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Services Agreement
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SERVICES AGREEMENT
THIS AGREEMENT made and entered into the day and year set forth below by and
between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter
referred to as the "City" and AOTSHP, LLC DBA NEWORK ENTERPRISES, a(n) Colorado
Limited Liability Company, hereinafter referred to as "Service Provider".
WITNESSETH:
In consideration of the mutual covenants and obligations herein expressed, it is agreed by
and between the parties hereto as follows:
1. Scope of Services. The Service Provider agrees to provide services in accordance with the
scope of services attached hereto as Exhibit A, consisting of two (2) pages and incorporated
herein by this reference.
2. Contract Period. This Agreement shall commence upon execution by all parties and shall
continue in full force and effect until October 31, 2024, unless sooner terminated as herein
provided. In addition, at the option of the City, the Agreement may be extended for additional
one year periods not to exceed four (4) additional one year periods. Renewals and pricing
changes shall be negotiated by and agreed to by both parties only at the time of renewal.
Written notice of renewal shall be provided to the Service Provider and mailed no later than
thirty (30) days prior to contract end.
3. Delay. If either party is prevented in whole or in part from performing its obligations by
unforeseeable causes beyond its reasonable control and without its fault or negligence, then
the party so prevented shall be excused from whatever performance is prevented by such
cause. To the extent that the performance is actually prevented, the Service Provider must
provide written notice to the City of such condition within ten (10) days from the onset of such
condition.
4. Early Termination. Notwithstanding the time periods contained herein, the City may terminate
this Agreement at any time without cause by providing written notice of termination to the
Service Provider. Such notice shall be delivered at least ten (10) days prior to the termination
date contained in said notice unless otherwise agreed in writing by the parties. In the event of
early termination by the City, the Service Provider shall be paid for services rendered to the
date of termination, subject only to the satisfactory performance of the Service Provider's
obligations under this Agreement. Service Provider shall submit a final invoice within thirty
(30) days of the effective date of termination. Undisputed invoices shall be paid Net 30 days
of the date of the invoice. Such payment shall be the Service Provider's sole right and remedy
for such termination. Likewise, Service Provider may terminate this Agreement at any time
without cause by providing thirty (30) days written notice of termination to the City
5. Notices. All notices provided under this Agreement shall be effective immediately when
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emailed or three (3) business days from the date of the notice when mailed to the following
addresses:
Service Provider: City: Copy to:
AOTSHP, LLC dba
NEWork Enterprises
Attn: Dona Leonard
4921 Saddlewood Circle
Johnstown, CO 80534
Dona.leonard@neworkenterprises.com
City of Fort Collins
Attn: Bethany Mosbey
PO Box 580
Fort Collins, CO 80522
bmosbey@fcgov.com
City of Fort Collins
Attn: Purchasing Dept.
PO Box 580
Fort Collins, CO 80522
purchasing@fcgov.com
6. City Representative. The City will designate, prior to commencement of the work, its
representative who shall make, within the scope of his or her authority, all necessary and
proper decisions with reference to the services provided under this agreement. All requests
for contract interpretations, change order, and other clarification or instruction shall be directed
to the City Representative.
The initial City Representative for this agreement is Bethany Mosbey and can be reached at
bmosbey@fcgov.com or 970-221-6708. The Representative is subject to change by the City.
7. Compensation. The City shall pay the Service Provider for the performance of this Contract,
subject to additions and deletions provided herein, as per the attached Exhibit B, consisting
of one (1) page and incorporated herein by this reference.
Invoices shall be emailed to invoices@fcgov.com with a copy to the City Representative. The
cost of the work completed shall be paid to the Service Provider following the submittal of a
correct itemized invoice by the Service Provider. The City is exempt from sales and use
tax. The City’s Certificate of Exemption license number is 09804502. A copy of the license
is available upon written request.
The City pays invoices on Net 30 days from the date of the invoice.
8. Appropriation. To the extent this Agreement or any provision in it constitutes a multiple fiscal
year debt or financial obligation of the City, it shall be subject to annual appropriation by City
Council as required in Article V, Section 8(b) of the City Charter, City Code Section 8 -186,
and Article X, Section 20 of the Colorado Constitution. The City shall have no obligation to
continue this Agreement in any fiscal year for which no such supporting appropriation has
been made.
9. Independent Service Provider. The services to be performed by Service Provider are those
of an independent service provider and not of an employee of the City of Fort Collins. The
City shall not be responsible for withholding any portion of Service Provider's compensation
hereunder for the payment of FICA, Workmen's Compensation or other taxes or benefits or
for any other purpose.
10. Subcontractors. Service Provider may not subcontract any of the Work set forth in the Exhibit
A, Statement of Work without the prior written consent of the City, which shall not be
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unreasonably withheld. If any of the Work is subcontracted hereunder (with the consent of
the City), then the following provisions shall apply: (a) the subcontractor must be a reputable,
qualified firm with an established record of successful performance in its respective trade
performing identical or substantially similar work, (b) the subcontractor will be required to
comply with all applicable terms of this Agreement, (c) the subcontract will not create any
contractual relationship between any such subcontractor and the City, nor will it obligate the
City to pay or see to the payment of any subcontractor, and (d) the work of the subcontractor
will be subject to inspection by the City to the same extent as the work of the Service Provider.
Irrespective of any subcontractors named in Exhibit A, Service Provider shall be solely
responsible for performance of all duties hereunder.
11. Personal Services. It is understood that the City enters into the Agreement based on the
special abilities of the Service Provider and that this Agreement shall be considered as an
agreement for personal services. Accordingly, the Service Provider shall neither assign any
responsibilities nor delegate any duties arising under the Agreement without the prior written
consent of the City.
12. Acceptance Not Waiver. The City's approval or acceptance of, or payment for any of the
services shall not be construed to operate as a waiver of any rights or benefits provided to the
City under this Agreement or cause of action arising out of performance of this Agreement.
13. Warranty.
a. Service Provider warrants that all work performed hereunder shall be performed with the
highest degree of competence and care in accordance with accepted standards for work
of a similar nature.
b. Unless otherwise provided in the Agreement, all materials and equipment incorporated
into any work shall be new and, where not specified, of the most suitable grade of their
respective kinds for their intended use, and all workmanship shall be acceptable to City.
14. Default. Each and every term and condition hereof shall be deemed to be a material element
of this Agreement. In the event either party should fail or refuse to perform according to the
terms of this agreement, such party may be declared in default thereof.
15. Remedies. In the event a party has been declared in default, such defaulting party shall be
allowed a period of ten (10) days within which to cure said default. In the event the default
remains uncorrected, the party declaring default may elect to (a) terminate the Agreement and
seek damages; (b) treat the Agreement as continuing and require specific performance; or (c)
avail themselves of any other remedy at law or equity. If the non-defaulting party commences
legal or equitable actions against the defaulting party, the defaulting party shall be liable to
the non-defaulting party for the non-defaulting party's reasonable attorney fees and costs
incurred because of the default.
16. Entire Agreement; Binding Effect; Order of Precedence; Authority to Execute. This
Agreement, along with all Exhibits and other documents incorporated herein, shall constitute
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the entire Agreement of the parties regarding this transaction and shall be binding upon said
parties, their officers, employees, agents and assigns and shall inure to the benefit of the
respective survivors, heirs, personal representatives, successors and assigns of said
parties. Covenants or representations not contained in this Agreement shall not be binding
on the parties. In the event of a conflict between terms of the Agreement and any exhibit or
attachment, the terms of the Agreement shall prevail. Each person executing this Agreement
affirms that they have the necessary authority to sign on behalf of their respective party and
to bind such party to the terms of this Agreement.
17. Indemnity/Insurance.
a. The Service Provider agrees to indemnify and save harmless the City, its officers, agents
and employees against and from any and all actions, suits, claims, demands or liability of
any character whatsoever brought or asserted for injuries to or death of any person or
persons, or damages to property arising out of, result from or occurring in connection with
the performance of any service hereunder.
b. The Service Provider shall take all necessary precautions in performing the work
hereunder to prevent injury to persons and property.
c. Without limiting any of the Service Provider's obligations hereunder, the Service Provider
shall provide and maintain insurance coverage naming the City as an additional insured
under this Agreement of the type and with the limits specified within Exhibit C, consisting
of one (1) page attached hereto, and incorporated herein by this reference. The Service
Provider before commencing services hereunder, shall deliver to the City's Purchasing
Director, purchasing@fcgov.com or P. O. Box 580, Fort Collins, Colorado 80522, one copy
of a certificate evidencing the insurance coverage required from an insurance company
acceptable to the City.
18. Law/Severability. The laws of the State of Colorado shall govern the construction,
interpretation, execution, and enforcement of this Agreement. The Parties further agree that
Larimer County District Court is the proper venue for all disputes. If the City subsequently
agrees in writing that the matter may be heard in federal court, venue will be in Denver District
Court. In the event any provision of this Agreement shall be held invalid or unenforceable by
any court of competent jurisdiction, such holding shall not invalidate or render unenforceable
any other provision of this Agreement.
19. Prohibition Against Unlawful Discrimination. The City, in accordance with the provisions of
Title VI of the Civil Rights Act of 1964 (78 Stat. 252, 42 US.C. §§ 2000d to 2000d-4) and the
Regulations, affirmatively ensures that for all contracts entered into with the City,
disadvantaged business enterprises are afforded a full and fair opportunity to bid on the
contract and are not to be discriminated against on the grounds of race, color, or national
origin in consideration for an award.
The City strictly prohibits unlawful discrimination based on an individual’s gender (regardless
of gender identity or gender expression), race, color, religion, creed, national origin, ancestry,
age 40 years or older, marital status, disability, sexual orientation, genetic information, or other
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characteristics protected by law. For the purpose of this policy “sexual orientation” means a
person’s actual or perceived orientation toward heterosexuality, homosexuality, and
bisexuality. The City also strictly prohibits unlawful harassment in the workplace, including
sexual harassment. Further, the City strictly prohibits unlawful retaliation against a person who
engages in protected activity. Protected activity includes an employee complaining that he or
she has been discriminated against in violation of the above policy or participating in an
employment discrimination proceeding.
The City requires its vendors to comply with the City’s policy for equal employment opportunity
and to prohibit unlawful discrimination, harassment and retaliation. This requirement applies
to all third-party vendors and their subcontractors at every tier.
20. Governmental Immunity Act. No term or condition of this Agreement shall be construed or
interpreted as a waiver, express or implied, of any of the notices, requirements, immunities,
rights, benefits, protections, limitations of liability, and other provisions of the Colorado
Governmental Immunity Act, C.R.S. § 24-10-101 et seq. and under any other applicable law.
21. Colorado Open Records Act. The City is subject to Sec. 24-72-201 et seq. of the Colorado
Revised Statute (CORA). This Agreement is subject to public disclosure in whole pursuant to
CORA.
22. Force Majeure. No Party hereto shall be considered in default in the performance of an
obligation hereunder to the extent that performance of such obligation is delayed, hindered,
or prevented by force majeure. Force majeure shall be any cause beyond the control of the
defaulting Party which could not reasonably have been foreseen and guarded against. Force
majeure includes, but is not limited to, acts of God, fires, riots, pandemics, incendiarism,
interference by civil or military authorities, compliance with regulations or orders of military
authorities, and acts of war (declared or undeclared), provided such cause could not have
been reasonably foreseen and guarded against by the defaulting Party. Force majeure shall
not include increases in labor, commodity, utility, material, supply, fuel, or energy costs, or
compliance with regulations or orders of civil authorities. To the extent that the performance
is actually prevented, the Service Provider must provide written notice to the City of such
condition within ten (10) days from the onset of such condition.
23. Special Provisions. Special provisions or conditions relating to the services to be performed
pursuant to this Agreement are set forth in Exhibit D - Confidentiality, consisting of
one (1) page; and Exhibit E - Business Associate Agreement, consisting of eight (8) pages,
attached hereto, and incorporated herein by this reference.
[Signature Page Follows]
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THE CITY OF FORT COLLINS, COLORADO
By:
Gerry Paul, Purchasing Director
Date:
ATTEST:
APPROVED AS TO FORM:
AOTSHP, LLC DBA NEWORK ENTERPRISES
By:
Printed:
Title:
Date:
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Dona Leonard
Occupational Therapist / Owner
11/8/2023
Assistant City Attorney
11/15/2023
City Clerk
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EXHIBIT A
SCOPE OF SERVICES
I. BACKGROUND & OBJECTIVE / OVERVIEW
A. Objective
The City of Fort Collins is engaging the Service Provider to provide a variety of functional
employment, safety, and environmental testing and other assorted occupational health
services. Please note that this is not an exclusive Agreement; rather the City has two
agreements in place for these services.
B. Background
The City of Fort Collins is a full-service municipal organization and has a vibrant and
diverse work force. With approximately 1,500 full time employees and close to 1,000
additional seasonal and hourly employees, the City strives to lead our community as a
safe and inclusive employer. One step to achieve this is to offer accurate job descriptions
with detailed physical demands included. Some positions also require a Pre-Employment
Post-Offer screening to determine if the desired candidate is safe to perform the essential
functions of the job they have been offered.
The City of Fort Collins is seeking a Service Provider/Professional able to provide onsite
job task analysis, collect precise data regarding the physical requirements of the job,
provide recommended changes to improve safety and reduce risk for tasks when
applicable.
II. SCOPE OF PROPOSAL
A. Scope of Work
1. General City-wide Service Needs
The City will require the Service Provider/Professional to be available as an onsite
provider for ergonomic consultations, job task and physical demands analysis, which
will be used to construct Americans with Disabilities Act (ADA) and Employment Equal
Opportunity Commission (EEOC) compliant and legally defensible job descriptions for
each position at the City. The Service Provider/Professional will partner with the City
to guide implementation within the City’s current Human Resources, Occupational
Medicine, and Safety and Risk Management (SRM) processes to provide ongoing
quality assurance and management support services to assure operational success
and legal compliance.
The following is an indicative, but not comprehensive, list of the services that may be
requested by the City:
• On Site Physical Demands Analysis/Job Task Analysis
− measuring and validating each job’s essential and non-essential tasks with
standardized frequency and duration measurements.
− approximately 4-6 new per month completion goal with annual reviews of all
current verified positions.
− Works with departments and SRM to ensure functional job descriptions are
accurate and capture certification requirements and other compliance
considerations
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− assist with modified duty and return to work processes
• Ergonomics Expert
− Assist with ergonomic surveillance
− Performs assessment as ordered by occupational health physician to assist with
injury causality determination
2. Administrative Service Expectations
The Service Provider/Professional is expected to provide the following administrative
type services in support of this program:
• Validation
− Annual review surveying subject matter experts (incumbent workers and
supervisors) to confirm essentiality and accuracy of the job-task simulations
− Confirms compliance with federal requirements
• Integration with Current Risk Management Information System (RMIS) and HR
software
− Document retention
− Formatting specific to City of Fort Collins needs
− Nomenclature for files consistent
− Meets individual billing requirements for ease of use in the City’s billing system
(Tungsten)
• Compliance with all relevant legal requirements, including EEOC and ADA
guidelines.
• Frequent Data Review Meetings
− Interpretation of data and predictive modeling associated with recruiting process
and injury risk.
− Assuring the program meets total business need.
3. Miscellaneous
Some City locations that the Service Provider/Professional may visit are active work
sites with additional safety considerations. The Service Provider/Professional is
expected to provide its personnel with appropriate personnel protection equipment
(PPE) for these locations according to OSHA standards. City personnel will notify the
Service Provider/Professional prior to a visit if a site has PPE requirements.
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EXHIBIT B
COMPENSATION
The following pricing shall remain fixed for the initial term of this Agreement. Any applicable price
adjustments may only be negotiated and agreed to in writing at the time of renewal.
Job Physical Demand Analysis Services Rate
Flat hourly rate for all aspects of job analysis services $250hr
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EXHIBIT C
INSURANCE REQUIREMENTS
The Service Provider will provide, from insurance companies acceptable to the City, the insurance
coverage designated hereinafter and pay all costs. Before commencing work under this bid, the
Service Provider shall furnish the City with certificates of insurance showing the type, amount,
class of operations covered, effective dates and date of expiration of policies.
In case of the breach of any provision of the Insurance Requirements, the City, at its option, may
take out and maintain, at the expense of the Service Provider, such insurance as the City may
deem proper and may deduct the cost of such insurance from any monies which may be due or
become due the Service Provider under this Agreement.
Insurance certificates should show the certificate holder as follows:
City of Fort Collins
Purchasing Division
PO Box 580
Fort Collins, CO 80522
The City, its officers, agents and employees shall be named as additional insureds on the Service
Provider 's general liability and automobile liability insurance policies by marking the appropriate
box or adding a statement to this effect on the certificate, for any claims arising out of work
performed under this Agreement.
Insurance coverages shall be as follows:
A. Workers' Compensation & Employer's Liability. The Service Provider shall maintain during
the life of this Agreement for all of the Service Provider's employees engaged in work
performed under this agreement. Workers' Compensation & Employer’s Liability insurance
shall conform with statutory limits of $100,000 per accident, $500,000 disease aggregate,
and $100,000 disease each employee, or as required by Colorado law.
B. General Liability. The Service Provider shall maintain during the life of this Agreement
such General Liability as will provide coverage for damage claims of personal injury,
including accidental death, as well as for claims for property damage, which may arise
directly or indirectly from the performance of work under this Agreement. Coverage for
property damage shall be on a "broad form" basis. The amount of insurance for General
Liability, shall not be less than $1,000,000 combined single limits for bodily injury and
property damage.
In the event any work is performed by a subcontractor, the Service Provider shall be responsible
for any liability directly or indirectly arising out of the work performed under this Agreement by a
subcontractor, which liability is not covered by the subcontractor's insurance.
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EXHIBIT D
CONFIDENTIALITY
IN CONNECTION WITH SERVICES provided to the City of Fort Collins (the “City”) pursuant to
this Agreement (the “Agreement”), the Service Provider hereby acknowledges that it has been
informed that the City has established policies and procedures with regard to the handling of
confidential information and other sensitive materials.
In consideration of access to certain information, data and material (hereinafter individually and
collectively, regardless of nature, referred to as “information”) that are the property of and/or relate
to the City or its employees, customers or suppliers, which access is related to the performance
of services that the Service Provider has agreed to perform, the Service Provider hereby
acknowledges and agrees as follows:
That information that has or will come into its possession or knowledge in connection with the
performance of services for the City may be confidential and/or proprietary. The Service Provider
agrees to treat as confidential (a) all information that is owned by the City, or that relates to the
business of the City, or that is used by the City in carrying on business, and (b) all information
that is proprietary to a third party (including but not limited to customers and suppliers of the City).
The Service Provider shall not disclose any such information to any person not having a legitimate
need-to-know for purposes authorized by the City. Further, the Service Provider shall not use
such information to obtain any economic or other benefit for itself, or any third party, except as
specifically authorized by the City.
The foregoing to the contrary notwithstanding, the Service Provider understands that it shall have
no obligation under this Agreement with respect to information and material that (a) becomes
generally known to the public by publication or some means other than a breach of duty of this
Agreement, or (b) is required by law, regulation or court order to be disclosed, provided that the
request for such disclosure is proper and the disclosure does not exceed that which is required.
In the event of any disclosure under (b) above, the Service Provider shall furnish a copy of this
Agreement to anyone to whom it is required to make such disclosure and shall promptly advise
the City in writing of each such disclosure.
In the event that the Service Provider ceases to perform services for the City, or the City so
requests for any reason, the Service Provider shall promptly return to the City any and all
information described hereinabove, including all copies, notes and/or summaries (handwritten or
mechanically produced) thereof, in its possession or control or as to which it otherwise has
access.
The Service Provider understands and agrees that the City’s remedies at law for a breach of the
Service Provider’s obligations under this Confidentiality Agreement may be inadequate and that
the City shall, in the event of any such breach, be entitled to seek equitable relief (including without
limitation preliminary and permanent injunctive relief and specific performance) in addition to all
other remedies provided hereunder or available at law.
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EXHIBIT E
HIPAA BUSINESS ASSOCIATE AGREEMENT
This Business Associate Agreement ("Agreement") is entered into on this date of October 1,
2023 (the "Effective Date"), by and between City of Fort Collins ("Covered Entity") and AOTSHP,
LLC dba NEWork Enterprises. ("Business Associate").
RECITALS:
WHEREAS, Covered Entity and Business Associate mutually desire to outline their
individual responsibilities with respect to the use and/or disclosure of Protected Health Information
("PHI") as mandated by the Privacy Rule promulgated under the Administrative Simplifications
subtitle of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") including all
pertinent regulations issued by the U.S. Department of Health and Human Services as outlined
in 45 C.F.R. Parts 160, 162 and 164; (“HIPAA Privacy Rules and/or Security Standards”)and
WHEREAS, Covered Entity and Business Associate understand and agree that the HIPAA
Privacy Rules and Security Standards requires the Covered Entity and Business Associate enter
into a Business Associate Agreement which shall govern the use and/or disclosure of PHI and
the security of PHI and ePHI.
NOW, THEREFORE, the parties hereto agree as follows:
Article I. Definitions. When used in this Agreement and capitalized, the following terms have
the following meanings:
Section 1.01 "Breach" shall mean the unauthorized acquisition, access, use, or
disclosure of PHI which comprises the security or privacy of such
information. However, the term 'breach' shall not include (1) any
unintentional acquisition, access, or use of PHI by an employee or
individual acting under the authority of a covered entity or business
associate if such acquisition, access, or use was made in good faith
and within the course and scope of the employment or other
professional relationship of such employee or individual, respectively,
with the covered entity or business associate; and such information is
not further acquired, accessed, used, or disclosed by any person; or (2)
any inadvertent disclosure from an individual who is otherwise
authorized to access protected health information at a facility operated
by a covered entity or business associate to another similarly situated
individual at same facility; and (3) any such information received as a
result of such disclosure is not further acquired, accessed, used, or
disclosed without authorization by any person.
Section 1.02 "Electronic Protected Health Information" or “ePHI” shall mean
Protected Health Information transmitted by electronic media or
maintained in electronic media.
Section 1.03 "Individual" shall have the same meaning as the term "Individual" in 45
C.F.R. §164.501 and shall include a person who qualifies as a personal
representative in accordance with 45 C.F.R. §164.502(g).
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Section 1.04 "Privacy Rule" shall mean the Standards for Privacy of Individual
Identifiable Health Information as set forth at 45 C.F.R. Parts 160 and
164 Subparts A and E.
Section 1.05 "Protected Health Information" or "PHI" shall have the same meaning
as the term "protected health information" in 45 C.F.R. § 164.501,
limited to the information created or received by Business Associate
from or on behalf of Covered Entity.
Section 1.06 "Required by Law" shall have the same meaning as the term "required
by law" in 45 C.F.R. § 164.501.
Section 1.07 "Secretary" shall mean the Secretary of the Department of Health and
Human Services or his or her designee.
Section 1.08 “Security Incident” shall mean any attempted or successful
unauthorized access, use, disclosure, modification or destruction of
information or systems operations in an electronic information system.
Section 1.09 “Security Rule” shall mean the Standards for Security of PHI, including
ePHI, as set forth at 45 C.F.R. Parts 160 and 164 Subpart C.
Section 1.10 “Unsecured Protected Health Information” shall mean protected health
information that is not rendered unusable, unreadable, or
indecipherable to unauthorized individuals through the use of a
technology or methodology specified by the Secretary.
Terms used but not defined in this Agreement shall have the same meaning as those
terms in the HIPAA regulations.
Article II. Obligations and Activities of Business Associate Regarding PHI.
Section 2.01 Business Associate agrees to not use or further disclose PHI other than
as permitted or required by this Agreement or as Required by Law.
Section 2.02 Business Associate agrees to use appropriate safeguards to prevent
use or disclosure of the PHI other than as provided for by this
Agreement.
Section 2.03 Business Associate agrees to ensure that any agents, including sub-
contractors (excluding entities that are merely conduits), to whom it
provides PHI agree to the same restrictions and conditions that apply
to Business Associate with respect to such information.
Section 2.04 Business Associate agrees to provide access, at the request of
Covered Entity, and in a reasonable time and manner designated by
Covered Entity, to PHI in a Designated Record Set that is not also in
Covered Entity's possession, to Covered Entity in order for Covered
Entity to meet the requirements under 45 C.F.R. § 164.524.
Section 2.05 Business Associate agrees to make any amendment to PHI in a
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Designated Record Set that the Covered Entity directs or agrees to
pursuant to 45 C.F.R. § 164.526 in a reasonable time and manner
designated by Covered Entity.
Section 2.06 Business Associate agrees to make internal practices books and
records relating to the use and disclosure of PHI available to the
Secretary, in a reasonable time and manner as designated by the
Covered Entity or Secretary, for purposes of the Secretary determining
Covered Entity's compliance with the Privacy Rule. Business Associate
shall immediately notify Covered Entity upon receipt or notice of any
request by the Secretary to conduct an investigation with respect to PHI
received from the Covered Entity.
Section 2.07 Business Associate agrees to document any disclosures of PHI that are
not excepted under 45 C.F.R. § 164.528(a)(1) as would be required for
Covered Entity to respond to a request by an Individual for an
accounting of disclosures of PHI in accordance with 45 C.F.R.
§ 164.528.
Section 2.08 Business Associate agrees to provide to Covered Entity or an
Individual, in a time and manner designated by Covered Entity,
information collected in accordance with paragraph (g) above, to permit
Covered Entity to respond to a request by an Individual for an
accounting of disclosures of PHI in accordance with 45 C.F.R.
§ 164.528.
Section 2.09 Business Associate agrees to use or disclose PHI pursuant to the
request of Covered Entity; provided, however, that Covered Entity shall
not request Business Associate to use or disclose PHI in any manner
that would not be permissible under the Privacy Rule if done by
Covered Entity.
Article III. Permitted Uses and Disclosures of PHI by Business Associate.
Section 3.01 Business Associate may use or disclose PHI to perform functions,
activities or services for, or on behalf of, Covered Entity provided that
such use or disclosure would not violate the Privacy Rule if done by
Covered Entity.
Section 3.02 Business Associate may use PHI for the proper management and
administration of Business Associate and to carry out the legal
responsibilities of Business Associate.
Section 3.03 Business Associate may disclose PHI for the proper management and
administration of Business Associate and to carry out the legal
responsibilities of Business Associate if:
(i) such disclosure is Required by Law, or
(ii) Business Associate obtains reasonable assurances from the person
to whom the information is disclosed that such information will remain
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confidential and used or further disclosed only as Required by Law or
for the purposes for which it was disclosed to the person, and the
person agrees to notify Business Associate of any instances of which it
is aware that the confidentiality of the information has been breached.
Section 3.04 Business Associate shall limit the PHI to the extent practicable, to the
limited data set or if needed by the Business Associate, to the minimum
necessary to accomplish the intended purpose of such use, disclosure
or request subject to exceptions set forth in the Privacy Rule.
Section 3.05 Business Associate may use PHI to provide Data Aggregation services
to Covered Entity as permitted by 42 C.F.R. § 164.504(e)(2)(i)(B).
Article IV. Obligations of Covered Entity Regarding PHI.
Section 4.01 Covered Entity shall provide Business Associate with the notice of
privacy practices that Covered Entity produces in accordance with 45
C.F.R. § 164.520, as well as any changes to such notice.
Section 4.02 Covered Entity shall provide Business Associate with any changes in,
or revocation of, authorization by an Individual to use or disclose PHI,
if such changes affect Business Associate's permitted or required uses
and disclosures.
Section 4.03 Covered Entity shall notify Business Associate of any restriction to the
use or disclosure of PHI that Covered Entity has agreed to in
accordance with 45 C.F.R. § 164.522, if such restrictions affect
Business Associate's permitted or required uses and disclosures.
Section 4.04 Covered Entity shall require all of its employees, agents and
representatives to be appropriately informed of its legal obligations
pursuant to this Agreement and the Privacy Rule and Security
Standards required by HIPAA and will reasonably cooperate with
Business Associate in the performance of the mutual obligations under
this Agreement.
Article V. Security of Protected Health Information.
Section 5.01 Business Associate has implemented policies and procedures to
ensure that its receipt, maintenance, or transmission of all protected
health information (“PHI”), either electronic or otherwise, on behalf of
Covered Entity complies with the applicable administrative, physical,
and technical safeguards required protecting the confidentiality,
availability and integrity of PHI as required by the HIPAA Privacy Rules
and Security Standards.
Section 5.02 Business Associate agrees that it will ensure that agents or
subcontractors agree to implement the applicable administrative,
physical, and technical safeguards required to protect the
confidentiality, availability and integrity of PHI as required by HIPAA
Privacy Rules and Security Standards.
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Section 5.03 Business Associate agrees to report to Covered Entity any Security
Incident (as defined 45 C.F.R. Part 164.304) of which it becomes
aware. Business Associate agrees to report the Security Incident to
the Covered Entity as soon as reasonably practicable, but not later than
10 business days from the date the Business Associate becomes
aware of the incident.
Section 5.04 Business Associate agrees to establish procedures to mitigate, to the
extent possible, any harmful effect that is known to Business Associate
of a use or disclosure of PHI by Business Associate in violation of this
Agreement.
Section 5.05 Business Associate agrees to immediately notify Covered Entity upon
discovery of any Breach of Unsecured Protected Health Information (as
defined in 45 C.F.R. §§ 164.402 and 164.410) and provide to Covered
Entity, to the extent available to Business Associate, all information
required to permit Covered Entity to comply with the requirements of 45
C.F.R. Part 164 Subpart D.
Section 5.06 Covered Entity agrees and understands that the Covered Entity is
independently responsible for the security of all PHI in its possession
(electronic or otherwise), including all PHI that it receives from outside
sources including the Business Associate.
Article VI. Term and Termination.
Section 6.01 Term. This Agreement shall be effective as of the Effective Date and
shall remain in effect until the Business Associate relationship with the
Covered Entity is terminated and all PHI is returned, destroyed or is
otherwise protected as set forth in Section 7(d).
Section 6.02 Termination for Cause by Covered Entity. Covered Entity may
terminate its contract(s) or business association with Business
Associate if Covered Entity determines that Business Associate has
violated a material term of the contract, to include this Agreement.
Section 6.03 Termination by Business Associate. This Agreement may be
terminated by Business Associate upon 30 days prior written notice to
Covered Entity in the event that Business Associate, acting in good
faith, believes that the requirements of any law, legislation, consent
decree, judicial action, governmental regulation or agency opinion,
enacted, issued, or otherwise effective after the date of this Agreement
and applicable to PHI or to this Agreement, cannot be met by Business
Associate in a commercially reasonable manner and without significant
additional expense.
Section 6.04 Effect of Termination. Upon termination of this Agreement for any
reason, at the request of Covered Entity, Business Associate shall
return or destroy all PHI received from Covered Entity, or created or
received by Business Associate on behalf of Covered Entity. Business
Associate shall not retain any copies of the PHI unless necessary for
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proper document retention/archival purposes only or if such PHI is
stored as a result of backup email systems that store emails for
emergency backup purposes. If the return or destruction of PHI is
infeasible, Business Associate 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 Business Associate maintains such PHI.
Article VII. Amendment.
The parties may agree to amend this Agreement from time to time in any other respect
that they deem appropriate. This Agreement shall not be amended except by written
instrument executed by the parties.
Article VIII. Severability.
The parties intend this Agreement to be enforced as written. However, (i) if any portion
or provision of this Agreement will to any extent be declared illegal or unenforceable
by a duly authorized court having jurisdiction, then the remainder of this Agreement,
or the application of such portion or provision in circumstances other than those as to
which it is so declared illegal or unenforceable, will not be affected thereby, and each
portion and provision of this Agreement will be valid and enforceable to the fullest
extent permitted by law; and (ii) if any provision, or part thereof, is held to be
unenforceable because of the duration of such provision, the Covered Entity and the
Business Associate agree that the court making such determination will have the
power to modify such provision, and such modified provision will then be enforceable
to the fullest extent permitted by law.
Article IX. Notices.
All notices, requests, consents and other communications hereunder will be in writing,
will be addressed to the receiving party's address set forth below or to such other
address as a party may designate by notice hereunder, and will be either (i) delivered
by hand, (ii) made facsimile transmission, (iii) sent by overnight courier, or (iv) sent by
registered mail or certified mail, return receipt requested, postage prepaid.
If to the Covered Entity:
City of Fort Collins
Attn: Bethany Mosbey
PO Box 580
Fort Collins, CO 80522
Copy:
City of Fort Collins
Attn: Purchasing Dept.
PO Box 580
Fort Collins, CO 80522
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If to the Business Associate:
NEWork Enterprises
Attn: Dona Leonard
4921 Saddlewood Circle
Johnstown, CO 80534
Article X. Regulatory References.
A reference in this Agreement to a section in the Privacy Rule means the referenced
section or its successor, and for which compliance is required.
Article XI. Headings and Captions.
The headings and captions of the various subdivisions of the Agreement are for
convenience of reference only and will in no way modify or affect the meaning or
construction of any of the terms or provisions hereof.
Article XII. Entire Agreement.
This Agreement sets forth the entire understanding of the parties with respect to the
subject matter set forth herein and supersedes all prior agreements, arrangements
and communications, whether oral or written, pertaining to the subject matter hereof.
Article XIII. Binding Effect.
The provisions of this Agreement shall be binding upon and shall inure to the benefit
of both Parties and their respective successors and assigns.
Article XIV.No Waiver of Rights, Powers and Remedies.
No failure or delay by a party hereto in exercising any right, power or remedy under
this Agreement, and no course of dealing between the parties hereto, will operate as
a waiver of any such right, power or remedy of the party. No single or partial exercise
of any right, power or remedy under this Agreement by a party hereto, nor any
abandonment or discontinuance of steps to enforce any such right, power or remedy,
will preclude such party from any other or further exercise thereof or the exercise of
any other right, power or remedy hereunder. The election of any remedy by a party
hereto will not constitute a waiver of the right of such party to pursue other available
remedies. No notice to or demand on a party not expressly required under this
Agreement will entitle the party receiving such notice or demand to any other or further
notice or demand in similar or other circumstances or constitute a waiver of the right
of the party giving such notice or demand to any other or further action in any
circumstances without such notice or demand. The terms and provisions of this
Agreement may be waived, or consent for the departure therefrom granted, only by
written document executed by the party entitled to the benefits of such terms or
provisions. No such waiver or consent will be deemed to be or will constitute a waiver
or consent with respect to any other terms or provisions of this Agreement, whether or
not similar. Each such waiver or consent will be effective only in the specific instance
and for the purpose for which it was given, and will not constitute a continuing waiver
or consent.
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Article XV. Governing Law.
This Agreement will be governed by and construed in accordance with the laws of
the State of Colorado.
Article XVI. Interpretation.
It is the Parties' intent to comply strictly with all applicable laws, including without
limitation, HIPAA, state statutes, or regulations (collectively, the "Regulatory Laws"),
in connection with this Agreement. In the event there shall be a change in the
Regulatory Laws, or in the reasoned interpretation of any of the Regulatory Laws or
the adoption of new federal or state legislation, any of which are reasonably likely to
materially and adversely affect the manner in which either Party may perform or be
compensated under this Agreement or which shall make this Agreement unlawful, the
Parties shall immediately enter into good faith negotiations regarding a new
arrangement or basis for compensation pursuant to this Agreement that complies with
the law, regulation or policy and that approximates as closely as possible the economic
position of the Parties prior to the change. In addition, the Parties hereto have
negotiated and prepared the terms of this Agreement in good faith with the intent that
each and every one or the terms, covenants and conditions herein be binding upon
and inure to the benefit of the respective Parties. To the extent this Agreement is in
violation of applicable law, then the Parties agree to negotiate in good faith to amend
this Agreement, to the extent possible consistent with its purposes, to conform to law.
IN WITNESS WHEREOF, the parties have executed this Business Associate Agreement as
of the Effective Date.
Business Associate:
Covered Entity:
AOTSHP, LCC DBA NEWO RK
ENTERPRISES
CITY OF FORT COLLINS
By:
By:
Printed: Printed:
Title: Title:
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Dona Leonard
Occupational Therapist / Owner Purchasing Director
Gerry Paul
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