HomeMy WebLinkAboutContract 47390 CITY SECKTARY
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AGRE EM14ENT FOR PROFESSIONAL SERVICES
BETWEEN THE CITY OF FORT WORTH
AND BENE FITREE ENTERPRISES,LLC
THIS AGREEMENT FOR PROFESSIONAL SERVICES is by and bet,,veen the City of Fort Worth,
Texas, a home rule municipal corporation organized tinder the laws of the State of Texas ("City"), acting
by and through Susan Alanis, its duly authorized Assistant City Manager and Benefirrree Enterprises,
LLC, acting by and through Susan B. Bella, its duly authorized Chief Executive Officer ("Contractor")
(collectively referred to as the "Parties") for communication, enrollment, and data management and
reporting services for retirees, spouses, and surviving Spouses age 65 and over on the City's retiree
medical plan ("services") who are currently enrolled as non-Medicare eligible. In consideration of the
mutual promises and performances set forth below, and other good and valuable consideration, the
sufficienc),and receipt of which the parties acknowledge the parties agree as follows:
I. Term. This Agreement shall be for a term Of fOL11• (4) months and shall commence on approval of
this Agreement (tile "Efficetive Date"), and end on April 30, 2016, unless terminated by either party
in accordance with this Agreement.
2. Scope of Set-vices. Contractor's scope of work is outlined in the Proposal as agreed in Attachment
"A"attached and incorporated herein. Contractor's work shall comply with all HIPAA requirements
as agreed to in Exhibit "B,"Business Associate Agreement,
3, Compensation. Costs shall not exceed Forty-nine Thousand Dollars ($49,000.00) and are payable
Weekly upon Contractors submission of invoice.
/A. Termination.
a.
Termination for Convenience.The City or Contractor may terminate the Agreement upon ten (10)
days written notice to the other pail),with Or Without cause,or
b. Fiscal Funding Limitation. In the event no funds or insufficient funds are appropriated and
budgeted or are otherwise unavailable by any means whatsoever in any fiscal period for payments
due under this Agreement, then the City Will immediately notify Contractor of such occurrence
and this Agreement shall be terminated oil tile last day of the fiscal period for which
appropriations were received Without penalty or expense to the City of any kind whatsoever,
except to the portions of annual payments herein agreed upon for which fluids shall have been
appropriated.
c. In the event that this Agreement is terminated prior to the expiration of the then current term,
Contractor shall, to the extent permissible by applicable ]a-w, provide the City with copies of all
completed or partially completed documents prepared tinder this Agreement at no additional cost
to the City. City shall pay Contractor for services actually rendered up to the effective date of
termination and Contractor shall continue to provide the City with services requested by the City
and in accordance with this Aggeernent tip to the effective date of termination. The City also shall
pay Contractor for services actually performed in accordance herewith prior to such termination,
less Such 1-.)iynients as have been previously made, in accordance with a final statement submitted
by Contractor documenting the performance of such work, CONTRACTOR SHALL NOT BE
ENTITLED TO ANY LOST OR ANTICIPATED PROFITS SHOULD THE CITY
ELECT TO TERMINATE THIS AGREEMENT.
Beneli
5. Indemnification.
CONTRACTOR SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY
LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY
AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED,
TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S),
MALFEASANCE OR INTENTIONAL MISCONDUCT OF CONTRACTOR, ITS OFFICERS,
AGENTS,SERVANTS OR EMPLOYEES.
CONTRACTOR AGREES TO DEFEND, INDEMNIFY, AND HOLD THE CITY, ITS
OFFICERS,AGENTS,SERVANTS,AND EMPLOYEES HARMLESS AGAINST ANYAND ALL
CLAIMS, LAWSUITS, ACTIONS, COSTS, AND EXPENSES OF ANY KIND, INCLUDING,
BUT NOT LIMITED TO, THOSE FOR PROPERTY DAMAGE OR LOSS (INCLUDING
ALLEGED DAMAGE OR LOSS TO OWNER'S BUSINESS AND ANY RESULTING LOST
PROFITS) AND/OR PERSONAL INJURY (INCLUDING DEATH) THAT MAY RELATE TO,
ARISE OUT OF, OR BE OCCASIONED BY(1) CONTRACTOR'S BREACH OFANY OF THE
TERMS OR PROVISIONS OF THIS AGREEMENT OR (H) ANY NEGLIGENT ACT OR
OMISSION OR INTENTIONAL MISCONDUCT OF CONTRACTOR, ITS OFFICERS,
AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS (OTHER THAN THE CITY), OR
SUBCONTRACTORS RELATED TO THE PERFORMANCE OF THIS AGREEMENT,
EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS SECTION SHALL NOT APPLY
TO ANY LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OF THE CITY OR ITS
OFFICERS,AGENTS, EMPLOYEES, OR SEPARATE CONTRACTORS,AND IN THE EVENT
OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH CONTRACTOR AND CITY,
RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. NOTHING HEREIN SHALL
BE CONSTRUED AS A WAIVER OF THE CITY'S GOVERNMENTAL IMMUNITY AS
FURTHER PROVIDED BY THE LAWS OF TEXAS.
6. Insurance. The Contractor shall carry the following insurance coverage with a company that is licensed
to do business in Texas or otherwise approved by the City:
L Commercial General Liability
a.Combined limit of not less than $2,000,000 per occurrence;$4,000,000.00 aggregate or
b. 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.
c. Defense costs shall be outside the limits of liability.
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.
;. Professional Liability (Errors & Omissions) in the amount of$1,000,000 per claim and
$1,000,000 aggregate limit.
4. Statutory Workers' Compensation and Employers' Liability Insurance requirements per the
amount required by statute.
5. Any other insurance as reasonably requested by City.
General Insurance Requirements:
BenehTree Enterprises,LLC Page 2 of 5
Professional Services Agreement
I. 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.
2. The workers' compensation policy shall include a Waiver of Subrogation (Right of
Recovery)in favor of the City of Fort Worth.
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.
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 solvency to the
satisfaction of Risk Management. If the rating is below that required, written approval of
Risk Management is required.
5. Any failure on the part of the City to request required insurance documentation shall not
constitute a waiver of the insurance requirement.
6. Certificates of Insurance evidencing that the Contractor has obtained all required insurance
shall be delivered to and approved by the City's Risk Management Division prior to
execution of this Agreement.
7. Unauthorized Access.
Contractor acknowledges information received under this Agreement by the City is confidential and shall
store and maintain such City Information in a secure manner and shall not allow unauthorized users to
access, modify, delete or otherwise corrupt City Information in any way. Contractor shall notify the City
immediately if the security or integrity of any City information has been compromised or is believed to
have been compromised, in which event, Contractor shall, in good faith, use all commercially reasonable
efforts to cooperate with the City in identifying what information has been accessed by unauthorized
means and shall fully cooperate with the City to protect such information from further unauthorized
disclosure. Contractor agrees to not disclose this City Information without written authority from the City,
except for the purposes authorized in Exhibit"B"or as required by law.
8. Miscellaneous.
a. Assignment. This Agreement does not constitute either party as the agent or legal representative
of the other for any purpose whatsoever. The parties are not granted any express or implied
right or authority to assume or create any obligation or responsibility on behalf of the other or to
bind the other in any manner whatsoever. T'he Parties shall not assign this Agreement without
the prior written consent of the other.
b. Authority. Each party covenants with the other that it has full power and authority to enter into
and perform its obligations under this Agreement and the persons executing this Agreement on
their behalf are duly authorized to do so by all requisite action.
C. Notice. All notices, requests, demands,and other communications that are required or permitted
to be given under this Agreement shall be in writing and shall be deemed to have been duly
given upon the delivery or receipt thereof,as the case may be, if delivered personally or sent by
registered or certified mail, return receipt requested, postage prepaid,as follows:
City of Fort Worth/City: Susan Alanis, Assistant City Manager
BenefiTree Enterprises, LLC Page 3 of 5
Professional Services Agreement
1000 Throckmorton Street
Fort Worth,Texas 76102
Copies to: City Attorney's Office
1000 Throckmorton Street
Fort Worth,Texas 76102
To Contractor: Susan B. Bulla
4700 Bryant Irvin Court
Suite 304
Fort Worth,TX 76107
d. Amendments. The parties expressly reserve the right to modify this Agreement, from time-to-
time, by mutual agreement. No modification or amendment of the provisions of this Agreement
shall be effective unless in writing and signed by authorized representatives of the Parties.
e. Invalidity of Particular Provisions. Should any term, provision, condition, or other portion of
this Agreement or the application thereof be held to be inoperative,invalid,or unenforceable, the
remainder of this Agreement or the application of the term or provision to persons or
circumstances other than those to which it is held invalid or unenforceable shall not be affected
thereby and shall continue in full force and effect.
f. No Waiver. No waiver of full performance by any party shall be construed, or operate, as a
waiver of any subsequent default or breach of any of the terms, covenants, or conditions of this
Agreement.
g. Venue and Jurisdiction. 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. This Agreement shall be governed by the laws of the
State of Texas.
h. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in any way be affected or
impaired.
i. Fleadin-,s not Controlling. Headings and titles used in this Agreement are for reference purposes
only and shall not be deemed a part of this Agreement.
j. Public hiformation Act. Contractor understands and agrees that the City is a public entity under the
laws of the State of Texas,and as such,is subject to various public information laws and regulations,
including, but not limited to, the Texas Public Information Act, Chapter 552 of the Texas
Government Code (the "Act'). Contractor acknowledges that, under the Act, the following
information is subject to disclosure: 1)all documents and data held by the City,including information
obtained from the Contractor, and 2) information held by the Contractor for or on behalf of City that
relates to the transaction of City's business and to which City has a right of access.
k. Right to Audit. Contractor agrees that the City shall, until the expiration of three(3)years after this
Agreement, have access to and the right to examine at reasonable times any directly pertinent
books, documents, papers and records of the Contractor involving transactions relating to this
Agreement at no additional cost to the City. Contractor agrees that the City shall have access
during normal working hours to all necessary Contractor facilities and shall be provided adequate
Bene6Tree Enterprises,LLC Page 4 of 5
Professional Services Agreement
and appropriate work space in order to conduct audits in compliance with the provisions of this
section. The City shall give Contractor not less than |Odays written notice of any intended audits.
L Force MaJeure. If either party is unable, either in whole or part, to fulfill its obligations under this
Agreement due to acts of God; ubrdceo, lockouts, or other industrial disturbances; moto of public
enemies; wars; blockades; insurrections; riots; qpidonoios; public health crises; earthquakes; fires;
floods; restraints or prohibitions by any court, board, department, commission, or agency of the
United States orofany state; declaration of state of disaster orof emergency bv the federal, state,
county,or City government in accordance with applicable law; issuance of a Level Orange or Level
Red Alert bv the United States Department ufHomeland 8*corkv; any arrests n, restraints; civil
disturbances; explosions; or some other reason beyond the party's ruau000b(o control (un||eudvehc
"Force M 'eoxe Event"), the obligations so uffleuted by mucb Force M 'euu: Event will be
suspended only during the continuance of such event.
nu. Entire Agreement. This -written instrument constitutes the uu1ize agreement by the parties hereto
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oral or written agreement,which purports to vary from the terms hereof shall be void.
n. Execution in Counterparts. This Agreement may bs executed in counterparts, each of which
when so executed and delivered mbaD be considered an original, but such counterparts ubai|
together constitute one and the same instrument and agreement. Any aignob/oy delivered by m
party by facsimile or o&boz electronic transmission (including email transmission of podoh|o
document file(pdAor similar image)shall ho deemed tobeuo original oignukuehmmc1o.
IN WITNESS WIIE REOF,this Agreement is executed by the Parties on the Effective Date.
CITY Or FORT WORTH: CONTRACTOR:
—A'§si City M CEO
Vi-
Al, NO
f J. Kayser
L/ City Secret,,u-y
Approved uatwy000 and Legality:
Assistant City Attorney
NOM&CR£OD �D OFFICIAL
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Banefi7\ru Enterprises,DLC Page 5nf5
Professional Services Agreement
ATTACHMENT B
BUSINESS ASSOCIATE AGREEMENT
T lis Business Associate Agreement ("Agreement") is entered into on this
dayof te-e4jibee, 2vie-(the "Effective Date"), by and between the City oj*Fort Worth on
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behalf of itself and its group health and welfare plans (collectively the "Covered Entity")
and BenefiTi-ce Enterprises, LLC. ("Business Associate").
RECITALS:
WHE RE AS, Business Associate and Covered Entity are parties to an agreement for
services, the same being City of Fort Worth Contract No. (the "Contract");
and
WHEREAS, pursuant to the Contract, 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 with
reference to the Contract to govern the use and/or disclosure of Protected Health Information
as required by the Health Insurance Portability and Accountability Act of 1.996 ("HIPAXI),
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 hilbrination (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
terins 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
City of Fort Worth Business Associate Agreement Page I of 10
representative in accordance with 45 C.F.R. §I64.502(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.
(g) "Secretary" shall mean the Secretary of the Department of Health and
Human 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 ePH1, 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 substantially 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
City of Fort Worth Business Associate Agreement Page 2 of 10
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.
(f) 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 promptly notify Covered Entity 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 it
makes 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 C.F.R. § 164.528.
(h) Business Associate agrees to provide to Covered Entity, 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, except as otherwise expressly
permitted herein.
3. Permitted Uses and Disclosures 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:
City of Fort Worth Business Associate Agreement Page 3 of 10
(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.
(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.
City of Fort Worth Business Associate Agreement Page 4 of 10
(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 successful
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. The parties acknowledge and
agree that this section constitutes notice by Business Associate to Covered Entity of
the ongoing existence and occurrence of attempted but unsuccessful Security Incidents
of which no additional notice to Covered Entity shall be required. Unsuccessful
Security Incidents shall include, but not be limited to, pings and other broadcast
attacks on Business Associate's firewall, port scans, unsuccessful log-on attempts,
denials of service, and any combination of the above, so long as such incidents do not
result in unauthorized access,use or disclosure of Covered Entity's PHI.
(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 promptly notify Covered Entity upon
discovery of any Breach of Unsecured Protected Health Information (as defined in 45
C.F.R. §§ 164.402 and 164.410) and 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.
(f) 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
Ciq,of Fort Worth Business Associate Agreement Page 5 of 10
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.
(d) Termination for Convenience. Either party may terminate this
Agreement for convenience, for any reason, upon sixty (60) days written notice to the
other party.
(e) 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 e-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 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.
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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
parry 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 Business Associate:
Assitant City Manager for HR Susan B. Bulla, CEO.
1000 Throckmorton BenefiTree Enterprises, LLC
Fort Worth, Texas 76102 4700 Bryant Irvin Court
with copy to: Suite 304
Fort Worth, TX 76107
City Attorney's Office at same address
11. Regulatory References.
A reference in this Agreement to a section in the Privacy Rule or Security 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 written, pertaining to the subject matter hereof.
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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 the
right 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 firrther 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, to the extent not preempted by applicable federal law. 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. Interpretation.
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 promptly 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
City of Port Worth Business Associate Agreement Page 8 of 10
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.
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 effect that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of this Agreement or exhibits hereto.
19. Signature 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.
20. Conflicts. In the event that any terms of this Agreement are inconsistent with
the terns of the underlying agreement for services, then the terms of this Agreement shall
control.
21. Independent Contractors. Business Associate and Covered Entity are
independent contractors and this Agreement will not establish any relationship of partnership,
joint venture, employment, franchise or agency between Business Associate and Covered
Entity. Neither Business Associate nor Covered Entity will have the power to bind the other
or incur obligations on the other party's behalf without the other party's prior written consent,
except as otherwise expressly provided in this Agreement.
22. Execution in Counterparts. This Agreement may be executed in
counterparts, each of which when so executed and delivered shall be considered an original,
but such counterparts shall together constitute one and the same instrument and agreement.
Any signature delivered by a party by facsimile or other electronic transmission (including
email transmission of a portable document file (pdf) or similar image) shall be deemed to be
an original signature hereto.
Signature Page to Follow
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IN WITNESS WHEREOF, the parties have executed this Business Associate
Agreement as of the Effective Date.
COVE,RED ENTITY: BUSINESS ASSOCIATE:
By: By: _'e�—'
Name: Susan Alanis Name: Susan B. Bulla
Title: Assistant City Manager Title: CEO
IXF
F F0
ATTE T:
/`,Ma Kayser, City Sed(z't
T,.
APPROVED AS TO FORM AND LEGALITY:
Will Trevino,Asst. City Attorney
No M&C Required
5 E C R Ell"/,1 R1,,,,"
TX
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