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Agenda 07/07/2015 Item #16E17/7/2015 16.E.1. EXECUTIVE SUMMARY Recommendation to award a contract for Affordable Care Act Data Reporting Services to Health Eft) and authorize the Chairman to sign the County Attorney approved agreement. OBJECTIVE: To assure compliance with the data reporting requirements of the Affordable Care Act (ACA) by selecting a qualified vendor to perform data reporting. CONSIDERATIONS: The Board of Commissioners through the Risk Management Division administers a Group Health Insurance program for the County Manager's agency and participating Constitutional Officers. The Patient Protection and Affordable Care Act (PPACA), commonly called the Affordable Care Act (ACA) is a federal statute signed into law on March 23, 2010. The County is subject to the compliance provisions of the ACA, including the data reporting requirements to the Internal Revenue Service (IRS) that are due in the first quarter of 2016 for calendar year 2015. These data reporting requirements include the reporting of all employees; wage information; leave information used by type; hours worked; whether health insurance coverage was offered; and the names of covered dependents. This information is reported by month for the year 2015.The purpose of this data collection is to determine the compliance of the employer with the pay or play provisions of the ACA. The failure to offer coverage to eligible employees may result in a fine to the County which could be as high as $3,200,000. The IRS will utilize this data to determine if the employer is in compliance and to determine if the individual mandate has been met by members. The existing SAP system cannot accommodate these reporting requirements. Staff from Risk Management, Human Resources, Information Technology, Finance and Payroll met to discuss the new requirements, determine staff roles in the compliance process, and ascertain whether or not this could be handled in- house. It was agreed by all parties to seek an outside vendor for this service. Therefore, the Risk Management Staff, with the assistance of the County's Benefits Broker and Actuarial consultant, Willis, Inc., sought and received three quotes from qualified vendors. The proposed pricing by vendor is as follows: Vendor Estimated Cost Health E fx $26,443 Hodges Mace Gatekeeper 32,170 Equifax 32,400 Based upon the proposed pricing and the capabilities of each firm as demonstrated in separate presentations, Willis, Inc. recommends that the County select Health E(fx) for approval by the Board. Staff concurs with this recommendation. Staff recommends a three year agreement with the option to renew for additional 12 month periods and requests authorization for the advanced payment of the implementation fee of $9,200 per Fla.Stat.28.235. Commencement of the project shall begin upon approval of the award and execution of the agreement. Packet Page -1863- 7/7/2015 16.E.1. FISCAL IMPACT: The County Manager's agency was the lead employer on the proposal process and subsequently was joined by the Clerk of Courts, the District Schools, and the Collier County Sheriff's Office. The vendor has agreed to permit these agencies to utilize this proposal to meet their reporting requirement as well. The estimated cost for the County Manager's Agency to complete the reporting requirement is $26,443 for the 2015 reporting year. This figure includes a $9,200 implementation fee that must be paid upon commencement of the project. The total estimated first year expenditure by all participating county government agencies is estimated to be $74,222. With the addition of the School District, total annual first year expenditures are estimated to be $112,528. GROWTH MANAGEMENT IMPACT: There is no growth management impact associated with this item. LEGAL CONSIDERATIONS: This item is approved as to form and legality, and requires majority vote for Board approval. —SRT RECOMMENDATION: That the Board approves the selection of Health E(fx) to perform Affordable Care Act reporting services; authorizes payment of the $9,200 up front implementation fee; authorizes the Chairman to sign the attached agreement reviewed by the County Attorney's staff; and approves the use of this contract by other agencies including the Clerk of Courts, Sheriffs Office, and the School District. PREPARED BY: Jeff Walker, CPCU, ARM, Division Director, Risk Management Attachments: Quote Tabulation Agreement Packet Page -1864- 7/7/2015 16.E.1. COLLIER COUNTY Board of County Commissioners Item Number: 16.16.E.16.E.1. Item Summary: Recommendation to award a contract for Affordable Care Act Data Reporting Services to Health E(fx) and authorize the Chairman to sign the County Attorney approved agreement. Meeting Date: 7/7/2015 Prepared By Name: WalkerJeff Title: Division Director - Risk Management, Administrative Services Department 5/28/2015 8:53:26 AM Submitted by Title: Division Director - Risk Management, Administrative Services Department Name: WalkerJeff 5/28/2015 8:53:28 AM Approved By Name: MarkiewiczJoanne Title: Division Director - Purchasing & Gen Svc, Administrative Services Department Date: 6/4/2015 7:44:09 PM Name: HerreraSandra Title: Manager - Procurement, Administrative Services Department Date: 6/5/2015 7:47:22 AM Name: PriceLen Title: Department Head - Administrative Svc, Administrative Services Department Date: 6/5/2015 2:23:47 PM Name: PriceLen Title: Department Head - Administrative Svc, Administrative Services Department Date: 6/8/2015 10:52:33 AM Packet Page -1865- Name: TeachScott 7/7/2015 16. E.1. Title: Deputy County Attorney, County Attorney Date: 6/8/2015 11:34:37 AM Name: KlatzkowJeff Title: County Attorney, Date: 6/8/2015 3:40:39 PM Name: IsacksonMark Title: Division Director - Corp Fin & Mgmt Svc, Office of Management & Budget Date: 6/19/2015 9:27:16 AM Name: CasalanguidaNick Title: Deputy County Manager, County Managers Office Date: 6/21/2015 10:46:52 AM Packet Page -1866- 7/7/2015 16. E.1. Cu Cu O O O 0 O CD O O Y 7� L 9 Co O O O NO O N CD 1° v 6l N +- Co M LO N O CO O Lf) M O y M., r.. a w C w .L.. 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Control. SOFTWARE AND SERVICE AGREEMENT ( "Master Agreement's This Agreement is made on the day of 2015 (the "E Date ") by and between HealthCare Impact Associates, LLC ( "HIA'), a Minnesota limited company with primary office at 6121 Baker Road, Suite 104, Minneapolis, MN 5534 Collier County, a political subdivision of the State of Florida ( "Employer" or "the Count) an office at 3299 Tamiami Trail E., Suite 303, Naples, Florida 34112. WHEREAS, HIA is the developer and exclusive owner of an Affordable C management information system known as Health E(fx)ql) (which, together accompanying documentation and other materials, shall be referred to hereafter "Software" or "Service "); and WHEREAS, as further described on the proposal provided to Employer, dated AE 2015 and attached hereto as Exhibit A (the "Proposal ") the Software: (1) aggregate analyzes raw employer data received from Employer source systems, including payroll, time and attendance and benefits administration; (2) complies with applicable regulations Affordable Care Act as of the date of its implementation, and is designed to ml compliance to subsequent regulation changes as introduced; (3) measures, reports, and on employee medical benefits eligibility and plan affordability compliance under the Affo Care Act; (4) provides employer management reporting, compliance reporting, and eml notifications and federal reporting; and (5) enables complex data modeling and analytics the analytics module is purchased) to assess and evaluate risk, cost, and strategies rely an employer's medical benefits program; and and with Act its the 15, and RIS, the Main erts able yee hen J to WHEREAS, Employer wishes to license and use the Software and HIA services fdr the price and on the terms set forth herein; NOW, THEREFORE, in consideration of the mutual covenants and premises herein contained, the parties hereto agree to the terms and conditions of this Agreement (also 4alled "Master Agreement"). I. Term and Termination. This Agreement shall become effective upon the date the BoOrd of County Commissioners approves ( "Effective Day ") and shall be for thirty -six (36) m nths beginning on the Effective. Date, at the end of which time it may be renewed for additional twelve (12) month periods until terminated by (1) mutual agreement of the parties, (4) the Employer upon ninety (90) days' notice to HIA, or (3) as otherwise provided herei . All services and products provided prior to termination shall be paid for in full, upon receip� of a proper invoice and upon approval by the Risk Management Director, or his designee, . d in compliance with Chapter 218, Fla. Stats., otherwise known as the "Local Goverent Prompt Payment Act". Provisions of this Agreement which by their terms are inten td to survive the termination of this Agreement, including but not limited to Sections 5, 6, 7, 9, shall survive termination of this Agreement. 1 SSA SUBSCRIPTION (041515) Packet Page -1868- 1 7/7/2015 16.E.1. 2. Services: License. Subject to "018 tee ins of this Agreement and in exchange for tt4 fees below, HIA will provide to Employer the services described on the Proposal and puroased by Employer, including the grant of a non - exclusive non transferable, license to uae the Software as set forth more particularly in the End User Software License and Warranty Agreement ( "EULA "), which is attached hereto as Aooendix A and incorporated by reference herein. 3. Fees: Employer shall pay fees as follows: a. Implementation Fee. The .Implementation Fee is a one -time non - refundable fee securing the implementation schedule and include set -up, System configuration, data file(s) integration and testing, hosting and deploymerdj, and standard training. b. Software and Service Fees. In addition to the Implementation Fee, Employer shall pay an annual Software and Service Fee for the Health Eft) Compiance Module. Employer will be provided access to and use of the Health (fx)a Analytics Module fora period of three (3) months (the "Trial Period") fro the "Go-Live' date free of charge, at which time additional fees for continued use will apply (as shown in the Applicable Software and Service Fees table blow). Employer has the right to cancel access and use of Analytics Module Jupon written notice up to ten (10) days in advance of the end of the Trial Period. All fees associated with the Annual Software and Service Fees are in effectlfor a period of three (3) years from Agreement date, subject to an annul 4% adjustment at the start of years two and three. "Go-Live" shall begin wh* the Employer's system is moved to production subsequent to Emp le' documented acceptance sign -off, which sign -off shall not be unrea ably withheld. Support and maintenance Services shall be governed by the S port and Service Level Agreement, which is attached hereto as Append and incorporated by reference. C. Applicable Software and Service Fees: Implementation Fee $9,200 Compliance Module $11,000 annually Optional Analytics Module Three months free use; $3,500 annually i 1094 -C Generation and Fling 1095 -C Generation $3,500 2 SSA SUBSCRIPTION (041515) Packet Page -1869- 7/7/2015 16.E Additional Services *Managed Services PEPM $1.25 One Time Set Up Fee - $1,150 Standard Print and Mail Per Form - $0.92 1095 Forms Fulfillment Combined Print and Electronic Portal Per Form - $1.30 Annual Portal License Fee $1,725 Unlimited User Seats included d. Basis For Fees. Fees are based on implementation of standard Software functio Inality and include implementation of current month and historical data ting, and validation of the data feed from Employer source systems Id fled in the proposal data form provided by Employer ('Data Form's ap nded to this Agreement as Appendix C, and using secure data aogt �sition processes integral and proprietary to the Software. Implemenjtation requires timely tendering of required source data to malintain implementation schedule. Historical data load is included provided historical data is provided too HIA in the agreed data specification (°Implemented Data Files ") estabiIished between Employer and HIA during implementation. III. A one -time historical data load is included in the Implementation ee. If additional support is required and/or historical data must be r aded due to errors or changes caused by Employer, additional fees may apply and are subject to a written scope change document, upon prior approval by the Employer. IV. Additional consulting resulting from additional requests not inclu licensing or which are not identified in the Employer Data (Appendix C), or changes that are made to Employer's data subsequent to Go-Uve, shall be invoiced at $235 for compliant client services, and $175 per hour for technical services. Such coi in addition to the fees set forth in sections 3a, 3b and 3c above a be documented as a scope change for Employer's approval befon is undertaken. 3 SSA SUBSCRIPTION (041515) Packet Page -1870- ed in Forth and ;s are d will work 1.i 7/7/2015 16.E.1. e. Invoicing. Payment will be made upon receipt of a proper invoice approval by the Risk Management Director, or his designee, and in a with Chapter 218, Fla. State., otherwise known as the `Local Gc Prompt Payment Act`. The implementation Fee is due upon exemA Agreement The Annual Subscription Software and Service Fees irnroiced after Go -Live acceptance. Travel Costs. Requested travel, if any, shall be requested in adwni approval by the Risk Management DirsCtOr is required. Requested try incur costs in addition to the implementation Fee and S0ftWM and Fees. Travel expenses will include all travel time that is in addition to time, and shall be reimbursed as per Section 112.061 Fla. Slats. Reimbursements shall be at the following rates: Mileage $0.445 per mile Breakfast $6.00 Lunch $11.00 Dinner $19.00 Airfare Actual ticket cost limited to tourist or mach class fare Rental car Actual rental cost limited to compact or standard -sire vehicles Lodging Actual cost of lodging at single occupancy rate with a cap of no more than $150.00 per night Parking Actual cost of parking Taxi or Airport Limousine Actual cost of either taxi or airport limousine .. of this all be and will training g. Print and Fullfiihnsnt Sewia*f . Managed P" and electronic Iment is available at Employer's request Print and mail ftMl1rr ant services are not included in fees above and shall be invoiced in addition to the other foes in this Section 3. The Software is integrated with industry - leading third party] tax form vendors. An addendum will be executed should managed print and electronic services be requested. i 4. Interest choress. In addition to the default remedies available at law anti in this Agreement, any past due amounts will accrue monthly interest in ao=dance to Fla. Stat. §218.74 and payable upon receipt of a proper invoice and upon approval by the Risk 4 WA susscft P'noN (041515) Packet Page -1871- [7 7/7/2015 16.E. Management Director, or his designee, and in compliance with Chapter 218, Fla. otherwise known as the "Local Government Prompt Payment Act'. s. Confidentiality. HIA and Employer agree that each party may have access to, or b acquainted with confidential information about the other, including customer informati methods and means of the operation of the business. Each party shall keep said conf information ( "Confidential Information') of the other party in oonfidenoe and shall n copy, reveal, report, publish, disclose, transfer or otherwise make it available, dire indirectly, without the prior written consent of the other party. The parties agree employee information provided by Employer to HIA hereunder, including through its the Software is "Confidential Information' and that all aspects of the Software (includ not limited to its functionality and design) and documentation related thereto, are I deemed Confidential Information. Each party agrees to: (a) maintain the confidentiali Confidential Information using at least the degree of care and security as it uses to n the confidentiality of its own Confidential Information, and in no event less than a real degree of care, and (b) not use the other's Confidential Information except in accx with this Agreement. In the event that HIA wishes to disclose Employer's Coni Information to one of its agents or subcontractors (including service providers), it ma only if that agent or service provider has a need to know such Confidential Inform order for HIA to perform its obligations under this Agreement, and the agent, subcor or service provider acknowledges that the Confidential Information is subject to pr hereunder. Information shall not be considered confidential under this Section tha publicly known prior to or after disclosure hereunder other than through acts or on attributable to the recipient or its employees or representatives; (ii) as demonstrated written records, is already known to the recipient at the time of disclosure hereunde disclosed in good faith to the recipient by a third party having a lawful right to do & the subject of written consent of the party which supplied such information aut disclosure; or (v) is required to be disclosed by law; provided that the recipient shall disclosing party reasonable notice in writing prior to disclosing such information in facilitate seeking a protective order or other appropriate remedy from the proper a Notwithstanding the foregoing, If the parties have previously executed an ag concerning confidentiality and non - disclosure, and any of those terms directly corn the terms in this Section 5, the most restrictive and protective term will prevail. 11- have the right to communicate Employer use of the Software. G. Data Security. As noted in the EULA, which is attached as Aooendix A to this Agra HIA has implemented and maintains an information security program that incorl administrative, technical, and physical safeguards designed to ensure the a confidentiality, and integrity of Personal Information (as defined below) in complian applicable laws, including without limitation the requirements contained Massachusetts Code of Regulations, 201 CMR Sections 17.00 et. seq. For purposes Agreement, the term "Personal Information" shall mean 1) information that is not available to the public 2) in any medium provided by Employer to HIA, or colle processed by HIA on Employer's behalf, 3) that identifies or could reasonably be identify any natural person, including without limitation a person's first and last name initial and last name, in combination with one or more of the following: social number or other third -party issued identifier such as a state identification number, license number or passport number, and financial information, including credit card account information. 5 SSA SUBSCRIPTION (041515) Packet Page -1872- i and 3ritial use, tly or at all se of gbut ;wise of all intain nably lance ential do so ion in actor, ection (i) is isions prior (iii) is (iv) is rrizing we the der to hority. ement :t with 1 shall oe with n the .of this ,tea or sed to or first bank 1. 7/7/2015 16.E.1. 7. HIPAA Compliance. HIA agrees to comply with all applicable Iaz:s relating to the ptivacy, transmission and security of individually identifiable, personal data, including IndMdually identifiable health care information and, to execute a Business Associate Ag*ment attached hereto as Exhibit "B.' e. Ownership of Data. All right, title and interest in the data used and/or subml�ed by Employer in. connection with the Software ('Data') is owned by Employer and may of be used, disclosed, transferred, assigned, sold or published by HIA without Employer' prior, express, written permission. HIA will not publish or sell Data or Personal Information or employee- specific information or otherwise use any Data or Personal Information for any purpose other than as strictly necessary to provide the Software and services to Empl�yer. 9. Indemnification. HIA shall indemnify and hold) harmless Collier including, tb off lim and ited employees from any and all liabilities, damages, to, reasonable attorneys' fees and paralegals' fees, to the extent caused by the int orally wrongful conduct of HIA or anyone employed by HIA in the performance of this Ag ment or damages resulting from any claim by any third party, including amounts incurred ach a to resolution or settlement agreements with government agencies (cumulatively, "Claim'), arising out of: (a) any material breach by HIA of Section 5 (Confiden lity) or Section 8 (Data Security), or (b) any determination that any of the Software or Se r" (or any portion thereof) infringes a third party's patents, or infringes or misappropriMtes, as applicable, such third party's copyrights, trademarks, trade secrets or other intollectual property or proprietary rights. This indemnification obligation shall not be construed to negate, abridge or reduce any other rights or remedies which otherwise may be avelabie to an indemnified party or person described in this paragraph. This section does not pertain to any incident arising from the sole negligence of Collier County. 9.1 The duty to defend under this Section 9 is independent and separate from thel duty to indemnify, and the duty to defend exists regardless of any ultimate liability of t(ie HIA, County and any indemnified party. The duty to defend arises immediat* upon presentation of a claim by any party and written notice of such claim being provided to HIA. HIA's obligation to indemnify and defend under this Section 9 will survive the expirjation or earlier termination of this Agreement until it is determined by final judgment that an action against the County or an indemnified party for the matter indemnified hereunder is uily and finally barred by the applicable statute of limitations. 10. Non - Solicitation of Emulovees. During the term of this Agreement and for one 1) year ereafter, each a agrees that it will not induce or attempt to influence any employee, th party 9 subcontractor, or agent of the other party to (1) terminate his/her or its relationshiplwith the other party, or (2) enter into any employment or other business relationship with any other person firm or entity. 11. Independent Contractor. HIA is at all times an independent contractor and nothing in this Agreement is intended, or construed, to create between Employer and HIA an agency, joint venture or partnership relationship. Except as specifically set forth herein, neither party may act on behalf of the other. 12. Insurance. At all times during the term of this Agreement, HIA will maintain i6suranee policies as set forth below, and will cause Employer to be named as an additionall insured. 6 SSA SUBSCRIPTION (041515) I Packet Page - 1873 - j 7/7/2015 16.E. Insurance shall be obtained from insurers authorized to transact the relevant type of insurance business in the state in which work is to be performed, and shall have an A.M. Best rating of no less than `A - ", and an A.M. Best Financial Size Category of at leant VII, with at least the following provisions, coverages and limits: t. Worker's Compensation Statutory limits in accordance with all applicable state and federal laws, applicable in t where work is to be performed: Employers Liability Each accident $ 500,000 Disease (policy limit) $ 500,000 Disease (each employee) $ 500,000 2. Commercial General Liability (including Contractual liability Insurance coverage based on the following minimum limits): General Aggregate $2,000,000 Products/Completed Operations Aggregate $2,000,000 Advertising Injury and Personal Injury Aggregate Limit $1,000,000 Each Occurrence $1,000,000 j Medical Expenses $ 10,000 3. Umbrella liability (which shall be excess and following form with respect to underlying coverage requirements and limits, with a minimum limit cot): Each Occurrence $3,000,000 Aggregate $3,000,000 4. Technology Errors & Omissions Liability. The definition of `professional services" under this policy shall cover the scope of work being performed under this j Agreement. The policy shall provide minimum limits of liaNity as follows: i Each claim $3,000,000 j Aggregate $3,000,000 13. IRS Reporting Only. If Employer has opted to use only the IRS reporting functions Of the Software, Employer shall bear any and all liability associated with the determin of eligibility, affordability, and the compliance data it provides to HiA that is used in fulfilli IRS reporting data requirements. When reporting only is chosen, HIA is unable to audit em toyer data, and therefore must depend on and assume the correctness and accuracy of em oyer provided and determined compliance information critical to the IRS reports, in ding eligibility and affordability of offer of coverage. 14. Default. Failure by either party to perform as agreed upon in this Agreement shall be a default. Prior to initiating any legal action or termination of this Agreement, thej non - defaulting party shall give written notice of the default to the other party. If the default is not cured within ten (10) days of delivery of the notice, the non - defaulting party may, tat its option, terminate this Agreemenrt, including Employer's rights under the EULA. In the ' vent of a failure to make payment when due, HIA may suspend and/or terminate sery ce to 7 I SSA SUBSCRIPTION (041515) Packet Page -1874- 1. 7/7/2015 16.E.1 Employer. Termination of this Agreement by HIA does not relieve Employer the obligation to make immediate payment of ail outstanding amounts owing to HI#1 by Employer. As set forth above, the County may terminate said agreement for cause. 15. Notices. Any notices given pursuant to this Agreement will be in writing, delivered t� the addresses set forth below (unless change by notice) and will be effective upon reo*t as documented via a return receipt or courier service. To Employer: Collier County 3311 Tamiami Trail E. Naples, FL 34112 Attn: Jeff Walker, Risk Management Director Telephone No: 239- 252 -8461 Facsimile No: 239 - 252 -8048 To HIA: Contract Management HealthCare Impact Associates, LLC Baker Technology Plaza 6121 Baker Road, Suite 104 Minnetonka, MN 55345 16. Modification of Agreement. Any modification of this Agreement shall be binding only if evidenced in writing, and signed by each party. 17. Invalids . Should any part of this Agreement for any reason be declared invalid, (such declaration shall not affect the remaining portions of this Agreement, which shall remiiin in full force and effect as if this Agreement had been executed without the invalid portion thereof. 18. Headings. The division of this Agreement into sections and subparagraphs and the insertion of headings are for the convenience of reference only and shall not affect the construction or interpretation of this Agreement. 19. Assignment. The Agreement may not be assigned by either party without the prior e4ess written consent of the other, such consent will not be unreasonably withheld. See App ndix A. i 20. Force Maieure. Neither party shall be liable or deemed in default for any delay or fai re in performance of any part of this Agreement to the extent that such delay or failure is ceased by the occurrence of any event beyond the reasonable control of such party, Ind ding without limitation, fire, flood, strikes and other industrial disturbances, accident, em rgo, act of the government, war, terrorism or national emergency requirement, act of God, ct of the public enemy, electrical, Internet, or telecommunication outage that is not caused the obligated party. 21. Governing Law. This Agreement shall be governed in all respects by the laws of F�rida without regard to its conflicts of laws rules. I, 22. Entire Agreement. This Agreement together with Exhibit A, Exhibit B and the Appendices hereto contains the entire agreement between the parties hereto and supersedes an f prior 8 SSA SUBSCRIPTION (041515) Packet Page -1875- 7/7/2015 16.E.1. i agreements, arrangements, negotiations and understandings between the parties �ereto relating to the subject matter hereof. 23. Counterparts. This Agreement may be executed in counterparts, delivered by facsimile transmission or as a .pdf attachment to an email. (Slanoture Pow to Follow) 9 SSA SUBSCRIPTION (041515) Packet Page -1876- I r 7/7/2015 16.E.1. IN WITNESS WHEREOF, the parties hereto, have each, respecvely, by an au.: horizad or agent, have executed this Agreement on the date and year first written above. ATTEST: Dwight E. Brock, Clerk of Courts By: Dated: (SEAL) First Witness TType/print witness name Second Witness TType/print witness names' Approved as to Form and Legality: Assistant County Attorney Print Name Attachments: Exhibit A - Proposal Exhibit B- Business Associate Agreement Appendix A - End User License Agreement Appendix B - Support and Service Level Agreement Appendix C - Employer Data Form BOARD OF COUNTY COMMIS COLLIER COUNTY, FLORIDA RV- Tim Nance, Chairman HeafthCare impact Associates, LLC By: Signature Type/print signature and 10 SSA SUBSCRIPTION (041515) Packet Page -1877- 7/7/2015 16.E.1. EXH I BIT A - PROPOSAL (following this page) Packet Page -1878- Q C 0 v a� U O O C.3 Packet Page -1879- 7/7/2015 16. E.1. U) 0 D 0 L E CD .2! a� O w �rtrtj `cc TW 1 • 0 1� E L a� Cu c� O Co c .0 Cu c CD E 0 Q Lt 9 Packet Page -1880- 7/7/2015 16.E.1. I J V1 t� T s m 6% M d L 0 W i z Packet Page -1881- 7/7/2015 16.E.1. 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J a� C O J c CO o Co _ (D Q E c o0 W 3 =U 4 O = cc* Packet Page -1892- 7/7/2015 16.E.1 . i i N C_ � � O O d w- 'p O 'O � � C La- J � 's c a� O N r �L W c� r, J �f N iJ Ti w ILI E. s C O ::+ c O 4 O O8two CL .0 .°0 E ° N off'- CD 3 c Q ? O C = a� c —Z ro O o ' C — CO c02 r �L W c� r, J �f N iJ Ti w ILI E. s �■ 0 s 6 N N N T Co U O J r cc o) N 3 >'- CO CD s o -o CO 600sa� ft D U- H c •� r N Co H N LL) dam' mT � Co � z 6 a Co Packet Page -1893- i 7/7/2015 16.E.1. C a P O N .y a w W_ Packet Page -1894- LL � rc CL m U z G $ - b o �g �g r . m 7/7/2015 a 1 16.E.1. I 7/7/2015 16.E.1. EXHIBIT B- BUSINESS ASSOCIATE AGREEMENT (following this page) Packet Page -1895- 7/7/2015 16.E.1. BUST -TESS ASSOCILAIT AGREEMEir i This Business Associate Agreement ( "Agreement") is entered into between COUNTY ( "Covered Entity') and HealthCare Impact Associates, LLC ("HiA "), Associate "), effective as of this day of , 2015 (the "Effective l WHEREAS, Covered Entity and Business Associate have entered into, or plan enter into, an arrangement pursuant to which Business Associate may provide services for C Dvered Entity that require Business Associate to access, create and use Protected Health Infog nation ( "PHI") that is confidential under state and/or foderal law; and WHEREAS, Covered Entity and Business Associate intend to protect the priva�-y and provide for the security of PHI disclosed by Covered Entity to Business Associate, or lected or created by Business Associate, in compliance with the Health Insurance Portabilittv and Accountability Act of 1996, Public Law 104 -191 ( "HIPAA'), and the regulations pro m lgated there under, including, without limitation, the regulations codified at 45 CFR Parts 160 d 164 ( "HIPAA Regulations'; the Health Information Technology for Economic and Clinical ealth Act, as incorporated in the American Recovery and Reinvestment Act of 2009, ind its implementing regulations and guidance issued by the Secretary of the Department of Heath and Human Services (the "Secretary") (the "HITECH Act "); and other applicable state and Federal laws, all as amended from time to time, including as amended by the Final Rule issued by the Secretary on January 17, 2013 titled "Modifications to the HIPAA Privacy, S curlty, Enforcement, and Breach Notification Rules under the Health Information Technology for Economic and Clinical Health Act and the Genetic Information Nondiscrimination Act; Other Modifications to the HIPAA Rules "; and j WHEREAS, the HIPAA Regulations require Covered Entity to enter into an ement with Business Associate meeting certain requirements with respect to the Use and Disc1 ure of PHI, which are met by this Agreement. NOW, THEREFORE, in consideration of the mutual promises contained herein �md the exchange of information pursuant to this Agreement, the parties agree as follows: 1. Definitions. Capitalized terns used herein without definition shall have the meanings to them in the HIPAA Regulations or the HITECH Act, as applicable unless otherwise herein. 2.Obliaations and Activities of Business Associate. a. Permitted Uses and Disclosures. Business Associate shall only se or Disclose PHI for the purposes of (i) performing Business Associate's obligations under xhibit A of this Agreement ( "Exhibit A ") and as permitted by this Agreement; or (ii) as permi or Required By Law; or (iii) as otherwise permitted by this Agreement. Business Associate shall Page 1 of 10 Packet Page -1896- 7/7/2015 16.E.1. not Use or further Disclose PHI other than as permitted or required by this Agreement or as Required By Law. Further, Business Associate shall not Use or Disclose PHI in any manner that would con#itute a violation of the HIPAA Regulations or the HITECH Act if so used by Covered Entity, except that Business Associate may Use PHI (i) for the proper management and administration of Business Associate; and (ii) to carry out the legal responsibilities of Business As�ociate. Business Associate may Disclose PHI for the proper management and administration of B Lisiness Associate, to carry out its legal responsibilities or for payment purposes as specified in 45 CFR § 164.506(c)(1) and (3), including but not limited to Disclosure to a business associate on bhalf of a covered entity or health care provider for payment purposes of such covered entity oi health care provider, with the expectation that such parties will provide reciprocal assistance to overed Entity, provided that with respect to any such Disclosure either: (i) the Disclosure is Requ red By Law; or (ii) for permitted Disclosures when Required By Law, Business Associate shall btain a written agreement from the person to whom the PHI is to be Disclosed that such person voll hold the PHI in confidence and will not use and further disclose such PHI except as Required y Law and for the purpose(s) for which it was Disclosed by Business Associate to such perso4ch d that such person will notify Business Associate of any instances of which it is aware in the confidentiality of the PHI has been breached. b. Avvropri . e Safeg Business Associate shall iml administrative, physical and technical safeguards that (i) reasonably and appropriately pra confidentiality, integrity and availability of electronic PHI that it creates, receives, main transmits on behalf of Covered Entity; and (ii) prevent the Use or Disclosure of PHI other contemplated by Exhibit A and this Agreement. C. Compliance with Security Provisions. Business Associate A implement and maintain administrative safeguards as required by 45 CFR § 164.308, 1 safeguards as required by 45 CFR § 164.3 10 and technical safeguards as required by 45 164.3 12; (ii) implement and document reasonable and appropriate policies and proced required by 45 CFR § 164.3 16; and ( iii) be in compliance with all requirements of the H Act related to security and applicable as if Business Associate were a "covered entity," term is defined in HIPAA. d. Compliance with Privacy Provisions. Business Associate shall c and Disclose PHI in compliance with each applicable requirement of 45 CFR § 16 Business Associate shall comply with all requirements of the HITECH Act related to pri applicable as if Business Associate were a "covered entity," as such term is defined in To the extent Business Associate is to carry out one or more of Covered Entity's obli under Subpart E of 45 CFR Part 164, Business Associate shah comply with the require Subpart E that apply to Covered Entity in the performance of such obligation(s). e. Duty to Mitigate. Business Associate agrees to mitigate, to the practicable and mandated by law, any harmful effect that is known to Business Associo Use or Disclosure of PHI by Business Associate in violation of the requirements Page 2 of 10 Packet Page -1897- :t the 1s or rn as (i) sical FR § ,s as ECH such Use 4(e). and AA. in(s) is of extent teofa )f this DV 7/7/2015 16.E.1. Agreement. f. EnMjli . To facilitate Business Associate's compliance w Agreement and to assure adequate data security, Covered Entity agrees that all PHI pro transmitted to Business Associate pursuant to Exhibit A shall he provided or transmi manner which renders such PHI unusable, unreadable or indecipherable to unauthorized through the use of a technology or methodology specified by the Secretary in the guidam under section 13402(h)(2) of the HITECH Act. Covered Entity acknowledges that failure could contribute to or permit a Breach requiring patient notification under the BMCH further agrees that Business Associate shall have no liability for arty Breach caused failure. Reportinrt. a. Security- Incidents and/or Unauthorized Use or Disclosure. Business As shall report to Covered Entity a successful Security Incident or any Use and/or Disclosure other than as provided for by this Agreement or permitted by applicable law within a reap time of becoming aware of such Security incident and/or unauthorized Use or Disclose not later than five (5) days thereafter), in accordance with the notice provisions set forth Business Associate shall take (i) prompt action to cure any such deficiencies as rm requested by Covered Entity, and (ii) any action pertaining to such Security Incident unauthorized Use or Disclosure required by applicable federal and state laws and regulal such successful Security Incident or unauthorized Use or Disclosure results in a Br defined in the HITECH Act, then Covered Entity shall comply with the requirements of 3.b below. b. Breach of Unsecured PHI. The provisions of this Section 3.b are effecti respect to the Discovery of a Breach of Unsecured PHI occurring on or after Septern 2009. With respect to any unauthorized acquisition, access, Use or Disclosure of ( Entity's PHI by Business Associate, its agents or subcontractors, Business Associate investigate such unauthorized acquisition, access, Use or Disclosure; (ii) determine whets unauthorized acquisition, access, Use or Disclosure constitutes a reportable Breach ut HITECH Act; and (iii) document and retain its findings under clauses (i) and (ii). If E Associate Discovers that a reportable Breach has oocurned, Business Associate shal Covered Entity of such reportable Breach in writing within five (5) days of the date E Associate Discovers such Breach. Business Associate shall be deemed to have disco Breach as of the first day that the Breach is either known to Business Associate or at employees, officers or agents, other than the person who committed the Breach, or by ex reasonable diligence should have been known to Business Associate or any of its emj officers or agents, other than the person who committed the Breach. To the ex information is available to Business Associate, Business Associate's written notice shall the information required by 45 CFR § 164.410(c). Business Associate shall promptly sup the written report with additional information regarding the Breach as it obtain information. Business Associate shall cooperate with Covered Entity in meeting I Entity's obligations under the HITECH Act with respect to such Breach. Page 3 of 10 Packet Page -1898- this d or in a issued i do so .ct and r such of PHI unable rout aerein. onably and/or ons. If ach as ►cction ,e with per 23, overed call (i) ;r such ter the isiness notify isiness ,erect a of its rcising loyees, :nt the nclude lement such 7/7/2015 16.E.1. 4. Business Associate's Agents. To the extent that Business Associate us more subcontractors or agents to provide services under Exhibit A, and such subcontr agents receive or have access to PHI, Business Associate shall sign an agreement v subcontractors or agents containing substantially the same provisions as this Agreement. Rights of Individuals. a. Access to PHI. Within ten (10) days of receipt of a request by C Entity, Business Associate shall make PHI maintained in a Designated Record Set avail Covered Entity or, as directed by Covered Entity, to an Individual to enable Covered E fulfill its obligations under 45 CFR § 164.524. Subject to Section 5.b below, (i) in the eve any Individual requests access to PHI directly from Business Associate in connection routine billing inquiry, Business Associate shall directly respond to such request in com with 45 CFR § 164.524; and (ii) in the event such request appears to be for a purpose ott a routine billing inquiry, Business Associate shall forward a copy of such request to ( Entity and shall fully cooperate with Covered Entity in responding to such request. In eith a denial of access to requested PHI shall not be made without the prior written con Covered Entity. b. Access to Electronic Health Records. If Business Associate is de use or maintain an Electronic Health Record on behalf of Covered Entity with respect then, to the extent an Individual has the right to request a copy of the PHI maintained Electronic Health Record pursuant to 45 CFR § 164.524 and makes such a request to I Associate, Business Associate shall provide such individual with a copy of the ink contained in such Electronic Health Record in an electronic format and, if the Indiv. chooses, transmit such copy directly to an entity or person designated by the Individual. I Associate may charge a fee to the individual for providing a copy of such information,) fee may not exceed Business Associate's labor costs in responding to the request for 0 The provisions of 45 CFR § 164.524, including the exceptions to the requirement to p copy of PHI, shall otherwise apply and Business Associate shall comply therewith as if I Associate were the "covered entity," as such term is defined in HIPAA. At Covered request, Business Associate shall provide Covered Entity with a copy of an Individu maintained in an Electronic Health Record in an electronic format and in a time and designated by Covered Entity in order for Covered Entity to comply with 45 CFR § I& amended by the HITECH Act. ie or rs or such tble to tity to nt that with a )Nance :r than :)vered r case, =t of ned to :) PHI, n such tsiness nation .ual so iciness it such COPY• wide a iciness ,ntity's is PHI nanner 524. as C. Amendment of PHI. Business Associate agrees to make any amen ent(s) to PHI in a Designated Record Set that Covered Entity directs or agrees to pursuant to 45 I1 CFR § 164.526 at the request of Covered Entity or an Individual, and in the time and manner designated by Covered Entity. d. Accounting _Ri lg lts. This Section 5.d is subject to Section 5.e Business Associate shall make available to Covered Entity, in response to a request f Individual, information required for an accounting of disclosures of PHI with respea Page 4of10 Packet Page -1899- below. *om an to the 1 7/7/2015 16.E.1 Individual, in accordance with 45 CFR § 164.528, incorporating exceptions to such accounting designated under such regulation. Such accounting is limited to disclosures that were made in the six (6) years prior to the request and shall not include any disclosures that were made prior to the compliance date of the HIPAA Regulations. Business Associate shall provide such infori aation as is necessary to provide an accounting within ten (10) days of Covered Entity's request Such accounting must he provided without cost to the Individual or to Covered Entity if it is a first accounting requested by an Individual within any six (6) month period; however, are nable, cost -based fee may be charged for subsequent accountings daring that period if Business Associate informs Covered Entity and Covered Entity informs the Individual in advance of the fee, the Individual is afforded an opportunity to withdraw or modify the request and c Bing such fee is not otherwise contrary to law. Such accounting obligations shall survive term nation of this Agreement and shall continue as long as Business Associate maintains PHI. C. Accounting of Disclosures of Electronic Health Records. The pmvi ons of this Section 5.e shall be effective on the date specified in the HITECH Act. If' usiness ciate is deemed to use or maintain an Electronic Health Record on behalf of Covered Entity, en, in addition to complying with the requirements set forth in Section 5.d above, Business ciate shall maintain an accounting of any Disclosures made through such Electronic Health rd for Treatment, Payment and Health Care Operations, as applicable. Such accounting shall mply with the requirements of the HITECH Act. Upon request by Covered Entity, Business 'ate shall provide such accounting to Covered Entity in the time and manner specified by vered Entity and in compliance with the HrMCH Act. Alternatively, if Covered Entity respo to an Individual's request for an accounting of Disclosures made through an Electronic Health ecord by providing the requesting Individual with a list of all business associates acting on of Covered Entity, then Business Associate shall provide such accounting directly to the esting Individual in the time and manner specified by the HITECH. Act. i f. Agreement to Restrict Disclosure. If Covered Entity is required to mply with a restriction on the Disclosure of PHI pursuant to Section 13405 of the HITECH A t, then Covered Entity shall, to the extent necessary to comply with such restriction, provide written notice to Business Associate of the name of the Individual requesting the restriction and -he PHI affected thereby. Business Associate shall, upon receipt of such notification, not Disc se the identified PHI to any health plan for the purposes of carrying out Payment or Healih Care Operations, except as otherwise required by law. Covered Entity shall also notify iness Associate of any other restriction to the Use or Disclosure of PHI that Covered Entity hal agreed to in accordance with 45 CFR § 164.522. 6. Remuneration and Marketing. 1 a. Remuneration for PHI. This Section 6.a shall be effective with reopect to exchanges of PHI occurring six (6) months after the date of the promulgation of final regulations implementing the provisions of Section 13405(d) of the HITECH Act. On and after such date, Business Associate agrees that it shall not, directly or indirectly, receive remune on m exchange for any PHI of Covered Entity except as otherwise permitted by the HITECH Air. b. Limitations on Use of PHI for Marketing ses. Business Page 5 of 10 Packet Page -1900- i 7/7/2015 16.E.1. - shall not Use or Disclose PHI for the purpose of matting a communication about a putt or service that encourages recipients of the communication to purchase or use the p , uct or service, unless such communication: (I) complies with the requirements of subparagraph 01 (ii) or (iii) of paragraph (1) of the definition of marketing contained in 45 CFR § 164.501, 1 nd (2) complies with the requirements of subparagraphs (A), (B) or (C) of Secti on 13406(a)(2) of the HITECH Act, and implementing regulations or guidance that may be issued or amended from time to time. Covered Entity agrees to assist Business Associate in determining if the f going requirements are met with respect to any such marketing communication. 7. Governmental Access to Records. Business Associate shall make its ' iternal practices, books and records relating to the Use and Disclosure of PHI available to the Sexctary for purposes of determining Covered Entity's compliance with the HIPAA Regulations a nd the HITECH Act. Except to the extent prohibited by law, Business Associate agrees to notify Covered Entity of all requests served upon Business Associate for information or docum to .on by or on behalf of the Secretary. Business Associate shall provide to Covered Entity a py of any PHI that Business Associate provides to the Secretary concurrently with providing h PHI to the Secretary. 8. Minimum Necessary. To the extent required by the HITECH Act, Buisiness Associate shall limit its Use, Disclosure or request of PHI to the Limited Data Set or, if 96ded, to the minimum necessary to accomplish the intended Use, Disclosure or request, respec 'vely. Effective on the date the Secretary issues guidance on what constitutes `minimum ne ces " for purposes of the HIPAA Regulations, Business Associate shall limit its Use, Disclosure or request of PHI to only the minimum necessary as set forth in such guidance. 9. State Privacy Laws. Business Associate shall comply with state laws to xtent that such state privacy laws are not preempted by HIPAA or the HITECH Act. 10. Termination. a. Breach by Business Associate. If Covered Entity knows of a pattim of activity or practice of Business Associate that constitutes a material breach or viol n of Business Associate's obligations under this Agreement, then Covered Entity shall p6y notify Business Associate. With respect to such breach or violation, Business Associate shall take reasonable steps to cure such breach or end such violation, if possible. If such steos are either not possible or are unsuccessful, upon written notice to Business Associate, C ered Entity may terminate its relationship with Business Associate. b. Breach by Covered Entity_. If Business Associate knows of a pa activity or practice of Covered Entity that constitutes a material breach or violation of ( Entity's obligations under this Agreement, then Business Associate shall promptly Covered Entity. With respect to such breach or violation, Covered Entity shall take rem steps to cure such breach or end such violation, if possible. If such steps are either not pos are unsuccessful, upon written notice to Covered Entity, Business Entity may termij relationship with Covered Entity. Page 6 of 10 Packet Page -1901- of or its i 7/7/2015 16.E. C. Automatic Termination. This Agreement will automatically tend without any further action by the parties hereto, at such time as there are no longer any Agreements by and between the parties hereto. 7 d. Effect of Termination. Upon termination of this Agreement for any Business Associate shall either return or destroy all PHI, as requested by Covered Ent Business Associate or its agents or subcontractors still maintain in any form, and shall n copies of such PHI. If Covered Entity requests that Business Associate return PHI, st, shall be returned in a mutually agreed upon format and timeframe. If Business A reasonably determines that return or destruction is not feasible, Business Associate shall c to extend the protections of this Agreement to such PHI, and limit further uses and disclo such PHI to those purposes that make the return or destruction of such PHI not fen Business Associate is asked to destroy the PHI, Business Associate shall destroy P manner that renders the PHI unusable, unreadable or indecipherable to unauthorized pe specified in the HITECH Act. 11. Amendment. The parties acknowledge that state and federal laws relating security and privacy are rapidly evolving and that amendment of this Agreement may be r to ensure compliance with such developments. The parties specifically agree to take suck as is necessary to implement any new or modified standards or requirements of HIPS HIPAA Regulations, the HITECH Act and other applicable laws relating to the sect confidentiality of PHI. Upon the request of Covered Entity, Business Associate ag promptly enter into negotiation concerning the terms of an amendment to this Agi incorporating any such changes. 12. No Third Party Beneficiaries. Nothing express or implied in this A intended to confer, nor shall anything herein confer, upon any person other than Cov Business Associate and their respective successors or assigns, any rights, remedies, or liabilities whatsoever. 13. Effect on Underlying Arrangement. In the event of any conflict Agreement and any underlying arrangement between Covered Entity and Business. terms of this Agreement shall control. 14. Survival. The provisions of this Agreement shall survive the expiration of any underlying arrangement between Covered Entity and Business r 15. Interpretation. This Agreement shall he interpreted as broadly as nec implement and comply with HIPAA, the HIPAA Regulations and the HITECH Act. Tl agree that any ambiguity in this Agreement shall be resolved in favor of a meaning that and is consistent with such laws. 16. Governing Law. This Agreement shall be construed in accordance with of the State of Florida. Page 7of10 Packet Page -1902- ,that in no i PHI 'S of e. If in a is as data action A, the dty or ees to rent is Entity, this the or ;ary to parties laws 1. 51) 7/7/2015 16.E.1. 17. Notices. All notices required or permitted under this Agreement shalli be in writing and sent to the other party as directed below or as otherwise directed by eith party, from time to time, by written notice to the other. All such notices shall be deemed validl given upon receipt of such notice by certified mail, postage prepaid, facsimile transmission, ail or personal or courier delivery: 7 If to Covered Entity: Collier County Government Center 3311 Tamiami Trail E. Naples, FL 34112 Attn: Risk Management Director Telephone no: 239- 252 -8461 Facsimile no: 239- 252 -8048 I I If to Business Associate: Contract Management HealthCare Impact Associates, LLC Baker Technology Plaza 6121 Baker Road, Suite 104 Minnetonka, MN 55345 Telephone no: 612 - 225 -4492 18. Indemnification. The Business Associate shall indemnify and hold ess Covered Entity and any of Covered Entity's affiliates, directors, officers, employees and agents from and against any claim, cause of action, liability, damage, cost or expense {' luding reasonable attorney's fees) arising out of or directly relating to any non - permitted disclosure of Protected Health Information or other breach of this Agreement by Business Associate or any affiliate, director, officer, employee, agent or subcontractor of Business Associate. 19. Miscellaneous. a. Severability. In the event that any provision of this Agreement is adjudged by any court of competent jurisdiction to be void or unenforceable, all rez airing provisions hereof shall continue to be binding on the parties hereto with ti e same force and effect as though such void or unenforceable provision had been d -Ieted. b. Waiver. No failure or delay in exercising any right, power or remedy under shall operate as a waiver thereof, nor shall any single or partial exercise I of any right, power or remedy hereunder preclude any other further exercise thereof or the exercise of any other right, power or remedy. The rights provided htunder are cumulative and not exclusive of any rights provided by law. c. Entire Agreement. This Agreement constitutes the entire agreement bet parties hereto relating to the subject matter hereof, and supercedes any Page 8 of 10 Packet Page -1903- the or 1 7/7/2015 16.E.1. i contemporaneous verbal or written agreements, communications 1 a 4 representations relating to the subject matter hereof. 1 Countemarts. Facsimile. This agreement may be signed in two or counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. A copy of this Agre _._iature shall be deemed to be an original. gnature page to follow) Page 9 of 10 Packet Page -1904- more i 1 7/7/2015 16.E.1. Il`: WI"•NESS WHEREOF, the parties i. -aeto have caused tl:is Agreement t% w sip ed as of the date first set forth above. First Witness: Signature Print Name: Second Witness: Signature Print Name: As to Form and Legality: Assistant County Attorney COVERED ENTITY: BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA 0 Jeff Walker, Director of Risk BUSINESS ASSOCIATE: HealthCare Impact Associates, LLC Print Name: Page 10 of 10 Packet Page -1905- 7/7/2015 16.E.1. HEALTH ee, Clarity. Compliance. Conical, APPENDIX A: End User Software License and Warranty Agreement PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY, JHEY APPLY UPON YOUR EXECUTION OF THE SOFTWARE AND SERVICE AGREEMENT (THE "AGREEMENT) TO WHICH THIS IS APPENDED AND GOVERN YOUR USE OF THE HEALTH E(FX) SOFTWARE (HEREINAFTER "SOFTWARE . THIS LICENSE IS NOT A SALE. TITLE, OWNERSHIP, PROPRIETARY AND INTELLECTUAL PROPERTY RIGHTS TO THE SOFTWARE AND DERV IVE PRODUCTS, ACCOMPANYING MATERIALS AND ALL SERVICES RE ) TED THERETO REMAIN THE EXCLUSIVE PROPERTY OF HEALTHCARE IM ACT ASSOCIATES, LLC ( "LICENSOR ', "WE' OR -OUR'. LICENSEE SHALL BE REFERRED TO AS "YOU" OR "YOUR ". 1. Grant of License Subject to the terms of the Agreement, Licensor grants You a limited, non - exclusive, non - transferable, non assignable license to use the Software and such associated documentation and technical materials as may be available on the date Effective Date of the Master Agreement. This license also extends to any enhancements that W may choose to release. Any enhancements or other modifications to the Software w II be made at Our sole discretion; if upgrades or changes are made, they W41 be communicated to You and You may have the opportunity to use them as provided the Master Agreement. Your license to use the Software will be automatically revoked if the Master Ag is terminated or as described herein. 2. Ownership And Warranty (a) At all times and for all purposes, We will be the sole and exclusive owner Software. Nothing in the Agreement or any other document You receive will re any transfer of any ownership in the Software to You. Because We are the exc owner of the Software, we also retain the right to make any changes. Nothing Agreement, this license, or any other document You receive will grant You the ri make any changes to the Software. No modifications, additions or deletions m made to the Software by You. In the event You violate this provision and unlg create any derivative work, You agree that title to such derivative work remains wi In the event that You or anyone working for You creates a derivative work based Software, You must immediately advise us of this fact and take immediate steps 1 over to Us all documentation, code, and all copies of the derivative work in any You may not distribute, publicly display, reverse engineer, decompile, disassem otherwise try to discover the Source Code for the Software. End -User License Agreement (041515) Packet Page -1906- the t in the it to (be fully Us. the turn or I - 7/7/2015 16.E.1. (b) There are fields in the Software that are customizable. This fact does not gran` You any ownership in the Software. In the event that We (or any party we auth rize) undertake any customizations or augmentations for You (which would be the subj at of a separate agreement), those customizations or augmentations will always Our exclusive property. Under no circumstances will customizations (or augmentation and any related documentation be construed as a work made for hire, and no own, rship rights shall be transferred to or created in You or any third party. You will not own r sale or marketing rights. You also have the obligation to ensure that unauthorized third parties do not violate Our ownership rights. (c) In the event any part of the Software were ever determined to be a work made for hire, You hereby agree to convey all claims of ownership and authorship that ar from such a determination to Us. (d) We warrant that: (1) We have legal title and rights of ownership in the Software and have fu power and authority to grant You a license to use it; (ii) to the best of Our knowledge, the use of the Software will in no way constitute an infringement or other violation of any patent, copyright, trade secret, trademark, or other proprietary right of any third party; and (iii) as set forth in Section 6 of the Master Agreement, Our company and Software complies with applicable data security laws, including requirements of the Massachusetts Code of Regulations, 201 CMR Sect 17.00 et seq. (iv) the Software calculates and reports according to the requirements applicable to Employers of the Affordable Care Act (ACA), and as aisc described in the Proposal appended to the Master Agreement as Exhibit A This warranty is dependent on You meeting Your data tender obligations to Us. 3. Assignment or Transfer of Rights You may not transfer or sub - license Your license. You may not resell Your licen#9 nor provide access to the Software to parties that are not specifically authorized to usO it by Us. 4. Termination Unauthorized use, copying, or transfer of the Software, or portions or dery products, or the accompanying materials or failure to comply with the above restrll will result in automatic and immediate termination of this license and will make ava to Licensor other legal remedies. Your obligations of confidentiality do not end termination of the Master Agreement. 2 End-User License Agreem nt (041515) Packet Page -1907- upon 7/7/201516 5. Data Security (a) Data Security Safeguards. We have implemented and maintain an info security program that incorporates administrative, technical, and physical saf designed to ensure the security, confidentiality, and integrity of Personal Informs defined in the Master Agreement) in compliance with applicable laws, including limitation the requirements contained in the Massachusetts Code of Regulatic CMR Sections 17.00 et. seq. (b) Data Security Breach. We will notify you promptly and in no event later than fi business days following our discovery of a Data Security Breach (defined belcm shall (i) undertake an investigation of such Data Security Breach and (ii) reasc cooperate with you in connection with such investigation, including by providing yo a summary of the results of our investigation; (iii) not make any public announces relating to such Data Security Breach without your prior written approval, which sh+ be unreasonably withheld; and (iv) take all necessary and appropriate corrective reasonably possible on our part to prevent a recurrence of such Data Securky B (the costs of such action shall be paid as set forth in the next subsection). For purl of this Agreement, the term "Data Security Breach" shall mean any of the foil occurring in connection with Personal Information (provided that you have sei Personal Information to us through the secure transfer protocols we provide to Y connection with your use of the Software: (a) the loss or misuse of Pei Information; (b) disclosure to, or acquisition, access or use' by, any perso authorized to receive Personal Information, other than in circumstances in whit disclosure, acquisition, access or use is made in good faith and within the tours scope of the employment with Us or other professional relationship with Us and not result in any further unauthorized disclosure, acquisition, access or use of Pei Information. (c) Remediation of a Data Security Breach. The remediation required above include without limitation (a) development and delivery of notices to you of indivil whose Personal Information may have been affected; (b) investigation and resolut the causes and impacts of the Data Security Breach; and (c) such other measueei we may mutually determine and agree in writing are reasonable and commons With the nature and level of severity of the Data Security Breach. In the event thi Data Security Breach was a result of action or inaction by Us, or the failure c Software to comply with the data security measures notes in this Section 5, then w be solely responsible for the costs and expenses of all remediation measures we If, on the other hand, the Data Security Breach was a result of Your actions or inao then we will invoice You for our assistance in our remediation efforts. 6. Limited Warranty and Disclaimer PROVIDED THAT ANY AND ALL MODIFICATIONS TO THE SOFTWARE BEEN MADE EXCLUSIVELY BY US, OR AUTHORIZED BY US, WE WARRANT 3 En"ser License Agreement (D4151 5) Packet Page -1908- i (as lout 201 ) (5) and ably with ants not the ) in. not the and may n of that the the will VE IAT E.1.I 7/7/2015 16.E.1. THE SOFTWARE WILL OPERATE IN SUBSTANTIAL CONFORMITY WITH 1THE DESCRIPTION IN THE MASTER AGREEMENT, INCLUDING THE PROPOSAL, FOR THE TERM OF THE LICENSE. NOTWITHSTANDING THE FOREGOING HIS WARRANTY IS VOIDABLE AS SET FORTH IN SECTION 2(d)(iv) ABOVE. EX EPT AS OTHERWISE SET FORTH HEREIN, WE DISCLAIM ALL OTHER WARRA IES, EITHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FIT ESS FOR A PARTICULAR PURPOSE. WE MAKE NO WARRANTY THAT THE SOFTWARE IS ERROR FREE, THAT ALL ERRORS IN THE SOFTWARE WI BE CORRECTED, THAT THE SOFTWARE WILL OPERATE IN CONJUNCTION ITH ANY OTHER PROGRAMS (UNLESS SOLD TO YOU BY US TO OPERATE ITH THIS SOFTWARE) OR THAT THE SOFTWARE'S FUNCTIONALITY WILL EET YOUR REQUIREMENTS. The duration of any implied warranties is limited to the period stated above. Our liability shall not exceed the coverage available to You under the insurance policies re in the Master Agreement Notwithstanding the foregoing, Our warranty obligations are expressly contingent You: a) notifying Us of a warranty claim within ten (10) days after having act# or constructive knowledge of the same; b) providing sufficient detail of the facts associated with a warranty claim in writing so as to allow Us to reasonably reproduce any alleged defects and errors ii� the Software, or demonstrate to Us such defect or error; c) providing Us with sufficient information in order to verify that any error or de ct is solely attributable to the Software; and d) agreeing that any corrections to the Software shall be performed only by Us. We reserve the right, without notice, to supersede versions of the Software with versions, which may add, modify, or eliminate functionality of earlier versions. newer versions may be provided by Us as warranty replacements. 7. Limitation of Liability NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE MA ER CONTRACT, IN NO EVENT SHALL WE BE LIABLE FOR ANY INCIDE TAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOST PRO ITS, LOST GOODWILL, COST OF COVER OR OTHER SPECIAL OR INDI CT DAMAGES ARISING FROM THE USE OF THE SOFTWARE, HOWEVER CA ED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT OR INT INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND INDEPENDENT ONY FAILURE OF ESSENTIAL PURPOSE OF THE LIMITED WARRANTY AND REMES PROVIDED HEREIN. THIS DISCLAIMER SHALL APPLY WHETHER OR NWE HAVE BEEN APPRISED OF THE POSSIBLITY OF SUCH DAMAGES. IN NO 4 End -User License Agreement (041515) Packet Page -1909- 7/7/2015 16.E.1. SHALL OUR AGGREGATE LIABILITY FOR DAMAGES IN CONNECTION WITH HIS AGREEMENT EXCEED THE AMOUNTS AVAILABLE TO YOU THROUGH iTHE INSURANCE POLICIES MANDATED IN THE MASTER AGREEMENT. 1, The parties acknowledge that the limitations set forth in this Agreement are int I to the amount of fees levied in connection with the Master Agreement and that were a to assume any further liability other than as set forth herein, such fees would set substantially higher. 8. Data i While We will ensure that our Software complies with data security laws, You also 1have a responsibility to safeguard your data and Personal Information. While We eriify, validate, audit and alert on data we receive from You, since We acquire the n eded source data from You, You are responsible for the source data we receive, a d for using the information the Software generates in a proper manner and as designe You acknowledge that We shall not be liable for any errors, omissions, delays, or sses caused by You or Your agents, including the consequences of untimely, in lete, incorrect or unusable data. You are also responsible for complying with all local, tate, and federal laws pertaining to the use and disclosure of any data. 9. General The laws of the State of Florida will govern this Agreement. Licensor: HealthCare Impact Associates, LLC, 6121 Baker Road, Suite 104, Minnetonka, MN 55345. I' 1 I I I I I i 5 End-User Lioenee Agreement (041515) -1910- I Packet Page , 7/7/2015 16.E.1. HEALTH a (D. Clarity. Compliance. Control. APPENDIX B: Support and Service Level Agreement 1.0 Maintenance Services. Commencing on the Effective Date and during the term of Agreement, HIA shall provide Employer with the following maintenance services ( "Mainti Services "): 1.1 Defect Correction, When Employer reports a suspected Defect in the Service or re (the "Service Offering ") to HIA, HIA shall attempt to recreate the suspected Defect bas upon information provided by Employer. If the Defect is confirmed, HIA shall implement a . n into the Service Offering and provide Employer a Correction. For the purpose herein, a " efect" is a material failure of the Service Offering to operate substantially in accordance this Agreement, which failure is attributable exclusively to Licensor or the Software. A "Co on" means, without limitation, workarounds, support releases, component replacements, pidches and/or documentation changes, as HIA deems reasonably appropriate. 1.2 Technical Support and Communkatione, Employer may report problems and seek assistance regarding Employer's use of the Service Offering. Employer can report prob s or request service using HIA's online issue reporting and tracking tool. HIA shall res nd to Employer's requests for Technical Support as defined In the response tables in section 3.0 low. Technical Support is available 7:00 a.m. to 6:00 p.m. CST Monday through Friday, a uding holidays. 1.3 System Updatg: The availability and intent to release a Software version upd to is communicated to the Employer at least one month in advance of the date of the intended ase. Preliminary product release notes will be provided for the Employer to access pending u aces; Employer will have the option to opt -out of the update process. Should Employer wish to t-out of the update process, it must inform the Company of its decision prior to the release date. �n the event that Employer does not update to a new version of the Software, future updates will riot be offered to Employer. 1.4 Maintenance Schedulina: Scheduled maintenance will be communicated to the Emp er at least one (1) day in advance. Standard downtime for any scheduled maintenance is Is than four (4) hours. Maintenance is scheduled to be before 7:00 a.m. CST and after 7:00 p.m. ST) (i.e. off working hours) whenever possible. The foregoing notwithstanding, when it is the interest of the Employer, any emergency threat can be addressed without notice of main ance scheduling. Maintenance downtime shall not be included against the calculation of em uptime warranties or service credits. 1.3 Data Back-up: Employer data backup is scheduled nightly and occurs automatically. Employer acknowledges that data back up, regardless of frequency (i.e. if Employer request ore frequent data back -up than once nightly), will limit access to system for brief periods. S tem downtime for data back up shall not be included against the calculation of system time warranties or related service credits. 1.5 Additional Charces: Technical support and service level warranties apply to priority P P21 P3, and P4 issues described in Section 3.0 below. P5 requests, if not associated with a technical Support and Service Level Agreement (041515) Packet Page -1911- 7/7/2015 16.E.1. i i , performance or standard system functionality will be subject to review and may be subject to additional costs, upon prior notice and approval by the Employer. 2.0 System Access and Service Level Warranties: HIA warrants that the Service target of nin -nine point 5 percent uptime (99.6%) will be met, or HIA will be subject to service credit penalties as d ribed in section 3.0 and 4.0 below. This warranty will not apply to any downtime that occurs as a resuK f any fault of Employer or as a result of failure of or problems in Employer's equipment, any Employer r or utility problems, any problems in Employer's network, or any other problems or causes for which IA is not responsible. Maintenance periods do not impact uptime measurements. Measure nt of performance will be monthly via HIA's reporting tool to measure downtime every 15 minutes du the intended 24 hour, 7 day per week operational period and percentage downtime will be calculia ad by dividing the number of 'unavailable' measurements by the total number of measurements throughoi at the month. 3.0 Technical Support - issue Prioritization, Response Time, and Resolution: Technical sup shall be provided to Employer by HIA subject to prioritization of requests and response, engage t and resolution times as follows: 3.1 Priority Support Issues Rating ¢,Soups - Definition: Major functional element is unavailable. (i.e. One or more dashboaros or Unusual results from functional areas. (i.e. P4 3.2 Time to Respond': P2 1 30 P4 14 2 Support and Service Level Agreement (041515) Packet Page -1912- 7/7/2015 16.E.1. 3.3 Time to Enaaae': 10, 3.4 Time to Resolve": P2 14 P4 132 hours Suspected 1 Defect I Best Effort ("Times to respond, engage and resolve technical support issues within HIA's technical support hours of operation between 7:00 a.m. and 6:00 p.m. CST.) 4.0 Service Credit Formula: The Employer may request review and audit of system availabilf y and performance of this Support and Service Level Agreement. If deficiencies are found Service Credit shall be applied to reduce the Service Fees owed by Client to HIA in the subsequent month under the to ms of this Agreement. Such Service Credits will be applied against the Services provided by HIA to CN nt, as defined in the table below. For the duration of the Master Agreement, HIA will use the SLKs and ice Credit formula herein to compute on a monthly basis any Service Credits owed to Client. If HIA fails to provide a timely response to each Issue Rating Group within the allotted times In month, then Client shall receive a Service Credit based upon the failure(s) for each Issue Rating ( meet the time to respond, time to engage, and time to resolve criteria In the calendar month as the "Service Credit" table below. Each Service Credit percentage represents a deduction percentage from the monthly fee Client is obligated to pay HIA for support services. 3 Support and Servloe Level Agreement (041515) Packet Page -1913- given )up to led in ° said 1 7/7/2015 16.E.1. i APPENDIX C - EMPLOYER DATA FOR (following this page) Packet Page -1914- HEALTH e e Clarity. Compliance. Control. ORGANIZATIONAL INFORMATION Client Legal Name 1 I 7/7/2015 16.E.1. PROPOSAL DATA FO (Collier Countv, a political subdivision of the State of Florida I I Street Address Tamiami Trail E., Suite #303 City Naples Type of Organization (Corporation, LLC, Non - Profit, etc.) Government Industry Govemment Reporting Control Group Common Ownership wl multiple FEINs = Single O Single O Multiple EMPLOYEE POPULATION INFORMATION Benefit Eligible Employee Count 1,706 HR SYSTEMS INFORMATION State Zip Code FL 34112 Formed under the laws of which state? FL Security & Hierarchy Structure (i.e. Location Managers) O Decentralized User Access O Central User Access Number of FEINs Total Employee Count (Including PTNariable) 1,962 Turnover Rate .56% Can you pros historical dal reflects empl Payroll Vendors/Versions HRIS status? *See SAP fSTA P O Yes O No Benefits Administration Vendor Time & Attendance Vendor Self Insured/Allegiance Benefit Management -TPA SAP Benefits Plan Year Other HR Systems Calendar Year Inone *For example: If I was a part -time administrator 3 months ago and today I am FT will historical data reflect my true status each Packet Page -1915-