- 1 -
Contract No. 11001 (CCS)
PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement (“Agreement”), entered into as of _________________(“Execution Date”), by and between the City of Santa Monica (“City”) and USMD Direct Incorporated (“USMD”), is made with reference to the following:
RECITALS:
A. The City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City.
B. USMD is qualified to do business, and is doing business, in the State of California.
USMD represents it has the background, knowledge, experience and expertise necessary to provide the services set forth in this Agreement.
C. The City and USMD now desire to enter into an agreement for USMD to provide professional services to the City.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:
TERMS AND CONDITIONS
1. Term. This Agreement begins on the Execution Date and terminates 5 years from the Execution Date, unless sooner terminated in accordance with Section 14.
2. USMD Services. USMD will perform all of the services (“Services”) described in Exhibit A, Scope of Services. USMD will complete the Services in accordance with Exhibit B, Budget.
3. City Services. The City agrees to:
3.1 Make available to USMD any currently existing documents, data or information required for the performance of the Services.
3.2 Designate a representative authorized to act on behalf of City.
3.3 Promptly examine and render findings on all documents submitted for staff review by USMD.
4. Compensation. The City will compensate USMD for the Services performed in an amount not to exceed $300,000, as set forth in Exhibit B.
5. Invoices. USMD will invoice the City for the Services in accordance with Exhibit B and the City will pay any undisputed amount within 30 days of receipt.
DocuSign Envelope ID: 4F68C5EB-8460-44D2-87FD-D4CB5C8ACA4C 5/21/2020
- 2 -
6. Notices. All notices, demands, requests or approvals to be given under this Agreement, must be in writing and will be deemed served when delivered personally, by email, or on the third business day after deposit in the United States mail, postage prepaid, registered or certified, addressed as follows:
6.1 All notices, demands, requests or approvals to the City:
Human Resources
City of Santa Monica
1685 Main Street
Santa Monica, California 90401
Attention: Chief People Officer
Re: Contract No. 11001
with a copy to:
Santa Monica City Attorney’s Office
1685 Main Street, Third Floor
Santa Monica, California 90401
Attention: City Attorney
Re: Contract No. 11001
6.2 All notices, demands, requests or approvals to USMD:
USMD Direct Incorporated
2021 Santa Monica Blvd, Suite 710E
Santa Monica, CA 90404
Attention: Fawad Zafar-Khan MD
Re: Contract No. 11001
7. Independent Parties. Both parties to this Agreement will be acting in an independent capacity and not as agents, employees, partners, or joint venturers of one another.
Neither the City nor its officers or employees will have any control over the conduct of USMD or any of USMD’s agents, employees, or subconsultants, except as otherwise provided in this Agreement.
8. Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties. Any preliminary negotiations and agreements of any kind or nature are merged into this Agreement. No oral agreement or implied covenant may be held to vary the provisions of this Agreement.
This Agreement may be modified only by written agreement signed by City and USMD, and approved as to form by the City Attorney.
9. Insurance. Prior to commencing work, USMD must procure, maintain and pay for insurance against claims for injuries to persons or damage to property that may arise from or in connection with the performance of the Services by USMD or USMD’s DocuSign Envelope ID: 4F68C5EB-8460-44D2-87FD-D4CB5C8ACA4C - 3 -
agents, representatives, employees or subconsultants for the duration of this Agreement. USMD must obtain insurance that, at a minimum, meets the requirements for insurance set forth in Exhibit C, Insurance Requirements and Verifications.
10. Defense and Indemnification.
10.1 Indemnification. As to USMD’s Services produced under this Agreement, USMD agrees to defend, indemnify, protect, and hold harmless the City, its agents, officers, boards and commissions, and employees (collectively, “City”) from and against any and all liability, claims, demands, damages, or costs, including but not limited to attorney’s fees, or payments for injury to any person or property (collectively, “Losses”) caused or claimed to be caused by the acts, errors and/or omissions of USMD, or USMD’s employees, agents, officers, and subconsultants. USMD’s responsibilities under this Section 10.1 include liability arising from, connected with, caused by, or claimed to be caused by the active or passive negligent acts or omissions of the City, which may be in combination with the acts or omissions of USMD, its employees, agents or officers, or subconsultants; provided, however, that USMD’s duty to defend, indemnify, protect and hold harmless shall not include any Losses arising from the sole negligence or willful misconduct of the City.
Notwithstanding USMD’s obligation to defend City hereunder, City has the right to conduct its own defense and seek reimbursement for reasonable costs of defense from USMD, if City chooses to do so.
10.2 Enforcement Costs. USMD agrees to pay any and all costs the City incurs enforcing the indemnity, defense and hold harmless provisions set forth in Section 10.1.
11. Prohibition Against Transfers.
11.1 USMD may not assign, hypothecate, or transfer this Agreement or any interest therein directly or indirectly, by operation of law or otherwise without the prior written consent of City. Any attempt to do so without the City’s consent will be null and void, and any assignee, hypothecatee or transferee acquires no right or interest by reason of such attempted assignment, hypothecation or transfer.
11.2 The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of USMD or of any general partner or joint venturer or syndicate member of USMD, if a partnership or joint venture or syndicate exists, which results in changing the control of USMD, will be construed as an assignment of this Agreement. Control means 50% or more of the voting power of the corporation.
DocuSign Envelope ID: 4F68C5EB-8460-44D2-87FD-D4CB5C8ACA4C - 4 -
12. Permits and Licenses. USMD, at its sole expense, must obtain and maintain during the term of this Agreement all required business and professional permits, licenses and certificates.
13. Waiver. A waiver of any breach of this Agreement may not be deemed a waiver of any subsequent breach of the same or any other term, covenant, or condition of this Agreement.
14. Default and Termination.
14.1 If USMD fails or refuses to perform any of the provisions of this Agreement, and if the default is not cured within a period of five days after the City’s written notice of default specifying the nature of the default, City may immediately terminate this Agreement by written notice to USMD.
14.2 The City has the option, at its sole discretion and without cause, of terminating this Agreement by giving ten days’ written notice to USMD. Upon termination of this Agreement, City will pay USMD any compensation earned and unpaid up to the effective date of termination.
15. Compliance with Law. USMD must comply with all laws of the State of California and the United States, and all ordinances, rules, and regulations enacted or issued by City.
16. Discrimination. USMD may not discriminate in the provision of services hereunder because of race, color, religion, national origin, ancestry, sex, age, sexual orientation, marital status, AIDS or disability.
17. Nuisance. USMD may not maintain, commit, or permit the maintenance or commission of any nuisance in connection with the performance of services under this Agreement.
18. Records.
18.1 USMD must maintain complete and accurate records with respect to costs, expenses, receipts and other such information required by the City for any services provided where compensation is on the basis of hourly rates, subconsultant costs, or other direct costs. USMD must keep the records, together with supporting documents, separate from other documents and records and maintain them for a period of three years after receipt of final payment.
18.2 USMD must maintain records in sufficient detail to permit an evaluation of the Services and in accordance with generally accepted accounting principles.
USMD must clearly identify all records and make them readily accessible to the City. At the City’s request, USMD must provide records in an electronic format and, if necessary, access to any proprietary software to view such electronic records.
DocuSign Envelope ID: 4F68C5EB-8460-44D2-87FD-D4CB5C8ACA4C - 5 -
18.3 USMD must allow the City to have free access to USMD’s books and records and to inspect all work, data, documents, proceedings and activities related to this Agreement. The City has the right to examine or audit USMD’s records, and USMD agrees to cooperate with any examination or audit of its records. If a City audit discloses an error of 5% or more in information reported by USMD, USMD agrees to pay the cost of the City’s audit computed on the basis of four times the direct payroll of the audit staff completing the audit and audit report.
19. Work Product; Reports.
19.1 Any work product prepared or caused to be prepared by USMD or any subconsultant for this Agreement will be the exclusive property of City. No work product given to or prepared by USMD or any subconsultant pursuant to this Agreement may be made available to any individual or organization by USMD without prior written approval by City.
19.2 At the City’s request, USMD must furnish reports concerning the status of the Services.
20. Standard of Care. USMD agrees to provide all Services, including services performed by any subconsultant, in a manner consistent with the level of care and skill ordinarily exercised by members of USMD’s profession currently practicing in the same locality under similar conditions.
21. Subconsultants.
21.1 If USMD proposes to have any subconsultant perform any part of the Services, USMD must submit a request for approval in writing, describing the scope of work to be subcontracted, the name of the proposed subconsultant, and the total price or hourly rates used in preparing an estimated cost for the subconsultant’s services. The City, in its sole discretion, may grant or deny the request.
21.2 USMD will be responsible for the quality of any subconsultant’s work. Every subcontract or agreement of any kind entered into between USMD and any subconsultant (or between any subconsultant and others) must contain the following provision:
This agreement is consistent with all terms and conditions of the Agreement No. 11001 (CCS) entered into between the City of Santa Monica and USMD on^^____________________.
22. Governing Law. The laws of the State of California, without regard to any choice of law provisions, will govern this Agreement.
23. Venue and Jurisdiction. The City and USMD agree that the Services will take place in Los Angeles County. Any litigation arising out of this Agreement may only be brought DocuSign Envelope ID: 4F68C5EB-8460-44D2-87FD-D4CB5C8ACA4C 5/21/2020
- 6 -
in either the United States District Court, Central District of California, or the Superior Court of California, County of Los Angeles, West District, as appropriate.
The parties agree that venue exists in either court, and each party expressly waives any right to transfer to another venue. The parties further agree that either court will have personal jurisdiction over the parties to this Agreement.
24. Survival of Provisions and Obligations. Any provision of this Agreement, which by its nature must be exercised after termination of this Agreement, will survive termination and remain effective for a reasonable time. Any obligation that accrued prior to termination of this Agreement will survive termination of this Agreement.
25. Exhibits. The following exhibits are incorporated by reference into this Agreement as though fully set forth herein.
Exhibit A Scope of Services
Exhibit B Budget
Exhibit C Insurance Requirements
In witness whereof, the parties have caused this Agreement to be executed the day and year first above written.
ATTEST:
______________________________
DENISE ANDERSON-WARREN
City Clerk
APPROVED AS TO FORM:
______________________________
LANE DILG
City Attorney
CITY OF SANTA MONICA,
a municipal corporation
By: ______________________________
RICK COLE
City Manager
USMD Corporation
#VENDOR
By: ________________________________
DocuSign Envelope ID: 4F68C5EB-8460-44D2-87FD-D4CB5C8ACA4C Interim City Attorney
George S. Cardona
5/18/2020
5/18/2020
CEO
Fawad Zafar-Khan
Fawad Zafar-Khan MD
Lane Dilg
City Attorney
5/21/2020
Denise Anderson-Warren
5/21/2020
City Clerk
Exhibit A
Scope of Services
The following on-site occupational medical services are to be provided by USMD at various City facilities:
1. DOT Commercial Driver Medical Certification
Physical Exams will be conducted in accordance with the United States Department of Transportation (DOT) Commercial Driver Medical Certification regulations and include the following components:
Physician review of medical history component of the DOT Medical Examination Report for Commercial Driver Fitness with employee Basic Physical 1
Inguinal Hernia Check
Vision and Color Screen
Urinalysis
Physician Assessment of Commercial Driver Fitness
1 Basic Physical: height; weight; blood pressure; pulse rate; lung and chest check; head, eyes, ear, nose and throat check; abdomen check; nervous system check (i.e., reflexes, gate); musculosketal check, and flexibility and range of motion.
2. Vaccinations
Vaccinations will be administered in the following dosages:
Tdap (Tetanus / Diphtheria / Pertussis) 1 dose of vaccine MMR (Measles /Mumps / Rubella)
o Sworn fire personnel and Pier and Harbor Officers receive 2 doses of vaccine (due to health care duties)
o All other classifications receive 1 dose of vaccine.
Varicella 2 doses of vaccine
Hepatitis A only: 2 doses of vaccine
Hepatitis B only: 3 doses of vaccine
Twinrix: 3 doses of vaccine
Rabies (pre-exposure): 3 doses of vaccine
Flu
DocuSign Envelope ID: 4F68C5EB-8460-44D2-87FD-D4CB5C8ACA4C
3. Tuberculosis (TB) Screening Services:
TB Screenings will be subject to the following conditions:
Screening will be carried out using an FDA approved interferongamma release assay (IGRA) blood test Follow-up screening will be conducted on-site via the mobile medical van
Chest x-ray will be conducted on-site via mobile medical van for positive TB test
4. Agreement administration/performance requirements:
Coordination: USMD and Human Resources will assign a liaison to serve as each organization's primary contact for contract administration.
Facility: USMD mobile medical unit will be available to provide the scope of services identified in this Agreement, at a minimum, three times a month.
Personnel Assigned to Contract: USMD will ensure that all personnel assigned to this contract possess the required local, state and federal licenses and certificates to carry out the medical exams and laboratory tests set out in this agreement.
Recording and Transmitting Exam Results: USMD transmit results in compliance with all applicable privacy laws and City directives. Records Management and Retention: USMD will manage all medical records in compliance with all applicable medical privacy laws. Special Circumstances: In certain limited and special circumstances, USMD when requested by the City, will provide next day
appointments for exams.
Performance Standards: USMD will provide exam results to Human Resources within 3 business days of exam completion.
DocuSign Envelope ID: 4F68C5EB-8460-44D2-87FD-D4CB5C8ACA4C Exhibit B
Budget
The total compensation paid by the City to USMD under this Agreement shall not exceed $300,000. The City shall compensate USMD for the Services provided in accordance with the fee schedule below:
Service Cost
DOT Commercial Driver Medical Certification Testing
Medical Certification Exam $150
Vaccinations
Tdap $95
MMR (per vaccine) $135
Varicella (per vaccine) $170
Hepatitis A (per vaccine) $120
Hepatitis B (per vaccine) $120
Twinrix (per vaccine) $200
Rabies (per vaccine) $400
Flu $50
TB Screenings
TB Blood Test $99
Chest X-Ray for positive PPD (one view) $75
Chest X-Ray for positive PPD w/symptoms
(one view)
$75
DocuSign Envelope ID: 4F68C5EB-8460-44D2-87FD-D4CB5C8ACA4C Exhibit C
Insurance Requirements and Verifications
Consultant shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the Consultant, its agents, representatives, employees or subcontractors.
Minimum Scope and Limits of Insurance
Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal and advertising injury, with limits of no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (Insurance Services Office Form CG 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: Insurance Services Office Form CA 00 01 covering Code 1 (any auto), or if Consultant has no owned autos, Code 8 (hired) and Code 9 (non-owned), with limits of no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation: Workers’ Compensation insurance as required by the State of California, with Statutory Limits and Employers’ Liability Insurance with limits of no less than $1,000,000 per accident for bodily injury or disease (see footnote #1).
4. Professional Liability: Insurance appropriate to the Consultant’s profession with limits of no less than $1,000,000 per occurrence or claim/$2,000,000 in the annual aggregate.
If the Consultant maintains broader coverage or higher limits than the minimums shown above, the City of Santa Monica requires and shall be entitled to any broader coverage and higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City of Santa Monica.
Other Insurance Provisions
1. The insurance policies are to contain, or be endorsed to contain, the following provisions:
DocuSign Envelope ID: 4F68C5EB-8460-44D2-87FD-D4CB5C8ACA4C a. Additional Insured Status: The City of Santa Monica, its officers, officials, employees and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of Consultant including materials, parts, or equipment furnished in connection with such work or operations. CGL coverage can be provided in the form of an endorsement to the Consultant’s insurance (at least as broad as Insurance Services Office Form CG 20 10 11 85, or if not available, through the addition of a combination of (1) CG 20 10, CG 20 26, CG 20 33, or CG 20 38 and (2) CG 20 37).
b. Primary Coverage: For any claims related to this Agreement, the Consultant’s insurance shall be primary coverage at least as broad as Insurance Services Offices Form CG 20 01 04 13 as respects the City of Santa Monica, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the City of Santa Monica, its officers, officials, employees or volunteers shall be in excess of the Consultant’s insurance and shall not contribute with it. c. Notice of Cancellation: Each insurance policy required herein shall state that coverage shall not be cancelled except after notice has been given to the City of Santa Monica.
d. Waiver of Subrogation: Consultant hereby grants to the City of Santa Monica a waiver of any right of subrogation which any insurer of said Consultant may acquire against the City of Santa Monica by virtue of payment of any loss. Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City of Santa Monica has received a waiver of subrogation endorsement from the insurer.
Self-Insured Retentions
Self-insured retentions must be declared to and approved by the City of Santa Monica. The City of Santa Monica may require the Consultant to purchase coverage with a lower retention or provide satisfactory proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City of Santa Monica.
Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in California with a current A.M. Best rating of no less than A:VII, unless otherwise acceptable to the City of Santa Monica.
Claims Made Policies
DocuSign Envelope ID: 4F68C5EB-8460-44D2-87FD-D4CB5C8ACA4C
1. If the Professional Liability policy provides “claims made” coverage:
a. The Retroactive Date must be shown and must be before the date of this Agreement or the start of work.
b. The insurance must be maintained, and evidence of insurance must be provided for at least 5 years after completion of work.
c. If the policy is cancelled or not renewed, and not replaced with another “claims made” policy form with a Retroactive Date prior to the effective Agreement date, the Consultant must purchase “extended reporting” coverage for a minimum of 5 years after completion of work.
Verification of Coverage
Consultant shall furnish the City of Santa Monica with original certificates and amendatory endorsements (or copies of the applicable policy language effecting coverage provided by this clause). All certificates and endorsements are to be received and approved by the City of Santa Monica before work commences. However, failure to obtain required documents prior to the work beginning shall not waive the Consultant’s obligation to provide them.
The City of Santa Monica reserves the right to require complete, certified copies of all required insurance policies, including the endorsements required herein, at any time.
Failure to Maintain Insurance Coverage
If Consultant, for any reason, fails to maintain insurance coverage which is required pursuant to this Agreement, the same shall be deemed a material breach of contract. The City of Santa Monica, at its sole option, may terminate this Agreement and obtain damages from the Consultant resulting from said breach.
Subcontractors
Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein. All exceptions must be approved in writing by the Risk Manager.
Footnotes
# 1: Workers’ Compensation insurance coverage is not required if the Consultant does not have employees. The Consultant must, however, execute the City’s Workers’ Compensation Coverage Exemption Declaration Form.
DocuSign Envelope ID: 4F68C5EB-8460-44D2-87FD-D4CB5C8ACA4C