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SERIAL#: PH RFP 200234 Page 1 of 27 (DRAFT CONTRACT) CONTRACT PURSUANT TO PH RFP 200234 This Contract is entered into this 1st day of August, 2020 by and between Maricopa County (“County”), a political subdivision of the State of Arizona, and _______________________________, an Arizona corporation (“Contractor”) for the purchase of Mass Immunization Services and Administration. 1.0 CONTRACT TERM: 1.1 This Contract is for a term of three (3) years, beginning on the 19th day of August, 2020 and ending the 18th day of August, 2023. 1.2 The County may, at its option and with the agreement of the Contractor, renew the term of this Contract for additional terms up to a maximum of two (2) additional years, (or at the County’s sole discretion, extend the contract on a month-to-month bases for a maximum of six (6) months after expiration). The County shall notify the Contractor in writing of its intent to extend the Contract term at least sixty (60) calendar days prior to the expiration of the original contract term, or any additional term thereafter. 1.3 CONTRACT COMPLETION: The Contractor shall make all reasonable efforts for an orderly transition of its duties and responsibilities to another provider and/or to the County. This may include, but is not limited to the preparation of a transition plan and cooperation with the County or other providers in the transition. The transition includes the transfer of all records, and other data in the possession, custody or control of Contractor required to be provided to the County either by the terms of this agreement or as a matter of law. The provisions of this clause shall survive the expiration or termination of this agreement. 2.0 PRICE ADJUSTMENTS: Any requests for reasonable price adjustments must be submitted sixty (60) calendar days prior to the Contract annual anniversary. Requests for adjustment in cost of labor and/or materials must be supported by appropriate documentation. The reasonableness of the request will be determined by comparing the request with the Consumer Price Index or by performing a market survey. If County agrees to the adjusted price terms, County shall issue written approval of the change and provide an updated version of the Contract. The new change shall not be in effect until the date stipulated on the Contract. 3.0 PAYMENTS: 3.1 As consideration for performance of the duties described herein, County shall pay Contractor the total amounts agreed upon for each work assignment given. 3.2 Payment shall be made upon the County’s receipt of a properly completed invoice. 3.3 INVOICES: SERIAL PH RFP 200234 Page 2 of 27 3.3.1 The Contractor shall submit one (1) legible copy of their detailed invoice before payment(s) will be made. Incomplete invoices will not be processed. At a minimum, the invoice must provide the following information: • Company name, address and contact • County bill-to name and contact information • Contract Serial Number • County purchase order number • Project name and/or number • Invoice number and date • Payment terms • Date of service or delivery • Quantity • Contract Item number(s) • Description of Purchase (product or services) • Pricing per unit of purchase • Total Amount Due 3.3.2 Problems regarding billing or invoicing shall be directed to the Department as listed on the Purchase Order. 3.3.3 Payment shall only be made to the Contractor by Accounts Payable through the Maricopa County Vendor Express Payment Program. This is an Electronic Funds Transfer (EFT) process. After Contract Award the Contractor shall complete the Vendor Registration Form located on the County Department of Finance Vendor Registration Web Site (http://www.maricopa.gov/922/Vendors). 3.3.4 Discounts offered in the contract shall be calculated based on the date a properly completed invoice is received by the County. 3.3.5 EFT payments to the routing and account numbers designated by the Contractor will include the details on the specific invoices that the payment covers. The Contractor is required to discuss remittance delivery capabilities with their designated financial institution for access to those details. 3.4 APPLICABLE TAXES: 3.4.1 Payment of Taxes: The Contractor shall pay all applicable taxes. With respect to any installation labor on items that are not attached to real property performed by Contractor under the terms of this Contract, the installation labor cost and the gross receipts for materials provided shall be listed separately on the Contractor’s invoices. 3.4.2 State and Local Transaction Privilege Taxes: To the extent any State and local transaction privilege taxes apply to sales made under the terms of this Contract it is the responsibility of the seller to collect and remit all applicable taxes to the proper taxing jurisdiction of authority. 3.4.3 Tax Indemnification: Contractor and all subcontractors shall pay all Federal, State, and local taxes applicable to its operation and any persons employed by the Contractor. Contractor shall, and require all subcontractors to hold Maricopa County harmless from any responsibility for taxes, damages and interest, if applicable, contributions required under Federal, and/or State and local laws and regulations, and any other costs including; transaction privilege taxes, unemployment compensation insurance, Social Security, and Worker’s Compensation. 3.5 TAX (SERVICES): SERIAL PH RFP 200234 Page 3 of 27 No tax shall be invoiced or paid against Contractor’s labor. It is the responsibility of the Contractor to determine any and all applicable taxes. 3.6 STRATEGIC ALLIANCE for VOLUME EXPENDITURES ($AVE): The County is a member of the $AVE cooperative purchasing group. $AVE includes the State of Arizona, many Phoenix metropolitan area municipalities, and many K-12 unified school districts. Under the $AVE Cooperative Purchasing Agreement, and with the concurrence of the successful Respondent under this solicitation, a member of $AVE may access a contract resulting from a solicitation issued by the County. 3.7 INTERGOVERNMENTAL COOPERATIVE PURCHASING AGREEMENTS (ICPA’s): County currently holds ICPA’s with numerous governmental entities. These agreements allow those entities, with the approval of the Contractor, to purchase their requirements under the terms and conditions of the County Contract. It is the responsibility of the non-County government entity to perform its own due diligence on the acceptability of the Contract under its procurement rules, processes and procedures. 4.0 AVAILABILITY OF FUNDS: 4.1 The provisions of this Contract relating to payment for services shall become effective when funds assigned for the purpose of compensating the Contractor as herein provided are actually available to County for disbursement. The County shall be the sole judge and authority in determining the availability of funds under this Contract. County shall keep the Contractor fully informed as to the availability of funds. 4.2 If any action is taken by, any State agency, Federal department, or any other agency or instrumentality to suspend, decrease, or terminate its fiscal obligations under, or in connection with, this Contract, County may amend, suspend, decrease, or terminate its obligations under, or in connection with, this Contract. In the event of termination, County shall be liable for payment only for services rendered prior to the effective date of the termination, provided that such services are performed in accordance with the provisions of this Contract. County shall give written notice of the effective date of any suspension, amendment, or termination under this Section, at least ten (10) days in advance. 5.0 DUTIES: 5.1 The Contractor shall perform all duties stated in Exhibit “B”, or as otherwise directed in writing by the Procurement Officer. 6.0 TERMS AND CONDITIONS: 6.1 INDEMNIFICATION: To the fullest extent permitted by law, and to the extent that claims, damages, losses or expenses are not covered and paid by insurance purchased by the Contractor, the Contractor shall defend indemnify and hold harmless the County (as Owner), its agents, representatives, agents, officers, directors, officials, and employees from and against all claims, damages, losses, and expenses (including, but not limited to attorneys' fees, court costs, expert witness fees, and the costs and attorneys' fees for appellate proceedings) arising out of, or alleged to have resulted from the negligent acts, errors, omissions, or mistakes relating to the performance of this Contract. Contractor's duty to defend, indemnify, and hold harmless the County, its agents, representatives, agents, officers, directors, officials, and employees shall arise in connection with any claim, damage, loss, or expense that is attributable to bodily injury, sickness, disease, death or injury to, impairment of, or destruction of tangible property, including loss of use resulting there from, caused by negligent acts, errors, omissions, or mistakes in the performance of this Contract, but only to the extent caused SERIAL PH RFP 200234 Page 4 of 27 by the negligent acts or omissions of the Contractor, a subcontractor, any one directly or indirectly employed by them, or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss, or expense is caused in part by a party indemnified hereunder. The amount and type of insurance coverage requirements set forth herein will in no way be construed as limiting the scope of the indemnity in this paragraph. The scope of this indemnification does not extend to the sole negligence of County. 6.2 INSURANCE: 6.2.1 Contractor, at Contractor’s own expense, shall purchase and maintain the herein stipulated minimum insurance from a company or companies duly licensed by the State of Arizona and possessing a current A.M. Best, Inc. rating of B++. In lieu of State of Arizona licensing, the stipulated insurance may be purchased from a company or companies, which are authorized to do business in the State of Arizona, provided that said insurance companies meet the approval of County. The form of any insurance policies and forms must be acceptable to County. 6.2.2 All insurance required herein shall be maintained in full force and effect until all work or service required to be performed under the terms of the Contract is satisfactorily completed and formally accepted. Failure to do so may, at the sole discretion of County, constitute a material breach of this Contract. 6.2.3 Contractor’s insurance shall be primary insurance as respects County, and any insurance or self-insurance maintained by County shall not contribute to it. 6.2.4 Any failure to comply with the claim reporting provisions of the insurance policies or any breach of an insurance policy warranty shall not affect the County’s right to coverage afforded under the insurance policies. 6.2.5 The insurance policies may provide coverage that contains deductibles or self-insured retentions. Such deductible and/or self-insured retentions shall not be applicable with respect to the coverage provided to County under such policies. Contractor shall be solely responsible for the deductible and/or self-insured retention and County, at its option, may require Contractor to secure payment of such deductibles or self-insured retentions by a surety bond or an irrevocable and unconditional letter of credit. 6.2.6 The insurance policies required by this Contract, except Workers’ Compensation and Errors and Omissions, shall name County, its agents, representatives, officers, directors, officials and employees as Additional Insureds. 6.2.7 The policies required hereunder, except Workers’ Compensation and Errors and Omissions, shall contain a waiver of transfer of rights of recovery (subrogation) against County, its agents, representatives, officers, directors, officials and employees for any claims arising out of Contractor’s work or service. 6.2.8 Commercial General Liability: Commercial General Liability insurance and, if necessary, Commercial Umbrella insurance with a limit of not less than $2,000,000 for each occurrence, $4,000,000 Products/Completed Operations Aggregate, and $4,000,000 General Aggregate Limit. The policy shall include coverage for premises liability, bodily injury, broad form property damage, personal injury, products and completed operations and blanket contractual coverage, and shall not contain any provisions which would serve to limit third party action over claims. There shall be no endorsement or modifications of the CGL limiting the scope of coverage for liability arising from explosion, collapse, or underground property damage. SERIAL PH RFP 200234 Page 5 of 27 6.2.9 Automobile Liability: Commercial/Business Automobile Liability insurance and, if necessary, Commercial Umbrella insurance with a combined single limit for bodily injury and property damage of not less than $2,000,000 each occurrence with respect to any of the Contractor’s owned, hired, and non-owned vehicles assigned to or used in performance of the Contractor’s work or services or use or maintenance of the premises under this Contract. 6.2.10 Workers’ Compensation: Workers’ Compensation insurance to cover obligations imposed by Federal and State statutes having jurisdiction of Contractor’s employees engaged in the performance of the work or services under this Contract; and Employer’s Liability insurance of not less than $1,000,000 for each accident, $1,000,000 disease for each employee, and $1,000,000 disease policy limit. Contractor, its contractors and its subcontractors waive all rights against Contract and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by the Workers’ Compensation and Employer’s Liability or commercial umbrella liability insurance obtained by Contractor, its contractors and its subcontractors pursuant to this Contract. 6.2.11 Professional Liability: Contractor shall maintain Professional Liability insurance which will provide coverage for any and all acts arising out of the work or services performed by the Contractor under the terms of this Contract, with a limit of not less than $1,000,000 for each claim, and $3,000,000 aggregate claims. 6.2.12 Medical Malpractice: Medical Malpractice insurance and, if necessary, Commercial Umbrella insurance, which will insure and provide coverage for Medical Malpractice of the Contractor, with limits of no less than $3,000,000 for each claim. 6.2.13 Sexual molestation and physical abuse: The policy shall be endorsed to include coverage for sexual molestation and physical abuse at limits not less than $2,000,000.00 per occurrence and $4,000,000.00 aggregate. These limits may be included within a General Liability policy, Professional Liability policy or provided by separate endorsement with its own limits as required. Contractor must provide the following statement on their Certificate(s) of Insurance: “Sexual molestation and physical abuse coverage is included.” Policies/certificates stating that “Sexual molestation and physical abuse coverage is not excluded” do not meet this requirement. 6.2.14 Commercial General Liability – Occurrence Form 6.2.14.1 Policy shall include bodily injury, property damage and broad form contractual liability coverage. a. The policy shall be endorsed to include coverage for physical/sexual abuse and molestation. b. The policy shall be endorsed to include the following additional insured language: "(_____), its subsidiary, parent, associated and/or affiliated entities, successors, or assigns, its elected officials, trustees, employees, agents, and volunteers shall be named as additional insureds with respect to SERIAL PH RFP 200234 Page 6 of 27 liability arising out of the activities performed by, or on behalf of the Contractor". 6.2.14.2 Minimum Limits: General Aggregate $4,000,000 Each Occurrence Limit $2,000,000 Personal/Advertising Injury Sexual Abuse/Molestation $1,000,000 $2,000,000 6.2.15 Certificates of Insurance: 6.2.15.1 Prior to Contract award, Contractor shall furnish the County with valid and complete certificates of insurance, or formal endorsements as required by the Contract in the form provided by the County, issued by Contractor’s insurer(s), as evidence that policies providing the required coverage, conditions and limits required by this Contract are in full force and effect. Such certificates shall identify this contract number and title. 6.2.15.2 In the event any insurance policy(ies) required by this Contract is(are) written on a claims made basis, coverage shall extend for two years past completion and acceptance of Contractor’s work or services and as evidenced by annual Certificates of Insurance. 6.2.15.3 If a policy does expire during the life of the Contract, a renewal certificate must be sent to County fifteen (15) calendar days prior to the expiration date. 6.2.16 Cancellation and Expiration Notice: Applicable to all insurance policies required within the Insurance Requirements of this Contract, Contractor’s insurance shall not be permitted to expire, be suspended, be canceled, or be materially changed for any reason without thirty (30) days prior written notice to Maricopa County. Contractor must provide to Maricopa County, within two (2) business days of receipt, if they receive notice of a policy that has been or will be suspended, canceled, materially changed for any reason, has expired, or will be expiring. Such notice shall be sent directly to Maricopa County Office of Procurement Services and shall be mailed or hand delivered to 320 West Lincoln Street, Phoenix, AZ 85003, or emailed to the Procurement Officer noted in the solicitation. 6.3 FORCE MAJEURE: 6.3.1 Neither party shall be liable for failure of performance, nor incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Contract if such delay or failure is caused by events, occurrences, or causes beyond the reasonable control and without negligence of the parties. Such events, occurrences, or causes will include Acts of God/Nature (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, riots, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, lockout, blockage, embargo, labor dispute, strike, interruption or failure of electricity or telecommunication service. 6.3.2 Each party, as applicable, shall give the other party notice of its inability to perform and particulars in reasonable detail of the cause of the inability. Each party must use best efforts to remedy the situation and remove, as soon as practicable, the cause of its inability to perform or comply. SERIAL PH RFP 200234 Page 7 of 27 6.3.3 The party asserting Force Majeure as a cause for non-performance shall have the burden of proving that reasonable steps were taken to minimize delay or damages caused by foreseeable events, that all non-excused obligations were substantially fulfilled, and that the other party was timely notified of the likelihood or actual occurrence which would justify such an assertion, so that other prudent precautions could be contemplated. 6.4 INSPECTION OF SERVICES: 6.4.1 The Contractor shall provide and maintain an inspection system acceptable to County covering the services under this Contract. Complete records of all inspection work performed by the Contractor shall be maintained and made available to County during Contract performance and for as long afterwards as the Contract requires. 6.4.2 County has the right to inspect and test all services called for by the Contract, to the extent practicable at all times and places during the term of the Contract. County shall perform inspections and tests in a manner that will not unduly delay the work. 6.4.3 If any of the services do not conform to Contract requirements, County may require the Contractor to perform the services again in conformity with Contract requirements, at no cost to the County. When the defects in services cannot be corrected by re-performance, County may: 6.4.3.1 Require the Contractor to take necessary action to ensure that future performance conforms to Contract requirements; and 6.4.3.2 Reduce the Contract price to reflect the reduced value of the services performed. 6.4.4 If the Contractor fails to promptly perform the services again or to take the necessary action to ensure future performance in conformity with Contract requirements, County may: 6.4.4.1 By Contract or otherwise, perform the services and charge to the Contractor, through direct billing or through payment reduction, any cost incurred by County that is directly related to the performance of such service; or 6.4.4.2 Terminate the Contract for default. 6.5 ORDERING AUTHORITY: Any request for purchase shall be accompanied by a valid purchase order, issued by Office of Procurement Services, a Purchase Order issued by the using Department or direction by a Certified Agency Procurement Aid (CAPA) with a Purchase Card for payment. 6.6 NO MINIMUM OR MAXIMUM PURCHASE OBLIGATION: 6.6.1 This Contract does not guarantee any minimum or maximum purchases will be made. Orders will only be placed under this Contract when the County identifies a need and proper authorization and documentation have been approved. 6.6.2 Contractors agree to accept verbal notification of cancellation of Purchase Orders from the County Procurement Officer with written notification to follow. Contractor specifically acknowledges to be bound by this cancellation policy. 6.7 PURCHASE ORDERS: County reserves the right to cancel Purchase Orders within a reasonable period of time after issuance. Should a Purchase Order be canceled, the County agrees to reimburse the Contractor for actual and documentable costs incurred by the Contractor in response to the Purchase Order. The SERIAL PH RFP 200234 Page 8 of 27 County will not reimburse the Contractor for any costs incurred after receipt of County notice of cancellation, or for lost profits, shipment of product prior to issuance of Purchase Order, etc. 6.8 SUSPENSION OF WORK: The Procurement Officer may order the Contractor, in writing, to suspend, delay, or interrupt all or any part of the work of this contract for the period of time that the Procurement Officer determines appropriate for the convenience of the County. No adjustment shall be made under this clause for any suspension, delay, or interruption to the extent that performance would have been so suspended, delayed, or interrupted by any other cause, including the fault or negligence of the Contractor. No request for adjustment under this clause shall be granted unless the claim, in an amount stated, is asserted in writing as soon as practicable after the termination of the suspension, delay, or interruption, but not later than the date of final payment under the Contract. 6.9 STOP WORK ORDER: The Procurement Officer may, at any time, by written order to the Contractor, require the Contractor to stop all, or any part, of the work called for by this contract for a period of ninety (90) calendar days after the order is delivered to the Contractor, and for any further period to which the parties may agree. The order shall be specifically identified as a stop work order issued under this clause. Upon receipt of the order, the Contractor shall immediately comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the order during the period of work stoppage. Within a period of 90 calendar days after a stop-work is delivered to the Contractor, or within any extension of that period to which the parties shall have agreed, the Procurement Officer shall either: 6.9.1 Cancel the stop work order; or 6.9.2 Terminate the work covered by the order as provided in the Default, or the Termination for Convenience clause of this Contract. 6.9.3 The Procurement Officer may make an equitable adjustment in the delivery schedule and/or Contract price, or otherwise, and the Contract shall be modified, in writing, accordingly, if the Contractor demonstrates that the stop work order resulted in an increase in costs to the Contractor. 6.10 TERMINATION FOR CONVENIENCE: Maricopa County may terminate the Contract for convenience by providing sixty (60) calendar days advance notice to the Contractor. 6.11 TERMINATION FOR DEFAULT: The County may, by written notice of default to the Contractor, terminate this Contract in whole or in part if the Contractor fails to: 6.11.1 Deliver the supplies or to perform the services within the time specified in this Contract or any extension; 6.11.2 Make progress, so as to endanger performance of this Contract; or 6.11.3 Perform any of the other provisions of this Contract. The County’s right to terminate this contract under these subparagraphs may be exercised if the Contractor does not cure such failure within ten (10) business days (or more if authorized in writing by the County) after receipt of the notice from the Procurement Officer specifying the failure. 6.12 STATUTORY RIGHT OF CANCELLATION FOR CONFLICT OF INTEREST: SERIAL PH RFP 200234 Page 9 of 27 Notice is given that pursuant to A.R.S. § 38-511 the County may cancel any Contract without penalty or further obligation within three years after execution of the Contract, if any person significantly involved in initiating, negotiating, securing, drafting or creating the Contract on behalf of the County is at any time while the Contract or any extension of the Contract is in effect, an employee or agent of any other party to the Contract in any capacity or consultant to any other party of the Contract with respect to the subject matter of the Contract. Additionally, pursuant to A.R.S § 38-511 the County may recoup any fee or commission paid or due to any person significantly involved in initiating, negotiating, securing, drafting or creating the Contract on behalf of the County from any other party to the Contract arising as the result of the Contract. 6.13 CONTRACTOR LICENSE REQUIREMENT: 6.13.1 The Contractor shall procure all permits, insurance, licenses and pay the charges and fees necessary and incidental to the lawful conduct of his/her business, and as necessary complete any required certification requirements, required by any and all governmental or non-governmental entities as mandated to maintain compliance with and in good standing for all permits and/or licenses. The Contractor shall keep fully informed of existing and future trade or industry requirements, Federal, State and Local laws, ordinances, and regulations which in any manner affect the fulfillment of a Contract and shall comply with the same. Contractor shall immediately notify both Office of Procurement Services and the Department of any and all changes concerning permits, insurance or licenses. 6.14 LICENSURE/CERTIFICATION 6.14.1 Contractor shall comply with all applicable provisions of law and other rules and regulations of any and all governmental, accrediting and/or regulatory authorities relating to the licensure and regulation of health care providers and physicians. 6.14.2 Upon request, Contractor agrees to allow County, to the extent permitted by law, access to credentials of Qualified Physicians and Qualified Providers who are providing services to Department under the terms and conditions of this Contract. 6.14.3 Contractor expressly agrees that it shall comply with all rules, regulations, orders, standards and interpretations promulgated pursuant to the Occupational Safety and Health Act of 1970 (and to the Occupational and Safety Health Act of the State of Arizona), including but not limited to training, provision of personal protective equipment, provision of post-exposure prophylaxis, adherence to appropriate lock out/tag out procedures, and providing all notices, material safety data sheets, labels, etc. required by the right-to-know-standard. 6.15 SUBCONTRACTING: 6.15.1 The Contractor may not assign to another contractor or subcontract to another party for performance of the terms and conditions hereof without the written consent of the County. All correspondence authorizing subcontracting must reference the Contract Number and identify the job project. 6.15.2 The subcontractor’s rate for the job shall not exceed that of the Prime Contractor’s rate, as bid in the pricing section, unless the Prime Contractor is willing to absorb any higher rates or the County has approved the increase. The subcontractor’s invoice shall be invoiced directly to the Prime Contractor, who in turn shall pass-through the costs to the County, without mark-up. A copy of the subcontractor’s invoice must accompany the Prime Contractor’s invoice. 6.16 AMENDMENTS: All amendments to this Contract shall be in writing and approved/signed by both parties. The designated Procurement Officer shall be responsible for approving all amendments for Maricopa County. 6.17 ADDITIONS/DELETIONS OF REQUIREMENTS: SERIAL PH RFP 200234 Page 10 of 27 The County reserves the right to add and/or delete materials and services to a Contract. If a service requirement is deleted, payment to the Contractor will be reduced proportionately, to the amount of service reduced in accordance with the bid price. If additional materials or services are required from a Contract, prices for such additions will be negotiated between the Contractor and the County. 6.18 STRICT COMPLIANCE: Acceptance by County of a performance that is not in strict compliance with the terms of the Contract shall not be deemed to be a waiver of strict compliance with respect to all other terms of the Contract. 6.19 VALIDITY: The invalidity, in whole or in part, of any provision of this Contract shall not void or affect the validity of any other provision of the Contract. 6.20 SEVERABILITY: The removal, in whole or in part, of any provision of this Contract shall not void or affect the validity of any other provision of this Contract. 6.21 RIGHTS IN DATA: The County shall have the use of data and reports resulting from a Contract without additional cost or other restriction except as may be established by law or applicable regulation. Each Party shall supply to the other Party, upon request, any available information that is relevant to a Contract and to the performance thereunder. 6.22 NON-DISCRIMINATION: Contractor agrees to comply with all provisions and requirements of Arizona Executive Order 2009- 09 including flow down of all provisions and requirements to any subcontractors. Executive Order 2009-09 supersedes Executive order 99-4 and amends Executive order 75-5 and may be viewed and downloaded at the Arizona State Library Research website (http://azmemory.azlibrary.gov/cdm/singleitem/collection/execorders/id/680/rec/1) which is hereby incorporated into this contract as if set forth in full herein. During the performance of this Contract, Contractor shall not discriminate against any employee, client or any other individual in any way because of that person’s age, race, creed, color, religion, sex, disability or national origin. 6.23 CERTIFICATION REGARDING DEBARMENT AND SUSPENSION: 6.23.1 The undersigned (authorized official signing on behalf of the Contractor) certifies to the best of his or her knowledge and belief that the Contractor, it’s current officers and directors; 6.23.1.1 are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from being awarded any contract or grant by any United States Department or Agency or any state, or local jurisdiction; 6.23.1.2 have not within three (3) year period preceding this Contract; 6.23.1.2.1 been convicted of fraud or any criminal offense in connection with obtaining, attempting to obtain, or as the result of performing a government entity (Federal, State or local) transaction or contract; and 6.23.1.2.2 been convicted of violation of any Federal or State antitrust statues or conviction for embezzlement, theft, forgery, bribery, falsification or SERIAL PH RFP 200234 Page 11 of 27 destruction of records, making false statements, or receiving stolen property regarding a government entity transaction or contract; 6.23.1.2.3 are not presently indicted or criminally charged by a government entity (Federal, State or local) with commission of any criminal offenses in connection with obtaining, attempting to obtain, or as the result of performing a government entity public (Federal, State or local) transaction or contract; and are not presently facing any civil charges from any governmental entity regarding obtaining, attempting to obtain, or from performing any governmental entity contract or other transaction; and have not within a three (3) year period preceding this Contract had any public transaction (Federal, State or local) terminated for cause or default. 6.23.1.3 If any of the above circumstances described in the paragraph are applicable to the entity submitting a bid for this requirement, include with your bid an explanation of the matter including any final resolution. 6.23.2 The Contractor shall include, without modification, this clause in all lower tier covered transactions (i.e. transactions with subcontractors) and in all solicitations for lower tier covered transactions related to this Contract. 6.24 VERIFICATION REGARDING COMPLIANCE WITH A.R.S. §41-4401 AND FEDERAL IMMIGRATION LAWS AND REGULATIONS: 6.24.1 By entering into the Contract, the Contractor warrants compliance with the Immigration and Nationality Act (INA using e-verify) and all other Federal immigration laws and regulations related to the immigration status of its employees and A.R.S. §23-214(A). The Contractor shall obtain statements from its subcontractors certifying compliance and shall furnish the statements to the Procurement Officer upon request. These warranties shall remain in effect through the term of the Contract. The Contractor and its subcontractors shall also maintain Employment Eligibility Verification forms (I-9) as required by the Immigration Reform and Control Act of 1986, as amended from time to time, for all employees performing work under the Contract and verify employee compliance using the E-verify system and shall keep a record of the verification for the duration of the employee’s employment or at least three (3) years, whichever is longer. I-9 forms are available for download at USCIS.GOV. 6.24.2 The County retains the legal right to inspect Contractor and subcontractor employee documents performing work under this Contract to verify compliance with paragraph 6.24.1 of this Section. Contractor and subcontractor shall be given reasonable notice of the County’s intent to inspect and shall make the documents available at the time and date specified. Should the County suspect or find that the Contractor or any of its subcontractors are not in compliance, the County will consider this a material breach of the Contract and may pursue any and all remedies allowed by law, including, but not limited to; suspension of work, termination of the Contract for default, and suspension and/or debarment of the Contractor. All costs necessary to verify compliance are the responsibility of the Contractor. 6.25 INFLUENCE: As prescribed in MC1-1203 of the Maricopa County Procurement Code, any effort to influence an employee or agent to breach the Maricopa County Ethical Code of Conduct or any ethical conduct may be grounds for Disbarment or Suspension under MC1-902. An attempt to influence includes, but is not limited to: 6.25.1 A Person offering or providing a gratuity, gift, tip, present, donation, money, entertainment or educational passes or tickets, or any type of valuable contribution or subsidy, SERIAL PH RFP 200234 Page 12 of 27 6.25.2 That is offered or given with the intent to influence a decision, obtain a contract, garner favorable treatment, or gain favorable consideration of any kind. If a Person attempts to influence any employee or agent of Maricopa County, the Chief Procurement Officer, or his designee, reserves the right to seek any remedy provided by the Maricopa County Procurement Code, any remedy in equity or in the law, or any remedy provided by this contract. 6.26 CONTRACTOR EMPLOYEE WHISTLEBLOWER RIGHTS AND REQUIREMENT TO INFORM EMPLOYEES OF WHISTLERBLOWER RIGHTS: 6.26.1 The Parties agree that this Contract and employees working on this Contract will be subject to the whistleblower rights and remedies in the pilot program on Contractor employee whistleblower protections established at 41 U.S.C. § 4712 by section 828 of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112–239) and section 3.908 of the Federal Acquisition Regulation; 6.26.2 Contractor shall inform its employees in writing, in the predominant language of the workforce, of employee whistleblower rights and protections under 41 U.S.C. § 4712, as described in section 3.908 of the Federal Acquisition Regulation. Documentation of such employee notification must be kept on file by Contractor and copies provided to County upon request. 6.26.3 Contractor shall insert the substance of this clause, including this paragraph, in all subcontracts over the simplified acquisition threshold ($150,000 as of September 2013). 6.27 UNIFORM ADMINISTRATIVE REQUIREMENTS: By entering into this Contract the Contractor agrees to comply with all applicable provisions of Title 2, Subtitle A, Chapter II, PART 200—UNIFORM ADMINISTRATIVE REQUIREMENTS, COST PRINCIPLES, AND AUDIT REQUIREMENTS FOR FEDERAL AWARDS contained in Title 2 C.F.R. § 200 et seq. 6.28 ACCESS TO AND RETENTION OF RECORDS FOR THE PURPOSE OF AUDIT AND/OR OTHER REVIEW: 6.28.1 In accordance with section MCI 371 of the Maricopa County Procurement Code the Contractor agrees to retain (physical or digital copies of) all books, records, accounts, statements, reports, files, and other records and back-up documentation relevant to this Contract for six (6) years after final payment or until after the resolution of any audit questions which could be more than six (6) years, whichever is latest. The County, Federal or State auditors and any other persons duly authorized by the Department shall have full access to, and the right to examine, copy and make use of, any and all said materials. 6.28.2 If the Contractor’s books, records , accounts, statements, reports, files, and other records and back-up documentation relevant to this Contract are not sufficient to support and document that requested services were provided, the Contractor shall reimburse Maricopa County for the services not so adequately supported and documented. 6.29 AUDIT DISALLOWANCES: If at any time it is determined by the County that a cost for which payment has been made is a disallowed cost, the County shall notify the Contractor in writing of the disallowance. The course of action to address the disallowance shall be at sole discretion of the County, and may include either an adjustment to future invoices, request for credit, request for a check or a deduction from current invoices submitted by the Contractor equal to the amount of the disallowance, or to require reimbursement forthwith of the disallowed amount by the Contractor by issuing a check payable to Maricopa County. SERIAL PH RFP 200234 Page 13 of 27 6.30 OFFSET FOR DAMAGES: In addition to all other remedies at Law or Equity, the County may offset from any money due to the Contractor any amounts Contractor owes to the County for damages resulting from breach or deficiencies in performance of the Contract. 6.31 CONFIDENTIAL INFORMATION: Any information obtained in the course of performing this Contract may include information that is proprietary or confidential to the County. This provision establishes the Contractor’s obligation regarding such information. The Contractor shall establish and maintain procedures and controls that are adequate to assure that no information contained in its records and/or obtained from the County or from others in carrying out its functions (services) under the Contract shall be used by or disclosed by it, its agents, officers, or employees, except as required to efficiently perform duties under the Contract. The Contractor’s procedures and controls at a minimum must be the same procedures and controls it uses to protect its own proprietary or confidential information. If, at any time during the duration of the Contract, the County determines that the procedures and controls in place are not adequate, the Contractor shall institute any new and/or additional measures requested by the County within fifteen (15) calendar days of the written request to do so. Any requests to the Contractor for County proprietary or confidential information s shall be referred to the County for review and approval, prior to any dissemination. 6.32 PROTECTED HEALTH INFORMATION: In collecting, maintaining, using and disclosing information, contractor shall comply with all applicable federal and state laws and regulations which protect confidential health information, including, but not limited to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 C.F.R. Part 2, A.R.S. §§ 18-551 (Data Security Breaches), A.R.S. §§ 12-2291 et seq. (Confidentiality of Medical Records), and A.R.S. §§ § 36-661 et seq. (Confidentiality of Communicable Disease Information). Contractor shall not act or fail to act in a way that would cause MCDPH to be noncompliant with applicable federal or state laws or regulations which protect confidential health information. Contractor shall cooperate to mitigate, to the extent practicable, any harmful effect that is known to it of an unlawful or unauthorized use or disclosure of confidential health information. To ensure the confidentiality of confidential health information, contractor shall be fully compliant, through automation and manual processes, with the standards for electronic transactions under HIPAA. Contractor shall execute, and cause employees, subcontractors, and agents to execute, all applicable confidentiality agreements and SARA Alert System user access agreements, if deemed necessary by MCDPH. Any system breaches, confirmed or suspected, shall be reported by Contractor to the MCDPH within 24 hours. 6.33 PUBLIC RECORDS: Under Arizona law, all Offers submitted and opened are public records and must be retained by the Records Manager at the Office of Procurement Services. Offers shall be open to public inspection and copying after Contract award and execution, except for such Offers or sections thereof determined to contain proprietary or confidential information by the Office of Procurement Services. If an Offeror believes that information in its Offer or any resulting Contract should not be released in response to a public record request under Arizona law, the Offeror shall indicate the specific information deemed confidential or proprietary and submit a statement with its offer detailing the reasons that the information should not be disclosed. Such reasons shall include the specific harm or prejudice which may arise from disclosure. The Records Manager of the Office of Procurement Services shall determine whether the identified information is confidential pursuant to the Maricopa County Procurement Code. 6.34 PRICES: SERIAL PH RFP 200234 Page 14 of 27 Contractor warrants that prices extended to County under this Contract are no higher than those paid by any other customer for these or similar services. 6.35 INTEGRATION: This Contract represents the entire and integrated agreement between the parties and supersedes all prior negotiations, proposals, communications, understandings, representations, or agreements, whether oral or written, express or implied. 6.36 RELATIONSHIPS: 6.36.1 In the performance of the services described herein, the Contractor shall act solely as an independent contractor, and nothing herein or implied herein shall at any time be construed as to create the relationship of employer and employee, co-employee, partnership, principal and agent, or joint venture between the County and the Contractor. 6.36.2 The County reserves the right of final approval on proposed staff for all Task Orders. Also, upon request by the County, the Contractor will be required to remove any employees working on County projects and substitute personnel based on the discretion of the County within two (2) business days, unless previously approved by the County. 6.37 GOVERNING LAW: This Contract shall be governed by the laws of the State of Arizona. Venue for any actions or lawsuits involving this Contract will be in Maricopa County Superior Court, Phoenix, Arizona. 6.38 ORDER OF PRECEDENCE: In the event of a conflict in the provisions of this Contract and Contractor’s license agreement, if applicable, the terms of this Contract shall prevail. 6.39 INCORPORATION OF DOCUMENTS: The following are to be attached to and made part of this Contract: 6.39.1 Exhibit A, Pricing; 6.39.2 Exhibit B, Scope of Work; 6.39.3 Exhibit C, Business Associate Agreement NOTICES: All notices given pursuant to the terms of this Contract shall be addressed to: For County: Maricopa County Public Health ATTN: Cheryl Bucalo 4041 N. Central Avenue, #1400 Phoenix, AZ 85012 (602) 506-6886 Cheryl.Bucalo@Maricopa.gov SERIAL PH RFP 200234 Page 15 of 27 For Contractor: SERIAL PH RFP 200234 Page 16 of 27 IN WITNESS WHEREOF, this Contract is executed on the date set forth above. CONTRACTOR AUTHORIZED SIGNATURE PRINTED NAME AND TITLE ADDRESS DATE MARICOPA COUNTY CHAIRMAN, BOARD OF SUPERVISORS DATE ATTESTED: CLERK OF THE BOARD DATE APPROVED AS TO FORM: DEPUTY COUNTY ATTORNEY DATE SERIAL PH RFP 200234 Page 17 of 27 EXHIBIT A: Pricing Sheet SERIAL PH RFP 200234 Page 18 of 27 EXHIBIT B Scope of Work SERIAL PH RFP 200234 Page 19 of 27 EXHIBIT C MARICOPA COUNTY By and Through its Department of Public Health (MCDPH) BUSINESS ASSOCIATE AGREEMENT This Agreement sets out the responsibilities and obligations of_________________________, (“Business Associate” or “Associate”) as a business associate of MARICOPA COUNTY, a covered entity, under the Health Insurance Portability and Accountability Act (“HIPAA”), the Health Information Technology for Economic and Clinical Health (“HITECH”) Act, and pursuant to the Contract or Engagement Letter between Associate and MARICOPA COUNTY. MARICOPA COUNTY may make available and/or transfer to Associate Protected Health Information (“PHI”) of individuals in conjunction with Services, which Associate will use or disclose only in accordance with this Agreement. Associate and MARICOPA COUNTY agree to the terms and conditions of this Agreement in order to comply with the use and handling of PHI under the HIPAA Standards for Privacy of Individually Identifiable Health Information, 45 C.F.R. Part 160 and Part 164, Subpart E (“Privacy Standards”) and the HIPAA Security Standards, 45 C.F.R. Part 160 and Part 164, Subpart C (“Security Standards”), both as amended from time to time. Unless otherwise provided, all capitalized terms in this Agreement will have the same meaning as provided under the Privacy Standards and Security Standards. Associate and MARICOPA COUNTY will comply with the terms of this Agreement for the duration of the Contract or Engagement Letter and for such other continuing periods as provided in this Agreement. Upon the compliance date of any final regulation or amendment to final regulation promulgated by the Secretary of Health and Human Services that affects Associate’s use or disclosure of PHI, the parties agree to take such reasonable action as is necessary to amend this Agreement in order for MARICOPA COUNTY to comply with such final regulation or amendment to final regulation. Definitions for terms in this Agreement: 1. Business Associate or Associate means an entity that performs or assists in the performance of a function on behalf of a Covered Entity, which involves the use, or disclosure of Individually Identifiable Health Information as defined in 45 C.F.R. § 160.103. In addition, an Associate can be an entity that provides data transmission services to a Covered Entity, is more than a mere conduit of information, and allows a Covered Entity to access the maintained information in a manner beyond a random or infrequent basis. The terms “Business Associate”, “Associate” and “Contractor” are synonymous. Notwithstanding this definition, if Contractor does not have access to or create Protected Health Information under this Contract, Contractor is not an Associate, and the terms of this Agreement do not apply to Contractor. 2. Contractors of Business Associate means a person or an entity to whom an Associate delegates a function, activity, or service that the Associate has agreed to perform for a Covered Entity. A contractor of an Associate which creates, receives, maintains, or transmits personal health information on behalf of the business associate is itself a Business Associate and therefore will comply with the terms of this Agreement. For purposes of this Agreement the term “Contractor” includes the Contractor, its employees, its subcontractors and its agents. SERIAL PH RFP 200234 Page 20 of 27 3. Protected Health Information (“PHI”) means the health information that is created or received by a Covered Entity; and relates to the physical condition, mental health or other health condition of an Individual, or to the provision of health care to the Individual (including but not limited to the payment for such health care); and identifies or can be used to identify the Individual as defined in 45 C.F.R. § 160.103. 4. Individual shall have the meaning set forth in 45 CFR §160.103, including a person who is the subject of the Protected Health Information, and shall include an individual or entity who qualifies as a personal, legal representative of the person, as the context requires. 5. Privacy Rule shall mean the Standards for Privacy of Individually Identifiable Health Information at 45 CFR Parts 160 and 164, Subparts A and E, as may be amended, modified or superseded, from time to time. 6. Security Rule shall mean the Standards for Security of Individually Identifiable Electronic Health Information at 45 CFR Parts 160 and 164, Subparts A, C and E, as may be amended, modified or superseded, from time to time. 7. Breach shall mean the acquisition, access, use or disclosure of Protected Health Information in a manner not permitted by the HIPAA Privacy Rule, that compromises the security or privacy of the Protected Health Information as defined, and subject to the exception given to such term in 45 C.F.R. § 164.402. 8. Breach Notification Rule shall mean the interim final rule related to breach notification for unsecured protected health information at 45 C.F.R. Parts 160 and 164. 9. Covered Entity shall have the meaning given to such term in 45 C.F.R. § 160.103. 10. Designated Record Set shall have the meaning given to such term under the Privacy Rule at 45 C.F.R. § 164.501. 11. Security Incident shall have the meaning given to such phrase under the Security Rule at 45 C.F.R. § 164.304. 12. Unsecured PHI shall have the meaning given to such phrase under the Breach Notification Rule at 45 C.F.R. § 164.402. 13. Electronic Protected Health Information or ePHI shall have the same meaning given to such term under the Security Rule, including, but not limited to, 45 C.F.R. § 160.103. 14. Electronic Media shall have the same meaning given to such term in 45 C.F.R. § 160.103. 15. Health Information Technology for Economic and Clinical Health (HITECH) Act, as codified at 42 U.S.C. §§ 17921-17954. 16. Secretary shall mean the Secretary of the Department of Health and Human Services or his or her designee. It is agreed by and between the parties that: 1. Uses and Disclosures of Protected Health Information. Associate will use and disclose PHI only for those purposes necessary to perform its duties, obligations and functions under the Contract, or as otherwise expressly permitted in this Agreement or as required by other law. a. Associate will not use or further disclose any PHI in violation of this Agreement. b. Associate may use PHI to perform data aggregation services as permitted by 45 C.F. R. § 164.504(e) (2) (i) (B). SERIAL PH RFP 200234 Page 21 of 27 c. Associate agrees that anytime it provides PHI received from MARICOPA COUNTY to a Contractor, its employees, subcontractor, or agent to perform Services for MARICOPA COUNTY, Associate first will enter into a contract with such Contractor, employees, subcontractor or agent that contains the same terms, conditions, and restrictions on the use and disclosure of PHI as contained in this Agreement. d. If Associate maintains a Designated Record Set, MARICOPA COUNTY will provide Associate with copies of applicable policies and procedures, which the Associate will comply with as related to an individual’s right to access PHI; request an amendment to PHI; request confidential communications of PHI; or request an accounting of disclosures of PHI. 2. Associate Use or Disclosure of Protected Health Information for its Own Purposes. Associate may use or disclose PHI received from MARICOPA COUNTY for Associate’s management and administration, or to carry out Associate’s legal and contractual responsibilities. Associate may disclose PHI received from MARICOPA COUNTY to a third party for such purposes only if: a. The disclosure is required by law; or b. Associate secures written assurance from the receiving party that the receiving party will: (i) hold the PHI confidentially; (ii) use or disclose the PHI only as required by law or for the purposes for which it was disclosed to the recipient; and (iii) notify the Associate of any breaches in the confidentiality of the PHI. c. Associate may use and disclose de-identified health information, if (i) the use is disclosed to MARICOPA COUNTY and permitted by MARICOPA COUNTY in its sole discretion, (ii) that the de-identification is in compliance with 45 C.F.R. § 164.502(d), and (iii) the de-identified health information meets the standard and implementation specifications for de-identification under 45 C.F.R. § 164.514(a) and (b). d. Associate shall use and disclose PHI only to the extent reasonably necessary to accomplish the intended purpose of such PHI. 3. Safeguards. Associate will implement and maintain appropriate safeguards to prevent any use or disclosure of PHI not otherwise permitted in this Agreement. a. Associate also will implement administrative, physical and technical safeguards to protect the confidentiality, integrity, and availability of any electronic protected health information (“e-PHI”), if any, that Associate creates, receives, maintains, and transmits on behalf of MARICOPA COUNTY. b. Upon request of MARICOPA COUNTY, Associate will provide evidence to MARICOPA COUNTY that these safeguards are in place and are properly managed. 4. Reports of Improper Use or Disclosure of Secure or Unsecure Protected Health Information and of Security Incidents and Breaches. Associate will report in writing to MARICOPA COUNTY any use or disclosure of PHI, including any breach, not permitted by the contract between Associate and MARICOPA COUNTY within five (5) days of Associate’s learning of such use, disclosure or breach or within five (5) days following the exercise of reasonable diligence would have known of the improper use, disclosure, or breach. 5. Mitigation of potential harmful effects. Associate shall mitigate all potential harmful effects of a use or disclosure of Protected Health Information by Business Associate in violation of the requirements of this Agreement. Immediately following the Associate’s discovery of a Breach (or upon the Associate’s reasonable belief that a Breach has occurred), Associate shall provide MARICOPA COUNTY with sufficient information to permit MARICOPA COUNTY to comply with the Breach notification requirements set forth at 45 C.F.R. §164.400 et seq. a. Specifically, if the following information is known to (or can be reasonably obtained by) the Associate, Associate will provide to MARICOPA COUNTY all available information that SERIAL PH RFP 200234 Page 22 of 27 MARICOPA COUNTY is required to include in its notification to the individual pursuant to the Breach Notification Rule, including but not limited to: i. contact information for individuals who were or who may have been impacted by the Breach (e.g., first and last name, mailing address, street address, phone number, email address); ii. a brief description of the circumstances of the Breach, including the date of the Breach, the date of discovery of the Breach, and the identity of who accessed and received the Unsecured PHI; iii. a description of the types of unsecured PHI involved in the Breach (e.g., names, social security number, date of birth, address(s), account numbers of any type, disability codes, diagnostic and/or billing codes and similar information); iv. a brief description of what the Associate has done or is doing to investigate the Breach, mitigate harm to the individual impacted by the Breach, and protect against future Breaches; and v. contact information for a liaison appointed by the Associate with whom MARICOPA COUNTY may ask questions and learn additional information concerning the Breach. b. Following a Breach, Associate will have a continuing duty to inform MARICOPA COUNTY of new information learned by Associate regarding the Breach, including but not limited to the information described in items (1) through (5), above. c. Associate also will report in writing to MARICOPA COUNTY any Security Incident (successful or unsuccessful) of which Associate becomes aware within five (5) business days of Associate learning of such use or disclosure. Specifically, Associate will report to MARICOPA COUNTY any unauthorized access, use, disclosure, modification, or destruction of e-PHI or interference with system operations in an information system containing e-PHI of which Associate becomes aware, provided that: i. such reports will be provided only as frequently as the parties mutually agree, but no more than once per month; and ii. if the definition of “Security Incident” under the Security Standards is amended to remove the requirement for reporting “unsuccessful” attempts to use, disclose, modify or destroy e-PHI, the portion of this Section 5 addressing the reporting of unsuccessful, unauthorized attempts will no longer apply as of the effective date of such amendment. 6. Obligations Regarding Associate Personnel. Associate will appropriately inform all of its employees, agents, representatives, members of its workforce, and Contractors, its employees, subcontractors, or agents of Associate (“Associate Personnel”), whose services may be used to satisfy Associate’s obligations under the Contract and this Agreement of the terms of this Agreement. Associate represents and warrants that the Associate Personnel are under legal obligation to Associate, by contract or otherwise, sufficient to enable Associate to fully comply with the provisions of this Agreement. Associate will maintain a system of sanction for any Associate Personnel who violates this Agreement. 7. Access to Protected Health Information. a. MARICOPA COUNTY Access. Within five (5) business days of a request by MARICOPA COUNTY for access to PHI received from MARICOPA COUNTY, Associate will make requested PHI available to MARICOPA COUNTY. b. Patient Access. If a Patient requests access to PHI directly from Associate, Associate will within five (5) business days forward such request in writing to MARICOPA COUNTY. MARICOPA COUNTY will be responsible for making all determinations regarding the grant or SERIAL PH RFP 200234 Page 23 of 27 denial of a Patient’s request for PHI and Associate will make no such determinations. Only MARICOPA COUNTY will release PHI to the Patient pursuant to such a request. 8. Amendment of Protected Health Information. a. MARICOPA COUNTY Request. Within five (5) business days of receiving a request from MARICOPA COUNTY to amend an individual’s PHI received from MARICOPA COUNTY, Associate will provide such information to MARICOPA COUNTY for amendment. Alternatively, if MARICOPA COUNTY request includes specific information to be included in the PHI as an amendment, Associate will incorporate such amendment within five (5) business days of receipt of the MARICOPA COUNTY request. b. Individual Request. If an individual makes a request for amendment directly to Associate, Associate will forward within five business days such request in writing to MARICOPA COUNTY. MARICOPA COUNTY will be responsible for making all determinations regarding amendments to PHI and Associate will make no such determinations. 9. Accounting of Disclosures; Requests for Disclosure. a. Disclosure Records. Associate will keep a record of any disclosure of PHI received from MARICOPA COUNTY that Associate makes to its employees, subcontractors, and agents, or other third parties other than: (1) Disclosures to health care providers to assist in the treatment of patients; (2) Disclosures to others to assist MARICOPA COUNTY in paying claims; (3) Disclosures to others to assist MARICOPA COUNTY in conducting its health care operations, as defined in 45 C.F.R. § 164.501; or (4) Disclosures made pursuant to an individual’s Authorization. Associate will maintain this disclosure record for six (6) years from the termination of this Agreement. Associate also agrees to maintain necessary and sufficient documentation of Disclosures of Protected Health Information as would be required for MARICOPA COUNTY to respond to a request by an individual for an accounting of Disclosures, in accordance with 45 CFR 164.528. b. Data Regarding Disclosures. For each disclosure for which it is required to keep a record under paragraph 8(a), Associate will record and maintain the following information: (1) The date of disclosure; (2) The name of the entity or person who received the PHI, and, the address of such entity or person, if known. (3) A description of the PHI disclosed; and (4) A brief statement of the purpose of the disclosure. c. Provision to MARICOPA COUNTY. Associate will provide to MARICOPA COUNTY its record of disclosures under paragraph 8(a), if any, within thirty days of each disclosure. Within five business days of receiving a notice from MARICOPA COUNTY of an individual’s request for an accounting, Associate also will provide to MARICOPA COUNTY its disclosure record. d. Patient Request to Associate. If a Patient requests and accounting of disclosures directly from Associate, Associate will forward the request to MARICOPA COUNTY within five (5) business days of Associate’s receipt of the request and will make its records of disclosures available to MARICOPA COUNTY as otherwise provided in this Section. MARICOPA COUNTY will be responsible to prepare and for delivery of the records of disclosure to the Patient. Associate will not provide an accounting of its disclosure directly to the Individual. SERIAL PH RFP 200234 Page 24 of 27 10. Notice of Privacy Practices. MARICOPA COUNTY shall provide Associate a copy of its Notice of Privacy Practices (“Notice”) in accordance with 45 C.F.R. § 164.520 as well as any changes to the Notice. If MARICOPA COUNTY’ Notice specifically affects Associate’s use or disclosure of PHI, MARICOPA COUNTY shall inform Associate of the specific limitations. Associate shall abide by the limitations of MARICOPA COUNTY’ Notice that affects its use or disclosure of PHI of which it has been specifically informed. Any use or disclosure permitted by this Agreement may be amended by changes to MARICOPA COUNTY’ Notice if MARICOPA COUNTY specifically informs Associate of the amendment: provided, however, that the amended Notice shall not affect permitted uses and disclosures on which Associate relied prior to receiving notice of such amended Notice. 11. Access to Books and Records. a. MARICOPA COUNTY Access. Associate will, within five (5) business days of MARICOPA COUNTY written request, make available during normal business hours at Associate’s offices, all records, books, agreements, policies and procedures relating to the use or disclosure of PHI received from MARICOPA COUNTY for the purpose of allowing MARICOPA COUNTY or its agents or auditors to determine Associate’s compliance with this Agreement. b. Government Access. Associate will make its internal practices, books, and records relating to the use and disclosure of PHI received from, or created or received by Associate on behalf of, MARICOPA COUNTY available to the Secretary of the Department of Health and Human Services to the extent required for determining compliance with the Privacy Standards. Notwithstanding this provision, no attorney-client, accountant-client or other legal privilege will be deemed waived by Associate or MARICOPA COUNTY as a result of this Section. 12. Termination. MARICOPA COUNTY may immediately terminate the Contract, if any and this Agreement upon written notice to Associate if MARICOPA COUNTY determines that the Associate or subcontractor(s) or agent(s) of Associate has breached a material term of this Agreement. Alternatively, MARICOPA COUNTY may elect to provide Associate with written notice of Associate’s or subcontractor(s)’ or agent(s)’ of Associate breach of any term or condition of this Agreement and afford Associate the opportunity to cure the breach to the satisfaction of MARICOPA COUNTY within thirty (30) days of the date of such notice. If Associate fails to timely cure the breach, as determined by MARICOPA COUNTY at its sole discretion, MARICOPA COUNTY may terminate the Contract and this Agreement. 13. Return or Destruction of Protect Health Information. a. Return of PHI; Destruction. Within thirty (30) days of termination of the Contract or this Agreement, Associate will return to MARICOPA COUNTY all PHI received from MARICOPA COUNTY or created or received by Associate on behalf of MARICOPA COUNTY that Associate maintains in any form or format. Associate will not maintain or keep in any form or format any portion of such PHI. Alternatively, Associate may, upon MARICOPA COUNTY written consent, destroy all such PHI and provide written documentation of such destruction. The requirement to return or destroy such PHI will apply to all agents or subcontractors of Associate. Associate will be responsible for recovering any PHI from such agents or subcontractors. If Associate cannot obtain the PHI from any agent or subcontractor, Associate will so notify MARICOPA COUNTY and will require that such agents or subcontractors directly return PHI to MARICOPA COUNTY or otherwise destroy such PHI, subject to the terms of this Section. b. Alternative Measures. If Associate believes that returning or destroying PHI at the termination of the Contract or this Agreement is infeasible, it will provide written notice to MARICOPA COUNTY within five (5) business days of the effective date of termination of this Agreement. Such notice will set forth the circumstances that Associate believes makes the return or destruction of PHI infeasible and the alternative measures that Associate recommends for assuring the continued confidentiality and security of the PHI. MARICOPA COUNTY promptly will notify Associate of whether it agrees that the return or destruction of PHI is infeasible. If MARICOPA COUNTY agrees that return or destruction of PHI is infeasible, Associate agrees SERIAL PH RFP 200234 Page 25 of 27 to extend all protections, limitations and restrictions of this Agreement to Associate’s use or disclosure of PHI retained after termination of this Agreement and to limit further uses or disclosures to those purposes that make the return or destruction of the PHI infeasible. Any such extended protections, limitations and restrictions will apply to any agents or subcontractors of Associate for whom return or destruction of PHI is determined by MARICOPA COUNTY to be infeasible. If MARICOPA COUNTY does not agree that the return or destruction of PHI from Associate or its agents or subcontractors is infeasible, MARICOPA COUNTY will provide Associate with written notice of its decision, and Associate, its agents and subcontractors will proceed with the return or destruction of the PHI pursuant to the terms of this Section within fifteen (15) days of the date of MARICOPA COUNTY notice. 14. Restrictions on Use or Disclosure of Protected Health Information. If MARICOPA COUNTY advises Associate of any changes in, or restrictions to, the permitted use or disclosure of PHI received from MARICOPA COUNTY, Associate will restrict the use or disclosure of such PHI consistent with the MARICOPA COUNTY instructions. 15. Mitigation Procedures. Associate agrees to have procedures in place for mitigating, to the maximum extent practicable, any deleterious effect from the use or disclosure of PHI received from MARICOPA COUNTY in a manner contrary to this Agreement or the Privacy Standards. 16. Compliance with the HITECH Act. Associate will comply with the requirements of Title XII, Subtitle D of the Health Information Technology for Economic and Clinical Health (HITECH) Act, codified at 42 U.S.C. §§ 17921-17954, which are applicable to Associates, and will comply with all regulations issued by the Department of Health and Human Services (HHS) to implement these referenced statutes, as of the date by which Associates are required to comply with such referenced statutes and HHS regulations. a. Associate will also comply with Section 13402 of the HITECH Act, codified at 42 U.S.C. § 17932, and with all regulations issued by HHS to implement this statute, as of the date by which Associates are required to comply with such referenced statutes and HHS regulations. Associate will make a report to the MARICOPA COUNTY of any breach of unsecured protected health information, as required by 42 U.S.C. § 17932(b), within five (5) business days of Associate’s discovery of the breach. Associate will indemnify MARICOPA COUNTY for any reasonable expenses MARICOPA COUNTY incurs in notifying individuals of a breach caused by Associate or its subcontractors or agents. 17. Miscellaneous. a. Compliance with Laws. 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 ensure compliance with such developments. Should such developments occur, and upon either Party’s good faith request, the other Party agrees to enter good faith negotiations concerning the terms of an amendment to this Agreement. b. Construction of Terms. The terms of this Agreement will be construed in light of any applicable interpretation or guidance on the Privacy Standards and Security Standards issued by the Department of Health and Human Services and other applicable state or federal laws, rules and regulations as amended from time to time. c. No Third-Party Beneficiaries. Nothing in this Agreement will confer upon any person other than the parties and their respective successors or assigns, any rights, remedies, obligations, or liabilities, whatsoever. d. Assignment of Rights and Delegation of Duties. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective successors and permitted assigns. However, neither Party may assign any of its rights or delegate any of its obligations under this Agreement without prior written consent of the other Party, which consent shall not be unreasonable withheld or delayed. Notwithstanding any provisions to the contrary, however, SERIAL PH RFP 200234 Page 26 of 27 MARICOPA COUNTY retains the right to assign or delegate any of its rights and obligations hereunder to any of its wholly owned subsidiaries, affiliates or successor companies. Assignments made in violation of this provision are null and void. e. No Waiver. Failure or delay on the part of either Party to exercise any right, power, privilege or remedy hereunder shall not constitute a waiver thereof. No provision of this Agreement may be waiver by either Party except by a writing signed by an authorized representative of the Party making the waiver. f. Severability. The provisions of this Agreement shall be severable, and if any provision of this Agreement shall be held or declared to be illegal, invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect as though such illegal, invalid or unenforceable provision had not been contained herein. g. Entire Agreement. This Agreement constitutes the entire agreement between the parties with regard to the Privacy Standards and Security Standards, there are no understandings or agreements relating to this Agreement that are not fully expressed in this Agreement and no change, waiver or discharge of obligations arising under this Agreement will be valid unless in writing and executed by the party against whom such change, waiver or discharge is sought to be enforced. h. Written Agreement. This Agreement is considered as an integral part of the underlying Contract and is incorporated as though fully set forth within the Contract. This Agreement will govern in the event of conflict or inconsistency with any provision of Contract. i. Choice of Law. This Agreement and the rights and obligations of the parties hereunder shall be governed by and construed under the laws of the State of Arizona, without regard to applicable conflict of law principles. j. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and when taken together shall constitute one agreement. k. Facsimile and Electronic Signatures. Facsimile and electronic signatures shall be deemed to be original signatures for all purposes of this Agreement. l. Notices. Any notices required under this Agreement will be sent to the parties at the following address by first class mail, fax or hand delivery: Agreed to by Associate by: ASSOCIATE _____________________________________ _________________________________ SIGNATURE DATE SIGNATURE DATE _____________________________________ ________________________________ PRINT NAME AND TITLE PRINT NAME AND TITLE SERIAL PH RFP 200234 Page 27 of 27 BUSINESS ASSOCIATE AGREEMENT FOR RELEASE OF INFORMATION TO THIRD PARTIES 1. _______________________________ (“Associate”) is a business associate of MARICOPA COUNTY, pursuant to the Agreement between Associate and MARICOPA COUNTY dated __________ (“Agreement”). Pursuant to that Agreement, Associate is required to comply with the requirements for the use and handling of Protected Health Information (“PHI”) from MARICOPA COUNTY as set forth in the Standards for Privacy of Individually Identifiable Health Information, 45 C.F.R. 164.501 et. seq. as amended from time to time (“Privacy Standards”). 2. Associate is permitted to disclose PHI to _______________ (“Recipient”) for the necessary management and administration of Associate and to carry out the legal responsibilities of the Associate, provided that Recipient provides Associate with the following assurances for Recipient’s use and disclosure of PHI. 3. Associate seeks to disclose PHI to Recipient for the following management, administration or legal responsibilities of Associate: 4. The disclosure of PHI to Recipient is conditioned upon Recipient’s assurance that, and Recipient agrees that it will: a. Hold the PHI confidentially and make no re-disclosure to any third party without Associate’s express advance written consent; b. Use or disclose the PHI only as required by law or for the purposes set forth above; and c. Notify Associate in writing of any breaches in the confidentiality of the PHI within three days of discovery of any such breach. ASSOCIATE RECIPIENT _____________________________________ _______________________________ SIGNATURE DATE SIGNATURE DATE _____________________________________ ________________________________ PRINT NAME AND TITLE PRINT NAME AND TITLE