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Ordinance No. 11,278OR- DINANCE NO. 11.279 AN ORDINANCE 01 THE CITY COUNCIL OF THE CITY OF BAYTOWN. TEXAS_ AU "1-1IORIZING A PURCHASED SERVICES AGREEMENT V6111 -11 JACINTO MEDICAL GROUP. P.A.. FOR AN EMPLOYEE I IEAL'I -I1 CLINIC INCLUDING '1111 MEDICAL. SERVICES, SUPPLIES AND LOCATION: AUl'1- IORIZING PAYMENT 13Y THE CITY OF BAYTOWN OF AN AMOUNT NO "1' '1'O [_:XCEED ONE HUNDRED TWENTY THOUSAND AND NO /1 00 DOLLARS ($120,000.00): AND PROVIDING FOR THE EFFECTfVE DATE -1-HEREOF. BE IT ORDAINED BY THE CITY COUrN`CLL OF THE CITY OF BAVTO\VN_ TEXAS: Section 1: That the City- Council of the City of Baytown. Texas. hereby authorizes the City I lanager to execute and the City Clerk to attest to a Purchased Services Agreement with Jacinto Medical Group. P.A., for an employee health clinic including the medical services. supplies and location. A copy of the Second Amendment is attached hereto as Exhibit "A'- and incorporated herein for all intents and purposes. Section 2: That the City Council of the Cite of Baytown authorizes payment to Jacinto Medical Group, P.A._ of the suni of ONE U UNDRED TWENTY " 1HOUSAND AND NO /100 DOLLARS ($120.000.00). pursuant to the Agreement. Section 3: "That the City I/lanager is hereby granted general authority to approve any change order Involving a decrease or an increase in costs of TWENTY -DIVE THOUSAND AND NO /100 DOLLARS ($25,000.00) or less: however, the original contract price may not be increased by more than twenty -five percent (25 %) or decreased by more than twenty-five percent (25 %) without the consent of the contractor to such decrease. Section 4: This ordinance shall take effect immediately li-orn and after its passage by the City Council of the City of Bay'to%vn. INTRODUCED, READ and PASSED by the affinrtative vote of tl City Council of the City of Baytown this the 10 °iday of December, 2009. APPROVED AS `I -O FORM: S,�F0EPMr1V"?-r DONCARLOS_ Mayor ACID RANIIREZ. SR., Cil v Attorney R_\Karen \1-i1es\City Council \Ordinances\2009 \December IOL TacintoPurchasedServicesC "iitracr.doc Exhibit "A" PURCHASED SERVICES AGREEMENT STATE OF TEXAS § COUNTY OF HARRIS § THIS AGREEMENT FOR PURCHASED SERVICES (the `Agreement ") is made and entered into as of the 1 S` day of January. 2010 (the "Effective Date ") by and between the City of Baytown. a Texas home -rule municipal corporation ("City ") and Jacinto Medical Group, P.A., a Texas professional association ("Provider'). RECITALS: WHEREAS. Provider will provide certain medical services to eligible City employees and retirees and their spouses if covered under the City's medical plan (the "Patients ") at the Provider's location in the City of Baytown; and WHEREAS. City will reimburse the Provider for expenses of the salary and benefits for a licensed nurse practitioner /physician's assistant as outlined in this Agreement; and WHEREAS, Provider and City desire that the Provider provide services set forth in this Agreement in accordance with the terms and conditions set forth herein. NOW. THEREFORE, for valuable consideration and intending to be legally bound by the terms. conditions and covenants hereinafter set forth. the parties agree as follows: Provider Responsibilities. a. Provider will provide the services detailed in Exhibit `'A," which is attached hereto and incorporated herein for all intents and purposes, in the manner and at the times set forth therein ("the Services "). The Services will not include inpatient hospital services or emergency room consultations or other services specifically excluded on Exhibit "A ". b. Provider shall provide all reports and records required by City pertaining to the Services rendered to Patients during specified times as outlined in this Agreement except otherwise prohibited by HIPAA. C. Provider will send monthly statements of services rendered along with supporting documentation as may be required by City to City that are consistent with Provider's current fee schedule. Purchased Services Agreement. Page I d. Provider shall perform all services under this Agreement with the care and skill ordinarily used by members of Provider's profession practicing under the same or similar circumstances, time and locality. Professional shall be responsible for the technical accuracy of its services and documents resulting therefrom. 2. City Responsibilities. a. City will agree to reimburse the Provider for the salary and benefits of the nurse practitioner /physician assistant as outlined in this Agreement. Payment shall be due as set forth on Exhibit "A ". City will cooperate with Provider in the provision of Services with all required information needed for the Provider to provide the Services. Term and Termination. C1. Teem. This Agreement shall be effective for an initial term of one (1) year commencing on the Effective Date, and may be renewed for additional one - year periods upon agreement of the parties under the terms and conditions specified herein. Each renewal must be evidenced in writing and approved by the appropriate authorities of each party. Such renewal shall be for the same compensation set forth herein: provided that such compensation may be adjusted to reflect the Consumer Price Index (Urban) sixty -four (64) days prior to the effective date of the renewal if such increase is requested at least 90 days prior to the termination of the then current term. b. Termination by City. The City, besides all other rights or remedies it may have. shall have the right to terminate this Agreement with or without cause upon thirty (30) days' written notice from the City Manager to Provider of the City's election to do so. Upon delivery of any notice of termination required herein. Provider shall discontinue all services In connection with the performance of the Agreement. Within thirty (30) days after receipt of the notice of tennination. Provider shall submit a final statement showing in detail the services satisfactorily performed and accepted and all other appropriate documentation required herein for payment of services, if this Agreement is terminated for cause, Provider shall be liable for any damage to the City resulting therefrom. This liability includes any actual, direct and reasonable damages incurred by the City in completing Provider's work and subject to the City's right to mitigate its damages. The rights and remedies of the City in this section are in addition to any other rights and remedies provided by law or under this Agreement. Termination by Provider. This Agreement shall terminate upon cessation of the all clinical services of Jacinto Medical Group: provided Provider gives at least thirty (30) days' prior written notice. Within ten (10) days after the termination of this Agreement pursuant to this section. Provider shall submit a final statement showing in detail the services satisfactorily performed and accepted and all other appropriate documentation required herein for payment of services. Purchased Services Agreement. Page 2 4. Compliance a. Compliance tivith .Applicable Lmvs. The parties agree that they shall comply with all applicable federal, state, and local laws. regulations. and governmental orders in performing their respective obligations under this Agreement including, but not limited to, the statutes and regulations of the Texas Department of Health and the United States Department of Health and Human Services. the standards of the Joint Commission on Accreditation of Healthcare Organizations. all requirements of the Medicare and Medicaid programs, all state or national professional ethical guidelines. the federal and state anti- kickback laws, the Stark law, and the federal False Claims Act. b. Access to Books and Records. The Provider will allow access to records of the City if the Patient is obtaining Services as a result of this Agreement. Representation of t\jon- Exclusion. The Provider represents and warrants that it is not on an excluded party list as outlined by State or Federal Program. Provider also represents that if it or an employee who provides Services under this Agreement becomes excluded from a State or Federal Program Provider will promptly notify City. Indemnity: Insurance a. Indemnity. AND HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES (HEREINAFTER REFERRED TO AS THE "CITY") FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS, AND REASONABLE ATTORNEY'S FEES, FOR INJURY TO OR DEATH OF ANY PERSON, FOR DAMAGE TO ANY PROPERTY, OR FOR ANY BREACH OF CONTRACT, ARISING OUT OF, OR IN CONNECTION WITH THE WORK DONE BY PROVIDER UNDER THIS CONTRACT CAUSED BY THE SOLE OR JOINT NEGLIGENCE OF PROVIDER. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH PROVIDER AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY PROVIDER TO INDEMNIFY AND PROTECT THE CITY FROM THE CONSEQUENCES OF PROVIDER'S OWN NEGLIGENCE, WHETHER THAT NEGLIGENCE IS THE SOLE OR A CONCURRING CAUSE OF THE RESULTING INJURY, DEATH OR DAMAGE. SUCH Purchased Services Agreement. Page 3 INDEMNITY SHALL ONLY APPLY TO THE PROPORTIONATE SHARE OF PROVIDER'S NEGLIGENCE AND SHALL NOT APPLY, HOWEVER, TO LIABILITY ARISING FROM THE PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE OF PERSONS THAT IS CAUSED BY OR RESULTS FROM THE SOLE NEGLIGENCE OF THE CITY. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE CITY FROM WHICH THE CITY IS INDEMNIFIED, PROVIDER FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL REASONABLY ACCEPTABLE TO THE CITY. THE INDEMNITY PROVIDED FOR IN THIS SECTION SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT. b. Insurance. Throughout the term of this Agreement. Provider at its own expense shall purchase. maintain and keep in force and effect insurance against claims for injuries to or death of persons or damages to property which may arise out of or result from Providers operations and /or performance of the Services under this Agreement whether such operations and /or performance be by Provider, its agents, representatives, volunteers. employees or subcontractors or by anyone directly or indirectly employed by any of them. or by anyone for whose acts any of them may be liable. Any insurance or self - insurance maintained by the City, its officials. agents and employees shall be considered in excess of Provider's insurance and shall not contribute to it. All of Provider's insurance below shall be placed with admitted carriers having a current A.M. Best rating of not less than A- Vlll. Alternatively, Provider may self- insure or place coverage with any non -rated insurers for any of the risks referred to below only if the Long -Term Issue Credit Rating of their respective parent entity is BBB or higher ( "Investment Grade ") by the current Rating Definitions and Terminology of Standard & Poor's: 1. Workers Compensation with statutory limits & Employers' Liability with minimum limits of $1,000.000 as required by law. A waiver of subrogation shall be provided for the benefit of the City. 2. Commercial General Liability including Premises /Operations, Products /Completed Operations, Contractual Liability, Independent Contractor's Liability. Broad Form Property Damage, Personal /Advertising Injury with minimum limits of $1,000.000 per occurrence and $1.000,000 general aggregate. Purchased Services Agreement. Page 4 3. Automobile Liability with a minimum combined single limit of $1,000,000 per occurrence and $1,000,000 general aggregate. The City, its officers, agents and employees shall be listed as additional insured on this policy. 4. Errors and Omissions /Professional Liability with individual limits of $1.000.000 for each claim and $3.000.000 annual aggregate limit. Upon execution of this Agreement, Provider shall file with the City valid Certificates of Coverage. Such Certificates shall contain a provision that coverage afforded under the policies will not be canceled, suspended, voided, or reduced until at least thirty (30) days' written notice has been given to the City. 6. Notices. All notices required to be given hereunder shall be given in writing either by personal delivery or certified or registered mail at the respective addresses of the parties set forth herein or at such other address as may be designated in writing by either party. Notice given by mail shall be deemed given three (3) days after the date of mailing thereof to the following addresses: If to Provider: Jacinto Medical Group, P.A. 2800 Garth Road Baytown, Texas 77520 Fax: 281 - Attn: If to City: City of Baytown P.O. Box 424 Baytown. Texas 77522 Fax: 281 - 420 -6586 Attn: City Manager Any notice given in accordance with this section shall be deemed to have been given upon delivery or, if mailed, upon the earlier of receipt or three (3) days after deposit, except that notice of change of address shall not be deemed effective until actual receipt by the intended recipient. Miscellaneous. a. Governing Lmv: Severability. This Agreement shall be construed under, and governed in accordance with. the laws of the state of Texas without giving effect to its choice of law provisions. with venue exclusively in Harris County. The invalidity or unenforceability of any provision herein shall not affect the validity or enforceability of any other provision. b. Nondiscrimination. Neither party shall discriminate in the performance of its obligations under the this Agreement on the basis of race, color, sex. age, religion, national origin. sexual orientation, pregnancy, marital status. Purchased Services Agreement, Page 5 veteran status, handicap or status as a beneficiary of a governmental health program. C. Headings. The headings of this Agreement are inserted for convenience only and shall never be considered or given any effect in construing this Agreement or any provision hereof, or in connection with the duties, obligations or liabilities of the respective parties hereto or in ascertaining intent, if any question of intent should arise. d. No Waiver. Failure of either party hereto to insist on the strict performance of any of the agreements herein or to exercise any rights or remedies accruing hereunder upon default or failure of performance shall not be considered a waiver of the right to insist on and to enforce by an appropriate remedy, strict compliance with any other obligation hereunder to exercise any right or remedy occurring as a result of any future default or failure of performance. e. Release. By this Agreement, except for Provider's rights under state law including, but not limited to. Texas Civil Practice & Remedies Code §101, et. seq., the City does not consent to litigation or suit, and the City hereby expressly revokes any consent to litigation that it may have granted by the terms of this Contract or any other contract or agreement, any charter. or applicable state law. Nothing contained herein shall be construed in any way so as to waive in whole or part the City's sovereign immunity. Provider assumes full responsibility for its work performed hereunder and hereby releases, relinquishes and discharges the City, its officers, agents. and employees from all claims, demands. and causes of action of every kind and character. including the cost of defense thereof, for any injury to or death of any person (whether they be either of the parties hereto, their employees, or other third parties) and any loss of or damage to property (whether the property be that of either of the parties hereto. their employees, or other third parties) that is caused by or alleged to be caused by, arising out of, or in connection with Provider's negligent or willful acts or omissions relating to the work to be performed hereunder. This release shall apply with respect to Provider's work regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. f. Independent Conn•actor. It is expressly agreed and understood by all parties hereto that the Provider is an independent contractor in its relationship to the City. Nothing herein contained at any time or in any manner shall be construed to effect a contract of partnership or joint venture or render any party hereto the employer or master of any other party and /or its employees, agents or representatives. All necessary personnel shall be deemed employees of the Provider. g. Assigns. Neither party may assign this Agreement or any right or obligation hereunder without the prior written consent of the other party, which shall not be unreasonably withheld or delayed; provided, however, that no consent shall be necessary in the event of an assignment to a successor entity resulting from a merger, acquisition or consolidation by either party Purchased Services Agreement. Page 6 or an assignment to an Affiliate of either party if such successor or Affiliate assumes all obligations under this Agreement. Any attempted assignment, which requires consent hereunder, shall be void and shall constitute a material breach of this Agreement if such consent is not obtained. Survival. Any provisions of this Agreement creating obligations extending beyond the term of this Agreement will survive the expiration or termination of this Agreement, regardless of the reason for such termination. i. Interpretation of Agreement This Agreement shall be interpreted as though prepared by all parties and shall not be construed unfavorably against either party. Entire Agreement; Amendment. This Agreement constitutes the entire agreement of the parties hereto and supersedes all prior or contemporaneous agreements, undertakings and understandings of the parties in connection with the subject matter hereof. This Agreement may be modified or amended only in writing duly signed by both parties. k. Confidentiality. In order to facilitate the performance of this Agreement, each party may deem it necessary to disclose to the other certain proprietary and /or confidential information. Such information may include. without limitation. patient information, personnel information, financial information, market information, pricing information and service delivery information. Each party agrees to keep such information oi' the other party confidential and not to disclose or use such confidential information except in accordance with this Agreement or as may be otherwise be required by law. Health Insurance Portability and Accountability Act Of 1996 ( "HIPAA '9. The parties have determined that as of the Effective Date ol'this Agreement, they do not need to enter into a Business Associate Agreement, pursuant to 45 C.F.R. SEC 164.502(e)(1)(ii)(A). If at any time during this Agreement the parties determine that they either need to amend this Agreement or enter into any ancillary agreements in order to comply with HIPAA, they will work together in good faith to make such amendments or execute such agreements in a timely manner. In addition. the parties agree that they will comply with all applicable federal and state laws (including, but not limited to. HIPAA) regarding patient privacy. m. Force Majeure. Neither party shall be liable nor deemed to be in default for any delay or failure in performance under this Agreement or other interruption of service or employment deemed resulting directly or indirectly, from Acts of God, civil or military authority, acts of public enemy war terrorism. accidents. fires, explosions, earthquakes, Ilood, failure of transportation, strikes or other work interruptions by either party's employees, or any similar or dissimilar cause beyond the reasonable control of either party. n. Multiple Counterparts. This Agreement may be executed in multiple counterparts, each of which so executed shall be deemed to be an original, Purchased Services Agreement, Page 7 but all such counterparts together constitute but one and the same instrument. o. Alo Third Party Beneficiaries. The provisions of this Agreement are for the benefit of the parties and not for any other person or entity. Nothing contained in the Agreement shall give or allow any claim or right of action whatsoever by any third person. It is the express intent of City and Provider that any such person or entity. other than City or Provider, receiving services or benefits under this Agreement shall be deemed an incidental beneficiary. P. Incurring Financial Obligation. City will not incur any financial obligation on behalf of Provider without the prior written approval of Provider. No Arbitration. Notwithstanding anything to the contrary contained in this Agreement. the City and Provider hereby agree that no claim or dispute between the City and Provider arising out of or relating to this Agreement shall be decided by any arbitration proceeding including. without limitation, any proceeding under the Federal Arbitration Act (9 U.S.C. Sections 1 -14), or any applicable State arbitration statute, including, but not limited to. the Texas General Arbitration Act, provided that in the event that the City is subjected to an arbitration proceeding notwithstanding this provision, Provider consents to be joined in the arbitration proceeding if Provider's presence is required or requested by the City of complete relief to be recorded in the arbitration proceeding. r. Authority. The officers executing this Agreement on behalf of the parties hereby represent that such officers have full authority to execute this Agreement and to bind the party he /she represents. IN WITNESS WHEREOF. the parties hereto have executed this Agreement as of the date first above written. JACINTO MEDICAL GROUP. P.A. Title: Date: Purchased Services Agreement. Page 8 CITY OF BAYTOWN By: GARRISON C. BRUMBACK Title: City Manager Date: ATTEST: LETICIA GARZA, City Clerk APPROVED AS TO FORM: IGNACIO RAMIREZ. SR.. City Attorney STATE OF TEXAS 5 COUNTY OF HARRIS S Before me, the undersigned notary public. on this day personally appeared the of Jacinto Medical Group, P.A.. a Texas professional association. known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he /she executed the same for the purposes and consideration therein expressed. SUBSCRIBED AND SWORN before me this day of December, 2009. Notary Public in and for the State of Texas Purchased Services Agreement, Page 9 EXHIBIT A SERVICES The City of Baytown (City) will reimburse the Provider for the salary and benefits, including medical malpractice insurance, of a licensed nurse practitioner /physician's assistant in the amount of ONE HUNDRED TWENTY THOUSAND AND NO /100 DOLLARS $120,000.00. which shall be paid quarterly in equal installments of THIRTY TI- IOUSAND AND NO /100 DOLLARS ($30,000.00) provided the City has received the satisfactory statements and supporting information as provided in Section 1 of the Agreement. The Provider will: • employ a nurse practitioner /physician's assistant, who shall: o be subject to employment guidelines specified by the Provider; o shall at all times be deemed an employee of the Provider, not tile City; o perform services as authorized by this Agreement and in accordance with the applicable State licensure rules, regulations and laws; and o practice under the supervision of the Medical Director of the Provider; • at all times under this Agreement provide within the City of Baytown a site of sufficient size for the nurse practitioner /physician's assistant to perform medical services to the Patients as required herein: • maintain such site in good order and in compliance with all applicable codes and ordinances of the City of Baytown as well as all state and federal rules. regulations and laws: provide the following: o medical examinations; o minor medical treatment: • vaccine administration: • wellness C011SUltatlons; • off -site City Health Wellness Events on days of service dedicated to City; • drug and alcohol specimen collection (only if a nurse practitioner /physician's assistant holds the appropriate certification); • prescriptions if the nurse practitioner /physician assistant in the clinic holds appropriate licensure; o examination room within the city limits of the City of Baytown. including an office area: o supplies: o reports and records: o support services for the nurse practitioner /physician's assistant for registering Patients, scheduling appointments for Patients. and reporting requirements of the City: and ➢ provide medical services specifically for Patients at the Providers location in Baytown three days a week — eight hours a day during those days and hours agreed to in writing by the City of Baytown's Director of Human Resources and Provider's Medical Director. The Services specifically exclude the following, which may be performed at tile City's request at Providers current fee schedule: Exhibit "A." Page I r workers' comp injury care - injuries are to be seen by the attending physician (services will be billed to City of Baytown's Workers Compensation Carrier); Medical Review Officer services; drug and alcohol testing (can only collect specimen): routine visits for Patients who are utilizing the attending physician as their personal primary care physician (this service billed to patient's personal medical insurance and will be subject to co- pays /deductible in accordance with insurance agreement); physician fees associated with injury care; and any and all testing expenses such as: drug screens, pulmonary function tests, EKG's. stress tests. interpretations by the attending physician, medication /immunizations such as vaccines. attending physician consultations if required. Exhibit' A:' Page 2 PURCHASED SERVICES AGREEMENT STATE OF TEXAS COUNTY OF HARRIS § THIS AGREEMENT FOR PURCHASED SERVICES (the "Agreement") is made and entered into as of the 1st day of January, 2010 (the "Effective Date") by and between the City of Baytown, a Texas home-rule municipal corporation ("City") and Jacinto Medical Group, P.A., a Texas professional association("Provider"). RECITALS: WHEREAS, Provider will provide certain medical services to eligible City employees and retirees and their spouses if covered under the City's medical plan (the Patients") at the Provider's location in the City of Baytown; and WHEREAS, City will reimburse the Provider for expenses of the salary and benefits for a licensed nurse practitioner/physician's assistant as outlined in this Agreement; and WHEREAS, Provider and City desire that the Provider provide services set forth in this Agreement in accordance with the terms and conditions set forth herein. NOW, THEREFORE, for valuable consideration and intending to be legally bound by the terms, conditions and covenants hereinafter set forth,the parties agree as follows: 1. Provider Responsibilities. a. Provider will provide the services detailed in Exhibit "A," which is attached hereto and incorporated herein for all intents and purposes, in the manner and at the times set forth therein ("the Services"). The Services will not include inpatient hospital services or emergency room consultations or other services specifically excluded on Exhibit"A". b. Provider shall provide all reports and records required by City pertaining to the Services rendered to Patients during specified times as outlined in this Agreement except otherwise prohibited by HIPAA. c. Provider will send monthly statements of services rendered along with supporting documentation as may be required by City to City that are consistent with Provider's current fee schedule. Purchased Services Agreement,Page 1 d. Provider shall perform all services under this Agreement with the care and skill ordinarily used by members of Provider's profession practicing under the same or similar circumstances, time and locality. Professional shall be responsible for the technical accuracy of its services and documents resulting therefrom. 2. City Responsibilities. a. City will agree to reimburse the Provider for the salary and benefits of the nurse practitioner/physician assistant as outlined in this Agreement. Payment shall be due as set forth on Exhibit"A". b. City will cooperate with Provider in the provision of Services with all required information needed for the Provider to provide the Services. 3. Term and Termination. a. Term. This Agreement shall be effective for an initial term of one (1) year commencing on the Effective Date, and may be renewed for additional one- year periods upon agreement of the parties under the terms and conditions specified herein. Each renewal must be evidenced in writing and approved by the appropriate authorities of each party. Such renewal shall be for the same compensation set forth herein; provided that such compensation may be adjusted to reflect the Consumer Price Index(Urban) sixty-four(64) days prior to the effective date of the renewal if such increase is requested at least 90 days prior to the termination of the then current term. b. Termination by City. The City, besides all other rights or remedies it may have, shall have the right to terminate this Agreement with or without cause upon thirty (30) days' written notice from the City Manager to Provider of the City's election to do so. Upon delivery of any notice of termination required herein, Provider shall discontinue all services in connection with the performance of the Agreement. Within thirty (30) days after receipt of the notice of termination, Provider shall submit a final statement showing in detail the services satisfactorily performed and accepted and all other appropriate documentation required herein for payment of services. If this Agreement is terminated for cause, Provider shall be liable for any damage to the City resulting therefrom. This liability includes any actual, direct and reasonable damages incurred by the City in completing Provider's work and subject to the City's right to mitigate its damages. The rights and remedies of the City in this section are in addition to any other rights and remedies provided by law or under this Agreement. c. Termination by Provider. This Agreement shall terminate upon cessation of the all clinical services of Jacinto Medical Group; provided Provider gives at least thirty (30) days' prior written notice. Within ten (10) days after the termination of this Agreement pursuant to this section, Provider shall submit a final statement showing in detail the services satisfactorily performed and accepted and all other appropriate documentation required herein for payment of services. Purchased Services Agreement,Page 2 4. Compliance a. Compliance with Applicable Laws. The parties agree that they shall comply with all applicable federal, state, and local laws, regulations, and governmental orders in performing their respective obligations under this Agreement including, but not limited to, the statutes and regulations of the Texas Department of Health and the United States Department of Health and Human Services, the standards of the Joint Commission on Accreditation of Healthcare Organizations, all requirements of the Medicare and Medicaid programs, all state or national professional ethical guidelines, the federal and state anti-kickback laws, the Stark law, and the federal False Claims Act. b. Access to Books and Records. The Provider will allow access to records of the City if the Patient is obtaining Services as a result of this Agreement. c.Representation of Non-Exclusion. The Provider represents and warrants that it is not on an excluded party list as outlined by State or Federal Program. Provider also represents that if it or an employee who provides Services under this Agreement becomes excluded from a State or Federal Program Provider will promptly notify City. 5. Indemnity; Insurance a. Indemnity. PROVIDER AGREES TO AND SHALL INDEMNIFY AND HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES HEREINAFTER REFERRED TO AS THE "CITY") FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS, AND REASONABLE ATTORNEY'S FEES, FOR INJURY TO OR DEATH OF ANY PERSON, FOR DAMAGE TO ANY PROPERTY, OR FOR ANY BREACH OF CONTRACT, ARISING OUT OF, OR IN CONNECTION WITH THE WORK DONE BY PROVIDER UNDER THIS CONTRACT CAUSED BY THE SOLE OR JOINT NEGLIGENCE OF PROVIDER. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH PROVIDER AND THE CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY PROVIDER TO INDEMNIFY AND PROTECT THE CITY FROM THE CONSEQUENCES OF PROVIDER'S OWN NEGLIGENCE, WHETHER THAT NEGLIGENCE IS THE SOLE OR A CONCURRING CAUSE OF THE RESULTING INJURY, DEATH OR DAMAGE. SUCH Purchased Services Agreement,Page 3 INDEMNITY SHALL ONLY APPLY TO THE PROPORTIONATE SHARE OF PROVIDER'S NEGLIGENCE AND SHALL NOT APPLY, HOWEVER, TO LIABILITY ARISING FROM THE PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE OF PERSONS THAT IS CAUSED BY OR RESULTS FROM THE SOLE NEGLIGENCE OF THE CITY. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE CITY FROM WHICH THE CITY IS INDEMNIFIED, PROVIDER FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL REASONABLY ACCEPTABLE TO THE CITY. THE INDEMNITY PROVIDED FOR IN THIS SECTION SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT. b. Insurance. Throughout the term of this Agreement, Provider at its own expense shall purchase, maintain and keep in force and effect insurance against claims for injuries to or death of persons or damages to property which may arise out of or result from Providers operations and/or performance of the Services under this Agreement whether such operations and/or performance be by Provider, its agents, representatives, volunteers, employees or subcontractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. Any insurance or self-insurance maintained by the City, its officials, agents and employees shall be considered in excess of Provider's insurance and shall not contribute to it. All of Provider's insurance below shall be placed with admitted carriers having a current A.M. Best rating of not less than A- VIII. Alternatively, Provider may self-insure or place coverage with any non-rated insurers for any of the risks referred to below only if the Long-Term Issue Credit Rating of their respective parent entity is BBB or higher ("Investment Grade") by the current Rating Definitions and Terminology of Standard& Poor's: 1. Workers Compensation with statutory limits & Employers' Liability with minimum limits of $1,000,000 as required by law. A waiver of subrogation shall be provided for the benefit of the City. 2. Commercial General Liability including Premises/Operations, Products/Completed Operations, Contractual Liability, Independent Contractor's Liability, Broad Form Property Damage, Personal/Advertising Injury with minimum limits of $1,000,000 per occurrence and $1,000,000 general aggregate. Purchased Services Agreement,Page 4 3. Automobile Liability with a minimum combined single limit of 1,000,000 per occurrence and $1,000,000 general aggregate. The City, its officers, agents and employees shall be listed as additional insured on this policy. 4. Errors and Omissions/Professional Liability with individual limits of 1,000,000 for each claim and $3,000,000 annual aggregate limit. Upon execution of this Agreement, Provider shall file with the City valid Certificates of Coverage. Such Certificates shall contain a provision that coverage afforded under the policies will not be canceled, suspended, voided, or reduced until at least thirty (30) days' written notice has been given to the City. 6. Notices. All notices required to be given hereunder shall be given in writing either by personal delivery or certified or registered mail at the respective addresses of the parties set forth herein or at such other address as may be designated in writing by either party.Notice given by mail shall be deemed given three (3) days after the date of mailing thereof to the following addresses: If to Provider: Jacinto Medical Group, P.A. 2800 Garth Road Baytown, Texas 77520 Fax: 281- Attn: If to City: City of Baytown P.O. Box 424 Baytown, Texas 77522 Fax: 281-420-6586 Attn: City Manager Any notice given in accordance with this section shall be deemed to have been given upon delivery or, if mailed, upon the earlier of receipt or three (3) days after deposit, except that notice of change of address shall not be deemed effective until actual receipt by the intended recipient. 7. Miscellaneous. a. Governing Law: Severability. This Agreement shall be construed under, and governed in accordance with, the laws of the state of Texas without giving effect to its choice of law provisions, with venue exclusively in Harris County. The invalidity or unenforceability of any provision herein shall not affect the validity or enforceability of any other provision. b. Nondiscrimination. Neither party shall discriminate in the performance of its obligations under the this Agreement on the basis of race, color, sex, age, religion, national origin, sexual orientation, pregnancy, marital status, Purchased Services Agreement,Page 5 veteran status, handicap or status as a beneficiary of a governmental health program. c. Headings. The headings of this Agreement are inserted for convenience only and shall never be considered or given any effect in construing this Agreement or any provision hereof, or in connection with the duties, obligations or liabilities of the respective parties hereto or in ascertaining intent, if any question of intent should arise. d. No Waiver. Failure of either party hereto to insist on the strict performance of any of the agreements herein or to exercise any rights or remedies accruing hereunder upon default or failure of performance shall not be considered a waiver of the right to insist on and to enforce by an appropriate remedy, strict compliance with any other obligation hereunder to exercise any right or remedy occurring as a result of any future default or failure of performance. e. Release. By this Agreement, except for Provider's rights under state law including, but not limited to, Texas Civil Practice & Remedies Code §101, et. seq., the City does not consent to litigation or suit, and the City hereby expressly revokes any consent to litigation that it may have granted by the terms of this Contract or any other contract or agreement, any charter, or applicable state law. Nothing contained herein shall be construed in any way so as to waive in whole or part the City's sovereign immunity. Provider assumes full responsibility for its work performed hereunder and hereby releases, relinquishes and discharges the City, its officers, agents, and employees from all claims, demands, and causes of action of every kind and character, including the cost of defense thereof, for any injury to or death of any person (whether they be either of the parties hereto, their employees, or other third parties) and any loss of or damage to property (whether the property be that of either of the parties hereto, their employees, or other third parties) that is caused by or alleged to be caused by, arising out of, or in connection with Provider's negligent or willful acts or omissions relating to the work to be performed hereunder. This release shall apply with respect to Provider's work regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. f. Independent Contractor. It is expressly agreed and understood by all parties hereto that the Provider is an independent contractor in its relationship to the City. Nothing herein contained at any time or in any manner shall be construed to effect a contract of partnership or joint venture or render any party hereto the employer or master of any other party and/or its employees, agents or representatives. All necessary personnel shall be deemed employees of the Provider. g. Assigns. Neither party may assign this Agreement or any right or obligation hereunder without the prior written consent of the other party, which shall not be unreasonably withheld or delayed; provided, however, that no consent shall be necessary in the event of an assignment to a successor entity resulting from a merger, acquisition or consolidation by either party Purchased Services Agreement,Page 6 or an assignment to an Affiliate of either party if such successor or Affiliate assumes all obligations under this Agreement. Any attempted assignment, which requires consent hereunder, shall be void and shall constitute a material breach of this Agreement if such consent is not obtained. h. Survival. Any provisions of this Agreement creating obligations extending beyond the term of this Agreement will survive the expiration or termination of this Agreement, regardless of the reason for such termination. Interpretation of Agreement This Agreement shall be interpreted as though prepared by all parties and shall not be construed unfavorably against either party. j. Entire Agreement; Amendment. This Agreement constitutes the entire agreement of the parties hereto and supersedes all prior or contemporaneous agreements, undertakings and understandings of the parties in connection with the subject matter hereof. This Agreement may be modified or amended only in writing duly signed by both parties. k. Confidentiality. In order to facilitate the performance of this Agreement, each party may deem it necessary to disclose to the other certain proprietary and/or confidential information. Such information may include, without limitation,patient information, personnel information, financial information, market information, pricing information and service delivery information. Each party agrees to keep such information of the other party confidential and not to disclose or use such confidential information except in accordance with this Agreement or as may be otherwise be required by law. Health Insurance Portability and Accountability Act Of 1996 ("HIPAA '9. The parties have determined that as of the Effective Date of this Agreement, they do not need to enter into a Business Associate Agreement, pursuant to 45 C.F.R. SEC 164.502(e)(I)(ii)(A). If at any time during this Agreement the parties determine that they either need to amend this Agreement or enter into any ancillary agreements in order to comply with HIPAA, they will work together in good faith to make such amendments or execute such agreements in a timely manner. In addition, the parties agree that they will comply with all applicable federal and state laws (including, but not limited to, HIPAA) regarding patient privacy. m. Force Majeure. Neither party shall be liable nor deemed to be in default for any delay or failure in performance under this Agreement or other interruption of service or employment deemed resulting directly or indirectly, from Acts of God, civil or military authority, acts of public enemy war terrorism, accidents, fires, explosions, earthquakes, flood, failure of transportation, strikes or other work interruptions by either party's employees, or any similar or dissimilar cause beyond the reasonable control of either party. n. Multiple Counterparts. This Agreement may be executed in multiple counterparts, each of which so executed shall be deemed to be an original, Purchased Services Agreement, Page 7 but all such counterparts together constitute but one and the same instrument. o. No Third Party Beneficiaries. The provisions of this Agreement are for the benefit of the parties and not for any other person or entity. Nothing contained in the Agreement shall give or allow any claim or right of action whatsoever by any third person. It is the express intent of City and Provider that any such person or entity, other than City or Provider, receiving services or benefits under this Agreement shall be deemed an incidental beneficiary. p. Incurring Financial Obligation. City will not incur any financial obligation on behalf of Provider without the prior written approval of Provider. q. No Arbitration. Notwithstanding anything to the contrary contained in this Agreement, the City and Provider hereby agree that no claim or dispute between the City and Provider arising out of or relating to this Agreement shall be decided by any arbitration proceeding including, without limitation, any proceeding under the Federal Arbitration Act (9 U.S.C. Sections 1-14), or any applicable State arbitration statute, including, but not limited to, the Texas General Arbitration Act, provided that in the event that the City is subjected to an arbitration proceeding notwithstanding this provision, Provider consents to be joined in the arbitration proceeding if Provider's presence is required or requested by the City of complete relief to be recorded in the arbitration proceeding. r. Authority. The officers executing this Agreement on behalf of the parties hereby represent that such officers have full authority to execute this Agreement and to bind the party he/she represents. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. JACINT EDICAL GROUP, P.A. lBy: n V Title: Date: aolt Purchased Services Agreement,Page 8 CITY OF B By: G SO . UMBACK Title: ' y Manager 4, 0 sPY,...TO.WN Date.Al/ 200 to LE I --'1F-Ca5Hr Clerk J!/.,.,,., APPROVED AS TO FORM: 4IACIO RAMIREZ, SR., Ci ttorney STATE OF TEXAS COUNTY OF HARRIS MANY C. 12-0-J56 Before me, 5Ilam—glw I me-Q. , the undersigned notary public, on this day personally appearedr5ita' <: uje,et I ,the C,ED of Jacinto Medical Group, P.A., a Texas professional' association, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed. SUBSCRIBED AND SWORN before me this ' day of December,, 20 . ao".Y,ti MARY C. ROUSE 34 Notary Public,State of Texas 44~ My Commission Expires A, January 02,2013 iiiiMiNifiammem C1444-12-- Notary ubli in and for the State of Texas Purchased Services Agreement, Page 9 EXHIBIT A SERVICES The City of Baytown (City) will reimburse the Provider for the salary and benefits, including medical malpractice insurance, of a licensed nurse practitioner/physician's assistant in the amount of ONE HUNDRED TWENTY THOUSAND AND NO/100 DOLLARS $120,000.00. which shall be paid quarterly in equal installments of THIRTY THOUSAND AND NO/100 DOLLARS ($30,000.00) provided the City has received the satisfactory statements and supporting information as provided in Section 1 of the Agreement. The Provider will: employ a nurse practitioner/physician's assistant, who shall: o be subject to employment guidelines specified by the Provider; o shall at all times be deemed an employee of the Provider, not the City; o perform services as authorized by this Agreement and in accordance with the applicable State licensure rules, regulations and laws; and o practice under the supervision of the Medical Director of the Provider; at all times under this Agreement provide within the City of Baytown a site of sufficient size for the nurse practitioner/physician's assistant to perform medical services to the Patients as required herein; maintain such site in good order and in compliance with all applicable codes and ordinances of the City of Baytown as well as all state and federal rules, regulations and laws; provide the following: o medical examinations; o minor medical treatment; o vaccine administration; o wellness consultations; o off-site City Health Wellness Events on days of service dedicated to City; o drug and alcohol specimen collection (only if a nurse practitioner/physician's assistant holds the appropriate certification); o prescriptions if the nurse practitioner/physician assistant in the clinic holds appropriate licensure; o examination room within the city limits of the City of Baytown, including an office area; o supplies; o reports and records; o support services for the nurse practitioner/physician's assistant for registering Patients, scheduling appointments for Patients, and reporting requirements of the City; and provide medical services specifically for Patients at the Providers location in Baytown three days a week — eight hours a day during those days and hours agreed to in writing by the City of Baytown's Director of Human Resources and Provider's Medical Director. The Services specifically exclude the following, which may be performed at the City's request at Provider's current fee schedule: Exhibit"A,"Page 1 workers' comp injury care - injuries are to be seen by the attending physician services will be billed to City of Baytown's Workers Compensation Carrier); Medical Review Officer services; drug and alcohol testing(can only collect specimen); routine visits for Patients who are utilizing the attending physician as their personal primary care physician (this service billed to patient's personal medical insurance and will be subject to co-pays/deductible in accordance with insurance agreement); physician fees associated with injury care; and any and all testing expenses such as: drug screens, pulmonary function tests, EKG's, stress tests, interpretations by the attending physician, medication/immunizations such as vaccines, attending physician consultations if required. Exhibit"A,"Page 2