HomeMy WebLinkAboutContract 58311 CSC No. 58311
AMERICAN SPECIALTY HEALTH FITNESS,INC. A
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OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
National Fitness Center Services Agreement-MC Page 1 of 32 01/01/2021
Article I DEFINITIONS 5
1.01 Agreement 5
1.02 ASH Client 5
1.03 ASHLink. The 5
1.04 Benefit Year. 6
1.05 Contracted Center 6
1.06 Effective Date 6
1.07 Fitness Center Participating Location 6
1.08 Member(s) 6
1.09 Member Eligibility/Benefits 6
1.10 Member Payments 6
1.11 Member Termination Report 6
1.12 Non-Covered Services 6
1.13 Party(ies) 6
1.14 Program Compensation Rate 4& 6
1.15 Services 6
1.16 Standard Fitness Center Membership 6
1.17 Visit IL 6
Article 2 ASH FITNESS' RESPONSIBILITIES 7
2.01 Prepare and Maintain Program Manual 7
2.02 Distribution of Revised Agreement,Attachments,Amendments,and Program Manual 7
2.03 Records Management 7
2.04 Maintain Eligibility AP 7
2.05 Communication Regarding Participation of Fitness Center 7
2.06 Deletion of Fitness Center Participating Location from Network Directories 7
2.07 ASH Fitness' Payment to Fitness Center 7
Article 3 FITNESS CENTER'S RESPONSIBILITIES 8
3.01 Business License(s)and Comply with Federal and State Law 8
3.02 Comply with Program Manual 8
3.03 Comply with Quality Management Program 8
3.04 Compliance with Medicare and/or Medicaid Requirements. 8
3.05 Immediate Notification by Fitness Center of Certain Occurrences 8
3.06 Notification of Change in Any Information 8
3.07 Non-Interference with Property and Contract Rights 9
3.08 Election to Participate in all Product Offerings 9
3.09 Provision of Member Services 9
3.09.1 Standard Fitness Center Membership. 9
3.09.2 Conversion of Pre-Established Membership. 9
3.09.3 Fitness Center Staff. 9
3.09.4 Offering of non-Covered Services and Notification to Members of Financial Responsibility for Member
Payments for Non-Covered Services 9
3.09.5 Member Billing. 10
3.09.6 Non Discrimination 10
3.10 Verification of Member Eligibility and Services 10
3.11 Program Compensation 10
3.12 Billing Report Submission 10
3.13 Reimbursement Adjustments 11
3.14 Fitness Center's Participating Locations 11
3.15 Liability Insurance Limits 11
3.16 Fitness Center Removal from Provision of Program Services to Members by ASH Clients. 11
Article 4 CORRECTIVE ACTION PLANS 11
Article 5 TERM 12
Article 6 TERMINATION 12
6.01 Termination of This Agreement with Cause with Notice 12
6.02 ASH Fitness Immediate Termination of This Agreement for Cause with Notice 12
6.03 Fitness Center Program Participation Termination. 12
6.04 Fitness Center Appeal of Termination 12
6.05 Effect of Termination 12
6.06 Survival of Certain Contractual Provisions after Termination 12
National Fitness Center Services Agreement-MC Page 2 of 32 01/01/2021
6.07 Fitness Center Responsibility during Termination Notice Period 13
6.08 Fitness Center Responsibilities after Termination of Program,Location or Agreement 13
Article 7 HOLD HARMLESS 13
Article 8 COMMUNICATION OF RELATIONSHIP WITH ASH FITNESS AND ASH CLIENTS 13
Article 9 RECORDS AND DATA COLLECTION 14
9.01 Maintenance of Records 14
9.02 Access to Facility and Records 14
9.03 Confidential Member Information 14
Article 10 PROPRIETARY INFORMATION 15
Article 11 TRADEMARKS 16
11.01 Use of Names and Marks. 16
11.02 Injunctive Relief. 16
Article 12 ASSIGNMENT AND CHANGE OF OWNERSM 16
Article 13 SUBCONTRACTS 4V 16
Article 14 FORCE MAJEURE 17
Article 15 INDEPENDENT CONTRACTORS 17
Article 16 GOVERNING LAW 17
Article 17 SEVERABILITY 17
Article 18 DISPUTES BETWEEN FITNESS CENTER AND MEMBERS 18
Article 19 DISPUTES BETWEEN FITNESS CENTER AND ASH FITNESS 18
Article 20 DISPUTES BETWEEN FITNESS CENTER AND ASH CLIENT 19
Article 21 NOTICES 19
Article 22 CAPTIONS 19
Article 23 NO THIRD PARTY BENEFICIARIES 19
Article 24 AMENDMENTS 19
Article 25 INSOLVENCY OF ASH FITNESS; PROTECTION OF INTERESTS OF FITNESS
CENTER,MEMBERS,AND ASH CLIENTS 20
Article 26 ENTIRE AGREEMENT 20
Article 27 EFFECTIVE DATE OF AGREEMENT 20
ATTACHMENTA -SILVER&FIT'BASICATTACHMENT 22
1.0 DEFINITIONS 22
1.01 Silver&Fit Program 22
1.02 Silver&Fit Basic Fitness Center. 22
2.0 FITNESS CENTER OBLIGATIONS 22
2.01 Free Trial Obligation. 22
2.02 Fitness Center Listing Information. 22
ATTACHMENT B—Silver&Fit Full Attachment 23
1.0 DEFINITIONS 23
1.01 Designated Silver&Fit Exercise Classes 23
1.02 Silver&Fit Program 23
1.03 Silver&Fit Full Fitness Center. 23
1.04 Quarterly Social Activities 23
2. FITNESS CENTER OBLIGATIONS. 23
2.01 Designated Silver&Fit Exercise Classes 23
2.02 Free Trial Obligation 24
2.03 Silver&Fit Exercise Classes Health and Safety Guidelines 24
National Fitness Center Services Agreement-MC Page 3 of 32 01/01/2021
2.04 Fitness Center Listing Information 24
3. ASH FITNESS OBLIGATIONS. 24
3.01 FitnessEngagement.com 24
3.02 Silver&Fit Online Fitness Center Listing 24
ATTACHMENT C-ACTIVE&FIT*ATTACHMENT 25
1.0 DEFINITIONS 25
1.01 Active&Fit Program 25
2.0 FITNESS CENTER OBLIGATIONS 25
2.01 Free Trial Obligation. 25
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ATTACHMENT D-INTENTIONALLYLEFT BLANK 26
ATTACHMENT E-Intentionally Left Blank 27
ATTACHMENT F-Intentionally Left Blank — 28
ATTACHMENT G-MEDICARE ADVANTAGE and Medicaid ADDENDUM 29
ATTACHMENT H-PROGRAM COMPENSATION 32
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National Fitness Center Services Agreement-MC Page 4 of 32 01/01/2021
AMERICAN SPECIALTY HEALTH FITNESS,INC.
FITNESS CENTER SERVICES AGREEMENT
THIS FITNESS CENTER SERVICES AGREEMENT, ("this Agreement") is entered into between American
Specialty Health Fitness, Inc., a Delaware corporation("ASH Fitness"),and the fitness center whose name and other
identifying information appear on the signature page herein ("Fitness Center"). This Agreement will be effective as
of the Effective Date specified in Article 27 of this Agreement. Please read this Agreement carefully. This
Agreement requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class
actions.
This Agreement supersedes and replaces any prior Fitness Center Services Agreements entered into between ASH
Fitness and Fitness Center.
RECITALS
WHEREAS,insurers,trust funds,health care service plans,health maintenance organizations, employer groups and
other groups (collectively referred to as "ASH Clients" and further defined below) have entered into arrangements
with ASH Fitness for the provision of Services to their Members(as defined below in Section 1.08); �
WHEREAS,ASH Fitness wishes to arrange for and facilitate the provision of Services to Members;
WHEREAS, Fitness Center has all necessary licenses and authorizations to operate in its location(s) in the State(s)
in which it operates and wishes to contract with ASH Fitness for the provision of Services to Members;
NOW,THEREFORE,ASH Fitness and Fitness Center agree as follows:
ARTICLE 1 DEFINITIONS. V
For purposes of this Agreement and in addition to the terms elsewliere O-fined herein,the following terms shall have
the meanings indicated: At
1.01 Agreement. Agreement is this Fitness Center Services Agreement between Fitness Center and ASH Fitness,
the attachments and exhibits listed below,the Program Manual and any amendments to such documents.
Attachment A: Silver&Fit®Basic Attachment
Attachment B: Silver&Fit®Full Attachment
Attachment C: Active&Fit®Attachment
Attachment D: Intentionally Left Blank
Attachment E: Intentionally Left Blank
Attachment F: Intentionally Left Blank
Attachment G: Medicare Addendum
Attachment H: Program Compensation Attachment
The attachments and exhibits listed above and the Program Manual are hereby incorporated by reference.
However, Fitness Center's obligations will be dependent upon its agreement to participate in the programs
described in Attachment A through Attachment F as indicated on the signatory page of this Agreement.
1.02 ASH Client. ASH Client is a health care service plan, health maintenance organization, insurer, employer
group,trust fund, third party administrator, or other person or entity who contracts with ASH Fitness or an
ASH Fitness' affiliate to arrange for the provision of Services. ASH Clients will be listed on the ASH Client
List which is provided to Fitness Center by ASH Fitness.
1.03 ASHLink. The ASHLink® system as described in the Program Manual is a proprietary software system
developed by an ASH Fitness affiliate and utilized by ASH Fitness to support the secure and confidential
electronic distribution of information with Fitness Center via the Internet.
National Fitness Center Services Agreement-MC Page 5 of 32 01/01/2021
1.04 Benefit Year. Benefit Year is the twelve (12)month period specified in the ASH Client List.
1.05 Contracted Center. Contracted Center is a fitness center that has contracted with ASH Fitness.
1.06 Effective Date. The Effective Date is the date this Agreement becomes operative,as specified in Article 27
of this Agreement.
1.07 Fitness Center Participating Location. A Fitness Center Participating Location is the Fitness Center
location where Services will actually be performed. For ease of reference,Fitness Center and Fitness Center
Participating Location shall be used interchangeably for a Fitness Center with only one participating location.
1.08 Member(s). Member(s) is/are individual(s) who is/are eligible to receive Services by meeting all the
eligibility requirements for participation in a program.
1.09 Member Eligibility/Benefits. Member Eligibility/Benefits is information maintained by ASH Fitness or
one of its affiliates pertaining to each Member regarding his or her eligibility, including initial date of
eligibility,term of membership and benefits.
1.10 Member Payments. Member Payments are charges which are the direct financial responsibility of the
Member and are paid directly to Fitness for any service which is a Non-Covered Service under this
Agreement.
1.11 Member Termination Report. Member Termination Report as described in the program manual is a report
which lists Members who have terminated their Membership at the Fitness Center and/or are no longer
eligible for participation under the program.
1.12 Non-Covered Services. Non-Covered Services are all services other than a Standard Fitness Center
Membership and any other program components as clearly laid out in each attachment and as applicable to
the Member's benefit. All Non-Covered Services are ineligible for compensation by ASH Fitness and are
the direct responsibility of the Member.4"
1.13 Party ies . Party(ies)is/are the individual(s)or entity(ies)that execute this Agreement.
1.14 Program Compensation Rate. The Program Compensation Rate is the amount ASH Fitness will pay
Fitness Center for each Member who has signed a membership agreement with Fitness Center and has had
at least 1 Visit in the month that Fitness Center is seeking compensation for. The Program Compensation
Rate is set forth in Attachment H for each program that applies to this Agreement.
1.15 Services. Services are those collective services which fall under this Agreement and its Attachments A
through Attachment F..Ir
1.16 Standard Fitness Center Membership. A Standard Fitness Center Membership provides Member with at
least the following services: access to a Fitness Center Participating Location during normal facility hours
of operation for the use of cardiovascular exercise equipment (e.g. treadmills, exercise bicycles, "elliptical
machines", etc.), strength or resistance training equipment(e.g. selectorized equipment, free weights, etc.),
and use of locker room and shower facilities. It also includes instructor-led classes (such as group fitness
classes,Pilates,group cycling,yoga,etc.)which do not require a separate fee to be paid to Fitness Center for
an individual class or set of classes, but are routinely included for the general membership as part of the
general monthly fee. The Standard Fitness Center Membership does not include instructor-led classes,
personal training and other amenities for which the Fitness Center routinely charges a separate fee.
1.17 Visit. Unless otherwise specified in a program attachment, a Visit is where a Member utilizes the Fitness
Center Participating Location for exercise. A Visit does not include virtual video workout sessions or
individual video exercises.
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ARTICLE 2 ASH FITNESS' RESPONSIBILITIES.
2.01 Prepare and Maintain Program Manual. ASH Fitness shall prepare and maintain a program manual
setting forth ASH Fitness' policies, processes, standards and procedures regarding Fitness Center's
participation in any ASH Fitness' fitness network("Program Manual").
2.02 Distribution of Revised Agreement, Attachments, Amendments, and Program Manual. ASH Fitness
shall prepare and distribute any updated Agreements, attachments and exhibits, Member Termination
Reports,ASH Client Lists, amendments and/or Program Manual, which may be revised by ASH Fitness in
accordance with Article 24 of this Agreement. ASH Fitness may distribute all materials directly to Fitness
Center and to each Fitness Center Participating Location, where such information pertains to the Fitness
Center Participating Location.
2.03 Records Management. ASH Fitness and its affiliates shall develop, update and maintain policies and
procedures that comply with applicable statutory and regulatory requirements for the secure and confidential
storage,retention,retrieval and destruction of all records pertaining to its business operations,whether these
records are in paper or electronic form.
2.04 Maintain Eligibility. ASH Fitness or its affiliates shall provide Fitness Center with services related to
Member Eligibility verification for Services to be provided by Fitness Center. ASH Fitness makes no
representation or guarantees concerning the number of Members,if any,that will access Fitness Center under
this Agreement.
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2.05 Communication Regarding Participation of Fitness Center. ASH Fitness and its affiliates shall
communicate the participation of Fitness Center in ASH Fitness or its affiliates' programs to existing and
prospective ASH Clients in various forms, including but not limited to ASH Client proposals,ASH Fitness
or ASH Client network directories and the applicable websites accessed by Members. Such communication
may include information such as Fitness Center's name and logo, address,telephone number, and available
services. ASH Fitness shall assist Members to select a Contracted Facility under the Member's program. In
addition,ASH Fitness shall,within sixty(60)days of the effective date of a location,notify ASH Clients of
the addition of a Fitness Center Participating Location where that location may perform Services for ASH
Client.
2.06 Deletion of Fitness Center Participating Location from Network Directories. ASH Fitness will remove
Fitness Center information from the online directory as of the effective date of Fitness Center Participating
Location's resignation or termination of this Agreement.
2.07 ASH Fitness' Payment to Fitness Center.ASH Fitness shall compensate Fitness Center in accordance with
the Program Compensation Rates specified in Attachment H under which Fitness Center is participating
within thirty(30)days of receipt of a billing report for Services provided to Members.
Fitness Center and ASH Fitness agree that a program of equal to best pricing and equal to best reimbursement
model supports fair and competitive pricing and that fair and competitive pricing fosters program
competition,enhancement and innovation,and reduces costs. The parties agree that Fitness Center will offer
to ASH Fitness Equal To Or Best Pricing and an Equal To Or Best Reimbursement model for Subsidized
Fitness Programs. For the purposes of this Agreement and any Attachments, Subsidized Fitness Benefit
Programs means any of programs by which an eligible individual receives membership with and/or access to
Fitness Center in connection with Silver&Fit and Active&Fit(collectively"Fitness Benefit Programs"). Any
ASH Fitness consumer-direct purchase program is not included in this definition. "Equal To Or Best Pricing"
means that Fitness Center agrees that for each contract it enters with any third party(s) offering Subsidized
Fitness Benefit Programs, the rates that Fitness Center will charge such third party(s) will not be less than
the rate that Fitness Center charges ASH Fitness under this contract. Equal To Or Best Reimbursement
Model means that Fitness Center will not utilize any reimbursement model that permits a third party offering
Subsidized Fitness Benefit Programs to reimburse Fitness Center for fitness services at a lower rate than the
rate that Fitness Center is charging ASH Fitness under this contract,regardless of the reimbursement model.
National Fitness Center Services Agreement-MC Page 7 of 32 01/01/2021
Nothing herein shall prevent Fitness Center and a third parry offering Subsidized Fitness Benefit Programs
from agreeing to a rate lower than the rate Fitness Center charges ASH Fitness pursuant to this contract at
the time of the agreement, or from agreeing to a reimbursement model that permits the third party to
reimburse Fitness Center for fitness services at a rate lower than the rate Fitness Center is charging ASH
Fitness under this contract at the time of the agreement,regardless of reimbursement model. If Fitness Center
contracts with a third party to offer lower pricing or a better reimbursement model than which it has with
ASH Fitness,Fitness Center will provide notice to ASH Fitness in advance of the effective date of such third
party agreement and,upon ASH Fitness' written notice stating that ASH Fitness wishes to have the rates that
Fitness Center charges ASH Fitness reduced to reflect the better pricing/reimbursement model offered to the
third party ("Pricing Notice"), Fitness Center shall automatically provide the same lower pricing and/or the
better reimbursement model to ASH Fitness as of the effective date of the third parry contract. Upon ASH
Fitness' delivery to Fitness Center of the Pricing Notice, this agreement will be deemed automatically
amended to incorporate the lower rates and/or better reimbursement model with all other contract terms
remaining unchanged. The parties agree that the existence of Equal To Or Best Pricing and Reimbursement
Models will be subject to audits by an independent third parry agreed upon by ASH Fitness and Fitness
Center. If Fitness Center does not provide the advance notice required by this paragraph,ASH Fitness shall
have the right to recover the difference between the lower price and/or reimbursement model and ASH
Fitness' current pricing and reimbursement model as of the effective date of the lower price and/or
reimbursement model by offsetting future payments to Fitness Center until such time the recovery is
complete. Such remedy does not exclude ASH Fitness from seeking other remedies to which it may be
entitled.
ARTICLE 3 FITNESS CENTER'S RESPONSIBILITIES.
3.01 Business License(s) and Comply with Federal and State Law. Fitness Center shall maintain and
demonstrate upon request by ASH Fitness that Fitness Center has appropriate business licenses for its
operations at each of the Fitness Center Participating Locations and meets all federal and state regulations
applicable to such operations.
3.02 Comply with Program Manual. Fitness Center shall comply fully with the Program Manual as described
in Section 2.01. 't 4J
3.03 Comply with Quality Management Program. Fitness Center shall comply with ASH Fitness' quality
management program and shall cooperate with ASH Fitness in ASH Fitness' administration of its grievance
procedures, which can be found in the Program Manual, including procedures to resolve complaints or
grievances filed by Members with ASH Fitness as they pertain to Fitness Center and its responsibilities under
this Agreement.
3.04 Compliance with Medicare and/or Medicaid Requirements. Where Fitness Center is providing Services
to Members enrolled in an ASH Client's Medicare Advantage plan and/or Medicaid Managed Care plans,
Fitness Center shall comply with the provisions outlined in Attachment G to this Agreement.
3.05 Immediate Notification by Fitness Center of Certain Occurrences. Fitness Center shall notify ASH
Fitness in writing by overnight mail service, email, facsimile or other means of notification made available
to Fitness Center by ASH Fitness within forty-eight (48) hours of the occurrence of. i) the commencement
of any voluntary or involuntary bankruptcy proceedings by or against Fitness Center or any similar
proceedings;11)any lapse of general and/or professional liability insurance maintained by Fitness Center;111)
the filing of criminal charges against Fitness Center's owners, directors, management or staff that directly
interact with Members that Fitness Center's owner(s) or manager(s) know(s), or reasonably should have
known ;iv)a change in Fitness Center's ownership and/or management;(v)any change to,including but not
limited to the loss or potential loss of,its business license;and(vi) any potential non-compliance or suspected
non-compliance with applicable federal or state law or regulation relevant to this Agreement.
3.06 Notification of Change in Any Information. Fitness Center shall notify ASH Fitness at least sixty (60)
days prior to any change in Fitness Center or Fitness Center Participating Location's physical address,Fitness
Center or Fitness Center Participating Location's mailing address, telephone number, email address, office
hours, taxpayer identification number, or any other information listed in the Network Application. Where
National Fitness Center Services Agreement-MC Page 8 of 32 01/01/2021
sixty (60) days prior notice is not possible, Fitness Center shall notify ASH Fitness as soon as possible of
such changes.
3.07 Non-Interference with Property and Contract Rights. During the term of this Agreement and for one(1)
year following the date of its termination, Fitness Center agrees that Fitness Center shall not interfere with
ASH Fitness or an ASH Fitness affiliate's property or contract rights with any ASH Client or Member. This
includes,but is not limited to,advising any Member to dis-enroll from any Services,advising any party who
has contracted with ASH Fitness or an ASH Fitness Affiliate to terminate, cancel or decline renewal of its
contract, and/or solicit any Member to enroll for the provision of similar services offered by any other firm
administering fitness benefit programs, health care service plan, health maintenance organization, health
insurer,preferred provider organization or any other similar organization.
If Fitness Center violates this Section,Fitness Center acknowledges that it will be responsible for paying any
and all actual damages incurred by ASH Fitness or any ASH Client as a result of that violation and may be
liable for other costs, expenses, damages, claims or liabilities; and, if money damages are insufficient to
compensate ASH Fitness or ASH Client for the violation of this Section,Fitness Center may be subject to an
injunction prohibiting the activity which constitutes a violation of this Section and/or other equitable relief.
Nothing in this Section shall affect any of ASH Fitness'other rights under this Agreement,at law or in equity.
Nothing in this Section shall prohibit Fitness Center from maintaining a direct relationship with Member that
is no longer enrolled in a program with ASH Fitness or its affiliates due to Member dis-enrollment or
termination of this Agreement. A,
3.08 Election to Participate in all Product Offerings. Fitness Center may elect to participate in any program
specified in Attachment A through Attachment F and indicates in Article 28 which programs it wishes to
participate in. Fitness Center is not obligated to participate in all programs but must participate in at least
one program at all times while this Agreement is in effect. Anytime after the Effective Date of the Agreement
Fitness Center may choose to expand the programs it participates in. However, after the Effective Date
Fitness Center may only terminate participation in a specific program,pursuant to Article 6.
3.09 Provision of Member Services. Fitness Center responsibilities for the provision of Member Services are
outlined in this Section 3.09. 't 4K
3.09.1 Standard Fitness Center Membership. Fitness Center shall provide Members with a Standard Fitness
Center Membership and any other services as required by the applicable program attachments. The
Standard Fitness Center Membership shall include,at no cost to the Member,an orientation session
to familiarize Members with the Fitness Center and its equipment.
3.09.2 Conversion of Pre-Established Membership. Fitness Center agrees to assist any Member that has a
previously established membership with Fitness Center and the Member becomes eligible for a
program under this Agreement. Fitness Center will freeze the Member's previously established
Fitness Center membership, or terminate the membership without any penalty to the member and
accept the Program Compensation rate as payment in full for the Standard Fitness Center
Membership on behalf of the Member while they are eligible for ASH Program Services. Where a
Member is no longer eligible for ASH Program Services and the membership was frozen, Fitness
Center shall re-activate the Member's frozen membership subject to the original terms and conditions
of the previously established membership. Fitness Center shall not charge Member any activation
fees or penalties for the re-activation and such membership shall be reinstated for the period of time
that was remaining on the membership at the time it was frozen.
3.09.3 Fitness Center Staff. Fitness Center agrees to support Services by training one ormore Fitness Center
employee(s) in the ASH Fitness programs to support Member questions and enrollment into the
applicable Services as described in this Agreement and its Attachments during normal business
hours.
3.09.4 Offering of non-Covered Services and Notification to Members of Financial Responsibili . for
Member Payments for Non-Covered Services. Fitness Center may upgrade or sell Members
additional products or services not covered under this Agreement or any applicable program
National Fitness Center Services Agreement-MC Page 9 of 32 01/01/2021
attachment but only if Fitness Center informs Members in advance and in writing that such products
and services are Non-Covered Services, are the Member's financial responsibility, and are
completely voluntary on the part of the Member. Fitness Center shall collect appropriate Member
Payments as that term is defined in Section 1.10, at the time of service and shall bill Members
according to the procedures described in the Program Manual. Where a Member upgrades their
Standard Fitness Center Membership, Fitness Center agrees that the upgraded membership will be
equal to or less than the pricing offered to the general public ("Upgraded Membership Price") and
the cost to the Member shall be the Upgraded Membership Price minus the Fitness Center's standard
fee for a basic membership(this is not the Program Compensation Rate but the standard fee charged
by the Fitness Center). Fitness Center agrees to refund any amounts paid by a Member that the
Fitness Center collects in a manner not consistent with this Section.
3.09.5 Member Billing. Nothing in this Agreement shall preclude Fitness Center from charging Member
for Services rendered, where Member is determined to not be eligible, including retroactive
determinations,for a program under this Agreement and where Fitness Center complied with Section
3.10. Any such charges shall be consistent with Fitness Center's lowest standard membership dues.
In addition,as Section 3.09.4 details,Fitness Center may charge a Member forNon-Covered Services
where Member has been informed,in writing,prior to the provision of the Non-Covered Services.
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3.09.6 Non Discrimination. Fitness Center shall not illegally discriminate against Member for any reason,
including but not limited to race,ethnicity,national origin,religion,gender, age,mental or physical
disability,health status, payment experience,medical history, genetic information, gender identity,
veteran status, evidence of insurability or geographic location within the service area or source or
amount of compensation. Fitness Center shall offer Services to a Member covered by ASH Fitness
or one of its affiliates in the same manner, in accordance with the same standards, and within the
same time availability as services offered to members who are not covered by ASH Fitness or its
affiliates. WWf v
3.10 Verification of Member Eligibility and Services. Unless otherwise specified in a program attachment,
Fitness Center shall verify Member Eligibility and applicable Services with ASH Fitness at the time of a
Member's first attempt to utilize Fitness Center Participating Location within a Benefit Year. Fitness Center
shall verify the Member's eligibility with ASH Fitness by using the member's fitness card/welcome letter or
by collecting the member's first name, last name and day/month of birth. Fitness Center may contact ASH
Fitness via ASHLink or call customer service to verify eligibility. Member's current fitness card/welcome
letter is not a guarantee of current eligibility and Fitness Center must verify the Member's eligibility with
ASH Fitness upon the Member's first Visit to the Fitness Center Participating Location.
3.11 Program Compensation. Fitness Center shall accept Program Compensation Rates, as specified in
Attachment H as payment in full for the Fitness Center Visits and Services provided pursuant to this
Agreement. Fitness Center shall not charge the Member an initiation fee, enrollment fees, processing fee,
monthly membership fees and/or any other administrative fees for the Standard Fitness Center Membership.
Fitness Center shall be responsible for any and all sales, use or other taxes which may be imposed on the
compensation paid to Fitness Center by ASH Fitness or any fees for Non-Covered Services collected from a
Member. The number of Visits compensated in a month shall not limit the number of Visits a Member may
make to Fitness Center in a month. Members must have unlimited access and their visits may exceed the
Visits compensated per month as specified in Attachment H. A Member may make multiple Visits to Fitness
Center over the course of one day,however,Fitness Center is only entitled to receive compensation for one
(1) of those Visits. Program services will be compensated by ASH Fitness up to the maximum number of
sessions and the maximum amount specified in Attachment H.
3.12 Billing Report Submission. Unless otherwise specified in a program attachment,Fitness Center will submit
a billing report each month and shall provide supporting information to ASH Fitness that identifies each Visit
at a Fitness Center Participating Location, the Member name, Member's Fitness Identification number
program abbreviation,Member month and day of birth and the dates of the Visit. Total number of visits will
not be accepted for reimbursement. Such information should be submitted electronically via ASHLink unless
an alternate method has been agreed to by ASH Fitness. Any reports not received via ASHLink will not be
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accepted for payment. ASH Fitness will reject any reports that are not submitted in the required format
and/or do not include the required fields listed in this section. Only actual Visits to the Fitness Center
Participating Location should be submitted. Virtual or streamed video workout sessions or individual video
exercises by eligible Members are not permitted to be billed for reimbursement and should not be submitted
in the billing report. Including such activities on the billing report may be considered by ASH Fitness as
fraudulent billing. ASH Fitness reserves the right to perform random audits to verify accuracy of billing
reports and may also contact members to confirm Visits made to a Fitness Center Participating Location.
Billing reports received over ninety(90)days after the date of service will not be approved for payment due
to late submission. Fitness Center shall waive all charges against Member,ASH Fitness and/or ASH Client
related to a billing report received by ASH Fitness more than ninety (90)days after the date of service.
3.13 Reimbursement Adjustments. ASH Fitness may be required to make an adjustment to a reimbursement
previously paid by ASH Fitness in order to correct an over or under payment as a result of(1) corrected
information received by ASH Fitness,or(2)incorrect determination of benefit or(3)an incorrect calculation
of payment amounts. The process for any reimbursement adjustment shall be set forth in the Program
Manual.
3.14 Fitness Center's Participating Locations. Where Fitness Center has more than one location operating
under the terms of this Agreement,Fitness Center shall have additional obligations,including but not limited
to: Agreement notification,informing participating locations,and members'use of multiple locations. These
additional obligations shall be described in the Program Manual. Fitness Center shall require each Fitness
Center Participating Location to comply with the requirements of this Agreement and any applicable state or
federal law or regulations, including but not limited to, the federal False Claims Act (31 U.S.C. §§ 3729-
3733). Any incidents of non-compliance should be reported immediately to ASH Fitness upon discovery.
3.15 Liability Insurance Limits. Fitness Center shall maintain professional liability insurance, comprehensive
general liability insurance and/or any other insurance policies, including but not limited to Workers'
Compensation,in accordance with ASH Fitness' liability insurance requirements in this Agreement. Fitness
Center shall notify ASH Fitness within five (5)days of any material change to any or all insurance policies,
which shall include,but not be limited to,a reduction in a policy amount or cancellation or non-renewal of a
policy. All such policies required under this section shall be primary to any insurance available to ASH
Fitness. This insurance requirement will be required for each of the Fitness Center Participating Locations.
Fitness Center shall maintain general liability insurance in the amount of one million dollars ($1,000,000)
for each occurrence and one million dollars ($1,000,000) in the aggregate, and professional liability
insurance in the amount of one million dollars($1,000,000)per claim and one million dollars($1,000,000)
in the aggregate per year for each Fitness Center Participating Location. ASH Fitness recognizes that the
Fitness Center is a municipality and as such may be self-funded under provisions of applicable state statutes
and local ordinances.
3.16 Fitness Center Removal from Provision of Program Services to Members by ASH Clients. Fitness
Center acknowledges that an ASH Client may,in its sole discretion,request ASH Fitness to remove or restrict
Fitness Center from providing Member Services to ASH Client's Members and if necessary impose sanctions
on Fitness Center.
ARTICLE 4 CORRECTIVE ACTION PLANS
Corrective Action Plans. ASH Fitness shall have the ability to evaluate Fitness Center's participation and
performance in accordance with the terms of this Agreement and fitness industry business practices. If ASH Fitness
finds that Fitness Center is not performing in accordance with the terms of this agreement,ASH Fitness may issue a
Corrective Action Plan (CAP) to Fitness Center as more fully described in the Program Manual. Fitness Center
acknowledges that a frequent or repeated lack of compliance with a program requirement may be considered a pattern
of performance that is unacceptable to ASH Fitness and may consider this a material breach of the Agreement giving
rise to the right to terminate the Agreement for cause pursuant to Section 6.02.
National Fitness Center Services Agreement-MC Page 11 of 32 01/01/2021
ARTICLE 5 TERM.
The initial term of this Agreement shall be from the Effective Date specified in Article 28 of this Agreement through
and including December 31"of the current year subject to the termination provisions set forth in Article 6. After the
initial term,this Agreement shall automatically renew for one(1)year on each successive January I",unless a)either
Party provides the other Party with written notice at least one hundred twenty(120)days prior to the renewal date of
its intention not to renew this Agreement,or b)prior to such renewal,the Agreement is terminated pursuant to Article
6.
ARTICLE 6 TERMINATION.
6.01 Termination of This Agreement with Cause with Notice. Notwithstanding any other provision in this
Agreement,either Party may terminate this Agreement with cause for the other Parry's breach of any material
term, covenant or condition and subsequent failure to cure such breach. The Party asserting cause for
termination of this Agreement("Terminating Party") shall provide written notice of termination to the other
Party ("Receiving Party"). The notice of termination shall specify the breach or deficiency underlying the
cause for termination. Receiving Party shall have thirty(30)calendar days from the receipt of such notice to
cure the breach or deficiency to the satisfaction of the Terminating Party. If Receiving Party fails to cure the
breach or deficiency,this Agreement shall terminate upon written notice from the Terminating Party. The
termination date shall be the date the Receiving Party receives such notice or such other date as may be
specified in the notice.
6.02 ASH Fitness Immediate Termination of This Agreement for Cause with Notice. ASH Fitness may
terminate this Agreement, or a Fitness Center Participating Location(s) participation, immediately upon
written notice by ASH Fitness to Fitness Center upon any of the following occurrences:
a) A determination that services rendered to a Member by Fitness Center in conjunction with this
Agreement do not meet the recognized fitness industry standards adopted by ASH Fitness and/or
potentially place a Member at risk;
b) Any material misrepresentation, falsification or failure to provide accurate information to ASH
Fitness,ASH Client,or a Member by Fitness Center or Fitness Center's staff,agent or representative
in connection with this Agreement;
c) The filing and/or conviction of any criminal charges against Fitness Center's directors, officers,
owners or employees;
d) The termination of any contractual relationship other than this Agreement between Fitness Center
and ASH Fitness,or an ASH Fitness' affiliate;
e) Fitness Center is not participating in at least one program pursuant to this Agreement;
f) Fitness Center has no Fitness Center Participating Locations; or
g) Any occurrence or condition which materially impairs the ability of Fitness Center or a Fitness Center
Participating Location to perform responsibilities under this Agreement.
6.03 Fitness Center Program Participation Termination. Fitness Center may terminate participation in a
program by providing at least one hundred twenty (120) days' notice prior to the expiration of the current
term. Such termination of participation will be effective on January 1st immediately preceding the notice.
6.04 Fitness Center Appeal of Termination. Fitness Center may appeal ASH Fitness' termination for cause by
providing a written request to ASH Fitness within thirty(30)days from the date of the termination notice by
ASH Fitness. Such appeal rights may occur before and/or after the effective date of termination. If a
termination appeal results in a reinstatement,ASH Fitness may provide Fitness Center with a new Effective
Date for this Agreement
6.05 Effect of Termination. Except as otherwise provided herein,this Agreement shall be of no further force or
effect following the date of termination, except that each Party shall remain liable for any obligations or
liabilities arising from the activities carried on by it hereunder prior to the date of termination.
6.06 Survival of Certain Contractual Provisions after Termination. Notwithstanding any other provision of
this Agreement,the following provisions of this Agreement shall survive any termination of this Agreement:
National Fitness Center Services Agreement-MC Page 12 of 32 01/O1/2021
Sections 2.02, 2.04, 3.01, 3.07, 3.09.2, 6.05, 6.06, and 6.07, in addition to, Article 7, Article 8, Article 9,
Article 10,Article 15,Article 16,Article 18,Article 19, and Article 20.
6.07 Fitness Center Responsibility during Termination Notice Period. Where Fitness Center or ASH Fitness
provides notice of non-renewal pursuant to Article 5 or termination pursuant to Section 6.01 Fitness Center
shall continue to provide Services pursuant to this Agreement up to and including the effective date of
termination or non-renewal.
6.08 Fitness Center Responsibilities after Termination of Program,Location or Agreement. Fitness Center
understands that materials such as network directories provided to Members by ASH Fitness or ASH Clients
may continue to reflect that a location is participating in the ASH Fitness and/or ASH Client's network for
some period of time following the termination of a location's participation. Therefore, to avoid Member
confusion regarding the location's status with ASH Fitness, regardless of which Party terminates this
Agreement or a location's participation,Fitness Center shall inform any Member who seeks Services that the
location is no longer contracted with ASH Fitness. N
�►.� • v
ARTICLE 7 HOLD HARMLESS.
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Fitness Center shall be solely responsible for and shall hold ASH Fitness free and harmless from any claims,losses,
damages,liabilities,costs,expenses, attorneys' fees and costs or obligations arising from or relating to: 1) any act or
omission of Fitness Center, Fitness Center's agents, partners, associates, employees or representatives in providing
or failing to provide Services in conjunction with this Agreement to Members; ii) arising from or relating to any act
or responsibility of Fitness Center; or 111) any injuries occurring at the Fitness Center . Nothing in this Agreement
constitutes a waiver by Fitness Center of any statutory or common law defenses, immunities or limits on liability.
ASH Fitness shall be solely responsible for and shall hold Fitness Center free and harmless from any claims,losses,
damages, liabilities, costs, expenses, attorneys' fees and costs or obligations arising from or relating to any act or
omission of ASH Fitness, its agents, employees or representatives in connection with ASH Fitness' responsibilities
under this Agreement.
The party requesting indemnification"Indemnified Party"will notify the other party"Indemnifying Party"in writing
of its knowledge or receipt of any notice of a potential demand,claim or legal action(collectively"Legal Claim") or
the commencement a Legal Claim as soon as practicable,provided that the failure to notify the Indemnifying Party
will not relieve the Indemnifying Party from any liability under this Agreement except to the extent that the
Indemnifying Party's ability to defend against or avoid Legal Claims has been prejudiced by such delay. The
Indemnifying Party shall promptly(and in no event later than thirty(30)days after receiving notice of a Legal Claim)
decide whether to assume control of the defense of a Legal Claim. If the Indemnifying Party does not elect to control
such defense,then the Indemnified Party shall assume such control of the defense and the Indemnifying Party will
remain liable to indemnify for all reasonable attorneys' fees and costs.In the event that the Indemnifying Party elects
to control the defense of Legal Claims, the Indemnifying Party's choice of counsel shall be reasonably satisfactory
to the Indemnified Party,and the Indemnified Party shall be entitled to participate in such defense and shall cooperate
fully in connection therewith, including in determining the validity of any Legal Claim or assertion requiring
indemnity hereunder and in defending against third parties with respect to the same. The party that is not controlling
the defense of a Legal Claims may have its own counsel present at its own cost to monitor proceedings related to the
Legal Claims. The Indemnifying Party hereby agrees not to settle or compromise any Legal Claims without prior
written consent of the Indemnified Party.
ARTICLE 8 COMMUNICATION OF RELATIONSHIP WITH ASH FITNESS AND ASH CLIENTS.
Fitness Center shall not initiate any written communication,solicitation or advertisement of any type referencing the
relationship with ASH Fitness and/or ASH Client without the prior written approval of the communication by ASH
Fitness. This includes, but is not limited to, Internet web pages, social networking, newspapers, yellow pages,
billboards,mass mailings,telemarketing, location posters or business cards. Only where ASH Fitness reviews and
gives prior written approval may Fitness Center display and/or distribute materials to promote programs associated
with this Agreement. If Fitness Center sends an advertisement or communication without prior approval from ASH
Fitness,ASH Fitness reserves the right to remove Fitness Center from its Fitness Center directory and restrict access
to new members for a period of one(1)month for the first occurrence and three(3)months for the second occurrence.
National Fitness Center Services Agreement-MC Page 13 of 32 01/01/2021
ASH fitness reserves the right to terminate this Agreement after the third occurrence of an advertisement or
communication being sent without ASH Fitness' approval.
ARTICLE 9 RECORDS AND DATA COLLECTION.
9.01 Maintenance of Records. Fitness Center shall maintain and provide ASH Fitness, and upon the request of
ASH Clients, U.S. Department of Health and Human Services, U.S. Department of Justice, Office of
Inspector General,Center for Medicare and Medicaid Services and/or other federal and state agencies,with
all records relating to Services provided to each Member by Fitness Center,in such form and containing such
information as is required by applicable federal and state law, and such other information as ASH Fitness,
ASH Clients, or other such agencies may require. For Members enrolled in an ASH Client's Medicare
Advantage and/or Medicaid plans,records shall be retained in accordance with Section 8 of Attachment G.
For all other Members, such records shall be retained by Fitness Center the greater of ten years or in
accordance with applicable state laws. y
9.02 Access to Facility and Records. Fitness Center shall provide access to ASH Fitness, at reasonable times
upon request by ASH Fitness,ASH Client,and/or regulatory agencies with oversight of ASH Fitness or ASH
Client operations,to monitor program compliance and inspect Fitness Center's facilities, equipment,books,
papers, and records relating to Fitness Center's performance under this Agreement. �A
9.03 Confidential Member Information.
—
9.03.1 ASH Fitness and its affiliates shall protect access to, and distribution of, information and/or records
that are subject to regulatory requirements for protection of member information and privacy
including,but not limited to protection for non-public personal information. Therefore,ASH Fitness
and Fitness Center shall abide by all applicable Federal and State laws and regulations regarding
privacy,security and disclosure of Member personal information. Fitness Center agrees to maintain
records and other information with respect to Members in an accurate and timely manner,to provide
timely access by Members to the records and information that pertain to them and to safeguard the
privacy of any non-public information that can be used to identify a particular Member. Fitness
Center shall limit uses and disclosures of personal information obtained in connection with this
Agreement(including any information received from ASH Fitness or through ASHLink) solely for
payment and related operational purposes permitted or required by this Agreement or as required by
law. Fitness Center shall use such personal information only to the extent minimally necessary to
satisfy those obligations. Any other use of personal information obtained in connection with this
Agreement is strictly prohibited unless required by law or as otherwise permitted in writing by ASH
Fitness. This specifically includes using Member's personal information obtained or created in
fulfillment of obligations under this Agreement for marketing and fundraising purposes. Fitness
Center further certifies that use of any information collected, created or received through access as
noted above is strictly limited to purposes required to meet obligations under this agreement and may
not be directly or indirectly sold,exchanged,bartered or otherwise brokered for consideration to any
third parties.
9.03.2 Upon discovering an incident where the personal information of a Member could have been acquired,
used or disclosed in a manner not permitted under this Agreement, including situations where such
personal information could have been viewed by persons other than Fitness Center employees
authorized by the Fitness Center to perform duties under this Agreement, Fitness Center shall
immediately,but in no case later than one business day, report the incident to ASH Fitness' Privacy
Office. Fitness Center will expediently supply all information reasonably requested by ASH Fitness
regarding the investigation of suspected privacy incidents referenced above.
9.03.3 Fitness Center shall advise members of its workforce of their obligations to protect and safeguard
Members' personal information obtained or created in the fulfillment of Fitness Center's obligations
under this Agreement. Fitness Center will develop, implement, maintain and use appropriate
administrative, technical and physical safeguards consistent with minimum standards set forth in
state or federal law (such as the Social Security Act §1173(d), 45 C.F.R. §164.530(c)(1) and any
other implementing regulations issued by the U.S. Department of Health and Human Services), to
National Fitness Center Services Agreement-MC Page 14 of 32 01/01/2021
preserve the integrity and confidentiality of and to prevent non-permitted or violating use or
disclosure of Member's personal information.
9.03.4 Fitness Center shall notify ASH Fitness Privacy Office immediately of any requests received from a
Member related to obligations under this Agreement for restrictions on uses and disclosure of
personal information, any requests for deletion of personal information, any requests for an
accounting of personal information, or any requests to authorize an agent to act on the Member's
behalf.Fitness Center will direct any questions or concerns regarding ASH's privacy practices to the
ASH Privacy Office.
9.03.5 ASH Fitness is the exclusive owner of information, including personal information, generated or
used by Fitness Center for fulfillment of its obligations under the terms of this Agreement.
9.03.6 Fitness Center will indemnify and hold harmless ASH Fitness, its officers, directors, employees or
agents from and against any claim, cause of action, liability, damage, cost or expense, including
attorneys' fees and costs and court or proceeding costs,arising out of or in connection with any non-
permitted or violating use or disclosure of Members' personal information by Fitness Center or any
subcontractor, agent, person or entity under Fitness Center's control. Nothing in this Agreement
constitutes a waiver by Fitness Center of any statutory or common law defenses,immunities or limits
on liability. _
9.03.7 Upon termination, cancellation, expiration or other conclusion of the services provided by Fitness
Center, Fitness Center will if feasible, return to ASH Fitness or destroy all Confidential Member
Information in whatever form or medium including any electronic medium under Fitness Center's
custody or control that Fitness Center created or received for or from ASH Fitness. Fitness Center
will complete such return or destruction as promptly as possible, but no later than thirty (30) days
after the effective date of the termination,cancellation,expiration or other conclusion of the services
provided by Fitness Center. If return or destruction of Confidential Member Information is
infeasible, Fitness Center will extend the protections of this Article 9 to such information and limit
its further use or disclosure to those purposes that make return or destruction of Confidential Member
Information infeasible. .r
9.03.8 Notices to the ASH Fitness Privacy Office may be sent by overnight mail, first class mail, email or
hand delivery to:
American Specialty Health Fitness,Inc.
Attn: Privacy Officer
10221 Wateridge Circle
San Diego, CA 92121
E-mail: HIPAA@ashn.com
Tel: (800) 848-3555
Fax: (858)237-3839
ARTICLE 10 PROPRIETARY INFORMATION.
All information, documents, software and other materials of any sort furnished to Fitness Center by ASH Fitness
including, without limitation, this Agreement and any rates included in this Agreement, the Program Manual, any
Client Lists, and any copyrighted or trademarked materials,shall be the property of ASH Fitness and shall be treated
as confidential. Such proprietary information shall not be disclosed to anyone who does not have a need to know
such information and is only to be used by Fitness Center in connection with the performance of Fitness Center's
obligations under this Agreement and only in the manner provided for in this Agreement. Fitness Center shall not
disclose or use any proprietary information or trade secrets for Fitness Center's own benefit during the term of this
Agreement or after termination of this Agreement, except as required by law or as authorized in writing by ASH
Fitness. Fitness Center shall have no ownership rights in said proprietary information including,but not limited to,
copying,use or distribution of said proprietary information. ASH Fitness acknowledges that Fitness Center is subject
to the requirements of its state's Public Records Act and that some information which ASH Fitness deems confidential
may be disclosed under this Act. In the event that any such proprietary information of ASH Fitness is required to be
National Fitness Center Services Agreement-MC Page 15 of 32 01/01/2021
disclosed by Fitness Center by law or valid order of a court or other governmental authority,Fitness Center shall,to
the extent legally permitted, give notice to ASH Fitness. ASH Fitness shall be responsible for objecting to such
disclosure or for obtaining a protective order requiring that the propriety information so disclosed be used only for
the purposes for which the order was issued.
Upon termination of this Agreement, Fitness Center shall destroy all proprietary information in Fitness Center's
possession. Fitness Center shall cooperate with ASH Fitness in maintaining the confidentiality of such proprietary
information at all times during and after termination of this Agreement.
Fitness Center acknowledges that a breach of the terms and conditions of this Article shall cause immediate and
irreparable harm to ASH Fitness,and as such,ASH Fitness shall be entitled to seek any monetary and equitable relief
allowed by law. Notwithstanding the foregoing, in the event a breach of confidentiality involves any rates set forth
in this Agreement, ASH Fitness may, in its discretion, immediately reduce the compensation rates paid to Fitness
Center. v
ARTICLE 11 TRADEMARKS
11.01 Use of Names and Marks. This Agreement does not grant Fitness Center a license or sublicense,except as
provided in this Article 11, to use the names, trademarks, service marks, corporate names, trade names,
domain names, or logos owned by ASH Fitness or its parent company American Specialty Health
Incorporated("ASH Marks"). During the term of this Agreement Fitness Center may use ASH Fitness'name
or ASH Marks solely in connection with identifying the relationship as contemplated in this Agreement or
as specified in the Program Manual. Any other use of ASH Marks is subject to the prior review and written
approval of ASH Fitness. Fitness Center shall be allowed to use the ASH Marks Silver&Fit®, Silver&Fit
Signature Series Classes®,Active&Fit®, and/or ExerciseRewardsTM on its web sites and print media for the
promotion of Fitness Center's participation in the applicable programs for which Fitness Center is a
Contracted Facilityl. Such use must comply with this Article and the "Guidelines for Trademark Use by
Third Parties" issued by ASH Fitness from time to time, a current version of which can be found in the
Program Manual. Approval in this Section shall be deemed automatically withdrawn upon the effective date
of expiration or termination of this Agreement,unless sooner withdrawn by written notice from ASH Fitness.
11.02 Injunctive Relief. The Parties agree that a breach of the terms and conditions of this Article may cause
immediate and irreparable harm. Therefore,in addition to any other rights or remedies available at law or in
equity, ASH Fitness is entitled to seek injunctive relief to restrain or enjoin the breach, without any
requirement of bond or security.
ARTICLE 12 ASSIGNMENT AND CHANGE OF OWNERSHIP.
ASH Fitness may,in its discretion, assign all or a portion of its rights or responsibilities under this Agreement to any
party at any time without approval of Fitness Center. All provisions of this Agreement and obligations arising
hereunder shall extend to and be binding upon the Parties hereto and their respective successors and assignees and
shall inure to the benefit,and be enforceable by the Parties hereto and their respective legal representatives,successors
and assignees.
ARTICLE 13 SUBCONTRACTS
Fitness Center shall not subcontract any of its obligations under this Agreement to any third party without the prior
written approval of ASH Fitness,which may be withheld or withdrawn in its sole discretion. Where ASH Fitness
allows Fitness Center to subcontract any of its obligations to another party,Fitness Center shall remain ultimately
responsible to ASH Fitness for the Services performed hereunder.
1 Silver&Fit, Silver&Fit Signature Series Classes,Active&Fit,and ASHLink are registered trademarks of American
Specialty Health,Incorporated. All rights are hereby reserved.
National Fitness Center Services Agreement-MC Page 16 of 32 01/O1/2021
ARTICLE 14 FORCE MAJEURE.
Neither party will be liable for delay in delivery or nonperformance in whole or in part (other than a failure to pay
any amount due hereunder), nor will the other party have the right to terminate this Agreement where delivery or
performance has been affected by a Force Majeure Event, except as otherwise specifically provided in this Section
or in any Termination provisions of this Agreement. "Force Majeure Event"means any act or event,whether foreseen
or unforeseen, that prevents a nonperforming party, in whole or in part, from performing its obligations under this
Agreement, or satisfying any conditions to the obligations of the performing party under this Agreement where: (1)
the act or event is beyond reasonable control of and not the fault of the nonperforming party,e.g.war,terrorism,not
or insurrections, law or regulation, strike, flood, fire, explosion, pandemic, epidemic, quarantine or other similar
event; (11) the nonperforming party has been unable to avoid or overcome the act or event by the exercise of best
efforts; and (111) the nonperforming party gives notice to the performing party as soon as is practicable after the act
or event(or commencement of the act or event if the Force Majeure event lasts more than three (3) calendar days)
stating the nature of the act or event, its anticipated duration, and any action the nonperforming party is taking to
avoid or minimize its effect
The suspension of performance will be of no greater scope and no longer duration than is reasonably required and
the nonperforming party must use commercially reasonable efforts to remedy its inability to perform. In the event
the suspension of performance continues for twenty-one (21) calendar days after the initial occurrence of the Force
Majeure Event, and such failure to perform would constitute a material breach of this Agreement in the absence of
such Force Majeure Event,then ASH Fitness may terminate this Agreement immediately by providing written notice
to Fitness Center. N
ARTICLE 15 INDEPENDENT CONTRACTORS.40 10
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15.01 None of the provisions of this Agreement shall be construed to create a relationship of agency,representation,
joint venture, ownership, control or employment between the Parties, other than that of independent parties
contracting solely for the purpose of effectuating this Agreement.
15.02 Fitness Center shall be responsible solely to eligible Members for Services. Fitness Center is an independent
contractor and ASH Fitness shall have no dominion or control over Fitness Center,Fitness Center-Member
relationship, Fitness Center's personnel or Fitness Center's services. Fitness Center and Fitness Center's
employees and agents shall not have any claim,under this Agreement or otherwise,against ASH Fitness for
vacation pay, sick leave or retirement or other benefits of any kind. During the term of this Agreement or
any renewals hereof,Fitness Center shall be fully responsible and liable for all state and federal income taxes
or other taxes to which payments made by ASH Fitness to Fitness Center may become subject. Fitness Center
is responsible to maintain all necessary insurance policies, such as workers' compensation, errors and
omissions, and general business liability insurance in amounts necessary to provide adequate coverage for
all liabilities and in accordance with Section 3.16 of this Agreement. Where Fitness Center has independent
contractors, Fitness Center will require its independent contractors to carry the required insurance amounts
specified in Section 3.16 if not covered under Fitness Center's insurance.
ARTICLE 16 GOVERNING LAW.
This Agreement shall be interpreted and governed by the laws of the State in which the Fitness Center is located,
except to the extent that law is contrary to or preempted by federal law. Any provisions required to be in this
Agreement by any law shall bind the Parties hereto,whether or not expressly provided in this Agreement.
ARTICLE 17 SEVERABILITY.
In the event any provision of this Agreement is rendered invalid or unenforceable by state or federal law or declared
null and void by any court of competent jurisdiction,the remainder of the provisions of this Agreement shall remain
in full force and effect unless otherwise specified in this Agreement. In the event that a provision of this Agreement
is rendered invalid or unenforceable or declared null and void as provided herein, and its removal has the effect of
materially altering the obligations of either Party in such manner as,in the judgment of the Party affected,will cause
serious financial hardship to such Party or will cause such Party to act in violation of its corporate articles or bylaws,
National Fitness Center Services Agreement-MC Page 17 of 32 01/O1/2021
the Party so affected shall have the right to terminate this Agreement by providing the other Party with at least fifteen
(15)days prior written notice.
ARTICLE 18 DISPUTES BETWEEN FITNESS CENTER AND MEMBERS.
Where ASH Fitness and/or an ASH Client determine that a dispute between Fitness Center and Member is subject to
the provisions of this Agreement and ASH Fitness and/or ASH Client's appeals and grievance processes, policies,
procedures and standards,Fitness Center agrees to assist ASH Fitness and provide any information necessary,at no
cost to ASH Fitness,for ASH Fitness to review and evaluate a Member grievance or appeal presented for resolution.
ASH Fitness' grievance and appeal process is described in the Program Manual. This section does not preclude
Fitness Center and Member from seeking any appropriate legal action to resolve any controversy, dispute or claim
which is not governed by the terms of this Agreement.
ARTICLE 19 DISPUTES BETWEEN FITNESS CENTER AND ASH FITNESS. _`JV
In the event of any dispute between Fitness Center and ASH Fitness(or their respective affiliates,owners,employees,
agents,predecessors,or successors)arising out of or relating to this Agreement,Fitness Center and ASH Fitness shall
first attempt in good faith to resolve the dispute mutually between themselves. If Fitness Center and ASH Fitness
are unable to resolve the dispute by mutual agreement then all matters in controversy shall be submitted, upon the
motion of either party,to binding arbitration pursuant to the requirements of the Federal Arbitration Act,9 U.S.C. §§
1-16. Arbitration proceedings shall be administered by the American Arbitration Association("AAA")in accordance
with the AAA. The arbitrator shall be bound by applicable state and federal law,subject to Article 16,and shall issue
a written opinion setting forth findings of fact and conclusions of law. Fitness Center and ASH Fitness agree to share
equally the AAA administrative fee as well as the arbitrator's fees and expenses,if any,unless otherwise assessed by
the arbitrator. The administrative fees shall be advanced by the initiating Party,subject to final apportionment by the
arbitrator. In addition,except as provided below,in any arbitration commenced by the Fitness Center,if the amount
of the Fitness Center's claims is less than$10,000,the Fitness Center's share of the AAA administrative fees and the
arbitrator's fees and expenses shall be capped at $25. And if the amount of the Fitness Center's claims is between
$10,000 and$50,000,the Fitness Center's share of the AAA administrative fees and the arbitrator's fees and expenses
shall be capped at$500. However,if the arbitrator concludes that the Fitness Center's claims are frivolous or brought
for an improper purpose (as measured by the standards of Federal Rule of Civil Procedure I I(b)),then all such fees
and expenses shall be allocated by the arbitrator in accordance with the AAA Commercial Arbitration Rules, and
Fitness Center agrees to reimburse ASH Fitness for any monies paid on Fitness Center's behalf that would be Fitness
Center's responsibility under those rules.
Fitness Center and ASH Fitness agree that the arbitrator's award may be enforced in any court having jurisdiction
thereof by the filing of a petition to enforce said award. Costs of filing to have an award enforced may be recovered
by the Party which brings such action.
Any arbitration proceedings shall occur in the state in which Fitness Center is providing Services to Members
pursuant to this Agreement.
Unless forbidden by applicable law,Fitness Center and ASH Fitness agree that if they become involved in a claim or
dispute under the arbitration process outlined herein, neither Party will disclose to any other person not directly
involved in the arbitration process: (i) the substance of, or basis for, the claim; (11) the content of any testimony or
other evidence presented at the arbitration hearing or obtained through discovery;or(111)the terms or amount of any
agreement reached pursuant to arbitration.
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only
to the extent necessary to provide relief warranted by that party's individual claim without affecting other contracted
Fitness Facilities.The Contracted Fitness Center and ASH Fitness agree that they may bring claims against the other
only in their respective individual capacities, and not as a plaintiff or class member in any purported class,
representative,or private Attorney General proceeding.Further,unless all parties agree otherwise,the arbitrator may
not consolidate more than one contracted Fitness Center's claims, and may not otherwise preside over any form of a
class, representative, or private attorney general proceeding. If a court decides that applicable law precludes
enforcement of any of this subsection's limitations as to a particular claim for relief, then that claim (and only that
claim)must be severed from the arbitration and may be brought in court.
National Fitness Center Services Agreement-MC Page 18 of 32 01/01/2021
ARTICLE 20 DISPUTES BETWEEN FITNESS CENTER AND ASH CLIENT.
In the event of any dispute between Fitness Center and an ASH Client (or their respective affiliates, owners,
employees, agents, predecessors, or successors) arising out of or relating to this Agreement, at the request of ASH
Fitness, Fitness Center shall first attempt in good faith to resolve the dispute mutually with the ASH Client through
ASH Fitness, including but not limited to, utilizing all available levels of ASH Fitness' grievance and appeals
processes,unless otherwise prohibited by state law. Fitness Center may seek ASH Fitness' assistance with regard to
any dispute by contacting ASH Fitness in writing or by telephone at the address and telephone referenced in Article
21.
ARTICLE 21 NOTICES. 61,
Any notice required or permitted to be given under this Agreement to ASH Fitness or Fitness Center, shall be in
writing and shall be(a)delivered by electronic means(i.e.ASHLink,sent via an inalterable email document(such as
PDF),) , (b) delivered in person, (c) sent by certified, registered mail, or "overnight express" by the United States
Postal Service with return receipt requested and postage prepaid, or(d) sent"express mail," "two day delivery," "3-
5 day ground" or any similar service offered by private, prepaid courier such as Federal Express, United Parcel
Service or any similar organization. ASH Fitness shall send all notices to Fitness Center's ASHLink account, email
or mailing address on file with ASH Fitness. Fitness Center shall provide at least thirty(30)day notice to any change
in its email or mailing address to ASH Fitness via ASHLink,or to the email,or address provided below.
NOTICES TO ASH FITNESS:
American Specialty Health Fitness,Inc.
P.O.Box 509117
San Diego,CA 92150-9117 A Q
For specific email addresses, call ASH Fitness at(877) 329-2746. The appropriate email address will be provided
depending on the nature of the Notice.
Notice shall be effective on the earlier of the date received or the date deemed received.
• Notices given by electronic means (i.e. ASHLink, sent via an inalterable email document (such as
PDF)) shall be deemed received one (1)business day after being sent.
• Notices delivered personally shall be deemed received upon actual receipt.
• Notices given by certified or registered mail shall be deemed received two (2)United States Postal
Service business days after the date mailed.
• Notices given by "3-5 day ground" will be deemed received five (5) business days after the date
delivered to the United States Postal Service,Federal Express,United Parcel Service or any similar
organization.
• Notices sent for delivery by any other means specified in this first paragraph of this Article shall be
deemed received two (2) business days after delivery to the United States Postal Service, Federal
Express,United Parcel Service or any similar organization.
ARTICLE 22 CAPTIONS.
Captions in this Agreement are descriptive only and shall not affect the intent or interpretation of this Agreement.
ARTICLE 23 NO THIRD PARTY BENEFICIARIES.
Except as otherwise expressly provided in this Agreement, nothing in this Agreement shall create or be deemed to
create any rights or remedies in any third party,including but not limited to a Member or a Fitness Center other than
Fitness Center, subject only to Article 25.
ARTICLE 24 AMENDMENTS.
Any amendments to this Agreement shall be mutually agreed to by the parties. Any amendments to ASH Client Lists
or revisions to the Program Manual shall be issued by ASH Fitness and shall be automatically effective and
National Fitness Center Services Agreement-MC Page 19 of 32 01/01/2021
incorporated into this Agreement on the date received or deemed received pursuant to Article 21 of this Agreement,
unless otherwise specified in such notice or required by applicable state law.
ARTICLE 25 INSOLVENCY OF ASH FITNESS;PROTECTION OF INTERESTS OF FITNESS CENTER,
MEMBERS,AND ASH CLIENTS.
This Article shall apply only in the event of the insolvency of ASH Fitness and only if,as a result of the insolvency,
ASH Fitness is unable to discharge its duties under this Agreement or its Agreement with ASH Clients.
For purposes of this Article,the insolvency of ASH Fitness means the filing of a voluntary petition by ASH Fitness,
or the filing of an involuntary petition by ASH Fitness' creditors, under Chapter 7 of the Bankruptcy Code
(Liquidation),and the date of the insolvency shall be the date on which any such petition is filed. The insolvency of
ASH Fitness shall not include the filing of a voluntary petition by ASH Fitness,or the filing of an involuntary petition
by ASH Fitness' creditors,under Chapter 11 of the Bankruptcy Code (Reorganization).
To the extent this Article grants any rights to any ASH Client, Fitness Center agrees and acknowledges that ASH
Client is a third-parry beneficiary of this Article and shall have all rights granted under law by a third-party beneficiary
to enforce this Article.
ARTICLE 26 ENTIRE AGREEMENT O
40i`
This Agreement includes all attachments, the Program Manual, and all amendments thereto. Each Party
acknowledges that no representation,inducement,promise or agreement,orally or otherwise, has been made by any
Party or anyone acting on behalf of any Party,which is not embodied herein. In the event of an inconsistency between
this Agreement and any ASH Client Summary or this Agreement and attachments, the ASH Client List or
attachments,respectively,shall control the rights and duties of the Parties. In the event of any inconsistency between
the Program Manual and this Agreement,this Agreement,together with any attachments,exhibits and amendments,
including any current ASH Client List, shall control the rights and duties of the Parties.
ARTICLE 27 EFFECTIVE DATE OF AGREEMENT. tub
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ASH Fitness will provide Fitness Center with notice of the Effective Date after Fitness Center returns one original
copy of this Agreement to ASH Fitness,and all pre-contractual requirements are fulfilled based upon a determination
by ASH Fitness. Fitness Center agrees to be bound by this Agreement as of the Effective Date as determined by
ASH Fitness and indicated immediately below. I&
The Effective Date of this Agreement is 1 0/21/2022
[To be completed by ASH Fitness Only]
Fitness Center agrees to participate in the following attachments,as indicated with a check in the attachment(s)box:
❑x Attachment A: Silver&Fit Basic Attachment
❑ Attachment B; Silver&Fit Full Attachment
❑x Attachment C: Active&Fit Attachment
National Fitness Center Services Agreement-MC Page 20 of 32 01/01/2021
NATIONAL FITNESS CENTER SERVICES AGREEMENT
ACCEPTED AND AGREED:
CITY OF FORT WORTH:
Contract Compliance Manager:
By signing I acknov►.ledge that I am the person
responsible for the monitoring and aduninistration
By: cv� of this contract,including ensuring all performance
Name: Jesica McEachern and reporting requirements.
Title: Assistant City Manager 0
Date: Oct 25, 2022 � �
By:
Approval Recommended: Name: Sheri Endsley
Title° District Superintendent
[� Park&Recreation Department
By: '""' Approved as to Form and Legality-:
Name: Dave Lew-is
Title: Acting Director
Park& Recreation Department ALL
BY: KiaArbs i ct 19.zazz-
Name: Nico Arias
By: Title: Assistant City Attorney
Naive: Kelli Pickard
Title: Assistant Director Contract Authorization:
Park&Recreation Department NI&C: N/A
Form 1295:NIA
Attest:
oO�FOR).
O°°°°°°°°° !y d
° Od
J ette S.Goodall(Oct 25,202215: CDT) P�o o
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Name: Jannette S. Goodall �vo °=A
Title: City Secretary P� *a o*
°° 0° o'
°00000000
a�?EXASoAp
ASH Fitness: V
American Specialty Health Fitness,Inc.
By:
Name: George DeVries
Title: Founder and CEO
Date: 10/7/2022
OFFICIAL RECORD
CITY SECRETARY
FT.WORTH, TX
National Fitness Center Services Agreement-MC Page 21 of 32 01/01/2021
AMERICAN SPECIALTY HEALTH FITNESS,INC.
FITNESS CENTER SERVICES AGREEMENT
ATTACHMENT A- SILVER&FIT®BASIC ATTACHMENT
1.0 DEFINITIONS.
For purposes of this attachment and in addition to the terms defined in the Agreement,the following terms shall have
the meanings indicated:
1.01 Silver&Fit Program. The Silver&Fit Program is an exercise and healthy aging program offered to
Members that are health plan enrollees eligible for Medicare coverage or are group retirees.
1.02 Silver&Fit Basic Fitness Center. As a Silver&Fit Basic Fitness Center shall provide Members the
Standard Fitness Center Membership as set forth in Section 3.09.1 of the Agreement. V
2.0 FITNESS CENTER OBLIGATIONS ,t7► �,
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In addition to the obligations in Article 3 of the Agreement,Fitness Center shall have the following obligations for
this program:
2.01 Free Trial Obligation. Fitness Center shall offer and honor a one-time free trial(guest pass)for each
Member to try out the fitness center prior to joining if the member requests one.
2.02 Fitness Center Listing Information. Fitness Center must maintain current and accurate listing
information with ASH Fitness. Fitness Center shall notify ASH Fitness with a change to listing
information in accordance with Section 3.06 of the Agreement.
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National Fitness Center Services Agreement-MC Page 22 of 32 01/01/2021
Attachment A—Silver&Fit Basic
AMERICAN SPECIALTY HEALTH FITNESS,INC.
FITNESS CLUB SERVICES AGREEMENT
ATTACHMENT B— SILVER&FIT FULL ATTACHMENT
1.0 DEFINITIONS.
For purposes of this attachment and in addition to the terms defined in the Agreement,the following
terms shall have the meanings indicated:
1.01 Designated Silver&Fit Exercise Classes. Designated Silver&Fit Exercise Classes are older
adult oriented exercise classes that Fitness Center agrees to allow ASH Fitness to approve
as a Silver&Fit exercise class in its directory for ASH Clients and Members. The Fitness
Center may choose to offer one or more classes from the following categories: A ft
• Silver&Fit Signature Series Classes® (these classes s as designed by ASH Fitness
and are available to Fitness Center to offer as a Designated Silver&Fit Exercise
Class. Any equipment required for these classes may either be provided by Fitness
Center itself or to Fitness Center by ASH Fitness for an additional fee.)
• Senior Dance
• Senior Yoga
• Strength/Cardio Training for older adults
• Tai Chi
• Aqua v �r
• Fall Prevention Ob
• Special ecial Conditions ,
.
Fitness Center shall elect how many classes it wishes to designate as a Silver&Fit Exercise
Class each week in the Fitness Center Election Section of this Attachment, attached hereto
as Exhibit 1. Fitness Center may not designate an older adult exercise class sponsored by
or provided by any organization which is a competitor of ASH Fitness.
1.02 Silver&Fit Program. The Silver&Fit Program is an exercise and healthy aging program
offered to Members that are health plan enrollees eligible for Medicare coverage or are group
retirees.
1.03 Silver&Fit Full Fitness Center. As a Silver&Fit Full Fitness Center, Fitness Center shall
provide Members with a Standard Fitness Center Membership as set forth in Section 3.09.1
of the Agreement, Designated Silver&Fit Exercise Classes and/or Quarterly Social
Activities.
1.04 Quarterly Social Activities. Quarterly Social Activities are quarterly events sponsored by
Fitness Center. Examples of these social events may consist of, but is not limited to,bagels
and coffee, off-site walking clubs, and potlucks.
2. FITNESS CENTER OBLIGATIONS.In addition to the obligations in Article 3 of the Agreement,
Fitness Center shall have the following obligations for this program:
2.01 Designated Silver&Fit Exercise Classes. Fitness Center agrees that it shall have at least one (1)
instructor who has obtained proper credentials (e.g. certifications, teaching licenses, certificates of
completion) to teach the particular Designated Silver&Fit Exercise Class. Fitness Center shall arrange
National Fitness Center Services Agreement-MC Page 23 of 32 01/01/2021
Attachment B
for any required payment for the exercise programs or training classes required, either by (a) Fitness
Center on behalf of the instructor or(b)the instructor directly.
2.02 Free Trial Obligation. Fitness Center shall offer and honor a one-time free trial (guest pass) for
each Member to try out the fitness center prior to joining if the member requests one.
2.03 Silver&Fit Exercise Classes Health and Safety Guidelines. Fitness Center shall comply with
ASH Fitness' Health& Safety Guidelines for Designated Silver&Fit Exercise Classes. These guidelines
are in addition to the Health and Safety Guidelines in Attachment I of this Agreement and shall be
distributed to Fitness Center upon notifying ASH Fitness of its election to offer Designated Silver&Fit
Exercise Classes. Upon Fitness Center's acceptance of these guidelines, the elected classes shall be
listed in ASH Fitness' Fitness Center listing as Designated Silver&Fit Exercise Classes.
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2.04 Fitness Center Listing Information. Fitness Center must maintain current and accurate listing
information with ASH Fitness. Fitness Center shall notify ASH Fitness with a change to listing
information in accordance with Section 3.06 of the Agreement.
3. ASH FITNESS OBLIGATIONS.FitnessEngagement.com. Fitness Center shall have access to a web
site that will provide tools to help assist Fitness Center in providing the Silver&Fit Program to
Members. The website shall include training materials to help assist with the Designated Silver&Fit
Exercise Classes, as well as promotional fliers for Fitness Center to use to promote the Silver&Fit
Program and Designated Silver&Fit Exercise Classes. %k ur
3.02 Silver&Fit Online Fitness Center Listing. ASH Fitness shall provide ASH Clients and
Members with an online Fitness Center listing of participating Fitness Centers. The online
listing shall list the Designated Silver&Fit Exercise Classes offered by Fitness Center and if
Fitness Center holds Quarterly Social Activities.
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National Fitness Center Services Agreement-MC Page 24 of 32 01/01/2021
Attachment B
AMERICAN SPECIALTY HEALTH FITNESS,INC.
FITNESS CENTER SERVICES AGREEMENT
ATTACHMENT C -ACTIVE&FIT®ATTACHMENT
1.0 DEFINITIONS.
For purposes of this Agreement and in addition to the terms elsewhere defined herein,the following terms shall have
the meanings indicated:
1.01 Active&Fit Program. The Active&Fit Program is a fitness program whereby ASH Fitness or its
affiliates arrange for the provision of Services to Members. This program provides Member with a
Standard Fitness Center Membership.
2.0 FITNESS CENTER OBLIGATIONS _�v
2.01 Free Trial Obligation. Fitness Center shall offer and honor a one-time free trial(guest pass for each
Member to try out the fitness center prior to joining if the member requests one. �
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National Fitness Center Services Agreement-MC Page 25 of 32 01/01/2021
Attachment C
AMERICAN SPECIALTY HEALTH FITNESS,INC.
FITNESS CENTER SERVICES AGREEMENT
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National Fitness Center Services Agreement-MC Page 26 of 32 01/01/2021
Attachment D
AMERICAN SPECIALTY HEALTH FITNESS,INC.
FITNESS CENTER SERVICES AGREEMENT
ATTACHMENT E-INTENTIONALLY LEFT BLANK
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National Fitness Center Services Agreement-MC Page 27 of 32 01/01/2021
Attachment E
AMERICAN SPECIALTY HEALTH FITNESS,INC.
FITNESS CENTER SERVICES AGREEMENT
ATTACHMENT F-INTENTIONALLY LEFT BLANK
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National Fitness Center Services Agreement-MC Page 28 of 32 01/01/2021
Attachment F—
AMERICAN SPECIALTY HEALTH FITNESS,INC.
FITNESS CENTER SERVICES AGREEMENT
ATTACHMENT G—MEDICARE ADVANTAGE AND MEDICAID ADDENDUM
This exhibit is entered into by American Specialty Health Fitness, Inc. ("ASH Fitness") and the Fitness Center listed on
the signature page of the Agreement("Fitness Center") and is intended to add certain provisions to the Agreement in order
to comply with requirements of the Centers for Medicare and Medicaid Services ("CMS"). If any provision in the
Agreement is inconsistent with the terms of this attachment,the provisions of this attachment shall be controlling and
supersede the provisions of the Agreement for Medicare Advantage and Medicaid Members.
WHEREAS,ASH Fitness has entered into contracts with ASH Clients who offer fitness benefits as part of its Medicare
Advantage and/or Medicaid Managed Care plans which require ASH Fitness to include specific contract language in its
contract with Fitness Center;
WHEREAS,Fitness Center will be providing Services on behalf of ASH Fitness for certain Medicare Advantage and/or
Medicaid members of ASH Clients;
NOW,THEREFORE,the Parties agree to add the following provisions to the Agreement with respect to Medicare
Advantage and/or Medicaid members of ASH Clients:
1 Member Non-Liability. Fitness Center shall in no event,including insolvency of ASH Fitness,hold any member
liable for payment of any fees that are the legal obligation of ASH Fitness. This provision does not prohibit Fitness
Center from charging the member for services not covered under this Agreement,provided the member was informed
in advance and in writing of the fees to be charged. This provision shall survive termination of the Agreement. [42
C.F.R. 422.504(g)(1)(i) and 42 C.F.R. 422.504(i)(3)(i)J
2 Excluded Individuals. Fitness Center represents and warrants that Fitness Center or any person who owns more than
five percent(5%)of Fitness Center are not excluded from participation in a federal or state healthcare program,
including but not limited to,Medicare and Medicaid. Also,Fitness Center represents that it does not now employ or
contract with, and shall not in the future employ or contract with any individual excluded from participation in such
federal or state programs to provide Services to Members. Fitness Center shall check key employees and persons
employed,contracted or otherwise affiliated with Fitness Center and any person owning more than five percent(5%)
of Fitness Center against the appropriate lists upon hire or contract and monthly thereafter to determine if the persons
have been excluded from participation in a federal or state program or has been terminated for cause or default on
public transactions and public programs as well as non-reinstatement. Such lists(commonly referred to as Exclusion
Lists)include,but are not limited to, the U.S. Department of Health and Human Services Office of Inspector General
List of Excluded Individuals/Entities,the General Service Administration Lists of Parties Excluded from Federal
Procurement and Nonprocurement Programs,and state published Medicaid exclusion lists). For the purpose of this
agreement the term "key employee"refers to all employees/contractors who are (1)involved with the receipt of funds
from Members or submit claims/bills to ASH concerning services provided to Members, and(11)individuals who
lead/teach exercise classes that are specifically tailored to Members. Fitness Center shall maintain records relating to
its checks of these lists in accordance with Section 8 of this addendum. Fitness Center agrees to indemnify ASH
Fitness or ASH Clients,as applicable,for any civil monetary penalties levied against an ASH Client or ASH Fitness
as a result of(a)Fitness Center's failure to properly screen all employed,affiliated or contracted persons who provide
Services to Members and/or hold or held more than a five percent(5%)interest in Fitness Center against the
Exclusions Lists or(b)Fitness Center's permitting an individual or entity found on the Exclusions Lists to provide
Services to any Medicare Advantage Members,or otherwise be affiliated with those services,under this
Agreement. Payments received by Fitness Center in circumstances where(a)or(b)above apply are also subject to
recoupment by ASH Fitness upon request and Fitness Center agrees to comply with any such requests. If Fitness
Center is revoked or excluded from participating in Medicare,Fitness Center shall submit,within 60 days after the
effective date of the revocation or exclusion,all billing reports for services furnished prior to the CMS revocation or
exclusion date. [42 C.F.R. 422.752(a)(8)J
National Fitness Center Services Agreement-MC Page 29 of 32 01/O1/2021
Attachment G-Medicare Advantage Addendum
3 Compliance with Federal and State Law. Fitness Studio acknowledges that payments for Services hereunder are,in
whole or in part,derived from federal funds and receipt of such payment is subject to all laws and regulations
applicable to recipients of such funds. Therefore,Fitness Center shall comply with all laws and regulations applicable
to individuals and entities receiving federal funds and all other applicable federal and state laws and regulations,
including,but not limited to,those laws and regulation governing participating in the Medicare Advantage or Special
Needs Plan Programs,Title VI of the Civil Rights Act of 1964,the Age Discrimination Act of 1975, and Americans
with Disabilities Act of 1990 and the Rehabilitation Act of 1973,as well as their implementing regulations. [42
C.F.R. 422.504(h)]
4 Quality Review and Improvement.Fitness Center shall cooperate with all independent quality review and
improvement activities relating to Services being provided by Fitness Center required by ASH Fitness and/or ASH
Client's or CMS pertaining to the provision of Services. [42.CF.R. 422.204(b)(4)]
5 Member Appeals and Grievances. Fitness Center shall cooperate and comply with all ASH Fitness,ASH Clients,
and CMS requirements regarding appeals of members,including the obligation to provide information to ASH Fitness
within the timeframe reasonably requested for such purpose. [42 C.F.R. 422.562(a)]
6 Collection of Data. When requested by ASH Fitness,Fitness Center shall participate in the collection and
submission of data to CMS. Where applicable,Fitness Center shall certify the accuracy of the data collected and
submitted under this section. [42 C.F.R. 422.504(c)]
O
7 Member Records. In addition to the requirements set forth in Section 9.03 of the Agreement,to the extent any ASH
Client member records or other health and enrollment information is maintained by Fitness Center,Fitness Center
shall: 1)safeguard the privacy of any information that identifies a particular member and abide by all federal and state
laws and regulations regarding confidentiality and disclosure of all protected health information; 2)maintain member
records and information in an accurate and timely manner;and 3)ensure timely access by members to their own
records and information in accordance with federal and State laws and regulations. Information from or copies of
records may be released only in accordance with federal and state laws and regulations governing such records and
the information contained therein. [42 C.F.R. 422.1181
8 Records and Inspections.
AV4
(a) ASH Fitness and Fitness Center recognize and agree that the United States Department of Health and Human
Services(DHHS),the Comptroller General,or their designees may audit,evaluate or inspect any books,
contracts,and other records of ASH Fitness and Fitness Center that pertain to any aspect of services performed
under this Agreement for purposes of a Medicare product,or as the Secretary of DHHS may deem necessary.
ASH Fitness and Fitness Center shall retain all records related to the provision Services for a period of ten(10)
years after the final date of the contract period and shall make available their premises,physical facilities and
equipment,records related to the provision of Services or any additional relevant information that DHHS may
require. [42 C.F.R. 422.504(e)(3)1
(b) CMS,the Comptroller General,or their designees have the right to inspect,evaluate and audit ASH Fitness
and Fitness Center for a period of ten(10)years after the final date of the contract period or the completion of
an audit,whichever is later,unless: (a)CMS determines that there is a special need to retain a particular record
or group of records for a longer period and notifies ASH Fitness or Fitness Center at least thirty(30)days
before the normal disposition date; (b)there has been a termination,dispute or fraud or similar fault by ASH
Fitness or Fitness Center in which case retention may be extended to ten(10)years from the date of any final
resolution of the termination or fraud or similar fault;or(c)CMS determines that there is a reasonable
possibility of fraud,in which case it may inspect,evaluate and audit ASH Fitness and Fitness Center at any
time.[42 C.F.R. 422.504(e)(4)]
9. ASH Client Accountability. Notwithstanding anything set forth in the Agreement,Fitness Center and ASH Fitness
acknowledge and agree that,with respect to Services furnished under this Agreement for ASH Client's,ASH Clients
oversee and are ultimately accountable to CMS for any functions and responsibilities performed by Fitness Center.
National Fitness Center Services Agreement-MC Page 30 of 32 01/01/2021
Attachment G-Medicare Advantage Addendum
Fitness Center shall comply with ASH Fitness's policies and procedures as set forth in the Fitness Center Program
Manual. Such policies and procedures have been reviewed and approved by ASH Clients. Fitness Center shall
furnish Services to members consistent with the requirements of CMS and,including but not limited to,ASH
Fitness's contractual obligations to ASH Clients. [42 C.F.R. 422.504(i)(4)(iii) and 42 C.F.R. 422.1121
10. Insolvency. If,within sixty(60)days after the date of insolvency of ASH Fitness, an ASH Client provides written
notice to Fitness Center stating that,with regard to any Member who is a beneficiary, employee,member,or insured
of that ASH Client,(a)ASH Client shall pay Fitness Center,in accordance with the provisions of this Agreement,for
any billing reports submitted for Services rendered by Fitness Center to any such Member on or after the date of the
insolvency,to the extent ASH Fitness has not paid such reimbursements, and(b)ASH Client otherwise shall use its
best efforts to discharge the duties of ASH Fitness under this Agreement,or to cause ASH Fitness to discharge those
duties,with regard to any such Member,then Fitness Center shall continue to be available to render Services to those
Members and shall continue to render Services to those Members in accordance with the provisions of this Agreement
for up to six(6)months after the date of the insolvency,as specified by ASH Client.
II. Compliance Training. Fitness Center will provide its employees and any contractors directly involved in providing
Services under this Agreement the CMS Medicare Parts C &D Fraud,Waste,and Abuse Training and General
Compliance Training module posted on ASHLink within ninety(90)days of hire or contracting and annually
thereafter and allow ASH Fitness access to Fitness Center's records upon request to ensure Fitness Center is providing
the required trainings. [42 C.F.R. 422.504(h)(1)1
12. Amendment and Severability of Contracts. Notwithstanding any provision in the Agreement,this Exhibit may be
amended upon request or mandate by CMS to comply with all relevant federal and State laws and regulations and
government pronouncements.Additionally,this Exhibit shall be amended to exclude any Medicare product or State-
licensed entity specified by CMS. A separate agreement for any such excluded product or entity will be deemed to be
in place when such request is made.[42 C.F.R. 422.504(k)(1) and(2)1 `
IN 4
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National Fitness Center Services Agreement-MC Page 31 of 32 01/01/2021
Attachment G-Medicare Advantage Addendum
AMERICAN SPECIALTY HEALTH FITNESS,INC.
FITNESS CENTER SERVICES AGREEMENT
ATTACHMENT H—PROGRAM COMPENSATION
SILVER&FIT BASIC FITNESS CENTER:
The following compensation rate is for a Silver&Fit Basic Fitness Center in the Silver&Fit Program:
Standard Maximum Number of
Benefit Program Compensation Fitness Center Visits Monthly Compensation
Rate Compensated Per Maximum
Month
Silver&Fit Basic $2.50 8 20.00
SILVER&FIT FULL FITNESS CENTER:
The following compensation rate is for a Silver&Fit Full Fitness Center in the Silver&Fit Program:
Standard Maximum Number of
Benefit Program Compensation Fitness Center Visits Monthly Compensation
Rate Compensated Per Maximum .
Month
Silver&Fit Full TBD 12 TBD
ACTIVE&FIT FITNESS CENTER:
The following compensation rate is for the Active&Fit Program:
Standard Maximum Number of
Benefit Program Compensation Fitness Center Visits Monthly Compensation
Rate Compensated Per Maximum
Month
Active&Fit $3.00r ` 10 $30.00
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National Fitness Center Services Agreement-MC Page 32 of 32 01/01/2021
Attachment H—Program Compensation
ADDENDUM TO FITNESS CENTER SERVICES AGREEMENT
BETWEEN THE CITY OF FORT WORTH
AND AMERICAN SPECIALTY HEALTH FITNESS,INC.
This Addendum to Fitness Center Services Agreement ("Addendum") is entered into by and
between American Specialty Health Fitness,Inc.,a Delaware corporation("ASH Fitness") and the City of
Fort Worth("Fitness Center"),collectively the"parties",for the purpose of providing Services to Members
at Fitness Center locations.
The Contract documents shall include the following:
1. The Fitness Center Services Agreement; and
2. This Addendum.
1. Notwithstanding any language to the contrary in the attached Fitness Center Services Agreement (the
"Agreement"), the Parties hereby stipulate by evidence of execution of this Addendum below by a
representative of each party duly authorized to bind the parties hereto,that the parties hereby agree that the
provisions in this Addendum below shall be applicable to the Agreement as follows:
2.Fiscal Funding Dut.In the event no funds or insufficient funds are appropriated by Fitness Center in any
fiscal period for any payments due hereunder, Fitness Center will notify ASH Fitness of such occurrence
and the Agreement shall terminate on the last day of the fiscal period for which appropriations were received
without penalty or expense to the Fitness Center of any kind whatsoever, except as to the portions of the
payments herein agreed upon for which funds have been appropriated.
3.Attorneys' Fees. To the extent the attached Agreement requires Fitness Center to pay attorneys' fees for
any action contemplated or taken, Fitness Center objects to these terms and any such terms are hereby
deleted from the Agreement and shall have no force or effect.
Law and Venue. The Agreement and the rights and obligations of the parties hereto shall be
governed by, and construed in accordance with the laws of the United States and state of Texas,
exclusive of conflicts of laws provisions.Venue for any suit brought under the Agreement shall be
in a court of competent jurisdiction in Tarrant County, Texas. To the extent the Agreement is
required to be governed by any state law other than Texas or venue in Tarrant County, Fitness
Center objects to such terms and any such terms are hereby deleted from the Agreement and shall
have no force or effect. To the extent the Agreement requires arbitration,Fitness Center objects to
such terms and any such terms are hereby deleted from the Agreement and shall have no force or
effect.
Waiver of Jury Trial and Class Action.THE PARTIES AGREE TO WAIVE ANY RIGHT TO
A JURY TRIAL WITH REGARD TO ANY DISPUTE ARISING OUT OF THIS
AGREEMENT. EACH PARTY WAIVES ITS RIGHT TO A JURY TRIAL AND TO PURSUE
ANY CLAIM OR ACTION ON A CLASS OR CONSOLIDATED BASIS OR IN A
REPRESENTATIVE CAPACITY IN ANY COURT ACTION ARISING AMONG THE
PARTIES UNDER THIS AGREEMENT OR OTHERWISE RELATED TO THIS AGREEMENT,
WHETHER MADE BY CLAIM, COUNTERCLAIM, THIRD PARTY CLAIM OR
OTHERWISE.
Addendum Page 1 of 4
4. Insurance.The Fitness Center is a governmental entity under the laws of the state of Texas and pursuant
to Chapter 2259 of the Texas Government Code,entitled"Self-Insurance by Governmental Units,"is self-
insured and therefore is not required to purchase insurance. To the extent the Agreement requires Fitness
Center to purchase insurance,Fitness Center objects to any such provision,the parties agree that any such
requirement shall be null and void and is hereby deleted from the Agreement and shall have no force or
effect.Fitness Center will provide a letter of self-insured status as requested by ASH Fitness.
5. Sovereign Immunity_. Nothing herein constitutes a waiver of Fitness Center's sovereign immunity. To
the extent the Agreement requires Fitness Center to waive its rights or immunities as a government entity;
such provisions are hereby deleted and shall have no force or effect.
6. Limitation of Liability and Indemnity. To the extent the Agreement, in any way, limits the liability of
ASH Fitness or requires Fitness Center to indemnify or hold ASH Fitness or any third party harmless from
damages of any kind or character, Fitness Center objects to these terms and any such terms are hereby
deleted from the Agreement and shall have no force or effect. Fitness Center's obligation to indemnify
herein is subject to and limited by the requirements and limits on liability contained in Texas Civil Practice
and Remedies Code or any other applicable state law.
7.No Debt. In compliance with Article 11 § 5 of the Texas Constitution, it is understood and agreed that
all obligations of Fitness Center hereunder are subject to the availability of funds. If such funds are not
appropriated or become unavailable,Fitness Center shall have the right to terminate the Agreement except
for those portions of funds which have been appropriated prior to termination.
8. Confidential Information. Fitness Center is a government entity under the laws of the State of Texas and
all documents held or maintained by Fitness Center are subject to disclosure under the Texas Public
Information Act. To the extent the Agreement requires that Fitness Center maintain records in violation of
the Act,Fitness Center 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,Fitness Center shall promptly notify ASH Fitness. It will be the responsibility
of ASH Fitness to submit reasons objecting to disclosure. A determination on whether such reasons are
sufficient will not be decided by Fitness Center,but by the Office of the Attorney General of the State of
Texas or by a court of competent jurisdiction.
9. Addendum Controlling. If any provisions of the attached Agreement,conflict with the terms herein, or
are prohibited by applicable law,the terms in this Addendum shall control.
10. Immigration Nationality Act. ASH Fitness shall verify the identity and employment eligibility of its
employees who perform work under this Agreement, including completing the Employment Eligibility
Verification Form (I-9). Upon request by Fitness Center, ASH Fitness shall provide Fitness Center with
copies of all I-9 forms and supporting eligibility documentation for each employee who performs work
under this Agreement. ASH Fitness shall adhere to all Federal and State laws as well as establish
appropriate procedures and controls so that no services will be performed by any ASH Fitness employee
who is not legally eligible to perform such services. ASH FITNESS SHALL INDEMNIFY FITNESS
CENTER AND HOLD FITNESS CENTER HARMLESS FROM ANY PENALTIES,LIABILITIES,
OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY ASH FITNESS, OR ASH
Addendum Page 2 of 4
FITNESS'S EMPLOYEES. Fitness Center, upon written notice to ASH Fitness, shall have the right to
immediately terminate this Agreement for violations of this provision by ASH Fitness.
11.No Boycott of Israel. If ASH Fitness has fewer than 10 employees or the Agreement is for less than
$100,000, this section does not apply.ASH Fitness acknowledges that in accordance with Chapter 2270
of the Texas Government Code,Fitness Center is prohibited from entering into a contract with a company
for goods or services unless the contract contains a written verification from the company that it: (1)does
not boycott Israel;and(2)will not boycott Israel during the term of the contract. The terms"boycott Israel'
and "company" shall have the meanings ascribed to those terms in Section 808.001 of the Texas
Government Code. By signing this Addendum, ASH Fitness certifies that ASH Fitness's signature
provides written verification to Fitness Center that ASH Fitness: (1) does not boycott Israel; and(2)
will not boycott Israel during the term of the Agreement.
12.This Addendum shall survive the completion of or any termination of the Agreement or other document
which may accompany the Agreement or be incorporated by reference.
13. This Addendum has the effective date of the Agreement.
(signature page follows)
Addendum Page 3 of 4
Signature: � �C i
Email: sheri.endsley@fortworthtexas.gov
ACCEPTED AND AGREED:
CITY OF FORT WORTH:
Contract Compliance lTanager:
By signing I acknowledge that I am the person
responsible for the monitoring and administration
By: of this contract; including ensuring all
Naine: Jesica McEachern performance and reporting requirements.
Title: Assistant City Manager
Date. Oct 25, 2022 �f
By:
Name: Sheri Endsley
Approval Recommended, Title: District Superintendent
�]
Park & Recreation Department
By: Aq,y fa-� Approved as to Form and Legality:
Name: Dare Lewis
Title: Acting Director
Park & Recreation Department JLL
By: Ni-An-fo[t19,2022 U14CI
Name: Nico arias
By: Title: Assistant City Attorney
Name: Kelli Pickard
Title: Assistant Director Contract Authorization:
Park S& Recreation Department -M&C: NIA
Form 1295: NIA
Attest:
apF°F°Rr�yaa
By: J ette S.Goodall(Oct 25,202215: CDT) 00000000000.
° o°.0
�
Name: Jannette S. Goodall P�o °a-d0
Title: City Secretary 0v o o=d
00
°0000000° .d
ASH FITNESS: ��nEXp5��p
American Specialty Health Fitness, Inc.
By:
Name: George DeVries
Title: Founder and CEO
Date: 9/15/2022
OFFICIAL RECORD
CITY SECRETARY
FT.WORTH, TX
Addendum Page 4 of 4