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Resolution No. 2010-118
RESOLUTION NO. 2010-118 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A SERVICES AGREEMENT FOR AMBULANCE BILLING SERVICES BY AND BETWEEN THE CITY OF VERNON AND WITTMAN ENTERPRISES, LLC AND A HIPAA BUSINESS ASSOCIATE AGREEMENT FOR THE USE OF HEALTH INFORMATION BY WITTMAN ENTERPRISES, LLC WHEREAS, on February 9, 2009, the City Council of the City of Vernon adopted Resolution No. 9860 authorizing the institution of a paramedic program and authorizing the City Administrator, or his designee, to take all actions necessary to create the program and negotiate agreements as necessary to implement the program, subject to the City,Council's approval of the final documents; and WHEREAS, the City's paramedic program commenced on June 19, 2009; and WHEREAS, on July 13, 2009, the City Council of the City of Vernon adopted Resolution No. 10,006 approving an agreement with Bowers Companies, Inc. dba Bowers Ambulance Services to provide ambulance transport services, including Emergency Ground Ambulance Service to include exclusive primary Basic Life Support and Advanced Life Support ambulance transport services in order to supplement the City's paramedic program; and WHEREAS, the City needs the services of a vendor to perform certain ambulance billing services; and WHEREAS, in order for the vendor to obtain health claims data in accordance with the Health Insurance Portability and Accountability Act of 1996 and 45 CFR Parts 160-164 (the "Privacy Rule"), the City will need to enter into an agreement to satisfy the "business associate" and related requirements within the meaning of the Privacy Rule; and WHEREAS, such a "business associate" agreement will be I ntered into concurrently with an agreement with the vendor; and WHEREAS, the City and Wittman Enterprises, LLC ("Wittman") desire to enter into a Services Agreement to provide the ambulance billing services needed by the City and to enter into a HIPAA Business Associate Agreement to satisfy the requirements of the Privacy Rule; and WHEREAS, Wittman has the necessary experience to provide the City with ambulance billing services; and WHEREAS, by memo dated July 26, 2010, the Fire Chief has recommended that the City enter into a Services Agreement and a HIPAA Business Associate Agreement with Wittman for ambulance billing services; and WHEREAS, the City Council of the City of Vernon has determined that, pursuant to the provisions of subsections (b)(1) and (7) of Section 2.27 of the Vernon City Code, it is in the City's best interest to enter into separate agreements with Wittman to enhance the efficient operation of the City. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VERNON AS FOLLOWS: SECTION`1: The City Council of the City of Vernon hereby finds and determines that the recitals contained hereinabove are true and correct. SECTION 2: The City Council of the City of Vernon hereby approves the Services Agreement for Ambulance Billing Services with Wittman, in substantially the same form as the copy attached hereto as - 2 - Exhibit A, and authorizes the City Administrator, or his designee, to negotiate minor modifications to the Services Agreement which in the opinion of the City Attorney will better protect the City. SECTION 3: The City Council of the City of Vernon hereby approves the HIPAA Business Associate Agreement with Wittman, in substantially the same form as the copy attached hereto as Exhibit B, and authorizes the City Administrator, or his designee, to•negotiate minor modifications to the Services Agreement which in the opinion of the City Attorney will better protect the City. SECTION 4: The City Council of the City of Vernon hereby authorizes the Mayor or Mayor Pro-Tem to execute said Agreements for, and on behalf of, the City of Vernon or alternatively, to execute modified Agreements if the changes negotiated are approved by the City Attorney, and the City Clerk, or Deputy City Clerk, is hereby authorized to attest thereto. SECTION 5: The City Council of the City of Vernon hereby authorizes the City Administrator, or his designee, to take whatever actions are deemed necessary or desirable for the purpose of implementing and carrying out the purposes of this Resolution and the transactions herein approved or authorized. SECTION 6: The City Council of the City of Vernon hereby directs the City Clerk, or the City Clerk's designee, to transmit one fully executed Services Agreement for Ambulance Billing Services and one fully executed HIPAA Business Associate Agreement to: Wittman Enterprises, LLC Attn.: Corinne Wittman -Wong, CEO 21 Blue Sky Court, Suite A Sacramento, CA 95828 - 3 - SECTION 7: The City Clerk of the City of Vernon shall certify to the passage, approval and adoption of this Resolution, and the City Clerk of the City of Vernon shall cause this Resolution and the City Clerk's certification to be entered in the File of Resolutions of the Council of this City. APPROVED AND ADOPTED this 16th day of August, 2010. AT/TEST: -I-- Name. Hilario Gonzales Title: Mayor - 4 - STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) I, Willard.G. Yamaguchi, City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 2010-118, was duly passed, approved and adopted by the City Council of the City of Vernon August 16, 2010, and thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of Vernon. Executed this IL day of August 2010, at Vernon, California. (SEAL) 9 - 5 - SERVICES AGREEMENT BETWEEN THE CITY OF VERNON AND WITTMAN ENTERPRISES, LLC FOR AMBULANCE BILLING SERVICES Contractor: Responsible Principal of Contractor: Notice Information - Contractor: With a Copy to Notice Information City: Commencement Date: Termination Date: Consideration: COVER PAGE Wittman Enterprises,LLC Corinne Wittman -Wong, CEO Wittman Enterprises, LLC 21 Blue Sky Court Suite A Sacramento, CA 95828 Attention: Corinne Wittman -Wong, CEO Phone:( ) Facsimile: (916) 471-5108 Jon Riese, Esq. Signature Law Group 3400 Bradshaw Road, Suite A-4A Sacramento, California 95827 Phone: ( ) Facsimile: (. ) City of Vernon 4305 Santa Fe Avenue Vernon, CA 90058 Attention: Mark Whitworth City Administrator Telephone: (323) 583-8811 Facsimile: (323) 826-1422 Effective Date, as defined in the introductory clause of this Agreement January 31, 2011, unless extended pursuant to Section 1 Seven and a half percent (7.5 %) of the monthly net collections as more particularly described in Exhibit B Records Retention Period: Six (6) years SERVICES AGREEMENT BETWEEN THE CITY OF VERNON AND WITTMAN ENTERPRISES, LLC FOR AMBULANCE BILLING SERVICES THIS AGREEMENT is made and entered into as of , 2010 ("Effective Date"), by and between the City of Vernon, a California charter City and California municipal corporation ("City"), and Wittman Enterprises, LLC, a California limited liability company ("Contractor"). City and, Contractor are collectively referred to herein as the "Parties." RECITALS A. City desires to have certain ambulance billing services provided as more fully set forth in the Scope of Services, attached hereto and incorporated herein as Exhibit A. B. Contractor represents it is qualified and capable of furnishing the labor, materials, and expertise necessary to perform such services in accordance with the terms and conditions set forth in this Agreement. C. Concurrently with entering into this Agreement the Parties are also entering into the HIPAA Business Associate Agreement ("HIPAA Agreement"). NOW, THEREFORE, the parties agree as follows: Section 1. Term and Time of Performance. (a) This Agreement shall commence upon the Commencement Date listed on the Cover Page, and shall remain and continue in effect through the Termination Date listed on the Cover Page, unless sooner terminated pursuant to the provisions of this Agreement. City may renew this Agreement on a year-to-year basis at its discretion. Any services performed prior to the Effective Date listed above shall for all purposes be deemed to have been performed pursuant to this Agreement, subject to the terms and conditions hereof. (b) In the event that City renews this Agreement, Contractor may submit a proposal to increase its rates no later than thirty (30) days after receiving notice of City's intent to renew. Any increase in rates must be approved by City before such increase can take effect. If City fails to approve the proposed increase within thirty (30) days of receipt, Contractor may terminate the renewal by giving thirty (30) days written notice. Section 2. Performance. (a) Contractor shall perform the services and tasks described and set forth in the Scope, of Services, Exhibit A ("Services"). Additional services must be mutually agreed upon in writing signed by both Parties prior to performance of those additional services. (b) Contractor shall at all times faithfully, competently and to the best of its ability, experience, and talent, perform all Services under this Agreement in accordance with the standard of care and skill ordinarily exercised by members of the profession currently practicing in the same locality under similar circumstances and in a manner reasonably satisfactory to City. 0) (c) Contractor shall keep itself informed of all local, state, and federal ordinances, laws and regulations which in any manner affect those employed by it or in any way affect the performance of its Services pursuant to this Agreement. Contractor shall at all times observe and comply with all such ordinances, laws and regulations. City, and its officers, officials, employees, agents or volunteers shall not be liable at law or in equity occasioned by failure of Contractor to comply with this paragraph. (d) Contractor will not be compensated for any work performed not specified in Exhibit A unless City authorizes such work in advance and in writing. Section 3. Compensation. (a) City agrees to compensate Contractor, and Contractor agrees to accept in full satisfaction for the services required by this Agreement, the Contractor's Fee and expense reimbursement set forth in Exhibit B ("Contractor's Fee and Expenses"). The Contractor's Fee and Expenses shall constitute reimbursement of Contractor's fee for the services as well as the actual cost of any equipment, materials, and supplies necessary to provide the services (including without limitation, all labor, materials, delivery, tax, assembly, and installation, as applicable). (b) Contractor shall be entitled to reimbursement only for those expenses expressly set forth in Exhibit B. Any expenses incurred by Contractor that are not expressly authorized by this Agreement will not be reimbursed by City. Section 4. Method of Payment. (a) Invoices. Contractor shall submit invoices monthly for services and expenses. Invoices shall include the month for which the services were provided, the dates of such services, and a description of the services provided for that billing period. Each invoice shall include copies of supporting documents as City may require. (b) Payments by City. Payments of each invoice shall be made by City within thirty (30) days following receipt of each invoice as to all non -disputed fees. If City disputes any of Contractor's fees, it shall give written notice to Contractor within thirty (30) days of receipt of the disputed invoice. Any amounts in dispute shall be withheld until resolution. Section 5. Personnel. All persons performing the services under this Agreement shall have all the necessary technical expertise, permits, professional licenses, certificates, training, and other qualifications required by this Agreement or other applicable laws. Contractor shall provide City with said permits, licenses, and certificates at the request of City. At any time, and for any reason or for no reason, City may request that Contractor replace any of Contractor's personnel. Section 6. Access. Contractor shall comply with all reasonable access and other restrictions that City may impose. No access to City property for performance of the Services shall be permitted prior to delivery to City of proof of insurance paid and maintained by Contractor. Section 7. Contractor's Duties and Representations. Contractor represents, covenants and agrees as follows: (a) There are no obligations, commitments, or impediments of any kind that will limit or prevent performance of the Services. (b) Contractor presently has no interest and shall not have any interest, direct or indirect, which would conflict in any manner with the performance of the Services contemplated by this Agreement. No person having any such interest shall be employed by or be associated with Contractor. (c) There is no litigation pending against Contractor and Contractor is not the subject of any criminal investigation or proceeding, and neither Contractor nor its personnel, to its actual knowledge, have been convicted of a felony. Section 8. Independent Contractor. (a) Contractor is and shall at all times remain, as to City, a wholly independent contractor. The personnel performing the Services under this Agreement on behalf of Contractor shall at all times be under Contractor's exclusive direction and control. Neither City nor any of its officers, officials, employees, agents, or volunteers shall have control over the conduct of Contractor or any of Contractor's officers, employees, or agents except as set forth in this Agreement. Contractor shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, officials, employees, agents, or volunteers of City. Contractor shall not incur or have the power to incur any debt, obligation or liability whatsoever against City, or bind City in any manner. (b) No employee benefits shall be available to Contractor or its officers, employees, or agents in connection with the,performance of this Agreement. Except for Consideration paid to Contractor as provided in the Agreement, City shall not pay salaries, wages, or other compensation to Contractor for performing services hereunder for the City. City shall not be liable for compensation or indemnification to Contractor or its officers, employees, or agents for injury or sickness arising out of performing services hereunder. Section 9. Termination. (a) Termination Right. Either Party may, at any time, for any reason or for no reason, with or without cause, terminate this Agreement, by serving'upon the other Party at least fifteen (15) days prior written notice. Upon receipt of such notice, Contractor shall immediately cease all work under this Agreement, unless the notice provides otherwise. (b) Payment Upon Termination. In the event this Agreement is terminated without cause pursuant to this section, City shall pay Contractor for completed net collections in accordance with Exhibit B. Contractor shall submit an invoice to City as required under this Agreement along with a full accounting of outstanding Accounts Receivable at Contractor's expense within thirty (30) days after the termination of this Agreement. Contractor shall have no other claim against City by reason of such termination, including any claim for compensation. (c) Actions Subsequent to Termination. In the event of termination of this Agreement, and at Contractor's expense, Contractor shall deliver all Confidential Information, as defined in Section 11 below, to City within thirty (30) days after the termination of this Agreement. Contractor shall also take all such other action as City reasonably requires and shall cooperate with City to effectuate an orderly and systematic termination of Contractor's 4 duties and activities hereunder. Contractor shall continue to perform billing services until the termination date, if requested in writing by City. (d) All of the terms and conditions in the Agreement related to payment, confidentiality, indemnification, dispute resolution and waiver shall survive termination of this Agreement. Section 10. Limitation of City's Liability. City's liability on any kind of claim for any loss or damage arising out of, in connection with, or resulting from this Agreement, shall in no case exceed the amount that would be paid to Contractor for the full performance of the services required by this Agreement. In no event shall City be liable for anticipated profits or for incidental, consequential or punitive damages. City shall not be liable for penalties of any description. Section 11. Confidential Status; Disclosure of Information. (a) Confidential Status; Disclosure of Information. All Source Documents as defined in Exhibit'A, data, floor plans, designs, maps, surveys, drawings, models, reports, logs; documents, materials or other information developed or created by Contractor, received by Contractor, or provided to Contractor for the performance of this Agreement ("Confidential Information") are deemed confidential and shall not be disclosed by Contractor to any third party without City's prior written consent. City shall grant consent if disclosure is legally required. All Confidential Information shall be returned to City upon the termination of this Agreement. Contractor's covenant under this section shall survive the termination of this Agreement. City may disclose to third parties any Confidential Information at its sole discretion. (b) Contractor's obligation not to disclose any Confidential Information shall not extend to information that: i. was in the possession of, or was rightfully known by, the Contractor without an obligation to maintain its confidentiality prior to receipt from City; ii. is or becomes generally known to the public without violation of this Agreement; iii. is obtained without an obligation of confidentiality by the Contractor in good faith from a third party having the right to disclose it without an obligation of confidentiality; or iv. information which is required to be disclosed pursuant to any court order or directive having the force of law. (c) The provisions of this section shall survive the termination of this Agreement. Section 12. Default. Contractor's failure to comply with the provisions of this Agreement.or of the HIPAA Agreement shall constitute a default. In the event that Contractor is in default under the terms of this Agreement or under the terms of the HIPAA Agreement, City shall have no obligation or duty to continue compensating Contractor for any work performed after the date of default. and can terminate this Agreement and the HIPAA Agreement immediately by written notice to Contractor. R1 Section 13. Indemnification. Contractor agrees to defend, indemnify, protect and hold harmless City, its officers, official's, employees, agents, and volunteers from and against any and all claims, suits, demands, actions, losses, damages, judgments, settlements, penalties, fines, defensive costs or expenses, including without limitation, interest, attorneys' fees and expert witness fees, or liability of any kind or nature arising out of or attributable to the acts or omissions of Contractor, or Contractor's officers, employees, or agents which in any way arise out of, result from, or are in any way related to the performance or non-performance of this Agreement, excepting only liability arising out of the sole negligence or willful misconduct of City, its officers, officials, employees, agents, or volunteers. THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT. Section 14. Insurance. (a) Contractor shall at all times during the term of this Agreement carry, maintain, and keep in full force and effect, a policy or policies of Comprehensive General Liability Insurance, with minimum limits of Two Million Dollars ($2,000,000) for each occurrence, combined single limit, against any personal injury, death, loss or damage resulting from the wrongful or negligent acts by Contractor or Contractor's officers, employees, or agents. (b) Contractor shall at all times during the term of this Agreement carry, maintain, and keep in full force and effect, a policy or policies of Comprehensive Vehicle Liability insurance covering personal injury and property damage, with minimum limits of One Million Dollars ($1,000,000) per occurrence, combined single limit, covering any vehicle utilized by Contractor in performing the services required by this Agreement. (c) Contractor shall at all times during the term of this Agreement carry, maintain, and keep in full force and effect, a policy or policies of Professional Liability Insurance, with minimum limits of One Million Dollars ($1,000,000) on a claims made basis, to protect the City from any losses sustained through any errors or omissions committed by Contractor or Contractor's officers, employees, or agents. Further, Contractor agrees to maintain in full force and effect such insurance for one year after performance of work under this Agreement is completed. (d) Contractor agrees to maintain in force at all times during the performance of work under this Agreement workers compensation as required by law. (e) The policy or policies required by this Agreement shall be issued by an insurer admitted in the State of California and with a rating of at least a B+; VII in the latest edition of Best's Insurance Guide. (f) Contractor shall require each of its subconsultants or sub -contractors to maintain insurance coverage which that meets all of the requirements of this Agreement. (g) Contractor agrees that if it does not keep the aforesaid insurance in full force and effect City may either immediately terminate this Agreement or, if insurance is available at a reasonable cost, City may take out the necessary insurance and pay, at Contractor's expense, the premium thereon. on (h) At all times during the term of.this Agreement, Contractor shall maintain on file with the Risk Manager, a certificate or certificates of insurance, satisfactory to the City Attorney and Risk Manager, showing that the aforesaid policies are in effect in the required amounts. Contractor shall, prior to commencement of work under this Agreement, file with the Risk Manager, such certificate or certificates. The policies of insurance required by this Agreement shall contain an endorsement naming the City as additional insured; provided, however, an endorsement naming the City as, an additional insured is not required for the Professional Liability Insurance policy. All of the policies required under this Agreement shall contain an endorsement providing that the policies cannot be canceled or reduced except on thirty (30) days prior written notice to City, and specifically stating that the coverage contained in the policies affords insurance pursuant to the terms and conditions as set forth in this Agreement. (i) The insurance provided by Contractor shall be primary to any coverage available to City, and any insurance or self-insurance maintained by City, its officers, employees, agents, or volunteers shall be excess of Contractor's insurance and shall not contribute with it. The policies of insurance required by this Agreement shall include provisions for waiver of subrogation. Contractor hereby waives all rights of subrogation against City. Q) Any deductibles or self -insured retentions must be declared to and approved by City. At the option of City, Contractor shall either reduce or eliminate the deductibles or self -insured retentions with respect to City, or Contractor shall procure a bond guaranteeing payment of losses and expenses. Section 15. Assignment and Subcontracting. Contractor shall not assign or attempt to assign any portion of this Agreement, or subcontract any required performance hereunder, without the prior written approval of City. Any assignment or subcontract made in violation of this section is invalid and void. Section 16. Arbitration and Venue. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of,this Agreement to arbitrate, shall be determined by arbitration in Los Angeles, California, before three arbitrators. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. All decisions of the arbitrators shall be in writing, and the arbitrators shall provide written reasons for their decision. The arbitration decision shall be final and binding on/the Parties. Judgment on the award may be entered in any court having jurisdiction pursuant to this Agreement. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court having jurisdiction pursuant to this Agreement. The exclusive jurisdiction and venue under this Agreement shall be the Superior Court of California, Los Angeles County. Section 17. Attorneys Fees. In the event a dispute, claim or litigation arises regarding this Agreement, the prevailing party shall be entitled to reimbursement for reasonable attorneys fees and actual costs, which may be set by the arbitrators or the court in the same action or in a separate action brought for that purpose, in addition to any other relief which is obtained. Section 18. Governing Law. This Agreement shall be interpreted and enforced according to, and the Parties rights and obligations governed by, the domestic law of the State of California, without regard to its laws regarding choice of applicable law. 7 Section 19. Entire Agreement and Modifications. This Agreement, including attachments incorporated herein by reference, and the HIPAA Agreement entered into by the Parties on or about the Effective Date of this Agreement, represents the entire agreement and understanding between City and Contractor, and any negotiation, proposals or oral agreements are intended to be integrated herein and to be superseded by these Agreements. This Agreement may only be modified by a writing signed by both Parties. Section 20. Waiver. The waiver by either party of a breach or default by the other party shall not be deemed a waiver of any different or later breach whether of the same or other covenant or condition; nor shall any delay or omission by either party to exercise any right it may have hereunder operate as a waiver of any breach or default of such a right. The failure of either party to this Agreement to exercise any of its rights under this Agreement does'not constitute a breach thereof and shall not be deemed to be a waiver of such rights or a waiver of any subsequent breach. No waiver, benefit, privilege, or service voluntarily given or performed by a party shall give the other party any contractual rights by custom, estoppel, or otherwise. Section 21. Force Maieure. Neither party shall be considered in default of any of its obligations under this Agreement when a failure of performance shall. be due to an uncontrollable force. The term "uncontrollable force" shall mean flood, earthquake, storm, fire, lightning, epidemic, war, riot, civil disturbance or disobedience, federal, state, or municipal action, statute, ordinance, or regulation, embargoes of the United States Government or any other government, which by exercise of due diligence such party could not reasonably have been expected to avoid ands exercise of due diligence has been unable to overcome. Either party rendered unable to fulfill any of its obligations under this Agreement by reason of an uncontrollable force shall give written notice within five (5) business days of such fact to the other party and shall exercise due diligence to remove such inability with all reasonable dispatch. Section 22. City Not Obligated to Third Parties. City shall not be obligated or liable under this Agreement to any party other than Contractor. Section 23. Notices. All notices, approvals, consents and other communications between the parties shall be in writing, and shall be sent by certified mail (return receipt requested) or other delivery service which provides evidence of delivery, using the address set forth on the Cover Page under "Notice Information - City" or "Notice Information — Vendor," as appropriate, or at such other address as may be furnished by either party to the other in writing. Mailed notices will be deemed communicated as of the day of receipt. Section 24. Cover Page and Exhibits. The Cover Page and all documents referenced as exhibits in this Agreement are hereby incorporated in this Agreement. In the event of any material discrepancy between the express provisions of this Agreement and the provisions of any document incorporated herein by reference, the provisions of this Agreement shall prevail. Section 25. Headings. Headings used in this Agreement are for convenience reference only and shall not affect the interpretation of the Agreement. Section 26. Survival of Terms. All of the terms and conditions in this Agreement related to payment, confidentiality, indemnification, dispute resolution and waiver shall survive termination of this Agreement. N. Section 27. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be valid under applicable law. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force and effect, and shall in no way be affected, impaired or invalidated. Section 28. ' Authority To Execute This Agreement. The person or persons executing this Agreement on behalf of Contractor warrants and represents that he or she has the authority to execute this Agreement on behalf of Contractor and has the authority to bind Contractor to the performance of its obligations under this Agreement. [Signatures Begin on Next Page]. M IN WITNESS WHEREOF, the parties have signed this Agreement as of the date stated in the introductory clause. City of Vernon, a California charter City and California municipal corporation 0 Mayor / Mayor Pro-Tem ATTEST: WILLARD YAMAGUCHI, City Clerk APPROVED AS TO FORM: LAURENCE S. WIENER, City Attorney Wittman Enterprises, LLC, a California limited liability company By: Name: Title: By: Name: Title: 10 EXHIBIT A SCOPE OF SERVICES General Terms City understands, agrees to, and accepts that Contractor has no responsibility or obligation for determining the accuracy of any claims made to governmental agencies, and that Contractor relies on City for making any such claims on documentation. All services provided pursuant to this Agreement shall be subject to the terms and conditions of the HIPAA Agreement. If there is any conflict between the provisions of this Agreement and the provisions of the HIPAA Agreement, the HIPAA Agreement will control. Notwithstanding Section 8 of this Agreement, City designates Contractor as its representative for the limited purpose of performing the services described in this Exhibit A. City and Contractor agree that the intermediaries for Medicare and Medi-Cal may accept claims prepared and submitted by Contractor on behalf of City only so long as this Agreement remains in effect. II. Services A. Contractor will perform the following work pursuant to this Agreement, and as more fully set forth in II.B-H below: 1. ' Screen, prepare, and submit claims to any and all payors including but not necessarily limited to individual persons, Medicare intermediaries, insurance carriers, companies, government and quasi -government agencies and any other source of pay for ambulance; 2. Track and trace all claims submitted; 3. Resubmit or otherwise resolve denied or disallowed claims; 4. Retain all source documents for 72 months; 5. Provide adequate precautions to protect confidentiality of patient records in accordance with applicable state law; - 6. Timely submit claims, predicated upon normal working conditions and subject to adjustment at any time in the event of any cause or causes beyond the Contractor's control; and 7. Conduct all contact and correspondence with beneficiaries or responsible parties. B. Private Billing Contractor shall prepare all invoices and follow-up mailings. Initial invoicing with both English and Spanish instructions shall be on 8X11 billings and shall be placed in envelopes, sealed and mailed, postage prepaid. Initial invoicing by Contractor shall occur within three (3) days of Contractor's receipt of transport tickets. Contractor shall provide a toll free 800 telephone number at no additional cost for use by patients to contact Contractor, such number shall be listed by Contractor on all billings, invoices, statements and letters. An initial telephone call shall be made by Contractor at the time of invoicing to elicit any insurance information from the 11 patient or patient's family. If Contractor receives no answer on this initial telephone call, Contractor shall send an inquiry letter in addition to the initial invoice. Contractor shall perform in accordance with the standard bill schedule. The standard bill schedule is as follows: Private Bill Schedule 1. Invoice Immediately 2. Statement 30 days 3. Past Due 20 days 4. Final Demand 10 days C. Medicare, Medi-Cal, Medi-Medi Contractor shall prepare all applicable Medicare, Medi-Cal and Medi-Medi invoices and electronically convey them to Medicare and Medi-Cal fiscal intermediaries. Contractor shall transfer all secondary and coinsurance billing to the appropriate secondary pay source and promptly bill to that source. D. Workers' Compensation and Private Insurance Contractor shall bill private insurance, supplemental insurance, secondary insurance and Workers' Compensation ("Insurance Companies") according to the specific requirements of those Insurance Companies. Electronic billing of Insurance Companies shall be performed where appropriate. Contractor shall prepare and send any correspondence necessary to secure insurance payments by Insurance Companies, including without limitation, for additional information or follow-up. E. Delinquent Claim Handling Contractor shall contact by telephone all patients with claims aging over 45 days to coordinate payment arrangements. Telephone follow up by Contractor shall continue until payment in full is received or account is dismissed by City to an outside collection agency. Contractor shall utilize installment billing as allowed by City in cases of financial hardship. F. Receipts Processing Contractor will receive direct payment, and shall post and deposit cash receipts within one (1) day of receipt to bank and account number in accordance with written instructions of City. Bank deposit receipt shall be faxed to the attention of the City's Finance Director on the same calendar day as deposit is made. Contractor shall have no access to the proceeds of the receipts. All funds shall be under the exclusive control of City. G. Reports Within ten (10) days of the end of each calendar month, Contractor shall perform accurate month -end close procedures that will result in the following reports: 12 Monthly Ticket Survey Monthly Sales Journal Monthly Cash Receipts Journal Monthly Receivables Aging Management Accounts Receivable Analysis Statistical Reports customized to City's needs H. Records and Inspections Contractor shall maintain full and accurate records with respect to all matters covered under this Agreement for Records Retention Period specified on Cover Page, including without limitation, Source Documents. City shall have access, without charge, during normal business hours to such records, and the right to examine and audit the same and to make copies and transcripts therefrom, and to inspect all program data, documents, proceedings and activities. Source Documents shall mean any and all documents (including attachments) and information provided by City or any other person or entity to Contractor, or prepared by Contractor, in any way related to the performance of Services under this Agreement, regardless of the format in which the documents or information is prepared or retained. III. City's Responsibilities A. City shall submit necessary transport information, including pay source information and patient condition, to Contractor for billing purposes. B. City shall forward to Contractor all necessary information relating to patient transport services, payments and patient eligibility, including any relevant correspondence from fiscal intermediaries, insurance, attorneys, and patients that may be necessary for Contractor to properly follow-up on outstanding billings. C. City shall notify Contractor of any accounts that require special attention. D. City shall obtain signature of patient or guardian on trip ticket, or inform Contractor why signature cannot be obtained. E. City shall provide patient's Social Security Number. IV. Performance Monitoring. Contractor agrees to allow the City, or any agent or consultant deemed qualified by the City, to monitor, audit, review, examine, or study the methods, procedures and results of the billing and collections methods used by Contractor. V. Continuation During Dispute Notwithstanding the existence of any dispute between the Parties, insofar as possible under the term of this Agreement, each party will continue to perform the obligations required of it during the continuation of any such disputes, unless enjoined or prohibited by any court or unless Agreement is terminated pursuant to the Agreement. 13 EXHIBIT B CONTRACTOR'S FEE AND EXPENSES 1. Contractor's Fee. As compensation for providing the Services, Contractor shall receive Seven and a half percent (7.5 %) of the monthly net collections ("Contractor's Fee"). 2. Net Collections. The term "net collections" means the total amount collected from any individual persons, Medicare intermediaries, insurance carriers, companies, Insurance Companies, government and quasi -government agencies or any other source of payment for ambulance services, minus any refunds that may be made to those entities in such instances where multiple entities provided the City or Contractor with funds for the same services. 3. Expenses. Contractor shall, not be reimbursed for any out-of-pocket expenses under this Agreement. 4. Finance Charge. Any non -disputed Contractor Fees that are not paid within forty-five (45) days following receipt by the City of an invoice prepared and sent pursuant to Section 4 of this Agreement itemizing those Contractor Fees, shall be subject to a monthly interest charge of one and one-half percent (1.5 %). 14 EXHIBIT B HIPAA BUSINESS ASSOCIATE AGREEMENT This Agreement ("Agreement") is made and entered into as of 2010 ("Effective Date"), by and between Wittman Enterprises, LLC, a limited liability company ("Business Associate" or "Contractor") and the City of Vernon, a California charter City and California municipal corporation ("Covered Entity" or "City"). RECITALS WHEREAS, Business Associate performs functions, activities, or services for, -,or on behalf of Covered Entity, and Business Associate receives, has access to, or creates Health Information in order to perform such functions, activities or services; WHEREAS, Covered Entity is subject to the Administrative Simplification requirements of the Health Insurance Portability and, Accountability Act of 1996 and regulations promulgated there under ("HIPAA"), including but not limited to; the Standards for Privacy of Individually Identifiable Health Information, 45 Code of Federal Regulations Parts 160 and 164; and WHEREAS, HIPAA requires Covered Entity to enter into a contract with Business Associate to provide for the protection of the privacy and security of Health Information, and HIPAA prohibits the disclosure to or use of Health Information by Business Associate if such a contract is not in place. AGREEMENT NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows: ARTICLE 1 DEFINITIONS 1.1 "Breach" means any unauthorized access, acquisition, use or disclosure of PHI which compromises the security or privacy of that information. 1.2 "Disclose" and "Disclosure" mean, with respect to Health Information, the release, transfer, provision of access to, or divulging in any other manner of Health Information outside Business Associate's internal operations or to other than its employees. 1.3 "Electronic Protected Health Information - e-PHI" means any information that (a) relates to the past, present or future physical or mental health or condition of an individual; the provision of health care to an individual, or the past, present or future payment for the provision of health care to an individual; (b) identifies the individual (or for which there is a reasonable basis for believing that the information can be used to -1- identify the individual); and (c) is received by Business Associate from or on behalf of Covered Entity, or is created by Business Associate, or is made accessible to Business Associate by Covered Entity that is held in an electronic format. 1.4 "Identifying Information" means any information that may be used, alone or in conjunction with any other information to identify a specific. person. 1.5 "Identity Theft" means a fraud committed or attempted using the identifying information of another person without authority. 1.6 "Protected Health Information - PHI" means information that (a) relates to the past, present or future physical or mental health or condition of an individual; the provision of health care to an individual, or the past, present or future payment for the provision of health care to an individual; (b) identifies the individual (or for which there is a reasonable basis for believing that the information can be used to identify the individual); and (c) is received by Business Associate from or on behalf of Covered Entity, or is created by Business Associate, or is made accessible to Business Associate by Covered Entity. 1.7 "Privacy Regulations" means the Standards for Privacy of Individually Identifiable Health Information, 45 Code of Federal Regulations Parts 160 and 164, promulgated under HIPAA. 1.8 "Red Flag" means a pattern, practice, or specific activity that indicates the possible existence of identity theft. 1.9 "Red Flag Rules" means the Identity Theft Red Flag Rules promulgated under the Fair and Accurate Credit Transactions Act of 2003 ("Red Flag Rules") found at 16 C.F.R. Part 681. 1.10 "Security Rules" means the requirements of the Security Regulations promulgated under the Health Insurance Portability and Accountability Act of 1996 (Security Rule) found at 45 CPR Part 164. 1.11 "Services" means the services provided by Business Associate pursuant to the Underlying Agreement, . 1.12 "Underlying Agreement" means the service agreement executed by the Covered Entity and Business Associate, if any, entered into on or about the Effective Date of this Agreement. 1.13 "Use" or "Uses" mean, with respect to Health Infformation, the sharing, employment, application, utilization, examination, or analysis of such Health Information within Business Associate's internal operations. -2- ARTICLE 2 OBLIGATIONS OF BUSINESS ASSOCIATE 2.1 Initial Effective Date of Performance. The obligations created under this Agreement shall become effective in accordance with Section 5.10. 2.2 Permitted Uses and Disclosures of Health Information. Business Associate is authorized to and shall: (a) Use and Disclose Health Information as necessary to perform Services for, or on behalf of Covered Entity in accordance with Underlying Agreement; (b) Use Health Information to create aggregated or de -identified information (in accordance with the requirements of the Privacy Regulations); (c) Use or Disclose Health Information (including aggregated or de - identified information) as otherwise directed by Covered Entity provided that Covered Entity shall not request Business Associate to Use or Disclose Health Information in a manner that would not be permissible if done by Covered Entity. Business Associate shall not Use Health Information for any other purpose, except that if necessary, Business Associate may Use Health Information for the proper management and administration of Business Associate or to carry out its legal responsibilities; provided that any Use or Disclosure described herein- will not violate the Privacy Regulations or California law if done by Covered Entity. Except as otherwise limited in this Agreement, Business Associate may Disclose Health Information for the proper management and administration of the Business Associate, provided that with respect to any such Disclosure either (a) the Disclosure is required by law (within the meaning of the Privacy Regulations) or (b) the Disclosure would not otherwise violate California law and Business Associate obtains reasonable written assurances from the person to whom the information is to be Disclosed that such person will hold the information in confidence and will not Use or further Disclose such information except as required by law or for the purpose(s) for which it was Disclosed by Business Associate to such person, and that such person will notify Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached. Business Associate agrees to a patient's right to an accounting of all disclosures from an electronic health record (EHR). Business Associate agrees to a patient' s right to request restrictions on the use of PHI when the service is paid for out of pocket and a request is made not to bill their health insurance. Business Associate agrees to a patient's right to obtain their PHI in an electronic format if it is stored in that manner. 2.3 Adequate Safeguards for Health Information. Business Associate warrants that it shall implement and maintain appropriate safeguards to prevent the Use or Disclosure of Health Information in any manner other than as permitted by this Agreement. (a) Business Associate agrees to implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, -3- integrity, and availability of PHI and e-PHI if any that it creates, receives, maintains, or transmits on behalf of the Covered Entity. (b) Business Associate will ensure that any agent, including a subcontractor, to whom it provides PHI or e-PHI that was created, received, maintained, or transmitted on behalf of the Covered Entity, agrees to implement reasonable and appropriate safeguards to protect the confidentiality, security, and integrity of PHI and e- PHI. (c) Business Associate agrees to alert the Covered Entity of any security incident (as defined by HIPAA Security Rule) of which it becomes aware and the steps it has taken to mitigate any potential security compromise that may have occurred and to provide a report to the Covered Entity of any loss of data or other information system' compromise as a result of the incident. 2.4 Miti ation. Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a Use or Disclosure of Health Information by Business Associate in violation of the requirements of this Agreement. 2.5 Reporting Non -Permitted Use or Disclosure. Business Associate shall report to Covered Entity each Use or Disclosure that is made by Business Associate, its employees, representatives, agents or subcontractors that is not specifically permitted by this Agreement of which Business Associate becomes aware. The initial report shall be made by telephone call to the Covered Entity within fort -eight (48) hours from the time the Business Associate becomes aware of the non -permitted Use or Disclosure, followed by a written report to covered Entity no later than five (5) days from the date the Business Associate becomes aware of the non -permitted Use or Disclosure. Business Associate has the obligation to report any non compliance of HIPAA by the Covered Entity. 2.6 Availability of Internal Practices, Books and Records: Business Associate agrees to make its internal practices, books and records relating to the Use and Disclosure of Health Information available to the Secretary of the U.S. Department of Health and Human Services ("Secretary ), for purposes of determining Covered Entity's compliance with the Privacy Regulations. 2.7 Access to and Amendment of Health Information. Business Associate shall, to the extent Covered Entity determines that any Health Information constitutes a "designated record set" under the Privacy Regulations, (a) make the Health -Information specified by Covered Entity available to Covered Entity or to the individual(s) identified by Covered Entity as being entitled to access and copy that Health Information, and (b) make any amendments to Health Information that are requested by Covered Entity. Business Associate shall provide such access and make such amendments within the time and in the manner specified by Covered Entity. 2.8 Accounting of Disclosures. Upon Covered Entity's request, Business Associate shall provide to Covered Entity an accounting of each Disclosure of Health in Information made by Business Associate or its employees, agents, representatives or subcontractors as required by the Privacy Regulations. For each Disclosure that requires an accounting under this Section 2.8, Business Associate shall track the information required by the Privacy Regulations, and shall securely maintain the information for six (6) years from the date of the Disclosure. 2.9 Use of Subcontractors and Aizents. Business Associate shall require each of its agents and subcontractors that receive Health Information from Business Associate to execute a written agreement obligating the agent or subcontractor to comply with all the terms of this Agreement with respect to such Health Information. 2.10 Notification of Breach. As required by the American Recovery and Reinvestment Act of 2009; Title XII of the ARRA; Health information Technology for Economic and Clinical Health Act Subtitle D sections 13400 - 13424, Business Associate agrees to notify Covered Entity when a breach of PHI is discovered. Business Associate shall provide this required notification without unreasonable delay and in no event later than 60 calendar days after discovery of the breach. The notification shall include, to the extent possible, the identification of each individual whose unsecured protected health information has been, or is reasonably believed by Business Associate to have been, accessed, used or disclosed during the breach. [45 C.F.R. § 164.410] 2.11 "Red Flajz Rules". As required by the Identity Theft Red Flag Rules promulgated under the Fair and Accurate Credit Transactions Act of 2003 ("Red Flag Rules) found at 16 C. F. R Part 681, the Business Associate agrees to the following: (a) Develop an identity theft program that identifies Red Flags included in the Services that Business Associate provides to Covered Entity. (b) Detect the occurrence of such Red Flags while performing Services for Covered Entity. (c) Respond appropriately to the occurrence of any Red Flags that are detected to prevent and mitigate Identity Theft. (d) Notify Covered Entity of the detection of an occurrence of any Red Flags. ARTICLE 3 OBLIGATIONS OF COVERED ENTITY 3.1 Privacy Notice. Covered Entity shall notify Business Associate of any limitation(s) in Covered Entity's notice of privacy practices to the extent such (imitation(s) may affect Business Associate's Use or Disclosure of Health Information. or fax. 3.2 Security. All PHI sent in an electronic format will be sent secured email -5- 3.3 Notification of Breach. Covered Entity agrees to provide notification as required by law, including 45 C.F.R. § 164.404 { Notice to Individuals) ; § 164.406 [Notice to the Media) and §164.408 {Notice to the Secretary of Health & Human Services) without unreasonable delay and in no event later than 60 calendar days after discovery of a breach of PHI. ARTICLE 4 TERM AND TERMINATION 4.1 Term. Section 1 ("Term and Time of Performance"), Section 9 ("Termination"), and Section 12 ("Default") of the Underlying Agreement are hereby made a part of this Agreement and incorporated by this reference. 4.2 Disposition of Health Information Upon Termination or Expiration. Upon termination or expiration of this Agreement, Business Associate shall either return or destroy, in Covered Entity's sole discretion and in accordance with any instructions by Covered Entity, all Health Information in the possession or control of Business Associate and its agents and subcontractors. In such event, Business Associate shall retain no copies of such Health Information. However, if the Business Associate determines that neither return nor destruction of Health Information is feasible, Business Associate shall notify Covered Entity of the conditions that make return or destruction infeasible, and may retain Health Information provided that Business Associate (a) continues to comply with the provisions of this Agreement for as long as it retains Health Information, and (b) further limits Uses and Disclosures of Health Information to those purposes that make the return or destruction of Health Information infeasible. Business Associate's obligations under this Section 4.2 shall survive the termination or expiration of this Agreement. ARTICLE 5 MISCELLANEOUS 5.1 Indemnification. Section 13 ("Indemnification") of the Underlying Agreement is hereby made a part of this Agreement and incorporated by this reference. 5.2 Amendment to Comply with Law. The parties acknowledge that state and federal laws relating to electronic data security and privacy are rapidly evolving and that amendment of this Agreement may be required to provide for procedures to ensure compliance with such developments. The parties specifically agree to take such action as is necessary to implement the standards and requirements of HIP AA and other applicable laws relating to the security or confidentiality of Health Information. The parties understand and agree that Covered Entity must receive satisfactory written assurance from Business Associate that Business Associate will adequately safeguard all Health Information that it receives or creates on behalf of Covered Entity. Upon Covered Entity's request, Business Associate agrees to promptly enter into negotiations with Covered Entity, concerning the terms of any amendment to this Agreement embodying written assurances consistent with the standards and requirements of HIPAA or other applicable laws. M 5.3 Relationship to Underlying Agreement Provisions. This Agreement and the Underlying Agreement entered into by the Parties on or about the Effective Date of this Agreement, represents the entire agreement and understanding between City and Contractor, and any negotiation, proposals or oral agreements are intended to be integrated herein and to be superseded by these Agreements. Entire Agreement and Modifications. If there is any conflict between the provisions of this Agreement and the provisions of the Underlying Agreement, this Agreement shall control. Otherwise, this Agreement shall be construed under, and in accordance with, the terms of such Underlying Agreement. Section 7 "Contractor's Duties and Representations," Section 8 "Independent Contractor," Section 10 "Limitation of City's Liability," Section 12 "Default," Section 14 "Insurance," Section 15 "Assignment and Subcontracting," Section 16 "Arbitration and Venue," Section 17 "Attorneys Fees," Section 18 "Governing Law," Section 19 "Entire Agreement and Modifications, Section 20 "Waiver," Section 21 "Force Majeure," Section 22 "City Not Obligated to Third Parties," Section 23 "Notices," Section 24 "Cover Page and Exhibits," Section 25 "Headings," Section 26 "Survival of Terms," Section 27 "Severability," and Section 28 "Authority to Execute This Agreement" of the Underlying Agreement are hereby made a part of this Agreement and incorporated by this reference. 5.4 Modification of Agreement. No alteration, amendment, or modification of the terms of this Agreement shall be valid or.effective unless in writing and signed by Business Associate and Covered Entity. 5.5 Interpretation. Any ambiguity in this Agreement shall be resolved to permit Covered Entity to comply with the Privacy Regulations. [Signatures Begin Next Page] -7- IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date stated above. COVERED ENTITY BUSINESS ASSOCIATE City of Vernon, a California charter City Wittman Enterprises, LLC, a California and California municipal corporation limited liability company By: By: Name: Mayor / Mayor Pro-Tem Title: ATTEST: By: Name: WILLARD YAMAGUCHI, City Clerk Title: APPROVED AS TO FORM: LAURENCE S. WIENER, City Attorney 4C 0—b q-4, OFFICE OF THE CITY CLERK 4305 Santa Fe Avenue, Vernon, California 90058 Telephone (323) 583-8811 August 25, 2010 Ms. Corinne Wittman -Wong, CEO Wittman Enterprises, LLC 21 Blue Sky Court, Suite A Sacramento, CA 95828 Re: Ambulance Billing Services and HIPPA Business Associate Agreements Dear Ms. Wittman -Wong: The insurance requirements have been met. Transmitted herewith is one each original of the above -referenced fully executed agreements, approved by City Council on August 16, 2010, through Resolution No. 2010-118. If you have any questions regarding this matter, please call Mr. Mark Whitworth at 323/583- 8811 ext. 280. Ve truly yours, WILLARD G. Y M G I City Clerk WGY:dj Enclosures c: Mark Whitworth Purchasing Department Resolution No. 2010-118 Agreement File No. 10-058 E ,c(usively Industriaf SERVICES AGREEMENT BETWEEN THE CITY OF VERNON AND WITTMAN ENTERPRISES, LLC FOR AMBULANCE BILLING SERVICES COVER PAGE Contractor: Responsible Principal of Contractor: Notice Information - Contractor: With a Copy to: Notice Information - City: Commencement Date: Termination Date: Consideration: Records Retention Period: Wittman Enterprises, LLC Corinne Wittman -Wong, CEO Wittman Enterprises, LLC 21 Blue Sky Court Suite A Sacramento, CA 95828 Attention: Corinne Wittman -Wong, CEO Phone:(916) 669-4608 Facsimile: (916) 471-5108 Jon Riese, Esq. Signature Law Group 3400 Bradshaw Road, Suite A-4A Sacramento, California 95827 Phone: (916 )290-7616. Facsimile: ( ) City of Vernon 4305 Santa Fe Avenue Vernon, CA 90058 Attention: Mark Whitworth City Administrator Telephone: (323) 583-8811 Facsimile: (323) 826-1422 Effective Date, as defined in the introductory clause of this Agreement January 31, 2011, unless extended pursuant to Section 1 Seven and a half percent (7.5 %) of the monthly net collections as more particularly described in Exhibit B Six (6) years SERVICES AGREEMENT BETWEEN THE CITY OF VERNON AND WITTMAN ENTERPRISES, LLC FOR AMBULANCE BILLING SERVICES THIS AGREEMENT is made and entered into as of August 16 , 2010 ("Effective Date"), by and between the City of Vernon, a California charter City and California municipal corporation ("City"), and Wittman Enterprises, LLC, a California limited liability company ("Contractor"). City and Contractor are collectively referred to herein as the "Parties." RECITALS A. City desires to have certain ambulance billing services provided as more fully set forth in the Scope of Services; attached hereto and incorporated herein as Exhibit A. B. Contractor represents it is qualified and capable of furnishing the labor, materials, and expertise necessary to perform such services in accordance with the terms and conditions set forth in this Agreement. C. Concurrently with entering into this Agreement the Parties are also entering into the HIPAA Business Associate Agreement ("HIPAA Agreement"). NOW, THEREFORE, the parties agree as follows: Section 1. Term and Time of Performance. (a) This Agreement shall commence upon the Commencement Date listed on the Cover Page, and shall remain and continue in effect through the Termination Date listed on the Cover Page, unless sooner terminated pursuant to the provisions of this Agreement. City may renew this Agreement on a year-to-year basis at its discretion. Any services performed prior to the Effective Date listed above shall for all purposes be deemed to have been performed pursuant to this Agreement, subject to the terms and conditions hereof. (b) In the event that City renews this Agreement, Contractor may submit a proposal to increase its rates no later than thirty (30) days after receiving notice of City's intent to renew. Any increase in rates must be approved by City before such increase can take effect. If City fails to approve the proposed increase within thirty (30) days of receipt, Contractor may terminate the renewal by giving thirty (30) days written notice. Section 2. Performance. (a) Contractor shall perform the services and tasks described and set forth in the Scope of Services, Exhibit A ("Services").. Additional services must be mutually agreed upon in writing signed by both Parties prior to performance of those additional services. (b) Contractor shall at all times faithfully, competently and to the best of its ability, experience, and talent, perform all Services under this Agreement in accordance with the standard of care and skill ordinarily exercised by members of the profession currently practicing in the same locality under similar circumstances and in a manner reasonably satisfactory to City. 2 (c) Contractor shall keep itself informed of all local, state, and federal ordinances, laws and regulations which in any manner affect those employed by it or in any way affect the performance of its Services pursuant to this Agreement. Contractor shall at all times observe and comply with all such ordinances, laws and regulations. City, and its officers, officials, employees, agents or volunteers shall not be liable at law or in equity occasioned by failure of Contractor to comply with this paragraph. (d) Contractor will not be compensated for any work performed not specified in Exhibit A unless City authorizes such work in advance and in writing. Section 3. Compensation. (a) City agrees to compensate Contractor, and Contractor agrees to accept in full satisfaction for the services required by this Agreement, the Contractor's Fee and expense reimbursement set forth in Exhibit B ("Contractor's Fee and Expenses"). The Contractor's Fee and Expenses shall constitute reimbursement of Contractor's fee for the services as well as the actual cost of any equipment, materials, and supplies necessary to provide the services (including without limitation, all labor, materials, delivery, tax, assembly,. and installation, as applicable). (b) Contractor shall be entitled to reimbursement only for those expenses expressly set forth in Exhibit B. Any expenses incurred by Contractor that are not expressly authorized by this Agreement will not be reimbursed by City. Section 4. Method of Payment. (a) Invoices. Contractor shall submit invoices monthly for services and expenses. Invoices shall include the month for which the services were provided, the dates of such services, and a description of the services provided for that billing period. Each invoice shall include copies of supporting documents as City may require. (b) Payments by City. Payments of each invoice shall be made by City within thirty (30) days following receipt of each invoice as to all non -disputed fees. If City disputes any of Contractor's fees, it shall give written notice to Contractor within thirty (30) days of receipt of the disputed invoice. Any amounts in dispute shall be withheld until resolution. Section 5. Personnel. All persons performing the services under this Agreement shall have all the necessary technical expertise,. permits, professional licenses, certificates, training, and other qualifications required by this Agreement or other applicable laws. Contractor shall provide City with said permits, licenses, and certificates at the request of City. At any time, and for any reason or for no reason, City may request that Contractor replace any of Contractor's personnel. Section 6. Access. Contractor shall comply with all reasonable access and other restrictions that City may impose. No access to City property for performance of the Services shall be permitted prior to delivery to City of proof of insurance paid and maintained by Contractor. Section 7. Contractor's Duties and Representations. Contractor represents, covenants and agrees as follows: (a) There are no obligations, commitments, or impediments of any kind that will limit or prevent performance of the Services. (b) Contractor presently has no interest and shall not have any interest, direct or indirect, which would conflict in any manner with the performance of the Services contemplated by this Agreement. No person having any such interest shall be employed by or be associated with Contractor. (c) There is no litigation pending against Contractor and Contractor is not the subject of any criminal investigation or proceeding, and neither Contractor nor its personnel, to its actual knowledge, have been convicted of a felony. Section 8. Independent Contractor. (a) Contractor is and shall at all times remain, as to City, a wholly independent contractor. The personnel performing the. Services under this Agreement on behalf of Contractor shall at all times be under Contractor's exclusive direction and control. Neither City nor any of its officers, officials, employees, agents, or volunteers shall have control over the conduct of Contractor or any of Contractor's officers, employees, or agents except as set forth in this Agreement. Contractor shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, officials, employees, agents, or volunteers of City. Contractor shall not incur or have the power to incur any debt, obligation or liability whatsoever against City, or bind City in any manner. (b) No employee benefits shall be available to Contractor or its officers, employees, or agents in connection with the performance of this Agreement. Except for Consideration paid to Contractor as provided in the Agreement, City shall not pay salaries, wages, or other compensation to Contractor for performing services hereunder for the City. City shall not be liable for compensation or indemnification to Contractor or its officers, employees, or agents for injury or sickness arising out of performing services hereunder. Section 9. Termination. (a) Termination Right. Either Party may, at any time, for any reason or for no reason, with or without cause, terminate this Agreement, by serving upon the other Party at least fifteen (15) days prior written notice. Upon receipt of such notice, Contractor shall immediately cease all work under this Agreement, unless the notice provides otherwise. (b) Payment Upon Termination. In the event this Agreement is terminated without cause pursuant to this section, City shall pay Contractor for completed net collections in accordance with Exhibit B. Contractor shall submit an invoice to City as required under this Agreement along with a full accounting of outstanding Accounts Receivable at Contractor's expense within thirty (30) days after the termination of this Agreement. Contractor shall have no other claim against City by reason of such termination, including any claim for compensation. (c) Actions Subsequent to Termination. In the event of termination of this Agreement, and at Contractor's expense, Contractor shall deliver all Confidential Information, as defined in Section 11 below, to City within thirty (30) days after the termination of this Agreement. Contractor shall also take all such other action as City reasonably requires and shall cooperate with City to effectuate an orderly and systematic termination of Contractor's El duties and activities hereunder. Contractor shall continue to perform billing services until the termination date, if requested in writing by City. (d) All of the terms and conditions in the Agreement related to payment, confidentiality, indemnification, dispute resolution and waiver shall survive termination of this Agreement. Section 10. Limitation of City's Liability. City's liability on any kind of claim for any Toss or damage arising out of, in connection with, or resulting from this Agreement, shall in no case exceed the amount that would be paid to Contractor for the full performance of the services required by this Agreement. In no event shall City be liable for anticipated profits or for incidental, consequential or punitive damages. City shall not be liable for penalties of any description. Section 11. Confidential Status; Disclosure of Information. (a) Confidential Status; Disclosure of Information. All Source Documents as defined in Exhibit A, data, floor plans, designs, maps, surveys, drawings, models, reports, logs, documents, materials or other information developed or created by Contractor, received by Contractor, or provided to Contractor for the performance of this Agreement ("Confidential Information") are deemed confidential and shall not be disclosed by Contractor to any third party without City's prior written consent. City shall grant consent if disclosure is legally required. All Confidential Information shall be returned to City upon the termination of this Agreement. Contractor's covenant under this section shall survive the termination of this Agreement. City may disclose to third parties any Confidential Information at its sole discretion. (b) Contractor's obligation not to disclose any Confidential Information shall not extend to information that: i. was in the possession of, or was rightfully known by, the Contractor without an obligation to maintain its confidentiality prior to receipt from City; ii. is or becomes generally known to the public without violation of this Agreement; iii. is obtained without an obligation of confidentiality by the Contractor in good faith from a third party having the right to disclose it without an obligation of confidentiality; or iv. information which is required to be disclosed pursuant to any court order or directive having the force of law. (c) The provisions of this section shall survive the termination of this Agreement. Section 12. Default. Contractor's failure to comply with the provisions of this Agreement.or of the HIPAA Agreement shall constitute a default. In the event that Contractor is in default under the terms of this Agreement or under the terms of the HIPAA Agreement, City shall have no obligation or duty to continue compensating Contractor for any work performed after the date of default and can terminate this Agreement and the HIPAA Agreement immediately by written notice to Contractor. 5 Section 13. Indemnification. Contractor agrees to defend, indemnify, protect and hold harmless City, its officers, officials, employees, agents, and volunteers from and against any and all claims, suits, demands, actions, losses, damages, judgments, settlements, penalties, fines, defensive costs or expenses, including without limitation, interest, attorneys' fees and expert witness. fees, or liability of any kind or nature arising out of or attributable to the acts or omissions of Contractor, or Contractor's officers, employees, or agents which in any way arise out of, result from, or are in any way related to the performance or non-performance of this Agreement, excepting only liability arising out of the sole negligence or willful misconduct of. City, its officers, officials, employees; agents, or volunteers. THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT. Section 14. Insurance. (a) Contractor shall at all times during the term of this Agreement carry, maintain, and keep in full force and effect, a policy or policies of Comprehensive General Liability Insurance, with minimum limits of Two Million Dollars ($2,000,000) for each occurrence, combined single limit, against any personal injury, death, loss or damage resulting from the wrongful or negligent acts by Contractor or Contractor's officers, employees, or agents. (b) Contractor shall at all times.during the term of this Agreement carry, maintain, and keep in full force and effect, a policy or policies of Comprehensive Vehicle Liability insurance covering personal injury and property damage, with minimum limits of One Million Dollars ($1,000,000) per occurrence, combined single limit, covering any vehicle utilized by Contractor in performing the services required by this Agreement. (c) Contractor shall at all times during the term of this Agreement carry, maintain, and keep in full force and effect, a policy or policies of Professional Liability Insurance, with minimum limits of One Million Dollars ($1,000,000) on a claims made basis, to protect the City from any losses sustained through any errors or omissions committed by Contractor or Contractor's officers, employees, or agents. Further, Contractor agrees to maintain in full force and effect such insurance for one year after performance of work under this Agreement is completed. (d) Contractor agrees to maintain in force at all times during the performance of work under this Agreement workers compensation as required by law. (e) The policy or policies required by this Agreement shall be issued by an insurer admitted in the State of California and with a rating of at least a B+; VII in the latest edition of Besf's Insurance Guide. (f) Contractor shall require each of its subconsultants or sub -contractors to maintain insurance coverage which that meets all of the requirements of this Agreement. (g) Contractor agrees that if it does not keep the aforesaid insurance in full force and effect City may either immediately terminate this Agreement or, if insurance is available at a reasonable cost, City may take out the necessary insurance and pay, at Contractor's expense, the premium thereon. Con (h) At all times during the term of.this Agreement, Contractor shall maintain on file with the Risk Manager, a certificate or certificates of insurance, satisfactory to the City Attorney and Risk Manager, showing that the aforesaid policies are in effect in the required amounts. Contractor shall, prior to commencement of work under this Agreement, file with the Risk Manager, such certificate or certificates. The policies of insurance required by this Agreement shall contain an endorsement naming the City as additional insured; provided, however, an endorsement naming the City as an additional insured is not required for the Professional Liability Insurance policy. All of the policies required under this Agreement shall contain an endorsement providing that the policies cannot be canceled or reduced except on thirty (30) days prior written notice to City, and specifically stating that the coverage contained in the policies affords insurance pursuant to the terms and conditions as set forth in this Agreement. (i) The insurance provided by Contractor shall be primary to any coverage available to City, and any insurance or self-insurance maintained by City, its officers, employees, agents, or volunteers shall be excess of Contractor's insurance and shall not contribute with it. The policies of insurance required by this Agreement shall include provisions for waiver of subrogation. Contractor hereby waives all rights of subrogation against City. 0) Any deductibles or self -insured retentions must be declared to and approved by City. At the option of City, Contractor shall either reduce or eliminate the deductibles or self -insured retentions with respect to City, or Contractor shall procure a bond guaranteeing payment of losses and expenses. Section 15. Assignment and Subcontracting. Contractor shall not assign or attempt to assign any portion of this Agreement, or subcontract any required performance hereunder,. without the prior written approval of City. Any assignment or subcontract made in violation of this section is invalid and void. Section 16. Arbitration and Venue. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration in Los Angeles, California, before three arbitrators. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. All decisions of the arbitrators shall be in writing, and the arbitrators shall provide written reasons for their decision. The arbitration decision shall be final and binding on the Parties. Judgment on the award may be entered in any court having jurisdiction pursuant to this Agreement. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court having jurisdiction pursuant to this Agreement. The exclusive jurisdiction and venue under this Agreement shall be the Superior Court of California, Los Angeles County. Section 17. Attorneys Fees. In the event a dispute, claim or litigation arises regarding this Agreement, the prevailing party shall be entitled to reimbursement for reasonable attorneys fees and actual costs, which may be set by the arbitrators or the court in the same action or in a separate action brought for that purpose, in addition to any other relief which is obtained. Section 18. Governing Law. This Agreement shall be interpreted and enforced according to, and the Parties rights and obligations governed by, the domestic law of the State of California, without regard to its laws regarding choice of applicable law. 111 Section 19. Entire Agreement and Modifications. This Agreement, including attachments incorporated herein by reference, and the HIPAA Agreement entered into by the Parties on or about the Effective Date of this Agreement, represents the entire agreement and understanding between City and Contractor, and any negotiation, proposals or oral agreements are intended to be integrated herein and to be superseded by these Agreements. This Agreement may only be modified by a writing signed by both Parties. Section 20. Waiver. The waiver by either party of a breach or default by the other party shall not be deemed a waiver of any different or later breach whether of the same -or other covenant or condition; nor shall any delay or omission by either party to exercise any right it may have hereunder operate as a waiver of any breach or default of such a right.. The failure of either party to this Agreement to exercise any of its rights under this Agreement does not constitute a breach thereof and shall not be deemed to be a waiver of such rights or a waiver of any subsequent breach. No waiver, benefit, privilege, or service voluntarily given or performed by a party shall give the .other party any contractual rights by custom, estoppel, or otherwise. Section 21. Force Maieure. Neither party shall be considered in default of any of its obligations under this Agreement when a failure of performance shall .be due to an uncontrollable force. The term "uncontrollable force" shall mean flood, earthquake, storm, fire, lightning, epidemic, war, riot, civil disturbance or disobedience, federal, state, or municipal action, statute, ordinance, or regulation, embargoes of the United States Government or any other government, which by exercise of due diligence such party could not reasonably have been expected to avoid and by exercise of due diligence has been unable to overcome. Either party rendered unable to fulfill any of its obligations under this Agreement by reason of an uncontrollable force shall give written notice within five (5) business days of such fact to the other party and shall exercise due diligence to remove such inability with all reasonable dispatch. Section 22. City Not Obligated to Third Parties. City shall not be obligated or liable under this Agreement to any party other than Contractor. Section 23. Notices. All notices, approvals, consents and other communications between the parties shall be in writing, and shall be sent by certified mail (return receipt requested) or other delivery service which provides evidence of delivery, using the address set forth on the Cover Page under "Notice Information - City' or "Notice Information —Vendor," as appropriate, or at such other address as may be furnished by either party to the other in writing. Mailed notices will be deemed communicated as of the day of receipt. Section 24. Cover Page and Exhibits. The Cover Page and all documents referenced as exhibits in this Agreement are hereby incorporated in this Agreement. In the event of any material discrepancy between the express provisions of this Agreement and the provisions of any document incorporated herein by reference, the provisions of this Agreement shall prevail. Section 25. Headings. Headings used in this Agreement are for convenience reference only and shall not affect the interpretation of the Agreement. Section 26. Survival of Terms. All of the terms and conditions in this Agreement related to payment, confidentiality, indemnification, dispute resolution and waiver shall survive termination of this Agreement. 8 Section 27. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be valid under applicable law. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force and effect, and shall in no way be affected, impaired or invalidated. Section 28. ' Authority To Execute This Agreement. The person or persons executing this Agreement on behalf of Contractor warrants and represents that he or.she has the authority to execute this Agreement on behalf of Contractor and has the authority to bind Contractor to the performance of its obligations under this Agreement. [Signatures Begin on Next Page]. M IN WITNESS WHEREOF, the parties have signed this Agreement as of the date stated in the introductory clause. City of Vernon, a California charter City Wittman Enterprises, LLC, a California limited and California municipal corporation liability company BG 4if ayovl r / Mayor Pro --rem Name: Title: APPROVED AS TO FORM: �ffil � _ u Name: Title: 10 EXHIBIT A EXHIBIT A SCOPE OF SERVICES General Terms City understands, agrees to, and accepts that Contractor has no responsibility or obligation for determining the accuracy of any claims made to governmental agencies, and that Contractor relies on City for making any such claims on documentation. All services provided pursuant to this Agreement shall be subject to the terms and conditions of the HIPAA Agreement. If there is any conflict between the provisions of this Agreement and the provisions of the HIPAA Agreement, the HIPAA Agreement will control. Notwithstanding Section 8 of this Agreement, City designates Contractor as its representative for the limited purpose of performing the services described in this Exhibit A. City and Contractor agree that the intermediaries for Medicare and Medi-Cal may accept claims prepared and submitted by Contractor on behalf of City only so long as this Agreement remains in effect. II. Services A. Contractor will perform the following work pursuant to this Agreement, and as more fully set forth in II.B-H below: 1. Screen, prepare, and submit claims to any and all payors including but not necessarily limited to individual persons, Medicare intermediaries, insurance carriers, companies, government and quasi -government agencies and any other source of pay for ambulance; 2. Track and trace all claims submitted; 3. Resubmit or otherwise resolve denied or disallowed claims; 4. Retain all source documents for 72 months; 5. Provide adequate precautions to protect confidentiality of patient records in accordance with applicable state law; 6. Timely submit claims, predicated upon normal working conditions and subject to adjustment at any time in the event of any cause or causes beyond the Contractor's control; and 7. Conduct all contact and correspondence with beneficiaries or responsible parties. B. Private Billing Contractor shall prepare all invoices and follow-up mailings. Initial invoicing with both English and Spanish instructions shall be on 8X11 billings and shall be placed in envelopes, sealed and mailed, postage prepaid. Initial invoicing by Contractor shall occur within three (3) days of Contractor's receipt of transport tickets. Contractor shall provide a toll free 800 telephone number at no additional cost for use by patients to contact Contractor, such number shall be listed by Contractor on all billings, invoices, statements and letters. An initial telephone call shall be made by Contractor at the time of invoicing to elicit any insurance information from the 11 patient or patient's family. If Contractor receives no answer on this initial telephone call, Contractor shall send an inquiry letter in addition to the initial invoice. Contractor shall perform in accordance with the standard bill schedule. The standard bill schedule is as follows: Private Bill Schedule 1. Invoice Immediately 2. Statement 30 days 3. Past Due 20 days 4. Final Demand 10 days C. Medicare, Medi-Cal, Medi-Medi Contractor shall prepare all applicable Medicare, Medi-Cal and Medi-Medi invoices and electronically convey them to Medicare and Medi-Cal fiscal intermediaries. Contractor shall transfer all secondary and coinsurance billing to the appropriate secondary pay source and promptly bill to that source. D. Workers' Compensation and Private Insurance Contractor shall bill private insurance, supplemental insurance, secondary insurance and Workers' Compensation ("Insurance Companies") according to the specific requirements of those Insurance Companies. Electronic billing of Insurance Companies shall be performed where appropriate. Contractor shall prepare and send any correspondence necessary to secure insurance payments by Insurance Companies, including without limitation, for additional information or follow-up. E.' Delinquent Claim Handling Contractor shall contact by telephone all patients with claims aging over 45 days to coordinate payment arrangements. Telephone follow up by Contractor shall continue until payment in full is received or account is dismissed by City to an outside collection agency. Contractor shall utilize installment billing as allowed by City in cases of financial hardship. F. Receipts Processing Contractor will receive direct payment, and shall post and deposit cash receipts within one (1) . day of receipt to bank and account number in accordance with written instructions of City. Bank deposit receipt shall be faxed to the attention of the City's Finance Director on the same calendar day as deposit is made. Contractor shall have no access to the proceeds of the receipts. All funds shall be under the exclusive control of City. G. Reports Within ten (10) days of the end of each calendar month, Contractor shall perform accurate month -end close procedures that will result in the following reports: 12 Monthly Ticket Survey Monthly Sales Journal Monthly Cash Receipts Journal Monthly Receivables Aging Management Accounts Receivable Analysis Statistical Reports customized to City's needs H. Records and Inspections Contractor shall maintain full and accurate records with respect to all matters covered under this Agreement for Records Retention Period specified on Cover Page, including without limitation, Source Documents. City shall have access, without charge, during normal business hours to such records, and the right to examine and audit the same and to make copies and transcripts therefrom, and to inspect all program data, documents, proceedings and activities. Source Documents shall mean any and all documents (including attachments) and information provided by City or any other person or entity to Contractor, or prepared by Contractor, in any way related to the performance of Services under this Agreement, regardless of the format in which the documents or information is prepared or retained. III. City's Responsibilities A. City shall submit necessary transport information, including pay source information and patient condition, to Contractor for billing purposes. B. City shall forward to Contractor all necessary information relating to patient transport services, payments and patient eligibility, including any relevant correspondence from fiscal intermediaries, insurance, attorneys, and patients that may be necessary for Contractor to properly follow-up on outstanding billings. C. City shall notify Contractor of any accounts that require special attention. D. City shall obtain signature of patient or guardian on trip ticket, or inform Contractor why signature cannot be obtained. E. City shall provide patient's Social Security Number. IV. Performance Monitoring. Contractor agrees to allow the City, or any agent or consultant deemed qualified by the City, to monitor, audit, review, examine, or study the methods, procedures and results of the billing and collections methods used by Contractor. V. Continuation During Dispute Notwithstanding the existence of any dispute between the Parties, insofar as possible under the term of this Agreement, each party will continue to perform the obligations required of it during the continuation of any such disputes, unless enjoined or prohibited by any court or unless Agreement is terminated pursuant to the Agreement. 13 EXHIBIT B EXHIBIT B CONTRACTOR'S FEE AND EXPENSES 1. Contractor's Fee. As compensation for providing the Services, Contractor shall receive Seven and a half percent (7.5 %) of the monthly net collections ("Contractor's Fee"). 2. Net Collections. The term "net collections" means the total amount collected from any individual persons, Medicare intermediaries, insurance carriers, companies, Insurance Companies, government and quasi -government agencies or any other source of payment for ambulance services, minus any refunds that may be made to those entities in such instances where multiple entities provided the City or Contractor with funds for the same services. 3. Expenses. Contractor shall. not be reimbursed for any out-of-pocket expenses under this Agreement. 4. Finance Charge. Any non -disputed Contractor Fees that are not paid within forty-five (45) days following receipt by.the City of an invoice prepared and sent pursuant to Section 4 of this Agreement itemizing those Contractor Fees, shall be subject to a monthly interest charge of one and one-half percent (1.5 %). 14 HIPAA BUSINESS ASSOCIATE AGREEMENT This Agreement ("Agreement") is made and entered into as of August 16 , 2010 ("Effective Date"), by and between Wittman Enterprises, LLC, a limited liability company ("Business Associate" or "Contractor") and the City of Vernon, a California charter City and California municipal corporation ("Covered Entity" or "City"). RECITALS WHEREAS, Business Associate performs functions, activities, or services for, or on behalf of Covered Entity, and Business Associate receives, has access to, or creates Health Information in order to perform such functions, activities or services; WHEREAS, Covered Entity is subject to the Administrative Simplification requirements of the Health Insurance Portability and Accountability Act of 1996 and regulations promulgated there under ("HIPAA"), including but not limited to, the Standards for Privacy of Individually Identifiable Health Information, 45 Code of Federal Regulations Parts 160 and 164; and WHEREAS, HIPAA requires Covered Entity to enter into a contract with Business Associate to provide for the protection of the privacy and security of Health Information, and HIPAA prohibits the disclosure to or use of Health Information by Business Associate if such a contract is not in place. AGREEMENT NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows: ARTICLE 1 DEFINITIONS 1.1 "Breach" means any unauthorized access, acquisition, use or disclosure of PHI which compromises the security or privacy of that information. 1.2 "Disclose" and "Disclosure" mean, with respect to Health Information, the release, transfer, provision of access to, or divulging in any other manner of Health Information outside Business Associate's internal operations or to other than its employees. 1.3 `Electronic Protected Health Information - e-PHI" means any information that (a) relates to the past, present or future physical or mental health or condition of an individual; the provision of health care to an individual, or the past, present or future payment for the provision of health care to an individual; (b) identifies the individual (or for which there is a reasonable basis for believing that the information can be used to -1- identify the individual); and (c) is received by Business Associate from or on behalf of Covered Entity, or is created by Business Associate, or is made accessible to Business Associate by Covered Entity that is held in an electronic format. 1.4 "Identifying Information" means any information that may be used, alone or in conjunction with any other information to identify a specific person. 1.5 "Identity Theft" means a fraud committed or attempted using the identifying information of another person without authority. 1.6 "Protected Health Information - PHI" means information that (a) relates to the past, present or future physical or mental health or condition of an individual; the provision of health care to an individual, or the past, present or future payment for the provision of health care to an individual; (b) identifies the individual (or for which there is a reasonable basis for believing that the information can be used to identify the individual); and (c) is received by Business Associate from or on behalf of Covered Entity, or is created by Business Associate, or is made accessible to Business Associate by Covered Entity. 1.1 "Privacy Regulations" means the Standards for Privacy of Individually Identifiable Health Information, 45 Code of Federal Regulations Parts 160 and 164, promulgated under HIPAA. 1.8 "Red Flag" means a pattern, practice, or specific activity that indicates the possible existence of identity theft. 1.9 "Red Flag Rules" means the Identity Theft Red Flag Rules promulgated under the Fair and Accurate Credit Transactions Act of 2003 ("Red Flag Rules") found at 16 C.F.R. Part 681. 1.10 "Security Rules" means the requirements of the Security Regulations promulgated under the Health Insurance Portability and Accountability Act of 1996 (Security Rule) found at 45 CPR Part 164. 1.11 "Services" means the services provided by Business Associate pursuant to the Underlying Agreement,. .1.12 "Underlying Agreement" means the service agreement executed by the Covered Entity and Business Associate, if any, entered into on or about the Effective Date of this Agreement. 1.13 "Use" or "Uses" mean, with respect to Health Information, the sharing, employment, application, utilization, examination, or analysis of such Health Information within Business Associate's internal operations. -2- ARTICLE 2 OBLIGATIONS OF BUSINESS ASSOCIATE 2.1 Initial. Effective Date of Performance, The obligations created under this Agreement shall become effective in accordance with Section 5.10. 2.2 Permitted Uses and Disclosures of Health Information. Business Associate is authorized to and shall: (a) Use and Disclose Health Information as necessary to perform Services for, or on behalf of Covered Entity in accordance with Underlying Agreement; (b) Use Health Information to create aggregated or de -identified information (in accordance with the requirements of the Privacy Regulations); (c) Use or Disclose Health Information (including aggregated or de - identified information) as otherwise directed by Covered Entity provided that Covered Entity shall not request Business Associate to Use or Disclose Health Information in a manner that would not be permissible if done by Covered Entity. Business Associate shall not Use Health Information for any other purpose, except that if necessary, Business Associate may Use Health Information for the proper management and administration of Business Associate or to carry out its legal responsibilities; provided that any Use or Disclosure described herein -will not violate the Privacy Regulations or California law if done by Covered Entity. Except as otherwise limited in this Agreement, Business Associate may Disclose Health Information for the proper management and administration of the Business Associate, provided that with respect to any such Disclosure either (a) the Disclosure is required by law (within the meaning of the Privacy Regulations) or (b) the Disclosure would not otherwise violate California law and Business Associate obtains reasonable written assurances from the person to whom the information is to be Disclosed that such person will hold the information in confidence and will not Use or further Disclose such information.except as required by law or for the purpose(s)'for which it was Disclosed by Business Associate to such person, and that such person will notify Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached. Business Associate agrees to a patient's right to an accounting of all disclosures from an electronic health record (EHR). Business Associate agrees to a patient' s right to request restrictions on the use of PHI when the service is paid for out of pocket and a request is made not to bill their health insurance. Business Associate agrees to a patient's right to obtain their PHI in an electronic format if it is stored in that manner. 2.3 Adequate Safeguards for Health Information. Business Associate warrants that it shall implement and maintain appropriate safeguards to prevent the Use or Disclosure of Health Information in -any manner other than as permitted by this Agreement. (a) Business Associate agrees to implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, -3- integrity, and availability of PHI and a -PHI if any that it creates, receives, maintains, or transmits on behalf of the Covered Entity. (b) Business Associate will ensure that any agent, including a subcontractor, to whom it provides PHI or e-PHI that was created, received, maintained, or transmitted on behalf of the Covered. Entity, agrees to implement reasonable and appropriate safeguards to protect the confidentiality, security, and integrity of PHI and e- PHI. (c) Business Associate agrees to alert the Covered Entity of any security incident (as defined by HIPAA Security Rule) of which it becomes aware and the steps it has taken to mitigate any potential security compromise that may have occurred and to provide a report to the Covered Entity of any loss of data or other information system compromise as a result of the incident. 2.4 Mitigation. Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a Use or Disclosure of Health Information by Business Associate in violation of the requirements of this Agreement. 2.5 Reporting Non -Permitted Use.or Disclosure, Business Associate shall report to Covered Entity each Use or Disclosure that is made by Business Associate, its employees, representatives, agents or subcontractors that is not specifically permitted by this Agreement of which Business Associate becomes aware. The initial report shall be made by telephone call to the Covered Entity within fort -eight (48) hours from the time the Business Associate becomes aware of the non -permitted Use or Disclosure,. followed by a written report to covered Entity no later than five (5) days from the date the Business Associate becomes aware of the non -permitted Use or Disclosure. Business Associate has the obligation to report any non compliance of HIPAA by the Covered Entity. 2.6 Availability of Internal Practices, Books and Records. Business Associate agrees to make its internal practices, books and records relating to the Use and Disclosure of Health Information available to the Secretary of the U.S. Department of Health and Human Services ("Secretary), for purposes of determining Covered Entity's compliance with the Privacy Regulations. 2.7 Access.to and Amendment of Health Information. Business Associate shall, to the extent Covered Entity determines that any Health Information constitutes a "designated record set" i4nder the Privacy Regulations, (a) make the Health Information specified by Covered Entity available to Covered Entity or to the individual(s) identified by Covered Entity as being entitled to access and copy that Health Information, and (b) make any amendments to Health Information that are requested by Covered Entity. Business Associate shall provide such access and make such amendments within the time and in the manner specified by Covered Entity, 2.8 Accounting of Disclosures. Upon Covered Entity's request, Business Associate shall provide to Covered Entity an accounting of each Disclosure of Health N Information made by Business Associate or its employees, agents, representatives or subcontractors as required by the Privacy Regulations. For each Disclosure that requires an accounting under this Section 2.8, Business Associate shall track the information required by the Privacy Regulations, and shall securely maintain the information for six (6) years from the date of the Disclosure. 2.9 Use of Subcontractors. and Agents. Business Associate shall require each of its agents and subcontractors that receive Health Information from Business Associate to execute a written agreement obligating the agent or subcontractor to comply with all the terms of this Agreement with respect to such Health Information. 2.10 Notification of Breach. As required by the American Recovery and Reinvestment Act of 2009; Title XII of the ARRA; Health information Technology for Economic and Clinical Health Act Subtitle D sections 13400 - 13424, Business Associate agrees to notify Covered Entity when a breach of PHI is discovered. Business Associate shall provide this required notification without unreasonable delay and in no event later than 60 calendar days after discovery of the breach. The notification shall include, to the extent possible, the identification of each individual whose unsecured protected health information has been, or is reasonably believed by Business Associate to have been, accessed, used or disclosed during the breach. [45 C.F.R. §164.410] 2.11 "Red Fla Rules". ules". As required by the Identity Theft Red Flag Rules promulgated under the Fair and Accurate Credit Transactions Act of 2003 ("Red Flag Rules) found at 16 C. F. R Part 681, the Business Associate agrees to the following: (a) Develop an identity theft program that identifies Red Flags included in the Services that Business Associate provides to Covered Entity. (b) Detect the occurrence of such Red Flags while performing Services for Covered Entity. (c) Respond appropriately to the occurrence of any Red Flags that are detected to prevent and mitigate Identity Theft. (d) Notify Covered Entity of the detection of an occurrence of any Red Flags ARTICLE 3 OBLIGATIONS OF COVERED ENTITY 3.1 Privacy Notice. Covered Entity shall notify Business Associate of any limitation(s) in Covered Entity's notice of privacy practices to the extent such (imitation(s) may affect Business Associate's Use or Disclosure of Health Information. 3.2 Security. All PHI sent in an electronic format will be sent secured email or fax. -5- 3.3 Notification of Breach. Covered Entity agrees to provide notification as required by law, including 45 C.F.R. § 164.404 { Notice to Individuals } ; § 164.406 { Notice to the Media} and §164.408 {Notice to the Secretary of Health & Human Services} without unreasonable delay and in no event later than 60 calendar days after discovery of a breach of PHI. ARTICLE 4 TERM AND TERMINATION 4.1 Term. Section 1 ("Term and Time of Performance"), Section 9 ("Termination"), and Section 12 ("Default") of the Underlying Agreement are hereby made a part of this Agreement and incorporated by this reference. 4.2 Disposition of Health Information Upon Termination or Expiration. Upon termination or expiration of this Agreement, Business Associate shall either return or destroy, in Covered Entity's sole discretion and in accordance with any instructions by Covered Entity, all Health Information in the possession or control of Business Associate and its agents and subcontractors. In such event, Business Associate shall retain no copies of such Health Information. However, if the Business Associate determines that neither return nor destruction of Health Information is feasible, Business Associate shall notify Covered Entity of the conditions that make return or destruction infeasible, and may retain Health Information provided that Business Associate (a) continues to comply with the provisions of this Agreement for as long as it retains Health Information, and (b) further limits Uses and Disclosures of Health Information to those purposes that make the return or destruction of Health Information infeasible. Business Associate's obligations under this Section 4.2 shall survive the termination or expiration of this Agreement. ARTICLE 5 MISCELLANEOUS 5.1 Indemnification. Section 13 ("Indemnification") of the Underlying Agreement is hereby made a part of this Agreement.and incorporated by this reference. 5.2 Amendment to Comply with Law. The parties acknowledge that state and federal laws relating to electronic data security and privacy are rapidly evolving and that amendment of this Agreement may be required to provide for procedures to ensure compliance with such developments. The parties specifically agree to take such action as is necessary to implement the standards and requirements of HIP AA and other applicable laws relating to the security or confidentiality of Health Information. The parties understand and agree that Covered Entity must receive satisfactory written assurance from Business Associate that Business Associate will adequately safeguard all Health Information that it receives or creates on behalf of Covered Entity. Upon Covered Entity's request, Business Associate agrees to promptly enter into negotiations with Covered Entity, concerning the terms of any amendment to this Agreement embodying written assurances consistent with the standards and requirements of HIPAA or other applicable laws. Elm 5.3 Relationship to Underlying Agreement Provisions. This Agreement and the Underlying Agreement entered into by the Parties on or about the Effective Date of this Agreement, represents the entire agreement and understanding between City and Contractor, and any negotiation, proposals or oral agreements are intended to be integrated herein and to be superseded by these Agreements. Entire Agreement and Modifications. If there is any conflict between the provisions of this Agreement and the provisions of the Underlying Agreement, this Agreement shall control. Otherwise, this Agreement shall be construed under, and in accordance with, the terms of such Underlying Agreement. Section 7 "Contractor's Duties and Representations," Section 8 "Independent Contractor," Section 10 "Limitation of City's Liability," Section 12 "Default," Section 14 "Insurance," Section 15 "Assignment and Subcontracting," Section. 16 "Arbitration and Venue," Section 17 "Attorneys Fees," Section 18 "Governing Law," Section 19 "Entire Agreement and Modifications," Section 20 "Waiver," Section 21 "Force Majeure," Section 22 "City Not Obligated to Third Parties," Section 23 "Notices," Section 24 "Cover Page and Exhibits," Section 25 "Headings," Section 26 "Survival of Terms," Section 27 "Severability," and Section 28 "Authority to Execute This Agreement" of the Underlying Agreement are hereby made a part of this Agreement and incorporated by this reference. 5.4 Modification of Agreement. No alteration, amendment, or modification of the terms of this Agreement shall be valid or effective unless in writing and signed by Business Associate and Covered Entity. 5.5 Interpretation. Any ambiguity in this Agreement shall be resolved to permit Covered Entity to comply with the Privacy Regulations. [Signatures Begin Next Page] -7- IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date stated above. COVERED ENTITY City of Vernon, a California charter City and California municipal corporation By: Mayor / Mayor Pro-fem. AT EST: WILCARD Clerk APPR D AS TO FORM: LAUR N E S. WIENER, City Attorney BUSINESS ASSOCIATE Wittman Enterprises, LLC, a California limited liabity company e By: Name: Title: By: Name: _ �✓�+ /�� %vr ��► Title: feikS 16e —q"— -8- Page 1 of 2 Juarez, Debbie From: Barcia, Ana Sent: Thursday, August 19, 2010 2:29 PM To: Juarez, Debbie Subject: FW: Insurance Verification Misc. Hi Debbie, Please be advised that Wittman Enterprises has provided acceptable insurance coverage. Have a good day! Ana Barcia City of Vernon Risk Management Department T: 323) 583-8811 ex 286 F: 323) 826-1439 abarci a(&i.vernon. ca.us From: Barcia, Ana Sent: Wednesday; August 18, 2010 12:39 PM To: Juarez, Debbie Subject: RE: Insurance Verification Misc. Hi Debbie, Please see below Ana Barcia City of Vernon Risk Management Department T: 323) 583-8811 ex 286 F: 323) 826-1439 abarcianci.vernon.ca.us From: Juarez, Debbie Sent: Wednesday, August,18, 2010 11:32 AM To: Barcia, Ana Subject: Insurance Verification Misc. Hi Ana. I need to verify that the following contractors have valid insurance on file: Palsons Electrical Res. No. 2010-113- Current insurance on file JM Crew dba Rhino Construction Res. No. 2010-114- Current insurance on file Wittman Enterprises Res. No. 2010-118- No insurance on file, please forward copy of agreement. KJ Services Res. No. 2010-120- Current insurance on file Bowers Ambulance Res. No. 2010-122- Current insurance on file Thank you. 8/19/2010 Deborah Juarez Records Wanagement,4ssistant City of Vernon - City Clerk's Office 4305 Santa (Fe.Avenue Vernon, CA90058 (323) 583-8811 8/19/2010 DECEIVE® JUL 2 7 2010 CITY CLERK'S OFFICE STAFF REPORT Fire Department DATE: July 26, 2010 TO: Honorable Mayor and City Council FROM: Fire Chief Mark Whitworth RE Service Agreement - Ambulanc Billing Services Purpose: Current Vernon Fire Department practice is Bower's Ambulance responds on all emergency medical calls for service in conjunction with Vernon Fire apparatus; they transport patients to nearest receiving center. ..Under certain circumstances Bower's Ambulance is unable to respond in a timely manner, thus possibly compromising patient care. In such circumstances, the Vernon Fire Department transports these individuals and does not receive compensation. In order to recover costs associated with transportation a search was done to find a billing agency that would collect fees for services on our behalf. Los Angeles County Health has specific guidelines as to how much can be charged for patients' transportation. Wittman's 7.5% administrative -fee will be deducted from the maximum transport charge. All funds recovered will be returned, minus a 7.5% administrative fee. Recommendation: The Fire Department is requesting the approval of Service Agreement between the City of Vernon and Wittman Enterprises, LLC for Ambulance Billing Services: Fiscal Impact: Based on current data fiscal impact will be revenue of $20,000 to $30,000 a year. CITY ATTORNEY'S OFFICE MEMORANDUM TO: Willard Yamaguchi, Risk Manager FROM: Diana H. Varat, Assistant City Attorney CC: Laurence S. Wiener, City Attorney Gena M. Stinnett, Assistant City Attorney DATE: February 3, 2010 SUBJECT: Wittman Enterprises, LLC - Approved as to Form The City Attorney's Office has reviewed the Wittman Enterprises, LLC Services Agreement to provide ambulance billing services and the related HIPAA Business Associate Agreement, and has approved them as to form. 12720-0005\1204672v1.doc N� �oo1a g.v,: ;f del SERVICES AGREEMENT BETWEEN THE CITY OF VERNON AND WITTMAN ENTERPRISES, LLC FOR AMBULANCE BILLING SERVICES COVER PAGE Contractor: Wittman Enterprises, LLC Responsible Principal of Contractor: Corinne Wittman -Wong, CEO Notice Information - Contractor: Wittman Enterprises, LLC 21 Blue Sky Court Suite A Sacramento, CA 95828 Attention: Corinne Wittman Wong, CEO Phone: (glto) 9 Facsimile: (916) 471-5108 With a Copy to: Jon Riese, Esq_ Signature. Lave Group 3400 Bradshaw Road, Suite A-4A Sacramento, California 95827 Phone: Lql(o) 2 90 - 7-Ce / U Facsimile: ( ) Notice Information - City: City of Vernon 4305 Santa Fe Avenue Vernon, CA 90058 Attention: Donal O'Callaghan, City Administrator Telephone: (323)'583-8811 ext. 561 Facsimile: (323) 826-1408 Commencement Date: Effective Date, as defined in the introductory clause of this Agreement Termination Date: January 31, 2011, unless extended pursuant to Section 1 Consideration: Seven and a half percent (7.5 %) of the monthly net collections as more particularly described in Exhibit i3 Records Retention Period: Six (6) years 6 12720-0005\ 1198389v4.doc SERVICES AGREEMENT BETWEEN THE CITY OF VERNON AND WITTMAN ENTERPRISES, LLC FOR AMBULANCE . BILLING SERVICES THIS AGREEMENT is made and entered into as of 2010 ("Effective Date"), by and between the City of Vernon, a California charter City and California municipal corporation (`City"), and Wittman Enterprises, LLC, a California limited liability company ("Contractor'). City and Contractor are Collectively referred to herein as the "Parties." RECITALS A. City desires to have certain ambulance billing services provided as more fully set forth in the Scope of Services, attached hereto and incorporated herein as Exhibit A. B: Contractor represents it is qualified and capable of furnishing the labor, materials, and expertise necessary to perform such services in accordance with the terms and conditions set forth in this Agreement. C: Concurrently with entering into this Agreement the Parties are also entering into the HIPAA Business Associate Agreement ("HIPA.A Agreement"): NOW, THEREFORE, the parties agree as follows: Section 1. Term and Time of Performance. (a) This Agreement shall commence upon the Commencement bate listed on the Cover Page, and shall remain and continue in effect through the Termination. Date listed on the Cover Page, unless sooner terminated pursuant to the provisions of this Agreement. City Tay renew this Agreement on a year-to-year basis at its discretion. Any services performed prior to the Effective Date listed above shall for all purposes be deemed to have been performed pursuant to this Agreement, subject to the terms and conditions hereof. (b) In the event that City renews this Agreement, Contractor may submit a Proposal to increase its rates no later than thirty (30) days after receiving notice of City's intent to renew. Any increase in rates must be approved by City before such increase can take effect. If. City fails to approve the proposed increase within .thirty (30) days of receipt, Contractor may terminate the renewal by giving thirty (30) days written notice. Section 2. Performance. (a) Contractor shall perform the services and tasks described and set forth in the Scope of Services, Exhibit A ("Services"). Additional services must be mutually agreed upon in writing signed by both Parties prior to performance of those additional services. (b) Contractor shall at all times faithfully, competently and to the best of its ability, experience, and talent, perform all Services under this Agreement in accordance with the standard of care and skill ordinarily exercised by members of the profession currently practicing in the same locality under similar circumstances and in a manner reasonably satisfactory to City: 2 12720-0005111983890.doc (c) Contractor shall keep itself informed of all local, state, and federal ordinances, laws and regulations which in any manner affect those employed by it or in any way affect the performance of its Services pursuant to this Agreement. Contractor shall at all times observe and comply with all such ordinances, laws and regulations. City, and its officers, officials; employees, agents or volunteers shall not be liable at law or in equity occasioned by failure of Contractor to comply with this paragraph. (d) Contractor will not be compensated for any work performed not specified in Exhibit A unless City authorizes such work in advance and in writing. Section 3. Compensation. (a) City agrees to compensate Contractor, and Contractor agrees to accept in full satisfaction for the services required by this Agreement, the Contractor's Fee and expense reimbursement set forth in Exhibit B ("Contractor's Fee and Expenses"). The Contractor's Fee and Expenses shall constitute reimbursement of Contractor's fee for the services as well as the actual cost of any equipment, materials, and supplies necessary to provide the services (including without limitation, all labor, materials, delivery, tax, assembly, and installation, as applicable). (b) Contractor shall be entitled to reimbursement only for those expenses expressly set forth in Exhibit B. Any expenses incurred by Contractor that are not expressly authorized by this Agreement will not be reimbursed by City. Section 4. Method of Payment. (a) Invoices. Contractor shall submit invoices monthly for services and expenses. Invoices shall include the month for which the services were provided, the dates of such services, and a description of the services provided for that billing period, Each invoice shall include copies of supporting documents as City may require. (b). Payments by City. Payments of each invoice shall be made by City within thirty (30) days following receipt of each invoice as to all non -disputed fees. If City disputes any of Contractor's fees, it shall give written notice to Contractor within thirty (30) days of receipt of the disputed invoice. Any amounts in dispute shall be withheld until resolution: Section 5. Personnel. All persons performing the services under this Agreement shall have all the necessary technical expertise, permits, professional licenses, certificates, training, and other qualifications required by this Agreement or other applicable laws. Contractor shall provide City with said permits, licenses, and certificates at the request of City. At anytime, and for any reason or for no reason, City may request that Contractor replace any of Contractor's personnel: Section 6. Access. Contractor shall comply with all reasonable access and other restrictions that City may impose. No access to City property for performance of the Services shall be permitted prior to delivery to City of proof of insurance paid and maintained by Contractor. Section 7. Contractor's Duties and Representations. Contractor represents, covenants and agrees as follows: 3 12720-0005\1198389v4.doc (a) There are no obligations, commitments; or impediments of any kind that will limit or prevent performance of the Services. (b) Contractor presently has no interest and shall not have any interest, direct or indirect, which would conflict in any manner with the performance of the Services contemplated by this Agreement. No personhaving any such interest shall be employed by or be associated with Contractor: (c) There is no litigation pending against. Contractor and Contractor is not the subject of any criminal investigation or proceeding, and neither Contractor nor its personnel; to its actual knowledge, have been convicted of a felony. Section 8. Independent Contractor. (a) :Contractor is and shall at all times remain, as to City, a wholly independent contractor- The personnel performing the Services under this Agreement on behalf of Contractor shall at all times be under Contractor's exclusive direction and control: Neither City nor any of its officers, officials, employees, agents, or volunteers shall have control over the conduct of Contractor or any of Contractor's officers, employees, or agents except as set forth in this Agreement. Contractor shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, officials, employees; agents, or volunteers of City. Contractor shall not incur or have the power to incur any debt, obligation or liability whatsoever against City, or bind City in any manner: (b) No employee benefits shall be available to Contractor or its officers, employees, or agents in connection with the performance of this Agreement. Except for Consideration paid to Contractor as provided in the Agreement; City shall not pay salaries, wages, or other compensation to Contractor for performing services hereunder for the City. City shall not be, liable for compensation or indemnification to Contractor or its officers,. employees, or agents for injury or sickness arising out of performing services hereunder. Section 9. Termination (a) Termination Right. Either Party may, at any time, for any reason or for no reason, with or without cause, terminate this Agreement, by serving upon the other Party at least fifteen (15) days prior written notice. Upon receipt of such notice, Contractor shall immediately Cease all work under this Agreement, unless the notice provides otherwise. (b) Payment Upon Termination. In the event this Agreement is terminated without cause pursuant to this section, City shall pay Contractor for completed net collections.in accordance with Exhibit B. Contractor shall submit an invoice to City as required under this Agreement along with a full accounting of outstanding Accounts Receivable at Contractor's expense within thirty (30) days after the termination of this Agreement. Contractor shall have no other claim against City by reason of such termination, including any claim for compensation. (c) Actions Subsequent to Termination. In the event of termination of this Agreement, and at Contractor's expense, Contractor shall deliver all Confidential Information, as defined in Section 11 below, to City within thirty (30) days after the termination of this Agreement. Contractor shall also take all such other action as City reasonably requires and shall cooperate with City to effectuate an orderly and systematic termination of Contractor's 12720-0005\1198389v4.doc duties and activities hereunder. Contractor shall continue to perform billing services until the termination date, if requested in writing by City. (d) All of the terms and conditions in the Agreement related to payment, confidentiality, indemnification, dispute resolution and waiver shall survive termination of this Agreement:' Section 10. Limitation of City's Liability. City's liability on any kind of claim for any loss or damage arising out of, in connection with, or resulting from this. Agreement, shall in no case exceed the amount that would be paid to Contractor for the full performance of the services required by this Agreement. In no event shall City be liable for anticipated profits or for incidental, consequential or punitive damages. City shall riot be liable for penalties of any description. Section 11. Confidential Status -Disclosure of Information: (a) Confidential Status; ©isclosure of Information. All Source Documents as defined in Exhibit A,: data, floor plans, designs, maps, surveys; drawings, models, reports, logs, documents, materials or other information developed or created by Contractor, received by Contractor; or provided to Contractor for the performance of this Agreement ("Confidential Information") are deemed confidential and shall not be disclosed by Contractor to any third party without City's prior written consent. City shall grant consent if disclosure is legally required. All Confidential Information shall be returned to City upon the termination of this Agreement: Contractor's covenant under this section shall survive the termination of this Agreement: City may disclose to third parties any Confidential Information at its sole discretion. (b) Contractor's obligation not to disclose any Confidential Information shall not extend to information. that: L was in the possession of, or was rightfully known by, the Contractor without an obligation to, maintain its confidentiality prior to receipt from City; H. is or becomes generally known to the public without violation of this Agreement; iii. is obtained without an obligation of confidentiality by the Contractor in good faith from a third party having the right to disclose it without an obligation of confidentiality; or iv. information which is required to be disclosed pursuant to any court order or directive having the force of law. (c) The provisions of this section shall survive the termination of this Agreement. Section 12. Default. Contractor's failure to co mplywith the provisions of this Agreement or of the HIPAA Agreement shall constitute a default. In the event that Contractor is in default under the terms of this Agreement or under the terms of the HIPAA Agreement, City shall have no obligation or duty to continue compensating Contractor for any work performed after the date of default and can terminate this Agreement and the HIPAA Agreement immediately by written notice to Contractor. S 1.2720-0005i1198389v4.doc Section 13. Indemnification. Contractor agrees to defend, indemnify, protect and hold harmless. City, its officers,. officials, employees, agents; and volunteers from and. against any and all claims, suits, demands, actions, losses, damages, judgments, settlements, penalties, fines,. defensive costs or expenses, including without limitation, interest, attomeys' fees and expert witness fees; or liability of any kind or nature arising out of or attributable to the acts or omissions of Contractor, or Contractor's officers, employees; or agents which in any arise out of, result from, or are in any way related to the performance or non-performance of this Agreement, excepting only liability arising out of the sole negligence or willful misconduct of City, its officers, officials, employees, agents, or volunteers. THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT, Section 14. Insurance. (a) Contractor shall at all times during the term of this Agreement carry, maintain, and keep in full force and effect, a policy or policies of Comprehensive General Liability Insurance, with minimum limits of Two Million Dollars ($2,000,000) for each occurrence, combined single limit, against any personal injury, death, loss or damage resulting from the wrongful or negligent acts by Contractor or Contractor's officers, employees, or agents: (b) Contractor shall at all times during the term of this Agreement carry, maintain, and keep in full force and effect, a policy or policies of Comprehensive Vehicle Liability insurance covering personal injury and property damage, with minimum limits of One Million Dollars ($1,000,000) per occurrence, combined single limit; covering any vehicle utilized by Contractor in performing the services required by this Agreement. (c) Contractor shall at all times during the term of this Agreement carry, maintain., and keep in full force and effect, a policy or policies of Professional Liability Insurance, with minimum limits of One Million Dollars ($1,000,000) on a claims made basis, to protect the City from any losses sustained through any errors or omissions committed by Contractor or Contractor's officers, employees, or agents. Further, Contractor agrees to maintain in full force and effect such insurance for one year after performance of work under this Agreement is completed. , (d) Contractor agrees to maintain in force at all times during the performance of work under this Agreement workers compensation as required by law. (e) The policy or policies required by this Agreement shall be issued by an insurer admitted in the State of California and with a rating of at least a B+; VII in the latest edition of Bests Insurance Guide. (f) Contractor shall require each of its subconsultants or sub -contractors to maintain insurance coverage which that meets all of the requirements of this Agreement. (g) Contractor agrees that if it does not keep the aforesaid insurance in full force and effect City may either immediately terminate this Agreement or, if insurance is available at a reasonable cost; City may take out the necessary insurance and pay, at Contractor's expense, the premium thereon. b 12720-0005\1198389v4.doc (h) At all times during the term of this Agreement, Contractor shall Maintain on file with the Risk Manager, a certificate or certificates of insurance, satisfactory to the City Attorney and Risk Manager, showing that the aforesaid policies are in effect in the required amounts. Contractor shall, prior to commencement of work under this Agreement, file with the Risk Manager, such certificate or certificates. The policies of insurance required by this Agreement shall contain an endorsement naming the City as additional insured; provided, however, an endorsement naming the Cityas.an additional insured is not required for the Professional Liability Insurance policy. All of the policies required under this Agreement shall contain an endorsement providing that the policies cannot be canceled or reduced except on thirty (30) days prior written notice to City, and specifically stating that the coverage contained in the policies affords insurance pursuant to the terms and conditions as set forth in this Agreement. (i) The insurance provided by Contractor shall be primary to any coverage available to City, and any insurance or self-insurance maintained by City, its officers, employees, agents, or volunteers shall be excess of Contractor's insurance and shall not contribute with it. The policies:of insurance required by this Agreement shall include provisions for waiver of subrogation. Contractor hereby waives all rights of subrogation against City. (j) Any deductibles or self -insured retentions must be declared to and approved by City.. At the option of City, Contractor shall either reduce or eliminate the deductibles or self -insured retentions with.respectto City, or Contractor shall procure a bond guaranteeing payment of losses and expenses: Section 15. Assignment and Subcontracting. Contractor shall not assign or attempt to assign any portion of this Agreement, or subcontract any required performance hereunder, without the prior written approval of City. Any assignment or subcontract made in violation of this. section is invalid and void. Section 16. Arbitration and Venue. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement; interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration in Los Angeles, California, before three arbitrators, The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. All decisions of the arbitrators shall be in writing and the arbitrators shall provide written reasons for their decision. The arbitration decision shall be final and binding on the Parties. Judgment on the award may be entered in any court having jurisdiction pursuant to this Agreement. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court having jurisdiction pursuant to this Agreement. The exclusive jurisdiction and venue under this Agreement shall be the Superior Court of California, Los Angeles County. Section 17. Attorneys Fees. In the event a dispute, claim or litigation arises regarding this Agreement, the prevailing party shall be entitled to reimbursement for reasonable attorneys fees and actual costs, which may be set by the arbitrators or the court in the same action or in a separate action brought for that purpose, in addition to any other relief which is obtained. Section 18. Governing Law. This Agreement shall be interpreted and enforced according to, and the Parties rights and obligations governed by, the domestic law of the State of California, without regard to its laws regarding choice of applicable lava. 7 12720-0005\1198389v4.doc Section 19. Entire Agreement and Modifications. This Agreement, including attachments incorporated herein by reference, and the. HIPAA Agreement entered into 'bythe Parties on or about the Effective Date of this Agreement, represents the entire agreement and understanding between City and Contractor, and any negotiation, proposals or oral agreements are intended to be integrated herein and to be superseded by these Agreements. This Agreement may only be modified by a writing signed by both Parties: Section 20. Waiver. The waiver by either party of a breach or default by the other party shall not be deemed a waiver of any different or later breach whether of the same or other covenant or condition; nor shall any delay or omission by either party to exercise any right it may have hereunder operate as a waiver of any breach or default of such a right. The failure of either party to this Agreement to exercise any of its rights under this Agreement does not constitute a breach thereof and shall not be deemed to be a waiverof such rights or a waiver of any subsequent breach. No waiver, benefit, privilege; or service voluntarily given or performed by a party shall give the other party any contractual rights by custom, estoppel, or otherwise. Section 21. Force Maieure. Neither party shall be considered in default of any of its obligations under this Agreement when a failure of performance shall be due to an uncontrollable force. The term "uncontrollable force" shall mean flood, earthquake, storm, fire, lightning, epidemic, war, riot, civil disturbance or disobedience, federal, state, or municipal action, statute, ordinance; or regulation, embargoes of the United States Government or any other government, which by exercise of due diligence such party could not reasonably have been expected to avoid and by exercise of due diligence has been unable to overcome. Either party rendered unable to fulfill any of its obligations under this Agreement by reason of an uncontrollable force shall give written notice within five (5) business days of such fact to the other party and shall exercise due diligence to remove such inability with all reasonable dispatch. Section 22. City Not Obligated to Third Parties. City shall not be obligated or liable under this Agreement to any party other than Contractor. Section 23: Notices. All notices, approvals, consents and other communications between the parties shall be in writing, and shall.be sent by certified mail (return receipt requested) or other delivery service which provides evidence of delivery, using the address set forth on the Cover Page under "Notice Information - City" or "Notice Information - Vendor," as appropriate, or at such other address as may be furnished by either party to the other in writing. Mailed notices will be deemed communicated as of the day of receipt. Section 24. Cover Page and Exhibits. The Cover Page and all documents referenced as exhibits in this Agreement are Hereby incorporated in this Agreement_ In the event of any material discrepancy between the express provisions of this Agreement and the provisions of any document incorporated herein by reference, the provisions of this Agreement shall prevail. Section 25. Headings. Headings used in this Agreement are for convenience reference only and shall not affect the interpretation. of the Agreement. Section 26. Survival of Terms. All of the terms and conditions in this Agreement related to payment, confidentiality, indemnification, dispute resolution and waiver shall survive termination of this Agreement. 8 12720-000511198389v4.doc Section 27. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be valid under applicable law.. If any provision of this Agreement is determined by a court of competentjudsdiction to be invalid, void or unenforceable, the remaining. provisions shall nevertheless continue in full force and effect, and shall in no way be affected, impaired or invalidated. Section 28. Authority To Execute This Agreement. The person or persons executing this Agreement on behalf of Contractor warrants and represents that he or she has the authority to execute this Agreement on behalf of Contractor and has the authority to bind Contractor to the performance of its obligations under this Agreement. [Signatures Begin on Next Page]. 9 12720-0005\ 11. 983 99v4.doc EXHIBIT A SCOPE OF SERVICES .1. General Terms City understands, agrees to, .and accepts that Contractor has no responsibility or obligation for determining the accuracy of any claims made to governmental agencies; and that Contractor relies on City for making any such claims on documentation. All services provided pursuant to this Agreement shall be subject to the terms and conditions of the HIPAA Agreement if there is any conflict between the provisions of this Agreement and the provisions of the HIPAA Agreement, the HIPAA Agreement will control. Notwithstanding. Section 8 of this Agreement, City, designates Contractor as its representative for the limited purpose of performing the services described in this Exhibit A. I City and Contractor agree that the intermediaries for Medicare and Medi-Cal may accept claims prepared and submitted.by. Contractor on behalf of City only so long as this Agreement remains in effect_ 11. Services A. Contractor will perform the following work pursuant to this Agreement, and as more fully set forth in 11.B-H below: 1. Screen, prepare, and submit claims to any and all payors including but not necessarily limited to individual persons, Medicare intermediaries, insurance carriers, companies, government and quasi -government agencies and any other source of pay for ambulance; 2. Track and trace all claims submitted; 3. Resubmit or otherwise resolve denied or disallowed claims; 4. Retain all source documents for 72 months; 5. Provide adequate precautions to protect confidentiality of patient records in accordance with applicable state law; 6. Timely submit claims, predicated upon normal working conditions and subject to adjustment at any time in the event of any cause or causes beyond the Contractor's control; and %. Conduct all. contact and correspondence with beneficiaries or responsible parties. B. Private Billing Contractor shall prepare all invoices and follow-up mailings. Initial invoicing with both English and Spanish instructions shall be on 8X11 billings and shall be placed in envelopes, sealed and mailed; postage prepaid. Initial invoicing by Contractor shall occur within three (3) days of Contractor's receipt of transport tickets. Contractor shall provide a toll free 800 telephone number at no additional cost for use by patients to contact Contractor, such number shall be listed by Contractor on all billings, invoices, statements and letters. An initial telephone call shall be made by Contractor. at the time of invoicing to elicit any insurance information from the 1I. 12720.0005111983890hoc patient or patient's family. If Contractor receives no answer on this initial telephone call, Contractor shall send an inquiry letter in addition to the initial invoice. Contractor shall perform in accordance with.the standard bill schedule. The standard.bill schedule is as follows: Private Bill Schedule 1, Invoice Immediately 2. Statement 30 days 3. Past Due 20 days 4. Final Demand 10 days C. Medicare, Medi-Cal, Medi-Medi Contractor shall prepare all applicable Medicare; Medi-Cal and Medi-Medi invoices and electronically convey them to Medicare and Medi-Cal fiscal intermediaries. Contractorshall transfer all secondaryand coinsurance billing to the appropriate secondary pay source and promptly bill to that source D. Workers' Compensation and Private Insurance Contractor shall bill private insurance, supplemental insurance, secondary insurance and Workers' Compensation ("Insurance Companies") according to the specific requirements of those Insurance Companies. Electronic billing of Insurance Companies shall be performed where appropriate. Contractor shall prepare and send any correspondence necessary to secure insurance payments by Insurance Companies, including without limitation, for additional information or follow-up. E. Delinquent. Claim Handling Contractor shall contact by telephone all patients with claims aging over 45 days to coordinate payment arrangements. Telephone follow up by Contractor shall continue until payment in full is received or account is dismissed by City to an outside collection agency. Contractor shall utilize installment billing as allowed by City in cases of financial hardship. i=. Receipts Processing Contractor will receive direct payment, and shall post and deposit cash receipts within one (1) day of receipt to bank and account number in accordance with written instructions of City. Bank deposit receipt shall be faxed to the attention of the City's Finance Director on the same calendar day as deposit is made_ Contractor shall have no access to the proceeds of the receipts. All funds shall be under the exclusive control of City. G. Reports Within ten (I0) days of the end of. each calendar month, Contractor shall perform accurate month -end close procedures that will result in the following reports: 12 12720-000% I98389v4.doc Monthly Ticket Survey Monthly Sales Journal Monthly Cash Receipts Journal Monthly Receivables Aging Management Accounts Receivable Analysis Statistical Reports customized to City's needs H. Records and Inspections Contractor shall maintain full and accurate records with respect to all matters covered under this Agreement for Records Retention Period specified on Cover Page, including without limitation, Source Documents. City shall have. access, without charge, during normal business hours to such records, and the right to examine and audit the same and to make copies and transcripts therefrom, and to inspect all program data, documents, proceedings and activities. Source Documents shall mean any and all documents (including attachments) and information provided by City or any other person or entity to Contractor, or prepared by Contractor, in any way related to the performance of Services under this Agreement, regardless of the format in which the documents or information is prepared or retained: Ill. City's Responsibilities A. City shall submit necessary transport information, including pay source information and patient condition, to Contractor for billing purposes. B.. City shall forward to Contractor all necessary information relating to patient transport services, payments and patient eligibility, including any relevant correspondence from fiscal intermediaries, insurance, attorneys, and patients that may be necessary for Contractor to properly follow-up. on outstanding billings. C. City shall notify Contractor of any accounts that require special attention. D. City shall obtain signature of patient or guardian on trip ticket, or inform Contractor why signature cannot be obtained: E. City shall provide patient's Social Security Number. IV. Performance Monitoring. Contractor agrees to allow the City, or any agent or consultant deemed qualified by the City, to monitor, audit, review, examine, or study the methods, procedures and results of the billing and collections methods used by Contractor. V. Continuation During Dispute Notwithstanding the existence of any. dispute between the Parties, insofar as possible under the term of this Agreement, each party will continue to perform the obligations required of it during the continuation of any such disputes, unless enjoined or prohibited by any court or unless Agreement is terminated pursuant to the Agreement. 13. 12720-000511198389v4.doc EXHIBIT B CONTRACTOR'S FEE AND EXPENSES 1. Contractor's Fee. As compensation for providing the Services, Contractor shall receive Seven and a half,percent (7.5 %) of the monthly net collections ("Contractor's Fee"). 2. Net Collections. The term: "net collections" means the total amount collected from any individual persons, Medicare intermediaries, insurance carriers, companies, Insurance Companies, government and quasi -government agencies or any other source of payment for ambulance services, minus any refunds that may be made to those entities in such instances where multiple entities provided the City or Contractor with funds for the same services. 3. Expenses: Contractor shall not be.reimbursed for any out-of-pocket expenses - - - - under this Agreement: 4. Finance Charge. Any non -disputed Contractor Fees that are not paid within forty-five (45) days following receipt by the City of an invoice prepared and sent pursuant to Section 4 of this Agreement itemizing those Contractor Fees, shall be subject to a monthly interest charge of one and one-half percent (15 %). V-1 APM . HIPAA BUSYNESS ASSOCIATE AGREEMENT This Agreement ("Agreement") is made and entered into as of 2010 (``Effective Date°'), by and between. Wittman Enterprises; LLC, a limited liability company ("Business Associate.' or "Contractor") and the City of Vernon, a California charter City and California municipal corporation ("Covered Entity'" or "City,") RECITALS WHEREAS, Business Associate performs functions, activities, or services for, or on behalf of Covered Entity; and Business Associate receives, has access to, or creates Health Information in order to perform such functions, activities or services; WHEREAS, Covered Entity is subject to the Administrative Simplification requirements of the Health Insurance Portability and Accountability Act of 1996 and regulations promulgated there under. ("HIPAA"), including but not limited to, the Standards for Privacy of Individually Identifiable Health information, 45 Code of Federal Regulations Parts 160 and 164; and WHEREAS, HIPAA requires Covered Entity to enter into a contract with Business Associate to provide for the protection of the privacy and security of Health Information, and HIPAA. prohibits the disclosure to or use of Health Information by Business Associate if such a contract is not in place. AGREEMENT NOW; THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows: ARTICLE 1 DEFINITIONS I. I "Breach" means any unauthorized access, acquisition, use or disclosure of PHI which compromises the. security or.privaey of that information. 1.2 "Disclose" and "Disclosure" mean, with respect to Health Information, the release, transfer; provision of access to, or divulging in any other manner of Health Information. outside Business Associate's internal operations or to other than its employees. 1.3 Electronic Protected Health Information - e-PHI" means any information that (a) relates to the past, present or future physical or mental health or condition of an individual; the provision of health care to an individual, or the past, present or future payment for the provision of health care to an individual; (b) identifies the individual (or for which there is a reasonable basis for believing that the information can be used to 12720-0005\1199966v3.doc -1- identify the individual); and (c) is received by Business Associate from or on behalf of Covered Entity, or is created by Business Associate; or is made accessible to Business Associate by Covered Entity that is held in an electronic format: 1.4 "Identifying Information" means any information that may be used, alone or in conjunction with any other information to identify a specific person. 1,5 "Identity Theft" means a fraud committed or attempted using the identifying information of another person without authority: 1.6 "Protected Health Information. -PHI" means information that (a) relates to the past, present or future physical or mental health or condition of an individual; the provision of Health care to an individual; or the past, present or future payment for the provision of health care to an individual.; (b) identifies the individual (or for which there is a reasonable basis for believing that the information can be used to identify the individual); and (c). is received by Business Associate from or on behalf of Covered Entity; or is created by Business Associate, or is made accessible to Business Associate by Covered Entity. 1.7 "Privacy Regulations" means the Standards for Privacy of Individually Identifiable Health Information, 45 Code of Federal Regulations Parts 160 and 164; promulgated under HIPAA; "Red Flay means a pattern, practice, oi• specific activity that indicates the possible existence of identity theft 1.9 "Red Flag Rules means the Identity Theft Red Flag Rules promulgated under the Fair and Accurate Credit Transactions Act of 2003 ("Red Flag Rules") found at 1.6 C.F.R. Part 681. 1.10 "Security Rules" means the requirements of the Security Regulations promulgated under the Health Insurance Portability and Accountability Act of 1996 (Security Rule) found at 45 CPR Part 164. 1.1..1 "Services" means the services provided by Business Associate pursuant to the Underlying Agreement, 1.12 "Underlying Agreement" means the service agreement executed by the Covered. Entity and Business Associate, if any, entered into on or about the Effective Date of this. Agreement. 1.13 "Use" or "Uses" mean, with respect to Health Information; the sharing; employment, application; utilization,. examination, or analysis of such Health Information within Business Associate's internal operations. I2720-00,0511.1.99966v3.cioc -2- ARTICLE 2 OBLIGATIONS OF BUSINESS ASSOCIATE 2.1 Initial Effective Date of Performance: The obligations created under this Agreement shall become effective in accordance with Section 5.1.0. 2.2 Permitted Uses and Disclosures of Health Information. Business Associate is authorized to and shall: (a) Use and Disclose Health Information as necessary to perform Services for, or on behalf of Covered,Entity in accordance with Underlying Agreement; (b) Use Health Information to create aggregated or de -identified information (in accordance with the requirements of the Privacy Regulations); (c) Use or Disclose Health Information (including aggregated or de - identified information) as otherwise directed by Covered Entity provided that Covered Entity shall not request Business Associate to Use or Disclose Health Information in a. manner that would not be permissible if done by Covered Entity. Business Associate shall not Use Health Information for any other purpose, except that if necessary, Business Associate may Use Health Information for the proper management and adrninistrati.on of Business Associate or to carry out its legal responsibilities; provided that any Use or Disclosure described herein will not violate the Privacy Regulations or California law if done by Covered Entity. Except as otherwise limited in this Agreement, Business Associate may Disclose Health Information for the proper management and administration of the Business Associate, provided that with respect to any such Disclosure either (a) the Disclosure is required by law (within the meaning of the Privacy Regulations) or (b) the Disclosure would not otherwise violate California law. and Business Associate obtains reasonable written assurances from the person to whom the information is to be Disclosed that such person will hold the information in confidence and will not Use or further Disclose such information except as required by law or for the purpose(s) for which it was Disclosed by Business Associate to such person, and that such person will notify Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached. Business Associate agrees to a patient's right to an accounting of all disclosures from an electronic health record (EHR,). Business Associate agrees to a patient' s right to request restrictions on the use of PHI when the service is. paid for out of pocket and a request is made not to bill their health insurance. Business Associate agrees to a patient's right to obtain their PHI in an electronic format if it is stored in that manner. 2.3 Adequate Safeguards for.Health Information. Business Associate warrants that it shall implement and maintain appropriate safeguards to prevent the Use or Disclosure of Health Information in any manner other than as permitted by this Agreement, (a) Business Associate agrees to implement administrative; physical, and technical safeguards that reasonably and appropriately protect the confidentiality; 12720-000511.199966v3.doc -3 integrity, and availability of PHI and e-PHI if any that it creates, receives,, maintains, or transmits on behalf of the Covered Entity. (b) Business Associate will ensure that any agent, including a subcontractor, to whom it provides PHI or e-PHI that was created, received; maintained, or transmitted on behalf of the Covered Entity, agrees to implement reasonable and appropriate safeguards to protect the confidentiality, security, and integrity of PHI and e- PHI. (c) Business Associate agrees to.alert the Covered Entity of any security incident (as defined by IIIPAA Security Rule) of which it becomes aware and the steps it has taken to mitigate any potential security compromise that may have occurred and to provide a report to the Covered Entity of any loss of data or other information system compromise as a result of the incident. 2.4 Mitigation. Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a Use or Disclosure of Health Information by Business Associate in violation of the requirements of this Agreement. 2.5 Reporting Non -Permitted Use or Disclosure. Business Associate shall report to Covered Entity each Use or Disclosure that is made by Business Associate, its employees representatives, agents or subcontractors that is not specifically permitted by this Agreement of which Business Associate becomes aware. The initial report shall be made by telephone call to the Covered Entity within fort -eight (48) hours from the time the Business. Associate becomes aware of the non -permitted Use or Disclosure, followed by a written report to covered Entity no later than five (5) days from the date the Business Associate becomes aware of the non -permitted Use or Disclosure., Business Associate has the obligation to report any non compliance of HIPAA by the Covered Entity. 2.6 Availability of Internal Practices; Books and Records. Business Associate agrees to make its internal practices, books and records relating to the Use and Disclosure of Health Information available to the Secretary of the U.S. Department of Health and Human Services ("Secretary,), for purposes of determining Covered Entity's compliance with the Privacy Regulations. 2.7 Access to and Amendment of Health Information. Business Associate shall, to the extent Covered Entity determines that any Health Information constitutes a "designated record set" under the Privacy Regulations, (a) snake the HealthInformation specified by Covered Entity available to Covered Entity or to the individual(s) identified by Covered Entity as. being entitled to access and copy that Health Information, and (b) make any amendments to Health Information that are requested by Covered Entity. Business Associate shall provide such access and snake such amendments within the time and in the manner specified by Covered Entity. 2.8 Accounting of Disclosures. Upon Covered Entity's request, Business Associate shall provide to Covered Entity an accounting of each Disclosure of Health 12720-0065\1199966v3.doc 4- Information trade by Business Associate or its employees, agents, representatives or subcontractors as required by the Privacy Regulations. For each Disclosure that requires an accounting under this Section 2.8, Business Associate shall track the information required by the Privacy Regulations, and shall securely maintain the information for six (6j years from the date of the Disclosure. 2.9 Use of Subcontractors and Agents. Business. Associate shall require each of its agents and subcontractors that receive Health Information from Business Associate to execute a written agreement obligating the agent or subcontractor to comply with all the terms of this Agreement with respect to such Health Information. 2.10 Notification. of Breach., As required by the American Recovery and Reinvestment Act of 2009; Title XII of the ARRA; Health information Technology for Economic and Clinical Health Act Subtitle D sections 13400 - 13424, Business Associate agrees to notify Covered Entity when a breach of PHI is discovered. 2.11 "Red Flag Rules"- As required by the Identity Theft Red Flag Rules promulgated under the Fair and Accurate Credit Transactions Act of 2003 ("Red Flag Rules) found at 16 C. F. R PPart 681., the Business Associate agrees to the following: (a) Develop an identity theft program that identifies Red Flags included in the Services that Business Associate provides to. Covered Entity. (b) Detect the occurrence of such Red Flags while performing Services for Covered Entity. (c) Respond appropriately to the occurrence of any Red Flags that are detected to prevent and mitigate Identity Theft. (d) Notify Covered Entity of the detection of an occurrence of any Red Flags. ARTICLE 3 OBLIGATIONS OF COVERED ENTITY 3.1 Privacy Notice. Covered Entity shall notify Business Associate of any limitation(s) in Covered Entity's notice of privacy practices to the extent such (imitation(s) may affect Business Associate's Use or Disclosure of Health Information.. 3.2 Security, All PHI sent in an electronic format will be sent secured email or. fax: — 3.3 Notification of Breach. Covered Entity agrees to notify all parties involved by whatever means necessary in the event there is a breach of PHI. 12720-0005\1 1 999660,doc -5- ARTICLE 4 TERM AND TERMINATION 4.1 Term. Section 1 ("Term and Time of Performance"), Section 9 ("Termination"), and Section 12 ("Default") of the Underlying Agreement are hereby made a part of this Agreement and incorporated by this reference: 4.2 Disposition of Health Information U on Termination or Ex iration. Upon termination or expiration of this. Agreement, :Business Associate shall either return or destroy, in Covered Entity's sole discretion and in accordance with any instructions by Covered Entity, all Health Informationin the possession or control of Business Associate and its agents and subcontractors. In such event, Business Associate shall retain. no copies of such Health Information. However; if the Business Associate determines that .neither return nor destruction of Health Information is feasible, Business Associate shall notify Covered Entity of the conditions that make return or destruction infeasible, and may retain Health Information provided that Business Associate (a) continues to comply with the provisions of this Agreement for as long as it retains Health Information, and (b) further limits Uses and Disclosures of Health Information to those purposes that make the return or destruction of Health Information infeasible. Business Associate's obligations under this Section 4.2 shall survive the termination or expiration of this Agreement. ARTICLE S MISCELLANEOUS 5.1 Indemnification: Section 13 ("indemnification") of the Underlying Agreement is hereby made apart of this Agreement and incorporated by this reference. 5.2 Amendment to Comply with Law. The parties acknowledge that state and federal laws relating to electronic data security and privacy are rapidly evolving and that amendment of this Agreement may be required to provide for procedures to ensure compliance with such developments. The parties specifically agree to take such action as is necessary to implement the standards and requirements of HIP AA and other applicable laws relating to the security or confidentiality of Health Information. The parties understand and agree that Covered Entity must receive satisfactory written assurance from Business Associate that Business Associate will adequately safeguard all Health Information that it receives or creates on behalf of Covered Entity. Upon Covered Entity's request; Business Associate agrees to promptly enter into negotiations with Covered Entity; concerning the terms of any amendment to this Agreement embodying written assurances consistent with the standards and requirements ofHIPAA or other applicable laws. 5.3 Relationship to Underlying Agreement Provisions. This Agreement .and the Underlying Agreement entered into by the Parties on or about the Effective Date of this Agreement, represents the entire agreement and understanding between City and Contractor, and any negotiation, proposals or oral agreements are intended to be integrated herein and to be superseded by these Agreements. Entire Agreement and 12720-0005111999660.doc -6- Modifications. If there is any conflict between the provisions of this Agreement and the provisions of the Underlying Agreement, this Agreement shall control Otherwise; this Agreement shall be construed under, and in accordance with, the terms of such Underlying Agreement Section 7 "Contractor's' Duties and Representations," Section 8 "Independent Contractor," Section 10 "Limitation of City's Liability," Section 12 "Default," Section 1.4 ".Insurance," Section 15 "Assignment and Subcontracting," Section 16 "Arbitration and Venue," Section 17 "Attorneys Fees," Section 18 "Governing Law," Section 19 "Entire Agreement and Modifications," Section 20 "Waiver," Section 21 ".Force Majeure,Section 22 "City Not Obligated to Third. Parties," Section 23 "Notices," Section 24 "Cover Page and Exhibits," Section 25 "Headings," Section 26 "Survival of Terms," Section 27 "Severability"' and Section 28 "Authority to Execute This Agreement" of the Underlying Agreement are hereby made a part of this Agreement and incorporated by this reference. 5.4 Modification of Agreement. No alteration, amendment, or modification of the terms of this Agreement shall be valid or effective unless in writing and signed by Business Associate and Covered Entity. 5.5 Interpretation. Any ambiguity in this Agreement shall be resolved to permit Covered Entity to comply with the Privacy Regulations. IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date stated above. COVERED ENTITY BUSINESS ASSOCIATE City of Vernon, a California charter City Wittman Enterprises, LLC, a California and California municipal corporation limited liability company By: , „ By: Name.e;jf Mayor / Mayor Pro -Tern Title: ATTEST: r Y MANUELA GIRON, City. Clerk Name: ��'r c L LlL-�~ Title: z it 1!192�1'� I/2KY_r• APPROVED AS TO .FORM; LAURENCE S. WIENER, City Attorney 12720-0005U.1999660.doc -7-