RFP_9100_JOG3030_PAC2_v1.docx

offer SHEET Solicitation RFP 9100 JOG3030

By signing below, I represent and certify that I am submitting a binding Offer and am authorized to bind the Offeror to fully comply with the Solicitation to which I submit this Offer. I acknowledge that I have received, read, and understood the entire solicitation document packet sections, including any addenda issued, and agree to be bound by its terms.

By submitting this Offer, I certify the following statements are true now and will be for the term of any resulting contract:

1. That my firm and its principals (collectively “we” or “us”) are not currently suspended or debarred from bidding on any Federal, State, or City of Austin Contracts.

2. That we have not in any way directly or indirectly:

a. colluded, conspired, or agreed with any other person, firm, corporation, Proposer or potential Proposer to the amount of this Proposal or the terms or conditions of this Proposal.

b. paid or agreed to pay any other person, firm, corporation Proposer or potential Proposer any money or anything of value in return for assistance in procuring or attempting to procure a contract or in return for establishing the prices in the attached Proposal or the Proposal of any other Proposer.

3. That we have not received any compensation or a promise of compensation for participating in the preparation or development of the underlying Solicitation or Contract documents. In addition, we have not otherwise participated in the preparation or development of the underlying Solicitation or Contract documents, except to the extent of any comments or questions and responses in the solicitation process, which are available to all Proposers, so as to have an unfair advantage over other Proposers, provided that we may have provided relevant product or process information to a consultant in the normal course of its business.

4. That we have not participated in the evaluation of Proposals or other decision making process for this Solicitation and, if we are awarded a Contract, no individual, agent, representative, consultant, subcontractor, or sub-consultant associated with us, who may have been involved in the evaluation or other decision making process for this Solicitation, will have any direct or indirect financial interest in the Contract, provided that we may have provided relevant product or process information to a consultant in the normal course of its business.

5. In accordance with Chapter 176 of the Texas Local Government Code, that we:

a. do not have an employment or other business relationship with any local government officer of the City or a family member of that officer that results in the officer or family member receiving taxable income

b. have not given a local government officer of the City one or more gifts, other than gifts of food, lodging, transportation, or entertainment accepted as a guest, that have an aggregate value of more than $100 in the twelve month period preceding the date the officer becomes aware of the execution of the Contract or that City is considering doing business with the Offeror; and

c. do not have a family relationship with a local government officer of the City in the third degree of consanguinity or the second degree of affinity.

6. Pursuant to City Council Resolution No. 20191114-056, we are not currently and will not during the term of the Contract engage in practicing LGBTQ+ conversion therapy; referring persons to a healthcare provider or other person or organization for LGBTQ+ conversion therapy; or Contracting with another entity to conduct LGBTQ+ conversion therapy. If the City determines in its sole discretion that we have, during the term of the resulting Contract, engaged in any such practices, the City may terminate this Contract without penalty to the City.

7. Pursuant to Texas Government Code §2271.002, we verify that we do not boycott Israel and will not boycott Israel during the term of the resulting contract.

8. Pursuant to Texas Government Code Chapter 2275, we verify that if we have remote or direct access to communication infrastructure systems, cybersecurity systems, the electric grid, hazardous waste treatment systems, or water treatment facilities as a result of any City contract, that we are not owned by or the majority of stock or other ownership interest of our firm is not held or controlled by:

a. individuals who are citizens of China, Iran, North Korea, Russia, or a Governor-designated country; or

b. a company or other entity, including a governmental entity, that is owned or controlled by citizens of or is directly controlled by the government of China, Iran, North Korea, Russia, or a Governor-designated country; or

c. headquartered in China, Iran, North Korea, Russia, or a Governor-designated country.

9. Pursuant to ERCOT Protocols Section 16.1.4(1)(b), we verify that if we provide Critical Electrical Grid Equipment (CEGE) or Critical Electric Grid Services (CEGS), any CEGE or CEGS we provide were not manufactured, produced, created, or otherwise provided by a Lone Star Infrastructure Protection Act (LSIPA) Designated Company.

Critical Electric Grid Equipment (CEGE). (1) Equipment accessible by means of routable connectivity that, as installed, can be used to gain remote access to or control of ERCOT System Infrastructure, the ERCOT Wide Area Network (WAN), or Market Information System (MIS), if such equipment, if destroyed, degraded, misused, or otherwise rendered unavailable would, within 15 minutes or less of its mis-operation, non-operation, or required operation, adversely impact the reliable operation of ERCOT System Infrastructure. Redundancy of affected facilities, systems, and equipment shall not be considered when determining adverse impact. (2) For Load Resources, this definition only applies to equipment used to send and receive ERCOT telemetry and ERCOT Dispatch Instructions. (3) For purposes of this definition, “reliable operation of ERCOT System Infrastructure” means operating elements of ERCOT System Infrastructure within equipment and electric system thermal, voltage, and stability limits so that instability, uncontrolled separation, or cascading failures of ERCOT System Infrastructure will not occur as a result of a sudden disturbance, including a cybersecurity incident, or unanticipated failure of system elements.

Critical Electric Grid Services (CEGS). Services and software provided by a vendor for the operation, control, monitoring, maintenance, or use of Critical Electric Grid Equipment (CEGE), excluding access specifically allowed by the purchaser for product warranty or support purposes.

ERCOT System Infrastructure. The Transmission Facilities, distribution facilities, Resources, Settlement Only Generators (SOGs), and Emergency Response Service (ERS) Resources that comprise the ERCOT System and the physical and virtual cyber assets used to control the ERCOT System.

Lone Star Infrastructure Protection Act (LSIPA) Designated Company. An Entity (including an LSIPA Affiliate) that meets any of the company ownership or headquarters criteria listed in Texas Business and Commerce Code, Section 117.002(a)(2)(A)-(b)(2)(B) or Texas Government Code Section 2275.0102(a)(2)(A)-(b)(2)(B).

Lone Star Infrastructure Protection Act (LSIPA) Designated Country. China, Iran, North Korea, Russia, or a country designated by the Governor as a threat to critical infrastructure pursuant to Texas Business and Commerce Code, Section 117.003 or Texas Government Code, Section 2275.0103.

Lone Star Infrastructure Protection Act (LSIPA) Affiliate. An Entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with the LSIPA Designated Company. For purposes of this definition, “controls,” “controlled by,” or “under common control with” shall mean (1) the ownership of 20 percent or more of the outstanding securities of an Entity or (2) the power of an Entity, directly or indirectly, through one or more intermediaries, to direct the management and/or policies and procedures of another Entity. Ownership by an Entity of equity securities (whether publicly traded or not) of another Entity shall not result in control for purposes of this definition if the holder owns (in its name or via intermediaries) 20 percent or more of the outstanding securities of the Entity, and: (a) the securities are held as a passive investment; (b) the holder does not have representation on the Entity’s board of directors (or equivalent governing body) or vice versa; and (c) the holder does not in fact exercise influence over day-to-day management decisions.

10. Pursuant to Texas Government Code Chapter 2274, we verify that, if we have 10 or more full-time employees: (1) we do not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate during the term of the resulting contract against a firearm entity or firearm trade association.

11. Pursuant to Texas Government Code Chapter 2276, we certify that, if we have 10 or more full-time employees: (1) we do not boycott energy companies; and (2) will not boycott energy companies during the term of the contract.

12. That we have and will continue to comply with the City’s Anti-Lobbying Ordinance, Chapter 2-7, Article 6.

No Lobbying Period. The No-Lobbying Period begins on the data this Solicitation was initially published and continues through the earlier of (i) 60-days following Council authorization of any contracts resulting from this Solicitation, (ii) the date the last resulting contract is signed, (iii) the date this Solicitation is cancelled.

Prohibited Communications. During the No Lobbying Period, Respondents to this Solicitation or their Agents, shall not make prohibited communications to City officials or City employees.

Ordinance. 20180614-056, Ordinance (austintexas.gov) Rules. Notice_of_Rule_Adoption_ALO_2019.pdf (austintexas.gov)

Company Name:

ACCEPTANCE BY THE CITY

For City Staff only. The City will complete and sign this section only if the City accepts the Offer.

ACCEPTANCE: The Offer is hereby accepted. Contractor is now bound to sell the materials or services specified in the Contract.

Nonresident Bidder ProvisionS

Instruction. Offerors shall read and check the applicable boxes in response to both certifications below.

OFFEROR HEREBY CERTIFIES

(Check One) ☐YES ☐NO Offeror IS (YES) or IS NOT (NO) a Non-resident Bidder in accordance with Texas Government Code Ch. 2252.002.

If “YES” is checked, provide the name of the State where Nonresident Bidder's Principle Place of Business is located.

(State)

OFFEROR HEREBY CERTIFIES

(Check One) ☐YES ☐NO Offer INCLUDES (YES) or DOES NOT INCLUDE (NO) Equipment, Supplies and/or Materials in accordance with Texas Government Code Ch. 2252.002

If “YES” is checked, provide the name of the State where majority of the Equipment, Supplies and/or Materials were manufactured.

(State)

Reciprocal Preference. In accordance with Texas Government Code Ch. 2252.002 (see below), the City must apply a reciprocal preference to a Nonresident Bidder’s offer, consistent with the applicable preference granted by the state of the Nonresident Bidder’s principal place of business. The City will also apply a reciprocal preference to a Resident Bidder or Nonresident Bidder’s offer, consistent with the applicable preference granted by the state where the majority of the equipment, supplies and/or materials were manufactured.

Resident bidder. An Offeror whose principal place of business is in Texas, including a contractor whose ultimate parent company or majority owner has its principal place of business in Texas.

Nonresident Bidder. An Offeror that is not a Resident Bidder.

Statute: https://statutes.capitol.texas.gov/Docs/GV/htm/GV.2252.htm local business CERTIFICATION (optional)

LOCAL BUSINESS PREFERENCE – PROCUREMENT PROGRAM

To encourage Local Businesses to participate in City solicitations and to increase the opportunities to do business with the City, the City of Austin maintains a Local Business Preference Procurement or “Local Preference” Program.

Note: Local Business Preference may not be allowable, and will not be provided, in solicitations subject to federal funding.

1 Instructions. Offerors meeting the following criteria are encouraged to complete this form and include it with their Offer.

1.1 Local Business. The City defines a Local Business as any person or corporate entity with Headquarters located within the Local Area. The City defines Headquarters as (a) the location of the owners or leadership, where they provide direction and management of the entity, and/or (b) the location of the entity’s Administrative Center, where most of the entity’s important business and operational activities are managed.

1.2 Local Area. The City defines the Local Area as being within the Austin-Round Rock-San Marcos Metropolitan Statistical Area (MSA), including all areas within Bastrop, Caldwell, Hays, Travis and Williamson counties, or “Greater Austin”.

2 Confirmation. The City may request additional information to confirm the Offeror’s Headquarters, including resources like the following (https://geomap.ffiec.gov/ffiecgeomap/) and (https://mycpa.cpa.state.tx.us/coa/).

3 Misrepresentation. If the City determines any of the Offeror’s information regarding their Headquarters is incorrect, the City may withhold any available preference. If the City determines the error was intentional, the City may disqualify the Offeror from any resulting contract as being non-responsible. If the Offeror is awarded the contract, and the misrepresentation is discovered after contract award, the City reserves the right to void the contract.

OFFEROR CERTIFICATION

Headquarters Address Physical Address of Offeror’s Headquarters:

Headquarters Certification Functions provided at Offeror’s Headquarters, as defined above (check at least one).

☐ Location of the entity’s Owners or Leadership ☐ Location of entity’s Administrative Center

SMALL BUSINESS PREFERENCE – PROCUREMENT PROGRAM

To encourage Small Businesses to participate in City solicitations and to increase the opportunities to do business with the City, the City of Austin maintains a Small Business Preference Procurement or “Small Business” Program.

1 Instructions. Offerors meeting the following criteria are encouraged to complete this form and include it with their Offer.

1.1 Small Business. The City defines Small Businesses as any person or corporate entity holding a recognized Certification that, among the Certification’s requirements, includes compliance with the US Small Business Administration’s Small Business Size Standard.

1.2 Certifications Recognized. At this time, the City recognizes the following Certifications in determining a Small Business for purposes of this program. (see Small Business Program on AustinTexas.gov here: https://www.austintexas.gov/page/small-business-program).

2 Confirmation. The City may request additional information to confirm the Offeror’s Certification and status, including contacting the certifying entity.

3 Misrepresentation. If the City determines any of the Offeror’s information regarding their Certification is incorrect, the City may withhold any available preference. If the City determines the error was intentional, the City may disqualify the Offeror from any resulting contract as being non-responsible. If the Offeror is awarded the contract, and the misrepresentation is discovered after contract award, the City reserves the right to void the contract.

OFFEROR CERTIFICATION

Recognized Certification, including Small Business Size Standard Certifying Entity:

Certification Name (ACRONYM):

Certification Number:

Certification Expiration Date:

Employer certification wage theft ordinance – responsibility criteria

WAGE THEFT

Any Employer that submits an offer to the City seeking award of a city contract prior to awarding a contract are required to certify that they have not been adjudicated for certain offenses related to wage theft. See City of Austin Ordinance No. 20221201-031. “Wage theft” and “adjudicated” are to be understood per the definitions set forth in Austin City Code Chapter 4, § 4-22-1 (G) and (H).

All Employers are required to complete the City of Austin Wage Theft Training within 30 days of being awarded a contract with the City.

Contact the Wage Compliance Team to register for a class.

I hereby certify, under penalty of perjury under the laws of the State of Texas, that the below certification is true and correct and that I am authorized to make the following certification on behalf of the firm listed herein.

CERTIFICATION:

This firm has NOT been adjudicated for wage theft related incidents as defined in Austin City Code Chapter 4, § 4-22-1 (G) & (H) within five (5) years prior to the above-stated date. Furthermore, this firm agrees to abide by the items outlined in Section 4-22-5 (B) and Section 4-22-6 (A) of the Austin City Code.

Name of Employer - Print Full Legal Entity Name of Firm

Signature of Authorized Person

Print Name of Person Making Certification for Firm

Title of Person Making Certificate

Print City and State Where Signed

EMPLOYER CERTIFICATION – WAGE THEFT PROGRAM

If you have questions or need more information, contact us at wagetheft@austintexas.gov

Subcontracting utilization form

SUBCONTRACT UTILIZATION FORM

In accordance with the City of Austin’s Minority and Women-Owned Business Enterprises (M/WBE) Procurement Program (Program), Chapters 2-9A and 2-9B of the City Code and M/WBE Procurement Program Rules, this Solicitation was reviewed by Austin Small and Minority Business Resources (ASMBR) to determine if M/WBE Subcontractor/Sub-Consultant (“Subcontractor”) Goals could be applied. Due to insufficient subcontracting/subconsultant opportunities and/or insufficient availability of M/WBE certified firms, ASMBR has assigned no subcontracting goals for this Solicitation. However, Offerors who choose to use Subcontractors must comply with the City’s M/WBE Procurement Program as described below. Additionally, if the Contractor seeks to add Subcontractors after the Contract is awarded, the Program requirements shall apply to any Contract(s) resulting from this Solicitation.

Instructions:

A. Offerors who do not intend to use Subcontractors shall check the “NO” box and follow the corresponding instructions.

B. Offerors who intend to use Subcontractors shall check the applicable “YES” box and follow the instructions. Offers that do not include the following required documents shall be deemed non-compliant or nonresponsive as applicable, and the Offeror’s submission may not be considered for award.

☐ NO, I DO NOT intend to use Subcontractors/Sub-consultants.

Instructions: Offerors that do not intend to use Subcontractors shall complete and sign this form below (Subcontracting/Sub-Consulting (“Subcontractor”) Utilization Form) and include it with their sealed Offer.

☐ YES, I DO intend to use Subcontractors /Sub-consultants.

Instructions: Offerors that do intend to use Subcontractors shall complete and sign this form below (Subcontracting/Sub-Consulting (“Subcontractor”) Utilization Form), and follow the additional Instructions in the (Subcontracting/Sub-Consulting (“Subcontractor”) Utilization Plan). Contact ASMBR if there are any questions about submitting these forms.

Offeror Information

Is the Offeror City of Austin M/WBE certified?

☐ NO

☐ YES Indicate one: ☐ MBE ☐ WBE ☐ MBE/WBE Joint Venture

Offeror Certification: I understand that even though ASMBR did not assign subcontract goals to this Solicitation, I will comply with the City’s M/WBE Procurement Program if I intend to include Subcontractors in my Offer. I further agree that this completed Subcontracting/Sub-Consulting Utilization Form, and if applicable my completed Subcontracting/Sub-Consulting Utilization Plan, shall become a part of any Contract I may be awarded as the result of this Solicitation. Further, if I am awarded a Contract and I am not using Subcontractor(s) but later intend to add Subcontractor(s), before the Subcontractor(s) is hired or begins work, I will comply with the City’s M/WBE Procurement Program and submit the Request For Change form to add any Subcontractor(s) to the Project Manager or the Contract Manager for prior authorization by the City and perform Good Faith Efforts (GFE), if applicable. I understand that, if a Subcontractor is not listed in my Subcontracting/Sub-Consulting Utilization Plan, it is a violation of the City’s M/WBE Procurement Program for me to hire the Subcontractor or allow the Subcontractor to begin work, unless I first obtain City approval of my Request for Change form. I understand that, if a Subcontractor is not listed in my Subcontracting/Sub-Consulting Utilization Plan, it is a violation of the City’s M/WBE Procurement Program for me to hire the Subcontractor or allow the Subcontractor to begin work, unless I first obtain City approval of my Request for Change form.

Name and Title of Authorized Representative (Print or Type)

Signature / Date

Subcontracting utilization plan

INSTRUCTIONS: Offerors who DO intend to use Subcontractors must either utilize M/WBE Subcontractor(s) or perform Good Faith efforts when retaining Non-certified Subcontractor(s). Offerors must determine which type of Subcontractor(s) they are anticipating to use (CERTIFIED OR NON-CERTIFIED), check the box of their applicable decision, and comply with the additional instructions associated with that particular selection.

☐ I intend to use City of Austin CERTIFIED M/WBE Subcontractor/Sub-consultant(s).

Instructions: Offerors may use Subcontractor(s) that ARE City of Austin certified M/WBE firms. Offerors shall contact ASMBR (512-974-7600 or SMBRComplianceDocuments@austintexas.gov) to confirm if the Offeror’s intended Subcontractor(s) are City of Austin certified M/WBE and if these firm(s) are certified to provide the goods and services the Offeror intends to subcontract. If the Offeror’s Subcontractor(s) are current valid certified City of Austin M/WBE firms, the Offeror shall insert the name(s) of their Subcontractor(s) into the table below and must include the following documents in their sealed Offer:

· Subcontracting/Sub-Consulting Utilization Form (completed and signed)

· Subcontracting/Sub-Consulting Utilization Plan (completed)

☐ I intend to use NON-CERTIFIED Subcontractor/Sub-Consultant(s) after performing Good Faith Efforts.

Instructions: Offerors may use Subcontractors that ARE NOT City of Austin certified M/WBE firms ONLY after Offerors have first demonstrated Good Faith Efforts to provide subcontracting opportunities to City of Austin M/WBE firms.

STEP ONE: Contact ASMBR for an availability list for the scope(s) of work you wish to subcontract;

STEP TWO: Perform Good Faith Efforts (Check List provided below);

STEP THREE: Offerors shall insert the name(s) of their certified or non-certified Subcontractor(s) into the table below and must include the following documents in their sealed Offer:

· Subcontracting/Sub-Consulting Utilization Form (completed and signed)

· Subcontracting/Sub-Consulting Utilization Plan (completed)

· All required documentation demonstrating the Offeror’s performance of Good Faith Efforts (see Check List below)

GOOD FAITH EFFORTS CHECK LIST –

When using NON-CERTIFIED Subcontractor/Sub-consultants(s), ALL of the following CHECK BOXES MUST be completed in order to meet and comply with the Good Faith Effort requirements and all documentation must be included in your sealed Offer. Documentation CANNOT be added or changed after submission of the bid.

(Offerors may duplicate this page to add additional Subcontractors as needed) Subcontractor/Sub-consultant

Subcontractor/Sub-consultant

ASMBR Contact Information

OR

☐ Email

FOR AUSTIN SMALL AND MINORITY BUSINESS RESOURCES USE ONLY:

Having reviewed this plan, I acknowledge that the Offeror ☐ HAS or ☐ HAS NOT complied with these instructions and City Code Chapters 2-9A/B, as amended.

Reviewing Counselor

Date

I have reviewed the completed Subcontracting/Sub-Consultant Utilization Plan and ☐ Concur or ☐ DO NOT Concur with the Reviewing Counselor’s recommendation.

Director / Assistant Director or Designee

Date

HIPAA BUSINESS ASSOCIATE CERTIFICATION

This Certification is made by the person or entity identified in the signature block below (the “Business Associate”), and is made with reference to the following facts:

i. The Program is subject to the privacy and other requirements of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”);

ii. Under the HIPAA Rules (defined below), the City of Austin (“City”) is required to obtain written agreement from the Business Associate with the terms and conditions provided below; and

iii. The Business Associate makes this Certification in order to comply with the HIPAA Rules (defined below), and to safeguard Protected Health Information (defined below) appropriately.

Therefore, the Business Associate Certifies the following:

1. Definitions. As used in this Certification:

A. “HIPAA Rules” and/or “HIPAA” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules implementing HIPAA and set out at 45 CFR Part 160 and Part 164.

B. “Individually Identifiable Health Information” shall mean information collected from an individual, including demographic information, that:

i. Is created or received by the City and provided to the Business Associate; and

ii. Relates to: (a) the past, present, or future physical or mental health or condition of an individual; (b) the provision of healthcare to an individual; or (c) the past, present, or future payment for the provision of healthcare to an individual; and

iii. Which identifies the individual, or with respect to which there is a reasonable basis to believe the information can be used to identify the individual.

C. “Protected Health Information” shall mean Individually Identifiable Health Information that is: (i) transmitted by electronic media; (ii) maintained in any medium constituting electronic media; or (iii) transmitted or maintained in any other form or medium.

D. “Agent” and “Subcontractor” shall mean a third party who is not an employee in the workforce of the Business Associate and who receives Protected Health Information from the Business Associate for purposes of carrying out any part of the Business Associate’s responsibilities under its services agreement with the City.

E. “Business Associate” shall have the same meaning as the term “business associate” set out at 45 CFR Part 160.103.

2. The Business Associate Certifies to Permitted Uses and Disclosures of Protected Health Information as Follows:

A. The Business Associate shall only use or disclose Protected Health Information for the following purposes: (i) to receive and process claims for payment for eligible Program participants; (ii) to maintain claims history and patient profiles; (iii) to maintain current eligibility data on Program participants; and (iv) for the management and administration of its internal business processes that relate to its legal responsibilities and its responsibilities under the services contract between the City and the Business Associate.

B. The Business Associate shall only use or disclose Protected Health Information as required by law.

C. The Business Associate shall make its internal practices, books, and records, including policies and procedures, relating to the use and disclosures of Protected Health Information available to the Secretary of the United States Department of Health and Human Services for purposes of determining compliance with HIPAA.

D. Within ten (10) calendar days of receipt of a request by the City, the Business Associate shall permit any individual whose Protected Health Information is maintained by the Business Associate to have access to and to copy his or her Protected Health Information, in the format requested, unless it is not readily producible in such format, in which case it shall be produced in hard copy format. In the event any individual requests access to Protected Health Information held by the Business Associate directly from the Business Associate, the Business Associate shall, within two (2) days forward such request to the City.

3. The Business Associate Certified to Prohibitions on Use and Disclosure of Protected Health Information as Follows:

A. The Business Associate shall not use or further disclose Personal Health Information except as permitted or required by law.

B. The Business Associate shall not sell Protected Health Information, including patient or enrollee lists, nor use any Protected Health Information to engage in “marketing,” as that term is defined in 45 CFR Part 164.501

C. The Business Associate shall not disclose Personal Health Information to any member of its workforce unless the Business Associate has advised such person of the Business Associate’s obligations under this Certification and of the consequences for such person and for the Business Associate of violating them.

D. The Business Associate shall not disclose Personal Health Information to any Agent, Subcontractor or other third party unless disclosure is required by law, or unless expressly approved in advance by the City in writing. Any such disclosure shall be made in accordance with 45 CFR Parts 164.502 and 164.308, and only upon the written agreement of the Agent, Subcontractor or other third party which shall include, at a minimum:

i. The agreement of such Agent, Subcontractor or other third party that creates, receives, maintains, or transmits protected health information on behalf of the Business Associate to be bound to the same restrictions, conditions and requirements that apply to Business Associate with respect to such information;

ii. Reasonable assurances from such Agent, Subcontractor or other third party that Personal Health Information will be held confidential as the Business Associate certifies to do in this Certification, and only disclosed as required by law or for the purposes for which it was disclosed to such Agent, Subcontractor or other third party; and

iii. An agreement from such Agent, Subcontractor or other third party to immediately notify the Business Associate of any breaches of the confidentiality of Personal Health Information, to the extent it has obtained knowledge of such breach.

4. The Business Associate Certifies to Safeguards for Protected Health Information as Follows:

A. The Business Associate shall implement appropriate safeguards to prevent use or disclosure of Personal Health Information other than as stated in this Certification. The Business Associate shall provide the City with information concerning such safeguards as the City may from time-to-time request. Upon reasonable request, the Business Associate shall give the City access for inspection and copying to the Business Associate’s facilities used for the maintenance and processing of Personal Health Information, and to its books, records, practices, policies, and procedures concerning the use and disclosure of Personal Health Information.

B. The Business Associate and any Agent or Subcontractor shall comply with the minimum necessary requirements set forth in the HIPAA Rules when using or disclosing Personal Health Information. The Business Associate also agrees to mitigate, to the extent possible, any harmful effects of an improper use or disclosure of Personal Health Information by the Business Associate in violation of the guarantees of this Certification. The Business Associate shall make its internal practices, books, records, including policies and procedures, related to the use and disclosures of protected health information available to the Secretary of the United States Department of Health and Human Services, for purposes of determining compliance with HIPAA.

C. The Business Associate shall maintain a record of all Personal Health Information disclosures made other than for the permitted purposes of this Agreement, including the date of disclosure, the name and, if known, the address of the recipient of the Personal Health Information, a brief description of the Personal Health Information disclosed, and the purposes of the disclosures.

D. The Business Associate shall comply with all written directions from the City concerning:

i. any special limitations on the use or disclosure of Protected Health Information beyond the requirements of the HIPAA Rules;

ii. any changes in, or revocation of, the permission by an individual to use or disclose his or her Protected Health Information that may affect the Business Associate’s use or disclosure of such information; and

iii. any restriction on the use or disclosure of Protected Health Information that the City has agreed to that may affect the Business Associate’s use or disclosure of such information.

E. Within ten (10) calendar days of notice by the City to the Business Associate that the City has received a request for an accounting of disclosures of Personal Health Information regarding an individual, the Business Associate shall make available to the City such information as is in the Business Associate’s possession and is required for the City to make the accounting.

F. Within five (5) business days of becoming aware of a use or disclosure of Personal Health Information in violation of this Certification by the Business Associate, Agent or Subcontractor, the Business Associate shall report such disclosure or use in writing to the City and describe the remedial action taken or proposed to be taken with respect to such use or disclosure.

G. The Business Associate shall make any amendment(s) to Protected Health Information in a designated record set as directed or agreed to by the City pursuant to 45 CFR Part 164.526 or take other measures as necessary to satisfy the City’s obligations under 45 CFR Part 164.526.

H. The Business Associate acknowledges that the additional requirements of the HITECH Act (Health Information Technology for Economic and Clinic Health Act enacted as part of the American Recovery and Reinvestment Act of 2009) and the Final Rule (also known as the Omnibus Rule) issued by the U.S. Department of Health and Human Services on January 25, 2013 are applicable to the Business Associate. The Business Associate further acknowledges restrictions on the sales and marketing of protected health information without the explicit authorization of the individual.

I. To the extent the Business Associate is to carry out one of more of the City’s obligations under Subpart E of 45 C.F.R. Part1 164, the Business Associate will comply with the requirements of Subpart E that apply to the City in the performance of such obligations.

J. The Business Associate may not use or disclose protected health information in a manner that would violate Subpart E of 45 C.F.R. Part 164 if done by the City except for the specific uses and disclosures set forth below:

i. The Business Associate may disclose protected health information for the proper management and administration of the Business Associate or to carry out the legal responsibilities of the Business Associate, provided the disclosures are required by law, or the Business Associate obtains reasonable assurances from the person to whom the information is disclosed that the information remains confidential and used or further disclosed only as required by law or for the purposes for which it was disclosed to the person, and the person notifies the Business Associate of any instances in which it is aware in which the confidentiality of the information has been breached.

ii. The Business Associate may provide data aggregation services related to the health care operations of the City.

5. Duration of this Certification; Procedures upon Expiration.

A. This Certification shall become effective upon signature of an authorized representative of the Business Associate.

B. This Business Associate shall ensure compliance with this Certification for the term on the underlying contract it has with the City, necessitating this Certification.

C. Except as provided in paragraph D, below, upon termination of the underlying contract, the Business Associate shall return or destroy all Personal Health Information received from the City, or created or received by the Business Associate on behalf of the City. This provision shall also apply to Personal Health Information that is in the possession of Agents or Subcontractors of the Business Associate. The Business Associate shall retain no copies of the Personal Health Information.

D. In the event that the Business Associate determines that returning or destroying the Personal Health Information is not feasible, the Business Associate shall provide to the City written notification of the conditions that make return or destruction infeasible. Upon agreement by the City that return, or destruction of Personal Health Information is not feasible, the Business Associate shall extend the protections of this Certification to such Personal Health Information and limit further uses and disclosures of such Personal Health Information to those purposes that make the return or destruction infeasible, for so long as the Business Associate maintains the Personal Health Information. The Business Associate shall continue to use appropriate safeguards and comply with Subpart C of 45 C.F.R. Part 164 with respect to electronic protected health information to prevent use or disclosure of the protected health information, other than as provided for in this Section, for as long as Business Associate retains the protected health information.

E. The Business Associate shall not use or disclosure the protected health information retained by the Business Associate other than for the purposes for which the protected health information was retained and subject to the same conditions set out in this Certification which applied prior to termination of the underlying contract.

F. Survival. The obligations of the Business Associate under this Section shall survive the termination of the underlying contract and the expiration of this Certification.

6. The Business Associate Certifies to Also:

A. Indemnification. The Business Associate shall indemnify and hold harmless the City from and against any and all costs, liabilities, losses, damages, and expenses (including, but not limited to, reasonable attorneys’ fees) resulting from any claim, lawsuit or proceeding brought by a third party against the City and arising from or related to a breach or alleged breach by the Business Associate or the Business Associate’s Agents or Subcontractors of the obligations referenced herein. The Business Associate’s obligation to indemnify shall survive the expiration of this Certification.

B. Remedies for Breach. Without limiting the rights of the parties under paragraph 5, should the Business Associate breach any of its obligations of this Certification, the City may at its option: (i) exercise its rights of access and inspection under paragraph 2, above; and/or (ii) report the breach to the Secretary of the United States Department of Health and Human Services.

C. Notices. Any notice required or provided for under this Certification shall be effective upon delivery via regular or electronic mail to the following addresses:

City of Austin, Austin Financial Services Central Procurement 505 Barton Springs Road, Ste 330, Austin, TX 78704

D. Amendments. Upon the enactment of any law or regulation affecting the use or disclosure of protected health information, or the publication of any decision of a court of the United State or State of Texas relating to any such law, or the publication of any interpretive policy or opinion of any governmental agency charged with the enforcement of any such law or regulation, the City may, by written notice to the Business Associate, require an updated Certification in such a manner as the City determines necessary to comply with such law or regulation. Notwithstanding the foregoing, if the City has not required an updated Certification to address a law or final regulation that becomes effective after the effective date of this Certification and that is applicable to this Certification, then upon the effective date of such law or regulation (or any portion thereof) this Certification shall be amended automatically and deemed to incorporate such new or revised provisions as are necessary for this Certification to be consistent with such law or regulation for the City and the Business Associate to be and remain in compliance with all applicable laws and regulations.

E. Construction of Terms. A reference in this Certification to a section in the HIPAA Rules means the section in effect or as amended at the time of signature by the Business Associate. Any ambiguity in this Certification shall be interpreted to permit compliance with the HIPAA Rules.

The Business Associate certifies that all of the above is true and shall be complied with during the term of the underlying contract and as required to survive, as stated above:

THE BUSINESS ASSOCIATE:

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