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HomeMy WebLinkAboutAgreement A-21-515 with MyWorkplace Inc..pdf-1- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A G R E E M E N T THIS AGREEMENT is made and entered into effective January 1, 2022, by and between the COUNTY OF FRESNO, hereinafter referred to as “COUNTY”, and MyWorkplace, Inc., a Texas corporation, hereinafter referred to as "CONTRACTOR". WITNESSETH: WHEREAS, the COUNTY desires to obtain certain health benefit administrative services, including maintaining benefits and eligibility information, for COUNTY retirees that are 65 years of age or older (hereinafter “post-65 retirees”); and WHEREAS, the COUNTY participates in health insurance programs for its employees and pre-65 aged retirees offered through its participation in the San Joaquin Valley Insurance Authority (SJVIA); and WHEREAS, the SJVIA offers additional administrative services including consolidated eligibility and billing services through its separate agreement with CONTRACTOR; and WHEREAS, the COUNTY desires to ensure consistency and efficiency in health benefit administrative services offered through the SJVIA by matching pricing and services for its post-65 retirees; and WHEREAS, the CONTRACTOR represents that it is willing and able to provide the health benefit administrative services as set forth in this Agreement. NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions herein contained, the parties hereto agree as follows: 1.OBLIGATIONS OF THE CONTRACTOR A.The CONTRACTOR will provide benefit related management functions as outlined in Exhibit “A”, attached hereto and incorporated herein by this reference. B.The CONTRACTOR will provide the COUNTY with general administrative services that include, but are not limited to: 1)Furnishing necessary training to assist the COUNTY in utilizing the CONTRACTOR’S services. Agreement No. 21-515 -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2)Furnishing the COUNTY with all available information from the CONTRACTOR’s records which the COUNTY may need. 3)Resolving any issues raised by COUNTY with due diligence. Any questionable enrollment or service requests made by any post-65 retiree will be referred to COUNTY for clarification 2.OBLIGATIONS OF THE COUNTY A.The COUNTY is solely responsible for compliance with the Internal Revenue Code and other Federal, State or local laws. B.The COUNTY is solely responsible for the accuracy and integrity of COUNTY data. 3.TERM This Agreement shall become effective on the 1st day of January, 2022 and shall terminate on the 31st day of December, 2022. 4.TERMINATION A.Non-Allocation of Funds - The terms of this Agreement, and the services to be provided thereunder, are contingent on the approval of funds by the COUNTY. Should sufficient funds not be allocated, the services provided may be modified, or this Agreement terminated, at any time by giving the CONTRACTOR thirty (30) days advance written notice. B.Breach of Contract - The COUNTY may immediately suspend or terminate this Agreement in whole or in part, where in the determination of the COUNTY there is: 1)An illegal or improper use of funds; 2)A failure to comply with any term of this Agreement; 3)A substantially incorrect or incomplete report submitted to the COUNTY; 4)Improperly performed service. In no event shall any payment by the COUNTY constitute a waiver by the COUNTY of any breach of this Agreement or any default which may then exist on the part of the CONTRACTOR. Neither shall such payment impair or prejudice any remedy available to the -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COUNTY with respect to the breach or default. The COUNTY shall have the right to demand of the CONTRACTOR the repayment to the COUNTY of any funds disbursed to the CONTRACTOR under this Agreement, which in the judgment of the COUNTY were not expended in accordance with the terms of this Agreement. The CONTRACTOR shall promptly refund any such funds upon demand. C. Without Cause - Under circumstances other than those set forth above, this Agreement may be terminated by COUNTY upon the giving of sixty (60) days advance written notice of an intention to terminate to CONTRACTOR. 5. COMPENSATION/INVOICING: COUNTY agrees to pay CONTRACTOR and CONTRACTOR agrees to receive compensation as described in Exhibit B, attached hereto and incorporated herein by this reference. The Per Retiree Per Month (PRPM) fee described in Exhibit B will be paid monthly throughout the term of the Agreement per the compiled monthly transmittals prepared by CONTRACTOR for funding disbursement. The PRPM fees are based on the actual number of eligible retirees as determined by the COUNTY. CONTRACTOR will invoice COUNTY for services related to Affordable Care Act reporting as described in Exhibit B. 6. OWNERSHIP OF DATA: All data delivered by the COUNTY to CONTRACTOR, or which is created by either party for the COUNTY in connection with the performance of this Agreement, shall be the exclusive property of the COUNTY. CONTRACTOR shall be the custodian of such data and will immediately make such data available to the COUNTY upon request during normal working hours. CONTRACTOR shall return all personnel/payroll raw data collected or generated in connection with the performance of the Agreement within thirty (30) days of the termination of this Agreement and shall not access said data for any purpose other than in connection with the performance of this Agreement. 7. HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT A. 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), Section 56 et seq. of the -4- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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, CONTRACTOR, 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), 42 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. B.CONTRACTOR, 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. CONTRACTOR shall not use such identifying information or genetic information for any purpose other than carrying out CONTRACTOR’s obligations under this Agreement. C.CONTRACTOR, 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 -5- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 disclosing PHI that is permitted by this Agreement or authorized by law, CONTRACTOR shall make reasonable efforts to limit PHI to the minimum necessary to accomplish intended purpose of use, disclosure or request. D. 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 finger or voice print, or photograph. E. For purposes of the above sections, genetic information shall include genetic tests of family members of an individual or individual, 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. F. CONTRACTOR 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 CONTRACTOR 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. CONTRACTOR 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. CONTRACTOR shall provide to COUNTY or to an individual, in a time and manner 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. G. CONTRACTOR shall report to COUNTY, in writing, any knowledge or reasonable belief that there has been unauthorized access, viewing, use, disclosure, security -6- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. CONTRACTOR 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. CONTRACTOR 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 Dept. of Public Health Dept. of Internal Services HIPAA Representative Privacy Officer Information Security Officer (559) 600-6439 (559) 600-6405 (559) 600-5800 P.O. Box 11867 P.O. Box 11867 333 W. Pontiac Way Fresno, CA 93775 Fresno, CA 93775 Clovis, CA 93612 H.CONTRACTOR 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 CONTRACTOR 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. CONTRACTOR 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 CONTRACTOR on behalf of COUNTY, available to the United States Department of Health and Human Services (Secretary) upon demand. -7- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CONTRACTOR shall cooperate with the compliance and investigation reviews conducted by the Secretary. PHI access to the Secretary must be provided during the CONTRACTOR’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 CONTRACTOR and in possession of a Subcontractor, it must certify efforts to obtain the information to the Secretary. I. Safeguards CONTRACTOR 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. CONTRACTOR shall conduct an accurate and thorough assessment of the potential risks and vulnerabilities to the confidential, integrity and availability of electronic PHI. CONTRACTOR 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 CONTRACTOR’s operations and the nature and scope of its activities. Upon COUNTY’s request, CONTRACTOR shall provide COUNTY with information concerning such safeguards. CONTRACTOR 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 -8- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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). CONTRACTOR 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; 2.Continuously updated anti-virus software; and 3.Patch management process including installation of all operating system/software vendor security patches. CONTRACTOR 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). CONTRACTOR 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. CONTRACTOR must apply appropriate sanctions against its employees who fail to comply with these safeguards. CONTRACTOR must adopt procedures for terminating access to PHI when employment of employee ends. -9- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 J.Mitigation of Harmful Effects CONTRACTOR shall mitigate, to the extent practicable, any harmful effect that is suspected or known to CONTRACTOR of an unauthorized access, viewing, use, disclosure, or breach of PHI by CONTRACTOR or its subcontractors in violation of the requirements of these provisions. CONTRACTOR must document suspected or known harmful effects and the outcome. K.CONTRACTOR’s Subcontractors CONTRACTOR shall ensure that any of its contractors, including subcontractors, if applicable, to whom CONTRACTOR provides PHI received from or created or received by CONTRACTOR on behalf of COUNTY, agree to the same restrictions, safeguards, and conditions that apply to CONTRACTOR with respect to such PHI and to incorporate, when applicable, the relevant provisions of these provisions into each subcontract or sub-award to such agents or subcontractors. L.Employee Training and Discipline CONTRACTOR 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. M.Termination for Cause Upon COUNTY’s knowledge of a material breach of these provisions by CONTRACTOR, COUNTY shall either: 1.Provide an opportunity for CONTRACTOR to cure the breach or end the violation and terminate this Agreement if CONTRACTOR does not cure the breach or end the violation within the time specified by COUNTY; or 2.Immediately terminate this Agreement if CONTRACTOR 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 -10- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 report the violation to the Secretary of the U.S. Department of Health and Human Services. N.Judicial or Administrative Proceedings COUNTY may terminate this Agreement in accordance with the terms and conditions of this Agreement as written hereinabove, if: (1) CONTRACTOR is found guilty in a criminal proceeding for a violation of the HIPAA Privacy or Security Laws or the HITECH Act; or (2) there is a finding or stipulation that the CONTRACTOR 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 CONTRACTOR is a party. O.Effect of Termination Upon termination or expiration of this Agreement for any reason, CONTRACTOR shall return or destroy all PHI received from COUNTY (or created or received by CONTRACTOR on behalf of COUNTY) that CONTRACTOR 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 CONTRACTOR. If CONTRACTOR destroys the PHI data, a certification of date and time of destruction shall be provided to the COUNTY by CONTRACTOR. P.Disclaimer COUNTY makes no warranty or representation that compliance by CONTRACTOR with these provisions, the HITECH Act, HIPAA or the HIPAA regulations will be adequate or satisfactory for CONTRA CTOR’s own purposes or that any information in CONTRACTOR’s possession or control, or transmitted or received by CONTRACTOR, is or will be secure from unauthorized access, viewing, use, disclosure, or breach. CONTRACTOR is solely responsible for all decisions made by CONTRACTOR regarding the safeguarding of PHI. Q.Amendment The parties acknowledge that Federal and State laws relating to electronic data -11- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 CONTRACTOR does not enter into an amendment providing assurances regarding the safeguarding of PHI that COUNTY in its sole discretion, deems sufficient to satisfy the standards and requirements of HIPAA, the HIPAA regulations and the HITECH Act. R. No Third-Party Beneficiaries Nothing express 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 CONTRACTOR and their respective successors or assignees, any rights, remedies, obligations or liabilities whatsoever. S. 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. T. 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. U. Survival The respective rights and obligations of CONTRACTOR as stated in this Section shall survive the termination or expiration of this Agreement. V. No Waiver of Obligations No change, waiver or discharge of any liability or obligation hereunder on any one or -12- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. 8.INDEPENDENT CONTRACTOR: In performance of the work, duties and obligations assumed by CONTRACTOR under this Agreement, it is mutually understood and agreed that CONTRACTOR, including any and all of the CONTRACTOR'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 the COUNTY. Furthermore, COUNTY shall have no right to control or supervise or direct the manner or method by which CONTRACTOR shall perform its work and function. However, COUNTY shall retain the right to administer this Agreement so as to verify that CONTRACTOR is performing its obligations in accordance with the terms and conditions thereof. CONTRACTOR and COUNTY shall comply with all applicable provisions of law and the rules and regulations, if any, of governmental authorities having jurisdiction over matters the subject thereof. Because of its status as an independent contractor, CONTRACTOR shall have absolutely no right to employment rights and benefits available to COUNTY employees. CONTRACTOR shall be solely liable and responsible for providing to, or on behalf of, its employees all legally-required employee benefits. In addition, CONTRACTOR shall be solely responsible and save COUNTY harmless from all matters relating to payment of CONTRACTOR'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, CONTRACTOR may be providing services to others unrelated to the COUNTY or to this Agreement. 9.MODIFICATION: Any matters of this Agreement may be modified from time to time by the written consent of all the parties without, in any way, affecting the remainder. 10.NON-ASSIGNMENT: Neither party may assign, transfer or sub-contract this Agreement nor their rights or duties under this Agreement without the prior written consent of the other party. -13- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11.HOLD HARMLESS: CONTRACTOR agrees to indemnify, save, hold harmless, and at COUNTY'S 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 CONTRACTOR, 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 CONTRACTOR, its officers, agents, or employees under this Agreement. The provisions of this Section 11 shall survive termination of this Agreement. 12.INSURANCE A.Required Insurance Without limiting the COUNTY's right to obtain indemnification from CONTRACTOR or any third parties, CONTRACTOR, 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: 1.Commercial General Liability Commercial General Liability Insurance with limits of not less than Two Million Dollars ($2,000,000) per occurrence and an annual aggregate of Four Million Dollars ($4,000,000). This policy shall be issued on a per occurrence basis. COUNTY may require specific coverages including completed operations, products liability, contractual liability, Explosion-Collapse-Underground, fire legal liability or any other liability insurance deemed necessary because of the nature of this contract. 2.Professional Liability If CONTRACTOR employs licensed professional staff, (e.g., Ph.D., R.N., L.C.S.W., M.F.C.C.) in providing services, Professional Liability Insurance with limits of not less than One Million Dollars ($1,000,000.00) per occurrence, Three Million Dollars ($3,000,000.00) -14- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 annual aggregate. 3.Worker's Compensation A policy of Worker's Compensation insurance as may be required by the California Labor Code. 4.Technology Professional Liability (Errors and Omissions) Technology professional liability (errors and omissions) insurance with limits of not less than Five Million Dollars ($5,000,000.00) annual aggregate. Coverage shall encompass all of the CONTRACTOR’s duties and obligations that are the subject of this Agreement. Coverage shall include, but not be limited to, any and all claims, damages, costs, fees, regulatory fines and penalties, or forms of legal action involving Cyber Risks. 5.Cyber Liability Cyber liability insurance with limits of not less than Five Million Dollars ($5,000,000.00) annual aggregate. Coverage shall include, but not be limited to, any and all claims, damages, costs, fees, regulatory fines and penalties, or forms of legal action involving Cyber Risks. The cyber liability policy shall be endorsed to cover the full replacement value of, damage to, alteration of, loss of, theft of, ransom of, or destruction of intangible property (including but not limited to information or data) that is in the care, custody, or control of CONTRACTOR. For purposes of the technology professional liability insurance and the cyber liability insurance required under this Agreement, Cyber Risks include, but are not limited to, (i) security breaches, which include disclosure of, whether intentional or unintentional, information provided by COUNTY, information provided by or obtained from any employee, or personal-identifying information relating to any employee, to an unauthorized third party; (ii) breach of any of CONTRACTOR’s obligations under this Agreement relating to data security, protection, preservation, usage, storage, transmission, and the like; (iii) infringement of intellectual property including, but not limited to, infringement of copyright, trademark, and trade dress; (iv) invasion of privacy, including any release of private information; (v) information theft by any person or entity, whatsoever; (vi) damage to or destruction or alteration of electronic -15- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 information; (vii) extortion related to CONTRACTOR’s obligations under this Agreement regarding electronic information, including information provided by COUNTY, information provided by or obtained from any employee, or personal-identifying information relating to any employee; (viii) network security; (ix) data breach response costs, including security breach response costs; (x) regulatory fines and penalties related to CONTRACTOR’s obligations under this Agreement regarding electronic information, including information provided by COUNTY, information provided by or obtained from an employee, or personal-identifying information relating to any employee; and (xi) credit monitoring expenses. B.Additional Requirements Relating to Insurance CONTRACTOR shall obtain endorsements to the Commercial General Liability insurance naming the COUNTY, its officers, agents, and employees, 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 CONTRACTOR's policies herein. This insurance shall not be cancelled or changed without a minimum of thirty (30) days advance written notice given to COUNTY. CONTRACTOR 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. CONTRACTOR is solely responsible to obtain any endorsement to such policy that may be necessary to accomplish such waiver of subrogation, but CONTRACTOR’s waiver of subrogation under this paragraph is effective whether or not CONTRACTOR obtains such an endorsement. Within thirty (30) days from the date CONTRACTOR signs and executes this Agreement, CONTRACTOR shall provide certificates of insurance and endorsement as stated above for all of the foregoing policies, as required herein, to the COUNTY, (Paul Nerland, Director of Human Resources, 2220 Tulare Street, 16th Floor, Fresno, CA 93721), stating that such insurance coverage have been obtained and are in full force; that the COUNTY, officers, agents -16- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and employees will not be responsible for any premiums on the policies; that for such worker’s compensation insurance that CONTRACTOR 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 only and not contributing with insurance provided under CONTRACTOR'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. In the event CONTRACTOR 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. 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. 13. AUDITS AND INSPECTIONS: The CONTRACTOR shall at any time during business hours, and as often as the COUNTY may deem necessary, make available to the COUNTY for examination all of its records and data with respect to the matters covered by this Agreement. The CONTRACTOR shall, upon request by the COUNTY, permit the COUNTY to audit and inspect all of such records and data necessary to ensure CONTRACTOR'S compliance with the terms of this Agreement. If this Agreement exceeds ten thousand dollars ($10,000.00), CONTRACTOR shall be subject to the examination and audit of the Auditor General for a period of three (3) years after final payment under contract (Government Code Section 8546.7). 14. NOTICES: The persons and their addresses having authority to give and receive notices under this Agreement include the following: -17- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COUNTY CONTRACTOR Hollis Magill, Director of Human Resources 2220 Tulare Street, 16th Floor Greg Kinder, President/CEO MyWorkplace, Inc. 400 N. Loop 1604 East, Suite 110 Fresno, CA 93721 San Antonio, TX 78232 All notices between the COUNTY and CONTRACTOR 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 to 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). 15.GOVERNING LAW: Venue for any action arising out of or related to this Agreement shall only be in Fresno County, California. The rights and obligations of the parties and all interpretation and performance of this Agreement shall be governed in all respects by the laws of the State of California. 16.DISCLOSURE OF SELF-DEALING TRANSACTIONS: This provision is only applicable if the CONTRACTOR is operating as a corporation (a for-profit or non-profit -18- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 corporation) or if during the term of the agreement, the CONTRACTOR changes its status to operate as a corporation. Members of the CONTRACTOR’s Board of Directors shall disclose any self- dealing transactions that they are a party to while CONTRACTOR is providing goods or performing services under this agreement. A self-dealing transaction shall mean a transaction to which the CONTRACTOR 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 Exhibit C and incorporated herein by reference, and submitting it to the COUNTY prior to commencing with the self-dealing transaction or immediately thereafter. 17.ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the CONTRACTOR and COUNTY with respect to the subject matter hereof and supersedes all previous Agreement negotiations, proposals, commitments, writings, advertisements, publications, and understanding of any nature whatsoever unless expressly included in this Agreement. 1 IN WITNESS WHEREOF , the parties hereto have executed this Agreement as of the 2 day and year first hereinabove written . 3 CONTRACTOR 4 S By~~ 6 GregKinder President 7 : Date ¥~•?! 10 11 12 13 14 15 16 17 18 19 20 21 FOR ACCOUNTING USE ONLY : 22 Fund No: 23 Subclass : ORG No: 24 Account No : 25 26 27 28 1060 10000 89250200 7185 -19- COUNTYOFF r By __ ..,._---H------- Steve Branda Chairman of the Board of Supervisors of the County of Fresno Date : ~ 1 12..., w., \'\ ~'1\ ' ATTEST: Bernice E. Seidel Clerk of the Board of Supervisors County of Fresno , State of California -20- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT “A” CONTRACTOR will provide health benefit administrative services for COUNTY post- 65 retirees to include the following: 1. Myworkplace.net access – self service 2. System technical support to end users 3. Produce Eligibility Electronic Data Interface (EDI) files to carriers 4. Weekly COBRA data feed to Navia Benefit Solutions, Inc. (Navia) 5. EDI Monitoring and discrepancy resolution with carriers 6. Multiple eligibility/billing scheme management and closings 7. Retiree pension deduction imports and premium applications 8. Compile transmittal worksheets and accounting breakouts 9. Assist with reconciliation of member accounts and benefits that appear on accounting discrepancy reports 10. Manual PGP Encryption and SFTP of all files uploaded/downloaded 11. Full ad-hoc requests from COUNTY staff, Navia, and consultant (e.g. custom queries, etc.) 12. Import retiree pension deductions into SQL tables and perform monthly comparisons to eligibility; take query results and compile a change file for Fresno County Employee Retirement Association to send to State Street Bank for retiree deduction processing 13. Modify Myworkplace.net benefit setups at renewal to comply with changes made by COUNTY for new plan years 14. At plan year changes, complete any employee/dependent data migrations necessary within database to meet plan year changes 15. Review and break down rates provided by COUNTY consultant into component pieces necessary for completing transmittals; work with consultant to verify rate breakouts, and provide approved premiums and breakouts to COUNTY and Navia 16. Input new plan year rates into Myworkplace.net rate tables 17. Coordinate and complete programming required to support new carriers and/or benefit changes for EDI transmittals -21- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18. Provide Affordable Care Act required health insurance reporting to the IRS, by preparation and filing of 1094C/1095C forms with the IRS -22- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT “B” COUNTY will compensate CONTRACTOR for services provided as follows: 1. Compensation to CONTRACTOR for retiree eligibility services to COUNTY’s post-65 retirees shall be paid as follows: a. For post-65 retirees enrolled in the Retiree First plan a fee of $2.75 PRPM. b. For post-65 retirees enrolled in the Kaiser Medicare plans a fee of $2.75 PRPM. 2. Compensation to CONTRACTOR for preparation and filing of 1094C/1095C forms with the IRS as required under the Affordable Care Act shall be paid as follows: a. For preparation and filing of each 1094C/1095C form a fee of $3.60 per form. b. CONTRACTOR’s printing and mailing of each 1094C/1095C form will be reimbursed at CONTRACTOR’s actual cost, but in no event to exceed $1.25 per form. EXHIBIT “C” 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 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 the transaction; and 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).