HomeMy WebLinkAboutAndrew Berman, MD - 2021-04-01 PROFESSONAL, SERVICES CONTRACT BETWEEN
I N
TI-Ri CITY OF IIUNTINGTO'N BEACI I AND
—An_dr_e_w B�� M -M-D
FOR
INDEPENDENT MEDICAL EVALUATIONS WITH
RESPECT TO WORKERS' COMPENSATION CLAIMS
THIS AGILEEMEN'f ("Agreentcni") is made and entered into by and between the City of
Huntington Beach, it municipal corporation of the State of California, hereinafter referred to as
"CITY," and Andrew Berman, MD_, an individual, hereinafter referred to as"PHYSICIAN."
W11FREAS, CITY desires to engage the services of a physician to provide independent
medical evaluations with respect to workers' compensation claims; and
Pursuant to documentation oil file in tlic office of the City Clerk, the provisions of the
Huntington Beach Municipal Code, Chapter 3.03, relating to procurement o1'professional service
contracts have been complied with, and
PHYSICIAN has been selected to perform said services,
NOW, "fl-IEREFORE, 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
soetimes hereinafter be referred to as the "PROlEC'1'."
m
III IYSfC1AN hereby designates Andrew Berman, MD , who shsdl represent it
and be its sole contact and agent in all consultations with CITY during the performance of this
Agreement. -
APPROVED AS TO FORM/r(nl 1`A- t�tq it,
BY.
IICHAEL E. GATES
CITY ATTORNEY
I2-1187AMF Standard Contract- Revised I CITY OF HUNTINGTON BI-ACH
2. CITY STAFF ASSISTANCE
CI'I'Y shall assign a staff coordinator to work directly with PHYSICIAN in the
performance of(his Agreement.
3, TIME OF PERFORMANCE
Time is of the essence of this Agreement. 'file services of PHYSICIAN are to
commence Oil -Apu_1_�_..���1_. (the "coil, ))encem ell t Dale '). This Agreement shall
automatically renew three(3) years from the Conuneneemcnt Date, unless terminated as provided
herein. The time for performance of the tasks identified in 1w hibit "A" are generally to be Shown
in Exhibit "A." ']'his schedule magY be amended to benefit the PROK"CT if mutually agreed to in
writing by CITY and PHYSICIAN.
In the event the Coiuuieueement Date precedes the Effective bate, 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 "13 " attached
hereto and incorporated by reference into this Agreement, a fee, including all costs and expenses,
not to exceed Twenty-nine"thousand Nine-Flundred Dollars ($29,900.00).
5. I:NTRA WORIC
In the event CITY requires additional services not included ill l xhibit "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.
i2-318711MF, Standard Contract - Rcviscd 2
6. METHOD OF PAYMENT
PHYSICIAN shall be paid pursuant to the terms of'Exhibit "It."
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
Ohs Agreement or upon PROJECT completion, whichever sliall occur first. These materials may
be used by CITY as it sees fit.
8. HOLD HARMLESS
PHYSICIAN hereby agrees to protect, dchmml, indemnify and hold harmless CITY,
its officers, elected or appointed 00-1cials, 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 PIlYSIC1AN's subeoribactos, 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 officcis, agents or employees except such loss or
damage which was caused by the sole negligence or willful misconduct of CITY. PI YSICIAN 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 insuranec
policies are applicable. The policy limits do no net as limitation upon the amount of indumnification
to be provided by PHYSICIAN.
12-1187/IM8 Standard Contract - Rcviscd 3
9. PROFESSIONAL LIABILITY INSURANCE,
PHYSICIAN shall obtain and furnish to CITY a professional liability insurancu
policy covering the work performed by it hereunder. This policy shall provide coverage for
PHYSICIAN'S professional linbilhy in an amount not less than One Million Dollars
($1,00%000.00) per occurrence and in tic aggregate. Ile above-mentioned insurance shall not
contain a self-insured retention without the express written consent of CITY; however an insurance
policy "deductible" of'f n Ilousand Ewilat:s ($10,000.00) or less is permitted. A claims-made
policy slialt be acceptable if the policy further provideS that:
A. The polioy retroactive date coincides with or precedes the initiation of the
scope of work (including subsequent policies purchased as renewals or
replacements).
B. PUYSICIAN shall notify CITY of circumstances or incidcuts that might
give rise to future claims.
PHYSICIAN will make every effort to maintain similar insurance during the
rcquircd exWmied periocl of coverage followingPRODEur 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 cminection with this Agreement.
If P]IYSICIAN fails or refuses to produce or maintain the insurance required by
this section or fails or rei'uses to furnish the CITY with required proof that insurance has been
procured and is in force and paid for, the Cl'1'Y 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 waives
103 MAMG Standard Contract - Revised 4
the right to receive Coll 1ponsation and agrees to indemnify file CITY for any work performed prior
to approval of insurance by [lie CITY.
10. CLICHFIC:AT138 Oh 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 Ill'surance,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 is 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) clays'
prior written notice; however,ten (10)days' prior written notice in the event
of cancellation for nonpayment of prenliunl.
PHYSICIAN shall maintain the foregoing insurance coverage in force until the
work under this Agreement is fully completed and accepted by CITY.
'file requirement for carrying the foregoing insurance coverage shall not derogate
from PHYSICIAN'S dcfcnsc, hold hau'mless and iudcmnificalion obligations as set forth in this
Agreement. CITY or its rcpresenlative$111111 at all times have the right to demand the original or a
copy of the policy of insurance. PHYSICIAN shall pay, in a prompt and timely manner, the
prcoliunrs on (he insurance hercinabovc required.
1 l. INDPPENfIrN'I' CON"I'ItACTOR
PAYSICIAN is, and shall be, acting at all times in the per tornlauce of (his
Agrcenteut as an indepondenl coun'aclor herein and not as an employee of CITY. PHYSICIAN
shall secure at its own cost and expense, and be, responsible for ally and all payment of all taxes,
12-3187/IMB Standard Contract - Revised 5
social sccurily, slate disability insurance compensation, unemployment compensation and other
payroll deductions fa• PHYSICIAN and its officers, agents and employees and all business
licenses, if any, in connection with the PROJECT and/or the ScrviceS to be performed hereunder.
12. TERMINATION OF AOREEMI NT
All work required hereunder shall be performed in a good and workmanlike
manner. CITY may terminate PI IYSICIAN's services hmvwWcr many time with or without cause,
and whether or not the PROJECT is (idly complete. Any termination of this Agrecnte:ut 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 properly and shall be promptly delivered to it by
PHYSICIAN.
13. ASSI(INMEN_I' ANI:) DFIEGATION
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 enlily without the
prior express written consent of CITY. If an assignment, delegation or subcontract is approved,
all approved assignees, delegates and subcontractors nutst satisfy the insurance requirements as
set forth In Sections 9 and 10 licreinabove.
14. C:OPYRIGH I S/PATEN 1 S_
CITY shall own all rights to any patent or copyright on any work, item or material
produced as a result of this Agreemait.
15. CITY EMPLOYEES AND OFFICIALS
PHYSICIAN shall employ no CITY official nor any regular CITY employee in the
work performed pursuant to this Agreement. % officer or employcc of CITY shall have any
12-7187/I1NAR Standard Contract - Revised 6
financial interest in this Agreement in violation of the applicable provisions oi' Hie California
(Svcrnmcnt Code.
to NO"fICES
Any notices, certificates, or other communications hereunder shall be given either
by personal delivery to P14YSICIA144 agent (as designated in Section I 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 United States Postal Service, to the addresses specified below. CITY
and PhiYSIC1AN may designate different addresses to which subsequent notices, certificates or
other communications will he 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 Fluntington Beach Andrew Berman,-MD -_-
AYFN: Risk Manager 9001 Wilshire Blvd #204__
2000 Main Stmet Beverly Hills CA 90211
I-luntington Beach, CA 92648
17. CONSIEW
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 consentApproval to any
subsequent occurrence of the same or any other hfansaction or event.
18. NMI OINS CATfON
No waiver or modification of any language in (his Agreement shall be valid unless
in writing and duly executed by both parties.
12-3187/IMF% Slandard Contract - ILcviscd 7
19. SECTION 1-ll ADTNGS
The titles, captions, section, paragraph and subject headings, and descriptive
phrases at the beginning of the various sections in this Agreement arc merely descriptive and tine
included solely for convenience of reference only and arc not representative of maltcrs included
or excluded Boni such provisions, and do not interpret, define, limit or describe, or construe. the,
intent of the parties or affect the construction or interpretation May provision of this Agreement.
20. 1NTERP10,,TATION 017 THIS AGREEMENT
The language of all parts of Us Agreement sliall in all cases be construed as a
whole, according to its fair mcauing, 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
onenforceablc, 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 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 (nature statute, law, ordinaacc or regulation contrary to which
the parties have no right to contract, then the latter shall prevail, aid 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 tile law.
21, DUPLICATE ORIGINAL
'file 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
12-3187AMEi Standard Contract - Revised 8
the date of its executio❑ and delivery, be deemed an original. Each duplicate original shall be
deemed an original instrument as against any party who has signed it.
22. IMMIGRATION
PHYSICIAN shall be responsible for full compliance with the immigration and
naturalization laws of Be United States and shall, in particular, e mply with the provisions of Be
Wind Moms CIA regarding employament verillutlon.
21 LEGAL SERVICES SUBCONTRACTING PROfiIBffED
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 undershuids that pursuant to Huntington
Ileach Ciiy Chm7er 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 ill IYSICIAN.
24. ATTORNEY'S PLIES
In the event suit is brought by either party to construe, interpret and/or enforce the
terns and/or provisions of this Agreement or to seenre the performance hereof, each party shall
beau• its own attorney's fees, such that the prevailing party sliall not be entitled to recover its
allormels fees from the non-prevailing party.
25. SIIRVIVAI,
"Perms and conditions of this Agreement, which by their sense and context survive
the ternnuunion of this Agreement, shall so survive.
26. GOVERNING LAW
This Agreement shall be governed and construed in accordance with the laws of the
State of California.
12-3187/INIF Standard Contract- Revisal 9
27, SIGNATORIES
Rach 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
i
authority or power N not, in to, held by the signatory or is withdr
11111'SICIAN's initials
21 ENTIITI TY
Ile 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 (hat no representations, inducements, promises, agreements or warranties,oral or otherwise,
have been made by that Marty cr anyone acting on that parly's 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 attachal 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 (Ile
subject natter hereof.
29. RT'FECTIVF,DATE
'this Agreement shall be effective on the date of its approval by the City Attorney.
This Agreement shall expire when termimded as provided hereof.
IN WITNESS WHEREOF, the parties hereto have causal this Agreement to be executed
by and through (heir authorized officers.
12-318MOU Standard Contract - Revised 10
PHYSICIAN
Andrew Berman MD CITY OF HUNTINOTON BEACH,a
_ municipal corporation of the State of California
Trrvrawr rNrSMW'$KMIE
— 144)44 r
S{gnMure _ p� - -
llii ctor of Human Resources
i
APPROV ill
AS TOFORM:
,arfity Attorney
Receive and File
trl,
Ctty Clerk �I g
12.318VIMLI Standard Contract- Revised 11
PROFESSIONAL SE1MCPS CON'f[ZAC'1' 131i 1'GVELN
THE CITY OP I-1UNTINOTON 13EACII AND
Andrew Serman.mo
FOR
INDEPENDENT MEDICAL. 13VALUATONS WITH
Rf;SPFiC'I"I'O WORKERS' COMPENSATION CLAIMS
'fable of Contents
IScope of'Services.....................................................................................................1
2 City Staff Assistance................................................................................................2
3 Tinie of Performance...............................................................................................2
4 Compensation ..........................................................................................................2
5 h-.ora Work...............................................................................................................2
6 Method of Payment..................................................................................................3
7 Disposition of Plans, Rstimates and Other Documents ...........................................3
8 1lold Harmless .........................................................................................................3
9 Professional Liability Insurance..............................................................................4
10 Certificates of Insurance..........................................................................................5
11 Independent Contractor..............................................................................................5
12 Termination of Agreement.......................................................................................6
I3 Assignment and Subconlracfing ..............................................................................6
14 Copyrights/Patents...................................................................................................6
15 City Employees and Officials..................................................................................6
16 Notices .......................................................................—...........................................7
17 Consent ....................................................................................................................7
18 Modification.............................................................................................................7
19 Section I leadings ...................................................................................... ..............8
20 Intcrprclation of this Agreement..............................................................................8
21 Duplicate Original....................................................................................................8
22 Immigralion..............................................................................................................9
23 Legal Services Subcontracting Prohibited...............................................................9
24 Attorney's Fees.........................................................................................................9
25 Survival....................................................................................................................9
26 Governing Law ........................................................................................................9
27 Signatories................................................................................................................10
28 Entirety.....................................................................................................................10
29 Effective Datc ..........................................................................................................10
19.-3 1 87/75 8 80
EXIIIBJ'I' "A"
STATI MENTOF WORK:
1) AOlE—COE, I1,XAMS (exams for the determination of industrial causation).
2) 1 valuation 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 medicnl improvement status.
5) Determine nature and extent of permanent disability, including factors of apportionment
and need for future nnc(lical care.
6) lZesolve utilization reviow disputes,
7) Determine the need for spinal surgery pursuant to Labor Code section 4062(b).
PHYSICIAN shall perform the evaluation ill 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 hnpairuient, Fifth Edition. This requires a report of the igjury, 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 documental bilaterally. Additionally, PHYSICIAN agrees to:
0) provide that medical exams will beset within thirty (30) days of the dnte of appoinUnent
request, and (io prepare a written report of findings within thirty (30) days of the date of exant or
evaluation and provide a copy to the parties within said tinne fume,
12-3187/75880
Payment Schedule
I. Missed Appointments
• Fee: $503.75
• Code: MI.,200
AplVies 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 1YLedical-Legal Evaluations
• Fee: $2,015.00
• Code: ML,201
• Applies to the initial evaluation or the lirst 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 Evaluations
• Fee: $1;316.25
• Code: ML202
• Applies to any subsequent comprehensive evaluation within 18 months of the initial
evaluation.
• '['his 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 it 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 ill 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 oft hours for deposition.
• If the deposition is canceled within fewer than 8 calendar clays prior notice, physician is
entitled to bill I hour of time.
G. Medical-Legal Review of Sun Rosa Evidence
• Fee: $325.00 per hour (or physician's usual and customary Ice, 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-legal report. The fce for time spent
reviewing the recording will be included in the billing for the initial, follow-up 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 a
written medical report within 30 days of the date of the exam subjects PI IYSICIAN to non-
payment for services rendered.
9. 1311YSICIAN 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) clays following receipt from
PHYSICIAN of invoices for services rendered and for which payment has not previously
been made, provided that PI YSICIAN shall submit all invoices within ninety (90) clays
after the date of service.
12-3187/75880 2
The Doctors Company Y
"A\THEDOCTORSCOMPANY
CERTIFICATE OF INSURANCE Issue Date: 1010712020
Effective Date: 11/01/2020 A Claims-Made Piofes`sional Liability Policy
First Named Insured: IMPORTANT NOTICE: This document is issued as
Andrew G Berman MD a matter of information and does not confer rights
9001 Wilshire Boulevard, Suite 204 to any recipient. This document is not binding, is
Beverly Hills, CA 90211 not part of the Policy described below, and does
not change or extend the coverage provided by that
Policy.
Insured: Andrew G Berman MD
Specialty: OT002-Otolaryngology-Major-Facial Cosmetic Plastic Surg
Policy Number: Policy Period:
0075563 From: )11/01/20203 To: '11/01/202lj
Retroactive Date: Departure Period:
0 5102/1 9 9 0 From: N/A To: N/A
The Insured above is: Agency and Address:
OX A Named Insured Seeman Holtz Property and
❑A Locum Tenens Casualty, LLC
❑An Additional Insure 20333 US Highway 249
'APPROVED AS TO FORM Suite 300
Houston,TX 77070
By;
� (281)872-5000
MICHAEL E. GATES
CITY ATTORNEY
CITY OF HUNTINGTON BEACH
LIMITS OF LIABILITY
Claim Limit: $1,000,000
Aggregate Limit: $3,000,000
I. Locum Tenens and Additional Insureds share Limits of Liability with the applicable Named Insured.
II. Individuals who occupy a"slot' share Limits of Liability with all others who occupy the same"slot" during the
Policy Period.
III. Photocopies of this document are deemed as valid as the original.
IV. The Policy, including Endorsements, determines the coverage provided. Some Claims may not be covered
by the terms of the Policy, or may be subject to restrictions such as lower Limits of Liability.
V. If the Policy, or coverage for any person, is canceled for any reason or if the terms of the Policy are
changed, we will notify the First Named Insured (and any additional Named Insureds as required by
applicable state law). Coverage is not in effect unless and until all payments are received when due.
VI. If a Departure Period is indicated, the Policy will not respond to Probable Claim Events arising from
Professional Services Incidents or Review Incidents that take place during the designated period; however,
the Policy will respond if we receive a Claim Report during this period.
MPL003 (04115) 113711 Pagel of 1 MCO2003 30544897-00 Insured
185 Greenwood Road:P.O.Box 2900:Nape,CA 94558-0900:(707)226-0100:(800)421-2368:�Ahedoclors.com