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PSA with Horizon Investigations, Inc. 3 0 / 6 . NC- I 2o/I PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH, FLORIDA AND HORIZON INVESTIGATIONS, INC. FOR INVESTIGATIVE AND ADJUSTING SERVICES FOR SELECTED TORT LIABILITY CLAIMS AND WORKERS' COMPENSATION CLAIMS ON AN "AS NEEDED" BASIS, PURSUANT TO REQUEST FOR PROPOSALS (RFP) NO. 16 -10/11 THIS AGREEMENT made and entered into this a6 /6 day of /1(45U31 , 2011, by and between the CITY OF MIAMI BEACH, FLORIDA (hereinafter referred to as City), a municipal corporation, having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida, 33139, and HORIZON INVESTIGATIONS, INC. (hereinafter referred to as Contractor), a Florida corporation, whose address is 5595 Orange Drive, Suite 202, Davie, Florida, 33314. SECTION 1 DEFINITIONS Agreement: This Agreement between the City and Contractor. City Manager: The Chief Administrative Officer of the City. Contractor: For the purposes of this Agreement, Contractor shall be deemed to be an independent Contractor, and not an agent or employee of the City. Services: All services, work and actions by the Contractor performed pursuant to or undertaken under this Agreement, as described in Section 2 and Exhibit "A" hereto. Fee: Amount paid to the Contractor to cover the costs of the Services. Risk Manager: The Risk Manager of the City, with offices at 1700 Convention Center Drive, Third Floor, Miami Beach, Florida 33139, telephone number (305) 673 -7000, Ext. 6435, and fax number (305) 673 -7023. 1 SECTION 2 SCOPE OF SERVICES (SERVICES) 2.1 GENERAL The City is entering into this Agreement for investigative and adjusting services for selected tort liability claims and workers' compensation claims, on an "as needed basis ", as set forth in Request for Proposals (RFP) No. 16- 10/11, together with all amendments thereto (the RFP), and Contractor's Proposal in response thereto, attached as Exhibit "A" hereto (and collectively referred to as Proposal Documents) (the Services). 2.2 SCOPE OF SERVICES (SERVICES) * Provide Surveillance of the claimant for selected Tort Liability and Workers' Compensation Claims. * Provide Activity Checks of the claimant for selected Tort Liability and Workers' Compensation Claims. * Provide "Research and Background Investigations" of claimants for selected Tort and Workers' Compensation Claims. * Provide complete investigative and adjusting services for selected Tort Liability Claims. * Other related services as requested. * Submit a written report with appropriate documentation at the conclusion of each assignment to the Risk Management Division. The report must contain the following minimum information: * Identify the claimant investigated and provide a written comprehensive report indicating activity preformed, summary, and recommendations. * Provide written background results, surveillance tapes /DVD, and photos. * Invoice for type of activity and length of activity identifying total amount due. 2.3 INDEPENDENT CONTRACTORS It is the intent of the parties hereto that the Contractor shall be legally considered to be an independent Contractor and that neither the Contractor nor the Contractor's employees and agents shall, under any circumstances, be considered employees or agents of the City. 2 SECTION 3 COMPENSATION 3.1 FEE Contractor shall be compensated for the Services, as set forth in Section 2 and Exhibit "A ", on an "as needed" basis, by the City. The hourly rates set forth in Exhibit "B" (negotiated pricing) to this Agreement shall remain fixed and firm for the Term of the Agreement. 3.2 INVOICING All invoices are subject to verification, approval, and processing by the City's Risk Manager. 3.3 PAYMENTS Payment for Services satisfactorily performed will be paid and processed through the City's Risk Management Department. SECTION 4 GENERAL PROVISIONS 4.1 RESPONSIBILITY OF THE CONTRACTOR With respect to the performance of the Services, the Contractor shall exercise that degree of skill, care, efficiency and diligence normally exercised by recognized professionals with respect to the performance of comparable Services. In its performance of the Services, the Contractor shall comply with all applicable laws, ordinances, and regulations of the City, Miami -Dade County, State of Florida, and Federal Government. 4.2 PUBLIC ENTITY CRIMES A State of Florida Form PUR 7068, Sworn Statement under Section 287.133(3) (a) Florida Statute on Public Entity Crimes shall be filed with the City's Procurement Division, prior to commencement of the Services herein. 4.3 DURATION AND EXTENT OF AGREEMENT (TERM) The term of this Agreement shall be for an initial term of one (1) year, commencing on the last date of execution of the Agreement by the parties hereto. At its sole discretion, the City may renew this Agreement, upon the same terms and conditions, for up to four (4) additional one (1) year renewal terms, upon thirty (30) days written notice to Contractor (such notice to be provided prior to the end of the initial term or a renewal term, as the case maybe). 4.4 TIME OF COMPLETION The Services to be performed by the Contractor shall be on an "as needed" basis, and shall commence upon receipt of a particular Claim Assignment from the City. Assignment shall, without limitation, specify the Services, (The Claim or portion thereof) required , as well as estimated time for completion of the same. 3 4.5 INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City of Miami Beach and its officers, employees and agents, from and against any and all actions, claims, liabilities, losses, and expenses, including, but not limited to, attorneys' fees, for personal, economic or bodily injury, wrongful death, loss of or damage to property, at law or in equity, which may arise or be alleged to have arisen from the negligent acts, errors, omissions or other wrongful conduct of the Contractor, its employees, agents, sub - contractors, or any other person or entity acting under Contractor's control, including without limitation any and all temporary personnel assigned to the City pursuant to this Agreement, in connection with the Contractor's performance of the Services pursuant to this Agreement; and to that extent, the Contractor shall pay all such claims and losses and shall pay all such costs and judgments which may issue from any lawsuit arising from such claims and losses, and shall pay all costs and attorneys' fees expended by the City in the defense of such claims and losses, including appeals. The parties agree that one percent (1 %) of the total compensation to the Contractor for performance of the Services under this Agreement is the specific consideration from the City to the Contractor for the Contractor's Indemnity Agreement. The Contractor's obligation under this Subsection shall not include the obligation to indemnify the City of Miami Beach and its officers, employees and agents, from and against any actions or claims which arise or are alleged to have arisen from the sole negligent acts or omissions or other wrongful conduct of the City and its officers, employees and agents. The parties each agree to give the other party prompt notice of any claim coming to its knowledge that in any way directly or indirectly affects the other party. 4.6 TERMINATION, SUSPENSION AND SANCTIONS 4.6.1 Termination for Cause If the Contractor shall fail to fulfill in a timely manner, or otherwise violate any of the covenants, agreements, or stipulations material to this Agreement, the City shall thereupon have the right to terminate this Agreement for cause. Prior to exercising its option to terminate for cause, the City shall notify the Contractor of its violation of the particular terms of this Agreement and shall grant Contractor ten (10) days to cure such default. If such default remains uncured after ten (10) days, the City, upon three (3) days' notice to Contractor, may terminate this Agreement and the City shall be fully discharged from any and all liabilities, duties and terms arising out of /or by virtue of this Agreement. Notwithstanding the above, the Contractor shall not be relieved of liability to the City for damages sustained by the City by any breach of the Agreement by the Contractor. The City, at its sole option and discretion, shall additionally be entitled to bring any and all legal /equitable actions that it deems to be in its best interest in order to enforce the City's right and remedies against the defaulting party. The City shall be entitled to recover all costs of such actions, including reasonable attorneys' fees. To the extent allowed by law, Contractor waives its right to jury trial and its right to bring permissive counter claims against the City in any such action. 4 4.6.2 Termination for Convenience of City NOTWITHSTANDING SECTION 4.7.1, THE CITY MAY ALSO, FOR ITS CONVENIENCE AND WITHOUT CAUSE, TERMINATE THE AGREEMENT AT ANY TIME DURING THE TERM HEREOF, BY GIVING WRITTEN NOTICE TO CONTRACTOR OF SUCH TERMINATION, WHICH SHALL BECOME EFFECTIVE THIRTY (30) DAYS FOLLOWING RECEIPT BY THE CONTRACTOR OF THE WRITTEN TERMINATION NOTICE. IN THAT EVENT, ALL FINISHED OR UNFINISHED DOCUMENTS, WORK, REPORTS, AND OTHER MATERIALS, AS DESCRIBED AND /OR CONTEMPLATEDIN SECTION 2 AND IN THE PROPOSAL DOCUMENTS, AND /OR UNDER A PARTICULAR CLAIM ASSIGNEMT, SHALL BE PROPERLY ASSEMBLED AND DELIVERED TO THE CITY, AT CONTRACTOR'S SOLE COST AND EXPENSE. IF THE AGREEMENT IS TERMINATED BY THE CITY AS PROVIDED IN THIS SUBSECTION, CONTRACTOR SHALL BE PAID FOR ANY SERVICES SATISFACTORILY PERFORMED, AS DETERMINED BY THE CITY AT ITS DISCRETION, UP TO THE DATE OF TERMINATION, PROVIDED, HOWEVER, THAT AS A CONDITION PRECEDENT TO SUCH PAYMENT, CONTRACTOR SHALL DELIVER ANY AND ALL DOCUMENTS, WORK, REPORTS, MATERIALS, ETC, TO CITY, AS REQUIRED HEREIN. 4.6.3 Termination for Insolvency The City also reserves the right to terminate the Agreement in the event the Contractor is placed either in voluntary or involuntary bankruptcy or makes an assignment for the benefit of creditors. In such event, the right and obligations for the parties shall be the same as provided for in Section 4.6.2. 4.6.4 Sanctions for Noncompliance with Nondiscrimination Provisions In the event of the Contractor's noncompliance with the nondiscrimination provisions of this Agreement, the City shall impose such sanctions as the City, Miami -Dade County, and / or the State of Florida, as applicable, may determine to be appropriate, including but not limited to, withholding of payments to the Contractor under the Agreement until the Contractor complies and /or cancellation, termination or suspension of the Agreement. 4.7 CHANGES AND ADDITIONS Changes and additions to the Agreement shall be directed by a written amendment signed by the duly authorized representatives of the City and Contractor. No alteration, change, or modification of the terms of this Agreement shall be valid unless amended in writing, signed by both parties hereto, and approved by the City. 4.8 INSURANCE REQUIREMENTS Contractor shall obtain, provide and maintain, during the Term of the Agreement, the following types and amounts of insurance, which shall be maintained with insurers licensed to sell insurance in the State of Florida and have a B+ VI or higher rating in the latest edition of AM Best's Insurance Guide. (Any exceptions to these requirements must be approved by the City's Risk Management Department prior to implementation of same): 1. Commercial General Liability: A policy including, but not limited to, comprehensive general liability including bodily injury, personal injury, property damage in the amount of a combined single limit of not less than $300,000. Coverage shall be provided on an 5 occurrence basis. The City of Miami Beach must be named as certificate holder and additional insured on policy. 2. Worker's Compensation: A policy of Worker's Compensation and Employers Liability Insurance in accordance with State worker's compensation laws as required pursuant to Florida Statutes. Said policies of insurance shall be primary to and contributing with any other insurance maintained by the Contractor or City, and shall name the City of Miami Beach, Florida and its officers, agents and employees as additional insured under this Agreement. Policies cannot be canceled without thirty (30) days prior written notice to the City. The Contractor shall file and maintain certificates of all insurance policies with the City's Risk Management Department showing said policies to be in full force and effect at all times during the Term of the Agreement. No work shall be done by Contractor during any period when it is not covered by insurance as herein required. Such insurance shall be obtained from brokers or carriers authorized to transact insurance business in Florida and satisfactory to City. Evidence of such insurance shall be submitted to and approved by the City's Risk Manager prior to commencement of any work or services under the Agreement. If any of the required insurance coverages contain aggregate limits, or apply to other operations of the Contractor outside the Agreement, Contractor shall give City prompt written notice of any incident, occurrence, claim settlement or judgment against such insurance which may diminish the protection such insurance affords the City. The Contractor shall further take immediate steps to restore such aggregate limits or shall provide other insurance protection for such aggregate limits 4.9 Failure to Procure Insurance Contractor's failure to procure or maintain required insurance coverage shall constitute a material breach of Agreement under which City may, at its sole option, immediately terminate the Agreement. 4.10 ASSIGNMENT, TRANSFER OR SUBCONTRACTING The Contractor shall not subcontract, assign, transfer any work under this Agreement in whole or in part, without prior written consent of the City. 4.11 SUB - CONTRACTORS The Contractor shall be liable for the Contractor's services, responsibilities and liabilities under this Agreement and the services, responsibilities and liabilities of any and all sub - contractors, and any other person or entity acting under the direction or control of the Contractor. 4.12 EQUAL EMPLOYMENT OPPORTUNITY In connection with the performance of this Agreement, the Contractor shall not discriminate against any employee or applicant for employment because of race, color, religion, ancestry, sex, age, and national origin, place of birth, marital status, physical 6 handicap, or sexual orientation. The Contractor shall take affirmative action to ensure that applicants are employed and that employees are treated during their employment without regard to their race, color, religion, ancestry, sex, age, and national origin, place of birth, marital status, disability, or sexual orientation. 4.13 CONFLICT OF INTEREST The Contractor agrees to adhere to and be governed by the Metropolitan Miami - Dade County Conflict of Interest Ordinance (No. 72 -82), as amended; and by the City of Miami Beach Charter and Code, which are incorporated by reference herein as if fully set forth herein, in connection with the Agreement conditions hereunder. The Contractor covenants that it presently has no interest and shall not acquire any interest, direct or indirectly which should conflict in any manner or degree with the performance of the Services. The Contractor further covenants that in the performance of this Agreement, no person having any such interest shall knowingly are employed by the Contractor. No member of or delegate to the Congress of the United States shall be admitted to any share or part of this Agreement or to any benefits arising therefrom. 4.14 PATENT RIGHTS; COPYRIGHTS; CONFIDENTIAL FINDINGS Any work product arising out of this Agreement, as well as all information, specifications, processes, data and findings, are intended to be the property of the City and shall not otherwise be made public and /or disseminated by Contractor, without the prior written consent of the City, excepting any information, records etc. which are required to be closed pursuant to Court Order and /or Florida Public Records Law. All reports, documents, articles, devices, and /or work produced in whole or in part under this Agreement are intended to be the sole and exclusive property of the City, and shall not be subject of any application for copyright or patent by or on behalf of the Contractor or its employees or sub - contractors, without the prior written consent of the City. 4.15 NOTICES All notices and communications in writing required or permitted hereunder may be delivered personally to the representatives of the Contractor and the City listed below or may be mailed by registered mail, postage prepaid (or airmailed if addressed to an address outside of the city of dispatch). 7 Until changed by notice in writing, all such notices and communications shall be addressed as follows: TO CONTRACTOR: Horizon Investigations, Inc Attn: Lee S. Goldwich PO Box 550103 Ft. Lauderdale, Florida 333551ZA3363E1240514002 (954) 629 -6595 TO CITY: City of Miami Beach Attn: Clifford Leonard, Risk Manager 1700 Convention Center Drive Miami Beach, Florida 33139 (305) 673 -7014 CC: City of Miami Beach Attn: Ramiro Inguanzo, Director Human Resource and Risk Management 1700 Convention Center Drive Miami Beach, Florida 33139 (305) 673 -7524 Notices hereunder shall be effective: If delivered personally, on delivery; if mailed to an address in the city of dispatch, on the day following the date mailed; and if mailed to an address outside the city of dispatch on the seventh day following the date mailed. 4.16 LITIGATION JURISDICTIONNENUE This Agreement shall be enforceable in Miami -Dade County, Florida, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for the enforcement of same shall lie in Miami -Dade County, Florida. BY ENTERING INTO THIS AGREEMENT, THE CONTRACTOR AND CITY EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT. 4.17 ENTIRETY OF AGREEMENT This Agreement and all exhibits hereto including, without limitation, Request for Proposals (RFP) No. 14- 05/06, together with all amendments thereto, and Contractor's response to the RFP (collectively, the Proposal Documents), shall embody the entire Agreement and understanding between the parties hereto, and there are no other agreements and understandings, oral or written with reference to the subject matter hereof that are not merged herein and superceded hereby The Proposal Documents are hereby incorporated by reference into this Agreement, as Exhibit "A" hereto; provided, however, that in the event of an express conflict between the Proposal Documents and this Agreement, the Agreement shall prevail. 8 • 4.18 LIMITATION OF CITY'S LIABILITY The City desires to enter into this Agreement only if in so doing the City can place a limit 9 Y 9 Y p on the City's liability for any cause of action for money damages due to an alleged breach by the City of this Agreement, so that its liability for any such breach never exceeds the sum of $1,000. Contractor hereby expresses its willingness to enter into this Agreement with Contractor recovery from the City for any damage action for breach of contract to be limited to a maximum amount of $1,000. Accordingly, and notwithstanding any other term or condition of this Agreement, Contractor hereby agrees that the City shall not be liable to the Contractor for damages in an amount in excess of $1,000 for any action or claim for breach of contract arising out of the performance or non - performance of any obligations imposed upon the City by this Agreement. Nothing contained in this paragraph or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon the Citys liability as set forth in Section 768.28, Florida Statutes. 4.19 COMPLIANCE WITH APPLICABLE LAWS The Contractor, its subcontractors, agents and employees, including without limitation, any and all temporary personnel assigned to the City pursuant to this Agreement, shall comply with all applicable Federal, State, Miami -Dade County and City laws, and with all applicable rules and regulations promulgated by local, state and national boards, bureau and agencies, as they relate to the Agreement and /or the provision of Services hereto. [Remainder of the page left intentionally blank] 9 • IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their appropriate officials, as of the date first entered above. FOR CITY: CITY OF MIAMI BEACH, FLORIDA ATTEST: 1 By: fiA /MAO / ° _ Ar Ofi; City Clerk Robert Parcher Matti Herrera Bower Mayor +6 .--6 ) i Date Date FOR CONTRACTOR: HORIZON INVESTIGATIONS, INC. ATTEST: / B Z.i By: has Secretary President 5. Ga lbw Print Name Print Name S f < 7( Date Date Attachments: Exhibit "A" — Request for Proposals No. 16- 10/11, Addendum No. 1 thereto, and Contractor's response to the Proposal. Exhibit "B" — Negotiated Price (Final) APPROVED AS YCIP FORM & L,ANGUAG! £ FOR EXECUTION 7 / i5 ( 10 OF QV Attonlq 4 Exhibit "B" Negotiated Price The Contractor shall be compensated for the Services to be provided herein in an amount of $55.00 per hour plus expenses for investigative services and $40.00 per hour plus expenses for adjusting services. 11