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HomeMy WebLinkAboutContract 47460 GPID 25345 Employer Tax ID 75-6000528 Reimbursement Account Administrative Services Agreement CITY SECRETS 7L� g CONTRACT NO. This Administrative Services Agreement("Agreement") is entered into by City of Fort Worth ("Employer") and Discovery Benefits, Inc. ("DBI") as of 01/01/16 ("Effective Date"). Recitals The Employer has adopted an Internal Revenue Code Section 125 Cafeteria Plan ("125 Plan")for its eligible employees. Employer has also adopted one or more of the following: a health flexible spending arrangement("Health FSA"), a dependent care flexible spending arrangement("Dependent Care FSA") (a Health FSA and a Dependent Care FSA shall be referred to collectively as an "FSA"), a limited purpose health flexible spending arrangement("Limited Health FSA"), a health reimbursement arrangement("HRA"), a limited purpose health reimbursement arrangement(Limited HRA) and/or a qualified transportation fringe benefit plan under Code Section 132(f) ("Transportation Account" or"TSA"). Collectively, the foregoing arrangements and plans shall be referred to as the"Plan." The Employer desires DBI to assist in the administration of the Plan, and DBI desires to assist the Employer in the administration of the Plan on the terms outlined below. Therefore, the Employer and DBI agree that DBI shall assist in the administration of the Plan on the following terms: • The Employer has established the Plan for the exclusive benefit of its employees. • The Employer is the administrator of the Plan. • DBI acts as an agent on behalf of the Employer. The Employer remains responsible for maintaining the Plan, including the establishment of eligibility and paying all benefits owed or established under the Plan to its participants; DBI is to provide the agreed upon services to the Plan,without assuming any liability beyond the performance of services as set forth below. Now therefore, in consideration of good and valuable consideration, the parties agree as follows. Article 1 -Benefits Administrative Services Services provided by DBI in the administration of the Plan shall include the following: 1.1 Plan Administration DBI shall assist the Employer in the administration of the Plan as provided in this Agreement. The specific Plans that DBI shall assist with and that are covered by this Agreement are listed in Exhibit A. If a Plan is not covered by this Agreement as provided in Exhibit A, then DBI shall have no responsibilities or duties with respect to such non-covered Plan. DBI's duties with respect to the Plan shall be limited to those expressly provided in this Agreement or subsequently agreed to in writing by DBI and the Employer. 1.2 Plan Documents DBI shall assist the Employer in the establishment and operation of the Plan by providing sample documents for review by the Employer's legal counsel, including a sample plan document, summary plan description and other documents relating to the administration of the Plan. It is the Employer's responsibility to ensure that the documents are legally compliant for purposes of the Employer's needs and business, are appropriately completed, are in compliance with the requirements of the Employer's Plan and are appropriately and timely adopted by the Employer. The Employer shall provide DBI with an executed copy of the plan document. 1.3 Plan Document Compliance DBI shall provide a sample plan document, summary plan description and other applicable documentation,which shall be up- to-date based on any legal or regulatory requirements then in effect, and DBI's internal policies and procedures, which may be changed by DBI from time to time. Periodically, DBI shall provide necessary Plan amendments to the sample Plan documents for review by the Employer's legal counsel. If the Employer provides its own plan document and/or summary plan description, DBI shall not be obligated to provide any amendments or updates other than those described in the preceding sentence. It is the Employer's responsibility to ensure that the amendments and other revisions are legally compliant for the Employer's purposes, are appropriately completed, are in compliance with the requirements of the Employer's Plan and are appropriately and timely adopted by the Employer, 1.4 Record-Keeping DBI shall assist the Employer in the development and maintenance of administrative and record-keeping systems for the Plan. The recordkeeping services are listed in Exhibit A. 1.5 Reporting Obligations DBI shall provide general information regarding reporting and disclosure requirements relating to the Plan and shall provide the Employer with information reasonably available to DBI that is necessary for the Emplohe annual Form 7, n F 11,, fIn','TH,, I' . a Reimbursement Account Administrative Services Agreement 5500. DBI shall not be responsible for the accuracy of any information provided by the Employer in preparation of any of these reports nor shall DBI be responsible for determining the level of compliance required by the Employer's Plan. It is the sole responsibility of the Employer to assure compliance with all legal reporting and disclosure requirements. 1.6 Forms DBI shall provide administrative forms for the Employer's use in administering the Plan. Administrative forms are available on the Internet at www.discoverybenefits.com. All forms and user guide information shall be subject to periodic updates and revisions. DBI shall also provide instructions and forms for the processing of benefit claims under the Plan. 1.7 Plan Payments Using funds received from the Employer, DBI shall pay the amounts due as a result of the operation of the Plan and in compliance with the participant's current Plan elections. 1.8 Claims Processing DBI shall process claims received from Employer or Plan participants on a daily basis Monday through Friday, during regular business hours(6:00 a.m.to 9:00 p.m. Central Time Monday through Friday, excluding holidays). DBI shall arrange for the payment of approved reimbursement requests as provided in the Plan. DBI shall consider any initial claims for benefits made under the Plan, provided the claim is in accordance with the Plan, the summary plan description and any reasonable rules established by DBI and communicated to participants. DBI shall grant or deny each participant's initial claim for benefits after making such investigation, as it deems necessary. a) If DBI finds that a participant is entitled to the benefits under the Plan, DBI shall arrange for the proper payment from the Plan, using the funds provided by the Employer. b) To the extent that DBI provides written non-English assistance to a participant during the course of claims processing as required by required Section 503 of ERISA and 29 C.F.R. § 2590.715-2719 as applicable, Employer shall, to the extent permitted by law, reimburse DBI for the related fees and expenses, if any. c) DBI shall establish a procedure to receive appeals of initial denials of benefit claims. DBI shall be responsible for making the decision to allow or deny all appeals of denied benefit claims and for notifying each participant of the decision regarding the appeal consistent with Section 503 of ERISA and 29 CFR§2590.715-2719, if applicable. In making the decisions regarding claims for benefits and appeals of denied claims, DBI shall have discretionary authority to construe and interpret the terms of the Plan and to determine whether a claim is properly payable under the Plan. Notwithstanding anything herein to the contrary, the Employer shall be responsible for making any and all eligibility determinations. All remaining fiduciary duties under this Agreement are the responsibility of Employer. 1.9 Monthly Reports DBI shall render reports to the Employer,which include the following: • Employer Funding Report—Frequency is dependent on funding method (daily or monthly) • Payment History Report—On demand • Enrollment Report—Monthly and on demand • Account Balance Detail Report—Monthly and on demand • Payroll Deduction Report—Timing based on payroll frequency for auto-post groups • A monthly statement of the fees due to DBI 1.10 Custodial Account Funds provided to DBI by the Employer for the payment of Plan benefits ("Employer Funds") shall be held in a Custodial Account pursuant to Article 3 of this Agreement. 1.11 Forfeited Funds Except for those amounts which are subject to carryover, if elected by the Employer in accordance with IRS Notice 2013-71, all amounts that remain unpaid for a Flexible Spending Account or Transportation Account after the end of the period specified by the applicable Plan during which the participant can make a claim, plus any periods for appeal or any claim dispute, shall be immediately forfeited by participant to the Employer, minus any applicable fees and expenses that are owing to DBI pursuant to this Agreement(or any other agreement between the Employer and DBI)provided that reasonable notice is first given to Employer of such deduction of fees. Any unclaimed amounts, including any previous reimbursement checks or other similar methods of payment that have been issued but remain unendorsed or uncashed, and that remain unpaid after the end of the run-out period selected by the Employer, shall be returned to the Employer, minus any applicable fees and expenses that are owing to DBI pursuant to this Agreement(or any other agreement between the Employer and DBI) provided that reasonable notice is first given to Employer of such deduction of fees. The direct terms of an applicable Plan document may alter the forfeiture provisions of this subsection with respect to only a Plan participant. 2 Reimbursement Account Administrative Services Agreement 1.12 Fidelity Bonds DBI shall maintain a fidelity bond or another similar insurance policy in the amount of$5,000,000.00 for DBI and any of its employees who may collect, disburse, or otherwise handle or have possession of any funds provided by the Employer or who may have the authority to order disbursements or payments on behalf of the Plan. 1.13PIan Data a) DBI agrees to retain for eight(8)years Employer Plan records under this Agreement, including without limitation records of all assets and transactions involving the Custodial Account. Upon termination of this Agreement, DBI will maintain Employer's records in an electronic format up to eight(8)years. b) Following the Agreement's termination and provided all fees have been paid, DBI will cooperate with Employer(or Employer's subsequent service provider)to effect an orderly transition of services covered by the Agreement and will release to Employer(or Employer's subsequent service provider), in DBI's standard format, a copy of all data, records and files regarding qualified beneficiaries within a reasonable time period following the termination date. All reasonable costs associated with the release of data, records and files from DBI to Employer shall,to the extent permitted by law, be paid by Employer, c) Upon termination of this Agreement, DBI will be entitled to retain a copy of all"Information"(as defined in Section 2.15(a)), including any data, records and files released by DBI pursuant to Section 1.13(b), and will be entitled to continue to use and disclose such Information for claims,audit, and legal and contractual compliance purposes to the extent permitted by law. 1.14 Notice of Litigation DBI shall notify the Employer promptly of any summons, complaint,or other communication concerning threatened litigation and any inquiry by any governmental agency that is related to the Employer's Plan, unless such notification would be a violation of applicable law. 1.15 Confidentiality DBI shall keep confidential all information it obtains concerning the Plan. Other than in due course of business, such information must not be disclosed without prior approval of the Employer or as otherwise provided for in Article 4. 1.16 Claims Fiduciary DBI has a fiduciary duty only to the extent described in Section 1.8. All remaining fiduciary duties under this Agreement are the responsibility of the Employer. 1.17 Disclaimer DBI shall not be liable or use its funds for the payment of benefits under the Plan, including,without limitation,where sought as damages in an action against the Employer, DBI or the Plan. DBI does not insure or underwrite the Employer's liability to provide benefits under the Plan, and the Employer shall have the sole responsibility and liability for payment of all benefits under the Plan. 1.18 Audit During the term of this Agreement, and at any time within one(1)year following its termination, the Employer or a mutually agreeable entity may audit DBI to determine whether DBI is fulfilling the terms of this Agreement with respect to processing claims for benefits. The place,time,type, duration, and frequency of all audits must be reasonable and agreed to by DBI. All audits shall be limited to claims information relating to the calendar year in which the audit begins and/or the immediately preceding calendar year. The Employer shall, to the extent permitted by law, pay or cause to be paid any expenses that it incurs in connection with the audit. With the exception of an Audit performed by the City's Auditor,Audits will be subject to the following additional requirements: a) Audits must be completed within one(1)year following the date the audit begins. b) The Employer may utilize individuals to conduct audits on its behalf who (i)are qualified by appropriate training and experience for such work; (ii)will perform its review in accordance with published administrative safeguards or procedures against unauthorized use or disclosure(in the audit report or otherwise)of any individually identifiable information (including health care information)contained in the information to be audited; and (iii)will not make or retain any record of payment identifying information concerning treatment of drug or alcohol abuse, mental/nervous or HIV/AIDS or genetic markers, in connection with any audit. There must be no conflict of interest which would prevent the auditor from performing an independent audit. Auditors may not be compensated on the basis of a contingency fee or a percentage of overpayments identified. 3 Reimbursement Account Administrative Services Agreement c) Audits are subject to any related proprietary and confidentiality requirements protecting the nature of the data, and before the audit commences the Employer and any independent third party auditor shall execute a confidentiality agreement the scope of which shall be reasonable and shall be negotiated by all parties involved. d) The Employer shall provide at least sixty(60)days advance notice of its intent to audit in writing. At least four(4)weeks in advance of commencement of the audit,the Employer or its representative will provide DBI with a complete and accurate listing of the transactions to be pulled for the audit. e) Prior to the audit,the auditors will provide a listing of the transactions selected for testing and the specific service for which each item is being tested. The sample must be based on a statistical random sampling methodology(e.g., systematic random sampling, simple random sampling, and stratified random sampling). DBI will provide timely inquiry and feedback at the time of the proposed audit regarding the sample size and sampling methodology as it relates to the objective of the audit proposed by the Employer or its representatives. f) If a third party auditor is utilized,the auditors will then provide their draft audit findings to DBI, in writing, before a final audit report is presented to the Employer. This draft will provide the basis for discussions between DBI and the auditors to resolve disagreements and summarize the audit findings. DBI shall have a right to review the final Audit Report, before delivery to the Employer. Auditors shall provide DBI with a copy of the final audit report delivered to the Employer and DBI shall have the right to include with the final Audit Report a supplementary statement containing facts that DBI considers pertinent to the audit. 1.19 Red Flags Rule Compliance To the extent applicable, DBI shall comply with the Red Flags Rule with respect to the Covered Services. For purposes of this provision, (a)"Red Flags Rule"means the regulations adopted by various federal agencies, including the Federal Trade Commission, in connection with the detection, prevention and mitigation of identity theft, and located at 72 Fed. Reg. 63718 (November 9, 2007), as amended, and (b) "Covered Services"means the services provided by DBI (if any)with respect to the Plan, as designated in Exhibit A and described in Exhibit C,that allow Plan participants to pay for eligible expenses under the Plan with a debit or other stored-value card and any other services provided by DBI under this Agreement that are covered by the Red Flags Rule, as determined by DBI in its sole discretion. As a part of the Red Flags Rule compliance, DBI shall adopt, maintain and use appropriate and commercially reasonable rules, procedures and safeguards to detect and identify red flags and to prevent and mitigate identity theft, as required by the Red Flags Rule. Such rules, procedures and safeguards shall be set forth in a written program that complies with the Red Flags Rule(the"Red Flags Program"). DBI shall, upon request, make available to Employer a copy of its Red Flags Program. The parties agree that if a Breach of Unsecured PHI (as defined in the Business Associate Agreement between the parties)and a violation of the Red Flags Rule occur with respect to the same incident, both the Red Flags Rule and the Business Associate Agreement provisions shall apply, except that the notice requirements of the Business Associate Agreement shall satisfy any notice obligations of this section. 1.20 Overpayments If DBI determines that it has paid Plan benefits to an ineligible person or for more than the appropriate amount, DBI shall undertake a good faith effort to recover such erroneous payment. DBI shall have the sole discretion to determine what constitutes a"good faith effort"for purposes of this provision,which efforts may vary from time to time according to the circumstances of the overpayment, but may include DBI's attempt to contact the participant twice via letter, phone, email or other means regarding the recovery of the payment at issue. The Employer shall cooperate fully with DBI's efforts to recover overpayments of Plan benefits pursuant to this Section 1.20. 1.21 External Review To the extent that the external review requirements set forth in 29 CFR§2590.715-2719, shall apply to the Plan, DBI shall serve as a conduit for external review requests. In that regard, DBI shall send appropriate information to, and shall cooperate fully with,the external review organization conducting the review. Any fees and/or expenses related to a request for external review shall,to the extent permitted by law, be paid by the Employer. If DBI pays any such fee or expense on behalf of Employer, Employer shall,to the extent permitted by law, reimburse DBI promptly upon request. Article 2-The Employer's Responsibilities Responsibilities of the Employer in the administration of the Plan shall include the following: 2.1 General Compliance Although DBI serves as Employer's agent for services rendered pursuant to this Agreement,the Employer remains solely responsible for all Plan activities, including compliance with the Patient Protection and Affordable Care Act of 2010("ACA"), Employee Retirement Income Security Act of 1974("ERISA"), the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"),the Internal Revenue Code, (the"Code"), and other applicable laws or regulations. 4 Reimbursement Account Administrative Services Agreement 2.2 Participants The Employer shall provide DBI with a complete list of all employees eligible to participate in the Plan, and any other demographic and related information that DBI may need to properly administer the Plan pursuant to this Agreement. Employer shall notify DBI on a monthly basis of all changes in its employees eligible to participate in the Plan. Employer shall be responsible to collect and provide to DBI in an electronic format all required information to ensure compliance with the MSP Secondary Payor rules and regulations where DBI acts as a Responsible Reporting Entity(RRE)for HRA plans offered by Employer. Employer shall be solely responsible for determining its employees who are eligible to participate in the respective Plans, collecting the requested information from employees and informing DBI of such affected or eligible employees. 2.3 Contributions The Employer shall contribute funds into the Custodial Account to be used to pay Plan benefits or other Plan expenses as agreed to herein and in accordance with the Plan. Contributions to the Custodial Account shall consist solely of general assets of the Employer. Participant contributions, if any, made by employees to the Plan through salary reduction or otherwise, shall be used to reimburse Employer for contributions advanced by the Employer to pay benefits under the Plan. 2.4 Enrollment The Employer shall assist in the enrollment of the employees in the Plan, cooperate with DBI with regard to proper settlement of the claims and transmit any inquiries pertaining to the Plan to DBI. Late notification of Plan eligibility or incorrect Plan eligibility information provided by the Employer to DBI may result in erroneous Plan benefit payments. In this event,the Employer shall be solely responsible for any such erroneous payment and the Employer shall also be solely responsible for collecting any such erroneous payments from the employee. If there are insufficient Employer funds that are available to restore the erroneous payments or the requested reimbursement of funds would otherwise cause the Minimum Account Balance deposit to become insufficient, DBI has the right to request immediate restoration of funds from the Employer directly and suspend or terminate all services under this Agreement. 2.5 Amendments The Employer shall provide DBI with a copy of any contemplated amendment to the Plan no less than thirty(30)days prior to the anticipated amendment effective date. However, under no circumstances may the Employer adopt any amendment that would alter DBI's duties hereunder without prior written consent of DBI. In addition, DBI shall have no obligation to provide any Plan amendments or updates to the Employer other than as described in Section 1.3. 2.6 Plan Documents The Employer shall file with the appropriate governmental agencies all required returns, reports, documents and other papers relating to the Plan. The Employer shall distribute to participants all materials and documents as may be necessary or convenient for the operation of the Plan or to satisfy the requirements of applicable law and the Employer shall remain responsible for the final contents of all materials and documents. 2.7 Summary Plan Description The Employer shall distribute to its employees participating in the Plan a copy of the summary plan description and/or the Summary of Benefits and Coverage. 2.8 Non-discriminatory Plans—125 Plan and FSA At no additional charge, DBI shall perform the following three quantitative non-discrimination tests based on information provided by Employer: Section 125 25% Key Employee Concentration Test; Section 129 More than 5% Owners Concentration Test; and Section 129 55%Average Benefits test. The standard non-discrimination tests described in the preceding sentence shall be performed twice during the plan year unless the parties agree otherwise. All other non-discrimination tests are the responsibility of the Employer to complete. However, for an additional charge if agreed to in writing by the parties, DBI may provide other non- standard non-discrimination testing services, including re-running a test that is failed. The Employer must provide DBI with the information that DBI needs to perform the nondiscrimination testing services required under this Agreement. This information must be provided in the file format required by DBI. The Employer's HRIS/payroll system is the system of record for non-discrimination testing information, and DBI may rely on the information provided by the Employer in performing any testing. Employer shall maintain a non-discriminatory Plan or, shall be responsible for taking any immediate corrective action required in the event the Plan becomes discriminatory. DBI shall cooperate with the Employer fully to implement any corrective action that is required as a result of the failure or potential failure of one or more applicable discrimination tests. 2.9 Non-discriminatory Plans—HRA All HRA non-discrimination tests are the responsibility of the Employer to complete. However, for an additional charge if agreed to in writing by the parties, DBI may provide non-discrimination testing services for the HRA, including re-running a test that is failed. The Employer must provide DBI with the information that DBI needs to perform the nondiscrimination testing services required under this Agreement. This information must be provided in the file format required by DBI. The Employer's HRIS/payroll system is the system of record for non-discrimination testing information, and DBI may rely on the information 5 Reimbursement Account Administrative Services Agreement provided by the Employer in performing any testing. Employer shall maintain a non-discriminatory Plan or, shall be responsible for taking any immediate corrective action required in the event the Plan becomes discriminatory. DBI shall cooperate with the Employer fully to implement any corrective action that is required as a result of the failure or potential failure of one or more applicable discrimination tests. 2.10 Claims Based Funding RESERVED 2.11 Deduction/Contribution Based Funding Employer has selected Deduction/Contribution Based Funding and shall establish a pre-determined initial deposit(known as the"Minimum Account Balance")within the Custodial Account that will adequately fund the reasonable needs of the Employer's Plan. If the Employer's account balance falls below the Minimum Account Balance amount,the Employer will be notified of the deficiency and will be further required to transfer additional monies until such time the Employer's Minimum Account Balance can be restored. If the Employer fails to immediately restore the Minimum Account Balance, DBI shall have the immediate right to suspend or terminate all services under this Agreement after providing written notice of the deficiency to the Employer(see"Termination"section below). 2.12 Debit Card Payments All participants in the Health FSA, Dependent Care FSA,Transportation Fringe Benefit Plan (TSA)or a comprehensive HRA shall automatically receive one or more debit cards. The terms of the debit card provisions shall control and are incorporated as Exhibit C. 2.13 Ownership of Account Asset All amounts transferred by the Employer to the Custodial Account, as described herein, remain the Employer's general assets. DBI or its representatives shall only be responsible for administering the Employer's funds in accordance with the terms of this Agreement. Amounts transferred by the Employer shall only be disbursed from the Custodial Account by DBI or any of its designees, if it an allowable Plan expense as determined by the Employer or its representative(including DBI), or as otherwise required by a court of appropriate jurisdiction. 2.14 Employee Fraud To the extent permitted by law,the Employer is solely responsible for making the Plan whole if fraud is committed against the Plan by Plan participants or Employer's employees. DBI shall not be responsible for pursuing or correcting any such actions. 2.15 Reliance by DBI (a) DBI shall provide the services in accordance with this Agreement based on Information that is provided to DBI by Employer, any designee or agent of Employer(as designated by Employer). For this purpose, "Information"means all data, records and other information supplied to DBI, obtained by DBI or produced by DBI (based on data, records or other information supplied to, or obtained by, DBI) in connection with performing the services pursuant to this Agreement, including any information provided by the Employer in accordance with Section 2.2, regardless of the form of the Information (e.g., paper, oral, electronic etc.)or the manner in which the Information is provided to DBI. (b) Employer has authorized and instructed DBI in this Agreement to implement its standard administrative forms and procedures to provide services in accordance with this Agreement. DBI's standard administrative procedures may be revised by DBI at any time without notice. Employer acknowledges that DBI will rely upon representations by Employer set forth in this Agreement and communications made by or on behalf of Employer, by officials with authority previously designated by Employer, in effecting its obligations under this Agreement. DBI is entitled to rely on the most current Information in its possession when providing services under this Agreement. DBI is not responsible for any acts or omissions it makes in reliance on: (i)written direction or consent by Employer, any designee or agent of Employer(as designated by Employer)or a qualified beneficiary; or(ii) inaccurate, misleading or incomplete Information. (c) Employer and DBI agree that if Employer provides DBI with specific written instructions (in a form acceptable to DBI)to provide services in a manner other than in accordance with DBI standard forms and procedures, DBI may(but need not) comply with Employer's written instructions. Article 3 -Custodial Account 3.1 Appointment and Acceptance of Custodian By signing this Agreement,the Employer appoints DBI as custodian of Employer Funds for the purposes and upon the terms and conditions set forth in this Agreement, and DBI accepts such appointment and agrees to act as custodian hereunder and to hold any Employer Funds received by and hereunder in accordance with the terms and conditions set forth in this Agreement. 6 Reimbursement Account Administrative Services Agreement 3.2 Custodial Account DBI shall open.and maintain one or more depository accounts(the"Custodial Account")at Bell State Bank&Trust, Fargo, ND (the"Bank")and hold in such Custodial Account all Employer Funds initially transferred by the Employer plus any additional Employer Funds that may be received from the Employer for the Custodial Account from time to time. For administrative convenience and to reduce costs, DBI shall hold the Employer Funds of the Employer together with similar funds from other employers in a single Custodial Account(or one or more Custodial Accounts as determined by DBI). However, DBI shall maintain records as to the exact amount of funds allocated to each employer so that each employer has a legal right to the specific amount of its funds held in the Custodial Account(minus any applicable fees or other costs as set forth in this Agreement). At all times,the assets comprising each employer's funds in the Custodial Account shall be considered a separate subaccount for purposes of this Agreement. Depending upon the context,the term, "Custodial Account,"shall refer to either the separate subaccount for the Employer or all of the subaccounts for all employers in the aggregate. 3.3 Employer Funds DBI and the Employer intend and agree that all Employer Funds transferred by the Employer to the Custodial Account shall be comprised of and shall remain the Employer's general assets. In no event will Employer deposit funds that constitute or include participant or employee contributions to employee benefit plans,whether made by salary reduction or otherwise, as those terms have their general meanings under ERISA. Except to the extent that outstanding checks have been written or withdrawals made against the Custodial Account balance on behalf of Employer,the Employer Funds may be withdrawn by the Employer at any time(minus any applicable fees or other costs as set forth in this Agreement), and are subject to Employer's general creditors in the same manner as funds contributed to Employer's ordinary checking accounts. Notwithstanding the foregoing,this Agreement does not alter or eliminate any separate obligation of the Employer to fund and maintain a Minimum Account Balance in the Custodial Account pursuant to Section 2.11 of this Agreement. 3.4 Disbursements DBI shall make payments or distributions from the Custodial Account in accordance with the framework of policies, interpretations, rules, practices and procedures established by DBI for this purpose, and as set forth in the Plan or as otherwise agreed upon or directed by Employer. DBI shall neither have nor shall be deemed to have any discretion, control, or authority with respect to the disposition of Employer Funds. 3.5 Compensation Employer acknowledges and understands that DBI may receive interest from time to time on the funds held in the Custodial Account and that any such interest received by DBI shall be part of DBI's compensation. Employer acknowledges and understands that compensation otherwise charged by DBI for services under this Agreement would be higher if it did not retain such interest on these funds. The period during which interest may be earned begins on the date the funds are transferred to the Custodial Account and ends when this Agreement terminates. Funds shall be disbursed on a first-in-first-out basis. 3.6 Maintenance of Records Upon the Employer's written request, DBI shall provide the Employer with an accounting of all assets,transfers and transactions involving the Employer's Custodial Account, including description of all receipts, disbursements and other transactions. Bank charges may apply for providing copies of checks,statements or other certified documentation. 3.7 Resignation of Custodian DBI may resign from its duties as custodian pursuant to this Article 3 at any time by giving written notice to Employer no less than sixty(60)days prior to the effective date of such resignation; provided, in any event, that such resignation shall not be effective until a successor custodian has been appointed or the assets in the Custodial Account have been returned to Employer. Article 4-Confidentiality Neither party shall disclose Confidential Information of the other party.The receiving party shall use the same degree of care as it uses to protect its own confidential information of like nature, but no less than a reasonable degree of care,to maintain in confidence the confidential information of the disclosing party.The foregoing obligations shall not apply to any information that: (i) is at the time of disclosure,or thereafter becomes, part of the public domain through a source other than the receiving party; (ii)is subsequently learned from a third party that does not impose an obligation of confidentiality on the receiving party; (iii)was known to the receiving party at the time of disclosure; (iv)was generated independently by the receiving party; or(v) is required to be disclosed by law, subpoena or other process. DBI may transfer Employer's or the Plan's Confidential Information to a governmental agency or other third party,with the same obligations owed to Employer as DBI,to the extent necessary for DBI to perform its obligations under this Agreement or if Employer has given DBI written authorization to do so. For purposes of this paragraph, Confidential Information shall mean any information identified by either party as"Confidential"and/or"Proprietary", or which, under the circumstances, ought to be treated as confidential or proprietary, including non-public information related to the disclosing party's business, employees, service methods, software, documentation,financial information, prices and product plans (including Information as defined in Section 2.15). DBI reserves the right to independently use its experience and know-how, including processes, ideas, concepts and techniques developed in the course of performing services under this Agreement. In no event shall the Parties be held liable for disclosing Confidential 7 Reimbursement Account Administrative Services Agreement Information of the other that is required by law or court order. The Parties will notify the other within ten (10) business days of such request. DBI represents and warrants that it has implemented and maintains a written and comprehensive information security program, and complies with all applicable laws and regulations, including without limitation state privacy and data security laws and regulations, such as the Massachusetts Standards for the Protection of Personal Information of Residents of the Commonwealth (201 CMR 17.00). Article 5-Term of the Agreement The term of this Agreement shall commence as of January 1,2016,the"Effective Date"and shall continue for a period of three (3) years(the"Initial Term")and shall expire on December 31,2018, unless terminated earlier in accordance with the provisions of this Agreement. The City shall have the sole right to renew this Agreement for two (2) additional one-year terms, unless terminated in writing by either Party within sixty(60)days prior to the end of the Initial Term or prior to the end of any subsequent one (1)year term. If the City desires to exercise an option to renew, City shall notify DBI in writing of its intention to renew at least sixty(60)days prior to the end of the then-current term. Compensation to be paid during any option term shall be the same as that provided for in Initial Term. Compensation to be paid during any option term shall be the same as that provided for in the Initial Term, unless otherwise agreed to in writing as an amendment to this Agreement. Notwithstanding the foregoing, DBI reserves the right to increase fees at any time that are caused by Federal postal rate increases, increases in bank fees or increases that are due to Federal legislative changes provided that Employer receives 30 days' notice of such increase. DBI reserves the right to increase fees due to the provision of additional services to the Employer by DBI that were not included in or contemplated by this Agreement on the Effective Date so long as such additional services are agreed to in writing. Article 6-Termination of the Agreement 6.1 This Agreement may be terminated by either the Employer or DBI without cause and without liability, by written notice of intention to terminate given to the other party, to be effective as of a date certain set forth in the written notice,which shall not be less than sixty(60) days from the date of such notice. Except as provided in Section 6.4, all obligations of DBI relating to payment of claims under the Employer's Plan will be terminated on the effective date of termination given in the notice regardless of when the claim for such benefits is incurred. 6.2 The Agreement shall automatically terminate: a) If any law is enacted or interpreted to prohibit the continuance of this Agreement, upon the effective date of such law or interpretation; b) If any administrative fee for any service provided by DBI to Employer remains unpaid to DBI beyond thirty(30)days past the due date, upon notification by DBI to the Employer in writing that DBI intends to exercise its option to enforce this provision; c) If at any time the Employer fails to provide funds for the payment of Plan benefits or fails to restore the Minimum Account Balance, upon written notification by DBI; or d) If Employer fails to provide the required information in a timely manner to ensure compliance with the MSP Secondary Reporting required for HRAs. 6.3 In the event no funds or insufficient funds are appropriated by the Employer in any fiscal period for any payments due hereunder, Employer will notify DBI of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to the Employer of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds shall have been appropriated. 6.4 If either party is in default under any provision of this Agreement,the other party may give written notice to the other party of such default. If the defaulting party has not used good faith efforts to cure such breach or default within thirty(30) days after it receives such notice, or if good faith efforts to cure have begun within thirty(30)days but such cure is not completed within sixty(60)days after receipt of the notice,the other party shall have the right by further written notice (the"Termination Notice") to terminate the Agreement as of any future date designated in the Termination Notice. 6.5 When this Agreement is terminated, DBI will immediately cease the performance of any further services under this Agreement unless both parties agree that DBI shall continue performing services during any post-termination"run-out"period. If the Employer engages DBI to administer a post-termination"run-out period"in accordance with the terms of the plan document, DBI will invoice and collect fees based on the fee schedule in place during the regular contract period. Upon receipt of the "run-out fee,"DBI will continue the processing of qualifying expense reimbursements and general Plan administration with respect to any claims that are received by DBI on or before the date agreed to by the parties in writing. 8 Reimbursement Account Administrative Services Agreement 6.6 Upon the completion of the later of the Agreement, or any agreed-upon"run-out period," DBI will cease the processing of any expense reimbursement requests received after the"run-out period"terminates and the Employer shall be immediately responsible for all aspects of its Plan, including the processing of all expense reimbursements, annual reporting and general plan administration. DBI shall also return any funds in the Custodial Account that have not been used for Plan benefit payments to the Employer, along with any unpaid or other pending payment requests and/or any subsequent reimbursement requests that are received after the date of the specified run-out period. However, the return of such funds shall remain subject to the completion of a final accounting of all account activities, as well as the deduction of applicable unpaid fees and other expenses under this Agreement or any other agreement between the parties. If necessary, DBI shall have the immediate right to demand and pursue collection of any unpaid fees, reimbursements or other amounts that are due and owing to DBI as of the date of termination pursuant to the terms of this Agreement or any other agreement between the parties. 6.7 Within sixty(60) days after the later of the termination of this Agreement or the applicable run-out period DBI shall prepare and deliver to the Employer a complete and final accounting and report of the financial status of the Plan as of the date of termination,together with all books and records in its possession and control pertaining to the administration of the Plan, all claim files, and all reports and other paper pertaining to the Plan. Article 7 -Cost of Administration 7.1 Plan Administrative Services Fees DBI shall be entitled to a fee for its services to the Plan and under this Agreement,which shall be payable in accordance with the fee schedule attached as Exhibit B. Monthly fees will be invoiced monthly and are due within thirty(30)days after invoice. 7.2 Compliance with Anti-Rebating Laws Employer represents that, if someone other than Employer is paying DBI's fees on behalf of the Employer,such payment shall not violate any applicable anti-rebating laws. 7.3 Past Due Amounts Notwithstanding anything in this Agreement or any other agreement between the parties to the contrary, if the Employer fails to pay DBI within the required time period any amount(except for amounts subject to a good faith dispute)that is due as a result of any product or service provided by DBI to the Employer under this Agreement or any other agreement between the parties, including,without limitation, services provided with respect to flexible spending arrangements, health reimbursement arrangements, individual premium reimbursement accounts, qualified transportation programs or health savings accounts, DBI shall be permitted to deduct the past due amount from any funds held by DBI that were provided by the Employer pursuant to this Agreement or any other agreement between the parties with prior notice and with prior approval of the Employer. This right of offset shall be in addition to any other remedies that DBI may have in this Agreement or any other agreement between the parties with respect to such non-payment, including,without limitation,any right to terminate the Agreement, regardless of whether the past due amount is paid in full as a result of the offset rights provided herein. 7.4 Participant Definition Reimbursement Account participants(FSA, HRA, and TSA)are defined as those individuals who are eligible to receive reimbursement from their account based on the Employer's Plan document, including carryovers in accordance with IRS Notice 2013-71 or applicable grace period per IRS code section 1.125-1(e). Participant counts for billing purposes are determined on the last business day of each month. In addition, Participants that lose eligibility to receive reimbursement after the first business day of a month will be included in the count for that month's billing. Article 8 -Miscellaneous Provisions 8.1 Governing Laws The laws of the State of Texas shall govern this Agreement,to the extent they are not inconsistent with or preempted by ERISA, the Internal Revenue Code, or any other applicable federal law. 8.2 Binding Agreements This Agreement, including any Exhibits attached (including DBI's response to RFP 15-0222 Health Benefits Management), constitutes the entire contract between DBI and Employer and no modification or amendment shall be valid unless agreed to in writing by both parties. If there is an inconsistency between the terms of this Agreement and the terms of any prior agreement between the parties,the terms of this Agreement will control, unless otherwise provided in such other agreement. 8.3 Final Authority Except as expressly provided otherwise in this Agreement, Employer has total control and discretionary authority over the Plan and the manner in which it is operated. DBI, along with its representatives, is only an agent of the Employer for processing of qualifying expense requests, as provided under this Agreement. 9 Reimbursement Account Administrative Services Agreement 8.4 Plan Fiduciary Employer agrees that DBI is not the plan administrator,the Named Fiduciary and is not a plan fiduciary under the Plan,as such terms are described under ERISA, except as noted under Section 1.16. DBI shall have no power or authority to waive, alter, breach or modify any terms and conditions of the Plan. DBI shall make payments or distributions from the Custodial Account in accordance with the framework of policies, interpretations, rules, practices and procedures set forth in the Plan,this Agreement and as otherwise agreed upon or directed by Employer. DBI shall neither have nor shall be deemed to exercise any discretion,control, or authority with respect to the disposition of Employer funds. Employer agrees that use of or offset of amounts in the Custodial Account to pay for fees or other amounts due to DBI under this Agreement or any other agreement between the parties shall constitute an Employer action that is authorized by the Employer under this Agreement so long as such authority was previously granted in writing. Employer agrees that such actions are not discretionary acts of DBI and do not create fiduciary status for DBI. DBI agrees that it will perform services on the Plan's behalf, as set forth in this Agreement and any attachments or other exhibits. However, DBI will not undertake any duties or responsibilities, regardless of whether they are set forth in the Plan, if such actions are in violation of any applicable laws or regulations. 8.5 Successor In the event of DBI's resignation or inability to serve,the Employer may appoint a successor. Any successor, upon appointment and acceptance, shall succeed to and be invested with all powers conferred on DBI. In such situations,the replacement of DBI shall be considered a termination of this Agreement and the Termination provisions of Article 6 shall remain effective and controlling, 8.6 Tax Obligations The Plan and/or the Employer, to the extent permitted by law, is responsible for any state or federal tax,fee, assessment, surcharge and/or penalty imposed, assessed or levied against or with respect to the Plan including those imposed pursuant to ACA. This includes the funding, remittance and determination of the amount due for ACA required taxes and fees. In the event that DBI is required to pay or elects to pay any such tax, fee assessment, surcharge and/or penalty, DBI shall report the payment to the Employer and the Employer shall,to the extent permitted by law, promptly reimburse DBI for such amount(or for Employer's proportionate share of such amount, as determined by DBI), except as provided in Section 8.7. This payment shall be in addition to the Plan administrative service fees described in Section 7.1. The Employer is at all times responsible for the tax consequences in the establishment and operation of the Plan. 8.7 Indemnification a) Subject to the limitations in Section 8.8, DBI will be liable to and will defend, indemnify and hold harmless Employer, and its respective officers, directors, employees, agents, representatives, successors and permitted assigns from and against any and all liability, damages, costs, losses and expenses, including attorney fees, disbursements and court costs, reasonably incurred by Employer in connection with any threatened, pending or adjudicated claim, demand, action, suit or proceeding by any third party which was caused solely and directly by DBI's willful misconduct, criminal conduct, material breach of the Agreement, or violation of the HIPAA privacy or security rules related to or arising out of the services performed by DBI under this Agreement. b) Except as provided in (a)above, Employer will,to the extent permitted by law, be liable to and will defend, indemnify and hold harmless DBI, and its respective officers, directors, employees, agents, representatives, successors and permitted assigns from and against any and all liability, damages, costs, losses and expenses, including attorney fees, disbursements and court costs, reasonably incurred by DBI in connection with any threatened, pending or adjudicated claim, demand, action, suit or proceeding by any third party which was caused solely and directly by Employer's willful misconduct, criminal conduct, material breach of the Agreement, or violation of the HIPAA privacy or security rules related to or arising out of the services performed by DBI under this Agreement. c)The party seeking indemnification under(a)or(b) above must notify the indemnifying party within twenty(20)days in writing of any actual or threatened action, suit or proceeding to which it claims such indemnification applies. Failure to so notify the indemnifying party shall not be deemed a waiver of the right to seek indemnification, unless the actions of the indemnifying party have been prejudiced by the failure of the other party to provide notice within the required time period. d) In the event of a legal, administrative or other action arising out of the administration, processing or determination of a claim for Plan benefits which is filed or asserted against DBI ("Claim Litigation"), DBI may, at its election, select and retain its own counsel to protect its interest. DBI shall be responsible for payment of all legal fees and expenses reasonably incurred by it in defense of Claim Litigation unless the Claim Litigation is attributable to the Employer's actions or inactions DBI shall consult with the Employer before settling Claim Litigation. DBI and the Employer shall cooperate fully with each other in the defense of Claim Litigation. In addition, nothing in this subsection (d)shall prevent a Party from pursuing any rights that such party has under subsection (a)or(b)of this Agreement. e) Nothing in this agreement shall ever be construed so as to require Employer to create a sinking fund or to assess, levy and collect any tax to fund its obligation under Section 8.7 of this agreement. 10 Reimbursement Account Administrative Services Agreement 8.8 Limitation of Remedies In no event shall either Party be liable to the other for consequential, special, exemplary, punitive, indirect or incidental damages, including without limitation any damages resulting from loss of use or loss of profits arising out of or in connection with this Agreement,whether in an action based on contract,tort (including negligence)or any other legal theory whether existing as of the Effective Date or subsequently developed, even if the Party has been advised of the possibility of such damages. In addition, notwithstanding any other provision in this Agreement to the contrary,the maximum total liability of DBI to Employer shall be limited to direct money damages in the dollar amount that is available to cover such liability under the insurance policy or policies provided for in Section 8.21. This remedy is Employer's sole and exclusive remedy. 8.9 Authority Neither party to this Agreement,when dealing with the other party in relation to the Plan,will be obliged to determine the other party's authority to act pursuant to the Agreement. Furthermore the individuals executing this Agreement on behalf of DBI and Employer do each hereby represent and warrant that(a)they are duly authorized by all necessary action to execute this Agreement on behalf of their respective principals, and (b)the execution and delivery of this Agreement and the consummation of the transactions herein provided have been duly approved by Employer and DBI and do not violate any agreements to which Employer or DBI is a party or otherwise bound. 8.10 Intellectual Property All materials, including,without limitation, documents,forms (including data collection forms provided by DBI), brochures and online content ("Materials")furnished by DBI to Employer are licensed (not sold). Employer is granted a personal, non- transferable and nonexclusive license to use Materials solely for Employer's own internal business use. Employer does not have the right to copy, distribute, reproduce, alter, display, or use these Materials or any DBI trademarks for any other purpose. Employer agrees that it will keep Materials confidential and will use commercially reasonable efforts to prevent and protect the content of Materials from unauthorized use. In no event shall a Party be held liable for disclosing Confidential Information of the other that is required by law or court order. The Party will notify DBI within ten (10) business days of such request. 8.11 Number/Gender Where the context of the Agreement requires, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine. 8.12 Amendments This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements and understandings regarding the subject matter hereof, whether written or verbal. Any amendment to this Agreement must be in writing and signed by authorized representatives of both Parties. 8.13 Legal Notice DBI shall not be bound by any communication until it has been received at its office at 4321 20th Avenue South, Fargo, ND 58103 or at such other address as it has specified to the Employer. The Employer shall not be bound by any communication until it has been received at the address shown below or such other address as it has specified by Employer to DBI with copy to the City Attorney's Office at the same address. 8.14 Assignment The provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their heirs, assigns and successors in interest. Neither party may assign any of its rights under this Agreement without the prior written consent of the other party. 8.15 Waiver If either party fails to enforce any right or remedy under this Agreement,that failure is not a waiver of the right or remedy for any other breach or failure by the other party. Further, it is understood and agreed by the parties that execution of this Agreement does not waive or surrender any of Employers'governmental powers. 8.16 Severability If any provision of this Agreement is determined by a court to be unenforceable or invalid, such determination shall not affect any other provision, each of which shall be construed and enforced as if such invalid or unenforceable provision were not contained herein. 8.17 Disputes The parties shall cooperate in good faith to resolve any and all disputes (each, a"Dispute")that may arise under or in connection with this Agreement. The existence or resolution of any Dispute as to a matter shall not reduce or otherwise affect the payment or performance by Employer its obligations under this Agreement as to any other matter, unless pursuant to the terms of any such resolution. Employer and DBI shall attempt in good faith to resolve any Dispute arising out of or relating to 11 Reimbursement Account Administrative Services Agreement this Agreement promptly by negotiation between executives who have authority to settle the controversy and who are at a higher level of management than the persons with direct responsibility for administration of this Agreement. Either party may give the other party written notice of any Dispute not resolved in the normal course of business.Within fifteen(15)days after delivery of the notice,the receiving party shall submit to the other party a written response. The notice and the response shall each include (i)a statement of the party's position and a summary of arguments supporting that position, and (ii)the name and title of the executive who will represent that party and of any other person who will accompany the executive.Within thirty(30) days after delivery of the disputing party's notice,the executives of the parties subject to the dispute shall meet at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary to attempt to resolve the Dispute. All reasonable requests for information made by one party to the other will be honored. 8.18 Force Majeure Neither DBI nor Employer, as applicable under the circumstances, shall be liable or deemed to be in default for failure to perform or delay in performance of any of their respective obligations under this Agreement(other than the Employer's obligation to provide funding for claims or pay service fees)to the extent that such failure or delay results from any act of God; military operation;terrorist attack;widespread and prolonged loss of use of the Internet; national emergency or government restrictions. 8.19 Relationship of the Parties The parties agree that in performing their responsibilities under this Agreement,they are in the position of independent contractors. This Agreement is not intended to create, nor does it create and shall not be construed to create, a relationship of partner or joint venturer or any association for profit between Employer and DBI. The parties further agree that DBI does not provide any legal,tax or accounting advice to the Plan and/or Employer. 8.20 Online Employer Account In the event Employer accesses services provided by DBI online or through any mobile or other electronic devices ("Online Account"), Employer is solely responsible for: (i)designating who is authorized to have access to the Online Account; (ii) safeguarding all of Employer's passwords, usernames, logins or other security features used to access the Online Account ("Online Account Access"); (iii) Employer's use of the Online Account under any usernames, logins or passwords; (iv)ensuring that use of the Online Account complies fully with the provisions of this Agreement; and (v)any unauthorized access, or use, of the Online Account caused by Employer's actions or inactions, including,without limitation, its failure to safeguard the Online Account or Online Account Access. Employer is solely responsible for the maintenance and routine review of computing and electronic system usage records (i.e. log files)and the security of its own data, data storage, computing devices, other electronic systems, and network connectivity. Employer acknowledges that DBI is not liable to Employer, Employer's employees or any other third-party for any consequences, losses,or damages resulting from unauthorized access or uses of the Online Account as set forth in this section. 8.21 Insurance During the term of this Agreement, DBI shall maintain general, professional, and cyber liability insurance with policy limits of not less than$1,000,000 per occurrence and in the aggregate for the purpose of providing coverage for claims arising out of the performance of its services under this Agreement. Upon request, DBI shall provide Employer with a certificate or certificates of insurance reflecting such insurance coverages and naming Employer as an additional insured to the general liability policy. 8.22 Survival The provisions of Section 2.1, Section 2.15,Article 4, Section 6.4, Section 7.2, and Article 8 shall survive the termination of this Agreement. 8.24 Call Recording From time-to-time and in compliance with applicable federal and state laws, DBI may monitor and/or record calls which are made to and from the customer service line for quality assurance and training purposes, and/or to ensure that DBI's services fully comply with the terms of this Agreement. 8.25 Miscellaneous Any number of counterparts of this Agreement may be signed and delivered,each of which shall be considered an original and all of which,together,shall constitute one and the same instrument. Nothing express or implied in this Agreement is intended to confer,and nothing herein shall confer, upon any person other than the parties hereto any rights, remedies,obligations or liabilities whatsoever. 12 Reimbursement Account Administrative Services Agreement Authorization This Agreement, including any attachments or other exhibits, is accepted and agreed to by the parties as of the effective date of this Agreement. Signed for Employer by: Signed for Discovery Benefits, Inc. by: Susan Alanis,Assistant City Manager Suzanne Rehr, Chief Compliance Officer/EVP igna re Signa e 1000 Throckmorton Street, Fort Worth, TX 76102 4321 20th Avenue South, Fargo, ND 58103 Employer Address for Section 8.13 Notice Purposes M&C: C-27335 Date: June 16,2015 +� Form 1295 Certification No. ca w APPROVED AS 110.FORM AND LEGALITY: Assistant City Attorney �; 1 r>..TI'e": ary y er, Secretary OFFICIAL RECORD CI�'�pY SECRETARY tr fl. VifO) YX 13 Reimbursement Account Administrative Services Agreement EXHIBIT A A.1 Covered Plans. The Plans covered by this Agreement include the following: Services Included in Service Effective Date Services Not Plans (if different from Included in this this Agreement Agreement Effective Date) Agreement Section 125 Premium Only Plan (POP) Flexible Spending Accounts(FSA) F Limited Purpose Health FSA (Limited Health FSA) ❑x I Health Reimbursement Arrangement(HRA) ❑x Limited Purpose HRA(Limited HRA) ❑x Transportation Fringe Benefit Plan (TSA) Adoption Assistance FSA ❑x ❑ A.2 Record-Keeping. The record-keeping services provided by DBI for the Plans, include the following: Benefits Plan Design and Set Up Included Web Enrollment Included Online Enrollment Presentation (Health FSA and Dependent Care FSA Only) Included Employee group meetings Additional fee Record-Keeping Debit Card(as provided in Exhibit C) Included Claims Based or Deduction/Contribution Based (as provided in Exhibit C) Included Maintain and update employee FSA/HRA/Transportation Account records Included Automatic email to participant when claims received and reimbursement is made included Adjudicate FSA, HRA and Parking/Bicycle Reimbursement Requests Included IIAS Compliant Debit Card Included Daily processing of reimbursement requests Included Issue direct deposit to participant savings or checking accounts Included Issue reimbursement checks to participants Included Postage for Standard Mailings Included Process claims during plan year run-out period Included Reconcile records to employers payroll, if applicable Included Administration for 2%month grace period extension, if applicable Included Archive records for 7 years Included Reporting and Communication—Employer Employer Web Portal Included Employer Administrative Guide Included Daily,weekly and/or monthly reporting available on status of account balances Included Consult on interpretation of applicable laws Included Reporting and Communication—Participant 14 Reimbursement Account Administrative Services Agreement Employee Administrative Guide Included Enrollment Materials Included Statement included with each reimbursement check Included Communication concerning ineligible claims Included Online access to account information 24/7 Included Quarterly emailed statements to participants Included Account balance statement sent 60 days prior to end of plan year(FSA Only) Included Toll-free customer service line 6:00 a.m.to 9:00 p.m. CST Monday—Friday Included Compliance, Reporting and Disclosure Generic Sample plan document(Section 125, FSA and HRA only) Included Generic Sample summary plan description Included Generic Sample plan document and summary plan description Updates Included Information for Annual 5500 Filing (health FSA and HRA) Included Section 125 25% Key Employee Concentration Non-discrimination Testing Included Section 129 55%Average Benefits Non-discrimination Testing Included Section 129 More than 5% Owners Concentration Non-discrimination Testing Included Additional 125 Plan and FSA non-discrimination testing and related services Additional Fee Health Reimbursement Arrangement 105(h)non-discrimination testing services Additional Fee 15 Reimbursement Account Administrative Services Agreement EXHIBIT B FSA/Adoption Assistance Administrative Fees Monthly Administrative Fee $3.85 per FSA Participant per month • Includes Dependent Care • Includes Benefits Debit Card • Spouse, dependent and replacement cards available at no fee Enrollment Meetings(optional) $350 per day plus travel expense. WebEx meetings included at no additional fee. Enrollment Materials Included for standard materials, unassembled. Postage and Printing Included for standard mailings and materials (Additional charges will apply for non-standard mailings and/or expedited requests) Plan Document and SPD Included Direct Deposit Included Electronic File Transfers Included Minimum Monthly Fee $50.00 (Applies only if the monthly administrative fee times the number of participants is less than this amount) DBI does not charge implementation, set-up or renewal fees. Fees are quoted net of commissions. Monthly administrative fees are guaranteed for five years. DBI reserves the right,with thirty (30) days advance written notice to Employer to increase fees at any time that are caused by Federal postal rate increases, increases in bank fees, or that are due to Federal legislative changes. 16 Reimbursement Account Administrative Services Agreement 125 Plan and FSA Non-Discrimination Testing—Clients A) Standard Tests Included for two test runs per plan year See below for the list of Standard tests B) Cafeteria Plan Only (Premium Only Plan/Premium Conversion Plan) Waived See below for the list of Cafeteria Plan tests C) Expanded Testing Waived See below for the list of Expanded tests Failed Test Follow-Up or Additional Standard Test Runs Waived A Standard Tests Include The Following Tests: • Cafeteria Plan 25% Key Employee Concentration Test • Dependent Care More than 5% Owners Concentration Test • Dependent Care 55%Average Benefits Test B) Cafeteria Plan Only Tests Premium Only Plan/Premium Conversion Plan) Include The Following Tests: 25% Key Employee Concentration Test • Eligibility Test • Safe Harbor Percentage Test • Contributions and Benefits Test—Safe Harbor for Health Plans • Contributions and Benefits Test • Availability Test • Utilization Test C) Expanded Tests Include All Of The Following Tests: Cafeteria Plan Only(POP): • 25% Key Employee Concentration Test • Eligibility Test • Safe Harbor Percentage Test • Contributions and Benefits Test—Safe Harbor for Health Plans • Contributions and Benefits Test • Availability Test • Utilization Test Health FSA(Section 105h): • Health FSA Eligibility Test • Nondiscriminatory Classifications Test • 70%Test • 70%/80%Test • Health FSA Benefits Test Dependent Care(Section 129): • More than 5% Owners Concentration Test(same as above) • 55%Average Benefits Test • Eligibility Test • Contributions and Benefits Test Health Reimbursement Arrangement 105(h)Non-Discrimination Testing Fee Schedule-Clients Health Reimbursement Arrangement 105(h)Test Waived Failed Test Follow-Up or Additional Test Runs Waived HRA 105(h)Tests Include The Following: HRA(Section 105h): • Eligibility Test • Nondiscriminatory Classifications Test • 70%Test • 70%/80%Test • Benefits Test Exhibit C 17 Reimbursement Account Administrative Services Agreement Debit Card Provisions To the extent that debit cards(referred to as a"Card" in this Exhibit C) are provided with respect to FSA accounts, TSA accounts and/or HRA accounts, the following additional provisions shall apply with respect to the debit card services. Unless otherwise provided below, all of the provisions of the Agreement shall apply to the provision of debit card services as well. CA Definitions 1.1 Card Transaction means when the Card is presented for payment of Qualified Services. 1.2 For a Health FSA and/or HRA account, Qualified Services include any and all related goods and services within the meaning of the term"medical care"or"medical expense"as defined in Code Section 213 and the rulings and Treasury regulations thereunder to the extent that such goods and services are allowable for the Account in question. 1.3 For a TSA account, Qualified Services include"parking,""transit passes,"and"commuter highway vehicle,"within the meaning of Codes Section 132(f) as it relates to"qualified transportation plans." 1.4 Account means the FSA,TSA and/or HRA,as the context requires and as elected by the Employer as part of this Agreement. 1.5 Plan Participants or Participants mean Employees that are participating in the Accounts. 1.6 Employee means those employees eligible to participate in the Plan. C.2 General Provisions 2.1 DBI shall be responsible to provide administrative services to Participants, including updating Participant records, maintaining accurate account balances and deposit information, activating and deactivating Cards, responding to Participant inquiries and providing appropriate notices of actions taken. 2.2 DBI agrees to reasonably ensure compliance with proper use of the Card and take whatever action is necessary to investigate and resolve errors in Card transactions asserted by Participants within five (5) business days. 2.3 DBI agrees to cancel, as soon as is practical, access to a Participant's account when a Card is reported as lost or stolen. 2.4 DBI agrees, upon notice from Employer of termination or ineligibility of a Participant to, as soon as is practical, deactivate such Participant's Card. Should Employer fail to provide this notice in a timely manner causing payment of ineligible expenses, Employer will be responsible for all costs incurred for subsequent Card transactions made by the terminated or ineligible Participant. 2.5 DBI will make available to the Employer,for distribution to the Participants, information as to the proper use of the Card. 2.6 Employer agrees to re-credit Participant Accounts by facilitating an after-tax payroll deduction in accordance with applicable law in those instances where the debit card was used to pay for an ineligible expense and the participant failed to reimburse the Plan or the ineligible expense could not be offset with an eligible expense. 2.7 Employer agrees to notify DBI immediately upon suspicion or confirmation of inappropriate or fraudulent Card use. 2.8 The liability for payment of claims falls on the Employer or the Plan Participant. Any additional costs, including administrative costs, shall,to the extent allowed by law, be paid by the Employer or Plan Participant. In no event shall DBI be responsible for these payments. 2.9 Employer agrees to administer the Plan in accordance with the rules and regulations of the Plan and the Agreement. 18 Reimbursement Account Administrative Services Agreement 2.10 Employer understands and acknowledges that the origination of ACH transactions to the account must comply with the provisions of U.S. law. 2.11 Employer agrees to provide all information to be included in any reports or other required documents in a timely fashion, as established by the rules of all governmental entities involved with the Plan, including but not limited to the Department of Labor and the Internal Revenue Service. 2.12 As provided in Section 2.15 of the Agreement,the Employer has authorized and instructed DBI in this Agreement to implement its standard administrative procedures to provide services in accordance with this Agreement. Such standard administrative procedures may be different for Card Transactions with respect to a health FSA,TSA and HRA and with respect to one or more groups of Card Transactions, as determined solely by DBI. Such standard administrative procedures may change without notice, as determined solely by DBI. C.3 Settlement Provisions 3.1 Employer has, in conjunction with this Agreement, executed and delivered an Authorization Agreement for Direct Payment form to DBI that,among other things, authorizes the issuer of Cards (the"Issuer")to debit the account ("Account")designated by Employer on such Authorization Agreement for Direct Payment as more fully set forth therein and in this Exhibit C. 3.2 All information regarding Employer and its Account in the Authorization Agreement for Direct Payment is true and correct. Employer will provide the Issuer's company ID and routing number to Employer's Depository. If Employer wishes to change the designated Account, Employer must submit the change to Issuer in writing at least ten (10) days before the intended effective date of the change. 3.3 Each business day, Issuer is authorized to debit Employer's Account in the amount required to settle all Card Transactions (the"Daily Settlement Amount"). Each business day, collected and available funds in Employer's Account must be greater than or equal to the Daily Settlement Amount for the previous business day. 3.4 Notwithstanding whether there are sufficient funds in the Account to pay a debit originated by Issuer, Employer shall reimburse Issuer for all Card Transactions irrespective of whether any authorization for a Card Transaction was made in accordance with the terms of the applicable health or other Employer Plan. 3.5 If Employer fails to fund the Account to settle with Issuer for Card Transactions,fails to reimburse Issuer for all Card Transactions, or breaches its obligations to Issuer, Issuer may, at its option, suspend or terminate all Cards or change the method by which Employer may settle with Issuer for Card Transactions, including requiring Employer to prefund a settlement account at Issuer. 3.6 Employer acknowledges that Issuer is not a party to the agreement between Employer and DBI and Issuer has no obligation or responsibility to process and or adjudicate benefit claims; Issuer's sole role is to issue Cards and to make settlements arising from Card Transactions based solely on information provided to it by the Card processor. 3.7 Employer acknowledges that the Issuer shall be deemed to be a third party beneficiary with respect to Section C.3 and C.4 of this Exhibit C with full rights to rely upon and enforce the provisions thereof. C.4 Other Provisions Debit card transactions and direct deposit payments will be settled directly to the Employer Account at the depository financial institution designated by Employer and on record with DBI. Changes to Employer Account information must be made by completing a new Authorization Agreement for Direct Payment form (provided by DBI)and submitting it to DBI. This authorization is to remain in full force and effect until DBI and Issuer receive written notification from an authorized representative of its termination in such time and in such manner as to afford DBI, Issuer and Depository a reasonable opportunity to act on it. 19 CERTIFICATE OF INTERESTED PARTIES FORM 1.295 1 of 1 Complete Nos,1-4 and 6 if there are interested parties. OFFICE USE ONLY Complete Nos.1,2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING 1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number: of business. 2016-4506 Discovery Benefits, Inc. Farg, ND United States Date Filed: 2 Name of governmental entity or state agency that is a party to the contract for which the form is 01/21/2016 being filed. City of Fort Worth Date Acknowledged: 3 Provide the identification number used by the governmental entity or state agency to track or identify the contract,and provide a description of the goods or services to be provided under the contract. 47050 Flexible Spending Account, Health Savings Account and COBRA Administrative Services 4 Nature of interest(check applicable) Name of Interested Party City,State,Country(place of business) Controlling Intermediary Noridian Mutual Insurance Company Fargo, ND United States X 5 Check only if there is NO Interested Party. ❑ 6 AFFIDAVIT I swear,or affirm,under penalty of perjury,that the above disclosure is true and correct. KIRSTEN STIENING Notary Public State of North Dakota My Commission Expires April 25,2020 Sg atu e of authorized agent of contracting business entity AFFIX NOTARY STAMP/SEAL ABOVE Sworn to and subscribed before me, by the said 'Sk 241-,we AL4,— this the a�� day of GL�lLC9 20to certify which,witness my hand and seal of office. Signature of officer administ ring oath Printed name of officer administeringJath T e of officer administering c&h Forms provided by Texas Ethics Commission www.ethics.stateAx.us Version V1.0.34416 M&C Review Page 1 of 2 Official site of the City of Fort Worth,Texas FORTWORTH COUNCIL ACTION: Approved on 6/16/2015 DATE: 6/16/2015 REFERENCE **C-27335 LOG NAME: 14FSAHSACOBRA16 NO.: CODE: C TYPE: CONSENT PUBLIC NO HEARING: SUBJECT: Authorize Execution of a Three-Year Contract with Discovery Benefits, Inc., for Administration of the City's Flexible Benefit Plan, Health Savings Account and COBRA in the Amount of Up to $294,714.00 (ALL COUNCIL DISTRICTS) RECOMMENDATION: It is recommended that the City Council authorize the execution of a three-year contract with Discovery Benefits, Inc., for administration of the City's Flexible Benefit Plan, Health Savings Account and COBRA in the amount of up to $294,714.00. DISCUSSION: The purpose of this Mayor and Council Communication is to seek authorization from the City Council to enter into a contract with Discovery Benefits, Inc. (Discovery Benefits), for administration of the City's Flexible Benefit Plan, Health Savings Account and COBRA. The total cost of the three-year contract will not exceed the amount of$294,714.00. The rates for the two one-year renewal options are guaranteed and the annual cost will be dependent upon employee enrollment. Staff determined it would be in the City's best interest to ensure that it was getting the best overall product and price by going out to the market and giving all providers the opportunity to compete for the City's business. On February 17, 2015, a Request for Proposal (RFP) was issued requiring interested vendors to submit proposals by April 2, 2015. The RFP was designed to solicit proposals for the following services individually or in combination with each other: (1) Third Party Administrator(TPA) for the City's self-funded Medical and Disease Management Program; (2) Pharmacy Benefit Management (PBM); (3) Flexible Spending Account (FSA), Health Saving Accounts (HSA) and COBRA administration; (4) Employee Assistance Program, and (5) Medicare Advantage. In April 2015, an Ad Hoc Selection Committee (Committee)was formed that included one retiree, five active employees -one from the Water Department, two from the Health Benefits Advisory Committee (HBAC) and two from the Human Resources Department. The Committee was active in the analysis of the proposals. Human Resources staff and the City's benefits consultant, A.J. Gallagher Benefits Services, facilitated the RFP review and Committee meetings. Thirty-four vendors were solicited from the Purchasing Division database system; five vendors responded representing five proposals. After a lengthy review process, the Committee by consensus agreed that Discovery Benefits provided the best overall quality of service and pricing. Discovery Benefits also introduced a new service provided in their COBRA product that can aid in reducing the City's future COBRA enrollment and future claims cost attributed to COBRA participants. Discovery Benefits affords the stability of the administration of the flexible benefit plans, savings accounts and COBRA. The associated cost and fees are as follows: A. Flexible Benefit Plan $3.85 per participant per month -administration for the three Flexible Benefit Plans that will provide reimbursements to active employees for allowable medical, dental and vision benefits, dependent care, and adoption assistance. Average number of participants is 1,473. Total Estimated Contract Cost-$204,159.00; average annual cost-$68,053.00 B. Health Saving Account http://apps.cfwnet.org/council_packet/mc review.asp?ID=21204&councildate=6/16/2015 1/26/2016 M&C Review Page 2 of 2 $1.95 per participant per month -administration for the health (medical, dental, vision) benefits payments for the active employees and non-Medicare retirees enrolled in the City's Consumer Health Choice Plan. Average number of participants is 765. Total Estimated Contract Cost- $53,703.00; average annual cost- $17,901.00 C. COBRA Administration $31.02 per qualifying event plus new hire notification and managing COBRA continuants billing and payments. Average number of qualifying events is 396. Total Estimated Contract Cost is-$36,852.00; average annual cost- $12,284.00 Open enrollment for the 2016 Benefit Plans is scheduled to begin October 8, 2015. The Calendar Year average cost for the contract is $98,238.00. The proposed Fiscal Year 2016 budget includes funds for this contract through September 2016. An appropriation request for the remainder of Calendar Year 2016 will be included as part of the Fiscal Year 2017 budget process. Authority for the remaining fiscal years that are encompassed by the Agreement will be requested annually as part of the overall budget process and the contract will include a standard fiscal funding out clause that would comply with state law requirements by allowing the City to terminate the Agreement without penalty, if in the future, the Council elects not to appropriate funds for the Flexible Benefit Plans, Health Savings Accounts and COBRA Administration to continue. AGREEMENT TERMS - Upon City Council approval, the initial three-year term of this contract shall begin on January 1, 2016 and expire on December 31, 2018. The contract may be renewed for up to two successive one-year terms at the City's option. This action does not require specific City Council approval, provided that the City has appropriated sufficient funds to satisfy the City's obligations during the renewal term. M/WBE OFFICE -A waiver of the goal for MBE/SBE subcontracting requirements was requested by the Department and approved by the M/WBE Office, in accordance with the BDE Ordinance, because the purchase of goods or services from source(s) where subcontracting or supplier opportunities are negligible. FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that funds will be included in the City Manager's proposed budget for Fiscal Years 2015 -2016 for the Group Health and Life Insurance Fund. Upon approval of the above recommendations and upon the adoption of the Fiscal Year 2015 -2016 Budget by the City Council to include the above recommendations, funds will be available in the Fiscal Year 2016 operating budget, as appropriated. Prior to expenditure being made, the Human Resources Department has the responsibility to validate the availability of funds. TO Fund/Account/C enters FROM Fund/Account/Centers 60109 5310101 0148540 $468.00 60109 5310101 0148520 $97,770.00 Submitted for City Manager's Office by: Susan Alanis (8180) Originating Department Head: Brian Dickerson (7783) Additional Information Contact: Margaret Wise (8058) ATTACHMENTS http://apps.cfwnet.org/council_packet/mc review.asp?ID=21204&councildate=6/16/2015 1/26/2016