Item 10ACity of Southlake, Texas
MEMORANDUM
April 13, 2005
TO: Shana Yelverton, City Manager
FROM: Chuck Kiefer, Interim Deputy City Manager
SUBJECT: Department of Public Works Operations Division Management Study.
Action Requested: Authorize the City Manager to enter into a professional services agreement
with MAXIMUS to conduct a management study of the Department of Public
Works Operations Division.
Background
Information: One of the initiatives of the City Manager's transition plan is to conduct
management studies of the larger operating departments to identify
opportunities for improved resource utilization. The scope of the study is
intended to be comprehensive and the areas of review will include:
• Workload and staffing
• Organization structure
• Management systems
• Recruitment and training
• Policies and procedures
• Use of technology
• Fleet and equipment utilization
• Comparison of DPW operations to industry best practices
• Employee attitudes and morale
MAXIMUS has experience conducting management reviews and feasibility
studies of Public Works, Utility and Engineering Departments. In addition,
MAXIMUS has a long history of service to local governments in Texas.
Financial
Considerations: The total cost for the management study is $44,000.00. This cost includes all
professional fees and travel costs.
Financial
Impact: The Director of Finance has identified sufficient savings from position
vacancies to cover the cost of the study. In addition, prior experience has
shown that the cost of such studies is recouped as a result of implementing
recommendations which reduce or avoid increases in operating costs.
Citizen Input/
Board Review: N /A.
Shana Yelverton
April 13, 2005
2
Legal Review:
Alternatives:
Supporting
Documents:
The attached agreement is currently being reviewed by Debra Drayovitch with
TOASE.
Alternatives that exist are; (1) Seek another consulting firm, or (2) conduct the
study in house.
Letter of Agreement between MAXIMUS and the City of Southlake.
Staff
Recommendation: Authorize the City Manager to enter into a professional services agreement
with MAXIMUS to conduct a management study of the Department of Public
Works Operations Division.
CK
Shana Yelverton
April 13, 2005
SERVICES AGREEMENT
This Services Agreement ( "Agreement ") is effective as of the day of , 20_ ( "Effective
Date "), by and between (hereinafter referred to as "Client ") and MAXIMUS, Inc.
(hereinafter referred to as "MAXIMUS ") with reference to the following:
WHEREAS, Client requires ; 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:
SCOPE OF SERVICES
Client hereby engages MAXIMUS to perform the services as described in Exhibit A, Scope of
Services. During the term of this Agreement Client 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
Client agrees that compensation and method of payment to MAXIMUS shall be according to
Exhibit B, Cost and Fee Schedule.
MAXIMUS shall submit monthly invoices to the Client in sufficient detail to support the services
provided during the previous month. Client agrees to pay those invoices within thirty (30) days of
receipt. In the event the Client disputes a portion of an invoice, the Client agrees to pay the
undisputed portion of the invoice within thirty (30) days of receipt and to provide MAXIMUS a
detailed statement of the Client's position on the disputed portion of the invoice within thirty (30)
days of receipt. Client'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
This Agreement shall commence as of the Effective Date and shall terminate on
4. RESPONSIBILITIES
A. The parties understand and agree that the Client 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 Client shall provide these resources in a timely
manner and represents that the personnel resources are appropriately qualified and capable of
performing the assigned tasks.
Shana Yelverton
April 13, 2005
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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, client data and other service records for five
(5) years from the date services are completed.
5. RIGHTS IN DATA
Client 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 Client, 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 Client 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 Client under this Agreement.
7. TERMINATION FOR CONVENIENCE
This Agreement may be terminated by the Client if all or part of applicable funding becomes
unavailable to Client. If applicable funding is reduced, Client may either cancel this Agreement or
offer a contract amendment reflecting the reduced funding. If this Agreement is cancelled, Client
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
Shana Yelverton
April 13, 2005
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 notice
specifying such default. In the event of such a termination, Client shall reimburse MAXIMUS for all
work that had been satisfactorily 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, regardless of the legal theory under which such damages are sought, and even
if MAXIMUS has been advised of the likelihood of such damages. Client agrees that MAXIMUS
total liability to Client or any third party 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 contract liability or
MAXIMUS negligence, errors, omissions, strict liability, breach of contract or breach of warranty
shall not, in the aggregate, exceed the fees paid to MAXIMUS hereunder.
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 Consultant's Computer
Errors and Omissions Coverage, with limits not less than $1,000,000 per claim and in the
aggregate.
11. INDEMNIFICATION
Each party ( "Indemnitor ") agrees to indemnify and hold the other party ( "Indemnitee ") harmless
from any claims, lawsuits, proceedings, losses, liabilities, damages, costs and expenses (including
reasonable attorneys' fees) made against or incurred by Indemnitee as a result of negligence,
misrepresentation, error or omission on the part of Indemnitor or Indemnitor's employees, agents
or representatives.
Shana Yelverton
April 13, 2005
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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 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 Client 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.
Client understands and agrees that it may have access to confidential or proprietary information,
processes or documentation owned or controlled by MAXIMUS. Client understands and agrees
that disclosure or use of such information, processes or documentation may violate MAXIMUS'
trademarks, copyrights or other proprietary rights. Client agrees to exercise reasonable standards
of care to protect such information, processes or documentation.
15. INSPECTION
Authorized representatives of Client 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.
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:
CLIENT MAXIMUS
Shana Yelverton
April 13, 2005
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. DISPUTES
Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, that cannot be resolved
through negotiation between the parties, shall be settled by arbitration administered by the American Arbitration
Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof. Any such arbitration proceedings shall be held in
In the event arbitration is initiated to enforce or interpret any part of the Agreement, the prevailing party shall be
entitled to recover its reasonable attorneys' fees to be fixed by the arbitrator(s).
19. GOVERNING LAW
The Agreement shall be governed and construed in accordance with the laws of the Commonwealth of Virginia without
regard to choice of law principles.
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 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.
Shana Yelverton
April 13, 2005
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 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.
IN WITNESS WHEREOF, the parties have executed this Agreement through their duly authorized representatives.
MAXIMUS
By
Client
NJ
Title Title
Shana Yelverton
April 13, 2005
EXHIBIT A
SCOPE OF SERVICES
Shana Yelverton
April 13, 2005
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EXHIBIT B
COST AND FEE SCHEDULE
[SAMPLE]
PAYMENTS TO CONTRACTOR
This is a time and materials contract. In consideration for the services provided, Client agrees to pay MAXIMUS
monthly based on the actual hours worked and actual expenses incurred. MAXIMUS shall submit monthly invoices in
sufficient detail to support the services provided during the previous month. Services will be billed at the rates
specified in the table below.
Position
Hours
Rate
Cost
Project Management
Senior Functional Consultant
Senior Technical Consultant
Functional Consultant
Technical Consultant
Total
MAXIMUS will be reimbursed by the Client for all reasonable travel and living expenses incurred by staff while
performing services under this agreement. MAXIMUS agrees to maintain detailed supporting documentation for actual
expenses incurred.