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HomeMy WebLinkAboutTOYON ASSOCIATES, INC.INSURANCE ON FILE WORK MAY PROCEED A �, ANTIL INSURANCE EXPIRES N-2021-136 CLERK OF CO CIL OAT : CONSULTANT Services Agreement - Medi-Cal Appeals Services 6•.1=,�t�h��111 Ne I��SM11 This CONSULTANT Services Agreement for Medi-Cal Appeals Services ("this Agreement') is made as of this 10th day of May. 2021 by and between Toyon Associates, Inc., a California Corporation ("CONSULTANT") and the City of Santa Ana, a charter city and municipal corporation of the State of California ("CITY"). In consideration of the mutual promises herein contained and other good and valuable consideration, the adequacy and receipt of which is hereby acknowledged, the parties agree as follows: RECITALS A. The CITY desires to retain a consultant having special skill and knowledge in the field of professional services for the purpose of pursuing Medi-Cal cost report audit appeals. B. In undertaking the performance of this Agreement, CONSULTANT represents that it possesses the necessary knowledge, qualifications, skills and personnel to provide such services. CONSULTANT warrants that any services performed by CONSULTANT under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: CITY hereby retains CONSULTANT, and CONSULTANT hereby agrees to provide such services as are set forth hereinbelow, in accordance with the terms and conditions of this Agreement, and represents and warrants to CITY that CONSULTANT accepts such assignment to perform those services, subject to those terms and conditions. 1. SCOPE OF SERVICES a. CONSULTANT will provide CITY with Medi-Cal cost audit appeal services described in more detail in EXHIBIT A (SCOPE OF WORK). b. CONSULTANT shall furnish at its own expense all labor, materials, equipment and other items necessary to carry out the terms of this Agreement. Provided, however, that software use fee and expenses incurred in conjunction with this Agreement will be billed in addition to the professional fees. 2. COMPENSATION a. Upon execution of this Agreement, CITY will pay CONSULTANT as outlined below in EXHIBIT B (FEE SCHEDULE AND RATES), incorporated and included herein. CONSULTANT shall invoice CITY monthly for all charges for services (professional/ administrative fees, software use fees, travel & accommodation reimbursement, vehicle mileage, postage or express delivery service charges, and filings fee expenses) performed or incurred pursuant to this Agreement. Except however, that pursuant to a duly executed Change Order mutually agreed to by the parties in accordance with Section 3-22 of this Agreement, a different invoicing period may be specified for the particular services provided in accordance with the terms of such Change Order. b. Payment by CITY shall be made within forty-five (45) days following receipt of proper invoice evidencing work performed, subject to CITY accounting procedures and proof of insurance as set forth in section 3-9 (Insurance). Payment need not be made for work that fails to meet the standards of performance set forth in the Recitals, which may reasonably be expected by CITY. 2-1 Interest: CITY agrees to pay CONSULTANT interest at the rate of one percent (1 %) per month on any delinquent balance due. All balances shall be due and payable upon receipt of the billing or invoice statement. The balance due will be delinquent if not paid within forty-five (45) days of receipt of the billing statement. Statements shall be presumed to have been received five (5) days after they are mailed. 2-2 Maximum Contract Compensation: Maximum compensation payable to CONSULTANT for all services rendered by CONSULTANT to CITY, including all expenses incurred shall not exceed twenty-five thousand dollars and zero cents ($25,000) unless the parties pursuant to duly executed amendment to this Agreement shall agree to an increase in maximum contract compensation. 3. GENERAL PROVISIONS 3-1. Term of Agreement: This Agreement is effective as of the date and year first above written, and will terminate on June 30, 2023, or when the appeal is complete, whichever occurs first, if neither party has terminated this Agreement in accordance with section 3-2. 3-2. Termination: Either party shall have the right to terminate this Agreement in the event of a material breach by the other party. Any such termination may be made only by providing sixty (60) days written notice to the other party, specifically identifying the breach or breaches on which termination is based. Following receipt of such notice, the party in breach shall have thirty (30) days to cure such breach or breaches. In the event that such cure is not made, this Agreement shall terminate in accordance with the initial sixty (60) days' notice. Notwithstanding the foregoing, either party may terminate this Agreement at any time and for any reason by providing thirty -days (30) written notice to the other party; provided however, that if CONSULTANT has not breached this Agreement and has commenced services identified in EXHIBIT A prior to the date of termination, CONSULTANT shall be entitled to payment as described in EXHIBIT B; provided, however, that payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 3-3. Effect of Termination: Notwithstanding termination of this Agreement, CITY shall be obligated to pay CONSULTANT for services performed through the effective date of termination for which CONSULTANT has not been previously paid. 3-4. Independent Contractor: It is understood that CONSULTANT and its subcontractors, if any, in the performance of the work and services agreed to be performed, shall act as and be an independent contractor and shall not act as an agent or employee of the CITY. CITY understands that CONSULTANT may perform similar services for others during the term of this Agreement and agrees that CONSULTANT may represent other government sector clients as long as such representation does not constitute a conflict of interest related to CONSULTANT'S services pursuant to this Agreement. CONSULTANT shall obtain no rights to retirement benefits or other benefits which accrue to CITY'S employees, and CONSULTANT hereby expressly waives any claim it may have to any such rights. 3-5. Subcontractors: CONSULTANT shall have the right to hire subcontractors to provide the services described herein. CONSULTANT, in rendering performance under this Agreement shall be deemed an independent contractor and nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a partnership. CONSULTANT shall be solely responsible for and shall hold CITY harmless from any and all claims for any employee related fees and costs including without limitation employee insurance, employment taxes, workman's compensation, withholding taxes or income taxes. 3-6. Notice: Any notice required to be given under this Agreement shall be in writing and either served personally, sent prepaid first class mail, or by express mail courier (i.e. FedEx, UPS, etc.). Any such notice shall be addressed to the other party at the address set forth below. All notices, including notices of address changes, provided under this Agreement are deemed received on the third day after mailing if sent by regular mail, or the next day if sent overnight delivery. If to CITY: Clerk of Council City of Santa Ana 20 Civic Center Plaza (M-30) Santa Ana, CA 92702 With courtesy copy to: Executive Director, Finance and Management Services Agency City of Santa Ana 20 Civic Center Plaza (M-17) Santa Ana, CA 92702 Phone: (714) 647-6960 Facsimile: (714) 647-5414 If to CONSULTANT: Ronald G. Knapp Chief Operating Officer Toyon Associates, Inc. 1800 Sutter St., Ste. 600 Concord, CA 94520-2546 Phone: (925) 685-9312 Facsimile: (925) 687-9013 Representative or designees: CONSULTANT Primary Representative shall be: Management Contact Karen S. Kim Title: Vice President — Appeals Services Address: 1800 Sutter St.; Ste. 600, Concord, CA 94520-2546 Phone: (925) 685-9312 E-Mail: karen.kim(a)toyonassociates.com Representative or designees: City of Santa Ana's Primary Representative shall be: Willard V. Holt Title: Treasury and Customer Services Manager Address: 20 Civic Center Plaza, Room 1105, Santa Ana, CA 92701 Phone: (714) 647-5456 E-mail: wholt(g)santa-ana.org 3-7. Indemnification: Each parry shall indemnify and hold harmless the other party and its affiliated entities, against all liability or loss, and against all claims or actions based upon or arising out of (a) breach of any representation, warranty, or other obligation under this agreement, (b) infringement or violation of any patent, copyright, trade secret, trademark, or other third party intellectual property right, or (c) any personal injury (including death) or damage to property resulting from the indemnifying party's acts or omissions. 3-8. Limitation of Liability: Neither party will be liable to the other for indirect, consequential, special, incidental, exemplary or punitive damages, even if such damages were foreseeable; provided, however, that this exclusion will not apply to (i) any damages caused by a party's negligence or willful misconduct; (ii) indemnification obligations in this agreement (no matter how such damages might be characterized by a third party); (iii) tangible property damage or personal injury, or (iv) damages caused by a breach of any of the confidentiality obligations contained in the agreement or pursuant to any other confidentiality agreement executed between the parties relating to hospital or its affiliated entities' content which is a subject of this agreement, specifically including protected health information. No further limitations of liability shall apply. The remedies specified in this agreement are cumulative and in addition to any remedies available at law or in equity. 3-9. Insurance: Prior to undertaking performance of work under this Agreement, CONSULTANT shall maintain and shall require its Subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. CONSULTANT shall maintain commercial general liability insurance naming CITY, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of CONSULTANT's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $2,000,000 per occurrence, with $2,000,000 in the aggregate. Such insurance shall (a) name CITY, its officers, employees, agents, and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by CITY; and (c) contain standard separation of insureds provisions. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. Due to the nature of the services under this Agreement not contemplating use of owed autos, coverage for owned autos shall not be required. c. Worker's Compensation Insurance. In accordance with the provisions of Section 3700 of the Labor Code, CONSULTANT, if CONSULTANT has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, CONSULTANT agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. Errors and omissions insurance, with a combined single limit of not less than$1,000,000 per claim with $2,000,000 in the aggregate. The following requirements apply to the insurance to be provided by CONSULTANT pursuant to this section: CONSULTANT shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. ii. Certificates of insurance shall be furnished to the CITY upon execution of this Agreement and shall be approved by the CITY. iii. City of Santa Ana, its officers, employees, agents and representatives shall be Additional Insureds with respect to General Liability and Auto Liability Insurance is Primary and Non -Contributory. iv. Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to CITY of cancellation with ten (10) days prior notice for non- payment of premium in accordance with policy, provisions. V. CONSULTANT shall supply CITY with a fully executed additional insured endorsement prior to commencement of any work pursuant to this Agreement. vi. Certificates of insurance endorsements shall show CITY as a certificate holder as follows: City of Santa Ana Risk Management Division, 41h Floor 20 Civic Center Plaza Santa Ana, CA 92701 vii. Where the amounts or coverage provided by the certificates of insurance provides coverage greater than those listed by this Agreement, the amounts provided by the certificates of insurance shall be incorporated by reference into this Agreement. 3-10. Equal Opportunity to Draft: The parties have participated and had an equal opportunity to participate in the drafting of this Agreement. No ambiguity shall be construed against any party upon a claim that that party drafted the ambiguous language. 3-11. Assignment: This Agreement shall be binding upon and inure to the benefit of the parties, their successors, representatives and assigns. CONSULTANT shall not assign this Agreement, or delegate its duties or obligations under this Agreement, without the prior written consent of CITY, which consent shall not be unreasonably withheld, delayed or conditioned. Notwithstanding the foregoing, CONSULTANT may assign this Agreement, in whole or in part, without the consent of CITY to any corporation or entity into which or with which CONSULTANT has merged or consolidated; any parent, subsidiary, successor or affiliated corporation of CONSULTANT; or any corporation or entity which acquires all or substantially all of the assets of CONSULTANT. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their successors or assigns. 3-12. Ownership of Documents: Except for CONSULTANT'S preexisting proprietary information and processes, any and all documents, including draft documents where completed documents are unavailable, or materials prepared or caused to be prepared by CONSULTANT pursuant to this agreement shall be the property of the CITY at the moment of their completed preparation. 3-13. Intellectual Property Rights: The entire right, title and interest in and to CONSULTANT'S database and all copyrights, patents, trade secrets, trademarks, trade names, and all other intellectual property rights associated with any and all ideas, concepts, techniques, inventions, processes, or works of authorship including, but not limited to, all materials in written or other tangible form developed or created in the course of this Agreement (collectively, the "Work Product") shall vest exclusively in CONSULTANT or its subcontractors. The foregoing notwithstanding, in no event shall any CITY -owned data provided to CONSULTANT be deemed included within the Work Product. 3-14. Discrimination: CONSULTANT shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, gender identity, gender expression, gender, medical conditions, genetic information, or military and veteran status, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. CONSULTANT affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 3-15. Jurisdiction — Venue: This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 3-16. Professional Licenses: CONSULTANT shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the CITY of Santa Ana and all other governmental agencies. CONSULTANT shall notify the CITY immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 3-17. Public Release and Statements: Neither party or its representatives or agents shall disseminate any oral or written advertisement, endorsement or other marketing material relating to each other's activities under this Agreement without the prior written approval of the other party. CONSULTANT shall not make any public release or statement concerning the subject matter of this Agreement without the express written consent and approval of City . No party or its agent will use the name, mark or logo of the other party in any advertisement or printed solicitation without first having prior written approval of the other party. The parties shall take reasonable efforts to ensure that its subcontractors shall not disseminate any oral or written advertisement, endorsement or other marketing materials referencing or relating to the other party without that party's prior written approval. In addition, the parties agree that their contracts with all subcontractors will include appropriate provisions to ensure compliance with the restrictions of this Section. 3-18. Confidentiality: CITY agrees that it will not release to any third party, material that has been prepared by CONSULTANT, in connection with the work performed under this Agreement except as provided for in this Agreement or required by law. CONSULTANT agrees to maintain the confidentiality of CITY'S records and all information derived therefrom in accordance with all applicable state and federal laws and regulations pertaining to the use and disclosure of such documentation, and to use any and all information only to the extent necessary for CONSULTANT to perform its obligations under this Agreement. If CONSULTANT receives from CITY information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, CONSULTANT agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the CONSULTANT disclosed in a publicly available source; (c) is in rightful possession of the CONSULTANT without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the CONSULTANT without reference to information disclosed by CITY. 3-19. Force Maleure: CONSULTANT shall not be in default of its obligations hereunder to the extent that its performance is delayed or prevented by causes beyond its control, including but not limited to acts of God, government, weather, fire, power or telecommunications failures, inability to obtain supplies, breakdown of equipment or interruption in vendor services or communications. 3-20. Litigation Fees. If litigation arises out of this Agreement for the performance thereof, then the court shall award costs and expenses, including reasonable attorney's fees, to the prevailing party. In awarding attorney's fees, the court shall not be bound by any court fee schedule but shall award the full amount of costs, expenses and attorney's fees paid or incurred in good faith. 3-21. Entire Agreement: This Agreement constitutes the entire agreement between the parties hereto and supersedes any prior understandings or written or oral agreements between the parties respecting the subject matter contained herein. Said Agreement shall not be amended, altered, or changed, except by a written amendment signed by both parties unless a Change Order Contingency is mutually agreed to by the parties. 3-22. Change Order Contingency: From time -to -time, at CITY'S option, CITY may request optional services of CONSULTANT at mutually agreed upon scope and fees. 7 3-22.1 Change Order No extra work may be undertaken unless a written "Change Order" is first given by the Contract Officer or his/her designee, to CONSULTANT, incorporating therein any material change in the scope, fees and/or administration of this Agreement proposed by CITY. 3-22.2 Additional Work Or Services (a) Extra Work or Services CITY shall have the right at any time during the performance of the work or services set forth in this Agreement, without invalidating said Agreement or any amendments thereto, to elect to exercise any existing option specified in the Scope of Services for extra work or services or to order extra work or services pursuant to a duly executed Change Order or to thereby make changes by altering, adding to or deducting from said work or services. . (b) Maximum Contract Compensation Cap Net total compensation to CONSULTANT shall not, as the result of any Change Order, exceed the maximum contract compensation amount set forth under Section 2-2 of this Agreement, unless an increase in maximum contract compensation shall be agreed to by the parties pursuant to duly executed amendment of this Agreement in writing and signed by the parties. 3-22.3 Coordination of Work or Services (a) Representative of CONSULTANT The following officer of CONSULTANT is hereby designated as being the representative of CONSULTANT authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: Toyon Associates, Inc. Karen S. Kim Officer& Representative Vice President —Appeals Services It is expressly understood that the experience, knowledge, capability and reputation of the foregoing officer & representative is a substantial inducement for CITY to enter into this Agreement. Therefore, the foregoing officer & representative shall be responsible during the term of this Agreement for directing all activities of CONSULTANT and devoting sufficient time to personally supervise the services hereunder. For purposes of this Agreement, the foregoing officer & representative may not be replaced nor may their responsibilities be substantially reduced by CONSULTANT without the express written approval of CITY. 3-22.4 Contract Officer The Contract Officer shall be the person designated hereunder by CITY. It shall be CONSULTANT'S responsibility to assure that CITY'S Contract Officer is kept informed of the progress of the performance of the consulting services set forth in this Agreement and CONSULTANT shall refer any decisions that must be made by CITY to the Contract Officer. The Contract Officer shall have authority to enter into Change Orders with CONSULTANT pursuant to this Agreement. The Contract Officer shall have authority to sign all documents on behalf of CITY required hereunder to carry out the terms of this Agreement. Unless otherwise specified herein, any approval of CITY required hereunder shall mean the approval of the Contract Officer. City of Santa Ana Kristine Ridge, City Manager Contract Officer or designee 3-23. Invalidity: If any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision thereof, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. 3-24. Waiver: No waiver of breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement shall be effective unless it is in writing and signed by the party waiving the breach, failure, right or remedy. No waiver of any breach, failure or right, or remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. 3-26. Implementation: Implementation of services should begin as soon as possible from the "Effective Date" for the performance of services under the terms of this Agreement, which said "Effective Date" shall be the date and year first above written. 3-26. HIPAA Compliance: CITY acknowledges that this engagement may involve the review of individual patient information. For purposes of the federal HIPAA compliance regulations (45 C.F.R. Sections 160 and 164), CONSULTANT is acting as a Business Associate (BA). Under these regulations CITY, as Provider is a Covered Entity (CE). Individual patient information is considered protected health information (PHI) for HIPAA compliance purposes. As a BA, CONSULTANT agrees to the following obligations and activities: (a) CONSULTANT agrees to not use or disclose PHI other than as permitted or required by this Agreement or as required by law. (b) CONSULTANT agrees to use appropriate safeguards to prevent the use or disclosure of PHI other than provided by this Agreement, or as required bylaw. (c) CONSULTANT agrees to mitigate, to the extent practicable, any harmful effect of any use of disclosure that is known to us in violation to the terms of this Agreement. (d) CONSULTANT agrees to report to CE any use or disclosure of the PHI not provided for by this Agreement of which we become aware. (e) CONSULTANT agrees to ensure that any agent, including a subcontractor, to whom it provides PHI received from, or created or received by CONSULTANT on behalf of CE, agrees to the same restrictions and conditions that apply through this Agreement with respect to such information. (f) CONSULTANT agrees to provide access, at the request of CE, and in the time and manner Agreed upon, to PHI in a Designated Record Set, to CE or, as directed by CE, to an Individual in order to meet the requirements under 45 C.F.R. 164.524. (g) CONSULTANT agrees to make any amendment to PHI in a Designated Record Set that the CE directs or agrees to pursuant to 45 C.F.R. 164.526 at the request of CE or an Individual, and in the time and manner agreed to. (h) CONSULTANT agrees to make internal practices, books, and records, including policies and procedures and PHI, relating to the use and disclosure of PHI received from, or created or received by CONSULTANT on behalf of, CE available to the Secretary, in a time and manner agreed to or designated by the Secretary, for purposes of the Secretary determining CE's compliance with the Privacy Rule. (i) CONSULTANT agrees to document such disclosures of PHI and information related to such disclosures as would be required for CE to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 C.F.R. 164.528. Q) CONSULTANT agrees to provide CE or an Individual, in time and manner agreed to, information collected in accordance with Section (i) above of this Agreement, to permit CE to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 C.F.R. 164.528. (k) At termination of this Agreement, CONSULTANT agrees to return or destroy all PHI received from, or created or received by CONSULTANT on behalf of CE that the CONSULTANT still maintains in any form and retain no copies of such information. If such return or destruction is not feasible, CONSULTANT agrees to extend the protections of this Agreement to the information and limit further uses and disclosures to those purposes that make the return or destruction of the information infeasible. 3-27. Cooperation of City of Santa Ana: CITY shall cause its agents and employees to comply with all reasonable requests for information and documents from CONSULTATNT in connection with its pursuit of Medi-Cal cost report audit appeals. CITY agrees that its employees and any third party agents of the CITY will cooperate with and assist representatives of CONSULTANT in every reasonable way to enable CONSULTANT to secure all information and data required to perform the services herein provided for. CONSULTANT shall have no liability for defects in the services attributable to CONSULTANT'S reliance upon or use of data, design criteria, drawings, specifications, or other information furnished by CITY or third parties retained by CITY. 3-28. Disclosure: Neither CONSULTANT nor any agent or employee of CONSULTANT that will be providing services under this Agreement has been excluded, debarred or otherwise sanctioned from participation in any federal or state healthcare program, including the Medicare, Medicaid or Champus programs or has been convicted or found to have violated any federal or state fraud and abuse laws or illegal remuneration law. 3-29. Access to Books and Records: Until the expiration of four years after furnishing the services provided under this contract, CONSULTANT will make available to the Secretary, U.S. Department of Health and Human Services, and the U.S. Comptroller General, and their representatives, this contract and all books, documents, and records necessary to certify the nature and extent of the costs of those services. 3-30. Arbitration: Any controversy or claim arising out of or relating to this Agreement, or any breach thereof, shall be settled and resolved by binding arbitration in accordance with this provision, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Any one party to this Agreement may initiate arbitration by delivering written notice thereof to the other party. Such written notice shall state the intent of the party to have a controversy resolved by arbitration shall specify the controversy and matters to be resolved and shall designate an arbitrator who shall not have an economic, social or other relationship to the party requesting arbitration ("independent" arbitrator). Delivery may be affected by depositing a notice of such intention addressed to each party, sent by registered mail, return receipt requested, sealed and postage prepaid in the United States Mail, by facsimile transmission, or by personal delivery. Arbitration shall be by the arbitrator so designated unless the other party to whom 10 notice has been delivered requests arbitration by three independent arbitrators within ten (10) days after receipt of the Notice of Intention to Arbitrate. If such a request is made, the party making it shall designate a second independent arbitrator and the two arbitrators so designated shall select a third independent arbitrator. The arbitration shall be conducted by the arbitrator(s) pursuant to the provisions of the California Code of Civil Procedure relating to civil arbitrations and the Rules of Court for the California Superior Court, as may be amended and existing from time to time. A decision of any two arbitrators shall be sufficient to constitute an enforceable award under the provisions of this section. The costs incurred in the arbitration, including the fees paid to the arbitrator(s) shall be shared equally by the parties. The arbitrator(s) shall be entitled to retain legal counsel in connection with the arbitration of the dispute submitted to arbitration of the joint expense of the parties during the arbitration proceedings. If any party to this Agreement refuses to cooperate voluntarily and without court order in the arbitration process described herein, then, provided that notice of the time and place of the arbitration hearing is given to such party, the arbitration shall proceed in the absence of such party. Any award made by arbitration shall be final and binding on each party to this Agreement, and at the election of any party to the arbitration, a judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator(s) shall be empowered to award costs and reasonable attorney's fees in connection with any matter submitted to the arbitrator(s) for determination. 3-31. Miscellaneous Provisions: a. CONSULTANT shall perform all services with the necessary knowledge and skills required to perform the tasks. CONSULTANT or personnel of CONSULTANT engaged in the performance of such services shall not represent themselves to be, nor shall they be deemed to be, employees of CITY for any purpose whatsoever. b. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify CITY fully, including reasonable costs and attorney's fees, for any injuries or damages to CITY in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. c. CONSULTANT agrees any alterations, variations, modifications, or waivers of the provisions of this Agreement, shall be valid only when reduced to writing, executed and attached to the original agreement and approved by the required signatories pursuant to the provisions set out in this Agreement for Change Orders. d. All exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. e. In the event of any conflict between the terms of this Agreement and those set forth in any Exhibit referenced and incorporated herein, the terms of this Agreement shall prevail. Counterpart Signature and Delivery: This Agreement must be signed below and may be signed in separate counterparts including facsimile copies and delivered by fax, email as a PDF (Portable Document Format) file attachment, or by other means that displays the original or a copy of the signatures. Each counterpart (including facsimile copies) is deemed an original and all counterparts are deemed on and the same instrument and legally binding on the parties. Any subsequent amendments to this Agreement may be signed and delivered in the same manner. {Signatures on following page} 12 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: vaiay vUJI=4 Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO CITY Attorney ey: d.a. A. R� Laura A. Rossini, Chief Assistant City Attorney RECOMMENDED FOR APPROVAL: CITY OF SANTA ANA ®l �j Kristine Ridge \ City Manager CONSULTANT Kat ryn Do ns, Executive Director Finance & Management Services Agency City of Santa Ana Ronald G. Knapp Chief Operating Officer Toyon Associates, Inc. 13 EXHIBIT "A" F'idi77�61ZT[ . 1. Background California Welfare & Institutions Code §14105.94 establishes the Ground Emergency Medical Transportation ("GEMT") Services supplemental reimbursement program. The GEMT program permits qualified Providers such as the City of Santa Ana ("CITY") to complete cost reports annually and receive supplemental reimbursement payments after undergoing a Department of Health Care Services audit. Providers can appeal audit adjustments applied to their filed Medi- Cal cost reports pursuant to an administrative appeals process established by the State of California, the rules for which are set forth in Title 22 of the California Code of Regulations, Section 51022 et a/. There is a first level (informal) appeals process handled by a hearing auditor assigned by the State and a second level (formal) appeals process handled by an administrative law judge assigned by the State. Should a satisfactory result not be obtained at either the informal or formal levels of appeal, a Provider has the right to take the matter to State court. 2. Scope of Work Toyon Associates, Inc., ("CONSULTANT") will pursue Medi-Cal cost report appeals and/or re - openings on behalf of CITY. CONSULTANT'S services (which exclude direct litigation services) may include, but are not limited to, the following: 1) Review the audited cost reports and audit work papers to determine the issues to be appealed and/or reopened. 2) Prepare and file appeal letters to the State. 3) Develop appeal strategy, perform research, and obtain documentation needed to pursue disputed issues. 4) Prepare and file amended cost reports if appropriate. 5) Prepare and file position statements and exhibits supporting CITY'S position. 6) Review the State's position statement. 7) Attend settlement conferences and represent the CITY at appeal hearings. 8) Recommend a third -party qualified law firm to assist with the appeal on an as -needed basis, subject to an independent contract between the CITY and recommended law firm (third - party legal fees to be the responsibility of CITY). 9) Perform all follow up needed with the Medi-Cal Program with respect to appeals and reopening requests. 10) Review any revised settlements resulting from appeals or re -openings and any hearing decisions and provide recommendations to CITY. 3. Cost Reporting Periods Covered The cost reporting period covered shall be Medi-Cal Ground Emergency Medical Transportation Supplemental Reimbursement Program cost reporting period FY 2016-2017. 14 *:/:11-3ba___ i FEE SCHEDULE AND RATES 1. Background Toyon Associates, Inc.'s ("CONSULTANT'S") professional / administrative services fees are determined by the number of hours spent on a specific contracted appeal project times the hourly rates in effect for the staff members assigned to work on the project. Hourly rates in effective beginning July 1, 2020 range from $115 to $500 depending on the degree of difficulty presented by a specific appeal project and the requisite experience and skill level required of assigned staff. Attached hereto is the table of Hourly Fee Rates by Position currently in effect - by fiscal year - for FY 2020-21, FY 2021-22, and FY 2022-23. These rates become effective on July 1 of each succeeding year. 2. Applicable Professional Fees The current hourly rates of the professional CONSULTANT staff initially assigned to your appeal are as follows: (1) Karen S. Kim, Vice President, Appeals Services - $400 per hour; and (2) Mike Smith, Vice President, Appeals Services - $400 per hour. CONSULTANT will make every effort to be cost-effective in its use of professional CONSULTANT time and expense. As applicable, additional administrative CONSULTANT fees will be billed in addition to the applicable professional CONSULTANT fees. 3. Software Use Fees and Expenses As applicable, software use fees, travel & accommodation reimbursement, vehicle mileage (submitted pursuant to IRS reimbursement rate), postage or express delivery charges, and filings fee expenses incurred in conjunction with the specific contracted project will be billed in addition to the applicable professional fees. 4. Invoicing Billing statements for all services rendered and applicable expenses incurred by CONSULTANT will be invoiced monthly and are due and payable upon receipt and shall become past due after 45 days, and shall thereafter be subject to interest at the rate of 1% per month until paid. Statements shall be presumed to have been received five (5) days after they are mailed. 5. Consideration Cap CONSULTANT agrees to "cap" its total fees and expenses (the maximum amount Toyon Associates, Inc. will charge CITY) at the amount of $25,000 for this Agreement. 15 EXHIBIT "B" FEE SCHEDULE AND RATES (ATTACHMENT) HOURLY RATES BY POSITION Professional / Administrative Services Staff Effective 71112020 Effective 711/2021 Effective 71112022 Title Hourly Rate Hourly Rate Hourly Rate President $ 500 $ 515 $ 530 Executive V.P. $ 475 $ 490 $ 505 Vice President $ 400 $ 410 $ 420 Senior Director $ 340 $ 350 $ 360 Senior Manager $ 315 $ 325 $ 335 Director $ 275 $ 285 $ 295 Asst. Director $ 275 $ 285 $ 295 Manager $ 260 $ 270 $ 280 Senior Consultant $ 250 $ 260 $ 270 Consultant $ 225 $ 230 $ 235 Senior Analyst $ 200 $ 205 $ 210 Analyst $ 150 $ 155 $ 160 Appeals Coordinator $ 175 $ 180 $ 185 Administrative $ 115 $ 120 $ 125 a cY+l4"i ,Y.Xei,e' `da, irY4Yr sT s ..^'t£Src �L jx SQ Na'>��7e'Fv N� •Ygy,. Programming Staff Effective 711/2020 Effective 71112021 Effective 71112022 Title Hourly Rate Hourly Rate Hourly Rate Manager Systems Development $ 300 $ 310 $ 320 Director of Information Technology $ 275 $ 285 $ 295 Systems Programmer $ 225 $ 230 $ 235 Systems Administrator $ 200 $ 205 $ 210 Web Applications Developer $ 175 $ 180 $ 185 Programmer Analyst $ 175 1 $ 180 $ 185 16 """'ally aged by France P. Francine R. Villareal Wheal Date: 2021.M,21 I&s3:Me (Xr TOYOASS-01 GHODGES '4� CERTIFICATE OF LIABILITY INSURANCE OAT111/2DIYYYY) 5/11/2021 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER License#OK07568 Cumbre Insurance Services, LLC 3110 E. Guasti Road Suite 500 C MEACT Gail Hodges PHONE FAX (ac, No, Eat: (707) 992-3743 uc, No):(909) 484-2491 noo&e$S: hodgesg@cumbreins.com Ontario, CA 91761 INSURE S AFFORDING COVERAGE NAIC a INSURER A: Citizens Insurance Company of America 31534 INSURED INSURER B: Hanover American Insurance 36064 INSURER C: Capitol Secial Insurance Corporation 10328 Toyon Associates, Inc. INSURER D : 1800 Sutter St. 6th Floor Concord, CA 94520 INSURER E INSURER F : COVERAGES CERTIFICATE NUMBER: REVISION NIIMRFR- THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACTOROTHER DOCUMENTWITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE ADDLSUBR POLICY NUMBER POLICY EFF POLICY EXPJJ1L LIMITS A X COMMERCIAL GENERAL LIABILITY CLAIMS -MADE N OCCUR x OB31­1114834 1/112021 11112022 EACH OCCURRENCE $ 2,000,000 DAANIAGETORENTED PREMISS (Ea occwenc,lMEDEXP $ 300,000 An ane erson $ 5,000 PERSONAL&ADV INJURY $ 2,000,000 AGGREGATE LIMIT APPLIES PER: POLICY LOC GENERAL AGGREGATE $ 4,000,000 GENL X PRODUCTS-COMPIOPAGG $ 4,000.000 OTHER: A AUTOMOBILE LIABILITY Eeaal. EDideISINGLE LIMIT $ 2,000,000 BODILY INJURY Perperson) IxANYAUTO OWNED SCHEDULED AUTOS ONLY AU�r�OpSWN X OB3H114834 1/1/2021 11112022 BODILY INJURY (Per accident $ ALTOS ONLY X AUTOS ONLY PPeOPER nt FMAGE AUMBRELLA LIAR X OCCUR EACH OCCURRENCE $ 5,000,000 AGGREGATE $ 5,000,000 dX EXCESS LIAB CLAIMS -MADE X OB31­1114834 1/112021 1N/2022 DED I I RETENTION$ B WORKERS COMPENSATION AND EMPLOYERS' LIABILITY YIN ANY PROPRIETORIPARTNEMEXECUTIVE OFFICabryEn NH) EXCLUDED? Use. describe under DESCRIPTION OF OPERATIONS belo v NIA Z3H133875 1/112021 111l2022 X PER OTH- ER E.L. EACH ACCIDENT $ 1,000,000 E.L. DISEASE - EA EMPLOYE 1,000,000 $ E.L DISEASE -POLICY LIMIT 1,000,000 C ERRORS & OMISSIONS SGC0003979-08 1/112021 1/1/2022 EA. ERRONEOUS ACT 5,000,000 C CLAIMS MADE SGC0003979-08 11112021 111/2022 AGGREGATE 5,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES ACORD 101, Addlllonal Remarks Schedule, me be attached if more s ace is required) CITY OF SANTA ANA, ITS OFFICERS, EMPLOY ES AGENTS AND REPRESENTATIVES ARE HEREBY NAMED AS ADDITIONAL INSURED'S AS RESPECTS TO LIABILITY ARISING OUT OF THE NAMED INSUREDS OPERATIONS, COVERAGE IS PRIMARY AND NON CONTRIBUTORY PER 391-1331 06 09. ADDITIONAL INSURED IS GRANTED A 30 DAY NOTICE OF CANCELLATION WITH THE EXCEPTION OF A 10 DAY NOTICE FOR NON-PAYMENT OF PREMIUM UNDERWRITERS AT LLOYDS CYBER LIABILITY POLICY #ESJ0325280680 SEE ATTACHED ACORD 101 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE CityOf Santa Ana THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Risk Management Division - 4th Floor ACCORDANCE WITH THE POLICY PROVISIONS. 20 Civic Center Plan Santa Ana, CA 92701 AUTHORIZED REPRESENTATIVE ItLkMwgmlod Dhsim REVIEWED&APPROJ®BY: ACORD 25 (2016/03) V © 1988.2015 ACORD Cl1' f'k"M z Vx""'Al The ACORD name and logo are registered marks of ACORD I Risk Nl,n,gemem Analy't AGENCY CUSTOMER ID: TOYOASS-01 LOC #: 1 A`CORO ADDITIONAL REMARKS SCHEDULE GHODGES Page 1 of 1 AGENCY umbre Insurance Services, LLC License#OK07568 NAMED INSURED Toon Associates, Inc. yy 1800 Sutter St, 6th Floor Concord, CA 94520 POLICY NUMBER EE PAGE 1 CARRIER EE PAGE 1 NAIO CODE SEE P 1 EFFECTIVE DATE: SEEPAGE 1 THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: ACORD 25 FORM TITLE: Certificate of Liability Insurance Description of Operations/Locations/Vehicles: TERM: 1/1/2021 TO 1/1/2022 LIMITS: $ 5,000,000 INCIDENT RESPONSE COSTS $ 5,000,000 LEGAL AND REGULATORY COSTS $ 5,000,000 CRISIS COMMUNICATION COSTS $ 5,000,000 PRIVACY BREACH MANAGEMENT COSTS $ 5,000,000 THIRD PARTY PRIVACY BREACH MANAGEMENT COSTS $ 5,000,000 NETWORK SECURITY & PROVACY LIABILITY $ 5,000,000 PRIVACY LIABILITY $ 5,000,000 MANAGEMENT LIABILITY $ 5,000,000 REGULATORY FINES $ 5,000,000 MEDIA LIABILITY DEFAMATION $ 5,000,000 INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT $ 5,000,000 AGGREGATE LIMIT ACORD 101 (2008/01) © 2008 ACORD COI The ACORD name and logo are registered marks of ACORD Rink Management Division REVIEWED & APPRw® BY: Fnvc.w�.ss �. �:llcnuce ® Risk Management Analyst OTHER INSURANCE — PRIMARY AND NON-CONTRIBUTORY (ADDITIONAL INSURED) ENDORSEMENT THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. This endorsement modifies insurance provided under the following: BUSINESSOWNERS COVERAGE FORM The following is added to SECTION III — COMMON POLICY CONDITIONS: M. Other Insurance 1. Additional Insureds If you agree in a written contract, written agreement or permit that the insurance provided to any person or organization included as an Additional Insured under SECTION II - LIABILITY, Part C — Who is An Insured, is primary and non-contributory, the following applies: If other valid and collectible insurance is available to the Additional Insured for a loss we cover under SECTION II — LIABILITY, Part A. Coverages, Paragraph 1., Business Liability our obligations are limited as follows: a. Primary Insurance This insurance is primary to other insurance that is available to the Additional Insured which covers the Additional Insured as a Named Insured. We will not seek contribution from any other insurance available to the Additional Insured except: (1) For the sole negligence of the Additional Insured; (2) When the Additional Insured is an Additional Insured under another primary liability policy; or (3) When b.(2) below applies. If this insurance is primary, our obligations are not affected unless any of the other insurance is also primary. Then, we will share with all that other insurance by the method described in b.(3) below. b. Excess Insurance This insurance is excess over: (1) Any of the other insurance, whether primary, excess, contingent or on any other basis: (a) That is Fire, Extended Coverage, Builder's Risk, Installation Risk or similar coverage for "your work"; 391-1331 06 09 Includes copyrighted material of Insurance Services Offices, Inc., with its permissio (b) That is Fire insurance for premises rented to the Additional Insured or temporarily occupied by the Additional Insured with permission of the owner; (c) That is insurance purchased by the Additional Insured to cover the Additional Insured's liability as a tenant for "property damage" to premises rented to the Additional Insured or temporarily occupied by the Additional Insured with permission of the owner; or (d) If the loss arises out of the maintenance or use of aircraft, "autos" or watercraft to the extent not subject to Exclusion g. of SECTION II — LIABILITY, Part A. Coverages, 1. Business Liability. When this insurance is excess, we will have no duty under SECTION II — LIABILITY, Part A. Coverages, 1. Business Liability to defend the insured against any "suit" if any other insurer has a duty to defend the insured against that "suit". If no other insurer defends, we will undertake to do so, but we will be entitled to the insured's rights against all those other insurers. When this insurance is excess over other insurance, we will pay only our share of the amount of the loss, if any, that exceeds the sum of: (2) The total amount that all such other insurance would pay for the loss in the absence of this insurance; and (3) The total of all deductible and self - insured amounts under all that other insurance. We will share the remaining loss, if any, with any other insurance that is not described in this Excess Insurance provision and was to apply in excess Rbkntwrb 9' REweum & Apmmrm By. facr. zw R. V:A6vaa1 ® Ruk Management Melysr Insurance shown in the Declarations of this Coverage Part. c. Method Of Sharing If all of the other insurance permits contribution by equal shares, we will follow this method also. Under this approach each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the loss remains, whichever comes first. If any of the other insurance does not permit contribution by equal shares, we will contribute by limits. Under this method, each insurer's share is based on the ratio of its applicable limit of insurance to the total applicable limits of insurance of all insurers. 391-1331 06 09 Includes copyrighted material of Insurance services Offices, Inc., with its permissiol _ RIA Mompn dofwsion CREo waa &ryAPPRo}vgm By. el vuwo NL' +�� 1 �bmGaf.[ h. V�4tl+�if/.0 ® Rlsk Management Analyst