09/16/2009 Agreement
DANNY L. KOLHAGE
CLERK OF THE CIRCUIT COURT
DA TE:
October 5, 2009
TO:
Maria Z. Fernandez-Gonzalez
Senior Administrator-Benefits
Pamela G. HanC~c.
FROM:
At the September 16,2009, Board of County Commissioner's meeting the Board granted
approval an,l authorized execution of a three year Agreement for Administrative Services
between Monroe County and Employers Mutual, Inc. to provide Third Party Claims
Administration for the Monroe County Workers' Compensation Program.
Enclosed is a copy of the above-mentioned for your handling. Should you have any
questions please do not hesitate to contact this office.
cc: County Attorney
Finance
File
AGREEMENT FOR ADMINISTRATIVE SERVICES
THIS AGREEMENT is made and entered into by and between Monroe County Board
of County Commissioners ("BOCC"),,-hereinafter referred to as the Client, and Employers
Mutual Inc., 700 Central Parkway, Stuart, FL 34994, a Florida Corporation, hereinafter referred
to as Administrator.
WITNESSETH
WHEREAS, the Client desires to engage the services of Administrator to provide claim
administration services for workers compensation and liability claims as described herein on
behalf of the Client;
WHEREAS, Administrator is qualified and desires to provide the aforementioned services
on behalf of the Client in accordance with this Agreement; and
NOW, THEREFORE, for and in consideration of the mutual covenants contained herein,
the parties hereto do mutually agree as follows:
The above recitals are incorporated herein as if set forth here below.
I. SERVICES
A. CLAIMS ADMINISTRATION SERVICES
Administrator will provide the following and such other services as may be considered
necessary and which are mutually acceptable to both parties:
(i) Supervise and administer the open claims in compliance with applicable laws, rules
and regulations governing the administration of self-insurance programs and
imposed by the State of Florida. Claims will be timely adjusted and Administrator
will be responsible for penalties if the penalty arises from the neglect of the
Administrator.
(ii) Provide qualified and experienced personnel capable of servicing the open claims of
the Client. Administrator will maintain an office with toll-free telephone services
and experienced employees, with adequate staffing levels to provide the services
required under this Agreement.
(iii) Complete processing of loss adjustments, investigations and settlements falling
within the self-insured retention level. Submissions of all investigation reports,
legal actions, court orders, or awards shall be provided to the Client together with
recommendations to be taken in the event claims exceed the limits of authority of
Administrator. Administrator must obtain prior approval from the Client, for all
settlements.
(iv) Coordinate investigations of and manage litigated claims with defense attorneys.
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(v) Develop subrogation possibilities and assist in the collection of same. Submit
claims to reinsurance/excess carriers and assist in the recovery of such benefits (if
any) on behalf of Client.
(vi) In the event of termination of the contract, Administrator shall not have any
responsibility or obligation to handle any claims beyond sixty (60) days after the
termination date.
II. RESPONSIBILITIES OF THE CLIENT
The Client shall have and perform the following duties, obligations, and responsibilities to
Administrator.
(i) Obli2ation & Responsibility for Payment. The Client has the sole obligation
and responsibility for funding the payment of claims made against the Client.
Administrator assumes no duty to fund any such claims at any time and shall have
no obligation to advance funds for such payment.
(ii) Deposit Account. Prior to the commencement of the Agreement, the Client shall
establish a bank account at a bank of the Client's choosing and this account will be
used to process claim checks. The Client will be responsible for the proper
funding of this account as well as all banking fees, bank interfaces and the bank
reconciliations. Administrator shall use the funds deposited by the Client into the
account to pay claim settlements within the discretionary settlement authority limit
or as otherwise authorized by the Client, and to pay interim claim payments,
indemnity payments, medical expenses and allocated expenses.
(iii) Mana2ement of Account. It is the Client's responsibility to establish and
replenish the bank account with funds sufficient to cover all claim payments. The
Client may, at its discretion, increase or decrease the minimum funding levels
based on actual claim activity. The bank account shall remain in effect until all
claims activity ceases under this Agreement.
(iv) Allocated Loss Adiustment Expense. Coverage costs shall include but not be
limited to: cost of medical and/or indemnity payments, outside investigation of
claims, surveillance, vocational rehabilitation, case management, legal fees, court
or hearing costs, depositions, documents and exhibits, witness fees, photography
and other incidental and special costs, as approved by Client prior to incurring the
expense. Coverage costs shall be borne by the Client as normal claims related
expenditures and shall be charged against the Deposit Account.
(v) Instructions from Client. Administrator shall duly consider all written notices
and recommendations made by Client relative to the administration of claims,
including medical and litigation services with the understanding that the final
authority rests with the Client. Administrator shall not be responsible or liable for
any action or inaction of the Client, which is contrary to a lawful written
recommendation or instruction by Administrator, applicable by law, and/or
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workers compensation law that causes any claim to not be properly adjusted,
administered, and/or processed. Administrator will handle claims in accordance
with the written handling procedures as produced by the Client.
(vi) Audits. Client has the right to independently or via outside auditors review the
Administrator's performance to insure compliance with the contract
requirements and to insure the financial integrity of the program.
III. ADMINISTRATOR'S RESPONSIBILITIES
Administrator shall have no responsibility, risk, liability or obligation for the funding of
claims, losses, or liabilities. The responsibility and obligation for funding the program exposures
shall be solely and totally the responsibility of the Client.
Administrator shall be liable for the recovery of claim processing errors arising from
Administrator's performance pursuant to the terms of this Agreement, excepting liability for any
such error that is reasonable, made in good faith, and within acceptable industry standards.
Administrator shall use diligent efforts toward the recovery of any loss therefrom.
Administrator's liability, if any, shall be limited to the amount in excess of the claim amount(s)
payable under the terms of the Agreement.
It is understood and agreed that Administrator is and shall remain an independent
contractor with respect to the services being performed by the Administrator pursuant to this
Agreement and shall not for any purpose be deemed an employee of the Client, nor shall the
relationship of the parties be deemed that of partners or joint ventures. Administrator does not
assume an)l responsibility, risk, liability, or obligation for the general policy direction of the
program, the adequacy of the funding thereof, or any act or omission or breach of duty by parties
other than Administrator. Administrator shall not be deemed an insurer, underwriter or
guarantor with respect to any expenses payable under the program. Administrator agrees to
maintain the insurance requirements as set forth in the Client's Request for Proposal ("RFP")
throughout the entirety of the life of this contract, including naming the Client as an additional
insured in its general liability contract.
The County reserves the right to approve or disapprove any subcontractor utilized by
Administrator, including but not limited to field case managers.
IV. TERM, DEFAULT AND TERMINATION
(i) Term. The initial term of the Agreement will be for three (3) years beginning on
September 20, 2009 and continuing until September 30, 2012. Thereafter, the
Agreement shall be automatically renewed for successive one-year periods until
either party gives notice of cancellation in accordance with the terms set forth
below.
(ii) Default. The failure of either party to comply with any provision of this
Agreement will place that party in default. Prior to terminating the Agreement,
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the non-defaulting party will notify the defaulting party in writing. This
notification will make specific reference to the provision(s) the defaulting party
failed to comply with, the exact nature of the default, and the action that needs to
occur to correct the default. The non-defaulting party will give the defaulting
party a minimum of ten (10) business days to correct the default. If the default is
not corrected within the allotted time, the non-defaulting party shall be permitted
to terminate this Agreement, effective upon the receipt by the defaulting party of a
written termination notice.
(iii) Bankruptcv. If either party files a petition for bankruptcy or a petition or answer
seeking reorganization, becomes or is insolvent or bankrupt, has a receiver
appointed for its benefit, admits in writing its inability to pay its debts as they
mature, or makes an assignment for the benefit of creditors, the other party may
immediately terminate this Agreement.
(iv) Termination. It is understood and agreed that either party shall have the right to
terminate this Agreement on any date as follows:
(a) the Client giving Administrator not less than ninety (90)
days advance written notice of termination, with or without cause.
(b) Administrator giving the Client not less than ninety (90) days advance written
notice of termination.
Administrator may, at its sole discretion, terminate this Agreement in the event
that Client fails to properly fund the program within fifteen (15) days of receiving
a written request to do so from Administrator.
Upon termination by either party, Administrator shall, upon the request and at the
expense of the Client, provide computer runs detailing various aspects of the
Client's program. Upon termination, the Client understands and agrees that,
except where there is evidence of negligence or willful misconduct or fraud, the
Administrator is released from all liability, loss or damage arising after the date of
termination of this Agreement in any manner out of the performance by
Administrator pursuant to the terms of this Agreement.
It is understood that at termination of the Agreement, Administrator shall not have
any responsibility or obligation to handle any incurred claims beyond the
termination date except as set forth in paragraph I. A. (vi), above.
v. ADMINISTRATOR FEES
Administrator shall receive consideration in accordance with the following:
Client shall pay Administrator a flat rate of$67,500.00 per year for the first year of claims
adjusting. Any increases in the fee are outlined in Attachment "A". The amount will be paid in
monthly installment payments due at the beginning of each month. Payment will be made
according to the Florida Local Government Prompt Payment Act. Any request for payment must
be in a form satisfactory to the Clerk of Courts for Monroe County (Clerk). The request must
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describe in. detail the services performed and the payment amount requested.
Additionally Client will pay Administrator for the following services: As stated in
"Attachment A".
If the Client, for any reason whatsoever, fails to make a required fee payment or
necessary contribution for claim payment as requested by Administrator on a timely basis,
Administrator may suspend the performance of its services to the Client until such time as the
Client mak.es the proper remittance.
Continuation of this Agreement is specifically made contingent upon annual
appropriation by Monroe County.
VI. OWNERSHIP AND RETENTION OF
CLAIM FILES AND OTHER DOCUMENTS
Administrator will retain all claim files during the time the Agreement is in effect.
Subject to the foregoing, Administrator will make available to the Client for copying, at Client's
expense, or inspection any records relating to any claim files serviced pursuant to this Agreement
upon written request of the Client. Administrator will also make claim files available to any
other third party as required by and in accordance with applicable law. All claim files created
pursuant to this Agreement are the sole property of Client. Administrator shall maintain all
books, records, and documents directly pertinent to performance under this Agreement in
accordance with generally accepted accounting principles consistently applied. Each party to
this Agreement or their authorized representatives shall have reasonable and timely access to
such records of each other party to this Agreement for public records purposes during the term of
the agreement and for five years following the termination of this Agreement. Ifan auditor
employed by the County or Clerk determines that monies paid to Administrator pursuant to this
Agreement were spent for purposes not authorized by this Agreement, the Administrator shall
repay the monies together with interest calculated pursuant to Section 55.03 of the Florida
Statutes, running from the date the monies were paid to Administrator.
Upon termination of the Agreement, Administrator will be responsible for the retention
and storage of all claim files. Client is also responsible for all shipping costs, if any, associated
with transpc)rting of claim files.
VII. NOTICE
Whenever written notice is required under the terms of this Agreement, it shall be delivered
either in person or by certified mail, return receipt requested to the appropriate party. Notice by
registered mail shall be addressed as follows:
ADMINISTRA TOR
CLIENT
Employers Mutual, Inc.
700 Central Parkway
Stuart, FL 34994
A Tl'N: President
Monroe County BOCC
Maria Fernandez-Gonzalez, Sr. Administrator, Benefit
1100 Simonton St., Suite 2-268
Key West, Florida 33040
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VIII. NON-ASSIGNMENT
The: provisions of this Agreement supersede any prior Agreements or understandings to
the contrary. No party hereto shall have the right to assign this agreement without the written
consent of the other party, which will not be unreasonably withheld.
IX. NON TRANSFER OF POWERS
Nothing contained in this Agreement shall be construed to constitute a Transfer of
Powers in any way whatsoever. This Agreement is solely an Agreement for provision of
servIces.
X. ENFORCEMENT
The County and Administrator agree that in the event any cause of action or
administrative proceeding is initiated or defended by any party relative to the enforcement or
interpretation of this Agreement, the prevailing party shall be entitled to reasonable attorney's
fees, and court costs, as an award against the non-prevailing party. Mediation proceedings
initiated and conducted pursuant to this Agreement shall be in accordance with the Florida Rules
of Civil Procedure and usual and customary procedures required by the Circuit Court of Monroe
County.
This Agreement shall be governed by and construed in accordance with the laws of the
State of Florida applicable to Agreements made and to be performed entirely in the State.
In tIle event that any cause of action or administrative proceeding is instituted for the
enforcement or interpretation of this Agreement, the County and Contractor agree that venue
shall lie in the appropriate court or before the appropriate administrative body in Monroe
County, Florida. This agreement is not subject to arbitration.
XI. SEVERABILITY
Should any provision of this Agreement be declared invalid by a Court of competent
jurisdiction, same shall be deemed stricken herefrom and all other terms and conditions of this
Agreement shall continue in full force and effect as if the invalid provision had never been made
a part hereof. The County and Administrator agree to reform the Agreement to replace any
stricken provision with a valid provision that comes as close as possible to the intent of the
stricken provision.
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XII. NON-WAIVER
No delay by either party in enforcing any covenant or right hereunder shall be deemed a
waiver of such covenant or right, and no waiver of any particular provision hereof shall be
deemed as waiver of any other provision or a continuing waiver of such particular provision, and
except as so expressly waived, all provisions hereof shall continue in full force and effect.
XIII. ENTIRE AGREEMENT
The: Client's RFP-4150-08-JE and the Administrator's corresponding proposal and
amendments (if any) are hereby incorporated into this agreement. This Agreement constitutes the
entire understanding of the parties with respect to provision of services. It may not be modified
nor any of its provisions waived unless such modifications and/or waiver is in writing and is
agreed to and signed by both parties and approved by the Monroe County Board of County
Commissioners.
XIV. THIRD PARTY BENEFICIARIES
There are no third party beneficiaries of this Agreement, either intended or implied.
XV. DEFENSES
(i) Administrator agrees to defend, indemnify, and hold harmless the County, its
Mayor, the Board of County Commissioners, its employees, and any other agents,
individually or collectively:
(a) for any penalty or fine the Client shall suffer that is solely the fault of
Administrator;
(b) for the recovery of claims processing errors arising from Administrator's
performance, pursuant to the terms of this agreement. Administrator shall use
diligent efforts toward the recovery of any loss therefrom. Administrator's
liability, if any, shall be limited to the amount in excess of the claim
amount(s) payable under the terms of the agreement.
(c) for any claims resulting from errors, omissions or negligence on the part of
Administrator unless the actions of Administrator were taken at the direction
of the Client or as the result of the Client's negligence.
(ii) Both parties acknowledge that Client has the final authority in the administration
of this program.
(iii) Both parties acknowledge that neither Client nor Administrator has the authority
or capacity to affect or force the settlement of a claim by any person making a
claim against client or any insurance company providing benefits as a part of
Client's program.
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XVI. OTHER PROVISIONS
(i) Employees Subject to County Ordinance Nos. 010- and 020-1990. The
Administrator warrants that it has not employed, retained or otherwise had act on
its behalf any former County officer or employee subject to the prohibition of
Section 2 of Ordinance No. 010-1990 or any County officer or employee in
violation of Section 3 of Ordinance No. 020-1990. For breach or violation of this
provision the County may, in its discretion, terminate this agreement without
liability and may also, in its discretion, deduct from the agreement or purchase
price, or otherwise recover the full amount of any fee, commission, percentage,
gift, or consideration paid to the former County officer or employee.
(ii) Convicted Vendor. A person or affiliate who has been placed on the convicted
vendor list following a conviction for public entity crime may not submit a bid on
a Agreement with a public entity for the construction or repair of a public building
or public work, may not perform work as a Administrator, supplier, subcontractor,
or Administrator under Agreement with any public entity, and may not transact
business with any public entity in excess of the threshold amount provided in
Section 287.017 of the Florida Statutes, for the Category Two for a period of36
months from the date of being placed on the convicted vendor list.
(iii) Binding Effect. The terms, covenants, conditions, and provisions of this
Agreement shall bind and inure to the benefit of the County and Administrator
and their respective legal representatives, successors, and assigns.
(iv) Authority. Each party represents and warrants to the other that the execution,
delivery and performance of this Agreement have been duly authorized by all
necessary County and corporate action, as required by law.
(v) Cooperation. In the event any administrative or legal proceeding is instituted
against either party relating to the formation, execution, performance, or breach of
this Agreement, County and Administrator agree to participate, to the extent
required by the other party, in all proceedings, hearings, processes, meetings, and
other activities related to the substance of this Agreement or provision of the
services under this Agreement. County and Administrator specifically agree that
no party to this Agreement shall be required to enter into any arbitration
proceedings related to this Agreement.
(vi) Nondiscrimination. The parties agree that there will be no discrimination against
any person, and it is expressly understood that upon a determination by a court of
competent jurisdiction that discrimination has occurred, this Agreement
automatically terminates without any further action on the part of any party,
effective the date of the court order. The parties agree to comply with all Federal
and Florida statutes, and all local ordinances, as applicable, relating to
nondiscrimination. These include but are not limited to: 1) Title VII of the Civil
Rights Act of 1964 (PL 88-352), which prohibit discrimination in employment on
the basis of race, color, religion, sex, and national origin; 2) Title IX of the
Education Amendment of 1972, as amended (20 USC SS 1681-1683, and 1685-
1686), which prohibits discrimination on the basis of sex; 3) Section 504 of the
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Rehabilitation Act of 1973, as amended (20 USC ~ 794), which prohibits
discrimination on the basis of handicaps; 4) The Age Discrimination Act of 1975,
as amended (42 USC ~~ 6101-6107), which prohibits discrimination on the basis
of age; 5) The Drug Abuse Office and Treatment Act of 1972 (PL 92-255), as
amended, relating to nondiscrimination on the basis of drug abuse; 6) The
Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and
Rehabilitation Act of 1970 (PL 91-616), as amended, relating to
nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public
Health Service Act of 1912, ~~ 523 and 527 (42 USC ~~ 690dd-3 and 290ee-3),
as amended, relating to confidentiality of alcohol and drug abuse patent records;
8) Title VIII of the Civil Rights Act of 1968 (42 USC ~~ 3601 et seq.), as
amended, relating to nondiscrimination in the sale, rental or financing of housing;
9) The Americans with Disabilities Act of 1990 (42 USC ~~ 1201), as amended
from time to time, relating to nondiscrimination in employment on the basis of
disability; 10) Monroe County Code Chapter 13, Article VI, which prohibits
discrimination on the basis of race, color, sex, religion, national origin, ancestry,
sexual orientation, gender identity or expression, familial status or age; and 11)
any other nondiscrimination provisions in any federal or state statutes which may
apply to the parties to, or the subject matter of, this Agreement.
(vii) Code of Ethics. County agrees that officers and employees of the County
recognize and will be required to comply with the standards of conduct for public
officers and employees as delineated in Section 112.313, Florida Statutes,
regarding, but not limited to, solicitation or acceptance of gifts; doing business
with one's agency; unauthorized compensation; misuse of public position,
conflicting employment or contractual relationship; and disclosure or use of
certain information.
(viii) No SolicitationIPayment. The County and Administrator warrant that, in respect
to itself, it has neither employed nor retained any company or person, other than a
bona fide employee working solely for it, to solicit or secure this Agreement and
that it has not paid or agreed to pay any person, company, corporation, individual,
or firm, other than a bona fide employee working solely for it, any fee,
commission, percentage, gift, or other consideration contingent upon or resulting
from the award or making of this Agreement. For the breach or violation of the
provision, the Administrator agrees that the County shall have the right to
terminate this Agreement without liability and, at its discretion, to offset from
monies owed, or otherwise recover, the full amount of such fee, commission,
percentage, gift, or consideration.
(ix) Non-Waiver of Immunity. Notwithstanding the provisions of Sec. 768.28,
Florida Statutes, the participation of the County and the Administrator in this
Agreement and the acquisition of any commercial liability insurance coverage,
self-insurance coverage, or local government liability insurance pool coverage
shall not be deemed a waiver of immunity to the extent of liability coverage, nor
shall any Agreement entered into by the County be required to contain any
provision for waiver.
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(x) Attestations. Administrator agrees to execute such documents as the County may
reasonably require, including, but not being limited to, a Public Entity Crime
Statement, an Ethics Statement, and a Drug-Free Workplace Statement, Lobbying
and Conflict of Interest Clause, and Non-Collusion Agreement.
IN WITNESSES WHEREOF, the parties hereunto set their hands and seals this ".dt.day o~
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ATTACHMENT "A"
MONROE County
WORKERS' COMPENSATION
THIRD PARTY CLAIMS ADMINISTRATION
\,rORKF=I~S" (:OI\'1PI~NSj\ l~ION PI~ICING
Employers Mutual, Inc. (EMI) will perform the Third Party Claims Administration for Monroe
County for the following fee schedule.
EMI \\Jrill have the workers' compensation claims allocated individually to a lost time and
medical only adjuster. EMI will perform this for an annual fee of$67,500.00.
This rate for the annual fee is guaranteed for Y ear 1 (one) of the contract. Thereafter, the
annual fee will increase two per cent (2.5%) in each of Years 2 and 3 of the contract and will
increase five per cent (5%) in any subsequent renewal year. The annual fee may be paid in
twelve equal installments. All other rates and fees will remain the same during the initial
term and any subsequent renewals.
In addition, EMI will take over and perform the claims administration of existing open
claims for a one-time fee of $50,000. This all-inclusive fee includes the electronic data
transfer of existing claims information, the physical transfer of any open paper files and the
establishment of all banking structure. As we understand there are numerous budgetary
issues existing for governmental entities in the currently economic environment, EMI is
willing to accept payment of this fee over a three year period with three (3) annual
installnlents.
All Dricine is based on a life of contract service aereement
In addition, to the above services Employers Mutual, Inc. will provide the following services at
the stated rate per the request of the Monroe County Board of County Commissioners.
. Medical Bill Re-pricing: $1.50 per line
. Net,;vork Access: 25% of savings
. Telephonic Case Management: $85 per hour
. Fiel,} Case Management: $95 per hour
. Hospital Bill Audits: 25% of savings
. Subrogation 10% of recovery (cap is negotiable)
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Ernploye,",s tvtutuel. ...."lc.
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Allocated expenses (allocated to the claims files) include those paid to outside firms, such as
contract adjusters, private investigators, surveillance, legal and court reporters.
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