R23-175 1 RESOLUTION NO. R23-175
2
3
4 A RESOLUTION OF THE CITY OF BOYNTON BEACH, FLORIDA,
5 APPROVING THE USE OF VOLUSIA COUNTY, FLORIDA, RFP NO. 22-P-
6 58BB AND AUTHORIZE THE CITY MANAGER TO SIGN AN AGREEMENT
7 WITH COMMERCIAL RISK MANAGEMENT, INC., FOR PROFESSIONAL
8 WORKERS COMPENSATION THIRD PARTY ADMINISTRATION SERVICES
9 WITH AN ESTIMATED ANNUAL COST OF $1,130,000; AND PROVIDING
10 AN EFFECTIVE DATE.
11
12
13 WHEREAS, Commercial Risk Management, Inc., was awarded a Professional Workers
14 Compensation Third Party Administration Services agreement from Volusia County, Florida, RFP
15 No. 22-P-58BB; and
16 WHEREAS, the Division of Risk Management is seeking consent to piggyback this
17 contract and establish an agreement with Commercial Risk Management to provide the same
18 services to the City of Boynton Beach at the level of service that is expected; and
19 WHEREAS, approval of this agreement will allow for the City to remain in compliance
20 with our excess insurance carriers that require third party administration of claims; and
21 WHEREAS, the City Commission of the City of Boynton Beach, Florida, deems it to be in
22 the best interests of the citizens and residents of the City of Boynton to approve the piggyback
23 of Volusia County, Florida, RFP No. 22-P-58BB, and authorize the City Manager to sign an
24 Agreement with Commercial Risk Management, Inc., for Professional Workers Compensation
25 Third Party Administration Services with an estimated annual cost of $1,130,000.
26 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF
27 BOYNTON BEACH, FLORIDA, THAT:
28
29 Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as
30 being true and correct and are hereby made a specific part of this Resolution upon adoption
31 hereof.
32 Section 2. The City Commission hereby approves the piggyback of Volusia County,
33 Florida, RFP No. 22-P-58BB, and authorizes the City Manager to sign an Agreement with
S:\CA\RESO\Agreements\Piggy-Back Agreement Commercial Risk Management-Reso-Revised.Docx
34 Commercial Risk Management, Inc., for Professional Workers Compensation Third Party
35 Administration Services with an estimated annual cost of $1,130,000. A copy of the Agreement
36 is attached hereto and incorporated herein as Exhibit "A."
37 Section 3. This Resolution shall become effective immediately upon passage.
38 PASSED AND ADOPTED this 5th day of December, 2023.
39 CITY OF BOYNTON BEACH, FLORIDA
40 YES NO
41
42 Mayor—Ty Penserga ✓
43
44 Vice Mayor— Thomas Turkin ✓
45
46 Commissioner— Angela Cruz ✓
47
48 Commissioner— Woodrow L. Hay V
49
50 Commissioner— Aimee Kelley ✓
51
52 VOTE 6 C7
53 ATTEST:
54
55 , /
56 14MkTeAd'
57 Tammy Stan lone, C C Ty Pe rga
58 Deputy City Clerk Ma r
59 c6pY N TON`‘‘‘
60 . .GpKPORgJe%`.yk�� APPROVED AS TO FORM:
61 -• SEAL _'\;
62(Corporate Seal); ; INCORPORATED; ;
63 it41920 s /14 J. Aint,
64 t��
FLORIOP Shawna G. Lamb
65 `.......
S:\CA\RESO\Agreements\Piggy-Back Agreement Commercial Risk Management-Reso-Revised.Docx
AGREEMENT BETWEEN THE CITY OF BOYNTON BEACH
AND COMMERCIAL RISK MANAGEMENT, INC.
This Agreement is made as of this 21 day of November, 2023 by and between
COMMERCIAL RISK MANAGEMENT, INC. with a principal address of P.O. Box 18366,
Tampa, FL 33679, and THE CITY OF BOYNTON BEACH, a municipal corporation organized
and existing under the laws of Florida,with a business address of 100 East Ocean Avenue,Boynton
Beach, Florida 33435, hereinafter referred to as "City."
RECITALS
WHEREAS, on February 27, 2022, the County of Volusia, a body corporate and politic
and a subdivision of the State of Florida, issued a request for proposal to solicit proposals from
qualified firms with expertise in the provision of Professional Workers' Compensation Third Party
Administration Services for which it received a total of three (3)proposals; and
WHEREAS, the County of Volusia selected COMMERCIAL RISK MANAGEMENT,
INC. ("Vendor") as the most qualified entity with respect to cost, expertise, and relevant
experience to provide the scope of services requested, and awarded it a five (5) year agreement
with one (1) additional five-year renewal option; and
WHEREAS, the City desires similar Professional Workers' Compensation Third Party
Administration Services; and
WHEREAS,the City's Purchasing Policy Section X—Alternatives to Formal Sealed Bids,
provides authority for the City to acquire or contract for services without utilizing a sealed
competitive method or the written quotations methods where the desired services are the subject
of a contract that utilizes another government entity's contract, provided that the contract was
awarded based strictly on competitive bidding; and
WHEREAS, in order to maintain compliance with Workers' Compensation requirements
for the City, the City's Risk Management Division is requesting the City enter into an Agreement
with COMMERCIAL RISK MANAGEMENT, INC. to provide Professional Workers'
Compensation Third Party Administration Services ("Services"); and
WHEREAS, the Vendor has provided the City with a proposal for Services, attached as
Exhibit"A" and
WHEREAS, the City and a member of COMMERCIAL RISK MANAGEMENT, INC.
have agreed to allow the City to piggyback the County of Volusia, Professional Workers
Compensation Third Party Administration Services Agreement pursuant to Contract No. 22-P-
Piggyback Contract—Commercial Risk Management,Inc.
58PW to provide Professional Workers Compensation Third Party Administration Services for a
five (5) year term commencing April 19, 2022 through April 20, 2027 with one (1) optional five-
year renewal, a copy of which is attached as Exhibit "B."
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for
other valuable consideration received, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
AGREEMENT
1. The foregoing recitals are true and correct and are hereby incorporated in this Agreement.
2. TERM: The term of this Agreement commences on December 4, 2023, and will remain in
effect until April 20, 2027, with one (1) optional five-year renewal or upon completion of
the Services, whichever occurs first ("Term"). If the Master Agreement expires or is
terminated during the Term, this Agreement shall terminate six months after such
expiration or termination of the Master Agreement.
3. CONTRACT TERMS: The Vendor agrees to complete the Services, as provided in
Vendor's Proposal attached as Exhibit "A" on the same terms and in the same manner as
set forth in the Master Agreement, except as otherwise provided herein. All recitals,
representations, and warranties of Vendor made by Vendor in the Master Agreement are
restated as if set forth fully herein,made for the benefit of the City,and incorporated herein,
except that all references to the "County of Volusia" are hereby replaced with the "City of
Boynton Beach." The City shall compensate Vendor pursuant to the rates set forth in the
Master Agreement for the Services through April 20, 2027, in an annual not to exceed
$1,130,000.00.
4. NOTICES: All Notices to the City shall be in writing by certified mail return receipt
requested, or customarily used overnight transmission with proof of delivery, sent to:
City: Daniel Dugger, City Manager
City of Boynton Beach
P.O. Box 310
Boynton Beach, Florida 33425
Telephone: (561) 742-6010/Facsimile: (561) 742-6090
Copy: Shawna G. Lamb, City Attorney
City of Boynton Beach
P.O. Box 310
Boynton Beach, Florida 33425
Telephone: (561) 742-6010/Facsimile: (561) 742-6090
5. TAX EXEMPT: Prices applicable to City do not include applicable state and local sales,
use, and related taxes. The City is exempt from state and local sales and use taxes and shall
not be invoiced for the same. Upon request, City will provide Vendor with proof of tax-
exempt status.
Piggyback Contract—Commercial Risk Management,Inc. 2
6. SOVEREIGN IMMUNITY: Nothing contained in this Agreement nor contained herein
shall be considered nor construed to waive City's rights and immunities under the common
law or section 768.28, Florida Statutes, as may be amended.
7. ATTORNEY'S FEES: In the event that either Party brings suit for enforcement of the
Agreement, each Party shall bear its own attorney's fees and court costs.
8. PUBLIC RECORDS: Sealed documents received by the City in response to an invitation
are exempt from public records disclosure until thirty (30) days after the opening of the
Bid unless the City announces intent to award sooner, in accordance with Florida Statutes
119.07.
The City is a public agency subject to Chapter 119, Florida Statutes. The Vendor shall
comply with Florida's Public Records Law. Specifically, the Vendor shall:
A. Keep and maintain public records required by the City to perform the service;
B. Upon request from the City's custodian of public records, provide the City 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, Fla.
Stat. or as otherwise provided by law;
C. Ensure that public records that are exempt or that are confidential and exempt from
public record disclosure requirements are not disclosed except as authorized by law
for the duration of the contract term and, following completion of the contract,
Vendor shall destroy all copies of such confidential and exempt records remaining in
its possession once the Vendor transfers the records in its possession to the City; and
D. Upon completion of the contract, Vendor shall transfer to the City, at no cost to the
City, all public records in Vendor's possession All records stored electronically by
Vendor must be provided to the City,upon request from the City's custodian of public
records, in a format that is compatible with the information technology systems of
the City.
E. IF THE VENDOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO
THE VENDOR'S DUTY TO PROVIDE PUBLIC RECORDS
RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN
OF PUBLIC RECORDS:
CITY CLERK OFFICE
100 E. OCEAN AVENUE
BOYNTON BEACH, FLORIDA, 33435
561-742-6060
CityClerk@bbfl.us
Piggyback Contract—Commercial Risk Management,Inc. 3
9. SCRUTINIZED COMPANIES - 287.135 AND 215.473: By execution of this
Agreement, Vendor certifies that Vendor is not participating in a boycott of Israel. The
Vendor further certifies that Vendor is not on the Scrutinized Companies that Boycott Israel
list, not on the Scrutinized Companies with Activities in Sudan List, and not on the
Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, or has
Vendor been engaged in business operations in Syria. Subject to limited exceptions
provided in state law, the City will not contract for the provision of goods or services with
any scrutinized company referred to above. Submitting a false certification shall be deemed
a material breach of contract. The City shall provide notice, in writing, to the Vendor of
the City's determination concerning the false certification. The Vendor shall have five (5)
days from receipt of notice to refute the false certification allegation. If such false
certification is discovered during the active contract term, the Vendor shall have ninety
(90) days following receipt of the notice to respond in writing and demonstrate that the
determination of false certification was made in error. If the Vendor does not demonstrate
that the City's determination of false certification was made in error, then the City shall
have the right to terminate the contract and seek civil remedies pursuant to Section 287.135,
Florida Statutes, as amended from time to time.
10. E-VERIFY: VENDOR shall comply with Section 448.095, Fla. Stat., "Employment
Eligibility," including the registration and use of the E-Verify system to verify the work
authorization status of employees. Failure to comply with Section 448.095, Fla. Stat. shall
result in termination of this Agreement. Any challenge to termination under this provision
must be filed in the Circuit Court no later than 20 calendar days after the date of
termination. If this Agreement is terminated for a violation of the statute by Vendor,
Vendor may not be awarded a public contract for a period of one (1) year after the date of
termination.
11. DISPUTES: Any disputes that arise between the parties with respect to the performance
of this Agreement, which cannot be resolved through negotiations, shall be submitted to a
court of competent jurisdiction in Palm Beach County, Florida. This Agreement shall be
construed under Florida Law.
12. EXECUTION OF THE AGREEMENT: This Agreement will take effect once signed by
both parties. This Agreement may be signed by the parties in counterparts, which together
shall constitute one and the same agreement among the parties. A facsimile signature shall
constitute an original signature for all purposes. Each person signing this Agreement on
behalf of either Party individually warrants that he or she has full legal power to execute
the Addendum on behalf of the Party for whom he or she is signing and to bind and obligate
such Party with respect to all provisions contained in this Agreement
13. TERMINATION FOR CONVENIENCE: This Agreement may be terminated by the
City for convenience upon fourteen (14)calendar days of written notice by the terminating
party to the other party for such termination in which event the Vendor shall be paid its
compensation for services performed to the termination date,including services reasonably
related to termination. In the event that the Vendor abandons the Agreement or causes it
to be terminated, the Vendor shall indemnify the City against loss pertaining to this
termination.
Piggyback Contract—Commercial Risk Management,Inc. 4
14. TERMINATION FOR CAUSE: In addition to all other remedies available to City, this
Agreement shall be subject to cancellation by City for cause, should Vendor neglect or fail
to perform or observe any of the terms, provisions, conditions, or requirements herein
contained, if such neglect or failure shall continue for a period of thirty(30) calendar days'
after receipt by Vendor of written notice of such neglect or failure.
15. INDEMNIFICATION: Vendor shall indemnify and hold harmless the City, its elected
and appointed officers, agents, assigns and employees, consultants, separate Vendors, any
of their subcontractors,or sub-subcontractors, from and against claims, demands,or causes
of action whatsoever, and the resulting losses, damages, costs, and expenses, including but
not limited to attorneys' fees, including paralegal expenses, liabilities, damages, orders,
judgments, or decrees, sustained by the City arising out of or resulting from (A)Vendor's
performance or breach of Agreement, (B) acts or omissions, negligence, recklessness, or
intentional wrongful conduct by Vendor's, its agents, employees, subcontractors,
participants, and volunteers, and (C) Vendor's failure to take out and maintain insurance
as required under this Agreement. Vendor's shall pay all claims and losses in connection
therewith and shall investigate and defend all claims, suits, or actions of any kind or nature
in the name of the City, where applicable, including appellate proceedings, and shall pay
all costs,judgments, and attorneys' fees which may issue thereon. The obligations of this
section shall survive indefinitely regardless of termination of the Agreement.
16. LIMITATION OF LIABILITY: Notwithstanding any provision of the Agreement to
which it is applicable, City shall not be liable or responsible to Vendor beyond the amount
remaining due to Vendor under the Agreement,regardless of whether said liability be based
in tort, contract, indemnity or otherwise; and in no event shall City be liable to Vendor for
punitive or exemplary damages or for lost profits or consequential damages.
17. INDEPENDENT CONTRACTOR: The Agreement does not create an
employee/employer relationship between the Parties. It is the intent of the Parties that
Vendor is an independent contractor pursuant to the Agreement and shall not be considered
the City's employee for any purpose.
18. COMPLIANCE WITH LAWS: Vendor hereby warrants and agrees that at all times
material to the Agreement, Vendor shall perform its obligations in compliance with all
applicable federal, state, and local laws, rules, and regulations, including section 501.171,
Florida Statutes. Non-compliance may constitute a material breach of the Agreement.
19. ASSIGNMENT: In the event this Agreement and any interests granted herein shall be
assigned, transferred, or otherwise encumbered, under any circumstances by Vendor,
Vendor must gain prior written consent from City thirty (30) business days before such
transfer. For purposes of this Agreement, any change of ownership of Company shall
constitute an assignment that requires City's approval. Notwithstanding the foregoing,
Vendor may, without City's consent, assign this Agreement in whole or in part as part of a
corporate reorganization, consolidation, merger, or sale of substantially all of its assets
related to this Agreement. Vendor shall provide City written notice of any such corporate
reorganization, consolidation, merger, or sale of substantially all of its assets related to this
Agreement within thirty(30) calendar days of such event.
Piggyback Contract—Commercial Risk Management,Inc. 5
20. AGREEMENT SUBJECT TO FUNDING: The Agreement shall remain in full force and
effect only as long as the expenditures provided for in the Agreement have been
appropriated by the City Commission of the City of Boynton Beach in the annual budget
for each fiscal year of this Agreement, and is subject to termination based on lack of
funding. Early termination by City due to loss of funding shall not obligate Vendor to
refund any prepaid fees.
21. ENTIRE AGREEMENT.The Agreement,including the Master Agreement, sets forth the
entire Agreement between the City and the Vendor with respect to the subject matter of
this Agreement. This Agreement supersedes all prior and contemporaneous negotiations,
understandings, and agreements,written or oral,between the parties. This Agreement may
not be modified except by the parties' mutual agreement set forth in writing and signed by
the parties.
22. SEVERABILITY.If any provision of this Agreement or application thereof to any person
or situation shall, to any extent, be held invalid or unenforceable, the remainder of this
Agreement, and the application of such provisions to persons or situations other than those
as to which it shall have been held invalid or unenforceable, shall not be affected thereby,
and shall continue in full force and effect, and be enforced to the fullest extent permitted
by law.
Signature Page to follow
Piggyback Contract—Commercial Risk Management,Inc. 6
IN WITNESS OF THE FOREGOING, the parties have set their hands and seals the day
and year first written above.
CITY OF BOYNT ' BEACH, " ol reDA COMMERCIAL RISK MANAGEMENT, INC.
AIvo
Daniel tugger, City Manager I_ igriature), Company
rJ S .4-1") —/'/e,/S
Print Name of Authorized Official
Title
Approved as to Form:
)dialigt j • o'Vtr6
Shawna G. Lamb, City Attorney (Corporate Seal)
Attest/Authenticated:
Attested/Authenticated: _ v�
(Signature), Witness
Print Name
=—0\(N TON``%
i 0����PORATF.��: t
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EXHIBIT A
VENDOR'S PROPOSAL
Piggyback Contract—Commercial Risk Management,Inc. 8
110 Commercial Risk
Management, Inc.
The Piece That Completes Your Claims Puzzle
OCTOBER 3, 2023
PRICING PROPOSAL
CITY OF BOYNTON BEACH
COMMERCIAL RISK MANAGEMENT, INC. LIFE OF CONTRACT PRICING
Proposed annual flat service fee is for the life of the contract and includes new and inventory
claims. This fee will be payable in quarterly installments. Proposed pricing for the multiyear
contract is:
Year 1 $35,700
Year 2 $35,700
Year 3 $35,700
Year 4 $37,200
Year 5 $37,200
No administrative fee
MMSEA Reporting. Commercial Risk Management, Inc. will serve as the Client's Submission
Agent for workers' compensation claims and billed as follows:
Claims query for Medicare beneficiary status: $5.00 per claim and billed to the file quarterly
Initial claim input filing: $50.00 per claim
Interim/Update filing: no charge
Final claim filing: $25.00 per claim
Telephonic Nurse Case Management (TCM) $82 per hour with the City of Boynton Beach
authority. TCM criteria will be provided and customized for the City of Boynton Beach.
BILL REVIEW/REPRICING/PPO NETWORK BY CORVEL CORPORATION
Base Repricing Fee
$6.25 per bill. Includes data capture, duplicate checking, application of state fee schedule/U&C
reductions.
Professional Bill Review/Negotiation/PPO Network Reductions
25% of savings
Mail EOB to provider
$1.00 per EOB
PHARMACY BENEFIT MANAGEMENT BY MYMATRIXX
Retail
Brands
AWP-15%
Generics
AWP-50%
Mail Order
Brands
AWP-17%
Generics
AWP-55%
EXHIBIT B
AGREEMENT BETWEEN VOLUSIA COUNTY,FLORIDA
AND
COMMERCIAL RISK MANAGEMENT,INC.
Piggyback Contract—Commercial Risk Management,Inc. 9
^fit
Volusia County
FLORIDA
AGREEMENT
FOR
PROFESSIONAL WORKERS COMPENSATION
THIRD PARTY ADMINISTRATION SERVICES
Between
THE COUNTY OF VOLUSIA
AND
COMMERCIAL RISK MANAGEMENT, INC.
County of Volusia
Purchasing & Contracts Division
123 West Indiana Avenue, Suite 302
DeLand, Florida 32720-4608
386-736-5935
AGREEMENT FOR PROFESSIONAL WORKERS COMPENSATION THIRD PARTY
ADMINISTRATOIN SERVICES
This Agreement for Professional Workers Compensation Third Party Administration
Services (hereinafter "Agreement") made and entered by and between COMMERCIAL RISK
MANAGEMENT, INC., a Florida Corporation, duly authorized to conduct business in the State of
Florida, and whose principal place of business is located at 2002 n. Lois Ave., Suite 600, Tampa,
Florida, 33607 ("Contractor") and COUNTY OF VOLUSIA, a body corporate and politic and a
subdivision of the State of Florida, whose address is County of Volusia, 123 West Indiana Avenue,
DeLand, Florida 32720 ("County").
RECITALS:
WHEREAS, the County desires to retain the services of a competent and qualified
Contractor to provide professional workers compensation third party administration services; and
WHEREAS, the County issued Request for Proposals 22-P-58BB (the "RFP") seeking a
qualified firm to perform professional workers compensation third party administration services,
and has received responses from various potential vendors; and
WHEREAS, the County has determined that Contractor is fully qualified to render the
required service; and
WHEREAS, in reliance on Contractor's response to the RFP, the County determined that
the execution of this Agreement is beneficial to the people of County of Volusia, Florida.
NOW, THEREFORE, in consideration of the foregoing recitals which are incorporated
herein by reference, and other specific consideration set forth in this Agreement, the receipt and
sufficiency of which is acknowledged by Contractor and County, the parties agree and stipulate
as follows:
1 DEFINITIONS
For this Agreement and any incorporated exhibits, certain terms, phrases, words and their
respective derivations shall have the meaning set forth and defined therein and shall be
applicable in both. Definition of terms in the Agreement shall first be governed by this
Agreement, second by the incorporated Scope of Services (Exhibit A), third by the
incorporated Fee Schedule (Exhibit B). In the event of any conflict among the foregoing, the
conflict shall be resolved in the order of priority set forth in the preceding sentence. If there is
no applicable definition as described above, the terms, phrases, and words, and their
respective derivations when used in this Agreement and the Scope of Services, shall have
the meanings ascribed to them in the following order of precedence: first, in the most current
edition Black's Law Dictionary and last, in the most current edition of the Merriam-Webster
Collegiate Dictionary, if a term is not defined in the Agreement or Black's Law Dictionary.
1.1. Agreement: This Agreement for professional workers compensation third party
administration services, including its articles, exhibits, addenda, and attachments.
1.2. Amendment: An amendment to this Agreement in writing, approved by the Director
of Purchasing and Contracts, and signed by the County and Contractor authorizing a
modification or revision to one or more terms or conditions of this Agreement.
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1.3. Applicable Law: Means the state, federal and/or international law and/or regulation
that apply to a Party or the Plan.
1.4. Authorized Generic: Shall mean a pharmaceutical product sold, licensed, or
marketed under a new drug application (NDA) approved by the Food and Drug
Administration (FDA) under section 505(c) of the Federal Food, Drug and Cosmetic
Act (FFDCA) that is marketed, sold or distributed under a different labeler code,
product code, trade name, trademark, or packaging (other than repackaging the listed
drug for use in institutions) than the innovator brand name drug.
1.5. Average Wholesale Price ("AWP"): Shall mean the average wholesale price of a
Covered Drug as established and reported by Medi-Span. The applied AWP of a
Covered Drug shall be the AWP for the actual eleven (11) digit National Drug Code
("NDC"), Covered Drug specific, quantity appropriate actual package size (or the
manufacturer-packaged quantity closest to the dispensed size), submitted by a Retail
Pharmacy, Home Delivery Pharmacy, or Specialty Pharmacy at the time that the
Covered Drug is adjudicated.
1.6. Bank Account: A claims account with a bank designated and established by the
Contractor in the Contractor's name with the County as a subsidary, and maintained
by Contractor.
1.7. Brand Drug: Shall mean a pharmaceutical product, including a Covered Drug that is
a prescription drug, including over-the-counter drugs dispensed pursuant to a
prescription, medicine, agent, substance, device, supply or other therapeutic product
that is not a Generic Drug. Except if and where the language expressly states
otherwise, a Brand Drug Claim does not include a Specialty Brand Drug Claim for
ingredient cost discount purposes.
1.8. Change Order: A written change or modification to this Agreement approved by the
County's Project Manager and Contractor, which is signed by the County and
Contractor authorizing an addition, deletion, or revision in the Scope of Services, or
an adjustment in the Agreement price or time, without change to any other terms or
conditions of the Agreement.
1.9. Compensation: The amount paid by the County to Contractor for Services regardless
of whether stated as compensation or stated as hourly rates, overhead rates, or other
figures or formulas from which compensation can be calculated which includes the
total monies payable to Contractor, under the terms of this Agreement, for all Services,
labor, materials, supplies, travel, training, profit, overhead, costs, expenses, and any
other costs necessary to complete work under the Scope of Services.
1.10. Constitutional Officers: Shall mean The Clerk of the Circuit Court of Volusia County,
Volusia County Property Appraiser, Volusia Sheriff's Office, Volusia County
Supervisor of Elections, and Volusia County Tax Collector. For the purposes of this
solicitation shall be: Volusia County Property Appraiser, Volusia Sheriff's Office,
Volusia County Supervisor of Elections, and Volusia County Tax Collector.
1.11. Contract Administrator: The Director of Purchasing and Contracts or his/her
designee responsible for addressing any concerns within this Agreement.
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1.12. Contractor: Commercial Risk Management, Inc.
1.13. County: Shall mean the County of Volusia (a body corporate and politic and a
subdivision of the State of Florida) including its districts, authorities, separate units of
government established by law (constitutional), ordinance or resolution, partners,
elected and non-elected officials, employees, agents, volunteers, and any party with
whom the County has agreed by contract to provide additional insured status.
1.14. County Data: Numerical or other information represented in for suitable for
processing or for analysis or used as the basis for making a decision for the County.
1.15. County Project Manager: The person designated by the County to review, approve
and make decisions regarding the Scope of Services in this Agreement.
1.16. Deliverable(s): The products or services provided through the Scope of Services for
this Agreement including but not limited to: other services, reports, written
documentation, training, systems or processes.
1.17. Effective Date: The date that this Agreement is fully executed by Contractor and the
County.
1.18. HIPAA: Internal Revenue Code and the Health Insurance Portability and
Accountability Act, as amended.
1.19. Key Personnel: Contractor's personnel who are responsible for Contractor's day-to-
day Project operations as described in Contractor's Proposal.
1.20. Project: The project that is described in Exhibit A of this Agreement.
1.21. Project Manager: An employee of a party who is assigned to the Agreement and is
responsible for the day-to-day administration and coordination of the Agreement for
the party.
1.22. Proposal: The document submitted by Contractor in response to a formal solicitation
(RFP No. 22-P-58PW), which is used to determine if Contractor is highly qualified.
1.23. Run-out period: Upon termination of the Agreement, the Run-out Period shall begin
upon the termination date and expire three (3) months thereafter.
1.24. Scope of Services: The Services defined in this Agreement under the Scope of
Services and Exhibit A, which are hereby agreed to by the parties in writing, and which
includes Contractor's responsibility for performing and complying with all incidental
matters pertaining thereto.
1.25. Services: Those services defined in the Scope of Services to be performed by
Contractor pursuant to this Agreement and its attached exhibits, including: the work,
duties and obligations to be carried out and performed by Contractor under the
Agreement and pursuant to Exhibits A — B, attached hereto and made a part of this
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Agreement.
1.26. State: State of Florida.
1.27. Subcontractor: An entity that provides services (i.e., Networks, pharmacy, etc.) for
the performance of any part of this Agreement.
1.28. Warranty: The warranty or warranties as set forth in this Agreement including any
warranties required by State Law or regulation.
2 EXHIBITS
2.1 The exhibits listed below are incorporated into and made a part of this Agreement.
2.1.1 Exhibit A— Scope of Services,
2.1.2 Exhibit B — Fee Schedule
2.1.3 Exhibit C — Insurance Requirements
2.1.4 Exhibit D — Business Associate Agreement
3 ORDER OF PRECEDENCE
3.1 If Contractor finds any potential or possible inconsistency, conflict, error, or
discrepancy in the Agreement, the order of precedence, Contractor shall immediately
call it to the County Project Manager's attention, in writing, and request the County
Project Manager's interpretation and direction before proceeding with the Services
affected thereby.
In the event of any conflicts or inconsistencies between any exhibit to the Agreement
and the Agreement itself, such conflict or inconsistency shall be resolved by giving
precedence in the following order:
3.1.1 In the event of any conflicts or inconsistencies between Exhibit A — Scope of
Services and any other exhibit of this Agreement in regard to the Scope of
Services, Project specifications, performance criteria, or management metrics,
Exhibit A— Scope of Services shall be controlling.
3.1.2 In the event of any conflicts or inconsistencies between Exhibit B — Fee
Schedule and any exhibit in regard to the types of services to be provided
under this Agreement, Exhibit B — Fee Schedule shall be controlling.
3.1.3 In the event of any conflicts or inconsistencies between the Agreement and
any exhibit to the Agreement in regard to all terms and conditions addressed
in the Agreement, the Agreement shall be controlling.
4 SCOPE OF SERVICES. Contractor shall provide Services under this Agreement and act as
Contractor to the County in accordance with the Scope of Services as specifically set forth in
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this Agreement and its exhibits.
4.1 Contractor shall provide professional workers compensation third party administration
services in accordance with the Scope of Services attached as Exhibit A.
4.2 Performance Criteria:
4.2.1 All services shall be performed in accordance with the Agreement and
carried out under the direction of the County's Project Manager.
4.2.2 All labor necessary to complete the Scope of Services shall be performed
in a good and competent professional manner, in accordance with industry
standards and to the satisfaction of the County.
4.2.3 Changes to Scope of Services. The County may, at any time, by written
change order, make changes within the general Scope of Services to be
performed under this Agreement; unless otherwise allowed by the County
in the written change order, such changes to the Scope of Services (or
Contractor's claim for adjustment, described below) shall not allow, permit,
or excuse any delay in the performance of the work. Except as otherwise
stated herein, if any such change causes an increase or decrease in
Contractor's cost of the Services or the time required for performance of
the work, the County may make an equitable adjustment by amending this
Agreement and stating the equitable adjustment in such amendment.
Determination of whether an increase or decrease in cost was caused by
the change to the Scope of Services shall be in the County's sole
discretion. Any claim by Contractor for adjustment under this article must
be asserted in writing within thirty (30) days from the date of the County's
notification to Contractor (whether made orally or in writing) of the change
that caused the claim for adjustment; otherwise, the claim shall be deemed
waived. Except as otherwise provided in this Agreement, no charge for any
extra work or materials shall be allowed or approved by the County. No
additional work shall be performed or extra materials purchased until a
written Change Order has been approved by Contractor and County.
4.2.4 The parties acknowledge that Exhibit A may not delineate every detail and
minor work task required to be performed by Contractor to complete its
services and provide the Deliverables. If, during the course of the
performance of the services, Contractor and County determine that
additional service should be performed which, in Contractor's opinion, is
outside the level of effort originally anticipated in Exhibit A, whether or not
Exhibit A identifies the service items, Contractor shall notify the Agreement
Administrator in writing in a timely manner, with such notification being
made pursuant to Section 12.4 and serving as Contractor's request for a
Contract Amendment pursuant to 15.17 Entire Agreement. If Contractor
proceeds with said service without notifying the Contract
Administrator, and pursuant to Section 4.2.2, said service shall be
deemed to be within the original level of effort, whether or not
specifically addressed in Exhibit A. Notice for such additional service
that is inconsistent with Section 4.2.2 to the Contract Administrator by
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Contractor shall not constitute authorization or approval by County to
perform said service. Accordingly, performance of service by Contractor
outside the originally anticipated level of effort without prior written County
approval is at Contractor's sole risk and County shall not be liable for
payment of said additional service.
4.2.5 Time is of the Essence. Time is of the essence for all Services performed
under this Agreement and all Projects performed in accordance herewith.
4.2.6 Authority to Act on Behalf of County. County's Purchasing and
Contracts Director, or such other proper authority pursuant to County
policies and procedures, shall have the authority to approve, award, and
execute all documents or other instruments required to effectuate changes,
modifications, or additional service, so long as the then cumulative financial
obligation of County for such additional items does not exceed the Director
of Purchasing and Contracts' authority under the County Code of
Ordinances or policies and procedures. Any change, modification or
additional service that causes the cumulative financial obligation of County
for such additional items to exceed the Purchasing Director's or County
Manager's authority under the Procurement Code shall be presented to the
Volusia County Council for approval.
5 RESPONSIBILITY OF CONTRACTOR
5.1 Where questions exist as to the Scope of Services to be provided, Contractor shall
promptly confer with the Project Manager to ascertain the functional criteria of the
Scope of Services. The Services of Contractor shall also include the following:
5.1.1 Contractor shall keep the County informed of any changes or
advancements in technology occurring any time prior to or during actual
implementation of the Services to the extent that such changes and
advancements may increase efficiency or otherwise allow for better
services or reductions in costs to the County.
5.1.2 Contractor covenants and agrees as follows:
5.1.2.1 That there are no obligations, commitments, or impediments of
any kind that shall limit or prevent Contractor's performance of the
Services.
5.1.2.2 That its allegations and representations regarding its special
talent, training, and experience caused the County to select
Contractor to be the prime professional;
5.1.2.3 That Contractor possesses the special skills to recognize material
errors or omissions that would result in failures to appropriately
perform in accordance with the Scope of Services;
5.1.2.4 That Contractor shall adhere to the standard of care applicable to
a contractor with the degree of skills and diligence normally
employed by a licensed professional in its field or practice
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performing the same or similar Services in compliance with all
applicable federal, state, and municipal laws, regulations, codes,
and ordinances;
5.1.2.5 That Contractor shall provide any Project data, summaries,
reports, or studies, pursuant to Subsection 5.1.2.4 above,
accurately with regard to the information contained therein.
County's acceptance, approval, or reliance on any such
documentation shall not release Contractor from any liability if
such information is incorrect or inaccurate, it being understood
that the County is relying on Contractor's status as an industry
professional in accepting such documentation.
5.2 Supervision. Subject to Subsection 5.1.2.4, Contractor shall direct and supervise
competent and qualified personnel and shall devote time and attention to the direction
of the operation to ensure performance of obligations and duties as set forth herein.
Contractor shall hire, compensate, supervise, and terminate members of its work
force, and Contractor shall direct and control the manner in which Services are
performed including conditions under which individuals shall be assigned duties, how
individuals shall report, and the hours individuals shall perform. Contractor shall be
responsible for all income tax, social security and Medicare taxes, federal
unemployment taxes, and any other withholdings from the company's employees'
and/or Subcontractors'wages or salaries. Benefits, if any, for Contractor's employees
and/or Subcontractors shall be the responsibility of Contractor including, but not limited
to, health and life insurance, retirement, liability/risk coverage, and worker's and
unemployment compensation. Contractor shall be solely responsible for the means,
methods, techniques, sequences and procedures in delivering Services pursuant to
this Agreement. Further, Contractor shall be responsible for assuring the County that
finished or completed Deliverables comply with the requirements of this Agreement
and the Scope of Services contained therein.
5.3 Assurance. Subject to Subsection 5.1.2.4, Contractor gives the County its assurance
that all Services performed under this Agreement shall be timely performed in a
competent and professional manner and in accordance with the specifications and
requirements of the Agreement and any approvals required under the Agreement. All
Services not conforming to the specifications and requirements of the Scope of
Services shall be considered materially defective and constitute a breach of this
Agreement.
5.4 Accuracy of Reports / Summaries. Contractor shall be responsible for the
professional and technical accuracy and the coordination of all data, reports,
summaries, and any other Services furnished by Contractor under this Agreement.
Contractor shall, without additional cost to the County, correct or revise any errors or
deficiencies in its Services for which it is responsible.
5.5 Services to Comply with Specifications and Law. All Services performed by
Contractor including all general provisions, special provisions, job specifications,
drawings, addendum, amendments to the basic Agreement, written interpretations,
and written orders for minor changes in Services, shall comply with the Scope of
Services and all applicable local laws, codes, ordinances and statutes.
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5.6 Subcontractors.
5.6.1 Employment or Substitution of Subcontractors. Contractor shall not
employ any Subcontractor, other person, or organization of against
whom the County may have reasonable objection, nor shall Contractor
be required to employ any Subcontractor against whom it has
reasonable objection. Contractor shall not make any substitution for any
Subcontractor who has been accepted by the County without the
County's approval.
5.6.2 Disapproval of Subcontractors. County's disapproval or requirement
of removal or replacement of Contractor's employee or Subcontractor
shall be deemed for lawful reasons if in County's reasonable judgment,
such Contractor's employee or Subcontractor poses a threat or causes
harm to the health, welfare, or safety, or morale of the County or its
agencies, personnel or property or who fails any drug test administered
in connection with this Agreement, or who has been convicted of a felony
or a misdemeanor involving "moral turpitude" or has been released or
dishonorably discharged or separated under conditions other than
honorable from any of the Armed Forces of the United States.
5.6.3 Contractor Responsible for Subcontractors. Contractor shall be fully
responsible for all negligent acts and omissions of its Subcontractor and
of persons directly or indirectly employed by them and of persons for
whose negligent acts any of them may be liable to the same extent that
it is responsible for the negligent acts and omissions of persons directly
employed by it. Nothing in the Agreement shall create any contractual
relationship between any Subcontractor and the County or any
obligation on the part of the County to pay or to see to the payment of
any monies due any Subcontractor, except as may otherwise be
required by law. County may furnish to any Subcontractor to the extent
practicable, evidence of amounts paid to Contractor on account of
specific Services done in accordance with the schedule of values.
5.6.4 Subcontractors to Act Pursuant to this Agreement. Contractor
agrees to bind specifically every Subcontractor to the applicable terms
and conditions of the Agreement for the benefit of the County, and shall
require all Subcontractors or other outside associates employed in
connection with this Agreement to comply fully with the terms and
conditions of this Agreement as such may apply to the Services being
performed for Contractor.
6 TERM OF AGREEMENT
6.1 The term of this Agreement shall commence on the Effective Date of this Agreement
or when it is fully executed by all parties, whichever is later, and shall terminate five
(5) years from the Effective Date. One (1) subsequent five (5) year renewal is
permissible upon mutual written agreement between the parties.
6.2 The Services to be rendered by Contractor shall be commenced, as specified in this
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Agreement or as may be requested by the County and shall be completed within the
time specified therein.
6.3 Transition Services. If this Agreement expires or is earlier terminated, Contractor
shall negotiate in good faith with County to develop a transition plan (the "Transition
Plan") in the form of an Amendment to this Agreement to be signed by both parties.
Such Transition Plan shall include, transition services necessary as may be
reasonably required to enable the Contractor to transition County Data (the "Transition
Services") to County or another provider. Transition Services may include by shall not
be limited to:
6.3.1 Working with the County to jointly develop a mutually agreed upon Transition
Services plan to facilitate the termination of the services;
6.3.2 Performing the Transition Services plan activities;
6.3.3 Answering questions regarding the services on an as-needed basis; and
6.3.4 Providing such other reasonable services needed to make an orderly
transition to a new service provider or to the County.
6.3.5 Prior to the termination of the Agreement, Contractor technical staff familiar
with the Contractor's applications and the data structure shall work with
County assigned IT technology staff in the creation of data conversion maps
or equivalent to be used to convert the data from the Contractor's application
databases to the application database selected by County as a replacement.
6.4 Upon notification to Contractor that County is ready to convert to a replacement,
Contractor shall transfer County's data in a format as may be mutually agreed to by
County and Contractor, and then cease to host the application.
7 AGREEMENT PRICE AND COMPENSATION
7.1 Payment Pursuant to Fee Schedule. Contractor shall be paid Compensation for all
Services. Compensation listed in Exhibit B — Fee Schedule constitutes complete
payment for all Services rendered under this Agreement, including the cost of all
projects, materials, equipment, labor, expenses, all mark-ups for overhead and profit
more particularly described in Exhibit B — Fee Schedule. The County agrees to pay
Contractor in current funds, as compensation for its Services.
7.1.1 All costs of providing Scope of Services shall be the responsibility of the
Contractor.
7.1.2 No Reimbursable Expenses. There are no reimbursable expenses for this
Contract.
7.2 Errors and Omissions in Pricing. Compensation shall not be adjusted because of
errors or omissions not the fault of the County in computing the Services costs which
result in an increase in the cost of this Agreement or because the time for completion
varies from the original estimate, including completion or substantial completion of this
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Agreement prior to the scheduled or Agreement completion date or on account of
County's election to furnish any of the Services. In addition, Contractor shall certify
that the original Agreement price or Compensation for the Scope of Services and any
additions thereto shall be adjusted to exclude any significant sums by which the
County determines the price or Compensation was increased due to inaccurate,
incomplete, or noncurrent wage rates and other factual unit costs.
7.3 Reimbursable Expenses. County's payment to Contractor pursuant to the Fee
Schedule, attached hereto and incorporated herein as Exhibit B, shall be full
compensation for Services rendered and any expenses incurred in connection
therewith, and Contractor shall not be eligible for reimbursement for any expenses
incurred in connection with the performance of this Agreement.
7.4 Payments. Any payments shall be made in accordance with Exhibit B — Fee
Schedule. The rates expressed in Exhibit B shall govern Compensation and provide
for payments against specified Deliverables and performance.
7.4.1 Approval of Payment. If, on the basis of the County Project Manager's
observation and review of Contractor's Services, the County Project
Manager is satisfied that the Services have been completed and
Contractor has fulfilled all of its obligations under the Agreement, the
County Project Manager, after receipt of a proper invoice, shall indicate
in writing his or her approval of payment and present the invoice to
Accounts Payable for payment. Otherwise, the County Project Manager
shall return the invoice to Contractor, indicating in writing the reasons
for refusing to approve final payment. Subsequent to receiving a
returned invoice, Contractor will make the necessary corrections and
resubmit the invoice and, if requested, provide explanation or
substantiation for said invoice. Regardless of the foregoing, approval of
payment pursuant to this section shall not prevent the County from
recovering amounts paid when the County subsequently discovers
material defects or deficiencies in the services or work provided by
Contractor, which defects or deficiencies would have otherwise caused
the County to withhold payment.
7.4.2 Claims Payments.
7.4.2.1 The finance and banking arrangements for the workers
compensation third party administration services shall include
documentation for claims reimbursement and shall meet the
accounting needs of the County, as determined by the
County.
7.4.2.2 Claims payments made by the County for the workers
compensation third party administration services shall be on
a check clearing the bank basis. The County will transfer
money into Contractor's bank account for the reimbursement
of claims at least two (2) times per week.
7.5 Invoices. Invoices or payment requests shall be addressed from Contractor and
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submitted to the County's Project Manager. All invoicing and payments, including the
practices and procedures pertaining thereto, shall be governed by the applicable
provisions of Part VII of Chapter 218, Florida Statutes.
7.5.1 Invoice Detail. Contractor shall submit an invoice for which professional
Services were rendered to the County upon the completion and
acceptance of the Services. Each invoice shall show detailed
explanations of the Services accomplished and, if requested, provide
substantiation for same. Invoices shall be in accordance with the
Agreement prices set forth by labor hours by classification, associated
rates, any material or subcontracted costs and any indirect rates or costs
in accordance with the Agreement prices set forth hereto. All of the
above shall sum to the total amount requested.
7.5.2 Contractor's Invoice(s)shall be accompanied by supporting data as may
be required by the County Project Manager. County Project Manager
shall review Contractor's Invoice and supporting data and notify
Contractor in writing within ten (10) days from receipt of the statement if
any amounts requested are disputed or lack adequate support or
documentation.
7.5.3 Invoicing Pursuant to Agreement. Pursuant to Exhibit B, Contractor
shall invoice County for all payments due Contractor under this
Agreement. County shall pay invoices in accordance with this
Agreement. Invoices shall be sent to the address specified by the
County.
7.5.4 Withholding. The County may withhold payment of any specific
invoiced charges that it disputes in good faith and pay all undisputed
charges on the invoice.
7.5.5 Payment Due. Within forty-five (45) days of acceptance by the County
Project Manager of all the Services for which Contractor has submitted
an invoice of professional Services, Contractor shall be paid the unpaid
balance of any money due for any undisputed Services covered by said
invoice.
7.5.6 Taxes. County is a tax exempt entity and shall not be charged or
invoiced for the payment of taxes for Services performed under this
Agreement.
7.6 Contractor's Continuing Obligations. Contractor's obligation to perform Services in
accordance with the Agreement shall be absolute. Nothing, including without limitation,
the following, shall constitute an acceptance of Services not in accordance with the
Agreement: approval of any progress; final payment to Contractor; documentation
confirming acceptance of the Services by the County; any payment by the County to
Contractor under the Agreement; any act of acceptance by the County or any failure
to do so; any correction of defective Services by the County.
7.7 Non-appropriation. Notwithstanding any other term or provision of this Agreement,
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the continuation of this Agreement beyond a single fiscal year of County is subject to
the appropriation and availability of funds in accordance with Chapter 129, Florida
Statutes. Termination by the County due to non-appropriation shall be without a
termination charge by Contractor. The County shall not be obligated to pay Contractor
under this Agreement beyond the date of termination except as set forth in this
Agreement. County's obligation to pay Contractor is limited to the budgeted amount
for a fiscal year approved by the Volusia County Council for the then-current fiscal year
of this Agreement and is otherwise limited to legally available non-ad valorem tax
revenues.
7.8 Unusual Costs The Contractor may petition the County at any time for an additional
rate adjustment on the basis of extraordinary and unusual changes in the costs of
operation that could not reasonably be foreseen by a prudent operator and which, by
all reasonable expectations, will continue for at least one (1) year. If the Contractor
petitions for such in increase, the Contractor shall also petition for a rate reduction on
the basis of extraordinary and unusual changes in the costs of operation that could not
reasonably be foreseen by a prudent operator and which, by all reasonable
expectations, will continue for at least one (1) year; failure to make such petition may
be grounds for Agreement termination.
The Contractor's request shall contain substantial proof and justification to support the
need for the rate adjustment. The County may request from the Contractor and the
Contractor shall provide such further information as may be reasonably necessary in
making its determination. The County shall approve or deny the request, in whole or
in part, within sixty (60) days of receipt of the request and all other additional
information required by the County. Any price redetermination shall be solely based
upon the documentation provided and the County reserves the right to rescind any
price relief granted should the circumstances change and prices decrease.
8 PAYMENT OF SUBCONTRACTORS
8.1 Payment. Contractor shall pay its Subcontractors and suppliers,within thirty(30)days
following receipt of payment from the County for such subcontracted Services or
supplies. Contractor agrees that if it withholds an amount as retainage from such
Subcontractors or suppliers, that it shall release such retainage and pay same within
thirty (30) days following receipt of payment of retained amounts from County.
8.2 Indemnification as to Payment of Subcontractors. Contractor shall save, defend,
and hold the County harmless from any and all claims and actions from Contractor's
Subcontractors for payment for Services and Deliverables provided by Subcontractors
for Contractor under this Agreement. Regardless of the foregoing, nothing in this
Agreement shall create any contractual relationship between any Subcontractor and
the County or any obligation on the part of the County to pay or to see the payment of
any moneys due any Subcontractor, except as may otherwise be required by law.
9 LIMITATION OF LIABILITY AND INDEMNIFICATION OF COUNTY
9.1 Indemnification. Contractor shall indemnify, defend and hold harmless the County,
including its districts, authorities, separate units of government established by law
(constitutional), ordinance or resolution, partners, elected and non-elected officials,
employees, agents, volunteers, and any party with whom the County has agreed by
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contract to provide additional insured status from and against all claims, damages,
losses, and expenses, including, but not limited to, attorney's fees arising out of,
resulting from, or incident to Contractor's performance of its obligations in whole or
part of this Agreement, unless such injury or damage is occasioned solely by the fault,
negligence, or willful misconduct of the County.
9.2 In all claims against the County, Contractor's indemnification obligation shall not be
limited in any way by any limitation on the amount or type of damages, compensation
or any benefits payable by or for Contractor, or its employees, agents, contractors, or
Subcontractors.
9.3 Sovereign Immunity. The County expressly retains all rights, benefits and immunities
of sovereign immunity in accordance with Section 768.28, (as amended) Florida
Statutes. Notwithstanding anything set forth in any section of this Agreement to the
contrary, nothing in this Agreement shall be deemed as a waiver of the County's
immunity or limits of liability beyond any statutory limited waiver of immunity or limits
of liability that may have been or may be adopted by the Florida Legislature, and the
cap on the amount and liability of the County for damages, regardless of the number
or nature of claims in tort, equity, or contract, shall not exceed the dollar amount set
by the legislature for tort. Nothing in this Agreement shall inure to the benefit of any
third party for the purpose of allowing any claim against the County, which claim would
otherwise be barred under the doctrine of sovereign immunity or by operation of law.
10 INSURANCE
Contractor shall provide the required insurance detailed in Exhibit C for the entire Term
of the Agreement. Regardless of anything submitted as proof of insurance, Contractor
shall comply with all requirements of Exhibit C.
11 TERMINATION
11.1 County may terminate this Agreement upon at least thirty (30) days prior written notice
to Contractor.
11.2 Contractor may terminate this Agreement upon at least three hundred sixty-five (365)
days prior written notice to County.
11.3 Upon receipt of notice of termination by the County from Contractor or upon delivery
of notice of termination from the County to Contractor, Contractor shall:
11.3.1 Stop work under the Agreement on the date and to the extent specified in
County's Notice of Termination.
11.3.2 For approved services occurring after the termination of this Contract,
Contractor shall continue processing claims for three (3) months pursuant
to the Scope of Services.
11.3.3 Effect of Termination/Transition. Upon termination of a service, (1)
terminating party shall notify the other party of the date on which such
service shall cease and all rights granted to County with respect to that
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service shall terminate; (2) County shall pay all costs and claims due and
owed during the Run-out period; and (3) County shall have the ability to
access and download County records and reports until expiration of the
Run-out period. Contractor agrees that it shall continue to perform the
administrative services during any post-termination Run-out Period in
accordance with the terms and conditions of the Contract and the Parties
agreed upon Transition Plan per section 6.3 of this Contract.
11.3.4 Inform the County, in writing, of the extent to which performance is
completed.
11.3.5 Place no further orders or subcontracts for materials, services, or facilities
except as may be necessary for completion of such portion of the Services
under the Agreement that is in progress but not yet completed.
11.3.6 Assign to the County, in the manner, at the times, and to the extent directed
by the County, all of the right, title and interest of Contractor under the orders
and subcontracts so terminated.
11.4 For all undisputed outstanding invoices submitted to the County prior to the effective
date of the termination and subject to Article 6 - Term of Agreement, Article 7 —
Agreement Price and Compensation, and this Article 11 - Termination, the County
shall cause payments to be made to Contractor within forty five (45) days of receipt of
invoice. Contractor shall invoice the County for any sums Contractor claims to be
owed by County under this Agreement for work performed from the last invoice to the
effective date of termination. County shall review such invoice for payment and County
shall pay any undisputed amount within forty five (45) days.
11.5 With the approval of the County and to the extent required by the County, settle all
outstanding liabilities and all claims arising out of such termination. County's approval
of such settlements shall be final for all the purposes of a termination under this Article
11 - Termination. In addition, Contractor shall transfer title and deliver to the County,
in the manner, at the times, and to the extent, if any, directed by the County of
Deliverables, work-in-progress, reports, models, studies, and other materials
produced as a part of, or acquired in connection with the performance of the Services
terminated.
11.6 If Contractor fails to cure a breach within ten (10) calendar days after receipt of notice
from the County of said breach, the County may take over the Services and complete
the Services and Contractor shall be liable to the County for any increased cost of the
Project reasonably incurred by the County to complete Contractor's unfinished
Services. As such, County may apply unpaid Compensation due and owing to
Contractor prior to the default as a set off against the costs incurred by the County for
taking over such Services.
11.7 The right of termination provided to the County and Contractor herein shall be
cumulative of all other remedies available at law.
11.8 All provisions of this Agreement that impose or contemplate continuing obligations on
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a party will survive the expiration or termination of this Agreement.
12 DISPUTE RESOLUTION
12.1 Good Faith Efforts to Resolve. The parties to this Agreement shall exercise their
best efforts to negotiate and settle promptly any dispute that may arise with respect to
this Agreement in accordance with the provisions set forth in this Section 12, Dispute
Resolution. Contractor and County Project Manager shall use reasonable efforts to
arrange personal meetings and/or telephone conferences as needed, at mutually
convenient times and places, to address and work toward resolution of issues that
arise in performance of this Agreement and any applicable statement of Services.
Issues shall be escalated to successive management levels as needed.
12.2 Informal Dispute Resolution. If a dispute develops between the parties concerning
any provision of this Agreement, or the interpretation thereof, or any conduct by the
other party under this Agreements, and the parties are unable to resolve such dispute
within five (5) business days or longer, that party, known as the Invoking Party, through
its applicable Project Manager, shall promptly bring the disputed matter to the attention
of the non-Invoking Party's Project Manager or designated representative, as the case
may be, of the other party in writing ("Dispute Notice") in order to resolve such dispute.
12.3 Discovery and Negotiation / Recommended Procedures. Upon issuance of a
Dispute Notice, the Project Managers or designated representative shall furnish to
each other all non-privileged information with respect to the dispute believed by them
to be appropriate and germane. The Project Managers shall negotiate in an effort to
resolve the dispute without the necessity of any formal proceeding. If such dispute is
not resolved by the Project Managers or designated representative within ten (10)
County Work Days (defined as weekdays [i.e. Monday, Tuesday, Wednesday,
Thursday and Friday] not designated as holidays by the County) of issuance of the
Dispute Notice, or such other time as may be mutually allowed by the Project
Managers as being necessary given the scope and complexity of the dispute, the
Project Managers may, depending upon the nature, scope, and severity of the dispute,
escalate the dispute as indicated below:
County Work Contractor's Representative County Representative
Days
10 Contractor's Project Manager County's Project Manager
10 Contractor's Sr. Vice Director of Purchasing and
President Contracts
20 Contractor's COO or President Deputy County Manager
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12.4 Formal Dispute Resolution. At any point after issuance of a Dispute Notice under
this section, either party may request and initiate formal non-binding mediation before
a single mediator, which mediation shall be completed within thirty (30) days of
initiation or such longer time as may be agreed upon by both parties as being
necessary for the mutual selection of a mediator and scheduling of such mediation.
Any such mediation shall be convened and conducted in accordance with the rules
of practice and procedure adopted by the Supreme Court of Florida for court-ordered
mediation, Rule 1.700 et seq. of the Florida Rules of Civil Procedure, and Chapter
44, Florida Statutes. If the dispute remains unresolved after conducting such
mediation, then either party may proceed to finalize any pending termination
remedies and commence litigation in a court of competent jurisdiction. Each party
shall bear its own costs and attorney's fees for mediation or arbitration of an issue
arising under this Agreement.
12.5 Right to Terminate Reserved. Regardless of the dispute resolution procedures
provided for in this Section 12, Dispute Resolution, nothing herein shall affect, delay,
or otherwise preclude a party from terminating this Agreement in accordance with the
provisions of Section 11, Termination, it being understood that these dispute
resolution procedures are intended as a means of resolving disputes both during the
term of this Agreement and after termination or expiration thereof.
13 COUNTY DATA
13.1 Contractor agrees and understands that all files and other information and data
created in connection with the administration of this Agreement constitute a public
record, except to the extent it is exempt or proprietary under Florida Law(Chapter 119,
Florida Statutes) from disclosure or as preempted by federal law. Contractor agrees
to maintain for public record access such files and to maintain for public access such
files after termination of this Agreement to the extent required by the laws of the State
of Florida.
13.2 Upon any termination or expiration of this Agreement, Contractor, upon County's
written request, shall promptly deliver, but not more than thirty(30)days after County's
request, to County an extract of County's data hosted in the System in XML format or
such other format as mutually agreed upon by County and Contractor.
13.3 Medical records are of a confidential nature. The Contractor shall agree to establish
those procedures necessary to maintain the confidentiality of medical records, as
required by HIPAA and all applicable laws. Contractor shall follow and ensure its
affiliates, Subcontractors, etc., follow and adhere to the requirements contained in
Exhibit D.
13.4 Location of County Data. Contractor shall not out-source any development and/or
support for this Agreement or transfer any County Data outside the territorial limits of
the United States of America, without the written approval of the Agreement
Administrator.
13.5 THE ABOVE DUTIES AND OBLIGATIONS SHALL SURVIVE THE CANCELLATION
OR TERMINATION OF THIS AGREEMENT.
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14 LOCAL GOVERNMENT REQUIREMENTS
14.1 Public Records Law. Pursuant to section 119.0701(2)(a), Florida Statutes, the County
is required to provide Contractor with this statement and establish the following
requirements as contractual obligations pursuant to the Agreement:
IF CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO
CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS
RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN
OF PUBLIC RECORDS AT 386-736-5935,
purchasing@volusia.org, by mail, Purchasing and Contracts
Division, Attn: Public Records Custodian, 123 W. Indiana Ave.
RM 302 DeLand, FL 32720.
By entering into this Contract, Contractor acknowledges and agrees that any records
maintained, generated, received, or kept in connection with, or related to the
performance of services provided under, this Contract are public records subject to
the public records disclosure requirements of section 119.07(1), Florida Statutes, and
Article I, section 24 of the Florida Constitution. Pursuant to section 119.0701, Florida
Statutes, any Contractor entering into a contract for services with the County is
required to:
A. Keep and maintain public records required by the County to perform the
services and work provided pursuant to this Contract.
B. 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, Florida Statutes, or as otherwise provided by
law.
C. 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 or
termination of the Contract if Contractor does not transfer the records to the
County.
D. Upon completion or termination of the Contract, transfer, at no cost, to the
County all public records in the possession of Contractor or keep and maintain
public records required by the County to perform the service. If Contractor
transfers all public records to the County upon completion or termination of the
Contract, Contractor shall destroy any duplicate public records that are exempt
or confidential and exempt from public records disclosure requirements. If
Contractor keeps and maintains public records upon completion or termination
of the Contract, Contractor shall meet all applicable requirements for retaining
public records. All records stored electronically must be provided to the
County, upon request from the County's custodian of public records, in a format
that is compatible with the information technology systems of the County.
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Requests to inspect or copy public records relating to the County's Contract for
services must be made directly to the County. If Contractor receives any such request,
Contractor shall instruct the requestor to contact the County. If the County does not
possess the records requested, the County shall immediately notify Contractor of such
request, and Contractor must provide the records to the County or otherwise allow the
records to be inspected or copied within a reasonable time.
Contractor acknowledges that failure to provide the public records to the County within
a reasonable time may be subject to penalties under section 119.10, Florida Statutes.
Contractor further agrees not to release any records that are statutorily confidential or
otherwise exempt from disclosure without first receiving prior written authorization from
the County. Contractor shall indemnify, defend, and hold the County harmless for and
against any and all claims, damage awards, and causes of action arising from
Contractor's failure to comply with the public records disclosure requirements of
section 119.07(1), Florida Statutes, or by Contractor's failure to maintain public
records that are exempt or confidential and exempt from the public records disclosure
requirements, including, but not limited to, any third party claims or awards for
attorneys' fees and costs arising therefrom. Contractor authorizes County to seek
declaratory, injunctive, or other appropriate relief against Contractor from a Circuit
Court in Volusia County on an expedited basis to enforce the requirements of this
section.
14.2 No Code Violation or Past Due Debt. Contractor warrants and represents that
neither the business, nor any officer or significant stakeholder of the business is in
violation of the Volusia County Code of Ordinances, and does not owe the County any
past due debt. Any breach of the foregoing warranty and representation shall be a
material breach of this Agreement and the County shall have the right to terminate this
Agreement as set forth herein.
14.3 Changes Due to Public Welfare. The County and Contractor agree to enter into
good faith negotiations regarding modifications to this Agreement which may be
required in order to implement changes in the interest of the public welfare or due to
change in law or ordinance.
14.4 Compliance with Applicable Laws. Contractor shall perform its obligations
hereunder in accordance with all applicable federal, state, local laws, ordinances,
rules, regulations (including but not limited to the following statutes: Americans with
Disabilities Act (ADA),Titles I, II and III of the ADA; Federal Immigration Reform and
Control Act of 1986 (as amended); and Title VII of the Civil Rights Act of 1964 (as
amended), and all orders and decrees of bodies or tribunals having jurisdiction or
authority which in any manner affect the performance of this Agreement. Contractor
shall indemnify, defend, and hold harmless the County and all its officers, agents,
servants and employees against any claim or liability arising from or based on the
violation of any such law, ordinance, rule, regulation, order or decree caused or
committed by Contractor, its representatives, Subcontractors, professional associates,
agents, servants or employees. Additionally, Contractor shall obtain and maintain at
its own expense all applicable licenses and permits to conduct business pursuant to
this Agreement from the federal government, State of Florida, County of Volusia or
municipalities when legally required and maintain same in full force and effect during
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the term of this Agreement.
14.5 Nondiscrimination and Americans with Disabilities Act. Contractor shall not
unlawfully discriminate against any person in the operations and activities in the use
or expenditure of the funds or any portion of the funds provided by this Agreement or
in the provision of goods or Services pursuant to this Agreement. Contractor agrees it
shall affirmatively comply with all applicable provisions of the Americans with
Disabilities Act (ADA) in the course of providing all goods and Services funded or paid
for by County, including Titles I, II and III of the ADA (regarding nondiscrimination on
the basis of disability), and all applicable regulations, guidelines, and standards. For
internet/web Services: For the purposes of this paragraph, any Services or products
offered to public via the internet or online must comply with WCAG 2.0 AA in order to
be deemed ADA compliant. The County will provide Contractor with prompt written
notice with respect to any ADA deficiencies of which the County is aware and
Contractor will promptly correct such deficiencies. If the County, the Department of
Justice or other governmental entity tasked with the enforcement of the ADA
("Enforcement Agency") notes any deficiency in the facilities, practices, services, or
operations of Contractor furnished or provided in connection with this Agreement,
Contractor shall, at no additional charge or cost to the County, immediately cure any
such deficiencies without delay to the satisfaction of such Enforcement Agency.
Contractor further agrees that it shall, to the extent permitted by law, indemnify,
defend, and hold harmless the County against any and all claims, sanctions, or
penalties assessed against the County, which claims, sanctions, or penalties arise or
otherwise result from Contractor's failure to comply with the ADA or WCAG 2.0 AA, for
online or internet Services or products. In performing under this Agreement,
Contractor agrees that it shall not commit an unfair employment practice in violation of
any state or federal law and that it shall not discriminate against any member of the
public, employee or applicant for employment for work under this Agreement because
of race, color, religion, gender, sexual orientation, age, national origin, political
affiliation, or disability and will take affirmative steps to ensure that applicants are
employed and employees are treated during employment without regard to race, color,
religion, gender, sexual orientation, age, national origin, political affiliation, or disability.
14.6 Drug Free Workplace. The County of Volusia is a drug-free and smoke-free
workplace. Contractor agrees that it shall provide a drug-free environment to its
personnel during the term of this Agreement and will comply, subject to the prior
receipt thereof, with the County's policies on drug-free and smoke-free work place, as
amended from time to time, during the term of this Agreement.
14.7 Employment of Illegal Aliens. Contractor certifies that it does not knowingly or
willingly and will not during the performance of the Agreement employ illegal alien
workers or otherwise violate the provisions of the Federal Immigration Reform and
Control Act of 1986, as amended.
14.8 Equal Opportunity; Disadvantaged Business Enterprises.
Contractor will not discriminate against any employee or applicant for employment
because of race, color, religion, gender, sexual orientation, age, national origin,
political affiliation, disability, or family status. Contractor will take affirmative action to
ensure that applicants are employed, and that employees are treated during
employment, without regard to their race, creed, color, sex or national origin. Such
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action shall include, but not be limited to the following: employment, upgrading,
demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates
of pay or other forms of compensation; and selection for training, including apprentice-
ship.
14.9 Compliance with FEMA 2 CFR 200.318-326 and Appendix II Contract
Provisions.
This Agreement and the products/services provided may be utilized in the event of
declared State/Federal Emergency, and Contractors shall comply with the applicable
sections of Exhibit III, Federal Contract Provisions.
14.10 Compliance with Federal E-Verify Regulations.
A. The Contractor shall utilize the U.S. Department of Homeland Security's E-Verify
system to verify the employment eligibility and work authorization status of all new
employees hired by the Contractor on or after the effective date of this Agreement
and thereafter during the remaining term of the Agreement, including
Subcontractor. If and to the extent the Agreement meets the criteria set forth at 48
C.F.R. § 52.222-54(e), the criteria of 48 C.F.R. § 52.222-54 are hereby
incorporated by reference into this Agreement as if fully set forth herein.
B. The Contractor covenants and agrees that if the County has a good faith belief that
Contractor has knowingly violated or if Contractor is found to have violated this
Section 14.10; Section 448.09(1), Florida Statutes; Section 448.095, Florida
Statutes; or the presidential Executive order and subsequent Federal Acquisition
Regulation (FAR) rule requiring federal contractors to use E-Verify, if applicable,
then the following shall be true: (i) such shall be a material breach of this
Agreement by Contractor; (ii) Contractor shall indemnify, defend, and hold
harmless the County from any fines or penalties levied by a government agency,
including the loss or repayment of grant funds by the County; (iii) the County may
terminate this Agreement immediately and without penalty and such termination
shall not be or be considered a breach of this Agreement; and (iv) Contractor shall
be liable for any additional costs incurred by the County as a result of the
termination of the Agreement. Contractor acknowledges and understands that if
the County terminates this Agreement in accordance with this Section 14.10, the
Contractor shall be ineligible for award of a public contract for at least one (1) year
after the date on which the Agreement was terminated.
C. Any subcontract entered into by Contractor with any Subcontractor performing
work under this Agreement shall include the following language: "The
Subcontractor shall utilize the U.S. Department of Homeland Security's E-Verify
system to verify the employment eligibility of all new employees hired by the
Contractor on or after the effective date of this Agreement and thereafter during
the remaining term of the Agreement." In accordance with Florida law, if Contractor
enters into a subcontract to perform work under this Agreement, Contractor shall
require from said Subcontractor an affidavit stating that the Subcontractor does not
employ, contract with, or subcontract with an unauthorized alien, and Contractor
shall maintain a copy of such affidavit for the duration of this Agreement and/or the
contract with the Subcontractor, whichever is longer. Contractor acknowledges
and agrees that if the County has a good faith belief that a Subcontractor knowingly
violated this Section 14.10 or Sections 448.09(1) or 448.095 of the Florida
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Statutes, but also has a good faith belief that Contractor otherwise complied with
this Section 14.10 and applicable law, the County shall promptly notify the
Contractor and order the Contractor to immediately terminate the Agreement with
the Subcontractor. Failure to comply with said order shall constitute a violation of
this Section 14.10 and the terms of Section 14.10.B shall apply.
14.11 Scrutinized Companies-FL Statute Section 287.135 and 215.473.
Contractor certifies that neither the undersigned entity, nor any of its wholly owned
subsidiaries, majority-owned subsidiaries, parent companies, or affiliates of such
entities or business associations, that exists for the purpose of making profit have been
placed on the Scrutinized Companies that Boycott Israel List created pursuant to s.
215.4725 of the Florida Statutes, or are engaged in a boycott of Israel.
In addition, if this Agreement amount equals or exceeds one million dollars, Contractor
certifies that neither the undersigned entity, nor any of its wholly owned subsidiaries,
majority- owned subsidiaries, parent companies, or affiliates of such entities or
business associations, that exists for the purpose of making profit are 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 s.215.473 of
the Florida Statutes, or are engaged in business operations in Cuba or Syria as defined
in said statute.
Contractor understands and agrees that the County may immediately terminate this
Agreement upon written notice if the undersigned entity(or any of those related entities
of respondent as defined above by Florida law) are found to have certified falsely or if
any of the following occur with respect to the company or a related entity: (i) it has
been placed on the Scrutinized Companies that Boycott Israel List, or is engaged in a
boycott of Israel, or (ii) for any contract for goods or services of one million dollars or
more, it has 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 it is found to have been engaged in business operations in Cuba or Syria.
15 MISCELLANEOUS PROVISIONS
15.1 Independent Contractor. Contractor shall provide the services required herein
strictly in an independent contractor relationship with the County and, except as
otherwise expressly set forth herein, is not, nor shall be, construed to be an agent or
employee of the County. Nothing herein shall create any association, partnership,
joint venture or agency relationship between Contractor and the County. The County
shall not provide vehicles or equipment to Contractor to perform the duties required
under this Agreement nor will the County pay for any business, travel, office, or training
expense or any other Agreement performance expense not specifically set forth in the
Scope of Services of this Agreement. Contractor is not exclusively bound to the County
and may provide Services to other private and public entities, but agrees and
covenants that any such service provided by Contractor or for such entities will not
conflict or otherwise interfere with Contractor's provision of Services to the County
under this Agreement.
15.2 Other Agencies. Contractor may, upon mutual agreement, permit any municipality or
other governmental agency to participate in the Agreement under the same prices,
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terms, and conditions.
It is understood that at no time will any city or municipality or other agency be obligated
for placing an order for any other city, municipality, or agency, nor will any city,
municipality, or agency be obligated for any bills incurred by any other city,
municipality, or agency. Further it is understood that each agency will issue its own
purchase order to Contractor.
15.3 Third Party Beneficiaries. Neither Contractor nor County intends to directly or
substantially benefit a third party by this Agreement. The Parties expressly
acknowledge that it is not their intent to create any rights or obligations in any third
person or entity under 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, except as otherwise
provided in this Agreement.
15.4 Amendments. No modification, change order, amendment, or alteration in the terms
or conditions contained herein shall be effective unless contained in a written
document prepared with the same or similar formality as this Contract and executed
by the award authority and Contractor.
15.5 Damages.
Due to the nature of the services to be provided and the potential impact to the County
for loss, the Contractor cannot disclaim consequential or special damages related to
the performance of this Contract. The Contractor shall be responsible and
accountable for any and all damages, directly or indirectly, caused by the actions or
inaction of its employees, staff, or Subcontractors. There are no limitations to this
liability.
15.6 Waiver of Claims. Once the Agreement expires, or final payment has been made,
Contractor shall have no more than thirty (30) calendar days to present or file any
claims against the County concerning the Agreement. After that period, the County
will consider Contractor to have waived any right to claims against the County
concerning the Agreement.
15.7 Safety. Contractor shall take the necessary precautions and bear the sole
responsibility for the safety of the methods employed in performing the work.
Contractor shall at all times comply with the regulations set forth by federal, state, and
local laws, rules, and regulations concerning "OSHA" and all applicable state labor
laws, regulations, and standards. Contractor shall indemnify and hold harmless the
County from and against all liabilities, suits, damages, costs, and expenses (including
attorney's fees and court costs) which may be imposed on the County because of
Contractor, Subcontractor, or supplier's failure to comply with the regulations.
15.8 Notice. All notice required under this Agreement shall be in writing and shall be sent
by certified United States Mail or national parcel service, postage prepaid, return
receipt requested, or by hand-delivery with a written receipt of delivery, addressed to
the party for whom it is intended at the place last specified. When sent in accordance
with the foregoing, notice shall be deemed delivered the sooner of (i) when received
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by the addressee or(ii)five (5) days after being deposited in the mail or with the parcel
service. The place for giving notice shall remain the same as set forth herein until
changed in writing in the manner provided in this article. For the present, the parties
designate the following:
In the case of County: with a copies of legal notices to:
County of Volusia County of Volusia
Attn: Director of Purchasing & Attn: County Attorney
Contracts Address: 123 W. Indiana Ave., Rm. 301
Address: 123 W. Indiana Ave., Rm. 302 DeLand, Florida 32720
DeLand, Florida 32720 Phone: 386-736-5950
Phone: 386-736-5935
In the case of Contractor: with a copy of legal notices to:
Commercial Risk Management, Inc. Commercial Risk Management, Inc.
President President
Attn: 2002 N. Lois Ave., Suite 600 Attn: 2002 N. Lois Ave., Suite 600
Address: Tampa, FL 33607 Address: Tampa, FL 33607
Phone: 813-289-3900 Ext. 305 Phone: 813-289-3900 Ext. 305
15.9 Assignment.
Contractor may not assign or otherwise convey Contractor's rights and/or obligations
under this Agreement without obtaining the County's prior written consent, which
consent the County may withhold, limit and/or condition in the County's sole discretion,
including, but not limited to, requiring Contractor or his/her proposed successor in
interest to post a performance bond. Any consent by the County under this article shall
be by written Amendment to the Agreement in a form and substance specified by the
County in its sole discretion. If Contractor desires to assign or otherwise convey its
rights and/or obligations under this Agreement, Contractor shall provide the County
with a written request for County's consent no less than thirty (30) days prior to the
assignment's proposed effective date. Failure to provide such notice may result in the
County assessing a processing fee of Five Hundred Dollars (US $500.00); however,
payment of such fee shall not entitle Contractor to the County's acceptance or approval
of its request for assignment.
Nothing herein shall preclude the right of the County to waive its rights under this
Section but no waiver shall be granted by the County without a written and duly
executed amendment to the Agreement.
15.10 Conflicts. Neither Contractor nor its employees shall have or hold any continuing or
frequently recurring employment or contractual relationship that is substantially
antagonistic or incompatible with Contractor's loyal and conscientious exercise of
judgment related to its performance under this Agreement. Contractor further agrees
that none of its officers or employees shall, during the term of this Agreement, serve
as an expert witness against County in any legal or administrative proceeding in which
he, she, or Contractor is not a party, unless compelled by court process. Further,
Contractor agrees that such persons shall not give sworn testimony or issue a report
or writing, as an expression of his or her expert opinion, which is adverse or prejudicial
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to the interests of County in connection with any such pending or threatened legal or
administrative proceeding unless compelled by court process. The limitations of this
section shall not preclude Contractor or any persons in any way from representing
themselves, including giving expert testimony in support thereof, in any action or in
any administrative or legal proceeding. In the event Contractor is permitted pursuant
to this Agreement to utilize Subcontractors to perform any Services required by this
Agreement, Contractor agrees to require such Subcontractors, by written Agreement,
to comply with the provisions of this section to the same extent as Contractor.
15.11 Audit Right and Retention of Records. The County shall have the right to audit the
books, records, and accounts of Contractor and its Subcontractors that are related to
this Agreement. Contractor and its Subcontractors shall keep such books, records,
and accounts as may be necessary in order to record complete and correct entries
related to the Agreement. Contractor shall preserve and make available, at reasonable
times for examination and audit by the County, all financial records, supporting
documents, statistical records, and any other documents pertinent to this Agreement
for a retention period of five (5)years after completion or termination of this Agreement,
and any renewals, as required by Item 65, General Records Schedule GS1-SL for
State and Local Government Agencies, effective February 19, 2015 and the Florida
Public Records Act (Chapter 119, Florida Statutes). Contractor shall, by written
Agreement, require its Subcontractors to agree; (i)to the requirements and obligations
of this Article 15.11 — Audit Right and Retention of Records (ii) to be subject to
applicable privacy and confidentiality laws and regulations and (iii) Contractor's privacy
and confidentiality policies and procedures. All audits must be performed at
Contractor's home office in Tampa, FL. Nothing in this Article 15.11 — Audit Right and
Retention of Records shall require Contractor to violate any laws applicable to
Contractor as a provider of professional workers compensation third party
administrative services.
15.12 Ownership of Work Product.
Contractor agrees that the County shall have exclusive ownership of all reports,
documents, designs, ideas, materials, concepts, plans, and work product developed
for or provided to the County in connection with the Agreement, and all copyrights,
trade secrets rights and other intellectual property rights relating thereto (collectively
"the Intellectual Property"). Contractor hereby assigns and transfers all rights in the
Intellectual Property to the County. Contractor further agrees to execute and deliver
such assignments and other documents as the County may later require to perfect,
maintain and enforce the County's rights as sole owner of the Intellectual Property,
including all rights under patent and copyright law.
15.13 References to County or Contractor. Contractor agrees that during the term of this
Agreement, except as provided herein, Contractor may not reference County in
Contractor's website, and/or press releases, and, may not place County's name or
logo on Contractor's website or in collateral marketing materials relating to Contractor's
products and Services without prior review and written approval by County. Further,
Contractor agrees that it may not use County's name, logo or any trademarks
(including in any press releases, customer "case studies," and the like) without
County's prior written consent. Termination or expiration of this Agreement shall not
affect Contractor's obligation in this regard and such obligation shall survive the
termination or cancellation of this Agreement.
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15.14 Force Majeure. Neither party shall be liable for any failure or delay in the performance
of its obligations under the Agreement to the extent such failure or delay necessarily
results from the occurrence of a Force Majeure Event beyond the control or reasonable
anticipation of either party, including, but not limited to, compliance with any
unanticipated government law or regulation not otherwise in effect at the time of
execution of this Agreement, acts of God, acts of domestic or international terrorism,
any virus, bacterium, or other microorganism capable of inducing physical distress,
illness, or disease, whether due to a pandemic or otherwise, unforeseeable
governmental acts or omissions, fires, strikes, natural disasters, wars, riots,
transportation problems, and/or any other unforeseeable cause whatsoever beyond
the reasonable control of the parties (and such cause being referred to as a "Force
Majeure Event"). Accordingly, the parties further agree that:
15.14.1 Upon the occurrence of Force Majeure Event, the non-performing party shall
be excused from any further performance of those obligations under this
Agreement that are affected by the Force Majeure Event for as long as (a)
the Force Majeure Event continues; and (b) the non-performing party
continues to use commercially reasonable efforts to recommence
performance whenever and to whatever extent possible without delay.
15.14.2 Upon the occurrence of a Force Majeure Event, the non-performing party
shall notify the other party of the occurrence of such event and describe in
reasonable detail the effect(s) of such event upon the party's performance of
its obligations and duties pursuant to this Agreement. Such notice shall be
delivered or otherwise communicated to the other party within three (3)
business days following the failure or delay caused by the Force Majeure
Event, or as soon as possible after such failure or delay if the Force Majeure
Event precludes the non-performing party from providing notice within such
time period.
15.14.3 In the event of a Force Majeure Event, the time for performance by the parties
under the applicable Statement of Services shall be extended for a period of
time equal to the time lost by reason of such cause through execution of a
change order pursuant to the terms of the Agreement.
15.15 Bankruptcy Rights of County. All rights and licenses granted under or pursuant to
this Agreement or any attachments hereto by Contractor to County are, and shall
otherwise be deemed to be, for purposes of Section 365 (n) of the United States
Bankruptcy Code (the "Code"), or replacement provision therefore, licenses to rights
to "intellectual property" as defined in the Code. The parties agree that County, as
licensee of such rights under this Agreement, shall retain and may fully exercise all of
its rights and elections under the Code. The parties further agree that, in the event of
the commencement of a bankruptcy proceeding by or against Contractor under the
Code, County shall be entitled to retain all of its rights under this Agreement.
15.16 Waiver of Breach and Materiality. 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
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this Agreement.
15.17 Severance. In the event this Agreement or a portion of this Agreement is found by a
court of competent jurisdiction to be invalid, the remaining provisions shall continue to
be effective to the extent practicable unless County or Contractor elects to terminate
this Agreement.
15.18 Entire Agreement. This Agreement contains the entire agreement between
Contractor and County. Any modifications to this Agreement shall not be binding
unless in writing and signed by both parties.
15.19 Applicable Law, Venue 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. Jurisdiction over and venue for any controversies or legal issues arising out
of this Agreement shall, if in state court, be exclusively in the 7th Judicial Circuit in and
for the County of Volusia, Florida, or, if in federal court, be exclusively in the Middle
District of Florida, Orlando Division. By entering into this Agreement, Contractor and
the County hereby expressly waive any rights either party may have to a trial by jury
of any civil litigation related to this Agreement, and, unless otherwise expressly
provided herein, each agrees to bear its own costs and attorney's fees relating to any
dispute arising under this Agreement.
15.20 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. The Parties agree that there is no commitment, agreement, or understanding
concerning the subject matter of this Agreement that is not contained in this written
document. Accordingly, the Parties agree that no deviation from the terms hereof shall
be predicated upon any prior representation or agreement, whether oral or written.
16 ELECTRONIC SIGNATURES
Vendor acknowledges that Susan Theis, President (the "Authorized Signatory") is authorized
to execute contracts/agreements with the County of Volusia and any affixed electronic or
conformed signature of the Authorized Signatory shall be the act of and attributable to the
Authorized Signatory. By signing this Agreement electronically, the Authorized Signatory does
thereby adopt the electronic or conformed signature as his or her own and designates a copy
of same for use as an official record by the County of Volusia.
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DocuSign Envelope ID:4960EE1 F-0197-4B51-A2C0-8DF37EFA11 EC
17 SIGNATURES
IN WITNESS WHEREOF, the parties have made and executed this Agreement for
Professional Workers Compensation Third Party Administration Services on the date last
written below.
Attest: COUNTY • r �• USIA
/ BY: ifs /i — .
ebrge Recktenwald /4-r'rey . Brower
County Manager County Chair
Date: VI Ci Date: ICI -903D
Attest: , oocusi nedby: COMMERCIAhacI bMANAGEMENT, INC.
Lovit, Pbv<t, S�SaaA �tt iS
1/4. —1427A7C4FAFA4A5 BY: \._117c1pasre8n3ee7
Lorie Dove Susan Theis
Chief Operations Officer President
3/28/2022 I 15:49:13 EDT 3/28/2022 I 13:18:54 EDT
Date: Date:
CC Date: 1+\IC\.' n
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