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01/01/2018 Agreement COUNTY ADMINISTRATOR CONTRACT SUMMARY FORM FOR CONTRACTS LESS THAN $50,000.00 Contract with: Discove Benefits, Inc. Contract # Effective Date: JANUARY 1. 2018 Expiration Date: Contract Purpose/Description: Administrative Services Agreement between MCBOCC and Discovery Benefits. Inc. to administer the County's HSA (health savings account) for participants in the HD /HP Plan. Effective date 1/1/18; agreement automatically renews annually. 60 days termination notice required Contract is Original Agreement Contract Amendment /Extension Renewal Contract Manager: MARIA GON7Al FZ 444R FMPI OYFE SFRVICFS /STOP #1 (Name) (Ext.) (Department /Stop #) CONTRACT COSTS Total Dollar Value of Contract: $ APPROX. Current Year Portion: $ (must be less than $50,000) (If multiyear agreement then $5,000 requires BOCC approval, unless the total cumulative amount is less than $50,000.00). Budgeted? Yea Account Codes: 502 -08008 - 530490 - - Grant: $ - - - - County Match: $ - - - - ADDITIONAL COSTS Estimated Ongoing Costs: $ /yr For: (Not included in dollar value above) (e.g. maintenance, utilities, janitorial, salaries, etc.) CONTRACT REVIEW - Changes Date Out Date / In Needed Revi Department Head 7(2t /i j Yes❑ No ' 7 r Risk Management C - d• (2 - F b Yes o . Ou 4 qq ( �S O.M.B./Purchasing 9-4)-(1214 Yes r A . . , 49 County Attorney ` l' �`/ ii c8 y y d���� Yes No Comments: MONROE COUNTY BOARD OF COUNTY COMMISSIONERS (MCBCC) (30974) Fee Schedule Effective Date 01/01/2018 or later if services start different months Fee Amount Fee Minimum Frequency Bill To HSA - Monthly $2.50 $25.00 Monthly Customer Fees per HSA Participant per month Includes Benefits Debit Card Spouse, dependent, and replacement Benefits Debit Cards available at no additional fee Fees are guaranteed until 01/01/2021 ( "Rate Expiration Date "). Printing and postage are included for standard material and mailings. Additional charges /fees will apply for non - standard mailings and /or expedited requests. Additional fees may apply for non - discrimination testing services. WebEx meetings are included at no additional fee. Enrollment meetings (optional) are $350 per day plus travel expenses. If Employer /Customer has contracted with a third party whereby the third party pays DBI's fees on Employer's behalf, DBI's fees will be invoiced to that third party and are due within thirty (30) days after the date the invoice is received. If the third party fails to pay DBI, Employer remains responsible to pay DBI's fees. Fee rates may be based on a third -party discount. If DBI's fees are no longer to be paid by the third party on Employer's behalf, guarantees could be voided and the fee schedule revised. 254202455 30974 PAGE 2 OF 21 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS(MCBCC)(30974) Discovery Benefits. ADMINISTRATIVE SERVICES AGREEMENTS The attached agreements (the"Agreements") are entered into by and between MONROE COUNTY BOARD OF COUNTY COMMISSIONERS (MCBCC) ("Employer") and Discovery Benefits, Inc. ("DBI") as of 01/01/2018 ("Effective Date"). Agreements Attached: N/A COBRA N/A Direct Billing N/A Premium Conversion N/A Reimbursement Account x Health Savings Account N/A Arrears Billing N/A Education Assistance Program N/A Discovery Tests' Non-Discrimination Testing Subscription N/A HIPAA Business Associate Agreement(signed for by the Employer as the Sponsor on behalf of and as a representative of the Employer health plan) AUTHORIZATION AND SIGNATURE Neither party to Agreements,when dealing with the other party in relation to the Plan,will be obliged to determine the other parry's authority to act pursuant to Agreements. Furthermore, the individuals executing the Agreements on behalf of DBI and Employer do each hereby represent and warrant that: they are duly authorized by all necessary action to execute the Agreements on behalf of their respective principals; and the execution and delivery of the Agreements and the consummation of the transactions herein provided have been duly approved by Employer and DBI and do not violate any agreements to which Employer or DBI is a party or otherwise bound. If legal agreements are not signed and returned to DBI prior to the date our services commence, consent to the contract terms and conditions will be presumed and deemed to have been obtained upon submission of Employer data through the DBI portal,the DBI Design Guide or any other DBI authorized format. The Agreements are accepted and entered into by the parties as of the Effective Date. C-)6"--4— ' .j'c • Signed for Employer by Signed for DBI by _____s_. Roman G esi r. ‘...j_____ Suzanne Rehr Prin ed Name Chief Compliance Officer/EVP PAGE 10F21 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS (MCBCC) (30974) Discovery Benefits HEALTH SAVINGS ACCOUNT ADMINISTRATIVE SERVICES AGREEMENT RECITALS Health Savings Accounts ( "HSAs') will be established by or on behalf of Employer's employees ( "Employees "). Employer desires DBI to assist in its administration of the HSAs on the terms outlined below. • DBI will perform certain recordkeeping and nondiscretionary administrative services; • Contributions made by or on behalf of Employees are placed in a DBI account and then transferred to the account for the HSA; and • Healthcare Bank, a division of Bell Bank, will serve as custodian of these accounts. NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: ARTICLE 1 — SCOPE AND PURPOSE This Agreement is limited in scope and purpose to establishing the terms and conditions for the transfer of payroll deductions and Employer contributions (if applicable) to HSAs of Employees. This Agreement may permit the payment of service fees, which are DBI fees and Healthcare Bank fees, by Employer on behalf of Employees only as stated in the fee schedule attached hereto. Nothing in this Agreement shall modify or amend the terms of any HSA agreement entered into between Healthcare Bank and Employees. Employer acknowledges and agrees that each Employee, and not DBI, will be responsible for, and DBI shall have no liability in connection with: • Determining that the employee is eligible to maintain an HSA and make contributions under applicable tax law; • Ensuring that all distributions the employee makes are permitted under said law; • The tax consequences of any contribution (including rollover contributions) or distribution; • Paying any fees applicable to the HSA; and • Complying with all requirements and terms and conditions in connection with the HSA imposed or established by DBI or Healthcare Bank. Complete and accurate information from Employer is required in order for DBI to perform the services set forth herein. The parties agree that DBI does not provide any legal, tax or accounting advice to the Plan and /or Employer. PAGE 3 OF 21 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS (MCBCC) (30974) ARTICLE 2 — OPENING OF ACCOUNTS In accordance with procedures to be agreed upon by the parties, Employer will: (i) advise Employees who wish to participate in Employer's HSA program that they will be required to enroll in an HSA through electronic procedures established by DBI; (ii) provide each such Employee with all applicable DBI notices, forms, and disclosures directly or online through the consumer portal; and (iii) provide to DBI at such time and in such format as DBI requires information with respect to the Employees who are participating in Employer's HSA program. Employer represents and warrants that the information and data it provides to DBI under this Agreement will be true and complete. If the information or data received by DBI from Employer is not true and complete, DBI shall not be responsible for such information or data or for the HSA opening or the HSA maintenance activities based on such information or data received from Employer. Employer represents and warrants that it will request DBI to open an HSA only for those Employees who have indicated the intent to open such an account. DBI reserves all rights to decline to open or activate any HSA or to close any HSA insofar as its practices and procedures have not been properly observed by Employer or the Employee. ARTICLE 3 — FUNDING OF ACCOUNTS Based on contribution timing set and maintained by Employer and in the form to be agreed upon by the parties, Employer shall remit to DBI the funds to be deposited into the HSA of each Employee and provide accompanying data that accurately indicates each HSA and the dollar amount to be credited to each such HSA. DBI shall have no liability for any funds not received by DBI or for any errors in crediting HSAs based on the data provided by Employer, including where such contributions are set up as automated recurring contributions pulled from Employer's bank account. As soon as administratively practicable, Healthcare Bank will transfer Employer contributions into the HSAs of Employees. As applicable, Employer contributions shall be allocated first to pay applicable service fees and account maintenance fees attributable to HSAs of Employees and second to the HSAs of Employees. Once contributions are deposited in the HSAs of Employees, the funds may be withdrawn or transferred from an HSA solely upon the instruction of Healthcare Bank and the respective Employee. In no event shall DBI be obligated to return any HSA funds to Employer. Once contributions are deposited, these funds may be withdrawn or transferred from an HSA solely upon the instructions of the respective Employee unless the account has not been successfully established or "opened." ARTICLE 4 — MISTAKEN EMPLOYER CONTRIBUTIONS Neither DBI nor Healthcare Bank assumes any responsibility for mistaken Employer contributions. Employer acknowledges and agrees that Internal Revenue Service (IRS) regulation requires that HSA contributions be non - forfeitable, provided that the IRS will allow the reversal of mistaken employer contributions in certain circumstances, including the following: • When there is a mistake in the eligibility to establish an HSA and the employee was never eligible for HSA contributions; • When the contribution exceeds the annual HSA maximum contribution; and • When there is clear documentary evidence demonstrating that there was an administrative or process error. 2 PAGE 4 OF 21 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS (MCBCC) (30974) DBI agrees to assist Employer in requesting the return of mistaken Employer contributions from Healthcare Bank in the above situations, or as otherwise permitted by applicable IRS guidance. In all cases, the return of mistaken HSA contributions is subject to the rules, procedures, and limitations of Healthcare Bank. ARTICLE 5 — ACCOUNT MAINTENANCE In order to administer and maintain the HSAs, from time to time in accordance with procedures to be agreed upon, Employer shall submit to DBI certain information concerning the status of Employees and HSA contributions and DBI may provide certain information about the HSAs to Employer. Employer acknowledges that DBI may rely upon all information provided by Employer in maintaining and administering the HSAs. Employer shall be responsible for all costs and expenses incurred by DBI for error correction or other activities undertaken by DBI at Employer's request or as a result of erroneous information provided by Employer to DBI. If requested, Employer shall certify to DBI the personnel authorized by Employer to receive and furnish information under this Agreement. ARTICLE 6 — ACCOUNT CLOSURES DBI will close an HSA only upon the instructions of the respective Employee. Notwithstanding anything to the contrary herein, at its discretion, DBI may refuse to open, or may close any previously established HSA for which the Employee is unable or unwilling to sign DBI forms or otherwise agree to the terms and conditions related to such HSA or otherwise violates any terms thereof. Employer acknowledges that upon any such closure, funds in the HSA will be returned to the Employee or forwarded to another financial institution upon instructions of the Employee (unless the mistaken employer contribution rules apply, in which case the funds will be returned to the Employer). Employer further acknowledges that such closure may result in tax consequences for which the Employee shall be solely responsible (and for which the Employer will be responsible for applicable tax reporting consequences). The custodian may resign and close the HSA for any reason or no reason, effective thirty (30) days after it provides written notice of its resignation to the Employee. ARTICLE 7 — SERVICE FEES Employer shall pay administrative service fees to DBI ("service fees "). The service fees shall be payable in accordance with the fee schedule attached hereto. The service fees are invoiced monthly and are due in accordance with the Florida Local Government Prompt Payment Act. Interest may be charged on the amount of all past due service fees at the rate of 1 1/2% per month, the maximum allowable rate under applicable law. If Employer fails to pay fees within sixty (60) days following Employer's receipt of the service fee invoice, and upon written request of DBI to Healthcare Bank, fees (including interest on past due fees) may be deducted directly from the HSAs to which they relate, provided that no amount may be deducted from an HSA to cover unpaid service fees from other HSAs. Employer shall have thirty (30) days from the date of the invoice to correct the HSA participant count for credit or refund. Service fees are billed to Employee upon termination of employment with Employer. If requested by Employer, service fees can be charged directly to Employees. If the service fees are charged directly to Employees, they will be withdrawn from the HSAs on or around the first of each month and appear as a separate line item in the Employees' account transactions. Service fees cannot be charged directly to Employees if the service fees are part of a DBI solution fee or a monthly minimum fee. DBI may charge Employer reasonable fees at no greater than $0.15 per page or in accordance with Florida Public Records law, F.S. 119.071 for the reproduction or return of records or reports requested by Employer or governmental agencies if the governmental agency has made the request on behalf of Employer or for reasonable fees charged by other parties for information reasonably required by DBI to perform its duties under this Agreement. 3 PAGE 5 OF 21 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS (MCBCC) (30974) Notwithstanding the foregoing, DBI reserves the right to increase service fees at any time based on postal rate or bank fee increases or increased costs due to legislative changes at the federal level actually incurred in performing its services. DBI shall provide Employer with 30 days prior written notice of such increases and shall specify the amount of the fee increases. The service fees include custodial fees charged by the HSA custodian. DBI may adjust its service fees to reflect any adjustment in custodial fees charged by the HSA custodian upon thirty (30) days advance written notice to Employer. DBI reserves the right to increase service fees due to the provision of additional services to Employer by DBI that were not included in or contemplated by this Agreement on the Effective Date but must obtain prior written consent of the Employer prior to the increase. On or after the Rate Expiration Date noted on the fee schedule, DBI reserves the right to amend the fee schedule with sixty (60) days' advance written notice. If Employer is unwilling to accept the changes to the fee schedule, Employer may terminate this Agreement by providing notice to DBI no later than the effective date of the fee schedule amendment. Fees quoted assume that DBI standard software and systems will be compatible with Employer's software and systems and with any prior service provider's software and systems so that the services can be readily performed without any modifications or alterations of DBI's software and systems. In the unusual event that costs are incurred by DBI to integrate the DBI Services with Employer's software and systems and /or in migrating the data from the prior service provider to DBI's systems, those costs may be charged separately on a time and materials basis or as otherwise provided under a separate agreement between the parties. ARTICLE 8 — DATA (a) Employee Data Employer represents that it has confirmed the identity and employment eligibility of all Employees for whom data is provided through the: • U.S. Citizenship and Immigration Services I -9 forms completed by Employees if hired after November 6, 1986; or • For employees hired before that date, review by Employer of Employees' driver's licenses or other government- issued identifying documentation evidencing nationality or residence and bearing a photograph or similar safeguard. Employer further represents that the Employees have certified their authorization to work in the United States and have furnished their social security or other taxpayer identification numbers which Employer will provide to DBI for the purposes of establishing HSAs. (b) Employer Data Retention DBI shall retain a copy of all data, records, and files, excluding emails or similar electronic communications destroyed in the ordinary course of business pursuant to DBI policy, for eight (8) years from the date created at DBI. Following the termination of this Agreement, DBI shall cooperate with Employer or Employer's subsequent service provider to effect an orderly transition of services provided under this Agreement and, within a reasonable time, will release to Employer in DBI's standard format, a copy of the data, records, and files. Upon termination of this Agreement, DBI shall be entitled to retain a copy of the data, records, and files released by DBI pursuant to this Agreement and will be entitled to continue to use 4 PAGE 6 OF 21 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS (MCBCC) (30974) and disclose such information for claims and audits, and for legal and contractual compliance purposes to the extent permitted by law. ARTICLE 9 — EMPLOYER REQUIREMENTS Employer represents and warrants that it does not: • Limit the ability of eligible individuals to move their funds to another HSA beyond restrictions imposed by the Internal Revenue Code of 1986 ( "Code "); • Impose conditions on uses of HSA funds beyond those permitted under the Code; • Make or influence the investment decisions with respect to funds contributed to an HSA; • Represent that HSAs are an employee welfare benefit plan established or maintained by Employer; or • Receive any payment or compensation from DBI in connection with an HSA. To the extent applicable, the HSA comparability testing under Code Section 4980G is the responsibility of Employer to complete. ARTICLE 10 — ACTIVITIES OUTSIDE THE SCOPE OF DBI AND HEALTHCARE BANK RESPONSIBILITY DBI assumes no responsibility or authority under this Agreement for: • The design, funding or operation of any Employer- sponsored health and welfare benefit plan or for compliance of any such plan with ERISA, including any aspect of the Consolidated Omnibus Budget Reconciliation Act of 1985 ( "COBRA'); • Duties incumbent upon a "plan sponsor" or "covered entity" under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA ") privacy and security rules; • Funding of claims for benefits under any HSA or employee benefit plan or the payment of fees to third parties providing services or products to Employer or Employees; • Funding of any contributions; or • Insuring or underwriting any liability to provide benefits under any employee benefit plan. ARTICLE 11 — TERM OF AGREEMENT (a) Duration The term of this Agreement shall commence as of the Effective Date and shall continue for a period of twelve (12) months (the "Initial Term "). This Agreement shall automatically renew for another twelve (12) months at the end of the Initial Term and every twelve (12) months thereafter unless terminated pursuant to this Article 11. (b) Termination without Cause This Agreement may be terminated at any time during the Initial Term or any renewal term by 5 PAGE 7 OF 21 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS (MCBCC) (30974) Employer or by DBI without cause and without liability with written notice of the intention to terminate to be effective as of a date certain set forth in the written notice not fewer than sixty (60) days from the date of such notice. (c) Automatic Termination and Termination with Cause The Agreement shall automatically terminate: • If any law is enacted or interpreted to prohibit the continuance of this Agreement, upon the effective date of such law or interpretation; • If any monthly service fee remains unpaid to DBI, upon notification by DBI to Employer in writing that DBI intends to exercise its option to enforce this provision; or • If at any time Employer fails to provide funds for the payment of Plan benefits. If a party is in default under any provision of this Agreement, the other party may give written notice to the defaulting party of such default. If the defaulting party has not used good faith efforts to cure such breach or default within thirty (30) days after it receives such notice, or if good faith efforts to cure have begun within thirty (30) days but such cure is not completed within sixty (60) days after receipt of the notice, the other party shall have the right by further written notice (the "Termination Notice ") to terminate the Agreement as of any future date designated in the Termination Notice. (d) Charges Employer shall pay all charges or fees that have accrued up to the date of the termination. ARTICLE 12 — CONFIDENTIAL BUSINESS INFORMATION AND INTELLECTUAL PROPERTY (a) General Obligations For purposes of this Article 12, "confidential business information" shall mean any information identified by either party as "confidential" and /or "proprietary", or which, under the circumstances, ought to be treated as confidential or proprietary, including non - public information related to the disclosing party's business, employees, service methods, software, documentation, financial information, prices, and product plans. To the maximum extent possible under Florida law, neither DBI nor Employer shall disclose confidential business information of the other party. The receiving party shall use reasonable care to protect the confidential business information and ensure it is maintained in confidence, and in no event use less than the same degree of care as it employs to safeguard its own confidential business information of like kind. The foregoing obligation shall not apply to: (a) any information that is at the time of disclosure, or thereafter becomes, part of the public domain through a source other than the receiving party; (b) is subsequently learned from a third party that does not impose an obligation of confidentiality on the receiving party; (c) was known to the receiving party at the time of disclosure; (d) was generated independently by the receiving party; or (e) is required to be disclosed by law, subpoena or other process. DBI may disclose Employer's or the Plan's confidential business information to a governmental agency or other third party to the extent necessary for DBI to perform its obligations under this Agreement or if Employer has given DBI written authorization to do so. Each party agrees that its obligations contained in this Article 12 apply also to its parent, subsidiary, and affiliated companies, if any, and to similarly bind all successors, employees, agents, and representatives. 6 PAGE 8 OF 21 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS (MCBCC) (30974) (b) Financial Statements and Audit Information If Employer requests access to certain financial statements and /or service organization control audit reports or other audit information of DBI for the purpose of reviewing the financial, operating, and business condition of DBI, and DBI agrees to provide such information, Employer's acceptance of or access to such confidential information shall constitute its agreement with the following: • Employer will maintain the information (whether communicated by means of oral, electronic or written disclosures) in confidence and shall not use the same for its own benefit, or for any purpose other than the furtherance of its review, or disclose the same to any third party. • Employer may only disclose the information to its own officers, employees, and agents on a need -to -know basis for the purposes of its review. • If Employer is a state agency or otherwise subject to a freedom of information type statute, the information shall be treated as confidential and exempt from disclosure in accordance with the applicable law and the information contains sensitive proprietary business information and data defined as trade secret information that would not otherwise be publicly available and that disclosure of this information to the public, including DBI's competitors, would likely result in substantial harm to DBI's competitive positions and also contains confidential supervisory information and personal information relating to directors, officers, and major shareholders of DBI, the disclosure of which would constitute an unwarranted invasion of personal privacy. (c) Intellectual Property All materials, including, without limitation, documents, forms (including data collection forms provided by DBI), brochures, and online content ( "Materials ") furnished by DBI to Employer are licensed, not sold. Employer is granted a personal, non - transferable, and nonexclusive license to use Materials solely for Employer's own internal business use. Employer does not have the right to copy, distribute, reproduce, alter, display or use these Materials or any DBI trademarks for any other purpose other than its own internal business use. Employer shall use commercially reasonable efforts to prevent and protect the content of Materials from unauthorized use. Employer's license to use Materials ends on the termination date of this Agreement. Upon termination, Employer agrees to destroy Materials or, if requested by DBI, to return them to DBI, except to the extent Employer is required by law to maintain copies of such Materials. DBI retains exclusive ownership rights to and reserves the right to independently use its experience and know - how, including processes, ideas, concepts, and techniques acquired prior to or developed in the course of performing services under this Agreement. (d) Subcontractors or Third Parties Notwithstanding anything to the contrary, although DBI remains responsible for the confidentiality obligations as set forth in this Article 12, DBI reserves the right to have this information processed, managed, and /or stored with subcontractors or third parties. (e) Information Security Program DBI represents and warrants that it has implemented and maintains a written and comprehensive information security program, and complies with all applicable law and regulation, including, without limitation, state privacy and data security law and regulation such as the Massachusetts Standards for the Protection of Personal Information of Residents of the Commonwealth (201 CMR 17.00). 7 PAGE 9 OF 21 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS (MCBCC) (30974) ARTICLE 13 — RELIANCE BY DBI (a) Employer has authorized and instructed DBI in this Agreement to implement DBI's standard administrative procedures to provide services in accordance with this Agreement. DBI shall be fully protected in relying upon representations by Employer set forth in this Agreement and communications made by or on behalf of Employer in effecting its obligations under this Agreement. (b) Employer and DBI agree that if Employer instructs DBI with a specific written request in a format acceptable to DBI to provide services in a manner other than in accordance with DBI's standard forms and procedures, DBI may (but need not) comply with such an instruction. This would include any Employer instruction to add a vendor link to the consumer portal. To the extent that DBI complies with such an instruction, Employer and not DBI shall be solely responsible for DBI's action so taken, and Employer agrees to hold DBI harmless from and against any and all liability, damages, costs, losses, and expenses (including attorney fees), and expressly releases all claims against DBI in connection with any claim or cause of action that results from or in connection with DBI complying with Employer's specific written instruction to provide services in a manner other than in accordance with DBI's standard procedures. (c) Employer agrees to hold DBI harmless from and against any and all liability, damages, costs, losses, and expenses (including attorney fees) and expressly releases all claims against DBI in connection with any claim or cause of action for any activity or occurrence prior to the Effective Date of this Agreement that results from the failure or alleged failure of Employer, its officers and employees, and any other entity related to or performing services on behalf of Employer to comply with ERISA, the Code, and any other applicable law or regulation with respect to the HSAs. ARTICLE 14 — INDEMNIFICATION, LIMITATIONS, AND INSURANCE (a) Subject to the limitations in this Article 14, DBI will be liable to and will defend, indemnify, and hold harmless Employer and its respective officers, directors, employees, agents, representatives, successors and permitted assigns from and against any and all liability, damages, costs, losses, and expenses (including attorney fees), disbursements, and court costs reasonably incurred by Employer in connection with any threatened, pending or adjudicated claim, demand, action suit or proceeding by any third party to the extent solely and directly caused by DBI's willful misconduct, criminal conduct, material breach of this Agreement or violation of applicable law related to or arising out of the services performed by DBI under this Agreement. (b) To the extent permitted by law and except as provided in (a) above, and in addition to the provisions in Article 13, Employer will be liable to and will defend, indemnify and hold harmless DBI and its respective officers, directors, employees, agents, representatives, successors and permitted assigns from and against any and all liability, damages, costs, losses, and expenses (including attorney fees), disbursements, and court costs reasonably incurred by DBI in connection with any threatened, pending or adjudicated claim, demand, action, suit or proceeding by any third party to the extent solely and directly caused by Employer's willful misconduct, criminal conduct, material breach of this Agreement or violation of applicable law related to or arising out of the services performed by DBI under this Agreement. If Employer is a state agency or otherwise subject to a public entity/political subunit non - indemnification type statute and therefore unable to indemnify under this subsection, DBI shall not be responsible for any injury or damage that occurs as a result of any negligent act or omission committed by Employer, including its agents, employees or assigns. (c) The party seeking indemnification must notify in writing the indemnifying party within ten (10) business days of an actual action, suit or proceeding (and within a reasonable period of time with 8 PAGE 10 OF 21 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS (MCBCC) (30974) • respect to any threatened action, suit or proceeding) to which it claims such indemnification applies. Failure to so notify the indemnifying party shall not be deemed a waiver of the right to seek indemnification except to the extent the actions of the indemnifying party have been prejudiced by the failure of the other party to provide notice within the required time period. (d) In no event shall either party be liable to the other for consequential, special, exemplary, punitive, indirect or incidental damages, including, but not limited to, any damages resulting from loss of use or loss of profits arising out of or in connection with this Agreement, whether in an action based on contract, tort (including negligence) or any other legal theory whether existing as of the Effective Date or subsequently developed, even if the party has been advised of the possibility of such damages. In the event the foregoing is found to be invalid, in no event will DBI's liability for such damages exceed the fees paid by Employer for the services in the twelve -month period in which the cause of action occurred. In addition, notwithstanding any other provision in this Agreement to the contrary, the maximum total liability of DBI to Employer shall be limited to direct money damages in an amount not to exceed the dollar amount that is available to cover such liability under the insurance policy or policies provided for herein. This is Employer's sole and exclusive remedy. No action under this Agreement may be brought by either party more than two (2) years after the cause of action has accrued. DBI and Employer expressly agree that the limitation of liability stated herein represents an agreed allocation of the risks of this Agreement between the parties. This allocation is reflected in the pricing offered by DBI to Employer and is an essential element of the basis of the bargain between the parties. (e) During the term of this Agreement, DBI shall maintain general liability insurance and professional /cyber liability insurance with policy limits of not less than $5,000,000 per occurrence and in the aggregate for the purpose of providing coverage for claims arising out of the performance of its services under this Agreement. DBI shall maintain a fidelity bond (or an insurance policy similar to a fidelity bond) for DBI and any of its employees who may collect, disburse or otherwise handle or have possession of any funds provided by Employer. Upon request, DBI shall provide Employer with a certificate or certificates of insurance reflecting such insurance coverages. ARTICLE 15 — RED FLAGS RULE COMPLIANCE To the extent applicable, DBI shall comply with the Red Flags Rule with respect to the services provided by DBI under this Agreement that are covered by the Red Flags Rule as determined by DBI in its sole discretion. For purposes of this provision "Red Flags Rule" means the regulations adopted by various federal agencies, including the Federal Trade Commission, in connection with the detection, prevention and mitigation of identity theft, and located at 72 Fed. Reg. 63718 (November 9, 2007), as amended. As part of its Red Flags Rule compliance, DBI shall adopt, maintain, and use appropriate and commercially reasonable rules, procedures, and safeguards to detect and identify red flags and to prevent and mitigate identify theft as required by the Red Flags Rule. Such rules, procedures, and safeguards shall be set forth in a written program (the "Red Flags Program "). DBI shall, upon request, make available to Employer a copy of its Red Flags Program. 9 PAGE 11 OF 21 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS (MCBCC) (30974) ARTICLE 16 — GENERAL (a) Neither Employer nor DBI will restrict the ability of HSA owners to move funds to another HSA beyond those restrictions imposed by the Code. (b) By executing this Agreement, the parties agree to extend the term of any ACH Agreement associated herewith to be coterminous with the term of this Agreement and to have such agreement be covered by the terms and provisions hereof. (c) From time -to -time and in compliance with applicable federal and state laws, DBI may monitor and /or record calls which are made to and from the customer service line for quality assurance and training purposes, and /or to ensure that DBI's services fully comply with the terms of this Agreement. (d) Employer acknowledges and agrees that the services provided by DBI pursuant to this Agreement relate to enrollment and disenrollment in the Plan and that these services to the extent permitted under HIPAA shall be deemed to be performed by DBI on behalf of Employer in its capacity as the sponsor of the Plan. Employer further acknowledges and agrees that DBI may use or disclose enrollment or disenrollment information that it receives from Employer with respect to a particular HSA participant to provide the HSA participant access to additional services at no cost to Employer. (e) This Agreement may not be assigned by either party without the prior written consent of the other unless in connection with a merger, acquisition or sale of all or substantially all of the party's assets and provided that the surviving entity has agreed to be bound by this Agreement and has notified the other party in writing within thirty (90) days of the assignment. (f) Notwithstanding anything to the contrary contained herein, neither party shall be liable or deemed to be in default under or in breach of this Agreement for failure to perform or delay in the performance of any of their respective obligations under this Agreement to the extent that such failure or delay results from any act of God, military operation, terrorist attack, widespread and prolonged loss of use of the Internet, national emergency, government restrictions, or disruption of the financial markets. The affected party shall use all commercially reasonable efforts to remedy any inability to perform under this Agreement. (g) This Agreement shall be governed and interpreted by the laws of the State of North Dakota. In the event of any conflict of laws, the laws of the State of North Dakota shall prevail. The parties agree that any claim or action arising from this Agreement can only be brought in the United States District Court for the District of North Dakota, and both parties consent to such jurisdiction and venue. (h) The parties agree that in performing their responsibilities under this Agreement, they are in the position of independent contractors. This Agreement is not intended to create, nor does it create and shall not be construed to create, a relationship of partner or joint venture or any association for profit between Employer and DBI. (i) If any provision of this Agreement is found to be unenforceable or invalid, such determination shall not affect any other provision, each of which shall be construed and enforced as if such invalid or unenforceable provision were not contained herein, and the parties will negotiate a mutually acceptable replacement provision consistent with the parties' original intent. (j) In the event of DBI's resignation or inability to serve, Employer may appoint a successor. In such situations, the replacement of DBI shall be considered a termination of this Agreement and the termination provisions of Article 11 shall remain effective and controlling. (k) The provisions of Articles 8, 12, 13, 14, 15, and 16 shall survive the termination of this Agreement. 10 PAGE 12 OF 21 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS (MCBCC) (30974) • (I) If either party fails to enforce any right or remedy under this Agreement, that failure is not a waiver of the right or remedy for any other breach or failure by the other party. (m) Any notice required or permitted to be given under this Agreement shall be deemed delivered to the address set forth in this Agreement or such other physical or electronic address as specified by the party: (a) when received if delivered by hand; (b) the next business day if placed with a reputable express carrier for delivery during the morning of the following business day; (c) three (3) days after deposit in the U.S. mail for delivery, postage prepaid; or when received if delivered electronically. DBI: 4321 20th Avenue South, Fargo, ND 58103, Attention: Chief Compliance Officer. (n) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements and understandings regarding the subject matter hereof, whether written or verbal. Any amendment to this Agreement must be in writing and signed by authorized representatives of both parties. The provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their heirs, assigns, and successors in interest. Nothing express or implied in this Agreement is intended to confer, and nothing herein shall confer upon any person other than the parties hereto, any rights, remedies, obligations or liabilities whatsoever. (o) Any number of counterparts of this Agreement may be signed and delivered and transmitted electronically, each of which shall be considered an original and all of which, together, shall constitute one and the same instrument. ARTICLE 17 — FEDERAL CONTRACT PROVISIONS (REQUIRED BY 2 CFR 200) The parties agree that this Article 17 of this Agreement (also, the "Contract ") applies solely to DBI's direct relationship with Employer (also, the "County") and does not require DBI (also, the "Contractor ") to include any of the obligations stated herein in any agreements between DBI and its subcontractors, if any. 1. SMALL AND MINORITY BUSINESSES, WOMEN'S BUSINESS ENTERPRISES, AND LABOR SURPLUS AREA FIRMS The County strongly encourages the use of women -, minority- and veteran -owned business enterprises (SBEs) and wishes to see a minimum of 25% of the contract or subcontracts awarded pursuant to this RFP go to SBEs. Contractors may search for Florida registered SBEs at: http: / /www.dms.myflorida.com /agency administration /office of supplier diversity osd, Any proposal submitted in which the vendor is certified as an SBE, or in which the vendor proposes to use subcontractors that are certified as SBEs, in Florida or another jurisdiction, must submit proof of the registration or certification from the local authority in order to receive credit for the use of the SBE. 2. AUDIT OF RECORDS Contractor shall grant to the County, DEM, FEMA, the Federal Government, and any other duly authorized agencies of the Federal Government or the County where appropriate the right to inspect and review all books and records directly pertaining to the Contract as required by applicable County, State and Federal law. Records shall be made available during normal working hours for this purpose. In the event that FEMA, DEM, or any other Federal or State agency, or the County, issues findings or rulings that the amounts charged by the Contractor, or any portions thereof, were ineligible or were non - allowable under federal or state Law or regulation, Contractor may appeal any such finding or 11 PAGE 13 OF 21 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS (MCBCC) (30974) ruling. If such appeal is unsuccessful, the Contractor shall agree that the amounts paid to the Contractor shall be adjusted accordingly, and that the Contractor shall, within thirty (30) days thereafter, issue a remittance to the County of any payments declared to be ineligible or non - allowable, and County shall reimburse Contractor out of non - federal grant funds. Contractor shall comply with federal and /or state laws authorizing an audit of the specific services . Under no circumstances shall advertising or other communications with the media be presented in such a manner as to County or imply that the Contractor or the Contractor's services are endorsed by the County. 3. TERMINATION A. In the event that the CONTRACTOR shall be found to be negligent in any breach of this Article 17, the COUNTY shall have the right to terminate this agreement after five (5) days written notification to the CONTRACTOR. B. Either of the parties hereto may cancel this Agreement without cause by giving the other party sixty (60) days written notice of its intention to do so. B. Termination for Cause and Remedies: In the event of breach of any contract terms in this Article 17, the COUNTY retains the right to terminate this Agreement. The COUNTY may also terminate this agreement for cause with CONTRACTOR should CONTRACTOR fail to perform the covenants herein contained at the time and in the manner herein provided. In the event of such termination, prior to termination, the COUNTY shall provide CONTRACTOR with five (5) calendar days' notice and provide the CONTRACTOR with an opportunity to cure the breach that has occurred. If the breach is not cured within 24 hours of notice, the Agreement will be terminated for cause. If the COUNTY terminates this Agreement with the CONTRACTOR, COUNTY shall pay CONTRACTOR the sum due the CONTRACTOR under this agreement prior to termination. In addition, the COUNTY reserves the right to sue for breach of contract and including the right to pursue a claim for violation of the COUNTY's False Claims Ordinance, located at Section 2 -721 et al. of the Monroe County Code. 4. PUBLIC ENTITIES CRIMES AND DEBARMENT 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 contracts to provide any goods or services to a public entity, may not submit a bid on a contract with a public entity for the construction or repair of a public building or public work, may not submit bids on leases of real property to public entity, may not be awarded or perform work as a contractor, supplier, subcontractor, or CONTRACTOR under a contract 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 CATEGORY TWO for a period of 36 months from the date of being placed on the convicted vendor list. By signing this Agreement, CONTRACTOR represents that the execution of this Agreement will not violate the Public Entity Crimes Act (Section 287.133, Florida Statutes). Violation of terms of this contract shall result in termination of this Agreement and recovery of all monies paid hereto, suspension of the ability to bid on and perform County contracts, and may result in debarment from COUNTY's competitive procurement activities. In addition to the foregoing, CONTRACTOR further represents that there has been no determination, based on an audit, that it or any subcontractor has committed an act defined by 12 PAGE 14 OF 21 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS (MCBCC) (30974) Section 287.133, Florida Statutes, as a "public entity crime" and that it has not been formally charged with committing an act defined as a "public entity crime" regardless of the amount of money involved or whether CONUSULTANT has been placed on the convicted vendor list. CONTRACTOR will promptly notify the COUNTY if it or any subcontractor or CONTRACTOR is formally charged with an act defined as a "public entity crime" or has been placed on the convicted vendor list. 5. NONDISCRIMINATION During the performance of this Agreement, the CONTRACTOR agrees as follows: (1) The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such 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 apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause. (2) The Contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin. (3) The Contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information. (4) The Contractor will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice to be provided by the agency contracting officer, advising the labor union or workers' representative of the contractor's commitments under section 202 of Executive Order 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (5) The Contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. (6) The Contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, 13 PAGE 15 OF 21 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS (MCBCC) (30974) or pursuant thereto, and will permit access to his books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders. (7) In the event of the Contractor's non - compliance with the nondiscrimination clauses of this contract or with any of such rules, regulations, or orders, this Contract may be canceled, terminated or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. 6. COVENANT OF NO INTEREST CONTRACTOR and the COUNTY covenant that neither presently has any interest, and shall not acquire any interest, which would conflict in any manner or degree with its performance under this Agreement, and that only interest of each is to perform and receive benefits as recited in this Agreement. 7. CODE OF ETHICS The parties recognize and agree 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. 14 PAGE 16 OF 21 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS (MCBCC) (30974) 8. NO SOLICITATION /PAYMENT The CONTRACTOR and COUNTY 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 CONTRACTOR 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. 9. PUBLIC RECORDS. Public Records Compliance. Subject to Article 12(b), pursuant to F.S. 119.0701 and the terms and conditions of this contract, if the Contractor is an individual, partnership, corporation or business entity that enters into a contract for services with a public agency and is acting on behalf of the public agency as provided under F.S. 119.011(2), the CONTRACTOR is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of 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 this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the CONTRACTOR does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the CONTRACTOR or keep and maintain public records that would be required by the County to perform the service. If the CONTRACTOR transfers all public records to the County upon completion of the contract, the CONTRACTOR shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the CONTRACTOR keeps and maintains public records upon completion of the contract, the 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 records, in a format that is compatible with the information technology systems of the County. (5) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify the CONTRACTOR of the request, and the CONTRACTOR must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the CONTRACTOR does not comply with the County's request for records, the County shall enforce the public records contract provisions in accordance with the contract, notwithstanding the County's option and right to unilaterally cancel this contract upon violation of this provision by the CONTRACTOR. A CONTRACTOR who fails to provide the public records to the County or pursuant to a valid public records request within a reasonable time may be subject to penalties under section119.10, Florida Statutes. The CONTRACTOR shall not transfer custody, release, alter, destroy or otherwise dispose of any public records unless or otherwise provided in this provision or as otherwise provided by law. IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC 15 PAGE 17 OF 21 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS (MCBCC) (30974) RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS, BRIAN BRADLEY AT PHONE# 305 -292 -3470 BRADLEY - BRIAN @MONROECOUNTY- FL.GOV, MONROE COUNTY ATTORNEY'S OFFICE 1111 12TH Street, SUITE 408, KEY WEST, FL 33040. 10. FEDERAL CONTRACT REQUIREMENTS The CONTRACTOR must follow the provisions as set forth in Appendix II to Part 200, as amended, including but not limited to: A. The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401- 7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251 -1387) and will reports violations to FEMA and the Regional Office of the Environmental Protection Agency (EPA). B. The, Davis -Bacon Act, as amended (40 U.S.C. 3141 - 3148). When required by Federal program legislation, all prime construction contracts in excess of $2,000 awarded by non - Federal entities must comply with the Davis -Bacon Act (40 U.S.C. 3141 -3144, and 3146 -3148) as supplemented by Department of Labor regulations (29 CFR Part 5, "Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction "). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The COUNTY must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The COUNTY must report all suspected or reported violations to the Federal awarding agency. The contractors must also comply with the Copeland "Anti - Kickback" Act (40 U.S.C. 3145), as supplemented by Department of Labor regulations (29 CFR Part 3, "Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States "). As required by the Act, each contractor or sub - recipient is prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The COUNTY must report all suspected or reported violations to the Federal awarding agency. C. Contract Work Hours and Safety Standards Act (40 U.S.C. 3701 - 3708). Where applicable, all contracts awarded by the COUNTY in excess of $100,000 that involve the employment of mechanics or laborers must comply with 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (29 CFR Part 5). Under 40 U.S.C. 3702 of the Act, each contractor must compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence. D. Rights to Inventions Made Under a Contract or Agreement. If the Federal award meets the definition of "funding agreement" under 37 CFR §401.2 (a) and the recipient or sub - recipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of 16 PAGE 18 OF 21 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS (MCBCC) (30974) experimental, developmental, or research work under that "funding agreement," the recipient or sub - recipient must comply with the requirements of 37 CFR Part 401, "Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements," and any implementing regulations issued by the awarding agency. F. Clean Air Act (42 U.S.C. 7401- 7671q.) and the Federal Water Pollution Control Act (33 U.S.C. 1251 - 1387), as amended — Contracts and sub - grants of amounts in excess of $150,000 must comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401- 7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251 - 1387). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA). G. Debarment and Suspension (Executive Orders 12549 and 12689) —A contract award (see 2 CFR 180.220) must not be made to parties listed on the government -wide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3 CFR part 1989 Comp., p. 235), "Debarment and Suspension." SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549. H. Byrd Anti - Lobbying Amendment (31 U.S.C. 1352) — Contractors that apply or bid for an award exceeding $100,000 must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier must also disclose any lobbying with non - Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the non - Federal award. I. Procurement of recovered materials as set forth in 2 CFR § 200.322. Other Federal Requirements: A. Americans with Disabilities Act of 1990 (ADA) – The CONTRACTOR will comply with all the requirements as imposed by the ADA, the regulations of the Federal government issued thereunder, and the assurance by the CONTRACTOR pursuant thereto. B. Disadvantaged Business Enterprise (DBE) Policy and Obligation - It is the policy of the COUNTY that DBE's, as defined in 49 C.F.R. Part 26, as amended, shall have the opportunity to participate in the performance of contracts financed in whole or in part with COUNTY funds under this Agreement. The DBE requirements of applicable federal and state laws and regulations apply to this Agreement. The COUNTY and its CONTRACTOR agree to ensure that DBE's have the opportunity to participate in the performance of this Agreement. In this regard, all recipients and contractors shall take all necessary and reasonable steps in accordance with applicable federal and state laws and regulations to ensure that the DBE's have the opportunity to compete for and perform contracts. The COUNTY and the CONTRACTOR and subcontractors shall not discriminate on the basis of race, color, national origin or sex in the award and performance of contracts, entered pursuant to this Agreement. 17 PAGE 19 OF 21 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS (MCBCC) (30974) C. The Contractor 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 during the term of the Contract. 11. No Obligation by Federal Government. The federal government is not a party to this contract and is not subject to any obligations or liabilities to the non - Federal entity, contractor, or any other party pertaining to any matter resulting from the contract. 12. Program Fraud and False or Fraudulent Statements or Related Acts. The Contractor acknowledges that 31 U.S.C. Chapter 38 (Administrative Remedies for False Claims and Statements) applies to the Contractor's actions pertaining to this contract. 18 PAGE 20 OF 21 LIERFORMANCE Discovery Benefits UARANTEES simplify.- .....____...... BENEFITS QUARTERLY PERFORMANCE GUARANTEES Discovery Benefits will put a total of fifteen percent (15 %) of quarterly Benefit plan fees at risk based on the following: 5% for Implementation the first quarter of the first year and 10% for ongoing Operations for all quarters. Performance Guarantees Fees At Risk, �_. Actual Performance IMPLEMENTATION There will be a 15 business day turnaround time on accurate group 5% of set up (as agreed to during the implementation process) once 1 quarter fees complete plan information is received. PARTICIPANT /MEMBER SERVICES The average answer time in the participant call center will be 60 2% seconds or less. 95% of participant emails will be 2% responded to within 1 business day. CLAIMS 98% of claims will be reimbursed within 2 business days (claims 2% received by 8:OOAM Monday — Friday). SYSTEMS The website (DiscoveryBenefits.com) 2% will have a 98% accessibility rate. There will be a 98% system, (Consumer and Employer Portal) 2% availability rate for customer inquiries. Performance guarantees are (/) based upon performance for all companies and are not based upon individual company performance, except for implementation and (il) subject to any force majeure or similar clause set forth in any agreement you have with Discovery Benefits.