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HomeMy WebLinkAboutrevisionCITY OF MIAMI CITY ATTORNEY'S OFFICE MEMORANDUM TO: Mayor and Members of the City Commission FROM: Alejandro \'ilarello. City Attorney DATE: June 23, 2004 RE: Substitute attachment for item regarding Civilian Investigative Pane] Executive Director's recommendation for the selection of firms for private investigative services. (Item No. CA. 14) This is a substitute attachment for the above -referenced item. Enclosed is a copy of the resolution and a revised contract. The original contract had a term that ended September 30. 2004, and had one option to extend the contract for an additional one -yeas period. Additionally, the contract stated that the compensation was subject to the availability of funds. The attached contract has three substantive changes. First, the initial term of the contract has been changed to two years. Second, the revised contract has three options to extend the contract for additional one-year periods. The third change is based upon the Civilian Investigative Panel's use of the investigative firms on an "as needed" basis. Because it is difficult to determine the actual maximum amount that would be expended on each contract annually, the contract has been revised to include that the maximum, amount payable to all firrns annually shah' not exceed S 142,000. With these three substantive changes, the contracts are consistent with the Request for Letters of Interest to which the investigative firms responded and with the resolution that was included in your packages. Please substitute these items for the ones in your agenda package. if you have any questions, please let our office know. AV IYW ag Enclosures c: Joe Arriola. City Manager Priscilla A. Thompson, City Clerk E-NAk !.!'2vor&CrvComrr PROFESSIONAL SERVICES AGREEMENT This Agreement is entered into this day of , 2004 (but effective as of ) by and between the Civilian Investigative Panel ("CIP"), a limited agency and instrumentality of the City of Miami. a municipal corporation of the State of Florida ("City-") and ("Provider"). RECITALS: a corporation A. The Cite has issued a Request for Letters of Interests ("RFLI") for the provision of investigative services ("Services") and Provider's proposal ("Proposal"), in response thereto, has been selected as the most qualified proposal for the provision oldie Services. The RFLI and the Proposal are sometimes referred to herein, collectively, as the Solicitation Documents, and are by this reference incorporated into and made a pan of this Agreement. B. Provider possesses all necessary qualifications and expertise to perform the Services. C. The CIP wishes to enuaee the services of Provider. and Provider wishes to perform the services for CIP. under the terms and conditions set forth herein. D. The CIP. by Resolution No. . adopted on 200_. approved the selection of Provider for the provision of the Services required under this Agreement and authorized the CIP Executive Director to execute a contract, under the terms and conditions set forth herein. E. The Commission of the Cite of Miami. by Resolution No. adopted on . 200_. approved the selection of Provider for the provision of the Services required under this Agreement, and authorized the CIP Executive Director to execute a contract, under the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained. Provider and the CIP agree as follows: TERMS: I. RECITALS: The recitals are true and correct and are hereby incorporated into and made a pan of this Agreement. 2. TERM: The term of this Agreement shall be two (2) years, commencing on the effective date hereof. 3. OPTION TO EXTEND: The CIP shall have three (3) options to extend the term hereof for additional one (1) year periods subject to availability and appropriation of funds. CIP and City Commission approval shall not be required as long as the total extended term does not exceed three (3) years. or a period equal to the original term of this Agreement, whichever is longer. 4. SCOPE OF SERVICE: A. Provider agrees to provide the Services as specifically described. and subject to the special terms and conditions set forth in Attachment "A" hereto, which by this reference is incorporated into and made a pan of this Agreement. B. Provider represents and wan -ants to the CIP that: (i) it possesses all qualifications. licenses and expertise required for the performance of the Services; (ii) it is not delinquent in the payment of any sums due the Cite or its agencies. including payment of permit fees. occupational licenses. etc.. nor in the performance of any obligations to the City or its agencies. (iii),all personnel assigned to perform the Services are and shall he. at all times during the term hereof. ss-CIP PSA-in yes_reator clear fully qualified and trained to perform the tasks assigned to each; and (iv) the Services will be performed in the manner described in Attachment "A". 5. COMPENSATION: A. The amount of compensation payable by the CIP to Provider shall be based on the rates and schedules described in Attachment "B" hereto, which by this reference is incorporated into this Agreement, subject to availability and appropriation of funds. Provider shall provide Services on an "as needed, when needed" basis. The maximum aggregate amount payable to the Providers of the Services pursuant to RFLI No. 03-04-097 shall not exceed $142.000, unless the Cite Commission makes additional appropriation. B. Unless otherwise specifically provided in Attachment "B", payment shall be made within forte -five (45) days after receipt of Providers invoice, which shall be accompanied by sufficient supporting documentation and contain sufficient detail, to allow a proper audit of expenditures. should CIP require one to be performed. If Provider is entitled to reimbursement of travel expenses (i.e. Attachment "B" includes travel expenses as a specific item of compensation). then all bills for travel expenses shall be submitted in accordance with Section 112.061. Florida Statutes. as amended. 6. OWNERSHIP OF DOCUMENTS: Provider understands and agrees that any information. document. report or any other material whatsoever which is given by the CIP to Provider or which is otherwise obtained or prepared by Provider pursuant to or under the terms of this Agreement is and shall at al] times remain the property of the CIP. Provider agrees not to use any such information, document. report or material for any other purpose whatsoever without the written consent of CIP•s Executive Director. which may be withheld or conditioned b\ the CIP in its sole discretion. ss'CLP PS A-tnves igato± clear, 7. AUDIT AND INSPECTION RIGHTS: A. The City and CIP may, at reasonable times, and for a period of up to three (3) rears following the date of final payment by the CIP to Provider under this Agreement, audit, or cause to be audited, those books and records of Provider which are related to Provider's performance under this Agreement. Provider agrees to maintain all such books and records at its principal place of business for a period of three (3) years after final payment is made under this Agreement. B. The Cite or CIP mav, at reasonable times during the term hereof. inspect Provider's facilities and perform such tests, as the CIP deems reasonable necessary, to determine whether the goods or services required to be provided by Provider under this Agreement conform to the terms hereof, if applicable. Provider shall make available to the City and CIP all reasonable facilities and assistance to facilitate the performance of tests or inspections CIP representatives. All tests and inspections shall be subject to. and made in accordance with. the provisions of Section 18- l 00 and 18- l 01 of the Code of the City of Miami. Florida. as same ma' be amended or supplemented, from time to time. 8. AWARD OF AGREEMENT: Provider represents and warrants to the CIP that is has not employed or retained any person or company employed by the CIP to solicit or secure this Agreement and that it has not offered to pad . paid. or agreed to pad an' person any fee. commission. percentage, brokerage fee. or gift of any kind contingent upon or in connection with. the award of this Agreement. 9. PUBLIC RECORDS: Provider understands that the public shall have access. at al] reasonable times. to all documents and information pertaining to CIP's contracts, subject to the provisions of Chapter l 19. Florida Statutes. and agrees to allow- access by the CIP and the public ss7CIP PSA-Lhses.i€ator cigar 4 to all documents subject to disclosure under applicable law. Provider's failure or refusal to comply with the provisions of this section shall result in the immediate cancellation of this Agreement by the City. 10. COMPLIANCE WITH FEDERAL. STATE AND LOCAL LAWS: Provider understands that agreements between private entities and local governments are subject to certain laws and regulations, including laws pertaining to public records, conflict of interest, record keeping. etc. CIP and Provider agree to comply with and observe all applicable federal, state and local laws, rules, regulations, codes and ordinances, as the may be amended from time to time. 11. INDEMNIFICATION: Provider shall indemnify, defend and hold harmless the City. the CIP and its officials, employees and agents (collectively referred to as "lndernnitees") and each of them from and against all loss, costs, penalties. fines, damages, claims. expenses (including attorneys fees) or liabilities (collectively referred to as "Liabilities") by reason of any injury to or death of any person or damage to or destruction or loss of any property arising out of. resulting from, or in connection with (i) the performance or non-performance of the services contemplated by this Agreement which is or is alleged to be directly or indirectly caused, in whole or in pan. by any act, omission. default or negligence (whether active or passive) of Provider or its employees. agents or subcontractors (collectively referred to as "Provider"). regardless of whether it is, or is alleged to be. caused in whole or part (whether joint. concurrent or contributing) bact. omission. default or negligence (whether active or passive) of the lndemnitees, or any of them or (ii) the failure of the Provider to comply with any of the paragraphs herein or the failure of the Provider to conform to statutes. ordinances. or other regulations or requirements of any governmental authority. federal or state. in connection with the performance of this .Agreement. Provider expressly agrees to indemnify and hold harmless ssCIP PS.A-investigato' clear, the lndemnitees, or any of them, from and against all liabilities which may be asserted by an employee or former employee of Provider, or any of its subcontractors, as provided above, for which the Providers liability to such employee or former employee would otherwise be limited to payments under state Workers' Compensation or similar laws. 12. DEFAULT: If Provider fails to comply with any term or condition of this Agreement. or fails to perform any of its obligations hereunder. then Provider shall be in default. upon the occurrence of a default hereunder the CIP, in addition to all remedies available to it by law, may immediatel'. upon written notice to Provider, terminate this Agreement whereupon all payments. advances, or other compensation paid by the CIP to Provider while Provider was in default shall be immediately returned to the City. Provider under -stands and agrees that termination of this Agreement under this section shall not release Provider from any obligation accruing prior to the effective date of termination. Should Provider be unable or unwilling to commence to perform the Services within the time provided or contemplated herein, then. in addition to the foregoing. Provider shall be liable to the CIP for all expenses incurred by the CIP in preparation and negotiation of this Agreement, as well as all costs and expenses incurred by the CIP in the re- procurement of the Services. including consequential and incidental damages. 13. RESOLUTION OF CONTRACT DISPUTES: Provider understands and agrees that all disputes between Provider and the CIP based upon an alleged violation of the terms of this Agreement by the CIP shall he submitted to the CIP's Executive Director for his'her resolution. prior to Provider being entitled to seek judicial relief in connection therewith_ In the event that the amount of compensation hereunder exceeds S5.000. the CIP Executive's decision shall he approved or disapproved by the CIP. In the event that the amount of compensation hereunder exceeds S50.000. the CIP's decision shall be approved or disapproved by the Cite Commission. ss'CIP PS A-invcsagarol cicar 6 Provider shall not be entitled to seek judicial relief unless: (i) it has first received CIP Executive Director's written decision, approved by the CIP if the amount of compensation hereunder exceeds 15.000 and approved by the City Commission if the amount of compensation hereunder exceeds 150.000; or (ii) a period of sixty (60) days has expired, after submitting to the CIP's Executive Director a detailed statement of the dispute, accompanied by all supporting documentation (one hundred twenty (120) days if CIP Executive Director's decision is subject to City Commission approval): or (iii) City has waived compliance with the procedure set forth in this section by written instruments, signed by the City Manager. 14. CIP'S TERMINATION RIGHTS: A. The CIP shall have the right to terminate this Agreement, in its sole discretion. at any time, by giving written notice to Provider at least five (5) business days prior to the effective date of such termination. In such event. the. CIP shall pay to Provider compensation for services rendered and expenses incurred prior to the effective date of termination. In no event shall the CIP be liable to Provider for any additional compensation, other than that provided herein. or for an' consequential or incidental damages. B. The CIP shall have the right to terminate this Agreement. without notice or liability to Provider. upon the occurrence of an event of default hereunder. In such event. the CIP shall not be obligated to pad any amounts to Provider and Provider shall reimburse to the CIP all amounts received while Provider was in default under this Agreement. 15. INSURANCE: Provider shall. at all times during the term hereof. maintain such insurance coverage as may be required by the City and the CIP. All such insurance, including renewals. shall be subject to the approval of the City for adequacy of protection and evidence of such coverage shall be furnished to the Cite on Certificates of Insurance indicating such ss-CLF PSA-lrvesigatm clear. insurance to be in force and effect and providing that it will not be canceled during the performance of the services under this contract without thirty (30) calendar days prior written notice to the City. Completed Certificates of Insurance shall be filed with the Cite prior to the performance of services hereunder, provided, however. that Provider shall at any time upon request file duplicate copies of the policies of such insurance with the City. If. in the judgment of the City, prevailing conditions warrant the provision by Provider of additional liability insurance coverage or coverage which is different in kind, the City reserves the right to require the provision by Provider of an amount of coverage different from the amounts or kind previously required and shall afford written notice of such change in requirements thirty (30) days prior to the date on which the requirements shall take effect. Should the Provider fail or refuse to satisfy the requirement of changed coverage within thirty (30) days following the City's written notice. this Contract shall be considered terminated on the date the required change in policy coverage would otherwise take effect. 16. CONFLICT OF INTEREST: A. Provider is aware of the conflict of interest laws of the City of Miami Code Chapter 2. Article \'. Dade County. Florida (Dade County Code. Section 2-11.1 et. sec.) and of the State of Florida as set forth in the Florida Statutes. and agrees that it will fully comply in all respects with the terms of said laws and an\ future amendments thereto. B. Provider covenants that no person or entity under its employ. presentiexercising an' functions or responsibilities in connection with this Agreement. has any persona] financial interests. direct or indirect_ with the Cit` . Provider further covenants that. in the performance of this Agreement. no person or entity having such conflicting interest shall be utilized in respect to s. CLz P54-imes:1gam clear. 8 services provided hereunder. Any such conflict of interest(s) on the pan of Provider, its employees or associated persons, or entities must be disclosed in writing to the City. 17. NONDISCRIMINATION: Provider represents and warrants to the CIP that Provider does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with Provider's performance under this Agreement on account of race. color, sex. religion, age, handicap, marital status or national origin. Provider further covenants that no otherwise qualified individual shall, solely by reason of his/her race, color, sex, religion, age, handicap. marital status or national origin. be excluded from participation in, be denied services, or be subject to discrimination under any provision of this Agreement. 18. MINORITY AND WOMEN BUSINESS AFFAIRS AND PROCUREMENT PROGRAM: The City has established a Minorite and Women Business Affairs and Procurement Program (the "M'VvBE Program'') designed to increase the volume of Cite procurement and contracts with Blacks. Hispanic and Women -owned business. The M-'WBE Program is found in Ordinance No. 10062. Provider understands and agrees that the Cite shall have the right to terminate and cancel this Agreement, without notice or penalty to the City. and to eliminate Provider from consideration and participation in future Ciry contracts if Provider. in the preparation and,or submission of the Proposal. submitted false of misleading information as to its status as Black. Hispanic and,or Women owned business and/or the quality and'or type of minority or women owned business participation. 19. ASSIGNMENT: This Agreement shall not be assigned by Provider. in whole or in pan. without the CIP's prior written consent which may be withheld or conditioned. in the CIP's sole discretion. 55-CIP PS.A-lrvestigato7 clear 9 20. NOTICES: All notices or other communications required under this Agreement shall be in writing and shall be given by hand -delivery or by registered or certified U.S. Mail. return receipt requested. addressed to the other party at the address indicated herein or to such other address as a parry may designate by notice given as herein provided. Notice shall be deemed given on the day on which personally delivered: or. if by mail, on the fifth day after being posted or the date of actual receipt. whichever is earlier. To the CIP Executive Director Civilian Investigative Panel 155 S. Miami Avenue. Phi-B. Miami. Florida 33130 and to: Cite Manager Cite of Miami 3500 Pan American Drive Miami. Florida 33133 With a copy to: Attorney of Miami 444 SW 3"0 Avenue. Suite 945 Miami. Florida 33130 CIP Independent Counsel Law Offices of Levine & Finger Madison Circle Executive Bldg. 3 191 Coral Way, Suite 1010 Miami, Florida 33145 To the Provider: 21. MISCELLA SOUS PROVISIONS: A. This Agreement shall be construed and enforced according to the laws of the State of Florida. Venue for an. legal proceedings shall be Miami -Dade County. Florida. ss.CIP PS.A-inves:igato' clear. 10 B. Title and paragraph headings are for convenient reference and are not a pan of this Agreement. C. No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. D. Should any provision, paragraph. sentence, word or phrase contained in this Agreement be determined by a coup of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida or the City of Miami, such provision. paragraph. sentence, word or phrase shall be deemed modified to the extent necessary in order to conform with such laws, or if not modifiable. then same shall be deemed severable, and in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect or limitation of its use. E. This Agreement constitutes the sole and entire agreement between the parties hereto. No modification or amendment hereto shall be valid unless in writing and executed by properly authorized representatives of the parties hereto. 22. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon the parties hereto, their heirs. executors, legal representatives. successors. or assigns. 23. INDEPENDENT CONTRACTOR: Provider is being engaged to provide services to the CIP as an independent contractor. and not as an agent or employee of the Cite or the CIP. Accordingly. Provider shall not again, nor be entitled to. any rights or benefits under the Civil Service or Pension Ordinances of the City. nor any rights generally afforded classified or unclassified employees. Provider further understands that Florida Workers- Compensation benefits available to employees of the Cite or the CIP are not available to Provider. and agrees to ss'CIF PSP.-irves: Bator cigar, I] provide workers- compensation insurance for any employee or agent of Provider rendering services to the CIP under this Agreement. 24. CONTINGENCY CLAUSE: Funding for this Agreement is contingent on the availability of funds and continued authorization for program activities and the Agreement is subject to amendment or termination due to lack of funds, reduction of funds and/or change in regulations, upon thin,- (30) days notice. 25. ENTIRE AGREEMENT: This instrument and its attachments constitute the sole and only agreement of the parties relating to the subject matter hereof and correctly set forth the rights. duties. and obligations of each to the other as of its date. Any prior agreements, promises. negotiations. or representations not expressly set forth in this Agreement are of no force or effect. IN WITNESS WHEREOF. the parties hereto have caused this instrument to be executed by their respective officials thereunto duly authorized. this the day and year above written. ATTEST: Print Name: Print Title: ATTEST: "CIP.. Civilian Investigative Panel a limited agency and instrumentality of the City of Miami. a municipal corporation Shirley E. Richardson Executive Director "Provider" a corporation By: Print Name: Print Name: SF7CLT'' PSA-Ir,'-ec €ato7 clear, 12 Tit]e: Corporate Secretary Tit]e: APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: Alejandro Vilarello Dania Carrillo Cite Anorney Risk Management Administrator ssCIF PS A-invesugaur :iear 1_ Attachment A Scope of Services The Investigator(s), at a minimum, shall meet the following requirements and perform the following professional services for the CIP. A Examine and evaluate each complaint, communicating with and interviewing principals and witnesses to include complainant(s). law enforcement and civilian witnesses and any other involved persons and obtaining sworn, tape-recorded statements from all interviewees. B. Obtain police incident and investigative reports, supplemental reports and all other records relating to the incident. C. Meet with the CIP Independent Counsel as directed by the CIP, its Executive Director or designee to discuss the status. details and complexities of an investigation, issuance of subpoenas and any matters requiring intervention of independent legal counsel. D. Request the assistance of the CIP and administrative staff where required or necessary, to include obtaining additional and necessary documents and evidence relevant to the investigation. E Submit draft reports within twenty-one (21) days of assignment to Independent Counsel and the CIP Executive Director. All reports shall remain confidential. and shall be released only upon the expressed written authorization of the CIP. All investigative reports. evidence gathered, statements. etc. taken during the investigation are to remain the sole property of the CIP. Request additional time for investigations not completed within the 21-day period. stating the reason for extension and providing a time line for completion of all phases. Provide status reports at designated intervals. G. Provide clear, concise and analytical reports on each investigation, to include an analysis of the allegation(s). summarized statements of persons interviewed. applicable police procedures. applicable statutes and/or codes, suggested findings. recommendations and any other relevant information. H. Attendance may be required at General CIP meetings to provide information and/or reports on cases. Mandatory attendance at evidentiary hearings or public hearings concerning assigned cases or issues. Provide the CIP with completed invoices reflecting the hours worked and signed by the Investigator and CIP Executive Director or designee on forms provided. by the CIP. Provide any other services as normally and customarily required of private investigators. K. ss'CIF PS A-Insesnga[or clear. Attachment B Compensation Fee Schedule The CIP shall pay Private lnvestigator(s) seventy ($70.00) per hour straight time. during the initial two years of the contract. The hourly rates for the optional extension year(s) may be increased if approved. in writing. by the CIP. for an amount not to exceed a maximum of l 0% per extension year. There shall be no reimbursable out-of-pocket or travel expenses without written notification and authorization of the CIP. The CIP will monitor the number of hours submitted by Private lnvestigator(s) for work performed. and shall not pay for and questionable hours not documented b� Investigator(s) or approved by the CIP.