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HomeMy WebLinkAboutExhibit 4SERVICES AGREEMENT This Agreement is entered into this day. of , 200_ (but effective as of ), by and between the City of Miami, a municipal corporation of the State of Florida ("City") and Orchid Cellmark, Inc., a Delaware corporation ("Secondary Contractor"). RECITALS A. City has been awarded a federal grant for funding the "Solving Cold Cases with DNA Program" ("Cold Case DNA Program") to review, prioritize, examine and evaluate homicide cold cases to identify physical evidence with the potential to yield deoxyribonucleic acid ("DNA") that can be submitted for testing. B. Miami -Dade County, Florida ("County") provides forensic laboratory services for County and over thirty (30) municipalities, including City, with the average of two hundred and fifty (250) cases processed each month by the Miami -Dade Crime Laboratory Bureau's Forensic Biology Section. County has been awarded a federal grant under the Forensic Casework DNA Backlog Reduction Program (DNA Backlog Reduction Program) to support the outsourcing DNA analysis for violent crime cold cases. C. In connection the DNA Backlog Reduction Program, County issued a request for proposals ("RFP") No. 8514 to outsource forensic casework for DNA analysis of backlogged cold violent crime cases ("Services"). Secondary Contractor's bid in response 2- WOCr-ito RFP No. 8514 was selected as the most qualified bid for the provision of services. Secondary Contractor contracted with County to provide services under Contract No. RFP 8514b. D. In accordance with the Code of the City of Miami, Florida, Section 18-111, the Chief Procurement Officer has determined that Contract No. RFP 8514b was entered into by a competitive process in compliance with City laws, policies and procedures. G. City desires to accept the bid secured by County and hence, procure from Secondary Contractor such services for City, in accordance with the terms and conditions of this Agreement. H. The Commission of the City of Miami, by Resolution No. - adopted on , 2008, approved the selection of Secondary Contractor and authorized the City Manager to execute a services agreement, under the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained, Secondary Contractor 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 for the duration of three (3) years commencing on the effective date hereof. M:Orchid Cellmark 2 3. OPTION TO RENEW OR EXTEND: A. City, at its sole discretion, reserves the right to exercise the right to renew this Agreement for a period of three (3) additional years on a year-to-year basis. B. City reserves the right to exercise its option to extend this Agreement for up to one hundred -eighty (180) calendar days beyond the current period of this Agreement and will notify Secondary Contractor in writing of the extension. This Agreement may be extended beyond the initial one hundred -eighty (180) calendar day extension period by mutual agreement between City and Secondary Contractor, upon approval by the City Commission. 4. SCOPE OF SERVICES: Secondary Contractor agrees to provide Services as specifically described herein 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. A. City shall have the right to outsource Services to Secondary Contractor in situations where Miami -Dade Crime Laboratory Bureau determines Secondary Contractor cannot respond in a timely manner, cannot fulfill its contractual obligations or when the workload warrants. Neither City nor Secondary Contractor shall subcontract Services under this Agreement. B. Secondary Contractor represents and warrants to City that, for the duration of this agreement: (i) it shall be accredited in nuclear DNA testing either by either the American Society of Crime Laboratories Directors/Laboratory Accreditation Board or M:Orchid Cellmark 3 Forensic Quality Services; (ii) it possesses all qualifications, licenses and expertise required under the Solicitation Documents for the performance of Services; (iii) it is not delinquent in the payment of any sums due City, including payment of permit fees, occupational licenses, etc., nor in the performance of any obligations to City; (iii) key personnel assigned to perform Services have experience in outsourced DNA casework for federal and /or state law enforcement agencies (iv) all personnel are and shall be, at all times during the term hereof, fully qualified and trained to perform the tasks assigned to each; and (iv) Services will be performed in the manner described in Attachment "A". 5. COMPENSATION: Secondary Contractor warrants that it has reviewed City's requirements and has asked such questions and conducted such other inquiries as Secondary Contractor deemed necessary in order to determine the price Secondary Contractor will charge to provide Services to be performed under this Agreement. A. The amount of compensation payable by City to Secondary Contractor for all Services performed under this Agreement, including all costs associated with such Services, shall be in the total amount of five hundred and fifty-eight dollars ($558.00) per sample analyzed based on the specifications in Attachment "A" hereto, which price shall include all out-of-pocket expenses, such as travel, per diem, and miscellaneous costs and fees. City shall have no obligation to pay Secondary Contractor any additional sum in excess of this amount, except for a change and/or modification to the Agreement, which is approved and executed in writing by City and Secondary Contractor. M:Orchid Cellmark 4 Prices shall remain firm and fixed for the term of the Agreement, including any option or extension period; however Contractor may offer incentive discounts to City at any time during the term of the Agreement, including any renewal or extension thereof. B. Payment shall be made within forty five (45) days after receipt of Secondary Contractor's invoice, which shall be accompanied by sufficient supporting documentation and contain sufficient detail, to allow a proper audit of expenditures, should City require one to be performed. 6. PROPRIETARY INFORMATION: Secondary Contractor understands and agrees that any information, document, report or any other material whatsoever, including all computer software which is given by City to Secondary Contractor or which is otherwise obtained or prepared by Secondary Contractor pursuant to or under the terms of this Agreement is and shall at all times remain property of the City. Secondary Contractor agrees not to use any such information, document, report or material for any other purpose whatsoever without the written consent of City, which may be withheld or conditioned by the City in its sole discretion. 6. OWNERSHIP OF DOCUMENTS: Secondary Contractor understands and agrees that any information, document, report or any other material whatsoever which is given by the City to Secondary Contractor or which is otherwise obtained or prepared by Secondary Contractor pursuant to or under the terms of this Agreement is and shall at all times remain the property of the City. Secondary Contractor agrees not to use any such information, document, M:Orchid Cellmarr 5 report or material for any other purpose whatsoever without the written consent of City, which may be withheld or conditioned by the City in its sole discretion. 7. AUDIT AND INSPECTION RIGHTS: A. City may, at reasonable times, and for a period of up to three (3) years following the date of final payment by City to Secondary Contractor under this Agreement, audit, or cause to be audited, those books and records of Secondary Contractor which are related to Secondary Contractor's performance under this Agreement. Secondary Contractor 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. City may, at reasonable times during the term hereof, inspect Secondary Contractor's facilities and perform such tests, as the City deems reasonably necessary, to determine whether the goods or services required to be provided by Secondary Contractor under this Agreement conform to the terms hereof and/or the terms of the Solicitation Documents, if applicable. Secondary Contractor shall make available to City all reasonable facilities and assistance to facilitate the performance of tests or inspections by City representatives. All tests and inspections shall be subject to, and made in accordance with, the provisions of Section 18-55.2 of the Code of the City of Miami, Florida, as same may be amended or supplemented, from time to time. 8. AWARD OF AGREEMENT: Secondary Contractor represents and warrants to City that it has not employed or retained any person or company employed by City to solicit or secure this Agreement and that it has not offered to pay, paid, or agreed to pay any person M:Orchid CeMmark 6 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: Secondary Contractor understands that the public shall have access, at all reasonable times, to all documents and information pertaining to City contracts, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by City and the public to all documents subject to disclosure under applicable law. Secondary Contractor's failure or refusal to comply with the provisions of this section shall result in the immediate cancellation of this Agreement by City. 10. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS: Secondary Contractor 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. City and Secondary Contractor agree to comply with and observe all applicable laws, codes and ordinances as they may be amended from time to time. 11. INDEMNIFICATION: Secondary Contractor shall indemnify, defend and hold harmless City 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 M:Orchid Cellmark 7 be directly or indirectly caused, in whole or in part, by any act, omission, default or negligence (whether active or passive) of Secondary Contractor or its employees, agents or subcontractors (collectively referred to as "Secondary Contractor"), 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 Secondary Contractor to comply with any of the paragraphs herein or the failure of the Secondary Contractor 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. Secondary Contractor 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 Secondary Contractor, or any of its subcontractors, as provided above, for which the Secondary Contractor's liability to such employee or former employee would otherwise be limited to -payments under state Workers' Compensation or similar laws. 12. DEFAULT: If Secondary Contractor fails to comply with any term or condition of this Agreement, or fails to perform any of its obligations hereunder, then Secondary Contractor shall be in default. Upon the occurrence of a default hereunder City, in addition to all remedies available to it by law, may immediately, upon written notice to Secondary Contractor, terminate this Agreement whereupon all payments, advances, or other compensation paid by City to Secondary Contractor while Secondary Contractor was in default shall be immediately returned to City. Secondary Contractor understands and M:Orchid Cellmark 8 agrees that termination of this Agreement under this section shall not release Secondary Contractor from any obligation accruing prior to the effective date of termination. Should Secondary Contract be unable or unwilling to commence to perform Services within the time provided or contemplated herein, then, in addition to the foregoing, Secondary Contract shall be liable to City for all expenses incurred by City in preparation and negotiation of this Agreement, as well as all costs and expenses incurred by City in the re - procurement of the Services, including consequential and incidental damages. 13. RESOLUTION OF CONTRACT DISPUTES: Secondary Contractor understands and agrees that all disputes between Secondary Contractor 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 Secondary Contract 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. Secondary Contractor 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 $4,500, 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. M:Orchid Cellmark 9 14. CITY'S TERMINATION RIGHTS: A. City shall have the right to terminate this Agreement, in its sole discretion, at any time, by giving written notice to Secondary Contract at least five (5) business days prior to the effective date of such termination. In such event, City shall pay to Secondary Contractor compensation for services rendered and expenses incurred prior to the effective date of termination. In no event shall City be liable to Secondary Contractor for any additional compensation, other than that provided herein, or for any consequential or incidental damages. B. City shall have the right to terminate this Agreement, without notice to Secondary Contractor, upon the occurrence of an event of default hereunder. In such event, City shall not be obligated to pay any amounts to Secondary Contractor and Secondary Contractor shall reimburse to City all amounts received while Secondary Contractor was in default under this Agreement. 15. INSURANCE: Contractor shall, at all times during the term hereof, maintain such insurance coverage as may be required by City. All such insurance, including renewals, shall be subject to the approval of City for adequacy of protection and evidence of such coverage shall be furnished to 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 City. Completed Certificates of Insurance shall be filed with City prior to the performance M:Orchid Cellmark 10 of services hereunder, provided, however, that Secondary Contractor shall at any time upon request file duplicate copies of the policies of such insurance with City. If, in the judgment of City, prevailing conditions warrant the provision by Secondary Contractor of additional liability insurance coverage or coverage which is different in kind, City reserves the right to require the provision by Contractor 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 Secondary Contractor fail or refuse to satisfy the requirement of changed coverage within thirty (30) days following City's written notice, this Agreement shall be considered terminated on the date that the required change in policy coverage would otherwise take effect. 16. NONDISCRIMINATION: Secondary Contractor represents and warrants to City that Secondary Contractor does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with Secondary Contractor's performance under this Agreement on account of race, color, sex, religion, age, handicap, marital status or national origin. Contractor 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 has established a Minority and Women Business Affairs and M:Orchid Celimark 11 Procurement Program (the "M/WBE Program") designed to increase the volume of City 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, Contractor. Contractor 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 Contractor from consideration and participation in future City contracts if Contractor, 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 Secondary Contractor, in whole or in part, without the prior written consent of City's, which may be withheld or conditioned, in City's sole discretion. 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. M:Orchid Cefmark 12 TO SECONDARY CONTRACTOR: TO THE CITY: Orchid Cellmark, Inc. 13988 Diplomat Drive, Suite 100 Farmers Branch, TX 75234 Pedro G. Hernandez, City Manager City of Miami City Hall 3500 Pan American Drive Miami, Florida 33133 20. MISCELLANEOUS PROVISIONS: A. This Agreement shall be construed and enforced according to the laws of the State of Florida. 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. M:Orchid Cellmark 13 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: Contractor has been procured and is being engaged to provide services to City as an independent contractor, and not as an agent or employee of City. Accordingly, Secondary Contractor shall not attain, nor be entitled to, any rights or benefits under the Civil Service or Pension Ordinances of City, nor any rights generally afforded classified or unclassified employees. Secondary Contractor further understands that Florida Workers' Compensation benefits available to employees of City are not available to Secondary Contractor, and agrees to provide workers' compensation insurance for any employee or agent of Secondary Contractor rendering services to City 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: Secondary Contractor hereby reaffirms all of the representations contained in the Solicitation Documents. M:Orchid Cellmark 14 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. 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. "City" CITY OF MIAMI, a municipal ATTEST: corporation By: Priscilla A. Thompson, City Clerk Pedro G. Hernandez M:Orchid Cellmark 15 M:Orchid Cellmark 16 ATTEST: "Secondary Contractor" Print Name: Title: Corporate Secretary APPROVED AS TO FORM AND CORRECTNESS: Julie O. Bru City Attorney APPROVED AS TO INSURANCE REQUIREMENTS: Leeann R. Brehm Risk Management The Bode Technology Group, Inc., a Delaware Corporation By: Print Name: Title: President M:Orchid Cellmark 17