HomeMy WebLinkAboutAgreement A-24-679 with Litigation Engineered.pdf Agreement No. 24-679
AGREEMENT FOR SPECIALIZED LEGAL SERVICES
2
3 THIS AGREEMENT is made and entered into this 17th day of December 2024
4 by and between the COUNTY OF FRESNO, a political subdivision of the State of
5 California, hereinafter referred to as "COUNTY," and Chester Walls dba Litigation
6 Engineered, a sole proprietor, hereinafter referred to as "ATTORNEY."
7 WITNESSETH:
8 WHEREAS, COUNTY is responsible for the administration and defense of
9 General Liability, Auto Liability, Employment Law and Medical Malpractice claims
10 against COUNTY employee(s).
11 WHEREAS, COUNTY needs and wishes to engage appropriate legal counsel,
12 who is skilled and knowledgeable in defense of General Liability claims or other claims
13 that are covered under the County's General Liability and Medical Malpractice
14 Programs, and to advise and represent COUNTY employee(s) in connection with the
15 matters, as provided herein; and
16 WHEREAS, ATTORNEY states that it is experienced, possesses expertise in
17 such matters, and is willing to perform said services,
18 NOW, THEREFORE, in consideration of the mutual covenants, terms and
19 conditions herein contained, the Parties hereto agree as follows:
20 SECTION 1
21 ENGAGEMENT OF ATTORNEY
22 1.1 COUNTY hereby engages ATTORNEY as an independent contractor, and
23 any associated lawyers, paralegals and support staff (collectively, "Staff"), as
24 ATTORNEY deems necessary, and whom the Director, or his or her designee, of
25 COUNTY's Human Resources Department (the "Director") approves.
26 1.2 Each claim will be handled by the lawyer(s) of ATTORNEY to whom the
27 assignment is made by the Director unless the Director approves the handling by
28 another (or additional) lawyer(s) of ATTORNEY. ATTORNEY's Staff may assist the
-1-
I handling lawyer(s) of ATTORNEY as deemed necessary.
2 1.3 Any additional instructions relative to the handling of a claim which are not
3 specified this Agreement will be included in the letter of engagement for each claim or
4 action assigned to ATTORNEY. Such instructions will be complied with by ATTORNEY
s as well as any additional client direction in the management of the claim. The parties
6 intend for ATTORNEY's services, including any communications exchanged between
7 COUNTY and ATTORNEY, such as such letter of engagement, to be covered by the
a attorney-client privilege of confidential communications (California Evidence Code secs
9 952 and 954) and the attorney work product doctrine of confidentiality (California Code
io of Civil Procedure, secs. 2018.010 through 2018.080).
>> SECTION 2
12 SCOPE OF SERVICES
13 2.1 ATTORNEY shall assist, advise, and represent COUNTY, including its
14 boards, commissions, committees, officers, and employees, in connection with all
15 matters relative to the administration and defense of the claims and actions assigned by
16 the Director, as specified by the Director, and per the terms set forth in this Agreement.
17 2.2 ATTORNEY shall perform such other similar legal services as requested
18 by the Director in connection with the matters related to the administration and defense
ig of the assigned claims and actions.
20 SECTION 3
21 PERFORMANCE BY ATTORNEY
22 3.1 ATTORNEY agrees to avoid unnecessary duplicative efforts by
23 ATTORNEY, including its lawyers and/or Staff of ATTORNEY in the performance of
24 services for COUNTY hereunder.
25 3.2 COUNTY shall not be obligated to compensate ATTORNEY for intra-office
26 conferences between or among lawyers of ATTORNEY, and/or Staff, unless such intra-
27 office conferences promote efficiency in the performance of ATTORNEY'S work on a
28 matter, or a reduction in the cost of compensation paid or reimbursement made for
-2-
I related, actual, reasonable and necessary, out-of-pocket expenses to ATTORNEY, or
2 both.
3 3.3 In the performance of the tasks identified in Section 2 of this Agreement,
4 ATTORNEY shall provide only those services which are necessary to carry out such
5 tasks in an efficient and effective manner.
6 3.4 COUNTY shall have the right to approve the retention of all experts,
7 consultants, investigators, and any other unusual or extraordinary expenditures.
8 SECTION 4
9 COMPENSATION OF ATTORNEY
10 4.1 COUNTY shall be obligated to compensate ATTORNEY pursuant to the
i i terms and conditions of this Agreement and for the performance of those tasks
12 identified in Section 2 of this Agreement, to the reasonable satisfaction of the COUNTY,
13 that take place during the term of this Agreement. It is understood that COUNTY shall
14 not be obligated to compensate ATTORNEY for:
15 (a) any work, services, or functions performed by ATTORNEY that do not
16 arise directly from the performance of tasks identified in Exhibit A of this Agreement;
17 and
18 (b) providing COUNTY with documentation, explanations, or justifications
19 concerning the adequacy or accuracy of ATTORNEY's invoices for the performance of
20 services under this Agreement, and resolving same to the reasonable satisfaction of
21 COUNTY.
22 4.2 COUNTY agrees to pay, and ATTORNEY agrees to accept as full
23 compensation for performance of tasks under this Agreement ATTORNEY's reasonable
24 fees as described in Exhibit A, Schedule of Rates.
25 4.3 ATTORNEY shall be reimbursed for actual, reasonable, and necessary
26 out-of-pocket expenses, as follows: telephone charges, facsimile charges, computer
27 research charges, filing fees, postage charges, printing and photographic reproduction
28 expenses, and all other directly related expenses. It is understood that ATTORNEY
-3-
i shall not be reimbursed for the costs of ATTORNEY's Staff, including secretarial,
2 clerical, word processing or typist services (including overtime hours worked), that is
3 "normal office operating expenses," with the exception of those charges and expenses
4 stated above. In addition, ATTORNEY shall not be reimbursed for such normal office
5 operating expenses incurred, regardless of who performs such services or incurs such
6 expenses.
7 4.4 COUNTY will not reimburse ATTORNEY for any travel within the cities of
8 Fresno or Clovis.
9 4.5 Notwithstanding anything else stated to the contrary in this Agreement, in
10 no event shall the maximum amount paid by COUNTY to ATTORNEY as
11 compensation, and as reimbursement of related, actual, reasonable and necessary, out
12 of-pocket expenses, exceed one million five hundred thousand dollars ($1,500,000.00)
13 annually.
14 SECTION 5
15 PAYMENT AND RECORD-KEEPING
16 5.1 Subject to Section 4 of this Agreement, payment of compensation for the
17 services provided and reimbursement for related, actual, reasonable and necessary,
18 out-of-pocket expenses incurred which are described herein shall be made by COUNTY
1g after submission of an itemized invoice by ATTORNEY to Human Resources
20 Department, Risk Management Division. ATTORNEY shall submit such invoices no
21 later than the twentieth (20th) day of the month following the month services are
22 completed, unless the bill totals less than one hundred dollars ($100). The file will not
23 be billed until the total reaches at least one hundred dollars ($100) or the claim is
24 closed. All payments by COUNTY will be made within forty-five (45) days after receipt,
25 verification and approval of ATTORNEY'S invoices by COUNTY's Risk Management.
26 5.2 All such invoices shall have sufficient detail as may be required by the
27 COUNTY Auditor-Controller/Treasurer-Tax Collector, including, but not limited to:
28
-4-
1 5.2.1 The plaintiff's name, the date of loss, the COUNTY's claim number and
2 any other identifying information that will indicate the file to which billing is to be
3 assigned.
4 5.2.2 The specific nature of each task performed as services under this
s Agreement;
6 5.2.3 The name of the ATTORNEY or staff member performing each task;
7 5.2.4 The number of hours worked by each such person for each such task;
a 5.2.5 The hourly rate per each such person performing each such task;
9 5.2.6 The related, actual, reasonable and necessary, out-of-pocket expenses
io 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
12 as to the information and specification contained therein;
13 5.3 In addition to the requirements of Section 5.2, each invoice shall set forth
14 a summary of hours worked by each ATTORNEY and staff member for the applicable
15 billing period. Each invoice shall set forth the product of such summary of hours worked
16 by each person multiplied by each such person's billing rate, as set forth in Attachment
17 A, Schedule of Rates.
18 5.4 In preparing invoices, if requested by COUNTY's Risk Management,
ig ATTORNEY shall segregate each task performed on a daily basis. If so requested by
20 COUNTY, ATTORNEY shall not combine unrelated tasks as a single entry in lieu of
21 setting forth the hours of work performed by an ATTORNEY or staff member on each
22 specific task.
23 5.5 ATTORNEY shall prepare all invoices in an organized manner that
24 facilitates an efficient review of the services performed and the expenses incurred in
25 order to provide COUNTY with a clear and complete picture of how much time was
26 devoted to specific tasks and projects, and the cost associated therewith.
27 5.6 ATTORNEY shall keep complete records of the services provided, as
28 described in this Section 5, together with all related actual, reasonable and necessary,
-5-
1 out-of-pocket expenses applicable to the work provided under this Agreement. The
2 County Auditor-Controller/Treasurer-Tax Collector, or his or her duly authorized
3 representatives, shall be given reasonable access to all of these records for the
4 purposes of audit of this Agreement. In addition, ATTORNEY shall be subject to the
5 examination and audit of such records by the State Auditor for a period of three (3)
6 years after final payment under this Agreement, pursuant to Government Code section
7 8546.7, as applicable.
8 5.7 Attorney shall provide to COUNTY a W-9, 1099 and CA Form 590 as
9 appropriate upon execution of the agreement and annually thereafter.
10 SECTION 6
11 TERM OF AGREEMENT
12 6.1 This Agreement shall be effective and shall commence January 1, 2025.
13 This agreement shall continue in full force and effect until December 31, 2028. The
14 Term of this Agreement may be extended, as to each Contractor, for no more than two,
15 one-year periods only upon written approval of the Contractor and County at least thirty
16 (30) days before the first day of the next one-year extension period. The County's
17 Director is authorized to sign the written approval on behalf of the County based on the
15 Contractor's satisfactory performance. The extension of this Agreement by the County
19 is not a waiver or compromise of any default or breach of this Agreement by the
20 Contractor existing at the time of the extension whether or not known to the County.
21 6.2 ATTORNEY may terminate this Agreement for material breach after giving
22 COUNTY written notice and 10 days to correct the breach. However, COUNTY's rights
23 under any pending matter which may arise from ATTORNEY's service hereunder shall
24 not be prejudiced due to such termination, as required by the Rules of Professional
25 Conduct of the State Bar of California. Subject to Section 4 of this Agreement,
26 ATTORNEY shall be paid for all services performed to the reasonable satisfaction of the
27 COUNTY, to the date of termination of this Agreement.
28 SECTION 7
-6-
I INDEPENDENT CONTRACTOR
2 7.1 In performance of the work, duties, and obligations assumed by
3 ATTORNEY under this Agreement, it is mutually understood and agreed that
4 ATTORNEY, including any and all of ATTORNEY's officers, agents, and employees, wil
s at all times be acting and performing as an independent contractor, and shall act in an
6 independent capacity and not as an officer, agent, servant, employee, joint venturer,
7 partner, or associate of COUNTY. However, COUNTY shall retain the right to
a administer this Agreement to verify that ATTORNEY is performing its obligations in
9 accordance with the terms and conditions thereof. ATTORNEY and COUNTY shall
io comply with all applicable provisions of law and the rules and regulations, if any, of
>> governmental authorities having jurisdiction over the subject matter thereof.
12 7.2 Because of its status as an independent contractor, ATTORNEY, includin
13 any and all of ATTORNEY's officers, agents, and employees, shall have absolutely no
14 right to employment rights and benefits available to COUNTY employees. ATTORNEY
15 shall be solely liable and responsible for providing to, or on behalf of, its employees all
16 legally required employee benefits. In addition, ATTORNEY shall be solely responsible
17 and hold COUNTY harmless from all matters related to payment of ATTORNEY's
18 employees, including compliance with social security, withholding, and all other
ig regulations governing such matters. It is acknowledged that during the term of this
20 Agreement, ATTORNEY may be providing services to others unrelated to the COUNTY
21 or to this Agreement.
22 SECTION 8
23 HOLD HARMLESS
24 8.1 Each Contractor shall indemnify and hold harmless and defend the Count
(including its officers, agents, employees, including further the County's Director and the
25
County's Representative, and volunteers) against all claims, demands, injuries,
26
damages, costs, expenses (including attorney fees and costs), fines, penalties, and
27 liabilities of any kind to the County, the Contractor, any other Contractors, or any third
28 party that arise from or relate to any actual or alleged negligent or wrongful acts, errors
-7-
or omissions of the Contractor (or any of its officers, agents, subcontractors, employees,
1
or volunteers), including the performance, or failure to perform, by Contractor (or any of
2
its officers, agents, subcontractors, employees, or volunteers), under this Agreement.
3
The County may conduct or participate in its own defense without affecting the
4 Contractor's obligation to indemnify and hold harmless or defend the County.
5 8.2 This Section 8 survives the termination of this Agreement.
6
SECTION 9
7
INSURANCE
8
Without limiting the COUNTY's right to obtain indemnification from ATTORNEY
9
or any third parties, ATTORNEY, at its sole expense, shall maintain in full force and
10
effect, the following insurance policies or a program of self-insurance.
11
9.1 Professional Liability
12
ATTORNEY shall maintain Professional Liability Insurance with limits of
13
not less than one million dollars ($1,000,000.00) per occurrence and three million
14
dollars ($3,000,000.00) annual aggregate. ATTORNEY shall provide COUNTY with
15
written evidence of such coverage. This coverage may be issued on a per claim basis.
16
If so, ATTORNEY agrees that it shall maintain, at its sole expense, so-called "tail
17
coverage" in full force and effect for a period of three (3) years following the termination
18
of this Agreement, which shall be one or more policies of professional liability insurance
19
with limits of coverage as specified herein.
20
9.2 Automobile Liability
21
Comprehensive Automobile Liability Insurance with limits of not less than One
22
Million Dollars ($1,000,000.00) per accident for bodily injury and for property damages.
23
Coverage should include any auto used in connection with this Agreement.
24
9.3 Commercial General Liability
25
ATTORNEY shall maintain Commercial General Liability Insurance with
26
limits of not less than two million dollars ($2,000,000.00) per occurrence and an annual
27
aggregate of four million dollars ($4,000,000.00). This policy shall be issued on a per-
28
occurrence basis. COUNTY may require specific coverage including completed
-8-
i operations, product liability, contractual liability, explosion-collapse-underground liability,
2 fire legal liability, or any other liability insurance deemed necessary because of the
3 nature of the contract.
4 9.4 Workers' Compensation
s ATTORNEY shall maintain a policy of Workers' Compensation insurance
6 as may be required by the California Labor Code.
a SECTION 10
9 ADDITIONAL INSURANCE TERMS
10 10.1 ATTORNEY shall obtain endorsements to the Commercial General
>> Liability insurance naming the County of Fresno, its officers, agents, and employees,
12 individually and collectively, as additional insured, but only insofar as the operations
13 under this Agreement are concerned. Such coverage for additional insured shall apply
14 as primary insurance and any other insurance, or self-insurance, maintained by County,
15 its officers, agents and employees shall be excess only and not contributing with
16 insurance provided under ATTORNEY's policies herein. This insurance shall not be
17 cancelled or changed without a minimum of thirty (30) days advance written notice
18 given to COUNTY.
19 10.2 ATTORNEY hereby waives its right to recover from COUNTY, its officers,
20 agents, and employees any amounts paid by the policy of worker's compensation
21 insurance required by this Agreement. ATTORNEY is solely responsible to obtain any
22 endorsement to such policy that may be necessary to accomplish such waiver of
23 subrogation, but ATTORNEY's waiver of subrogation under this paragraph is effective
24 whether or not ATTORNEY obtains such an endorsement.
25 10.3 Within thirty (30) days from the date ATTORNEY executes this
26 Agreement, ATTORNEY shall provide certificates of insurance and endorsement as
27 stated above for all of the foregoing policies, as required in Section 9 herein, to
28 COUNTY, Human Resources Department, Risk Management Division, stating that such
-9-
I insurance coverage has been obtained and is in full force and effect; that the County of
2 Fresno, its officers, agents and employees will not be responsible for any premiums on
3 the policies; that for such worker's compensation insurance the ATTORNEY has waived
4 its right to recover from the COUNTY, its officers, gents, and employees any amounts
s paid under the insurance policy and that waiver does not invalidate the insurance policy;
6 that such Commercial General Liability insurance names the COUNTY, its officers,
7 agents and employees, individually and collectively, as additional insured, but only
8 insofar as the operations under this Agreement are concerned; that such coverage for
9 additional insured shall apply as primary insurance and any other insurance, or self-
10 insurance, maintained by COUNTY, its officers, agents and employees, shall be excess
i i only and not contributing with insurance provided under ATTORNEY's policies herein;
12 and that this insurance shall not be cancelled or changed without a minimum of thirty
13 (30) days advance, written notice given to COUNTY.
14 10.3 In the event ATTORNEY fails to keep in effect at all times insurance
15 coverage as herein provided, the COUNTY may, in addition to other remedies it may
16 have, suspend or terminate this Agreement upon the occurrence of such event.
17 10.4 All policies shall be with admitted insurers licensed to do business in the
18 State of California. Insurance purchased shall be purchased from companies
19 possessing a current A.M. Best, Inc. rating of A, FSC VII or better.
20 SECTION 11
21 AGREEMENT BINDING ON SUCCESSORS
22 11.1 This Agreement shall be binding upon COUNTY and ATTORNEY and
23 their successors, executors, administrators, legal representatives, and assigns with
24 respect to all the covenants and conditions set forth herein.
25 SECTION 12
26 ASSIGNMENT AND SUBCONTRACTING
27 12.1 Neither party hereto shall assign, transfer, or sub-contract neither this
28 Agreement nor its rights nor duties hereunder without the written consent of the other.
-10-
1 County Risk Manager, or his or her designee, may give such consent on behalf of the
2 COUNTY, provided however, the assignee, transferee or sub-contractor shall carry
3 insurance of a type and in an amount that is acceptable to COUNTY's Risk Manager, or
4 his or her designee.
s SECTION 13
6 AMENDMENTS
7 13.1 This Agreement may be amended only in writing signed by the Parties
8 hereto.
9 SECTION 14
10 CONFLICT OF INTEREST
11 14.1 ATTORNEY promises, covenants, and warrants that the performance of
12 their services and representation of COUNTY under this Agreement do not result in a
13 "conflict of interest" as that term is used in the Rules of Professional Conduct of the
14 State Bar of California. In the event a "conflict of interest" occurs, ATTORNEY will
15 request that COUNTY waive such "conflict of interest" on a case-by-case basis. If the
16 COUNTY does not waive the conflict, ATTORNEY must resolve the conflicting issue in
17 the favor of COUNTY.
18 SECTION 15
19 FURTHER ASSURANCES BY ATTORNEYS
20 15.1 ATTORNEY represents that it has read and is familiar with Government
21 Code Section 1090 et seq. and Section 87100 et seq. ATTORNEY promises,
22 covenants, and warrants that the performance of its services under this Agreement shall
23 not result in or cause a violation of Government Code Section 1090 et seq. and Section
24 87100 et seq.
25 SECTION 16
26 COMPLIANCE WITH LAWS
27
28
-11-
1 16.1 ATTORNEY shall comply with all federal, state, and local laws and
2 regulations applicable to the performance of its obligations under this Agreement and
3 maintain all licenses as required in the performance of its duties.
4 SECTION 17
5 HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT
6 17.1 ATTORNEY shall comply with all provisions of Exhibit B of this
7 Agreement, titled "Health Insurance and Accountability Act (HIPAA)."
8 SECTION 18
9 GOVERNING LAW
10 18.1 The rights and obligations of the parties and all interpretations and
11 performance of this Agreement shall be governed in all respects by the laws of the State
12 of California.
13 18.2 Venue for any action arising out of or related to this Agreement shall only
14 be in Fresno County, California.
15 SECTION 19
16 DISCLOSURE OF SELF-DEALING TRANSACTIONS
17 19.1 This provision is only applicable if the ATTORNEY is operating as a
18 corporation (a for-profit or non-profit corporation) or if, during the term of the agreement,
19 the ATTORNEY changes its status to operate as a corporation.
20 19.2 Members of the ATTORNEY'S Board of Directors shall disclose any self-
21 dealing transactions that they are a party to while ATTORNEY is providing goods or
22 performing services under this agreement. A self-dealing transaction shall mean a
23 transaction to which the ATTORNEY is a party and in which one or more of its directors
24 has a material financial interest. Members of the Board of Directors shall disclose any
25 self-dealing transactions that they are a party to by completing and signing a Self-
26 Dealing Transaction Disclosure Form, attached hereto as Exhibit C and incorporated
27 herein by reference, and submitting it to the COUNTY prior to commencing with the self
28 dealing transaction or immediately thereafter.
-12-
I SECTION 20
2 NOTICES
3 20.1 The persons and their addresses having authority to give and receive
4 notices under this Agreement include the following:
s COUNTY ATTORNEY
6 County of Fresno Litigation Engineered
7 ATTN: Hollis Magill ATTN: Chester Walls
Director of Human Resources 1300 E. Shaw Ave, Suite 125
8 2220 Tulare Street, 16th Floor Fresno, CA 93710
9 Fresno, CA 93721
20.2 All notices between the COUNTY and ATTORNEY provided for or
10
permitted under this Agreement must be in writing and delivered either by person
12
service, by first-class United States mail, by an overnight commercial courier service, or
13 by telephonic facsimile transmission. A notice delivered by personal service is effective
14 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
is
16
prepaid, addressed to the recipient. A notice delivered by an overnight commercial
17 courier service is effective one COUNTY business day after deposit with the overnight
18
commercial courier service, delivery fees prepaid, with delivery instructions given for
19
next day delivery, addressed to the recipient. A notice delivered by telephonic facsimile
zo is effective when transmission to the recipient is completed (but, if such transmission is
21
completed outside of COUNTY business hours, then such delivery shall be deemed to
22
be effective at the next beginning of a COUNTY business day), provided that the sender
23 maintains a machine record of the completed transmission. For all claims arising out of
24 or related this this Agreement, nothing in this section establishes, waives, or modifies
2s
any claims presentation requirements or procedures provided by law, including but not
26
limited to the Government Claims Act (Division 3.6 of Title 1 of the Government Code,
27
beginning with section 810).
SECTION 21
28
-13-
I ELECTRONIC SIGNATURE
2 21.1 The parties agree that this Agreement may be executed by electronic
3 signature as provided in this section. An "electronic signature" means any symbol or
4 process intended by an individual signing this Agreement to represent their signature,
s including but not limited to (1) a digital signature; (2) a faxed version of an original
6 handwritten signature; or (3) an electronically scanned and transmitted (for example by
7 PDF document) of a handwritten signature. Each electronic signature affixed or
8 attached to this Agreement (1) is deemed equivalent to a valid original handwritten
9 signature of the person signing this Agreement for all purposes, including but not limited
io to evidentiary proof in any administrative or judicial proceeding, and (2) has the same
i i force and effect as the valid original handwritten signature of that person. The
12 provisions of this section satisfy the requirements of Civil Code section 1633.5,
13 subdivision (b), in the Uniform Electronic Transaction Act (Civil Code, Division 3, Part 2,
14 Title 2.5, beginning with section 1633.1). Each party using a digital signature
15 represents that it has undertaken and satisfied the requirements of Government Code
16 section 16.5, subdivision (a), paragraphs (1) through (5), and agrees that each other
17 party may rely upon that representation. This Agreement is not conditioned upon the
18 parties conducting the transactions under it by electronic means and either party may
i9 sign this Agreement with an original handwritten signature.
20 SECTION 22
21 ENTIRE AGREEMENT
22 22.1 This Agreement, and any and all documents referred to or otherwise
23 incorporated by reference herein, constitutes the entire Agreement between COUNTY
24 and ATTORNEY with respect to the specialized legal services to be provided herein an
25 supersedes any previous Agreement concerning the subject matter hereof,
26 negotiations, proposals, commitments, writings, or understandings of any nature
27 whatsoever unless expressly included in this Agreement.
28
-14-
1 22.2 If any part of this Agreement is found violative of any law or is found to be
2 otherwise legally defective, ATTORNEY and COUNTY shall use their best efforts to
3 replace that part of this Agreement with legal terms and conditions most readily
4 approximating the original intent of the parties.
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-15-
I IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
2 executed as of the day and year first above written.
3
ATTORNEY: COUNTY OF FRESNO
4
5 —
(Authorized Signature) Nathan Magsig, Chairman of the
6 Board of Supervisors of the
7 County of Fresno
8 Chester E. Walls, sole proprietor
9 Print Name &Title
1300 E. Shaw Ave., Suite 125
10 Mailing Address
Fresno, CA 93710
11 City, State, ZIP ATTEST:
Bernice E. Seidel
12 Clerk of the Board of Supervisors
County of Fresno, State of
13 California
14 By:
15 Deputy
16
17
18
19
20
FOR ACCOUNTING USE ONLY:
21
ORG No.: 89250100
22
Account No.: 7100
23
Fund: 1060
24
Subclass: 10000
25
Requisition No.: 8922500148
26
27
28
-16-
I EXHIBIT A
2 Compensation
3
4 County shall compensate Attorney as follows:
5 Other Services
6 Attorney Rate- Chester Walls $235/hour
7 Attorney Rate $195/hour
Paralegal $135/hour
8 Law Clerk $125/hour
9 Necessary travel time charged at one-half of applicable hourly rate, however no travel
10 within the Cities of Fresno or Clovis shall be charged to or payable by COUNTY.
i i Costs and Expenses
12
13 Extraordinary postage or Actual Cost
overnight delivery when
14 expedited delivery is reasonably necessary
15 Reasonably necessary costs incurred for the Actual Cost
16 following:
17 • Court filing fees
18
• Courtcall expenses
• Attorney services (includes service of process fees, arbitrators, and mediators)
19 • Messenger services
• Westlaw research outside of our prepaid service fee
200 Fed-ex, On-Trac Overnight, or other one-day delivery services
21 • Reasonable travel expenses and parking fees for court appearances,
depositions, arbitrations, mediations, and other necessary appointments
22 . Any other expenses not listed above that becomes necessary for the successful
23 resolution of a particular litigation matter, as pre-approved in writing by the
Department of Human Resources, Risk Management.
24
25
26
27
28
-17-
EXHIBIT B
1
2 Health Insurance Portability and Accountability Act (HIPAA)
3 1. The County is a "Covered Entity," and the Contractor is a "Business
Associate," as these terms are defined by 45 CFR 160.103. In connection with providing
4 services under the Agreement, the parties anticipate that the Contractor will create
5 and/or receive Protected Health Information ("PHI") from or on behalf of the County. The
parties enter into this Business Associate Agreement (BAA) to comply with the Business
6 Associate requirements of HIPAA, to govern the use and disclosures of PHI under this
7 Agreement. "HIPAA Rules" shall mean the Privacy, Security, Breach Notification, and
Enforcement Rules at 45 CFR Parts 160 and 164.
8 The parties to this Agreement shall be in strict conformance with all applicable
9 federal and State of California laws and regulations, including, but not limited to
10 California Welfare and Institutions Code sections 5328, 10850, and 14100.2 et seq.;
42 CFR 2; 42 CFR 431; California Civil Code section 56 et seq.; the Health
11 Insurance Portability and Accountability Act of 1996, as amended ("HIPAA"),
12 including, but not limited to, 45 CFR Parts160, 45 CFR 162, and 45 CFR 164; the
Health Information Technology for Economic and Clinical Health Act ("HITECH")
13 regarding the confidentiality and security of patient information, including, but not
14 limited to 42 USC 17901 et seq.; and the Genetic Information Nondiscrimination Act
("GINA") of 2008 regarding the confidentiality of genetic information.
15
Except as otherwise provided in this Agreement, the Contractor, as a business
16 associate of the County, may use or disclose Protected Health Information ("PHI") to
17 perform functions, activities or services for or on behalf of the County, as specified in
this Agreement, provided that such use or disclosure shall not violate HIPAA Rules. The
18 uses and disclosures of PHI may not be more expansive than those applicable to the
19 County, as the "Covered Entity" under the HIPAA Rules, except as authorized for
20
management, administrative or legal responsibilities of the Contractor.
2. The Contractor, including its subcontractors and employees, shall protect
21 from unauthorized access, use, or disclosure of names and other identifying
22 information, including genetic information, concerning persons receiving services
pursuant to this Agreement, except where permitted in order to carry out data
23 aggregation purposes for health care operations [45 CFR §§ 164.504(e)(2)(i),
24 164.504(e)(2)(ii)(A), and 164.504(e)(4)(i)]. This pertains to any and all persons
receiving services pursuant to a County-funded program. This requirement applies to
25 electronic PHI. The Contractor shall not use such identifying information or genetic
26 information for any purpose other than carrying out the Contractor's obligations under
27 this Agreement.
3. The Contractor, including its subcontractors and employees, shall not
28 disclose any such identifying information or genetic information to any person or entity,
-18-
except as otherwise specifically permitted by this Agreement, authorized by Subpart E
of 45 CFR Part 164 or other law, required by the Secretary of the United States
2 Department of Health and Human Services ("Secretary"), or authorized by the
3 client/patient in writing. In using or disclosing PHI that is permitted by this Agreement or
authorized by law, the Contractor shall make reasonable efforts to limit PHI to the
4 minimum necessary to accomplish intended purpose of use, disclosure or request.
5
6 4. For purposes of the above sections, identifying information shall include,
but not be limited to, name, identifying number, symbol, or other identifying particular
7 assigned to the individual, such as fingerprint or voiceprint, or photograph.
s 5. For purposes of the above sections, genetic information shall include
9
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
10 genetic services by individual or family members. Family member means a dependent
11 or any person who is first, second, third, or fourth degree relative.
6. The Contractor shall provide access, at the request of the County, and in
12 the time and manner designated by the County, to PHI in a designated record set (as
13 defined in 45 CFR § 164.501), to an individual or to COUNTY in order to meet the
requirements of 45 CFR § 164.524 regarding access by individuals to their PHI. With
14 respect to individual requests, access shall be provided within thirty (30) days from
15 request. Access may be extended if the Contractor cannot provide access and provide
the individual with the reasons for the delay and the date when access may be granted.
16 PHI shall be provided in the form and format requested by the individual or the County.
17 The Contractor shall make any amendment(s) to PHI in a designated record set
1s at the request of the County or individual, and in the time and manner designated by the
County in accordance with 45 CFR § 164.526.
19 The Contractor shall provide to the County or to an individual, in a time and
20 manner designated by the County, information collected in accordance with 45 CFR §
164.528, to permit the County to respond to a request by the individual for an
21 accounting of disclosures of PHI in accordance with 45 CFR § 164.528.
22 7. The Contractor shall report to the County, in writing, any knowledge or
reasonable belief that there has been unauthorized access, viewing, use, disclosure,
23 security incident, or breach of unsecured PHI not permitted by this Agreement of which
24 the Contractor becomes aware, immediately and without reasonable delay and in no
2s
case later than two (2) business days of discovery. Immediate notification shall be
made to the County's Information Security Officer and Privacy Officer and the County's
26 Department of Public Health ("DPH") HIPAA Representative, within two (2) business
27 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
28 been, accessed, acquired, used, disclosed, or breached. The Contractor shall take
-19-
prompt corrective action to cure any deficiencies and any action pertaining to such
unauthorized disclosure required by applicable federal and State laws and regulations.
2 The Contractor shall investigate such breach and is responsible for all notifications
3 required by law and regulation or deemed necessary by the County and shall provide a
written report of the investigation and reporting required to the County's Information
4 Security Officer and Privacy Officer and the County's DPH HIPAA Representative.
5 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
6 addresses below:
7 County of Fresno County of Fresno County of Fresno
s
Department of Public Department of Public Department of Internal
Health Health Services
9 HIPAA Representative Privacy Officer Information Security
10 (559) 600-6439 (559) 600-6405 Officer
P.O. Box 11867 P.O. Box 11867 (559) 600-5800
11 Fresno, California 93775 Fresno, California 93775 2048 North Fine Street
12 Fresno, California 93727
8. The Contractor shall make its internal practices, books, and records
13 relating to the use and disclosure of PHI received from the County, or created or
14 received by the Contractor on behalf of the County, in compliance with Parts the HIPAA
Rules. The Contractor shall make its internal practices, books, and records relating to
1s the use and disclosure of PHI received from the County, or created or received by the
16 Contractor on behalf of the County, available to the Secretary upon demand.
17 The Contractor shall cooperate with the compliance and investigation reviews
conducted by the Secretary. PHI access to the Secretary must be provided during the
1s Contractor's normal business hours; however, upon exigent circumstances access at
19 any time must be granted. Upon the Secretary's compliance or investigation review, if
20
PHI is unavailable to the Contractor and in possession of a subcontractor of the
Contractor, the Contractor must certify to the Secretary its efforts to obtain the
21 information from the subcontractor.
22 9. Safeguards
The Contractor shall implement administrative, physical, and technical
23 safeguards as required by the HIPAA Security Rule, Subpart C of 45 CFR Part 164, that
24 reasonably and appropriately protect the confidentiality, integrity, and availability of PHI,
including electronic PHI, that it creates, receives, maintains or transmits on behalf of the
25 County and to prevent unauthorized access, viewing, use, disclosure, or breach of PHI
26 other than as provided for by this Agreement. The Contractor shall conduct an accurate
and thorough assessment of the potential risks and vulnerabilities to the confidentiality,
27 integrity and availability of electronic PHI. The Contractor shall develop and maintain a
28 written information privacy and security program that includes administrative, technical
-20-
and physical safeguards appropriate to the size and complexity of the Contractor's
operations and the nature and scope of its activities. Upon the County's request, the
2 Contractor shall provide the County with information concerning such safeguards.
3 The Contractor shall implement strong access controls and other security
safeguards and precautions in order to restrict logical and physical access to
4 confidential, personal (e.g., PHI) or sensitive data to authorized users only. Said
s safeguards and precautions shall include the following administrative and technical
password controls for all systems used to process or store confidential, personal, or
6 sensitive data:
7 A. Passwords must not be:
s
(1) Shared or written down where they are accessible or recognizable by
anyone else, such as taped to computer screens, stored under
9 keyboards, or visible in a work area;
10 (2) A dictionary word; or
(3) Stored in clear text
11 B.
12
Passwords must be:
13 (1) Eight (8) characters or more in length;
14 (2) Changed every ninety (90) days;
(3) Changed immediately if revealed or compromised; and
1s (4) Composed of characters from at least three (3) of the following four (4)
16 groups from the standard keyboard:
17 a) Upper case letters (A-Z);
b) Lowercase letters (a-z);
18 c) Arabic numerals (0 through 9); and
19 d) Non-alphanumeric characters (punctuation symbols).
The Contractor shall implement the following security controls on each
20 workstation or portable computing device (e.g., laptop computer) containing confidential,
21 personal, or sensitive data:
1. Network-based firewall and/or personal firewall;
22 2. Continuously updated anti-virus software; and
23 3. Patch management process including installation of all operating
24 system/software vendor security patches.
The Contractor shall utilize a commercial encryption solution that has received
25 FIPS 140-2 validation to encrypt all confidential, personal, or sensitive data stored on
26 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
27 computers).
28 The Contractor shall not transmit confidential, personal, or sensitive data via e-
_21_
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
2 conforming to the Advanced Encryption Standard (AES) Algorithm. The Contractor
3 must apply appropriate sanctions against its employees who fail to comply with these
safeguards. The Contractor must adopt procedures for terminating access to PHI when
4 employment of employee ends.
5 10. Mitigation of Harmful Effects
The Contractor shall mitigate, to the extent practicable, any harmful effect that is
6 suspected or known to the Contractor of an unauthorized access, viewing, use,
7 disclosure, or breach of PHI by the Contractor or its subcontractors in violation of the
8
requirements of these provisions. The Contractor must document suspected or known
harmful effects and the outcome.
9 11. The Contractor's Subcontractors
10 The Contractor shall ensure that any of its contractors, including subcontractors,
if applicable, to whom the Contractor provides PHI received from or created or received
11 by the Contractor on behalf of the County, agree to the same restrictions, safeguards,
and conditions.
12
that apply to the Contractor with respect to such PHI and to incorporate, when
13 applicable, the relevant provisions of these provisions into each subcontract or sub-
14 award to such agents or subcontractors.
Nothing in this section 11 or this Exhibit G authorizes the Contractor to perform
15 services under this Agreement using subcontractors.
16 12. Employee Training and Discipline
The Contractor shall train and use reasonable measures to ensure compliance
17 with the requirements of these provisions by employees who assist in the performance
is of functions or activities on behalf of the County under this Agreement and use or
19 disclose PHI, and discipline such employees who intentionally violate any provisions of
these provisions, which may include termination of employment.
20 13. Termination for Cause
21 Upon the County's knowledge of a material breach of these provisions by
the Contractor, the County will either:
22 A. Provide an opportunity for the
23 Contractor to cure the breach or end the violation, and the County may terminate this
Agreement if the Contractor does not cure the breach or end the violation within the
24 time specified by the County; or
25 B. Immediately
terminate this Agreement if the Contractor has breached a material term of this Exhibit
26 G and cure is not possible, as determined by the County.
27 C. If neither cure nor termination is feasible, the County's
28 Privacy Officer will report the violation to the Secretary of the U.S. Department of Health
and Human Services.
-22-
14. Judicial or Administrative Proceedings
The County may terminate this Agreement if: (1) the Contractor is found
2 guilty in a criminal proceeding for a violation of the HIPAA Privacy or Security Laws or
3 the HITECH Act; or (2) there is a finding or stipulation in an administrative or civil
proceeding in which the Contractor is a party that the Contractor has violated a privacy
4 or security standard or requirement of the HITECH Act, HIPAA or other security or
5 privacy laws.
15. Effect of Termination
6 Upon termination or expiration of this Agreement for any reason, the Contractor
7 shall return or destroy all PHI received from the County (or created or received by the
s
Contractor on behalf of the County) that the Contractor still maintains in any form, and
shall retain no copies of such PHI. If return or destruction of PHI is not feasible, the
9 Contractor shall continue to extend the protections of these provisions to such
10 information, and limit further use of such PHI to those purposes that make the return or
destruction of such PHI infeasible. This provision applies to PHI that is in the
11 possession of subcontractors or agents, if applicable, of the Contractor. If the
12 Contractor destroys the PHI data, a certification of date and time of destruction shall be
provided to the County by the Contractor.
13 16. Compliance with Other Laws
14 To the extent that other state and/or federal laws provide additional, stricter and/or more
protective privacy and/or security protections to PHI or other confidential information
15 covered under this BAA, the Contractor agrees to comply with the more protective of the
16 privacy and security standards set forth in the applicable state or federal laws to the
extent such standards provide a greater degree of protection and security than HIPAA
17 Rules or are otherwise more favorable to the individual.
15 17. Disclaimer
The County makes no warranty or representation that compliance by the
19 Contractor with these provisions, the HITECH Act, or the HIPAA Rules, will be adequate
20 or satisfactory for the Contractor's own purposes or that any information in the
21 Contractor's possession or control, or transmitted or received by the Contractor, is or
will be secure from unauthorized access, viewing, use, disclosure, or breach. The
22 Contractor is solely responsible for all decisions made by the Contractor regarding the
23 safeguarding of PHI.
18. Amendment
24 The parties acknowledge that Federal and State laws relating to electronic data
25 security and privacy are rapidly evolving and that amendment of this Exhibit G may be
required to provide for procedures to ensure compliance with such developments. The
26 parties specifically agree to take such action as is necessary to amend this agreement
27 in order to implement the standards and requirements of the HIPAA Rules, the HITECH
Act and other applicable laws relating to the security or privacy of PHI. The County ma
28 terminate this Agreement upon thirty (30) days written notice in the event that the
-23-
Contractor does not enter into an amendment providing assurances regarding the
1
safeguarding of PHI that the County in its sole discretion, deems sufficient to satisfy the
2 standards and requirements of the HIPAA Rules, and the HITECH Act.
3 19. No Third-Party Beneficiaries
Nothing expressed or implied in the provisions of this Exhibit G is intended to
4 confer, and nothing in this Exhibit G does confer, upon any person other than the
5 County or the Contractor and their respective successors or assignees, any rights,
remedies, obligations or liabilities whatsoever.
6 20. Interpretation
7 The provisions of this Exhibit G shall be interpreted as broadly as necessary to
s
implement and comply with the HIPAA Rules, and applicable State laws. The parties
agree that any ambiguity in the terms and conditions of these provisions shall be
9 resolved in favor of a meaning that complies and is consistent with the HIPAA Rules.
10 21. Regulatory References
A reference in the terms and conditions of these provisions to a section in the
11 HIPAA Rules means the section as in effect or as amended.
12 22. Survival
The respective rights and obligations of the Contractor as stated in this Exhibit G
13 survive the termination or expiration of this Agreement.
14 23. No Waiver of Obligation
15 Change, waiver or discharge by the County of any liability or obligation of the
16 Contractor
under this Exhibit G on any one or more occasions is not a waiver of performance of
17 any continuing or other obligation of the Contractor and does not prohibit enforcement
18 by the County of any obligation on any other occasion.
19
20
21
22
23
24
25
26
27
28
-24-
I EXHIBIT C
2
Self-Dealing Transaction Disclosure Form
3
In order to conduct business with the County of Fresno ("County"), members of a
4 contractor's board of directors ("County Contractor"), must disclose any self-dealing
5 transactions that they are a party to while providing goods, performing services, or both
for the County. A self-dealing transaction is defined below:
6
"A self-dealing transaction means a transaction to which the corporation is a
7 party and in which one or more of its directors has a material financial interest."
8 The definition above will be used for purposes of completing this disclosure form.
9 Instructions
10 (1) Enter board member's name, job title (if applicable), and date this disclosure is
11 being made.
12 (2) Enter the board member's company/agency name and address.
13 (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:
14
a. The name of the agency/company with which the corporation has the
15 transaction; and
16 b. The nature of the material financial interest in the Corporation's
transaction that the board member has.
17
(4) Describe in detail why the self-dealing transaction is appropriate based on
18 applicable provisions of the Corporations Code.
19
The form must be signed by the board member that is involved in the self-dealing
20 transaction described in Sections (3) and (4).
21
22
23
24
25
26
27
28
-25-
1 (1)Company Board Member Information:
Name: Date:
2 Job Title:
3 (2)Company/Agency Name and Address:
4
5
6
7
8 (3)Disclosure(Please describe the nature of the self-dealing transaction you are a party to)
9
10
11
12
13
14
(4)Explain why this self-dealing transaction is consistent with the requirements of Corporations Code§5233(a)
15
16
17
18
19
20
21 (5)Authorized Signature
22 Signature: Date:
23
24
25
26
27
28
-26-