HomeMy WebLinkAboutErnest Agatstein, MD - 2021-04-01 PROFISSONAL. SERVICES CONTRACT BETWEEN
THE CITY OF IfUNTINGTON BEACH AND
-E_r_n_e st A_ atS%0 . tnlL.
"OR
IN1313PENDENT M13DICAL EVALUATIONS WITH
RESPl?C'P T'0 WORKERS' COMPENSATION CLAIMS
THIS AO1tE]'sMi N"1'("Agreement") is matte and entered into by and between the City of
Huntington l3cach, a Immicipal corporation of the State of California, hcrcinaRer referred to as
Ernest Agatstein
"CITY"' and , an individual, hcrcinaRer 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
Pnrstlanf to documcnlation oil rile in the office of the City Clerk, (lie 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. Tlicse services shall
somefinies hereinafter be referred to as the "PROJECT."
PHYSICIAN hereby designates Josh Orenbuch who shall represent it
and be; its sole contact alld agent in all consultations with CITY during the performance of this
Agreement. ff
APPROVED AS TO FORM/r'-- _ IQQ jltl
BY.
MPICIIAEL E. GATES
CITY ATTORNEY
12-31871IMH Standard Contract - Revised I CITY OF HUNTINGTON BEACH
2. CITY STAFF ASSISTANCE
CffY shall assign a staff coordinator to work directly with PHYSICIAN in the
performance of this Agreement.
3. TIME 01; PERFORMANCE
Time is of the essence of (his Agreement. 'I'lie services of PHYSICIAN are to
commence on _(�w ►_l_ _2 )� ) (tile "Commencement 1)ate"). This Agreement shall
automatically renew three(3) years from the Commencement Date, wiless terminated as provided
Itercin. The tittle for performance of the tasks identified in Exhibit "A" are gcncraliy to be shown
in Exhibit "A." This schedule may be atnended to benefit the pRO.IECI' if mutually agreed to in
writing by CITY and PHYSICIAN.
In the event the Commencement Date precedes the Effective Date, PHYSICIAN
sliall be bound by all terms and conditions as provided herein.
4. COMPENSATION
ill consideration of the performance of the services described Itercin, CITY agrees
to pay PIYSICAN, on it time and materials basis at the rates specified in Exhibit "13," attached
hereto and incorporated by reference into this Agreement, a fee, including all costs all([ expenses,
not to excecd 'fwcnty-uine 'l'liousaad Nine-Flundred Dollars ($29,900.00).
5. EXTRA WORK
In the event CITY requires additional services not included in Exhibit "A", or
Changes in rile scope of services described is Exhibit "A," PHYSICIAN will uncicrtake 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.
12-5187AME Standard Contract - Revised 2
6. METHOD OF PAYMENT
PHYSICIAN shall be paid pursuant to (lie terms of Exhibit "I3."
7. DISPOSITION OF PLANS, ESTIMATES AND OTI-If R DOCUMEN_fS
PHYSICIAN agrees that title to all materials prepared hereunder, including,but not
I
limited to: all original drawings, designs, reports, both field and office notices, calculations,
computer code, language, data or programs, 1118ps, nlenun•anda, 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.
S. HOLD HARMLESS
PfYSICIAN 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 iu 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 ill this Agreement by PHYSICIAN, its officers, agents or employees except such loss 01•
damage which was caused by the sole negligence or willful illiscondmet of CITY, PI IYSICIAN will
conduct all defense at its sole cost and expense and Ca'I'Y shall approve selection of PHYSICIAN's
counsel. This indemnity shall apply to all claims and liability regardless of whether any assurance
policies are applicable. The policy limits do not act as limitation upon the amount of indemnif cation
to be provided by PHYSICIAN,
12.318711Me Standard Contract - Revised 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
PIIYSICIAN's professional liability in an amount not less than One Million Dollars
i
($1,000,000.00) per occurrence sold in the aggregate. The above-mentioned insurance slut) not
contain a self-insured retenlioa 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. 'file 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 PROILCT completion. If insurance is terminated
for any reason, PI IYSICIAN agrees to purchase an oxtendcd reporting provision ()[*at least two (2)
years to report claims arising from work performed in comlcction with this Agreement.
If PHYSICIAN fails or refuses to pl'o(loce or Illaintaln the insurance k:cquired by
this section or rails or refuses to furnish the CITY will) required proof' that insurance has been
procured and is in force and paid for, the CI"I•Y shall have the right, at the CITY's election, to
forthwith terminate this Agreement. Such termination shall not affect PHYSICIAN's right to he
paid for its time and materials expended prior to notification of lerminalion. PHYSICIAN waives
12-3187/1ME Standard Contract - Revised 4
the right to receive compensation and agrees to indenmify the CITY for any work performed prior
to approval of insurance by the CITY.
10. CERTIFICATES OF INSURANCL
Prior to commencing performance of the work hereunder, MYSIMAN 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;
13. 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 nodec; however, On(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 PFIYSICIAN's defense, hold harmless and indemnification obligations as set forth in this
Agreement. CITY or its representative shall at all limes have the right to demand the original or a
copy of the policy of insurance, PHYSICIAN shall pay, in a prompt and timely mattner, the
premiums on the insurance bercinabove required.
11. INDEPENDENT CONTRACTOR
PIYSICIAN is, and shall be, acting at all times in the peribrmauce 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 Tor any and all payment of all taxes,
121I87MMI? Standnrd Contraol - Revised 5
social security, state disability insurance compensation, unemployment compensation and other
payroll deductions for PI-IYSICIAN and its officers, agents and employees and "it business
licenses, if any, in connection with the PROJECT and/or the services to be performed hereunder.
12. TEIM41NATION GE AGREEMCiNT
Ali work required hereunder shall be performed in a good and worlcnlaolike
manner. CITY may terminate PHYS1CIAN's services hercunder al ally tulle with Ol-without cause,
and whdhw or not the PROJECT is (idly 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 iermillatim , all finished and unfinished documents, exhibits, report, and evidence
shall, at lbe option of the CITY, become its properly and shall be promptly delivered to it by
PHYSICIAN.
13. ASSIGNML'•N"I' 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. Iran 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 heminabove.
M. COPYRIGI ITS/PATEI\r]S
CITY shall own all rights to any patent or copyright oil any work, Itcln of Illatcl'n I.
produced as a result of this Agreement.
15, CITY F-.MIN OYEZ S AND OFFICIAi.S
PfYSICIAN 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 ally
12-3 187/IMF Standard Contract - Revised 6
financial interest in this Agreement in violation of the applicable provisions of the California
Government Code.
16. NOTICES
Any notices, certificates, or other communications hereunder TO be given either
by personnl delivery to PHYSICIAN's agent(as designated in Section t hereinabove) or to CITY
as the situation shall warrant, or by enclosing the same in a scaled envelope, postage prepaid, and
depositing the same in the thtited States Postal Service, to the addresses specified below. CITY
and PHYSICIAN may designate different addresses to which subsequent notices, certificates or
other conuuunications 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 Pl-IYSICIAN:
City of Huntington Beach _West Coast Urology
Aq"N: Risk Manager Attn: Veronica Chacon
2000 Main Sheet 575 E. Hardv S .5022L5
Huntington Beach, CA 92648 Inglewood CA 90035
17, CONSENT'
When CITY's couscnt/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 hansaclion or event.
18. MODIFICATION
No waiver or modification of any language in this Agreement shall be valid unless
in writing and duly executed by both parties.
121 w7nmi; Standard Contract - Revised 7
M 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 maums included
or excluded firm such provisions, and do not interpret, define, limit or describe, or construe the
intent of the parties or affect the consuvction or interpretation of any provision of this Agreement.
20. INTERPRETATION OF TIES 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 Well 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 indicntcs or requires. Nothing contained herein shall be construed so as to require the
commission of any act contrary to law, and wherever these 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 ai'Iealed shall be curtailed and limited only to the extent necessary to
bring it within the requirements of tlic law.
21. 17UPLICA'1'E ORIGINA1,
The original of this Agreement and one or more copies hereto have been Prepared
and signed in counterparts as dnplicato originals, cacti of which so executed shall, irrespective of
123187I ME Standard Contract - Revised 8
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.
22. IMMIORATION
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 Stales Code regarding employment verification.
23. Ll"GAI,SERVICES SUBCONTRACTING PROI{IBITED
PHYSICIAN and CITY agree that CITY is not liable for payment of any
subcontractor work involving legal services, and that such Icgal services arc expressly outside the
scope of services contemplated licreunder. PHYSICIAN understands that pursuant to Hunling/on
Beach CHY Charter Seclion 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.
24. 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
built, its own attorney's fees, such that the prevailing party shall not be entitled to recover its
attorney', fees from the uou-prevailing party.
25. SURVIVAL
Terms and conditions of this Agreement, which by their sense and context survive
the termination of this Agreement, shall so survive.
26. GOVERNING LAW
This Agreement shall be governed and conshved in accordance with the haws of the
State of California.
12-7187/IME Standard Contract-- Revised 9
27. SIGNATORIES
Each undel'slgned represents and warrants (118t Its Slgllallirc Il(;l'elll t]eIOW has tile
power, authority and right to bind their respective parties to each of the terms of. this Agreement,
and shall inclenlnify CITY fully for any injuries or damages to CITY in the event that such
i
authority or power is not, in faet, held by the signatory or is withcLawn,
FA
PII]'SICIAN's initials �.n�...�
28. ENTIIZf'l•Y
The parties acknowledge and agree that they are entering into this Agreement freely
and voluntarily Ibllowing extensive arm's length negotiation, and that each has had the opportunity
to consult with legal counsel prior to executing this Agreement. 'file parties also acknowledge and
agree that no representations, inducements, promises,agrcenlents or warranties, oral or otherwise,
have been made by that party or anyone acting on that party's behalf, which are not ealbodied ill
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 agleeuleut
between the parties respecting the subject matter of this Agreement and supersecle all prior
understandings and agreements whether oral or in writing between (he parties respecting the
subject matter hereof.
29. 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 WI113RKOF, the parties hereto have caused this Agreement to be executed
by and through their authorized officers.
12-718MML Standard Contract - Revised 10
PHYSICIAN
Ernest Agatstein, MD FACS CITY OF HUNTINGTON BEACH, a
TYYF/PPINTPIIYSICIAN'SNAAIe municipal corporation of the Slate of California
a9^M,gyOgfr,ru AWnnn .
Ernest Agatstein " Fm lA...I..
Signature
Din for of Human Resources
APPR(OV�ED,4S TO�FORM:
yfity Attorney
Receive and File
City Cleric ;/MF
12-3187AME Standard Contract- Revised 1 l
PROFESSIONAL SERVICES CONTRACT 13)"I'WEEN
TI-1E CITY OF I-JUNf1NGTON 1313ACt1 AND
Ern65t Aaa A i0, MD
7 FOR
INDl?I'ENDL;N"1' MI DICAI, EVALUATONS WITH
W SPECf TO WORKL•12S' COMI'LNSATION CLAIMS
i
Table of Contents
IScope of Services.....................................................................................................1
2 City Staff Assistance................................................................................................2
3 Time of Performance ...............................................................................................2
4 Compensation ..........................................................................................................2
5 Extra Work...............................................................................................................2
6 Method of Payment...........I......................................................................................3
7 Disposition of Plans, Estimates and Other Documents ...........................................3
8 Bold Harniless .........................................................................................................3
9 Professional Liability 111SUI-anec..............................................................................4
10 Certificates of Insurance..........................................................................................5
11 Independent Contractorr............................................................................................5
12 Termination of Agreement.......................................................................................6
13 Assignment and Subcontracting ..............................................................................6
14 Copyrights/Patents...................................................................................................6
15 City Employees and Officials..................................................................................6
16 Notices .....................................................................................................................7
17 Consent ....................................................................................................................7
18 Modification.............................................................................................................7
19 Section Ileadings .....................................................................................................8
20 Interpretation of this Agreement..............................................................................8
21 Duplicate Original....................................................................................................8
22 Immigration..............................................................................................................9
23 Lcgal Services Subcontracting Prohibited ...............................................................9
24 Attorney's Fces.........................................................................................................9
25 Survival....................................................................................................................9
26 Governing Law ........................................................................................................9
27 Signatories................................................................................................................10
28 Entirety.....................................................................................................................10
29 Effective Date ..........................................................................................................10
12-3187/7 w
EX11IBIT "A"
SfA173MENT OF WORK:
1) A013— COY,. EXAMS (exams for the determina(iou of industrial causation),
2) I valuaGou 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 flood for suture medical care.
G) Resolve utilization review disputes.
7) Determine the need for spinal surgery pursuant to Labor Code section 4062(b).
111-IYSICIAN 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 Gnides to the
Evaluation of Permanent Impairment, Fifth Edilion. This requires a report of the injury, prior
status, clinical chronology, curront status, and past medical history. ']']to physical examination
will document all pul-Gaenl positive, negative, and non-physiological findings. For extremity
injuries, measurements must be documented bilaterally. Additionally, P}IYSICIAN agrees to:
(i) provide that medical exams will be set within thirty (30) days of the(Into of appointment
request, and (ii) prepare a written report of findings within thirty (30) days of tile, date of exam or
evaluation and provide a copy to the parties within said time frame.
12-3187175880
EX111131'1, "13"
Payment Schedule
1 . Missed Appointments
• Fee: $503.75
• Code: M1,200
A/)plies when:
• Interpreter does not appear for evaluation.
• Injured worker leaves before completion of the evaluation.
• Cancellation within 6 business days of the scheduled appointment.
2. Comprehensive Medical-Lcgal Evaluations
• Fee: $2,015.00
• Code: ML201
• Applies to the initial evaluation or the fast evaluation in an 18-month period.
• The evaluation includes review of up to 200 pages of records.
• It Must involve an examination of the employee.
• Review of records in excess of 200 pages is reimbursed at a rate of$3.00 per page.
3. Follow-up Medical-Legal Evaluatinns
• Fee: $1,316.25
• Code: ML202
• Applies to any subsequent comprehensive evaluation within 18 months of the initial
evaluation.
• This fee includes review of up to 200 pages of records that were not reviewed as part of
the initial evaluation.
• Review of records in excess of 200 pages (records not reviewed at initial evaluation)
reimbursed at a rate of$3.00 per page.
4. Supplemental Medical-Legal Evaluations
• Fee: $650.00
• Code: M203
• Does not involve an examination of the patient.
• Results in preparation of a narrative medical report.
• Review of records in excess of 50 pages reimbursed at a rate of$3.00 per page.
• Fees for a supplemental report are not allowed if:
o Records reviewed were provided to the physician for review before the initial or
follow-up evaluations.
o Supplemental report addresses an issue the parties asked the physician to address
in a prior med-legal evaluation.
12-3187/75880 I
5. Medical-Legal Testimony
• Pee: $455.00 per hour (or physician's usual and customary fee, if'lower)
• Code: ML204
• Physician is entitled to bill a minimum of 2 hours for deposition.
• If the deposition is canceled within fewer than 8 calendar clays prior notice, physician is
entitled to bill t hour of time.
6. Medical-Legal Review of Sub Rosa Evidence
Pee: $325.00 per hour (or physician's usual and customary fee, if lower)
• Code: M1.205
• No minimum time allotment.
• Physician must capture time spent reviewing evidence to the nearest quarter-hour,
verified under penalty of perjury.
• The fee does not include production of a medical-tegal report. The I'ce for time spent
reviewing the recording will be included in the billing for the initial, follow-op or
supplemental medical- report.
7. Court-Ordered Evaluations
• When a medical-legal evaluation is ordered by a Workers' Compensation Judge, the
Judge has authority and discretion to apply the appropriate modifier to that evaluation.
8. 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 it
written medical report within 30 days of the date of the exam subjects PHYSICIAN to non-
payment for services rendered.
9. 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.
10. 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.
12-3187/75880 2
pLI
0
COOPERATIVE OF
AMERICAN PHYSICIANS
CERTIFICATE OF COVERAGE
Coverage or rough December 31.2021
Member: Emesl II. Agatstein,MD APPROVED AS TO FORM
Address: 575 E Hardy St Ste 215
Inglewowd,CA 90301 NI C31AEl E. GATES
CNEy
CITYThis certificate confirms that. effective m the coserage date below, the moo+ am ned ph%sic m AH�Q�l1J15t�ptoc
of American Phys¢tans, Inc ICAPi and a participant in the Mutual Protection Trust (Wll Mlrl is an unincorporated
mtenndemnm arrangement organured under California Insurance Code section 12907 This certificate confers no rights upon
the member and does not amend, extend or after the co%erage afforded under the terms. conditions and exclusions of the MM
Agreement
Membership Number MedKal speuelty Coverage Data Retroactive Coverage Dab
jv lit I rological Surgery \o%cmber I, 19% Juh I. 198?
subspecuny
Coverage(Claims made and pa K) commit Ltmlb of Liability
SI,IJ(XJ,lNJO for all Claims based
Medical Prutessional Liability Coverage upon an Occurrence
$3,11)(MA U) each calendar%ear
aggregate
the member must remain a Member in good standing or arrange fax Twl lb%eragr li+r an% open or pnlcnbal Claim that ma% arise
during the Crocrage Period Neither CAP nor MM underbhe any obligation to ad%isr an% parts, tither than the named member.
of am changes to or termination of this corer sge
Cooperative of American Physicians, Inc.
December 0 1,2020
Alfred De Leon IAab
Vice 1're"dem.Membership sersKes
Mutual Protenwn Trust