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HomeMy WebLinkAboutContract 41717STATE OF TEXAS § COUNTY OF TARRANT § CJTY SECRETy CONTRACTNO_'tV7i 1 KNOWN ALL BY THESE PRESENTS: THIS AGREEMENT, entered into the 31 day of March, 2011 by and between the City of Fort Worth, a home -rule municipal corporation situated in Tarrant, Denton, Parker, and Wise Counties, Texas, acting herein by and through its duly authorized Assistant City Manager, hereinafter called the "City", and MAXIMUS Consulting Services, Inc. an independent contractor "Consultant". City and Consultant may be referred to herein individually as a Party, or collectively as the Parties. WITNESSETH That for and in consideration of mutual covenants and agreements herein contained, the Parties hereto mutually agree as follows: ARTICLE 1 SERVICES Section 1. Consultant hereby agrees to perform as an independent contractor the services set forth in the Scope of Services attached hereto as Attachment "A". These services shall be performed in connection with Fort Worth TPW Multiplier Analysis ("Project"). Section 2. Additional services, if any, will be requested in writing by the City. City shall not pay for any work performed by Consultant or its subconsultants, subcontractors and/or suppliers that has not been ordered in writing. It is specifically agreed that Consultant shall not be compensated for any alleged additional work resulting from oral orders of any person. ARTICLE 2 COMPENSATION Consultant shall be compensated in accordance with the Fee Schedule shown in Attachment "B". Payment shall be considered full compensation for all labor, materials, supplies, and equipment necessary to complete the services described in Attachment "A". However the total fee paid by the City shall not exceed a total of $18,000 unless the City and the Consultant mutually agree upon a fee amount for additional services and amend this Agreement accordingly. The Consultant shall provide monthly invoices to the City. Payment for services rendered shall be due within thirty (30) days of the uncontested performance of the particular services so ordered and receipt by City of Consultant's invoice for payment of same. OFFICIAL RECORD CITY SECT FTARY Ft WORTH, TX Acceptance by Consultant of said payment shall operate as and shall release the City from all claims or liabilities under this Agreement for anything related to, done, or furnished in connection with the services for which payment is made, including any act or omission of the City in connection with such services. ARTICLE 3 TERM Unless terminated pursuant to the terms herein, this Agreement shall be for a term of one year, beginning upon the date of its execution, or until the completion of the subject matter contemplated herein, whichever occurs first ARTICLE 4 INDEPENDENT CONTRACTOR Consultant shall operate hereunder as an independent contractor, and not as an officer, agent, servant, or employee of the City. Consultant shall have exclusive control of and the exclusive right to control the details of its work to be performed hereunder and all persons performing same, and shall be solely responsible for the acts and omissions of its officers, agents, employees, contractors and subcontractors. The doctrine of respondent superior shall not apply as between City and Consultant, its officers, agents, employees, contractors, and subcontractors, and nothing herein shall be construed as creating a partnership or joint venture between City and Consultant. ARTICLE 5 PROFESSIONAL COMPETENCE AND INDEMNIFICATION Section 1 Work performed by Consultant shall comply in all aspects with all applicable local, state and federal laws and with all applicable rules and regulations promulgated by the local, state and national boards, bureaus and agencies. Approval by the City shall not constitute or be deemed to be a release of the responsibility and liability of Consultant or its officers, agents, employees, contractors and subcontractors for the accuracy and competency of its services performed hereunder. Section 2 In accordance with Texas Local Government Code Section 271.904, the Consultant shall indemnify, hold harmless, and defend the City against liability for any damage caused by or resulting from an act of negligence, intentional tort, intellectual property infringement, or failure to pay a subcontractor or supplier committed by the Consultant or Consultant's agent, consultant under contract, or another entity over which the Consultant s exercises control. Professional Services Consultant Agreement Rev 10.6.09 Page 2 of 12 ARTICLE 6 INSURANCE Section 1. Consultant shall not commence work under this Agreement until it has obtained all insurance required under this Article and the City has approved such insurance, nor shall Consultant allow any subcontractor to commence work on its subcontract until all similar insurance of the subcontractor has been so obtained and approval given by the City; provided, however, Consultant may elect to add any subconsultant as an additional insured under its liability policies. Professional Liability $1,000,000 per claim and aggregate. Professional Liability insurance may be written on an occurrence of claims - made basis If coverage is wiitten on a claims -made basis, the retroactive date shall be coincident with or prior to the date of the contractual agreement. The certificate of insurance shall state that the coverage is claims -made and include the retroactive date. The insurance shall be maintained for the duration of the contractual agreement, and for five (5) years following completion of the service provided under the contractual agreement, or for the warranty period, whichever is longer. An annual certificate of insurance submitted to the City shall evidence coverage. Commercial General Liability $1,000,000 each occurrence $1,000,000 aggregate Automobile Liability $1,000,000 each accident (or reasonably equivalent limits of coverage if written on a split limits basis). Coverage shall be on any vehicle used in the course of the Project. Worker's Compensation Coverage A: statutory limits Coverage B $100,000 each accident $500,000 disease - policy limit $100,000 disease - each employee Section 2. Additional Insurance Requirements a Except for employer's liability insurance coverage under Consultant's worker's compensation insurance policy, the City, its officers, employees and servants shall be endorsed as an additional insured on Consultant's insurance policies. Professional Services Consultant Agreement Rev 10.6.09 Page 3 of 12 b. Certificates of insurance shall be delivered to the Fort Worth Transportation and Public Works Department, Attention: Sherry Simpson, 1000 Throckmorton Street, Fort Worth, TX 76102 prior to commencement of work. c. Any failure on part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirements specified herein. d 1-,ach insurance policy shall be endorsed to provide the City a minimum thirty days notice of cancellation, non -renewal, and/or material change in policy terms or coverage. A ten days notice shall be acceptable in the event of non-payment of premium. e. Insurers must be authorized to do business in the State of Texas and have a current A.M. Best rating of A: VII or equivalent measure of financial strength and solvency. f. Other than worker's compensation insurance, in lieu of traditional insurance, City may consider alternative coverage or risk treatment measures through insurance pools or risk retention groups The City must approve in writing any alternative coverage. g. Workers' compensation insurance policy(s) covering employees employed on the Project shall be endorsed with a waiver of subrogation providing rights of recovery in favor of the City. h. City shall not be responsible for the direct payment of insurance premium costs for Consultant's insurance. i. Consultant's insurance policies shall each be endorsed to provide that such insurance is primary protection and any self -funded or commercial coverage maintained by City shall not be called upon to contribute to loss recovery. j. In the cow se of the Agreement, Consultant shall report, in a timely manner, to City s officially designated contract administrator any known loss occurrence which could give rise to a liability claim or lawsuit or which could result in a property loss. k Consultant's liability shall not be limited to the specified amounts of insurance required herein. 1. Upon the request of City, Consultant shall provide complete copies of all insurance policies required by these Agreement documents. ARTICLE 7 TRANSFER OR ASSIGNMENT City and Consultant each bind themselves, and their lawful successors and assigns, to this Agreement. Consultant, its lawful successors and assigns, shall not assign, sublet or transfer any interest in this Agreement without prior written consent of the City. Professional Services Consultant Agreement Rev 10.6.09 Page 4 of 12 ARTICLE 8 TERMINATION OF CONTRACT Section 1. City may terminate this Agreement for its convenience on 30 days' written notice Either the City or the Consultant for cause may terminate this Agreement if either Party fails substantially to perform through no fault of the other and does not commence correction of such nonperformance with 5 days of written notice and diligently complete the correction thereafter Section 2. If City chooses to terminate this Agreement under Article 8, upon receipt of notice of termination, Consultant shall discontinue services rendered up to the date of such termination and City shall compensate Consultant based upon calculations in Article 2 of this Agreement and Exhibit "B" attached hereto and incorporated herein. Section 3. All reports, whether partial or complete, prepared under this Agreement, including any original drawings or documents, whether furnished by the City, its officers, agents, employees, consultants, of contractors, or prepared by Consultant, shall be or become the property of the City, and shall be furnished to the City prior to or at the time such services are completed, or upon termination or expiration of this Agreement ARTICLE 9 RIGHT TO AUDIT (a) Consultant agrees that the City shall, until the expiration of three (3) years after final payment under this Agreement, have access to and the right to examine any directly pertinent books, documents, papers and records of Consultant involving transactions relating to this Agreement. Consultant agrees that the City shall have access during normal working hours to all necessary facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. City shall give Consultant reasonable advance notice of intended audits. (b) Consultant further agrees to include in all its subcontracts hereunder, a provision to the effect that the subcontracting consultant agrees that the City shall, until the expiration of three (3) years after final payment under the subcontract, have access to and the right to examine any directly pertinent books, documents papers and records of such subconsultant, involving transactions to the subcontract, and further, that City shall have access during normal working hours to all subconsultant facilities, and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this article City shall give Consultant and any subconsultant reasonable advance notice of intended audit. (c) Consultant and subconsultants agree to photocopy such documents as may be requested by the City. The City agrees to reimburse Consultant for the cost of copies at the rate published in the Texas Administrative Code in effect as of the time copying is performed Professional Services Consultant Agreement Rev 10.6.09 Page 5 of 12 (d) Consultant shall, upon notice of audit, make work papers and other records available to the auditors. The Consultant's sole responsibility under an audit shall be to provide reasonable assistance to the City through the audit and to make those changes to the cost allocation plan required as a result of the audit. Under no circumstances whatsoever shall the Consultant be liable for any audit disallowances. (e) The Consultant shall provide guidance to City in determining the data required for work performed under this contract. To the best of its knowledge, the City guarantees the accuracy and completeness of the data it provides the Consultant. The City acknowledges and agrees that Consultant shall be entitled to rely upon the accuracy and completeness of the data provided by the City to perform the work under this contract and the Consultant shall not be liable for any missed or lost revenue associated with, or related to, the services provided pursuant to this contract. ARTICLE 10 MINORITY AND WOMAN BUSINESS ENTERPRISE (M/WBE) PARTICIPATION In accordance with City Ordinance No. 15530, the City has goals for the participation of minority business enterprises and woman business enterprises ("M/WBE") in City contracts. Consultant acknowledges the M/WBE goal established for this Agreement and its commitment to meet that goal. Any misrepresentation of facts (other than a negligent misrepresentation) and/or the commission of fraud by the Consultant may result in the termination of this Agreement and debarment from participating in City contracts for a period of time of not less than three (3) years. ARTICLE 11 OBSERVE AND COMPLY Consultant shall at all times observe and comply with all federal, state, and local laws and regulations and with all City ordinances and regulations which in any way affect this Agreement and the work hereunder, and shall observe and comply with all orders, laws ordinances and regulations which may exist or may be enacted later by governing bodies having jurisdiction or authority for such enactment. No plea of misunderstanding or ignorance thereof shall be considered. Consultant agrees to defend, indemnify and hold harmless City and all of its officers, agents and employees from and against all claims or liability arising out of the violation of any such order, law, ordinance, or regulation, whether it be by itself or its employees. ARTICLE 12 VENUE AND JURISDICTION 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. Professional Services Consultant Agreement Rev 10.6.09 Page 6 of 12 ARTICLE 13 CONTRACT CONSTRUCTION The Parties acknowledge that each party and, if it so chooses, its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party must not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. ARTICLE 14 SEVERABILITY The provisions of this Agreement are severable, and if any word phrase, clause, sentence, paragraph, section or other part of this Agreement or the application thereof to any person or circumstance shall ever be held by any court of competent jurisdiction to be invalid or unconstitutional for any reason, the remainder of this Agreement and the application of such word, phrase, clause, sentence, paragraph, section, or other part of this Agreement to other persons or circumstances shall not be affected thereby and this Agreement shall be construed as if such invalid or unconstitutional portion had never been contained therein. ARTICLE 15 NOTICES Notices to be provided hereunder shall be sufficient if forwarded to the other Party by hand - delivery or via U.S. Postal Service certified mail return receipt requested, postage prepaid, to the address of the other Party shown below: City of Fort Worth Attn: Sherry Simpson Transportation and Public Works Dept 1000 Throckmorton Street Fort Worth, Texas 76102 Consultant: MAXIMUS Consulting Services, Inc. Attn; James T. Brown 1452 Hughes Rd, Ste 325 Grapevine, Texas 76051 ARTICLE 16 HEADINGS The headings contained herein are for the convenience in reference and are not intended to define or limit the scope of any provision of this Agreement Professional Services Consultant Agreement Rev 10.6.09 ARTICLE 17 COUNTERPARTS Page 7 of 12 This Agreement may be executed in one or more counterparts and each counterpart shall, for all purposes, be deemed an original, but all such counterparts shall together constitute but one and the same instrument. Professional Services Consultant Agreement Rev 10.6.09 (Remainder of Page Intentionally Left Blank) Page 8 of 12 IN WITNESS THEREOF, the parties hereto have made and executed this Agreement in multiple originals the day and year first above written, in Fort Worth, Tarrant County, Texas. CITY OF FORT WORTH: MAXIMUS Consulting Services, Inc.: 472neese4 Fernando Costa Assistant City Manager 1444•ko RECOMMENDED: \, Fct V\A- t Depai .E., Acting • Director ansportation and Public Work APPROVED AS TO FORM AND LEGALITY: %sae eidAt S it Assistant City Attorney_ j\nPtc:t.Pt E. (-MSc ATTEST: \N\ &41--1\01( Marty Hendrix City Secretary 1.-\\-/nAat2,-D 1\ Date Professional Services Consultant Agreement • Rev 10.6.09 Adam Polatnick Vice President Assistant General Counsel NO M&C :EQUIRED 1 • ;;'i 17 ,. _, Page 9 of 12 ATTACHMENT "A" SCOPE OF SERVICES Consultant represents that it has, or will secure at its own expense, all personnel required in the performance of services under this Agreement. All of the services required hereunder will be performed by Consultant or under its supervision, and all personnel engaged in the work shall be fully qualified to perform the services described herein. Consultant shall commence, carry on, and complete the services with all practicable dispatch, in a sound, economical, and efficient manner, in accordance with the provisions herein and all applicable laws. Consultant reserves the right to subcontract for services hereunder. Consultant agrees to notify Client in writing of any such subcontracts. Our understanding is that the TPW requires a review of the current methodology used to determine the hourly multiplier rate. The multiplier rate is applied to TPW staff hourly rates to recover the full costs of the department from the capital projects worked on by the TPW staff. MAXIMUS staff will review the current methodology and policies, analyze the staff and costs that are included in the rate determination for appropriateness, perform sample tests of the project hours charged for correct coding, and prepare the cost analysis and rates. Please refer to the Work Breakdown Schedule below for the detailed tasks of the study. MAXIMUS is not proposing to conduct a certified audit of the financial data and any other requested data. We shall be entitled to rely on the accuracy of financial data the TPW provides. In no event shall either party, its directors, officers, employees or agents be liable for any special, incidental, punitive or consequential damages arising out of or caused by any inaccuracies in the review. Fxcluding property damage personal injury, and infringement, our liability (if any) to customer or any third party is limited to $150,000. Consultant represents that it has, or will secure at its own expense, all personnel required in the performance of services under this Agreement. All of the services required hereunder will be performed by Consultant or under its supervision, and all personnel engaged in the work shall be fully qualified to perform the services described herein. Consultant shall commence, carry on, and complete the services with all practicable dispatch, in a sound, economical, and efficient manner, in accordance with the provisions herein and all applicable laws. Consultant reserves the right to subcontract for services hereunder. Consultant agrees to notify Client in writing of any such subcontracts. Professional Services Consultant Agreement Rev 10.6.09 Page 10 of 12 Attachment A Consultant Hour Summary Project hours Total Hours, all tasks Hourly Rates Hourly Charges Travel and Sundry supplies Phase I: Preparation of Central Service Full Cost Allocation Plan Task 1: Data Request of available financial information, staffing reports, project report, and departmental organization charts for the department. 'Task 2: Re\ew city fiscal policy concerning retained earnings/fund balances. Task 3: Review of budget process for retienue determination Task 4: Review of financial data and respective personnel reports for accuracy, alailability, and applicability Task 5: Preparation of cost of service rates a. Meeting with City's liaisons and staff to discuss initial findings. b. Review departmental activities c. Review departmental expenditures for determination of activity expense and alloviability. d. Analyze the labor coding and charges. e. Additional Data Request resulting from interviews. Task 6: Prepare cost allocation schedules for cost of service plans. a. Develop costing schedules presenting allowable/unallowble costs, cost activities, and allocation statistics for the cost of services allocation plans. Task 7: Prepare draft reports and \anance analysis. a. Prepare draft reports. b. Prepare tianance analysis of central senwce allocated costs to benefitting departments. c. Review 1st drafts d. Edit 1st draft Task 8: Prepare formal reports and presentation Project Executive Quality Assurance & Control Project Director Project Manager 2,00 2,00 8,00 63,00 Project Consultant . • • • Total 69,00 144,00 2,00 2,00 8400 63,00 69,00 190,00 5 155,00 $ 95,00 • 5 - $ 1,520,00 $9,765,00 $6,555,00 80,00 80,00 $ - 5 1,520,00 $9,845,00 $6,635,00 HOURS 1.00 1.00 4.00 2.00 6.00 8.00 2.00 8.00 2.00 4.00 4.00 2.00 8.00 16.00 16.00 2.00 2.00 2.00 2.00 1.00 2,00 2,00 2.00 32.00 2.00 2.00 2.00 1.00 5.00 5.00 8,00 63,00 69,00 Professional Services Consultant Agreement Rev 10.6.09 144,00 440.00 17,840,00 160,00 18,000,00 140,00 9 10 Page 11 of 12 ATTACHMENT "B" FEE SCHEDULE For services provided as set forth in Exhibit A, Client agrees to pay Consultant compensation in the amount of eighteen thousand dollars ($18,000). Consultant will render to Client one or more invoices for the fees specified herein, with payment due by thirty (30) days after the due date. Professional Services Consultant Agreement Rev 10.6.09 Page 12 of 12