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HomeMy WebLinkAboutGerald Markovitz, MD - 2015-08-01RECEIVED PROFESSONAL SERVICES CONTRACT BETWE DEc _4 Pm 4: 5S THE CITY OF HUNTINGTON BEACH AND Lncrald �MD 01iT Y Ci-EF, FOR CITY OF INDEPENDENT MEDICAL EVALUATIONS WITI4 RESPECT TO WORKERS' COMPENSATION CLAIMS THIS AGREEMENT ("Agreement") is made and entered into by and between the City of Huntington Beach, a municipal corporation of the State of California, hereinafter referred to as "CITY," and 6W k1 (1(}GrrP-0A jMan individual, hereinafter referred to as "PHYSICIAN." WHEREAS, CITY desires to engage the services of a physician to provide independent medical evaluations with respect to workers' compensation claims; and Pursuant to documentation on file in the office of the City Clerk, the provisions of the Huntington Beach Municipal Code, Chapter 3.03, relating to procurement of professional service contracts have been complied with; and PHYSICIAN has been selected to perform said services, NOW, THEREFORE, it is agreed by CITY and PHYSICIAN as follows: I. SCOPE OF SERVICES PHYSICIAN shall provide all services as described in Exhibit "A," which is attached hereto and incorporated into this Agreement by this reference. These services shall sometimes hereinafter be referred to as the "PROJECT." PHYSICIAN hereby designates Maw �� V'�, who shall represent it and be its sole contact and agent in all consultations with CITY during the performance of this Agreement. 17-6068/167335/DO 2. CITY STAFF ASSISTANCE CITY shall assign a staff coordinator to work directly with PHYSICIAN in the performance of this Agreement. 3. TIME OF PERFORMANCE Time is of the essence of this Agreement. The services of PHYSICIAN are to commence on T I ��C-�' I ZDI Cj (the "Commencement Date"). This Agreement shall automatically renew three (3) years from the Commencement Date, unless terminated as provided herein. The time for performance of the tasks identified in Exhibit "A" are generally to be shown in Exhibit "A." This schedule may be amended to benefit the PROJECT if mutually agreed to in writing by CITY and PHYSICIAN. In the event the Commencement Date precedes the Effective Date, PHYSICIAN shall be bound by all terms and conditions as provided herein. 4. COMPENSATION In consideration of the performance of the services described herein, CITY agrees to pay PHYSICIAN, on a time and materials basis at the rates specified in Exhibit "B," attached hereto and incorporated by reference into this Agreement, a fee, including all costs and expenses, not to exceed Twenty-nine Thousand Nine -Hundred Dollars ($29,900.00). 5. EXTRA WORK In the event CITY requires additional services not included in Exhibit "A," or changes in the scope of services described in Exhibit "A," PHYSICIAN will undertake such work only after receiving written authorization from CITY. Additional compensation for such extra work shall be allowed only if the prior written approval of CITY is obtained. 17-6068/ 16733 5/DO 2 6. METHOD OF PAYMENT PHYSICIAN shall be paid pursuant to the terms of Exhibit "B." 7. DISPOSITION OF PLANS, ESTIMATES AND OTHER DOCUMENTS PHYSICIAN agrees that title to all materials prepared hereunder, including, but not limited to: all original drawings, designs, reports, both field and office notices, calculations, computer code, language, data or programs, maps, memoranda, letters and other documents, shall belong to CITY, and PHYSICIAN shall turn these materials over to CITY upon termination of this Agreement or upon PROJECT completion, whichever shall occur first. These materials may be used by CITY as it sees fit. 8. HOLD HARMLESS PHYSICIAN hereby agrees to protect, defend, indemnify and hold harmless CITY, its officers, elected or appointed officials, employees, agents and volunteers from and against any and all claims, damages, losses, expenses, judgments, demands and defense costs (including without limitation, costs and fees of litigation of every nature or liability of any kind or nature) arising out of or in connection with PHYSICIAN's (or PHYSICIAN's subcontractors, if any) negligent (or alleged negligent) performance of this Agreement or its failure to comply with any of its obligations contained in this Agreement by PHYSICIAN, its officers, agents or employees except such loss or damage which was caused by the sole negligence or willful misconduct of CITY. PHYSICIAN will conduct all defense at its sole cost and expense and CITY shall approve selection of PHYSICIAN's counsel. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as limitation upon the amount of indemnification to be provided by PHYSICIAN. 17-6068/167335/DO 3 9. PROFESSIONAL LIABILITY INSURANCE PHYSICIAN shall obtain and furnish to CITY a professional liability insurance policy covering the work performed by it hereunder. This policy shall provide coverage for PHYSICIAN's professional liability in an amount not less than One Million Dollars ($1,000,000.00) per occurrence and in the aggregate. The above -mentioned insurance shall not contain a self -insured retention without the express written consent of CITY; however an insurance policy "deductible" of Ten Thousand Dollars ($10,000.00) or less is permitted. A claims -made policy shall be acceptable if the policy further provides that: A. The policy retroactive date coincides with or precedes the initiation of the scope of work (including subsequent policies purchased as renewals or replacements). B. PHYSICIAN shall notify CITY of circumstances or incidents that might give rise to future claims. PHYSICIAN will make every effort to maintain similar insurance during the required extended period of coverage following PROJECT completion. If insurance is terminated for any reason, PHYSICIAN agrees to purchase an extended reporting provision of at least two (2) years to report claims arising from work performed in connection with this Agreement. If PHYSICIAN fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the CITY with required proof that insurance has been procured and is in force and paid for, the CITY shall have the right, at the CITY's election, to forthwith terminate this Agreement. Such termination shall not affect PHYSICIAN's right to be paid for its time and materials expended prior to notification of termination. PHYSICIAN 17-6068/ 16733 5/DO 4 waives the right to receive compensation and agrees to indemnify the CITY for any work performed prior to approval of insurance by the CITY. 10. COMMERCIAL GENERAL LIABILITY INSURANCE As a condition precedent to the effectiveness of this Agreement, PHYSICIAN shall procure and maintain at PHYSICIAN's expense for the duration of this Agreement from insurance companies that are admitted to write insurance in California or from authorized non - admitted insurance companies that have ratings of or equivalent to A:VIII by A.M. Best Company: (a) Commercial general liability insurance equivalent in scope to ISO form CG 00 01 1185 or CG 00 01 1093 in an amount not less than One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) general aggregate. Such coverage shall include but not be limited to broad form contractual liability, cross liability independent contractor's liability, and products and completed operations liability. The City, its officers, elected or appointed officials, employees agents and volunteers shall be named as additional insured by endorsement on the City's endorsement form or on an endorsement equivalent in scope to ISO form CG 20 10 11 85 or CG 20 26 11 85, and this insurance shall contain no special limitations on the scope of protection given to the City, its officials, employees and agents. 11. WORKERS' COMPENSATON AND EMPLOYER'S LIABILITY INSURANCE Pursuant to California Labor Code Section 1861, PHYSICIAN acknowledges awareness of Section 3700 et seq. of this Code, which requires every employer to be insured against liability for workers' compensation; PHYSICIAN covenants that it will comply with such provisions prior to commencing performance of the work hereunder. 17-6068/ 16733 5/DO 5 PHYSICIAN shall obtain and furnish to City workers' compensation and employer's liability insurance in an amount of not less than the State statutory limits. PHYSICIAN shall require all subcontractors to provide such workers' compensation and employer's liability insurance for all of the subcontractors' employees. PHYSICIAN shall furnish to city a certificate of waiver of subrogation under the terms of the workers' compensation and employer's liability insurance and PHYSICIAN shall similarly require all subcontractors to waive subrogation. 12. CERTIFICATES OF INSURANCE Prior to commencing performance of the work hereunder, PHYSICIAN shall furnish to CITY certificates of insurance subject to approval of the City Attorney evidencing the foregoing insurance coverage as required by this Agreement; the certificate shall: A. provide the name and policy number of each carrier and policy; B. state that the policy is currently in force; and C. promise that such policy shall not be suspended, voided or canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice; however, ten (10) days' prior written notice in the event of cancellation for nonpayment of premium. PHYSICIAN shall maintain the foregoing insurance coverage in force until the work under this Agreement is fully completed and accepted by CITY. The requirement for carrying the foregoing insurance coverage shall not derogate from PHYSICIAN's defense, hold harmless and indemnification obligations as set forth in this Agreement. CITY or its representative shall at all times have the right to demand the original or 17-6068/167335/DO 6 a copy of the policy of insurance. PHYSICIAN shall pay, in a prompt and timely manner, the premiums on the insurance hereinabove required. 13. INDEPENDENT CONTRACTOR. PHYSICIAN is, and shall be, acting at all times in the performance of this Agreement as an independent contractor herein and not as an employee of CITY. PHYSICIAN shall secure at its own cost and expense, and be responsible for any and all payment of all taxes, social security, state disability insurance compensation, unemployment compensation and other payroll deductions for PHYSICIAN and its officers, agents and employees and all business licenses, if any, in connection with the PROJECT and/or the services to be performed hereunder. 14. TERMINATION OF AGREEMENT All work required hereunder shall be performed in a good and workmanlike manner. CITY may terminate PHYSICIAN's services hereunder at any time with or without cause, and whether or not the PROJECT is fully complete. Any termination of this Agreement by CITY shall be made in writing, notice of which shall be delivered to PHYSICIAN as provided herein. In the event of tennination, all finished and unfinished documents, exhibits, report, and evidence shall, at the option of the CITY, become its property and shall be promptly delivered to it by PHYSICIAN. 15. ASSIGNMENT AND DELEGATION This Agreement is a personal service contract and the work hereunder shall not be assigned, delegated or subcontracted by PHYSICIAN to any other person or entity without the prior express written consent of CITY. If an assignment, delegation or subcontract is approved, all approved assignees, delegates and subcontractors must satisfy the insurance requirements as set forth in Sections 9 and 10 hereinabove. 17-6068/167335/DO 7 16. COPYRIGHTS/PATENTS CITY shall own all rights to any patent or copyright on any work, item or material produced as a result of this Agreement. 17. CITY EMPLOYEES AND OFFICIALS PHYSICIAN shall employ no CITY official nor any regular CITY employee in the work performed pursuant to this Agreement. No officer or employee of CITY shall have any financial interest in this Agreement in violation of the applicable provisions of the California Government Code. 18. NOTICES Any notices, certificates, or other communications hereunder shall be given either by personal delivery to PHYSICIAN's agent (as designated in Section I hereinabove) or to CITY as the situation shall warrant, or by enclosing the same in a sealed envelope, postage prepaid, and depositing the same in the United States Postal Service, to the addresses specified below. CITY and PHYSICIAN may designate different addresses to which subsequent notices, certificates or other communications will be sent by notifying the other party viapersonal delivery, a reputable overnight carrier or U.S. certified mail -return receipt requested: TO CITY: City of Huntington Beach ATTN: Risk Manager 2000 Main Street Huntington Beach, CA 92648 TO PHYSICIAN: Gief'm& ma moy i+z, M,t7 WPM W i 1 S"irf- i31vd • S U AA—r- 51 a- 1 CA C(CvaS 17-6068/167335/DO 8 19. CONSENT When CITY's consent/approval is required under this Agreement, its consent/approval for one transaction or event shall not be deemed to be a consent/approval to any subsequent occurrence of the same or any other transaction or event. 20. MODIFICATION No waiver or modification of any language in this Agreement shall be valid unless in writing and duly executed by both parties. 21. SECTION HEADINGS The titles, captions, section, paragraph and subject headings, and descriptive phrases at the beginning of the various sections in this Agreement are merely descriptive and are included solely for convenience of reference only and are not representative of matters included or excluded from such provisions, and do not interpret, define, limit or describe, or construe the intent of the parties or affect the construction or interpretation of any provision of this Agreement. 22. INTERPRETATION OF THIS AGREEMENT The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any of the parties. If any provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be unenforceable, void, illegal or invalid, such holding shall not invalidate or affect the remaining covenants and provisions of this Agreement. No covenant or provision shall be deemed dependent upon any other unless so expressly provided here. As used in this Agreement, the masculine or neuter gender and singular or plural number shall be deemed to include the other whenever the context so indicates or requires. Nothing contained herein shall be construed so as 17-6068/167335/DO 9 to require the commission of any act contrary to law, and wherever there is any conflict between any provision contained herein and any present or future statute, law, ordinance or regulation contrary to which the parties have no right to contract, then the latter shall prevail, and the provision of this Agreement which is hereby affected shall be curtailed and limited only to the extent necessary to bring it within the requirements of the law. 23. DUPLICATE ORIGINAL The original of this Agreement and one or more copies hereto have been prepared and signed in counterparts as duplicate originals, each of which so executed shall, irrespective of the date of its execution and delivery, be deemed an original. Each duplicate original shall be deemed an original instrument as against any party who has signed it. 24. IMMIGRATION PHYSICIAN shall be responsible for full compliance with the immigration and naturalization laws of the United States and shall, in particular, comply with the provisions of the United States Code regarding employment verification. 25. LEGAL SERVICES SUBCONTRACTING PROHIBITED PHYSICIAN and CITY agree that CITY is not liable for payment of any subcontractor work involving legal services, and that such legal services are expressly outside the scope of services contemplated hereunder. PHYSICIAN understands that pursuant to Huntington Beach City Charter Section 309, the City Attorney is the exclusive legal counsel for CITY and CITY shall not be liable for payment of any legal services expenses incurred by PHYSICIAN. 17-6068/167335/DO 10 26. ATTORNEY' S FEES In the event suit is brought by either party to construe, interpret and/or enforce the terms and/or provisions of this Agreement or to secure the performance hereof, each party shall bear its own attorney's fees, such that the prevailing party shall not be entitled to recover its attorney's fees from the non -prevailing party. 27. SURVIVAL Terms and conditions of this Agreement, which by their sense and context survive the termination of this Agreement, shall so survive. 28. GOVERNING LAW This Agreement shall be governed and construed in accordance with the laws of the State of California. 29. SIGNATORIES Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify CITY fully for any injuries or damages to CITY in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. PHYSICIAN's initials 30. ENTIRETY The parties acknowledge and agree that they are entering into this Agreement freely and voluntarily following extensive arm's length negotiation, and that each has had the opportunity to consult with legal counsel prior to executing this Agreement. The parties also acknowledge and agree that no representations, inducements, promises, agreements or warranties, oral or otherwise, have been made by that party or anyone acting on that party's 17-6068/167335/DO I I behalf, which are not embodied in this Agreement, and that that party has not executed this Agreement in reliance on any representation, inducement, promise, agreement, warranty, fact or circumstance not expressly set forth in this Agreement. This Agreement, and the attached exhibits, contain the entire agreement between the parties respecting the subject matter of this Agreement and supersede all prior understandings and agreements whether oral or in writing between the parties respecting the subject matter hereof. 31. EFFECTIVE DATE This Agreement shall be effective on the date of its approval by the City Attorney. This Agreement shall expire when terminated as provided hereof. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized officers. PHYSICIAN CITY OF TYPE/PRINT PHYSICIAN'S NAME Signature APPROVED Receive and Me GTON BEACH, a on of the State of California of Human Resources City Attorney 17-6068/167335/DO 12 EXHIBIT "A" STATEMENT OF WORK: 1) AOE — COE EXAMS (exams for the determination of industrial causation). 2) Evaluation for necessity of appropriate medical treatment. 3) Assessment of employee's present ability to return to work, whether full duty or modified. 4) Advise on condition of maximum medical improvement status. 5) Determine nature and extent of permanent disability, including factors of apportionment and need for future medical care. 6) Resolve utilization review disputes. 7) Determine the need for spinal surgery pursuant to Labor Code section 4062(b). PHYSICIAN shall perform the evaluation in full accordance with the standards defined by the Division of Workers' Compensation of the State of California and the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition. This requires a report of the injury, prior status, clinical chronology, current status, and past medical history. The physical examination will document all pertinent positive, negative, and non -physiological findings. For extremity injuries, measurements must be documented bilaterally. Additionally, PHYSICIAN agrees to: (i) provide that medical exams will be set within thirty (30) days of the date of appointment request, and (ii) prepare a written report of findings within thirty (30) days of the date of exam or evaluation and provide a copy to the parties within said time frame. 17-6068/167335/DO EXHIBIT "B" Payment Schedule (Hourly Payment) A. Hourly Rate PHYSICIAN'S fees for such services shall be based upon the following hourly rate and cost schedule: B. Travel. Charges for time during travel are not reimbursable C. Billing 1. All billing shall be done monthly in fifteen (15) minute increments and matched to an appropriate breakdown of the time that was taken to perform that work and who performed it. 2. Each month's bill should include a total to date. That total should provide, at a glance, the total fees and costs incurred to date for the project. 3. A copy of memoranda, letters, reports, calculations and other documentation prepared by PHYSICIAN may be required to be submitted to CITY to demonstrate progress toward completion of tasks. In the event CITY rejects or has comments on any such product, CITY shall identify specific requirements for satisfactory completion. 4. PHYSICIAN shall submit to CITY an invoice for each monthly payment due. Such invoice shall: A) Reference this Agreement; B) Describe the services performed; C) Show the total amount of the payment due; D) Include a certification by a principal member of PHYSICIAN's firm that the work has been performed in accordance with the provisions of this Agreement; and E) For all payments include an estimate of the percentage of work completed. Upon submission of any such invoice, if CITY is satisfied that PHYSICIAN is making satisfactory progress toward completion of tasks in accordance with this Agreement, CITY shall approve the invoice, in which event payment shall be made within thirty (30) days of receipt of the invoice by CITY. Such approval shall not be unreasonably withheld. If CITY does not approve an invoice, CITY shall notify PHYSICIAN in writing of the reasons for non -approval and the schedule of performance set forth in Exhibit "A" may, at the option of CITY, be suspended until the parties agree that past performance by PHYSICIAN is in, or has been 1 17-6068/167335/DO brought into compliance, or until this Agreement has expired or is terminated as provided herein. 5. Any billings for extra work or additional services authorized in advance and in writing by CITY shall be invoiced separately to CITY. Such invoice shall contain all of the information required above, and in addition shall list the hours expended and hourly rate charged for such time. Such invoices shall be approved by CITY if the work performed is in accordance with the extra work or additional services requested, and if CITY is satisfied that the statement of hours worked and costs incurred is accurate. Such approval shall not be unreasonably withheld. Any dispute between the parties concerning payment of such an invoice shall be treated as separate and apart from the ongoing performance of the remainder of this Agreement. 6. AOE/COE Exam: In the case of a simple AOE/COE examination for the determination of industrial causation, reimbursement will be at the basic rate with a modifier of 1.35. This would equal $675.00. Conditions anticipated in this category would be hearing loss, skin cancer, hernia, conjunctivitis, eye strain and dermatitis. This may not include all types in this category. A more complex exam that involves review of records less than two inches, tests and expert opinion will be reimbursed at the ML 103 with the 1.35 modifier. This would be at $1012.50. It is anticipated this would include new vs. old injuries, internal exams, orthopedic exam with prior injuries or non -industrial conditions, cardiovascular cases, respiratory conditions, pneumonia, bronchitis, blood borne pathogens, overuse syndromes and CT type claim. 7. Treatment and Temporary Disability Issues/UR Disputes/Utilization Reviews: When there is an issue on treatment or the employee's ability to perform some modified duty and an exam is not necessary, the reimbursement would be at the ML 102 with the 1.35 modifier. This would be $675.00. If an exam is needed to resolve the issue the payment would be $1012.50. This would include issues regarding spinal surgery. 8. Permanent and Stationary (MMI): All Permanent and Stationary exams will be at the $1012.50 level. If the parties agree the exam will reach a ML 104, the reimbursement will be at the rate of $350.00 per hour. The factors needed to support the ML 104 are outlined in Cal. Code of Regulations 9795. 9. Deposition Fee: The hourly rate for depositions will be $350.00, payable in quarter hours. 10. Psychiatry Exams: All psychiatry exams or re-evaluations will be billed and paid as an ML 104 report with reimbursement at the rate of $350.00 per hour. 2 17-6068/167335/DO 11. The parties agree that the City is not obligated to pay compensation to the PHYSICIAN except for agreed upon medical services and care. Failure of PHYSICIAN to provide a written medical report within 30 days of the date of the exam subjects PHYSICIAN to non-payment for services rendered. 12. PHYSICIAN billing shall conform to the requirements listed in section 9795 of Title 8 of the California Code of Regulations. Charges for services rendered will be reviewed in accordance with section 9795 to determine appropriate level of service. 13. City shall pay PHYSICIAN within forty-five (45) days following receipt from PHYSICIAN of invoices for services rendered and for which payment has not previously been made, provided that PHYSICIAN shall submit all invoices within ninety (90) days after the date of service. 3 17-6068/167335/DO