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HomeMy WebLinkAboutContract 36855 CITY SECRETARY CONTRACT NO. _ PROFESSIONAL SERVICES AGREEMENT 1 This Services Agreement ("Agreement") is effective as of the s{ day of , 2008 ("Effective Date"), by and between the City of Fort Worth, Texas, a home rule municipal corporation situated in Tarrant, Denton, and Wise Counties, Texas (hereinafter referred to as "the City") and MAXIMUS Financial Services, Inc. FEIN 26- 1557956 (hereinafter referred to as "MAXIMUS") with reference to the following: WHEREAS, the City requires and is requesting a review of the Department of Engineering overhead multiplier; and WHEREAS, MAXIMUS has the requisite experience and expertise and is willing to provide such services. NOW, THEREFORE, in consideration of the mutual terms, conditions and covenants set forth herein, the parties agree as follows: 1. SCOPE OF SERVICES The City hereby engages MAXIMUS to perform the services as described Exhibit A, Scope of Services. During the term of this Agreement the City may request changes in the Scope of Services. Any such change, including any increase or decrease in the amount of MAXIMUS' compensation, requires the mutual agreement of the parties and shall be effective when incorporated by written amendment to this Agreement. 2. COMPENSATION AND METHOD OF PAYMENT The maximum amount to be paid to MAXIMUS for all professional services performed hereunder shall be $8,500. The City agrees to pay the invoice within thirty (30) days of receipt. In the event the City disputes a portion of an invoice, the City agrees to pay the undisputed portion of the invoice within thirty (30) days of receipt and to provide MAXIMUS a detailed statement of the City's position on the disputed portion of the invoice within thirty (30) days of receipt. The City's failure to pay any amount of an invoice that is not the subject of a good-faith dispute within thirty (30) days of receipt shall entitled MAXIMUS to charge interest on the overdue portion at the lower of 1.5% per month or the highest rate permitted by law. 3. TERM OF CONTRACT Unless terminated pursuant to Section 7 and/or 8 hereof, the term of this Agreement shall be one year from the Effective Date, or until completion of the subject matter contemplated herein,7h chever occurs first. MAE ?� YOKE r c ' G�c 4. RESPONSIBILITIES A. The parties understand and agree that the City is providing certain personnel resources and facilities to MAXIMUS in connection with selected tasks under this Agreement and MAXIMUS is relying on the availability of such resources. The City shall provide these resources in a timely manner and represents that the personnel resources are appropriately qualified and capable of performing the assigned tasks. B. MAXIMUS shall document all costs by maintaining complete and accurate records of all financial transactions associated with this Agreement, including, but not limited to, invoices and other official documentation which sufficiently support all charges under this Agreement. C. MAXIMUS shall retain financial, programmatic, the City data and other service records for three (3) years from the date services are completed. 5. RIGHTS IN DATA The City shall have a perpetual, nontransferable, paid-up right and license for purposes of its internal business to use, copy, modify and prepare derivative works of the deliverable items developed by MAXIMUS in the course of the services pursuant to this Agreement, whether jointly or individually, subject to the Confidentiality provisions of this Agreement. 6. INDEPENDENT CONTRACTORS A. This Agreement shall not constitute, create, or otherwise imply an employment, joint venture, partnership, agency or similar arrangement, and nothing contained herein shall be construed as providing for the sharing of profits or losses arising from the efforts of either or both of the parties hereto. Each party to this Agreement shall act as an independent contractor, and neither party shall have the power to act for or bind the other party except as expressly provided for herein. MAXIMUS assumes sole responsibility for determining the manner and means of performance hereunder. B. MAXIMUS and its employees shall not be eligible for any benefit available to employees of the City, including, but not limited to, workers compensation insurance, state disability insurance, unemployment insurance, group health and life insurance, vacation pay, sick pay, severance pay, bonus plans, pension plans, savings plans and the like. C. No income, social security, state disability or other federal or state payroll tax shall be deducted from payments made to MAXIMUS under this Agreement. MAXIMUS agrees to pay all state and federal income taxes and other levies and charges as they become due on account of monies paid to MAXIMUS hereunder, and to defend, indemnify and hold the City harmless from and against any and all liability resulting from aiiy-failure to du so. U ? r l5 ILi nq1 Page 2 of 11 D. MAXIMUS' services shall be exempt from State sales, use or similar taxes. However, in the event any such taxes are applicable to this contract, such taxes shall be treated as a reimbursable business expense under the terms of this Agreement. E. MAXIMUS may provide services to others during the same period MAXIMUS provides service to the City under this Agreement. 7. TERMINATION FOR CONVENIENCE A. The City may terminate this Agreement for its convenience at any time by giving at least thirty days notice in writing to MAXIMUS. In the event of termination pursuant to this Section, MAXIMUS shall be entitled to receive payment for all work completed or in progress, and for costs reasonably incurred to close out its services. Compensation is to include fees, expenses, and liabilities to subconsultants or other third parties. MAXIMUS will make reasonable attempts to cancel all such liabilities in order to mitigate the cost to the City. If this Agreement is terminated due to the fault of MAXIMUS, Section 8 hereof relative to termination shall apply. B. This Agreement may be terminated by the City if all or part of applicable funding becomes unavailable to the City. If applicable funding is reduced, the City may either cancel this Agreement or offer a contract amendment reflecting the reduced funding. If this Agreement is cancelled, the City agrees to reimburse MAXIMUS for all expenditures made in good faith that are unpaid at the time of termination, including all work products completed or in-process, and for the time required to discontinue onsite activities in an orderly manner, not to exceed the maximum amount payable under this Agreement. 8. TERMINATION FOR DEFAULT Either party shall have the right to terminate this Agreement if the other party is in default of any obligation hereunder and such default is not cured within thirty (30) days of receipt of a written notice specifying such default. In the event of such a termination, the City shall reimburse MAXIMUS for all work completed prior to such termination. 9. LIMITATION OF LIABILITY In no event shall MAXIMUS be liable for special, indirect, incidental, economic, consequential or punitive damages even if MAXIMUS has been advised of the likelihood of such damages. Consultant total liability to the City for any and all damages whatsoever arising out of or in any way related to this Contract from any cause, including but not limited to negligence, errors, omissions, strict liability, breach of contrail-or-breach of warranty shall not exceed, in the aggregate, ten times the fees actually paid to Consultant during the contract term. It Page 3 of 11 10. INSURANCE MAXIMUS shall maintain the following insurance during the term of this Agreement: A. Worker's Compensation and Employer's Liability Insurance in accordance with applicable law. B. Commercial General Liability Insurance on a per occurrence basis with limits of liability not less than $1,000,000 per occurrence and aggregate combined single limit, Personal Injury, Bodily Injury and Property Damage. C. Automobile Liability Insurance with limits of liability of not less than $1,000,000 per occurrence combined single limit including Bodily Injury and Property Damage. Coverage shall include all owned vehicles, all non-owned vehicles, and all hired vehicles. D. Professional Errors and Omissions Insurance which shall include MAXIMUS' Computer Errors and Omissions Coverage, with limits not less than $1,000,000 per claim and in the aggregate. 11. INDEMNIFICATION MAXIMUS agrees to defend, indemnify and hold harmless the City and its officials, agents and employees from and against third party claims, actions, suits or proceedings brought against said parties to the extent caused by the negligent act, error, or omission of MAXIMUS or anyone for whom it is legally liable in the performance of services hereunder. MAXIMUS is not required hereunder to defend, indemnify and hold harmless The City from liability resulting from its negligence or wrongful acts. The indemnity required hereunder shall not be limited by reason of the specification of any particular insurance coverage in this Agreement. 12. NON-SOLICITATION The parties agree that, during the term of this Agreement and for a period of one year from the termination of this Agreement, neither party will solicit for employment or otherwise attempt to hire any employees of the other party or its affiliates who were involved in the performance or direct oversight of this Agreement without the prior written consent of such party. 13. COMPLIANCE WITH LAW A. In renderin services under this Agreement, MAXIMUS shall comply with all a e ederal,-st a and local laws, rules and regulations pertaining to equal �,9 U;Ko Page 4 of I I employment opportunity and shall not discriminate based on age, ancestry, color, gender, marital status, medical condition, national origin, physical or mental disability, race, religion or sexual orientation. B. MAXIMUS will comply with all applicable federal, state and local laws, rules and regulations regarding the maintenance of a drug-free workplace. 14. CONFIDENTIALITY MAXIMUS agrees that all information disclosed by the City to MAXIMUS shall be held in confidence and used only in performance under this Agreement. MAXIMUS shall exercise the same standard of care to protect such information as is used to protect its own proprietary or trade secret information. The City understands and agrees that it may have access to confidential or proprietary information, processes or documentation owned or controlled by MAXIMUS. The City understands and agrees that disclosure or use of such information, processes or documentation may violate MAXIMUS' trademarks, copyrights or other proprietary rights. The City agrees to exercise reasonable standards of care to protect such information, processes or documentation. 15. INSPECTION Authorized representatives of the City may inspect or audit MAXIMUS' performance and records pertaining to this Agreement at the MAXIMUS business office during normal business hours. 16. ASSIGNMENT Neither party shall assign or transfer this Agreement nor any duties or obligations hereunder without the prior written approval of the other party. la _ _ Page 5of11 17. NOTICES All notices under the Agreement will be in writing and will be delivered by personal service, facsimile or certified mail, postage prepaid, or overnight courier to such address as may be designated from time to time by the relevant party, which initially shall be the address set forth below: CITY of FORT WORTH MAXIMUS Malena Doty Bruce Cowans City of Fort Worth MAXIMUS Financial Services, Inc. Engineering Department 13601 Preston Road, Ste 201 E 1000 Throckmorton Dallas, TX 75240 Fort Worth, TX 76102 Any notice sent by certified mail will be deemed to have been given five (5) days after the date on which it is mailed. All other notices will be deemed given when received. No objection may be made to the manner of delivery of any notice actually received in writing by an authorized agent of a party. 18. GOVERNING LAW If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas— Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. 19. SURVIVAL Notwithstanding the expiration or early termination of this Agreement, the provisions hereof pertaining to Confidentiality and Non-Solicitation shall survive. 20. SEVERABILITY If any provision of the Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any manner. ^to :II9 TLG� Page 6 of 11 21. FORCE MAJEURE Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, acts of God, war, governmental action, labor conditions, material shortages or any other cause which is beyond the reasonable control of such party. 22. WAIVER No provision of the Agreement may be waived unless in writing, signed by both of the parties hereto. Waiver of a breach of any provision of the Agreement shall not operate or be construed as a waiver of any subsequent breach of such provision, nor shall a waiver of any one provision of the Agreement be deemed to be a waiver of any other provision. 23. AMENDMENTS, SUPPLEMENTS The Agreement may be amended or supplemented only by the mutual written consent of the parties' authorized representatives. 24. BINDING EFFECT, BENEFITS The Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. Notwithstanding anything contained in the Agreement to the contrary, nothing in the Agreement, expressed or implied, is intended to confer on any person other than the parties hereto or their respective successors and assigns, any rights, remedies, obligations or liabilities under or by reason of the Agreement. 25. HEADINGS The Section headings in the Agreement are inserted only as a matter of convenience, and in no way define, limit, or extend or interpret the scope of the Agreement or of any particular Article or Section. 26. AUTHORIZATION Each of the parties represents and warrants that the Agreement is a valid and binding obligation enforceable against it and that the representative executing the Agreement is duly authorized and empowered to sign the Agreement. 27. COUNTERPARTS The Agreement may be executed simultaneously in two or more counterparts, each of Page 7 of 11 which shall be deemed an original, but all of which together shall constitute one and the same instrument. 28. ENTIRE AGREEMENT The Agreement and any schedules and exhibits thereto contain the entire agreement and understanding of the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior discussions, representations and understandings, whether oral or written. 29. MINORITY and WOMEN BUSINESS (M/WBE) PARTICIPATION In accord with City of Fort Worth Ordinance No. 15530 the City has goals for the participation of minority and woman business enterprises in City contracts. MAXIMUS acknowledges the M/WBE goal established for this Contract and its commitment to meet that goal. Any misrepresentation of facts (other than a negligent misrepresentation) and/or the commission of fraud by the MAXIMUS may result in the termination of this Contract and debarment from participating in City contracts for a period of time of not less than three (3) years. (Remainder of page intentionally left blank.) ik _ Page 8 of Ll IN WITNESS WHEREOF, the parties have executed this Agreement through their duly authorized representatives. MAXIMUS City of Fort Worth F�I'��o Cvs� Assistant City Manager ATTEST: NO M&C REQUIRED _ � � - Marty Hen ix (�.�J City Secretary APPROVED AS TO FORM AND Recommended LEGALITY: by: A y J. mse A. Douglas Rademaker, P.E., Director Assist t City Attorney Department of Engineering YLG10 " _- Page 9 of 11 EXHIBIT A SCOPE OF SERVICES The following identifies the scope of work that will be conducted by MAXIMUS on this project Task 1 — Initial Meeting with Engineering MAXIMUS consultants will meet with Engineering Staff to ensure that the objectives of the study and results expected by the City are clearly understood. At this meeting contact people will be identified. Task 2 — Review of Current Methodology In this task, a detailed review of the current methodology will occur. Specifically, any documentation of how the current rate was developed will be reviewed. MAXIMUS consultants will discuss with the City staff how the rate was developed, how the rate is applied and whether the rate is achieving the objective of full cost recovery and equitable charges to the City departments. Issues covered will include: whether the costs and current methodology comply with OMB Circular A-87; whether all allowable costs are identified; which costs are treated as direct versus indirect; whether an excessive fund balance is occurring; how the reconciliation of costs to departments is occurring; and whether it makes sense to modify the methodology. Task 3 — Develop New Overhead Rate Based on the results of reviewing the current methodology, MAXIUS will receive concurrence from the City as to any changes in the current methodology prior to developing the new overhead rate. In developing the new overhead rate, MAXIMUS consultants will gather expenditure reports, salary information, effort reporting documents, current department charges, etc. Engineering staff will be interviewed to determine who charges projects, who are considered support staff, and if any staff are considered both direct and indirect. Of the staff members who charge their time to projects, a determination needs to be made as to what portion of their time is charged so any uncharged time can be recovered through the multiplier mechanism. Additional information requested will include both actual and planned charges to departments (or projects) and any financial reports showing fund balances in the Engineering ISF. A detailed review of all department line items will be conducted to ensure that all costs are either direct charged or included in the overhead multiplier. An analysis will also be conducted to pick up both department overhead and city-wide overhead and non- departmental costs. After identifying all the costs and properly analyzing them, the new overhead multiplier will be developed. L 13 __ Page 10 of 11 Task 4 — Provide Guidance on the Use of Multiplier After the new rate is developed, the City staff will need to understand not only how to use it, but how to either reconcile costs or conduct roll-forward calculations for future rates. Any rate is developed to be used in a future period. By definition the rate developed is an estimate of what the costs will be in the period of its use. The difference between the actual costs in the future period and the rate charged has to be reconciled so no one is over or undercharged. MAXIMUS consultants will work with the City staff to develop a reconciliation mechanism that will work for the City. -- Page 11 of 11