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HomeMy WebLinkAboutexhibit1PROFESSIONAL SERVICES AGREEMENT This Agreement is entered into this day of , 200 (but effective as of (January 15, 2005) by and between the City of Miami for services to the Civilian Investigative Panel (CIP) as an independent citizens' oversight panel of the City of Miami's ("City") sworn police department and Charles C. Mays, Esq. ("Provider"). RECITALS: A. The City Charter and City Code of the City of Miami ("City") provides that an attorney -at -law admitted to practice in Florida for at least seven (7) years shall serve as the CIP Independent Counsel, subject to the approval of the City Attorney. B. The CIP has issued a Request for Qualifications ("RFQ") for the provision of legal services ("Services") and Provider's proposal ("Proposal"), in response thereto, has been selected as the most qualified Proposal for the provision of the Services. The RFQ and the Proposal are sometimes referred to herein, collectively, as the Solicitation Documents, and are by this reference incorporated into and made a part of this Agreement. The CIP approves the terms and conditions set forth in this Professional Services Agreement. C. On January 19, 2005, the City Attorney approved the selection of Provider to render Services to CIP as its Independent Counsel. NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained, Provider and City agree as follows: TERMS: 1. RECITALS: The recitals are true and correct and are hereby incorporated into and made a part of this Agreement. 2. TERM: The term of this Agreement shall be three (3) years commencing on the effective date hereof, The C1P may review the Provider's performance at any time, but in no event less often than annually. 3. OPTION TO EXTEND: The City, with the approval of the C1P, shall have the option(s) to extend the term hereof for a period of three (3) years, on the same terms and conditions, subject to availability and appropriation of funds. 4. SCOPE OF SERVICE: A. Provider agrees to provide the Services as specifically described, and under the special terms and conditions set forth, in Attachment "A" hereto, which by this reference is incorporated into and made a part of this Agreement. B. Provider represents and warrants to CIP that Provider: (i) possesses all qualifications, licenses and expertise required under the Solicitation Documents for the performance of the Services; (ii) it is not delinquent in the payment of any sums due the City, including payment of permit fees, occupational licenses, etc,, nor in the performance of any obligations to the City, (iii) all personnel assigned to perform the Services are and shall be, at all times during the tenn hereof, 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 CIP to Provider shall be based on the rates and schedules described in Attachment "B" hereto, which by this reference is incorporated c.CIP- Draft K for Independent Counsel(1-26-05 re Mays)] (2) 2 into this Agreement; provided, however, that in no event shall the amount of compensation exceed $214,500.00 per year. B. Unless otherwise specifically provided in Attachment "B", payment shall be made within forty five (45) days after receipt of Provider's invoice, which shall be accompanied by sufficient supporting documentation and contain sufficient detail, to allow a proper audit of expenditures, should the City or the 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. Travel outside Miami -Dade County shall be pre -approved by the CIP. 6. OWNERSHIP OF DOCUMENTS: Provider understands and agrees that any infon-nation, document, report or any other material whatsoever which is given by 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 all times remain the property of CIP. Provider agrees not to use any such information, document, report or material for any other purpose whatsoever without the written consent of CIP, which may he withheld or conditioned by CIP in its sole discretion. 7. AUDIT AND INSPECTION RIGHTS: A. The City or the CIP may, at reasonable times, and for a period of up to three (3) years following the date of final payment by City 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. c:CIP- Drafl K far IndependenI Counsel(1-26-05 re Moys)I (2) B. City may, at reasonable times during the term hereof, inspect Provider's facilities and perform such tests, as City deems reasonably necessary, to determine whether the goods or services required to be provided by Provider under this Agreement conform to the terns hereof and/or the terms of the Solicitation Documents, if applicable, Provider shall make available to the CIP all reasonable facilities and assistance to facilitate the performance oftests or inspections by CIP representatives. All tests and inspections shall be subject to, and made in accordance with, the provisions of Section 18-100 of the City Code, as same may be amended or supplemented, from time to time. AWARD OF AGREEMENT: Provider represents and warrants to City that it has not employed or retained any person or company employed by CIP to solicit or secure this Agreement and that he/she has not offered to pay, paid, or agreed to pay any 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 all reasonable times, to all docutnents and information pertaining to CIP contracts, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by the CIP and the public 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 CIP or City Attorney. 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 c:CIP- Draft K for Incleperiden1Counse1(1-26-05 re Mays)I (2) 4 keeping, etc. CIP and Provider agree to comply with and observe all applicable laws, codes and ordinances as they may be amended from time to time. 11, INDEMNIFICATION: Provider shall indemnify, defend and hold harmless the City and the CIP and its officials, employees and agents (collectively referred to as "Indemnities") and each of them from and against all loss, costs, penalties, fines, damages, claims, expenses (including attomey's 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 part, 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) by any act, omission, default or negligence (whether active or passive) of the Indemnitees, 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 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 Provider's 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 c:CfP- Draft K fur Independent Counsel(1-26-05 re Mays)I (2) occurrence of a default hereunder the CIP of the City of Miami, in addition to all remedies available to it by law, may immediately, upon written notice to Provider, terminate this Agreement whereupon all payments, advances, or other compensation paid by City to Provider while Provider was in default shall be immediately returned to City. Provider understands 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 for all expenses incurred by City in preparation and negotiation of this Agreement, as well as all costs and expenses incurred by 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 City based upon an alleged violation of the terms of this Agreement by City shall be submitted to the City Manager 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 $4,500, the City Manager's decision shall be approved or disapproved by the City Commission. Provider shall not be entitled to seek judicial relief unless: (i) it has first received City Manager's written decision, approved by the City Commission if the amount of compensation hereunder exceeds S4,500; or (ii) a period of sixty (60) days has expired, after submitting to the City Manager a detailed statement of the dispute, accompanied by all supporting documentation (90 days if City Manager'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. TERMINATION RIGHTS: c CIP- DragK for Independent Counsel( I -26-05 re Mays)1 (2) 6 A. The City Attorney, after consultation with the CIP, shall have the right to tenninate this Agreement by giving written notice to Provider at least five (5) business days prior to the effective date of such termination, In such event, CIP shall pay to Provider compensation for services rendered and expenses incurred prior to the effective date of ten-nination. In no event shall CIP be liable to Provider for any additional compensation, other than that provided herein, or for any consequential or incidental damages. B. In event of default by the Provider, the City Attorney shall have the right io terminate this Agreement, without notice to Provider, pursuant. to the City Charter and City Code of the City of Miami. In such event, City shall not be obligated to pay any amounts to Provider and Provider shall reimburse to City all amounts received while Provider was in default under this Agreement. 15. INSURANCE: Provider shall, at all times during the term hereof, maintain malpractice insurance coverage as may be required by the City. All such insurance, including renewals, shall be subject to the approval of City for adequacy of protection. 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 ithin thirty (30) days following the City's written notice, this Contract shall be considered terminated on the date that the required change in policy coverage would otherwise take effect. TR:Professional Services Agreement for Independent Counsel(1-26-05 ry Mays)] to City Commission 16. NONDISCR M NATION: Provider represents and warrants to 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. 17. ASSIGNMENT: This Agreement shall not be assigned by Provider, in whole or in part, without City's prior written consent, which may be withheld or conditioned, in City's sole discretion. 18. 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 party 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 PROVIDER: TO CIP: Charles C. Mays, Esquire 10240 S.W. 144 Street Miami, Florida 33176 Shirley E. Richardson, Executive Director Civilian Investigative Panel City of Miami 155 S. Miami Avenue, PH l-B Miami, Florida 33130 19. MISCELLANEOUS PROVISIONS: A. This Agreement shall be construed and enforced according to the laws of the State of Florida. TR:Professional Servic:es Agreement for Independent Coonsel(1.26-05 i Mays)] to City Commission 11. Title and paragraph headings are for convenient reference and are not a part 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 court 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. 20. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon the parties hereto, their heirs, executors, legal representatives, successors, or assigns. 21. INDEPENDENT CONTRACTOR: Provider has been procured and is being engaged to provide Services to City as an independent contractor, and not as an agent or employee of the City or CIP. Accordingly, Provider shall not attain, 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 City are not available to Provider, c-CIP- Draft K for ndependenIndependent'ounsel(1-26-05 re Mays)I (2) • 9 and agrees to provide workers' compensation insurance for any employee or agent of Provider rendering services to CIP under this Agreement. 22. 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 thirty (30) days notice. 23. REAFIRMATION OF REPRESENTATIONS: Provider hereby reaffirms all of the representations contained in the Solicitation Documents. 24. 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. 25. COUNTERPARTS: This Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute one and the same agreement. 26. SPECIAL INSURANCE AND INDEMNIFICATION RIDER: Please initial if applicable: 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, c:CIP- Draft K for Independent Counsel(1-26-05 re Mays)I (2) 10 ATTEST: PRISCILLA A. THOMPSON City Clerk ATTEST: City of Miami By: JOE ARRIOLA City Manager "Provider" CHARLES C. MAYS, ESQ. 10240 S,W. 144 Street Miami, Florida 33176 an individual By: Print Name: Title: Provider APPROVED AS TO FORM ANDfl, APPROVED AS TO INSURANCE LEGALITY: JORGE L. FERNANDEZ City Attorney REQUIREMENTS: DANIA F. CARRILLO Administrator Risk Management CoM:Professonl Services Agreement for Independent Counse10-26-Or re Mays)] to City Commission