The URL can be used to link to this page

Approval of the Administrative Services Agreement with RX Benefits, Inc. Copyrighted July 1, 2019 City of Dubuque Consent Items # 17. ITEM TITLE: Approval of the Administrative Services Agreement between RxBenefits, Inc. and the City of Dubuque SUMMARY: City Manager recommending approval of theAdministrative Services Agreement with RxBenefits, I nc. and authorizing the City Manager to execute the agreement. SUGGESTED DISPOSITION: Suggested Disposition: Receiveand File;Approve ATTACHMENTS: Description Type RxBenefitsAdministrativeServicesAgreement-MVM CityManagerMemo Memo Staff Memo Staff Memo Administrati� ServicesAgreement Supporting Documentation Insurance Schedule J Supporting Documentation THE CITY OF Dubuque � AIFA�erlwGh UB E '�� III► Masterpiece on the Mississippi Z°°'�w'2 7A13 2017 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Approval of the Administrative Services Agreement between RxBenefits, Inc. and the City of Dubuque DATE: June 24, 2019 A market check of the City's pharmacy benefit management services was completed in March of 2018. Following a review of the results of the market check, it was determined that Express Scripts Inc. would remain the City of Dubuque's pharmacy benefit manager; however, the purchasing coalition was changed from the lowa Employer Coalition to RxBenefits, Inc. Human Resources Manager Randy Peck recommends City Council approval of the Administrative Services Agreement with RxBenefits, Inc. and authorizing the City Manager to execute the agreement. I concur with the recommendation and respectfully request Mayor and City Council approval. �� . Mic ael C. Van Milligen MCVM:jh Attachment cc: Crenna Brumwell, City Attorney Teri Goodmann, Assistant City Manager Cori Burbach, Assistant City Manager Randy Peck, Human Resources Director �� x�� _ _ _ � ��r�� _ _ __ ,,=�x:�,.,�,�� '� � t � . � . . ��k�� '�� TO: Michael C. Van Milligen, City Manager FROM: Randy Peck, Human Resources Director SUBJECT: Approval of the Administrative Services Agreement between RxBenefifis, �, Inc. and the City of Dubuque I DATE: June 17, 2019 I�I A markefi check of the City's pharmacy benefit management services was complefied in ; March of 2018. Following a review of the results of the market check, we determined ' that Express Scripts Inc. would remain as our pharmacy benefit manager; however, the � purchasing coalition was changed from the lowa Employer Coalition to RxBenefits, Inc. � I The agreement was recently finalized by RxBenefits, Inc. The agreement has been reviewed by the City Attorney's office. I request that the City Council pass a motion approving the agreement and authorizing you to sign the agreement. RP:alk (!1/2017 Version) ADMINISTRATIVE SERVICES AGREEMENT by and between I txBenefts, Inc. and City of Dubuque Iowa EFFECTIVE AS OF: July 1, 2018 NOT FOR DISTRIBUTION. THE INFORMATION CONTAINED HEREIN IS CONFIDENTIAL, PROPRIETARY AND CONSTITUTES TRADE SECRETS OVER AND RXBENEFITS ADMINISTRATIVE SERVICES AGREEMENT THIS ADIVIINISTRATWE SERVICES. AGR1 EMENT, dated effective as of 12:01 a.m. local time in Birmingham, Alabama on July 1, 2018 ("EffectiveDate"), is made and entered by and -between ReBenefits, Inc,, an Alabama corporation ("Administrator"), and City of 'Dubuque Iowa ("Client"), Administrator and Client are sometimes referred to herein individually as a "Party" and collectively as the "Parties." Recitals A. Client has indicated a desire to enter into a contractual relationship with Administrator in order to procure the administration of prescription drug benefits to Client's Members (defined below) by Client's execution of this Agreement (defined below), including without limitation the Client application attached to this Agreement and incorporated herein by reference as Exhibit A (the "Client Application"); B. Administrator desires to administer the prescription drug benefits specified. in Client's Plan described herein in a ministerial capacity, subject to all the terms and conditions thereof; and C. Administrator has entered into an agreement with an independent, third -party pharmacy benefit manager, Express Scripts, Inc. (hereinafter referred to as "PBM" or "ESI"), for the purpose of being able to provide a network of pharmacies and related pharmacy benefit management programs and services for. utilization by Client and its Members as administered through Administrator working in conjunction with Client, all as more fully provided for in this Agreement. Agreement NOW, THEREFORE in consideration of the mutual covenants, duties and obligations made by the Parties herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows: ARTICLE I— CERTAIN DEFINITIONS A. The initially capitalized terms below in this Section A. of Article I shall have the following meanings when used in this Agreement. In addition, there are other initially capitalized terms that are defined in other parts of this Agreement and such terms shall have the meanings ascribed to them in such other parts of this Agreement whenever they are used in this Agreement. "Agreement" means this Administrative Services Agreement between Administrator and Client, the Client Application and all other exhibits, supplements, amendments, addenda and/or schedules to this Administrative Services Agreement. "Ancillary Supplies, Equipment, and Services" or"ASES" means ancillary supplies, equipment, and services provided or coordinated by ESI Specialty Pharmacy in connection with ESI Specialty Pharmacy's dispensing of Specialty Products. ASES may include all or some of the following: telephonic andfor in-person training, nursing/clinical services, m -home infusion and related support, patient monitoring, medication pumps, tubing, syringes, gauze pads, sharps containers, lancets, test strips, other supplies, and durable medical equipment. The aforementioned list is illustrative only (not exhaustive) and may include other supplies, equipment, and services based on the patient's needs, prescriber instructions, payer requirements, and/or the Specialty Product manufacturer's requirements. "Average Wholesale Price" or "AWP" means the average wholesale price of a prescription drug as identified by drug pricing services such as Medi -Span or other source recognized in the retail prescription drug industry selected by ESI (the "Pricing Source"). The applicable AWP shall be the ll -digit NDC for the product on the date dispensed, and for prescriptions filled in Participating Pharmacies, Mail Service Pharmacy and ESI Specialty Pharmacy. Actual package size will be used for dispensing. PBM will not charge Client a higher AWP price based on repackaged products and actual package size will be used for dispensing at Participating Pharmacies (retail), Mail Service Pharmacy and ESI Specialty Pharmacy. AWP used to calculate the .NOT FOR DISTRIBUTION. THE INFORi4MATION CONTAINED HEREIN IS CONFIDENTIAL, PROPRIETARY AND CONSTITUTES TRADE SECRETS OF ESI AND RXBENEFITS 2 Prescription Drug Claimis the current, post -settlement AWP, If the Pricing Source discontinues the reporting ofAWP, or materially changes the manner in which AWP Is calculated, then ESI reserves the right to make an -equitable adjustment as necessary tomaintain the parties' relative economics and the pricing intent of this Agreement, • "Brand/Generic Algorithm" or "BGA" means ESI's standard and proprietary brand/generic algorithm utillzed by ESI, a copy of which may be made•available for review by Client upon request. The purposes of the algorithm are to utilize a comprehensive and logical algorithm to•deterririne the brand or generic status of products in the EST master drug file using -a combination of industry standard attributes, to stabilize products "flipping" between brand and generic status as may bethe case when a single Indicator is used from industry pricing sources, and to reduce Client, Member and provider confusion duie to fluctuations in brand/generic status, "Brand Drug" means a prescription drug identified as•such in ESI's master•drug file using indicators from First Databank (or other source nationally recognized in the prescription drug industry used by ESI for all clients) on the basis of a standard Brand/Generic Algorithm utilized byESL.for all of.its clients, a copy of which may • be made available for .review by Administrator, . Client, or .• its Auditor upon request. Notwithstanding the foregoing, certain prescription drug medications• that are licensed and then currently marketed as brand name drugs, where, there exists .at least one (1) .competing prescription medication that is a generic equivalent and interchangeable with the marketed brand name drug, may process as "Generic Drugs" for Prescription Drug Claim adjudication and Member Copayment purposes, "Business Days" or "business days" means all.days except Saturdays; Sundays, and federal holidays. All references to "day(s)" are to calendar days unless "business day"•is specified. "Contract Year" means the full twelve (12) month period commencing on. the Effective Date and each full consecutive twelve (12) month period thereafter that this Agreement remains in effect, "Copayment" means that portion of the charge for each Covered Drug dispensed to the Member that is the responsibility of the Member (e.g,, copayment, coinsurance and/or deductible).ns indicated on the Set -Up Forms, "Cost Share" means the .amount which a Member is required to pay for a prescription or authorized refill in accordance with the Plan Design, which may be a deductible, a percentage of the prescription price, a fixed amount and/or other charge or penalty, • "Covered Drug(s)" means those prescription drugs, supplies, Specialty Produots.(if selected on the Set -Up Fortes) and other items that are covered under the Prescription DrugPrograni, each as indicated on the Set - Up Forms, 'Dispensing Fee" means the amount payable by Client as a dispensing fee per prescription or authorized refill to a Member as set forth on Exhibit A to this Agreement. "Eligibility Files" means the list submitted by Client to Administrator in reasonably acceptable electronic format indicating persons eligible for drug benefit coverage services under the Client's Plan. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder. "ESI National Plus Network" means ESI's broadest Participating Pharmacy network,' The ESI National Plus Network was historically referred to as the "EN50 Network" in ESI's network provider agreements with Participating Pharmacies, and is subject to future name change, NOT FOR DISTRIBUTION. THE INFORMATION CONTAINED HEREIN IS CONFIDENTIAL, PROPRIETARY • AND CONSTITUTES TRADE SECRETS OF ESE AND RXBENEFITS 3 "ESI Specialty Pharmacy" means:CuraScript, Inc„ Acevedo Health Group, Inc., Express Scripts Specialty Distribution Services, Inc., or another pharmacy or home health agency wholly-owned or operated by EST or one or more of its affiliates that primarily dispenses Specialty Products oc.provides services related thereto; provided, however, that when the Mail Service Pharmacy dispenses a Specialty Product, it shall be considered an ESI Specialty Pharmacy hereunder. "Fees" means, with respect to Client, all the fees specified on. the applicable Exhibits attached hereto and all ether amounts due by Client hereunder, which Client (or, if applicable, any Member) is required to pay pursuant to the terms and conditions of this Agreement. In the event ESI, Administrator.and Client agree upon a modification of the Fees from time to time, Client shall be responsible for timely communicating such changes to Members and for obtaining the necessary consents, if any, required from Client and/or Members in order to implement the new pricing. • "Formulary" means the list of FDA -approved prescription drugs and supplies developed by ESI's Pharmacy and Therapeutics Committee and/or customized by Client, and which is selected and/or adopted by Client, The drugs and supplies included_ on the Formulary will be modified .by ESI from time to time as a result of factors, including, but not limited to; medical appropriateness, manufacturerRebate arrangements, and patent expirations. Additions and/or deletions to the Formulary are hereby adopted by Client, subject.to Client's discretion to elect not to inplement any such addition or deletion through the Set -UP Form process, which such election shall be considered a Client change to the Formulary-. "Generic Drug" means a prescription drug, whether identified by its chemical, proprietary, or non-proprietary name, that is therapeutically .equivalent and interchangeable with drugs having an identical amount of.the same active ingredient(s) and approved by the FDA and which is identified as such in ESI's master drug file using indicators from First Databank (or other source nationally recognized in the prescription drug industry used by ESI for alt clients) on the basis of a standard Brand/Generic Algorithm utilized by ESI for all of its clients, a copy of.which may .be made available for review by Administrator, Client or its Auditor upon request. "HIPAA" means • the•Health Insurance Portability and Accountability Act of 1996, as amended, and the regulations pro niulgated thereunder.: "Losses" means any and all liabilities, damages, claims, causes of action, judgments, demands, penalties, fines, assessments, costs, expenses, fees (including without limitation attorneys' fees and other professional fees) and other losses of any kind or nature whatsoever. "MAG" or "Maximum' Allowable Cost" consists of a list of off -patent drugs subject to maximum allowable cost payment schedules developed or selected by ESL The payment schedules specify the maximum unit ingredient cost payable by or on behalf of Client and its Members for drugs on the MAC List. The MAC List and payment schedules are frequently updated. "MAC List" means a list of off -patent prescription drugs or supplies subject to maximum reimbursement payment schedules developed or selected by ESI. - "Mail Servide Pharmacy" means a pharmacy wholly-owned or operated by ESI or one or more of its affiliates, other than an ESI Specialty Pharmacy, where prescriptions are filled and delivered to Members via mall delivery service. "Manufacturer Administrative Fees" means those administrative fees paid by manufacturers to, ESI pursuant to a contract between ESI and the manufacturer in connection with ESL's administering, invoicing, allocating and collecting the Rebates under the Rebate program. "Member" means each person who is eligible to receive prescription drug benefits as indicated by or on behalf of Client in the Eligibility Files. NOT FOR DISTRIBUTION. THE INFORMATION CONTAINED HEREIN ES CONFIDENTIAL, PROPRIETARY AND CONSTITUTES TRADE SECRETS OF ESE AND RXBENEFITS "Member Submitted Claim" means a paper claim submitted by aMeniber for Covered Drugs, dispensed by a pharmacy for which the Member paid cash. "Pass -Through" means the actual Ingredient cost and dispensing fee amount paid by ESI for the Prescription Dritg Claini when the claim is adjudicated to the Participating Pharmacy, as set forth in the specific Participating Pharmacy remittances related to Client's claims: . "PDL" means the PBM Performance Drug List, which is a list of preferred pharmaceutical products, created and maintained by PBM, as amended from time to time, which: (a) has been approved by PBM's pharmacy and therapeutics committee; and (b) reflects.'PBM's recommendations as to which pharmaceutical products should be given favorable consideration by plans and their participants. "Participating Pharmacy" means any licensed retail pharmacy with which ESI or one or more of its affiliates has executed an agreement to provide .Covered Drugs to Members, but shall not include any mail order or specialty pharmacy affiliated with any such Participating Pharmacy. Participating Pharmacies are independent contractors of ESI. "Plan" means the self-funded prescription drug benefit plan(s) administered and/or sponsored by Client. "Plan Administrator" means the Plan sponsor or committee designated by the Plan sponsor with respect to the Plan, es -contemplated by Section 3(16)(A) of ERISA, "Plan Design" means drug coverage, days' supply limitation, Cost Share, Formulary (including Formulary drug selection and relative cost indication) and other Prescription Drug Program specifications applicable to the Prescription Drug Program designated for Client as set forth in this Agreement or otherwise documented between the Parties; "PMPM" means per Member per month fee, if applicable, as determined by Administrator from the Eligibility Files. "Prescription Drug Claim" means a Member Submitted Claim, Subrogation Claim or claim for payment submitted to ESI by a Participating Pharmacy, Mail Service Pharmacy, or ESI Specialty Pharmacy as a result of dispensing Covered Drugs to a Member. "Prescription Drug Program" means the specific pharmacy benefit management services and benefit design adopted by, and applicable to, Client under this Agreement. • "Primary Member" means each Member, excluding Members who are qualified dependents. "Protected Health Information" or "PKI" shall have the meaning given such term by HIPAA, but limited to that information created or received by PBM In its capacity as a subcontractdr to Administrator or by Administrator in its capacity as a business associate to the Plan. "Rebates" mean retrospective formulary rebates that are paid to ESI pursuant to the terms of a formulary rebate contract negotiated independently by ESI with a pharmaceutical manufacturer and directly attributable to the utilization of certain Covered Drugs by Members. .Rebates do not include Manufacturer Administrative Fees; product discounts or fees related to the procurement of prescription drug inventories, ESI Specialty Pharmacy or the Mall Service Pharmacy; fees received by ESI from pharmaceutical manufacturers for care management or other services provided in connection with the dispensing of products; or other fee-for-service arrangements whereby. pharmaceutical manufacturers generally report the fees paid to ESI or its affiliates for services rendered as "bona fide service fees" pursuant to federal laws and regulations (collectively, "Other Pharma Revenue"). Such laws and regulations, as well as ESI's contracts with pharmaceutical manufacturers, generally prohibit ESI from sharing any such "bona fide service fees" earned by ESI, whether wholly or in part, with any ESI client: ESI represents and warrants that it will not enter into any agreement with a pharmaceutical manufacturer for Other Pharma Revenue with the intent to reduce Rebates, NOT FOR DISTRIBUTION. THE INFORMATION CONTAINED I-IEREIN IS CONFIDENTIAL, PROPRIETARY AND CONSTITUTES TRADE SECRETS 01? ESI AND RXBENEFITS • 5 "Representatives" of a Party means such Party's directors, officers, managers, employees, agents and other representatives, "Set -Up Forms" means any standard Administrator or PBM document or form, which when completed and signedby or on behalf of Client (electronic commueications from Client indicating Client's approval, of a Set -Up Form shall satisfy the foregoing), will describe the essential elements adopted by Client for its Prescription Drug Program, including implementation rules, coverage and benefit designs, and clinical and trend programs, as may be amended by Client from time to time, "Single Source Products" means a prescription medication that is: (i) approved by the FDA under a generic drug ANDA application and is licensed and then currently marketed by only one generic drug manufacturers under separate ANDA applications; or (ii) subject to patent litigation. ",Specialty Product List" (for those Clients that are non -Exclusive) means the standard list of Specialty Products and their reimbursement rates under the applicable (exclusive or open) option, maintained and updated by ESI from time to time. The Specialty Product List is available to Client upon request. "Specialty -Products" means •those injectable and non -injectable drugs on the Specialty Product List. Specialty Products typically have one or more of several key characteristics, including frequent dosing adjustments and intensive clinical monitoring to decrease the potential for drug toxicity and increase the probability for beneficial treatinent outcomes; intensive patient training and compliance 'assistance to facilitate therapeutic goals; limited or exclusive product availability and distribution; specialized product handling and/or administration requirements and/or cost in excess of$500 for a 30 day supply. "Subrogation Claim" means subrogation claims Submitted by any state or aperson or entity acting on behalf of a state under Medicaid or similar United States or state government health care programs, for which Client is deemed to be the primary payor by operation of applicable federal or state laws. "Term" shall mean the time period between the Effective Date and termination of this Agreement, including the Initial Term, as extended by any Renewal Term (as such terms are defined in Article VI.A). "Usual and Customary Price" or "U&C"'means the retail price charged by a Participating Pharmacy for the particular drug in a cash transaction on the date the drug is dispensed as reported to ESI by the Participating Pharmacy. ARTICLE II- ADMINISTRATIVE SERVICES PROVIDED A, Administrator shall administer the prescription drug benefits provided by the Client's Plan, subject to all of the terms and conditions of this Agreement, as the same may be amended from time to time. to B. Administrator shallg provide oyeesasandaf former employees reasonablye as may and depende dependents eligible underpersonnel Plan. enrollment of eligible employ Administrator shall maintain up-to-date eligibility status records on all enrolled Members as submitted by Client for purposes of appropriate adjudication of Prescription Drug Claims under the Plan. s to each C Administrator nCent'ls sue (orcauseo i obe issued) declared eligible by prescription as evidence of such Member -employee's ember -employee who is enrolled to Client's Plan and w entitlement to prescription drug card benefits under the Plan, Upon reasonable request, Administrator shall provide Client with costs projections and analyses of Prescription Drug Claims and such other statistical data as may reasonably be requested by Client in connection with Client's management, oversight and control of the Plan. Administrator shall invoice Client Tor the Prescription Drug Claims due to be paid and shall collect Prescription Drug Claims due, plus monthly Transaction Fees and any other fees payable by Client under Article IV hereof and/or the Client Application. NOT FOR DISTRIBUTION. TEIE INFORMATION CONTAINED EIEREIN IS CONFIDENTIAL, PROPRIETARY AND CONSTITUTES TRADE SECRETS OF ESI AND RXBENECITS• 6 ARTICLE III — DUTIES OF CLIENT A. Client shall be solely responsible for determining the eligibility of its employees and their dependents to participate and receive benefits under.the Plan. . . B. Administrator has established -and shall inaintain a wehsite•located at www,rxbenefrts.eom (the "Website") through •which Client shall have the ability to access, revise and update the:eligibility and enrollment information of.Client's Members. Client agrees that it shall be solely responsible for effecting timely revisions and updates to the enrollment information through the Website (or, in the alternative; through a • secure file transfer protocol (ftp) site or via secure electronic data file in a•format acceptable to Administrator • delivered to Administrator. via electronic mail) and shall be responsible for the accuracy. of the. enrollment information and any and all revisions and updates to the enrollment information, Upon becoming aware of errors in the enrollment information, Client shall promptly correct the information as necessary through the Website or via.other acceptable alternative means provided for above in this Article fII.B. , Administrator shall not be responsible for PrescriptionDrug Claims payments made to Members or ineligible.and former employees of Client who are no longer or, if applicable; should never have been Members, based on information that is or was inaccurate, was not updated or not updated on a timely basis, or otherwise revised as required by Client or this'Agreement. Administrator agrees thatrevisions and updates to the enrollment or other applicable Member or. Prescription Drug. Claim information made as described above will be considered for purposes of this Agreement revised and updated within 48 hours of.receipt by Administrator of written notice from Client of such:revision.or update. • For emergency revisions and Updates that need to be effective on.the same day and not the next business day, Client must call in or fax such revisions and updates to Administrator during Administrator's normal business hours and follow up with Administrator as • appropriate to ensure such revisions and updates become effective on the same day to the extent reasonably possible. In addition, -to the extent such emergency revisions are communicated by Client to Administrator orally (e.g,, via telephone), Client agrees (and it shall be Client's sole responsibility) to -provide Administrator with a written description in reasonable detail setting forth the. emergency revisions -and/or updates within 48 hours after such emergency revisions/updates were orally communicated by Client to Administrator, C. Administrator will provide unique alphanumeric passwords ("Passwords") to Client that will permit Client to access, revise, and update the enrollment information on the Website, Client will distribute the Passwords to the individuals named on the list of authorized users (the `.Users"), which is included in Section A of the Client Application. Client is responsible for all uses of the Passwords, whether or not authorized by Client. Client is responsible for maintaining the confidentiality of the Passwords and ensuring that the Users maintain such confidentiality also. Client agrees to immediately notify Administrator of any unauthorized use of the Passwords of which Client becomes aware or has a reasonable basis to believe to have occurred, Client shall indemnify, defend and hold harmless Administrator and its Representatives from and. against all Losses resulting from, arising out of or relating to any unauthorized use or access, except where such Losses result solely from the willful or intentional actor misdonduct or negligence of Administrator. To amend the list of Users, Client must notify Administrator in writing of such amendment(s). Within one (1) business day after the business day on which Administrator receives such amendment(s) in writing from Client, Administrator will deactivate the Password(s) issued to any deleted User(s) and will activate and issue new Password(s) for any new User(s) identified by Client. Notwithstanding anything in this Agreement to the contrary, Administrator shall not (and Client acknowledges and understands that Administrator shall not) be liable or otherwise held responsible for fraudulent Prescription Drug Claims submitted by any Member, other third party acting or purporting to act on any Member's behalf or any unauthorized party using any Member's prescription drug. card, information or otherwise, D. Client expressly understands, acknowledges and agrees that any and alt information, data, documentation or software disclosed by Administrator and/or PBM in the course of conducting its business and performing administrative and related services for Members and/or Client are confidential and proprietary to, and a valuable trade secret of, Administrator and/or PBM and that any disclosure or unauthorized use - that is, any use other than to evaluate Administrator's performance under this Agreement - will cause irreparable harm and damage to Administrator and/or PBM. Subject to law and the provisions of this Section III,D,, Client shall not, directly or indirectly, release or disclose or otherwise use or attempt to use any patient -specific prescription information, trade secrets, proprietary software and technical processing, financial, pricing or NOT FOR DISTRIBUTION. THE INFORtMATION CONTAINED HEREIN IS CONFIDENTIAL, PROPRIETARY AND CONSTITUTES TRADE SECRETS OF ESI AND RXBENEFITS 7 other confidential information of Administrator and/or PBM obtained by Client from Administrator and/or PBM (regardless of the_reasoILsuch information was provided or obtained) to any other party or for the benefit of any other ,party without the prior written consent of Adtninistrator and/or PBM, which consent may be withheld by Administrator and/or PBM in their sole and absolute discretion, Any Confidential Information shall at all times remain the exclusive pr'oper'ty of the Patty providing such information and shall, upon request, be returned to the Party providing such Confidential Information, If disclosure of any Confidential information is required by taw, prior to disclosure, the Party upon whom such request, for disclosure is made shall notify the Party who provided the Confidential Information and the Party who provided the Confidential Information shall have five business days in which to take such action as' it deems appropriate to resist such disclosure, and in the event it takes no such action, the Party upon whom the request for disclosure was made • may disclose the Confidential information without any liability to the Party who provided the Confidential Information. Client expressly represents and warrants that (i) it has provided notice to its employees and their dependents regarding participation in the Plan and Client's disclosure or anticipated disclosure of employee or dependent confidentialinformation to Administrator in connection with the Plan and applicabte Iaw, and (ii) it has obtained all required consents and/or other approvals or authorizations (either in writing or through opt -out procedures) from each Primary Member or, if applicable, each dependent Member or other applicable party, regarding such disclosures, to Administrator for purposes of this Agreement and the services provided to 'Client and Members hereunder, and relating to the use and.disclosure of information by Administrator or other applicable parties, including without limitation PHI under H1PAA aspermitted under this Agreement or asotherwise reasonably necessary to effect and/or carry out the purposes and intent of this Agreement and the services to be performed and rendered by Administrator, PBM, Client or other nppltoable third parties with respect to this Agreement. Further, to the extent applicable, Client hereby authorizes PBM to, contract with pharmaceutical companies for Rebates as a group purchasing organization for the Plan. PBM and/or Administrator may use, disclose, reproduce or adapt information obtained in connection with this Agreement, including Prescription Drug Claims as well as eligibility information, which is not identifiable on a Member basis: PBM and/or Administrator shall maintain the confidentiality of this information to the extent required by applicable law and may not use the information in any way prohibited by applicable law. Should Client identify erroneous, mistaken or incorrect Prescription Drug Claims payments made by Administrator, refunds in the amount of any such erroneous Prescription Drug Claims payments to Client shall be made by Administrator within 30 days after receipt by Administrator of written notice from Client identifying such errors and providing reasonable documentation to support them. Client acknowledges, covenants and agrees that such refunds made by Administrator as provided in this Article III:F shall be the sole and exclusive remedy of Client and any Member against Administrator, its Representatives or any third party (including PBM)' resulting from any such erroneous, mistaken or incorrect Prescription Drug Claims payments made by or to Administrator, and Client further .covenants and agrees to hold harmless and indemnify Administrator and its Representatives for any Losses beyond such refunds claimed by any party from Administrator. The Parties acknowledge that Administrator may seek to recover any overpayments from the Members, the providers of service or any other party unjustly enriched as a result of such overpayments at any time afternotice or awareness of any such error. G. Without limiting the generality or scope of any other provision of this Agreement, Administrator shall not be held responsible or liable for any performance standard or obligation required of it hereunder if Client (or Client's designee(s)) or any Member fails to provide Administrator with accurate, timely and complete information as necessary and/or required to meet any such performance standard or obligation under this Agreement or otherwise. ARTICLE IV — FINANCIAL ARRANGEMENT A, Administrator will invoice Client every two (2) weeks for the applicable Fees payable for the previous two (2) weeks. Administrator will invoice Client for the Transaction Fees, as applicable and regardless of the amount o f Prescription Drug Claims activity, if any, All invoices will be due and payable 7 days from receipt by Client and shalt in no event be received by Administrator later than the due date stated in the invoice. Refer to Article V, below, for rules applicable to late payment of invoices, Client shall not (and acknowledges NOT FOR DISTRIBUTION, TEIE INFORMATION CONTAINED HEREIN IS CONFIDENTIAL„ PROPRIETARY AND CONSTITUTES TRADE SECRETS OF ESI AND RXBENEFITS e that it shall not) have any right to offset any disputed amounts or amounts due and/or payable or purported to be due and/or payable from Administrator and/or PBM from any payments of Client except as specifically approved in writing by Administrator. B, Administrator may charge Client administration fees (a) per Member -employee per calendar month payable on a monthly basis, and/or (b) per Prescription Drug Claim made by Members payable on a bi-monthly basis (collectively, the "Transaction Fees"), The Transaction Fees to be paid by Client to Administrator under this Agreement are as specified in the Client Application, C. Client acknowledges and understands that PBM, through Its contractual arrangement with Administrator, guarantees certain Rebates as set forth in the Client Application, The Parties further acknowledge and understand that no Rebates or similar discounts or payments will be paid to the Parties with respect to any Prescription Drug Claims reimbursed on a unit basis by Ivledicaid agencies or other federal our state.healthcare programs. D. Client acknowledges and is aware that Administrator, pursuant to its contractual agreement with PBM, is paid by PBM an administrative services credit payment per mall and retail Prescription Drug Claim administered by Administrator on behalf of each Member in the Plan (the "PBM Service Credit"); and (b) may also receive from PBM n one-time per Member implementation and marketing credit payment designed to reimburse Administrator for actual expenses and out-of-pocket costs incurred by Administrator to market and implement PBM products and services- and transition Client (and its Members) to PBM's benefit offerings (the "Implementation Credit"). It shall be Administrator's responsibility to obtain and collect such PBM Service Credit and the Implementation Credit directly from PBM and Client shall have no responsibility (payment or otherwise) with respect to such credit due to Administrator. The Parties acknowledge and agree that (1) Administrator shall be responsible for any and all transition and implementation costs it incurs (exclusive of any Implementation Credit received by it as described above) with respect to the marketing and transition of Client (and its Members) to benefit offerings administered by Administrator for Client, and (2) Client shall be responsible for any and all transition and implementation costs it incurs with respect to the transition and implementation of such benefit offerings. To the extent applicable to the Parties, it is the Parties' intention that, for purposes of the Federal Anti -Kickback Statute and. any required government reporting, the PBM Service Credit and .Implementation Credit shall constitute and shall be treated by Administrator and Client as a discount against the price- of drugs; within the meaning of 42 U.S.C. § 1320a- 7b(b)(3)(A). By executing this Agreement, each of Administrator and Client hereby agrees that the PBM Service Credit and any Implementation Credit shall be so treated and reported, as and to the extent applicable to each such Party. E. Client acknowledges that Administrator may, in its sole discretion, compensate brokers and/or third -party consultants from monies received or due to be received by Administrator pursuant to the provisions of this Agreement. F. Client expressly acknowledges, agrees, understands and confirms that (i) Administrator receives or may receive fees, Rebates; commissions, payments and other remuneration from and through various sources, including Client and PBM, (ii) Administrator has disclosed to Client herein jhat it receives or may receive such fees, Rebates, commissions, payments and other remuneration from such sources, and (iii) upon reasonable advance written request by Client through its authorized Representative, Administrator agrees to provide Client with any additional information or data within Administrator's possession or control, including without limitation specific payment or financial information, relating to this Agreement and the terms hereof, both in connection with the execution of this Agreement by the Parties. as of the Effective Date and thereafter during the Term of this Agreement, whether or not in connection with any filing with respect to Client's Plan or otherwise required of Client or the Plan under applicable law, provided that such information will be made available by Administrator at mutually convenient and reasonable times, intervals and places and at no out-of-pocket cost or expense to Administrator. In the event any information requested by Client pursuant to sub -section (iii) of this Article IV,F is subject to an obligation or covenant of confidentiality, Administrator agrees to exercise commercially reasonable efforts (provided, however, that such efforts shall not require Administrator to incur any out-of-pocket cost or expense) to obtain permission or consent to disclose to Client any such information in Administrator's possession and/or control, subject to NOT FOR DISTRIBUTION, THE INFORMATION CONTAINED HEREIN IS CONFIDENTIAL, PROPRIETARY AND CONSTITUTES TRADE SECRETS OF ESI AND RXBENEFITS 9 Client's execution of a confidentiality agreement with Administrator and any other applicable party in a form reasonably acceptable to Administrator and any such other applicable party. Administrator may pay Client's benefit advisor a service fee which may he in the form of a oomtnissioti, marketing fee, incentive -or other allowance. Notwithstanding any provision of this Agreement to the contrary, Administrator shall only be responsible for payment of Rebates to Client pursuant to the terms of this Agreement if such Rebates are actually received by Administrator during` the Term of this Agreement. In no event shall Administrator be obligated to pay Rebates to. Client until Administrator reeeives payment for the same Rebates from PBM. In the event Client terminates the Agreement outside the terms and conditions in the Agreement, Client forfeits the right to receive any Rebates received by Administrator on Client's behalf after the date of such • termination. Client acknowledges that Administrator shall not be obligated to pay Client any Rebates described herein until this Agreement is signed by Client. ARTICLE V — LATE PAYMENT A. If the Fees for Prescription Drug Claims, the Transaction Fees or any other applicable payments specified or provided for in this Agreement are not paid by Client and received by Administrator by the due date of the applicable invoice, then Client shall pay' Administrator a service charge equal to five percent` (5%) (or the maximum amount allowable under applioable law if such amount is less than 5%) of all then past due amounts, .In addition to such • service-eharge, any past due amounts (inotusive of service charges) wilt incur interest beginningon the due date and continuing thereafter until fully paid at a rate of ten percent (tO%) per annum' (or the maximum amount.allowable under applicable law if such amount is less than ten percent Furthermore; if payment of' the Fees for Prescription Drug Claims, the Transaction Fees or any other applicable payments payable by Client` are not received by the due date .of the applicable invoice, Administrator may, at' its option, cease or suspend the provision of administrativeservices-provided by Administrator under this Agreement, and deactivate all prescription drug cards issued to the Members. Consult Article`VI for Administrator's option and right to terminate this Agreement at any time if Client fails to •make full and timely payment of such charges and fees (including any applicable service charges and interest) to Administrator. • If at any time Administrator reasonably determines that Client may have difficulty meeting its financial commitments under this Agreement, Administrator may request from Client financial information, reasonable` assurances, or both, satisfactory to Administrator as to Client's ability to timely and fully meet its commitments and responsibilities hereunder. Such assurances may include, without limitation, Administrator requiring Client to make a deposit in such amount reasonably sufficient in Administrator's judgment to secure Client's payment obligations. If Client provides Administrator with such a deposit, Administrator may apply the deposit to past due balances and shall return the remaining deposit, if any, after the termination of this Agreement and the payment of all amounts payable to Administrator hereunder. Any deposit made by Client hereunder shall not be deemed a Plan asset. Administrator's failure to charge or collect a. service charge and/or interest from Client shallnot waive or otherwise limit in any respect any future right of Administrator under this Agreement to charge or collect a service charge and/or interest from Client. ARTICLE VI—TERN[ AND TERIVIINATION A. The initial term of this Agreement shall commence on the Effective Date and shall continue in effect, unless sooner terminated as provided herein, for period of one (1) year after the Effective Date (the "Initial Term"). Unless either Party gives the other Party written notice of its intention to terminate (given in the manner prescribed in Article VIII.B below) at least ninety (90) days in advance of the expiration of then applicable Initial Term or Renewal Term (as the case may be), the Term of this Agreement shall automatically renew and extend for additional one (1) year renewal terms (each, a "Renewal Term") without any additional act on the part of either Party (unless sooner terminated as provided herein and subject to the consequences of any such termination). Administrator may terminate this Agreement at any time if its contractual NOT FOR DISTRIBUTION. THE INFORMATION CONTAINED FIEREIN IS CONFIDENTIAL, PROPRIETARY AND CONSTITUTES TRADE SECRETS OF ESE AND RXBENEF[TS 10 arrangement with PBM terminates by giving at least ninety (90) days prior written notice of the termination of this Agreement to .Client. • B. Either Party may terminate this Agreement upon written notice to the other Party if, as a result of any change in law, the rights or obligations of the requesting Party would be materially and adversely affected. Any such termination shall be effective on the day immediately preceding the effective date of such change in law, subject to the. provisions of immediately following sentence, Notwithstanding the foregoing sentence, the Parties hereby agree to use prompt, good faith efforts to renegotiate the terms of this Agreement. If the Pasties successfully conclude such, negotiations -prior to the effective date of the change in law, this Agreement shall not terminate and shall be amended to reflect the negotiated terms mutually agreed upon by the Parties. In the event the Parties are unable to successfully conclude and reach mutual agreement through such good faith negotiations, this Agreement shall terminate as provided above and herein. C. On and after the date of termination of this Agreement, Administrator shal.l.be obligated to complete such administrative services provided for in this Agreement as have been commenced prior to the date of termination. Therefore, Prescription Drug Claims incurred or reported after the date of termination are the sole responsibility of Client and are not the responsibility of Administrator, Furthermore, termination of this Agreement shall not relieve Client of.its obligation to pay Administrator for any outstanding. Prescription Drug Claims, charges, fees (including without limitation any applicable service charges), interest and reasonable collection costs and attorneys' fees incurred by Administrator associated with such collections. Upon termination of this Agreement, Administrator shall not have any obligation to transition Claims files and/or histories (or other information prior to .such information being scrubbed ofPBM's or Administrator's confidential, proprietary or trade secret information) to the extent that they contain PBM and/or Administrator cost, pricing and/or other proprietary, financial information to Client's new prescription benefit manager or any other third party, With respect to any files requested by Client or its new prescription benefit manager, any associated chargesshall be the, responsibility of Client, D, Administrator may, in its sole and absolute discretion, suspend performance or terminate this Agreement at any time without giving any advance notice, written_or otherwise, to Client (or to any other party) and without penalty or liability for any Losses if (1) Clidnt fails to make timely payment of the Fees for Prescription Drug Claims, the Transaction Fees or any other applicable payments owed to Administrator in accordance with the terms and conditions of this Agreement or, if requested, does not provide a deposit to Administrator as_ provided in Article V.0 above, (2) Client makes an assignment for the benefit of creditors, (3) Client is the subject of a voluntary or involuntary petition for bankruptcy or is adjudicated insolvent or bankrupt, or (4) a receiver or trustee is appointed for any portion of Client's property, • E. Termination of this Agreement shall not terminate either Party's rights and obligations under Article IILC, Article IIID, Article IV (Financial Arrangement), Article V (Late Payment), Article VLC, Article VII (Indemnification), Article VIILB (Notices), Article VIII.0 (Applicable Law; Venue; Consent to Jurisdiction), Article VIILD (Entire Agreement; Construction), Article VIILF (Relationship of the Parties), Article VILLI (Confidential and Proprietary Information), Article IX (ERISA, COBRA & HIPAA Duties) and the Client Application (as amended, if applicable), and all such rights and obligations shall expressly survive any such termination, ARTICLE VII — INDEMNIFICATION AND INSURANCE A. Except as otherwise provided in this Agreement, Client and Administrator agree to hold harmless and to indemnify each other and each other's Representatives from and against any Losses arising out of or related to the indemnifying Party's breach or violation of this Agreement. B, Client acknowledges that: (1) Administrator and its Representatives do not bear any liability for Losses under the Plan; (2) Administrator and its Representatives do not insure nor underwrite the liability of Client under the Plan; and (3) Administrator's execution of this Agreement shall not be deemed as the assumption by Administrator or its Representatives of any responsibilities, obligations or duties other than those required of Administrator pursuant to the express terms and conditions of this Agreement, NOT FOR DISTRIBUTION. THE INFORMATION CONTAINED HEREIN IS CONFIDENTIAL, PROPRIETARY AND CONSTITUTES TRADE SECRETS OF ESI AND RXBENEFITS 11 Client further agrees to hold harmless and to indemnify Administrator and its. Representatives from and against all Losses arising out of or in connection with (1) Client's default is the performance of any duty, requirement or obligation of Client under this Agreement, the Plan or otherwise owed the it n tis employees and their dependents' (whether or- not in relation to this Agreement or the Plan), g ig or omissions of any Representative of Client (whether or not in relation to this Agreement or the Plan) or (3) any representations; warranties,covenants or statements, whether written, oral or otherwise, made by Client M its Representatives and/or their dependents. • Each Party's liability to the. other Party and its Representatives hereunder shall not exceed the actual ' proximate Losses caused by or arising from the indemnifying Party's breach or violation of, or failure to perform, any term or provision of this Agreement. In no event whatsoever shall either Party or any of its Representatives be liable for any indireci, special, incidental, consequential, exemplary or punitive damages (in each case, to the fullest extent that such damages may be waived by contract under applicable law), or any damages for lost profits relating to a relationship with a third party, however caused or arising, whether or not they have been informed of the possibility of their occurrence, Administrator shall at all tithes during the performance of this Agreement maintain insurance as required by the attached Insurance Schedule, as such Insurance Schedule may, from time to tine, be revised by Client. ARTICLE VIII _ GENERAL PROVISIONS • A Changes in Agreement. This Agreement may be amended at any titne,,without prior notice to any Member, by mutual written agreement executed by Administrator (through its duly` authorized Representative) and Client (through its duly authorized Representative). No employee, agent or other. Representative of Administrator is authorized to amend or vary the terns and conditions of this Agreement or to make any agreement or promise not specifically contained herein or to waive any provision hereof other than by the means prescribed above in this Article VIII.A, Notices, Any notices to be given hereunder shall be deemed Sufficiently given when in writing and (1) actually delivered to the Party to be notified or (2) placed in an envelope directed to the Party to be notified at the following addresses, and deposited in the United States mail' by certified or registered mail, postage prepaid: If to Administrator at RxBenefits, Inc, Attn: Legal 3700 Colonnade Pkwy., Ste. 600 Birmingham,' AL 35238 City of Dubuque Iowa Attn: 50 W. l3tli St. Dubuque, IA 52001 Such addresses may be changed by either Party by written notice as to the new notice address given to the other Party as provided in this Article V[ILB. Client shall act as agent of its employees (and such employees' dependents, as and whenever applicable) to receive all notices to them hereunder and to notify the employees and their participating dependents affected thereby. It also shall be the responsibility of Client to notify all employees (and their dependents) of the expiration or termination of this Agreetnent by a Party pursuant to Article VI or otherwise. In the case of changes in, or termination of, the Agreement, notice to or by Client shall be deemed to constitute notice to all employees of Client and their dependents, and no further notice need be given by Administrator to any employee or dependent in order to effectuate any change in, or termination of, this Agreement or the benefits or coverage provided for herein or made available hereby. Applicable Law; Venue; Consent to Jurisdiction. This Agreement shall be governed by, and construed and interpreted in accordance with, the internal laws of the State of Iowa without regard to conflicts of law principles thereof. The Parties agree that the exclusive venue for any action, suit, claim, counterclaim, cross - NOT FOR DISTRIBUTION. THE INFORMATION CONTAINED HEREIN IS CONFIDENTIAL, PROPRIETARY AND CONSTITUTES TRADE SECRETS OF ESCAND R`CBENEFITS 12 claim or otherwise with respect to this Agreement and/.or the subject matter hereof shall be in the Iowa District Court for Dubuque County and each Party knowingly and voluntarily hereby submits and consents to the jurisdiction of said court over such Party and hereby expressly waives and releases any and all defenses, claims or other rights or remedies it may have or may assert or allege to establish that jurisdiction or venue in said court is in error, improper or otherwise invalid in any respect, As such, each Party agrees that said court shall have in person= jurisdiction over it and consents to service of process in any manner authorized by Iowa law. Each Party further covenants not to sue the other Party (or such other Party's Representatives) in any court or jurisdiction otherthan said court. Entire Agreement; Construction, This Agreement (as defined in Article I (Certain Definitions)) constitutes the entire agreement and understanding of the Parties and supersedes any prior oral or written communication between the Parties with respect to the subject matter hereof. All'Recitals to this Agreement set forth above and all Exhibits attached hereto are hereby incorporated into and made a part of this Agreement. 2. In the event tiny provision of this Agreement shall be determined invalid or unenforceable, such Invalidity, or unenforceability.shall not invalidate or render unenforceable the entire Agreement, but rather this Agreement shall be construed as if not containing the particular invalid or unenforceable provision or provisions and the rights and obligations of the Parties shall be construed and enforced accordingly; provided, that if the invalidation or unenforceability of such provision(s) shall, in the reasonable, good faith opinion of either Party, have a material adverse effect on such Party's rights or obligations under this Agreement, then the Agreement may be terminated by such Party upon thirty (30) days advance written notice by such Party to the other Party. 3. The Parties hereto agree that no provisions of this Agreement or any related document shall be construed for or against or interpreted to the advantage or disadvantage of any Party hereto by any court or otherwise by reason of any Party's having or being deemed to have structured or drafted such provision, each Party hereby expressly aclalowledging its participation and/or- its right and ability to participate, in the structuring and drafting hereof, The Parties further acknowledge that: (i) this Agreement is the product of good faith, arm's length negotiations between then; (ii) such Parties possess substantially equal bargaining power; and (iii) each Party has had the opportunity to obtain the advice of legal counsel regarding the negotiations and execution of this Agreement, 4. This Agreement is not a third party beneficiary contract, nor shall this Agreement create (or be construed or deemed to create) any rights or remedies, whether legal, equitable or otherwise, on behalf of Members or any other third parties as against Administrator. 5, This Agreement is not a contract of insurance and Administrator is not an insurer or underwriter of Client's liability under, or with respect to, the Plan, Except as otherwise provided in this Agreement, Client has and will retain the ultimate responsibility for payment of Prescription Drug Claims and other expenses under the Plan. 6, The article and section headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the parties and shall not in any way- affect the meaning or Interpretation of this Agreement. E. Authority; Counterparts. The signatories to this Agreement each represent and warrant that he/she has full corporate or company authority to sign this Agreement on behalf of his/her respective Party and to legally bind and obligate such Party by so signing. Additionally, upon such signature by such authorized signatory(ies) of Client in each signature block of this Agreement (and the Client Application and the Business Associate Agreement made a part of this Agreement), Client represents, warrants, covenants and agrees that it has the necessary power and authority, corporate, company or otherwise (and that all necessary action has been taken for Client), to enter into this Agreement and such other agreements andto consumtnate the transactions provided for herein and therein. This Agreement (including the exhibits hereto) may be executed simultaneously in any number of counterparts, each of which shall be deemed an original, but all NOT FOR DISTRIBUTION. THE INFORMATION CONTAINED HEREIN IS CONFIDENTIAL, PROPRIETARY AND CONSTITUTES TRADE SECRETS OF ESI AND RXI3ENEFITS 13 of whichshall constitute one arid the same instrument. Facsimile signatures or signatures transmitted by electronic mail shall be cteemed to be original signatures for all purposes. F. Relationship of the Parties. 1. Administrator and Client are, and shall at all times be, solely independent contractors. Neither Party nor its Representatives is, nor shall such Party or its Representatives be construed to be, by any Party to this Agreement or by any third party, an employee, joint venturer, partner, principal, agent, master, servant, fiduciary or other Representative of the other Party. Neither Party is authorized to assume or create any obligations, duties or liabilities, express or implied, on behalf of or in the name of the other Party, except as otherwise expressly provided to the, contrary in this Agreement. Furthermore, Client acknowledges, agrees and understands that Administrator, on the one hand, and PBM and any other contracting parties of Administrator, on the other, hand, are unaffiliated entities and independent parties who are solely independent contractors of one another. 2. Client acknowledges that: (i) Client shall be responsible, in its sole discretion, for the selection of any consultants or experts to provide advice to Client as to liabilities under the Plan or duties or obligations of the•Plan or Client under applicable law or otherwise; and ([t) Client is not contracting hereunder with Administrator for the provision. of any such advice by Administrator. To the contrary, the Parties expressly acknowledge that Administrator;will not provide such advice to Client, and that neither Party has any obligation or responsibility to; advise the other Party about such other Party's compliance or noncompliance with any law, regulation, statute, rule or otherwise (including without limitation under ERISA, the Internal Revenue Code, the Public Health Services Act and/or any regulation with respect to the any of the for'egoing). 3. Client expressly acknowledges and agrees that: (i) Administrator is not (nor shall it be deemed to be at any time) a "fiduciary" for any purpose under ERISA, the Internal Revenue Code and/or the Public Health Services Act (and any regulations thereunder), applicable state law, common law or otherwise; (ii) Administrator is not (nor -shall it be deemed to be at any time) the administrator of the Plan for any purpose; (iii) Client (and not Administrator) possesses and expressly retains at all times during this Agreement and thereafter the sole and absolute authority and responsibility to design, amend, terminate, modify, in whole or in part, all or any portion of the Plan, including without limitation the sole and absolute authority to control and administer the Plan and any assets of the Plan, and such authority and responsibility cannot be delegated to Administrator; and (iv) Client (and not Administrator) has complete discretionary, binding and final authority to construe the terms of the Plan, to interpret ambiguous Plan language, to make factual determinations 'regarding the payment of Prescription Drug Claims or provision of benefits, to review denied Prescription Drug Claims and to resolve complaints by Members. Compliance with Laws; Force Majeure, Each Party hereby certifies and shall perform its duties and obligations under this Agreement in a manner that complies with all.federal, state, local and other laws and regulations applicable to such Party and its performance hereunder, including without limitation the federal anti-kickbacic statute set forth at 42 U.S.C. § 1320a-7b(b) ("Anti-ICickbacic Statute"), the Public Contracts Anti -Kickback Statute, and/or the federal "Stark Law" set forth at 42 U,S.C. §61395nn ("Stark Law"), es and to the extent applicable to each such Party. Each Party is responsible for obtaining its own legal advice concerning its compliance with applicable laws. If Administrator's performance of its duties and obligations under this Agreement is made materially more burdensome or expensive due to a change in federal, state or local laws or regulations or the interpretation or enforcement thereof, the Parties shalt, at the option of Administrator, negotiate promptly and in good faith an appropriate adjustment to the fees, costs, expenses and/or charges paid to Administrator hereunder or other amendment to this Agreement reasonably necessary in tight of the change in law or regulation or the interpretation or enforcement thereof. If the. Parties cannot agree on such adjusted amounts or amended terns, then either Party may terminate this, Agreement upon thirty (30) days prior written notice to the other Party. NOT FOR DISTRIBUTION. THE INFORMATION CONTAINED EIEREIN IS CONFIDENTIAL, PROPRIETARY AND CONSTITUTES TRADE SECRETS OF ESE AND RXBENEFITS 14 .2. : Neither PBM nor Administrator shall be obligated at any time to provide the prescription drug benefit and related services identified in this Agreement to.Client or Client's Members if Client or, If applicable, Members, are located in a state requiring a prescription benefit manager to be a fiduciary to Client or Members, in any capacity, contrary to or inconsistent with the terms and conditions specifically identified inThis Agreement. In the event any state law or regulation requires PBM or Administrator to .be a fiduciary to Client or a Member contrary to or, inconsistent with the terms and conditions identified in this Agreement, Administrator may elect not to provide such prescription drug benefit and related services identified in this Agreement to the impacted Members upon thirty (30) days prior written notice to Client. 3. Each Party, upon giving prompt written notice thereof to the other Party, shall not be liable for delay or failure to perform hereunder, if such delay or failure is due to a cause or causes beyond the reasonable .control of such Party (a "'orce Majeure Event"). For purposes of this Agreement, a -.Force Majeure Event may include, but shall not be limited to, acts of God or the public enemy, fire, flood, storms, explosion, -earthquake, war, terrorism, malicious mischief, accident, transportation tie-up, riot or civil insurrection, embargo, boycott, lock -out, strike or labor disturbance, slowdown or labor stoppage of any kind or actof any government, foreign or domestic. Each Party shall have the option; but not the obligation; to terminate this Agreement in its entirety lithe other Party fails to perform any material obligation of this Agreement because of the occurrence of a Force Majeure Event and either (i) the other Pary does not cure .such breach within thirty (30) days after the occurrence of the Force Majeure Event; or (ii) such failure is not reasonably subject to cure within such period. The non -breaching Party must provide written notice of termination to the breaching Party. H. Access to' Information; Audit Rights; Government Agency Submitted Claims. 1. Administrator and Client will allow .each • other reasonable access - at reasonable times to administrative information relating to this Agreement and the Parties' respective duties, obligations and benefits described herein, upon the giving of reasonable advance notice by the requesting Party (subject to any limitations with respect to information that is not in the possession or control of Administrator or is otherwise subject to a covenant. of confidentialityan favor ofa third party). The requesting Party agrees to execute a confidentiality agreement in form and content satisfactory to the disclosing Party as a condition precedent'to being permitted such access to such information. 2. Client, or a mutually acceptable independent, third party auditor retained by Client, may conduct, with .at least sixty (60) days prior written notice and at Client's sole cost and expense, an annual Prescription Drug Claims .audit of Administrator's data that directly relates to Prescription Drug Claims billings for the prior Agreement year. The scope and manner of such a Prescription Drug Claims audit (including applicable guidelines and timelines) shall be as reasonably determined by Administrator and communicated to Clientsufficiently in advance of any such audit. Client agrees that it will execute (and shall cause any mutually acceptable independent, third party auditor taking part in any such audit to execute) a confidentiality agreement in form and content reasonably acceptable to Administrator prior to conducting any such audit. Any request by Client to permit an auditor to perform an audit will constitute Client's direction and authorization to Administrator to disclose PHI to auditor. In the event of an audit by a mutually acceptable independent third party, Administrator and Client shall be provided With a copy of any proposed audit report or other written materials documenting such audit and Administrator will have a reasonable opportunity to comment ' on any such report or written materials documenting such audit before such are finalized. Upon finalization of audit results and agreement between Client and Administrator on any identified adjustments or discrepancies, if any, the period under review will be considered closed by the Parties and such agreed upon adjustment payments, if any, shall be paid by the appropriate party within thirty (30) days of execution by the Parties of an appropriate release document covering the audit period. Client acknowledges that it shall not be entitled to audit documents that Administrator is barred from disclosing by applicable law or pursuant to an obligation of confidentiality to a third party or that are not under the direction or control of Administrator. Administrator will make 100% NOT FOR DISTRIBUTIOrN. THE INFORMATION CONTAINED HEREIN IS CONFIDENTIAL, PROPRIETARY AND CONSTITUTES TRADE SECRETS OF ESI AND RXBENEFITS 15 of claims available to the Client or a mutually acceptable third party retained by Client to audit the processing contract. Client, acknowledges that government agencies,,incliiding without limitation federal and state governmental payors, may seek eligibility or similar data from Administrator or PBM regarding Members and may subunit to Administrator orPBM claims for reimbursement for prescription drug benefits provided to 'such government agencies (or their agents) to Metnbers ("Government Claims"). Client authorizes (a) Administrator and PBM to provide such .data as requested by government agencies, including without limitation federal and state governmental payors, and/or their authorizedagents and (b) Administrator and/or PBM to process such Government Claims. Client acknowledges that Administrator may advance payment for Government; Claims on behalf of Client during the Term of this Agreement. Client shall reimburse Administrator, in accordance with Client's payment obligations under this Agreement, for ail amounts advanced by Administrator for payment of Government Claims. Client acknowledges that Government Claims submitted by or on behalf of a state Medicaid' Agency or other governmental payor shall be paid by or on behalf of Client if submitted within three (3) years from the original date of fill unless a longer period is required .by applicable law. In addition, Government Claims submitted by or on behalf of a state Medicaid agency or other governmental payor may not be denied on the basis of the format of the Government Claim or failure to'present proper documentation at the point-of-sale. Client shall also reimburse Administrator for any adjustments or reconciliations to previously processed Government Claims that niay be payable to government agencies in accordance .with applicable laws and regulations. The administrative fee for processing Government Claims shall be invoiced at the paper submitted claim rate already agreed to by the Parties or as otherwise agreed upon in writing by Administrator and Client. Administrator reserves the right to (a) terminate these services upon ninety (90) days prior notice to Client or (b) delegate these services to a third party claims processor other than PBM. Notwithstanding any provision of this Agreement to the contrary, Client acknowledges and agrees that Client shall be oLely responsible for processing and making payment of any Government Claims applicable to Client and its Members received after the effective date of the termination or expiration of this Agreement. Confidential and Proprietary Information, 1. The term "Confidential Information" .includes, but is not limited to, ,this Agreement or any information of either Client or Administrator (including without limitation its designees) (whether oral,written, electronic, visual or fixed in any tangible medium of expression) relating to either party's services, operations, systems, programs, inventions, techniques, suppliers, customers and prospective ctstomei's,'contractors, costs and pricingdata, trade secrets, know-how, processes, plans, designs and other information of or relating to either party's business. Confidential Information does not include Protected Health Information, the use and disclosure of which is governed by Article IX.0 (including Exhibit B) of this Agreement.- Without limiting the foregoing in any way, Client acknowledges and agrees, for itself and its Representatives, that the following financial fields constitute Confidential Information of Administrator for purposes of this Agreement and shall not be disclosed by Client to any third parties without the express, prior written consent of Administrator; (a) total AWP; (b) ingredient cost; (c) dispensing fees; (d) drug cost; (e) patient amount paid; (t) total amount paid; (g) sales tax; (h) U&C charges; (i) specialty indicator; and 0) brand/generic indicator. 2 Administrator and Client shall not disclose or make use of any Confidential Information except as permitted under this Agreement without the prior written consent of the non -disclosing party, which consent may be conditioned upon the execution of a .confidentiality agreement. Each party may disclose Confidential Information oFthe other party only to its authorized Representatives who have a need to know the Confidential Information in order to accomplish the purpose of this Agreement and who (1) have been informed of the confidential and proprietary nature of the Confidential Information; and (ii) with respect to Representatives, have' agreed -in writing not to disclose it to others and to treat it in accordance with the requirements of this Section. Administrator or Client, NOT FOR DISTRIBU AND CONSTITUTES TRADE NTAINED HEREIN IS IAL, FPROPRIETARY SECRETS OF SI AND RXBENR IT5 16 as applicable, shall be responsible to the other Party for any breach of this Agreement by its respective Representatives, 3, The foregoing shall not apply to such Confidential Information to the extent: (I) the information Is or becomes generally available or known to the public through no fault of the receiving party; (11) the infortnntion was already known by or available to the revolving party prlor.to the disclosure by the other party on a non-confidential basis; (111) the Information is subsequently disclosed to the receiving party by n third party who is not under any obligatiotn of confidentiallty to the cilsolosing party; (iv) the Information has already been or le hereafter Independently acquired or developed by the receiving party without violating any confidentiality agreement or other similar obligation; or (v) the information is required to be disclosed pursuant to a court order, Any Confidential Information shall at all times retrain the exclusive property of the Party providing such Information and shall, upon request, be returned to the Party providing such Confidential Infornlatlon, If disclosure of any Confidential information is required by law, prior to disclosure, the Party upon whom such request for disclosure is made shall ;notify the Party who provided the Confidential Information and the Party who provided the Confidential Information shall have five business days In whloh to take such action as it deems appropriate to resist such disclosure; and in the event it takes no such action, the Party upon whom the request fur disclosure was.made may disclose the Confidential Information without any liability to the Party who provided. the Confidential Information• 4, Without limiting any other rights and remedies available under this Agreement or otherwise, any unauthorized disclosure or use of Confidential Information would cause Administrator or Client, as applicable, immediate and Irreparable injury or loss that may not be adequately compensated with money damages. Accordingly, if either Party fails to comply with this Article VIII,I (Confidential find Proprietary Information), the other Party will be entitled to seek to obtain specific performance including Immediate Issuance of a temporary restraining order or protitninery injunction enforcing this Agreement, and to judgment for Losses caused by the breach, and to seek to obtain any other remedies provided by law or in equity. J; Assignment. Neither party may assign this Agreement without the prior written consent of the other party, provided such consent will not be unreasonably withheld, However, Administrator may assign this Agreement or delegate the duties to be performed by or behalf of Administrator under this Agreement without the consent of Client as part of the sale of all, or substantially all, .of the assets of Administrator or similar sale or disposition of Administrator that would, upon consummation, be deemed to constitute an assignment of this Agreetnent under applicable law; K. Disclosure of Information to Third Parties, Client acknowledges, understands and agrees that it may be necessary or desirable for Administrator to disclose Information obtained from, provided by or otherwise regarding or relating to Client, Client's Plan, and/or Client's employees and Members (excluding any information that constitutes PHI underHIPAA) to .certain venders, consultants, brokers or other third parties in connection with Administrator's services, duties and/or obligations rendered by, or required of, Administrator under this Agreement or otherwise relating to Its performance hereunder. ARTICLE IX ERISA, COBRA AND HIPAA DUTIES A. ERISA, If Client's offering of the Prescription Drug Progratn provided for In this Agreement constitutes part of a "welfare plan" within the meaning of Section 3(l) of the ERISA, it is understood and ngreed that the duties of Client and Administrator are as follows: Plan and Summary Description; it shall be the duty of Client (and not the duty of Administrator) to furnish any Plan, summary plan description or summary of material modifications to Members and beneficiaries as required by ERISA and any regulations tinder it. It shall be the duty of Administrator to provide Client, upon request, with a summary of benefits available under the Plan for use In conjunction with the summary plan description and summary of material modifications. NOT FOR DISTRIBUTION. THE INFORMATION CONTAINED 'HEREIN IS CONFIDENTIAL, PROPRIETARY AND CONSTITUTES TRADE SECRETS OP ESI AND RXBE EF1 TS 17 Annual and Sunimary'Annual Rephrts:. It shall be the duty of Client to furnish any annual reports • - to participants nncl/or-governmental agencies as requited byERISA, the IntetliE l Revenue Code and any regulations thereunder. It shall be the duty of Administrator to send to Client, upott Client's ' reasonable request, such informat[on'Which Administrator has (its possesstOn as will permit. Client to tmilce. the annual. reports It -shall be the. duty; of Client to provide; the Members with summary annual reports as renulrecl by EISA and any regulations under Lt,' Platt Administrator: Itis expressly understood and agreed by the Pnrtles to this Agreement that any and all duties assigned by BRI. SA and tiny regulations thereuniler to .the Plan Admh istrator+ including, but'netlitnited to, those duties speoified in the Plan shall be deemed for purposes of this Agreement as duties of Client arid not those of Administrator. B. Continuation Coverage. It is also expressly understood and agreed•by the.Pnrties to this Agreement that the oothplience'with continuation coverage retlalreinents imposed on group, health plans by ERISA, the 'Internal Revetitte Coda and the Public Health Service Aot (including the.regulations thereunder) shall be the sole obligation 'of Client under this Agreement "and not the obligation' of Administrator, • Further, Administrator will not accept payinent directly from any employee or former employee (or dependent of snoh employee or for met employee) that Is eligible for' continuation coverage under the Plan. It shall be the respottsibitity'of Client..(nttd net Administrator), or such other third party administrator handling the group health'plan of which the PrescrIptlon.Drug Program Is a part, to collect the premiums due•from the employee or former employee (or dependent of such employee or former employee) for continuation coverage and to satlsfy any atidralt other COBRA•duties and responsibilities relating' thereto. • C, IITPAA and 'Privacyand Security. 1, Client shall be solely responsible for any and all duties, and responsibilities applicable to Client under IIIPAA and similar state law that may apply to the Prescription Drug Program offered under this Agreement at any time, Includingbut not limited to those provisions applicable to Client relating to portability, non-dlscrlminalion, privacyand security, The Parties will cause a HIPAA Business Assoelate.Agreement In the form attached hereto as Exhibit 13 Prescription Drug Claims, as well -as eilglbtllty information, which Is de -identified in accordance with FIIPAA' and other applicable law, and which is trot Identifiable on. a Member basis, may be Used, disclosed, reproduced, adapted or sold by PBM and/or• -Administrator, Such de -Identified data •may be provided to nationally recognized data integration firms to ;support appropriate administration OfPBM`s drug managetnent programs 'as. this benchtnarking.data enables PBM to compare against other drug population sets and seek to improve programs and services for clients or otherwise. . • IN WITNESS WHEREOF, Administrator and Client have 'caused .this Agreement to be executed and delivered bytheirrespedtive authorized Representatives as of the Effective Date, Administrator: Client; City of Dubuque Iowa Printed Nance: Lauren Simmons By: PrintedNatne:Michael C. Van Milligen Its: Director of Compliance and Legal Affairs its: City Manager ( xhibitA (CliehtAppllcation) Fot(ows] NOT FOR DIS I'R[BU AND CONSTITUTES TRAODE COCRETS 01: SI AND ILXBENEU TS CONFIDENTIAL, PROPRIETARY t3 • EXHIBIT A CLIENT APPLICATION [IMPORTANT - PLEASE READ CAREFULLY: Client should carefully review Sections A, B and C of this Exhibit A below which have been completed by Administrator in order to ensure the accuracy and completeness of such information. -Client shall promptly notify Administrator of any inaccuracy or omission with respect to such terms and conditions, if applicable (including, without limifation, the Client Information in Section A). Client should also carefully review and complete Section. D of this Exhibit A below.] A, INFORMATION ABOUT CLIENT Client Name:BR/Primary City of Dubuque Iowa Contact: Phone: Mall Address: 50 W. 13th St. HR Contact Email: . Fax: `City/State/zip: Dubuque, IA 52001 Billing Contact: • - Phone: Main Phone: Billing Contact Email: Fax: Send Invoices and Confidential Standard Reports to: Authorized Website Users of Client (User's Name and E-mail Address): * Note: Client may add or delete Authorized Website Users by providing written notice of such changes to Administrator pursunnt to the notice provisions of Article VIILB of the Agreement, B. ,PLAN DESIGN; MEMBER COST SHARE Member Cost Share: Please see current Summary of Benefits. . Client represents and warrants that the design of Client's Plan as reflected in a Plan Design document for Client ("PDD"), accurately reflects the applicable terms of Client's Plan for purposes of this Agreement, Client shall provide Administrator with ninety (90) days prior written notice of any proposed changes to the design of Client's Plan (including the PDD), which changes shall be consistent with the scope and nature of the services to be provided by Administrator under this Agreement, Client agrees that it is responsible for Losses resulting from any failure to implement Plan Design changes which are not communicated in writing to Administrator, In addition, Client shall notify Members of any Plan Design changes prior to the effective date of any such changes. NOT•FOR DISTRIBUTION. THE INFORMATION CONTAINED HEREIN IS CONFIDENTIAL, PROPRIETARY AND CONSTITUTES TRADE SECRETS OF ESI AND RXBENEFITS l9 C. SERVICES; FORMULARY; PRICING GUARANTEES. 1. Base Administrative Services; The folio -wig services are the base administrative services made available_ to Client and its Members pursuant to the Agieetnent(including this Exhibit A) (the "Base Administrative Services"), as applicable Administration of eligibility submitted via tape or telecommunication Eligibility maintenance Client support system for on-line access to current eligibility Administration of Client's Plan Design • In -network claims adjudication via on-line claims adjudication system • Designated Account Team • Client clinical and -plan consulting, analysis and cost projections • Annual analysis of program utilization and impact of plan design and managed care interventions • Welcome Pacicage and ID Cards for new Members • Standard Member communications • • Toll-free telephone access to customer service for the program for use by Members and Client's benefits personnel and Representatives 2, Additional Administrative Services: Client will pay for additional administrative services (the"Additional Administrative Services") beyond those included in the Base Administrative Services that are requested by Client and provided or made available by Administrator under the program as follows: 2.1 Administrative Fees PBM Services — No Additional Fee Customer service for Members Electronicfonaine eligibility sub'mission Electronic claims processing Standard coordination of benefits (COB) (reject for primary carrier) .FSA eligibility feeds Pian setup' Software training for access to our on-line system(s) Network Pharmacy Services Pharmacy help desk Pharmacynetwork` management Rome Delivery Services Benefit education Pharmacy reimbtrsement Network development (upon request) Reporting Services Prescription delivery - standard Web -based client reporting — Ad-hoc deskto Annual Strategic Account Plan report parametric reports Claims detail extract file electronic (NCPDP format) Load 12 months claims history for clinical reports and reporting Website Services Express-Scripts.com —access to reporting tools, eligibility update capability, contact directory, sates and marketing information, and benefit and enrollment support secured through Risk Base'Authentication Express-Scripts.com for Members - access to benefit, drug, health and wellness information; prescription ordering capability; and customer service - Billing reports Inquiryacoess to claims processing system Express Previews"i enrollment option — available during open enrollment to enable Members to evaluate prescription benefit plan options NOT FOR DISTRIBUTION. THE INFORMATION CONTAINED HEREIN ES CONFIDENTIAL, PROPRIETARY AND CONSTITUTES TRADE SECRETS OF ES[ AND RXBENEFLTS 20 Implementation Package and Member Communications New Member packets (includes two standard resin ID cards) Member replacement cards printed via web Implementation support ' C11n/cnl Concurrent Drug Utilization Review (DUR) Prior Authorization — Administrative a. Non -clinical Prior Authorization • b. Lost/stolen overrides c. Vacation supplies Included at no charge PBM Services Fees' Transaction Fees Payable for Administrative Services (per Article IV,B of the Agreement) $0.65 per Prescription Drug Claim made by Members payable on a bi-monthly basis Member -submitted paper claims processing fee Medicaid subrogation claims fee $2.50/claim •$2.50/claim Advanced Utilization Management (AUM Bundle) $0,60 /PMPM Year 1 $0,63 /PMPM Year 2 $0.66 / PMPM Year 3 Combined Benefit Management .Services to manage combined medical -pharmacy benefits that are not a consumer -directed health (CDH) plan• Services include ongoing management of the data exchange platform with the medical vendor/TPA, production monitoring and quality control, and designated operations team. Combined benefit types may include deductible, out of pocket, spending account, and lifetime maximum. $0.10 PMPM per combined accumulator up to . maximum of$0,20 PMPM for existing connection with medical carrier or TPA. Fees to establish connection with new medical carrier or TPA are quoted upon request. . Network Pharmacy Services Network Pharmacy Audit Program 20% of audit recoveries Reviews and Appeals Management , Initial Determinations (i.e. coverage reviews) and Level One Appeals for the Coverage Authorization Program, consisting of; • Prior Authorization Step Therapy Drug Quantity Management Included in the existing utilization management PMPM charge . OR Included in the existing PA charge of $55 per review Initial Determinations and Level One Appeals for the Benefit Review Program, consisting of reviews known as: Plan Design Related Requests Plan Exclusion Reviews (clinical or administrative reviews of non -Covered Drugs) Copay Reviews Plan Limit Reviews (e.g. age, gender, days' supply limits) Plan Rule/Administrative Reviews/Non-clinical Reviews Clinical Benefit Reviews Direct Claim Reject Reviews $55 per review ' ' NOT FOR DISTRIBUTION, THE INFORMATION CONTAINED HEREItN IS CONFIDENTIAL, PROPRIETARY AND CONSTITUTES TRADE SECRETS OF ESI AND RXBENEFITS 21 PBrVI Services Final and Binding Appeals —Level Two Appeals'* and/or Urgent Appeals** *Level One for clients with only one level of appeal ** Appeals can be urgent at Level One or Level Two and decisions are final and binding. External Reviews by independent Review Organizations - for non -grandfathered plans Comprehensive Consumer_ Driven Health (CDH) Solution Consumer Choice Plan Technical Bi-directional data exchange; dedicated operations; 24- hour a day, seven -days a week monitoring and quality control; performance reporting; and analytics Member Advocacy Dedicated CDH member services, open enrollment tools and Member comtntinications library, robust online features, and preventive care Health Choices Medication Adherence Monitoring and Outreach and proactive, personalized Member communications ' Drug Choices - Benefit Coaching, Prescription Benefit Review Statements, proactive, personalized Member communications MedicarePartD Retiree Drug Subsidy (RDS) Part D subsidy enhanced service (ESI sends reports to CMS on behalf of Client) (i) Notice of Creditable Coverage $0.00 per review* (incremental to PMPM fees or the per review fees above) * This additional fee is applied to each initial 'determination. $800 per review. Part D Subsidy standard service (ESI sends reports to Client) A. Notice of Creditable Coverage All services: $0.65 PMPM Technical and Member Advocacy: $0.35 PMPM Health Choices and Drug Choices: $0.30 PMPM $1.12 PMPM for Medicare -qualified Members with a minimum annual fee of $7,500 $1.3 5/letter + postage $0.62 PMPM for Medicare -qualified Members with a minimum; annual fee of $5,000 $1.3 5/letter + postage 3. Pricing. The financial terms set forth are conditioned on such exclusive arrangement and all other specified conditions set forth in Exhibit A of the Agreement. Client will pay to Administrator the amounts set forth below, net of applicable Copayments. The application of Brand Drug and Generic Drug pricing below may be subject to certain "dispensed as written" (DAW) protocols and Client defined plan design and coverage policies for adjudication and Member Copayment purposes. Sales or excise tax or other governmental surcharge, if any, will be the responsibility of Client. Members will always pay based on the logic below: Retail: Lowest of (i) the U&C price, (ii) Plan copayments/coinsurance, or (iii) discounted AWP (including MAC price, when MAC pricing is applicable). Mail Order: Lower of (i) Plan copayments/coinsurance or (ii) discounted AWP (including MAC price, when MAC pricing is applicable). 3.1 Pricing Guarantees. (a) Ingredient Cost Guarantee. Administrator will guarantee an average aggregate annual discount as reflected below on Client utilization to be calculated as follows: NOT FOR DISTRIBUTION. THE INFORMATION CONTAINED HEREIN IS CONFIDENTIAL, PROPRIETARY AND CONSTITUTES TRADE SECRETS 01? ESI AND RXBENEF[TS 22 [1 -(total discounted AWP ingredient cost (excluding dispensing fees and claims with ancillary charges, and prior to application of Copayments) of applicable Prescription Drug Claims for the annual period divided by totalundiscounted AWP ingredient cost (both atnottnts will be calculated as of the date of adjudication) for the annual period)]. Notwithstanding anything herein to the contrary; (i) a Prescription Drug Claim that processes at the Brand rates (Participating Pharmacy Reimbursement Rates) and (Mail Pharmacy Reimbursement Rates), as indicated on the ingredient cost field of the Prescription Drug Claim's data record, shall be reconciled as part of the Brand guarantee below; and (11) a Prescription Drug Claim that processes . at the Generic Drug rates (Participating Pharmacy Reimbursement Rates) and (Mail Pharmacy Reimbursement Rates) above, as indicated on the ingredient cost field of the Prescription Drug Claim's data record, 'shall be reconciled as part of the Generic Drug guarantee below. The only Prescription Drug Claims that sltallbe excluded from the reconciliation of the pricing guarantees are as identified in the "Claims Excluded" column of the table below. All other Prescription Drug Claims shall be included in the reconciliation of the guarantees. Type of • Gunrantee Participating Pharmacy Mail . Service Pharmacy Claims Excluded Brand AWP — 17.80% AWP — 24.80% • OTC, compounds, Member Submitted Claims, Subrogation Claims, vaccines, Specialty Products, biosimilar products, long term care pharmacy claims and products filled through in-house or 340b pharmacies (if applicable) Generic AWP — 81.80% AWP — 84.80% OTC, compounds, Member Submitted Claims, Subrogation Claims, vaccines, Specialty Products, . biosimilar products, long term care pharmacy claims and products filled through in-house or 340b pharmacies (if applicable) (b) Dispensing Fee, ESI will guarantee a maximum average aggregate annual per claim dispensing fee • , • on Client utilization to be calculated as follows; [total dispensing fee of applicable claims for the annual period divided by total claims for the annual period]. Type of Gunrantee Participating Pharmacy Mail Service Pharmacy* Claims Excluded ,. Generic Drug Dispensing Fee/Claim $0.80'': $0.00 OTC, compounds, Member Submitted Claims, Subrogation Claims, vaccines, Specialty Products, biosimilar products, long term care pharmacy . claims and products filled through in-house or 340b pharmacies (if applicable) Brand Dispensing Fee/Clain $0.80 $0.00 OTC, compounds, lvlember Submitted Claims, Subrogation Claims, vaccines, Specialty Products, biosimilar products, long term care pharmacy claims and products filled through in-house or 340b pharmacies (if applicable) * Dispensing Fees are inclusive of shipping and handling. If carrier rates (i.e., U.S, mail and/or applicable commercial courier services) increase during the Term of this Agreement, the Dispensing Fee guarantees will be increased to reflect such increase(s). Guarantees will be measured and reconciled on an annual basis within 180 days of the end of each Contract Year. To the extent Client changes its benefit design or Formulary during the Term of the Agreement, the guarantee will be equitably adjusted if there is a material impact on the discount achieved. Subject to the NOT FOR DISTRIBUTION. TiIE INFORMATION CONTAINED HEREIN IS CONFIDENTIAL, PROPRIETARY AND CONSTITUTES TRADE SECRETS OF ESI AND RXBENEFITS • •23 remaining terms of this Agreement, Administrator will pay the difference of Client's cost for any shortfall between the actual result and the guaranteed result Guarantees for pricing components are measured and reconciled in the aggregate across all pricing components.- Any dollar sayings generated in excess of one • component may be used to offset a short fall for any other component. - Notwithstanding ;anythingin this Agreement to the contrary, the Generic average annual ingredient cost discount' guarantees set forth above wilt include only those Prescription Drug Claims thatprocessed to'Client for payment where the under[ying prescription drug product was identified byMedi-Span as having a Mutlti- Source Indicator code identifier of "Y" on the date dispensed (or was identified by Medi-Spanas having a Multi -Source Indicator identifier of an "M," "N," or "O" on the date dispensed, but was substituted and dispensed by the Mai[ Service Pharmacy as its "house generic"), unless such Prescription Drug Claim [s otherwise excluded above. The Brand average annual ingredient discount guarantees set forth above w[h inolude only those Prescription Drug Claims that processed to Client for payment where the underlying prescription drug product was identified by Medi -Span as having a Multi -Source Indicator code identifier of "M", "N", or "0" on the date dispensed (except in cases where the underlying prescription drug product was substituted and dispensed by the Mail Service Pharmacy as its "house generic"), unless such Prescription Drug Claim is otherwise excluded above. Any claim that is considered a single source generic will be included in the generic reconciliation. 3.2 Specialty Products (a) Exclusive Care... ESI Specialty Pharmacy is the exclusive provider of Specialty Products for the reimbursement rates shown on the Exclustve ESI Specialty Pharmacy Specialty Product List. Any Specialty Product dispensed at a Participating Pharmacy (for example, [united distribution products not then available through ESI Specialty Pharmacy or overrides) will be -reimbursed at the standard Participating Phartnacy Specialty Product rates shown below. Upon ESI Specialty Pharmacy acquisition of limited distribution products, Members wilt obtain prescriptions through ESI Specialty Pharmacy, (b) Pricing for ASES is as follows: (i) For Specialty Products needing an additionahcharge to cover costs of all ASES required to administer the Specialty Products, the following standard per diem and nursing fee: rates shall apply. Exceptions to the standard per diem and nursing rates are set forth in (ii), below, which list may be updated from time to time by ESL Pricing for home infusion supplies and services .provided at Participating Pharmacies (for example, limited distribution products not then available through ESI Specialty Pharmacy or overrides) will be pass through. Standard Per Diem $65/dose Standard Nursing Feel First 2 Hours Standard Nursing Hourly $ L50 $75 Brand Name Ingredient Cost Dispensing Fee Exclusive ESI Specialty Pharmacy See Exclusive Specialty Product List ` - $0,00 Participating Pharmacy Specialty Products Participating Pharmacy Specialty Product List $0.80 (b) Pricing for ASES is as follows: (i) For Specialty Products needing an additionahcharge to cover costs of all ASES required to administer the Specialty Products, the following standard per diem and nursing fee: rates shall apply. Exceptions to the standard per diem and nursing rates are set forth in (ii), below, which list may be updated from time to time by ESL Pricing for home infusion supplies and services .provided at Participating Pharmacies (for example, limited distribution products not then available through ESI Specialty Pharmacy or overrides) will be pass through. Standard Per Diem $65/dose Standard Nursing Feel First 2 Hours Standard Nursing Hourly $ L50 $75 Brand Name AWP Discount Per Diem EPOPROSTENOL 1.0% $65/day NOT FOR DISTRIBUTION. THE INFORMATION CONTAINED EIEREIN IS CONFIDENTIAL, PROPRIETARY AND CONSTITUTES TRADE SECRETS OF ESI AND RXBENCI'ITS 24 REMODULIN . .5,0% ' $65/day The AWP discount includes Phone.Support Nursing, Supplies, Pump, first two training visits, and Coordination of In -Person Nursing. In-home nursing that is requested/needed beyond the first two training visits will be charged.at a rate of $150 for the first two hours and $75 for every hour after. (o) Specialty Products will be excluded from the non -specialty price guarantees set forth in the Agreement. In no event will the Mail Service Pharmacy or Participating Pharmacy pricing terms specified in the Agreement, including; but not limited to, the annual average ingredient cost discount guarantees, apply to -Specialty Products. (d) Unless otherwise set forth in an agreement directly between ESI Specialty Pharmacy and Client, if a Specialty Product dispensed or ASES provided by ESI Specialty Pharmacy is billed to Client directly. by EST Specialty Pharmacy instead of being processed through ESI and Administrator, Client agrees to timely pay ESI Specialty Pharmacy for such claim pursuant to the rates: above and within thirty. (30).days of Client's, or Its designee's, receipt of such electronic or paper claim from ESI Specialty Pharmacy, ESI Specialty Pharmacy shall have 360 days from the date of service to submit such electronic or paper claim, (e) SPECIALTY NET EFFECTIVE DISCOUNT GUARANTEE - Administrator guarantees that the overall annual net effective discount for the products listed on the Specialty Products List will be at least AWP (-) minus 18.55% for Client (exchuding limited.distribution products). Within one hundred and eighty (180) days following the end of each Contract Year, ESI will calculate the actual net effective discount for the products listed on the Specialty Products List that were dispensed to determine if the guarantee has been met. If the actual overall net effective discount is less than the guaranteed net effective discount Administrator will reimburse Client the full dollar amount of the difference between the actual and guaranteed net effective discounts, Client will retain any amount that the actual net effective discount exceeds the guaranteed net effective discount, The calculation for the actual het effective discount will be as follows; ((Total Ingredient Cost for the products listed on the Specialty Products List) divided by (Total AWP for the products listed on the Specialty Products List)) minus 1. This guarantee is contingent on Client's participation in the National Preferred Formulary and an exclusive specialty arrangement. 3.3 Influenza and Other Vaccinations, Vaccinations shall adjudicate at the lower of: (a) * The Vaccine Program Fee will be billed separately to Client as part of the administrative invoice according to the billing frequency set forth in the Agreement. This Vaccine Program Fee will apply to any vaccine claims, whether at contracted. rates or U&C, and is in addition to any per Prescription Drug Claim administrative fee set forth in the Agreement. OR NOT FOR DISTRIBUTION. THE INFORNIATIO i CONTAINED HEREIN IS CONFIDENTIAL, PROPRIETARY AND CONSTITUTES TRADE SECRETS OF ESI AND RYBENEFITS 25 • Participating Pharmacy INFLUENZA . . Parrlclpaiing Phnrniacv OTHER VACCINES Ingredient Cost + Participating Pharmacy Ingredient Cost as set forth in the Agreement Participating Pharmacy Ingredient Cost as set forth in the Agreement Dispensing Fee + Participating Pharmacy .• Dispensing Fee as set forth in the Agreement Participating Pharmacy Dispensing Fee as set forth in the Agreement ' Professional Service Fee (PSF); cost for pharmacist to administer the vaccine Pass -Through (capped at $15 per vaccine claim) Pass -Through (capper( at $20 per vaccine claim) Vaccine Program Fee * $2.50 per vaccine claim $2.50 per vaccine claim * The Vaccine Program Fee will be billed separately to Client as part of the administrative invoice according to the billing frequency set forth in the Agreement. This Vaccine Program Fee will apply to any vaccine claims, whether at contracted. rates or U&C, and is in addition to any per Prescription Drug Claim administrative fee set forth in the Agreement. OR NOT FOR DISTRIBUTION. THE INFORNIATIO i CONTAINED HEREIN IS CONFIDENTIAL, PROPRIETARY AND CONSTITUTES TRADE SECRETS OF ESI AND RYBENEFITS 25 • • (b) the combined ingredient cost, dispensing fee (if any) and, professional service fee (if any) that the Participating Pharmacy generally charges an individual paying cash, without coverage for prescription drug benefits, plus the Vaccine Program Fee set forth above. • Coverage is subject to Plan provisions. No vaccine claims will be included in any guarantees set forth in the Agreement and/or amendments thereto. D. REBATES I. Rebate Amounts. Subject to: (i) the conditions set forth in Sections 2 through 4 below and elsewhere in this Agreement; and (ii) Client meeting the Plan Design conditions identified in the table below, the following guaranteed amounts wilt be payable to Client during the Term of this Agreement: Formulary: ESI National Preferred National Plus 1'Ietworlk Home Delivery Products Specialty Products Rebates per Brand Rx $148.00 per brand claim $430,00 per brand claim. $1,075:00 per brand claim 2, Exclusions. Menthe • Submitted Claims, Subrogation Claims, biosimilar products, OTC products, vaccines, claims older than 180 days, claims through Client -owned or 340b pharmacies, and claims pursuant to a 100% Member Copayment plan are not eligible for the guaranteed Rebate amounts set forth in Section 1, above. 3. Rebate Payment Terms. Subject to the conditions set forth herein, Administrator will receive from ESI the quarterly Rebate payments within approximately one hundred eighty (180) days foliowing calendar quarter adjudicated for Rebates received during the prior calendar quarter. -Administrator, shall pay Client the guaranteed amounts set forth in Section 1 above within approximately -thirty (30) days following receipt of the Rebate payments from ESI. 4. Conditions 4.1. ESI contracts with pharmaceutical manufacturers for Rebates on its own behalf and for its own benefit, and not on behalf of Client. Accordingly, ESI retains all right, title and interest to any and all actual Rebates received from manufacturers, ESI will pay to Administrator (and Administrator shall pay to Client) amounts equal to the Rebate amounts allocated to Client, as specified above, from ESI's general assets (neither Client, its Members, nor Client's Plan retains any beneficial or proprietary interest in ES['s general assets). Client acknowledges and agrees that neither it, its Members, nor its Plan will have a right to interest on, or the time value of, any Rebate payments received by ESI during the collection period or moneys payable under this Section: No amounts for Rebates will be paid until this Agreement is executed by Client. ESI and Administrator will have the right to apply Client's allocated Rebate amount to unpaid Fees. 4.2 Client acknowledges that it may be eligible' for Rebate amounts under this Agreement only so long as Client, its affiliates, or its agents do not contract directly or indirectly with anyone else for discounts, utilization limits, Rebates or other financial incentives on pharmaceutical products or formulary programs for Prescription Drug Claims processed by ESI pursuant to the Agreement, without the prior written consent of ESL In the event that Client negotiates or arranges with a. pharmaceutical manufacturer for Rebates or similar discounts for any Covered Drugs hereunder, but without limiting ESI's right to other remedies, ESI may immediately withhold any Rebate amounts earned by, but not yet paid to, Client as necessary to prevent duplicative Rebates on Covered Drugs. To the extent Client knowingly negotiates and/or contracts for discounts or Rebates on claims for Covered Drugs without prior written approval of ESI, such activity -will be deemed to be a material breach of this Agreement, entitling ESI to suspend payment of Rebate amounts hereunder and to renegotiate the terms and conditions of this Agreement, NOT FOR DISTRIBUTION, THE INFORMATION CONTAINED HEREIN IS CONFIDENTIAL, PROPRIETARY AND. CONSTITUTES TRADE SECRETS OF ESI AND RXBENEFLTS 26 4.3 Under its Rebate program, EST may implement EST's Formulary management programs and controls, • which .may include, among other things, cost. containment Initiatives, and communications with Members, Participating Pharmacies, and/or physicians. 'ESI reserves the right to modify or replace such programs from time. to time. Guaranteed Rebate. =mints, if any, set forth herein, are conditioned on adherence to various Formulary thanageinentcontrols; benefit.design,requirements,claims volume, and other factors stated in the applicable pharmaceutical manufacturer agreements, as communicated by ESI to Client from time to time. If:any•govennnent action, change in law -or regulation, change in the interpretation of any law or regulation; or any action by;a pharmaceutical manufacturer has an adverse effect on the availability of Rebates, then ESI. and Administrator may make an adjustment to the Rebate terms and guaranteed Rebate amounts, if any, hereunder, • 4,4 Rebate Acknowledgment; No Representation; Rebate Limitations. Client acknowledges that Administrator is not making any representation, •warranty•or, guaranty of any .kind or nature, either express, implied or otherwise, regarding the amount of Rebates to be paid or remitted to Client pursuant to. this Agreement, except as specifically set forth in. writing herein, In addition, Client waives, releases and forever discharges ESI and Administrator from any Losses arising from a pharmaceutical company's (a) failure to pay Rebates; (b) breach of an agreement related to Rebates; or (c) negligence or misconduct. Client acknowledges that;whether and to what extent pharmaceutical companies are willing to provide Rebates to Client may depend upon a variety of factors, including the content of the PDL, the Plan's design features, Client meeting criteria for Rebates, and the extent: of participation in ESI's formulary management programs, as well as ESI/Administrator receiving sufficient information regarding each Claim for submission to pharmaceutical •companies for Rebates. Client acknowledges and 'agrees that ESI may, but shalt not be required to, initiate any collection action to collect any Rebates .from a pharmaceutical .company. In the event ESI does initiate• collection action against a pharmaceutical company to collect Rebates, ESI may offset any reasonable costs, including reasonable attorneys' fees and expenses, arising from any such action.. Notwithstanding any .provision of this Agreement to the contrary, Administrator shall only be responsible for payment of Rebates to Client pursuant t� the terms of this Agreement if such Rebates are actually received by Administrator during the Term of this Agreement. In no event shall Administrator be obligated to pay Rebates to Client until Administrator 'receives payment for the same Rebates from ESL In the eveht Client terminates the Agreement outside the terms and conditions in the Agreement, Client forfeits the right to receive any Rebates received by Administrator on Client's behalf after the date of such termination. Client acknowledges that Administrator shall not be obligated to.pay Client any Rebates described herein until this Agreement is signed by Client, 5. Rebate amounts paid to Client pursuant to this Agreement are intended to be treated as "discounts" pursuant to the federat anti-kickbacicstatute set forth at 42 U.S.C. §1320a -7b and implementing regulations. Client is obligated if requested by the Secretary of the United States Department of Health and Human Services, or as otherwise required by applicable law, to report the Rebate amounts and to provide a copy of this notice. ESI will refrain from doing anything that would impede Client from meeting any such obligation. E. ESI'S INFLATION PROTECTION PROGRAM L IP Program. The Inflation Protection Program ("ESI IP Program") may be elected by Client upon its prior written request to Administrator, subject to the terms and conditions of the ESI IP Program set forth in Section 2 below. Subject to the terms and conditions set forth below, under the ESI IP Program Administrator will pay to Client $2.00 pet' Formulary Brand Drug claim ("Client Inflation Payment"), Subject to the terms and conditions set forth herein, under the ESI IP Program, Administrator will pay Client the Client Inflation Payment within approximately one hundred and eighty (180) days following the end of each calendar quarter for utilization occurring during such calendar quarter. All non -Formulary claims and Generic Drug claims shall be excluded. 2, Terms and Conditions or ESl's IP Program. 2.1 Exclusions. The following claims will be excluded from all calculations related to ESI's [P Program: NOT FOR DISTRIBUTION. THE INFORMATION CONTAINED HEREIN IS CONFIDENTIAL, PROPRIETARY AND CONSTITUTES TIRADE SECRETS OF CSI AND RXBENEFITS 27 • Medicare claims, Medicaid claims and any other government health care program claims OTCs, member submitted claims, subrogation claims, compounds, Generic Drugs, claims submitted by Client:owned, in-house, or on-site pharmacies, 340E claims, claims submitted through a IOQ%o Member cost -share program, biosimilars, drugs where the quatitity or packaging has been changed by the manufacturer from the prior year, and drugs for which there was no utilization in the calendar year prior to the calendar year for which the Client Inflation Payment is being determined. 2.2 BSI's Right of Equitable Adjustment. If Client slakes material changes to its Formulary or benefit design that negatively impact ESI's ability to control inflation relative to Client's Formulary .drug tnix, then Client acicnowledges that ESI or Administrator reserves the right in ESI's discretion to make an equitable adjustment to the Client Inflation Payment. 2.3 The ESI IP Program, and the, underlying, economics, is separate and apart from rebates and manufacturer administrative fees, and the.amounts described above in this Section E will be paid to Client in addition to any rebate payments to which Client' is entitled pursuant to the terms of this Agreement. Client will not be entitled to receive arty amounts related to drug price inflation or a related guarantee other than as set forth above in this Section E of this Exhibit A (Client Application).; 2.4 No payments will be made to Client unless Client has an executed this Agreement. F. ' EXECUTION BY CLIENT Client hereby represents and warrantsthat the information • contained in Section A of this Client Application is true and correct in all respects and Client hereby agrees to the specific terms, conditions and financial arrangements set out in Sections B, C Co and E of this Client Application. Client agrees that if any information in Section A changes, Client will give Administrator prompt notice of such changes. Furthermore, Client understands that this Client Application (Exhibit A) is a part of the Administrative Services Agreement between Client and Administrator to which it is attached' and incorporated •; Into by reference and that Client is bound by alt terms and conditions of such Administrative Services Agreement. Alt capitalized terms used in this Client Application but not specifically defined herein shall have the meanings given to suchterms-in the Administrative Services Agreement to which this Client Application is attached and made a part of. NOT FOR DISTRIBUTION. TEIE INFORMATION CONTAINED EIEREIN IS CONTIDENTIAN PROPRIETARY AND CONSTITUTES TRADE SECRETS OF ESI AND RXBENEFITS 28 IN WITNESS WHEREOF, Client has caused this Client Application (Exhibit A to the Agreement) to be executed as of the Effective Date. In the event this Client Applioatton Is amended by the Parties after the Effective Date, the Parties may substitute such amended Client Application for the former Client Application, provided the Parties set forth the date from and after which such atnended Client Application shall be effective (the "date" line at the bottom of the Adtninistrator's acknowledgment signature block on an amended Client Applloatlon shall be such new effective date with respect to such amended Client Application), The Parties further agree that they will attach such amended Client Application to this Agreement and provide a oopy of this Agreement with the amended Client Application (Exhibit A) to Administrator and Client for their respective reoords. Any such amended Client Application must be signed by Client's authorized representative and acknowledged, agreed to, aocepted and dated by Administrator's authorized representative, CLIENT: City of Dubuque Io, Hy; Printed Name: Michael C. Van Mllligen • Its: City Manager ' Acknowledged, agreed to and accepted by: ADMINISTRATORt Rxl3eneflts. Inc. By: Printed Name: L.,auron Simmons e. Its: Director of Compliance and Legal Affairs NOT FOR DISTRIBUTION. TIIE INFORMATION CONTAINED HEREIN IS CONFIDENTIAL, PROPRIETARY AND CONSTITUTES TRADE SECRETS OF ESI AND RXBENEFITS 29 City of Dubuque Insurance Requirements for Professional Services INSURANCE SCHEDULE J 1. RxBenefits, Inc. shall furnish a signed certificate of insurance to the City of Dubuque, Iowa for the coverage required in Exhibit I prior to commencing work and at the end of the project if the term of work is longer than 60 days. Contractors presenting annual certificates shall present a certificate at the end of each project with the final billing. Each certificate shall be prepared on the most current ACORD form approved by the Iowa Department of Insurance or an equivalent approved by the Finance Director. Each certificate shall include Project: Administrative Services Agreement, July 1, 2018. 2. All policies of insurance required hereunder shall be with an insurer authorized to do business in Iowa and all insurers shall have a rating of A or better in the current A.M. Best's Rating Guide. 3. Each certificate shall be furnished to the Finance Department of the City of Dubuque. 4. Failure to provide coverage required by this Insurance Schedule shall not be deemed a waiver of these requirements by the City of Dubuque. Failure to obtain or maintain the required insurance shall be considered a material breach of this agreement. 5. Contractors shall require all subconsultants and sub-subconsultants to obtain and maintain during the performance of work insurance for the coverages described in this Insurance Schedule and shall obtain certificates of insurances from all such subconsultants and sub-subconsultants. Contractors agree that they shall be liable for the failure of a subconsultant and sub- subconsultant to obtain and maintain such coverages. The City may request a copy of such certificates from the Contractor. 6. All required endorsements shall be attached to certificate of insurance. 7. Whenever a specific ISO form is listed, required the current edition of the form must be used, or an equivalent form may be substituted if approved by the Finance Director and subject to the contractor identifying and listing in writing all deviations and exclusions from the ISO form. 8. Contractors shall be required to carry the minimum coverage/limits, or greater if required by law or other legal agreement, in Exhibit I. If the contractor's limits of liability are higher than the required minimum limits then the provider's limits shall be this agreement's required limits. Page 1 of 4 Schedule J Professional Services November 2017 City of Dubuque Insurance Requirements for Professional Services INSURANCE SCHEDULE J (continued) Exhibit I A) COMMERCIAL GENERAL LIABILITY General Aggregate Limit $2,000,000 Products -Completed Operations Aggregate Limit $1,000,000 Personal and Advertising Injury Limit $1,000,000 Each Occurrence $1,000,000 Fire Damage Limit (any one occurrence) $50,000 Medical Payments $5,000 1) Coverage shall 'be written on an occurrence, not claims made, form. The general liability coverage shall be written in accord with ISO form C00001 or business owners form BP0002. All deviations from the standard ISO commercial general liability form CG 0001, or business owners form BP 0002, shall be clearly identified. 2) Include ISO endorsement form CG 25 04 "Designated Location(s) General Aggregate Limit" or CG 25 03 "Designated Construction Project (s) General Aggregate Limit" as appropriate. 3) Include endorsement indicating that coverage is primary and non-contributory. 4) Include Preservation of Governmental Immunities Endorsement. (Sample attached). 5) Include additional insured endorsement for: The City of Dubuque, including all its elected and appointed officials, all its employees and volunteers, all its boards, commissions and/or authorities and their board members, employees and volunteers. Use ISO form CG 2026. 6) Policy shall include Waiver of Right to Recover from Others endorsement. B) AUTOMOBILE LIABILITY Combined Single Limit $1,000,000 WORKERS' COMPENSATION & EMPLOYERS LIABILITY Statutory benefits covering all employees injured on the job byaccidentor disease as prescribed by Iowa Code Chapter 85 as amended. Coverage A Coverage B Statutory—State of Iowa Employers Liability Each Accident $100,000 Each Employee -Disease $100,000 Policy Limit -Disease $500,000 Policy shall include Waiver of Right to Recover from Others endorsement. Nonelection of Workers' Compensation or Employers' Liability Coverage under Iowa Code sec. 87.22 yes form attached Page 2 of 4 Schedule J Professional Services November 2017 City of Dubuque Insurance Requirements for Professional Services INSURANCE SCHEDULE J (continued) D) UMBRELLA/EXCESS LIABILITY $1,000,000 Umbrella/excess liability coverage must be at least following form with the underlying policies included herein. E) PROFESSIONAL LIABILITY $1,000,000 Provide evidence of coverage for 5 years after completion of project. F) CYBER LIABILITY $1,000,000 X yes no Coverage for First and Third Party liability including but not limited to lost data and restoration, loss of income and cyber breach of information. Page 3 of 4 Schedule J Professional Services November 2017 City of Dubuque Insurance Requirements for Professional Services PRESERVATION OF GOVERNMENTAL IMMUNITIES ENDORSEMENT 1. Nonwaiver of Governmental Immunity. The insurer expressly agrees and states that the purchase of this policy and the including of the City of Dubuque, Iowa as an Additional Insured does not waive any of the defenses of governmental immunity available to the City of Dubuque, Iowa under Code of Iowa Section 670.4 as it is now exists and as it may be amended from time to time. 2. Claims Coverage. The insurer further agrees that this policy of insurance shall cover only those claims not subject to the defense of governmental immunity under the Code of Iowa Section 670.4 as it now exists and as it may be amended from time to time. Those claims not subject to Code of Iowa Section 670.4 shall be covered by the terms and conditions of this insurance policy. 3. Assertion of Government Immunity. The City of Dubuque, Iowa shall be responsible for asserting any defense of governmental immunity, and may do so at any time and shall do so upon the timely written request of the insurer. 4. Non -Denial of Coverage. The insurer shall not deny coverage under this policy and the insurer shall not deny any of the rights and benefits accruing to the City of Dubuque, Iowa under this policy for reasons of governmental immunity unless and until a court of competent jurisdiction has ruled in favor of the defense(s) of governmental immunity asserted by the City of Dubuque, Iowa. No Other Change in Policy. The above preservation of governmental immunities shall not otherwise change or alter the coverage available under the policy. SPECIMEN (DEPARTMENT MANAGER: FILL IN ALL BLANKS AND CHECK BOXES) Page 4 of 4 Schedule J Professional Services November 2017