HomeMy WebLinkAboutContract 44600 (3)c��r s�c����r� � U
CONT�►t�'T N�. L'lL � 7
PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement ("Agreement") is by and between the City of Fort Worth, a
Texas home rule municipal corporation ("the City") and MAXIMUS Consulting Services, Inc., a
corporation authorized to do business in Texas ("MAXIMUS"), to be effective as of the last day
executed by a party hereto. The City and MAXIMUS are each a"Part�' and collectively, the
"Parties".
WHEREAS, the City requires and is requesting a review of the Transportation and Public Works
Department's overhead multiplier; and
WHEREAS, MAXIMUS has the requisite experience and expertise and is willing to provide such
review.
NOW, THEREFORE, in consideration of the mutual terms, conditions and covenants set forth
herein, the parties agree as follows:
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 $8,500.
The City agrees to pay each invoice within thirty (30) days of receipt. In the event the City
disputes a portion of an invoice, the City agrees to pay the undisputed portion of the invoice
within thirty (30) days of receipt and to provide MAXIMUS a detailed statement of the City's
position on the disputed portion of the invoice within thirty (30) days of receipt. The City's failure
to pay any amount of an invoice that is not the subject of a good-faith dispute within thirty (30)
days of receipt shall entitled MAXIMUS to charge interest on the overdue portion at the lower of
1.5% per month or the highest rate permitted by law.
3. TERM OF CONTRACT
Unless terminated pursuant to Section 7 and/or 8 hereof, the term of this Agreement shall be one
year from the Effective Date, or until completion of the subject matter contemplated herein,
whichever occurs first.
4. RESPONSIBILITIES
CFW-MA\IMUS 2013 Overh�cJ�t�$�cjy n fU� � S�u I� Page 1 of 10
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OFFICrAL R�C�RD
CITY SECbt�T'ARY
�'6. INOR'�'H, 'Q'}t
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, and 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 CONTRACI'ORS
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 any failure to do so.
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.
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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 a
thirty day 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 sub consultants 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 FUR 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 ten (10) 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 in good faith 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,
omission, strict liability, breach of contract or breach of warranty shall not exceed, the lesser of
(a) the amount actually paid to Consultant during the contract year in which the claim arose, or
(b) $150,000.
In no event shall Consultant be liable for indirect, special, incidental, economic, consequential or
punitive damages, including but not limited to lost revenue, lost profits, replacement goods, loss
of technology rights or services, loss of data, or interruption or loss of use of software or any
portion thereof regardless of the legal theory under which such damages are sought even if
Consultant has been advised of the likelihood of such damages, and notwithstanding any failure
of essential purpose of any limited remedy.
Any claim by Client against Consultant relating to this Agreement must be made in writing to
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Consultant.
10. Consultant Liability if Audited
The Client represents that all financial and statistical information provided to Consultant by
Client, its employees and/or agents is accurate and complete to the best of Client's
knowledge. Consultant shall, upon notice of audit, make work papers and other records
available to the auditors. Consultant's sole responsibility under an audit shall be to provide
reasonable assistance to the Client through the audit and to make those changes to the
work product as required as a result of the audit. Consultant shall not be liable for any audit
disallowances or any missed or lost revenue associated with, or related to, the Services,
regardless of cause.
11. 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 security failure/privacy
event, security and privacy liability, with limit not less than $1,000,000 per claim and in the
aggregate.
12. 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 the City's
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.
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12. NON-SO�ICITATION
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 �AW
A. In rendering services under this Agreement, MAXIMUS shall comply with all applicable
federal, state and local laws, rules and regulations pertaining to equal 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.
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17. NOTICES
All notices under the Agreement will be in writing and will be delivered by personal service,
facsimile, attachment to electronic mail, 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
Michael Gange
City of Fort Worth
TPW Department
1000 Throckmorton
Fort Worth, TX 76102
MAXIMUS
Mark Rewolinski
Maximus
5628 Green Oaks Blvd, Suite A
Arlington, TX 76017
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 earfy termination of this Agreement, the provisions hereof
pertaining to Confidentiality and Non-Solicitation shall survive.
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. _
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.
21. FORCE MAJEURE
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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 which
shall be deemed an original, but all of which together shall constitute one and the same
instrument.
28. ENTIRE AGREEMENT
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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.
(Remainder of page intentionally left blank.)
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IN WITNESS WHEREOF, the parties have executed this Agreement through their duly
authorized representatives, effective as of the last date written by a Party.
MAXIMUS Consulting Services, Inc
����
Paula Arnold
Contracts Manager
Date: o2v �%utitP , a d (�
APPROVED AS TO FORM AND
LEGALITY:
�1,'�,� �, ��, l,� V1,t � � ��1
�- � Douglas W. Black
�� Assistant City Attorney
City of Fort Worth
c ���a�O � �
Fernando Costa
Assistant City Manager
Date: Z( /3
ATTEST:
ary J.
City Secret�ry
Recommended
by:
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Douglas . Wiersig, Director
Department of Transportation d Public Works
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OFFICIAL REC06dD
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CERTZFICA.TE OF C4�O�tATE SECRE'I'AR�Y
The undersigned Secretary of 11�A.��TIYIUS Consuliing Services, Inc. (the
"Corporation") hereby certifies that Paula Arnold, Manager — Contracts
Administxaiion, has been authorized by the Board of Directors of the Corporation
to sign custoiner proposals and contracts for sezvices on behalf of the Corporation
in accordance with infernal procedures adopted by the Corporation.
IN WT'I`NESS WHEREOF, I have hereunto set my hand and affixed the seal of the
Cozporation, this 19ti' day of June 2012.
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SCOPE OF SERVICES
The following identifies the scope of work that wili be conducted by MAXIMUS on this project
Task 1— Initial Meetinq with TPW
MAXIMUS consultants will meet with TPW 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 Methodoloqy
In this task, a detailed review of the current methodology will occur. Specifically, any
documentation of how the current overhead multiplier 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. TPW 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 mecnanism. Additional information requested will include
both actual and planned charges to departments (or projects) and any financial reports
showing fund balances in the TPW 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.
Task 4— Provide Guidance on the Use of Multiql
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
estirnate 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
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reconciliation mechanism that will work for the City.
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