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HomeMy WebLinkAboutExhibitPROFESSIONAL SERVICES AGREEMENT This Agreement is entered into this day of , 2007, (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 Harvey, Covington & Thomas, L.L.C. ("Provider"). RECITAL A. The City has issued a Request for Proposals ("RFP") for the provision of External Auditing 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 RFP 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. B. Provider possesses all necessary qualifications and expertise to perform the Services. C. The CIP wishes to engage 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 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. B. The Commission of the City of Miami, by Resolution No. , adopted on , 2007, approved the selection of Provider 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 Civilian Investigative Panel 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 two (2) years commencing on the effective date hereof. 3. OPTION TO EXTEND: The CIP shall have three (3) option(s) to extend the term hereof for a period of one (1) year each, 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 the CIP that: (i) it 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 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 be, at all times during the term 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 CoM:PSA ExternalAuditingCivilianInvesligativePanel (2) 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; provided, however, that in no event shall the amount of compensation exceed $56,500, in the absence of a duly executed amendment to this Agreement. The CIP shall have no liability for payment of any compensation beyond the limitations expressed in this Section. 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 CIP require one to be performed. If Provider is entitled to reimbursement of travel expenses ji.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. 6. OWNERSHIP OF DOCUMENTS: Except for Provider's work papers or. administrative records, which shall remain the property of Provider, 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 all times remain the property of the CEP. Provider i agrees not to use any such information, document, report or material for any other purpose whatsoever without the written consent of the CIP's Executive Director, which may be withheld or conditioned by the CIP in its sole discretion. CoM:PSA Ext alAuditingCivilianlnvestigativePanel (2) 7. AUDIT AND INSPECTION RIGHTS: A. The City and CIP may, at reasonable times, and for a period of up to three (3) years 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 City or CIP may, at reasonable times during the term hereof, inspect Provider's facilities and perform such tests, as the CIP deems reasonably necessary, to determine whether the goods or services required to be provided by Provider under this Agreement conform to the terms hereof and/or the terms of the Solicitation Documents, if applicable. Provider shall make available to the City and CIP all reasonable facilities and assistance to facilitate the performance of tests or inspections by CIP representatives. All tests and inspections shall be subject to, and made in accordance with, the applicable provisions of Chapter 18 of the Code of the City of Miami, Florida, as same may be amended or supplemented, from time to time. 8. AWARD OF AGREEMENT: Provider represents and warrants to the CIP that it 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 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 documents 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 CoM:PSA ExtemalAuditingCivilian]nvestigativePanel (2) 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 CIP. 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. The 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, save and hold harmless the City, the CIP and its officials, employees and agents (collectively referred to as "Indemnitees") and each of them from and against all loss, costs, penalties, fines, damages, claims, expenses (including attorney'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"), (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 i any governmental authority, federal or state, in connection with the performance of this Agreement. Provider expressly agrees to indemnify and hold harmless the Indemnitees, 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 CoM:F'SA ExtemalAuditingCivilianinvestigativePanel (2) 5 such employee or former employee would otherwise be limited to payments under state Workers' Compensation or similar laws. This indemnification provision shall control over the Indemnification provision in the RFP and shall survive the termination or the expiration of this Agreement for the limitations period prescribed by Florida law. This Indemnification provision shall obligate the Provider to defend (at its own expense) to and through appellate, supplemental or bankruptcy proceedings, or to provide for such defense, at the City Attorney's option, any and all claims of liability and all suits and actions of every name and description covered by this Section 11, which may be brought against the City and the CIP whether performed by Provider, or persons employed or utilized by the Provider. 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. Prior to termination of this Agreement for default, the CIP shall notify the Provider in writing of its intent to tenninate the Agreement for default, identify the alleged deficiencies in performance giving rise to the intent to terminate, and shall give the Provider thirty (30) days to cure such deficiencies. Upon the occurrence of a default hereunder the CIP, in addition to all remedies available to it by law, may following thirty (30) days from the date of the 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 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 to the CIP for all expenses incurred by the CIP in preparation and negotiation of this Agreement, as CoM:PSA ExtcvnalAuditingCivilianlnvestigativePanel (2) 6 well as all costs and expenses incurred by the Civilian Investigative Panel 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 be 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 $25,000, the CIP Executive Director's decision shall be approved or disapproved by the CIP and the City Commission. Provider shall not be entitled to seek judicial relief unless: (i) it has first received the CIP Executive Director's written decision, approved by the CIP and the City Commission if the amount of compensation hereunder exceeds $25,000, or (ii) a period of sixty (60) days has expired, after submitting to the Executive Director a detailed statement of the dispute, accompanied by all supporting documentation (90 days if Executive Director's decision is subject to the 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 any consequential or incidental damages. CoM:PSA ExternalAuditingCivilianlnvestig v B. The CIP shall have the right to terminate this Agreement, without notice to Provider, upon the occurrence of an event of default hereunder which, in the opinion of the CIP or Executive Director, is of sufficient gravity that it is necessary to protect the interests of public health, safety or general welfare. In such event, the CIP shall not be obligated to pay 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 teen 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 City on Certificates of Insurance indicating such 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 City 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 C oM:PSA ExternalAuditingCivilianInvestigativePanel (2) date that the required change in policy coverage would otherwise take effect. All references to the City in Section 15 shall mean the City of Miami's Risk Management Administrator. 16. 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. 17. MINORITY AND WOMEN BUSINESS AFFAIRS AND PROCUREMENT PROGRAM: The City of Miami has established a Minority and Women Business Affairs and Procurement Program (the "M/WBE Program") designed to increase the volume of City's procurement and contracts with Blacks, Hispanic and Women -owned business. The M/WBE Program is found in Ordinance No. 10062, a copy of which has been delivered to, and receipt of which is hereby acknowledged by, Provider. Provider understands and agrees that the City 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 City 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. 18. ASSIGNMENT: This Agreement shall not be assigned by Provider, in whole or in part, without the prior written consent of the CIP, which may be withheld or conditioned, in the CIP's sole discretion. CoM:PSA ExternalAuditingCivilianJnvestigativePanel (2) 9 19. 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 CIVILIAN INVESTIGATIVE PANEL: Harvey, Covington, & Thomas, LLC Attention: Roderick Harvey 3816 Hollywood Boulevard Suite 203. Hollywood, Florida 33021 Copies: City Manager City of Miami 444 S.W. 2 Avenue 10th Floor Miami, Florida 33130 CIP Independent Counsel Charles C. Mays 155 South Miami Avenue, PH1B Miami, Florida 33130 Shirley E. Richardson Executive Director Civilian Investigative Panel 155 South Miami Avenue, PH1B Miami, FL 33130 City Attorney City of Miami 444 S.W. 2 Avenue 9th Floor Miami, Florida 33130 20. MISCELLANEOUS PROVISIONS: A. This Agreement shall be construed and enforced according to the laws of the State of Florida. Venue in any civil action between the parties shall be in Miami -Dade County, Florida. CoM :PSA ExternalAuditingC'ivilianInvestigativePanel (2) 10 In order to expedite the resolution or conclusion of any civil action between the parties, the parties voluntarily and knowingly waive their right to demand a jury trial or to file a permissive counterclaim in any action between them. B. 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. 21. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon the parties hereto, their heirs, executors, legal representatives, successors, or assigns. 22. INDEPENDENT CONTRACTOR: Provider has been procured and is being engaged to provide services to the CIP 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 CoM:PSA ExtemalAuditingCivilianInvcstigativePanel (2) 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 of Miami or the CIP are not available to Provider, and agrees to provide workers' compensation insurance for any employee or agent of Provider rendering services to the CIP under this Agreement. 23. 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. 24. REAFIRMATION OF REPRESENTATIONS: Provider hereby reaffirms all of the representations contained in the Solicitation Documents. 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. 26. 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. 27. AMENDMENT: The Executive Director shall have the sole authority to amend this agreement under the conditions set forth in the Resolution. CoM:PSA ExternalAuditingCiviIiar71nve5tipativePanel (2) 12 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. "CIP" Civilian Investigative Panel a limited agency and instrumentality of the City of Miami, a municipal corporation ATTEST: By: Priscilla A. Thompson, City Clerk Shirley E. Richardson Executive Director ATTEST: Print Name: Title: Corporate Secretary "Provider" Harvey, Covington, & Thomas, a Limited Liability Corporation By: Print Name: Roderick Harvey, CPA, CVA Title: Managing Partner APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: Jorge Fernandez LeeAnn Brehm City Attorney Administrator Risk Management CoM:PSA ExternalAuditingCivilianlnvestigativePanel (2) 13