HomeMy WebLinkAboutPROCESSWORKS, INC. 1
. .~ ' . 'J' ,
INSURANCE NOT REQUIRED
WORK MAY PROCEED
CLERK OF COUNCIL
DATE: 7-;10-07
0: ~r.3CnYle\ fllenefi Is
(t)(fq+ ~Vberrv)
THIS AGREEMENT entered into as of the first day of August, 2007 between ProcessWorks, Inc. (hereinafter "PWI") and The
City of Santa Ana, CA (hereinafter "Employer").
N-2007 -077
PROCESSWORKS, INC.
SECTION 125 AGREEMENT FOR SERVICE
WHEREAS, a Flexible Benefit Plan ("Plan"), is to be established by the Employer and designed to comply with Section 125 of
the Internal Revenue Code ("Code").
WHEREAS, the Plan incorporates professional material, and internally developed corporate information and proprietary
software and recordkeeping services.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES AND AGREEMENTS HEREIN
CONTAINED, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, THE PARTIES
AGREE TO THE FOLLOWING TERMS:
SECTION 1 - PWI RESPONSIBILITIES
1.1 PWl's services shall include preparation of an individualized Flexible Benefit Plan Document, Adoption Resolution and
Summary Plan Description unless Employer chooses not to have PWI prepare these items.
1.2 PWI agrees to make available the Plan materials to be used for the sole use ofthe Employer's Plan and not for distribution
to others. Stock communication and enrollment materials will be included as outlined in the attached Fee Schedule.
1.3 PWI agrees to provide recordkeeping, reports and administration services as outlined in the atrached Fee Schedule.
1.4 Data held in PWI's administration system and online is the legal property ofPWI.
1.5 PWl shall have the right to retain, at its own cost, outside services in preparing, implementing and operating the Plan.
1.6 One (1) chec will be faxed or emailed (based on Employer chd' )'t ployer designee wee listing either
reimbu~semen or iven wee 0 t' b prQ.e~7;~'~~' J~la;,
system IS busy to p ~ve 11;,) tl1\le
~m ill? ''''0
~~ }i~f ;{iW
The Employ ns P ,,~s Plili\,srrvic~5'vid P an ~riz~rpW'r to 0
necessary to prepare, implement, and operate the Employer's Plan to comply with legal requirements set forth in the
IC. \jJ1'~~tj15S?~~~,!~.,t~!..~egrlra~.iQP.~., 1. ,h'! Ijfi\pl~. ~'!rl.~n!'IP,~dr:ninistratorlsponsor has ultimate fiduciary responsibility and
IcJalfi\~ ~~!~~Jj\Y:it:rl i b'Lel " t,' L,Li i i : Lie iii',!!
The Employer agrees to provide data that PWI needs in comlnunication and enrollment of the Plan in a timely manner.
2.3 The Employer recognizes that the Plan Document is an important legal document and that it has been prepared to conform
to the desired provisions of the program. PWI cannot be responsible for the legal or tax aspects of the Plan or its
appropriateness for the Employer's situation. If EmployerlEmployer's representative requires customized language to be
incorporated into the Plan's legal document(s), Employer agrees to pay an hourly fee plus expenses for customization.
2.4 The Employer understands that requests for reimbursement are electronically scanned and digitally saved according to,
among other items, date received. PWI utilizes commercially reasonable hardware, software, and corresponding
procedures to safeguard the digital images.
2.5 The Employer understands PWI destroys all paper records including requests for reimbursement within either: 1) a
reasonable time period after the paper record has been electronically scanned and verified, or 2) the retention period
required by law. After such time period, the paper records are professionally destroyed when necessary and certificate
verification filed at PWI.
2.6 The Employer agrees to notify PWI about any required Employer sponsored plan design amendment(s) affecting its Plan,
such as employee classification, new hire eligibility, plan year, etc. If so contracted and paid, PWI will prepare and
provide Employer with updated legal documents. Plan amendment fees will apply.
2.7 The Employer is required to provide PWI with highly compensated and key employee information for nondiscrimination
testing on a timely basis to perform required testing. If one or more tests fail, the Employer is responsible to make the
necessary adjustments and to notify PWI of such adjustments after receiving notification from PWI. PWI cannot be
responsible for any penalties or fmes imposed by governmental agencies as a result or lack of these tests.
2.8 If a Form 5500 filing is required, and PWI is so contracted, the Employer must complete the necessary data information,
and return it to PWI in a timely marmer for PWI to prepare a signature-ready Form 5500 filing. The Employer is
responsible for reviewing all filings for accuracy prior to mailing to the appropriate governmental agency. PWI cannot be
responsible for any penalties or fines imposed by governmental agencies as a result or lack of these filings.
2.9 The Employer is required to distribute Summary Plan Description (SPD), Summary Material Modifications (SMM),
and/or Summary Annual Report (SAR) as defmed in the current governmental regulations.
2.10 Employer unconditionally guarantees that it is responsible for reimbursements made by ProcessWorks to its employees
under the terms this Agreement
2.11 In the event a claim for reimbursement is denied or pending, the Employer understands that the ultimate authority is with
the Employer and any complaints shall be directed or filed with the Employer.
2.12 If the Employer had the Plan in place prior to PWI being contracted as Plan Service Provider, PWI carmot be held
responsible for any prior plan year requirements including, but not limited to: Plan Document, Adoption Resolution,
Summary Plan Description, Form 5500 preparation, nondiscrimination testing, employee communication, and Plan
administration,
2.13 Employer designee must audit check register for accuracy. If any discrepancies occur, Employer designee must notify
PWI within one (1) business day.
2.14 In order to ensure proper communication between Employer's employees and PWI, Employer is responsible for
periodically downloading reports from Process Works , web site and administering self-audits comparing PWI data to
actual payroll and human resources data.
2.15 Employer agrees to notify PWI of changes in fax numbers or e-mail addresses used in the delivery of check registers. If
the check register serves a critical purpose in Employer's accounting and funding purposes, Employer agrees to notify
PWI if check register is not received by 4:00 p.m. CST on the specified check register delivery day.
2.16 Employer agrees to notify PWI of any employee new hires, terminations, or other changes via the paper Flex Benefit Plan
Enrollment/Change Form or electronically through PWI's corporate website. PWI will process these changes within a
reasonable time. If another method will be used, please state and initial the method:
SECTION 3 - FEES AND PAYMENT TERMS
3.1 The Employer agrees to pay to PWI the fees for all contracted services as detailed in the Fee Schedule hereto attached.
3.2 The fees will be payable by Employer to PWI net upon receipt of invoice or through a convenient pay plan whereby a
direct deduction is made from the Employer's bank account. Should Employer dispute any portion of the invoice,
Employer must inform PWI in writing of the circumstances of the dispute and pay the undisputed portion within the time-
required perid' yer agrees to adhere to these payment policies ani' 0' peas<!>>>i.ble collection>i.jj.fJ attorney fees
in the event of K
3.3 Notwithstandi n ~\ 0 t t ,I ch
time to time a he initi ter f a ~
change will be vided n, les 3~r ~ 1'r Iii,
3.4 The Employe sponst1Jf~'fo ell of fe nH pifrticip ts, p i ble. "F
3.5 IfPWI was contracted to prepare the Plan's legal documents, the Employer agrees to pay an armual fee as stated in the Fee
l,S. c..Il;,~,dNe.::~'![~!e,,~IJ~. ~...h.".ep+ijL\~L, t.81 tP.,e.,_,s., t'\"f~~.e,.~.c~ ,12. l>;n.:! t.,,~,""Jnet upon receipt) to have PWI update the legal documents
"~l1pirtq1i!!r.,,grgo~~\lta,I r~,g'l.I~tlonfctte9~~~f I i lJiLii :V
3.6 The Employer agrees to pay bank service fees, tnlvel expehses (where applicable) and production and printing costs if
customized materials are requested.
3.7 The fees and other amounts payable from Employer to PWI under this Agreement do not include any expenses of the Plan
that may be assessed or imposed by any governmental agency as a result of a Plan audit in which PWI is required to
participate. Employer shall directly pay any such expenses assessed against it regardless if the audit is performed on or
offsite and Employer shall promptly reimburse PWI for any and all expenses as a result of such audit.
3.8 In addition to the fees set forth in the attached Fee Schedule, The Employer agrees that should PWI be required or
requested to provide any services or supplies which are (I) not specified in this Agreement; (2) not known or should not
have reasonably been known by PWI when the fees were established; or (3) due to the Employer's negligence or untimely
discharge of obligations under this Agreement, PWI will be due fees in regard to providing such extra services and
supplies.
3.9 Any overpayments made to employees as a result of the Employer's failure, neglect, or delay of responsibility in
aforementioned 2.16 will be the liability of the Employer. Any subsequent bank charges as a result of the aforementioned
will be the liability ofthe Employer.
3.10 The Employer maintains responsibility to pay an administrative fee for all terminated employees who have participated
for the remainder of the Plan year in which the employee terminated employment for continued tracking and servicing as
required by governmental regulations.
SECTION 4 - DURATION OF AGREEMENT
4.1 There will be no additional charge for services performed for the administration of claims processed (incurred by plan
year-end but not submitted) during the run-out period as defmed in the Plan Document unless Employer terminates
services provided by PWI (See Section 7.6 for jUrther clarifIcation).
4.2 This Agreement shall remain in effect for a period offorty-one (41) months [August I, 2007 through December 3 1,2010]
from the start of the initial plan year, after which it shall be renewed automatically on the plan year armiversary date for
successive twelve (12) month periods ("Renewal Terms"), unless one party notifies the other in writing at least sixty (60)
days prior to the renewal date that it does not intend to renew.
, '.
SECTION 5 - TERMS OF AGREEMENT
5.1 Nothing contained herein shaU obligate the Employer to utilize PWI as its agent or broker in providing group benefits to
employees.
5.2 Neither PWI nor the Employer may act on behalf of the other party except as provided for in this Agreement and neither
party may bind nor execute a release on behalf of the other party except as authorized in writing by the other party.
5.3 Governing Law and Choice of Venue. This Agreement shall be governed by and construed in accordance with the Laws
of the state of Wisconsin to the extent not preempted by Privacy, Standards for Electronic Transactions, Security Rules,
or other applicable federal law. Any action at law, suit in equity or other judicial or arbitral proceeding for the
enforcement of breach of this Agreement or any provision thereof shall be instituted and conducted in the State of
California."
SECTION 6 - PROPRIETARY INFORMATION AND CONFIDENTIALITY
6.1 Each party agrees to hold the other party's Proprietary Information in strictest confidence and represents and warrants
that it will use reasonable due diligence so that neither it nor its agents or employees shall use such Proprietary
Information outside the scope of this Agreement, nor disclose, publish, duplicate, reproduce or permit the transfer of, or
otherwise make available, directly or indirectly, such Proprietary Information, in whole or in part, to persons other than
the receiving party's employees or agents who have a "need to know" for the purposes of this Agreement. Toward those
ends, each party will use at least the same degree of care to maintain the other party's Proprietary Information and to
prevent its publication, dissemination or disclosure to third parties as said party uses with respect to its own Proprietary
Information and materials and the information and materials of its clients. This Section (6. I) shall survive a termination
of this Agreement.
6.2 The foUowing shall be deemed "Proprietary Information" of PWI, respectively, for the purposes hereof: all information
regarding the development, use and operation of the Plan, and any changes, modifications, erthancements or additions
thereto, including but not limited to marketing materials, reference manual, documentation, software, forms,
communication materials, "know-how" and similar information generally regarded as confidential.
6.3 Employer agrees that all of the Proprietary Information of PWI is owned b an.d .shall remain the exclusive property of
PWI. '.'
SECTION 7 - TER
7.1 Notification 0
postage prepa(,'!oPWI s ei~ectJSi
days prior to' e renewa a e, I rem 0 e a ditiona rene e term. I win irlvoice for
all remaining fees due under the contract within thirty (30) days of receiving written notification of termination. The
,i't lin,~oic,"l~i\'9jl.,b~~e~d.gr,1fr.fvro5ehofp~iFir,jI!!trrb~U~~9~ \he last invoice prior to notification oftermination:
lh~ 1.!;)tjJ.erJ P.\ll:!y,~nalq ij~\f.,;th~ r1gj).l to \rlillieiljllt~1Yi ~\'11il~,. t~~ Agreement granted hereunder If the other party VIOlates any
material provision of this Agreement and fails to Clrre such'vioIation within thirty (30) days following receipt of written
notice thereof Nonpayment of any amounts due hereunder shall be deemed a material violation.
7.3 Notwithstanding the preceding- paragraphs, either party may terminate this Agreement for cause at anytime, "Cause"
shall be limited to any of the following reasons: (a) if either party becomes bankrupt or insolvent; (b) if either party fails
to perform its duties hereunder and such failure is not cured within thirty (30) business days of receipt of written notice
thereof; (c) if all or any portion of the Plan fails to comply with applicable provisions of the Code and regulations
thereunder; or (d) if some or all of the Plan is not legally or validly implemented.
7.4 Termination of this Agreement shall not relieve either party of its obligations, including the obligation to make payments
due, through the date of termination and after termination for additional services rendered on behalf of the Employer.
7.5 Termination hereunder is in addition to any other rights and remedies of the parties arising out of a breach of this
Agreement.
7.6 The Employer agrees to pay fees for the run-out periods in advance of work performed for recordkeeping/administration
processing, preparation of Form 5500, and for the fees and costs involved in the termination of the Plan at PWI or with
the appropriate governmental agencies. The invoice will be based on the number of participants billed on the last invoice
prior to notification of termination.
7.7 PWI will provide paper-based and electronic fmal reports after date of contract close and deliver as usual.
7.8 PWI will gather and send claims received after contract date to Employer at the end of every week for a six (6) month
period. PWI will not be responsible for any claims received after that date.
7.9 Upon any termination of this Agreement, Employer will promptly discontinue use and return to PWI all support material
and Proprietary Information ofPWI in Employer's possession.
7.10 In the event that payment of service fees is not received by PWI within sixty (60) days from the date payment is due, PWl
reserves the right to terminate this Agreement and discontinue aU recordkeeping and administration services for the Plan.
SECTION 8 - TERMINATION OF PLAN
8.1 As separate from the termination of this Agreement, the Employer agrees to notify PWl within thirty (30) days in the
event of termination of the Plan due to sale of company or bankruptcy of Employer. The Employer will be responsible
for all fees due until the contract term expires.
'.
9.8
SECTION 9 - MISCELLANEOUS
9.1 Excused Performance - The parties shall not be liable for, and are excused from, any failure to deliver or perform, or for
delay in delivery or performance due to a cause beyond their reasonable control, including but not limited to acts of
nature, governmental actions, fire, labor difficulties, civil disturbances, transportation, power or communication
interruptions, or natural disasters.
9.2 Waiver and Severability - The failure of either party to exercise in any respect any right provided for herein shall not be
deemed a waiver of any right hereunder, If any provisions of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired
thereby.
9.3 Entire Agreement - This Agreement and the attached Fee Schedule(s) constitute the entire agreement between the parties
in cormection with the subject matter hereof, and supersede all prior and contemporaneous agreements, understandings,
negotiations and discussions, whether oral or written, of the parties.
9.4 Amendments - This Agreement may not be amended except in writing signed by the parties.
9.5 Cornmencement of Service - The terms of this Agreement shall be valid only if it is executed and returned to PWI.
Services contracted for in this Agreement will not commence until this Agreement is executed and received by PWI.
9.6 Indemnification - The Employer and PWI mutually agree to indemnify and hold harmless each other (including their
directors, officers, agent and employees) from and against any claims. lawsuits, liabilities, damages and expenses,
including reasonable attorneys' fees, to the extent that, but only to the extent that, such claims are proximately caused by
the act or omission of the indemnifying party. The principles of comparative fault shall apply in interpreting the
respective rights of the parties under this paragraph. The obligations of this paragraph shaIl survive the expiration or
termination of this Agreement by any party for any reason.
9.7 Governing Law -. Governing Law and Choice of Venue. This Agreement shall be governed by and construed in
accordance with the Laws of the state of Wisconsin to the extent not preempted by Privacy, Standards for Electronic
Transactions. Security Rules, or other applicable federal law. Any action at law, suit in equity or other judicial or arbitral
proceeding for the enforcement of breach of this Agreement or any provi~i()Bthereof shall be instituted and conducted in
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IN WITNESS WHEREOF, the parties hereto have executed the foregoing on the date first above written.
The City of Santa Ana, CA
ATTEST:
//" .'--::---'4
~
/ ~ -. ~
-'-- \f.
PATRICIA E. HEALY .
Clerk of the Council
B:OHug~
S~e - as an auth . ed party 0 the Employer
Title: ~r~ Dt.{ ~
Date: 1- 1'1- D1-
ProcessWorks, Inc.
APPROVED AS TO FORM
~
L3.t;ra SLtt S.b::; dy
As::,:ista:i1t City Attorney
By: 4- .).~-
Signature - {s an authorized party of Process Works, Inc.
Title:
Date:
JE:DM>ENDED EOR APProVAL:
~!i~
ENRIQUE
EllEcu' ir
IBrsonnel Services Agency
ProcessWorks, Inc.
P. O. Box 2490
Brookfield, Wisconsin 53008-2490
www.processworks.com
The City of Santa Ana,CA
Section 125 Flexible Spending Account Plan Fee Schedule-Scarsdale Equities LLC
IMPLEMENTATION
. Implementation
- Plan design consultation and annual review
- Plan Document
- Surnmary Plan Description (SPD) (master copy)
- Adoption Resolution
- Flex Benefit Plan employee educational CD-ROM (one copy included)
Additional copies available upon request
- Employer Flex Resource Manual
. Annual nondiscrimination testing
. Newsletters and bulletins on regulatory changes and other newsworthy
items
. Customer Care Center phone support (Spanish assistance available)
. Annual enrollment (see choice of annual enrollment options below)
First Year Fee
$750
RENEWAL
. Annual nondiscrimination testing
. Updated Plan Document and Summary Plan Description as required for
inclusion of governmental regulatory changes
. Newsletters and bulletins on regulatory changes and other newsworthy
items
. Customer Care Center phone support (Spanish assistance available)
. Annual enrollment (see choice of annual enrollment options below)
Renewal Fee
$750
ANNUAL ENROLLMENT OPTIONS
1. Internet and Interactive Voice Resvonse (lVR) FSA Enrollments
This enrollment option allows employees to enroll at their convenience
using the Internet or touch-tone phone. Our Internet and interactive voice
response (IVR) systems were designed with the end-user in mind, making it
quick and easy for employees to enroll 24 hours a day, 7 days a week.
Our system is set up according to the client's plan design. Master
enrollment materials provided for client duplication includes an employee
communication piece, Internal Revenue Service regulation changes and
instructions for Internet and IVR system usage. Customer Care Center
representatives are available Monday through Friday, 7:00 AM to 5:00 PM,
Central Time to answer enrollment questions, Spanish assistance is
available. Confmnation statements are provided electronically or via mail
to employees' homes. Weekly progress reports indicating which employees
have completed their elections are provided. An additional $3 service
charge applies for each paper enrollment form received by Process Works
for manual processing.
2. Paver I Svreadsheet Enrollments
This enrollment option is for clients who prefer traditional paper-based
enrollments. Master enrollment materials provided for client duplication
include an employee communication piece, enrollment form and Internal
Revenue Service regulation changes, Customer Care Center representatives are
available Monday through Friday, 7:00 AM to 5:00 PM, Central Time to answer
enrollment questions. Spanish assistance is available. Flexible spending account
"', "
elections are submitted electronically via an easy-to-complete Microsoft Excel
spreadsheet template provided by ProcessWorks. Confirmation statements are
provided electronically or via mail to employees' homes. An additional $3
service charge applies for each paper enrollment form received by
Process Works for manual processing.
COMMUNICATION
The success of the Plan increases as an organization's participation increases.
One way to insure higher participation is by educating employees on the benefits
of the Plan. The use of our professionally prepared, award-winning instructional
CD-ROM has proven to increase employees' understanding offJexible spending
accounts and will generate enthusiasm to participate. Employees will learn how
to take advantage of the tax-saving benefits the Plan offers, how to estimate plan
year expenses and how to submit claims. This is an excellent tool for annual
enrollments and new hires as well.
One copy of the CD-ROM is included with initial implementation. Additional
copies available upon request. Note: the CD-ROM is also available on-line at
www.mvoTOcessworks.com.
Group and individual enrollment meetings with ProcessWorks' experienced
counselors are available either in person or via virtual teleconference.
MID-YEAR PLAN TAKEOVER
Process Works will he administration of the plan during the plan year
or administer the gra r I n y
to-date claim payme
submitted by the em
by Process Works.
Quoted upon request,
travel as applicable.
!'\ I j,., .1.,..",..H,J'-.'NJj41-~?'v-rl:: ('f .'.J:"inp' ,.oJ!'"''''.f
RECO.RDidEEPINGI;A !<WMOOSTMbI!JN:,CII;I~-
Employee Services
. Debit Card (optional)
. Participation in one or more spending account
. Daily claims processing
. Daily or weekly claims reimbursement frequency
. Choice of suhmitting claims by mail, fax or INTERNET
. Toll-free fax claims submission
. SAME DAY claims reimbursements for INTERNET claims -
the FASTEST in the industry
. Short two-business day turnaround for mailed or faxed claims
. Employee choice of direct deposit or paper check reimbursements
. Direct deposit advices via e-mail or mailed to employee's homes (postage
included)
. Paper checks mailed to employees' homes (postage included)
. 24/7 employee account access via phone or INTERNET
. INTERNET employee expense estimator (online worksheet)
. Automatic e-mail notification of claims receipt or reimbursements
. Detailed explanation of benefits with each reimbursement
. Fourth quarter account balance statement
. Toll-free Call Center Support
Based on participants as of
the first day of eacb plan
year:
<425
425 to 600
600 or more
$3.75
$3.65
$3.50
. .
,-. ,
Employer Services
. INTERNET access to view participant account information
. INTERNET, electronic file feed or paper submission of new hires,
terminations, and other life event changes
. On-demand reports via INTERNET
. Check register e-mailed or faxed weekly
. Annual non-discrimination testing
. Administration ofthe FSA grace period
. Administration of a full FSA and/or limited purpose FSA when combined
with an HAS
. No check minimum (unless requested)
. Check and deposit advice stock included
. T oil-free call center support
. Electronic transfer of funds for payment of administration invoices
OPTIONAL SERVICES
Debit Card
Employees with the debit card can also obtain one additional spouse/dependent
debit card free of charge. Additional spouse/dependent cards are available for a
one-time $5 fee for each card. Replacement cards are $5 for each reissuance.
These fees are the responsibility of the employee and are payable by personal
check.
$.75/month/cardholder
Third party substan .
of the nation's lead
utilize one of these
some debit card tran
may be charged by t
convenience.
~~~:i~n5~~~iM~f:;~;tlyt bqf!i\':~$'QDJ ,J;~\rn\i~'ii1ffli~l,;i1 Report, if
requu:ga. i! h,-.",X. .j, '\..?[..A, l,_f~..k'L~ r -""~- ;oc,,~CfT~r:rIT'"; il=fF-r ~
$150
Direct Mail of 4th Quarter Statement
Direct mail offourth quarter employee account balance notification statements
to employees' homes (no charge if statements are sent to employer for
distribution).
$.2~/slateHlent plu, poslnge
FEE WAIVED
Amendments
Amendments to existing Plan Document and Summary Plan Description.
$100/amendment
U(/~~/~UUJ ~~;~u rnh ~u~ UI~ V,~Y
INSURANCE NOI REQUIRED
WORK MAY PROCEED
CLERK OF COUNCIL
DATE: 7-p>-07
N-2007 -077
mPAA BUSINESS ASSOCIATE AGREEMENT
This Agreement is entered into between Employer, acting on behalf of the Plan (the "Plan(s)"),
and ProcessWorks, Inc., ("Business Associate"). The parties intend to use this Amendment to satisfy
the Business Associate contract requirements in the regulations at 45 CPR l64.502(e) and 164.504(e),
issued under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA").
1. Definitions
Terms used but not otherwise defined in this Agreement shall have the same meaning as those
tenus in 45 CPR 160.103 and 164.501. Notwithstanding the above:
''Covered Entity" shall mean the group health plan;
''Individual'' shall have the same meaning as the teem '~ndividual" in 45 CPR 160.103 and shall
include a person who qualifies as a personal representative in accordance with 45 CPR
l64.502(g);
''Privacy Rule" shall mean the Standards for Privacy of Individually Identifiable Health
Information at 45 CPR part 160 and part 164, subparts A and E;
"Protected Health Infonnation" shall have the same meaning as the term "protected health
information" in 45 CPR 160.103, limited to the information created or received by Business
Associate from or on behalf of Covered Entity;
"Required By Law" shall have the same meaning as the term "required by law" in 45 CPR
"S~~~~~ ,~~-;~ th~,~ecretary of tpe u.~,:"n,ep~~i;r;'~J~tli~d ~~an ~ices ~~
his de\<e: ,'I(:Ii! { '\ ,(1;'" '\,,'~ . ~ ~~ 'J'fJ; if'. '\1;, ~l~ If .~ '1': :~
"Security~. dden~. ~ sh~1 ha.f$1fi. e. sU... : .' mtllrlri~ias.. . .' . . is~(im'itl'i m~Mjt" 10.;' 5f" '.F.W"l""....
164 3~. '." ft\ ... ~\ I. ~. ~ ~~.. '1f;..- gr-1f :w, rJ. riJ1 ," .~.t.:. ~~
~ . .;iJt: '0;;" ~ 'l';" 1:'~' 1- "- "",.- Y,i.;" \,7'>-'"
"Security''ifUle'' siih' m~tthe s;cGnty"stan&rcfs!ia m~eme~tati~id;,dillcati~ns 1f43"Ck
;, !, . r~J~ and ~~ l~:. ~ubp~ C; a~d: ..
/.J.. \ f'~pt~8'jIsj~~o~~ r.!a~~llSj~lf>isha11 mean the final regulations issued by HHS
concemmg standard transactions an,fcode s~ts under the AdmiIristration Simplification
provisions ofHIPAA, 45 CPR part 160 and Part 162.
2. Obligations and Activities of Business Associate
(a) Business Associate agrees to not use or further disclose Protected Health Information other than as
permitted or required by Section 3.0 of this Agreement, or as Required by Law.
(b) Business Associate agrees to use appropriate safeguards to prevent use or disclosure of the
Protected Health Information other than as provided for by this Agreement. Business Associate
will implement administrative, physical, and technical safeguards that reasonably and
appropriately prOlect the confidentiality, integrity, and availability of electronic Protected Health
Information that it creates. receives, maintains, or transmits on behalf of Covered Entity as
required by the Security Rule.
(c) Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known
to Business Associate of a use or disclosure of Protected Health Information by Business
Associate in violation of the requirements of this Agreement.
(d) Business Associate agrees to report to Covered Entity any use dr disclosure of the Protected
Health Information not provided for by this Agreement of which it becomes aware and/or any
Security Incident of which it becomes aware.
Page 1
U"..L~(~UU' .L..L....... .....~. ......... "'.... "'...."
"e::.I"""""''''''
(e) Business Associate agrees to ensure that any agent, including a subcontractor, to whom it provides
Protected Health Information received from, or created or received by Business Associate on
behalf of, Covered Entity agrees to the same restrictions and conditions that apply through this
Agreement to Business Associate with respect to such information.
(t) Business Associate agrees to provide access to inspect and copy, at the request of Covered Entity
or an Individual, and in a prompt and reasonable manner consistent with the HlPAA regulations,
to Protected Health Information in a Designated Record Set, to the Covered Entity or directly to an
Individual in order to meet the requirements under 45 CPR 164.524.
(g) Business Associate agrees to make any Amendment(s) to Protected Health Information in a
Designated Record Set that the Covered Entity or an Individual directs or agrees to pursuant to 45
CPR 164.526 at the request of Covered Entity or an Individual, and in a prompt and reasonable
manner consistent with the HIP AA regulations.
(h) Business Associate agrees to make its internal practices, books, and records, including policies
and procedures and Protected Health Information, relating to the use and disclosure of Protected
Health Information received from, or created or received by Business Associate on behalf of,
Covered Entity available to the Covered Entity, or at the request of the Covered Entity, to the
Secretary in a prompt and reasonable manner, for purposes of the Secretary determining Covered
Entity's compliance with the Privacy Rule.
(i) Business"iSo19}!e agrees to document disclosures ofProt~ Y:f$artIJ'l'il.formation a'J
informatiatli. ..... rela~.,...l}~Cl..lfa'l&c1~.. fifes ~.. . !l1.1;t1J~.'r.~... ',' "'~'lo..rd~.....v. er."w~.~ 4t.j(...~~:te...~. ". .I!lll.. .....t\J!.'a. :"'.'
request byt4b'"1X'divjiuaithr a~' ~co.m~.<h~~~Ilt~"bft;"li~ilIea1' ~o''''.' .: ;~t{~.~
accordanc(!wlth 45..tFR'il64. ' 1 'tr j~, ~.,t ~ ",. ,,'Ii '" 1$ ot." "" "iJ) If
'('<I.t1h,.., ""i~f...... '~:;,,~#,. ~,!";",..o!,) ~~;~;}.. ~;j\.....<!.l)~.,J.~..,.,.-}i ~ iX' ~~.,JJY- ,$i ittf ~,j,:<I""{.~,J>f,"
(j) Business Associate agrees to provide to Covered Entity or an Individual an accounting of
! jqiWI~~Jt1'~-+t:1J\ll<i<jtef'.jf~1P f~~aAA~1\'fOrdance with 45 CFR 164.528, in a prompt and
"'I'eilsbn~ble ffilm'ner'co\islsien~\vltl\ :t&'iliP~ r~gu1atlOns.
(k) Business Associate agrees to satisfy all applicable provisions of HIP AA standards for electronic
transactions and code sets, also known as the Electronic Data Interchange (EDI) Standards, at 45
CFR Part 162. Business Associate further agrees to ensure that any agent, including a
subcontractor that conducts standard transactions on its behalf will comply with the ED!
Standards.
(I) Business Associate agrees to detennine the Minimum Necessary type and amount of PHI required
to perform its services and will comply with 45 CFR 164.502(b) and 514(d).
(m) Business Associate agrees to restrict the use or disclosure of Protected Health Information, and
document those restrictions, at the request of Covered Entity or an Individual pursuant to 45 CRF
164.522(a), in a prompt and reasonable manner consistent with the HlPAA regulations.
(n) Business Associate agrees to accommodate alternative means or alternative locations to
communicate Protected Health Information, and document those alternative means or alternative
locations, at the request of Covered Entity or an Individual, pursuant to 45 CRF l64.522(b), in a
prompt and reasonable manner consistent with the HIP AA regulations.
(0) Business Associate agrees to be the primary party responsible for receiving and resolving requests
from an Individual exercising his or her individual rights described in subsections (t), (g), 0), (m)
and (n) of this section 2.
Page 2
U{IL~{~UUf ~~;~U r~A ~u~ V'~ V'~V
3. Permitted or Required Uses and Disclosures by Business Associate
(a) General Use and Disclosure. fu:cept as otherwise limited in this Agreement, Business Associate
may use or disclose Protected Health Information to perform functions, activities, or services for,
or on behalf of, Covered Entity as specified in this Agreement, provided that such use or
disclosure of Protected Health Information would not violate the Privacy Rule, including the
Minimum Necessary requirement, if done by Covered Entity.
(b) Additional use and disclosure.
(i) Except as otherwise limited in this Agreement, Business Associate may use Protected
Health Information for the proper management and administration of the Business
Associate or to carry out the legal responsibilities of the Business Associate.
(ii) Except as otherWise limited in this Agreement, Business Associate may disclose Protected
Health Information for the proper management and administration of the Business
Associate, provided that such disclosures are required by law, or Business Associate
obtains reasonable assurances from the person to whom the information is disclosed that it
will remain confidential and be used or further disclosed only as required by law or for the
purpose for which it was disclosed to the person, and the person notifies the Business
~~fjate of any instances of which it is aware in 'l;,IWh.1ll&.C<?~i!dentiality of,1,\1e
mterm~lp'n has been breached. ~ ,l'~;r .~i
j)i.'/~ "~I-"1l~ I~ /.....'...,', .\;-o;!:''''~~. ,."'~"''; ...~"'''' ~ ,4"'~ ~';'"..::f~"''''':F. ~:.~ ~~ Ii. j:,'~ :t""~
(iii) FJtePic~ .je~se l~jd it HJi6.~' ~ ~~f~at~~~~~~~~il;";'
=:~Yt:~~~'~~~~~;Th~'B suf~toti~~:fth~cFR
164.504(e)(2)(i)(B).
, " . . H ~ I ' ' ..'~~
r~ j J ("! IlDP,}"'U::"':'i ,'~'h("::;r~:.; ; {l~"{;)l'~,'.irr~f
'- (i~j ';"'Bbsl!!(i~s' XJsoclln~ ma,hSse' Prole'dtillI Health Information to report violations of law to
appropriate Federal and State authorities, consistent with 45 CPR 164.502(j)(1).
4. Obligations of Covered Entity to Inform Business Associate of Covered Entity's Privacy
Practices, and any Authorization or Restrktions.
(a) Covered Entity shall provide Business Associate with the notice of privacy practices that Covered
Entity produces in accordance with 45 CPR 164520, as well as any chauges to such notice.
(b) Covered Entity shall provide Business Associate with any changes in, or revocation of,
Authorization by Individual or his or her personal represeutative to use or disclose Protected
Health Infonnation, if such changes affect Business Associate's uses or disclosures of Protected
Health Infonnation.
(c) Covered Entity shall notify Business Associate of any restriction to the use or disclosure of
Protected Health Information that Covered Entity has agreed to in accordance with 45 CFR
164.522, if such changes affect Business Associate's uses or disclosures of Protected Health
Information.
5. Permissible Requests by Covered Entity.
Covered Entity shall not request Business Associate 10 use or disclose Protected Health
Information in any manner that would not be permiSSible under the Privacy Rule if done by
Covered Entity.
Page 3
Uf/J.tf!",VUI -L~..LL I'n.a ""V"" Vi.... v......
6. Tenn and Termination
(a) Tenn. The Term of this Agreement shall be effective as of the effective date of the Agreement for
Service between ProcessWorks, Inc. and Employer, and shall terminate when all oftbe Protected
Health Information provided by Covered Entity 10 Business Associate, or created or received by
Business Associate on behalf of Covered Entity, is destroyed or returned to Covered Entity, or, if
it is infeasible to return or destroy Protected Health Information, protections are extended to such
information, in accordance with the termination provisions in this Section.
(b) TenninationfoT Cause. Without limiting the termination rights of the parties pursuant to the
contract between Employer and ProcessWorks, Inc., to provide the Plan (the "Contract"), and
upon Covered Entity's knowledge of a material breach by Business Associate of a provision under
this Agreement, Covered Entity shall provide an opportunity for Business Associate to cure the
breach or end the violation and terminate the Contract if Business Associate does not cure the
breach or end the violation within a reasonable time to be agreed upon by the Covered Entity and
Business Associate, or immediately terminate the Contract if Business Associate has breached a
material term of this Agreement and cure is not possible. If neither termination nor cure is feasible,
Covered Entity shall report the violation to the Secretary.
(c) Effect of Termination.
1. Except as provided in paragraph (b) of this section, upon termination of this Agreement,
fm:.~J!X re, as, ,on, Business Associate shall return o~ d,~w>X all. P,'"wected HealtlJJp, fO, rmati"on
~lv~m,' .Cove~~ EntItY.' ~~reated or recel;ee1'1IY :USlI~,' ~~ss~late Olb~~aIfO, .f,
~~~r.','~,',' '\1e~'pf,"~, ~' ~fP~~I' ,'e~" ", J 'e"fPfJ5!P'~,i',,~.:i;q~
p6~esslOn' su on. )rs"i>l gents ..~~ ~ ..... ,'" i:(lDu~Jlll'Asse"'ate on'lfl
", . ~ ~ In~f.m.a~;';.J, -,," ~t:~ ~;J" {/f( ~ ~ ~~
re n no c0J;11es "ef'.' ,tecti 1. e jfr~~l;;'UPrw W' ~ ;~Tf t.;1 ..-!.i',~ <h~ "t?
2. rn~ evenlof B~'Mess A~cia 'e-a~ne;tIfat returnfug ~t'll~strdhng me Pt6tliaea
Health Information is infeasible, Business Associate shall provide to Covered Entity
l~ I i (1 i tp mcl~0'fP{rth!:l~ct(ti~~ifW~ffturn or destruction infeasible. Upon notification
, , ....'!, l~.'thl.t'ietiIirl or UeittMtioi!'Of'ETot!CteU Htalth Information is infeasible, Business Associate
shall extend the protections of this Agreement to such Protected Health Information and
limit further uses and disclosures of such Protected Health Information to those purposes
that make the return and desttuction infeasible, for as long as Business Associate
maintains such Protected Health Information.
7. Misce1laneous
<a) Regulatory References. A reference in this Agreement to a section in the Privacy, Standards for
Electronic Transactions, or Security Rule means the section as in effect or as amended, and for which
compliance is re1juired.
(b) Amendment. Upon the enactment of any law or regulation affecting the use or disclosure of Protected
Health Information, or the publication of any decision of a court of the United States or any state relating
to any such law or the publication of any interpretive policy or opinion of any governmental agency
charged with the enforcement of any such law or regulation, either party may, by written notice to the
other party, amend the Contract and this Agreement in such manner as such party determines necessary
to comply with such law or regulation. If the 000 party disagrees with such Amendment, it shall so
notify the first party in writing within thirty (30) days of the notice. If the parties are unable to agree on
an Amendment within thirty (30) days thereafter, then either of the parties may terminate the Contract
on thirty (30) days written notice to the other party.
(c) Survival. The respective rights and obligations of Business Associate under Section 6.0 of this
Agreement shall survive the termination of this Agreement.
Page 4
"'/.I.;7'\".o:.UU' ...L.......l- .-U4 ........ ......... .........
(d) Interpretation. Any ambiguity in this Agreement shall be resolved in favor of a meaning that permits
Covered Fntity to comply with the Privacy, Standards for Electronic Transactions, or Security Rule.
(e) No rhirdparty beneficiary, Nothing expressed orimplied in this Agreement or in the Contract is
intended to confer, nor shall anything herein confer, upon any person other than the parties and the
respective successors or assignees of1he parties, any rights, remedies, obligatiOllS, or liabilities
whatsoever.
(f) Governing Law. 'This Agreement shall be governed by and construed in accordance with the laws of the
state ofWiscon.sin to 1he extent not preempted by the Privacy, Standards for Flectronic Transactions,
Security Rules or other applicable federal law.
A~to:
~a1fOfthe
Planes)
Title:kfiSmil'J. Ct'~ M~~ Title: C (0" (If? tlf q/JIrzritOv-
Date: '1 "'t~q~,+ Date: '11" ~,jl/ll(n-';!
~ @'!...~ _.,.~.P"'-!~"" --:IP'"'t_ ~'''''16- :'lV""~ r<1 .Po: ~~ .Ii r-~ f'I> ~-'!k li ......" ....:-..
~~-4':/ M{~-;~' ~~ "._ #; \&,&:. .~;. d ~ ,ltr.! ~"'>>Y i.'}.:'~"'Jf.i'q..tc,jjt:"~_;fi~~ iJ
flf.--' ',~\ ~'" m '$'$ f '~ ~.... ~.tt !c..., t! h., -? r< fR.f ,~,,~~ ~ ,,<> 'k.
~~ ;:; 'i! lRI$ 00; ~.... VJ;~l(2.,,--:;(J~~ tf~..t ~iji ~.~ ti if.'" ~\l'~" .; ~-~."
I;.~ ~ ;'f'~ Lf """ k; ',~ ii r~ ~l.9~~ '~~t ;~t- ~ if #." f;{ -~ ~51\~ :':1
....,~~''''' .1f-:i:<s,~ '::t;,..p"'- ""ll>~:'> 'l,,:>-......,:i ~<..,.:.'Jr ~O~<"'t'?I'!-f t. ~?::>,#.!.t:' ~ ~l;},::"..t-{"'".%i;r'
By:
a- cJ.~
,,-
ProcessWorks,Ine.
f -:'-"'~""~-i-.r.n ~("T--'l"r~,,~..q '-.-<1 f'"'\rl~'l"-Al,;rlr~I-".,
J~ ll':-jllf"~l""~""~'ll 'i,{~-fl--' ~ . l' t. il~t 1-'
~~1: 11 {,~..!I..t !O__ \,~{ .~, {~v..,A,...... -.JI.J'; ij~""- '. ,y
~llqn
~&~y
CLERK OF THE COUNCIL
^ I "n", \, I" -) f~O'
~""""',"'i'.') ( 'l{M
'. ~
. .'... --~
L,~ _. _, .] .' ~ '_"", _ ,-liv'
AS:.il~l~lE '-'It)' i\ltL1T:-:":":y
Page 5