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HomeMy WebLinkAbout14409 RESOLUTION NO. 14409 A RESOLUTION APPROVING A SERVICE AGREEMENT BETWEEN THE CITY OF PUEBLO AND CORVEL CORPORATION RELATING TO WORKERS’ COMPENSATION CLAIMS ADMINISTRATION FOR FISCAL YEAR 2020 BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Service Agreement between the City of Pueblo and CorVel Corporation relating to third-party administration for the City’s self-insured workers’ compensation program for the year 2020, a copy of which is attached hereto, having been approved as to form by the City Attorney, is hereby approved. SECTION 2. The Purchasing Agent is authorized to deliver the Service Agreement in the name of the City and the prior signatures of all parties to the agreement effective August 1, 2020 shall be and are hereby ratified. SECTION 3. The officers and staff of the City are directed and authorized to perform any and all acts consistent with the intent of this Resolution and the attached agreement to effectuate the transactions described therein. SECTION 4. This Resolution shall become effective upon passage and approval. INTRODUCED May 11, 2020 BY: Ed Brown _____ MEMBER OF CITY COUNCIL APPROVED: PRESIDENT OF CITY COUNCIL ATTESTED BY: CITY CLERK City Clerk’s Office Item # M-3 BACKGROUND PAPER FOR PROPOSED RESOLUTION COUNCIL MEETING DATE: May 11, 2020 TO: President Dennis E. Flores and Members of City Council CC: Mayor Nicholas A. Gradisar VIA: Brenda Armijo, City Clerk FROM: Marisa L. Pacheco – Human Resources Director SUBJECT: A RESOLUTION APPROVING A SERVICE AGREEMENT BETWEEN THE CITY OF PUEBLO AND CORVEL CORPORATION RELATING TO WORKERS’ COMPENSATION CLAIMS ADMINISTRATION FOR FISCAL YEAR 2020 SUMMARY: This is a Resolution accepting a service agreement between the City of Pueblo and CorVel Corporation for workers’ compensation claims administration. PREVIOUS COUNCIL ACTION: On December 9, 2019, an Ordinance was approved by City Council accepting a service agreement with FCC Services, Inc., for fiscal year 2020 for this purpose. BACKGROUND: On January 31, 2020, FCC Services, Inc., notified the City that it was their intent to exit the business of workers’ compensation administration effective December 31, 2020. In subsequent communication, they expressed their desire to dissolve the business relationship as soon as possible prior to December 31, 2020. In response, the City put out a request for proposals for a new vendor. There were five companies that submitted proposals. Out of those five, three were selected for interviews and CorVel Corporation was determined to be the most responsive, comprehensive, and cost- effective applicant. FINANCIAL IMPLICATIONS: CorVel Corporation’s annual fee for claims management is $78,655, payable monthly. There will also be a one-time implementation fee of $10,000 to set up the new account. The City is currently paying FCC Services, Inc., an annual fee of $91,908.65, so there will be a savings of approximately $13,253.65 per year by moving to CorVel Corporation. FCC Services, Inc., will be charging the City an estimated amount of $11,700 to convert all claims history data over to the new vendor, but this fee can ultimately be covered by the savings in administrative costs. BOARD/COMMISSION RECOMMENDATION: None. STAKEHOLDER PROCESS: None. ALTERNATIVES: There is no alternative to this request as the City of Pueblo is required to have a service agreement in place in order to work with CorVel Corporation in order to perform Workers’ Compensation consultation and claims administration services. RECOMMENDATION: Approval of the Resolution. Attachments: CorVel Corporation Service Agreement DocuSign Envelope ID:35445800-0714-4872-B1 B6-4E24606D3A40 CorVel Enterprise Comp Services Agreement This CorVel Enterprise Comp Services Agreement (this "Agreement") is entered into as of the Effective Date set forth below,by and between CorVel Enterprise Comp,Inc.,("CorVel")and the customer identified below ("Customer") to govern Customer's rights to use certain of CorVel's managed care and claims management services. This Agreement consists of and incorporates the following components: This Cover and Signature Page General Terms and Conditions Exhibit A: Selected TPA Claims Administration Services and Managed Care Services Exhibit B: Fees Exhibit C: CareMC License Agreement Exhibit C-1: My Care Smartphone App Attachment Exhibit D: CorVel Certificate of Insurance 1. Effective Date: August 1,2020 2. CorVel Address and Contact: CorVel Corporation 2010 Main Street, Suite 600 Irvine, California 92614 Attn: Director, Legal Services Phone: (949) 851-1473 Fax: (949) 851-1469 Email: Corporate Legal@corvel.com 3. Customer Address and Contact:City of Pueblo CO One City Hall Place Pueblo,Colorado 81003 Attn: Director of Human Resources Phone: (719) 553-2633 Fax: (719) 553-2696 Email: mpachecoApueblo.us SIGNATURE PAGE NEXT PAGE City Pueblo CO TPA Services Agreement with My Care App FINAL 04-23-20 DocuSign Envelope ID:35445800-0714-4872-B1 B6-4E24606D3A40 By signing below, each party acknowledges his/her agreement with the terms and conditions of this Agreement and represents and certifies that he/she is authorized to sign on behalf of and to bind each of the respective signatories to all of the terms and conditions of this Agreement as of the Effective Date. CORVEL ENTERPRISE COMP, INC. : CITY OF PUEBLO,A MUNICIPAL CORPORATION DocuSigned by: ,—DocuSigned by: vrALatln, YtiviuA, �/ Naomi Redden/27/2020 Name: —n Fran AdFF By:•�....4471RADF154d7n Print Name: Brandon `5r,en Director of Purchasing ,-DocuSignedby: Title: CFO Attest: brt,taaIIVP o Date: 4/24/2020 City of Clerk Brenda\Wr9Oin`trB` 'ji7/2020 [SEAL] /—DocuSigned by: BALANCE OF APPROPRIAATION EXISTS FOR THIS CONTRACT AND FUNDS ARE AVAILABLE G RLV1tiZUA4I1") Director of Finance C Hernandez "17M620 Sne 7 %� 620 APPROVED AS TO FORM:—Docusigned by: bot, 3ti*r Bob Jagger 85yDF34035C8488. City Attorney 99 4/28/2020 CorVel Enterprise Comp, Inc.TPA Services Agreement with My Care App 12-2-16 2 DocuSign Envelope ID:35445800-0714-4872-B1 B6-4E24606D3A40 GENERAL TERMS & CONDITIONS RECITALS WHEREAS, CorVel Corporation is in the business of providing an integrated claims administration cost containment program (the "Services") through its two wholly-owned, operating subsidiaries, CorVel Enterprise Comp, Inc., which provides claims management services, and CorVel Healthcare Corporation, which provides managed care services (collectively referred to here as"CorVel"); and WHEREAS, CorVel has developed a proprietary software solution (the"CareMC Application")which is accessible via the CorVel web site located at URL www.caremc.com (the"CareMC Site"),through which CorVel provides its customers with the option of utilizing certain Services online(the"Online Services"); and WHEREAS,CorVel has developed a proprietary smartphone application("My Care Services"smartphone app) for Customer and Customer's claimants accessible via claimant's own independent smartphone including but not limited to Apple's iOS 7.0+or Android 4.0+or other smartphone device with such access capabilities; and WHEREAS,Customer desires to retain CorVel to provide certain Services, including Online Services for the benefit of Customer and its claimants, insureds and/or their injured employees and My Care Services (including, but not limited to, services enabling Customer's claimant to (i) review the current status of their individual claim, (ii) share pain level data with their healthcare provider by taking a Pain Level Survey, (iii) receive Electronic Funds Transfer ("EFT") direct deposit transactions with respect to claims, and (iv) utilize other functions designed to assist claimants in interactions with health plans and healthcare providers); and WHEREAS,CorVel desires to be so retained by Customer to provide such Services,and Online Services and My Care Services, all under the terms and conditions set forth in this Agreement. NOW THEREFORE, for and in consideration of the agreements, covenants, representations and warranties set forth herein, and other good and valuable consideration provided by the parties, the receipt and adequacy of which are hereby acknowledged,the parties hereto agree as follows: AGREEMENT 1. SERVICES A. Exclusivity. To the extent required by law, CorVel shall be the exclusive provider of all Services as described and defined hereunder in this Agreement to Customer during the Term of this Agreement. B. Terms and Conditions of Services. The Claims Administration Services shall be provided by CorVel Enterprise Comp, Inc., and the Managed Care Services by CorVel Healthcare Corporation as chosen by Customer are indicated on Exhibit A of this Agreement which shall be utilized by Customer in accordance with the terms and conditions set forth on the applicable Schedules. The terms and conditions under which Customer may access and use the Online Services shall be governed by the terms and conditions set forth on Exhibit C (the "CareMC License Agreement"). In the event of a conflict, the terms and conditions of this Agreement shall prevail. 2. FEES A. Fees,Billing and Payment.The fees and billing and payment procedures for the Services and CareMC Application are set forth on Exhibit B ("Fees"). Customer shall remit payment for all CorVel related Fees within thirty(30)days of receipt of CorVel's invoice. City Pueblo CO TPA Services Agreement with My Care App FINAL 04-23-20 DocuSign Envelope ID:35445800-0714-4872-B1 B6-4E24606D3A40 B. Taxes. All charges and fees exclude taxes. If CorVel is required to pay sales, use, value-added or other taxes resulting from services rendered under this Agreement, then such taxes will be billed to and paid by Customer. Customer shall not be responsible for taxes based on CorVel's income. C. Customer's Audit Rights. During the Term of this Agreement and for a three(3)year period following the expiration or termination hereof, CorVel shall keep accurate records related to the provision of the Services performed under this Agreement. Such records shall be open for audit, at Customer's expense, by Customer or a reputable, independent certified public accounting firm (not working on a contingency fee basis, and reasonably acceptable to CorVel) at the local CorVel office or another location mutually agreed to by the parties for the purpose of verifying CorVel's compliance with the terms and conditions of this Agreement,provided such audits are conducted(i)no more than twice per calendar year,(ii)during CorVel's regular business hours,(iii)upon no less than thirty(30)days advance written notice to CorVel, (iv) for an audit period not to exceed twenty four(24)months prior to the date of audit, and(v) Customer or Customer's designee shall provide the results of such audit to CorVel within ten (10) business days including a complete list of all individuals or entities who were provided any CorVel information as a result of such audit and Customer or Customer's designee shall return all materials provided for such audit at the conclusion of the audit. Upon Customer's reasonable written request, no more than twice per calendar year, CorVel agrees to provide Customer with a copy of the results of CorVel's most current internal SSAE18 audit and or its current Bridge Letter, which results shall be CorVel's Confidential Information.Notwithstanding anything to the contrary herein, in no event shall Customer be permitted to audit CorVel's information technology systems or facilities or any other records of CorVel other than claims files related to the provision of Services performed under this Agreement. D. CorVel's Audit Rights. During the Term of this Agreement and for a three(3)year period following the expiration or termination hereof, Customer shall keep accurate books and records supporting Customer's calculations of the amounts payable to CorVel hereunder and Customer's compliance with its obligations under this Agreement. Such records shall be open for audit by CorVel or CorVel's certified public accountants for the purpose of verifying Customer's compliance with its payment and other obligations under this Agreement provided such audits are conducted(i) no more than twice per calendar year; (ii) during Customer's regular business hours, and (iii) upon no less than thirty (30) days advance written notice to Customer. 3. REPRESENTATIONS,WARRANTIES AND COVENANTS OF CUSTOMER A. Authority.Customer represents and warrants that(i)it has all necessary corporate power and authority to enter into this Agreement and to perform its obligations hereunder, and the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate actions on its part, (ii) this Agreement constitutes a legal, valid and binding obligation of Customer,enforceable against it in accordance with its terms,and(iii)the execution,delivery and performance of this Agreement will not constitute a violation of any judgment, order or decree or a breach of a material agreement that would materially impair or prevent Customer from complying with its obligations under this Agreement. B. Authorizations. Customer represents and warrants that (i) it has obtained or shall obtain such authorizations or approvals as are required for CorVel to perform the services described in this Agreement, including but not limited to receiving and disclosing patient-specific data as contemplated hereunder, (ii) it shall maintain the compliance of its workers' compensation program under all applicable laws, (iii) it has obtained and shall maintain during the Term any regulatory approval needed in order for CorVel to perform its obligations hereunder, and (iv) it shall promptly notify CorVel if any such approval is terminated,suspended or otherwise materially limited. City Pueblo CO TPA Services Agreement with My Care App FINAL 04-23-20 DocuSign Envelope ID: 35445800-0714-4872-B1 B6-4E24606D3A40 C. Insurance. It is agreed that Customer shall be deemed in compliance with this Section 3C by being self-insured under terms and conditions and with sufficient reserves as is customary within the industry for companies of comparable size with comparable operations. D. Non-Solicitation. Customer agrees that during the Term of this Agreement and for a period of one(1) year after any expiration or termination thereof,Customer shall not,directly or indirectly,recruit or solicit for employment, employ or in any manner engage the services of or otherwise interfere with the employment relationship of any CorVel employee who was in any way involved in providing services to Customer pursuant to the Agreement without the prior written consent of CorVel. 4. REPRESENTATIONS,WARRANTIES AND COVENANTS OF CORVEL A. Authority. CorVel represents and warrants that (i) it has all necessary corporate power and authority to enter into this Agreement and to perform its obligations hereunder, and the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate actions on its part, (ii) this Agreement constitutes a legal, valid and binding obligation of CorVel, enforceable against it in accordance with its terms, and(iii)the execution, delivery and performance of this Agreement will not constitute a violation of any judgment, order or decree or a breach of a material agreement that would materially impair or prevent CorVel from complying with its obligations under this Agreement. B. Performance. CorVel represents and warrants that (i) it has the necessary knowledge, skills and experience to provide and perform the Services in accordance with the Agreement,and(ii)it will perform the Services in a diligent, professional and workmanlike manner using an appropriate number of properly trained and qualified individuals and in accordance with applicable industry standards. C. Insurance. CorVel represents and warrants that it has and agrees that it will maintain at all times during the Term of this Agreement the required errors and omissions liability, workers' compensation, general and auto liability insurance coverages as set forth on the Certificate of Insurance attached hereto as Exhibit D. 5. DISCLAIMERS A. Coverage and Compensability. SUBJECT TO APPLICABLE STATE REGULATIONS, CODES (INCLUDING CITY CHARTER, §6-6, AND §1-5-8, P.M.C.) AND STATUTES, CORVEL SHALL RETAIN FINAL DECISION MAKING AUTHORITY AS TO COMPENSABILITY AND COVERAGE DETERMINATION WITH INPUT FROM CUSTOMER. THIS AUTHORITY EXTENDS TO DETERMINATIONS REGARDING THE PAYMENT OF BENEFITS AS REQUIRED BY LAW,AND TO THE EXTENT POSSIBLE, WITHIN THE CUSTOMER'S ESTABLISHED PARAMETERS AND CONTRACT TERMS GOVERNING CORVEL'S PERFORMANCE OF THE SERVICES. B. Duty of Cooperation. CUSTOMER ACKNOWLEDGES THAT ACCURATE AND LEGALLY SOUND DETERMINATIONS AS TO COMPENSABILITY AND THE PROVISION OF BENEFITS REQUIRES COOPERATION AND ACCESS TO CUSTOMER MATERIALS, DOCUMENTS, AND WITNESSES. CUSTOMER AGREES TO COOPERATE FULLY IN ALL ASPECTS OF CORVEL'S INVESTIGATION IN ORDER TO ENSURE FULL COMPLIANCE WITH ALL APPLICABLE WORKERS'COMPENSATION STATUTES. C. Healthcare Authority. SUBJECT TO APPLICABLE STATE REGULATIONS, CODES AND STATUTES, CORVEL AND ITS AGENTS HAVE NO AUTHORITY TO CONTROL OR DIRECT THE HEALTH CARE SERVICES PROPOSED FOR OR PROVIDED TO INJURED PERSONS. THIS AUTHORITY SHALL LIE ONLY WITH THE INJURED PERSON AND HIS/HER TREATING PHYSICIAN IN ANY CASE, AND THOSE INDIVIDUALS MAY ACCEPT, REJECT OR MODIFY City Pueblo CO TPA Services Agreement with My Care App FINAL 04-23-20 DocuSign Envelope ID:35445800-0714-4872-B1 B6-4E24606D3A40 ANY ADVISORY DETERMINATIONS MADE BY CORVEL OR ITS AGENTS, EXCEPT INSOFAR AS STATE WORKERS' COMPENSATION LAWS MAY REQUIRE THEM TO FOLLOW THE DETERMINATIONS OF CUSTOMER, CORVEL, CUSTOMER'S AGENTS, A WORKERS' COMPENSATION JUDGE OR REVIEW PANEL, OR ANOTHER THIRD PARTY. D. No Interference with Practice of Medicine. Neither CorVel nor Customer shall attempt, directly or indirectly,to control, direct or interfere with the practice of medicine by any health care provider. 6. LIMITATION OF LIABILITY A. Limitation on Damages. BOTH PARTIES AGREE THAT, EXCEPT WITH RESPECT TO (i) A BREACH BY CORVEL OF ITS OBLIGATIONS UNDER SECTION 9 (Confidentiality); (ii) CORVEL'S OBLIGATIONS UNDER SECTION 7 (Indemnification) INCLUDING CORVEL'S NEGLIGENCE, ERRORS, OMISSIONS, WLLFUL MISCONDUCT OR FRAUD HEREUNDER THE OBLIGATIONS OF THIS AGREEMENT; OR A BREACH OF CUSTOMER DATA INCLUDING PERSONAL HEALTH INFORMATION BY CORVEL OF WHICH COULD RESULT IN BLUE SKY DAMAGES,IN NO EVENT WILL CORVEL'S MAXIMUM AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE LESSER OF: (x)THE FEES PAID BY CUSTOMER TO CORVEL HEREUNDER IN THE TWELVE(12)MONTHS PRIOR TO THE DATE FIRST NOTICE IS PROVIDED BY EITHER PARTY REFERENCING A CLAIM HEREUNDER; OR (y) TWO HUNDRED THOUSAND DOLLARS (US$200,000), REGARDLESS OF WHETHER CLAIMS ARE BROUGHT UNDER TORT, CONTRACT, OR ANY OTHER LEGAL OR EQUITABLE THEORY. For purposes of this Section 6(A), the calculation of fees paid to CorVel shall exclude provider fees, pharmacy fees, facility fees, medical expenses, and allocated loss adjustment expenses which Customer pays to CorVel and CorVel passes through to medical providers, pharmacies and other third parties as may be required in the performance of CorVel's services hereunder. B. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOST REVENUES) UNDER THIS AGREEMENT. THE FOREGOING EXCLUSION SHALL APPLY REGARDLESS OF WHETHER CLAIMS BROUGHT UNDER OR IN CONNECTION WITH THIS AGREEMENT ARE FORESEEABLE, WHETHER THEY ARE BROUGHT UNDER TORT, NEGLIGENCE, CONTRACT OR ANY OTHER LEGAL OR EQUITABLE THEORY AND WHETHER ANY REMEDY UNDER THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. C. Integral Element. The parties acknowledge that the limitations and disclaimers set forth in this Agreement were an integral element in the business arrangement between the parties. The pricing and other terms of this Agreement reflect this allocation of risk and the disclaimers and limitations of liability set forth herein. 7. INDEMNIFICATION A. Indemnification by CorVel. (i) Subject to Section 7D below, CorVel shall defend any third party suit or action against Customer to the extent resulting from the negligence or willful misconduct of CorVel in performing or failing to perform the Services for Customer under this Agreement, and CorVel will pay those Losses finally awarded against Customer in any monetary settlement or final, non- appealable judgment of such suit or action which are specifically attributable to such claim, but excluding therefrom the costs of any medical benefits,temporary and permanent disability benefits, death benefits, medical-legal responses, vocational rehabilitation and any other expenses or services that are required to be paid or provided by Customer under any insurance policy or City Pueblo CO TPA Services Agreement with My Care App FINAL 04-23-20 DocuSign Envelope ID: 35445800-0714-4872-B1 B6-4E24606D3A40 applicable state or federal workers' compensation laws; provided,however,that CorVel shall have no obligation to defend, indemnify or hold harmless Customer from or against any Losses arising out of or relating to any suit or action resulting from(a) the negligent acts or omissions or willful misconduct of Customer, its officers or employees, or(b)actions taken by CorVel at the direction of Customer relating to the Services; and provided, further, that for purposes of computing Losses hereunder in connection with any suit or action there shall be deducted an amount equal to the amount of any insurance proceeds, indemnification payments, contribution payments or reimbursements received directly or indirectly by Customer in connection with such suit or action. (ii) Subject to Section 7D below, CorVel shall defend any third party suit or action against Customer to the extent such suit or action is based on a claim that Customer's permitted use of the CareMC Application under this Agreement constitutes an infringement of a United States patent, trademark, trade name, trade secret, copyright or other United States intellectual property right, and CorVel will pay those Losses finally awarded against Customer in any monetary settlement or final, non-appealable judgment of such suit or action which are specifically attributable to such claim. This indemnity does not apply to any claims based on Customer's use of the CareMC Application(a) in violation of this Agreement or the Documentation(as defined in the CareMC License Agreement), (b) in combination with any other software, hardware, network or system where the alleged infringement relates to such combination, or (c) based on CorVel's compliance with Customer's instructions,designs or specifications where the alleged infringement relates to such compliance. If any portion of the CareMC Application becomes, or in CorVel's opinion is likely to become, the subject of a claim of infringement, then CorVel may, at its option and expense, procure for Customer the right to continue using the CareMC Application or replace or modify the affected portion of the CareMC Application so that it becomes non-infringing. If neither alternative is reasonably available, CorVel may terminate this Agreement. THE FOREGOING STATES CORVEL'S ENTIRE LIABILITY AND CUSTOMER'S SOLE REMEDY FOR INFRINGEMENT CLAIMS. B. Conditions. CorVel's indemnification obligations under this Section 7 are contingent upon: (i) the indemnified party giving prompt written notice to the indemnifying party of any claim under this Section (provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent,and only to the extent,that the indemnifying party shall have been actually prejudiced as a result of such failure), (ii)the indemnifying party having the right, but not the obligation, to assume sole control of the defense or settlement of the claim,and(iii)at the indemnifying party's request and expense, the indemnified party cooperating in the investigation and defense of such claim(s). If the indemnifying party assumes the defense of any claim hereunder,the indemnified party shall be entitled to participate in (but not control) such defense and to retain its own counsel, at its own expense. The indemnifying party shall not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of the indemnified party or imposes additional obligations on the indemnified party, without the prior express written consent of the indemnified party. 8. TERM AND TERMINATION. A. Term. Unless provided otherwise on Exhibit B, the initial term of this Agreement shall begin on the Effective Date and continue through December 31, 2021 (the"Initial Term"). Thereafter on January 1 of each subsequent year, the Agreement shall be renewed automatically for subsequent one (1)-year terms (each a "Renewal Term"), unless either party gives written notice of its intent to terminate no less than thirty (30) days prior to the end of the then-current term. The Initial Term and any subsequent Renewal Term(s) are collectively referred to herein as the"Term". B. Termination for Convenience. This Agreement may be terminated by either party for convenience upon ninety(90)days written notice to the other party any time after the expiration of the Initial Term. City Pueblo CO TPA Services Agreement with My Care App FINAL 04-23-20 DocuSign Envelope ID: 35445800-0714-4872-B1 B6-4E24606D3A40 C. Termination for Cause. This Agreement may be terminated by either party for cause as follows: (i) upon thirty(30)days written notice if the other party breaches or defaults under any material provision of this Agreement or the CareMC License Agreement and does not cure such breach prior to the end of such thirty(30)day period,(ii)effective immediately and without notice if the other party ceases to do business, or otherwise terminates its business operations, except as a result of an assignment permitted under the terms and conditions of this Agreement,or(iii)effective immediately and without notice if the other party becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against the other and continues for ninety(90)days undismissed, unbonded and undischarged. D. Effects of Termination. Termination or expiration of this Agreement shall have the following effects: (i) all outstanding unpaid invoices rendered by CorVel shall become immediately payable by Customer and invoices in respect of services provided prior to termination but for which an invoice has not been submitted shall be payable immediately by upon submission of an invoice by CorVel, (ii) all licenses granted to Customer under this Agreement(including any and all Exhibits) shall terminate immediately, (iii) all rights of Customer to use the CareMC Application and Online Services shall cease immediately, (iv) provided Customer has paid all outstanding amounts due to CorVel under this Agreement, CorVel shall provide Customer with any proprietary data belonging to Customer,including but not limited to claim history, in the current format in which it is stored at CorVel at the termination of the Agreement, and(v) each party shall promptly return all claims files, information, documents, manuals and other materials belonging to the other party, whether in printed or electronic form, except as otherwise provided in this Agreement, including without limitation all Confidential Information of the other party then currently in its possession. E. Transition Period. Upon expiration or termination of the Agreement CorVel shall upon prior written request from Customer continue to provide Services to Customer for a period up to ninety(90) days after such expiration or termination of the Agreement pursuant to Exhibit B. Access to the CareMC Application shall continue during such timeframe at no costs to Customer. If Customer requests the CareMC Application beyond the ninety (90) day timeframe or CorVel shall continue to provide Open Claims services, CorVel shall also invoice for such Open Claims transfers and Administrative Fee as described hereunder in Exhibit B. CorVel shall assist and support in a reasonable manner during such transition period. CorVel will not provide such transition assistance or services if the Agreement is terminated pursuant to Section 8C as a result of a material breach by Customer for not payment of undisputed invoices and which is not curable to the satisfaction of CorVel. F. Survival. Except to the extent expressly provided to the contrary in this Agreement, any rights to accrued payments, any right of action for breach of the Agreement prior to termination, and the following provisions shall survive the termination of this Agreement: Sections 2B-2E, 3A, 3B, 3D, 4A, 4B, 5, 6, 7, 8E, 8F, 9, 10, 11 (as applicable) and the provisions identified the Section of the CareMC License Agreement titled"Effect of Termination". G. No Multi-year Fiscal Obligation on City. This Agreement is expressly made subject to the limitations of the Colorado Constitution. Nothing herein shall constitute, nor deemed to constitute,the creation of a debt or multi-year fiscal obligation or an obligation of future appropriations by the City Council of Pueblo,contrary to Article X, § 20 Colorado Constitution or any other constitutional, statutory or charter debt limitation.Notwithstanding any other provision of this Agreement, with respect to any financial obligation of the City which may arise under this Agreement in any fiscal year after 2021, in the event the budget or other means of appropriations for any such year fails to provide funds in sufficient amounts to discharge such obligation,such failure shall not constitute a default or breach of this Agreement, including any sub-agreement,attachment,schedule, or exhibit thereto, by the Customer. City Pueblo CO TPA Services Agreement with My Care App FINAL 04-23-20 DocuSign Envelope ID:35445800-0714-4872-B1 B6-4E24606D3A40 9. CONFIDENTIALITY A. Definition of Confidential Information. "Confidential Information" shall mean any non-public data, information and other materials regarding the products, services or business of a party (and/or, if either party is bound to protect the confidentiality of any third party's information, of a third party)provided to either party by the other party where such information is marked or otherwise communicated as being "proprietary"or"confidential"or the like, or where such information should, by its nature, be reasonably considered to be confidential and/or proprietary. Without limiting the foregoing,the parties agree that(i) the CareMC Application,My Care App, Documentation,CorVel Content(as defined in the in the CareMC License Agreement) and all software, source code, source documentation, inventions, know-how, and ideas, updates and any documentation and information relating thereto constitutes Confidential Information of CorVel, and (ii) the Customer Data (as defined in the CareMC License Agreement) constitute Confidential Information of Customer. B. Disclosure and Use of Confidential Information. The Confidential Information disclosed by either party ("Disclosing Party") to the other ("Receiving Party") constitutes the confidential and proprietary information of the Disclosing Party and the Receiving Party agrees to treat such Confidential Information in the same manner as it treats its own similar proprietary information, but in no case will the degree of care be less than reasonable care. The Receiving Party shall use the Confidential Information of the Disclosing Party only in performing under this Agreement and shall retain the Confidential Information in confidence and not disclose it to any third party (except as authorized under this Agreement) without the Disclosing Party's express written consent. The Receiving Party shall disclose the Disclosing Party's Confidential Information only to those employees and contractors of the Receiving Party who have a need to know such information for the purposes of this Agreement, and such employees and contractors must be bound by this Agreement or have entered into agreements with the Receiving Party containing confidentiality provisions covering the Confidential Information with terms and conditions at least as restrictive as those set forth herein. C. Exceptions.Notwithstanding the foregoing,the parties' confidentiality obligations hereunder shall not apply to information which: (i) is already known to the Receiving Party prior to disclosure by the Disclosing Party, (ii) becomes publicly available without fault of the Receiving Party, (iii) is rightfully obtained by the Receiving Party from a third party without restriction as to disclosure,(iv)is approved for release by written authorization of the Disclosing Party, (v) is developed independently by the Receiving Party without use of or access to the Disclosing Party's Confidential Information, or(vi) is required to be disclosed by law, rule, regulation, court of competent jurisdiction or governmental order, provided, however, that the Receiving Party shall advise the Disclosing Party of the Confidential Information required to be disclosed promptly upon learning thereof in order to afford the Disclosing Party a reasonable opportunity to contest, limit or assist the Receiving Party in crafting the disclosure, and then such disclosure shall be made only to the extent necessary to satisfy such requirements. D. Use of Data. Nothing shall prohibit CorVel from using aggregate, non-identifying, statistical data generated through its customers',including Customer,use of the CareMC Application and Online Services for analytical purposes, provided that CorVel shall not use or disclose any such data or information in a manner that would reveal the identity of,or other confidential information concerning,Customer and such data has been completely de-identified or scrubbed of any personal health information of claimants. Such aggregate, non-identifying statistical data could include, without limitation, statistics regarding usage of the CareMC Application and Online Services,the number of case referrals generated through the CareMC Application and Online Services and the efficiencies gained by CorVel customers through their use of the CareMC Application and Online Services. E. Colorado Consumer Data Privacy Act Compliance. CorVel warrants and guarantees that (a) CorVel shall promptly within twenty-four (24) hours notify Customer of any loss, theft, or unauthorized use or City Pueblo CO TPA Services Agreement with My Care App FINAL 04-23-20 DocuSign Envelope ID:35445800-0714-4872-B1 B6-4E24606D3A40 access to personal information (as defined within said Act) provided by Customer("Customer Data")and shall, to the extent applicable, comply with Section 6-1-716, C.R.S., as amended, and provide all information necessary for Customer to comply with said section; and(b)consistent with the requirements of Section 6-1-713.5,713.5, C.R.S., as amended, CorVel shall promptly notify Customer of any loss,theft, or unauthorized use or access to Customer Data and has implemented and shall maintain reasonable security procedures and practices that are: (i)Appropriate to the nature of the personal identifying information disclosed to CorVel; and (ii) Reasonably designed to help protect the personal identifying information from unauthorized access, use, modification, disclosure, or destruction; 10. GOVERNING LAW This Agreement shall be governed by and construed under the laws of the State of Colorado and the United States without regard to conflicts of laws provisions thereof. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. 11. DISPUTE RESOLUTION READ THIS DISPUTE RESOLUTION PROVISION CAREFULLY. IT WILL HAVE A SUBSTANTIAL IMPACT ON THE WAY THE PARTIES WILL RESOLVE ANY CLAIMS WHICH THEY HAVE AGAINST EACH OTHER NOW OR IN THE FUTURE. AMONG OTHER THINGS, IF A CLAIM HAS NOT BEEN RESOLVED THROUGH NEGOTIATION AND IS ARBITRATED: (i) NO PARTY WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR HAVE A JURY DECIDE THE CLAIM; (ii) A PARTY'S ABILITY TO OBTAIN INFORMATION OR DISCOVERY FROM ANOTHER PARTY AND TO APPEAL IS MORE LIMITED IN AN ARBITRATION THAN IN A LAWSUIT; (iii)THERE WILL BE NO RIGHT TO PURSUE A CLASS ACTION IN COURT OR IN ARBITRATION OR TO CONSOLIDATE CLAIMS; (iv) THE FEES CHARGED BY THE ARBITRATION ADMINISTRATOR MAY BE HIGHER THAN FEES CHARGED BY A COURT; AND (v) OTHER RIGHTS THAT A PARTY WOULD HAVE IN COURT MAY ALSO NOT BE AVAILABLE IN ARBITRATION. A. Negotiation and Escalation of Disputes. In the event of any dispute,controversy or claim arising from or relating to this Agreement or the breach thereof("Claim"), the parties will attempt in good faith to negotiate a solution to their differences,including progressively escalating any Claim through senior levels of management. If negotiation does not result in a resolution of the Claim within thirty (30) days of the date when one party first notifies the other of the Claim, any party desiring to pursue that Claim must do so exclusively pursuant to the arbitration provision set forth in Section 11B. B. Arbitration Provision. To the extent permitted by applicable law, any Claim which a party desires to pursue which has not been resolved through negotiation under Section 1IA shall be submitted to and finally resolved by arbitration in accordance with the following terms. (i) Claim. "Claim," as defined in Section 11A, includes, without limitation, initial claims and counterclaims,disputes based on statutes,regulations,ordinances,common law,equity, constitutions, contracts, torts and acts of every type (whether intentional, fraudulent, reckless or negligent),and requests for monetary and equitable relief. This arbitration provision shall apply to the parties hereto,to their officers,directors,employees, affiliates,agents,contractors,assigns and to third party beneficiaries of this Agreement. "Claim" includes only a party's individual claims and not class action,consolidated or private attorney general claims,as set forth in Section 11 B(vi). In addition,"Claim"does not include disputes about the validity,enforceability, coverage or scope City Pueblo CO TPA Services Agreement with My Care App FINAL 04-23-20 DocuSign Envelope ID: 35445800-0714-4872-B1 B6-4E24606D3A40 of this arbitration provision or any part thereof,(including,without limitation,the Class Action and Consolidation Waiver in Section 11.B.(vi) and/or this sentence); all such disputes are for a court and not an arbitrator to decide. Venue for such action shall be in a state court with jurisdiction located in Pueblo County, Colorado. However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court,to decide. (ii) Express Exclusion. Notwithstanding any provision of this Section 11 or otherwise in this Agreement to the contrary, Claim does not include and will not come within the scope of this arbitration provision if such claim is precluded by the Colorado Governmental Immunity Act, CRS §24-10-101 et seq. (iii) Governing Law. This Agreement involves interstate commerce, and this arbitration provision shall be governed, interpreted and enforced pursuant to the Federal Arbitration Act("FAA"),9 U.S.C. §§ 1 et seq. (and by the law of the state where [Customer] is located to the extent state law governs the enforceability of the arbitration provision under Section 2 of the FAA). (iv) Administrator. The arbitration shall be administered by the American Arbitration Association ("AAA") according to the Commercial Arbitration Rules (excluding the Optional Procedures for Large, Complex Commercial Disputes) and the Optional Rules for Emergency Measures of Protection of the AAA. A copy of the rules, forms and instructions for initiating an arbitration and additional information concerning the AAA may be obtained by contacting the AAA, 1633 Broadway,New York, NY 10019, (800)778-7879, www.adr.org. If the AAA cannot or will not serve and the parties are unable to select another administrator by mutual consent, a court with jurisdiction will select the administrator; provided that no arbitration may be administered, without the consent of all parties to the arbitration, by any organization that has in place a formal or informal policy that is inconsistent with and purports to override the terms of this arbitration provision. (v) Venue;Arbitrator Selection. Arbitration shall take place at a location agreed to by all parties or,in the absence of an agreement,at a place specified by the AAA. The arbitration shall be heard by one (1)arbitrator who must be disinterested, experienced in commercial transactions, and knowledgeable about the subject matter of this Agreement. The arbitrator shall be appointed jointly by the parties within thirty(30)days following the date on which the arbitration is instituted and shall apply the AAA rules. If the parties are unable to agree upon an arbitrator within said thirty(30)-day period,the arbitrator shall be selected by the AAA pursuant to its rules within thirty (30)days thereafter. (vi) Arbitrator Authority. The decision of the arbitrator shall be executory, final and binding upon the parties hereto,except for any appeal rights under the FAA.Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator shall follow the substantive law applicable to the Claim to the extent consistent with the FAA and this Agreement,applicable statutes of limitation and applicable privilege rules. The arbitrator will not have the power to award any damages excluded by, or in excess of, any damage limitations expressed in this Agreement. The arbitrator also will not have authority to conduct class-wide, consolidated or private attorney general arbitration,as set forth in Section 11B(vi). The arbitrator shall render a reasoned award.. (vii) Class Action and Consolidation Waiver. Regardless of anything else in this Agreement or this arbitration provision, no party to this Agreement or person or entity covered by this arbitration provision will be allowed to participate in a class action in court or in class-wide arbitration,whether as a class representative,class member or otherwise,or act as a private attorney general, in connection with any arbitration or court proceeding involving this Agreement or any City Pueblo CO TPA Services Agreement with My Care App FINAL 04-23-20 DocuSign Envelope ID:35445800-0714-4872-B1 B6-4E24606D3A40 Claim covered by this Agreement. In addition, any arbitration or court proceeding involving this Agreement or any Claim covered by this Agreement may not be joined or consolidated with any other arbitration or court proceeding involving a different agreement or different parties. The arbitrator has no power or authority to conduct class-wide,consolidated or private attorney general arbitration. The validity and effect of this Class Action and Consolidation Waiver may be determined only by a court and not by an arbitrator. If a determination is made in a proceeding involving the parties to this Agreement that the Class Action and Consolidation Waiver is invalid or unenforceable, only this sentence of this Arbitration Provision will remain in force and the remainder of this arbitration provision shall be null and void, provided that the determination concerning the Class Action and Consolidation Waiver shall be subject to appeal. (viii) Arbitration Costs. The compensation and expenses of the arbitrator and any administrative fees or costs associated with the arbitration proceeding shall be borne equally by the parties. The AAA's fee schedule is posted on its website or may be obtained by writing or calling the AAA. Each party must pay for that party's own attorneys, experts and witnesses unless applicable law,this Agreement or the AAA's rules provide otherwise. (ix) Continued Effect of Arbitration Provision. Subject to the terms of Section 11B(vi), this arbitration provision will remain in force even if(a) there is a breach of or default under this Agreement, (b) this Agreement has been terminated and (c) a party to this Agreement becomes bankrupt or insolvent or a bankruptcy or insolvency proceeding is begun by or against a party to this Agreement,to the extent consistent with applicable bankruptcy law. (x) Other Provisions. (a) If court proceedings to stay litigation or compel arbitration or otherwise enforce rights under this Agreement are necessary, the party who unsuccessfully opposes such proceedings will reimburse and pay all associated costs,expenses and attorneys'fees that are reasonably incurred by the other party. (b) In no event shall a demand for arbitration be made after the date when institution of a legal or equitable proceeding based on such Claim would be barred by the applicable statute of limitations. (c) All proceedings that take place under or in connection with this arbitration provision shall be considered Confidential Information of both parties and subject to appropriate confidentiality restrictions and/or protective orders except to the extent same may be subject to disclosure which may be required by law including the Colorado Open Records Act. (d) Either party may apply to the arbitrator to seek injunctive relief until such time as the arbitration award is rendered or the controversy is otherwise resolved. Either party also may, without waiving any remedy under this Agreement, seek from any court having jurisdiction, interim or provisional equitable relief that is necessary to protect the rights or property of that party, pending establishment of the arbitral tribunal. (e) In the event of a conflict between this arbitration provision and the rules or policies of the AAA,or between this arbitration provision and other parts of this Agreement,this arbitration provision shall govern. (xi) Acknowledgements. The parties hereby acknowledge that this Agreement is a commercial, not a consumer, contract; that they have had a full and fair opportunity to negotiate the terms of this Agreement and this arbitration provision and to consult with and utilize counsel of their choice before signing this Agreement; and that they have entered into this Agreement and this arbitration provision knowingly, intelligently, voluntarily and of their own free will. C. Injunctive Relief. Either party may apply to the arbitrator to seek injunctive relief until such time as the arbitration award is rendered or the controversy is otherwise resolved. Either party also may, without waiving any remedy under this agreement, seek from any court having jurisdiction, interim or provisional relief that is necessary to protect the rights or property of that party, pending establishment of the arbitral tribunal. City Pueblo CO TPA Services Agreement with My Care App FINAL 04-23-20 DocuSign Envelope ID:35445800-0714-4872-B1 B6-4E24606D3A40 D. Fees and Costs. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to an award of reasonable attorneys' fees and costs. 12. GENERAL PROVISIONS A. Contacts for Notices. The parties' contacts for notices to be provided under this Agreement shall be as set forth on the cover pages to this Agreement. B. Assignment. Neither this Agreement nor any rights, licenses or obligations hereunder, may be assigned by either party without the prior written consent of the non-assigning party. Notwithstanding the foregoing, CorVel may assign this Agreement to any acquiror of all or of substantially all of CorVel's equity securities, assets or business related to the subject matter of this Agreement. Any attempted assignment in violation of this Agreement shall be void and without effect. C. Severability. Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof, which shall continue in full force and effect. D. Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. E. Relationship of the Parties. The relationship of CorVel and Customer established by this Agreement is that of independent contractor, and nothing contained in this Agreement shall be construed to (i)give either party the power to direct or control the day-to-day activities of the other, (ii) constitute the parties as partners, franchisee-franchiser, joint venturers, co-owners or otherwise as participants in a joint or common undertaking, or(iii)otherwise give rise to fiduciary obligations between the parties. F. Force Majeure. Except for the obligation to make payments,nonperformance by either party shall be excused to the extent that performance is rendered impossible by war,acts of terrorism,strikes,fire,flood, hurricane,governmental acts or orders or restrictions,failure of suppliers,or any other reason where failure to perform is beyond the control of the non-performing party. G. Entire Agreement; Amendments. This Agreement and the Exhibits attached hereto constitute the entire, final, and complete agreement between the parties and supersedes all previous agreements or representations,oral or written,relating to the subject matter of this Agreement. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party. Both parties acknowledge having read the terms and conditions set forth in this Agreement and all attachments hereto, understand all terms and conditions, and agree to be bound thereby. H. Counterparts; Facsimile Signatures. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of a facsimile copy of a manually signed signature to this Agreement shall be deemed to be valid execution of this Agreement by the signatory. I. No Third Party Beneficiaries. This Agreement and the obligations hereunder are not intended to benefit any party other than the Customer and CorVel,except as expressly provided otherwise herein. No entity not a signatory to this Agreement shall have any rights or causes of action against any party to this Agreement as a result of that party's performance or non-performance under this Agreement, except as provided otherwise herein. J. Equal Employment Opportunity. In connection with the performance of this Agreement, Corvel shall discriminate against any employee or applicant for employment because of race, color, religion, sex, City Pueblo CO TPA Services Agreement with My Care App FINAL 04-23-20 DocuSign Envelope ID:35445800-0714-4872-B1 B6-4E24606D3A40 national origin, disability or age. Corvel shall endeavor to insure that applicants are employed, and that employees are treated during employment without regard to their race,color, religion, sex,national origin, disability or age. K. STATE-IMPOSED MANDATES PROHIBITING ILLEGAL ALIENS FROM PERFORMING WORK (a) At or prior to the time for execution of this Agreement (which may be referred to in this section as this "Contract"), Corvel (which may be referred to in this section as "Contractor") shall submit to the Purchasing Agent of City its certification that it does not knowingly employ or contract with an illegal alien who will perform work under this Contract and that the Contractor will participate in either the "E- Verify Program"created in Public Law 208, 104`h Congress, as amended and expanded in Public Law 156, 108th Congress, as amended, that is administered by the United States Department of Homeland Security or the "Department Program" established pursuant to §8-17.5-102(5)(c) C.R.S. that is administered by the Colorado Department of Labor and Employment in order to confirm the employment eligibility of all employees who are newly hired for employment to perform work under this Contract. (b) Contractor shall not: (I) Knowingly employ or contract with an illegal alien to perform work under this contract; (II) Enter into a contract with a subconsultant that fails to certify to Contractor that the subconsultant shall not knowingly employ or contract with an illegal alien to perform work under this Contract. (c) The following state-imposed requirements apply to this contract: (I) The Contractor shall have confirmed the employment eligibility of all employees who are newly hired for employment to perform work under this Contract through participation in either the E-Verify Program or Department Program. (II) The Contractor is prohibited from using either the E-Verify Program or Department Program procedures to undertake pre-employment screening of job applicants while this Contract is being performed. (III) If the Contractor obtains actual knowledge that a subcontractor or subconsultant performing work under this Contract knowingly employs or contracts with an illegal alien, the Contractor shall be required to: A. Notify the subconsultant and the Client's Purchasing Agent within three (3) days that the Contractor has actual knowledge that the subcontractor/subconsultant is employing or contracting with an illegal alien; and B. Terminate the subcontract with the subcontractor/subconsultant if within three (3) days of receiving the notice required pursuant to subparagraph (c)(llI)A. above the subcontractor/subconsultant does not stop employing or contracting with the illegal alien; except that the Contractor shall not terminate the contract with the subcontractor/subconsultant if, during such three(3)days,the subcontractor/subconsultant provides information to establish that the subcontractor/subconsultant has not knowingly employed or contracted with an illegal alien. (IV) The Contractor is required to comply with any reasonable request by the Colorado Department of Labor and Employment(hereinafter referred to as"CDLE")made in the course of an investigation that CDLE is undertaking pursuant to its authority under §8-17.5-102(5), C.R.S. City Pueblo CO TPA Services Agreement with My Care App FINAL 04-23-20 DocuSign Envelope ID:35445800-0714-4872-B1 B6-4E24606D3A40 (d) Violation of this Section 12 by the Contractor shall constitute a breach of contract and grounds for termination. In the event of such termination,the Contractor shall be liable for Client's actual and consequential damages. As used in this Section K, the terms"subcontractor"and"subconsultant" shall mean any subconsultant or subcontractor of CorVel rendering services within the scope of this Agreement. L. PERA LIABILITY Consultant shall reimburse the City for the full amount of any employer contribution required to be paid by the City of Pueblo to the Public Employees' Retirement Association ("PERA") for salary or other compensation paid to a PERA retiree performing contracted services for the City under this Agreement. The Consultant shall fill out the questionnaire and submit the completed form to Client as part of the signed Agreement. M. GOVERNMENTAL IMMUNITY. No term or condition of this contract shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions, of the Colorado Governmental Immunity Act, CRS §24-10-101 et seq., as applicable now or hereafter amended. City Pueblo CO TPA Services Agreement with My Care App FINAL 04-23-20