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HomeMy WebLinkAboutMaximus Consulting Services, Inc. - 2013-01-30PROFESSIONAL SERVICES CONTRACT BETWEEN THE CITY OF HUNTINGTON BEACH AND MAXIMUS CONSULTING SERVICES, INC FOR PREPARATION OF STATE MANDATE REIMBURSEMENT REPORTS THIS AGREEMENT ("Agreement") is made and entered into by and between the City of Huntington Beach, a municipal corporation of the State of California, hereinafter referred to as "CITY," and Maximus Consulting Services, Inc., a Gales corporation, hereinafter referred to as "CONSULTANT." WHEREAS, CITY desires to engage the services of a consultant to provide State SB90 Mandate reimbursement services; and Pursuant to documentation on file in the office of the City Clerk, the provisions of the Huntington Beach Municipal Code, Chapter 3.03, relating to procurement of professional service contracts have been complied with; and CONSULTANT has been selected to perform these services, NOW, THEREFORE, it is agreed by CITY and CONSULTANT as follows: I. SCOPE OF SERVICES CONSULTANT shall provide all services as described in Exhibit "A," which is attached hereto and incorporated into this Agreement by this reference. These services shall sometimes hereinafter be referred to as the "PROJECT." CONSULTANT hereby designates Frank Murphy who shall represent it and be its sole contact and agent in all consultations with CITY duringthe performance of this Agreement. Page 1 of 13 12-3530/89657 (C3 2. CITY STAFF ASSISTANCE CITY shall assign a staff coordinator to work directly with CONSULTANT in the performance of this Agreement. 3. ' TERM; TIME OF PERFORMANCE Time is the essence of this Agreement. The services of CONSULTANT are to commence on "A U , 201 �) (the "Commencement Date"). This Agreement shall automatically inate three (3) years from the Commencement Date, unless extended or sooner terminated as provided herein. All tasks specified in Exhibit "A" shall be completed no later than three years from the Commencement Date. The time for performance of the tasks identified in Exhibit "A" are generally to be shown in Exhibit "A." This schedule may be amended to benefit the PROJECT if mutually agreed to in writing by CITY and CONSULTANT. In the event the Commencement Date precedes the Effective Date, CONSULTANT shall be bound by all terms and conditions as provided herein. 4. COMPENSATION In consideration of the performance of the services described herein, CITY agrees to pay CONSULTANT a fixed fee at the rates specified in Exhibit "B," which is attached hereto and incorporated by reference into this Agreement, a fee, including all costs and expenses, not to exceed Twenty One Thousand Five Hundred Dollars ($21,500.00). 5. EXTRA WORK In the event CITY requires additional services not included in Exhibit "A" or changes in the scope of services described in Exhibit "A," CONSULTANT will undertake Page 2of13 12-3530/89657 such work only a mutually executed amendment to this Agreement. Additional compensation for such extra work shall be allowed only if the prior written approval of CITY is obtained. 6. METHOD OF PAYMENT CONSULTANT shall be paid pursuant to the terms of Exhibit "B." 7. DISPOSITION OF PLANS ESTIMATES AND OTHER DOCUMENTS CONSULTANT agrees that title to all materials prepared hereunder, including, without limitation, all original drawings, designs, reports, both field and office notices, calculations, computer code, language, data or programs, maps, memoranda, letters and other documents, shall belong to CITY, and CONSULTANT shall turn these materials over to CITY upon expiration or termination of this Agreement or upon PROJECT completion, whichever shall occur first. These materials may be used by CITY as it sees fit. To the extent that the Services provided by CONSULTANT are generated by CONSULTANT's proprietary software, nothing contained herein is intended nor shall it be construed to require CONSULTANT to provide such software to CITY. CITY agrees that it has no claims of ownership, including copyright, patents or other intellectual property rights to CONSULTANT's software. Nothing in this Agreement shall be construed to grant CITY any rights to CONSULTANT's materials created prior to the execution of this Agreement. All of the deliverables prepared by CONSULTANT for CITY included in the Services are specifically set out in Exhibit A." 8. HOLD HARMLESS CONSULTANT hereby agrees to protect, defend, indemnify and hold harmless CITY, its officers, elected or appointed officials, employees, agents and volunteers from and against any and all claims, damages, losses, expenses, judgments, demands and Page 3 of 13 12-3530/89657 defense costs (including, without limitation, costs and fees of litigation of every nature or liability of any kind or nature) arising out of or in connection with CONSULTANT's (or CONSULTANT's subcontractors, if any) negligent (or alleged negligent) performance of this Agreement by CONSULTANT, its officers, agents or employees except such loss or damage which was caused by the sole negligence or willful misconduct of CITY. CONSULTANT will conduct all defense at its sole cost and expense and CITY shall approve selection of CONSULTANT's counsel. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as limitation upon the amount of indemnification to be provided by CONSULTANT. A. Limitation of Liability. City agrees that Consultant's total liability to City for any and all damages whatsoever arising out of, or in any way related to, this Agreement from any cause, including but not limited to negligence, errors, omissions, strict liability, breach of contract or breach of warranty shall not, in the aggregate, exceed the lesser of (a) two times 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 City against Consultant relating to this Agreement must be made in writing and presented to Consultant within one (1) year after the date on which Consultant completes performance of the services specified in this Agreement. Page 4of13 12-3530/89657 B. Services and Materials to be Furnished by City. Consultant shall provide guidance to City in determining the data required. 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 Services. City shall provide all such data in a timely manner sufficient to allow Consultant to provide the Services. Consultant shall have no liability to City whatsoever if City provides incomplete or inaccurate data or provides data in an untimely manner. C. Consultant Liability if Audited. The City represents that all financial and statistical information provided to Consultant by City, its employees and/or agents is accurate and complete to the best of City'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 City 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. 9. PROFESSIONAL LIABILITY INSURANCE CONSULTANT shall obtain and furnish to CITY a certificate of insurance as evidence of a professional liability insurance policy covering the work performed by it hereunder. This policy shall provide coverage for CONSULTANT's professional liability in an amount not less than One Million Dollars ($1,000,000.00) per occurrence and in the aggregate. The above -mentioned insurance shall not contain a self -insured retention without the express written consent of CITY; however an insurance policy "deductible" of Ten Page 5 of 13 12-3530/89657 Thousand Dollars ($10,000.00) or less is permitted. A claims -made policy shall be acceptable if the policy further provides that: A. The policy retroactive date coincides with or precedes the initiation of the scope of work (including subsequent policies purchased as renewals or replacements). B. CONSULTANT shall notify CITY of circumstances or incidents that might give rise to future claims. CONSULTANT will make every effort to maintain similar insurance during the required extended period of coverage following PROJECT completion. CONSULTANT agrees to renew the policy for at least two (2) years to report claims arising from work performed in connection with this Agreement. If CONSULTANT fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the CITY with required proof that insurance has been procured and is in force, the CITY shall have the right, at the CITY's election, to forthwith terminate this Agreement. Such termination shall not affect Consultant's right to be paid for its time and materials expended prior to notification of termination. 10. CERTIFICATE OF INSURANCE Prior to commencing performance of the work hereunder, CONSULTANT shall furnish to CITY a certificate of insurance subject to approval of the City Attorney evidencing the foregoing insurance coverage as required by this Agreement; the certificate shall: A. provide the name and policy number of each carrier and policy; Page 6 of 13 12-3530/89657 B. state that the policy is currently in force; and C. shall promise that such policy shall not be suspended, voided or canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice; however, ten (10) days' prior written notice in the event of cancellation for nonpayment of premium. CONSULTANT shall maintain the foregoing insurance coverage in force until the work under this Agreement is fully completed and accepted by CITY. The requirement for carrying the foregoing insurance coverage shall not derogate from CONSULTANT's hold harmless and indemnification obligations as set forth in this Agreement. CITY or its representative shall, in the event of a claim, have the right to demand the original or a copy of the policy of insurance. CONSULTANT shall pay, in a prompt and timely manner, the premiums on the insurance hereinabove required. 11. INDEPENDENT CONTRACTOR CONSULTANT is, and shall be, acting at all times in the performance of this Agreement as an independent contractor herein and not as an employee of CITY. CONSULTANT shall secure at its own cost and expense, and be responsible for any and all payment of all taxes, social security, state disability insurance compensation, unemployment compensation and other payroll deductions for CONSULTANT and its officers, agents and employees and all business licenses, if any, in connection with the PROJECT and/or the services to be performed hereunder. 12. TERMINATION OF AGREEMENT All work required hereunder shall be performed in a good and workmanlike manner. CITY may terminate CONSULTANT's services hereunder at any time with or Page 7 of 13 12-3530/89657 without cause, and whether or not the PROJECT is fully complete. Any termination of this Agreement by CITY shall be made in writing, notice of which shall be delivered to CONSULTANT as provided herein. In the event of termination, all finished and unfinished documents, exhibits, report, and evidence shall, at the option of CITY, become its property and shall be promptly delivered to it by CONSULTANT. 13. ASSIGNMENT AND DELEGATION This Agreement is a personal service contract and the work hereunder shall not be assigned, delegated or subcontracted by CONSULTANT to any other person or entity without the prior express written consent of CITY. If an assignment, delegation or subcontract is approved, all approved assignees, delegates and subconsultants must satisfy the insurance requirements as set forth in Sections 9 and 10 hereinabove. 14. COPYRIGHTS/PATENTS CITY shall own all rights to any patent or copyright on any work, item or material delivered as a result of this Agreement. 15. CITY EMPLOYEES AND OFFICIALS CONSULTANT shall employ no CITY official nor any regular CITY employee in the work performed pursuant to this Agreement. No officer or employee of CITY shall have any financial interest in this Agreement in violation of the applicable provisions of the California Government Code. 16. NOTICES Any notices, certificates, or other communications hereunder shall be given either by personal delivery to CONSULTANT's agent (as designated in Section 1 hereinabove) or to CITY as the situation shall warrant, or by enclosing the same in a sealed Page 8 of 13 12-3530/89657 envelope, postage prepaid, and depositing the same in the United States Postal Service, to the addresses specified below. CITY and CONSULTANT may designate different addresses to which subsequent notices, certificates or other communications will be sent by notifying the other party via personal delivery, a reputable overnight carrier or U. S. certified mail -return receipt requested: TO CITY: City of Huntington Beach ATTN: Finance Director 2000 Main Street Huntington Beach, CA 92648 17. CONSENT TO CONSULTANT: Frank Murphy Maximus Consulting Services, Inc. 17310 Red Hill Avenue, Suite 340 Irvine, CA 92614 When CITY's consent/approval is required under this Agreement, its consent/approval for one transaction or event shall not be deemed to be a consent/approval to any subsequent occurrence of the same or any other transaction or event. 18. MODIFICATION No waiver or modification of any language in this Agreement shall be valid unless in writing and duly executed by both parties. 19. SECTION HEADINGS The titles, captions, section, paragraph and subject headings, and descriptive phrases at the beginning of the various sections in this Agreement are merely descriptive and are included solely for convenience of reference only and are not representative of matters included or excluded from such provisions, and do not interpret, define, limit or describe, or construe the intent of the parties or affect the construction or interpretation of any provision of this Agreement. Page 9 of 13 12-3530/89657 20. INTERPRETATION OF THIS AGREEMENT The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any of the parties. If any provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be unenforceable, void, illegal or invalid, such holding shall not invalidate or affect the remaining covenants and provisions of this Agreement. No covenant or provision shall be deemed dependent upon any other unless so expressly provided here. As used in this Agreement, the masculine or neuter gender and singular or plural number shall be deemed to include the other whenever the context so indicates or requires. Nothing contained herein shall be construed so as to require the commission of any act contrary to law, and wherever there is any conflict between any provision contained herein and any present or future statute, law, ordinance or regulation contrary to which the parties have no right to contract, then the latter shall prevail, and the provision of this Agreement which is hereby affected shall be curtailed and limited only to the extent necessary to bring it within the requirements of the law. 21. DUPLICATE ORIGINAL The original of this Agreement and one or more copies hereto have been prepared and signed in counterparts as duplicate originals, each of which so executed shall, irrespective of the date of its execution and delivery, be deemed an original. Each duplicate original shall be deemed an original instrument as against any party who has signed it. Page 10 of 13 12-3530/89657 22. IMMIGRATION CONSULTANT shall be responsible for full compliance with the immigration and naturalization laws of the United States and shall, in particular, comply with the provisions of the United States Code regarding employment verification. 23. LEGAL SERVICES SUBCONTRACTING PROHIBITED CONSULTANT and CITY agree that CITY is not liable for payment of any subcontractor work involving legal services, and that such legal services are expressly outside the scope of services contemplated hereunder. CONSULTANT understands that pursuant to Huntington Beach City Charter Section 309, the City Attorney is the exclusive legal counsel for CITY; and CITY shall not be liable for payment of any legal services expenses incurred by CONSULTANT. 24. ATTORNEY' S FEES In the event suit is brought by either party to construe, interpret and/or enforce the terms and/or provisions of this Agreement or to secure the performance hereof, each parry shall bear its own attorney's fees, such that the prevailing party shall not be entitled to recover its attorney's fees from the nonprevailing parry. 25. SURVIVAL Terms and conditions of this Agreement, which by their sense and context survive the expiration or termination of this Agreement, shall so survive. 26. GOVERNING LAW This Agreement shall be governed and construed in accordance with the laws of the State of California. Page 11 of 13 12-3530/89657 27. SIGNATORIES Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify CITY fully for any injuries or damages to CITY in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. 28. ENTIRETY The parties acknowledge and agree that they are entering into this Agreement freely and voluntarily following extensive arm's length negotiation, and that each has had the opportunity to consult with legal counsel prior to executing this Agreement. The parties also acknowledge and agree that no representations, inducements, promises, agreements or warranties, oral or otherwise, have been made by that party or anyone acting on that party's behalf, which are not embodied in this Agreement, and that that party has not executed this Agreement in reliance on any representation, inducement, promise, agreement, warranty, fact or circumstance not expressly set forth in this Agreement. This Agreement, and the attached exhibits, contain the entire agreement between the parties respecting the subject matter of this Agreement, and supersede all prior understandings and agreements whether oral or in writing between the parties respecting the subject matter hereof. Page 12 of 13 12-3530/89657 29. EFFECTIVE DATE This Agreement shall be effective on the date of its approval by the City Attorney. This Agreement shall expire when terminated as provided herein. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized officers. CONSULTANT, MAXIMtJS CONSULTING SERVICES, INC AND By: , print name Circle one) Secretary/Chief Financial Offic /Asst - \ / Secret —Treasurer CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California Qwj-etark F 4q ne J�j rr-e— c t' (Pursuant To HBMC §3.03.100) APPROVED ASTOFORM: Citf Attorney kWI-g,15 Date Page 13 of 13 12-3530/89657 EXHIBIT A Terre and Scope of Services This Agreement shall become effective on July 1, 2012, and shall continue in full force and effect until June 30, 2013. The Client may exercise its option to extend this Agreement for however many one year terms the Client desires; whereupon, at each exercise, the parties shall negotiate the terms at arm's length and/or as indicated in Exhibit B. For the purposes of setting forth the scope of services and/or deliverables, the MAXIMUS Consulting Services, Inc. Proposal, dated , is incorporated herein by reference as if fully set forth. The scope of services is based upon the assumption that the Consultant shall prepare all valid and appropriate State Mandated Cost annual claims as well as such new claims for which claiming instructions have been issued by the Controller of the State of California as of June 1, 2012. Should any new State Mandated Cost claiming instructions be issued after June 1, 2012, the Consultant is ready, willing, and able to prepare such claims once the parties mutually agree upon a change in scope to this contract to cover these new claims. 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. The Consultant shall prepare all valid and appropriate SB-90 claims as identified and approved by the Comptroller of the State of California for the current claiming season (July 1 — June 30th of each year this contract is in effect). Cost claims submitted by Consultant may consist of both direct and indirect costs. Consultant may either utilize the ten percent (10%) indirect cost rate allowed by the State Controller or calculate a higher rate if Client's records support such a calculation. Consultant is not required to prepare a central service cost allocation plan or departmental indirect cost rate proposals for Client. EXHIBIT B Compensation For Services provided as set forth in Exhibit A, Client agrees to pay Consultant compensation in the amount of Ten Thousand Five Hundred dollars ($10,500) for the claiming year July 1, 2012 — June 30, 2013. Multi -Year Option Client may elect to secure a two-year or three-year fixed fee contract under the same terms and conditions as stated in this Agreement at a secured rate as follows: Fiscal Year [2012-13] $10,500 (Prepare FY11-12 Claims) Fiscal Year [2013-14] $10,500 (Prepare FY12-13 Claims) Fiscal Year [2014-15] $10,500 (Prepare FY13-14 Claims) Please check and initial here your choice for a two-year contract. - Yes ro-year option (initials) Please check and initial here your choice for a three-year contract: Yes for three-year option (initials) Fees shall be paid in three installments: 40% of the annual fee shall be due and payable on November 30; 40% shall be due and payable on January 31; and the remaining 20% shall be due and payable on May 31. Consultant will render to Client one or more invoices for the fees specified herein, with payment due thirty (30) days after the invoice date. Invoices sixty (60) days after the due dates specified herein will bear interest at the rate of 1 % per month. Waiver of Submission of Claim.(s). Notwithstanding any other provisions of this Agreement, the submission of claims may be waived as set forth below. Upon waiver exercised by either party, Client shall pay Consultant for all work performed up to and until the effective date of waiver in an amount not to exceed the maximum dollar amount indicated above and on the payment schedule as indicated below: Effective date of waiver prior to: Percentage of fee due: November 1 60% March 1 90% June 30 100% A. At Client's Option. At the sole discretion of Client, Client may instruct Consultant to not file a specific claim or claims. Such instruction must be in writing and provided to Consultant at least thirty (30) days prior to the due date of the claim. The effective date of City's waiver shall be the date Consultant receives City's written instruction. B. At Consultant's Option. At the sole discretion of Consultant, Consultant may notify Client of its intention to not pursue a specific claim and the reasons therefor. Such notification must be in writing and provided to Client not less than thirty (30) days prior to the due date of the claim. The effective date of Consultant's waiver shall be the date Consultant mails its notification.