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R-09-01-08-8C2 - 1/8/2009RESOLUTION NO. R -09-01-08-8C2 WHEREAS, the City of Round Rock desires to retain professional services to provide Medicare supplemental health benefits coverage for eligible individuals, and WHEREAS, Extend Health Inc. has submitted a Retiree Program Agreement to provide eligible individuals access to the program's retiree benefit plans, and WHEREAS, the City Council desires to enter into said agreement with Extend Health Inc., Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City an Extend Retiree Program Agreement with Extend Health Inc., a copy of same being attached hereto as Exhibit "A" and incorporated herein for all purposes. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended RESOLVED this 8th day of January, 2009. ATTEST: SARA L. WHITE, City Secretary 0:\WDOX\RESOLUTI\R90108C2.DOC/rmC Prii/L-• ALAN MCGRAW, Mayor City of Round Rock, Texas Extend Health EXTEND RETIREE PROGRAM AGREEMENT THIS PROGRAM AGREEMENT (this "Agreement") is made and entered into as of this day of January, 2009 ("Agreement Date") by and between EXTEND HEALTH INC., a Delaware corporation with its principal place of business located at 330 Primrose Road, Suite 610, Burlingame, California, 94010 ("Extend") and the CITY OF ROUND ROCK, TEXAS, a home -rule municipality, with its principal office located at 221 East Main Street, Round Rock, Texas 78664 (the "Client"). WITNESSETH: WHEREAS, Extend, through its duly licensed insurance agency subsidiary, Extend Insurance Services, LLC, and its affiliates, is a health insurance management company licensed pursuant to all Applicable Laws; WHEREAS, Extend desires to provide access to the Program to the Client and Eligible Individuals; WHEREAS, the Client desires to permit Extend to provide the Eligible Individuals with access to the Program; and WHEREAS, the Client has agreed to allow Extend to market the Program to its current and future Eligible Individuals for the term of this Agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, and intending to be legally bound hereby, the Parties agree as follows: ARTICLE 1 DEFINITIONS AND INTERPRETATION Section 1.1 Definitions. All capitalized terms used, but not defined, herein shall have the respective meanings set forth in Schedule A attached hereto and incorporated by reference herein. Section 1.2 Interpretation. In this Agreement, unless the context otherwise requires, the singular shall include the plural and any pronoun shall include the corresponding masculine, feminine and neuter forms. The words "hereof," "herein," "hereto," and "hereunder," and words of similar import, when used in this Agreement shall, unless otherwise expressly specified, refer to this Agreement as a whole and not to any particular provision of this Agreement. Whenever the term "including" is used herein in connection with a listing of items included within a prior reference, such listing shall be interpreted to be illustrative only, and shall not be interpreted as a limitation on or exclusive listing of the items included in the prior reference. Any reference in this Agreement to "Section", "Article", "Exhibit" or "Schedule" shall be references to this Agreement unless otherwise stated, and all such Exhibits and Schedules shall be incorporated in this Agreement by reference. Unless otherwise stated, any reference in this Agreement to any 151907/jkg entity shall include its permitted successors and assigns, and, in the case of any Governmental Authority, any entity succeeding to its functions and capacities. Section 1.3 Construction. If there is any conflict between the text of this Agreement and any Schedule or Exhibit, the terms of this Agreement shall prevail. Both Parties acknowledge that each was actively involved in the negotiation and drafting of this Agreement and that no law or rule of construction shall be raised or used in which the provisions of this Agreement shall be construed in favor or against either Party because one is deemed to be the author thereof. ARTICLE 2 TERM AND TERMINATION Section 2.1 Term. The term of this Agreement shall commence on the Agreement Date and shall continue in effect for a period of three (3) years from the Effective Date (the "Initial Term") unless terminated pursuant to the provisions of this Agreement. Section 2.2 Termination. This Agreement may be terminated as follows: (a) immediately by the mutual written consent of Extend and the Client; (b) By either Party at the end of a term, if such Party notifies the other Party in writing within one hundred twenty (120) days prior to the end of a term; (c) by either Party hereto after thirty (30) days written notice of termination to the other Party of a material breach by such other Party of any provision of this Agreement, unless such other Party cures such material breach within the thirty (30) day period following such other Party's receipt of such notice; (d) by the Client upon its delivery of written notice of termination to Extend upon the voluntary or involuntary filing against Extend of any petition under any federal or state bankruptcy, receivership, liquidation, rehabilitation, administrative supervision or similar law, which is not dismissed with ninety (90) days after filing; or (e) by Extend upon its delivery of written notice of termination to the Client upon the voluntary or involuntary filing against the Client of any petition under any federal or state bankruptcy, receivership, liquidation, rehabilitation, administrative supervision or similar law, which is not dismissed with ninety (90) days after filing; Section 2.3 Effect of Termination. Upon termination of this Agreement, neither Party shall be liable for any other costs, expenses, damages or claims of any sort resulting from termination of this Agreement, including any damages for lost or prospective profits. Section 2.4 Transition of Services. Upon the termination of this Agreement, Extend shall cooperate fully with any successor of services to ensure the successful transfer of services and shall follow any other related transition provisions in the applicable Schedules. 2 ARTICLE 3 MARKETING OBLIGATIONS Section 3.1 Communication and Marketing of the Program. The Program will be communicated and marketed to Eligible Individuals as set forth in Schedule C. Extend shall administer and offer the Program to the Eligible Individuals via the Call Center, the Website and otherwise as mutually agreed. Section 3.2 Call Center. As part of the Program, Extend shall establish, maintain and operate a private labeled Call Center, with both English and Spanish speaking agents in accordance with this Agreement and shall incorporate systems, procedures and practices which distinctively identify a specific number as being dedicated to the Eligible Individuals ("Call Center"). Extend shall use commercially reasonable best efforts to make the Call Center accessible to the Eligible Individuals via the dedicated number during Business Hours; provided, however, that the Client agrees that from time to time the Call Center may be inaccessible or inoperable for various reasons, including without limitation, equipment malfunctions, periodic maintenance procedures or repairs, disruptions in communications, or causes beyond Extend's control or due to occurrences that Extend could not reasonably foresee. Extend shall maintain the Call Center in accordance with the performance standards set forth in Schedule D. If the Client is contacted regarding the Program, the Eligible Individual shall be referred to the Call Center via the dedicated number unless otherwise mutually agreed to by the Parties. Section 3.3 Customer Service. Extend will be responsible for pre -sale and post -sale customer service for all Products. Extend's employees and agents shall be skilled, knowledgeable, and professional in performance of services. Extend warrants the ability and knowledge of its employees and agents to perform all skills necessary to complete services and further warrants that Extend shall acquire any necessary training for its employees or agents in order to provide services; meet Client's expectations relative to the services; and/or remain current and knowledgeable on innovative ideas and techniques relative to the Products and services being provided. Section 3.4 Intellectual Property. Except as expressly provided herein, no right, property, license, permission or interest of any kind in or to the use of any copyright, trademark, service marks, trade name, patents, color combination, insignia, logo, device or other proprietary rights ("Intellectual Property") owned or used by a Party is or is intended to be given or transferred to or acquired by the other Party by the execution, performance or nonperformance of this Agreement or any part of it. Each Party shall obtain the written permission of the other Party before utilizing the other Party's Intellectual Property. Each Party agrees that it shall in no way contest or deny the validity of, or the right to title of the other Party in or to such Intellectual Property and shall not encourage or assist others directly or indirectly to do so. Section 3.5 Reports. Extend shall provide the Client with either web based access to or, electronic versions of, each of the reports listed on Schedule E. 3 ARTICLE 4 INSURANCE LICENSING Section 4.1 Extend Licensure. Extend represents and warrants to and for the benefit of, and agrees with, the Client, as to itself and as of the date hereof, that it has obtained any and all permits, licenses, approvals, orders and consents of, and made all necessary registrations with, each Governmental Authority and each other Person required in connection with or related to the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby (collectively, "Required Permits"), including without limitation, all necessary and appropriate licenses to market, sell and service the Products. Section 4.2 Notification of Licensing Requirements. If Extend becomes aware of any licensing requirement for the Client as a result of its performance of the terms and conditions of this Agreement, Extend shall notify the Client of any such licensing requirement; provided, however, that any failure by Extend to determine that the Client is subject to any licensing requirement shall not constitute a breach of this Agreement by Extend. Section 4.3 Delays and Suspensions. Extend represents and warrants that, as of the Effective Date, Extend has the Required Permits to offer the Products to Client's Eligible Individuals. Throughout the term of this Agreement, Extend shall offer the same or a substantially similar choice of products and services with the same or substantially similar geographic availability; provided, however, that the ability of Extend to offer any particular product or service in a particular state may be adversely affected by state or federal regulatory or legislative action outside of Extend's control. In the event of such adverse action, Extend shall make commercially reasonable efforts to replace any unavailable product or service with a substantially similar product or service in the same geographic region. The Parties shall cooperate in good faith in addressing all licensing and regulatory compliance requirements; provided, that Extend shall have primary responsibility for the identification and the resolution of all requirements. ARTICLE 5 REPRESENTATIONS, WARRANTIES AND COVENANTS Section 5.1 Representations and Warranties of the Parties. Each Party represents and warrants to the other Party that: (a) It is duly organized, validly existing and in good standing and reputation under the laws of the jurisdiction of its organization. (b) It is duly qualified to do business and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualification. (c) It has the power and authority to execute, deliver, and perform its obligations under this Agreement. The execution, delivery and performance by it of this Agreement have been duly authorized by all necessary action. 4 (d) This Agreement has been duly executed and delivered by it and constitutes a legal, valid and binding obligation of it enforceable against it in accordance with its terms. (e) The execution, delivery and performance by it of, and the consummation of the transactions contemplated by, this Agreement do not and will not contravene or result in a default under (i) its organizational documents, (ii) any indenture, loan or credit agreement, lease, mortgage, security agreement, bond, note or other agreement or instrument binding on or affecting such Party or any of its properties, or (iii) any Applicable Law. (f) There is no action, suit or proceeding in respect of which it has been served or, to the best of its knowledge, which is pending or threatened, in each case, before or by any Governmental Authority (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated hereby, or (iii) seeking any determination or ruling that could reasonably be expected to adversely affect (A) the performance by it of this Agreement or the consummation of the transactions contemplated hereby, or (B) the validity or enforceability of this Agreement. (g) It is, and at all times will be, in compliance with, all Applicable Laws, including without limitation state insurance laws regarding compensation arrangements, disclosure requirements and misleading or unfair trade practices, and the Gramm -Leach Bliley Act of 1999, as amended or otherwise modified from time to time. It shall advise the other Party in writing of any instance of non-compliance with any Applicable Law promptly upon becoming aware thereof. It shall comply with any reasonable request or directive by the other Party to ensure compliance with any Applicable Law. (h) It has the absolute and unrestricted right and authority to grant the rights and licenses provided for herein as well as the right and authority to use the Intellectual Property in the way it is used in the Marketing Materials. (i) All materials submitted to either Party by the other Party or distributed by either Party or its representatives under this Agreement shall be truthful and not misleading, and shall comply and conform in all respects with Applicable Law. The Parties shall notify the other Party immediately in the event it becomes aware of any facts or circumstances that might constitute a violation of this Section 5.1(i). (j) That it shall require its employees, agents and sub -contractors to comply with the terms of this Agreement. ARTICLE 6 CONFIDENTIALITY Extend expressly acknowledges its understanding that the City of Round Rock is a Texas home -rule municipality subject to the Texas Public Information Act ("TPIA"), and that its duty to comply runs in compliance therewith. This paragraph shall apply to the entirety of Article 6 and shall supersede anything in conflict therewith. In the event that the City of Round Rock 5 receives a request for Confidential Information under the TPIA, the City of Round Rock shall provide immediate written notice to Extend of such request. Section 6.1 Confidential Information. The Parties agree that all written documents and materials relating to the Parties or to this Agreement and which are given or disclosed to one Party by the other Party in connection with this Agreement shall be confidential ("Confidential Information"). Each Party's respective Confidential Information shall remain its sole and exclusive property. Section 6.2 Disclosure of Confidential Information. (a) Each Party agrees that throughout the Initial Term, and any extension or renewal hereof, and continuing for a period of three (3) years after termination or expiration of this Agreement, it will (i) maintain the confidentiality of the Confidential Information and not disclose it to any Person, except as authorized by the original disclosing Party in writing; (ii) restrict disclosure of Confidential Information only to employees and agents who have a "need to know" in order for the Party to perform its obligations under this Agreement and who are bound to maintain the confidentiality of the Confidential Information by terms of nondisclosure obligations no less restrictive than those contained herein and (iii) properly informs its employees and agents of the confidential status of information provided to them; (vi) handle Confidential Information with not less than the same degree of care the receiving Party applies to its own confidential information, but in no event, less than reasonable care; (v) use Confidential Information only for the purpose of performing, and, to the extent necessary, to fulfill, its respective obligations under this Agreement; and (vi) promptly notify the other Party upon discovery of any unauthorized use or disclosure of the Confidential Information and take reasonable steps to regain possession of the Confidential Information and prevent further unauthorized actions or breaches of this Agreement. Confidential Information is and at all times will remain the property of the disclosing Party. No use of any Confidential Information is permitted except as expressly provided herein, and no grant under any proprietary rights is hereby given or intended, including any license implied or otherwise except as expressly provided in this Agreement. (b) Notwithstanding anything to the contrary herein, the receiving Party has no obligation to preserve the confidentiality of any information (and such information shall not be considered Confidential Information) that is (i) previously known, or received rightfully by the receiving Party without any obligation to keep it confidential, (ii) distributed to Persons by the disclosing Party without restriction, (iii) publicly available other than by unauthorized disclosure by the receiving Party, or (iv) independently developed by the receiving Party. In addition, the receiving Party may disclose Confidential Information to any person lawfully demanding Confidential Information pursuant to appropriate judicial or administrative process, provided that the receiving Party provides sufficient prior written notice of the demand to allow the disclosing Party a reasonable opportunity to object to the scope or terms of the demand or obtain a protective order, the receiving Party uses all reasonable efforts to resist disclosure before complying with the disclosure request, and if disclosure ultimately is required, the receiving Party discloses only the Confidential Information specifically required and only to the extent compelled to do so, and the receiving Party otherwise continues to maintain confidentiality after 6 the required disclosure (except to the extent such information ceases to be Confidential Information pursuant to the preceding sentence). Section 6.3 Return of Confidential Information. Upon receipt of the disclosing Party's written request, the receiving Party shall return or destroy all Confidential Information provided by the disclosing Party, along with all copies and portions thereof. Section 6.4 Remedies. The Parties shall be entitled to all remedies available at law or equity to enforce, or seek relief in connection with, this confidentiality obligation; provided, however, all monetary damages shall be limited to actual direct damages. Section 6.5 Privacy Policy. Each Party respects the privacy of employees' personal information and represents that any personal information collected or received in the course of performance of this Agreement will be handled in compliance with all applicable data privacy laws and regulations. In all data handling, Extend will use the highest standard of care and prudence practiced by similar companies in the field, and in full compliance with all Applicable Law. Extend further agrees to require its suppliers or subcontractors to adopt the same requirements that apply to Extend in this section. In the event of a disclosure of Client's Confidential Information either through the acts or omissions of Extend or its subcontractors, Extend agrees to indemnify Client, its agents, subsidiaries, employees and related companies from any loss, cost, damage, adjustment, or other liability or damages whatsoever, where such loss, cost, damage, adjustment or other liability was caused in whole or in part by the acts or omissions of Extend or its subcontractor. Section 6.6 Survival. This Article shall survive the termination of this Agreement for as long as Extend maintains possession of Client's Confidential Information or other data. ARTICLE 7 INDEMNIFICATION AND LIABILITY Section 7.1 Indemnification by Extend. Extend shall indemnify, defend, and hold harmless the Client, its Affiliates and their respective directors, officers, employees and agents (each, a "Client Indemnified Person") against, and hold each Client Indemnified Person harmless from, any loss, liability, damage, cost or expense (including reasonable fees and expenses of counsel) (collectively, "Damages") resulting from or arising out of any and all claims, demands, losses, actions, suits, proceedings, judgments, damages, fines, penalties, assessments, interest, costs, expenses, or liabilities (collectively, "Claims") which may be brought or made against any Client Indemnified Person in connection with or related to Extend's performance of this Agreement or the transactions contemplated hereby. Section 7.2 Indemnification by the Client. The Client shall indemnify, defend, and hold harmless Extend, its Affiliates and their respective directors, officers, employees and agents (each, an `Extend Indemnified Person") from and against any and all Damages resulting from or arising out of any Claims which may be brought or made against any Extend Indemnified Person 7 in connection with or related to Client's or any of Client's employees (a) willful misconduct, (b) breach of this Agreement, (c) negligence, or (d) violation of any Applicable Law. Section 7.3 Notice of Claims. The Party seeking indemnification under Section 7.1 or 7.2 (the "Indemnified Party") agrees to give prompt written notice to the Party from whom indemnity is sought (the "Indemnifying Party") of any Claims or Damages in respect of which indemnity may be sought (each, an "Indemnification Notice"). Such notice referred to in the preceding sentence shall state the relevant facts and include therewith relevant documents and a statement in reasonable detail as to the basis for the indemnification being sought. The failure by an Indemnified Party so to notify the Indemnifying Party shall not relieve an Indemnifying Party from any liability which it may have to such Indemnified Party with respect to any Claim made or Damages sought pursuant to Section 7.1 or 7.2, except to the extent that such failure actually materially prejudices an Indemnifying Party. In the event of the assertion of any Claims or Damages in respect of which indemnity would be sought by the Indemnified Party but for the fact that the notice of such Claims or Damages was sent to the Indemnifying Party, the Indemnifying Party shall give prompt notice to the Indemnified Party of such Claim or Damages. Section 7.4 Defense of Claims. Upon receipt or delivery of an Indemnification Notice pursuant to Section 7.3, the Indemnifying Party, in its sole discretion, may elect to assume the defense and control of such Claims or Damages. In the event that (a) the Indemnifying Party elects to assume the defense of any Claims or Damages and (b) the Client or Extend is an Indemnified Party, the Client or Extend, as the case may be, shall have the right but not the obligation to participate in the defense of such Claims or Damages with its own counsel and at its own expense and the Indemnifying Party shall reasonably cooperate with the Client or Extend. In the event that the Indemnifying Party elects to assume the defense of any Claims or Damages, the Indemnifying Party shall (i) take all steps necessary in the defense or settlement of such Claims and Damages, and (ii) at all times diligently and promptly pursue the resolution of such Claims or Damages. The Indemnified Party shall, and shall cause its representatives to, provide reasonable cooperation to the Indemnifying Party in the defense of any Claim or Damages defended by the Indemnifying Party. Section 7.5 No Consequential Damages. In no event shall the Parties liability under this Agreement, if any, include special, consequential or exemplary damages, including lost revenues, profits and business opportunities. Section 7.6 Survival. This Article shall survive the termination of this Agreement. ARTICLE 8 MISCELLANEOUS Section 8.1 Assignment. Parties may not assign this Agreement without the prior written consent of the other Party, which shall not be unreasonably withheld, except either Party may assign to a purchaser of all, or substantially all, of its assets or to any parent, subsidiary or affiliate of such Party. Consent to any assignment shall not be deemed to be consent to any subsequent assignment and each assignment must be with the prior written consent of the other Party. 8 Section 8.2 Relationship of the Parties. (a) Extend is and shall be acting under this Agreement as an independent contractor. Nothing in this Agreement or otherwise shall be deemed to create a relationship of master and servant, employer and employee, principal and agent, joint venture, partnership, association taxable as a corporation, or other entity for the conduct of business for profit between the Parties. Nothing in this Agreement shall be construed as authorizing a Party to act on behalf of the other Party, and undertake by this Agreement or otherwise to perform or discharge any liability or obligation of the other Party, whether financial, regulatory, or contractual or to assume any responsibility whatsoever for the conduct of the business or operations of the other Party. (b) To the extent that the employees or agents of the respective Parties perform work related to this Agreement it is understood that no employees or agents of one Party shall be deemed to be employees or agents of the other. It is acknowledged that the respective Parties' employees or agents shall at all times remain that Party's employees or agents. Each Party shall have the sole and exclusive control over its agents and employees. (c) If Extend receives a complaint from a Participant regarding a Client product or service, Extend shall refer such Participant to the Client for the complaint to be further addressed. If the Client receives any complaints from a Participant regarding Extend's products, the Client shall refer such Participant to Extend for a response. The Parties shall be responsible for responding to all Participants' complaints regarding their respective products or services. Section 8.3 Public Announcements. Neither Party shall issue any public announcement or release any statement regarding this Agreement or the subject matter hereof without the prior written consent of the other Party thereto; provided, however, that no Party shall be restricted from complying with Applicable Law or any Governmental Authority. Section 8.4 Amendments. This Agreement cannot be amended except by a written instrument executed by each of the Parties. Section 8.5 Severability. If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of this Agreement shall remain enforceable. Section 8.6 Entire Agreement. This Agreement, together with the exhibits and schedules, which are incorporated herein, contain the entire agreement between the Parties with respect to the subject matter hereof. Section 8.7 No Third Party Beneficiaries. This Agreement is made solely for the benefit of the Parties and their respective permitted successors and assigns, and no other Person, including without limitation, any Eligible Individual. Section 8.8 Waiver. Any waiver by a Party of a breach by the other Party of any term or provision of this Agreement shall not operate or be construed as a continuing waiver or a waiver of any subsequent breach by such Party. No waiver shall be valid unless in writing and signed by the Party exercising such waiver. 9 Section 8.9 Sub -Contractors. If Extend subcontracts with a Person for the purpose of providing any of the services under this Agreement, Extend agrees that it shall still remain responsible for performance of such services by such subcontractor under this Agreement. In no event shall the Client be liable to any Person for any breach of the subcontracting agreement between Extend and such Person. Section 8.10 Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Texas, and jurisdiction and venue shall lie in Williamson County, Texas. Section 8.11 Notices. Any notice or other communication required or permitted by this Agreement to be delivered to the Parties shall be in writing, by delivery in person, by facsimile, electronic transmission, or registered or certified mail (postage prepaid, return receipt requested), addressed as following: If to Extend: Extend Health, Inc. 330 Primrose Rd., Suite 610 Burlingame, CA 94010 Telephone: (650) 292-7704 Facsimile: (650) 292-8744 Electronic Mail: joe.murad@extendhealth.com Attn: Joe Murad, SVP, Corporate Development With a copy to: Song Pak, General Counsel Extend Health, Inc. 1717 Rhode Island Ave., NW Suite 900 Washington DC 20036 Telephone: (202) 776-1427 Electronic Mail: song.pak@extendhealth.com If to the Client: City of Round Rock City Manager's Office 221 East Main Street Round Rock, TX 78664 With a copy to: Stephan L. Sheets City Attorney 309 East Main Street Round Rock, TX 78664 10 Or to other such addresses as the Parties may designate by notice sent in accordance herewith. Any such notices shall be effective upon mailing. Section 8.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, including by facsimile, each of which shall be deemed an original and all of which taken together shall constitute one and the same Agreement. Section 8.13 Time is of the Essence. Time is of the essence in the performance of this Agreement. Section 8.14 Audit. Extend shall (i) retain all records, correspondence, vouchers, books of accounts, time sheets, data security procedures and practices, and other supporting documentation insofar as services rendered or monies expended under this Agreement for seven years following the end of the year to which the information applies, and (ii) make available and open to Client and its agents and representatives during normal business hours for inspection and copying upon notice from Client. Such records shall be maintained in accordance with generally accepted accounting principles and practices; all IRS requirements; and all requirements sufficient to meet the obligations under this Agreement. Audits shall be conducted at Client's expense and with a frequency of no more than once annually, unless warranted by a significant decline in the quality of Extend's services. Client shall provide Extend at least two weeks' notice of its intent to audit. Section 8.15 Insurance. Extend acknowledges and agrees that it is responsible for providing its own health, life, workers' compensation, unemployment compensation, and liability insurance coverage, as Client's coverage does not extend to Extend or its employees or agents. Extend further understands that any personal liabilities incurred by it as an independent contractor while performing services for Client are solely Extend's responsibility. Section 8.16 Good Faith. Client and Extend recognize it is impractical to enumerate every situation that may arise in the course of the services covered by this Agreement. When such situations arise, both Client and Extend will attempt to resolve such matters in a friendly and equitable manner within the context of this Agreement. IN WITNESS WHEREOF, the Parties hereto have signed this Agreement as of the date set forth above. EXTEND HEALTH CLIENT By: By: Name: Joseph J. Murad Name: Title: SVP, Corporate Development Title: Date: Date: 11 SCHEDULE A DEFINITIONS "Affiliate" means, with respect to any Person, any other Person that, directly or indirectly, controls, or is controlled by or is under control with such first Person. "Applicable Law" means any applicable federal, state, local and foreign order, law, statute, regulation, rule, ordinance, writ, injunction, directive, judgment, decree, principle of common law, constitution or treaty enacted, promulgated, issued, enforced or entered by any Governmental Authority applicable to the Parties. "Business Days" means any day except a Saturday, Sunday or other day on which commercial banks in the State of Utah are required or authorized by Applicable Law to close. "Business Hours" means 7:00 am to 7:00 pm, Mountain Time, Monday through Friday. "Call Center" has the meaning set forth in Section 3.2. "Claims" has the meaning set forth in Section 7.1. "Client" means the City of Round Rock, Texas, a home -rule municipality. "Client Indemnified Party" has the meaning set forth in Section 7.1. "Confidential Information" has the meaning set forth in Section 6.1. "Damages" has the meaning set forth in Section 7.1. "Effective Date" means , 200 . "Eligible Individual" means a retiree of Client that is Medicare eligible and any other class of persons mutually agreed upon by Extend and Client. "Extend" means Extend Health, Inc., a Delaware corporation. "Extend Indemnified Person" has the meaning set forth in Section 7.2. "Governmental Authority" means any federal, regional, state, local executive, legislative, judicial, regulatory, legal or administrative agency, court, commission, department, taxing authority, or other authority thereof having jurisdiction over the Parties or this Agreement. "Indemnification Notice" has the meaning set forth in Section 7.3. "Indemnified Party" has the meaning set forth in Section 7.3. "Indemnifying Party" has the meaning set forth in Section 7.3. Schedule A - Page 1 "Intellectual Property" has the meaning set forth in Section 3.4. "Participant" means an Eligible Individual who is eligible for the Program. "Party" means Extend or the Client, as applicable. "Person" means an individual or a corporation, partnership, limited liability company, association, trust, or any other entity or organization, including a Governmental Authority. "Products" has the meaning set forth in Schedule B. "Program" means ExtendRetiree health benefit program offered by Extend which provides access to the Products as set forth in Schedule B, as amended from time to time. "Required Permits" has the meaning set forth in Section 4.1. "Website" means the website www.extendretiree.com/client. Schedule A - Page 2 SCHEDULE B EXTEND RETIREE BENEFIT PLANS The ExtendRetiree Benefit Plans ("Products") available to Eligible Individuals under the Program are: (a) Individual Medigap plans; (b) Individual Medicare Advantage Plans; (c) Individual Medicare Part D Plans; (d) Individual dental discount and insured plans; (e) Individual vision discount and insured plans; and (f) Any other plans agreed to by the Parties. Schedule B - Page 1 SCHEDULE C COMMUNICATION PLAN Communication & Change Management Extend suggests that Client provide education materials in January. Client's formal announcement could come at this time. Extend has standard announcement collateral that Client is welcome to utilize. The Extend Health Enrollment/Welcome Kit will be sent in Janaury, following the Client's announcement. A high level communications schedule is below: Contact Verification Communication (from Employer, no Extend info) Initial Client Communication se�- Extend Heal Participant Enrollment Star Coni Reminder Notices (email/mail) Confirmation of Election: .al/mail) December 2008 January 2009 January 2009 January 2009 February 2009 February2009; Late February 2009 Final Note s to Those Not Enrolled Schedule C - Page 1 SCHEDULE D PERFORMANCE STANDARDS We are committed to delivering service in accordance with industry -acceptable and commercially reasonable standards. The service levels offered by Extend Health are described below. Metric Standard Measurement Licensed Benefit Advisor availability Benefit Advisors will be available on business days (Monday — Friday) from 9 a.m. to 9 p.m. Eastern Time. Benefit Advisor availability can be determined based on login and logoff times from our telephone switch. IVR Eligible Individuals who call the designated number shall be greeted by an automated IVR scripted message. The IVR shall be operational at least ninety-nine percent (99%) of each month excluding downtime for regularly scheduled maintenance which shall be performed during off-peak hours. Scheduled maintenance occurs every other Friday at 7 pm Mountain time and lasts no more than two (2) hours. Call Abandonment Rate The call abandonment rate will be less than 10 percent. The call abandonment rate is the percentage of calls that are queued for Benefit Advisors where the caller hangs up before reaching a Benefit Advisor. It does not include calls where the caller elects to leave a voice mail. Return of Emails and/or Voice Messages 95 percent of emails and/or voice messages left by callers will be returned within one business day A call record is established each time a caller leaves a message for a Benefit Advisor. The call record is updated with the time of the call back once it has been made. Email contacts are also tracked based on receipt date and response date. Call recording 100 percent of all calls between Benefit Advisors and Participants are recorded. Schedule D - Page 1 Metric Standard Measurement Message recording 100 percent of messages left by Participants will be recorded and available for Benefit Advisors listening and follow-up Issue resolution Respond to all issues from individual retirees within 24 hours of receipt of issue. Ninety percent (90%) of all issues regarding coverage and enrollment shall be resolved by Extend within five (5) Business Days of initial complaint. Ninety-eight percent (98%) of all issues regarding coverage and enrollment shall be resolved by Extend within twenty (20) Business Days of Extend's receipt of the initial complaint. Case management will be reviewed to ensure timely response on all issues sent to the Customer Service Center. Website availability The performance standard is 99 percent availability, 24 hours a day, 7 days a week, excluding pre - scheduled maintenance releases by the Vendor Web system availability is calculated as the total number of hours in the calendar quarter minus the number of prescheduled maintenance hours, divided by the total number of hours it is actually up and running (i.e., `available'). Schedule D - Page 2 SCHEDULE E REPORTS Administrative Reports Timeliness Reports will be produced on time according to the ongoing Processing Calendar. Reports are recorded and measured against the Processing Calendar. Updates that are processed late for reasons outside of our control are excluded from any calculations (e.g., unavailability of third party system, delay in receiving valid data from client, etc.) Responsiveness to ad hoc report requests Respond with timing and fees (if any) related to report request within 5 business days of scope definition. This is measured from the time the request is logged to the response time outlining any estimated costs and proposed delivery date. Delivery Extent to which requested report is delivered on the agreed upon date. We will define the time to deliver reports based on the report requirements; we will make every effort to respond to requests within the timeframe requested by client STANDARD MONTHLY REPORTING • SERVICE CENTER METRICS o CALL VOLUME O CALL HOLD TIME O ABANDONMENT RATE • ISSUED POLICIES BY CARRIER AND TYPE • WEB ACTIVITY Schedule E - Page 1 DATE: December 31, 2008 SUBJECT: City Council Meeting —January 8, 2009 ITEM: 8C2. Consider a resolution authorizing the Mayor to execute the Extend Retiree Program Agreement with Extend Health, Inc. Department: Staff Person: Justification: Human Resources Teresa Bledsoe, Director of Human Resources Extend Health offers a wide range of plan choices from leading national and regional insurance companies. Extend Health will provide retirees with advice and enrollment assistance for choosing Medicare supplemental health care plans, prescription drug, dental and vision coverage. Funding: Cost: The cost of this insurance is a one-time implementation fee of $8 per insured. Source of funds: General Fund, Water/Wastewater Utility fund City contribution and employee paid premiums for dependent health care. Outside Resources: N/A Background Information: Currently the city offers eligible retirees an opportunity to continue their health benefits utilizing our current benefit plan. However, because Medicare is the primary insurer, the retiree does not always get the best value. Additionally, as the retiree population increases so does our exposure and liability associated with health care in general. This would give our Medicare eligible employees an opportunity to supplement their Medicare benefit with a plan that not only meets their needs but also addresses the affordability issue. This change is part of the broader effort to reduce the exposure of the City's self-funded plan to catastrophic illness and financial losses. Public Comment: N/A EXECUTED DOCUMENT FOLLOWS Extend Health EXTEND RETIREE PROGRAM AGREEMENT THIS PROGRAM AGREEMENT (this "Agreement") is made and entered into as of this b day of January, 2009 ("Agreement Date") by and between EXTEND HEALTH INC., a Delaware corporation with its principal place of business located at 330 Primrose Road, Suite 610, Burlingame, California, 94010 ("Extend") and the CITY OF ROUND ROCK, TEXAS, a home -rule municipality, with its principal office located at 221 East Main Street, Round Rock, Texas 78664 (the "Client"). WITNESSETH: WHEREAS, Extend, through its duly licensed insurance agency subsidiary, Extend Insurance Services, LLC, and its affiliates, is a health insurance management company licensed pursuant to all Applicable Laws; WHEREAS, Extend desires to provide access to the Program to the Client and Eligible Individuals; WHEREAS, the Client desires to permit Extend to provide the Eligible Individuals with access to the Program; and WHEREAS, the Client has agreed to allow Extend to market the Program to its current and future Eligible Individuals for the term of this Agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, and intending to be legally bound hereby, the Parties agree as follows: ARTICLE 1 DEFINITIONS AND INTERPRETATION Section 1.1 Definitions. All capitalized terms used, but not defined, herein shall have the respective meanings set forth in Schedule A attached hereto and incorporated by reference herein. Section 1.2 Interpretation. In this Agreement, unless the context otherwise requires, the singular shall include the plural and any pronoun shall include the corresponding masculine, feminine and neuter forms. The words "hereof," "herein," "hereto," and "hereunder," and words of similar import, when used in this Agreement shall, unless otherwise expressly specified, refer to this Agreement as a whole and not to any particular provision of this Agreement. Whenever the term "including" is used herein in connection with a listing of items included within a prior reference, such listing shall be interpreted to be illustrative only, and shall not be interpreted as a limitation on or exclusive listing of the items included in the prior reference. Any reference in this Agreement to "Section", "Article", "Exhibit" or "Schedule" shall be references to this Agreement unless otherwise stated, and all such Exhibits and Schedules shall be incorporated in this Agreement by reference. Unless otherwise stated, any reference in this Agreement to any 151907/jkg V U9�o(-vf grt? entity shall include its permitted successors and assigns, and, in the case of any Governmental Authority, any entity succeeding to its functions and capacities. Section 1.3 Construction. If there is any conflict between the text of this Agreement and any Schedule or Exhibit, the terms of this Agreement shall prevail. Both Parties acknowledge that each was actively involved in the negotiation and drafting of this Agreement and that no law or rule of construction shall be raised or used in which the provisions of this Agreement shall be construed in favor or against either Party because one is deemed to be the author thereof. ARTICLE 2 TERM AND TERMINATION Section 2.1 Term. The term of this Agreement shall commence on the Agreement Date and shall continue in effect for a period of three (3) years from the Effective Date (the "Initial Term") unless terminated pursuant to the provisions of this Agreement. Section 2.2 Termination. This Agreement may be terminated as follows: (a) immediately by the mutual written consent of Extend and the Client; (b) By either Party at the end of a term, if such Party notifies the other Party in writing within one hundred twenty (120) days prior to the end of a term; (c) by either Party hereto after thirty (30) days written notice of termination to the other Party of a material breach by such other Party of any provision of this Agreement, unless such other Party cures such material breach within the thirty (30) day period following such other Party's receipt of such notice; (d) by the Client upon its delivery of written notice of termination to Extend upon the voluntary or involuntary filing against Extend of any petition under any federal or state bankruptcy, receivership, liquidation, rehabilitation, administrative supervision or similar law, which is not dismissed with ninety (90) days after filing; or (e) by Extend upon its delivery of written notice of termination to the Client upon the voluntary or involuntary filing against the Client of any petition under any federal or state bankruptcy, receivership, liquidation, rehabilitation, administrative supervision or similar law, which is not dismissed with ninety (90) days after filing; Section 2.3 Effect of Termination. Upon termination of this Agreement, neither Party shall be liable for any other costs, expenses, damages or claims of any sort resulting from termination of this Agreement, including any damages for lost or prospective profits. Section 2.4 Transition of Services. Upon the termination of this Agreement, Extend shall cooperate fully with any successor of services to ensure the successful transfer of services and shall follow any other related transition provisions in the applicable Schedules. 2 ARTICLE 3 MARKETING OBLIGATIONS Section 3.1 Communication and Marketing of the Program. The Program will be communicated and marketed to Eligible Individuals as set forth in Schedule C. Extend shall administer and offer the Program to the Eligible Individuals via the Call Center, the Website and otherwise as mutually agreed. Section 3.2 Call Center. As part of the Program, Extend shall establish, maintain and operate a private labeled Call Center, with both English and Spanish speaking agents in accordance with this Agreement and shall incorporate systems, procedures and practices which distinctively identify a specific number as being dedicated to the Eligible Individuals ("Call Center"). Extend shall use commercially reasonable best efforts to make the Call Center accessible to the Eligible Individuals via the dedicated number during Business Hours; provided, however, that the Client agrees that from time to time the Call Center may be inaccessible or inoperable for various reasons, including without limitation, equipment malfunctions, periodic maintenance procedures or repairs, disruptions in communications, or causes beyond Extend's control or due to occurrences that Extend could not reasonably foresee. Extend shall maintain the Call Center in accordance with the performance standards set forth in Schedule D. If the Client is contacted regarding the Program, the Eligible Individual shall be referred to the Call Center via the dedicated number unless otherwise mutually agreed to by the Parties. Section 3.3 Customer Service. Extend will be responsible for pre -sale and post -sale customer service for all Products. Extend's employees and agents shall be skilled, knowledgeable, and professional in performance of services. Extend warrants the ability and knowledge of its employees and agents to perform all skills necessary to complete services and further warrants that Extend shall acquire any necessary training for its employees or agents in order to provide services; meet Client's expectations relative to the services; and/or remain current and knowledgeable on innovative ideas and techniques relative to the Products and services being provided. Section 3.4 Intellectual Property. Except as expressly provided herein, no right, property, license, permission or interest of any kind in or to the use of any copyright, trademark, service marks, trade name, patents, color combination, insignia, logo, device or other proprietary rights ("Intellectual Property") owned or used by a Party is or is intended to be given or transferred to or acquired by the other Party by the execution, performance or nonperformance of this Agreement or any part of it. Each Party shall obtain the written permission of the other Party before utilizing the other Party's Intellectual Property. Each Party agrees that it shall in no way contest or deny the validity of, or the right to title of the other Party in or to such Intellectual Property and shall not encourage or assist others directly or indirectly to do so. Section 3.5 Reports. Extend shall provide the Client with either web based access to or, electronic versions of, each of the reports listed on Schedule E. 3 ARTICLE 4 INSURANCE LICENSING Section 4.1 Extend Licensure. Extend represents and warrants to and for the benefit of, and agrees with, the Client, as to itself and as of the date hereof, that it has obtained any and all permits, licenses, approvals, orders and consents of, and made all necessary registrations with, each Governmental Authority and each other Person required in connection with or related to the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby (collectively, "Required Permits"), including without limitation, all necessary and appropriate licenses to market, sell and service the Products. Section 4.2 Notification of Licensing Requirements. If Extend becomes aware of any licensing requirement for the Client as a result of its performance of the terms and conditions of this Agreement, Extend shall notify the Client of any such licensing requirement; provided, however, that any failure by Extend to determine that the Client is subject to any licensing requirement shall not constitute a breach of this Agreement by Extend. Section 4.3 Delays and Suspensions. Extend represents and warrants that, as of the Effective Date, Extend has the Required Permits to offer the Products to Client's Eligible Individuals. Throughout the term of this Agreement, Extend shall offer the same or a substantially similar choice of products and services with the same or substantially similar geographic availability; provided, however, that the ability of Extend to offer any particular product or service in a particular state may be adversely affected by state or federal regulatory or legislative action outside of Extend's control. In the event of such adverse action, Extend shall make commercially reasonable efforts to replace any unavailable product or service with a substantially similar product or service in the same geographic region. The Parties shall cooperate in good faith in addressing all licensing and regulatory compliance requirements; provided, that Extend shall have primary responsibility for the identification and the resolution of all requirements. ARTICLE 5 REPRESENTATIONS, WARRANTIES AND COVENANTS Section 5.1 Representations and Warranties of the Parties. Each Party represents and warrants to the other Party that: (a) It is duly organized, validly existing and in good standing and reputation under the laws of the jurisdiction of its organization. (b) It is duly qualified to do business and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business requires such qualification. (c) It has the power and authority to execute, deliver, and perform its obligations under this Agreement. The execution, delivery and performance by it of this Agreement have been duly authorized by all necessary action. 4 (d) This Agreement has been duly executed and delivered by it and constitutes a legal, valid and binding obligation of it enforceable against it in accordance with its terms. (e) The execution, delivery and performance by it of, and the consummation of the transactions contemplated by, this Agreement do not and will not contravene or result in a default under (i) its organizational documents, (ii) any indenture, loan or credit agreement, lease, mortgage, security agreement, bond, note or other agreement or instrument binding on or affecting such Party or any of its properties, or (iii) any Applicable Law. (f) There is no action, suit or proceeding in respect of which it has been served or, to the best of its knowledge, which is pending or threatened, in each case, before or by any Governmental Authority (i) asserting the invalidity of this Agreement, (ii) seeking to prevent the consummation of any of the transactions contemplated hereby, or (iii) seeking any determination or ruling that could reasonably be expected to adversely affect (A) the performance by it of this Agreement or the consummation of the transactions contemplated hereby, or (B) the validity or enforceability of this Agreement. (g) It is, and at all times will be, in compliance with, all Applicable Laws, including without limitation state insurance laws regarding compensation arrangements, disclosure requirements and misleading or unfair trade practices, and the Gramm -Leach Bliley Act of 1999, as amended or otherwise modified from time to time. It shall advise the other Party in writing of any instance of non-compliance with any Applicable Law promptly upon becoming aware thereof. It shall comply with any reasonable request or directive by the other Party to ensure compliance with any Applicable Law. (h) It has the absolute and unrestricted right and authority to grant the rights and licenses provided for herein as well as the right and authority to use the Intellectual Property in the way it is used in the Marketing Materials. (i) All materials submitted to either Party by the other Party or distributed by either Party or its representatives under this Agreement shall be truthful and not misleading, and shall comply and conform in all respects with Applicable Law. The Parties shall notify the other Party immediately in the event it becomes aware of any facts or circumstances that might constitute a violation of this Section 5.1(i). (j) That it shall require its employees, agents and sub -contractors to comply with the terms of this Agreement. ARTICLE 6 CONFIDENTIALITY Extend expressly acknowledges its understanding that the City of Round Rock is a Texas home -rule municipality subject to the Texas Public Information Act ("TPIA"), and that its duty to comply runs in compliance therewith. This paragraph shall apply to the entirety of Article 6 and shall supersede anything in conflict therewith. In the event that the City of Round Rock 5 receives a request for Confidential Information under the TPIA, the City of Round Rock shall provide immediate written notice to Extend of such request. Section 6.1 Confidential Information. The Parties agree that all written documents and materials relating to the Parties or to this Agreement and which are given or disclosed to one Party by the other Party in connection with this Agreement shall be confidential ("Confidential Information"). Each Party's respective Confidential Information shall remain its sole and exclusive property. Section 6.2 Disclosure of Confidential Information. (a) Each Party agrees that throughout the Initial Term, and any extension or renewal hereof, and continuing for a period of three (3) years after termination or expiration of this Agreement, it will (i) maintain the confidentiality of the Confidential Information and not disclose it to any Person, except as authorized by the original disclosing Party in writing; (ii) restrict disclosure of Confidential Information only to employees and agents who have a "need to know" in order for the Party to perform its obligations under this Agreement and who are bound to maintain the confidentiality of the Confidential Information by terms of nondisclosure obligations no less restrictive than those contained herein and (iii) properly informs its employees and agents of the confidential status of information provided to them; (vi) handle Confidential Information with not less than the same degree of care the receiving Party applies to its own confidential information, but in no event, less than reasonable care; (v) use Confidential Information only for the purpose of performing, and, to the extent necessary, to fulfill, its respective obligations under this Agreement; and (vi) promptly notify the other Party upon discovery of any unauthorized use or disclosure of the Confidential Information and take reasonable steps to regain possession of the Confidential Information and prevent further unauthorized actions or breaches of this Agreement. Confidential Information is and at all times will remain the property of the disclosing Party. No use of any Confidential Information is permitted except as expressly provided herein, and no grant under any proprietary rights is hereby given or intended, including any license implied or otherwise except as expressly provided in this Agreement. (b) Notwithstanding anything to the contrary herein, the receiving Party has no obligation to preserve the confidentiality of any information (and such information shall not be considered Confidential Information) that is (i) previously known, or received rightfully by the receiving Party without any obligation to keep it confidential, (ii) distributed to Persons by the disclosing Party without restriction, (iii) publicly available other than by unauthorized disclosure by the receiving Party, or (iv) independently developed by the receiving Party. In addition, the receiving Party may disclose Confidential Information to any person lawfully demanding Confidential Information pursuant to appropriate judicial or administrative process, provided that the receiving Party provides sufficient prior written notice of the demand to allow the disclosing Party a reasonable opportunity to object to the scope or terms of the demand or obtain a protective order, the receiving Party uses all reasonable efforts to resist disclosure before complying with the disclosure request, and if disclosure ultimately is required, the receiving Party discloses only the Confidential Information specifically required and only to the extent compelled to do so, and the receiving Party otherwise continues to maintain confidentiality after 6 the required disclosure (except to the extent such information ceases to be Confidential Information pursuant to the preceding sentence). Section 6.3 Return of Confidential Information. Upon receipt of the disclosing Party's written request, the receiving Party shall return or destroy all Confidential Information provided by the disclosing Party, along with all copies and portions thereof. Section 6.4 Remedies. The Parties shall be entitled to all remedies available at law or equity to enforce, or seek relief in connection with, this confidentiality obligation; provided, however, all monetary damages shall be limited to actual direct damages. Section 6.5 Privacy Policy. Each Party respects the privacy of employees' personal information and represents that any personal information collected or received in the course of performance of this Agreement will be handled in compliance with all applicable data privacy laws and regulations. In all data handling, Extend will use the highest standard of care and prudence practiced by similar companies in the field, and in full compliance with all Applicable Law. Extend further agrees to require its suppliers or subcontractors to adopt the same requirements that apply to Extend in this section. In the event of a disclosure of Client's Confidential Information either through the acts or omissions of Extend or its subcontractors, Extend agrees to indemnify Client, its agents, subsidiaries, employees and related companies from any loss, cost, damage, adjustment, or other liability or damages whatsoever, where such loss, cost, damage, adjustment or other liability was caused in whole or in part by the acts or omissions of Extend or its subcontractor. Section 6.6 Survival. This Article shall survive the termination of this Agreement for as long as Extend maintains possession of Client's Confidential Information or other data. ARTICLE 7 INDEMNIFICATION AND LIABILITY Section 7.1 Indemnification by Extend. Extend shall indemnify, defend, and hold harmless the Client, its Affiliates and their respective directors, officers, employees and agents (each, a "Client Indemnified Person") against, and hold each Client Indemnified Person harmless from, any loss, liability, damage, cost or expense (including reasonable fees and expenses of counsel) (collectively, "Damages") resulting from or arising out of any and all claims, demands, losses, actions, suits, proceedings, judgments, damages, fines, penalties, assessments, interest, costs, expenses, or liabilities (collectively, "Claims") which may be brought or made against any Client Indemnified Person in connection with or related to Extend's performance of this Agreement or the transactions contemplated hereby. Section 7.2 Indemnification by the Client. The Client shall indemnify, defend, and hold harmless Extend, its Affiliates and their respective directors, officers, employees and agents (each, an "Extend Indemnified Person") from and against any and all Damages resulting from or arising out of any Claims which may be brought or made against any Extend Indemnified Person 7 in connection with or related to Client's or any of Client's employees (a) willful misconduct, (b) breach of this Agreement, (c) negligence, or (d) violation of any Applicable Law. Section 7.3 Notice of Claims. The Party seeking indemnification under Section 7.1 or 7.2 (the "Indemnified Party") agrees to give prompt written notice to the Party from whom indemnity is sought (the "Indemnifying Party") of any Claims or Damages in respect of which indemnity may be sought (each, an "Indemnification Notice"). Such notice referred to in the preceding sentence shall state the relevant facts and include therewith relevant documents and a statement in reasonable detail as to the basis for the indemnification being sought. The failure by an Indemnified Party so to notify the Indemnifying Party shall not relieve an Indemnifying Party from any liability which it may have to such Indemnified Party with respect to any Claim made or Damages sought pursuant to Section 7.1 or 7.2, except to the extent that such failure actually materially prejudices an Indemnifying Party. In the event of the assertion of any Claims or Damages in respect of which indemnity would be sought by the Indemnified Party but for the fact that the notice of such Claims or Damages was sent to the Indemnifying Party, the Indemnifying Party shall give prompt notice to the Indemnified Party of such Claim or Damages. Section 7.4 Defense of Claims. Upon receipt or delivery of an Indemnification Notice pursuant to Section 7.3, the Indemnifying Party, in its sole discretion, may elect to assume the defense and control of such Claims or Damages. In the event that (a) the Indemnifying Party elects to assume the defense of any Claims or Damages and (b) the Client or Extend is an Indemnified Party, the Client or Extend, as the case may be, shall have the right but not the obligation to participate in the defense of such Claims or Damages with its own counsel and at its own expense and the Indemnifying Party shall reasonably cooperate with the Client or Extend. In the event that the Indemnifying Party elects to assume the defense of any Claims or Damages, the Indemnifying Party shall (i) take all steps necessary in the defense or settlement of such Claims and Damages, and (ii) at all times diligently and promptly pursue the resolution of such Claims or Damages. The Indemnified Party shall, and shall cause its representatives to, provide reasonable cooperation to the Indemnifying Party in the defense of any Claim or Damages defended by the Indemnifying Party. Section 7.5 No Consequential Damages. In no event shall the Parties liability under this Agreement, if any, include special, consequential or exemplary damages, including lost revenues, profits and business opportunities. Section 7.6 Survival. This Article shall survive the termination of this Agreement. ARTICLE 8 MISCELLANEOUS Section 8.1 Assignment. Parties may not assign this Agreement without the prior written consent of the other Party, which shall not be unreasonably withheld, except either Party may assign to a purchaser of all, or substantially all, of its assets or to any parent, subsidiary or affiliate of such Party. Consent to any assignment shall not be deemed to be consent to any subsequent assignment and each assignment must be with the prior written consent of the other Party. 8 Section 8.2 Relationship of the Parties. (a) Extend is and shall be acting under this Agreement as an independent contractor. Nothing in this Agreement or otherwise shall be deemed to create a relationship of master and servant, employer and empioyee, principal and agent, joint venture, partnership, association taxable as a corporation, or other entity for the conduct of business for profit between the Parties. Nothing in this Agreement shall be construed as authorizing a Party to act on behalf of the other Party, and undertake by this Agreement or otherwise to perform or discharge any liability or obligation of the other Party, whether financial, regulatory, or contractual or to assume any responsibility whatsoever for the conduct of the business or operations of the other Party. (b) To the extent that the employees or agents of the respective Parties perform work related to this Agreement it is understood that no employees or agents of one Party shall be deemed to be employees or agents of the other. It is acknowledged that the respective Parties' employees or agents shall at all times remain that Party's employees or agents. Each Party shall have the sole and exclusive control over its agents and employees. (c) If Extend receives a complaint from a Participant regarding a Client product or service, Extend shall refer such Participant to the Client for the complaint to be further addressed. If the Client receives any complaints from a Participant regarding Extend's products, the Client shall refer such Participant to Extend for a response. The Parties shall be responsible for responding to all Participants' complaints regarding their respective products or services. Section 8.3 Public Announcements. Neither Party shall issue any public announcement or release any statement regarding this Agreement or the subject matter hereof without the prior written consent of the other Party thereto; provided, however, that no Party shall be restricted from complying with Applicable Law or any Governmental Authority. Section 8.4 Amendments. This Agreement cannot be amended except by a written instrument executed by each of the Parties. Section 8.5 Severability. If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of this Agreement shall remain enforceable. Section 8.6 Entire Agreement. This Agreement, together with the exhibits and schedules, which are incorporated herein, contain the entire agreement between the Parties with respect to the subject matter hereof. Section 8.7 No Third Party Beneficiaries. This Agreement is made solely for the benefit of the Parties and their respective permitted successors and assigns, and no other Person, including without limitation, any Eligible Individual. Section 8.8 Waiver. Any waiver by a Party of a breach by the other Party of any term or provision of this Agreement shall not operate or be construed as a continuing waiver or a waiver of any subsequent breach by such Party. No waiver shall be valid unless in writing and signed by the Party exercising such waiver. 9 Section 8.9 Sub -Contractors. If Extend subcontracts with a Person for the purpose of providing any of the services under this Agreement, Extend agrees that it shall still remain responsible for performance of such services by such subcontractor under this Agreement. In no event shall the Client be liable to any Person for any breach of the subcontracting agreement between Extend and such Person. Section 8.10 Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Texas, and jurisdiction and venue shall lie in Williamson County, Texas. Section 8.11 Notices. Any notice or other communication required or permitted by this Agreement to be delivered to the Parties shall be in writing, by delivery in person, by facsimile, electronic transmission, or registered or certified mail (postage prepaid, return receipt requested), addressed as following: If to Extend: Extend Health, Inc. 330 Primrose Rd., Suite 610 Burlingame, CA 94010 Telephone: (650) 292-7704 Facsimile: (650) 292-8744 Electronic Mail: joe.murad@extendhealth.com Attn: Joe Murad, SVP, Corporate Development With a copy to: Song Pak, General Counsel Extend Health, Inc. 1717 Rhode Island Ave., NW Suite 900 Washington DC 20036 Telephone: (202) 776-1427 Electronic Mail: song.pak@extendhealth.com If to the Client: City of Round Rock City Manager's Office 221 East Main Street Round Rock, TX 78664 With a copy to: Stephan L. Sheets City Attorney 309 East Main Street Round Rock, TX 78664 10 Or to other such addresses as the Parties may designate by notice sent in accordance herewith. Any such notices shall be effective upon mailing. Section 8.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, including by facsimile, each of which shall be deemed an original and all of which taken together shall constitute one and the same Agreement. Section 8.13 Time is of the Essence. Time is of the essence in the performance of this Agreement. Section 8.14 Audit. Extend shall (i) retain all records, correspondence, vouchers, books of accounts, time sheets, data security procedures and practices, and other supporting documentation insofar as services rendered or monies expended under this Agreement for seven years following the end of the year to which the information applies, and (ii) make available and open to Client and its agents and representatives during normal business hours for inspection and copying upon notice from Client. Such records shall be maintained in accordance with generally accepted accounting principles and practices; all IRS requirements; and all requirements sufficient to meet the obligations under this Agreement. Audits shall be conducted at Client's expense and with a frequency of no more than once annually, unless warranted by a significant decline in the quality of Extend's services. Client shall provide Extend at least two weeks' notice of its intent to audit. Section 8.15 Insurance. Extend acknowledges and agrees that it is responsible for providing its own health, life, workers' compensation, unemployment compensation, and liability insurance coverage, as Client's coverage does not extend to Extend or its employees or agents. Extend further understands that any personal liabilities incurred by it as an independent contractor while performing services for Client are solely Extend's responsibility. Section 8.16 Good Faith. Client and Extend recognize it is impractical to enumerate every situation that may arise in the course of the services covered by this Agreement. When such situations arise, both Client and Extend will attempt to resolve such matters in a friendly and equitable manner within the context of this Agreement. IN WITNESS WHEREOF, the Parties hereto have signed this Agreement as of the date set forth above. EXTEND HEALTH By: Name: Title: Date: _14 Joseph J. Murad SVP, Corporate Development 11 CLIENT By: Name: Title: Date: Vaeiretlw (.eb.O9 SCHEDULE A DEFINITIONS "Affiliate" means, with respect to any Person, any other Person that, directly or indirectly, controls, or is controlled by or is under control with such first Person. "Applicable Law" means any applicable federal, state, local and foreign order, law, statute, regulation, rule, ordinance, writ, injunction, directive, judgment, decree, principle of common law, constitution or treaty enacted, promulgated, issued, enforced or entered by any Governmental Authority applicable to the Parties. "Business Days" means any day except a Saturday, Sunday or other day on which commercial banks in the State of Utah are required or authorized by Applicable Law to close. "Business Hours" means 7:00 am to 7:00 pm, Mountain Time, Monday through Friday. "Call Center" has the meaning set forth in Section 3.2. "Claims" has the meaning set forth in Section 7.1. "Client" means the City of Round Rock, Texas, a home -rule municipality. "Client Indemnified Party" has the meaning set forth in Section 7.1. "Confidential Information" has the meaning set forth in Section 6.1. "Damages" has the meaning set forth in Section 7.1. "Effective Date" means , 200 . "Eligible Individual" means a retiree of Client that is Medicare eligible and any other class of persons mutually agreed upon by Extend and Client. "Extend" means Extend Health, Inc., a Delaware corporation. "Extend Indemnified Person" has the meaning set forth in Section 7.2. "Governmental Authority" means any federal, regional, state, local executive, legislative, judicial, regulatory, legal or administrative agency, court, commission, department, taxing authority, or other authority thereof having jurisdiction over the Parties or this Agreement. "Indemnification Notice" has the meaning set forth in Section 7.3. "Indemnified Party" has the meaning set forth in Section 7.3. "Indemnifying Party" has the meaning set forth in Section 7.3. Schedule A - Page 1 "Intellectual Property" has the meaning set forth in Section 3.4. "Participant" means an Eligible Individual who is eligible for the Program. "Party" means Extend or the Client, as applicable. "Person" means an individual or a corporation, partnership, limited liability company, association, trust, or any other entity or organization, including a Governmental Authority. "Products" has the meaning set forth in Schedule B. "Program" means ExtendRetiree health benefit program offered by Extend which provides access to the Products as set forth in Schedule B, as amended from time to time. "Required Permits" has the meaning set forth in Section 4.1. "Website" means the website www.extendretiree.com/client. Schedule A - Page 2 SCHEDULE B EXTEND RETIREE BENEFIT PLANS The ExtendRetiree Benefit Plans ("Products") available to Eligible Individuals under the Program are: (a) Individual Medigap plans; (b) Individual Medicare Advantage Plans; (c) Individual Medicare Part D Plans; (d) Individual dental discount and insured plans; (e) Individual vision discount and insured plans; and (f) Any other plans agreed to by the Parties. Schedule B - Page 1 SCHEDULE C COMMUNICATION PLAN Communication & Change Management Extend suggests that Client provide education materials in January. Client's formal announcement could come at this time. Extend has standard announcement collateral that Client is welcome to utilize. The Extend Health Enrollment/Welcome Kit will be sent in Janaury, following the Client's announcement. A high level communications schedule is below: Contact Verification Communication December 2008 (from Employer, no Extend info) Initial Client Communication Sent January 2009 Extend Health Welcome Kit Sent January 2009 Participant Enrollment Starts January 2009 Confirmation of Elections February 2009 Reminder Notices / Outbound for Non -Enrolled February 2009 (email/mail) Confirmation of Elections — (Email/mail) Late February 2009 Final Notices to Those Not Enrolled March / April 2009 Schedule C - Page 1 SCHEDULE D PERFORMANCE STANDARDS We are committed to delivering service in accordance with industry -acceptable and commercially reasonable standards. The service levels offered by Extend Health are described below. Metric Standard Measurement Customer Service Center Licensed Benefit Advisor availability Benefit Advisors will be available on business days (Monday — Friday) from 9 a.m. to 9 p.m. Eastern Time. Benefit Advisor availability can be determined based on login and logoff times from our telephone switch. IVR Eligible Individuals who call the designated number shall be greeted by an automated IVR scripted message. The IVR shall be operational at least ninety-nine percent (99%) of each month excluding downtime for regularly scheduled maintenance which shall be performed during off-peak hours. Scheduled maintenance occurs every other Friday at 7 pm Mountain time and lasts no more than two (2) hours. Call Abandonment Rate The call abandonment rate will be less than 10 percent. The call abandonment rate is the percentage of calls that are queued for Benefit Advisors where the caller hangs up before reaching a Benefit Advisor. It does not include calls where the caller elects to leave a voice mail. Return of Emails and/or Voice Messages 95 percent of emails and/or voice messages left by callers will be returned within one business day A call record is established each time a caller leaves a message for a Benefit Advisor. The call record is updated with the time of the call back once it has been made. Email contacts are also tracked based on receipt date and response date. Call recording 100 percent of all calls between Benefit Advisors and Participants are recorded. Schedule D - Page 1 Metric Message recording Standard 100 percent of messages left by Participants will be recorded and available for Benefit Advisors listening and follow-up Measurement Issue resolution Respond to all issues from individual retirees within 24 hours of receipt of issue. Ninety percent (90%) of all issues regarding coverage and enrollment shall be resolved by Extend within five (5) Business Days of initial complaint. Ninety-eight percent (98%) of all issues regarding coverage and enrollment shall be resolved by Extend within twenty (20) Business Days of Extend's receipt of the initial complaint. Case management will be reviewed to ensure timely response on all issues sent to the Customer Service Center. Website and System Hosting Website availability The performance standard is 99 percent availability, 24 hours a day, 7 days a week, excluding pre- scheduled maintenance releases by the Vendor Web system availability is calculated as the total number of hours in the calendar quarter minus the number of prescheduled maintenance hours, divided by the total number of hours it is actually up and running (i.e., 'available). Schedule D - Page 2 SCHEDULE E REPORTS Reporting Administrative Reports Timeliness Reports will be produced on time according to the ongoing Processing Calendar. Reports are recorded and measured against the Processing Calendar. Updates that are processed late for reasons outside of our control are excluded from any calculations (e.g., unavailability of third party system, delay in receiving valid data from client, etc.) Responsiveness to ad hoc report requests Respond with timing and fees (if any) related to report request within 5 business days of scope definition. This is measured from the time the request is logged to the response time outlining any estimated costs and proposed delivery date. Delivery Extent to which requested report is delivered on the agreed upon date. We will define the time to deliver reports based on the report requirements; we will make every effort to respond to requests within the timeframe requested by client STANDARD MONTHLY REPORTING • SERVICE CENTER METRICS O CALL VOLUME O CALL HOLD TIME O ABANDONMENT RATE • ISSUED POLICIES BY CARRIER AND TYPE • WEB ACTIVITY Schedule E - Page 1