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MEMORANDUM OF UNDERSTANDING
THIS MEMORANDUM OF UNDERSTANDING ("MOU") dated 12/20/2018 is between Upstream USA, Inc.
("Upstream"), a 501(c)(3) non-profit organization formed under the laws of Delaware, and Jefferson County
Public Health ("Organization"), a Washington healthcare organization.
Background
Upstream supports and improves the lives of vulnerable women by providing evidence -based reproductive
health training to health centers across the nation. Increasing access to, and use of, contraception has been
shown to positively affect several social outcomes, including level of educational attainment, economic self-
sufficiency, and overall health of women and families. Upstream's innovative training and technical
assistance program is based on research conducted by renowned reproductive health experts and uses a
system -wide approach to training, quality improvement, and workflow change to affect these social outcomes.
Organization seeks to collaborate with Upstream in order to leverage Upstream's innovative training and
technical assistance program pursuant to the terms herein.
Terms and Conditions
1. Program Content. Organization and Upstream agree to collaborate on the projects and initiatives
set forth in the Schedule(s), set forth under the addendum or addenda attached hereto. Any new projects and
initiatives shall be set forth under additional schedules, as mutually agreed by the parties in writing.
2. Legal Compliance.
a) Organization shall ensure that all actions it performs under this MOU comply with all
applicable state and federal laws and regulations, and Organization shall require the same contractual
commitments from all third parties performing any work under the MOU for Organization, if applicable.
b) Organization represents and warrants that:
i) It is in compliance with all federal, state, and local laws, statutes, regulations,
ordinances, codes, and rules applicable to Organization or the operation of its business and relating
to payment for items or services rendered, provided, or furnished by healthcare providers or suppliers
("Healthcare Laws");
ii) No allegation, investigation, audit, whistleblower, or qui tam action, or any other suit,
action, proceeding, hearing, survey, or inspection, has been made, filed, or commenced or, to the
knowledge of Organization, threatened, involving Organization or its business with respect to any
alleged failure to comply with any Healthcare Law, and to the knowledge of the Organization, there is
no reasonable basis for any such action;
iii) It holds all applicable licenses, permits, certifications, and accreditations that are
reasonably necessary to conduct Organization's business, including Organization's obligations under
this MOU ("Healthcare Permits"); that each Healthcare Permit is and shall be valid and in full force
and effect during the Term of this MOU; that the Organization has remained and will remain in
compliance with the terms of such Healthcare Permits required under any Healthcare Law; and that is
not and has not been subject to any plan of correction, corporate integrity agreement, consent
decree, deferred prosecution agreement, or monitoring by any governmental or regulatory authority,
agency, or commission (in each case, whether federal, state, county, or local) or accreditation
organization, other than through routine licensing inspections or accreditation surveys; and
iv) All individuals who currently provide any professional services to or on behalf of the
Organization or do so during the Term of this MOU who require any certification or license have been
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and are duly certified or licensed, as applicable and in all mrespects, to practice his or her
profession in each applicable jurisdiction.
C) The parties represent and warrant that neither party, nor any of their respective subsidiaries,
directors, officers, employees, or independent contractors has engaged in any activities which are grounds for
civil penalties or mandatory or permissive exclusion from Medicare, Medicaid, or any other Federal Health
Care Program under 42 U.S.C. §§ 1320a-7, 1320a -7a, 1320a -7b, or 1395nn, 18 U.S.C. § 1347, or 1035, or
31 U.S.C. §§ 3729-3733 or the regulations promulgated pursuant to such statutes.
3. Confidentiality.
a) "Confidential Information" for the purpose of this MOU shall mean all confidential, non-public,
and/or proprietary information and trade secrets (whether or not patentable or copyrightable), owned or
possessed by either party ("Disclosing Party") and disclosed by such party to the other party ("Receiving
Party") on or after the date hereof but prior to the expiration or termination of this MOU, including without
limitation, any data processes, computer or software products or programs, personnel data, training curricula,
handouts, slides, activities, speaker's notes, checklists, or other training and technical assistance materials,
provided that Confidential Information shall not include information supplied to Receiving Party which (i) is or
becomes available to the public other than as a result of disclosure by Receiving Party or its agents in
violation of this MOU; (ii) was known to Receiving Party prior to disclosure pursuant to this MOU and was not
otherwise known by Receiving Party to be restricted by contract or law; or (iii) becomes available to Receiving
Party on a non -confidential basis from a third party not known by Receiving Party to be restricted by contract
or law regarding such information. Notwithstanding any other provision of this MOU, Upstream's Confidential
Information shall include (A) the identities of all Upstream donors and funders (collectively, "Funders"), (B) all
information and data that Organization receives directly or indirectly from any Funder, and (C) all information
and data that Organization receives directly or indirectly from any organization that is the recipient of
Upstream's services.
b) Receiving Party shall not disclose or make Disclosing Party's Confidential Information
available, in any form, to any third party or use the Confidential Information for any purpose other than as
specified in this MOU. Receiving Party shall take all reasonable steps to ensure that Confidential Information
is disclosed or distributed to its employees or agents that have a need -to -know basis to complete the
obligations of this MOU. Receiving Party shall use the same care in safeguarding Disclosing Party's
Confidential Information that it uses to protect its own confidential information, which shall in no event be less
than reasonable standard of care.
C) If Confidential Information is requested or required to be disclosed pursuant to court order or
process or by law or regulation, Receiving Party will, to the extent permitted by law or regulation upon the
opinion of Receiving Party's legal counsel: (i) notify Disclosing Party of the request or intended disclosure
immediately upon learning of such request or intended disclosure; (ii) cooperate with Disclosing Party's
reasonable, lawful efforts, to resist, restrict, limit or delay disclosure; and (iii) make disclosure only to the
narrowest extent required to comply with Disclosing Party's obligations.
d) Organization agrees that Upstream shall own all data and measurements that result from this
MOU, including but not limited to the data in the form extracted by Upstream or its Vendor pursuant to this
Agreement. If such data includes Organization's Confidential Information, PII, or Protected Health Information
("PHI"), as that term is defined in 45 CFR § 160.103, Upstream will only publish such Confidential Information
in an aggregated manner with other data so that a third party cannot identify the data as Organization's data
and in a manner that de -identifies PII or PHI in accordance with HIPAA and any other applicable state or
federal law.
a) To the extent any Protected Health Information ("PHI"), as that term is defined under the
Health Insurance Portability and Accountability Act of 1996, as amended, and its implementing regulations
(collectively, "HIPAA"), is provided by Organization pursuant to this MOU, such PHI shall be provided directly
to the data analysis subcontractor selected by Upstream ("Subcontractor").
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b) Organization agrees to execute a HIPAA-compliant Business Associate Agreement ("BAA")
directly with Subcontractor to enable such sharing of PHI. Organization further agrees that it authorizes
Subcontractor to generate and provide aggregate and/or de -identified data and measurements directly to
Upstream on behalf of Organization. Such information shall at all times be fully de -identified consistent with
HIPAA's de -identification safe harbor.
C) The parties agree that Organization shall not, under any circumstances, provide any PHI to
Upstream. Rather, Upstream will only receive aggregate and/or de -identified data and measurements directly
from Subcontractor, as authorized by Organization. Organization agrees that Upstream shall own all
aggregate and/or de -identified measurements that result from this MOU.
5. External Communications.
a) All external communications that make reference to Upstream's involvement with
Organization must first be reviewed and approved by Upstream's Director of Communications. In situations
where Upstream has approved communications, Organization will:
i) Acknowledge the support of Upstream. Whenever reasonable and possible,
Organization will acknowledge Upstream's involvement and will work with Upstream to develop
appropriate language.
ii) Provide Upstream with reasonable advance notice of any significant efforts
Organization undertakes to publicize Upstream's involvement, including (by way of example) press
releases and press conferences.
iii) Make reasonable efforts to comply with requests from Upstream to aid Upstream's
efforts to advance its communications and learning objectives.
iv) Encourage any media representative or other person inquiring about Upstream's
support to contact Upstream's Director of Communications.
b) Organization will also immediately inform Upstream of any media inquiries received related to
Upstream's involvement, and refer any media representative or other person inquiring about Upstream's
support to also contact Upstream's Director of Communications.
6. Indemnification. Each party agrees to indemnify, defend and hold harmless the other party,
including for the Organization its elected and appointed officials, employees, and agents, and for Upstream its
affiliates and Funders and their respective officers, directors, employees, agents and other representatives,
successors and assigns, from and against any and all claims, damages, losses and reasonable expenses,
including but not limited to court costs, reasonable attorney's fees and alternative dispute resolution costs and
damages, which are proven to be caused by an act or omission, negligent or otherwise arising out of or in
connection with that party's performance of work in violation of the applicable terms under this MOU, to the
extent that any such damages are ordered to be paid pursuant to a final, non -appealable judgment of a court
of competent jurisdiction.
A party shall not be required to indemnify, defend, or hold the other party harmless, and the previous
sentence will be no force of effect, if the claim, damage, loss or expense is caused by the other party's
negligence or willful misconduct.
The parties agree to maintain a consolidated defense to claims made against them and to reserve all
indemnity claims against each other until after liability to the claimant and damages, if any, are adjudicated. If
any claim is resolved by voluntary settlement and the parties cannot agree upon apportionment of damages
and defense costs, they shall submit apportionment to binding arbitration. Notwithstanding anything herein to
the contrary, Organization shall in no event enter into any settlement which adversely affects any of
Upstream's rights or interests without Upstream's prior written consent.
(continued on following page)
Memorandum of Understanding 2018 Page 3 of 7
Term and Termination. upstreall]
a) The term of this MOU shall be from 12/20/2018 ("Start Date") through 12/20/2023 ("End
Date") (collectively, the "Term").
b) Either party may terminate this MOU or any Schedule for any reason with or without cause at
any time by giving 30 days' prior written notice to the other party. Upon receipt of such notice, each party will
inform the other party of the extent to which obligations were completed and each party will take steps to wind
down their obligations in an orderly fashion during the notice period. Termination of this MOU shall
automatically terminate all Schedules.
8. Audit. During the Term and for one year after End Date, Upstream may, upon reasonable advance
notice, inspect, audit, or review Organization's activities and records that relate to this Agreement in order to
monitor and verify Organization's compliance with its obligations pursuant to this Agreement. Upstream may
also verify Organization's compliance with its obligations via "secret shopper" phone calls and on-site visits.
9. Insurance.
a) Coverage. Upstream and Organization shall each obtain, at its sole cost and expense, and
maintain insurance during the entirety of the Term of this MOU for the coverage and amounts of coverage not
less than those set forth below and shall, upon request by or on behalf of Upstream, provide certificates to
evidence such coverage:
i) Workers' compensation insurance complying with the law in the state in which
Organization operates;
ii) Employer's liability insurance with a limit of no less than $1,000,000 per accident for
bodily injury or disease;
iii) Commercial general liability insurance written on an occurrence basis, including
products and completed operations, property damage, bodily injury, and personal and advertising
injury, with limits of no less than $1,000,000 each occurrence, covering all insurable obligations or
operations of Organization, and the policy shall not include modifications that reduce the standard
coverage provided under a commercial general liability insurance form;
iv) Business automobile insurance coverage for all owned, non -owned, and hired
automobiles with a combined single limit of $1,000,000 per occurrence for bodily injury and property
damage;
V) Electronic and computer crime (cyber) insurance that provides minimum coverage
limits of $1,000,000 per occurrence. Coverage to extend to claims alleging invasion of privacy
violations, information theft, damage to or destruction of electronic information, release of private
information, alteration of electronic information, extortion, and network security. Coverage to include
breach response costs as well as regulatory fines and penalties as well as credit monitoring
expenses; and
vi) Professional liability (errors and omissions) insurance appropriate to each party's
profession including appropriate medical malpractice coverage, with limit no less than $5,000,000 per
occurrence or claim.
b) Other Insurance Provisions.
i) Additional Insured Status. Organization shall be named as an additional insured on
Upstream's commercial general liability policy. Upstream, its officers, officials, employees, and
volunteers are to be covered as additional insureds on Organization's commercial general lability
policy with respect to liability arising out of work or operations performed by or on behalf of
Organization.
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ii) Primary Coverage. For any claims related to this Agreement, Organization's
insurance shall be primary coverage as respects Upstream, its officers, officials, employees, and
volunteers. Any insurance or self-insurance maintained by Upstream shall be considered excess and
non-contributory.
iii) Waiver of Subrogation. Organization hereby grants to Upstream a waiver of any right
to subrogation which any insurer of Organization may acquire against Upstream. Organization
agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation.
iv) Acceptability of Insurers. For insurance provided by Upstream, insurance is to be
placed with insurers authorized to conduct business in the state in which Upstream operates with a
current A.M. Best's rating of no less than A-, VII. For coverage provided by Organization,
Organization is a member of Washington Counties Risk Pool pursuant to an interlocal agreement as
permitted and regulated under Washington state law Chapter 48.62 RCW to group self -insure for
liability coverage.
V) Special Risks or Circumstances. Each party reserves the right to modify the
foregoing requirements, including limits, based on the nature of the risk, prior experience, or other
special circumstances. Any such modification shall not be effective unless agreed to in writing by
both parties.
10. Order of Precedence. If the terms of any Schedule conflict with the terms of this MOU, this MOU
shall control unless the applicable Schedule expressly states that the conflicting terms control.
11. Miscellaneous Provisions.
a) Neither party shall be responsible for delays or failure in performance resulting from acts
beyond the control of such party, including without limitation, extreme weather, strikes, lockouts, riots, acts of
war, terrorist attacks, epidemics, fire, communication line failures, power surges or failures, earthquakes, or
other disasters.
b) All notices required to be given by or pursuant to this MOU, shall be (i) delivered personally,
(ii) delivered by email to the appropriate email address set forth on the signature page to this MOU provided
receipt is acknowledged by the addressee by email originated by the addressee or other written means, (iii)
by email to the appropriate email address set forth on the signature page to this MOU with a follow-up copy
by overnight courier service the next business day at the location of the addressee, (iv) delivered by U.S.
Registered or Certified Mail, Return Receipt Requested, or (v) delivered for overnight delivery by a nationally
recognized overnight courier service. Such notices and advices shall be deemed to have been given (A) the
first business day following the date of delivery if delivered personally or by email, (B) on the third business
day following the date of mailing if mailed by U.S. Registered or Certified Mail, Return Receipt Requested, or
(C) on the date of receipt if delivered for overnight delivery by a nationally recognized overnight courier
service. All such notices and advices and all other communications related to this MOU shall be given
pursuant to the contact information set forth on the signature page to this MOU or to such other address as
the party may have furnished to the other party in accordance herewith, except that notice of change of
addresses shall be effective only upon receipt. In the case of any notice of termination, default, or claims
given by Organization to Upstream, a copy of such notice shall also be sent to Upstream legal counsel.
C) This MOU is the entire agreement of the parties respecting the subject matter hereof. Any
schedules or other documents referenced herein, attached hereto, and/or which state that they are entered
into pursuant to the terms of this MOU from time to time, are incorporated in full by this reference. There are
no other agreements, representations, or warranties, whether oral or written, respecting the subject matter
between the parties. This MOU may be amended or modified only in writing which has been signed by the
parties hereto and which specifically references this MOU.
d) This is not a third -party beneficiary contract. No person or entity other than a party signing
this MOU shall have any rights under this MOU. Nothing in this MOU shall be construed to create a
Memorandum of Understanding 2018 Page 5 of 7
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partnership or joint venture, nor to authorize any party hereto to act as agent for or representative of any other
party hereto. Each party hereto shall be deemed an independent contractor and no party hereto shall act as,
or hold itself out as acting as, agent for any other party hereto.
e) This MOU, and all the provisions of this MOU, shall be deemed drafted by all the parties
hereto. This MOU shall not be interpreted strictly for or against any party, but solely in accordance with the
fair meaning of the provisions hereof to effectuate the purposes and intent of this MOU. No course of prior
dealings involving any of the parties hereto and no usage of trade shall be relevant or advisable to interpret,
supplement, explain, or vary any of the terms of this MOU, except as expressly provided herein. Each party
hereto has entered into this MOU based solely upon the agreements, representations, and warranties
expressly set forth herein and upon her, his, or its own knowledge and investigation. No party has relied upon
any representation or warranty of any other party hereto except any such representations or warranties as are
expressly set forth herein.
f) It is understood and agreed that this Agreement is entered into in the State of Washington.
This Agreement shall be governed by and construed in accordance with the laws of the United States and the
State of Washington. No party shall argue or assert that any state law other than Washington law applies to
the governance or construction of this Agreement. Should either party bring any legal action, each party in
such action shall bear cost of its own attorney's fees and court costs. The venue for any legal action shall be
solely in the appropriate state or federal court in Washington, subject to the venue provisions actions against
counties in RCW 36.01.050.
g) This MOU may not be assigned by Organization without Upstream's prior written consent
which shall not be unreasonably withheld and if assigned by either party, shall be binding upon and shall inure
to the benefit of the parties and their respective successors and assigns.
h) A party to this MOU may decide or fail to require full or timely performance of any obligation
arising under this MOU. The decision or failure of a party hereto to require full or timely performance of any
obligation arising under this MOU (whether on a single occasion or on multiple occasions) shall not be
deemed a waiver of any such obligation.
I) Time is of the essence with respect to each obligation arising under this MOU. The failure to
timely perform an obligation arising hereunder shall be deemed a failure to perform the obligation.
D In the event any provision of this MOU, or the application of such provision to any person or
set of circumstances, shall be determined to be invalid, unlawful, or unenforceable to any extent for any
reason, the remainder of this MOU, and the application of such provision to persons or circumstances other
than those as to which it is determined to be invalid, unlawful, or unenforceable, shall not be affected and
shall continue to be enforceable to the fullest extent permitted by law.
k) All provisions of this MOU which by their nature extend beyond the termination of this MOU,
including, without limitation Sections 7, 8, 9, and 10, shall survive the termination of this MOU.
1) Each of the persons signing below on behalf of a party represents and warrants that he or
she has full requisite power and authority to execute and deliver this MOU on behalf of the party for whom he
or she is signing and to bind such party to the terms and conditions of this MOU.
m) This MOU may be executed in counterparts, each of which shall be deemed an original and
may be executed and delivered by a digitized transmission of a counterpart signature page.
(signatures to follow on next page)
Memorandum of Understanding 2018 Page 6 of 7
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IN WITNESS WHEREOF, the parties have executed this MOU as of the date first above written.
UPSTREAM USA, INC.: JEFFER401J COUNTY PUBLIC HEALTH:
i�� f------^~ (Signature)
(Si to Name: -t'Kit ..L� ��,
`/
Name: Jennifer Klatt Title: Chair, Jefferson County Board of Commissioners
Title: CFO Date:
Date: ! t
Contact Information for Notice Purposes:
Address: 615 Sheridan Street,
Address: 1630 San Pablo Avenue, Suite 400 Port Townsend, Washington 98368
Oakland, CA 94612 Attention: Vicki Kirkpatrick
Attention: Contracts Email: vkirkpatrick@co.jefferson.wa.us
Email: contracts@upstream.org Phone: (360) 385-9408
Phone: (510) 918-9723
ATTEST f.
By d ttf --
Carolyn Gall ay, Deputy Cle of the Board
AP PROVD AS T O ONLY:
B
Philip Hunsu er, Chief Civil Deputy Prosecuting Attorney
Memorandum of Understanding 2018 Page 7 of 7
615 Sheridan Street
Port Townsend, WA 98368
www.JeffersonCountyPublicHealth.org
Public Health
Consent Agenda
December 21, 2018
JEFFERSON COUNTY
BOARD OF COUNTY COMMISSIONERS
AGENDA REQUEST
TO: Board of County Commissioners
Philip Morley, County Administrator
FROM: Vicki Kirkpatrick, JCPH Director
DATE:
SUBJECT: UPSTREAM MOU/Business Associate Agreement
STATEMENT OF ISSUE:
UPSTREAM will provide a review of our Family Planning program to include clinic operations and
inventory management. Baseline data will be collected and a needs assessment completed to
refine the focus of the technical assistance. This technical assistance and Quality Improvement
project will be provided at no cost to Jefferson County Public Health. What UPSTREAM will provide
includes, but is not limited to:
• Financial Support to JCPH Family Planning for meeting milestones or to reduce patient
costs. The amount will be determined during the needs assessment.
• Providing a quality improvement team to partner with JCPH to deliver technical assistance
to meet Family Planning goals for contraceptive care
• Providing a CME/CEU level training to JCPH staff and providers
• Covering the subscription costs for a 5 -year subscription to Azara Health's data platform
valued at $70,000 (Azara is the data organization with whom the Business Associate
Agreement is written to allow data sharing and meeting HIPAA requirements). The
subscription will give us access to data and analysis regarding clinic effectiveness and
inventory efficiency.
ANALYSIS/ STRATEGIC GOALS/PRO'S and CON'S:
JCPH has been selected as one of four family planning programs forming the latest cohort of FP
programs to receive the TA/QI services from UPSTREAM. It is an opportunity that will provide for
improvements around goals of cost savings, client service enhancement, and inventory
management to ensure timely access to contraceptive methods.
Community Health Environmental Public Health
Developmental Disabilities 360-385-9444
360-385-9400 (f) 360-379-4487
360-385-9401 (f) Always working for a safer and healthier community
is Hea
615 Sheridan Street
Port Townsend, WA 98368
www.JeffersonCountyPublicHealth.org
Consent Agenda
FISCAL IMPACT/COST BENEFIT ANALYSIS:
The services provided to the Family Planning program is provided at no cost to JCPH, will provide
for quality improvement and, assuming JCPH Family Planning program meets milestones, will
provide for incentive funds that can be used to stabilize inventory and improve access.
RECOMMENDATIOS:
Approve the MOU with UPSTREAM and the Business Associate Agreement with Azara.
REVIEWED BY:
Philip Morle unty Administrator
Community Health
Developmental Disabilities
360-385-9400
360-385-9401 (f)
Date
Always working for a safer and healthier community
Environmental Public Health
360-385-9444
(f) 360-379-4487
CONTRACT REVIEW FORM f $�
CONTRACT WITH: MOU with UPSTREAM and Services Agreement and Business Associate
Agreement with Azara necessary to MOU with UPSTREAM
CONTRACT FOR: Technical Assistance, Evaluation and Quality TERM: 6/22/2018 — 6/22/2023
Improvement project for Family Planning
Program
OR-ECE11"
IV t�
COUNTY DEPARTMENT:
Public Health
SSP '13 261
For More Information Contact:
Vicki Kirkpatrick
Contact Phone #:
X408 mr-r-COR-nN COUNTY
TO:
BY: WUNIUMUR&
RETURN Jenny Matter
RETURN
(Person in Department)
(Date)
AMOUNT: No Cost to JCPH
PROCESS: Exempt from Bid Process
Consultant Selection Process
Revenue:
Cooperative Purchase
Expenditure:
Competitive Sealed Bid
Matching Funds Required:
Small Works Roster
Sources(s) of Matching Funds
Vendor List Bid
RFP or RFQ /
X Other— z---) ,�, // / G/�/q
Step 1: REVIEW BY R S M f6!
Review by:
Date Reyi we��
�
APPROVED FORM
Returned for revision (See Comments)
Comments
Step 2: REVIEW BY PR7ECU ATTORNEY
Review by:
U, C
Date Reviewed:
APPO&VEDAS TO FORM
Returned for revisi n (See Comments)
Comments k of ^
V M rt:112
ZL�
C
4 84A c
e61A W wtl' 4Th
Step 3: v (If required) 15EPARTMENT MAKES REVISIONS & --.1 SUBMITS TO RISK
MANAGEMENT AND PROSECUTING ATTORNEY
Step 4: CONTRACTOR/CONSULTANT SIGNS APPROPRIATE NUMBER OF ORIGINALS
Step 5: SUBMIT TO BOCC FOR APPROVAL
Submit originals and 6 copies of Contract and Review Form with Agenda Bill to BOCC Office.
Place "Sign Here" markers on all places the BOCC needs to sign.
MUST be in BOCC Office by 4:30 p.m. TUESDAY for the following Monday's agenda.
(This form to stay with contract throughout the contract review process.)
Mutual Indemnification Language proposed by County
6. Indemnification. To the extent of its comparative liability, each party agrees to
indemnify, defend and hold harmless the other party, including for the Organization its
elected and appointed officials, employees, agents and volunteers, and for Upstream its
affiliates and Funders and their respective officers, directors, employees, agents and
other representatives, successors and assigns, from and against any and all claims,
damages, losses and expenses, including but not limited to court costs, attorney's fees
and alternative dispute resolution costs, which are alleged or proven to be caused by an
act or omission, negligent or otherwise arising out of or in connection with that party's
performance of work under this MOU.
A party shall not be required to indemnify, defend, or hold the other party harmless if the
claim, damage, loss or expense is caused by the sole act or omission of the other party.
In the event of any concurrent act or omission of the Parties, negligent or otherwise,
these indemnity provisions shall be valid and enforceable only to the extent of each
party's comparative liability.
The parties agree to maintain a consolidated defense to claims made against them and
to reserve all indemnity claims against each other until after liability to the claimant and
damages, if any, are adjudicated. If any claim is resolved by voluntary settlement and the
parties cannot agree upon apportionment of damages and defense costs, they shall
submit apportionment to binding arbitration.
Tracked Changes to Insurance Language proposed by County
9. Insurance.
a) Coverage. Upstream and Organization shall obtain, at its sole cost
and expense, and maintain insurance during the entirety of the Term of this MOU for the
coverage and amounts of coverage not less than those set forth below and shall ,
Fequest by er on behalf of Upstream, provide certificates to evidence such coverage:
i) Workers' compensation insurance complying with the law in the state in
which Organization operates;
ii) Employer's liability insurance with a limit of no less than $ 1, 000,000
per accident for bodily injury or disease;
iii) Commercial general liability insurance written on an occurrence basis,
including products and completed operations, property damage, bodily injury,
and personal and advertising injury, with limits of no less than $ 1, 000,000 each
occurrence, covering all insurable obligations or operations of Organization, and
the policy shall not include modifications that reduce the standard coverage
provided under a commercial general liability insurance form;
iv) Business automobile insurance coverage for all owned, non- owned,
and hired automobiles with a combined single limit of$ 1, 000,000 per occurrence
for bodily injury and property damage;
v) Electronic and computer crime (cyber) insurance that provides minimum
coverage limits of $ 12000,0001,000,000 per occurrence. Coverage to extend to
claims alleging invasion of privacy violations, information theft, damage to or
destruction of electronic information, release of private information, alteration of
electronic information, extortion, and network security. Coverage to include
breach response costs as well as regulatory fines and penalties as well as credit
monitoring expenses; and
vi) Professional liability (errors and omissions) insurance appropriate to
each party'sGrganizatie profession including appropriate medical malpractice
coverage, with limit no less than $5,000,000 per occurrence or claim.
b) Other Insurance Provisions.. OF@laRizati^r,' c insuraRGe P01inies aro to
i) Additional Insured Status. Organization shall be named as an additional
insured on Upstream's commercial general liability policy."nom+roam its nffinorc
OffiGials, employees, and volunteers are to be GeVR_-FR_d a46 -Additie—n-al insureds on
the GOMmeFGial general liability PGI*GY with respeGt te liability arising out of w
eF eperatiens performed by OF GR behalf of Organization.
ii\ Primary Gevor�y imc Felate J to this Agreement,
QrganizatiGRr
+vii) Acceptability of Insurers. For insurance provided by Upstream,
nsurance is to be placed with insurers authorized to conduct business in the
state in which Upstream operates with a current A.M. Best' s rating
of no less than A-, VII, unless oth�ptable to Upstream. For coverage
Provided by Organization, Organization is a member of Washington Counties
Risk Pool pursuant to an interlocal agreement as permitted and regulated under
Washington State law Chapter 48.62 RCW to group self -insure for liability
coverage.
viii) Special Risks or Circumstances. LJpstreamEach party reserves the right
to modify the foregoing requirements, including limits, based on the nature of the
risk, prior experience, or other special circumstances.
Philip Morley
From: Philip Morley
Sent: Tuesday, December 11, 2018 3:56 PM
To: Vicki Kirkpatrick(VKirkpatrick@cojefferson.wa.us)
Cc: Philip Hunsucker; Jenny Matter; Julie Shannon
Subject: FW: Review of Insurance Provisions in proposed contract w/ Upstream Inc.
Attachments: Upstream edits 2018.docx
Vicki, please see the email exchange below with Derek Bryan, Executive Director of Washington Counties Risk Pool, and
also Jill Lowe of WCRP regarding changes WCRP has requested to the Upstream contract.
Attached is revised language for you to propose to Upstream.
Philip
Philip Morley
Jefferson County Administrator
pmorley@co.jefferson.wa.us
(360) 385-9100 x-383
This is a reminder that oil email to or from this email address may be subject to the Public Records Act contained in RCW
42.56. Additionally, all email to and from the county is captured and archived by Information Services.
From: Derek Bryan <Derek@wcrp.wa.gov>
Sent: Friday, December 7, 2018 9:53 AM
To: Philip Morley <pmorley@co.jefferson.wa.us>
Subject: RE: Review of Insurance Provisions in proposed contract w/ Upstream Inc.
Philip -
I wasn't aware we have the Cyber coverage in the amount they list;
You're correct, the cyber coverage the County has through the WCRP has a $1M per occurrence
limit. Good catch!
Why do we want to eliminate the waiver of subrogation?
Waiving subrogation means that if the County, their Risk Pool, or their insurers, pay for damages
that Upstream was responsible, or at fault for, you have waived all of our ability to pursue
recovery from them. This is common in a contract where both parties agree to it, but we don't
recommend you be the only party to do so in the contract.
Why do we want to eliminate that our insurance is primary — in the sense that when we are writing a contract,
we ask that of the other party, so why not them of us?
This contract is very much as if Upstream is doing the County a favor and provided you with a
one-sided contract putting financial responsibility on the County. The WCRP understands that
there are times the County needs services and needs to contract with other parties for services,
but we encourage counties to stand firm and take control of the contract. If Upstream wants to
do business with the County they should agree to the County's contract language, insurance
requirements, and should protect the County from unnecessary risk and financial obligation. If a
claim or suit is brought against Upstream and the County, and Upstream was negligent, why
would we want to be primary? Upstream should be primary.
I think that Jill, and I, feel that this is a bit of a one-sided contract very favorable to
Upstream. The County should respond by asking Upstream to agree to Jefferson County's terms
as well.
Let me know what you think and if you want to visit.
Thank you,
Derek Bryan
Executive Director
Washington Counties Risk Pool
Office (360) 292-4500
Direct Line (360) 292-4497
Mobile (360) 280-6649
Disclaimer: Pursuant to the Washington State Public Records Act (RCW 42.56), this e-mail may be considered subject to disclosure to
a third -party requestor, or may otherwise be protected as attomey/client or worts product. If you believe you have received this
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From: Philip Morley <pmorley@co.jefferson.wa.us>
Sent: Friday, December 7, 2018 9:19 AM
To: Derek Bryan <Derek@wcrp.wa.gcy
Subject: FW: Review of Insurance Provisions in proposed contract w/ Upstream Inc.
Derek, see Jill's reply to my original ask for review, and my follow up questions, below.
Philip
Philip Morley
Jefferson County Administrator
pmorley@co.jefferson.wa.us
(360) 385-9100 x-383
This is a reminder that all email to or from this email address may be subject to the Public Records Act contained in RCW
42.56. Additionally, all email to and from the county is captured and archived by Information Services.
From: Philip Morley
Sent: Friday, December 7, 2018 7:05 AM
To:'Jill Lowe' <JilI@wcrp.wa.gov>
Cc: Vicki Kirkpatrick<VKirkpatrick@co.iefferson.wa.us>; Julie Shannon <JShannon@co.jefferson.wa.us>
Subject: RE: Review of Insurance Provisions in proposed contract w/ Upstream Inc.
Jill, thank you! Are you available to speak today? I have a few questions:
• 1 wasn't aware we have the Cyber coverage in the amount they list;
Why do we want to eliminate the waiver of subrogation?
Why do we want to eliminate that our insurance is primary — in the sense that when we are writing a contract,
we ask that of the other party, so why not them of us?
I'll ask for mutual indemnification, as you suggest.
Are there times you are available today?
Philip
Philip Morley
Jefferson County Administrator
pmorley@co.iefferson.wa.us
(360) 385-9100 x-383
This is a reminder that all email to or from this email address may be subject to the Public Records Act contained in RCW
42.56. Additionally, all email to and from the county is captured and archived by Information Services.
From: Jill Lowe <Jill�wcrp.wa.gov>
Sent: Thursday, December 6, 2018 2:50 PM
To: Philip Morley <pmorley@co.iefferson.wa.us>
Cc: Vicki Kirkpatrick <VKirkpatrick(@co jefferson.wa.us>; Julie Shannon <JShannon@co.iefferson.wa.us>
Subject: FW: Review of Insurance Provisions in proposed contract w/ Upstream Inc.
Philip,
Thanks for giving WCRP the opportunity to review the insurance provisions in the attached contract with Upstream. To
answer your primary concern regarding coverage, the WCRP and its reinsurers meet the coverage levels and types
requested, subject to all of the terms, conditions, exclusions, definitions and limits of liability in the current WCRP
Memorandum of Liability Coverage (MLC) document.
Please note that WCRP does not provide Workers Compensation coverage. Also, as a member of WCRP, the County is
part of an interlocal agreement as permitted under RCW 48.62 to group self -insure for liability coverage. While we are
unable to list Upstream as an additional insured, we can provide a certificate of coverage.
I am glad to hear that Upstream is willing to consider alternative language. WCRP recommends that changes be made to
the Indemnification section. We recommend that the County change "Organization" to read "Upstream" and
"Upstream" to read "County". If Upstream is unwilling to agree to this change, a second paragraph should be added
allowing for mutual indemnification. Mutual indemnification will eliminate the need for the County to agree to Primary
coverage as listed in Section 9. Insurance b) II). (WCRP recommends eliminating the Primary Coverage section.)
Finally, WCRP recommends eliminating the Waiver of Subrogation language.
If you have any questions, please don't hesitate to let me know. Take care and enjoy the holidays. Jill
Jill Lowe : Loss Control : Washington Counties Risk Pool
2558 R.W. Johnson Rd. SW Suite 106 : Tumwater WA 98512
Office: 360.292.4492 : Cell: 360.701.6059
Disclaimer: Public documents and records are available to the public as provided under the Washington State Public
Records Act (RCW 42.56). This e-mail may be considered subject to the Public Records Act and may be disclosed to a
third -party requestor.
Communications concerning this matter, including this email and any attachments, are provided for purposes of risk
management consulting. Opinions and advice provided by the Washington Counties Risk Pool are not intended to be,
and should not be construed to be, legal advice. Please direct any request for legal advice to your attorney.
From: Philip Morley <prmorley@co.jefferson.wa.us>
Sent: Thursday, December 06, 2018 10:23 AM
To: Jill Lowe <Jill@wcrp.wa.gov>
Cc: Vicki Kirkpatrick<VKirkpatrick@co.jefferson.wa.us>; Julie Shannon <JShannon@co.jefferson.wa.us>
Subject: Review of Insurance Provisions in proposed contract w/ Upstream Inc.
Jill, I am reviewing a contract with Upstream USA Inc. a 501c3 nonprofit. Under the MOU, Upstream is providing
Jefferson County technical assistance for quality improvement of Jefferson County's Family Planning Program through
our Public Health Department.
Would you please review the enclosed pdf of Upstream's requested insurance provisions, and let me know if our
coverages with WCRP cover the listed requirements, and whether the provisions as drafted fit in the context of our
membership and coverages through a risk pool. Among other coverages, they are asking for electronic and computer
crime (cyber) insurance with minimum coverage of $12Million per occurrence, Employer's liability insurance of $1Million
or more, and medical malpractice for at least $5Mi►lion. I am informed that Upstream is willing to consider alternative
language we may propose.
A 2nd pdf has the complete text of the MOU, just fyi.
Philip
Philip Morley
Jefferson County Administrator
pmorley@co.iefferson.wa.us
(360) 385-9100 x-383
This is a reminder that all email to or from this email address may be subject to the Public Records Act contained in RCW
42.56. Additionally, all email to and from the county is captured and archived by Information Services.
upstream..
MEMORANDUM OF UNDERSTANDING
THIS MEMORANDUM OF UNDERSTANDING ("MOU") dated 06/22/2018 is between Upstream USA, Inc.
("Upstream"), a 501(c)(3) non-profit organization formed under the laws of Delaware, and Jefferson County
Public Health ("Organization"), a Washington healthcare organization.
Background
Upstream supports and improves the lives of vulnerable women by providing evidence -based reproductive
health training to health centers across the nation. Increasing access to, and use of, contraception has been
shown to positively affect several social outcomes, including level of educational attainment, economic self-
sufficiency, and overall health of women and families. Upstream's innovative training and technical
assistance program is based on research conducted by renowned reproductive health experts and uses a
system -wide approach to training, quality improvement, and workflow change to affect these social outcomes.
Organization seeks to collaborate with Upstream in order to leverage Upstream's innovative training and
technical assistance program pursuant to the terms herein.
Terms and Conditions
1. Program Content. Organization and Upstream agree to collaborate on the projects and initiatives
set forth in the Schedule(s), set forth under the addendum or addenda attached hereto. Any new projects and
initiatives shall be set forth under additional schedules, as mutually agreed by the parties in writing.
2. Legal Compliance.
a) Organization shall ensure that all actions it performs under this MOU comply with all (�I
applicable state and federal laws and regulations, and Organization shall require the same contractual 1
commitments from all third parties performing any work under the MOU for Organization, if applicable.
b) Organization represents and warrants that:
i) It is in compliance with all federal, state, and local laws, statutes, regulations,
ordinances, codes, and rules applicable to Organization or the operation of its business and relating
to payment for items or services rendered, provided, or furnished by healthcare providers or suppliers
("Healthcare Laws");
ii) No allegation, investigation, audit, whistleblower, or qui tam action, or any other suit,
action, proceeding, hearing, survey, or inspection, has been made, filed, or commenced or, to the
knowledge of Organization, threatened, involving Organization or its business with respect to any
alleged failure to comply with any Healthcare Law, and to the knowledge of the Organization, there is
no reasonable basis for any such action,
iii) It holds all applicable licenses, permits, certifications, and accreditations that are
reasonably necessary to conduct Organization's business, including Organization's obligations under
this MOU ("Healthcare Permits"); that each Healthcare Permit is and shall be valid and in full force
and effect during the Term of this MOU, that the Organization has remained and will remain in
compliance with the terms of such Healthcare Permits required under any Healthcare Law, and that is
not and has not been subject to any plan of correction, corporate integrity agreement, consent
decree, deferred prosecution agreement, or monitoring by any governmental or regulatory authority,
agency, or commission (in each case, whether federal, state, county, or local) or accreditation
organization, other than through routine licensing inspections or accreditation surveys, and
iv) All individuals who currently provide any professional services to or on behalf of the
Organization or do so during the Term of this MOU who require any certification or license have been
Memorandum of Understanding 2018 Page 1 of 7
upstream:.
and are duly certified or licensed, as applicable and in all mrespects, to practice his or her
profession in each applicable jurisdiction.
C) The parties represent and warrant that neither party, nor any of their respective subsidiaries,
directors, officers, employees, or independent contractors has engaged in any activities which are grounds for
civil penalties or mandatory or permissive exclusion from Medicare, Medicaid, or any other Federal Health
Care Program under 42 U.S.C. §§ 1320a-7, 1320a -7a, 1320a -7b, or 1395nn, 18 U.S.C. § 1347, or 1035, or
31 U.S.C. §§ 3729-3733 or the regulations promulgated pursuant to such statutes.
3. Confidentiality.
a) "Confidential Information" for the purpose of this MOU shall mean all confidential, non-public,
and/or proprietary information and trade secrets (whether or not patentable or copyrightable), owned or
possessed by either party ("Disclosing Party") and disclosed by such party to the other party ("Receiving
Party") on or after the date hereof but prior to the expiration or termination of this MOU, including without
limitation, any data processes, computer or software products or programs, personnel data, training curricula,
handouts, slides, activities, speaker's notes, checklists, or other training and technical assistance materials,
provided that Confidential Information shall not include information supplied to Receiving Party which (i) is or
becomes available to the public other than as a result of disclosure by Receiving Party or its agents in
violation of this MOU; (ii) was known to Receiving Party prior to disclosure pursuant to this MOU and was not
otherwise known by Receiving Party to be restricted by contract or law; or (iii) becomes available to Receiving
Party on a non -confidential basis from a third party not known by Receiving Party to be restricted by contract
or law regarding such information. Notwithstanding any other provision of this MOU, Upstream's Confidential
Information shall include (A) the identities of all Upstream donors and funders (collectively, "Funders"), (B) all
information and data that Organization receives directly or indirectly from any Funder, and (C) all information
and data that Organization receives directly or indirectly from any organization that is the recipient of
Upstream's services.
b) Receiving Party shall not disclose or make Disclosing Party's Confidential Information
available, in any form, to any third party or use the Confidential Information for any purpose other than as
specified in this MOU. Receiving Party shall take all reasonable steps to ensure that Confidential Information
is disclosed or distributed to its employees or agents that have a need -to -know basis to complete the
obligations of this MOU. Receiving Party shall use the same care in safeguarding Disclosing Party's
Confidential Information that it uses to protect its own confidential information, which shall in no event be less
than reasonable standard of care.
C) If Confidential Information is requested or required to be disclosed pursuant to court order or
process or by law or regulation, Receiving Party will, to the extent permitted by law or regulation upon the
opinion of Receiving Party's legal counsel: (i) notify Disclosing Party of the request or intended disclosure
immediately upon learning of such request or intended disclosure; (ii) cooperate with Disclosing Party's
reasonable, lawful efforts, to resist, restrict, limit or delay disclosure; and (iii) make disclosure only to the
narrowest extent required to comply with Disclosing Party's obligations.
d) Organization agrees that Upstream shall own all data and measurements that result from this
MOU, including but not limited to the data in the form extracted by Upstream or its Vendor pursuant to this
Agreement. If such data includes Organization's Confidential Information, PII, or Protected Health Information
("PHI"), as that term is defined in 45 CFR § 160.103, Upstream will only publish such Confidential Information
in an aggregated manner with other data so that a third party cannot identify the data as Organization's data
and in a manner that de -identifies PII or PHI in accordance with HIPAA and any other applicable state or
federal law.
4. HIPAA.
a) To the extent any Protected Health Information ("PHI"), as that term is defined under the
Health Insurance Portability and Accountability Act of 1996, as amended, and its implementing regulations
(collectively, "HIPAA"), is provided by Organization pursuant to this MOU, such PHI shall be provided directly
to the data analysis subcontractor selected by Upstream ("Subcontractor").
Memorandum of Understanding 2018 Page 2 of 7
upstream
b) Organization agrees to execute a HIPAA-compliant Business Associate Agreement ("BAA")
directly with Subcontractor to enable such sharing of PHI. Organization further agrees that it authorizes
Subcontractor to generate and provide aggregate and/or de -identified data and measurements directly to
Upstream on behalf of Organization. Such information shall at all times be fully de -identified consistent with
HIPAA's de -identification safe harbor.
C) The parties agree that Organization shall not, under any circumstances, provide any PHI to
Upstream. Rather, Upstream will only receive aggregate and/or de -identified data and measurements directly
from Subcontractor, as authorized by Organization. Organization agrees that Upstream shall own all
aggregate and/or de -identified measurements that result from this MOU.
5. External Communications.
a) All external communications that make reference to Upstream's involvement with
Organization must first be reviewed and approved by Upstream's Director of Communications. In situations
where Upstream has approved communications, Organization will:
i) Acknowledge the support of Upstream. Whenever reasonable and possible,
Organization will acknowledge Upstream's involvement and will work with Upstream to develop
appropriate language.
ii) Provide Upstream with reasonable advance notice of any significant efforts
Organization undertakes to publicize Upstream's involvement, including (by way of example) press
releases and press conferences.
iii) Make reasonable efforts to comply with requests from Upstream to aid Upstream's
efforts to advance its communications and learning objectives.
iv) Encourage any media representative or other person inquiring about Upstream's
support to contact Upstream's Director of Communications.
b) Organization will also immediately inform Upstream of any media inquiries received related to
Upstream's involvement, and refer any media representative or other person inquiring about Upstream's
support to also contact Upstream's Director of Communications.
6. Indemnification. gach party agrees to indemnify. defend and hold harmless the other party- -
including for the Organization its elected and appointed officials, employees, and agents and for Upstream its _
affiliates and Funders and their respective officers. directors. employees, agents and other representatives,
successors and assigns, from and against any and all claims, damages. losses and teasonable expenses.
including but not limited to court costs reasonable attorney's fees and alternative dispute resolution costsa0d
damages. which are proven to be caused by an act or omission, negligent or otherwise arising out of or in
connection with that party's performance of work in violation of the applicable terms under this MOU oto the
extent that any such damages are ordered to be paid pursuant to a final, non -appealable iudgment of a court
of competent iurisdidion.
A party shall not be required to indemnify. defend, or hold the other party harmless. and the previous
sentence will be no force of effect if the claim, damage loss or expense is caused by the ether party's
negligence or willful misconduct.
!Deleted third paragraph]
6: The parties agree to maintain a consolidated defense to claims made against them and to reserve ails
indemnity claims against each other unfil after liability to the claimant and damages if any, are adjudicated If
any claim is resolved by voluntary settlement and the parties cannot agree upon apportionment of damages
and defense costs, they shall submit apportionment to binding arbitration. ftotwdhstanding anything herein to
the contrary. Organization shall in no event enter into any settlement which adversely affects any of
Upstream's rights or interests without Upstream's prior written consent. ,
Memorandum of Understanding 2018 Page 3 of 7
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upstream..
defend, and indemnify UpstFeam and its affiliates and stenk
vAtteR sonsent, mobiGh Upstream shall not unfeasenably withheld, wndition, OF delay any and all liability, loss, damage, expe g without limitalJOR, litigation) Of
eveFy RatuFe arising 064 Of OF OR GOA n's peFfennanGe of wo* heFeundeF OF its failure to
oemply with any of its obligations Gentained this, MOU, exGept suGh less eF damage whirsh was Gaused by
M nvestigation or disposition of any elaim arising out of the aetivities of this MOU. OFganizatien shall FeimbuFse
�------------------ _---- _---------- Formatted: Font: Not Bold
Term and Termination.
a) The term of this MOU shall be from 06/22/2018 ("Start Date") through 06/22/2023 ("End
Date") (collectively, the "Term").
b) Either party may terminate this MOU or any Schedule for any reason with or without cause at
any time by giving 30 days' prior written notice to the other party. Upon receipt of such notice, each party will
inform the other party of the extent to which obligations were completed and each parry will take steps to wind
down their obligations in an orderly fashion during the notice period. Termination of this MOU shall
automatically terminate all Schedules.
8. Audit. During the Term and for one year after End Date, Upstream may, upon reasonable advance
notice, inspect, audit, or review Organization's activities and records that relate to this Agreement in order to
monitor and verify Organization's compliance with its obligations pursuant to this Agreement. Upstream may
also verify Organization's compliance with its obligations via "secret shopper" phone calls and on-site visits.
Insurance.
a) Coverage. Upstream and Organization shall each obtain, at its sole cost and expense, and
maintain insurance during the entirety of the Term of this MOU for the coverage and amounts of coverage not
less than those set forth below and shall, upon request by or on behalf of Upstream, provide certificates to
evidence such coverage:
i) Workers' compensation insurance complying with the law in the state in which
Organization operates;
ii) Employer's liability insurance with a limit of no less than $1,000,000 per accident for
bodily injury or disease;
iii) Commercial general liability insurance written on an occurrence basis, including
products and completed operations, property damage, bodily injury, and personal and advertising
injury, with limits of no less than $1,000,000 each occurrence, covering all insurable obligations or
operations of Organization, and the policy shall not include modifications that reduce the standard
coverage provided under a commercial general liability insurance form,
iv) Business automobile insurance coverage for all owned, non -owned, and hired
automobiles with a combined single limit of $1,000,000 per occurrence for bodily injury and property
damage;
V) Electronic and computer crime (cyber) insurance that provides minimum coverage
limits of $1:000,000 424)0G,4)Q"er occurrence. Coverage to extend to claims alleging invasion of
privacy violations, information theft, damage to or destruction of electronic information, release of
private information, alteration of electronic information, extortion, and network security. Coverage to
include breach response costs as well as regulatory fines and penalties as well as credit monitoring
expenses; and
Memorandum of Understanding 2018 Page 4 of 7
upstream:.
vi) Professional liability (errors and omissions) insurance appropriate to Organization's
each party's profession including appropriate medical malpractice coverage, with limit no less than
$5,000,000 per occurrence or claim.
b) Other Insurance Provisions. Organization's insuranee paliGies are to oontain, 9F be
endorsed to , the .
i) Additional Insured Status.
. rganization shall
be named as an additional insured on Upstream's commercial general liability policy. Vipstream its ------ Formatted: Highlight
officers, officials. employees. and volunteers are to be covered as additional insureds on
Oroanization's commercial general lability policy with respect to liability arising out of work or
operations performed by or on behalf of Organization.
ii) Primary_ Coveraga. For any_ claims _ related_ to_ this Agreement, Organization's ------- Formatted: Highlight
insurance shall be primary coverage as respects Upstream, its officers, officials, employees, and
volunteers. Any insurance or self-insurance maintained by Upstream shall be considered excess and
non-contributory.
iii) Waiver of Subrogation. Organization hereby grants to Upstream a waiver of any right
to subrogation which any insurer of Organization may acquire against Upstream. Organization
agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation.
iv) Acceptability of Insurers. Ifor insurance provided by Upstream, insurance is to be
placed with insurers authorized to conduct business in the state in which Organizaikw--Upstream
operates with a current A.M. Best's rating of no less than A-, VII, unless ethepwise aceeptable to
Uostfeam.. For coverage provided by Organization. Organization is a member of Washington
Counties Risk Pool pursuant to an interlocal agreement as permitted and regulated under
Washington state law Chapter 48.62 RCW to group self -insure for liability coverage.
V) Special Risks or Circumstances. Uystrearn-Each party reserves the right to modify
the foregoing requirements, including limits, based on the nature of the risk, prior experience, or other
special circumstances.. Any such modification shall not be effective unless nregd to in writing by _ --- Formatted: Font: Not Bold
both parties. --
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10. Order of Precedence. If the terms of any Schedule conflict with the terms of this MOU, this MOU
shall control unless the applicable Schedule expressly states that the conflicting terms control.
11. Miscellaneous Provisions.
a) Neither party shall be responsible for delays or failure in performance resulting from acts
beyond the control of such party, including without limitation, extreme weather, strikes, lockouts, riots, acts of
war, terrorist attacks, epidemics, fire, communication line failures, power surges or failures, earthquakes, or
other disasters.
b) All notices required to be given by or pursuant to this MOU, shall be (i) delivered personally,
(ii) delivered by email to the appropriate email address set forth on the signature page to this MOU provided
receipt is acknowledged by the addressee by email originated by the addressee or other written means, (iii)
by email to the appropriate email address set forth on the signature page to this MOU with a follow-up copy
by overnight courier service the next business day at the location of the addressee, (iv) delivered by U.S.
Registered or Certified Mail, Return Receipt Requested, or (v) delivered for overnight delivery by a nationally
recognized overnight courier service. Such notices and advices shall be deemed to have been given (A) the
first business day following the date of delivery if delivered personally or by email, (B) on the third business
day following the date of mailing if mailed by U.S. Registered or Certified Mail, Return Receipt Requested, or
(C) on the date of receipt if delivered for overnight delivery by a nationally recognized overnight courier
Memorandum of Understanding 2018 Page 5 of 7
upstream..
service. All such notices and advices and all other communications related to this MOU shall be given
pursuant to the contact information set forth on the signature page to this MOU or to such other address as
the party may have furnished to the other party in accordance herewith, except that notice of change of
addresses shall be effective only upon receipt. In the case of any notice of termination, default, or claims
given by Organization to Upstream, a copy of such notice shall also be sent to Upstream legal counsel.
C) This MOU is the entire agreement of the parties respecting the subject matter hereof. Any
schedules or other documents referenced herein, attached hereto, and/or which state that they are entered
into pursuant to the terms of this MOU from time to time, are incorporated in full by this reference. There are
no other agreements, representations, or warranties, whether oral or written, respecting the subject matter
between the parties. This MOU may be amended or modified only in writing which has been signed by the
parties hereto and which specifically references this MOU.
d) This is not a third -party beneficiary contract. No person or entity other than a party signing
this MOU shall have any rights under this MOU. Nothing in this MOU shall be construed to create a
partnership or joint venture, nor to authorize any party hereto to act as agent for or representative of any other
party hereto. Each party hereto shall be deemed an independent contractor and no party hereto shall act as,
or hold itself out as acting as, agent for any other party hereto.
e) This MOU, and all the provisions of this MOU, shall be deemed drafted by all the parties
hereto. This MOU shall not be interpreted strictly for or against any party, but solely in accordance with the
fair meaning of the provisions hereof to effectuate the purposes and intent of this MOU. No course of prior
dealings involving any of the parties hereto and no usage of trade shall be relevant or advisable to interpret,
supplement, explain, or vary any of the terms of this MOU, except as expressly provided herein. Each party
hereto has entered into this MOU based solely upon the agreements, representations, and warranties
expressly set forth herein and upon her, his, or its own knowledge and investigation. No party has relied upon
any representation or warranty of any other party hereto except any such representations or warranties as are
expressly set forth herein.
f)
reasonableaccountants and experts, net other expenses incidental to the I tigat o . t is understood
and agreed that this Agreement is entered into in the State of Washington This Agreement shall be
governed by and construed in accordance with the laws of the United States qnd the State of Washington
No party shall argue or assert that any state law other than Washington law applies to the governance or
construction of this Agreement. Should either party bring any legal action, each party in such action shall
bear cost of its own attorney's fees and court costs. The venue for any legal action shall be solely in the
appropriate state pr federal court in Washington sublect to the venue provisions actions against counties in
RCW 36.01.050.
g) This MOU may not be assigned by Organization without Upstream's prior written consent
which shall not be unreasonably withheld and if assigned by either party, shall be binding upon and shall inure
to the benefit of the parties and their respective successors and assigns.
h) A party to this MOU may decide or fail to require full or timely performance of any obligation
arising under this MOU. The decision or failure of a party hereto to require full or timely performance of any
obligation arising under this MOU (whether on a single occasion or on multiple occasions) shall not be
deemed a waiver of any such obligation.
i) Time is of the essence with respect to each obligation arising under this MOU. The failure to
timely perform an obligation arising hereunder shall be deemed a failure to perform the obligation.
D In the event any provision of this MOU, or the application of such provision to any person or
set of circumstances, shall be determined to be invalid, unlawful, or unenforceable to any extent for any
reason, the remainder of this MOU, and the application of such provision to persons or circumstances other
Memorandum of Understanding 2018 Page 6 of 7
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p
than those as to which it is determined to be invalid, unlawful, or unenforceable, shall not be affected and
shall continue to be enforceable to the fullest extent permitted by law.
k) All provisions of this MOU which by their nature extend beyond the termination of this MOU,
including, without limitation Sections 7, 8, 9, and 10, shall survive the termination of this MOU.
1) Each of the persons signing below on behalf of a party represents and warrants that he or
she has full requisite power and authority to execute and deliver this MOU on behalf of the party for whom he
or she is signing and to bind such party to the terms and conditions of this MOU.
M) This MOU may be executed in counterparts, each of which shall be deemed an original and
may be executed and delivered by a digitized transmission of a counterpart signature page.
IN WITNESS WHEREOF, the parties have executed this MOU as of the date first above written.
UPSTREAM USA, INC.: JEFFERSON COUNTY PUBLIC HEALTH:
(Signature)
Name: Jennifer Klatt
Title: CFO
Date:
Contact Information for Notice Purposes:
Address: 1630 San Pablo Avenue, Suite 400
Oakland, CA 94612
Attention: Contracts
Email: contracts@upstream.org
Phone: (510) 918-9723
(Signature)
Name: Vicki Kirkpatrick
Title: Director
Date:
Address: 615 Sheridan Street,
Port Townsend, Washington 98368
Attention: Vicki Kirkpatrick
Email: vkirkpatrick@co.jefferson.wa.us
Phone: (360) 385-9408
Memorandum of Understanding 2018 Page 7 of 7