HomeMy WebLinkAboutAgreement A-19-048 with Fresno Housing Authority.pdf1
2 MEMORANDUM OF UNDERSTANDING
3 Between
4 The County of Fresno
5 And
6 The Fresno Housing Authority
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8 THIS MEMORANDUM OF UNDERSTANDING hereinafter referred to as "MOU" or
9 "Agreement" is made and entered into this day of , 2019 (the "Effective Date ") by
1 0 and between the County of Fresno , a political subdivision of the State of California, hereinafter referred
11 to as "COUNTY," and The Fresno Housing Authority, hereinafter refelTed to as "FHA."
1 2 WHEREAS, the State of California, Housing and Community Development (HCD) has made
13 available No Place Like Home (NPLH) non-competitive and competitive funding to Ca lifornia counties.
14 WHEREAS, The County of Fresno will compete with other California counties for up to $92
15 million in the frrst off our (4) annua l funding rounds for HCD NPLH frnancing for the purpose of
1 6 developing permanent supportive housing for adults, transitional age youth, or children and their famil ie s
17 who reside within Fresno County and who are Homeless, Chronically Homeless or At-Risk of Chronic
18 Homelessness as a result of their serious mental illnes s and/or severe emotional disturbance and are in
1 9 need of mental health services ; and
20 WHEREAS , the Mental Health Servic es Act, Special Needs Housing Program (SNHP), which is
2 1 administered by the California Housing Finance Agency (CaIHFA), allows local governments , such as
22 the COUNTY, to use Mental Health Services Act (MHSA) and other local funds to commit frnancing for
23 SNHP housing units for individuals with serious mental i lln ess, and their fami li es, who are Homeless or
2 4 at risk of Homeless ness;
2 5 WHEREAS, the State of California will make available to COUNTY $6,168,706 (Six million
26 one hundred sixty-eight thousand seven hundred and six dollars) in MHSA SNHP funds, and $2 ,183,000
27 (Two million one hundred eighty-three thousand dollars) in Non-Competitive NPLH funds from the
28 State of California ;
228 1 206vl / 1862 1 .0001 -I -DBH & FHA M O U -HCD NPLH
Agreement No. 19-048
29th January
1 WHEREAS, by this MOU, the FHA is requesting and the COUNTY commits to allocate up to
2 $6 ,168 ,706 (Six million one hundred sixty-eight thousand seven hundred and six dollars) in SNHP funds
3 and up to $2,183 ,000 (Two million one hundred eighty-three thousand dollars) of Non-Competitive
4 NPLH funds to develop a minimum of39 SNHP housing and 15 NPLH units;
5 WHEREAS, the FHA, among other things, coordinates financing, develops and manages
6 supportive housing developments in Fresno County, and;
7 WHEREAS, the FHA previously partnered with Fresno County in the development of permanent
8 suppOitive housing utilizing MHSA financing, which resulted in the Renaissance developments of
9 Trinity, Alta Monte and Santa Clara; providing permanent supportive housing for homeless individuals
1 0 living with a severe mental illness who re side within Fresno County; and
1 1 WHEREAS, the FHA represents that it is a qualified developer and borrower of permanent
1 2 supportive housing developments in Fresno County; and
13 WHEREAS, COUNTY and FHA previously entered into two (2) separate agreements to develop
14 permanent supportive housing (County Agreement # 08-114 and # 12-445) which expired by their own
15 term s June 30 , 2012 and June 30 2015 , re spectively ; and
16 WHEREAS, the parties desire to enter into this new Agreement , wherein the parties will develop,
17 operate and maintain new permanent supportive hou s ing projects for residents of Fresno County living
18 with severe mental illness and/or seriou s emotional disturbances and who are Homeless, Chronically
19 Homeless, or At-Risk of Chronic Homelessness, all in accordance with the HCD NPLH program
20 Guidelines; Welfare and Institutions Code Sections 5849 and 5890; the MHSA Hou s ing Guidelines; the
21 SNHP; and other future permanent supportive housing funding sources, as identified.
22 NOW , THEREFORE, in consideration of the recitals set forth above, which are incorporated
23 herein by this reference, and the mutual covenants and undertakings contained herein, the receipt and
24 sufficiency of which is hereby acknowledged, the parties agree as follows:
25 1. PURPOSE
26 The COUNTY and FHA desire to develop, operate and maintain permanent supportive housing
27 opportunities in accordance with supportive hou sing funding source program guidelines and regulations.
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1 To do so , the COUNTY and FHA will r esearch and pursue permanent s upportive housing development
2 opportunities.
3 2. RESPONSIBILITIES
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A. The FHA shall be responsible to:
(1) Under the direction of COUNTY, prepare any future , agreed upon HCD
NPLH, or other permanent supportive housing funding sources, supportive housing application(s). The
HCD NPLH supportive housing application, SNHP, and any additional supportive housing applications
wou ld include the FHA as the deve loper, propelty manager and owner; however, any role or
respons ibility of FHA in any suppOttive housing program application shall be determined by COUNTY.
Any s upportive housing application completed by the FHA shall be approved by the COUNTY and such
approval shall not be unreasonably withheld. The Application(s) shall comply with all state fair housing
laws, regulation s and directives as required by the funding source, i.e. HCD NPLH, SNHP, MHSA, etc.
As palt of any supportive housing program application process, both COUNTY and FHA s hall research
and identify potential housing sites to be funded with HCD NPLH or SNHP fund s and l or other applicable
funding so urce s or identify other funding sources that can be utilized andl or leve raged to provide for the
development of permanent supportive housing unit s.
(2) Maintain support ive housing resource information for use by individuals
hou se d, fam il y members andl or s upport sys tem s of individuals and supportiv e service s staff to assist in
the iden tifi cation and utiliz ation of appropriate s upportive housing re sources in th e community.
(3) Make rea so nable effOtts to complete all program-reporting requirements
spec ific to each funding source for any supp ortive housing developments resulting from this Agreement.
(4) Provide property management services, either directly or through a
subcontract with a qualified firm , for permanent s upportive housing projects developed as a result of this
Agreement. Services may include, but not be limited to rent collection, property maintenance and
repairs.
B. The COUNTY shall be responsibl e to:
(1) A ss ign appropriate s taff to palticipate in the planning and hou s ing
28 development process with the FHA.
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(2) Timely consider and approve all supportive housing application s presented
(3) RepOlt required supportive hous ing program information to the State of
4 California HCD, CalHFA, and other identified funding source, as related to any permanent supportive
5 housing developments as a result of this Agreement.
6 (4) Upon request from the FHA, provide all necessary or relevant demographic
7 information regarding the specified target populations to be served by permanent supportive hous ing
8 developments as a result of this Agreement.
9 (5) Ensure there are an adequate number of eligible, celtified tenant refen·als
10 made to permanent supportive housing projects developed by the FHA under this Agreement. Such
11 referrals must meet the tenant eligibility requirements established for any given permanent s upportive
12 housing development as mandated by the funding source target population definition and as determined
13 by Fresno County's Behavioral Health Director or designee, or by other funding sources, as applicable.
14 (6) Ensw·e the commitment and coordination of the appropriate level of case
15 management or other types of supportive services are available on a timely basis to meet the behavioral
16 health needs for individuals of any permanent supportive housing projects developed under this
17 Agreement. These services will be voluntary and flexible and meet the needs as determined by the
18 individuals.
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C . In collaboration, both COUNTY and FHA shall be responsible to:
(I) No le ss than qualterly, representatives from COUNTY, FHA and other
interested and invited participants will meet to discuss any potential new projects, review any previous
work accomplished and assess the working relationship between all parties . The COUNTY and FHA
shall mutually agree upon the location of the supportive housing projects proposed for supportive housing
24 program applications.
25 ~) In the event a supportive housing program application is completed by
26 FHA, that it be appropriately submitted to the applicable funding source and meets all legal requirements,
27 including the provisions of Welfare and Institutions Co de Sections 5847 and 5848 regarding po s tings and
28 30-day public comment requirement (W&I Code 5848(b». Additionally, if a supportive hou si n g
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program app li cation is completed and submitted to a funding source, ensure a ll appropriate patiies are
informed of the s ubmittal, including the Fresno County Behavioral Health Board and Fresno County
Boat·d of Supervisors.
(3) In the event a s upportive housing progratn application is funded, County
and FHA shall work collaboratively to ensure all necessary documents, including any MOU and/or other
Agreements, at·e executed to establish the role of the FHA as the qualified developer/borrower/property
manager or a ny combination thereof, and to establish the ro le ofthe COUNTY as the mental health
s upportive service provider, for any supportive housing project funded.
3. TERM
10 This MOU shall commence on the Effective Date, and shall terminate on the 30th day of
11 June 2022. This Agreement may be extended for two (2) additional consecutive twelve (12) month
1 2 periods ; July 1,2022 through June 30, 2023 and July 1,2023 through June 30, 2024, upon the written
13 approval of both patiies no later than sixty (60) days prior to the first day of the next twelve (12) month
14 extension period. The Department of Behavioral Health ("DBH") Director or hi s/her designee is
15 authorized to execute such written approval on behalf of COUNTY based upon FHA's satisfactory
1 6 performance.
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4. TERMINATION
A. Breach of Contract
Either patiy may immediately suspend or telminate thi s Agreement in whol e or
in part, where in the determination by one of the parties there is:
B.
1. An illegal or improper use of funds;
2 . A fai lur e to comply with any term of this Agreement;
3. A substantially incoLTect or incomplete repoli submitted to the
COUNTY; or
4. Improperly performed service.
Without Cause
27 This Agreement may be telminated by either of the parties as to their
28 involvement in this Agre ement, upon the giving of a thirty (30) day advance written notice of an
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1 intention to terminate from one patty to the other.
2 5. COMPENSATION
3 The services performed in accordance with the terms and conditions as stated in this
4 Agreement shall be performed without any monetary compensation by either party .
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6 6. MODIFICATION
7 Any matters of this Agreement may be modified from time to time by the written consent
8 of all the patties without, in any way, affecting the remainder.
9 Notwithstanding the above, minor changes , as determined by COUNTY's Department
1 0 of Behavioral Health Director or his or her de signee may be made with the written approval of
1 1 COUNTY's Department of Behavioral Health Director or designee and FHA. Minor changes may
1 2 include, but are not limited to, changes that will not significantly alter the responsibilities identified in
1 3 this Agreement, and changes to addresses to which notices are to be sent.
14 7. INDEPENDENT CONTRACTOR
1 5 In performance of the work, duties , and obligations assumed by FHA under this
16 Agreement, it is mutually understood and agre ed that FHA, including any and all of FHA's officers,
17 agents, and employees will at all times be acting and performing as an independent contractor, and shall
1 8 act in an independent capacity and not as an officer, agent, servant, employee, joint venturer , partner, or
1 9 as sociate of the COUNTY. Furthermore, COUNTY shall have no right to control or supervise or direct
20 the manner or method by which FHA shall perform its work and function. However, COUNTY shall
2 1 retain the right to administer this Agreement so as to verify that FHA is performing its obligations in
22 accordance with the terms and conditions thereof.
23 FHA and COUNTY shall comply with all applicable provisions of law and the rules and
24 regulations, if any, of governmental authorities having jurisdiction over matters which are directly or
25 indirectly the s ubject of this Agreement.
26 Because of its statu s as an independent contractor, FHA shall have absolutely no right to
27 employment rights and benefits available to COUNTY employees. FHA shall be solely liable and
28 responsible for providing to , or on behalf of, its employees all legally-required employee benefits. In
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addition, FHA shall be solely responsible and hold COUNTY harmless from all matters relating to
payment of FHA's employees, including compliance with Social Security, withholding, and all other
regulations governing such matters. It is acknowledged that during the term of this Agreement, FHA
may be providing services to others unrelated to the COUNTY or to thi s Agreement.
8. NON-ASSIGNMENT
Neither party shall assign, transfer or subcontract this Agreement nor their rights or duties
under this Agreement without the prior written consent of the other party with the exception of an
affiliate or limited partnership within a tax credit transaction.
9. NON-DISCRIMINATION
During the performance of this Agreement FHA shall not unlawfully discriminate against
any employee or applicant for employment, or recipient of services, becau se of race, religion, color,
national origin, ancestry, physical disability, medical condition, marital status, age or gender, pursuant to
all applicable State of Califomi a and Federal statutes and regulations.
10. DISCLOSURE -CRIMINAL HISTORY AND CIVIL ACTIONS
FHA is required to disclose if any of the following conditions apply to them, their
owners, officers, corporate managers and partners:
A. Within the three-year period preceding the Agreement award, they have been
convicted of, or had a civil judgment rendered against them for:
I. Fraud or a criminal offense in connection with obtaining, attempting to
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records; or
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Violation of a federal or state antitrust statute;
Embezzlement, theft, forgery, bribery, falsification, or destruction of
False statements or receipt of stolen property.
B. Within a three-year period preceding this Agreement, they have had a public
transaction terminated for cause or default.
Disclosure of the above information will not automatically e liminate FHA from further
business consideration. The information will be cons idered as part of the determination of whether to
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1 continue and/or renew the contract and any additional information or explanat ion that FHA elects to
2 submit with the disclosed information will be considered. If it is lat er determined that the FHA failed
3 to disclose required information, any contract awarded to FHA may be immediately voided and
4 terminated for material failure to comply with the terms and conditions of the Agreement.
5 11. COMPLAINTS
6 For any complaint associated with this agreement, the F HA shall log such compla int s from a
7 tenant residing at a permanent supportive housing development resulting fi'om this Agreement. FHA
8 shall make avai lable to COUNTY a copy of the comp laint concerning any tenants in a format and
9 timeframe that is mutually agreed upon by both patties . The FHA shall provide details and attach
1 0 documentation of each tenant complaint. The FHA shall post signs at housing developments resulting
11 from this Agreement that informs tenants of their right to file a complaint or grievance w ith the FHA
12 which is a component of the tenant's rights grievance procedure associated with each tenant's formal
13 signed lease with the FHA.
14 12. NOTICES
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The persons have authority to give and receive n otices under this Agreement and their
addresses include the following:
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COUNTY
Director, Fresno County
Department of Behavioral Health
444 1 E. Kings Canyon
Fresno, CA. 93702
Executive Director
Housing Authority of the County of F resno
1331 Fulton Mall
Fresno, CA. 93721
21 Any and all notices between the COUNTY and the FHA provided for or permitted under this
22 Agreement or by law shall be in writ in g and shall be deemed duly served when personally delivered to
23 one of the parties, or in lieu of such personal se rvice , when deposited in the United States Mail , postage
24 prepaid , addressed to such party
25 13. SEVERABILITY
26 The provisions of this Agreement are severabl e. The invalidity or unenforceability of any
27 one provision in the Agreement shall not affect the other provisions.
28 14. HOLD HARMLESS
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1 FHA agrees to indemnifY, save, hold harmless, and at COUNTY's request , defend the
2 COUNTY, its officers , agents and employees from any and all costs and expenses, including attorney
3 fees and court costs, damages, liabilities , claims and losses occurring or resulting to COUNTY in
4 connection with the performance, or failure to perform, by FHA, its officers, agents or employees
5 under this Agreement, and from any and all costs and expenses, including attorney fees and court
6 costs, damages, liabilities, claims and losses occUlTing or resulting to any person, firm or corporation
7 who may be injured or damaged by the performance, or failure to perform, of FHA, its officers, agents
8 or emplo yees under this Agreement. In addition, FHA agrees to indemnifY COUNTY for Federal,
9 State of California and/or local audit exceptions re sulting from noncompliance herein on the part of
10 the FHA.
11 COUNTY agrees to indemnifY, save , hold harmless, and at FHA's reque st, defend the
12 FHA, its officers, agents and employees from any and all costs and expenses, including attorney fees and
13 court costs, damages, liabilities , claims and losses occurring or resulting to FHA in connection with the
1 4 performance , or failure to perform, by COUNTY and/or its officers, agents or employees under this
15 Agreement and from any and all costs and expen ses , including attorney fees and COUlt co sts , damages,
16 liabilities, claims and losses occUlTing or resulting to any person, firm or corporation who may be irtiured
1 7 or dam aged by the performance, or failure to perform, of COUNTY and/or its officers, agents or
1 8 employees under this Agreement. In addition, COUNTY agrees to indemnifY FHA for Federal, State of
1 9 California and /or local audit exceptions re sulting from noncompliance herein on the part of the COUNTY
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15. INSURANCE
Without limiting the COUNTY's right to obtain indemnification from the FHA or any third
parties, FHA, at its sole expense, shall maintain in full force and effect the following insurance
policies or a program of self-insurance, including but not limited to, an in surance pooling an'angement
or Joint Powers MOU (JPA) 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
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policy shall be issued on a per occurrence basis. COUNTY may require specific coverage including
completed operations, product liability, contractual liability, Explosion, Collapse, and Underground
(XCU), fire legal liability or any other liability insurance deemed necessary because of the nature of
the MOU.
B. Automobile Liability
Comprehensive Automobile Liability Insurance with limits of not less than One Million Dollars
($1,000,000) per accident for bodily injury and for property damage. Coverage should include owned
and non-owned vehicles used in connection with this MOU.
C. Professional Liability
The FHA does not anticipate to employ any licensed professional staff (e.g. Ph.D., R.N.,
L.C .S.W., L.M.F.T.) to provide services. But if FHA does employ any licensed professional, FHA will
provide Professional Liability Insurance with limits of not less than One Million Dollars ($1,000 ,000)
per occurrence, Three Million Dollars ($3,000 ,000) annual aggregate.
D. Worker's Coinpensation
A policy of Worker's Compensation Insurance as may be required by the Califomia Labor
Code.
Additional Requirements Relating to Insurance
FHA shall obtain endorsements to the Commercial General Liability insurance naming
the COUNTY, its officers, agents and employees, individually and collectively, as additional insured,
but only insofar as the operations under this Agreement are concerned. Such coverage for additional
insured shall apply as primary insurance and any other insurance , or self-insurance, maintained by the
COUNTY, its officers, agents and employees shall be excess only and not contributing with insurance
provided under the FHA's policies herein. This insurance shall not be cancelled or changed without a
minimum of thirty (30) days advance wTitten notice given to COUNTY.
FHA hereby waives its right to recover from COUNTY, its officers, agents, and
employees any amounts paid by the policy of worker's compensation insurance required by this
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1 Agreement. FHA is solely responsible to obtain any endorsement to such policy that may be necessary
2 to accomplish such waiver of subrogation, but FHA's waiver of subrogation under this paragraph is
3 effective whether or not FHA obtains such an endorsement.
4 Within thirty (30) days from the date FHA signs this Agreement, FHA shall provide
5 certificates of insurance and endorsements as stated above for all of the foregoing policies, as required
6 herein, to the County of Fresno, Department of Behavioral Health, 515 S. Cedar Avenue, Fresno CA.
7 94702, Attention: Staff Analyst -Housing, stating that such insurance coverages have been obtained
8 and are in full force; that the COUNTY, its officers, agents and employees will not be responsible for
9 any premiums on the policies; that for such worker's compensation insurance the FHA has waived its
1 0 right to recover from the COUNTY, its officers, agents, and employees any amounts paid under the
11 insurance policy and that waiver doe s not invalidate the insurance policy; that such Commercial
12 General Liability insurance names the COUNTY, its officers, agents and employees, individually and
1 3 collectively, as additional insured, but only insofar as the operations under this Agreement are
14 concerned; that such coverage for additional insured shall apply as primary insurance and any other
1 5 insurance , or se lf-insurance, maintained by the COUNTY, its officers , agents and employees, shall be
1 6 excess only and not contributing with insurance provided under the FHA's policies herein; and that
17 this insurance shall not be cancelled or changed without a minimum ofthirty (30) days advance,
18 written notice given to COUNTY.
19 In the event FHA fails to keep in effect at all times insurance coverage as herein
20 provided, the COUNTY may, in addition to other remedies it may have , suspend or terminate this
21 Agreement upon the OCCUlTence of such event.
22 All policies shall be with admitted insurers licensed to do bu siness in the State of
23 California. In surance purchased s hall be from comp anie s possessing a current A.M . Best, Inc . rating of
24 A FSC VIII or better.
25 16. CONFIDENTIALITY
26 Any service perfolmed by FHA under this Agreement shall be in strict conformance with all
27 applicable Federal , State of California (including the California Public Records Act) and /or local laws
28 and regulations relating to confidentiality.
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17. HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT
A. The parties to this Agreement shall be in strict conformance with all applicable
4 Federal and State of California law s and regulations , including but not limited t o Sections 5328,
5 10850, and 14100 .2 et seq. of the Welfare and Institutions Code, Sections 2.1 and 431.300 et seq. of
6 Title 42, Code of Federal Regulations (CFR), Section 56 et seq. of the Ca li fornia Civil Code, Sections
7 11977 and 11812 of Title 22 of the California Code of Regulations, and the Health Insurance
8 Portability and Accountabi lit y Act (HIP AA), including but not limited to Section 1320 D e/ seq. of
9 Title 42, United States Code (USC) and its implementing regulati ons , including , but not limited to
10 Title 45 , CFR, Sections 142 , 160, 162 , and 164 , and The Health InfOlmation Technology for
11 Economic and Clinical Health Act (HITECH) regarding the confidentiality and security of patient
1 2 information and the Genetic Information Nondi scrimination Act (GINA) of2008 regarding the
1 3 confidentiality of genetic inform ation.
14 Except as otherwise provided in tlus Agreement, the FHA, as Business Associates of
1 5 COUNTY, may use or disclose Protected Health Information (PHI) to perform functions , activities or
1 6 services for or on behalf of COUNTY, as specified in this Agreement, provided that such use or
1 7 di sclo sure shall not vio late the HIPAA , USC 1320d et s eq. The uses and disclo sures of PHI may not
18 be more expansive than those applicable to COUNTY , as the "Covered Entity" under the HIP AA
1 9 Privacy Rule (45 CFR 164.500 et seq), except as authorized for management , admini strative or legal
20 respon sibilities of the Business Associate.
2 1 B. FHA, including its subconh'actors, agents, and employees, shall protect, from
22 unauthori zed access, use, or disclosure of names and other identifying information concerning persons
23 receiving services pursuant to this Agreement, except where permitted in order to carry out data
24 aggregation purposes for health care operations [45 CFR Sections 164.504 (e)(2)(i), 164.504
25 (3)(2)(ii)(A), and 164 .504 (e)( 4)(i)]. This peltain s to any and all persons receiving services pursuant to
26 a COUNTY funded program. FHA shall not use such identifYing information for any purpose other
27 than carrying out FHA's obligation s under thi s Agreement.
28 C. FHA, including it s subcontractors, agents, and employee s, shall not di sclose any
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1 such identifying information to any person or entity, except as otherwise specifically permitted by this
2 Agreement, authorized by law, or authorized by the client/patient.
3 D. For purposes of the above sections , identifYing information shall include, but not
4 be limited to name, identifYing number, symbol, or other identifying prulicular assigned to the
5 individual, such as finger or voice print, or a photograph.
6 E. For purposes ofthe above sections, genetic information shall include genetic
7 tests offamily members of an individual or individual, manifestation of di sea se or disorder of family
8 members of an individual, or any request for or receipt of, genetic service s by individual or family
9 members. Family member means a dependent or any person who is first, second, third, or foullh
1 0 degree relative. For purposes of the above section s, identifying information shall include, but not be
11 limited to name, identifYing number, symbol , or other identifying prulicular assigned to the individual,
12 such as finger or voice print, or a photograph.
13 F. FHA shall provide access, at the request of COUNTY, and in the time and
14 manner designated by COUNTY , to PHI in a designated record set (as defined in 45 CFR Section
15 164.501), to an individual or to COUNTY in order to meet the requirements of 45 CFR
1 6 Sectionl64.524 regarding acces s by individuals to their PHI.
1 7 FHA shall make any runendment(s) to PHI in a designated record set at the request of
18 COUNTY, and in the time and manner designated by COUNTY in accordance with 45 CFR Section
19 164.526.
20 FHA shall provide to COUNTY or to an individual , in a time and manner de signated by
2 1 COUNTY, information collected in accordance with 45 CFR Section 164.528, to permit COUNTY to
22 respond to a reque st by the individual for an accounting of disclosures of PHI in accordance with 45
23 CFR Section 164.528.
24 G. FHA shall report to COUNTY , in writing, any knowledge or reasonable belief
25 that there ha s been unauthorized access, viewing, use, disclosure, or breach of PI-II not permitted by
26 this MOU, and any breach of unsecured PHI of which it becomes aware, immediately and without
27 reasonable delay and in no case later than two (2) bu s ine ss days of discovery. Immediate notification
28 shall be made to COUNTY 's Information Security Officer and Privacy Officer and COUNTY 's
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1 Department of Behavioral Health HIP AA Representative, within two (2) business days of discovery.
2 The notification shall include, to the extent possible, the identification of each individual whose
3 unsecured PHI has been, or is reasonably believed to have been, accessed , acquired, used, disclosed, or
4 breached. FHA shall take prompt corrective action to cure any deficiencies and any action pertaining
5 to such unauthorized disclosure required by applicable Federal and State Laws and regulations. FHA
6 shall investigate such breach and is responsible for all notifications required by law and regulation or
7 deemed necessary by COUNTY and shall provide a written report of the investigation and reporting
8 required to COUNTY's Infotmation Security Officer and Privacy Officer and COUNTY's Depattment
9 of Behavioral Health HIPAA Representative. This written investigation and description of any
10 reporting necessary shall be postmarked within the thirty (30) working days of the discovery of the
11 breach to the addresses below:
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County of Fresno
Dept. of Behavioral Health
HIPAA Representative
(559) 600-9180
4441 E. Kings Canyon
Fresno, CA 93702
County of Fresno
Dept. of Public Health
Privacy Officer
(559) 600-3200
1221 Fulton Mall
Fresno, CA 93728
County of Fresno
Information Technology Services
Information Security Officer
(559) 600-5800
2048 N. Fine Street
Fresno, CA 93727 15
16 H. FHA shall make its internal practices, books, and records relating to the use and
17 disclosure of PHI r eceived from COUNTY, or created or received by the FHA on behalf of COUNTY,
18 available to the United States Department of Health and Human Services upon demand.
19 I. Safeguat'ds
20 FHA shall implement administrative, physical, and technical safeguards as
21 required by 45 CFR 164.308, 164.310, and 164.312 that reasonably and appropriately protect the
22 confidentiality, integrity, and availability of PHI, including electronic PHI, that it creates, receives ,
23 maintains or transmits on behalf of COUNTY; and to prevent access, use or disclosure of PHI other
24 than as provided for by this MOU. FHA shall develop and maintain a written infOlmation privacy and
25 security program that includes administrative, technical and physical safeguards appropriate to the size
26 and complexity of FHA's operations and the nature and scope of its activitie s . Upon COUNTY's
27 request, FHA shall provide COUNTY with information concerning such safeguards.
28 FHA shall implement strong access controls and other security safeguards and
2281206vl I 18621 .0001 -14 -DBH & FHA MOU -HeD NPLH
1 precautions in order to restrict lo g ical a nd p h ys i ca l access to confidential, perso nal (e.g ., PHI) or
2 sens itive dat a to authoriz ed users only. Said safeguards and precautions s hall include the following
3 ad minis trative and t ec hnical p assword control s for all sys tems used to process or s tore confidential,
4 personal , or sens itive data:
5 1. Password s mu st not be:
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a. Share d or written down where they are access ible or recog ni zable
by anyone e l se; such as tap ed to computer sc re ens, stored under keyboards, or vi s ible in a work area;
b. A dictionary word; or
c. Store d in clear text
2 . Passwords mu s t be:
a . E ight (8) characters or more in length;
b. Changed every ninety (90) days;
c. Changed immediately ifrevealed or compromised; and
d. Composed of characters from at least three of the fo ll owing four
groups from the standard keyboard:
1)
2)
3)
4)
Upper case letters (A-Z);
Lowercase letters (a-z );
Arabic numerals (0 through 9); and
Non-alphanumeric characters (p unc tu ation symbols).
FHA shall implement the fo ll owing security control s on each workstation or
portable computing device (e.g., laptop computer) containing confidential, pers onal , or sensitive data:
1. Network-based firewall and/or personal firewall;
2. Continuously updated anti-virus software; and
3. Patch management process including in s tallation of all operating
system/software vendor security patches.
FHA shall utili ze a commercial encryption soluti on that has received FIPS 140-2
va lid ation to encrypt all confidential , personal , or sen s itive data stored on portable electronic media
(including, but not limited to , compact disks and thumb drives) and on portable computing d ev ices
22B1206v1 I 1B621 .0001 . 15 • DBH & F HA MOU -HC D NPLH
1 (including, but not limited to, laptop and notebook computers).
2 FHA shall not transmit confidential, personal, or sensitive data via e-mail or
3 other internet transport protocol unless the data is encrypted by a solution that has been validated by
4 the National Institute of Standards and Technology (NIST) as conforming to the Advanced Encryption
5 Standard (AES) Algorithm.
6 J. Mitigation of Harmful Effects
7 FHA shall mitigate , to the extent practicable,
8 any harmful effect that is known to FHA of an unauthorized access, viewing , use , disclosure , or breach
9 of PHI by FHA or its subcontractors in violation of the requirements of these provi s ions .
10 K. FHA's Subcontractors
11 FHA shall ensure that any of its contractors, including subcontractors, if
12 applicable, to whom FHA provides PHI received from or created or received by FHA on behalf of
13 COUNTY, agree to the same restrictions and conditions that apply to FHA with respect to such PHI;
1 4 and to incorporate, when applicable, the relevant provisions of these provisions into each subcontract
15 or sub-award to such agents or subcontractors .
16 L. Employee Training and Di scipline
17 FHA shall train and use reasonable measures to ensure compli ance with the
18 requirements of these provisions by employees who ass ist in the performance of function s or activities
19 on behalf of COUNTY under this Agreement and u se or disclose PHI and discipline such employees
20 who intentionally violate any provisions of these provisions, including termination of employment.
2 1 M. Tetmination for Cause
22 Upon the knowledge by any party of a material breach of these provisions by one
23 of the other patties, the affected party shall either:
24 I. Provide an oppottunity for the party that cau sed the breach to cure the
25 breach or end the violation and terminate thi s Agreement if that party does not cure the breach or end
26 the violation within the time specified by the affected party; or
27 2. Immediately terminate this Agreement if any party has breached a
28 material term of these provisions and cure is not possible.
2281206vl / 18621 .0001 -16 -DBH & FHA MOU -HCD NPLH
1 3. If neither cure nor termination is feasible, the COUNTY Privacy Officer
2 or the FHA designee(s) shall repOli the violation to the Secretary ofthe U.S. Department of Health and
3 Human Services.
4 N. Judicial or Administrative Proceedings
5 Any party may terminate this Agreement in accordance with the telms and
6 conditions of this Agreement as written hereinabove, if: (1) Any party is found guilty in a criminal
7 proceeding for a violation of the HIP AA Privacy or Security Laws or the HITECH Act; or (2) a
8 finding or stipulation that COUNTY or FHA has violated a privacy or security standard or requirement
9 of the HITECH Act, HIP AA; or other security or privacy laws in an administrative or civil proceeding
10 in which COUNTY and FHA is a party.
1 1 O. Effect of Termination
12 Upon termination or expiration of this MOU for any reason, FHA shall return or
13 destroy all PHI received from COUNTY (or created or received by FHA on behalf of COUNTY) that
14 FHA still maintain in any form, and shall retain no copies of such PHI. If return or destruction of PHI
15 is not feasible, FHA shall continue to extend the protections ofthese provisions to such information,
16 and limit further use of such PHI to those purposes that make the return or destruction of such PHI
17 infeasible. This provision shall apply to PHI that is in the possession of subcontractors or agents, if
18 applicable, of FHA. If FHA destroy the PHI data, a certification of date and time of destruction shall
19 be provided to the COUNTY by FHA.
20 P. Disclaimer
21 COUNTY makes no warranty or representation that compliance by FHA with
22 these provisions, the HITECH Act, HIP AA or the HIPAA regulations will be adequate or satisfactory
23 for FHA's own purposes or that any information in FHA's possession or control, or transmitted or
24 received by FHA, is or will be secure from unauthorized access, viewing, use, disclosure, or breach.
25 FHA is so lely responsible for all decisions made by FHA regarding the safeguarding of PHI.
26 Q. Amendment
2 7 The parties acknowledge that Federal and State laws relating to electronic data
28 security and privacy are rapidly evolving and that amendment of these provisions may be required to
2281206v l / 18621 .000 1 -17 -DBH & FHA MOU -HeD NPLH
1 provide for procedures to ensure compliance with such developments. The parties specifically agree
2 to take such action as is necessary to amend this Agreement in order to implement the standards and
3 requirements of HIP AA , the HIP AA regulations, the HITECH Act and other applicable laws relating
4 to the security or privacy of PHI. COUNTY may terminate this Agreement upon thi11y (30) days
5 written notice in the event that FHA do not enter into an amendment providing assurances regarding
6 the safeguarding of PHI that COUNTY in its sole di scretion deems sufficient to satisfy the standards
7 and requirements ofHIPAA, the HIPAA regulations and the HITECH Act.
8 R. No Third-Party Beneficiaries
9 Nothing express or implied in the terms and conditions ofthese provisions is
1 0 intended to confer, nor shall anything herein confer, upon any person other than COUNTY or FHA
11 and their respective successors or as signees, any rights, remedies, obligations or liabilities whatsoever.
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S. Interpretation
The terms and conditions in these provisions shall be interpreted as broadly as
necessary to implement and comply with HIPAA, the HIPAA regulations and applicable State laws.
The pru1ies 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 HIPAA and the HIPAA regulations.
T. Regulatory References
A reference in the terms and conditions of these provi sions to a section in the
HIP AA regulations means the section as in effect or as amended.
U. Survival
The respective rights and obligations of FHA as stated in this Section shall
survive the termination or expiration of this Agreement.
V. No Waiver of Obligations
No change, waiver or discharge of any liability or obligation hereunder on any
one or more occasions shall be deemed a waiver of performance of any continuing or other obligation,
or shall prohibit enforcement of any obligation on any other occasion.
II
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18. DATA SECURITY
3 For the purpose of preventing the potential loss, misappropriation or inadve11ent access,
4 viewing, use or disclosure of COUNTY data including sensitive or personal client information; abuse
5 of COUNTY resources; andlor di sruption to COUNTY operations, individuals and l or agencies that
6 enter into a contractual relationship with the COUNTY for the purpose of providing services under
7 thi s Agreement must employ adequate data security measures to protect the confidential information
8 provided to FHA by the COUNTY, including but not limited to the following:
9 A. FHA-Owned Mobile, Wireless, or Handheld Devices
10 FHA may not connect to COUNTY networks via personally-owned mobile,
11 wirele ss or handheld device s , unless the following conditions ar e met:
12 1) FHA has received authori zation by COUNTY for telecommuting
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1 7 B.
2)
3)
4)
purpo ses;
CUlTent virus protection software is in place;
Mobile device has the remote wipe feature enabled; and
A secure connection is used.
FHA-Owned Computers or Computer Peripherals
1 8 FHA may not bring FHA-owned computers or computer peripherals into the
19 COUNTY for use without prior authorization from the COUNTY 's ChiefInformation Officer, and l or
20 designee(s), including but not limited to mobile storage devices. If data is approved to be transfelTed,
21 data must be stored on a secure server approved by the COUNTY and transfelTed by means of a
22 Virtual Private Network (VPN) connection, or another type of secure connection. Said data mu st be
23 encrypted.
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c. COUNTY-Owned Computer Equipment
FHA or anyone having an employment relation ship with the COUNTY may not
26 use COUNTY computers or computer peripherals on non-COUNTY premises without prior
27 authorization £i'om the COUNTY 's ChiefInformation Officer , andlor designee(s).
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1 D. FHA may not store COUNTY's private, confidential or sensitive data on any
2 hard-disk drive , portable storage device, or remote storage in stallation unless encrypted.
3 E. FHA shall be respon sible to employ strict controls to ensure the integrity and
4 security of COUNTY's confidential information and to prevent unauthorized access, viewing , use or
5 disclosure of data maintained in computer files, program documentation, data processing system s, data
6 files and data processing equipment which stores or processes COUNTY data internally and
7 externally.
8 F. Confidential client infolmation transmitted to one party by the other by means of
9 electronic transmissions must be encrypted according to Advanced Encryption Standards (AES) of
10 128 BIT or higher. Additionally, a password or pass phrase must be utilized.
11 G. FHA is responsible to immediately notify COUNTY of any violations, breaches
12 or potential breaches of security related to COUNTY 's confidential information, data maintained in
1 3 computer files, program documentation, data processing systems , data files and data processing
14 equipment which stores or processes COUNTY data internally or externally.
15 H. COUNTY shall provide oversight to FHA 's response to all incidents arising from a
1 6 possible breach of security related to COUNTY's confidential client information provided to FHA. The
17 FHA will be responsible to issue any notification to affected individuals as required by law or as deemed
1 8 nece s sary by COUNTY in its sole discretion. FHA will be responsible for all costs incurred as a result of
19 providing the required notification.
20 19. AUDITS AND INSPECTIONS
21 The FHA shall at any time during business hours, and as often as the COUNTY may deem
22 nece ssary, make available to the COUNTY for examination all of its records and data with respect to the
23 matters covered by this Agreement. The FHA shall, upon request by the COUNTY, permit the
24 COUNTY to audit and inspect all such records and data necessary to ensure the FHA's compliance with
2 5 the telms of this Agreement.
26 The COUNTY shall at any time during business hours, and as often as the FHA may deem
2 7 nece ssary, make available to the FHA for examination all of its records and data with respect to the
28 matters covered by this Agreement. The COUNTY shall, upon request by the FHA , permit the FHA to
2281206vl / 18621 .0001 ·20· DBH & FH A MOU -HCD NPLH
1 audit and inspect all such records and data necessary to ensure the COUNTY's compliance with the terms
2 of this Agreement.
3 If this Agreement exceeds ten thousand dollars ($10,000.00), CONTRACTOR shall be
4 subject to the examination and audit of the Auditor General for a period of tiu-ee (3) years after final
5 payment under contract (Government Code Section 8546 .7).
6 20. DISCLOSURE OF SELF -DEALING TRANSACTIONS
7 Only applicable if the FHA is operating as a corporation (a for-profit or non-profit
8 corporation) or the FHA changes its status to operate as a corporation during this agreement.
9 Members of the FHA's Board of Directors shall disclose any self-dealing transactions that
10 they are a patty to while the FHA is providing goods or performing services under this agreement. A self-
1 1 dealing transaction shall mean a transaction to which the FHA is a patty and in which one or more of its
12 directors has a material financial interest. Members ofthe FHA Board of Directors shall di sclose any self-
13 dealing transactions that they are a party to by completing and signing a Self-Dealing Transaction
1 4 Disclosure Form (Exhibit A) and submitting it to the COUNTY prior to commencing with the self-dealing
1 5 transaction or immediately thereafter.
16 21. NON-EXCLUSIVE AGREEMENT
17 No provisions of this Agreement shall preclude COUNTY from entering into other
18 agreementslMOU's with other parties for suppOltive housing related programs and services.
19 22. GOVERNING LAWS
20 The parties agree that for the purposes of venue , perfOlmance under this Agreement is to
21 be in Fresno County , California.
22 The rights and obligations of the pru.ties and all interpretation and performance of this
23 Agreement shall be governed in all respects by the laws of the State of California.
2 4 24. ENTIRE AGREEMENT
25 This Agreement and all exhibits con stitute s the entire Agreement between the FHA and
26 COUNTY with respect to the subject matter hereof and supersedes all previous Agreements
27 negotiations, propo sals, commitments, writings, advertisements, publications, and understandings of
2 8 any nature whatsoever unless expressly included in this Agreement.
2281206vl I 1862 1 .0001 - 2 t -D8H & FHA MOV -HCD NPLH
1
2 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
3 day and year first hereinabove written.
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FRESNO HOUSING AUTHORITY
By: ~r;z;-'---------"--2--_
Print Name: J{&n.,,i ~Wl( C,
Title: Executive Director
Date: _I_-_Z_2--_l___,_~--
By:------------
Print Name:
Title:
-----------
-------------
Secretary of Corporation, or
Any Assistant Secretary, or
Chief Financial Officer, or
Any Assistant Treasurer
M a iling Address:
Fresno Housing Authority
1331 Fulton Street
Fresno, CA. 93721
Phone No.: (559) 443-8400
Contact: Executive Director
2281206vl / 1 862 1.0001 -22-
COUNTY OF FRESNO
By:
Nathan Magsig, Chairman of the Board of
Supervisors of the County of Fresno
A TTEST:
Bernice E. Se i del
Clerk of the Board of Supervisors
County of Fresno, State of California
By: ~L·r5°=
Date: 'J0-1\u.o 't JS\, lG iczt
Fund:
Organization:
Account:
0001/10000
56304710
7295
DBH & FHA MOU -HCD NPLH