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Home My WebLink AboutContract 53753 a ((�� a �a f�,pg�,p `,a k��I��e��Yli`T PROFESSIONAL SERVICES AGREEMENT This PROFESSIONAL SERVICES AGREEMENT("Agreement")is made and entered into by and between the CITY OF FORT WORTH ("City" or "Client"), a Texas home rule municipal corporation,acting by and through Jesus Chapa,its duly authorized Assistant City Manager,and Empyrean Benefit Solutions, Inc. ("Empyrean" or "Vendor"), a Delaware corporation with its principal place of business located at 3010 Briarpark Drive, Suite 8000, Houston, TX 77042and acting by and through Richard Wolfe,its duly authorized CEO,each individually referred to as a"party"and collectively referred to as the"parties." AGREEMENT DOCUMENTS: The Agreement documents shall include the following: 1. This Professional Services Agreement; 2. Exhibit A—Scope of Services("SOW"or"Statement of Work"); 3. Exhibit B—Business Associate Agreement; and 4. Exhibit C—Verification of Signature.Authority Form. Exhibits A, B,and C,which are attached hereto and incorporated herein,are made a part of this Agreement for all purposes. In the event of any conflict between the terms and conditions of Exhibits A, B or C and the terms and conditions set forth in the body of this Agreement,the terms and conditions of this Agreement shall control. 1. SCOPE OF SERVICES. Exhibit"A,"-Scope of Services more specifically describes the services to be provided hereunder. 2. TERM. A. This Agreement shall begin on January 13 2020 ("Effective Date") and continues until 60 months following the Go-Live Date (the "Initial Term"). The Go-Live Date shall be defined as June 1, 2020, or the date of Empyrean's receipt of the first production file,whichever is later.At the end of the Initial Term, Client shall have, in its sole discretion, the option to renew for an additional two years, with notice of such intent to renew provided 90 days prior to the end of the Initial Term ("First Extension Term"). At the end of the First Extension Term, Client shall have, in its sole discretion,the option to renew for an additional two years, with notice of such intent to renew provided 90 days prior to the end of the First Extension Term-("Second Extension Term"). 3. COMPENSATION. A. Payment for Services. Client shall pay to Empyrean all fees set forth in an SOW. All fees are stated and payable in United States dollars and are nonrefundable.Client shall ensure that Empyrean has complete, accutate and up-to-date billing and contact information. 4 - B. Payment Due Dates. Except as otherwise provided in a SOW,on or before the Ist day of each month,Empyrean will invoice Client in advance for all fees due for Service(s)to be rendered during that month, and for any reimbursable expenses incurred by Empyrean in connection with the performance of the Service(s). Except as provided under Section C below, all amounts invoiced hereunder will be due and payable within 30 days of the invoice date or as otherwise provided in an SOW. Any amount not paid when due pursuant to this Agreement shall thereafter bear interest until paid at a rate equal to the lesser of 1.5% per month or the maxin Mr. RECEIVED F'RCI �, RECORD! ppR —1 2020 Professional Services Agreement C17Y OF FORT WORTH Cny SECRETARY FT V1/ORTN', -X ¢ i r applicable law. If Client in good faith disputes any amount on an invoice, Client will use commercially reasonable efforts to provide written notice of such dispute to Empyrean within 30 days of the invoice date,and pay all undisputed sums in full by the applicable due date. Client and Empyrean shall negotiate promptly and in good faith to resolve any such dispute pursuant to terms of this Agreement, such negotiation and resolution not to take longer than within 60 days of the date Client notifies Empyrean of such dispute,or such longer time as may be agreed to by the Parties. Notwithstanding the above, Client shall be given the opportunity to review and notify Empyrean in writing of any errors in or objections to any invoices discovered outside the initial payment or invoice date, and shall have 90 days to inform Empyrean of any such objections or discrepancies.Unless Client notifies Empyrean in writing of any errors or objections within the 90 day period,all information contained therein for any document received by Client,will be deemed accurate,complete, and acceptable to Client,and thereafter Empyrean shall have no liability related thereto. Client shall not short-pay invoices due under this Agreement. C. Taxes. Client shall be solely responsible for the payment of any and all federal, state and local taxes applicable to the Service(s)or products provided under this Agreement, including,without limitation, any and all sales,use,excise,ad valorem,or value-added taxes,other than taxes based on Empyrean's income. D.Payments for Services due pursuant to this Agreement shall not exceed,in the aggregate,$2,250,000. 4. TERMINATION. 4.1 Non-appropriation of Funds. 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 this Agreement shall terminate on the last day of the fiscal period for which appropriations were received ("Early Termination"), except as to the portions of the payments herein agreed upon for which funds have been appropriated, and City shall provide Vendor 35% of the"Monthly Average Payment"(as defined below)for each calendar month remaining in the Term after the date of the Early Termination plus any unpaid deferred implementation fees (the"Early Termination Payment"). "Monthly Average Payment Amount" means the total amount of fees for all services paid or payable by Client under this Agreement from the Effective Date through the end of the whole calendar month immediately preceding the date of the Early Termination,,divided by the number of whole calendar months from the Effective Date to the date of the Early Termination. Any payment due for Early Termination as provided for under this section plus any unpaid deferred implementation fees are due and payable within fifteen (15) days of the date of such Early Termination. Until such Early Termination Payment, unpaid deferred implementation fees, and any undisputed ongoing fees are paid in full, no de-conversion data or files shall be provided, irrespective of transition assistance obligations hereunder, following such Early Termination, Either Party may terminate this Agreement immediately upon delivery of written notice to the other Party in the event that the other Party materially breaches any provision(s) of this Agreement and fails to cure such breach within 30 days after receiving written notice specifying the default, or for those defaults that cannot be reasonably be cured within 30 days, promptly to commence curing such default and thereafter proceed with all due diligence to cure the default. Nothing contained in this Section 4.1 shall be construed to limit the remedies available to the Parties hereunder,by law or otherwise. 4.2 Termination Events. Either Party may terminate this Agreement immediately upon delivery of written notice to the other Party in the event that the other(i)voluntarily suspends transaction of business; (ii) becomes insolvent, unable to pay any indebtedness as it matures, or is forced into involuntary bankruptcy; (iii) makes an assignment for the benefit of creditors; (iv) applies for or consents to the appointment of a receiver or trustee for it or for any substantial portion of its property; (v) makes an Professional Services Agreement Page 2 of 21 assignment to an agent authorized to liquidate any substantial part of its assets; (vi)by an order of any court or other authority,has appointed any receiver or trustee for it or for any substantial portion of its property; or (vii) has a writ or warrant of attachment or any similar process issued by any court or other authority against any substantial portion of its property and such involuntary petition seeking liquidation, reorganization or a creditor's arrangement or such order appointing a receiver or trustee is not vacated or stayed, or such writ,warrant of attachment or similar process is not vacated,released or bonded off within 90 days after its entry or levy. 4.3 Suspension of Services and Termination for Failure to Pay Fees. City's failure to pay all undisputed amounts within sixty (60)days of the invoice date will entitle Vendor, in addition to any other rights or remedies it may have,to suspend performance of the Service(s). In addition to other termination rights contained herein, Vendor shall also have the right to terminate this Agreement upon written notice to City, if City fails to pay to Vendor the undisputed fees in accordance with the terms and conditions set forth in this Agreement and City fails to cure such breach within 90 days after receipt from Empyrean of written notice of such non-payment. In the event of non-payment, Vendor reserves all rights permitted by law and under this Agreement. 5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION. 5.1 General Confidentiality. 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 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.. 5.2 Iniunctive Relief. The Parties acknowledge that a breach by either Party of Section X(Confidentiality) or Y (Intellectual Property Rights) may give rise to irreparable injury to the other Party, inadequately compensable in damages. Accordingly,each Party hereby agrees that the other Party may seek injunctive relief against the breach or threatened breach of the undertakings of the Parties contained in Section X or Y. The Parties further agree that such an order so enjoining a Party may be issued pending final determination thereof,without the requirement to post bond. 5.3 Return of Confidential Information. Upon termination or expiration of this Agreement,the Receiving Party shall return or destroy all Confidential Information of the Disclosing Party in its possession. Empyrean shall not retain any copies of the Client Confidential Information, except for encrypted back-up data, and shall not make further use of Client Confidential Information, except where such Client Confidential Information has been de-identified.and aggregated.For any Confidential Information that cannot be destroyed or returned(including encrypted back up data), the Receiving Party possessing such Confidential Information shall extend all confidential protections to the Client Data,as outlined in this Agreement,until such time as the Client Data may be destroyed or returned.Notwithstanding, Empyrean shall not have any obligation to return Client Data,including Client Confidential Information,unless and n until Client pays all undisputed sums due to Empyrean pursuant to this Agreement. a 5A Compliance with HIPAA. Each Party agrees that it will comply with its respective applicable obligations under the Health Insurance Portability and Accountability Act of 1996 and the regulations promulgated thereunder, all as may be amended from time to time("HIPAA"), and the Health Information Technology for Economic and Clinical Health Act and any regulations promulgated thereunder, all as may be amended from time to time ("HITECH"). Notwithstanding any provision of this Agreement to the contrary,the protection,use and disclosure of any Protected Health Information, as such term is defined by HIPAA, shall be governed by the Business Associate Agreement attached hereto as Exhibit B. Professional Services Agreement Page 3 of 21 r r 6. RIGHT TO AUDIT. Client,or a third party on Client's behalf,may engage a third party auditor to,conduct an audit at Client's expense to determine whether Empyrean is fulfilling the terms of this Agreement subject to the terms herein. With respect to any audit request, Client must advise Empyrean in writing at least 30 days in advance of the proposed date of such audit and shall specify in reasonable detail the nature and proposed scope of such audit, such scope being reasonable and suitable for the intended purpose of such audit. The place,time,type,duration, and frequency of all audits must be reasonable,and in no case may any audit exceed 3 business days. In connection with any audit requested by Client of Empyrean, and prior to any such audit, Client's third party auditor will be required to enter into a separate confidentiality agreement with Empyrean in the form of Empyrean's standard nondisclosure agreement. Under no circumstances will Empyrean be required to disclose information about proprietary systems, software, or business practices or for any matter unrelated to the Servicc(s)provide to Client, including other Empyrean client information. Client will provide Empyrean a copy of any written report of findings and recommendations from the third party auditor that is provided to Client.Empyrean and Client shall discuss the feasibility of any changes recommended by such audit report, provided that Empyrean shall be under no obligation to implement any changes recommended by such audit report.Such report will be treated by Client as Confidential Information. Any such audit will be at Client's expense and may not occur more than once per 12 month period.The rights outlined herein shall continue until 3 years after the date of termination of the Agreement,though notwithstanding the foregoing,for any audits conducted after the termination of the Agreement, Empyrean shall be reimbursed at a time and expense basis for its participation in such audit request. 7. Intellectual Property Rights A. Intellectual PropeM Rights. Intellectual Property Rights means on a world-wide basis, any and all intangible rights associated with (i) works of authorship including, without limitation, copyrights, moral rights and mask works;(ii)trademark and trade name rights and similar rights; (iii)trade secret rights;(iv)patents, designs, algorithms and other industrial property rights; (v) all other intellectual and industrial property rights of every kind and nature and however designated,whether arising by operation of law,contract, license or otherwise; and (vi) all registrations, applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force(including any rights in any of the foregoing). B.No Other Rights or Ownership. Except as outlined in this Agreement,no transfer of ownership of any Intellectual Property Rights will occur under this Agreement. Client grants Empyrean a non-exclusive, worldwide,royalty-free right and license to any Intellectual Property Rights that are necessary for Empyrean and its designees to perform Services. Other than as expressly set forth in this Agreement,no license or other rights in the Service(s),the Empyrean Proprietary Property or Empyrean's Confidential Information are granted to the Client. All rights not expressly granted in this Agreement are hereby reserved by Empyrean. C. Client Proprietary Prope . Client owns all right,title and interest in and to all Client Data; Client Reports(except as provided below),Client's Intellectual Property Rights, as may now exist or hereafter come into existence,under the Iaws of any state,country,territory or other jurisdiction throughout the world(collectively "Client Proprietary Property"). In the event that any Empyrean Confidential Information(as defined in Section X)or Empyrean Proprietary Property(as defined Section Y)are contained in any Client Reports,Empyrean shall maintain ownership of said information and Client agrees to keep the Empyrean Confidential Information and Empyrean Proprietary Property for its own internal business uses and not for third party consumption(other than for Client to maintain its internal business operations.Notwithstanding Client shall not sell,transfer, publish, disclose, develop, § display, license, or otherwise make available, any part of the CIient Reports that contains Empyrean Proprietary Property and/or Empyrean Confidential Information without the express written permission of Empyrean. D. Empyrean Proprietary Property. Empyrean owns all rights,title,and interest in and to all Empyrean Intellectual Property Rights,Empyrean Creations as defined below,any de-identified data as defined below,and any other intellectual property rights as may now exist or hereafter come into existence under the laws of any state,country, territory or other jurisdiction throughout the world(collectively"Empyrean Proprietary Property"). Professional Services Agreement Page 4 of 21 3 E. Empyrean Creations. Client hereby grants and assigns to Empyrean all of Client's right,title and interest in and to any suggestions,ideas,enhancement requests,feedback,recommendations or other information as well as any resulting work product or derivative works,inventions,ideas,designs,source or object codes received during the term of this Agreement to the extent that Empyrean Creations do not constitute any Client Data("Empyrean Creations"). Empyrean Creations also mean a new or modified work that is based on or derived from all or any part of the Service(s), including without limitation,a revision,modification,translation,localization, adaptation,abridgment,port,condensation or expansion,in any form,of the Service(s),source or object code, designs,process,concepts,discoveries,inventions,etc.and shall be the sole and exclusive property as Empyrean Proprietary Property. F. De-identified Information. Client acknowledges and agrees that solely for the purposes of Empyrean improving the services it supplies to clients,Empyrean may de-identify(meaning that individual specific information has been removed from the data in such a way that the identity of such person is no longer reasonably discoverable) any employee source data provided by or on behalf of Client,and aggregate such de-identified source data with other data, and such de-identified and aggregated data will be the sole property of Empyrean and Empyrean Proprietary Property,notwithstanding that it may be derived from the Client Data. 7. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Vendor shall operate as an independent contractor as to all rights and privileges and work performed under this Agreement, and not as agent, representative or employee of City. Subject to and in accordance with the conditions and provisions of this Agreement, Vendor shall have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its officers, agents, servants, employees, consultants and subVendors. Vendor acknowledges that the doctrine of respondeat superior shall not apply as between City, its officers, agents, servants and employees, and Vendor, its officers, agents, employees, servants, Vendors and subVendors. Vendor further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Vendor. It is further understood that City shall in no way be considered a Co-employer or a Joint employer of Vendor or any officers,agents,servants,employees or subVendor of Vendor. Neither Vendor, nor any officers, agents, servants, employees or subVendor of Vendor shall be entitled to any employment benefits from City. Vendor shall be responsible and liable for any and all payment and reporting of taxes on behalf of itself, and any of its officers, agents, servants, employees or subVendor. 8. INDEMNIFICATION. A. IP Indemnification. Empyrean will,at its own expense,defend,indemnify and hold harmless Client and its affiliates, and each of its respective officers, directors, employees and subcontractors from and against all liability, loss,judgment, expense (including reasonable attorney's fees and costs) or damages as any are incurred (collectively "Losses") arising out of or in connection with any third party claim, demand, cause of action, or proceeding("Claim")to the extent arising out of related to any allegation of infringement or misappropriation of an Intellectual Property Right that arises out of or relates to materials,data or services owned or furnished by Empyrean to Client,provided the Party entitled to indemnification hereunder did not use such materials, data or services in an unauthorized manner or in a manner not otherwise provided for under the Agreement. Notwithstanding,if any materials or services are likely to become or do become the subject of a claim of infringement or misappropriation of an Intellectual Property Right of a third party,the indemnifying Party may,at its sole option and reasonable expense,either: (1)promptly replace the infringing materials or service(s)with a substantially compatible and functionally equivalent non-infringing materials or service(s);(2)promptly modify the infringing materials or service(s)to make them non-infringing and functionally equivalent;or(3)promptly procure the right of the other Party to continue using the infringing materials or service(s).This right shall not be construed to diminish,reduce or extinguish the indemnifying Party's obligations otherwise to indemnify under the provisions of this Section. Professional Services Agreement Page 5 of 21 D. Cooperation. In the event of any occurrence which may constitute grounds for indemnification under this Section,the Party seeking indemnification shall:(i)promptly notify the other Party of any occurrence with respect to which indemnification is sought, provided that any delay shall only relieve the indemnifying Party of its obligations hereunder to the extent that the defense of such Claim is prejudiced by such delay;(ii)cooperate with the indemnifying Party in the defense of any Claim with respect to which indemnification is sought; (iii) tender to the indemnifying Party the right to assume and control the defense of any Claim with respect to which indemnification is being sought, provided that the indemnifying Party may not settle a Claim unless it unconditionally releases the indemnified Parties of all liability); and(iv)not to cause or contribute to any occurrence, nor to take any action, or fail to take any action,which causes,contributes to or increases the indemnifying Parry's liability hereunder. E. Disclaimer of Interference. Empyrean expressly disclaims all responsibility and liability,and Client hereby agrees to forever release and hold Empyrean harmless,for damages,interruptions,interference,down time or other interference with the Service(s) caused by circumstances beyond Empyrean's reasonable control, including without limitation, (i) Force Majeure Events as described in Section .Z (Force Majeure Events); (ii) telecommunications network or electrical failures (including those of wireless telecommunications companies); (iii) Client network intrusions or denial of service attacks;(iv)delays or interruptions caused by integration with any Client asset or third party APIs,networks,databases,or content. LIMITATION OF LIABILITY A. Exclusions. Neither Party shall be liable for third party fines or penalties,indirect,incidental; consequential, special, exemplary, or punitive damages, excise taxes, loss of use, data, business, revenue or profits, or for the cost of procuring substitute products or services, arising out of or in connection with this Agreement, (including, without limitation, any service or work product rendered hereunder or the non- performance or breach of this Agreement),regardless of the form of action including without limitation breach of warranty, breach of contract,tort(including negligence),strict liability or statutory liability,and whether or not the Party has been informed of or might otherwise have anticipated the possibility of such damages. B. Limits of Liability. Empyrean's maximum liability (whether in contract, tort, negligence, strict liability in tort or by statute or otherwise) to Client for any and all claims concerning performance or non-performance by Empyrean or any other person or entity for which Empyrean is legally responsible,or in any manner related to this Agreement or the Services,shall not in the aggregate exceed the fees paid by the Client to Empyrean under the applicable SOW for the 12 months immediately preceding the month in which the claim or claims arise,or in the case of Empyrean's breach of PHI as outlined in the BAA, a times the fees paid by the Client to Empyrean under the applicable SOW for the 12 months immediately preceding the month in which the claim(s) arise(s). C.Other Liability. Notwithstanding anything to the contrary herein,if Client's Services include Safeharbor and/or Code Section 6055/6056 Reporting,Client's sole and exclusive remedy for any and all errors or claims that may arise as a result of such same Services provided by Empyrean and/or any of its subcontractors,shall be limited to the reprocessing of the work for the applicable service,or a refund to Client of the amount paid for such applicable service in the 12 months immediately preceding the month in which the claim or claims arise,if reprocessing is deemed impossible by Empyrean in its reasonable discretion.At no time will Empyrean and/or its subcontractors be liable for any fines or penalties associated with any errors relating to Safeharbor or 6055/6056 tax reporting services. D. Right to Mitigate. In the event of an error caused by Empyrean and/or its subcontractor(s) that give rise to a Claim under this Agreement(or that may give rise to a Claim),Empyrean and/or its subcontractor(s)will be given'the opportunity to mitigate any error to the fullest extent under the Agreement, provided such mitigation is not prohibited by law.Client agrees to reasonably cooperate in such mitigation efforts. 9. ASSIGNMENT AND SUBCONTRACTING. Professional Services Agreement Page 6 of 21 1 4 ! 9.1 Assignment. Neither Party may assign this Agreement or any rights hereunder without the prior written approval of the other Party which such approval will not be unnecessarily withheld. Notwithstanding the foregoing, either Party may assign this Agreement to any subsidiary or affiliate under is control, or as part of the sale of any substantial portion of its assets, or pursuant to any merger or consolidation,without the other Party's consent, provided that such Party effectuating the assignment shall provide notice to the other Party within 30 days of such assignment and the assignee agrees to execute any amendments or other documents,if appropriate.To the extent that there are successors or assigns permitted under this Section, this Agreement shall be binding on and inure to the benefit of the Parties and their respective successors and assigns. 10. INSURANCE. Vendor shall provide City with certificate(s) of insurance documenting policies of the following minimum coverage limits that are to be in effect prior to commencement of any work pursuant to this Agreement: 10.1 Coverage and Limits (a) Commercial General Liability: $1,000,000- Each Occurrence $2,000,000- Aggregate (b) Automobile Liability: $1,000,000 - Each occurrence on a combined single limit basis Coverage shall be on any vehicle used by Vendor, its employees, agents, representatives in the course of the providing services under this Agreement."Any vehicle"shall be any vehicle owned, hired and non-owned. (c) Worker's Compensation: Statutory limits Employer's liability $100,000 - Each accidentloccurrence $100,000 - Disease-per each employee $500,000 - Disease-policy limit This coverage may be written as follows: Workers' Compensation and Employers' Liability coverage with limits consistent with statutory benefits outlined in the Texas workers' Compensation Act (Arts 8308— 100 et seq.Tex.Rev_Civ. Stat.)and minimum policy limits for Employers' Liability of: $100,000 - each accident/occurrence, $500,000 bodily injury disease policy limit Professional Services Agreement Page 7 of 21 a 1 � $100,000 - per disease per employee. (d) Professional Liability(Errors&Omissions) $1,000,000- Each Claim Limit $1,000,000- Aggregate Limit Professional Liability coverage may be provided through an endorsement to the Commercial General Liability (CGL) policy, or a separate policy specific to Professional E&O. Either is acceptable if coverage meets all other requirements. Coverage shall be claims-made,and maintained for the duration of the contractual agreement. An annual certificate of insurance shall be submitted to City to evidence coverage upon request. 10.2 General Requirements {a) 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. (b) Any failure on the part of City to request required insurance documentation shall not constitute a waiver of the insurance requirement. (c) Certificates of Insurance evidencing that Vendor has obtained all required insurance shall be delivered to the City prior to Vendor proceeding with any work pursuant to this Agreement. 11. COMPLIANCE WITH LAWS, ORDINANCES,RULES AND REGULATIONS. Vendor agrees that in the performance of its obligations hereunder, it shall comply with all applicable federal,state and local laws, ordinances,rules and regulations,as they apply to the Services,and that any work it produces in connection with this Agreement will also comply with all applicable federal, state and local laws,ordinances,rules and regulations.If City notifies Vendor of any violation of such laws, ordinances, rules or regulations, Vendor shall in good faith consider such notification and, where Vendor has been acting in violation of the law,desist from and correct the violation. 12. NON-DISCRIMINATION COVENANT. Vendor, for itself, its personal representatives, assigns, subVendors and successors in interest, as part of the consideration herein, agrees that in the performance of Vendor's duties and obligations hereunder,it shall not discriminate in the treatment or employment of any individual or group of individuals on any basis prohibited by law. - 13. NOTICES. Notices required pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered when (1) hand-delivered to the other party, its agents, employees, servants or Professional Services Agreement Page 8 of 21 r a representatives,(2)delivered by facsimile with electronic confirmation of the transmission, or(3)received by the other party by United States Mail, registered,return receipt requested, addressed as follows: To CITY: To VENDOR: City of Fort Worth Empyrean Benefit Solutions, Inc. Attn: Jesus Chapa,Assistant City Manager Attn: Compliance and Contracts Department 200 Texas Street 3010 Briar Park, Suite 8000 Fort Worth,TX 76 1 02-63 1 4 Houston,TX 77042 Facsimile: (817)392-8654 With copy to Fort Worth City Attorneys'Office at same address 14. SOLICITATION OF EMPLOYEES. Neither City nor Vendor shall, during the term of this Agreement and additionally for a period of one year after its termination, solicit for employment or employ, whether as employee or independent contractor,any person who is or has been employed by the other during the term of this Agreement,without the prior written consent of the person's employer. Notwithstanding the foregoing,this provision shall not apply to an employee of either party who responds to a general solicitation of advertisement of employment by either party. 15. GOVERNMENTAL POWERS. It is understood and agreed that by execution of this Agreement, City does not waive or surrender any of its governmental powers or immunities. 16. NO WAIVER. The failure of City or Vendor to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein shall not constitute a waiver of City's or Vendor's respective right to insist upon appropriate performance or to assert any such right on any future occasion. 17. GOVERNING LAW/VENUE. This Agreement shall be construed in accordance with the laws of the State of Texas. If any action, whether real or asserted, at law or in equity, is brought pursuant to this Agreement, venue for such action shall Iie in state courts located in Tarrant County,Texas or the United States District Court for the Northern District of Texas,Fort Worth Division. 18. 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. 19. FORCE MAJEURE. Professional Services Agreement Page 9 of 21 Either Party shall be excused from the performance of its obligations under this Agreement,including but not limited to any service level agreements, if applicable, except Client's obligation to pay amounts due hereunder for Services performed, and it shall not constitute a breach if such is due to: acts of God, acts or omissions of the other Party, acts of any government or regulatory body (whether civil or military, domestic or foreign) fires, explosions, floods, earthquakes or other natural or man-made disasters, epidemics, sabotage,terrorism, wars, riots, civil disturbances, loss of electrical or other power or telecommunications equipment or line failures, or any other event or circumstance(whether similar or dissimilar to any of the foregoing),whether or not foreseeable,that was not caused by that party and any consequences of that event or circumstance. (each a "Force Majeure Event"), provided the Party claiming a Force Majeure Event: (i)promptly gives the other Party written notice of such event; (ii) uses its reasonable best efforts to correct such failure or reduce the delay in its performance; and (iii) follows commercially prudent standards for mitigating the risk associated with such event,in light of the severity of damages such event could cause the other Party. 20. HEADINGS NOT CONTROLLING. Headings and titles used in this Agreement are for reference purposes only, shall not be deemed a part of this Agreement,and are not intended to define or limit the scope of any provision of this Agreement. 21. REVIEW OF COUNSEL. The parties acknowledge that each party and its counsel have reviewed and revised 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 A,B,and C. 22. AMENDMENTS/MODIFICATIONS/EXTENSIONS. No amendment,modification, or extension of this Agreement shall be binding upon a party hereto unless set forth in a written instrument,which is executed by an authorized representative of each party. 23. ENTIRETY OF AGREEMENT. This Agreement, including Exhibits A, B and C, contains the entire understanding and agreement between City and Vendor, their assigns and successors in interest, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. 24. COUNTERPARTS. This Agreement may be executed in one or more counterparts and each counterpart shall, for all purposes, be deemed an original, but all such counterparts shall together constitute one and the same instrument. 25. WARRANTY OF SERVICES. A. Vendor warrants that its services will be of a professional quality and conform to generally prevailing industry standards. City must give written notice of any breach of this warranty within thirty (30) days from the date that the services are completed. In such event, at Vendor's option, Vendor shall either(a) use commercially reasonable efforts to re-perform the services in a manner that conforms with the warranty,or(b)refund the fees paid by City to Vendor for the nonconforming services. Professional Services Agreement Page 10 of 21 } } B. Authority. Each Party represents to the other that (i) it has all requisite corporate power and authority to enter into this Agreement and to carry out its obligations hereunder,and(ii)its execution,delivery and performance of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by all requisite corporate action on the part of such Party. C. No Third Party Breach and Enforceability. Each Party represents to the other that(i)its entry into this Agreement does not violate or constitute a breach of any of its contractual obligations with any third party and (ii)this Agreement is a valid and binding obligation of such Party,enforceable against it in accordance with its terms. D. Client Data Ownership and Lawful Use. Client represents and warrants that it owns, is lawfully authorized to provide to Empyrean, and Empyrean may lawfully use all Client Data for the purposes of providing Service(s)under this Agreement. E. Services "As-Is". Except as expressly provided herein,the scope of work provided and the Services rendered by Empyrean under the Agreement are provided on an"as is"and"where is"basis,without any warrant,express or implied or otherwise regarding such scope of work or services,accuracy,performance, or any other matter. F. No Express or Implied Warranties. Except as expressly- set forth in this Agreement, Empyrean disclaims,to the extent allowable by local law,all other warranties,express or implied,in fact or by operation of law or otherwise, with respect to this Agreement and/or the Services provided hereunder, including but not limited to the implied warranties of merchantability and fitness for a particular purpose and does not warrant that the Services will be uninterrupted or error-free. 26. IMMIGRATION NATIONALITY ACT. City actively supports the Immigration & Nationality Act (INA) which includes provisions addressing employment eligibility, employment verification, and nondiscrimination. Vendor shall verify the identity and employment eligibility of all employees who perform work under this Agreement. Vendor shall complete the Employment Eligibility Verification Form (1-9),maintain photocopies of all supporting employment eligibility and identity documentation for all employees, and upon request,provide City with copies of all 1-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Vendor shall establish appropriate procedures and controls so that it may comply with the INA as applicable. Vendor shall provide City with a certification letter that it has complied with the verification requirements required by this Agreement. 27. SIGNATURE AUTHORITY. The person signing this Agreement hereby warrants that he/she has the legal authority to execute this Agreement on behalf of the respective party,and that such binding authority has been granted by proper order,resolution,ordinance or other authorization of the entity.This Agreement and any amendment hereto, may be executed by any authorized representative of Vendor whose name,title and signature is affixed on the Verification of Signature Authority Form, which is attached hereto as Exhibit"C". Each party is fully entitled to rely on these warranties and representations in entering into this Agreement or any amendment hereto. 28. DISPUTE RESOLUTION A. Dispute Resolution. In addition to any other applicable provision in this Agreement, the Parties will make initial informal efforts to resolve any claim or controversy arising out of or relating to this Agreement or an Professional Services Agreement Page 11 of 21 } } alleged breach hereof. The Parties will start with an informal meeting between an executive or officer of each Party. If the informal meeting fails to reach an amenable result for both Parties,the dispute will escalate to formal mediation. B. Attorneys' Fees. The prevailing Party in any judicial or legal proceedings brought by or against the other Party to enforce any provision of this Agreement shall be entitled to recover against the non-prevailing Party the reasonable attorneys' fees, court costs and other expenses incurred by the prevailing Party, in addition to any damages or other relief to which the Party may be entitled pursuant to such proceeding. C. Limitation Period. Neither Party may assert any cause of action against the other Party arising under or in connection with this Agreement where more than 1 year has elapsed from the date of the action giving rise to the claim. 29. SERVICES AND SCOPE OF SERVICE A. Services. Empyrean will provide Client with access to Empyrean's interriet-based technology platform and certain administrative, analytical and other services (the platform and the services, collectively the "Services") as more particularly described in one or more Statements of Work entered into in connection with this Agreement(each an "SOW'), which are hereby incorporated herein and attached hereto as Exhibit A. Each such SOW executed by the Parties will be deemed a two-party agreement between Empyrean and Client, and nothing contained in an SOW or in this Agreement shall be construed to require that Empyrean contract with any third party, whether carrier or other vendor of Client's in order to perform the Services. B. Updates. Empyrean,may,from time to time,develop and install updates to the Services ("Updates"), including but not limited to general system maintenance,security updates,bug fixes,upgrades or improvements to the Services. 30. CLIENT RESPONSIBILITIES A. Plan Administration. Client shall be responsible for overseeing the operations and administration of the employee benefit plans for its employees as listed in the applicable SOW(Individually,a"Plan" and collectively,the 'Plans"). Client acknowledges and agrees that the Service(s)to be performed by Empyrean are being performed on behalf of the Client as an employer and/or plan sponsor and are ministerial in nature.Client shall not make non-trivial misrepresentations about the Services. All Services are performed by Empyrean (or its subcontractors where applicable) within the framework of policies, interpretations, rules, practices and procedures made or established by Client and will be specified in one or more SOWS, requirements documents, processing documents,and/or other written documentation that Client will provide to Empyrean and/or create in conjunction with the Services,or any other written directions from Client that may come during the Term of this Agreement("Client Direction(s)"). Empyrean will not have any discretionary authority with respect to the administration, management or operation of the Plans and will operate in accordance with the Client Direction(s) from Client,or with respect to determining or changing the rules or policies pertaining to eligibility or entitlement of any participant in any Plan to benefits under such Plan. Empyrean is not a"plan administrator"or fiduciary"within the meaning of the Employee Retirement Income Security Act of 1974,as amended, with respect to the Plans or Services.Empyrean also shall not have any control or authority with respect to any assets of any Plan,including the investment or disposition thereof. Empyrean cannot be relied upon to discover noncompliance with laws,errors, irregularities or illegal acts, including fraud or falsifications that may exist in the Plans or in the administration thereof. Empyrean will not be liable for any actions taken, or not taken, as directed by or caused by actions of Client or its customers or employees, the plan administrator(s) of the Plans, or any other person(s) authorized to provide Client Direction(s) to Empyrean (or its subcontractors where.applicable). } B. Client Data. Client shall provide to Empyrean or its designee,and shall cause each of Client's Divisions referenced in an SOW and any third parties, including carriers or service providers, that currently or previously provided services with respect to the Plans or any carrier Client may use,to provide to Empyrean or its designee such data necessary for Empyrean to perform the Service(s)as outlined under the SOW, including but not limited to individually identifiable data relating to participants and beneficiaries of the Plans whether as initial data files to Empyrean or as part of a reconciliation process in response to files sent by Empyrean,and employee and Client Professional Services Agreement Page 12 of 21 source data(collectively"Client Data")as is necessary for Empyrean to properly perform the Services.Client assumes full responsibility for the Client Data, including, but not limited to, the condition, content, format, usability or correctness of the Client Data. Client shall provide,and shall cause each Division and each third party service provider or any carrier Client may use,as applicable,to provide,all such Client Data that is legible and correct,in the form and format reasonably requested by Empyrean.Empyrean shall not be liable or responsible for loss of or damage to,the Client Data before Empyrean has taken possession of the Client Data. Client shall retain the necessary backup for the Client Data to protect against such loss or damage. Empyrean shall not be liable for errors or delays in the Services due to errors or omissions in Client Data.Empyrean will return to Client,Division,or third-party service provider,as applicable, for correction before processing any Client Data that is incorrect,illegible or not in proper form,in which event Empyrean shall not be required to meet the deadlines, if any,prescribed in the applicable SOW,but shall use reasonable efforts to process the data promptly after resubmission of corrected Client Data. C. Client Reports. In connection with providing the Service(s),Empyrean will,from time to time, prepare certain summaries,reports,analyses,as provided in any SOW or Change Order and deliver such documents to Client("Client Reports"). Client agrees to review such Client Reports within 30 days of receipt.Unless Client notifies Empyrean in writing of any errors or objections within such 30 day period,all information contained therein shall be deemed accurate,complete and acceptable and thereafter Empyrean shall have no liability with respect to such Client Reports. D. No Derivative Works. Client, its affiliates, officers, employees, ,subcontractors, agents, representatives,brokers and/or consultants shall not(i)modify,copy or make derivative works.based on the Service(s), any software(whether in source code or object code form)used with the Service(s),Empyrean Proprietary Property (as defined in Section X) or any portion thereof, (ii) disassemble, reverse engineer, or decompile the Service, any software(whether in source code or object code form)used with the Service(s),Empyrean Proprietary Property;(iii) create Internet"links"to or from the Service(s),or"frame"or"mirror"any of Empyrean's content which forms part of the Service'(other than on Clients'own internal intranets);(iv)re-license,rent,lease,timeshare,or act as a service bureau or provide subscription services for the Empyrean Service(s);(v)use the Empyrean Service(s)to provide third- party training except for training agents and contractors that Empyrean has authorized in writing; (vi) remove or modify any program or service markings or any notice of Empyrean's Proprietary Property; (vii)disclose results of any benchmark or other tests without Empyrean's prior written consent;(viii)knowingly transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; (ix) knowingly interfere with or disrupt the integrity or performance of the Service(s)or the data contained therein;(x)attempt to gain unauthorized access to the Service(s),computer systems or networks related to the Service(s). E. Passwords. Client shall be solely responsible for maintaining the confidentiality of any password(s) issued and is fully responsible for all activities that occur under Client's authorized user accounts. Client must hold confidential its login, password and any information obtained from Empyrean and use the log-in password and information solely to access and use the Service(s). Client agrees to immediately notify Empyrean of any unauthorized use of any of Client's authorized passwords or accounts or any other breach of security. (signature page follows) � _ A Professional Services Agreement Page 13 of 21 ACCEPTED AND AGREED: CITY OF FORT WORTH: EMPYREAN BENEFIT SOLUTIONS,INC. Name: Jesus Chapa Assistant City Manager � 3 9 Data: 3 By: Name: Richard Wolfe APPROVAL RECO ENDED: Title: CEO Date: 3/27/2020 By. e: Title: . t , e ATTEST: p , "Sec By: 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 and reporting requirements. By: Name: Title: APPROVED AS TO FORM AND LEGALITY: By: 'q hmt4 OUAIYV am Assistant City Attorney CONTRACT AUTHORIZATION: OFFUICUA ,RE M&C: N/A FT: WORTH, 'rX Professional Services Agreement Page 14 of 21 e d a Professional Services Agreement—Exhibit A Page 15 of 21 EXHIBIT B BUSINESS ASSOCIATE AGREEMENT THIS BUSINESS ASSOCIATE AGREEMENT ("BAA"), is by and between City of Fort Worth, ("Client"), as Plan Sponsor and/or on behalf of its group health plan(s) and Empyrean Benefit Solutions, Inc., ('Empyrean'),the Business Associate(each a"Party"and collectively the"Parties"). WHEREAS,the Client and Empyrean have entered or desire to enter into an agreement for the provision of certain services by Empyrean to Client(the"Agreement'); and WHEREAS, the Parties wish to comply with the provisions of the Health Insurance Portability and Accountability Act of 1996 and the regulations promulgated thereunder, all as amended from time to time (herein, "HIPAA Privacy and Security")and the HITECH Act,Subtitle D of the American Recovery and Reinvestment Act of 2009 and its implementing regulations (herein, "The Act" and together with HIPAA Privacy and Security "HIPAA");and WHEREAS,pursuant to the Agreement, Client may send Protected Health Information to Empyrean, and Empyrean may create or receive Protected Health Information on behalf of Client(collectively,"Client PHI"),and the Parties agree that a BAA is needed. NOW, THEREFORE,, in consideration of the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intended to be legally bound hereby,the Parties hereto agree as follows: Definitions: Unless otherwise specified herein,terms in this BAA have the same meaning as those terms in the HIPAA privacy and security rules at 45 C.F.R. §parts 160 and 164. BAA Provisions: 1. HIPAA Business Associate Agreement. This BAA establishes the permitted and/or required uses and disclosures of Client PHI by Empyrean. Client acknowledges that it holds appropriate business associate agreements with its other contracted vendors and that Empyrean shall not be forced to enter into other business associate agreements or trading partner agreements with Client's other contracted vendors in order for Empyrean to be able to meet its service obligations to Client under the Agreement unless such additional agreement between Empyrean and Client's other contracted vendor is required by law. The Parties further acknowledge that for purposes of this BAA,Empyrean is an independent contractor and not an agent of Client,and Client has no right to control the conduct of Empyrean in the performance of its services on behalf of Client,nor is Client an agent of Empyrean. 2. Duties of Business Associate.Empyrean agrees that it will: a. Use or disclose Client PHI solely(i)in connection with the performance,management,obligations and administration of the services on behalf of or to benefit Client as set forth in the Agreement,provided that such use or disclosure would not violate HIPAA or IETECH if done by Client, or(ii) as otherwise specifically permitted or required by this BAA,or(iii)as required by law. b. Use appropriate safeguards to prevent the use or disclosure of Client PHI other than as provided for ' by this BAA or as required by law; implement and maintain reasonable and appropriate administrative,technical ' and physical safeguards to protect Client PHI from loss, misuse and unauthorized access, disclosure, alteration and destruction; and implement and maintain administrative, physical and technical safeguards that reasonably and appropriately protect the confidentiality,integrity,and availability of any electronic Client PHI in compliance with the security requirements of HIPAA set forth in 45 C.F.R. § Part 164 and any guidance issued by the Secretary. c. Report to Client any use or disclosure of Client PHI other than as permitted by this BAA within the Professional Services Agreement—Exhibit B Page 16 of 21 following timeframes: (i) Verbally or by email, timely notify Client, but no less than annually, of any discovered Security Incident,and/or no less than within 10 business days of discovery of a Breach,as such terms are defined by HIPAA, At the time of reporting, Empyrean shall provide Client as much information as may be known at the time. A Security Incident or Breach will be treated as discovered as of the first day that such Security Incident or Breach is known or reasonably should have been known by Empyrean in its sole discretion. For purposes of this BAA, a Security Incident shall not include "trivial incidents"that are not successful or do not represent a material threat to the confidentiality, integrity,or availability of Client PHI (including but not limited to basic scans, "pings" or unsuccessful attempts to penetrate computer networks or servers maintained by Business Associate). For such unsuccessful Security Incidents as described,no further notice will be provided. (ii) Thereafter,to the extent known and to the extent not already provided under Section 2(c)(i)above, Empyrean will provide a full written report containing the items provided below to the Client's designated official within 15 business days after discovering the Breach: (A)the nature of the incident and how it occurred; (B)the individuals whose PHI was involved in the Breach,including names and state of residence; (C)a description of the PHI that was improperly used or disclosed; (D)a description of the party or parties who received the non-permitted disclosure; (E) a description of how Empyrean mitigated or will mitigate any harmful effects of the non- permitted use or disclosure; (F)a description of the corrective action taken by Empyrean or to be taken by Empyrean to prevent further non-permitted uses or disclosures; (G)a contact person at Empyrean;and (H) any other information as Client may reasonably request pertaining to such Breach. d. In addition to the full written report provided for above,and to the extent appropriate if requested by Client,Empyrean shall,at its own cost, notify the individuals whose PHI was involved in the Breach caused by Empyrean within 60 days of discovery(or such earlier date,as agreed upon by the Parties),in accordance with HITECH,provided that Client shall be able to approve the content,timing,method and all other aspects of any such notification.Notwithstanding,Empyrean reserves the right to charge reasonable,cost based fees to the Client for mitigation and notification related costs should a Breach be due to the actions or omissions of Client,Plan,or another entity associated with Client. C. Empyrean shall enter into appropriate Sub-Business Associate Agreements ("Sub BAA(s)") containing the same terms with any of its subcontracted vendors who create,receive,maintain or transmit Client PHI and/or perform any of the services outlined in the Agreement that are subject to HIPAA regulations. £ Mitigate, to the extent practicable, any harmful effect that is known to Empyrean of any use or disclosure of Client PHI by Empyrean in violation of the requirements of this BAA,HWAA or HITECH. g. Provide access to Client PH1 maintained in a Designated Record Set at the request of Client, or a, directed by Client,to an Individual or such Individual's delegate as provided to Empyrean by Client as may be necessary for Client to satisfy its obligation under 45 C.F.R. §164.524. Professional Services Agreement Empyrean Benefit Solutions, Page 17 of 21 y 1 h. Make amendments to Client PHI maintained in a Designated Record Set as directed by Client as may be necessary for Client to satisfy its obligation under 45 C.F.R. § 164.526. i. Document and make available disclosures of Client PHI and information relating to the disclosures of Client PHI as would be required for Client to respond to a request by an Individual for an accounting of disclosures of Client PHI in accordance with 45 C.F.R. § 164.528. j. Subject to attorney-client or other legal privileges if applicable,make Empyrean's internal practices,books and records relating to the use and disclosure of Client PHI available to the Secretary of the United States Department of Health and Human Services for purposes of determining Client's group health plan's compliance with HIPAA. k. Empyrean,its agents,employees and subcontractors,are prohibited from directly or indirectly receiving any remuneration in exchange for any Client PHI. 3. Permitted Uses and Disclosure by Empyrean a. Except as otherwise limited in this BAA, Empyrean may use or disclose Client PHI to perform functions, activities, or services for, or on behalf of, Client as specified in the Agreement and in this BAA, provided that such use or disclosure of PHI would not violate HTPAA privacy or security rules, including the Minimum Necessary requirement as stated in 45 C.F.R. § 164.502(b), if done by Client.Empyrean shall not be held liable for the use of Client PHI in a manner instructed by Client as long as such use or disclosure would not violate HIPAA privacy or security rules if done by Client. b. Except as otherwise limited in this BAA,Empyrean may use Client PHI for the proper management and administration of Empyrean or to carry out any legal or regulatory responsibilities placed on Empyrean as a result of the Agreement or this BAA. Empyrean shall not use Client PHI in any manner that Empyrean knows will violate the HIPAA privacy or security rules. c. Except as otherwise specifically limited in this BAA,Empyrean may disclose to third parties Client PHI as necessary to provide services under the Agreement, provided that disclosures are otherwise permitted under HIPAA or under this BAA. d. Except as otherwise limited in this BAA, Empyrean may use Client PHI to provide Data Aggregation services as permitted by 45 C.F.R. § 164.504(e)(2)(i)(B). e. Empyrean may use Client PHI to report violations of law to appropriate Federal and State authorities,consistent with 45 C.F.R. § 164.5020)(1). f. Empyrean may disclose information as may be requested by an Individual through Client under 45 C.F.R. § 164.508. 4. Qbli2ations of Client.Client agrees that it shall: a. Notify Empyrean of any limitation(s)in its notice of privacy practices of Client in accordance with 45 C.F.R. §164.520,to the extent that such limitation may affect Empyrean's use or disclosure of Client PHI. b. Not request that Empyrean use or disclose Client PHI in any manner that would not be permissible under applicable laws. c. Notify Empyrean of any changes in, or revocation of, permission by Individual to use or disclose PHI to the extent that such changes may affect Empyrean's use or disclosure of Client PHI. d. Notify Empyrean of any restriction to the use or disclosure of Client PHI that Client has agreed to in accordance with 45 C.F.R.§ 164.522,to the extent that such restriction may affect Empyrean's use or disclosure of PHI, Professional Services Agreement Empyrean Benefit Solutions, Page 18 of 21 + + e e. In the event that Client cannot or is unwilling to meet the security standards for electronic transmission as required by HIPAA,HITECH,and Empyrean's policies for encrypted transmissions,Client shall hold Empyrean harmless and without liability for any Security Incident or Breach that occurs due to Client's inability to meet these standards as long as Empyrean operated within Client's reasonable directions and/or Empyrean was not at fault. 5. Term and Termination a.This BAA shall be effective as of the date executed by both parties and shall terminate on the later of the (i) expiration or termination of the Agreement, or (ii) when all of the Client PHI provided by Client to Empyrean is destroyed or returned to Client in accordance with paragraph c.below. b.Without Iimiting any right or remedy of either Party provided for in the Agreement,or available under applicable law(including but not limited to HIPAA)or in equity, either Party may terminate this BAA without penalty or recourse to the other Party, if it is determined that the other Party has breached any material term of this BAA, provided that such Party has failed to cure and mitigate such bleach within 30 days (or within a reasonable time thereafter)or in the event the breach is of a type that cannot reasonably be cured and mitigated within 30 days,provided that said Party has commenced taking steps to effectuate a cure and mitigate and then thereafter takes reasonable steps to complete the cure within 90 days)of its receipt of the affected Party's notice of such breach,describing the alleged breach with specificity,or immediately upon notice if cure is not possible. c. Upon termination of this BAA and the Agreement, Empyrean will, if feasible, destroy or return to Client, all Client PHI that Empyrean still maintains in any form and retain no copies of Client PHI, and upon request of Client,Empyrean will certify in writing to CIient that it has so returned or destroyed all such Client PHI. Prior to returning or destroying the Client PHI,Empyrean further agrees to recover any Client PHI in the possession of its subcontractors, if applicable. If such destruction or return is not feasible as to all or some of Client PHI, Empyrean shall extend the protection of this BAA to such Client PHI and limit further uses and disclosures to those purposes that do not make the destruction or return of such Client PHI feasible(such as with encrypted, archived data files). If it is not feasible for Empyrean to obtain from a subcontractor any Client PHI in the possession of the subcontractor,Empyrean shall require the subcontractor to agree in writing to extend any and all protections,limitations and restrictions in this BAA to the subcontractor's use and disclosure of any Client PHI retained after the termination of the BAA, and to limit any further uses and disclosures to the purposes that make the return of the Client PHI unfeasible. 6. Amendment. No changes, amendments or alterations of this BAA shall be effective unless signed by duly authorized representatives of both Parties,except as expressly provided herein. In order to assure that this BAA at all times remains consistent with HIPAA,Empyrean agrees to execute written amendments to this BAA from time to time, upon written notice from Client, if and to the extent, revisions are required to make this BAA consistent with HIPAA. 7. No Rights of Third Parties. This BAA is between Client and Empyrean and shall not be construed,interpreted, or deemed to confer any rights whatsoever to any third party. 8. Counterparts. This BAA may be executed in multiple counterparts,each of which is to be considered an original, and both of which will constitute one and the same agreement. 9. Notices. All notices related to any provision of this BAA shall be mailed to the designated contact of each Party ¢ as provided in the Agreement. + 10. Indemnification and Liability. Any indemnification or liabilities relating to violations of this BAA by either Party(including a Sponsor on behalf of the Plan)shall be addressed to the extent applicable by the Agreement. 11. Interpretation/Construction. Any ambiguity in this BAA shall be resolved to permit Client's group health plan to comply with HIPAA and HITECH. 12. Conflict. In the event of a conflict with the provisions of this BAA and the Agreement; the provisions of this Professional Services Agreement Empyrean Benefit Solutions, Page 19 of 21 BAA shall prevail.This BAA will be governed by and construed in accordance with the laws of the State of Texas to the extent not preempted by the Privacy and Security Rules or other applicable federal law. 13. Applicable Law. The provisions of this BAA shall be construed and administered to, and its validity and enforceability determined under MPAA. To the extent that H1PAA is not applicable in a particular circumstance, the provisions of this BAA shall be construed under and administered to Texas Law. 14.Confidentiality. Except as expressly provided for under H1PAA or this BAA,neither Party will disclose the terms of this BAA to any third party without the written consent of the other Party. 15. Entire Agreement. There are no other agreements or understandings,either oral or written,between the Parties relating to the subject matter hereof,except for the Agreement. _ a a Professional Services Agreement Empyrean Benefit Solutions, Page 20 of 21 EXHIBIT C VERIFICATION OF SIGNATURE AUTHORITY Execution of this Signature Verification Form ("Form") hereby certifies that the following individuals and/or positions 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 frilly 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. i. Name: Richard Wolfe Position: CEO eel Signature 2. Name: Position: Signature 3. 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G \ § : \ \ � � L - � � k / o ® \ ' \ : § k 0 \ (D \ f JE . . \ f £ § \ § / \ . - ƒ \ q / . - � z - / u _ / ■ \ � k ƒ E f E 0 S 7 \ / § 2:' 2 E / w kk / \ . . � L/ / / / STATE'ME,NT Or WORK SAPS IARBORTM Pay or Play LOOkback Measurement Method Technology Platform Cify of Fort Worth Dale: 01/09/2020 Effective Date of first Initial (New Hire) Stability Period: 7/1/2020 Effective ®ate of first Standard (Ongoing) Stability Period: 1/1/2021 a. ' . Re �SAFEHARBORT"' Look-back Measurement Method Technology Platform was designed to calculate the average hours of service for an employee utilizing Customer provided hours data and the Customer specified measuring periods, administrative periods, and stability period schemes as input into the Software,in order for the Customer to'determine which employees are considered to be "full-time"under the Affordable Care Act. Only Variable Hour Employees employed by City of Fort Worth will be tracked in SAFEHARBOR for Federal ACA Pay or Play purposes using the Look-back Measurement Method. SAFEHARBORTm Fee. Ongoing fees will begin the first month in $1,500 per which ongoing Employee and Hours flies month, up to 750 processing commences. tracked employees in SAFEHARSORTM Implementation Empyrean leads implomentafion of $5 000 Services SAFEHARBORTm for the Customer, including one time project management,gathering implementation requirements,system rules configuration and fee testing as specified further in this SOW. Empyrean leads historic data conversion for up to 12 months of employee and hours data, Including error correction and validation as "specified further in this SOW. ° • Implementation Fees are billed effective the month Im lamentation activities be in. i• -+ rn. MR FEHARBORTM Empyrean is responsible for: Implementation • Project Management of SAFEHARBORTm System Requirements, Configuration and Testing t � , « Discovery/Functional Requirements Meetings • Technical/Data Requirements Meetings « System Rules Configuration of Customer provided inputs « SAFEHARBORTM Reports Review/Training Sessions Coordinating Data File Testing - - b Assisting with Customer Acceptance Testing Deliverables Include: • System Rules Document • Completed System Requirements Document Completed Data File layout Specifications Document • System Configuration Q completed Test Plan /Test Results Document SAFIEHARBORTM Data Empyrean is responsible for; Conversion /First Data Load a Project Management to assure successful conversion of historic data into SAFEHARBCRTm database e Performing file Pre-process review and data quality review Monitoring data processing of historic employee data and historic hours data load .. Investigating and,working with Customer,resolving data. and processing errors Performing validation /quality review of data conversion results,includes review meeting with Customer Deliverables include: Historic Data conversion validation reports Empyrean runs Determination; includes review meeting with Customer Final Determination Report/ File provided to Empyrean Ben Admin SAFEHARSORTm Ongoing File ' Empyrean is responsible for: Processing Monitoring data file submission using Customer processing schedule. o Customer is notified if files are not received within i business day of scheduled delivery a Processing employee data file received from Ben Admin and monitoring data processing to completion ® Processing employee hours data file received from City of Fort Worth and monitoring data processing to completion Investigating and working with Customer to resolve processing errors: o Critical Employee{ Hours Data Errors will be written to Error File and will not be processed in current cycle.Corrections must be made at source system and will be processed in the next cycle. o Employee Data Warnings may be processed;work with Customer to correct in next cycle,if needed Deliverables Include: « Em to ee Data Warnings/Critical Errors Report k ' i F Outbound Determination Fife o Determination Calculations are automated in the SAFEHARBOR software. This outbound file is a changes only file and includes: o Initial Determinations o Changes in Determination Status from one period to another SAFEHARBOR will deliver the outbound determination file to Ben Admin to be loaded into the Empyrean Platform (benefits administration system) to trigger benefit enrollment and coverage terminations events based on the determination provided in the outbound determination file from SAFEHARBOR. o Determinations will be sent to ben admin on the agreed upon schedule o Determinations include New Hire and Ongoing Determinations _ n a a • s � a.xl - - -- yl, iw 1`� �'�"�i,•.yam.. � x 1y �2 � •. ' �_ . .N;"c i' , ' wn'ytibfeY _ rG a Li xo -ram kl hY e SAFENARBORM Customer is responsible for: Implementation . Providing requirements, including: o New hire and ongoing Measurement, Administrative, and Stability Periods o Compliance Groups o Administrative user security access o Hours-of-service codes • identifying representative population to test that system is producing expected results. Working with Empyrean and Third-Party Vendors,resolves employee data errors. i Reviewing system configuration,test results and reports to ensure system is producing expected results. o Customer reviews and signs-off on SAFEHARBORTM System Requirements and Data File Layout Specifications documents prior to first determination being run. SAFEHARBORrM Data Customer is responsible for: Conversion/First Data Load • Complete.and accurate employee data based on the file requirements agreed upon during implementation and made available in Ben Admin conversion files. • Complete and accurate hours data file in the standard SAFEHARBOR'm file format based on the file requirements agreed upon during implementation. • Delivery of employee data and historic flours files per ' project timelin6. Empyrean will assist in developing an appropriate timeline during implementation and will be referred-to as the implementation project plan. a Timely review of processing results and corresponding data corrections as need, •' Customer reviews and signs-off on the completeness and accuracy of the historic data conversion results in " SAFEHARBORTM. SAFEHARBORTM Ongoing File Customer is responsible for; Processing d Employee Hours file will be delivered to Empyrean in the standard SAFEHARBORTm layout per an established schedule. • Employee Hours File will include all required hours data, effective dated per the requirements. • Customer will correct employee data errors in the source system and will assure corrected data is transmitted in the next processing cycle. N ' p 0 1 �T V Customer's exclusive remedy for liability associated with Empyrean's provision of SAFEHARBOR Services,as specified in this Statement of Work,including any work completed by an Empyrean subcontractor, shall be (1) the reprocessing of the applicable service .(e.g., information reporting services contemplated herein); or f2) in the event that reprocessing by Empyrean or its subcontractor is infeasible, a refund of the amount paid to Empyrean by Customer for the SAFEHARBOR Services under the this Statement of Work for the twelve (12) months immediately preceding the month in which the claim or claims arise. For purposes of this liability remedy provision, liability will be damages or losses of any kind incurred by Customer relating to its obligation to track and report its employees' 30-hour full-time status for ACA compliance. Conflicting liability terms in any Master Services Agreement, Statement of Work, and/or addendum (or any primary contract, statement of work and/or addendum for benefits administration related services) between Empyrean and Customer are superseded in order to give effect to this exclusive liability remedy. This SAFEHARBOR Statement of Work is hereby incorporated by reference into the applicable Agreement that includes the Master Services Agreement, Business Associate Agreement, and Statement of Work for ongoing benefits administration Services for other primary services agreement for benefits administration related services) between Customer and Empyrean. In no event shall Empyrean be liable to Customer for fines, penalties, or other sums imposed on Customer for HI'PAA violations that are the responsibility of Customer (or Customer's plans) ire its (or their) capacity as a covered entity, or that are not part of any fine,penalty,or other sum directly imposed for an Empyrean breach of PHI,-even if discovered by such third party as a result of an_Empyrean breach of PHI. IN WITNESS WHEREOF, the Parties have caused their duly authorized representatives to execute this Statement of Work as of the SOW Effective Date. Client: o.1,,v Signature (Date) Printed Name,Title Empyrean: 3/27/2020 Richard Waite, CEO a {Date) Empyrean Benefit Solutions,fnc.