PROFESSIONAL SERVICES AGREEMENTPROFESSIONAL SERVICES AGREEMENT
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is entered into by and between City
of Clearwater, with offices located at 401 Corbett Street, Suite 401, Clearwater, Florida 33756
("Client"), and Evernorth Direct Health, LLC, with offices located at 8888 E. Raintree Drive,
Scottsdale, Arizona 85260 ("Evernorth") and is made effective as of October 1, 2023 ("Effective
Date"). The parties hereto shall each be referred to individually as the "Party" or collectively as
the "Parties." This Agreement supersedes and replaces the Professional Services Agreement
effective October 1, 2015, between the Parties regarding the subject matter herein as of the
Effective Date of this Agreement.
WHEREAS, Evernorth is engaged in the business of offering onsite health centers to employers
and employer-sponsored group health plans, providing certain low acuity, urgent and episodic
health care and ancillary services, for the benefit of Client employees and their dependents; and
WHEREAS, Client owns or leases a facility located 401 Corbett Street, Suite 401, Clearwater,
Florida, 33756 (the "Facility") and desires to provide an onsite health center at the Facility for
the benefit of its employees and their dependents (the "Health Center");
WHEREAS, Client wishes to engage Evernorth to provide, and Evernorth wishes to provide, a
Health Center; and
WHEREAS, Client selected Evernorth based on Request for Proposals ("RFP") #22-23 OnSite
Medical and Prescription Drug Title, and responses by Evernorth to RFP #22-23, all of which are
incorporated by reference and form a basis for this Agreement.
NOW THEREFORE, in consideration of the mutual promises herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as
follows:
1 DEFINITIONS
Capitalized terms used in this Agreement without definition have the meanings ascribed
for them on Exhibit A.
2 SERVICES
2.1 Clinical Services. Commencing on the Effective Date and continuing for the Term,
Evernorth will operate and staff a Health Center at the Facility and provide or arrange for
the provision of the following clinical services ("Clinical Services"), which shall be within
the scope of the licensure and practice of Evernorth Personnel, for the benefit of
Participants (as defined in Section 2.2 below) and shall include:
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2.1.1 Health and Wellness Services. These services will include minor office based
procedures, routine physicals, medical history, and exams.
2.1.2 Low Acuity Urgent Care/Episodic Care Services.
i. Health Center shall provide episodic and acute care visits, with no, or limited,
follow-up. Examples include sprains and strains, sore throats, ear infections,
urinary tract infections and headaches.
ii. Acute care visits include sufficient scheduled time to allow Evernorth
Personnel to perform a full history and exam, lifestyle risk assessments, health
promotion and preventive care discussion when needed and includes care
coordination referrals and community physician referrals as appropriate.
2.1.3 Immunization Services. Evernorth shall provide, or arrange for the provision of,
immunizations, as agreed upon by the Parties, including:
i. Annual flu vaccinations
ii. Hepatitis B Series
iii. Tetanus & Pertussis (Tdap)
iv. Tetanus (Td)
v. Tuberculosis (TB PPD) (Test)
vi. Pneumovax
vii. Shingles
viii. Covid
Cost to purchase immunizations will be included in the monthly invoices. Pediatric
vaccinations are excluded, except for annual flu vaccinations for Pediatric Participants
age two and older.
2.1.4 Monitoring Chronic Conditions. Evernorth Personnel shall:
i. Verify that Participants with chronic medical conditions have appropriate
community primary care provider relationships and collaborate with primary
care provider, as needed.
ii. Refer Participants with chronic conditions to appropriate condition or lifestyle
management programs available to the Client.
iii. Encourage health lifestyle habits that address the chronic condition.
2.1.5 Preventive Health Screenings. Clinic shall provide the following Preventive Health
Screenings:
i. Pre-employment physicals to include vitals, vision testing using eye chart, and
physical exam by a provider. Depending on eligibility, some tests include:
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Audiogram, medical history form, Rapid 5 Panel Drug Test, back screen, and
Spirometry.
ii. Annual physical examinations with extended testing capabilities. Evernorth
also provides skin screening and other skin related procedures.
iii. Pediatric physicals (including well-child exams and "check-ups") are excluded.
2.1.6 Laboratory Services. Evernorth shall conduct the following laboratory testing onsite
at the Health Center:
i. CLIA -waived testing (rapid testing).
ii. Specimen collection, including: blood draw station, urine collection, and
collection of other specimens ordered by Health Center's medical staff or by
community providers for pick up by contracted lab vendor. Results will be
delivered to ordering provider.
2.1.7 Biometric Screening. Evernorth shall provide scheduled screenings that may include
but not limited to: Height, Weight, BMI, Body Composition, Blood Pressure, Total
Cholesterol, HDL Cholesterol, LDL Cholesterol, Coronary Risk Ratio, and Blood
Glucose.
2.1.8 Lifestyle Risk Assessment. Evernorth and Evernorth Personnel shall
i. Conduct lifestyle risk assessments;
ii. Facilitate a discussion of health improvement and preventive care
opportunities;
iii. Provide referrals and coordinate additional care for Participants, as required;
iv. Provide written prescriptions by Health Center Staff, as allowed by law; and
v. Encourage Participant engagement in Client -sponsored wellness programs (if
any) as appropriate.
2.1.9 Pharmacy. Evernorth and Evernorth Personnel shall make available to Participants as
needed:
i. Limited selection of first dose medications to treat acute ailments.
ii. Written prescription and/or e -prescribing by Provider, as allowed by law.
2.1.10 Primary Care. Basic primary care performed in support of Participants' individual
primary care physicians.
2.1.11 Radiology Services. Evernorth shall arrange for the provision of radiology services
("Radiology Services") through a local radiology provider participating in the provider
network of Evernorth's parent company or affiliate and located near the Health
Center. Digital radiology equipment will not be located at the Health Center.
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Radiology Services include Flat Plate, Ultrasound, and CT capabilities to be conducted
by a licensed radiologist. Evernorth shall invoice Client directly for Radiology Services
based on referrals provided to Participants by Clinical Personnel only. Other radiology
referrals, such as referrals for MRIs or other radiologic studies, and any referrals
provided by non -Clinical Personnel are not considered Clinical Services under this
Agreement and must be submitted to the health benefit plan and are subject to prior
authorization review.
2.2 Participants. Participants are individuals who are eligible to receive Clinical Services at the
Health Center in accordance with this Agreement as determined by the Client, including:
2.2.1 Client's full-time and part-time employees covered under the Client's benefit plan;
2.2.2 Spouses and dependents of Client employees age two (2) years and older covered
under the Client's benefit plan;
2.2.3 Client's retired employees covered under the Client's benefit plan covered under
the Client's benefit plan;
2.2.4 Elected officials covered under the Client's benefit plan; and
2.2.5 Former employees entitled to Clinical Services as Participants under the
Consolidated Omnibus Budget Reconciliation Act (COBRA).
2.3 Health Center Management.
2.3.1 Operation and Personnel. Evernorth shall be solely responsible for management of all
Health Center and Health Center -related administrative activities, including Health
Center operations and Evernorth Personnel. Evernorth shall provide all equipment,
materials, systems and supplies necessary to provide the Clinical Services and to
manage the Health Center that are not specifically identified as a Client responsibility
under Section 5, including without limitation, Electronic Health Record (EHR) licenses,
routers, printers, practice management systems or other equipment as mutually
agreed to by the Parties in writing.
2.3.2 Biohazard Waste Management. Evernorth shall be responsible for waste
management and removal of biohazard waste from the Health Center and Facility. All
expenses associated with biohazard waste removal shall be eligible for
reimbursement pursuant to the provisions of Section 7.
2.4 Periodic Reporting. Evernorth will arrange for the production and delivery of reports
("Reports") to Client in accordance with Evernorth's standard reporting package and
capabilities at no additional cost to Client. Such Reports shall include the following:
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2.4.1 Monthly Key Performance Indicators Dashboard. Each month, Evernorth shall
produce and provide to Client a dashboard report of key performance indicators to
include:
i. Clinical Services Activity and Trends
ii. Diagnostic Conditions Treated
iii. Labs Performed
iv. Medications Prescribed
v. Medical Cost Savings
vi. Return on Investment (ROI)
vii. Productivity
viii. Referrals
ix. Patient Satisfaction
2.4.2 Ad Hoc Reports. Client may request other reporting from time to time, not specifically
delineated herein. Evernorth will produce and deliver ad hoc reports in such formats
and timeframes, and at an additional cost, as is mutually agreed upon by the Parties.
2.4.3 Report Privacy. Any and all Reports provided by Evernorth or the Health Center to
Client or its designees concerning the Clinical Services shall be in aggregate, de -
identified form, in compliance with applicable federal and state privacy laws and
regulations, including but not limited to the Privacy and Security Rules of the Health
Insurance Portability and Accountability Act of 1996 (HIPAA), 45 CFR Parts 160 and
164, as amended by the Health Information Technology for Economic and Clinical
Health (HITECH) Act.
2.5 Excluded Services. Neither Facility nor the Health Center is open to the general public.
Evernorth shall not solicit business from the general public at the Health Center nor use
the Health Center to provide services to individuals other than Client Participants.
3 HEALTH CENTER HOURS OF OPERATION
3.1 Days and Hours of Operation. The Health Center will operate fifty (50) hours per week,
Monday through Friday, from 7:00 a.m. until 5:00 p.m. (subject to legally required work
breaks) ("Health Center Operating Hours"). Parties may change Days and Hours of
Operation from time to time, as mutually agreed in writing. Electronic communication is
deemed acceptable for such written agreement.
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3.2 Health Center Closure. The Health Center will be closed on inclement weather days as
determined by Client, and on Evernorth recognized holidays, including: New Year's Day,
Martin Luther King Day, Memorial Day, Independence Day, Labor Day, Thanksgiving, day
after Thanksgiving, and Christmas Day. The Health Center may be closed during Evernorth
Personnel vacancies as further described in Section 15.
4 CHANGES IN SCOPE OR ADDITIONAL SERVICES
4.1 Request. Client may at any time, and from time to time, during the term of the
Agreement, request that Evernorth provide or arrange for the provision of additional
clinical and/or administrative services not covered under this Agreement ("Additional
Services").
4.2 Response. Upon receipt of such a request, Evernorth shall submit a written proposal to
Client for such Additional Services which shall include:
4.2.1 A description of the services, functions, and responsibilities Evernorth anticipates
performing in connection with such Additional Services;
4.2.2 A schedule for commencing and completing such Additional Services;
4.2.3 Evernorth's prospective charges for such Additional Services, including a detailed
breakdown of such charges; and
4.2.4 A description of the human resources necessary to provide the Additional Services.
4.3 Amendment Required. Evernorth shall not begin performing any Additional Services until
Client and Evernorth have entered into a mutually agreed upon written amendment to
the Agreement governing such Additional Services.
5 CLIENT OBLIGATIONS
At its sole cost and expense, unless otherwise indicated herein, Client shall provide or
arrange for the provision of those Client obligations set forth below:
5.1 Health Center Improvements
5.1.1 Signage. Client shall install, affix and maintain at its sole expense signage at the
entrance to the Health Center in a mutually agreed upon form and which, at minimum
shall contain the Health Center name, as the Parties may mutually agree, the Health
Center telephone number, and the hours of operation. Any and all signs shall conform
to all applicable regulations and governmental requirements. Client shall at its sole
expense remove any signs placed on or about the Health Center upon the termination
of this Agreement or any extensions thereof, and repair the effects of any such
removal.
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5.1.2 Common Areas / Access. Evernorth, its invitees and employees and Participants shall
have the right, in common with other occupants of the Facility and their invitees and
employees, to use all stairways, elevators, halls, toilets and sanitary facilities, and all
other general common facilities contained in the Facility, and all sidewalks, delivery
areas, parking facilities and other appurtenances to the Facility. At no additional cost
or expense to Evernorth, Evernorth shall have access to the Health Center three
hundred sixty-five (365) days a year, on a twenty-four (24) hour a day basis.
5.1.3 Repairs and Improvements. Evernorth shall maintain the Health Center in an
attractive and neat condition and shall not permit or allow any waste to any portion
of the Health Center. Client or its agents and employees shall have the right to enter
the Health Center for the purpose of making repairs necessary for the preservation of
the Health Center Facility. Client shall make a reasonable effort to affect such repairs
with a minimum interference to Evernorth, and, when practicable, all work shall be
done outside Health Center Operating Hours.
5.1.4 Access Modifications. If modification to the Health Center is required to comply with
standards imposed by applicable law and regulations, and Client is unwilling to make
such modifications, then Evernorth, at its sole expense, shall have the right (but not
the obligation) to make such modifications to the Health Center, as it deems necessary
or desirable, to permit access by any employee or invitee with disabilities that restrict
such person's ability to otherwise gain access to the Health Center.
5.1.5 Additions or Improvements by Evernorth. With written permission of Client, which
shall not be unreasonably withheld or delayed, Evernorth may make alterations,
additions and improvements ("Alterations") upon the Health Center as desired, with
the right to remove the same upon termination of the Agreement, or any renewal or
extension thereof; provided, however, that (i) as indicated above, Evernorth shall
obtain written approval from Client of the Alterations to be made and written
approval of the added costs to Client; and (ii) the Health Center must be left in as good
a state as when received, reasonable wear and tear and damage by fire or other
casualty excepted. Failure to remove such Alterations shall not be deemed a renewal
or extension under the terms of the Agreement, but shall be deemed an
abandonment of such Alterations, and Evernorth shall incur no costs for the removal
thereof. In addition, any installation of special equipment requiring exceptional
electric service or exceeding the live load rating shall be subject to Client written
approval, which shall not be unreasonably withheld or delayed.
5.2 Health Center Utilities and Services. Client shall, at its sole expense, provide the following
services and utilities necessary to the operation of the Health Center.
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5.2.1 Telephone and Computer System Connections. For each Health Center, Client shall
furnish a telephone system and computer hook-ups necessary for the provision of the
Services.
5.2.2 High Speed Internet Access. For each Health Center, Client shall ensure there are High
Speed Internet services available to the building and extended to the Health Center. A
minimum of 20 Mbps Down / 20 Mbps Up bandwidth to enable the Evernorth
Personnel to access the data tracking documentation and reporting system
throughout the worksite and any other expanded services that require bandwidth. If
no internet service providers have services established to the building or if services
are not adequate to support the Health Center due to stability issues, Client shall:
i. Be responsible for all costs associated with establishing service to the building
and installation of the line, including but not limited to trenching, wiring,
materials and labor charges; or
ii. Provide connectivity to the Client network and supply two (2) Public IP
addresses.
5.2.3 IT Resource for Internet Troubleshooting. Client and Evernorth shall identify IT
resources to work collaboratively to:
i. Coordinate with the internet service provider to resolve issues at the Health
Center;
ii. Acknowledge notice of the issue within one (1) hour; and
iii. Be available within a three (3) hour timeframe after acknowledgement. If
Client IT resources are unable to provide IT assistance within the three (3) hour
timeframe, Client shall be responsible for travel expenses incurred to resolve
the issue.
5.2.4 Utilities, Services and Supplies. Client shall provide the following:
i. adequate heating, ventilation, and air conditioning to maintain conditions and
temperatures appropriate for the operation of the Health Center during
Health Center Operating Hours;
ii. hot and cold running water;
iii. restroom facilities and supplies for use by Evernorth Personnel and
Participants;
iv. electricity adequate for computer systems, lighting, normal office use and
heating and air conditioning;
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v. lighting, and replacement of standard lamps when necessary;
vi. pest control and extermination services in accordance with LEED standards;
vii. cleaning and janitorial services each day the Health Center is open that meet
safety and exposure control requirements of Occupational Safety and Health
Regulations, including those relating to slip/trip/falls, blood borne pathogens
and toxic and hazardous material. Such cleaning and waste removal must be
adequate to minimize or eliminate risk to Evernorth Personnel and
Participants from germs, unsanitary conditions and blood borne pathogens.
Client agrees to require janitorial service to comply with Evernorth
specifications for cleaning;
viii. sufficient elevator service for access to the Health Center, if Health Center is
located other than on the ground floor, with at least one (1) elevator that
operates during non -business hours affording access to the Health Center;
ix. adequate security services for the Health Center and Facility and common
areas around the Facility, including fire and burglar alarm devices and guard
protection. Client shall monitor the burglary alarm, motion and duress alarms
and temperature alarm and shall perform annual inspection and/or testing of
the smoke detectors and fire extinguishers in the Health Center and elsewhere
in the Building. Client shall also provide for the periodic maintenance and
annual inspection of the Facility fire alarm system; and
x. adequate parking spaces for Evernorth Personnel at no charge to Evernorth or
the Evernorth Personnel (as defined herein).
6 TERM AND TERMINATION
6.1 Term. The initial term of this Agreement ("Initial Term") shall commence on the Effective
Date and shall continue for a period of thirty-six (36) months. Client shall have the option
of renewing for two (2) additional three (3) year terms (each a "Renewal Term"). The
Initial Term and any Renewal Terms shall constitute the "Term" of the Agreement. This
subsection is subject to the termination rights set forth elsewhere in this Agreement.
6.2 Client Termination.
6.2.1 For Cause. Client may terminate this Agreement by written notice to Evernorth if
Evernorth materially breaches this Agreement and does not cure such breach to
Client's reasonable satisfaction within sixty (60) calendar days after receiving a written
notice of breach from Client (the "Cure Period"). Client may extend the Cure Period
at any time prior to the end of the expiration of the initial Cure Period by providing
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notice of such extension to Evernorth. Client will notify Evernorth when breach has
been cured to Client's reasonable satisfaction; otherwise the breach shall be deemed
cured at the end of the Cure Period unless Evernorth receives a notice of termination
from Client within ten (10) days after the expiration of the Cure Period notifying
Evernorth of the continued breach and Client's intent to terminate. In such case,
termination shall be effective on the sixty-first (61st) calendar day after receiving the
notice of termination. Client shall remain liable for any unpaid balance for
Implementation Costs and Operational Expenses incurred prior to the date of
termination.
6.2.2 For Convenience. Client may also terminate this Agreement, in its entirety or with
respect to a specific Facility, at any time after the Initial Term by providing ninety (90)
days' written termination notice to Evernorth. Such termination is effective on the
ninety-first (91St) calendar day after the notice is received by Evernorth. When
terminating the Agreement for convenience, Client shall pay a "Severance Fee" to
Evernorth in an amount equal to the actual severance obligation owed by Evernorth
to Evernorth Personnel as of the date such termination of this Agreement is effective.
The Severance Fee will be reduced to the extent that Evernorth can recoup costs by
successfully redeploying Evernorth Personnel to a similar position within Evernorth.
Client shall remain liable for any Operating Expenses incurred prior to the date of
termination.
6.2.3 For Evernorth Financial Instability. If Evernorth becomes insolvent, Client may
terminate this Agreement upon ten (10) days' notice to Evernorth provided that such
termination shall be deemed effective as of the date said notice is delivered.
6.3 Evernorth Termination.
6.3.1 For Cause. Evernorth may terminate this Agreement by written notice to Client if
Client materially breaches this Agreement and does not cure such breach to
Evernorth's reasonable satisfaction within sixty (60) calendar days after receiving a
written notice of breach from Client (the "Cure Period"). Evernorth may extend the
Cure Period at any time prior to the end of the expiration of the initial Cure Period by
providing notice of such extension to Client. Evernorth will notify Client when breach
has been cured to Evernorth's reasonable satisfaction; otherwise the breach shall be
deemed cured at the end of the Cure Period unless Client receives a notice of
termination from Evernorth within ten (10) days after the expiration of the Cure
Period notifying Client of the continued breach and Evernorth's intent to terminate.
In such case, termination shall be effective on the sixty-first (61st) calendar day after
receiving the notice of termination.. Client shall remain liable for any unpaid balance
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for Implementation Costs and Operational Expenses incurred prior to the date of
termination.
6.3.2 For Client Nonpayment. Evernorth may terminate this Agreement if Client has failed
to make payment due under the Agreement. Prior to termination, Evernorth shall give
Client notice of intent to terminate based on non-payment. Termination shall be
effective within thirty (30) days' of receipt of such notice if Client fails to provide the
payment due before the expiration of the thirty (30) day period.
6.3.3 For Convenience. Evernorth may also terminate this Agreement at any time after the
Initial Term by providing ninety (90) days' written termination notice to Client. Such
termination is effective on the ninety-first (919 calendar day after the notice is
received by Client.
6.3.4 For Client Financial Instability. If Client becomes insolvent, Evernorth may terminate
this Agreement upon ten (10) days' notice to Client provided that such termination
shall be deemed effective as of the date said notice is delivered.
6.4 Effects of Termination. In addition to any other rights or remedies Client or Evernorth
may have, if either Party terminates this Agreement for cause, Termination will not
constitute a Party's exclusive remedy for any default, and neither Party will be deemed to
have waived any of its rights accruing hereunder prior to such default.
7 OPERATING EXPENSES, COMPENSATION, REPORTING AND PAYMENTS
7.1 Operational Expenses. Evernorth will use the attached Appendix 1: Operating Budget as
the projected budget for Operational Expenses (Salaries and Benefits, Supplies, Other
Direct Expenses, System Expenses) and Other Infrastructure Costs, estimated
Implementation Costs and Management Fees related to the Health Center Services for
the Initial Term. The Operating Budget may be modified based on any change in the
Health Center Commencement Date, delay in the required Build -Out, or modification of
services requested by the Client, as mutually agreed upon by the Client and the Evernorth.
Evernorth shall use its best efforts to manage all Total Operational Expenses to those
amounts listed in the Operating Budget. Client acknowledges that said Operating Budget
constitutes Evernorth's good faith projection of anticipated operating costs and expenses
for the Health Centers. Client understands and acknowledges that the Operating Budget
may change, based upon the volume of Participants seen at the Health Centers and other
factors, such as a change in Evernorth Personnel with respect to level of professional
licensure or salary.
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7.2 Adjustment to Budget.
7.2.1 Additional Resources. In the event that Client requests permanent additional clinical
and/or administrative personnel to provide the Services at the Health Center or other
services, the cost of which will exceed the estimates set forth in the Appendix 1:
Operating Budget, Client shall pay to Evernorth, in addition to all Management Fees
and Operational Expenses, an amount equal to the additional expenses incurred in
connection with the additional Services ("Additional Resource Charges").
7.2.2 Temporary Resources. If Clinical Personnel take Paid Time Off or Leave (as described
in Section 15) or there is otherwise an inability to provide Services that is to be
expected to be in excess of ten (10) business days ("Vacancy"), Evernorth will inform
Client of such Vacancy, and will determine in consultation with Client if the position
will be temporarily staffed. In the event that Client elects to have such position filled
on a temporary basis, Client shall so notify Evernorth in writing. Evernorth shall use
best efforts to secure the temporary labor requested to fill Vacancy. Client shall
remain responsible for the payment of the costs for the Evernorth Personnel that has
taken PTO or Leave in addition to paying for any additional temporary resources
requested by Client.
7.2.3 Payment. Client shall pay and reimburse Evernorth for the following as listed in the
Appendix 1: Operating Budget:
i. Total Operational Expenses (Salaries and Benefits, Supplies, Other Direct
Expenses, Systems Expenses);
ii. Infrastructure Costs;
iii. Implementation Costs; and
iv. Management Fees.
In addition, Client shall reimburse Evernorth for Additional Resource Charges
incurred under this Scope of Services. Payments shall be sent to: Evernorth Direct
Health, LLC, PO Box 847217, Los Angeles, CA 90084-7217.
7.2.4 Invoicing Procedures. On or before the 20th day of each month, Evernorth will issue
to Client an invoice for Fees, Operational Expenses, Implementation Costs and
Additional Resource Charges (collectively, "Health Center Fees") due and owing for
Health Center Services performed during the preceding month. Client shall pay
Evernorth within thirty (30) days of receipt of an invoice for Health Center Fees.
Invoice charges for supplies shall reflect actual amounts billed to Evernorth from the
supply manufacturer/vendor and shall not be adjusted for any rebate Evernorth may
receive from an affiliated Group Purchasing Organization.
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7.2.5 Renewal Terms. Sixty (60) days prior to the expiration of the Initial Term of the
Agreement, Evernorth shall present to Client a proposed Operating Budget for the
Health Center for any Renewal Term, and Client and Evernorth shall mutually agree
on such Operating Budget. Thereafter during any Renewal Term of the Agreement,
sixty (60) days prior to the expiration of the Renewal Term, Evernorth shall present to
Client a proposed Operating Budget for the Health Center for the upcoming Renewal
Term, and Client and Evernorth shall mutually agree on such Operating Budget.
8 REPORTING, BOOKS, AND RECORDS
8.1 Maintenance of Records. Evernorth shall keep, maintain and preserve, in Evernorth's
principal place of business or at such other secure locations as may be determined by
Evernorth, during the Term and for at least three (3) years following termination or
expiration of the Term, complete and accurate records and accounts covering all
transactions relating to this Agreement. All such records and accounts shall be maintained
in accordance with generally accepted accounting principles consistently applied.
8.2 Notice of Audit, Audit Limitations. At any time during the Term and up to three (3)
calendar years following the expiration or termination of this Agreement, Client or its
designee shall have the right, upon forty-five (45) days prior written notice to Evernorth,
to audit all documents and records related to the Operational Expenses of the Health
Center, with the exception of certain administrative and medical supplies and equipment
where prohibited by confidentiality provisions in the applicable vendor agreement with
Evernorth or its Affiliate, for the purchase of such administrative and medical supplies
and equipment. Such audits shall be limited to one (1) every twelve (12) months, and shall
be conducted during normal business hours, at Evernorth's office or at mutually
agreeable locations. Notwithstanding the above, Client shall have no obligation to
perform such audit. If not otherwise subject to confidentiality provisions set forth in this
Agreement, Client shall be required to sign a confidentiality agreement as mutually
agreed upon by the Parties. Designees or representatives of Client shall be required to
execute a confidentiality agreement mutually agreed upon by the Parties. Such audits
shall not include the disclosure of Protected Health Information (PHI) as defined in HIPAA,
or the disclosure of employee records or other confidential or commercially sensitive,
trade secret information. Client will promptly provide Evernorth with a copy of any audit
reports, findings and summaries.
8.3 Contest of Audit. Auditor shall provide Evernorth with a copy of the audit results for
Evernorth's review and opportunity to comment before auditor shares the results with
the Client. Evernorth shall, at its sole expense, have the right to contest the results of any
audit conducted by Client, and in such event, a second audit shall be conducted by an
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independent certified public accountant acceptable to both Parties. The results of this
second audit shall be binding upon the Parties hereto.
9 NOTICES
9.1 All notices, demands, and other communications under this Agreement shall be in writing
to the address below, with a copy to the emails provided and shall be deemed received
on the date confirmed on: (i) the return receipt for certified mail sent return receipt
requested, via the USPS; or (ii) the receipt for notices sent by a reliable overnight courier.
If to Evernorth:
Jeffrey Perry, DBA, PhD
Chief Operating Officer, Vice President
Evernorth Direct Health, LLC
8888 E. Raintree Drive, Suite 300
Scottsdale, Arizona 85260
With an Email Copy to Evernorth:
Jeffrev.Perrv@evernorth.com
If to Client:
Billie Kirkpatrick
City of Clearwater
Human Resources Director
100 South Myrtle Avenue
Clearwater, Florida 33756-5320
With an Email Copy to Cigna Legal:
Molly.Phillips@Cigna.com
9.2 Either Party may change the address for notification purposes upon prior and reasonable
written notice thereof to the other.
9.3 Invoices shall be sent to the Client at the address indicated above. Payments shall be
made in accordance with Section 7.2.
10 OWNERSHIP
10.1 Client -Owned Property. Except as noted in Section 10.2, Client is and shall be the sole
and exclusive owner of all right, title and interest in and all materials furnished by Client,
and all furniture, supplies, equipment and other contents of the Health Center ("Health
Center Contents") that Evernorth or its Affiliate has purchased or may during the term of
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the Agreement purchase on behalf of Client, and Health Center marketing materials
created, developed or otherwise submitted by Evernorth and parties engaged by
Evernorth, whether directly or indirectly, in connection with rendering Services under this
Agreement. Deliverables created specifically for Client pursuant to this Agreement
become the property of Client. Deliverables shall not include Evernorth Equipment or
Evernorth Materials, as hereinafter defined. Notwithstanding this, Client agrees that it
will not take ownership of any medication upon termination; Evernorth shall take any
required actions to dispose of medications. If Evernorth is able to return any medication
to the manufacturer or distributor for a full or partial refund, Evernorth shall attempt to
do so and obtain a credit for Client. Client also acknowledges that some of the Health
Center Contents may constitute medical or other devices that, if used inappropriately or
by an untrained or unlicensed person, could cause harm or injury. Client agrees to take
the appropriate measures to ensure that such Health Center Contents are either properly
disposed of, or only used by the appropriate medical professionals.
10.2 Evernorth Equipment. Client acknowledges that Evernorth has purchased and shall be
the owner of the following equipment ("Evernorth Equipment"), and Evernorth shall be
entitled to retain ownership and possession of all such Evernorth Equipment after
expiration or termination of this Agreement for whatever reason:
i. Computer CPUs
ii. Monitors
iii. Keyboards
iv. Computer Mice
v. Laptops
vi. VPN Token Keys
vii. Air Cards
viii. Scanners
ix. Multi -Functional Printers
x. Access Boxes (Label Printer/Network Connectors)
xi. Routers
xii. Credit Card Machines
xiii. iPads
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10.3 Evernorth Materials.
10.3.1 Program Materials. All Evernorth program materials, including handouts,
presentations, and workbooks (collectively, "Evernorth Program Materials"), are the
sole and exclusive property of Evernorth. Any Evernorth Program Materials
distributed to program Participants may be used solely for the purpose of participating
in the applicable Evernorth program. Client shall not alter, republish, redistribute,
record or rebroadcast Evernorth Program Materials, including posting on the internet,
without Evernorth's prior written consent.
10.3.2 Proprietary Materials. Client acknowledges that in providing the services hereunder,
Evernorth may utilize proprietary materials, reports, models, software,
documentation, know-how and processes owned by Evernorth that were or are not
created specifically by Evernorth for Client ("Evernorth Materials"). Client
acknowledges that ownership of and title to such Evernorth Materials remains with
Evernorth and is not transferred to Client.
10.4 Use of Name and Trademarks, Publicity
10.4.1 Client's Marks. Except as expressly provided in the Agreement, no property, license,
permission or interest of any kind in or use of any trademark, copyright, patent,
trade secret, logo, trade name, color combination, insignia or device owned or used
by Client is or is intended to be given or transferred or acquired by Evernorth or any
other party by the execution, performance or non-performance of this Agreement
or any part thereof. Evernorth agrees that it shall not use (directly or indirectly) or
register any of Client's trademarks, service marks or trade names in connection with
any products, services, promotions or publications without Client's prior written
approval. Evernorth shall not remove or alter any trademark, service mark, trade
name, copyright or other proprietary notices, legends, symbols or labels appearing
on or in materials delivered to Evernorth by Client without Client's prior written
approval.
10.4.2 Evernorth's Mark. Except as expressly provided in the Agreement, no property,
license, permission or interest of any kind in or use of any trademark, copyright,
patent, trade secret, logo, trade name, color combination, insignia or device owned
or used by Evernorth is or is intended to be given or transferred or acquired by Client
or any other party by the execution, performance or non-performance of this
Agreement or any part thereof. Client agrees that it shall not use (directly or
indirectly) or register any of Evernorth's trademarks, service marks or trade names
in connection with any products, services, promotions or publications without
Evernorth's prior written approval. Client shall not remove or alter any trademark,
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service mark, trade name, copyright or other proprietary notices, legends, symbols
or labels appearing on or in materials delivered to Client by Evernorth without
Evernorth's prior written approval.
11 EVERNORTH GENERAL WARRANTIES
11.1 General Warranties. Evernorth hereby represents and warrants to Client, with the
intention that Client rely thereon in entering into this Agreement, that:
11.1.1 Evernorth has the full right and authority to enter into and perform this Agreement
and vest in Client all the rights set forth in this Agreement;
11.1.2 Evernorth Personnel have all the necessary professional licenses to perform the
Services in connection with this Agreement;
11.1.3 Evernorth agrees that it and Evernorth Personnel will perform the Health Center
Management and Clinical Services in a good, professional, and workmanlike
manner, using that degree of skill and care as would a prudent supplier performing
similar services under similar circumstances and in compliance with all applicable
laws and regulations;
11.1.4 Evernorth shall comply fully, and shall require its Personnel to comply fully, with all
federal, state and local laws, regulations, ordinances, codes and other legal
provisions applicable to it and its Personnel in the performance of its obligations
hereunder, including but not limited to those relating to HIPAA, workers
compensation, Social Security, unemployment insurance, hours of labor, wages,
working conditions and other employer-employee matters with respect to
Evernorth Personnel; and
11.1.5 Evernorth Personnel will exercise their own independent medical and professional
judgment in the performance of Clinical Services, and Client will have no
responsibility to direct or control Personnel's independent medical acts, decisions
or judgment in the care of any Participant.
12 CLIENT GENERAL WARRANTIES
12.1 General Warranties. Client hereby represents and warrants to Evernorth, with the
intention that Evernorth rely thereon in entering into this Agreement, that:
12.1.1 Client has the full right and authority to enter into and perform this Agreement and
vest in Evernorth all the rights set forth in this Agreement;
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12.1.2 the execution and performance by Client of this Agreement (including, without
limitation, the Services) does not and will not violate or conflict with, or result in a
breach of (i) any terms, conditions, duties or obligation to which Client is bound to
any third party or (ii) any rights of any third party;
12.1.3 any materials and elements delivered or provided to Evernorth in connection with
this Agreement and their use by Evernorth, will not defame any person or violate or
infringe the copyright, trademark, patent, trade secret, privacy, reputation, creative
or other rights of any person or entity;
12.1.4 the execution, delivery or performance of this Agreement will not require any
license to use the intellectual property of a third party, other than any licenses
currently held by a Party with the good faith belief that the licenses will endure or
are renewable; and
12.1.5 Client shall comply fully with all federal, state and local laws, regulations,
ordinances, codes and other legal provisions that may be applicable to its
obligations hereunder.
13 CONFIDENTIAL INFORMATION
13.1 Protection of Confidential Information. During the Term of the Agreement, one Party
("Receiving Party") may receive access from the other Party ("Disclosing Party") to certain
proprietary procedures, proprietary data, proprietary information, documents, and other
material belonging to, prepared by or for, or concerning the Disclosing Party and its
affiliates which shall, together with the terms and conditions hereof, be deemed to be
"Confidential Information." For purposes of this Agreement, "Confidential Information"
shall mean (i) information, whether provided directly or indirectly from the other Party in
writing, verbally, by electronic or other data transmission or in any other form or media
or obtain through on-site visits at Client or Evernorth facilities and whether furnished or
made available before or after the Effective Date of this Agreement, that is confidential,
proprietary or otherwise not generally available to the public; and (ii) any and all technical
and business information that the Disclosing Party discloses or reveals to the Receiving
Party, including but not limited to services, plans, products, policies, financial information;
operation information including computer software programs, and shall include all
summaries, extracts, copies, compilations, analyses, interpretations, presentations, and
other materials derived therefrom. The term "Confidential Information" shall not include
information which (i) at the time of disclosure to the Receiving Party was publicly available
or thereafter becomes publicly available through no fault of the Receiving Party; (ii) is
disclosed by the Disclosing Party to a third party without a nondisclosure obligation; (iii)
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is already rightfully in the Receiving Party's possession or is rightfully received by the
Receiving Party as evidenced by independent documentation; (iv) is required to be
disclosed pursuant to Florida public records law. Neither Party shall attempt to access
information not necessary for its performance hereunder.
13.2 Permitted Disclosure. The Receiving Party may disclose the Confidential Information of
the Disclosing Party to the Receiving Party's Personnel if they have a need to know and
obligation to protect the Confidential Information that is at least as restrictive as this
Agreement. The Receiving Party will use the Confidential Information of the Disclosing
Party only to the extent as is necessary in and during the performance of this Agreement,
and as expressly allowed hereunder, and will be responsible for any improper use or
disclosure of any Confidential Information by its officers, partners, principals, Personnel
or independent contractors (including individuals who become former partners,
principals, employees, agents or independent contractors).
13.3 Required Disclosure. If at any time the Receiving Party is requested or required as a result
of a judicial or regulatory proceeding disclose any Confidential Information, the Receiving
Party agrees to provide the Disclosing Party with prompt notice thereof so that the
Disclosing Party may seek an appropriate protective order. If the Receiving Party is
compelled by a judiciary or regulatory authority to disclose Confidential Information or
else stand liable for contempt or suffer other censure, sanction or penalty, the Receiving
Party may disclose such information to the extent required without liability hereunder.
13.4 Receiving Party Obligations. The Receiving Party agrees that until such time as any such
Confidential Information becomes a part of the public domain without breach of this
Agreement by the Receiving Party or an agent or employee of the Receiving Party the
Receiving Party shall:
13.4.1 treat, and obligate the Receiving Party's employees, agents and representatives to
treat as secret and confidential all such Confidential Information whether or not it
be identified by the Disclosing Party as confidential;
13.4.2 not disclose any such Confidential Information to any person, firm, or corporation
or use it in any manner whatsoever without first obtaining the Disclosing Party's
written approval;
13.4.3 to reveal the Confidential Information only to those employees, agents and
representatives of the Receiving Party who require access to such Confidential
Information in order to perform the Receiving Party's obligations under this
Agreement; and
13.4.4 not to employ the Confidential Information to Receiving Party's advantage, other
than as herein provided.
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13.5 Third Party Information. Neither Party shall disclose to the other any proprietary
information obtained on a confidential basis from any third party unless (i) the Party
receiving such information shall have first received written permission from such third
party to disclose such information or (ii) such information is in the public domain at the
time of disclosure.
13.6 Injunction. The Parties acknowledge that the unauthorized disclosure of Confidential
Information to any third party would immediately and irreparably injure the Disclosing
Party and entitle the Disclosing Party to an immediate injunction or other equitable relief
against the Receiving Party.
13.7 Return of Confidential Information. Unless a Receiving Party is expressly authorized by
this Agreement to retain the Confidential Information of a Disclosing Party, the Receiving
Party will promptly return or destroy, at the Disclosing Party's option, their Confidential
Information, and all copies thereof, within five (5) Business Days after the Disclosing
Party's written request, and will certify to the Disclosing Party that it no longer has in its
possession or under its control any Confidential Information in any form, or any copy
thereof. Notwithstanding the foregoing, subject to the terms and confidentiality
obligations of this Agreement the Receiving Party and its Representatives (i) may to the
extent required by applicable law, governmental authority or legal process maintain one
confidential copy of the Confidential Information and (ii) shall not be required to erase,
destroy or return any automatically created archival or backup copies residing on
computer systems or other electronic forms of information retention processes, materials
or equipment and accessible only to authorized IT administrative personnel.
14 PERSONNEL
14.1 Evernorth Staffing. Evernorth shall recruit, interview, engage, hire, supervise and
discharge all Evernorth Personnel needed to provide the Clinical Services. All
employment related decisions, including but not limited to hiring, firing, and performance
management, shall be at the sole discretion of Evernorth and not Client. Such Evernorth
Personnel shall in all events, and for all purposes, be employees or subcontractors of
Evernorth and not Client. Evernorth shall comply with all federal, state and local laws
regulations and requirements relating to such employees and subcontractors. Evernorth,
and not Client, shall be fully responsible for the payment of all salaries, wages, payroll and
other compensation, taxes, fees, workers compensation insurance and other charges or
insurance levied or required by any federal, state, or local law, regulation or ordinance
relating to the employment of the Evernorth Personnel, and all supervision and decisions
with respect to all employment-related issues, including but not limited to management
of meal periods, breaks, overtime, and other related issues to comply with applicable
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laws. Evernorth, and not Client, shall be solely responsible for determining salaries,
bonuses, and other compensation of Evernorth employees and subcontractors.
14.2 Background Checks. The Parties acknowledge and agree that the policies and procedures
of Evernorth as to pre-employment testing, criminal background checks, Social Security
Number and 1-9 verification, performance management, disciplinary action and
termination shall govern all Evernorth Personnel, including any confidentiality
requirements contained therein.
14.3 Training. Evernorth will ensure that Evernorth Personnel receive all necessary and
requisite statutorily mandated in-service, annual and proficiency training, and other such
professional or paraprofessional education and training programs needed to ensure
current proficiency in the Evernorth Personnel's particular health care discipline or
specialty.
14.4 Use of Subcontractors. Evernorth may use third party vendors contracted with Evernorth,
its Affiliates, for supplies and equipment without Client's prior written consent, e.g.
pharmacy providers, temporary labor, and laboratory service providers.
14.5 Evernorth Personnel Performance. In the event that Client is dissatisfied with the
performance of any Evernorth Personnel providing Clinical Services hereunder, or asserts
that any Evernorth Personnel has engaged in misconduct as defined by Client or has
materially failed to perform the Services in accordance with the Agreement, Client shall
so advise Evernorth immediately and provide in writing the facts necessary to validate the
concern or complaint. Evernorth shall promptly consult with Client as to the nature of the
conduct complained of and the severity of Client's dissatisfaction, and shall endeavor to
resolve such issues to the satisfaction of Client provided such resolution is non-
discriminatory and otherwise legal. Client acknowledges and agrees that the policies and
procedures of Evernorth or its Affiliates as to the performance shall govern, including any
confidentiality requirements contained therein. Client agrees, where necessary, to
cooperate with Evernorth in conducting any investigation or inquiry, and in providing
documentation and testimonial support in event of litigation concerning Evernorth
Personnel misconduct or failure to perform.
14.6 Independent Contractors. The Parties are independent contractors, and no Party is or
shall represent itself as having, and nothing in this Agreement shall be construed as
creating between the Parties, a relationship as employer-employee, partners, principal -
agent, joint ventures, or any relationship other than that of independent parties.
14.7 Provision of Services at Health Center. Clinical Services may only be provided by
Evernorth Personnel or any other professional provided by or arranged for through
Evernorth. Client employees and contractors shall not be allowed to provide Clinical
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Services or any other health care services at the Health Center even if they are licensed
to do so.
14.8 No Co -Employment. All Evernorth Personnel performing Services hereunder shall work
under Evernorth's supervision, provided, however, that the Clinical Personnel shall
exercise independent professional judgment within the scope of his or her profession,
and in addition a nurse practitioner or a physician assistant shall be subject to oversight
by an independently contracted physician for clinical consultation and oversight as
required by law based upon protocol determined between such nurse practitioner or
physician assistant and physician.
14.9 No Fringe Benefits. As an independent contractor, neither Evernorth nor Evernorth
Personnel shall be entitled to any of the customary employee fringe benefits provided by
Client to its employees, including, but not limited to, pension or group insurance plans,
by virtue of the Services provided to Client under this Agreement.
15 HEALTH CENTER STAFFING
15.1 Staffing.
15.1.1 Evernorth shall provide or arrange for the provision of the following clinical and
administrative staff ("Evernorth Personnel") to provide Health Center Services at the
Health Center:
a. One (1) Full -Time Physician ("Clinical Personnel")
b. One (1) Full -Time Nurse Practitioner or Physician Assistant ("Clinical
Personnel")
c. Three (3) Full -Time Medical Assistants (with one being front office staff)
d. One (1) Full -Time Nurse Manager
15.1.2 Full -Time is defined as regularly working a forty (40) hour week.
15.1.3 Client acknowledges and agrees that, in addition to Evernorth Holidays, as defined in
Section 3.2, Evernorth Personnel shall be entitled to paid time off ("PTO") and other
leave ("Leave") in accordance with applicable law and policies of Evernorth or its
Affiliates, or applicable contract between Evernorth Personnel and Evernorth. PTO
and Leave shall include:
i. vacation days (including purchased days off)
ii. personal days
iii. sick days
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iv. military leave
v. family medical leave (FMLA)
vi. caregiver leave
vii. disability leave; and
viii. other leave in accordance with applicable law or Evernorth policy.
15.1.4 Nurse Practitioners and Physician Assistants may be entitled to up to five (5) days
per year to complete continuing education requirements.
15.1.5 For Evernorth Personnel employed by Evernorth, the number of days of PTO is the
same applicable to all employees of Evernorth and its Affiliates but may vary based
on the job level and number of years of employment with Evernorth, and will be
prorated for part-time work status.
15.1.6 For Evernorth Personnel not employed by Evernorth, i.e., independent contractors,
the number of days of PTO shall be defined in the contract between Evernorth and
applicable agency or individual.
15.1.7 When the Nurse Practitioner or Physician Assistant takes PTO, the Health Center
shall be closed for treatment purposes (and only open for administrative purposes
to the extent a Medical Assistant is available to work). Evernorth shall, however,
request that the Nurse Practitioner or Physician Assistant give Evernorth five days'
advance notice of any planned PTO where possible, so that Evernorth can share with
Client in advance of any expected suspension of treatment services due to planned
PTO by the Nurse Practitioner or Physician Assistant.
15.1.8 In the event that Evernorth Personnel will be absent for an extended period due to
military leave, FMLA, or long term disability leave, Evernorth shall use its best efforts
to recruit and engage a qualified temporary substitute. In the event that Evernorth
is unable to provide such qualified substitute, Evernorth shall provide a pro -rated
adjustment to the Fees.
15.1.9 Evernorth shall not reduce the Compensation/Fees set forth in Appendix 1:
Operating Budget for any absence of Evernorth Personnel due to the following:
i. PTO;
ii. sick time not considered as short term disability under the then current
Evernorth policies;
iii. closure of the Client's work site(s) within which the Evernorth Personnel
provides services under this Agreement, due to Client or other reasons
beyond Evernorth's control, such as inclement weather, acts of nature,
pandemic, or acts of the public enemy; and
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iv. Short term disability or caregiver leave for which the Evernorth Personnel is
paid.
16 NON -SOLICITATION
16.1 During the term of this Agreement, and for a period of one (1) year after expiration or
termination of this Agreement for any reason, Client shall not directly or indirectly, alone
or in concert with others, solicit or entice an employee or independent contractor
engaged by Evernorth to provide services under this Agreement, to leave the
employment or engagement of Evernorth in order to provide substantially similar services
as those provided in this Agreement, to or on behalf of Client, or to otherwise work in
competition with Evernorth. Should there be a termination of this Agreement and Client
desires to have an Evernorth Personnel work for Client or another health center vendor
or otherwise serve in a similar capacity to benefit Client within one (1) year following
termination of this Agreement, Client agrees that it shall reimburse Evernorth all
severance costs Evernorth has paid to any and all Evernorth Personnel resulting from a
termination of this Agreement.
17 INDEMNIFICATION
17.1 Evernorth Indemnification. Evernorth, its successors and assigns, assumes liability for,
and shall indemnify, defend, protect, and hold Client and its officers, directors,
employees, and agents and Affiliates (each, a "Client Indemnitee") harmless from and
against any and all claims, actions, suits, proceedings, costs, liabilities, judgments,
obligations, losses, penalties, damages and expenses, including reasonable legal fees and
expenses, of whatsoever kind or nature: (i) to the extent caused in whole or in part by
Evernorth's own negligent acts or omissions in connection with its performance under
this Agreement; (ii) arising out of Evernorth's intentional misconduct in connection with
its performance under this Agreement; or (iii) arising out of any violation by Evernorth of
any law pertaining to the Services.
17.2 Client Indemnification. Client, its successors and assigns, assumes liability for, and shall
indemnify and hold Evernorth and its officers, directors, employees, agents and Affiliates
(each, a "Evernorth Indemnitee") harmless from and against any and all claims, actions,
suits, proceedings, costs, liabilities, judgments, obligations, losses, penalties, damages
and expenses, including reasonable legal fees and expenses, of whatsoever kind or nature
to the extent caused in whole or in part by Client's own negligent acts or omissions,
directly or indirectly arising out of or in connection with this Agreement. Nothing
contained herein shall be construed to be a waiver of any immunity or limitation of
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liability Client may be entitled under the doctrine of sovereign immunity or Section
768.28, Florida Statutes.
17.3 Notice of Claims. Each Party will give notice as promptly as practicable to the other Party
of any third -party claims for which it is obligated to provide indemnification. Each Party
shall cooperate in all reasonable respects with the other Party and its attorneys in the
investigation, trial and defense of such claim and any appeal arising therefrom.
17.4 Limitation of Liability. Notwithstanding any other provision in the Agreement, in no event
will either Party be liable to the other Party hereto, in contract, tort or otherwise be liable
for, nor will the measure of damages include: (i) any indirect, incidental, special or
consequential damages (including lost revenue, profits or savings) arising out of or
relating to its performance under this Agreement; or (ii) punitive damages.
18 INSURANCE
18.1 Evernorth will maintain at its own cost all necessary insurance (which shall include as a
minimum, the requirements set forth below), for damages caused or contributed to, by
Evernorth and insuring Evernorth against third party claims arising out of or resulting from
activities or services performed by Evernorth during the Term of this Agreement:
18.1.1 Statutory worker's compensation for Evernorth Personnel in accordance with
applicable laws.
18.1.2 Employer's Liability insurance in an amount of not less than Five Hundred Thousand
Dollars ($500,000.00) each accident, each employee, and policy limit.
18.1.3 Commercial General Liability insurance insuring against claims for bodily injury,
property damage, completed operations and contractual liability with a limit of One
Million Dollars ($1,000,000.00) per occurrence and Two Million Dollars
($2,000,000.00) in the annual aggregate.
18.1.4 Automobile liability insurance covering all vehicles owned, non -owned, hired and
leased only when utilized in the performance of Services under this Agreement, with
a combined single limit for bodily injury and property damage of not less than One
Million Dollars ($1,000,000.00).
18.1.5 Managed Care Errors and Omissions insurance in an amount of not less than One
Million Dollars ($1,000,000) in the aggregate.
18.1.6 Medical Professional Liability insurance in the amount of One Million Dollars
($1,000,000) per claim, Three Million Dollars ($3,000,000) in the aggregate.
18.2 Client's Property and Liability Insurance. Client agrees and acknowledges Client is the
owner or lessee of the Facility and owner all of Health Center Contents other than
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Evernorth Equipment (as defined in Section 10). During the Term of this Agreement, Client
shall be solely responsible for maintaining property and casualty insurance coverage
insuring against the loss or damage of the Facility and the Health Center Contents. Cover
for the Health Center Contents shall be in an amount not less than full replacement cost
of such Health Center Contents. In addition, such property and casualty insurance shall
cover Evernorth Equipment to the extent that any loss or damage to such Evernorth
Equipment is not due to the negligent acts or omissions or intentional misconduct of
Evernorth or Evernorth Personnel, and shall be in an amount not less than the full
replacement cost of the Evernorth Equipment. Further, Client may, at its option, purchase
and maintain its own liability insurance and, at its option, may purchase and maintain
such insurance as will protect itself against claims which may arise from operations under
the Agreement.
19 GOVERNING LAW; DISPUTE RESOLUTION
19.1 The terms of this Agreement, including attachments and exhibits, and all matters relating
to these services, shall be governed by, and construed in accordance with, the substantive
laws of the state of Florida and federal law, as applicable.
19.2 Parties agree that they shall meet and confer in good faith to resolve any problems or
disputes that may arise under this Agreement. Such negotiation shall be a condition
precedent to the filing of any arbitration demand by either Party. Any controversy,
dispute or claim arising out of or relating to this Agreement, including its performance or
breach, and including any question regarding its interpretation, existence, validity or
termination, that cannot be resolved informally, shall be resolved by way of binding
arbitration.
19.3 The arbitration shall be administered by the American Arbitration Association ("AAA")
and conducted in Clearwater, Florida or such other location as may be agreed to by the
Parties, in accordance with the Commercial AAA rules, as they are in effect when the
arbitration is filed. The binding arbitration shall be conducted by a single, neutral
arbitrator knowledgeable in the health care or insurance industries or a retired judicial
officer. If the Parties are unable to agree on the choice of the arbitrator, an arbitrator
shall be appointed in accordance with the AAA rules. Any such dispute will not be
resolved by a lawsuit or resort to court process, except as the Federal Arbitration Act
provides for judicial review of arbitration proceedings. Arbitration under this provision
will take place on an individual basis; class arbitrations and class actions are not
permitted. The Federal Arbitration Act, 9 U.S.C. Sections 1-16, shall also apply to the
arbitration. Civil discovery may be taken in such arbitration as provided by Florida law
and civil procedure. The arbitrator shall have the power to control the timing, scope, and
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manner of the taking of discovery and shall have the power to enforce the Parties'
respective duties concerning discovery. The arbitrator shall have the power to grant all
legal remedies and award damages as provided by state and/or applicable federal law
except that punitive damages shall not be awarded.
19.4 The Parties agree to be bound by the decision of the arbitrator. The Parties further agree
that each Party shall share in the costs and fees of the arbitrator and arbitration
administration fees charged by AAA, but each Party shall be responsible for their own
attorneys' fees, costs and expenses.
19.5 The arbitrator shall prepare in writing an award that indicates the prevailing Party or
Parties, the amount and other relevant terms of the award, and that includes the legal
and factual reasons for the decision. The requirement of binding arbitration shall not
preclude either Party from seeking a temporary restraining order or preliminary
injunction or other provisional remedies from a court of competent jurisdiction in
Arizona; however, any and all other claims or causes of action, including, but not limited
to, those seeking damages, shall be subject to binding arbitration as provided herein.
20 ASSIGNMENT AND DELEGATION OF DUTIES
Neither Party may assign their duties, rights, or interests under this Agreement unless the
other Party shall so approve by written consent, provided however, that Evernorth may
at its sole discretion assign its duties, rights and interest under this Agreement in whole
or in part to a subsidiary or Affiliate or may delegate any and all of its duties in the ordinary
course of business to a subsidiary or Affiliate.
21 BINDING EFFECT
This Agreement shall inure to the benefit of and bind the respective successors and
assigns of the Parties hereto.
22 TAXES
22.1 Evernorth will be responsible for any applicable sales, use, or other like taxes (hereinafter,
"tax" or "taxes") attributable to periods on or after the agreement date based upon or
measured by Evernorth's fees for performing or furnishing the services. To the extent
Evernorth is required to collect such taxes under applicable law, Evernorth will separately
state the amount of tax due on its invoices to Client.
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23 FORCE MAJEURE
23.1 Default. Neither Party will be in default or otherwise liable for any delay or failure of its
performance under this Agreement to the extent such delay or failure is due to causes
beyond the reasonable control of said Party such as, but not limited to, acts of God, acts
of public enemy, the elements, adverse weather conditions, fire, floods, riots, strikes,
accidents, disease, pandemic, war, governmental requirement, order or shutdown, act of
civil or military authority, manufacturer delays, labor or transportation difficulties, acts or
omissions of transportation common carriers, or other cause beyond the reasonable
control and without the fault or negligence of the affected Party ("Force Majeure Event").
Additionally, Client understands that in the event of a Force Majeure Event, Evernorth's
ability to perform in part or in total may be limited to the extent required by Evernorth
HR minimal standards policies for the protection of Evernorth employees.
23.2 Contingency Planning. If Client requests that Evernorth implement contingency plans or
actions to prevent, circumvent or cure the adverse effect of a Force Majeure Event, Client
shall be responsible for reimbursing Evernorth for the cost of their implementation during
a Force Majeure Event.
24 SURVIVAL
The terms of Sections 6, Term and Termination; 7 Operating Expenses, Compensation,
Reporting, and Payments; 9, Notices; 10, Ownership; 11, Evernorth General Warranties;
12, Client General Warranties; 13, Confidential Information; 16, Non -Solicitation; 17,
Indemnification; 18, Insurance; 19, Governing Law; Dispute Resolution; 21, Binding Effect;
22, Taxes; 24, Survival; and 25.7, Third Party Beneficiaries shall survive termination or
expiration of this Agreement.
25 MISCELLANEOUS
25.1 Contract Interpretation, Captions, Section Numbers. Article, section and paragraph
numbers and captions are provided for convenience of reference and do not constitute a
part of this Agreement. Any reference to a particular Section of the Agreement will be
deemed to include reference to any and all subsections thereof.
25.2 Exhibits. All exhibits and schedules referred to or attached to this Agreement and all
appendices thereto are integral parts of the Agreement as if fully set forth herein. All
capitalized terms used in such exhibits and schedules and all appendices thereto shall be
as defined in this Agreement, unless otherwise indicated in the exhibit schedule or
appendix.
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25.3 Neither Party Deemed Drafter. Despite the possibility that one Party or its
representatives may have prepared the initial draft of this Agreement or any provision or
played a greater role in the preparation of subsequent drafts, the Parties agree that
neither of them will be deemed the drafter of this Agreement and that, in construing this
Agreement, no provision hereof will be construed in favor of one Party on the ground that
such provision was drafted by the other.
25.4 Counterparts. This Agreement may be executed in multiple counterparts, each of which
will be deemed an original and all of which together will be deemed the same agreement.
25.5 Entire Agreement; Order of Precedence. This Agreement, the Exhibits, Schedules,
Attachments, and all documents expressly referred to in this Agreement, contains the
entire understanding between the Parties with respect to the subject matter of this
Agreement, and all prior or contemporaneous promises, representations, agreements or
understandings are expressly merged herein and superseded hereby. The persons signing
this Agreement personally warrant that they are authorized to sign the Agreement on
behalf of, and to bind, the Party whom they represent in so signing.
25.6 Severability. If any provision of this Agreement or its applications to particular
circumstances is determined by a court of competent jurisdiction to be invalid or
unenforceable, that provision (or its application to those circumstances) will be deemed
stricken and the remainder of this Agreement (and the application of that provision to
other circumstances) will continue in full force and effect insofar as it remains a workable
instrument to accomplish the intent and purposes of the Parties; the Parties will replace
the severed provision with the provision that will come closest to reflecting the intention
of the Parties underlying the severed provision but that will be valid, legal, and
enforceable.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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25.7 No Third Party Beneficiaries. The Parties specifically disavow any desire or intention to
create a third party beneficiary contract, and specifically declare that no person, except
for the Parties and their permitted assigns, if any, shall have any rights hereunder nor any
right of enforcement.
IN WITNESS THEREOF, the Parties hereto have caused this Agreement to be executed and signed
by their respective officers duly authorized to do so, on the dates indicated below. Electronic
signatures are acceptable and have the same binding effects as original signatures.
Signature:
Print Name:
Je rey T. Perry, DBA
Title:
Chief Operating Officer, VP
Date:
7/28/2023
Countersigned:
B an Aungst,
Mayor
Ap ov'd as to fj
Owen Kohler
Lead Assistant City Attorney
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CITY OF CLEARWATER, FLORIDA
Jennoirrier
City Manager
Attest:
bi-UK-Oft: ()IA
Rosemarie Call
City Clerk
EXHIBIT A
DEFINITIONS
"Affiliate" means, with respect to a Party, any entity that controls, is controlled by, common
control with, such Party.
"Business Day" means any week day other than a day designated as a holiday by the United States
Postal Service as revised from time to time provided such Business Day does not conflict with a
Evernorth or Client recognized holiday.
"Evernorth Personnel" means the Clinical Personnel hired by Evernorth.
"Clinical Personnel" means the Evernorth Personnel health care professionals hired by Evernorth
as employees to perform services for Client under this Agreement. Evernorth Personnel does
not include third party subcontractors performing services under this Agreement. Evernorth
Personnel does not include anyone hired by Client or contracted with Client directly to provide
any services related to this Agreement.
"FTE" means full-time equivalent. One FTE is equivalent to one employee working full-time. Full-
time is defined as regularly working a forty hour week.
"Implementation Costs" means those costs associated with project management and Evernorth
Personnel services prior to Health Center opening, including onsite consultations by Evernorth
Operations and Clinical teams; quality assurance reviews; and initial training for Evernorth
Personnel.
"Infrastructure/Management Fee" means those costs associated with centralized administrative
functions, such as procurement of supplies and liability insurance, support services (regulatory,
compliance, and finance), and reporting and data integration.
"Provider" means a duly licensed physician, advance practice registered nurse or physician
assistant.
"Other Direct Expenses" means expenses related to the day-to-day operation of the Health
Center, including, but not necessarily limited to: continuing medical education; postage and
printing; marketing; ongoing training and education; overhead expenses, supplies, and ongoing
travel (Evernorth Direct Health management coming to site).
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"Personnel" of a Party means the direct and indirect employees, subcontractors, and agents of
such Party.
"Salaries and Benefits" means the cost of wages paid to Evernorth Personnel, including local
physician oversight/medical director or temporary staff, providing Services at the Health Center,
plus payroll, related taxes and benefits (including paid time off where applicable.)
"Supplies" means consumables related to the operation of the Health Center, i.e., office supplies,
non-medical supplies, and medical supplies necessary for the proper delivery of Services to
Participants, and pharmaceutical/flu serum supplies necessary to meet the pharmaceutical and
immunization needs of Participants served at the Health Center.
"Systems Expenses" means expenses associated with Employee Health Record (EHR) licenses;
system costs of data circuits, routers, printers, etc.; systems support; and equipment fee for use
of computers maintained and periodically replaced by Evernorth and support.
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Appendix 1 - Operating Budget
Evernorth Direct Health LLC
Cost Projection Estimates Prepared for:
City of Clearwater
£VERNORTW
Description J 10/1123 - 9/30/24 i 1011/24 - 9/30125 l 10/1/25'- 9130126
FTE's Physician
Nurse Practitioner
Medical Assistant
Front Office
Nurse Manager / LPN / RN
Total FTE's
Salaries & Benefits
Temp Labor
Other Direct Expenses
Supplies
System Expenses
Admin Fee
Infrastructure & Management Fees
'Total Onsite Health Center Estimate
1.00
1.00
2.00
1.00
1.00
6.00
837,000
60,000
78,000
166,000
79,000
21,000
404,000
1,645,000
1.00
1.00
2.00
1.00
1.00
6.00
861,000
60,000
79,000
169,000
82,000
21,000
414,000
1,686,000
1.00
1.00
2.00
1.00
1.00
6.00
884,000
60,000
81,000
171,000
84,000
21,000
425,000
1,726,000'1
CHC Operating Funding incentive 161,777 161,777 161,777
Total Cost Estimate after Cigna Contribution 1,483,223 1,524,223 1,564,223
Assumptions
1) The facility is staffed as indicated in the FTE section above
2) Full-time is considered to be 40 hours per week and represented by 1.00 FTE
3) Marketing for communications to those eligible for access to the site is planned at $5000 in year one and $5000 the following years
4) Recruitment cost for staff is projected at $5000 per year (Marketing & Recruitment are pass thru expenses, only charged if incurred)
5) External lab vendor will submit a claim.
6) Includes estimated cost of prepackaged medication
7) Temp labor is billed if incurred, the amount provided is an estimate
8) This cost projection may need to be updated if the scope of operations changes
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