HomeMy WebLinkAboutMilligan, Patti; 2020-03-04;AGREEMENT FOR TRAINING AND DEVELOPMENT SERVICES
PATTI MILLIGAN
THIS AGR EMENT is made and entered into as of the L/1/1 day of
---"-"--f~,L>,.,,a--......_ ___ , 2020, by and between the CITY OF CARLSBAD, a municipal
, ("City"), and Patti Milligan, ("Contractor").
RECITALS
A. City requires the professional services of a wellness and nutrition consultant that
is experienced in training employees in personal resilience and performance.
B. Contractor has the necessary experience in providing professional services and
advice related to wellness and nutrition.
C. Contractor has submitted a proposal to City and has affirmed its willingness and
ability to perform such work.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, City and Contractor agree as follows:
1. SCOPE OF WORK
City retains Contractor to perform, and Contractor agrees to render, those services (the
"Services") that are defined in attached Exhibit "A", which is incorporated by this reference in
accordance with this Agreement's terms and conditions.
2. STANDARD OF PERFORMANCE
While performing the Services, Contractor will exercise the reasonable professional care and skill
customarily exercised by reputable members of Contractor's profession practicing in the
Metropolitan Southern California Area, and will use reasonable diligence and best judgment while
exercising its professional skill and expertise.
3. TERM
The term of this Agreement will be effective for a period of five years from the date first above
written.
4. TIME IS OF THE ESSENCE
Time is of the essence for each and every provision of this Agreement.
5. COMPENSATION
The total fee payable for the Services to be performed during the initial Agreement term will be in
an amount not to exceed thirty-five thousand dollars ($35,000) per Agreement year. No other
compensation for the Services will be allowed except for items covered by subsequent
amendments to this Agreement. The City reserves the right to withhold a ten percent (10%)
retention until City has accepted the work and/or Services specified in Exhibit "A".
Incremental payments, if applicable, should be made as outlined in attached Exhibit "A".
6. STATUS OF CONTRACTOR
Contractor will perform the Services in Contractor's own way as an independent contractor and
in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be
under control of City only as to the result to be accomplished, but will consult with City as
necessary. The persons used by Contractor to provide services under this Agreement will not be
considered employees of City for any purposes.
City Attorney Approved Version 6/12/18
The payment made to Contractor pursuant to the Agreement will be the full and complete
compensation to which Contractor is entitled. City will not make any federal or state tax
withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be
required to pay any workers' compensation insurance or unemployment contributions on behalf
of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty
(30) days for any tax, retirement contribution, social security, overtime payment, unemployment
payment or workers' compensation payment which City may be required to make on behalf of
Contractor or any agent, employee, or subcontractor of Contractor for work done under this
Agreement. At the City's election, City may deduct the indemnification amount from any balance
owing to Contractor.
7. SUBCONTRACTING
Contractor will not subcontract any portion of the Services without prior written approval of City.
If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the
acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly
employed by the subcontractor, as Contractor is for the acts and omissions of persons directly
employed by Contractor. Nothing contained in this Agreement will create any contractual
relationship between any subcontractor of Contractor and City. Contractor will be responsible for
payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of
a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically
noted to the contrary in the subcontract and approved in writing by City.
8. OTHER CONTRACTORS
The City reserves the right to employ other Contractors in connection with the Services.
9. INDEMNIFICATION
Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees
and volunteers from and against all claims, damages, losses and expenses including attorneys
fees arising out of the performance of the work described herein caused by any negligence,
recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or
indirectly employed by any of them or anyone for whose acts any of them may be liable.
The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or
makes to or on behalf of an injured employee under the City's self-administered workers'
compensation is included as a loss, expense or cost for the purposes of this section, and that this
section will survive the expiration or early termination of this Agreement.
10. INSURANCE
Contractor will obtain and maintain for the duration of the Agreement and any and all
amendments, insurance against claims for injuries to persons or damage to property which may
arise out of or in connection with performance of the services by Contractor or Contractor's
agents, representatives, employees or subcontractors. The insurance will be obtained from an
insurance carrier admitted and authorized to do business in the State of California. The insurance
carrier is required to have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus
line insurer on the State of California's List of Approved Surplus Line Insurers (LASLI) with a rating
in the latest Best's Key Rating Guide of at least "A:X"; OR an alien non-admitted insurer listed by
the National Association of Insurance Commissioners (NAIC) latest quarterly listings report.
10.1 Coverage and Limits.
Contractor will maintain the types of coverage and minimum limits indicated below, unless the
Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage
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will not constitute any limitations or cap on Contractor's indemnification obligations under this
Agreement. City, its officers, agents and employees make no representation that the limits of the
insurance specified to be carried by Contractor pursuant to this Agreement are adequate to
protect Contractor. If Contractor believes that any required insurance coverage is inadequate,
Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at
Contractor's sole expense. The full limits available to the named insured shall also be available
and applicable to the City as an additional insured.
10.1.1 Commercial General Liability (CGL) Insurance. Insurance written on an
"occurrence" basis, including personal & advertising injury, with limits no less than $2,000,000 per
occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply
separately to this project/location or the general aggregate limit shall be twice the required
occurrence limit. (Waived. See attached waiver request form.)
10.1.2 Automobile Liability. (if the use of an automobile is involved for Contractor's work
for City). $2,000,000 combined single-limit per accident for bodily injury and property damage.
(Waived. See attached waiver request form.)
10.1. 3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as
required by the California Labor Code. Workers' Compensation will not be required if Contractor
has no employees and provides, to City's satisfaction, a declaration stating this. (Waived. See
attached waiver request form.)
10.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor's
profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a
period of five years following the date of completion of the work.
10.2 Additional Provisions. Contractor will ensure that the policies of insurance required under
this Agreement contain, or are endorsed to contain, the following provisions:
10.2.1 The City will be named as an additional insured on Commercial General Liability
which shall provide primary coverage to the City.
10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which
will be written as claims-made coverage.
10.2.3 This insurance will be in force during the life of the Agreement and any extensions
of it and will not be canceled without thirty (30) days prior written notice to City sent by certified
mail pursuant to the Notice provisions of this Agreement.
10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this
Agreement, Contractor will furnish certificates of insurance and endorsements to City.
10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance
coverages, then City will have the option to declare Contractor in breach, or may purchase
replacement insurance or pay the premiums that are due on existing policies in order to maintain
the required coverages. Contractor is responsible for any payments made by City to obtain or
maintain insurance and City may collect these payments from Contractor or deduct the amount
paid from any sums due Contractor under this Agreement.
10.5 Submission of Insurance Policies. City reserves the right to require, at any time, complete
and certified copies of any or all required insurance policies and endorsements.
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11. BUSINESS LICENSE
Contractor will obtain and maintain a City of Carlsbad Business License for the term of the
Agreement, as may be amended from time-to-time.
12. ACCOUNTING RECORDS
Contractor will maintain complete and accurate records with respect to costs incurred under this
Agreement. All records will be clearly identifiable. Contractor will allow a representative of City
during normal business hours to examine, audit, and make transcripts or copies of records and
any other documents created pursuant to this Agreement. Contractor will allow inspection of all
work, data, documents, proceedings, and activities related to the Agreement for a period of three
(3) years from the date of final payment under this Agreement.
13. OWNERSHIP OF DOCUMENTS
All work product produced by Contractor or its agents, employees, and subcontractors pursuant
to this Agreement is the property of City. In the event this Agreement is terminated, all work
product produced by Contractor or its agents, employees and subcontractors pursuant to this
Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy
of the work product for Contractor's records.
14. COPYRIGHTS
Contractor agrees that all copyrights that arise from the services will be vested in City and
Contractor relinquishes all claims to the copyrights in favor of City.
15. NOTICES
The name of the persons who are authorized to give written notice or to receive written notice on
behalf of City and on behalf of Contractor under this Agreement.
For City
Name Darrin Schwabe
Title HR Manager
Department Human Resources
City of Carlsbad
Address 1635 Faraday Ave
Carlsbad CA 92008
Phone No. 760-271-5548
For Contractor
Name Patti Milligan PhD, RD, CNS
Title Regenerative & Wellness Nutritionist
Address 15015 North Owl Ct
Fountain Hills AZ 85268
Phone No. 480-209-4104
Email milliganpatti@gmail.com
Each party will notify the other immediately of any changes of address that would require any
notice or delivery to be directed to another address.
16. CONFLICT OF INTEREST
Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the
requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report
investments or interests in all categories.
YesD No lxJ
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17. GENERAL COMPLIANCE WITH LAWS
Contractor will keep fully informed of federal, state and local laws and ordinances and regulations
which in any manner affect those employed by Contractor, or in any way affect the performance
of the Services by Contractor. Contractor will at all times observe and comply with these laws,
ordinances, and regulations and will be responsible for the compliance of Contractor's services
with all applicable laws, ordinances and regulations.
Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986
and will comply with those requirements, including, but not limited to, verifying the eligibility for
employment of all agents, employees, subcontractors and consultants whose services are
required by this Agreement.
18. DISCRIMINATION AND HARASSMENT PROHIBITED
Contractor will comply with all applicable local, state and federal laws and regulations prohibiting
discrimination and harassment.
19. DISPUTE RESOLUTION
If a dispute should arise regarding the performance of the Services the following procedure will
be used to resolve any questions of fact or interpretation not otherwise settled by agreement
between the parties. Representatives of Contractor or City will reduce such questions, and their
respective views, to writing. A copy of such documented dispute will be forwarded to both parties
involved along with recommended methods of resolution, which would be of benefit to both
parties. The representative receiving the letter will reply to the letter along with a recommended
method of resolution within ten ( 10) business days. If the resolution thus obtained is unsatisfactory
to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The
City Manager will consider the facts and solutions recommended by each party and may then opt
to direct a solution to the problem. In such cases, the action of the City Manager will be binding
upon the parties involved, although nothing in this procedure will prohibit the parties from seeking
remedies available to them at law.
20. TERMINATION
In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may
terminate this Agreement for nonperformance by notifying Contractor by certified mail of the
termination. If City decides to abandon or indefinitely postpone the work or services contemplated
by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon
notification of termination, Contractor has five (5) business days to deliver any documents owned
by City and all work in progress to City address contained in this Agreement. City will make a
determination of fact based upon the work product delivered to City and of the percentage of work
that Contractor has performed which is usable and of worth to City in having the Agreement
completed. Based upon that finding City will determine the final payment of the Agreement.
Either party upon tendering thirty (30) days written notice to the other party may terminate this
Agreement. In this event and upon request of City, Contractor will assemble the work product and
put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work
performed to the termination date; however, the total will not exceed the lump sum fee payable
under this Agreement. City will make the final determination as to the portions of tasks completed
and the compensation to be made.
21. COVENANTS AGAINST CONTINGENT FEES
Contractor warrants that Contractor has not employed or retained any company or person, other
than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that
Contractor has not paid or agreed to pay any company or person, other than a bona fide
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employee, any fee, commIssIon, percentage, brokerage fee, gift, or any other consideration
contingent upon, or resulting from, the award or making of this Agreement. For breach or violation
of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion,
to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the
fee, commission, percentage, brokerage fees, gift, or contingent fee.
22. CLAIMS AND LAWSUITS
By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must
be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation
of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is
submitted to City, it may be considered fraud and Contractor may be subject to criminal
prosecution. Contractor acknowledges that California Government Code sections 12650 et seq.,
the False Claims Act applies to this Agreement and, provides for civil penalties where a person
knowingly submits a false claim to a public entity. These provisions include false claims made
with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of
information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to
recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a
false claim may subject Contractor to an administrative debarment proceeding as the result of
which Contractor may be prevented to act as a Contractor on any public work or improvement for
a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is
grounds for City to terminate this Agreement.
23. JURISDICTION AND VENUE
Any action at law or in equity brought by either of the parties for the purpose of enforcing a right
or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the
County of San Diego, State of California, and the parties waive all provisions of law providing for
a change of venue in these proceedings to any other county.
24. SUCCESSORS AND ASSIGNS
It is mutually understood and agreed that this Agreement will be binding upon City and Contractor
and their respective successors. Neither this Agreement nor any part of it nor any monies due or
to become due under it may be assigned by Contractor without the prior consent of City, which
shall not be unreasonably withheld.
25. ENTIRE AGREEMENT
This Agreement, together with any other written document referred to or contemplated by it, along
with the purchase order for this Agreement and its provisions, embody the entire Agreement and
understanding between the parties relating to the subject matter of it. In case of conflict, the terms
of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions
may be amended, modified, waived or discharged except in a writing signed by both parties.
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26. AUTHORITY
The individuals executing this Agreement and the instruments referenced in it on behalf of
Contractor each represent and warrant that they have the legal power, right and actual authority
to bind Contractor to the terms and conditions of this Agreement.
CONTRACTOR
By:
Patti T Milligan/Regenerative & Wellness
Nutritionist
(print name/title)
By:
(sign here)
(print name/title)
CITY OF CARLSBAD, a municipal
corporation of the State of California
ATTEST:
. \ Ja ,vna ¼A_/2. 7tlutL,w.__-l
BARBARA ENGLESON
rtyClerk
If required by City, proper notarial acknowledgment of execution by contractor must be attached.
If a corporation, Agreement must be signed by one corporate officer from each of the following
two groups.
Group A
Chairman,
President, or
Vice-President
Group B
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
CELIA A. BREWER, City Attorney
BY: Otn,dd2 I< /L/l/u/iift4u21z/
Assistant City Attorney
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EXHIBIT "A"
SCOPE OF SERVICES
Develop curriculum for and deliver on-site employee development training/seminars in the areas
of wellness and resilience.
Examples of training/seminar topics:
• Fight Fatigue/Understanding what we do in diet and lifestyle to zap our energy and make
our body/brain feel fatigued
• Be a food sleuth and decode the body's messages as to what foods your body desires to
be fully present, reduce stress and bring about better sleep
• Bringing your Brain fully activated to work//Understanding how to get the full brain to
perform including focus, concentration, creativity and innovation skills
Training (the rates below include all expenses related to development and delivery of training,
including materials, printing/copying and food for foodlabs).
$3,000 Half day (up to 4 hours)
$5,500 Full day (over 4 hours and up to 8 hours)
City will not reimburse Contractor or pay for any costs related to Contractor's travel or lodging.
During the term of this Agreement the cost for training may increase by an amount not to
exceed 3% per agreement year. If the cost is going to increase, Contractor shall send City
notice of the cost increase at least 60 calendar days prior to the start of training session.
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WAIVER REQUEST FORM
FACTORS IN SUPPORT OF REQUEST TO MODIFY INSURANCE REQUIREMENT(S)
Generally, a modification to the coverage requirement will be accepting a lower limit of coverage or waiving the
requirement(s).
Requested by: Debbie Porter, Human Resources 2/18/20
(Name and Department) (Date)
Proposed modification(s) to the GL, Auto & Work. Comp
(Type of insurance)
requirement(s) for _P_att_i_M_ill....cig_an __________ _
D Reduce coverage to the amount of: =--------
[j] Waive coverage
D Other:
FACTOR(S) IN SUPPORT OF MODIFICATION(S)
(check those that apply)
(Name of contract)
□Significance of Contractor: Contractor has previous experience with the City that is important to the
efficiency of completing the scope of work and the quality of the work-product. [explain] _______ _
□Significance of Contractor: Contractor has unique skills and there are few if any alternatives. [explain:
include number of candidates RFP sent to and number responded ff applicable}
□Contract Amount/Term of Contract: $ _______ . Work will be completed over a period of __ _
□Professional Liability coverage is not available to this contractor or would increase the cost of the contract by
$ [explain}.
[i]Other (e.g. explain why exposures are minimal, how exposures are covered in another policy, exposure
control mechanisms, and any other information pertinent to your request): Contractor will only be providing training on
the subject of wellness and nutrition. Minimal exposure/risk for these types of insurance. Contractor is a sole proprietor and has her own auto insurance.
Approved by Risk Manager for this contract only: ')_-/ j-2,D
(Signature) (Date)
H \WORD\lnsurance\Admin Order #68.doc
06/15/2006 27
Healthcare Professional Liability
Liberty ---~-
1ntr-rn.:tth ITT.11
U1idtTwritcn ..
LIBERTY INSURANCE UNDERWRITERS INC.
(A Stock Insurance Company, hereinafter the "Company")
55 Water Street, 18th Floor
New York, NY 10041
DECLARATIONS
Policy Number: AHY-520409009 Renewal Of: AHY-520409008
SECTION I
Item
I.
2.
Named Insured: Patti T Milligan
Mailing Address: 15015 North Owl Court
Fountain Hills, AZ 85268
3.
4.
Policy Period: From: 11/18/2019 To: 11/18/2020
12:01 A. M. Standard Time At Location of Designated Premises
Business or Profession: Affiliation: 3143-Academy
Dietitian
5. The Named Insured is a(n): Orartnership D Corporation [XI Individual D LLC
Dsole Proprietor (with employees} D Professional Association D Other
This policy is made and accepted subject to the printed conditions of this policy together with the provisions, stipulations
and agreements contained in the following form(s) or endorsements(s): HCPL-2037i (01/14), HCPL-2038 ( 11/09), HCPL-8101A (04/14)
HCPL-2037-9000-AZ ( 11/09)
OFAC (08/09),
HCPL-8320 (01/15), HCPL-8321 (01/15), HCPL-8324 (01/15), HCPL-8328 (02/15)
SECTION II
Item
A.
B.
C.
SECTION III
COVERAGE
Professional Liability [ X]
General Liability [ ]
Terrorism Risk Insurance Act [ ]
Endorsements [ ]
LIMITS OF LIABILITY
$1,000,000 Each Incident and Each Occurrence
SUPPLEMENTARY PAYMENTS
A.
B.
C.
D.
E.
First Party Assault
Licensing Board Reimbursement
Wage Loss and Expense
Deposition Expense
First Aid Reimbursement
Representative Agent: Mercer Consumer, a service of
Mi 1 I
HCPL-2037D (11/09)
Mercer Health & Benefits Administration LLC
P.O. Box 14576
Des Moines, IA 50306-3576
Premium
$124.00
TOTAL: $124.00
$5,000,000 Aggregate
Cl ia,t # 903805
MEMORANDUM OF INSURANCE ate Issued 10/08/2019
[Producer This memorandum is issued as a matter of information
only and confers no rights upon the holder. This
MerCEJ Consumer, aoorviceof tmemorandum does not amend, extend or alter--4@ -Merw Health & BenefitsAdminis:ration LLC K,;overages afforded by the Certificate listed below.
P.O. Box 14576
Des Moines, IA 50306-3576
1-800-503-9230 K:ompany Affording Coverage
Insured Liberty lnrurance Underwriters Inc.
Patti T Milliga,
15015 North Ovvl Court
Fountain Hills, AZ 85268
This is to certify that the Certificate listed below has been issued to the insured named above for the policy period indicated, not
withstanding any requirement, term or condition of any contract or other document with respect to which this memorandum may be
issued or may pertain, the insurance afforded by the Certificate described herein is subject to all the terms, exclusions and conditions of
such Certificate. The limits shown may have been reduced by paid claims.
The Memorandum of Insurance and verification of payment are your evidence of coverage. No coverage is afforded unless the premium
is successfully paid in full.
Type of Insurance Certificate Number Effective Date Expiration Date Limits
Professional Liability A HY -520409009 11/18/2019 11/18/2020 Der Incident/ $1,000,000 DietetnNutr SE Occurrence
Dietitia,
!Annual Aggregate $5,000,000
fROOFOFINSURANCE
Memorandum Holder: Should the above describe Certificate be cancelled
PROOF OF COVERAGE ONLY before the expiration date thereof, the issuing company
~ill endeavor to mail 30 days written notice to the
Memorandum Holder named to the left, but failure tc
mail such notice shall impose no obligation or liability
of any kind upon the company, its agents or
representatives.
Authorized Representative
Mark Bros:owitz
~~. ~
Ma-ca-Conru1Tl0", aSEJviceof Ma-ca-Health & BenefitsAdminisniion LLC. In CA d/b/a Ma-ca-Health & Benefits lnruranceServices LLC. CA Licenoo#OG39709