AGREEMENT

Between

BROWARD COUNTY

and

[CORPORATE NAME OF VENDOR]

For

PHARMACY BENEFIT MANAGEMENT SERVICES FOR BROWARD COUNTY BENEFIT ELIGIBLES (COVERED INSUREDS)

For

Broward County Employees Contract Period – January 1, 20__ - December 31, 20__

RFP # R1412304P1

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INDEX ARTICLE PAGE

1. DEFINITIONS AND IDENTIFICATIONS ......................................................

2. SCOPE OF SERVICES/SELECTED POLICIES AND BENEFITS ...............

3. TERM OF AGREEMENT .............................................................................

4. COMPENSATION ........................................................................................

5. GENERAL PROVISIONS/PERFORMANCE GUARANTEES ......................

6. PAYMENT OF PENALTIES .........................................................................

7. TERMINATION ............................................................................................

8. INDEMNIFICATION .....................................................................................

9. NOTICES .....................................................................................................

10. INSURANCE ................................................................................................

11. EEO COMPLIANCE AND CBE COMPLIANCE ...........................................

12. MISCELLANEOUS ...................................................................................... EXECUTION PAGES……………………………………………………………..

EXHIBITS EXHIBIT "A" SCOPE OF SERVICES

EXHIBIT "B" FEES/DISCOUNTS

EXHIBIT "C" PERFORMANCE STANDARDS

EXHIBIT "D" SAMPLE INVOICE

EXHIBIT "E" BUSINESS ASSOCIATE ADDENDUM TO AGREEMENT

EXHIBIT “F” FORMULARY AND SPECIALTY PHARMACY DRUG LIST

EXHIBIT “G” CERTIFICATE OF LIABILITY

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AGREEMENT

Between

BROWARD COUNTY

and

[CORPORATE NAME OF VENDOR]

For

PHARMACY BENEFIT MANAGEMENT SERVICES FOR BROWARD COUNTY BENEFIT ELIGIBLES (COVERED INSUREDS)

For

Broward County Employees Contract Period – January 1, 20__ - December 31, 20__

RFP # R1412304P1

This is an Agreement made and entered into by and between BROWARD COUNTY, a political subdivision of the State of Florida, hereinafter referred to as "COUNTY,"

AND

[Corporate Name of Vendor], a ___________ corporation [please note: if Vendor is not a Florida corporation, then Vendor must be licensed to conduct business in Florida], its successors and assigns, hereinafter referred to as “VENDOR.”

WHEREAS, COUNTY is self-insured to provide pharmacy benefits for its benefits-eligible employees, COBRA and Retiree members, and their covered dependents; and WHEREAS, COUNTY seeks to partner with an entity that can provide pharmacy benefits management, including wellness and disease management programs, in a first class, cost-effective manner; and

WHEREAS, VENDOR was selected through a competitive solicitation and

procurement process to partner with COUNTY to provide such pharmacy benefits management; NOW, THEREFORE,

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In consideration of the mutual terms, conditions, promises, covenants, and payments hereinafter set forth, COUNTY and VENDOR agree as follows:

ARTICLE 1 DEFINITIONS AND IDENTIFICATIONS

The following definitions apply unless the context in which the word or phrase is used requires a different definition: 1.1 Agreement – means this document, Articles 1 through __, inclusive. Other terms

and conditions are included in the exhibits and documents that are expressly incorporated by reference.

1.2 Average Wholesale Price or “AWP” – means the price defined and distributed by a nationally recognized AWP pricing source, selected by VENDOR in VENDOR’s sole discretion, for each drug in the database. This price is based on the 11-digit National Drug Code("NDC") number (or such other industry-standard identifier as may be communicated by VENDOR to COUNTY) submitted for the dispensed medication and represents the package size for retail, mail and Specialty Pharmacy Drugs for commercial size quantities typically used in the pharmacy benefit management industry. Such AWPs shall be updated in the claims processing system within one week of VENDOR’s receipt from its pricing source. VENDOR will use Medi-Span Master Drug Database as its pricing source with the NDC 11 digit code identifier to process the County’s claims. Should the pricing source and/or the identifier change, VENDOR must provide a minimum of thirty (30) days written notice to COUNTY.

1.3 Benefit Eligible – means an employee, retiree, or dependent deemed by COUNTY to be eligible to receive county benefits and designated as "Benefit Eligible." Notwithstanding the foregoing, an eligible employee is an employee who works full time, having a normal work week of twenty (20) or more hours, and who has met any applicable waiting period or other requirements and, if covered, retired employees as of January 1, 201_ ("Effective Date"). Subject to any eligibility exceptions noted herein, an employee becomes eligible for coverage on the Effective Date. The waiting period is the length of time an employee must wait before becoming eligible for coverage.

1.4 Benefit Plan or Plan – means the prescription drug benefit plan(s) sponsored or administered by County that provides a prescription drug benefit to Benefit Eligible and Members. The County acknowledges that it has the sole authority to control and administer the Plan. Nothing in this Agreement shall be construed or deemed to confer upon Catamaran any responsibility for or control over the terms or validity of the Plan.

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1.5 Benefit Plan Design or BPD – means a prescription drug benefit summary form VENDOR has provided to COUNTY which, when completed and signed by COUNTY, shall describe the essential elements of COUNT0Y’s pharmacy benefit plan for benefit eligible employees, retirees, COBRA and survivor group, which is a component of the COUNTY’s Health Insurance Benefit Program provided under IRS Code Section 125.

1.6 Board – The Broward County Board of County Commissioners.

1.7 Calendar Quarter – Each calendar quarter of the contract year divided as follows:

first quarter being January 1 through March 31; the second quarter being April 1 through June 30; the third quarter being July 1 through September 30 and; the fourth quarter being October 1 through December 31.

1.8 Compound Drugs – means those drugs containing at least federal legend drug

and multiple ingredients that are measured and mixed by a pharmacists duly licensed by the applicable state licensing boards.

1.9 Contract Administrator – The Broward County Administrator, the Director of the

Broward County Human Resources Division, or the designee of such County Administrator or Director. The primary responsibilities of the Contract Administrator are to coordinate and communicate with VENDOR and to manage and supervise execution and completion of the Scope of Services and the terms and conditions of this Agreement as set forth herein. In the administration of this Agreement, as contrasted with matters of policy, all parties may rely on the instructions or determinations made by the Contract Administrator; provided, however, that such instructions and determinations do not change the Scope of Services.

1.10 COUNTY – Broward County, Florida, a body corporate and politic pursuant to Article I of the Broward County Charter, and a political subdivision of the State of Florida pursuant to Article VIII, § 1, of the Florida state Constitution.

1.11 County Administrator – The administrative head of COUNTY pursuant to Sections 3.02 and 3.03 of the Broward County Charter.

1.10 County Attorney – The chief legal counsel for COUNTY who directs and

supervises the Office of the County Attorney pursuant to Section 2.10 of the Broward County Charter.

1.11 County Business Enterprise or “CBE” – is a small business located in Broward

County, Florida, which meets the criteria and eligibility requirements of Broward County’s CBE Program and must be certified by Broward County’s Office of Economic and Small Business Development.

1.12 Covered Drugs – means those prescription drugs (including, Generic Drugs, as

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defined herein), supplies and other items that are covered under the Plan. 1.13 Formulary – means VENDOR’s list of FDA-approved prescription drugs and

supplies, which designates each item as "preferred," "non-preferred" or "neutral" for purposes of benefit design and coverage decisions. The Formulary is developed by VENDOR’s Pharmacy and Therapeutics Committee taking into consideration safety, medical appropriateness, efficacy, quality of life and relative cost indications within applicable therapeutic categories. The Formulary may be modified from time to time in VENDOR’s sole discretion, as a result of the factors described above and new therapeutic agents that become available; except that with respect to the Formulary for COUNTY, VENDOR shall only remove therapeutic agents at the end of the calendar year, except as otherwise mutually agreed upon and subject to FDA action, such as withdrawal of a drug from the market, or if a generic becomes available. A copy of the Formulary as in effect from time to time shall be delivered to COUNTY.

1.14 Generic Drugs – means those prescription drugs, whether identified by its

chemical, proprietary, or non-proprietary name, which are classified as a generic for pricing and/or discount guarantees according to the guidelines published under ANDA (abbreviated new drug application) guidance from 42 CFR Section 423.4.

1.15 HIPAA – the Health Insurance Portability and Accountability Act of 1996, as

amended and the corresponding regulations thereof. 1.16 Identification Card or “ID Card” – means a printed identification card containing

information about the prescription drug benefits to which the Member (as defined herein) is entitled and the applicable VENDOR pharmacy network logos or other method of identifying the fact that VENDOR is the provider of prescription drug benefit services in a form acceptable to VENDOR.

1.17 Mail Service Pharmacy – means a duly licensed pharmacy operated by

VENDOR, or, at VENDOR’s sole discretion, a mail service pharmacy operated by a third party, where prescriptions are filled and delivered to Members via the mail service. Use of a third party mail service provider must be communicated to COUNTY by VENDOR with at least ninety (90) days prior notice of this change. The Mail Service Pharmacy guarantees a dispensing accuracy of 99.90 percent, based on tracked and validated external feedback from Members in each contract year during the term of the Agreement, measured against the Mail Service Pharmacy's book of business results. Notwithstanding anything to the contrary elsewhere in this Agreement, reports and/or audits related to this standard shall be made available to COUNTY only in the event and to the extent both parties first agree, in writing, to the content, frequency, manner, and format.

1.18 Mailing Time – Pursuant to this Agreement, performance deadlines have been

established including an allowance for correspondence sent by United States mail. Mailing time is defined as means six (6) calendar days except in the case of a

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performance deadline which falls on a Sunday or legal holiday. In such cases, delivery by mail shall be deemed to have occurred on the following calendar day.

1.19 Maximum Allowable Cost Lists or “MAC Lists” – means VENDOR’s proprietary

lists of generic drugs and their associated prices for which COUNTY shall pay VENDOR for dispensing services provided by Participating Pharmacies and the Participating Mail Service Pharmacy hereunder as set forth in Exhibit "F." The MAC Lists shall be updated at least monthly, based upon a regular review of market prices, by VENDOR. Occasional mid-month updates may occur to maximize opportunity when blockbuster drugs become available as generics so as to give COUNTY maximum discount value.

1.20 Member – means a Benefit Eligible employee, COBRA or Domestic Partner

Continuation beneficiary, Retiree or Covered dependent(s) of these groups, who has elected to participate in health benefit plans offered by COUNTY.

1.21 Member Contribution – means that portion of the charge for each Covered Drug

dispensed to the Member that is the responsibility of the Member (e.g., copayment, coinsurance and/or deductible).

1.22 Member Submitted Claim – means (i) a claim submitted by a Member receiving

Covered Drug benefits pursuant to COBRA; or (ii) subrogation claims submitted by the United States or any state under Medicaid or similar government health care programs.

1.23 Offer – means the offer prepared by Plan for the Board and submitted in response

to RFP # R1412304P1 as amended through subsequent negotiations with COUNTY Staff and the Selection Committee.

1.24 Participating Pharmacy – means any licensed retail pharmacy with which

VENDOR has executed an agreement to provide Covered Drugs to Members. 1.25 Pass Thru Transparency Pricing – means retrospective rebates, discounts, and

any other revenues which are paid directly to VENDOR from various sources that are attributable to Members as a result of this Agreement, shall be paid to COUNTY. These sources include, but are not limited to, access rebates, market share rebates, administrative fees, data aggregation fees, data sales to third parties, discounts, disease management fees, Preferred Drug List, grants, and compliance and adherence revenues paid directly or indirectly by third parties including, but not limited, to pharmaceutical manufacturers. VENDOR does not include differentials and/or spread pricing in their calculations regarding this contract.

1.26 Performance Standard Penalties – means the assessment of penalties for

VENDOR’s failure to meet performance guarantees as set forth in Exhibit “C,” attached hereto and incorporated herein, entitled “Performance Standards.”

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1.27 Prescription Drug Claim – means a Member Submitted Claim or claim for payment submitted to VENDOR by a Participating Pharmacy, or Mail Service Pharmacy as a result of dispensing Covered Drugs to a Member.

1.28 Rebate – means any discounts or fees of any kind which are paid to VENDOR

from pharmaceutical manufacturers under a rebate contract that results from prescription utilization by Members. VENDOR does not include differentials and/or spread pricing in their calculations regarding this Agreement.

1.29 RFP – means the Request for Proposals for Pharmacy Benefit Management

Services, RFP #. R1412304P1. 1.30 Usual and Customary Price or “U&C” – means the retail price charged by a

Participating Pharmacy for the particular drug in a cash transaction on the date the drug is dispensed as reported to VENDOR by the Participating Pharmacy.

1.31 Vendor -- Selected by the Board to provide Group Vision Insurance benefits,

pursuant to the terms of this Agreement, the RFP, and the Offer.

ARTICLE 2

SCOPE OF SERVICES/SELECTED POLICIES AND BENEFITS 2.1 VENDOR shall perform all work identified in this Agreement and Exhibit "A." The

parties agree that the scope of services is a description of VENDOR’s obligations and responsibilities and is deemed to include preliminary considerations and prerequisites, and all labor, materials, equipment, and tasks which are such an inseparable part of the work described that exclusion would render performance by VENDOR impractical, illogical, or unconscionable.

2.2 VENDOR acknowledges and agrees that the Contract Administrator has no

authority to make changes that would increase, decrease, or otherwise modify the Scope of Services to be provided under this Agreement.

2.3 VENDOR shall pay its subcontractors and suppliers, including Participating

Pharmacies and CBE subcontractors and suppliers, within thirty (30) days following receipt of payment from COUNTY for such subcontracted work or supplies. VENDOR agrees that if it withholds an amount as retainage from such subcontractors or suppliers, that it will release such retainage and pay same within thirty (30) days following receipt of payment of retained amounts from COUNTY.

2.4 VENDOR's bid submittal, RFP # R1412304P1, shall be relied upon and

incorporated herein as additional terms and conditions that VENDOR agrees to for

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the duration of this contract unless otherwise noted in this Agreement or the incorporated and attached Exhibits.

ARTICLE 3

TERM OF AGREEMENT

3.1 TERM: This Agreement shall commence on January 1, 20__ and terminate on December 31, 20__, unless termination occurs earlier pursuant to the terms of this Agreement. However, if the term of this Agreement extends beyond a single fiscal year of COUNTY, the continuation of this Agreement beyond the end of any fiscal year shall be subject to both the appropriation and availability of funds in accordance with Chapter 129, Florida Statutes.

3.2 RENEWAL: COUNTY has the option to renew this Agreement for two (2) additional

renewal terms upon written mutual consent of both COUNTY and VENDOR. The first renewal term shall commence on January 1, 20__ and shall end on December 31, 20__ (the “First Renewal Term”). The second renewal term shall commence on January 1, 20__ and shall end on December 31, 20__ (the “Second Renewal Term”). If VENDOR intends to enter into renewal negotiations with COUNTY, VENDOR shall notify COUNTY of its intent to do so at least two hundred seventy (270) days prior to the expiration of the initial term of this Agreement and any renewal term thereof.

3.3 EXTENSION: Notwithstanding the above, COUNTY shall have the right, by and

through its Contract Administrator and at his/her sole discretion, to extend the term of this Agreement on a month to month basis, for a maximum of six (6) months (“Extension Term”), due to ongoing negotiations and/or to allow time for transition to a new vendor on the same benefits and pricing terms as existed during the preceding term. However, if either party proposes any changes to the terms and conditions of the Agreement which would become effective during the Extension Term, the County Administrator’s decision to extend the Agreement shall be subject to Board approval.

ARTICLE 4 COMPENSATION 4.1 FEES: Fees for the services provided hereunder shall consist of the fees as set

forth in Exhibit "B", attached hereto and incorporated, entitled “Fees/Discounts.” COUNTY shall be responsible to VENDOR for timely payment of all fees for services provided. COUNTY acknowledges and agrees that VENDOR has no obligation to pay claims for prescription services provided by Participating Pharmacies and Mail Service Pharmacy until COUNTY makes such funds

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available to VENDOR for the payment of such claims. Prior to VENDOR’s non-payment of claims, VENDOR shall notify COUNTY in writing of such delinquency; and COUNTY shall have five (5) business days to resolve any outstanding issue or payment. VENDOR’s invoices to COUNTY shall include a mutually agreed upon summary itemization to identify the activities being billed to COUNTY.

4.2 METHOD OF BILLING AND PAYMENT 4.2.1 BILLING: VENDOR shall bill COUNTY twice per calendar month for:

(a) Covered Drugs dispensed by the Mail Service Pharmacy, Participating Pharmacies, and, if applicable, for Member-Submitted Claims, less applicable Member Contributions; and

(b) For all other applicable fees as agreed upon by the Parties pursuant to this Agreement.

4.2.2 PAYMENT METHOD: COUNTY agrees to pay VENDOR by bank wire transfer or

Automated Clearing House (ACH) transfer within five (5) calendar days from the date of COUNTY”s receipt of a proper invoice. To be deemed proper, all invoices must comply with the requirements set forth in this Agreement and must be submitted on the form pursuant to Exhibit “D” attached hereto and incorporated entitled “Sample Invoice.” Payment may be withheld for failure of VENDOR to comply with a term, condition, or requirement of this Agreement.

4.3 Notwithstanding any provision of this Agreement to the contrary, COUNTY may

withhold, in whole or in part, payment to the extent necessary to protect itself from loss on account of inadequate or defective work which has not been remedied or resolved in a manner satisfactory to the Contract Administrator or failure to comply with this Agreement. The amount withheld shall not be subject to payment of interest by COUNTY.

4.4 Payment shall be made to VENDOR at:

____________________________ ____________________________

____________________________

ARTICLE 5

GENERAL PROVISIONS/PERFORMANCE GUARANTEES

VENDOR agrees to meet the performance standards as set forth in Exhibit “C,” attached hereto and incorporated herein, entitled “General Provisions/Performance Guarantees.”

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5.1 VENDOR may request an extension of any service standard deadline established pursuant to this article. Such request shall be submitted to the Contract Administrator no less than five (5) business days before the deadline, unless the need for an extension could not reasonably be foreseen by VENDOR, or happened for a reason beyond VENDOR’s control, as determined by COUNTY. In the case of a need for an extension that could not be reasonably foreseen by VENDOR, VENDOR shall submit any request for an extension as soon as reasonably possible. If the request for an extension is based upon extenuating circumstances or other causes beyond VENDOR’s control, as determined by COUNTY, approval of the request shall not be unreasonably withheld. VENDOR’s written request must identify the section of this Article to which the request applies and the reasons why the established deadline could not be met. COUNTY may approve the extension request for such period as COUNTY deems appropriate. COUNTY shall notify VENDOR of its decision in writing within three (3) business days after receipt of VENDOR’s extension request.

5.2 Force Majeure If the performance of this Agreement, or any obligation hereunder is prevented by

reason of hurricane, earthquake, or other casualty caused by nature, or by labor strike, war, or by a law, order, proclamation, regulation, ordinance of any governmental agency, the party so affected, upon giving prompt notice to the other party, shall be excused from such performance to the extent of such prevention, provided that the party so affected shall first have taken reasonable steps to avoid and remove such cause of non-performance and shall continue to take reasonable steps to avoid and remove such cause, and shall promptly notify the other party in writing and resume performance hereunder whenever such causes are removed; provided, however, that if such non-performance exceeds sixty (60) days, the party that is not prevented from performance by the force majeure event shall have the right to terminate this Agreement upon written notice to the party so affected. This section shall not supersede or prevent the exercise of any right the parties may otherwise have to terminate this Agreement.

5.3 Time shall be deemed to be of the essence in performing the duties, obligations,

and responsibilities required by this Agreement. ARTICLE 6

PAYMENT OF PENALTIES

6.1 PENALTY INVOICES: If COUNTY, through its Contract Administrator, finds VENDOR has incurred penalties pursuant to the terms of this Agreement, COUNTY will submit a written invoice to VENDOR detailing the dates, Members’ names and identification numbers, if applicable, and alleged performance failures.

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6.2 AGREED PENALTIES: Any time penalties are incurred by VENDOR pursuant to the terms of this Agreement, COUNTY will submit an invoice to VENDOR for payment of these penalties no later than the end of the month following the period for which penalties were assessed. Unless VENDOR files a dispute pursuant to Section 6.3 herein, VENDOR must pay these penalties within twenty (20) days from the date of invoice. If a penalty is not paid by VENDOR pursuant to the terms of this Agreement, COUNTY may automatically deduct the penalty amounts from COUNTY's monthly premium payment.

6.3 DISPUTED PENALTIES: Any time penalties are assessed by the Contract

Administrator against VENDOR pursuant to the terms of this Agreement, VENDOR may appeal the assessment of such penalties to the Director of Purchasing within ten (10) days after notice of the assessment pursuant to Article 9 of this Agreement. The appeal shall be in writing and VENDOR shall state the reasons why the penalties should be reduced or not assessed. If the appeal is not resolved by mutual agreement, the Director of Purchasing shall promptly issue a decision in writing, after consulting with the County Attorney's Office. The decision shall state the reasons for the action taken, and inform VENDOR of its right to administrative review. If VENDOR disagrees with the decision of the Director of Purchasing, it may seek administrative review by filing notice with the Director of Purchasing not later than ten (10) days after the decision of the Director of Purchasing. COUNTY and VENDOR agree that the hearing procedures shall be in accordance with the provisions of Section 21.120 of the Broward County Procurement Code, as may be amended from time to time.

ARTICLE 7 TERMINATION 7.1 This Agreement may be terminated for convenience by the Board. Termination for

convenience by the Board shall be effective on the termination date stated in written notice provided by the COUNTY, which termination date shall be not less than thirty (30) days after the date of such written notice. This Agreement may also be terminated by the County Administrator upon such notice as the County Administrator deems appropriate under the circumstances in the event the County Administrator determines that termination is necessary to protect the public health or safety. The parties agree that if the COUNTY erroneously, improperly or unjustifiably terminates this Agreement for cause, such termination shall be deemed a termination for convenience, which shall be effective thirty (30) days after such notice of termination for cause is provided.

7.2 This Agreement may be terminated for cause for reasons including, but not limited

to, VENDOR's repeated (whether negligent or intentional) submission for payment of false or incorrect bills or invoices, failure to suitably perform its obligations under this Agreement; or failure to continuously perform its obligations under this

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Agreement in a manner calculated to meet or accomplish the objectives as set forth in this Agreement. The Agreement may also be terminated for cause if VENDOR is placed 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, Florida Statutes, as amended or if VENDOR provides a false certification submitted pursuant to Section 287.135, Florida Statutes, as amended.

7.3 TERMINATION OF THIS AGREEMENT BY VENDOR: In accordance with

applicable Florida law, VENDOR may terminate this Agreement for one or more of the following reasons upon such notice as provided by Florida law:

7.3.1 COUNTY failed to pay premiums in accordance with the terms of this

Agreement or VENDOR has not received timely premium payments and VENDOR provided COUNTY with notice in accordance with this Agreement and Florida law.

7.3.2 COUNTY performed an act or practice that constitutes fraud or made an

intentional misrepresentation of material fact under the terms of this Agreement.

7.3.3 COUNTY failed to comply with a material provision of this Agreement which

relates to rules for employer contributions of group participation. 7.3.4 VENDOR ceases offering this specific plan coverage or large group

coverage. 7.3.5 There is no longer any Member who lives or works in the VENDOR service

area. 7.4 In the event that VENDOR files a petition seeking bankruptcy protection, or enters

into an arrangement with creditors because of its insolvency, then upon thirty (30) days' notice, COUNTY may declare this Agreement cancelled.

7.5 Notice of termination shall be provided in accordance with Article 10 of this

Agreement, entitled “Notices," except that notice of termination by the County Administrator, which the County Administrator deems necessary to protect the public health, safety, or welfare may be made by verbal notice that shall be promptly confirmed in writing in accordance with Article 9 of this Agreement.

7.6 In the event this Agreement is terminated by COUNTY for convenience, VENDOR

shall be paid for any services performed in accordance with the Agreement through the termination date specified in the written notice of termination. VENDOR acknowledges and agrees that it has received good, valuable and sufficient consideration from COUNTY, the receipt and adequacy of which are, hereby

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acknowledged by VENDOR, for COUNTY's right to terminate this Agreement for convenience.

7.7 Notwithstanding the above, in the event this Agreement is terminated for any

reason, any amounts due VENDOR shall be withheld by COUNTY until all documents are provided to COUNTY pursuant to Article 12.1 of this Agreement.

ARTICLE 8 INDEMNIFICATION VENDOR shall at all times hereafter indemnify, hold harmless and, at the County Attorney’s option, defend or pay for an attorney selected by the County Attorney to defend COUNTY, its officers, agents, servants, and employees from and against any and all causes of action, demands, claims, losses, liabilities and expenditures of any kind, including attorney fees, court costs, and expenses, caused or alleged to be caused by any intentional, negligent or reckless act of, or omission of, VENDOR, its employees, agents, servants, or officers, or accruing, resulting from, or related to the subject matter of this Agreement including, without limitation, any and all claims, losses, liabilities, expenditures, demands or causes of action of any nature whatsoever resulting from injuries or damages sustained by any person or property. In the event any lawsuit or other proceeding is brought against COUNTY by reason of any such claim, cause of action or demand, VENDOR shall, upon written notice from COUNTY, resist and defend such lawsuit or proceeding by counsel satisfactory to COUNTY or, at COUNTY’s option, pay for an attorney selected by County Attorney to defend COUNTY. The obligations of this section shall survive the expiration or earlier termination of this Agreement. To the extent considered necessary by the Contract Administrator and the County Attorney, any sums due VENDOR under this Agreement may be retained by COUNTY until all of COUNTY's claims for indemnification pursuant to this Agreement have been settled or otherwise resolved. Any amount withheld shall not be subject to payment of interest by COUNTY. ARTICLE 9 NOTICES

Whenever either party desires to give notice to the other, except for notice relating to the performance of service provisions as set forth in Exhibit “C” of this Agreement, such notice must be in writing, sent by certified United States mail, postage prepaid, return receipt requested, or sent by commercial express carrier with acknowledgement of delivery, or by hand delivery with a request for a written receipt of acknowledgement of delivery, addressed to the party for whom it is intended, at the place last specified in Article 9. The place for giving notice shall remain the same as set forth herein until

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changed by giving notice in writing to the other party in the manner provided in this section. For the present, the parties designate the following:

COUNTY:

Human Resource Director Broward County Human Resources Division Governmental Center, Room 508 115 South Andrews Avenue Fort Lauderdale, Florida 33301 VENDOR: __________________________ __________________________ __________________________ __________________________

ARTICLE 10 INSURANCE 10.1 Insurance Coverage. VENDOR shall maintain, at its sole expense and at all times

during the term of this Agreement (unless otherwise provided), at least the minimum insurance coverages set forth in this Article, in accordance with the terms and conditions required by this Article. Each insurance policy shall clearly identify the foregoing indemnification as insured.

10.2 Such policy or policies shall be issued by companies authorized to do business in

the State of Florida, with an AM Best financial rating of A- or better. Coverage shall be provided on a form no more restrictive than the latest edition of the applicable form by the Insurance Services Office. VENDOR shall be responsible for any policy deductibles. VENDOR shall specifically protect COUNTY and the Board by naming COUNTY as an additional insured under the Commercial General Liability Policy as well as on any Excess Liability Policy. The official title of the certificate holder is Broward County Board of County Commissioners. This official title shall be used in all insurance documentation.

10.3 Commercial General Liability Insurance. A Commercial General Liability

Insurance Policy shall be provided with minimum limits of One Million Dollars

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($1,000,000) per occurrence combined single limit for bodily injury and property damage and Two Million Dollars ($2,000,000) per aggregate without restrictive endorsements limiting or excluding coverage for:

Premises and/or operations. Independent contractors. Products and /or Completed Operations for contracts. Broad Form Contractual Liability Coverage applicable to this specific Agreement. Personal Injury Coverage, with minimum limits of coverage equal to those required for Bodily Injury Liability and Property Damage Liability.

10.4 Business Automobile Liability. A Business Automobile Liability Policy shall be provided only if a business auto is used in performance of services, with minimum limits of One Million Dollars ($1,000,000) per occurrence combined single limit for bodily injury and property damage without restrictive endorsements limiting or excluding coverage for:

Owned Vehicles, if applicable. Hired and Non-Owned Vehicles, if applicable. Employers' Non-Ownership, if applicable.

10.5 Umbrella or Excess Liability. VENDOR may satisfy the minimum liability limits required; however, the annual aggregate limit shall not be less than the highest “each occurrence” limit for the underlying liability policy. VENDOR shall endorse County as an Additional Insured unless the policy provides coverage on a pure or true “Follow-form” basis.

10.6 Workers' Compensation Insurance. Workers’ Compensation Insurance shall apply

for all employees in compliance with Chapter 440, Florida Statutes, the Workers' Compensation Law, of the State of Florida and all applicable federal laws. Policy shall include Employer's Liability with minimum limits of One Million Dollars ($1,000,000) per accident:

10.7 Professional Liability Insurance. VENDOR shall maintain, for the term of this

Agreement, Professional Liability Insurance in the minimum amount of Two Million Dollars ($2,000,000) per occurrence. Any deductible amount shall not exceed One Hundred Thousand Dollars ($100,000) for each claim. The Certificate of insurance shall indicate the policy deductible.

10.8 VENDOR shall provide to COUNTY proof of insurance in the form of Certificates

of Insurance, including endorsements, Declarations pages or policies, evidencing all insurance coverage required by this Article within fifteen (15) calendar days after notification of award of this Agreement, which shall be attached hereto as Exhibit "G." The required Certificates of Insurance shall name the types of policies

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provided and refer specifically to this Agreement. County reserves the right to require a certified copy of such policies upon request. VENDOR's failure to provide to COUNTY the Certificates of Insurance evidencing the insurance coverage within fifteen (15) calendar days shall provide the basis for the termination of the Agreement.

10.9 Coverage is not to cease and is to remain in force until all performance required of

VENDOR is completed. All policies shall be endorsed to provide COUNTY with at least thirty (30) days' notice of expiration, cancellation and/or restriction of the policy. If any of the insurance coverage will expire prior to the completion of the work, proof of insurance renewal shall be provided to COUNTY upon expiration.

10.10 COUNTY reserves the right to review and revise any insurance requirements at

the time of renewal or amendment of this Agreement, including, but not limited to, deductibles, limits, coverage, and endorsements based on insurance market conditions affecting the availability or affordability of coverage, or changes in the scope of work or specifications that affect the applicability of coverage.

10.11 If VENDOR uses a subcontractor in its performance of the scope of this

Agreement, VENDOR shall ensure that subcontractor names “Broward County” as an additional insured on the Commercial General Liability Policy.

ARTICLE 11 EEO and CBE COMPLIANCE 11.1 VENDOR shall not unlawfully discriminate on the basis of race, color, national

origin, sex, religion, age, marital status, political affiliation, disability, sexual orientation, pregnancy, or gender identity and expression (including but not limited to any other protected category in Broward County Code, Chapter 16½, as may be amended from time to time) in the performance of this Agreement, the solicitation for or purchase of goods or services relating to this Agreement, or in subcontracting work (if authorized) in the performance of this Agreement. VENDOR shall include the foregoing or similar language in its agreements with any subcontractors, except that any project assisted by the U.S. Department of Transportation funds shall comply with the non-discrimination requirements in 49 CFR Parts 23 and 26, as amended. Failure to comply with the foregoing requirements is a material breach of the Agreement, which may result in termination of this Agreement or such other remedy as COUNTY deems appropriate.

11.2 VENDOR shall not unlawfully discriminate against any person in its operations and

activities or in its use or expenditure of funds in fulfilling its obligations under this Agreement. VENDOR shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act (ADA) in the course of providing any services

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funded by COUNTY, including Titles I and II of the ADA (regarding nondiscrimination on the basis of disability), and all applicable regulations, guidelines, and standards. In addition, VENDOR shall take affirmative steps to ensure nondiscrimination in employment against disabled persons.

11.3 By execution of this Agreement, VENDOR represents that it has not been placed

on the discriminatory vendor list (as provided in Section 287.134, Florida Statutes, as may be amended from time to time). COUNTY hereby materially relies on such representation in entering into this Agreement. An untrue representation of the foregoing shall entitle COUNTY to terminate this Agreement and recover from VENDOR all monies paid by COUNTY pursuant to this Agreement, and may result in debarment from COUNTY’s competitive procurement activities.

11.4 Although no CBE goal has been set for this Agreement, COUNTY encourages

VENDOR to give full consideration to the use of CBE firms to perform work under this Agreement.

ARTICLE 12

MISCELLANEOUS 12.1 RIGHTS IN DOCUMENTS AND WORK

Any and all reports, photographs, surveys, and other data and documents provided or created in connection with this Agreement are and shall remain the property of COUNTY; and, if a copyright is claimed, VENDOR grants to COUNTY a non-exclusive license to use the copyrighted item(s) indefinitely, to prepare derivative works, and to make and distribute copies to the public. In the event of termination of this Agreement, any reports, photographs, surveys, and other data and documents prepared by VENDOR, whether finished or unfinished, shall become the property of COUNTY and shall be delivered by VENDOR to the Contract Administrator within seven (7) days of termination of this Agreement by either party. Any compensation due to VENDOR shall be withheld until all documents are received as provided herein. VENDOR shall ensure that the requirements of this Section are included in all agreements with its subcontractor(s).

12.2 PUBLIC RECORDS COUNTY is public agency subject to Chapter 119, Florida Statutes. To the extent VENDOR is a contractor acting on behalf of COUNTY pursuant to Section 119.0701, Florida Statutes, VENDOR shall: 12.2.1 Keep an maintain public records that ordinarily and necessarily would be

required to be kept and maintained by COUNTY were COUNTY performing the services under this Agreement;

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12.2.2 Provide the public with access to such public records on the same terms and conditions that COUNTY would provide the records and at a cost that does not exceed that provided in Chapter 119, Florida Statutes, or as otherwise provided by law;

12.2.3 Ensure that public records that are exempt or that are confidential and

exempt from public record requirements are not disclosed except as authorized by law; and

12.2.4 Meet all requirement for retaining public records and transfer to COUNTY,

at no cost, all public records in possession of VENDOR upon termination of this Agreement and destroy any duplicate public records that are exempt or confidential and exempt. All records stored electronically must be provided to COUNTY in a format that is compatible with the information technology systems of COUNTY.

The failure of VENDOR to comply with the provisions set forth in this Section shall constitute a default and breach of this Agreement and COUNTY shall enforce the default in accordance with the provisions set forth Section 7.1. VENDOR shall ensure that the requirements of this Section are included in all agreements with its subcontractor(s). 12.3 AUDIT RIGHT AND RETENTION OF RECORDS COUNTY shall have the right to audit the books, records, and accounts of

VENDOR and its subcontractors that are related to this Agreement. VENDOR and its subcontractors shall keep such books, records, and accounts as may be necessary in order to record complete and correct entries related to this Agreement and performance thereunder. All books, records, and accounts of VENDOR and its subcontractors shall be kept in written form, or in a form capable of conversion into written form within a reasonable time, and upon request to do so, VENDOR or its subcontractor, as applicable, shall make same available at no cost to COUNTY in written form.

VENDOR and its subcontractors shall preserve and make available, at reasonable times within Broward County for examination and audit by COUNTY all financial records, supporting documents, statistical records, and any other documents pertinent to this Agreement for a minimum period of three (3) years after expiration or termination of this Agreement, until resolution of any audit findings, or the period set forth in any other applicable state and/or federal law, including but not limited to HIPAA, whichever is longer the time. If any audit has been initiated and audit findings have not been resolved at the end of the retention period or three (3) years, whichever is longer, the books, records, and accounts shall be retained until resolution of the audit findings. If the Florida Public Records Act is determined to be applicable to VENDOR's and its subcontractors’ records, VENDOR and its subcontractors shall comply with all requirements thereof; however, no confidentiality or non-disclosure requirement of either federal or state law shall be

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violated by VENDOR or its subcontractors. Any incomplete or incorrect entry in such books, records, and accounts shall be a basis for COUNTY's disallowance and recovery of any payment upon such entry. COUNTY audits and inspections pursuant to this Section may be performed by any COUNTY representative (including any outside representative engaged by COUNTY). COUNTY reserves the right to conduct such audit or review at VENDOR’s place of business, if deemed appropriate by COUNTY, with seventy-two (72) hours’ advance notice. Any incomplete or incorrect entry in such books, records, and accounts shall be a basis for COUNTY's disallowance and recovery of any payment upon such entry. If an audit or inspection in accordance with this Section discloses overpricing or overcharges to COUNTY of any nature by VENDOR in excess of five percent (5%) of the total contract billings reviewed by COUNTY, the reasonable actual cost of the COUNTY’s audit shall be reimbursed to COUNTY by VENDOR in addition to making adjustments for the overcharges. Any adjustments and/or payments due as a result of such audit or inspection shall be made within thirty (30) days from presentation of COUNTY's findings to VENDOR. VENDOR shall ensure that the requirements of this Section are included in all agreements with its subcontractor(s).

12.4 PUBLIC ENTITY CRIME ACT

VENDOR represents that the execution of this Agreement will not violate the Public Entity Crime Act, Section 287.133, Florida Statutes, as may be amended from time to time, which essentially provides that a person or affiliate who is a contractor, consultant, or other provider and who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to COUNTY, may not submit a bid on a contract with COUNTY for the construction or repair of a public building or public work, may not submit bids on leases of real property to COUNTY, may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with COUNTY, and may not transact any business with COUNTY in excess of the threshold amount provided in Section 287.017, Florida Statutes, as may be amended from time to time, for category two purchases for a period of thirty-six (36) months from the date of being placed on the convicted vendor list. Violation of this section shall result in termination of this Agreement and recovery of all monies paid by COUNTY pursuant to this Agreement, and may result in debarment from COUNTY’s competitive procurement activities.

In addition to the foregoing, VENDOR further represents that there has been no determination, based on an audit, that it committed an act defined by Section 287.133, Florida Statutes, as a “public entity crime” and that it has not been formally charged with committing an act defined as a "public entity crime"

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regardless of the amount of money involved or whether VENDOR has been placed on the convicted vendor list.

12.5 INDEPENDENT CONTRACTOR

VENDOR is an independent contractor under this Agreement. Services provided by VENDOR pursuant to this Agreement shall be subject to the supervision of VENDOR. In providing such services, neither VENDOR nor its agents shall be officers, employees, or agents of COUNTY. No partnership, joint venture, or other joint relationship is created hereby. COUNTY does not extend to VENDOR or VENDOR's agents any authority of any kind to bind COUNTY in any respect whatsoever.

12.6 THIRD PARTY BENEFICIARIES Neither VENDOR nor COUNTY intends to directly or substantially benefit a third party by this Agreement. Therefore, the parties agree that there are no third party beneficiaries to this Agreement and that no third party shall be entitled to assert a claim against either of them based upon this Agreement.

12.7 ASSIGNMENT AND PERFORMANCE

Neither this Agreement nor any right or interest herein shall be assigned, transferred, or encumbered without the written consent of the other party. COUNTY may terminate this Agreement, effective immediately, if there is any assignment, or attempted assignment, transfer, or encumbrance, by VENDOR of this Agreement or any right or interest herein without COUNTY's written consent. VENDOR represents that each person who will render services pursuant to this Agreement is duly qualified to perform such services by all appropriate governmental authorities, where required, and that each such person is reasonably experienced and skilled in the area(s) for which he or she will render his or her services.

VENDOR shall perform its duties, obligations, and services under this Agreement in a skillful and respectable manner. The quality of VENDOR’s performance and all interim and final product(s) provided to or on behalf of COUNTY shall be comparable to the best local and national standards.

12.8 CONFLICTS VENDOR agrees that no employee or principal, in the course and scope of their

employment or relationship with VENDOR, shall, during the term of this Agreement, serve as an expert witness, or an adverse or hostile witness, against COUNTY in any legal or administrative proceeding, unless a party to such action is compelled to give testimony by court process. Further, VENDOR agrees that

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neither VENDOR, any principal, employee, nor agent shall give sworn testimony or issue a report or writing as an expression of his or her opinion which is adverse or prejudicial to the interests of COUNTY in connection with any such pending or threatened legal or administrative proceeding. The limitations of this section shall not preclude VENDOR or any other persons from representing themselves in any action or in any administrative or legal proceeding.

VENDOR agrees that neither VENDOR, its principals, nor its employees shall have

or hold any contractual or employment relationship with any of COUNTY's fringe benefit providers or any other entities competing to provide fringe benefits or related services to COUNTY or its employees in relation to COUNTY's employees benefits programs, have a material interest in such providers or entities during the term of this Agreement, including any renewal periods, or have a continuing or frequently recurring employment or contractual relationship that is substantially antagonistic or incompatible with VENDOR’s loyal and conscientious exercise of judgment related to its performance under this Agreement.

VENDOR agrees that neither VENDOR, nor its principals or employees, shall

receive any fees, commissions or other compensation from any of the COUNTY's fringe benefit providers or any other entities competing to provide fringe benefits or related services to COUNTY or its employees in relation to the COUNTY's employee benefits programs.

In the event VENDOR utilizes subcontractors to perform any services required by

this Agreement, VENDOR shall require such subcontractors, by written contract, to comply with the provisions of this section to the same extent as VENDOR.

12.9 MATERIALITY AND WAIVER OF BREACH COUNTY and VENDOR agree that each requirement, duty, and obligation set forth

herein was bargained for at arm’s length and is agreed to by the parties. Each requirement, duty, and obligation set forth herein is substantial and important to the formation of this Agreement and each is, therefore, a material term hereof.

COUNTY's failure to enforce any provision of this Agreement shall not be deemed

a waiver of such provision or modification of this Agreement. A waiver of any breach of a provision of this Agreement shall not be deemed a waiver of any subsequent breach and shall not be construed to be a modification of the terms of this Agreement.

12.10 COMPLIANCE WITH LAWS

VENDOR shall comply with all applicable federal, state, and local laws, codes, ordinances, rules, and regulations in performing its duties, responsibilities, and obligations pursuant to this Agreement. In the event any of the terms of this Agreement are inconsistent with such laws, codes, ordinances, rules, and

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regulations, this Agreement shall be construed to operate in conformity with the requirements of such laws, codes, ordinances, rules, and regulations.

12.11 HIPAA COMPLIANCE

It is expressly understood by the parties that COUNTY personnel and/or their agents have access to protected health information (hereinafter known as "PHI") that is subject to the requirements of 45 CFR §§ 160, 162 and 164 and related regulations. In the event VENDOR is required to comply with the Health Insurance Portability and Accountability Act of 1996 (hereinafter known as "HIPAA"), VENDOR shall fully protect individually identifiable health information as required by HIPAA and, if requested by COUNTY, shall execute a Business Associate Agreement for the purpose of complying with HIPAA. Where required, VENDOR shall handle and secure such PHI in compliance with HIPAA and its related regulations and, if required by HIPAA or other laws, include in its "Notice of Privacy Practices" notice of VENDOR's and COUNTY's uses of client's PHI. The requirement to comply with this provision and HIPAA shall survive the expiration or earlier termination of this Agreement. COUNTY hereby authorizes the County Administrator to sign Business Associate Agreements on its behalf.

12.12 DRUG-FREE WORKPLACE

It is a requirement of COUNTY that it enter into contracts only with firms that certify the establishment of a drug-free workplace in accordance with Chapter 21.31(a)(2) of the Broward County Procurement Code. Execution of this Agreement by VENDOR shall serve as VENDOR’s required certification that it either has established or that it will establish a drug-free workplace in accordance with Section 287.087, Florida Statutes, as may be amended from time to time, and Chapter 21.31(a)(2) of the Broward County Procurement Code, as may be amended from time to time.

12.13 DOMESTIC PARTNERSHIP REQUIREMENT

VENDOR certifies and represents that it will comply with COUNTY's Domestic Partnership Act (Section 16½-157 of the Broward County Code of Ordinances, as amended) during the entire term of the Agreement. The failure of VENDOR to comply shall be a material breach of the Agreement, entitling COUNTY to pursue any and all remedies provided under applicable law, or under Section 16½-157, including, but not limited to (1) retaining all monies due or to become due VENDOR until VENDOR complies; (2) termination of the Agreement; (3) and suspension or debarment of VENDOR from doing business with COUNTY. For that purpose, the contract language referenced in Section 16½ -157 is incorporated herein as though fully set forth in this paragraph.

12.14 SEVERANCE

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In the event a portion of this Agreement is found by a court of competent jurisdiction or, if applicable, by a state regulatory agency with jurisdiction over such matters to be invalid, illegal, or unenforceable in any respect, the remaining provisions shall continue to be effective unless COUNTY or VENDOR elects to terminate this Agreement. An election to terminate this Agreement based upon this provision shall be made within seven (7) days after the finding by the court or state regulatory agency becomes final.

12.15 JOINT PREPARATION

Each party and its counsel have participated fully in the review and revision of this Agreement and acknowledge that the preparation of this Agreement has been their joint effort. The language agreed to expresses their mutual intent and the resulting document shall not, solely as a matter of judicial construction, be construed more severely against one of the parties than the other. The language in this Agreement shall be interpreted as to its fair meaning and not strictly for or against any party.

12.16 REPRESENTATION OF AUTHORITY

Each individual executing this Agreement on behalf of a party hereto hereby represents and warrants that he or she is, on the date he or she signs this Agreement, duly authorized by all necessary and appropriate action to execute this Agreement on behalf of such party and does so with full legal authority.

12.17 PRIORITY OF PROVISIONS

If there is a conflict or inconsistency between any term, statement, requirement, or provision of any exhibit attached hereto, any document or events referred to herein, or any document incorporated into this Agreement by reference and a term, statement, requirement, or provision of Articles 1 through 12 of this Agreement, the term, statement, requirement, or provision contained in Articles 1 through 12 shall prevail and be given effect.

12.18 JURISDICTION, VENUE, GOVERNING LAW, AND WAIVER OF JURY TRIAL

This Agreement shall be interpreted and construed in accordance with and governed by the laws of the State of Florida and when applicable, federal law. All parties agree and accept that jurisdiction of any controversies or legal problems arising out of this Agreement and any action involving the enforcement or interpretation of any rights hereunder, shall be in the state courts of the Seventeenth Judicial Circuit in Broward County, Florida or in the United States District Court, Southern District of Florida, and venue for litigation arising out of this Agreement shall be in such courts, forsaking any other jurisdiction which either party may claim by virtue of its residency or other jurisdictional device. BY ENTERING INTO THIS AGREEMENT, VENDOR AND COUNTY HEREBY

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EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, ARISING FROM, OR IN CONNECTION WITH THIS AGREEMENT. IF A PARTY FAILS TO WITHDRAW A REQUEST FOR A JURY TRIAL IN A LAWSUIT ARISING OUT THIS AGREEMENT AFTER WRITTEN NOTICE BY THE OTHER PARTY OF VIOLATION OF THIS SECTION, THE PARTY MAKING THE REQUEST FOR JURY TRIAL SHALL BE LIABLE FOR THE REASONABLE ATTORNEYS’ FEES AND COSTS OF THE OTHER PARTY IN CONTESTING THE REQUEST FOR JURY TRIAL, AND SUCH AMOUNTS SHALL BE AWARDED BY THE COURT IN ADJUDICATING THE MOTION.

12.19 AMENDMENTS

The Parties may amend this Agreement to conform to changes in federal, state, or local laws, regulations, directives, and objectives. No modification, amendment, or alteration of the terms or conditions contained herein shall be effective unless contained in a written document prepared with the same or similar formality as this Agreement and executed by the COUNTY and VENDOR or others delegated authority to or otherwise authorized to execute same on their behalf.

12.20 PRIOR AGREEMENTS

This document represents the final and complete understanding of the Parties and incorporates or supersedes all prior negotiations, correspondence, conversations, agreements, and understandings applicable to the matters contained herein. There is no commitment, agreement, or understanding concerning the subject matter of this Agreement that is not contained in this written document. Accordingly, no deviation from the terms hereof shall be predicated upon any prior representations or agreements, whether oral or written.

12.21 PAYABLE INTEREST

12.21.1 Payment of Interest. Except as required by the Broward County Prompt Payment Ordinance, COUNTY shall not be liable for interest for any reason, whether as prejudgment interest or for any other purpose, and in furtherance thereof VENDOR waives, rejects, disclaims and surrenders any and all entitlement it has or may have to receive interest in connection with a dispute or claim based on or related to this Agreement.

12.21.2 Rate of Interest. In any instance where the prohibition or limitations

of Section 12.21.1 are determined to be invalid or unenforceable, the annual rate of interest payable by COUNTY under this Agreement, whether as prejudgment interest or for any other purpose, shall be .025 percent simple interest (uncompounded).

12.22 CONTINGENCY FEE

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VENDOR warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for VENDOR, to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual or firm, other than a bona fide employee working solely for VENDOR, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For a breach or violation of this provision, COUNTY shall have the right, at its discretion, to terminate this Agreement without liability, or to deduct from this Agreement price or otherwise recover the full amount of such fee, commission, percentage, gift, or consideration.

12.23 ADDITIONAL SERVICES AND CHANGES IN SCOPE OF SERVICES

COUNTY or VENDOR may request changes that would increase, decrease, or otherwise modify the Scope of Services to be provided under Article 2 of this Agreement entitled “Scope of Services/Selected Policies and Benefits. Such changes must be contained in a written amendment, prepared and executed consistent with Article 12.19 of this Agreement entitled “Amendments,” prior to any deviation from the terms of this Agreement, including the initiation of any additional services. COUNTY shall compensate VENDOR for such additional services as mutually agreed to by the parties.

12.24 LEGISLATIVE, REGULATORY, OR ADMINISTRATIVE CHANGE In the event there shall be a change in the relevant federal or state statutes or

regulations, the adoption of new federal or state legislation, or a change in any reimbursement system, any of which are reasonably likely to materially and adversely affect the manner in which either party may perform under this Agreement or which shall make this Agreement unlawful, the parties shall immediately enter into good faith negotiations regarding a new service agreement that complies with the law, regulation or policy and that approximates as closely as possible the position of the parties prior to the change.

12.25 INCORPORATION BY REFERENCE

The truth and accuracy of each “Whereas” clause set forth above is acknowledged by the parties. Exhibits “A,” entitled “Scope of Services”, Exhibit “B,” entitled “Fees/Discounts,” Exhibit “C,” entitled "Performance Standards,” Exhibit “D,” entitled “Sample Invoice,” Exhibits “E,” entitled “Business Associate Addendum to Agreement,” Exhibit “F,” entitled “Formulary and Specialty Pharmacy Drug List,” and Exhibit “G,” entitled “Certificate of Liability,” attached hereto and referenced throughout this Agreement, are incorporated into and made part of this Agreement.

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12.26 MULTIPLE ORIGINALS

Multiple copies of this Agreement may be executed by all parties, each of which, bearing original signatures, shall have the force and effect of an original document.

12.27 VENDOR REPRESENTATIONS AND WARRANTIES

VENDOR warrants and guarantees unto COUNTY the following: 12.27.1 Neither VENDOR nor any officer, stockholder, director, or employee

of VENDOR, nor any affiliate of VENDOR (hereinafter collectively referred to as FBMC), is subject to any present or past litigation or administrative proceeding of or before any court or administrative body which would have a materially adverse effect on VENDOR, or its ability to discharge its responsibilities under this Agreement, or which would impair the ability of VENDOR to act as a fiduciary, nor, to its knowledge, is any such litigation or proceeding presently threatened against any of them or their property.

12.27.2 VENDOR is presently in compliance with all existing laws and regulations, a violation of which would or could materially adversely affect VENDOR’s operations or would or could materially adversely affect its ability to fulfill its obligations and undertakings set forth in this Agreement.

12.27.3 VENDOR is in good standing with the State of Florida and all

departments and agencies thereof, and is appropriately licensed under the laws of the State of Florida to perform all obligations imposed upon VENDOR under this Agreement, including functioning as a third party contract administrator. VENDOR warrants and guaranties that it is properly licensed and authorized to do business in Broward County as required by the laws of the State of Florida, and the administrative rules and regulations.

12.27.4 VENDOR has and shall maintain the capability to adequately carry

out the record keeping and reporting requirements of the Plan including access to the necessary computer and data retention equipment needed to provide such record keeping and reporting.

12.27.5 The officer who signs this Agreement on VENDOR’s behalf, his or

her name and signature appearing on the signature page corresponding to VENDOR hereto, has full power and authority to execute this Agreement, and such officer’s execution and VENDOR’s performance of the Agreement is a valid and binding obligation of VENDOR which does not conflict with VENDOR’s respective articles of incorporation, by-laws, or any other

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Agreements to which VENDOR is bound.

12.27.6 All employee records, accounts and information therein regarding the VENDOR shall be the property of COUNTY and VENDOR shall not sell, provide, or in any way disseminate such information without the prior written consent of COUNTY.

12.28 ESCHEATMENT The State of Florida requires escheatment of unclaimed moneys which, as it

pertains to this Agreement, would be represented by uncashed checks unprocessed by the Participants within the statutory time period relative to their participation in the Plan. VENDOR shall provide an accounting of such checks to COUNTY, in a format acceptable to State standards, within one hundred eighty (180) days after the close of the Plan Year. Upon receipt of such accounting, COUNTY shall require VENDOR to take all necessary steps to comply with the State of Florida’s escheatment procedures.

12.29 USE OF COUNTY LOGO. VENDOR shall not use COUNTY’s name, logo, or otherwise refer to this

Agreement in any marketing or publicity materials without the prior written consent of COUNTY.

12.30 TRUTH-IN-NEGOTIATION REPRESENTATION. VENDOR's compensation under this Agreement is based upon representations

supplied to COUNTY by VENDOR, and VENDOR certifies that the information supplied, including without limitation in the negotiation of this Agreement, is accurate, complete, and current at the time of contracting. COUNTY shall be entitled to recover any damages it incurs to the extent such representation is untrue.

(The remainder of this page is intentionally left blank.)

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IN WITNESS WHEREOF, the parties have made and executed this Agreement on the respective dates under each signature: BROWARD COUNTY through its BOARD OF COUNTY COMMISSIONERS, signing by and through its Mayor or Vice-Mayor, authorized to execute same by Board action on the ____ day of ____________, 20__, and THIRD PARTY ADMINISTRATOR signing by and through its _________________ on the ____ day of __________, 20__,

COUNTY ATTEST: BROWARD COUNTY, through its

BOARD OF COUNTY COMMISSIONERS

________________________ BY_______________________________ Broward County Administrator, as Mayor Ex-Officio Clerk of the Board of County Commissioners of Broward County, Florida____ day of ___________, 20__.

Approved as to form by Joni Armstrong Coffey Broward County Attorney Governmental Center, Suite #423 115 South Andrews Avenue

Insurance requirements Fort Lauderdale, Florida 33301 approved by Broward County Telephone: (954) 357-7600 Risk Management Division Telecopier: (954) 357-7641 By_____________________________ By____________________________

Tricia D. Brissett (Date) _____________________________ Assistant County Attorney Print Name and Title above

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AGREEMENT BETWEEN BROWARD COUNTY AND [CORPORATE NAME OF VENDOR] FOR PHARMACY BENEFIT MANAGEMENT SERVICES

VENDOR [CORPORATE NAME OF VENDOR] WITNESSES:

By____________________________ ____________________________ , President Signature ____________________________ Print Name and Title ____ day of ______________, 20___ ____________________________ Signature ____________________________ Print Name and Title

(SEAL)

EXHIBIT “A”

SCOPE OF SERVICES

[To be determined; subject to negotiations]

EXHIBIT “B”

FEES/DISCOUNTS

[To be determined; subject to negotiations]

EXHIBIT “C”

PERFORMANCE STANDARDS

[To be determined; subject to negotiations]

EXHIBIT “D”

SAMPLE INVOICE

[To be determined; subject to negotiations]

EXHIBIT “E”

BUSINESS ASSOCIATE ADDENDUM TO AGREEMENT

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BUSINESS ASSOCIATE AGREEMENT BETWEEN BROWARD COUNTY, FLORIDA AND BENEFITS OUTSOURCE, INC.

This BUSINESS ASSOCIATE AGREEMENT ("BAA") is entered into by and

between Broward County, Florida ("County"), and _____________________________., a ___________________________ authorized to do business in the State of Florida with its principal office located at __________________________________________________ ("Business Associate") in connection with the Agreement __________________________________________, RFP # R1412304P1 (the "Agreement").

RECITALS

1. Business Associate provides services related to the operation of certain

activities/programs that involve the use or disclosure of Protected Health Information (“PHI”);

2. The operation of such activities/programs is subject to the federal Health Insurance Portability and Accountability Act of 1996 ("HIPAA") and the Health Information Technology for Economic and Clinical Health Act (“HITECH”);

3. HIPAA and HITECH mandate that certain responsibilities of contractors with

access to PHI be documented through a written agreement; and 4. The County and Business Associate desire to comply with the requirements of

HIPAA and HITECH and acknowledge their respective responsibilities. NOW, THEREFORE, for good and valuable consideration, the receipt and

sufficiency of which are hereby acknowledged, the parties agree as follows: Section 1: Definitions 1.1 All terms used in this BAA not otherwise defined herein shall have the meanings

stated in the Privacy and Security Rules, 45 CFR Parts 160, 162, 164, and 42 U.S.C. § 17921.

1.2 “HIPAA Laws” mean collectively HIPAA, HITECH, 42 CFR Part 2 (if applicable),

and the related regulations and amendments. 1.3 When the term “PHI” is used in this BAA, it includes the term “Electronic Protected

Health Information” or “EPHI.”

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1.4 Penalties as used in Section 3.18 below are defined as civil penalties that may be applied to the Business Associate and its workforce members by the Secretary of Health and Human Services (HHS). The amount of the penalties range depending on the type of violation. In determining penalties, the Secretary may take into account:

a. the nature and extent of the violation;

b. the nature and extent of harm resulting from such violation;

c. the degree of culpability of the covered entity or business associate;

d. the history of prior compliance with the administrative simplification provision

including violations by the covered entity or business associate;

e. the financial condition of the covered entity or business associate, and

f. such other matters as justice may require.

Section 2: Confidentiality 2.1 County and Business Associate shall comply with all federal and state laws

governing the privacy and security of PHI.

2.2 ☐ If this box is checked, the County and Business Associate are required to

comply with 42 CFR Part 2 with respect to patient identifying information concerning alcohol and substance abuse treatment.

Section 3: Obligations and Activities of the Business Associate Use and Disclosure of PHI 3.1 The Business Associate shall not use or disclose PHI other than as permitted or

required by this BAA or as required by law. Business Associate may:

a. Use and disclose PHI only as necessary to perform its obligations under the

Agreement, provided that such use or disclosure would not violate HIPAA

Laws if done by the County;

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b. Use the PHI received in its capacity as a Business Associate of the County

for its proper management and administration and to fulfill any legal

responsibilities of Business Associate;

c. Disclose PHI in its possession to a third party for the proper management

and administration of Business Associate, or to fulfill any legal

responsibilities of Business Associate, provided that the disclosure would

not violate HIPAA Laws if made by the County, or is required by law, and

Business Associate has received from the third party written assurances

that (i) the information will be kept confidential and used or further disclosed

only for the purposes for which it was disclosed to the third party or as

required by law; (ii) the third party will notify Business Associate of any

instances of which it becomes aware in which the confidentiality of the

information may have been breached; and (iii) the third party has agreed to

implement reasonable and appropriate steps to safeguard the information;

d. Use PHI to provide data aggregation activities relating to the operations of

the County; and

e. De-identify any and all PHI created or received by Business Associate

under the Agreement, provided that the de-identification conforms to the

requirements of the HIPAA Laws.

3.2 Business Associate shall limit its use and disclosure of, and request for PHI when

practical or as required by law, to the information making up a Limited Data Set, as defined by HIPAA, and in all other cases subject to the requirements of 45 CFR 164.502(b), to the minimum amount of PHI necessary to accomplish the intended purpose of the use, disclosure, or request.

3.3 Business Associate is prohibited from selling PHI, using PHI for marketing

purposes, or attempting to re-identify any PHI information in violation of HIPAA Laws.

Administrative, Physical, and Technical Safeguards 3.4 Business Associate shall implement administrative, physical, and technical

safeguards that protect the confidentiality, integrity and availability of PHI that it creates, receives, maintains, or transmits on behalf of the County. The safeguards shall include written policies, procedures, a security risk assessment, training of Business Associate employees, and sanctions that are in compliance with HIPAA

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Laws. 3.5 Business Associate shall require all of its subcontractors, agents, and other third

parties that receive, use, transmit, maintain, store, or have access to PHI to agree, in writing, to the same restrictions and conditions that apply to Business Associate pursuant to this BAA, including implementation of administrative, physical, and technical safeguards.

Access of Information; Amendment of Information; Accounting of Disclosures 3.6 Business Associate shall make available to the County all PHI in Designated

Record Sets within ten (10) days of the County's request for the County to meet the requirements under 45 CFR § 164.524.

3.7 Business Associate shall make any amendments to PHI in a Designated Record

Set as directed or agreed to by the County pursuant to 45 CFR § 164.526 in the time and manner reasonably designated by the County.

3.8 Business Associate shall timely document such disclosures of PHI and information

related to such disclosures as would be required for the County to respond to an individual for an accounting of disclosures of PHI in accordance with 45 CFR § 164.528. Further, Business Associate shall provide to the County an accounting of all disclosure of PHI during the term of this BAA within ten (10) days of termination of this BAA, or sooner if reasonably requested by the County for purposes of any monitoring/auditing of the County for compliance with HIPAA Laws.

3.9 Business Associate shall provide the County, or an individual under procedures

approved by the County, information and documentation collected in accordance with the preceding paragraph to respond to an individual requesting an accounting for disclosures as provided under 45 CFR § 164.528 and HIPAA Laws.

Mitigation

3.10 Business Associate shall mitigate, to the extent possible and at its own expense,

any harmful effect that is known to Business Associate of a use or disclosure of PHI by the Business Associate in violation of the requirements of this BAA or applicable law.

3.11 Business Associate shall take appropriate disciplinary action against any members

of its workforce who use or disclose PHI in any manner not authorized by this BAA or applicable law.

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Reporting of Breaches and Mitigation of Breach 3.12 Business Associate shall notify the County's HIPAA Privacy Official at (954) 357-

6500 of any impermissible access, acquisition, use or disclosure of any unsecured PHI within twenty-four (24) hours of Business Associate becoming aware of such access, acquisition, use or disclosure. Unsecured PHI shall refer to such PHI that is not secured through use of a technology or methodology specified by the Secretary of HHS that renders such PHI unusable, unreadable, or indecipherable to unauthorized individuals. A breach of unsecured PHI shall be treated as discovered by Business Associate as of the first day on which such breach is known to the Business Associate or, by exercising reasonable diligence, would have been known to Business Associate, including any employee, officer, contractor, subcontractor, or other agent of Business Associate.

3.13 Business Associate shall submit a written report of a breach to the County within

ten (10) business days after initial notification, and shall document the following:

a. The identification of each individual whose PHI has been, or is reasonably

believed by Business Associate, to have been accessed, acquired, used, or

disclosed during the breach;

b. A brief description of what occurred, including the date of the breach and the

date of the discovery of the breach, if known;

c. A description of the types of PHI that are involved in the breach (such as full

name, social security number, date of birth, home address, account number,

diagnosis, etc.)

d. A description of what is being done to investigate the breach, to mitigate harm

to individuals, and the reasonable and appropriate safeguards being taken to

protect against future breaches;

e. Any steps the County or the individual impacted by the breach should take to

protect himself or herself from potential harm resulting from the breach;

f. Contact procedures for the Business Associate to enable individuals to ask

questions or learn additional information, which may include, in the discretion

of the County, a toll-free telephone number, e-mail address, website, or postal

address, depending upon the available contact information that the Business

Associate has for the affected individuals; and

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g. Any other reasonable information requested by the County.

3.14 In the event of a breach, Business Associate shall, in consultation with and at the direction of the County, assist the County in conducting a risk assessment of the breach and mitigate, to the extent practicable, any harmful effect of such breach known to Business Associate.

3.15 The County, in its sole discretion, will determine whether the County or Business

Associate shall be responsible to provide notification to individuals whose unsecured PHI has been disclosed, as well as to the Secretary of HHS and the media.

a. Notification will be by first-class mail, or by electronic mail, if the individual has

specified notice in the manner as a preference.

b. Information may be posted on the County and Business Associate’s website

where the Business Associate experienced, or is reasonably believed to have

experienced, an impermissible use or disclosure of unsecured PHI that

compromised the security or privacy of more than ten (10) individuals when no

other current information is available to inform such individuals.

c. Notice shall be provided to prominent media outlets with information on an

incident where the Business Associate experienced an impermissible use and

disclosure of unsecured PHI that compromised the security or privacy of more

than five hundred (500) individuals within the same state or jurisdiction during

the incident.

d. The County may report, at least annually, any impermissible use and disclosure

of unsecured PHI by the Business Associate to the Secretary of HHS as

required by HIPAA Laws.

3.16 Business Associate agrees to pay the costs for notification to the County,

individuals, and their representatives of any security or privacy breach that should be reported by Business Associate to the County. Business Associate also agrees to pay the costs for mitigating damages, including, but not limited to, the expenses for credit monitoring, if the County determines that the breach warrants such measures.

3.17 Business Associate agrees to have established procedures to investigate a

breach, mitigate losses, and protect against any future breaches, and to provide

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such procedures and any specific findings of the investigation to the County in the time and manner reasonably requested by the County.

3.18 Business Associate is liable to the County for any civil penalties imposed on the

County under the HIPAA laws in the event of a violation of the HIPAA Laws as a result of any practice, behavior, or conduct of Business Associate.

Available Books and Records 3.19 Business Associate shall make its internal practices and books, related to the

Agreement and the BAA, including all policies and procedures required by HIPAA Laws, available to the County Contract Grants Administrator within five (5) business days of the Agreement.

3.20 Business Associate shall make its internal practices, books, and records, including

all policies and procedures required by HIPAA Laws and PHI, relating to the use and disclosure of PHI received from the County or created or received on behalf of the County available to the County or to the Secretary of HHS or its designee within five (5) business days of request for the purposes of determining the Business Associate's compliance with HIPAA Laws.

Section 4: Obligations of the County 4.1 The County shall notify Business Associate of any limitations in its notice of privacy

practices in accordance with 45 CFR § 164.520, to the extent that such limitation may affect the Business Associate's use of PHI.

4.2 The County shall notify Business Associate of any changes in, or revocation of,

permission by an individual to use or disclose PHI, to the extent that such changes may affect Business Associate's use of PHI.

4.3 The County shall notify Business Associate of any restriction to the use or

disclosure of PHI to which the County has agreed in accordance with 45 CFR § 164.522, to the extent that such changes may affect Business Associate's use of PHI.

4.4 The County shall not request Business Associate to use or disclose PHI in any

manner that would not be permissible under the HIPAA Laws if done by the County.

Section 5: Term and Termination

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Term 5.1 The term of this BAA shall be effective upon execution by all Parties, and shall

terminate upon the latter of termination or expiration of the Agreement, or the return or destruction of all PHI within the possession or control of the Business Associate as a result of the Agreement.

Termination 5.2 Upon the County's knowledge of a material breach of this BAA by Business

Associate, the County shall either:

a. Provide an opportunity for Business Associate to cure the breach or terminate this BAA and the Agreement if the Business Associate does not cure the breach within the time specified by the County;

b. Immediately terminate this BAA and the Agreement if Business Associate

has breached a material term of this BAA and a cure is not possible; or

c. If neither termination nor cure is feasible, the County's HIPAA Privacy Official shall report the violation to the Secretary of HHS.

Effect of Termination

5.3 Upon completion or termination of the Agreement, Business Associate agrees, at

County’s option, to return to the County or destroy all PHI gathered, created, received or processed pursuant to the Agreement. No PHI related to the Agreement will be retained by Business Associate, or a contractor, subcontractor, or other agent of Business Associate, unless retention is required by law and specifically permitted in writing by the County.

5.4 In the event that returning or destroying PHI is infeasible, Business Associate shall

provide to the County a written statement that it is infeasible to return or destroy the PHI and describe the conditions that make return or destruction of the PHI infeasible. Under that circumstance, Business Associate shall extend the protections of this BAA to the PHI retained and limit further uses and disclosures of such PHI to those purposes that make return or destruction infeasible, for so long as Business Associate maintains the PHI, in which case Business Associate’s obligations under this Section shall survive termination of this BAA.

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Section 6: Miscellaneous 6.1 Amendment. The County and Business Associate shall take such action as is

necessary to amend this BAA for the County to comply with the requirements of HIPAA Laws or other applicable law.

6.2 Interpretation. Any ambiguity in this BAA shall be resolved to permit the County to comply with HIPAA Laws.

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BUSINESS ASSOCIATE AGREEMENT TO EXISTING AGREEMENT BETWEEN BROWARD COUNTY, FLORIDA AND BUSINESS ASSOCIATE, ENUMERATING THE RESPONSIBILITIES OF EACH REGARDING COMPLIANCE WITH HIPAA LAWS. WHEREAS, the parties have made and executed this Business Associate Agreement between BROWARD COUNTY and BUSINESS ASSOCIATE, on the respective dates under each signature: BROWARD COUNTY through its County Administrator, authorized to execute same, and BUSINESS ASSOCIATE signing by and through its ______________________________, duly authorized to execute same.

COUNTY BROWARD COUNTY, through its County Administrator BY________________________ ____ day of ___________, 20__. Approved as to form by Office of the County Attorney Broward County, Florida Joni Armstrong Coffey,

County Attorney Governmental Center, Suite #423 115 South Andrews Avenue Fort Lauderdale, Florida 33301 Telephone: (954) 357-7600 Telecopier: (954) 357-7641 By______________________________ Tricia D. Brissett (Date)

Assistant County Attorney

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BUSINESS ASSOCIATE BUSINESS ASSOCIATE By:_____________________________

Print ____________________________ Title:____________________________

____ day of ___________, 20___. STATE OF _________ )

) SS COUNTY OF _________ )

The foregoing instrument was acknowledged before me this day of ___________, 20___, by _________________________, as _____________________, of the ________________________________________________, who is personally known to me or who has produced ____________________ as identification.

___________________________________ Print Name: Notary Public, State of Commission No.

Commission Expires:

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EXHIBIT “F”

FORMULARY AND SPECIALTY PHARMACY DRUG LIST

[To be determined; subject to negotiations]

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EXHIBIT “G”

CERTIFICATE OF LIABILITY INSURANCE

[To be provided in accordance with Insurance Requirements stated in the RFP (Attachments) issued by Broward County Risk Management Division]