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HomeMy Public PortalAbout133-2018 - HR - RMD Health and Wellness Clinic - For Nurse Practioner Blood Draw - Health FairPROFESSIONAL CONSULTING SERVICES AGREEMENT 1 THIS AGREEMENT made and entered into this'll l day of �I, 2018, and referred to as Contract No. 133-2018, by and between the City of Richmond, In (ana, a municipal corporation acting by and through its Board of Public Works and Safety (hereinafter referred to as the "City") and RMD Health and Wellness Clinic, LLC d/b/a Healthworks Corporate Wellness Center, 1301 South 81h Street, Richmond, Indiana, 47374 (hereinafter referred to as the "Contractor"). SECTION I. STATEMENT AND SUBJECT OF WORK City hereby retains Contractor to provide consulting and administration services in connection with the City's 2018 Health Fair, including, but not limited to, providing a nurse practitioner to order test results affiliated with the wellness screening activities taking place during said Fair (the Project). Contractor shall perform all services described on Contractor's proposed Wellness Center Management Proposal attached and marked as "Exhibit A" consisting of twelve (12) pages, which proposal is dated August 9, 2018, is attached hereto, made a part hereof, and incorporated herein by reference. The Contractor shall abide by the same. The parties specifically agree that paragraph (f) of Section 2 ("Non -Competition") of Contractor's proposal (Exhibit A) shall not apply and the Contractor shall have no remedies in the event City enters into any alternate competition upon the termination of this Agreement. Should any provisions, terms, or conditions contained in any of the documents attached hereto as Exhibits, or in any of the documents incorporated by reference herein, conflict with any of the provisions, terms, or conditions of this Agreement, this Agreement shall be controlling. This Agreement shall also supersede paragraph (b) ("Sole and Entire Agreement") of Section 11 of Contractor's proposal (Exhibit A). Contractor shall perform all work herein in a timely manner, conforming to all applicable professional standards. The Contractor shall furnish all labor, material, equipment, and services necessary for the proper completion of all work specified. No performance of services shall commence until the following has been met: 1. The City is in receipt of any required certificates of insurance; 2. The City is in receipt of any required affidavit signed by Contractor in accordance with Indiana Code 22-5-1.7-11(a)(2); and 3. A purchase order has been issued by the Purchasing Department. SECTION II. STATUS OF CONTRACTOR Contractor shall be deemed to be an independent contractor and is not an employee or agent of the City of Richmond. The Contractor shall provide, at its own expense, competent supervision of the work. Contract No. 133-2018 Page 1 of 6 SECTION III. COMPENSATION City shall pay Contractor a total amount not to exceed One Dollar and Zero Cents ($1.00) for satisfactory completion of this Agreement, the receipt of which is hereby acknowledged as received by Contractor. Contractor understands, acknowledges, and agrees that the respective duties and promises contained this Agreement and contained in Exhibit A shall also otherwise constitute valuable consideration for purposes of this Agreement. The parties specifically agree that Contractor shall not charge, and City shall not pay, any fees or other expenses described in paragraph (a)(i.) and described in paragraph (a)(ii.) of Section 7 ("Fees and Reimbursements") of Contractor's proposal (Exhibit A) due to City's retention of a separate vendor for the blood -draw testing services necessary for the wellness screening operations to be conducted at the City's Health Fair. Additionally, any invoiced expenses mutually agreed upon as outlined in paragraph (c) and paragraph (d) of Section 7 of Contractor's proposal shall not be issued by Contractor unless and until any such mutual agreement is incorporated as a written addendum to this Agreement. SECTION IV. TERM OF AGREEMENT This Agreement shall be effective when signed by all parties and shall continue in effect until completion of the Project. The City shall retain one (1) option to renew this Agreement for the 2019 calendar year for the 2019 Health Fair in the event the City determines it is in the financial interest of the City to exercise said option. This Agreement shall not automatically renew. Notwithstanding the term of this Agreement, City may terminate this Agreement in whole or in part, for cause, at any time by giving at least five (5) working days written notice specifying the effective date and the reasons for termination which shall include but not be limited to the following: a. failure, for 'any reason of the Contractor.to fulfill in a timely manner its obligations under this Agreement; b. submission of a report, other work product, or advice, whether oral or written, by the Contractor to the City that is incorrect, incomplete, or does not meet reasonable professional standards in any material respect; c. ineffective or improper use of funds provided under this Agreement; d. suspension or termination of the grant funding to the City under which this Agreement is made; or e. unavailability of sufficient funds to make payment on this Agreement. In the event of such termination, the City shall be required to make payment for all work performed prior to the date this Agreement is terminated, but shall be relieved of any other responsibility herein. This Agreement may also be terminated, in whole or in part, by mutual Agreement of the parties by setting forth the reasons for such termination, the effective date, and in the case of partial termination, the portion to be terminated. Page 2 of 6 SECTION V. INDEMNIFICATION AND INSURANCE Contractor agrees to obtain insurance and to indemnify the City for any damage or injury to person or property or any other claims which may arise from the Contractor's conduct or performance of this Agreement, either intentionally or negligently; provided, however, that nothing contained in this Agreement shall be construed as rendering the Contractor liable for acts of the City, its officers, agents, or employees. Contractor shall as a prerequisite to this Agreement, purchase and thereafter maintain such insurance as will protect it from the claims set forth below which may arise out of or result from the Contractor's operations under this Agreement, whether such operations by the Contractor or by any sub- contractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts the Contractor may be held responsible. Coveraze Limits A. Worker's Compensation & Statutory Disability Requirements B. Employer's Liability $100,000 C. Comprehensive General Liability Section 1. Bodily Injury $1,000,000 each occurrence $2,000,000 aggregate Section 2. Property Damage $1,000,000 each occurrence D. Comprehensive Auto Liability Section 1. Bodily Injury $1,000,000 each person $1,000,000 each occurrence Section 2. Property Damage $1,000,000 each occurrence E. Comprehensive Umbrella Liability $1,000,000 each occurrence $2,000,000 each aggregate F. Malpractice/Errors & Omissions Insurance $1,000,000 each occurrence $1,000,000 each aggregate SECTION VI. COMPLIANCE WITH WORKER'S COMPENSATION LAW Contractor shall comply with all provisions of the Indiana Worker's Compensation law, and shall, before commencing work under this Agreement, provide the City a certificate of insurance, or a certificate from the industrial board showing that the Contractor has complied with Indiana Code Sections 22-3-2-5, 22-3- 5-1 and 22-3-5-2. If Contractor is an out of state employer and therefore subject to another state's worker's compensation law, Contractor may choose to comply with all provisions of its home state's worker's compensation law and provide the City proof of such compliance in lieu of complying with the provisions of the Indiana Worker's Compensation Law. Page 3 of 6 SECTION VII. COMPLIANCE_ WITH INDIANA E-VERIFY PROGRAM REQUIREMENTS Pursuant to Indiana Code 22-5-1.7, Contractor is required to enroll in and verify the work eligibility status of all newly hired employees of the contractor through the Indiana E-Verify program. Contractor is not required to verify the work eligibility status of all newly hired employees of the contractor through the Indiana E-Verify program if the Indiana E-Verify program no longer exists. Prior to the performance of this Agreement, Contractor shall provide to the City its signed Affidavit affirming that Contractor does not knowingly employ an unauthorized alien in accordance with IC 22-5-1.7-11 (a) (2). In the event Contractor violates IC 22-5-1.7 the Contractor shall be required to remedy the violation not later than thirty (30) days after the City notifies the Contractor of the violation. If Contractor fails to remedy the violation within the thirty (30) day period provided above, the City shall consider the Contractor to be in breach of this Agreement and this Agreement will be terminated. If the City determines that terminating this Agreement would be detrimental to the public interest or public property, the City may allow this Agreement to remain in effect until the City procures a new contractor. If this Agreement is terminated under this section, then pursuant to IC 22-5-1.7-13 (c) the Contractor will remain liable to the City for actual damages. SECTION VIII. IRAN INVESTMENT ACTIVITIES Pursuant to Indiana Code (IC) 5-22-16.5, Contractor certifies that Contractor is not engaged in investment activities in Iran. In the event City determines during the course of this Agreement that this certification is no longer valid, City shall notify Contractor in writing of said determination and shall give contractor ninety (90) days within which to respond to the written notice. In the event Contractor fails to demonstrate to the City that the Contractor has ceased investment activities in Iran within ninety (90) days after the written notice is given to the Contractor, the City may proceed with any remedies it may have pursuant to IC 5-22-16.5. In the event the City determines during the course of this Agreement that this certification is no longer valid and said determination is not refuted by Contractor in the manner set forth in IC 5-22-16.5, the City reserves the right to consider the Contractor to be in breach of this Agreement and terminate the agreement upon the expiration of the ninety (90) day period set forth above. SECTION IX. PROHIBITION AGAINST DISCRIMINATION A. Pursuant to Indiana Code 22-9-1-10, Contractor, any sub -contractor, or any person acting on behalf of Contractor or any sub -contractor shall not discriminate against any employee or applicant for employment to be employed in the performance of this Agreement, with respect to hire, tenure, terms, conditions or privileges of employment or any matter directly or indirectly related to employment, because of race, religion, color, sex, disability, national origin, or ancestry. B. Pursuant to Indiana Code 5-16-6-1, the Contractor agrees: That in the hiring of employees for the performance of work under this Agreement of any subcontract hereunder, Contractor, any subcontractor, or any person acting on behalf of Contractor or any sub -contractor, shall not discriminate by reason of race, religion, color, sex, national origin or ancestry against any citizen of the State of Indiana who is qualified and available to perform the work to which the employment relates; 2. That Contractor, any sub -contractor, or any person action on behalf of Contractor or any sub -contractor shall in no manner discriminate against or intimidate any employee hired Page 4 of 6 for the performance of work under this Agreement on account of race, religion, color, sex, national origin or ancestry; That there may be deducted from the amount payable to Contractor by the City under this Agreement, a penalty of five dollars ($5.00) for each person for each calendar day during which such person was discriminated against or intimidated in violation of the provisions of the Agreement; and That this Agreement may be canceled or terminated by the City and all money due or to become due hereunder may be forfeited, for a second or any subsequent violation of the terms or conditions of this section of the Agreement. C. Violation of the terms or conditions of this Agreement relating to discrimination or intimidation shall be considered a material breach of this Agreement. SECTION X. RELEASE OF LIABILITY Contractor hereby agrees to release and hold harmless the City and all officers, employees, or agents of the same from all liability for negligence which may arise in the course of Contractor's performance of its obligations pursuant to this Agreement. SECTION XI. MISCELLANEOUS This Agreement is personal to the parties hereto and neither party may assign or delegate any of its rights or obligations hereunder without the prior written consent of the other party. Any such delegation or assignment, without the prior written consent of the other party, shall be null and void. This Agreement shall be controlled by and interpreted according to Indiana law and shall be binding upon the parties, their successors and assigns. This document constitutes the entire Agreement between the parties, although it may be altered or amended in whole or in part at any time by filing with the Agreement a written instrument setting forth such changes signed by both parties. By executing this Agreement the parties agree that this document supersedes any previous discussion, negotiation, or conversation relating to the subject matter contained herein. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. The parties hereto submit to jurisdiction of the courts of Wayne County, Indiana, and any suit arising out of this Contract must be filed in said courts. The parties specifically agree that no arbitration or mediation shall be required prior to the commencement of legal proceedings in said Courts. By executing this Agreement, Contractor is estopped from bringing suit or any other action in any alternative forum, venue, or in front of any other tribunal, court, or administrative body other than the Circuit or Superior Courts of Wayne County, Indiana, regardless of any right Contractor may have to bring such suit in front of other tribunals or in other venues. Any person executing this Contract in a representative capacity hereby warrants that he/she has been duly authorized by his or her principal to execute this Contract. In the event of any breach of this Agreement by Contractor, and in addition to any other damages. or remedies, Contractor shall be liable for all costs incurred by City in its efforts to enforce this Agreement, including but not limited to, City's reasonable attorney's fees. Page 5 of 6 In the event that an ambiguity, question of intent, or a need for interpretation of this Agreement arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement at Richmond, Indiana, as of the day and year first written above, although signatures may be affixed on different dates. "CITY" THE CITY OF RICHMOND, INDIANA by and through its Board of Public Works and Safety -By: ql�Alaw �Ge/ Y Vicki Robinson, President By: ,� � Richard Foore, Member a tj� Anthony• •' "CONTRACTOR" RMD HEALTH AND WELLNESS CLINIC, LLC DB/A HEALTHWORKS CORPORATE WELLNESS CENTER 1301 South 8'h Street Richmond, IN 47374 By: Printed: neA� Title: PK",C_Ckj_� APPROVED: C s Date: q l 18 avid M. Snoral or Date: � J —// Page 6 of 6 WELLNESS CENTER MANAGEMENT AGREEMENT THIS WELLNESS CENTER MANAGEMENT AGREEMENT, dated as of August 9th, 2018, (this "Agreement") is by and between RMD Health and Wellness Clinic LLC d/b/a Healthworks Corporate Wellness Center, an Indiana limited liability company (hereinafter "HEALTHWORKS"), and COMPANY., (hereinafter "COMPANY"), and (HEALTHWORKS and COMPANY are occasionally hereinafter referred to as the "Parties"). WITNESSETH: WHEREAS, HEALTHWORKS owns and operates a program designed to coordinate and manage a near -site health care wellness center for local employers located at the 1301 South 8th St., Richmond, IN 47374 (hereinafter the "Wellness Center"), which program includes but is not limited to contracting with qualified physician(s) and nurse practitioner(s) (hereinafter collectively referred to as the "Medical Professionals") and medical assistant(s) (hereinafter the "Medical Assistants") to provide Medical Services (as hereinafter defined) at the Wellness Center (such program in its entirety hereinafter referred to as the "Program"). WHEREAS, COMPANY desires to contract with HEALTHWORKS, and HEALTHWORKS desires to contract with COMPANY, for HEALTHWORKS to operate and manage the Program for the providing of Medical Services at Wellness Center (as hereinafter defined) subject to the terms and conditions and agreements hereinafter set forth in this Agreement. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency of which are hereby acknowledged, the parties, each intending to be legally bound, agree as follows: AGREEMENT Section 1. General Obligations. HEALTHWORKS shall perform its obligations to COMPANY related to the Program, shall manage the Program and Wellness Center, shall obtain supplies and equipment necessary for the Program, and shall contract with the Medical Professionals and the Medical Assistants to perform Medical Services at Wellness Center pursuant to this Agreement. COMPANY shall perform its obligations to HEALTHWORKS as set forth in this Agreement. Except as otherwise provided herein, each Party shall bear all expenses related to the discharge of its obligations set forth in this Agreement. Section 2. Term. (a) Term. The term of this Agreement (hereinafter the "Term") shall commence on the date of execution of this Agreement and continue for two (2) years, automatically renewing for two (2) year terms thereafter. (b) Wellness Center Opening Date. The "Wellness Center Opening Date" shall mean the date indicated by written notice from HEALTHWORKS to COMPANY on which Wellness Center will become available to COMPANY's covered employees and 1 EXHIBIT f�,_ PAGE j_,OFt, dependents. (c) Termination without Cause. This Agreement may be terminated by COMPANY without cause at any time during the Term upon one hundred eighty (180) days written notice. (d) Termination with Cause. This Agreement may be terminated during the Term by either Party giving the other Party written notice if (i) the other Party fails to observe or comply with the provisions of this Agreement or (ii) upon the declaration of bankruptcy or insolvency of the other Party according to law or if any assignment shall be made of the other Party's property for the benefit of creditors, either of which shall constitute a breach of this Agreement, and both are subject to the following: (a) the notifying Party shall provide the breaching Party written notice sent via certified United States mail or other verifiable method advising the breaching Party is in default, and (b) the breaching Party shall have thirty (90) days from the date of receipt of the written notice in which to cure said breach. (e) Effect of Expiration or Termination. The expiration or the termination of this Agreement shall not affect the obligation of COMPANY to pay compensation to HEALTHWORKS for any outstanding invoice for the period prior to such expiration or termination and shall not affect the obligation of HEALTHWORKS to provide Reports for all time periods up to the effective date of such expiration or termination. (f) Non -Competition. In the event of termination of this Agreement by COMPANY for any reason, for a period of two (2) years after termination, COMPANY shall not engage the Medical Professionals or Medical Assistants who provided Medical Services at Wellness Center or cause such personnel to be engaged by any successor Wellness Center provider. COMPANY acknowledges that an irreparable injury will result to HEALTHWORKS in the event of a violation of this subsection, and in the event of such violation, HEALTHWORKS shall be entitled, in addition to any other remedy, to an immediate injunction to be issued by a Court having jurisdiction to restrain the continuing violation by COMPANY and COMPANY consents to the jurisdiction of such Court. Section 3. Obligations of COMPANY. (a) Confidentiality. COMPANY shall not disclose any privileged or Confidential Information which it either obtains or learns as a result of this Agreement. Without limiting the generality of the foregoing, COMPANY as well as its principals, officer, employees, contractors, agents or assigns, shall maintain the confidentiality of any information defined as "Confidential Information" as well as any business or financial records, matters of practice of the other to which either shall have access or knowledge. This Section 3(a) shall survive the termination of this Agreement. (b) Health Plan Responsibilities. COMPANY agrees to assume full responsibility for the integration of the Healthworks Corporate Wellness Center into "Company"' health plan and associated documents and to make all amendments, disclosures and reports required by state or federal law. 2 EXHIBIT_8 PAGE ia OF15] (c) General Liability and Workers Compensation. COMPANY shall maintain the following insurances in amounts that , are appropriate to businesses or other organizations which are similar in size or service to COMPANY in Indiana: (i) Applicable Federal and State Worker's compensation acts, covering employer's liability and third party actions against the COMPANY arising out of this Agreement; and (ii) Standard comprehensive general liability insurance. (d) List of Members. Contemporaneous with the execution of this Agreement, COMPANY agrees to supply HEALTHWORKS with a list of Members, as that term is defined in Section 7(b). COMPANY shall have a continuing obligation to provide a list to HEALTHWORKS each time such list undergoes a change, and in no case less than once per month. Section 4. Obligations of HEALTHWORKS. HEALTHWORKS agrees during the Term to provide the following related to the Program, the Medical Services and Wellness Center: (a) Medical Professionals and Medical Assistants. HEALTHWORKS shall provide a schedule of all Medical Professionals and Medical Assistants who will render care to COMPANY's employees, spouses, and dependents ("Participants"). HEALTHWORKS shall contract a minimum of one Medical Professional as staff. COMPANY acknowledges and agrees that the Medical Professionals and certain Medical Assistants provided by HEALTHWORKS for Wellness Center hereunder are independent contractors of HEALTHWORKS. HEALTHWORKS shall contract duly licensed and qualified Medical Professional and Medical Assistants to provide Medical Services in the State of Indiana. (b) Medical Services. The Medical Services to be performed by. the Medical Professionals and the Medical Assistants at Wellness Center (hereinafter collective, the "Medical Services") to any individual Participant are to be determined by the Medical Professionals and the Medical Assistant and the individual Participant but generally shall include, but not necessarily be limited to (i) diagnostic and treatment services for illnesses and injuries (whether work -related or not), (ii) dispensing of pre -packaged prescription drugs from a predefined formulary established by the Parties, (iii) certain wellness center laboratory services; and (iv) maintenance of electronic medical records for each Participant, all of which shall be performed according to the standards set forth in Section 6. Occupational Health services will be provided on a limited, mutually agreed upon, basis. (c) Administrative Services. The Medical Professionals and the Medical Assistants have been contracted to perform all reasonable and necessary administrative services incidental to the performance of the Medical Services without any additional fee or charge to COMPANY, including but not limited to storage of all pharmaceuticals in a secure, lockable cabinet in accordance with applicable law, collaborating with COMPANY's human resources department to provide Program education and communication, cooperating with COMPANY's Third Party Administrator ("TPA") to provide costs/benefits 3 EXHI6IT � PAGE 3 OFF_ analysis, assisting in providing monthly costs reports, and performing safe disposal and removal of bodily fluids and cleaning and removal of all spills of biologically hazardous or other materials in accordance with applicable law related to medical waste storage and removal. (d) Medical Records. HEALTHWORKS has contracted with the Medical Professionals to maintain electronic medical records (hereinafter "EMIR") for all of the Participants seen by the Medical Professionals, all of which medical records shall be maintained in a professional manner that shall be consistent with the accepted practice of the State of Indiana. HEALTHWORKS has contracted that the Medical Professionals to comply with the privacy standards required by the Health Insurance Portability and Accountability Act of 1996, as amended ("HIPAA") and all State laws related to the protection of patient health information.. COMPANY acknowledges and agrees that all of the medical records and other protected health information maintained by the Medical Professionals shall be held by the Medical Professionals in strictest confidence and that COMPANY shall not be entitled to have access to the medical records maintained by the Medical Professionals in the absence of an appropriate written authorization from the relevant Participant (e) Insurance. HEALTHWORKS shall obtain and maintain throughout the Term of this Agreement general commercial liability insurance (including contracted liability coverage with respect to this Agreement) on an occurrence basis with limits of no less than $1 M occurrence / $1 M annual aggregate and workers' compensation and occupational disease insurance as required by the laws of the State of Indiana. HEALTHWORKS shall maintain continuing coverage of both general liability and medical errors and omissions policies to cover acts and omissions that occur during the Term of this Agreement, either through maintaining occurrence based coverage or through purchase of extended reporting endorsement ("tail") coverage if HEALTHWORKS's policies are on a claims made basis. Any insurance maintained by any COMPANY Indemnitees (defined below) shall be strictly excess, secondary and non-contributory of the insurance coverage provided by HEALTHWORKS. Legal authority holding that agreements to provide insurance limit a party's recourse solely to insurance proceeds is not applicable and does not limit any COMPANY Indemnitee's recourse. Section 5. Representations and Warranties. (a) Representations and Warranties of COMPANY. COMPANY represents, covenants, and warrants that each of the following is true and accurate as of the date of this Agreement. The truth and accuracy of each of the following is a condition precedent to HEALTHWORKS's obligations hereunder, but any one or more may be waived by HEALTHWORKS at HEALTHWORKS's option: (i) COMPANY is a corporation duly organized, existing, and in good standing under the laws of the jurisdiction of its incorporation and is duly qualified to do business in the State of Indiana and is in good standing with such state. COMPANY has the corporate power and authority to own its properties and to carry on its business as is now being conducted and to enter into this Agreement and perform its obligations hereunder. EXHIBIT ft_ PAGE _�J_OP4 (ii) There is no suit, action or legal, administrative, arbitration, or other proceedings or governmental investigation pending orthreatened against COMPANY that affect this Agreement. (iii) To the best of COMPANY's knowledge, none of the representations and warranties made by COMPANY in this Agreement contains or will contain any untrue statement of a material fact or omits or will omit to state any material fact necessary to make the statements herein or therein not misleading. (b) Representations and Warranties of HEALTHWORKS. HEALTHWORKS represents, covenants, and warrants that each of the following is true and accurate as of the date of this Agreement. The truth and accuracy of each of the following is a condition precedent to COMPANY's obligations hereunder, but any one or more may be waived by COMPANY at COMPANY's option: (i) HEALTHWORKS is a limited liability company duly organized, existing, and in good standing under the laws of the state of its organization and is duly qualified to do business in the State of Indiana and is in good .standing with such state. HEALTHWORKS has the company power and authority to own its properties and to carry on its business as is now being conducted and to enter into this Agreement and perform its obligations hereunder. (ii) There is no suit, action or legal, administrative, arbitration, or other proceedings or governmental investigation pending or threatened against HEALTHWORKS that affect this Agreement. (iii) To the best of HEALTHWORKS's knowledge, none of the representations and warranties made by HEALTHWORKS in this Agreement contains or will contain any untrue statement of a material fact or om its or will om it to state any material fact necessary to make the statements herein or therein not misleading. Section 6. Standards of Medical Services Performance. (a) Medical Professional to Determine Methods. The Medical Professionals shall determine their own means and methods of performing Medical Services pursuant to this Agreement. (b) Compliance with Law and Licensing. HEALTHWORKS has contracted to have all Medical Professionals; (i) comply with all applicable laws, rules and regulations related in any way to the Program, including, without limitation, those governing the licensing and the regulation of physicians, nurse practitioners, pharmacists, or physician's assistants, as the case may be; and (ii) comply with all applicable laws, rules and regulations with regulations governing the licensing and regulation of medical assistants. (c) Laws and Regulations. HEALTHWORKS has contracted to have Medical Professionals and the Medical Assistants provide the Medical Services in a manner consistent with all applicable laws, rules and regulations and in a professional manner EXHIBIT PAGE IF consistent with the standard of care for Medical Services provided in the State of Indiana. (d) Health Professionals. COMPANY agrees and acknowledges that the Medical Professionals from time to time may have another qualified physician replace the Medical Professional during his regularly scheduled time at Wellness Center in the event of an emergency or scheduled vacation time. Section 7. Fees and Reimbursements. COMPANY shall pay HEALTHWORKS the following fees and reimbursements related to HEALTHWORKS's management and operation of COMPANY's Wellness Center. (a) Financial Overview. In consideration of HEALTHWORKS's responsibilities under this Agreement, COMPANY shall pay to HEALTHWORKS the amount described in Section 7(b) of this Agreement (the "Fee") per Member per month ("PMPM") during the Initial Term and any Renewal Terms. COMPANY shall also be responsible for the following expenses associated with the HEALTHWORKS Clinic (collectively, "Other Expenses"): i. On site laboratory collection and/or testing, and cost of providing and dispensing of pharmaceuticals; and cost of providing medical care. ii. Costs for printing and mailing materials for employee communications and Healthworks Clinic promotions delivered outside the Healthworks Clinic. (b) The Fee. Subject to the terms of this Section 7 the COMPANY shall pay to the HEALTHWORKS the amount of Zero Dollars ($0.00) PMPM. Member is defined as any individual covered under COMPANY's employer sponsored health plan (the "Fee"). (c) Payment for Other Expenses. COMPANY shall pay for Other Expenses mutually agreed upon and due under this Agreement through separate invoices, which may be issued from HEALTHWORKS or directly from vendor. Such expenses shall become due and be paid as stated in the invoice. (d) Payment of Fee. COMPANY shall pay the Fee in advance on a quarterly basis, with payment occurring no later than the first day of each calendar quarter. The amount of payment shall be determined by the product of the number of Members) based on the most recent submission of Eligibility Information in accordance with Section of this Agreement), multiplied by the Fee, multiplied by the number of months in the calendar quarter. HEALTHWORKS shall provide COMPANY with an invoice of the payment due under this Section 7(d) at least 30 days prior to the date upon which such payment is due. Notwithstanding anything in this Agreement to the contrary, if any invoices (s) or portion (s) are not disputed in writing by COMPANY within one hundred eighty (180) days of the date of the invoice _ 6 EXHIBIT -A- PAGE UOFa COMPANY waives its right to later dispute such invoice. (e) Late Payments. Any amounts due to HEALTHWORKS under this Section 7 that are not paid by the due date will be assessed a late fee in an amount of Five. Percent (5%) of the delinquent payment. Section 8. Relationship of Parties. The parties acknowledge and agree that HEALTHWORKS's relationship to COMPANY is that of an independent contractor. Neither party has any authority to bind or obligate the other party in any manner whatsoever. This Agreement does not constitute either party as an agent of the other party. Neither party shall be responsible in any way for any obligation or liability incurred or assumed by the other party except as specifically described in this Agreement. Neither party shall hold itself out to any third party as a partner of, joint venture with, agent of or in any other capacity with regard to the other party except as specifically described in this Agreement. Section 9. Indemnification. (a) Indemnification of COMPANY by HEALTHWORKS. HEALTHWORKS shall jointly and severally indemnify, defend, and hold harmless COMPANY and its affiliates and their respective, directors, officers, agents and employees ("COMPANY Indemnitees") from any and all claims, demands, actions, suits and other proceedings, whether civil, criminal, administrative, investigative or otherwise, and all judgments, damages, fines, losses, costs, expenses, liabilities, obligations and other amounts, including attorneys' fees, fines, penalties and punitive damages due to, arising or alleged to have arisen, directly or indirectly out of or related to or allegedly related to: (i) any act, violation of law, or error or omission by HEALTHWORKS or its directors, officers, employees, agents or independent contractors and/or any Medical Professional or Medical Assistant or other person who provides services in connection with the Program; (ii) the Program (including, without limitation, the operation of Wellness Center); (iii) the provision of or failure to provide any services including, without limitation, any Medical Services or Administrative Services; (iv) any breach or failure to comply with this Agreement or failure to ensure other compliance with this Agreement by HEALTHWORKS; and/or (v) any act, error or omission by any Medical Professional, Medical Assistant or Health Professional. The indemnities set forth herein will apply regardless of the active or passive negligence or sole, joint, concurrent, or comparative negligence or fault of any COMPANY Indemnitees and regardless of whether liability without fault or strict liability is imposed or sought to be imposed upon any COMPANY Indemnitee, except to the proportional extent that a final judgment of a court of competent jurisdiction establishes under the comparative negligence principles that a claim was caused by the gross negligence or intentional misconduct of a COMPANY Indemnitee. The indemnities set forth herein shall apply notwithstanding HEALTHWORKS's duty to obtain and maintain insurance. The provisions of this Section shall survive the expiration or earlier termination of this Agreement until all claims involving any indemnified matter are fully and finally barred by the applicable statute of limitations. (b) Indemnification of HEALTHWORKS by COMPANY. COMPANY shall indemnify, defend, and hold harmless HEALTHWORKS and its affiliates, and their respective directors, officers, agents and employees ("HEALTHWORKS Indemnitees") EXHIBIT. PAGE OF...L�] 7 from any and all claims, demands, actions, suits and other proceedings, whether civil, criminal, administrative, investigative or otherwise, and all judgments, damages, fines, losses, costs, expenses and other amounts, including reasonable attorneys' fees, fines penalties and punitive damages due to, arising or alleged to have arisen out or related to or allegedly related to: (i) any grossly negligent act, willful misconduct, or violation of law, by COMPANY or its directors, trustees, officers, employees or agents related to or resulting from the performance of the duties and responsibilities of COMPANY pursuant to this Agreement. (c) If any action or proceeding is brought against an indemnified Party or an Indemnified Party receives a notice of a claim, for which action, proceeding or claim such party (the "Indemnified Party") may seek indemnity pursuant to this Agreement the Indemnified Party shall promptly notify the other party (the "Indemnifying Party"). The Indemnified Party's failure to so notify the Indemnifying Party shall not, however, relieve the Indemnifying Party from any liability it might otherwise have on account of this Agreement, except to the extent that the Indemnifying party is materially prejudiced by such failure to notify. The Indemnifying Party shall not indemnify the Indemnified Party for any legal expenses incurred by the Indemnified Party in connection with any such action, proceeding or claim to the extent such expenses are incurred before the Indemnified Party gives written notice of the action, proceeding or claim to the Indemnifying Party. The Indemnifying Party may undertake the defense of any action, proceeding or claim only after it agrees in writing to indemnify the Indemnified Party and provides the Indemnified Party proof of the Indemnifying Party's financial ability to defend and pay any and all damages and may contest or settle it on such terms as it may choose, provided, however, that the Indemnifying Party shall not have the right, without the Indemnified Party's consent, to settle any such claim without the consent of the Indemnified Party, such consent not to be unreasonably withheld, delayed or restricted. If the Indemnifying Party undertakes such defense, such defense shall be conducted by attorneys retained by the Indemnifying Party and approved by the Indemnified Party at the Indemnifying Party's cost and expense, but the Indemnified Party shall have the right to participate in such proceedings and to be represented by attorneys of its own choosing, at its own expense. (d) HEALTHWORKS and COMPANY Not Performing Medical Services. Each Party acknowledges and agrees that the other Party is not performing Medical Services or determining the appropriateness of any Medical Services in the performance of its obligations pursuant to this Agreement and that Medical Services shall be performed pursuant to this Agreement solely by the Medical Professionals and the Medical Assistants. (e) Survival. The indemnification obligations of COMPANY and HEALTHWORKS under this Section 9 shall survive expiration or termination of this Agreement. Section 10. Confidentiality and Non -Disclosure. (a) Under this Agreement, HEALTHWORKS may have access to confidential or proprietary information regarding COMPANY, and related business entities (the "Information"). HEALTHWORKS acknowledges the proprietary and sensitive nature ofthe 8 EXHIBIT PAGE OF Information and the importance of maintaining the secrecy and confidentiality of such Information. The Information includes, but is not limited to, proprietary and confidential matters concerning certain know-how, data and/or other matters related to COMPANY's current and proposed operations, as well as COMPANY's security and financial information, technical data, drawings, designs, software, tapes, inventions, developments, processes, technology information, marketing strategies, targeting methods, business objectives and any information relating to the pricing, and research development or related information to which HEALTHWORKS has gained access in connection with this Agreement. As used herein, the term "Information" shall also include, among other things, all biographical, demographic, personal and medical information relating to COMPANY's employees and their families. HEALTHWORKS and its employees and HEALTHWORKS's agents and subcontractors and their employees, shall not, without the prior written consent of COMPANY, disclose any Information to any third party, either orally or in writing, unless such disclosure is (i) required for its performance under this Agreement or (ii) required by law or legal or regulatory process. Unless otherwise required by law, HEALTHWORKS shall not release or disclose any information concerning the terms and conditions of this Agreement to any third party unless prior written consent is obtained from COMPANY. (b) HEALTHWORKS: (i) shall not, without COMPANY's prior written consent, disclose the Information in any manner except as expressly authorized by this Agreement, (ii) shall treat Information with at least the same degree of care that it treats its own confidential information but in no event with less than a reasonable degree of care; and (iii) shall use its best efforts to prevent- disclosure of Information to unauthorized parties. HEALTHWORKS shall notify COMPANY immediately of any loss or unauthorized disclosure or use of Information that comes to its attention. (c) HEALTHWORKS shall only use the Information for the purpose of performing the services under this Agreement and will restrict disclosure of the Information solely to those of its employees, agents and subcontractors with a need to know such Information for the purpose of performing such Services. HEALTHWORKS will ensure that any such person permitted access to any portion of the Information is advised of its confidential nature and that it may be used only for the purposes enumerated hereunder. (d) The parties agree that any unauthorized use or disclosure of Information by HEALTHWORKS may cause immediate and irreparable harm to COMPANY for which money damages may not constitute an adequate remedy. In such event, the parties agree that COMPANY and the relevant Affiliate may seek injunctive relief as appropriate. (e) If HEALTHWORKS is directed by court order, subpoena or other legal or regulatory agency's request or similar process to disclose any of the Information, HEALTHWORKS shall notify COMPANY in writing with a copy of such document attached, in sufficient detail immediately upon receipt of such court order, subpoena, legal EXHIBIT -Q_ PAGE 9 OF ��� 9 or regulatory agency's request or similar process, in order to permit application by COMPANY for an appropriate protective order. (f) HEALTHWORKS hereby acknowledges and agrees that it shall, upon reasonable notice, allow COMPANY and its management the opportunity of inspecting, auditing and examining HEALTHWORKS's operations and business records which are relevant to the services provided hereunder and to any exchange of Information related to such Services to ensure compliance with this Confidentiality and Non -Disclosure Section including, but not limited to, permitting on -site visits to HEALTHWORKS's facilities for the purpose of directly monitoring HEALTHWORKS's internal procedures with regard to the treatment of Information. HEALTHWORKS shall cooperate in good faith with COMPANY to correct any practices found to be deficient and non -compliant with this Section within a reasonable time after receipt of COMPANY's audit report. Section 11. General Provisions. (a) Exhibits. All Exhibits referenced herein are hereby made a part of and incorporated into this Agreement by this reference. (b) Sole and Entire Agreement. This Agreement constitutes the sole and entire agreement between the parties pertaining to the subject matter contained herein and supersedes all prior contemporaneous agreements, representations and understandings of the parties. It may not be modified except in a writing signed by both parties. (c) No Assignability. This Agreement may not be assigned in whole or in part by either Party without the prior written consent of the other Party. (d) Binding Effect. ffect. This agreement shall be binding upon and inure to the benefit of the Parties, their respective legal representatives, successors and permitted assigns. (e) No Waiver. No delay or failure to exercise any right under this Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right, unless otherwise expressly provided herein. (f) Governing Law. This agreement shall be governed, construed and enforced in accordance with the laws of the State of Indiana. (g) Headings Terms and References. Headings in this agreement are for convenience only and shall not be used to interpret or construe its provisions. Captions included are only for convenience and are not to be used for purposes of interpretation of this Agreement. References to particular Sections and Exhibits are to those of this Agreement. (h) Counterparts. This agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. (i) Severability. The Parties stipulate and agree that each and every provision or term within this Agreement is severable and that the invalidity of any term or portion of _ 10 EXHIBIT f� IPAGE�b this Agreement shall in no way affect the validity and enforceability of any other term or portion of this Agreement. Section 12. Notices. All notices under this Agreement shall be in writing and delivered by certified mail, return receipt requested, postage prepaid, addressed to the respective parties at the following addresses: To HEALTHWORKS: Greg Easley 36 South 9th St Richmond, IN 47374 To COMPANY: Section 13. Execution and Enforceability of Agreement. COMPANY and HEALTHWORKS represent and warrant to each other that (a) each is not prevented by any other agreement or contract or any law from entering into and performing this Agreement in accordance with its terms and (b) the Agreement has been duly and validly executed and delivered, and constitutes the legal, valid, binding and enforceable agreement of COMPANY and HEALTHWORKS. Section 14. Compliance with Laws. Each Party hereto agrees that it shall comply with all applicable federal, state, and local laws, ordinances and codes in performing its obligations hereunder, including the procurement of licenses, permits, certificates and any other requirements with regard to the Medical Services to be provided hereunder, including but not limited to any wellness center licenses. If, at any time during the Term of this Agreement, a Party is informed or information comes to its attention that it is or may be in violation of any law, ordinance, regulation, or code (or if it is so decreed or adjudged by any court, tribunal or other authority having competent jurisdiction), that party shall immediately take all appropriate steps to remedy such violation and comply with such law, regulation, ordinance or code in all respects. Further, each party shall establish and maintain all proper records (particularly, but without limitation, accounting records) required by any law, code of practice or corporate policy applicable to it from time to time. Without limiting the generality of the foregoing, HEALTHWORKS hereby represents, warrants and covenants that its personnel and its agents' and subcontractors' personnel have and will maintain the necessary licenses and permits to provide the Services required hereunder pursuant to all applicable laws, ordinances, regulations or codes. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their proper officers on the day and year first above written. RMD HEALTH AND WELLNESS CLINIC LLC DBA HEALTHWORKS CORPORATE z SS CENTER ---- y, President COMPANY _ 11 EXHIBIT PAGE -ll-0�-� 12