HomeMy WebLinkAbout2403 Florida Opioid Allocation and Statewide Response AgreementFLORIDA OPIOID ALLOCATION AND #2403
STATEWIDE RESPONSE
AGREEMENT
1103:011kTAU02
STATE OF FLORIDA DEPARTMENT OF LEGAL AFFAIRS,
OFFICE OF THE ATTORNEY GENERAL
OR
CERTAIN LOCAL GOVERNMENTS IN THE STATE OF FLORIDA
This Florida Opioid Allocation and Statewide Response Agreement (the "Agreement') is
entered into between the State of Florida ('State") and certain Local Governments ("Local
Governments" and the State and Local Governments are jointly referred to as the "Parties" or
individually as a "Party"). The Parties agree as follows:
Whereas, the people of the State and its communities have been harmed by misfeasance,
nonfeasance and malfeasance committed by certain entities within the Pharmaceutical Supply
Chain; and
Whereas, the State, through its Attorney General, and certain Local Governments, through
their elected representatives and counsel, are separately engaged in litigation seeking to hold many
of the same Pharmaceutical Supply Chain Participants accountable for the damage caused by their
misfeasance, nonfeasance and malfeasance as the State; and
Whereas, certain of the Parties have separately sued Pharmaceutical Supply Chain
participants for the harm caused to the citizens of both Parties and have collectively negotiated
settlements with several Pharmaceutical Supply Chain Participants; and
Whereas, the Parties share a common desire to abate and alleviate the impacts of that
misfeasance, nonfeasance and malfeasance throughout the State; and
Whereas, it is the intent of the State and its Local Governments to use the proceeds from
any Settlements with Pharmaceutical Supply Chain Participants to increase the amount of funding
presently spent on opioid and substance abuse education, treatment, prevention and other related
programs and services, such as those identified in Exhibits "A" and "B," and to ensure that the
funds are expended in compliance with evolving evidence -based "best practices;" and
Whereas, the State and its Local Governments enter into this Agreement and agree to the
allocation and use of the proceeds of any settlement described herein
Wherefore, the Parties each agree to as follows:
A. Definitions
As used in this Agreement:
1. "Approved Purpose(s)" shall mean forward-looking strategies, programming and
services used to expand the availability of treatment for individuals impacted by substance use
disorders, to: (a) develop, promote, and provide evidence -based substance use prevention
strategies; (b) provide substance use avoidance and awareness education; (c) decrease the
oversupply of licit and illicit opioids; and (d) support recovery from addiction. Approved Purposes
shall include, but are not limited to, the opioid abatement strategies listed in Exhibits "A" and "B"
which are incorporated herein by reference.
2. "Local Governments" shall mean all counties, cities, towns and villages located
within the geographic boundaries of the State.
3. "Managing Entities" shall mean the corporations selected by and under contract with
the Florida Department of Children and Families or its successor ("DCF") to manage the daily
operational delivery of behavioral health services through a coordinated system of care. The
singular "Managing Entity" shall refer to a singular of the Managing Entities.
4. "County" shall mean a political subdivision of the state established pursuant to s. 1,
Art. VIII of the State Constitution.
5. "Dependent Special District" shall mean a Special District meeting the requirements
of Florida Statutes § 189.012(2).
6. "Municipalities" shall mean cities, towns, or villages located in a County within the
State that either have: (a) a Population greater than 10,000 individuals; or (b) a Population equal
to or less than 10,000 individuals and that has either (i) filed a lawsuit against one or more
Pharmaceutical Supply Chain Participants; or (ii) executes a release in connection with a
settlement with a Pharmaceutical Supply Chain participant. The singular "Municipality" shall
refer to a singular city, town, or village within the definition of Municipalities.
7. "'Negotiating Committee" shall mean a three-member group comprised by
representatives of the following: (1) the State; and (2) two representatives of Local Governments
of which one representative will be from a Municipality and one shall be from a County
(collectively, "Members") within the State. The State shall be represented by the Attorney General
or her designee.
8. "Negotiation Class Metrics" shall mean those county and city settlement allocations
which come from the official website of the Negotiation Class of counties and cities certified on
September 11, 2019 by the U.S. District for the Northern District of Ohio in In re National
Prescription Opiate Litigation, MDL No. 2804 (N.D. Ohio). The website is located at
https://allocatiorunap.iclaimsonline.com.
9. "Opioid Funds" shall mean monetary amounts obtained through a Settlement.
2
10. "Opioid Related" shall have the same meaning and breadth as in the agreed Opioid
Abatement Strategies attached hereto as Exhibits "A" or "B."
11. "Parties" shall mean the State and Local Governments that execute this Agreement.
The singular word "Party" shall mean either the State or Local Governments that executed this
Agreement.
12. "PEC" shall mean the Plaintiffs' Executive Committee of the National Prescription
Opiate Multidistrict Litigation pending in the United States District Court for the Northern District
of Ohio.
13. "Pharmaceutical Supply Chain" shall mean the entities, processes, and channels
through which Controlled Substances are manufactured, marketed, promoted, distributed or
dispensed.
14. "Pharmaceutical Supply Chain Participant" shall mean any entity that engages in, or
has engaged in the manufacture, marketing, promotion, distribution or dispensing of an opioid
analgesic.
15. "Population" shall refer to published U.S. Census Bureau population estimates as of
July 1, 2019, released March 2020, and shall remain unchanged during the term of this Agreement.
These estimates can currently be found at https://www.census.gov. For purposes of Population
under the definition of Qualified County, a County's population shall be the greater of its
population as of the July 1, 2019, estimates or its actual population, according to the official US.
Census Bureau count, which was released by the US. Census Bureau in August 2021.
16. "Qualified County" shall mean a charter or non -chartered County that has a
Population of at least 300,000 individuals and: (a) has an opioid taskforce or other similar board,
commission, council, or entity (including some existing sub -unit of a County's government
responsible for substance abuse prevention, treatment, and/or recovery) of which it is a member or
it operates in connection with its municipalities or others on a local or regional basis; (b) has an
abatement plan that has been either adopted or is being utilized to respond to the opioid epidemic;
(c) is, as of December 31, 2021, either providing or is contracting with others to provide substance
abuse prevention, recovery, and/or treatment services to its citizens; and (d) has or enters into an
interlocal agreement with a majority of Municipalities (Majority is more than 50% of the
Municipalities' total Population) related to the expenditure of Opioid Funds. The Opioid Funds to
be paid to a Qualified County will only include Opioid Funds for Municipalities whose claims are
released by the Municipality or Opioid Funds for Municipalities whose claims are otherwise
barred. For avoidance of doubt, the word "operate" in connection with opioid task force means to
do at least one of the following activities: (1) gathers data about the nature, extent, and problems
being faced in communities within that County; (2) receives and reports recommendations from
other government and private entities about activities that should be undertaken to abate the opioid
epidemic to a County; and/or (3) makes recommendations to a County and other public and private
leaders about steps, actions, or plans that should be undertaken to abate the opioid epidemic. For
avoidance of doubt, the Population calculation required by subsection (d) does not include
Population in unincorporated areas.
3
17. "SAMHSN' shall mean the U.S. Department of Health & Human Services,
Substance Abuse and Mental Health Services Administration.
18. "Settlement" shall mean the negotiated resolution of legal or equitable claims against
a Pharmaceutical Supply Chain Participant when that resolution has been jointly entered into by
the State and Local Governments or a settlement class as described in (B)(1) below.
19. "State" shall mean the State of Florida.
B. Terms
1. Only Abatement - Other than funds used for the Administrative Costs and Expense
Fund as hereinafter described or to pay obligations to the United States arising out of Medicaid or
other federal programs, all Opioid Funds shall be utilized for Approved Purposes. In order to
accomplish this purpose, the State will either: (a) file a new action with Local Governments as
Parties; or (b) add Local Governments to its existing action, sever any settling defendants. In either
type of action, the State will seek entry of a consent judgment, consent order or other order binding
judgment binding both the State and Local Governments to utilize Opioid Funds for Approved
Purposes ("Order") from the Circuit Court of the Sixth Judicial Circuit in and for Pasco County,
West Pasco Division New Port Richey, Florida (the "Court"), except as herein provided. The
Order may be part of a class action settlement or similar device. The Order shall provide for
continuing jurisdiction by the Court to address non-performance by any party under the Order.
2. Avoid Claw Back and Recoupment - Both the State and Local Governments wish
to maximize any Settlement and Opioid Funds. In addition to committing to only using funds for
the Expense Funds, Administrative Costs and Approved Purposes, both Parties will agree to utilize
a percentage of funds for the Core Strategies highlighted in Exhibit A. Exhibit A contains the
programs and strategies prioritized by the U.S. Department of Justice and/or the U.S. Department
of Health & Human Services ("Core Strategies"). The State is trying to obtain the United States'
agreement to limit or reduce the United States' ability to recover or recoup monies from the State
and Local Government in exchange for prioritization of funds to certain projects. If no agreement
is reached with the United States, then there will be no requirement that a percentage be utilized
for Core Strategies.
3. No Benefit Unless Fully Participating - Any Local Government that objects to or
refuses to be included under the Order or refuses or fails to execute any of documents necessary
to effectuate a Settlement shall not receive, directly or indirectly, any Opioid Funds and its portion
of Opioid Funds shall be distributed to, and for the benefit of, the Local Governments. Funds that
were a for a Municipality that does not join a Settlement will be distributed to the County where
that Municipality is located. Funds that were for a County that does not join a Settlement will be
distributed pro rata to Counties that join a Settlement. For avoidance of doubt, if a Local
Government initially refuses to be included in or execute the documents necessary to effectuate a
Settlement and subsequently effectuates such documents necessary to join a Settlement, then that
Local Government will only lose those payments made under a Settlement while that Local
Government was not a part of the Settlement. If a Local Government participates in a Settlement,
that Local Government is thereby releasing the claims of its Dependent Special District claims, if
any.
An
lu
4. Distribution Scheme — If a Settlement has a National Settlement Administrator or
similar entity, all Opioids Funds will initially go to the Administrator to be distributed. If a
Settlement does not have a National Settlement Administrator or similar entity, all Opioid Funds
will initially go to the State, and then be distributed by the State as they are received from the
Defendants according to the following distribution scheme. The Opioid Funds will be divided into
three funds after deducting any costs of the Expense Fund detailed below. Funds due the federal
government, if any, pursuant to Section B-2, will be subtracted from only the State and Regional
Funds below:
(a) City/County Fund- The city/county fund will receive 15% of all Opioid Funds
to directly benefit all Counties and Municipalities. The amounts to be distributed to each
County and Municipality shall be determined by the Negotiation Class Metrics or other
metrics agreed upon, in writing, by a County and a Municipality, which are attached to this
Agreement as Exhibit "C." In the event that a Municipality has a Population less than
10,000 people and it does not execute a release or otherwise join a Settlement that
Municipalities share under the Negotiation Class Metrics shall be reallocated to the
County where that Municipality is located.
(b) Regional Fund- The regional fund will be subdivided into two parts.
(i) The State will annually calculate the share of each County within the State
of the regional fund utilizing the sliding scale in paragraph 5 of the Agreement, and
according to the Negotiation Class Metrics.
(ii) For Qualified Counties, the Qualified County's share will be paid to the
Qualified County and expended on Approved Purposes, including the Core Strategies
identified in Exhibit A, if applicable.
(iii) For all other Counties, the State will appropriate the regional share for
each County and pay that share through DCF to the Managing Entities providing
service for that County. The Managing Entities will be required to expend the monies
on Approved Purposes, including the Core Strategies as directed by the Opioid
Abatement Task Force or Council. The Managing Entities shall expend monies from
this Regional Fund on services for the Counties within the State that are non -
Qualified Counties and to ensure that there are services in every County. To the
greatest extent practicable, the Managing Entities shall endeavor to expend monies
in each County or for citizens of a County in the amount of the share that a County
would have received if it were a Qualified County.
(c) State Fund - The remainder of Opioid Funds will be expended by the State
on Approved Purposes, including the provisions related to Core Strategies, if applicable.
(d) To the extent that Opioid Funds are not appropriated and expended in a
year by the State, the State shall identify the investments where settlement funds will be
deposited. Any gains, profits, or interest accrued from the deposit of the Opioid Funds to
the extent that any funds are not appropriated and expended within a calendar year, shall
be the sole property of the Party that was entitled to the initial amount.
5
(e) To the extent a County or Municipality wishes to pool, comingle, or
otherwise transfer its share, in whole or part, of Opioid Funds to another County or
Municipality, the comingling Municipalities may do so by written agreement. The
comingling Municipalities shall provide a copy of that agreement to the State and any
settlement administrator to ensure that monies are directed consistent with such
agreement. The County or Municipality receiving any such Opioid Funds shall assume
the responsibility for reporting how such Opioid Funds were utilized under this
Agreement.
5. Regional Fund Sliding Scale- The Regional Fund shall be calculated by utilizing the
following sliding scale of the Opioid Funds available in any year after deduction of Expenses and
any funds due the federal government:
A. Years 1-6: 40%
B. Years 7-9: 35%
C. Years 10-12: 34%
D. Years 13-15: 33%
E. Years 16-18: 30%
6. Opioid Abatement Taskforce or Council - The State will create an Opioid Abatement
Taskforce or Council (sometimes hereinafter "Taskforce" or "Council") to advise the Governor,
the Legislature, DCF, and Local Governments on the priorities that should be addressed by
expenditure of Opioid Funds and to review how monies have been spent and the results that have
been achieved with Opioid Funds.
(a) Size - The Taskforce or Council shall have ten Members equally balanced
between the State and the Local Government representatives.
(b) Appointments Local Governments - Two Municipality representatives will be
appointed by or through Florida League of Cities. Two county representatives, one from a
Qualified County and one from a county within the State that is not a Qualified County, will
be appointed by or through the Florida Association of Counties. The final representative
will alternate every two years between being a county representative (appointed by or
through Florida Association of Counties) or a Municipality representative (appointed by or
through the Florida League of Cities). One Municipality representative must be from a city
of less than 50,000 people. One county representative must be from a county of less than
200,000 people and the other county representative must be from a county whose population
exceeds 200,000 people.
(c) Appointments State -
(i) The Governor shall appoint two Members.
(ii) The Speaker of the House shall appoint one Member.
R
(iii) The Senate President shall appoint one Member.
(iv) The Attorney General or her designee shall be a Member.
(d) Chair - The Attorney General or designee shall be the chair of the Taskforce
or Council.
(e) Term - Members will be appointed to serve a four-year term and shall be
staggered to comply with Florida Statutes § 20.052(4)(c).
(f) Support DCF shall support the Taskforce or Council and the Taskforce or
Council shall be administratively housed in DCF.
(g) Meetings The Taskforce or Council shall meet quarterly in person or virtually
using communications media technology as defined in section 120.54(5)(b)(2),
Florida Statutes.
(h) Reporting - The Taskforce or Council shall provide and publish a report
annually no later than November 30th or the first business day after November 30th
if November 30th falls on a weekend or is otherwise not a business day. The report
shall contain information on how monies were spent the previous fiscal year by the
State, each of the Qualified Counties, each of the Managing Entities, and each of the
Local Governments. It shall also contain recommendations to the Governor, the
Legislature, and Local Governments for priorities among the Approved Purposes or
similar such uses for how monies should be spent the coming fiscal year to respond to
the opioid epidemic. Prior to July 1st of each year, the State and each of the Local
Governments shall provide information to DCF about how they intend to expend
Opioid Funds in the upcoming fiscal year.
(i) Accountability - The State and each of the Local Governments shall report its
expenditures to DCF no later than August 31st for the previous fiscal year. The
Taskforce or Council will set other data sets that need to be reported to DCF to
demonstrate the effectiveness of expenditures on Approved Purposes. In setting those
requirements, the Taskforce or Council shall consider the Reporting Templates,
Deliverables, Performance Measures, and other already utilized and existing templates
and forms required by DCF from Managing Entities and suggest that similar
requirements be utilized by all Parties to this Agreement.
0) Conflict of Interest - All Members shall adhere to the rules, regulations and
laws of Florida including, but not limited to, Florida Statute § 112.311, concerning the
disclosure of conflicts of interest and recusal from discussions or votes on conflicted
matters.
7. Administrative Costs- The State may take no more than a 5% administrative fee
from the State Fund and any Regional Fund that it administers for counties that are not Qualified
Counties. Each Qualified County may take no more than a 5% administrative fee from its share of
the Regional Funds. Municipalities and Counties may take no more than a 5% administrative fee
from any funds that they receive or control from the City/County Fund.
VA
8. Negotiation of Non -Multistate Settlements - If the State begins negotiations with a
Pharmaceutical Supply Chain Participant that is separate and apart from a multi -state negotiation,
the State shall include Local Governments that are a part of the Negotiating Committee in such
negotiations. No Settlement shall be recommended or accepted without the affirmative votes of
both the State and Local Government representatives of the Negotiating Committee.
9. Negotiation of Multistate or Local Government Settlements - To the extent
practicable and allowed by other parties to a negotiation, both Parties agree to communicate with
members of the Negotiation Committee regarding the terms of any other Pharmaceutical Supply
Chain Participant Settlement.
10. Program Requirements- DCF and Local Governments desire to make the most
efficient and effective use of the Opioid Funds. DCF and Local Governments will work to achieve
that goal by ensuring the following requirements will be minimally met by any governmental entity
or provider providing services pursuant to a contract or grant of Opioid Funds:
a. In either performing services under this Agreement or contracting with a
provider to provide services with the Opioid Funds under this Agreement, the State and
Local Governments shall be aware of and comply with all State and Federal laws, rules,
Children and Families Operating Procedures (CFOPs), and similar regulations relating
to the substance abuse and treatment services.
b. The State and Local Governments shall have and follow their existing policies
and practices for accounting and auditing, including policies relating to whistleblowers
and avoiding fraud, waste, and abuse. The State and Local Governments shall consider
additional policies and practices recommended by the Opioid Abatement Taskforce or
Council. c. In any award or grant to any provider, State and Local Governments shall
ensure that each provider acknowledges its awareness of its obligations under law and
shall audit, supervise, or review each provider's performance routinely, at least once
every year.
d. In contracting with a provider, the State and Local Governments shall set
performance measures in writing for a provider.
e. The State and Local Governments shall receive and report expenditures, service
utilization data, demographic information, and national outcome measures in a similar
fashion as required by the 42.U.S.C. s. 300x and 42 U.S.C. s. 300x-21.
f. The State and Local Governments, that implement evidenced based practice
models will participate in fidelity monitoring as prescribed and completed by the
originator of the model chosen..
g. The State and Local Governments shall ensure that each year, an evaluation of
the procedures and activities undertaken to comply with the requirements of this
Agreement are completed.
M
h. The State and Local Governments shall implement a monitoring process that will
demonstrate oversight and corrective action in the case of non-compliance, for all
providers that receive Opioid Funds. Monitoring shall include:
(i) Oversight of the any contractual or grant requirements;
(ii) Develop and utilize standardized monitoring tools;
(iii) Provide DCF and the Opioid Abatement Taskforce or Council with
access to the monitoring reports; and
(iv) Develop and utilize the monitoring reports to create corrective action
plans for providers, where necessary.
11. Reporting and Records Requirements- The State and Local Governments shall
follow their existing reporting and records retention requirements along with considering any
additional recommendations from the Opioid Abatement Taskforce or Council. Local
Governments shall respond and provide documents to any reasonable requests from the State or
Opioid Abatement Taskforce or Council for data or information about programs receiving Opioid
Funds. The State and Local Governments shall ensure that any provider or sub -recipient of Opioid
Funds at a minimum does the following:
(a) Any provider shall establish and maintain books, records and documents
(including electronic storage media) sufficient to reflect all income and expenditures of
Opioid Funds. Upon demand, at no additional cost to the State or Local Government, any
provider will facilitate the duplication and transfer of any records or documents during the
term that it receives any Opioid Funds and the required retention period for the State or
Local Government. These records shall be made available at all reasonable times for
inspection, review, copying, or audit by Federal, State, or other personnel duly authorized
by the State or Local Government.
(b) Any provider shall retain and maintain all client records, financial records,
supporting documents, statistical records, and any other documents (including electronic
storage media) pertinent to the use of the Opioid Funds during the term of its receipt of
Opioid Funds and retained for a period of six (6) years after its ceases to receives Opioid
Funds or longer when required by law. In the event an audit is required by the State of
Local Governments, records shall be retained for a minimum period of six (6) years after
the audit report is issued or until resolution of any audit findings or litigation based on the
terms of any award or contract.
(c) At all reasonable times for as long as records are maintained, persons duly
authorized by State or Local Government auditors shall be allowed full access to and the
right to examine any of the contracts and related records and documents, regardless of the
form in which kept.
(d) A financial and compliance audit shall be performed annually and provided to
the State.
6
(e) All providers shall comply and cooperate immediately with any inspections,
reviews, investigations, or audits deemed necessary by The Office of the Inspector General
(section 20.055, F.S.) or the State.
(f) No record may be withheld nor may any provider attempt to limit the scope of
any of the foregoing inspections, reviews, copying, transfers or audits based on any claim
that any record is exempt from public inspection or is confidential, proprietary or trade
secret in nature; provided, however, that this provision does not limit any exemption to
public inspection or copying to any such record.
12. Expense Fund - The Parties agree that in any negotiation every effort shall be made
to cause Pharmaceutical Supply Chain Participants to pay costs of litigation, including attorneys'
fees, in addition to any agreed to Opioid Funds in the Settlement. To the extent that a fund
sufficient to pay the full contingent fees of Local Governments is not created as part of a Settlement
by a Pharmaceutical Supply Chain Participant, the Parties agree that an additional expense fund
for attorneys who represent Local Governments (herein "Expense Fund") shall be created out of
the City/County fund for the purpose of paying the hard costs of a litigating Local Government
and then paying attorneys' fees.
(a) The Source of Funds for the Expense Fund- Money for the Expense Fund
shall be sourced exclusively from the City/County Fund.
(b) The Amount of the Expense Fund- The State recognizes the value litigating
Local Governments bring to the State in connection with the Settlement because their
participation increases the amount of Incentive Payments due from each Pharmaceutical
Supply Chain Participant. In recognition of that value, the amount of funds that shall be
deposited into the Expense Fund shall be contingent upon on the percentage of litigating
Local Government participation in the Settlement, according to the following table:
Litigating Local
Government Participation in
the Settlement (by
percentage of the population)
Amount that shall be
paid into the Expense Fund
from (and as a percentage
of) the Cit /Count fund
96 to 100%
10%
91 to 95%
7.5%
86 to 90%
5%
85%
2.5%
Less than 85%
0%
If fewer than 85% percent of the litigating Local Governments (by population) participate,
then the Expense Fund shall not be funded, and this Section of the Agreement shall be null and
void.
(c) The Timing of Payments into the Expense Fund Although the amount of
the Expense Fund shall be calculated based on the entirety of payments due to the
City/County fund over a ten -to -eighteen -year period, the Expense Fund shall be funded
entirely from payments made by Pharmaceutical Supply Chain Participants during the first
two payments of the Settlement. Accordingly, to offset the amounts being paid from the
10
City/County Fund to the Expense Fund in the first two years, Counties or Municipalities
may borrow from the Regional Fund during the first two years and pay the borrowed
amounts back to the Regional Fund during years three, four, and five.
For the avoidance of doubt, the following provides an illustrative example regarding the
calculation of payments and amounts that may be borrowed under the terms of this MOU,
consistent with the provisions of this Section:
Opioid Funds due to State of Florida and Local Governments (over 10
to 18 years):
Litigating Local Government Participation:
City/County Fund (over 10 to 18 years):
Expense Fund (paid over 2 years):
Amount Paid to Expense Fund in I st year:
Amount Paid to Expense Fund in 2nd year
Amount that may be borrowed from Regional Fund in I st year:
Amount that may be borrowed from Regional Fund in 2nd year:
Amount that must be paid back to Regional Fund in 3rd year:
Amount that must be paid back to Regional Fund in 4th year:
Amount that must be paid back to Regional Fund in 5th year:
$1,000
100%
$150
$15
$7.5
$7.5
$7.5
$7.5
$5
$5
$5
(d) Creation of and Jurisdiction over the Expense Fund- The Expense Fund
shall be established, consistent with the provisions of this Section of the Agreement, by
order of the Court. The Court shall have jurisdiction over the Expense Fund, including
authority to allocate and disburse amounts from the Expense Fund and to resolve any
disputes concerning the Expense Fund.
(e) Allocation of Payments to Counsel from the Expense Fund- As part of the
order establishing the Expense Fund, counsel for the litigating Local Governments shall
seek to have the Court appoint a third -neutral to serve as a special master for purposes of
allocating the Expense Fund. Within 30 days of entry of the order appointing a special
master for the Expense Fund, any counsel who intend to seek an award from the Expense
Fund shall provide the copies of their contingency fee contracts to the special master. The
special master shall then build a mathematical model, which shall be based on each
litigating Local Government's share under the Negotiation Class Metrics and the rate set
forth in their contingency contracts, to calculate a proposed award for each litigating Local
Government who timely provided a copy of its contingency contract.
13. Dispute resolution- Any one or more of the Local Governments or the State may
object to an allocation or expenditure of Opioid Funds solely on the basis that the allocation or
expenditure at issue (a) is inconsistent with the Approved Purposes; (b) is inconsistent with the
distribution scheme as provided in paragraph,; (c) violates the limitations set forth herein with
respect to administrative costs or the Expense Fund; or (d) to recover amounts advanced from the
Regional Fund for the Expense Fund. There shall be no other basis for bringing an objection to the
approval of an allocation or expenditure of Opioid Funds. In the event that there is a National
Settlement Administrator or similar entity, the Local Governments sole action for non-payment of
11
amounts due from the City/County Fund shall be against the particular settling defendant and/or
the National Settlement Administrator or similar entity.
C. Other Terms and Conditions
1. Governing Law and Venue: This Agreement will be governed by the laws of the
State of Florida. Any and all litigation arising under the Agreement, unless otherwise specified in
this Agreement, will be instituted in either: (a) the Court that enters the Order if the matter deals
with a matter covered by the Order and the Court retains jurisdiction; or (b) the appropriate State
court in Leon County, Florida.
2. Agreement Management and Notification: The Parties have identified the
following individuals as Agreement Managers and Administrators:
a. State of Florida Agreement Manager:
Greg Slemp
PL -01, The Capitol, Tallahassee, FL 32399
850-414-3300
Greg.slemp@myfloridalegal.com
b. State of Florida Agreement Administrator
Janna Barineau
PL -01, The Capitol, Tallahassee, FL 32399
850-414-3300
Janna.barineau@myfloridalegal.com
C. Local Governments Agreement Managers and Administrators are listed on
Exhibit C to this Agreement.
Changes to either the Managers or Administrators may be made by notifying the other Party
in writing, without formal amendment to this Agreement.
3. Notices. All notices required under the Agreement will be delivered by certified
mail, return receipt requested, by reputable air courier, or by personal delivery to the designee
identified in paragraphs C.2., above. Either designated recipient may notify the other, in writing,
if someone else is designated to receive notice.
4. Cooperation with Inspector General: Pursuant to section 20.055, Florida Statutes,
the Parties, understand and will comply with their duty to cooperate with the Inspector General in
any investigation, audit, inspection, review, or hearing.
12
5. Public Records: The Parties will keep and maintain public records pursuant to
Chapter 119, Florida Statutes and will comply will all applicable provisions of that Chapter.
6. Modification: This Agreement may only be modified by a written amendment
between the appropriate parties. No promises or agreements made subsequent to the execution of this
Agreement shall be binding unless express, reduced to writing, and signed by the Parties.
7. Execution in Counterparts: This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
8. Assignment: The rights granted in this Agreement may not be assigned or
transferred by any party without the prior written approval of the other party. No party shall be
permitted to delegate its responsibilities or obligations under this Agreement without the prior
written approval of the other parties.
9. Additional Documents: The Parties agree to cooperate fully and execute any and
all supplementary documents and to take all additional actions which may be reasonably necessary
or appropriate to give full force and effect to the basic terms and intent of this Agreement.
10. Captions: The captions contained in this Agreement are for convenience only and
shall in no way define, limit, extend or describe the scope of this Agreement or any part of it.
11. Entire Agreement: This Agreement, including any attachments, embodies the entire
agreement of the parties. There are no other provisions, terms, conditions, or obligations. This
Agreement supersedes all previous oral or written communications, representations or agreements
on this subject.
12. Construction: The parties hereto hereby mutually acknowledge and represent that
they have been fully advised by their respective legal counsel of their rights and responsibilities
under this Agreement, that they have read, know, and understand completely the contents hereof,
and that they have voluntarily executed the same. The parties hereto further hereby mutually
acknowledge that they have had input into the drafting of this Agreement and that, accordingly, in
any construction to be made of this Agreement, it shall not be construed for or against any party,
but rather shall be given a fair and reasonable interpretation, based on the plain language of the
Agreement and the expressed intent of the parties.
13. Capacity to Execute Agreement: The parties hereto hereby represent and warrant
that the individuals signing this Agreement on their behalf are duly authorized and fully competent
to do so.
13
14. Effectiveness: This Agreement shall become effective on the date on which the last
required signature is affixed to this Agreement.
IN WITNESS THEREOF, the parties hereto have caused the Agreement to be executed by
their undersigned officials as duly authorized.
STATE OF FLORIDA
11/15/2021
By: -DATED
Its:
City Commission of A the AQjtv of
Mayor C xa 7",
Ilk
Attest.
0,
Traci Houchih�. M FCkM,
City Clerk
jWba_rn L. Colbert, "CVi)Vf orney
14
14. Effectiveness: This Agreement shall become effective on the date on which the last
required signature is affixed to this Agreement.
IN WITNESS THEREOF, the parties hereto have caused the Agreement to be executed by
their undersigned officials as duly authorized.
STATE OF FLORIDA
11/15/2021
By: DATED
Its:
City Commission of thef City
MI VV-VUUIUII r
Mayor
Attest:
Traci Houchin, MMC, FCRNA'111",'11
City Clerk
For use and reliance of the
Sanford City Commission only.
Approved as to form and legality.
rX IL
V�i 7iam L.1Colbjrft,t, CltyvAtforney
'I ,
4a"C-- 61-y�l
lick
14
Florida Subdivision Participation Form
Governmental Entity: I+U
\5anit VrI State: R -
Authorized Signatory:
OY10-t4ZLt".,
Address 1: KA
k Ove -
Address 2:
City, State, Zip:9&4tfV<I
IFL 17 t
Phone: -1 - LkG-S -
E5D 3
Email:
(?, c3jr)
The governmental entity identified above ("Governmental Entity"), in order to obtain and in
consideration for the benefits provided to the Governmental Entity consistent with the material
terms of the National Settlement Agreement with Janssen, dated July 21, 2021 ("National
Janssen Settlement")acting through the undersigned authorized official, hereby elects to
participate in the National Janssen Settlement, release all Released Claims against all Released
Entities, and agrees as follows.
1. The Governmental Entity is aware of and has reviewed the National Janssen Settlement,
understands that all terms in this Election and Release have the meanings defined therein,
and agrees that by this Participation Form, the Governmental Entity elects to participate
consistent with the material terms of the National Janssen Settlement and become a
Participating Subdivision as provided therein pursuant to the terms of the National
Janssen Settlement or pursuant to terms consistent with the National Janssen Settlement.
2. The Governmental Entity's election to participate is specifically conditioned on
participation by Litigating Subdivisions and Litigating Special Districts representing 95%
or more of the population (combined) of Litigating Subdivisions and Litigating Special
Districts in Florida. Should the combined population of the Litigating Subdivisions and
Litigating Special Districts in Florida that participate be less than 95% of the population
(combined) of the Litigating Subdivisions and Litigating Special Districts in Florida, this
Election and Release shall be deemed void and no claims shall be released.
3. The Governmental Entity's execution of this Participation Agreement shall serve as the
Governmental Entity's acceptance of the terms and conditions of the Florida Opioid
Allocation And Statewide Response Agreement dated November 15, 2021.
4. The Governmental Entity shall, within 14 days of the Reference Date and prior to the
filing of the Consent Judgment, dismiss with prejudice any Released Claims that it has
filed.
5. The Governmental Entity agrees to the terms of the National Janssen Settlement
pertaining to Subdivisions as defined therein.
6. By agreeing to the terms of the National Janssen Settlement and becoming a Releasor, the
Governmental Entity is entitled to the benefits provided therein, including, if applicable,
monetary payments beginning after the Effective Date.
7. The Governmental Entity agrees to use any monies it receives through the National
Janssen Settlement solely for the purposes provided therein.
8. The Governmental Entity submits to the jurisdiction of the court in the Governmental
Entity's state where the Consent Judgment is filed for purposes limited to that court's role
as provided in, and for resolving disputes to the extent provided in, the National Janssen
Settlement Agreement.
9. The Governmental Entity has the right to enforce the National Janssen Settlement as
provided therein.
10. The Governmental Entity, as a Participating Subdivision, hereby becomes a Releasor for
all purposes in the National Janssen Settlement, including, but not limited to all
provisions of Section IV (Release), of the Janssen Settlement and along with all
departments, agencies, divisions, boards, commissions, districts, instrumentalities of any
kind and attorneys, and any person in their official capacity elected or appointed to serve
any of the foregoing and any agency, person, or other entity claiming by or through any
of the foregoing, and any other entity identified in the definition of Releasor, provides for
a release to the fullest extent of its authority. As a Releasor, the Governmental Entity
hereby absolutely, unconditionally, and irrevocably covenants not to bring, file, or claim,
or to cause, assist or permit to be brought, filed, or claimed, or to otherwise seek to
establish liability for any Released Claims against any Released Entity in any forum
whatsoever. The releases provided for in the National Janssen Settlement are intended by
the Parties to be broad and shall be interpreted so as to give the Released Entities the
broadest possible bar against any liability relating in any way to Released Claims and
extend to the full extent of the power of the Governmental Entity to release claims. The
National Janssen Settlement shall be a complete bar to any Released Claim.
11. In connection with the releases provided for in the National Janssen Settlement, each
Governmental Entity expressly waives, releases, and forever discharges any and all
provisions, rights, and benefits conferred by any law of any state or territory of the
United States or other jurisdiction, or principle of common law, which is similar,
comparable, or equivalent to § 1542 of the California Civil Code, which reads:
General Release; extent. A general release does not extend to claims that
the creditor or releasing parry does not know or suspect to exist in his or
her favor at the time of executing the release that, if known by him or her
would have materially affected his or her settlement with the debtor or
released parry.
A Releasor may hereafter discover facts other than or different from those which it
knows, believes, or assumes to be true with respect to the Released Claims, but each
Governmental Entity hereby expressly waives and fully, finally, and forever settles,
releases and discharges, upon the Effective Date, any and all Released Claims that may
exist as of such date but which Releasors do not know or suspect to exist, whether
through ignorance, oversight, error, negligence or through no fault whatsoever, and
which, if known, would materially affect the Governmental Entities' decision to
participate in the National Janssen Settlement.
12. Nothing herein is intended to modify in any way the terms of the National Janssen
Settlement to which Governmental Entity hereby agrees, with the exception of the
requisite Litigating Government participation level.
I swear under penalty of perjury that I have all neces
Election and Release on behalf of the Governmental
Signature:
Name:
Title:
Date:
0,4 V a-
/9
Attest.
r. Va
Traci Houchin, MM( Ma. °a
City Clerk
For use and relianc o
Sanford City Commis
Approved as to form an
Rr�
illiam L. Colbe'rt,t Wy—ttorney
AfdOe d - 4�D/w4v-
AT-A
through ignorance, oversight, error, negligence or through no fault whatsoever, and
which, if known, would materially affect the Governmental Entities' decision to
participate in the National Janssen Settlement.
12. Nothing herein is intended to modify in any way the terms of the National Janssen
Settlement to which Governmental Entity hereby agrees, with the exception of the
requisite Litigating Government participation level.
I swear under penalty of perjury that I have all necessary p er and th zati to ex ute this
Election and Release on behalf of the Governmental Enti
Signature:
Attest
N
A- - - . I
Traci Houchin, M i'FCRIVI
City Clerk
For use and reliance
Sanford City Commission only.
Approved as to form and legality.
William L. Colbe'rt,thy Attorney
1&)dljle-6)404F--
/ftA
Florida Subdivision Participation Form
Governmental Entity-
Seminole County State: Florida
Authorized Signatory:
A. Bryant Applegate
Address 1:
1101 E. 1st Street
Address 2:
City, State, Zip:
Sanford, Florida 32771
Phone:
407-665-7250
Email:
bapplegate(i�seminolecount),fl.gov
The governmental entity identified above ("Governmental Entity"), in order to obtain and in
consideration for the benefits provided to the Governmental Entity consistent with the material
terms of the National Settlement Agreement with Janssen, dated July 21, 2021 ("National
Janssen Settlement ")acting through the undersigned authorized official, hereby elects to
participate in the National Janssen Settlernent, release all Released Claims against all Released
Entities, and agrees as follows,
1. The Governmental Entity is aware of and has reviewed the National Janssen Settlement,
understands that all terms in this Election and Release have the meanings defined therein,
and agrees that by this Participation Form, the Governmental Entity elects to participate
consistent with the material terms of the National Janssen Settlement and become a
Participating Subdivision as provided therein pursuant to the terms of the National
Janssen Settlement or pursuant to terms consistent with the National Janssen Settlement.
2. The Governmental Entity's election to participate is specifically conditioned on
participation by Litigating Subdivisions and Litigating Special Districts representing 95%
or more of the population (combined) of Litigating Subdivisions and Litigating Special
Districts in Florida. Should the combined population of the Litigating Subdivisions and
Litigating Special Districts in Florida that participate be less than 95% of the population
(combined) of the Litigating Subdivisions and Litigating Special Districts in Florida, this
Election and Release shall be deemed void and no claims shall be released.
3. The Governmental Entity's execution of this Participation Agreement shall serve as the
Governmental Entity's acceptance of the terms and conditions of the Florida Opioid
Allocation And Statewide Response Agreement dated November 15, 2021.
4. The Governmental Entity shall, within 14 days of the Reference Date and prior to the
filing of the Consent Judgment, dismiss with prejudice any Released Claims that it has
filed.
5. The Governmental Entity agrees to the terms of the National Janssen Settlement
pertaining to Subdivisions as defined therein.
6. By agreeing to the terms of the National Janssen Settlement and becoming a Releasor, the
Governmental Entity is entitled to the benefits provided therein, including, if applicable,
monetary payments beginning after the Effective Date.
7. The Governmental Entity agrees to use any monies it receives through the National
Janssen Settlement solely for the purposes provided therein.
8. The Governmental Entity submits to the jurisdiction of the court in the Governmental
Entity's state where the Consent Judgment is filed for purposes limited to that court's role
as provided in, and for resolving disputes to the extent provided in, the National Janssen
Settlement Agreement,
9. The Governmental Entity has the right to enforce the National Janssen Settlement as
provided therein.
10. The Governmental Entity, as a Participating Subdivision, hereby becomes a Releasor for
all purposes in the National Janssen Settlement, including, but not limited to all
provisions of Section IV (Release), of the Janssen Settlement and along with all
departments, agencies, divisions, boards, commissions, districts, instrumentalities of any
kind and attorneys, and any person in their official capacity elected or appointed to serve
any of the foregoing and any agency, person, or other entity claiming by or through any
of the foregoing, and any other entity identified in the definition of Releasor, provides for
a release to the fullest extent of its authority. As a Releasor, the Governmental Entity
hereby absolutely, unconditionally, and irrevocably covenants not to bring, file, or claim,
or to cause, assist or permit to be brought, filed, or claimed, or to otherwise seek to
establish liability for any Released Claims against any Released Entity in any forum
whatsoever. The releases provided for in the National Janssen Settlement are intended by
the Parties to be broad and shall be interpreted so as to give the Released Entities the
broadest possible bar against any liability relating in any way to Released Claims and
extend to the full extent of the power of the Governmental Entity to release claims. The
National Janssen Settlement shall be a complete bar to any Released Claim.
11. In connection with the releases provided for in the National Janssen Settlement, each
Governmental Entity expressly waives, releases, and forever discharges any and all
provisions, rights, and benefits conferred by any law of any state or territory of the
United States or other jurisdiction, or principle of common law, which is similar,
comparable, or equivalent to § 1542 of the California Civil Code, which reads:
General Release; extent. A general release does not extend to claims that
the creditor or releasing party does not know or suspect to exist in his or
her favor at the time of executing the release that, if known by him or her
would have materially affected his or her settlement with the debtor or
released party.
A Releasor may hereafter discover facts other than or different from those which it
knows, believes, or assumes to be true with respect to the Released Claims, but each
Governmental Entity hereby expressly waives and fully, finally, and forever settles,
releases and discharges, upon the Effective Date, any and all Released Claims that may
exist as of such date but which Releasors do not know or suspect to exist, whether
through ignorance, oversight, error, negligence or through no fault whatsoever, and
which, if known, would materially affect the Governmental Entities' decision to
participate in the National Janssen Settlement.
12. Nothing herein is intended to modify in any way the terms of the National Janssen
Settlement to which Governmental Entity hereby agrees, with the exception of the
requisite Litigating Government participation level.
I swear under penalty of perjury that I have all necessary power and authorization to execute this
Election and Release on behalf of the Governmental Entity
Signature:
Name:
Title: 'Se wcua - , -11, t - - - �, Ca !--;k� q`
Date:
CITY OF --
,ii`� kNFORD WS X RM X
S` oFtt A Item No. -&
CITY COMMISSION MEMORANDUM 21.259.W
DECEMBER 13, 2021 AGENDA
TO: Honorable Mayor and Members of the City Commission
PREPARED BY: Lonnie N. Groot, Assistant City Attorney
SUBMITTED BY: Norton N. Bonaparte Jr., ICMA-CM, City Manager,
SUBJECT: Opioid Litigation; Proposed Settlements From AmerisourceBergen,
Cardinal Health, And McKesson And Janssen/Johnson & Johnson; Florida
Opioid Allocation Agreement
STRATEGIC PRIORITIES:
❑ Unify Downtown & the Waterfront
❑ Promote the City's Distinct Culture
® Update Regulatory Framework
❑ Redevelop and Revitalize Disadvantaged Communities
SYNOPSIS:
Approval of recommendations of opioid litigation legal counsel in the opioid litigation relative to
the proposed settlements from AmerisourceBergen, Cardinal Health, and McKesson (collectively,
"Distributors"), and Janssen/Johnson & Johnson ("J&J") (collectively, "Settling Defendants"),
along with the Florida Opioid Allocation Agreement is requested.
FISCAL/STAFFING STATEMENT:
This matter relates to the continuing evolution City's involvement as addressed in litigation
seeking appropriate legal remedies against distributors, manufacturers and others involved in
causing public harm in the context of the National crisis involving opioid pain medications.
Ultimately, when funds are collected, a mechanism relating to the targeted expenditure of those
funds for purposes that are authorized under the settlement documents will need to be formalized
and implemented. Discussions with City staff and the County Attorney's office (Chief Assistant
County Attorney Desmond Morrell) and the Sherriff's legal counsel Marry Ann Klein) have been
initiated.
BACKGROUND:
As the City Commission is well aware, the City is represented in the Nationwide opioid litigation,
based upon past City Commission actions, by a legal team that is spearheaded by the Romano Law
Group, of West Palm Beach. The City Commission has received past briefings relative to this
ongoing complex litigation and has taken action relative to certain matters as presented from time -
to -time.
I E I i t _T C
Attorney Eric Romano, of the Romano Law Group, has recently communicated with the City
relative to proposed settlements from the Distributors and W. (Please see the email that is
attached to this agenda memorandum as "Attachment 'I"'). Mr. Romano has noted that the
proposed settlements are complex and the circumstances are evolving. Mr. Romano, and his team,
continue to provide the City with the time and necessary information and instructions to assist the
City in taking appropriate actions to protect the rights of the City and to maximize settlement
benefits which may be available to the City.
Statewide Allocation Agreement:
In Attachment "1", Mr. Romano has outlined the manner in which Statewide Allocation
Agreement will be implemented under which settlement funds will flow into the State's coffers
and then be allocated in a manner which includes local governments.
In sum, the City Commission previously approved a Memorandum of Understanding ("MOU")
with the State which provides for apportionment of funds. The MOU, as anticipated, was reduced
to a formal agreement consistent with the MOU as set forth in Attachment "2" (the "Florida
Opioid Allocation and Statewide Response Agreement" or "Allocation Agreement"). Mr. Romano
well pointed out several matters relative to the Agreement. First, with regard to clawback and
recoupment provisions, Mr. Romano and his team have worked to make it clear that the intention
is that any clawback or recoupment does not apply to the direct payments to local governments if
the Federal government takes such action against the State and that the State will continue to seek
an agreement with the Federal government to limit or reduce its right to recoup any funds. Second,
provisions of the Agreement relate to the efficient and effective use of the funds by way of
program requirements, along with reporting and auditing requirements which apply as a matter of
law. The City need not execute the Allocation Agreement. The City Attorney's office often
expresses reminders when the City accepts grants to ensure that all post -audits will result in
findings that the City has complied with all terms and conditions of grants in order to avoid grantor
clawing back funds that have already been expended by the City.
Participation Agreements (Releases):
The City has recently registered to be eligible to receive Participation Agreements from the
settlement administrator for the litigation. The Florida Participation Agreements have been
modified and are specific to Florida. The modification includes a condition in the Participation
Agreements that makes the participation of the City contingent on at least 95% of the applicable
litigating subdivisions signing on to the proposed settlements. If an insufficient number of
applicable litigating subdivisions of local government do not participate in the proposed
settlements, Florida could receive approximately 50% of the available payments from the Settling
Defendants. By making City participation contingent on 95% of the applicable litigating
subdivisions of local governments approving on to the proposed settlements, the City will only
participate if Florida is entitled to receive at least 70% of the available payments from the Settling
Defendants. Thus, the City's election to participate is specifically conditioned on participation by
Litigating Subdivisions and Litigating Special Districts representing 95% or more of the
population (combined) of Litigating Subdivisions and Litigating Special Districts in Florida.
Should the combined population of the Litigating Subdivisions and Litigating Special Districts in
the State of Florida that participate be less than 95% of the population (combined) of the Litigating
21PaC ,e
Subdivisions and Litigating Special Districts in Florida, the City's Election and Release will be
deemed void and no claims would be released by the City.
There are two Participation Agreements being submitted to the City Commission (Attachment "3"
and Attachment 4"). One is for the Distributors and one is for J&J. Approval of the Participation
Agreements serves to release all opioid claims against the Settling Defendants.
Detailed information about the settlements may be found at the following website which is
supplemented from time -to -time with updated information: httl)s://natioiialopioidsettlement.coni/.
This national settlement website also includes links to helpful summary information including
risks, assumptions, FAQs and flow charts describing how the settlements are being implemented in
Florida, and how settlement funds will be allocated within Florida, including information about,
and links to, any applicable allocation agreement or legislation.
LEGAL. REvIEw:
The City Attorney's office recommends that the City Commission follow the recommendation of
the Romano Law Group and approve the subject documents for execution by the Mayor.
RECOMMENDATION:
City staff recommends that the City Commission follow the recommendation of the Romano Law
Group and approve the subject documents for execution by the Mayor.
SUGGESTED MOTION:
"I move to follow the recommendation of the Romano Law Group with regard to the approval of
proposed documents and to authorize the Mayor to execute the documents on behalf of the City
with the City Clerk to provide the two executed Participation Agreements to attorney Eric
Romano."
Attachments: (1). Email communications between attorney Eric Romano and Assistant City
Attorney Lonnie Groot of November 18-19, 2021 with the subject of "Important
Update Regarding Opioid Litigation - City of Sanford"..
(2). The "Florida Opioid Allocation and Statewide Response Agreement" or
"Allocation Agreement".
(3). Participation Agreement relative to the Distributors.
(4). Participation Agreement relative to the J&J.
(5). County executed Participation Agreements relative to the Distributors and
J&J.
311)a;