AGREEMENT
This Agreement is made and entered into as of this 21st day of January,
1996, by and between XXXXX XXXX MEDICAL CENTER, a not-for-profit corporation
organized under the laws of the State of Oregon, (hereinafter "MWMC"), and
Medford Clinic, P.C., an Oregon professional corporation located at 000 Xxxxx
Xxx Xxxxx, Xxxxxxx, Xxxxxx (hereinafter "Clinic").
RECITALS
1. Whereas MWMC is tax exempt under the federal tax laws of the United
States of America and operates an acute-care, general hospital located at
0000 Xxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx; and,
2. Whereas Clinic is a successful highly regarded medical clinic having a
dialysis program of its own; and,
3. Whereas MWMC has a commitment to provide local in-center outpatient
hemodialysis services to end-stage renal disease (ESRD) patients residing
within its service area; and,
4. Whereas Clinic through its physicians, management team, and staff,
possesses the experience and expertise to manage with quality and efficiency
the daily operations of such an outpatient hemodialysis facility/program; and,
5. Whereas MWMC has committed itself, as a method of fulfilling its
charitable purposes, establishing and promoting the existence of an in-center
outpatient hemodialysis center for the treatment of ESRD patients to ensure
that such hemodialytic care is available to the community; and,
6. Whereas an exclusive Agreement between MWMC and Clinic will benefit MWMC
and the community served by MWMC; and
7. Whereas MWMC is prepared to enter into an exclusive management Agreement
with Clinic and Clinic is agreeable to such management Agreement;
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
promises and covenants hereinafter contained, the parties agree as follows:
RESPONSIBILITIES OF CLINIC
8. BASIC AGREEMENT BY CLINIC:
8.1 Clinic agrees to provide management and dialysis services to
ESRD patients in the Klamath Falls service area.
8.1.1 Clinic shall be responsible for providing all outpatient,
home based dialysis services, which includes home training, peritoneal
dialysis, and home hemodialysis until December 31, 1996; all new patients
admitted for service on or before December 31, 1996 shall remain patients of
Clinic, unless the patient requests otherwise.
8.1.1.1 Clinic shall pay the sum of $75.00 per half day for
use of MWMC facilities to provide services to Clinic's home-based dialysis
patients as referenced in Section 8.1.1 above.
8.1.2 After December 31, 1996, all new home-based dialysis patients
shall be considered patients of MWMC.
8.1.2.1 MWMC agrees to negotiate with Clinic to contract for
the provision of home dialysis services, including patient training and
on-going support for this group of patients.
8.2 Clinic shall provide an appropriate level of staffing based on
patient need at MWMC's West Dialysis Center (hereinafter "WDC") and agrees to
decrease staffing based on decreased patient load, to the extent that patient
care and safety are not compromised or adversely affected.
8.3 Clinic agrees that MWMC's payment for staffing services rendered
under the terms of this Agreement shall be based on the actual hours worked
at MWMC.
8.4 Clinic agrees that until a nephrologist resides in the Klamath Falls
area, or at such future time as by mutual Agreement of the parties, all ESRD
patients with ESRD related conditions who require in-patient
treatment/hospitalization directly related to ESRD or other related ESRD
conditions in the MWMC Service area will receive their care, including
in-patient hospitalization acute dialysis services in Medford, Oregon.
8.5 Clinic shall employ physicians who are licensed to practice medicine
in the State of Oregon, and who specialize in the practice of nephrology.
8.6 Clinic shall provide physician services to MWMC patients, and shall
be available on site according to pre-approved schedule mutually satisfactory
to both parties.
8.6.1 A Clinic physician shall be on site at the WDC facility a
minimum of one (1) day per month.
8.6.2 A Clinic physician shall be available for consultation via
telephone/facsimile 24 hours per day at all times a Clinic physician is not
on site at the WDC facility.
AGREEMENT - 2
8.6.3 Clinic shall recruit a Nephrologist who will reside in the
Klamath Falls community at the time that the ESRD patient load at WDC reaches
45 patients (combined total of home-based and in-center dialysis patients).
8.6.4 MWMC agrees that, during the initial term or any subsequent
renewal term of this Agreement, it will neither recruit a nephrologist or
other qualified physician of its own to Klamath Falls to competitively care
for the dialysis needs of the end-stage renal disease patients, nor will it
retain any physician other than a Clinic nephrologist to fill the position of
Medical Director of its dialysis program.
8.7 Clinic shall provide the services of a physician director (Medical
Director) to MWMC.
8.7.1 The Medical Director shall provide medical supervision of all
services provided by Clinic under the terms and conditions of this Agreement.
8.7.2 The Medical Director shall fulfill the responsibilities
delineated in Section 405.2161 of Subpart U, Conditions for Coverage of
Suppliers of End-Stage Renal Disease (ESRD) Services, 42 CFR Chapter IV
(12/1/94). (See attached Exhibit A).
8.8 The Medical Director and all physicians performing services on
behalf of Clinic under the terms of this Agreement shall maintain on an
unrestricted basis the following:
8.8.1 Unlimited licensure as a physician in the State of Oregon;
8.8.2 Federal DEA number;
8.8.3 Medical Staff membership (Courtesy status) and appropriate
clinical privileges at Xxxxx Xxxx Medical Center;
8.8.4 Medical Staff membership in good standing at another Oregon
licensed in-patient facility; and
8.8.5 Board eligibility or certification by the American Board of
Nephrology.
8.9 Clinic shall provide non-physician patient care and clinical support
staff who are properly trained and present in adequate numbers to meet the
needs of the patients, including those arising from medical emergencies.
8.9.1 All individuals provided under this paragraph shall be
employees of Clinic.
AGREEMENT - 3
8.10 Personnel which Clinic agrees to provide include the following:
8.10.1 Registered nurse(s), including an on-site manager;
8.10.2 Patient care technician(s);
8.10.3 Machine/maintenance technician(s); and,
8.10.4 Reuse technician(s).
8.11 Clinic agrees in addition to the medical, clinical and technical
services provided by patient care/clinical support staff as referenced above
to provide the following consultative services including but not limited to:
8.11.1 Program administration;
8.11.2 Product and equipment evaluation and standardization; and,
8.11.3 Quality assurance/improvement activities to meet MWMC/JCAHO
standards.
8.12 Clinic shall provide an adequate and appropriate level of
orientation, and continuing education for Clinic personnel who provide
services at MWMC subject to MWMC review and in accordance with established
MWMC protocols and criteria for the provision of quality service.
8.13 Individuals other than physicians who provide services on behalf of
the Clinic under the terms of this Agreement shall be appropriately trained,
licensed, and/or certified to perform the duties assigned to them.
8.13.1 The training, licensure and/or certification of such
individuals shall be based upon a mutual Agreement with MWMC and shall meet
all local, state and federal statutory or rule requirements.
8.13.1.1 Clinic shall act promptly to correct any
personnel problems identified by MWMC Liaison or Clinic site manager whether
the issue identified is related to staff clinical competence, employee
performance or overall performance.
8.13.1.2 MWMC Liaison agrees to confer with Clinic's
Clinical Services Director regarding Clinic employees. MWMC Liaison shall,
after said consultation, retain the right, for good cause shown, to refuse to
allow any Clinic employee to perform services under the terms of this
agreement at the WDC facility.
AGREEMENT - 4
8.13.2 Clinic shall provide MWMC upon request evidence of any
individual's training, licensure, and/or certification.
8.13.3 Clinic shall be responsible for reporting to MWMC the
outcome of any disciplinary or corrective action taken with any Clinic
personnel provided under the terms of this Agreement within five (5) working
days of the action.
8.13.4 Clinic shall accept for training as soon as appropriate and
feasible any individual, identified by either party needing training, and for
whom the parties mutually agree training is appropriate.
8.14 Clinic shall provide WDC specific, written policies and procedures
pertaining to patient care as described in Section 405.2136 (f) of Subpart U,
Conditions for Coverage of Suppliers of End-Stage Renal Disease (ESRD)
Services, 42 CFR Chapter IV (12/1/94). (See Exhibit B as attached).
8.14.1 All policies provided by Clinic shall be WDC specific and
all such written policies and procedures shall be in Agreement with MWMC's
standard policies, procedures and personnel practices.
8.14.2 Such policies shall be in accordance with the criteria
described in Section 405.2136 (d) of Subpart U, Conditions for Coverage of
Suppliers of End-Stage Renal Disease (ESRD) Services, 42 CFR Chapter IV
(12/1/94). (See Exhibit C as attached).
8.15 Clinic shall oversee the implementation of a quality
assurance/quality improvement program that is consistent with established
MWMC programs and shall participate in MWMC's quality assurance and
utilization review programs as deemed appropriate and necessary by MWMC.
8.16 Clinic shall perform duties related to the delivery of outpatient,
in-center hemodialysis services and other dialysis-related services, as
mutually agreed upon by MWMC and Clinic.
8.17 Clinic is responsible for the timely maintenance and repair of all
dialysis machines and related equipment.
8.17.1 Clinic machine/maintenance and reuse technician(s) shall
promptly notify MWMC liaison of all repair parts and materials needed to
comply with the terms of this Agreement.
8.18 Clinic shall maintain profession liability insurance covering
physicians, nursing personnel, and technicians as
AGREEMENT - 5
provided for in the current MWMC Medical Staff By-Laws, rules and regulations.
8.18.1 Clinic shall furnish MWMC with a current certificate of
Professional Liability Insurance for all physicians/licensed professionals for
malpractice prior to commencing practice at MWMC.
8.18.2 Clinic shall ensure that each physician/licensed
professional provided under the terms of this Agreement has tail insurance
coverage for all professional services performed under the terms of this
Agreement.
8.18.2.1 A copy of the certificate of tail insurance shall be
provided to MWMC at the termination of this Agreement, any renewal period, or at
the time the physician/licensed professional provided by the Clinic under the
terms of this Agreement terminates their employment with Clinic.
8.18.2.2 In the event a physician/licensed professional,
provided by Clinic, under the terms of this Agreement, fails to obtain the
required tail insurance, Clinic agrees to indemnify MWMC for any and all damages
which are assessed against MWMC arising out of activities which would have been
covered by such tail insurance.
8.19 The Clinic shall include in all contracts with the physicians and
other licensed professional personnel who will be provided by the Clinic under
the terms of this Agreement a clause for indemnification of MWMC such as
follows:
- Clinic agrees to indemnify and hold harmless MWMC from and against any
and all liability for claims of whatever kind or character arising out of:
-- Clinic provided Physician/Licensed Professional Personnel's failure
to comply with any statutes, regulations, ordinances, or licensing
requirements for the provision of hemodialysis services; and
-- Negligence or any other tortious conduct of any Clinic provided
Physician/Licensed Professional Personnel relating to the provision of
hemodialysis services or other medical care services under the terms
of this Agreement; and
-- Disputes arising out of any contractual commitments between the
Clinic and Physician/Licensed Professional Personnel provided by the
Clinic under the terms of the Clinic's Agreement with MWMC; and,
-- Clinic provided Physician/Licensed Professional
AGREEMENT - 6
Personnel's failure to obtain consent pursuant to Oregon law for such
treatments as provided.
-- Clinic provided Physician/Licensed Professional Personnel's failure
to comply with applicable state and federal income tax laws.
8.20 Clinic shall not xxxx or collect directly for any professional or
technical fees from any patient or third-party payor for dialysis or dialysis
related services provided to MWMC patients.
RESPONSIBILITY OF MWMC
9. BASIC AGREEMENT OF MWMC:
9.1 MWMC shall be responsible for providing the WDC facility for the
provision of outpatient, in-center hemodialysis services.
9.2 MWMC shall provide non-clinical support personnel.
9.2.1 These individuals shall be responsible for patient
reception, clerical functions, purchasing and delivering, and business office
functions, including but not limited to billing and collections.
9.3 MWMC shall provide clinical support in the service areas of social
work and dietary services.
9.4 MWMC agrees to make available to Clinic at the MWMC premises all
medical supplies, equipment, furnishings and facilities reasonably necessary for
the provision of quality, efficient care of MWMC patients.
9.5 MWMC agrees to make available all office supplies, equipment, and
furnishings reasonably necessary for staff and physicians to conduct the
business of a dialysis program on site at the MWMC facility.
9.6 MWMC shall maintain on an uninterrupted basis the following services:
9.6.1 Housekeeping/janitorial services;
9.6.2 Laundry/linen services;
9.6.3 Communication services, including
telephone/fax/data lines;
9.6.4 All building and landscaping maintenance;
9.6.5 Garbage/hazardous waste disposal; and,
9.6.6 All utilities.
9.7 MWMC shall keep and maintain the building/premises, the
AGREEMENT - 7
equipment which is non-dialysis related, and furnishings in good working order
and repair.
9.7.1 MWMC shall be responsible for providing on a timely basis
all necessary parts and materials related to the dialysis machines and related
equipment upon timely notification and request from Clinic's machine/maintenance
and reuse technician(s).
9.7.1.1 MWMC's timely response for the provision of
necessary parts and materials will be as expected and required only when
notification by Clinic personnel has been given on a timely basis.
9.8 MWMC shall be responsible only for procurement of the parts for
equipment repair as it relates to the dialysis machinery and all medically
related equipment, and not for the repair itself.
9.9 MWMC shall compensate Clinic for its services as follows:
9.9.1 MWMC shall compensate Clinic for management services and
ongoing consultative availability for clinical, technical, regulatory, and
managerial matters that are dialysis related in the amount of $950.00 per month
for each of the first twelve (12) months of this Agreement, or $11,400.00 per
annum for the first year of this Agreement.
9.9.1.1 A formula with supporting criteria for adjusting
the management fee after the first twelve (12) months of this Agreement shall
be developed and mutually agreed upon by the parties no later than September
30, 1996.
9.9.2 MWMC shall compensate clinic for physician/medical director
services in the amount of $2,000.00 per month for each of the first twelve
(12) months of the Agreement, or $24,000.00 per annum for the first year of
this Agreement.
9.9.2.1 A formula with supporting criteria for adjusting
the medical director fee after the first twelve (12) months of this Agreement
shall be developed and mutually agreed upon by the parties no later than
September 30, 1996.
9.9.2.2 MWMC shall compensate Clinic for all non-physician
patient care and clinical support services provided by Clinic staff to MWMC.
Compensation shall be made on the basis of actual hours worked by Clinic
staff.
9.9.2.3 MWMC shall be responsible for paying only for the
actual number of hours staff work on location at the WDC facility.
AGREEMENT - 8
9.9.2.4 The parties agree that only upon mutual consent
will the operating days of the WDC facility be increased beyond the start-up
schedule of Monday, Wednesday and Friday.
9.9.2.5 Clinic shall be responsible for submitting to MWMC
all billing statements in a format acceptable to MWMC.
9.9.2.5.1 Clinic shall be responsible to submit
all billing statements to MWMC each month no later than fifteen (15) days
after the end of the preceding month in order for the Clinic to receive
payment from MWMC on a timely basis as defined in Section 9.11 below.
9.9.2.5.2 The parties shall be responsible to
notify one another within a reasonable time prior to any anticipated need to
increase or decrease staffing levels and to provide the party so notified
with a rationale to justify said requested increase/decrease in staffing.
9.9.2.5.3 All billing statements shall identify,
by name, each staff member and the number of hours actually worked at WDC.
9.10 MWMC shall compensate Clinic for the start-up expenses incurred to
train the facility's new staff, dating from the first day of training until the
day the MWMC facility becomes operational only upon Clinic's submission of an
appropriate billing statement submitted in accordance with Section 8.21 and its
subsections above.
9.11 MWMC shall compensate Clinic within thirty (30) days from receipt of
Clinic's monthly billing statement.
9.11.1 MWMC liaison shall have five (5) days upon receipt of
Clinic's monthly billing statements to dispute any charges in writing to
Clinic's Clinical Services Manager in Medford, Oregon.
9.11.2 All disputed charges will be resolved by mutual agreements
of Clinic's Clinical Services Manager and MWMC's liaison.
GENERAL PROVISIONS
10. TERM OF THIS AGREEMENT:
10.1 This Agreement is to take effect on January 22, 1996, and is to
continue in force until midnight, January 21, 2001.
10.2 This Agreement may be renewed for one (1) successive three-year term,
upon mutual agreement of the parties.
AGREEMENT - 9
10.2.1 Clinic shall give notice to MWMC one hundred and twenty
(120) days prior to the end of the first term, or any successive term, of
this Agreement of the desire to negotiate an additional term.
10.2.2 All terms and conditions of the original Agreement as
commencing on January 22, 1996 shall be in full force and effect in any
renewal agreement unless specifically altered in a written addendum signed by
both parties, attached and incorporated into the original agreement.
11. TERMINATION OF AGREEMENT:
11.1 The obligations of the parties to this Agreement shall terminate
upon the occurrence of any of the following:
11.1.1 Failure of Clinic or any of the physicians/licensed
professional personnel provided under the terms of this agreement to qualify
or obtain licensure in Oregon, appointment to the MWMC Medical Staff, (which
shall not be unreasonably withheld) medical malpractice insurance coverage or
to satisfy any other contingency contained within this document.
11.1.2 Material breach by MWMC at the option of Clinic unless the
breach is curable and is cured within thirty (30) consecutive calendar days
following notice pursuant to Section 32 below.
11.1.3 Material breach of contract by Clinic at the option of MWMC
unless the breach is curable and is cured within thirty (30) consecutive
calendar days following notice pursuant to Section 32 below.
11.1.4 This Agreement may be terminated by MWMC IMMEDIATELY
WITHOUT NOTICE in the event MWMC in good faith determines that Clinic or any
of its physicians, licensed professional staff or agents is conducting
themselves in an unprofessional, unethical, or fraudulent manner, which MWMC
believes discredits or is detrimental to its reputation, character, and
standing within the community.
11.1.5 This Agreement may be terminated by MWMC IMMEDIATELY
WITHOUT NOTICE in the event MWMC, in good faith, determines that Clinic or
any of its physicians, licensed professional personnel or agents are not
providing adequate patient care, or that the safety of patients is
jeopardized by Clinic's continued provision of services under the terms of
this Agreement.
11.1.6 This Agreement may be terminated by
AGREEMENT - 10
Clinic immediately without notice in the event Clinic in good faith
determines that MWMC or any of its licensed professional staff or agent is
conducting themselves in an unprofessional, unethical, or fraudulent manner,
which Clinic believes discredits or is detrimental to its reputation,
character, and standing within the community.
11.1.7 This Agreement may be terminated by Clinic immediately
without notice in the event Clinic, in good faith, determines that MWMC or
any of its licensed professional personnel or agents are not providing
adequate care, or that the safety of patients is jeopardized by MWMC's
continued provision of services under the terms of the Agreement.
12. EFFECT OF TERMINATION:
12.1 Upon termination of this Agreement, for any reason, neither party
shall have any further obligation hereunder except:
12.1.1 Obligations accruing prior to the date of termination;
12.1.2 Obligations, promises, or covenants contained herein which
are expressly made to extend beyond the term of this agreement (e.g. tail
coverage, etc.);
12.1.3 Clinic agrees that all physicians/licensed professionals
provided under the terms of this Agreement shall resign from membership on
the medical staff and relinquish all clinical privileges and forego any
redress allowed in the medical staff bylaws (i.e. Hearing and Appeals).
13. FINAL ACCOUNTING:
13.1 Within ninety (90) days after the term of this Agreement, or any
renewal period, Clinic shall submit a final billing statement for all
outstanding amounts owed under the terms of this Agreement.
14. ACCESS TO FINANCIAL RECORDS:
During the term of this Agreement or any renewal of this Agreement,
Clinic agrees to keep and maintain accounting records reflecting all fees
billed for professional services and collections received from all sources of
income in connection with Clinic's performance under the terms of this
Agreement. Clinic further agrees to bring in a designated officer or employee
of MWMC to inspect such records at the end of each month or at other
convenient times during the term of this Agreement so long as guarantee
advance payments are being made, if reasonably requested by MWMC.
AGREEMENT - 11
15. RECORDS:
15.1 For the purpose of implementing Section 1861(v)(l)(I) of the
Social Security Act, as amended, and any written regulations thereto, Clinic
agrees to comply with the following statutory requirements governing the
maintenance of documentation to verify the cost of services rendered under
this Agreement.
15.1.1 Until the expiration of four (4) years after the furnishing
of such services pursuant to such contract, Clinic shall make available, upon
written request to the Secretary of HHS, or upon request of the Comptroller
General of the U.S., or any of their duly authorized representatives, the
contract, and books, documents, and records of Clinic that are necessary to
certify the nature and extent of such costs; and,
15.1.2 If Clinic carries out any of the duties of the contract
through a subcontract with a value or cost of TEN THOUSAND AND NO/100 DOLLARS
($10,000.00) or more over a 12-month period, with a related organization,
such subcontract shall contain a clause to the effect that until the
expiration of four (4) years after the furnishing of such services pursuant
to such subcontract, the related organization shall make available, upon
written request to the Secretary, or upon request to the Comptroller General,
or any of their duly authorized representatives, the subcontract, and books,
documents, and records of such organization that are necessary to verify the
nature and extent of such costs.
15.1.3 If Clinic is requested to disclose any books, documents, or
records relevant to this Agreement for the purpose of an audit or
investigation, Clinic shall notify MWMC of the nature and scope of such
request and shall make available, upon written request of MWMC, all such
books, documents, or records.
15.1.4 In the event of any breach of this paragraph by Clinic or
any of his subcontractors, MWMC shall have the right to terminate this
Agreement after ten (10) days' notice.
15.1.5 Clinic shall indemnify and hold harmless MWMC in the event
that any amount of reimbursement is denied or disallowed by the reimbursement
programs because of the failure of Clinic or any of its related
subcontractors to comply with the obligations stated in Paragraphs 15.1.1 and
15.1.2 of this section. Such indemnity shall include, but not be limited to,
the amount of reimbursement denied or disallowed, plus any interest,
penalties, and legal costs.
15.1.6 This section is effective as of the effective date of this
agreement, and pertains to all records that have or should have been
maintained on or after that date.
AGREEMENT - 12
15.1.7 This section pertains solely to the maintenance and
disclosure of specified records and shall have no effect upon the right of
the parties to this Agreement to make assignments or delegations.
16. INDEPENDENT CONTRACTOR:
In the performance of the work, duties, and obligations devolving upon
Clinic, any of its subcontractors, employees, or agents, under this
Agreement, it is mutually understood and agreed that Clinic, its
subcontractors, employees, or agents, is at all times acting and performing
as an independent contractors in providing any and all services under the
terms of this Agreement. MWMC shall neither have nor exercise any control or
direction over the methods by which Clinic, its subcontractors, employees, or
agents, shall perform their work. The sole interest and responsibility of
MWMC is to ensure that the services offered by the WDC facility shall be
performed and rendered in a competent, efficient, and satisfactory manner.
All applicable provisions of law and other rules and regulations of any and
all governmental authorities relating to licensure and regulation of
physicians, licensed professionals, and hospitals, as well as the
recommendations of the Joint Commission on Accreditation of Health Care
Organizations, shall be fully complied with by all parties hereto. None of
the provisions of this Agreement shall be interpreted to conflict with the
intent of the parties that the legal status of Clinic shall at all times be
that of an independent contractor.
17. INSURANCE, SALARIES WORKERS' COMPENSATION, TAXES, PENSIONS, ETC.:
Neither Clinic nor its employees shall be deemed employees of MWMC for
any purpose whatsoever, and neither shall be eligible to participate in any
benefit program provided by MWMC for its employees. Clinic shall be
exclusively responsible for the payment of all wages/salaries, taxes,
withholding payments, fees and professional liability insurance premiums; and
these items will be considered reasonable practice expenses. Contributions to
insurance, pension or other deferred compensation plans including, but not
limited to, Workers' Compensation and Social Security obligations and
penalties are not considered reasonable practice expenses for purposes of
this Agreement. Clinic shall be responsible for the filing of all necessary
documents, forms, and returns pertinent to all of the foregoing. Clinic shall
not bring and shall hold harmless and provide MWMC with a defense against any
and all claims that MWMC is responsible for the payment or filing of any of
the foregoing payments, withholdings, contributions, taxes, and documents and
returns, including but not limited to Social Security taxes and employer
income tax withholding obligations.
AGREEMENT - 13
18. LIMITATIONS OF RESPONSIBILITY:
18.1 Clinic agrees to indemnify and hold harmless MWMC from and against
any and all liability for claims of whatever kind or character arising out of:
18.1.1 Clinic's failure to comply with any statutes, regulations,
ordinances or licensing requirements for the provision of services under the
terms of this Agreement.
18.1.2 Negligence or any other tortious conduct of Clinic and/or
Clinic's personnel or agents relating to the provision of services under the
terms of this Agreement.
18.1.3 Disputes arising out of any contractual commitments
between Clinic and third parties;
18.1.4 Clinic's failure to request from MWMC sufficient equipment
and personnel to provide the services Clinic is obligated to provide under
the terms of this Agreement.
18.1.5 Clinic's failure to obtain informed consent pursuant to
Oregon Law for such treatments as provided.
18.2 Clinic agrees to defend any claims of negligence against the MWMC
based upon allegations of malpractice against the Clinic.
18.3 MWMC agrees to indemnify and hold harmless Clinic from and against
any and all liability for claims of whatever kind of character arising out of:
18.3.1 MWMC's failure to comply with any statutes, regulations,
ordinances or licensing requirements;
18.3.2 Negligence or any other tortious conduct of MWMC's
personnel or agents;
18.3.3 Disputes arising out of any contractual commitments
between MWMC and third parties;
18.4 MWMC agrees to defend any claims of negligence against the Clinic
based upon allegations of malpractice against MWMC, its subcontractors,
employees or agents.
19. SUPERVENING LAW:
The parties recognize that this Agreement at all times is to be subject
to applicable state, local and federal law, including, but not limited to,
The National Health Planning and Resources Development Act of 1974, The
Social Security Act, and the rules, regulations and policy of The Department
of Health and
AGREEMENT - 14
Human Services, all public health and safety provisions of state law and
regulation, and the rules and regulations of the Health Systems Agency and
the State Certificate of Need Agency. The parties further recognize that the
Agreement shall be subject to amendments in such laws and regulations and to
new regulations such as a new federal or state economic stabilization
program or health insurance program. Any provisions of law that invalidate,
or otherwise are inconsistent with, the terms of this Agreement, or that
would cause one or both parties to be in violation of law, shall be deemed
to have superseded the terms of this Agreement, provided, however, that the
parties shall exercise their best efforts to accommodate the terms and intent
of this Agreement to the greatest extent possible, consistent with the
requirements of law.
20. COOPERATION:
20.1 Both parties agree to the appointment of a specific liaison
personnel who will meet on a quarterly basis, or more frequently as required
to discuss the implementation of the terms of this Agreement.
20.2 For the first term of this Agreement, the Clinic's Liaison person
shall be the Associate Administrator, Medford Clinic, or his designee, the
Clinical Services Manager of the dialysis program at the Medford Clinic.
20.3 The MWMC administrative liaison person shall have the authority to
bring all issues of concern regarding the operation of the dialysis center to
the attention of the Clinic manager and Clinic's Clinical Services Manager in
Medford, Oregon.
20.4 The parties further agree that on a quarterly basis
representatives of the parties shall formally meet to review implementation
of the terms of this Agreement, WDC operations, future planning and other
concerns/issues identified by either party.
20.5 All issues raised by the MWMC liaison personnel and/or the Clinic
liaison and clinical manager shall be resolved by mutual Agreement of the
parties within twenty (20) days of their initial identification or other time
frame as agreed upon by the parties.
20.6 Clinic's Liaison shall provide to MWMC Liaison notification of all
actions taken to resolve any problem identified by MWMC Liaison within five
(5) days of the action.
20.7 Parties agree that upon mutual agreement Clinic staff may become
MWMC staff.
AGREEMENT - 15
21. CLAUSE HEADING:
The clause headings appearing in this Agreement are for the purpose of
convenience and ready reference. They do not purport to, and shall not be
deemed to, define, limit, or extend the scope or intent of the clauses
to which they appertain.
22. LANGUAGE OF AGREEMENT:
Pronouns used in this instrument shall be construed in accordance with
appropriate gender or neuter and as either singular or plural as the context
requires.
23. PREPARATION OF AGREEMENT:
This instrument shall be construed as though prepared by MWMC and Clinic.
24. INCONSISTENT PROVISIONS:
To the extent possible, the Bylaws, rules and regulations, and policies
of the hospital and this Agreement shall be construed as being consistent
with one another. In the event that consistent construction between this
Agreement and the aforementioned documents is not possible, the provisions of
this Agreement are to be given effect and intended to supersede inconsistent
provisions unless to do so would be unlawful.
25. WARRANTY OF AUTHORITY:
MWMC represents and warrants to Clinic and Clinic warrants to MWMC that
each has the full power and authority to enter into this Agreement.
26. SEVERABILITY:
If any term, covenant, or condition of this Agreement or the
application thereof to any person or circumstance shall be invalid or
unenforceable, the remainder of this Agreement and the application of any
term or provision to persons or circumstances, other than those as to which
it is held invalid or unenforceable, shall not be affected thereby; and all
other terms shall be valid and enforceable to the fullest extent permitted by
law, except where to do so would frustrate the purpose of this Agreement.
27. ENTIRETY OF THE AGREEMENT:
This instrument contains the entire Agreement between the parties; and
no statements, writings, promises, or inducements made by either party or an
agent of either party that are not contained in this written Agreement, shall
be valid or binding. This Agreement may not be enlarged, modified, or altered
except
AGREEMENT - 16
in writing, signed by the parties and endorsed on this Agreement.
28. ASSIGNMENT:
28.1 Nothing contained within this Agreement shall be construed to
permit the assignment or delegation by MWMC or Clinic of any rights, duties,
or obligations hereunder; and such assignment is expressly prohibited, except
as delineated in Paragraphs 28.2 and 28.3 below.
28.2 Nothing contained in this Agreement shall be construed as to
prohibit either party from delegating duties to subcontractors as relates to
any of the obligations for record-keeping, either medical or financial, which
are consistent with either party's professional duty.
28.3 Nothing contained in this Agreement shall be construed as to
prohibit either party from assigning its rights or delegating its duties to a
subsidiary or successor corporation.
29. GOVERNING LAW:
This Agreement is executed in the City of Klamath Falls, State of
Oregon, and shall be construed under the laws of the State of Oregon.
30. CONFIDENTIALITY.
30.1 The parties to this Agreement agree that all terms and conditions
of this Agreement shall be kept confidential except as herein specifically
required by state or federal law.
30.2 The parties shall exercise reasonable efforts to keep the terms
and provisions of this Agreement confidential, and also shall exercise
reasonable efforts not to disclose any of the terms of employee's employment,
salary and benefits to other persons except in response to an order of a
court, governmental demands, or, if necessary, to attorneys, accountants and
auditors, who shall be apprised of this Agreement concerning confidentiality.
30.2.1 Not withstanding paragraph 30.1 and 30.2, neither party shall
have any liability to the other party if for any reason beyond the reasonable
control of either party the terms and conditions of this Agreement shall be
disclosed or otherwise become known to others.
30.2.2 This obligation shall continue in force after the term of this
Agreement, and shall survive any termination of this Agreement.
AGREEMENT - 17
31. BENEFIT OF AGREEMENT:
This Agreement shall inure to the benefit of the parties to this
Agreement.
32. NOTICE:
All notices given under this Agreement shall be in writing, and shall be
sent by registered mail to the parties at their respective addresses as given
in the signature block section below.
IN WITNESS HEREOF, the parties hereto have duly executed this Agreement
effective the date first written above.
XXXXX XXXX MEDICAL CENTER Medford Clinic, P.C.
0000 Xxxxxxx Xx. Address 000 Xxxxx Xxx Xxxxx
Xxxxxxx Xxxxx, XX 00000 Xxxxxxx, XX 00000-0000
By /s/ DON L. YORK By /s/ Xxxxx Xxx Xxx, M.D.
--------------------------------- ---------------------------------
Its V.P. Its PRESIDENT
-------------------------------- --------------------------------
By /s/ XXX XXXX
---------------------------------
Its CEO
--------------------------------
By /s/ XXXX XXXXXXXXXX
---------------------------------
Its ASSOCIATE ADMINISTRATOR
--------------------------------
This Agreement approved as to legal sufficiency dated this
14TH day of JUNE, 1996
BOIVIN, JONES, UERLINGS, DiIACONI & XXXX
Attorneys for MWMC
Signed: /s/ XXXXXXX X. XxXXXXXX
-------------------------------
Xxxxxxx X. XxXxxxxx
AGREEMENT - 18