Res 2016-077/approving an administrative services agreement with United Healthcare Services, Inc. for the provision of medical, pharmacy, dental, flexible spending accounts (fsa), retiree, online enrollment tool and cobra benefits administration in a tot

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Employees. This provision shall survive the termination of this Agreement. The provisions of this paragraph do not constitute a waiver of any applicable local, State and federal rules and laws, including Sovereign Immunity, Chapter 101 of the Texas Civil Practice and Remedies Code, and Article XI, Section 7 of the Texas Constitution. This provision shall survive the termination of this Agreement. The provisions of this paragraph do not constitute a waiver of any applicable local, State and federal rules and laws, including Sovereign Immunity, Chapter 101 of the Texas Civil Practice and Remedies Code, and Article XI, Section 7 of the Texas Constitution. Customer obligations in this section are subject to Section 10.13. Section 6.2 United Indemnifies Customer. United will indemnify Customer and hold Customer harmless against any and all losses, liabilities, penalties, fines, costs, damages, and expenses, that Customer incurs, including reasonable attorneys' fees, which arise out of (i) United or its vendors' gross negligence or willful misconduct in the performance of United or its vendors', subcontractors' or authorized agents' obligations under this Agreement or (ii) United's material breach of this Agreement, all as determined by a court or other tribunal having jurisdiction of the matter. Notwithstanding the foregoing, Customer will remain responsible for payment of benefits and United's indemnification will not extend to indemnification of Customer or the Plan against any claims, liabilities, damages, judgments or expenses that constitute payment of Plan benefits. The benefit payment amount does not include losses, liabilities, penalties, fines, costs, damages, and expenses which may result from a legal action or party settlement. This provision shall survive the termination of this Agreement. Section 7 — Plan Benefits Litigation Section 7.1 Litigation Against United. If a demand is asserted, or litigation or administrative proceedings are begun by a Participant or healthcare provider against United to recover Plan benefits related to its duties under this Agreement ( "Plan Benefits Litigation "), United will select and retain defense counsel to represent its interest. Section 7.2 Litigation Against Customer. If Plan Benefits Litigation is begun against Customer and/or the Plan, Customer will select and retain counsel to represent its interest. Section 7.3 Litigation Against United and Customer. If Plan Benefits Litigation is begun against the Plan/Customer and United jointly (the Parties "), and provided no conflict of interest arises between the parties, the parties may agree to joint defense counsel. If the parties do not agree to joint defense counsel, then each party will select and retain separate defense counsel to represent their own interests. Section 7.4 Litigation Fees and Costs. All reasonable legal fees and costs United incurs will be paid by Customer (except as provided in Section 6.2) if United gives Customer reasonable advance notice of United's intent to charge Customer for such fees and costs, and United consults with Customer in a manner consistent with United's fiduciary obligations on United's litigation strategy. Section 7.5 Litigation Cooperation. Both parties will cooperate fully with each other in the defense of Plan Benefits Litigation. Section 7.6 Payment of Plan Benefits. In all events, Customer is responsible for the full amount of any Plan benefits paid as a result of Plan Benefits Litigation. Section 7.7 Survival. This provision shall survive the termination of this Agreement Section 8 — Mediation Except in the case of United's termination due to Customer's failure to provide funds for benefits or fees, in the event that any dispute, claim, or controversy of any kind or nature relating to this Agreement arises between the parties, the parties agree to meet and make a good faith effort to resolve the dispute. If the dispute is not resolved within thirty (30) calendar days after the parties first met to discuss it, and either party wishes to pursue the dispute further, that party will refer the dispute to non - binding mediation under the Commercial Mediation Rules of the American Arbitration Association ( "AAA "). In no event may the mediation be initiated more than one year after the date one party first gave written notification of the dispute to the other party. A single mediator engaged in the practice of law, who is knowledgeable about employee benefit plan administration, will conduct the mediation under the then current rules of the AAA. The mediation will be held in a mutually agreeable site. Nothing herein is intended to prevent either parry from seeking any other remedy available at law including seeking redress in a court of competent jurisdiction. This provision shall survive the termination of this Agreement.