HomeMy WebLinkAboutExhibitCity of Miami, Florida
Attachment D RFP 610384
PROFESSIONAL SERVICES AGREEMENT
By and Between
The City of Miami, Florida
And
Consultant
This Professional Services Agreement ("Agreement") is entered into this day of
, 2019 by and between the City of Miami, a municipal corporation of the State
of Florida, whose address is 444 S.W. 2nd Avenue, 10th Floor, Miami, Florida 33130 ("City"), and,
Law Enforcement Psychological & Counseling Associates, Inc. ("LEPCA"), a corporation whose
principal address is 9960 NW 116th Way, Suite 12, Medley, FL 33178, hereinafter referred to as
the ("Consultant").
RECITALS:
WHEREAS, the City of Miami issued Request for Proposal (RFP) No. 610384 November
7, 2018 (attached hereto, incorporated hereby, and made a part of as Exhibit A) to establish a
Contract for Psychological Screening Services, ("Services" as more fully set forth in the scope of
work "Scope", attached hereto as Exhibit B) for the Miami Police Department; and Consultant's
proposal ("Proposal and Compensation", attached hereto, incorporated hereby, and made part of
hereof as Exhibit C), the City's insurance requirements and the Consultant's Certificate of
Insurance (attached hereto as Exhibit D), Corporate Resolutions (attached hereto as Exhibit E),
and Health Insurance Portability and Accountability Act ("HIPAA") Business Associate Addendum
(attached hereto as Exhibit F) in response thereto, has been selected as a qualified proposal for
the provision of the Services.
WHEREAS, the Evaluation/Selection Committee appointed by the City Manager
determined that the Proposal submitted by the Consultant was responsive to the RFP
requirements and recommended that the City Manager negotiate with the Consultant; and
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WHEREAS, the City wishes to engage the Services of the Consultant, and Consultant
wishes to perform Services for the City; and
WHEREAS, the City and the Consultant desire to enter into this Agreement under the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and promises herein
contained, Consultant and the City agree as follows:
TERMS:
1. RECITALS AND INCORPORATIONS; DEFINITIONS:
The recitals are true and correct and are hereby incorporated into and made a part of this
Agreement. The City's RFP is hereby incorporated into and made a part of this Agreement and
attached hereto as Exhibit "A". The Services and Scope of Work are hereby incorporated into and
made a part of this Agreement and attached hereto as Exhibit "B". Compensation to the
Consultant as Exhibit "C". The Consultant's Insurance Certificate is hereby incorporated into and
made a part of this Agreement as Exhibit "D". The order of precedence whenever there is
conflicting or inconsistent language between documents is as follows in descending order of
priority: (1) Professional Services Agreement ("PSA"); (2) Addenda/Addendum to the RFP, if any;
(3) RFP; and (4) Consultant's response, dated December 12, 2018 acknowledging scope of
services and pricing component of services and, response to the Request for Proposals.
2. TERM:
The Agreement shall become effective on the date on the first page, and shall be for the
duration of five (5) years with one (1) option to renew for additional five (5) year period. The City
Manager shall have the option to extend or terminate the Agreement for convenience, that is, for
any or no cause pursuant to Section 13.
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3. SCOPE OF SERVICES:
A. Consultant agrees to provide the Services as specifically described, and under the
special terms and conditions set forth in Exhibits "A" and "B" hereto, which by this reference is
incorporated into and made a part of this Agreement.
B. Consultant represents to the City that: (i) it possesses all qualifications, licenses,
certificates, authorizations, and expertise required for the performance of the Services, including
but not limited to full qualification to do business in Florida; (ii) it is not delinquent in the payment
of any sums due the City, including payment of permits, fees, occupational licenses, etc., nor in
the performance of any obligations or payment of any monies to the City; (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; (iv) the Services will be performed in
the manner described in Exhibit "A"; and (v) each person executing this Agreement on behalf of
Consultant has been duly authorized to so execute the same and fully bind Consultant as a party
to this Agreement.
C. Consultant shall at all times provide fully qualified, competent and physically
capable employees to perform the Services under this Agreement. The City may require
Consultant to remove any employee the City deems careless, incompetent, insubordinate, or
otherwise objectionable and whose continued services under this Agreement is not in the best
interest of the City.
4. COMPENSATION:
Consultant as its sole compensation for the Services provided, shall receive compensation
as indicated in Exhibit "C", which by this reference is incorporated into and made a part of this
Agreement.
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5. OWNERSHIP OF DOCUMENTS:
Consultant understands and agrees that any information, document, report or any other
material whatsoever which is given by the City to Consultant, its employees, or any sub -
consultant, or which is otherwise obtained or prepared by Consultant solely and exclusively for
the City pursuant to or under the terms of this Agreement, is and shall at all times remain the
property of the City. Consultant agrees not to use any such information, document, report or
material for any other purpose whatsoever without the written consent of the City Manager, which
may be withheld or conditioned by the City Manager in his/her sole discretion. Consultant is
permitted to make and to maintain duplicate copies of the files, records, documents, etc. if
Consultant determines copies of such records are necessary subsequent to the termination of
this Agreement; however, in no way shall the confidentiality as permitted by applicable law be
breached. The City shall maintain and retain ownership of any and all documents which result
upon the completion of the work and Services under this Agreement as per the terms of this
Section 5.
6. AUDIT AND INSPECTION RIGHTS AND RECORDS RETENTION:
A. Consultant agrees to provide access to the City or to any of its duly authorized
representatives, to any books, documents, papers, and records of Consultant which are directly
pertinent to this Agreement, for the purpose of audit, examination, excerpts, and transcripts. The
City may, at reasonable times, and for a period of up to three (3) years following the date of final
payment by the City to Consultant under this Agreement, audit and inspect, or cause to be audited
and inspected, those books, documents, papers, and records of Consultant which are related to
Consultant's performance under this Agreement. Consultant agrees to maintain any and all such
books, documents, papers, and records at its principal place of business for a period of three (3)
years after final payment is made under this Agreement and all other pending matters are closed.
Consultant's failure to adhere to, or refusal to comply with, this condition shall result in the
immediate cancellation of this Agreement by the City.
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B. The City may, at reasonable times during the term hereof, inspect the Consultant's
facilities and perform such tests, as the City deems reasonably necessary, to determine whether
the goods or services required to be provided by Consultant under this Agreement conform to the
terms hereof. Consultant shall make available to the 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 18-101
and 18-102 of the Code of the City of Miami, Florida as same may be amended or supplemented,
from time to time.
7. AWARD OF AGREEMENT:
Consultant represents and warrants to the City that it has not employed or retained any
person or company employed by the City 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.
8. PUBLIC RECORDS:
A. Consultant understands that the public shall have access, at all reasonable times,
to all documents and information pertaining to City Agreements, subject to the provisions of
Chapter 119, Florida Statutes, and agrees to allow access by the City and the public to all
documents subject to disclosure under applicable laws. Consultant's failure or refusal to comply
with the provisions of this section shall result in the immediate cancellation of this Agreement by
the City.
B. Consultant shall additionally comply with Section 119.0701, Florida Statutes,
including without limitation: (1) keep and maintain public records that ordinarily and necessarily
would be required by the City to perform this service; (2) upon request from the City's custodian
of public records, provide the City with a copy of the requested records or allow the records to be
inspected or copied within a reasonable time at a cost that does not exceed the cost provided in
Chapter 119, Florida Statutes, or as otherwise provided by law; (3) ensure that public records that
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are exempt or confidential and exempt from public records disclosure requirements are not
disclosed except as authorized by law for the duration of the contract term and following
completion of the contract if Consultant does not transfer the records to the City; (4) upon
completion of the contract, transfer, at no cost, to the City all public records in possession of the
Consultant or keep and maintain public records required by the City to perform the service, if the
Consultant transfers all public records to the City upon completion of the Agreement, the
Consultant shall destroy any duplicate public records that are exempt or confidential and exempt
from public records disclosure requirements, if the Consultant keeps and maintains public records
upon completion of the Agreement, the Consultant shall meet all applicable requirements for
retaining public records, all records stored electronically must be provided to the City, upon
request from the City's custodian of public records, in a format that is compatible with the
information technology systems of the City. Notwithstanding the foregoing, Consultant shall be
permitted to retain any public records that make up part of its work product solely as required for
archival purposes, as required by law, or to evidence compliance with the terms of the Agreement.
C. Should Consultant determine to dispute any public access provision required by
Florida Statutes, then Consultant shall do so in accordance with the provisions of chapter 119,
Florida Statutes, at its own expense and at no cost to the City. IF THE CONSULTANT
HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119,
FLORIDA STATUTES, TO THE CONSULTANT'S DUTY TO PROVIDE
PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE
CUSTODIAN OF PUBLIC RECORDS AT (305) 416-1800, VIA EMAIL AT
PUBLICRECORDS@MIAMIGOV.COM, OR REGULAR EMAIL AT CITY
OF MIAMI OFFICE OF THE CITY ATTORNEY, 444 SW 2ND AVENUE, 9TH
FL, MIAMI, FL 33130. THE CONSULTANT MAY ALSO CONTACT THE
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RECORDS CUSTODIAN AT THE CITY OF MIAMI DEPARTMENT WHO IS
ADMINISTERING THIS CONTRACT.
9. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS: (Non -Negotiable)
Consultant understands that agreements with local governments are subject to certain
laws and regulations, including laws pertaining to public records, conflict of interest, record
keeping, etc. City and Consultant agree to comply with and observe all such applicable federal,
state and local laws, rules, regulations, codes and ordinances, as they may be amended from
time to time.
Consultant further agrees to include in all of Consultant's agreements with sub -consultants
for any Services related to this Agreement this provision requiring sub -consultants to comply with
and observe all applicable federal, state, and local laws rules, regulations, codes and ordinances,
as they may be amended from time to time.
10. INDEMNIFICATION: (Non -Negotiable)
Consultant shall indemnify, hold and save harmless, and defend (at its own cost and expense),
the City, its officers, agents, directors, and/or employees, from all liabilities, damages, losses,
judgements, and costs, including, but not limited to, reasonable attorney's fees, to the extent
caused by the negligence, recklessness, negligent act or omission, or intentional wrongful
misconduct of Consultant and persons employed or utilized by Consultant in the performance of
this Contract. Consultant shall further, hold the City, its officials and employees, indemnify, save
and hold harmless for, and defend (at its own cost), the City its officials and/or employees against
any civil actions, statutory or similar claims, injuries or damages arising or resulting from the
permitted Work, even if it is alleged that the City, its officials, and/or employees were negligent.
In the event that any action or proceeding is brought against the City by reason of any such claim
or demand, the Consultant shall, upon written notice from the City, resist and defend such action
or proceeding by counsel satisfactory to the City. The Consultant expressly understands and
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agrees that any insurance protection required by this Contract or otherwise provided by the
Consultant shall in no way limit the responsibility to indemnify, keep and save harmless and
defend the City or its officers, employees, agents and instrumentalities as herein provided.
The indemnification provided above shall obligate the Consultant to defend, at its own
expense, to and through trial, administrative, appellate, supplemental or bankruptcy proceeding,
or to provide for such defense, at the City's option, any and all claims of liability and all suits and
actions of every name and description which may be brought against the City, whether performed
by the Consultant, or persons employed or utilized by Consultant.
These duties will survive the cancellation or expiration of the Contract. This Section will
be interpreted under the laws of the State of Florida, including without limitation and interpretation,
which conforms to the limitations of Sections 725.06 and/or 725.08, Florida Statutes, as applicable
and as amended.
Consultant shall require all sub -consultant agreements to include a provision that each
sub -consultant will indemnify the City in substantially the same language as this Section. The
Consultant agrees and recognizes that the City shall not be held liable or responsible for any
claims which may result from any actions or omissions of the Consultant in which the City
participated either through review or concurrence of the Consultant's actions. In reviewing,
approving or rejecting any submissions by the Consultant or other acts of the Consultant, the City,
in no way, assumes or shares any responsibility or liability of the Consultant or sub -consultant
under this Contract.
Ten dollars ($10) of the payments made by the City constitute separate, distinct, and
independent consideration for the granting of this Indemnification, the receipt and sufficiency of
which is voluntarily and knowingly acknowledged by the Consultant.
11. DEFAULT:
If Consultant fails to comply materially with any term or condition of this Agreement, or
fails to perform in any material way any of its obligations hereunder, and fails to cure such failure
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after reasonable notice from the City, then Consultant shall be in default. Consultant understands
and agrees that termination of this Agreement under this section shall not release Consultant from
any obligation accruing prior to the effective date of termination. Upon the occurrence of a default
hereunder the City, 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 the City to Consultant while Consultant was in default shall be immediately
returned to the City.
Should Consultant be unable or unwilling to commence to perform the Services within the
time provided or contemplated herein, then, in addition to the foregoing, Consultant shall be liable
to the City for all expenses incurred by the City in preparation and negotiation of this Agreement,
as well as all costs and expenses incurred by the City in the re -procurement of the Services,
including consequential and incidental damages.
12. RESOLUTION OF AGREEMENT DISPUTES:
Consultant understands and agrees that all disputes between Consultant and the City
based upon an alleged violation of the terms of this Agreement by the City shall be submitted to
the City Manager for his/her resolution, prior to Consultant being entitled to seek judicial relief in
connection therewith. In the event that the amount of compensation hereunder exceeds Twenty -
Five Thousand Dollars and No/Cents ($25,000), the City Manager's decision shall be approved
or disapproved by the City Commission. Consultant 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 Twenty -Five Thousand Dollars and
No/Cents ($25,000), 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 or
ninety (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. In no event may the amount of compensation under this Section exceed the
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total compensation set forth in Section 4 of this Agreement. The adherence to this Section is the
condition precedent to the institution of any civil action by the Consultant against the City.
13. TERMINATION; OBLIGATIONS UPON TERMINATION: (Non -Negotiable)
A. The City, acting by and through its City Manager, shall have the right to terminate
this Agreement, in its sole discretion, and without penalty, at any time, by giving written notice to
Consultant at least thirty (30) calendar days prior to the effective date of such termination. In
such event, the City shall pay to Consultant compensation for Services rendered and approved
expenses incurred prior to the effective date of termination. In no event shall the City be liable to
Consultant for any additional compensation and expenses incurred, other than that provided
herein, and in no event shall the City be liable for any consequential or incidental damages. The
Consultant shall have no recourse or remedy against the City for a termination under this
subsection except for payment of fees due prior to the effective date of termination.
B. The City, by and acting through its City Manager, shall have the right to terminate
this Agreement, in its sole discretion, and without penalty, upon the occurrence of an event of a
material breach hereunder, and failure to cure the same within thirty (30) days after written notice
of default. In such event, the City shall not be obligated to pay any amounts to Consultant for
Services rendered by Consultant after the date of termination, but the parties shall remain
responsible for any payments that have become due and owing as of the effective date of
termination. In no event shall the City be liable to Consultant for any additional compensation and
expenses incurred, other than that provided herein, and in no event shall the City be liable for any
direct, indirect, consequential or incidental damages. This Section shall survive the cancellation
or expiration of this Agreement.
14. INSURANCE:
A. Consultant shall, at all times during the term hereof, maintain such insurance
coverage(s) as may be required by the City. The insurance coverage(s) required as of the
Effective Date of this Agreement are attached hereto as Exhibit "C" and incorporated herein by
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this reference. The Consultant shall add the City of Miami as an additional insured to its
commercial general liability, and auto liability policies, and as a named certificate holder on all
policies. Consultant shall correct any insurance certificates as requested by the City's Risk
Management Administrator. All such insurance, including renewals, shall be subject to the
approval of the City for adequacy of protection and evidence of such coverage(s) and shall be
furnished to the City Risk Management Administrator on Certificates of Insurance indicating such
insurance to be in force and effect and any cancelled or non -renewed policy will be replaced with
no coverage gap and a current Certificate of Insurance will be provided. Completed Certificates
of Insurance shall be filed with the City prior to the performance of Services hereunder, provided,
however, that Consultant shall at any time upon request file duplicate copies of the Certificate of
Insurance with the City.
B. If, in the judgment of the City, prevailing conditions warrant the provision by
Consultant of additional liability insurance coverage or coverage which is different in kind, the City
reserves the right to require the provision by Consultant 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 Consultant fail or refuse to satisfy the requirement of changed coverage within thirty (30) days
following the City's written notice, this Agreement shall be considered terminated on the date that
the required change in policy coverage would otherwise take effect.
C. Consultant understands and agrees that any and all liabilities regarding the use of
any of Consultant's employees or any of Consultant's sub -consultants for Services related to this
Agreement shall be borne solely by Consultant throughout the term of this Agreement and that
this provision shall survive the termination of this Agreement. Consultant further understands and
agrees that insurance for each employee of Consultant and each sub -consultant providing
Services related to this Agreement shall be maintained in good standing and approved by the City
Risk Management Administrator throughout the duration of this Agreement.
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D. Consultant shall be responsible for assuring that the insurance certificates required
under this Agreement remain in full force and effect for the duration of this Agreement, including
any extensions hereof. If insurance certificates are scheduled to expire during the term of this
Agreement and any extension hereof, Consultant shall be responsible for submitting new or
renewed insurance certificates to the City's Risk Management Administrator as soon as
coverages are bound with the insurers. In the event that expired certificates are not replaced, with
new or renewed certificates which cover the term of this Agreement and any extension thereof:
(i)
the City shall suspend this Agreement until such time as the new or renewed
certificate(s) are received in acceptable form by the City's Risk Management
Administrator; or
(ii) the City may, at its sole discretion, terminate the Agreement for cause and seek
re -procurement damages from Consultant in conjunction with the violation of the terms
and conditions of this Agreement.
E. Compliance with the foregoing requirements shall not relieve Consultant of its
liabilities and obligations under this Agreement.
15. NONDISCRIMINATION:
Consultant represents to the City that Consultant does not and will not engage in
discriminatory practices and that there shall be no discrimination in connection with Consultant's
performance under this Agreement on account of race, color, sex, religion, age, handicap, marital
status or national origin. Consultant 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.
16. ASSIGNMENT:
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This Agreement shall not be assigned by Consultant, in whole or in part, and Consultant
shall not assign any part of its operations, without the prior written consent of the City Manager,
which may be withheld or conditioned, in the City's sole discretion through the City Manager.
17. NOTICES:
AM 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 CONSULTANT: TO THE CITY:
Emilio T. Gonzalez, Ph.D.
City Manager
444 SW 2"d Avenue, 10th Floor
Miami, FL 33128-1910
Victoria Mendez
City Attorney
444 SW 2"d Avenue, 9th Floor
Miami, FL 33128-1910
Jorge Colina
Chief of Police
400 NW 2"d Ave
Miami, FL 33128
Annie Perez, CPPO
Procurement Director
444 SW 2"d Avenue, 6th Floor
Miami, FL 33130-1910
18. MISCELLANEOUS PROVISIONS:
A. This Agreement shall be construed and enforced according to the laws of the State
of Florida. Venue in any proceedings between the parties shall be in Miami -Dade County, Florida.
Each party shall bear its own attorney's fees. Each party waives any defense, whether asserted
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by motion or pleading, that the aforementioned courts are an improper or inconvenient venue.
Moreover, the parties consent to the personal jurisdiction of the aforementioned courts and
irrevocably waive any objections to said jurisdiction. The parties irrevocably waive any rights to a
jury trial.
B. 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.
C. 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 the 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.
D. Consultant shall comply with all applicable laws, rules and regulations in the
performance of this Agreement, including but not limited to licensure, and certifications required
by law for professional service Consultants.
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. Except as otherwise set forth in Section
2 above, the City Manager shall have the sole authority to extend, amend, or modify this
Agreement on behalf of the City. All changes and/or modifications to this Agreement shall be
approved in advance and in writing by the Office of the City Attorney as to legal form and
correctness, and executed in writing by the City and the Consultant.
F. Title and paragraph headings are for convenient reference and are not a part of
this Agreement.
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G. Nothing contained in this Agreement is any way intended to be a waiver of the
limitation placed upon the Indemnitees' liability as set forth in Chapter 768, Florida Statutes.
Additionally, the Indemnitees do not waive sovereign immunity, and no claim or award against
the Indemnitees shall include attorney's fees, investigative costs or pre -judgment interest.
19. SUCCESSORS AND ASSIGNS:
This Agreement shall be binding upon the parties hereto, their heirs, executors, legal
representatives, successors, or assigns, if any.
20. INDEPENDENT CONSULTANTS:
Consultant has been procured and is being engaged to provide Services to the City as an
Independent Consultant, and not as an agent or employee of the City. Accordingly, neither
Consultant, nor its employees, nor any sub -consultant hired by Consultant to provide any Services
under this Agreement shall 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. Consultant further understands that Florida Workers' Compensation benefits
available to employees of the City are not available to Consultant, its employees, or any sub -
consultant hired by Consultant to provide any Services hereunder, and Consultant agrees to
provide or to require sub-consultant(s) to provide, as applicable, workers' compensation
insurance for any employee or agent of Consultant rendering Services to the City under this
Agreement. Consultant further understands and agrees that Consultant's or sub -consultants' use
or entry upon City properties shall not in any way change its or their status as an Independent
Consultant.
The Consultant does not have the power or authority to bind the City in any promise,
agreement, or representation other than specifically provided for in this Agreement.
21. 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
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due to lack of funds, reduction of funds, failure to allocate or appropriate funds, and/or change in
applicable laws or regulations, upon thirty (30) days written notice to the Consultant.
22. FORCE MAJEURE:
A "Force Majeure Event" shall mean an act of God, act of governmental body or military
authority, fire, explosion, power failure, flood, storm, hurricane, sink hole, other natural disasters,
epidemic, riot or civil disturbance, war or terrorism, sabotage, insurrection, blockade, or
embargo. In the event that either party is delayed in the performance of any act or obligation
pursuant to or required by the Agreement by reason of a Force Majeure Event, the time for
required completion of such act or obligation shall be extended by the number of days equal
to the total number of days, if any, that such party is actually delayed by such Force Majeure
Event. The party seeking delay in performance shall give notice in writing, within two (2) days
of the Force Majeure Event, to the other party specifying the anticipated duration of the delay,
and if such delay shall extend beyond the duration specified in such notice, additional notice
shall be repeated no less than monthly so long as such delay due to a Force Majeure Event
continues. Any party seeking delay in performance due to a Force Majeure Event shall use its
best efforts to rectify any condition causing such delay and shall cooperate with the other party
to overcome any delay that has resulted.
23. CITY NOT LIABLE FOR DELAYS:
Consultant hereby understands and agrees that in no event shall the City be liable for,
or responsible to Consultant or any sub -consultant, or to any other person, firm, or entity for or
on account of, any stoppages or delay(s) in work herein provided for, or any damages
whatsoever related thereto, because of any injunction or other legal or equitable proceedings
or on account of any delay(s) for any cause over which the City has no control.
24. USE OF NAME:
Consultant understands and agrees that the City is not engaged in research for
advertising, sales promotion, or other publicity purposes. Consultant is allowed, within the limited
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scope of normal and customary marketing and promotion of its work, to use the general results
of this project and the name of the City. The Consultant agrees to protect any confidential
information provided by the City and will not release information of a specific nature without prior
written consent of the City Manager or the City Commission.
25. NO CONFLICT OF INTEREST:
Pursuant to City of Miami Code Section 2-611, as amended ("City Code"), regarding
conflicts of interest, Consultant hereby certifies to the City that no individual member of
Consultant, no employee, and no sub -consultant under this Agreement nor any immediate family
member of any of the same is also a member of any board, commission, or agency of the City.
Consultant hereby represents and warrants to the City that throughout the term of this Agreement,
Consultant, its employees, and its sub -consultants will abide by this prohibition of the City Code.
26. NO THIRD -PARTY BENEFICIARY:
No persons other than the Consultant and the City (and their successors and assigns)
shall have any rights whatsoever under this Agreement.
27. SURVIVAL:
All obligations (including but not limited to indemnity and obligations to defend and hold
harmless) and rights of any party arising during or attributable to the period prior to expiration or
earlier termination of this Agreement shall survive such expiration or earlier termination.
28. TRUTH -IN -NEGOTIATION CERTIFICATION, REPRESENTATION AND WARRANTY:
Consultant hereby certifies, represents and warrants to the City that on the date of
Consultant's execution of this Agreement, and so long as this Agreement shall remain in full force
and effect, the wage rates and other factual unit costs supporting the compensation to Consultant
under this Agreement are and will continue to be accurate, complete, and current. Consultant
understands, agrees and acknowledges that the City shall adjust the amount of the compensation
and any additions thereto to exclude any significant sums by which the City determines the
contract price of compensation hereunder was increased due to inaccurate, incomplete, or non-
17
City of Miami, Florida
Attachment D RFP 610384
current wage rates and other factual unit costs. All such contract adjustments shall be made within
one (1) year of the end of this Agreement, whether naturally expiring or earlier terminated pursuant
to the provisions hereof.
29. COUNTERPARTS:
This Agreement may be executed in three (3) or more counterparts, each of which shall
constitute an original, but all of which, when taken together, shall constitute one and the same
agreement.
30. ENTIRE AGREEMENT:
This instrument and its exhibits 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.
18
City of Miami. Florida
Attachment D RFP 610384
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:
Todd B. Hannon, City Clerk Emilio T. Gonzalez, Ph.D., City Manager
ATTEST: "Consultant"
By:
Print Name: Print Name: 'j(L1 A144-(Q r PD A-2PP
Title:
(Corporate Seal)
Title: i/2E-S
(Authorized Corporate Officer)
APPROVED AS TO LEGAL FORM APPROVED AS TO INSURANCE
AND CORRECTNESS: REQUIREMENTS:
Victoria Mendez Ann -Marie Sharpe
City Attorney Risk Management Director
19
City of Miami, Florida
Attachment D RFP 610384
CORPORATE RESOLUTION
(This Resolution needs to authorize the signatory to sign)
WHEREAS, ., a , desires to
enter into an agreement with the City of Miami for the purpose of performing the services
described in the contract to which this resolution is attached; and
WHEREAS, the Board of Directors at a duly held corporate meeting has considered the
matter in accordance with the bylaws of the corporation;
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS that this
corporation is authorized to enter into the Agreement with the City, and the President and the
Secretary are hereby authorized and directed to execute the Agreement in the name of this
Corporation and to execute any other document and perform any acts in connection therewith as
may be required to accomplish its purpose.
IN WITNESS WHEREOF, this 10 day of JUtJ F , 2019.
LAW Qf1ciUENr �Str.ttOCcl1L�Yt. 19 (C Nsultanxt"") 11 �I
An Ft.,0l(1-10A— (State) Corporation
By: (Sign)
Print Name_ /1 1t1 PAI9 1,19
Title: V(2-6C 10 l--
Print Name:
(Sign)
20
City of Miami, Florida
Attachment D
EXHIBIT A
RFP 610384
RFP 610384
21
City of Miami, Florida
Attachment D RFP 610384
EXHIBIT B
SCOPE OF SERVICES
22
City of Miami, Florida
Attachment D RFP 610384
EXHIBIT C
PROPOSAL AND COMPENSATION
23
City of Miami, Florida
Attachment D RFP 610384
EXHIBIT D
INSURANCE REQUIREMENTS
INSURANCE REQUIREMENTS FOR A CERTIFICATE OF INSURANCE -
PSYCHOLOGICAL SCREENING SERVICES
(1) Worker's Compensation
A. Limits of Liability - Statutory - State of Florida - Waiver of Subrogation
(2) Commercial General Liability (Primary & Non -Contributory):
A. Limits of Liability
Bodily Injury and Property Damage Liability - Each Occurrence: $1,000,000
General Aggregate Limit: $2,000,000
Personal and Adv. Injury: $1,000,000
Products and Completed Operations: $1,000,000.
B. Endorsements Required:
City of Miami included as an Additional insured. Employees included as
insured. Contractual Liability.
(3) Business Automobile Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability Combined Single Limit. Owned/Scheduled
Autos including Hired, Borrowed or or Non -Owned Autos used in connection with the
work - Any One Accident: $1,000,000
B. Endorsements Required:
City of Miami included as an Additional Insured
(4) Employer's Liability
A. Limits of Liability
$100,000 for bodily injury caused by an accident, each accident
$100,000 for bodily injury caused by disease, each employee
$500,000 for bodily injury caused by disease, policy limit
(5) Professional Liability/Errors and Omissions Coverage
Combined Single Limit, Each Claim: $1,000,000
General Aggregate Limit: $1,000,000
Deductible: Not to Exceed 10%
BINDERS ARE UNACCEPTABLE.
The insurance coverage required shall include those classifications, as listed in standard liability
insurance manuals, which most nearly reflect the operations of the Proposer.
All insurance policies required above shall be issued by companies authorized to do business
under the laws of the State of Florida, with the following qualifications:
The Company must be rated no less than "A" as to management, and no less than "Class V" as to
financial strength, by the latest edition of Best's Insurance Guide, published by A.M. Best
24
City of Miami, Florida
Attachment D RFP 610384
Company, Oldwick, New Jersey, or its equivalent. All policies and/or certificates of insurance
are subject to review and verification by Risk Management prior to insurance approval.
Certificates will indicate no modification or change in insurance shall be made without
thirty (30) days written advance notice to the certificate holder.
NOTE: CITY BID NUMBER AND/OR TITLE OF BID MUST APPEAR ON EACH
CERTIFICATE.
Compliance with the foregoing requirements shall not relieve the Proposer of his liability and
obligation under this section or under any other section of this Agreement.
--If insurance certificates are scheduled to expire during the contractual period, the Proposer
shall be responsible for submitting new or renewed insurance certificates to the City at a
minimum of ten (10) calendar days in advance of such expiration.
--In the event that expired certificates are not replaced with new or renewed certificates
which cover the contractual period, the City shall:
(4) Suspend the contract until such time as the new or renewed certificates are received by the
City in the manner prescribed in the Invitation To Bid.
(5) The City may, at its sole discretion, terminate this contract for cause and seek re -
procurement damages from the Proposer in conjunction with the General and Special Tends and
Conditions of the Bid.
The Proposer shall be responsible for assuring that the insurance certificates required in
conjunction with this Section remain in force for the duration of the contractual period; including
any and all option terms that may be granted to the Proposer.
25
City of Miami, Florida
Attachment D RFP 610384
EXHIBIT E
CORPORATE RESOLUTIONS
AND EVIDENCE OF QUALIFICATION TO DO BUSINESS IN FLORIDA
(To be provided upon document execution)
26
City of Miami, Florida
Attachment D RFP 610384
EXHIBIT F
HIPAA ASSOCIATE ADDENDUM
)7
Attachment E
APPENDIX A
HIPAA BUSINESS ASSOCIATE ADDENDUM
This HIPAA Business Associate Addendum ("Addendum") supplements and is made a part of the
Agreement by and between City of Miami ("City"), a municipal corporation of the State of Florida,
and , Business Associate ("Associate").
RECITALS
A. As part of the Agreement, it is necessary for the City to disclose certain information
("Information") to Associate pursuant to the terms of the Agreement, some of which may
constitute Protected Health Information ("PHI").
B. Cityand Associate intend to protect the privacy and provide for the security of PHI, including
but not limited to, PHI, disclosed to Associate pursuant to the Agreement in compliance with
the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 ("HIPAA")
and regulations promulgated thereunder by the U.S. Department of Health and Human
Services (the "HIPAA Regulations") and other applicable laws.
C. The purpose of this Addendum is to satisfy certain standards and requirements of HIPAA and
the HIPAA Regulations, including, but not limited to, Title 45, Sections 164.308(b), 164.314(a),
164.502(e) and 164.504(e) of the Code of Federal Regulations ("CFR"'), as the same may be
amended from time to time.
In consideration of the mutual promises below and the exchange of information pursuant to the
Agreement, the parties agree as follows:
1. Definitions. Terms used, but not otherwise defined, shall have the same meaning as
those terms in 45 CFR Sections 160.103, 164.304 and 164.501.
a. "Business Associate" shall have the meaning given to such term under the HIPAA
Regulations, including, but not limited to, 45 CFR Section 160.103.
b. "Covered Entity" shall have the meaning given to such term under HIPAA and the
HIPAA Regulations, including, but not limited to, 45 CFR Section 160.103.
Attachment E
c. "Protected Health Information" or "PHI" means any information, whether oral or
recorded in any form or medium: (i) that relates to the past, present or future physical or mental
condition of an individual, the provision of health care to an individual, or the past, present or
future payment for the provision of health care to an individual; and (ii) that identifies the individual
or with respect to which there is a reasonable basis to believe the information can be used to
identify the individual, and shall have the meaning given to such term under HIPAA and the HIPAA
Regulations, including, but not limited to 45 CFR Section 1103. [45 CFR Parts 160, 162 and 164]
d. "Electronic Protected Health Information" or "ePHI" means any information that is
transmitted or maintained in electronic media: (i) that relates to the past, present or future physical
or mental condition of an individual, the provision of health care to an individual, or the past,
present or future payment for the provision of health care to an individual. and (ii) that identifies
the individual or with respect to which there is a reasonable basis to believe the information can
be used to identify the individual, and shall have the meaning given to such term under HIPAA
and the HIPAA Regulations, including, but not limited to 45 CFR Section 160.103. [45 CFR Parts
160, 162 and 164]
e. "Electronic Media" shall have the meaning given to such term under HIPAA and
the HIPAA Regulations, including but not limited to, 45 CFR Section 160.103.
f. "Security incident" shall have the meaning given to such term under HIPAA and
the HIPAA Regulations, including but not limited to, 45 CFR Section 164.304.
2. Obligations of Associate.
a. Permitted Uses and Disclosures. Associate may use and/or disclose PHI received
by Associate pursuant to the Agreement ("City's PHI") solely in accordance with the specifications
set forth in the Scope of Services, Appendix A. In the event of any conflict between this Addendum
and Appendix A, this Addendum shall control. [45 CFR § 164.504(e)(2)(i)]
b. Nondisclosure. Associate shall not use or further disclose City's PHI other than as
permitted or required by law. [45 CFR § 164.504(e)(2)(ii)(A)]
c. Safeguards. Associate shall use appropriate safeguards to prevent use or
disclosure of City's PHI in a manner other than as provided in this Addendum. [45 CFR §
164.504(e)(2)(ii)(B)] Associate shall maintain a comprehensive written information security
program that includes administrative, technical and physical safeguards appropriate to the size
and complexity of the Associate's operations and the nature and scope of its activities.
Appropriate safeguards used by Associate shall protect the confidentiality, integrity, and
availability of the PHI and ePHI that is created, received, maintained, or transmitted on behalf of
the County. [45 CFR § 164.314(a)(2)(i)(A)] City has at its sole discretion, the option to audit and
inspect, the Associate's safeguards at any time during the life of the Agreement, upon reasonable
notice being given to Associate for production of documents and coordination of inspection(s).
Attachment E
d. Reporting of Disclosures. Associate shall report to the City's Project Manager, any
use or disclosure of the City's PHI in a manner other than as provided in this Addendum. [45 CFR
§ 164.504(e)(2)(ii)(c)] Associate shall report to the City through the City's Project Manager, any
security incident of which it becomes aware within forty-eight (48) hours of discovery of the
incident. [45 CFR § 164.314(a)(2)(i)(C)]
e. Associate's Agents. Associate agrees and shall ensure that any agents, including
subcontractors, to whom it provides PHI received from (or created or received by Associate on
behalf of) the City, agrees in writing to the same restrictions and conditions that apply to Associate
with respect to such PHI and that such agents conduct their operations within the United States.
Associate agrees and shall ensure that any agents, including subcontractors, to whom it provides
ePHI received, created, maintained, or transmitted on behalf of the City, agrees in writing to
implement reasonable and appropriate safeguards to protect the confidentiality, integrity, and
availability of that ePHI. [45 CFR § 164.314(a)(2)(i)(B)] In no case may Associate's Agents reside
and operate outside of the United States.
f. Documentation of Disclosures. Associate agrees to document disclosures of the
City's PHI and information related to such disclosures as would be required for the City to respond
to a request by an individual for an accounting of disclosures of PHI. Associate agrees to provide
the City or an individual, in a time and manner designated by the City, information collected in
accordance with the Agreement, to permit the City to respond to such a request for an accounting.
[45 CFR § 164.528]
g. Availability of Information to County. Associate shall make available to the City
such information as the City may require to fulfill the City's obligations to provide access to,
provide a copy of, and account for, disclosures of PHI pursuant to HIPAA and the HIPAA
Regulations, including, but not limited to, 45 CFR Sections 164.524 and 164.528. [45 CFR §
164.504(e)(2)(ii)(E) and (G)]
h. Amendment of PHI. Associate shall make the City's PHI available to the City as
may be required to fulfill the City's obligations to amend PHI pursuant to HIPAA and the HIPAA
Regulations, including, but not limited to, 45 CFR Section 164.526 and Associate shall, as
directed by the City, incorporate any amendments to the City's PHI into copies of such PHI
maintained by Associate, and in the time and manner designated by the County. [45 CFR §
164.504(e)(2)(ii)(F)]
Internal Practices. Associate shall make its internal practices, books and records
relating to the use and disclosure of the City's PHI (or PHI created or received by Associate on
behalf of the County) available to the City and to the Secretary of the U.S. Department of Health
and Human Services in a time and manner designated by the City or the Secretary for purposes
of determining Associate's compliance with HIPAA and the HIPAA Regulations. [45 CFR §
164.504(e)(2)(ii)(H) and 45 CFR Part 64, Subpart C.]
Attachment E
j. Mitigation. Associate agrees to mitigate, to the extent practicable, any harmful
effect that is known to Associate of a use or disclosure of the City's PHI by Associate in violation
of the requirements of this Addendum.
k. Associate's Insurance. Associate agrees to maintain the insurance coverage
provided in the Agreement.
Notification of Breach. Associate shall notify the City within twenty-four (24) hours,
and shall provide written notice no later than forty-eight (48) hours of any suspected or actual
breach of security, intrusion or unauthorized disclosure of PHI and/or any actual or suspected
disclosure of data in violation of any applicable federal or state laws or regulations. Associate
shall take (i) prompt corrective action to cure any such deficiencies, and (ii) any action pertaining
to such unauthorized disclosure required by applicable federal and state laws and regulations.
m. Expenses. Any and all expenses incurred by Associate in compliance with the
terms of this Addendum or in compliance with the HIPAA Regulations shall be borne by Associate.
n. No Third Party Beneficiary. The provisions and covenants set forth in this
Agreement are expressly entered into only by and between Associate and the City and are
intended only for their benefit. Neither Associate nor the City intends to create or establish any
third -party beneficiary status or right (or the equivalent thereof) in any other third party nor shall
any other third party have any right to enforce or enjoy any benefit created or established by the
provisions and covenants in this Agreement.
3. Audits, Inspection and Enforcement. From time to time, after reasonable notice, upon
any breach of this Addendum by Associate, the City may inspect the facilities, systems, books
and records of Associate to monitor compliance with this Addendum. Associate shall promptly
remedy any violation of this Addendum and shall certify the same to the City in writing. The fact
that the City inspects, or fails to utilize its right to inspect, Associate's facilities, systems, books,
records, and procedures does not relieve Associate of its responsibility to comply with this
Addendum, nor does the City's (i) failure to detect or (ii) detection, but failure to notify Associate
or require Associate to remedy such breach, constitute acceptance of such practice or a waiver
of the City's enforcement rights under this Addendum.
4. Termination.
a. Material Breach. A breach by Associate of any provision of this Addendum, shall
constitute a material breach of the Agreement and shall provide grounds for immediate
termination of the Agreement by the County. [45 CFR § 164.504(e)(3) and 45 CFR §
164.314(a)(2)(i)(D)]
b. Termination for Cause - Reasonable Steps to Cure Breach. If the City recognizes
a pattern of activity or practice of Associate that constitutes a material breach or violation of the
Associate's obligations under the provisions of this Addendum and does not terminate the
Agreement pursuant to Section 4a, above, the City may provide an opportunity for Associate to
end the violation or cure the breach within five (5) days, or other cure period as may be specified
in the Agreement. If Associate does not cure the breach or end the violation within the time period
provided, the City may immediately terminate the Agreement.
Attachment E
c. Judicial or Administrative Proceedings. The City may terminate the Agreement,
effective immediately, if (i) Associate is named as a defendant in a criminal or administrative
proceeding for a violation of HIPAA, or (ii) a finding or stipulation that Associate has violated any
standard or requirement of the HIPAA Regulations (or other security or privacy law) is made in
any administrative or civil proceeding.
d. Effect of Termination. Upon termination of the Agreement for any reason,
Associate shall return or destroy as directed by the City, all PHI, including but not limited to ePHI,
received from the City (or created or received by Associate on behalf of the County) that Associate
still maintains in any form. This provision shall also apply to the City PHI that is in the possession
of subcontractors or agents of Associate. Associate shall retain no copies of such PHI or, if return
or destruction is not feasible, Associate shall provide to the City notification of the conditions that
make return or destruction infeasible, and shall continue to extend the protections of this
Addendum to such information, and limit further use or disclosure of such PHI to those purposes
that make the return or destruction of such PHI infeasible. [45 CFR § 164.504(e)(2)(ii)(I)]
5. Indemnification. Associate shall indemnify and hold harmless the City, and its officers,
employees, trustees, agents, and instrumentalities (the indemnified parties) from any and all
liability, losses or damages, including attorneys' fees and costs of defense, which the City, or its
officers, trustees, employees, agents or instrumentalities may incur as a result of claims,
demands, suits, causes of actions or proceedings of any kind or nature arising out of, relating to,
or resulting from the performance of this Addendum by Associate or its employees, agents,
servants, partners, principals, or subcontractors. Associate shall pay all claims and losses in
connection therewith and shall investigate and defend all claims, suits, or actions of any kind or
nature in the name of any of the indemnified parties, where applicable, including appellate
proceedings, and shall pay all costs, judgments, and attorney's fees which may issue thereon.
Associate expressly understands and agrees that any insurance protection required by this
Addendum, or otherwise provided by Associate, shall in no way limit the responsibility to
indemnify, keep and save harmless and defend the indemnified parties as herein provided. This
paragraph shall survive the termination of the Agreement.
6. Limitation of Liability. Nothing in this Addendum shall be construed to affect or limit the
City's sovereign immunity as set forth in Florida Statutes, Section 768.28.
7. Amendment.
a. Amendment to Comply with Law. The parties acknowledge that state and federal
laws relating to the security and privacy of PHI, including electronic data, are rapidly evolving
and that amendment of this Addendum may be required to provide for procedures to ensure
compliance with such developments. The parties specifically agree to take such action as is
necessary to implement the standards and requirements of HIPAA, the HIPAA Regulations and
other applicable laws relating to the security or confidentiality of PHI. The parties understand and
agree that the City must receive satisfactory written assurance from Associate that Associate will
adequately safeguard all PHI that it receives or creates pursuant to this Agreement. Upon the
City's request, Associate agrees to promptly enter into an amendment to the Agreement
embodying written assurances consistent with the standards and requirements of HIPAA, the
HIPAA Regulations or other applicable laws. The City, in addition to any other remedies including
specific performance, may terminate the Agreement upon five (5) days' written notice in the event
Attachment E
Associate does not enter into said amendment to the Agreement providing assurances regarding
the safeguarding of PHI that the City, in its sole discretion, deems sufficient to satisfy the
standards and requirements of HIPAA and the HIPAA Regulations. Notwithstanding Associate's
failure to enter into an amendment, Associate shall comply with all provisions of the HIPAA laws.
b. Amendment of Appendix A. In addition to amendments described in 7a above,
Appendix A may otherwise be modified or amended by written mutual agreement of the parties
without amendment of the remainder of this Agreement."
8. Assistance in Litigation or Administrative Proceedings. Associate shall make itself,
and any subcontractors, employees or agents assisting Associate in the performance of its
obligations under this Agreement, available to the City at the City's convenience upon reasonable
notice, at no cost to the City, to testify as witnesses, for document production, or otherwise, in the
event of litigation or administrative proceedings being commenced against the City, its trustees,
officers, agents or employees based upon claimed violation of HIPAA, the HIPAA Regulations or
other laws relating to security and privacy, except where Associate or its subcontractor, employee
or agent is a named adverse party.
9. Effect on Agreement. Except as specifically required to implement the purposes of this
Addendum, or to the extent inconsistent with this Addendum, all other terms of the Agreement
shall remain in force and effect. In the event of any conflict between this Addendum and
Agreement, this Addendum shall control.
10. Interpretation. This Addendum and the Agreement shall be interpreted as broadly as
necessary to implement and comply with HIPAA, the HIPAA Regulations and applicable Florida
laws. The parties agree that any ambiguity in this Addendum shall be resolved in favor of a
meaning that complies and is consistent with HIPAA and the HIPAA Regulations.
11. Jurisdiction. Any litigation between the parties regarding the terms of this Addendum
shall take place in Miami -Dade City, Florida.