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HomeMy WebLinkAbout08 - Approval of a PSA to provide Emergency Medical and Ambulance Billing ServicesCITY OF NEWPORT BEACH City Council Staff Report TO: FROM: PREPARED BY: PHONE: September 27, 2016 Agenda Item No. 8 HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL Scott L. Poster, Fire Chief - 949-644-3101, sposter@nbfd.net Angela Velazquez, Administrative Manager, acrespi nbfd.net 949-644-3352 TITLE: Approval of a Professional Services Agreement with Wittman Enterprises, Inc. to provide Emergency Medical and Ambulance Billing Services ABSTRACT: The City of Newport Beach Fire Department receives over 8,000 calls for Emergency Medical Services on an annual basis. The cost of providing these services is supported by City Council adopted user fees included in the Master Fee Schedule. Collection of these fees is unlike other city fees and involves medical insurance billing. The City of Newport Beach has conducted a request for proposals (RFP) seeking a consultant to perform these specialized billing services. As a result, staff's recommendation is to award a contract to the most qualified company. RECOMMENDATION: a) Determine that the action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because it will not result in a physical change to the environment, directly or indirectly; and b) Approve a five (5) year Professional Services Agreement with Wittman Enterprises, Inc. to provide Emergency Medical and Ambulance Billing Services at a not to exceed amount of $175,000 per contract year, and authorize the Mayor and City Clerk to execute the Agreement. FUNDING REQUIREMENTS: The current adopted budget includes sufficient funding for this purchase. It will be expensed to the Ambulance Fees account in the Fire Department, 01040404-891038. 8-1 Approval of a Professional Services Agreement with Wittman Enterprises, Inc. to provide Emergency Medical and Ambulance Billing Services September 27, 2016 Page 2 DISCUSSION: Emergency Medical Services (EMS) fees are the single largest revenue source in the Fire Department. Based on call volume and billing trends, the FY 2016-17 projected revenue is $3,345,000. Selection of the most qualified contractor will enable collection of the maximum allowable reimbursement from various insurance payors and therefore maximum cost recovery. Proposal Evaluation and Selection: RFP No. 16- 56 was published on May 23, 2016 and closed on June 21, 2016. The City received five (5) proposals from the following proposers: Amerik Medical Billing; Health Services Integration; Advanced Data Processing Inc. (Intermedix Corporation); Novato Fire Protection District; and Wittman Enterprises, LLC. The proposals were forwarded to an evaluation panel consisting of staff from the Fire Department. Two of the five proposers, Amerik Medical Billing and Health Services Integration, were disqualified by the panel for failing to demonstrate the minimum qualifications in the RFP. The evaluation panel rated the remaining three proposals based on technical factors such as experience, qualifications, understanding of the project, proposed methodology, and references. The RFP solicitation emphasized the ability of the contractor to minimize City costs, maximize the use of data and technology, provide excellent client and customer service, and to successfully perform thorough and complete billing services. The RFP solicitation also provided billing activity projections according to fee type and insurance payor mix so that bidders could provide accurate pricing. The combination of the technical factors rated by the evaluation panel and the cost analysis completed by Purchasing staff are combined in the evaluation score (shown below). 8-2 WITTMAN NOVATO FIRE ENTERPRISES, INC. INTERMEDIX PROTECTION DISTRCT EVALUATION SCORE (OUT OF 100) 84.33 84.82 92.26 CHARGE TO CITY 3.39% OF NET $18 PER CALL 4.25% OF NET COLLECTIONS COLLECTIONS ANNUAL RATE INCREASE TO $19.80 INCREASE(S) N/A PER CALL AFTER YEAR 3 N/A 8-2 Approval of a Professional Services Agreement with Wittman Enterprises, Inc. to provide Emergency Medical and Ambulance Billing Services September 27, 2016 Page 3 While Intermedix Corporation offered the lowest charge to the City, they also received the lowest evaluation score. A major factor in their scoring was the performance data provided, which indicated a potential 22% reduction in net collections. In 2015, that amount would equal to a revenue loss of $594,000 in one year. Novato Fire Protection District was competitive in terms of technical scoring, but is also potentially more expensive in terms of cost. A comparison between Novato and Wittman's total costs is challenging due to differing cost structures. One proposer offers a per call fee with the other being percentage based. Under the per call fee structure, the resulting cost to the City may be higher for smaller fee calls. To illustrate, our average collection rate for a non -transport call is $176. Under the Novato rate, billing this call would cost $18 and under the Wittman rate the billing would cost $7.48. Based on the total RFP evaluation process, staff recommends Wittman Enterprises as the most qualified company. Wittman Enterprises surpassed the other proposers in terms of their experience from their extensive California and Orange County client base. Their diligence in seeking full reimbursement, industry knowledge, outstanding performance history, a large staff well trained staff, history and providing both the department and our residents and visitors with excellent customer services were other notable areas of strength. In addition, their willingness to reduce the billing rate from 6.1 % to 4.25 % at a 5 -year savings of $250,000 demonstrated their commitment to the business relationship and continued incentive to seek the highest levels of reimbursement for the City. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENTS: Attachment A - Professional Services Agreement with Wittman Enterprises, Inc. for Emergency Medical and Ambulance Billing Services 8-3 Professional Services Agreement with Wittman Enterprises, Inc. for Emergency Medical and Ambulance Billing Services 8-4 PROFESSIONAL SERVICES AGREEMENT WITH WITTMAN ENTERPRISES, LLC FOR EMERGENCY MEDICAL AND AMBULANCE BILLING SERVICES THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into as of this 1st day of October, 2016 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and WITTMAN ENTERPRISES, LLC, a California limited liability company ("Consultant"), whose address is 11093 Sub Center Drive, Rancho Cordova, California 95670, and is made with reference to the following: RECITALS X City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Consultant to provide emergency medical and ambulance billing services ("Project"). C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the professional services described in this Agreement. D. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the Effective Date, and shall terminate on June 30, 2021, unless terminated earlier as set forth herein. Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ("Services" or "Work"). City may elect to delete certain Services within the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Consultant shall perform the Services in accordance with the schedule included in Exhibit A. In the absence of a specific schedule, the Services shall be RIM performed to completion in a diligent and timely manner. The failure by Consultant to strictly adhere to the schedule set forth in Exhibit A, if any, or perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 3.2 Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice within two (2) calendar days of the occurrence causing the delay to the other party so that all delays can be addressed. 3.3 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator as defined herein not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.4 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by hand -delivery or mail. 4. COMPENSATION TO CONSULTANT 4.1 City shall pay Consultant for the Services on a time and expense not -to - exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Eight Hundred Seventy Five Thousand Dollars and 00/100 ($875,000.00), without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.2 Consultant shall submit monthly invoices to City describing the Work performed the preceding month. Consultant's bills shall include the name of the person who performed the Work, a brief description of the Services performed and/or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) calendar days after approval of the monthly invoice by City staff. 4.3 City shall reimburse Consultant only for those costs or expenses specifically identified in Exhibit B to this Agreement or specifically approved in writing in advance by City. 4.4 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Wittman Enterprises, LLC Page 2 H., Fol Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER 5.1 Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated the Administrative Manager to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to -the removal or assignment of non -key personnel. 5.2 Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 5.3 If Consultant is performing inspection services for City, the Project Manager and any other assigned staff shall be equipped with a cellular phone to communicate with City staff. The Project Manager's cellular phone number shall be provided to City. This Agreement will be administered by the Fire Department. City's Administrative Manager or designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES To assist Consultant in the execution of its responsibilities under this Agreement, City agrees to provide access to and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's Work schedule. 8.1 All of the Services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with community professional standards and with the ordinary degree of skill and care that would be used by other reasonably competent practitioners of the same discipline under similar circumstances. All Services shall be performed by qualified and experienced personnel who are not Wittman Enterprises, LLC Page 3 RVA employed by City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement, all applicable federal, state and local laws, and legally recognized professional standards. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force and effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, employees and any person or entity owning or otherwise in legal control of the property upon which Consultant performs the Project and/or Services contemplated by this Agreement (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any Work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent, reckless, and/or willful acts, errors and/or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable, or any or all of them). 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Consultant. Wittman Enterprises, LLC Page 4 -1 R 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the Work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. No civil service status or other right of employment shall accrue to Consultant or its employees. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the Work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance of the Work or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. cej 11:11 101 -All I NIT Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit C, and incorporated herein by reference. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall Wittman Enterprises, LLC Page 5 DNA be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint -venture or syndicate or co -tenancy, which shall result in changing the control of Consultant. Control means fifty percent (50%) or more of the voting power or twenty-five percent (25%) or more of the assets of the corporation, partnership or joint -venture. 16. SUBCONTRACTING The subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS 17.1 Each and every report, draft, map, record, plan, document and other writing produced, including but not limited to, websites, blogs, social media accounts and applications (hereinafter "Documents"), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Additionally, all material posted in cyberspace by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents, including all logins and password information to City upon prior written request. 17.2 Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant, and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. Wittman Enterprises, LLC Page 6 17.3 All written documents shall be transmitted to City in formats compatible with Microsoft Office and/or viewable with Adobe Acrobat. 18. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City expressly authorizes in writing the release of information. Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement or alleged infringement of any United States' letters patent, trademark, or copyright, including costs, contained in Consultant's Documents provided under this Agreement. Consultant shall keep records and invoices in connection with the Services to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 21. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue Work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 22. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant, the additional design, construction and/or restoration expense shall be Wittman Enterprises, LLC Page 7 8-11 borne by Consultant. Nothing in this Section is intended to limit City's rights under the law or any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 24. CONFLICTS OF INTEREST 24.1 Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 24.2 If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 25. NOTICES 25.1 All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first- class mail, addressed as hereinafter provided. 25.2 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Angela Crespi Fire Department City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 25.3 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: Corinne Wittman -Wong Wittman Enterprises, LLC 11093 Sub Center Drive Rancho Cordova, CA 95670 Wittman Enterprises, LLC 8-12 26. CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Consultant shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Consultant's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Consultant in writing as unsettled at the time of its final request for payment. Consultant and City expressly agree that in addition to any claims filing requirements set forth in the Agreement, Consultant shall be required to file any claim Consultant may have against City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). 27. TERMINATION 27.1 In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 27.2 Notwithstanding the above provisions, City shall have the right, at its sole and absolute discretion and without cause, of terminating this Agreement at any time by giving no less than seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for Services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 28.1 Recitals. City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 28.2 Compliance with all Laws. Consultant shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. Wittman Enterprises, LLC Page 9 8-13 28.3 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 28.4 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 28.5 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 28.6 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 28.7 Amendments. This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 28.8 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 28.9 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 28.10 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, sexual orientation, age or any other impermissible basis under law. 28.11 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 28.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] Wittman Enterprises, LLC Page 10 8-14 IN WITNESS WHEREOF, the ,parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORI EY' OFFICE Date: 1(0 By: r Aaron C. Harp City Attorney ATTEST: Date: By: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Diane Dixon Mayor CONSULTANT: Wittman Enterprises, LLC, a California limited liability company Date: By: Corinne Wittman -Wong Chief Executive Officer Date: By: Walter Imboden Chief Financial Officer [END OF SIGNATURES] Attachments: Exhibit A -- Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements Exhibit D — HIPAA Business Associate Agreement Wittman Enterprises, LLC -- - Page 11 8-15 EXHIBIT A SCOPE OF SERVICES A. GENERAL PERFORMANCE REQUIREMENTS Contractor shall provide the City of Newport Beach with all functions of the billing process (including preparing, invoicing, categorizing, recording, monitoring, supervising and managing the emergency medical and ambulance transportation billing) for Emergency Medical and Ambulance Billing Services as described herein. Contractor shall provide excellent customer service to residents and visitors of Newport Beach who have billing questions or problems, by providing a toll-free phone number and an email address so individuals with questions or requiring assistance with invoices, may contact the company directly. Contractor shall provide customer service representatives that are available at a minimum from 8:00 am to 4:30 pm, Pacific Time, Monday through Friday, excluding major holidays. Language translation service for other language needs of patients or their representatives shall be available. Contractor shall make outgoing contacts with City accounts identifying themselves as "Ambulance Billing Services for the City of Newport Beach Paramedic Services" and shall identify themselves when receiving incoming calls as "Ambulance Billing Services." Contractor shall provide the flexibility and care needed for the City's accounts by providing an adequate amount of personnel. Contractor shall provide a liaison to the City. This individual will be a full—time employee of the Contractor, have an extensive knowledge of EMS billing practices, as well as an understanding of EMS industry standard practices, and decision making authority for problem resolution. This liaison shall be available during regular business hours and have an alternate contact available in his/her absence. The liaison shall provide overall management and coordination of the contract on the Contractor's behalf and have access to technical assistance at all times. Contractor shall prepare all invoices and follow-up mailings to receivers of Newport Beach Emergency Medical Services. Initial invoicing with both English and Spanish instructions shall be on 8.5" by 11" paper and shall be placed in envelopes, sealed and mailed, postage prepaid. An initial telephone call shall also be made to elicit any insurance information from the patient or patient's representative. If there is no answer on the initial call, Contractor shall send an inquiry letter in addition to the initial invoice. The agreed upon bill schedule is as follows: Initial Invoice: Immediately Call to Patient: 20 Days Statement: 30 Days Past Due Notice: 45 Days Wittman Enterprises, LLC Page A-1 E.M. Call to Patient: 55 Days Final Request Notice: 65 Days Account Review for Collections: 75 Days Contractor shall forward all unresolved complaints and billing disputes to the City for review and determination. Contractor shall adhere to the City's policy for handling account hardship issues, liens and attorney settlement requests, including but not limited to minimal monthly payment plans, credit card transactions, write-downs and write-offs. 1. Medicare, Medi -Cal Contractor shall electronically convey all Medicare and Medi -Cal claims to the appropriate payor. All secondary insurance, coinsurance, and co -payments for Medicare and Medi -Cal, shall be transferred to the appropriate pay source and promptly billed to that source. Contractor shall be responsible for program updates if the requirements of Medicare and Medi -Cal fiscal intermediaries change during the contract period. Contractor shall comply with all federal and state regulations and applicable State Medi -Cal regulations regarding claim submittal and processing in its entirety. Contractor shall remain current in the regulations and inform the City if its current practices need to be modified to adhere to all regulatory matters. 2. Workers' Compensation and Private Insurance Contractor shall bill private insurance, supplemental insurance, secondary insurance, and workers compensation in accordance with applicable requirements. Electronic billing of insurance companies shall be performed where appropriate. Any correspondence for additional information or follow-up necessary to secure insurance payment shall be performed by Contractor. 3. Paramedic Subscription Members In the event that services are rendered to a covered member of the City's Paramedic Subscription Program (Fire Medics) who has insurance, a diligent and timely effort shall be made by Contractor to identify, bill, and pursue payment from these resources. C. DELINQUENT CLAIM HANDLING An account is only deemed as uncollectable after all efforts to collect the balance due has been exhausted including: Bill Schedule has been completed Utilization of all appropriate follow-up letters Alternate contacts have been used Attempts to locate correct address and telephone number with the Haines Directory, White Pages.com and Accurint.com Wittman Enterprises, LLC Page A-2 8-17 Hospital contacted for better information Medicaid eligibility re -verified At this point, delinquent accounts will be sent to the City for review or, if directed by City, sent directly to the City's contracted collection agency. Transfer will be made via computer printout (paper), secured email, or secured FTP site. D. RECEIPTS HANDLING Contractor shall receive direct payment, posting, and depositing cash receipts within one (1) day of receipt. Bank deposit receipt will be sent via secured email or secured FTP site to Newport Beach Fire Department. Contractor shall have no access to the proceeds of the receipts. All funds are under the exclusive control of the City. Contractor, on a monthly basis, shall perform accurate month end close procedures and produce the following reports. Reports shall be broken down by payor mix where possible. Monthly Ticket Survey Monthly Sales Journal Monthly Cash Receipts Journal Monthly Receivables Aging Management A/R Analysis Monthly Customer Satisfaction Survey Results City may periodically request modification of reports to address specific issues or needs that arise. Contractor shall provide data and reports as needed for fees studies, cost reimbursement programs, pilot studies, or other programs or initiatives. F. RECORDS For all accounts assigned to the Contractor, all customer contact, including notices, mailing, itemizations, small claims, bankruptcy filings and miscellaneous requests and inquiries, is the sole responsibility of the Contractor. Contractor shall ensure that records are not missing, minimum content criteria is present, fee schedules are accurate and applied correctly, billing codes are appropriate and itemized charges are captured. Records shall be maintained in accordance with generally accepted accounting principles (GAAP). Contractor shall have the ability to cross reference patient files in various methods (i.e. last name, social security number, service or residence address, date of birth, date of service, etc.). Wittman Enterprises, LLC Page A-3 Contractor shall provide the City with electronic access to the billing records. All other records shall be made available to the City upon request. Contractor agrees that all account records remain the property of the City and will be returned to the City upon termination of this agreement. Contractor shall guarantee the confidentiality, security and safety of all files, documents and information provided by the City, except as to disclosure required by federal and state laws and regulations. Contract will comply with all federal, state and local statutes and regulations regarding protected health information, including the Health Insurance and Portability and Accountability Act of 1996 (HIPAA), and shall enter into a HIPAA Business Associate Agreement with the City. Contractor shall maintain HIPAA compliance throughout the term of the contract. Contractor will be fully responsible for maintaining accurate records of all correspondence, documents, accounting records, transactions and other relative evidence for a period of seven (7) years. The software and hardware of the billing system shall ensure complete and uninterrupted back-up with a data recovery system should a disaster occur. Contractor shall provide all software and hardware associated with the billing and receivables process. The Agency must be able to accurately transfer all necessary information from the Image Trend database, based on the information provided by the electronic Prehospital Care Report (ePCR) and obtain any additional information needed that is not included in the ePCR, for proper and correct invoicing. Contractor shall also be responsible for securely obtaining demographic and insurance information from receiving hospitals. Contractor shall maintain a secure FTP platform to send and receive account data and information when necessary. Contractor shall maintain the FTP platform during the entire term of the contract. Contractor shall provide a monthly invoice to the City based upon the revenue collected and reported by the City to the Contractor. Contractor shall be responsible for mailing the City's Customer Satisfaction Survey, provided by the City, in the manner prescribed by the City. The survey contents may be modified at any time during the contract at the discretion of the City. The Contractor shall have the ability to handle third party payor submission inquiries regarding insurance claims. Contractor shall have the ability to effect collections in all 50 states. Contractor will process all customer payments in accordance with applicable Payment Card Industry (PCI) security requirements. Contractor will provide updates to the City on changes in federal and state laws and regulations, and shall liaise with State and Federal agencies on behalf of the City. Wittman Enterprises, LLC Page A-4 Contractor will remain current in insurance regulations and inform the City if its current practices need to be modified to adhere to maximize reimbursement. The City will work cooperatively with the Contractor to collect signatures at the time of the patient contact but the final responsibility to obtain signatures will rest with the Contractor. Contractor shall exercise its best ethical, prudent, lawful and professional efforts to secure payments on all accounts referred by the City. Collection activities shall comply with all federal, state and local laws, including but not limited to the Federal Fair Debt Collection Practices Act. Contractor shall not assign or subcontract any portion of this agreement or transfer, assign or outsource any claim, pursuant to this contract, without the written consent of the City. Contractor shall not enter into any third party agreements with clearinghouses, insurance companies or any other arrangement that results in a reduction of reimbursement without the written approval of the City. Agency shall meet with City staff on an annual basis (or as -needed if issues arise) to discuss all services and how the Agency and City can work together to further collections. Provide Consultant with the proper documentation necessary to prepare claims and reach final adjudication. Provide Consultant with any correspondence from the fiscal intermediaries, insurance, attorneys, patients in order for Consultant to perform proper follow up of outstanding billings and proper posting and tracking of accounts receivable. Obtain patient signature or patient representative signature on trip ticket, or indicate why unable to obtain signature. Notify Consultant of any accounts requiring special attention or handling. Wittman Enterprises, LLC Page A-5 EXHIBIT B SCHEDULE OF BILLING RATES For the term of this contract, the fee shall remain at 4.25% of net collected dollars. Wittman Enterprises, LLC Page B-1 8-21 INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 1. Provision of Insurance. Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Consultant agrees to provide insurance in accordance with requirements set forth here. If Consultant uses existing coverage to comply and that coverage does not meet these requirements, Consultant agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Consultant shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its City Council, boards and commissions, officers, agents, volunteers and employees. B. General Liability Insurance. Consultant shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). C. Automobile Liability Insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. Wittman Enterprises, LLC Page C-1 D. Cyber Coverage. Consultant shall maintain Cyber liability that includes Security and Privacy liability, Media liability, Business interruption and extra expense and Cyber extortion, in the amount of at least One Million Dollars ($1,000,000) for the duration of this agreement. E. Commercial Crime Coverage. Consultant shall maintain commercial crime policy insurance including Employee Dishonesty naming the City as a loss payee with respect to any loss(es) concerning this Agreement, in the minimum amount of at least One Million Dollars ($1,000,000) limit per claim. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its City Council, boards and commissions, officers, agents, volunteers and employees or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subconsultants. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, but not including professional liability, shall provide or be endorsed to provide that City, its City Council, boards and commissions, officers, agents, volunteers and employees shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self- insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days notice of cancellation (except for nonpayment for which ten (10) calendar days notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Wittman Enterprises, LLC Page C-2 8-23 Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Consultant sixty (60) calendar days advance written notice of such change. If such change results in substantial additional cost to Consultant, City and Consultant may renegotiate Consultant's compensation. C. Enforcement of Agreement Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. D. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. E. Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these requirements unless approved by City. F. City Remedies for Non -Compliance. If Consultant or any subconsultant fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Consultant's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Consultant or reimbursed by Consultant upon demand. G. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor's performance under this Contract, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. Wittman Enterprises, LLC Page C-3 8-24 H. Consultant's Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. Wittman Enterprises, LLC Page C-4 8-25 Imo.. Wittman Enterprises, LLC Page D-1 S s BUSINESS ASSOCIATE AGREEMENT (OUTSIDE BILLING COMPANY) BETWEEN WITTMAN ENTERPRISES, LLC AND CITY OF NEWPORT BEACH THIS BUSINESS ASSOCIATE AGREEMENT ("Agreement") is entered this 1St day of October, 2016 ("Effective Date") between THE CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City") and WITTMAN ENTERPRISES, LLC, a California limited liability ("Wittman") whose address is 11093 Sub Center Drive, Rancho Cordova, California 95670, and is made with reference to the following: l A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. Wittman is the City's contracted outside billing company, contracted with to provide statements to and collect payments from patients who have received paramedic field services and emergency ambulance transportation services from the City. C. This Agreement is executed to ensure that Wittman will appropriately safeguard protected health information ("PHI") that is created, received, maintained, or transmitted on behalf of the City in compliance with the applicable provisions of Public Law 104-191 of August 21, 1996, known as the Health Insurance Portability and Accountability Act of 1996, Subtitle F — Administrative Simplification, Sections 261, et seq., as amended ("HIPAA"), the regulations codified at 45 C.F.R. Parts 160 and 164 ("HIPAA Regulations"), and with Public Law 111-5 of February 17, 2009, known as the American Recovery and Reinvestment Act of 2009, Title XI I, Subtitle D — Privacy, Sections 13400, et seq., the Health Information Technology and Clinical Health Act, as amended (the "HITECH Act"). NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: A. General Provisions Meaning of Terms. The terms used in this Agreement shall have the same meaning as those terms defined in the HIPAA, the HIPAA Regulations, and the HITECH Act. 2. Regulatory References. Any reference in this Agreement to a regulatory section means the section currently in effect or as amended. 3. Interpretation. Any ambiguity in this Agreement shall be interpreted to permit compliance with the HIPAA, the HIPAA Regulations, and the HITECH Act. B. Obligations of Business Associate Wittman shall not use or further disclose protected health information ("PHI") other than as permitted or required by this Agreement or as required by law. 2. Wittman shall use appropriate safeguards and comply, where applicable, with the HIPAA Security Rule with respect to electronic protected health information ("e -PHI") and implement appropriate physical, technical and administrative safeguards to prevent use or disclosure of PHI other than as provided for by this Agreement. 3. Wittman shall report in writing to City each security incident (as defined in the HIPAA Security Rule) or any use or disclosure of PHI not provided for by this Agreement no later than three (3) business days after becoming aware of such security incident or non -permitted use or disclosure. If such security incident or non -permitted use or disclosure constitutes a breach of unsecured PHI, then Wittman shall comply with the requirements of Section B.4. below. 4. Wittman shall investigate each unauthorized access, acquisition, use or disclosure of PHI that it discovers to determine whether such unauthorized access, acquisition, use or disclosure constitutes a reportable breach of unsecured PHI. If Wittman determines that a reportable breach of unsecured PHI has occurred, Wittman shall notify City of such breach in writing without unreasonable delay but no later than sixty (60) calendar days after discovery of the breach, in accordance with 45 C.F.R. §164.410(c). City shall have sole control over the timing and method of providing notification of such breach to the affected individual(s), the Secretary and, if applicable, the media, as required by the HITECH Act. Wittman shall reimburse City for its reasonable costs and expenses in providing the notification, including, but not limited to, any administrative costs associated with providing notice, printing and mailing costs, and costs of mitigating the harm (which may include the costs of obtaining credit monitoring services and identity theft insurance) for affected individuals whose PHI has or may have been compromised as a result of the breach. 5. In accordance with 45 CFR 164.502(e)(1) and 164.308(b), ensure that any subcontractors that create, receive, maintain, or transmit PHI on behalf of Wittman agree to the same restrictions, conditions, and requirements that apply to Wittman with respect to such information; 6. Make PHI in a designated record set available to City and to an individual who has a right of access in a manner that satisfies the City's obligations to Wittman Enterprises, LLC Page 2 8-28 provide access to PHI in accordance with 45 CFR §164.524 within thirty (30) days of a request; 7. Make any amendment(s) to PHI in a designated record set as directed by the City, or take other measures necessary to satisfy the City's obligations under 45 CFR §164.526; 8. Maintain and make available information required to provide an accounting of disclosures to the City or an individual who has a right to an accounting within sixty (60) days and as necessary to satisfy the City's obligations under 45 CFR §164.528; 9. To the extent that Wittman is to carry out any of the City's obligations under -the HIPAA Privacy Rule, Wittman shall comply with the requirements of the Privacy Rule that apply to the City when it carries out that obligation; 10. Make its internal practices, books, and records relating to the use and disclosure of PHI received from, or created or received by Wittman on behalf of the City, available to the Secretary of the Department of Health and Human Services for purposes of determining Wittman and the City's compliance with HIPAA, the HIPAA Regulations, and the HITECH Act; 11. Restrict the use or disclosure of PHI if the City notifies Wittman of any restriction on the use or disclosure of PHI that the City has agreed to or is required to abide by under 45 CFR §164.522; and 12. If the City is subject to the Red Flags Rule (found at 16 CFR §681.1 et seq.), Wittman agrees to assist the City in complying with its Red Flags Rule obligations by: (a) implementing policies and procedures to detect relevant Red Flags (as defined under 16 C.F.R. §681.2); (b) taking all steps necessary to comply with the policies and procedures of the City's Identity Theft Prevention Program; (c) ensuring that any agent or third party who performs services on its behalf in connection with covered accounts of the City agrees to implement reasonable policies and procedures designed to detect, prevent, and mitigate the risk of identity theft; and (d) alerting the City of any Red Flag incident (as defined by the Red Flag Rules) of which it becomes aware, the steps it has taken to mitigate any potential harm that may have occurred, and provide a report to the City of any threat of identity theft as a result of the incident. Wittman Enterprises, LLC Page 3 C. Permitted Uses and Disclosures by Business Associate The specific uses and disclosures of PHI that may be made by Wittman on behalf of the City include: The preparation of invoices to patients, carriers, insurers and others responsible for payment or reimbursement of the services provided by the City to its patients; 2. Preparation of reminder notices and documents pertaining to collections of overdue accounts; 3. The submission of supporting documentation to carriers, insurers and other payers to substantiate the healthcare services provided by the City to its patients or to appeal denials of payment for the same; and 4. Other uses or disclosures of PHI as permitted by HIPAA necessary to perform the services that Wittman has been engaged to perform on behalf of the City. D. Relationship of Parties 1. Wittman is an independent contractor and not an agent of City under this Agreement. Wittman has the sole right and obligation to supervise, manage, contract, direct, procure, perform or cause to be performed all of Wittman's obligations under this Agreement. E. Indemnification Notwithstanding anything to the contrary in the underlying services agreement between the City and Wittman, at Wittman's expense, Wittman agrees to indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (the "Indemnities") from and against any and all fines, penalties, damages, losses, claims or causes of action and expenses (including, without limitation, court costs and reasonable attorneys' fees) arising from any violation of the HIPAA, the HIPAA Regulations, or the HITECH Act or from any negligence or wrongful acts or omissions, including but not limited to failure to perform its obligations that results in a violation of the HIPAA, the HIPAA Regulations, or the HITECH Act, by Wittman or its employees, directors, officers, subcontractors, agents or other members of Wittman workforce. Wittman's obligation to indemnify the Indemnities shall survive the expiration or termination of this Agreement for any reason. Wittman Enterprises, LLC Page 4 8-30 F. Term and Termination 1. The term of this Agreement shall be effective as of the Effective Date and shall terminate as of the date that all of the PHI provided by City to Wittman, or created or received by Wittman on behalf of City, is destroyed or returned to City, or, if it is infeasible to return or destroy the PHI, protections are extended to such information, in accordance with Section F.3 below. 2. Upon City's knowledge of a material breach or violation of this Agreement by Wittman, City shall either: a. Notify Wittman of the breach in writing, and provide an opportunity for Wittman to cure the breach or end the violation within ten (10) business days of such notification; provided that if Wittman fails to cure the breach or end the violation within such time period to the satisfaction of City, City shall have the right to immediately terminate this Agreement and the underlying services agreement between City and Wittman upon written notice to Wittman; b. Upon written notice to Wittman, immediately terminate this Agreement and the underlying services agreement between City and Wittman if City determines that such breach cannot be cured; or C. If City determines that neither termination nor cure is feasible, City shall report the violation to the Secretary. 3. Upon termination of this Agreement for any reason, Wittman shall return to the City or destroy all PHI received from the City, or created, maintained, or received by Wittman on behalf of the City that Wittman still maintains in any form. Wittman shall retain no copies of the PHI. However, if Wittman determines that neither return nor destruction of PHI is feasible, Wittman shall notify City of the conditions that make return or destruction infeasible, and may retain PHI provided that Wittman: (a) continues to comply with the provisions of this Agreement for as long as it retains PHI, and (b) further limits uses and disclosures of such PHI to those purposes that make the return or destruction of PHI infeasible. G. Notices 1. All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first-class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Wittman to City shall be addressed to City at: Wittman Enterprises, LLC Page 5 8-31 Attn: Angela Velazquez, Administrative Manager Fire Department City of Newport Beach 100 Civic Center Dr. PO Box 1768 Newport Beach, CA 92658 2. All notices, demands, requests or approvals from City to Wittman shall be addressed to Wittman at: Attention: Corrine Wittman -Wong Wittman Enterprises, LLC 11093 Sub Center Drive Rancho Cordova, CA 95670 H. Amendment to Comply with Law This Agreement shall be deemed amended to incorporate any mandatory obligations of City or Wittman under the HITECH Act and its implementing HIPAA Regulations. Additionally, City and Wittman agree to take such action as is necessary to amend this Agreement from time to time as necessary for City to implement its obligations pursuant to the HIPAA, the HIPAA Regulations, or the HITECH Act. This Agreement shall be governed by and construed in accordance with the laws of the State of California (without regards to conflict of laws principles). City and Wittman agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated exclusively in the State or federal (if permitted by law and if a party elects to file an action in federal court) courts located in Orange County, California. J. Counterparts This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. K. No Attorneys' Fees In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. Wittman Enterprises, LLC Page 6 8-32 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY Date: By: Aaron C. Harp 94,1 City Attorney ATTEST: Date: By: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, A California municipal corporation Date: By: Diane B. Dixon Mayor CONSULTANT: Wittman Enterprises, LLC, a California limited liability company Date: By: Corinne Wittman -Wong Chief Executive Officer Date: By: Walter Imboden Chief Financial Officer Wittman Enterprises, LLC Page 7 8-33