HomeMy WebLinkAboutContract 53279 DocuSign Envelope ID:5BB04FED-30C7-42E4-B9D3-8AF4FDBCD37F
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M-URAUT NO. 5 3oq7°I
Dkc a 201� FORT WORTH
C�Gs
CITY OF FORT WORTH
VENDOR SERVICES AGREEMENT
This Vendor Services Agreement ("Agreement") reflects the agreement between the City
of Fort Worth, ("City"), a Texas home rule municipal corporation and Virgin Pulse, Inc., a
Delaware corporation("Vendor")for the City's purchase of health and wellness services provided
by Vendor for the City's employees.
The Agreement includes the following documents (collectively, Agreement Documents")
which shall be construed in the order of precedence in which they are listed:
1. Schedule A—Fort Worth Terms and Conditions;
2. Schedule B—Business Associate Agreement;
3. Schedule C—Vendor's Order Form, Scope of Services, Terms and Conditions and
Data Security Agreement(Vendor Agreement);and
4. Schedule D—Verification Of Signature Authority
Schedules A, B, C and D which are attached hereto and incorporated herein, are made a
part of this Agreement for all purposes. In the event of a conflict between the Fort Worth Terms
and Conditions and the Vendor Agreement, then the Fort Worth Terms and Conditions shall
control.
The Agreement shall become effective on January 1, 2020 (the"Effective Date")and shall
expire on December 31, 2024 (the Expiration Date"),unless terminated earlier in accordance with
the provisions of the Agreement or otherwise extended by the parties. The Agreement may be
renewed for three(3)one year renewals at City's option,each a"Renewal Term."City shall provide
Vendor with written notice of its intent to renew at least thirty (30) days prior to the end of each
term.
The undersigned represents and warrants that he or she has the power and authority to
execute this Agreement and bind the Vendor.
(signature page follows)
UFFOU 8 RECORD
0TV SECRCTARY
FT. WORTH" TX
Agreement Between City of Fort Worth
and Virgin Pulse,Inc. Page 1 of 40
DocuSign Envelope ID:5BB04FED-30C7-42E4-B9D3-8AF4FDBCD37F
Executed effective as of the date signed by the Assistant City Manager below.
FORT WORTH:
City of Fort Worth Contract Compliance Manager:
By signing I acknowledge that I am the
person responsible for the monitoring and
administration of this contract, including
By: ri ensuring all performance and reporting
Name s J. Cha requirements.
Title: Assistant Cit anager
Date: l2 L�60 kc�
By:
Approval Recommende Name: Vic iTieszen fe
Title: Wellness/EAP Manager
Approved as to Form andLegality:
By.
Name: � ickerso
Title: "rector, Hum esources
Department By:
Name: omas R.Hansen
Attest: Title: Assistant City Attorney
Contract Authorization:
' M&C:
By. 8111 iags' ao►q-5�8633
Name: aV y Kayser r . ;;
Title: ity Secretary '
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VENDOR: •'*-;-
Virgin Pulse, Inca
DocuSigned by:
By.
M �&f 6l&
cDL'tF�E�'id9E ...
Name: Kim Stephan Docuftned by:
Title: General Counsel E �o 'B�t
12/18/2 019 886F739814614BA...
Date: Assistant General Counsel TX
LFT
ICIAL REWRIDI'
Y SECRETARY
WORTHrTX
Agreement Between City of Fort Worth
and Virgin Pulse,Inc. Page 2 of 40
DocuSign Envelope ID:5BB04FED-30C7-42E4-B9D3-8AF4FDBCD37F
SCHEDULE A
CITY OF FORT WORTH
TERMS AND CONDITIONS
These Terms and Conditions to the Agreement between the City of Fort Worth and Virgin Pulse,
Inc. ("Fort Worth Terms and Conditions") are entered into by and between Virgin Pulse, Inc. ("Vendor")
and the City of Fort Worth("City"), collectively the"parties", for a purchase of licenses and a full range of
health and wellness services.
1. SCOPE OF SERVICES. VENDOR HEREBY AGREES, WITH GOOD FAITH AND DUE
DILIGENCE, TO PROVIDE THE CITY WITH A FULL RANGE OF HEALTH AND
WELLNESS SERVICES,AS OUTLINED IN SCOPE OF WORK INCLUDED IN SCHEDULE
C OF THE AGREEMENT, INCLUDING ANY ATTACHMENTS THERETO, ALL OF
WHICH ARE HEREBY MADE PART OF THE AGREEMENT FOR ALL PURPOSES.
2. TERM, The Agreement shall become effective on January 1, 2020 (the "Effective Date") and shall
expire on December 31, 2024 (Expiration Date), five (5) years after the Effective Date (the "Initial
Term"), unless terminated earlier in accordance with the provisions of the Agreement or otherwise
extended by the parties. City shall have the sole right to renew this Agreement for three (3)additional
one-year terms, each considered a "Renewal Term." If City desires to exercise an option to renew,
City shall notify Vendor in writing cf its intention to renew at least 60 days prior tc tre end of the
then-current term. Compensation to be paid during any Renewal Term shall be in accordance with
Section 2 of this Fort Worth Terms and Conditions, as seen below.
3. INVOICING AND COMPENSATION
3.1 Compensation paid to Vendor by City for services rendered under the Agreement shall be
in accordance with the Order Form included within the Agreement. Vendor shall provide
invoices monthly to City which indicate not only the amount invoiced for that months
services, but also a total amount that has already been invoiced for that year under the
Initial Term or Renewal Term of this Agreement. Total payment per year for the Initial
Term and any potential Renewal Terms of this Agreement will be as follows:
i. For the first three (3) years of the Initial Term the total payment under this
Agreement shall not exceed Five Hundred and Forty Thousand Dollars
($540,000.00)per year.
ii. Total payment for year four(4) of the Initial Term shall not exceed Five
Hundred and Sixty Thousand Dollars($560,000.00).
iii. Total Payment for year five (5) of the Initial Term shall not exceed Five
Hundred and Eighty Thousand Dollars ($580,000.00).
iv. Total payment for the first Renewal Term, if exercised by City, shall not
exceed Six Hundred and Five Thousand Dollars ($605,000.00).
V. Total Payment for the second Renewal Term, if exercised by City, shall
Agreement Between City of Fort Worth
and Virgin Pulse,Inc.—Schedule A Page 3 of 40
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not exceed Six Hundred and Thirty Thousand Dollars ($630,000.00).
vi. Total Payment for the third Renewal Term, if exercised by City, shall not
exceed shall not exceed Six Hundred and Thirty Thousand Dollars
($630,000.00).
3.2 City shall pay Vendor in accordance with the provisions of the Agreement Vendor shall
not perform and City shall not pay for any additional services not listed under this Fort
Worth Terms and Conditions. City agrees to pay all invoices of Vendor within thirty (30)
days of receipt of such invoice.
4. RECORDS AND RECORDS MANAGEMENT
4.1 Vendor will adhere to and follow the governing guidelines as they pertain to the protection
and use of collected data (personal/health/medical information). City may, to the extent
permissible under applicable law, obtain copies of such records solely for its internal
purposes and agrees to reimburse Vendor for the cost of such copies at the rate published
in the Texas Administrative Code in effect as of the time copying is performed.
4.2 Upon termination or expiration of this Agreement, Vendor agrees to return to the City, or
its designated agent, all personal/health/medical records delivered to Vendor in relation to
eligible participants (the "Eligibility Files") in the format originally provided by City.
Delivery of Eligibility Files is considered authorization from the affected City employees
or their representatives for Vendor to view and use the "Eligibility Files" (which
authorization may be given at any time so long as it is in accordance with applicable law
concerning confidentiality of medical records), Vendor may keep copies thereof at its sole
copying expense, or may subsequently request copies thereof from the City and shall
reimburse the City at the rate published the Texas Administrative Code in effect as of the
time copying is performed.
5. MINO TTY BUSINESS INTER_P_RTSEAMBEl PARTLCIPATION
5.1 A waiver of the goal for MBE/SBE subcontracting requirements was requested by the
Purchasing Division and approved by the Minority/Women Owned Business Enterprise
(M/WBE) Office, in accordance with the Business Diversity Enterprise (BDE)
Ordinance, because the purchase of goods or services is from sources where
subcontracting or supplier opportunities are negligible.
6. TERMINATION.
6.1 Convenience. Either City or Vendor may terminate the Agreement at any time and
for any reason by providing the other party with 30 days written notice of termination.
6.2 Breach. If either party commits a material breach of the Agreement, the non-
breaching Party must give written notice to the breaching party that describes the breach in
reasonable detail. The breaching party must cure the breach thirty (30) calendar days after receipt
Agreement Between City of Fort Worth
and Virgin Pulse,Inc.-Schedule A Page 4 of 40
DocuSign Envelope ID:5BB04FED-30C7-42E4-B9D3-8AF4FDBCD37F
of notice from the non-breaching party, or other time frame as agreed to by the parties. If the
breaching party fails to cure the breach within the stated period of time, the non-breaching party
may, in its sole discretion, and without prejudice to any other right under the Agreement, law, or
equity, immediately terminate this Agreement by giving written notice to the breaching party.
6.3 Fiscal Funding Out. In the event no funds or insufficient funds are appropriated by
City in any fiscal period for any payments due hereunder,City will notify Vendor of such occurrence
and the Agreement shall terminate on the last day of the fiscal period for which appropriations were
received without penalty or expense to the City of any kind whatsoever, except as to the portions of
the payments herein agreed upon for which funds have been appropriated.
6.4 Duties and Obligations of the Parties. In the event that the Agreement is terminated
prior to the Expiration Date, City shall pay Vendor for services actually rendered up to the effective
date of termination and Vendor shall continue to provide City with services requested by City and
in accordance with the Agreement up to the effective date of termination. Upon termination of the
Agreement for any reason, Vendor shall return all City provided data to City in accordance with
Section 10.5 in Schedule C.
7. Attorneys' Fees,Penalties,and Liquidated Damages. To the extent the attached Agreement requires
City to pay attorneys' fees for any action contemplated or taken, or penalties or liquidated damages in any
amount, City objects to these terms and any such terms are hereby deleted from the Agreement and shall
have no force or effect.
8. Law and Venue. The Agreement and the rights and obligations of the parties hereto shall be
governed by, and construed in accordance with the laws of the United States and state of Texas, exclusive
of conflicts of laws provisions. Venue for any suit brought under the Agreement shall be in a court of
competent jurisdiction in Tarrant County, Texas. To the extent the Agreement is required to be governed
by any state law other than Texas or venue in Tarrant County,City objects to such terms and any such terms
are hereby deleted from the Agreement and shall have no force or effect.
9. Linked Terms and Conditions. If the Agreement contains a website link to terms and conditions,the
linked terms and conditions located at that website link as of the effective date of the Agreement shall be
the linked terms and conditions referred to in the Agreement. To the extent that the linked terms and
conditions conflict with any provision of either this Fort Worth Terms and Conditions or the Agreement,
the provisions contained within this Fort Worth Terms and Conditions and the Agreement shall control. If
any changes are made to the linked terms and conditions after the date of the Agreement, such changes are
hereby deleted and void. Further, if Vendor cannot clearly and sufficiently demonstrate the exact terms and
conditions as of the effective date of the Agreement,all of the linked terms and conditions are hereby deleted
and void.
10. Insurance. The City is a governmental entity under the laws of the state of Texas and pursuant to
Chapter 2259 of the Texas Government Code, entitled "Self-Insurance by Governmental Units," is self-
insured and therefore is not required to purchase insurance. To the extent the Agreement requires City to
purchase insurance, City objects to any such provision,the parties agree that any such requirement shall be
null and void and is hereby deleted from the Agreement and shall have no force or effect. City will provide
a letter of self-insured status as requested by Vendor.
Agreement Between City of Fort Worth
and Virgin Pulse,Inc.-Schedule A Page 5 of 40
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11. Sovereign Immunity. Nothing herein constitutes a waiver of City's sovereign immunity. To the
extent the Agreement requires City to waive its rights or immunities as a government entity; such provisions
are hereby deleted and shall have no force or effect.
12. Limitation of Liability and Indemnity. To the extent the Agreement, in any way, limits the liability
of Vendor or requires City to indemnify or hold Vendor or any third party harmless from damages of any
kind or character, City objects to these terms and any such terms are hereby deleted from the Agreement
and shall have no force or effect. Otherwise the indemnification and limitation of liability provisions
contained in Schedule C applies herein.
13. IP Indemnification. Vendor agrees to indemnify, defend, settle, or pay, at its own cost and
expense, including the payment of attorney's fees, any claim or action against the City for
infringement of any patent, copyright, trade mark, service mark, trade secret, or other intellectual
property right arising from City's use of the Application Services,or any part thereof, in accordance
with this Agreement, it being understood that this agreement to indemnify,defend,settle or pay shall
not apply if City modifies or misuses the Deliverable(s). So long as Vendor bears the cost and expense
of payment for claims or actions against the City pursuant to this section 8, Vendor shall have the
right to conduct the defense of any such claim or action and all negotiations for its settlement or
compromise and to settle or compromise any such claim; however, City shall have the right to fully
participate in any and all such settlement, negotiations, or lawsuit as necessary to protect the City's
interest,and City agrees to cooperate with Vendor in doing so.In the event City,for whatever reason,
assumes the responsibility for payment of costs and expenses for any claim or action brought against
the City for infringement arising under this Agreement, the City shall have the sole right to conduct
the defense of any such claim or action and all negotiations for its settlement or compromise and to
settle or compromise any such claim; however, Vendor shall fully participate and cooperate with the
City in defense of such claim or action. City agrees to give Vendor timely written notice of any such
claim or action, with copies of all papers City may receive relating thereto. Notwithstanding the
foregoing,the City's assumption of payment of costs or expenses shall not eliminate Vendor's duty to
indemnify the City under this Agreement. If the Application Services , or any part thereof, is held to
infringe and the use thereof is enjoined or restrained or, if as a result of a settlement or compromise,
such use is materially adversely restricted,Vendor shall,at its own expense and as City's sole remedy,
either: (a) procure for City the right to continue to use the Application Services; or (b) modify the
Application Services to make them/it non-infringing, provided that such modification does not
materially adversely affect City's authorized use of the Application Services; or (c) replace the
Application Services with equally suitable, compatible, and functionally equivalent non-infringing
Application Services at no additional charge to City; or (d) if none of the foregoing alternatives is
reasonably available to Vendor, terminate this Agreement, and refund all amounts paid to Vendor
by the City, subsequent to which termination City may seek any and all remedies available to City
under law.VENDOR'S OBLIGATIONS HEREUNDER SHALL BE SECURED BY THE REQUISITE
INSURANCE COVERAGE REQUIRED BY CITY LISTED IN SECTION 14 BELOW.
14. Insurance.
14.1 The Vendor shall carry the following insurance coverage with a company that is licensed to do
Agreement Between City of Fort Worth
and Virgin Pulse,Inc.-Schedule A Page 6 of 40
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business in Texas or otherwise approved by the City:
14.1.1 Commercial General Liability:
14.1.1.1 Combined limit of not less than$2,000,000 per occurrence; $4,000,000
aggregate; or
14.1.1.2 Combined limit of not less than $1,000,000 per occurrence; $2,000,000
aggregate and Umbrella Coverage in the amount of $4,000,000. Umbrella
policy shall contain a follow-form provision and shall include coverage for
personal and advertising injury.
14.1.1.3 Defense costs shall be outside the limits of liability.
14.1.2 Automobile Liability Insurance covering any vehicle used in providing services
under this Agreement, including owned, non-owned, or hired vehicles, with a
combined limit of not less than$1,000,000 per occurrence.
14.1.3 Professional Liability (Errors & Omissions) in the amount of$1,000,000 per claim
and $1,000,000 aggregate limit.
14.1.4 Statutory Workers' Compensation and Employers' Liability Insurance requirements
per the amount required by statute.
14.1.5 Technology Liability(Errors&Omissions)
14.1.5.1 Combined limit of not less than $2,000,000 per claim; $4million aggregate or
14.1.5.2 Combined limit of not less than $1,000,000 per occurrence; $2,000,000
aggregate and Umbrella Coverage in the amount of $4,000,000. Umbrella
policy shall contain a follow-form provision and shall include coverage for
personal and advertising injury. The umbrella policy shall cover amounts for
any claims not covered by the primary Technology Liability policy. Defense
costs shall be outside the limits of liability.
14.1.5.3 Coverage shall include, but not be limited to,the following:
14.1.5.3.1 Failure to prevent unauthorized access;
14.1.5.3.2 Unauthorized disclosure of information;
14.1.5.3.3 Implantation of malicious code or computer virus;
Agreement Between City of Fort Worth
and Virgin Pulse,Inc.-Schedule A Page 7 of 40
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14.1.5.3.4 Fraud, Dishonest or Intentional Acts with final adjudication
language;
14.1.5.3.5 Intellectual Property Infringement coverage, specifically including
coverage for intellectual property infringement claims and for
indemnification and legal defense of any claims of intellectual
property infringement, including infringement of, copyright, trade
mark or trade secret,brought against the City for use of Deliverables,
Software or Services provided by Vendor under this Agreement;
14.1.5.3.6 Technology coverage may be provided through an endorsement to
the Commercial General Liability (CGL) policy, a separate policy
specific to Technology E&O, or an umbrella policy that picks up
coverage after primarycoverage is exhausted. Either is acceptable if
coverage meets all other requirements.Technology coverage shall be
written to indicate that legal costs and fees are considered outside of
the policy limits and shall not erode limits of liability. Any
deductible will be the sole responsibility of the Vendor and may not
exceed $50,000 without the written approval of the City. The
Technology E&O/Cyber policy has a $250,000 retention. Coverage
shall be claims-made, with a retroactive or prior acts date that is on
or before the effective date of this Agreement. Coverage shall be
maintained for the duration of the contractual agreement and for two
(2) years following completion of services provided. An annual
certificate of insurance,or a full copy of the policy if requested, shall
be submitted to the City to evidence coverage; and
14.1.5.3.7 Any other insurance as reasonably requested by City.
14.2 General Insurance Requirements:
14.2.1 All applicable policies shall name the City as an additional insured thereon, as its
interests may appear. The term City shall include its employees, officers, officials,
agents, and volunteers in respect to the contracted services.
14.2.2 The workers' compensation policy shall include a Waiver of Subrogation (Right of
Recovery) in favor of the City of Fort Worth.
14.2.3 A minimum of Thirty (30) days' notice of cancellation or reduction in limits of
coverage shall be provided to the City. Ten (10) days' notice shall be acceptable in
the event of non-payment of premium. Notice shall be sent to the Risk Manager, City
of Fort Worth, 1000 Throckmorton,Fort Worth,Texas 76102,with copies to the City
Attorney at the same address.
14.2.4 The insurers for all policies must be licensed and/or approved to do business in the
State of Texas. All insurers must have a minimum rating of A- VII in the current
A.M. Best Key Rating Guide, or have reasonably equivalent financial strength and
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and Virgin Pulse,Inc.-Schedule A Page 8 of 40
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solvency to the satisfaction of Risk Management. If the rating is below that required,
written approval of Risk Management is required.
14.2.5 Any failure on the part of the City to request required insurance documentation shall
not constitute a waiver of the insurance requirement.
14.2.6 Certificates of Insurance evidencing that the Vendor has obtained all required
insurance shall be delivered to and approved by the City's Risk Management
Division prior to execution of this Agreement.
15. Notices. All notices,requests, consents and other communications hereunder will be in writing,will
be addressed to the receiving party's address set forth below or to such other address as a party may designate
by notice hereunder, and will be either (i) delivered by hand, (ii) made facsimile transmission,
(iii) sent by overnight courier, or (iv) sent by registered mail or certified mail, return receipt requested,
postage prepaid.
If to the Covered Entity: If to the Vendor:
City of Fort Worth Virgin Pulse, Inc.
ATTN: Assistant City Manager for HR ATTN: General Counsel, Kim Stephan
200 Texas Street 75 Fountain Street
Fort Worth, Texas 76102 Providence, RI 02902
With copy to:
City Attorney's Office at same address
16. No Debt. In compliance with Article 11 § 5 of the Texas Constitution, it is understood and agreed
that all obligations of City hereunder are subject to the availability of funds. If such funds are not
appropriated or become unavailable, City shall have the right to terminate the Agreement except for those
portions of funds which have been appropriated prior to termination.
17. Assignment — Delegation. Except with respect to a Vendor's merger, acquisition or change of
control ("Event"), in which Vendor will provide reasonable notice after the Event occurs, no right, interest
or obligation of Vendor under this contract shall be assigned or delegated without the written agreement of
the City.Any attempted assignment or delegation of Vendor shall be whollyvoid and totally ineffective for
all purposes unless made in conformity with this paragraph.
18. Confidential Information. City is a government entity under the laws of the State of Texas and all
documents held or maintained by City are subject to disclosure under the Texas Public Information Act. To
the extent the Agreement requires that City maintain records in violation of the Act, City hereby objects to
such provisions and such provisions are hereby deleted from the Agreement and shall have no force or
effect.In the event there is a request for information marked Confidential or Proprietary,City shall promptly
notify Vendor. It will be the responsibility of Vendor to submit reasons objecting to disclosure.A
Agreement Between City of Fort Worth
and Virgin Pulse,Inc.-Schedule A Page 9 of 40
DocuSign Envelope ID:5BB04FED-30C7-42E4-B9D3-8AF4FDBCD37F
determination on whether such reasons are sufficient will not be decided by City, but by the Office of the
Attorney General of the State of Texas or by a court of competent jurisdiction.
19. Fort Worth Terms and Conditions Controlling. If any provisions of the Agreement,conflict with the
terms herein, are prohibited by applicable law, conflict with any applicable rule,regulation or ordinance of
City,the terms in this Fort Worth Terms and Conditions shall control.
20. Network Access.
20.1 City Network Access. If Vendor, and/or any of its employees, officers, agents, servants or
subcontractors (for purposes of this section "Vendor Personnel"), requires access to the City's computer
network in order to provide the services herein, Vendor shall execute and comply with the Network Access
Agreement at that time.
21. Immigration Nationality Act. Vendor shall verify the identity and employment eligibility of its
employees who perform work under this Agreement, including completing the Employment Eligibility
Verification Form (1-9). Upon request by City, Vendor shall provide City with copies of all I-9 forms and
supporting eligibility documentation for each employee who performs work under this Agreement. Vendor
shall adhere to all Federal and State laws as well as establish appropriate procedures and controls so that no
services will be performed by any Vendor employee who is not legally eligible to perform such services.
VENDOR SHALL.INDEMNIFY CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES,
LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY VENDOR,
VENDOR'S EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES. City, upon written
notice to Vendor, shall have the right to immediately terminate this Agreement for violations of this
provision by Vendor.
22. No Boycott of Israel. If Vendor has fewer than 10 employees or the Agreement is for less than
$100,000, this section does not apply. Vendor acknowledges that in accordance with Chapter 2270 of the
Texas Government Code, City is prohibited from entering into a contract with a company for goods or
services unless the contract contains a written verification from the company that it: (1) does not boycott
Israel; and (2) will not boycott Israel during the term of the contract. The terms "boycott Israel" and
"company" shall have the meanings ascribed to those terms in Section 808.001 of the Texas Government
Code. By signing this Fort Worth Terms and Conditions, Vendor certifies that Vendor's signature provides
written verification to City that Vendor: (1) does not boycott Israel; and(2) will not boycott Israel during
the term of the Agreement.
23. Right to Audit. Vendor agrees that City shall, until the expiration of three (3) years after final
payment under the Agreement, have access to and the right to examine any directly pertinent books,
documents, papers and records of Vendor involving transactions relating to the Agreement no more than
once a year.Vendor agrees that City shall have access during normal working hours to all necessary Vendor
facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance
with the provisions of this section. City shall give Vendor thirty(30)days written notice of intended audits
and audits shall be conducted at City's expense. .
(Signature Page to Follow)
Agreement Between City of Fort Worth
and Virgin Pulse,Inc.-Schedule A Page 10 of 40
DocuSign Envelope ID:5BB04FED-30C7-42E4-B9D3-8AF4FDBCD37F
ACCEPTED AND AGREED:
CITY:
City of Fort Worth Contract Compliance Manager:
By signing I acknowledge that I am the person
responsible for the monitoring and administration
of this contract, including ensuring all performance
By: and reporting requirements.
Name: Chap
Title: Assistant Cit anager
Date: N A W W SI By:
Name: VickiTieszen
Approval Recommend d: Title: Wellness/EAP Manager
r Approved as to Form and Legality:
By: _
Name: I n >ck r n
Titl lrector,4uman Resources Department By:
Name: Thomas R.Hansen
Attest: Title: Assistant City Attorney
Contract Authorizat'on:
`M&C: 19-0236 17,5/1q
By:
Name: a Kayser k� "
Title: City Secretary
VENDOR:
Virgin Pulse, Inc.
DocuSigned by:
By: �.` S*Aln.
Name:Kim Stephan Docuslgned by:
Title: General Counsel E54 .o vaa Aaa�&&
12/18/2019 9814614BA
Date: Assistant General Counsel
FOr-FOCCIALCOYARY
H, rX
Agreement Between City of Fort Worth
and Virgin Pulse,Inc.-Schedule A Page 11 of 40
DocuSign Envelope ID:5BB04FED-30C7-42E4-B9D3-8AF4FDBCD37F
SCHEDULE B
BUSINESS ASSOCIATE AGREEMENT
This Business Associate Agreement ("Agreement") is effective as of January 1, 2020 (the "Effective
Date"), by and between the City of Fort Worth on behalf of itself and its group health and welfare plans
(collectively the "Covered Entity") and Virgin Pulse, Inc. ("Business Associate").
RECITALS:
WHEREAS, Business Associate performs or assists in performing a function or activity on behalf
of Covered Entity that involves the use and/or disclosure of the Covered Entity's "protected health
information"(such information, as defined in 45 C.F.R. 160-103, as such provision is currently drafted and
if applicable subsequently updated, amended, or revised; referred to herein as "Protected Health
Information" or"PHI"); and
WHEREAS, the parties desire to enter into this Business Associate Agreement to govern the use
and/or disclosure of Protected Health Information as required by the Health Insurance Portability and
Accountability Act of 1996 ("HIPAA"), the Health Information Technology for Economic and Clinical
Health Act ("HITECH"), the Standards for Privacy of Individually Identifiable Health Information (the
"Privacy Rule"), and the Security Standards for the Protection of Electronic Protected Health Information
(the "Security Rule") promulgated thereunder (collectively, the "HIPAA Privacy Rules and/or Security
Standards").
NOW,THEREFORE,the parties hereto agree as follows:
1. DEFINITIONS. WHEN USED IN THIS AGREEMENT AND CAPITALIZED, THE
FOLLOWING TERMS HAVE THE FOLLOWING MEANINGS:
(a) "Breach" shall have the same meaning as the term "Breach" in 45 C.F.R.
§164.402.
(b) "Electronic Protected Health Information" or "ePHI" shall mean Protected
Health Information transmitted by electronic media or maintained in electronic media.
(c) "Individual" shall have the same meaning as the term "Individual" in 45 C.F.R.
§160.103 and shall include a person who qualifies as a personal representative in accordance
with 45 C.F.R. §164.502(g).
(d) "Privacy Rule" shall mean the Standards for Privacy of Individual Identifiable
Health Information as set forth at 45 C.F.R. Parts 160 and 164 Subparts A and E.
(e) "Protected Health Information" or "PHI" shall have the same meaning as the
term "protected health information" in 45 C.F.R.§ 160.103,limited to the information created
or received by Business Associate from or on behalf of Covered Entity.
(f) "Required by Law" shall have the same meaning as the term "required by law"
in 45 C.F.R. § 164.103.
(9) "Secretary" shall mean the Secretary of the Department of Health and Human
Agreement Between City of Fort Worth
and Virgin Pulse,Inc.—Schedule B Page 12 of 40
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Services or his or her designee.
(h) "Security Incident"shall mean any attempted or successful unauthorized access,
use, disclosure, modification or destruction of information or systems operations in an
electronic information system.
(i) "Security Rule"shall mean the Standards for Security of PHI, including ePHI,
as set forth at 45 C.F.R. Parts 160 and 164 Subparts A and C.
0) "Unsecured Protected Health Information" shall mean protected health
information that is not rendered unusable, unreadable, or indecipherable to unauthorized
persons through the use of a technology or methodology specified by the Secretary.
Terms used but not defined in this Agreement shall have the same meaning as those terms in the HIPAA
Privacy Rules and/or Security Standards.
2. OBLIGATIONS AND ACTIVITIES OF BUSINESS ASSOCIATE REGARDING
PHI.
(a) Business Associate agrees not to use or further disclose PHI other than as
permitted or required by this Agreement or as Required by Law.
(b) Business Associate agrees to use appropriate safeguards to prevent use or
disclosure of the PHI other than as provided for by this Agreement.
(c) Business Associate agrees to ensure that any agents, including sub-contractors
(excluding entities that are merely conduits), to whom it provides PHI agree to the same
restrictions and conditions that apply to Business Associate with respect to such information.
(d) Business Associate agrees to provide access, at the request of Covered Entity,
and in a reasonable time and manner designated by Covered Entity, to PHI in a Designated
Record Set that is not also in Covered Entity's possession, to Covered Entity in order for
Covered Entity to meet the requirements under 45 C.F.R. § 164.524.
(e) Business Associate agrees to make any amendment to PHI in a Designated
Record Set that the Covered Entity directs or agrees to pursuant to 45 C.F.R. § 164.526 in a
reasonable time and manner designated by Covered Entity.
(0 Business Associate agrees to make internal practices books and records relating
to the use and disclosure of PHI available to the Secretary, in a reasonable time and manner
as designated by the Covered Entity or Secretary, for purposes of the Secretary determining
Covered Entity's compliance with the Privacy Rule. Business Associate shall notify Covered
Entity fourteen (14) days upon receipt or notice of any request by the Secretary to conduct an
investigation with respect to PHI received from the Covered Entity.
(g) Business Associate agrees to document any disclosures of PHI that are not
excepted under 45 C.F.R. § 164.528(a)(1) as would be required for Covered Entity to respond
to a request by an Individual for an accounting of disclosures of PHI in accordance with 45
Agreement Between City of Fort Worth
and Virgin Pulse,Inc.—Schedule B Page 13 of 40
DocuSign Envelope ID:5BB04FED-30C7-42E4-B9D3-8AF4FDBCD37F
C.F.R. § 164.528.
(h) Business Associate agrees to provide to Covered Entity or an Individual, in a
time and manner designated by Covered Entity, information collected in accordance with
paragraph (g) above, to permit Covered Entity to respond to a request by an Individual for
an accounting of disclosures of PHI in accordance with 45 C.F.R. § 164.528.
(i) Business Associate agrees to use or disclose PHI pursuant to the request of
Covered Entity; provided, however,that Covered Entity shall not request Business Associate
to use or disclose PHI in any manner that would not be permissible under the Privacy Rule if
done by Covered Entity.
3. PERMiTTF_,D USES AND DISCLQSLEES OF PHI BY BUSINESS ASSOCIATE.
(a) Business Associate may use or disclose PHI to perform functions, activities or
services for, or on behalf of, Covered Entity in accordance with the terms of this Agreement,
provided that such use or disclosure would not violate the Privacy Rule if done by Covered
Entity.
(b) Business Associate may use PHI for the proper management and'administration
of Business Associate and to carry out the legal responsibilities of Business Associate.
(c) Business Associate may disclose PHI for the proper management and
administration of Business Associate and to carry out the legal responsibilities of Business
Associate if-
(i) such disclosure is Required by Law, or
(ii) Business Associate obtains reasonable assurances from the person to
whom the information is disclosed that such information will remain
confidential and used or further disclosed only as Required by Law or
for the purposes for which it was disclosed to the person,and the person
agrees to notify Business Associate of any instances of which it is aware
that the confidentiality of the information has been breached.
(d) Business Associate shall limit the PHI to the extent practicable, to the limited
data set or if needed by the Business Associate, to the minimum necessary to accomplish the
intended purpose of such use, disclosure or request subject to exceptions set forth in the
Privacy Rule.
(e) Business Associate may use PHI to provide Data Aggregation services to
Covered Entity as permitted by 45 C.F.R. § 164.504(e)(2)(i)(B).
4. OBLIGATIONS OF COVERED ENTITY REGARDING PHI.
(a) Covered Entity shall provide Business Associate with the notice of privacy
practices that Covered Entity produces in accordance with 45 C.F.R. § 164.520,as well as any
changes to such notice.
Agreement Between City of Fort Worth
and Virgin Pulse,Inc.—Schedule B Page 14 of 40
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(b) Covered Entity shall provide Business Associate with any changes in, or
revocation of, authorization by an Individual to use or disclose PHI, if such changes affect
Business Associate's permitted or required uses and disclosures.
(c) Covered Entity shall notify Business Associate of any restriction to the use or
disclosure of PHI that Covered Entity has agreed to in accordance with 45 C.F.R. § 164.522,
if such restrictions affect Business Associate's permitted or required uses and disclosures.
(d) Covered Entity shall require all of its employees, agents and representatives to
be appropriately informed of its legal obligations pursuant to this Agreement and the Privacy
Rule and Security Standards required by HIPAA and will reasonably cooperate with Business
Associate in the performance of the mutual obligations under this Agreement.
5. SECURITY OF PROTECTED HEALTH INFORMATION.
(a) Business Associate represents that it has implemented policies and procedures
to ensure that its receipt, maintenance, or transmission of all PHI, either electronic or
otherwise, on behalf of Covered Entity complies with the applicable administrative, physical,
and technical safeguards required protecting the confidentiality, availability and integrity of
PHI as required by the HIPAA Privacy Rules and Security Standards.
(b) Business Associate agrees that it will ensure that agents or subcontractors agree
to implement the applicable administrative, physical, and technical safeguards required to
protect the confidentiality, availability and integrity of PHI as required by HIPAA Privacy
Rules and Security Standards.
(c) Business Associate agrees to report to Covered Entity any Security Incident(as
defined 45 C.F.R.Part 164.304)of which it becomes aware.Business Associate agrees to report
the Security Incident to the Covered Entity as soon as reasonably practicable, but not later
than 10 business days from the date the Business Associate becomes aware of the incident.
(d) Business Associate agrees to establish procedures to mitigate, to the extent
possible, any harmful effect that is known to Business Associate of a use or disclosure of PHI
by Business Associate in violation of this Agreement.
(e) Business Associate agrees to notify Covered Entity within seventy-two (72)
hours upon discovery of any Breach of Unsecured Protected Health Information (as defined
in 45 C.F.R.§§ 164.402 and 164.410)and will provide to Covered Entity,to the extent available
to Business Associate, all information required to permit Covered Entity to comply with the
requirements of 45 C.F.R.Part 164 Subpart D.For the avoidance of doubt,Business Associate
and Covered Entity agree that this Exhibit B serves as notice of Security Incidents such as
routine scans or "pings" that do not pass Business Associate's firewall, unsuccessful log-on
attempts, denial of service attacks, and any combination of the above, as long as no such
incident results in unauthorized access, Use, Disclosure, destruction or modification of
Electronic PHI.
Agreement Between City of Fort Worth
and Virgin Pulse,Inc.—Schedule B Page 15 of 40
DocuSign Envelope ID:5BB04FED-30C7-42E4-B9D3-8AF4FDBCD37F
(0 Covered Entity agrees and understands that the Covered Entity is
independently responsible for the security of all PHI in its possession (electronic or otherwise),
including all PHI that it receives from outside sources including the Business Associate.
6. TERM AND TERMINATION.
(a) Term. This Agreement shall be effective as of the Effective Date and shall remain
in effect until the Business Associate relationship with the Covered Entity is terminated in
accordance with this Section 6 herein, and all PHI is returned, destroyed or is otherwise
protected as set forth in Section 6(e).
(b) Termination for Cause by Covered Entity. Upon Covered Entity's knowledge of
a material breach by Business Associate, Covered Entity shall provide an opportunity for
Business Associate to cure the breach. If Business Associate does not cure the breach within
30 days from the date that Covered Entity provides notice of such breach to Business
Associate, Covered Entity shall have the right to immediately terminate this Agreement and
any existing underlying services agreement between Covered Entity and Business Associate.
(c) Termination by Business Associate. This Agreement may be terminated by
Business Associate upon 30 days prior written notice to Covered Entity in the event that
Business Associate, acting in good faith, believes that the requirements of any law,legislation,
consent decree, judicial action, governmental regulation or agency opinion, enacted, issued,
or otherwise effective after the date of this Agreement and applicable to PHI. or to this
Agreement, cannot be met by Business Associate in a commercially reasonable manner and
without significant additional expense.
Effect of Termination. Upon termination of this Agreement for any reason,at the request of Covered
Entity, Business Associate shall return or destroy all PHI received from Covered Entity, or created
or received by Business Associate on behalf of Covered Entity.Business Associate shall not retain any
copies of the PHI unless return or destruction is deemed infeasible. If the return or destruction of
PHI is infeasible,Business Associate shall extend the protections of this Agreement to such PHI and
limit further uses and disclosures of such PHI to those purposes that make the return or destruction
infeasible,for so long as Business Associate maintains such PHI.For purposes of illustration only and
not to limit the set of circumstances that could potentially make return or destruction infeasible, it
would be infeasible for Business Associate to return or destroy certain PHI that is part of work
product that must be retained for document retention/archival purposes,as well as PHI that is stored
as a result of backup e-mail systems that store a-mails for emergency backup purposes
7. AMENDMENT.
The parties may agree to amend this Agreement from time to time in any other respect that they deem
appropriate. This Agreement shall not be amended except by written instrument executed by the parties.
8. INDEMNIFICATION.
Business Associate shall indemnify and hold harmless Covered Entity from and against any and all
costs, expenses, claims, demands, causes of action, damages, attorneys' fees and judgments that arise out of
Agreement Between City of Fort Worth
and Virgin Pulse,Inc.—Schedule B Page 16 of 40
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or that may be imposed upon, incurred by, or brought against Covered Entity to the extent directly resulting
from a breach of this Agreement or any violation of the Privacy Rule or other applicable HIPAA regulations
by Business Associate. The indemnification obligations provided for in this Section will commence on the
effective date of this Agreement and will survive its termination.
9. SEVERABILITY.
The parties intend this Agreement to be enforced as written. However, (i) if any portion or provision of
this Agreement is to any extent declared illegal or unenforceable by a duly authorized court having
jurisdiction, then the remainder of this Agreement, or the application of such portion or provision in
circumstances other than those as to which it is so declared illegal or unenforceable, will not be affected
thereby, and each portion and provision of this Agreement will be valid and enforceable to the fullest extent
permitted by law; and (ii) if any provision, or part thereof, is held to be unenforceable because of the
duration of such provision,the Covered Entity and the Business Associate agree that the court making such
determination will have the power to modify such provision, and such modified provision will then be
enforceable to the fullest extent permitted by law.
10. NOTICES.
All notices,requests,consents and other communications hereunder will be in writing,will be addressed
to the receiving party's address set forth below or to such other address as a party may designate by notice
hereunder, and will be either(i) delivered by hand, (ii)made facsimile transmission, (iii) sent byovernight
courier, or(iv) sent by registered mail or certified mail,return receipt requested,postage prepaid.
If to the Covered Entity: If to the Business Associate:
City of Fort Worth Virgin Pulse, Inc.
ATTN: Assistant City Manager for HR ATTN: Kim Stephan, General Counsel
200 Texas Street 75 Fountain Street
Fort Worth, Texas 76102 Providence, RI 02902
with copy to:
City Attorney's Office at same address
11. REGULATORY REFERENCES.
A reference in this Agreement to a section in the Privacy Rule means the referenced section or its
successor, and for which compliance is required.
12. HEADINGS AND CAPTIONS.
The headings and captions of the various subdivisions of the Agreement are for convenience of
reference only and will in no way modify or affect the meaning or construction of any of the terms or
provisions hereof.
13. ENTIRE AGREEMENT.
This Agreement sets forth the entire understanding of the parties with respect to the subject matter set
forth herein and supersedes all prior agreements, arrangements and communications, whether oral or
Agreement Between City of Fort Worth
and Virgin Pulse,Inc.—Schedule B Page 17 of 40
DocuSign Envelope ID:5BB04FED-3OC7-42E4-B9D3-8AF4FDBCD37F
written,pertaining to the subject matter hereof.
14. BINDING EFFECT, THE PROVISIONS OF THIS AGREEMENT SHALL BE
BINDING UPON AND SHALL INURE TO THE BENEFIT OF BOTH PARTIES AND THEIR
RESPECTIVE SUCCESSORS AND ASSIGNS.
15. NO WAIVER OF RIGHTS.POWERS AND REMEDIES.
No failure or delay by a party hereto in exercising any right, power or remedy under this Agreement,
and no course of dealing between the parties hereto, will operate as a waiver of any such right, power or
remedy of the party.No single or partial exercise of any right,power or remedy under this Agreement by a
party hereto, nor any abandonment or discontinuance of steps to enforce any such right,power or remedy,
will preclude such party from any other or further exercise thereof or the exercise of any other right,power
or remedy hereunder. The election of any remedy by a party hereto will not constitute a waiver of theright
of such party to pursue other available remedies.No notice to or demand on a party not expressly required
under this Agreement will entitle the party receiving such notice or demand to any other or further notice
or demand in similar or other circumstances or constitute a waiver of the right of the party giving such
notice or demand to any other or further action in any circumstances without such notice or demand. The
terms and provisions of this Agreement may be waived, or consent for the departure therefrom granted,
only by written document executed by the party entitled to the benefits of such terms or provisions.No such
waiver or consent will be deemed to be or will constitute a waiver or consent with respect to any other terms
or provisions of this Agreement,whether or not similar. Each such waiver or consent will be effective only
in the specific instance and for the purpose for which it was given,and will not constitute a continuing waiver
or consent.
16. GOVERNING LAW: VENUE.
This Agreement will be governed by and construed in accordance with the laws of the State of Texas.
Should any action, whether real or asserted, at law or in equity, arise out of the execution, performance,
attempted performance of this Agreement,venue for said action shall lie in Tarrant County, Texas.
17. MERPRETATION.
It is the parties' intent to comply strictly with all applicable laws, including without limitation,
HIPAA, state statutes, or regulations (collectively, the "Regulatory Laws"), in connection with this
Agreement. In the event there shall be a change in the Regulatory Laws, or in the reasoned interpretation of
any of the Regulatory Laws or the adoption of new federal or state legislation, any of which are reasonably
likely to materially and adversely affect the manner in which either party may perform or be compensated
under this Agreement or which shall make this Agreement unlawful, the parties shall immediately enter
into good faith negotiations regarding a new arrangement or basis for compensation pursuant to this
Agreement that complies with the law,regulation or policy and that approximates as closely as possible the
economic position of the parties prior to the change. In addition, the parties hereto have negotiated and
prepared the terms of this Agreement in good faith with the intent that each and every one of the terms,
covenants and conditions herein be binding upon and inure to the benefit of the respective parties.
Agreement Between City of Fort Worth
and Virgin Pulse,Inc.—Schedule B Page 18 of 40
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18. Review of Counsel. The parties acknowledge that each party and its counsel have had the
opportunity to review and revise this Agreement and that the normal rules of construction to the effectthat
any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of
this Agreement or exhibits hereto.
19. mature Authority. The person signing this Agreement hereby warrants that he or she has
the legal authority to execute this Agreement on behalf of his or her respective party, and that such binding
authority has been granted by proper order, resolution, ordinance or other authorization of the entity. The
other party is fully entitled to rely on this warranty and representation in entering into this Agreement.
IN WITNESS WHEREOF, and intending to be legally bound hereby, each party hereto warrants and
represents that this Agreement has been duly authorized by all necessary corporate action and that this
Agreement has been duly executed by and constitutes a valid and binding agreement of that party.All signed
copies of this Agreement will be deemed originals. Signed signature pages may be transmitted by facsimile
or e-mail, and any such signature shall have the same legal effect as an original signature.
IN WITNESS WHEREOF, the parties have executed this Business Associate Agreement as of the
Effective Date.
COVERED EN7 BUSINESS ASSOCIATE:
DocuSlgned by:
By:_ {GV�'�� By:
DCIFCE2159E44DA...
Namely Name: Kim Stephan
Title: Assistant CityManager 'rµ ` Title:
g r, �. r�eneral counsel
AT
DocuSlgned by:
a Kayser C
Y Y � _ 886F1398146146A...
Cityy Secretary
Assistant General Counsel
APPROVED TO FORM D LEGALITY:
Thomas R. Han n
Assistant City Attorney
CONTRACT AUTHORIZATION:
M&C#
E
L�ElRFC
1rww,
Agreement Between City of Fort Worth
and Virgin Pulse,Inc.—Schedule B Page 19 of 40
DocuSign Envelope ID:5BB04FED-30C7-42E4-B9D3-8AF4FDBCD37F
Schedule C - Vendor's Agreement
Order Form: Virgin Pulse Engage
Order Form Prepared for: City of Fort Worth Bill To Address: 200 Texas Street,Fort Worth,TX 76102
Expiration Date: 12/31/2024* Contact Name: Vicki Tieszen
Prepared By: Cheryl Phillips Contact Email: vicki.tieszen@fortworthtexas.gov
Contact Phone: 817-392-8556
This Order Form and all accompanying appendices shall be referred to as the'Agreement."
The Initial Term of this Agreement will commence on the Effective Date and will expire on the Initial Order End Date.
*The Contract shall be executed for a five-year initial term with three(3)one-year options to renew at the City's sole discretion.
The Effective Date of this Order Form is the last date it is signed by both parties below.
Subscription Services
Initial Initial
Order Initial Order Per Eligible Per Month
Services Start Order End Term Price Minimum Eligible Lives
Date Date (mos)
- - - -
PEPM
Yrs 1—3$1.95
Platform Fees:Engage— 1/1/2020 12/31/2024 60 Year 4-$2.05 6390
Employees
Year 5—$2.15
Platform Fees:Engage— PEPM
Employees Year 6-$2.26
1/1/2025 12/31/2027 36 6390
Year 7-$2.37
Option 3 year renewals
Year 8—$2.49
PEPM
Platform Fees:Engage— Yrs 1—3$0.50
1/1/2020 12/31/2024 60 1530
Spouses Year 4-$0.53
Year 5—$0.55
Platform Fees:Engage— PEPM
Spouses Year 6-$0.58
1/1/2025 12/31/2027 36 1530
Year 7-$0.61
Option 3 year renewals
Year 8—$0.64
Live Coaching Fees: PEPM
Lifestyle Management- 1/1/2020 12/31/2020 12 6390
Employee Year 1-$2.40
Live Coaching Fees: PEPM
Lifestyle Management- 1/1/2020 12/31/2020 12 1530
Spouse Year 1-$0.25
Agreement Between City of Fort Worth
and Virgin Pulse,Inc.—Schedule C Page 20 of 40
DocuSign Envelope ID:5BB04FED-30C7-42E4-B9D3-8AF4FDBCD37F
Initial Initial Initial
Order order Per Eligible Per Month
Services Order End Minimum Eligible Lies
Start Date Term Price
Date (mos)
Live Coaching Fees: PEPM
Yrs2-3$2.40
Total Health Population- 1/1/2021 12/31/2024 48 6390
Employee Year 4-$2.52
Year 5-$2.65
Live Coaching Fees: PEPM
Total Health Population— Year 6-$2.78
1/1/2025 12/31/2027 36 6390
Employee
Year 7-$2.92
Option 3 year renewals Year 8-$3.06
Live Coaching Fees: PEPM
Yrs2-3$1.80
Total Health Population- 1/1/2021 12/31/2024 48 1530
Spouse Year 4-$1.89
Year 5-$1.98
Live Coaching Fees: PEPM
Total Health Population— Year 6-$2.08
Spouse 1/1/2025 12/31/2027 36 1530
Year 7-$2.19
Option 3 year renewals Year 8-$2.30
PEPM
Yrs 1-3$0.30
Financial Wellness-FinFit 1/1/2020 12/31/2024 60 Year 4-$0.32 7920
—Employees and Spouses
Year 5—$0.33
PEPM
Financial Wellness-FinFit
Year 6 $0.35
—Employees and Spouses
1/1/2025 12/31/2027 36 7920
Year 7-$0.36
Option 3 year renewals Year 8—$0.38
Payment Terms and Conditions:
1. The Subscription Services Fees will be invoiced monthly in advance based on the greater of the(a)Minimum Number of Eligible Lives
as of Effective Date or(b)the actual number of Eligible Lives on record in Provider's system at the time of invoice.
2. The initial Subscription Services Fees invoice under this Order Form shall be issued on the Initial Order Start Date.Thereafter,the
invoices shall be issued monthly,following the Initial Order Start Date for the period of the Term.
3. All Subscription Services
4. fees shall be due and payable within thirty(30)days of the date of the invoice.
Additional
Agreement Between City of Fort Worth
and Virgin Pulse,Inc.—Schedule C Page 21 of 40
DocuSign Envelope ID:5BB04FED-30C7-42E4-B9D3-8AF4FDBCD37F
Services Billing Type Per Unit Price Minimum Quantity
Implementation Per Unit $0 1
Verified Form Processing
Per Form $11.95 0
PCP
Data Analytics
Incorporated Into Medical
a Per Month $1,100 12
and Pharmacy Claims
(Claims Integration)
Custom Communications
Credit Annual Credit ($30,000) 1
Custom Communications Hourly $150 0
Whil LaunchPad Per Unit $0 1
Payment Terms and Conditions:
1. Implementation fees have been waived for current active clients.
2. One inbound SSO and 5 outbound SSO's included at no additional cost.
3. The Communications Service Credit is annual and expires at the end of each program year.Unused credit cannot be carried over each
year;it cannot be applied to non-communication related services(e.g.reporting).It cannot be applied to hard costs like printing of
materials or postage for shipping.
4. All Additional Services fees are due and payable within thirty(30)days of the invoice.
All other Additional Services fees,including Data Analytics(Claims Integration),Verified Form Processing(PCP),will be invoiced monthly in
arrears based on the total number of reports delivered or forms completed during the month.
The Parties have caused their duly authorized pprresentatives to execute this Agreement as of the dates set forth below.
CLIENT: J [/ / _ VIRGIN PULSE,INC.
uSigned by:
By(Signature): Z �� By(Signature): rZ� "
DCIFCE2159E44DA...
Name(Printed): Name(Printed): Kim Stephan
Title: vk►1lAJ Title: General Counsel
Date: l�ZtP ij Date: 12/18/2019
UAPPROVED:AS RM AMND LEGALITY: DocuSigned by:
ESin,.on,om Bolote z
886F139814614BA...
lty Atta>n Assistant General Counsel
Agreement Between City of Fort Worth
and Virgin Pulse,Inc.—Schedule C Page 22 of 40
DocuSign Envelope ID:5BB04FED-30C7-42E4-B9D3-8AF4FDBCD37F
APPENDIX A: SCOPE OF WORK/PRODUCT DESCRIPTION -
VIRGIN PULSE ENGAGE
Virgin Pulse Engage is a total employee wellbeing solution that drives sustainable,long-term behavior change,increases productivity and
strengthens workforce cultures by providing daily engagement tools,personalized program recommendations,targeted communications
and daily habit-building activities.The integrated platform drives higher participation across all your HR programs and benefits. Engage is
delivered through a web and mobile(iOS and Android)platform with success services for implementation,ongoing client success,member
engagement and member support.The product description below may be updated from time to time to reflect feature changes.
PRODUCT DESCRIPTION - VIRGIN PULSE ENGAGE
PLATFORM
Virgin Pulse Engage is a total employee wellbeing solution that drives sustainable,long-term behavior change,increases productivity and
strengthens workforce cultures by providing daily engagement tools,personalized program recommendations,targeted communications
and daily habit-building activities.The integrated platform drives higher participation across all your HR programs and benefits.Engage is
delivered through a web and mobile(iOS and Android)platform with success services for implementation,ongoing client success,member
engagement and member support.The product description below may be updated from time to time to reflect feature changes.
STANDARD PRODUCT CAPABILITIES
Branding,Theming&Content Organization
Client may customize program elements to reflect their culture and brand,including:
• Create a vanity URL for member access to the web platform
• Add a corporate/wellness logo to the program website,mobile app and emails
• Customize website brand colors(e.g.,call to action buttons,game progress bar,highlights)
• Add a branded cover photo
• Rename and reorganize wellbeing pillar and topic areas through the Client Admin Portal to reflect your
wellbeing vision and branded labels
• Create custom daily cards and healthy habits
• Create calendar events
Personalization Engine
Targeted programming and content delivered in an automated fashion to members based on their interests,
health risks,&demographics to ensure a personalized experience.
Incentive Management Framework
Incentive structures are configured to your requirements.Reward options can be outcomes-based,task-based,
and/or points-based designs.As members engage in healthy behaviors and participate in differing activities,they
have the opportunity to earn rewards,i.e.cash,healthcare contributions,local incentives,or store credits.
Incentives can be segmented by employee group,i.e.employee vs spouse,US vs.International.Additionally,the
incentive management can be facilitated through the VP platform and/or VP can provide reporting to you to
administer the incentive.
Member rewards will be configured based on client requirements,options include:
• Employer-Sponsored Rewards—reward members with a variety of reward options including healthcare
contributions,local incentives,cash,gift cards,etc.May be awarded based on program achievements and
actions or via periodic data file transfers from client or client's 3rd party partners.Data files must be
transmitted in the required Virgin Pulse file format.
• Virgin PulseCash—members may earn PulseCash currency redeemable for rewards in the Virgin Pulse Store
(US and Canada),or for gift cards and charitable contributions
• Subsidized Tracking Devices—members may redeem employer-subsidized discount codes in the Virgin Pulse
Store(US,Canada,EU)for popular consumer tracking devices J
Agreement Between City of Fort Worth
and Virgin Pulse,Inc.—Schedule C Page 23 of 40
DocuSign Envelope ID:5BB04FED-30C7-42E4-B9D3-8AF4FDBCD37F
• Program Vouchers—reward any healthy activity or behavior via paper vouchers that are redeemable
through the program for points.Only available with the levels game.
Integration Framework
Client may integrate specific benefits and programming made available to their population.Configuration of
available programs determined by client.
Language Options
The platform and mobile app are available in the following languages:US English,UK English,Chinese
(Simplified),Chinese(Traditional),Dutch,French(European),French(Canadian),German,Italian,Japanese,
Korean,Malay,Polish,Portuguese(Brazilian),Russian,Spanish(Latin American),Spanish(European),Swedish,
Thai,Vietnamese.
Healthy Habit Trackers
Members may self-track wellness behaviors in key wellbeing areas:activity,nutrition,learning,sleep,community,
relationships,stress,productivity,financial wellbeing.
Goal Setting
A personalized goal setting path allows members to target specific,personal wellbeing improvements.
Daily Health Tips
Members receive personalized daily wellbeing content(daily cards)based on their individual interests.
Virgin Pulse Digital Coaching
.. Members have access to online digital coaching on lifestyle and health condition topics that help members stress
less,move more,eat better,cut back on alcohol,quit smoking,manage diabetes,and improve financial wellbeing
and musculoskeletal health.
Sleep and Nutrition Guides and Resources
Personalized plans that provides practical guidance and a framework to adopt healthy habits with tracking tools,
resources and tips,&reminders.
Challenges
Corporate and Peer competitions that drive step increases and/or healthy habit development.Also includes
promotions and configuration options.
Social Connections
Members can connect with colleagues,leverage a leaderboard to show activity among friends and join groups
based on interests.Additionally,members can invite up to 10 Friends&Family to participate in a limited
experience.
Health Assessment
Virgin Pulse's assessment tool helps members become aware of their health risks and enables personalized
recommendations.Health Assessment includes health and lifestyle questionnaire and a personal score which
assesses participant across multiple areas of wellbeing.
Surveys
Build and deploy employee surveys to members via the Virgin Pulse platform:
• Clients create and publish surveys and access survey results via the Client Admin Portal
• Members complete surveys/polls/quizzes directly through the Virgin Pulse platform
• Survey types include quick(1-2 questions),eNPS and custom(unlimited questions)surveys
• Question types include polls,quizzes,multiple choice,rating scale,mood and free text
• Surveys may be deployed to members organization-wide or to specific org hierarchy segments
i . . •-
Challenge Types
• Destination Challenges—themed,team-based step challenges traversing destinations virtually and
unlocking engaging content at challenge milestones,deployable company-wide,includes Destination
Challenge Theme Library,chat,leaderboards,automated communications,and configurable team sizeand
start/end dates
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• Basic Challenges—team-based challenges in which members compete in simple,themed step competitions, 1
deployable company-wide or to population segments(business unit,location),includes Basic Challenge
Theme Library,chat,leaderboards,automated communications,and configurable team size and start/end
dates
• Monthly Promoted Healthy Habit Challenges—clients may run week-longcompany-wide healthy habit
challenges.Choose from Virgin Pulse's calendar of challenges or create customized challenges.
• Individual Challenges—members may challenge friends to compete in week-long Healthy Habit Challenges;
one-day,weekend or work week Personal Step Challenges;and an ongoing 7-day Friends Leaderboard step
challenge
• Spotlight challenges(targeted availability Q1 2020).Non-step challenge focused on habits in any wellbeing
area(e.g.,stress and resilience,financial wellbeing,healthy eating,and more).
Challenge Administration
Client-Administered Challenges—client administrators and champions with appropriate permissions may use a
self-service administrative tool to deploy unlimited Destination,Basic and Healthy Habit challenges.Choose from I
the Virgin Pulse Challenge Theme Library or create your own custom theme(client supplies custom content and
images),and configure challenge settings(start/end dates,etc.)
Virgin Pulse-Administered Challenges
Virgin Pulse will create one(1)custom Basic or Destination challenge per year for clients,as requested.
Client supplies custom content and images.
• Virgin Pulse will configure up to two(2)Basic or Destination challenges from the Challenge Theme Library
per year for clients,as requested.For Destination challenges,client has option to supply custom destination
content and images for up two(2)of the challenge locations.
Friends
Members may connect with members inside your company to participate in challenges and compare activities
and may invite up to 10 people outside your company to be friends.Friends outside the company have access to
a generic experience without rewards.
Groups
Members may join and create groups based on interests
Champion Training,Communications and Tools
Includes Champion recruitment campaigns,launch training,ongoing engagement emails and webinars to keep
Champions informed and engaged throughout the program,as well as tools and tips for Champions to use to
motivate employees to join the program and to engage members to participate throughout the year.
Client Programs/Partners
Integrate client-specific programs via link or single sign-on(additional professional service fee applies)and
promote via program cards,programs page and communications campaigns(see Member Communications
section).Clients may reward members for program achievements and actions via periodic data file transfers from
client or client's 31d party partners.Data files must be transmitted in the required Virgin Pulse file format.
Virgin Pulse Certified Partners
Integrate Virgin Pulse certified partners to create a seamless member experience,including daily content and
tools,incentives,automated communications and communications campaigns(see Member Communications
section),healthy habit tracking,and built-in reports showing member views,clicks and earned rewards
Virgin Pulse App&Device Partners
Integrated Virgin Pulse app and device partners create a seamless member experience including data sharing
(e.g.,steps,active minutes,calories consumed,etc.),incentives,and integrated reporting
Consumer Health Trackers
Members may connect 50+popular mobile health apps,wearables and health tracking devices to the Virgin Pulse
program to track validated health metrics
Personalization Engine
A flexible recommendation system that allows clients to create a personalized benefit experience by targeting
programs to members based on criteria such as eligibility,demographics,health risks,readiness to change and
wellbeing interests
Targeted Promotion&Communications
Drive program awareness and utilization by promoting recommended programs via automated web(e.g.,
program and calendar cards,programs page,calendar),mobile(e.g.,program and calendar cards,programs page,
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calendar)and communication campaigns with options for email,site pop-up,mobile in-app message and mobile
__push notifications,and offline communications(see Member Communications section for details).
Programs Page
List unlimited programs and resources in a program directory with personalized recommendations and ability to
host PDFs with additional program info for members
Events&Community Calendar
Promote events via calendar cards and a monthly calendar targeted to specific business units,locations,or
company-wide
Reporting Services
Bi-weekly automated aggregate standard reports:Eligible Employees,Member Activation,Billable Cash Earned,
Non-Billable Cash Earned,Devices Purchase(if applicable),Member Demographics.Shows individual earning for
each enrolled member.
Off-Platform Incentive Report;If needed,Off-Platform Incentive Report will be delivered as frequently as
monthly.
Migration Data Management
As a migrating client Virgin Pulse will make best efforts to re-establish current data exchanges both incoming,
including eligibility and established in-coming files(including plug-ins),and outbound including incentive and data
exchanges as Virgin Pulse systems and capabilities allow.It's understood that some system capabilities and
limitations may require changes to these files which will be identified in the migration process.
Requests for additional data shares beyond what's currently established for client will have additional costs and
can be quoted upon request.
Eligibility File Processing
Processing of eligibility files submitted by client in Virgin Pulse standard file format
VIRGIN PULSE LIVE SERVICES
Live Coaching Total Population Health
Effective Beginning 1/1/2021
Live,telephonic 1:1 coaching.
Coaches will proactively reach out to all members-any member can participate.
Members are matched to coach via a robust referral process based on member goals and preferences.
Coaching is based on what's most meaningful to the member across all lifestyle topics and 22 conditions.Also
Virgin Pulse Live includes tobacco cessation coaching.
Live Coaching Lifestyle Management
Effective 1/1/2020—12/31/2020
Live,telephonic 1:1 coaching.
Coaches will proactively reach out to all members-any member can participate.
Members will work with a lifestyle management coach to address goals like preventative care compliance,
health literacy,and lifestyle improvement.
ADDITIONAL SCREENING SERVICES
Virgin Pulse Virgin Pulse offers Physician/PCS form services including:
Physician/PCP • PCP form is downloadable from the member's secure portal and will be pre-populated with an internal
Forms member ID that facilitates processing
• Form setup including client logo and light customization is typically 30 days;turnaround time for
processing is 5 business days Form is submitted to Virgin Pulse Member Services via fax
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ADMINISTRATIVE RESOURCES
Admin Portal - -- ---- -- -- ---- �
Program administrators can use web-based management tools to manage and segment components of their
Virgin Pulse program including calendar events to promote events broadly or to specific locations.There is
Admin Portal also the ability to configure wellbeing pillars and topics.Administrators can create daily cards and healthy
habits for their employees.Lastly,this tool may be used to deploy unlimited Destination,Basic and Healthy
Habit challenges.Choose from the Virgin Pulse Challenge Theme Library or create your own custom theme
(client supplies_custom content and images),and configure challenge settings(start/end dates,etc.)
Self-Service Ticketing Tool
Ticketing Tool Support for feature configuration requests,custom content and member issues via a self-service ticketing
tool.
On Demand Reporting
Program administrators will have 24/7 access to an on-demand analytics dashboard.Aggregate program
data is refreshed daily and includes 100+metrics viewable in a variety of charts,graphs,and tables,revealing
outcomes and trends across enrollment,engagement,participation,wellbeing behaviors and interest areas,
biometrics,health risk assessments,and external or third-party programs.Features include ability to filter by
location and business unit,ability to export for sharing with stakeholders,alerts/KPIs,custom dashboards,
and in-platform chat.
Business Review
Deep dive client reviews led by your client success manager.Reviews include trends over time in enrollment,
engagement,and activity,and device usage broken down by several demographic and location/business unit
segments.
COMMUNICATIONS
- -------- ---- --------------- ---------------
Launch Communications
Virgin Pulse administered activation campaign including emails sent to eligible employees,posters,digital
displays,print-ready postcard and program info sheet(client assumes any printing,distribution costs).These
deliverables can be configured to include client logo,program launch date,and specific program reward
details.
Ongoing Engagement Campaigns
Automated,system-generated emails sent by Virgin Pulse to enrolled employees to drive program
participation;these emails are distributed based on the individual member's interactions with the platform
Standard Member and can include the following:
Communications • Enrollment Reminders
• Onboarding Emails
• Health Assessment Reminders
• Company Challenges
• Healthy Habit Challenges
• Personal Challenges
• Administrative Emails
Platform Notifications—client may communicate timely notifications to members via platform notification
feature,including ability to segment notifications by client sponsor,company,and business unit
The Communications Service Credit is annual and expires at the end of each program year.Unused
credit cannot be carried over each year.It cannot be applied to non-communications related services
(e.g.,reporting).It cannot be applied to hard costs like printing of materials or postage for shipping.
Custom Custom Communications are billed at$150/hour.
Communications
1ervIce Credit Applicable examples include:
• Modification of Catalog Email
• Multi-channel Custom Comms Campaign
• New Custom Email
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• Site Pop-ups
• In-app messages/Mobile Push Notifications
• Posters/Digital Displays
• Program Info Sheet(2 sided)
• Print-Ready Post Card
• Content for Custom Challenges,Healthy Habits,and Daily Cards
• Language Translations
• Custom Video Work(travel expenses billed separately)
MEMBER SERVICES SUPPORT
Members may access a knowledgebase of helpful program information and problem resolutions via the
Support section of the program site or they may submit questions via the Support form
Provides member-level support after launch via phone(888-671-9395)and email(supportPvireinpul,
from 8am-9pm EST,Monday-Friday;and chat 2am-9pm EST,Monday-Friday.
CLIENT SUCCESS SERVICES
A client success manager will be responsible for proactive program management and client outreach to
optimize program performance.Services will include:
• Bi-weekly or monthly program strategy calls with client success manager
• Quarterly program reviews with focus on mutually agreed upon KPI's
Client Success • Comprehensive annual planning process
Sulppoft . Bi-annual review of Virgin Pulse Product Roadmap
• Access to Client Service Portal,a self-service ticketing tool where clients can request feature
configuration changes,custom content and support on member issues
• Monthly newsletter including new feature announcements and engagement promotion updates
• Three passes to the annual Virgin Pulse Thrive conference
IMPLEMENTATION SERVICES
All clients have a designated Implementation Project Manager who is responsible for facilitating and
coordinating execution of program launch.Services include:
• Designated Implementation Project Manager
• Scheduled implementation meetings with client and any 3rd party vendors
1. • Platform design consulting&forecasting
• Facilitation of IT requirements review and validation
• Setup,mapping,and testing of initial eligibility file and ongoing eligibility file process
• Configuration and QA of Virgin Pulse platform and client's program design
• Setup of applicable reward redemption options and ecommerce store
• Coordination,setup and testing of file integrations with client's 3rd partyvendors
• Coordination of communications strategy;delivery of Launch Comms&Champions pre-launch[if
applicable]
• Configuration of initial corporate challenge
• Coordination of device fulfillment&logistics if applicable
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OPTIONAL PROFESSIONAL SERVICES (ADDITIONAL FEES MAYAPPLY)
■ SAML 2.0 SSO implementation from Virgin Pulse platform to client's third party partner for authentication
On purposes(passing unique member ID and company identifier in token).
Custom Reporting Development of custom reporting to client specifications
Custom Data Development of data integrations with 3'd parties as requested by client.
Integration 7
Verifled Form Includes verification of provider signature/stamp and triggering of associated reward for single activity,
Processing multiple activities,or PCP/biometrics intake.No set up fee will be charged.Fees to process each PCP
(Physician Screening Form)are defined in the pricing exhibit.
Online Attestation Development of online attestation form prefilled with member name including up to 3 client-defined data
Form fields and customizable attestation language.File attachment upload optional.No validation available.No
additional fees for Attestation Forms utilized for COFW Healthy Events or Preventive Care Exam
submission.
OPTIONAL PARTNER INTEGRATIONS
Through our partner,FinFit,offer a variety of educational resources and tools to assist via any
'Financial Wellneqs integrated experience.Includes financial assessments,interactive education courses and tracking
tools for goal attainment. — —
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APPENDIX b: VIRGIN PULSE INCA ERMS & CONDITIONS
1.DEFINITIONS.
Certain capitalized terms,not otherwise defined on the Order,have the meanings set forth in this Section 1.
1.1"Addendum"shall mean any addendum to this Agreement,and may include,without limitation,Provider's standard Statement of Work
("SOW").
1.2 "Administrative Vendor(s)"shall mean any third-party vendors used by Provider to operate and support the Application Services,
Software and Virgin Pulse Program for Provider's entire book of business.
1.3'Application Services"shall mean the services and Software described in Appendix A and Provider content provided by Provider by means
of access to certain content and use of the features and functionality of software applications available and accessible within the Provider
web sites(the'Application"or"Platform").
1.4"Authorized Partner(s)"shall mean any of the third-party partners Provider can refer Client to for the provision of additional services to
be integrated and expand the Virgin Pulse Program.Client shall contract with and be invoiced by such Authorized Partners directly.
1.5"Blocked Person"shall mean any individuals,entities or organizations subject to sanction by the US Department of Commerce,the US
Department of State,the US Department of the Treasury or any other agency of the US government(a consolidated list of such persons being
available at https://www.export.gov/csl-search),the United Nations,the European Union or the United Kingdom.
1.6 "Certified Partner(s)"shall mean any of the third-party strategic partners Provider can offer directly to Client for the provision of
additional services to be integrated and expand the Virgin Pulse Program.
1.7"Client Brand"shall mean any one or more of the trademarks,service marks,trade names,domain names,logos,business and product
names,slogans,and registrations and applications for registration thereof owned by Client as of the Effective Date.
1.8"Client Data"shall mean the data,media and content provided by Client for use with the Application Services that are accessible through
the Application Services.
1.9"Confidential Information"shall have the meaning set forth in the non-disclosure agreement entered into by the Parties,or in the absence
of such a non-disclosure agreement will mean all written or oral information,disclosed by either Party to the other,related to the corporate
affairs of either Party or a third party that has been identified as confidential orthat by the nature of the circumstances surrounding disclosure
ought reasonably to be treated as confidential.
1.10"Connected Partner(s)"shall mean any of Client's third-party vendors,with whom Client has a direct relationship,that Client requests
be integrated or connected,as applicable in the context of the services offered by such Connected Partners,to the Virgin Pulse Program.
1.11"Documentation"shall mean documentation related to Client's access to the Software and use of the Application Services delivered by
Provider to Client,as updated by Provider from time to time.
1.12"Effective Date"shall mean the last date on the signature block on the Order Form.
1.13"Eligible"or"Eligibles"shall mean Client employees,employee beneficiaries,and retirees and/or spouses of Client(when applicable),
who are eligible to enroll in the Virgin Pulse Program.
1.14"Embargoed Jurisdiction"shall mean those countries or jurisdictions subject to embargo by the United States, including the Crimea
region,Cuba,Iran,North Korea and Syria.
1.15"Initial Order Start Date"shall mean the anticipated date on which Provider will launch or otherwise make the Application Services and
the Pulse Program available to the participating Members,as designated on the Order Form.
1.16"Member"shall mean an authorized Eligible enrolled in the Virgin Pulse Program having access to the Application Services, provided
that persons under contract with Client may not be Members unless the same have entered into a binding agreement to maintain the
confidentiality of the Access Protocols and all Provider Confidential Information,for example, by agreeing to the Membership Agreement
through enrollment in the Virgin Pulse Program accessible through the Application Services. The term "Guest"shall mean those persons
invited by such Members to participate in a more limited version of the Virgin Pulse Program,and Client shall have no responsibility or liability
with regard to Guests,any services or products provided to Guests,or any activities of Guests.
1.17"Member Data"shall mean any information entered by Members into the Application Services,or information for which Member has
provided its consent to be shared.By way of example,if a Member consents to the provision by a Biometrics provider of its data to Provider,
such data shall be considered"Member Data"under the terms of this Agreement.
1.18 "Member Policies"shall mean the Virgin Pulse Membership Agreement, Privacy Policy and any additional legal notices provided by
Provider during enrollment,and as updated from time to time.
1.19"Provider"shall mean Virgin Pulse,Inc.and its predecessors and successors in interest.
1.20"Software"shall mean the object code version of the proprietary computer software whose use is contemplated by the Application
Services,including but not limited to the VPSync application,and any subsequent revisions or modifications thereto which are furnished to
Client by Provider.The term Software does not include any proprietary software of a Third Party.
1.21"Subscription Services Fees"shall mean those fees payable per Eligible per year for access to the Virgin Pulse Program.
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1.22"US Export Controls and Trade Sanctions"shall mean all laws,regulations and orders of the United States relating to export controls
and trade sanctions,including but not limited to the Export Control Reform Act of 2018,the Trading with the Enemy Act(50 U.S.C.App.1 et
seq.),the International Emergency Economic Powers Act(50 U.S.C.§§1701-1707),and any regulations or orders issued pursuant thereto,
including but not limited to the Export Administration Regulations (15 C.F.R. Parts 730-774) and the economic sanctions and embargoes
programs administered by the U.S.Treasury Department's Office of Foreign Assets Control(31 C.F.R.Part 501 etseq.).
1.23 "Virgin Pulse Program" shall mean a proprietary, interactive health and fitness program, including the Application, which provides
Eligibles with incentives for increased activity and healthy behaviors; as applicable, interactive challenges to improve the Members
engagement;and a combination of activityand biometric tracking devices,along with a personalized online program portal,to help Members
monitor their daily activity and track measurable health outcomes.
2.ACCESS,USE AND MEMBERS.
2.1 Provision of Access for Member.Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Client a
non-exclusive, non-transferable, (a)object-code only license to use the Software,and(b)right to permit access to the Application Services
for the number of Members specified on the Order Form,for which you have paid the applicable fees solely in accordance with the terms
and conditions of this Agreement and the Membership Agreement.On or as soon as reasonably practicable after the Effective Date,Provider
shall provide to Client the necessary passwords,security protocols and policies and network links or connections(the"Access Protocols")to
allow Client to access the Application Services. Provider shall also provide Client the Documentation to be used by Client in accessing and
using the Application Service.
2.2 Usage Restrictions. Client will not(a)copy or duplicate the Application or Software; (b) decompile, disassemble, reverse engineer or
otherwise attempt to obtain or perceive the source code from which any software component of the Application Services or Software is
compiled or interpreted;(c)modify the Application Services or Software or the Documentation,or create any derivative product from any of
the foregoing,except with the prior written consent of Provider;or(d) assign, sublicense, sell, resell, lease, rent or otherwise transfer or
convey,or pledge as security or otherwise encumber,Client's rights under Sections 2.1 or 2.2.Client will ensure that its use of the Application
Services and the Documentation and all Client.Data complies with all applicable laws,statutes,regulations or rules.Client shall notify Provider
immediately of any unauthorized use of any password or account or any other known or suspected breach of security.
2.3 US Export Controls and Trade Sanctions Compliance.Client will not request access to the Application Services for any Eligibles or request
integrations with any Connected"Partners who would be prohibited from receiving goods or services from the Provider pursuant to US Export
Controls and Trade Sanctions,including but not limited to Blocked Persons or persons who are located in Embargoed Jurisdictions.Provider
shall be under no obligation to provide such persons with access to the Application Services.
2.4 Retained Rights;Ownership.
(a) Subject to the rights granted in this Agreement,Client retains all right,title and interest in and to the Client Brand and Client Data,and
Provider acknowledges that it neither owns nor acquires any additional rights in and to the Client Brand or Client Data not expressly granted
by this Agreement.Client is solely responsible for all Client Data.Provider further acknowledges that Client retains the right to use the Client
Brand and Client Data for any purpose in Client's sole discretion.Subject to the foregoing,Client hereby grants to Provider a non-exclusive,
non-transferable right and license to use the Client Brand and Client Data during the Term for the limited purposes of performing Provider's
obligations under this Agreement.
(b) Subject to the rights granted in this Agreement,Provider retains all right,title and interest in and to the Application Services,Software,
and the Documentation,and Client acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly
granted by this Agreement.Client further acknowledges that Provider retains the right to use the foregoing for any purpose in Provider's sole
discretion.
3.PROVIDER OBLIGATIONS.
3.1 Implementation Services.Client understands that,before access to the Application Services can be provided to Client,Client's systems
may require configuration,and will in any case require the performance of various services to prepare Client's systems for such purposes,
and that Provider's systems may also require preparation in order to configure and prepare the Application for use under the terms of the
Agreement as contemplated hereunder.Such services are included in the Implementation Services Package.
3.2 Professional Services. Client acknowledges that in the event that Client desires that Provider perform additional professional services,
the Parties will negotiate an appropriate"Work Statement"setting forth a plan pursuant to an executed SOW.Notwithstanding the foregoing,
Client acknowledges that Provider will have no obligation to perform any services under SOW unless and until engaged to perform such
services in an Addendum to this Agreement.
3.3 Client Success Manager and Technical Support.Provider will make available to Client a Client Success Manager who will oversee services
related to the Application Services.Provider will provide monthly reports to Client specifying the number of Members and as requested,to
the extent permitted by applicable law and the Member Policies, each Member's level of attainment. Provider provides certain support
services as part of the Application Services.However,Client may request for Providerto provide additional technical support services resulting
in additional professional services related to Client's use of the Application Services.Provider agrees to provide such professional services as
agreed by the Parties; provided the Client has also executed the applicable SOW. Until the Client has ordered technical support, Provider
shall only provide the limited support it normally provides to its customers generally as part of the Application Services.
3.4 Claims for Incentives. Provider will make an initial determination of whether Members have earned and are entitled to incentives under
wellness programs administered as part of the Application Services. Provider's role in administering claims for incentives is purely ministerial,
and performed within a framework of policies,interpretations,rules,practices and procedures made or adopted by Client.Provider will only
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have authority to construe the provisions of the wellness program approved by Client and determine whether a claim for incentives is eligible
to be granted in accordance with the terms of the Virgin Pulse Program and this Agreement. Upon determination on request of a Member
that the Member has not earned or is not entitled to incentive under a wellness program,Provider will provide a claims denial notice in the
form and manner directed by Client. If and to the extent that any wellness program made available by Provider is part of a group health plan,
Client shall administer any appeal process and retains ultimate authority,discretion and responsibility for the group healthplan.
3.5 Content Providers. Provider may include information, data,subject matter,content and substance within its Products provided by or
delivered through independent sources(collectively, "Content Providers"). Provider shall make commercially reasonable efforts to ensure
that such providers leverage data sources,decision trees,patient instructions,and other information developed by credible sources.
3.6 Provider Status. In providing Application Services under this Agreement,Client acknowledges and agrees that neither Provider nor any
independent contractors performing Services on Provider's behalf are acting as a fiduciary of any employee welfare benefit plan,and neither
Client nor Client's welfare benefit plan(s)shall name Provider as a plan fiduciary. Provider does not have and shall not have any power to
make any decisions as to plan benefits,policies,interpretations,practices or procedures. Client acknowledges and agrees that Provider does
not have nor exercise any discretionary authority or control respecting management or administration of Client's employee welfare benefit
plans nor the funding or disposition of assets under such plan,such authority and control being retained by Client.
3.7Additional Services.The Parties acknowledge and agree that Provider may provide additional services, including those set forth on the
Order Form. Unless otherwise agreed pursuant to a SOW executed by the Parties, Provider shall have no obligation to provide any such
services,including training,consulting,or customization support with respect to the Virgin Pulse Program.Certain services available through
Provider may be subject to additional terms other than those set forth in this Agreement.
3.8 Portable Devices.Provider will provide portable monitoring devices(each a"Portable Device"),for a specified fee as listed in the Order
Form or as may be updated by Provider in the Membership Agreement,to each Member to track the daily activity of such Members.All
obligations with respect to delivery and use of the Portable Devices shall be subject to the Membership Agreement.The Parties acknowledge
and agree that Provider may charge additional fees for the deployment of such Portable Devices which price lists may be modified from time
to time in Provider's sole discretion.Provider shall not be required to provide a Portable Device to any Eligible or other person in violation of
US Export Controls or Trade Sanctions,including but not limited to persons who are Blocked Persons or who are located in an Embargoed
Jurisdiction.
3.9 Rights with Respect to Errors or Unauthorized Use.The Parties acknowledge and agree that Provider,in the exercise of Providers sole
discretion,shall be permitted to adjust,remove,or otherwise alter rewards accumulated by Members in error or in a manner that violates
the Membership Agreement or have otherwise been accumulated in a fraudulent or dishonest manner.
4.CLIENT OBLIGATIONS.
4.1 Member Access to Services.Subject to the terms and conditions herein,Client may permit the Members to access and use the features
and functions of the Application Service only through the Access Protocols. Client shall be responsible for screening its Eligibles and, as
applicable,Connected Partners to ensure they are not Blocked Persons nor are they located in any EmbargoedJurisdictions.
4.2 Client Assistance.Client shall make available in a timely manner at no charge to Provider all content,graphic files,Client Data,Client
Brand information or other information and resources of Client required by Provider for the performance of its obligations under this
Agreement.Client shall be responsible for,and assumes the risk of,any problems resulting from,the content,accuracy,completeness and
consistency of all such content,materials and information supplied by Client.Client shall also be solely responsible,at its own expense,for
acquiring,installing and maintaining all connectivity equipment,hardware,software and other equipment as may be necessary for it and its
Members to connect to,access,and use the Application Services.
4.3 Provision of Data.Promptly after the Effective Date and on a monthly basis thereafter,Client shall provide Provider,consistent with state
privacy laws,with accurate information including the number and names of Eligibles,contact information for such Eligibles such as an email
address,and an initial eligibility file thirty(30)days prior to the Initial Order Start Date that discloses the Eligibles and includes at least the
following information:the Eligibles'last name,first name,date of birth,gender,unique employee identifying number,if applicable,and any
other information necessary to enable Provider to administer the Virgin Pulse Program and to provide the Application Services required by
this Agreement. Provider, under certain limited circumstances, may be required to share this information for the provision of biometric
services to fulfill its obligations under this Agreement or any additional Statement of Work. Provider may be further required to share this
information to Authorized Partners,Connected Partners and Certified Partners to fulfil its obligations under this Agreement or any additional
Statements of Work.This information and any Eligible additions and terminations shall be kept current on at least a monthly basis and,unless
otherwise agreed upon by the Parties,shall be provided by Client to Provider by the fifteenth(15)day of each month during the Term.Client
shall be responsible for any errors with respect to the information provided, including any failure to report employee terminations, or
termination of an Eligible from participation in the Virgin Pulse Program.The Parties acknowledge and agree that such information set forth
above shall be deemed Client Data and shall be treated as Client's confidential information under this Agreement.
4.4 Client Data. Client shall be responsible for all changes to and/or deletions of Client Data and the security of all passwords and other
Access Protocols required in order to access the Application Services.Client hereby represents and warrants that it owns or otherwise has
sufficient right to grant Provider access to and use the Client Data in accordance with the terms of this Agreement. Client will be solely
responsible for the accuracy and completeness of the Client Data.Client acknowledges and agrees that Provider's obligation to maintain any
Client Data obtained in the course of performance of the Application Services shall not extend beyond the Term of thisAgreement.
4.5 Member Data. Members will have access solely to their individual Member Data and such data will be protected in accordance with
applicable laws and the terms of the Member Policies.
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4.6 Browser Requirements.Provider will share any applicable information pertinent to Browser Requirements as part of its IT Specifications
Documentation.
4.7 New Versions. Provider shall,within its sole discretion,release new versions of the Virgin Pulse Platform,which the Client,at the sole
discretion of the Provider,must transition to within six(6)months of said release,unless otherwise agreed to in writing by the Parties.
S.FEES AND EXPENSES;PAYMENTS.
5.1 Fees. In consideration for the access rights granted to Client and the services performed by Provider under this Agreement,Client will
pay to Provider,without offset or deduction,all fees as may be determined by reference to the pricing proposal,as described below and as
attached hereto as the Order Form.All fees shall be due and payable within thirty(30)days of the date of Provider's invoice.
a)Subscription Services Fees. Unless otherwise specified on the Order Form,all Subscription Services Fee invoicing shall commence upon
the earlier of(a)Initial Order Start Date,or(b)the date that is one hundred and twenty(120)days following the Effective Date.
b)Implementation Services Fees.Unless otherwise specified on the Order Form,all Implementation Services Fee invoicing shall commence
on the Effective Date.
c)Professional Services Fees shall be due and payable as detailed in the applicable SOW.
5.2 Client Operating Expenses. Client will bear all expenses incurred in performance of its obligations hereunder, including, without
limitation, through use by Client and/or any Member of the Application Services, and/or through provision of support to Members with
respect to such use of the Application Services.
5.3 Taxes.Prices do not include any Sales,use,excise,transaction,or other similar taxes. If such taxes are applicable,Provider will separately
state them on the invoice and Client shall be responsible for payment.Client will make all required payments to Provider free and clear of,
and without reduction for,any withholding taxes.Any such taxes imposed on payments to Provider will be Client's sole responsibility,and
Client will,upon Provider's request,provide Provider with official receipts issued by the appropriate taxing authorities,or such other evidence
as Provider may reasonably request,to establish that such taxes have been paid.Client has no obligation to pay any taxes or fees that are:(i)
based on Provider's (a) federal, state and local income taxes; (b) payroll, employment and self-employment taxes of any kind, and (c)
contributions imposed or required for social security, national insurance, medical insurance, or other applicable laws, rules or regulations
with respect to Provider's performance of this Agreement; (ii)franchise taxes or other taxes based on Provider's corporate existence or
status;(iii)due in whole or in part because of any failure or delay by Provider or its agents to file any return or information required by law,
rule,or regulation;or(iv) retroactive or withholding taxes assessed by a non-United States jurisdiction.Client shall reimburse Provider for
any penalties or interest actually levied upon Provider only if Client's acts or omissions solely caused the interest or penalty to be levied.
Provider shall,upon written request of Client,furnish statements of taxes and assessments for which Client is responsible and Provider has
paid.
5.4 Late Payments;Interest;Payment in Dollars.Any portion of any undisputed amount payable hereunder that is not paid when due will
accrue interest at one and one-half percent(1.5%)per month or the maximum rate permitted by applicable law,whichever is less,from the
due date until paid.All payments to be made under this Agreement shall be made in US dollars.Notwithstanding the foregoing,if Provider
does not receive payment of any sum due to it within thirty(30) days of the invoice, Provider reserves the right to suspend accrual and
redemption of rewards by Members until such time as the default has been cured to Provider's satisfaction.
6.TREATMENT OF CONFIDENTIAL INFORMATION.
6.1 Ownership of Confidential Information.The Parties acknowledge that during the performance of this Agreement,each Party will have
access to certain of the other Party's Confidential Information or Confidential Information of third parties that the disclosing Party is required
to maintain as confidential. Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third
party,as applicable,and will remain the sole property of the disclosing Party or such third party.
6.2 Mutual Confidentiality Obligations.Each Party agrees as follows:(a)to use Confidential Information disclosed by the other Party only for
the purposes described herein;(b)that such Party will not reproduce Confidential Information disclosed by the other Party,and will hold in
confidence and protect such Confidential Information from dissemination to,and use by,any third party; (c)that neither Party will create
any derivative work from Confidential Information disclosed to such Party by the other Party; (d) to restrict access to the Confidential
Information disclosed by the other Party to such of its personnel,agents,and/or consultants,if any,who have a need to have access and who
have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement;and(e)to return
or destroy,pursuant to Section 10.5,all Confidential Information disclosed by the other Party that is in its possession upon termination or
expiration of this Agreement.Notwithstanding the foregoing,Client agrees that Provider may utilize de-identified,aggregated statistical data
regarding Client's use of the Service solely for the purposes of planning future development of the platform and services. Other than for
purposes of providing services to Members under this Agreement(i.e. biometrics screenings or HRA),in no event shall Provider provide to
third parties specific data regarding Client or Client's Members.
6.3 Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 6.1 and 6.2 will not apply to Confidential
Information that(a)is publicly available or in the public domain at the time disclosed;(b)is or becomes publicly available or enters the public
domain through no fault of the recipient;(c)is rightfully communicated to the recipient by persons not bound by confidentiality obligations
with respect thereto; (d) is already in the recipient's possession free of any confidentiality obligations with respect thereto at the time of
disclosure; (e) is independently developed by the recipient; or (f) is approved for release or disclosure by the disclosing Party without
restriction. Notwithstanding the foregoing,each Party may disclose Confidential Information to the limited extent required (x) in order to
comply with the order of a court or other governmental body,or as otherwise necessary to comply with applicable law,provided that the
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Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to
obtain a protective order;or(y)to establish a Party's rights under this Agreement,including to make such court filings as it may be required
to do. Client also acknowledges and agrees that Provider may freely use any comments, ideas and/or error reports provided by Client to
Provider and such comments,ideas and/or error reports shall not be considered proprietary to Client.
7.REPRESENTATIONS AND WARRANTIES.
7.1 Representations;Warranties.Each Party hereby represents and warrants(a)that it is duly organized,validly existing and in good standing
under the laws of its jurisdiction of incorporation or organization; (b) neither it nor its owners are Blocked Persons or are located in an
Embargoed Jurisdiction;(c)that the execution and performance of this Agreement will not conflict with or violate any provision of law having
applicability to either Party(including but not limited to US Export Controls and Trade Sanctions);and(d)that this Agreement,when executed
and delivered,will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its
terms.In addition,Client hereby represents and warrants(x)that,unless required for the operation of the Virgin Pulse Program,it shall not
provide Provider with any individual's social security number,unique national identifier or tax number;and(y)that it shall only use the data
received from Provider in accordance with this Agreement. Client further acknowledge that the wellness program design, inclusive of
incentive structure,is the sole responsibility of the Client.
7.2 Exclusion as Care Provider.The Parties agree that Provider is not a care provider and does not provide medical advice.The products and
services are not, nor are they intended to be, a medical evaluation, medical examination, medical advice, medical consultation, medical
diagnosis or medical treatment.
7.3 Virgin Pulse Health Risk Assessment("HRA')custom questions and Surveys;Warranties and Exclusion of Liability.If applicable,Client
represents and warrants that it will comply with all applicable laws in its use of the Virgin Pulse Surveys and custom questions added to
Client's HRA. Client is solely responsible for the content of each individual survey or custom question. Provider will provide Client with
anonymous and aggregated reports reflecting the data collected through the Virgin Pulse Surveys and HRA.Client shall notify its Members
that any open text contribution may be visible to Client and may allow Client to identify the participating Member.Client acknowledges that
the Virgin Pulse Surveys and HRA service are not designed or intended to be used to elicit racial,medical or genetic information.Client further
affirms that in no event will a Member's choice to participate in the Virgin Pulse Surveys or HRA, or any data collected through the Virgin
Pulse Surveys or HRA, be used to influence or guide the Client's employment decisions. TO THE EXTENT ALLOWED BY APPLICABLE LAW,
CLIENT AGREES TO INDEMNIFY AND HOLD HARMLESS VIRGIN PULSE,ITS EMPLOYEES,OFFICERS,DIRECTORS AND SHAREHOLDERS FROM AND
AGAINST ANY AND ALL CLAIMS OF ANY KIND, INCLUDING REASONABLE ATTORNEYS' FEES,ARISING FROM THE USE OF THE VIRGIN PULSE
SURVEYS, THE CONTENT OF THE SURVEY OR CUSTOM HRA QUESTIONS, AND THE MISUSE OF ANY INFORMATION OR DATA COLLECTED
THROUGH THE VIRGIN PULSE SURVEYS OR HRA.
7.4 Eligibles and Outreach.Client may require Provider to engage in active promotion of the Virgin Pulse Program,including but not limited
to its telephonic and other live coaching services,including via the use of active telephonic or text outreach.Client represents and warrants
that any contact information of Eligibles provided to Providerto conduct such active outreach was collected by Client and provided to Provider
in compliance with applicable laws, including but not limited to the Telephone Consumer Protection Act(TCPA), and that Client properly
notified and obtained consent from Eligibles for Provider's outreach.
8.DISCLAIMERS,EXCLUSIONS AND LIMITATIONS OF LIABILITY.
8.1 Disclaimer.EXCEPT AS EXPRESSLY REPRESENTED OR WARRANTED IN SECTION 7,TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, THE APPLICATION SERVICES, THE DOCUMENTATION, AND ALL SERVICES PERFORMED BY PROVIDER ARE PROVIDED "AS IS," AND
PROVIDER DISCLAIMS ANY AND ALL OTHER PROMISES,REPRESENTATIONS AND WARRANTIES,WHETHER EXPRESS OR IMPLIED,INCLUDING,
BUT NOT LIMITED TO,ANY IMPLIED WARRANTIES OF MERCHANTABILITY,FITNESS FORA PARTICULAR PURPOSE,NON-INFRINGEMENT,QUIET
ENJOYMENT,SYSTEM INTEGRATION AND/OR DATA ACCURACY.PROVIDER DOES NOT WARRANT THAT THE APPLICATION SERVICES OR ANY
OTHER SERVICES PROVIDED BY PROVIDER WILL MEET CLIENT'S REQUIREMENTS OR THAT THE OPERATION OF THE APPLICATION SERVICE
WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. PROVIDER'S SERVICES MAY BE SUBJECT TO
LIMITATIONS,DELAYS,AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.PROVIDER IS
NOT RESPONSIBLE FOR ANY DELAYS,DELIVERY FAILURES,OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.NEITHER PROVIDER,NOR
ITS THIRD-PARTY HOSTING SERVICE OR SOFTWARE PROVIDERS, SHALL HAVE ANY LIABILITY WHATSOEVER FOR THE ACCURACY,
COMPLETENESS,OR TIMELINESS OF THE CLIENT DATA,OR FOR ANY DECISION MADE OR ACTION TAKEN BY CLIENT IN RELIANCE UPON ANY
CLIENT DATA.
8.2 Exclusions of Remedies; Limitation of Liability. IN NO EVENT WILL PROVIDER BE LIABLE TO CLIENT FOR ANY INCIDENTAL, INDIRECT,
SPECIAL,CONSEQUENTIAL OR PUNITIVE DAMAGES,REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING,WITHOUT LIMITATION,LOST
PROFITS,COSTS OF DELAY,ANY FAILURE OF DELIVERY,BUSINESS INTERRUPTION,COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION,
OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF
THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
UNLESS PROHIBITED BY LAW,THE CUMULATIVE LIABILITY OF PROVIDER TO CLIENT FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS
AGREEMENT, INCLUDING,WITHOUT LIMITATION,ANY CAUSE OF ACTION SOUNDING IN CONTRACT,TORT,OR STRICT LIABILITY,WILL NOT
EXCEED THE FEES PAID TO PROVIDER BY CLIENT DURING THE TWELVE(12)MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE
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CLAIM.THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT
HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
8.3 Essential Basis of the Agreement.Client acknowledges and understands that the disclaimers,exclusions and limitations of liability set
forth in this Section 8 form an essential basis of the agreement between the Parties,that the Parties have relied upon such disclaimers,
exclusions and limitations of liability in negotiating the terms and conditions in this Agreement,and that absent such disclaimers,exclusions
and limitations of liability,the terms and conditions of this Agreement would be substantially different.
9.INDEMNIFICATION.
9.1 General Indemnity of Client—Provider agrees to indemnify,defend and hold harmless Client from and against any and all losses,liabilities,
costs (including reasonable attorneys'fees)or damages resulting from any claim by any third party arising out of or related to (a) death,
personal injury and damage to tangible personal property and/or(b) Provider's willful misconduct or fraud; provided that Client promptly
notifies Provider in writing of the claim,cooperates with Provider,and allows Provider sole authority to control the defense and settlement
of such claim.IN NO EVENT SHALL PROVIDER'S LIABILITY UNDER THIS SECTION 9 EXCEED CAP ON LIABILITY SET FORTH IN SECTION 8.2.THIS
SECTION STATES PROVIDER'S ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INDEMNITY.
9.2 Indemnification of Client—Intellectual Property. Provider agrees to indemnify,defend and hold harmless Client from and against any
and all losses, liabilities, costs (including reasonable attorneys' fees) or damages resulting from any claim by any third party that the
Application Services and/or the Documentation infringes such third party's U.S. patents issued as of the Effective Date, or infringes or
misappropriates,as applicable,such third party's copyrights or trade secret rights under applicable laws of anyjurisdiction within the United
States of America,provided that Client promptly notifies Provider in writing of the claim,cooperates with Provider,and allows Provider sole
authority to control the defense and settlement of such claim.If such a claim is made or appears possible,Client agrees to permit Provider,
at Provider's sole discretion,to enable it to continue to use the Application Service or the Documentation, as applicable, or to modify or
replace any such infringing material to make it non-infringing.If Provider determines that none of these alternatives is reasonably available,
Client shall,upon written request from Provider,cease use of,and,if applicable,return,such materials as are the subject of the infringement
claim.IN NO EVENT SHALL PROVIDER'S LIABILITY UNDER THIS SECTION 9 EXCEED CAP ON LIABILITY SET FORTH IN SECTION 8.2.THIS SECTION
STATES PROVIDER'S ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.
10.TERM AND TERMINATION.
10.1 Term.Please see Section 2 of Schedule A.
10.2 Termination for Breach.Either Party may,at its option,terminate this Agreement in the event of a material breach by the other Party.
Such termination may be affected only through a written notice to the breaching Party,specifically identifying the breach or breaches on
which such notice of termination is based.The breaching Party will have a right to cure such breach or breaches within thirty(30)days of
receipt of such notice, and this Agreement will terminate in the event that such cure is not made within such thirty (30) day period.
Notwithstanding the foregoing, Provider may immediately terminate this Agreement without prior notice or the opportunity to cure if the
Client's material breach results in a violation US Export Controls and Trade Sanctions law.
10.3 Suspension of Access. Provider may suspend access to the Application Services in the event any undisputed amount due under this
Agreement is not received by Provider within thirty(30)days from invoice.
10.4 Termination Upon Bankruptcy or Insolvency.Either Party may,at its option,terminate this Agreement immediately upon written notice
to the other Party, in the event(a)that the other Party becomes insolvent or unable to pay its debts when due;(b)the other Party files a
petition in bankruptcy,reorganization or similar proceeding, or, if filed against,such petition is not removed within ninety(90)days after
such filing;(c)the other Party discontinues it business;or(d)a receiver is appointed or there is an assignment for the benefit of such other
Party's creditors.
10.5 Effect of Termination.Upon any termination of this Agreement:(a)Client will immediately discontinue all use of the Application Service,
the Documentation, and any Provider Confidential Information; (b) Client will delete any Provider Confidential Information from Client's
computer storage or any other media including,but not limited to,online and off-line libraries;(c)Provider will delete any Client Confidential
Information and Client Data from Provider's computer storage or any other media including,but not limited to,online and off-line libraries;
(d)return to Provider or, at Provider's option,destroy,all copies of the Documentation and any Provider Confidential Information then in
Client's possession;and(e)promptly pay to Provider all amounts due and payable hereunder.Notwithstanding the foregoing,Members may
redeem their rewards under the Virgin Pulse Program for a period of thirty(30)days following the termination of this Agreement,provided,
however that this Agreement is not terminated for nonpayment, in which case Members will not be able to redeem their rewards upon
termination.
10.6 Survival.The provisions of Sections 2.4,6,7,8,9,10.5,10.6,and 11 will survive the termination of this Agreement.
11.MISCELLANEOUS.
11.1 Entire Agreement.This Agreement sets forth the entire agreement and understanding between the Parties hereto with respect to the
subject matter hereof and,except as specifically provided herein,supersedes and merges all prior oral and written agreements,discussions
and understandings between the Parties with respect to the subject matter hereof,and neither of the Parties will be bound by any conditions,
inducements or representations other than as expressly provided for herein.
11.2 Independent Contractors. In making and performing this Agreement,Client and Provider act and will act at all times as independent
contractors,and,except as expressly set forth herein,nothing contained in this Agreement will be construed or implied to create an agency,
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partnership or employer and employee relationship between them. Except as expressly set forth herein,at no time will either Party make
commitments or incur any charges or expenses for,or in the name of,the other Party.
11.3 Third Party Providers. Provider and Client acknowledge and agree that various types of third-party providers may be involved in the
provision of Provider's Software or support the Virgin Pulse Program. Provider shall remain liable for the acts and omissions of its
Administrative Vendors and Certified Partners.In the event that Client leverages any Authorized Partners or Connected Partners and requests
that such services be integrated to support the Virgin Pulse Program,Client and Provider acknowledge and agree that Client shall contract
separately with such third-parties for the provision of such service. Provider shall not be held liable for the acts or omissions of Authorized
Partners and Connected Partners,nor will such third-parties'conduct affect any agreed upon performance guarantees between Client and
Provider.
11.4 Notices. All notices required by or relating to this Agreement will be in writing and will be sent by means of certified mail, postage
prepaid,to the Parties at their respective addresses set forth in the Order Form,or addressed to such other address as the receiving Party
may have given by written notice in accordance with this provision. All notices required by or relating to this Agreement may also be
communicated by facsimile and/or other electronic communications provided that the sender receives and retains confirmation of successful
transmittal to the recipient.Such notices will be effective on the date indicated in such confirmation.In the event that either Party delivers
any notice by means of facsimile transmission or other electronic means in accordance with the preceding sentence,such Party will promptly
thereafter send a duplicate of such notice in writing by means of certified mail,postage prepaid,to the receiving Party,addressed as set forth
above or to such other address as the receiving Party may have previously substituted by written notice to the sender.
11.5 Amendments; Modifications, This Agreement may not be amended or modified except in a writing duly executed by authorized
representatives of both Parties.
11.6 Assignment; Delegation. Except in the case of merger or acquisition, neither party shall assign any of its rights or delegate any of its
duties under this Agreement without the express, prior written consent of the other Party, and, absent such consent, any attempted
assignment or delegation will be null,void and of no effect.
11.8 No Third-Party Beneficiaries.The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit
of the Parties,their successors and permitted assigns. Nothing herein,whether express or implied,will confer upon any person or entity,
other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this
Agreement.
11.8 Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be
construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or
unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any other provisions of
this Agreement invalid or unenforceable whatsoever.
11.9 Waiver.No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the Party against whom
enforcement of such waiver is sought.Any such waiver will constitute a waiver only with respect to the specific matter described therein and
will in no way impair the rights of the Party granting such waiver in any other respect or at any other time.Any delay or forbearance by either
Party in exercising any right hereunder will not be deemed a waiver of that right.
11.10 Force Majeure. Except with respect to payment obligations hereunder, if a Party is prevented or delayed in performance of its
obligations hereunder as a result of circumstances beyond such Party's reasonable control, including, by way of example, Internet access
outside of Provider's control, war,terror, riot,fires,floods, epidemics, or failure of public utilities or public transportation systems, such
failure or delay will not be deemed to constitute a material breach of this Agreement,but such obligation will remain in full force and effect,
and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure
or delay,provided that if such Party is prevented or delayed from performing for more than ninety(90)days,the other Party may terminate
this Agreement upon thirty(30)days'written notice.
11.11 Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS,WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF OR TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL
SALE OF GOODS.
11.13 U.S. Government End-Users. Each of the Documentation and the software components that constitute the Application Service is a
"commercial item" as that term is defined at 48 C.F.R. 2.101,consisting of"commercial computer software" and "commercial computer
software documentation" as such terms are used in 48 C.F.R. 12.212.Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through
227.7202-4,all U.S.Government end users acquire the Application Service and the Documentation with only those rights set forth therein.
11.14 Counterparts.This Agreement may be executed in any number of counterparts,each of which when so executed will be deemed to be
an original and all of which when taken together will constitute one Agreement.
11.15 Headings.The headings in this Agreement are inserted merely for the purpose of convenience and will not affect the meaning or
interpretation of this Agreement.
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APPENDIX C: VIRGIN PULSE DATA SECURITY EXHIBIT
1. Scope:Definitions.Provider shall comply with the requirements set forth in this Exhibit.The Agreement relates to Services
whereby Provider collects,accesses,processes,stores,transfers,transmits,uses,discloses or otherwise handles any Client Data
or Member Data.In the event of a conflict or inconsistency between any provision of this Exhibit and the Agreement,the more
stringent requirement shall prevail.Capitalized terms in this Exhibit not herein defined are defined in the Agreement or have the
following meanings:
a. "Agreement"shall mean the agreement between Client and Provider to which this Appendix is attached.
b. "PII"shall mean information(i)that identifies an individual,(ii)with respect to which there is a reasonable basis to
believe the information can be used to identify an individual,or(iii)is considered personally identifiable information by
applicable codes,laws,guidelines,rules or regulations,including,without limitation,industry self-regulation.The term
PH shall also include any"Personal Data"as defined in the General Data Protection Regulation(Regulation(EU)
2016/679).
C. "Provider"shall have the meaning outlined in Provision 1.12 of the Agreement.
d. "Provider Personnel"shall mean each director,officer,manager,employee,representative and each natural person
employed or retained by Virgin Pulse.
e. "Provider Sites"shall mean locations owned or leased by Provider from which it provides services to its Clients.
f. "Security Incident"shall mean any confirmed unauthorized access,disclosure,misappropriation,theft,loss,acquisition,
or use of Client Data or Member Data.
g. "Services'shall mean the services to be provided and performed by Provider pursuant to the Agreement.
h. "Systems"shall mean hardware,software,networks,applications and other equipment that comprise a technical
environment.
2. General.Provider shall maintain all reasonable security measures appropriate to the nature of Client and Member Data,
including,without limitation,electronic,physical,administrative and organizational controls as described in the applicable
Documentation.
3. Privacy and Security Training.Provider shall maintain a comprehensive privacy and data security training program for all
Provider Personnel.Such training program is designed to meet the objectives and requirements of this Exhibit.
4. Provider Access to Client and Member Data.Provider access,by any means or methods,to any Client Data and Member Data
collectively,("Access")is solely for the purpose of and will be limited only to the extent necessary for,performing the Services.
Provider will ensure that Access by Provider Personnel is limited to a need-to-know basis.Provider shall comply with and ensure
that Provider Personnel comply with such protocols.Without limiting the foregoing,Provider shall also comply with the
following:
a. User IDs must not be shared among Provider Personnel and Provider must not utilize any"generic"or default User IDs
or passwords.Any remote access by Provider Personnel(i.e.,from outside a Client Site or Provider Site)that is
otherwise permitted by the Agreement will be implemented in a manner that prohibits the storage of Client Data or
Member Data on the equipment that was utilized for such remote access.Provider shall conduct user access reviews at
least semi-annually.
b. Provider shall at all times maintain the logical separation of electronic records of Client Data and Member Data from(i)
any other data,including Provider data and(ii)the Provider Systems processing,storing,hosting,transporting and/or
transmitting such other data.If hard copies of Client Data are provided or created,Provider shall maintain the physical.
separation of any Client Data within Provider's possession or control.Physical separation of hard copies of Client Data
may be maintained by the use of a locked filing drawer or cabinet that does not contain any other data or information.
C. Provider will include at least one(1)layer of firewall between(i)Provider Systems used for Access or to provide the
Services,and(ii)other networks that Client may permit Provider to connect to or from Provider Sites,if any(including
without limitation,if applicable,the Internet or any third-party network).
d. Provider shall ensure Provider Personnel to cooperate fully in resolving any confirmed unauthorized Access,acquisition
or misuse of Client Data or Member Data that had been in Provider's possession or under its control at the time of the
actual unauthorized Access,acquisition or misuse.
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e. If any Provider Personnel resigns from his or her employment,is terminated,or ceases to perform Services for any
other reason,Provider shall promptly(i)terminate such individual's Access(including by shutting down badge/key cards
and retrieving SecurlD fobs and the like),and(ii)ensure that such individual does not retain any Client Data or Member
Data,in any format.
5. Provider Security Reviews and Audits.On an annual basis,for each of the Provider Sites at which Client Data or Member Data is
stored,Provider will provide to Client a Statement on Standards for Attestation Engagements No.16,Service Organization
Control 2,Type 2("SSAE 16 SOC 2 Type 2")audit as defined by the American Institute of Certified Public Accountants or an audit
made pursuant to any other guidance that supersedes or replaces SSAE 16 SOC 2 Type 2 or comparable,industry standard
independent audit.
6. Logical Access Security Log.Provider shall create,maintain and monitor electronic access security logs for the Provider Systems
and network components from and/or through which Provider or any Provider Personnel has Access or that are used to perform
the Services.
7. Changes Log.To the extent such changes relate to the Services,Provider will create and maintain an electronic log of all changes
to the technical and logical architecture of Provider Sites,the physical and electronic access control systems and the logical and
physical security standards.Provider's change control procedures shall protect the confidentiality,integrity and availability of
Client Data and Member Data.
8. Patch Management and Anti-Virus Malware Software.Provider shall ensure patch management solutions provided by an
industry recognized vendor,and anti-virus malware software with the latest virus definition update,are configured on all
Provider System.Such anti-virus malware software shall include technical controls that provide for automatic updates of the
virus definitions.
9. Payment Card Transactions and Data.To the extent that the Services include the processing of payment card transactions,
Provider shall,at all times during the term of the Agreement,comply with the rules and regulations of the Payment Card
Industry's and the card associations(e.g.,Visa,MasterCard,American Express,Discover,JCB),including,but not limited to,the
data security standards.Without limiting the generality of the foregoing,Provider shall(a)provide data security reports as may
be required by the credit or debit or payment card issuer,(b)pay any fines and penalties in the event Provider fails to comply
with such data security requirements,and(c)fully cooperate with,and provide access to,the payment card issuer or payment
card association to conduct a security review of Provider's policies and procedures.
10. Encryption.Any encryption required under the Agreement,including this Attachment,will be in accordance with Advanced
Encryption Standards(AES),or any successor standards,and no less than 128-bit.
11. Back-Ups.Provider shall utilize a backup procedure for all stored Client Data and Member Data,the backup procedure shall
include the provision of back-ups on a periodic basis that is no less frequent than monthly,and all back-ups will be encrypted to
the same standards provided above in Provision 10 on Encryption.
12. Restrictions on Access.Provider and Provider Personnel shall not Access or display Client Data or Member Data in applications,
reports,data transmissions or other outputs unless required by the Agreement and permissible under applicable laws,required
to provide the Services or needed to meet a legal or regulatory requirement.Provider and Provider Personnel shall not include
Client Data and Member Data in unencrypted emails or files attached to emails that are transmitted unprotected via the Internet.
Provider shall employ a tool,such as data loss prevention software,to monitor and prevent the unprotected transfer of PII.All
electronic data sources containing PH must be encrypted.
13. Retired or Reassigned Equipment.Any equipment,including any Portable Devices or Removable Media,that Provider has retired
or reassigned will be wiped or magnetically wiped pursuant to applicable US Department of Defense standards within two(2)
weeks of the retirement or immediately before reassignment of such equipment.
14. Data Retention and Destruction.Provider shall maintain effective data retention and destruction procedures to ensure records
containing Client Data and Member Data are disposed of in a timely manner that does not compromise the security,
confidentiality or integrity of the information,in accordance with Provider's records retention guidelines and any requirements in
the Agreement.
Agreement Between City of Fort Worth
and Virgin Pulse,Inc.—Schedule C CONFIDENTIAL AND PROPRIETARY Page 38 of 40
DocuSign Envelope ID:5BB04FED-30C7-42E4-B9D3-8AF4FDBCD37F
15. Authentication.Provider shall protect authentication credentials,including by:(a)ensuring that passwords and PINS do not
appear in readable form while the user is typing or entering the password or PIN;and(b)storing passwords and PINs in a one-
way hashed format,protected with salt.Provider shall prevent users from elevating their own privileges within a System without
first re-authenticating as a more privileged user.Where technologically feasible,Provider shall ensure passwords contain at least
eight(8)alpha-numeric characters and at least three(3)of the following criteria:(i)upper case letters,(ii)lower case letters,(iii)
numbers,and(iv)special characters.
16. Security Incident.Provider shall will be responsible for detecting and responding to Security Incidents on Virgin Pulse Systems
impacting or potentially impacting Access,or performance of Services,from and/or through Provider Sites.Upon becoming
aware of a confirmed Security Incident,Provider will report such Security Incident within five(5)days by providing a written
notification the Client General Counsel's.In the event of a Security Incident related to any Client Data or Member Data,(a)
Provider will cooperate with Client to comply with any legal requirement to notify individuals whose PH has been or may have
been compromised as a result of a Security Incident;provided that in no event will Provider serve any notice or otherwise
publicize a Security Incident without the prior written consent of Client,unless required by applicable laws,and(b)upon Client's
request,engage a mutually acceptable,regionally recognized third party to perform or assist with forensic analysis.Provider will
deliver the results of any such analysis to Client including its(or their)general counsel or other responsible attorneys,in
accordance with the confidentiality and notice provisions of the Agreement,marked"CONFIDENTIAL."
Agreement Between City of Fort Worth
and Virgin Pulse,Inc.—Schedule C Page 39 of 40
DocuSign Envelope ID:5BB04FED-30C7-42E4-B9D3-8AF4FDBCD37F
SCHEDULE "D"
YERIEMA110ADY-M—GhIATURE A THOR TY
Execution of this Signature Verification Form ("Form") hereby certifies that the following individuals
have the authority to legally bind Vendor and to execute any agreement, amendment, or change order on
behalf of Vendor. Such binding authority has been granted by proper order, resolution, ordinance, or other
authorization of Vendor. City is fully entitled to rely on the warranty and representation set forth in this
Form in entering into any agreement or amendment with Vendor. Vendor will submit an updated Form
within ten (10) business days if there are any changes to the signatory authority. City is entitled to rely on
any current executed Form until it receives a revised Form that has been properly executed by Vendor.
Name: Kim Stephan
Title: General counsel
DocuSii-gned by:
� �1M14 ` -►7 /Aln
Signature DCIFCE2159E44DA...
Name:
Title:
Signature
Name:
Title:
Signature
Name:
Signature of President/CEO
Other Title:
Date:
Agreement Between City of Fort Worth
and Virgin Pulse,Inc.—Schedule D Page 40 of 40
City of Fort Worth, Texas
Mayor and Council Communication
DATE: 10/15/19 M&C FILE NUMBER: M&C 19-0236
LOG NAME: 13P19-0000017 HEALTH AND WELLNESS SERVICES HR JPB
SUBJECT
Authorize Execution of Contract with Virgin Pulse, Inc.for Health and Wellness Services in an Annual Amount Up to$580,000.00 with a Five-Year
Initial Term and Authorize Three One-Year Renewal Options for the Human Resources Department(ALL COUNCIL DISTRICTS)
RECOMMENDATION:
It is recommended that the City Council authorize the execution of contract with Virgin Pulse, Inc.for Health and Wellness Services in an annual
amount up to$580,000.00 with a five-year initial term and three one-year renewal options for the Human Resources Department.
DISCUSSION:
The Human Resources Department(HRD)approached the Purchasing Division to secure an agreement for health management services and
clinical data analytics capabilities that leverage evidence-based medical standards and innovative technology to help promote health care quality
and reduce costs.The goal is to continue to move the City's Wellness Program toward becoming more outcomes-based and to promote a
physician-centric model. Staff issued a Request for Proposals(RFP)that consisted of detailed scope of services. These services include:
• A Wellness Platform for all employees,and any spouses and retirees on the health insurance(non-Medicare);
• Data analytics with medical and pharmacy claims;
• Physician Biometric Data Collection;
• Tobacco Affidavit or Tobacco Reasonable Alternative Collection;
• Health Risk Assessment with Lab Data Collection to merge;
• Preventive Screening Data Collection;
• Customized Interventions;
• Live Lifestyle Coaching;
• Live Chronic Condition Coaching(beginning year 2);and
• A new Financial Wellness component with FinFit(recommended from Wellness Audit completed in early 2019).
The RFP was advertised in the Fort Worth Star-Telegram every Wednesday starting on July 24,2019 through August 21,2019;six responses
were received.The proposals were thoroughly reviewed by an evaluation team consisting of staff.The evaluation team ranked the proposals
based on pre-defined factors.The evaluation team determined Virgin Pulse, Inc.provides the best overall proposal.
Maximum Annual Not Exceed Amount
Year 1 to 3 Year 4 Year 5
$540,000.00$560,000.00$580,000.00
An administrative change order or increase may be made by the City Manager up to the amount allowed by relevant law and the Fort Worth City
Code and does not require specific City Council approval as long as sufficient funds have been appropriated.
Upon City Council approval and execution of contract,the initial five-year term of these contract shall begin.Contract may be renewed up to three
one-year terms at the City's sole discretion.This action does not require specific City Council approval provided that sufficient funds are
appropriated for the City to meet its obligations during the renewal period. No guarantee was made that a specific amount of these services will be
purchased.
A waiver of the goal for MBE/SBE sub-contracting was requested by the Purchasing Division and approved by the M/WBE Office, in accordance
with the BDE Ordinance, because the purchase of goods or services is from sources where sub-contracting or supplier opportunities are
negligible.
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that upon approval of the above recommendation and award of the contract,funds are available in the
current operating budget,as appropriated,in the Group Health Insurance fund. Prior to any expenditure being incurred,the Human Resources
Department has the responsibility to validate the availability of funds.
Submitted for City Manager's Office by. Kevin Gunn 2015
Originating Business Unit Head: Reginald Zeno 8517
Additional Information Contact: Cynthia Garcia 8525
John Padinjaravila Baby 2279