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HomeMy WebLinkAboutC22-337 Vail Health Non-Clinical 4838-7517-4049.3 PROFESSIONAL SERVICES AGREEMENT THIS PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is entered into on _______________ by and between Vail Clinic, Inc. d/b/a Vail Health Hospital, a Colorado nonprofit corporation, (“CUSTOMER”) and Eagle County, (“CONTRACTOR”). BACKGROUND WHEREAS, CUSTOMER desires to retain, and CONTRACTOR agrees to provide, certain professional services in accordance with this Agreement. AGREEMENT NOW THEREFORE, the parties for good and valuable consideration, the receipt of which are hereby acknowledged, and intending to be legally bound hereby, agree as follows: 1. SERVICES. CUSTOMER hereby engages CONTRACTOR to provide the full range of professional services described in Section 2 of this Agreement (the “Services”) on a non-exclusive and as needed basis. CONTRACTOR hereby agrees to provide such Services under the terms and conditions set forth herein. 2. RESPONSIBILITIES OF CONTRACTOR. CONTRACTOR shall: 2.1 Be responsible for providing the Services listed in Exhibit A. 2.2 Be available to provide the Services during Customer’s regular business hours. 2.3 Comply with all security, safety, and other applicable rules, regulations of CUSTOMER when providing the Services. 2.4 Provide the Services diligently and in a professional and workmanlike manner. 2.5 Provide updates and consult with a designated representative of CUSTOMER regarding the Services provided and the progress made. 2.6 Immediately remove any on-site person upon CUSTOMER’s request. If the parties cannot agree upon a mutually acceptable replacement within five (5) business days of the date of notice thereof, then CUSTOMER may immediately terminate this Agreement. 2.7 Devote such time and effort in the performance of the Services as requested by CUSTOMER. 3. TERM. This Agreement shall be effective from October 1, 2022 through December 31, 2023 or until CUSTOMER, in its sole discretion, reasonably finds satisfactory completion of the Services and the acceptance of all Deliverables (as that term is defined in Section 7 hereof), unless otherwise terminated as provided herein. This Agreement may be extended for up to three additional one-year terms upon written agreement of the parties. Any amendments or modifications shall be in writing signed by both parties. 4. COMPENSATION. 4.1. For the Services provided under this Agreement, CUSTOMER agrees to pay CONTRACTOR Zero Dollars ($0). 4.2. CUSTOMER agrees to reimburse CONTRACTOR for all reasonable pre-approved out-of-pocket expenses (including, without limitation, travel but not travel time) actually incurred by CONTRACTOR in performing the Services. Such expenses shall be itemized and invoiced to CUSTOMER on a monthly basis and the invoice shall include copies of paid receipts and shall not exceed more than five percent (5%) of the total amount paid under Section 4.1            2 4838-7517-4049.3 4.3. CUSTOMER shall pay all undisputed charges within sixty (60) days after receiving a detailed invoice from CONTRACTOR. 5. TERMINATION. This Agreement may be terminated by either party, at any time, with or without cause, and without penalty upon thirty (30) days prior written notice. In such an event, CUSTOMER shall only be liable for payment to CONTRACTOR for Services actually rendered up to the date of termination. Either party may also immediately terminate this Agreement if the other party: (i) fails to comply with any term or condition of this Agreement and such failure remains uncured for more than ten (10) days after the date of notice thereof, or such additional time, if any, as is reasonably necessary to cure such failure; or (ii) makes an assignment for the benefit of creditors, files a petition or commences any proceeding under any bankruptcy or insolvency code or law, or has proceeded to wind up or liquidate its business, and such filing, petition, or proceeding is not dismissed within sixty (60) days after the date of notice thereof. 6. INDEPENDENT CONTRACTOR. CONTRACTOR and CONTRACTOR's employees, subcontractors, and agents shall at all times and for all purposes, be deemed to be independent contractors and not employees, subcontractors, or agents of CUSTOMER. This Agreement does not create a joint venture, partnership, or other similar association between the parties or any of CONTRACTOR’s employees, subcontractors, or agents. CONTRACTOR and CONTRACTOR’s employees, subcontractors, or agents shall not represent themselves to be officers, employees, or agents of CUSTOMER and shall not bind CUSTOMER to any agreement, liability, or obligation of any nature. CONTRACTOR agrees and understands that Vail Health will not withhold any taxes on behalf of CONTRACTOR, or any of its subcontractors, employees, or agents. 7. OWNERSHIP AND CONFIDENTIALITY. 7.1. Omitted 7.2. CONTRACTOR agrees that any information and documents including, without limitation, data, educational materials, materials relating to business, protocols, guidelines, pricing, strategies, compensation levels, financial information, trade secrets, and technology (collectively, the “Confidential Information”) concerning CUSTOMER, its patients, affiliates, employees, agents, or representatives that are submitted under this Agreement or which CONTRACTOR becomes aware of during the course of its performance hereunder are confidential and proprietary to CUSTOMER. CONTRACTOR shall hold all Confidential Information in the strictest confidence and in accordance with applicable laws and regulations as well as CUSTOMER’s policies and procedures. CONTRACTOR shall obtain no proprietary rights (directly or indirectly) in or to the Confidential Information. CONTRACTOR shall not disclose the Confidential Information to any third party without the prior written consent of CUSTOMER unless required by law. Upon the expiration or termination of this Agreement, for any reason, CONTRACTOR shall promptly turn over and return to CUSTOMER all Confidential Information (in whatever form or media) or upon the written direction of CUSTOMER, destroy the Confidential Information. 7.3 CONTRACTOR acknowledges that a breach of the covenants in this Section 7 by CONTRACTOR will result in irreparable and continuing damage to CUSTOMER for which there will be no adequate remedy at law. Accordingly, in the event of any such breach, CUSTOMER shall be entitled to injunctive relief and an order for specific performance with respect to such breach. CONTRACTOR shall not oppose such relief on the grounds that there is an adequate remedy at law, and such right shall be cumulative and in addition to any other remedies at law or in equity (including, without limitation, monetary damages) which CUSTOMER may have.           3 4838-7517-4049.3 8. INSURANCE. CONTRACTOR shall provide and maintain during the term of this Agreement, or any renewal term, insurance policies in adequate amounts to support CONTRACTOR’s obligations hereunder. Such insurance shall, include without limitation, comprehensive general liability insurance (in minimum amounts of $1,000,000 per occurrence and $3,000,000 aggregate coverage with appropriate tail coverage if such insurance is “claims made”); errors and omissions insurance (in minimum amounts of $1,000,000 per occurrence and $3,000,000 aggregate coverage with appropriate tail coverage if such insurance is “claims made”); auto liability policy including owned and non-owned, (in minimum amounts of $1,000,000 combined single limit and $100,000 per incident for uninsured and under-insured motorist; professional liability insurance, where applicable, in amounts required by the State of Colorado; and workers’ compensation coverage with statutory limits; and employer liability coverage (in minimum amounts of $1,000,000 per incident and $1,000,000 aggregate coverage). CONTRACTOR’s insurance coverage hereunder (except for workers’ compensation and professional liability) shall name CUSTOMER as an “additional insured.” CONTRACTOR shall provide CUSTOMER with a certificate of insurance. The certificates of insurance shall contain a provision that coverage will not be canceled, non-renewed, or materially changed without thirty (30) days’ prior written notice to CUSTOMER. CONTRACTOR is prohibited from accepting service of legal papers on behalf of CUSTOMER, its agents or any CUSTOMER insured. 9. INDEMNIFICATION - Intentionally omitted. 10. NOTICES. Any notice required to be provided under the terms and provisions of this Agreement shall be in writing, and shall be deemed to be delivered when deposited in the United States mail, postage prepaid, certified mail, return receipt requested, or sent by national overnight courier service (e.g., Federal Express, UPS) and addressed to the respective party at the address set forth below, or at any such address(es) or person(s) as each may specify by written notice given to the other party in the manner specified herein. Notwithstanding the above, notices may also be provided by personal delivery and shall be effective upon actual receipt. If to CUSTOMER: Eagle County Attention: Heath Harmon 550 Broadway Post Office Box 660 Eagle, CO 81631 Telephone: 970-328-8818 E-Mail: Heath.Harmon@eaglecounty.us With a copy to: Eagle County Attorney 500 Broadway Post Office Box 850 Eagle, Co 81631 Telephone: 970-328-8685 E-Mail: atty@eaglecounty.us With a copy to: Emily Weber Foley & Lardner, LLP 600 17th St., Suite 2020S Denver, CO 80202           4 4838-7517-4049.3 11. NON-DISCRIMINATION. Each party agrees that, in the performance of this Agreement, services will be provided without discrimination toward any patients, employees, or other persons regardless of their race, color, sex, age, religion, national origin, sexual orientation, marital status, or disability or any other manner prohibited by law. 12. ASSIGNMENT. Neither party shall assign any of its rights or obligations under this Agreement without the prior written consent of the other party. Any such assignment is expressly prohibited. Notwithstanding the foregoing, CUSTOMER, however, shall be permitted to assign its rights and obligations under this Agreement to any other person, entity, or organization affiliated with Vail Health without the consent of CONTRACTOR. In the event that Vail Health sells, transfers, or devises, all or substantially all of, its assets or stock, that transfer shall not constitute an assignment hereunder. 31. 13. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding and agreement between the parties concerning the subject matter hereof. This Agreement supersedes all prior written or oral agreements or understandings existing between the parties concerning the subject matter hereof. Each party acknowledges that: (i) it has carefully read this Agreement; (ii) it has had the assistance of legal counsel of its choosing (or such other professionals and advisors as it deemed necessary) in the review and execution of this Agreement; (iii) the meaning and effect of various terms and provisions hereof have been fully explained to it by such counsel; (iv) it has conducted such investigation, review, and analysis as it has deemed necessary to understand the provisions of this Agreement and the transactions contemplated hereby; and (v) it has executed this Agreement of its own free will. No amendment to any provision of this Agreement shall be effective unless in writing and signed by each party. 14. NON-WAIVER. No waiver of any term, provision, or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be or construed as a further and continuing waiver of any such term, provision or condition of this Agreement. No waiver shall be valid unless in writing and signed by the parties. 32. 15. GOVERNING LAW. This Agreement shall be construed and interpreted in accordance with, and its performance governed by, the laws of the State of Colorado. The Parties agree that any and all proceedings related to the subject matter hereof shall be commenced and maintained in the state courts in Eagle County, Colorado or the United States District Court for Colorado, which courts shall have exclusive jurisdiction for such purpose. 33. 16. MISCELLANEOUS. Notwithstanding anything to the contrary contained or implied herein, compensation payable to CONTRACTOR hereunder shall not be determined in a manner that takes into account (directly or indirectly) the volume or value of any referrals made by CONTRACTOR. 34. 17. COMPLIANCE. CONTRACTOR shall comply with applicable: (i) federal, state, and local laws, regulations, and executive orders, and amendments thereto, including, but not limited to, OSHA, NRC and CDC regulations, Medicare and Medicaid billing and referral regulations, and the Colorado Department of Health and Colorado Department of Human Services regulations; (ii) accreditation standards; (iii) requirements imposed under any city, state, federal, foundation or other award, contract, funding, reimbursement, payments policy, or grant; and (iv) CUSTOMER’s policies and procedures including, without limitation, its anti-discrimination and sexual harassment policies. 18. FURTHER ASSURANCES. The parties agree to execute such other documents and to perform all such other and further acts as may be necessary or desirable to carry out the purposes and intent of this Agreement. In addition, the parties agree to fully cooperate in assisting each other and their duly authorized employees, agents and attorneys in investigating, defending, or prosecuting incidents involving potential           5 4838-7517-4049.3 claims or lawsuits arising out of or in connection with this Agreement. Nothing in this paragraph shall require the parties to cooperate in the event of claims or lawsuits against each other. 19. NON-EXCLUSIVITY. Nothing in this Agreement shall be construed to require CUSTOMER to obtain services from CONTRACTOR on an exclusive basis or to prohibit CONTRACTOR from providing services to any other third party. 20. BINDING AGREEMENT. All of the terms and provisions of this Agreement shall be binding upon, inure to the benefit of and be enforceable by each of the parties hereto, their respective legal representatives and their permitted successors and assigns. 21. BOOKS AND RECORDS. This provision is included herein because of possible application of Section 1861(v)(I)(1) of the Social Security Act (the “Act”) to this Agreement. To the extent that this section of the Act is applicable, CONTRACTOR agrees to make available upon written request of the Secretary of Health and Human Services or the United States Comptroller General or any of their duly authorized representatives, this Agreement, and any books, documents and records of CONTRACTOR that are necessary to certify the nature and extent of costs incurred by CUSTOMER under this Agreement until the expiration of four (4) years after the termination or expiration of this Agreement. If CONTRACTOR carries out any of the duties or obligations contemplated by this Agreement through a contract or subcontract with a value of Ten Thousand Dollars ($10,000) or more over a twelve (12) month period, such contract or subcontract shall require this same access to the books, documents, and records of such contractor or subcontractor. 22. SANCTIONED PERSONS. CONTRACTOR represents and warrants to CUSTOMER that it and any of its agents, employees, officers, and representatives providing services under this Agreement: (a) are not “sanctioned persons” under any federal or state program or law; (b) have not been listed in the current Cumulative Sanction List of the Office of Inspector General for the United States Department of Health and Human Services for currently sanctioned or excluded individuals or entities; (c) have not been listed on the General Services Administration’s List of Parties Excluded from Federal Programs; (d) have not been convicted of a criminal offense related to health care; (e) have not been listed on the United States Department of Treasury, Office of Foreign Assets Control’s Specially Designated Nationals and Blocked Persons List; and (f) are not a debarred or suspended contractor of the State of Colorado. CONTRACTOR shall immediately notify CUSTOMER in the event that CONTRACTOR is no longer able to make such representations and warranties. Without limitation to any other rights and remedies under this Agreement, afforded by law, or in equity, CUSTOMER may terminate this Agreement, without penalty, with five (5) days written notice, in the event that CUSTOMER has determined that CONTRACTOR is in breach of this provision. 23. CONFLICT OF INTEREST. CONTRACTOR represents and warrants to CUSTOMER that: (a) no employee (or their spouse, parent, brothers, sisters, or relatives) of CUSTOMER or its affiliates is an officer, director, trustee, partner, or agent of CONTRACTOR; (b) no employee (or their spouse, parent, brothers, sisters, or relatives) of CUSTOMER or its affiliates has a five percent (5%) or more interest in the business of CONTRACTOR; (c) neither CONTRACTOR nor any employee, agent, or representative of CONTRACTOR shall offer gifts or kick-backs, whether in cash or kind, of any kind or value or solicit special favors from any CUSTOMER agent or employee (or their spouse, parent, brothers, sisters, or relatives) of CUSTOMER or its affiliates (including, without limitation, physicians and staff members); (d) CONTRACTOR’s employees, agents, subcontractors, and representatives shall not participate in individual deliveries of products or services to any employee (or their spouse, parent, brothers, sisters, or relatives) of CUSTOMER or its affiliates; and (e) CONTRACTOR, shall immediately reveal to CUSTOMER any conflicts, or the appearance of a conflict (including, without limitation, recommending or subcontracting services to an affiliate of CONTRACTOR).           6 4838-7517-4049.3 24. HIPAA. To the extent that this Agreement requires a Business Associate Agreement as defined under the Health Insurance Portability and Accountability Act of 1996, P. L. 104-191 (the “Act”), the parties without limitation to its other requirements under HIPAA and other federal, state and local laws and regulations, agree to comply with the Act, the privacy standards set forth in 45 C.F.R. Parts 160 and 164 (the “Privacy Rule”), the security standards set forth in 45 C.F.R. Parts 160, 162, and 164 (the “Security Rule”), and the Health Information Technology for Economic Clinical Health Act, Title XIII of Division A and Title IV of Division D of Pub. L. 111-5 (“HITECH”) and all of the rules and regulations implemented thereunder. The Act, the Privacy Rule, the Security Rule, and HITECH are collectively referred to as “HIPAA.” All defined terms under HIPAA shall have the same meaning in this Agreement, and are incorporated herein by reference. Without limitation to other rights and remedies under the Agreement or afforded by law, CUSTOMER may upon five (5) business days written notice terminate the Agreement in the event that it has determined that there is a material breach with this provision. The parties shall execute additional mutually agreed upon documents, including but not limited to a Business Associate Agreement, attached as Exhibit B if applicable, as required under HIPAA rules and regulations to assure the safeguarding of protected health information. In the event such documentation is not agreed upon and executed, either party may terminate the Agreement with thirty (30) days written notice. 25. SEVERABILITY. If any portion of this Agreement is held invalid or unenforceable by a court decision, statute, rule, or otherwise, then it shall be deemed modified so as to make it valid and enforceable, consistent with the parties' manifest intentions, or if it cannot be so modified, shall be deemed stricken from this Agreement. In either case, the remaining portions of this Agreement shall remain in full force and effect, unless their enforcement without the stricken provision would be inconsistent with the parties' manifest intentions. 26. HEADINGS. Any captions or headings contained in this Agreement are inserted only as a matter of convenience and in no way define, limit, or extend the scope or intent of this Agreement or any provision hereof. 27. TAXES. The parties acknowledge that CUSTOMER is a non-profit organization exempt from the payment of Colorado sales and use taxes. CONTRACTOR is responsible for requesting and obtaining all required tax exemption numbers. 28. SURVIVAL. The provisions of this Agreement that may reasonably be interpreted or construed as surviving the expiration or termination of the Agreement (including, without limitation, indemnification, insurance, confidentiality, work product and proprietary rights, books and records, and governing law) shall so survive. 29. JOINTLY DRAFTED. This Agreement shall be deemed to be jointly drafted by both parties and, in the event of a dispute, shall not be construed against or in favor of either party on account of its participation in the drafting hereof. 30. CONFLICTING TERMS. In the event of a conflict between the terms and conditions of any exhibit, schedule, or other attachment hereto and the terms and conditions of this Agreement, the terms and conditions of this Agreement shall prevail. 35. AUDIT. During the term of this Agreement and for a period of four (4) years thereafter, CUSTOMER shall have the right to engage, at its expense, external or internal auditors (collectively the “Auditors”) for the purpose of performing audits that may be required by CUSTOMER to determine the accuracy and correctness of accounting, backup procedures, and internal controls performed or maintained by CONTRACTOR in connection with this Agreement. CONTRACTOR shall cooperate by timely           7 4838-7517-4049.3 furnishing such Auditors with any and all information as is reasonably necessary to perform and complete all audit procedures determined to be necessary by the Auditors. Any such audit will be conducted during CONTRACTOR’s normal business hours and in such a manner to reasonably avoid undue disruption of CONTRACTOR’s operations. 36. COUNTERPARTS. Provided that all parties hereto execute a copy of this Agreement, this Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Executed copies of this Agreement may be delivered by facsimile transmission or other comparable means. 33. CHANGE OF LAW. Notwithstanding anything contained herein to the contrary, either party may notify the other in writing of its intention to terminate this Agreement if at any time any federal, state or local government law, regulation or policy, or the policies of any material third party payor, or interpretations of the foregoing given by a reputable health care attorney, by virtue of this Agreement, cause either party to fail to comply with any such law, regulation, policy or interpretation or shall materially impair (impairment being considered in the legal compliance, operational or financial sense) the continuing validity and/or effectiveness of any material provision hereof. This termination will become effective only if the parties in good faith are unable to agree, within thirty (30) days after receipt of notice of such impairment, upon a modification to this Agreement that will bring the Agreement into compliance with the law, regulation or policy at issue. 34. AUTHORIZATION. The parties acknowledge that CUSTOMER is authorized to enter into this Agreement on its own behalf and/or on behalf of its Affiliates. For purposes of this Agreement, “Affiliates” shall mean those organizations controlling, controlled by, or under common control with CUSTOMER. CONTRACTOR shall bill CUSTOMER or its designated Affiliates for their respective use of the Services provided under this Agreement. The rights and obligations of this Agreement shall apply to each Affiliate. No Affiliate shall be responsible for any act, omission, or financial obligation of CUSTOMER or any other Affiliate under this Agreement; nor shall CUSTOMER be responsible for any act, omission, or financial obligation of any Affiliate. 35. Notwithstanding anything to the contrary contained in this Agreement, County shall have no obligations under this Agreement after, nor shall any payments be made to Contractor in respect of any period after December 31 of any year, without an appropriation therefor by County in accordance with a budget adopted by the Board of County Commissioners in compliance with Article 25, title 30 of the Colorado Revised Statutes, the Local Government Budget Law (C.R.S. 29-1-101 et. seq.) and the TABOR Amendment (Colorado Constitution, Article X, Sec. 20). 36. The parties hereto understand and agree that the County is relying on, and does not waive or intend to waive by any provision of this Agreement, the monetary limitations or rights, immunities and protections provided by the Colorado Governmental Immunity Act, as from time to time amended, or otherwise available to County, its affiliated entities, successors or assigns, its elected officials, employees, agents and volunteers. Signature page follows           8 4838-7517-4049.3 IN WITNESS WHEREOF, this Agreement has been executed by each party’s duly authorized representatives as of the date first written above. VAIL CLINIC, INC. By: Name: Title: Date: CONTRACTOR COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its COUNTY MANAGER By: ______________________________ Jeff Shroll, County Manager            $# #! !"%  9 4838-7517-4049.3 EXHIBIT A SERVICES CONTRACTOR shall provide the following services to CUSTOMER: 1. Provide the Family Connects services to families who deliver at the hospital and consent to participation in the Family Connects program 2. Recruitment of Vail Health patients while at the Family Birthing Center for the Family Connects program 3. Provide training to hospital nurses on key talking points regarding the Family Connects program 4. Provide feedback regarding trends in data regarding Vail Health patients 5. Communicate with Vail Health’s providers as necessary           10 4838-7517-4049.3 EXHIBIT B VAIL CLINIC INC. BUSINESS ASSOCIATE AGREEMENT           January 2022 1 HIPAA BUSINESS ASSOCIATE AGREEMENT This BUSINESS ASSOCIATE AGREEMENT (the “Agreement”) is effective as of date of the Professional Services Agreement (the “Effective Date”) by and between Vail Health Services and all affiliated covered entities (Vail Health) and Eagle County (“Contractor”). Recitals: WHEREAS, the parties have entered into an agreement (the “Services Agreement”) in order for Contractor to provide certain services to Vail Health (“Services”) that involve the access, Use and/or Disclosure of PHI (as defined below) and such PHI will be protected in compliance with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), and its regulations, as amended by the Health Information Technology for Economic and Clinical Health Act of the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, Title XIII (2009) (the “HITECH Act”) and its implementing regulations and guidance issued by the Secretary of the U.S. Department of Health and Human Services (the “Secretary”) (collectively, the “HIPAA Regulations”); and WHEREAS, both parties are subject to the HIPAA Regulations, either as a Covered Entity or a Business Associate, and as such, are required to agree to specific terms that govern the Use and Disclosure of PHI Disclosed by Vail Health to Contractor in conjunction with the Services Agreement; and WHEREAS, the parties wish to enter into this Agreement in order to comply with HIPAA. NOW, THEREFORE, in consideration of the mutual promises and covenants set forth below, VAIL HEALTH and Contractor agree as follows: 1. Definitions (a) General. Capitalized terms used, but not otherwise defined, in this Agreement shall have the meanings set forth in the HIPAA Regulations. (b) “Disclose” and “Disclosure” mean, with respect to PHI, the release, transfer, provision of access to, or divulging in any other manner of PHI outside of Business Associate or to other than members of its Workforce, as set forth in 45 C.F.R. § 160.103. (c) “Electronic PHI” or “e-PHI” means PHI that is transmitted or maintained in electronic media, as set forth in 45 C.F.R. § 160.103. (d) “Personal Information” shall have the meaning given to such term under Colo. Rev. Stat. § 6-1-716(1). (e) “Protected Health Information” and “PHI” mean any information, whether oral or recorded in any form or medium, provided by Vail Health to Contractor, that: (a)           January 2022 2 relates to the past, present or future physical or mental health or condition of an individual; the provision of health care to an individual, or the past, present or future payment for the provision of health care to an individual; (b) identifies the individual (or for which there is a reasonable basis for believing that the information can be used to identify the individual); and (c) shall have the meaning given to such term under 45 C.F.R. § 160.103. Protected Health Information includes e-PHI. (f) “Required by Law” shall have the meaning given to such term under 45 C.F.R. § 164.103. (g) “Unsecured PHI” shall have the meaning given to such term under 42 U.S.C. § 17932(h), 45 C.F.R. § 164.402, and guidance issued pursuant to the HITECH Act including, but not limited to the guidance issued on April 17, 2009 and published in 74 Federal Register 19006 (April 27, 2009) by the Secretary. (h) “Use” or “Uses” mean, with respect to PHI, the sharing, employment, application, utilization, examination or analysis of such PHI within Business Associate’s internal operations, as set forth in 45 C.F.R. § 160.103. 2. Permitted Uses and Disclosures of Protected Health Information by Contractor (a) Use or Disclosure of Information. Contractor shall not Use, or Disclose Personal Information and/or PHI received, created, maintained, or transmitted for or on behalf of, Vail Health other than to perform the Services described in the Services Agreement, and as expressly permitted or required by this Agreement or as Required By Law. (b) Mitigation. Contractor agrees to mitigate, to the extent practicable, any harmful effect that is known to Contractor of a Use or Disclosure of PHI by Contractor in violation of this Agreement. (c) Safeguards. Contractor shall use appropriate administrative, technical and physical safeguards and comply with Subpart C of 45 CFR Part 164 to protect the confidentiality of PHI received from Vail Health to prevent the Use or Disclosure of PHI other than as provided for in this Agreement. (d) Reporting. (i) Contractor agrees to report to Vail Health any Use or Disclosure of personal information and or Unsecured PHI in violation of the applicable HIPAA Regulations and Colorado Data Breach Notification Law, including but not limited to C.R.S. 6-1-716(“Colorado Data Breach Notification Law”), or this Agreement of which Contractor becomes aware, including, without limitation, any impermissible or improper Use, Disclosure, Security Incident or Breach of Unsecured PHI within forty-eight (48) hours of discovery of same in accordance with Section 6(i), “Notices,” of this Agreement.           January 2022 3 (ii) Contractor shall provide a written report to Vail Health of such Breach without unreasonable delay but no later than five (5) business days after discovery of the Breach. Contractor shall be deemed to have discovered a Breach as of the first day that the Breach is either known to Contractor or any of its Workforce or agents, other than the person who committed the Breach, or by exercising reasonable diligence should have been known to Contractor or any of its Workforce or agents, other than the person who committed the Breach. To the extent the information is available to Contractor, Contractor’s written notice shall include the information required by 45 C.F.R. §164.410(c). Contractor shall promptly supplement the written report with additional information regarding the Breach as it obtains such information. Contractor shall cooperate with Vail Health in meeting Vail Health’s obligations with respect to such Breach. Vail Health 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. Contractor shall reimburse Vail Health 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. (iii) Contractor agrees that if Vail Health determines or has a reasonable belief that Contractor may have Used, made a Disclosure of, or permitted access to PHI in a way that is not authorized by this Agreement, then Vail Health may in its sole discretion require Contractor to: (a) promptly investigate and provide a written report to Vail Health of Contractor’s determination regarding any alleged or actual unauthorized Disclosure, access or Use; (b) cease such practices immediately; (c) return to Vail Health or destroy all PHI; and (d) take any other action Vail Health deems appropriate, as required by law or deemed reasonable by both parties. (e) Subcontractors and Agents. Contractor shall ensure that any agent or subcontractor to whom it provides PHI agrees to the same restrictions and conditions that apply to the Contractor under this Agreement with respect to such PHI in its possession. (f) Access. Contractor agrees to provide access, when requested by Vail Health, to PHI in such Designated Record Set in order to comply with the requirements under 45 C.F.R. § 164.524. Such access shall be provided by Contractor in the time and manner reasonably requested by Vail Health or the Individual. (g) Amendment. When requested by Vail Health, Contractor agrees to make any amendment(s) to PHI in such Designated Record Set that Vail Health or the Individual directs or agrees to pursuant to 45 C.F.R. § 164.526. Such amendments shall be made by Contractor in the time and manner reasonably requested by Vail Health or the Individual. In the event Contractor receives an amendment request           January 2022 4 directly from an Individual, Contractor shall forward the request to Vail Health promptly upon receipt. (h) Audit and Inspection. Contractor agrees to make its internal practices, books, and records, including policies and procedures relating to the Use and Disclosure of PHI, available to Vail Health or the Secretary or his or her designee for the limited purposes of the Secretary determining Vail Health’s compliance with HIPAA, as requested by Vail Health or the Secretary. Additionally, Vail Health reserves the right to audit the Business Associate and information security controls and processes of any associated Service Providers and to perform relevant tests to ensure that it is compliant with applicable HIPAA information security and privacy requirements as well as the requirements within this contract. Business Associate will permit Vail Health to perform an information security audit, including an audit of technical, physical and administrative security of any applicable Service Provider premises applicable to the engagement and will cooperate and furnish all requested materials in a timely manner, within no more than three business days. (i) Documentation of Disclosures/Accounting. Contractor agrees to document any Disclosures of PHI and any information related to such Disclosures as would be required for Vail Health to respond to a request by an Individual for an accounting in accordance with 45 C.F.R. § 164.528, and upon request by Vail Health, to provide such information to Vail Health or to the Individual. In the event Contractor receives an accounting request directly from an Individual, Contractor shall forward the request to Vail Health immediately upon receipt. (j) Compliance with Privacy Rule. To the extent that Vail Health is a Covered Entity and Contractor is performing an obligation of Vail Health under the Privacy Rule, Contractor shall comply with the requirements of the Privacy Rule that apply to a Covered Entity in the performance of such obligation. (k) Other Laws. Contractor understands that Vail Health is subject to State and Federal laws in addition to HIPAA governing the privacy and security of PHI. Contractor agrees to abide by all such laws, whether or not fully articulated herein, and to keep the PHI in the same manner and subject to the same standards as is required of Vail Health. 3. Permitted Uses and Disclosures (a) Services. Subject to the provisions of Section 4 below, and except as otherwise limited in this Agreement, Contractor may Use or Disclose PHI to perform functions, activities, or services for, or on behalf of, Vail Health or Contractor if such Use or Disclosure of PHI would not violate HIPAA or the HIPAA Regulations. (b) Minimum Necessary. Contractor (and its Subcontractors) shall, to the extent practicable, limit its request, Use, or Disclosure of PHI to the minimum amount of PHI necessary to accomplish the purpose of the request, Use or Disclosure, in           January 2022 5 accordance with 42 U.S.C. § 17935(b) and 45 C.F.R. § 164.502(b)(1) or any other guidance issued thereunder. (c) Business Activities. Except as otherwise limited in this Agreement, Contractor may Use and Disclose PHI for its proper management and administration of Contractor or to meet its legal responsibilities. 4. Obligations of Vail Health (a) Restrictions. To the extent that such limitations may affect Contractor’s Use or Disclosure of PHI, Vail Health shall notify Contractor of (i) any limitations in any applicable notice of privacy practices as required under 45 C.F.R. 164.520, as well as any changes to that notice, (ii) any changes in, or revocation of, permission by an Individual to Use or Disclose PHI, and (iii) any restriction to the Use or Disclosure of PHI agreed to in accordance with 45 C.F.R. 164.522. (b) Requests. Vail Health shall not request Contractor to Use or Disclose PHI in any manner that would not be permissible under HIPAA if done by Vail Health. 5. Term and Termination (a) Term. This Agreement shall be effective as of the Effective Date and shall continue unless or until the Agreement is terminated in accordance with the provisions of Section 5(b), or the Agreement between the parties terminates. (b) Termination for Cause. Upon knowledge of a material breach by either party, either party shall either (i) provide an opportunity for the other party to cure the breach or end the violation and, if other party does not cure the breach or end the violation within the cure period specified in the Agreement or if none is specified, then within ten (10) days, terminate this Agreement and the Services Agreement; (ii) immediately terminate this Agreement and the Services Agreement if cure is not possible; or (iii) if neither termination nor cure are possible, either party shall report the violation to the Secretary. (c) Effect of Termination. (i) Upon termination of this Agreement or the Services Agreement for any reason, Contractor shall return or destroy all PHI received from Vail Health. Contractor shall retain no copies of the PHI in any form. Contractor shall promptly provide written confirmation of such destruction to Vail Health. (ii) Notwithstanding the foregoing, in the event that Contractor determines that returning or destroying the PHI is infeasible, Contractor shall provide to Vail Health notification of the conditions that make return or destruction infeasible. If the return or destruction of PHI is infeasible, Contractor shall extend the protections of this Agreement to such PHI and limit further Uses and Disclosures of such PHI to those purposes that make the return or destruction infeasible, for so long as Contractor maintains such PHI.           January 2022 6 6. Miscellaneous (a) Survival. The respective rights and obligations of Contractor under 5(c) and 6(a) of this Agreement shall survive the termination of this Agreement. (b) Amendments. No amendment to this Agreement shall be effective unless it is in writing and signed and dated by the parties hereto or as required by law or regulations. The parties recognize that the Secretary may issue further amendments to the HIPAA Regulations pursuant to the Secretary’s authority under law. (c) Interpretation. Construction of this Agreement shall be resolved in favor of a meaning that permits both parties to comply with applicable law protecting the privacy, security and confidentiality of PHI, including but not limited to HIPAA and the HIPAA Regulations. To the extent that any provisions of this Agreement conflict with the provisions of any other agreement or understanding between the parties, this Agreement shall control. (d) Other Federal and State Law. The parties agree to comply with other federal and state law as may apply to the Protected Health Information. In the event of a conflict between the requirements of such other law and the requirements stated herein, the applicable law under a conflict-of-law analysis, including the preemption analysis required under HIPAA, shall apply. (e) Waiver. No failure to exercise and no delay in exercising any right, remedy or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy or power hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy or power provided herein or by law or in equity. (f) Subpoena. In the event that Contractor receives a subpoena for any PHI in Contractor’s possession, Contractor shall immediately notify Vail Health and deliver a copy of the subpoena to Vail Health. Contractor shall respond to the subpoena only in accordance with the Privacy Rule. (g) Indemnification. Intentionally Omitted. (h) No Third-Party Beneficiaries. Nothing express or implied in this Agreement is intended or shall be deemed to confer upon any person other than Vail Health, Contractor, and their respective successors and assigns, as permitted pursuant to the Agreement, any rights, obligations, remedies or liabilities. (i) Notices. . Any notice required to be provided under the terms and provisions of this Agreement shall be in writing, and shall be deemed to be delivered when deposited in the United States mail, postage prepaid, certified mail, return receipt requested, or sent by national overnight courier service (e.g., Federal Express, UPS) and addressed to the respective party at the address set forth below, or at any such address(es) or person(s) as each may specify by written notice given to the other           January 2022 7 party in the manner specified herein. Notwithstanding the above, notices may also be provided by personal delivery and shall be effective upon actual receipt. If to CUSTOMER: Eagle County Attention: Heath Harmon 550 Broadway Post Office Box 660 Eagle, CO 81631 Telephone: 970-328-8818 E-Mail: Heath.Harmon@eaglecounty.us With a copy to: Eagle County Attorney 500 Broadway Post Office Box 850 Eagle, Co 81631 Telephone: 970-328-8685 E-Mail: atty@eaglecounty.us If to Vail Health: Compliance Officer P.O. Box 40,000 Vail, CO 81658 E-Mail: Privacy@vailhealth.org (j) Entire Agreement. This Agreement together with the Services Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof, and all prior and contemporaneous understandings, agreements and representations, whether oral or written, with respect to such matters are superseded. (k) Assignment. No assignment of this Agreement or the rights and obligations hereunder shall be valid without the specific written consent of both parties hereto, provided, however, that this Agreement, in conjunction with an assignment of the Services Agreement to the same assignee, may be assigned by Vail Health to any successor entity operating Vail Health, and such assignment shall forever release Vail Health hereunder. (l) Binding Effect. This Agreement shall be binding upon the parties hereto and their respective heirs, executors, administrators, successors and permitted assigns. (m) Non-Exclusivity. Nothing in this Agreement shall be construed as limiting the right of either party to affiliate or contract with any other person or entity on either a limited or general basis while this Agreement is in effect.           January 2022 8 (n) Signatures. This Agreement may be executed in counterparts, each of which when so executed and delivered shall be deemed an original and all of which taken together shall constitute one instrument. This Agreement and any counterpart original may be executed and transmitted by facsimile. The facsimile signature shall be valid and acceptable for all purposes as if it were an original. IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the Effective Date. Vail Health: ______________________________ By: __________________________ Title: ________________________ Date: _________________________ CONTRACTOR COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its COUNTY MANAGER By: ______________________________ Jeff Shroll, County Manager