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06-049, Maximus, Inc. 0' - 0'7' '1 AGREEMENT BETWEEN CITY OF CUPERTINO AND MAXIMUS, INC. FOR PROFESSIONAL CONSULTING SERVICES This Agreement made this ILf"*'daY of Tv (~ ' 2006, by and between the City of Cupertino hereinafter referred to as City, and MAXIMUS, Inc., a Virginia corporation authorized to do business in California, hereinafter referred to as Consultant. WITNESSETH: WHEREAS, City desires to change its method for assessing building and certain planning fees and, WHEREAS, City requires certain professional services to accomplish this; and WHEREAS, Consultant is qualified and prepared to provide such services; NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties agree as follows. 1. SCOPE OF SERVICES. Consultant shall do, perform, and carry out in a good and professional manner the following services: A. Development of a NEXUS service/user fee study for the Building and Safety Division as defined in the March 12, 2006 proposal, attached as Exhibit A. B. Advise City on implementation strategy. C. Options: (1) Presentation of the study's results to the City Council, (2) Review Planning and Engineering fees. See attached proposal for details. 2. TERM. Consultant shall deliver the final report to the City within ten weeks of contract execution. Consultant's services under this Agreement will be considered complete when the 1 services are rendered and/or final deliverable is submitted and accepted by City. 3. DELIVERABLES. A. The Consultant shall provide all final user fee analysis schedules showing current fees, full cost of services by fee area, and recommended fees. B. The Consultant shall provide a final report to the City documenting Consultant's findings and conclusions. C. The Consultant shall provide City with New Construction, Mechanical/Electrical/Plumbing, and Miscellaneous fee schedules in Excel format. D. The Consultant shall provide City with the entire model in PDF format. This document will contain all relevant and appropriate work paper documentation. 4. COMPENSATION: City agrees to pay Consultant a fixed fee of $15,000 plus a maximum in expenses of $1,500 in order to cover Consultant costs such as travel and subsistence, printing and reproduction, computer time and programming costs, identifiable supplies and telecommunication costs. 5. OPTIONAL SERVICES. The City may elect to have MAXIMUS perform additional services. Requested presentation(s) to the City Council or any community or special interest group will be charged for at a fixed rate of $1,200 per presentation plus expenses. The City may also elect to have Consultant modify previous analyses for the Planning and Engineering divisions, per specifications contained on page 18 of Consultant's proposal. Invoices shall provide detail sufficient to the City's requirements. The City shall pay the invoice within thirty (30) days of City's receipt of the invoice. MAXIMUS' current billing rates are as follows: Consultant Level Hourly Rate Senior Consultant $ 115 Associate $ 100 Consultant $ 75 Support Staff Consultant Hourly Level Rate Vice President $ 225 Director $ 175 Senior Manager $ 150 Manager $ 140 2 6. METHOD OF PAYMENT. Payment of the standard fee will be made by the City to the Consultant as follows: Delivery of draft user fee results Delivery of final user fee report: 65% 35% 7. CHANGES. The fixed fee will not be changed except in the case of a written amendment to the Agreement, which alters the Scope of Services. City and Consultant agree to negotiate an increase or decrease in fixed fee for any change in Scope of Services required at any time during the term of this Agreement. Consultant will not commence work on the altered Scope of Services until authorized by City. 8. TERMINATION: Either party may terminate this Agreement upon giving thirty (30) days written notice to the other. In the event of termination, Consultant shall be entitled to be paid for professional services and expenses incurred up through the effective date of termination on a pro rata basis. 9. PERSONNEL: Consultant represents that it has, or will secure at its own expense, all persOlmel necessary to perform the services required under this Agreement. All of the services required hereunder shall be performed by Consultant or under its supervision, and all personnel engaged in performing the services shall be qualified to do so. 10. STANDARD OF CARE: Consultant shall exercise the same degree of care, skill, and diligence in the performance of the Services as is ordinarily provided by a professional Consultant under similar circumstance and Consultant shall, at no cost to City, re-perform services which fail to satisfy the foregoing standard of care. 11. INDEPENDENT CONTRACTOR: Consultant undertakes performance of the services hereunder as an independent contractor and shall be wholly responsible for the methods of performance. City will have no right to supervise the methods used, but City will have right to observe such performance. Consultant shall work closely with City in performing services under this Agreement. 3 12. SUBCONTRACTING / ASSIGNMENT: Consultant may subcontract for services hereunder with the consent of the client, and whose consent shall not be reasonably withheld. Consultant agrees to notify the Client in writing of any such subcontracts and the services to be performed in accordance with the subcontracting arrangement. The Client agrees to consent or withhold consent within a reasonable time of said notice. 13. INSURANCE: Consultant shall provide and maintain at all times during the performance of this Agreement the following insurances: A. Workers' Compensation and Employer's Liability Insurance for protection of Consultant's employees as required by law and as will protect Consultant from loss or damage because of personal injuries, including death, to any of his employees. B. Commercial Automobile Liability Insurance. Consultant agrees to carry a Commercial Automobile Liability Policy providing bodily injury liability. This policy shall protect Consultant against liability arising out of the use of owned or leased automobiles. Automobiles (owned, not owned, or hired, licensed for road use) shall be covered under this policy. Limits of liability for Commercial Automobile Liability Insurance shall not be less than $1,000,000 for Combined Single Limit. C. Commercial General Liability. Such insurance will protect Consultant and City as additional insureds from claims for damages or personal injuries, including death, which may be suffered by persons, or for damages to or destruction to the property of others, which may arise from the Consultant's operations under this Agreement, which insurance shall name the City as additional insured. Said insurance shall provide a minimum of $1,000,000 Combined Single Limit coverage for personal injury, bodily injury, and property damage for each occurrence and $2,000,000 aggregate. Such insurance will insure claims arising from the following: 1. Personal injury; 2. Bodily injury; 3. Property damage; 4 4. Broad form property damage; 5. Independent contractors; 6. Blanket contractual liability; D. Professional Liability Consultant shall maintain a professional liability policy (errors and omissions) in the amount of $1,000,000 per claim or occurrence. E. Consultant agrees to maintain such insurance at Consultant's expense in full force and effect in a company or companies satisfactory to the City. All coverage shall remain in effect until completion of the services. F. Consultant will furnish the City with certificates of insurance issued by Consultant's insurance carrier and countersigned by an authorized agent or representative of the insurance company. The certificates shall show that the insurance will not be cancelled, materially changed, or reduced without at least thirty (30) days prior written notice to the City. 14. LIABILITY AND INDEMNIFICATION A. Having considered the risks and potential liabilities that may exist during the performance of these services; and in consideration of the promises included herein, City and Consultant agree to allocate such liabilities in accordance with this Paragraph. Words and phrases used in this Paragraph shall be interpreted in accordance with customary insurance industry usage and practice. B. Consultant shall indemnify and save harmless and defend the City and all of their agents, officers, and employees from and against all claims, demand, or cause of action arising out of negligent error, omission, or act of Consultant, its agents, servants, or employees in the performance of its services under this Agreement. C. In the event an action for damages is filed in which negligence is alleged on the part of City and Consultant, Consultant agrees to defend City. In the event City accepts Consultant's defense, City agrees to indemnify and reimburse Consultant on a pro rata basis for all expenses of defense and any judgment or amount paid by Consultant in 5 resolution of such claim. Such pro rata share shall be based upon a final judicial determination of negligence or, in the absence of such determination, by mutual agreement. D. Consultant shall indemnify City against legal liability for damages arising out of claims by Consultant's employees. City shall indemnify Consultant against legal liability for damages arising out of claims by City's employees. E. Upon completion of all services, obligations and duties provided for in the Agreement, or in the event of termination of this Agreement for any reason, the terms and conditions of this Paragraph shall survive. F. To the maximum extent permitted by law, Consultant's liability for the City's damage will not exceed the aggregate compensation received by Consultant under this Agreement or the maximum amount of professional liability insurance required by this Agreement, which ever is greater. 15. ASSIGNMENT: Except as provided in Paragraph 12 above, the Consultant agrees not to assign, conveyor transfer its interest in this Agreement without the prior written consent of the City which consent shall not be unreasonably withheld. 16. TIME OF PERFORMANCE: A. Consultant shall perform the services required hereunder in a timely, professional manner. Neither City nor Consultant shall be considered to be in default of this Agreement if delays in or failure of performance shall be due to uncontrollable forces, the effect of which, by the exercise of reasonable diligence, the nonperforming party could not avoid. The term "uncontrollable forces" shall mean any event that results in the prevention or delay of performance by a party of its obligations under this Agreement and which is beyond the control of the nonperforming party. It includes, but is not limited to, fire, flood, earthquake, storms, lightening, epidemic, war, riot, civil disturbance, sabotage, inability to procure permits, licenses, or authorizations 6 from any state, local, or federal agency or person for any of the supplies, materials, accesses, or services required to be provided by either City or Consultant under this Agreement, strikes, work slowdowns or other labor disturbances, and judicial restraint. B. Neither party shall, however, be excused from performance if nonperformance is due to uncontrollable forces which are removable or remediable, and which the nonperforming party could have, with the exercise of reasonable diligence, removed or remedied with reasonable dispatch. The provisions of this Paragraph shall not be interpreted or construed to require Consultant or City to prevent, settle, or otherwise avoid a strike, work slowdown, or other labor action. The nonperforming party shall, within a reasonable time of being prevented or delayed from performance by an uncontrollable force, give written notice to the other party describing the circumstances and uncontrollable forces preventing continued performance of the obligations of this Agreement. The Consultant will be allowed reasonable negotiated extension of time or adjustments for City initiated temporary stoppage of services. 17. OWNERSHIP OF DOCUMENTS: A. Consultant shall deliver to the City all deliverables required to be submitted consistent with the Scope of Services hereunder. All work products, drawings, data, reports, files, estimates and other such information and materials, except those stated in paragraph 18, as may be accumulated by Consultant to complete services under this Agreement, shall be owned by the City. B. Consultant shall maintain its working papers for a period of three (3) years from the date of completion of this Agreement. Through that period, Consultant shall make available upon request by the City, information or working papers in addition to those specified as a deliverable. City may make and retain copies for information and reference. 7 18. COPYRIGHT FOR COST ALWCATION SOFTWARE: The City acknowledges that the user fee model provided by the Consultant to the City is generated by Consultant's proprietary software. Nothing contained herein is intended nor shall it be construed to require the Consultant to provide such software, or component data files to the City. The City agrees that all ownership rights thereto lie with the Consultant, subject to the requirements of the California Public Records Act. The City may use the information for and on behalf of its operation. 19. SERVICES AND MATERIALS TO BE FURNISHED BY THE CITY: The Consultant shall provide guidance toO the City in determining the data required for performance of services hereunder. The City agrees to provide all data specifically requested, including documentation and information to the Consultant in a timely manner. The Consultant shall assume without incurring liability therefore, all data so provided is correct and complete. 20. CONSULTANT LIABILITY IF AUDITED: The Consultant will assume all financial and statistical information provided to the Consultant by City's employees or representatives is accurate and complete. 21. CONSULTANT ASSISTANCE IF AUDITED: If audited, the Consultant shall make work papers and other records available to the City-approved auditors or data-requestors. If requested by the City, the Consultant shall provide assistance to the City in defending study results. Any consultant efforts required as a result of a legal proceeding shall be charged for at Consultant's current billing schedule. 22. NONDISCLOSURE OF PROPRIETARY INFORMATION: Consultant shall consider all information provided by City and all charts, reports, studies, calculations, and other documents resulting from the Consultant's performance of the Services to be proprietary unless such information is available from public sources. Consultant shall not publish or disclose proprietary information for any purpose other than the performance of the services without the prior written authorization of City or in response to legal process. 8 23. COMPLIANCE WIlli LAWS: In performance of the hereunder services, Consultant will comply with applicable regulatory requirements including federal, state, and local laws, rules, regulations, orders, codes, criteria and standards. Consultant shall procure the licenses, permits and certificates necessary to perform such services. 24. SEVERABILITY: The invalidity, illegality, or unenforceability of any provision of this Agreement, or the occurrence of any event rendering any portion or provision of this Agreement void, shall in no way effect the validity or enforceability of any other portion or provision of the Agreement. Any void provision shall be deemed severed from the Agreement and the balance of the Agreement shall be construed and enforced as if the Agreement did not contain the particular portion or provision held to be void. 25. WAIVER OF BREACH: A waiver by either City or Consultant of any breach of this Agreement shall not be binding upon the waiving party unless such waiver is in writing. In the event of a written waiver, such a waiver shall not affect the waiving party's rights with respect to any other or further breach. 26. AMENDMENTS: No amendment or variation of the terms and conditions of this Agreement shall be valid unless the same is in writing and signed by all of the parties hereto. 27. SUCCESSORS AND ASSIGNS: A. City and Consultant each binds itself and its directors, officers, partners, successors, executors, administrators, assigns and legal representatives to the other party to this Agreement and to the partners, successors, executors, administrators, assigns, and legal representatives of such other party, in respect to all covenants, agreements, and obligations of this Agreement. B. Neither City nor Consultant shall assign, sublet, or transfer any rights under or interest in (including, but without limitation, monies that may become due or monies that are due) this Agreement without the written consent of the other, except to the extent that the effect of this limitation may be restricted by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will 9 release or discharge the assignor from any duty or responsibility under this Agreement. Nothing contained in this Paragraph shall prevent Consultant from employing such independent consultants, associates, and subcontractors as he may deem appropriate to assist him/her in the performance of the services hereunder and in accordance with Paragraph 12. C. Nothing herein shall be construed to give any rights or benefits to anyone other than City and Consultant. 28. INTERPRETATION: The validity, interpretation and effect of this Agreement shall be determined under the California law. All actions arising directly or indirectly as a result or in consequence of this Agreement shall be instituted and litigated only in the Superior Court of Santa Clara County, State of California. Any provision found to be invalid or unenforceable shall have no effect upon the validity of any other section of this contract. 29. ENTIRE AGREEMENT: This is the entire agreement of the parties and it supersedes all prior written and oral communications between them with respect to the subject matter hereof. Any change, alteration or modification of this agreement must be in writing and signed by the parties and cannot be changed or modified orally. 30. NOTICES: All written notices, demands or requests of any kind which either party may be required or may desire to serve on the other in connection with this Agreement may be served (as an alternative to personal service) by registered or certified mail or air freight services that provide proof of delivery. Any such notice or demand so served by registered or certified mail shall be deposited in the United States mail with postage and fees thereon fully prepaid, and addressed to the parties so to be served as follows: If to Consultant: MAXIMUS 17310 Red Hill Avenue, Ste. 340 Irvine, CA 92614 If to City: Department of Finance City of Cupertino 10300 Torre Ave. Cupertino, CA 95014 10 Service of any such notice or demand so made by mail shall be deemed complete on the day of actual delivery as shown by the addressee's registry or certification receipt. Either party hereto may from time to time, by notice in writing served upon the other as aforesaid, designate a different mailing address, or (a) different or additional person(s) to which or to whom all such notices or demands are thereafter to be addressed. Persons named to receive copies of notices are listed for accommodation only and are not required to be served to comply with service of notice on a party (are required to be served to comply with service of notice) . 31. SIGNATURE AUTHORITY: Each individual signing this Agreement certifies that (i) he or she is authorized to sign this Agreement on behalf of his or her respective organization, (ii) such organization has obtained all necessary approvals to enter into this Agreement, including but not limited to the approval of its governing board, and (iii) when executed, this Agreement is a valid and enforceable obligation of such organization. CONSULTANT: CITY MAXIMU City of Cupertino (1~{i~ By: Date: 7 - I t.f-Db By: Date: By: Charles T, Kilian, Legal Counsel Date: 11