1 MASTER AFFILIATION SERVICES AGREEMENT
This Master Affiliation Agreement (this “Agreement”) is effective as of July 1, 2023, (the “Effective Date”) and is entered into by and between the City of Vernon, with address at 4305 S. Santa Fe Avenue, Vernon, CA 90058, a California charter City and California municipal corporation (“City”), and Wellness and Equity Alliance, with address at 250 Quail Ridge Road, Scotts Valley, CA 95066, a national alliance of population & public health limited liability organization (“WEA”).
RECITALS
WHEREAS, City and WEA desire to enter into an affiliation (the “Affiliation”) in accordance with the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. PURPOSES AND GOVERNING PRINCIPLES OF THE AFFILIATION.
1.1 Purposes. The Parties acknowledge that the achievement of the goals of the Affiliation is dependent on (i) the recognition of commonality of the purposes and objectives of the Parties, and (ii) the coordination, cooperation and commitment of the Parties to further such Purposes in accordance with the terms set forth in this Agreement. The governing principles and protocols are designed to assist the Parties in coordinating such efforts and in allocating their respective resources as required to further the common Purposes and effect the Affiliation in accordance with the terms and conditions set forth herein and at Exhibit A (“Purpose”).
1.2 Retention of Ultimate Control. Notwithstanding any other language set forth herein, each Party shall retain ultimate control over its own management, assets, employees, finances, operations and affairs, including but not limited to the administration of personnel policies, procedures and standards of performance. Except as the City may authorize in writing, WEA and any of its subcontractors shall have no authority, express or implied, to act on behalf of or bind the City in any capacity as agents or otherwise.
1.3 Disclaimer of Partnership. Agency and Joint Venture. Nothing in this Agreement is intended, nor shall it be deemed, to create a partnership or agency relationship between, or joint venture of, WEA, City or any of their affiliates.
1.4 Independence. Except as expressly set forth herein, this Agreement shall not limit the rights of the Parties to engage in separate and independent activities, separate and apart from the Affiliation, and this Agreement shall not prevent a Party from engaging in such activities or require a Party to permit the other Party to participate in any such independent activities, each Party hereby waives, relinquishes and renounces any such right or claim of participation.
1.4.1 This Agreement is not intended to, and does not, create or impose any common law or statutory fiduciary duty of loyalty on any Party, or its affiliates or representatives. Furthermore, each of the Parties hereby waives any and all fiduciary duties of loyalty that, absent such waiver may be implied by or asserted, and in doing so, acknowledges and agrees that the duties and obligation of each Party to each other are limited only to those expressly set forth in this Agreement. The Parties acknowledge and agree that the terms and conditions set forth in this Agreement are agreed by the Parties to replace such other duties and liabilities of a Party that may otherwise be asserted.
2 1.4.2 Except as provided in this Agreement, whenever in this Agreement a Party, including, any of its representatives serving on any committee, is permitted or required to make a decision, the Party and its Representatives shall be entitled to consider the interests of such Party or the Party that appointed such Representative and shall have no duty or obligation to consider the interest of or factors affecting the other Party.
1.5 Related Party Transactions. The Parties acknowledge and agree that any other agreements by and between the Parties in furtherance of the Affiliation as contemplated herein shall be entered into on terms that are consistent with commercially reasonable terms and fair market value standards, as determined by arm’s length negotiation between the Parties and approved by the Executive Committee.
1.6 Compliance Standards. The governance, administration, operation and performance by the Parties in the conduct of the Affiliation shall be conducted in accordance with the requirements set forth herein, including, compliance with: (i) applicable laws, rules, regulations, (ii) accreditation and ethical standards and (iii) principles relating to justice, equity, diversity and inclusion ("EDI").
1.7 Governance and Oversight. In order to expedite the administration of the Affiliation, the authority, powers and rights of the Parties with respect to the Affiliation will be exercised by or under the authority of each Party’s authorized officials designated herein, or any such other committee and governance structure as may be mutually agreed upon from time to time in writing by the Parties.
1.8 Coordination and Cooperation. The Parties agree to coordinate and cooperate diligently with respect the administration and performance of the terms set forth in this Agreement in accordance with applicable laws, rules and regulations. Each of the Parties will participate, and cause its Representatives to participate in the governance, administration and management of the Affiliation, including, with respect to (i) participation in the administration, governance and oversight of the Affiliation, and (ii) fulfillment of the other tasks, services, roles and responsibilities required for the efficient administration of the Affiliation. The Parties will assign such duties, and make such personnel available to perform such duties, as required by the Parties to perform in accordance with the terms set forth herein.
1.9 Branding Guidelines. The Parties will coordinate and cooperate with respect to the development and use of branding guidelines relating to services, programs, and activities of the Affiliation. Except as otherwise mutually agreed upon by the Parties or as required by applicable laws, rules or regulations, the use of any cobranded items will (i) be designed to inform consumers, providers and other stakeholders of the services and resources that are being made available as part of the Affiliation, (ii) identify each of the Parties with equal prominence, and (iii) be used in accordance with the standards set forth in the co-branding guidelines, as may be authorized under the Governance Structure from time to time.
2. SERVICES.
2.1 City Services.
2.1.1 Scope. City shall provide WEA and the Affiliation with certain products, services, deliverables and any and all other components required for the performance under the statement of work set forth at Exhibit E (“Statement of Work”) and as otherwise reasonably necessary to support WEA’s performance of the WEA Services as set at Section 2.2 below (collectively, the “City Services”).
2.1.2 Legal Standards. City will provide City Services in accordance with (i) applicable laws, rules, regulations, (ii) professionally recognized standards, (iii) requirements under applicable contracts, grants and other obligations, (iv) applicable accreditation, and ethical requirements, and (v) the Purposes of the Affiliation and the other terms and conditions set forth in this Agreement.
2.1.3 Policies. In performing the City Services, City will, and will cause City’s employees, agents or representatives (collectively, “City Personnel”) to, comply in all material respects with the policies, 3 procedures, and rules of WEA and the Affiliation, as established by the Governance Structure from time to time on a basis consistent with applicable law and industry standards. City Personnel shall be solely responsible for exercising its judgment and determining the methods and manner in which the Services are provided under this Agreement, in accordance with City’s status as an independent contractor as set forth at Section 8 below.
2.1.4 Staffing. Subject to the prior written approval of WEA and, as applicable, the Governance Structure, City may provide sufficient and qualified, trained, and experienced personnel to fulfill its obligations under this Agreement. City shall implement corrective actions, including, without limitation, those relating to additional training and education to, and/or the replacement of, City Personnel, upon WEA’s reasonable request if WEA is reasonably dissatisfied with the performance or competence of such individual and notifies City regarding such dissatisfaction in writing.
2.1.5 Communication; Reporting. City shall communicate with, and submit such reports to, WEA and as required under the Governance Structure to document the performance of City Services in accordance with the terms set forth herein. Such communications shall be provided verbally and in writing in such form as determined and approved by WEA and as required under the Governance Structure.
2.1.6 Service Provider Performance Standards. The City Services shall be provided in accordance with the qualifications, performance standards, specifications and other terms and conditions set forth at Exhibit C (“Performance Standards”).
2.1.7 City Payment. All fees, costs and expenses payable by City under this Agreement to WEA shall be expressly set forth in Exhibit F (“WEA Fees, Invoicing and Payments”). WEA shall invoice City on a monthly basis with terms of net thirty (30) days. In the event that Service Provider must pursue an action to collect past-due payments from City, City shall reimburse WEA for all costs and expenses associated with such collection action, including, but not limited to, attorneys’ fees and court costs. WEA reserves the right, at any time, to modify its billing methods.
2.1.8 Taxes. City shall be responsible for the payment of all taxes imposed on City applicable to payments made by WEA to Service Provider under this Agreement. In no event shall WEA be responsible for taxes based on City's income, revenues, gross receipts, employee payroll taxes or any taxes associated with City's franchise.
2.2 WEA Services
2.2.1 Scope. WEA shall provide City and the Affiliation those certain products, services, deliverables set forth at Exhibit B (collectively, the “WEA Services”) and any and all other components relating to the performance under the Statement of Work set forth at Exhibit D.
2.2.2 Legal Standards. WEA will provide such WEA Services in accordance with (i) applicable laws, rules, regulations, (ii) professionally recognized standards, (iii) requirements under applicable contracts, grants and other obligations, (iv) applicable accreditation, and ethical requirements, and (v) the Purposes of the Affiliation and the other terms and conditions set forth in this Agreement.
2.2.3 Polices. In performing the Services, WEA will, and will cause WEA's employees, agents or representatives (collectively, "WEA Personnel") to, comply in all material respects with the policies, procedures and rules of City and the Affiliation, as established by the Governance Structure from time to time on a basis consistent with applicable law and industry standards. WEA Personnel shall be solely responsible for exercising its judgment and determining the methods and manner in which the Services are provided under this Agreement, in accordance with WEA's status as an independent contractor as set forth at Section 8 below.
2.2.4 WEA Staffing. Subject to the prior written approval of the City, and as applicable, the Governance Structure, WEA may provide sufficient and qualified, trained and experienced personnel to fulfill its obligations under this Agreement. WEA shall implement corrective actions, including, without limitation, those 4 relating to additional training and education to, and/or the replacement of, WEA, upon City’s reasonable request if Strategic Partner is reasonably dissatisfied with the performance or competence of such individual and notifies WEA regarding such dissatisfaction in writing.
2.2.5 WEA Communication. Reporting. WEA shall communicate with, and submit such reports to City and as required under the Governance Structure to document the performance of WEA Services in accordance with the terms set forth herein. Such communications shall be provided verbally and in writing in such form as determined and approved by WEA and as required under the Governance Structure.
2.2.6 WEA Performance Standards. The WEA Services shall be provided in accordance with the qualifications, performance standards, specifications, and other terms and conditions set forth at Exhibit C (“Performance Standards”) and Exhibit E (“Strategic WEA Performance Standards”) which comprises WEA’s Staffing Model for Clinical Services and Outreach.
2.2.7 WEA Fees, Invoicing and Payment. All fees, costs and expenses payable under this Agreement to WEA shall be expressly set forth in each Exhibit G, as shall be amended and/or expanded from time to time to include new programs and services as mutually agreed upon in writing by the Parties.
WEA shall invoice City according to the terms set forth in the Statement of Work and City shall pay all invoiced amounts within thirty (30) calendar days of City’s receipt of the invoice. In the event that WEA must pursue an action to collect past-due payments from City, City shall reimburse WEA for all costs and expenses associated with such collection action, including, but not limited to, attorneys’ fees and court costs. WEA reserves the right, at any time, to modify its billing methods.
2.2.8 Taxes. WEA shall be responsible for the payment of all taxes imposed on WEA applicable to payments made by City to WEA under this Agreement. In no event shall City be responsible for taxes based on WEA's income, revenues, gross receipts, employee payroll taxes or any taxes associated with WEA as an organization.
3. REPRESENTATION AND WARRANTIES
Each Party represents to the other Party as of the Effective Date and at all times during the Term of this Agreement as follows:
3.1 Organization and Good Standing. Each Party is duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization and is qualified to do business in every jurisdiction in which the ownership of its properties or the conduct of its business requires it to be so qualified. Each Party has the organizational power and authority to own, operate or hold under lease its properties and assets and to carry on its business and operations as presently conducted.
3.2 Authority. Each Party has the full organizational power and authority to enter into, and to perform its obligations under this Agreement and any other agreement to be entered into by such Party in connection with the transactions contemplated hereby. The execution, delivery and performance of this Agreement by such Party and any other agreement to be entered into by such Party in connection with the transactions contemplated hereby have been duly and properly authorized by proper organizational action in accordance with Applicable Law and its organizational documents. This Agreement constitutes (and any other agreement to be entered into by such Party in connection with the transactions contemplated hereby will constitute) the lawful, valid and legally binding obligation of such Party, enforceable against it in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency or other Laws of general application affecting the enforcement of creditors’ rights and by general equitable principles.
5 3.3 No Conflict. The execution, delivery, and performance of this Agreement and any other agreement to be entered into by such Party in connection with the transactions contemplated hereby will not violate or conflict with any provision of, constitute a default or breach of such Party’s organizational documents, Applicable Law, or any contract, lease, agreement, indenture, mortgage, pledge, sublease, option, assignment, permit, license, approval or other commitment or any writ, order, injunction, judgment, decree, ruling, assessment or arbitration award of any governmental authority to which such Party is a party or is subject to or by which such Party is bound. No approval, authorization, registration, notice, consent, order or other action of or filing with any governmental authority or third party is required for the execution and delivery by such Party of this Agreement or any other agreement to be entered into by such Party in connection with the transactions contemplated hereby or the consummation by such Party of the transactions contemplated or required hereby or thereby.
3.4 Compliance with Laws. Except as would not, individually or in the aggregate, reasonably be expected to have a material adverse effect, such Party has complied and is currently in compliance with, and have made and are making all filings required pursuant to, all applicable laws, rules and regulations, and are currently in compliance with all orders and any governmental authority requirements in connection with the conduct of the business and operations of each Party. Such Party is not a party to, and does not have reporting obligations pursuant to, any settlement agreement entered into with any governmental authority.
3.5 Non-Exclusion. Neither such Party nor any of its affiliates has been or, to its knowledge, is subject to pending action for exclusion or suspension from participation in any federal or state government programs or debarred from contracting with the federal or any state government; and, to such Party’s Knowledge, there are no pending or threatened governmental investigations that may lead to such exclusion or debarment.
3.6 Legal Proceedings. Except as would not, individually or in the aggregate, reasonably be expected to have a material adverse effect, there is no litigation, proceeding, claim or governmental investigation pending or, to the knowledge of such Party, threatened against such Party.
4. TERM AND TERMINATION
4.1 Term. The initial term of this Agreement shall commence on the Effective Date and continue thereafter for a period of one (1) year, unless sooner terminated as set forth herein (the “Initial Term”). Thereafter, the parties may, upon mutual agreement, renew for an additional period of five (5) years (the “Renewal Term,” and together with the Initial Term, the “Term” of the Agreement). A total of five (5) contractual years is the potential duration of renewal time currently approved, upon mutual agreement. Either party may provide prior written notice of its intention not to renew this Agreement at least 90 days prior to the expiration of the Initial Term. The termination of any Statement of Work shall not serve to automatically terminate this Agreement; provided, however, that termination of this Agreement shall serve to automatically terminate any Statement(s) of Work then in effect hereunder.
4.2 Termination for Cause. Either party may terminate this Agreement for cause by written notice to the other party upon the material breach by the other party that remains uncured thirty (30) days after the nonterminating party provides written notice thereof; and such event continues for thirty (30) days after the other party provides written notice thereof.
4.3 Termination without Cause. Either party may terminate this Agreement at any time, without cause and without penalty, in whole or in part, by providing not less than thirty (30) days’ prior written notice to the other party. In the event of WEA’s termination pursuant to this Section 3.3, Service Provider shall be compensated for any Services provided prior to the date of such termination.
4.4 Effect of Termination; Survival. If this Agreement expires or is terminated by either party, Service Provider will return to WEA any Confidential Information (as defined in Section 5.1). The expiration or termination of this Agreement for any reason will not release either party from obligations set forth in this Agreement that will survive or continue beyond any such expiration or termination, relating to Section 4 (Invoicing 6 and Payment), Section 5 (Confidentiality and Security), Section 6 (Insurance) (to the extent provided therein), Section 7 (Indemnification), and Section 8 (Miscellaneous).
5. CONFIDENTIALITY AND SECURITY
5.1 General Non-Disclosure Obligation. In connection with the performance of Services, the Parties will have access to Confidential Information (as that term is defined below) of the other Party. Each Party agrees to keep any Confidential Information disclosed by, or on behalf of, the other Party in strict confidence, and further agrees not to disclose such Confidential Information to any third parties, except as may be specifically permitted by this Agreement. As used in this Agreement, the term “Confidential Information” shall mean, with respect to a party hereto, all information or material which (i) gives that party some competitive business advantage or the opportunity for obtaining such advantage or the disclosure of which could be detrimental to the interests of that party; or (ii) is (a) marked “Confidential,” “Restricted,” or “Proprietary” or with some other, similar, marking; (b) known by the parties to be considered confidential or proprietary information that is unique to the Party; or (c) from all the relevant circumstances, should reasonably be assumed to be confidential or proprietary. Confidential Information includes but is not necessarily limited to financial data and business strategies and other proprietary information.
Notwithstanding the foregoing, no information constitutes Confidential Information if such information (a) is or becomes publicly known or in the public domain through no breach of an ongoing confidentiality obligation or other unlawful act; (b) was in the recipient’s possession prior to the date of receipt from the disclosing party, lawfully obtained from a source other than the disclosing party (or its subsidiaries, affiliates or joint ventures) and not subject to any obligation of confidentiality, and the recipient is able to adequately substantiate such prior knowledge; or (c) is disclosed as required by any law or court order in accordance with the provisions of Section 5.2 hereof.
5.2 Permitted Third Party Disclosures. A Party may disclose the Confidential Information of the other Party only to the extent that such disclosure is required by law, regulation or other lawful order or process, and prior to any such disclosure, the Party required to disclose such Confidential Information notifies the other Company of the disclosure requirement to provide the City with an opportunity to take reasonable action as may be deemed advisable by WEA oppose or limit any such disclosure.
5.3 Ownership and Limited Use.
5.3.1 Ownership. The Affiliation shall not provide rights of a Party to any rights in Confidential Information or other Intellectual property rights of the other Party. Any materials, productions, information, intellectual property or other items or rights resulting from a Party’s performance under this Agreement shall be owned by, and for the express benefit of such Party.
5.3.2 Limited Use. Each Party may access and use Service Provider’s Confidential Information only as reasonably required to the Affiliation and for no other use.
5.4 Equitable Relief. Each Party acknowledges that any unauthorized disclosure or use of Confidential Information to which it obtains access by virtue of this Agreement, or any other breach of this Section 5 (Confidentiality and Security), would cause the other party immediate and irreparable harm for which monetary damages would not be adequate compensation. Accordingly, each Party acknowledges and agrees that in the event of such a breach, or threatened breach, of any provision of this Section 5 (Confidentiality and Security) shall be entitled to equitable relief, including a restraining order, preliminary and permanent injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which such Party may be entitled at law or in equity, all without the requirement of posting bond or proving the inadequacy of monetary damages. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity.
5.5 Duration of Obligations; Return or Destruction. The restrictions on use and disclosure of Confidential Information set forth in this Section 5 (Confidentiality and Security) shall remain in full force and 7 effect during the Term of this Agreement and for five (5) years following any expiration or termination hereof; provided, however, that notwithstanding anything else to the contrary, all information that constitutes a “trade secret” under applicable law shall remain subject to these restrictions in perpetuity and shall not expire. Except as otherwise authorized herein, upon the termination or expiration of this Agreement, or upon request by a Party, the other Party shall deliver over to the Party (or, if specifically requested or authorized by such Party, destroy) (a) all Confidential Information of the Parties embodied in tangible form, and (b) all copies of documents, data, software, programs, listings and other things, including without limitation all recordings on magnetic, optical or other media, that comprise, contain or embody any Confidential Information, and shall not take or retain any copies thereof.
5.6 Access to PHI. As of the Effective Date, the Services anticipated to be provided under this Agreement may require City to (a) access or receive “Protected Health Information” or “PHI” (as such term is defined in the Health Insurance Portability and Accountability Act of 1996 and regulations promulgated thereunder (“HIPAA”). If the Services in any Statement(s) of Work may require City to access, receive or use PHI, the parties agree to enter into a commercially reasonable a Business Associate Agreement (“BAA”) in substantially the form attached hereto as Exhibit G. If the need for such access, receipt or use is identified with respect to an existing Statement of Work, and the parties are unable to promptly agree upon the terms of a BAA, either party shall have the right to terminate the applicable Statement of Work pursuant to Section 4.3 (Termination without Cause) above.
6. INSURANCE. During this Agreement, each Party shall carry and maintain, at its sole cost and expense, insurance or equivalent self-insurance as is reasonably required by the Party and necessary and customary to the operation of the Party and its businesses, in commercially reasonable amounts and in accordance with all applicable state and federal laws and regulations. WEA shall provide City policies of insurance types in the amount set forth below for the duration of the Agreement and provide City certificates evidencing such coverage, and must be in a form approved by the City. In addition, the insurance policies required shall be issued by insurance companies licensed to do business in the state with an A.M. Best rating of at least A-VIII.
1. General Liability coverage with limits of not less than $2,000,000 per occurrence and $4,000,000 aggregate. Premises/Operations and Personal injury coverage is required. The City of Vernon, its directors, commissioners, officers, employees, agents, and volunteers must be endorsed on the policy as additional insured under WEA’s insurance policy; it shall be primary and non-contributory without seeking contribution from the City’s insurance or self-insurance.
2. Automobile Liability coverage with limits of not less than $1,000,000 per occurrence and $2,000,000 annual aggregate. WEA agrees to subrogate automobile liability resulting from performance under this Agreement. The City of Vernon, its directors, commissioners, officers, employees, agents, and volunteers must be endorsed on the policy as additional insured under WEA’s insurance policy; it shall be primary and non-contributory without seeking contribution from the City’s insurance or self-insurance.
3. Professional Errors and Omissions coverage with limits of not less than $5,000,000 where such risk is applicable. WEA shall maintain such coverage for at least five years after the termination of this Agreement.
4. Workers’ Compensation coverage with limits of not less than $1,000,000 per occurrence. The policy shall be endorsed to waive all rights of subrogation against the City, its directors, commissioners, officers, employees, and volunteers for losses arising from the performance of this Agreement.
5. Excess Liability coverage – Any umbrella or excess insurance coverage shall contain or be endorsed to include a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of the City before the City’s insurance or self-insurance shall be called upon. If the underlying aggregate is exhausted, the excess coverage will drop down as primary insurance.
8 7. INDEMNIFICATION; LIMITATION OF LIABILITY.
7.1 Indemnification. Each Party (“Indemnifying Party”) shall, at its own expense, defend, indemnify and hold harmless the other party, the and its affiliates, and its and their respective owners, directors, managers, officers, employees, agents, representatives, successors-in-interest and assignees (collectively, the “Indemnified Parties”) from and against any and all third party claims, demands, suits, actions or proceedings, arising from or relating to (a) the Indemnifying Party’s breach of this Agreement, or (b) negligence, gross negligence, fraud, or intentional misconduct (collectively, “Claims”) or (c) a party’s violation of applicable laws, rules or regulations.
Subject to the limitations set forth herein, Indemnifying Party shall pay all liabilities, obligations, losses, fees, penalties, fines and any other expenses arising from the Claim as such amounts are finally determined, of the Indemnified Parties, including without limitation, reasonable attorneys’ fees or costs and attorneys’ fees or costs incurred in enforcing any obligations under this Section. In connection with any Claim for which an Indemnified Party is seeking indemnification, the Indemnified Party: (i) shall give Indemnifying Party prompt written notice of the Claim; provided, however, that failure to provide such notice shall not relieve the Indemnifying Party from its liabilities or obligations hereunder, except solely to the extent of any material prejudice as a direct result of such failure; (ii) shall cooperate with Indemnifying Party, at Indemnifying Party’s sole cost and expense, in connection with the defense and settlement of the Claim; and (iii) shall permit Indemnifying Party to control the defense and settlement of the Claim; provided, however, that Indemnifying Party may not settle the Claim without the Indemnified Party’s prior written consent (which shall not be unreasonably withheld or delayed) in the event such settlement materially adversely impacts an Indemnified Party’s rights or obligations.
7.2 Limitation on Indirect Damages. EXCEPT IN REGARD TO DAMAGES ARISING OUT OF
FRAUD, OR GROSSLY NEGLIGENT ACTS, NEITHER OF THE PARTIES WILL BE LIABLE TO THE
OTHER FOR INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, ECONOMIC, SPECIAL, OR
EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF BUSINESS
REVENUE OR EARNINGS, LOST DATA, DAMAGES CAUSED BY DELAYS, OR A FAILURE TO REALIZE
EXPECTED SAVINGS) DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN CONNECTION WITH THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, WHETHER OR NOT SUCH DAMAGES
COULD REASONABLY BE FORESEEN OR THEIR LIKELIHOOD HAS BEEN DISCLOSED TO EITHER PARTY.
7.3 Limitation on Damages. NOTWITHSTANDING ANY OTHER LANGUAGE SET FORTH HEREIN, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF Service Provider, ITS OWNERS,
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND AFFILIATES OR OTHER PERSONS SUBJECT TO
INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAID BY COMPANY TO Service Provider IN THE TWELVE (12) MONTHS THAT PRECEDED THE
EVENT GIVING RISE TO SUCH LIABILITY, EXCLUDING ANY APPLICABLE INSURANCE COVERAGE PAYMENTS.
8. MISCELLANEOUS
8.1 Government Verification of Costs. Until the expiration of six (6) years after the furnishing of any Service pursuant to this Agreement, each Party will make available, upon written request of the Secretary of Health and Human Services or the Comptroller General of the United States or any of their duly authorized representatives, copies of this Agreement and any books, documents, records, and other data of the Party that are necessary to certify the nature and extent of costs incurred by the Party for such services. If a Party carries out any of its duties under this Agreement through a subcontract with a related organization involving a value or cost of Ten Thousand Dollars ($10,000) or more over a twelve (12) month period, such Party will cause such subcontract to contain a clause to the effect that, until the expiration of six (6) years after the furnishing of any service pursuant to 9 said contract, the related organization will make available, upon written request of the Secretary of Health and Human Services or the Comptroller General of the United States or any of their duly authorized representatives, copies of records of the related organization that are necessary to certify the nature and extent of costs incurred for such services. This provision shall also apply to any contract between a subcontractor and an organization related to the subcontractor by control or common ownership.
8.2 Independent Contractor. Each Party acknowledges that it is at all times acting as an independent contractor under this Agreement and not as an agent, employee, or partner of the other Party. No Party has authority to enter into any contract or incur any obligation on behalf or in the name of the other Party. Each Party is solely responsible for, and shall indemnify the other Party with respect to, all matters relating to compensation of, and benefits for, its employees, including but not limited to compliance with laws governing workers’ compensation, Social Security, withholding and payment of any and all federal, state and local personal income taxes, disability insurance, unemployment, and any other taxes for such persons, including any related employer assessment or contributions required by law.
8.3 Third Party Beneficiaries. No third party shall be deemed to be a third-party beneficiary of this Agreement.
8.4 Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Neither party shall assign or delegate this Agreement or any part thereof, whether voluntarily or by operation of law, without the prior written consent of WEA.
8.5 Notices. Notices, requests, consents, approvals, agreements, authorizations, acknowledgments, waivers and other communications required or permitted under this Agreement will be in writing and deemed duly given if receipt is acknowledged by the recipient, or if delivered by courier or certified or registered mail or email (in the case of email, with acknowledgment of receipt by the addressee (other than an automatically-generated receipt) to the address specified below. Either party may change its address for notification purposes by giving the other Party prior written notice of the new address and the date upon which it will become effective.
If to City: Address: 4305 Santa Fe Ave, Vernon, CA 90058 Email: Freddie Agyin; [email protected]
If to Service Provider: Address: 250 Quail Ridge Road, Scotts Valley, CA 95066 Email: Nancy Anwar Evans; [email protected]
8.6 Applicable Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of California (without regard to principles of conflicts of laws).
8.7 Entire Agreement; Modifications. This Agreement, including without limitation any Exhibit attached hereto, contains and constitutes the entire agreement between the parties with respect to the subject matter of this Agreement, and supersedes all other prior and contemporary agreements, understandings, and commitments between the parties with respect to the subject matter of this Agreement. No alteration, amendment, or modification of the terms of this Agreement shall be valid or effective unless in writing and manually signed by City and WEA.
8.8 Interpretation of Agreement; Severability. This Agreement is the result of arm’s length negotiations between the parties and shall be construed to have been drafted by all parties such that any ambiguities in this Agreement shall not be construed against either party by virtue of that party being considered the drafter of this Agreement. In the event of any conflict or inconsistency in the interpretation of this Agreement, such conflict or inconsistency shall be resolved by giving precedence first to the main body of this Agreement, and second to the Exhibits. All personal pronouns used herein, whether used in the feminine, masculine, or neuter gender, shall include all other genders, and the singular shall include the plural and vice versa. The section headings contained 10 herein are for convenience in reference and are not intended to define or limit the scope of any provision of this Agreement. If any provision of this Agreement is found to be invalid or unenforceable by any court, such provision shall be ineffective only to the extent that it is in contravention of applicable Laws without invalidating the remaining provisions hereof.
8.9 Waiver. All waivers under this Agreement shall be in writing in order to be effective. No waiver by a party of any breach of this Agreement or waiver of any warranty, representation, or other provision hereunder shall be deemed to be a waiver of any other breach, warranty, representation, or provision (whether preceding or succeeding, and whether or not of the same or similar nature), and no acceptance of performance by a party after any breach by the other party shall be deemed to be a waiver of any breach of this Agreement or of any representation, warranty, or other provision, whether or not the party accepting performance knows of such breach at the time of acceptance. The failure or delay by a party to exercise any right it may have by reason of the default of the other party shall not operate as a waiver of the default or modification of this Agreement and shall not prevent such party from exercising any right it may have under this Agreement.
8.10 Counterparts. This Agreement may be executed in one or more counterparts, including by facsimile transmission, by electronic mail in portable document format (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, each of which shall be deemed an original, and will become effective and binding upon the parties as of the Effective Date at such time as all the signatories hereto have signed a counterpart of this Agreement. [Signature Page Attached]
11 IN WITNESS WHEREOF, the parties have executed this Agreement to become effective as of the Effective Date.
WEA CITY
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Carlos R. Fandino, Jr. ___________________
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City Administrator___________________________
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Date
______________________________________
Date
ATTEST
_________________________
Lisa Pope, City Clerk
APPROVED AS TO FORM:
__________________________
Zaynah N. Moussa,
City Attorney
12 EXHIBIT A: PURPOSE OF AFFILIATION
Wellness & Equity Alliance (WEA) is a novel national public health organization and multidisciplinary team of physicians, health professionals, and organizational experts with expertise in infectious disease, public health, emergency medicine, primary care, cardiology, pediatrics, psychiatry, community health work (CHW), nursing and advanced practice pharmacy. WEA’s core mission is to address healthcare disparities largely driven by the social determinants of health (SDoH). Through strategic affiliations with public health agencies, and other local and state government agencies, WEA can provide comprehensive public health extension services tailored to minimize access barriers for historically vulnerable communities.
As of August 2023, WEA will represent the City of Vernon and the public health officer through public health, population health management, health education, community outreach, marketing/communications, and medical services to the City of Vernon residence and business affiliates. The statement of work outlined reflects the first phase of our multi-phased approach for clinical and public health services. 13 EXHIBIT B: WEA SERVICES
In WEA’s first phase1 of service during FY 2023-2024, our core services offerings in the affiliation between the City of Vernon and WEA will consist of the following services:
● A public health department (led by a public health officer) with nursing, epidemiologists and other controllers who can track issues within the city and throughout the state to ensure the city is prepared at all times (especially during public health emergencies).
● Clinical services (including primary care, mental health, substance use disorder management, and urgent care) conveniently to businesses and points of residents, which will improve the health and productivity of workforces and resident communities.
WEA’s Core Public Health Services will include the following:
● Population-based communicable disease surveillance and management ● Surveillance and management of illicit substance use
● Surveillance and management of environmental health issues2 ● Liaison between California Department of Public Health and City from a public health perspective ● Liaison between Los Angeles County Department of Public Health and City from a public health perspective
WEA’s Community Health Services will include the below during our first phase implementation. ● Screening and management of chronic health concerns
● Screenings for communicable diseases
○ Covid-19 testing
○ influenza testing
○ Streptococcal A pharyngitis
○ Sexually Transmitted Infections (STIs) (e.g., Chlamydia, Gonorrhea, Syphilis) ● General lab services
● Mild injury care
● Acute illness1
● Immunizations
○ Influenza
○ COVID-19
○ Tdap
○ Pneumonia
● Industry specific vaccines2
● Mental health screening and management
● Substance use disorder (SUD) screening and management ● Community health promotion and patient education
1 Note that the services of the first phase may increase or decrease depending on ongoing needs and City approval as required.
2 in collaboration with the City’s environmental control division 14 In addition, WEA will provide the following non-clinical services:
● marketing/communication
● community outreach
● health-care services and public health grant research/submission and management In support of WEA providing the above services to the City of Vernon residence and those who migrate through the city on a daily basis, the City of Vernon has committed to providing clinic space, mobile health unit(s), pop up clinic non-medical equipment, and marketing/communications materials for co-branding materials and outreach. 1 Limited scope to begin with
2 pending needs assessment discovery
15 EXHIBIT C: PERFORMANCE STANDARDS
Performance standards will be upheld by City of Vernon and WEA to demonstrate our shared strategic goals with transparency to officials, executives and board members while providing an ongoing oversight and mechanisms to monitor progress toward these goals through simple and intuitive performance measures.
City of Vernon has identified Freddie Agyin, Director of Health & Environmental Control Department as WEA’s direct leadership point of contact in the Affiliation. Dr. Tyler Evans, WEA Co-Founder and CEO who also serves as City of Vernon’s Public Health Officer will serve as the direct leadership point of contact for WEA. City of Vernon and WEA will adhere to the following performance management standards:
● Strategic level refers to goals on the organizational and city level. Strategic standards will align with the Affiliation’s vision, objectives, and values.
● Operational level of performance management emphasizes how services and activities work to achieve the Affiliation’s goals. Employers from each organization may create performance standards which apply to the company's anticipated delivery of services.
● Individual level focuses on the individual employee to ensure that all employees are performing their tasks well. Individual standards evaluate employees' work and seek to improve the quality of their performances.
WEA will submit monthly performance reports to the City of Vernon, along with monthly invoicing. Invoicing and payment turnaround times will follow the above contractual agreement. Joint operations meetings will occur between the City of Vernon and WEA. Should additional supporting documentation or requests occur as an action item of the joint operations meetings, each party will be responsible to identify the length of time needed to remediate need, identification of action item owner, and number of staff to support the request.
WEA will conduct internal oversight and audits of services and processes implemented. Staff will be evaluated on process adherence, along with response time, and patient/community satisfaction. City of Vernon will also monitor the Affiliation, provide staff when or if needed for WEA events/joint opportunities, and coordinate in response with WEA should any community appeal or grievances be received. 16 EXHIBIT D: STATEMENT OF WORK
This statement of work is entered into between WEA and City of Vernon to initiate front line services as of FY 2023-2024. In the first phase, the City of Vernon will fund WEA’s service delivery start-up costs for community health services and coverage of core public health services for the FY 2023-2024.
The City of Vernon has the right to protect its businesses and residents and own the process in which it chooses to do so. Creating a robust public and community health infrastructure ensures that a municipality is strong and resilient enough to withstand any stress on the system. In addition, the city, in collaboration with WEA, will be providing clinical services to residents, businesses, and people who may be at risk or experiencing homelessness. As the City’s daytime population includes over 50,000 workers employed by various business entities on a daily basis, we acknowledge that many of these people are not able to access health care services (e.g., primary care, preventive care, and essential behavioral/mental health services) during standard office hours, as they are busy working.
Consequently, many people are without optimal health care or care at all. This leads to a sicker workforce more prone to stress on the system. A public health emergency (like COVID-19) tears at those points of stress, and the entire population remains at risk. This causes individual pain and suffering as well as a significant impact on the productivity of the workforce. By bringing health-care to businesses, schools and residences, we will ensure the convenience of community and public health services are always accessible, thereby leading to a safer, educated, stronger, and more empowered community. It is WEA’s mission to grow public and community health in a new, approachable and easily accessible way that addresses health equity and aligns with city’s goals such as Vernon.
Through this growth phase, WEA strongly believes that the City of Vernon can become an important showcase for other cities across the country on how to support populations and their health in the right way. By building out the health department to include a robust team of professionals dedicated to serving the various communities in Vernon, we can build a healthier population and gain greater trust and support from them. The WEA model for core public health services aims to create the areas of focus a health department needs. Playing a crucial role in preventing and controlling the spread of diseases and injuries, promoting healthy behaviors and lifestyles, and providing access to healthcare services are all crucial elements WEA recognizes as building a robust health department. ● Community Health Services with Integrated Behavioral Health Services at the Hub “Health Bungalows” ○ Timeline: FY 2024
○ Operational Days: 4 operating days per calendar week. ○ Purpose: Clinical services to be run out of these offices and will serve as the home base for operations throughout the city.
○ Daily max community member count: Serve up to twenty-four (24) patients per day. ○ Requirements (to be provided by the City):
■ WEA staff will require access to one bungalow at this time for clinical services ■ WEA staff will require the capacity to use a secondary bungalow for storage and cold chain assets, when appropriate.
○ Deliverable: Service Provider will offer clinical services from the hub and plans to use the mobile units on alternative days for clinical service offerings out in the community. ● Community Health Services and Outreach at Spokes- Mobile Units ○ Timeline: FY 2024
○ Operational Days: alternating days with hub model above. ○ Purpose: Clinical services to be run out of the mobile units to serve and support each person where they are at throughout the city.
○ Requirement: Two (2) city-provided mobile units (sprinter vans) for a combination of clinical services and outreach.
17 ■ Van #1: Staffed for clinical services. This includes community health services as described above, and integrated mental and behavioral health services. ● Community Health Services and Integrated Behavioral Health Services Unit:
(Van #1). Optional to run up to 2 days per week.
○ Daily max community member count: Serve up to twenty (20) patients per day.
○ Deliverable: Integrated community health and behavioral health services included.
■ Van #2: Staffed for community health outreach and/or clinical services. Community Health Outreach Unit: (Van #2). Optional to run up to five (5) days per week, four (4) hours per day.
● Daily max community member count: Serve up to ten (10) patients per day. ● Deliverable: Used to conduct outreach to local businesses and communities promoting the services offered by WEA and The City of Vernon, health promotion and education, and relationship building.
18 EXHIBIT E: WEA STRATEGIC STAFFING MODELS
WEA performance standards relate to the staffing models which will be utilized through the City of Vernon service delivery model. WEA’s Core Public Health Services include the following roles, responsibilities, and fulltime employee (FTE) count:
Roles Responsibilities FTE
Health Officer Role already under contract and accounted for financially. x Public Health Nurse (RN)
Responsible for helping to manage and oversee much of the public health program.
Interfacing with the City of Vernon, public health officer, and clinical teams.
0.5 Epidemiology
Studies the patterns and causes of disease and injuries within the population and works to prevent the spread of disease through surveillance, investigation, and the development of strategy to control and manage outbreaks.
0.1 Communicable Disease/STI Controller
Responsible for preventing, managing, and controlling the spread of communicable disease and sexually transmitted infections within the community. Implementing prevention programs, identifying and tracking cases, conducting outreach to at-risk populations and providing treatment and education.
0.4 HIV + TB Controller Role and cost covered by Health Officer salary X Public Health Administrative Assistant
Clerical work including- document handling, patient
communications and appointment setting, state/county
required reporting and data organization.
0.5 WEA’s staffing model for Clinical Services and Outreach with the Community Health and Behavioral Health Services Hub or Spoke includes the following roles, responsibilities, and full-time employee (FTE) counts.
Roles Responsibilities FTE
Operations Site Lead Oversees the daily operations and manages site logistics. 1.0 Advanced Practice Provider (PA/NP) Healthcare provider conducting patient care visits for primary care related issues. 1.0
Clinical Nurse Manager
Lead RN who is overseeing clinical staff, setting work schedules, managing patient relations and staff. 1.0
Medical Assistant Administrative and clinical task providing support to provider and other staff. 0.5 19 Medical Director Overseeing physician in charge of all medical approvals and reviews. 0.2 Clinical Educator Lead educator responsible for initiating and maintaining clinical staff training and compliance with education and best practices. 0.1
Program Manager Oversees project as a whole and is the main liaison between the city and WEA. 0.5
Health | Front Office Admin Checking in and out of patients, managing appointments and schedules, responsible for filling correct data and documentation. 0.5 Insurance Enrollment Coordinator Responsible for helping individuals enroll in various types of insurance programs and plans. 0.5
Referral Coordinator Responsible for managing referrals for medical services outside of WEA scope. 0.5
Psychiatry Medical Director Overseeing psychiatric physician in charge of all medical approvals and reviews in relation to behavioral and mental health. 0.1 Behavioral Health Therapist
(LCSW/LMFT)
Healthcare provider conducting patient care visits for behavioral health and mental health services. 0.5
LCSW Oversight Oversee the behavioral health therapist (LCSW/LMFT). 0.1 Community Health Worker (Outreach) Conducts outreach to community and education on services available as well as pertinent health information dissemination. 1.5
Outreach Lead Oversees CHW outreach efforts and coordinates events and planning with the team. 0.4
Public Information Officer (PIO)
Responsible for extension of WEA’s marketing/communications team to adapt public health strategies tailored to Vernon’s population (especially businesses) in order to optimize uptake and engagement of services and communicate public health risk during times of need.
0.1 Marketing Director Develops an overall strategic plan to promote services and executes on approved promotional campaigns. 0.2
Community Pharmacist Ensuring that WEA’s formulary is stocked and providing quality compliance and consultations for medical providers. 0.1
Sexual Health Clinical Operations Consults on sexual health clinical operations and helps implement clinical services. 0.2
Lab Consultant Consults on all lab testing requirements and compliance pieces as well as advises on testing protocols, processes, and procedures. 0.1 20 WEA will begin with the core staff required and reassess FTE needs based on services rendered and community interest. Any requested increase in WEA staffing must be approved in writing by the City.
EXHIBIT F: FEES, INVOICING AND PAYMENTS
As compensation for Services and Deliverables provided hereunder, the City of Vernon will compensate WEA in the amount of $567,000 for FY 2024 for the positions listed above in this engagement. The City of Vernon shall pay WEA for August 1, 2023 through July 31, 2024, per the following schedule, thirty three percent (33% or $187,110) of total amount upon contract execution, followed by remaining monthly payments from September 1, 2023 through July 1, 2024 in the amount of $34,535.46.
WEA will strive to complete this engagement at the fees estimated above. However, if WEA encounters unforeseen complexities that warrant possible additional fees, WEA will communicate with City and identify any requested additional fees prior to invoicing City for fees beyond the above estimates.
WEA’s grand total compensation for the term of this Agreement shall not exceed $567,000 without the prior authorization of the City, as appropriate, and written amendment of this Agreement.
This amount is inclusive of all costs, including travel. 21 EXHIBIT G: HIPAA BUSINESS ASSOCIATE AGREEMENT
THIS HIPAA BUSINESS ASSOCIATE AGREEMENT (this “Agreement”) is effective July 1, 2023 (the “Effective Date”), by and between the City of Vernon, a California charter City and California municipal corporation (“Business Associate”) and Wellness and Equity Alliance, a national alliance of population & public health limited liability organization on behalf of itself and its affiliates, if any (individually and collectively, the “Covered Entity”).
A. Business Associate performs functions or activities on behalf of Covered Entity involving the use and/or disclosure of protected health information, including electronic protected health information (“PHI”) that Business Associate accesses, creates, receives, maintains or transmits on behalf of Covered Entity.
B. Covered Entity and Business Associate acknowledge their respective obligations to protect the privacy and provide for the security of PHI in compliance with the Health Insurance Portability and Accountability Act of 1996, and regulations promulgated thereunder by the U.S. Department of Health and Human Services (“HHS”), including the Standards for Privacy of Individually Identifiable Health Information at 45 C.F.R. Part 160 and Part 164, Subparts A and E (the “Privacy Rule”), the Security Standards for the Protection of Electronic Protected Health Information at 45 C.F.R. Part 160 and Part 164, Subparts A and C (the “Security Rule”), and the Notification of Breach of Unsecured Protected Health Information requirements at 45 C.F.R. Part 164, Subpart D (“Breach Notification Rule”), and as amended from time to time, and the privacy provisions set forth in the Health Information Technology for Economic and Clinical Health Act (“HITECH”) (collectively “HIPAA”).
For purposes of compliance with HIPAA, the parties agree to the terms and conditions set forth in this Agreement.
1. Definitions. Terms used, but not otherwise defined, in this Agreement shall have the same meaning as those terms are defined under HIPAA, as applicable.
2. Compliance with Applicable Law. To the extent applicable, each party shall comply with its obligations under this Agreement and with all related obligations under HIPAA and other applicable state and federal laws and regulations, as they exist at the time this Agreement is executed and as they are amended or superseded, for so long as this Agreement is in place.
3. Uses and Disclosures of PHI. Business Associates may use and disclose PHI as necessary and appropriate to carry out the purposes specified in this Agreement, as reasonably necessary to provide the services contemplated by a services agreement between the parties (if applicable, “Master Agreement”) and as required by law, and shall not otherwise use or disclose PHI. Business Associate shall not, and shall ensure that its directors, officers, employees, subcontractors and agents do not: (i) use or disclose PHI in any manner that is not permitted or required by the Master Agreement or this Agreement, or required by law; and (ii) use or disclose such information in a manner that would violate HIPAA if done by Covered Entity. All requests, uses and disclosures of and requests by Business Associate for PHI be limited to the minimum amount of PHI necessary to accomplish the purpose of the request, use or disclosure as specified in 45 C.F.R. § 164.514(d), as applicable.
22 4. Required Safeguards to Protect PHI. Business Associate agrees that it will implement appropriate safeguards to prevent the use or disclosure of PHI other than pursuant to the terms and conditions of the Master Agreement or this Agreement. To the extent that Business Associate accesses, creates, receives, maintains or transmits Electronic PHI (“ePHI”) in performance of its duties on behalf of Covered Entity, Business Associate shall implement administrative, physical and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of the ePHI, as required by HIPAA.
Business associates shall encrypt all EPHI consistent with industry standards for encryption, which shall include, at a minimum, compliance with National Institute for Standards and Technology (“NIST”) Special Publication 800-175B. Further, Business Associate shall not, directly or indirectly, delegate or subcontract any of its duties or obligations under this Agreement or disclose or transmit PHI to any person or entity outside the United States of America (including but not limited to so-called “offshoring”). In addition, Business Associate shall not, directly or indirectly, store or cause to be stored, EPHI or Unsecured PHI with any third party (including but not limited to so-called “cloud computing”).
5. Reporting to Covered Entity. Business Associate shall report to Covered Entity the details regarding the circumstances resulting in any use or disclosure of PHI not permitted or required by the Master Agreement, this Agreement or required by any state or federal law, including Breaches of unsecured PHI in accordance with the breach notification rule at 45 C.F.R. § 164.410, and any Security Incident within three (3) days of becoming aware of such use, disclosure or Security Incident. If not all of the information is available within such three (3) day period, Business Associate will provide the information that is available and continue diligent investigation and provide supplemental information as soon as reasonably practical and in no event later than twenty (20) days after becoming aware of the improper use, disclosure Breach or Security Incident.
Business Associate shall cooperate with Covered Entity’s investigation, analysis, notification and mitigation activities, and shall be responsible for all costs, damages, fees, penalties and related mitigation efforts for those activities. This Section constitutes notice by Business Associate to Covered Entity of the ongoing existence and occurrence of attempts of Unsuccessful Security Incidents for which no additional notice to Covered Entity shall be required. "Unsuccessful Security Incidents" means, without limitation, pings and other broadcast attacks on Business Associate's firewall, port scans, unsuccessful log-on attempts, denial of service attacks, and any combination of the above, so long as no such incident results in the circumvention or defeat of any security control or in unauthorized access, use or disclosure of PHI.
6. Mitigation of Harmful Effects. Business Associate agrees to mitigate, to the extent practicable, any harmful effect of a use or disclosure of PHI by Business Associate or its agents and subcontractors in violation of the requirements of HIPAA or this Agreement, including, but not limited to, compliance with any state law or contractual data breach requirements.
7. Agreements by Third Parties. Business Associate shall enter into an agreement with any agent or subcontractor of Business Associate that will access, create, receive, maintain or transmit PHI in connection with the services Business Associate provides to or on behalf of Covered Entity. Pursuant to such agreement, the agent or subcontractor shall agree to be bound by the same restrictions, terms, and conditions that apply to Business Associate with respect to such PHI, including, without limitation, the breach notification requirements set forth in 45 C.F.R. § 164.410. Business Associate agrees that it is responsible for the acts and omissions of its agents and subcontractors as if they were Business Associate's own acts and omissions.
8. Access to Information. Within five (5) days of a request by Covered Entity for access to PHI about an individual contained in a Designated Record Set, Business Associate shall make available to Covered Entity such PHI (for so long as such information is maintained by Business Associate in the Designated Record Set), as required by 45 C.F.R. § 164.524. In the event any individual requests access to PHI directly from 23 Business Associate, the Business Associate shall, within two (2) days, forward such request to Covered Entity.
9. Availability of PHI for Amendment. Within ten (10) days of receipt of a request from Covered Entity for amendment of an individual’s PHI or a record regarding an individual contained in a Designated Record Set (for so long as the PHI is maintained in the Designated Record Set), Business Associate shall provide such information to Covered Entity for amendment and incorporate any such amendments in the PHI as required by 45 C.F.R. § 164.526. In the event an individual makes a request for an amendment to PHI directly to Business Associate, such request shall be forwarded to Covered Entity within two (2) days.
10. Documentation of Disclosures; Accounting. Business Associate agrees to document disclosures of PHI and information related to such disclosures as would be required for Covered Entity to respond to an individual’s request for an accounting of disclosures of PHI in accordance with 45 C.F.R. § 164.528. At a minimum, Business Associate shall provide Covered Entity with the following information within ten (10) days of request by Covered Entity: (i) the date of the disclosure; (ii) the name of the entity or person who received the PHI, and if known, the address of such entity or person; (iii) a brief description of the PHI disclosed; and (iv) a brief statement of the purpose of such disclosure which includes an explanation of the basis for such disclosure. Covered Entity shall provide the accounting to individuals as required by 45 C.F.R. § 164.528. In the event the request for an accounting is delivered directly to Business Associate, such request shall be forwarded to the Covered Entity within two (2) days.
11. Management, Administration and Legal Responsibilities. To the extent permitted by the Master Agreement, this Agreement or any other arrangement with Covered Entity, Business Associate may use or disclose PHI received in its capacity as a Business Associate for the proper management and administration of the Business Associate, or as necessary to carry out the legal responsibilities of Business Associate if such use or disclosure is required by law, or Business Associate obtains, prior to making any such disclosure, reasonable assurances from the person to whom the information is disclosed: (a) that the PHI will remain confidential and will be used or further disclosed only as required by law or for the purpose for which it was disclosed to the person; and (b) that the Business Associate will be immediately notified of any known breaches of the confidentiality or security of the PHI.
12. Aggregation. Except as otherwise limited in this Agreement, if required by the Master Agreement, Business Associate may use PHI to provide Data Aggregation services to Covered Entity as permitted by 45 C.F.R. § 164.504(e)(2)(i)(B).
13. Other Obligations. To the extent that Business Associate is responsible under the Master Agreement for performing Covered Entity’s obligations under the Privacy Rule, Business Associate shall comply with the requirements of the Privacy Rule that apply to the Covered Entity in the performance of such obligations in accordance with 45 C.F.R. § 164.504(e)(2)(ii)(H).
14. Availability of Books and Records. Business Associate agrees to make its internal practices, books, and records relating to the use and disclosure of PHI available to the Secretary and Covered Entity for purposes of determining compliance with HIPAA.
15. Term; Effect of Termination.
(a) This Agreement shall be effective as of the Effective Date and shall terminate upon the termination of the Master Agreement.
24 (b) Upon the termination of the Master Agreement or this Agreement for any reason, Business Associate shall, if feasible, return to Covered Entity, or destroy, all PHI received from Covered Entity, or created or received by Business Associate on behalf of Covered Entity, that Business Associate maintains in any form, recorded on any medium, or stored in any storage system. Business Associate shall retain no copies of the PHI. This provision shall also apply to Business Associate's subcontractors and agents.
(c) In the event that Business Associate reasonably determines and Covered Entity agrees that returning or destroying the PHI is not feasible, Business Associate shall extend the protections required by HIPAA and this Agreement and limit further uses and disclosures of such PHI to those purposes that make the return or destruction infeasible, for so long as Business Associate maintains such PHI. This provision shall survive the termination or expiration of this Agreement for any reason.
16. Breach of Contract by Business Associate; Termination. (a) In addition to any other rights Covered Entity may have under the Master Agreement, this Agreement or by operation of law or in equity, and notwithstanding any provisions in the Master Agreement, Covered Entity may: (i) immediately terminate the Master Agreement and this Agreement if Covered Entity is aware of a pattern of activity or practice of the Business Associate in violation of HIPAA or this Agreement or if Covered Entity determines that Business Associate has violated a material term of this Agreement; or (ii) at Covered Entity’s option, permit Business Associate to cure or end any such violation within the time specified by Covered Entity, and terminate this Agreement and the Master Agreement if Business Associate fails to cure or end such violation within the specified time. (b) Covered Entity’s option to permit Business Associate to cure a breach of this Agreement shall not be construed as a waiver of any other rights Covered Entity has in the Master Agreement, this Agreement or by operation of law or in equity.
17. Third Party Rights. The terms of this Agreement are not intended, nor should they be construed, to grant any rights to any parties other than Business Associate and Covered Entity.
18. Indemnification. Business Associate shall indemnify, defend, and hold harmless Covered Entity and each of its officers, directors, employees and agents from and against any and all penalties, claims, losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by Covered Entity arising out of or in connection with (i) any use or disclosure of PHI by Business Associate or its agents and subcontractors not authorized by this Agreement, including any Breach or Security Incident, (ii) any breach of this Agreement by Business Associate, or (iii) Business Associate’s or its agents’ and subcontractors’ failure to comply with any obligation under HIPAA.
19. No Agency. This Agreement is not intended to create an agency or joint venture arrangement between the parties.
20. Injunctive Relief. Business Associate acknowledges and stipulates that the unauthorized use or disclosure of PHI by Business Associate or its subcontractors while performing services pursuant to the Master Agreement or this Agreement would cause irreparable harm to Covered Entity, and in such event, Covered Entity shall be entitled, if it so elects, to institute and prosecute proceedings in any court of competent jurisdiction, either in law or in equity, to obtain damages and injunctive relief, together with the right to recover from Business Associate costs, including reasonable attorneys’ fees, for any such breach of the terms and conditions of the Master Agreement or this Agreement. 25 21. Owner of PHI. Under no circumstances shall Business Associate be deemed in any respect to be the owner of any PHI accessed, created or received by or used or disclosed by or to Business Associate pursuant to the terms of the Master Agreement or this Agreement.
22. Changes in the Law. The Master Agreement and/or this Agreement, as appropriate, shall be amended to the extent necessary to conform to any new or revised legislation, rules and regulations to which either party is subject now or in the future including, without limitation, HIPAA.
23. Exclusion from Limitation of Liability. To the extent that Business Associate has limited its liability under the terms of the Master Agreement or some other document (e.g., a maximum recovery for direct damages or a disclaimer against any consequential, indirect or punitive damages or other limitations), all such limitations shall exclude any damages, fees, costs or other financial amounts arising out of or incurred in connection with the use, disclosure and obligations to safeguard PHI (including, without limitation, obligations resulting from a breach of PHI).
24. Judicial and Administrative Proceedings. In the event Business Associate receives a subpoena, court or administrative order or other discovery request or mandate for release of PHI, Business Associate shall notify Covered Entity of the request or mandate as soon as reasonably practicable, but in any event within two (2) days of receipt of such request or mandate and prior to responding to any such request or mandate. Covered Entity shall have the right and opportunity to object to such request or mandate and to seek a protective order or equivalent to ensure protection of the PHI, any applicable individual privacy rights, and applicable Covered Entity business operations.
25. Conflicts. If there is any direct conflict between the Master Agreement and this Agreement, the terms and conditions of this Agreement shall control with respect to the subject matter hereof.
26. Notices. Whenever, under this Agreement, one party is required to give notice to the other, such notice shall be deemed given if e-mailed to the other party or mailed by First Class United States mail, postage prepaid, and addressed to Business Associate at the e-mail or postal address provided under the signature of the Business Associate's authorized representative and to Covered Entity as follows:
Attention:
______________________
______________________
______________________
E-mail: ________________
Copy to:
Attention:
______________________
______________________
______________________
E-mail: _______________
Either party may at any time change its email or postal address for notification purposes by emailing or mailing a notice stating the change and setting forth the new e-mail or postal address. 26 27. Interpretation. Any ambiguity in this Agreement shall be resolved in favor of a meaning that permits Covered Entity to comply with HIPAA.
28. Insurance. Business Associate shall obtain and maintain insurance, including cyber liability coverage, with appropriate limits sufficient to cover all costs, expenses, losses and damages that may arise from Business Associate’s breach of this Agreement or any unauthorized use or disclosure of PHI by Business Associate, or its employees, agents and subcontractors.
29. Governing Law. This Agreement and the rights of the parties shall be governed by and construed in accordance with the laws of the state of CA. Venue regarding any action arising under this Agreement shall be in the state of CA. The parties submit to the jurisdiction of the courts of the state of CA for resolution of all disputes related to this Agreement, including the enforcement of any award or judgment arising out of arbitration provided under this agreement.
30. Assignment. Business Associate may not assign or subcontract its rights or responsibilities under this Agreement without Covered Entity's prior written consent.
31. Authority. Each person signing this Agreement represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written.
BUSINESS ASSOCIATE:
Signed
Printed
Date
COVERED ENTITY:
Signed
Printed
Date
Address (for Notices pursuant to Section 26):
Attention: __________________________
___________________________________
___________________________________
___________________________________
E-mail: ____________________________