery to the applicable Customer Facilities. EP 1.3 — DEFAULT If Customer defaults under a XOA for Purchased Equipment, Xerox, in addition to its other remedies (including the cessation of Maintenance Services if applicable), may require immediate payment of all amounts then due, plus all applicable Transaction Taxes and applicable interest on all amounts due from the due date until paid. EP 1.4 — MAINTENANCE SERVICES FOR PURCHASED EQUIPMENT If Customer elects to receive Maintenance Services for Purchased Equipment, Customer shall do so under a separate Order under the Agreement for such Maintenance Services. EP 1.5 — AGREEMENT PROVISION EXCLUSIONS The following Agreement provisions do not apply to Orders for an outright purchase of Equipment: GEN 1.1 c.ii — iii; GEN 1.6 b —j; GEN 1.7 b.1; GEN 1.11; EQP 1.4; EQP 1.6. MAINTENANCE SERVICES MODULE MS 1 — TERMS AND CONDITIONS SPECIFIC TO MAINTENANCE SERVICES In addition to the terms and conditions in the General (GEN) Module, and except as otherwise set forth in an Order, the following terms and conditions apply to provision of Maintenance Services. MS 1.1 — MAINTENANCE SERVICES As part of an Order for (a) stand-alone Maintenance Services related to Purchased Equipment, or (b) Maintenance Services related to Equipment to which Xerox does not hold title, or as a mandatory part of an Order for Equipment (other than Purchased Equipment) that includes Maintenance Services, Xerox or a designated service provider will provide the following Maintenance Services for Equipment. If Customer is acquiring Equipment for which Xerox does not offer Maintenance Services, such Equipment will be designated as "No Svc." This Module does not apply to maintenance of Third Party Hardware. Maintenance that Xerox provides on Third Party Hardware will be provided in accordance with the terms of the applicable Order. The provision of Maintenance Services is contingent upon Customer facilitating timely and efficient resolution of Equipment issues by: (i) utilizing Customer -implemented remedies provided by Xerox; (ii) replacing Cartridges; and (iii) providing information to and implementing recommendations provided by Xerox telephone support personnel in those instances where Xerox is not providing on-site Equipment support personnel. If an Equipment issue is not resolved after completion of (i) through (iii) above, Xerox will provide on-site support as provided in the applicable Order. MS 1.2 — REPAIRS AND PARTS Xerox will make repairs and adjustments necessary to keep the Equipment in good working order and operating in accordance with its written specifications (including such repairs or adjustments required during initial installation). Maintenance Services shall cover repairs and adjustments required as a result of normal wear and tear or defects in materials or workmanship. Parts required for repair may be new, reconditioned, reprocessed or recovered. If Xerox is providing Maintenance Services for Equipment that uses Cartridges, Customer will use only unmodified Cartridges purchased directly from Xerox or its authorized resellers. Failure to use such Cartridges will void any warranty applicable to such Equipment. Cartridges packed with Equipment or furnished by Xerox as Consumable Supplies will meet Xerox's new Cartridge performance standards and may be new, remanufactured or reprocessed and contain new and/or reprocessed FL -University of So. Florida Master Agreement (Schedule A) 20 11/26/2017 223 components. To enhance print quality, Cartridges for many models of Equipment have been designed to cease functioning at a predetermined point. MS 1.3 — HOURS AND EXCLUSIONS Unless otherwise set forth in an Order, Maintenance Services will be provided in areas accessible for repair services during Xerox's standard working hours. Maintenance Services excludes repairs due to: (a) misuse, neglect or abuse; (b) failure of the installation site or the PC or workstation used with the Equipment to comply with Xerox's published specifications; (c) use of options, accessories, or other products not serviced by Xerox; (d) non -Xerox alterations, relocation, service or supplies; and (e) failure to perform operator maintenance procedures identified in operator manuals. Customer agrees to furnish all referenced parts, tools, and supplies needed to perform those procedures that are described in the applicable manuals and instructions. MS 1.4 — INSTALLATION SITE AND METER READINGS In order to receive Maintenance Services for Equipment requiring connection to a PC or workstation, Customer must utilize a PC or workstation that either (a) has been provided by Xerox or (b) meets Xerox's published specifications. The Equipment installation site must conform to Xerox's published requirements. If applicable, unless otherwise set forth in an Order, Customer agrees to provide meter readings in the manner prescribed by Xerox. If Customer does not provide Xerox with meter readings as required, for Equipment not capable of Remote Data Access, or if Remote Data Access is interrupted, Xerox may estimate them and bill Customer accordingly. MS 1.5— REMEDY If Xerox is unable to maintain the Equipment as described above, Xerox will, as Customer's exclusive remedy for Xerox's failure to provide Maintenance Services, replace the Equipment with an identical product or, at Xerox's option, another model with comparable features and capabilities. If replacement Equipment is provided pursuant to this Section, there shall be no additional charge for its provision by Xerox during the initial term of the Order and it shall be subject to the terms and conditions of this Agreement and the applicable Order(s). Customer's use of non -Xerox approved consumables that affect the performance of the Equipment may invalidate this remedy. MS 1.6— END OF SERVICE Xerox has no obligation to maintain or replace Equipment beyond the "End of Service" for that particular model of Equipment. End of Service ("EOS") means the date announced by Xerox after which Xerox will no longer offer Maintenance Services for a particular Equipment model. An EOS Equipment List is available upon request. SOFTWARE LICENSE MODULE SW 1 — TERMS AND CONDITIONS SPECIFIC TO SOFTWARE In addition to the terms and conditions in the General (GEN) Module the following terms and conditions apply to the license and use of Software and its associated Documentation. SW 1.1— SOFTWARE LICENSE Xerox may provide Software to Customer pursuant to an Order hereunder. The following license applies to Software provided hereunder, unless such Software is accompanied by a click -wrap or shrink-wrap license agreement or otherwise provided subject to a separate license agreement. a. Xerox grants Customer a non-exclusive, non -transferable, non -assignable (by operation of law or otherwise) license to use in the U.S.: (i) Base Software only on or with the Equipment with which (or within which) it was delivered; and (ii) Application Software only on any single unit of Equipment, subject to Customer remaining current in the payment of any indicated applicable Software license fees (including any annual renewal fees). Customer has no other rights to the Software. Customer will not and will not allow its employees, agents, contractors or vendors to: (i) distribute, copy, modify, create derivatives of, decompile, or reverse engineer Software except as permitted by applicable law; (ii) activate Software delivered with or within the Equipment in an un -activated state; or, (iii) access or disclose Diagnostic Software for any purpose. Title to Software and all FL -University of So. Florida Master Agreement (Schedule A) 21 11/26/2017 224 copyrights and other intellectual property rights in Software will reside solely with Xerox and its licensors (who will be considered third party beneficiaries of this Agreement's software and limitation of liability provisions). b. The Base Software license will terminate: (i) if Customer no longer uses or possesses the Equipment with which the Base Software was provided; or (ii) upon the expiration or termination of any Order under which Customer has acquired the Equipment with which the Base Software was provided (unless Customer has exercised an option to purchase the Equipment, where available). C. Software may contain code to prevent its unlicensed use and/or transfer. If you do not permit Xerox periodic access to such Software, this code may impair the Equipment's and/or Software's functionality. d. Xerox does not warrant that the Software will be free from errors or that its operation will be uninterrupted. SW 1.2— SOFTWARE SUPPORT Software support will be provided by Xerox or a designated service provider as follows. For Base Software, Software support will be provided during the initial term of the applicable Order and any renewal period, but not longer than five (5) years after Xerox stops taking orders for the subject model of Equipment. For Application Software, Software support will be provided as long as Customer is current in the payment of all applicable software license, annual renewal and "support only" fees. Xerox will maintain a web -based or toll-free hotline during Xerox's standard working hours to report Software problems and answer Software -related questions. Xerox, either directly or with its vendors, will make reasonable efforts to: (i) assure that Software performs in material conformity with its Documentation; (ii) provide available workarounds or patches to resolve Software performance problems; and (iii) resolve coding errors for (1) the current release and (2) the previous release for a period of six (6) months after the current release is made available to Customer. Xerox will not be required to provide Software support if Customer has modified the Software. Xerox may make available new releases of the Software that are designated as "Maintenance Releases" or "Updates." Maintenance Releases or Updates are provided at no charge and must be implemented within six (6) months after being made available to Customer. Each Maintenance Release or Update shall be considered Software governed by these terms. Feature Releases will be subject to additional license fees at Xerox's then -current pricing and shall be considered Software governed by these terms and conditions (unless otherwise noted in an Order). Implementation of a Maintenance Release, Update or Feature Release may require Customer to procure, at its expense, additional hardware and/or software from Xerox or another entity. Upon installation of a Maintenance Release, Update or Feature Release, Customer will return or destroy all prior Maintenance Releases, Updates or Feature Releases. C. Xerox may annually increase Software license fees and support fees for Application Softwa re. SW 1.3— DIAGNOSTIC SOFTWARE Diagnostic Software and method of entry or access to it constitute valuable trade secrets of Xerox. Title to the Diagnostic Software shall at all times remain solely with Xerox and Xerox's licensors. Xerox does not grant Customer a license or right to use the Diagnostic Software. Customer will not use, reproduce, distribute, or disclose the Diagnostic Software for any purpose (or allow third parties to do so). Customer will allow Xerox reasonable access to the Equipment during Customer's normal business hours to remove or disable Diagnostic Software if Customer is no longer receiving Maintenance Services from Xerox. SW 1.4 — THIRD PARTY SOFTWARE Third Party Software is subject to license and support terms provided by the applicable Third Party Software vendor. 225 IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set forth below intending it to become effective on the Effective Date and thereby agreeing to its terms. ENTER NON-AFFILIATED ENTITY NAME Signature Name (please print) Title Address Date FL -University of So. Florida Master Agreement (Schedule A) 23 XEROX CORPORATION Signature Name Title Address Date 11/26/2017 226 GENERAL AMENDMENT xe pox THIS AMENDMENT Number 1 ("Amendment") amends Agreement Number Xerox MSA ITN 17 -16 -MH (the "Agreement") between the University of South Florida Board of Trustees, a Public Body Corporate ("you" or "Customer") and Xerox. DEFA Definitions- The definition for Non -Affiliated Eligible Entity(ies) shall be deleted in its and entirety and replaced with; "means an entity who is not a Customer Direct Affiliate which would include, State Agencies, County Government, Local Municipalities, Public School Districts, Community Colleges, Non -Profit Colleges and Universities, Quasi -Government Entities and to the extent provide by law, any other entity, that expends public funds for the procurement of services and supplies". GEN 1.5 Notices- "If to Xerox:" address has been changed to the following location: Xerox Corporation 8710 W. Hillsborough Avenue #332 Tampa, FL 33615 Attention: Chris McPherson Telephone: 813.636.4509 Except as specified in this Amendment, the Agreement shall remain as stated. In the event of a conflict between the terms and conditions of the Agreement and this Amendment, the Amendment will control. XEROX CORPORATION Christopher McPherson Name -.(Please Print) Signature General Manager Title 05.17.2019 Date USF Board of Trustees jmc (05-2019) University of South Florida Board of Trustees Digitally signed by Timothy C. Mays, Jr. Timoth f DN: cn=Timothy C. Mays, Jr., o=University of South Florida, —0Ht PFecvFeFlleRt Services, email=timothy45@usf.e u, C=US Date: 2019.05.17 Signature 10:02:02 -04'00' Date General Addendum Page 1 227 DocuSign Envelope ID: 47D6997B-5B27-4D9C-9B9C-96C62B94152B GENERAL AMENDMENT Xerox tj THIS AMENDMENT Number 2 ("Amendment') amends Agreement Number Xerox MSA ITN 17 -16 -MH (the "Agreement') between the University of South Florida Board of Trustees, a Public Body Corporate ("you" or "Customer") and Xerox. THIS AMENDMENT REVISES AMENDMENT NUMBER 1 SIGNED MAY 17, 2019 DEFA Definitions- The definition for Non -Affiliated Eligible Entity(ies) shall be deleted in its and entirety and replaced with; "means an entity who is not a Customer Direct Affiliate which would include, State Agencies, County Government, Local Municipalities, Public School Districts, Community Colleges, Non -Profit Colleges and Universities, Quasi -Government Entities and to the extent provide by law, any other entity, that expends public funds for the procurement of services and supplies and Not -for -Profit 501(c)(3) Organizations." GEN 1.5 Notices- "If to Xerox:" address has been changed to the following location: Xerox Corporation 12468 LaGrange Road Suite 318 Louisville, KY 40245 Attention: Lisa Perkins Telephone: (502) 410-8679 Except as specified in this Amendment, the Agreement shall remain as stated. In the event of a conflict between the terms and conditions of the Agreement and this Amendment, the Amendment will control. XEROX CORPORATION Lisa Perkins a-La6�'�se Print) �iSO, Pt, t*LA S Signature Account General Manager Title 6/29/2020 Date USF Board of Trustees jmc (06-2020) University of South Florida Board of Trustees Jeffrey Elliott N,am, �R&a Print) Signa ure Associate Director Title 6/29/2020 Date General Addendum Page 1 W Ioal INDIAN RIVER COUNTY, FLORIDA MEMORANDUM TO: Jason E. Brown; County Administrator THROUGH: Phillip J. Matson, AICP; Community Development Director THROUGH: Ryan Sweeney; Chief, Current Development FROM: Brandon C. Creagan, LEED Green Associate; Senior Planner, Current Development DATE: September 30, 2022 SUBJECT: Glendale Baptist Church, Inc.'s Request for Modified Conceptual Site Plan and Special Exception Use Approval for Glendale Baptist Church and School [SP -SE - 21 -08-19 / 2004040365-899581 (Quasi -Judicial) It is requested that the data herein presented be given formal consideration by the Board of County Commissioners at its regular meeting of October 11, 2022. DESCRIPTION & CONDITIONS Mills, Short, & Associates, on behalf of Glendale Baptist Church, Inc., is requesting modified conceptual site plan and special exception use approval to construct a combined church and school (private K-8 school with child care services) facility to be known as Glendale Baptist Church and School. The site previously received conceptual site plan, administrative permit use, and special exception use approval in 2019 for the same project, but with this request the applicant wants to modify the phasing the required off-site improvements, provide for a more streamlined construction phasing, and add child care services (daycare). The 8.78 acre project site is currently vacant and is located at the northeast corner of 27th Avenue and 0 Street (see attachment 2). The site is zoned RS - 6, Residential Single -Family (up to 6 units/acre), a zoning district which requires special exception use approval for child care services (daycare). Glendale Baptist Church, Inc. currently owns and operates a combined church and school facility located at the southeast corner of 27' Avenue and 81h Street. That site is 2.84 acres, has an approximate seating capacity of 200 seats within the church sanctuary, and an overall student enrollment of 250 students. The subject project is proposed to be constructed in 3 phases. The first phase includes a stand-alone pre-school/daycare facility with all required site improvements and parking spaces provided. The second phase includes a stand-alone elementary/middle school with all required site improvements and the remainder of the required parking spaces being provided. The third phase includes the 400 -seat church sanctuary, and additional church classroom (non -school) space. At full build -out, the conceptual site plan proposes a total of 16,271 square feet (SF) of church space with a maximum of 400 seats within the church sanctuary and 43,860 SF of school space with a maximum student enrollment of 400 students. 229 C:\Granicus\Legistar5\L5\Temp\5cd27ac8-6bb7-4849-8dff-d20aa90b7966.docx With regard to the project's required offsite improvements, the applicant is proposing to phase these improvements instead of constructing them all up front (with Phase 1). As proposed, the required 271 Avenue off-site roadway improvements and the 27th Avenue driveway connection will be constructed with Phase 1. The required 4th Street off-site roadway improvements and the 4th Street driveway connection will be constructed with Phase 2. There are no additional off-site improvements required or proposed for Phase 3. Besides the request to phase the required off-site improvements, there are no significant changes to the overall project layout or the proposed building design. In this case, the applicant has applied for a modification to an existing conceptual site plan in order to obtain a special zoning use approval for the daycare (special exception use) as it was not a part of the project during the original approval process. As stated above, the applicant wishes to phase the required off-site improvements and this requires a re -approval of the conceptual site plan as there are changes to what was originally approved by the Board of County Commissioners (BCC). A conceptual site plan provides general development plan information including overall intensity, but does not include all the details of a "final" site plan design or authorize any construction. If the special exception use approval is granted, then the applicant will submit a separate and complete final site plan application. That final site plan application would proceed through the normal site plan review and approval process, including another review by the Planning and Zoning Commission (PZC) if the overall net new impervious area exceeds 150,000 SF (or could be approved at the staff level if the net new impervious area is below 150,000 SF). The PZC now needs to consider the modified conceptual site plan and special exception use request for the proposed child care, conduct a public hearing, and make a recommendation to the BCC to approve, approve with conditions, or deny the request for special exception use. Pursuant to Section 971.05 of the County LDRs, the PZC is to consider the appropriateness of the requested use for the subject site and compatibility of the use with the surrounding area. The PZC may recommend reasonable conditions and safeguards necessary to mitigate impacts and to ensure compatibility of the use with the surrounding area. Planning and Zoning Commission (PZC) Action: At its meeting of August 25, 2022, the PZC voted 7-0 to recommend that the BCC grant modified conceptual site plan and special exception use approval for the Glendale Baptist Church and School (see attachment 1). ANALYSIS 1. Size of Site: 8.78 acres 2. Zoning Classification: RS -6, Residential Single -Family (up to 6 units/acre) 3. Land Use Designation: L-2, Low -Density Residential -2 (up to 6 units/acre) 4. Building Area: 60,131 square feet (total at build -out) 5. Impervious Area: 166,928 square feet or 3.83 acres (total at build -out) 6. Open Space: Required: 40% Proposed: 56.21% 230 C:\Granicus\Legistar5\LS\Temp\5cd27ae8-6bb7-4849-8dff-d20aa90b7966.doex 2 Note: An unlighted multi-purpose playfield is included in the project's open space calculation (see attachment 4). 7. Off -Street Parking: Required: 134 Proposed: 145 Note: The church activities and school activities will peak and occupy the site at different times during the day/week. The church use (based on a weekend peak) requires 134 spaces while the school use (weekday peak) requires only 77 parking spaces. Consistent with County policy and practice for church/school facilities, the required parking figure is based on the higher of the two uses at full build -out, which is the church use in this case. The required parking for Phase 1 will be based on the stand-alone school use (lower parking rate), and then the remaining parking will be "phased -in" based on the full 400 -seat church sanctuary (higher parking rate) which exceeds the parking requirements for the school use at full build -out. 8. Phasing: The project is proposed to be constructed in three phases, as follows: Phase School Building Area Church Building Area Parking Spaces 1 14,532 SF N/A 38 2 43,860 SF N/A 145 3 0 16,271 SF 0 Total Build -out 43,860 SF 16,271 SF 145 Note: Most of the site improvements, including all of the stormwater management facilities, will be constructed in Phase 1. The 27th Avenue driveway connection will be constructed in Phase 1 and the 0' Street driveway connection will be constructed in Phase 2. Phase 3 includes the construction of the church, sanctuary (400 seats), and the associated classrooms for the church. There will be no additional expansion of the pre-school, elementary, or middle school buildings in Phase 3. Additionally, all parking requirements for the entire site will be met in Phase 2 of the project, therefore, no additional parking is required for Phase 3. 9. Utilities: The project will be served by public water and sewer service provided by County Utility Services. The County Department of Utility Services and the Department of Health have approved these project utility provisions. 10. Access and Traffic Circulation: Access to the project site will be provided via a full - movement driveway connection to 27th Avenue and a full -movement driveway connection to 4th Street (see attachment 4). Both driveway connections will be served by left and right turn lanes to be constructed by the project developer during the construction of Phase 1 and Phase 2, respectively (see attachment 5). The traffic circulation plan (at full build -out) includes a two-way loop road/drive aisle that loops around the entire building/facility, parking areas along 27th Avenue and 4th Street, and a one-way, dual lane drop-off area that provides adequate queuing for student drop-off and pick-up. The vehicle queuing areas and the two-way loop road/drive aisle will be constructed with Phase 1 and Phase 2, respectively (see attachment 5). The proposed driveway connections and traffic circulation plan have been reviewed and approved by Traffic Engineering and Fire Prevention. Additionally, Traffic Engineering reviewed and approved the traffic impact study (TIS) submitted by the applicant. Based on the approved TIS, left and right turn lanes are required at both driveway connections, and the conceptual site plan shows the required left and right turn lanes to be constructed with Phase 1 and Phase 2, respectively. No other off-site traffic improvements are required or prod. C:\Granicus\Legistar5\L5\Temp\5cd27ae8-6bb7-4849-8dff-d20aa90b7966.docx 3 11. Stormwater Management: The project's conceptual stormwater management design proposes a master stormwater system with two separate stormwater management areas located along the project site's 4th Street frontage, and an interconnected system of stormwater pipes and drainage structures that will direct the project's stormwater runoff into the master system (see attachment 4). In addition to providing for stormwater runoff generated by the project, the project's stormwater management system is also required to accommodate runoff generated by the required left and right turn lanes to be constructed on 27th Avenue and 4th Street. All of the project's master stormwater system is proposed to be constructed with Phase 1 (see attachment 5). Public Works has reviewed and approved the project's conceptual stormwater management design. The final stormwater management design will be reviewed and approved by the Public Works Department via the County stormwater permitting process. 12. Environmental and Archeological Issues: a. Wetlands: County Environmental Planning staff has determined that no jurisdictional wetlands exist on the subject site. Therefore, no wetlands criteria apply to the proposed development. b. Uplands: Since the project site exceeds 5 acres, the County's native upland set-aside criteria apply. Approximately 4.78 acres of intact native upland plant community exists on the project site, and the project's minimum set-aside requirement is .72 acres (15% of the 4.78 acres). The applicant is proposing to preserve .72 acres of uplands on-site in order to satisfy the upland set-aside requirement. That upland set-aside area will be located near the northeast corner of the project site, and will provide additional perimeter buffering between the site and adjacent single-family homes to the north and east of the set-aside area (see attachment 6). c. Tree Preservation: Presently, the project site is partially wooded with a mixture of hardwood tree species (e.g. live oak), non -hardwood tree species (e.g. pine trees), cabbage palms, and nuisance exotics (e.g. Brazilian pepper). Hardwood trees and cabbage palm trees (greater than 10' of clear trunk) proposed to be removed must be mitigated per the County's tree mitigation requirements which allow re -planting and/or payment into the County's tree mitigation fund. A detailed final tree survey will be required with the project's final site plan application. If any specimen hardwood trees or cabbage palms are located during the final tree survey, and those trees are proposed to be removed, then those trees must be mitigated per the County's tree mitigation requirements. All nuisance exotic trees will be removed during development. County Environmental Planning staff has reviewed and approved the project's conceptual tree protection and tree mitigation plan. The final tree protection and tree mitigation plan will be reviewed by County Environmental Planning staff during review of the final site plan. 13. Required Dedications and Improvements: a. Turn Lane Improvements for 27`h Avenue and 4 1 Street: As indicated in above -referenced item 10, left and right turn lanes are required at the project's driveway connections to 27th Avenue and 4' Street, and shall be constructed with the Phase 1 (27th Avenue) and Phase 2 (4th Street) site improvements. The final design of the offsite turn lanes will be reviewed and approved by the Public Works Department via the County right-of-way (ROW) permitting process. Also, the project's stormwater management system will be required to accommodate runoff generated by the offsite left and right turn lanes. 232 C:\Granicus\Legistar5\L5\Temp\5cd27ae8-6bb7-4849-8dff-d20aa90b7966.docx 4 b. 27`h Avenue Sidewalk: A 5 foot wide sidewalk is required and proposed along the project's 27th Avenue frontage, and shall be constructed with the Phase 1 site improvements. The final design of the 27th Avenue sidewalk will be reviewed via the final site plan review process for the overall project. c. Internal Sidewalk/Pedestrian System: An internal sidewalk/pedestrian system is required throughout the project site, and sidewalk connections are required between the internal sidewalk/pedestrian system and the external sidewalks. The internal sidewalk/pedestrian system shall be shall be constructed with the Phase 1 and Phase 2 site improvements (see attachment 5). The final design of the internal sidewalk/pedestrian system will be reviewed via the final site plan review process for each respective project phase. d. Streetlighting and Outdoor Lighting: Streetlights are required for the project's parking areas and loop road system, and shall be constructed with the Phase 1 and Phase 2 site improvements (see attachment 5). The proposed streetlight locations and details will be reviewed via the final site plan review process for the overall project. It should be noted that outdoor lighting is not required or proposed for the school's multi-purpose playfield and an approval condition of no outdoor lighting of the field is recommended by staff. With the recommended condition in place, if the applicant desires adding outdoor lighting to the playfield area in the future, then a separate approval for lighting would be required. Such request would require PZC review and BCC approval through the special exception process. 14. Landscape Plan: A conceptual landscape and buffer plan has been reviewed and approved for the subject site. With respect to buffering, the plan depicts buffer types, locations, and the physical width and components of the buffers/landscape strips on all of the project's perimeters which includes Thoroughfare Plan road buffers along the site's 27th Avenue (south) and 4th Street (west) frontages, and a 25' wide Type `B" buffer with a 6 foot opaque feature along the site's north and east perimeters. A final landscape plan will be required with the final site plan for each respective project phase. 15. Other Corridors Special Development Regulations: The site is subject to the Other Corridors special development regulations. These regulations have special standards for building design, colors, materials, landscape, site lighting, and signage. The conceptual plan is consistent with the Other Corridors regulations. Additional details will be provided with the final site plan for each respective project phase. 16. Concurrency: As required under the County's concurrency regulations, the applicant has applied for and obtained a conditional concurrency certificate for the project, which is sufficient for conceptual site plan approval. The concurrency certificate was issued based upon a concurrency analysis and a determination that adequate capacity was available to serve the subject project at the time of the determination. In accordance with County concurrency regulations, the applicant will be required to obtain a final concurrency certificate prior to issuance of a building permit for each respective project phase. 17. Surrounding Land Use and Zoning: North: Single-family homes/ RS -6 East: Single-family homes / RS -6 South: 0' Street, Single-family homes / RS -6 West: 27th Avenue, Single-family homes / RS -6 233 C:\Granicus\L.egistar5\L5\Temp\5cd27ac8-6bb7-4849-8dff-d20aa90b7966.doex 5 18. Specific Land Use Criteria (Special Exception Use): Pursuant to LDR section 971.28(1), the specific criteria for the proposed daycare are addressed as follows: 1. The site shall be located on a paved road with sufficient width to accommodate pedestrian and vehicular traffic generated by the use. The facility shall be located near thoroughfares, as designated in the county's major thoroughfare plan, so as to discourage traffic along residential streets in the immediate area; NOTE: The project site has frontage on 271 Avenue, which is classified as a minor arterial road, and 41b Street, which is classified as an urban collector road. Both roads are thoroughfares. Therefore, the project site is appropriate for a child care facility. 2. Special passenger loading and unloading facilities shall be provided on the same site for vehicles to pick up or deliver clientele. Such facilities shall include driveways that do not require any back-up movements by vehicles to enter or exit the premises; NOTE: The project provides a two-way loop road/drive aisle that loops around the entire building/facility, parking areas along 27th Avenue and 4th Street, and a one-way, dual lane drop-off area that provides adequate queuing for student drop-off and pick- up. 3. All regulations of the State of Florida that pertain to the use as presently exists or may hereafter be amended shall be satisfied,• NOTE: All State of Florida regulations pertaining to this use shall be satisfied and reviewed, monitored, and approved by the appropriate State departments or agencies. 4. Child care facilities shall provide recreation area(s) and facilities that meet or exceed applicable state standards. The applicant shall supply to the planning division, prior to site plan approval, written acknowledgement from the state that the proposed recreation area(s) and facilities meet or exceed applicable state standards. The applicant shall provide either a six-foot opaque buffer or one hundred fifty foot setback between all outdoor recreation areas and adjacent residentially designated properties. NOTE: The project provides for a playground area around the pre-school building located in Phase 1 of the project. The playground area will meet the 150' setback requirement and there is a six (6) foot opaque buffer along the eastern property boundary that buffers the residentially zoned property. The final design of the playground area will be approved during the final site plan review stage. 5. A Type "C" buffer will be required, acceptable to the planning department.; NOTE: A Type "B" buffer with a 6 -foot opaque feature is provided for the facility which exceeds the Type "C" buffer requirement outlined in this subsection. ✓�_j C:\Granicus\Legistar5\L5\Temp\5cd27ae8-6bb7-4849-8dff-d20aa90b7966.doex All conditions recommended by staff have been accepted by the applicant. RECOMMENDATION Based on the analysis above, staff recommends that the BCC grant the modified conceptual site plan and special exception use approval for child care services to be added as a use on the site, with the following conditions: 1. The final site plan (for each respective project phase) and associated County permits shall include the final design of the following: a. Tree protection and tree mitigation plan; b. Landscape plan; c. Left and right turn lanes at both project driveway connections (27a' Avenue and 4t' Street); d. Stormwater management system that will accommodate runoff generated by the offsite left and right turn lanes; e. 27h Avenue sidewalk; f. Internal sidewalk/pedestrian system; g. Street lighting plan; and h. Playground area 2. The maximum student enrollment shall not exceed 400 students. 3_ The multi-purpose playfield shall not include outdoor lighting. Any future request to add outdoor lighting to the playfield area will require special exception approval (PZC review and BCC approval). 4. Prior to issuance of a Certificate of Occupancy (C.O.) for Phase 1, the required left and right turn lanes at the driveway connection to 27h Avenue shall be completed. 5. Prior to issuance of a Certificate of Occupancy (C.O.) for Phase 2, the required left and right turn lanes at the driveway connection to 4th Street shall be completed. ATTACHMENTS 1. Excerpt from August 25, 2022 PZC Minutes 2. Location Map 3. Aerial 4. Conceptual Site Plan 5. Phasing Plan 6. Landscape Plan 235 C:\Granicus\Legistar5\L5\Temp\5cd27ae8-6bb7-4849-8dff-d20aa90b7966.docx 7 Public Hearing Chairman Day read the following into record: A. Glendale Baptist Church & School: Request for modified conceptual site plan and special exception use approval to construct a combined church and school (private K-8 school with child care services) facility. Glendale Baptist Church, Inc., Owner. Mills, Short & Associates, LLC, Agent. Located at the northeast corner of 27th Avenue and 4th Street. Zoning: RS -6, Residential Single -Family (up to 6 units/acre). Land Use Designation: L-2, Low Density Residential -2 (up to 6 units/acre). [SP -SE -21-08-19 / 2004040365-89958] (Quasi -Judicial) Chairman Day asked if any members had any ex -parte communication or conflict that would not allow them to make an unbiased decision. There were none. The secretary administered the testimonial oath to those present who wished to speak. IRC Senior Planner Brandon Creagan reviewed information about the request for modified conceptual site plan and special exception use approval to construct a combined church and school facility and gave a PowerPoint presentation, copies of which are on file in the Board of County Commissioners (BCC) Office. Mr. Creagan gave some history of approvals for the Glendale Baptist Church and School and explained that today's request is for approval to amend the conceptual site plan to change the phasing and to grant special exception approval to add a daycare facility as a permitted use. Mr. Creagan gave a brief overview of the special exception process and noted this is the first of two scheduled public hearings. Mr. Creagan showed a location and aerial map with the conceptual site plan overlaid for reference. Mr. Creagan described how the project will be completed in three phases and gave a breakdown of the work to be completed in each phase. Mr. Creagan showed the traffic circulation plan and explained today's request ties the completion of required offsite improvements to each phase. Mr. Creagan also showed a map of the conceptual landscape plan and noted the applicant is providing more than what is required. Mr. Creagan outlined the required dedications, improvements and other conditions and briefly explained how they correspond with each phase of completion. Mr. Creagan noted there will be no outdoor lighting for the multi-purpose playfield and reminded the Commissioners this was previously a condition of approval. Mr. Creagan also noted the maximum student enrollment is 400 students. Mr. Creagan ended his presentation by recommending approval with the required improvements and associated conditions as listed in the staff report. Mr. Brognano asked if there has been any community response to the project. Mr. Sweeney responded there was very little, noting someone had called and inquired about operating hours of the daycare facility. Mr. Sweeney reviewed the special exception process and explained that the community receives notice of the public hearings by mail. When asked about a timeline for the project, Mr. Sweeney responded he was unsure and PZC Meeting Minutes 3 August 25, 2022 236 Attachment 1 indicated the applicant still needed final site plan approval. In response to a commissioner question, Mr. Sweeney explained that a driveway connection to 27th Avenue including right and left turn lanes is included in Phase 1 of the project. Chairman Day opened the floor for public comment. Mr. Wesley Mills with Mills, Short, and Associates, LLC was present and said he was available to answer any questions. When asked about a start date, Mr. Mills said the intent is to move forward as soon as the process allows. There was discussion about sidewalk improvements. There was also some discussion about traffic circulation and volume and Mr. Mills explained he feels that traffic from Phase 1 will be minimal. There being no further comments Chairman Day closed the floor for public comment. Chairman Day called for a Motion. ON MOTION BY Todd Brognano, SECONDED BY Curtis Carpenter, the members voted unanimously (7-0) to approve staff's recommendations with its associated conditions on this Quasi -Judicial matter. Commissioners Matters There were none. Planning Matters Mr. Sweeney said there will probably not be a meeting September 8th but that the September 22nd meeting will most likely take place as scheduled. Mr. Sweeney mentioned the prospect of moving the meeting time to an earlier time and it was determined this will be further discussed at a later date. Community Development Director Phil Matson was present and extended an invitation to the Planning Officials Training Workshop being held in Fellsmere on September 21St 8:00am-4:30pm in affiliation with our local chapter of the American Planning Association. There is a $20.00 per person admittance fee which includes breakfast and lunch. Attorney's Matters There were none. Adiournment There being no further business, the meeting was adjourned at 7:30pm. PZC Meeting Minutes 4 August 25, 2022 237 Attachment 1 CL ca O m u O J MD a a, E a aaa••wiwre..� o.-.� wMr wnr aem � mrJc•••s vwe.wbao� � a •�.•.o..r�aan...�. soot-.ro WId3Ls r �nucax auvaru:s+owa yw••° 1 sajelDOSSV a ;Joys 'sip W 4 U L96S li'.LLNfIO�tl311M n1•naHl'�gv380tl3A'3Ar w�LL OLS i � w 3.•a 3.ea� IOOHJS ONV H7Nf1H7 1SIDIVA a�Hnm:1-1.7 e a J rC\ 777-77 J J — 3nN3AV H1LZ — z s ft.e Q :3V1u zmaeve :3Lva ,-, --- ,a-.� nna• wnv aax 4 .a.w.a_. aax na _ne waam� _ NVld3LIS y _ ^ 5 vwaa.erv... avac . r� � saielDOSSV 3 IIOHS `spial »�a ; U ceszc li'uNno�a3nla NraNl•N71.3e oa3n'3nY rvua oar 9 . 1 ��lks--- — 3nN3AV H1LZ-� ,, -Sl— ?1111 Mml. 31Y0 Exp �¢d%ISary4x��Zd11u�\W+n4�WVda9%apv%�OL99nd Pl�lsluauvsood-uouaLo�\a�leixsvy 91n4S's lwtsiAadaP,Nsias�\.� .3111 mCE ooem•nw m..e d.n q �— sa1e1Doss JJOH `IS' ��•W j -- _ zsszcu'ur+rooaaniaa.+aw•Novaeoaan'anvHuzozr ti . s 3nN3AV H1LZ — -- ----- �--- --- — �. we srco:s :all M&M :31va e.o •.a •ns+qua.,��zanna�wsw�snaeaws�ozeozwava•wswnaoa-�wWoa«wFb..vvwrs'm�w,n,wawn.+wnc� :aim U Q w,w wnv aeM gg � Wld 3"OSGW w. �1 ZB6ZZ ld'ALwf10�tl311tl NtlI0Nl'H�Y370L3A'3AV N11ZOA 4 K J � C I � i i L I U I Q v� i z t e 1 S t 3nN3AV H1LZ MZPW:M 3& ZZ&A :3LY4 B✓.p wyadeaapueTsai4de�9 �Zd�N�+�IW�^V��sYdeg clePuelcJ 0299Z��QV�\eluawnao0-uowwo�\sele!mossy➢IUVS'�II�YAsidaCW�+{eias�\� 3llj w• j x 11,04 1 v� i z t e 1 S t 3nN3AV H1LZ MZPW:M 3& ZZ&A :3LY4 B✓.p wyadeaapueTsai4de�9 �Zd�N�+�IW�^V��sYdeg clePuelcJ 0299Z��QV�\eluawnao0-uowwo�\sele!mossy➢IUVS'�II�YAsidaCW�+{eias�\� 3llj easure Coast NemspVers PART OF THE USA TODAY NETWORK Indian River Press Journal 1801 U.S. 1, Vero Beach, FL 32960 AFFIDAVIT OF PUBLICATION Attn: Kathy Charest OCT O3 2022 INDIAN RIVER COUNTY PLANNING 180127 TH STREET NOTICE OF PUBLIC HEARING- INDIAN RIVER COUNTY VERO BEACH, FL 32960 SPECIAL EXCEPTION USE c;OMMUNTTY DEVELOPMENT STATE OF WISCONSIN This is notice of a public hear- ing of the Indian River County COUNTY OF BROWN Board of County Commission- ers to consider granting modi- fied special exception use and Before the undersigned authority personally appeared, said legal conceptuat site plan approval clerk, who on oath says that he/she is a legal clerk of the Indian for t(3) phe construction of a three ase, 60,131 square foot River Press Journal, a daily newspaper published at Vero Beach educational center (private K- in Indian River County, Florida: that the attached copy of 8 school with child care - ices) and church, and amendserv- advertisement was published in the Indian River Press Journal in ing the schedule of off-site the following issues below. Affiart further says that the said Indian into phases. The Thee pprroject site is located at River Press Journal is a newspaper published in Vero Beach in the northeast corner of 27th said Indian River County, Florida, and that said newspaper has 27vth Aven e). 4th Street (420 heretofore been continuously published in said Indian River County, Florida, daily and distributed in Indian River County, A Public hearing, which parties in interest and citizens Florida, for a period of one year next preceding the first publication shall have an opportunity to of the attached co of advertisement,, and affiant further says that PY Y In heard, will u held by the Indian River County Board of she has neither paid or promised any person, firm or corporation County Commissioners, in the any discount, rebate, commission or refund for the purpose of County Commission Chambers of the County Administration securing this advertisement for publication in the said newspaper. Building, located at 1801 27th The Indian River Press Journal has been entered as Periodical TuesdStreet, Vero Beach, Florida on ay, October 11, 2022 at Matter at the Post Offices in Vero Beach, Indian River County, 9.00 AM - Florida and has been for a period of one year next preceding the Please direct planning -related first publication of the attached copy of advertisement, questions to the Current De - Issue s dated before where the dates are noted or b () y publication vat 77 -22pment Planning Section at 772-226-7003. All docu- on the newspaper's website, if authorized, on meats pertaining to this re - 09/25/2022 quest are on file in the Indian River County Planning Divi- sion, located at 1801 27th Street within building "A" of the County Administration Complex.. Documents may be reviewed members the in public during normal- business ness hours. All members of the public are invited to attend and participate in the public Subscribed and sworn to before on September 27, 2022 hearing. Anyone who may wish to ap- peal any decision, whichmay be made at this meeting, will - need to ensure that a verba - Notary, State of WI, C runty of Brown tim record of the proceedings l is made, which includes testi- ! mony and evidence upon which the appeal is based. My commission expires ANYONE WHO NEEDS A SPE- CIAL ACCOMMODATION FOR KATHLEEN ALLEN THIS MEETING MUST CON- �iC Notary PUb� TACT THE COUNTY'S ACT CANS WITH DISABILITIES ES ACT State of Wisconsin " (ADA) COORDINATOR AT 226- 1223 AT LEAST 48 HOURS IN _, p�„r��„�>s= r--•• _ "� ”' ADVANCE OF THE MEETING. Publication Cost: $133.38 INDIAN RIVER COUNTY BOARD OF COUNTY COMMIS - Ad No 0005419795 SIONERS Customer No: 1310785 BY -s- Peter D. O'Bryan, Chair - man PO #: Pub: Set 25, 2022 243 TCN5419795 # of Affidavits: 1 Glendale Baptist Church & School Special Exception Use (Daycare) Board of County Commissioners October 11, 2022 Special Exception Process ➢ Special Exception Use — Appropriateness and compatibility of the requested use — General criteria for special exception uses — Specific land use criteria [971.28(1)] — Two public hearings (1 PZC & 1 BCC) ➢ BCC is to: — Approve request — Approve request with conditions — Deny request 10/11/2022 Item 10.A.1 2 243 -1 10/11/2022 Item 10.A.1 Location Map Aerial zq3 - 2 10/ 11/2022 Item l O.A.1 2 -Ji - 3 Conceptual Site Plan -;---i — ! { I F (D ! l.. — — I T !i i �• Phase 1 = Preschool/Daycare Phase 2 = Elementary/Middle School it Phase 3 = Church sanctuary and Church classrooms �F 2 -Ji - 3 Conceptual Phasing Plan i �• Phase 1 = Preschool/Daycare Phase 2 = Elementary/Middle School it Phase 3 = Church sanctuary and Church classrooms m. sir 6 2 -Ji - 3 10/11/2022 Item 10.A.1 Conceptual Landscape Plan Traffic Circulation Plan IM 25' Type "B" buffer L w/ 6' opaque feature -1 L Primary loop road 7 Required left and right turn lanes at 0 Uplands set-aside area project entrance constructed during 20' Thoroughfare Phase I Dual lane drop-off and pick-up area 8 Required left and right turn lanes at project entrance I — — — — — — — I constructed during Phase 2 - - - - -_-_--------- --- M-T Conceptual Landscape Plan IM 25' Type "B" buffer L w/ 6' opaque feature 0 Uplands set-aside area 20' Thoroughfare Plan Road buffer 8 M3, 4 10/11/2022 Item 10.A.1 Dedications, Improvements, and Other Conditions • Turn lane improvements for 27th Avenue (Phase 1) and 4th Street (Phase 2) • Stormwater treatment for offsite turn lanes • 27th Avenue sidewalk (Phase 1) • Internal sidewalk/pedestrian system • Streetlighting • No outdoor lighting for the multi-purpose playfield • Maximum student enrollment of 400 students 9 PZC Action • At its meeting of August 25, 2022, the PZC voted 7-0 to recommend that the BCC grant modified conceptual site plan and special exception use approval for the Glendale Baptist Church and School with the conditions recommended by staff. 10 243, 5 10/ 11/2022 Item 1 O.A.1 Staff Recommendation That the BCC grants special exception approval for the daycare facility and the amended conceptual site plan, with conditions stated in the staff report, related to: • Final design of required plans/improvements via final site plan • Maximum student enrollment of 400 students • No outdoor lighting for multi-purpose playfield • Turn lane improvements for 27th Avenue (Phase 1) and 41h Street (Phase 2) HE 243 6 /081 INDIAN RIVER COUNTY BOARD OF COUNTY COMMISSION REQUEST TO BE SCHEDULED FOR PUBLIC DISCUSSION Any organization or individual wishing to address the Board of County Commission shall complete this form and submit it to the Indian River County Administrator's Office. PUBLIC DISCUSSION INFORMATION Indian River County Code Section 102.04(10)(b): as a general rule, public discussion items should be limited to matters on which the commission may take action Indian River County Code Section 102.11(3): limit remarks to three minutes unless additional time is granted by the commission NAME OF INDIVIDUAL OR ORGANIZATION: Regina Hawkins 8725 64th Ave. Vero Beach ADDRESS: SUBJECT MATTER FOR DISCUSSION: PHONE: 561-584-0114 No prior seizure notification of 8725 64th Ave IS A DIGITAL/ELECTRONIC PRESENTATION PLANNED? D YES [J�] NO WHAT RESOLUTION ARE YOU REQUESTING OF THE COMMISSION? More time to pay & waiver of fees ARE PUBLIC FUNDS OR ACTIVITIES REQUIRED? F-1 YES F NO WHAT FUNDS OR ACTIVITIES ARE REQUIRED TO MEET THIS REQUEST? For IRC Staff only: Transmitted to Administrator Via: ❑ Interactive Web Form ✓ E -Mail Hand Delivered El Phone COUNTY ADMINISTRATOR: MEETING DATE: Jason E. Brown 1011/22 INDIAN RIVER COUNTY BOARD OF COUNTY COMMISSION REQUEST TO BE SCHEDULED FOR PUBLIC DISCUSSION Any organization or individual wishing to address the Board of County Commission shall complete this form and submit it to the Indian River County Administrator's Office. PUBLIC DISCUSSION INFORMATION Indian River County Code Section 102.04(10)(b): as a general rule, public discussion items should be limited to matters on which the commission may take action Indian River County Code Section 102.11(3): limit remarks to three minutes unless additional time is granted by the commission NAME OF INDIVIDUAL OR ORGANIZATION: Qwnesha Hawkins (Nikki) 8725 64th Ave. Vero Bch ADDRESS: SUBJECT MATTER FOR DISCUSSION: PHONE: 561-494-5026 Redevelopment of 8725 64th Ave. For Affordable Housing. IS A DIGITAL/ELECTRONIC PRESENTATION PLANNED? YES F;�_] NO WHAT RESOLUTION ARE YOU REQUESTING OF THE COMMISSION? Waiver of Fees ARE PUBLIC FUNDS OR ACTIVITIES REQUIRED? F-1 YES F-1 NO WHAT FUNDS OR ACTIVITIES ARE REQUIRED TO MEET THIS REQUEST? For IRC Staff only: ransmitted to Administrator Via: ❑ Interactive Web Form ✓ E -Mail Hand Delivered Phone COUNTY ADMINISTRATOR: MEETING DATE: Jason E. Brown 245 Dylan Reingold, County Attorney William K DeBraal, Deputy County Attorney Susan J. Prado, Assistant County Attorney Office of INDIAN MEMORANDUM TO: Board of County Commissioners FROM: Dylan Reingold, County Attorney DATE: September 22, 2022 /4 Public Notice Item - B.C.C. 10. 11.22 RIVER COUNTY ATTORNEY SUBJECT: Public Notice of Continued Public Hearing for October 18, 2022, to Consider an Ordinance Establishing the LP Community Development District The Board of County Commissioners will hold the continued Public Hearing on Tuesday, October 18, 2022, at 9:05 a.m. or as soon thereafter as the matter may be heard, to consider adoption of the following: AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA, ESTABLISHING THE LP COMMUNITY DEVELOPMENT DISTRICT PURSUANT TO CHAPTER 190, FLORIDA STATUTES; PROVIDING A TITLE; PROVIDING FINDINGS; CREATING AND NAMING THE DISTRICT; DESCRIBING THE EXTERNAL BOUNDARIES OF THE DISTRICT; DESCRIBING THE FUNCTIONS AND POWERS OF THE DISTRICT; DESIGNATING FIVE PERSONS TO SERVE AS THE INITIAL MEMBERS OF THE DISTRICT'S BOARD OF SUPERVISORS; PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING AN EFFECTIVE DATE. The public hearing will be held in the County Commission Chambers located on the first floor of Building A of the County Administrative Complex, 1801 27th Street, Vero Beach, Florida 32960. C:IGYanwmiLeVgn JILSITemple11dl91b-6aOd-48JJ-909d)bc49ne47eel.doc 246 <« October 11, 2022 E;k c Office of the INDIAN RIVER COUNTY * ADMINISTRATOR ORtp� Jason E. Brown, County Administrator Michael C. Zito, Assistant County Administrator MEMORANDUM TO: Members of the Board of County Commissioners FROM: Jason E. Brown County Administrator DATE: October 4, 2022 SUBJECT: Meetings of the Indian River County Board of County Commissioners – Proposed 2023 Meeting Dates Each year at this time a new schedule of dates is proposed to the Board, to date consisting of most Tuesdays of each month excluding the last Tuesday and some other exceptions. This current meeting pattern presents challenges to focus on each meeting as well as implementation of policies set by the board as the focus remains on preparing the next agenda for three and sometimes four weeks in a row. A survey of surrounding counties of similar size (and some much larger) revealed that most schedule only 2 commission meetings per month. Attached are two proposals for 2023 meeting schedules—the first (atch A), using our current schedule with generally three weekly meetings per month. This would result in 31 scheduled meetings for the year. The second (atch B) is generally an every -other week pattern, normally first and third Tuesdays. This would result in 23 scheduled meetings throughout next year. Both have exceptions for holidays, summer schedule, etc. It should be noted that County Code, Section 102.01 states, "Time. The county commission shall generally hold regular meetings on Tuesday beginning at 9:00 a.m. There shall be no commission meeting the last Tuesday of the month." If the Board does choose to change from the calendar setup used for the last several years, Staff would recommend a minor modification to the Code to reflect the new calendar. Staff recommends the every -other week pattern for more effective workflow for the meetings and implementation of Board policy as determined at each meeting. Staff further recommends that the Board approve Attachment B for the 2023 Commission Meeting Calendar. 247 INDIAN RIVER COUNTY BOARD OF COUNTY COMMISSION 2023 MEETING DATES 31 weekly meetings, excluding all last Tuesdays and some other exceptions 9:00 A.M. January 10, 2023 January 17, 2023 January 24, 2023 February 7, 2023 February 14, 2023 February 21, 2023 March 7, 2023 March 14, 2023 April 4, 2023 April 11, 2023 April 18, 2023 May 2, 2023 May 9, 2023 May 16, 2023 June 6, 2023 June 13, 2023 Proposed 2023 BCC Meeting Dates June 20, 2023 July 11, 2023 July 18, 2023 August 15, 2023 September 12, 2023 September 19, 2023 October 3, 2023 October 10, 2023 October 17, 2023 November 7, 2023 November 14, 2023 November 21, 2023 December 5, 2023 December 12, 2023 December 19, 2023 248 INDIAN RIVER COUNTY BOARD OF COUNTY COMMISSION 2023 MEETING DATES 9:00 A.M. January 17, 2023 January 31, 2023 February 7, 2023 February 21, 2023 March 7, 2023 April 4, 2023 April 18, 2023 May 2, 2023 May 16, 2023 June 6, 2023 June 20, 2023 July 11, 2023 Proposed 2023 BCC Meeting Dates August 15, 2023 August 29, 2023 September 12, 2023 September 26, 2023 October 3, 2023 October 17, 2023 October 31, 2023 November 7, 2023 November 21, 2023 December 5, 2023 December 19, 2023 249 116 County Administrator's Matters October 11, 2022 Office of the INDIAN RIVER COUNTY ADMINISTRATOR OR11�:" Jason E. Brown, County Administrator Michael C. Zito, Assistant County Administrator MEMORANDUM TO: Members of the Board of County Commissioners FROM: Jason E. Brown County Administrator DATE: October 5, 2022 SUBJECT: Debris Collection Post -Hurricane Ian Background & Discussion Staff requests discussion regarding debris collection post -Hurricane Ian. Currently, staff estimates a total of approximately 30,000 cubic yards of vegetative debris following this event. This is a substantially lower amount of debris than we have experienced with recent event such as Hurricane Matthew (87,505 cubic yards) and Hurricane Irma (187,804 cubic yards). This amount of debris is still presenting a challenge for the current methods of collection being utilized. We have been directing residents of the unincorporated areas to either take their vegetative debris to one of our five (5) customer convenience centers or the landfill. Also, residents who subscribe to Waste Management collection have been advised that they can place their yard debris for collection per the terms of the franchise agreement (up to 4 cubic yards, less than 3' diameter debris). It should be noted that the volumes experienced are significantly more that what they pick up in a normal week. Public Works is working to clear the larger debris that is along our main roadways with our two (2) claw trucks as well. We also authorized an emergency purchase order for two (2) claw trucks to supplement our own forces for this week, but this vendor will not be available going forward. Unfortunately, this will take some time to clear with our current resources. Staff is presenting the option to utilize our emergency debris clearing contractor if we want to supplement the current resources available. Based upon this amount of yard waste, the estimated cost to utilize our debris contractor and debris monitor to clear this debris would be approximately $750,000. On October 6° 2022, staff received notification that the County is now eligible for reimbursement of all categories of FEMA claims which includes debris collection. These costs will be reimbursed by FEMA at 100% for the first 60 days following the storm event. 250 County Administrator's Matters October 11, 2022 Staff Recommendation Based upon the additional debris that has piled up along with the FEMA approval for debris removal expenses, staff recommends the Board authorize staff to mobilize CERES, the County's contracted emergency debris disposal contractor along with Debris Tech, our emergency debris removal monitoring provider. 251 INDIAN RIVER COUNTY, FLORIDA MEMORANDUM TO: Jason E. Brown; County Administrator THROUGH: Phillip J. Matson, AICP Community Development Director FROM: John Stoll Chief, Long Range Planning DATE: September 13, 2022 SUBJECT: Requesting authorization for Community Development Department Director, on behalf of the Indian River Board of County Commissioners, to Execute Single Family and Multi -Family Affordable Housing Impact Fee Waiver/Reduction Agreements. It is requested that the following information be given formal consideration by the Board of County Commissioners at its regular meeting on October 11, 2022. DESCRIPTION & CONDITIONS On February 18, 2020, the Board of County Commissioners (BCC) approved a list of recommendations from the County's Affordable Housing Advisory Committee (AHAC). Included in that list was a recommendation that the BCC provides an impact fee exemption for new single- family housing units and multi -family units of less than 1,500 square feet under air when occupied by households earning no more than 80% of Area Median Income (AMI). On March 10, 2020, the BCC approved a revised impact fee schedule that included an impact fee exemption for new single-family housing units of less than 1,000 square feet under air when occupied by households earning no more than 80% AMI; and a 50% impact fee reduction for new affordable single-family housing units of between 1,000 and 1,500 square feet under air when occupied by households earning no more than 80% of AMI. At the June 22, 2022, AHAC meeting, several new housing affordability incentives were discussed. One of the ideas from the meeting was to provide an impact fee exemption for multi- family housing units, less than 1,500 square feet, occupied by households earning no more than 80 % AMI. In addition to the multi -family affordability exemption, Staff and AHAC discussed expanding the existing 100% impact fee exemption for housing units of less than 1,000 square feet. Staff recommends that a total 100% impact fee exemption should be provided for both multi- family and single-family units, less than 1,500 square feet, occupied by households earning no more than 80% AMI 252 At this time, it is requested that the BCC review and consider a draft ordinance (Attachment 1) that proposes to amend the existing affordable housing impact fee waiver process and direct staff to begin implementing this waiver process utilizing the pending ordinance doctrine. Staff will return to the Board with a formal ordinance amendment once all statutory requirements have been met. ANALYSIS Consistent with Florida Statutes Sections 163.31801, the County may provide an exception or waiver for an impact fee for the development or construction of affordable housing, as defined in s. 420.9071. Jurisdictions that choose to do so are not required to use revenues to offset the impact. The new single-family and multi -family housing unit impact fee waiver/reduction categories, consistent with Florida Statute, are more narrowly defined than the broad allowances allowed by State Statute. With respect to the Single -Family and Multi -Family Affordable Housing Impact Fee Waiver/Reduction Agreement, the agreement includes an establishment of an affordability time period/term, the financial impact fee waiver amount, the impact fee that otherwise would be charged without the waiver, a monetary penalty amount for violating, processes for income verification, and applicability language, and general legal language for breach of the agreement. This analysis will focus on the time period, terms, penalties, and review processes. The proposed income qualification requirements are based on the requirements used by the County's State Housing Initiative Partnership (SHIP) program. As written, the impact fee agreement requires for a period of 10 years (same as SHIP rehab mortgage time period), income verification at the time of initial occupancy and at the time of change of occupancy. If the single- family home or multi -family unit is sold or rented to a household that has a household income that exceeds 80% of the AMI, 100% of the impact fees that otherwise would have been charged must be paid, plus a 3% annual penalty (same as SHIP program). If the single-family home or multi- family unit is sold or rented anytime between 5 and 10 years since the effective date to a household that has a household income that exceeds 80% of the AMI, then 50% of the impact fees that otherwise would have been charged must be paid plus a 3% annual penalty. After ten years of use by income -qualified households, the impact fee agreement terminates, and no impact fees would be required to be paid (100% forgiveness). There are a couple of different income verification options established in the agreement depending upon the entity/person developing the housing and the circumstances involved. For developers of affordable housing that have income restrictions and verification requirements established through State or Federal programs or through nonprofit housing providers established processes acceptable to the County, they will have the option of executing a certification of household income form. In these cases, the County will have the right to audit and review applicant files to verify income. For builders and homeowners that are not subject to established State, Federal, or nonprofit housing programs with income verification processes acceptable to the County, County staff will verify income based on established State Housing Initiative Partnership (SHIP) processes. Two separate application packets have been prepared by staff for use. 253 CONCLUSION As proposed, the County's Affordable Housing Single -Family and Multi -Family Housing Unit impact fee waiver/reduction agreement sets the parameters and performance criteria for the waivers/reductions. The 10 -year period of performance, 3% penalty for non-compliance, and income qualification processes set up in the agreement are modeled after the County's SHIP program, a program that has been operating successfully with similar provisions (with some variations) since the early 1990s. Using the provisions of the County's established affordable housing program allows for consistency, particularly when SHIP home purchase applicants will also likely be applying for the impact fee waiver/reduction program. RECOMMENDATION Staff recommends that the Board of County Commissioners: 1. Direct staff to prepare and notice for a formal amendment to Article X, Appendix A Impact Fee Schedules. 2. Authorizing the Community Development Department Director, On Behalf of the Indian River Board of County Commissioners, to Execute Single Family and Multi -Family Affordable Housing Impact Fee Waiver/Reduction Agreements. 3. Direct staff to prepare a Resolution through the Pending Ordinance Doctrine, and permit staff to implement the new impact fee rates during the time the adopting ordinance is amended. ATTACHMENTS 1) Draft Proposed Ordinance 2) Draft Amendment to Appendix A — Impact Fee Schedules 3) VIP Matrix 254 ORDINANCE NO. 2022 AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF INDIAN RIVER COUNTY, FLORIDA, AMENDING TITLE X, IMPACT FEES, OF THE CODE OF INDIAN RIVER COUNTY, TO AMEND THE TEXT OF TITLE X FOR LEVEL OF SERVICE STANDARDS USED IN IMPACT FEE CALCULATIONS AND CLEAN UP REVISIONS AS MAY BE NECESSARY; AND TO AMEND APPENDIX A, IMPACT FEE SCHEDULES TO APPROVE NEW IMPACT FEE SCHEDULES FOR UNINCORPORATED INDIAN RIVER COUNTY AND MUNICIPALITIES FOR QUALIFYING AFFORDABLE HOUSING; PROVIDING FOR EFFECTIVE DATE FOR NEW IMPACT FEE SCHEDULES; AND PROVIDING FOR CODIFICATION; SEVERABILITY; AND EFFECTIVE DATE. WHEREAS, to address infrastructure costs associated with new growth, Indian River County has, since 1986, imposed traffic impact fees on new development. In 2005, the County adopted impact fees for eight additional services/facilities, also to address infrastructure costs associated with new growth; and WHEREAS, since their adoption, impact fees have generated revenue, and impact fees are an important sources of funding for infrastructure projects in Indian River County; and WHEREAS, the Consultant, in coordination with staff, developed the proposed impact fee schedules based upon the Consultant's report, impact fee update, and Affordable Growth methodology; and. WHEREAS, in response to a request by the Board of County Commissioners, after advisement of the Affordable Housing Advisory Committee, new land use categories were created in the impact fee schedule to eliminate impact fees for single-family homes and multi- family units of less than 1,500 square feet for households with incomes below 80% of area median income; and WHEREAS, staff advertised for a public hearing to be held on _, 2022, and also provided 30 days' notice to each municipality and to the school board as required by each impact fee agreement between the County and each municipality, and the County and school board. NOW, THEREFORE, BE IT ORDAINED by the Board of County Commissioners of Indian River County, Florida, that: Section 1. ENACTMENT AUTHORITY. Article VIII, section 1 of the Florida Constitution and chapter 125, Florida Statutes vest broad home rule powers in counties to enact ordinances, not inconsistent with general or special law, for the purpose of protecting the public health, safety, and welfare of the residents of the county. The Indian River County Board of County Commissioners specifically determines that the ATTACHMENT 1 2551 ORDINANCE NO. 2022 enactment of this ordinance is necessary to protect the health, safety, and welfare of the residents of Indian River County. Section 2. Amendment of Title X (IMPACT FEES). New language is indicated by underline, and deleted language is indicated by �' ethr-etigh Title X (IMPACT FEES) of the Code of Indian River County, Florida, is hereby amended to read as follows: Section 2. Appendix A. Impact Fee Schedules Appendix A, Impact Fee Schedules, of Title X, Impact Fees, of the Code of Indian River County for the unincorporated Indian River County and municipalities is hereby replaced with the attached Appendix A. Section 3. CODIFICATION. It is the intention of the Board of County Commissioners that the provision of this ordinance shall become and be made part of the Indian River County Code, and that the sections of this ordinance may be renumbered or re -lettered and the word ordinance may be changed to section, article or such other appropriate word or phrase in order to accomplish such intention. Section 4. SEVERABILITY. If any part of this ordinance is held to be invalid or unconstitutional by a court of competent jurisdiction, the remainder of this ordinance shall not be affected by such holding and shall remain in full force and effect. Section 5. REPEAL OF CONFLICTING ORDINANCES. All ordinances or parts of ordinances in conflict herewith are hereby repealed. Section 6. EFFECTIVE DATE The impact fee rates contained in Appendix A of this ordinance shall take effect on , 2022 provided that prior to that date the Indian River County School Board approves the public education facilities impact fee rates as contained in that Appendix. If the Indian River County School Board does not approve the public education facilities impact fee rates as contained in Appendix A prior to , 2022, the public education facilities impact fees shall thereafter be removed from Appendix A and the administrative fee and total impact fee columns shall be adjusted accordingly. ATTACHMENT 1 2562 ORDINANCE NO. 2022 This ordinance was advertised in the Press -Journal on the day of 2022, for a public hearing to be held on the day of , 2022, at which time it was moved for adoption by Commissioner , seconded by Commissioner , and adopted by the following vote: Peter D. O'Bryan, Chairman Jose Earman, Vice Chairman Susan Adams, Commissioner Joseph E. Flescher, Commissioner Laura Moss, Commissioner The Chairman thereupon declared the ordinance duly passed and adopted this day of , 2022. Board of County Commissioners Indian River County, Florida IM Peter D. O'Bryan, Chairman ATTEST: Jeffrey R. Smith, Clerk and Comptroller Lo Deputy Clerk This ordinance was filed with the Department of State and becomes effective on the following date: APPROVED AS TO FORM AND LEGAL SUFFICIENCY Dylan Reingold, County Attorney APPROVED AS TO PLANNING MATTERS Phillip J. Matson, AICP; Community Development Director FACommunity Development\Impact Fee\AFFORDABLE HOUSING\SF Impact Fee Waiver BCC Item\2022 Impact Fee Waiver BCC\Draft 2022 Impact Fee Ordinance-MFWaiver.doc ATTACHMENT 1 2573 U A N C O .Q N 0 V, Baya Ax/i s.a sca r"scv it -. 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U CZ cn O cn Lco Cl co O_ O O O N O O (6 CCT i + 70 Cn E '0 a--+ O S= 4-j O U > �O O CCT CCT 75 10/11/2022 Item 12.A.1 IMPACT FEE WAIVERS SINGLE-FAMILY & MULTIFAMILY AGREEMENTS FOR AFFORDABLE HOUSING IMPACT FEES Definition: Fees charged to developers to cover, in whole or in part, the anticipated cost of improvements that will be necessary as a result of the development. z-'-J'I - I 10/11/2022 Item 12.A.1 BACKGROUND 18 FEB 2020 BCC approved AHAC recommendations Impact fee exemption for new single-family & multifamily units less than 1,500 sf for households less than 80% Area Median Income (AMI) 10 MAR 2020 BCC approved revised impact fee schedule Impact fee exemption single-family housing units less than 1,000 sf — 80% AMI 50% Impact fee reduction single-family housing units between 1,000 sf — 1,500 sf — 80% AMI No waiver/reduction process for multifamily units established 22 JUN 2022AHAC Impact Fee Discussion Expand the single-family affordable waiver process and include a Multifamily waiver process EXISTING SCHEDULE 251. 2 RESICea71AL: Single Family (Detached) - less than 1,000 sf Household Income Not to Exceed 80%of Median fi-e. du 0 50 $0 210 Single Family (Detached) - 1,000 to 1,500 sf (Household Income Not to Exceed 80% of Median In-)' du $4,336 $87 $4,423 Sin Ie Famil Detached - Less than 1,500 sf du $8669 $173 $8842 Single 1,501 to 2,499 sf du $9,650 $193 $9,043 Sin le Famil (Detached - 2,500 sf and eater du $10,777 $216 $10,993 220 Multi,Family (Low -Pose, l-2levels) du $6,249 $125 $6,371 221 Multi -Family Mid -Rise, 3-10 levels) du $50325101 SS,133 240 Madle Home P""RV (tkd down) du $4,039 581 $4,120 252 Assisted Care Lwin Faclll AC bed $1033 521 $1,054 251. 2 PROPOSED CHANGES Expand the single-family affordable housing waiver process to exempt from impact fees all single-family housing units less than 1,500 sf when occupied by households earning no more than 80% AMI: Exempt multi -family housing units less than 1,500 sf from the payment of impact fees when occupied by households earning no more than 80% AMI: PROPOSED SCHEDULE 10/11/2022 Item 12.A.1 2� j � 3 WIDEAIFFAL Mpact Fee Fee Smgfe family(Detached)-r^.,° X11 to 1.500 sf (Household Income Not to Exceed 80%af Median Income)• du $D $D]$8,84 110 Sin Ie family (Detached - Less than 1,500 of du $8,669 $173Sin le Famll Detached) -1,501 to 2,499 sf du $9,650 $193Single Family(Detached)- 2,500 sf and greater du $10,777 $216 Multi-Family(Low-Rise, 1.2 1-11- ] to 1,500 sf Der unit Household Income Not to Esceed 80%of Med-ianlncome du 220 Mulci Family (LO Rise, 1-2 levels) du $6,249 $125 $6,374 Multi-FamitylMid-Rise, 3-10 levels) - I to 1,500 sf per unit u h Id me Nat t d 80%Df Median Income • $Q $Q 221 Multi-Family(Mid-Rise, 3-10lewls) du $5,032 $lot $5,133 240 Mobile Home Fork/RV (tied down) du 54,039 $81 $4,120 252 Assisted Care ti Nn Fa fity(ACLF) bed $1033 $21 $1,054 10/11/2022 Item 12.A.1 2� j � 3 10/11/2022 Item 12.A.1 VISIONING IMPLEMENTATION PRINCIPLES V.I.P. 11 RECOMMENDATION Staff recommends that the Board of County Commissioners: Direct staff to prepare and notice for a formal amendment to Article X,Appendix A Impact Fee Schedules. Authorize the Community Development Department Director, on behalf of the BCC, to execute single family and multi -family affordable housing impact fee waiver agreements. Direct staff to prepare a resolution through the Pending Ordinance Doctrine, and permit staff to implement the new impact fee rates during the time the adopting ordinance is amended. 2c5I.4 Dylan Reingold, County Attorney William K DeBraal, Deputy County Attorney Susan J. Prado, Assistant County Attorney 12A County Attorney's Matters - B. C. C. 10.11.22 Office of INDIAN RIVER COUNTY MEMORANDUM TO: Board of County Commissioners FROM: Dylan Reingold, County Attorney DATE: September 30, 2022 ATTORNEY SUBJECT: Request for Closed Attorney -Client Session Relating to INDIAN RIVER COUNTY v. TWENTY-TWO BEACHFRONT PROPERTIES LOCATED BETWEEN, AND INCLUDING, 9586 DOUBLOON DR., AND, BUT NOT INCLUDING, 1820 WABASSO BEACHRD., VERO BEACH, FLORIDA, 32963 (Case No.: 312018 CA 00088 1) BACKGROUND. In accordance with Section 286.011(8), Florida Statutes the County Attorney requests that the Indian River County Board of County Commissioners (the "Board") schedule a closed attorney-client session to be held on October 18, 2022 in the County Commissioners' Conference Room. Per Florida Statutes, the subject matter of the meeting shall be confined to settlement negotiations and/or strategy sessions related to litigation expenditures. The attendees at the session will be the Board, the County Administrator, the County Attorney, outside counsel (Paul Berg) and a certified court reporter. Reasonable public notice will be given of the session. It is estimated that the session will last approximately 45 minutes. RECOMMENDATION. The County Attorney recommends that the Board schedule a closed attorney-client session to occur at 10:30 AM on October 18, 2022. C:1Gr i=lLeestarJMITmp11031416b-91ce-4Ob7-97Jb-3111c1ecdeo..doc 260 October 4, 2022 ITEM 14.13. INDIAN RIVER COUNTY BOARD OF COUNTY COMMISSIONERS INTER -OFFICE MEMORANDUM TO: Members of the Board of County Commissioners DATE: September 26, 2022 SUBJECT: Discussion on Changes to Beach Renourishment Project Easement FROM: Joseph H. Earman Commissioner, District 3 Background Sector 7 beach renourishment continues to be a significant issue. At the March 8th BOCC meeting, the Board — citing the lack of sufficient signed easements (90% threshold) needed to move forward — elected to postpone the Sector 7 project until at least November, 2023, while staff applied for extensions to FEMA and FDEP funding. At the August 161h BOCC meeting, the Board agreed that I should begin to meet with individual Sector 7 homeowners (or groups of them) to gather information on how the county might best protect and enhance their eroded beaches. Discussion Based on the advice of Sector 7 community leaders, I believe there is a reasonable way forward to the current stalemate by making slight modifications to the existing easement. Specifically, I'm proposing the following two changes: 1. Removing the term "perpetual" from the easement addresses a concern mentioned by many of the holdout property owners. The length of the agreement would be implicitly perpetual, rather than explicitly. 2. Removing any specific references to swimming and sunbathing does not change the understood recreational uses associated with the beaches in Sector 7, despite the fact there is no convenient public access point within. Regardless of wording, it remains the county's stated goal to avoid barriers to public access being installed on the beaches. Analysis Based on the advice of Sector 7 community leaders, there is reason to believe that the 90% threshold will be met if the proposed changes to the easement are approved by the BCC. 261 Funding There is no funding associated with this proposal. Proposed Course of Action Allow Commissioner Earman to circulate the changed easement to Sector 7 beachfront residents to verify it is an acceptable compromise. If so, proceed with staff formally securing and recording signed easements. Attachment Easement document with red -lined changes 262 P-er�l Beach Management and Assessment Easement Grantor: Beachfront Property Owner Property Address Vero Beach, FL 32963 Grantee: Indian River County, Florida, a political subdivision of the State of Florida, 1801 27th Street, Vero Beach, Florida 32960 Date: , 2022 In consideration of the sum of one dollar ($1.00) and other valuable considerations, receipt of which is acknowledged, Grantor grants to Grantee, its agents, successors and assigns, an assignable pefpetua-1 easement and right-of-way in, on, over and across the land described in Schedule "A" for use by the Board of County Commissioners of Indian River County, Florida ("County"), its representatives, agents, contractors, and assigns, to construct; preserve; patrol; operate; maintain; repair; rehabilitate; and replace; a public beach and dune system and other erosion control and storm damage reduction measures together with appurtenances thereto, including the right to deposit sand; to accomplish any alterations of contours on said land; to construct berms' and dunes; to nourish and renourish periodically; to move; temporarily store and remove equipment and supplies; to erect and remove temporary structures (as used herein, the words "Temporary structures" does not include buildings of any kind); and to perform any other work necessary and incident to the construction, periodic renourishment, maintenance, and implementation of the Indian River County's Beach Preservation Plan, together with the right of public use and access for r-eer-eational pufpeses, bineludin,., but not limited t noFmal use of the sandy b h area f beaeh s i g, .nhathing, and other- traditional beach recreational activities, only on the portion of Granter's property described in Schedule "A"; to protect and monitor nesting marine turtles and hatchlings from the adverse effects of anthropogenic activity as required by the Florida Fish and Wildlife Conservation Commission Marine Turtle Permit issued to the County and the County Habitat Conservation Plan in order to provide for overall improvement in nesting habitat and to increase successful nesting activities and production of hatchlings on the beaches located in the state of Florida; to salvage for the purpose of protecting public health and welfare; to plant vegetation on said dunes and berms; to facilitate preservation of dunes and vegetation (provided, however that the Grantor shall retain the right to construct one or more dune crossovers provided all applicable federal, state, and local permits and approvals for any such crossovers are obtained); to remove from said land debris and obstructions within the limits of the easement; and further reserving to the grantor, its successors and assigns all such rights and privileges as may be used and enjoyed without interfering with or abridging the rights and easements hereby acquired; subject however to existing easements for public utilities and pipelines. None of the easement rights granted hereunder are intended to give the Grantee, and shall not be construed or deemed to give the Grantee, the right to prohibit or restrict the Grantor and its successors and assigns from using and enjoying the sandy portion of the beach within the land described in Schedule "A" for recreational purposes in the same manner and to the same extent as members of the general public are entitled to use beach areas with the County for recreational purposes. 263 IN WITNESS WHEREOF, Grantor has herein set its hand and seal the day and year written above. Signature: Printed Name: Witness Signature Printed Name Witness Signature Printed Name Notary Insert HERE (Grantor)