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PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement (“Agreement”) is entered into effective November 21, 2023 (“Effective Date”) and is between the City of Manhattan Beach, a California municipal corporation (“City”) and Beach Cities Health District, a public health government agency formed under California’s Local Health Care District law (“Consultant”). City and Consultant are sometimes referred to herein as the “Parties”, and individually as a “Party”.
RECITALS
A. On December 7, 2021, through City Council Resolution No. 21- 0114, the City entered into initial settlement agreement s with distributors of o pioids, AmerisourceBergen, Cardinal Health, and McKesson, and opioid manufacturers, Janssen Pharmaceuticals, Johnson & Johnson, Ortho-McNeil-Janssen Pharmaceuticals, and Janssen Pharmaceutica, for abatement of the opioid epidemic.
B. On April 18, 2023, through City Council Resolution No. 23- 0039, the City entered into additional settlement a greements with opioid manufacturers Teva and Allergan, and chain pharmacies CVS, Walgreens, and Walmart , for abatement of the opioid epidemic.
C. City desires to utilize the services of Consultant as an independent contractor to provide substance abuse and opioid remediation services.
D. Consultant represents that it is fully qualified to perform such services by virtue of its experience and the training, education and expertise of its principals and employees.
E. City desires to retain Consultant and Consultant desires to serve City to perform these services in accordance with the terms and conditions of this Agreement.
The Parties therefore agree as follows:
1. Consultant’s Services.
A. Scope of Services. Consultant shall perform the services described in the Scope of Services (“Services”) for substance abuse remediation services, attached as Exhibit A. City may request, in writing, changes in the Services to be performed. Any changes to the Services or cost of work must be in writing and mutually agreed upon by the Parties. If the cost for all Services reaches the Maximum Compensation (defined below in Section 3.A) at any point during the Term (defined below in Section 2), Consultant shall have no obligation to perform further Services unless the Parties execute an amendment to this Agreement in writing that provides a new maximum allowable cost for Services.
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B. Party Representatives. For the purposes of this Agreement, the City Representative shall be the City Manager, or such other person designated in writing by the City Manager (“City Representative”). For the purposes of this Agreement, the Consultant Representative shall be Ja cqueline Sun, Director of Well- Being Services at Beach Cities Health District (“Consultant Representative”). The Consultant Representative shall directly manage Consultant’s Services under this Agreement.
Consultant shall not change the Consultant Representative without City’s prior written consent.
C. T
ime for Performance . Consultant shall commence the Services on the Effective Date and shall perform all Services by the deadline agreed upon in advance by the City Representative and Consultant or, if no deadline is established, with reasonable diligence.
D. S
tandard of Performance. Consultant shall perform all Services under this Agreement in accordance with the standard of care generally exercised by like professionals under similar circumstances.
E. P
ersonnel . Consultant has, or will secure at its own expense, all personnel required to perform the Services required under this Agreement. All of the Services required under this Agreement shall be performed by Consultant or under its supervision, and all personnel engaged in the work shall be qualified to perform such Services.
F. C
ompliance with Laws. Consultant shall provide Services in compl iance with all applicable federal, state and local laws, ordinances, codes, regulations and requirements.
G. P
ermits and Licens es. Consultant shall obtain and maintain during the Agreement Term all necessary licenses, permits and certificates required by law for the provision of Services under this Agreement, including a business license.
2. Term of Agreement. The term of this Agreement shall be from the Effective Date through November 21, 2024, unless sooner terminated as provided in Section 12 of this Agreement or extended upon the Parties’ mutual written agreement (“Term”).
3. Compensation.
A. Compensation. As full compensation for Consultant’s Services provided under this Agreement, City shall pay Consultant at the rates set forth in the Approved Fee Schedule attached hereto as Exhibit B. The total costs for all Services shall not exceed $82,733, or such other amount agreed to by the Parties through an amendment in writing to this Agreement under Section
1.A above (“Maximum Compensation”).
B. Expenses. The Maximum Compensation includes reimbursement for all expenditures incurred in the performance of this Agreement.
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C. Unauthorized Services and Unanticipated Expenses . City will not pay for any services not specified in the Scope of Services, unless the City Council or the City Representative, if applicable, and the Consultant Representative authorize such services in writing prior to Consultant’s performance of those services or incurrence of additional expenses. Any additional services authorized by the City Council, or (where authorized) the City Manager shall be compensated at the rates set forth in Exhibit B , or, if not specified, at a rate mutually agreed to by the Parties. At the request of the Co nsultant, the City Council may, in writing, reimburse Consultant for an unanticipated expense at its actual cost. City shall make payment for additional services and expenses in accordance with Section
4 of this Agreement.
4. Method of Payment.
A. Invoices. Consultant shall submit to City an invoice, on a monthly basis, for the Services performed pursuant to this Agreement. Each invoice shall itemize the Services rendered during the billing period, hourly rates charged, if applicable, and the amount due. City shall review each invoice and notify Consultant of any disputed invoice amounts in writing within ten (10) Business Days of City’s receipt of the applicable invoice.
B. Payment. City shall pay Consultant all undisputed invoice amounts within thirty ( 30) calendar days after City’s receipt of the applicable invoice(s), up to the Maximum Compensation set forth in Section 3 of this Agreement. City does not pay interest on past due amounts. City shall not withhold federal payroll, state payroll or other taxes, or other similar deductions, from payments made to Consultant. Notwithstanding the preceding sentence, if Consultant is a nonresident of California, City will withhold the amount required by the Franchise Tax Board pursuant to Revenue and Taxation Code Section 18662 and applicable regulations.
C. Audit of Records
. Upon City’s reasonable notice to Consultant, Consultant shall make all records, invoices, time cards, cost control sheets and other records maintained by Consultant in connection with this Agreement available during Consultant’s regular working hours to City for review and audit by City at no cost or expense to Consultant.
5. Independent Contractor. Consultant is, and shall at all times remain as to City, a wholly independent contractor. Neither Party shall have power to incur any debt, obligation, or liability on behalf of the other Party. Neither Party nor any of its agents shall have control over the cond uct of the other Party or any of the other Party’s employees.
Neither Party shall, at any time, or in any manner, represent that it or any of its officers, agents or employees are in any manner employees of the other Party.
6. Information and Documents.
A. From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “ Receiving Party”), non -public, proprietary, and confidential information of Disclosing Party DocuSign Envelope ID: 305C1708-B721-47F0-B45F-8DB5D6F761A2
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(“Confidential Information”) for performance of this Agreement ; provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 6; (b) is or becomes available to the Receiving Party on a non- confidential basis from a third-party source, provided that such third party was not known by the Receiving Party to be prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure; (d) was or is independently developed by Receiving Party without using any Confidential Information ; or (e) is protected health information under 45 C.F.R. § 160.103, the use and disclosure of which shall be governed exclusively by the Business Associate Agreement executed by the Parties and attached to this Agreement as Exhibit D.
B. The Receiving Party shall: (a) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would use to protect its own Confidential Information, but in no event with less than a co mmercially reasonable degree of care; ( b) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and ( c) not disclose any such Confidential Information to any other person or entity without the Disclosing Party’s written consent . Notwithstanding the foregoing, each Party reserves the right to disclose instances of misconduct that could, in such Party’s reasonable discretion, violate federal, state, or local laws or regulations. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to noti fy Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy.
C. In addition, and notwithstanding anything to the contrary in this Section 6, both Parties agree to comply with the Health Information Portability and Accountability Act of 1996 , as amended (“HIPAA”) and the California Confidentiality of Medical Information Act.
D. The Parties have executed a Business Associate Agreement, which is attached to and incorporated into this Agreement as Exhibit D. Consultant, to the extent permitted by applicable law, shall promptly notify City should Consultant, its officers, employees, agents or subcontractors be served with any summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and the work performed hereunder
E. All data, reports, documents, or other information developed by Consultant in the course of performing Services (“Data”) and furnished to City is the exclus ive property and Confidential Information of Consultant; provided that, Consultant her eby grants a perpetual, royalty-free, non-exclusive license to City to use all or any portion of the Data submitted by Consultant as City deems appropriate. Upon complet ion of, or in DocuSign Envelope ID: 305C1708-B721-47F0-B45F-8DB5D6F761A2
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the event of termination or suspension of this Agreement, City may retain copies of the Data, subject to the property and ownership rights of Consultant.
F. The Parties’ obligations under this Section 6 shall survive the expiration or termination of this Agreement.
7. Conflicts of Interest. Consultant affirms that it presently has no interest and shall not have any interest, direct or indirect, w hich would conflict in any manner with the performance of the Services contemplated by this Agreement. Consultant and its officers, employees, associates and subcontractors, if any, shall comply with all conflict of interest statutes of the State of California applicable to Consultant’s Services under this Agreement, including the Political Reform Act (Gov. Code § 81000, et seq. ) and Government Code Section 1090. During the term of this Agreement, Consultant may perform similar Services for other clients, but Consultant and its officers, employees, associates and subcontractors shall not, without the City Representative’s prior written approval, perform work for another person or entity for whom Consultant is not currently performing work that would require Consultant or one of its officers, employees, associates or subcontractors to abstain from a decision under this Agreement pursuant to a conflict of interest statute. Consultant shall incorporate a clause substantially similar to this Section into any subcontract that Consultant executes in connection with the performance of this Agreement.
8. Indemnification, Hold Harmless, and Duty to Defend.
A. Indemnities.
1) To the fullest extent permitted by law, Consultant shall, at its sole cost and expense, defend, hold harmless and indemnify City and its elected officials, officers, attorneys, agents, employees, designated volunteers, successors, assigns and those City agents serving as independent contractors in the role of City officials (collectively, “Indemnitees”), from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, expenses, judgments, penalties, liens, and losses of any nature whatsoever, including fees of accountants, attorneys, or other professionals and all costs associated therewith and the payment of all consequential damages (collectively , “Liabilities”), in law or equity, whether actual, alleged or threatened, which arise out of or result from: (a) Consultant’s willful misconduct, fraud, or gross negligence in the performance of the Services or (b) Consultant’s violation of applicable law relating to Consultant’s performance of its obligations under this Agreement, except to the extent that such violation was due to City’s actions or omissions.
Consultant shall defend the Indemnitees in any action or actions filed in connection with any Liabilities with counsel of Consultant’s choice, which counsel shall be reasonably acceptable to the Indemnitees . The Indemnitees shall be entitled to participate in Consultant’s defense of any such action; provided, that Consultant shall have no obligation to reimburse the Indemnitees for any expenses and costs incurred by Indemnitees in connection therewith.
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2) To the fullest extent permitted by law, City shall, at its sole cost and expense, defend, hold harmless and indemnify Consultant and its employees, agents, and successors from and against any and all Liabilities, in law or equity, whether actual, alleged or threatened, which arise out of or result from (a) City’s willful misconduct, fraud, or gross negligence in the performance of its obligations under this Agreement or (b) City’s violation of applicable law relating to City’s performance of its obligations under this Agreement, except to the extent that such violation w as due to Consultant’s actions or omissions. City shall defend Consultant in any action or actions filed in connection with any Liabilities with counsel of City’s choice, which counsel shall be reasonably acceptable to Consultant. Consultant shall be entitled to participate in City’s defense of any such action; provided, that City shall have no obligation to reimburse Consultant for any expenses and costs incurred by Consultant in connection therewith. 3) Each Party shall be responsible for payment of its own taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity. 4) Each Party shall fully comply with the workers’ compensation law regarding such Party and its employees. Each Party shall indemnity and hold harmless the ot her Party from any failure of such Party to comply with applicable workers’ compensation law.
5) Consultant shall obtain executed indemnity agreements with provisions identical to those in this S ection 8 from each and every subcontractor or any other person or entity involved by, for, with or on behalf of Consultant in the performance of this Agreement. If Consultant fails to obtain such indemnity obligations, Cons ultant shall be fully responsible and indemnify, hold harmless and defend the Indemnitees from and against any and all Liabilities at law or in equity, whether actual, alleged or threatened, which arise out of, are claimed to arise out of or result from: (a) such subcontractor’s willful misconduct, fraud, or gross negligence in the performance of the Services; or (b) such subcontractor’s violation of applicable law relating to Consultant’s performance of its obligations under this Agreement, except to the extent that such violation was due to City’s actions or omissions.
B. Workers’ Compensation Acts not Limiting. Consultant’s indemnifications and obligations under this Section 8 , or any other provision of this Agreement, shall not be limited by the provisions of any workers’ compensation act or similar act. Consultant expressly waives its statutory immunity under such statutes or laws as to City, its officers, agents, employees and volunteers.
C. Insurance Requirements not Limiting. City does not, and shall not, waive any rights that it may possess against Consultant because of the acceptance by City, or the deposit with City, of any insurance policy or certificate required pursuant to this Agreement. The indemnities in this Section
8 shall apply regardless of whether or not
any insurance policies are determined to be applicable to the Liabilities, tax, assessment, penalty or interest asserted against City.
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D. Survival of Terms. The Parties’ indemnifications and obligations under this Section 8 shall survive the expiration or termination of this Agreement.
9. Insurance.
A. Minimum Scope and Limits of Insurance. Consultant shall procure and at all times during the Term of this Agreement carry, maintain, and keep in full force and effect, insurance as follows:
1) Commercial General Liability Insurance with a minimum limit of $2,000,000.00 per occurrence for bodily injury, personal injury and property damage and a general aggregate limit of $2,000,000. 00 per project or location. If Consultant is a limited liability company, the commercial general liability coverage shall be amended so that Consultant and its managers, affiliates, employees, agents and other persons necessary or incidental to its operation are insureds.
2) Automobile Liability Insurance for any owned, non- owned or hired vehicle used in connection with the performance of this Agreement with a combined single limit of $1,000,000.00 per accident for bodily injury and property damage. If Consultant does not use any owned, non- owned or hired vehicles in the performance of Services under this Agreement, Consultant shall obtain a non- owned auto endorsement to the Commercial General Liability policy required under subparagraph A(1) of this Section 9. 3) Workers’ Compensation Insurance as required by the State of California and Employer’s Liability Insurance with a minimum limit of $1,000,000.00 per accident for bodily injury or disease. If Consultant has no employees while performing Services under this Agreement, workers’ compensation policy is not required, but Consultant shall execute a declaration that it has no employees. 4) Professional Liability/Errors and Omissions Insurance with minimum limits of $2,000,000.00 per claim and in aggregate.
B. Acceptability of Insurers. The insurance policies required under this Section 9 shall be issued by an insurer admitted to write insurance in the State of California with a rating of A:VII or better in the latest edition of the A.M. Best Insurance Rating Guide.
Self insurance shall not be considered to comply with the insurance requirements under this Section.
C. Additional Insured. The commercial general and automobile liability policies shall contain an endorsement naming City and its elected and appointed officials, officers, employees, agents and volunteers as additional insureds. This provision shall also apply to any excess/umbrella liability policies.
D. P
rimary and Non- Contributing. The insurance policies required under this Section shall apply on a primary non-contributing basis in relation to any other insurance or self-insurance available to City. Any in surance or self-insurance maintained by City, DocuSign Envelope ID: 305C1708-B721-47F0-B45F-8DB5D6F761A2
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its elected and appointed officials, officers, employees, agents or volunteers, shall be in excess of Consultant’s insurance and shall not contribute with it.
E. Deductibles and Self -Insured Retentions. Any deductibles or self -insured retentions must be declared to and approved by City. At City’s option, Consultant shall either reduce or eliminate the deductibles or self -insured retentions with respect to City, or Consultant shall procure a bond guaranteeing payment of losses and expenses.
F. C
ancellations or Modifications to Coverage. Consultant shall not cancel, reduce or otherwise modify the insurance policies required by this Section during the Term of this Agreement, except to the extent such modifications do not render the insurance policies’ terms non-compliant with the requirements specified in this Section
9. The commercial general and automobile liability policies required under this Agreement shall be endorsed to state that should the issuing insurer cancel the policy before the expiration date, the issuing insurer will endeavor to mail thirty ( 30) Business Days’ prior written notice to City. If any insurance policy required under this Section is canceled or reduced in coverage or limits, Consultant shall, within two (2) Business Days of notice from the insurer, phone, fax or notify City via certified mail, return receipt requested, of the cancellation of or changes to the policy.
G. City Remedy for Noncompliance. If Consultant does not maintain the policies of insurance required under this Section in full force and effect during the Term of this Agreement, or in the event any of Consultant’s policies do not compl y with the requirements under this Section, City may either immediately terminate this Agreement or, if insurance is available at a reasonable cost, City may, but has no duty to, take out the necessary insurance and pay, at Consultant’s expense, the premium thereon.
Consultant shall promptly reimburse City for any premium paid by City or City may withhold amounts sufficient to pay the premiums from payments due to Consultant.
H. E
vidence of Insurance . Prior to the performance of Services under this Agreement, Consultant shall furnish City’s Risk Manager with a certificate or certificates of insurance and all original endorsements evidencing and effecting the coverages required under this Section, which endorsements shall be reasonably acceptable to City and shall be deemed acceptable and approved by City unless City rejects such certificates and endorsements in writing specifying all objections thereto within ten (10) days of receipt of such items. Consultant may provide complete, certified copies of all required insurance policies to City. Consultant shall maintain current endorsements on file with City’s Risk Manager. Consultant shall provide proof to City’s Risk Manager that insurance policies expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Consultant shall furnish such proof at least two (2) weeks prior to the expiration of the coverages.
I. I
ndemnity Requirement s not Limiting . Procurement of insurance by Consultant shall not be construed as a limitation of Consultant’s liability or as full performance of Consultant’s duty to indemnify City under Section 8 of this Agreement.
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J. Subcontractor Insurance Requirements. Consultant shall require each of its subcontractors identified on Exhibit A to maintain insurance coverage that meets all of the requirements of this Section.
10. Mutual Cooperation.
A. City’s Cooperation. City shall provide Consultant with all available pertinent Data, documents and other requested information as is reasonably necessary for Consultant’s proper performance of the Services required under this Agreement.
B. Cons ultant’s Cooperation. In the event any claim or action is brought against City relating to Consultant’s performance of Services rendered under this Agreement, Consultant shall render any reasonable assistance that City requires, subject to (a) Consultant’s attorney-client privilege and (b) Consultant shall not be required to incur any costs or expenses in connection with its obligations under this Section
10.B.
11. Records and Inspections. Consultant shall maintain complete and accurate records with respect to time, costs, expenses, receipts, correspondence, and other such information required by City that relate to the performance of the Services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Such records, together with supporting documents, shall be maintained for a period of three (3) years after receipt of final payment. City shall have the audit and inspection right s described in Section 4.C above.
12. Termination of Agreement.
A. Right to Terminate. Either Party may terminate this Agreement at any time, at will, for any reason or no reason, after giving written notice to the other Party at least sixty ( 60) calendar days before the termination is to be effective. Either Party may terminate this Agreement effective fifteen (15) calendar days after the date that a written notice of termination is given to the other Party of a material breach of this Agreement by the other Party; provided, however, the Agreement shall not terminate if the material breach is cured to the reasonable satisfaction of the complaining Party prior to the expiration of such fifteen (15) day period.
B. O
bligations upon Termination. Consultant shall cease all work under this Agreement on or before the effective date of termination specified in the notice of termination. In the event of City’s termination of this Agreement due to no fault or failure of performance by Consultant, City shall pay Consultant based on the percentage of work satisfactorily performed up to the effective date of termination. In no event shall Consultant be entitled to receive more than the amount that would be paid to Consultant for the full performance of the Services required by this Agreement. Consultant shall have no other claim against City by reason of such termination, including any claim for compensation.
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13. Force Majeure. Consultant shall not be liable for any failure to perform its obligations under this Agreement if there is reasonable evidence that such failure was due to acts of God, embargoes, inability to obtain labor or materials or reasonable substitutes for labor or materials, governmental restrictions, judicial orders, enemy or hostile governmental action, fire or other casualty, or other causes beyond Consultant’s reasonable control and not due to any act by Consultant.
14. Notices. Any notice, consent, request, demand, bill, invoice, report or other communication required or permitted under this Agreement shall be in writing and conclusively deemed effective: (a) on personal delivery, (b) on confirmed delivery by courier service during Consultant’s and City’s regular business hours, or (c) three Business Days after deposit in the United States mail, by first class mail, postage prepaid, and addressed to the Party to be notified as set forth below:
If to City:
Attn: George Gabriel
City of Manhattan Beach
1400 Highland Avenue
Manhattan Beach, California 90266
Telephone: 310-802-5054
Email: [email protected]
If to Consultant:
Tom Bakaly
Beach Cities Health District
1200 Del Amo St
Redondo Beach, CA
Telephone: 310-374-3426
Email: [email protected]
With a courtesy copy to:
Quinn M. Barrow, City Attorney
1400 Highland Avenue
Manhattan Beach, California 90266
Telephone: (310) 802-5061
Email: [email protected]
With a courtesy copy to:
Attn: Robert Miller, Esq.
Hooper, Lundy & Bookman, P.C.
1875 Century Park East, Suite 1600
Los Angeles, CA 90067
Telephone: (310) 551-8151
Email: [email protected]
15. Non-Discrimination and Equal Employment Opportunity. In the performance of this Agreement, Consultant shall not discriminate against any employee, subcontractor or applicant for employment because of race, color, religious creed, sex, gender, gender identity, gender expression, marital status, national origin, ancestry, age, physical disability, mental disability, medical condition, genetic information, sexual orientation or other basis prohibited by law. Consultant will take affirmative action to ensure that subcontractors and applicants are employed, and that employees are treated during employment, without regard to their race, color, religious creed, sex, gender, gender identity, g ender expression, marital status, national origin, ancestry, age, physical disability, mental disability, medical condition, genetic information or sexual orientation.
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16. Prohibition of Assignment and Delegation. Neither Party shall assign any of its rights or delegate any of its duties under this Agreement, either in whole or in part, without the other Party’s prior written consent. A Party’s consent to an assignment of rights under this Agreement shall not release the other Party from any of its obligations or alter any of its primary obligations to be performed under this Agreement. Any attempted assignment or delegation in violation of this Section 16 shall be void and of no effect and shall entitle the other Party to terminate this Agreement. As used in this Section, “assignment” and “delegation” means any sale, gift, pledge, hypothecation, encumbrance or other transfer of all or any portion of the rights, obligations, or liabilities in or arising from this Agreement to any person or entity, whether by operation of law or otherwise, and regardless of the legal form of the transaction in which the attempted transfer occurs.
17. No Third Party Beneficiaries Intended. This Agreement is made solely for the benefit of the Parties to this Agreement and their respective successors and assigns, and no other person or entity may have or acquire a right by virtue of this Agreement.
18. Waiver. No delay or omission to exercise any right, power or remedy accruing to a Party under this Agreement shall impair any right, power or remedy of such Party , nor shall it be construed as a waiver of, or consent to, any breach or default. No waiver of any breach, any failure of a condition, or any right or remedy under this Agreement shall be (1) effective unless it is in writing and signed by the Party making the waiver, (2) deemed to be a waiver of, or consent to, any other breach, failure of a condition, or right or remedy, or (3) deemed to constitute a continuing waiver unless the writing expressly so states.
19. Final Payment Acceptance Constitutes Release. The acceptance by Consultant of the final payment contemplated under this Agreement shall operate as and be a release of City from all claims and liabilities for fees payable to Consultant for Consultant’s performance of the Services; provided, that it shall not operate as a release of any other amounts payable to Consultant hereunder, including without limitation any indemnification payments. However, approval or payment by City shall not constitute, nor be deemed, a release of the responsibility and liability of Consultant, its employees, subcontractors and agents for the accuracy and competency of the information provided and/or work perf ormed; nor shall such approval or payment be deemed to be an assumption of such responsibility or liability by City for any defect or error in the work prepared by Consultant, its employees, subcontractors and agents.
20. Non-Appropriation of Funds. Payments to be made to Consultant by City for Services performed within the current fiscal year are within the current fiscal budget and within an available, unexhausted fund. In the event that City does not appropriate sufficient funds for payment of Consultant’s Services beyond the current fiscal year, this Agreement shall cover payment for Consultant’s S ervices only to the conclusion of the last fiscal year in which City appropriates sufficient funds and shall automatically terminate at the conclusion of such fiscal year.
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21. Exhibits. Exhibits A and B constitute a part of this Agreement and are incorporated into this Agreement by this reference. If any inconsistency exists or arises between a provision of this Agreement and a provision of any exhibit, or between a provision of this Agreement and a provision of Consultant’s proposal, the provisions of this Agreement shall control.
22. Entire Agreement and Modification of Agreement. This Agreement and all exhibits referred to in this Agreement constitute the final, complete and exclusive statement of the terms of the agreement between the Parties pertaining to the subject matter of this Agreement and supersede all other prior or contemporaneous oral or written understandings and agreements of the Parties. No Party has been induced to enter into this Agreement by, nor is any Party relying on, any representation or warranty except those expressly set forth in this Agreement. This Agreement may not be amended, nor any provision or breach hereof waived, except in a writing signed by both Parties.
23. Headings. The headings in this Agreement are included solely for convenience of reference and shall not affect the interpretation of any provision of this Agreement or any of the rights or obligations of the Parties to this Agreement.
24. Word Usage. Unless the context clearly requires otherwise, (a) the words “shall,” “will” and “agrees” are mandatory and “may” is permissive; (b) “or” is not exclusive; and (c) “includes” or “including” are not limiting.
25. Business Days. “Business Days” means days Manhattan Beach City Hall is open for business.
26. Governing Law and Choice of Forum. This Agreement, and any dispute arising from the relationship between the Parties to this Agreement, shall be governed by and construed in accordance with the l aws of the State of California, except that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in interpreting this Agreement. Any dispute that arises under or relates to this Agreement (whether contract, tort or both) shall be resolved in a superior court with geographic jurisdiction over the City of Manhattan Beach.
27. Attorneys’ Fees. In any litigation or other proceeding by which a Party seeks to enforce its rights under this Agreement (whether in contract, tort or both) or seeks a declaration of any rights or obligations under this Agreement, the prevailing Party shall be entitled to recover all attorneys’ fees, experts’ fees, and other costs actually incurred in connection with such litigation or other proceeding, in addition to all other relief to which that Party may be entitled.
28. Severability. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, invalid or unenforceable for any reason, the validity of and enforceability of the remaining provisions of this Agreement shall not be affected and continue in full force and effect.
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29. Counterparts. This Agreement may be executed in multiple counterparts, all of which shall be deemed an original, and all of which will constitute one and the same instrument.
30. Corporate Authority. Each person executing this Agreement on behalf of his or her Party warrants that he or she is duly authorized to execute this Agreement on behalf of that Party and that by such execution, that Party is formally bound to the provisions of this Agreement.
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2812839v1.doc City of MB Form
The Parties, through their duly authorized representatives are signing this Agreement on the dates stated below, effective as of the Effective Date.
City:
City of Manhattan Beach,
a California municipal corporation
By:
Name: Bruce Moe
Title: City Manager
Date:
ATTEST:
By:
Name: Liza Tamura
Title: City Clerk
Date:
APPROVED AS TO FORM:
By:
Name: Quinn M. Barrow
Title: City Attorney
Date:
APPROVED AS TO FISCAL IMPACT:
By:
Name: Steve Charelian
Title: Finance Director
Date:
APPROVED AS TO CONTENT:
By:
Name: George Gabriel
Title: Assistant to the City Manager
Date:
Consultant:
Beach Cities Health District,
a Public Health Government Agency
By:
Name: Tom Bakaly
Title: Chief Executive Officer
Date:
DocuSign Envelope ID: 305C1708-B721-47F0-B45F-8DB5D6F761A2 11/9/2023
11/13/2023
11/13/2023
11/15/2023
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EXHIBIT A
SCOPE OF SERVICES
1. Services to be Provided. The Services to be provided under this Agreement shall be those set forth below:
1.1. Provision of Programs/Activities in Alignment with Allowable Uses. No less than 50% of reimbursable programs/activities will be used for one or more of the High Impact Abatement Activities outlined by the California Department of Health Care Services, and all programs/activities will fall under allowable uses under the California Opioid Settlements Allowable Expenditures, as reflected in Exhibit C. Programs/activities provided by the Consultant include, but may not be limited to the following:
1.1.1. S
ubstance Use Counseling and Referrals for Youth and Young Adults.
Consultant, through allcove Beach Cities, will provide support groups, individual and family counseling, and group facilitation for those with, or at risk of developing, opioid use disorder and any co-occurring substance use disorder or mental health conditions. These services also serve as warm- handoff programs to direct people to recovery services through the process of Screening, Brief Intervention and Referral to Treatment (SBIRT).
1.1.2. S
ubstance Abuse Education and Prevention Programs. Consultant will support efforts to prevent the misuse of opioids. This includes community education forums, coalition-building activities that engage in drug prevention efforts, and media campaigns to prevent opioid misuse.
1.1.3. N
aloxone Distribution and Training. Consultant shall provide free naloxone education and trainings for schools, parents, community organizations and first responders. These trainings and forums will include the distribution of naloxone kits to schools, first responders and the public.
1.1.4. O
pioid Use Disorder Support for Unsheltered Homeless Individuals.
Services for individuals experiencing homelessness with opioid use disorder and any co-occurring substance use disorder/mental health conditions including counseling services, medication-assisted treatment and detox services.
2. S
ervices for Manhattan Beach. Services billed under this Agreement for direct counselling services, screening, referrals, and wrap-around services for individuals in recovery will be limited to residents of Manhattan Beach. Programs/Activities billed for Substance Use Prevention efforts and Naloxone distribution and training will either specifically target residents/staff of Manhattan Beach or be available to the general public where Manhattan Beach residents/staff can participate and benefit. If not taking place specifically in the City of Manhattan Beach, these Substance Use Prevention programs and activities will be located within the Beach Cities of Hermosa Beach, Manhattan Beach, or Redondo Beach.
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3. Administrative Support in Reporting Requirements. While participating subdivisions (i.e., the City of Manhattan Beach) are responsible for reporting their use and expenditure via an online reporting tool from the Department of Health Care Services annually, Consultant will support the City of Manhattan Beach in preparing the reporting requirements for the settlement. This includes record keeping and reporting of the expenditures by program/activity, narratives of how each program correlates with allowable uses, and background on the purpose of each program/activity.
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EXHIBIT B
APPROVED FEE SCHEDULE
1. Compensation. Consultant shall be compensated as follows:
1.1 Reimbursement costs for all Services for the
Term shall not exceed $82,733, or such other amount agreed to in an amendment in writing by the Parties under Section 1.A of the Agreement. i Counseling and Referral Services. Counseling, screenings and referral services provided to youth, young adults and/or parents of youth or young adults that reside in the City of Manhattan Beach will be invoiced at a rate of $100 per session. These services will be provided through allcove Beach Cities thr ough one of allcove Beach Cities’ licensed providers. These services will specifically address substance use and those with, or at risk of developing, opioid use disorder and any co- occurring substance use disorder or mental health conditions. Depending on the level of service needed, these services will serve as a warm-handoff program to direct people to recovery services through the process of Screening, Brief Intervention and Referral to Treatment (SBIRT).
ii N
aloxone Distribution and Training. The purchase of Naloxone for public distribution will be invoiced at a rate of $47.50 per carton (each carton contains 2 doses) plus service and shipping fees. Additional costs for naloxone distribution may include, but are not limited to, printing costs for education materials, additional supplies for naloxone kits, and any event fees associated to training and distribution.
iii S
ubstance Abuse Education and Prevention Programs. City shall reimburse Consultant for all costs for education and training to prevent the misuse of opioids under this Agreement. These costs may include, but are not limited to, speaker fees, venue fees, printing collateral, promotion, supplies, and activities related to coalition building. City shall reimburse Consultant for all associated media campaign activities. These costs may include, but are not limited to, the development and distribution of campaign collateral, print and online promotion, and hosting relevant events and trainings. The rate for these services mus t be agreed to by the City in writing before the Consultant provides these education and training services, which writing need not be signed by the Parties.
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iv Opioid Use Disorder Support for Unsheltered Homeless Individuals. The City shall reimburse Consultant for services provided to individuals experiencing homelessness within the City of Manhattan Beach with opioid use disorder and any co- occurring substance use disorder/mental health conditions .
These costs may include counselling services , medication- assisted treatment, and detox services. The rate for these services must be agreed to by the City in writing before the Consultant provides these education and training services, which writing need not be signed by the Parties.
1.2 Costs for programs and activities may also include the cost of Consultant staff’s time for creating materials, coordination, and administration, not to exceed 10% of total award amount, as is deemed reasonable by the Department of Health Care Services. This shall not include salaries for people not performing remediation activities as outlined under the allowable uses.
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EXHIBIT C
CALIFORNIA OPIOID SETTLEMENTS ALLOWABLE EXPENDITURES
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EXHIBIT D
BUSINESS ASSOCIATE AGREEMENT
This Business Associate Agreement (“Agreement”) is entered into by and between Beach Cities Health District, a public health government agency formed under California’s Local Health Care District law (“Business Associate”) and the City of Manhattan Beach, a California municipal corporation (“Covered Entity”), which is a covered entity under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). The parties are entering into this agreement to assist the Covered Entity in complying with HIPAA, and to set forth Business Associate’s obligations under the Health Information Technology for Economic and Clinical Health Act of 2009 (the “HITECH Act”), and 45 CFR Parts 160 and 164, Subpart C (the “Security Rule”), Subpart D (the “Data Breach Notification Rule”), and Subpart E (the “Privacy Rule”) (collectively, the “HIPAA Regulations”). Terms used in this Agreement have the meanings given them in the HIPAA Regulations. This Agreement applies to any Protected Health Information Business Associate receives from Covered Entity, or creates, receives or maintains on behalf of Covered Entity, under its agreements with Covered Entity (the “Principal Agreements”).
AGREEMENT
1. Business Associate may use and disclose Covered Entity’s Protected Health Information to provide Covered Entity with the goods and services contemplated by the Principal Agreements. Except as expressly provided below, this agreement does not authorize Business Associate make any use or disclosure of Protected Health Information that Covered Entity would not be permitted to make.
2. Business Associate will:
(a) Not use or further disclose Covered Entity’s Protected Health Information except as permitted by the Principal Agreements [or this Agreement], or as required by law; (b) Use appropriate safeguards, and comply, where applicable, with the HIPAA Security Rule with respect to electronic protected health information, to prevent use or disclosure of Covered Entity’s Protected Health Information other than as provided for by the Principal Agreements or this Agreement; (c) Report to Covered Entity within 5 days of discovery any use or disclosure of Covered Entity’s Protected Health Information not provided for by the Principal Agreements or this Agreement of which it becomes aware, including breaches of unsecured protected health information as required by the Data Breach Notification Rule (45 CFR § 164.410), and any security incident of which Business Associate becomes aware. (d) Mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a use or disclosure of protected health information by Business Associate in violation of this Agreement or the HIPAA Regulations;
(e) Ensure that any of Business Associate’s subcontractors that create, receive, maintain, or transmit protected health information on behalf of the Business Associate agree in writing to the same restrictions and conditions that apply to Business Associate with respect to such information, including compliance with the HIPAA Security Rule with respect to electronic protected health information; (f) Make any Protected Health Information in a designated record set available to Covered Entity to enable Covered Entity to meet its obligation to provide access to the information in accordance with 45 CFR § 164.524;
(g) Make any Protected Health Information in a designated record set available for amendment and incorporate any amendments to Protected Health Information as directed by Covered Entity pursuant to 45 CFR § 164.526;
(h) Make available to Covered Entity the information concerning disclosures that Business Associate makes of Covered Entity’s Protected Health Information required to enable Covered Entity to provide an accounting of disclosures in accordance with 45 CFR § 164.528; DocuSign Envelope ID: 305C1708-B721-47F0-B45F-8DB5D6F761A2
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(i) To the extent that Business Associate carries out Covered Entity’s obligations under the Privacy Rule, comply with the requirements of the Privacy Rule that apply to Covered Entity in the performance of such obligations;
(j) Make Business Associate’s internal practices, books, and records relating to Business Associate’s use and disclosure of Protected Health Information received from Covered Entity, or created or received by Business Associate on behalf of Covered Entity, available to the Secretary of the United States Department of Health and Human Services for purposes of determining Covered Entity’s compliance with the HIPAA Regulations, and to the Covered Entity for purposes of determining Business Associate’s compliance with this Agreement;
(k) Limit its requests for and uses and disclosures of Covered Entity’s Protected Health Information to the minimum necessary, and comply with any minimum necessary policies and procedures that covered entity provides to Business Associate;
(l) Upon termination of the Principal Agreements, return or destroy all Covered Entity’s Protected Health Information that Business Associate still maintains in any form and retain no copies of such information or, if return or destruction is not feasible, extend the protections of this agreement to that information and limit further use and disclosure to those purposes that make the return or destruction of the information infeasible.
3. If Covered Entity determines that Business Associate has violated a material term of this agreement, Covered Entity may immediately terminate the Principal Agreements. This Agreement shall remain in effect as long as Business Associate maintains or has access to Covered Entity’s Protected Health Information, regardless of the termination of the Principal Agreements.
4. This agreement is to be interpreted in accordance with HIPAA, the HITECH Act, and the regulations promulgated thereunder, as amended from time to time.
Covered Entity:
City of Manhattan Beach,
a California municipal corporation
By: _____________________
Name: Bruce Moe
Title: City Manager
Business Associate:
Beach Cities Health District,
a Public Health Government Agency
By: _____________________
Name: Tom Bakaly
Title: Chief Executive Officer
DocuSign Envelope ID: 305C1708-B721-47F0-B45F-8DB5D6F761A2 11/9/2023