HomeMy WebLinkAbout09 - State Mandate Reimbursement Claims�J•L�� \` +
NEWPORT Ate' �j BEACH
Cit Council Staff Report g d- Item
• 1
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Finance Department
Tracy McCraner, Director
949 - 644 -3123, tmccraner @newportbeachca.gov
PREPARED BY: Evelyn Tseng, Revenue Manager
APPROVED: r �ZC-ll t\\
o�
TITLE: Agreement with Maximus Consulting Services, Inc. to File State
Mandate Reimbursement Claims
ABSTRACT:
The City may be entitled to reimbursements from the State of California, for costs
associated with unfunded state - mandated costs during the periods of July 1, 2009
through June 30, 2010, and for July 1, 2010 through June 30, 2011. The Finance
Department would like to ensure that these claims are filed appropriately and timely. -
Maximus Consulting Services, Inc. ( "Maximus') is able to file the reimbursement claims
on behalf of the City, and has agreed to compensation based on actual reimbursement
from the State. The City should net approximately $253,000 if the State pays both
claims. Finance would also have Maximus file the Mandatory Reimbursement Process
claims for 2012 and net the City $206,000.
RECOMMENDATION:
Staff recommends
1) City Council authorize the Mayor and City Clerk to execute a Professional
Services Agreement with Maximus in substantially the same form as attached
(Exhibit "A ") authorizing Maximus to file the State Mandate reimbursement claims
for July 1, 2009 through June 30, 2010, and for July 1, 2010 through June 30,
2011, and to also file a claim for 2012 related to the City's Mandatory
Reimbursement Process claim;
2) That Council waive Council Policy F -14 and authorize the City to engage
Maximus for these services on a Single Source basis without obtaining
competitive proposals.
Agreement with Maximus Consulting Services, Inc. to File State Mandate Reimbursement
Claims
February 14, 2012
Page 2
FUNDING REQUIREMENTS:
There is no expenditure of funds required with this action.
DISCUSSION:
Each year, the State reimburses local agencies for the costs of mandated State
programs. A local agency receives reimbursement if:
1. The Commission on State Mandates determines, through a review process of "test
claims" submitted by local governments, that a mandate exists; and
2. The local government submits claims for reimbursement each fiscal year.
Since 1998, Maximus has prepared test claims on the City's behalf and pursued
resolution of these claims with the State Commission on State Mandates. Maximus
prepared and submitted documents for the following test claims: Administrative License
Suspension, Domestic Violence Arrest Policies and Standards, Domestic Violence
Arrests and Victim Assistance, Health Benefits for Survivors of Peace Officers and
Firefighters, Open Meetings Act, Peace Officers Procedural Bill of Rights, Rape Victim
Counseling Center Notices, Crime Statistic Reporting for the DOJ and Identity Theft.
The total amount charged by Maximus for this work is $316,955 (invoice detail attached
as Exhibit "B "). Pursuant to its 1998 agreement (attached as Exhibit "C "), Maximus'
compensation was conditioned upon a determination of a reimbursable mandate for any
portion of the costs that parties mutually agreed to pursue. To date, Maximus has not
been compensated; however, the Commission on State Mandates has issued
Statements of Decision, approving reimbursement for each of the test claims listed
above.
Maximus is willing to prepare and file claims for reimbursement for these mandates for
2009 — 2010, and for 2010 -2011. Provided the City receives funds from these claims,
the City will pay Maximus for 75% of the test claim preparation work between 1998 and
2010, or $237,716. Maximus estimates that the City will receive approximately
$491,000 from these claims, netting the City $253,000.
In addition, Maximus will also file the Mandatory Reimbursement Process claims for
2012. If the State pays for these claims, the City may receive approximately $285,000.
If the City receives these funds, City will pay Maximus the remaining 25% of its invoice,
or $79,000 from these funds, so the City will net $206,000.
In accordance with the Administrative Procedures related to Council Policy F -14,
Authority to Contract for Services, single source contract award without obtaining
competitive proposals is permitted when the procurement process is either impossible
or impractical. Due to the short timeframe before claim submittals are due and
Maximus' extensive work history and familiarity with the City's reimbursement claim
Agreement with Maximus Consulting Services, Inc. to File State Mandate Reimbursement
Claims
February 14, 2012
Page 3
process, staff requests that Council authorize a single source contract award with
Maximus.
The chart below summarizes the potential revenue to the City and contingent payment
to Maximus.
Mandate Full Name
FY 2009 -10
Estimated
Claim
Amount
FY 2010 -11
Estimated
Claim
Amount
Potential
Reimburmment
from Slate
Payment to
Maximus
Contingent on
lecoipt of Funds
MW I Test
Claims
Payment to
Maximus
Contingent
on receipt of
Funds
Potential
Revenue to
Clry.
Adminhmndse IJeeme Smp tai.
511,700
$13,500
$25,20D
$25.200
Domestic Vldence Arrest Poildee xnd Smndxr
$7.200
$8,250
$15,450
$15,450
Domenic Violence Arrests and victim Assistance
$2,700
53.000
$5,700
$5,70D
Deal Us Beee 6u for S unimrs of Peace Officers N Rcenghre
$22,500
$25,500
$48,DD0
$48,WD
O1xn Meeetoes Me
840,500
$45,000
$BS,500
$85,500
Peeve Omven PSOeedurvl 0111 of Rights
$4,500
$S,WD
$9,500
$9,500
Nate Victim Counseling Center NPlitef
$900
51,000
$1,900
$1,900
Crime Smtistie Winning for the DOJ
$225,000
$25,000
$250.000
(5237,716)
$12,284
Memity lisp
545,05D
$5,000
$50.000
$50,000
hiRP I'I'en Corms
50
$285,260
($79,239)
$206,021
'Ibvf•
8360,000
$131,250
$491.2W
($237,716).
$285,260
($79,239)
$459,555
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will
not result in a direct or reasonably foreseeable indirect physical change in the
environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378)
of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it
has no potential for resulting in physical change to the environment, directly or
indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
Submitted by:
Tracy Mc r ner
Finance D ctor/Treasurer
Attachments: A. Professional Services Agreement with Maximus
B. Maximus invoice detail
C. Professional Services Agreement, dated November 30, 1998
PROFESSIONAL SERVICES AGREEMENT WITH
MAXIMUS CONSULTING SERVICES, INC.
FOR MANDATED SERVICES TEST CLAIMS
THIS AGREEMENT FOR PROFESSIONAL SERVICES ( "Agreement') is made
and entered into as of this _ day of February, 2012 by and between the CITY OF
NEWPORT BEACH, a California Municipal Corporation and charter city ( "City "), and,
MAXIMUS CONSULTING SERVICES, INC. a Virginia corporation ( "Consultant'), whose
address is 17310 Red Hill Ave., Irvine, CA 92614 and is made with reference to the
following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City desires to file state Mandate reimbursement claims for July 1, 2009 through
June 30, 2010, and for July 1, 2010 through June 30, 2011, as well as file the
Mandatory Reimbursement Process claims for 2012 ('Project').
C. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the services described in this Agreement.
D. The principal member of Consultant for purposes of Project shall be Steven E.
Whitney.
E. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1. TERM
The term of this Agreement shall commence on the above written date, and shall
terminate on July 1, 2013 unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
City and Consultant acknowledge that the above Recitals are true and correct and are
hereby incorporated by reference. Consultant shall diligently perform all the services
described in the Scope of Services attached hereto as Exhibit A and incorporated
herein by reference ( "Work" or "Services'). The City may elect to delete certain tasks of
the Scope of Services at its sole discretion.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this
Agreement and the Services shall be performed to completion in a diligent and timely
manner. The failure by Consultant to perform the Services in a diligent and timely
manner may result in termination of this Agreement by City.
3.1.1 Notwithstanding the foregoing, Consultant shall not be responsible
for delays due to causes beyond Consultant's reasonable control. However, in the case
of any such delay in the Services to be provided for the Project, each party hereby
agrees to provide notice to the other parry so that all delays can be addressed.
3.2 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator (as defined in Section 6 below) not later than ten
(10) calendar days after the start of the condition that purportedly causes a delay. The
Project Administrator shall review all such requests and may grant reasonable time
extensions for unforeseeable delays that are beyond Consultant's control.
3.3 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the circumstances, by
either telephone, fax, hand - delivery or mail.
4. COMPENSATION TO CONSULTANT
4.1 City shall pay Consultant on a contingency basis based upon the schedule
included in the Scope of Services, attached hereto as Exhibit A and incorporated herein
by reference. Consultant's compensation for all Work performed in accordance with this
Agreement, including all reimbursable items and subconsultant fees, shall not exceed
Three Hundred sixteen thousand nine hundred fifty five Dollars and no /100
($316,955.00) without prior written authorization from City. No billing rate changes shall
be made during the term of this Agreement without the prior written approval of City.
4.2 Consultant shall submit monthly invoices to City describing the Work
performed the preceding month. Consultant's bills shall include the name of the person
who performed the Work, a brief description of the Services performed and /or the
specific task in the Scope of Services to which it relates, the date the Services were
performed, the number of hours spent on all Work billed on an hourly basis, and a
description of any reimbursable expenditures. City shall pay Consultant no later than
thirty (30) days after approval of the monthly invoice by City staff.
4.3 City shall reimburse Consultant only for those costs or expenses
specifically approved in this Agreement, or specifically approved in writing in advance
by City. Unless otherwise approved, such costs shall be limited and include nothing
more than the following costs incurred by Consultant:
4.3.1 The actual costs of subconsultants for performance of any of the
Services that Consultant agrees to render pursuant to this Agreement, which have been
approved in advance by City and awarded in accordance with this Agreement.
4.3.2 Approved reproduction charges.
MAXIMUS CONSULTING SERVICES, INC. Page 2
4.3.3 Actual costs and /or other costs and /or payments specifically
authorized in advance in writing and incurred by Consultant in the performance of this
Agreement.
4.4 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work that is determined by City to be necessary for the proper completion of the
Project, but which is not included within the Scope of Services and which the parties did
not reasonably anticipate would be necessary at the execution of this Agreement.
Compensation for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing as set forth in Exhibit A.
5. PROJECT MANAGER
5.1 Consultant shall designate a Project Manager, who shall coordinate all
phases of the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Consultant has designated Click here to enter text.to
be its Project Manager. Consultant shall not remove or reassign the Project Manager or
any personnel listed in Exhibit A or assign any new or replacement personnel to the
Project without the prior written consent of City. City's approval shall not be
unreasonably withheld with respect to the removal or assignment of non -key personnel.
5.2 Consultant, at the sole discretion of City, shall remove from the Project
any of its personnel assigned to the performance of Services upon written request of
City. Consultant warrants that it will continuously furnish the necessary personnel to
complete the Project on a timely basis as contemplated by this Agreement.
6. ADMINISTRATION
This Agreement will be administered by the Finance Department. Tracy McCraner or
her designee, shall be the Project Administrator and shall have the authority to act for
City under this Agreement. The Project Administrator or her designee shall represent
City in all matters pertaining to the Services to be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
7.1 In order to assist Consultant in the execution of its responsibilities under
this Agreement, City agrees to, where applicable:
7.1.1 Provide access to, and upon request of Consultant, one copy of all
existing relevant information on file at City. City will provide all such materials in a
timely manner so as not to cause delays in Consultant's Work schedule.
7.1.2 Provide blueprinting and other Services through City's reproduction
company for bid documents. Consultant will be required to coordinate the required bid
documents with City's reproduction company. All other reproduction will be the
responsibility of Consultant and as defined above.
7.1.3 Provide usable life of facilities criteria and information with regards
to new facilities or facilities to be rehabilitated.
MAXIMUS CONSULTING SERVICES, INC. Page 3
8. STANDARD OF CARE
8.1 All of the Services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the Services required by this Agreement, and that it will
perform all Services in a manner commensurate with community professional
standards. All Services shall be performed by qualified and experienced personnel who
are not employed by City, nor have any contractual relationship with City. By delivery of
completed Work, Consultant certifies that the Work conforms to the requirements of this
Agreement and all applicable federal, state and local laws and the professional standard
of care.
8.2 Consultant represents and warrants to City that it has, shall obtain, and
shall keep in full force in effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Consultant to practice its profession. Consultant shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, or acts of God, or the failure of City to furnish timely information or
to approve or disapprove Consultant's Work promptly, or delay or faulty performance by
City, contractors, or governmental agencies.
9. HOLD HARMLESS
9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers, and employees (collectively, the "Indemnified Parties') from and against any
and all claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorney's fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims "), which may arise from or in any manner
relate (directly or indirectly) to any breach of the terms and conditions of this
Agreement, any Work performed or Services provided under this Agreement including,
without limitation, defects in workmanship or materials or Consultant's presence or
activities conducted on the Project (including the negligent and /or willful acts, errors
and /or omissions of Consultant, its principals, officers, agents, employees, vendors,
suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any
of them or for whose acts they may be liable or any or all of them).
9.2 Notwithstanding the foregoing, nothing herein shall be construed to
require Consultant to indemnify the Indemnified Parties from any Claim arising from the
sole negligence or willful misconduct of the Indemnified Parties. Nothing in this
indemnity shall be construed as authorizing any award of attorney's fees in any action
on or to enforce the terms of this Agreement. This indemnity shall apply to all claims
and liability regardless of whether any insurance policies are applicable. The policy
MAXIMUS CONSULTING SERVICES, INC. Page 4
limits do not act as a limitation upon the amount of indemnification to be provided by the
Consultant.
9.3 The City agrees that Contractor's total liability to the 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 contract liability or Contractor's negligence, errors,
omissions, strict liability, breach of contract or breach of warranty shall not, in the
aggregate, exceed $150,000.
In no event shall Contractor 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 Contractor has been advised of the likelihood of such
damages, and notwithstanding any failure of essential purpose of any limited remedy.
Any claim by the City against Contractor relating to this Agreement must be made in
writing and presented to Contractor within one (1) year after the date on which
Contractor completes performance of the services specified in this Agreement.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis and
Consultant is not an agent or employee of City. The manner and means of conducting
the Work are under the control of Consultant, except to the extent they are limited by
statute, rule or regulation and the expressed terms of this Agreement. Nothing in this
Agreement shall be deemed to constitute approval for Consultant or any of Consultant's
employees or agents, to be the agents or employees of City. Consultant shall have the
responsibility for and control over the means of performing the Work, provided that
Consultant is in compliance with the terms of this Agreement. Anything in this
Agreement that may appear to give City the right to direct Consultant as to the details of
the performance or to exercise a measure of control over Consultant shall mean only
that Consultant shall follow the desires of City with respect to the results of the Services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated Project
Administrator and any other agencies that may have jurisdiction or interest in the Work
to be performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project direction
with City's Project Administrator in advance of all critical decision points in order to
ensure the Project proceeds in a manner consistent with City goals and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator and /or his /her duly
authorized designee informed on a regular basis regarding the status and progress of
MAXIMUS CONSULTING SERVICES, INC. Page 5
the Project, activities performed and planned, and any meetings that have been
scheduled or are desired.
14. INSURANCE
14.1 Without limiting Consultant's indemnification of City, and prior to
commencement of Work, Consultant shall obtain, provide and maintain at its own
expense during the term of this Agreement, policies of insurance of the type and
amounts described below and in a form satisfactory to City.
14.2 Proof of Insurance. Consultant shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a waiver of
subrogation endorsement for workers' compensation. Insurance certificates and
endorsement must be approved by City's Risk Manager prior to commencement of
performance. Current certification of insurance shall be kept on file with City at all times
during the term of this Agreement. City reserves the right to require complete, certified
copies of all required insurance policies, at any time.
14.2.1 Consultant shall procure and maintain for the duration of the
Agreement insurance against claims for injuries to persons or damages to property,
which may arise from or in connection with the performance of the Work hereunder by
Consultant, his agents, representatives, employees or subcontractors. The cost of such
insurance shall be included in Consultant's bid.
14.3 Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders' Rating
of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the
latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
14.4 Coverage Requirements.
14.4.1 Workers' Compensation Coverage. Consultant shall maintain
Workers' Compensation Insurance (Statutory Limits) and Employers Liability Insurance
(with limits of at least one million dollars ($1,000,000)) for Consultant's employees in
accordance with the laws of the State of California, Section 3700 of the Labor Code In
addition, Consultant shall require each subconsultant to similarly maintain Workers'
Compensation Insurance and Employer's Liability Insurance in accordance with the
laws of the State of California, Section 3700 for all of the subcontractor's employees.
14.4.1.1 Any notice of cancellation or non - renewal of all
Workers' Compensation policies must be received by City at least thirty (30) calendar
days (ten (10) calendar days written notice of non - payment of premium) prior to such
change.
14.4.1.2 Consultant shall submit to City, along with the
certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its
officers, agents, employees and volunteers.
MAXIMUS CONSULTING SERVICES, INC. Page 6
14.5 General Liability Coverage. Consultant shall maintain commercial general
liability insurance in an amount not less than one million dollars ($1,000,000) per
occurrence for bodily injury, personal injury, and property damage, including without
limitation, blanket contractual liability.
14.6 Automobile Liability Coverage. Consultant shall maintain automobile
insurance covering bodily injury and property damage for all activities of the Consultant
arising out of or in connection with Work to be performed under this Agreement,
including coverage for any owned, hired, non -owned or rented vehicles, in an amount
not less than one million dollars ($1,000,000) combined single limit for each accident.
14.7 Professional Liability (Errors & Omissions) Coverage. Consultant shall
maintain professional liability insurance that covers the Services to be performed in
connection with this Agreement, in the minimum amount of one million dollars
($1,000,000) limit per claim and in the aggregate.
14.8 Other Insurance Provisions or Requirements.
14.8.1 The policies are to contain, or be endorsed to contain, the following
provisions
14.8.1.1 Waiver of Subrogation. All insurance coverage
maintained or procured pursuant to this agreement shall be endorsed to waive
subrogation against City, its elected or appointed officers, agents, officials, employees
and volunteers or shall specifically allow Consultant or others providing insurance
evidence in compliance with these requirements to waive their right of recovery prior to
a loss. Consultant hereby waives its own right of recovery against City, and shall require
similar written express waivers and insurance clauses from each of its subcontractors.
14.8.1.2 Enforcement of Agreement Provisions. Consultant
acknowledges and agrees that any actual or alleged failure on the part of the City to
inform Consultant of non - compliance with any requirement imposes no additional
obligations on the City nor does it waive any rights hereunder.
14.8.1.3 Requirements not Limiting. Requirements of specific
coverage features or limits contained in this Section are not intended as a limitation on
coverage, limits or other requirements, or a waiver of any coverage normally provided
by any insurance. Specific reference to a given coverage feature is for purposes of
clarification only as it pertains to a given issue and is not intended by any party or
insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type.
14.8.1.4 Notice of Cancellation. Consultant agrees to oblige
its insurance agent or broker and insurers to provide to City with thirty (30) days notice
of cancellation (except for nonpayment for which ten (10) days notice is required) or
nonrenewal of coverage for each required coverage.
14.9 Timely Notice of Claims. Consultant shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from Consultant's
performance under this Agreement.
MAXIMUS CONSULTING SERVICES, INC. Page 7
14.10 Additional Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own judgment
may be necessary for its proper protection and prosecution of the Work.
15. WAIVER OF PRIOR CLAIMS
In consideration for the compensation provided in Paragraph 4 above, Consultant
waives any and all claims it can, could, or may raise against City for damage or
compensation of any type. This waiver includes, but is not limited to, all claims
against City for compensation, interest, litigation expenses, costs of all types, any
claims against the City relating to a Professional Services Agreement dated
November 30, 1998. In addition, with respect to the waivers stated herein,
Consultant acknowledges and agrees that such waivers are and shall be
effective regardless of any later- discovered information, and in connection with
such waivers. Consultant voluntarily and knowingly releases any and all
protections it may have under California Civil Code Section 1542, which provides
as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR.
This waiver is intended to be a full and final release of any and all such claims to
which it pertains, and Consultant warrants to the City that it has had the
opportunity to consult with legal counsel regarding the provisions of California
Civil Code Section 1542, and the consequences and implications of waiving
operation of this statute, and knowingly and voluntarily waives it.
16. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be provided
under this Agreement shall not be assigned, transferred contracted or subcontracted out
without the prior written approval of City. Any of the following shall be construed as an
assignment: The sale, assignment, transfer or other disposition of any of the issued
and outstanding capital stock of Consultant, or of the interest of any general partner or
joint venturer or syndicate member or cotenant if Consultant is a partnership or joint -
venture or syndicate or cotenancy, which shall result in changing the control of
Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty-
five percent (25 %) or more of the assets of the corporation, partnership orjoint- venture.
17. SUBCONTRACTING
City and Consultant agree that subcontractors may be used to complete the Work
outlined in the Scope of Services. The subcontractors authorized by City to perform
MAXIMUS CONSULTING SERVICES, INC. Page 8
Work on this Project are identified in Exhibit A. Consultant shall be fully responsible to
City for all acts and omissions of the subcontractor. Nothing in this Agreement shall
create any contractual relationship between City and subcontractor nor shall it create
any obligation on the part of City to pay or to see to the payment of any monies due to
any such subcontractor other than as otherwise required by law. The City is an
intended beneficiary of any Work performed by the subcontractor for purposes of
establishing a duty of care between the subcontractor and the City. Except as
specifically authorized herein, the Services to be provided under this Agreement shall
not be otherwise assigned, transferred, contracted or subcontracted out without the
prior written approval of City.
18. OWNERSHIP OF DOCUMENTS
18.1 Each and every report, draft, map, record, plan, document and other
writing produced (hereinafter "Documents'), prepared or caused to be prepared by
Consultant, its officers, employees, agents and subcontractors, in the course of
implementing this Agreement, shall become the exclusive property of City, and City
shall have the.. sole right to- use such materials in its discretion without further
compensation to Consultant or any other party. Consultant shall, at Consultant's
expense, provide such Documents to City upon prior written request.
18.2 Documents, including drawings and specifications, prepared by
Consultant pursuant to this Agreement are not intended or represented to be suitable
for reuse by City or others on any other project. Any use of completed Documents for
other projects and any use of incomplete Documents without specific written
authorization from Consultant will be at City's sole risk and without liability to
Consultant. Further, any and all liability arising out of changes made to Consultant's
deliverables under this Agreement by City or persons other than Consultant is waived
against Consultant and City assumes full responsibility for such changes unless City
has given Consultant prior notice and has received from Consultant written consent for
such changes.
19. COMPUTER DELIVERABLES
All written documents shall be transmitted to City in the City's latest adopted version of
Microsoft Word and Excel.
20. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept
confidential unless City authorizes in writing the release of information.
21. INTELLECTUAL PROPERTY INDEMNITY
The Consultant shall defend and indemnify City, its agents, officers, representatives and
employees against any and all liability, including costs, for infringement of any United
States' letters patent, trademark, or copyright infringement, including costs, contained in
Consultant's drawings and specifications provided under this Agreement.
MAXIMUS CONSULTING SERVICES, INC. Page 9
22. RECORDS
Consultant shall keep records and invoices in connection with the Work to be performed
under this Agreement. Consultant shall maintain complete and accurate records with
respect to the costs incurred under this Agreement and any Services, expenditures and
disbursements charged to City, for a minimum period of three (3) years, or for any
longer period required by law, from the date of final payment to Consultant under this
Agreement. All such records and invoices shall be clearly identifiable. Consultant shall
allow a representative of City to examine, audit and make transcripts or copies of such
records and invoices during regular business hours. Consultant shall allow inspection
of all Work, data, Documents, proceedings and activities related to the Agreement for a
period of three (3) years from the date of final payment to Consultant under this
Agreement.
23. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction of the
dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Consultant shall
not discontinue Work as a result of such withholding. Consultant shall have an
immediate right to appeal to the City Manager or his /her designee with respect to such
disputed sums. Consultant shall be entitled to receive interest on any withheld sums at
the rate of return that City earned on its investments during the time period, from the
date of withholding of any amounts found to have been improperly withheld.
24. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what would
have resulted if there were not errors or omissions in the Work accomplished by
Consultant, the additional design, construction and /or restoration expense shall be
borne by Consultant. Nothing in this paragraph is intended to limit City's rights under the
law or any other sections of this Agreement.
25. CITY S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the Project.
26. CONFLICTS OF INTEREST
26.1 The Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to
disclose any financial interest that may foreseeably be materially affected by the Work
performed under this Agreement, and (2) prohibits such persons from making, or
participating in making, decisions that will foreseeably financially affect such interest.
26.2 If subject to the Act, Consultant shall conform to all requirements of the
Act. Failure to do so constitutes a material breach and is grounds for immediate
termination of this Agreement by City. Consultant shall indemnify and hold harmless
MAXIMUS CONSULTING SERVICES, INC. Page 10
City for any and all claims for damages resulting from Consultant's violation of this
Section.
27. NOTICES
27.1 All notices, demands, requests or approvals to be given under the terms of
this Agreement shall be given in writing, and conclusively shall be deemed served when
delivered personally, or on the third business day after the deposit thereof in the United
States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All
notices, demands, requests or approvals from Consultant to City shall be addressed to
City at:
Attn: Tracy McCraner
Finance Department
City of Newport Beach
3300 Newport Boulevard
PO Box 1768
Newport Beach, CA 92658
27.2 All notices, demands, requests or approvals from CITY to Consultant shall
be addressed to Consultant at:
Attention: Steven E. Whitney
MAXIMUS CONSULTING SERVICES, INC.
17310 Red Hill Ave.
Irvine, CA 92614
28. CLAIMS
The Consultant and the City expressly agree that in addition to any claims filing
requirements set forth in the Agreement, the Consultant shall be required to file any
claim the Consultant may have against the City in strict conformance with the Tort
Claims Act (Government Code sections 900 et seq.).
29. TERMINATION
29.1 In the event that either party fails or refuses to perform any of the
provisions of this Agreement at the time and in the manner required, that party shall be
deemed in default in the performance of this Agreement. If such default is not cured
within a period of two (2) calendar days, or if more than two (2) calendar days are
reasonably required to cure the default and the defaulting party fails to give adequate
assurance of due performance within two (2) calendar days after receipt of written
notice of default, specifying the nature of such default and the steps necessary to cure
such default, and thereafter diligently take steps to cure the default, the non - defaulting
party may terminate the Agreement forthwith by giving to the defaulting party written
notice thereof.
29.2 Notwithstanding the above provisions, City shall have the right, at its sole
discretion and without cause, of terminating this Agreement at any time by giving seven
(7) calendar days prior written notice to Consultant. In the event of termination under
MAXIMUS CONSULTING SERVICES, INC. Page 11
this Section, City shall pay Consultant for Services satisfactorily performed and costs
incurred up to the effective date of termination for which Consultant has not been
previously paid. On the effective date of termination, Consultant shall deliver to City all
reports, Documents and other information developed or accumulated in the
performance of this Agreement, whether in draft or final form.
30. STANDARD PROVISIONS
30.1 Compliance With all Laws. Consultant shall at its own cost and expense
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all Work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
30.2 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
30.3 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged
herein. No verbal agreement or implied covenant shall be held to vary the provisions
herein.
30.4 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
30.5 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
30.6 Amendments. This Agreement may be modified or amended only by a
written document executed by both Consultant and City and approved as to form by the
City Attorney.
30.7 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
30.8 Controlling Law And Venue. The laws of the State of California shall
govern this Agreement and all matters relating to it and any action brought relating to
this Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange.
30.9 Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
MAXIMUS CONSULTING SERVICES, INC. Page 12
or applicant for employment because of race, religion, color, national origin, handicap,
ancestry, sex or age.
30.10 No Attorney's Fees. In the event of any dispute or legal action arising
under this Agreement, the prevailing party shall not be entitled to attorney's fees.
30.11 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one and the same instrument.
[SIGNATURES NEXT PAGE]
MAXIMUS CONSULTING SERVICES, INC. Page 13
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY AY R rS OFFICE
Date: ;,C, / %�
By:_ / I
Aaron C. Harp
City Attorney
ATTEST:
Date:
Bv:
Leilani I. Brown
City Clerk
Attachments:
CITY OF NEWPORT BEACH,
A California municipal corporation
Bv:
Nancy Gardner
Mayor
CONSULTANT: MAXIMUS
CONSULTING SERVICES, INC., a
Virginia corporation
By:_
Name:
Title:
Name:
Title:
[END OF SIGNATURES]
Exhibit A — Scope of Services
MAXIMUS CONSULTING SERVICES, INC. Page 14
EXHIBIT A
MAXIMUS CONSULTING SERVICES, INC. Page 15
MAXIMUS
HELPING GOVERNMENT SERVE THE PEOPLE
February 14, 2012
Ms. Tracy McCarren
City of Newport Beach
3300 Newport Boulevard
Newport Beach CA 92658
Re: Mandated Services Test Claims
Dear Ms. McCarren:
MAXIMUS Consulting Services, Inc. ( "MAXIMUS ") at no cost to the City of Newport Beach
(the "City") shall prepare the valid and appropriate State Mandated Cost annual claims that could
have been filed for the fiscal years from July 1, 2009 through June 30, 2010 (the "09/10 claims ")
and from July 1, 2010 through June 30 2011 (the "10 /11 claims ") including the Mandate
Reimbursement Process (MRP 1) claim for the costs associated with the prior work by
MAXIMUS in the preparation and submission of test claims on behalf of the City in accordance
with the contract between the parties with an effective date of November 30, 1998 and attached
to this letter as Exhibit A.
The City understands that the MRP I claim and 09/10 claims will be subject to a ten percent
(10 %) penalty because they are being filed after February 15, 2011 and that any claims for the
09/10 claims and the MRP I claim will be subject to a 100% penalty if filed after February 15,
2012. In addition, the 10/11 claims will be subject to a 10% penalty if filed after February 15,
2012. MAXIMUS will make its best efforts to get these claims filed before February 15, 2012
but the City agrees that MAXIMUS will not be liable for any late filing penalties.
Pursuant to the November 30, 1998 Agreement MAXIMUS prepared and successfully litigated
on behalf of the City six test claims and issued invoices to the City for the costs associated with
those test Claims. Copies of these invoices are attached to this letter as Exhibit B. The total
amount owed MAXIMUS under these invoices is $316,955. The City agrees that as it receives
funds from the State pursuant to the 09/10 and 10/11 claims it will pay MAXIMUS the money
owed under the Test claims invoices up to a maximum of $237,716. If at some future time the
State lifts the suspension of the MRP I claims and reimburses the City the $316,955 filed under
the MRP I claim the City shall pay MAXIMUS the remaining $79,239 owed under the Test
Claims invoices
The City shall only be obligated to pay MAXIMUS from funds it actually receives from the State
for the MRP 1 and 09/10 and 10/11 claims, and the City shall not be obligated to pay
MAXIMUS anything other than the $316,955 owed under the Test claims invoices included as
Exhibit B to this letter. MAXIMUS' sole obligation under this agreement is to prepare the MRP
109/10 and 10 /11 claims and defend those claims in an audit. MAXIMUS shall not be liable for
any late filing penalties, audit disallowances, lost revenues or any other costs or damages arising
from these claims.
MAXIMUS Consulting Services, Inc.
17310 RED HILL AVENUE, IRVINE CA 92614
PHONE 1.949.440.0845
Ms. TRACY MCCARREN FEBRUARY 14, 2012
CITY OF NEWPORT BEACH PALE 2 OF 2
By signing this letter the parties agree to be bound by the terms of this letter.
City of Newport Beach
By:
(Client Official)
Name:
Title:
Date:
MAXIMUS Consulting Services, Inc.
By: _
Name:
Title:
Date:
i11► : M ;
Test Claim Invoice Amount Invoice Date Start of Work End of Work SOD Date P &Gs Date Claiming Instructions
Admin Per Se
$66,667
06/09/2010
Oct -99
03 -Jun
02 -Aug
03 -Dec
04 -Mar
Brown Act
$17,363
12/31/2001
Aug -00
03 -Jan
01 -Jun
02 -Apr
02 -Jul
$9,449
06/09/2010
Elder Abuse
$15,315
12/31/2001
Nov -98
02 -Jan
01 -Jan
01 -May
Identity Theft
$22,189
06/09/2010
03 -Oct
10 -Jan
09 -Mar
11 -Jul
11 -Oct
MRP II
$108,638
06/09/2010
05 -Jul
10 -Mar
10 -Jan
11 -May
11 -Aug
DOJ
$77,334
06/09/2010
02 -Aug
09 -Sep
09 -Jul
10 -Sep
11 -Jan
D
n
3
3
CD
7
it
Attachment C
PROFESSIONAL SERVICES AGREEMENT
..:.;.. 4h �r Nd �
YG
TMS AGREEMENT, entered into this 3 day of ,bee 1998,
and effective immediately, by and between DMG- MAXEVIUS, INC. (hereinafter called the
"Consultant "), and the City of Newport Beach (hereinafter called "Newport Beach ").
Engagement. Newport Beach agrees to engage the Consultant to perform those
services described below, in order to file and assist in filing test claims with the
Commission on State Mandates.
Z Scope of Services. The Consultant agrees to assist in the preparation, or prepare
and file, on behalf of Newport Beach, such test claims with the Commnission on
State Mandates as the parties shall mutually agree. Consultant shall respond to all
filings by all state agencies, and shall attend all prehearing conferences and
hearings of the Commission on State Mandates on the test claim, through the
preparation of the Statewide Cost Estimate. It is understood that the obligations
of Consultant are through hearings before the Commission on State Mandates, and
Consultant -is not obligated to file suit in any court on said test claim in the event
that the Commission does not rule favorably for Newport Beach.
3. Compensation. Consultant agrees to charge its regular hourly rate, together with
usual and customary expenses, for the work performed, to the maximum hourly
rate and expenses allowed by the State Controller's Office. Payment to Consultant
is conditioned upon the City being successful in obtaining a determination from the
Commission on State Mandates of a reimbursable mandate for any portion of the
costs for any of the test claims which the parties mutually agree to pursue.
4. Reimbursement of Compensation. Newport Beach understands and
acknowledges that in the event any of the test claims pursued by virtue of this
contract are successful, that the City is� entitled to reimbursement for the costs paid
to Consultant hereunder through the Mandate Reimbursement Process claim,
Chapter 486, Statutes of 1975.
5, Relationship. The Consultant is an independent contractor and not to be
considered an agent or employee of Newport Beach.
6. Term. This agreement shall commence on the day of execution, and shall continue
until the Commission on State Mandates determines, as to each test claim pursued,
that there is no mandate, or until a Statewide Cost Estimate is adopted by the
Commission, after a finding of a reimbursable mandate.
7. Termination. This agreement may be terminated: (a) by either party at any time
for failure of the other party to comply with the terms and conditions of this
�T
Agreement; (b) by either party upon 10 days prior written notice to the other
::1ti
tia
16`0pt
:may:
party; or (c) upon mutual written agreement of both parties. In the event of
termination, the Consultant shall stop work immediately and shall be entitled to
compensation for professional service fees and for expense reimbursement as
established in Item 4 of this agreement to the date of termination.
8. Insurance. The Consultant shall maintain in force during the term of the
agreement, General Liability Insurance including Personal Injury; Excess Umbrella
Liability; Automobile Liability Insurance, (Non -Owned and Hired Liability); and
Workers' Compensation and Employers' Liability Insurance,
9. Indemnification The Consultant agrees to indemnify, defend and hold harmless
the City, its officers, employees and agents, with respect to any loss, liability, injury
or damage that arises out of, or is in any way related to, the acts or omissions of
the Consultant, its employees, officers and agents in the performance of any
activity, function or duty authorized by, or required under the terms of this
Agreement, except that the Consultant shall not be required to indemnify City in
connection with negligence or willful acts or omissions of the City, its officers,
agents or employees.
10. Miscellaneous.
a, The entire agreement between the parties with respect to the subject matter
hereunder is contained in this agreement.
b. Neither this agreement nor any rights or obligations hereunder shall be
assigned or delegated by the Consultant without the prior written consent of
Newport Beach.
c. This agreement shall be modified only by a written agreement duly executed by
Newport Beach and Consultant.
d. Should any of the provisions hereunder be found to be invalid, void or voidable
by a court, the remaining provisions shall be governed by and construed in
accordance with the laws of the State of California.
e. This agreement shall be governed by and construed in accordance with the
laws of the State of California.
f All notices required or permitted under this agreement shall be deemed to have
been given if and when deposited in the United States mail, properly stamped
and addressed to the party for whom intended at such party's address listed
below, or when delivered personally to such party. A party may change its
address for notice hereunder by giving written notice to the other party.
2
For Newport Beach: Glen Everroad, Revenue Manager
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92663
For Consultant: Allan P. Burdick, Vice President
DMG- MAXIMUS, INC.
4320 Auburn Blvd., Suite 2000
Sacramento, CA
IN WITNESS WHEREOF, the County and the Consultant have executed this Agreement
as of the date first written below.
By: t2
City of Newport Beach
ATTEST:
Date:
DMG- MAXIIAUS, Inc.
Allan P. Burdick, Vice President