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Item C25 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: February 18, 2009 Division: Employee Services Bulk Item: Yes -L No Department: Employee Services Staff Contact PersonJPhone #: Maria Fernandez-Gonzalez - Ext. 4448 AGENDA ITEM WORDING: Approval of Amendment No.1 to the Prescription Management Plan Services Agreement with Walgreens Health Initiatives, Inc. (WHI). ITEM BACKGROUND: The pricing arrangement for Specialty Pharmacy Drugs was changed effective 10/01/2008 to "pass-through" rates rather than Retail 30 pricing which is more advantageous to the plan. This pricing arrangement for Specialty Pharmacy Drugs was not noted in the original agreement approved by the BOCC September 17, 2008 therefore requiring this amendment to the agreement. PREVIOUS RELEVANT BOCC ACTION: Three year Prescription Management Plan Services Agreement with Walgreens Health Initiatives, Inc. was approved by BOCC September 17,2008 with an estimated annual cost of $1.9 million for FY 08/09. CONTRACT/AGREEMENT CHANGES: Amends the pricing arrangement for Specialty Pharmacy Drugs. STAFF RECOMMENDATIONS: Approval. TOTAL COST: $1.9 million (estimated) INDIRECT COST: None BUDGETED:Yes X No - ~ COST TO COUNTY: $1.9 million (estimated) SOURCE OF FUNDS: N/A REVENUE PRODUCING: Yes No X AMOUNT PER Month_ Year APPROVED BY: County Atty (!,l\ 9~urchasing _ RL,k Managemc'l1tr1l~ DOCUMENTATION: Included Not Required_ DISPOSITION: AGENDA ITEM # Revised 1/09 MONROE COUNTY BOARD OF COUNTY COMMISSIONERS CONTRACT SUMMARY Contract with: Walgreen's Health Contract #_ Effective Date: October 1, 2008 Expiration Date: September 30,2011 Contract Purpose/Description: Prescription benefit management services Contract Manager: Maria Z. Fernandez 4448 Administrative Services (Name) (Ext.) (Department/Stop #) for BOCC meeting on Feb. 18,2009 Agenda Deadline: February 3,2009 CONTRACT COSTS Total Dollar Value of Contract $ 1,900,000 Budgeted? Yes[SJ No 0 Account Codes: Grant $ County Match: $ N/ A Current Year Portion: $ 501-08003-530316-_-_ - - - - ----- - - - - ----- ADDITIONAL COSTS Estimated Ongoing Costs: $~yr For: (Not included in dollar value above) (eg. maintenance, utilities, janitorial, salaries, etc.) - - - - ----- CONTRACT REVIEW Date In Division Director ;2 JJJfl Changes Needed YesD Nog Date Out ldL.o4 YesD Noc::r 1-~-6q YeSDNo~'-r.~ County Attomeyl-2e- 0<; YesO No~ ~ 7. !hJjJ Risk Manag~ment PJ ~ V.:J:~ O.M.B./Purchasing }-2-8--69 Comments: OMB Form Revised 2/27/01 Mep #2 OK~~T.Y ~o~~~~E (305) 294-4641 Office of the Employee Services Division Director The Historic Gato Cigar Factory 1100 Simonton Street, Suite 268 Key West, ]<'L 33040 (305) 292-t458 - Phone (305) 292-4564 - Fax TO: r.'-.......-~ r BOARD OF COl;NTY COM~IL"SIONERS Mayor George .\ieugent, District :2 Mayor Pro Tem Sylvia J. Murphy, District 5 Kim Wigington, District I Heather Carruthers. Di.trict 3 Mario Di Gennaro, Di.trict i Board of County Commissioners FROM: Teresa E. Aguiar, Employee Services Dire DATE: January 27, 2009 SUBJ: Contract Amendment 1 Walgreens Health Initiatives, Inc. - Pharmacy Benefits Manager This item requests approval of Amendment 1 to the existing contract between the County and Walgreens Health Initiatives, Inc. The Amendment requires that any drugs identified as "Specialty Pharmacy Drugs" will be dispensed directly from Walgreens which results in a cost savings to the Plan. This pricing arrangement was not noted in the original agreement which became effective October 1,2008; however, we have been receiving the services and savings as outlined in the Amendment. This Amendment will just confirm the already established arrangement. It is recommended that the Board approve the addition of this Amendment to the existing contract. If you have any questions, please do not hesitate to contact me. .- . ... AMENDMENT NO.1 TO PRESCRIPTION MANAGEMENT PLAN SERVICES AGREEMENT This Amendment No. 1 to Prescription Management Plan Services Agreement ("Amendment") is entered into by and between Monroe County ("County") and Walgreens Health Initiatives, Inc. ("WHI"). RECIT ALS 1. County and WHI are parties to that certain Prescription Management Services Plan Agreement effective as of October 1, 2008 ("Agreement"); and 2. The parties desire to amend certain of the terms of the Agreement. Therefore, in consideration of the covenants and agreements set forth herein, County and WHI agree to amend the Agreement as set forth in this Amendment, effective as of October 1, 2008, unless otherwise stated herein. AMENDED TERMS 1. Article /I of Exhibit B is deleted in its entirety and replaced with the fOllowing: /I. SPECIALTY PHARMACY DRUGS. County acknowledges that certain drugs available on the market will not be subject to the rates set forth in Article I, above, due to reasons such as, but not limited to, nonstandard administration, necessity for case management, limited availability, unique shipping or handling requirements, and specialized manufacturer process and/or purchase arrangements. Such drugs are referred to herein as "Specialty Pharmacy Drugs." Examples of Specialty Pharmacy Drugs include biotechnology drugs and certain compounds. For purposes of this Agreement "WHI Specialty Pharmacy Drugs" will mean those Specialty Pharmacy Drugs dispensed via WHl's parent cornpany's Specialty Pharmacy distribution system ("WHI Specialty Pharmacy System"). The rates for the dispensing of any WHI Specialty Pharmacy Drugs will be as set forth in the list of Specialty Pharmacy Drugs prices, available upon written request from WHI, as updated from time to tirne by WHI, provided that to the extent any WHI Specialty Pharmacy Drugs are not included on such list, the rates in Section LA. will apply. County further acknowledges that the dispensing of Specialty Pharmacy Drugs may be limited to the Participating Mail Service Pharmacy, other subcontracted mail service provider, or certain Participating Pharmacies only. To the extent WHI is required to enter into a unique arrangement with a pharmacy for the dispensing of certain Specialty Pharmacy Drugs due to reasons such as, but not necessarily limited to, limited distribution or days' supply availability, County will pay WHI at the then current rates at which WHI pays the dispensing pharmacy. Notwithstanding the foregoing, if the rate set forth in this Article /I is less than the Member copayment fee, WHI will receive as reimbursement, at a minimum, the lower of the Member copayment fee or the dispensing pharmacy's usual retail charge. 2. The recitals set forth above are incorporated herein and made a part of this Amendment. This Amendment is hereby added to and incorporated into the Agreement. I AMENDMENT ONE PBM AGREEMENT 2009. draft I The terrns and conditions of this Amendment will control in the event of any conflict with the terms and conditions set forth elsewhere in the Agreement or by subsequent amendrnent in writing, signed by the parties, except to the extent that such provisions of this Amendment are specifically referred to and amended or superseded by such amendments. IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed on the day of . 200_. (SEAL) Attest: DANNY L. KOLHAGE, CLERK OF MONROE COUNTY, FLORIDA By BOARD CF COJNTY CO\1fvflSSrnERS By Deputy Clerk Mayor/Chairman By WALGREENS HEALTH INITIATIVES, INC. Br.::::~ ~ /~ Printed Name~ ~'" Lk41..~ Title: .211'1 /(J~ St:JU~.- J (CORPORATE SEAL) ATTEST: 2 AMENDMENT ONE PBM AGREEMENT 2009. draft I MONROE COUNTY CONTRACT FOR Prescription Management Plan Services THIS AGREEMENT is made and entered into this 4th day of September, 2008, by MONROE COUNTY ("COUNTY') a political subdivision of the State of Florida, whose address is 1100 Simonton Street, Key West, Florida 33040 and Walgreens Health Initiatives, Inc. ("CONTRACTOR"), whose address is 1411 lake Cook Road, Deerfield, I/Iinois 60015. RECITALS CONTRACTOR manages prescription benefit programs that include the dispensing of prescription drugs by and through a network of retail community pharmacies ("Participating Pharmacy(ies)") and arranges for prescription benefit management and claim processing services for sponsors of various health benefit plans or prograrns; CONTRACTOR also manages a prescription benefit that includes the dispensing of prescription drugs by a mall service pharmacy ("Participating Mail Service Pharmacy"); COUNTY desires to arrange for the provision of presCription services to Members (as defined in Section 2.4, below) through Participating Pharmacies and/or Participating Mail Service Pharmacy, as well as preSCription benefit management and claim processing services by and through CONTRACTOR; and CONTRACTOR is willing to make available preSCription services to Mernbers through its network of Participating Pharmacies and Participating Mail Service Pharmacy and to provide pharmacy benefit management and claim processing services to COUNTY upon the terms and conditions hereinafter set forth. Therefore, in consideration of the covenants and agreements set forth herein, COUNTY and CONTRACTOR agree as follows: Section 1. SCOPE OF SERVICES 1.1 CONTRACTOR shall do, perform and cany out in a profeSSional and proper manner certain duties as described in the Scope of Services - Exhibit A - which is attached hereto and made a part of this agreement, for COUNTY. 1.2 CONTRACTOR warrants that it is authorized by law to engage in the performance of the activities herein described, subject to the tenns and conditions set forth in this Agreement. The CONTRACTOR shall at all times exercise independent, professional jUdgrnent and shall assume profeSSional responsibility for the services directly provided by CONTRACTOR. CONTRACTOR shall provide services using the following standards, as a minimum requirement: A. The CONTRACTOR shall maintain adequate staffing levels to provide the services required under this Agreement resulting from CONTRACTOR's response to RFP-PER-162-204-2008-POR/CU, including CONTRACTOR's deviations ("RFP"). 8. CONTRACTOR'S personnel shall not be employees of or have any contractual relationship with the COUNTY. To the extent that CONTRACTOR uses subcontractors or independent contractors, this Agreement specifically requires that subcontractors and independent I ,\fpI1l0C Counryv,lll R2 ()l)!l42()OS lorSlrtf contractors shall not be an ernployee of or have any contractual relationship with COUNTY. C. All CONTRACTOR'S personnel engaged in performing services under this Agreement shall be fully qualified, and, if required, to be authorized or permitted under State and local law to perform such services. SectIon 2. COUNTY'S RESPONSIBiliTIES 2.1 Provide all best available information as to the COUNTY'S requirements for its "Prescription Management Plan Services." 2.2 Designate in writing a person with authority to act on the COUNTY'S behalf on a matters concerning its Prescription Management Plan Services, as described herein. 2.3 Provide a schedule that is mutually agreeable to the COUNTY and CONTRACTOR. 2.4 Mernber. As used in this Agreement, the term "Member" means any person (including any eligible dependent) who is enrolled or covered under a benefit plan or health care program sponsored or rnaintained by COUNTY and whose enrollment, copayment and benefit coverage are communicated by COUNTY to CONTRACTOR in accordance with the terms of this Agreement. 2.5 Benefit/Eliaibilitv Information. COUNTY will provide CONTRACTOR with its benefit design summary and all other information required by CONTRACTOR for the implementation of services under this Agreement at least 30 days prior to their implementation or upon such other timeframe as may be agreed between the parties in writing. Such information will be in a format acceptable to CONTRACTOR and will include, without limitation: Member enrollment, eligibility and benefit coverage information such as, copayment, deductible limits, covered drugs, days' supply, and participating physicians. COUNTY is further obligated, during the term of this Agreement, to provide updates to the foregoing benefit design summary and other information promptly following each change thereto. This information will be transmitted by CONTRACTOR to Participating Pharmacies and the Participating Mail Service Pharmacy at the time of dispensing through the online electronic transmission link maintained between CONTRACTOR and Participating Pharmacies and the Participating Mail Service Pharmacy ("Online Adjudication System"). COUNTY is solely responsible for the accuracy, completeness, reliability, and timeliness of all information provided to CONTRACTOR and acknowledges CONTRACTOR's reliance thereupon. Any errors or omissions in the information are the sole responsibility of COUNTY. COUNTY may not deny claims submitted by any Participating Pharmacy or the Participating Mail Service Pharmacy for payment subsequent to such Participating Pharmacy or the Participating Mail Service Pharmacy receiving approval via the Online Adjudication System. 2.6 10 Cards. COUNTY will provide all Members with a standard identification card whether issued by CONTRACTOR or issued by COUNTY and approved by CONTRACTOR. The identification cards will contain, without limitation, the Member's identification number and full name of Member. Identification cards will be used only for Member identification. not for Member eligibility, which is established at the time of dispensing through the Online Adjudication System. 2.7 Formulary Manaoement. COUNTY authorizes CONTRACTOR, as its prescription benefit manager, to perform formulary management and other services described in this Agreement. subject to the following terms and conditions: (a) COUNTY represents that it has adopted CONTRACTOR's formulary as part of its prescription benefit plan design and that its benefit plan design in no way prohibits COUNTY from implementing formulary management services performed by .2 ~Illnr(le C'ounly-W/H R2 t)(!l)~~(~),~ Ihl" 111' CONTRACTOR, the Participating Pharmacies, or the Participating Mail Service Pharmacy hereunder, such as, but not necessarily limited to, generic or therapeutic prescription drug substitutions and any other measures that may be appropriate to effectuate formulary management. Notwithstanding the foregoing, the parties acknowledge that the prescribing phYSiCian has ultimate authority to determine which drug is prescribed to a Member. COUNTY will notify CONTRACTOR in advance of any benefit plan design changes that may materially affect CONTRACTOR's ability to perform formulary management and/or other services described in this Agreement. COUNTY may not sell, distribute, or otherwise provide CONTRACTOR's fonnulary to any third party without CONTRACTOR's prior written consent, except that COUNTY will ensure that CONTRACTOR's formulary is distributed to Members and Members' physicians, either directly or by requiring Members to provide the formulary to their physicians. (b) COUNTY acknowledges that, as a result of the formulary management services referenced above, CONTRACTOR may receive rebates or other incentive payments from certain drug manufacturers or others, either directly or indirectly, in connection with prescription drugs dispensed hereunder and reported by CONTRACTOR to such manufacturers or others ("Rebates"). COUNTY hereby appoints CONTRACTOR as COUNTY's exclusive agent, and certifies that CONTRACTOR is authorized to act on COUNTY's behalf, for the purpose of negotiating and arranging, either directly or indirectly, Rebate opportunities in connection with prescription drugs dispensed to Members under this Agreement. Accordingly, COUNTY: (i) represents that it has no direct or indirect arrangements, either oral or written, with drug manufacturers or others for rebates, discounts, or other incentive payments on prescription drugs dispensed to Members pursuant to this Agreement and agrees not to enter into any such arrangement during the term of this Agreement; and (ii) agrees to cooperate fully with CONTRACTOR and execute any documents in addition to this Agreement that may reasonably be necessary for either CONTRACTOR or COUNTY to partiCipate in any Rebate arrangements. (c) COUNTY will notify CONTRACTOR if it receives any funding for the provision of prescription services to Members from Medicaid, Medicare, or any other state or federal health care program. In addition, if COUNTY becomes aware that any Members' prescription claims are to be filed for reimbursement with Medicaid, Medicare, or any other state or federal health care program, COUNTY will immediately notify CONTRACTOR, clearly identifying all involved Members. COUNTY will COoperate with CONTRACTOR should any issue arise with respect to the improper receipt of any Rebates, and will return the full amount of any Rebates to be refunded and pay any penalties resulting therefrom. (d) COUNTY acknowledges and agrees that CONTRACTOR may retain any and all Rebates received as part of the reasonable compensation for pharmacy benefit management services; provided, however, that CONTRACTOR will make CONTRACTOR Payments (as defined in Exhibit B, which is attached hereto and made part of this Agreement) to COUNTY, subject to the terms and conditions set forth in this Section 2.7 and in Exhibit B. COUNTY further acknowledges that such payment rates, interest on retained Rebates, if any. and other service charges set forth in Exhibit B reflect the agreed Upon compensation due CONTRACTOR for the services provided. COUNTY is responsible for the disclosure and/or distribution of such amounts to the entity that is ultimately responsible for the payment of pharmacy claims, if not COUNTY. COUNTY understands that in obtaining Rebates on behalf of its clients, CONTRACTOR may utilize the services of a claims aggregator where in CONTRACTOR's jUdgement as a prescription benefit manager such services may be more advantageous to its clients. 3 Monrll"CuurHY'\\/f1 R21)')1)4~()IJ,~ (ills)nf To that extent, there may be a fee charged by the claims aggregator for such services, and the Rebates received by CONTRACTOR will be reduced by the amount of such claims aggregator fees. (e) COUNTY acknowledges that the amount of CONTRACTOR Payments described In Exhibit B Is based upon the value of Rebates CONTRACTOR expects to receive as a result of (i) COUNTY's adoption and use of CONTRACTOR's formulary and any benefit design requirements associated therewith (such as, but not limited to, therapeutic substitution programs, multi-tiered copay structures, etc.), and (ii) current marketplace conditions, including drug patent status. Accordingly, to the extent CONTRACTOR determines that any changes to COUNTY's benefit design or the formulary utilized (whether such changes are requested by COUNTY or made by CONTRACTOR in response to changing marketplace conditions, including drug patent status) may adversely impact the value of Rebates CONTRACTOR is likely to receive hereunder, CONTRACTOR will initiate renegotiations with COUNTY of the CONTRACTOR Payment amount. Notwithstanding anything to the contrary elsewhere in this Agreement, if no agreement can be reached within 30 days, CONTRACTOR Payments will immediately cease accruing to COUNTY and CONTRACTOR will have no obligation to continue making CONTRACTOR Payments thereafter, including any CONTRACTOR Payments that have accrued, but have not yet been paid. (f) Notwithstanding any provision herein to the contrary, CONTRACTOR Payments will immediately cease accruing to COUNTY and COUNTY hereby expressly authorizes CONTRACTOR to retain any and all CONTRACTOR Payments that have accrued to such date, upon the occurrence of any of the following: (i) COUNTY's failure to make any payments when due hereunder or COUNTY's breach of any other obligations set forth in this Agreement; (ii) termination of this Agreement by either party or receipt by CONTRACTOR of notice from COUNTY that COUNTY intends to terminate any portion hereof which in CONTRACTOR's sole discretion may adversely impact the value of Rebates CONTRACTOR receives hereunder; (iii) CONTRACTOR's exercise of its right to terminate any clinical program services, including formulary managernent, under Exhibit A, if, in CONTRACTOR's sole discretion, such termination may adversely impact the value of Rebates CONTRACTOR receives hereunder; and (iv) any change in the pharmaceutical industry practices or marketplace conditions that may affect the payment of Rebates. (g) For those clinical prograrns that may require certain medical claims information (such as, but not necessarily limited to, retrospective drug utilization review), and subject to Section 34.1, below, COUNTY will provide to CONTRACTOR and/or its designee all complete and accurate Member-related medical claims and record information that CONTRACTOR reasonably requests, in a format and time frame mutually acceptable to the parties. 2.8 Communication With Members. Subject to Section 34.4, below, COUNTY will accurately describe and represent the role of CONTRACTOR, Participating Pharmacies, and the Participating Mail Service Pharmacy in providing services and programs that COUNTY has retained CONTRACTOR to undertake hereunder in all communications, including marketing and advertising materials, to Members and potential Members. COUNTY acknowledges and agrees that it is responsible for disclosing to Members any and all matters relating to COUNTY's benefit plan as are required by applicable law to be disclosed, including any matter relating to the Rebates or the calculation of copayments, coinsurance amounts, deductibles, use of formulary, or any other amounts that are payable by a Member in connection with COUNTY's benefit plan. -l Monro.: Counry-WHl R2 1)<)i)421)l)~ Ibr:,)ltt' 2.9 Online Access. To the extent CONTRACTOR has provided COUNTY with access to the Online Adjudication System, the systern on which CONTRACTOR files COUNTY's management reports ("Online Report System"), and/or any other electronic system maintained or operated by CONTRACTOR (all such foregoing systems, hereinafter collectively referred to as the "System"), the following terms and conditions will apply. For purposes of this paragraph, the term "access" means the ability of COUNTY, as agreed to by CONTRACTOR, to view, enter, and/or manipulate information residing on the System. COUNTY acknowledges that as a condition precedent to receiving or continuing to receive access to the System, COUNTY will (i) comply with the manuals and other instructions provided by CONTRACTOR for such access; (ii) safeguard the access code(s) and any downloads of information; (iii) comply with applicable laws, regulations, and COUNTY's policies and procedures concerning the protection of patient information; (iv) notify CONTRACTOR immediately if any information accessed online is inconsistent with COUNTY's benefit design; (v) supervise all employees and/or third-party agents accessing such systems on COUNTY's behalf ("Users") and administer all passwords to ensure there is no misuse or abuse of the access rights granted herein; and (vi) inform all Users of the requirements set forth in this paragraph. COUNTY is solely responsible for the accuracy, completeness, reliability, and timeliness of all information it enters into the System. Any errors or omissions in the information are the sole responsibility of COUNTY. COUNTY is further responsible for providing, at its own expense, any hardware and/or software that may be necessary to effectuate access to the System, and for paying all telecommunication access fees. 2.10 Web Link. Upon request from COUNTY and written consent from CONTRACTOR, CONTRACTOR hereby grants to COUNTY a nonexclusive, non-transferable right to establish a link to CONTRACTOR's web site(s). CONTRACTOR grants to COUNTY a nonexclusive, non- transferable right to use, in connection with establishing this web link, the graphical image file containing CONTRACTOR's copyrighted logo as such is selected by COUNTY and correlated text as approved in writing by CONTRACTOR ("Image"). Such use is limited to the purposes of establishing the link, defining the web link specifications, and other purposes approved by CONTRACTOR. COUNTY agrees to include such attributions, disclaimers and restrictions on the COUNTY's site relating to the use of the link as CONTRACTOR may reasonably specify. The CONTRACTOR Marketing Department will assist COUNTY in this process. COUNTY may not modify or alter the Irnage. COUNTY assumes all costs and responsibility for implementing the Image on the authorized web sites. COUNTY acknowledges and agrees that CONTRACTOR is the owner of the exclusive right to use CONTRACTOR trademarks and service marks, including the Image, and any registrations therefore. COUNTY agrees that it will not use the CONTRACTOR trademarks or service marks, including the Image, other than as expressly provided herein. Section 3. TERMS OF AGREEMENT 3.1 The initial term of this Agreement shall commence on October 1, 2008 and shall continue in effect for three (3) years from the date hereof, unless and until terminated pursuant to this Section 3 ("Initial Term"). Upon expiration of the Initial Term, this Agreement shall automatically renew for Successive one (1) year terms ("Renewal Period"), unless otherwise terminated by either party for any reason by written notice to the other party delivered at least ninety (90) days prior to the end of the Initial Term or any Renewal Period thereafter. This Section 3.1 is subject to the remaining provisions of this entire Section 3 and any other termination rights that may be stated elsewhere in this Agreement. 3.2 If either party desires to modify this Agreement, it shall notify the other in writing at least thirty (30) days prior to the effective date of such modification. In the case of proposed modification the party receiving the notitication of the proposed modification shall itself notify the other party within ten (10) days after receipt of notice of its agreement to the proposed modification. F ai/ure to do so 5 !\!"'lI"l' ("lttnfy-\'. fir RJ 1)'I1)-121)1).~ Ihrs) HI' shall tenninate this Agreement as of September 30111 of the COUNTY'S applicable plan year. This Agreement may not be amended except in a writing approved by the Board of County Commissioners, Monroe County, Florida and CONTRACTOR. Section 4. COMPENSATION Unless otherwise stated herein, compensation to CONTRACTOR shall be $0.25 per net paid claim. Section 5. PAYMENT TO CONTRACTOR 5.1 PaYment Securi1y. From time to time during the course of this Agreement CONTRACTOR may request, and COUNTY will promptly provide to CONTRACTOR, audited financial statements which CONTRACTOR will use for the sole purpose of assessing the likelihood that COUNTY will be able to satisfy its payment obligations hereunder. If, for any reason, at any time during the term of this Agreement, CONTRACTOR develops a reasonable concem that COUNTY may not make payments to CONTRACTOR within the timeframes required hereunder, CONTRACTOR will bill COUNTY and COUNTY will pay CONTRACTOR within 15 days a security deposit in an amount based upon COUNTY's recent claims payment experience, which CONTRACTOR deems necessary to satisfy such concern, but in no event no sum more than the eqUivalent of two (2) months' payment based on average past six (6) moths' payment record. CONTRACTOR, without limiting its right to pursue other available legal remedies, may use any security deposit amounts received hereunder to offset the failure by COUNTY, for any reason, to make payments pursuant to the terms of thIs Agreement CONTRACTOR will return any unused portion of the security deposit to COUNTY upon termination of this Agreement, provided that COUNTY has first satisfied all payment obligations hereunder. 5.2 Payment Rates and Terms. COUNTY will pay CONTRACTOR for prescription services provided hereunder by Participating Pharmacies and Participating Mail Service Pharmacy at the rates set forth in Exhibit B, attached hereto and incorporated herein, regardless of the amount billed by the dispensing Participating Pharmacy or Participating Mail Service Pharmacy. In addition, COUNTY will pay CONTRACTOR any and all administrative fees and/or other costs, charges, or reimbursement arnounts set forth in this Agreement. COUNTY is solely responsible for all payments required herein, and will make all such payments in accordance with the payment terms that follow and that may be specified elsewhere in this Agreement. (a) CONTRACTOR will invoice COUNTY fOllOWing the close of each monthly billing cycle. Such invoices may include, but not necessarily be limited to, prescription claims, administrative fees and/or any other costs and charges specified in this Agreement. The CONTRACTOR must submit invoices to the Monroe County Employee Services Division, Benefits Office. Subject to Section 5.4., below, the respective office supervisor and the Director of Employee Services, will review the request, note hislher approval on the request and forward it to the Clerk for payment. (b) COUNTY will pay all invoices in accordance with the Local Governrnent Prompt Pay Act (the "Act") if the Act requires payment sooner, and accOmpanying each payment will be a complete explanation of the claims for which payment is being made. Payment date as used in this Agreement will mean the date payment is to be delivered to the location designated in this Agreement as follows: () \lqf)Itl'-' Cnunl) ~Wf/I Ie li'iI!.t:II"S (nr.,! Ilf Walgreens Health Initiatives, Inc. P. O. Box 93741 Chicago, Il 60673-3741 All sums owed by COUNTY will bear interest of 1 % per month from the date payment Is due until paid; however, in no event will such interest rate be greater than the rate permitted by law. (c) COUNTY acknowledges and agrees that CONTRACTOR has no obligation to pay claims for prescription services provided by Participating Pharmacies and Participating Mail Service Pharmacy until COUNTY makes such funds available to CONTRACTOR for the payment of such claims. COUNTY further acknowledges and agrees that CONTRACTOR may subcontract certain services provided hereunder, including those covered under the administrative or ancillary fees set forth in Article I of Exhibit B, and that COUNTY's timely payment for such services is required for CONTRACTOR to pay its subcontractors, as applicable. 5.3 Continuation of this Agreement is contingent upon annual appropriation by Monroe County. 5.4 No Withholds. At no time may COUNTY withhold payment for services provided by CONTRACTOR, Participating Pharmacies, or Participating Mail Service Pharmacy hereunder nor pay an amount less than that billed by CONTRACTOR. In the event that CONTRACTOR determines that an adjustment is due COUNTY, CONTRACTOR will make an appropriate adjustment to its invoices. 5.5 Service Susoension. In the event that COUNTY fails to rernit to CONTRACTOR the appropriate payment amounts on or prior to the due date specified in this Agreement, CONTRACTOR will have the right, at Its sore option, to Suspend and/or tenninate immediately all pharmacy benefit services provided to COUNTY and Members, CONTRACTOR may notify Participating Pharmacies and Participating Mail Service Pharmacy immediately online that prescription services to COUNTY and Members have been suspended or terminated, as the case may be, due to COUNTY's failure to meet its payment obligations as set forth in this Agreement. Upon such notification, Participating Pharmacies and/or Participating Mail Service Pharmacy may cease providing prescription services to COUNTY and Members and, in CONTRACTOR's sole discretion and notwithstanding Section 34.7, below, Participating Phannacies and/or ParticipaUng Maii Service Phannacy will have the right to pursue any legal remedy directly against COUNTY for any breach of COUNTY's payment obligations. COUNTY will be solely responsible for any and all costs associated with CONTRACTOR's collection of any delinquent amounts. Section 6. CONTRACT TERMINATION 6.1 Notwithstanding Section 3.1 above, COUNTY may terminate this Agreement because of the failure of CONTRACTOR to materially perform its obligations under the Agreement and such termination will be effective 30 days after written notice of breach has been provided to CONTRACTOR, unless such obligation have been perfonned prior to Ihe end ollhe 30 day period. Further notwithstanding Section 3.1 above, CONTRACTOR may terminate this Agreement because of the failure of CONTRACTOR to materially perform ils obligations under the Agreement, including, but not limited to, COUNTY's failure to pay CONTRACTOR for pharmacy claims and all other required fees, costs and charges within the time periOd specined in this Agreement, and such termination wil/ be effective 30 days after written notice of breach has been provided to CONTRACTOR, unless such obligation have been perfonned prior to the end of Ihe 30 day 7 r"f"n"". C'nunll',W/1f R2 1)')(l12()I)R Ihl..lr11 period. Either party may terminate this Agreement with or without cause upon ninety (90) days notice to the CONTRACTOR. COUNTY shall pay CONTRACTOR for work perfonned through the date of tennlnation. 6.2 Waiver. No waiver by CONTRACTOR with respect to any breach or default of any right or remedy and no course of dealing may be deemed to constitute a continuous waiver of any other breach or default or of any other right or remedy unless such waiver is expressed in writing by CONTRACTOR to COUNTY. 6.3 Continuino Obliaation. Termination will have no effect upon the rights or obligations of the parties arising out of any transactions occulTing prior to the effective date of such tennination, unless set forth otherwise herein. CONTRACTOR will assume no responsibility for Processing claims submitted to CONTRACTOR by Participating Phannacies, Participating Mail Service Phannacy, or Members more than 90 days following the termination date of this Agreement; CONTRACTOR will forward all such claims to COUNTY for adjudication and payment 6.4 Insolvency. In addition to termination rights contained elsewhere in this Agreement each of the following acts or omissions by either party will be considered a default, and will give the nondefaulting party the rights herein contained: if either party to this Agreement voluntarily files a petition in or for bankruptcy, reorganization, or an arrangement with creditors; .if either party makes a general assignment for the benefit of creditors; if either party fails to pay, or admits in writing its inability to pay, debts as they become due; if a trustee, receiver, or other custodian is appointed for either party; or, if any other case or Proceeding under any bankruptcy is commenced in respect to either party, then the nondefaulting party may immediately terminate this Agreement and all further rights and obligations hereunder (except as otherwise Provided in Section 6.3 or elsewhere in this Agreement) by giving written notice to the other party. Section 7. CONTRACTOR'S ACCEPTANCE OF CONDITIONS 7.1 CONTRACTOR hereby agrees that he has carefully examined the RFP, and this Agreement and has made a determination that it has the personnel, equipment, and other requirements suitable to perform this work and assumes full responsibility therefore. The provisions of this Agreement shall control any inconsistent proviSions contained in the RFP. All specifications in the RFP have been read and carefully considered by CONTRACTOR, who understands the same and agrees to their sufficiency for the work to be done. Under no circumstances, conditions, or situations shall this Agreement be more strongly construed against COUNTY than against CONTRACTOR. 7.2 The passing, approval, and/or acceptance by COUNTY of any of the services furnished by CONTRACTOR shall not operate as a waiver by COUNTY of strict compliance with the terms of this Agreement. and specifications covering the services. 7.3 CONTRACTOR agrees that County Administrator or its designated representatives may visit CONTRACTOR'S facility(ies) to conduct random evaluations of services in accordance with Section 9. 7.4 CONTRACTOR has, and shall maintain throughout the term of this Agreement. appropriate licenses and approvals required to conduct its business. and that it will at all times conduct its business activities in a reputable manner. Proof of such licenses and approvals shall be submitted to COUNTY Upon reasonable request. x \-fullme C"lllllry-WHf R2 ()'!().J.2()()!-; Ihr~) III Section 8. NOTICES Any notice required or permitted under this agreement shall be in writing and hand delivered or sent to the other party postage prepaid, certified mail, returned receipt requested, to the following: To the COUNTY: Sr. Administrator, Benefits 1100 Simonton Street, Suite 2-268 Key West, Florida 33040 To the CONTRACTOR: Walgreens Health Initiatives Attn: PBM Legal (BRS) 1411 Lake Cook Road, MS L319 Deerfield, IL 60015 cc: Walgreens Health Initiatives Attn: COUNTY Services Director, Eastern Region 7680 Universal Blvd., Suite 460 Orlando, FL 32819 Section 9. RECORDS CONTRACTOR shall maintain all books, records, and documents directly pertinent to performance under this Agreement in accordance with generally accepted accounting prinCiples consistently applied. COUNTY will maintain records relating to its responsibilities under this Agreement for a period of one year from the date of service, or such longer period as may be required under applicable law, including, but not necessarily Iirnited to, eligibility records for Members and payment Information regarding services provided by CONTRACTOR hereunder and prescription services rendered by Participating Pharmacies and Participating Mail Service Pharmacy to Mernbers. Each party to this Agreement or their authorized representatives, during normal working hours and upon prior written and reasonable notice, no more than once a year and not during November through January, 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 one year following the termination of this Agreement. If an auditor employed by the COUNTY or Clerk determines that monies paid to CONTRACTOR pursuant to this Agreement were spent for purposes not authorized by this Agreement, the CONTRACTOR 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 CONTRACTOR. Section 10. EMPLOYEES SUBJECT TO COUNTY ORDINANCE NOS. 010 AND 020-1990 The CONTRACTOR 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. 9 \f"'",)cC.llll1ty-'.VIII R2 {)'11)4~(If)S lh,:;} 111' Section 11. GOVERNING LAW, VENUE, INTERPRETATION, COSTS AND FEES 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 the 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. Section 12. SEVERABILITY If any term, covenant, condition or provision of this Agreement (or the application thereof to any circumstance or person) shall be declared invalid or unenforceable to any extent by a court of competent jurisdiction, the remaining terms, covenants, conditions and provisions of this Agreement, shall not be affected thereby; and each remaining term, covenant, condition and provision of this Agreement shall be valid and shall be enforceable to the fullest extent permitted by law unless the enforcement of the remaining terms, covenants, conditions and provisions of this Agreement would prevent the accomplishment of the original intent of this Agreement. The COUNTY and CONTRACTOR agree to immediately 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. Section 13. ATTORNEY'S FEES AND COSTS The COUNTY and CONTRACTOR 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. Section 14. BINDING EFFECT The terms, covenants, conditions, and Provisions of this Agreement shall bind and inure to the benefit of the COUNTY and CONTRACTOR and their respective legal representatives, successors, and assigns. Section 15. AUTHORITY Each party represents and warrants to the other that the execution, delivery and performance of this Agreernent have been duly authorized by all necessary County and corporate action, as required by law. Section 16. ADJUDICATION OF DISPUTES OR DISAGREEMENTS COUNTY and CONTRACTOR agree that all disputes and disagreements shall be attempted to be resolved by meet and confer sessions between representatives of each of the parties If the issue or issues are still not resolved to the satisfaction of the parties, then any party shall have the right to seek such relief or remedy as may be provided by this Agreement or by Florida law. This Agreement shall not be subject to arbitration. Section 17. 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 10 1I"IIIIIrlll'C'lItlf1l\,\\HI R211'Jri.12()I)S ih"'llI CONTRACTOR 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 CONTRACTOR specifically agree that no party to this Agreement shall be required to enter Into any arbitration proceedings related to this Agreement. Section 18. NONDISCRIMINATION COUNTY and CONTRACTOR 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 discrirnination has occurred, this Agreement terminates without any further action on the part of any party, effective the date of the court order, only after CONTRACTOR has exhausted all judicial appeals. COUNTY or CONTRACTOR 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: Title VII of the Civil Rights Act of 1964 (PL 88-352) which prohibits discrimination on the basis of race, color or national origin; 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; Section 504 of the Rehabilitation Act of 1973, as amended (20 USC s. 794), which prohibits discrimination on the basis of handicaps; The Age Discrimination Act of 1975, as amended (42 USC ss. 6101-6107) which prohibits discrimination on the basis of age; The Drug Abuse Office and Treatment Act of 1972 (PL 92- 255), as amended, relating to nondiscrimination on the basis of drug abuse; 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; The Public Health Service Act of 1912, ss. 523 and 527 (42 use ss. 690dd-3 and 290ee-3), as amended, relating to confidentiality of alcohol and drug abuse patent records; Title VIII of the Civil Rights Act of 1968 (42 USC s. et seq.), as amended, relating to nondiscrimination in the sale, rental or financing of housing; The Americans with Disabilities Act of 1990 (42 USC s. 1201 Note), as may be amended from time to time, relating to nondiscrimination on the basis of disability; Any other nondiscrimination provisions in any Federal or state statutes which may apply to the parties to, or the subject matter of, this Agreement. Section 19. COVENANT OF NO INTEREST COUNTY and CONTRACTOR 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. Section 20. 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. Section 21. NO SOLICITATION/PAYMENT The COUNTY and CONTRACTOR 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 bonatide employee working solely for it, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award 11 \1"III<>\' ("'''II\''Sl/lli~ 11'IiI.l~!il!." 1111>1111 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. Section 22. PUBLIC ACCESS The COUNTY and CONTRACTOR shall allow and permit reasonable access to, and inspection of, all documents, papers, letters or other materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the COUNTY and CONTRACTOR in conjunction with this Agreement; and the COUNTY shall have the right to unilaterally cancel this Agreement upon violation of this provision by CONTRACTOR. Section 23. NON-WAIVER OF IMMUNITY Notwithstanding the provisions of Sec. 768.28, Florida Statutes, the participation of the COUNTY and the CONTRACTOR 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. Section 24. PRIVILEGES AND IMMUNITIES All of the privileges and immunities from liability, exemptions from laws, ordinances, and rules and pensions and relief, disability, workers' compensation, and other benefits which apply to the activity of officers, agents, or employees of any public agents or employees of the COUNTY, when performing their respective functions under this Agreement within the territorial Iirnits of the COUNTY shall apply to the same degree and extent to the performance of such functions and duties of such officers, agents, volunteers, or employees outside the territorial limits of the COUNTY. Section 25. LEGAL OBLIGATIONS AND RESPONSIBILITIES Non-Delegation of Constitutional or Statutory Duties. This Agreement is not intended to, nor shall it be construed as, relieving any participating entity from any obligation or responsibility imposed upon the entity by law except to the extent of actual and timely performance thereof by any participating entity, in which case the performance may be offered in satisfaction of the obligation or responsibility. Further, this Agreement is not intended to, nor shall it be construed as, authorizing the delegation of the constitutional or statutory duties of the COUNTY, except to the extent permitted by the Florida constitution, state statute, and case law. Section 26. NON-RELIANCE BY NON-PARTIES No person or entity shall be entitled to rely upon the terms, or any of them, of this Agreement to enforce or attempt to enforce any third-party claim or entitlement to or benefit of any service or program contemplated hereunder, and the COUNTY and the CONTRACTOR agree that neither the COUNTY nor the CONTRACTOR or any agent, officer, or employee of either shall have the authority to inform, counsel, or otherwise indicate that any particular individual or group of individuals, entity or entities, have entitlements or benefits under this Agreement separate and apart, inferior to, or superior to the community in general or for the purposes contemplated in this Agreement. I_~ .'vlr>nl'Oc C"unrJ-\VHI R2 1)')f)4200g (nr.;}rlf Section 27. ATTESTATIONS CONTRACTOR has executed a Public Entity Crime Statement, an Ethics Statement, a Drug- Free Workplace Statement, a Lobbying and Conflict of Interest Clause, and a Non-Collusion Agreement, which were provided with its response to RFP. Section 28. NO PERSONAL LIABILITY No covenant or agreement contained herein shall be deemed to be a covenant or agreement of any member, officer, agent or employee of Monroe County in his or her individual capacity, and no member, officer, agent or employee of Monroe County shall be liable personally on this Agreement or be subject to any personal liability or accountability by reason of the execution of this Agreement. Section 29. EXECUTION IN COUNTERPARTS This Agreement may be executed in any number of counterparts, each of which shall be regarded as an original, all of which taken together shall constitute one and the same instrument and any of the parties hereto may execute this Agreement by signing any such counterpart. Section 30. SECTION HEADINGS Section headings have been inserted in this Agreement as a matter of convenience of reference only, and it is agreed that such section headings are not a part of this Agreement and will not be used in the interpretation of any Provision of this Agreement. SectIon 31. INSURANCE POLICIES 31.1 The CONTRACTOR will not be permitted to commence work governed by this contract until satisfactory evidence of the required insurance has been furnished to the COUNTY as specified below. Delays in the commencement of work, resulting from the failure of the CONTRACTOR to provide satisfactory evidence of the required insurance, shall not extend deadlines specified in this contract and any penalties and failure to perform assessments shall be imposed as if the work commenced on the specified date and time, except for the CONTRACTOR'S failure to provide satisfactory evidence. 31.2 The CONTRACTOR shall maintain the required insurance throughout the entire term of this contract and any extensions specified in the attached exhibits. Failure to comply with this Provision may result in the immediate Suspension of all work until the required insurance has been reinstated or replaced and/or termination of this Agreement and for damages to the COUNTY. Delays in the completion of work resulting from the failure of the CONTRACTOR to maintain the required insurance shall not extend deadlines specified in Ihis contract and any penalties and failure to perform assessments shall be imposed as if the work had not been suspended, except for the CONTRACTOR'S failure to maintain the required insurance. 31.3 The CONTRACTOR shall provide, to the COUNTY, as satisfactory evidence of the required insurance, either: Certificate of Insurance or A Certified copy of the actual insurance policy. 31.4 The County, at ifs sole option, has Ihe right to reasonably request a certified copy of any or all insurance poliCies required by this Agreement. 315 All insurance policies must specify thai they are nol subject to cancellation, non-renewal, I3 "!O/1ll1C' (''''111/1 - WH I R2 II'I()~~()OR (hrs) 111' material change, or reduction in coverage unless a minimum of thirty (30) days prior notification is given to the County by the insurer. 31.6 The acceptance and/or approval of the CONTRACTOR's insurance shall not be construed as relieving the CONTRACTOR from any liability or obligation assumed under this contract or imposed by law. 31.7 CONTRACTOR will maintain through its parent Corporation a program of self-insurance or commercial insurance policies in amounts consistent with industry standards, for general and profeSSional liability and such other insurance as may be necessary to insure CONTRACTOR, its employees and agents against any claim or claims for damages arising out of or in connection with its duties and obligations under this Agreement. In addition, CONTRACTOR will require Participating Pharmacies and Participating Mail Service Pharmacy either to self- insure or to acquire and maintain, at their sole expense, professional and malpractice liability insurance, as well as comprehensive general liability insurance to insure against any claim for damages arising by reason of Participating Pharmacies' or Participating Mail Service Pharmacy's provision of prescription services to Members hereunder. Section 32./NDEMNIF/CAT/ON 32.1 The CONTRACTOR does hereby consent and agree to indemnify and hold harmless the COUNTY, its Mayor, the Board of County Commissioners, appointed Boards and Commissions, Officers, and the Employees, and any other agents, individually and collectively, from all fines, suits, claims, demands, actions, costs, obligations, attorneys fees, or liability of any kind arising out of the sole negligent actions of the CONTRACTOR or willful nonperformance of the CONTRACTOR in carrying out its duties and obligations under the terms of this Agreement, and CONTRACTOR shall be solely responsible and answerable for any and all accidents or injuries to persons or property arising out of its performance of this Agreement. The amount and type of insurance coverage requirements set forth herein shall in no way be construed as limiting the scope of indemnity set forth in this paragraph. Further the CONTRACTOR agrees to defend and pay all legal costs attendant to acts attributable to the sole negligent act of the CONTRACTOR. 32.2 To the greatest extent allowed under Title XLU, Section 768.28 of the Florida Statutes, CONTRACTOR will indemnify, defend and hold harmless COUNTY, including COUNTY's employees and agents, from and against any and all claims or liabilities arising from the negligence of CONTRACTOR, its employees or agents In carrying out CONTRACTOR's duties and obligations under the terms of this Agreement. To the extent allowed by Section 768.28, Florida Statutes COUNTY will indemnify, defend and hold harmless CONTRACTOR, including CONTRACTOR's shareholders, directors, officers, employees, delegates, agents, representatives and parent and affiliated companies, from and against any and all claims or liabilities arising from (i) the implementation of COUNTY's benefit design (e.g., any provision or denial of treatment or coverage whether by omission, decision or design, etc.); (ii) the negligence of COUNTY, its employees or agents in carrying out COUNTY's duties and obligations under the terms of this Agreement; (Hi) COUNTY's failure to provide timely, complete, or accurate information necessary for CONTRACTOR to perform services hereunder and/or administer the prescription benefit, including, but without limitation, those services set forth in Exhibit A; and (iv) COUNTY's breach of any representation or warranty set forth in this Agreement. Under no circumstances will CONTRACTOR be liable to COUNTY or any third party for any indirect, special, incidental, or consequential damages, or for lost profits, notwithstanding CONTRACTOR's notice thereof. CONTRACTOR's liability to COUNTY under this Agreement, if any, will not exceed the total amount of compensation due CONTRACTOR for the most recently ascertainable one-year period immediately preceding the date on which the claim arose. CONTRACTOR will have no liability for any claim which is asserted by I..f \;1"11"",-, ('''untv. I,VI II R2 !1'Hl)If),~ I hl.,j 11/ COUNTY or any third party more than 60 days after COUNTY is or reasonably should have been aware of such claim. This Section 32.2 will survive the termination of this Agreement. 32.3 COUNTY acknowledges and agrees that neither CONTRACTOR, nor its shareholders, directors, officers, employees, delegates, agents, representatives, or parent and/or affiliated companies have any liability whatsoever to COUNTY or Members for the acts or omissions of any Participating Pharmacy or the Participating Mail Service Pharmacy (including, but not necessarily limited to, the acts or omissions of any Participating Pharmacy's or Participating Mail Service Pharmacy's employees or agents) in connection with such Participating Pharmacy's or Participating Mail Service Pharmacy's provision of services to COUNTY and/or Members, including, but not necessarily limited to, any of the following: (i) any actual or alleged malpractice, negligence or misconduct of any Participating Pharmacy or the Participating Mail Service Pharmacy; or (ii) the sale, compounding, dispensing, failure to sell, manufacture or use of any drug dispensed to a Member hereunder. This Section 32.3 will survive the termination of this Agreement. 32.4 At all times and for all purposes hereunder, the CONTRACTOR is an independent contractor and not an employee of the Board of County Commissioners. No statement contained in this agreement shall be construed so as to find the CONTRACTOR or any of his/her employees, contractors, servants or agents to be employees of the Board of County Commissioners for Monroe County. As an independent contractor the CONTRACTOR shall provide independent, professional judgment and comply with all federal, state, and local statutes, ordinances, rules and regulations applicable to the services to be provided. 32.5 The CONTRACTOR shall be responsible for the completeness and accuracy of its work, plan, supporting data, and other documents prepared or compiled in accordance with this Agreement, and shall correct at its expense all significant errors or omissions therein which . may be disclosed. The cost of the work necessary to correct those errors attributable to the CONTRACTOR and any actual damage incurred by the COUNTY as a result of additional costs caused by such errors will be chargeable to the CONTRACTOR. This proviSion shall not apply to any maps, official records, contracts, or other data that may be provided by the COUNTY or other public or semi-public agencies. 32.6 Unless otherwise indicated herein, the CONTRACTOR agrees that no charges or claims for damages shall be made by it for any delays or hindrances attributable to the COUNTY during the progress of any portion of the services specffied in this Agreement. Such delays or hindrances, if any, shall be compensated for by the COUNTY by an extension of time for a reasonable period for the CONTRACTOR to complete the work schedule. Such an agreement shall be made between the parties. Section 33. RELATIONSHIP BETWEEN COUNTY AND CONTRACTOR 33.1 Independent Contractors. The parties hereto are independent contracting parties, and nothing in this Agreement is intended to nor may anything in this Agreement be construed to create an agency, partnership, joint venture, employer/employee relationship, fiduciary relationship, or any other legal relationship between the parties other than or in addition to that of independent contracting parties. 33.2 Exclusivity. CONTRACTOR is the sole and exclusive provider of prescription benefit programs, prescription benefit management, and claim processing services to and on behalf of COUNTY and Members. COUNTY may not enter into or be a party to any agreement with any party or entity (other than CONTRACTOR) for the provision of prescription benefit programs, prescription benefit management, and claim processing services or any other services referenced in this Agreement during the term of this Agreement or any renewal hereof.o 15 i\l"rmlc'I~~"JfHV~\V1/1 R~ l/'11i.1211IJS rhr'l n( COUNTY's printed materials, including, but not necessarily limited to, direct mailings, brochures and newsletters may not reference any other provider of prescription benefit programs, preSCription benefit management, and claims processing services (except as otherwise stated in Section 34.4. of this Agreement). Nothing contained in this Agreement, however, will prohibit or limit CONTRACTOR's right to participate in other health care or prescription programs or to otherwise provide prescription benefit programs, preSCription benefit management, or claim processing services to other third parties. Section 34. GENERAL TERMS 34.1 Confidentiali of Member Health Information and Pro rieta Business Information. (a) The parties will maintain the confidentiality of all medical, prescription, and other patient-identifiable health information specifically relating to Members ("Member Health Informationff) in accordance with all applicable federal and state laws and regulations, Including the privacy regulations promulgated under the Health Insurance Portability and Accountability Act of 1996, as may be amended from time to time ("HIPAAff). COUNTY represents and warrants that it is in compliance with all requirernents and obligations applicable to COUNTY and its health plan under HIPAA, including but not limited to the requirement to secure written assurances from its "business associates" (as such term is defined in Title 45, Section 160.103, of the Code of Federal Regulations) regarding the protection of Member Health Information. COUNTY acknowledges that CONTRACTOR, as a business associate of COUNTY (or its.health plan), will have access to Member Health Information in order to provide the pharmacy benefit management services described herein and/or perform the obligations undertaken hereunder. COUNTY further acknowledges that Member Health Information may be obtained from and/or distributed to COUNTY, Participating Pharmacies, Participating Mail Service Pharmacies, and/or any other third party in connection with services provided hereunder, including any and all disclosures made by CONTRACTOR, such as, but not limited to those disclosures (i) made to obtain Rebates, to conduct operational assessments or in connection with provider audits conducted by CONTRACTOR or its agents or service providers; and (H) at COUNTY's request, such as, but not limited to, those made to third party administrators or to a new vendor upon transition of services following termination of this Agreement. COUNTY also acknowledges that CONTRACTOR intends to make Member Health Information available to (i) the subject Member via its website, using CONTRACTOR's customized online registration process for each Member; and (ii) COUNTY or other permitted third parties via the Internet or other electronic medium. COUNTY will promptly provide CONTRACTOR with written notice if it desires to limit any such communications described herein. COUNTY aCknOWledges that certain management reports, reporting packages, utilization data, preSCription claims information and/or clinical or formulary-related programs may contain Member Health Information. COUNTY further acknowledges that (i) its request to CONTRACTOR to disclose Member Health Information to any third party (i.e. broker, healthcare consultant, and/or third party administrator) constitutes COUNTY's direction and authorization to disclose such information to the third party; and (ii) CONTRACTOR will disclose such information pursuant to COUNTY's direction until such time as CONTRACTOR receives written notice from COUNTY to cease further disclosures. In the event of a conflict between the proviSions of this Section 34.1 (a) and the provisions of a fully executed business associate agreement between the parties, the fully executed business associate agreement will control. (b) The parties acknowledge that certain proprietary and/or confidential technical and business information may be disclosed between the parties. Such information may 16 J\fonme COllnty.Wflf R2 JJ<I()~200K ! /1',)111' include, without limitation, databases, trade secrets, reporting packages and formats, utilization and management reports, client specific prescription claims information, manuals, computer programs, software and clinical or formulary-related operations or programs (hereinafter collectively referred to as "Confidential Information"). The parties acknowledge and agree that the value of such Confidential Information may be lost if the receiving party does not maintain the proprietary nature or confidentiality of the information. Accordingly, during the term of this Agreement and for two years thereafter, each party will maintain the confidentiality of all Confidential Information, including, without limitation, implementing those precautions such party employs with respect to its own proprietary and confidential information and disclosing it only to those employees who have a need to know in order to effectuate the purpose(s) of this Agreement, and only after such employees have agreed to be bound by the terms of this Section 34.1 (b) In no event will either party use any Confidential Information to benefit itself or others, except to the extent expressly authorized by this Agreement. Notwithstanding the foregoing, the obligations of confidentiality do not apply to any Confidential Information which is or becomes generally known within the relevant industry (except as a result of a breach by a party of its obligations under this Agreement); or is required to be disclosed by deposition, interrogatory, request for documents, subpoena or court order. Furthermore, the parties acknowledge and agree that the term "Confidential Information" as used in this paragraph does not include aggregated and/or non-client specific information that is maintained and/or disclosed by either party in the normal course of their business operations. This Section 34.1 will survive the termination and/or expiration of this Agreement. 34.2 Construction. Each party acknowledges that it has been represented by legal counsel of its selection in the negotiation of this Agreement, each of which has participated in the drafting and negotiation of this Agreement. Accordingly, any rule of construction which construes this Agreement against the drafting party will have no application in the interpretation and enforcement of this Agreernent. 34.3 Assianment. CONTRACTOR may assign this Agreement to any third party or to any direct or indirect parent, subsidiary, affiliated company or successor company. Any such assignee will assume all obligations of CONTRACTOR under this Agreement. No assignment will relieve CONTRACTOR of responsibility for the performance of any obligations which have already occurred. This Agreement will inure to the benefit of and be binding upon CONTRACTOR, its respective successors and permitted assignees. 34.4 Advertising. Neither party may advertise or use any trademarks. service marks and/or symbols of the other party without first receiving the written consent of the party owning the mark and/or symbol, subject to the terms and conditions set forth in this paragraph. COUNTY may reference the name and the addresses of CONTRACTOR, Participating Pharmacies, and Participating Mail Service Pharmacy in informational brochures COUNTY provides to Members or potential Members. COUNTY represents and warrants that any and all descriptions and representations concerning CONTRACTOR and the services provided hereunder as communicated to Members and potential Members are true, accurate, and consistent with the terms of this Agreement. COUNTY will use due diligence to ensure the accuracy of the information herein described and will immediately correct incomplete or inaccurate information whether by its own discovery or at CONTRACTOR's direction. Any other reference to CONTRACTOR, Participating Pharmacies. or Participating Mail Service Pharmacy in any COUNTY materials must be pre-approved, in writing, by CONTRACTOR. CONTRACTOR may reference COUNTY's name, trademark, service mark and/or symbols to inform Members and the general public (i) of CONTRACTOR's role in providing prescription benefit management and other services and (ii) that Participating Pharmacies and Participating Mail Service Pharmacy are participating providers to COUNTY and Members. 17 'I.1<1I1P".c.'llflr;.WIII R2 r)')042()n,~ rnr,}11f 34.5 Force Maieure. The performance by either party hereunder will be excused to the extent of circumstances beyond such party's reasonable control, such as acts of God, including but not Iirnited to flood, tornado, earthquake, fire, or other natural disaster, as well as epidemic, war, civil disturbance, sabotage, acts of terrorism or other criminal acts, material destruction of facilities, and failures in electricity, heat, air, or telecommunications equipment. In such event, the parties will use their best efforts to resume performance as soon as reasonably poSSible under the circumstances causing the party's failure to perform. 34.6 Compliance with Law. Each party will comply with all applicable laws, rules, and regulations for each jurisdiction in which services are provided pursuant to this Agreement. Notwithstanding the foregoing, COUNTY acknowledges that CONTRACTOR has no responsibility to advise COUNTY regarding COUNTY's compliance with any applicable law, statutes, rules or regulations relating to the services provided hereunder. Furthermore, CONTRACTOR makes no representation or warranty that COUNTY's benefit plan design is in compliance with applicable law. COUNTY retains complete discretionary, binding and final authority to construe the terms of its health plan, to interpret ambiguous plan language, to make factual determinations regarding the payment of claims or provisions of benefits, to review denied c1airns, and to resolve Member complaints. Each party will cooperate with reasonable requests by the other party for information that the requesting party may need for its compliance with applicable laws, rules, and/or regulations. COUNTY represents it has no Members residing in Maine and will promptly notify CONTRACTOR if and when it learns of any. If a change in applicable law imposes a material financial, legal, or operational burden on CONTRACTOR's performance of services hereunder, CONTRACTOR will propose and forward to COUNTY an amendment to address such material burden. The amendment will become effective on the date stipulated, unless prior to the indicated effective date a written objection from COUNTY is received by CONTRACTOR. If COUNTY objects to an amendment, the amendment may not go into effect; provided, however, that CONTRACTOR, in its sole discretion, may terminate this Agreement within 30 days of its receipt of COUNTY's written objection (notwithstanding Section 6 of this Agreement). 34.7 No Third-Party Beneficiaries. No provision of this Agreement is intended to create or may be construed to create any third-party beneficiary rights in any person, including, but not limited to, any provider or Member. 34.8 Disclosure of Relationships. COUNTY acknowledges that CONTRACTOR has business relationships with certain manufacturers to develop products and services, such as clinical initiatives, disease management programs and general population research studies. COUNTY further acknowledges that from time to time, CONTRACTOR may receive grants or funding from manufacturers to help offset the costs associated with certain services including, but not limited to, non-product specific disease descriptions, patient and phYSician education materials and treatrnent information. CONTRACTOR may also receive funding from manufacturers to help support clinical residency programs that may be under the auspices of an educational institution and in accordance with CONTRACTOR's approved residency guidelines. COUNTY acknowledges that CONTRACTOR's business relationships with manufacturers, as described above, are not directly related to Members. In the event such business relationships are deemed related to or associated with Members. COUNTY agrees that such relationships and any funding derived therefrom are not considered Rebates under the terms of this Agreement. II{ f'd"l1f'OcC.lI;I1(\,,\,'HIIC flqIJ4~flfl~ </".;, fl( IN WQ"NESS WHI=~I:f)F, the parties hereto have caused these presents to be executed on the rl~_ dayof SQ..ft',200~ (SEAL) Attest: DANNY l. KOLHAGE, CLERK OF MONROE COUNTY, \ FLORIO~',:: BY~~~~ f3<l6RDa=COJNTY~ B~u0j(}~_- Mayor/Chairman By (CORPORATE Sf;AL) ATTEST: Title:Jf f'&i rf<0 ,f t\I ~L~S f MONROE COUNTY ATTORNEY A~:rv: ASSISTANT COUNTY ATTORNEY Date to ~ ;"0 - ~DI 19 Monroe County-WHI REDR2 09032008 (brs).rtf EXHIBIT A SCOPE OF SERVICES 1. Services. CONTRACTOR will provide the prescript/on benefit management services described in this Agreement and/or as otherwise mutually agreed to by the parties in Writing, including, but not necessarily limited to, general support and consultative services regarding pharmacy benefit design and implementation, formulary management, administrative and claims processing services, standard reporting packages, marketing, quality management and utilization management functions. In addition, CONTRACTOR may develop and implement certain additional clinical intervention programs that may be desired by COUNTY, subject to tenns and conditions to be agreed in writing between the parties. Notwithstanding the foregoing or any termination rights set forth in this Agreement, CONTRACTOR may immediately terminate or refrain from implementing any formulary management or other clinical program services in any geographic area (in their entirety or for specific drugs only) if, in CONTRACTOR's sole determination, the implementation or continued provision of such services is or may be in violation of applicable laws, rules, or regulations governing the practice of pharmacy or prescription benefits management, or may otherwise present an issue related to the practice of pharmacy or prescriptions benefits management. 2. Introductory Material~. CONTRACTOR will provide its standard CONTRACTOR identification card and introductory materials for issuance to Members. Upon COUNTY's request and mutual written consent of the parties, CONTRACTOR will provide customized identification cards and/or introductory materials for a mutually agreeable fee, prior to providing such cards and/or materials. 3. Disoensino Services. CONTRACTOR will provide to each Participating Pharmacy or the Participating Mail Service Pharmacy via the Online Adjudication System at the time of dispensing all information necessary (as specified in Section 2.5) for such Participating Pharmacy or for the Participating Mail Service Pharmacy to provide prescription services to Mernbers upon the following terms and conditions: (a) Upon presentation by a Member or his/her agent of the identification card, receipt of appropriate prescriptions, and any required copayment, the Participating Pharmacy or Participating Mail Service Pharmacy will compound and dispense all qualified prescriptions and covered drugs pursuant to the pharmacy benefit information provided by COUNTY to CONTRACTOR and communicated by CONTRACTOR to such Participating Pharmacy or Participating Mail Service Pharmacy via the Online Adjudication System at the time of dispensing, subject to legal restrictions and profeSSional ethics and profeSSional judgment. (b) The Participating Pharmacy will collect any applicable copayment or deductible amount from each Member for each covered prescription, as indicated by the Online Adjudication Systern at the time of dispensing, except when the Participating Pharmacy's usual retail charge for the prescription is less than the copayment. In these cases, the Participating Pharmacy will collect the usual retail charge in lieu of the copayment. In the case of mail order prescription services, each Member must transmit with the order to the Participating Mail Service Pharmacy the applicable copayment fee for each prescription or refill covered by this Agreement. (c) The Participating Pharmacy and/or Participating Mail Service Pharmacy may withhold prescription services to a Member for good cause, including, but not necessarily limited to, COUNTY's nonpayment of prescription services provided to Members; the Member's failure to pay for services rendered (e.g., copayment); requests by Member for quantities of drugs in excess of prescribed amounts or refill limitations pursuant to the Monme C<lllntv.WHr R:? OQ04200R Ihrs) f1f .:'u pharmacy benefit information; or where, in the professional judgment of the dispensing pharmacist, the prescription should not be filled. (d) The Participating Pharmacy and/or Participating Mail Service Pharmacy will attempt to dispense generic drugs in lieu of prescribed brand name drugs if commercially available and consistent with the dispensing pharmacist's professional judgment and state and federal law. (e) Mail order prescriptions will be sent to Members from the Participating Mail Service Pharmacy via United Parcel Service, United States Postal Service, or any other method the Participating Mail Service Pharmacy may select. Risk of loss or damage to covered drugs provided hereunder is on the Participating Mail Service Pharmacy until such prescription drugs have been delivered to Member. The cost of shipping will be borne by the Participating Mail Service Pharmacy, except for the following costs: (i) COUNTY will pay for any increased Shipping costs OCcurring after the effective date of this Agreement as a result of rate increases by the United States Postal Service or private mail package handlers; and (ii) Members will pay, or reimburse Participating Mail Service Pharmacy, as applicable, for all additional expenses due to expedited delivery requested by Member. 4. Member Materials. CONTRACTOR is responsible for reasonable costs associated with its development and printing of standard marketing materials that CONTRACTOR agrees to provide to COUNTY in connection with this Agreement; provided, however, that all costs associated with the distribution of such materials to Members are the sole responsibility of COUNTY. 5. Network Chanoes/Audits. (a) CONTRACTOR may add or terminate Participating Pharmacies to or from its network in CONTRACTOR's sole discretion. (b) CONTRACTOR. in its sole discretion, may audit Participating Pharmacies for compliance with their contracts with CONTRACTOR. Selection of Participating Pharmacies for this type of audit and the method of audit will be determined solely by CONTRACTOR. At CONTRACTOR's sole discretion, CONTRACTOR may perform the audit or select an outside firm to perform the audit on CONTRACTOR's behalf. Any identified overpayments made to a Participating Pharmacy attributable to COUNTY's claims will be offset against future COUNTY invoice payments; if offset is not available, then COUNTY's portion of any overpayment recovered from the Participating Pharmacy will be remitted to COUNTY. CONTRACTOR may retain 20% of all recovered overpayments detected during an audit, except to the extent the overpayments result from CONTRACTOR's negligence. \1"l1r",- c'''Jl1ly-WHI R21)1i1)4211()x n1l';).r1" 21 EXHIBIT B PAYMENT SCHEDULE I. RATES FOR SERVICES. The rates set forth in this Article I apply for dispensing and administrative services provided hereunder. Relevant definitions are listed In Article III, below. A. RATES FOR CLAIMS BY PARTICIPATING PHARMACIES FOR 1-30 DAYS' SUPPl Y: For each retail pharmacy preSCription or refill covered by this Agreement for 1-30 days' supply, COUNTY will pay CONTRACTOR at the rates set forth in this Section I.A., reduced by the applicable copayment fee received: 1. Brand Name Drugs: the lower of (a) AWP - 15% plus a dispensing fee of $1.95; or (b) the dispensing Participating Pharmacy's usual retail charge. 2. Generic Drugs: the lowest of (a) AWP - 15.25% plus a dispensing fee of $1.95; (b) as applicable, the MAC plus a dispensing fee of $1.95; or (c) the dispensing Participating Pharmacy's usual retail charge. 3. Notwithstanding the rates set forth in Paragraphs 1 and 2 of this Section I.A., and for plans requiring Member copayments only, if the total of the discounted AWP or MAC, when applicable, plus the dispensing fee is less than the Member copayment fee, Participating Pharmacy will receive, at a minimum, the lower of the Member copayment fee or the dispensing Participating Pharmacy's usual retail charge. B. RATES FOR CLAIMS BY ADVANTAGE90@ PARTICIPATING PHARMACIES FOR 84 OR GREATER DAYS' SUPPLY: For each retail pharmacy prescription or refill covered by this Agreement and dispensed at an Advantage90@ Participating Pharmacy for 84 or greater days' supply, COUNTY will pay CONTRACTOR at the rates set forth in this Section LB., reduced by the applicable copayment fee received: 1. Brand Name Drugs: the lower of (a) AWP - 19% plus a dispensing fee of $0.75; or (b) the dispensing Participating Pharmacy's usual retail charge. 2. Generic Drugs: the lowest of (a) AWP - 50% plus a dispenSing fee of $0.75; (b) as applicable, the MAC plus a dispensing fee of $0.75; or (c) the dispensing Participating Pharmacy's usual retail charge. 3. Notwithstanding the rates set forth in Paragraphs 1 and 2 of this Section LB. ("Advantage90~ Rates"), and for plans requiring Member copayments only, if the Advantage90'i') Rate is less than the Member copayment fee, Participating Pharmacy will receive as reimbursement, at a minimum, the lower of the Member copayment fee or the dispensing Participating Pharmacy's usual retail charge. Notwithstanding the foregoing, however, the Advantage90,ij) Rates are subject to a minimum reimbursement to each Participating Pharmacy of $14.99 for each prescription dispensed. This minimum reimbursement amount will be satisfied from the Member copayment, unless such copayment is less than $14.99, in which case COUNTY will be billed and will pay the difference between the copayment and $14.99. C. RATES FOR CLAIMS BY PARTICIPATING MAIL SERVICE PHARMACY: Foreach mail service pharmacy prescription or refill covered by this Agreement, COUNTY will ,\f<>nro,:C"tJlllv-WIIl R211'il).L~I)I),~ lI>h) /11' 22 pay CONTRACTOR at the rates set forth in this Section I.C., reduced by the applicable copayment fee received: 1. Brand Name Drugs: AWP - 22% plus a dispensing fee of $0.00. 2. Generic Drugs: AWP - 55% plus a dispensing fee of $0.00. 3. Notwithstanding the rates set forth in Paragraphs 1 and 2 of this Section I.C., and for plans requiring Member copayments only, if the total of the discounted AWP plus the dispensing fee is less than the Member copayment fee, Participating Mail Service Pharmacy will receive, at a minimum, the required Member copayment fee. D. ADMINISTRATIVE AND ANCILLARY FEES. 1. ANCILLARY FEES. If requested by COUNTY, CONTRACTOR will provide the following additional services in the table below at the fees indicated, provided that such fees are subject to change at any time after the Initial Term: SERVICE BILLABLE AMOUNT Reports Ad Hoc per report $100 per hour, $500.00 minimum Customized reports $100 per hour, $500.00 minimum WHI generated queries $100 per hour, $500.00 minimum Litigation Summaries $250 per report 10 Cards 10 cards (2 cards) with letter carriers with WHI formulary $1.30 each Re-Issuance: 10 Card and other member materials 10 cards (2 cards) with replacement letter carrier $0.80 each Postage & handling . Per member: USPS mail (initial and maintenance) $1.10 each Claim management Manually submitted paper claims (includes electronically $2.00 each or manually submitted subrogated and direct member reimbursement claims), per submitted claim Prior Authorizations, per authorization $1.00 each Manual Eligibili!y Updates,per update $0.75 each Claim Invoice Detail Report Options Customer Billing Transmission (CBT) - unless via FTP $125.00 per transmission Paper Claims Invoice Detail Report $0.00 Member communication Customized letters to members, includes postage $1.50 each HIPAA related correspondence, per request, per member, $1.50 each includes postage Annual Summary of Benefits setup fee (at initial startup of $250.00 each requested ASB) . Annual Summary of Benefits, per letter, includes $1.50 each postage . Annual Summary of Benefits, bulk ship to one address $0.85 per letter J:xpla'2.9~on of Benefits (EGB) compilinq, summary, and $1 50 each \f"n,."<:(',,Llflll,.\\'ilJ r~.' IJ')I~I~I)lJ.~ Ih", 11( 23 pOstage On-line Access . Management Reports- per user 10 per month (one 10 $50.00 per 10 per month at no charge) . PBS access- per user 10 per month (one 10 at no $50.00 per 10 per month charge for client of 500-5,000 lives, two IDs at no charge for client >5,000 lives) . Query tool- standard query tool. per user 10 per month $50.00 per 10 per month . (one 10 at no charge) . 2nd set of Management Reports (paper copy). This $100/month $100.00 fee also applies it a Plan wants online report access AND paper copies. Account Management Activities (non-pharmacist) Health fair- one CONTRACTOR staff member for $0.00 (no charge) COUNTY >5,000 lives (2 free days) Health fair- per additional CONTRACTOR staff member $500 + travel expenses and/or added day of attendance for COUNTY >5,000 lives Open enrollment meeting- one CONTRACTOR staff $0.00 (no charge) member for COUNTY >5,000 lives (2 free days) Open enrollment meeting- per additional CONTRACTOR $500 + travel expenses staff member and/or added day of attendance for COUNTY >5,000 lives Less than 5,000 lite groups, health fairs or open $500 + travel expenses enrollment meetings (one CONTRACTOR staff member, two free days do not apply) Clinical Programs Medication Management See Article VII Any other additional services may incur additional charges. CONTRACTOR is not required to supply any additional reports or information unless and until it has been agreed to in writing by both parties. E. PAYMENTS TO PHARMACIES. COUNTY acknowledges that CONTRACTOR has contracts with Participating Pharmacies and Participating Mail Service Pharmacy for the provision of, and payment for, prescription drug services provided to Members pursuant to this Agreement at agreed upon reimbursement rates. COUNTY further acknowledges that in certain circurnstances there may be a differential between payments made to such pharmacies for prescription drug services provided to Members and the payments received by CONTRACTOR from the applicable client based upon negotiated pharmacy reimbursement rates. F. PRICING METHODOLOGY. If the pricing methodology used by CONTRACTOR or any of its vendors, including its AWP pricing source vendor, changes in a manner that is reasonably likely to cause a material adverse financial effect on either party, the affected party(ies) will request, and both parties will engage in, good faith renegotiations of the financial terms of this Agreement toward the goal of restoring the parties' relative economic positions prior to the changed pricing methodology. If such negotiations do not yield a binding agreement between the parties within 90 days of initiation thereof, CONTRACTOR may, upon notice to COUNTY, unilaterally establish revised pricing terms reasonably calculated to meet the above stated objective, and such revised terms will be binding upon both parties. II. SPECIALTY PHARMACY DRUGS. COUNTY acknowledges that certain drugs available on the market will not be subject to the rates set forth in Article I, above, due to reasons such as, but not limited to, nonstandard administration, necessity for case management, ..:-l Monroe C"ulllv.WHI Ie 1J'1<)42I)O~ (hr,) Ill' limited availability, unique shipping or handling requirements, and specialized manufacturer process and/or purchase arrangements. Such drugs are referred to herein as "Specialty Pharmacy Drugs. W Examples of Specialty Pharmacy Drugs include biotechnology drugs and certain compounds. The rates for the dispensing of any Specialty Pharmacy Drugs will be as set forth below in this Article II, assuming no more than a 30- day supply, or as otherwise agreed in Writing between the parties. COUNTY further acknowledges that the dispensing of Specialty Pharmacy Drugs may be limited to the Participating Mail Service Pharmacy, other subcontracted mail service provider, or certain Participating Pharmacies only. To the extent CONTRACTOR is required to enter into a unique arrangement with a pharmacy for the dispensing of certain Specialty Pharmacy Drugs due to reasons such as, but not necessarily limited to, limited distribution or days' supply availability, COUNTY will pay CONTRACTOR at the then current rates at which CONTRACTOR pays the dispensing pharmacy. For all Specialty Pharmacy Drugs, COUNTY will pay CONTRACTOR at the following rates, reduced by the applicable copayment fee received: A. Retail: the rates set forth in Section I.A., above. B. Mail: the rates set forth in Section I.A., above, provided that there is no "usual retail charge" comparison at mail. Notwithstanding the foregoing, if the rate set forth in this Article II is less than the Member copayment fee, CONTRACTOR will receive as reimbursement, at a minimum, the lower of the Member copayment fee or the dispensing pharmacy's usual retail charge. III. DEFINITIONS: As used in this Agreement, "Average Wholesale Price" or "AWP" means the price defined and distributed by a nationally recognized AWP pricing source, selected by CONTRACTOR in CONTRACTOR's sole discretion, for each drug in the database. This price is based on the 11-digit NDC number (or such other industry-standard identifier as rnay be communicated by CONTRACTOR to COUNTY) submitted for the dispensed medication. Such AWPs will be updated in the claims processing system within one week of CONTRACTOR's receipt from its pricing Source. As used in this Agreement, "Maximum Allowable Cost List" or "MAC List" rneans CONTRACTOR's proprietary list of generic drugs and their associated prices at which COUNTY will pay CONTRACTOR for dispensing services provided by Participating Pharmacies and the Participating Mail Service Pharmacy hereunder. The MAC List is subject to periOdic review and modification by CONTRACTOR. IV. MULTI-SOURCE PRODUCTS. The dispensing Participating Pharmacy and the Participating Mail Service Pharmacy will dispense multi-source products using the inventory customarily maintained; the terms of reimbursement and the dispensing by the Participating Pharmacy or the Participating Mail Service Pharmacy of such multi-source products may not be restricted by formulary or any list of covered drugs which identifies multi-source drugs by the manufacturer. V. TAXES. To the extent permitted by law, or if the COUNTY cannot demonstrate its exemption from applicable taxes, COUNTY is solely responsible for payment of any wholesale distributor tax or any other excise or value added tax or governmentally instituted imposition however styled if based upon purchases at wholesale or prescriptions dispensed associated with the Provision or prescription services by Participating Pharmacy or Participating Mail Service Pharmacy in connection with this Agreement. COUNTY also will reimburse Participating Pharmacy or Participating Mail Service Pharmacy any applicable federal, state or local sales tax liability or liability for governmental impositions based upon the sales of prescriptions dispensed or goods and services provided by 25 \f,)flr,)l' ('dllllly.I,VHI R2 1)')1)42()f)X IOn,) 111' Participating Pharmacy or Participating Mail Service Pharmacy to COUNTY or Members. For the purposes of this Agreement the term "tax" includes any sales tax, imposition, assessment, excise tax or other government levied amount based on Participating Pharmacy or Participating Mail Service Pharmacy's retail sales of prescriptions to Members either on gross revenues or by transaction, whether such tax is designated a sales tax, gross receipts tax, retail occupation tax, value added tax, health care provider tax, transaction priVilege tax, assessment, pharmacy user fee, or charge otherwise titled or styled. It includes any tax in existence or hereafter created whether or not the bearer of the tax is the retailer or consumer. VI. REBATES. A. PA YMENT AMOUNT. In connection with and subject to the terms and conditions of Section 2.7 of the main body of the Agreement regarding Rebates, CONTRACTOR will make payments to COUNTY on a per net paid claim basis ("CONTRACTOR Payments") based on the services provided under this Agreement, regardless of the amount of Rebates received by CONTRACTOR. CONTRACTOR will make such CONTRACTOR Payments in the amount of $2.30 per net paid retail claim, $5.00 per net paid Advantage 90 clairn, and $6.00 per net paid mail claim, according to the payment terms set forth below. B. PA YMENT TERMS. CONTRACTOR Payments will be made approximately nine months after the end of the calendar quarter (or portion thereof, when applicable) in which Rebates accrued hereunder. CONTRACTOR Payments will be made via check or other mutually agreeable method. VII. MEDICATION MANAGEMENT PROGRAM A. COUNTY desires that CONTRACTOR provide a medication management program that is consistent with the prior authorization requirements under the benefit design COUNTY currently offers to Members ("Medication Management Prograrn"). The Medication Management Program is designed to promote appropriate utilization of potentially expensive, misprescribed and/or abused medications based upon generally accepted current pharmacy practices. Accordingly, pursuant to COUNTY's direction, commencing October 1, 2008, and continuing for a mutually agreeable tirne period, CONTRACTOR will implement the Medication Management Program on COUNTY's behalf and in accordance with the protocols, criteria, forms, and related documents approved by COUNTY ("Approved Protocols"). The Approved Protocols are hereby incorporated into this Agreement. B. Upon presentation by a Member of a prescription that requires prior authorization pursuant to the Medication Management Program, CONTRACTOR will attempt (at least two times within a 16 business hour period) to have the Member's prescriber respond to questions specific to the prescription presented ("Physician Form"). Completed Physician Forms will be reviewed by CONTRACTOR's pharmacist and compared to the Approved Protocols for the applicable medication category. Based Upon the results, COUNTY hereby directs CONTRACTOR's pharmaCists either to authorize or deny the dispensing of the medication and CONTRACTOR will notify the Member accordingly. CONTRACTOR will charge COUNTY $40.00 for each claim reviewed under the Medication Management Program. A Medication Management Program review will be deemed to have Occurred whenever CONTRACTOR has attempted (at least two times within a 16 business hour period) to have the Mernber's prescriber complete the applicable Physician Form. If after two attempts CONTRACTOR is unable to obtain a completed Physician Form from the Member's prescriber, COUNTY directs CONTRACTOR's pharmaCists to deny the dispensing of ,"'''Ill!}e c"lJlllv-\VIIII{2 1)')'Jl21)'I,~ 'h,,) nl 26 the medication and to notify the Member accordingly. C. CONTRACTOR or CONTRACTOR's designee will bill COUNTY rnonthly for the Medication Management Program and COUNTY will pay CONTRACTOR following CONTRACTOR's issuance of each Invoice in accordance with the Florida Local Government Prompt Payment Act. D. It is expressly understood that COUNTY is solely responsible for construing the terms and conditions of its health benefit plan and the selection of medications that are part of the Medication Management Program. Further, COUNTY retains complete discretionary and final authority to make all determinations regarding its health benefit plan and prior authorization requests that are part of the Medication Management Program, including, without limitation: (i) payment of claims; (ii) Provision of benefits; (iii) review and/or denial of prior authorization claims or requesls by Members; and (Iv) resolution of Mernber cornplalnts, including the establishment of an appeal and/or grievance process. COUNTY will comply with all Federal and State laws, rules, and regulations regarding the denial of benefits. \lnnnH" ("HHlI) .11 fill,.:' ()'i()-l2iJ!JX In",) 111' n