Loading...
HomeMy WebLinkAboutContract 45798 1; VSECRETAW ,l'ONTRACT NO. 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 "Party" 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: 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 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. OFFICIAL EC(,)RD CITY SECRETARY CFW-MAXIMUS 2013 Overhead Rate Study e I of 10 RECEIVED JUL 2 8 2014 [fit TX 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, 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. . To the extent that the Services provided by MAXIMUS are generated by MAXIMUS proprietary software, nothing contained herein is intended nor shall it be construed to require MAXIMUS to provide such software to City. City agrees that it has no claims of ownership, including copyright, patents or other intellectual property rights to MAXIMUS software. Nothing in this Agreement shall be construed to grant City any rights to MAXIMUS materials created prior to the execution of this Agreement. Any deliverables prepared by MAXIMUS for City included in the Services are specifically set out in Exhibit A. 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 Page 2 of I 1 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. 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 sixty (60) 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 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 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 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. MAXIMUS 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 MAXIMUS during the contract year in which the claim arose, or (b) $150,000. Any claim by City against MAXIMUS relating to this Agreement must be made in writing and presented to MAXIMUS within one (1) year after the date on which MAXIMUS Page 3 of 11 completes performance of the services specified in this Agreement. 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 & Advertising 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 and Privacy Liability, Network Interruption, and Cyber Extortion, , 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, or willful misconduct of MAXIMUS, it's employees or agentsin 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. 12. DATA ACCURACY/AUDIT DISALLOWANCE. MAXIMUS shall provide guidance to City in determining the data required. The City acknowledges and agrees that MAXIMUS shall be entitled to rely upon the accuracy and completeness of the data provided by the City to perform the Services. City shall provide all such data in a timely manner sufficient to allow MAXIMUS to provide the Services. The City represents that all financial and statistical information provided to MAXIMUS by City, its employees and/or agents is accurate and complete to the best of City's knowledge. MAXIMUS shall, upon notice of audit, make work papers and other records available to the auditors. MAXIMUS'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 work product as Page 4 of 11 required as a result of the audit. MAXIMUS shall not be liable for any audit disallowances or any missed or lost revenue associated with, or related to, the Services, regardless of cause. 13. 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. 14. COMPLIANCE WITH LAW 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. 15. 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. 16. 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. 17. ASSIGNMENT Neither party shall assign or transfer this Agreement nor any duties or obligations hereunder without the prior written approval of the other party. Page 5 of 11 18. 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 MAXIMUS Michael Gange Mark Rewolinski City of Fort Worth MAXIMUS TPW Department 5628 Green Oaks Blvd 1000 Throckmorton Suite A Fort Worth, TX 76102 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. 19. 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. 20. SURVIVAL Notwithstanding the expiration or early termination of this Agreement, the provisions hereof pertaining to Confidentiality and Non-Solicitation shall survive. 21. 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. 22. FORCE MAJEURE Neither party shall be liable hereunder by reason of any failure or delay in the performance of its Page 6 of 11 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. 23. 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. 24. AMENDMENTS, SUPPLEMENTS The Agreement may be amended or supplemented only by the mutual written consent of the parties' authorized representatives. 25. 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. 26. 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. 27. 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. 28. 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. 29. ENTIRE AGREEMENT The Agreement and any schedules and exhibits thereto contain the entire agreement and Page 7 of 11 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.) Page 8 of 11 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 City of Fort Worth Fernando Costa Assistant City Manager Date: Date: Adam Polatnick ATTEST: Vice President Assistant General Counsel "No ao J a/'S-s ' City Secretary 01 0 0 APPROVED AS TO FORM AND Recommended LEGALITY: by: DougtaM. Black Douglas V4 Wiersig, Directo� Assistant City Attorney Department of Transportatio and Public Works XX) V* 21 r f OFFICIAL RECORD Cl"ryr SECRETARY Page 9 of 11 FT. WORTH 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 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 Methodolog 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 deficit 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 mechanism. 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 fund 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 fund overhead and city-wide overhead and non-fund costs. After identifying all the costs and properly analyzing them, the new overhead multiplier will be developed. The new overhead multiplier shall clearly break down overhead into identifiable cost centers so as to allow the City to assess the need for the overhead to be covered by the multiplier (e.g., administrative support, IT support, rent, equipment, etc.). Task 4 — Provide Guidance on the Use of Multiplier After the new rate is developed, a meeting between Maximus and City staff will happen to ensure that City staff understands not only how to use it, but how to either reconcile costs Page 10 of 11 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