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HomeMy WebLinkAboutMcCullough, Andrea P. 2009-04-28A. 014P_�'Oj PROFESSIONAL SERVICES AGREEMENT THIS PP OFESSIONAL SERVICES AGREEMENT ("Agreement") is entered into and effective as of �. , 2009 ("Effective Date"), by and between the City of Ukiah, a general law municipal corporation ("City") and Andrea P. McCullough, M.D. ("Consultant"), collectively, the "Parties." WHEREAS, the Parties enter into this Agreement for the purpose of Consultant providing professional services to City under the terms and conditions set forth herein. THEREFORE, in consideration of the mutual covenants contained in this Agreement, the Parties agree as follows: 1. Services. Consultant shall provide the services as described in and in accordance with the schedule set forth in Exhibit "A" attached hereto and incorporated herein ("Services"). 2. Compensation; Business Tax Certificate. A. For the full performance of the Services as described herein, City shall compensate Consultant under the following terms: at the rate of One Hundred Dollars ($100.00) per hour, for approximately two to three (2-3) hours per month for a total annual compensation of approximately Three Thousand Dollars ($3,000.00). Additionally, the initial start-up time for Consultant will be approximately ten (10) hours at the rate of One Hundred Dollars ($100.00) per hour for an anticipated one -time -only compensation of up to One Thousand Dollars ($1,000.00). B. Consultant shall submit detailed monthly invoices reflecting all services performed during the preceding month, and including a revised schedule for performance and additional documentation requested by City, as applicable. C. Consultant shall be compensated for services in addition to those described in Exhibit A, only if Consultant and City execute a written amendment to this Agreement describing the additional services to be performed and the compensation to be paid for such services. D. Notwithstanding any provision herein, Consultant shall not be paid any compensation until such time as Consultant has obtained a currently valid Ukiah business license. E. City's obligation to pay compensation to Consultant as provided herein is contingent upon Consultant's performance of the Services pursuant to the terms and conditions of this Agreement and any amendments thereto. 3. Term. This Agreement shall become effective upon execution and shall continue until terminated by either party after giving the other party sixty (60) days advance written notice, with or without cause, of its intention to so terminate. Upon termination, any and PROFESSIONAL SERVICES AGREEMENT April 2009 all of City's documents or materials provided to Consultant and any and all of the documents or materials prepared for City or relating to the performance of the Services, shall be delivered to the City as soon as possible, but not later than fourteen (14) days after termination of the Agreement. 4. Immediate Termination. City may immediately terminate or suspend this Agreement for cause. Cause for immediate termination or suspension shall include, but not be limited to, any breach of this Agreement by Consultant or Consultant's bankruptcy or insolvency. Upon receipt of notice of termination or suspension for cause, Consultant shall immediately stop all work in progress under this Agreement. In the event of early termination of this Agreement by City, Consultant shall be entitled to payment for all Services performed to the date of termination to the extent such Services were performed to the satisfaction of City in accordance with the terms and conditions of this Agreement. If City terminates this Agreement for cause, Consultant shall be liable to City for any excess cost City incurs for completion of the Services. 5. Consultant's Representation; Independent Contractor. Consultant represents that Consultant possesses distinct professional skills in performing the Services. City has relied upon said representation as a material inducement to enter into this Agreement. Consultant shall, therefore, provide properly skilled professional and technical personnel to perform all Services under this Agreement. It is expressly understood that Consultant and its agents and employees shall act in an independent capacity and as an independent contractor and not as officers, employees or agents of City. This Agreement shall not be construed as an agreement for employment. 6. Facilities and Equipment. Consultant shall, at its sole cost and expense, furnish all facilities and equipment that may be required for furnishing Services pursuant to this Agreement. City shall furnish to Consultant no facilities or equipment, unless the City otherwise agrees in writing to provide the same. 7. Licenses, Permits, Etc. Consultant shall keep in effect at all times during the term of this Agreement any licenses, permits or other such approvals which are legally required for performing the Services. Licenses and permits specifically related to the performance of this Agreement, i.e., City Business License, DEA Number, etc., will be paid for by City. 8. Time. Consultant shall devote such time to the performance of the Services as may be reasonably necessary for satisfactory performance of Consultant's obligations pursuant to this Agreement. 9. Inspection. Consultant shall provide the City every reasonable opportunity to ascertain that the Services are being performed in accordance with the requirements and intentions of this Agreement. All work done and materials furnished, if any, shall be subject to inspection and approval by the City. The inspection of such work shall not relieve Consultant of any of its obligations pursuant to this Agreement. 2 PROFESSIONAL SERVICES AGREEMENT April 2009 10. Progress Reports. Upon the City's request, Consultant shall provide, in a form acceptable to City, written progress reports of all oral and written observations, opinions, recommendations, analyses, and conclusions related to Consultant's performance of the Services. 11. Confidentiality. In the course of Consultant's employment, Consultant may have access to trade secrets and confidential information, disclosure of which is protected or limited by law. Consultant shall not directly or indirectly disclose or use any such confidential information, except as required for the performance of the Services. 12. Conflict of Interest. Consultant represents that it presently has no interest, and covenants that it shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the Services hereunder. Consultant further covenants that, in the performance of this Agreement, it shall not employ any subcontractor or person having such a conflict of interest. Consultant represents that no one who has or will have any financial interest under the Agreement is an officer or employee of City. If such conflict of interest arises during this Agreement or any extension, Consultant will immediately advise City and City may, at its sole discretion, immediately terminate this Agreement. 13. Consultant No Agent. Except as City may specify in writing, Consultant shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Consultant shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever. 14. Standard of Performance. Consultant shall perform all the Services in a manner consistent with the standards of Consultant's profession in the locality, where the services are to be performed. All instruments of service of whatsoever nature, which Consultant delivers to City pursuant to this Agreement, shall be prepared in a substantial, first class and workmanlike manner and conform to the standards of Consultant's profession. All such instruments of service shall become the sole and exclusive property of City upon delivery of the same. 15. Assignment/Transfer. No assignment or transfer in whole or in part of this Agreement shall be made without the prior written consent of City. 16. Subcontractors. Consultant shall directly perform all Services, and shall not subcontract any portion of performance of the Services without the prior written consent of City. Any such subcontractors shall be required to comply, to the full extent applicable, with the terms and conditions of this Agreement, including but not limited to, procuring and maintaining insurance coverage as required herein and which shall name City as an additional insured. 17. Compliance With All Laws. Consultant shall fully comply with all applicable local, state and federal rules, laws, regulations and ordinances pertaining to the performance of the Services required hereunder. To the extent that any other government agency or PROFESSIONAL SERVICES AGREEMENT April 2009 entity provides compensation for any Services, Consultant shall comply with all rules and regulations applicable to such fiscal assistance. 18. Discrimination. During the performance of this Agreement, Consultant shall not discriminate against any employee or applicant for employment because of race, religion, creed, color, national origin, ancestry, gender, sexual orientation, age or physical or mental disability in violation of any applicable law. 19. Notice. Except as otherwise specified in this Agreement, all notices to be sent pursuant to this Agreement shall be made in writing, and sent to the Parties at their respective addresses specified below or to such other address as a Party may designate by written notice delivered to the other Party in accordance with this Section. All such notices shall be sent by: (i) personal delivery, in which case notice is effective upon delivery; (ii) certified or registered mail, return receipt requested, in which case notice shall be deemed delivered on receipt if delivery is confirmed by a return receipt; (iii) nationally recognized overnight courier, with charges prepaid or charged to the sender's account, in which case notice is effective on delivery if delivery is confirmed by the delivery service; or (iv) facsimile transmission, in which case notice shall be deemed delivered upon transmittal, provided that (a) a duplicate copy of the notice is promptly delivered by first-class or certified mail or by overnight delivery, or (b) a transmission report is generated reflecting the accurate transmission thereof. Any notice given by facsimile shall be considered to have been received on the next business day if it is received after 5:00 p.m. recipient's time or on a nonbusiness day. City: Public Safety Director City of Ukiah 300 Seminary Avenue Ukiah, CA 95482 Telephone: (707) 463-6263 Facsimile: (707) 462-6068 Consultant: Andrea P. McCullough M.D. 295 San Jacinta Dr. Ukiah, CA 95482 Telephone: (707)-205-7797 20. Ownership of Documents. All original papers, documents or computer material on disk or microfilm, and copies thereof, produced as a result of this Agreement, shall be the property of City and may not be used by Consultant without the written consent of City. Copies of such documents or papers shall not be disclosed to others without the written consent of the City Manager or his or her designated representative. PROFESSIONAL SERVICES AGREEMENT April 2009 21. Indemnification. Consultant shall indemnify, defend with counsel acceptable to City, and hold harmless City and its officers, officials, employees, agents and volunteers from and against any and all liability, loss, damage, claims, expenses, and costs (including, without limitation, attorney's fees and costs and fees of litigation) (collectively, "Liability") of every nature arising out of or in connection with Consultant's performance of the Services or its failure to comply with any of its obligations contained in this Agreement, except such Liability caused by the sole negligence or willful misconduct of City. Notwithstanding anything to the contrary in this provision, Consultant shall not be liable for, and City shall indemnify and hold Consultant harmless from and against any and all liability, loss, damage, claims, expenses, and costs (including, without limitation, attorney's fees and costs and fees of litigation (collectively "Liabilities") of every nature arising out of or in connection with the ordering, use, prescription, or administration by City, or its officials and employees, of drugs obtained with Consultant's assistance and/or under the authority of Consultant's medical license. The City shall name the Consultant as an additional insured for $1 Million Dollars ($1,000,000.00) on its General Liability Coverage Program. Claims to which the coverage will apply only include claims subject to the City's obligations in this paragraph 21 to indemnify the Consultant; that is, claims arising out of or in connection with the ordering, use, prescription, or administration by City, or its officials and employees, of drugs obtained with Consultant's assistance and/or under the authority of Consultant's medical license. 22. Amendment. This Agreement may be amended only by a written instrument executed by both Parties. 23. Litigation. If litigation ensues which pertains to the subject matter of Consultant's services hereunder, Consultant, upon request from City, agrees to testify therein at a reasonable and customary fee, unless such testimony is required in defense of a claim against which the Consultant has agreed to indemnify the City, in which case the Consultant agrees to testify and in all other ways to reasonably cooperate in the defense at no cost to the City. 24. Construction. This Agreement is the product of negotiation and compromise on the part of both Parties and that the Parties agree that, notwithstanding Civil Code section 1654, any uncertainty in the Agreement shall not be construed against the drafter of the Agreement. 25. Governing Law; Venue. This Agreement shall be enforced and interpreted under the laws of the State of California and the City of Ukiah. Any action arising from or brought in connection with this Agreement shall be venued in a court of competent jurisdiction in the County of Mendocino, State of California. PROFESSIONAL SERVICES AGREEMENT April 2009 26. Non -Waiver. The City's failure to enforce any provision of this Agreement or the waiver thereof in a particular instance shall not be construed as a general waiver of any part of such provision. The provision shall remain in full force and effect. 27. Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 28. No Third Party Beneficiaries. The Parties do not intend to create, and nothing in this Agreement shall be construed to create any benefit or right in any third party. 29. Mediation. The Parties agree to make a good faith attempt to resolve any dispute arising out of this Agreement through mediation prior to commencing litigation. The Parties shall mutually agree upon the mediator and shall divide the costs of mediation equally. 30. Consultant's Books and Records. A. Consultant shall maintain any and all ledgers, books of accounts, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services, or expenditures and disbursements charged to.the City for a minimum period of three (3) years or for any longer period required by law, from the date of final payment to Consultant pursuant to this Agreement. B. Consultant shall maintain all documents and records which demonstrate performance under this Agreement for a minimum period of three (3) years or for any longer period required by law, from the date of termination or completion of this Agreement. C. Any records or documents required to be maintained pursuant to this Agreement shall be made available for inspection or audit, at any time during regular business hours, upon written request by the City Manager, City Attorney, City Finance Director, or a designated representative of these officers. Copies of such documents shall be provided to the City for inspection at Ukiah Civic Center when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall be available at Consultant's address indicated for receipt of notices in this Agreement. D. Where City has reason to believe that such records or documents may be lost or discarded due to dissolution, disbandment or termination of Consultant's business, City may, by written request by any of the above-named officers, require that custody of the records be given to the City and that the records and documents be maintained in Ukiah Civic Center. Access to such records and documents shall be granted to any party authorized by Consultant, Consultant's representatives, or Consultant's successor in interest. 31. Headings. The headings used in this Agreement are for convenience only and are not intended to affect the interpretation or construction of any provisions herein. PROFESSIONAL SERVICES AGREEMENT April 2009 32. Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Consultant shall survive the termination of this Agreement. 33. Entire Agreement. This Agreement, including the exhibits attached hereto and incorporated herein, constitutes the entire agreement between the Parties with respect to the Services, and supersedes all prior agreements or understandings, oral or written, between the Parties in this regard. IN WITNESS WHEREOF, the parties hereto have executed this document the day, month and year first above written. CITY OF UKIAH CONSULTANT .. By City Mau er Name City APPROVED AS TO City mey a Title ag5- c� Address city State Zip --�o 3 Taxpayer I.D. Number C 0 -0 f -,j) Ukiah Bus' s License CS -("/18169 PROFESSIONAL SERVICES AGREEMENT April 2009 EXHIBIT A SCOPE OF SERVICES • Providing medical direction for the ordering and dispensing of controlled substances handled by the Ukiah Fire Department personnel • Providing assistance, when requested, in such areas as infectious disease exposure control, HIPAA laws, protocol and legislation changes, and patient care report requirements. • Providing assistance, when requested, with continuing education in such areas as advanced life support training. s PROFESSIONAL SERVICES AGREEMENT April 2009