HomeMy WebLinkAboutP-22-243 Litigation Engineered Agreement.pdf P-22-243
AGREEMENT FOR SPECIALIZED LEGAL SERVICES
2
3 THIS AGREEMENT is made and entered into this 14th day of June
4 2022 by and between the COUNTY OF FRESNO, a political subdivision of the State of
5 California, hereinafter referred to as "COUNTY," and Chester Walls dba Litigation
6 Engineered, a sole-proprietor, hereinafter referred to as "ATTORNEY" or "Firm".
7 COUNTY and ATTORNEY are each a "Party" to this Agreement, and are collectively
8 referred to as the "Parties" to this Agreement.
9 WITNESSETH:
10 WHEREAS, COUNTY is responsible for the administration and defense of
11 General Liability, Auto Liability, Employment Law, and Medical Malpractice claims
12 against COUNTY and its employees.
13 WHEREAS, COUNTY desires to engage appropriate legal counsel, who is skilled
14 and knowledgeable in defense of General Liability claims and litigation and other claims
15 and litigation that are covered under the County's General Liability and Medical
16 Malpractice Programs, and to advise and represent COUNTY and its employees in
17 connection with these matters, as provided herein; and
18 WHEREAS, ATTORNEY states that he is experienced, possesses expertise in
19 such matters, and is willing to perform said services,
20 NOW, THEREFORE, in consideration of the mutual covenants, terms and
21 conditions herein contained, the Parties hereto agree as follows:
22
23 SECTION 1
24 ENGAGEMENT OF ATTORNEY
25 1.1 COUNTY hereby engages ATTORNEY as an independent contractor, and
26 any associated staff attorneys and paralegals or other legal support staff as
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1 ATTORNEY deems necessary, and whom COUNTY Human Resources Department,
2 Risk Management Division, Risk Manager, or their designee, approves.
3 1.2 Each claim will be handled by the attorney in the Firm to which the
4 assignment is made (the "Assigned Attorney") unless COUNTY approves the handling
s by another attorney in the firm. Non-attorney staff employed by ATTORNEY may assist
6 the Assigned Attorney as deemed necessary by the Assigned Attorney.
7 1.3 Any additional instructions relative to the handling of a claim which are not
a specified in this Agreement will be included in the letter of engagement for each claim
9 assigned to ATTORNEY. Such instructions will be complied with by ATTORNEY as
10 well as any additional direction provided by COUNTY's Risk Manager, or their designee,
11 in the management of the claim.
12
13 SECTION 2
14 SCOPE OF SERVICES
15 2.1 ATTORNEY shall assist, advise, and represent COUNTY and its
16 employees in connection with all matters relative to the administration and defense of
17 the claims and litigation assigned to ATTORNEY by COUNTY's Risk Manager, or their
18 designee, as they specify and according to the terms set forth in this Agreement.
19 2.2 ATTORNEY shall perform such other similar legal services as requested
20 by COUNTY's Risk Manager, or their designee, in connection with the matters related to
21 the administration and defense of the assigned claims.
22
23 SECTION 3
24 PERFORMANCE BY ATTORNEY
25 3.1 ATTORNEY agrees to avoid unnecessary duplicative efforts by
26 ATTORNEY and any associated attorneys and/or staff members employed by
27 ATTORNEY in the performance of services for COUNTY hereunder.
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1 3.2 COUNTY shall not be obligated to compensate ATTORNEY for intra-office
2 conferences between or among attorneys of the Firm and/or other staff members,
3 unless such intra-office conferences promote efficiency in the performance of
4 ATTORNEY's work on a matter, or a reduction in the cost of compensation paid or
5 reimbursement made for related, actual, reasonable and necessary, out-of-pocket
6 expenses to ATTORNEY, or both.
7 3.3 In the performance of the tasks identified in Section 2 of this Agreement,
8 ATTORNEY shall provide only those services which are necessary to carry out such
9 tasks in an efficient and effective manner.
10 3.4 COUNTY must approve the retention of all experts, consultants,
11 investigators, and any other unusual expenditures.
12
13 SECTION 4
14 COMPENSATION OF ATTORNEY
15 4.1 COUNTY shall be obligated to compensate ATTORNEY pursuant to the
16 terms and conditions of this Agreement for the performance of those tasks identified in
17 Section 2 of this Agreement, to the reasonable satisfaction of the COUNTY, that take
18 place during the term of this Agreement. It is understood that COUNTY shall not be
19 obligated to compensate ATTORNEY for:
20 (a) any work, services, or functions performed by ATTORNEY that do not
21 arise directly from the performance of tasks identified in Section 2 of this Agreement;
22 and
23 (b) providing COUNTY with documentation, explanations, or justifications
24 concerning the adequacy or accuracy of ATTORNEY's invoices for the performance of
25 services under this Agreement, and resolving same to the reasonable satisfaction of
26 COUNTY.
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1 4.2 COUNTY agrees to pay, and ATTORNEY agrees to accept as full
2 compensation for performance of tasks under this Agreement ATTORNEY's reasonable
3 fees as described in Attachment A, Schedule of Rates.
4 4.3 ATTORNEY shall not be reimbursed for their secretarial, clerical, word
s processing or typist services (including overtime hours worked), that are part of their
6 normal office operating expenses, with the exception of those charges and expenses
7 stated above. In addition, ATTORNEY shall not be reimbursed for such normal office
8 operating expenses incurred, regardless of who performs such services or incurs such
9 expenses.
10 4.4 COUNTY will not reimburse ATTORNEY for any travel within the cities of
>> Fresno and Clovis.
12 4.5 Notwithstanding anything else stated to the contrary in this Agreement, in
13 no event shall the maximum amount paid by COUNTY to ATTORNEY as
14 compensation, and as reimbursement of related, actual, reasonable and necessary, out-
ts of-pocket expenses, exceed two hundred thousand dollars ($200,000.00) for the term of
16 the contract as stated in Section 6 herein, including any extensions to which the parties
17 may agree.
18
19 SECTION 5
20 PAYMENT AND RECORD-KEEPING
21 5.1 Subject to Section 4 of this Agreement, payment of compensation for the
22 services provided and reimbursement for related, actual, reasonable and necessary,
23 out-of-pocket expenses incurred which are described herein shall be made by COUNTY
24 after submission of an itemized invoice by ATTORNEY to Human Resources
25 Department, Risk Management Division. ATTORNEY shall submit such invoices no
26 later than the twentieth (20th) day of the month following the month services are
27 completed, unless the bill totals less than one hundred dollars ($100). The file will not
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1 be billed until the total reaches at least one hundred dollars ($100) or the claim is
2 closed. All payments by COUNTY will be made within forty-five (45) days after receipt,
3 verification and approval of ATTORNEY's invoices by COUNTY'S Human Resources
4 Department, Risk Management Division.
s 5.2 All such invoices shall have sufficient detail as may be required by the
6 COUNTY Auditor-Controller/Treasurer-Tax Collector, including, but not limited to:
7 5.2.1 The plaintiff's name, the date of loss, the COUNTY's claim number and
8 any other identifying information that will indicate the file to which billing is to be
9 assigned.
10 5.2.2 The specific nature of each task performed as services under this
>> Agreement;
12 5.2.3 The name of the ATTORNEY or staff member performing each task;
13 5.2.4 The number of hours worked by each such person for each such task, in
14 increments of one-tenth of an hour (0.1 hours), with no minimum greater than 0.1 hours
15 for any task;
16 5.2.5 The hourly rate per each such person performing each such task;
17 5.2.6 The related, actual, reasonable and necessary, out-of-pocket expenses
18 incurred, as provided for in Section 4 of this Agreement;
19 5.2.7 A certification by ATTORNEY that each such invoice is true and accurate
20 as to the information and specification contained therein;
21 5.3 In addition to the requirements of Section 5.2, each invoice shall set forth
22 a summary of hours worked by each ATTORNEY and staff member for the applicable
23 billing period. Each invoice shall set forth the total hours worked by each person
24 multiplied by each such person's billing rate, as set forth in Attachment A, Schedule of
25 Rates.
26 5.4 In preparing invoices, if requested by COUNTY Human Resources
27 Department, Risk Management Division, ATTORNEY shall segregate each task
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1 performed on a daily basis. If so requested by COUNTY, ATTORNEY shall not
2 combine unrelated tasks as a single entry in lieu of setting forth the hours of work
3 performed by an ATTORNEY or staff member on each specific task.
4 5.5 ATTORNEY shall prepare all invoices in an organized manner that
s facilitates an efficient review of the services performed and the expenses incurred in
6 order to provide COUNTY with a clear and complete picture of how much time was
7 devoted to specific tasks and projects, and the cost associated therewith.
8 5.6 ATTORNEY shall keep complete records of the services provided, as
9 described in this Section 5, together with all related actual, reasonable and necessary,
io 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
12 representatives, shall be given reasonable access to all of these records for the
13 purposes of audit of this Agreement. In addition, ATTORNEY shall be subject to the
14 examination and audit of such records by the State Auditor for a period of three (3)
15 years after final payment under this Agreement, pursuant to Government Code section
16 8546.7, as applicable.
17 5.7 Attorney shall provide to COUNTY a W-9, 1099 and CA Form 590 as
18 appropriate upon execution of the agreement and annually thereafter.
19
20 SECTION 6
21 TERM OF AGREEMENT
22 6.1 The term of this Agreement is effective on January 1, 2022 and terminates
23 on December 31, 2022., except as provided in this section.
24 6.2 The term of this Agreement may be extended for no more than two, one-yea
25 periods only upon written approval of both parties at least 30 days before the first day of
26 the next one-year extension period. The Director of the Human Resources Department,
27 or their designee is authorized to sign the written approval on behalf of the COUNTY
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1 based on the ATTORNEY's satisfactory performance. The extension of the term of this
2 Agreement by COUNTY is not a waiver or compromise of any default or breach of this
3 Agreement by ATTORNEY existing at the time of the extension whether or not known to
4 the COUNTY.
5 6.3 COUNTY may terminate this Agreement at any time for any reason by
6 providing written notice to ATTORNEY.
7 6.4 ATTORNEY may terminate this Agreement for material breach after giving
8 COUNTY written notice and 10 days to correct the breach. However, COUNTY's rights
9 under any pending matter which may arise from ATTORNEY's service hereunder shall
10 not be prejudiced due to such termination, as required by the Rules of Professional
11 Conduct of the State Bar of California.
12 6.5 Subject to Section 4 of this Agreement, ATTORNEY shall be paid for all
13 services performed to the reasonable satisfaction of the COUNTY, to the date of
14 termination of this Agreement.
15
16 SECTION 7
17 INDEPENDENT CONTRACTOR
18 7.1 Status. In performing under this Agreement, the ATTORNEY, including
19 its officers, agents, employees, and volunteers, is at all times acting and performing as
20 an independent contractor, in an independent capacity, and not as an officer, agent,
21 servant, employee, joint venturer, partner, or associate of the COUNTY.
22 7.2 Verifying Performance. The COUNTY has no right to control, supervise,
23 or direct the manner or method of the ATTORNEY's performance under this Agreement,
24
but the COUNTY may verify that the ATTORNEY is performing according to the terms
25
of this Agreement.
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7.3 Benefits. Because of its status as an independent contractor, the
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ATTORNEY has no right to employment rights or benefits available to County
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employees. The ATTORNEY is solely responsible for providing to its own employees all
2 employee benefits required by law. The ATTORNEY shall save the COUNTY harmless
3 from all matters relating to the payment of ATTORNEY's employees, including
4 compliance with Social Security withholding and all related regulations.
5 7.4 Services to Others. The parties acknowledge that, during the term of this
6 Agreement, the ATTORNEY may provide services to others unrelated to the COUNTY.
7
8
SECTION 8
9
INDEMNITY AND DEFENSE
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8.1 Indemnity. The ATTORNEY shall indemnify and hold harmless and defend
11
the County (including its officer, agents, employees, and volunteers) against all claims,
12
demands, injuries, damages, costs, expenses (including attorney fees and costs), fines,
13
penalties, and liabilities of any kind to the COUNTY, the ATTORNEY, or any third party
14
that arise from or relate to the performance of failure to perform by the ATTORNEY (or
15
any of his officers, agents, subcontractors, or employees) under this Agreement. The
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COUNTY may participate in its own defense without affecting the ATTORNEY's
17
obligation to indemnify and hold harmless or defend the COUNTY.
18
8.2 Survival. This Article 8 survives the termination of the Agreement.
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SECTION 9
21
INSURANCE
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23
9.1 REQUIRED POLICIES
24
Without limiting the COUNTY's right to obtain indemnification from ATTORNEY or any
25
third parties, ATTORNEY, at its sole expense, shall maintain in full force and effect, the
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following insurance policies throughout the term of the Agreement:
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(A)Commercial General Liability. Commercial general liability insurance with limits
2 of not less than Two Million Dollars ($2,000,000) per occurrence and an annual
3 aggregate of Four Million Dollars ($4,000,000). This policy must be issued on a
4 per occurrence basis. Coverage must include products, completed operations,
5
property damage, bodily injury, personal injury, and advertising injury. The
6
7 ATTORNEY shall obtain an endorsement to this policy naming the County of
8 Fresno, its officers, agents, employees, and volunteers, individually and
9 collectively, as additional insureds, but only insofar as the operations under this
10
Agreement are concerned. Such coverage for additional insureds will apply as
primary insurance and any other insurance, or self-insurance, maintained by the
12
13 County is excess only and not contributing with insurance provided under the
14 ATTORNEY's policy.
15
(B)Automobile Liability. Automobile liability insurance with limits of not less than
16
17 One Million Dollars ($1,000,000) per occurrence for bodily injury and for property
18 damages. Coverage must include any auto used in connection with this
19 Agreement.
20
21 (C)Workers Compensation. Workers compensation insurance as required by the
22 laws of the State of California with statutory limits.
23
(D)Employer's Liability. Employer's liability insurance with limits of not less than
24
25 One Million Dollars ($1,000,000) per occurrence for bodily injury and for disease.
26
(E)Professional Liability. Professional liability insurance with limits of not less than
27
One Million Dollars ($1,000,000) per occurrence and an annual aggregate of
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Three Million Dollars ($3,000,000). If this is a claims-made policy, then (1) the
2 retroactive date must be prior to the date on which services began under this
3 Agreement; (2) the ATTORNEY shall maintain the policy and provide to the
4 County annual evidence of insurance for not less than five years after completion
5
of services under this Agreement; and (3) if the policy is canceled or not
6
7 renewed, and not replaced with another claims-made policy with a retroactive
s date prior to the date on which services begin under this Agreement, then the
9 ATTORNEY shall purchase extended reporting coverage on its claims-made
10
policy for a minimum of five years after completion of services under this
11
Agreement.
12
13 9.2 ADDITIONAL REQUIREMENTS
14
15 (A)Verification of Coverage. Within 30 days after the ATTORNEY signs this
16 Agreement, and at any time during the term of this Agreement as requested by
17 the County's Risk Manager or the County Administrative Office, the ATTORNEY
1s
shall deliver, or cause its broker or producer to deliver, to the County Risk
19
Manager, at 2220 Tulare Street, 16th Floor, Fresno, California 93721, or
20
21 HRRiskManagement@fresnocountyca.gov, and by mail or email to the person
22 identified to receive notices under this Agreement, certificates of insurance and
23 endorsements for all of the coverages required under this Agreement.
24
25 (i) Each insurance certificate must state that: (1) the insurance coverage has
26 been obtained and is in full force; (2) the County, its officers, agents,
27 employees, and volunteers are not responsible for any premiums on the
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1 policy; and (3) the ATTORNEY has waived its right to recover from the
2 County, its officers, agents, employees, and volunteers any amounts paid
3 under any insurance policy required by this Agreement and that waiver
4 does not invalidate the insurance policy.
5
6 (ii) The commercial general liability insurance certificate must also state, and
7 include an endorsement, that the County of Fresno, its officers, agents,
8 employees, and volunteers, individually and collectively, are additional
9
insureds insofar as the operations under this Agreement are concerned.
10
11 The commercial general liability insurance certificate must also state that
12 the coverage shall apply as primary insurance and any other insurance, or
13 self-insurance, maintained by the County shall be excess only and not
14
contributing with insurance provided under the ATTORNEY's policy.
15
16 (iii) The automobile liability insurance certificate must state that the policy
17 covers any auto used in connection with this Agreement.
18
19 (iv) The professional liability insurance certificate, if it is a claims-made policy,
20 must also state the retroactive date of the policy, which must be prior to
21 the date on which services began under this Agreement.
22
23 (B)Acceptability of Insurers. All insurance policies required under this Agreement
24 must be issued by admitted insurers licensed to do business in the State of
25 California and possessing at all times during the term of this Agreement an A.M.
26 Best, Inc. rating of no less than A: VII.
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(C)Notice of Cancellation or Change. For each insurance policy required under
2 this Agreement, the ATTORNEY shall provide to the County, or ensure that the
3 policy requires the insurer to provide to the County, written notice of any
4 cancellation or change in the policy as required in this paragraph. For
5
cancellation of the policy for nonpayment of premium, the ATTORNEY shall, or
6
7 shall cause the insurer to, provide written notice to the County not less than 10
8 days in advance of cancellation. For cancellation of the policy for any other
9 reason, and for any other change to the policy, the ATTORNEY shall, or shall
10
cause the insurer to, provide written notice to the County not less than 30 days in
11
advance of cancellation or change. The County in its sole discretion may
12
13 determine that the failure of the ATTORNEY or its insurer to timely provide a
14 written notice required by this paragraph is a breach of this Agreement.
15
(D)County's Entitlement to Greater Coverage. If the ATTORNEY has or obtains
16
17 insurance with broader coverage, higher limits, or both, than what is required
18 under this Agreement, then the County requires and is entitled to the broader
19 coverage, higher limits, or both. To that end, the ATTORNEY shall deliver, or
20
cause its broker or producer to deliver, to the County's Risk Manager certificates
21
22
of insurance and endorsements for all of the coverages that have such broader
23 coverage, higher limits, or both, as required under this Agreement.
24
(E)Waiver of Subrogation. The ATTORNEY waives any right to recover from the
25
26 County, its officers, agents, employees, and volunteers any amounts paid under
27 the policy of worker's compensation insurance required by this Agreement. The
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ATTORNEY is solely responsible to obtain any policy endorsement that may be
2 necessary to accomplish that waiver, but the ATTORNEY's waiver of subrogation
3 under this paragraph is effective whether or not the ATTORNEY obtains such an
4 endorsement.
5
6 (F) County's Remedy for ATTORNEY's Failure to Maintain. If the ATTORNEY
7 fails to keep in effect at all times any insurance coverage required under this
8 Agreement, the County may, in addition to any other remedies it may have,
9
suspend or terminate this Agreement upon the occurrence of that failure, or
10
11 purchase such insurance coverage, and charge the cost of that coverage to the
12 ATTORNEY. The County may offset such charges against any amounts owed by
13 the County to the ATTORNEY under this Agreement.
14
15 (G)Subcontractors. The ATTORNEY shall require and verify that all
16 subcontractors used by the ATTORNEY to provide services under this
17 Agreement maintain insurance meeting all insurance requirements provided in
la
this Agreement. This paragraph does not authorize the ATTORNEY to provide
19
services under this Agreement using subcontractors.
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SECTION 10
23
AGREEMENT BINDING ON SUCCESSORS
24
10.1 This Agreement shall be binding upon COUNTY and ATTORNEY and its
25
successors, executors, administrators, legal representatives, and assigns with respect
26
to all the covenants and conditions set forth herein.
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1 SECTION 11
2 ASSIGNMENT AND SUBCONTRACTING
3 11.1 Neither party hereto shall assign, transfer, or sub-contract neither this
4 Agreement nor its rights nor duties hereunder without the written consent of the other.
s
6 SECTION 12
7 AMENDMENTS
8 12.1 This Agreement may be amended only in writing signed by the Parties
9 hereto.
10
11 SECTION 13
12 CONFLICT OF INTEREST
13 13.1 ATTORNEY promises, covenants, and warrants that the performance of
14 its services and representation of COUNTY under this Agreement do not result in a
15 "conflict of interest" as that term is used in the Rules of Professional Conduct of the
16 State Bar of California. In the event a "conflict of interest" occurs, ATTORNEY will
17 request that COUNTY waive such "conflict of interest" on a case-by-case basis. If the
18 COUNTY does not waive the conflict, ATTORNEY must resolve the conflicting issue in
i9 the favor of COUNTY.
20
21 SECTION 14
22 FURTHER ASSURANCES BY ATTORNEY
23 14.1 ATTORNEY represents that it has read and is familiar with Government
24 Code Section 1090 et seq. and Section 87100 et seq. ATTORNEY promises,
25 covenants, and warrants that the performance of its services under this Agreement shall
26 not result in or cause a violation of Government Code Section 1090 et seq. and Section
27 87100 et seq.
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2 SECTION 15
3 COMPLIANCE WITH LAWS
4 15.1 ATTORNEY shall comply with all federal, state, and local laws and
5 regulations applicable to the performance of its obligations under this Agreement and
6 maintain all licenses as required in the performance of its duties.
8 SECTION 16
9 HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT
10 16.1 The parties to this Agreement shall be in strict conformance with all
11 applicable Federal and State of California laws and regulations, including, but not
12 limited to Sections 5328, 10850, and 14100.2 et seq. of the Welfare and Institutions
13 Code, Sections 2.1 and 431 .300 et seq. of Title 42, Code of Federal Regulations (CFR),
14 Section 56 et seq. of the California Civil Code, Sections 11977 and 11812 of Title 22 of
15 the California Code of Regulations, and the Health Insurance Portability and
16 Accountability Act (HIPAA), including but not limited to Section 1320 D et seq. of Title
17 42, United States Code (USC) and its implementing regulations, including, but not
18 limited to, Title 45, CFR, Sections 142, 160, 162, and 164, The Health Information
19 Technology for Economic and Clinical Health Act (HITECH) regarding the confidentiality
20 and security of patient information, and the Genetic Information Nondiscrimination Act
21 (GINA) of 2008 regarding the confidentiality of genetic information.
22 Except as otherwise provided in this Agreement, ATTORNEY, as a Business
23 Associate of COUNTY, may use or disclose Protected Health Information (PHI) to
24 perform functions, activities or services for or on behalf of COUNTY, as specified in this
25 Agreement, provided that such use or disclosure shall not violate the Health Insurance
26 Portability and Accountability Act (HIPAA), USC 1320d et seq. The uses and
27 disclosures of PHI may not be more expansive than those applicable to COUNTY, as
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i the "Covered Entity" under the HIPAA Privacy Rule (45 CFR 164.500 et seq.), except as
2 authorized for management, administrative or legal responsibilities of the Business
3 Associate.
4 16.2 ATTORNEY, including its subcontractors and employees, shall protect
s from unauthorized access, use, or disclosure of names and other identifying
6 information, including genetic information, concerning persons receiving services
7 pursuant to this Agreement, except where permitted in order to carry out data
s aggregation purposes for health care operations [45 CFR Sections 164.504 (e)(2)(i),
9 164.504 (3)(2)(ii)(A), and 164.504 (e)(4)(i)]. This pertains to any and all persons
io receiving services pursuant to a COUNTY funded program. This requirement applies to
ii electronic PHI. ATTORNEY shall not use such identifying information or genetic
12 information for any purpose other than carrying out ATTORNEY's obligations under this
13 Agreement.
14 16.3 ATTORNEY, including its subcontractors and employees, shall not
15 disclose any such identifying information or genetic information to any person or entity,
16 except as otherwise specifically permitted by this Agreement, authorized by Subpart E
17 of 45 CFR Part 164 or other law, required by the Secretary, or authorized by the
18 client/patient in writing. In using or disclosing PHI that is permitted by this Agreement or
i9 authorized by law, ATTORNEY shall make reasonable efforts to limit PHI to the
20 minimum necessary to accomplish intended purpose of use, disclosure or request.
21 16.4 For purposes of the above sections, identifying information shall include,
22 but not be limited to, name, identifying number, symbol, or other identifying particular
23 assigned to the individual, such as fingerprint or voiceprint, or photograph.
24 16.5 For purposes of the above sections, genetic information shall include
25 genetic tests of family members of an individual or individual(s), manifestation of
26 disease or disorder of family members of an individual, or any request for or receipt of
27 genetic services by individual or family members. Family member means a dependent
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i or any person who is first, second, third, or fourth degree relative.
2 16.6 ATTORNEY shall provide access, at the request of COUNTY, and in the
3 time and manner designated by COUNTY, to PHI in a designated record set (as defined
4 in 45 CFR Section 164.501), to an individual or to COUNTY in order to meet the
s requirements of 45 CFR Section 164.524 regarding access by individuals to their PHI.
6 With respect to individual requests, access shall be provided within thirty (30) days from
7 request. Access may be extended if ATTORNEY cannot provide access and provides
8 the individual with the reasons for the delay and the date when access may be granted.
9 PHI shall be provided in the form and format requested by the individual or COUNTY.
10 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
12 COUNTY in accordance with 45 CFR Section 164.526.
13 ATTORNEY shall provide to COUNTY or to an individual, in a time and manner
14 designated by COUNTY, information collected in accordance with 45 CFR Section
15 164.528, to permit COUNTY to respond to a request by the individual for an accounting
16 of disclosures of PHI in accordance with 45 CFR Section 164.528.
17 16.7 ATTORNEY shall report to COUNTY, in writing, any knowledge or
is reasonable belief that there has been unauthorized access, viewing, use, disclosure,
i9 security incident, or breach of unsecured PHI not permitted by this Agreement of which
20 it becomes aware, immediately and without reasonable delay and in no case later than
21 two (2) business days of discovery. Immediate notification shall be made to COUNTY's
22 Information Security Officer and Privacy Officer and COUNTY's DPH HIPAA
23 Representative, within two (2) business days of discovery. The notification shall
24 include, to the extent possible, the identification of each individual whose unsecured
25 PHI has been, or is reasonably believed to have been, accessed, acquired, used,
26 disclosed, or breached. ATTORNEY shall take prompt corrective action to cure any
27 deficiencies and any action pertaining to such unauthorized disclosure required by
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1 applicable Federal and State laws and regulations. ATTORNEY shall investigate such
2 breach and is responsible for all notifications required by law and regulation or deemed
3 necessary by COUNTY and shall provide a written report of the investigation and
4 reporting required to COUNTY's Information Security Officer and Privacy Officer and
5 COUNTY's DPH HIPAA Representative.
6 This written investigation and description of any reporting necessary shall be
7 postmarked within the thirty (30) working days of the discovery of the breach to the
8 addresses below:
9
County of Fresno County of Fresno County of Fresno
10 Dept. of Public Health Svcs. Dept. of Public Health Information Technology
11 HIPAA Representative Privacy Officer Information Security Officer
(559) 600-6439 (559) 600-6405 (559) 600-5800
12 P.O. Box 11867 P.O. Box 11867 2048 N. Fine Street
13 Fresno, CA 93775 Fresno, CA 93775 Fresno, CA 93727
14
15 16.8 ATTORNEY shall make its internal practices, books, and records relating
16 to the use and disclosure of PHI received from COUNTY, or created or received by the
17
ATTORNEY on behalf of COUNTY, in compliance with HIPAA's Privacy Rule, including,
18
but not limited to, the requirements set forth in Title 45, CFR, Sections 160 and 164.
19 ATTORNEY shall make its internal practices, books, and records relating to the use and
zo
disclosure of PHI received from COUNTY, or created or received by the ATTORNEY on
21 behalf of COUNTY, available to the United States Department of Health and Human
22
Services (Secretary) upon demand.
23 ATTORNEY shall cooperate with the compliance and investigation reviews
24 conducted by the Secretary. PHI access to the Secretary must be provided during the
25 ATTORNEY's normal business hours; however, upon exigent circumstances access at
26 any time must be granted. Upon the Secretary's compliance or investigation review, if
27 PHI is unavailable to ATTORNEY and in possession of a Subcontractor, it must certify
efforts to obtain the information to the Secretary.
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1 16.9 Safeguards
2 ATTORNEY shall implement administrative, physical, and technical safeguards
3 as required by the HIPAA Security Rule, Subpart C of 45 CFR 164, that reasonably and
4 appropriately protect the confidentiality, integrity, and availability of PHI, including
5 electronic PHI, that it creates, receives, maintains or transmits on behalf of COUNTY
6 and to prevent unauthorized access, viewing, use, disclosure, or breach of PHI other
7 than as provided for by this Agreement. ATTORNEY shall conduct an accurate and
8 thorough assessment of the potential risks and vulnerabilities to the confidentiality,
9 integrity and availability of electronic PHI. ATTORNEY shall develop and maintain a
10 written information privacy and security program that includes administrative, technical
11 and physical safeguards appropriate to the size and complexity of ATTORNEY's
12 operations and the nature and scope of its activities. Upon COUNTY's request,
13 ATTORNEY shall provide COUNTY with information concerning such safeguards.
14 ATTORNEY shall implement strong access controls and other security
15 safeguards and precautions in order to restrict logical and physical access to
16 confidential, personal (e.g., PHI) or sensitive data to authorized users only. Said
17 safeguards and precautions shall include the following administrative and technical
18 password controls for all systems used to process or store confidential, personal, or
19 sensitive data:
20 1. Passwords must not be:
21 a. Shared or written down where they are accessible or
22 recognizable by anyone else; such as taped to computer screens, stored under
23 keyboards, or visible in a work area;
24 b. A dictionary word; or
25 C. Stored in clear text
26 2. Passwords must be:
27 a. Eight (8) characters or more in length;
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1 b. Changed every ninety (90) days;
2 C. Changed immediately if revealed or compromised; and
3 d. Composed of characters from at least three (3) of the
4 following four (4) groups from the standard keyboard:
s 1) Upper case letters (A-Z);
6 2) Lowercase letters (a-z);
7 3) Arabic numerals (0 through 9); and
a 4) Non-alphanumeric characters (punctuation
9 symbols).
10 ATTORNEY shall implement the following security controls on each workstation
>> or portable computing device (e.g., laptop computer) containing confidential, personal,
12 or sensitive data:
13 1. Network-based firewall and/or personal firewall;
14 2. Continuously updated anti-virus software; and
15 3. Patch management process including installation of all operating
16 system/software vendor security patches.
17 ATTORNEY shall utilize a commercial encryption solution that has received FIPS
18 140-2 validation to encrypt all confidential, personal, or sensitive data stored on portable
i9 electronic media (including, but not limited to, compact disks and thumb drives) and on
20 portable computing devices (including, but not limited to, laptop and notebook
21 computers).
22 ATTORNEY shall not transmit confidential, personal, or sensitive data via e-mail
23 or other internet transport protocol unless the data is encrypted by a solution that has
24 been validated by the National Institute of Standards and Technology (NIST) as
25 conforming to the Advanced Encryption Standard (AES) Algorithm. ATTORNEY must
26 apply appropriate sanctions against its employees who fail to comply with these
27 safeguards. ATTORNEY must adopt procedures for terminating access to PHI when
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1 employment of employee ends.
2 16.10 Mitigation of Harmful Effects
3 ATTORNEY shall mitigate, to the extent practicable, any harmful effect that is
4 suspected or known to ATTORNEY of an unauthorized access, viewing, use,
s disclosure, or breach of PHI by ATTORNEY or its subcontractors in violation of the
6 requirements of these provisions. ATTORNEY must document suspected or known
7 harmful effects and the outcome.
8 16.11 ATTORNEY's Subcontractors
9 ATTORNEY shall ensure that any of its contractors, including subcontractors, if
10 applicable, to whom ATTORNEY provides PHI received from or created or received by
11 ATTORNEY on behalf of COUNTY, agree to the same restrictions, safeguards, and
12 conditions that apply to ATTORNEY with respect to such PHI and to incorporate, when
13 applicable, the relevant provisions of these provisions into each subcontract or sub-
14 award to such agents or subcontractors.
15 16.12 Employee Training and Discipline
16 ATTORNEY shall train and use reasonable measures to ensure compliance with
17 the requirements of these provisions by employees who assist in the performance of
18 functions or activities on behalf of COUNTY under this Agreement and use or disclose
19 PHI, and discipline such employees who intentionally violate any provisions of these
20 provisions, including termination of employment.
21 16.13 Termination for Cause
22 Upon COUNTY's knowledge of a material breach of these provisions by
23 ATTORNEY, COUNTY shall either:
24 1. Provide an opportunity for ATTORNEY to cure the breach or end
25 the violation and terminate this Agreement if ATTORNEY does not cure the breach or
26 end the violation within the time specified by COUNTY; or
27 2. Immediately terminate this Agreement if ATTORNEY has breached
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i a material term of these provisions and cure is not possible.
2 3. If neither cure nor termination is feasible, the COUNTY's Privacy
3 Officer shall report the violation to the Secretary of the U.S. Department of Health and
4 Human Services.
s 16.14 Judicial or Administrative Proceedings
6 COUNTY may terminate this Agreement in accordance with the terms and
7 conditions of this Agreement as written hereinabove, if: (1) ATTORNEY is found guilty
8 in a criminal proceeding for a violation of the HIPAA Privacy or Security Laws or the
9 HITECH Act; or (2) a finding or stipulation that the ATTORNEY has violated a privacy or
io 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.
12 16.15 Effect of Termination
13 Upon termination or expiration of this Agreement for any reason, ATTORNEY
14 shall return or destroy all PHI received from COUNTY (or created or received by
15 ATTORNEY on behalf of COUNTY) that ATTORNEY still maintains in any form, and
16 shall retain no copies of such PHI. If return or destruction of PHI is not feasible, it shall
17 continue to extend the protections of these provisions to such information, and limit
la further use of such PHI to those purposes that make the return or destruction of such
i9 PHI infeasible. This provision shall apply to PHI that is in the possession of
20 subcontractors or agents, if applicable, of ATTORNEY. If ATTORNEY destroys the PHI
21 data, a certification of date and time of destruction shall be provided to the COUNTY by
22 ATTORNEY.
23 16.16 Disclaimer
24 COUNTY makes no warranty or representation that compliance by ATTORNEY
25 with these provisions, the HITECH Act, HIPAA or the HIPAA regulations will be
26 adequate or satisfactory for ATTORNEY's own purposes or that any information in
27 ATTORNEY's possession or control, or transmitted or received by ATTORNEY, is or will
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i be secure from unauthorized access, viewing, use, disclosure, or breach. ATTORNEY
2 is solely responsible for all decisions made by ATTORNEY regarding the safeguarding
3 of PHI.
4 16.17 Amendment
s The parties acknowledge that Federal and State laws relating to electronic data
6 security and privacy are rapidly evolving and that amendment of these provisions may
7 be required to provide for procedures to ensure compliance with such developments.
a The parties specifically agree to take such action as is necessary to amend this
9 agreement in order to implement the standards and requirements of HIPAA, the HIPAA
io 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
12 the event that ATTORNEY does not enter into an amendment providing assurances
13 regarding the safeguarding of PHI that COUNTY in its sole discretion, deems sufficient
14 to satisfy the standards and requirements of HIPAA, the HIPAA regulations and the
15 HITECH Act.
16 16.18 No Third-Party Beneficiaries
17 Nothing expressed or implied in the terms and conditions of these provisions is
la intended to confer, nor shall anything herein confer, upon any person other than
i9 COUNTY or ATTORNEY and their respective successors or assignees, any rights,
20 remedies, obligations or liabilities whatsoever.
21 16.19 Interpretation
22 The terms and conditions in these provisions shall be interpreted as broadly as
23 necessary to implement and comply with HIPAA, the HIPAA regulations and applicable
24 State laws. The parties agree that any ambiguity in the terms and conditions of these
25 provisions shall be resolved in favor of a meaning that complies and is consistent with
26 HIPAA and the HIPAA regulations.
27 16.20 Regulatory References
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1 A reference in the terms and conditions of these provisions to a section in the
2 HIPAA regulations means the section as in effect or as amended.
3 16.21 Survival
4 The respective rights and obligations of ATTORNEY as stated in this Section
s shall survive the termination or expiration of this Agreement.
6 16.22 No Waiver of Obligation
7 No change, waiver or discharge of any liability or obligation hereunder on any
a one or more occasions shall be deemed a waiver of performance of any continuing or
9 other obligation, or shall prohibit enforcement of any obligation on any other occasion.
10
11 SECTION 17
12 GOVERNING LAW, JURISDICTION, AND VENUE
13 17.1 The laws of the State of California govern all matters arising from or
14 related to this Agreement.
15 17.2 This Agreement is signed and performed in Fresno County, California.
16 ATTORNEY consents to California jurisdiction for actions arising from or related to this
17 Agreement, and, subject to the Government Claims Act, all such actions must be
18 brought and maintained in Fresno County.
19
20 SECTION 18
21 DISCLOSURE OF SELF-DEALING TRANSACTIONS
22 18.1 This provision is only applicable if the ATTORNEY is operating as a
23 corporation (a for-profit or non-profit corporation) or if, during the term of the agreement,
24 the ATTORNEY changes its status to operate as a corporation.
25 18.2 Members of the ATTORNEY'S Board of Directors shall disclose any self-
26 dealing transactions that they are a party to while ATTORNEY is providing goods or
27 performing services under this agreement. A self-dealing transaction shall mean a
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t transaction to which the ATTONREY is a party and in which one or more of its directors
2 has a material financial interest. Members of the Board of Directors shall disclose any
3 self-dealing transactions that they are a party to by completing and signing a Self-
4 Dealing Transaction Disclosure Form, attached hereto as Attachment B and
5 incorporated herein by reference, and submitting it to the COUNTY prior to commencing
6 with the self-dealing transaction or immediately thereafter.
7
8 SECTION 19
9 NOTICES
10
19.1 Contact Information. The persons and their addresses having authority
11 to give and receive notices provided for or permitted under this Agreement include the
12 following:
13
For the County:
14 Hollis Magill, Director of Human Resources
County of Fresno
15 2220 Tulare Street, 16t" Floor
Fresno, CA 93721
16
17 For the ATTORNEY:
18 Litigation Engineered
Chester Walls
19 1300 East Shaw Avenue, Suite 125
Fresno, CA 93710
20
21 19.2 Change of Contact Information. Either party may change the information
22 in section 5.1 by giving notice as provided in section 5.3.
23 19.3 Method of Delivery. Each notice between the County and the
24
ATTORNEY provided for or permitted under this Agreement must be in writing, state
25
that it is a notice provided under this Agreement, and be delivered either by personal
26
service, by first-class United States mail, by an overnight commercial courier service, by
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1 telephonic facsimile transmission, or by Portable Document Format (PDF) document
2 attached to an email.
3 (A) A notice delivered by personal service is effective upon service to the
4 recipient.
5 (B) A notice delivered by first-class United States mail is effective three
6 County business days after deposit in the United States mail, postage
7 prepaid, addressed to the recipient.
8 (C)A notice delivered by an overnight commercial courier service is effective
9
one County business day after deposit with the overnight commercial
10
courier service, delivery fees prepaid, with delivery instructions given for
11
next day delivery, addressed to the recipient.
12
13 (D)A notice delivered by telephonic facsimile transmission or by PDF
14 document attached to an email is effective when transmission to the
15 recipient is completed (but, if such transmission is completed outside of
16 County business hours, then such delivery is deemed to be effective at the
17 next beginning of a County business day), provided that the sender
18 maintains a machine record of the completed transmission.
19 19.4 Claims Presentation. For all claims arising from or related to this
20 Agreement, nothing in this Agreement establishes, waives, or modifies any claims
21
presentation requirements or procedures provided by law, including the Government
22
Claims Act (Division 3.6 of Title 1 of the Government Code, beginning with section 810).
23
24 SECTION 20
25 ELECTRONIC SIGNATURE
26 20.1 The parties agree that this Agreement may be executed by electronic
27 signature as provided in this section. An "electronic signature" means any symbol or
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i process intended by an individual signing this Agreement to represent their signature,
2 including but not limited to (1) a digital signature; (2) a faxed version of an original
3 handwritten signature; or (3) an electronically scanned and transmitted (for example by
4 PDF document) of a handwritten signature. Each electronic signature affixed or
s attached to this Agreement (1) is deemed equivalent to a valid original handwritten
6 signature of the person signing this Agreement for all purposes, including but not limited
7 to evidentiary proof in any administrative or judicial proceeding, and (2) has the same
8 force and effect as the valid original handwritten signature of that person. The
9 provisions of this section satisfy the requirements of Civil Code section 1633.5,
io 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
12 represents that it has undertaken and satisfied the requirements of Government Code
13 section 16.5, subdivision (a), paragraphs (1) through (5), and agrees that each other
14 party may rely upon that representation. This Agreement is not conditioned upon the
15 parties conducting the transactions under it by electronic means and either party may
16 sign this Agreement with an original handwritten signature.
17
la SECTION 21
19 ENTIRE AGREEMENT
20 21.1 This Agreement, and any and all documents referred to or otherwise
21 incorporated by reference herein, constitutes the entire Agreement between COUNTY
22 and ATTORNEY with respect to the specialized legal services to be provided herein and
23 supersedes any previous Agreement concerning the subject matter hereof,
24 negotiations, proposals, commitments, writings, or understandings of any nature
25 whatsoever unless expressly included in this Agreement.
26 21.2 If any part of this Agreement is found violative of any law or is found to be
27 otherwise legally defective, ATTORNEY and COUNTY shall use their best efforts to
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1 replace that part of this Agreement with legal terms and conditions most readily
2 approximating the original intent of the parties.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
2 executed as of the day and year first above written.
3
ATTORNEY COUNTY OF FRESNO
4u4z� Digitally signed by Gary Comuelle
Gary CO rn u e I I e Date:2022.06.14 14:47:00-07'00'
5 (Authorized Signature) Gary Comuelle
6 Purchasing Manager
Chester E. Walls, sole proprietor
7 Print Name & Title
8 1300 E. Shaw Ave., Suite 125
Mailing Address
9 Fresno, CA 93710
City, State, ZIP
10
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12
13
14
15
16
17
18 FOR ACCOUNTING USE ONLY:
19 Fund: 1060
20 Subclass: 10000
21 ORG: 89250100
22 Account: 7100
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ATTACHMENT A
2 Compensation
3
4 County shall compensate Attorney as follows:
5 Attorney: $215 per hour
Paralegal: $125 per hour
6 Law Clerk: $125 per hour
7
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ATTACHMENT B
2 SELF-DEALING TRANSACTION DISCLOSURE FORM
3
4 In order to conduct business with the County of Fresno (hereinafter referred to as
5 "County"), members of a contractor's board of directors (hereinafter referred to as "County
6 Contractor"), must disclose any self-dealing transactions that they are a party to while
7 providing goods, performing services, or both for the County. A self-dealing transaction is
8
defined below:
9
10
i i "A self-dealing transaction means that a transaction to which the corporation is a party and
12 in which one or more of its directors has a material financial interest."
13
14
The definition above will be utilized for purposes of completing this disclosure form.
15
16
17 Instructions
18 1. Enter board member's name, job title (if applicable), and date this disclosure is
19
being made.
20
21 2. Enter the board member's company/agency name and address.
22 3. Describe in detail the nature of the self-dealing transaction that is being disclosed
23 to the County. At a minimum, include a description of the following:
24 a. The name of the agency/company with which the corporation has a
25
transaction; and
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1 b. The nature of the material financial interest in the corporation's transaction
2 that the board member has.
3 4. Describe in detail why the self-dealing transaction is appropriate based on
4 applicable provisions of the Corporations Code.
5
5. Form must be signed by the board member that is involved in the self-dealing
6
7 transaction described in Sections (3) and (4).
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1 (1)Company Board Member Information:
Name: Date:
2 Job Title:
3 (2)Company/Agency Name and Address:
4
5
6
7
8 (3)Disclosure(Please describe the nature of the self-dealing transaction you are a party to):
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(4)Explain why this self-dealing transaction is consistent with the requirements of Corporations
19 Code 5233(a):
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(5)Authorized Si nature
26 Signature: Date
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