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HomeMy WebLinkAbout2020-09-08-J01H Public Safety Health EAPCITY OF WAUKEE, IOWA CITY COUNCIL MEETING COMMUNICATION MEETING DATE: September 8, 2020 AGENDA ITEM:Consideration of approval of a resolution adding an Employee Assistance Program benefit for public safety employees [Responder Health/Armor Up America] FORMAT:Consent Agenda SYNOPSIS INCLUDING PRO & CON: Following a review of current benefits offered by the City to its employees, City staff recommends adding an Employee Assistance Program benefit for all public safety employees. This addition would be effective upon agreement signatures of all parties. FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS: Fiscal impact would be approximately $2800 annually. COMMISSION/BOARD/COMMITTEE COMMENT: STAFF REVIEW AND COMMENT: Staff recommends approval of the addition of responder Health/Armor Up America Employee Assistance Program, for public safety employees. RECOMMENDATION: Approve the resolution. ATTACHMENTS: I. Proposed Resolution II. Armor Up America Consulting Agreement III. Responder Health Scope of Services IV. Joyages Program Agreement PREPARED BY:Michelle Lindsay REVIEWED BY: AGENDA ITEM: J1H THE CITY OF WAUKEE, IOWA RESOLUTION 2020- ADDITION TO CITY OF WAUKEE PUBLIC SAFETY EMPLOYEE BENEFITS [RESPONDER HEALTH/ARMOR UP AMERICA] IN THE NAME AND BY THE AUTHORITY OF THE CITY OF WAUKEE, IOWA WHEREAS, the City of Waukee, Dallas County, State of Iowa, is a duly organized Municipal Organization; AND, WHEREAS, following a review of employee benefits, the City Administrator and Human Resource Director, along with the Police Chief and Fire Chief, recommend adding an Employee Assistance Program for all public safety employees (Responder Health/Armor Up America); AND, WHEREAS, Responder Health/Armor Up America is a comprehensive crisis referral service for all public safety employees, as well as their family members, and offers an on-demand application through Joyages that focuses on building daily personal development habits; AND, WHEREAS, the Responder Health/Armor Up America program shall go into September 8, 2020; NOW THEREFORE BE IT RESOLVED by the City of Waukee City Council in session this 8th day of September 2020, that the addition of an Employee Assistance Program, Responder Health/Armor Up America for all public safety employees is hereby approved and shall go into effect on September 8, 2020. ____________________________ Courtney Clarke, Mayor Attest: ___________________________________ Rebecca D. Schuett, City Clerk RESULTS OF VOTE: AYE NAY ABSENT ABSTAIN Anna Bergman R. Charles Bottenberg Chris Crone Larry R. Lyon Ben Sinclair Armor Up America Consulting Agreement THIS ARMOR UP AMERICA CONSULTING AGREEMENT (the “Agreement”) is entered into as of _September 8, 2020, by and between City of Waukee, Iowa, a municipal corporation organized under the laws of the State of Iowa, hereinafter referred to as "CLIENT," and Armor Up America, a limited liability company incorporated in West Virginia, hereinafter referred to as "CONSULTANT." WITNESSETH: In consideration of the promises and mutual covenants hereinafter contained, the parties hereto agree as follows: 1.Services The CONSULTANT shall perform the scope of services set out in Exhibit "A" (“Services”) and is incorporated herein. 2.Compensation CLIENT shall pay CONSULTANT a fee of three dollars and fifty cents ($3.50) per individual first responder per month who is employed by the CLIENT and is covered under the scope of this Agreement during the Initial Term for the Services as specified in Exhibit "A." 2.1.CONSULTANT shall submit invoices to CLIENT on a monthly basis. CLIENT shall then pay the CONSULTANT the total amount of the statement which is due within thirty (30) days of receipt. All payments made under this Agreement shall be made from currently available funds. CLIENT may elect to make one upfront payment for a full year of services if this is preferable to monthly payments. 2.2.CONSULTANT must give written notice that the Services have been completed or substantially completed, and CLIENT shall make a final inspection of the Services, and if the Services are found to be completed or substantially completed in accordance with this Agreement, CLIENT upon the receipt of invoice shall pay CONSULTANT within thirty (30) days the balance due CONSULTANT under the terms of this Agreement. 2.3.In the event CLIENT should request additional services not set forth in Exhibit "A," CONSULTANT and CLIENT shall agree on the compensation for those services prior to performance by CONSULTANT. Performance of these additional services may be within or without the term of the contract set forth in Section 5 of this Agreement. Under no circumstances will CONSULTANT perform additional services without prior written authorization from CLIENT. CONSULTING AGREEMENT PAGE 2 3.Confidential Relationship and Media Coverage 3.1.CLIENT may from time to time communicate to CONSULTANT certain information to enable CONSULTANT to effectively perform the Services. CONSULTANT shall treat all such information as confidential, whether or not so identified, and shall not disclose any part thereof without the prior written consent of CLIENT. CONSULTANT shall limit the use and circulation of such information, even within its own organization, to the extent necessary to perform the Services. The foregoing obligations of this Section 3, however, shall not apply to any part of the information that (i) has been disclosed in publicly available sources of information, (ii) is, through no fault of CONSULTANT, hereafter disclosed in publicly available sources of information, (iii) is now in the possession of CONSULTANT without any obligation of confidentiality, or (iv) has been or is hereafter rightfully disclosed to CONSULTANT by a third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party. 3.2.CONSULTANT shall not disclose any reports, recommendations, conclusions, or other results of the Services, the existence of, or the subject matter of this contract without the prior written consent of CLIENT. 3.3.In its performance hereunder, CONSULTANT shall comply with all legal obligations it may now or hereafter have respecting the information or other property of any other person, firm, or corporation. 3.4.CONSULTANT will not provide any public statements, press releases, articles, writings or materials to the any media outlet, including but not limited to, newspapers, social media, websites, blogs, magazines, or TV stations, which refers to the CLIENT, or any of the services provided by CONSULTANT to CLIENT, under this Agreement without the prior written authorization of the CLIENT. Requests for prior written approval of such releases, public statements, articles, writings or materials shall be directed to the CLIENT’s Director of Corporate Communications. This provision is intended to survive the expiration or termination of the Agreement. 4. Privacy Protection The parties acknowledge that, in connection with providing the Services, CONSULTANT may receive and analyze health information about CLIENT’S employees, their partners or spouses (“Participants”) that may constitute “protected health information” or “PHI,” as those terms are defined in HIPAA. Participants may submit PHI directly to CONSULTANT, in which event CONSULTANT shall obtain written, HIPAA-compliant authorizations from Participants (“Authorizations”). CONSULTANT covenants and agrees that: (i) it will use the PHI solely in connection with its delivery of the Services and in a manner that is consistent with the Authorizations; (ii) it will not disclose or otherwise provide access to the PHI to anyone other than its employees, agents, contractors, or affiliates who need to access or use it to deliver the Services, each of whom will be bound by these restrictions and conditions; and (iii) it will take reasonable measures to prevent unauthorized access to the PHI by establishing and enforcing administrative, physical and technical safeguards. CONSULTING AGREEMENT PAGE 3 4.Proprietary Rights 4.1 The work product of the Services, and any writings, discoveries, inventions, and innovations or data resulting from the Services, shall, upon written request of the CLIENT, be promptly communicated to, and be the property of CLIENT; provided that, any such information subject to applicable confidentiality laws shall be treated in accordance therewith. Nothing in this section shall be construed to require the CONSULTANT to provide personally identifiable information about any individual. 4.2 As instruments of service, all documents, including original drawings, estimates, and notes shall be available for use by CONSULTANT named herein. 5.Term 5.1 This Agreement shall commence on September 8, 2020_ and terminate on _September 7, 2021_ (the “Initial Term”). The CLIENT may terminate this Agreement upon thirty (30) days written notice to the CONSULTANT. In the event this Agreement terminates prior to the completion of the Services for reasons other than for cause, payment shall be made for services performed through the effective termination date. This payment shall be the CLIENT's sole obligation to the CONSULTANT. In addition, upon termination or expiration of this Agreement, CONSULTANT shall return to CLIENT any and all equipment, documents, or materials, and all copies made thereof, which CONSULTANT received from, and/or developed for CLIENT for the purposes of this Agreement. 5.2 Upon the expiration of the Initial Term or the expiration of the immediately preceding renewal term (hereinafter defined), CLIENT and CONSULTANT may mutually agree in writing to extend this Agreement for two additional periods of twelve (12) months each (collectively, the “Renewal Terms”). All Renewal Terms shall be subject to all of the same terms and conditions of this Agreement and shall be subject to the annual appropriation of funds by the CLIENT. 6.Right to Audit The CLIENT, at its own expense, shall have the right at all reasonable times during normal business hours and upon at least twenty-four (24) hours advance notice, to audit, to examine, and to make copies of or extracts from the books of account and records maintained by CONSULTANT with respect to the Services. If such audit shall disclose overpayment by CLIENT to CONSULTANT, written notice of such overpayment shall be provided to CONSULTANT and the amount of overpayment shall be promptly reimbursed by CONSULTANT to the CLIENT. In the event any such overpayment is not paid within ten (10) days after receipt of such notice, the unpaid amount of such overpayment shall bear interest at the rate of one percent (1%) per month from the date of such notice until paid. CONSULTING AGREEMENT PAGE 4 7.Insurance CONSULTANT at their own expense shall procure and maintain for the duration of the proposed contract, insurance against claims for injuries to persons or damages to property which may arise from, or in connection with, the performance of the work hereunder by the CONSULTANT, their agents, representatives, employees, or subcontractors. Said insurance shall be in type(s) and minimum(s) listed below: A. Workers’ Compensation and Employers’ Liability Workers’ Compensation Insurance with statutory limits as required by the Labor Code of the CLIENT’s Governing State. Workers’ Compensation coverage shall be based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements which meet the statutory requirements of the CLIENT’s governing Labor Code and shall apply to all employees of the contractor providing services under the proposed contract. Sole Proprietors may request a waiver of this requirement if they have no employees. If services under this contract will not be performed on CLIENT property, the CONSULTANT may submit a written request for exemption from this requirement. B. Professional Liability Professional Liability Insurance for the rendering of or failure to render professional services with minimum limit of $1,000,000 per occurrence. Aggregate Policy minimum limit is $1,000,000. A “claims made” policy is acceptable coverage which must be maintained during the course of the project and up to three (3) years after completion and acceptance of the project by the CLIENT. Coverage including any renewals shall have the same retroactive date that is applicable to the policy. 8.General Provisions for all Insurance Coverage •Scope These provisions apply to all contracted CONSULTANTS unless specifically exempted in the proposed contract. Coverage shall state that the CONSULTANT’s insurance shall apply separately to each insured against whose claim is made, or suit is brought, except to the limits of the insured’s liability. •Coverage Application CONSULTANT’s insurance must be primary as respect to the CLIENT, its officers, employees, elected officials, appointees, and volunteers and noncontributory with any other insurance, including self- insurance, maintained by the CLIENT for its benefit. Any failure to comply with reporting provisions of the policy shall not affect coverage provided to the CLIENT. CONSULTING AGREEMENT PAGE 5 •Deductibles and self-insured retentions Any deductibles or self-insured retentions must be disclosed to the CLIENT. The CLIENT reserves the right to review the insurance obtained by the CONSULTANT, in comparison to the requirements specified in this section. •Coverage continuation and cancellation In the event any insurance policy shown on the certificate(s) of insurance has an expiration date prior to the completion of the contract, the CONSULTANT shall furnish the CLIENT proof of identical continued coverage no later than thirty (30) days prior to the expiration date shown on the certificate. Failure to maintain continuous coverage during the term of the proposed contract, or failure to provide proof of coverage at any time during the term of the contract, may result in cessation of work and/or termination of the contract. •Subrogation CONSULTANT must waive all rights of subrogation against the CLIENT for bodily injury (including death), property damage, or any other loss arising from work performed by the CONSULTANT for the CLIENT. •Responsibility Approval, disapproval, or failure to act by the CLIENT regarding any insurance supplied by the CONSULTANT or its subcontractors shall not relieve the CONSULTANT of full responsibility or liability for damages and accidents as set forth in the contract documents. •Payment of Premiums Companies issuing insurance policies shall have no recourse against the CLIENT for payment of any premiums or assessments for any deductibles which are the sole responsibility and liability of the CONSULTANT. •Proof of Insurance The CLIENT reserves the right to request proof of insurance at any time. CONSULTING AGREEMENT PAGE 6 9.Notices All notices and billings shall be in writing and sent to the following addresses: To CLIENT: Toni Coughlin 236 W Hickman Rd Waukee, IA 50263 515-978-7379 To CONSULTANT: Armor Up America 1107 9th Street, Suite 880 Sacramento, CA 95814 916-862-0941 10.Non-Discrimination CONSULTANT will not discriminate against any Participant because of race, color, sex, national origin, religion, age, handicap, or veteran status. CONSULTANT will, where appropriate or required, take affirmative action to ensure that Participants are treated without regard to their race, color, sex, or national origin, gender identity, sexual orientation, religion, age, handicap, or veteran status. 11.Hold Harmless CONSULTANT agrees to indemnify and hold harmless the CLIENT, its officers, agents, and employees from any and all claims, settlements, and judgements, to include all reasonable investigative fees, attorney’s fees, and court costs for any damage or loss which is due to or arises from a breach of this Agreement, or from negligent acts, errors or omissions in the performance of Services under this Agreement and those of its sub consultants or anyone for whom CONSULTANT is legally liable. CONSULTING AGREEMENT PAGE 7 12.Assignment CONSULTANT shall not assign or otherwise transfer this Agreement or any right or obligations therein without first receiving prior written consent of the CLIENT. 13.Miscellaneous 13.1 The terms and conditions of Sections 3, 4, 6, and 7 hereof shall survive the termination of this Agreement or completion of the Services, as the case may be. 13.2 CONSULTANT shall perform the Services as an independent contractor and shall not be considered an employee of CLIENT for any purpose whatsoever, including, but not limited to, entitlement to CLIENT employee benefits. CONSULTANT hereby expressly waives any claim or entitlement to such benefits. 13.3 In the conduct of the services contemplated hereunder, the CONSULTANT shall comply with applicable state, federal, and local law, rules, and regulations. 13.4 CONSULTANT shall not export, directly or indirectly, any technical data acquired from under this Agreement or any products utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other government approval without first obtaining such license or approval. 13.5 The waiver or failure of either party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement. 13.6 If any provision of this Agreement is invalid, illegal, or unenforceable under any applicable statute, court decision, or rule of law, it is to that extent to be deemed omitted. The remainder of the Agreement shall be valid and enforceable to the maximum extent possible. 13.7 This Agreement shall be governed by the laws of Iowa. Venue of any action arising from this Agreement shall be in Polk County, Iowa. 13.8 This Agreement may not be modified, altered or amended except by written instrument duly executed by both parties, except that a party may change its address for notices by providing written notice to the other party. 13.9 The above shall constitute the entire understanding between CONSULTANT and CLIENT respecting the Services described herein. 13.10 Title to articles, paragraphs, and subparagraphs are for information purposes only and shall not be considered a substantive part of this Agreement. CONSULTING AGREEMENT PAGE 8 IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first above written. CITY OF WAUKEE CONSULTANT By: By: Samantha Corbin, ED, Armor Up America EXHIBIT A SCOPE OF SERVICES First Responder Health and Wellbeing Armor Up America, LLC, is proud to offer the CITY OF WAUKEE the following scope of services for their First Responder employees and dependents. This Scope of Services includes support for the following benefit plans and programs: I.Safe Call Now Services A.Access to a 24/7 crisis hotline that is manned by First Responders B.Information regarding and access to fully vetted mental health and substance abuse facilities nationwide C.Access to clear and consistent rates for mental health and substance abuse facilities nationwide, as negotiated through partners D.Emotional Body Armor training for all First Responders II.Peer Support Program Guidance and Support A.Evaluate the current Peer Support program B.Provide best practices and SOP's (as requested) for the current Peer Support program C.Provide onsite training (as requested) D.Coordination and promotion of Safe Call Now and other support services tailored for first responders and their families E.Access to Serve and Protect telephonic counseling (unlimited visits at no cost) 0 Scope of Services 08/12/2020 PREPARED BY RESPONDER HEALTH 12712 PARK CENTRAL DRIVE, SUITE 100 | DALLAS, TEXAS 75251 CONFIDENTIAL: NOT FOR DISTRIBUTION PAGE 1 Responder Health, a division of ACAP Health Consulting, LLC, is pleased to offer City of Waukee a first responder support program. The following agreement outlines the scope of services to be provided. This Scope of Services includes support for the following benefit plans and programs: Mental Health: Prevention, Intervention, Aftercare Responder Health will provide instruction for best practice strategies to ensure City of Waukee’s first responders have access to best in class and appropriate assistance solutions. Training for Peer Support teams will be provided to help build a successful internal infrastructure for each department. Responder Health will connect City of Waukee with tools and resources to close gaps in care by providing first responders a three-part mental health solution that all build upon and work cyclically with each other: Prevention, Intervention, and Aftercare. Prevention We utilize national organizations which have local representatives in each state, most of whom are either current or former first responders themselves, that are available for first responders and their families to contact whenever they have a concern, whether it be about their personal or professional life. Responder Health will help departments train and/or establish an internal peer support program. This program will certify individuals of the department who will act as the Peer Support Team. These individuals are CISM trained and prepared to help with various concerns brought to their attention by their peers. Joyages, an ACAP Health Consulting, LLC product, is available to both first responders and their families. Joyages is an on-demand app that teaches individuals skills for dealing with life’s daily stressors. It offers 24/7 access to developmental resources, personalized support from licensed providers, and crisis resources. Responder Health Wellness and Prevention Confidential Crisis Hotline and Local Counseling First Responder Wellness and Prevention Training Insurance Support Services Carrier network implementation Contract Negotiations Additional Benefits First Responder Ancillary Programs Biometric and Pharmacogenetic Testing CONFIDENTIAL: NOT FOR DISTRIBUTION PAGE 2 Intervention Responder Health connects customers with Safe Call Now’s confidential crisis hotline. All call takers are CISM trained and have at least 5 years of experiences. Safe Call Now is a third-party vendor based out of Washington and all calls are bound by the strictest confidentiality laws in the nation. When an individual needs inpatient treatment, Safe Call Now’s team works to authorize and coordinate the intake process at one of their national vetted first responder facilities. Each year, Safe Call Now conducts an extensive inpatient treatment vetting process and treatment facilities are certified as centers of excellence for first responders. These facilities specialize in treating first responders, and Safe Call Now continually monitors them to ensure they maintain the specific standards to promote the highest quality of care. Once an individual is inpatient for treatment, Safe Call Now’s clinical team routinely connects with the treatment facility and makes sure the established treatment protocols are being followed. Safe Call Now has negotiated a competitive bundled case rate for all inpatient stays at these vetted facilities. If you are a self-funded medical plan, you can have your TPA load in this bundled rate. We will work with you and your medical carrier/TPA as needed to facilitate and build out the negotiated case rates for treatment services. Aftercare Responder Health also connects customers with Serve & Protect – a third-party organization that specializes in finding vetted counselors for First Responders locally. Serve and Protect also helps to coordinate care for the family while an individual is in treatment. This allows both the family and individual to receive simultaneous assistance. Simultaneous treatment for the family, helps to ensure that the individual’s transition out of a treatment facility is as smooth as possible. On average, this counseling lasts for about a six-month period to ensure the individual is receiving all the assistance they need, and this dramatically decreases their chance of undergoing a relapse and having to be re-institutionalized. These three components - Prevention, Intervention, and Aftercare are represented in the flow chart below. The components that focus on prevention are colored in red, intervention in blue, and aftercare in green. Responder Health Clinical Support Acute Care (Safe Call Now – Staffed by First Responders) In Patient care Aftercare for patient Family Care Aftercare for Family Local Counseling (Serve and Protect – Staffed by First Responders) Vetted Counselor Unlimited Telephonic Face to Face as needed Local Peer Support Training Peer Support Training Wellness, Resiliency, PTSD and Stress training CONFIDENTIAL: NOT FOR DISTRIBUTION PAGE 3 Clinical Services Responder Health, through preferred arrangements, offers various cancer insurance plans that can be tailored to help with early identification of cancer and payment for treatment. In addition, Responder Health offers access to first responder specific cardiovascular screenings and programs with a focus on improving overall physical health, which will help prevent the early development of a serious heart disease. Other testing services that can be included in City of Waukee’s Responder Health solution include pharmacogenetic testing. This test can allow physicians to determine a patient’s genetic makeup and how that will affect an interaction with a specific medication. In addition, genetic testing for depression drugs is a new approach to selecting medications that have value, especially in patients with treatment-resistant depression. Responder Health is dedicated to continuing to find the best in class clinical services for individuals covered by this program. Additional clinical services are available either through Responder Health or a third party at an additional cost. These services are not included in the core scope of services. For an estimated cost of each additional service, please speak to your Responder Health consultant. Ancillary Services Responder Health has also carefully evaluated various ancillary services for their relevance to first responders. These services include products such as gunshot benefits, financial wellness coaching, marital counseling, PTSD and mental health worksite products, just to name a few. Responder Health will continually review this list of products and will expand upon them over time to broaden the scope of first responder specific programs to City of Waukee, to ensure they continue to exceed our standards for what is considered baseline care for first responders. Additional ancillary services are available either through Responder Health or a third party at an additional cost. These services are not included in the core scope of services. For an estimated cost of each additional service, please speak to your Responder Health consultant. CONFIDENTIAL: NOT FOR DISTRIBUTION PAGE 4 Pricing Our base scope of services includes our Intervention, Prevention and Aftercare services. Joyages and our insurance support services are also included within our core services. Costs for actual inpatient treatment is not covered within the core services cost. Responder Health will work with City of Waukee in evaluation and implementation for clinical and ancillary services outside the basic scope of services. Actual costs of these programs will vary. Program fees are included in Armor Up America and will not be charged separate to the Customer. Should the customer terminate their relationship with Armor Up America, the cost of Responder Health will be $3.50 per covered first responder per month. This includes coverage for the first responder and their family. If City of Waukee is not satisfied with our work, you may terminate the relationship with Responder Health at any time. City of Waukee Responder Health a division of ACAP Health Consulting, LLC 236 W Hickman Rd Waukee, IA 50263 12712 Park Central Dr, Suite 100 Dallas, TX 75251 By: By: Title: ________________________ Title: Date: ________________________ Date: 1 JOYAGES PROGRAM AGREEMENT This Wellness Program Agreement (“Agreement”) is made and entered into effective as of September 8, 2020 (“Effective Date”), by and between ACAP Health Consulting, LLC (“Vendor”), and City of Waukee, Iowa (“Customer”). Vendor and Customer may be referred to collectively as “Parties” or individually as a “Party” to this Agreement. RECITALS WHEREAS, Vendor has created, owns or has secured the right to use, distribute and sublicense the Joyages brain health intervention program (the “Program”), including but not limited to (i) certain trademarks, service marks, logos, trade dress and other distinctive brand features of Joyages that are part of and used in connection with the Program; (ii) certain video presentations, manuals, website and app content, emails and other materials developed by Vendor for the Program (the “Curriculum”); and (iii) a mobile app established and maintained by Vendor that permits Participants to access, display, perform and use the Program’s app-based services (the “Program App”) (collectively, the “Joyages Information”); WHEREAS, Vendor also provides reports and other related services (collectively, the “Services”) to employers that offer the Program to their workforce members, so that employers can track and evaluate the Program’s impact on employee health and employer health care costs; WHEREAS, Customer wishes to provide active police, fire, and emergency dispatch employees (collectively “First Responders”) of Customer then enrolled in Customer’s medical insurance program (“Eligible Employees”) and their eligible partners or spouses with the Program to encourage a healthy lifestyle amongst said Eligible Employees and their eligible partners or spouses who enroll in the Program (“Participants”); and WHEREAS, subject to the conditions set forth in this Agreement, Vendor is willing to provide Services, a copy of any physical Program materials, and the Program to Participants in exchange for Customer’s payment to Vendor of agreed fees; NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: AGREEMENT 1. Right of Customer to Use Trademarks and Joyages Information. a. Subject to Customer’s strict compliance with all terms, conditions, and restrictions of this Agreement, Vendor hereby grants to Customer: i. a non-exclusive, non-transferable right to use the Joyages Information to promote, advertise, market, identify and describe the Program to Eligible Employees and their eligible partners or spouses; and ii. a non-exclusive, non-transferable right to grant Participants the right to access and use the Program for the intended purpose of the Program. b. All patents, trademarks, trade dress, right of publicity, copyrights, design rights, trade secrets and other intellectual property rights in the Joyages Information, the Services and Vendor's Confidential Information (as defined herein) are and shall remain the exclusive property of Vendor. Nothing herein shall be construed as granting any right, title or 2 interest in or to the Joyages Information or the Services, other than those rights expressly granted in this Section 1. c. Except as expressly provided by the terms of this Agreement, Customer shall not use, reproduce, modify, distribute, display, perform or create derivative works of the Joyages Information without the express, written consent of Vendor. 2. No Trademark License. Except for Customer’s use of the Joyages Information as expressly authorized in this Agreement or as otherwise expressly authorized in writing by Vendor, Customer has no right or license to use or license the use of any of Vendor’s names, trademarks, service marks, logos, emblems and other indicia of origin for any purpose whatsoever. Customer agrees to permit Vendor to reference Customer name and logo upon Customer’s prior written consent and according to Customer marketing guidelines and for legitimate business purposes including, but not limited to, Joyages website, app, and collateral materials. Customer agrees to consider reasonable requests for (a) serving as a reference, (b) collaborating on press releases regarding services, and (c) collaborating on case studies or other marketing collateral showcasing the outcomes of agreed upon services. To be clear, except as may be required by law, neither party may issue any press release or make any announcement in relation to this Agreement without the prior written consent of the other party. 3. Presentation of the Program and Scope of Services. a. Vendor is solely responsible for presenting and implementing the Program in such manner as it deems appropriate, subject to mutually accepted guidelines, to ensure satisfactory delivery. In addition to the Curriculum, and except as otherwise expressly agreed herein, Vendor will present the Program by mobile application accessed by Participants directly via their smartphone or other technologies. b. Vendor represents and warrants to Customer that (a) Vendor has the necessary experience and resources to perform the Services contemplated by this Agreement, (b) Vendor has all licenses and/or other authorizations necessary for it to legally perform its obligations under this Agreement, and (c) Vendor will provide all Services under this Agreement in a professional and workmanlike manner using generally accepted industry standards and practices. 4. Program Fees. a. Program Fees are included within the Responder Health program fee costs and will not be charged separate to the Customer. Should the Customer terminate their relationship with Responder Health and wish to continue the Joyages program, the cost of the program will be $5.00 per Participant per month. This same fee shall apply for any additional employees if Customer chooses to expand the Program to non-First Responder employees. b. Customer represents and warrants to Vendor that it shall receive no revenue or other material consideration of any kind in connection with providing the Program to Participants, and shall not charge its employees or any third party any fees for participating in the Program. Penalties charged to Participants, or recoupment of expenses by the employer from Participants, however, will not be considered revenue or material consideration under this paragraph. Customer’s breach of this representation and warranty will constitute a material breach of this Agreement. 5. Term and Termination. 3 a. Term. The term of this Agreement shall commence on the Effective Date and end on September 7, 2021 (“Initial Term”). Unless terminated as provided herein, this Agreement may be renewed for additional one (1) year periods (each, a “Renewal Term”) upon the written mutual agreement of Customer and Vendor (the Initial Term and each Renewal Term are referred to herein collectively as “Term”). b. Termination for Convenience. Either Party may terminate this Agreement or any extension thereof and the licenses granted herein without liability except as provided herein, after thirty (30) days advance written notice to the other Party. c. Termination for Change of Ownership. Vendor may elect to terminate this Agreement immediately if the direct or indirect ownership or control of Customer that exists on the date of this Agreement changes in any material manner. d. Termination for Insolvency. Either Party may elect to terminate this Agreement immediately if the other Party ceases to conduct business in the normal course, files a petition in bankruptcy, becomes insolvent, enters into suspension of payments, moratorium, reorganization or bankruptcy, makes a general assignment for the benefit of creditors, admits in writing its inability to pay debts as they mature, suffers or permits the appointment of a receiver for substantially all of its business or assets, or avails itself of or becomes subject to any other judicial or administrative proceeding that relates to insolvency or protection of creditors' rights, or institutes any proceedings for the liquidation or winding up of the business or for the termination of its corporate charter. e. Termination for Default. Either Party may terminate this Agreement upon notice to the other Party if the other Party defaults in the performance of or compliance with any material provision of this Agreement and such default continues without cure for a period of thirty (30) days after notice. f. Effect of Termination. Expiration or termination of this Agreement or any license by either Party shall not affect, the accrued rights of the Parties arising in any way out of this Agreement as of the date of termination or limit either Party from pursing any other remedies available to it. The Parties’ rights and obligations under Sections 6, 8, 9, 10, 11, 15, and 16 shall survive termination of this Agreement. g. Rights and Obligations Upon Termination. Upon termination or expiration of this Agreement, Customer (i) shall have no further right or license to the Joyages Information; (ii) must promptly cease any and all use, distribution, display, presentation, promotion, advertisement, marketing, identification, description and sublicensing of such Joyages Information; and (iii) must promptly confirm destruction or return all Joyages Information to Vendor at Customer’s expense. h. Treatment of Incomplete Participant Enrollments Upon Termination. Notwithstanding anything herein to the contrary, upon termination or expiration of this Agreement for any reason, the Parties agree that Vendor shall continue to make the Program available to Participants receiving the Program prior to the termination date of the Agreement. Any such post-termination delivery of the Program to such Participants shall be in accordance with the terms of this Agreement, and amounts due and payable hereunder by Customer as relate to such Participants shall be paid in accordance with the terms hereof. The provisions of this Agreement shall continue in effect after the effective date of termination only with respect to such Participants’ enrollments and participation in the Program and only for the duration of such Participants’ enrollments. 4 6. Confidential Information.The Parties acknowledge that in connection with this Agreement either Party may provide, and the other Party may acquire and make use of, certain Confidential Information of the disclosing Party. a. As used herein, “Confidential Information” shall mean confidential or proprietary data or information of either Party and its affiliates that is disclosed in oral, written, graphic, machine recognizable, sample or any other form, by one Party to the other Party and which is clearly designated or marked as confidential or proprietary or which is disclosed under such circumstances as the receiving Party should reasonably understand that the information is intended to be treated as confidential. Confidential Information includes, but is not limited to, trade secrets, patents, customer and supplier lists, product designs and pricing information, processes, formulas, business plans, consumer information, product licensing plans, production plans and protocols, systems architecture, technology, data, and methods. Confidential Information includes any information that may be derived from or developed as a result of access to all notes, reports, evaluative materials, analyses or studies regarding or relating to the Confidential Information. Notwithstanding anything to the contrary herein, the receiving Party shall have no obligation to preserve the confidentiality of any information that (i) is or becomes publicly available, by other than unauthorized disclosure by the receiving Party; (ii) is distributed to third parties by the disclosing Party without restriction; (iii) is received rightfully and without confidential limitation by the receiving Party from a third party; or (iv) is disclosed to a governmental authority lawfully demanding Confidential Information, provided that the disclosing Party promptly provides prior written notice to the other Party to the extent not prohibited by law and confidentiality is otherwise maintained by the Parties after such disclosure. b. The receiving Party shall not use such Confidential Information except in connection with the performance of Services pursuant to this Agreement, or divulge the Confidential Information to any third party, unless the disclosing Party consents in writing to such use or divulgence or such disclosure is required by law. In the event either Party receives a request or demand from a third party for the disclosure of Confidential Information, the Party receiving such request or demand shall promptly (within two (2) business days after receipt of such request or demand) provide written notice to the other Party of such request or demand, including a copy of any written document of such request or demand. Upon expiration or termination of this Agreement, neither Party shall take or retain, without prior written authorization, any Confidential Information of the other Party or copies thereof in any form or medium of any kind. Notwithstanding the foregoing, the receiving Party may retain archival copies of the Confidential Information as is required to comply with applicable law, regulation, professional standard or corporate retention policy or in the event of any dispute between the parties; provided that, any such retained Confidential Information will remain subject to the terms and conditions of this Agreement notwithstanding its termination unless and until such copies are returned or destroyed in accordance with the applicable law, regulation, standard, policy or otherwise. 7. No Provision of Medical Care or Advice. Customer understands and agrees that Vendor’s presentation of the Program and Curriculum is not the provision of medical care or advice to Customer, Customer’s officers, directors, employees or Participants of the Program. The Program and the Curriculum are informational in scope and are not a substitute for the sound independent medical judgment of a physician or any other health care provider. Customer, Customer’s officers, directors, employees or Participants of the Program and recipients of the Curriculum are instructed to consult with a physician or health care provider if Customer, or any of the other individuals identified in this section, have any questions or concerns regarding a medical condition. 5 8. Privacy Protection. The Parties acknowledge that, in connection with providing the Services incident to the Program, Vendor may receive and analyze health information about Participants that may constitute “protected health information” or “PHI,” as those terms are defined in HIPAA. Participants may submit PHI directly to Vendor, in which event Vendor shall obtain written, HIPAA- compliant authorizations from Program Participants (“Authorizations”). Vendor covenants and agrees that: (i) it will use the PHI solely in connection with its delivery of the Services and in a manner that is consistent with the Authorizations; (ii) it will not disclose or otherwise provide access to the PHI to anyone other than its employees, agents, contractors or affiliates who need to access or use it to deliver the Services, each of whom will be bound by these restrictions and conditions; and (iii) it will take reasonable measures to prevent unauthorized access to the PHI by establishing and enforcing administrative, physical and technical safeguards. 9. Limitation of Liability. EXCEPT FOR VIOLATIONS RELATING TO BREACH OF CONFIDENTIALITY AND AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY, NOR ANY SUBSIDIARY, AFFILIATE, AGENT OR EMPLOYEE OF EITHER PARTY, SHALL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT. EXCEPT FOR VIOLATIONS RELATING TO BREACH OF CONFIDENTIALITY, INDEMNITY OBLIGATIONS, AND AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY, NOR ANY SUBSIDIARY, AFFILIATE, AGENT OR EMPLOYEE OF EITHER PARTY, SHALL BE LIABLE TO THE OTHER PARTY FOR AMOUNTS IN EXCESS OF THE TOTAL AMOUNTS PAID HEREUNDER AS OF THE DATE NOTICE IS GIVEN OF A CLAIM. 10. Remedies. No right or remedy conferred on or reserved to Vendor or Customer by this Agreement is exclusive of any other right or remedy. Each Party acknowledges that the other Party may seek preliminary or permanent injunctive relief or declaratory relief if the other Party violates or threatens to violate any provision of this Agreement. The non-prevailing Party will pay all costs and expenses, including reasonable attorneys’ fees incurred by the prevailing Party in any action or proceeding brought to enforce any provision of this Agreement or to enjoin any violation of this Agreement. 11. Roles and Responsibilities.Vendor and Customer acknowledge and agree the roles and responsibilities of both Vendor and Customer are as described in Schedule A attached hereto. 12. Independent Contractors. The Parties shall perform activities under this Agreement only as independent contractors and nothing contained herein shall be construed to be inconsistent with this relationship or status. Under no circumstances shall any personnel of either Party be considered to be an employee or agent of the other Party. Nothing in this Agreement shall be interpreted as granting either Party the right or authority to make commitments of any kind for the other, implied or otherwise, without prior review and written agreement. This Agreement shall not constitute, create, or in any way be interpreted as a joint venture, partnership or formal business organization of any kind. Each Party agrees to indemnify and hold the other harmless from any liability arising out of the failure by the other Party to withhold or pay federal and state income taxes, unemployment and social security taxes as may be applicable. 13. No Waiver. Neither the course of conduct between the Parties nor trade practice shall act to modify any provisions of this Agreement. No failure or delay on the part of either Party in the exercise of any right or privilege hereunder, including the right to cancel, shall operate as a waiver thereof, nor shall any single or partial exercise of such right or privilege preclude other or further exercise thereof or of any other right or privilege. No waiver of any term of this Agreement will be valid unless in writing and acknowledged in writing by both Parties. 6 14. Notices. Any notice or request that is required or permitted under this Agreement shall be sufficient if given in writing or by confirmed e-mail address for the Parties listed below. Notices must be given either (a) in person; (b) by e-mail; (c) sent by courier or other messenger upon confirmation of delivery by such courier or messenger service; or (d) sent by a type of first-class mail, postage prepaid, requiring a signed receipt to confirm delivery. The notice or request shall be addressed to the addressees as follows: Vendor: ACAP Health Consulting, LLC 12712 Park Central Drive, Suite 100, Dallas, TX 75251 Attn: Brett Newman Email: bnewman@acaphealth.com Customer: City of Waukee 236 W Hickman Rd, Waukee, IA, 50263 Attn: Toni Coughlin E-mail: Tcoughlin@Waukee.org 15. Governing Law. The validity, performance, and all matters relating to the effect of this Agreement and any amendment hereto shall be governed by the laws of the State of Iowa and the federal laws of United States of America, without regard to any conflict of law rules, and both Parties shall submit to the jurisdiction of courts within the State of Iowa, with venue in Polk County (if State Court) or the U.S. District Court for the Southern District of Iowa (if Federal Court). 16. Assignment. Neither Party may assign, transfer or otherwise convey this Agreement or any rights granted under this Agreement except with the written consent of the other Party. Notwithstanding the foregoing, Vendor shall be permitted to assign this Agreement to any party that controls, is controlled by or is under common control with Vendor. Subject to such restrictions, this Agreement shall be binding upon, and inure to the benefit of, the successors in interest and permitted assignees of the Parties. 17. Severability. In the event any one or more of the provisions of this Agreement is held to be unenforceable or invalid under applicable law: (i) such unenforceability or invalidity shall not affect any other provision of this Agreement; (ii) this Agreement shall be construed as if said unenforceable or invalid provision had not been contained herein; and (iii) the Parties shall negotiate in good faith to replace the unenforceable or invalid provision by such as has the effect nearest to that of the provision being replaced. 18. Captions. The captions used in this Agreement are for convenience of reference only and are not to be used in interpreting the obligations of the Parties under this Agreement. 19. Entire Agreement. This Agreement and any Schedules attached hereto, including the Business Associate Addendum, constitute the entire understanding between the Parties concerning the subject matter hereof and supersede all prior discussions, agreements and representations, whether oral or written. This Agreement or any part or provision hereof shall not be deemed waived, amended, or modified by either Party unless such waiver, amendment or modification is in writing and executed by authorized representatives of both Parties. 20. Counterpart Execution. This Agreement may be executed in multiple counterparts, including emailed or telecopied facsimile, each of which when so executed shall be an original, and all of which shall constitute one and the same instrument. 21. Force Majeure. Each party will be excused from performance under the Agreement for any period to the extent that it is prevented from performing pursuant thereto, in whole or in part, as a 7 result of delays caused by acts of God, war, civil disturbance, court order, labor dispute, or other cause beyond its reasonable control, and such non-performance will not be a default under the Agreement or a ground for its termination. Delays or failures that are excused as provided in this Section will result in automatic extensions of dates for performance for a reasonable period of time, not to exceed thirty (30) days. Economic hardship of either Party will not constitute a force majeure under this Agreement. The party whose performance is prevented by force majeure must provide notice of such force majeure to the other party as soon as is reasonably possible and must use diligent efforts to remove such causes of non-performance. In Witness Whereof, the Parties have caused their duly authorized representatives to execute this Agreement as of the day and year first above written. FOR AND ON BEHALF OF VENDOR: ACAP Health Consulting, LLC By: Name: Title: Date: FOR AND ON BEHALF OF CUSTOMER: City of Waukee By: Name: Title: Date: 8 Schedule A A.1 Vendor Responsibilities The following services are to be delivered by officers, agents or employees of Vendor to Customer under this Agreement: a. Vendor shall prepare, provide and distribute program materials for the Program consisting of student manuals, website content, automated emails and such other items as the Parties may by mutual agreement include within the scope of this provision for use by Participants. The program materials shall be considered part of the Curriculum and constitute Confidential Information of Vendor. b. Vendor shall provide customized content and resources for Customer to meet the needs of the First Responder employees. c. Vendor shall establish and maintain a website that permits Participants to register for the web- based services. The website services shall provide secure password access available only to Participants. The content of the website services shall be considered part of the Curriculum and constitute Confidential Information of Vendor. d. Vendor shall provide template employee communication materials prior to the Program commencement date according to the implementation timeline mutually agreed by the Parties. A.2 Customer Responsibilities The following services are to be performed by Customer under this Agreement: a. Communicate Vendor’s role in the participation of the Program to appropriate Customer personnel. b. Distribute communication materials regarding the Program, to include but not limited to, the announcement of the Program offering, and registration process. 9 SCHEDULE B Business Associate Agreement This Business Associate Agreement (“BAA”) is entered into by and between City of Waukee (“Covered Entity”) and ACAP Health Consulting, LLC (“Business Associate”) effective as of the Effective Date of the Agreement into which this BAA is incorporated. WHEREAS, Covered Entity is a group health plan as defined in the administrative simplification provisions within the Health Insurance Portability and Accountability Act of 1996 (HIPAA Privacy and Security Rules). WHEREAS, Business Associate is a wellness solution consultant that provides consulting services to plan sponsors and group health plans on matters related to employee benefits. WHEREAS, Business Associate has been retained by the Covered Entity and/or broker to perform a function or activity on behalf of the Covered Entity that requires that the Business Associate have access to Protected Health Information (PHI). WHEREAS, Covered Entity desires to receive satisfactory assurances from the Business Associate that it will comply with the obligations required of business associates by the HIPAA Privacy and Security Rules. WHEREAS, the parties wish to set forth their understandings with regard to the use and disclosure of PHI by the Business Associate in performance of its obligations. NOW, THEREFORE, in consideration of the mutual promises set forth below, the parties hereby agree as follows: A. DEFINITIONS Terms used, but not otherwise defined, in this BAA shall have the same meaning as those terms in the HIPAA Privacy, Security, Breach Notification and Enforcement Rules at 45 CFR Part 160 and 164. B. USE AND DISCLOSURE OF PHI Covered Entity hereby grants Business Associate permission to use, disclose, and request from third parties PHI on behalf of Covered Entity or an organized health care arrangement in which the Covered Entity is a member in order to: 1. Perform or assist in performing a function or activity that involves the creation, receipt, transmission or maintenance of PHI, including, but not limited to, claims processing or administration, data analysis, utilization review, quality assurance, billing, benefit management, practice management, repricing, renewal or replacement of a contract, conducting planning-related analysis related to managing the employee benefit plans, and customer service. 2. Assist the Covered Entity's other business associates retained to provide legal advice, accounting, actuarial, consulting, data aggregation, management, administration, accreditation, or financial services to the Covered Entity or to an organized health care arrangement in which the Covered Entity participates. 3. Allow Business Associate to properly manage and administer the Business Associate's organization or to carry out the legal responsibilities of the Business Associate. 4. Perform functions, activities, or services for, or on behalf of, Covered Entity as specified above, except as otherwise limited by this BAA or if such use or disclosure would violate the HIPAA Privacy or Security Rules if done by the Covered Entity. C. OBLIGATIONS AND ACTIVITIES OF BUSINESS ASSOCIATE 10 1. Use and Disclosure of PHI. Business Associate shall not use or further disclose PHI other than as permitted by this BAA or as required by law. To the extent practicable, Business Associate shall limit its use or disclosure of PHI or requests for PHI to a limited data set, or if necessary, to the minimum necessary to accomplish the intended purpose of such use, disclosure or request. 2. Safeguards. Business Associate shall use appropriate safeguards to prevent the use or disclosure of PHI other than pursuant to the terms and conditions of this BAA, including establishing procedures that limit access to PHI within its organization to those employees with a need to know the information. Business Associate agrees that it will implement appropriate administrative, physical and technical safeguards to protect the confidentiality, integrity and availability of electronic PHI that it creates, receives, maintains or transmits on behalf of the Covered Entity, as required by the HIPAA Security Rule. Business Associate acknowledges that the requirements of 45 C.F.R. Sections 164.308, 164.310 and 164.312 applicable to such administrative, physical and technical safeguards apply to Business Associate in the same manner that such sections apply to Covered Entity. Further, Business Associate shall implement, and maintain in written form, reasonable and appropriate policies and procedures to comply with the standards, implementation specifications or other requirements of the HIPAA Security Rule, in accordance with 45 C.F.R. Section 164.316, which applies to Business Associate in the same manner that such section applies to Covered Entity. 3. Unauthorized Disclosures of PHI. Business Associate shall, within fifteen (15) business days of becoming aware of a disclosure of PHI in violation of this BAA by Business Associate, its officers, directors, employees, contractors, or agents or by a third party to which Business Associate disclosed PHI (including a subcontractor), report to Covered Entity any such disclosure. Business Associate agrees to mitigate, to the extent practicable, any harmful effect of the unauthorized disclosure. This section shall also apply to any breach of unsecured PHI, as defined by the applicable regulations. Notice of any such breach shall include the identification of any individual whose unsecured PHI has been, or is reasonably believed by Business Associate, to have been accessed, acquired or disclosed during such breach and any other information required by the applicable regulations. 4. Security Incidents. Business Associate shall promptly report to Covered Entity any Security Incident of which it becomes aware, in accordance with the HIPAA Security Rule. 5. Agreements With Third Parties. Business Associate agrees to ensure that any agents and subcontractors that create, receive, maintain or transmit PHI on behalf of Business Associate with respect to Business Associate’s relationship with Covered Entity agree in writing to the same restrictions and conditions that apply to Business Associate with respect to such information. 6. Access to Information. Within fifteen (15) business days of a request by the Covered Entity for access to PHI about an individual contained in a Designated Record Set, Business Associate shall make available to the Covered Entity such PHI for so long as such information is maintained in a Designated Record Set and in accordance with the requirements of 45 C.F.R. Section 164.524. In the event any individual requests access to PHI directly from the Business Associate, Business Associate shall forward the request for PHI to Covered Entity within five (5) business days. 7. Availability of PHI for Amendment. Business Associate agrees to make any amendments to PHI in a Designated Record Set that the Covered Entity directs or agrees to pursuant to 45 CFR Section 164.526 at the request of the Covered Entity or an individual, and in the time and manner designated by Covered Entity. 8. Inspection of Books and Records. Business Associate agrees to make its internal practices, books, and records relating to the use and disclosure of PHI received from, or created or received by Business Associate on behalf of Covered Entity, available to the Covered Entity, or at the request of the Covered Entity, to the Secretary of the U.S. Department of Health and Human Services or its designee (the “Secretary”), in a time and manner designated by the Covered Entity or the Secretary, for purposes of the Secretary determining Covered Entity's compliance with HIPAA. 9. Accounting of Disclosures. Business Associate agrees to maintain and make available to the Covered Entity an accounting of disclosures of PHI as would be required for Covered Entity to respond to a request by an individual made in accordance with 45 CFR Section 164.528. Business 11 Associate shall provide an accounting of disclosures made during the six (6) years prior to the date on which the accounting is requested (or during the three (3) years prior to the date the accounting is requested for PHI maintained in an electronic health record, beginning on the applicable effective date pursuant to the American Recovery and Reinvestment Act of 2009). At a minimum, the accounting of disclosures shall include the following information: a. Date of disclosure, b. The name of the person or entity who received the PHI, and if known, the address of such entity or person, c. A brief description of the PHI disclosed, and d. A brief statement of the purpose of such disclosure which includes an explanation of the basis of such disclosure. In the event the request for an accounting is delivered directly to the Business Associate, the Business Associate shall forward the request to Covered Entity within five (5) business days. Business Associate agrees to implement an appropriate recordkeeping process to enable it to comply with the requirements of this section. 10. Remuneration in Exchange for PHI. Effective September 23, 2013, the effective date of the final HIPAA regulations pursuant to the American Recovery and Reinvestment Act of 2009, Business Associate shall not directly or indirectly receive remuneration in exchange for any PHI without a valid authorization permitting such remuneration, except as permitted by law. D. OBLIGATIONS OF COVERED ENTITY 1. Covered Entity shall comply with each applicable requirement of the HIPAA Privacy, Security, Breach Notification and Enforcement Rules. 2. Covered Entity shall provide Business Associate with the notice of privacy practices that Covered Entity produces in accordance with 45 CFR Section 164.520, and shall provide Business Associate a revised notice within fifteen (15) business days of any changes or revisions to such notice. 3. Covered Entity shall provide Business Associate with any changes in, or revocation of, permission by individual to use or disclose PHI, if such changes affect Business Associate's permitted or required uses and disclosures within fifteen (15) business days of notice from the individual of the same. 4. Covered Entity shall notify Business Associate of any restriction to the use or disclosure of PHI that Covered Entity has agreed to in accordance with 45 CFR Section 164.522 within fifteen (15) business days of agreeing to such restriction. E. PERMISSIBLE REQUESTS BY COVERED ENTITY Covered Entity shall not request Business Associate to use or disclose PHI in any manner that would not be permissible under HIPAA if done by the Covered Entity. F. TERMINATION 1. Term. The term of this BAA shall begin on the Effective Date and shall remain in effect until terminated under Section F(2) of this BAA. 2. Termination. This BAA shall be terminated only as follows: a. Termination for Cause by Covered Entity This BAA may be terminated by the Covered Entity upon fifteen (15) business days’ written notice to the Business Associate in the event that the Business Associate breaches any provision of this BAA and such breach is not cured within such fifteen (15) day period. b. Termination for Cause by Business Associate This BAA may be terminated by the Business Associate upon fifteen (15) business days’ written notice to the Covered Entity in the event that the Covered Entity breaches any provision of this BAA and such breach is not cured within such fifteen (15) day period. c. Termination Due To Change in Law 12 Either party may terminate this BAA effective upon thirty (30) days’ advance written notice to the other party in the event that the terminating party has sought amendment of this BAA pursuant to Paragraph G(1) and no amendment has been agreed upon. d. Termination Without Cause Either may terminate this BAA effective upon ninety (90) days’ advance written notice to the other party given with or without any reason. 3. Return or Destruction of PHI Upon termination of this BAA, Business Associate shall return or destroy all PHI received from Covered Entity, or created, maintained or received by Business Associate on behalf of Covered Entity that the Business Associate maintains in any form. Business Associate shall retain no copies of the PHI. Notwithstanding the above, to the extent that the Business Associate determines that it is not feasible to return or destroy such PHI, the terms and provisions of Paragraphs A, B, C and D shall survive termination of this BAA and such PHI shall be used or disclosed solely for such purpose or purposes which prevented the return or destruction of such PHI for as long as Business Associate maintains such PHI. G. GENERAL PROVISIONS 1. Amendment. This BAA may be amended only by the mutual written agreement of the parties. The parties agree to take such action to amend this BAA from time to time as is necessary for the Covered Entity or Business Associate to comply with the requirements of HIPAA. 2. Indemnification; Limitation of Liability. Business Associate shall release, indemnify and hold Covered Entity harmless from and against any claims, fees, and costs, including, without limitation, reasonable attorneys’ fees and costs, which are related to Business Associate's failure to perform its obligations under this BAA; provided, however, that Business Associate’s total liability to Covered Entity shall not exceed a sum that is equal to the last twelve (12) months’ of revenue received by Business Associate from Covered Entity. Covered Entity shall release, indemnify and hold Business Associate harmless from and against any claims, fees, and costs, including without limitation, reasonable attorneys' fees and costs, which are related to Covered Entity's alleged improper use or disclosure of PHI or other breach of this BAA. 3. Remedies. The parties acknowledge that breach of Paragraphs B, C, D or E of this BAA may cause irreparable harm for which there is no adequate remedy at law. In the event of a breach, or if either party has actual notice of an intended breach, such party shall be entitled to a remedy of specific performance and/or injunction enjoining the other party from violating or further violating this BAA. The parties agree the election of the party to seek injunctive relief and or specific performance of this BAA does not foreclose or have any effect on any right such party may have to recover damages. 4. Survival. The respective rights and obligations of Business Associate and Covered Entity shall survive termination of this BAA according to the terms hereof. 5. Governing Law. This BAA shall be construed and enforced in accordance with the laws of the State of Iowa. 6. Assigns. Neither this BAA nor any of the rights, benefits, duties, or obligations provided herein may be assigned by any party to this BAA without the prior written consent of the other party. 7. Third Party Beneficiaries. Nothing in this BAA shall be deemed to create any rights or remedies in any third party. 8. Interpretation. Any ambiguity in this BAA shall be resolved in favor of a meaning that permits the Covered Entity and/or Business Associate, as applicable, to comply with HIPAA. 9. Notices. Any notice given under this BAA must be in writing and delivered via first class mail, via reputable overnight courier service, or in person to the parties' respective addresses as first written above or to such other address as the parties may from time to time designate in writing. 13 IN WITNESS WHEREOF, the undersigned have executed this BAA. “COVERED ENTITY” “BUSINESS ASSOCIATE” CITY OF WAUKEE ACAP HEALTH CONSULTING, LLC By:___________________________________ By:_____________________________ (Authorized Signature) (Authorized Signature) ___________________________________ ______________________________ (Print Name) (Print Name) ____________________________________ ______________________________ (Title) (Title) Date:___________________________________ Date:_________________________