HomeMy WebLinkAboutJulio Taleisnik, MD - 2015-05-15 PROFESSONAL SERVICES CONTRACT BETWEEN
THE CITY OF HUNTINGTON BEACH AND
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FOR
INDEPENDENT MEDICAL EVALUATIONS WITH
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," andj"kj-pTp\CiStjj fy\D , an 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:
1. 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 1'�rvl�'1�1�Q�D���l who shall represent
it and be its sole contact and agent in all consultations with CITY during the performance of this
Agreement.
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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 57(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.
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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.
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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
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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.
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PHYSICIAN shall obtain and furnish to City workers' compensation and
a
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
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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 termination, all finished and unfinished documents, exhibits,
report, and evidence shall at the option of the CITY become its property and shall be promptly
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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.
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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 1 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 via personal
delivery, a reputable overnight carrier or U.S. certified mail-return receipt requested:
TO CITY: TO PHYSICIAN:
City of Huntington Beach mid
ATTN: Risk Manager l.A VeAzt -Averyae
2000 Main Street �:_ A C sw
Huntington Beach, CA 92648 QKaL e , CA gZS&F
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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
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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.
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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.
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PHYSICIAN's initials ( \ I
30. ENTIRETY 3
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
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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 r
�L:�,iJ�`'Q L 1;W1/C CITY OF HUNTAGTON BEACH, a
TYPE/PRINT rxYsrcv 'sNAME municipal co oration of the tate of California
Si na e
Director of Human Resources
APPROVED A ORM:
City Attorney
Receive and File
City Clerk
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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.
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EXHIBIT "B"
Payment Schedule (Hourly Payment)
A. Hourly
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
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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.
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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.
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