Loading...
HomeMy WebLinkAboutP-24-165 Specialized Legal Services.pdf P-24-165 AGREEMENT FOR SPECIALIZED LEGAL SERVICES THIS AGREEMENT is made and entered into this 9th day of April , 2024 by and between the COUNTY OF FRESNO, a political subdivision of the State of California,hereinafter referred to as"COUNTY and Aleshire&Wynder,LLP,hereinafter referred to as"ATTORNEY." WITNESSETH: WHEREAS, COUNTY is responsible for the administration prosecution and defense of litigation for and against the County and its employees. WHEREAS, COUNTY needs and wishes to engage appropriate legal counsel, who is skilled and knowledgeable in defense of General Litigation claims, and to advise and represent COUNTY employee(s) in connection with the matters, as provided herein; and WHEREAS,ATTORNEY states that it is experienced,possesses expertise in such matters, and is willing to perform said services, NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions herein contained, the Parties hereto agree as follows: SECTION 1 ENGAGEMENT OF ATTORNEY 1.1. COUNTY hereby engages ATTORNEY as an independent contractor, and any associated staff ATTORNEY and paralegals or other legal support staff as ATTORNEY deems necessary, and whom COUNTY COUNSEL approves. 1.2. Each claim will be handled by the ATTORNEY to which the assignment is made unless COUNTY approves the handling by another ATTORNEY in the firm. Associated staff may assist the ATTORNEY as deemed necessary. 1.3. Any additional instructions relative to the handling of a claim which are not specified or otherwise alluded to in this Agreement will be included in the letter of engagement for each claim assigned to ATTORNEY. Such instructions will be complied with by ATTORNEY as well as any additional client direction in the management of the claim. SECTION 2 SCOPE OF SERVICES 2.1 ATTORNEY shall assist, advise, and represent COUNTY and/or COUNTY employee(s) in connection with all matters relative to the administration, prosecution and defense of the claims assigned by COUNTY COUNSEL, as specified by COUNTY and per the terms set forth in this Agreement. 09999.0014/937651.2 1 P-24-165 2.2 ATTORNEY shall perform such other similar legal services as requested by COUNTY COUNSEL in connection with the matters related to the administration and defense of the assigned claims. SECTION 3 PERFORMANCE BY ATTORNEY 3.1 ATTORNEY agrees to avoid unnecessary duplicative efforts by ATTORNEY and any associated counsel and/or staff members of ATTORNEY in the performance of services for COUNTY hereunder. 3.2 COUNTY shall not be obligated to compensate ATTORNEY for intra-office conferences between or among ATTORNEY, associate ATTORNEYS, and/or other staff members, unless such intra-office conferences promote efficiency in the performance of ATTORNEY'S work on a matter,or a reduction in the cost of compensation paid or reimbursement made for related, actual, reasonable and necessary, out-of-pocket expenses to ATTORNEY, or both. 3.3 In the performance of the tasks identified in Section 2 of this Agreement, ATTORNEY shall provide only those services which are necessary to carry out such tasks in an efficient and effective manner. 3.4 COUNTY must approve the retention of all experts, consultants, investigators, and any other unusual expenditures. SECTION 4 COMPENSATION OF ATTORNEY 4.1 COUNTY shall be obligated to compensate ATTORNEY pursuant to the terms and conditions of this Agreement and for the performance of those tasks identified in Section 2 of this Agreement, to the reasonable satisfaction of the COUNTY, that take place during the term of this Agreement. It is understood that COUNTY shall not be obligated to compensate ATTORNEY for: (a) any work, services, or functions performed by ATTORNEY that do not arise directly from the performance of tasks identified in Section 2 of this Agreement; and (b) providing COUNTY with documentation, explanations, or justifications concerning the adequacy or accuracy of ATTORNEY's invoices for the performance of services under this Agreement, and resolving same to the reasonable satisfaction of COUNTY. 4.2 COUNTY agrees to pay and ATTORNEY agrees to accept as full compensation for performance of tasks under this Agreement ATTORNEY's reasonable fees as described in Attachment A, Schedule of Rates. 4.3 ATTORNEY shall be reimbursed for actual, reasonable, and necessary out-of- pocket expenses, as follows: telephone charges, facsimile charges, computer research charges, filing fees, postage charges, printing and photographic reproduction expenses, and all other directly-related expenses. It is understood that ATTORNEY shall not be reimbursed for his 09999.0014/937651.2 2 P-24-165 secretarial, clerical, word processing or typist services (including overtime hours worked), that is "normal office operating expenses,"with the exception of those charges and expenses stated above. In addition, ATTORNEY shall not be reimbursed for such normal office operating expenses incurred, regardless of who performs such services or incurs such expenses. 4.4 COUNTY will not reimburse ATTORNEY for any travel within the cities of Fresno and Clovis. 4.5 In no event shall the total compensation paid ATTORNEY under this Agreement exceed two hundred thousand dollars ($200,000) unless amended pursuant to an amendment formally approved by the Board of Supervisors. ATTORNEY specifically acknowledges that COUNTY is a public agency and can only pay for services pursuant to a valid contract entered into in accordance with California law governing contracting by public agencies. Any services provided by ATTORNEY that exceed the maximum amount of compensation provided for in this paragraph, are performed at the ATTORNEY'S own risk and not legally compensable. 4.6 Whenever ATTORNEY has incurred fees for services or costs that total eighty percent (80%) of the maximum compensation provided for by this Agreement or any lawful amendment,whether such fees are costs are billed or not,ATTORENY shall provide written notice to COUNTY of this fact in order to allow adequate time for any necessary amendment to this Agreement. SECTION 5 PAYMENT AND RECORD-KEEPING 5.1 Subject to Section 4 of this Agreement, payment of compensation for the services provided and reimbursement for related, actual, reasonable and necessary, out-of-pocket expenses incurred which are described herein shall be made by COUNTY after submission of an itemized invoice by ATTORNEY to County Counsel.ATTORNEY shall submit such invoices no later than the twentieth (20th) day of the month following the month services are completed, unless the bill totals less than one hundred dollars($100). The file will not be billed until the total reaches at least one hundred dollars ($100) or the claim is closed. All payments by COUNTY will be made within forty-five (45) days after receipt, verification and approval of ATTORNEY'S invoices by COUNTY COUNSEL. 5.2 All such invoices shall have sufficient detail as may be required by the COUNTY Auditor-Controller/Treasurer-Tax Collector, including,but not limited to: 5.2.1 The plaintiff's name, the date of loss, the COUNTY's claim number and any other identifying information that will indicate the file to which billing is to be assigned. 5.2.2 The specific nature of each task performed as services under this Agreement; 5.2.3 The name of the ATTORNEY or staff member performing each task; 5.2.4 The number of hours worked by each such person for each such task; 5.2.5 The hourly rate per each such person performing each such task; 09999.0014/937651.2 3 P-24-165 5.2.6 The related, actual, reasonable and necessary, out-of-pocket expenses incurred, as provided for in Section 4 of this Agreement; 5.2.7 A certification by ATTORNEY that each such invoice is true and accurate as to the information and specification contained therein; 5.3 In addition to the requirements of Section 5.2, each invoice shall set forth a summary of hours worked by each ATTORNEY and staff member for the applicable billing period. Each invoice shall set forth the product of such summary of hours worked by each person multiplied by each such person's billing rate, as set forth in Attachment A, Schedule of Rates. 5.4 In preparing invoices, if requested by COUNTY COUNSEL, ATTORNEY shall segregate each task performed on a daily basis. If so requested by COUNTY, ATTORNEY shall not combine unrelated tasks as a single entry in lieu of setting forth the hours of work performed by an ATTORNEY or staff member on each specific task. 5.5 ATTORNEY shall prepare all invoices in an organized manner that facilitates an efficient review of the services performed and the expenses incurred in order to provide COUNTY with a clear and complete picture of how much time was devoted to specific tasks and projects, and the cost associated therewith. 5.6 ATTORNEY shall keep complete records of the services provided, as described in this Section 5, together with all related actual, reasonable and necessary, out-of-pocket expenses applicable to the work provided under this Agreement. The County Auditor-Controller/Treasurer- Tax Collector, or his or her duly authorized representatives, shall be given reasonable access to all of these records for the purposes of audit of this Agreement. In addition, ATTORNEY shall be subject to the examination and audit of such records by the State Auditor for a period of three (3) years after final payment under this Agreement,pursuant to Government Code section 8546.7, as applicable. 5.7 Attorney shall provide to COUNTY a W-9, 1099 and CA Form 590 as appropriate upon execution of the agreement and annually thereafter. SECTION 6 TERM OF AGREEMENT 6.1 This Agreement shall be effective and shall commence January 1, 2024. This agreement shall continue in full force and effect until December 31, 2026. This Agreement may be extended for two (2) additional consecutive twelve (12) month periods upon written approval of both parties no later than thirty (30) days prior to the first day of the next twelve (12) month extension period. The Director of the Human Resources Department, or his designee, is authorized to execute such written approval on behalf of COUNTY based on ATTORNEY's satisfactory performance. COUNTY may terminate this Agreement at any time for any reason by providing written notice to ATTORNEY. 6.2 ATTORNEY may terminate this Agreement for material breach after giving COUNTY written notice and 10 days to correct the breach. However, COUNTY's rights under any pending matter which may arise from ATTORNEY's service hereunder shall not be prejudiced 09999.0014/937651.2 4 P-24-165 due to such termination, as required by the Rules of Professional Conduct of the State Bar of California. Subject to Section 4 of this Agreement, ATTORNEY shall be paid for all services performed to the reasonable satisfaction of the COUNTY, to the date of termination of this Agreement. SECTION 7 INDEPENDENT CONTRACTOR 7.1 In performance of the work,duties,and obligations assumed by ATTORNEY under this Agreement, it is mutually understood and agreed that ATTORNEY, including any and all of ATTORNEY's officers, agents, and employees, will at all times be acting and performing as an independent contractor, and shall act in an independent capacity and not as an officer, agent, servant, employee,joint venturer, partner, or associate of COUNTY. However, COUNTY shall retain the right to administer this Agreement to verify that ATTORNEY is performing its obligations in accordance with the terms and conditions thereof.ATTORNEY and COUNTY shall comply with all applicable provisions of law and the rules and regulations,if any,of governmental authorities having jurisdiction over the subject matter thereof. 7.2 Because of its status as an independent contractor,ATTORNEY,including any and all of ATTORNEY's officers, agents, and employees, shall have absolutely no right to employment rights and benefits available to COUNTY employees. ATTORNEY shall be solely liable and responsible for providing to,or on behalf of,its employees all legally required employee benefits. In addition, ATTORNEY shall be solely responsible and hold COUNTY harmless from all matters related to payment of ATTORNEY'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, ATTORNEY may be providing services to others unrelated to the COUNTY or to this Agreement. SECTION 8 HOLD HARMLESS 8.1 ATTORNEY agrees to indemnify, save,hold harmless,and at COUNTY'S request, defend the COUNTY, its officers, agents, and employees from any and all costs and expenses (including attorney's fees and costs), damages, liabilities,claims, and losses occurring or resulting to COUNTY in connection with the performance, or failure to perform, by ATTORNEY, its officers, agents, or employees under this Agreement, and from any and all costs and expenses (including attorney's fees and costs), damages, liabilities, claims,and losses occurring or resulting to any person, firm, or corporation who may be injured or damaged by the performance, or failure to perform, of ATTORNEY, its officers, agents, or employees under this Agreement. SECTION 9 INSURANCE Without limiting the COUNTY's right to obtain indemnification from ATTORNEY or any third parties,ATTORNEY,at its sole expense, shall maintain in full force and effect,the following insurance policies or a program of self-insurance,including but not limited to,an insurance pooling arrangement or Joint Powers Agreement(JPA) throughout the term of the Agreement: 09999.0014/937651.2 5 P-24-165 9.1 Professional Liability ATTORNEY shall maintain Professional Liability Insurance with limits of not less than one million dollars ($1,000,000.00) per occurrence and three million dollars ($3,000,000.00) annual aggregate. ATTORNEY shall provide COUNTY with written evidence of such coverage. This coverage may be issued on a per claim basis. If so,ATTORNEY agrees that it shall maintain, at its sole expense, so-called"tail coverage" in full force and effect for a period of three (3) years following the termination of this Agreement, which shall be one or more policies of professional liability insurance with limits of coverage as specified herein. 9.2 Automobile Liability Comprehensive Automobile Liability Insurance with limits of not less than One Million Dollars($1,000,000.00)per accident for bodily injury and for property damages. Coverage should include any auto used in connection with this Agreement. 9.3 Commercial General Liability ATTORNEY shall maintain Commercial General Liability Insurance with limits of not less than two million dollars ($2,000,000.00) per occurrence and an annual aggregate of four million dollars ($4,000,000.00). This policy shall be issued on a per- occurrence basis. COUNTY may require specific coverage including completed operations, product liability, contractual liability, explosion-collapse-underground liability fire legal liability, or any other liability insurance deemed necessary because of the nature of the contract. 9.4 Workers' Compensation ATTORNEY shall maintain a policy of Workers' Compensation insurance as may be required by the California Labor Code. 9.5 Cyber Liability Cyber Liability Insurance, with limits not less than $2,000,000 per occurrence or claim, $2,000,000 aggregate. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by CONTRACTOR in this Agreement and shall include, but not be limited to, claims involving infringement of intellectual property, including but not limited to infringement of copyright, trademark, trade dress, invasion of privacy violations, information theft, damage to or destruction of electronic information, release of private information, alteration of electronic information,extortion and network security.The policy shall provide coverage for breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations. SECTION 10 ADDITIONAL INSURANCE TERMS 10.1 ATTORNEY shall obtain endorsements to the Commercial General Liability insurance naming the County of Fresno, its officers, agents, and employees, individually and collectively, as additional insured, but only insofar as the operations under this Agreement are 09999.0014/937651.2 6 P-24-165 concerned. Such coverage for additional insured shall apply as primary insurance and any other insurance, or self-insurance, maintained by County, its officers, agents and employees shall be excess only and not contributing with insurance provided under ATTORNEY's policies herein. This insurance shall not be cancelled or changed without a minimum of thirty (30) days advance written notice given to COUNTY. 10.2 ATTORNEY hereby waives its right to recover from COUNTY,its officers,agents, and employees any amounts paid by the policy of worker's compensation insurance required by this Agreement. ATTORNEY is solely responsible to obtain any endorsement to such policy that may be necessary to accomplish such waiver of subrogation, but ATTORNEY's waiver of subrogation under this paragraph is effective whether or not ATTORNEY obtains such an endorsement. 10.3 Within thirty (30) days from the date ATTORNEY executes this Agreement, ATTORNEY shall provide certificates of insurance and endorsement as stated above for all of the foregoing policies,as required in Section 9 herein,to COUNTY,County Counsel,stating that such insurance coverage has been obtained and is in full force and effect; that the County of Fresno, its officers, agents and employees will not be responsible for any premiums on the policies; that for such worker's compensation insurance the ATTORNEY has waived its right to recover from the COUNTY, its officers, agents, and employees any amounts paid under the insurance policy and that waiver does not invalidate the insurance policy that such Commercial General Liability insurance names the COUNTY, its officers, agents and employees, individually and collectively, as additional insured, but only insofar as the operations under this Agreement are concerned; that such coverage for additional insured shall apply as primary insurance and any other insurance, or self- insurance, maintained by COUNTY, its officers, agents and employees, shall be excess only and not contributing with insurance provided under ATTORNEY's policies herein; and that this insurance shall not be cancelled or changed without a minimum of thirty(30)days advance,written notice given to COUNTY. 10.4 In the event ATTORNEY fails to keep in effect at all times insurance coverage as herein provided, the COUNTY may, in addition to other remedies it may have, suspend or terminate this Agreement upon the occurrence of such event. 10.5 All policies shall be with admitted insurers licensed to do business in the State of California. Insurance purchased shall be purchased from companies possessing a current A.M. Best, Inc. rating of A, FSC VII or better. SECTION 11 AGREEMENT BINDING ON SUCCESSORS 11.1 This Agreement shall be binding upon COUNTY and ATTORNEY and their successors, executors, administrators, legal representatives, and assigns with respect to all the covenants and conditions set forth herein. 09999.0014/937651.2 7 P-24-165 SECTION 12 ASSIGNMENT AND SUBCONTRACTING 12.1 Neither party hereto shall assign, transfer, or sub-contract neither this Agreement nor its rights nor duties hereunder without the written consent of the other. County Counsel, or his or her designee, may give such consent on behalf of the COUNTY, provided however, the assignee, transferee or sub-contractor shall carry insurance of a type and in an amount that is acceptable to COUNTY Counsel, or his or her designee. SECTION 13 AMENDMENTS 13.1 This Agreement may be amended only in writing signed by the Parties hereto. SECTION 14 CONFLICT OF INTEREST 14.1 ATTORNEY promises, covenants, and warrants that the performance of their services and representation of COUNTY under this Agreement do not result in a "conflict of interest" as that term is used in the Rules of Professional Conduct of the State Bar of California. In the event a "conflict of interest" occurs, ATTORNEY will request that COUNTY waive such "conflict of interest" on a case-by-case basis. If the COUNTY does not waive the conflict, ATTORNEY must resolve the conflicting issue in the favor of COUNTY. SECTION 15 FURTHER ASSURANCES BY ATTORNEYS 15.1 ATTORNEY represents that it has read and is familiar with Government Code Section 1090 et seq. and Section 87100 et seq. ATTORNEY promises, covenants, and warrants that the performance of its services under this Agreement shall not result in or cause a violation of Government Code Section 1090 et seq. and Section 87100 et seq. SECTION 16 COMPLIANCE WITH LAWS 16.1 ATTORNEY shall comply with all federal, state, and local laws and regulations applicable to the performance of its obligations under this Agreement and maintain all licenses as required in the performance of its duties. SECTION 17 HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT 17.1 The parties to this Agreement shall be in strict conformance with all applicable Federal and State of California laws and regulations, including, but not limited to Sections 5328, 10850, and 14100.2 et seq. of the Welfare and Institutions Code, Sections 2.1 and 431.300 et seq. of Title 42, Code of Federal Regulations (CFR), Section 56 et seq. of the California Civil Code, Sections 11977 and 11812 of Title 22 of the California Code of Regulations, and the Health Insurance Portability and Accountability Act(HIPAA),including but not limited to Section 1320D 09999.0014/937651.2 8 P-24-165 et seq. of Title 42,United States Code (USC) and its implementing regulations, including,but not limited to, Title 45, CFR, Sections 142, 160, 162, and 164, The Health Information Technology for Economic and Clinical Health Act (HITECH) regarding the confidentiality and security of patient information, and the Genetic Information Nondiscrimination Act (GINA) of 2008 regarding the confidentiality of genetic information. Except as otherwise provided in this Agreement,ATTORNEY, as a Business Associate of COUNTY,may use or disclose Protected Health Information(PHI)to perform functions,activities or services for or on behalf of COUNTY, as specified in this Agreement, provided that such use or disclosure shall not violate the Health Insurance Portability and Accountability Act (HIPAA), 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. 17.2 ATTORNEY, including its subcontractors and employees, shall protect from unauthorized access, use, or disclosure of names and other identifying information, including genetic information, concerning persons receiving services pursuant to this Agreement, except where permitted in order to carry out data aggregation purposes for health care operations [45 CFR Sections 164.504 (e)(2)(i),164.504 (3)(2)(ii)(A), and 164.504 (e)(4)(i)]. This pertains to any and all persons receiving services pursuant to a COUNTY funded program. This requirement applies to electronic PHI. ATTORNEY shall not use such identifying information or genetic information for any purpose other than carrying out ATTORNEY's obligations under this Agreement. 17.3 ATTORNEY, including its subcontractors and employees, shall not disclose any such identifying information or genetic information to any person or entity, except as otherwise specifically permitted by this Agreement, authorized by Subpart E of 45 CFR Part 164 or other law,required by the Secretary, or authorized by the client/patient in writing. In using or disclosing PHI that is permitted by this Agreement o authorized by law, ATTORNEY shall make reasonable efforts to limit PHI to the minimum necessary to accomplish intended purpose of use, disclosure or request. 17.4 For purposes of the above sections, identifying information shall include, but not be limited to, name, identifying number, symbol, or other identifying particular assigned to the individual, such as fingerprint or voiceprint, or photograph. 17.5 For purposes of the above sections, genetic information shall include genetic tests of family members of an individual or individual(s),manifestation of disease or disorder of family members of an individual, or any request for or receipt of genetic services by individual or family members. Family member means a dependent or any person who is first, second, third, or fourth degree relative. 17.6 ATTORNEY shall provide access, at the request of COUNTY, and in the time and manner designated by COUNTY, to PHI in a designated record set(as defined in 45 CFR Section 164.501), to an individual or to COUNTY in order to meet the requirements of 45 CFR Section 164.524 regarding access by individuals to their PHI. With respect to individual requests, access shall be provided within thirty (30) days from request. Access may be extended if ATTORNEY 09999.0014/937651.2 9 P-24-165 cannot provide access and provides individual with the reasons for the delay and the date when access may be granted. PHI shall be provided in the form and format requested by the individual or COUNTY. ATTORNEY shall make any amendment(s)to PHI in a designated record set at the request of COUNTY or individual, and in the time and manner designated by COUNTY in accordance with 45 CFR Section 164.526. ATTORNEY 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. 17.7 ATTORNEY shall report to COUNTY, in writing, any knowledge or reasonable belief that there has been unauthorized access,viewing,use,disclosure,security incident,or breach of unsecured PHI not permitted by this Agreement of which it becomes aware, immediately and without reasonable delay and in no case later than two (2)business days of discovery. Immediate notification shall be made to COUNTY's Information Security Officer and Privacy Officer and COUNTY's DPH HIPAA Representative, within two (2) business days of discovery. The notification shall include, to the extent possible, the identification of each individual whose unsecured PHI has been, or is reasonably believed to have been, accessed, acquired, used, disclosed, or breached. ATTORNEY 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. ATTORNEY shall investigate such breach and is responsible for all notifications required by law and regulation or deemed necessary by COUNTY and shall provide a written report of the investigation and reporting required to COUNTY's Information Security Officer and Privacy Officer and COUNTY's DPH HIPAA Representative. This written investigation and description of any reporting necessary shall be postmarked within the thirty (30) working days of the discovery of the breach to the addresses below: County of Fresno County of Fresno County of Fresno Dept. of Public Health Svcs. Dept. of Public Health Privacy Information Technology HIPAA Representative Officer Information Security Officer (559) 600-6439 (559) 600-6405 (559) 600-5800 P.O. Box 11867 P.O. Box 11867 2048 N. Fine Street Fresno, CA 93775 Fresno, CA 93775 Fresno, CA 93727 17.8 ATTORNEY shall make its internal practices, books, and records relating to the use and disclosure of PHI received from COUNTY, or created or received by the ATTORNEY on behalf of COUNTY, in compliance with HIPAA's Privacy Rule, including but not limited to, the requirements set forth in Title 45,CFR, Sections 160 and 164.ATTORNEY shall make its internal practices, books, and records relating to the use and disclosure of PHI received from COUNTY, or created or received by the ATTORNEY on behalf of COUNTY, available to the United States Department of Health and Human Services (Secretary)upon demand. ATTORNEY shall cooperate with the compliance and investigation reviews conducted by the Secretary. PHI access to the Secretary must be provided during the ATTORNEY's normal business hours; however, upon exigent circumstances access at any time must be granted. Upon 09999.0014/937651.2 10 P-24-165 the Secretary's compliance or investigation review, if PHI is unavailable to ATTORNEY and in possession of a Subcontractor, it must certify efforts to obtain the information to the Secretary. 17.9 Safe�zuards ATTORNEY shall implement administrative, physical, and technical safeguards as required by the HIPAA Security Rule, Subpart C of 45 CFR 164,that reasonably and appropriately protect the confidentiality, integrity, and availability of PHI, including electronic PHI, that it creates, receives, maintains or transmits on behalf of COUNTY and to prevent unauthorized access, viewing, use, disclosure, or breach of PHI other than as provided for by this Agreement. ATTORNEY shall conduct an accurate and thorough assessment of the potential risks and vulnerabilities to the confidentiality, integrity and availability of electronic PHI. ATTORNEY 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 ATTORNEY's operations and the nature and scope of its activities. Upon COUNTY's request, ATTORNEY shall provide COUNTY with information concerning such safeguards. ATTORNEY shall implement strong access controls and other security safeguards and precautions in order to restrict logical and physical access to confidential, personal (e.g., PHI) or sensitive data to authorized users only. Said safeguards and precautions shall include the following administrative and technical password controls for all systems used to process or store confidential, personal, or sensitive data: 1. Passwords must not be: a. Shared or written down where they are accessible or recognizable by anyone else; such as taped to computer screens, stored under keyboards,or visible in a work area; b. A dictionary word; or C. Stored in clear text 2. Passwords must be: a. Eight(8) characters or more in length; b. Changed every ninety(90) days; C. Changed immediately if revealed or compromised; and d. Composed of characters from at least three (3) of the following four(4) groups from the standard keyboard: 1) Upper case letters (A-Z); 2) Lowercase letters (a-z); 3) Arabic numerals (0 through 9); and 4) Non-alphanumeric characters (punctuation symbols). 09999.0014/937651.2 11 P-24-165 ATTORNEY 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. ATTORNEY shall utilize a commercial encryption solution that has received FIPS 140-2 validation to encrypt all confidential,personal,or sensitive data stored on portable electronic media (including,but not limited to,compact disks and thumb drives)and on portable computing devices (including,but not limited to, laptop and notebook computers). ATTORNEY shall not transmit confidential,personal, or sensitive data via e-mail or other internet transport protocol unless the data is encrypted by a solution that has been validated by the National Institute of Standards and Technology(MIST)as conforming to the Advanced Encryption Standard (AES) Algorithm. ATTORNEY must apply appropriate sanctions against its employees who fail to comply with these safeguards. ATTORNEY must adopt procedures for terminating access to PHI when employment of employee ends. 17.10 Mitigation of Harmful Effects ATTORNEY shall mitigate, to the extent practicable, any harmful effect that is suspected or known to ATTORNEY of an unauthorized access, viewing, use, disclosure, or breach of PHI by ATTORNEY or its subcontractors in violation of the requirements of these provisions. ATTORNEY must document suspected or known harmful effects and the outcome. 17.11 ATTORNEY's Subcontractors ATTORNEY shall ensure that any of its contractors, including subcontractors, if applicable, to whom ATTORNEY provides PHI received from or created or received by ATTORNEY on behalf of COUNTY, agree to the same restrictions, safeguards, and conditions that apply to ATTORNEY 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. 17.12 Employee Training and Discipline ATTORNEY shall train and use reasonable measures to ensure compliance with the requirements of these provisions by employees who assist in the performance of functions or activities on behalf of COUNTY under this Agreement and use or disclose PHI, and discipline such employees who intentionally violate any provisions of these provisions,including termination of employment. 09999.0014/937651.2 12 P-24-165 17.13 Termination for Cause Upon COUNTY's knowledge of a material breach of these provisions by ATTORNEY, COUNTY shall either: 1. Provide an opportunity for ATTORNEY to cure the breach or end the violation and terminate this Agreement if ATTORNEY does not cure the breach or end the violation within the time specified by COUNTY; or 2. Immediately terminate this Agreement if ATTORNEY has breached a material term of these provisions and cure is not possible. 3. If neither cure nor termination is feasible, the COUNTY's Privacy Officer shall report the violation to the Secretary of the U.S. Department of Health and Human Services. 17.14 Judicial or Administrative Proceedings COUNTY may terminate this Agreement in accordance with the terms and conditions of this Agreement as written hereinabove, if: (1) ATTORNEY is found guilty in a criminal proceeding for a violation of the HIPAA Privacy or Security Laws or the HITECH Act; or (2) a finding or stipulation that the ATTORNEY has violated a privacy or security standard or requirement of the HITECH Act, HIPAA or other security or privacy laws in an administrative or civil proceeding in which the ATTORNEY is a party. 17.15 Effect of Termination Upon termination or expiration of this Agreement for any reason,ATTORNEY shall return or destroy all PHI received from COUNTY (or created or received by ATTORNEY on behalf of COUNTY) that ATTORNEY still maintains in any form, and shall retain no copies of such PHI. If return or destruction of PHI is not feasible, it shall continue to extend the protections of these provisions to such information, and limit further use of such PHI to those purposes that make the return or destruction of such PHI infeasible. This provision shall apply to PHI that is in the possession of subcontractors or agents, if applicable, of ATTORNEY. If ATTORNEY destroys the PHI data, a certification of date and time of destruction shall be provided to the COUNTY by ATTORNEY. 17.16 Disclaimer COUNTY makes no warranty or representation that compliance by ATTORNEY with these provisions, the HITECH Act, HIPAA or the HIPAA regulations will be adequate or satisfactory for ATTORNEY's own purposes or that any information in ATTORNEY's possession or control, or transmitted or received by ATTORNEY, is or will be secure from unauthorized access, viewing, use, disclosure, or breach. ATTORNEY is solely responsible for all decisions made by ATTORNEY regarding the safeguarding of PHI. 09999.0014/937651.2 13 P-24-165 17.17 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 agreement in order to implement the standards and requirements of HIPAA, the HIPAA regulations, the HITECH Act and other applicable laws relating to the security or privacy of PHI. COUNTY may terminate this Agreement upon thirty (30)days written notice in the event that ATTORNEY does not enter into an amendment providing assurances regarding the safeguarding of PHI that COUNTY in its sole discretion,deems sufficient to satisfy the standards and requirements of HIPAA,the HIPAA regulations and the HITECH Act. 17.18 No Third-Party Beneficiaries Nothing expressed 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 ATTORNEY and their respective successors or assignees, any rights, remedies, obligations or liabilities whatsoever. 17.19 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 HIPAA and the HIPAA regulations. 17.20 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. 17.21 Survival The respective rights and obligations of ATTORNEY as stated in this Section shall survive the termination or expiration of this Agreement. 17.22 No Waiver of Obligation 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. SECTION 18 GOVERNING LAW 18.1 The rights and obligations of the parties and all interpretations and performance of this Agreement shall be governed in all respects by the laws of the State of California. 09999.0014/937651.2 14 P-24-165 18.2 Venue for any action arising out of or related to this Agreement shall only be in Fresno County, California. SECTION 19 DISCLOSURE OF SELF-DEALING TRANSACTIONS 19.1 This provision is only applicable if the ATTORNEY is operating as a corporation (a for-profit or non-profit corporation) or if, during the term of the agreement, the ATTORNEY changes its status to operate as a corporation. 19.2 Members of the ATTORNEY'S Board of Directors shall disclose any self- dealing transactions that they are a party to while ATTORNEY is providing goods or performing services under this agreement. A self-dealing transaction shall mean a transaction to which the ATTORNEY is a parry and in which one or more of its directors has a material financial interest. Members of the Board of Directors shall disclose any self-dealing transactions that they are a party to by completing and signing a Self- Dealing Transaction Disclosure Form, attached hereto as Attachment B and incorporated herein by reference, and submitting it to the COUNTY prior to commencing with the self-dealing transaction or immediately thereafter. SECTION 20 NOTICES 20.1 The persons and their addresses having authority to give and receive notices under this Agreement include the following: COUNTY ATTORNEY County of Fresno Aleshire & Wynder, LLP ATTN: Dan Cederborg ATTN: Shannon Chaffin County Counsel 2440 Tulare Street, Suite 410 2220 Tulare Street, Room 500 Fresno, CA 93721 Fresno, CA 93721 20.2 All notices between the COUNTY and ATTORNEY provided for or permitted under this Agreement must be in writing and delivered either by personal service, by first-class United States mail, by an overnight commercial courier service, or by telephonic facsimile transmission. A notice delivered by personal service is effective upon service to the recipient. A notice delivered by first-class United States mail is effective three COUNTY business days after deposit in the United States mail, postage prepaid, addressed to the recipient. A notice delivered by an overnight commercial courier service is effective one COUNTY business day after deposit with the overnight commercial courier service, delivery fees prepaid, with delivery instructions given for next day delivery, addressed to the recipient. A notice delivered by telephonic facsimile is effective when transmission to the recipient is completed(but, if such transmission is completed outside of COUNTY business hours,then such delivery shall be deemed to be effective at the next beginning of a COUNTY business day), provided that the sender maintains a machine record of the completed transmission. For all claims arising out of or related this this Agreement,nothing in this section establishes, waives, or modifies any claims presentation requirements or procedures 09999.0014/937651.2 15 P-24-165 provided by law, including but not limited to the Government Claims Act(Division 3.6 of Title 1 of the Government Code,beginning with section 810). SECTION 21 ELECTRONIC SIGNATURE 21.1 The parties agree that this Agreement may be executed by electronic signature as provided in this section. An "electronic signature" means any symbol or process intended by an individual signing this Agreement to represent their signature, including but not limited to (1) a digital signature; (2) a faxed version of an original handwritten signature; or(3) an electronically scanned and transmitted (for example by PDF document) of a handwritten signature. Each electronic signature affixed or attached to this Agreement (1) is deemed equivalent to a valid original handwritten signature of the person signing this Agreement for all purposes, including but not limited to evidentiary proof in any administrative or judicial proceeding, and(2)has the same force and effect as the valid original handwritten signature of that person. The provisions of this section satisfy the requirements of Civil Code section 1633.5, subdivision (b), in the Uniform Electronic Transaction Act (Civil Code, Division 3, Part 2, Title 2.5, beginning with section 1633.1). Each parry using a digital signature represents that it has undertaken and satisfied the requirements of Government Code section 16.5, subdivision (a), paragraphs (1) through (5), and agrees that each other party may rely upon that representation. This Agreement is not conditioned upon the parties conducting the transactions under it by electronic means and either party may sign this Agreement with an original handwritten signature. SECTION 22 ENTIRE AGREEMENT 22.1 This Agreement, and any and all documents referred to or otherwise incorporated by reference herein, constitutes the entire Agreement between COUNTY and ATTORNEY with respect to the specialized legal services to be provided herein an supersedes any previous Agreement concerning the subject matter hereof, negotiations, proposals, commitments,writings, or understandings of any nature whatsoever unless expressly included in this Agreement. 22.2 If any part of this Agreement is found violative of any law or is found to be otherwise legally defective,ATTORNEY and COUNTY shall use their best efforts to replace that part of this Agreement with legal terms and conditions most readily approximating the original intent of the parties. IN WITNESS WHEREOF,the Parties hereto have caused this Agreement to be executed as of the day and year first above written. 09999.0014/937651.2 16 P-24-165 ATTORNEY COUNTY OF FRESNO Manuel M. Digitally signed by Manuel M. Vilanova V i l a n ova Date:2024.04.09 15:20:50-07'00' (Aut orized Signature) Purchasing Manager, County of Fresno Shannon L. Chaffin (Print Name& Title) 2440 Tulare Street, Suite 410 Approved (Mailing Address) �Oall;j e - � ..� ,. Fresno CA 93721 �:ze (City, State,Zip) Daniel C. Cederborg, County Couns County of Fresno FOR ACCOUNTING USE ONLY: Fund: 0001 Subclass: 10000 ORG: 2540 Account: 7295 09999.0014/937651.2 17 P-24-165 ATTACHMENT A SCHEDULE OF RATES Attorneys $305 (Partners) $265 (Associates) Paralegals/Law Clerks $165 Photocopy $.20 per page Mileage Current IRS rate The rates set forth in this Agreement are guaranteed for two years.After those two years,and every year thereafter,the rates may adjust by the greater of either three percent(3%)or the relevant local CPI increase over the prior twelve (12) month period, rounded to the nearest dollar. The relevant local CPI shall be set by the Consumer Price Index for all urban consumers in the Riverside-San Bernardino-Ontario areas as published by the United States Government Bureau of Labor Statistics. The ATTORNEY reserves the right to waive or defer any rate adjustment. 09999.0014/937651.2 18 P-24-165 ATTACHMENT B 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 that 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 a 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). 09999.0014/937651.2 19 P-24-165 (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 area party to): (4) Explain why this self-dealing transaction is consistent with the requirements of Corporations Code 5233 (a): 5 Authorized Si nature Signature: Date 09999.0014/937651.2 20