CONSULTING AGREEMENT

CONSULTING AGREEMENT

THIS CONSULTING AGREEMENT (this “Agreement”) is made and entered into by and between CHILDREN’S HEALTHCARE OF ATLANTA, INC., a Georgia nonprofit corporation, (hereinafter referred to as “Children’s”) and Positive Psychology Coaching and Diversity Institute, Inc. (hereinafter referred to as “Consultant”).

WITNESSETH

WHEREAS, Children’s is an acute care pediatric health care provider located in Atlanta, Georgia; and

WHEREAS, Children’s desires to have the services of a consultant with experience in leadership coaching; and

WHEREAS, Consultant has expertise in leadership coaching and is willing to provide consulting services to Children’s; and

WHEREAS, Consultant shall work with Children’s to provide monthly coaching services for select participants in a Leadership Development Program; and

WHEREAS, it is the intent of the parties to reduce the understanding and contractual relationship regarding the provision of such services to writing;

NOW, THEREFORE, in consideration of the mutual covenants contained herein, the receipt and sufficiency of which being hereby acknowledged, Children’s and Consultant hereby agree as follows:

1. OBLIGATIONS OF CONSULTANT
2. Consultant’s obligations are more fully set out on Consultant’s proposal attached hereto and incorporated herein by reference as Exhibit A.  Consultant agrees to undertake and complete the services as set forth in Exhibit A in accordance with and on the schedule and at the facility(ies) specified therein.
3.  In performing services pursuant to this Agreement, Consultant covenants and agrees that Consultant and individuals performing services for and on behalf of Consultant:
4. Shall maintain professional licenses, permits, registrations and accreditations, if any, in good standing throughout the term of this Agreement and shall provide evidence of such licenses, permits, registrations and accreditations upon request by Children’s;
5. Shall comply with Children’s policy to maintain a drug free work place and further acknowledges that use of illegal drugs and/or misuse of legally obtained prescription drugs may result, at Children’s sole discretion, in the immediate termination of this Agreement;
6. Certifies and attests that no assigned personnel has been convicted of a felony, a crime of moral turpitude or a crime related to physical or sexual abuse of children;
7. Shall comply with Children’s requirements regarding health screening including, but not limited to, negative PPD tuberculin skin test within the past twelve (12) months, immunity to measles, mumps and rubella (MMR), chickenpox and Hepatitis B or waiver thereof;
8. Shall comply with the standards of Consultant’s profession when rendering services pursuant to this Agreement; and,
9. Shall comply with Children’s non-smoking policy.
10. Consultant shall devote such time, attention and energy to the performance of services as set forth herein and as may be requested by Children’s, but in no event no less than the amount of time specified in Exhibit A.
11. Consultant shall prepare and provide a written report to Children’s on a monthly basis describing the progress of the activities performed pursuant to this Agreement.
12. Consultant shall comply with applicable Children’s policies and procedures, all applicable federal, state and local statutes, rules, regulations and ordinances, and the standards of The Joint Commission (“TJC”), as well as any other standards and regulations pertaining to the services provided pursuant to this Agreement.
13. Consultant IS NOT related to a physician on Children’s medical staff.
14. Consultant represents and warrants that (i) Consultant has no obligations, legal or otherwise, inconsistent with the terms of this Agreement or with Consultant’s undertaking this relationship with Children’s; (ii) the performance of the services called for by this Agreement do not and will not violate any applicable law, rule or regulation or any proprietary or other right of any third party; (iii) Consultant will not use in the performance of its responsibilities under this Agreement any confidential information or trade secrets of any other person or entity; (iv) Consultant has not entered into and will not enter into any agreement, whether oral or written, in conflict with this Agreement; and (v) the services will be performed in a professional and workmanlike manner.
15. OBLIGATIONS OF CHILDREN’S
16. Children’s shall provide space, equipment and supplies for Consultant, if work is performed on Children’s premises.

• Children’s shall provide necessary information to Consultant to include information on: Leadership Development Assessments.

• Children’s shall compensate Consultant for services provided under the terms and conditions of this Agreement as set forth in Section V, below.
• OWNERSHIP RIGHTS; PROPRIETARY INFORMATION; PUBLICITY
• Consultant recognizes and acknowledges that Children’s possesses certain confidential information that constitutes a valuable, special and unique asset.  As used herein, the term “confidential information” includes all information and materials belonging to, used by, or in the possession of Children’s relating to its products, processes, services, technology, inventions, patients, ideas, contracts, financial information, developments, business strategies, pricing, current and prospective customers, marketing plan and trade secrets of every kind and character, but shall not include (i) information that was already within the public domain at the time the information is acquired by Consultant, or (ii) information that subsequently becomes public through no act or omission of Consultant.  Consultant agrees that all confidential information is and shall continue to be the exclusive property of Children’s whether or not prepared in whole or in part by Consultant and whether or not disclosed to or entrusted to Consultant’s custody.  Consultant agrees that Consultant shall not, at any time during the term of this Agreement and for five (5) years after the termination or expiration of this Agreement, use or disclose in any manner any confidential information of Children’s.
• To the extent any patentable or copyrightable ideas, inventions, technologies, reports, memoranda, studies, writings, articles, plans, designs, specifications, exhibits, software code (together with any related documentation source code or object codes, upgrades, revisions, modifications or any related materials) or other materials are prepared by Consultant in the performance of services under this Agreement  and such materials have been specially commissioned by Children’s, they shall be deemed “work for hire” as such term is defined under U.S. copyright law.  To the extent any such materials do not qualify as “work for hire” under applicable law, and to the extent they include material subject to copyright, patent, trade secret or other proprietary rights protection, Consultant hereby irrevocably and exclusively assigns to Children’s, its successors and assigns, all right, title and interest in and to all such materials.  To the extent any of Consultant’s rights in the same, including without limitation any moral rights, are not subject to assignment hereunder, Consultant hereby irrevocably and unconditionally waives all enforcement of such rights.  Consultant shall execute and deliver such instruments and take such other actions as may be required to carry out and confirm the assignments contemplated by this paragraph and the remainder of this Agreement.  All documents, magnetically or optically encoded media, and other tangible materials created by Consultant as part of its services under this Agreement shall be owned by Children’s.
• Consultant agrees that upon termination or expiration of this Agreement, Consultant will return to Children’s all drawings, blueprints, notes, memoranda, specifications, designs, writings, software, devices, documents and any other materials containing or disclosing any confidential or proprietary information of Children’s.  Consultant shall not retain any such materials.
• The parties hereto agree that, in the event of breach or threatened breach of this Agreement, the damage or imminent damage to the value and the goodwill of the Children’s business will be inestimable, and that therefore any remedy at law or in damages shall be inadequate.  Accordingly, the parties hereto agree that Children’s shall be entitled to injunctive relief against Consultant in the event of any breach or threatened breach by Consultant, in addition to any other relief (including damages and the right of Children’s to stop payments hereunder which is hereby granted) available to Children’s under this Agreement or under law.
• HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (“HIPAA”)

It is not anticipated that Consultant and/or Consultant’s employees, agents or contractors shall have access to patient protected health information (“PHI”) Notwithstanding anything in this Agreement to the contrary, Consultant is aware of and shall comply with HIPAA in its dealings with Children’s under this Agreement.  Should the scope of Consultant’s work change during the course of this Agreement, which would require Consultant’s employees, agents or contractors to have access to PHI, Consultant shall immediately notify Children’s and the parties shall execute a Business Associate Agreement.

• COMPENSATION
• Compensation is based on the fair market value of services provided to Children’s and is not tied to the value or volume of referrals or other business generated between the parties.
• In consideration of the services to be performed by Consultant, Children’s agrees to pay Consultant in the manner and at the rates set forth in Exhibit B attached hereto and incorporated herein by reference.
• Out of pocket expenses incurred by Consultant and authorized by Children’s, in advance and in writing, shall be reimbursed by Children’s to Consultant within thirty (30) days of receipt of an invoice and documentation in support of such expenses.  All expenses shall be consistent with Children’s business travel and expense policy.
• WARRANTY
• Consultant warrants services provided under this Agreement shall be performed in a professional manner and that Consultant shall re-perform any work not in compliance with this warranty, when requested, by Children’s, within three (3) business days following the date on which the work was originally performed.
• Consultant warrants that it is not on any of the four (4) government watch lists, which includes the HHS OIG List of Excluded Individuals and Entities (LEIE), the United States General Service Administration list of parties excluded from Federal Procurement & Non-procurement Programs (EPLS), the Office of Foreign Assets Control Specially Designated Nationals (SDN) list, and the U.S.  Food and Drug Administration (FDA) debarment list, and is not on any individual state exclusion list.  Consultant also warrants that on a monthly basis it queries its officers and directors, and its employees, agents and subcontractors providing goods or services under this Agreement, against the above lists to ensure that none appear on such list.  Consultant will not at any time permit a person or entity that is excluded from such participation to perform any services under this Agreement and will notify Children’s immediately if it becomes aware that it, its officers or directors, or its employees, agents or subcontractors providing goods or services under this Agreement, have been added to one of the above lists.
• INDEPENDENT CONTRACTOR STATUS
• It is mutually understood and agreed that in providing services pursuant to this Agreement,  Consultant is acting as an independent contractor and is at all times performing such services as an independent contractor and not as an agent or employee of Children’s.  Nothing contained in this Agreement is intended nor shall be construed to create an employer/employee relationship or to allow Children’s  to exercise any control or direction, nor shall Children’s have the right to exercise any control or direction, over the methods or manner in which Consultant performs the services required under this Agreement.
• Consultant shall not be entitled to employee benefits including salary, vacation pay, sick leave, retirement benefits, social security, workers’ compensation, disability or unemployment insurance benefits that may be provided to Children’s employees.  Children’s shall not be responsible for withholding income or other taxes from any income, social security or other tax levied upon or determined with respect to the payments made to Consultant pursuant to this Agreement.  Consultant shall indemnify Children’s against any and all claims arising with respect to such payments, withholdings and benefits, if any.  This provision shall survive the termination or expiration of this Agreement.
• Insomuch as Consultant is an independent contractor, Consultant shall not have the authority to bind Children’s to any third person or otherwise to act in any way as the representative of Children’s unless expressly agreed to in writing and signed by Consultant and Children’s.
• INDEMNIFICATION

Consultant agrees to defend, indemnify and hold harmless Children’s, as well as Children’s officers, directors and employees, together with their successors and assigns from any claim, damage, loss, expense, liability, obligation, action or cause of action (including reasonable attorney fees) which Children’s, as well as its officers, directors and employees may or might sustain, pay or suffer, by reason of any act, omission or negligence of Consultant its agents, employees, representatives or those acting on its behalf.  Notwithstanding the foregoing, Children’s reserves the right to choose legal counsel to represent Children’s for any purpose including investigation and/or litigation of any claim, or potential claim, made against Children’s.  This provision shall survive the termination or expiration of this Agreement.

1. TERM AND TERMINATION
2. Unless sooner terminated as set forth herein, this Agreement shall be for a period of one year commencing on March 1, 2022  and may be renewed thereafter, by mutual agreement of the parties, evidenced in writing and signed by authorized representatives of the parties.
3. Subject to sub-clause C below, this Agreement and all rights and liabilities created hereunder may be terminated as follows:

1. By Children’s, immediately, upon the occurrence of any of the following:

1. Any conduct of Consultant which, in the determination of Children’s, jeopardizes the health, safety or welfare of any person, or the safety, reputation or regular functions of Children’s; or
2. Consultant’s failure to maintain required licenses, permits, registrations and accreditations; or
3. Consultant’s conviction of any crime; or
4. Consultant’s debarment, sanction, preclusion or other exclusion from participation in the Medicare or Medicaid program or any other federal health program.

2. By either party upon ten (10) days prior written notice to the other party of a breach of any term of this Agreement other than those listed in Section X.B.1., above.  If such breach is not remedied within ten (10) days from the date of notification of the same, the non-breaching party shall have the right to terminate this Agreement immediately.

3. By either party, without cause, upon thirty (30) days’ prior written notice to the other party of such intent to terminate this Agreement.

• Termination of this Agreement will not discharge Children’s from any liability accrued and owed to the Consultant pursuant to Clause V above, prior to the termination of this Agreement by either Party.
• NONSOLICITATION/NONCOMPETITION
• Notwithstanding any other provision of this Agreement, for a period of one (1) year following the termination or expiration of this Agreement, Consultant shall not solicit for employment, or advise or recommend to any other person that such other person solicit for employment, any person employed or under contract (whether as a consultant, employee or otherwise) by or to Children’s without the prior written consent of Children’s.  This provision shall not be construed or interpreted to interfere with the rights of any individual in response to a publicly placed advertisement or job opportunity.
• Notwithstanding any other provision of this Agreement, and to the fullest extent permitted by law, for a period of one (1) year following the termination or expiration of this Agreement, Consultant shall not solicit any clients or customers of Children’s that Consultant learned of or had material contact with in performing services under this Agreement
• GENERAL PROVISIONS
• Governmental Access to Books and Records. From the effective date until the expiration of four (4) years after the furnishing of services under this Agreement, Consultant shall, to the extent required by Section 952 of the Omnibus Reconciliation Act of 1980 and regulations promulgated thereunder, make available to the Secretary United States Department of Health and Human Services, the Comptroller General of the United States, and the duly authorized representatives of the foregoing, this Agreement, and all books and records of Consultant that are necessary to verify the nature and extent of the costs of services rendered.  If Consultant provides services through a subcontract worth Ten Thousand Dollars ($10,000) or more over a twelve (12) month period with an organization related to Consultant within the meaning of subpart D of 42 C.F.R. Part 420, the subcontract shall also contain a clause permitting access by the Secretary, Comptroller General and their duly authorized representatives to books and records of such related organization.
• Renegotiation. If Children’s determines that any provision of this Agreement becomes violative of the rules, regulations or reimbursement policies of any third party reimbursement program, any federal or state statute, rule or regulation, revenue procedure or administrative or judicial decision, subjects any individual to any form of excise tax or monetary penalty, or jeopardizes Children’s status as an organization described in Section 501(c)(3) of the Internal Revenue Code of 1986 or the tax-exempt nature of any bonds that have been issued by or on behalf of Children’s, then Children’s may, at its option, alter the terms of this Agreement so that it no longer violates the same, no longer subjects any individual to any form of excise tax or monetary penalty, or no longer jeopardizes Children’s status as a Section 501(c)(3) organization.  In such event, Consultant shall have the option of terminating this Agreement, immediately, upon written notice to Children’s of such intent to terminate.
• Deficit Reduction Act.  Consultant shall comply (when applicable) with the requirements of the Deficit Reduction Act of 2005 and has implemented a compliance program that is designed to detect fraud and abuse.
• Entire Agreement. This Agreement and all Exhibits attached hereto constitutes the entire agreement between the parties pertaining to the subject matter contained herein and supersedes all prior negotiations, understandings and agreements of the parties, whether oral or written, respecting the subject matter hereof.
• Amendments. Any amendments to this Agreement will be effective only if in writing and signed by authorized representatives of the parties.
• Severability. If any term, provision, covenant or condition of this Agreement, or the application thereof to any person, place or circumstance, shall be held to be illegal, invalid or unenforceable under present or future laws effective during the term of this Agreement, the legality, validity and enforceability of the remaining provisions shall remain in full force and effect.
• No Waiver. No failure or neglect of either party hereto in any instance to exercise any right, power or privilege hereunder, shall be deemed, or shall constitute a waiver of any other right, power or privilege or of the same right, power or privilege in any other instance.  No delay in acting with regard to any breach of any provision of this Agreement shall be construed to be a waiver of such breach.  All waivers by either party hereto must be contained in a written instrument signed by the party to be charged.
• Force Majeure.
  • No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make previously owed payments to the other party hereunder) when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”) that frustrates the purpose of this Agreement: (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; (i) epidemic, pandemic or similar influenza or bacterial infection (which is defined by the United States Center for Disease Control as virulent human influenza or infection that may cause global outbreak, or pandemic, or serious illness); (j) emergency state; (k) shortage of adequate medical supplies and equipment; (l) shortage of power or transportation facilities; and (m) other similar events beyond the reasonable control of the Impacted Party.

The Impacted Party shall provide the other party with written notice of a Force Majeure Event within five (5) days after the Impacted Party, acting in good faith and using reasonable diligence, reasonably determines that a Force Majeure Event will impact its operations to the extent that its performance under this Agreement will be delayed or frustrated, including with such notice the Impacted Party’s reasonable estimate of the duration of the Force Majeure Event and the expected time of performance by the Impacted Party, if any.  The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized and shall resume its performance under the Agreement as soon as reasonably practicable after the removal of the cause of the Force Majeure Event.  In addition to such other rights and remedies as may be available to Children’s, if Consultant is the Impacted Party, Children’s shall have the right to immediately terminate this Agreement by providing written notice thereof to Consultant if any Force Majeure Event continues, or is expected to continue, for more than thirty (30) days.

• If a Force Majeure Event is expected to delay or hinder, but not prevent, Consultant’s performance hereunder, then, in addition to such other rights and remedies as may be available to Children’s, Children’s may elect for the parties to work together to develop an appropriate response or course of action (a “Solution”), as such may be practical and reasonable under the circumstances, with respect to the Force Majeure Event and Consultant’s performance hereunder, provided that Children’s shall have no obligation with respect to a Solution unless Consultant provides Children’s with written notice of the additional costs, if any, expected to be incurred by Children’s in connection with such Solution and the parties mutually agree to a written amendment to this Agreement to address the Force Majeure Event.  Children’s shall not be responsible for any costs or expenses associated with a Solution unless and until such written amendment is fully executed and then only to the extent expressly provided for in such written amendment. 

• If any Force Majeure Event continues, or is expected to continue, for more than thirty (30) days, Children’s, in addition to such other rights and remedies as may be available to it, may:

1. purchase the goods or services from other sources and require Consultant to reimburse Children’s for any additional costs incurred by Children’s in obtaining the substitute goods or services; or

1. require Consultant to obtain goods or services from other sources at no additional cost or expense to Children’s.

For clarity, if Children’s exercises its rights under this provision, Children’s shall not be required to purchase any goods or services from Consultant that were purchased from a substitute vendor or provider.

1. Assignment. This Agreement may not be assigned by Consultant without Children’s prior written consent, which consent may not be unreasonably withheld.  Any attempted assignment shall be void and of no effect if not in accordance with this provision.
2. Notice. All notices required or permitted under this Agreement shall be in writing and shall be deemed sufficiently given (i) on the day personally delivered, (ii) three (3) days after deposit in the U.S. Mail if sent by certified or registered mail, postage prepaid, return receipt requested, or (iii) on the day of delivery if sent by recognized overnight courier service to the address of the party to be notified as set forth below or to such other address as such party last provided to the other party by notice as set forth herein.

Children’s: President/Chief Executive Officer

Children’s Healthcare of Atlanta, Inc.

1575 Northeast Expressway

Atlanta, Georgia 30329

With a copy to: Office of General Counsel

Children’s Healthcare of Atlanta, Inc.

1575 Northeast Expressway

Atlanta, Georgia 30329

Consultant: Positive Psychology Coaching and Diversity Institute, Inc.

2480 Briarcliff Road NE, Ste 6-263

Atlanta, GA 30329

• Binding Agreement. The rights and obligations of Children’s under this Agreement shall inure to the benefit of and shall be binding upon Children’s successors, transferees and permitted assigns.
• Dispute Resolution. The Parties agree to attempt initially to solve all claims, disputes or controversies arising under, out of or in connection with this Agreement by conducting good faith negotiations. If the Parties are unable to settle the matter between themselves, the matter shall thereafter be resolved by alternative dispute resolution, starting with mediation and including, if both parties agree, a final and binding arbitration. Whenever the Parties decide to institute arbitration proceedings, each party shall give written notice to that effect to the other Party. The Parties upon giving such notice shall refrain from instituting the arbitration proceedings for a period of sixty (60) days following such notice. During such period, the Parties shall make good faith efforts to amicably resolve the dispute without arbitration. Any arbitration hereunder shall be conducted under the rules of the American Arbitration Association. Each such arbitration shall be conducted by an arbitrator agreed upon by the Parties. Any such arbitration shall be held in Atlanta, Georgia. The arbitrators shall have the authority to grant specific performance. Judgment upon the award so rendered may be entered in any court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. In no event shall a demand for arbitration be made after the date when institution of a legal or equitable proceeding based on such claim, dispute or other matter in question would be barred under this Agreement or by the applicable statute of limitation. The prevailing Party in any such arbitration shall be entitled to recover from the other Party, in addition to any other remedies, all reasonable costs, attorneys’ fees and other expenses incurred by such prevailing Party.
• Governing Law. This Agreement shall be governed by, construed and interpreted in accordance with the laws of the State of Georgia, without giving effect to its conflicts of laws’ provisions.
• Discrepancies in the Proposal and this Agreement.  If there are any discrepancies between the   proposal (Exhibit A) and the terms of this Agreement, the terms of this Agreement shall prevail.
• Counterparts. This Agreement may be executed simultaneously in two or more counterparts, and signatures may be exchanged by facsimile or scan, each of which shall be deemed an original, but all of which together shall constitute one and the same document.

[Signatures on following page]

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by its duly authorized officers and representatives as of the day and year written below.

EXHIBIT A

DESCRIPTION OF SERVICES

Consultant will provide monthly coaching services for eight participants of the Physician and Leadership EDGE Program.

EXHIBIT B

PAYMENT SCHEDULE

The above services will be invoiced for 50% of fees at start of agreement and remaining 50% of fees at midpoint of program.

Any additional services outside of above will be billed at $350 per hour and invoiced at time of service.

Payment will be made thirty (30) days after receipt of an undisputed invoice.

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