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HomeMy WebLinkAbout21-22Resolution No. 21-22 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT WITH THE LAW FIRM OF OTTOSEN, DINOLFO, HASENBALG & CASTALDO, LTD. FOR PROFESSIONAL SERVICES IN CONNECTION WITH POLICE INTERNAL INVESTIGATIONS BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Richard G, Kozal, City Manager, and Kimberly A. Dewis, City Clerk, be and are hereby authorized and directed to execute an Agreement on behalf of the City of Elgin with the Law Firm of Ottosen, DiNolfo, Hasenbalg & Castaldo, LTD, for professional services in connection with police internal investigations, a copy of which is attached hereto and made a part hereof by reference. s/ David J. Kaptain _ David J. Kaptain, Mayor Presented: February 10, 2021 Adopted: February 10, 2021 Vote: Yeas: 8 Nays: 1 Attest: s/ Kimberly Dewis Kimberly Dewis, City Clerk AGREEMENT (Police Internal Investigations) THIS AGREEMENT is made and entered into as of the 1 Oth day of February, 2021, by and between the CITY OF ELGIN, an Illinois municipal corporation (hereinafter referred to as "CITY") and the Law Firm of OTTOSEN, DINOLFO, HASENBALG & CASTALDO, LTD. (hereinafter referred to as "ATTORNEYS"). WHEREAS, the CITY desires to engage the ATTORNEYS to furnish professional services in connection with certain internal investigations regarding allegations of misconduct of sworn police officers or other employees of the Elgin Police Department as provided in Elgin Municipal Code Section 2.52.165, as amended (hereinafter referred to as "POLICE INTERNAL INVESTIGATIONS"); and WHEREAS, the ATTORNEYS represent that they are in compliance with Illinois Statutes relating to professional registration of ATTORNEYS and have the necessary expertise and experience to furnish such services upon the terms and conditions set forth herein below. NOW, THEREFORE, it is hereby agreed by and between the CITY and the ATTORNEYS that the CITY does hereby retain the ATTORNEYS for and in consideration ofthe mutual promises and covenants contained herein, the sufficiency of which is hereby acknowledged to perform the services relating to POLICE INTERNAL INVESTIGATIONS as described herein, subject to the following terms and conditions and stipulations, to -wit: 1. SCOPE OF SERVICES A. All work hereunder shall be performed under the direction of the Police Chief of the CITY (hereinafter referred to as the "POLICE CHIEF"). B. The goal of internal affairs investigations is to ensure the integrity of the police department as maintained through a system of internal discipline where fairness and justice are assured by objective, impartial investigation and review. C. Any matter for which the ATTORNEYS are to provide an investigation shalt first be assigned in writing by the POLICE CHIEF to the ATTORNEYS. Upon the assignment of such a matter for investigation by the POLICE CHIEF the ATTORNEYS shall perform the following services relating to POLICE INTERNAL INVESTIGATIONS: Conduct Investigation: Meet with police department management to discuss the allegations to be investigated. Provide an investigative plan detailing the issues to be investigated, witnesses to be interviewed, evidence to be reviewed and/or collected, and an estimate of hours and timeline for the investigation. • Determine the most appropriate investigative method(s) to be used for each investigation in conjunction with police department management. • Interview witnesses, complainants and other persons; gather documents; review affidavits and supporting documentation; -review relevant video evidence; administer oaths and examine persons; and otherwise conduct all research necessary and gather all evidence sufficient to complete each assigned investigation. • Review all relevant and applicable federal, state and local laws, statutes, ordinances, rules and regulations. • Evaluate all evidence gathered in each investigation to formulate defensible investigative conclusions regarding thealleged violations. • Provide updates to police department management on the progress of the investigation at each phase, including any anticipated changes to the established timeline, on a weekly basis or as requested by the City. Submit Report Findings: • Conduct a debriefing session with police department management upon the conclusion of the investigation to review the evidence and findings. • Submit a final written report with supporting documentation, findings and recommendations with all evidence, and applicable materials simultaneously to the Chief of Police and the Mayor and members of the City Council. Findings shall include whether there was a violation of any applicable statutes, ordinances, rules or regulations. Other Requirements: • Comply with all federal, state, and local laws, statute, ordinances, rule and regulations in conducting all investigations, including, but not limited to, the Uniform Peace Officers Disciplinary Act (50 ILCS 725/1, et seq., as amended) and the provisions of any applicable collective bargaining agreement. • Participate in administrative hearings, in court, or other official proceedings that result from the investigations. • Provide all work under the agreement with the City in a confidential manner. D. Attorneys Stephen DiNolfo, Joseph Miller and Ericka Thomas shall be the ATTORNEYS conducting the POLICE INTERNAL INVESTIGATIONS pursuant to this Agreement. E. In the provision of the POLICE INTERNAL INVESTIGATIONS services under this Agreement, the ATTORNEYS shall endeavor to perform in a manner consistent with that degree of care and skill ordinarily exercised by attorneys practicing under similar circumstances. F. This Agreement between the CITY and the ATTORNEYS is nonexclusive. The CITY reserves the right to otherwise provide for POLICE INTERNAL -2- INVESTIGATIONS whether retaining other persons or entities to conduct such investigations or otherwise. 2. TERM The term of this Agreement shall commence on February 11, 2021, and, subject to the termination procedure set forth below, shall continue until February 11, 2024. 3. PAYMENTS TO THE ATTORNEYS A. As compensation to the ATTORNEYS for the services to be provided pursuant to this Agreement, the CITY shall pay to the ATTORNEYS $230.00 per hour for attorneys, $165.00 per hour for law clerks and $155.00 per hour for paralegal services. B. The CITY shall reimburse the ATTORNEYS for any actual out-of-pocket costs incurred in the facilitation of THE POLICE INTERNAL INVESTIGATION services, such as costs for transcripts or court reporting services, and the like, upon presentation of proof of payment for same. C. The CITY shall make monthly payments to the ATTORNEYS during the term ofthis Agreement after receipt and approval of an invoice. 4. INVOICES A. The ATTORNEYS shall submit monthly invoices in a format approved by the CITY. B. The ATTORNEYS shall maintain records showing actual time devoted and cost incurred. The ATTORNEYS shall permit the authorized representative ofthe CITY to inspect and audit all data and records of the ATTORNEYS for work done under this Agreement. The ATTORNEYS shall make these records available at reasonable times during the Agreement period and for four (4) years after the expiration or termination of this Agreement. 5. CONFIDENTIAL INFORMATION All confidential communications between the CITY and the ATTORNEYS, whether oral or written, and all documentation whether prepared by the ATTORNEYS or the CITY shall to the full extent permitted by law shall be considered to be an attorney client privileged communication and shall not be disclosed except by the written consent of the CITY'S Corporation Counsel. 6. CONFLICT OF INTERESTS A. In the event the ATTORNEYS must withdraw from a POLICE INTERNAL INVESTIGATION matter due to a conflict of interest, the ATTORNEYS shall notify -3- the POLICE CHIEF in writing of said conflict of interest within ten (10) days of the ATTORNEYS becoming aware of said conflict. The CITY shall identify a substitute investigator, if necessary, to provide any needed investigation services for the matter in question. B. The ATTORNEYS represent that they do not currently maintain any client relationship with persons or entities involved in litigation with the CITY. Additionally, the ATTORNEYS have instituted and shall maintain a strict client intake policy wherein any potential client is required to identify the arresting agency and adverse parties to support staff, prior to speaking with an attorney. The ATTORNEYS will not engage in any case in which the CITY is the arresting agency or an adverse party throughout the term of this Agreement. It is understood that the any litigation wherein the ATTORNEYS would represent any adverse party against the CITY would be strictly forbidden. 7. TERMINATION OF AGREEMENT Notwithstanding any other provision hereof, the CITY may terminate this Agreement at any time upon thirty (30) days prior written notice to the ATTORNEYS. In the event that this Agreement is so terminated, the ATTORNEYS shall be paid for services actually performed and reimbursable expenses actually incurred prior to termination, except that reimbursement shall not exceed the amounts set forth under Paragraph 3 above. 8. BREACH OF CONTRACT If either party violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and the other party has the right to seek such administrative, contractual or legal remedies as may be suitable to the violation or breach; and, in addition, if either party, by reason of any default, fails within fifteen (15) days after notice thereof by the other party to comply with the conditions of the Agreement, the other party may terminate this Agreement. Notwithstanding the foregoing, or anything else to the contrary in this Agreement, with the sole exception of an action to recover the monies the CITY has agreed to pay to the ATTORNEYS pursuant to Paragraph 3 hereof, no action shall be commenced by the ATTORNEYS against the CITY for monetary damages, nor would they represent any other entity in the bringing of any type of lawsuit, nor participate in any litigation thereof. ATTORNEYS hereby further waive any and all claims or rights to interest on money claimed to be due pursuant to this Agreement and waives any and all such rights to interest which it claims it may otherwise be entitled pursuant to law, including, but not limited to, the Local Government Prompt Payment Act (50 ILCS 501/1, etseq.), as amended, or the Illinois Interest Act (815 ILCS 205/1, et seq.), as amended. The parties hereto further agree that any action by the ATTORNEYS arising out of this Agreement must be filed within one year of the date the alleged cause of action arose or the same will be time -barred. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. i,E INDEMNIFICATION To the fullest extent permitted by law, ATTORNEYS agrees to and shall indemnify and hold harmless the CITY, its officers, employees,- agents, boards and commissions from and against any and all claims, suits, judgments, costs, attorneys fees, damages or other relief, including, but not limited to, workers' compensation claims, in any way resulting from or arising out of a breach of this Agreement by the ATTORNEYS and/or negligent actions or omissions of the ATTORNEYS in connection herewith, including negligence or omissions of the ATTORNEYS, members, employees or agents ofthe ATTORNEYS arising out ofthe performance of this Agreement. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. 10. NO PERSONAL LIABILITY No official, director, officer, agent or employee of the CITY shall be charged personally or held contractually liable under any term or provision of this Agreement or because of their execution, approval or attempted execution of this Agreement. 11. INSURANCE The ATTORNEYS and each of the individual ATTORNEYS performing services pursuant to this Agreement shall purchase and maintain during the term of this Agreement insurance coverage which will satisfactorily insure the ATTORNEYS and the individual ATTORNEYS, against claims and liabilities which arise out of the work of the POLICE INTERNAL INVESTIGATIONS. Such insurance shall be issued by companies authorized to do business in the State of Illinois. The insurance coverages shall include, but not necessarily be limited to, professional liability insurance with limits of not less than $1,000,000 per claim covering the ATTORNEYS and the individual ATTORNEYS providing services pursuant to this Agreement against all sums which the ATTORNEYS may become obligated to pay on account of any liability arising out of the performance of the professional service for the CITY under this Agreement when caused by any negligent act, error, or omission of the ATTORNEYS or any of the individual ATTORNEYS, or others for which whose actions the ATTORNEYS is legally liable. A certificate of insurance will be provided upon entry into this Agreement and upon any renewal during the term ofthe Agreement. Professional liability insurance shall remain in full force for a period of not less than six (6) years after the completion of the services to be performed by the ATTORNEYS under this Agreement. 12. NONDISCRIMINATION In all hiring or employment made possible or resulting from this Agreement, there shall be no discrimination against any employee or applicant for employment because of sex, age, race, color, creed, national origin, marital status, of the presence of any sensory, mental or physical handicap, unless based upon a bona fide occupational qualification, and this requirement shall apply to, but not be limited to, the following: employment advertising, -5- layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. No person shall be denied or subjected to discrimination in receipt of the benefit of any services or activities made possible by or resulting from this Agreement on the grounds of sex, race, color, creed, national origin, age except minimum age and retirement provisions, marital status or the presence of any sensory, mental or physical handicap. Any violation of this provision shall be considered a violation of a material provision of this Agreement and shall be grounds for cancellation, termination or suspension, in whole or in part, of the Agreement by the CITY. 13. ASSIGNMENT Neither this Agreement, nor any part, right nor interest hereof, may be assigned to any other person, firm or corporation. 14. NO CO -PARTNERSHIP OR AGENCY; INDEPENDENT CONTRACTOR RELATIONSHIP This Agreement shall not be construed so as to create a partnership, joint venture, employment or other agency relationship between the parties hereto. The parties intend that and this Agreement shall be construed as creating an independent contractor relationship between the ATTORNEYS and the CITY. 15. SEVERABILITY The parties intend and agreed that, if any paragraph, sub -paragraph, phrase, clause or other provision of this Agreement, or any portion thereof, shall be held to be void or otherwise unenforceable, all other portions of this Agreement shall remain in full force and effect. 16. HEADINGS The headings of the several paragraphs of this Agreement are inserted only as a matter of convenience and for reference and in no way are they intended to define, limit or describe the scope of intent of any provision of this Agreement, nor shall they be construed to affect in any manner the terms and provisions hereof or the interpretation or construction thereof. 17. MODIFICATION OR, AMENDMENT This Agreement constitutes the entire Agreement of the parties on the subject matter hereof and may not be changed, modified, discharged or extended except by written amendment duly executed by the parties. Each party agrees that no representations or warranties shall be binding upon the other party unless expressed in writing herein or in a duly executed amendment hereof, or change order as herein provided. '1+� 18. APPLICABLE LAW This Agreement shall be deemed to have been made in, and shall be construed in accordance with the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights pursuant to this Agreement shall be in the Circuit Court of Kane County, Illinois. 19. WAIVER Any failure of either the CITY or the ATTORNEYS to strictly enforce any term, right, or condition of this Agreement shall not be construed as a waiver of such term, right, or condition. 20. NEWS RELEASES The ATTORNEYS shall not issue any news releases nor make statements to the media without prior approval from the POLICE CHIEF. 21. INTERFERENCE WITH PUBLIC CONTRACTING The ATTORNEYS certify hereby that it is not barred from submitting a proposal on this Agreement as a result of a violation of 720 ILCS 5/33E et seq. or any similar state or federal statute regarding bid rigging. 22. SEXUAL HARASSMENT As a condition of this contract, the ATTORNEYS shall have written sexual harassment policies that include, at a minimum, the following information: A. the illegality of sexual harassment; B. the definition of sexual harassment under state law; C. a description of sexual harassment, utilizing examples; D. the vendor's internal complaint process including penalties; E. the legal recourse, investigative and complaint process available through the Illinois Department of Human Rights, and the Illinois Human Rights Commission; F. directions on how to contact the department and commission; G. protection against retaliation as provided by Section 6-101 ofthe Human Rights Act. A copy of the policies shall be provided by ATTORNEYS to the Department of Human Rights upon request. 775 ILCS 5/2-105. -7- 23. SUBCONTRACT No portion of the work to be provided by the ATTORNEYS shall be subcontracted without the prior written approval of the CITY. 24. FREEDOM OF INFORMATION ACT The ATTORNEYS shall, within twenty-four hours of the CITY'S request, provide any documents in the ATTORNEYS' possession related to the Agreement which the CITY is required to disclose to a requestor under the Illinois Freedom of Information Act. 25. NOTICES All notices, reports and documents required under this Agreement shall be in writing and shall be mailed by First Class Mail, postage prepaid, or by e-mail, addressed as follows: A. As to the CITY: Ana Lalley Police Chief City of Elgin 151 Douglas Avenue Elgin, Illinois 60120-5555 Lalley a@cityofelgin.orP_ B. As to the ATTORNEYS: Stephen H. DiNolfo Ottosen DiNolfo Hasenbalg & Castaldo, Ltd. 1804 N. Naper Boulevard, Suite 350 Naperville, Illinois 60563 sdinolfo(di ottosenlaw,com 26. COMPLIANCE WITH LAWS Notwithstanding any other provision of this Agreement it is expressly agreed and understood that in connection with the performance of this Agreement that the ATTORNEYS shall comply with all applicable federal, state, city and other requirements of law. 27. EXECUTION IN COUNTER -PARTS This Agreement may be executed in counterparts. Signatures transmitted by facsimile or e- mail shall have the same legal effect as original signatures. -8- IN WITNESS WHEREOF, the parties hereto have entered into and executed this agreement effective as of the date and year first written above. OTTOSEN DINOLFO HASENBALG & CITY OF ELGIN CASTALDO, LTD. -, = ....... �. 3y By; _ Richard G. Kozal, Ciiy Manager - — Its7wi e e'r_tG•- 4'E k FAI-egal Dept\AgreementlFolice Internal Investigations Agr-Ottosen DiNolfo-Clean-2-2-21.docx