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HomeMy WebLinkAboutFD Temporary Billing AssistanceAEROTEK SERVICES AGREEMENT THIS SERVICES AGREEMENT ("Agreement") is made this 29th day of February, 2016, by and between AEROTEK, INC., a Maryland corporation, ("AEROTEK"), and City of San Rafael ("Client"). BACKGROUND AEROTEK is engaged in the supplemental staffing services business providing contract personnel to customers with staffing needs. Client desires to engage AEROTEK to provide supplemental staffing services and AEROTEK desires to be engaged by Client, all on the terms and conditions of this Agreement. As used herein, the term "Contract Employee" means an AEROTEK employee temporarily placed with the Client pursuant to this Agreement. NOW, THEREFORE, in consideration of the premises and mutual promises contained herein, the parties agree as follows: 1. TERM: This Agreement shall commence on the date this Agreement is executed by all parties, and continue for an initial term of one (1) year, and shall continue thereafter on a month-to- month basis unless earlier terminated as provided herein. This Agreement may be terminated by either party upon thirty (30) days prior written notice. 2. CONTRACT EMPLOYEES: 2.1. SERVICES: AEROTEK shall provide to Client one or more Contract Employees as requested by Client from time to time. Such Contract Employees shall provide services under Client's management and supervision at a facility or in an environment controlled by Client. Attached hereto as Exhibit A. is a list of the names of the Contract Employee(s) to be placed initially with Client, standard and overtime hourly billing rates for each Contract Employee, and the starting date for each Contract Employee. Unless otherwise agreed by the parties, this Agreement shall apply to additional Contract Employees provided by AEROTEK as requested by Client hereunder from time to time. Should Client request additional services subsequent to the execution of this Agreement, and such services are not listed on Exhibit A attached hereto, or should either Client or AEROTEK request changes to hourly billing rates or other terms for any Contract Employee working under the terms of this Agreement, any such additions or changes will be mutually agreed to in writing by both parties. Such agreed upon terms shall become a part of this Agreement, as amended. 2.2. DUTIES: It shall be the Client's responsibility to control, manage and supervise the work of the Contract Employees assigned to Client pursuant to this Agreement. The Contract Employees shall perform only the duties and functions of the specific jobs set forth opposite the Contract Employee's name on Exhibit A or on the job description attached to this Agreement. In no event shall any Contract Employee be assigned or permitted to perform any other duties or functions other than those specified in Exhibit A for Client without the express written consent of AEROTEK. Should Client assign the Contract Employee to perform the duties or functions of a position not listed in Exhibit A or within the job description attached hereto, AEROTEK may, in its sole and absolute discretion, deem this Agreement breached by Client and take whatever action it deems necessary or appropriate. In this event, Client shall be liable to AEROTEK, and indemnify AEROTEK for all claims, damages, losses or expenses relating to such breach, as well as all hours worked by the Contract Employees. Client agrees that it will not permit any Contract Employee to (i) handle cash, negotiable instruments or other valuables without AEROTEK's written consent (and then only under Client's direct supervision), or (ii) transport or convey money, securities or negotiable instruments for Client (including, but not limited to, delivering bank deposits to a bank or other institution). 3. INDEPENDENT CONTRACTOR STATUS: With respect to the services provided by AEROTEK, AEROTEK shall be an independent contractor. AEROTEK shall provide any salary or other benefits to such Contract Employees; will make all appropriate tax, social security, Medicare and other withholding deductions and payments; will provide worker's compensation insurance coverage for its Contract Employees; and will make all appropriate unemployment tax payments. 4. TIME RECORDS AND INVOICES: AEROTEK Time and Expense shall be the official time record for purposes of payment herein. AEROTEK shall submit weekly invoices to Client for services rendered by Contract Employee(s) for the number of hours worked by Contract Employee(s) the previous week. Overtime will be billed at the rates listed on Exhibit A, or as otherwise agreed by both parties, for hours worked by Contract Employee(s) in excess of forty (40) hours per week, or as otherwise required by law. For weeks that have one (1) National or client observed holiday, overtime rates shall be billed for hours worked in excess of thirty-two (32) hours per week. The number of hours billed by AEROTEK shall be supported by a time card or other time record approved by a representative of the Client. Client is solely responsible for ensuring that information submitted to AEROTEK regarding hours worked by Contract Employee(s) is timely and accurate. In the event Client or Client's Representative fails to timely or accurately affirm the hours worked by Contract Employees or provide adequate systems or reporting to account for all hours, Client shall be liable to AEROTEK, and indemnify AEROTEK for all claims, damages, losses or expenses relating to such breach, as well as all hours worked by the Contract Employees. Invoices submitted by AEROTEK to Client are presumed to be accurate and fully payable on the terms contained therein unless disputed by Client within five (5) business days of Client's receipt of the invoice. 5. PAYMENT DEFAULT: Payment in full for invoices via check or EFT shall be due within fifteen (15) days from invoice date, at AEROTEK, 3689 Collection Ctr. Dr., Chicago, Illinois 60693 Invoices that are more than seven (7) days past due are subject to a late charge of one percent (1%) per month on the amount of the past due balance. Late charges shall be calculated using the U.S. Method, therefore interest will not be compounded on the past due balance. If the Client's account is past due or Client has exceeded AEROTEK's established credit limit, AEROTEK shall notify Client verbally or in writing of such occurrence. Upon such notice, AEROTEK may, without additional notice, immediately cease providing any and all further Contract Employee services without any liability to Client for interruption or stoppage of pending work. In addition, the parties agree that in the ordinary course of business AEROTEK may, in its sole discretion, apply payments made by Client to any outstanding Client invoice, notwithstanding any direction by Client regarding application of the payment. In the event that there are subsidiaries and/or affiliates of Client that are subject to the terms of this Agreement, and those subsidiaries and/or affiliates become delinquent or are unable to pay AEROTEK according to the terms contained herein, Client shall be liable to AEROTEK for payment of any and all outstanding invoices owed by the subsidiaries and/or affiliates. 6. EXPENSES: Client shall reimburse AEROTEK for all ordinary, necessary, and reasonable travel expenses incurred by Contract Employee(s) while performing services on behalf of Client that require Contract Employee to travel away from Client's primary job site. Client agrees to accept legible copies of receipts (or electronic copies, if billed electronically) as the supporting documentation needed to pay the expense amount on the invoice. .3 Mli6EK,N. Rev 5/28/2015 7301 Parkway Drive Hanover, MD 21076 Page 1 of 6 AEROTEK 7. COLLECTION: If the Client's account, after default, is referred to an attorney or collection agency for collection, Client shall pay all of AEROTEK's expenses incurred in such collection efforts including, but not limited to, collection agency fees, court costs and reasonable attorneys' fees. Notwithstanding the terms of Section 15.10 of this Agreement AEROTEK may institute proceedings to seek a default judgment in any court of competent jurisdiction in the United States. B. PURCHASE ORDERS: Payment of AEROTEK invoices shall not be dependent upon a Client generated purchase order. If a purchase order is required pursuant to this Section, Client shall deliver to AEROTEK a written purchase order [NAdays/hours] before the first Contract Employee start date identified on Exhibit A. As stated in Section 15.7 herein, this Agreement and Exhibit A constitute the entire agreement between the parties. If there is any inconsistency or conflicting terms between this Agreement and a client purchase order, this Agreement shall prevail. If a purchase order is required pursuant to this paragraph, failure by Client to deliver said purchase order shall not release Client of its obligations contained in this Agreement. 9. RESTRICTIVE COVENANT: 9.1 RESTRICTIVE COVENANT - CONVERSION: AEROTEK is not an employment agency. Its services are provided at great expense to AEROTEK. In consideration thereof, during the term of this Agreement and for the twelve (12) month period immediately following the period for which a Contract Employee last performed services for the Client under this Agreement, Client shall not, directly or indirectly, for itself, or on behalf of any other person, firm, corporation or other entity, whether as principal, agent, employee, stockholder, partner, member, officer, director, sole proprietor, or otherwise, solicit, participate in or promote the solicitation of such Contract Employee to leave the employ of AEROTEK, or hire or engage such Contract Employee. If any Contract Employee provided by AEROTEK to Client is engaged by Client to perform services, either directly or indirectly, within twelve (12) months of that Contract Employees last day of work at Client through AEROTEK, the Client will pay AEROTEK, as liquidated damages, an amount equal to 30% of the Contract Employee's first year salary, including bonuses, with Client. 9.2 RESTRICTIVE COVENANT — RIGHT TO HIRE: Notwithstanding, the above Section 9.1, if Contract Employee has completed the minimum assignment duration at Client for AEROTEK, pursuant to Exhibit A, there will be no fee for directly hiring the Contract Employee. 9.3. ACCOUNT STATUS: If Client exercises its right to hire a Contract Employee at a time when Client is in breach of Section 5 of this Agreement or Client's account is otherwise not current or in good standing, Client agrees to pay the fee of 30% of the Contract Employee's first year salary, including bonuses with Client, even though the Contract Employee has completed the assignment duration outlined in the attached Exhibit A. 9.4. SUBMITTALS - RIGHT TO HIRE: Resumes submitted to Client are confidential and for Client use only. Client agrees that AEROTEK is the exclusive representative of all candidates for which resumes are submitted to Client by AEROTEK in response to Client requests. Accordingly, Client agrees that if any candidate submitted to Client by AEROTEK is engaged to perform services, either directly or indirectly, by Client within twelve (12) months of receipt of the resume, Client agrees to pay to AEROTEK as liquidated damages an amount equal to 30% of the employee's first year annual salary, including bonuses. 10. CONTRACT EMPLOYEE PERFORMANCE: Within the initial employment guarantee period as detailed in the attached Exhibit A from any Contract Employee(s) starting date, Client shall review the Contract Employee's performance and decide whether to continue the engagement of such Contract Employee. If Client is dissatisfied with the performance of the Contract Employee, and Client wishes AEROTEK to terminate its engagement of such Contract Employee, Client must notify AEROTEK within the initial period, specifying the reasons for its dissatisfaction, and Client shall not be required to pay for the hours worked by that Contract Employee during the initial period, provided its reasons for termination are not unlawful and are bona fide in AEROTEK reasonable judgment. If Client becomes dissatisfied with the performance of a Contract Employee after the initial period, Client may request that AEROTEK terminate the engagement of that Contract Employee upon written notice to AEROTEK, but Client shall pay for all hours worked by the terminated Contract Employee from the first hour of work up to and including the date of termination. 11. LIMITATION OF LIABILITY: AEROTEK does not warrant or guarantee that the Contract Employee(s) placed pursuant to this Agreement will produce any particular result or any solution to Client's particular needs, or perform services in any particular manner. Accordingly, Client acknowledges and agrees that AEROTEK is not responsible for any aspects of the Contract Employees work or the Client's project, including, without limitation, any deadlines or work product. Because AEROTEK is providing supplemental staffing services only, and Client is directing and supervising the Contract Employees who render these services, AEROTEK shall not be liable (i) for any claims, costs, expenses, damages, obligations or losses arising from or in connection with the acts or omission of any Contract Employee, including, but not limited to, work on engineering or design concepts or calculations or related drawings, software programs, designs or documentation, or (ii) for any indirect, special or consequential damages (including, but not limited to, loss of profits, interest, earnings or use) whether arising in contract, tort or otherwise. Client shall indemnify AEROTEK and hold it harmless against and from any such claims made or brought by third parties, including any and all costs incurred in connection with such claims. 12. CLIENT PROPERTY: 12.1. WORK PRODUCT: All work product of every kind performed by any Contract Employee on behalf of Client shall be the sole and exclusive property of Client. 12.2. DAMAGES: AEROTEK does not provide insurance coverage for any real or personal property of Client, including but not limited to machinery, equipment, computers, tools, vehicles or other real or personal property which is owned or leased by client. Accordingly, Client agrees that in the event it supplies, provides or otherwise allows Contract Employees to use or have access to any property of Client, (including but not limited to cell phones, laptop computers, tools, etc.), Client shall be solely responsible for any damage, theft, repair or loss associated with this property, and Client shall indemnify, hold harmless and defend AEROTEK against and from such claims made or brought for any damaged, stolen, or lost property of Client. 12.3. CONFIDENTIALITY: AEROTEK recognizes that while performing its duties under this Agreement, AEROTEK and its Contract Employees may be granted access to certain proprietary and confidential information regarding Client's business, customers. and employees. AEROTEK agrees to keep such information confidential and the obligations of this paragraph will survive the termination of this Agreement. This paragraph does not apply to information that was previously known or information that is available in the public domain. AEROTEK, INC. Rev 5/28/2015 7301 Parkway Drive Hanover, MD 21076 Page 2 of 6 AEROTEK 13. NOTICES: 13.1. MANNER: Any notice or other communication ("Notice") required or permitted under this Agreement shall be in writing and either delivered personally or sent by facsimile, overnight delivery, express mail, or certified or registered mail, postage prepaid, return receipt requested. 13.2. ADDRESSEE: A Notice shall be addressed, in the case of AEROTEK, to Assistant Controller—Midwest Region at: 7301 Parkway Dr. Hanover, MD 21076 or, in the case of Client, to 1039 C St., at San Rafael, CA 94901. If sent by facsimile, a Notice shall be sent to AEROTEK at (410) 579-3106 or to Client at (415) 485-3457. 13.3. DELIVERY: A Notice delivered personally shall be deemed given only if acknowledged in writing by the person to whom it is given. A Notice sent by facsimile shall be deemed given when transmitted; provided that the sender obtains written confirmation that the transmission was sent. A Notice sent by overnight delivery or express mail shall be deemed given twenty- four (24) hours after having been sent. A Notice that is sent by certified mail or registered mail shall be deemed given forty-eight (48) hours after it is mailed. If any time period in this Agreement commences upon the delivery of Notice to any one or more parties, the time period shall commence only when all of the required Notices have been deemed given. 13.4. CHANGES: Either party may designate, by Notice to the other, substitute addressees, addresses or facsimile numbers for Notices, and thereafter, Notices are to be directed to those substitute addresses, or facsimile numbers. 14. MISCELLANEOUS: 14.1. GOVERNING LAW: The laws of the State of California shall govern the validity and construction of this Agreement and any dispute arising out of or relating to this Agreement, without regard to the principles of conflict of laws. 14.2. SEVERABILITY: A ruling by any court that one or more of the provisions contained in this Agreement is invalid, illegal or unenforceable in any respect shall not affect any other provision of this Agreement so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Thereafter, this Agreement shall be construed as if the invalid, illegal, or unenforceable provision had been amended as originally contemplated by this Agreement to the greatest extent possible. 14.3. COUNTERPARTS: This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original. In that event, in providing this Agreement it shall not be necessary to produce or account for the counterpart signed by the party against whom the proof is being presented. 14.4. HEADINGS: The section and subsection headings have been included for convenience only, are not part of this Agreement and shall not be taken as an interpretation of any provision of this Agreement. 14.5. BINDING EFFECT: This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective heirs, legatees, personal representatives and other legal representatives, successors and permitted assigns. Except as otherwise specifically provided, this Agreement is not intended and shall not be construed to confer upon or to give any person other than the parties any rights or remedies. 14.6. AMENDMENTS AND MODIFICATIONS: Except for modifications to Exhibit A pursuant to Section 2 herein, this Agreement may be amended, waived, changed, modified or discharged only by an agreement in writing signed by all of the parties. 14.7. ENTIRE AGREEMENT: This Agreement and Exhibit A hereto constitutes the entire agreement between the parties, and there are no representations, warranties, covenants or obligations except as set forth in this Agreement. This Agreement supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, written or oral, of the parties, relating to any transaction contemplated by this Agreement. 14.8. WAIVER: Failure to insist upon strict compliance with any of the terms, covenants or conditions of this Agreement shall not be deemed a waiver of that term, covenant or condition or of any other term, covenant or condition of this Agreement. Any waiver or relinquishment of any right or power hereunder at any one or more times shall not be deemed a waiver or relinquishment of that right or power at any other time. 14.9. REMEDIES CUMULATIVE: The remedies set forth in this Agreement are cumulative and are in addition to any other remedies allowed at law or in equity. Resort to one form of remedy shall not constitute a waiver of alternate remedies. 14.10. ARBITRATION: Except as provided in Section 7 of this Agreement, all disputes, controversies or differences arising in connection with the validity, execution, performance, breach, non- renewal or termination of this Agreement shall be finally settled in an arbitration proceeding under the Rules of the American Arbitration Association by three arbitrators in accordance with the Commercial Arbitration Rules then in effect of the American Arbitration Association. Selection of the arbitrators shall be as follows: each party shall appoint one arbitrator within twenty (20) days after the parties have agreed to go to arbitration, and those two arbitrators shall appoint a third arbitrator who shall act as chairman, within a twenty (20) day period thereafter. If the parties fail to appoint the chairman within said period, the parties will apply to the American Arbitration Association for appointment of the third arbitrator. The parties agree to be bound by the findings of the arbitration. Notwithstanding the foregoing, the courts shall have jurisdiction over injunctive or provisional relief pending arbitration. The arbitrators shall not be empowered to award punitive damages to any party. The non -prevailing party to the arbitration shall pay all the prevailing party's expenses of the arbitration, including reasonable attorneys' fees and other costs and expenses incurred in connection with the prosecution or defense of such arbitration. 14.11. BACKGROUND SECTION: The Background section above is a part of this Agreement. 14.12. ASSIGNMENT: No party shall transfer or assign any or all of its rights or interests under this Agreement or delegate any of its obligations without the prior written consent of the other party; provided, however, that AEROTEK may transfer or assign its rights or interests, or delegate its obligations, under this Agreement to any parent, subsidiary or affiliate without the prior written consent of Client. 14.13. MOTOR VEHICLES: Contract Employee(s) are not authorized to operate a motor vehicle without AEROTEK's prior written permission. Client shall not request or require Contract Employee(s) to perform tasks which require driving a motor vehicle without AEROTEK expressed written permission. 14.14. COMPLIANCE: Client agrees that it will comply with applicable federal, state, and local laws in connection with the services provided by AEROTEK hereunder, including but not limited to the following: AEROTEK, INC. Rev 5/28/2015 7301 Parkway Drive Hanover, MD 21076 Page 3 of 6 AEROTEK 14.14.1. EQUAL OPPORTUNITY: AEROTEK is an equal opportunity employer and refers Contract Employees regardless of race, sex, color, religion, creed, ancestry, national origin, disability, age, marital status or other protected class status pursuant to applicable law. Client agrees and warrants that it will not reject Contract Employees, or otherwise deem Contract Employees unacceptable, or take any other action for any reason prohibited by federal, state or local laws including, but not limited to, laws pertaining to employment discrimination or employee safety. Client will indemnify and defend AEROTEK with respect to any and all claims that Client took action in violation of federal, state, and/or local laws, including costs of suit, settlement and attorneys' fees. 14.14.2. GOVERNMENT CONTRACTING — NOTIFICATION AND WAGE DETERMINATION: Client represents and warrants that the services to be provided by Contract Employees are not (i) supporting a contract for the United States, State or Local Government; or (ii) subject to any federal, state, or local prevailing wage determination, including but not limited to, the Service Contract Act of 1965, Davis -Bacon Act, or Walsh -Healey Public Contract Act. Client acknowledges and agrees that Client is responsible for (i) prior notification to AEROTEK of any and all projects that support a contract with the United States, State or Local Government, and (ii) the accuracy of any applicable prevailing wage determinations and flow down provisions. If it is later determined that such services provide by Contract Employees were in support of a United States, State or Local Government contract, Client agrees to indemnify AEROTEK for any claims, costs or fees which (i) AEROTEK may incur from any misclassification related to such determination; and (ii) result from any inaccuracy of the Client provided wage determination including, but not limited to, the failure to notify AEROTEK that the services provided by Contract Employees are or were required to be paid at a prevailing wage. Should Client fail to notify AEROTEK of an applicable prevailing wage or provide accurate wage determinations, AEROTEK reserves the right to bill Client the difference in the rate for all hours worked plus any statutory or regulatory costs associated with such rate difference. Further, AEROTEK will charge a ten percent (10%) fee, as liquidated damages for Client's failure to notify AEROTEK that a prevailing wage applies, which will be calculated based on the total difference in the rate for all hours worked. 14.14.3. AVIATION REGULATIONS: Client represents that none of the services to be performed by any Contract Employee will be FAA -regulated as a "SAFETY -SENSITIVE FUNCTION". Client agrees to be solely responsible for making such determination(s), and Client agrees to indemnify AEROTEK and hold AEROTEK harmless for any claims, costs or damages which may result from the Client's breach of its obligations contained herein. 14.14.4. HEALTH AND SAFETY: Client shall provide a safe, clean work environment that complies with all applicable local, state and federal laws. Client agrees to train, certify, evaluate and orient all Contract Employees in all applicable safety (IIPP), hazardous communication (MSDS information, etc.) and operational instructions in the same manner as Client employees and as required by policy or by law, including but not limited to, all federal OSHA and equivalent state agency requirements, guidelines and standards. Further, Client agrees to notify AEROTEK if any health and safety medical testing or medical surveillance will be required for Contract Employee. Client agrees to notify AEROTEK of any changes in occupational exposures that would require medical testing or medical surveillance. To the extent a Contract Employee is obligated to meet site-specific training requirements in order for Client to comply with applicable site-specific legal requirements, the Client shall provide the Contract Employee with all necessary training before placing the Contract Employee into the work environment and before allowing the Contract Employee to commence the specific assignment. Client shall provide and require all AEROTEK Contract Employees to wear all appropriate safety equipment. Client will notify AEROTEK immediately in the event of an accident or medical treatment of any Contract Employee, and will provide a completed supervisor's report of injury. AEROTEK may perform, if feasible, an inspection of the workplace to conduct its own hazard assessment or to ensure implementation of the Client's safety and health obligations. Client agrees to provide the necessary and accurate information to complete this assessment. In the event of an accident or other incident involving a Contract Employee, AEROTEK shall have the right to conduct an onsite investigation. Client shall cooperate with AEROTEK in the conduct of its investigation. Client will be responsible for all OSHA recordkeeping responsibilities required by law in the performance and execution of the terms of this agreement. Client shall indemnify AEROTEK and hold it harmless against and from any claims made or brought as a result of Client's breach of its obligations contained in this paragraph. 14.14.5. INTERNATIONAL TRAVEL: Contract Employee(s) are not authorized to travel internationally without AEROTEK's prior written permission. Client shall not request or require Contract Employee(s) to perform tasks which require international travel without AEROTEK's prior written permission. 14.14.6. OTHER REQUIREMENTS: Client acknowledges and agrees that it shall be responsible for notifying AEROTEK of any other industry -specific law or regulation applicable to the services provided by AEROTEK prior to any AEROTEK employee providing any services. 14.15. ANNUAL INFLATION ADJUSTMENT: Within the first sixty (60) days of every calendar year, AEROTEK reserves the right to adjust established bill rates with Client by up to 3% to cover specific direct cost increases. This bill rate adjustment will include any statutory, employee benefit, or Contract Employee compensation increases. AEROTEK will submit a revised Exhibit A reflecting the bill rate adjustment at the effective date of change to the Client for documentation purposes. If direct cost increases are greater than 3% then AEROTEK will secure a revised Exhibit A with Client documenting the new agreed upon rates. Any rate adjustment will be applicable on a go forward basis only. 14.16. DRUG & BACKGROUND SCREENING: If Client requires AEROTEK to perform certain drug and/or background screenings on its candidate(s) and/or Contract Employee(s). the Exhibit B Addendum should be completed and signed by both Client and Aerotek. These screenings will be performed at Client's sole expense unless otherwise agreed to in writing by both parties. WE, the undersigned have executed this Agreement the day and year first above written. AEROTEK. By: v f _ Name: i�L�Wgv-�( Shin Title:N�J.Jv�(i�Ai,P\ Date: 9-)11-011(6 Q Client: C of Stan Rafa I By: _ Name:6im S hutz Title. City Manaqer AEROTEK, INC. Rev 5/28/2015 7301 Parkway Drive Hanover, MD 21076 Page 4 of 6 AEROTEK Date: AEROTEK, INC. Rev 5/28/2015 7301 Parkway Drive Hanover, MD 21076 Page 5 of 6 AD k / � } \ % ƒ Q \ � _ LLI LU \ a � . . . / 2 { < ) a - \ ( CD § \ S x ® < k /0. / / k Ln krjrn k\ I \ ■ k( o \k \ to 2 7 6 _ •. m 3 3 </ t y i \ \ E oCL > 0 m a Go CD <E - Ln CDƒ /f\ es cu if� ah 2 a \ -a - e & '� f f _ k}}§ D ƒ r§ m -- � l 0 . \\ CD .� \ 8/ a -00 § | G� b ® 2 m _ _ c �^ §\ \ ° , - §m \ § m mm aj / \ 2 k \ \ 2 �� k E $ e ± ) 2 & a = _ 4 © .—cc cc k k\ _ 0 u /\ ¥� k m \ )§ ° k 2 f « ? / § i _ k k © ` < /§ k\ J a G 3 A, ■ 2 6 < HIPAA BUSINESS ASSOCIATE UNDERTAKING Pursuant to the Services Agreement ("AGREEMENT") made on this 29th day of February, 2016, between the City of San Rafael ("CITY"), which is a "Covered Entity' under the Health Insurance Portability and Accountability Act of 1966 ("HIPAA") regulations, and Allegis Group Holdings, Inc. dba Aerotek, Inc. ("CONTRACTOR"), which is a "Business Associate" under the HIPAA regulations, CITY will disclose to CONTRACTOR certain information, some of which may constitute Protected Health Information under the HIPAA regulations. "Protected Health Information" or "PHI" means any information, whether oral or recorded in any form or medium: (i) that relates to the past, present, or future physical or mental condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual, and (ii) that identifies he individual or with respect to which there is reasonable basis to believe the information can be used to identify the individual, and shall have the meaning given to such term under HIPAA and the HIPAA Regulations, including, but not limited to 45 CFR Section 164.501. CONTRACTOR is an individual or entity which provides services, arranges, performs or assists in the performance or activities of a Business Associate and who uses or discloses PHI, pursuant to the HIPAA Regulations, 45 CFR Section 160.103. CITY and CONTRACTOR desire to protect the privacy and provide for the security of PHI disclosed to CONTRACTOR in compliance with the Health Insurance Portability and Accountability Act of 1966, ("HIPAX) and regulations promulgated there under by the U.S. Department of Health and Human Services (the "HIPAA Regulations") and other applicable laws and regulations. This HIPAA Business Associate Undertaking is intended to satisfy the certain standards and requirements of HIPAA and the HIPAA Regulations, including, but not limited to, Title 45, Section 164.504(e) of the Code of Federal Regulations ("CFR"), as the same nay be amended from time to time. CONTRACTOR, as a Business Associate, under the AGREEMENT between the CITY and CONTRACTOR, and CITY, as a Covered Entity under the HIPAA regulations, shall have the following responsibilities: 1. Permitted Uses and Disclosures. CONTRACTOR may use and/or disclose PHI received by CONTRACTOR pursuant to the Agreement and solely for the purpose of performing its obligations under the Agreement. 2. Restrictions of PHI. CITY shall notify CONTRACTOR in writing within five (5) working days of receipt of any request by patients or their representatives to restrict the use and disclosure of PHI that the CONTRACTOR maintains for or on behalf of CITY. Upon written notice from the CITY, CONTRACTOR agrees to comply with any instruction to modify, delete or otherwise restrict the use and disclosure of PHI it maintains for or on behalf of CITY. 3. Disclosure of PHI. CONTRACTOR may, if necessary, use PHI (i) for the proper management and administration of CONTRACTOR's business or (ii) to carry out CONTRACTOR's legal responsibilities. 4. Nondisclosure. CONTRACTOR is not authorized and shall not use or further disclose CITY's PHI other than as permitted under the Agreement or this Undertaking, or as required by law or regulation. 5. Safeguards. CONTRACTOR shall use appropriate administrative, technical and physical safeguards to prevent any use or disclosure of CITY's PHI other than as provided for by the Agreement and this Undertaking. 6. Reporting of Disclosures. CONTRACTOR shall notify CITY in writing within five (5) working days of its discovery of any use or disclosure of CITY's PHI not permitted by the Agreement or this Undertaking of which HIPPA BUSINESS ASSOCIATE UNDERTAKING - Page 1 of 3 CONTRACTOR or its offices, employees or agents become aware. CONTRACTOR shall take (i) prompt corrective action to cure any deficiencies and (ii) any action pertaining to such unauthorized disclosure required by applicable federal and state laws and regulations. 7. Compliance with Law. CONTRACTOR shall comply with all applicable federal and state laws and regulations, including, if applicable under the terms and requirements of the Agreement, the HIPAA Standards for Electronic transactions, 45 CFR Parts 160 and 162. 8. CONTRACTOR's Agents. CONTRACTOR shall ensure that any agent or subcontractor agrees with CONTRACTOR in writing that the agent or subcontractor will hold the PHI confidentially and use or disclose the PHI only as required by law or for the purpose it was used or disclosed to the agent or subcontractor. Additionally, the agent or subcontractor shall notify CONTRACTOR of any instance of which it is aware in which the confidentially of the PHI has been breached. 9. Availabilitv and Accountina of Information. CONTRACTOR shall, within twenty (20) calendar days of receipt of a written request provide a copy of the PHI disclosed. CONTRACTOR shall, within twenty (20) calendar days of receipt of a written request, make available to CITY and if authorized in writing by CITY to the subject of the PHI, such information as may be required to fulfill CITY's obligations to provide access to, provide a copy of, and account for disclosures of CITYs PHI pursuant to HIPAA and the HIPAA Regulations, including, but not limited to, 45 CFR Sections 164.524 and 164.528. The accounting shall include: i) the date of the disclosure, ii) the name and address of the entity of person who received the PHI, iii) a brief description of the PHI disclosed, and iv) a brief statement of the basis for the disclosure or a copy of an authorization for the disclosure. 10. Amendment of PHI. CITY shall inform CONTRACTOR within five (5) working days of receipt of any request by or on behalf the subject of the PHI to amend the PHI CONTRACTOR maintains for or on behalf of CITY. CONTRACTOR shall, within twenty (20) calendar days of receipt of a written request, make the subject's PHI available to CITY as may be required to fulfill CITY's obligations to amend PHI pursuant to HIPAA and the HIPAA Regulations, including, but not limited to, 45 CFR Section 164.526. CONTRACTOR shall, as directed by CITY, incorporate any amendment to CITY's PHI into copies of such PHI maintained by CONTRACTOR. 11. Reaulatory Compliance. CONTRACTOR shall make its internal practices, books and records relating to the use and disclosure of PHI received from CITY (or created or received by CONTRACTOR on behalf of CITY) available to any state of federal agency, including the U.S. Department of Health and Human Services, for purposes of determining CITY's compliance with the HIPAA Regulations. 12. Inspection of Records. Within thirty (30) calendar days of a written request, CONTRACTOR shall make available to CITY during normal business hours all records, books, agreements, policies and procedures relating to the use and/or disclosure of CITY's PHI for purposes of enabling CITY to determine CONTRACTOR's compliance with the terms of this Undertaking. 13. Certification. CITY and its authorized agents or contractors, may examine CONTRACTOR's facilities, systems, procedures, and records as may be necessary to determine the extent to which CONTRACTOR's security safeguards comply with HIPAA, the HIPAA Regulations, or this Undertaking. 14. Effect of Termination. Upon termination of the AGREEMENT for any reason, CONTRACTOR shall return or, at the option of CITY, destroy all PHI received from CITY, or created and received by CONTRACTOR on behalf of CITY, that CONTRACTOR shall maintain in any form, and shall retain no copies of such PHI. 15. Compliance with Law. The parties acknowledge that state and federal laws relating to electronic data security and privacy are rapidly evolving and that changes to this Undertaking may be required to ensure compliance with such developments. The parties specifically agree to take such action as may be necessary to implement the standards and requirements of HIPAA, the HIPAA Regulations and other applicable state and federal laws relating to the security or confidentiality of PHI. 16. Negotiations. In the event that a state or federal law, statute, or regulation materially affects the AGREEMENT or this Undertaking, the parties agree to negotiate immediately in good fight any necessary or appropriate revisions HIPPA BUSINESS ASSOCIATE UNDERTAKING - Page 2 of 3 to the AGREEMENT or this Undertaking. If the parties are unable to reach an agreement concerning such revisions within the earlier of sixty (60) calendar days after the date of notice seeking negotiations or the effective date of a change in law or regulation, or if the change is effective immediately, then either party may immediately terminate the upon written notice to the other. CITY OF SAN RAFAFL JI"TZ,er APPROVED AS TO FORM: Lo �z ROBERT F. EPSTEIN, dty Att i ey AEROTEK, INC. KAYLEIGH SHA Account Manager HIPPA BUSINESS ASSOCIATE UNDERTAKING - Page 3 of 3 PROFESSIONAL SERVICES AGREEMENT/CONTRACT COMPLETION CHECKLIST AND ROUTING SLIP Below is the process for getting your professional services agreements/contracts finalized and executed. Please attach this "Completion Checklist and Routing Slip" to the front of your contract as you circulate it for review and signatures. Please use this form for all professional services aLyreements/contracts (not just those requiring City Council approval). This process should occur in the order presented below. Step Responsible Description Completion Department Date 1 City Attorney Review, revise, and comment on draft agreement. 2 Contracting Department Forward final agreement to contractor for their signature. Obtain at least two signed originals from contractor. 3 Contracting Department Agendize contractor -signed agreement for Council approval, if Council approval N/A necessary (as defined by City Attorney/City Ordinance*). 4 City Attorney Review and approve form of agreement; (1 bonds, and insurance certificates and endorsements. 5 City Manager / Mayor / or Agreement executed by Council authorized Department Head official. 6 City Clerk City Clerk attests signatures, retains original agreement and forwards copies to the contracting department. To be completed by Contracting Department: Project Manager: Joyce McCarthy Project Name: Temporary Billing Assistance Agendized for City Council Meeting of (if necessary): N/A FPPC: ❑ , check if required If you have questions on this process, please contact the City Attorney's Office at 485-3080. * Council approval is required if contract is over $20,000 on a cumulative basis.