Agenda Item No. 13
CITY OF YIJCAIPA
AGENDA, REPORT
TO: Honorable Mayor and City Council
FROM: Grant Malinowski, Fire Chief
FOR: City Council Meeting March 13, 2023
SUBJECT: CONFIRE Contract Agency Agreement
RECOMMENDATION:
That the City Council:
1. Authorizes the City Manager to enter into an agreement with Consolidated Fire Agencies (CONFIRE) with the intention to join and participate in the EMS Division, which would not pertain to dispatching services provided by CONFIRE through the dispatch division; and
2. Approve a budget adjustment for the initial contract agency fee of $41,398 DISCUSSION:
San Bernardino County has issued a Request for proposal for EMS Delivery services in 11 exclusive operating areas (EOAs) including the City of Yucaipa. Joining CONFIRE EMS division will allow the City of Yucaipa to have more Iocal control in 911 ambulance service and additional EMS system enhancement benefits. As a member of the CONFIRE EMS Division Subsidiary Committee, the City of Yucaipa will share in the responsibility of the collaborative development and implementation of a regionally shared EMS delivery system, that provides Advanced Life Support and Basic Life Support Ground Ambulance Services. The City of Yucaipa shall also benefit from the regionally shared EMS delivery system, that provides Advanced Life Support and Basic Life Support Ground Ambulance Services. This Agreement shall automatically terminate in the event that CONFIRM and the County of San Bernardino do not enter into a contract for CONFIRE and its independent third party to provide EMS services to include Advanced Life Support and Basic Life Support Ground Ambulance Services.
FISCAL IMPACT:
There would be an initial contract agency fee of $41,397.45 to be funded from the Fire Capital Fund. Upon successful completion of a contract with the County of San Bernardino and CONFIRE, the City of Yucaipa will share financial liability with all other CONFIRE EMS member agencies, A professional consultation performed by AP Triton Consulting has shown 349
that the CONFIRE EMS Division will be solvent with a reserve fund in three years. After all financial obligations of the EMS division are met the additional funds would be dispersed to the member agencies for internal EMS system enhancements.
Attachment: CONFIRE Contracting Agency Agreement
Approved by:
350
CONSOLIDATED FIRE AGENCIES
CONTRACTING AGT,'NCV AGREEMENT
(City of Yucaipa)
This Agreement (Agreement) is by and between the Consolidated Fire Agencies (CONFIRE), a joint powers authority duly authorized and existing under Government Code, § 6500 et seq., and the City of Yucaipa (Contracting Agency), a general law city duly formed and existing under Article XI, Section 7 of the California Constitution, CONFIRE and Contracting Agency may be individually referred to as a "Party" and collectively as the "Parties."
1. 2.
3. EXHIBITS
This Agreement has multiple Exhibits. Any Exhibit that is specified in this Agreement is by this reference made a part of it.
Exhibits include:
• Exhibit A: Services
• Exhibit II: Contributions
■ Exhibit C: Effective Date and Term
• Exhibit D: General Terms and Conditions
• Exhibit E: HIPAA Business Associate Agreement
(Note: Same Agreement utilized by all Contractor Agencies) 4 Appendix 1 to Exhibit E: General Terms and Conditions to HIPAA Business Associate Agreement
INDEPENDENT CONTRACTOR
a. Neither Contracting; Agency, nor any of Contracting Agency's employees, shall be considered officers, employees, agents, partner, or joint venture of CONFIRE; nor shall such persons be entitled to benefits of any kind or nature normally provided to employees of CONFIRE.
b. Neither CONFIRE nor any of CONFIRE's employees shall be considered officers, employees, agents, partner, or joint venture of Contracting Agency; nor shall such persons be entitled to benefits of any kind or nature normally provided to employees of Contracting Agency.
SERVICES
Contracting Agency shall benefit from the services and participate in the services described in Exhibit A ("Services").
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Contracting Agency Agrccmcnt between CONFIRE and City of Yucaipa 351
4. 5.
6. CONTRIBUTION
Contracting Agency shall make financial contributions for their participation in the Services as set forth in Exhibit B ("Contribution").
EFFECTIVE DATE AND TERM
The Effective Date and Term are set forth in Exhibit C.
GENERAL TERMS AND CONDITIONS
The General Terms and Conditions are set forth in Exhibit D.
7. NOTICE
Any notice required by this Agreement may be given either by personal service or by deposit (postage prepaid) in the U.S. mail addressed as follows:
To CONFIRE:
Consolidated Fire Agencies
Attn: Nathan Cooke, Director
1743 1vliro Way
Rialto, CA 92376
To Contracting Agency:
City of Yucaipa
Attn. Chris Mann, City Manager (effective
3/1/23)
34272 Yucaipa Boulevard
Yucaipa, CA 92399
cc: Grant Malinowski, Fire Chief
S. HIPPA BUSINESS ASSOCIATE AGREEMENT
The "Business Associate Agreement" by and between Contracting Agency and "CONFIRE" is set forth in Exhibit E.
The Parties have executed this Agreement on the dates indicated below.
Consolidated Fire Agencies
City of Yucaipa
Date: , 20 Date: , 20_
Print Name:
Its:
By:
Print Name:
Its:
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Contracting Agency Agreement between CONFIRM and City of Yucaipa 352
EXHIBIT A
to CONTRACTING AGENCY AGREEMENT
SERVICES
Contracting Agency shall be a member of the CGNFIRE EMS Division Subsidiary Committee as set forth in Administrative Committee Policy 6.002, attached here to as Exhibit A-L As a member of the CQNFIRE EMS Division Subsidiary Committee Contracting Agency shall share in the responsibility of the collaborative development and implementation of a regionally shared EMS delivery system, that provides Advanced Life Support and Basic Life Support Ground Ambulance Services. Contracting Agency shall also benefit from the regionally shared EMS delivery system, that provides Advanced Life Support and Basic Life Support Ground Ambulance Services. 00223631.2
Contracting Agency Agreement between CONFIRE and City of Yucaipa 353 Fags 3 of 16
I.0:I.21 0w4ml
to CONTRACTING AGENCY AGREEMENT
CONSOLIDATED FIDE AGENCIES
MANUAL OF ADMINISTRATIVE COMMITTEE POLICIES
Policy: 6.002
Title: EMS Division Subsidiary Committee
Adopted: [09.13.20221
Revised: [12.13.2022]
EMS Division Subsidiary Committee
There is hereby established an EMS Division Subsidiary Committee, which shall be organized and be responsible for the collaborative development and implementation of a regionally shared EMS delivery system.
A. Definitions
1. EMS: Also known as Emergency Medical Services.
2. EMS Division: One of four divisions within CONFIRE, established by action of the Administrative Committee at its meeting on March 7, 2022.
3. EMS Division Subsidiary Committee: Also known as the EMS Division Committee, established by the Administrative Committee through this Policy.
4. EMS Division Participants/Participant(s): All CONFIRE Member Agencies and Contract Agencies that enter into an MOU with CONFIRE to participate in the EMS Division.,
S. Member Agency: The Parties to the Third Amended and Restated Joint Powers Agreement for Consolidate Fire Agencies (CONFIRE), which are Apple Valley Fire Protection District, Chino Valley Fire District, City of Colton, City of Loma Linda, City of Redlands, City of Rialto, City of Victorville, Rancho Cucamonga Fire Protection District and San Bernardino County Fire Protection District. Additional Parties may be added upon amendment of the Joint Powers Agreement, G. Contract Agency: An entity that has been sponsored by an existing Member Agency, approved by the Board of Directors according to terms acceptable to CONFM.
7. Initial Membership Cost: Payment that shall be made by a Contract Agency participating in the EMS Division, as set forth in this Policy, B. Authority & Purpose
The EMS Division Committee shall meet regularly with the CONFIRE Director and Administrative Committee to provide advice and direction on matters related to the EMS Division, both operationally and administratively.
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Contracting Agency Agreement between CONFIRE and City of Yucaipa 354 Page 4 of 16
EMS Division Committee is responsible for all matters relating to the origination and operation of the EMS Division, as delegated by the Administrative Committee. Such delegated responsibilities include but are not limited to:
• Establish the initial governance, EMS Division Operational Structure, financing and cost sharing methods of CONFINE°s EMS Division. Present recommendation to the Administrative Committee and Board of Directors for approval. • Establish an annual EMS Division Budget for presentation to and approval by the Administrative Committee and Board of Directors with the following priorities:
o Priority I — Contractual obligations & Operational costs for the EMS Division o Priority 2 — Build reserves for the EMS Division
o Priority 3 — System enhancements and system reinvestment a Priority 4 — If applicable, repayment of cost contributions by EMS Division Committee Participants or Private Ambulance Partner.
Note: Initial Membership Costs shall not be repaid.
o Priority 5 -- Equitable distribution of unused / unassigned fund balance to the Participants through FRALS agreements. FRALS agreements will be created based upon the ambulance contract between San Bernardino County and CONFINE.
• Monitor fiscal and operational performance.
• Participate in annual CONFIRE audit.
• Develop policies for the operations and administration of the EMS Division. • Evaluate need for ongoing governance model changes.
• Evaluate performance of Private Ambulance Partner.
C. Membership
Each Member, or Contract Agency of the EMS Division through MOU, shall be entitled to one (1) seat and one (1) alternate seat on the EMS Division Committee ("Participant").
Participation on the EMS Division Committee is not mandatory. However, participation is required for those Member and Contract Agencies that intend to invest in the regionally shared EMS delivery System and realize any potential benefits derived from that investment. Each Participant assumes full risk and liability.
Contracting Agencies shall formally declare in writing their intent to participate in the EMS Division no later than December 31, 2022. Any city, district or agency who desires to participate at a later date will not have an opportunity to do so until such time as the JPA seeks contract extension with ICEMA anticipated to be at five years post the date of inception of services, currently anticipated to be in 2029. At that time, said entity shall declare their wishes to participate in the JPA EMS Division which will be considered by the CONFIRE Board of Directors and Administrative Committee. 00223631.2
Contracting Agency Agreement between CONFIRE and City of Yucaipa 355
Initial Membership Cost for a Contract Agency participating in the EMS Division is based on Total Cost divided by Total EMS Division Participants. Examples of EMS Division Initial Membership Costs are the following:
- Consulting Fees
- Legal Fees
- Reserves
Other Related Fees
The Initial Membership Cost is due no later than 60 days following the signing of a Memorandum of Understanding to participate as a Contracting Agency no later than February 28, 2023, unless extended by unanimous approval by the EMS Division Committee. The formula below outlines assumed costs for the formal response to San Bernardino County°s Request for Proposals for Ambulance Services, and shall serve as the baseline entry level fee for Contracting Agencies.
Initial Membership costs shall be based on the following formula:
Initial Membership Cost = (Consulting Fees + Legal Fees + Reserves Expended + Other Related Costs)
Total Participants
Estimated Initial Costs = $255 372+100 000+100 000
I I Participants
Note: The estimated costs assume 1 1 participants and provides a good faith estimate on the expected costs.
In the event that the Estimated Initial Cost is higher than estimated above, as determined by a formal review by the EMS Committee, the Initial Membership Cost will be increased accordingly. Any additional Initial Membership cost owed by a Contract Agency shall be paid within sixty (60) days.
The following EOAs and the prospective EMS Participant, are listed below:
EOA
General Area
EMS Participant(s) within EOA
1 Rancho Cucamonga, Upland, Mt. Baldy
RCF BDC
2 Chino, Montclair
CHO MTC
3 Chino Hills, Ontario
CHO, OTO
4 Fontana Bloomington, Lytle Creek
BDC
5b
UnincoE2orated 2ockets in Rialto
BDC
6 Colton, San Bernardino, Musco , Devore
COL BDC
7 Grand Terrace, Parts of Redlands,
Highland, Parts of Colton
BDC, RED, HGH, COL
8 Redlands, Highland, Mentone, Yucaipa,
Oak Glen
RED, HGH, BDC, YUC
9 Loma Linda
[LOM
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Contracting Agency Agreement between CONFIRE and City of Yucaipa 356 Page 6 of 16
11 Waterman Canyon, San Bernardino
National Forest Front Country
BDC
12a
Victorville, Adelanto, Apple Valley
VCV, BDC, APP
D. Meetings
Meetings of the EMS Division Committee will be called on an as -needed basis.
Quorum
While participation is not mandatory, two thirds of the Participants must be present for a recommendation to be brought forward to the Administrative Committee and/or Board of Directors of CCNFIRE.
Voting
Each Participant shall cast one (1) vote. In order for the EMS Division Committee to bring forward a recommendation, a majority of the quorum must approve the action,
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Contracting Agency Agreement between CONFIRF and City of Yucaipa 357
EXHIBIT B
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CONTRIBUTION
Contracting Agency's Contribution "Initial Contribution" and any subsequent Contribution shall be consistent with Administrative Committee Policy 6.002, attached hereto as Exhibit A-1.
A. INITIAL MEMBERSHIP COST
1. In exchange for their initial membership Contracting Agency shall pay CONFIRE a sum of:
Initial Membership Cost = ($,255,372+100,000+100,000)
11 Participants
TOTAL; $41,397.45
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Contracting Agency Agreement between CONFIRE and City of Yucaipa 358 Page 8 of 16
EXHIBIT C
EFFECTIVE DATE AND TERM
This Agreement is effective on January 1, 2023 ("Effective Date")
2. Unless terminated as set forth below, the term of this Agreement shall be: (i) from the Effective bate through (d) June 30, 2029 (the "Term").
3. TERMINATION
This Agreement shall automatically terminate in the event that CONFIRE and the County of San Bernardino do not enter into a contract for CONFIR E and its independent third party to provide EMS services to include Advanced Life Support and Basic Life Support Ground Ambulance Services, for the EOA's identified in Administrative Committee Policy 6,002, attached hereto as Exhibit A-1.
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Contracting Agency Agreement between CDNFiRE and City of Yucaipa 359
EXHIBIT D
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GENERAL TERMS AND CONDITIONS
PROVISIONS REQUIRED BY LAW DEEMED INSERTED. Each and every provision of law and clause required by law to be inserted in this Agreement shall be deemed to be inserted and this Agreement shall be read and enforced as though it were included. If through mistake or otherwise, any provision is not inserted or is not correctly inserted, then upon application of either Party, the Agreement shall be amended to make the insertion or correction. Ali references to statutes and regulations shall include all amendments, replacements, and enactments in the subject which are in effect as of the date of this Agreement, and any later changes which do not materially and substantially alter the positions of the Parties.
2. ASSIGNMENT AND SUCCESSORS. Neither Party shall, without the prior written consent of the other Party, assign the benefit or in any way transfer their respective obligations under this Agreement, This Agreement shall inure to the benefit of and be binding upon the Parties hereto and, except as otherwise provided herein, upon their executors, administrators, successors, and assigns.
3. SEVERABILITY. In the event that any provision of this Agreement shall be construed to be illegal or invalid for any reason, said illegality or invalidity shall not affect the remaining provisions hereof, but such illegal or invalid provision shall be fully severable and this Agreement shall be construed and enforced as if such illegal or invalid provision had never been included herein, unless to do so would frustrate the intent and purpose of this Agreement.
4. FORCE MAJEURE, No Party shall be liable to any other Party for any loss or damage of any kind or for any default or delay in the performance of its obligations under this Agreement (except for payment obligations) if and to the extent that the same is caused, directly or indirectly, by fire, flood, earthquake, elements of nature, epidemics, pandemics, quarantines, acts of God, acts of war, terrorism, civil unrest or political, religious, civil or economic strife, or any other cause beyond a Party's reasonable control.
VENUE/GOVERNING LAWS. This Agreement shall be governed by the laws of the State of California. The venue of any action or claim brought by any Party to this Agreement shall be the County of San Bernardino.
6. ATTORNEY'S FEES. If suit is brought by either Party to enforce any of the terms of this Agreement, each Party shall bear its own attorney's fees and costs.
7, ENTIRE AGREEMENT. This Agreement represents the entire agreement between Parties and supersedes all prior negotiations, representations or agreements, either written or oral, This Agreement may be amended or modified only by an agreement in writing, signed by both Contracting Agency and CONIiIRE.
8. MODIFICATION. This Agreement may be amended at any time by the written agreement of CONFIRE and Contracting Agency.
9. WAIVER. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver of a subsequent breach of the same or any other provision under this Agreement.
10. AUTHORITY. The individual executing this Agreement on behalf of Contracting Agency warrants that he/she is authorized to execute the Agreement on behalf of Contracting Agency and that Contracting Agency will be bound by the terms and conditions contained herein.
11. HEADINGS AND CONSTRUCTION. Headings at the beginning of each paragraph and subparagraph are solely for the convenience of the Parties and are not a part of the Agreement. Whenever required by the context of this Agreement, the singular shall include the plural and the masculine shall include the feminine and vice versa. This Agreement shall not be construed as if it had been prepared by one of the Parties, but rather as if both Parties had prepared the same. Unless otherwise indicated, all references to paragraphs, sections, subparagraphs, and subsections are to this Agreement.
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Contracting Agency Agreement between CONFIRE and City of Yucaipa 360 Page 10 of 16
12. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which, together, when signed by all of the Parties hereto, shall constitute one and the same instrument. A facsimile or electronic signature shall be as valid as an original.
13. INDEMNIFICATION.
A. By CONFIRE. CONFIRE shall indemnify, defend and hold harmless Contracting Agency, and all of its employees, officials, and agents ("Contracting Agency Parties"), from and against any and all claims, demands, suits, judgments, expenses and costs of any and every kind, whether actual, alleged or threatened, including attorney's fees and costs, court costs, interest, defense costs, and expert witness fees, insofar as it may legally do so, arising from the negligent or wrongful acts or omissions of CONFIRE'S officers, agents, volunteers or employees ("CONFIRE's Parties") arising out of, or in any way attributable to, the performance of this Agreement. CONFIRE shall not be held responsible or liable for any loss, damage, detention or delay caused by strike, lockout, fire, flood, act or civil or military authority, insurrection or riot, or by any other cause which is not foreseeably within its control. CONFIRE's obligation to defend the Contracting Agency Parties is not contingent upon there being an acknowledgement or determination of the merit of any claims, demands, actions, causes of action, suits, losses, liability, expenses, penalties, obligations, errors, omissions, and/or costs.
B. By Contracting Agency. Contracting Agency shall indemnify, defend and hold harmless CONFIRE Parties from and against any and all claims, demands, suits, judgments, expenses and costs of any and every kind, whether actual, alleged or threatened, including attorney's fees and costs, court costs, interest, defense costs, and expert witness fees, insofar as it may legally do so, arising from the negligent or wrongful acts or omissions of Contracting Agency Parties arising out of, or in any way attributable to the performance of this Agreement.
Contracting Agency shall not be held responsible or liable for any loss, damage, detention or delay caused by strike, lockout, fire, flood, act or civil or military authority, insurrection or riot, or by any other cause which not foreseeably within its control. Contracting Agency's obligation to defend CONFIRE Parties is not contingent upon there being an acknowledgement or determination of the merit of any claims, demands, actions, causes of action, suits, losses, liability, expenses, penalties, obligations, errors, omissions, and/or costs.
14. INSURANCE.
A. Each Party shall carry $1,000,000/$2,000,000 (occurrence/general and product/completed operations aggregate) of commercial general liability coverage (or participate in a public agency risk pool for such amount) and each Party agrees to give the other, its directors officers, employees, or authorized volunteers insured status under its policy using ISO "occurrence" form CG 00 01 or equivalent and to provide a certificate of insurance and additional insured endorsement. Commercial general liability insurance and endorsements shall be kept in force at all times during the performance of this Agreement.
B. Each Party shall carry Workers' Compensation Insurance, as required by the State of California and Employer's Liability Insurance with a limit of not less than $1,000,000 each accident for bodily injury and $1,000,000 each employee for bodily injury by disease.
C. Each Party shall carry Automobile Liability Insurance (or participate in a public agency risk pool for such amount) with coverage at least as broad as ISO )corm CA 0001 covering "Any Auto" (Symbol 1), including owned, non -owned and hired autos, or the equivalent with minimum limits of S 1,000,000 each accident.
15. ASSUMPTION OF UNFUNDED LIABILITIES ATTRIBUTABLE TO CONTRACTING AGENCY.
A. The Parties expressly acknowledge:
(1) CONFIRE, in providing the Services in this Agreement, will incur otherwise unfunded liabilities, (e.g., continuing obligations to provide for the pensions CONFIRE staff hired to provide service to Contracting Agency) ("Unfunded Liabilities").
(2) The Contribution set forth in the Agreement does not adequately compensate CONFIRE for such Unfunded Liabilities; and
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Contracting Agency Agreement between CONFIRE and City of Yucaipa 361 Page 11 of 16
(3) The Parties intend Section 15 to ensure that CONFIRE is held harmless from otherwise unfunded liabilities to the extent that those Unfunded Liabilities are attributable to Contracting Agency. (4) The parties do not intend this Section 15 to apply to unfunded liabilities that are solely attributable to an increase in service level provided to all of CONFIRE's member agencies and contracting agencies.
B. To the furthest extent permitted by applicable law, Contracting Agency shall indemnify CONFIRE from any and all liabilities of any kind, nature, and description directly or indirectly arising out of, connected with, or resulting from Unfunded Liabilities incurred by CONFIRE as a result of CONFIRE providing the Services to Contracting Agency, unless the liabilities are caused wholly by CONFIRE activities of general applicability to all of CONFIRE's member agencies and contracting agencies. By way of illustration and not by limitation, in the event that CONFIRE must hire staff to render the Services to Contracting Agency, and as a result of this Agreement's termination such staff must be laid -off, and as a result CONFIRE incurs unfunded pension liability, then Contracting Agency shall indemnify CONFIRE for such unfunded pension liability.
C. The provisions of Section 15.A and 15.3 shall not be applicable to a Contracting Agency who applies for, and is accepted for, membership status in the CONFIRE joint powers agreement. In such cases, the provisions of the CONFIRE joint powers agreement then in effect shall control all matters relating to unfunded liability. 0022363x z
Contracting Agency Agreement between CONFIRE and City of Yucaipa 362
EXHIBIT E
to CONTRACTING AGENCY AGREEMENT
BUSINESS ASSOCIATE AGREEMENT
BY AND BETWEEN
CONTRACTING AGENCY AND CONFIRE
This Business Associate Agreement ("BAA"') is entered into by and between Consolidated Fire Agencies ("Business Associate"), a California joint powers authority existing pursuant to Gov.
Code, § 6500 et seq., and the City of Yucaipa ("Covered Entity"), a general law city duly formed and existing under Article XI, Section 7 of the California Constitution. Business Associate and Covered Entity may be collectively referred to as the "Parties" or individually as a "Party."
RECITALS
Covered Entity is contracting with Business Associate for the performance of certain services ("Services"), as set forth in the Agreement to which this BAA is attached as Exhibit E; Covered Entity is a covered entity as defined in 45 C.F.R. § 160,103; Business Associate is a business associate, as defined in 45 C.F.R. § 160.103, of Covered Entity; 45 C.F.R. § 164.504 requires that covered entities enter into agreements with their business associates that satisfy the requirements of 45 C.F.R. § 164.504(e)(2); and Business .Associate and Covered Entity are both governmental entities for the purposes of 45 C.F.R. § 14.504 (e)(3)(i).
AGREEMENT
1. General Terms and Conditions
The General Terms and Conditions to this BAA are set forth in AARnendix I .
The Parties have executed this Agreement on the dates indicated below. The last of the two dates shall be the "Effective Date" of this BAA.
Consolidated Fire Agencies City of Yucaipa
Date: , 20_ Date: , 20_
By: _ By:
Print Name: Print Name:
Its: Its:
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Contracting Agency Agreement between CONFIRE and City of Yucaipa 363
APPENDIX 1 TO EXHIBIT E
to CONTRACTING AGENCY AGREEMENT
General Terms and Conditions to Business Associate Agreement I. DEFINITIONS.
a. Qervally, Capitalized terms used within the
BAA without definition, including within
this Appendix 1, shall have the meanings
ascribed to them in the Health Insurance
Portability and Accountability Act and 45
C.F.R. Part 160 and 164 ("HIPAA and
14IPAA Regulations"), and the flealth
Information Technology for Economic and
Clinical Health Act and 45 C.F,R. Part 170
("HITECH Act and Regulations"), as
applicable, unless otherwise defined herein.
HIPAA and HIPAA Regulations and
HITECH Act and Regulations are
collectively referred to herein as "Applicable
Law".
b. Catch -ail definition, The following terms
used in this BAA shall have the same
meaning as those terms in the HIPAA and
HIPAA Regulations: Breach, Data
Aggregation, Designated Record Set,
Disclosure, Health Care Operations,
Individual, Minimum Necessary, Notice of
Privacy Practices, Protected Health
Information, Required By Law, Secretary,
Security Incident, Subcontractor, Unsecured
Protected Health Information, and Use.
IL OBLIGATIONS AND ACTIVITIES OF
BUSINESS ASSOCIATE.
Business Associate agrees to:
a. Not use or disclose Protected Health
Information other than as permitted or
required by this BAA, the Agreement, or as
required by law;
b. Use appropriate safeguards, and comply with
Subpart C of 45 CFR Part 164 with respect to
electronic Protected Health Information, to
prevent Use or Disclosure of Protected
Health Information other than as provided for
by this BAA;
c. Report to Covered Entity any Use or
Disclosure of Protected Health Information
not provided for by this BAA of which it
becomes aware, including breaches of
Unsecured Protected Health Information as
required at 45 CFR 164.410, and any Security
Incident of which it becomes aware;
d. In accordance with 45 CFR 164.502(e)(1)(ii)
and 164.308(b)(2), if applicable, ensure that
any Subcontractors that create, receive,
maintain, or transmit Protected Health
Information on behalf of the Business
Associate agree to the same restrictions,
conditions, and requirements that apply to
Business Associate with respect to such
information;
e. Make available Protected Health Information
in a Designated Record Set to Covered Entity
or to an individual whose Protected Health
Information is maintained by Business
Associate, or the individual's designee, and
document and retain the documentation
required by 45 CFR 164.5300), as necessary
to satisfy Covered Entity's obligations under
45 CFR 164.524;
f. Make any amendment(s) to Protected Health
Information in a Designated Record Set as
directed or agreed to by the Covered Entity
pursuant to 45 CFR 164.526, or take other
measures as necessary to satisfy Covered
Entity's obligations under 45 CFR 164.526;
g. Maintain and make available the information
required to provide an accounting of
Disclosures to the Covered Entity as
necessary to satisfy Covered Entity's
obligations under 45 CFR 164.528;
h. To the extent the Business Associate is to
carry out one or more of Covered Entity's
obligation(s) under Subpart E of 45 CFR Part
164, comply with the requirements of
Subpart E that apply to the Covered Entity in
the performance of such obligation(s); and
i. Make its internal practices, books, and
records available to the Secretary for
purposes of determining Business
Associate's or Covered Entity's compliance
with HIPAA and HIPAA Regulations.
III. PERMITTED USES AND DISCLOSURES
BY BUSINESS ASSOCIATE.
a. Business Associate may only Use or Disclose
Protected Health Information as necessary to
perform the Agreement(s).
b, Business Associate may Use or Disclose
Protected Health Information as required by
law.
c. Business Associate agrees to make Uses and
Disclosures and requests for Protected Health
Information consistent with Covered Entity's
Minimum Necessary policies and
procedures.
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Contracting Agency Agreement between CONFIR1E and City of Yucaipa
364
d. Business Associate may not Use or Disclose
Protected Health Information in a manner
that would violate Subpart E of 45 CFR Part
164 if done by Covered Entity.
IV. PERMISSIBLE REQUESTS BY COVERED
ENTITY.
a. Covered Entity shall not request Business
Associate to Use or Disclose Protected
Health Information in any manner that would
not be permissible under Subpart E of 45
CFR Part 164 if done by Covered Entity,
V. TERM AND TERMINATION.
a. Term. This BAA is effective as of the
Effective Date and will continue in force until
terminated.
b. Termination for Convenience, Either Party
may terminate this BAA at any time, for any
reason or for no reason, by giving the other
Party at least thirty (30) days' prior written
notice.
c, Obligations of Business Associate Upon
Termination, Upon termination of this BAA
for any reason, Business Associate shall
return to Covered Entity or, if agreed to by
Covered Entity, destroy all Protected Health
Information received from Covered Entity, or
created, maintained, or received by Business
Associate on behalf of Covered Entity, that
the Business Associate still maintains in any
forth, Business Associate shall retain no
copies of the Protected Health Information.
Upon termination of this BAA for any
reason, Business Associate, with respect to
Protected Health Information received from
Covered Entity, or created, maintained, or
received by Business Associate on behalf of
Covered Entity, shall:
i. Retain only that Protected Health
Information which is necessary for
Business Associate to continue its proper
management and administration or to
carry out its legal responsibilities;
ii. Return to Covered Entity or, if agreed to
by Covered Entity, destroy the
remaining Protected Health Information
that the Business Associate still
maintains in any form;
ill. Continue to use appropriate safeguards
and comply with Subpart C of 45 CFR
Part 164 with respect to electronic
Protected Health Information to prevent
use or disclosure of the Protected Health
Information, other than as provided for
in this Section, for as long as Business
Associate retains the Protected Health
Information;
iv. Not use or disclose the Protected Health
Information retained by Business
Associate other than for the purposes for
which such Protected Health
Information was retained and subject to
the same conditions which applied prior
to termination; and
v, Return to Covered Bntity or, if agreed to
by Covered Entity, destroy the Protected
Health Information retained by Business
Associate when it is no longer needed by
Business Associate for its proper
management and administration or to
carry out its legal responsibilities.
d. Survival. The obligations of Business
Associate under this Section shall survive the
termination of this BAA.
Vl. MISCELLANEOUS.
a. Governmental Access to Records. Business
Associate shall make its internal practices,
books and records relating to the Use and
Disclosure of P141 available to the Secretary
for purposes of determining Covered Entity's
compliance with the Applicable Law. Except
to the extent prohibited by law, Business
Associate agrees to notify Covered Entity of
all requests served upon Business Associate
for information or documentation by or on
behalf of the Secretary. Business Associate
shall provide to Covered Entity a copy of any
PHI that Business Associate provides to the
Secretary concurrently with providing such
PHI to the Secretary.
b. Public Access and Ownership of Records.
Covered Entity is a local agency subject to
the Public Records Act, Government Code §
6250 et seq. ("PRA"). In the event that
Business Associate receives a request for
records prepared, owned, used, or retained by
Covered Entity or for records prepared,
owned, used, or retained by Business
Associate in the course and scope of
providing the services for Covered Entity
described in the Agreement as amended from
time to time ("PRA Request"), Business
Associate shall promptly forward a copy of
the PRA Request to Covered Entity for
fulfillment by the Covered Entity, Business
Associate understands and agrees that all
records produced under the Agreement as
amended from time to time are hereby the
property of Covered Entity and cannot be
used without Covered Entity's express
written permission. Covered Entity shall
have all right, title and interest in said
records, including the right to secure and
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maintain the copyright, trademark and/or
patent of said records in the name of the
Covered Entity.
c. Minimum Necessai3r. To the extent required
by the HITECH Act and Regulations,
Business Associate shall limit its Use,
Disclosure or request of PHI to the Limited
Data Set or, if needed, to the minimum
necessary to accomplish the intended Use,
Disclosure or request, respectively. Effective
on the date the Secretary issues guidance on
what constitutes "minimum necessary" for
purposes of the Applicable Law, Business
Associate shall limit its Use, Disclosure or
request of PHI to only the minimum
necessary as set forth in such guidance.
d. State Privacy Laws. Business Associate shall
comply with California laws to the extent that
such state privacy laws are not preempted by
Applicable Law.
e. NQ_ Third Party Beneficiaries. Nothing
express or implied in this BAA is intended to
confer, nor shall anything herein confer, upon
any person other than Covered Entity,
Business Associate and their respective
successors or assigns, any rights, remedies,
obligations or liabilities whatsoever.
f. Effect on UnderLyin Arrangement. In the
event of any conflict between this BAA and
any underlying arrangement between
Covered Entity and Business Associate,
including the Agreements as amended from
time to time, the terms of the BAA shall
control with respect to Protected Health
Information.
g. Interpretation. This BAA shall be interpreted
as broadly as necessary to implement and
comply with Applicable Law, The Parties
agree that any ambiguity in the BAA shall be
resolved in favor of a meaning that complies
and is consistent with the Applicable Law.
h.ernin�, This BAA shall be
construed in accordance with the laws of the
State of California.
i. Provisions Required by Law Deemed
Inserted. Each and every provision of law and
clause required by law to be inserted in this
BAA shall be deemed to be inserted herein
and this BAA shall be read and enforced as
though it were included therein.
j. Severability. In the event that any provision
of this l3AA shall be construed to be illegal
or invalid for any reason, said illegality or
invalidity shall not affect the remaining
provisions hereof, but such illegal or invalid
provision shall be fully severable and this
BAA shall be construed and enforced as if
such illegal or invalid provision had never
been included herein, unless to do so would
frustrate the intent and purpose of this BAA.
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