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HomeMy WebLinkAboutWellmark Agreement FSA 2023-2024 - 5.15.2023Master Services Agreement This Master Services Agreement is made by and between Wellmark, Inc., an Iowa Corporation, ("Wellmark") and City of Waterloo ("Client"), located at 715 Mulberry St. Waterloo IA 50703 and it contains the general terms and conditions governing the administrative services Wellmark will perform for the benefit of the Client. Effective Date: The "Effective Date July I, 2023 Each Addendum attached hereto and incorporated herein by reference contains terms and conditions specific to each service offering elected by Client (referred to collectively or individually as the context so requires as the "Services"). Client has the following services: Gd Flexible Spending Account ❑ Health Reimbursement Account ❑ Health Savings Account I < Non- Discrimination Testing ❑ HIPAA Business Associate Agreement This Master Services Agreement and any attached Addenda shall be referred to collectively herein as the "Agreement." Article 1. Tenn and General Matters Section 1.01. Term The term of this Agreement shall commence on the Effective Date and continue for a period of one (I) year (`Initial Term"). This Agreement shall automatically renew for additional one (I) year periods ("Renewal 'term"), unless either party opts not to renew this Agreement by providing written notice to the other at least ninety (90) days prior to end of the Initial Term or a Renewal Term. This Agreement may be terminated during the Initial Term or Renewal Term based on the provisions of Section 5.08. Section 1.02. General Matters Client acknowledges and agrees that: (i) Wellmark intends to contract with a third party service provider ("Service Provider") for the performance of some or all of the Services hereunder; (ii) any or all obligations of Wellmark hereunder may be subcontracted and delegated to Service Provider, in Wellmark's discretion; (iii) the Services provided by Service Provider on behalf of Wellmark may be provided directly to Client, in Wellmark's discretion; (iv) Client may be required to interact directly with Service Provider with respect to one or more obligations of Client hereunder; (v), client may be required to interact directly with Service Provider with respect to one or more obligations of Client hereunder, as directed by Wellmark. Client acknowledges and agrees that it may be required to enter into one or more agreements with Service Provider for services that are ancillary to the Services hereunder, including, without limitation, a Funding Agreement (each a "Service Provider Agreement"). The performance by Wellmark and/or Service Provider of the Services under this Agreement is conditioned on Client's execution, delivery and proper performance under such agreements. Without limiting the generality of the foregoing, Client must comply with all terms of any Funding Agreement between Client and Wellmark or Service Provider as e condition of Wetlmark's and/or Service Provider's performance under this Agreement. Article II. Administration Fees and Benefit Funrlinn Section 2,01, Fees Client will receive paper or electronic (e-mail or web -accessible) invoices for fees ("Fees") as further described in each Addendum. Payments for administration fees are due on the due date set forth on the invoice (which is twenty- one days after the billing date) unless otherwise stated in the applicable Addendum. Client shall pay by Client -initiated ACH (Credit), e-billing, corporate check or wire to en account designated by Wellmark or by a Wellmark initiated ACH Debit, as further directed in the applicable Addendum. Client shall also be responsible for any sales taxes that are incurred by Wellmark as a result of performing the Services described herein and such actual amounts shall be included in the monthly invoice provided to Client. Further, Client shall also be responsible for paying any reasonable costs and expenses, including legal fees, incurred by Wellmark as a consequence of any failure of Client to pay the Fees in a timely manner. All services not outlined in the Addenda, that are required as a result of legislative changes or otherwise, will be subject to additional fees. Section 2.02. Late Payments Fees not paid when due shall be subject to en interest charge on the outstanding amount from the due date until payment is made in full at an annual rate of interest equal to the then -current Prime Rate as published in the Midwest edition of The Wall Street Jounlal plus teen percent (2%). Client must submit written notice to Wellmark and supporting documentation as to any Fees it disputes within thirty (30) days from the date of the invoices. Wellmark shall provide a written response within thirty (30) days of the notice of dispute. Upon resolution Client shall pay any and all outstanding amounts within five (5) business days of such resolution plus the foregoing interest. Notwithstanding anything in this Agreement (or any Addenda) to the contrary, if Client fails to pay Wellmark and/or Service Provider within the required time period any amount that is due hereunder or under any Service Provider Agreement (including, without limitation, Fees and benefit claims funding amounts) Wellmark may suspend services to the Client. Section 2.03. Pre -Note Client hereby authorizes a "pre -note" for the sole purpose of testing the accuracy of electronic transactions for any benefit funding (to the extent applicable) and Fee payment arrangement under which Wellmark or Service Provider is to issue en ACH debit. This pre -note will not result in a charge to Client and shall be issued at least thirty (30) days prior to the effective date of the first benefit month under this Agreement to ensure all systems are properly functioning. Section 2.04. Benefit Claims Funding Client acknowledges and agrees that all benefit funding amounts provided to Wellmark and/or Service Provider pursuant to the terms of this Agreement shall be provided from Client's general assets. In no event will Client provide funds to Wellmark or Service Provider that consist of plan assets or participant/employee contributions, whether made by salary reduction or otherwise, as those terms have their general meanings under ERISA. All benefit funding amounts provided by Client to Wellmark or Service Provider shall not be segregated or set aside in a trust or escrow account by Wellmark or Service Provider. Upon termination of this Agreement, Wellmark or Service Provider, as applicable, shall provide an accounting and reconciliation to Client and shall pay to Client any amount due based on the terms and conditions of each applicable Addendum to this Agreement. 2 Article III. Services. Exclusions & Maintenance Section 3.01. Services The Services provided to Client are outlined in each Addendum. If any material changes in the products that underlie the Services are needed, Well mark will provide Client with prior written notice of such material changes; provided that immediate modifications may be necessitated by changes in the law or to curtail substantial abuse by participants and in all such cases Wellmark shall notify Client as soon as administratively practicable of such changes. Section 3.02. Exclusion from Services Although Wellmark and/or Service Provider serve as the Client's agent for services rendered pursuant to this Agreement, the Client remains solely and completely responsible for all activities of the employee benefit plans (the "Plans") sponsored by Client, including compliance with the Employee Retirement Income Security Act of 1974, as amended, ("ERISA"), the Health Insurance Portability and Accountability Act of 1996, as amended, ("HIPAA"), the Internal Revenue Code of 1986, as amended, (the "Code"), state and local escheat and unclaimed properly laws, and other applicable laws and regulations. Client agrees to indemnify and hold Wellmark and Service Provider harmless (including reasonable attorney fees) and expressly releases all claims against Wellmark and Service Provider in connection with any claim or cause of action, which results from the failure or alleged failure of Client (and it officers and employees) to comply with ERISA, HIPAA, the Code and any other applicable law, except to the extent that such claims or causes of action result from the willful actions or willful failure to act by Wellmark (if the claim is against Wellmark) or Service Provider (if the claim is against Service Provider). Notwithstanding the foregoing, neither Well mark nor Service Provider shall be responsible for the following: (a) verifying the completeness or accuracy of any information provided by Client, or rekeying or reprocessing incorrect data; (b) developing Client's policies and procedures for its Plans; (c) independently determining fraudulent activities by Plan participants or beneficiaries; (d) providing legal or tax advice to Client or Plan participants or beneficiaries; (e) reporting any information to any government agencies, or withholding from any Plan benefits amounts necessary to cover any income, employment or other payroll taxes; (f) negotiating any Services on behalf of Plan participants or beneficiaries; and (g) activities or services not specified in this Agreement or the Addenda attached hereto. Section 3.03. Maintenance Wellmark and its Service Provider reserve the right to perform routine system (both web and IVR) maintenance during off hours (normally between 9PM and 5AM ET). The maintenance normally requires no more than two (2) hours per day, or one (1) weekend per month. Any longer taintenance will be posted on the web pages. 3 Article IV. Client Responsibilities Section 4.01. Responsibilities Client shall be responsible for establishing and maintaining the Plans, including, without limitation, the following: (a) Determining employees who are eligible to participate in the Plans that are the subject of the Services; (b) Timely electronic delivery of Plan data in a format acceptable to Wellmark and/or Service Provider; (e) Delivering updates to Wellmark and/or Service Provider regarding employees' information, including, without limitation, changes in salary reduction amounts, eligibility, additions and deletions of Plan participants and dependents covered by a particular Service, in the format, medium, and timeframe further described in specific Addenda or provided to Client in writing by Wellmark and/or Service Provider; (d) The accuracy and completeness of all data provided to Wellmark or Service Provider; (e) Establishing, deploying, and maintaining its own policies and procedures regarding which of its personnel may access Wellmark's or Service Provider's site; and (1) Drafting, adopting, communicating and transmitting Plan documents, policies and procedures to its employees. Section 4.02. Client as Plan Administrator and Fiduciary With respect to any and all Plans and programs for which Services are provided hereunder, Client acknowledges and agrees that it is the "plan administrator" and "fiduciary" for purposes of ERISA to the extent such law applies to the Services. Article V. General Le2al Terms Section 5.01. Intellectual Property As between Wellmark and Client, Wellmark owns and shall retain all right, title and interest (including, without limitation, all intellectual property rights) in and to all software, web pages, documents, processes, and other information, equipment and materials used in connection with the provision of services hereunder including, without limitation, those developed by Wellmark or Service Provider for use by Client and Plan participants and beneficiaries (the "System"). Wellmark grants Client and Plan participants and beneficiaries a limited, non-exclusive, non -transferable license to access and use the System during the Term of this Agreement, solely and exclusively: (a) in accordance with this Agreement and any instructions, user guides, and policies made available by Wellmark or Service Provider; and (b) for the purpose of receiving the Services provided by Wellmark and/or Service Provider under and in accordance with this Agreement. Without limiting the generality of the foregoing, Client may not, (a) without Wellmark's prior written consent, disclose or provide access to the System to any third parties, or (b) duplicate the System (or any associated materials) or use the same in connection with any other benefits program (including Client programs). In addition Client shall, at Client's expense, return, erase, or otherwise destroy all such items, and may not use such materials following the termination of this Agreement. Section 5.02. Warranty Wellmark warrants that the Services will be performed in accordance with generally accepted industry practices and with reasonable skill and care. THIS WARRANTY IS EXCLUSIVE. THE SYSTEM AND SERVICES ARE PROVIDED "AS IS" WITHOUT ANY FURTHER WARRANTY OF ANY KIND (EXPRESS OR IMPLIED) INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHICH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE FOREGOING, WELLMARK MAKES NO WARRANTY, REPRESENTATION OR CLAIM WITH RESPECT TO THE RESULTS OBTAINED THROUGH USE OF THE SYSTEM PROVIDED HEREUNDER. WELLMARK SHALL NOT BE RESPONSIBLE FOR (A) THE FAILURE OF CLIENT TO ACCESS THE SERVICES PROVIDED HEREUNDER DUE TO ANY FAILURE OR INABILITY TO ACCESS THE INTERNET, PUBLIC COMMUNICATIONS FACILITIES OR OTHER PUBLIC UTILITIES; OR (B) FOR ACTS OR OMISSIONS OF ANY VENDOR OR MERCHANT (OTHER THAN SERVICE PROVIDER). Section 5.03. Indemnification Wellmark agrees to indemnify and hold Client harmless with respect to any and all claims, liabilities, losses, damages or expenses (including reasonable attorney fees) caused by the gross negligence or willful misconduct of Wellmark in its performance of' its responsibilities pursuant to the provisions of this Agreement. However, this indemnification provision shall not apply to any claims, liabilities, losses, damages, or expenses caused by any action or failure to act by the Client or its agents, servants or employees. Client agrees to indemnify and hold Wellmark, Service Provider and any of their respective directors, officers, shareholders, employees or agents harmless from and against any loss, liability, damage, expense (including reasonable attorney fees), or other cost or obligation caused by, resulting from or arising out of (i) Client's or its agents', servants' or employees' gross negligence, willful misconduct, breach of this Agreement, breach of any Service Provider Agreement, or failure to comply with applicable laws, and (ii) any claims in which Wellmark, Service Provider or any of their respective directors, officers, shareholders, employees or agents are named or joined with Client when such party has not engaged in any wrongful act. Without limiting the generality of the foregoing, Client agrees to indemnify and hold Wellmark, Service Provider and any of their respective directors, officers or employees harmless from and against any loss, liability, damage, expense (including reasonable attorney fees) or other cost or obligation caused by, resulting fiam, or arising out of (i) any income or emp loyment tax withholding matter whatsoever (including, without limitation, the failure to properly withhold any such amounts), and (ii) any benefits payments made or directed by Wellmark or Service Provider to, or for the benefit of, any plan participants hereunder. The indemnified party will promptly notify the indemnifying party of any such claim; provided, however, that the failure to so notify the indemnifying party shall not relieve the indemnifying party of its obligations hereunder except to the extent the indemnifying party is materially prejudiced by such failure. The indemnifying party shall assume and have sole control of the defense of such claim; provided, however, that neither party may settle any claim without the prior written consent of the other party if such settlement exposes the other party to any liability. 5 Section 5.04. Limitation of Liability FOR PURPOSES OF THIS SECTION, THE TERM "PARTY," WITH RESPECT TO WELLMARK, AND REFERENCES TO "WELLMARK," SHALL INCLUDE WELLMARK'S SUBCONTRACTORS, INCLUDING SERVICE PROVIDER. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST BUSINESS, LOSS OF DATA OR COST OF SUBSTITUTE GOODS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES PERFORMED HEREUNDER UNDER ANY THEORY OF LIABILITY (WI -(ETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE). IN ADDITION, WELLMARK'S LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO LIQUIDATED DAMAGES IN THE AMOUNT OF THE FEES PAID BY CLIENT TO WELLMARK HEREUNDER FOR THE MOST RECENT THREE (3) CALENDAR MONTHS IMMEDIATELY PRECEDING THE MONTH IN WHICH THE EVENT OCCURRED THAT GAVE RISE TO THE DAMAGES. THE PROVISIONS OF THIS PARAGRAPH APPLY EVEN THOUGH THE LOSS OR DAMAGE, IRRESPECTIVE OF CAUSE OR ORIGIN, RESULTS, DIRECTLY OR INDIRECTLY, EITHER FROM PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS IMPOSED HEREUNDER. IN NO EVENT SHALL SERVICE PROVIDER BE DIRECTLY LIABLE TO CLIENT HEREUNDER. THE FOREGOING LIMITATIONS OF LIABILITY SHALL NOT APPLY WITH RESPECT TO A PARTY'S INDEMNIFICATION OBLIGATIONS HEREUNDER. NO CLAIM MAY BE ASSERTED AGAINST WELLMARK MORE THAN ONE (1) YEAR AFTER SUCH CLAIM HAS BEEN LAWFULLY ASSERTED AGAINST OR BECOME KNOWN TO CLIENT, WHICHEVER SHALL OCCUR FIRST. Section 5.05. Wellmark as Independent Contractor Wellmark, and any entity (including those in a chain of service providers) that provides services to Wellmark to complete transactions requested by the Client or Plan participants and beneficiaries, including, without limitation, Service Provider, are independent contractors of Client. Nothing contained in this Agreement shall be construed as creating or evidencing a contractual relationship between Client or any such entity, including, without limitation, Service Provider. 6 Section 5.06. Confidentiality Each party acknowledges that performance of the Agreement may involve access to and disclosure of Confidential Information belonging to the other. "Confidential Information" means any non-public confidential or proprietary information, including, without limitation, business and financial information; policies and procedures; operations; customer and potential customer names; suppliers and vendor names; trade secrets; trade dress; patent applications; inventions disclosures, and with respect to Plan participants and beneficiaries personal identification information (such as addresses and social security numbers). Confidential Information does not, however, include any information that: (a) was publicly available or released to the public domain at any time prior to disclosure by one party, (b) becomes publicly known or generally available after disclosure by one party through no wrongful action or inaction of the other party, (c) information that is in the party's possession or known by the party at any time prior to the time of disclosure; (d) is rightfully disclosed to the party by a third party without similar restriction, or (e) is independently developed by the party without use of the other party's Confidential information. No Confidential Information shall be disclosed to any third party other than representatives of such party who have a need to know such Confidential Information, provided that such representatives are informed of the confidentiality provisions hereof and agree to abide by them. Notwithstanding the foregoing, Confidential Information may also he provided to Service Provider. All such Confidential Information must be maintained in strict confidence. In addition, each party will maintain the confidentiality of medical records as required by law. In the event a party is required by law to disclose Confidential Information, the disclosing party shall immediately notify the other pity in writing, describing the circumstances of and extent of the disclosure. Upon termination of the Agreement, each party, upon the request of the other, will return or destroy all copies of all of the other's Confidential Information in its possession or control except to the extent such Confidential Information must be retained pursuant to applicable law, provided, however, that, Wellmark and/or Service Provider may retain copies of any such Confidential Information it deems necessary for the defense of litigation concerning the Services it provided under the Agreement. The parties acknowledge that compliance with the provisions of the foregoing paragraphs are necessary to protect their businesses and goodwill and that any actual or prospective breach will irreparably cause damage to them for which money damages may not be adequate. The parties therefore agree that if one of them breaches or attempts to breach the foregoing paragraphs hereof, the other party shall be entitled to obtain temporary, preliminary, and permanent equitable relief, without bond, to restrain such breaches, together with any and all other legal and equitable remedies available under applicable law or under the Agreement. The prevailing party shall be entitled to recover from the other party the reasonable attorneys' fees and costs it expends in any action related to such breach or attempted breach. Section 5.07. Records Maintenance and Disposition Wellmark and Service Provider shall have the right to keep and archive records of information and data regarding Client and the Plan obtained in connection with the provision of Services hereunder (collectively "Service Records") for the longer of what is required by applicable law or seven (7) years from the date such information is received by Wellmark or Service Provider, as the case may be. Subject to any confidentiality obligations that may apply, Client may request that a copy of the applicable Service Records be provided to Client (or to a third party designated by Client in writing); provided, that Wellmark and/or Service Provider may retain copies of any Service Records it deems necessary for the defense of litigation concerning the Services it provided under the Agreement. Section 5.08. 'Termination (a) Termination I'br Breach Either party may terminate this Agreement with immediate effect in the event the other party remains in default as to any of its material obligations hereunder after receiving written notice of the same and failing to cure such default within thirty (30) days of the date of such notice or ten (10) days in the event of nonpayment. 7 (b) Termination for Bankruptcy, Insolvency, or Business Wind Down Either party may terminate this Agreement immediately if either party (i) voluntarily files for bankruptcy; (ii) admits its insolvency; (iii) takes action to commence winding down its business; or (iv) is named as a defendant in any involuntary bankruptcy or insolvency proceeding. In the event Client is involved in a bankruptcy proceeding as described in the foregoing sentence, Wellmark shall also have the right to suspend the payment of claims under this Agreement unless and until an order is obtained from the bankruptcy court, in form and substance acceptable to Wellmark, authorizing such payment and Client has deposited the funds necessary to pay such claims in full. (c) Effect of Termination Upon termination of this Agreement, Wellmark shall notify Client of the date on which all Services shall cease. At that time, all rights and licenses granted hereunder to use the System (including, without limitation software and/or user manuals, training materials, and other written materials that relate to the services provided hereunder) shall immediately terminate. Section 5.09. Publicity During the term of this Agreement, either party may issue public statements or announcements relating to the provision of Services hereunder as long as such party has received the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed. Section 5.10. Assignment Neither party may assign any of its rights and obligations under this Agreement without the prior written consent of the other party which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, either party may assign this Agreement to one of its controlled entities and Wellmark may delegate its obligations hereunder to Service Provider. This Agreement shall be binding upon and shall inure to the benefit of the parties' respective successors and assigns. Section 5.11. Notices Notices from a party concerning this Agreement must be written and delivered to the other party at the addresses shown below (i) in person, (ii) by certified mail, return receipt requested, (iii) by traceable overnight delivery, or (iv) by electronically confirmed facsimile or electronic mail and followed immediately by U.S. Mail. A signed receipt shall be obtained where a notice is delivered in person. Notice will be effective upon delivery. If to Wellmark: 1331 Grand Avenue, Des Moines, Iowa 50309, Attn: General Counsel. If to Client, to the main address shown on page one of this Agreement. Section 5.12. Excused Nonperformance Notwithstanding any other provision of this Agreement, neither party shall be liable in any way for any delay or any failure of performance of a Service or for any loss or damage due to any causes beyond its reasonable control, including, withal limitation, acts of nature, acts of terrorism or a public enemy, war (whether declared or not), acts of the Government, earthquake, fire, floods, degradation or disruption of any communication service not under a party's control, loss of electrical power, congestion, failure or other inability to access the Internet or disruption in the financial markets or the banking system, provided prompt notice thereof is given to the other party. Section 5.13. Waiver Failure of either party to insist on performance of any term or condition of this Agreement or to exercise any right or privilege hereunder shall not be construed as a continuing or future waiver of such term, condition, right or privilege. Section 5.14. Severability In the event any provision of this Agreement is held invalid, illegal or unenforceable, in whole or in part, the remaining provisions of this Agreement shall not be affected thereby and shall continue to be valid, legal and enforceable, provided that the economic and legal substance of the transactions contemplated hereby is not affected in a manner that is materially adverse to either party. Section 5.15. Governing Law This Agreement and any claims arising hereunder or related hereto shall be governed by the laws of the State of Iowa, without regard to its conflicts of laws principles. Section 5.16. Blue Cross and Blue Shield Disclosure Statement Client, on behalf of itself and its participants, hereby expressly acknowledges its understanding that this Agreement constitutes a contract solely between Client and Wellmark, which is an independent corporation operating under licenses from the Blue Cross and Blue Shield Association, an association of independent Blue Cross and Blue Shield Plans (BCBSA), permitting Wellmark to use the Blue Cross and Blue Shield Service Marks in the states of Iowa and South Dakota, and that Wellmark is not contracting as the agent of BCBSA. Client, on behalf of itself and its participants, further acknowledges and agrees that it has not entered into this Agreement based upon representations by any person other Than Wellmark and that no person, entity, or organization other than Wellmark shall be accountable or liable to Client for any of Wellmark's obligations to Client created under this Agreement. This section shall not create any additional obligations whatsoever on the part of Wellmark other than those obligations created under other provisions of this Agreement. Section 5.17. Counterparts This Agreement may be executed in counterparts or duplicate originals, each of which shall be regarded as an original, but all of which shall be considered one and the same instrument. Section 5.18. Entire Agreement This Agreement and the Addenda attached hereto constitute the full and complete understanding and agreement of' the parties relating to the subject matter hereof and supersede all prior understandings and agreements relating to such subject matter. Any waiver,modification, or amendment of any provision of this Agreement shall be effective only if in writing and signed by both parties. The provisions of this Agreement shall prevail over any additional or different provisions in a Client purchase order, acceptance notice, or other similar document, which provisions shall be of no force or effect. If there is any inconsistency between the terms of this Agreement and the terms of any Business Associate Contract or Business Associate Agreement entered into between the parties hereto (as an Addendum or otherwise), the terms of such Business Associate Contract or Business Associate Agreement shall control. Section 5.19. Survival The following Sections shall survive the termination of this Agreement: Exclusion from Services, Intellectual Property, Warranty, Indemnification, Limitation of Liability, Confidentiality, Records Maintenance and Disposition, Governing Law, Consent to Jurisdiction, Entire Agreement, Waiver of Jury Trial and Survival. 9 Section 5.20. Consent to Jurisdiction Each of the parties hereby irrevocably submits to the exclusive jurisdiction of any United States District Court or Iowa District Court sitting in Des Moines, Iowa in any action or proceeding arising out of or relating to this Agreement, and each party hereby irrevocably agrees that all claims in respect of such action or proceeding shall be heard and determined in either of such courts. Each of the parties irrevocably waives any objection, including without limitation, any objection on the grounds of forum nonconveniens, which it may now or hereafter have to the bringing of any such action or proceedings in such respective jurisdictions, In addition, the parties agree that neither of them shall commence any action arising out of or relating to this Agreement in any court other than the United States District Coma or the Iowa District Court silting in Des Moines, Iowa. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF THE PARTIES IN THE PERFORMANCE OR ENFORCEMENT HEREOF. Accepted and Agreed To: For Chen B Title: /M 4/yeC/OP Date: Sh6 f d, 3 10 For Wellmark, Inc. By: Title: Vice President, Chief Procurement Officer Date: ADDENDUM B TO MASTER SERVICES AGREEMENT FLEXIBLE SPENDING ACCOUNT This Addendum B to the Master Services Agreement ("Addendum") is entered into by and between City of Waterloo ("Client") and Wellmark, Inc. ("Wellmark") effective as of July I, 2023("Effective Date") in connection with that certain Master Services Agreement dated July I, 2023 between Wellmark and Client (the "Agreement"). In case of a conflict between This Addendum and the Agreement, this Addendum shall supersede. In case of a conflict between this Addendum and any Business Associate Agreement or Business Associate Contract between Client and Wellmark, the Business Associate Agreement or Business Associate Contract shall control. Capitalized terms usecl but not defined in this Addendum have the meaning ascribed to them in the Agreement. Client has established a health and/or dependent care flexible spending arrangement ("FSA") as set forth in the Agreement. Client, as plan administrator of the FSA, remains responsible for maintaining and operating the FSA, including paying all benefits owed or established under the FSA to its participants. Wellmark and/or Service Provider shall provide certain administrative services with respect to the FSA as set forth below and under the terms and conditions provided herein: 1. Definitions 2. Fees The following terms shall have the following meanings in this Addendum: "Account" means the notional accounts created for the health FSA and/or dependent care FSA to track the credits and disbursements of each Participant under the applicable FSA. Separate Accounts shall be created for a Participant's participation in a health FSA and a dependent care FSA, as well as for each applicable plan year. "Available Benefits" means (I) for a health FSA the Participant's annual election for the plan year less the aggregate amount previously paid or reimbursed for the plan year, and (2) for a dependent care FSA, the aggregate amounts previously credited to the FSA Account from the Participant's paycheck for the plan year as reported by Client less the aggregate amount previously paid or reimbursed for the plan year. "Participant" means each individual (e.g., employee, former employee, who has an FSA Account as determined by Client and reported to Wellmark and/or Service Provider. "Monthly Service Fees" means the fees set forth in Section 2 of this Addendum. a. Administration Fee The Administration Fee is $0.00. The administration fee shall be paid prior to the execution date of the Agreement or such other date as agreed to by the Parties to the Agreement. Wellmark reserves the right to make rate changes with thirty (30) days notice prior to any annual automatic renewal. b. Monthly Service Fees The FSA "Monthly Service Fee" is $4.75 per participant per month (PPPM)*. *PPPM means Per Participant per Month and applies to each individual with at least one account election. For example, an individual who enrolls in both the health FSA and Addendum B Page I FSA Services for Client dependent care FSA would be charged as one participant. The fee will be charged for any month within a plan year that the account exists.Wellmark reserves the right to make rate changes with thirty (30) days notice prior to any annual automatic renewal. If Client informs Wellmark of its intention to terminate prior to the end of their plan year, and Client requests Well mark to administer the Run out Period and Grace Period (as defined below), Wellmark will do so and may charge a fee for such administration. "Run out Period" means the period after the close of the plan year in which claims may be submitted by an Employee or other beneficiary. This period is defined and established by the Client, and may be changed for future plan years by the Client if the change is made before the new plan year begins. "Grace Period" means the amount of time (but no more than 2-1/2 months) following the close of the plan year that a Participant may incur eligible expenses for reimbursement and during which the eligible expenses may be applied against the Employee's FSA Account for the prior plan year, and to the extent the balance of the Employee's FSA Account is exhausted for the prior plan year will be applied to the balance of the Employee's FSA Account for the current plan year (i.e., the plan year in which the expense is incurred) if the Employee has enrolled for an FSA Account for that year. c. Run -Out Administration Wellmark shall provide FSA claim processing services following the Agreement's termination for eligible claims incurred prior to the termination of the Agreement. Such run - out services shall not last longer than the end of the Run -Out Period for the plan year in which the Agreement terminates. All of the terms of this Addendum shall apply to the post - termination run -out services. However, Wellmark shall not provide the run -out services after the Agreement's termination if the Agreement was terminated because Client failed to pay Monthly Service Fees clue, Client failed to provide the benefit claims funding required under Section 3 and the applicable related appendix, or for any other material breach of the Agreement or any Service Provider Agreement. 3. Benefit Claims Funding All funding shall be provided pursuant to the Funding Agreement executed between Client and Service Provider. Neither Well mark nor Service Provider shall be liable or use its own funds for the payment of benefits under the FSA, including, without limitation, where sought as damages in an action against Client, Well mark, Service Provider or the FSA. Wellmark and Service Provider do not insure nor underwrite Client's liability to provide benefits under the FSA, and Client shall have the sole responsibility and liability for payment of all benefits under the FSA. 4. Administrative Service Fee Invoice and Payment Wellmark shall deliver monthly invoices for Monthly Service Fees via paper or electronically (e- mail or web accessible) to Client. All payments for Monthly Service Fees are due on the due date set forth on the invoice. Addendum B Page 2 FSA Services for Client 5. FSA — Specific Scope of Administrative Services As provided in Section 1.02 of the Agreement, Client acknowledges and agrees that: (i) Wellmark intends to contract with a Service Provider for the performance of some or all of the Services hereunder; (ii) any or all obligations of Wellmark hereunder may be subcontracted and delegated to Service Provider, in Wellmark's discretion; (iii) the Services provided by Service Provider on behalf of Well mark may be provided directly to Client, in Wellmark's discretion; and (iv) Client may be required to interact directly with Service Provider with respect to one or more obligations of Client hereunder, as directed by Wellmark. a. Enrollment and Processing Enrollment Files Client shall be solely responsible for determining the individuals who are eligible to participate in the FSA Client shall provide Wellmark with a complete list of all Participants eligible to participate in the FSA, and any demographic or other information that Wellmark may need to properly administer the FSA pursuant to this Agreement. Client shall notify Well mark on a monthly basis (or such shorter time period as agreed to by the parties) ofany changes in Participant information. All Participant information shall be provided to Wellmark in an electronic format pursuant to Section 5(c). Wellmark shall process all data file(s) within a commercially reasonable time after receipt. In determining any person's eligibility under the Plan, Wellmark shall rely on the eligibility information furnished by the Client, and any signed statements by Participants. It is mutually understood that the effective performance of this Agreement by Wellmark will require that the Client advise it on a timely basis during the continuance of this Agreement of the identity of individuals eligible for benefits under each of the respective Plans. Information modifying a Participant's eligibility or status or election under either Plan shall identify the effective date of eligibility and the termination date of eligibility and shall be provided (via fax, mail, e-mail, electronic submission, or Interactive Voice Response system) prior to the effective date of such modification in order to be considered by Wellmark in making benefit determinations hereunder. If Client determines that Wellmark has incorrectly applied the eligibility provisions of the applicable Benefit Plan and informs Wellmark in writing, all future transactions will be processed according to Client's interpretation as stated in writing. Client shall indemnify and hold Wellmark, Service Provider and their respective directors, officers, employees and agents harmless from and against any and all claims, damages, expenses, losses or other obligations or liabilities arising out of or relating to the processing of transactions based on Client's interpretation. Late notification of FSA eligibility or incorrect FSA eligibility information provided by Client to Wellmark may result in erroneous benefit claim payments. In this event, Client shall be solely responsible for any such erroneous payment and Client shall also be solely responsible for collecting any such erroneous payments from the individual. b. Services Available to FSAs Wellmark may provide Bill Payment Services, Reimbursement Services and the Card Services (as those terms are defined below) for Client's FSA. The maximum payment pursuant to any or all mechanisms shall be limited to the Available Benefits at the applicable time. Addendum 13 Page 3 FSA Services for Client Bill Payment Services "Bill Payment Services" (referred to as "Pay My Provider" on Service Provider's website) means services under which Well will pay FSA eligible expenses described in this Agreement on behalf of a Participant. Payment will be made via a check or other electronic funds transfer directly to the health care or dependent care provider. Only payee information inserted on Service Provider's web site or provided through direct contact with customer service representatives during normal business hoofs will be acted upon. Mail, fax, electronic mail, or voicemail directions will not be processed. ii. Card Services "Card Services" means the services under which Wellmark will pay FSA eligible expenses described in this Agreement on behalfofa Participant. Payments will be made directly to the health care provider, drugstore or other qualifying entity via debit card (a plastic, magnetically coded card with preset spending limits). The operation and the terms and conditions of debit cards are set forth at https://www.wageworks.com/empl oyers/terms-and-conditions/wageworks©-debi t- card-program.aspx. Card Services shall not be available for dependent care FS A benefits. Reimbursement Services "Reimbursement Services" (referred to as "PayMeBack" on Service Provider's website) means services under which Wellmark will reimburse FSA eligible expenses described in this Agreement on behalf ofa Participant. Reimbursements shall be made to Participants via a check or direct deposit. Claims may be submitted by Participants through one or both of the following methods: Participants may submit paper -based claim forms to Wellmark for adjudication. Wel I mark shall post the time and manner for submitting paper -based claims on the website accessible by Participants ("Participant Site"). At the election of Client, Wellmark will reimburse Participants for expenses reported to Wellmark by the medical plan carriers (known as Automatic Health Plan Claim or ("AHPC"). Wellmark will deem all claims provided by such carriers as eligible medical expenses without further adjudication. Client agrees that it is responsible for ensuring that such medical plan carriers provide timely, accurate and complete data files in the format and method specified by Wellmark (e.g., posting to a SFTP). This reimbursement method shall not be available for dependent care FSA benefits. iv. Ordering Rule If the Available Benefits are not sufficient in a Participant's Account on any given day, the order of payments processed shall be claims pursuant to Card Services first, if there is any amount remaining thereafter, claims pursuant to Reimbursement Services second, and if there is any amount remaining thereafter, claims pursuant to Bill Payment Services last. To the extent that a Participant's Account has an amount of Available Benefits for some but not all claims within a particular services category, claims will be paid or reimbursed in the order received. No claim shall be paid or reimbursed that would allow a Participant's Account to be negative. Addendum B Page 4 FSA Services for Client c. Reports Wellmark will make standard reports available for viewing and for download from a Client- accessible website, including a summary of expenditures claimed by the Participants, the number of Participants, and the total amount of benefits paid or reimbursed, for each FSA as applicable. In addition, Client shall have access to a website where individual Participant Account transaction details may be viewed ("Service Site"). Because the Service Site contains individual health information and other personal information, Client shall be solely responsible to control the access to the Service Site based on its own internal confidentiality and HIPAA privacy policies and procedures. d. Claims Processing and FiducraryDuties Client agrees that Client but neither Well mark nor Service Provider is the plan administrator of the FSA as such term is described under ERISA or the Code. Neither Wellmark nor Service Provider shall have power or authority to waive, alter, breach or modify any terms and conditions of the FSA. Further, Client aees that Client but neither Wellmark nor Service Provider is the claims fiduciary of the FSA, as such term is used u nder ERISA. Wellmark and/or Service Provider shall make payments or distributions in accordance with the framework of policies, interpretations, rules, practices and procedures set forth in the FSA and as otherwise agreed upon or directed by Client. Wellmark and/or Service Provider shall neither have nor shall be deemed to exercise any discretion, control, or authority with respect to the disposition of Available Benefits. Wellmark agrees that it shall perform services on behalf of the FSA, only as set forth in this Addendum. Other than appeals of denied claims, no claims are accepted after the end o f the applicable Run- out Period. Based upon the foregoing, Client hereby assigns to Wellmark (and Service Provider, as the case may be) the following: Initial Claims for Health Care FSA Clairns for FSA benefits must be submitted in a form that is satisfactory to Wellmark. Wellmark shall determine whether a benefit is payable under the FSA's provisions as based on the terms of this Addendum and as mutually agreed to by Wellmark and Client. Client shall provide to Wellmark the applicable summary plan descriptions and plan documents for Wellmark to review and to assist in processing claims for the FSA. Wellmark shall use claim procedures and standards developed by Wellmark for benefit claim determination, which for a health care FSA shall be in compliance with Section 503 o f ERISA and the regulations promulgated thereto with respect to initial claims for benefits. ii. Appeals for Health Care FSA For a health care FSA, Client represents that the FSA plan documents and summary plan description shall provide for a 2-stage appeal process pursuant to the provisions of Section 503 of ERISA and the regulations promulgated thereto. Wellmark shall process the first appeal using claims procedures and standards developed by Wellmark for benefit claim determinations, which are in compliance with Section 503 of ERISA and the regulations promulgated thereto with respect to appeals of denied claims for benefits. However, the second and the final appeal shall not be the responsibility of Wellmark but shall be processed and be the responsibility of Client or the plan administrator of the FSA. Addendum B Page 5 FSA Services for Client Accordingly, because Wellmark does not process the final appeal, Wellmark shall not be the claims fiduciary with respect to the FSA. Claims and Appeals for Dependent Care FSA Claims for dependent care FSA benefits must be submitted in a form that is satisfactory to Wellmark. Wellmark shall determine whether a benefit is payable under the FSA's provisions as based on the terms of this Addendum and as mutually agreed to by Wellmark and Client. Client shall provide to Wellmark the applicable descriptions and plan documents for Wellmark to review and to assist in processing claims for the dependent care FSA. Wellmark shall use its claim procedures and standards developed by Wellmark for benefit claim determinations. Wellmark shall process one appeal of a denied dependent care claim using procedures and standards developed by Wellmark for benefit claim determinations and appeals. Any additional appeals thereafter shall be the responsibility of Client. 6. Additional Services a. Communications Materials Wellmark will provide access to an online communications gateway ("Gateway") where Client may access and download standard electronic communications material at no additional charge. Certain quantities of standard printed communications may also be available at no additional charge. Customized items are available for additional fees, and Client agrees to pay bulk sales or similar taxes (if any), shipping and handling for any standard or customized material orders. Notwithstanding the foregoing, it is Client's responsibility to ensure that the stumnary plan descriptions, plan documents and any other documentation relating to the FSA are appropriately completed, are in compliance with the requirements of the FSA and applicable law, and are appropriately and timely adopted by Client. Client shall be solely responsible for distributing summary plan descriptions, summaries of material modification and any other documentation with respect to the FSA to Participants on a timely basis as provided by applicable law. Client shall also be solely responsible for complying with HIPAA, COBRA and ERISA with respect to the FSA and making any filing with the appropriate governmental agencies, including the Department of Labor and the Internal Revenue Service with respect to the FSA. b. Assistance in Enrollment Meetings Upon Client's request, Well mark will participate in enrollment meetings and benefit fairs at an additional charge. c. File and Data Exchange Wellmark shall provide a set of electronic file specifications for Client to deliver data to Wellmark. Client is responsible for developing the routines, programs, and other means in which to deliver electronic data to Wellmark. The parties will exchange test data to ensure that they can receive and process each other's files, Wellmark shall also work with any other third party vendor hired by Client to provide such data to Wellmark, provided that Wellmark reserves the right to require such third -party vendor to enter into a dta sharing agreement with Wellmark prior to exchanging any data. Addendum B Page 6 FSA Services for Client d. Adjudication of Eligible Expenses Wellmark shall determine whether an expense is qualified under the Internal Revenue Code and regulations thereunder, and any IRS written rulings, notices, and advisories based on rules and procedures developed by Wellmark. By entering into this Agreement, Client has authorized and instructed Wellmark to implement its standard administrative procedures to provide services in accordance with this Addendum and the Agreement, Client and Wellmark agree that if Client provides Wellmark with specific written instructions (in a form acceptable to Wellmark) to provide services in a manner other than in accordance with Well mark standard procedures, Wellmark may (but is not required to) comply with Client's written inst ructions. However, to the extent that Well mark complies with such instructions, Client and not Wellmark shall be solely responsible for Wellmark's actions so taken, Client expressly releases all claims against Wellmark in connection with any claim or cause of action that results from or in connection with Wellmark following Client's written instructions and Client shall indemnify and hold Wellmark harmless (including reasonable attorneys fees and costs) for any claims, losses or other damages that results from or in connection with Wellmark following Client's written ins0ructions. e. Participant Call Center Monday through Friday from 7:00AM CT to 7:00PM CT, excluding holidays and other non- business days, customer service representatives will be available to answer phone calls regarding the administration of the benefits selected by Client. Outside these hours, Participants may access the Participant Site or use an interactive voice response unit. f. Client Services Client Services shall be available to answer phone calls from Client HR representatives on issues such as employee case escalation, file transfer errors, and using the Service Site. The hours of operations are 7:00AM CT to 7:00PM CT, Monday through Friday, except for holidays and other non -business days. 7. No Refunds for Benefits Delivered Wellmark will not provide or negotiate for refunds of unused services or unneeded items. Wellmark is not responsible for determining whether a Participant received a cash refund from a merchant or provider for items or services originally purchased or paid for using a debit card. In addition, Wellmark shall not be responsible for negotiating or procuring on behalf of Employee dependent care services or medical services or products. Employees must obtain or negotiate for such services on behalf of themselves (e.g.,an Employee must first ensure that a child care provider will accept the Employee's child prior to establishing Bill Payment Services for that provider). Client is solely responsible for making the FSA whole if fraud is committed against the FSA by Participants or other individuals. Welltnm'k shall not be responsible for identifying, pursuing or correcting any fraudulent actions by Participant. Addendum B Page 7 FSA Services for Client