Ordinance No. 9,710 AGREEMENT TO PROVIDE
PROFESSIONAL CONSULTING SERVICES TO
CITY OF BAYTOWN, TEXAS
THIS AGREEMENT, entered into this ;�3%dday of January, 2004, and effective
immediately by and between MAXIMUS, INC. (hereinafter called the "Consultant") and City of
Baytown, Texas (hereinafter called the"City").
WHEREAS, the Consultant is staffed with personnel knowledgeable and experienced
in the area of conducting storm water rate studies, and
WHEREAS, the City desires to engage the Consultant to assist in developing a storm
water rate study, and
NOW THEREFORE,the parties hereto mutually agree as follows:
1. Employment of Consultant. The City agrees to engage the Consultant and the
Consultant hereby agrees to perform services as outlined in its proposal for storm water rate
study dated December 8, 2003 (the "Proposal"). The Proposal is attached hereto as Exhibit "A"
and incorporated herein by this reference for all intents and purposes, provided that in the event
of any conflict or inconsistency between the provisions of this Agreement and the provisions of
the Proposal, the provisions of this Agreement shall control.
2. Scope of Services. The Consultant shall perform and carry out in a good and
professional manner the services as outlined in the Proposal. Consultant shall perform all
services under this Agreement with the care and skill ordinarily used by members of profession
practicing under the same or similar circumstances, time and locality. Additionally, the
Consultant shall be responsible for the technical accuracy of its services and documents resulting
therefrom, and the City shall not be responsible for discovering deficiencies therein. Consultant
shall correct deficiencies without additional compensation.
3. Time of Performance. The services to be performed hereunder by the Consultant
shall be undertaken and completed in such sequence as to assure their expeditious completion
and best carry out the purpose of the Agreement. The Consultant must submit and obtain the
approval of the City Council of a storm water rate study on or before June 8,2004.
4. Compensation. The City agrees to pay the Consultant a sum not to exceed FORTY-
FIVE THOUSAND AND NO/100 DOLLARS ($45,000.00) for all services required, plus a sum
not to exceed FOUR THOUSAND FIVE HUNDRED AND N0/100 DOLLARS ($4,500.00) for
reimbursement for travel and associated travel expenses.
5. Method of Payment. The Consultant shall be entitled to payment in accordance with
the provisions of this paragraph. The Consultant will invoice the City showing a detailed listing
Agreement to Provide Professional Consulting Services.Page 1
of all services performed upon both completion of a storm water rate study and acceptance of
such study by the City Council. Travel and associated travel expenses may be invoiced monthly
and shall show a detailed listing of such expenses. Receipts for expenses shall be available for
audit and provided to the City at no additional expense upon request. The City shall have thirty
(30) days to pay Consultant's invoice from the date of receipt of such invoice. All invoices must
identify with specificity the expenses incurred, and/or the work or services performed and the
date(s) of such expense, work or services. In the event of a disputed or contested invoice, the
parties understand and agree that the City may withhold the portion so contested, but the
undisputed portion will be paid.
6. Changes. The City may, from time to time, require changes in the scope of the
services of the Consultant to be performed hereunder. Such changes, which are mutually agreed
upon by and between the City and the Consultant, shall be incorporated in written amendment to
this Agreement.
7. Services and Materials to be Furnished by the City. The City shall locally furnish
the Consultant with all available necessary information, data, and material pertinent to the
execution of this Agreement. The City shall cooperate with the Consultant in carrying out the
work herein and shall provide adequate staff for liaison with the Consultant and other agencies
of the City government.
8. Termination. The City may terminate this Agreement at any time by giving at least
(5) days prior written notice of termination to the Consultant. Upon delivery of any notice of
termination required herein, Consultant shall discontinue all services in connection with the
performance of the Agreement. Within ten (10) days after receipt of the notice of termination,
Consultant shall submit a final statement showing in detail the services satisfactorily performed
and accepted and all other appropriate documentation required herein for payment of services
rendered prior to the date of termination. At the same time that the final statement is tendered to
the City, Consultant shall also tender all of Consultant's work product, whether complete or not,
in an acceptable form and format to the City's liaison. No final payment will be made until all
work product is so tendered. The calculation of payment shall be pursuant to the mutual
agreement of the parties provided, however, Consultant shall not be entitled to anticipatory
profit. If this Agreement is terminated for cause, Consultant shall be liable for any damage to the
City resulting therefrom. This liability includes any increased costs incurred by the City in
completing Consultant's work. The rights and remedies of the City in this section are in addition
to any other rights and remedies provided by law or under this Agreement.
9. Information and Reports. The Consultant shall, at such time and in such form as the
City may require, furnish such periodic reports concerning the status of the project, such
statements, certificates, approvals and copies of proposed and executed plans and claims and
other information relative to the project as may be requested by the City. The Consultant at the
completion of the services under this Agreement shall furnish the City a final report in such form
as may be required by the City. Furthermore, the Consultant will provide the City with a copy of
the computerized rate model, in Microsoft Excel format, supporting all findings of the study.
The rate model should be in suitable form for annual updates by City staff.
Agreement to Provide Professional Consulting Services.Page 2
10. Riizht of Review and Audit. City may review any and all of the services
performed by Consultant under this Agreement. City is hereby granted the right to audit, at
City's election, all of Consultant's billings relating to the performance of this Agreement.
Consultant agrees to retain such records for a minimum of three (3) years following completion
of this Agreement.
11. Ownership of Documents. Upon acceptance or approval by City or upon
termination of this Agreement, all reports, information and other data, given to, prepared or
assembled by Consultant under this Agreement, and any other related documents or items shall
become the sole property of City and shall be delivered to City, without restriction on future use.
Consultant may make copies of any and all documents for its files.
12. Notices. Unless otherwise provided in this Agreement, any notice provided for or
permitted to be given must be in writing and delivered in person or by depositing same in the
Unites States mail, postpaid and registered or certified, and addressed to the party to be notified,
with return receipt requested, or by delivering the same to an officer of such party. Notice
deposited in the mail as described above shall be conclusively deemed to be effective, unless
otherwise stated in this Agreement, from and after the expiration of three (3) days after it is so
deposited.
For the purpose of notice, the addresses of the parties shall be as follows unless properly
changed as provided for herein below:
CITY: CONSULTANT:
City of Baytown MAXIMUS,INC.
Gary Jackson, City Manager Robert McLain,National Director
2401 Market Street 13601 Preston Road, Suite 400 West
Baytown, TX 77520 Dallas, TX 75240
Each party shall have the right from time to time at any time to change its respective address and
each shall have the right to specify a new address,provided that at least fifteen (15) days'written
notice is given of such new address to the other party.
13. Insurance. Consultant shall procure and maintain at its sole cost and expense for
the duration of the Agreement, insurance against claims for injures to person or damages to
property which may arise from or in connection with the performance of the Work hereunder by
Consultant, its agents,representatives,volunteers, employees or subconsultants.
a. Consultant's insurance coverage shall be primary insurance with respect to the
City, its officials, employees and agents. Any insurance or self-insurance
maintained by the City, its officials, employees or agents shall be considered in
excess of Consultant's insurance and shall not contribute to it. Further,
Consultant shall include all subconsultants, agents and assigns as additional
insureds under its policy or shall furnish separate certificates and endorsements
for each such person or entity. All coverages for subconsultants and assigns shall
be subject to all of the requirements stated herein.
Agreement to Provide Professional Consulting Services.Page 3
The following is a list of standard insurance policies along with their respective
minimum coverage amounts required in this Agreement:
1. Commercial General Liability
■ General Aggregate: $1,000,000
■ Products &Completed Operations Aggregate: $1,000,000
■ Personal&Advertising Injury: $1,000,000
■ Per Occurrence: $500,000
■ Fire Damage$50,000
■ Coverage shall be at least as broad as ISO CG 00 01 10 93
■ No coverage shall be deleted from standard policy without
notification of individual exclusions being attached for review and
acceptance.
2. Business Automobile Policy
■ Combined Single Limits: $500,000
■ Coverage for"Any Auto"
3. Errors and Omissions
■ Limit: $1,000,000 for this project.
■ Claims-made form is acceptable
■ Coverage will be in force for three (3) years after the Project is
completed.
4. Workers' Compensation
■ Statutory Limits
■ Employer's Liability$500,000
■ Waiver of Subrogation required.
b. The following shall be applicable to all policies of insurance required herein.
1. Insurance carrier must have an A.M. Best Rating of B+:VIII or better.
2. Only insurance carriers licensed and admitted to do business in the State of Texas
will be accepted.
3. Liability policies must be on occurrence form. Errors and Omissions can be on
claims-made form.
4. Each insurance policy shall be endorsed to state that coverage shall not be
suspended, voided, canceled or reduced in coverage or in limits except after sixty
(60) days' prior written notice by certified mail,return receipt requested, has been
given to the City.
Agreement to Provide Professional Consulting Services,Page 4
5. The City, its officers, agents and employees are to be added as Additional
Insureds to all liability policies, with the exception of the Errors and Omissions
Policy required herein.
6. Upon request and without cost to the City, certified copies of all insurance polices
and/or certificates of insurance shall be furnished to the City.
7. Upon request and without cost to the City, loss runs (claims listing) of any and/or
all insurance coverages shall be furnished to the City.
8. All insurance required herein shall be secured and maintained in a Consultant or
companies satisfactory to the City, and shall be carried in the name of Consultant.
Consultant shall provide copies of insurance policies required hereunder to the
City on or before the effective date of this Agreement.
14. Indemnification and Release.
CONSULTANT AGREES TO AND SHALL INDEMNIFY AND
HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS,
AGENTS, AND EMPLOYEES (HEREINAFTER REFERRED TO
AS THE "CITY") FROM AND AGAINST ANY AND ALL CLAIMS,
LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND
LIABILITY OF EVERY KIND, INCLUDING ALL EXPENSES OF
LITIGATION, COURT COSTS, AND ATTORNEY'S FEES, FOR
INJURY TO OR DEATH OF ANY PERSON, FOR DAMAGE TO
ANY PROPERTY, OR FOR ANY BREACH OF CONTRACT,
ARISING OUT OF, OR IN CONNECTION WITH THE WORK
DONE BY CONSULTANT UNDER THIS AGREEMENT CAUSED
BY THE JOINT NEGLIGENCE OF THE CITY AND ANY OTHER
PERSON OR ENTITY AND/OR BY THE SOLE OR JOINT
NEGLIGENCE OF CONSULTANT AND ANY OTHER PERSON
OR ENTITY. IT IS THE EXPRESSED INTENTION OF THE
PARTIES HERETO, BOTH CONSULTANT AND THE CITY,
THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH
IS INDEMNITY BY CONSULTANT TO INDEMNIFY AND
PROTECT THE CITY FROM THE CONSEQUENCES OF (1) THE
CITY'S OWN NEGLIGENCE WHERE THAT NEGLIGENCE IS
THE CONCURRING CAUSE OF THE RESULTING INJURY,
DEATH OR DAMAGE AND (2) CONSULTANT'S OWN
NEGLIGENCE, WHETHER THAT NEGLIGENCE IS THE SOLE
OR A CONCURRING CAUSE OF THE RESULTING INJURY,
Ajreement to Provide Professional Consulting Services.Page 5
DEATH OR DAMAGE. SUCH INDEMNITY SHALL NOT APPLY,
HOWEVER, TO LIABILITY ARISING FROM THE PERSONAL
INJURY, DEATH, OR PROPERTY DAMAGE OF PERSONS THAT
IS CAUSED BY OR RESULTS FROM THE SOLE NEGLIGENCE
OF THE CITY. IN THE EVENT THAT ANY ACTION OR
PROCEEDING IS BROUGHT AGAINST THE CITY FROM
WHICH THE CITY IS INDEMNIFIED, CONSULTANT FURTHER
AGREES AND COVENANTS TO DEFEND THE ACTION OR
PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE
CITY. THE INDEMNITY PROVIDED FOR IN THIS ARTICLE
XIV SHALL SURVIVE THE TERMINATION OR EXPIRATION
OF THIS AGREEMENT.
By this Agreement, the City does not consent to litigation or suit, and the City
hereby expressly revokes any consent to litigation that it may have granted by the
terms of this Agreement or any other contract or agreement, any charter, or
applicable state law. Nothing contained herein shall be construed so as to limit or
waive the City's sovereign immunity. Consultant assumes full responsibility for its
work performed hereunder and hereby releases, relinquishes and discharges the
City, its officers, agents, and employees from all claims, demands, and causes of
action of every kind and character, including the cost of defense thereof, for any
injury to or death of any person (whether they be either of the parties hereto, their
employees, or other third parties) and any loss of or damage to property (whether
the property be that of either of the parties hereto, their employees, or other third
parties) that is caused by or alleged to be caused by, arising out of, or in connection
with Consultant's work to be performed hereunder. This release shall apply with
respect to Consultant's work regardless of whether said claims, demands, and
causes of action are covered in whole or in part by insurance.
15. Subcontractors and Subconsultants. Consultant shall receive written approval
of the City's liaison prior to the use of any subcontractors or subconsultants. A copy of all
proposed contracts with subconsultants and/or subcontractors shall be given to the City before
execution of such contracts.
16. Records. Within ten days of the City's request and at no cost to the City,the City
will be entitled to review and receive a copy of all documents that indicate work on the project
that is the subject of this Agreement.
17. Supervision of Consultant. Consultant is an independent contractor and the City
neither reserves nor possesses any right to control the details of the Work performed by
Consultant under the terms of this Agreement.
Agreement to Provide Professional Consulting Services,Page 6
18. Governing Law. This Agreement has been made under and shall be governed by
the laws of the state of Texas.
19. Venue. The obligations of the parties to this Agreement are performable in
Harris County, Texas, and if legal action is necessary to enforce same, exclusive venue shall lie
in Harris County,Texas.
20. No Third Party Beneficiary. This Agreement shall not bestow any rights upon
any third party,but rather, shall bind and benefit Consultant and the City only.
21. No Right to Arbitration. Notwithstanding anything to the contrary contained in
this Agreement, the City and Consultant hereby agree that no claim or dispute between the City
and Consultant arising out of or relating to this Agreement shall be decided by any arbitration
proceeding including, without limitation, any proceeding under the Federal Arbitration Act (9
U.S.C. Sections 1-14), or any applicable State arbitration statute, including, but not limited to,
the Texas General Arbitration Act, provided that in the event that the City is subjected to an
arbitration proceeding notwithstanding this provision, Consultant consents to be joined in the
arbitration proceeding if Consultant's presence is required or requested by the City of complete
relief to be recorded in the arbitration proceeding.
22. Waiver. No waiver by either party to this Agreement of any term or condition of
this Agreement shall be deemed or construed to be a waiver of any other term or condition or
subsequent waiver of the same term or condition.
23. Complete Agreement. This Agreement represents the entire and integrated
agreement between the City and Consultant in regard to the subject matter hereof and supersedes
all prior negotiations, representations or agreements, either whether written or oral, on the
subject matter hereof. This Agreement may only be amended by written instrument approved
and executed by both of the parties. The City and Consultant accept and agree to these terms.
24. No Assignment. Consultant may not sell or assign all or part interest in the
transport of the materials to another party or parties without the prior express written approval of
the City Manager of such sale or assignment. The City may require any records or financial
statements necessary in its opinion to ensure such sale or assignment will be in the best interest
of the City.
25. Headings. The headings used in this Agreement are for general reference only
and do not have special significance.
26. Severability. All parties agree that should any provision of this Agreement be
determined to be invalid or unenforceable, such determination shall not affect any other term of
this Agreement,which shall continue in full force and effect.
27. Ambiguities. In the event of any ambiguity in any of the terms of this
Agreement, it shall not be construed for or against any party hereto on the basis that such party
did or did not author the same.
Agreement to Provide Professional Consulting Services.Page 7
28. Non-Discriminatory Policy. Consultant agrees that as to all of its programs and
activities conducted on the subject premises, it shall comply fully with all Civil Rights Acts and
specifically will not discriminate against any person on the basis of race, color, national origin,
sex or by reason of being handicapped.
29. Compliance with Applicable Laws. The Agreement is subject to all legal
requirements in the City Charter and other laws, state and federal laws, regulations, orders and
rules of the State, County, City and all other governmental agencies.
30. Authority The officers executing this Agreement on behalf of the parties hereby
represent that such officers have full authority to execute this Agreement and to bind the party
he/she represents.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiple
copies, each of which shall be deemed to be an original,but all of which shall constitute but one
and the same Agreement on the date first written above.
CITY OF BAY I,TE S
By.
GARY JACK O , City Manager
ATTEST: ,
:GAIW W. NITH9 City Clerk
APPROVED AS TO FORM:
i
ACIO RAMIREZ, SR., Attorney
MAXIMUS, INC.
By:
J Kenzie, ice POSident
7
Agreement to Provide Professional Consulting Services.Page 8
STATE OF TEXAS §
COUNTY OF HARRIS §
Before me on this day personally appeared Jerry McKenzie, in his capacity as Vice
President of Maximus,Inc.,on behalf of such Consultant,
o� known to me;
proved to me on the oath of ; or
proved to me through his current
{description of identification card or other document issued by the federal
government or any state government that contains the photograph and signature of
the acknowledging person)
(�one)
to be the person whose name is subscribed to the foregoing instrument and acknowledged to me
that he executed the same for the purposes and consideration therein expressed.
SUBSCRIBED AND SWORN before me this ) q day 2004.
LuAnn Hartman Notary NOTARY PLBE1S Public in and for the State of s
STAVE OF KAHMS Kc�,rS o5
FAKarenTilesTontracts\Water and Sewer Rate Contract\BaytownAgreemcnt2003C]ean.doc
Agreement to Provide Professional Consulting Services,Page 9