RFP 26-002 Sample Contract.doc

CONTRACT NO. «Contract Number» (“Contract”) This Contract is made and entered into as of [insert date] (“Effective Date”), by and between the Orange County Health Authority, a public agency dba CalOptima Health (“CalOptima”) and «Company Name», a «Business Entity», hereinafter referred to as “Contractor.” CalOptima and Contractor may be referred to collectively as the “Parties” or each individually as a “Party.”

RECITALS

A. CalOptima desires to retain a contractor to provide «Description», as described in the Scope of Work in Exhibit A;

B. Contractor provides such services;

C. Contractor desires to perform these services for CalOptima; and

D. CalOptima and Contractor desire to enter into this Contract on the terms and conditions set forth below.

NOW, THEREFORE, in consideration of their mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the Parties agree as follows:

1. Documents Constituting Contract.

“Contract Documents” include the following documents in the order of descending precedence: (i) this Contract, inclusive of all its exhibits and addenda; (ii) CalOptima’s Request for Proposals «Current RFP Number» (“RFP”), if applicable, inclusive of any CalOptima revisions and addenda prior to the Effective Date; (iii) Contractor’s best and final offer dated [Insert Date of Best and Final Offer], if applicable, and; (iv) Contractor’s proposal dated [Insert Date Contractor’s Response to RFP] (“Proposal”). Any new terms and conditions attached to Contractor’s best and final offer, Proposal, invoices, or request for payment shall not be incorporated into the Contract Documents or be binding upon CalOptima unless expressly accepted by CalOptima in writing. All Contract Documents are incorporated into this Contract by this reference. Any changes to the Contract or the Contract Documents shall not be binding upon CalOptima except when specifically confirmed in writing by an authorized representative of CalOptima in accordance with Section 10, of this Contract. In the event of any conflict of provisions among the Contract and/or Contract Documents, the provisions shall prevail in the above-referenced descending order of precedence.

2. Scope of Work.

2.1 Contractor shall perform the work in accordance with (i) this Contract, including the Scope of Work in Exhibit A, (ii) the Contract Documents, (iii) the applicable standards and requirements of the Centers for Medicare and Medicaid Services (“CMS”), the California Department of Health Care Services (“DHCS”), and the California Department of Managed Health Care (“DMHC”), and (iv) all applicable laws.

3. Insurance.

3.1 At Contractor’s sole expense and prior to undertaking performance of services under this Contract and at all times during performance hereunder, Contractor shall maintain insurance policies and amounts set forth in Exhibit A, which shall be full-coverage insurance not subject to self-insurance provisions, in accordance with applicable laws and industry standards. Contractor shall not of its own initiative cause such insurance to be canceled or materially changed during the Term.

3.2 Within five days of the Effective Date and prior to commencing performance of any services or its receipt of any compensation under the Contract, Contractor shall furnish to CalOptima with additional insured endorsements broker-issued Certificates of Insurance showing the required insurance coverages for Contractor. Contractor’s Certificates of Insurance shall additionally comply with the following:

3.2.1 CalOptima’s officers, officials, directors, employees, agents, and volunteers are to be covered as additional insureds with respect to liability arising out of work or operations performed by or on behalf of Contractor, including materials, parts, or equipment furnished in connection with such work or operations. This provision applies to Contractor’s General Liability and Auto Liability policies, as applicable, and must be on ISO form CG 20 10 or equivalent.

3.2.2 For any claims related to this Contract, the Contractor’s insurance coverage shall be primary insurance with respect to CalOptima, its officers, officials, directors, employees, agents, and volunteers. This provision applies to the Contractor’s General Liability, Auto Liability and Workers’ Compensation and Employers’ Liability policies, as applicable.

3.2.3 Contractor’s insurance carrier agrees to waive all rights of subrogation against CalOptima and its elected or appointed officers, officials, directors, agents, and employees for losses paid under the terms of any policy which arise from work performed by the Contractor for CalOptima. This provision applies to the Contractor’s General Liability, Auto Liability and Workers’ Compensation and Employers Liability policies.

3.2.4 Insurance is to be placed with insurers with a current A.M. Best rating of no less than A- VII, unless otherwise acceptable to CalOptima.

3.2.5 Contractor shall furnish CalOptima with original certificates and amendatory endorsements affecting coverage required by this Section 3.2 and Exhibit A. CalOptima reserves the right to require complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications, at any time.

3.2.6 Any deductibles or self-insured retentions must be declared to and approved by CalOptima. CalOptima may require the Contractor to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention or deductible.

3.2.7 All deductibles and retentions that the aforementioned policies contain are the responsibility of the Contractor and in no way shall CalOptima be responsible for payment of the deductibles/retentions.

3.2.8 If Contractor maintains higher limits than the minimums required in this Contract, CalOptima requires and shall be entitled to coverage for the higher limits maintained by Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to CalOptima.

3.2.9 Require the insurance carrier to provide thirty days’ prior written notice of cancellation to CalOptima.

3.3 If Contractor fails or refuses to maintain or produce proof of the insurance required by this Section 3 and Exhibit A, CalOptima may terminate this Contract upon written notice to Contractor. Such termination shall not affect Contractor’s right to be paid for its time and materials expended prior to notification of termination. Contractor waives the right to receive compensation and agrees to indemnify CalOptima for any work performed prior to approval of insurance by CalOptima

3.4 The requirement for carrying the required insurance shall not derogate from the provisions for indemnification of CalOptima.

3.5 Contractor shall require each of its subcontractors who perform services related to this Contract, if any, to maintain insurance coverage that meets all of the requirements set forth in this Contract.

3.6 “Occurrence” means any event or related exposure to conditions that result in bodily injury or property damage.

4. Indemnification.

4.1 To the fullest extent permitted by law, Contractor shall defend, indemnify, and hold harmless CalOptima and its respective officers, directors, agents, volunteers, consultants and employees (individually and collectively referred to as “Indemnified Parties”) against any and all claims, losses, demands, damages, costs, expenses, or liability arising out Contractor’s, or its officers, employees, subcontractors, agents, or representatives’, breach of this Contract, negligence, recklessness, or intentional conduct, except to the extent any such loss was caused by the gross negligence, recklessness, or intentional misconduct of CalOptima. Contractor shall defend the Indemnified Parties in any claim or action based upon any such alleged acts or omissions at its sole expense, which shall include all costs and fees, including attorneys’ fees, cost of investigation, defense, and settlement or awards. CalOptima may make all reasonable decisions with respect to its representation in any legal proceeding. Contractor’s duty to defend herein is wholly independent of and separate from the duty to indemnify and such duty to defend shall exist regardless of any ultimate liability of Contractor, save and except claims arising through the sole negligence or sole willful misconduct of CalOptima.

4.2 Contractor’s obligation to indemnify hereunder is in addition to any liability Contractor may have to CalOptima for a breach by Contractor of any of the provisions of this Contract. Under no circumstances shall the insurance requirements and limits set forth in this Contract be construed to limit Contractor’s indemnification and duty to defend obligation or other liability hereunder

4.3 Contractor’s indemnification and duty to defend obligations shall survive the expiration or earlier termination of this Contract until such time as any action against the Indemnified Parties for such a matter indemnified hereunder is fully and finally barred by the applicable statute of limitations, including those set forth under the California Government Claims Act (Cal. Gov. Code §900 et seq.).

4.4 In the event of any conflict between this Section 4 and the indemnification provisions set forth elsewhere in the Contract, including any business associate agreement (“BAA”) between the Parties, the indemnification provisions in the BAA or elsewhere in the Contract shall be interpreted to relate only to matters within the scope of the BAA or those other Contract provisions.

4.5 The terms of this Section 4 shall survive the termination of this Contract.

5. Independent Contractor. CalOptima and Contractor agree that Contractor, which shall include for purposes of this Section 5 all subcontractors, agents, and employees of the Contractor, in performance of this Contract, shall act in an independent capacity, and not as officers or employees of CalOptima. Contractor’s relationship with CalOptima in the performance of this Contract is that of an independent contractor and nothing in this Contract shall be construed as creating a partnership, joint venture, or agency. Contractor’s personnel performing services under this Contract shall be at all times under Contractor’s exclusive direction and control and shall be employees of Contractor and not employees of CalOptima. Contractor shall pay all wages, salaries and other amounts due its employees, agents, and/or subcontractors in connection with this Contract and shall be responsible for all reports and obligations respecting them, such as social security, state and federal income tax withholding, other payroll taxes, unemployment compensation, workers’ compensation, and similar matters. Contractor shall file all required returns related to such taxes, contributions, and payroll deductions.

6. Personnel.

6.1 Contractor Staffing. Contractor shall ensure that only fully qualified Contractor personnel are assigned to perform the services under the Contract, and such Contractor personnel shall perform services diligently and in a timely manner, according to the applicable professional and technical standards.

6.2 Contractor Personnel Restrictions. When on CalOptima’s premises, Contractor personnel shall comply with CalOptima policies and procedures, including CalOptima’s identification requirements (e.g., name badges).

6.3 Any CalOptima property damaged by Contractor, its subcontractors, or by the personnel of either, will be subject to repair or replacement by Contractor at no cost to CalOptima.

7. Compensation.

7.1 CalOptima agrees to pay, and Contractor agrees to accept as full compensation for the faithful performance of this Contract, the rates, charges, and other payment terms identified in Exhibit B.

7.2 CalOptima will not reimburse Contractor any expenses incurred in connection with its performance of the services, unless such reimbursement is specifically authorized in Exhibit B. Each expense reimbursement request, when authorized in Exhibit B must include receipts or other suitable documentation.

7.3 Contractor’s requests for payments and reimbursements must comply with the requirements set forth in Exhibit B. CalOptima will not make payment for work that fails to meet the standards of performance set forth in the Contract, including in Exhibit A. CalOptima shall not pay any fees, expenses, or costs whatsoever incurred by contractor in rendering additional services not authorized in writing by CalOptima under this contract.

7.4 In no event shall the total compensation payable to Contractor for the services performed under this Contract exceed the maximum cumulative payment obligation, as set forth in Exhibit B, without the express prior written authorization of CalOptima. Contractor acknowledges and agrees that CalOptima shall not be liable for any fees, expenses or compensation in excess of the maximum cumulative payment obligation.

7.5 The maximum cumulative payment obligation includes all applicable federal, state, and local taxes and duties, except sales tax, which is shown separately, if applicable. Contractor is responsible for submitting any withholding exemption forms (e.g., W-9) to CalOptima. Such forms and information should be furnished to CalOptima before payment is made. If taxes are required to be withheld on any amounts otherwise to be paid by CalOptima to Contractor due to Contractor’s failure to timely submit such forms, CalOptima will deduct such taxes from the amount otherwise owed and pay them to the appropriate taxing authority and shall have no liability for or any obligation to refund any payments withheld.

8. Confidential Material.

8.1 During the Term, either Party may have access to confidential material or information (“Confidential Information”) belonging to the other Party or the other Party’s customers, vendors, or partners. Confidential Information includes the disclosing Party’s computer programs and codes, business plans, customer/member lists and information, financial records, partnership arrangements, projections, methodologies, data, reports, agreements, intellectual property, trade secrets, licensing plans, and other proprietary information, or other information, materials, records, writings or data that is marked confidential or that due to its character and nature, a reasonable person under like circumstances would treat as confidential. CalOptima’s Confidential Information also includes all user information, patient information, and clinical data that comes into CalOptima’s possession, custody or control. Confidential Information will be used only for the purposes of this Contract and related internal administrative purposes. Each Party agrees to protect the other’s Confidential Information at all times and in the same manner as each protects the confidentiality of its own confidential materials, but in no event with less than a reasonable standard of care.

8.2 Confidential Information does not include information which: (i) is already known to the other Party at the time of disclosure; (ii) is or becomes publicly known through no wrongful act or failure of the receiving Party; (iii) is independently developed without use or benefit of the other Party’s Confidential Information or proprietary information; (iv) is lawfully received from a third party that is not under and does not thereby breach an obligation of confidentiality; or (v) is a public record, not exempt from disclosure, pursuant to California Public Records Act, Government Code Section 6250 et seq., applicable provisions of California Welfare and Institutions Code, or other state or federal laws, regardless of whether such information is marked as confidential or proprietary.

8.3 Disclosure of Confidential Information will be restricted to the receiving Party’s employees, consultants, suppliers, or agents, who are bound by confidentiality obligations no less stringent than those in this Section 8, on a “need to know” basis in connection with the services performed under this Contract. The receiving Party may disclose Confidential Information pursuant to legal, judicial, or administrative proceeding or otherwise as required by law; provided, however, that the receiving Party gives reasonable prior notice, if not prohibited by applicable law, to the disclosing Party and assists the disclosing Party, at the disclosing Party’s expense, to obtain protective or other appropriate confidentiality orders, and further provided that a required disclosure of Confidential Information or proprietary information to an agency or court does not relieve the receiving Party of its confidentiality obligations with respect to the other Party.

8.4 Contractor shall establish and maintain environmental, safety, and facility procedures, data security procedures and other safeguards against the unauthorized access, destruction, loss, or alteration of CalOptima’s Confidential Information in the possession, custody, or control of Contractor. Those security procedures and other safeguards shall be no less rigorous than those maintained by Contractor for its own information of a similar nature.

8.5 Upon written request of the disclosing Party, the receiving Party shall promptly return to the disclosing Party or destroy all documents, notes, and other tangible materials representing the disclosing Party’s Confidential Information and all copies thereof. This obligation to return materials or copies thereof does not extend to automatically generated computer backup or archival copies generated in the ordinary course of the receiving Party’s information systems procedures, provided that the receiving Party shall make no further use of such copies.

8.6 If a breach of the obligations under this Section occurs, the injured Party may be entitled to such injunctive relief and any and all remedies available at law or in equity to prevent further breach, including injunctive relief without the necessity to prove actual monetary damages or post a bond. This Section in no way limits the liability or damages that may be assessed against a Party if another Party breaches any of the provisions of this Section.

8.7 For the purposes of this section only, Confidential Information does not include protected health information (“PHI”) or individually identifiable information, as defined by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and other privacy statutes or regulations. The access use and disclosure of PHI shall be governed by a Business Associate Agreement, (BAA), which is attached to this Contract.

9. California Public Records Act.

As a local public agency, CalOptima is subject to the California Public Records Act (California Government Code Sections 6250 et seq.) (the “PRA”). Contractor hereby acknowledges that any materials, documents, data, or similar items are subject to disclosure upon public request, unless exempt from disclosure under the provisions of the PRA. CalOptima may be required to reveal certain information pursuant to the PRA believed to be proprietary or confidential by Contractor. If Contractor discloses information that it believes to be proprietary or confidential to CalOptima, it shall mark such information as “Confidential,” “Proprietary,” or “Restricted” or other similar marking. Unless Contractor marks its materials as “Confidential,” “Proprietary,” or “Restricted,” and also notifies CalOptima in writing that Contractor has so marked each piece of material, then CalOptima will not be responsible to take any actions to protect any Contractor’s materials under the PRA that are not so marked. If CalOptima receives a request under the PRA that potentially encompasses Contractor materials that have been properly marked, CalOptima will provide Contractor with notice thereof to allow Contractor to take actions it deems appropriate to prevent disclosure of the marked material. Within five days from receipt of CalOptima’s notice, Contractor shall notify CalOptima if it intends to object to production of Contractor’s information; otherwise CalOptima will respond to the PRA request according to the requirements of the PRA. Contractor agrees to defend, indemnify, and hold harmless CalOptima, its officers, agents, employees, members, subsidiaries, joint venture partners, and predecessors and successors in interest from and against any claim, action, proceeding, liability, loss, damage, cost, or expense, including attorneys’ fees, and any costs awarded to the person or entity that sought Contractor’s marked material, arising out of or related to CalOptima’s failure to produce or provide the Contractor-marked material (collectively referred to for purposes of this Section 9 as “Public Records Act Claims”). Contractor shall pay to CalOptima any expenses or charges relating to or arising from any such Public Record Act Claims as they are incurred by CalOptima.

10. Modifications.

CalOptima may modify the Contract upon written notice to Contractor at any time should such modification be required by CMS, DHCS, the DMHC, or applicable law or regulation (“Regulatory Amendment”). Any other modifications of the Contract that are not Regulatory Amendments shall be executed only by a written amendment to the Contract, signed by CalOptima and Contractor. Execution of amendments shall be contingent upon Contractor’s notification to CalOptima, and CalOptima’s approval, of any increase or decrease in the price of this Contract or in the time required for Contractor’s performance.

11. Assignments.

11.1 Contractor may not assign, transfer, or delegate any interest herein, either in whole or in part, without the prior written consent of CalOptima, which consent may be withheld in its sole discretion. If CalOptima provides such prior written consent, Contractor acknowledges and agrees that such assignment, transfer, or delegation may additionally be subject to the prior written approval of DHCS. Any assignment, transfer, or delegation made without CalOptima’s express written consent shall be void.

11.2 For purposes of this Section 11, an assignment is: (1) the change of more than fifty percent (50%) of the ownership or equity interest in Contractor (whether in a single transaction or in a series of transactions); (2) the change of more than fifty percent (50%) of the directors or trustees of Contractor (whether in a single transaction or in a series of transactions); (3) the merger, reorganization, or consolidation of Contractor with another entity with respect to which Contractor is not the surviving entity; and/or (4) a change in the management of Contractor from management by persons appointed, elected or otherwise selected by the governing body of Contractor (e.g., the Board of Directors) to a third-party management person, company, group, team or other entity.

12. Subcontracts.

Contractor may not subcontract or delegate its obligations or the performance of services under this Contract without CalOptima’s prior written consent, which CalOptima may exercise in its sole discretion. CalOptima-approved subcontractors are listed in Addendum 1 to Exhibit A.

13. Term.

This Contract shall commence on the Effective Date and shall continue in full force and effect through «Current Expiration» (“Initial Term”), unless earlier terminated as provided in this Contract. At the end of the Initial Term, CalOptima may, at its option, extend this Contract for up to «Extended Term spelled» («Extended Term») additional consecutive one-year terms (“Extended Terms”), provided that if CalOptima does not exercise its option to extend at the end of the Initial Term, or any Extended Term, the remaining options shall automatically lapse. The Initial Term together with any Extended Terms constitute the “Term” of this Contract.

14. Termination.

14.1 Termination without Cause. CalOptima may terminate this Contract at any time, in whole or in part, for its convenience and without cause, by giving Contractor thirty days’ prior written notice. Upon termination, CalOptima shall pay Contractor all fees and other charges due and payable for services satisfactorily performed and accepted by CalOptima as of the termination date. Thereafter, Contractor shall have no further claims against CalOptima under this Contract.

14.2 Termination for Unavailability of Funds. In recognition that CalOptima is a governmental entity and its operations and budgets are determined on an annual basis, CalOptima shall have the right to terminate this Contract as follows:

14.2.1 CalOptima may terminate this Contract if it does not receive funding from the State of California or the federal government, as applicable, for any fiscal year.

14.2.2 In the event of termination under Section 14.2.1, CalOptima agrees to promptly pay Contractor all fees and other charges due and payable for services satisfactorily performed and accepted by CalOptima as of the termination date. Contractor shall not be entitled to payment for any other items, including lost or anticipated profit on work not performed, administrative costs, attorneys’ fees, or consultants’ fees.

14.3 Termination for Insolvency. CalOptima may immediately terminate this Contract upon notice to Contractor for (i) Contractor’s bankruptcy, (ii) if a federal or state proceeding for the relief of debtors is undertaken by or against Contractor; or (iii) if Contractor makes an assignment for the benefit of creditors (“Termination for Insolvency).

14.4 Termination for Breach. Either Party may at its option, terminate this Contract by notice to the other Party if the other Party breaches one of its obligations under this Contract and fails to cure that breach or default within thirty days after receiving notice identifying that breach, provided that the non-breaching party may terminate the Contract immediately upon written notice if the non-breaching Party reasonably determines that cure of the default within thirty days is impossible. The rights described in this Section 14.4 to terminate this Contract shall be in addition to any other remedy available to the non-breaching Party, whether under this Contract or in law or equity, on account of that breach.

14.5 Notwithstanding the foregoing, CalOptima may terminate this Contract immediately upon Contractor’s breach of Section 3 (Insurance) or Section 8 (Confidential Material).

14.6 Effect of Termination. Upon expiration or receipt of a termination notice under this Section 14:

14.6.1 Contractor shall promptly discontinue all services (unless CalOptima’s notice directs otherwise) and deliver or otherwise make available to CALOPTIMA all documents, reports, software programs, and any other products, data and such other materials, equipment, and information, including Confidential Information, or equipment provided by CalOptima, as may have been accumulated by Contractor in performing this Contract, whether completed or in process. If Contractor personnel were granted access to CalOptima’s premises and issued a badge or access card, such badge or access card shall be returned prior to departure.

14.6.2 CalOptima may take over the services and may award another party a contract to complete the services under this Contract.

14.6.3 In the event of termination under Sections 14..3, 14.4, or 14.5, either Party shall be liable for any and all reasonable costs incurred by the non-breaching Party as a result of such a termination.

15. Dispute Resolution

15.1 Meet and Confer. If either Party has a dispute arising under or related to this Contract, the Parties shall informally meet and confer to try and resolve the dispute. The Parties shall meet and confer within thirty days of a written request submitted by either Party in an effort to settle any dispute. At each meet-and-confer meeting, each Party shall be represented by persons with final authority to settle the dispute. If either Party fails to meet within the thirty-day period, that Party shall be deemed to have waived the meet-and-confer requirement, and at the other Party’s option, the dispute may proceed immediately to arbitration under Section 15.2.

15.2 Subject to the California Government Claims Act (Cal. Gov. Code §900 et seq.) governing claims against public entities, either Party may submit the dispute for resolution exclusively through confidential, binding arbitration, instead of through trial by court or jury, in Orange County, California. The Parties may agree in writing prior to commencing the arbitration on the dispute resolution rules and arbitration service that will be used to resolve the dispute. If the Parties cannot reach such an agreement, the arbitration will be conducted by Judicial Arbitration and Mediation Services (“JAMS”) in accordance with the commercial dispute rules then in effect for JAMS; provided, however, that this Contract shall control in instances where it conflicts with JAMS’s (or the applicable arbitration service’s) rules. The arbitration shall be conducted on an expedited basis by a single arbitrator. The Parties prefer that the arbitrator be a retired judge of the California Superior, Appellate, or Supreme Court or of a United States court sitting in California. If no such retired judge is available, the arbitrator may be an attorney with at least fifteen (15) years of experience, including at least five years in managed health care. If the Parties are unable to agree on the arbitrator within thirty days of the date that the arbitration service accepts the arbitration, the arbitrator shall be selected by the arbitration service from a list of four potential arbitrators (all of whom shall be on arbitration services’ panel of arbitrators) submitted by the Parties, two from each side; provided, however, that nothing stated in this section shall prevent a Party from disqualifying an arbitrator based on a conflict of interest. In making decisions about discovery and case management, it is the Parties’ express agreement and intent that the arbitrator at all times promote efficiency without denying either Party the ability to present relevant evidence. In reaching and issuing decisions, the arbitrator shall have no jurisdiction to make errors of law and/or legal reasoning. The Parties shall share the costs of arbitration equally, and each Party shall bear its own attorneys’ fees and costs.

15.3 Exclusive Remedy. With the exception of any dispute that under applicable laws may not be settled through arbitration, arbitration under Section 15.2 is the exclusive method to resolve a dispute between the Parties arising out of or relating to this Contract that is not resolved through the meet-and-confer processes.

15.4 Waiver. By agreeing to binding arbitration as set forth in Section 15.2, the Parties acknowledge that they are waiving certain substantial rights and protections which otherwise may be available if a dispute between them was determined by litigation in a court, including the right to a jury trial, attorneys’ fees, and certain rights of appeal.

16. General Provisions.

16.1 Non-Exclusive Relationship. This is a non-exclusive relationship between CalOptima and Contractor. CalOptima shall have the right to have any of the services that are the subject of this Contract performed by CalOptima personnel or enter into contractual arrangements with one or more contractors who can provide CalOptima with similar or like services.

16.2 Compliance with Applicable Law and Policies. Contractor warrants that, in the performance of this Contract, it shall, at its own expense, observe and comply with all applicable federal, state, and local laws, and CalOptima vendor policies relating to services under the Contract that are in effect when this Contract is signed or that come into effect during the Term and are available to Contractor on CalOptima’s website.

16.3 Names and Marks. Neither Party shall use the name, logo or other proprietary mark of the other Party in any press release, advertising, promotional, marketing or similar publicly disseminated material without obtaining the other Party’s express written approval of the material and consent to such use.

16.4 Choice of Law. This Contract shall be governed by and construed in accordance with all laws of the State of California. If any Party institutes legal proceedings to enforce or interpret this Contract, venue and jurisdiction shall be in the County of Orange, California.

16.5 Force Majeure. When satisfactory evidence of a cause beyond a Party’s control is presented to the other Party, and nonperformance is unforeseeable, beyond the control, and not due to the fault of the Party not performing, a Party shall be excused from performing its obligations under this Contract during the time and to the extent that it is prevented from performing by such cause, including any incidence of fire, flood, acts of God, commandeering of material, products, plants or facilities by the federal, state or local governments, or a material act or omission by the other Party. A Party invoking this clause shall provide the other Party with prompt written notice of any delay or failure to perform that occurs by reason of force majeure. If the force majeure event continues for a period of 45 days, the Party unaffected by the force majeure event may terminate this Contract upon notice to the other Party.

16.6 Notices. All notices required or permitted under this Contract shall be in writing and shall be sent by registered or certified mail, postage prepaid, return receipt requested, or by any other overnight delivery service which delivers to the noticed destination and provides proof of delivery to the sender. All notices shall be effective when first received at the following addresses set forth below. Any notice not related to termination of this Contract may be submitted electronically to the address set forth below. Any Party whose address changes shall notify the other Party in writing.

CalOptima Health

505 City Parkway West

Orange, CA 92868

Attention: «Contract Manager»

Email: [enter email address]

16.7 Notice of Labor Disputes. Whenever Contractor has knowledge that any actual or potential labor dispute may delay this Contract, Contractor shall immediately notify and submit all relevant information to CalOptima.

16.8 No Liability of County of Orange. As required under Ordinance No. 3896 of the County of Orange, State of California, as amended, the Parties agree that the obligations of CalOptima under this Contract are solely the obligations of CalOptima, and the County of Orange, State of California, shall have no obligation or liability related to this Contract. [County of Orange Ordinance No 3896, codified in Orange County Municipal Code Section 4-11-7(a)]

16.9 Entire Agreement. This Contract, including all exhibits, addenda, and Contract Documents, contains the entire agreement between Contractor and CalOptima with respect to the subject matter of this Contract, and it supersedes all prior written or oral and all or contemporaneous oral agreements, representations, understandings, discussions, negotiations, and commitments between Contractor and CalOptima, whether express or implied, with respect to the subject matter of this Contract.

16.10 Waiver. Any failure of a Party to insist upon strict compliance with any provision of this Contract shall not be deemed a waiver of such provision or any other provision of this Contract. To be effective, a waiver must be in a writing that is signed and dated by the Parties. A waiver by either of the Parties of a breach of any of the covenants, conditions, or agreements to be performed by the other Party shall not be construed to be a waiver of any succeeding breach of the Contract or of any other covenant or condition of the Contract. Any information delivered, exchanged, or otherwise provided hereunder shall be delivered, exchanged, or otherwise provided in a manner that does not constitute a waiver of immunity or privilege under applicable law.

16.11 Survival. The following provisions of this Contract shall survive termination or expiration of this Contract: Sections 4 (Indemnification), 5 (Independent Contractor), 8 (Confidential Material), 9 (California Public Records Act), 14.6 (Effect of Termination), 15 (Dispute Resolution), 16.3 (Names and Marks), 16.4 (Choice of Law), 16.8 (No Liability of County of Orange), this Section 16.11, 16.13 (Interpretation), 16.14 (Third-Party Beneficiaries), 16.15 (Successors and Assigns) and any other Contract provisions that by their nature are intended to survive termination or expiration of this Contract.

16.12 Severability. If any section, subsection or provision of this Contract, or the application of such section, subsection or provision, is held invalid or unenforceable by any court of competent jurisdiction, the remainder of this Contract, other than that to which it is held invalid, shall remain in effect.

16.13 Interpretation. The terms of this Contract are the result of negotiation between the Parties. Accordingly, any rule of construction of contracts (including California Civil Code Section 1654) that ambiguities are to be construed against the drafting party shall not be employed in the interpretation of this Contract.

16.14 Third Party Beneficiaries. There are no intended third-party beneficiaries of this Contract. Nothing in this Contract shall be construed as conferring any rights on any other persons.

16.15 Successors and Assigns. Except as otherwise expressly provided in this Contract, this Contract will be binding on, and will inure to the benefit of, the successors and permitted assigns of the Parties. Nothing in this Contract is intended to confer upon any party other than the Parties or their respective successors and permitted assigns any rights or obligations under or by reason of this Contract, except as expressly provided in this Contract.

16.16 Without Limitation. Any reference in the Contract to “includes” or “including” means inclusion without limitation, unless otherwise distinguished within the text.

16.17 Authority to Execute. The persons executing this Contract on behalf of the Parties warrant that they are duly authorized to execute this Contract and that by executing this Contract the Parties are formally bound.

16.18 Counterparts. This Contract may be executed and delivered in one or more counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same instrument.

16.19 Recitals and Exhibits. The recitals, exhibits, and addenda attached to this Contract are made a part of the Contract by this reference.

IN WITNESS WHEREOF, these Parties have, by their duly authorized representatives, executed this Contract No. «Contract Number» on the day and year last shown below.

EXHIBIT A

Scope of Work

17. Description of Work

[add for each RFP]

18. Standard of Performance; Warranties.

2.1 Contractor agrees to perform all work under this Contract with the requisite skill and diligence consistent with professional standards for the industry and type of work performed under this Contract, and pursuant to the governing rules and regulations of the industry.

2.2 If Contractor may subcontract for services under this Contract, then Contractor represents and warrants that any individual or entity acting as a subcontractor to this Contract has the appropriate skill and expertise to perform the subcontracted work and will comply with all applicable provisions of this Contract.

2.3 Contractor expressly warrants that all material and work will conform to applicable specifications, drawings, description and samples, including CalOptima’s designs, drawings, and specifications, and will be merchantable, of good workmanship and material, and free from defect. Contractor further warrants that all material covered by this Contract, if any, which is the product of Contractor will be new and unused unless otherwise specified and shall be fit and sufficient for the purpose intended by CalOptima, as disclosed to Contractor. Contractor shall promptly make whatever adjustments or corrections that may be necessary to cure any defects, including repairs of any damage resulting from such defects. CalOptima shall give notice to Contractor of any observed defects. If Contractor fails to adjust, repair, correct, or perform other work made necessary by such defects, CalOptima may make such adjustments, repairs, and/or corrections and charge Contractor the costs incurred.

2.4 Contractor’s warranties, together with its service guarantees, must run to CalOptima and its customers or users of the material and services, and must not be deemed exclusive. CalOptima’s inspection, approval, acceptance, use of and payment for all or any part of the material and services must in no way affect its warranty rights whether or not a breach of warranty had become evident in time.

2.5 Contractor’s obligations under this Section 2 are in addition to Contractor’s other express or implied warranties and other obligations under this Contract or state law, and in no way diminish any other rights that CalOptima may have against Contractor for faulty materials, equipment or work. CalOptima rejects any disclaimer by Contractor of any warranty, standard, implied or express, unless specifically agreed to in writing by both Parties.

2.6 Any CalOptima property damaged by Contractor, its subcontractors, or by the personnel of either, will be subject to repair or replacement by Contractor at no cost to CalOptima.

19. Record Ownership and Retention.

3.1 The originals of all letters, documents, reports, and any other products and data prepared or generated for the purposes of this Contract shall be delivered to and become the property of CalOptima at no cost to CalOptima and in a form accessible for CalOptima’s use. Copies may be made for Contractor’s records but shall not be furnished to others without written authorization from CalOptima. Such deliverables shall become the sole property of CalOptima and all rights in copyright therein shall be retained by CalOptima. CalOptima’s ownership of these documents includes use of, reproduction or reuse of, and all incidental rights. Contractor shall provide all deliverables within a reasonable amount of time upon CalOptima’s request, but in no event shall such time exceed thirty calendar days unless otherwise specified by CalOptima.

3.2 Contractor hereby assigns to CalOptima all of its rights in all materials prepared by or specifically on behalf of CalOptima under this Contract (“Works”), and this Contract will be deemed a transfer to CalOptima of the sole and exclusive copyright of any copyrightable subject matter in these Works. Contractor will cause its agents and employees to execute any documents necessary to secure or perfect CalOptima’s legal rights and worldwide ownership in such materials, including documents relating to patent, trademark and copyright applications. Upon CalOptima’s request, Contractor will return or transfer all property and materials, including the Works, in Contractor’s possession or control belonging to CalOptima.

20. Required Insurance

1.1. Commercial General Liability, including contractual liability and coverage for independent contractors on an occurrence basis on an ISO form GC 00 01 or equivalent covering bodily injury and property damage with the following minimum liability limits:

1.1.1. Per occurrence: $1,000,000

1.1.2. Personal Advertising Injury: $1,000,000

1.1.3. Products Completed Operations: $2,000,000

1.1.4. General Aggregate: $2,000,000

1.2. If Contractor or subcontractors are on CalOptima’s premises or transporting CalOptima members or employees, Commercial Automobile Liability covering any auto, whether owned, lease, hired, or rented, on an ISO form CA 0001 or equivalent in the amount of $1,000,000 combined single limit for bodily injury or property damage.

1.3. Worker’s Compensation and Employer’s Liability Policy written in accordance with applicable laws and providing coverage for all of Contractor’s employees:

1.3.1. The policy must provide statutory coverage for Worker’s Compensation.

1.3.2. The policy must also provide coverage for $1,000,000 Employers’ Liability for each employee, each accident, and in the general aggregate.

1.4. Professional Liability insurance covering the Contractor’s professional errors and omissions with $1,000,000 per occurrence and $2,000,000 general aggregate.

1.5. Commercial crime policy covering employee theft and dishonesty, forgery and alteration, money orders and counterfeit currency, credit card fraud, wire transfer fraud, and them of client property with $1,000,000 limits per occurrence.

1.6. Cyber Liability insurance with the minimum limits of insurance listed below covering first and third-party claims involving privacy violations, data breaches, information theft, damage to or destruction of electronic information, intentional and/or unintentional release of private information, alteration of electronic information, extortion and network security. Such coverage shall provide for costs of legal fees, forensic expenses, regulatory fines and penalties, notification expenses, credit monitoring and ID theft repair, public relations expenses, and costs of liability and defense.

1.6.1. $1,000,00.00 each occurrence/claim and $1,000,00.00 aggregate.

1.7. “Occurrence” means any event or related exposure to conditions that result in bodily injury or property damage.

EXHIBIT A

Addendum 1

The following is a list of subcontractors approved to perform Services under this Contract:

EXHIBIT B

Payment

1. For Contractor’s full and complete performance of its obligations under this Contract, CalOptima shall pay Contractor for fees and expenses in accordance with the provisions of this Exhibit B and subject to the maximum cumulative payment obligations specified below.

2. Contractor will invoice CalOptima on a monthly basis for actual labor hours expended. The hourly rates, as defined below, are acknowledged to include Contractor’s base labor rates, overhead and profit. Work completed shall be documented in a monthly progress report prepared by Contractor, which report shall accompany each invoice submitted by Contractor. Contractor shall also furnish such other information as may be requested by CalOptima to substantiate the validity of an invoice. At its sole discretion, CalOptima may decline to make full payment for any work and direct costs until such time as Contractor has documented, to CalOptima’s satisfaction, that Contractor has fully completed all work required under this Contract and Contractor’s performance is accepted by CalOptima. CalOptima’s payment in full for any work shall not constitute CalOptima’s final acceptance of Contractor’s work under this Contract.

3. Contractor shall submit to CalOptima, to the attention of Accounts Payable, accountspayable@caloptima.org, an invoice at the conclusion of every month for the Services performed during the prior thirty days. Each invoice shall cite Contract No. «Contract Number»; specify the number of hours worked; the specific dates the hours were worked; the description of work performed; the time period covered by the invoice and the amount of payment requested; and be accompanied by a progress report. CalOptima shall remit payment within thirty days of receipt and approval of each invoice.

4. Notwithstanding any provisions of this Contract to the contrary, CalOptima and Contractor mutually agree that CalOptima’s maximum cumulative payment obligation hereunder for work performed and/or products received on Exhibit A of this Contract shall not exceed [Insert Maximum Cumulative Payment Amount, Written] Dollars ($[Insert Maximum Cumulative Payment Amount, Number]), including all amounts payable to Contractor for its direct labor and expenses, overhead costs, fixed fee, subcontracts, leases, materials, and costs arising from or due to termination of this Contract.

5. Contractor shall invoice CalOptima on a per job basis. All rates, defined in all quotations received from Contractor throughout the Term, are acknowledged to include Contractor’s base labor rates, overhead, and profit. Contractor’s completed work under this Contract shall be documented in a report prepared by Contractor that accompanies each invoice submitted by Contractor. Contractor shall also furnish any other information requested by CalOptima to substantiate the validity of an invoice. At its sole discretion, CalOptima may decline to make full payment for any work and direct costs until such time as Contractor has documented, to CalOptima’s satisfaction, that Contractor has (i) fully completed all work required under this Contract in accordance with the Contract terms and Contractor’s initial quotation and (ii) Contractor’s performance is accepted by CalOptima. CalOptima’s payment in full for any work shall not constitute CalOptima’s final acceptance of Contractor's work under this Contract.

1. EXHIBIT B-1

Payment Schedule

2. Milestone

Completion Date Fee

3. ____________________________

4. ____________________________

5. ____________________________

6. TOTAL

7. Name

Title/Labor Category Rate

8. ____________________________

9. ____________________________

10. ____________________________

11. EXHIBIT C

12. Regulatory Requirements

CalOptima is a public agency and is licensed by the DMHC. In addition, CalOptima arranges for the provision of Medi-Cal services to Medi-Cal beneficiaries under a contract with DHCS (“DHCS Contract”) and Medicare Advantage (“MA”) services to Medicare beneficiaries under a contract CMS (“CMS Contract”).