HomeMy WebLinkAboutAgreement A-21-329 with Ferguson Praet Sherman.pdf1
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AGREEMENT FOR SPECIALIZED LEGAL SERVICES
THIS AGREEMENT is made and entered into this ____day of ________2021 by
and between the COUNTY OF FRESNO, a political subdivision of the State of
California, hereinafter referred to as "COUNTY," and Ferguson, Praet and Sherman, a
Professional Corporation, hereinafter referred to as "ATTORNEY."
W I T N E S S E T H:
WHEREAS, COUNTY is responsible for the administration and defense of
General Liability, Auto Liability, Employment Law and Medical Malpractice claims
against COUNTY employee(s).
WHEREAS, COUNTY needs and wishes to engage appropriate legal counsel,
who is skilled and knowledgeable in defense of General Liability claims or other claims
that are covered under the County’s General Liability and Medical Malpractice
Programs, and to advise and represent COUNTY employee(s) in connection with the
matters, as provided herein; and
WHEREAS, ATTORNEY states that it is experienced, possesses expertise in
such matters, and is willing to perform said services,
NOW, THEREFORE, in consideration of the mutual covenants, terms and
conditions herein contained, the Parties hereto agree as follows:
SECTION 1
ENGAGEMENT OF ATTORNEY
1.1 COUNTY hereby engages ATTORNEY as an independent contractor, and
any associated staff ATTORNEY and paralegals or other legal support staff as
ATTORNEY deems necessary, and whom COUNTY Human Resources Department,
Risk Management Division approves.
1.2 Each claim will be handled by the ATTORNEY to which the assignment is
made unless COUNTY approves the handling by another ATTORNEY in the firm.
24th August
Agreement No. 21-329
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Associated staff may assist the ATTORNEY as deemed necessary.
1.3 Any additional instructions relative to the handling of a claim which are not
specified or otherwise alluded to in this Agreement will be included in the letter of
engagement for each claim assigned to ATTORNEY. Such instructions will be complied
with by ATTORNEY as well as any additional client direction in the management of the
claim.
SECTION 2
SCOPE OF SERVICES
2.1 ATTORNEY shall assist, advise, and represent COUNTY employee(s) in
connection with all matters relative to the administration and defense of the claims
assigned by Human Resources Department, Risk Management Division staff, as
specified by COUNTY and per the terms set forth in this Agreement.
2.2 ATTORNEY shall perform such other similar legal services as requested
by COUNTY Risk Management in connection with the matters related to the
administration and defense of the assigned claims.
SECTION 3
PERFORMANCE BY ATTORNEY
3.1 ATTORNEY agrees to avoid unnecessary duplicative efforts by
ATTORNEY and any associated counsel and/or staff members of ATTORNEY in the
performance of services for COUNTY hereunder.
3.2 COUNTY shall not be obligated to compensate ATTORNEY for intra-office
conferences between or among ATTORNEY, associate ATTORNEYs, and/or other staff
members, unless such intra-office conferences promote efficiency in the performance of
ATTORNEY'S work on a matter, or a reduction in the cost of compensation paid or
reimbursement made for related, actual, reasonable and necessary, out-of-pocket
expenses to ATTORNEY, or both.
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3.3 In the performance of the tasks identified in Section 2 of this Agreement,
ATTORNEY shall provide only those services which are necessary to carry out such
tasks in an efficient and effective manner.
3.4 COUNTY must approve the retention of all experts, consultants,
investigators, and any other unusual expenditures.
SECTION 4
COMPENSATION OF ATTORNEY
4.1 COUNTY shall be obligated to compensate ATTORNEY pursuant to the
terms and conditions of this Agreement and for the performance of those tasks
identified in Section 2 of this Agreement, to the reasonable satisfaction of the COUNTY,
that take place during the term of this Agreement. It is understood that COUNTY shall
not be obligated to compensate ATTORNEY for:
(a) any work, services, or functions performed by ATTORNEY that do not
arise directly from the performance of tasks identified in Section 2 of this Agreement;
and
(b)providing COUNTY with documentation, explanations, or justifications
concerning the adequacy or accuracy of ATTORNEY's invoices for the performance of
services under this Agreement, and resolving same to the reasonable satisfaction of
COUNTY.
4.2 COUNTY agrees to pay and ATTORNEY agrees to accept as full
compensation for performance of tasks under this Agreement ATTORNEY's reasonable
fees as described in Attachment A, Schedule of Rates.
4.3 ATTORNEY shall be reimbursed for actual, reasonable, and necessary
out-of-pocket expenses, as follows: telephone charges, facsimile charges, computer
research charges, filing fees, postage charges, printing and photographic reproduction
expenses, and all other directly-related expenses. It is understood that ATTORNEY
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shall not be reimbursed for his secretarial, clerical, word processing or typist services
(including overtime hours worked), that is "normal office operating expenses," with the
exception of those charges and expenses stated above. In addition, ATTORNEY shall
not be reimbursed for such normal office operating expenses incurred, regardless of
who performs such services or incurs such expenses.
4.4 COUNTY will not reimburse ATTORNEY for any travel within the cities of
Fresno and Clovis.
4.5 Notwithstanding anything else stated to the contrary in this Agreement, in
no event shall the maximum amount paid by COUNTY to ATTORNEY as
compensation, and as reimbursement of related, actual, reasonable and necessary, out-
of-pocket expenses, exceed one million five hundred thousand dollars ($1,500,000.00)
annually.
SECTION 5
PAYMENT AND RECORD-KEEPING
5.1 Subject to Section 4 of this Agreement, payment of compensation for the
services provided and reimbursement for related, actual, reasonable and necessary,
out-of-pocket expenses incurred which are described herein shall be made by COUNTY
after submission of an itemized invoice by ATTORNEY to Human Resources
Department, Risk Management Division. ATTORNEY shall submit such invoices no
later than the twentieth (20th) day of the month following the month services are
completed, unless the bill totals less than one hundred dollars ($100). The file will not
be billed until the total reaches at least one hundred dollars ($100) or the claim is
closed. All payments by COUNTY will be made within forty-five (45) days after receipt,
verification and approval of ATTORNEY’S invoices by COUNTY’S Human Resources
Department, Risk Management Division.
5.2 All such invoices shall have sufficient detail as may be required by the
COUNTY Auditor-Controller/Treasurer-Tax Collector, including, but not limited to:
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5.2.1 The plaintiff’s name, the date of loss, the COUNTY’s claim number and
any other identifying information that will indicate the file to which billing is to be
assigned.
5.2.2 The specific nature of each task performed as services under this
Agreement;
5.2.3 The name of the ATTORNEY or staff member performing each task;
5.2.4 The number of hours worked by each such person for each such task;
5.2.5 The hourly rate per each such person performing each such task;
5.2.6 The related, actual, reasonable and necessary, out-of-pocket expenses
incurred, as provided for in Section 4 of this Agreement;
5.2.7 A certification by ATTORNEY that each such invoice is true and accurate
as to the information and specification contained therein;
5.3 In addition to the requirements of Section 5.2, each invoice shall set forth
a summary of hours worked by each ATTORNEY and staff member for the applicable
billing period. Each invoice shall set forth the product of such summary of hours worked
by each person multiplied by each such person's billing rate, as set forth in Attachment
A, Schedule of Rates.
5.4 In preparing invoices, if requested by COUNTY Human Resources
Department, Risk Management Division, ATTORNEY shall segregate each task
performed on a daily basis. If so requested by COUNTY, ATTORNEY shall not
combine unrelated tasks as a single entry in lieu of setting forth the hours of work
performed by an ATTORNEY or staff member on each specific task.
5.5 ATTORNEY shall prepare all invoices in an organized manner that
facilitates an efficient review of the services performed and the expenses incurred in
order to provide COUNTY with a clear and complete picture of how much time was
devoted to specific tasks and projects, and the cost associated therewith.
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5.6 ATTORNEY shall keep complete records of the services provided, as
described in this Section 5, together with all related actual, reasonable and necessary,
out-of-pocket expenses applicable to the work provided under this Agreement. The
County Auditor-Controller/Treasurer-Tax Collector, or his or her duly authorized
representatives, shall be given reasonable access to all of these records for the
purposes of audit of this Agreement. In addition, ATTORNEY shall be subject to the
examination and audit of such records by the State Auditor for a period of three (3)
years after final payment under this Agreement, pursuant to Government Code section
8546.7, as applicable.
5.7 Attorney shall provide to COUNTY a W-9, 1099 and CA Form 590 as
appropriate upon execution of the agreement and annually thereafter.
SECTION 6
TERM OF AGREEMENT
6.1 This Agreement shall be effective and shall commence August 24, 2021.
This agreement shall continue in full force and effect until August 23, 2024. This
Agreement may be extended for two (2) additional consecutive twelve (12) month
periods upon written approval of both parties no later than thirty (30) days prior to the
first day of the next twelve (12) month extension period. The Director of the Human
Resources Department, or his designee, is authorized to execute such written approval
on behalf of COUNTY based on ATTORNEY’s satisfactory performance. COUNTY
may terminate this Agreement at any time for any reason by providing written notice to
ATTORNEY.
6.2 ATTORNEY may terminate this Agreement for material breach after giving
COUNTY written notice and 10 days to correct the breach. However, COUNTY's rights
under any pending matter which may arise from ATTORNEY's service hereunder shall
not be prejudiced due to such termination, as required by the Rules of Professional
Conduct of the State Bar of California. Subject to Section 4 of this Agreement,
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ATTORNEY shall be paid for all services performed to the reasonable satisfaction of the
COUNTY, to the date of termination of this Agreement.
SECTION 7
INDEPENDENT CONTRACTOR
7.1 In performance of the work, duties, and obligations assumed by
ATTORNEY under this Agreement, it is mutually understood and agreed that
ATTORNEY, including any and all of ATTORNEY’s officers, agents, and employees, will
at all times be acting and performing as an independent contractor, and shall act in an
independent capacity and not as an officer, agent, servant, employee, joint venturer,
partner, or associate of COUNTY. However, COUNTY shall retain the right to
administer this Agreement to verify that ATTORNEY is performing its obligations in
accordance with the terms and conditions thereof. ATTORNEY and COUNTY shall
comply with all applicable provisions of law and the rules and regulations, if any, of
governmental authorities having jurisdiction over the subject matter thereof.
7.2 Because of its status as an independent contractor, ATTORNEY, including
any and all of ATTORNEY's officers, agents, and employees, shall have absolutely no
right to employment rights and benefits available to COUNTY employees. ATTORNEY
shall be solely liable and responsible for providing to, or on behalf of, its employees all
legally required employee benefits. In addition, ATTORNEY shall be solely responsible
and hold COUNTY harmless from all matters related to payment of ATTORNEY's
employees, including compliance with social security, withholding, and all other
regulations governing such matters. It is acknowledged that during the term of this
Agreement, ATTORNEY may be providing services to others unrelated to the COUNTY
or to this Agreement.
SECTION 8
HOLD HARMLESS
8.1 ATTORNEY agrees to indemnify, save, hold harmless, and at COUNTY'S
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request, defend the COUNTY, its officers, agents, and employees from any and all costs
and expenses (including attorney’s fees and costs), damages, liabilities, claims, and
losses occurring or resulting to COUNTY in connection with the performance, or failure to
perform, by ATTORNEY, its officers, agents, or employees under this Agreement, and
from any and all costs and expenses (including attorney’s fees and costs), damages,
liabilities, claims, and losses occurring or resulting to any person, firm, or corporation who
may be injured or damaged by the performance, or failure to perform, of ATTORNEY,
its officers, agents, or employees under this Agreement.
SECTION 9
INSURANCE
Without limiting the COUNTY’s right to obtain indemnification from ATTORNEY
or any third parties, ATTORNEY, at its sole expense, shall maintain in full force and
effect, the following insurance policies or a program of self-insurance, including but not
limited to, an insurance pooling arrangement or Joint Powers Agreement (JPA)
throughout the term of the Agreement:
9.1 Professional Liability
ATTORNEY shall maintain Professional Liability Insurance with limits of
not less than one million dollars ($1,000,000.00) per occurrence and three million
dollars ($3,000,000.00) annual aggregate. ATTORNEY shall provide COUNTY with
written evidence of such coverage. This coverage may be issued on a per claim basis.
If so, ATTORNEY agrees that it shall maintain, at its sole expense, so-called “tail
coverage” in full force and effect for a period of three (3) years following the termination
of this Agreement, which shall be one or more policies of professional liability insurance
with limits of coverage as specified herein.
9.2 Automobile Liability
Comprehensive Automobile Liability Insurance with limits of not less than One
Million Dollars ($1,000,000.00) per accident for bodily injury and for property damages.
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Coverage should include any auto used in connection with this Agreement.
9.3 Commercial General Liability
ATTORNEY shall maintain Commercial General Liability Insurance with
limits of not less than two million dollars ($2,000,000.00) per occurrence and an annual
aggregate of four million dollars ($4,000,000.00). This policy shall be issued on a per-
occurrence basis. COUNTY may require specific coverage including completed
operations, product liability, contractual liability, explosion-collapse-underground liability,
fire legal liability, or any other liability insurance deemed necessary because of the
nature of the contract.
9.4 Workers’ Compensation
ATTORNEY shall maintain a policy of Workers’ Compensation insurance
as may be required by the California Labor Code.
9.5 Cyber Liability
Cyber Liability Insurance, with limits not less than $2,000,000 per
occurrence or claim, $2,000,000 aggregate. Coverage shall be sufficiently broad to
respond to the duties and obligations as is undertaken by CONTRACTOR in this
Agreement and shall include, but not be limited to, claims involving infringement of
intellectual property, including but not limited to infringement of copyright, trademark,
trade dress, invasion of privacy violations, information theft, damage to or destruction of
electronic information, release of private information, alteration of electronic information,
extortion and network security. The policy shall provide coverage for breach response
costs as well as regulatory fines and penalties as well as credit monitoring expenses
with limits sufficient to respond to these obligations.
SECTION 10
ADDITIONAL INSURANCE TERMS
10.1 ATTORNEY shall obtain endorsements to the Commercial General
Liability insurance naming the County of Fresno, its officers, agents, and employees,
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individually and collectively, as additional insured, but only insofar as the operations
under this Agreement are concerned. Such coverage for additional insured shall apply
as primary insurance and any other insurance, or self-insurance, maintained by County,
its officers, agents and employees shall be excess only and not contributing with
insurance provided under ATTORNEY’s policies herein. This insurance shall not be
cancelled or changed without a minimum of thirty (30) days advance written notice
given to COUNTY.
10.2 ATTORNEY hereby waives its right to recover from COUNTY, its officers,
agents, and employees any amounts paid by the policy of worker’s compensation
insurance required by this Agreement. ATTORNEY is solely responsible to obtain any
endorsement to such policy that may be necessary to accomplish such waiver of
subrogation, but ATTORNEY’s waiver of subrogation under this paragraph is effective
whether or not ATTORNEY obtains such an endorsement.
10.3 Within thirty (30) days from the date ATTORNEY executes this
Agreement, ATTORNEY shall provide certificates of insurance and endorsement as
stated above for all of the foregoing policies, as required in Section 9 herein, to
COUNTY, Human Resources Department, Risk Management Division, stating that such
insurance coverage has been obtained and is in full force and effect; that the County of
Fresno, its officers, agents and employees will not be responsible for any premiums on
the policies; that for such worker’s compensation insurance the ATTORNEY has waived
its right to recover from the COUNTY, its officers, agents, and employees any amounts
paid under the insurance policy and that waiver does not invalidate the insurance policy;
that such Commercial General Liability insurance names the COUNTY, its officers,
agents and employees, individually and collectively, as additional insured, but only
insofar as the operations under this Agreement are concerned; that such coverage for
additional insured shall apply as primary insurance and any other insurance, or self-
insurance, maintained by COUNTY, its officers, agents and employees, shall be excess
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only and not contributing with insurance provided under ATTORNEY’s policies herein;
and that this insurance shall not be cancelled or changed without a minimum of thirty
(30) days advance, written notice given to COUNTY.
10.3 In the event ATTORNEY fails to keep in effect at all times insurance
coverage as herein provided, the COUNTY may, in addition to other remedies it may
have, suspend or terminate this Agreement upon the occurrence of such event.
10.4 All policies shall be with admitted insurers licensed to do business in the
State of California. Insurance purchased shall be purchased from companies
possessing a current A.M. Best, Inc. rating of A, FSC VII or better.
SECTION 11
AGREEMENT BINDING ON SUCCESSORS
11.1 This Agreement shall be binding upon COUNTY and ATTORNEY and
their successors, executors, administrators, legal representatives, and assigns with
respect to all the covenants and conditions set forth herein.
SECTION 12
ASSIGNMENT AND SUBCONTRACTING
12.1 Neither party hereto shall assign, transfer, or sub-contract neither this
Agreement nor its rights nor duties hereunder without the written consent of the other.
County Risk Manager, or his or her designee, may give such consent on behalf of the
COUNTY, provided however, the assignee, transferee or sub-contractor shall carry
insurance of a type and in an amount that is acceptable to COUNTY's Risk Manager, or
his or her designee.
SECTION 13
AMENDMENTS
13.1 This Agreement may be amended only in writing signed by the Parties
hereto.
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SECTION 14
CONFLICT OF INTEREST
14.1 ATTORNEY promises, covenants, and warrants that the performance of
their services and representation of COUNTY under this Agreement do not result in a
"conflict of interest" as that term is used in the Rules of Professional Conduct of the
State Bar of California. In the event a "conflict of interest" occurs, ATTORNEY will
request that COUNTY waive such "conflict of interest" on a case-by-case basis. If the
COUNTY does not waive the conflict, ATTORNEY must resolve the conflicting issue in
the favor of COUNTY.
SECTION 15
FURTHER ASSURANCES BY ATTORNEYS
15.1 ATTORNEY represents that it has read and is familiar with Government
Code Section 1090 et seq. and Section 87100 et seq. ATTORNEY promises,
covenants, and warrants that the performance of its services under this Agreement shall
not result in or cause a violation of Government Code Section 1090 et seq. and Section
87100 et seq.
SECTION 16
COMPLIANCE WITH LAWS
16.1 ATTORNEY shall comply with all federal, state, and local laws and
regulations applicable to the performance of its obligations under this Agreement and
maintain all licenses as required in the performance of its duties.
SECTION 17
HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT
17.1 The parties to this Agreement shall be in strict conformance with all
applicable Federal and State of California laws and regulations, including, but not
limited to Sections 5328, 10850, and 14100.2 et seq. of the Welfare and Institutions
Code, Sections 2.1 and 431.300 et seq. of Title 42, Code of Federal Regulations (CFR),
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Section 56 et seq. of the California Civil Code, Sections 11977 and 11812 of Title 22 of
the California Code of Regulations, and the Health Insurance Portability and
Accountability Act (HIPAA), including but not limited to Section 1320 D et seq. of Title
42, United States Code (USC) and its implementing regulations, including, but not
limited to, Title 45, CFR, Sections 142, 160, 162, and 164, The Health Information
Technology for Economic and Clinical Health Act (HITECH) regarding the confidentiality
and security of patient information, and the Genetic Information Nondiscrimination Act
(GINA) of 2008 regarding the confidentiality of genetic information.
Except as otherwise provided in this Agreement, ATTORNEY, as a Business
Associate of COUNTY, may use or disclose Protected Health Information (PHI) to
perform functions, activities or services for or on behalf of COUNTY, as specified in this
Agreement, provided that such use or disclosure shall not violate the Health Insurance
Portability and Accountability Act (HIPAA), USC 1320d et seq. The uses and
disclosures of PHI may not be more expansive than those applicable to COUNTY, as
the “Covered Entity” under the HIPAA Privacy Rule (45 CFR 164.500 et seq.), except as
authorized for management, administrative or legal responsibilities of the Business
Associate.
17.2 ATTORNEY, including its subcontractors and employees, shall protect
from unauthorized access, use, or disclosure of names and other identifying
information, including genetic information, concerning persons receiving services
pursuant to this Agreement, except where permitted in order to carry out data
aggregation purposes for health care operations [45 CFR Sections 164.504 (e)(2)(i),
164.504 (3)(2)(ii)(A), and 164.504 (e)(4)(i)]. This pertains to any and all persons
receiving services pursuant to a COUNTY funded program. This requirement applies to
electronic PHI. ATTORNEY shall not use such identifying information or genetic
information for any purpose other than carrying out ATTORNEY’s obligations under this
Agreement.
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17.3 ATTORNEY, including its subcontractors and employees, shall not
disclose any such identifying information or genetic information to any person or entity,
except as otherwise specifically permitted by this Agreement, authorized by Subpart E
of 45 CFR Part 164 or other law, required by the Secretary, or authorized by the
client/patient in writing. In using or disclosing PHI that is permitted by this Agreement or
authorized by law, ATTORNEY shall make reasonable efforts to limit PHI to the
minimum necessary to accomplish intended purpose of use, disclosure or request.
17.4 For purposes of the above sections, identifying information shall include,
but not be limited to, name, identifying number, symbol, or other identifying particular
assigned to the individual, such as fingerprint or voiceprint, or photograph.
17.5 For purposes of the above sections, genetic information shall include
genetic tests of family members of an individual or individual(s), manifestation of
disease or disorder of family members of an individual, or any request for or receipt of
genetic services by individual or family members. Family member means a dependent
or any person who is first, second, third, or fourth degree relative.
17.6 ATTORNEY shall provide access, at the request of COUNTY, and in the
time and manner designated by COUNTY, to PHI in a designated record set (as defined
in 45 CFR Section 164.501), to an individual or to COUNTY in order to meet the
requirements of 45 CFR Section 164.524 regarding access by individuals to their PHI.
With respect to individual requests, access shall be provided within thirty (30) days from
request. Access may be extended if ATTORNEY cannot provide access and provides
individual with the reasons for the delay and the date when access may be granted.
PHI shall be provided in the form and format requested by the individual or COUNTY.
ATTORNEY shall make any amendment(s) to PHI in a designated record set at
the request of COUNTY or individual, and in the time and manner designated by
COUNTY in accordance with 45 CFR Section 164.526.
ATTORNEY shall provide to COUNTY or to an individual, in a time and manner
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designated by COUNTY, information collected in accordance with 45 CFR Section
164.528, to permit COUNTY to respond to a request by the individual for an accounting
of disclosures of PHI in accordance with 45 CFR Section 164.528.
17.7 ATTORNEY shall report to COUNTY, in writing, any knowledge or
reasonable belief that there has been unauthorized access, viewing, use, disclosure,
security incident, or breach of unsecured PHI not permitted by this Agreement of which
it becomes aware, immediately and without reasonable delay and in no case later than
two (2) business days of discovery. Immediate notification shall be made to COUNTY’s
Information Security Officer and Privacy Officer and COUNTY’s DPH HIPAA
Representative, within two (2) business days of discovery. The notification shall
include, to the extent possible, the identification of each individual whose unsecured
PHI has been, or is reasonably believed to have been, accessed, acquired, used,
disclosed, or breached. ATTORNEY shall take prompt corrective action to cure any
deficiencies and any action pertaining to such unauthorized disclosure required by
applicable Federal and State laws and regulations. ATTORNEY shall investigate such
breach and is responsible for all notifications required by law and regulation or deemed
necessary by COUNTY and shall provide a written report of the investigation and
reporting required to COUNTY’s Information Security Officer and Privacy Officer and
COUNTY’s DPH HIPAA Representative.
This written investigation and description of any reporting necessary shall be
postmarked within the thirty (30) working days of the discovery of the breach to the
addresses below:
County of Fresno County of Fresno County of Fresno
Dept. of Public Health Svcs. Dept. of Public Health Information Technology
HIPAA Representative Privacy Officer Information Security Officer
(559) 600-6439 (559) 600-6405 (559) 600-5800
P.O. Box 11867 P.O. Box 11867 2048 N. Fine Street
Fresno, CA 93775 Fresno, CA 93775 Fresno, CA 93727
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17.8 ATTORNEY shall make its internal practices, books, and records relating
to the use and disclosure of PHI received from COUNTY, or created or received by the
ATTORNEY on behalf of COUNTY, in compliance with HIPAA’s Privacy Rule, including,
but not limited to, the requirements set forth in Title 45, CFR, Sections 160 and 164.
ATTORNEY shall make its internal practices, books, and records relating to the use and
disclosure of PHI received from COUNTY, or created or received by the ATTORNEY on
behalf of COUNTY, available to the United States Department of Health and Human
Services (Secretary) upon demand.
ATTORNEY shall cooperate with the compliance and investigation reviews
conducted by the Secretary. PHI access to the Secretary must be provided during the
ATTORNEY’s normal business hours; however, upon exigent circumstances access at
any time must be granted. Upon the Secretary’s compliance or investigation review, if
PHI is unavailable to ATTORNEY and in possession of a Subcontractor, it must certify
efforts to obtain the information to the Secretary.
17.9 Safeguards
ATTORNEY shall implement administrative, physical, and technical safeguards
as required by the HIPAA Security Rule, Subpart C of 45 CFR 164, that reasonably and
appropriately protect the confidentiality, integrity, and availability of PHI, including
electronic PHI, that it creates, receives, maintains or transmits on behalf of COUNTY
and to prevent unauthorized access, viewing, use, disclosure, or breach of PHI other
than as provided for by this Agreement. ATTORNEY shall conduct an accurate and
thorough assessment of the potential risks and vulnerabilities to the confidentiality,
integrity and availability of electronic PHI. ATTORNEY shall develop and maintain a
written information privacy and security program that includes administrative, technical
and physical safeguards appropriate to the size and complexity of ATTORNEY’s
operations and the nature and scope of its activities. Upon COUNTY’s request,
ATTORNEY shall provide COUNTY with information concerning such safeguards.
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ATTORNEY shall implement strong access controls and other security
safeguards and precautions in order to restrict logical and physical access to
confidential, personal (e.g., PHI) or sensitive data to authorized users only. Said
safeguards and precautions shall include the following administrative and technical
password controls for all systems used to process or store confidential, personal, or
sensitive data:
1.Passwords must not be:
a.Shared or written down where they are accessible or
recognizable by anyone else; such as taped to computer screens, stored under
keyboards, or visible in a work area;
b.A dictionary word; or
c.Stored in clear text
2.Passwords must be:
a.Eight (8) characters or more in length;
b.Changed every ninety (90) days;
c.Changed immediately if revealed or compromised; and
d.Composed of characters from at least three (3) of the
following four (4) groups from the standard keyboard:
1) Upper case letters (A-Z);
2)Lowercase letters (a-z);
3)Arabic numerals (0 through 9); and
4)Non-alphanumeric characters (punctuation
symbols).
ATTORNEY shall implement the following security controls on each workstation
or portable computing device (e.g., laptop computer) containing confidential, personal,
or sensitive data:
1.Network-based firewall and/or personal firewall;
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2.Continuously updated anti-virus software; and
3.Patch management process including installation of all operating
system/software vendor security patches.
ATTORNEY shall utilize a commercial encryption solution that has received FIPS
140-2 validation to encrypt all confidential, personal, or sensitive data stored on portable
electronic media (including, but not limited to, compact disks and thumb drives) and on
portable computing devices (including, but not limited to, laptop and notebook
computers).
ATTORNEY shall not transmit confidential, personal, or sensitive data via e-mail
or other internet transport protocol unless the data is encrypted by a solution that has
been validated by the National Institute of Standards and Technology (NIST) as
conforming to the Advanced Encryption Standard (AES) Algorithm. ATTORNEY must
apply appropriate sanctions against its employees who fail to comply with these
safeguards. ATTORNEY must adopt procedures for terminating access to PHI when
employment of employee ends.
17.10 Mitigation of Harmful Effects
ATTORNEY shall mitigate, to the extent practicable, any harmful effect that is
suspected or known to ATTORNEY of an unauthorized access, viewing, use,
disclosure, or breach of PHI by ATTORNEY or its subcontractors in violation of the
requirements of these provisions. ATTORNEY must document suspected or known
harmful effects and the outcome.
17.11 ATTORNEY’s Subcontractors
ATTORNEY shall ensure that any of its contractors, including subcontractors, if
applicable, to whom ATTORNEY provides PHI received from or created or received by
ATTORNEY on behalf of COUNTY, agree to the same restrictions, safeguards, and
conditions that apply to ATTORNEY with respect to such PHI and to incorporate, when
applicable, the relevant provisions of these provisions into each subcontract or sub-
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award to such agents or subcontractors.
17.12 Employee Training and Discipline
ATTORNEY shall train and use reasonable measures to ensure compliance with
the requirements of these provisions by employees who assist in the performance of
functions or activities on behalf of COUNTY under this Agreement and use or disclose
PHI, and discipline such employees who intentionally violate any provisions of these
provisions, including termination of employment.
17.13 Termination for Cause
Upon COUNTY’s knowledge of a material breach of these provisions by
ATTORNEY, COUNTY shall either:
1.Provide an opportunity for ATTORNEY to cure the breach or end
the violation and terminate this Agreement if ATTORNEY does not cure the breach or
end the violation within the time specified by COUNTY; or
2.Immediately terminate this Agreement if ATTORNEY has breached
a material term of these provisions and cure is not possible.
3.If neither cure nor termination is feasible, the COUNTY’s Privacy
Officer shall report the violation to the Secretary of the U.S. Department of Health and
Human Services.
17.14 Judicial or Administrative Proceedings
COUNTY may terminate this Agreement in accordance with the terms and
conditions of this Agreement as written hereinabove, if: (1) ATTORNEY is found guilty
in a criminal proceeding for a violation of the HIPAA Privacy or Security Laws or the
HITECH Act; or (2) a finding or stipulation that the ATTORNEY has violated a privacy or
security standard or requirement of the HITECH Act, HIPAA or other security or privacy
laws in an administrative or civil proceeding in which the ATTORNEY is a party.
17.15 Effect of Termination
Upon termination or expiration of this Agreement for any reason, ATTORNEY
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shall return or destroy all PHI received from COUNTY (or created or received by
ATTORNEY on behalf of COUNTY) that ATTORNEY still maintains in any form, and
shall retain no copies of such PHI. If return or destruction of PHI is not feasible, it shall
continue to extend the protections of these provisions to such information, and limit
further use of such PHI to those purposes that make the return or destruction of such
PHI infeasible. This provision shall apply to PHI that is in the possession of
subcontractors or agents, if applicable, of ATTORNEY. If ATTORNEY destroys the PHI
data, a certification of date and time of destruction shall be provided to the COUNTY by
ATTORNEY.
17.16 Disclaimer
COUNTY makes no warranty or representation that compliance by ATTORNEY
with these provisions, the HITECH Act, HIPAA or the HIPAA regulations will be
adequate or satisfactory for ATTORNEY’s own purposes or that any information in
ATTORNEY’s possession or control, or transmitted or received by ATTORNEY, is or will
be secure from unauthorized access, viewing, use, disclosure, or breach. ATTORNEY
is solely responsible for all decisions made by ATTORNEY regarding the safeguarding
of PHI.
17.17 Amendment
The parties acknowledge that Federal and State laws relating to electronic data
security and privacy are rapidly evolving and that amendment of these provisions may
be required to provide for procedures to ensure compliance with such developments.
The parties specifically agree to take such action as is necessary to amend this
agreement in order to implement the standards and requirements of HIPAA, the HIPAA
regulations, the HITECH Act and other applicable laws relating to the security or privacy
of PHI. COUNTY may terminate this Agreement upon thirty (30) days written notice in
the event that ATTORNEY does not enter into an amendment providing assurances
regarding the safeguarding of PHI that COUNTY in its sole discretion, deems sufficient
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to satisfy the standards and requirements of HIPAA, the HIPAA regulations and the
HITECH Act.
17.18 No Third-Party Beneficiaries
Nothing expressed or implied in the terms and conditions of these provisions is
intended to confer, nor shall anything herein confer, upon any person other than
COUNTY or ATTORNEY and their respective successors or assignees, any rights,
remedies, obligations or liabilities whatsoever.
17.19 Interpretation
The terms and conditions in these provisions shall be interpreted as broadly as
necessary to implement and comply with HIPAA, the HIPAA regulations and applicable
State laws. The parties agree that any ambiguity in the terms and conditions of these
provisions shall be resolved in favor of a meaning that complies and is consistent with
HlPAA and the HIPAA regulations.
17.20 Regulatory References
A reference in the terms and conditions of these provisions to a section in the
HIPAA regulations means the section as in effect or as amended.
17.21 Survival
The respective rights and obligations of ATTORNEY as stated in this Section
shall survive the termination or expiration of this Agreement.
17.22 No Waiver of Obligation
No change, waiver or discharge of any liability or obligation hereunder on any
one or more occasions shall be deemed a waiver of performance of any continuing or
other obligation, or shall prohibit enforcement of any obligation on any other occasion.
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SECTION 18
GOVERNING LAW
18.1 The rights and obligations of the parties and all interpretations and
performance of this Agreement shall be governed in all respects by the laws of the State
of California.
18.2 Venue for any action arising out of or related to this Agreement shall only
be in Fresno County, California.
SECTION 19
DISCLOSURE OF SELF-DEALING TRANSACTIONS
19.1 This provision is only applicable if the ATTORNEY is operating as a
corporation (a for-profit or non-profit corporation) or if, during the term of the agreement,
the ATTORNEY changes its status to operate as a corporation.
19.2 Members of the ATTORNEY’S Board of Directors shall disclose any self-
dealing transactions that they are a party to while ATTORNEY is providing goods or
performing services under this agreement. A self-dealing transaction shall mean a
transaction to which the ATTONREY is a party and in which one or more of its directors
has a material financial interest. Members of the Board of Directors shall disclose any
self-dealing transactions that they are a party to by completing and signing a Self-
Dealing Transaction Disclosure Form, attached hereto as Attachment B and
incorporated herein by reference, and submitting it to the COUNTY prior to commencing
with the self-dealing transaction or immediately thereafter.
SECTION 20
NOTICES
20.1 The persons and their addresses having authority to give and receive
notices under this Agreement include the following:
COUNTY ATTORNEY
County of Fresno Fergusson, Praet & Sherman
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ATTN: Hollis Magill ATTN: Bruce Praet
Director of Human Resources 1631 East 18th Street
2220 Tulare Street, 16th Floor Santa Ana, CA 92705-7101
Fresno, CA 93721
20.2 All notices between the COUNTY and ATTORNEY provided for or
permitted under this Agreement must be in writing and delivered either by personal
service, by first-class United States mail, by an overnight commercial courier service, or
by telephonic facsimile transmission. A notice delivered by personal service is effective
upon service to the recipient. A notice delivered by first-class United States mail is
effective three COUNTY business days after deposit in the United States mail, postage
prepaid, addressed to the recipient. A notice delivered by an overnight commercial
courier service is effective one COUNTY business day after deposit with the overnight
commercial courier service, delivery fees prepaid, with delivery instructions given for
next day delivery, addressed to the recipient. A notice delivered by telephonic facsimile
is effective when transmission to the recipient is completed (but, if such transmission is
completed outside of COUNTY business hours, then such delivery shall be deemed to
be effective at the next beginning of a COUNTY business day), provided that the sender
maintains a machine record of the completed transmission. For all claims arising out of
or related this this Agreement, nothing in this section establishes, waives, or modifies
any claims presentation requirements or procedures provided by law, including but not
limited to the Government Claims Act (Division 3.6 of Title 1 of the Government Code,
beginning with section 810).
SECTION 21
ELECTRONIC SIGNATURE
21.1 The parties agree that this Agreement may be executed by electronic
signature as provided in this section. An “electronic signature” means any symbol or
process intended by an individual signing this Agreement to represent their signature,
including but not limited to (1) a digital signature; (2) a faxed version of an original
handwritten signature; or (3) an electronically scanned and transmitted (for example by
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PDF document) of a handwritten signature. Each electronic signature affixed or
attached to this Agreement (1) is deemed equivalent to a valid original handwritten
signature of the person signing this Agreement for all purposes, including but not limited
to evidentiary proof in any administrative or judicial proceeding, and (2) has the same
force and effect as the valid original handwritten signature of that person. The
provisions of this section satisfy the requirements of Civil Code section 1633.5,
subdivision (b), in the Uniform Electronic Transaction Act (Civil Code, Division 3, Part 2,
Title 2.5, beginning with section 1633.1). Each party using a digital signature
represents that it has undertaken and satisfied the requirements of Government Code
section 16.5, subdivision (a), paragraphs (1) through (5), and agrees that each other
party may rely upon that representation. This Agreement is not conditioned upon the
parties conducting the transactions under it by electronic means and either party may
sign this Agreement with an original handwritten signature.
SECTION 22
ENTIRE AGREEMENT
22.1 This Agreement, and any and all documents referred to or otherwise
incorporated by reference herein, constitutes the entire Agreement between COUNTY
and ATTORNEY with respect to the specialized legal services to be provided herein and
supersedes any previous Agreement concerning the subject matter hereof,
negotiations, proposals, commitments, writings, or understandings of any nature
whatsoever unless expressly included in this Agreement.
22.2 If any part of this Agreement is found violative of any law or is found to be
otherwise legally defective, ATTORNEY and COUNTY shall use their best efforts to
replace that part of this Agreement with legal terms and conditions most readily
approximating the original intent of the parties.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
2 executed as of the day and year first above written .
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ATTORNEY
~~o
(Authorized Signature)
Print Name & Title 7
/~.J/ £./IJ~ ,ff=
Mailing Address
S~ AMA (A 2fZ?D.5
City, State, ZIP 7
FOR ACCOUNTING USE ONLY :
Fund: 1060
Subclass: 10000
ORG : 89250100
Account: 7100
By:
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Steve Br ndau Cli.airman of the
Board of Supervisors of the County of
Fresno
ATTEST:
Bernice E . Seidel
Clerk of the Board of Supervisors
County of Fresno, State of California
Deputy
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ATTACHMENT A
SCHEDULE OF RATES
$235 - $250 per hour for partners
$200 - $210 per hour for associates
/// **Travel time will be limited to 4 hours each way
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ATTACHMENT B
SELF-DEALING TRANSACTION DISCLOSURE FORM
In order to conduct business with the County of Fresno (hereinafter referred to as
“County”), members of a contractor’s board of directors (hereinafter referred to as “County
Contractor”), must disclose any self-dealing transactions that they are a party to while
providing goods, performing services, or both for the County. A self-dealing transaction is
defined below:
“A self-dealing transaction means that a transaction to which the corporation is a party and
in which one or more of its directors has a material financial interest.”
The definition above will be utilized for purposes of completing this disclosure form.
Instructions
1. Enter board member’s name, job title (if applicable), and date this disclosure is
being made.
2. Enter the board member’s company/agency name and address.
3. Describe in detail the nature of the self-dealing transaction that is being disclosed
to the County. At a minimum, include a description of the following:
a. The name of the agency/company with which the corporation has a
transaction; and
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b. The nature of the material financial interest in the corporation’s transaction
that the board member has.
4. Describe in detail why the self-dealing transaction is appropriate based on
applicable provisions of the Corporations Code.
5. Form must be signed by the board member that is involved in the self-dealing
transaction described in Sections (3) and (4).
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(1) Company Board Member Information:
Name: Date: Job Title: (2) Company/Agency Name and Address:
(3) Disclosure (Please describe the nature of the self-dealing transaction you are a party to):
(4) Explain why this self-dealing transaction is consistent with the requirements of Corporations
Code 5233 (a):
(5) Authorized Signature
Signature: Date
: