09-01-2020 - AGENDA ITEM 04 CONSIDERATION OF PROFESSIONAL SERVICES AGREEMENT BETWEEN WITTMAN ENTERPRISES, LLC AND THE CITY OF WEST COVINA FOR AMBULANCE BILLING SERVICES12/1 /2020
Print Staff Report
AGENDA ITEM NO. 4
DATE: September 1, 2020
TO: Mayor and City Council
FROM: David Carmany
City Manager
AGENDA STAFF REPORT
City of West Covina I Office of the City Manager
SUBJECT: CONSIDERATION OF PROFESSIONAL SERVICES AGREEMENT BETWEEN
WITTMAN ENTERPRISES, LLC AND THE CITY OF WEST COVINA FOR
AMBULANCE BILLING SERVICES
RECOMMENDATION:
It is recommended that the City Council:
1. Approve, by a majority vote of the entire City Council, dispensing with formal bidding procedures and
requirements in connection with the procurement of ambulance billing services by finding that it would
be impracticable and uneconomical to comply with such requirements and it would promote the public
interest to dispense with such requirements, in accordance with the requirements of Section 2-330(b) of
the West Covina Municipal Code.
2. Authorize the City Manager to negotiate and execute a Professional Services Agreement with Wittman
Enterprises, LLC for ambulance billing services.
3. Authorize the City Manager to negotiate and execute a Business Associate Agreement with Wittman
Enterprises, LLC.
4. Authorize the City Manager to negotiate and execute any other documents necessary in connection with
the ambulance billing services.
BACKGROUND:
Wittman Enterprises, LLC ("Wittman") has been the ambulance billing services vendor for the City since
2005. In 2015, a Request for Proposal ("RFP") was issued for Ambulance Billing Services. The results of the
RFP determined that Wittman was still the ideal vendor for the needs of the City. In August 2015, the City
entered into a three-year agreement with two one-year extension options. Pursuant to the provisions of the
prior Professional Services Agreement with Wittman, Wittman received and paid the annual invoice from
Digital EMS Solutions ("Digital EMS") for Electronic Patient Care Reporting ("ePCR").
DISCUSSION:
The Fire Department is requesting to continue its relationship with Wittman for ambulance billing
services. Wittman has been a trusted and valued partner with the City since 2005. After ten years of partnership
with Wittman, the City Council requested the Fire Department to evaluate its ambulance billing services and
the Fire Department issued a RFP in 2015. Following the RFP, the City Council awarded a three-year
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(d) Waiver of Subrogation: Consultant hereby grants to City a waiver of any
right to subrogation which any insurer of said Consultant may acquire
against the City by virtue of the payment of any loss under such insurance.
Consultant agrees to obtain any endorsement that may be necessary to
affect this waiver of subrogation, but this provision applies regardless of
whether or not the City has received a waiver of subrogation endorsement
from the insurer.
(a) Coverage Not Affected: Any failure to comply with the reporting provisions
of the policies shall not affect coverage provided to the City of West Covina,
its officers, officials, agents, employees, and volunteers.
(f) Coverage Applies Separately: The Consultant's insurance shall apply
separately to each insured against whom claim is made or suit is brought,
except with respect to the limits of the insurer's liability.
5.3. Deductible or Self Insured Retention. If any of such policies provide for a
deductible or self -insured retention to provide such coverage, the amount of such deductible or
self -insured retention shall be approved in advance by City. The City may require the Consultant
to purchase coverage with a lower retention or provide proof of ability to pay losses and related
investigations, claim administration, and defense expenses within the retention. The policy
language shall provide, or be endorsed to provide, that the self -insured retention may be satisfied
by either the named insured or City.
5.4. Certificates of Insurance. Consultant shall provide to City certificates of insurance
showing the insurance coverages and required endorsements described above, in a form and
content approved by City, prior to performing any services under this Agreement. The City
reserves the right to require complete, certified copies of all required insurance policies, including
endorsements required by these specifications, at any time.
5.5. Non -limiting. Nothing in this Section shall be construed as limiting in any way the
indemnification provision contained in this Agreement.
6.0. GENERAL PROVISIONS
6.1. Entire Agreement. This Agreement constitutes the entire agreement between the
parties with respect to any matter referenced herein and supersedes any and all other prior
writings and oral negotiations. This Agreement may be modified only in writing, and signed by the
parties in interest at the time of such modification.
6.2. Representatives. The City Manager or his or her designee shall be the
representative of City for purposes of this Agreement and may issue all consents, approvals,
directives and agreements on behalf of the City, called for by this Agreement, except as otherwise
expressly provided in this Agreement.
Consultant shall designate a representative for purposes of this Agreement who
shall be authorized to issue all consents, approvals, directives and agreements on behalf of
Consultant called for by this Agreement, except as otherwise expressly provided in this
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Wittman Enterprises, LLC
Form Revised April 2020
Agreement.
6.3. Key Personnel. It is the intent of both parties to this Agreement that Consultant
shall make available the professional services of Judy Vang, Client Liaison, who shall coordinate
directly with City. Any substitution of key personnel must be approved in advance in writing by
City's Representative.
6.4. Notices. Any notices, documents, correspondence or other communications
concerning this Agreement or the work hereunder may be provided by personal delivery,
facsimile, Email or by U.S. mail. If by U.S. mail, it shall be addressed as set forth below and placed
in a sealed envelope, postage prepaid, and deposited in the United States Postal Service. Such
communication shall be deemed served or delivered: a) at the time of delivery if such
communication is sent by personal delivery; b) at the time of transmission if such communication
is sent by facsimile or by Email; and c) 72 hours after deposit in the U.S. Mail as reflected by the
official U.S. postmark if such communication is sent through regular United States mail.
IF TO CONSULTANT: IF TO CITY:
Wittman Enterprises, LLC
City of West Covina
11093 Sun Center Drive
1444 West Garvey Ave. South
Rancho Cordova, CA 95670
West Covina, CA 91790
Tel: (916) 669-4608
Tel: (626) 939-8463
Fax: (916) 471-5108
Fax: (626) 939-8664
Email: cwittmanwong@webillems.com
Email: rbird@westcovina.org
Attn: Corinne Wittman -Wong
Attn: Robbeyn Bird, Finance Director
6.5. Attorneys' Fees. If litigation is brought by any party in connection with this
Agreement against another party, the prevailing party shall be entitled to recover from the
opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the
prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of
any of the terms, conditions, or provisions hereof.
6.6. Governing Law. This Agreement shall be governed by and construed under the
laws of the State of California without giving effect to that body of laws pertaining to conflict of
laws. In the event of any legal action to enforce or interpret this Agreement, the parties hereto
agree that the sole and exclusive venue shall be a court of competent jurisdiction located in Los
Angeles County, California.
6.7. Assignment. Consultant shall not voluntarily or by operation of law assign,
transfer, sublet or encumber all or any part of Consultant's interest in this Agreement without
City's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall
be void and shall constitute a breach of this Agreement and cause for termination of this
Agreement. Regardless of City's consent, no subletting or assignment shall release Consultant
of Consultant's obligation to perform all other obligations to be performed by Consultant
hereunder for the term of this Agreement.
6.8. Indemnification and Hold Harmless. Consultant agrees to defend, with counsel
agreed upon by City and Consultant, indemnify, and hold free and harmless the City, its elected
Wittman Enterprises, LLC
Form Revised April 2020
officials, officers, agents and employees, at Consultant's sole expense, from and against any and
all claims, actions, suits or other legal proceedings brought against the City, its elected officials,
officers, agents and employees arising out of or in connection with Consultant's, or Consultant's
employees', agents', or subcontractors' performance of this Agreement. Notwithstanding the
foregoing, the Consultant shall not be liable for the defense or indemnification of the City for
claims, actions, complaints or suits arising out of the sole active negligence or willful misconduct
of the City. This provision shall supersede and replace all other indemnity provisions contained
either in the City's specifications, which shall be of no force and effect.
6.9. Independent Contractor. Consultant is and shall be acting at all times as an
independent contractor and not as an employee of City. Consultant shall have no power to incur
any debt, obligation, or liability on behalf of City or otherwise act on behalf of City as an agent.
Neither City nor any of its agents shall have control over the conduct of Consultant or any of
Consultant's employees, except as set forth in this Agreement. Consultant shall not, at any time,
or in any manner, represent that it or any of its or employees are in any manner agents or
employees of City. Consultant shall secure, at its sole expense, and be responsible for any and
all payment of Income Tax, Social Security, State Disability Insurance Compensation,
Unemployment Compensation, and other payroll deductions for Consultant and its officers,
agents, and employees, and all business licenses, if any are required, in connection with the
services to be performed hereunder. Consultant shall indemnify and hold City harmless from any
and all taxes, assessments, penalties, and interest asserted against City by reason of the
independent contractor relationship created by this Agreement. Consultant further agrees to
indemnify and hold City harmless from any failure of Consultant to comply with the applicable
worker's compensation laws. City shall have the right to offset against the amount of any fees due
to Consultant under this Agreement any amount due to City from Consultant as a result of
Consultant's failure to promptly pay to City any reimbursement or indemnification arising under
this paragraph.
6.10. PERS Eligibility Indemnification. In the event that Consultant or any employee,
agent, or subcontractor of Consultant providing services under this Agreement claims or is
determined by a court of competent jurisdiction or the California Public Employees Retirement
System (PERS) to be eligible for enrollment in PERS as an employee of the City, Consultant shall
indemnify, defend, and hold harmless City for the payment of any employee and/or employer
contributions for PERS benefits on behalf of Consultant or its employees, agents, or
subcontractors, as well as for the payment of any penalties and interest on such contributions,
which would otherwise be the responsibility of City.
Notwithstanding any other agency, state or federal policy, rule, regulation, law or
ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors
providing service under this Agreement shall not qualify for or become entitled to, and hereby
agree to waive any claims to, any compensation, benefit, or any incident of employment by City,
including but not limited to eligibility to enroll in PERS as an employee of City and entitlement to
any contribution to be paid by City for employer contribution and/or employee contributions for
PERS benefits.
6.11. Cooperation. In the event any claim or action is brought against City relating to
Consultant's performance or services rendered under this Agreement, Consultant shall render
any reasonable assistance and cooperation which City might require.
Wittman Enterprises, LLC
Form Revised April 2020
6.12. Ownership of Documents. All findings, reports, documents, information and data
including, but not limited to, computer tapes or discs, files and tapes furnished or prepared by
Consultant or any of its subcontractors in the course of performance of this Agreement, shall be
and remain the sole property of City. Consultant agrees that any such documents or information
shall not be made available to any individual or organization without the prior consent of City. Any
use of such documents for other projects not contemplated by this Agreement, and any use of
incomplete documents, shall be at the sole risk of City and without liability or legal exposure to
Consultant. City shall indemnify and hold harmless Consultant from all claims, damages, losses,
and expenses, including attorneys' fees, arising out of or resulting from City's use of such
documents for other projects not contemplated by this Agreement or use of incomplete documents
furnished by Consultant. Consultant shall deliver to City any findings, reports, documents,
information, data, in any form, including but not limited to, computer tapes, discs, files audio tapes
or any other related items as requested by City or its authorized representative, at no additional
cost to the City. Consultant or Consultant's agents shall execute such documents as may be
necessary from time to time to confirm City's ownership of the copyright in such documents.
6.13. Electronic Safeguards. Consultant shall identify reasonably foreseeable internal
and external risks to the privacy and security of personal information that could result in the
unauthorized disclosure, misuse, alteration, destruction or other compromise of the information.
Contractor shall regularly assess the sufficiency of any safeguards and information security
awareness training in place to control reasonably foreseeable internal and external risks, and
evaluate and adjust those safeguards in light of the assessment.
6.14. Economic Interest Statement. Consultant hereby acknowledges that pursuant to
Government Code Section 87300 and the Conflict of Interest Code adopted by City, Consultant
is designated in said Conflict of Interest Code and is therefore required to file an Economic Interest
Statement (Form 700) with the City Clerk, for each employee providing advice under this
Agreement, prior to the commencement of work, unless waived by the City Manager.
6.15. Conflict of Interest. Consultant and its officers, employees, associates and
subconsultants, if any, will comply with all conflict of interest statutes of the State of California
applicable to Consultant's services under this agreement, including, but not limited to, the Political
Reform Act of 1974 (Government Code Section 81000, et seq.) and Government Code Sections
1090-1092. Consultant covenants that none of Consultant's officers or principals have any interest
in, or shall acquire any interest, directly or indirectly, which will conflict in any manner or degree
with the performance of the services hereunder, including in any manner in violation of the Political
Reform Act. Consultant further covenants that in the performance of this Agreement, no person
having such interest shall be used by Consultant as an officer, employee, agent, or subconsultant.
Consultant further covenants that Consultant has not contracted with nor is performing any
services, directly or indirectly, with any developer(s) and/or property owner(s) and/or firm(s)
and/or partnership(s) owning property in the City and further covenants and agrees that
Consultant and/or its subconsultants shall provide no service or enter into any agreement or
agreements with a/any developer(s) and/or property owner(s) and/or firm(s) and/or partnership(s)
owning property in the City prior to the completion of the work under this Agreement.
6.16. Prohibited Employment. Consultant will not employ any regular employee of City
while this Agreement is in effect.
6.17. Order of Precedence. In the event of an inconsistency in this Agreement and any
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Form Revised April 2020
of the attached Exhibits, the terms set forth in this Agreement shall prevail. If, and to the extent
this Agreement incorporates by reference any provision of any document, such provision shall be
deemed a part of this Agreement. Nevertheless, if there is any conflict among the terms and
conditions of this Agreement and those of any such provision or provisions so incorporated by
reference, this Agreement shall govern over the document referenced.
6.18. Costs. Each party shall bear its own costs and fees incurred in the preparation
and negotiation of this Agreement and in the performance of its obligations hereunder except as
expressly provided herein.
6.19. No Third Party Beneficiary Rights. This Agreement is entered into for the sole
benefit of City and Consultant and no other parties are intended to be direct or incidental
beneficiaries of this Agreement and no third party shall have any right in, under or to this
Agreement.
6.20. Headings. Paragraphs and subparagraph headings contained in this Agreement
are included solely for convenience and are not intended to modify, explain or to be a full or
accurate description of the content thereof and shall not in any way affect the meaning or
interpretation of this Agreement.
6.21. Amendments. Only a writing executed by the parties hereto or their respective
successors and assigns may amend this Agreement.
6.22. Waiver. The delay or failure of either party at any time to require performance or
compliance by the other of any of its obligations or agreements shall in no way be deemed a
waiver of those rights to require such performance or compliance. No waiver of any provision of
this Agreement shall be effective unless in writing and signed by a duly authorized representative
of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy
in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in
respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver.
6.23. Severability. If any provision of this Agreement is determined by a court of
competent jurisdiction to be unenforceable in any circumstance, such determination shall not
affect the validity or enforceability of the remaining terms and provisions hereof or of the offending
provision in any other circumstance. Notwithstanding the foregoing, if the value of this Agreement,
based upon the substantial benefit of the bargain for any party, is materially impaired, which
determination made by the presiding court or arbitrator of competent jurisdiction shall be binding,
then both parties agree to substitute such provision(s) through good faith negotiations.
6.24. Counterparts and Electronic Signatures. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original. All counterparts shall be
construed together and shall constitute one agreement. Counterpart written signatures may be
transmitted by facsimile, email or other electronic means and have the same legal effect as if they
were original signatures.
6.25. Corporate Authority. The persons executing this Agreement on behalf of the
parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said
parties and that by doing so the parties hereto are formally bound to the provisions of this
Agreement.
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6.26 Taxpayer Identification Number. Consultant shall provide City with a complete
Request for Taxpayer Identification Number and Certification, Form W9, as issued by the Internal
Revenue Service.
[SIGNATURE PAGE FOLLOWS.]
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Form Revised April 2020
Wittman Enterprises, LLC
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by and through their respective authorized officers, as of the date first above written.
CITY OF WEST COVINA,
A municipal corporation
Date:
David Carmany
City Manager
CONSULTANT
Date:
Corinne Wittman -Wong
CEO
ATTEST:
Lisa Sherrick
Assistant City Clerk
APPROVED AS TO FORM:
Date:
Thomas P. Duarte
City Attorney
APPROVED AS TO INSURANCE:
Date:
Helen Tran
Human Resources and Risk Management
Director
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Form Revised April 2020
Wittman Enterprises, LLC
EXHIBIT A
SCOPE OF SERVICES
AMBULANCE BILLING SERVICES
I. Private Billing
Wittman Enterprises, LLC to prepare all invoices and follow-up mailings. Initial invoicing with both
English and Spanish instructions will be on 8 X 11 billings and will be placed in envelopes, sealed
and mailed postage prepaid. Initial invoicing occurs within three (3) days of receipt of transport
tickets. Toll -Free number provided to patients. An initial telephone call will also be made at this
time to elicit any insurance information from the patient or patient's family. If we receive no answer
on this call, Wittman will send an inquiry letter in addition to the initial invoice. The standard bill
schedule is as follows:
Private Bill Schedule
1. Invoice Immediately
2. Statement 30 days
3. Past Due 20 days
4. Final Demand 10 days
II. Medicare, Medi-Cal, Medi-Medi
Wittman Enterprises, LLC to prepare all invoices and electronically convey to Medicare and Medi-
Cal fiscal intermediaries.
All secondary and coinsurance billing transferred to the appropriate secondary pay source and
promptly billed to that source.
III. Workers' Compensation and Private Insurance
Wittman Enterprises, LLC to bill private insurance, supplemental insurance, secondary insurance
and Workers' Compensation, billed according to specific requirements. Electronic billing of
insurance companies is performed where appropriate. Any correspondence for additional
information or follow-up necessary to secure insurance payments will be performed by Wittman
Enterprises, LLC.
IV. Delinauent Claim Handlin
Patients with claims aging over 45 days will be contacted by telephone for payment arrangements.
Telephone follow-up will continue until payment in full is received or account is dismissed by the
City to any outside collection agency. Wittman Enterprises, LLC will utilize installment billing as
allowed by the City in cases of financial hardship.
V. Receipts Processing
Wittman Enterprises, LLC will receive direct payment, posting and depositing cash receipts within
one (1) day of receipt. Bank deposit receipt will be faxed or emailed to the City. Wittman
Enterprises, LLC shall have no access to the proceeds of the receipts. All funds are under the
exclusive control of the City of West Covina.
VI. Reports
Monthly, Wittman Enterprises, LLC will perform accurate month -end close procedures that will
result in the following reports:
Monthly Ticket Survey
Monthly Sales Journal
Monthly Cash Receipts Journal
Monthly Receivables Aging
Management A/R Analysis
Statistical Reports customized to City's needs
VII. Provider Responsibilities
• Submit necessary transport information, including pay source information and patient
condition, to Wittman Enterprises, LLC for billing purposes.
• Forward to Wittman Enterprises, LLC all necessary information relating to patient transports
services, payments and patient eligibility.
• Notify Wittman Enterprises, LLC of any accounts that require special attention.
• Obtain signature of patient or guardian.
• Provide patient's Social Security Number
Vill. Source Documents
Wittman Enterprises, LLC will retain all source documents including attachments for six (6) years.
When service contract is terminated, all source documents are returned to City at the City's
expense.
IX. ePCR
Wittman Enterprises, LLC will provide Electronic Patient Care Report services with the Digital
EMS system already in use by City.
X. Customer Survey
Wittman Enterprises, LLC will provide a Customer Satisfaction Survey Program.
XI. Ambulance Subscription Program
1. Wittman Enterprises, LLC will provide Ambulance Subscription Program Management
Services through to the end of the Agreement. The Scope of work for said services are as
follows:
a. Wittman Enterprises, LLC shall provide an online web portal that will accept new
applications and renewals. The web portal should accept online payment via credit
card.
2. Wittman Enterprises, LLC shall provide a toll -free number to answer questions about the
program. Wittman Enterprises, LLC will accept new applications and renewals along with
payment via credit card. Wittman Enterprises, LLC will provide the mailing address for
checks.
3. Wittman Enterprises, LLC shall provide a mailing address when payments (new
registrations and renewals) will be accepted and processed by the Wittman Enterprises,
LLC.
4. Posting payments via credit card and check. Credit cards will be processed using City's
gateway network and merchant number. Checks to be deposited into City bank account.
5. Wittman Enterprises, LLC shall mail renewal forms to existing members and cover the
cost of postage and processing.
6. Wittman Enterprises, LLC shall provide access to an online portal to provide monthly
reporting.
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Print Staff Report
agreement to Wittman, which had two one-year extension options. Under the prior agreement, Wittman
charged the City 5% of net collections for providing services. Staff is proposing to enter into a new agreement
with Wittman for ambulance services billing, retroactively effective to August 1, 2020, for a term of five (5)
years. Under the new agreement, Wittman will charge the City 3.9% of net collections for providing services.
Section 2-330(b) of the West Covina Municipal Code states that the City Council, by a majority vote of the
entire City Council, may dispense with the formal bidding procedures and requirements of Division 2
(Purchasing System) of Article VII (Purchases and Sales) of Chapter 2 (Administration) of the West Covina
Municipal Code upon a finding that "it would be impracticable, useless or uneconomical ... to follow such
procedures and ... the public welfare would be promoted by dispensing with the same." Staff believes it would
be uneconomical and impracticable and would not promote the public welfare to follow formal bidding
requirements in connection with the procurement of these services. Given that the contract with Wittman has
expired, a formal solicitation is impracticable, as it would take a few months and cause a lapse in the
ambulance billing services. Such lapse would also not promote the public welfare. Further, Wittman has agreed
to lower the net collections cost of their service from 5.0% to 3.9% net collections. As such, staff believes it
would be uneconomical to formally bid these services, as another company is not likely to provide a better
rate. Based on the foregoing, staff is recommending that the City Council, by a majority vote of the entire City
Council, approve dispensing with formal bidding requirements and procedures in connection with the
procurement of ambulance billing services by finding that it would be impracticable and uneconomical to
comply with such requirements and the public welfare would be promoted by dispensing with such
requirements for the ambulance billing services.
Revenues for ambulance services provided by Wittman are remitted to the City through two methods. Method
one is direct payment to Wittman on behalf of the City. The second method is direct deposit for patients
eligible for Medi-Care and or Medi-Cal. Wittman remits revenues they receive to the City as a pass -through
and then invoices the City for the cost of services.
Fiscal Year
Rate
evenue to City
ost for service to Wittman
iscal Year 2017/2018
5.0%
,446,101.86
2129,110.84
Fiscal Year 2018/2019
5.0%
,268,802.27
[$$112111,,600,
$148,844.37
Fiscal Year 2019/2020
.5%
,650,362.86*
$119,266.32*
Fiscal Year 2020/2021
3.9%
000.00**
$101,400.00**
*as of 06/O1/2020
**Estimated
The Fire Department is required to have an Electronic Patient Care Reporting System ("ePCR") as mandated
by Los Angeles County Department of Health Services provider agency mandates. The City uses Digital EMS
as our ePCR vendor. As such the City has a Business Associate Agreement that outlines practices related to
protected health information in place with Digital EMS. The cost for Digital EMS is invoiced to Wittman and
paid at a rate of $4.25 per Emergency Medical response upload and $0.10 per hospital report fax. The invoice
is generated from an estimate of the anticipated uploads in each upcoming fiscal year. Digital EMS issues a
refund to the next year's invoice if the number of uploads falls short of the estimate. If the number of uploads
exceeds the estimate, Digital EMS will add the cost to the next year's invoice. Staff is recommending that the
partnership with Digital EMS continue, as Digital EMS is the City's current ePCR provider and Digital EMS is
paid through invoicing with Wittman.
LEGAL REVIEW:
The City Attorney's Office has reviewed the agreements and approved them as to form.
OPTIONS:
The City Council has the following options:
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EXHIBIT B
FEE SCHEDULE
AMBULANCE BILLING SERVICES
Fees
A. Percentage of Net Collections 3.90% of net collected revenue
B. Monthly Reports Included
Net Collections are the dollars eligible for collection after adjusting for Medicare and Medi-Cal
write downs. "Collected Revenue" is the net dollars collected minus any refunds or payor
adjustments. Billing services are offered for a percentage of collected revenue as agreed upon
by the two parties as indicated above.
Fees for ePCR Service
On behalf of City, Wittman Enterprises, LLC will purchase the electronic patient care program
annually for the term of the agreement for the sum invoiced by Digital EMS, currently at the rate
of $4.25 plus $.10 for faxing. Digital EMS estimates the number of Uploads each year. Should the
number of incidents Uploads be less than the estimated number, Wittman Enterprises, LLC will
obtain a refund of the unused Incident Uploads from Digital EMS and tender same to City. Wittman
Enterprises, LLC will pass through pre -paid Digital EMS ePCR costs to the City for payment as
part of regular monthly invoices.
III. Fees for Customer Survey
City will pay one dollar and twenty-five cents ($1.25) per Survey prepared by Wittman Enterprises,
LLC under the Customer Satisfaction Survey Program.
IV. Fees for Ambulance Subscriotion Proaram Service
Wittman Enterprises, LLC shall be compensated for the Ambulance Subscription Program
Management Services with a fee based on the number of subscribers billed per month as follows:
0-1000 subscribers billed, the fee is $12.00 per subscriber; 1001-2000 subscribers billed, the fee
is $11.50 per subscriber; and 2001 and over, subscribers billed, the fee is $10.50 per subscriber.
ATTACHMENT NO. 2
BUSINESS ASSOCIATE AGREEMENT
FOR
CITY OF WEST COVINA PROFESSIONAL SERVICES AGREEMENT
WITH
WITTMAN ENTERPRISES, LLC
This Business Associate Agreement ("Agreement') between the City of West Covina
(Covered Entity) and Wittman Enterprises, LLC (Business Associate) is executed to ensure that
Wittman Enterprises, LLC will appropriately safeguard protected health information ("PHI') that is
created, received, maintained, or transmitted on behalf of the City of West Covina in compliance
with the applicable provisions of Public Law 104-191 of August 21, 1996, known as the Health
Insurance Portability and Accountability Act of 1996, Subtitle F — Administrative Simplification,
Sections 261, et seq., as amended ("HIPAA"), and with Public Law 111-5 of February 17, 2009,
known as the American Recovery and Reinvestment Act of 2009, Title XII, Subtitle D — Privacy,
Sections 13400, et seq., the Health Information Technology and Clinical Health Act, as amended
(the"HIfECH Act').
A. General Provisions
1. Meaning of Terms. The terms used in this Agreement shall have the same meaning as
those terms defined in HIPAA.
2. Regulatory References. Any reference in this Agreement to a regulatory section
means the section currently in effect or as amended.
3. Interpretation. Any ambiguity in this Agreement shall be interpreted to permit
compliance with HIPAA.
B. Obligations of Business Associate
Wittman Enterprises, LLC agrees that it will:
1. Not use or further disclose PHI other than as permitted or required by this Agreement or
as required by law;
2. Use appropriate safeguards and comply, where applicable, with the HIPAA Security Rule
with respect to electronic protected health information ("e-PHI') and implement
appropriate physical, technical and administrative safeguards to prevent use or
disclosure of PHI other than as provided for by this Agreement;
3. Report to the City of West Covina any use or disclosure of PHI not provided for by this
Agreement of which it becomes aware, including any security incident (as defined in the
HIPAA Security Rule) and any breaches of unsecured PHI as required by 45 CFR
§164.410. Breaches of unsecured PHI shall be reported to the Citywithout unreasonable
delay but in no case later than 60 days after discovery of the breach;
4. In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), ensure that any
subcontractors that create, receive, maintain, or transmit PHI on behalf of Wittman
Enterprises, LLC agree to the same restrictions, conditions, and requirements that apply
to Wittman Enterprises, LLC with respect to such information;
ATTACHMENT NO.2
5. Make PHI in a designated record set available to the City of West Covina and to an
individual who has a right of access in a manner that satisfies City's obligations to provide
access to PHI in accordance with 45 CFR §164.524 within 30 days of a request;
6. Make any amendment(s) to PHI in a designated record set as directed by the City of
West Covina, or take other measures necessary to satisfy City's obligations under 45
CFR §164.526;
7. Maintain and make available information required to provide an accounting of
disclosures to the City of West Covina or an individual who has a right to an accounting
within 60 days and as necessary to satisfy City's obligations under 45 CFR §164.528;
8. To the extent that Wittman Enterprises, LLC is to carryout any of City's obligations under
the HIPAA Privacy Rule, Wittman Enterprises, LLC shall comply with the requirements
of the Privacy Rule that apply to the City of West Covina when it carries out that
obligation;
9. Make its internal practices, books, and records relating to the use and disclosure of PHI
received from, or created or received by Wittman Enterprises, LLC on behalf of the City of
West Covina, available to the Secretary of the Department of Health and Human Services
for purposes of determining Wittman Enterprises, LLC and the City's compliancewith HIPAA
and the HITECH Act;
10. Restrict the use or disclosure of PHI if the City of West Covina notifies Wittman
Enterprises, LLC of any restriction on the use or disclosure of PHI that the City has
agreed to or is required to abide by under 45 CFR §164.522; and
11. If the City of West Covina is subject to the Red Flags Rule (found at 16 CFR §681.1 et
seq.), Wittman Enterprises, LLC agrees to assistthe City in complying with its Red Flags
Rule obligations by: (a) implementing policies and procedures to detect relevant Red
Flags (as defined under 16 C.F.R. §681.2); (b) taking all steps necessary to comply with
the policies and procedures of the City's Identity Theft Prevention Program; (c) ensuring
that any agent or third party who performs services on its behalf in connection with
covered accounts of West Covina agrees to implement reasonable policies and
procedures designed to detect, prevent, and mitigate the risk of identity theft; and (d)
alerting the City of West Covina of any Red Flag incident (as defined by the Red Flag
Rules) of which it becomes aware, the steps it has taken to mitigate any potential harm
that may have occurred, and provide a report to the City of any threat of identity theft as
a result of the incident.
C. Permitted Uses and Disclosures by Business Associate
The specific uses and disclosures of PHI that may be made by Wittman Enterprises, LLC on
behalf of the City of West Covina include:
1. The preparation of invoices to patients, carriers, insurers and others responsible for
payment or reimbursement of the services provided by the City to its patients;
2. Preparation of reminder notices and documents pertaining to collections of overdue
accounts;
ATTACHMENT NO.2
3. The submission of supporting documentation to carriers, insurers and other payers to
substantiate the healthcare services provided by the City to its patients or to appeal
denials of payment for the same; and
4. Other uses or disclosures of PHI as permitted by HIPAA necessary to perform the
services that Wittman Enterprises, LLC has been engaged to perform on behalf of the
City of West Covina.
D. Termination
1. The City of West Covina may terminate this Agreement if the City determines that
Wittman Enterprises, LLC has violated a material term of the Agreement.
2. If either party knows of a pattern of activity or practice of the other party that constitutes
a material breach or violation of the other party's obligations under this Agreement, that
party shall take reasonable steps to cure the breach or end the violation, as applicable,
and, if such steps are unsuccessful, terminate the Agreement if feasible.
3. Upon termination of this Agreement for any reason, Wittman Enterprises, LLC shall
return to the City of West Covina or destroy all PHI received from the City, or created,
maintained, or received by Wittman Enterprises, LLC on behalf of the City that Wittman
Enterprises, LLC still maintains in any form. Wittman Enterprises, LLC shall retain no
copies of the PHI. If return or destruction is infeasible, the protections of this Agreement
will extend to such PHI.
Agreed to as of the 1 st day of August, 2020
Covered Entity Business Associate
The City of West Covina Wittman Enterprises, LLC
David Carmany, City Manager Corinne Wittman -Wong, CEO
Name and Title Name and Title
Signature
Signature
Date: Date:
Digital EMS Subscription Agreement
DigitaIEMS
BUSINESS ASSOCIATE AGREEMENT
1 BUSINESS ASSOCIATE AGREEMENT
This business associate Agreement ("Agreement"), effective as of Activation Date, is entered into by and between
Digital EMS ("Business Associate") and City of West Covina (the "Covered Entity").
1.1. DEFINITIONS
1.1.1. Business Associate. "Business Associate" shall mean Digital EMS.
1.1.2. Covered Entity. "Covered Entity" shall mean Customer.
1.1.3. Individual. "Individual" shall have the same meaning as the term "individual" in 45 CFR+ 160.103
and shall include a person who qualifies as a personal representative in accordance with 45 CFR +
164.502(g).
1.1.4. Privacy Rule. "Privacy Rule" shall mean the Standards for Privacy of Individually Identifiable
Health Information at 45 CFR Part 160 and Part 164, Subparts A and E.
1.1.5. Protected Health Information. "Protected Health Information" shall have the same meaning as the
term "protected health information" in 45 CFR + 160.103, limited to the information created or
received by Business Associate from or on behalf of Covered Entity.
1.1.6. R5e uired B Law. "Required By Law" shall have the same meaning as the term "required by Jaw" in
4CFR 3.
1.1.7. Secretary. "Secretary" shall mean the Secretary ofthe Department of Health and Human Services or
his designee.
1.2. OBLIGATIONS AND ACTIVITIES OF BUSINESS ASSOCIATE
1.2.1.
1.2.2.
1.2.3.
1.2.4.
1.2.5.
1,2.6,
Business Associate Agreement
City of West Covina Pagt> 1 of i
Fire Department
Business Associate agrees to not use or disclose Protected Health Information other than as
permitted or required by the Agreement or as Required By Law.
Business Associate agrees to use appropriate safeguards, and comply with Subpart C of 45 CFR Part
164 with respect to electronic PHI, to prevent use or disclosure of PHI other than as provided for by
the Agreement.
Business Associate agrees to report to Covered Entity any use or disclosure of PHI not provided for
by the Agreement ofwhich it becomes aware, including breaches ofunsecured PHI as required at 45
CFR 164.410, and any security incident of which it becomes aware.
Business Associate agrees to ensure that in accordance with 45 CFR 164.502(e)(1)(ii) and
164.308(b)(2), if applicable, ensure that any subcontractors that create, receive, maintain, or
transmit PHI on behalf of Business Associate agree to the same restrictions, conditions, and
requirements that apply to Business Associate with respect to such information.
Business Associate agrees to make available PHI in a designated record set to Covered Entity as
necessary to satisfy Covered Entity's obligations under 45 CFR 164.524
Business Associate agrees to make any amendment(s) to PHI in a designated record set as directed
or agreed to by Covered Entity pursuant to 45 CFR 164.526, or take other measures as necessary to
satisfy Covered Entity's obligations under 45 CFR 164.526
I
1.2.7. Business Associate agrees to maintain and make available the information required to provide an
accounting of disclosures to Covered Entity as necessary to satisfy Covered Entity's obligations
under 45 CFR 164.528
1.2.8. Business Associate agrees to the extent Business Associate is to carry out one or more of Covered
Entity's obligation(s) under Subpart E of 45 CFR Part 164, comply with the requirements of Subpart
E that apply to Covered Entity in the performance of such obligation(s); and
1.2.9. Business Associate agrees to make its internal practices, books, and records available to the
Secretary for purposes of determining compliance with the HIPAA Rules.
1.3. PERMITTED USES AND DISCLOSURES BY BUSINESS ASSOCIATE
1.3.1. Business Associate may only use or disclose PHI only as permitted or required by this Agreement or
as required by law
1.3.2. Business Associate may use or disclose PHI as required by law.
1.3.3. Business Associate agrees to make uses and disclosures and requests PHI consistent with Covered
Entity's minimum necessary policies and procedures.
1.3.4. Business Associate may not use or disclose PHI in a manner that would violate Subpart E of 45 CFR
Part 164 if done by Covered Entity, except for the specific uses and disclosures set forth below.
1.3.5. Business Associate may use PHI for the proper management and administration of Business
Associate or to carry out the legal responsibilities of Business Associate.
1.3.6. Business Associate may disclose PHI for the proper management and administration of Business
Associate or to carry out the legal responsibilities of Business Associate, provided the disclosures
are required by law, or Business Associate obtains reasonable assurances from the person to whom
the information is disclosed that the information will remain 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 Business Associate of any instances of which it is aware in which the
confidentiality of the information has been breached.
1.3.7. Business Associate may provide data aggregation services relating to the health care operations of
the Covered Entity.
1.4. OBLIGATIONS OF COVERED ENTITY
1.4.1. Covered Entity shall notify Business Associate of any limitation(s) in the notice of privacy practices
of Covered Entity under 45 CFR 164.520, to the extent that such limitation may affect Business
Associate's use or disclosure of PHI.
1.4.2. Covered Entity shall notify Business Associate of any changes in, or revocation of, the permission by
an individual to use or disclose his or her PHI, to the extent that such changes may affect Business
Associate's use or disclosure of PHI.
1.4.3. Covered Entity shall notify Business Associate of any restriction on the use or disclosure of PHI that
Covered Entity has agreed to or is required to abide by under 45 CFR 164.522, to the extent that
such restriction may affect Business Associate's use or disclosure of PHI.
1.5. PERMISSIBLE REQUESTS BY COVERED ENTITY
Covered entity shall not request business associate to use or disclose protected health information in any
manner that would not be permissible under Subpart E of 45 CFR Part 164 if done by covered entity. An
exception is if the Business Associate will use or disclose protected health information for, data
aggregation or management and administrative activities of Business Associate.
1,6, TERM AND TERMINATION
1.6.1. Term. The Term of this Agreement shall be effective as of Activation Date, and shall terminate
when all of the Protected Health Information provided by Covered Entity to Business Associate, or
created or received by Business Associate on behalf of Covered Entity, is destroyed or returned to
Business Associate Agreement ,
City of Wect Covina Page 2 of4
Fire Departrient
Covered Entity, or, if its infeasible to return or destroy Protected Health Information, protections
are extended to such information, in accordance with the termination provisions in this Section.
1.6.2. Termination for Cause. Upon Covered Entity's knowledge of a material breach by Business
Associate, Covered Entity shall either:
1.6.2.1. Provide an opportunity for Business Associate to cure the breach or end the violation and
terminate this Agreement if Business Associate does not cure the breach or end the violation
within the time specified by Covered Entity,
1.6.2.2. Immediately terminate this Agreement if Business Associate has breached a material term of
this Agreement and cure is not possible; or
1.6.2.3. If neither termination nor cure are feasible, Covered Entity shall report the violation to the
Secretary.
1.6.3. Effect ofTermination
1.6.3.1. Except as provided in paragraph 1.6.3.2 of this section, upon termination of this Agreement,
for any reason, Business Associate shall return or destroy all Protected Health Information
received from Covered Entity, or created or receive!;! by Business Associate on behalf of
Covered Entity. This provision shall apply to Protected Health Information that is in the
possession of subcontractors or agents of Business Associate. Business Associate shall retain
no copies ofthe Protected Health Information.
1.6.3.2. In the event that Business Associate determines that returning or destroying the Protected
Health Information is infeasible, Business Associate shall provide to Covered Entity
notification of the conditions that make return or destruction infeasible. Upon sixty (60)
days that return or destruction of Protected Health Information is infeasible, Business
Associate shall extend the protections of this Agreement to such Protected Health
Information and limit further uses and disclosures of such Protected Health Information to
those purposes that make the return or destruction infeasible, for sfl long as Business
Associate maintains such Protected Health Information.
1.7. MISCELLANEOUS
1.7.1. Regulatory References. A reference in this Agreement to a section in the Privacy Rule means the
section as in effect or as amended.
1.7.2. Amendment, The Parties agree to take such action as is necessary to amend this Agreement from
time to time as is necessary for Covered Entity to comply with the requirements of the Privacy Rule
and the Health Insurance Portability and Accountability Act of 1996, Pub. L No. 104-191.
1.7.3. Survival. The respective rights and obligations of Business Associate under Section 1.6.3 of this
Agreement shall survive the termination of this Agreement.
1.7.4. Interpretation. Any ambiguity in this Agreement shall be resolved to permit Covered Entity to
comply with the Privacy Rule.
Business Associate Agreement
City of West Covina Pagc 3 of (-
Fire Department
i
IN WITNESS HEREOF, Digital EMS Solutions hic. and Customer shall execute this Business
Associate Agreement by their signatures listed herein below.
Customer Digital EMS
Customer Name:
City of West Covina
Signature:
CO
�n
Signature: f ✓v
Printed Name:
Chris Freeland
Printed Name: Ricky Olivarez
Printed Title
City Manager
Printed Title CEO
Date: 07/25/2017
Date:
Address: 1444 W. Garvey Avenue
City West Covina
State/ Zip: California, 91790
ATTEST
:T1—a�1lof
—
the
City of West Covina
APPROVED AS TO FORM:
KJ®}b.®y
Business Associate Agreement
City of West Covina Pa,,,
Fire Department
Digital EMS Solutions Inc.
34 Savona Walk
Long Beach, CS 90803
Tax Payer Ill. 27-2674189
Date: I/S//i
12/1/2020
Print Staff Report
1. Adopt Staff's recommendation;
2. Require Staff to issue a Request for Proposal; or
3. Provide alternative direction.
Fiscal Impact
FISCAL IMPACT:
Wittman currently charges a 4.5% rate of net collections which will be altered and lowered in the new
agreement to 3.9% rate of net collections. Based on the current revenues this fiscal year, the rate change is
anticipated to be a net increase to the City of $12,297.46. The cost of the ePCR program is at a rate of $4.25
plus $0.10 for faxing. The cost for Digital EMS is budgeted each year. The cost breakdown for Wittman,
Digital EMS, and related costs (based on a projected 6,410 ambulance transports in FY 2019-20) is as
follows:
Ambulance
transportWittman*
Wittman
ePCR
Estimated revenue
collection
expenditure
expenditure
Total**
Current
$2,650,362.86
4.5% (net collections) *
$119,266.32
$27,883.50
$2,503,213.00**
Proposed
$2,600,000.00
3.9% net collections *
$101,400.00
$27,883.50
$2,470,716.50**
*No fiscal impact.
**Fiscal impact includes the cost of ePCR. The total assumes 6,410 ambulance transports as estimated for
FY2020-21.
Revenue will be deposited into Account No. 110.32.4609 (Ambulance Services). The cost of the proposed
service has been budgeted for Fiscal Year 2020-2021 in Account 110.32.3210.6120 (Other Contractual
Services).
Attachments
Attachment No. 1 - Professional Services Agreement
Attachment No. 2 - Business Associate Agreement
Attachment No. 3 - Digital EMS Business Associate Agreement
https://destinyhosted.com/print_ag_memo.Gfm?seq=914&rev_num=0&mode=6demal&reloaded=true&id=93782 3/3
CITY OF WEST COVINA
PROFESSIONAL SERVICES AGREEMENT
WITH
WITTMAN ENTERPRISES, LLC
FOR
AMBULANCE BILLING SERVICES
THIS AGREEMENT is made and entered into as of the 1st day of August, 2020 ("Effective
Date"), by and between the CITY OF WEST COVINA, a municipal corporation ("City"), and
WITTMAN ENTERPRISES. LLC, a California limited liability company ("Consultant").
WITNESSETH:
A. WHEREAS, City proposes to utilize the services of Consultant as an independent
contractor to City to provide ambulance billing services, as more fully described herein; and
B. WHEREAS, Consultant represents that it has that degree of specialized expertise
contemplated within California Government Code Section 37103, and holds all necessary
licenses to practice and perform the services herein contemplated, except that if Consultant is
required to but does not yet hold a City business license, it will promptly obtain a business license
and will not provide services to the City until it has done so; and
C. WHEREAS, City and Consultant desire to contract for the specific services
described in Exhibit "A" and desire to set forth their rights, duties and liabilities in connection with
the services to be performed; and
D. WHEREAS, no official or employee of City has a financial interest, within the
provisions of Sections 1090-1092 of the California Government Code, in the subject matter of this
Agreement.
E. WHEREAS, City and Consultant intend and desire that this Agreement be effective
retroactive to the Effective Date.
NOW, THEREFORE, for and in consideration of the mutual covenants and conditions
contained herein, the parties hereby agree as follows:
1.0. SERVICES PROVIDED BY CONSULTANT
1.1. Scope of Services. Consultant shall provide the professional services described
in the Scope of Services attached hereto as Exhibit "A," incorporated herein by this reference.
City and Consultant shall separately enter into a Business Associate Agreement in connection
with this Agreement.
1.2. Professional Practices. All professional services to be provided by Consultant
pursuant to this Agreement shall be provided by personnel experienced in their respective fields
and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by
professional consultants in similar fields and circumstances in accordance with sound
professional practices. Consultant also warrants that it is familiar with all laws that may affect its
1
Wittman Enterprises, LLC
Form Revised April 2020
performance of this Agreement and shall advise City of any changes in any laws that may affect
Consultant's performance of this Agreement. Consultant shall keep itself informed of State and
Federal laws and regulations which in any manner affect those employed by it or in any way affect
the performance of its service pursuant to this Agreement. The Consultant shall at all times
observe and comply with all such laws and regulations. City officers and employees shall not be
liable at law or in equity for any claims or damages occurring as a result of failure of the Consultant
to comply with this section.
1.3. Performance to Satisfaction of Citv. Consultant agrees to perform all the work to
the reasonable satisfaction of the City. Evaluations of the work will be conducted by the City
Manager or his or her designee. If the quality of work is not satisfactory, City in its discretion has
the right to:
(a) Meet with Consultant to review the quality of the work and resolve the
matters of concern;
(b) Require Consultant to repeat the work at no additional fee until it is
satisfactory; and/or
(c) Terminate the Agreement as hereinafter set forth.
1.4. Warranty. Consultant warrants that it shall perform the services required by this
Agreement in compliance with all applicable Federal and California employment laws, including,
but not limited to, those laws related to minimum hours and wages; occupational health and
safety; fair employment and employment practices; workers' compensation; and all other Federal,
State and local laws and ordinances applicable to the services required under this Agreement.
1.5. Non-discrimination. In performing this Agreement, Consultant shall not engage in,
nor permit its agents to engage in, discrimination in employment of persons because of their race,
religion, color, national origin, ancestry, age, physical or mental disability, medical condition,
genetic information, pregnancy, marital status, sex, gender, gender identity, gender expression,
sexual orientation, or military or veteran status, except as permitted pursuant to Section 12940 of
the Government Code.
1.6. Non -Exclusive Agreement. Consultant acknowledges that City may enter into
agreements with other consultants for services similar to the services that are subject to this
Agreement or may have its own employees perform services similar to those services
contemplated by this Agreement.
1.7. Confidentiality. Employees of Consultant in the course of their duties may have
access to financial, accounting, statistical, and personnel data of private individuals and
employees of City. Consultant covenants that all data, documents, discussion, or other
information developed or received by Consultant or provided for performance of this Agreement
are deemed confidential and shall not be disclosed by Consultant without written authorization by
City. City shall grant such authorization if disclosure is required by law. All City data shall be
returned to City upon the termination of this Agreement. Consultant's covenant under this Section
shall survive the termination of this Agreement.
1.8 Public Records Act Disclosure. Consultant has been advised and is aware that
Wittman Enterprises, LLC
Form Revised April 2020
this Agreement and all reports, documents, information and data, including, but not limited to,
computer tapes, discs or files furnished or prepared by Consultant, or any of its subcontractors,
pursuant to this Agreement and provided to City may be subject to public disclosure as required
by the California Public Records Act (California Government Code Section 6250 et seq.).
Exceptions to public disclosure may be those documents or information that qualify as trade
secrets, as that term is defined in California Government Code Section 6254.7, and of which
Consultant informs City of such trade secret. The City will endeavor to maintain as confidential all
information obtained by it that is designated as a trade secret. The City shall not, in any way, be
liable or responsible for the disclosure of any trade secret including, without limitation, those
records so marked if disclosure is deemed to be required by law or by order of the court.
2.0. COMPENSATION AND BILLING
2.1. Compensation. Consultant shall be paid in accordance with the fee schedule set
forth in Exhibit "B," attached hereto and made a part of this Agreement (the "Fee Schedule").
2.2. Additional Services. Consultant shall not receive compensation for any services
provided outside the scope of services specified in the Consultant's Proposal unless the City,
prior to Consultant performing the additional services, approves such additional services in
writing. It is specifically understood that oral requests and/or approvals of such additional services
or additional compensation shall be barred and are unenforceable. Should the City request in
writing additional services that increase the Scope of Services, an additional fee based upon the
Consultant's standard hourly rates shall be paid to the Consultant for such additional services.
Such increase in additional fees shall be limited to 25% of the total contract sum or to the
maximum total contract amount of $25,000, whichever is greater. The Department Head or City
Manager is authorized to approve a Change Order for such additional services.
2.3. Method of Billing. Consultant may submit invoices to the City for approval on a
progress basis, but no more often than once a month. Said invoice shall be based on the total of
all Consultant's services which have been completed to City's sole satisfaction. City shall pay
Consultant's invoice within forty-five (45) days from the date City receives said invoice. Each
invoice shall describe in detail the services performed, the date of performance, and the
associated time for completion. Any additional services approved and performed pursuant to this
Agreement shall be designated as "Additional Services" and shall identify the number of the
authorized change order, where applicable, on all invoices.
2.4. Records and Audits. Records of Consultant's services relating to this Agreement
shall be maintained in accordance with generally recognized accounting principles and shall be
made available to City for inspection and/or audit at mutually convenient times from the Effective
Date until three (3) years after the termination or expiration of this Agreement.
3.0. TIME OF PERFORMANCE
3.1. Commencement and Completion of Work. Unless otherwise agreed to by the
parties, the professional services to be performed pursuant to this Agreement shall commence
within five (5) days from the Effective Date of this Agreement. Failure to commence work in a
timely manner and/or diligently pursue work to completion may be grounds for termination of this
Agreement.
3
Wittman Enterprises, U-C
Form Revised April 2020
3.2. Excusable Delays. Neither party shall be responsible for delays or lack of
performance resulting from acts beyond the reasonable control of the party or parties. Such acts
shall include, but not be limited to, acts of God, fire, strikes, material shortages, compliance with
laws or regulations, riots, acts of war, or any other conditions beyond the reasonable control of a
party. If a delay beyond the control of the Consultant is encountered, a time extension may be
mutually agreed upon in writing by the City and the Consultant. The Consultant shall present
documentation satisfactory to the City to substantiate any request for a time extension.
4.0. TERM AND TERMINATION
4.1. Term. This Agreement shall commence on the Effective Date and continue for a
period of five (5) years, ending on July 31, 2025, unless previously terminated as provided herein
or as otherwise agreed to in writing by the parties.
4.2. Notice of Termination. The City reserves and has the right and privilege of
canceling, suspending or abandoning the execution of all or any part of the work contemplated
by this Agreement, with or without cause, at any time, by providing at least fifteen (15) days prior
written notice to Consultant. In the event of such termination, Consultant shall immediately stop
rendering services under this Agreement unless directed otherwise by the City. If the City
suspends, terminates or abandons a portion of this Agreement such suspension, termination or
abandonment shall not make void or invalidate the remainder of this Agreement.
If the Consultant defaults in the performance of any of the terms or conditions of this
Agreement, it shall have ten (10) days after service upon it of written notice of such default in
which to cure the default by rendering a satisfactory performance. In the event that the Consultant
fails to cure its default within such period of time, the City shall have the right, notwithstanding
any other provision of this Agreement, to terminate this Agreement without further notice and
without prejudice to any other remedy to which it may be entitled to at law, in equity, or under this
Agreement.
The City also shall have the right, notwithstanding any other provisions of this Agreement,
to terminate this Agreement, at its option and without prejudice to any other remedy to which it
may be entitled to at law, in equity, or under this Agreement, immediately upon service of written
notice of termination on the Consultant, if the latter should:
a. Be adjudged a bankrupt;
b. Become insolvent or have a receiver of its assets or property appointed
because of insolvency;
C. Make a general assignment for the benefit of creditors;
d. Default in the performance of any obligation or payment of any
indebtedness under this Agreement;
e. Suffer any judgment against it to remain unsatisfied or unbonded of record
for thirty (30) days or longer; or
f. Institute or suffer to be instituted any procedures for reorganization or
Wittman Enterprises, LLC
Form Revised April 2020
rearrangement of its affairs.
4.3. Compensation. In the event of termination, City shall pay Consultant for
reasonable costs incurred and professional services satisfactorily performed up to and including
the effective date of the City's written notice of termination, within forty-five (45) days after the
effective date of the notice of termination or the final invoice of the Consultant, whichever occurs
last. Compensation for work in progress shall be prorated based on the percentage of work
completed as of the effective date of termination in accordance with the fees set forth herein.
4.4. Documents. In the event of termination of this Agreement, all documents prepared
by Consultant in its performance of this Agreement including, but not limited to, finished or
unfinished design, development and construction documents, data studies, drawings, maps and
reports, shall be delivered to the City within ten (10) days of the effective date of the notice of
termination, at no cost to City.
5.0. INSURANCE
5.1. Minimum Scope and Limits of Insurance. Consultant shall obtain, maintain, and
keep in full force and effect during the life of this Agreement all of the following minimum scope
of insurance coverages with an insurance company authorized to do business in California, with
a current A.M. Best's rating of no less than A:VII, and approved by City:
(a) Broad -form commercial general liability, including premises -operations,
products/completed operations, broad form property damage, blanket
contractual liability, independent contractors, personal injury or bodily injury
with a policy limit of not less than Two Million Dollars ($2,000,000.00),
combined single limits, per occurrence. If such insurance contains a
general aggregate limit, it shall apply separately to this Agreement or shall
be twice the required occurrence limit.
(b) Business automobile liability for owned vehicles, hired, and non -owned
vehicles, with a policy limit of not less than One Million Dollars
($1,000,000.00), combined single limits, per accident for bodily injury and
property damage.
(c) Workers' compensation insurance as required by the State of California,
with Statutory Limits, and Employer's Liability Insurance with a limit of no
less than One Million Dollars ($1,000,000.00) per accident for bodily injury
or disease. Consultant agrees to waive, and to obtain endorsements from
its workers' compensation insurer waiving subrogation rights under its
workers' compensation insurance policy against the City, its officers,
agents, employees, and volunteers for losses arising from work performed
by Consultant for the City and to require each of its subcontractors, if any,
to do likewise under their workers' compensation insurance policies.
By execution of this Agreement, the Consultant certifies as follows:
I am aware of, and will comply with, Section 3700 of the Labor
Code, requiring every employer to be insured against liability of
Wittman Enterprises, LLC
Form Revised April 2020
Workers' Compensation or to undertake self-insurance before
commencing any of the work.
The Consultant shall also comply with Section 3800 of the Labor Code by
securing, paying for and maintaining in full force and effect for the duration
of this Agreement, complete Workers' Compensation Insurance, and shall
furnish a Certificate of Insurance to the City before execution of this
Agreement by the City. The City, its officers and employees shall not be
responsible for any claims in law or equity occasioned by failure of the
consultant to comply with this section.
(d) Professional errors and omissions ("E&O") liability insurance with policy
limits of not less than One Million Dollars ($1,000,000.00), combined single
limits, per occurrence or claim, and Two Million Dollars ($2,000,000.00)
aggregate. Architects' and engineers' coverage shall be endorsed to
include contractual liability. If the policy is written as a "claims made" policy,
the retroactivity date shall be prior to the start of the work set forth herein.
Consultant shall obtain and maintain said E&O liability insurance during the
life of this Agreement and for five (5) years after completion of the work
hereunder. If coverage is canceled or non -renewed, and not replaced with
another claims -made policy form with a retroactive date prior to the
effective date of this Agreement, Consultant shall purchase "extended
reporting" coverage for a minimum of five (5) years after completion of the
work.
If the Consultant maintains higher limits or has broader coverage than the minimums
shown above, the City requires and shall be entitled to all coverage, and to the higher limits
maintained by the Consultant. Any available insurance proceeds in excess of the specified
minimum limits of insurance and coverage shall be available to the City.
5.2. Endorsements. The insurance policies are to contain, or be endorsed to contain,
the following provisions:
(a) Additional Insureds: The City of West Covina and its elected and appointed
boards, officers, officials, agents, employees, and volunteers are additional
insureds with respect to: liability arising out of activities performed by or on
behalf of the Consultant pursuant to its contract with the City; products and
completed operations of the Consultant; premises owned, occupied or
used by the Consultant; automobiles owned, leased, hired, or borrowed by
the Consultant.
(b) Notice of Cancelation: Each insurance policy required above shall provide
that coverage shall not be canceled, except with notice to the City.
(c) Primary Coverage: The Consultant's insurance coverage shall be primary
insurance as respects the City of West Covina, its officers, officials, agents,
employees, and volunteers. Any other insurance maintained by the City of
West Covina shall be excess and not contributing with the insurance
provided by this policy.
Wittman Enterprises, LLC
Form Revised April 2020