SR 06-14-2022 3G
City Council
Report
City Council Meeting: June 14, 2022
Agenda Item: 3.G
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To: Mayor and City Council
From: Lori Gentles, Chief People Officer, Human Resources Department
Subject: Approval of Third Modification to Agreement with BetterUp, Inc. for Care
Program Support Services
Recommended Action
Staff recommends that the City Council authorize the City Manager to negotiate and
execute a third modification to agreement #11048 in the amount of $154,000 with
BetterUp, Inc., to provide employee support services for one year, through June 30,
2023. This will result in a three-year amended agreement with a new total amount not
to exceed $446,500. This recommended award is made as an exception to
the competitive bidding process pursuant to Section 2.24.250 (a) with future year
funding contingent on Council budget approval.
Summary
Like so many families across this country, City of Santa Monica staff and their families
faced increased stresses while working during a pandemic and face mental, emotional,
financial, and family pressures unlike any time in recent history. Employee wellness
directly impacts employee performance and retention and is tied to the delivery of
customer service and the successful completion of important projects and initiatives. To
support our employees, the Human Resources Department piloted a four-month
employee support program and seeks to continue this program for one year. The results
of the pilot program were positive with over 300 coaching sessions completed, 70% of
participants reported progress towards their goals, 98% reported that the program is a
valuable use of their time, and 90% reported that they are more effective at work as a
result of coaching. The categories most highly discussed include career development,
influence, leading others, communication, well-being, time management and
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productivity, and strategic management. Staff now seeks to extend the program for
another year to continue to support City employees.
Discussion
Because of the strong correlation between employee wellness and employee
satisfaction, it has become a Human Resources best practice to provide services that
support employees, nurture their wellbeing, and provide the tools to navigate the
demands of life and work. The City has provided an Employee Assistance Program and
more recently started a partnership with BetterUp to provide a one-year 1:1 leadership
and development coaching program and subsequent one-year small group topic-based
coaching, and resiliency coaching program. 150 City employees benefited from the
original programs and reported gaining valuable insights and being more effective at
work. HR was able to extend this positive impact with a four-month BetterUp pilot
program to reach all City employees called BetterUp Care. BetterUp Care is available
24/7 to all employees and provides customized care for each individual and equips
them with coaching, informational resources, and the expert support they need in the
moments they need them most.
Human Resources will use existing budgeted funds for this one-year program. Future
year extensions will be considered based on the effectiveness of the program, available
funding, and organizational priorities.
The City of Santa Monica is a pioneer in municipal government when it comes to
providing these types of personalized development opportunities to meet each
employee’s unique needs. Coaching historically has been reserved for management
and executives to correct behavior. The partnership with BetterUp reinforces HR staff’s
development aim to support the whole person, help employees find healthy work-life
balance, and build mental and emotional fitness so they feel and perform at their best.
Vendor/Consultant Selection
Exception to the Competitive Bidding Process
Staff recommends BetterUp Inc. to provide their BetterUp Care program to all City
employees for a one-year program as an exception to competitive bidding per Muni
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Code 2.24.250(a). This purchase meets the City’s exception to competitive bidding
criteria a.
Competition does not reasonably exist because only one vendor possesses the
unique ability or capability to meet the particular requirements of offering unlimited
24/7 employee support for all City employees. The City is leveraging the unique
experience of BetterUp gained through the 1:1 coaching of 50 City leaders, 100 city
employees in the Coaching Circle program, and all city employees in the recent pilot
program. This proprietary experience will be used to continue to support all city
employees with BetterUp Care, a curated and customized support program that
amplifies the significant benefits the City has already seen as a result of this
relationship.
Past Council Action
Meeting Date Description
5/26/2020
(Attachment A)
Authorization to Enter Into Agreement with BetterUp
1/11/2022
(Attachment B)
Authorization of Amendment to Agreement with BetterUp
Attachment C OAKS
Financial Impacts & Budget Actions
Staff seeks authority to approve funding from the General Fund to increase the amount
of the agreement with BetterUp, Inc. for subscription services. Future year funding is
contingent on Council budget approval.
Agreement Modification Request
Agreement #
Current
Authorized
Amount
FY 2021-22 Budget
Modified Request Amount Dept Account # Total Revised
Contract Amount
11048 $292,500 $154,000 01130004-552010 $446,500
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Prepared By: Mark Brower, Deputy Director
Approved
Forwarded to Council
Attachments:
A. Original Agreement - Attachment A
B. Second Modification of Agreement with BetterUp - Attachment B
C. OAKS - Attachment C
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BetterUp Enterprise Agreement Apr 2020 1
BETTERUP ENTERPRISE AGREEMENT
This BetterUp Enterprise Agreement (“Agreement”) is made and entered into as of^^_________, (the
“Effective Date”) by and between the City of Santa Monica, a California municipal corporation (“City”), and
BetterUp, Inc. (“BetterUp”) (each a “Party” and collectively “Parties”). In consideration of the mutual
covenants contained in this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. The services provided to the City by BetterUp under this Agreement shall be referred to hereinafter as
the “BetterUp Services”. BetterUp shall provide City personnel—each of them a “User” and collectively
“Users”—with the right to access the BetterUp Platform and BetterUp Services for a specific period of
time, each period referred to as a “Subscription Term”. BetterUp will provide the BetterUp Services
pursuant to mutually agreed upon orders (each, an “Order”). Each Order will include a description of the
BetterUp Services to be provided to the City during the applicable Subscription Term and the associated
fees and payment terms for said services. The initial Order to be used by the Parties under this Agreement
is attached hereto and is incorporated by reference as Exhibit A (Order One). To the extent that a conflict
arises between the terms and conditions of an Order and the terms and conditions of this Agreement, the
terms of this Agreement will govern.
2. Subscriptions. Unless otherwise provided in the applicable Order, BetterUp Services purchased by
the City and the corresponding access to the BetterUp Platform, are considered to be subscriptions for
the Subscription Term stated in said Order. The City agrees that its purchases of BetterUp Services under
this Agreement are not contingent on the delivery of any future functionality, feature or products, or
dependent on any oral or written public comments made by BetterUp regarding future functionality, feature
or products.
3. User Limits. BetterUp Services and BetterUp Platform are subject to User limits specified in the
Order, and the City is not allowed to exceed the User limits. In the event that the City exceeds the User
limits specified in the Order, City will notify BetterUp by email or in writing within a reasonable period of
time and will execute a new Order for the additional Users and the applicable BetterUp Services and use
of the BetterUp Platform. The City shall promptly pay the invoice associated with the new Order following
its receipt of a request from BetterUp and shall do so in accordance with Section 8.2.
4. Support. BetterUp shall provide the City with reasonable technical support regarding Users’ access
and use of the BetterUp Services. In addition, BetterUp may provide implementation and/or other
professional services at City’s request and on mutually agreed upon terms. BetterUp is not responsible
for issues resulting from misuse by City Users, connectivity issues unrelated to the BetterUp Platform, or
force majeure events. The Parties agree that a force majeure event shall be defined as a circumstance
beyond each Party’s reasonable control, including without limitation, acts of God, fires, floods,
earthquakes, wars, civil disturbances, terrorism, pandemics, or sabotage. Each Party will have no liability
for any such failure or delay caused by a force majeure event to the extent that it promptly uses
commercially reasonable efforts to minimize any resulting delay in or interference with the performance of
its obligations hereunder.
5. License and Restrictions. Subject to the terms of this Agreement, BetterUp grants to the City a
limited, non-exclusive, non-transferable license to access the BetterUp Platform solely for the City’s
internal business purposes and not for resale or further distribution. The City’s right to use the BetterUp
Platform is limited by all terms and conditions herein. Except for this license granted to City, BetterUp and
its licensors retain all right, title and interest in and to the BetterUp Platform and BetterUp Services,
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6/30/2020
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including all related intellectual property rights. The BetterUp Platform is protected by applicable
intellectual property laws, including U.S. copyright law and international treaties. The City is responsible
for establishing its own policy as to what information is appropriate for Users to share as part of the
BetterUp Services. The City and its Users shall not (a) rent, lease, copy, disclose, provide access to or
sublicense the BetterUp Platform, (b) use the BetterUp Platform for the benefit of, or to provide any service
to, a third party, or (c) publicly disseminate information regarding the performance of the BetterUp Platform
without BetterUp’s prior written consent.
6. User Interactions. User interactions with BetterUp in connection with the BetterUp Services are
subject to the BetterUp Terms of Service (found at https://www.betterup.co/en-us/terms/) and Privacy
Policy (found at https://www.betterup.co/en-us/privacy-policy/) (collectively “BetterUp User Terms”). The
following sections of the BetterUp Terms of Service shall not apply to Users and the topics included therein
shall be governed by this Agreement: 5 (Fees and Payment Terms), 15 (Limitation of Liability), 16.1
(Governing Law and Venue), and 16.6 (Assignment). BetterUp may use any data, information or materials
collected or received from Users through these interactions, in accordance with the BetterUp User Terms
and for its internal business purposes. BetterUp shall allow the City’s personnel to access the BetterUp
Services pursuant to the terms of this Agreement and the applicable Order, however the City is responsible
for establishing, to the extent applicable, its own policy with Users as to what information is appropriate to
share as part of the BetterUp Services.
7. BetterUp Analytics. As part of the services provided on the BetterUp Platform, BetterUp will, during
the term of this Agreement, provide the City with access to reports outlining (a) which Users have activated
with BetterUp, (b) sessions completed, (c) coaching start and end dates, and (d) aggregated and
anonymous statistics regarding the BetterUp Services the Users received, such as i) metadata and data
related to usage (e.g., average session length, frequency of use), ii) composition of development plans
(e.g., top skills chosen by Users, popular learning activities), and iii) User-generated data from learning
activities (e.g., results from psychometric assessments) (collectively, “BetterUp Analytics”). The City may
only use the BetterUp Analytics for its internal business purposes, in compliance with all applicable laws.
Consistent with the BetterUp User Terms and its confidentiality policies, BetterUp will not disclose User-
specific coaching content or results to the City.
8. Fees and Payment Terms.
8.1 Fees. The fees and compensation to be paid by the City to BetterUp for providing the City with the
BetterUp Services under this Agreement is set forth in Exhibit A (Order One). The total amount of
compensation paid by the City to BetterUp under this Agreement shall not exceed $112,500, unless said
total amount is modified by the Parties in writing. Except as otherwise specified herein or in Exhibit A, (i)
fees are based on access rights acquired and not actual usage, (ii) payment obligations are non-
cancelable and non-refundable, and (iii) access rights purchased for the number of Users cannot be
decreased during the relevant Subscription Term.
8.2 Invoicing and Payment. Subscription fees and all other compensation due hereunder shall be
invoiced to the City in accordance with the amounts and payment schedule set forth in Exhibit A. All fees
due hereunder (except fees subject to good faith dispute) shall be due and payable as set forth in Exhibit
A. The City shall provide BetterUp with complete and accurate billing and contact information including
valid email and mailing addresses. Upon receipt of an invoice from BetterUp, the City shall make payment
on that invoice via electronic bank transfer.
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8.3 Taxes. BetterUp's fees do not include any taxes, levies, duties or similar governmental assessments
of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any
jurisdiction whatsoever (collectively, “Taxes”). The City is responsible for paying all applicable Taxes
associated with its purchases hereunder. If BetterUp has the legal obligation to pay or collect Taxes for
which the City is responsible under this Section, BetterUp will invoice the City and the City shall pay the
invoiced amount unless the City provides BetterUp with a valid tax exemption certificate authorized by the
appropriate taxing authority or applicable legal authority exempting the City from the invoiced tax liability.
9. Inspection of City Records. During the term of this Agreement and for one (1) year thereafter (but
not more than once per calendar year), BetterUp, at its expense, may request that an audit and/or
inspection be made of City records applicable to the use of, and performance of, services provided and
required under this Agreement. BetterUp’s request under this Section shall be treated by City as a request
for public records under the California Public Records Act (California Govt. Code § 6250 et seq.) If after
review of the records produced in response to BetterUp’s request it discovers a discrepancy with City’s
payment obligations under this Agreement, BetterUp shall summarize and present the discrepancy to the
City for its review. If it reasonably appears that the City has underpaid for the services provided to it under
this Agreement, the City shall pay BetterUp the full amount of the underpayment. Notwithstanding
the foregoing, the City agrees that it will make its reasonably best effort to informally provide information
related to this Agreement with BetterUp to the extent permitted by applicable law and to address
operational issues that may arise during the course of this Agreement.
10. Trademarks. BetterUp’s name, BetterUp’s trademarks, BetterUp’s logos, and any other BetterUp
product, service name, or slogan included in the Services are property of BetterUp and may not be copied,
imitated, or used (in whole or in part) without BetterUp’s prior written consent. The look and feel of the
Services, including all custom graphics, button icons, and scripts constitute service marks, trademarks, or
trade dress of BetterUp and may not be copied, imitated, or used (in whole or in part) without BetterUp’s
prior written consent. All other trademarks, registered trademarks, product names, and company names or
logos mentioned in BetterUp Services or on the BetterUp Platform (“Third Party Trademarks”) are the
property of their respective owners, and the use of such Third Party Trademarks inures to the benefit of
each owner. The use of such Third Party Trademarks is intended to denote interoperability and does not
constitute an affiliation by BetterUp and its licensors with such company or an endorsement or approval by
such company of BetterUp or its licensors or their respective products or services.
11. Confidentiality.
11.1 Definition of Confidential Information. As used herein, "Confidential Information" means
information disclosed by a party ("Disclosing Party") to the other Party ("Receiving Party"), whether orally
or in writing, that is designated as confidential or that reasonably should be understood to be confidential
given the nature of the information and the circumstances of disclosure. Notwithstanding the foregoing,
Confidential Information shall not include any information to the extent that it can be established by written
documentation by the Receiving Party that such information: (i) is or becomes generally known to the
public without breach of any obligation of confidentiality by the Receiving Party; (ii) was known to the
Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the
Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing
Party and who has a legal right to disclose such information; or (iv) was independently developed by the
Receiving Party without the use of the Disclosing Party's Confidential Information. The Parties agree that,
during the Term, including any extensions thereto, and for one (1) year thereafter, the Receiving Party
shall keep confidential and shall not publish or otherwise disclose or use for any purpose other than as
provided for in this Agreement the Confidential Information of the Disclosing Party without the Disclosing
Party’s prior written permission.
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11.2. Protection of Confidential Information. The Receiving Party shall use the same degree of care
that it uses to handle, treat, store, access (or limit access), and otherwise protect (including with
encryption, as applicable) the confidentiality of its own Confidential Information of like kind (but in no event
less than reasonable care). The Receiving Party: (i) will not use any Confidential Information of the
Disclosing Party for any purpose outside the scope of, or as permitted by, this Agreement, and (ii) except
as otherwise authorized by the Disclosing Party in writing, will limit access to Confidential Information of
the Disclosing Party to those of its employees, contractors and agents who need such access for purposes
consistent with this Agreement and who are bound by obligations to the Receiving Party consistent with
this Agreement.
11.3. Compelled Disclosure. If the Receiving Party is required by law to disclose any portion of the
Disclosing Party’s Confidential Information in response to a subpoena, court order, or other similar
document, including a request under the California Public Records Act, Receiving Party shall give prior
timely notice of such disclosure to Disclosing Party to permit Disclosing Party to seek a protective or similar
order, and, absent the entry of such an order, Receiving Party shall disclose only such Confidential
Information as is necessary to be disclosed in response to such subpoena, court order, or other similar
document, including a request under the California Public Records Act.
11.4 Return or Destruction of Confidential Information. Upon written request, the Receiving Party
shall return to the Disclosing Party, or shall destroy, all Confidential Information received by it from the
Disclosing Party during the term of this Agreement except for digital backup copies created through
automated system processes provided that such backup copies are protected as Confidential Information
by the Receiving Party for as long as the information is retained.
11.5 Ownership of Confidential Information. The Receiving Party acknowledges that, except as
otherwise provided herein, (a) the Disclosing Party is the exclusive owner of and has all rights to its
Confidential Information, including all intellectual property rights therein, such as patents, copyrights, trade
secrets, trademarks, moral rights and similar rights of any type under the laws of any governmental
authority (collectively, “Intellectual Property Rights”); and (b) no right, title, interest or license to the
Receiving Party is either granted or implied under any Intellectual Property Rights by the disclosure of
Confidential Information hereunder.
12. Term, Termination, and Effects of Termination. This Agreement commences upon the Effective
Date and shall continue for a term of one (1) year (“Term”) unless terminated earlier by either Party in
accordance with this Section. The pricing for each Subscription Term for the duration of the Term of this
Agreement is set forth in Exhibit A. Either Party may terminate this Agreement (including all Orders) at
any time, for cause, after providing the non-terminating Party with written notice of a material breach, and
the non-terminating Party fails to cure said material breach of this Agreement or Order within 30 days of
written notice. Upon the expiration or termination of this Agreement or of an Order, (a) BetterUp will cease
providing the BetterUp Services under that Order, (b) the City and its Users will cease any access to the
BetterUp Platform under such Order, except Users may contract individually with BetterUp for coaching
separately from BetterUp’s client relationship with the City, and (c) City may retain and continue use of all
BetterUp Analytics provided by BetterUp prior to the effective date of termination or expiration of this
Agreement, except if BetterUp terminates this Agreement for cause. If this Agreement is terminated or
has expired, and at least one Order remains in effect, then the terms of this Agreement shall continue to
apply to any such Orders. Notwithstanding any terms or conditions to the contrary in this Agreement, and
in addition to this sentence, Sections 5, 7, 8, 10, 11, 13, 14, and 15 survive any termination or expiration
of this Agreement and no refunds will be issued.
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13. Representations and Warranties. Each Party represents and warrants that (a) the person signing
this Agreement on its behalf has been duly authorized and empowered to enter into this Agreement,
(b) this Agreement is valid, binding and enforceable against it in accordance with its terms, and (c) it will
fulfil its obligations under this Agreement in accordance with all applicable laws.
14. Disclaimer. EXCEPT AS SET FORTH IN SECTION 13, BETTERUP MAKES NO WARRANTIES,
EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO,
WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR
NONINFRINGEMENT. COACHING DOES NOT CONSTITUTE MEDICAL ADVICE OR THERAPY.
BETTERUP WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER
PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR
OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF BETTERUP.
15. Limitation of Liability. EXCEPT FOR CITY’S BREACH OF THE RESTRICTIONS IN SECTION 5
OR OTHER MISAPPROPRIATION OF BETTERUP’S INTELLECTUAL PROPERTY, TO THE MAXIMUM
EXTENT PERMITTED BY LAW, IN NO EVENT WILL (A) EITHER PARTY BE LIABLE TO THE OTHER
PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT; AND
(B) EITHER PARTY’S ENTIRE LIABILITY TO THE OTHER PARTY EXCEED THE AMOUNT ACTUALLY
PAID BY THE CITY TO BETTERUP UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS
PRECEDING THE MONTH IN WHICH THE EVENT OCCURRED GIVING RISE TO THE CLAIM.
16. General Provisions.
16.1 Insurance. Prior to commencing any work or providing any services, BetterUp must procure,
maintain, and pay for insurance against claims for injuries to persons or damage to property that may
arise from or in connection with the performance of the BetterUp Services by BetterUp or its agents,
representatives, employees or subconsultants for the duration of this Agreement. BetterUp must obtain
insurance that, at a minimum, meets the requirements for insurance set forth in Exhibit D (Insurance
Requirements and Verifications).
16.2 Governing Law and Venue. This Agreement will be governed by and construed in accordance
with the laws of the State of California applicable to agreements made and to be entirely performed within
the State of California, without resort to its conflict of law provisions.
16.3 Ownership. As between the Parties and subject to the grants expressly set forth in this Agreement,
BetterUp owns all right, title and interest in and to the BetterUp Services and anonymous/aggregate data,
feedback and any and all patent rights, copyrights, trademark rights, trade secret rights and other
intellectual property rights embodied in or related to the foregoing.
16.4 Publicity. BetterUp may disclose the fact that the City has procured a license to use the BetterUp
Services and the BetterUp Platform. However, BetterUp shall not, without the City’s prior written approval,
use the City’s name or any of the City’s trademarks, service marks or logos. Furthermore, BetterUp shall
not make any public announcement of such fact or state or imply that City endorses or recommends the
BetterUp Services or the BetterUp Platform without the prior written permission of City.
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16.5 Subcontractors. BetterUp may use the services of Third-Party coaches and other subcontractors
and permit them to provide the BetterUp Services.
16.6 Third-Party Tools. The City acknowledges and agrees that Users may choose to utilize certain
third-party videoconferencing, communications tools and other services used by Users in connection with
BetterUp Services, e.g., Skype or FaceTime (“Third-Party Tools”). While user data provided to BetterUp
through Third-Party Tools remains subject to the BetterUp User Terms, use of Third-Party Tools
themselves is subject to the terms and conditions of the Third-Party Tool providers. BetterUp is not
responsible for the operation of or any changes to the Third-Party Tools or the acts or omissions of Third-
Party Tool providers.
16.7 Assignment. Neither this Agreement nor any right or duty under this Agreement may be
transferred, assigned or delegated, by operation of law or otherwise, without the prior written consent of
the non-assigning Party, and any attempted transfer, assignment or delegation without such consent will
be void and without effect. Notwithstanding the above, either Party may freely transfer, assign or delegate
this Agreement or its rights and duties under this Agreement without the consent of the non-assigning
party to an affiliate, as part of a change of control, or to a successor in interest to all or substantially all of
its business or assets. Subject to the foregoing, this Agreement will be binding upon and will inure to the
benefit of the Parties and their respective representatives, heirs, administrators, successors and permitted
assigns.
16.8 Notices. Notices will be deemed given as of the day they are received by email, messenger,
delivery service, or U.S. mail (postage prepaid, certified or registered, return receipt requested), and
addressed as set forth below, or to such other address as the Party to receive the notice so designates
by notice.
16.9 Waiver and Severability. A Party’s delay or failure to exercise a right or remedy will not result in
a waiver of that right or remedy. If a court of competent jurisdiction holds any provision of this Agreement
to be illegal, invalid or unenforceable under the governing law, the remaining provisions will remain in full
force and effect, and will be construed so as to most nearly reflect the Parties’ intent with respect to such
provision.
16.10 Integrated Agreement. This Agreement represents the full and complete understanding of every
kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of
whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to
vary the provisions hereof. Any modifications of this Agreement will be effective only by written execution
signed by both City and SaaS Provider and approved as to form by the City Attorney. This Agreement is
the product of negotiation and compromise between the parties. Accordingly, notwithstanding California
Civil Code Section 1654, in the event of uncertainty, the language shall not be construed against the Party
causing the uncertainty.
16.11 Counterparts. The Parties may execute this Agreement in counterparts, including facsimile, PDF
and other electronic copies, which taken together will constitute one instrument.
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By signing below, each Party acknowledges and agrees to be legally bound by the terms and conditions
set forth in this BetterUp Enterprise Agreement.
ATTEST:
______________________________
DENISE ANDERSON-WARREN
City Clerk
APPROVED AS TO FORM:
______________________________
LANE DILG
City Attorney
CITY OF SANTA MONICA,
a municipal corporation
By: ____________________________
RICK COLE
City Manager
#VENDOR
By: ____________________________
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George S. Cardona
Interim City Attorney
6/26/2020 BetterUp, Inc.
Vinh Le
CFO
6/29/2020
Interim City Manager
Lane Dilg
6/30/2020
City Clerk
Denise Anderson-Warren
7/8/2020
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EXHIBIT A - ORDER ONE
This Order is subject to the terms and conditions contained in the BetterUp Enterprise Agreement by and
between City of Santa Monica (“City”) and BetterUp, Inc. (“BetterUp”) (the “Agreement”), which is
incorporated into this Order by this reference. In the event of any conflict between the Agreement and this
Order, the Agreement shall prevail.
Description and Terms
Services BetterUp offers leadership, development, and performance coaching through
a variety of behavioral techniques and methods on the BetterUp Platform.
This consists of one-on-one videoconferencing with BetterUp coaches on the
BetterUp Platform and may also include other services such as access to on-
demand coaching, extended network, assessment and performance tools,
BetterUp Analytics, and other learning content. BetterUp provides the City
with the right to access BetterUp Platform and to enable its Users with
BetterUp Services during the Subscription Term.
Subscription The subscription provides the City with the rights to provide access during the
Subscription Term with the following User limits:
Up to a total of 25 Concurrent Users. A Concurrent User is defined as
the total number of individual Users who may, at a single point in time,
schedule and receive unlimited thirty (30) minute one-to-one coaching
sessions (typically one session per week) and full access to all
BetterUp Platform features, as well as on-demand coaching and
extended network.
For clarity, all access ceases on the Subscription Term end date (unless such
term is renewed via separate order form).
Subscription Term Start Date: August 3, 2020
End Date: August 2, 2021
Total Subscription Fee BetterUp Premium Platform Plan: U.S. $112,500 for 1 year
Payment Term City to follow invoice schedule below:
Payment # 1 – Due on September 2, 2020 - $28,125
Payment # 2 – Due on November 3, 2020 - $28,125
Payment # 3 – Due on February 3, 2021 - $28,125
Payment # 4 – Due on May 3, 2021 - $28,125
Total amount invoiced: U.S. $112,500.00
Additional Terms
1. Coaching Sessions and Users: Purchases of BetterUp Services are committed as of the
Order Effective Date, regardless of whether accounts are activated by Users or coaching time is
used. Coaching sessions/time cannot be banked or rolled over to renewals. City shall not be
entitled to receive any refund or credit if the total Concurrent Users is fewer than specified
above.
2. Payment: All invoices are due and payable within thirty (30) days of the invoice date. If City
requires a purchase order (“PO”) as indicated below, City will promptly provide a PO to BetterUp
(but City’s failure to provide a timely PO will not affect the payment timing in this Order).
3. City agrees and acknowledges that it has not relied on the future availability of any feature,
functionality, or product.
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PO # Required on Invoice: ☐ Yes or ☐ No If yes, PO #: _______________
Billing Information
Billing Contact:
Billing Email:
Billing Address:
Billing Phone:
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BetterUp Enterprise Agreement Apr 2020 10
EXHIBIT B
Uptime SLA
BetterUp shall use all reasonable commercial efforts, being no less than accepted industry standards, to
ensure that BetterUp Services are available to Customer and Users 99% of the time in any calendar month
(the "BetterUp Uptime SLA").
Definitions. The following definitions shall apply to the BetterUp Uptime SLA.
● "Downtime" means the period of time in which BetterUp Services are not accessible by Users.
● "Emergency Downtime" means those times where BetterUp becomes aware of a vulnerability
which, based on a risk assessment of the vulnerability, BetterUp deems to require immediate
remediation and, as a result, BetterUp Services are made temporarily unavailable in order for
BetterUp to address the vulnerability. Emergency Downtime is not considered Downtime for
purposes of this BetterUp Uptime SLA, and will not be counted towards any Downtime periods.
● "Monthly Uptime Percentage" means the total number of minutes in the calendar month
minus the number of minutes of Downtime suffered from all Downtime periods in the calendar
month, divided by the total number of minutes in the calendar month.
● "Scheduled Downtime" means those times where BetterUp notifies the City or Users of
periods of Downtime prior to the commencement of such Downtime. There will be no more than
twelve (12) hours of Scheduled Downtime per calendar year. Scheduled Downtime is not
considered Downtime for purposes of this BetterUp Uptime SLA, and will not be counted
towards any Downtime periods.
● "Services" means the services provided to City or Users via the BetterUp website located at
https://www.betterup.co/.
Right to terminate: In the event the Monthly Uptime Percentage is less than 99% three (3) times in a five
(5) month period, the City will have a right to terminate the BetterUp Service order form, with a pro-rated
refund of fees paid.
Uptime SLA Exclusions. The Uptime SLA does not apply to any performance issues: (i) caused by
factors outside of BetterUp's reasonable control; (ii) that resulted from any actions or inactions of City or
any third parties; (iii) that resulted from City’s or User’s equipment and/or third party equipment (not within
the primary control of BetterUp), (iv) Emergency Downtime; or (v) Scheduled Downtime. This BetterUp
Uptime SLA states City’s sole and exclusive remedy under the Agreement for any failure by BetterUp to
provide the Services as a result of Downtime. Notwithstanding, the foregoing shall not be understood as
a waiver of any rights or remedies the City may have in law or in equity.
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Exhibit C
Support
BetterUp will provide e-mail support twenty-four (24) hours a day, five (5) days a week for assistance in
identifying and resolving Errors in accordance with the Severity Levels and Response Times set forth in
this Exhibit D. BetterUp will be available to answer questions related to the operational use of the
BetterUp Platform. Weekend support is available for Severity 1 issues.
1. Definitions
For purposes of this Exhibit D, the following definitions apply:
a. “Error” means a defect in the BetterUp Platform that prevents the BetterUp Platform from
performing according to Agreement and the applicable Order. Errors include operation and
functionality defects, security defects, viruses and bugs.
b. “Initial Response” means a written or electronic response from BetterUp to City regarding a
reported or discovered Error acknowledging receipt.
c. “Temporary Resolution” means a temporary fix or patch that BetterUp has implemented
and incorporated into the BetterUp Platform to restore the BetterUp Platform functionality
in accordance until the Final Resolution is available.
d. “Final Resolution” means a permanent fix that BetterUp has implemented and incorporated
into BetterUp Platform to restore BetterUp Platform functionality.
2. General Support. BetterUp will provide support as set forth below:
BetterUp will provide all necessary resources to support troubleshooting and implementation of
the BetterUp Platform.
3. Severity Levels
When BetterUp initially detects an Error with the BetterUp Platform, or when City reports to
BetterUp an Error with the BetterUp Platform, the Error will be promptly classified by BetterUp in
accordance with the following severity incident guidelines.
Severity Incident
Level
Definition
Severity 1
A critical problem with the BetterUp Platform in
which any of the following occur: the BetterUp
Platform is down, inoperable, inaccessible or
unavailable or the BetterUp Platform otherwise
materially cease operation.
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4. Incident Response Service Level
BetterUp will respond to City and provide Initial Responses, Temporary Resolutions and Final
Resolutions in accordance with the time requirements set forth in the table below.
Severity 2
A problem with the BetterUp Platform in which
any of the following occur:
o the BetterUp Platform is severely limited or
degraded, major functions are not
performing properly; or
o The BetterUp Platform has been
interrupted but recovered, and in
BetterUp’s opinion there is high risk of
reoccurrence;
Severity
Level:
BetterUp’s Initial
Response will be
provided within:
BetterUp’s
Temporary
Resolution will be
provided within:
BetterUp’s Final
Resolution will be
provided within:
1
Two (2) hour from
receipt of initial
notice from City, or
other discovery, of
the Error
Eight (8) hours from
receipt of initial
notice from City, or
other discovery, of
the Error
Seven (7) days
from receipt of initial
notice from City, or
other discovery, of
the Error
2
Six (6) hours from
receipt of initial
notice from City, or
other discovery, of
the Error
Forty-eight (48)
hours from receipt
of initial notice from
City, or other
discovery, of the
Error
Fourteen (14) days
from receipt of initial
notice from City, or
other discovery, of
the Error
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BetterUp Enterprise Agreement Apr 2020 13
Exhibit D
Insurance Requirements and Verifications
BetterUp shall procure and maintain for the duration of the Agreement insurance against claims for injuries
to persons or damages to property that may arise from or in connection with the performance of the work
hereunder by BetterUp, its agents, representatives, employees, or subcontractors.
Minimum Scope and Limits of Insurance
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): CGL on an “occurrence” basis, including products and
completed operations, property damage, bodily injury and personal and advertising injury, with limits
of no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general
aggregate limit shall apply separately to this project/location or the general aggregate limit shall be
twice the required occurrence limit.
2. Automobile Liability: Automobile liability insurance with limits of no less than $1,000,000 per accident
for bodily injury and property damage.
3. Workers’ Compensation: Workers’ Compensation insurance as required by the State of California,
with Statutory Limits and Employers’ Liability Insurance.
If BetterUp maintains broader coverage or higher limits than the minimums shown above, the City of Santa
Monica requires and shall be entitled to the broader coverage or higher limits maintained by BetterUp.
Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage
shall be available to the City of Santa Monica.
Other Insurance Provisions
1. The insurance policies are to contain, or be endorsed to contain, the following provisions:
a. Additional Insured Status: The City of Santa Monica, its officers, officials, employees and
volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising
out of work or operations performed by or on behalf of BetterUp including materials, parts, or
equipment furnished in connection with such work or operations. CGL coverage can be provided
in the form of an endorsement to BetterUp’s insurance.
b. Intentionally Omitted
c. Notice of Cancellation: BetterUp shall provide notice to the City of Santa Monica in the event
there is a lapse in the coverage of the insurance requirements under this Agreement.
d. Intentionally Omitted.
Self-Insured Retentions
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BetterUp Enterprise Agreement Apr 2020 14
Self-insured retentions must be declared to and approved by the City of Santa Monica. The City of Santa
Monica may require BetterUp to purchase coverage with a lower retention or provide satisfactory proof of
ability to pay losses and related investigations, claim administration, and defense expenses within the
retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may
be satisfied by either the name insured or the City of Santa Monica.
Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in California with a current A.M.
Best rating of no less than A:VII, unless otherwise acceptable to the City of Santa Monica.
Verification of Coverage
BetterUp shall furnish the City of Santa Monica with certificates and amendatory endorsements. All
certificates and endorsements are to be received and approved by the City of Santa Monica before work
commences. However, failure to obtain required documents prior to the work beginning shall not waive
BetterUp’s obligation to provide them.
Failure to Maintain Insurance Coverage
If BetterUp, for any reason, fails to maintain insurance coverage which is required pursuant to this
Agreement, the same shall be deemed a material breach of contract. The City of Santa Monica, at its
sole option, may terminate this Agreement and obtain damages from BetterUp resulting from said breach.
Subcontractors
BetterUp shall re maintain insurance covering all subcontractors. All exceptions must be approved in
writing by the Risk Manager.
Footnotes
# 1: Workers’ Compensation insurance coverage is not required if BetterUp does not have employees.
The BetterUp must, however, execute the City’s Workers’ Compensation Coverage Exemption
Declaration Form.
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Packet Pg. 791 Attachment: Original Agreement - Attachment A (5123 : BetterUp Care Program Extension)
SECOND MODIFICATION TO
BETTERUP ENTERPRISE AGREEMENT
This Second Modification to the BETTERUP ENTERPRISE AGREEMENT (“Second
Modification”) is dated and executed as of _________________ ("Execution Date"), and is by
and between the CITY OF SANTA MONICA (“City”), a California Municipal corporation, and
BETTERUP, INC. (“BetterUp”), collectively referred to herein as “the Parties.”
RECITALS
A.The City and BetterUp are parties to the professional services agreement referred
to as the BetterUp Enterprise Agreement (hereinafter the "Original Agreement ") dated June 30,
2020. Under the Original Agreement BetterUp provides to City professional services related to
the leadership, development, and performance coaching of City personnel.
B.On March 25, 2021, the Parties executed the First Modification to BetterUp
Enterprise Agreement (“First Modification”). The First Modification amended the Original
Agreement to extend its term and to include additional services provided to the City by BetterUp
and the corresponding compensation.
B.The City and BetterUp now desire to further modify the Original Agreement to
include additional BetterUp services to be provided to the City and to adjust the compensation
paid to BetterUp for the additional services, and to do so under the terms and conditions agreed
to by the Parties to the Original Agreement as modified by the First Modification. The Original
Agreement and the First Modification are collectively referred hereafter as “the Agreement”for
the purposes of this Second Modification.
C.Any terms or conditions not specifically amended or provided for herein shall
have the meanings given to such terms and conditions as understood by the Parties by and
through their execution of the Agreement.
NOW, THEREFORE, the Agreement is amended as follows:
1. Section 8.1 of the Agreement (“Fees”), as amended by Section 2 of the First
Modification, is hereby deleted in its entirety and is replaced with the following:
“8.1 Fees.The fees and compensation to be paid by the City to BetterUp
for providing the City with the BetterUp Services under this Agreement is
set forth in the respective Orders that comprise Exhibit A. The total amount
of compensation paid by the City to BetterUp under this Agreement shall
not exceed $292,500, unless said total amount is modified by the Parties in
writing. Except as otherwise specified herein or in an Order that is included
in Exhibit A, (i) fees are based on access rights acquired and not actual
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2
usage, (ii) payment obligations are noncancelable and non-refundable, and
(iii) access rights purchased for the number of Users cannot be decreased
during the relevant Subscription Term.”
2. Exhibit A-3 “Order Three”, a copy of which is attached to this Second
Modification, is made a part of, and incorporated into, the Agreement.
Except as amended herein by this Second Modification, all other terms and conditions of
the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the Parties have executed this Second Modification on the
date set forth above.
ATTEST:
______________________________
DENISE ANDERSON-WARREN
City Clerk
APPROVED AS TO FORM:
______________________________
LANE DILG
City Attorney
CITY OF SANTA MONICA,
a municipal corporation
By:______________________________
RICK COLE
City Manager
oration
#VENDOR
By: ________________________________
DocuSign Envelope ID: 0EF3ACB4-BFA8-4BB3-BB59-683B3B111882
1/24/2022
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Packet Pg. 793 Attachment: Second Modification of Agreement with BetterUp - Attachment B (5123 : BetterUp Care Program Extension)
BetterUp Enterprise Order Form CU 2010910
013227-05736-00004277
1
EXHIBIT A-3 TO BETTERUP ENTERPRISE AGREEMENT
ORDER THREE
This Order is subject to the terms and conditions contained in the BetterUp Enterprise Agreement effective June 30, 2020 by and
between the City of Santa Monica, a California municipal corporation (“Company”) and BetterUp, Inc. (“BetterUp”) (the
“Agreement”), which is incorporated into this Order by this reference. In the event of any conflict between the Agreement and this
Order, the Agreement shall prevail.
Description and Terms
Services BetterUp offers wellbeing and performance coaching through a variety of behavioral techniques and
methods on the BetterUp Platform. This consists of one-on-one videoconferencing with BetterUp
Coaches on the BetterUp Platform and may also include other services such as access to extended
network, assessment and performance tools, BetterUp Analytics, and other learning content. BetterUp
provides the Company with the right to access BetterUp Platform and to enable its Users with BetterUp
Services during the Subscription Term.
Subscription The subscription provides the Company with the rights to provide access during the Subscription
Term with the following User limits:
1. Up to 2,500 BU Care Users. A BU Care User is defined as the total number of individual
Users who will be invited to the program and may, at any time, log into the BetterUp
Platform to schedule and receive thirty (30) minute one-to-one behavior health coaching
sessions (typically one session per week), schedule participation in coaching circles,
and full access to all BetterUp Platform features as well extended network.
For clarity, all access ceases on the Subscription Term end date (unless such term is renewed
via separate Scope of Work form).
Subscription Term Start Date: )HEUXDU\, 202
End Date: -XQH
Subscription Fee U.S. $40,000.00
Payment Term Invoiced upon execution of this Order: U.S. $40,000.00 after a one-time discount of $9,000
Additional Terms
Coaching Sessions and Users: Purchases of BetterUp Services are committed as of the Order Effective Date, regardless
of whether accounts are activated by Users or Coaching time is used. Coaching sessions/time cannot be banked or rolled
over to renewals. Company shall not be entitled to receive any refund or credit if the total Users is fewer than specified above.
Payment: All invoices are due and payable within thirty (30) days of the invoice date. If Company requires a purchase order
(“PO”) as indicated below, Company will promptly provide a PO to BetterUp (but Company’s failure to provide a timely PO will not
affect the payment timing in this Order).
Company agrees and acknowledges that it has not relied on the future availability of any feature, functionality, or product.
PO # Required on Invoice: Yes or No If yes, PO #: _______________
Billing Information
Billing Contact: City of Santa Monica HR Department
Billing Email: sasha.sargent@smgov.net
Billing Address: 1685 Main St. Ste. 101, Santa Monica, CA
90405
Billing Phone: 310-458-8246
[SIGNATURE PAGE TO FOLLOW]
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BetterUp Enterprise Order Form CU 2010910
013227-05736-00004277
2
This Order shall be effective upon execution by Company and BetterUp (“Order Effective Date”).
COMPANY BETTERUP, INC.
Signature:
Print Name:
Title:
Date: _______________________________________
Signature:
Print Name:
Title:
Date: _______________________________________
By NF at 1:50 pm, Oct 08, 2021
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Packet Pg. 795 Attachment: Second Modification of Agreement with BetterUp - Attachment B (5123 : BetterUp Care Program Extension)
CITY OF SANTA MONICA
OAKS INITIATIVE NOTICE
NOTICE TO APPLICANTS, BIDDERS, PROPOSERS
AND OTHERS SEEKING DISCRETIONARY PERMITS, CONTRACTS,
OR OTHER BENEFITS FROM THE CITY OF SANTA MONICA
Santa Monica’s voters adopted a City Charter amendment commonly known as
the Oaks Initiative. The Oaks Initiative requires the City to provide this notice and
information about the Initiative’s requirements. You may obtain a full copy of the Initiative’s
text from the City Clerk.
This information is required by City Charter Article XXII—Taxpayer Protection. It
prohibits a public official from receiving, and a person or entity from conferring, specified
personal benefits or campaign advantages from a person or entity after the official votes,
or otherwise takes official action, to award a “public benefit” to that person or entity. The
prohibition applies within and outside of the geographical boundaries of Santa Monica.
All persons or entities applying or receiving public benefits from the City of Santa
Monica shall provide the names of trustees, directors, partners, and officers, and names
of persons with more than a 10% equity, participation or revenue interest. An exception
exists for persons serving in those capacities as volunteers, without compensation, for
organizations exempt from income taxes under Section 501(c)(3), (4), or (6), of the
Internal Revenue Code. However, this exception does not apply if the organization is a
political committee or controls political committees. Examples of a “public benefit” include
public contracts to provide goods or services worth more than $25,000 or a land use
approval worth more than $25,000 over a 12-month period.
In order to facilitate compliance with the requirements of the Oaks Initiative, the City
compiles and maintains certain information. That information includes the name of any
person or persons who is seeking a “public benefit.” If the “public benefit” is sought by an
entity, rather than an individual person, the information includes the name of every person
who is: (a) trustee, (b) director, (c) partner, (d) officer, or has (e) more than a ten percent
interest in the entity. Therefore, if you are seeking a “public benefit” covered by the Oaks
Initiative, you must supply that information on the Oaks Initiative Disclosure Form. This
information must be updated and supplied every 12 months.
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CITY OF SANTA MONICA
OAKS INITIATIVE DISCLOSURE FORM
In order to facilitate compliance with the requirements of the Oaks Initiative, the City
compiles and maintains certain information. That information includes the name of any
person or persons who is seeking a “public benefit.” If the “public benefit” is sought by
an entity, rather than an individual person, the information includes the name of every
person who is: (a) trustee, (b) director, (c) partner, (d) officer, or has (e) more than a ten
percent interest in the entity.
Public benefits include:
1. Personal services contracts in excess of $25,000 over any 12-month period;
2. Sale of material, equipment or supplies to the City in excess of $25,000 over a 12-
month period;
3. Purchase, sale or lease of real property to or from the City in excess of $25,000
over a 12- month period;
4. Non-competitive franchise awards with gross revenue of $50,000 or more in any
12-month period;
5. Land use variance, special use permit, or other exception to an established land
use plan, where the decision has a value in excess of $25,000;
6. Tax “abatement, exception, or benefit” of a value in excess of $5,000 in any 12-
month period; or
7. Payment of “cash or specie” of a net value to the recipient of $10,000 in any 12-
month period.
Name(s) of persons or entities receiving public benefit:
Name(s) of trustees, directors, partners, and officers:
Name(s) of persons with more than a 10% equity, participation, or revenue interest:
Prepared by: ____________________________Title: __________________________
Signature: ______________________________________ Date: ________________
Email: ____________________________________ Phone: ____________________
FOR CITY USE ONLY:
Bid/PO/Contract # ____________________________ Permit # ___________________________
By NF at 1:55 pm, Mar 28, 2022
Vinh Le CFO
3/28/2022
contracts@betterup.co (844) 303-9595
BetterUp, Inc.
BetterUp does not disclose this information.
BetterUp does not disclose this information. Any person with 10% equity, if any, is not
affiliated with the City of Santa Monica.
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