HomeMy WebLinkAboutAgreement A-19-374 with UPholdings.pdf
DBH & UPHOLDINGS MOU – HCD NPLH - 2 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
NOW, THEREFORE, in consideration of the recitals set forth above, which are incorporated
herein by this reference, and the mutual covenants and undertakings contained herein, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. PURPOSE
The COUNTY and UPholdings desire to develop, operate and maintain permanent supportive
housing opportunities in accordance with permanent supportive housing funding source program
guidelines and regulations. To do so, the COUNTY and UPholdings will research and pursue permanent
supportive housing development opportunities.
2. RESPONSIBILITIES
A. UPholdings shall be responsible to:
(1) Under the direction of COUNTY, prepare any future, agreed upon HCD
NPLH, or other permanent supportive housing funding sources, permanent supportive housing
Application(s). The HCD NPLH permanent supportive housing Application, or any additional permanent
supportive housing Applications would include UPholdings as the developer, property manager and
owner. H owever, any role or responsibility of UPholdings in the development of any permanent
supportive housing program Application related to this MOU shall be determined by COUNTY.
Notwithstanding the aforementioned term, UPholdings shall be permitted to develop other permanent
supportive housing projects, without the consent of the CO UNTY or in partnership with the COUNTY,
when such projects do not require a financing source predicated on the COUNTY being a co-applicant or
sponsor of such financing. Any permanent supportive housing Application mutually agreed upon by
both DBH and UPholdings, to be completed by UPholdings in the role of development sponsor / co-
applicant with COUNTY, shall be approved by the COUNTY and such approval shall not be
unreasonably withheld. Any prepared Application(s) by UPholdings as COUNTY’S development
sponsor / co-applicant shall comply with all state fair housing laws, regulations and directives as required
by the identified funding source. As part of any permanent supportive housing program Application,
both COUNTY and UPholdings shall research and identify potential development sites to be funded with
HCD NPLH or other applicable funding sources or identify other funding sources that can be utilized
and/or leveraged to provide for the development of permanent supportive housing units.
DBH & UPHOLDINGS MOU – HCD NPLH - 3 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(2) Maintain supportive housing resource information for use by individuals
housed, family members and/or support systems of individuals and supportive services staff to assist in
the identification and utilization of appropriate supportive housing resources in the community.
(3) Make reasonable efforts to complete all program-reporting requirements
specific to each fu nding source for any permanent supportive housing developments resulting from this
MOU.
(4) Provide property management services, either directly or through a
subcontract with a qualified organization, for permanent supportive housing projects developed as a
result of this MOU. Services may include, but not be limited to rent collection, property maintenance and
repairs.
B. The COUNTY shall be responsible to:
(1) Assign appropriate staff to participate in the planning and permanent
supportive housing development process with the UPholdings.
(2) Provide timely consideration of all permanent supportive housing
Applications presented by the UPholdings.
(3) Report required permanent supportive housing program information to the
State of California HCD, and any other identified funding sources, as related to any permanent supportive
housing developments as a result of this MOU.
(4) Upon request from UPholdings, provide all necessary or relevant
demographic information regarding the specified target populations to be served by permanent supporti ve
housing developments as a result of this MOU.
(5) Ensure an adequate number of eligible, certified tenant referrals made to
permanent supportive housing projects developed by the UPholdings under this MOU. Such referrals
must meet the tenant eligibility requirements established for any given permanent supportive housing
development as mandated by the funding source target population definition and as determined by Fresno
County’s Behavioral Health Director or designee, or by other funding sources, as applicable.
(6) Ensure the commitment and coordination of the appropriate level of case
management or other types of supportive services are available on a timely basis to meet the behavioral
DBH & UPHOLDINGS MOU – HCD NPLH - 4 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
health needs for individuals of any permanent supportive housing projects developed under this MOU.
These services will be voluntary and flexible and meet the needs as determined by the individuals.
C. In collaboration, both COUNTY and UPholdings shall be responsible to:
(1) No less than quarterly, representatives from COUNTY, UPholdings and
other interested and invited participants will meet to discuss any potential new development projects,
review any previous work accomplished and assess the working relationship between all parties. The
COUNTY and UPholdings shall mutually agree upon the location of the permanent supportive housing
developments proposed for permanent supportive housing program Applications.
(2) In the event a permanent supportive housing Application is completed by
UPholdings, that it be appropriately submitted to the applicable funding source and meet all legal
requirements, including the provisions of Welfare and Institutions Code Sections 5847 and 5848
regarding postings and 30-day public comment requirement (W&I Code 5848(b)). Additionally, if a
permanent supportive housing Application is completed and submitted to a funding source, ensure all
appropriate parties are informed of the submittal, including the Fresno County Behavioral Health Board
and Fresno County Board of Supervisors.
(3) In the event a permanent supportive housing Application is funded, County
and UPholdings shall work collaboratively to ensure all necessary documents, including any other MOUs
as required by the funding source, are executed to establish the role of the UPholdings as the qualified
developer/borrower/property manager or any combination thereof, and to establish the role of the
COUNTY as the mental health supportive service provider, for any funded permanent supportive housing
development.
3. TERM
This MOU shall commence July 1, 2019, and shall terminate on the 30th day of June
2022. This MOU may be extended for two (2) additional consecutive twelve (12) month periods; July 1,
2022 through June 30, 2023 and July 1, 2023 through June 30, 2024, upon the written approval of both
parties no later than sixty (60) days prior to the first day of the next twelve (12) month extension period.
The Department of Behavioral Health ("DBH") Director or his/her designee is authorized to execute
such written approval on behalf of COUNTY based upon UPholdings satisfactory performance.
DBH & UPHOLDINGS MOU – HCD NPLH - 5 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4. TERMINATION
A. Breach of Contract
Either party may immediately suspend or terminate this MOU in whole or in
part, where in the determination by one of the parties there is:
1. An illegal or improper use of funds;
2. A failure to comply with any term of this MOU;
3. A substantially incorrect or incomplete report submitted to the
COUNTY; or
4. Improperly performed service.
B. Without Cause
This MOU may be terminated by either of the parties as to their involvement in
this MOU, upon the giving of a thirty (30) day advance written notice of an intention to terminate from
one party to the other.
5. COMPENSATION
The services performed in accordance with the terms and conditions as stated in this
MOU shall be performed without any monetary compensation by either party, with exception to any
compensation that may be payable to either party in relation to the develop ment of a specific project, or
the proceeds therefrom, whether from such money is payable as a fee, project cash flow, the result of a
refinancing, or transaction of a similar nature.
6. MODIFICATION
Any matters of this MOU may be modified from time to time by the written consent of all
the parties without, in any way, affecting the remainder.
Notwithstanding the above, minor changes, as determined by COUNTY’s Department
of Behavioral Health Director or his or her designee may be made with the written approval of
COUNTY’s Department of Behavioral Health Director or designee and UPholdings. Minor changes
may include, but are not limited to, changes that will not significantly alter the responsibilities
identified in this MOU, and changes to addresses to which notices are to be sent.
DBH & UPHOLDINGS MOU – HCD NPLH - 6 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7. INDEPENDENT CONTRACTOR
In performance of the work, duties, and obligations assumed by UPholdings under this
MOU, it is mutually understood and agreed that UPholdings, including any and all of UPholdings
officers, agents, and employees will at all times be acting and performing as an independent contractor,
and shall act in an independent capacity and not as an officer, agent, servant, employee, joint venturer,
partner, or associate of the COUNTY. Furthermore, COUNTY shall have no right to control or supervise
or direct the manner or method by which UPholdings shall perform its work and function. However,
COUNTY shall retain the right to administer this MOU so as to verify that UPholdings is performing its
obligations in accordance with the terms and conditions thereof.
UPholdings and COUNTY shall comply with all applicable provisions of law and the
rules and regulations, if any, of governmental authorities having jurisdiction over matters which are
dir ectly or indirectly the subject of this MOU.
Because of its status as an independent contractor, UPholdings shall have absolutely no
right to employment rights and benefits available to COUNTY employees. UPholdings shall be solely
liable and responsible for providing to, or on behalf of, its employees all legally-required employee
benefits. In addition, UPholdings shall be solely responsible and hold COUNTY harmless from all
matters relating to payment of UPholdings employees, including compliance with Social Security,
withholding, and all other regulations governing such matters. It is acknowledged that during the term of
this MOU, UPholdings may be providing services to others unrelated to the COUNTY or to this MOU.
8. ASSIGNMENT RIGHTS
Neither party shall assign, transfer or subcontract this MOU nor their rights or duties
under this MOU without the prior written consent of the other party with the exception of an affiliate or
limited partnership within a tax credit transaction. Notwithstanding the aforementioned, UPholdings may
assign its rights, obligations, and interest in this MOU to any entity it wholly owns or controls without the
consent of the County. Any transferee, assignee, or subcontractor will be subject to all applicable
provisions of this Agreement, and all applicable State and Federal regulations. UPholdings will be
required to assume full responsibility for all services and activities covered by this Agreement, whether
or not UPholdings is providing those services directly. Further, COUNTY will consider UPholdings to
DBH & UPHOLDINGS MOU – HCD NPLH - 7 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
be the sole point of contact with regard to contractual matters, including payment of any and all charges
to subcontractor resulting from this Agreement. Any subcontractor utilized by UPholdings to fulfill t he
Responsibilities of UPholdings shall be subject to the same terms and conditions that UPholdings is
subject to under this Agreement.
9. NON-DISCRIMINATION
During the performance of this MOU UPholdings shall not unlawfully discriminate
against any employee or applicant for employment, or recipient of services, because of race, religion,
color, national origin, ancestry, physical disability, medical condition, marital status, age or gender,
pursuant to all applicable State of California and Federal s tatutes and regulations.
10. DISCLOSURE – CRIMINAL HISTORY AND CIVIL ACTIONS
UPholdings 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 MOU award, they have been
convicted of, or had a civil judgment rendered against them for:
1. Fraud or a criminal offense in connection with obtaining, attempting to
obtain, or performing a public transaction or c ontract under a public transaction;
2. Violation of a federal or state antitrust statute;
3. Embezzlement, theft, forgery, bribery, falsification, or destruction of
records; or
4. False statements or receipt of stolen property.
B. Within a three-year period preceding this MOU, they have had a public
transaction terminated for cause or default.
Disclosure of the above information will not automatically eliminate UPholdings from
further business consideration. The information will be consid ered as part of the determination of
whether to continue and/or renew the MOU and any additional information or explanation that
UPholdings elects to submit with the disclosed information will be considered. If it is later
determined the UPholdings failed to disclose required informatio n, any MOU awarded to UPholdings
DBH & UPHOLDINGS MOU – HCD NPLH - 8 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
may be immediately voided and terminated for material failure to comply with the terms and
conditions of the MOU.
11. COMPLAINTS
For any complaint from tenants residing in a multifamily project developed in accordance with
this MOU, UPholdings shall log such complaints. UPholdings shall make available to COUNTY a copy
of the complaint concerning any tenants in a format and timeframe that is mutually agreed upon by both
parties. UPholdings shall provide details and attach documentation of each tenant complaint.
UPholdings shall post signs at permanent supportive housing developments resulting from this MOU
that informs tenants of their right to file a complaint or grievance with the UPholdings which is a
component of the tenant’s rights grievanc e procedure associated with each tenant’s formal signed lease
with the UPholdings.
12. NOTICES
The persons have authority to give and receive notices under this MOU and their
addresses include the following:
COUNTY UPHOLDINGS
Director, Fresno County Jessica Berzac
Department of Behavioral Health UPholdings
4441 E. Kings Canyon 900 W. Jackson Blvd., Suite #2W
Fresno, CA. 93702 Chicago, IL 60607
Any and all notices between the COUNTY and the UPholdings provided for or permitted under
this MOU or by law shall be in writing and shall be deemed duly served when personally d elivered to one
of the parties, or in lieu of such personal service, when deposited in the United States Mail, postage
prepaid, addressed to such party
13. SEVERABILITY
The provisions of this MOU are severable. The invalidity or unenforceability of any one
provision in the MOU shall not affect the other provisions.
14. HOLD HARMLESS
UPholdings agrees to indemnify, save, hold harmless, and at COUNTY’s request,
defend the COUNTY, its officers, agents and employees from any and all costs and expenses,
DBH & UPHOLDINGS MOU – HCD NPLH - 9 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
including attorney fees and court costs, damages, liabilities, claims and losses occurring or resulting to
COUNTY in connection with the performance, or fa ilure to perform, by UPholdings, its officers,
agents or employees under this MOU, and from any and all costs and expenses, including attorney
fees and court costs, damages, liabilities, claims and losses occurring or resulting to any person, firm
or corporation who may be injured or damaged by the performance, or failure to perform, of
UPholdings, its officers, agents or employees under this MOU. In addition, UPholdings agrees to
indemnify COUNTY for Federal, State of California and/or local audit exceptions resulting from
noncompliance herein on the part of the UPholdings.
COUNTY agrees to indemnify, save, hold harmless, and at UPholdings request, defend
UPholdings, its officers, agents and employees from any and all costs and expenses, including attorne y
fees and court costs, damages, liabilities, claims and losses occurring or resulting to UPholdings in
connection with the performance, or failure to perform, by COUNTY and/or its officers, agents or
employees under this MOU and from any and all costs and expenses, including attorney fees and court
costs, damages, liabilities, claims and losses occurring or resulting to any person, firm or corporation who
may be injured or damaged by the performance, or failure to perform, of COUNTY and/or its officers,
agents or employees under this MOU. In addition, COUNTY agrees to indemnify UPholdings for
Federal, State of California and/or local audit exceptions resulting from noncompliance herein on the part
of the COUNTY and/or its contracted providers.
15. INSURANCE
Without limiting the COUNTY’s right to obtain indemnification from UPholdings or any third
parties, UPholdings, at its sole expense, shall maintain in full force and effect the following insurance
policies or a program of self-insurance, including but not limited to, an insurance pooling arrangement
or Joint Powers MOU (JPA) throughout the term of this MOU:
A. Commercial General Liability
Commercial General Liability Insurance with limits of not less than One Million Dollars
($1,000,000) per occurrence and an annual aggregate of Two Million Dollars ($2,000,000). This
policy shall be issued on a per occurrence basis and can be achieved by an umbrella insurance policy.
DBH & UPHOLDINGS MOU – HCD NPLH - 10 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
COUNTY may require specific coverage including completed ope rations, 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
UPholdings 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 UPholdings does employ any licensed professional,
UPholdings 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 Compensation
A policy of Worker's Compensation Insurance as ma y be required by the California Labor
Code.
Additional Requirements Relating to Insurance
UPholdings 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 MOU 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 a nd employees shall be excess only and not
contributing with insurance provided under the UPholdings policies herein. This insurance shall not
be cancelled or changed without a minimum of thirty (30) days advance written notice given to
COUNTY.
UPholdings 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 MOU.
DBH & UPHOLDINGS MOU – HCD NPLH - 11 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UPholdings is solely responsible to obtain any endorsement to such policy that may be necessary to
accomplish such waiver of subrogation, but UPholdings waiver of subrogation under this paragraph is
effective whether or not UPholdings obtains such an endorsement.
Within thirty (30) days from the date UPholdings signs this MOU, UPholdings shall
provide certificates of insurance and endorsements as stated above for all of the foregoing policies, as
required herein, to the County of Fresno, Department of Behavioral Health, 515 S. Cedar Avenue,
Fresno CA. 94702, Attention: Staff Analyst - Housing, stating that such insurance coverages have
been obtained and are in full force; that the COUNTY, its officers, agents and employees will not be
responsible for any premiums on the policies; that for such worker’s compensation insurance
UPholdings has waived its right to recover from the COUNTY, its officers, agents, and employees any
amounts paid under the insurance policy and that waiver does not invalidate the insurance policy; that
such Commercial General Liability insurance names the COUNTY, its officers, agents and employees,
individually and collectively, as additional insured, but only insofar as the operations under this MOU
are concerned; that 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 pro vided under UPholdings policies herein;
and that this insurance shall not be cancelled or changed without a minimum of thirty (30) days
advance, written notice given to COUNTY.
In the event UPholdings fails to keep in effect at all times insurance coverage as herein
provided, the COUNTY may, in addition to other remedies it may have, suspend or terminate this
MOU upon the occurrence of such event.
All policies shall be with admitted insurers licensed to do business in the State of
California. Insurance purchased shall be from companies possessing a current A.M. Best, Inc. rating of
A FSC VIII or better.
16. CONFIDENTIALITY
Any service performed by UPholdings under this MOU shall be in strict conformance with all
applicable Federal, State of California (including the California Public Records Act) and/or local laws
and regulations relating to confidentiality.
DBH & UPHOLDINGS MOU – HCD NPLH - 12 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
17. HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT
A. The parties to this MOU shall be in strict conformance with all applicable
Federal and State of California laws and regulations, including but not limited to Sections 5328,
10850, and 14100.2 et seq. of the Welfare and Institutions Code, Sections 2.1 and 431.300 et seq. of
Title 42, Code of Federal Regulations (CFR), Section 56 et seq. of the California Civil Code, Sections
11977 and 11812 of Title 22 of the California Code of Regulations, and the Health Insurance
Portability and Accountability Act (HIPAA), including but not limit ed to Section 1320 D et seq. of
Title 42, United States Code (USC) and its implementing regulations, including, but not limited to
Title 45, CFR, Sections 142, 160, 162, and 164, and The Health Information Technology for
Economic and Clinical Health Act (H ITECH) regarding the confidentiality and security of patient
information and the Genetic Information Nondiscrimination Act (GINA) of 2008 regarding the
confidentiality of genetic information.
Except as otherwise provided in this MOU, UPholdings, as Business Associates of
COUNTY, may use or disclose Protected Health Information (PHI) to perform functions, activities or
services for or on behalf of COUNTY, as specified in this MOU, provided that such use or disclosure
shall not violate the HIPAA, USC 1320d et seq. The uses and disclosures of PHI may not be more
expansive than those applicable to COUNTY, as the “Covered Entity” under the HIPAA Privacy Rule
(45 CFR 164.500 et seq), except as authorized for management, administrative or legal responsibilities
of the Business Associate.
B. UPholdings, including its subcontractors, agents, and employees, shall protect,
from unauthorized access, use, or disclosure of names and other identifying information concerning
persons receiving services pursuant to this MOU, except where permitted in order to carry out data
aggregation purposes for health care operations [45 CFR Sections 164.504 (e)(2)(i), 164.504
(3)(2)(ii)(A), and 164.504 (e)(4)(i)]. This pertains to any and all persons receiving services pursuant to
a COUNTY funded program. UPholdings shall not use such identifying information for any purpose
other than carrying out UPholdings obligations under this MOU.
C. UPholdings, including its subcontractors, agents, and employees, shall not
disclose any such identifying information to any person or entity, except as otherwise specifically
DBH & UPHOLDINGS MOU – HCD NPLH - 13 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
permitted by this MOU, authorized by law, or authorized by the client/patient.
D. For purposes of the above sections, identifying information shall include, but not
be limited to name, identifying number, symbol, or other identifying particular assigned to the
individual, such as finger or voice print, or a photograph.
E. For purposes of the above sections, genetic information shall include genetic
tests of family members of an individual or individual, manifestation of disease or disorder of family
members of an individual, or any request for or receipt of, genetic services by individual or family
members. Family member means a dependent or any person who is first, second, third, or fourth
degree relative. For purposes of the above sections, identifying information shall include, but not be
limited to name, identifying number, symbol, or other identifying particular assigned to the individual,
such as finger or voice print, or a photograph.
F. UPholdings shall provide access, at the request of COUNTY, and in the time and
manner designated by COUNTY, to PHI in a designated record set (as defined in 45 CFR Section
164.501), to an individual or to COUNTY in order to meet the requirements of 45 CFR
Section164.524 regarding access by individuals to their PHI.
UPholdings shall make any amendment(s) to PHI in a designated record set at the
request of COUNTY, and in the time and manner designated by COUNTY in accordance with 45 CFR
Section 164.526.
UPholdings shall provide to COUNTY or to an individual, in a time and manner
designated by COUNTY, information collected in accordance with 45 CFR Section 164.528, to permit
COUNTY to respond to a request by the individual for an accounting of disclosures of PHI in
accordance with 45 CFR Section 164.528.
G. UPholdings shall report to COUNTY, in writing, any knowledge or reasonable
belief that there has been unauthorized access, viewing, use, disclosure, or breach of PHI not permitted
by this MOU, and any breach of unsecured PHI of which it becomes aware, immediately and without
reasonable delay and in no case later than two (2) business days of discovery. Immediate notification
shall be made to COUNTY’s Information Security Officer and Privacy Officer and COUNTY’s
Department of Behavioral Health HIPAA Representative, within two (2) business days of discovery.
DBH & UPHOLDINGS MOU – HCD NPLH - 14 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The notification shall include, to the extent possible, the identification of each individual whose
unsecured PHI has been, or is reasonably believed to ha ve been, accessed, acquired, used, disclosed, or
breached. UPholdings 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. UPholdings shall investigate such breach and is responsible for all notifications required
by law and regulation or deemed necessary by COUNTY and shall provide a written report of the
investigation and reporting required to COUNTY’s Information Security Officer and Privacy Officer
and COUNTY’s Department of Behavioral Health HIPAA Representative. This written investigation
and description of any reporting necessary shall be postmarked within the thirty (30) working days of
the discovery of the breach to the addresses below:
County of Fresno County of Fresno County of Fresno
Dept. of Behavioral Health Dept. of Public Health Information Technology Services
HIPAA Representative Privacy Officer Information Security Officer
(559) 600-9180 (559) 600-3200 (559) 600-5800
4441 E. Kings Canyon 1221 Fulton Mall 2048 N. Fine Street
Fresno, CA 93702 Fresno, CA 93728 Fresno, CA 93727
H. UPholdings shall make its internal practices, books, and records relating to the
use and disclosure of PHI received from COUNTY, or created or received by UPholdings on behalf of
COUNTY, available to the United States Department of Health and Human Services upon dema nd.
I. Safeguards
UPholdings shall implement administrative, physical, and technical safeguards as
required by 45 CFR 164.308, 164.310, and 164.312 that reasonably and appropriately protect the
confidentiality, integrity, and availability of PHI, including electronic PHI, that it creates, receives,
maintains or transmits on behalf of COUNTY; and to prevent access, use or disclosure of PHI other
than as provided for by this MOU. UPholdings 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 UPholdings operations and the nature and scope of its
activities. Upon COUNTY’s request, UPholdings shall provide COUNTY with information
concerning such safeguards.
UPholdings shall implement strong access controls and other security safeguards
DBH & UPHOLDINGS MOU – HCD NPLH - 15 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
and precautions in order to restrict logical and physical access to confidential, personal (e.g., PHI) or
sensitive data to authorized users only. Said safeguards and precautions shall include the following
administrative and technical password controls for all systems used to process or store confidential,
personal, or sensitive data:
1. Passwords must not be:
a. Shared or written down where they are accessible or recognizable
by anyone else; such as taped to computer screens, stored under keyboards, or visible in a work area;
b. A dictionary word; or
c. Stored in clear text
2. Passwords must be:
a. Eight (8) characters or more in length;
b. Changed every ninety (90) days;
c. Changed immediately if revealed or compromised; and
d. Composed of characters from at least three of the following four
groups from the standard keyboard:
1) Upper case letters (A-Z);
2) Lowercase letters (a-z);
3) Arabic numerals (0 through 9); and
4) Non-alphanumeric characters (punctuation symbols).
UPholdings 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.
UPholdings 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
DBH & UPHOLDINGS MOU – HCD NPLH - 16 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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).
UPholdings shall not transmit confidential, personal, or sensitive data via e-mail
or other internet transport protocol unless the data is encrypted by a solution that has been validated by
the National Institute of Standards and Technology (NIST) as conforming to the Advanced Encryption
Standard (AES) Algorithm.
J. Mitigation of Harmful Effects
UPholdings shall mitigate, to the extent practicable,
any harmful effect that is known to UPholdings of an unauthorized access, viewing, use, disclosure, or
breach of PHI by UPholdings or its subcontractors in violation of the requirements of these provisions.
K. UPholdings Subcontractors
UPholdings shall ensure that any of its contractors, including subcontractors, if
applicable, to whom UPholdings provides PHI received from or created or received b y UPholdings on
behalf of COUNTY, agree to the same restrictions and conditions that apply to UPholdings with
respect to such PHI; and to incorporate, when applicable, the relevant provisions of these provisions
into each subcontract or sub-award to such agents or subcontractors.
L. Employee Training and Discipline
UPholdings shall train and use reasonable measures to ensure compliance with
the requirements of these provisions by employees who assist in the performance of functions or
activities on behalf of COUNTY under this MOU and use or disclose PHI and discipline such
employees who intentionally violate any provisions of these provisions, including termination of
employment.
M. Termination for Cause
Upon the knowledge by any party of a material br each of these provisions by one
of the other parties, the affected party shall either:
1. Provide an opportunity for the party that caused the breach to cure the
breach or end the violation and terminate this MOU if that party does not cure the breach or end the
violation within the time specified by the affected party; or
DBH & UPHOLDINGS MOU – HCD NPLH - 17 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2. Immediately terminate this MOU if any party has breached a material
term of these provisions and cure is not possible.
3. If neither cure nor termination is feasible, the COUNTY Privacy Officer
or the UPholdings designee(s) shall report the violation to the Secretary of the U.S. Department of
Health and Human Services.
N. Judicial or Administrative Proceedings
Any party may terminate this MOU in accordance with the terms and conditions
of this MOU as written hereinabove, if: (1) Any party is found guilty in a criminal proceeding for a
violation of the HIPAA Privacy or Security Laws or the HITECH Act; or (2) a f inding or stipulation
that COUNTY or UPholdings has violated a privacy or security standard or requirement of the
HITECH Act, HIPAA; or other security or privacy laws in an administrative or civil proceeding in
which COUNTY and UPholdings is a party.
O. Effect of Termination
Upon termination or expiration of this MOU for any reason, UPholdings shall
return or destroy all PHI received from COUNTY (or created or received by UPholdings on behalf of
COUNTY) that UPholdings still maintain in any form, and shall retain no copies of such PHI. If
return or destruction of PHI is not feasible, UPholdings shall continue to extend the protections of
these provisions to such information, and limit further use of such PHI to those purposes that make the
return or destruction of such PHI infeasible. This provision shall apply to PHI that is in the possession
of subcontractors or agents, if applicable, of UPholdings. If UPholdings destroy the PHI data, a
certification of date and time of destruction shall be provided to the COUNTY by UPholdings.
P. Disclaimer
COUNTY makes no warranty or representation that compliance by UPholdings
with these provisions, the HITECH Act, HIPAA or the HIPAA regulations will be adequate or
satisfactory for UPholdings own purposes or that any information in UPholdings possession or control,
or transmitted or received by UPholdings, is or will be secure from unauthorized access, viewing, use,
disclosure, or breach. UPholdings is solely responsible for all decisions made by UPholdings
regarding the safeguarding of PHI.
DBH & UPHOLDINGS MOU – HCD NPLH - 18 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Q. Amendment
The parties acknowledge that Federal and State laws relating to electronic data
security and privacy are rapidly evolving and that amendment of these provisions may be required to
provide for procedures to ensure compliance with such developments. The parties specifically agree
to take such action as is necessary to amend this MOU in order to implement the standards and
requirements of HIPAA, the HIPAA regulations, the HITECH Act and ot her applicable laws relating
to the security or privacy of PHI. COUNTY may terminate this MOU upon thirty (30) days written
notice in the event that UPholdings do not enter into an amendment providing assurances regarding the
safeguarding of PHI that COUNTY in its sole discretion deems sufficient to satisfy the standards and
requirements of HIPAA, the HIPAA regulations and the HITECH Act.
R. No Third-Party Beneficiaries
Nothing express or implied in the terms and conditions of these provisions is
intended to confer, nor shall anything herein confer, upon any person other than COUNTY or
UPholdings and their respective successors or assignees, any rights, remedies, obligations or liabilities
whatsoever.
S. Interpretation
The terms and conditions in these provisions shall be interpreted as broadly as
necessary to implement and comply with HIPAA, the HIPAA regulations and applicable State laws.
The parties agree that any ambiguity in the terms and conditions of these provisions shall be resolved
in favor of a meaning that complies and is consistent with H IPAA and the HIPAA regulations.
T. Regulatory References
A reference in the terms and conditions of these provisions to a section in the
HIPAA regulations means the section as in effect or as amended.
U. Survival
The respective rights and obligations of UPholdings as stated in this Section shall
survive the termination or expiration of this MOU.
V. No Waiver of Obligations
No change, waiver or discharge of any liability or obligation hereunder on any
DBH & UPHOLDINGS MOU – HCD NPLH - 19 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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.
18. DATA SECURITY
For the purpose of preventing the potential loss, misappropriation or inadvertent access,
viewing, use or disclosure of COUNTY data including sensitive or personal client information; abuse
of COUNTY resources; and/or disruption to COUNTY operations, indiv iduals and/or agencies that
enter into a contractual relationship with the COUNTY for the purpose of providing services under
this MOU must employ adequate data security measures to protect the confidential information
provided to UPholdings by the COUNTY, including but not limited to the following:
A. UPholdings -Owned Mobile, Wireless, or Handheld Devices
UPholdings may not connect to COUNTY networks via personally-owned
mobile, wireless or handheld devices, unless the following conditions are met:
1) UPholdings has received authorization by COUNTY for
telecommuting purposes;
2) Current virus protection software is in place;
3) Mobile device has the remote wipe feature enabled; and
4) A secure connection is used.
B. UPholdings -Owned Computers or Computer Peripherals
UPholdings may not bring UPholdings -owned computers or computer
peripherals into the COUNTY for use without prior authorization from the COUNTY’s Chief
Information Officer, and/or designee(s), including but not limited to mobile storage devices. If data is
approved to be transferred, data must be stored on a secure server approved by the COUNT Y and
transferred by means of a Virtual Private Network (VPN) connection, or another type of secure
connection. Said data must be encrypted.
C. COUNTY-Owned Computer Equipment
UPholdings or anyone having an employment relationship with the COUNTY
may not use COUNTY computers or computer peripherals on non-COUNTY premises without prior
authorization from the COUNTY’s Chief Information Officer, and/or designee(s).
DBH & UPHOLDINGS MOU – HCD NPLH - 20 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
D. UPholdings may not store COUNTY’s private, confidential or sensitive data on
any hard-disk drive, portable storage device, or remote storage installation unless encrypted.
E. UPholdings shall be responsible to employ strict controls to ensure the integrity
and security of COUNTY’s confidential information and to prevent unauthorized access, viewing, use
or disclosure of data maintained in computer files, program documentation, data processing systems,
data files and data processing equipment which stores or processes COUNTY data internally and
externally.
F. Confidential client information transmitted to one party by the other by means of
electronic transmissions must be encrypted according to Advanced Encryption Standards (AES) of
128 BIT or higher. Additionally, a password or pass phrase must be utilized.
G. UPholdings is responsible to immediately notify COUNTY of any violations,
breaches or potential breaches of security related to COUNTY’s confidential information, data
maintained in computer files, program documentation, data processing systems, data files and data
processing equipment which stores or processes COUNTY data internally or externally.
H. COUNTY shall provide oversight to UPholdings response to all incidents arising
from a possible breach of security related to COUNTY’s confidential client information provided to
UPholdings. UPholdings will be responsible to issue any notification to affected individuals as required
by law or as deemed necessary by COUNTY in its sole discretion. UPholdings will be responsible for all
costs incurred as a result of providing the required notification.
19. AUDITS AND INSPECTIONS
UPholdings shall at any time during business hours, and as often as the COUNTY may
deem necessary, make available to the COUNTY for examination all of its records and data with respect
to the matters covered by this MOU. UPholdings shall, upon request by the COUNTY, permit the
COUNTY to audit and inspect all such records and data necessary to ensure the UPholdings compliance
with the terms of this MOU.
The COUNTY shall at any time during business hours, and as often as UPholdings may
deem necessary, make available to UPholdings for examination all of its records and data with respect to
the matters covered by this MOU. The COUNTY shall, upon request by UPholdings, permit UPholdings
DBH & UPHOLDINGS MOU – HCD NPLH - 21 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
to audit and inspect all such records and data necessary to ensure the COUNTY’s compliance with the
terms of this MOU.
If this MOU exceeds ten thousand dollars ($10,000.00), CONTRACTOR shall be subject
to the examination and audit of the Auditor General for a period of three (3) years after final payment
under contract (Government Code Section 8546.7).
20. DISCLOSURE OF SELF – DEALING TRANSACTIONS
Only applicable if UPholdings is operating as a corporation (a for-profit or non-profit
corpor ation) or UPholdings changes its status to operate as a corporation during this MOU.
Members of UPholdings shall disclose any self-dealing transactions that they are a party to
while UPholdings is providing goods or performing services under this MOU. A self-dealing transaction
shall mean a tra nsaction to which UPholdings is a party and in which one or more of its directors has a
material financial interest. Members of UPholdings hall disclose any self-dealing transactions that they
are a party to by completing and signing a Self-Dealing Transaction Disclosure Form (Exhibit A) and
submitting it to the COUNTY prior to commencing with the self-dealing transaction or immediately
thereafter.
21. NON-EXCLUSIVE MOU
No provisions of this MOU shall preclude COUNTY from entering into other MOU’s
with other parties for supportive housing related programs and services.
22. ENTIRE MOU
This MOU and all exhibits constitutes the entire understanding between UPholdings and
COUNTY with respect to the subject matter hereof and supersedes all previous arrangements,
negotiations, proposals, commitments, writings, advertisements, publications, and understandings of
any nature whatsoever unless expressly included in this MOU.
Exhibit A
Page 1 of 2
SELF-DEALING TRANSACTION DISCLOSURE FORM
In order to conduct business with the County of Fresno (hereinafter referred to as “County”), members
of a contractor’s board of directors (hereinafter referred to as “County Contractor”), must disclose any
self-dealing transactions that they are a party to while providing goods, performing services, or both
for the County. A self-dealing transaction is defined below:
“A self-dealing transaction means a transaction to which the corporation is a party and in which one
or more of its directors has a material financial interest”
The definition above will be utilized for purposes of completing this disclosure form.
INSTRUCTIONS
(1) Enter board member’s name, job title (if applicable), and date this disclosure is being made.
(2) Enter the board member’s company/agency name and address.
(3) Describe in detail the nature of the self-dealing transaction that is being disclosed to the
County. At a minimum, include a description of the following:
a. The name of the agency/company with which the corporation has the transaction; and
b. The nature of the material financial interest in the Corporation’s transaction that the
board member has.
(4) Describe in detail why the self-dealing transaction is appropriate based on applicable
provisions of the Corporations Code.
(5) Form must be signed by the board member that is involved in the self-dealing transaction
described in Sections (3) and (4).
Exhibit A
Page 2 of 2
(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: