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HomeMy WebLinkAboutPaul Henry Investigations 2021-04-26 COU No. 2021-196 AGREEMENT FOR PROFESSIONAL INVESTIGATIVE SERVICES This Agreement, made and entered into this 2611' day of April 2021 ("Effective Date"), by and between CITY OF UKIAH, CALIFORNIA, hereinafter referred to as "City" and PAUL HENRY INVESTIGATIONS, LLC, dba INDEPENDENT INVESTIGATIVE CONSULTANTS, LLC, hereinafter referred to as "IIC". RECITALS This Agreement is predicated on the following facts: a. The City Police Department needs to conduct an internal affairs investigation and wants an independent investigator to conduct the investigation and report the results of that investigation as further described in a letter from the City Attorney setting forth Scope of Work under this Agreement ("the Scope of Work Letter"). b. IIC represents that it has the qualifications, skills, experience and is properly licensed to provide these services, and is willing to provide them according to the terms of this Agreement. TERMS OF AGREEMENT 1.0 DESCRIPTION OF PROJECT 1.1 The Project is described in detail in the Scope of Work Letter. 2.0 SCOPE OF SERVICES 2.1 As set forth in the Scope of Work Letter. 2.2. Additional Services. Additional services, if any, shall only proceed upon written agreement between City and IIC. The written Agreement shall be in the form of an Amendment to this Agreement. 3.0 CONDUCT OF WORK 3.1 Time of Completion. IIC shall commence performance of services as required by the Scope- of-Work Letter upon receipt of a Notice to Proceed from City, which may only be issued after ICC has received and approved the Scope of Work Letter, and shall complete and submit final invoice for such services when the investigation is completed in accordance with the applicable provisions of the Peace Officers Bill of Rights. 4.0 COMPENSATION FOR SERVICES 4.1 Basis for Compensation. IIC agrees to conduct investigative activities, including collection and review of evidence, interviews of witnesses, and preparation of notes and reports, chargeable at $145.00 per hour, including travel time. Subsequent to the completion of its investigative services, ICC shall be paid $200.00 per hour for any preparation and/or testimony related to this case, requested or approved by City or compelled by legal process, including for depositions or testimony in administrative or judicial proceedings. 1 IIC shall be reimbursed by City for actual and reasonable expenses to include long distance telephone charges, non-routine copying costs, express or overnight mail charges, costs of electronic media, such as flash drives and vehicle mileage charges at $ 0.75 per mile. Unless otherwise agreed, all interviews will be recorded and transcribed. Transcription costs will be passed through to City, at a rate of$59.00 per hour. 4.2 Terms of Payment. Payment to IIC for services rendered in accordance with this contract shall be based upon submission of invoices for the work satisfactorily performed prior to the date of invoice less any amount already paid to IIC, which amounts shall be due and payable thirty (30) days after receipt by City. The invoices shall provide a description of each item of work performed, the time expended to perform each task, the fees charged for that task, and the direct expenses incurred and billed for. Invoices shall be accompanied by documentation sufficient to enable City to determine progress made and the expenses claimed. 5.0 ASSURANCES OF IIC 5.1 Independent Contractor. IIC is an independent contractor and is solely responsible for its acts or omissions. IIC (including its agents, servants, and employees) is not City's agent, employee, or representative for any purpose. It is the express intention of the parties hereto that IIC is an independent contractor and not an employee, joint venturer, or partner of City for any purpose whatsoever. City shall have no right to and shall not control the manner or prescribe the method of accomplishing those services contracted to and performed by IIC under this Agreement, and the general public and all governmental agencies regulating such activity shall be so informed. Those provisions of this Agreement that reserve ultimate authority in City have been inserted solely to achieve compliance with federal and state laws, rules, regulations, and interpretations thereof. No such provisions and no other provisions of this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between IIC and City. IIC shall pay all estimated and actual federal and state income and self-employment taxes that are due the state and federal government and shall furnish and pay worker's compensation insurance, unemployment insurance and any other benefits required by law for himself and his employees, if any. IIC agrees to indemnify and hold City and its officers, agents and employees harmless from and against any claims or demands by federal, state or local government agencies for any such taxes or benefits due but not paid by IIC, including the legal costs associated with defending against any audit, claim, demand or lawsuit. IIC warrants and represents that it is a properly licensed professional or professional organization with a substantial investment in its business and that it maintains its own offices and staff which it will use in performing under this Agreement. 5.2 Conflict of Interest. IIC understands that its professional responsibility is solely to City. IIC has no interest and will not acquire any direct or indirect interest that would conflict with its performance of the Agreement. IIC shall not in the performance of this Agreement employ a person having such an interest. If the City Manager determines that the IIC has a disclosure obligation under the City's local conflict of interest code, the IIC shall file the required disclosure form with the City Clerk within 10 days of being notified of the City Manager's determination. 2 6.0 INDEMNIFICATION 6.1 Insurance Liability. Without limiting IIC's obligations arising under Paragraph 6.2 IIC shall not begin work under this Agreement until it procures and maintains for the full period of time allowed by law, surviving the termination of this Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with its performance under this Agreement. A. Minimum Scope of Insurance Coverage shall be at least as broad as: 1. Insurance Services Office ("ISO) Commercial General Liability Coverage Form No. CG 20 10 10 01 and Commercial General Liability Coverage — Completed Operations Form No. CG 20 37 10 01. 2. ISO Form No. CA 0001 (Ed. 1/87) covering Automobile Liability, Code 1 "any auto" or Code 8, 9 if no owned autos and endorsement CA 0025. 3. Worker's Compensation Insurance as required by the Labor Code of the State of California and Employers Liability Insurance. B. Minimum Limits of Insurance IIC shall maintain limits no less than: 1. General Liability: $1,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage including operations, products and completed operations. If Commercial General Liability Insurance or other form with a general aggregate limit is used, the general aggregate limit shall apply separately to the work performed under this Agreement, or the aggregate limit shall be twice the prescribed per occurrence limit. 2. Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage. 3. Worker's Compensation and Employers Liability: Workers compensation limits as required by the Labor Code of the State of California and Employers Liability limits of$1,000,000 per accident. C. Deductibles and Self-Insured Retentions Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects to the City, its officers, officials, employees and volunteers; or the IIC shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. D. Other Insurance Provisions The policies are to contain, or be endorsed to contain, the following provisions: 1. General Liability and Automobile Liability Coverages 3 a. The City, it officers, officials, employees and volunteers are to be covered as additional insureds as respects; liability arising out of activities performed by or on behalf of the IIC, products and completed operations of the IIC, premises owned, occupied or used by the IIC, or automobiles owned, hired or borrowed by the IIC for the full period of time allowed by law, surviving the termination of this Agreement. The coverage shall contain no special limitations on the scope-of-protection afforded to the City, its officers, officials, employees or volunteers. b. The IIC's insurance coverage shall be primary insurance as respects to the City, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees or volunteers shall be in excess of the IIC's insurance and shall not contribute with it. C. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its officers, officials, employees or volunteers. d. The IIC's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 2. Worker's Compensation and Employers Liability Coverage The insurer shall agree to waive all rights of subrogation against the City, its officers, officials, employees and volunteers for losses arising from IIC's performance of the work, pursuant to this Agreement. 3. All Coverages Each Insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. E. Acceptability of Insurers Insurance is to be placed with admitted California insurers with an A.M. Best's rating of no less than A-for financial strength, AA for long-term credit rating and AMB-1 for short-term credit rating. F. Verification of Coverage IIC shall furnish the City with Certificates of Insurance and with original Endorsements effecting coverage required by this Agreement. The Certificates and Endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The Certificates and Endorsements are to be on forms provided or approved by the City. All Certificates and Endorsements are to be received and approved by the City before IIC begins the work of this Agreement. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. If IIC fails to provide the coverages required herein, the City shall 4 have the right, but not the obligation, to purchase any or all of them. In that event, after notice to IIC that City has paid the premium, the cost of insurance may be deducted from the compensation otherwise due the contractor under the terms of this Contract. 6.2 Indemnification. Notwithstanding the foregoing insurance requirements, and in addition thereto, IIC and the City agree, for the full period of time allowed by law, surviving the termination of this Agreement, to indemnify each other for any claim, cost or liability that arises out of, or pertains to, or relates to any negligent act or omission or the willful misconduct of the other party in the performance of services under this contract, "Indemnify," as used herein includes the expenses of defending against a claim and the payment of any settlement or judgment arising out of the claim. Defense costs include all costs associated with defending the claim, including, but not limited to, the fees of attorneys, investigators, IICs, experts and expert witnesses, and litigation expenses. References in this paragraph to City or IIC, include their officers, employees, agents, and subcontractors. 7.0 CONTRACT PROVISIONS 7.1 Documents and Ownership of Work. A. All documents furnished to IIC by City and all documents or reports and supportive data prepared by IIC under this Agreement are owned and become the property of the City upon their creation and shall be given to City immediately upon demand and at the completion of IIC's services at no additional cost to City. Deliverables are identified in the Scope-of-Work Letter. All documents produced by IIC shall be furnished to City in digital format and hardcopy. IIC shall produce the digital format, using software and media approved by City. B. IIC will not divulge any information to any party or agency, governmental or otherwise, without the express written authorization of the City, City's attorney, court order or in the case of a serious criminal violation. C. Any and all public records IIC gives to the City are provided for information purposes only. IIC assumes no responsibility for the accuracy, completeness or omissions in those public records. 7.2 Governing Law. IIC shall comply with the laws and regulations of the United States, the State of California, and all local governments having jurisdiction over this Agreement. The interpretation and enforcement of this Agreement shall be governed by California law and any action arising under or in connection with this Agreement must be filed in a Court of competent jurisdiction in Mendocino County. 7.3 Entire Agreement. This Agreement plus its Attachment(s) and executed Amendments set forth the entire understanding between the parties. 7.4 Severability. If any term of this Agreement is held invalid by a court of competent jurisdiction, the remainder of this Agreement shall remain in effect. 7.5 Modification. No modification of this Agreement is valid unless made with the agreement of both parties in writing. 5 7.6 Assignment. IIC's services are considered unique and personal. IIC shall not assign, transfer, or sub-contract its interest or obligation under all or any portion of this Agreement without City's prior written consent. 7.7 Waiver. No waiver of a breach of any covenant, term, or condition of this Agreement shall be a waiver of any other or subsequent breach of the same or any other covenant, term or condition or a waiver of the covenant, term or condition itself. 7.8 Termination. This Agreement may only be terminated by either party: 1) for breach of the Agreement; 2) because funds are no longer available to pay IIC for services provided under this Agreement; or 3) City has abandoned and does not wish to complete the project for which IIC was retained. A party shall notify the other party of any alleged breach of the Agreement and of the action required to cure the breach. If the breaching party fails to cure the breach within the time specified in the notice, the contract shall be terminated as of that time. If terminated for lack of funds or abandonment of the project, the contract shall terminate on the date notice of termination is given to IIC. City shall pay the IIC only for services performed and expenses incurred as of the effective termination date. In such event, as a condition to payment, IIC shall provide to City all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs and reports prepared by the IIC under this Agreement. IIC shall be entitled to receive just and equitable compensation for any work satisfactorily completed hereunder, subject to off-set for any direct or consequential damages City may incur as a result of IIC's breach of contract. 7.9 Execution of Agreement. This Agreement may be executed in duplicate originals, each bearing the original signature of the parties. Alternatively, this Agreement may be executed and delivered by facsimile or other electronic transmission, and in more than one counterpart, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. When executed using either alternative, the executed agreement shall be deemed an original admissible as evidence in any administrative or judicial proceeding to prove the terms and content of this Agreement. 8.0 NOTICES Any notice given under this Agreement shall be in writing and deemed given when personally received, if delivered by overnight courier or email, or 48 hours after deposited in the mail with proper first class postage affixed and addressed to the parties as follows: IIC CITY OF UKIAH Independent Investigative Consultants, LLC City of Ukiah Attention: Paul Henry Sage Sangiacomo, City Manager 8800 Lakewood Dr., Suite 356 Ukiah Civic Center Windsor, CA 95492 300 Seminary Ave. Email: paul@ph-investigations.com Ukiah, CA 95482 Email: ssangiacomo@cityofukiah,com 9.0 SIGNATURES IN WITNESS WHEREOF,the parties have executed this Agreement the Effective Date: 6 Independent Investigative Consultants BY: Pl �1 I Paul Henry, Own r Date IRS IDN Number. CITY OF UKIAH BY:°5�`S Apr 29, 2021 Sage Sangiacomo Date CITY MANAGER ATTEST ��istr�re�wGe�Kristine Lawler(Apr 29,2021 15:01 PDT) Apr 29, 2021 CITY CLERK Date 7