HomeMy WebLinkAboutCC Resolution 13546 (Downtown Streets Team Funding)RESOLUTION NO. 13546
RESOLUTION OF THE SAN RAFAEL CITY COUNCIL RATIFYING THE CITY
MANAGER'S EXECUTION OF A CONTRACT WITH THE COUNTY OF MARIN
PROVIDING $143,000 IN FUNDING FOR THE DOWNTOWN STREETS TEAM
PROGRAM AND AUTHORIZING THE CITY MANAGER TO ACCEPT
ADDITIONAL GRANT FUNDS FOR THE DOWNTOWN STREETS TEAM
PROGRAM AND TO EXECUTE ANY NECESSARY AGREEMENTS TO
RECEIVE SUCH GRANT FUNDING.
WHEREAS, on February 19, 2013, the City Council authorized the City Manager to
enter into an agreement with the Downtown Streets Team to implement a volunteer work
experience program for homeless persons, in a form approved by the City Attorney. The
authorization was for an agreement in an amount not to exceed $272,000, the terms described
in the San Rafael Downtown Streets Team Project Proposal attached to the February 19, 2013
staff report and resolution; and
WHEREAS, the February 19`x' staff report stated that the City of San Rafael would
obtain financial assistance from outside agencies, businesses and individuals. To date, the
City has received funding commitments from the County of Marin, Kaiser Permanente, and
the Marin Community Foundation; and
WHEREAS, the County of Marin committed $143,000 for this effort and required
the City of San Rafael to enter into an contract with the Department of Health and Human
Services for the provision of a volunteer work experience program for homeless individuals;
and
WHEREAS, the County and City staff desire the contract to be addressed by the
Board of Supervisors at their June 18, 2013 meeting, and the County required the agreement
be signed by the City prior to placing the item on the Board agenda; and
WHEREAS, the City Manager signed the contract with the County in order to
expedite the receipt of the County funding and the start of the Downtown Streets program
pursuant to the City Council's February 19, 2013 approval; and
WHEREAS, City staff desire the City Council to ratify the City Manager's action in
execution of the contract with the County; and
WHEREAS, City staff desire the City Council to authorize the City Manager to
accept additional grant funding for the Downtown Streets Team program, and to execute any
necessary agreements, in a form approved by the City Attorney, to receive such grant funding.
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THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN RAFAEL
RESOLVES as follows:
The CITY MANAGER's execution of the contract with the County of Marin for
$143,000 to fund the Downtown Streets Team program, attached to the Staff Report and on
file with the City Clerk, is hereby ratified and approved, and the City Manager is authorized
to accept additional grant funding for the Downtown Streets Team program and to execute
any necessary agreements, in a form approved by the City Attorney, to receive such grant
funding.
I, ESTHER C. BEIRNE, Clerk of the City of San Rafael, hereby certify that the
foregoing resolution was duly and regularly introduced and adopted at a regular meeting of
the City Council of said City held on Monday the seventeenth day of June, 2013, by the
following vote, to wit:
AYES: COUNCILMEMBERS: Colin, Connolly, Heller, McCullough & Mayor Phillips
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
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ESTHER C. BEIRNE, City Clerk
AGREEMENT
FOR IMPLEMENTATION AND MANAGEMENT
OF A VOLUNTEER WORK PROGRAM SERVING THE HOMELESS
This Agreement is made and entered into this Vnd day of June , 2013, by and
between the CITY OF SAN RAFAEL (hereinafter "CITY'), and Downtown Streets, Inc., dba the
Downtown Streets Team, a 501(c)(3) organization, (hereinafter "CONTRACTOR").
RECITALS
WHEREAS, the 2011 County homeless count indicated there were 1,220 homeless
persons in the County and 4,179 precariously housed persons, including 255 homeless people in
San Rafael; and
WHEREAS, the CITY, the Downtown Business Improvement District and other members
of the community desire to assist persons experiencing homelessness to rebuild their lives and
engage in a meaningful contribution to the San Rafael community; and
WHEREAS, the CONTRACTOR has the experience and expertise to implement and
manage a volunteer work experience program in partnership with the CITY, the San Rafael
business community and local non profits that serve the homeless; and
WHEREAS, the CITY desires to utilize the services of the CONTRACTOR to implement
and manage a volunteer work program for persons experiencing homelessness; and
WHEREAS, the CITY has entered into an agreement with the County of Marin, dated
June 18, 2013, for the implementation and management of a volunteer work program for persons
experiencing homelessness, a copy of which is attached hereto as Attachment "I";
WHEREAS, the County of Marin has approved the City's subcontracting its duties under
the Agreement attached as Attachment "I" to CONTRACTOR.
AGREEMENT
NOW, THEREFORE, the parties hereby agree as follows:
PROJECT COORDINATION
A. CITY. The City Manager shall be the representative of the CITY for all
purposes under this Agreement. Acting Economic Development Manager, Stephanie Lovette, is
hereby designated the PROJECT MANAGER for the CITY, and said PROJECT MANAGER shall
supervise all aspects of the progress and execution of this Agreement.
B. CONTRACTOR. CONTRACTOR shall assign a single PROJECT
DIRECTOR to have overall responsibility for the progress and execution of this Agreement for
CONTRACTOR. Andrew Hening is hereby designated as the PROJECT DIRECTOR for
CONTRACTOR. Should circumstances or conditions subsequent to the execution of this
Agreement require a substitute PROJECT DIRECTOR for any reason; the CONTRACTOR shall
notify the CITY within ten (10) business days of the substitution. DAVDAIGINAL
2. DUTIES OF CONTRACTOR
CONTRACTOR shall perform all the duties and/or provide services, and undertake
all the responsibilities, assigned to CITY under the Agreement between CITY and the County of
Marin, attached hereto as Attachment I including Exhibits A, B, C, D, and M thereto;
3. DUTIES OF CITY
CITY shall cooperate with CONTRACTOR in his performance under this
agreement and shall compensate CONTRACTOR as provided herein.
4. COMPENSATION
For the full performance of the services described herein by CONTRACTOR, CITY
shall pay CONTRACTOR a total amount NOT to exceed $272,000, including the cost of local
business license taxes as described in Section 20.
Payment will be made monthly upon receipt by PROJECT MANAGER of an invoice
submitted by CONTRACTOR.
5. TERM OF AGREEMENT
The term of this Agreement shall commence upon the date of execution of this
agreement and shall end on June 30, 2014, unless such Agreement is terminated before such
date as provided in Paragraph 6.
6. TERMINATION
A. Discretionary. Either party may terminate this Agreement without cause
upon thirty (30) days written notice mailed or personally delivered to the other party.
B. Cause. Either party may terminate this Agreement for cause upon ten (10)
days written notice mailed or personally delivered to the other party, and the notified party's failure
to cure or correct the cause of the termination notice, to the reasonable satisfaction of the party
giving such notice, within thirty (30) days of the receipt of said notice.
C. Effect of Termination. Upon receipt of notice of termination, neither party
shall incur additional obligations under any provision of this Agreement without the prior written
consent of the other.
D. Return of Documents. Upon termination, any and all CITY documents or
materials provided to CONTRACTOR and any and all of Contractor's documents described in
paragraph 7 below, shall be delivered to CITY as soon as possible, but not later than thirty (30)
days after termination.
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7. OWNERSHIP OF DOCUMENTS
The written documents and materials prepared by the CONTRACTOR in
connection with the performance of its duties under this Agreement shall be the sole property of
CITY. CITY may use said property for any purpose, including projects not contemplated by this
Agreement.
8. INSPECTION AND AUDIT
Upon reasonable notice, CONTRACTOR shall make available to CITY and/or the
County of Marin, or their agents, for inspection and audit, all documents directly related to
Contractor's performance of its duties under this Agreement. CONTRACTOR shall fully
cooperate with CITY and County or their agent in any such audit or inspection.
9. ASSIGNABILITY
The parties agree that they shall not assign or transfer any interest in this
Agreement nor the performance of any of their respective obligations hereunder, without the prior
written consent of the other party, and any attempt to so assign this Agreement or any rights,
duties or obligations arising hereunder shall be void and of no effect.
10. INSURANCE
A. During the term of this Agreement, CONTRACTOR shall maintain, at no
expense to CITY, the following insurance policies:
1. A comprehensive general liability insurance policy in the minimum
amount of one million ($1,000,000) dollars per occurrence for death, bodily injury, personal injury,
or property damage;
2. An automobile liability (owned, non -owned, and hired vehicles)
insurance policy in the minimum amount of one million ($1,000,000) dollars per occurrence;
3. If any licensed professional performs any of the services required to
be performed under this Agreement, a professional liability insurance policy in the minimum
amount of one million ($1,000,000) dollars to cover any claims arising out of the Contractor's
performance of services under this Agreement.
B. The insurance coverage required of the CONTRACTOR by section 10. A.
shall also meet the following requirements:
1. The insurance shall be primary with respect to any insurance or
coverage maintained by CITY or the County of Marin and shall not call upon City's or the county
of Marin's insurance or coverage for any contribution;
2. Except for professional liability insurance, the insurance policies shall
be endorsed for contractual liability and personal injury;
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3. Except for professional liability insurance, the insurance policies shall
be specifically endorsed to include the CITY and the County of Marin, their officers, agents,
employees and volunteers as additionally named insureds under the policies;
4. CONTRACTOR shall provide to PROJECT MANAGER, (a)
Certificates of Insurance evidencing the insurance coverage required herein, and (b) specific
endorsements naming CITY, and the County of Marin, their officers, agents, employees and
volunteers as additional insureds under the policies;
5. The insurance policies shall provide that the insurance carrier shall
not cancel, terminate or otherwise modify the terms and conditions of said insurance policies
except upon thirty (30) days written notice to CITY's PROJECT MANAGER;
6. If the insurance is written on a Claims Made Form, then, following
termination of this Agreement, said insurance coverage shall survive for a period of not less than
five years;
7. The insurance policies shall provide for a retroactive date of
placement coinciding with the effective date of this Agreement;
8. PROJECT MANAGER and the City Attorney shall approve the
insurance as to form and sufficiency.
C. If it employs any person, CONTRACTOR shall maintain worker's
compensation and employer's liability insurance, as required by the State Labor Code and other
applicable laws and regulations, and as necessary to protect CONTRACTOR, CITY and the
County of Marin against all liability for injuries to CONTRACTOR's officers and employees.
D. Any deductibles or self-insured retentions in CONTRACTOR's insurance
policies must be declared to and approved by the PROJECT MANAGER and the City Attorney.
At CITY's option, the deductibles or self-insured retentions with respect to CITY shall be reduced
or eliminated to CITY's satisfaction, or CONTRACTOR shall procure a bond guaranteeing
payment of losses and related investigations, claims administration, attorney's fees and defense
expenses.
11. INDEMNIFICATION
CONTRACTOR shall indemnify, release, defend and hold harmless CITY, and the
County of Marin, their officers, agents, employees and volunteers, against any claim, demand,
suit, judgment, loss, liability or expense of any kind, including attorney's fees, arising out of or
resulting in any way, in whole or in part, from any acts or omissions, intentional or negligent, of
CONTRACTOR or CONTRACTOR's officers, agents and employees in the performance of their
duties and obligations under this Agreement.
12. NONDISCRIMINATION
CONTRACTOR shall not discriminate, in any way, against any person on the basis
of age, sex, race, color, religion, ancestry, national origin or disability in connection with or related
to the performance of its duties and obligations under this Agreement.
13. COMPLIANCE WITH ALL LAWS
CONTRACTOR shall observe and comply with all applicable federal, state and
local laws, ordinances, codes and regulations, in the performance of its duties and obligations
under this Agreement. CONTRACTOR shall perform all services under this Agreement in
accordance with these laws, ordinances, codes and regulations. CONTRACTOR shall release,
defend, indemnify and hold harmless CITY and the County of Marin', their officers, agents and
employees from any and all damages, liabilities, penalties, fines and all other consequences from
any noncompliance or violation of any laws, ordinances, codes or regulations.
14. NO THIRD PARTY BENEFICIARIES
CITY and CONTRACTOR do not intend, by any provision of this Agreement, to
create in any third party, any benefit or right owed by one party, under the terms and conditions of
this Agreement, to the other party.
15. NOTICES
All notices and other communications required or permitted to be given under this
Agreement, including any notice of change of address, shall be in writing and given by personal
delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the
parties intended to be notified. Notice shall be deemed given as of the date of personal delivery,
or if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given
as follows:
TO CITY: Ms. Stephanie Lovette, Economic Development Manger
City of San Rafael
1400 Fifth Avenue
P.O. Box 151560
San Rafael CA 94915-1560
TO CONTRACTOR: Ms. Eileen Richardson, Executive Director
Downtown Streets, Inc., dba Downtown Streets Team
555 Waverly Street
Palo Alto, CA 94301
16. INDEPENDENT CONTRACTOR
For the purposes, and for the duration, of this Agreement, CONTRACTOR, its
officers, agents and employees shall act in the capacity of an Independent Contractor, and not as
employees of the CITY. CONTRACTOR and CITY expressly intend and agree that the status of
CONTRACTOR, its officers, agents and employees be that of an Independent Contractor and not
that of an employee of CITY.
17. ENTIRE AGREEMENT -- AMENDMENTS
A. The terms and conditions of this Agreement, all exhibits attached, and all
documents expressly incorporated by reference, represent the entire Agreement of the parties
with respect to the subject matter of this Agreement.
B. This written Agreement shall supersede any and all prior agreements, oral or
written, regarding the subject matter between the CONTRACTOR and the CITY.
C. No other agreement, promise or statement, written or oral, relating to the
subject matter of this Agreement, shall be valid or binding, except by way of a written- amendment
to this Agreement.
D. The terms and conditions of this Agreement shall not be altered or modified
except by a written amendment to this Agreement signed by the CONTRACTOR and the CITY.
E. If any conflicts arise between the terms and conditions of this Agreement,
and the terms and conditions of the attached exhibits or the documents expressly incorporated by
reference, the terms and conditions of this Agreement shall control.
18. WAIVERS
The waiver by either party of any breach or violation of any term, covenant or
condition of this Agreement, or of any ordinance law or regulation, shall not be deemed to be a
waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent
breach or violation of the same or other term, covenant, condition, ordinance, law or regulation.
The subsequent acceptance by either party of any fee, performance, or other consideration which
may become due or owing under this Agreement, shall not be deemed to be a waiver of any
preceding breach or violation by the other party of any term, condition, covenant of this
Agreement or any applicable law, ordinance or regulation.
19. COSTS AND ATTORNEY'S FEES
The prevailing party in any action brought to enforce the terms and conditions of
this Agreement, or arising out of the performance of this Agreement, may recover its reasonable
costs (including claims administration) and attorney's fees expended in connection with such
action.
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20. CITY.BUSINESS LICENSE/OTHER TAXES
CONTRACTOR shall obtain and maintain during the duration of this Agreement, a
CITY business license as required by the San Rafael Municipal Code. CONTRACTOR shall pay
any and all state and federal taxes and any other applicable taxes. CITY shall not be required to
pay for any work performed under this Agreement, until CONTRACTOR has provided CITY with
a completed Internal Revenue Service Form W-9 (Request for Taxpayer Identification Number
and Certification)
21. APPLICABLE LAW
The laws of the State of California shall govern this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day, month
and year first above written.
CITY OF SAN RAFAEL
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City Manager (
ATTEST:
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City Clerk
APPROVED AS TO FORM:
City Attorney
CONTRACTOR
By:
Name: ::. L ( /-il tj
Title: ki-"; v .., �J' (
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Form W-9
(Rev. December 2011)
Department o' the Treasury
lntemal Revenue Service
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Request for Taxpayer Give Form to the
Identification Number and Certification requester. Do not
send to the IRS.
Name (as shown on your income tax return)
Downtown Streets, Inc.
Business nameldisregarded entity name, if different from above
Check appropriate box for federal tax classification:
❑ Individual/sole proprietor El C Corporation ❑ S Corporation ❑ Partnership ❑ Trust/estate
❑ Limited liability company. Enter the tax classification (C=C corporation, S=S corporation, P=partnership) No ❑ Exempt payee
❑ other (see instructions) ►
Address (number, street, and apt. or suite no.) Requester's name and address (optional)
555 Waverley Street
City, state, and ZIP code
Palo Alto, CA, 94301
List account numbers) here (optional)
902111 Taxpayer Identification Number (TIN)
Enter your TIN in the appropriate box. The TIN provided must match the name given on the "Name" line
to avoid backup withholding. For individuals, this is your social security number (SSN). However, for a
resident alien, sole proprietor, or disregarded entity, see the Part I instructions on page 3. For other
entities, it is your employer identification number (EIN). If you do not have a number, see How to get a
TIN on page 3.
Note. If the account is in more than one name, see the chart on page 4 for guidelines on whose
number to enter.
• - Certification
Under penalties of perjury, I certify that:
Social security number
-m
Employer identification number 1
20 - 5121412'31310_
The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me), and
2. 1 am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue
Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that 1 am
no longer subject to backup withholding, and
3. 1 am a U.S. citizen or other U.S. person (defined below).
Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding
because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply. For mortgage
interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement arrangement (IRA), and
generally, payments other than interest and dividends, you are not required to sign the certification, but you must provide your correct TIN. See the
instructions on page 4.
Sign Signature of
Here U.S. person 0- ... ° M. Date 10, 0 1 C 1 ,. ,....1 i ?,
General Instructions
Section references are to the Internal Revenue Code unless otherwise
noted.
Purpose of Form
A person who is required to file an information return with the IRS must
obtain your correct taxpayer identification number (TIN) to report, for
example, income paid to you, real estate transactions, mortgage interest
you paid, acquisition or abandonment of secured property, cancellation
of debt, or contributions you made to an IRA.
Use Form W-9 only if you are a U.S. person (including a resident
alien), to provide your correct TIN to the person requesting it (the
requester) and, when applicable, to:
1. Certify that the TIN you are giving Is correct (or you are waiting for a
number to be issued),
2. Certify that you are not subject to backup withholding, or
3. Claim exemption from backup withholding if you are a U.S. exempt
payee. If applicable, you are also certifying that as a U.S. person, your
allocable share of any partnership income from a U.S. trade or business
is not subject to the withholding tax on foreign partners' share of
effectively connected income.
Note. If a requester gives you a form other than Form W-9 to request
your TIN, you must use the requester's form if it is substantially similar
to this Form W 9.
Definition of a U.S. person. For federal tax purposes, you are
considered a U.S. person if you are,
• An individual who is a U. S. citizen or U.S. resident alien,
• A partnership, corporation, company, or association created or
organized in the United States or under the laws of the United States,
• An estate (other than a foreign estate), or
• A domestic trust (as defined in Regulations section 301.7701-7).
Special rules for partnerships. Partnerships that conduct a trade or
business in the United States are generally required to pay a withholding
tax on any foreign partners' share of income from such business.
Further, in certain cases where a Form W-9 has not been received, a
partnership is required to presume that a partner is a foreign person,
and pay the withholding tax. Therefore, if you are a U.S. person that is a
partner in a partnership conducting a trade or business in the United
States, provide Form W-9 to the partnership to establish your U.S.
status and avoid withholding on your share of partnership income.
Cat. No. 10231X Form W-9 (Rev. 12-2011)
CAO Contract Log # COUNTY OF MARIN Dept. Contract Log #
PROFESSIONAL SERVICES CONTRACT
2012 - Edition 1
THIS CONTRACT is made and entered into this Ig day of2013, by and between the
COUNTY OF MARIN, hereinafter referred to as "County" and City of San Rafael, hereinafter referred to as "Contractor."
RECITALS:
WHEREAS, County desires to retain a person or firm to provide the following service: Downtown Streets Team; and
WHEREAS, Contractor warrants that it is qualified and competent to render the aforesaid services;
NOW, THEREFORE, for and in consideration of the Contract made, and the payments to be made by County, the parties
agree to the following:
1. SCOPE OF SERVICES:
Contractor agrees to provide all of the services described in Exhibit A attached hereto and by this reference made a part
hereof.
2. FURNISHED SERVICES:
The County agrees to:
A. Guarantee access to and make provisions for the Contractor to enter upon public and private lands as required
to perform their work.
B. Make available all pertinent data and records for review.
C. Provide general bid and Contract forms and special provisions format when needed.
3. FEES AND PAYMENT SCHEDULE:
The fees and payment schedule for furnishing services under this Contract shall be based on the rate schedule which is
attached hereto as Exhibit B and by this reference incorporated herein. Said fees shall remain in effect for the entire term
of the Contract. Contractor shall provide County with his/her/its Federal Tax I.D. number prior to submitting the first
invoice.
4. MAXIMUM COST TO COUNTY:
In no event will the cost to County for the services to be provided herein exceed the maximum sum of $143,000 including
direct non -salary expenses. As set forth in section 14 of this Contract, should the funding source for this Contract be
reduced, Contractor agrees that this maximum cost to County may be amended by written notice from County to reflect
that reduction.
5. TIME OF CONTRACT:
This Contract shall commence on June 18, 2013, and shall terminate on June 30, 2014. Certificate(s) of Insurance
must be current on day Contract commences and if scheduled to lapse prior to termination date, must be automatically
updated before final payment may be made to Contractor. The final invoice must be submitted within 30 days of
completion of the stated scope of services.
6. INSURANCE:
Commercial General Liability:
The Contractor shall maintain a commercial general liability insurance policy in the amount of $1,000,000 ($2,000,000
aggregate). The County shall be named as an additional insured on the commercial general liability policy.
Commercial Automobile Liabilitv:
Where the services to be provided under this Contract involve or require the use of any type of vehicle by Contractor,
Contractor shall provide comprehensive business or commercial automobile liability coverage, including non -owned and
hired automobile liability, In the amount of $1,000,000.00.
ATTACHMENT "I"
Workers' Compensation:
The Contractor acknowledges the State of California requires every employer to be insured against liability for workers'
compensation or to undertake self-insurance in accordance with the provisions of the Labor Code. If Contractor has
employees, a copy of the certificate evidencing such insurance, a 19tter of self-insurance, or a copy of the Certificate of
Consent to Self -Insure shall be provided to 6oa�r'�y prior to commen66ment of work.
Errors and Omissions. Professional Liability or Maloractice Insurance.
Contractor may be required to carry errors and omissions, professional liability or malpractice insurance.
All policies shall remain in force through the life of this Contract and shall be payable on a "per occurrence" basis unless
County specifically consents to a "claims made" basis. The insurer shall supply County adequate proof of insurance and/or
a certificate of insurance evidencing coverages and limits prior to commencement of work. Should any of the required
insurance policies in this Contract be cancelled or non -renewed, it is the Contractor's duty to notify the County immediately
upon receipt of the notice of cancellation or non -renewal -
If Contractor does not carry a required insurance coverage and/or does not meet the required limits, the coverage limits
and deductibles shall be set forth on a waiver, Exhibit C, attached hereto.
Failure to provide and maintain the insurance required by this Contract will constitute a material breach of this Contract. In
addition to any other available remedies, County may suspend payment to the Contractor for any services provided during
any time that insurance was not in effect and until such time as the Contractor provides adequate evidence that Contractor
has obtained the required coverage.
7. ANTI DISCRIMINATION AND ANTI HARASSMENT:
Contractor and/or any subcontractor shall not unlawfully discriminate against or harass any individual including, but not
limited to, any employee or volunteer of the County of Marin based on race, color, religion, nationality, sex, sexual
orientation, age or condition of disability. Contractor and/or any subcontractor understands and agrees that Contractor
and/or any subcontractor is bound by and will comply with the anti discrimination and anti harassment mandates of all
Federal, State and local statutes, regulations and ordinances including, but not limited to, County of Marin Personnel
Management Regulation (PMR) 21.
8. SUBCONTRACTING
The Contractor shall not subcontract nor assign any portion of the work required by this Contract without prior written
approval of the County except for any subcontract work identified herein. If Contractor hires a subcontractor under this
Contract, Contractor shall require subcontractor to provide and maintain insurance coverage(s) identical to what is required
of Contractor under this Contract and shall require subcontractor to name Contractor and County of Marin as an additional
insured under this Contract for general liability. It shall be Contractor's responsibility to collect and maintain current
evidence of insurance provided by its subcontractors and shall forward to the County evidence of same.
9. ASSIGNMENT:
The rights, responsibilities and duties under this Contract are personal to the Contractor and may not be transferred or
assigned without the express prior written consent of the County.
10. LICENSING AND PERMITS:
The Contractor shall maintain the appropriate licenses throughout the life of this Contract. Contractor shall also obtain any
and all permits which might be required by the work to be performed herein.
11. BOOKS OF RECORD AND AUDIT PROVISION:
Contractor shall maintain on a current basis complete books and records relating to this Contract. Such records shall
include, but not be limited to, documents supporting all bids, all income and all expenditures. The books and records shall
be original entry books with a general ledger itemizing all debits and credits for the work on this Contract. In addition,
Contractor shall maintain detailed payroll records Pncluding all subsistence, travel and field expenses, and canceled
checks, receipts and invoices for all items. These documents and records shall be retained for at least five years from the
completion of this Contract. Contractor will permit County to audit all books, accounts or records relating to this Contract or
all books, accounts or records of any business entities controlled by Contractor who participated in this Contract in any
way. Any audit may be conducted on Contractor's premises or, at County's option, Contractor shall provide all books and
records within a maximum of fifteen (15) days upon receipt of written notice from County. Contractor shall refund any
monles erroneously charged.
12. WORK PRODUCT/PRE-EXISTING WORK PRODUCT OF CONTRACTOR:
Any and all work product resulting from this Contract is commissioned by the County of Marin as a work for hire. The
County of Marin shall be considered, for all purposes, the author of the work product and shall have all rights of authorship
to the work, including, but not limited to, the exclusive right to use, publish, reproduce, copy and make derivative use of,
the work product or otherwise grant others limited rights to use the work product.
To the extent Contractor incorporates into the work product any pre-existing work product owned by Contractor, Contractor
hereby acknowledges and agrees that ownership of such work product shall be transferred to the County of Marin.
13. TERMINATION:
A. If the Contractor fails to provide in any manner the services required under this Contract or otherwise fails to
comply with the terms of this Contract or violates any ordinance, regulation or other law which applies to its
performance herein, the County may terminate this Contract by giving five (5) calendar days written notice to
the party involved.
B. The Contractor shall be excused for failure to perform services herein if such services are prevented by acts of
God, strikes, labor disputes or other forces over which the Contractor has no control.
C. Either party hereto may terminate this Contract for any reason by giving thirty (30) calendar days written notice
to the other parties. Notice of termination shall be by written notice to the other parties and be sent by
registered mail.
D. In the event of termination not the fault of the Contractor, the Contractor shall be paid for services performed to
the date of termination in accordance with the terms of this Contract so long as proof of required insurance is
provided for the periods covered in the Contract or Amendment(s).
14. APPROPRIATIONS:
The County's performance and obligation to pay under this Contract is contingent upon an annual appropriation by the
Marin County Board of Supervisors, the State of California or other third party. Should the funds not be appropriated
County may terminate this Contract with respect to those payments for which such funds are not appropriated. County will
give Contractor thirty (30) days' written notice of such termination. All obligations of County to make payments after the
termination date will cease.
Where the funding source for this Contract is contingent upon an annual appropriation or grant from the Marin County
Board of Supervisors, the State of California or other third party, County's performance and obligation to pay under this
Contract is limited by the availability of those funds. Should the funding source for this Contract be eliminated or reduced,
upon written notice to Contractor, County may reduce the Maximum Cost to County identified in section 4 to reflect that
elimination or reduction.
15. RELATIONSHIP BETWEEN THE PARTIES:
It is expressly understood that in the performance of the services herein, the Contractor, and the agents and employees
thereof, shall act in an independent capacity and as an independent Contractor and not as officers, employees or agents of
the County. Contractor shall be solely responsible to pay all required taxes, including but not limited to, all withholding
social security, and workers' compensation.
16. AMENDMENT:
This Contract may be amended or modified only by written Contract of all parties.
17. ASSIGNMENT OF PERSONNEL:
The Contractor shall not substitute any personnel for those specifically named in its proposal unless personnel with
substantially equal or better qualifications and experience are provided, acceptable to County, as is evidenced in writing.
18. JURISDICTION AND VENUE:
This Contract shall be construed in accordance with the laws of the State of California and the parties hereto agree that
venue shall be in Marin County, California.
19. INDEMNIFICATION:
Contractor agrees to indemnify, defend, and hold County, its employees, officers, and agents, harmless from any and all
liabilities including, but not limited to, litigation costs and attorney's fees arising from any and all claims and losses to
anyone who may be injured or damaged by reason of Contractor's negligence, recklessness or willful misconduct in the
performance of this Contract.
20. COMPLIANCE WITH APPLICABLE LAWS:
The Contractor shall comply with any and all Federal, State and local laws and resolutions: including, but not limited to the
County of Marin Nuclear Free Zone, Living Wage Ordinance, and Board of Supervisors Resolution #2005-97 prohibiting
the off -shoring of professional services involving employee/retiree medical and financial data affecting services covered by
this Contract. Copies of any of the above -referenced local laws and resolutions may be secured from the Contract
Manager referenced in section 21. In addition, the following NOTICES may apply:
1. Pursuant to California Franchise Tax Board regulations, County will automatically withhold 7% from all
payments made to vendors who are non-residents of California.
2. Contractor agrees to meet all applicable program access and physical accessibility requirements under
State and Federal laws as may apply to services, programs or activities for the benefit of the public.
3. For Contracts involving any State or Federal grant funds, Exhibit D must be attached. Exhibit D shall
consist of the printout results obtained by search of the System for Award Management at www.sam.aov.
Exhibit D - Debarment Certification
By signing and submitting this Contract, the Contractor is agreeing to abide by the debarment requirements as
set out below.
• The certification In this clause is a material representation of fact relied upon by County.
• The Contractor shall provide immediate written notice to County if at any time the Contractor learns that its
certification was erroneous or has become erroneous by reason of changed circumstances.
• Contractor certifies that none of its principals, affiliates, agents, representatives or contractors are excluded,
disqualified or ineligible for the award of contracts by any Federal agency and Contractor further certifies to the
best of its knowledge and belief, that it and its principals:
• Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily
excluded by any Federal Department or Agency;
• Have not been convicted within the preceding three -years of any of the offenses listed in 2 CFR
180.800(a) or had a civil judgment rendered against it for one of those offenses within that time period;
• Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity
(Federal, State, or Local) with commission of any of the offenses listed in 2 CFR 180.800(a);
• Have not had one or more public transactions (Federal, State, or Local) terminated within the
preceding three -years for cause or default.
The Contractor agrees by signing this Contract that it will not knowingly enter into any subcontract or covered
transaction with a person who is proposed for debarment, debarred, suspended, declared ineligible, or
voluntarily excluded from participation in this covered transaction.
• The Contractor to this Contract and any subcontractor will provide a debarment certification that includes the
debarment clause as noted in preceding bullets above, without modification.
21. NOTICES:
This Contract shall be managed and administered on County's behalf by the Department Contract Manager named below.
All invoices shall be submitted and approved by this Department and all notices shall be given to County at the following
location:
Jason Satterfield
Contract Manager: Health & Human Services
899 Northgate Dr.
San Rafael, CA 94903
..Dept./Location:,. ... .., a_.......
Telephone No.: (415) 473-3501
Notices shall be given to Contractor at the following address(es):
Contractor: Citi/ of San Rafael, Economic Development
1313 Fifth Ave.
Address: San Rafael, CA 94915-1560
................................................................................................
Tele hone No.: 415 485-3383
Contractor:
Address:
Telep—hone No.:
22. ACKNOWLEDGEMENT OF EXHIBITS:
Check applicable Exhibits
EXHIBIT A. ® Scope of Services
EXHIBIT B. ® Fees and Payment
EXHIBIT C. JK Insurance Reduction/Waiver
EXHIBIT D. ® Contractor's Debarment Certification
EXHIBIT E. Subcontractor's Debarment Certification
OTHER REQUIRED ® Exhibit M - Business Associate
EXHIBITS (HHS USE ❑ Agreement
ONLY) ❑
CONTRACTOR'S
�INITIALS
Yl N�
IN WITNESS WHEREOF, the parties have executed this Contract on the date first above written.
CONTRACTOR: APPROVED BY
COUNTY
MAR
IN:
By:
Name:
Title: By ..... ,_
Judy mold, President, Board of Supervisors
COUNTY COUNSEL REVIEW AND APPROVAL (required if template content has been modified)
County Counsel:
go
Date:
EXHIBIT A
SCOPE OF SERVICE
June 18, 2013 — June 30, 2014
Contractor: City of San Rafael, Economic Development
Downtown Streets Team
Address: 1313 Fifth Ave.
P.O. Box 151560
San Rafael, CA 94915.1560
Telephone: (415) 485-3383
A.1 SCOPE OF SERVICES AND DUTIES
The services to be provided by CONTRACTOR and the scope of CONTRACTOR'S duties include the following:
Formation and Operation of San Rafael Downtown Streets Team:
A. Contractor will create a Downtown Streets Team "Workforce Development Program" in San Rafael.
B. The program will create volunteer work experience opportunities for at least twelve (12) homeless persons (hereinafter
"Team Members').
C. Contractor will provide support services to assist Team Members in transitioning to permanent employment. Such services
will include: job search classes and personalized job search support, employment development, developing Internship
placements, developing mentor opportunities, and case management for employment related activities.
D. Contractor will support Team Members to graduate to other community programs, including assisting Team Members to
Join the Mill Street substance abuse program and graduating from Mill Street to New Beginnings
E. Contractor will work closely with case managers at partner agencies including Ritter Center, St. Vincent s, the Community
Action Marin Care Team(s), Homeward Bound, and the Marin Employment Connection to assure services to individual
Team Members are coordinated.
F. Contractor will institute a business advisory committee to assist Team Members to develop marketable job skills.
G. Contractor will conduct outreach to businesses in order to expedite hiring processes for Team Members
H. Contractor will launch a Volunteer Work Experience Program, and will coordinate with the City of San Rafael on project
specifics.
Downtown Streets Team Proaram Obiectives:
1) Improve self sufficiency of Team Members, as measured by a Self -Sufficiency Matrix.
a. Contractor will develop a Self -Sufficiency Matrix assessment tool.
b. Contractor will administer the Self -Sufficiency Matrix assessment to all Team Members who have been in the
program for at least one month.
c. Contractor will administer follow up assessments with the same tool every six (6) months and upon program exit.
d. Team members will demonstrate improvement between initial and subsequent assessment(s).
2) Permanent Employment Placements.
a. At least 8 Team Members will obtain permanent employment.
b. 100% of such Team Members will retain employment for at least three (3) months.
3) Downtown Clean Up.
a. Team Members will cumulatively perform at least 8,700 hours of cleanup work each year in downtown San
Rafael.
b. Team Members will remove blight from the downtown San Rafael area as demonstrated by before and after
photos.
4) Community Relations
a. Contractor will work to improve business and community perceptions of homeless persons, as measured by:
I. Surveys that will be administered to the Business Improvement District at the onset and conclusion of the
contract term.
ii. Increasing membership on the business advisory team.
EXHIBIT A
SCOPE OF SERVICE
June 18, 2013 — June 30, 2014
Data Collection:
A. Contractor will maintain an up-to-date HMIS record for each Team Member. The required data elements will include basic
program information (agency and program names, locations) of service, etc.) and basic client information designed to
track progress towards meeting objectives listed above (including name, Social Security Number, age, gender,
race/ethnicity, income levels at program entry and exit, etc.).
B. Contractor will track all entries and exits to programs, input data in accordance with HMIS policy, comply with data
standard requirements and provide a timely response to requests for data necessary for mandated federal reporting.
C. Contractor will ensure HMIS data quality of no more than 3% missing or unreported data and timely entry of HMIS as per
HMIS policy.
EXHIBIT B
FEES & PAYMENT SCHEDULE
June 18, 2013 — June 30, 2014
B. PAYMENT METHOD:
COUNTY shall pay CONTRACTOR as follows:
B.1 BASE CONTRACT FEE.
CONTRACTOR shall submit a request for payment upon approval of this agreement. In no event shall total
compensation paid to CONTRACTOR under this Provision B.1 exceed One Hundred Fortv Three Thousand Dollars and
No Cents ($143.000.00) without an amendment to this Agreement approved by the County of Marin.
6.3 MAXIMUM CONTRACT AMOUNT: $143,000
EXHIBIT C
INSURANCE REDUCTIONMAIVER
June 18, 2013 — June 30, 2014
CONTRACTOR: City of San Rafael
CONTRACT TITLE: Downtown Streets Team
This statement shall accompany all requests for a reduction/waiver of insurance requirements. Please check the box if a waiver
is requested or fill in the reduced coverage(s) where indicated below:
Check Requested Limit CAO
Where Amount Use
Applicable Only
General Liability Insurance $
Automobile Liability Insurance 1 $
Workers' Compensation Insurance NMI
Professional Liability Deductible $
q
Please set forth the reasons for the requested reductions or waiver.
The parties understand, acknowledge and agree that Contractor has no commercially purchased general liability or
automobile liability insurance policies. The City is self-insured for general liability for the first $500,000 of liability, and
self-insured for all automobile liability. Under a "Memorandum of Coverage", the Contractor does participate in a
public -entity excess liability "pool", the California Joint Powers Risk Management Authority (CJPRMA), for additional
liability coverage in excess of the initial $500,000 self-insured retention. Upon request, CJPRMA will issue an
"additional covered party" certificate to County which will provide County with liability coverage in excess of the
$500,000 self-insurance amount up to $2,000,000 per occurrence.
I have confirmed the City of San Rafael is self-insured and carries the required coverage, but the City will not issue the
self-insurance letter until it's in receipt of the fully executed contract_ We have also requested copies of the
subcontractor's insurance.
Contract Manager Signature. Jason Satterfield
Date: 6/1012013
Extension: 3501
Approved by Risk Manager.
Date:
i
DEBARMENT CERTIFICATION
June 18, 2013 — June 30, 2014
rEntity i SAN RAF.AEL,CITY OF Status: ActiveC)
DUNS: 198423832 CAGE We: 4T88m -
Has Active Exclusion?: No DoDAAC: I View Details
Current Search Terms: downtown" streets• Team*
Clear search I
'_Save PDF If EVort Results N Print
Modified Date 7EWAscending
FILTER RESULTS No records found for current search.
EXHIBIT M
BUSINESS ASSOCIATE AGREEMENT
June 18, 2013 — June 30, 2014
To the extent Contractor Is a business associate as defined under the Federal Health Insurance Portability and
Accountability Act (HIPAA) and the HITECH Act, Contractor shall comply with the additional terms and conditions set
forth in this Exhibit (" NI") to the Professional Services Agreement. This Business Associate Agreement Exhibit "M"
supplements and is made a part of the Professional Services Agreement ("Agreement") by and between the County
of Marin, referred to herein as Covered Entity ('CE"), and City of San Rafael. referred to herein as Business
Associate ("BA"), to which this Exhibit "M" is an Incorporated attachment.
RECITALS
CE and BA have entered into a business relationship through which BA may receive Protected Health Information
("PHI") (defined below) from CE or create, collect, transmit, retain, process or otherwise use PHI on behalf of CE
pursuant to the terms of the Agreement
CE and BA intend to protect the privacy and provide for the security of PHI disclosed to, created by, or in any
manner used by, BA pursuant to the Agreement in compliance with the Health Insurance Portability and
Accountability Act of 1996, Public Law 104-191 ("HIPAN ), the Health Information Technology for Economic and
Clinical Health Act, Public Law 111-005 ("the HITECH Act'), and regulations promulgated thereunder by the U.S.
Department of Health and Human Services (the "HIPAA Regulations') and other applicable laws.
As part of the HIPAA Regulations, the Privacy Rule and the Security Rule (defined below) require CE to enter into a
contract containing specific requirements with BA prior to the disclosure of PHI, as set forth in, but not limited to, Title
45, Sections 164.314(a), 164.502(e) and 164.504(e) of the Code of Federal Regulations ("C.F.R.") and contained in
this Exhibit "M".
In consideration of the mutual promises below and the exchange of Information pursuant to this Exhibit W', the
parties agree as follows:
1. Definitions
a. Breach shall have the meaning given to such term under the HITECH Act [42 U.S.C. Section 17921].
b. Business Associate shall have the meaning given to such term under the Privacy Rule, the Security Rule,
and the HITECH Act, including but not limited to, 42 U.S.C. Section 17938 and 45 C.F.R. Section 160.103.
For purposes of this Exhibit W", use of the term Business Associate includes all Contractor agents,
employees, contractors or other associates providing services or assistance to Contractor under the
Agreement.
c. Covered Entity shall have the meaning given to such term under the Privacy Rule and the Security Rule,
including, but not limited to, 45 C.F.R. Section 160.103. For purposes of this Agreement, this term is
intended to mean the County of Marin.
d. Data Aggregation shall have the meaning given to such term under the Privacy Rule, including, but not
limited to, 45 C.F.R. Section 164.501.
e. Designated Record Set shall have the meaning given to such term under the Privacy Rule, including, but
not limited to, 45 C.F.R. Section 164.501.
f. DHHS Secretary shall mean the Secretary of the U.S. Department of Health and Human Services.
g. Electronic Health Record shall have the meaning given to such term in the HITECH Act, including, but not
limited to, 42 U.S.C. Section 17921.
h, Electronic Protected Health Information means Protected Health Information that is maintained in or
transmitted by electronic media.
1. Health Care Operations shall have the meaning given to such term under the Privacy Rule, including, but
not limited to, 45 C.F.R. Section 164.501.
EXHIBIT M
BUSINESS ASSOCIATE AGREEMENT
June 18, 2013 — June 30, 2014
J. Individual shall have the meaning given to such term under the Privacy Rule and the Security Rule,
including, but not limited to, 45 C.F.R. Section 160.103.
k. Privacy Rule shall mean the HIPAA Regulation that is codified at 45 C.F.R. Parts 160 and 164, Subparts A
and E.
1. Protected Health Information or PHI means any information, whether oral or recorded in any form or
medium: (t) 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 (11) that identifies the Individual or with respect to which there is a reasonable basis
to believe the information can be used to identify the Individual, and shall have the meaning given to such
term under the Privacy Rule, including, but not limited to, 45 C.F.R. Section 164.501. Protected Health
Information includes Electronic Protected Health Information [45 C.F.R. Sections 160.103, 164.501].
m. Protected Information shall mean PHI provided by CE to BA or created or received by BA on CE's behalf.
n. Security Rule shall mean the HIPAA Regulation that is codified at 45 C.F.R. Parts 160 and 164, Subparts A
and C.
o. Unsecured PHI shall have the meaning given to such term under the HITECH Act and any guidance Issued
pursuant to such Act including, but not limited to, 42 U.S.C. Section 17932(h).
2. Obligations of Business Associate
a. Permitted Uses. BA shall not use Protected information except for the purpose of performing BA's
obligations under the Agreement and as permitted under the Agreement and this Exhibit "M". Further, and
notwithstanding anything to the contrary above, BA shall not use Protected Information in any manner that
would constitute a violation of the Privacy Rule or the HITECH Act if so used by CE. However, BA may use
Protected Information (i) for the proper management and administration of BA, (ii) to carry out the legal
responsibilities of BA, or (iii) for Data Aggregation purposes for the Health Care Operations of CE [45 C.F.R.
Sections 164.504(e)(2)(ii)(A) and 164.504(e)(4)(i)].
b. Permitted Disclosures. BA shall not disclose Protected Information except for the purpose of performing
BA's obligations under the Agreement and as permitted under the Agreement and this Exhibit "M". Further,
and notwithstanding anything to the contrary above, BA shall not disclose Protected Information in any
manner that would constitute a violation of the Privacy Rule or the HITECH Act if so disclosed by CE.
However, BA may disclose Protected Information (1) for the proper management and administration of BA;
(ii) to carry out the legal responsibilities of BA; (iii) as required by law; or (iv) for Data Aggregation purposes
for the Health Care Operations of CE. If BA discloses Protected Information to a third party, BA must obtain,
prior to making any such disclosure, (1) reasonable written assurances from such third party that such
Protected Information will be held confidential as provided pursuant to this Exhibit "Wand only disclosed as
required by law or for the purposes for which it was disclosed to such third party, and (11) a written agreement
from such third party to immediately notify BA of any breaches of confidentiality of the Protected Information,
to the extent it has obtained knowledge of such breach [42 U.S.C. Section 17932; 45 C.F.R. Sections
164.504(6)(2)(i), 164.504(e)(2)(i)(B), 164.504(e)(2)(ii)(A) and 164.504(e)(4)(ii)].
c. Prohibited Uses and Disclosures. BA shall not use or disclose Protected Information for fundralsing or
marketing purposes. BA shall not disclose Protected Information to a health plan for payment or health care
operations purposes if the patient has requested this special restriction, and has paid out of pocket In full for
the health care item or service to which the PHI solely relates 42 U.S.C. Section 17935(a). BA shall not
directly or indirectly receive remuneration in exchange for Protected Information, except with the prior written
consent of CE and as permitted by the HITECH Act, 42 U.S.C. section 17935(d)(2); however, this prohibition
shall not affect payment by CE to BA for services provided pursuant to the Agreement.
d. Appropriate Safeguards. BA shall implement appropriate administrative, physical and technical safeguards
as are necessary to prevent the use or disclosure of Protected Information otherwise than as permitted by
the Agreement that reasonably and appropriately protect the confidentiality, integrity and availability of the
Protected Information, in accordance with 45 C.F.R. Sections 164.308, 164.310, and 164.312. [45 C.F.R.
Section 164.504(e)(2)(ii)(B); 45 C.F.R. Section 164.308(b)]. BA shall comply with the policies and
11
EXHIBIT M
BUSINESS ASSOCIATE AGREEMENT
June 18, 2013 — June 30, 2014
procedures and documentation requirements of the HIPAA Security Rule, including, but not limited to, 45
C.F.R. Section 164.316. [42 U.S.C. Section 17931]
Reporting of Improper Access, Use or Disclosure. Unless stricter reporting requirements apply In
accordance with federal or state laws or regulations, other provisions of the Agreement, or this Exhibit "M",
BA shall report to CE in writing of any access, use or disclosure of Protected Information not permitted by
the Agreement and this Exhibit "M", and any Breach of Unsecured PHI of which it becomes aware without
unreasonable delay and In no case later than 5 business days after discovery [42 U.S.C. Section 17921; 45
C.F.R. Section 164.504(e)(2)(ii)(C); 45 C.F.R. Section 164.308(b)].
f. Business Associate's Agents. BA shall ensure that any agents, including subcontractors, to whom It
provides Protected Information, agree in writing to the same restrictions and conditions that apply to BA with
respect to such PHI and Implement the safeguards required by paragraph d above with respect to PHI [45
C.F.R. Section 164.504(e)(2)(11)(D); 45 C.F.R. Section 164.308(b)]. BA shall Implement and maintain
sanctions against agents and subcontractors that violate such restrictions and conditions and shall mitigate
the effects of any such violation (see 45 C.F.R. Sections 164.530(f) and 164.530(e)(1)).
Access to Protected Information. BA shall make Protected Information maintained by BA or Its agents or
subcontractors In Designated Record Sets available to CE for inspection and copying within ten (10)
business days of a request by CE to enable CE to fulfill Its obligations under the Privacy Rule, Including, but
not limited to, 45 C.F.R. Section 164.524 [45 CF.R. Section 164.504(e)(2)(ii)(E)]. If BA maintains an
Electronic Health Record, BA shall provide such information in electronic format to enable CE to fulfill Its
obligations under the HITECH Act, Including, but not limited to, 42 U.S.C. Section 17935(e). If any Individual
requests access to Protection Information directly from BA or its agents or subcontractors, BA shall further
conform with and meet all of the requirements of 45 C.F.R. Section 164.524 and other applicable laws,
including the HITECH Act and related regulations.
Amendment of PHI. Within ten (10) business days of receipt of a request from CE for an amendment of
Protected Information or a record about an Individual contained in a Designated Record Set, BA or its
agents or subcontractors shall make such Protected Information available to CE for amendment and
Incorporate any such amendment to enable CE to fulfill its obligations under the Privacy Rule, including, but
not limited to, 45 C.F.R. Section 164.526. If any Individual requests an amendment of Protected Information
directly from BA or its agents or subcontractors, BA must notify CE in writing within five (5) business days of
the request. Any approval or denial of amendment of Protected Information maintained by BA or Its agents
or subcontractors shall be the responsibility of CE [45 C.F.R. Section 164.504(e)(2)(11)(F)].
Accounting Rights. Within ten (10) business days of notice by CE of a request for an accounting of
disclosures of Protected Information, BA and its agents or subcontractors shall make available to CE the
information required to provide an accounting of disclosures to enable CE to fulfill its obligations under the
Privacy Rule, including, but not limited to, 45 C.F.R. Section 164.528, and the HITECH Act, including but not
limited to 42 U.S.C. Section 17935(c), as determined by CE. BA agrees to implement a process that allows
for an accounting to be collected and maintained by BA and its agents or subcontractors for at least six (6)
years prior to the request. However, accounting of disclosures from an Electronic Health Record for
treatment, payment or health care operations purposes are required to be collected and maintained for only
three (3) years prior to the request, and only to the extent that BA maintains an Electronic Health Record
and is subject to this requirement. At a minimum, the information collected and maintained shall include: (i)
the date of disclosure; (il) the name of the entity or person who received Protected Information and, if
known, the address of the entity or person; (iii) a brief description of Protected Information disclosed and (iv)
a brief statement of purpose of the disclosure that reasonably informs the Individual of the basis for the
disclosure, or a copy of the Individuals' authorization, or a copy of the written request for disclosure. In the
event that the request for an accounting is delivered directly to BA or Its agents or subcontractors, BA shall
within five (5) business days of a request forward it to CE in writing. However, It shall be BA's responsibility
to prepare and deliver any such accounting requested and to do so in accordance with law. BA shall not
disclose any Protected Information except as set forth in Sections 2.b. of this Exhibit "M" [45 C.F.R. Sections
164.504(e)(2)(ii)(G) and 165.528].
Governmental Access to Records. BA shall make its internal practices, books and records relating to the
use, disclosure and privacy protection of Protected Information available to CE and to the DHHS Secretary
for purposes of determining BA's compliance with the Privacy Rule [45 C.F.R. Section 164.504(e)(2)(ii)(H)].
12
EXHIBIT M
BUSINESS ASSOCIATE AGREEMENT
June 18, 2013 — June 30, 2014
BA shall provide to CE a copy of any Protected Information that BA provides to the DHHS Secretary
concurrently with providing such Protected Information to the DHHS Secretary.
It. Minimum Necessary. BA and its agents or subcontractors shall request, use and disclose only the
minimum amount of Protected Information necessary to accomplish the purpose of the request, use, or
disclosure. [42 U.S.C. Section 17935(b); 45 C.F.R. Section 164.514(d)(3)j BA understands and agrees that
the definition of "minimum necessary" is in flux and shall keep itself informed of guidance issued by the
DHHS Secretary with respect to what constitutes "minimum necessary."
1. Data Ownership. BA acknowledges that BA has no ownership rights with respect to the Protected
Information.
m. Notification of Breach. Unless stricter reporting requirements apply in accordance with federal or state
laws or regulations, other provisions of the Agreement, or this Exhibit "M", BA shall notify CE within twenty-
four (24) hours of any suspected or actual breach of security, intrusion or unauthorized use or disclosure of
PHI of which BA becomes aware and/or any actual or suspected use or disclosure of data in violation of any
applicable federal or state laws or regulations. Unless CE provides BA with written notice that it will
undertake such obligations on behalf of BA, BA shall take (1) prompt corrective action to cure any such
deficiencies and (it) any action pertaining to such unauthorized disclosure required by applicable federal and
state laws and regulations. The parties agree that CE has the sole discretion to determine whether or not it
will undertake such obligations on behalf of BA and that, if it does, CE has the right to require BA to pay for
any or all costs associated therewith.
n. Breach Pattern or Practice by Covered Entity. Pursuant to 42 U.S.C. Section 17934(b), if the BA knows
of a pattern of activity or practice of the CE that constitutes a material breach or violation of the CE's
obligations under the Agreement or this Exhibit "M" or other arrangement, the BA must take reasonable
steps to cure the breach or end the violation_ If the steps are unsuccessful, the BA must terminate the
Agreement or other arrangement if feasible, or if termination Is not feasible, report the problem to the DHHS
Secretary. BA shall provide written notice to CE of any pattern of activity or practice of the CE that BA
believes constitutes a material breach or violation of the CE's obligations under the Agreement or this
Exhibit "M" or other arrangement within five (5) business days of discovery and shall meet with CE to
discuss and attempt to resolve the problem as one of the reasonable steps to cure the breach or end the
violation.
o. Audits, Inspection and Enforcement. Within ten (10) days of a written request by CE, BA and its agents or
subcontractors shall allow CE to conduct a reasonable inspection of the facilities, systems, books, records,
agreements, policies and procedures relating to the use or disclosure of Protected Infonnation pursuant to
this Exhibit "M" for the purpose of determining whether BA has complied with this Exhibit; provided,
however, that (1) BA and CE shall mutually agree in advance upon the scope, timing and location of such an
inspection, (it) CE shall protect the confidentiality of all confidential and proprietary information of BA to
which CE has access during the course of such inspection; and (III) CE shall execute a nondisclosure
agreement, upon terms mutually agreed upon by the parties, if requested by BA. The fact that CE inspects,
or fails to inspect, or has the right to inspect, BA's facilities, systems, books, records, agreements, policies
and procedures does not relieve BA of its responsibility to comply with this Exhibit "M", nor does CE's (i)
failure to detect or (Ii) detection, but failure to notify BA or require BA's remediation of any unsatisfactory
practices, constitute acceptance of such practice or a waiver of CE's enforcement rights under the
Agreement or this Exhibit "M". BA shall notify CE within ten (10) business days of learning that BA has
become the subject of an audit, compliance review, or complaint investigation by the Office for Civil Rights.
3. Termination of Agreement
a. Material Breach. A breach by BA of any provision of this Exhibit "M", as determined by CE, shall constitute
a material breach of the Agreement and shall provide grounds for immediate termination of the Agreement,
any provision in the Agreement to the contrary notwithstanding. [45 C.F.R. Section 164.504(e)(2)(iii)].
b. Judicial or Administrative Proceedings. Notwithstanding any provision in the Agreement to the contrary,
CE may terminate the Agreement, effective immediately, if (i) BA is named as a defendant in a criminal
proceeding for a violation of HIPAA, the HITECH Act, the HIPAA Regulations or other security or privacy
laws or (it) a finding or stipulation that the BA has violated any standard or requirement of HIPAA, the
13
EXHIBIT M
BUSINESS ASSOCIATE AGREEMENT
June 18, 2013 — June 30, 2014
HITECH Act, the HIPAA Regulations or other security or privacy laws is made in any administrative or civil
proceeding in which the party has been joined.
c. Effect of Termination. Upon termination of the Agreement for any reason, BA shall, at the option of CE,
return or destroy all Protected Information that BA or its agents or subcontractors still maintain In any form,
and shall retain no copies of such Protected Information. If return or destruction is not feasible, as
determined by CE, BA shall continue to extend the protections of Section 2 of this Exhibit "M" to such
information, and limit further use of such PHI to those purposes that make the return or destruction of such
PHI infeasible. [45 C.F.R. Section 164.504(e)(II)(2(I)). If CE elects destruction of the PHI, BA shall certify in
writing to CE that such PHI has been destroyed.
4. Indemnification
In addition to any other indemnification and defense obligation under the Agreement, BA has a separate and
additional obligation to Indemnify and defend CE against any claims or suits arising from BA's breach of its
obligations under the terms and conditions of this Exhibit "M".
S. Limitation of Liability
Notwithstanding any limitation of liability provision that may exist in the Agreement or this Exhibit "M", BA is solely
liable for any damages related to a breach of the BA's privacy or security obligations under the terms of this Exhibit
„M,.
6. Disclaimer
CE makes no warranty or representation that compliance by BA with this Exhibit "M", HIPAA, the HITECH Act, or the
HIPAA Regulations will be adequate or satisfactory for BA's own purposes. BA is solely responsible for all decisions
made by BA regarding the safeguarding of PHI.
I Certi5cattor�
To the extent that CE determines that such examination Is necessary to comply with CE's legal obligations pursuant
to HIPAA relating to certification of its security practices, CE or its authorized agents or contractors, may, at CE's
expense, examine BA's facilities, systems, procedures and records as may be necessary for such agents or
contractors to certify to CE the extent to which BA's security safeguards comply with HIPAA, the HITECH Act, the
HIPAA Regulations or this Addendum.
8. Amendment
a. Amendment to Comply with Law. The parties acknowledge that state and federal laws relating to data
security and privacy are rapidly evolving and that amendment of the Agreement or this Exhibit "M" 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 implement the standards and requirements of HIPAA, the
HITECH Act, the Privacy Rule, the Security Rule and other applicable laws relating to the security or
confidentiality of PHI. The parties understand and agree that CE must receive satisfactory written assurance
from BA that BA will adequately safeguard all Protected Information. Upon the request of either party, the
other party agrees to promptly enter into negotiations concerning the terms of an amendment to this Exhibit
"M" embodying written assurances consistent with the standards and requirements of HIPAA, the HITECH
Act, the Privacy Rule, the Security Rule or other applicable laws. CE may terminate the Agreement upon
thirty (30) days written notice in the event (i) BA does not promptly enter into negotiations to amend the
Agreement or this Exhibit "M" when requested by CE pursuant to this Section or (ii) BA does not enter not
enter into an amendment to the Agreement or this Exhibit "M" providing assurances regarding the
safeguarding of PHI that CE, in its sole discretion, deems sufficient to satisfy the standards and
requirements of applicable laws.
b. Amendment of Exhibit "M". This Exhibit "M" maybe modified or amended at anytime without amendment
of the Agreement, but only by written agreement of the parties.
9. Assistance in Litigation of Administrative Proceedings
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A ^^ d r ,• x r
EXHIBIT M
BUSINESS ASSOCIATE AGREEMENT
June 18, 2013 — June 30, 2014
BA shall make itself, and any subcontractors, employees or agents assisting BA in the performance of its obligations
under the Agreement, available to CE, at no cost to CE, to testify as witnesses, or otherwise, in the event of litigation
or administrative proceedings being commenced against CE, its directors, officers or employees based upon a
claimed violation of HIPAA, the HITECH Act, the Privacy Rule, the Security Rule, or other laws relating to security
and privacy, except where BA or its subcontractor, employee or agent is a named adverse party.
10. No Third -Party Beneficiaries
Nothing express or implied in the Agreement or this Exhibit "M" is Intended to confer, nor shall anything herein confer,
upon any person other than CE, BA and their respective successors or assigns, any rights, remedies, obligations or
liabilities whatsoever.
11. Effect on Agreement
Except as specifically required to implement the purposes of this Exhibit "M", or to the extent inconsistent with this
Exhibit "M", all other terms of the Agreement shall remain in force and effect.
12. Interpretation
The provisions of this Exhibit "M" shall prevail over any provisions in the Agreement that may conflict or appear
inconsistent with any provision in this Exhibit W. This Exhibit "M" and the Agreement shall be interpreted as broadly
as necessary to implement and comply with HIPAA, the HITECH Act, the Privacy Rule and the Security Rule. The
parties agree that any ambiguity In this Exhibit "M" shall be resolved in favor of a meaning that complies and is
consistent with HIPAA. the HITECH Act, the Privacy Rule and the Security Rule.
13. Survival of Provisions
Excepting only the provisions regarding BA's use or disclosure of Protected Information for the purpose of performing
BA's obligations under the Agreement, the terms of this Exhibit "M" shall survive the termination of the Agreement so
long as PHI obtained or generated during the term of the Agreement is retained by BA.
15