AMENDMENT TO THE SUBSUBLEASE AGREEMENT BETWEEN THE COUNTY OF SAN MATEO AND CARMICHAEL & ASSOCIATES
THIS AMENDMENT TO THE SUBSUBLEASE AGREEMENT, entered into this 1st day of February, 2007, by and between the COUNTY OF SAN MATEO, hereinafter called "County," and CARMICHAEL & ASSOCIATES, INC., hereinafter in this Amendment called "Contractor";
W I T N E S S E T H:
WHEREAS, pursuant to Resolution No. 068493, adopted by the Governing Board of the County of San Mateo, the County entered into a Sublease Agreement, effective as of January 1, 2007 (the “Sublease Agreement”), under which the County Subleases approximately 4,200 rentable square feet of space from Contractor at 1241 East Hillsdale Boulevard, in Foster City, California (the “Premises”); and WHEREAS, the County intends to provide certain specialty medical services at the Premises; and WHEREAS, the County requires certain management services (the “Management Services”) in connection with its proposed use of space the Premises, and the Contractor has the ability to provide such services; and WHEREAS, the County and Contractor desire to amend the Sublease Agreement to set forth the Management Services to be provided by Contractor at the Premises; WHEREAS, pursuant to Government Code, Section 31000, County may contract with independent contractors for the furnishing of such services to or for County or any Department thereof;
NOW, THEREFORE, IT IS HEREBY AGREED BY THE PARTIES HERETO AS FOLLOWS:
1.		Amendment Exhibits and Attachments
The Parties agree to amend the Sublease Agreement as set forth in this Amendment. Except as set forth in this Amendment, all the terms and conditions of the Sublease Agreement remain unchanged. The following exhibits and attachments are included hereto and incorporated by reference herein: Exhibit A - Services Exhibit B - Payment and Rates Attachment H - HIPAA Business Associate requirements Attachment I - § 504 Compliance
2.		Services to be performed by Contractor
In consideration of the payments set forth herein and in Exhibit “B,” Contractor shall perform services for County in accordance with the terms, conditions and specifications set forth herein and in Exhibit “A.”
3.		Payments
In consideration of the services provided by Contractor in accordance with all terms, conditions and specifications set forth herein and in Exhibit "A," County shall make payment to Contractor based on the rates and in the manner specified in Exhibit "B." The County reserves the right to withhold payment if the County determines that the quantity or quality of the work performed is unacceptable. In no event shall the County’s total fiscal obligation under this Amendment exceed TWO HUNDRED THOUSAND DOLLARS, $200,000.
4.		Term and Termination
Subject to compliance with all terms and conditions, the term of this Amendment shall be February 1, 2007 to January 31, 2008. Termination of the Sublease Agreement shall result in an immediate and automatic termination of this Amendment. This Amendment to the Agreement may be terminated by Contractor, the Chief Executive Officer of the San Mateo Medical Center or his/her designee at any time without a requirement of good cause upon thirty (30) days’ written notice to the other party. In the event of termination, all finished or unfinished documents, data, studies, maps, photographs, reports, and materials (hereafter referred to as materials) prepared by Contractor under this Amendment shall become the property of the County and shall be promptly delivered to the County. Upon termination, the Contractor may make and retain a copy of such materials. Subject to availability of funding, Contractor shall be entitled to receive payment for work/services provided prior to termination of the Amendment. Such payment shall be that portion of the full payment which is determined by comparing the work/services completed to the work/services required by the Amendment.
5.		Availability of Funds
The County may terminate this Amendment or a portion of the services referenced in the Attachments and Exhibits based upon unavailability of Federal, State, or County funds, by providing written notice to Contractor as soon as is reasonably possible after the County learns of said unavailability of outside funding.
6.		Relationship of Parties
Contractor agrees and understands that the work/services performed under this Amendment are performed as an independent Contractor and not as an employee of the County and that Contractor acquires none of the rights, privileges, powers, or advantages of County employees.
7.		Hold Harmless
Contractor shall indemnify and save harmless County, its officers, agents, employees, and servants from all claims, suits, or actions of every name, kind, and description, brought for, or on account of: (A) injuries to or death of any person, including Contractor, or (B) damage to any property of any kind whatsoever and to whomsoever belonging, (C) any sanctions, penalties, or claims of damages resulting from Contractor’s failure to comply with the requirements set forth in the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and all Federal regulations promulgated thereunder, as amended, or (D) any other loss or cost, including but not limited to that caused by the concurrent active or passive negligence of County, its officers, agents, employees, or servants, resulting from the performance of any work required of Contractor or payments made pursuant to this Amendment, provided that this shall not apply to injuries or damage for which County has been found in a court of competent jurisdiction to be solely liable by reason of its own negligence or willful misconduct.
The duty of Contractor to indemnify and save harmless as set forth herein, shall include the duty to defend as set forth in Section 2778 of the California Civil Code.
8.		Assignability and Subcontracting
Contractor shall not assign this Amendment or any portion thereof to a third party or subcontract with a third party to provide services required by contractor under this Amendment without the prior written consent of County. Any such assignment or subcontract without the County’s prior written consent shall give County the right to automatically and immediately terminate this Amendment.
9.		Insurance
The Contractor shall not commence work or be required to commence work under this Amendment unless and until all insurance required under this paragraph has been obtained and such insurance has been approved by Risk Management, and Contractor shall use diligence to obtain such insurance and to obtain such approval. The Contractor shall furnish the Department/Division with certificates of insurance evidencing the required coverage, and there shall be a specific contractual liability endorsement extending the Contractor's coverage to include the contractual liability assumed by the Contractor pursuant to this Amendment. These certificates shall specify or be endorsed to provide that thirty (30) days' notice must be given, in writing, to the Department/Division of any pending change in the limits of liability or of any cancellation or modification of the policy.
(1)			Worker's Compensation and Employer's Liability Insurance The Contractor shall have in effect during the entire life of this Amendment Workers' Compensation and Employer's Liability Insurance providing full statutory coverage. In signing this Amendment, the Contractor certifies, as required by Section 1861 of the California Labor Code, that it is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of the Code, and will comply with such provisions before commencing the performance of the work of this Amendment.
(2)			Liability Insurance The Contractor shall take out and maintain during the life of this Amendment such Bodily Injury Liability and Property Damage Liability Insurance as shall protect him/her while performing work covered by this Amendment from any and all claims for damages for bodily injury, including accidental death, as well as any and all claims for property damage which may arise from contractors operations under this Amendment, whether such operations be by himself/herself or by any sub-contractor or by anyone directly or indirectly employed by either of them. Such insurance shall be combined single limit bodily injury and property damage for each occurrence and shall be not less than the amount specified below.
			Such insurance shall include:
			(a)			Comprehensive General Liability . . . . . . . . . . . . . . . . . .			$1,000,000
			(b)			Workers Compensation Insurance . . . . . . . . . . . . . . . . . .			$1,000,000
			(c)			Professional Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . .			$1,000,000
County and its officers, agents, employees and servants shall be named as additional insured on any such policies of insurance, which shall also contain a provision that the insurance afforded thereby to the County, its officers, agents, employees and servants shall be primary insurance to the full limits of liability of the policy, and that if the County or its officers and employees have other insurance against the loss covered by such a policy, such other insurance shall be excess insurance only.
In the event of the breach of any provision of this section, or in the event any notice is received which indicates any required insurance coverage will be diminished or canceled, the County of San Mateo at its option, may, notwithstanding any other provision of this Amendment to the contrary, immediately declare a material breach of this Amendment and suspend all further work pursuant to this Amendment.
10.		Compliance with laws; payment of Permits/Licenses
All services to be performed by Contractor pursuant to this Amendment shall be performed in accordance with all applicable Federal, State, County, and municipal laws, ordinances and regulations, including, but not limited to, the Health Insurance Portability and Accountability Act of 1996 (HIPAA), and the Federal Regulations promulgated thereunder, as amended, and will comply with the Business Associate requirements set forth in Attachment “H,” and the Americans with Disabilities Act of 1990, as amended, and Section 504 of the Rehabilitation Act of 1973, as amended and attached hereto and incorporated by reference herein as Attachment “I,” which prohibits discrimination on the basis of handicap in programs and activities receiving any Federal or County financial assistance. Such services shall also be performed in accordance with all applicable ordinances and regulations, including, but not limited to, appropriate licensure, certification regulations, provisions pertaining to confidentiality of records, and applicable quality assurance regulations. In the event of a conflict between the terms of this Amendment and State, Federal, County, or municipal law or regulations, the requirements of the applicable law will take precedence over the requirements set forth in this Amendment. Contractor will timely and accurately complete, sign, and submit all necessary documentation of compliance.
11.	Non-Discrimination and Other Requirements
A.	Section 504 applies only to Contractors who are providing services to members of the public. Contractor shall comply with § 504 of the Rehabilitation Act of 1973, which provides that no otherwise qualified handicapped individual shall, solely by reason of a disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination in the performance of this Amendment.
B.	General non-discrimination. No person shall, on the grounds of race, color, religion, ancestry, gender, age (over 40), national origin, medical condition (cancer), physical or mental disability, sexual orientation, pregnancy, childbirth or related medical condition, marital status, or political affiliation be denied any benefits or subject to discrimination under this Amendment.
C.	Equal employment opportunity. Contractor shall ensure equal employment opportunity based on objective standards of recruitment, classification, selection, promotion, compensation, performance evaluation, and management relations for all employees under this Amendment. Contractor’s equal employment policies shall be made available to County of San Mateo upon request.
D.	Violation of Non-discrimination provisions. Violation of the non-discrimination provisions of this Amendment shall be considered a breach of this Amendment and subject the Contractor to penalties, to be determined by the County Manager, including but not limited to
				i)			termination of this Amendment;
				ii)			disqualification of the Contractor from bidding on or being awarded a County contract for a period of up to 3 years;
				iii)			liquidated damages of $2,500 per violation;
				iv)			imposition of other appropriate contractual and civil remedies and sanctions, as determined by the County Manager.
To effectuate the provisions of this section, the County Manager shall have the authority to examine Contractor’s employment records with respect to compliance with this paragraph and/or to set off all or any portion of the amount described in this paragraph against amounts due to Contractor under the Contract or any other Contract between Contractor and County.
Contractor shall report to the County Manager the filing by any person in any court of any complaint of discrimination or the filing by any person of any and all charges with the Equal Employment Opportunity Commission, the Fair Employment and Housing Commission or any other entity charged with the investigation of allegations within 30 days of such filing, provided that within such 30 days such entity has not notified Contractor that such charges are dismissed or otherwise unfounded. Such notification shall include the name of the complainant, a copy of such complaint, and a description of the circumstance. Contractor shall provide County with a copy of their response to the Complaint when filed.
E.	Compliance with Equal Benefits Ordinance. With respect to the provision of employee benefits, Contractor shall comply with the County Ordinance which prohibits contractors from discriminating in the provision of employee benefits between an employee with a domestic partner and an employee with a spouse.
F. E.	The Contractor shall comply fully with the non-discrimination requirements required by 41 CFR 60-741.5(a), which is incorporated herein as if fully set forth.
12.		Compliance with Contractor Employee Jury Service Ordinance
Contractor shall comply with the County Ordinance with respect to provision of jury duty pay to employees and have and adhere to a written policy that provides that its employees shall receive from the contractor, on an annual basis, no less than five days of regular pay for actual jury service in San Mateo County. The policy may provide that employees deposit any fees received for such jury service with the contractor or that the contractor deduct from the employees’ regular pay the fees received for jury service.
13.		Retention of Records, Right to Monitor and Audit
(a) CONTRACTOR shall maintain all required records for three (3) years after the COUNTY makes final payment and all other pending matters are closed, and shall be subject to the examination and/or audit of the County, a Federal grantor agency, and the State of California. (b) Reporting and Record Keeping: CONTRACTOR shall comply with all program and fiscal reporting requirements set forth by appropriate Federal, State and local agencies, and as required by the COUNTY. (c) CONTRACTOR agrees to provide to COUNTY, to any Federal or State department having monitoring or review authority, to COUNTY's authorized representatives, and/or their appropriate audit agencies upon reasonable notice, access to and the right to examine all records and documents necessary to determine compliance with relevant Federal, State, and local statutes, rules and regulations, and this Amendment, and to evaluate the quality, appropriateness and timeliness of services performed.
14.		Merger Clause
This Amendment, including the Exhibits attached hereto and incorporated herein by reference, constitutes the sole Agreement of the parties hereto and correctly states the rights, duties, and obligations of each party as of this document's date. In the event that any term, condition, provision, requirement or specification set forth in this body of the Amendment conflicts with or is inconsistent with any term, condition, provision, requirement or specification in any exhibit and/or attachment to this Amendment, the provisions of this body of the Amendment shall prevail. Any prior agreement, promises, negotiations, or representations between the parties not expressly stated in this document are not binding. All subsequent modifications shall be in writing and signed by the parties.
15.		Controlling Law
The validity of this Amendment and of its terms or provisions, as well as the rights and duties of the parties hereunder, the interpretation, and performance of this Amendment shall be governed by the laws of the State of California.
16.		Notices
		Any notice, request, demand, or other communication required or permitted hereunder shall be deemed to be properly given when deposited in the United State mail, postage prepaid, or when deposited with a public telegraph company for transmittal, charges prepaid, addressed to: In the case of County, to: San Mateo Medical Center 222 W 37th Avenue San Mateo, CA 94403 In the case of Contractor, to: Carmichael & Associates, Inc. Mariner Medical Center 1241 E. Hillsdale Boulevard Foster City, CA 94403
IN WITNESS WHEREOF, the parties hereto, by their duly authorized representatives, have affixed their hands.
								COUNTY OF SAN MATEO
								By:
								President, Board of Supervisors, San Mateo County
								Date:
ATTEST:
By:
Clerk of Said Board
CARMICHAEL & ASSOCIATES, INC.
Contractor’s Signature
Date:
Long Form Agreement/Business Associate v 6/28/06
Exhibit “A” In consideration of the payments set forth in Exhibit “B”, Contractor shall provide the following services: Management Services: Contractor agrees to provide the following Management Services to the County in connection with the County’s activities at the Premises: a. Provision and maintenance of facsimile and photocopy services. b. Provision and maintenance of refrigeration services (for medications). c. Stocking and restocking of all furnishings and medical supplies used in exam rooms and procedure areas. d. Provision of appropriate signage. e. Remote access set-up and maintenance. f. Provision of computer and peripheral devices used by the County at the premises. g. Provision of telephone services. h. Provision of waiting room areas for patients seen by County at the premises and furnishing and maintenance of such areas. i. Provision of security services for the Premises. j. Scheduling of patients to be seen by medical doctors occupying space at the Premises pursuant to the Sublease Agreement. k. Obtaining insurance referrals and confirming eligibility. l. Registering patients seen by medical doctors occupying space at the Premises pursuant to the Sublease Agreement. m. Setting and confirming schedules of medical doctors occupying space at the Premises pursuant to the Sublease Agreement. n. Preparing and maintaining charts for medical doctors occupying space at the Premises pursuant to the Sublease Agreement. o. Collection of patient co-payments and preparation of dialing accounting for the County and/or medical doctors occupying space at the Premises pursuant to the Sublease Agreement. p. Preparation of patient history and/or related forms as requested by medical doctors occupying space at the Premises pursuant to the Sublease Agreement. q. Triaging and rooming of patients seen by medical doctors occupying space at the Premises pursuant to the Sublease Agreement by appropriately trained and licensed nursing personnel. r. Upon request, provision of nursing services to assist medical doctors occupying space at the Premises pursuant to the Sublease Agreement. s. Provision of x-ray services, upon request. t. Scheduling of follow-up appointments for patients to be seen by medical doctors occupying space at the Premises pursuant to the Sublease Agreement. u. Hazardous waste disposal. v. Document destruction/shredding. w. Patient records maintenance. x. Manage and review incoming lab reports and route results to appropriate medical doctors occupying space at the Premises pursuant to the Sublease Agreement. y. Supply appropriately trained and licensed staff to serve as liaison between patients and medical doctors occupying space at the Premises pursuant to the Sublease Agreement. z. Provision of appropriate marketing and publicity services in connection with the County’s activities at the Premises.
Exhibit “B”
In consideration of the services provided by Contractor in Exhibit “A”, County shall pay Contractor based on the following fee schedule: Payment for Management Services: In consideration of the Management Services provided above, the County will pay the Contractor fees as follows (the “Management Fee”): a. February 2007: The Management Fee due and payable for February 2007 shall be $7,583.00 (seven thousand five hundred and eighty three dollars), plus $75.00 (seventy five dollars) for each patient encounter with a medical doctor occupying space at the Premises pursuant to the Sublease Agreement. For example, and by way of illustration, if medical doctors occupying space at the Premises pursuant to the Sublease Agreement have fifteen patient encounters, the total Management Fee due and payable to Contractor shall be $8,708.00 (i.e., $7,583.00 plus $1,125.00 for the patient encounters). b. March 2007: The Management Fee due and payable for March 2007 shall be $5,733.00 (five thousand seven hundred and thirty three dollars), plus $75.00 (seventy five dollars) for each patient encounter with a medical doctor occupying space at the Premises pursuant to the Sublease Agreement. c. April 2007: The Management Fee due and payable for April 2007 shall be $8,233.00 (eight thousand two hundred and thirty three dollars), plus $75.00 (seventy five dollars) for each patient encounter with a medical doctor occupying space at the Premises pursuant to the Sublease Agreement. d. May and June 2007: The Management Fee due and payable for May and June 2007 shall be $9,899.00 (nine thousand eight hundred and ninety nine dollars) for each of these months, plus $125.00 (one hundred and twenty five) for each patient encounter with a medical doctor occupying space at the Premises pursuant to the Sublease Agreement. e. July 2007: The Management Fee due and payable for July 2007 shall be $6,899.00 (six thousand eight hundred and ninety nine dollars), plus $125.00 (one hundred and twenty five) for each patient encounter with a medical doctor occupying space at the Premises pursuant to the Sublease Agreement. f. August, September and October 2007: The Management Fee due and payable for August, September and October 2007 shall be $11,899.00 (eleven thousand eight hundred and ninety nine dollars) for each of these months, plus $125.00 (one hundred and twenty five) for each patient encounter with a medical doctor occupying space at the Premises pursuant to the Sublease Agreement. g. November 2007 and Subsequent Months: The Management Fee due and payable for November 2007 and for each subsequent month thereafter during the term of this Amendment to the Sublease Agreement shall be $10,899.00 (ten thousand eight hundred and ninety nine dollars) for each of these months, plus $125.00 (one hundred and twenty five) for each patient encounter with a medical doctor occupying space at the Premises pursuant to the Sublease Agreement.