HomeMy WebLinkAboutAgreement A-22-573 with Pinnacle Training Systems LLC.pdf Agreement No. 22-573
1 SERVICE AGREEMENT
2 This Service Agreement ("Agreement") is dated 13t" day of December, 2022, and is
3 between the PINNACLE TRAINING SYSTEMS, LLC, a California Limited Liability Corporation,
4 whose address is 6011 N. Fresno Ave, Suite 120, Fresno, CA 93721, ("Contractor"), and the
5 COUNTY OF FRESNO, a political subdivision of the State of California ("County").
6 Recitals
7 A. The County and Contractor entered into services agreement No. A-21-025, effective
8 July 9, 2020, under which Contractor agreed to provide COVID-19 onsite testing services to
9 County employees for a two year term. County Agreement No. A-21-025 incorporated the
10 terms of County Agreement No. A-20-295, as amended by County Agreement No. A-20-295-1 ,
11 which related to these same COVID-19 testing services (collectively referred to as "County
12 Agreement A-21-025").
13 B. On May 25, 2021, County Agreement A-21-025 was amended to (1) extend the term of
14 the previous Agreement for an additional six months to December 31, 2021 (2) adjust the
15 populations to be tested and (3) increased the compensation maximum by $1,083,400 to a total
16 not to exceed $3,749,000.
17 C. County Agreement A-21-025 was amended again on September 7, 2021, to (1) extend
18 the term of the Agreement for an additional six months to June 30, 2022, (2) adjust the
19 populations to be tested (3) adjust the types of testing offered within the scope of work, and (4)
20 increase the compensation maximum by $6,131,00 to a total not to exceed $9,880,900.
21 D. County Agreement A-21-025 was amended a third time on June 21, 2022, to extend the
22 term of the Agreement for an additional 6 months to December 31, 2022.
23 E. The County is currently required to provide COVID-19 testing on a weekly basis, per 8
24 CCR Section 3205 et. seq.
25 F. The volume and response times for testing for COVID-19 has shifted dramatically
26 throughout the pandemic and has required rapid results to be provided with often less than 24
27 hours' notice.
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1 G. Contractor has regularly provided service at hours beyond normal business hours for the
2 County and has consistently met the County's needs of around the clock availability and quality
3 performance.
4 H. County and Contractor desire to continue the services on substantially the same terms
5 and conditions for a renewed period of 3 years, with the option to extend the contract for one (1)
6 year.
7 The parties therefore agree as follows:
8 Article 1
9 Contractor's Services
10 1.1 Scope of Services. The Contractor shall perform all of the services provided in
11 Exhibit A to this Agreement, titled "Scope of Services."
12 1.2 Representation. The Contractor represents that it is qualified, ready, willing, and
13 able to perform all of the services provided in this Agreement.
14 1.3 Health Insurance Portability and Accountability Act (HIPAA). Contractor shall
15 comply with all provisions of exhibit E to this Agreement, titled "Health Insurance Portability and
16 Accountability Act (HIPAA)."
17 1.4 Compliance with Laws. The Contractor shall, at its own cost, comply with all
18 applicable federal, state, and local laws and regulations in the performance of its obligations
19 under this Agreement, including but not limited to workers compensation, labor, and
20 confidentiality laws and regulations.
21 1.5 No right to control or exclusively possess County Facilities. This Agreement
22 does not grant the Contractor any right to control or exclusively possess all or any portion of any
23 County facility where Contractor is providing services under this Agreement. Authorized County
24 staff may, at any time, enter any County facilities where Contractor is providing services under
25 this Agreement.
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1 Article 2
2 Compensation, Invoices, and Payments
3 2.1 The County agrees to pay, and the Contractor agrees to receive, compensation for
4 the performance of its services under this Agreement as described in Exhibit B to this
5 Agreement, titled "Compensation."
6 2.2 Maximum Compensation. The maximum compensation payable to the Contractor
7 under this Agreement is $9,000,000, at an estimated rate of$2,500,000 per year in 2023 and
8 2024, and at an estimated rate of$2,000,000 per year for the further remaining year and
9 optional 1 year renewal. Due to the demands and surges of COVID-19, the Director of Human
10 Resources shall have the authority to approve increases or decreases, in writing, of the yearly
11 expenditure, except that the total paid may not exceed $9,000,000 for the term of the
12 agreement. The Contractor acknowledges that the County is a local government entity and does
13 so with notice that the County's powers are limited by the California Constitution and by State
14 law, and with notice that the Contractor may receive compensation under this Agreement only
15 for services performed according to the terms of this Agreement and while this Agreement is in
16 effect, and subject to the maximum amount payable under this section. The Contractor further
17 acknowledges that County employees have no authority to pay the Contractor except as
18 expressly provided in this Agreement.
19 2.3 Invoices. The Contractor shall submit monthly invoices to: ATTN: Risk Management,
20 County of Fresno Department of Human Resources — Business Office, 2220 Tulare St., 16t"
21 Floor, Fresno, CA, 93721, or electronically at: hrriskmanagement@fresnocountyca.gov. The
22 Contractor shall submit each invoice within 5 days after the month in which the Contractor
23 performs services.
24 2.4 Payment. The County shall pay each correctly completed and timely submitted
25 invoice within 45 days after receipt. The County shall remit any payment to the Contractor's
26 address specified in the invoice.
27 2.5 Incidental Expenses. The Contractor is solely responsible for all of its costs and
28 expenses that are not specified as payable by the County under this Agreement.
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1 Article 3
2 Term of Agreement
3 3.1 Term. This Agreement is effective January 1st, 2023, and terminates on December
4 31 st, 2025, except as provided in section 3.2, "Extension," or Article 5, "Termination and
5 Suspension," below.
6 3.2 Extension. The term of this Agreement may be extended for no more than one, one-
7 year period, only upon written approval of both parties at least 30 days before the first day of the
8 next one-year extension period. The Director of Human Resources for the County of Fresno, or
9 his or her designee, is authorized to sign the written approval on behalf of the County based on
10 the Contractor's satisfactory performance. The extension of this Agreement by the County is not
11 a waiver or compromise of any default or breach of this Agreement by the Contractor existing at
12 the time of the extension whether or not known to the County.
13 Article 4
14 Notices
15 4.1 Contact Information. The persons and their addresses having authority to give and
16 receive notices provided for or permitted under this Agreement include the following:
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For the County:
18 Risk Manager
County of Fresno
19 2220 Tulare St., 161" Floor
Fresno, CA, 93721
20 hrriskmanagement@fresnocountyca.gov
21 For the Contractor:
Owner— Felicia Gomez
22 Pinnacle Training Systems, LLC.
6011 N. Fresno Street, Suite 120
23 Fresno, CA, 93721
fgomez@pinnacletrainingsystems.com
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25 4.2 Change of Contact Information. Either party may change the information in section
26 5.1 by giving notice as provided in section 5.3.
27 4.3 Method of Delivery. Each notice between the County and the Contractor provided
28 for or permitted under this Agreement must be in writing, state that it is a notice provided under
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1 this Agreement, and be delivered either by personal service, by first-class United States mail, by
2 an overnight commercial courier service, by telephonic facsimile transmission, or by Portable
3 Document Format (PDF) document attached to an email, or by email from an authorized email
4 account.
5 (A) A notice delivered by personal service is effective upon service to the recipient.
6 (B) A notice delivered by first-class United States mail is effective three County
7 business days after deposit in the United States mail, postage prepaid, addressed to the
8 recipient.
9 (C)A notice delivered by an overnight commercial courier service is effective one
10 County business day after deposit with the overnight commercial courier service,
11 delivery fees prepaid, with delivery instructions given for next day delivery, addressed to
12 the recipient.
13 (D)A notice delivered by telephonic facsimile transmission or by PDF document
14 attached to an email, or authorized email account, is effective when transmission to the
15 recipient is completed (but, if such transmission is completed outside of County business
16 hours, then such delivery is deemed to be effective at the next beginning of a County
17 business day), provided that the sender maintains a machine record of the completed
18 transmission.
19 4.4 Claims Presentation. For all claims arising from or related to this Agreement,
20 nothing in this Agreement establishes, waives, or modifies any claims presentation
21 requirements or procedures provided by law, including the Government Claims Act (Division 3.6
22 of Title 1 of the Government Code, beginning with section 810).
23 Article 5
24 Termination and Suspension
25 5.1 Termination for Non-Allocation of Funds. The terms of this Agreement are
26 contingent on the approval of funds by the appropriating government agency. If sufficient funds
27 are not allocated, then the County, upon at least 10 days' advance written notice to the
28 Contractor, may:
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1 (A) Modify the services provided by the Contractor under this Agreement; or
2 (B) Terminate this Agreement.
3 5.2 Termination for Breach.
4 (A) Upon determining that a breach (as defined in paragraph (C) below) has
5 occurred, the County may give written notice of the breach to the Contractor. The written
6 notice may suspend performance under this Agreement, and must provide at least 30
7 days for the Contractor to cure the breach.
8 (B) If the Contractor fails to cure the breach to the County's satisfaction within the
9 time stated in the written notice, the County may terminate this Agreement immediately.
10 (C) For purposes of this section, a breach occurs when, in the determination of the
11 County, the Contractor has:
12 (1) Obtained or used funds illegally or improperly;
13 (2) Failed to comply with any part of this Agreement;
14 (3) Submitted a substantially incorrect or incomplete report to the County; or
15 (4) Improperly performed any of its obligations under this Agreement.
16 5.3 Termination without Cause. In circumstances other than those set forth above, the
17 County may terminate this Agreement by giving at least ten (10) days advance written notice to
18 the Contractor, and County shall pay Contractor for all Services rendered up to, and through the
19 date of termination, in accordance with the terms set forth in Exhibit B, and as amended, from
20 time to time, by the express written authorization of the Director of Human Resources for the
21 County of Fresno, pursuant to their authority to modify the type, terms, conditions, kinds of tests,
22 and populations subject to testing, as referenced in Articles 2.2 and 11.1 of this Agreement .
23 5.4 No Penalty or Further Obligation. Any termination of this Agreement by the County
24 under this Article 5 is without penalty to or further obligation of the County.
25 5.5 County's Rights upon Termination. Upon termination for breach under this Article
26 6, the County may demand repayment by the Contractor of any monies disbursed to the
27 Contractor under this Agreement that, in the County's sole judgment, were not expended in
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1 compliance with this Agreement. The Contractor shall promptly refund all such monies upon
2 demand. This section survives the termination of this Agreement.
3 Article 6
4 Independent Contractor
5 6.1 Status. In performing under this Agreement, the Contractor, including its officers,
6 agents, employees, and volunteers, is at all times acting and performing as an independent
7 contractor, in an independent capacity, and not as an officer, agent, servant, employee, joint
8 venturer, partner, or associate of the County.
9 6.2 Verifying Performance. The County has no right to control, supervise, or direct the
10 manner or method of the Contractor's performance under this Agreement, but the County may
11 verify that the Contractor is performing according to the terms of this Agreement.
12 6.3 Benefits. Because of its status as an independent contractor, the Contractor has no
13 right to employment rights or benefits available to County employees. The Contractor is solely
14 responsible for providing to its own employees all employee benefits required by law. The
15 Contractor shall save the County harmless from all matters relating to the payment of
16 Contractor's employees, including compliance with Social Security withholding and all related
17 regulations.
18 6.4 Services to Others. The parties acknowledge that, during the term of this
19 Agreement, the Contractor may provide services to others unrelated to the County.
20 Article 7
21 Indemnity and Defense
22 7.1 Indemnity. The Contractor shall indemnify and hold harmless and defend the
23 County (including its officers, agents, employees, and volunteers) against all claims, demands,
24 injuries, damages, costs, expenses (including attorney fees and costs), fines, penalties, and
25 liabilities of any kind to the County, the Contractor, or any third party that arise from or relate to
26 the performance or failure to perform by the Contractor (or any of its officers, agents,
27 subcontractors, or employees) under this Agreement. The County may conduct or participate in
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1 its own defense without affecting the Contractor's obligation to indemnify and hold harmless or
2 defend the County.
3 7.2 Survival. This Article 7 survives the termination of this Agreement.
4 Article 8
5 Insurance
6 8.1 The Contractor shall comply with all the insurance requirements in Exhibit D to this
7 Agreement.
8 Article 9
9 Inspections, Audits, and Public Records
10 9.1 Inspection of Documents. The Contractor shall make available to the County, and
11 the County may examine at any time during business hours and as often as the County deems
12 necessary, all of the Contractor's records and data with respect to the matters covered by this
13 Agreement, excluding attorney-client privileged communications. The Contractor shall, upon
14 request by the County, permit the County to audit and inspect all of such records and data to
15 ensure the Contractor's compliance with the terms of this Agreement.
16 9.2 State Audit Requirements. If the compensation to be paid by the County under this
17 Agreement exceeds $10,000, the Contractor is subject to the examination and audit of the
18 California State Auditor, as provided in Government Code section 8546.7, for a period of three
19 years after final payment under this Agreement. This section survives the termination of this
20 Agreement.
21 9.3 Public Records. The County is not limited in any manner with respect to its public
22 disclosure of this Agreement or any record or data that the Contractor may provide to the
23 County. The County's public disclosure of this Agreement or any record or data that the
24 Contractor may provide to the County may include but is not limited to the following:
25 (A) The County may voluntarily, or upon request by any member of the public or
26 governmental agency, disclose this Agreement to the public or such governmental
27 agency.
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1 (B) The County may voluntarily, or upon request by any member of the public or
2 governmental agency, disclose to the public or such governmental agency any record or
3 data that the Contractor may provide to the County, unless such disclosure is prohibited
4 by court order.
5 (C)This Agreement, and any record or data that the Contractor may provide to the
6 County, is subject to public disclosure under the Ralph M. Brown Act (California
7 Government Code, Title 5, Division 2, Part 1, Chapter 9, beginning with section 54950).
8 (D)This Agreement, and any record or data that the Contractor may provide to the
9 County, is subject to public disclosure as a public record under the California Public
10 Records Act (California Government Code, Title 1, Division 7, Chapter 3.5, beginning
11 with section 6250) ("CPRA").
12 (E) This Agreement, and any record or data that the Contractor may provide to the
13 County, is subject to public disclosure as information concerning the conduct of the
14 people's business of the State of California under California Constitution, Article 1,
15 section 3, subdivision (b).
16 (F) Any marking of confidentiality or restricted access upon or otherwise made with
17 respect to any record or data that the Contractor may provide to the County shall be
18 disregarded and have no effect on the County's right or duty to disclose to the public or
19 governmental agency any such record or data.
20 9.4 Public Records Act Requests. If the County receives a written or oral request
21 under the CPRA to publicly disclose any record that is in the Contractor's possession or control,
22 and which the County has a right, under any provision of this Agreement or applicable law, to
23 possess or control, then the County may demand, in writing, that the Contractor deliver to the
24 County, for purposes of public disclosure, the requested records that may be in the possession
25 or control of the Contractor. Within five business days after the County's demand, the
26 Contractor shall (a) deliver to the County all of the requested records that are in the Contractor's
27 possession or control, together with a written statement that the Contractor, after conducting a
28 diligent search, has produced all requested records that are in the Contractor's possession or
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1 control, or (b) provide to the County a written statement that the Contractor, after conducting a
2 diligent search, does not possess or control any of the requested records. The Contractor shall
3 cooperate with the County with respect to any County demand for such records. If the
4 Contractor wishes to assert that any specific record or data is exempt from disclosure under the
5 CPRA or other applicable law, it must deliver the record or data to the County and assert the
6 exemption by citation to specific legal authority within the written statement that it provides to
7 the County under this section. The Contractor's assertion of any exemption from disclosure is
8 not binding on the County, but the County will give at least 10 days' advance written notice to
9 the Contractor before disclosing any record subject to the Contractor's assertion of exemption
10 from disclosure. The Contractor shall indemnify the County for any court-ordered award of costs
11 or attorney's fees under the CPRA that results from the Contractor's delay, claim of exemption,
12 failure to produce any such records, or failure to cooperate with the County with respect to any
13 County demand for any such records.
14 Article 10
15 Disclosure of Self-Dealing Transactions
16 10.1 Applicability. This Article 10 applies if the Contractor is operating as a corporation,
17 or changes its status to operate as a corporation.
18 10.2 Duty to Disclose. If any member of the Contractor's board of directors is party to a
19 self-dealing transaction, he or she shall disclose the transaction by completing and signing a
20 "Self-Dealing Transaction Disclosure Form" (Exhibit C to this Agreement) and submitting it to
21 the County before commencing the transaction or immediately after.
22 10.3 Definition. "Self-dealing transaction" means a transaction to which the Contractor is
23 a party and in which one or more of its directors, as an individual, has a material financial
24 interest.
25 Article 11
26 General Terms
27 11.1 Modification. Except as provided in Article 5, "Termination and Suspension," this
28 Agreement may not be modified, and no waiver is effective, except by written agreement signed
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1 by both parties. The Contractor acknowledges that County employees have no authority to
2 modify this Agreement except as expressly provided in this Agreement. However, the Director of
3 Human Resources for the County of Fresno shall have the authority to modify the population
4 tested, in classification, kind, and number, as well as the types and frequency of tests
5 delivered, in location, kind, and number, sufficient to meet the need for testing compelled by
6 regulation or related health efforts pursued as a function of the human resources department for
7 the County of Fresno, so long as the total compensation does not exceed the compensation
8 maximum, in Article 2.
9 11.2 Non-Assignment. Neither party may assign its rights or delegate its obligations
10 under this Agreement without the prior written consent of the other party.
11 11.3 Governing Law. The laws of the State of California govern all matters arising from
12 or related to this Agreement.
13 11.4 Jurisdiction and Venue. This Agreement is signed and performed in Fresno
14 County, California. Contractor consents to California jurisdiction for actions arising from or
15 related to this Agreement, and, subject to the Government Claims Act, all such actions must be
16 brought and maintained in Fresno County.
17 11.5 Construction. The final form of this Agreement is the result of the parties' combined
18 efforts. If anything in this Agreement is found by a court of competent jurisdiction to be
19 ambiguous, that ambiguity shall not be resolved by construing the terms of this Agreement
20 against either party.
21 11.6 Days. Unless otherwise specified, "days" means calendar days.
22 11.7 Headings. The headings and section titles in this Agreement are for convenience
23 only and are not part of this Agreement.
24 11.8 Severability. If anything in this Agreement is found by a court of competent
25 jurisdiction to be unlawful or otherwise unenforceable, the balance of this Agreement remains in
26 effect, and the parties shall make best efforts to replace the unlawful or unenforceable part of
27 this Agreement with lawful and enforceable terms intended to accomplish the parties' original
28 intent.
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1 11.9 Nondiscrimination. During the performance of this Agreement, the Contractor shall
2 not unlawfully discriminate against any employee or applicant for employment, or recipient of
3 services, because of race, religious creed, color, national origin, ancestry, physical disability,
4 mental disability, medical condition, genetic information, marital status, sex, gender, gender
5 identity, gender expression, age, sexual orientation, military status or veteran status pursuant to
6 all applicable State of California and federal statutes and regulation.
7 11.10 No Waiver. Payment, waiver, or discharge by the County of any liability or obligation
8 of the Contractor under this Agreement on any one or more occasions is not a waiver of
9 performance of any continuing or other obligation of the Contractor and does not prohibit
10 enforcement by the County of any obligation on any other occasion.
11 11.11 Entire Agreement. This Agreement, including its exhibits, is the entire agreement
12 between the Contractor and the County with respect to the subject matter of this Agreement,
13 and it supersedes all previous negotiations, proposals, commitments, writings, advertisements,
14 publications, and understandings of any nature unless those things are expressly included in
15 this Agreement. If there is any inconsistency between the terms of this Agreement without its
16 exhibits and the terms of the exhibits, then the inconsistency will be resolved by giving
17 precedence first to the terms of this Agreement without its exhibits, and then to the terms of the
18 exhibits.
19 11.12 No Third-Party Beneficiaries. This Agreement does not and is not intended to
20 create any rights or obligations for any person or entity except for the parties.
21 11.13 Authorized Signature. The Contractor represents and warrants to the County that:
22 (A) The Contractor is duly authorized and empowered to sign and perform its
23 obligations under this Agreement.
24 (B) The individual signing this Agreement on behalf of the Contractor is duly
25 authorized to do so and his or her signature on this Agreement legally binds the
26 Contractor to the terms of this Agreement.
27 11.14 Electronic Signatures. The parties agree that this Agreement may be executed by
28 electronic signature as provided in this section.
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1 (A) An "electronic signature" means any symbol or process intended by an individual
2 signing this Agreement to represent their signature, including but not limited to (1) a
3 digital signature; (2) a faxed version of an original handwritten signature; or (3) an
4 electronically scanned and transmitted (for example by PDF document) version of an
5 original handwritten signature.
6 (B) Each electronic signature affixed or attached to this Agreement (1) is deemed
7 equivalent to a valid original handwritten signature of the person signing this Agreement
8 for all purposes, including but not limited to evidentiary proof in any administrative or
9 judicial proceeding, and (2) has the same force and effect as the valid original
10 handwritten signature of that person.
11 (C)The provisions of this section satisfy the requirements of Civil Code section
12 1633.5, subdivision (b), in the Uniform Electronic Transaction Act (Civil Code, Division 3,
13 Part 2, Title 2.5, beginning with section 1633.1).
14 (D) Each party using a digital signature represents that it has undertaken and
15 satisfied the requirements of Government Code section 16.5, subdivision (a),
16 paragraphs (1) through (5), and agrees that each other party may rely upon that
17 representation.
18 (E) This Agreement is not conditioned upon the parties conducting the transactions
19 under it by electronic means and either party may sign this Agreement with an original
20 handwritten signature.
21 11.15 Counterparts. This Agreement may be signed in counterparts, each of which is an
22 original, and all of which together constitute this Agreement.
23 11.16
24 Article 12
25 Consistent Federal Income Tax Position
26 12.1 Contractor acknowledges that County's facilities and/or properties listed in Exhibit E
27 to this Agreement, have been acquired, constructed, or improved (and that the Juvenile Justice
28 Campus (JJC) listed on Exhibit E is situated on land that has been acquired) using net
proceeds
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1 of governmental tax-exempt bons (collectively, "Bond-Financed Facilities"). Contractor agrees
2 that, with respect to this Agreement and any Services that Contractor may provide at any of the
3 Bond-Financed Facilities, Contractor is not entitled to take, and shall not take, any position (also
4 known as a "tax position") with the Internal Revenue Service ("IRS") that is inconsistent with
5 being a "service provider" to the County, as a "qualified user" with respect to Bond-Financed
6 Facilities, as a "managed property", as all of those terms are used in Internal Revenue Service
7 Procedure 2017-13, and to that end, for example, and not as a limitation, Contractor agrees that
8 Contractor shall not, in connection with any federal income tax return that it files with the IRS or
9 any other statement or information that it provides to the IRS, (a) claim ownership, or that it is a
10 lessee, of any portion of the Bond-Financed Facilities, or (b) claim any depreciation or
11 amortization deduction, investment tax credit, or deduction for any payment as rent with respect
12 to the Bond-Finance Facilities.
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1 The parties are signing this Agreement on the date stated in the introductory clause.
2
PINNACLE TRAINING SYSTEMS, LLC. COUNTY OF FRESNO
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5 Felicia Gomez, Owner Brian Pacheco, Chairman of the Board of
6 6011 N. Fresno St., Suite 120 Supervisors of the County of Fresno
Fresno, CA, 93721 Attest:
7 Bernice Seidel
Clerk of the Board of Supervisors
8 County of Fresno, State of California
By:
10 Deputy
11 For accounting use only:
12 Org No.: 8925
Account No.: 7925
13 Fund No.: 1060
Subclass No.:
14 10000
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Exhibit A
1 Scope of Services
2 Contractor shall provide the Services to the County as set forth below, upon the terms
3 and conditions set forth in this Agreement. The County and Contractor may amend this Scope
4 of Services, by written agreement between the Parties, from time to time during the Term of the
5 Agreement and/or any renewal period.
6 Contractor shall provide the following COVID-19 Testing: (1) COVID-19 PCR Nasal
7 Swab Testing; (2) rapid antigen testing; (3) venipuncture blood draw antibody testing; and (4)
8 Reporting as per County needs.
9 Staff performing the testing will be licensed staff within their scope of practice allowed
10 under State law. All Contractor Staff will be trained to conduct each lab-partner or DPH-provided
11 test for SARS-COV-2 virus per test kit manufacturer instructions. Nasal swab activities and
12 protocols will be compliant with applicable federal and state laws in relation to laboratory testing
13 and nursing procedures.
14 Contractor will conduct on-site testing at days, times, and locations determined by
15 County via written communication from the Director of the Department of Human Resources for
16 the County of Fresno, or his or her designee(s). Generally, the Director or designee should
17 provide five (5) days advanced written notice for changes to the type, number, location, and
18 time of tests to be delivered, but Contractor acknowledges that communication outside of
19 normal business hours is expected, and that 24 hours of notice shall suffice in emergency
20 situations, whether those emergencies are caused by regulatory changes, COVID-19 outbreaks,
21 or shifts in the population to be tested, and in the sole judgement of the County. County will
22 endeavor to give as much advanced notice as may be reasonably practicable.
23 Contractor will have the capacity, with two staff persons, to perform up to 25 tests per
24 hour and will not increase staffing except by prior arrangement and written consent of Risk
25 Management. In no case will changes to staffing performed without the consent of Risk
26 Management result in altered compensation for the testing event(s). The testing will be
27 administered to County employees, independent contractors conducting work for the County,
28 household members of County employees, incarcerated persons at County facilities and others
A-1
Exhibit A
1 as needed in the determination of County, by the Risk Manager and the Director of Human
2 Resources for the County of Fresno ("Director").
3 As referenced in Articles 2 and 11.1, of this Agreement, the Director shall have the
4 authority to modify the population tested, in classification, kind, and number, as well as the
5 types and frequency of tests delivered, in location, kind, and number, sufficient to meet the need
6 for testing compelled by regulation or related health efforts pursued as a function of the human
7 resources department for the County of Fresno, so long as the total compensation does not
8 exceed the compensation maximum, in Article 2. In the event that supplies, or regulatory
9 requirements, result in fluctuations from the pricing contained in this Exhibit A, Contractor and
10 County will engage in good-faith negotiation at the lowest possible price to maintain the level of
11 service and in no case shall services be charged at different rates save for the written approval
12 of the Director. Any agreement between the parties which changes to the amount of the
13 maximum compensation as herein identified shall be approved by the Board.
14 Individuals to be tested will be required to complete a lab requisition form (for PCR
15 testing) and waiver (one time) prior to testing. Contractor will collect specimens per the lab
16 partner test kit instructions and send collected specimens to the lab for processing. PCR Test
17 results will generally be available within 1-2 days, and in no case longer than 4 days, subject to
18 constraints on national and local testing partners due to the pandemic. In the event that testing
19 results are delayed past 4 days, Contractor will relay to all partners that the congregate settings
20 priority 2 applies to County's Covid-19 Testing Program. Rapid antigen test results will be
21 available 15 minutes following collection.
22 The Parties will determine the most cost-effective method for reporting in compliance
23 with HIPAA and privacy guidelines, to include software reporting systems compatible with the
24 County's Eagle-Award-Winning Screening Application ("Screening App"), such as Contractor's
25 MyTestResults.net software system. Reports for all tests will be offered to persons tested via
26 MyTestResults.net, and other methods of communication, as determined by County and
27 Contractor through mutual agreement. Contractor shall report to County all negative results
28 within 24 hours of receipt, and all positive results within 2 hours of receipt. Any individual testing
A-2
Exhibit A
1 positive or inconclusive will be called by Contractor immediately upon receipt and informed of
2 their result with verbal self-isolation instructions. If rapid antigen testing returns a positive or
3 inconclusive result, the individual being tested will be given a PCR test and directed to isolate in
4 accordance with DPH guidelines. A confidential email will be sent with official results and the
5 FRI Isolation packet as mandated by the Fresno County Public Health Department. All relevant
6 personnel will be notified by telephone/email. The County of Fresno COVID-19 & Febrile
7 Respiratory Illness Provider Form Portal will be used to notify the County (unless other
8 processes are mandated). Results will be transmitted to the following entities by a method
9 mutually agreeable to Contractor and the organization(s) receiving the reports: County of
10 Fresno Human Resources — Risk Management, the Human Resources Department of the
11 Department for whom the Employee works, and designated medical and worker's compensation
12 providers contracted with the County of Fresno.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
A-3
Exhibit B
1 Compensation
2 The Contractor will be compensated for performance of its services under this
3 Agreement as provided in this Exhibit B. The Contractor is not entitled to any compensation
4 except as expressly provided in this Exhibit B.
5 Services performed on one week will be reported to the County by the following Monday.
6 Contractor understands that because of fund-reporting requirements all tests performed
7 in a given month must be reported on the first day following the close of the month.
8 County shall pay $155 per PCR test if at least 25 tests are run per hour at each testing
9 site. If fewer than 25 tests are run per hour, then County shall also pay an hourly rate
10 for labor of$100 per hour per Contractor staff member assigned to the site, with no more than 2
11 PTS staff assigned to the site except by written approval of the Director of Human Resources
12 for the County of Fresno. The parties agree that, for billing purposes, the total tests for the site
13 in a given week will be sequenced into lots of 25 and applied to each hour.
14 For example, if Contractor is on site for four hours in a week and performs 33 tests, the
15 first hour will be allocated 25 tests, which will be invoiced and paid at the $155 per test rate, and
16 the remaining three hours will be invoiced at the $100 per hour per Contractor staff member
17 assigned plus the $155 per test rate for the remaining 8 tests performed.
18 The costs outlined above includes all staff qualified to provide this type of testing,
19 screening, PPE, data collection, reporting and record keeping according to County, State and
20 HIPAA regulations.
21 County shall pay $67 per test for DPH provided rapid antigen tests and $78 per rapid
22 antigen test for Contractor provided tests. If the number of tests does not equate to $225
23 per hour, a minimum charge of$225 per hour will be charged.
24 For example, if less than 14 people are tested during a four-hour event, County would
25 pay $900 (4x$225)for the event.
26 County shall pay $105 per test for antibody testing. If less than 20 tests are conducted
27 per hour, then County shall also pay an hourly rate for labor of$100 per hour per Contractor
28 staff member assigned to the site.
B-1
Exhibit B
1 Services will be billed monthly for those rendered. Payment will be due 45 days after
2 receipt of invoice.
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
B-2
Exhibit C
Self-Dealing Transaction Disclosure Form
In order to conduct business with the County of Fresno ("County"), members of a
contractor's board of directors ("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 used 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.
The form must be signed by the board member that is involved in the self-dealing
transaction described in Sections (3) and (4).
C-1
Exhibit C
(1) Company Board Member Information:
Name: Date:
Job Title:
(2) Company/Agency Name and Address:
(3) Disclosure (Please describe the nature of the self-dealing transaction you are a
party to)
(4) Explain why this self-dealing transaction is consistent with the requirements of
Corporations Code § 5233 (a)
(5) Authorized Signature
Signature: Date:
C-2
Exhibit D
Insurance Requirements
1. Required Policies
Without limiting the County's right to obtain indemnification from the Contractor or any third
parties, Contractor, at its sole expense, shall maintain in full force and effect the following
insurance policies throughout the term of this Agreement.
(A) 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 must be issued on a per occurrence basis.
Coverage must include products, completed operations, property damage, bodily injury,
personal injury, and advertising injury. The Contractor shall obtain an endorsement to
this policy naming the County of Fresno, its officers, agents, employees, and volunteers,
individually and collectively, as additional insureds, but only insofar as the operations
under this Agreement are concerned. Such coverage for additional insureds will apply as
primary insurance and any other insurance, or self-insurance, maintained by the County
is excess only and not contributing with insurance provided under the Contractor's
policy.
(B) Automobile Liability. Automobile liability insurance with limits of not less than One
Million Dollars ($1,000,000) per occurrence for bodily injury and for property damages.
Coverage must include any auto used in connection with this Agreement.
(C)Workers Compensation. Workers compensation insurance as required by the laws of
the State of California with statutory limits.
(D) Employer's Liability. Employer's liability insurance with limits of not less than One
Million Dollars ($1,000,000) per occurrence for bodily injury and for disease.
(E) Professional Liability. Professional liability insurance with limits of not less than One
Million Dollars ($1,000,000) per occurrence and an annual aggregate of Three Million
Dollars ($3,000,000). If this is a claims-made policy, then (1) the retroactive date must
be prior to the date on which services began under this Agreement; (2) the Contractor
shall maintain the policy and provide to the County annual evidence of insurance for not
less than five years after completion of services under this Agreement; and (3) if the
policy is canceled or not renewed, and not replaced with another claims-made policy
with a retroactive date prior to the date on which services begin under this Agreement,
then the Contractor shall purchase extended reporting coverage on its claims-made
policy for a minimum of five years after completion of services under this Agreement.
(F) Technology Professional Liability (Errors and Omissions). Technology professional
liability (errors and omissions) insurance with limits of not less than Two Million Dollars
($2,000,000) per occurrence and in the aggregate. Coverage must encompass all of the
Contractor's obligations under this Agreement, including but not limited to claims
involving Cyber Risks.
(G)Cyber Liability. Cyber liability insurance with limits of not less than Two Million Dollars
($2,000,000) per occurrence. Coverage must include claims involving Cyber Risks. The
cyber liability policy must be endorsed to cover the full replacement value of damage to,
D-1
Exhibit D
alteration of, loss of, or destruction of intangible property (including but not limited to
information or data) that is in the care, custody, or control of the Contractor.
Definition of Cyber Risks. "Cyber Risks" include but are not limited to (i) Security
Breach, which may include Disclosure of Personal Information to an Unauthorized Third
Party; (ii) data breach; (iii) breach of any of the Contractor's obligations under Exhibits A
and B of this Agreement; (iv) system failure; (v) data recovery; (vi) failure to timely
disclose data breach or Security Breach; (vii) failure to comply with privacy policy; (viii)
payment card liabilities and costs; (ix) infringement of intellectual property, including but
not limited to infringement of copyright, trademark, and trade dress; (x) invasion of
privacy, including release of private information; (xi) information theft; (xii) damage to or
destruction or alteration of electronic information; (xiii) cyber extortion; (xiv) extortion
related to the Contractor's obligations under this Agreement regarding electronic
information, including Personal Information; (xv) fraudulent instruction; (xvi) funds
transfer fraud; (xvii) telephone fraud; (xviii) network security; (xix) data breach response
costs, including Security Breach response costs; (xx) regulatory fines and penalties
related to the Contractor's obligations under this Agreement regarding electronic
information, including Personal Information; and (xxi) credit monitoring expenses.
2. Additional Requirements
(A) Verification of Coverage. Within 30 days after the Contractor signs this Agreement,
and at any time during the term of this Agreement as requested by the County's Risk
Manager or the County Administrative Office, the Contractor shall deliver, or cause its
broker or producer to deliver, to the County Risk Manager, at 2220 Tulare Street, 16th
Floor, Fresno, California 93721, or HRRiskManagement@fresnocountyca.gov, and by
mail or email to the person identified to receive notices under this Agreement,
certificates of insurance and endorsements for all of the coverages required under this
Agreement.
(i) Each insurance certificate must state that: (1) the insurance coverage has been
obtained and is in full force; (2) the County, its officers, agents, employees, and
volunteers are not responsible for any premiums on the policy; and (3) the
Contractor has waived its right to recover from the County, its officers, agents,
employees, and volunteers any amounts paid under any insurance policy
required by this Agreement and that waiver does not invalidate the insurance
policy.
(ii) The commercial general liability insurance certificate must also state, and include
an endorsement, that the County of Fresno, its officers, agents, employees, and
volunteers, individually and collectively, are additional insureds insofar as the
operations under this Agreement are concerned. The commercial general liability
insurance certificate must also state that the coverage shall apply as primary
insurance and any other insurance, or self-insurance, maintained by the County
shall be excess only and not contributing with insurance provided under the
Contractor's policy.
(iii) The automobile liability insurance certificate must state that the policy covers any
auto used in connection with this Agreement.
D-2
Exhibit D
(iv) The professional liability insurance certificate, if it is a claims-made policy, must
also state the retroactive date of the policy, which must be prior to the date on
which services began under this Agreement.
(v) The technology professional liability insurance certificate must also state that
coverage encompasses all of the Contractor's obligations under this Agreement,
including but not limited to claims involving Cyber Risks, as that term is defined in
this Agreement.
(vi) The cyber liability insurance certificate must also state that it is endorsed, and
include an endorsement, to cover the full replacement value of damage to,
alteration of, loss of, or destruction of intangible property (including but not limited
to information or data) that is in the care, custody, or control of the Contractor.
(B) Acceptability of Insurers. All insurance policies required under this Agreement must be
issued by admitted insurers licensed to do business in the State of California and
possessing at all times during the term of this Agreement an A.M. Best, Inc. rating of no
less than A: VI I.
(C) Notice of Cancellation or Change. For each insurance policy required under this
Agreement, the Contractor shall provide to the County, or ensure that the policy requires
the insurer to provide to the County, written notice of any cancellation or change in the
policy as required in this paragraph. For cancellation of the policy for nonpayment of
premium, the Contractor shall, or shall cause the insurer to, provide written notice to the
County not less than 10 days in advance of cancellation. For cancellation of the policy
for any other reason, and for any other change to the policy, the Contractor shall, or shall
cause the insurer to, provide written notice to the County not less than 30 days in
advance of cancellation or change. The County in its sole discretion may determine that
the failure of the Contractor or its insurer to timely provide a written notice required by
this paragraph is a breach of this Agreement.
(D) County's Entitlement to Greater Coverage. If the Contractor has or obtains insurance
with broader coverage, higher limits, or both, than what is required under this
Agreement, then the County requires and is entitled to the broader coverage, higher
limits, or both. To that end, the Contractor shall deliver, or cause its broker or producer
to deliver, to the County's Risk Manager certificates of insurance and endorsements for
all of the coverages that have such broader coverage, higher limits, or both, as required
under this Agreement.
(E) Waiver of Subrogation. The Contractor waives any right to recover from the County, its
officers, agents, employees, and volunteers any amounts paid under the policy of
worker's compensation insurance required by this Agreement. The Contractor is solely
responsible to obtain any policy endorsement that may be necessary to accomplish that
waiver, but the Contractor's waiver of subrogation under this paragraph is effective
whether or not the Contractor obtains such an endorsement.
(F) County's Remedy for Contractor's Failure to Maintain. If the Contractor fails to keep
in effect at all times any insurance coverage required under this Agreement, the County
may, in addition to any other remedies it may have, suspend or terminate this
Agreement upon the occurrence of that failure, or purchase such insurance coverage,
D-3
Exhibit D
and charge the cost of that coverage to the Contractor. The County may offset such
charges against any amounts owed by the County to the Contractor under this
Agreement.
(G)Subcontractors. The Contractor shall require and verify that all subcontractors used by
the Contractor to provide services under this Agreement maintain insurance meeting all
insurance requirements provided in this Agreement. This paragraph does not authorize
the Contractor to provide services under this Agreement using subcontractors.
D-4
Exhibit E
Health Insurance Portability and Accountability Act(HIPAA)
1. The County is a"Covered Entity,"and the Contractor is a"Business Associate,"as
these terms are defined by 45 CFR 160.103. In connection with providing services under the
Agreement,the parties anticipate that the Contractor will create and/or receive Protected Health
Information("PHI") from or on behalf of the County. The parties enter into this Business Associate
Agreement(BAA)to comply with the Business Associate requirements of HIPAA,to govern the
use and disclosures of PHI under this Agreement. "HIPAA Rules"shall mean the Privacy, Security,
Breach Notification, and Enforcement Rules at 45 CFR Parts 160 and 164.
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
California Welfare and Institutions Code sections 5328, 10850, and 14100.2 et seq.; 42 CFR 2; 42
CFR 431; California Civil Code section 56 et seq.;the Health Insurance Portability and
Accountability Act of 1996, as amended("HIPAA"), including,but not limited to,45 CFR
Parts 160,45 CFR 162, and 45 CFR 164;the Health Information Technology for Economic and
Clinical Health Act("HITECH")regarding the confidentiality and security of patient information,
including,but not limited to 42 USC 17901 et seq.; and the Genetic Information Nondiscrimination
Act("GINA") of 2008 regarding the confidentiality of genetic information.
Except as otherwise provided in this Agreement, the Contractor, as a business associate
of the County, may use or disclose Protected Health Information("PHI") to perform functions,
activities or services for or on behalf of the County, as specified in this Agreement, provided that
such use or disclosure shall not violate HIPAA Rules. The uses and disclosures of PHI may not
be more expansive than those applicable to the County, as the "Covered Entity"under the
HIPAA Rules, except as authorized for management, administrative or legal responsibilities of
the Contractor.
2. The 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
§§ 164.504(e)(2)(i), 164.504(e)(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. The Contractor shall not use such identifying information or genetic information for any
purpose other than carrying out the Contractor's obligations under this Agreement.
3. The 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 of the United States Department of Health and Human Services
("Secretary"), or authorized by the client/patient in writing. In using or disclosing PHI that is
permitted by this Agreement or authorized by law,the Contractor shall make reasonable efforts to
limit PHI to the minimum necessary to accomplish intended purpose of use, disclosure or request.
E-1
Exhibit E
4. For purposes of the above sections, identifying information shall include,but not be
limited to,name, identifying number, symbol, or other identifying particular assigned to the
individual, such as fingerprint or voiceprint, or photograph.
5. For purposes of the above sections, genetic information shall include genetic tests of
family members of an individual or individual(s),manifestation of disease or disorder of family
members of an individual, or any request for or receipt of genetic services by individual or family
members. Family member means a dependent or any person who is first, second,third, or fourth
degree relative.
6. The Contractor shall provide access, at the request of the County, and in the time and
manner designated by the County,to PHI in a designated record set(as defined in 45 CFR §
164.501),to an individual or to COUNTY in order to meet the requirements of 45 CFR § 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 the Contractor cannot
provide access and provides the 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 the
County.
The Contractor shall make any amendment(s) to PHI in a designated record set at the
request of the County or individual, and in the time and manner designated by the County in
accordance with 45 CFR § 164.526.
The Contractor shall provide to the County or to an individual, in a time and manner
designated by the County, information collected in accordance with 45 CFR § 164.528, to permit
the County to respond to a request by the individual for an accounting of disclosures of PHI in
accordance with 45 CFR § 164.528.
7. The Contractor shall report to the County, in writing, any knowledge or
reasonable belief that there has been unauthorized access, viewing, use, disclosure, security
incident, or breach of unsecured PHI not permitted by this Agreement of which the Contractor
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 the County's Information
Security Officer and Privacy Officer and the County's Department of Public Health ("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.
The 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. The Contractor shall investigate such breach and is responsible for all notifications
required by law and regulation or deemed necessary by the County and shall provide a written
report of the investigation and reporting required to the County's Information Security Officer
and Privacy Officer and the County's DPH HIPAA Representative.
E-2
Exhibit E
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
Department of Public Health Department of Public Health Department of Internal
HIPAA Representative Privacy Officer Services
(559) 600-6439 (559) 600-6405 Information Security Officer
P.O. Box 11867 P.O. Box 11867 (559) 600-5800
Fresno, California 93775 Fresno, California 93775 2048 North Fine Street
Fresno, California 93727
8. The Contractor shall make its internal practices, books, and records relating to the
use and disclosure of PHI received from the County, or created or received by the Contractor on
behalf of the County, in compliance with Parts the HIPAA Rules. The Contractor shall make its
internal practices, books, and records relating to the use and disclosure of PHI received from the
County, or created or received by the Contractor on behalf of the County, available to the
Secretary upon demand.
The 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 the Contractor and in
possession of a subcontractor of the Contractor, the Contractor must certify to the Secretary its
efforts to obtain the information from the subcontractor.
9. Safeguards
The Contractor shall implement administrative,physical, and technical safeguards as
required by the HIPAA Security Rule, Subpart C of 45 CFR Part 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 the County and to prevent
unauthorized access, viewing, use, disclosure, or breach of PHI other than as provided for by this
Agreement. The Contractor shall conduct an accurate and thorough assessment of the potential
risks and vulnerabilities to the confidentiality, integrity and availability of electronic PHI. The
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 the Contractor's operations and the nature and scope of its activities. Upon the County's
request, the Contractor shall provide the County with information concerning such safeguards.
The 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:
A. Passwords must not be:
E-3
Exhibit E
(1) 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;
(2) A dictionary word; or
(3) Stored in clear text
B.
Passwords must be:
(1) Eight(8) characters or more in length;
(2) Changed every ninety(90) days;
(3) Changed immediately if revealed or compromised; and
(4) Composed of characters from at least three (3) of the following four(4)
groups from the standard keyboard:
a) Upper case letters (A-Z);
b) Lowercase letters (a-z);
c) Arabic numerals (0 through 9); and
d) Non-alphanumeric characters (punctuation symbols).
The 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.
The 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).
The 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(MIST) as conforming to the Advanced
Encryption Standard(AES) Algorithm. The Contractor must apply appropriate sanctions against
its employees who fail to comply with these safeguards. The Contractor must adopt procedures
for terminating access to PHI when employment of employee ends.
10. Mitigation of Harmful Effects
The Contractor shall mitigate, to the extent practicable, any harmful effect that is
suspected or known to the Contractor of an unauthorized access, viewing,use, disclosure, or
breach of PHI by the Contractor or its subcontractors in violation of the requirements of these
E-4
Exhibit E
provisions. The Contractor must document suspected or known harmful effects and the
outcome.
11. The
Contractor's Subcontractors
The Contractor shall ensure that any of its contractors, including subcontractors, if
applicable, to whom the Contractor provides PHI received from or created or received by the
Contractor on behalf of the County, agree to the same restrictions, safeguards, and conditions
that apply to the 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.
Nothing in this section 11 or this exhibit E authorizes the Contractor to perform services
under this Agreement using subcontractors.
12. Employee Training and Discipline
The 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 the County under this Agreement and use or disclose PHI, and discipline
such employees who intentionally violate any provisions of these provisions, which may include
termination of employment.
13. Termination for Cause
Upon the County's knowledge of a material breach of these provisions by the
Contractor, the County will either:
A. Provide an opportunity for the
Contractor to cure the breach or end the violation, and the County may terminate this Agreement
if the Contractor does not cure the breach or end the violation within the time specified by the
County; or
B. Immediately
terminate this Agreement if the Contractor has breached a material term of this exhibit E and
cure is not possible, as determined by the County.
C. If neither cure nor termination is feasible, the County's
Privacy Officer will report the violation to the Secretary of the U.S. Department of Health and
Human Services.
14. Judicial or Administrative Proceedings
The County may terminate this Agreement if. (1) the 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 in an administrative or civil proceeding in which the
Contractor is a party that the Contractor has violated a privacy or security standard or
requirement of the HITECH Act, HIPAA or other security or privacy laws.
15. Effect of Termination
Upon termination or expiration of this Agreement for any reason, the Contractor shall
E-5
Exhibit E
return or destroy all PHI received from the County (or created or received by the Contractor on
behalf of the County) that the Contractor still maintains in any form, and shall retain no copies of
such PHI. If return or destruction of PHI is not feasible, the Contractor 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 applies to
PHI that is in the possession of subcontractors or agents, if applicable, of the Contractor. If the
Contractor destroys the PHI data, a certification of date and time of destruction shall be provided
to the County by the Contractor.
16. Compliance with Other Laws
To the extent that other state and/or federal laws provide additional, stricter and/or more
protective privacy and/or security protections to PHI or other confidential information covered
under this BAA, the Contractor agrees to comply with the more protective of the privacy and
security standards set forth in the applicable state or federal laws to the extent such standards
provide a greater degree of protection and security than HIPAA Rules or are otherwise more
favorable to the individual.
17. Disclaimer
The County makes no warranty or representation that compliance by the Contractor with
these provisions, the HITECH Act, or the HIPAA Rules, will be adequate or satisfactory for the
Contractor's own purposes or that any information in the Contractor's possession or control, or
transmitted or received by the Contractor, is or will be secure from unauthorized access, viewing,
use, disclosure, or breach. The Contractor is solely responsible for all decisions made by the
Contractor regarding the safeguarding of PHI.
18. Amendment
The parties acknowledge that Federal and State laws relating to electronic data security
and privacy are rapidly evolving and that amendment of this exhibit E 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 the HIPAA Rules, the HITECH Act and other applicable laws
relating to the security or privacy of PHI. The County may terminate this Agreement upon thirty
(30) days written notice in the event that the Contractor does not enter into an amendment
providing assurances regarding the safeguarding of PHI that the County in its sole discretion,
deems sufficient to satisfy the standards and requirements of the HIPAA Rules, and the HITECH
Act.
19. No Third-Party Beneficiaries
Nothing expressed or implied in the provisions of this exhibit E is intended to confer, and
nothing in this exhibit E does confer, upon any person other than the County or the Contractor
and their respective successors or assignees, any rights, remedies, obligations or liabilities
whatsoever.
20. Interpretation
E-6
Exhibit E
The provisions of this exhibit E shall be interpreted as broadly as necessary to implement
and comply with the HIPAA Rules, 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 the HIPAA Rules.
21. Regulatory References
A reference in the terms and conditions of these provisions to a section in the HIPAA
Rules means the section as in effect or as amended.
22. Survival
The respective rights and obligations of the Contractor as stated in this exhibit E survive
the termination or expiration of this Agreement.
23. No Waiver of Obligation
Change, waiver or discharge by the County of any liability or obligation of the Contractor
under this exhibit E on any one or more occasions is not a waiver of performance of any
continuing or other obligation of the Contractor and does not prohibit enforcement by the
County of any obligation on any other occasion.
E-7
Exhibit E
Bond-Financed Facilities
Downtown Jail Facilities, including the Main Jail, the North Annex Jail, the South Annex Jail, and
(to be completed) the West Annex Jail;
Sheriff Area 2 Substation (to be completed);
Downtown Courthouse, including South Annex Jail garage;
Crocker Building;
Juvenile Justice Center (JJC);
Juvenile Justice Center (JJC) Courthouse;
Morgue; and
Elections Warehouse.
E-8