AGREEMENT BETWEEN THE COUNTY OF SAN MATEO AND GAMBRO HEALTHCARE RENAL CARE, INC., A NEVADA CORPORATION
THIS AGREEMENT, entered into this _____ day of _____________ , 2005, by and between the COUNTY OF SAN MATEO, hereinafter called "County," and GAMBRO HEALTHCARE RENAL CARE, INC., A NEVADA CORPORATION, hereinafter called "Contractor";
W I T N E S S E T H:
WHEREAS, pursuant to Government Code, Section 31000, County may contract with independent contractors for the furnishing of such services to or for County or any Department thereof;
WHEREAS, it is necessary and desirable that Contractor be retained for the purpose of providing acute dialysis services for patients at San Mateo Medical Center (SMMC).
WHEREAS, SMMC is licensed to provide acute renal replacement services, and since it is a public entity, the County’s Board of Supervisors is authorized to enter into contracts with third-party vendors for the provision of such services to SMMC patients; and
WHEREAS, Contractor is experienced in providing acute renal replacement and other specified services to patients in hospitals and other licensed healthcare institutions and both County and Contractor desire Contractor to provide acute renal replacement and certain other services to the County for SMMC’s acute kidney failure patients (“Covered Services”).
NOW, THEREFORE, IT IS HEREBY AGREED BY THE PARTIES HERETO AS FOLLOWS:
1.		Exhibits and Attachments
The following exhibits and attachments are included hereto and incorporated by reference herein: Exhibit A—Services Exhibit B—Payments and rates Attachment H—HIPAA Business Associate requirements Attachment I—§ 504 Compliance
2.		Services to be performed by Contractor
In consideration of the payments set forth herein and in Exhibit “B,” Contractor shall perform services for County in accordance with the terms, conditions and specifications set forth herein and in Exhibit “A.”
3.		Payments
In consideration of the services provided by Contractor in accordance with all terms, conditions and specifications set forth herein and in Exhibit "A," County shall make payment to Contractor based on the rates and in the manner specified in Exhibit "B."
In no event shall the County’s total fiscal obligation under this Agreement exceed SIX HUNDRED TWENTY THOUSAND DOLLARS ($620,000).
4.		Term and Termination
Subject to compliance with all terms and conditions, the term of this Agreement shall be July 1, 2005 through June 30, 2007, with an option for a third year.
This Agreement may be terminated by Contractor, the Chief Executive Officer of San Mateo County or his/her designee at any time without a requirement of good cause upon thirty (30) days’ written notice to the other party.
This Agreement may be terminated by Contractor for County's Default (defined below in Exhibit B). If the County fails to cure within five (5) days after receipt of Contractor's written notice of County's Default, Contractor will immediately terminate the Agreement with no requirement of any further notification.
In the event of termination, all finished or unfinished documents, data, studies, maps, photographs, reports, and materials (hereafter referred to as materials) prepared by Contractor under this Agreement shall become the property of the County and shall be promptly delivered to the County. Upon termination, the Contractor may make and retain a copy of such materials. Contractor shall be entitled to receive payment for work/services provided prior to termination of the Agreement. Such payment shall be that portion of the full payment which is determined by comparing the work/services completed to the work/services required by the Agreement. Notwithstanding anything to the contrary herein contained, in the event performance by any party hereto of any term, covenant, condition or provision of this Agreement shall: [1] jeopardize the licensure of any party; [2] jeopardize any party’s participation in (a) Medicare, Medicaid, Blue Cross, or other governmental reimbursement or payment programs, or (b) any other state or nationally recognized accrediting organization; or [3] violate any statute, ordinance, or be otherwise deemed illegal or be deemed unethical, invalid or unenforceable by any recognized body, agency, or association in the medical fields, any party shall have the immediate right to initiate the renegotiation of the affected term(s) of this Agreement, upon notice to the other party, to remedy such condition. The parties shall thereafter use their best efforts to renegotiate in good faith to restructure this relationship so as to: [1] bring any
provision in compliance so as not to jeopardize any party’s licensure, participation in government programs or accrediting organizations; or [2] make the same lawful, valid enforceable or ethical, and to the extent possible, to maintain the economic benefits to any party as contemplated hereunder. Should the parties be unable to renegotiate the term(s) so affected so as not to jeopardize any party’s licensure, participation in government programs or accrediting organizations, or to bring it/them into compliance with the statute, rule, regulation, principle or interpretation that rendered it/them unlawful or unenforceable within ninety (90) days of the date on which notice of a desired renegotiation is given, then any party shall be entitled, after the expiration of said initial ninety (90) day period, to terminate this Agreement immediately.
5.		Availability of Funds
The County may terminate this Agreement or a portion of the services referenced in the Attachments and Exhibits based upon unavailability of Federal, State, or County funds, by providing written notice to Contractor as soon as is reasonably possible after the county learns of said unavailability of outside funding. County shall be responsible for making payment to Contractor for all services provided prior to termination of this Agreement.
6.		Relationship of Parties
Contractor agrees and understands that the work/services performed under this Agreement are performed as an independent Contractor and not as an employee of the County and that Contractor acquires none of the rights, privileges, powers, or advantages of County employees.
7.		Hold Harmless
Contractor shall indemnify and save harmless County, its officers, agents, employees, and servants from all claims, suits, or actions of every name, kind, and description, brought for, or on account of: (A) injuries to or death of any person, including Contractor, or (B) damage to any property of any kind whatsoever and to whomsoever belonging, (C) any sanctions, penalties, or claims of damages resulting from Contractor’s failure to comply with the requirements set forth in the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and all Federal regulations promulgated thereunder, as amended, or (D) any other loss or cost, including but not limited to that caused by the concurrent active or passive negligence of County, its officers, agents, employees, or servants, resulting from the performance of any work required of Contractor or payments made pursuant to this Agreement, provided that this shall not apply to injuries or damage for which County has been found in a court of competent jurisdiction to be liable by reason of its own negligence or willful misconduct. The duty of Contractor to indemnify and save harmless as set forth herein, shall include the duty to defend as set forth in Section 2778 of the California Civil Code.
County shall indemnify and save harmless Contractor, its officers, agents, employees, and servants from all claims, suits, or actions of every name, kind, and description, brought for, or on account of: (A) injuries to or death of any person, including Contractor, or (B) damage to any property of any kind whatsoever and to whomsoever belonging, (C) any sanctions, penalties, or claims of damages resulting from County’s failure to comply with the requirements set forth in the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and all Federal regulations promulgated thereunder, as amended, or (D) any other loss or cost, including but not limited to that caused by the concurrent active or passive negligence of Contractor, its officers, agents, employees, or servants, resulting from payments made pursuant to this Agreement, provided that this shall not apply to injuries or damage for which
Contractor has been found in a court of competent jurisdiction to be liable by reason of its own negligence or willful misconduct. The duty of County to indemnify and save harmless as set forth herein, shall include the duty to defend as set forth in Section 2778 of the California Civil Code.
In the event of concurrent negligence of Contractor, its officers, and/or employees, and County, its officers, and/or employees, then liability for any and all claims for injuries or damages to persons and/or property which arise out of terms and conditions of this Agreement shall be apportioned under the California theory of comparative negligence as established presently, or as may be hereafter modified.
8.		Assignability and Subcontracting
Contractor shall not assign this Agreement or any portion thereof to a third party or subcontract with a third party to provide services required by contractor under this Agreement without the prior written consent of County. Any such assignment or subcontract without the County’s prior written consent shall give County the right to automatically and immediately terminate this Agreement. Notwithstanding the above, Contractor may assign any of its rights or obligations hereunder to any of Contractor’s successors, subsidiaries, or affiliates without the County’s consent.
9.		Insurance
The Contractor shall not commence work or be required to commence work under this Agreement unless and until all insurance required under this paragraph has been obtained and such insurance has been approved by Risk Management, and Contractor shall use diligence to obtain such issuance and to obtain such approval. The Contractor shall furnish the Department/Division with certificates of insurance evidencing the required coverage, and there shall be a specific or blanket contractual liability endorsement extending the Contractor's coverage to include the contractual
liability assumed by the Contractor pursuant to this Agreement. These certificates shall specify or be endorsed to provide that thirty (30) days' notice must be given, in writing, to the Department/Division of any pending change in the limits of liability or of any cancellation or material modification of the policy.
(1)			Worker's Compensation and Employer's Liability Insurance The Contractor shall have in effect during the entire life of this Agreement Workers' Compensation and Employer's Liability Insurance providing full statutory coverage. In signing this Agreement, the Contractor certifies, as required by Section 1861 of the California Labor Code, that it is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for Worker's Compensation or to undertake self-insurance in accordance with the provisions of the Code, and will comply with such provisions before commencing the performance of the work of this Agreement.
(2)			Liability Insurance The Contractor shall take out and maintain during the life of this Agreement such Bodily Injury Liability and Property Damage Liability Insurance as shall protect him/her while performing work covered by this Agreement from claims for damages for bodily injury, including accidental death, as well as any and all claims for property damage which may arise from contractors operations under this Agreement, whether such operations be by himself/herself or by any sub-contractor or by anyone directly or indirectly employed by either of them. Such insurance shall be combined single limit bodily injury and property damage for each occurrence and shall be not less than the amount specified below.
			Such insurance shall include:
			(a)			Comprehensive General Liability . . . . . . . . . . . . . . .		$3,000,000
			(b)			Motor Vehicle Liability Insurance . . . . . . . . . . . . . . .		$1,000,000
			(c)			Professional Liability . . . . . . . . . . . . . . . . . . . . . . . . .		$3,000,000
With regard to coverage for (a) and (c) above, County and its officers, agents, employees and servants shall be named as additional insured on any such policies of insurance, which shall also contain a provision that with respect to claims for which the County is indemnified by Contractor, hereunder, the insurance afforded thereby to the County, its officers, agents, employees and servants shall be primary insurance to the full limits of liability of the policy, and that if the County or its officers and employees have other insurance against the loss covered by such a policy, such other insurance shall be excess insurance only. Contractor is expressly permitted to satisfy any insurance requirements outlined in this Section 9 through any combination of self-insurance or commercially obtained insurance policies.
In the event of the breach of any provision of this section, or in the event any notice is received which indicates any required insurance coverage will be diminished or canceled, the County of San Mateo at its option, after written notice to Contractor, may, notwithstanding any other provision of this Agreement to the contrary, immediately declare a material breach of this Agreement and suspend all further work pursuant to this Agreement.
10.		Compliance with laws; payment of Permits/Licenses
All services to be performed by Contractor pursuant to this Agreement shall be performed in accordance with all applicable Federal, State, County, and municipal laws, ordinances and regulations, including, but not limited to, the Health Insurance Portability and Accountability Act of 1996 (HIPAA), and the Federal Regulations promulgated thereunder, as amended, and will comply with the Business Associate requirements set forth in Attachment “H,” and the Americans with Disabilities Act of 1990, as amended, and Section 504 of the Rehabilitation Act of 1973, as amended and attached hereto and incorporated by reference herein as Attachment “I,” which prohibits discrimination on the basis of handicap in programs and activities receiving any Federal or County financial assistance. Such services shall also be performed in accordance with all applicable ordinances and regulations, including, but not limited to, appropriate licensure, certification regulations, provisions pertaining to confidentiality of records, and applicable quality assurance regulations. In the event of a conflict between the terms of this Agreement and State, Federal, County, or municipal law or
regulations, the requirements of the applicable law will take precedence over the requirements set forth in this Agreement. Contractor will timely and accurately complete, sign, and submit all necessary documentation of compliance.
11.	Non-Discrimination
A.	Section 504 applies only to Contractors who are providing services to members of the public. Contractor shall comply with § 504 of the Rehabilitation Act of 1973, which provides that no otherwise qualified handicapped individual shall, solely by reason of a disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination in the performance of this Agreement.
B.	General non-discrimination. No person shall, on the grounds of race, color, religion, ancestry, gender, age (over 40), national origin, medical condition (cancer), physical or mental disability, sexual orientation, pregnancy, childbirth or related medical condition, marital status, or political affiliation be denied any benefits or subject to discrimination under this Agreement.
C.	Equal employment opportunity. Contractor shall ensure equal employment opportunity based on objective standards of recruitment, classification, selection, promotion, compensation, performance evaluation, and management relations for all employees under this Agreement. Contractor’s equal employment policies shall be made available to County of San Mateo upon request.
D.	Violation of Non-discrimination provisions. Violation of the non-discrimination provisions of this Agreement shall be considered a breach of this Agreement and subject the Contractor to penalties, to be determined by the County Manager, including but not limited to
				i)			termination of this Agreement;
				ii)			disqualification of the Contractor from bidding on or being awarded a County contract for a period of up to 3 years;
				iii)			liquidated damages of $2,500 per violation;
				iv)			imposition of other appropriate contractual and civil remedies and sanctions, as determined by the County Manager.
To effectuate the provisions of this section, the County Manager shall have the authority to examine Contractor’s employment records with respect to compliance with this paragraph and/or to set off all or any portion of the amount described in this paragraph against amounts due to Contractor under the Contract or any other Contract between Contractor and County.
Contractor shall report to the County Manager the filing by any person in any court of any complaint of discrimination or the filing by any person of any and all charges with the Equal Employment Opportunity Commission, the Fair Employment and Housing Commission or any other entity charged with the investigation of allegations within 30 days of such filing, provided that within such 30 days such entity has not notified Contractor that such charges are dismissed or otherwise unfounded. Such notification shall include the name of the complainant, a copy of such complaint, and a description
of the circumstance. Contractor shall provide County with a copy of their response to the Complaint when filed.
E.	Compliance with Equal Benefits Ordinance. With respect to the provision of employee benefits, Contractor shall comply with the County Ordinance which prohibits contractors from discriminating in the provision of employee benefits between an employee with a domestic partner and an employee with a spouse.
F. E.	Where applicable, the Contractor shall comply fully with the non-discrimination requirements required by 41 CFR 60-741.5(a), which is incorporated herein as if fully set forth.
12.		Retention of Records, Right to Monitor and Audit
(a) Contractor shall maintain all required records for at least three (3) years after the County makes final payment and all other pending matters are closed, and shall be subject to the examination and/or audit of the County, a Federal grantor agency, and the State of California. (b) Reporting and Record Keeping: Contractor shall comply with all program and fiscal reporting requirements set forth by appropriate Federal, State and local agencies, and as required by the County.
(c) Contractor agrees to provide to County, to any Federal or State department having monitoring or review authority, to County's authorized representatives, and/or their appropriate audit agencies upon reasonable notice, access to and the right to examine all records and documents necessary to determine compliance with relevant Federal, State, and local statutes, rules and regulations, and this Agreement, and to evaluate the quality, appropriateness and timeliness of services performed.
13.		Merger Clause
This Agreement, including the Exhibits attached hereto and incorporated herein by reference, constitutes the sole Agreement of the parties hereto and correctly states the rights, duties, and obligations of each party as of this document's date. Any prior agreement, promises, negotiations, or representations between the parties not expressly stated in this document are not binding. All subsequent modifications shall be in writing and signed by the parties.
14.		Controlling Law
The validity of this Agreement and of its terms or provisions, as well as the rights and duties of the parties hereunder, the interpretation, and performance of this Agreement shall be governed by the laws of the State of California.
15.		Notices
		Any notice, request, demand, or other communication required or permitted hereunder shall be deemed to be properly given when deposited in the United State mail, postage prepaid, or when deposited with a public telegraph company for transmittal, charges prepaid, addressed to:
In the case of County, to: San Mateo Medical Center 225 W. 39th Avenue San Mateo, CA 94403 In the case of Contractor, to: GAMBRO Healthcare Renal Care, Inc. 15253 Bake Parkway Irvine, CA 92618 Attn: West Division Counsel