HomeMy WebLinkAbout20230347.tiffRESOLUTION
RE: APPROVE STANDARD FORM FOR PROFESSIONAL SERVICE AGREEMENT FOR
OLDER AMERICANS ACT (OAA) PROVIDER SERVICES BETWEEN DEPARTMENT
OF HUMAN SERVICES AND VARIOUS PROVIDERS, AND AUTHORIZE CHAIR TO
SIGN AGREEMENTS CONSISTENT WITH SAID FORM
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, the Board, sitting as the Weld County Board of Human Services, has been
presented with the Standard Form for a Professional Service Agreement for Older Americans Act
(OAA) Provider Services between the Department of Human Services and various providers, and
WHEREAS, after review, the Board deems it advisable to approve the Standard Form of
said agreement, a copy of which is attached hereto and incorporated herein by reference, and to
delegate standing authority to the Chair of the Board of County Commissioners to execute
individual agreements between the Department of Human Services and various providers.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, sitting as the Weld County Board of Human Services, that the Standard Form
for the Professional Service Agreement for Older Americans Act (OAA) Provider Services
between the Department of Human Services and various providers, be, and hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized
to sign agreements consistent with said form.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 1st day of February, A.D., 2023.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
ATTEST: d);,1
Weld County Clerk to the Board
County Att•rney
Date of signature: O2/08'/23
cc:HS D, CTB(EG)
02/10/23
2023-0347
HR0095
PRIVILEGED AND CONFIDENTIAL
MEMORANDUM
DATE: January 24, 2023
TO: Board of County Commissioners — Pass -Around
FR: Jamie Ulrich, Director, Human Services
RE: Professional Services Agreement Template for
Older Americans Act (OAA) Provider Services
Please review and indicate if you would like a work session prior to placing this item on the
Board's agenda.
Request Board Approval of the Department's Professional Services Agreement Template
for Older Americans Act (OAA) Provider Services. The Department would like to utilize the
modified Professional Services Agreement (PSA) to contract with service providers selected
during the Older Americans Act (OAA) Provider Grant Application Funds Request for Proposal
(RFP) process known as B2300042.
The attached PSA template for OAA Provider Services has been approved by Legal (K.
McDougal).
I do not recommend a Work Session. I recommend approval of this Professional Services
Agreement Template for Older Americans Act (OAA) Provider Services.
Approve Schedule
Recommendation Work Session Other/Comments:
Perry L. Buck, Pro-Tem
Mike Freeman, Chair
Scott K. James
Kevin D. Ross
Lori Saine
Pass -Around Memorandum; January 24, 2023 — Not in CMS
Page 1
2023-0347
Z/b
PROFESSIONAL SERVICE AGREEMENT BETWEEN WELD COUNTY AND
THIS AGREEMENT is made and entered into this day of , 2023, by
and between the Board of Weld County Commissioners, on behalf of the Weld County Department
of Human . Services' Area Agency on Aging, hereinafter referred to as "County," and
®NT - °?`C'?sR7 , hereinafter referred to as "Contractor".
WHEREAS, County desires to retain Contractor to perform services as required by County
and set forth in the attached Exhibits; and
WHEREAS, Contractor is willing and has the specific ability, qualifications, and time to
perform the required services according to the terms of this Agreement; and
WHEREAS, Contractor is authorized to do business in the State of Colorado and has the
time, skill, expertise, and experience necessary to provide the services as set forth below.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties hereto agree as follows:
1. Introduction. The terms of this Agreement are contained in the terms recited in this
document and in the attached Exhibits, each of which forms an integral part of this Agreement and
are incorporated herein. The parties each acknowledge and agree that this Agreement, including
the attached Exhibits, define the performance obligations of Contractor and Contractor's
willingness and ability to meet those requirements (the "Work"). If a conflict occurs between this
Agreement and any Exhibit or other attached document, the terms of this Agreement shall control,
and the remaining order of precedence shall be based upon order of attachment.
Exhibit A consists of County's Request for Bid (RFB) or Request for Proposal (RFP) as
set forth in Bid Package No. B2300041 which is incorporated into this agreement by
reference and will be provided upon request to the Department. The RFP contains all of
the specific requirements of the County.
Exhibit B consists of Contractor's Response to County's Request for Proposal. The
response confirms Contractor's obligations under this Agreement.
Exhibit C consist of the Health Insurance Portability and Accountability Act (HIPAA)
Business Associate Agreement.
Exhibit D consists of a modified Scope of Work and Rates based on the actual award
amount.
2. Service or Work. Contractor agrees to procure the materials, equipment and/or
products necessary for the Work and agrees to diligently provide all services, labor, personnel and
materials necessary to perform and complete the Work described in the attached Exhibits.
Contractor shall further be responsible for the timely completion and acknowledges that a failure
to comply with the standards and requirements of Work within the time limits prescribed by
County may result in County's decision to withhold payment or to terminate this Agreement.
3. Term. The term of this Agreement shall be from RAW, through ® unless
sooner terminated as provided herein. Both of the parties to this Agreement understand and agree
that the laws of the State of Colorado prohibit County from entering into Agreements which bind
County for periods longer than one year. This Agreement may be renewed for 3 (three) additional
one-year terms upon mutual written agreement of the Parties.
4. Termination; Breach; Cure. County may terminate this Agreement for its own
convenience upon thirty (30) days written notice to Contractor. Either Party may immediately
terminate this Agreement upon material breach of the other party, however the breaching party
shall have fifteen (15) days after receiving such notice to cure such breach. If this Agreement is
terminated by County, Contractor shall be compensated for, and such compensation shall be
limited to, (1) the sum of the amounts contained in invoices which it has submitted and which have
been approved by the County; (2) the reasonable value to County of the services which Contractor
provided prior to the date of the termination notice, but which had not yet been approved for
payment; and (3) the cost of any work which the County approves in writing which it determines
is needed to accomplish an orderly termination of the work. County shall be entitled to the use of
all material generated pursuant to this Agreement upon termination. Upon termination of this
Agreement by County, Contractor shall have no claim of any kind whatsoever against the County
by reason of such termination or by reason of any act incidental thereto, except for compensation
for work satisfactorily performed and/or materials described herein properly delivered.
5. Extension or Amendment. Any amendments or modifications to this agreement shall be
in writing signed by both parties. No additional services or work performed by Contractor shall be
the basis for additional compensation unless and until Contractor has obtained written
authorization and acknowledgement by County for such additional services. Accordingly, no
claim that the County has been unjustly enriched by any additional services, whether or not there
is in fact any such unjust enrichment, shall be the basis of any increase in the compensation payable
hereunder. In the event that written authorization and acknowledgment by the County for such
additional services is not timely executed and issued in strict accordance with this Agreement,
Contractor's rights with respect to such additional services shall be deemed waived and such
failure shall result in non-payment for such additional services or work performed. Any claims by
the Contractor for adjustment hereunder must be made in writing prior to performance of any work
covered in the anticipated Amendment, unless approved and documented otherwise by the County
Representative. Any change in work made without such prior Change Order shall be deemed
covered in the compensation and time provisions of this Agreement, unless approved and
documented otherwise by the County Representative.
6. Compensation. County agrees to pay Contractor through an invoice process during
the course of this Agreement in accordance with the Rate Schedule as described as Exhibit D.
Contractor agrees to submit invoices which detail the work completed by Contractor. The County
will review each invoice and if it agrees Contractor has completed the invoiced items to the
County's satisfaction, it will remit payment to the Contractor. No payment in excess of that set
forth in the Exhibits will be made by County unless an Amendment authorizing such additional
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payment has been specifically approved by Weld County as required pursuant to the Weld County
Code. If, at any time during the term or after termination or expiration of this Agreement, County
reasonably determines that any payment made by County to Contractor was improper because the
service for which payment was made did not perform as set forth in this Agreement, then upon
written notice of such determination and request for reimbursement from County, Contractor shall
forthwith return such payment(s) to County. Upon termination or expiration of this Agreement,
unexpended funds advanced by County, if any, shall forthwith be returned to County.. County will
not withhold any taxes from monies paid to the Contractor hereunder and Contractor agrees to be
solely responsible for the accurate reporting and payment of any taxes related to payments made
pursuant to the terms of this Agreement. Unless expressly enumerated in the attached Exhibits,
Contractor shall not be entitled to be paid for any other expenses (e.g. mileage). Notwithstanding
anything to the contrary contained in this Agreement, County shall have no obligations under this
Agreement after, nor shall any payments be made to Contractor in respect of any period after
December 31 of any year, without an appropriation therefore by County in accordance with a
budget adopted by the Board of County Commissioners in compliance with Article 25, Title 30 of
the Colorado Revised Statutes, the Local Government Budget Law (C.R.S. 29-1-101 et. seq.) and
the TABOR Amendment (Colorado Constitution, Article X, Sec. 20).
7. Independent Contractor. Contractor agrees that it is an independent contractor and
that Contractor's officers, agents or employees will not become employees of County, nor entitled
to any employee benefits (including unemployment insurance or workers' compensation benefits)
from County as a result of the execution of this Agreement. Contractor shall be solely responsible
for its acts and those of its agents and employees for all acts performed pursuant to this Agreement.
Contractor, its employees and agents are not entitled to unemployment insurance or
workers' compensation benefits through County and County shall not pay for or otherwise
provide such coverage for Contractor or any of its agents or employees. Unemployment
insurance benefits will be available to Contractor and its employees and agents only if such
coverage is made available by Contractor or a third party. Contractor shall pay when due
all applicable employment taxes and income taxes and local head taxes (if applicable)
incurred pursuant to this Agreement.
8. Subcontractors. Contractor acknowledges that County has entered into this
Agreement in reliance upon the particular reputation and expertise of Contractor. Contractor shall
not enter into any subcontractor agreements for the completion of the Work without County's prior
written consent, which may be withheld in County's sole discretion. County shall have the right
in its reasonable discretion to approve all personnel assigned to the Work during the performance
of this Agreement and no personnel to whom County has an objection, in its reasonable discretion,
shall be assigned to the Work. Contractor shall require each subcontractor, as approved by County
and to the extent of the Work to be performed by the subcontractor, to be bound to Contractor by
the terms of this Agreement, and to assume toward Contractor all the obligations and
responsibilities which Contractor, by this Agreement, assumes toward County. County shall have
the right (but not the obligation) to enforce the provisions of this Agreement against any
subcontractor hired by Contractor and Contractor shall cooperate in such process. The Contractor
shall be responsible for the acts and omissions of its agents, employees and subcontractors.
9. Ownership. All work and information obtained by Contractor under this Agreement or
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individual work order shall become or remain (as applicable), the property of County. In addition,
all reports, documents, data, plans, drawings, records and computer files generated by Contractor
in relation to this Agreement and all reports, test results and all other tangible materials obtained
and/or produced in connection with the performance of this Agreement, whether or not such
materials are in completed form, shall at all times be considered the property of the County.
Contractor shall not make use of such material for purposes other than in connection with this
Agreement without prior written approval of County.
10. Confidentiality. Confidential information of the Contractor should be transmitted
separately from non -confidential information, clearly denoting in red on the relevant document at
the top the word, "CONFIDENTIAL." However, Contractor is advised that as a public entity,
Weld County must comply with the provisions of the Colorado Open Records Act (CORA), C.R.S.
24-72-201, et seq., with regard to public records, and cannot guarantee the confidentiality of all
documents. Contractor agrees to keep confidential all of County's confidential information.
Contractor agrees not to sell, assign, distribute, or disclose any such confidential information to
any other person or entity without seeking written permission from the County. Contractor agrees
to advise its employees, agents, and consultants, of the confidential and proprietary nature of this
confidential information and of the restrictions imposed by this Agreement.
11. Warranty. Contractor warrants that the Work performed under this Agreement will be
performed in a manner consistent with the standards governing such services and the provisions
of this Agreement. Contractor further represents and warrants that all Work shall be performed by
qualified personnel in a professional manner, consistent with industry standards, and that all
services will conform to applicable specifications.
12. Acceptance of Services Not a Waiver. Upon completion of the Work, Contractor
shall submit to County originals of all test results, reports, etc., generated during completion of
this work. Acceptance by County of reports and incidental material(s) furnished under this
Agreement shall not in any way relieve Contractor of responsibility for the quality and accuracy
of the project. In no event shall any action by County hereunder constitute or be construed to be
a waiver by County of any breach of this Agreement or default which may then exist on the part
of Contractor, and County's action or inaction when any such breach or default exists shall not
impair or prejudice any right or remedy available to County with respect to such breach or default.
No assent, expressed or implied, to any breach of any one or more covenants, provisions or
conditions of the Agreement shall be deemed or taken to be a waiver of any other breach.
Acceptance by the County of, or payment for, the Work completed under this Agreement shall not
be construed as a waiver of any of the County's rights under this Agreement or under the law
generally.
13. Insurance., Contractor must secure, before the commencement of the Work, the
following insurance covering all operations, goods, and services provided pursuant to this
Agreement, and shall keep the required insurance coverage in force at all times during the term of
the Agreement, or any extension thereof, and during any warranty period. For all coverages,
Contractor's insurer shall waive subrogation rights against County.
a. Types of Insurance.
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Workers' Compensation / Employer's Liability Insurance as required by state statute,
covering all of the Contractor's employees acting within the course and scope of their
employment. The policy shall contain a waiver of subrogation against the County. This
requirement shall not apply when a Contractor or subcontractor is exempt under Colorado
Workers' Compensation Act, AND when such Contractor or subcontractor executes the
appropriate sole proprietor waiver form.
Commercial General Liability Insurance including public liability and property damage,
covering all operations required by the Work. Such policy shall include minimum limits as
follows: $1,000,000 each occurrence; $1,000,000 general aggregate; $1,000,000 Personal
injury; $50,000 any 1 fire, $5,000 Medical payment per person.
Automobile Liability Insurance: Contractor shall maintain limits of $1,000,000 for bodily
injury per person, $1,000,000 for bodily injury for each accident, and $1,000,000 for property
damage applicable to all vehicles operating both on County property and elsewhere, for
vehicles owned, hired, and non -owned vehicles used in the performance of this Contract.
Professional Liability (Errors and Omissions Liability): The policy shall cover
professional misconduct or lack of ordinary skill for those positions defined in the Scope
of Services of this contract. Contractor shall maintain limits for all claims covering
wrongful acts, errors and/or omissions, including design errors, if applicable, for damage
sustained by reason of or in the course of operations under this Contract resulting from
professional services. In the event that the professional liability insurance required by this
Contract is written on a claims -made basis, Contractor warrants that any retroactive date
under the policy shall precede the effective date of this Contract; and that either continuous
coverage will be maintained or an extended discovery period will be exercised for a period
of two (2) years beginning at the time work under this Contract is completed. Minimum
Limits: $1,000,000 Per Loss; $2,000,000 Aggregate.
Privacy Insurance Liability Insurance covering all loss of County and State Confidential
Information, such as Personal Identifiable Information (PII), Protected Health Information
(PHI), Payment Card Information (PCI), Tax Information, and Criminal Justice
Information (CJI), and claims based on alleged violations of privacy rights through
improper use or disclosure of protected information with minimum limits as follows:
$1,000,000 each occurrence; and $2,000,000 general aggregate. Notwithstanding if
Contractor has Confidential Information for 10 or fewer individuals or revenue of
$250,000 or less, Contractor shall maintain limits of not less than $50,000.
Notwithstanding if Contractor has Confidential Information for 25 or fewer individuals or
revenue of $500,000 or less, Contractor shall maintain limits of not less than. $100,000.
b. Proof of Insurance. Upon County's request, Contractor shall provide to County a
certificate of insurance, a policy, or other proof of insurance as determined in County's
sole discretion. County may require Contractor to provide a certificate of insurance naming
Weld County, Colorado, its elected officials, and its employees as an additional named
insured.
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c. Subcontractor Insurance. Contractor hereby warrants that all subcontractors providing
services under this Agreement have or will have the above described insurance prior to
their commencement of the Work, or otherwise that they are covered by the Contractor's
policies to the minimum limits as required herein. Contractor agrees to provide proof of
insurance for all such subcontractors upon request by the County.
d. No limitation of Liability. The insurance coverages specified in this Agreement are the
minimum requirements, and these requirements do not decrease or limit the liability of
Contractor. The County in no way warrants that the minimum limits contained herein are
sufficient to protect the Contractor from liabilities that might arise out of the performance
of the Work under by the Contractor, its agents, representatives, employees, or
subcontractors. The Contractor shall assess its own risks and if it deems appropriate and/or
prudent, maintain higher limits and/or broader coverages. The Contractor is not relieved
of any liability or other obligations assumed or pursuant to the Contract by reason of its
failure to obtain or maintain insurance in sufficient amounts, duration, or types. The
Contractor shall maintain, at its own expense, any additional kinds or amounts of insurance
that it may deem necessary to cover its obligations and liabilities under this Agreement.
e. Certification of Compliance with Insurance Requirements. The Contractor stipulates that
it has met the insurance requirements identified herein. The Contractor shall be responsible
for the professional quality, technical accuracy, and quantity of all services provided, the
timely delivery of said services, and the coordination of all services rendered by the
Contractor and shall, without additional compensation, promptly remedy and correct any
errors, omissions, or other deficiencies.
14. Indemnity. The Contractor shall defend, indemnify and hold harmless County and the
State of Colorado, its officers, agents, and employees, from and against any and all injury, loss,
damage, liability, suits, actions, claims, or willful acts or omissions of any type or character arising
out of the Work done in fulfillment of the terms of this Agreement or on account of any act, claim
or amount arising or recovered under workers' compensation law or arising out of the failure of
the Contractor to conform to any statutes, ordinances, regulation, judicial decision, or other law
or court decree. The Contractor shall be fully responsible and liable for any and all injuries or
damage received or sustained by any person, persons, or property on account of its performance
under this Agreement or its failure to comply with the provisions of the Agreement. It is agreed
that the Contractor will be responsible for primary loss investigation, defense and judgment costs
where this contract of indemnity applies. In consideration of the award of this contract, the
Contractor agrees to waive all rights of subrogation against the County its associated and/or
affiliated entities, successors, or assigns, its elected officials, trustees, employees, agents, and
volunteers for losses arising from the work performed by the Contractor for the County. A failure
to comply with this provision shall result in County's right to immediately terminate this
Agreement.
15. Non -Assignment. Contractor may not assign or transfer this Agreement or any interest
therein or claim thereunder, without the prior written approval of County. Any attempts by
Contractor to assign or transfer its rights hereunder without such prior approval by County shall,
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at the option of County, automatically terminate this Agreement and all rights of Contractor
hereunder. Such consent may be granted or denied at the sole and absolute discretion of County.
16. Examination of Records. To the extent required by law, the Contractor agrees that an
duly authorized representative of County, including the County Auditor, shall have access to and
the right to examine and audit any books, documents, papers and records of Contractor, involving
all matters and/or transactions related to this Agreement. Contractor agrees to maintain these
documents for three years from the date of the last payment received.
17. Interruptions. Neither party to this Agreement shall be liable to the other for delays
in delivery or failure to deliver or otherwise to perform any obligation under this Agreement, where
such failure is due to any cause beyond its reasonable control, including but not limited to Acts of
God, fires, strikes, war, flood, earthquakes or Governmental actions.
18. Notices. County may designate, prior to commencement of Work, its project
representative ("County Representative") who shall make, within the scope of his or her authority,
all necessary and proper decisions with reference to the project. All requests for contract
interpretations, change orders, and other clarification or instruction shall be directed to County
Representative. All notices or other communications made by one party to the other concerning
the terms and conditions of this contract shall be deemed delivered under the following
circumstances:
(a) personal service by a reputable courier service requiring signature for receipt; or
(b) five (5) days following delivery to the United States Postal Service, postage prepaid
addressed to a party at the address set forth in this contract; or
(c) electronic transmission via email at the address set forth below, where a receipt or
acknowledgment is required and received by the sending party; or
Either party may change its notice address(es) by written notice to the other. Notice may be sent
to:
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19. Compliance with Law. Contractor shall strictly comply with all applicable federal
and State laws, rules and regulations in effector hereafter established, including without limitation,
laws applicable to discrimination and unfair employment practices.
20. Non -Exclusive Agreement. This Agreement is nonexclusive and County may engage or
use other Contractors or persons to perform services of the same or similar nature.
21. Entire Agreement/Modifications. This Agreement including the Exhibits attached
hereto and incorporated herein, contains the entire agreement between the parties with respect to
the subject matter contained in this Agreement. This instrument supersedes all prior negotiations,
representations, and understandings or agreements with respect to the subject matter contained in
this Agreement. This Agreement may be changed or supplemented only by a written instrument
signed by both parties.
22. Fund Availability. Financial obligations of the County payable after the current fiscal
year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made
available. Execution of this Agreement by County does not create an obligation on the part of
County to expend funds not otherwise appropriated in each succeeding year.
23. Employee Financial Interest/Conflict of Interest — C.R.S. §§24-18-201 et seq. and §24-
50-507. The signatories to this Agreement state that to their knowledge, no employee of Weld
County has any personal or beneficial interest whatsoever in the service or property which is the
subject matter of this Agreement.
24. Survival of Termination. The obligations of the parties under this Agreement that by
their nature would continue beyond expiration or termination of this Agreement (including,
without limitation, the warranties, indemnification obligations, confidentiality and record keeping
requirements) shall survive any such expiration or termination.
25. Severability. If any term or condition of this Agreement shall be held to be invalid, illegal,
or unenforceable by a court of competent jurisdiction, this Agreement shall be construed and
enforced without such provision, to the extent that this Agreement is then capable of execution
within the original intent of the parties.
26. Governmental Immunity. No term or condition of this Agreement shall be construed
or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections
or other provisions, of the Colorado Governmental Immunity Act §§24-10-101 et seq., as
applicable now or hereafter amended.
27. No Third Party Beneficiary. It is expressly understood and agreed that the
enforcement of the terms and conditions of this Agreement, and all rights of action relating to such
enforcement, shall be strictly reserved to the undersigned parties and nothing in this Agreement
shall give or allow any claim or right of action whatsoever by any other person not included in this
Agreement. It is the express intention of the undersigned parties that any entity other than the
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undersigned parties receiving services or benefits under this Agreement shall be an incidental
beneficiary only.
28. Board of County Commissioners of Weld County Approval. This Agreement shall
not be valid until it has been approved by the Board of County Commissioners of Weld County,
Colorado or its designee.
29. Choice of Law/Jurisdiction. Colorado law, and rules and regulations established pursuant
thereto, shall be applied hi the interpretation, execution, and enforcement of this Agreement. Any
provision included or incorporated herein by reference which conflicts with said laws, rules and/or
regulations shall be null and void. In the event of a legal dispute between the parties, Contractor
agrees that the Weld County District Court shall have exclusive jurisdiction to resolve said dispute.
30. Attorney's Fees/Legal Costs. In the event of a dispute between County and Contractor
concerning this Agreement, the parties agree that each party shall be responsible for the payment
of attorney fees and/or legal costs incurred by or on its own behalf.
31. Binding Arbitration Prohibited. Weld County does not agree to binding arbitration by any
extra judicial body or person. Any provision to the contrary in this Agreement or incorporated
herein by reference shall be null and void.
Acknowledgment. County and Contractor acknowledge that each has read this Agreement,
understands it and agrees to be bound by its terms. Both parties further agree that this Agreement,
with the attached Exhibits, is the complete and exclusive statement of agreement between the
parties and supersedes all proposals or prior agreements, oral or written, and any other
communications between the parties relating to the subject matter of this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed the Agreement as of
the day, month, and year first above written.
COUNTY:
ATTEST: BOARD OF COUNTY COMMISSIONERS
Clerk to the Board WELD COUNTY, COLORADO
BY:
Deputy Clerk to the Board
Mike Freeman, Chair
CONTRACTOR:
(Contractor)
(Address)
(City, State Zip)
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By:
(Contractor's Representative), (Title)
Date:
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EXHIBIT C
HIPAA BUSINESS ASSOCIATE AGREEMENT
This HIPAA Business Associate Agreement ("Agreement") between the County and Contractor is agreed to in
connection with, and as an exhibit to, the Contract. For purposes of this Agreement, the County is referred to as
"Covered Entity" and the Contractor is referred to as "Business Associate". Unless the context clearly requires a
distinction between the Contract and this Agreement, all references to "Contract" shall include this Agreement.
1. PURPOSE
Covered Entity wishes to disclose information to Business Associate, which may include Protected Health
Information ("PHI"). The Parties intend to protect the privacy and security of the disclosed PHI in compliance with
the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), Pub. L. No. 104-191 (1996) as
amended by the Health Information Technology for Economic and Clinical Health Act ("HITECH Act") enacted
under the American Recovery and Reinvestment Act of 2009 ("ARRA") Pub. L. No. 111-5 (2009), implementing
regulations promulgated by the U.S. Department of Health and Human Services at 45 C.F.R. Parts 160, 162 and
164 (the "HIPAA Rules") and other applicable laws, as amended. Prior to the disclosure of PHI, Covered Entity is
required to enter into an agreement with Business Associate containing specific requirements as set forth in, but not
limited to, Title 45, Sections 160.103, 164.502(e) and 164.504(e) of the Code of Federal Regulations ("C.F.R.")
and all other applicable laws and regulations, all as may be amended.
2. DEFINITIONS
The following terms used in this Agreement shall have the same meanings as in the HIPAA Rules: Breach, Data
Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice
of Privacy Practices, Protected Health Information, Required by Law, Secretary, Security Incident, Subcontractor,
Unsecured Protected Health Information, and Use.
The following terms used in this Agreement shall have the meanings set forth below:
a. Business Associate. "Business Associate" shall have the same meaning as the term "business associate"
at 45 C.F.R. 160.103, and shall refer to Contractor.
b. Covered Entity. "Covered Entity" shall have the same meaning as the term "covered entity" at 45 C.F.R.
160.103, and shall refer to the County.
c. Information Technology and Information Security. "Information Technology" and "Information
Security" shall have the same meanings as the terms "information technology" and "information
security", respectively, in §24-37.5-102, C.R.S.
Capitalized terms used herein and not otherwise defined herein or in the HIPAA Rules shall have the meanings
ascribed to them in the Contract.
3. OBLIGATIONS AND ACTIVITIES OF BUSINESS ASSOCIATE
a. Permitted Uses and Disclosures.
i. Business Associate shall use and disclose PHI only to accomplish Business Associate's
obligations under the Contract.
Page 1 of 9
EXHIBIT C
HIPAA BUSINESS ASSOCIATE AGREEMENT
ii. To the extent Business Associate carries out one or more of Covered Entity's obligations under
Subpart E of 45 C.F.R. Part 164, Business Associate shall comply with any and all requirements
of Subpart E that apply to Covered Entity in the performance of such obligation.
iii. Business Associate may disclose PHI to carry out the legal responsibilities of Business
Associate, provided, that the disclosure is Required by Law or Business Associate obtains
reasonable assurances from the person to whom the information is disclosed that:
A. the information will remain confidential and will be used or disclosed only as Required
by Law or for the purpose for which Business Associate originally disclosed the
information to that person, and;
B. the person notifies Business Associate of any Breach involving PHI of which it is
aware.
iv. Business Associate may provide Data Aggregation services relating to the Health Care
Operations of Covered Entity. Business Associate may de -identify any or all PHI created or
received by Business Associate under this Agreement, provided the de -identification conforms
to the requirements of the HIPAA Rules.
b. Minimum Necessary. Business Associate, its Subcontractors and agents, shall access, use, and disclose
only the minimum amount of PHI necessary to accomplish the objectives of the Contract, in accordance
with the Minimum Necessary Requirements of the HIPAA Rules including, but not limited to, 45
C.F.R. 164.502(b) and 164.514(d).
c. Impermissible Uses and Disclosures.
i. Business Associate shall not disclose the PHI of Covered Entity to another covered entity
without the written authorization of Covered Entity.
ii. Business Associate shall not share, use, disclose or make available any Covered Entity PHI in
any form via any medium with or to any person or entity beyond the boundaries or jurisdiction
of the United States without express written authorization from Covered Entity.
d. Business Associate's Subcontractors.
Business Associate shall, in accordance with 45 C.F.R. 164.502(e)(1)(ii) and 164.308(b)(2),
ensure that any Subcontractors who create, receive, maintain, or transmit PHI on behalf of
Business Associate agree in writing to the same restrictions, conditions, and requirements that
apply to Business Associate with respect to safeguarding PHI.
ii. Business Associate shall provide to Covered Entity, on Covered Entity's request, a list of
Subcontractors who have entered into any such agreement with Business Associate.
iii. Business Associate shall provide to Covered Entity, on Covered Entity's request, copies of any
such agreements Business Associate has entered into with Subcontractors.
e. Access to System. If Business Associate needs access to a Covered Entity Information Technology
system to comply with its obligations under the Contract or this Agreement, Business Associate shall
request, review, and comply with any and all policies applicable to Covered Entity regarding such
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EXHIBIT C
HIPAA BUSINESS ASSOCIATE AGREEMENT
system including, but not limited to, any policies promulgated by the Office of Information Technology
and available at http://oit.state.co.us/about/policies.
f. Access to PHI. Business Associate shall, within ten days of receiving a written request from Covered
Entity, make available PHI in a Designated Record Set to Covered Entity as necessary to satisfy
Covered Entity's obligations under 45 C.F.R. 164.524.
g.
Amendment of PHI.
Business Associate shall within ten days of receiving a written request from Covered Entity
make any amendment to PHI in a Designated Record Set as directed by or agreed to by Covered
Entity pursuant to 45 C.F.R. 164.526, or take other measures as necessary to satisfy Covered
Entity's obligations under 45 C.F.R. 164.526.
ii. Business Associate shall promptly forward to Covered Entity any request for amendment of
PHI that Business Associate receives directly from an Individual.
h. Accounting Rights. Business Associate shall, within ten days of receiving a written request from
Covered Entity, maintain and make available to Covered Entity the information necessary for Covered
Entity to satisfyits obligations to provide an accounting of Disclosure under 45 C.F.R. 164.528.
i. Restrictions and Confidential Communications.
J•
i. Business Associate shall restrict the Use or Disclosure of an Individual's PHI within ten days
of notice from Covered Entity of:
A. a restriction on Use or Disclosure of PHI pursuant to 45 C.F.R. 164.522; or
B. a request for confidential communication of PHI pursuant to 45 C.F.R. 164.522.
ii. Business Associate shall not respond directly to an Individual's requests to restrict the Use or
Disclosure of PHI or to send all communication of PHI to an alternate address.
iii. Business Associate shall refer such requests to Covered Entity so that Covered Entity can
coordinate and prepare a timely response to the requesting Individual and provide direction to
Business Associate.
Governmental Access to Records. Business Associate shall make its facilities, internal practices, books,
records, and other sources of information, including. PHI, available to the Secretary for purposes of
determining compliance with the HIPAA Rules in accordance with 45 C.F.R. 160.310.
k. Audit, Inspection and Enforcement.
Business Associate shall obtain and update at least annually a written assessment performed by
an independent third party reasonably acceptable to Covered Entity, which evaluates the
Information Security of the applications, infrastructure, and processes that interact with the
Covered Entity data Business Associate receives, manipulates, stores and distributes. Upon
request by Covered Entity, Business Associate shall provide to Covered Entity the executive
sunrnary of the assessment.
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EXHB3IT C
HIPAA BUSINESS ASSOCIATE AGREEMENT
ii. Business Associate, upon the request of Covered Entity, shall fully cooperate with Covered
Entity's efforts to audit Business Associate's compliance with applicable HIPAA Rules. If,
through audit or inspection, Covered Entity determines that Business Associate's conduct
would result in violation of the HIPAA Rules or is in violation of the Contract or this
Agreement, Business Associate shall promptly remedy any such violation and shall certify
completion of its remedy in writing to Covered Entity.
1. Appropriate Safeguards.
i. Business Associate shall use appropriate safeguards and comply with Subpart C of 45 C.F.R.
Part 164 with respect to electronic PHI to prevent use or disclosure of PHI other than as
provided in this Agreement.
ii. Business Associate shall safeguard the PHI from tampering and unauthorized disclosures.
iii. Business Associate shall maintain the confidentiality of passwords and other data required for
accessing this information.
iv. Business Associate shall extend protection beyond the initial information obtained from
Covered Entity to any databases or collections of PHI containing information derived from the
PHI. The provisions of this section shall be in force unless PHI is de -identified in conformance
to the requirements of the HIPAA Rules.
m. Safeguard During Transmission.
i. Business Associate shall use reasonable and appropriate safeguards including, without
limitation, Information Security measures to ensure that all transmissions of PHI are authorized
and to prevent use or disclosure of PHI other than as provided for by this Agreement.
ii. Business Associate shall not transmit PHI over the internet or any other insecure or open
communication channel unless the PHI is encrypted or otherwise safeguarded with a FIPS-
compliant encryption algorithm.
n. Reporting of Improper Use or Disclosure and Notification of Breach.
Business Associate shall, as soon as reasonably possible, but immediately after discovery of a
Breach, notify Covered Entity of any use or disclosure of PHI not provided for by this
Agreement, including a Breach of Unsecured Protected Health Information as such notice is
required by 45 C.F.R. 164.410 or a breach for which notice is required under §24-73-103,
C.R.S.
ii. Such notice shall include the identification of each Individual whose Unsecured Protected
Health Information has been, or is reasonably believed by Business Associate to have been,
accessed, acquired, or disclosed during such Breach.
iii. Business Associate shall, as soon as reasonably possible, but immediately after discovery of
any Security Incident that does not constitute a Breach, notify Covered Entity of such incident.
Business Associate shall have the burden of demonstrating that all notifications were made as
required, including evidence demonstrating the necessity of any delay.
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EXHIBIT C
IRPAA BUSINESS ASSOCIATE AGREEMENT
o. Business Associate's Insurance and Notification Costs.
i. Business Associate shall bear all costs of a Breach response including, without limitation,
notifications, and shall maintain insurance to cover:
A. loss of PHI data;
B. Breach notification requirements specified in HIPAA Rules and in §24-73-103, C.R.S.;
and
C. claims based upon alleged violations of privacy rights through improper use or
disclosure of PHI.
ii. All such policies shall meet or exceed the minimum insurance requirements of the Contract or
otherwise as may be approved by Covered Entity (e.g., occurrence basis, combined single
dollar limits, annual aggregate dollar limits, additional insured status, and notice of
cancellation).
iii. Business Associate shall provide Covered Entity a point of contact who possesses relevant
Information Security knowledge and is accessible 24 hours per day, 7 days per week to assist
with incident handling.
iv. Business Associate, to the extent practicable, shall mitigate any harmful effect known to
Business Associate of a Use or Disclosure of PHI by Business Associate in violation of this
Agreement.
P.
q.
Subcontractors and Breaches.
Business Associate shall enter into a written agreement with each of its Subcontractors and
agents, who create, receive, maintain, or transmit PHI on behalf of Business Associate. The
agreements shall require such Subcontractors and agents to report to Business Associate any
use or disclosure of PHI not provided for by this Agreement, including Security Incidents and
Breaches of Unsecured Protected Health Information, on the first day such Subcontractor or
agent knows or should have known of the Breach as required by 45 C.F.R. 164.410.
ii. Business Associate shall notify Covered Entity of any such report and shall provide copies of
any such agreements to Covered Entity on request.
Data Ownership.
i. Business Associate acknowledges that Business Associate has no ownership rights with respect
to the PHI.
Upon request by Covered Entity, Business Associate immediately shall provide Covered Entity
with any keys to decrypt information that the Business Association has encrypted and maintains
in encrypted form, or shall provide such information in unencrypted usable form.
r. Retention of PHI. Except upon termination of this Agreement as provided in Section 5, below, Business
Associate and its Subcontractors or agents shall retain all PHI throughout the term of this Agreement,
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EXHIBIT C
HIPAA BUSINESS ASSOCIATE AGREEMENT
and shall continue to maintain the accounting of disclosures required under Section 3.h, above, for a
period of six years.
4. OBLIGATIONS OF COVERED ENTITY
a. Safeguards During Transmission. Covered Entity shall be responsible for using appropriate safeguards
including encryption of PHI, to maintain and ensure the confidentiality, integrity, and security of PHI
transmitted pursuant to this Agreement, in accordance with the standards and requirements of the
HIPAA Rules.
b. Notice of Changes.
Covered Entity maintains a copy of its Notice of Privacy Practices on its website. Covered
Entity shall provide Business Associate with any changes in, or revocation of, permission to
use or disclose PHI, to the extent that it may affect Business Associate's permitted or required
uses or disclosures.
ii. Covered Entity shall notify Business Associate of any restriction on the use or disclosure of
PHI to which Covered Entity has agreed in accordance with 45 C.F.R. 164.522, to the extent
that it may affect Business Associate's permitted use or disclosure of PHI.
5. TERMINATION
a. Breach.
i. In addition to any Contract provision regarding remedies for breach, Covered Entity shall have
the right, in the event of a breach by Business Associate of any provision of this Agreement, to
terminate immediately the Contract, or this Agreement, or both.
ii. Subject to any directions from Covered Entity, upon termination of the Contract, this
Agreement, or both, Business Associate shall take timely, reasonable, and necessary action to
protect and preserve property in the possession of Business Associate in which Covered Entity
has an interest.
b. Effect of Termination.
i. Upon termination of this Agreement for any reason, Business Associate, at the option of
Covered Entity, shall return or destroy all PHI that Business Associate, its agents, or its
Subcontractors maintain in any form, and shall not retain any copies of such PHI.
ii. If Covered Entity directs Business Associate to destroy the PHI, Business Associate shall
certify in writing to Covered Entity that such PHI has been destroyed.
iii. If Business Associate believes that returning or destroying the PHI is not feasible, Business
Associate shall promptly provide Covered Entity with notice of the conditions making return
or destruction infeasible. Business Associate shall continue to extend the protections of Section
3 of this Agreement to such PHI, and shall limit further use of such PHI to those purposes that
make the return or destruction of such PHI infeasible.
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EXHIBIT C
1DPAA BUSINESS ASSOCIATE AGREEMENT
6. INJUNCTIVE RELIEF
Covered Entity and Business Associate agree that irreparable damage would occur in the event Business Associate
or any of its Subcontractors or agents use or disclosure of PHI in violation of this Agreement, the HIPAA Rules or
any applicable law. Covered Entity and Business Associate further agree that money damages would not provide
an adequate remedy for such Breach. Accordingly, Covered Entity and Business Associate agree that Covered
Entity shall be entitled to injunctive relief, specific performance, and other equitable relief to prevent or restrain any
Breach or threatened Breach of and to enforce specifically the terms and provisions of this Agreement.
7. LIMITATION OF LIABILITY
Any provision in the Contract limiting Contractor's liability shall not apply to Business Associate's liability under
this Agreement, which shall not be limited.
8. DISCLAIMER
Covered Entity makes no warranty or representation that compliance by Business Associate with this Agreement
or the HIPAA Rules will be adequate or satisfactory for Business Associate's own purposes. Business Associate is
solely responsible for all decisions made and actions taken by Business Associate regarding the safeguarding of
PHI.
9. CERTIFICATION
Covered Entity has a legal obligation under HIPAA Rules to certify as to Business Associate's Information Security
practices. Covered Entity or its authorized agent or contractor shall have the right to examine Business Associate's
facilities, systems, procedures, and records, at Covered Entity's expense, if Covered Entity determines that
examination is necessary to certify that Business Associate's Information Security safeguards comply with the
HIPAA Rules or this Agreement.
10. AMENDMENT
a. Amendment to Comply with Law. The Parties acknowledge that state and federal laws and regulations
relating to data security and privacy are rapidly evolving and that amendment of this Agreement may
be required to provide procedures to ensure compliance with such developments.
In the event of any change to state or federal laws and regulations relating to data security and
privacy affecting this Agreement, the Parties shall take such action as is necessary to implement
the changes to the standards and requirements of HIPAA, the HIPAA Rules and other
applicable rules relating to the confidentiality, integrity, availability and security of PHI with
respect to this Agreement.
ii. Business Associate shall provide to Covered Entity written assurance satisfactory to Covered
Entity that Business Associate shall adequately safeguard all PHI, and obtain written assurance
satisfactory to Covered Entity from Business Associate's Subcontractors and agents that they
shall adequately safeguard all PHI.
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EXHIBIT C
HIPAA BUSINESS ASSOCIATE AGREEMENT
iii. Upon the request of either Party, the other Party promptly shall negotiate in good faith the terms
of an amendment to the Contract embodying written assurances consistent with the standards
and requirements of HIPAA, the HIPAA Rules, or other applicable rules.
iv. Covered Entity may terminate this Agreement upon 30 days' prior written notice in the event
that:
A. Business Associate does not promptly enter into negotiations to amend the Contract
and this Agreement when requested by Covered Entity pursuant to this Section; or
B. Business Associate does not enter into an amendment to the Contract and this
Agreement, which provides assurances regarding the safeguarding of PHI sufficient,
in Covered Entity's sole discretion, to satisfy the standards and requirements of the
HIPAA, the HIPAA Rules and applicable law.
b. Amendment of Appendix. The Appendix to this Agreement maybe modified or amended by the mutual
written agreement of the Parties, without amendment of this Agreement. Any modified or amended
Appendix agreed to in writing by the Parties shall supersede and replace any prior version of the
Appendix.
11. ASSISTANCE IN LITIGATION OR ADMINISTRATIVE PROCEEDINGS
Covered Entity shall provide written notice to Business Associate if litigation or administrative proceeding is
commenced against Covered Entity, its directors, officers, or employees, based on a claimed violation by Business
Associate of HIPAA, the HIPAA Rules or other laws relating to security and privacy or PHI. Upon receipt of such
notice and to the extent requested by Covered Entity, Business Associate shall, and shall cause its employees,
Subcontractors, or agents assisting Business Associate in the performance of its obligations under the Contract to,
assist Covered Entity in the defense of such litigation or proceedings. Business Associate shall, and shall cause its
employees, Subcontractor's and agents to, provide assistance, to Covered Entity, which may include testifying as a
witness at such proceedings. Business Associate or any of its employees, Subcontractors or agents shall not be
required to provide such assistance if Business Associate is a named adverse party.
12. INTERPRETATION AND ORDER OF PRECEDENCE
Any ambiguity in this Agreement shall be resolved in favor of a meaning that complies and is consistent with the
HIPAA Rules. In the event of an inconsistency between the Contract and this Agreement, this Agreement shall
control. This Agreement supersedes and replaces any previous, separately executed HIPAA business associate
agreement between the Parties.
13. SURVIVAL
Provisions of this Agreement requiring continued performance, compliance, or effect after termination shall survive
termination of this contract or this agreement and shall be enforceable by Covered Entity.
Page 8 of 9
EXHIBIT C
HIPAA BUSINESS ASSOCIATE AGREEMENT
APPENDIX TO HIPAA BUSINESS ASSOCIATE AGREEMENT
This Appendix ("Appendix") to the HIPAA Business Associate Agreement ("Agreement") is s an appendix to the
Contract and the Agreement. For the purposes of this Appendix, defined terms shall have the meanings ascribed to
them in the Agreement and the Contract. Unless the context clearly requires a distinction between the Contract, the
Agreement, and this Appendix, all references to "Contract" or "Agreement" shall include this Appendix.
1. PURPOSE
This Appendix sets forth additional terms to the Agreement. Any sub -section of this Appendix marked as
"Reserved" shall be construed as setting forth no additional terms.
2. ADDITIONAL TERMS
a. Additional Permitted Uses. In addition to those purposes set forth in the Agreement, Business
Associate may use PHI for the following additional purposes:
i. Reserved.
b. Additional Permitted Disclosures. In addition to those purposes set forth in the Agreement, Business
Associate may disclose PHI for the following additional purposes:
i. Reserved.
c. Approved Subcontractors. Covered Entity agrees that the following Subcontractors or agents of
Business Associate may receive PHI under the Agreement
i. Reserved.
d. Definition of Receipt of PHI. Business Associate's receipt of PHI under this Contract shall be deemed
to occur, and Business Associate's obligations under the Agreement shall commence, as follows:
i. Reserved.
e. Additional Restrictions on Business Associate. Business Associate agrees to comply with the following
additional restrictions on Business Associate's use and disclosure of PHI under the Contract:
i. Reserved.
f. Additional Terms. Business Associate agrees to comply with the following additional terms under the
Agreement
i. Reserved.
Page 9 of 9
Exhibit D
Modified Scope and Rates
Exhibit D addresses the funding, specific Scope of Services, Rates, and Performance
Measurements based on the awarded grant monies issued by the County.
1. Service and Rates
The County agrees to pay the Contractor in consideration of the work and services
performed under this Agreement at a monthly base rate of $ . Charges shall
be based on the time actually spent performing the services, but may include additional
compensation as follows:
a. A Fuel Surcharge as a percent added to the base rate as outlined per Appendix E,
Fuel Surcharge Allowance Schedule. Fuel Surcharges shall be authorized by the
County if a change in service is required.
b. A differential flat rate of $10.00 per site will be added to the base mileage rate for
summer evening meal deliveries as outlined per Appendix G, Senior Nutrition
Program Route Schedule.
Contractor shall not be paid any other expenses unless set forth in this Agreement.
Payment pursuant to this Agreement, whether in whole or in part, is subject to and
contingent upon the continuing availability of said funds for the purposes hereof. In the
event that said funds, or any part thereof, become unavailable as determined by the
County, the County may immediately terminate the Agreement or amend it accordingly.
2. Terms
Contractor agrees to commence services within thirty (30) days after the signing of the
Agreement and assure completion of all services under this agreement by the end of the
period dated in Section 1, Funding.
Contractor understands that County may conduct periodic evaluations of the activities
conducted under this Agreement and to monitor on an ongoing basis the performance of
Contractor; and Contractor accordingly agrees to cooperate fully with the County in the
conduct of such evaluation and monitoring, including the keeping and supplying of such
information, and providing access to documents and records to the County for the
purpose of audit; and further agrees to do all things necessary to enable County to fulfill
its obligation to the State of Colorado and the United States. Government.
Any changes, including any increase or decrease in the amount of Contractor's
compensation, and including changes in budget allocations which are mutually agreed
upon by and between the County and Contractor, shall be incorporated in written
amendments to this Agreement and in appropriate revisions to the grant proposal.
Contractor understands and agrees that the following provisions are part of the official
application and as such become binding upon commencement of the project:
Exhibit D
Modified Scope and Rates
a. This Agreement and the provisions of services hereunder shall be subject to the
laws of Colorado and be in accordance with the policies, procedures, and
practices of the County, the Older Americans Act, Volume 10 Code of Colorado
Regulations and the policies and procedures established by the State Unit on
Aging, and the terms and conditions of the project application approved by the
County.
b. Understands that if there is Federal/State program income unearned at the time the
project is terminated, this amount must be returned to the County unless the
County otherwise stipulates.
c. Understands that the project's fiscal affairs are subject to audit. If costs are
disallowed, the proportion of Federal/State funds disallowed must be returned to
the County.
d. Understands that this award is made for the period amounts stated in this
Agreement. This Agreement in no way implies further funding which is
contingent upon the availability of funds and approval of future project
applications.
e. Agrees to keep records and make reports on the forms required by the County and
in accordance with guidelines issued by the State of Colorado and the
Administration on Aging, specifically,
i. To submit monthly financial invoices to the County by the 10th of the
following month, with each such invoice providing details regarding the
number of drivers and vans used each day, a record of monthly mileage,
the average monthly gas price based on the 10th of each month using the
current state average listed on www.colorado.aaa.com for the month
before the month invoiced;
ii. To submit other reports to the County as requested;
iii. Maintain a computer system that will be able to manage all required
County reporting software;
iv. Maintain internet access in order to transfer all required data to the
County.
f. Agrees to advise the County of needed program and financial changes and await
approval from the County prior to change implementation.
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