AGREEMENT BETWEEN THE COUNTY OF SAN MATEO AND
INFERMED, LTD.

THIS AGREEMENT, entered into this _____ day of _______________ , 20_____, by and between the COUNTY OF SAN MATEO, hereinafter called "County," and INFERMED, LTD., hereinafter called "Contractor";

W I T N E S S E T H:

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;

WHEREAS, it is necessary and desirable that Contractor be retained for the purpose of providing software and support for a Smart Referral System that will integrate with the Ambulatory Electronic Medical Record Systems at San Mateo Medical Center.

NOW, THEREFORE, IT IS HEREBY AGREED BY THE PARTIES HERETO AS FOLLOWS:

1.

Exhibits and Attachments

The following exhibits and attachments are included hereto and incorporated by reference herein:

Exhibit A—Services

Exhibit B—Payments and rates
Exhibit C – Statement of Work
Exhibit E – Corporate Compliance SMMC Code of Conduct (Third Parties)
Exhibit F – License Agreement to Use Arezzo

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 Exhibits “A” and “C.”

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 Agreement exceed ONE HUNDRED SIXTY NINE THOUSAND, NINE HUNDRED EIGHTY DOLLARS ($169,980).

4.

Term and Termination

Subject to compliance with all terms and conditions, the term of this Agreement shall be from October 1, 2010 through September 30, 2013.

This Agreement may be terminated by Contractor, the Chief of the Health System 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 Agreement 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 Agreement. 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 Agreement.

5.

Availability of Funds

The County may terminate this Agreement 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 Agreement 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

a. It is agreed that Contractor shall defend, save harmless and indemnify County, its officers and employees from any and all claims which arise out of the terms and conditions of this Agreement and which result from the negligent acts or omissions of Contractor, its officers and/or employees.

b. It is agreed that County shall defend, save harmless, and indemnify Contractor, its officers and employees from any and all claims for injuries or damage to persons and/or property which arise out of the terms and conditions of this Agreement and which result from the negligent acts or omissions of County, its officers and/or employees.

c. In the event of concurrent negligence of County, its officers and/or employees, and Contractor, its officers and/or employees, then the liability for any and all claims for injuries or damage to persons and/or property which arise out of terms and conditions of this Agreement shall be apportioned according to the California theory of comparative negligence.

The duty 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 Agreement or any portion thereof to a third party or subcontract with a third party to provide services required by contractor under this Agreement 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 Agreement.

9.

Insurance

The Contractor shall not commence work or be required to commence work under this Agreement 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 County 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 Agreement. These certificates shall specify or be endorsed to provide that thirty (30) days' notice must be given, in writing, to the County of any pending change in the limits of liability or of any cancellation or modification of the policy.

(1)

Liability Insurance The Contractor shall take out and maintain during the life of this Agreement such Bodily Injury Liability and Property Damage Liability Insurance as shall protect him/her while performing work covered by this Agreement 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 Agreement, 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)

Motor Vehicle Liability Insurance . . . . . . . . . . . . . . . . . .

$1,000,000

(c)

Professional Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . .

$1,000,000

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 Agreement to the contrary, immediately declare a material breach of this Agreement and suspend all further work pursuant to this Agreement.

10.

Compliance With Laws

All services to be performed by Contractor pursuant to this Agreement shall be performed (1) 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), the Federal Regulations promulgated thereunder, as amended, 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; and (2) in compliance with the Business Associate requirements set forth in Attachment “H.” 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 Agreement 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 Agreement. Further, Contractor certifies that the Contractor and all of its subcontractors will adhere to all applicable provisions of Chapter 4.106 of the San Mateo County Ordinance Code, which regulates the use of disposable food service ware.

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 Agreement.

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 Agreement.

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 Agreement. 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 Agreement shall be considered a breach of this Agreement and subject the Contractor to penalties, to be determined by the County Manager, including but not limited to

i)

termination of this Agreement;

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 Agreement 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 prohibiting 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 of 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 Agreement, and to evaluate the quality, appropriateness and timeliness of services performed.

14.

Merger Clause, Amendments, and Counterparts

This Agreement, including the Exhibits and Attachments 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 agreement conflicts with or is inconsistent with any term, condition, provision, requirement or specification in any exhibit and/or attachment to this agreement, the provisions of this body of the agreement shall prevail. Any prior agreement, promises, negotiations, or

representations between the parties not expressly stated in this document, whether written or otherwise, regarding the subject matter of this agreement are not binding. All subsequent modifications shall be in writing and signed by the parties. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

15.

Controlling Law and Venue

The validity of this Agreement and of its terms or provisions, as well as the rights and duties of the parties hereunder, the interpretation, and performance of this Agreement shall be governed by the laws of the State of California. Any dispute arising out of this Agreement shall be venued either in the San Mateo County Superior Court or in the United States District Court for the Northern District of California.

16.

Confidentiality

California Government Code sections 6250 et seq. (“California Public Records Act”) defines a public record as any writing containing information relating to the conduct of the public business. The Act provides that public records shall be disclosed upon written request, and that any citizen has a right to inspect any public record, unless the document is exempted from disclosure.

SMMC can not represent or guarantee that any information submitted relative to this Agreement will be confidential. If SMMC receives a request for any document relating to this Agreement, it will not assert any privileges that may exist on behalf of the business entity as a party in this Agreement. It is the responsibility of that business entity to assert any applicable privileges or reasons why the document should not be produced. Upon receipt of a request under the California Public Records Act, SMMC will, if it is able, notify each party whose documents are being sought so that each such party may attempt to assert any applicable privileges.

To the extent consistent with applicable provisions of the Public Records Act and applicable case law interpreting those provisions, SMMC and/or its officers, agents and employees retain the discretion to release or withhold disclosure of any information submitted relative to this Agreement.

17.

Notices

Any notice, request, demand, or other communication required or permitted hereunder shall be deemed to be properly given when both (1) transmitted via facsimile to the telephone number listed below and (2) either deposited in the United State mail, postage prepaid, or when deposited for overnight delivery with an established overnight courier that provides a tracking number showing confirmation of receipt, for transmittal, charges prepaid, addressed to:

In the case of County, to:

San Mateo Medical Center
222 W. 39^th Avenue
San Mateo, CA 94403

Attn: Dr. Chester J. Kunnappilly
Chief Medical Officer


In the case of Contractor, to:

InferMed Ltd.
25 Bedford Square
London WC1B 3HW
UK

In the event that the facsimile transmission is not possible, notice shall be given both by United States mail and an overnight courier as outlined above.

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

INFERMED, LTD.

Contractor’s Signature

Date:

Long Form Agreement/Business Associate v 8/19/08

Exhibit “B”

In consideration of the services provided by Contractor in Exhibit “A”, County shall pay Contractor based on the following fee schedule:

A.

Development for Smart Referral System

$41,580 Fixed Fee

1.

48% ($20,000) paid via San Mateo County Check No. 01925188

2.

52% ($21,580) upon Implementation/First Productive Use

B.

Training (5)

$ 5,000 Fixed Fee

1.

Payable in full upon completion of training

C.

Travel Expense

Not to exceed $3,400 as Incurred Fee

Travel expenses are based on two (2) trips to SMMC during implementation, five (5) on-site days (training to be carried out on one of these or spread across the two trips), plus one trip per year during the first three years (3 trips), each of two on-site days. All travel and related expenses will be at a rates ordinarily incurred by County staff when traveling on County business. Should additional trips or on-site days be requested that result in travel and expenses exceeding $3,400, such travel and expenses associated with it must be approved in a written Amendment to this Agreement.

D.

Arezzo Software License (see Exhibit “F”)

$40,000 Annual Fee

1.

Payable commencing upon delivery of SRS.

E.

Additional Services (work-orders) Rate

$ 1,200 Per Day

Additional services (work-orders) are defined as any services performed onsite or remotely that fall outside of the five contracted onsite days and/or services that fall outside of the defined support agreement. Additional services (work-orders) would be inclusive of, but not limited to, additional training, implementation, or consultancy. Any additional services (work-orders) must be approved in writing in advance by the County. Under no circumstances will payment be made for additional services without prior written authorization from the County.

F.

Annual Arezzo software license fee pricing during the initial term (3 years) includes an unlimited number of referrals, the ability to create an unlimited number of SRS guideline forms for use by SMC during the initial term, annual upgrades, version upgrade and enhancement if available, bug fixes and unlimited telephone support. Support is not intended to include consultancy in developing guidelines. The SRS functionality will be included in future version of Arezzo at no additional cost to SMMC.

G.

If, prior to the end of the initial term, SMMC and InferMed agree to extend this Agreement through a written contract amendment, the annual license fee to SMMC during any extended term will not exceed the license fee in this agreement plus a percentage increase equal to the increase in the annual US Consumer price Index (CPI), not to exceed 3% per year.

H.

The term of this Agreement is October 1, 2010 through September 30, 2013. Total Payments for services performed and expenses incurred under this Agreement will not exceed ONE HUNDRED SIXTY NINE THOUSAND, NINE HUNDRED EIGHTY DOLLARS ($169,980), including all reasonable travel expenses. All valid invoices will be approved by the SMMC Chief Medical Officer and paid within 45 days of receipt of invoice.

Exhibit “C”

Statement of Work

Prior to commencing work under this Agreement, both parties shall approve in writing a mutually agreed upon project plan which shall include a project schedule for the tasks described in this Statement of Work (SOW). The project plan shall be kept current throughout the project and any changes approved in writing by both parties.

A,

Installation/Setup of Test Server for Arezzo Web Service

Ensure SMMC test server is available for access to Arezzo Web Service, either locally or remotely. This may involve an installation or update to an existing server. Login credentials will also need to be setup. Timetable: 5 days

B.

Knowledge Transfer (eClinicalWorks/Arezzo Web Service API)

Review of current application and transfer of knowledge about the working of each system. This will involve creation of example scripts and scenarios. This is the preparation work required prior to any project specific development work occurring. Timetable: 6 days

C.

Scoping

Detailed scoping of project work is required. Specification of form work and development as well as any additional development needed for integration will be finalized in this phase. Timetable: 6 days

D.

Form Development and Data Transfer

Form/tool/engine development within the eClinicalWorks product creation of any forms required to access data from the Arezzo Web Service. This will also include the design of the forms to mimic current forms found in the eClinicalWorks application as well as the transfer of data to and from the eClinicalWorks forms and the Arezzo Web Service. Timetable: 20 days

E.

Data Storage/Audit Trail

The Arrezo application stores data required for processing a referral. Removal of this data as required following the completion of the referral requires InferMed to develop new functionality. More detail around this requirement must be provided however, based on what is now known, an estimate of work required is provided here. Should additional work be required an Amendment to this Agreement will be required. Timetable: 10 days

F.

Testing

This will involve any testing carried out to ensure systems are properly configured and services are running properly. Timetable: 6 days

G.

Support and Bug Fixing

Support and bug fixing after and during deployment of system. Timetable: 10 days

Should SMMC request changes or additional services outside the scope of this SOW those services must be approved through an Amendment to this Agreement.