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R-2016-107 2016-07-11 RESOLUTION NO. R2016-107 A Resolution of The City Council of the City of Pearland, Texas, authorizing the City Manager or his designee to participate in an interlocal cooperative pricing arrangement with the Houston- Galveston Area Council (HGAC) for the purchase of post-disaster debris monitoring services from TetraTech, Inc., for the period of June 1, 2016 through May 31, 2019. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That contract pricing has been obtained through interlocal cooperative partner HGAC for the purchase of post-disaster debris monitoring services. Section 2. That the City Manager or his designee is hereby authorized to participate in an interlocal cooperative pricing arrangement with the Houston-Galveston Area Council (HGAC) for the purchase of post-disaster debris monitoring services from TetraTech, Inc. PASSED, APPROVED and ADOPTED this the 11th day of July, A.D., 2016. TOM REID MAYOR ATTEST: I UNG ff:P ..N , -1/7 MC =►_: ���- • TY S '�'ETARY :` APPROVED AS TO FORM: D RRIN M. COKER CITY ATTORNEY Resolution No. R2016-107 COOPERATIVE PURCHASING MASTER SERVICES AGREEMENT PROFESSIONAL CONSULTING SERVICES THIS AGREEMENT is made this the 155 day of June, 2016, by and between the CITY OF PEARLAND, TEXAS, located at 3519 Liberty Drive, Pearland, Texas 77581 (hereinafter referred to as ("CLIENT") and TETRA TECH, INC. (hereinafter referred to as ("CONTRACTOR"), located at 2301 Lucien Way,Suite 120, Maitland, FL 32751. WHEREAS, the Houston-Galveston Area Council (HGAC) is a "Government-to-Government" procurement service for States, State Agencies, Local Governments Districts, Authorities, and qualifying Not-for-Profit Corporations. WHEREAS, Contractor acting as an independent Contractor, is a Contractor with extensive experience in providing emergency management planning,disaster management and recovery services. WHEREAS, HGAC has awarded Contractor a contract to provide professional all hazards preparedness, planning, consulting & recovery services in accordance with the HGAC Invitation to Bid No. HP07-16 dated February 12, 2016. The services include, but are not limited to, Security, Disaster Preparedness and Emergency Response& Recovery Services. WHEREAS, Client has reviewed the Invitation to Bid No. HP07-16 issued by HGAC, the responsive proposal of Contractor, and is satisfied that Contractor was selected by HGAC. WHEREAS, Client wishes to enter into an exclusive contractual agreement with Contractor to provide professional all hazards preparedness, planning, consulting & recovery service in accordance with the HGAC Invitation to Bid No. HP07-16. NOW, THEREFORE in consideration of the promises herein and for other good and valuable consideration,the parties agree as follows: 1. Scope of Services: Contractor and Client agree Contractor will perform services associated with disaster preparedness and emergency response & recovery services as described in Exhibit A, attached hereto. Task Orders shall be issued for specific deliverables under this Agreement. Such deliverables to be provided by Contractor will be determined by Client and specified in writing on each Task Order prior to commencing work. 2. Term: The term of this Agreement shall begin on the date written above through May 31, 2019 with automatic annual renewals, unless either party elects to withdraw. 3. Independent Contractor: Contractor is an independent contractor and is not an employee of Client. Services performed by Contractor under this Agreement are solely for the benefit of the Client. Nothing contained in this Agreement creates any duties on the part of Contractor toward any person not a party to this Agreement. 4. Standard of Care: Contractor will perform services under this Agreement with the degree of skill and diligence normally practiced by professional engineers or Contractors performing the same or similar services. No other warranty or guarantee, expressed or implied, is made with respect to the services furnished under this Agreement and all implied warranties are disclaimed. 5. Changes/Amendments: This Agreement and its exhibits constitute the entire agreement COOPERATIVE PURCHASING MASTER SERVICES AGREEMENT PROFESSIONAL CONSULTING SERVICES between the Parties and together with its exhibits supersede any prior written or oral agreements. This Agreement may not be amended, modified or changed except by written amendment executed by both Parties.The estimate of the level of effort, schedule and payment required to complete the Scope of Services, as Contractor understands it, is reflected herein. Services not expressly set forth in this Agreement or its exhibits are excluded. Contractor shall promptly notify Client if changes to the Scope of Services affect the schedule, level of effort or payment to Contractor and the schedule and payment shall be equitably adjusted. 6. Uncontrollable Forces: Neither the Client nor Contractor 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 non-performing party could not avoid. The term "Uncontrollable Forces" shall mean any event which results in the prevention or delay of performance by a party of its obligations under this Agreement and which is beyond the reasonable control of the nonperforming party. It includes, but is not limited to fire, flood, earthquakes, explosion, strike, transportation, or equipment delays, act of war, Act of God, lightning, epidemic, war, riot, civil disturbance, sabotage, acts of terrorism and governmental actions outside the control of the Client. The schedule or payment under the Agreement shall be equitably adjusted, if necessary, to compensate Contractor for any additional costs due to the delay. Neither party shall, however, be excused from performance if nonperformance is due to forces which are foreseeable, preventable, removable, or remediable, and which the nonperforming party could have, with the exercise of reasonable diligence, prevented, removed or remedied with reasonable dispatch. 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. 7. Fee for Services: The fee for the services under this Agreement will be based on either a fixed fee basis or the actual hours of services furnished multiplied by Contractor's Billing Rates as set forth in Exhibit B, plus all reasonable expenses directly related to the services furnished under this Agreement. 8. Compensation: Contractor shall bear the costs of performing all services under this Agreement, as directed by the Client, plus applicable permit and license fees and all maintenance costs required to maintain its vehicles and other equipment in a condition and manner adequate to accomplish and perform all services under this Agreement. Client shall pay Contractor in accordance with paragraph 7 above, "Fee for Services" (Exhibit B) which is attached and incorporated herein by reference as part of this Agreement. Contractor shall submit monthly invoice for services rendered. Client shall pay Contractor in U.S. dollars within thirty (30) days of receipt of invoices less any disputed amounts. If Client disputes any portion of the invoice, the undisputed portion will be paid and Contractor will be notified in writing, within ten (10) days of receipt of the invoice of the exceptions taken. Contractor and Client will attempt to resolve the payment dispute within Page 2 of 7 COOPERATIVE PURCHASING MASTER SERVICES AGREEMENT PROFESSIONAL CONSULTING SERVICES sixty (60) days or the matter may be submitted to arbitration as provided below. Additional charges for interest shall become due and payable at a rate of one and one-half percent (1- 1/2%) per month (or the maximum percentage allowed by law, whichever is lower) on the unpaid, undisputed invoiced amounts. Any interest charges due from Client on past due invoices are outside any amounts otherwise due under this Agreement. If Client fails to pay undisputed invoiced amounts within sixty (60) days after delivery of invoice, Contractor, at its sole discretion, may suspend services hereunder or may initiate collections proceedings, including mandatory binding arbitration, without incurring any liability or waiving any right established hereunder or by law. All invoices shall be delivered to: City of Pearland, Texas Attn:Accounts Payable 3519 Liberty Drive Pearland, Texas 77581 In order for both parties herein to close their books and records,the Contractor will clearly state "Final Invoice" on the Contractor's final/last billing to the Client. Such statement shall serve as certification that all services have been properly performed and all charges and costs have been invoiced to the Client. Upon submission of the Final Invoice, Client's account with Contractor will be closed and any and other further charges if not properly included on the Final Invoice shall be considered waived by the Contractor. 9. Indemnity: Contractor shall save harmless the Client from all claims and liability due to activities of himself, his agents, or employees, performed under this contract and which to the extent result from an negligent act, error or omission of the Contractor or of any person employed by the Contractor. Contractor shall also save harmless the Client from all expenses, including attorney fees which might be incurred by the Client in litigation or otherwise resisting said claims or liabilities which might be imposed on the Client as result of such activities by the Contractor, his agents,or employees. 10. Insurance: During the performance of the Services under this Agreement, Contractor shall maintain the following insurance policies: Worker's Compensation Statutory Employer's Liability U.S. $1,000,000 Commercial General Liability U.S. $1,000,000 per occurrence U.S. $1,000,000 aggregate Comprehensive General Automobile U.S. $1,000,000 combined single limit Professional Liability U.S. $1,000,000 per claim and in the aggregate 11. Work Product: Client shall have the unrestricted right to use the documents, analyses and other data prepared by Contractor under this Agreement ('Work Products'); provided, however Client shall not rely on or use the Work Products for any purpose other than the purposes under this Agreement and the Work Products shall not be changed without the prior written approval of Contractor. If Client releases the Work Products to a third party without Contractor's prior written consent, or changes or uses the Work Products other than as intended hereunder, (a) Page 3 of 7 COOPERATIVE PURCHASING MASTER SERVICES AGREEMENT PROFESSIONAL CONSULTING SERVICES Client does so at its sole risk and discretion, and (b) Contractor shall not be liable for any claims or damages resulting from the change or use or connected with the release or any third party's use of the Work Products. 12. Limitation of Liability: No employee of Contractor shall have individual liability to Client. To the extent permitted by law, the total liability of Contractor, its officers, directors, shareholders, employees and Subcontractors for any and all claims arising out of this Agreement, including attorneys' fees, and whether caused by negligence, errors, omissions, strict liability, breach of contract or contribution, or indemnity claims based on third party claims, shall not exceed one million dollars(U.S. $1,000,000). 13. No Consequential Damages: In no event and under no circumstances shall Contractor be liable to Client for any principal, interest, loss of anticipated revenues, earnings, profits, increased expense of operation or construction, loss by reason of shutdown or non-operation due to late completion or otherwise or for any other economic, consequential, indirect or special damages. 14. Information Provided by Others: Client shall provide to Contractor in a timely manner any information Contractor indicates is needed to perform the services hereunder. Contractor may reasonably rely on the accuracy of information provided by Client and its representatives. 15. Safety and Security: Contractor has established and maintains programs and procedures for the safety of its employees. Unless specially included as a service to be provided under this Agreement, Contractor specially disclaims any authority or responsibility for job site safety and safety of persons other than Contractor's or Subcontractor's employees. 16. Termination: Either party may terminate this Agreement upon thirty (30) days prior written notice to the other party. Client shall pay Contractor for all services rendered to the date of termination plus reasonable expenses for winding down the services. If either party defaults in its obligations hereunder, the non-defaulting party, after giving seven (7) days written notice of its intention to terminate or suspend performance under this Agreement, may, if cure of the default is not commenced and diligently continued, terminate this Agreement or suspend performance under this Agreement. 17. Dispute Resolution: Contractor and Client shall attempt to resolve conflicts or disputes under this Agreement in a fair and reasonable manner and agree that if resolution cannot be made to attempt to mediate the conflict by a professional mediator (except for payment disputes which may be submitted directly to arbitration). If mediation does not settle any dispute or action which arises under this Agreement or which relates in any way to this Agreement or the subject matter of this Agreement within ninety(90) days after either requests mediation, the dispute or conflict shall be subject to arbitration in English under the rules governing commercial arbitration as promulgated by the American Arbitration Association and arbitrability shall be subject to the Federal Arbitration Act. 18. Successors and Assigns: This Agreement is binding upon and will inure to the benefit of Client and Contractor and their respective successors and assigns. Neither party may assign its rights or obligations hereunder without the prior written consent of the other party. Page 4 of 7 I COOPERATIVE PURCHASING MASTER SERVICES AGREEMENT PROFESSIONAL CONSULTING SERVICES 19. Notices: Any notice required or permitted by this Agreement to be given shall be deemed to have been duly given if in writing and delivered personally or five (5) days after mailing by first- class, registered, or certified mail, return receipt requested, postage prepaid and addressed as follows: Client: Bob Pearce, Purchasing Officer City of Pearland,Texas 3519 Liberty Drive Pearland,TX 77581 281.652.1668 bpearce@pearlandtx.gov Contractor: Betty Kamara,Contracts Administrator Tetra Tech, Inc. 2301 Lucien Way, Suite 120 Maitland, FL 32751 407.803.2551 betty.kamara@tetratech.com 20. 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 affect 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. The parties further agree to reform the Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this section shall not prevent the entire Agreement from being void should a provision which is of the essence of the Agreement be determined to be void. 21. Governing Law and Venue: This Agreement shall be governed by and interpreted according to the laws of the State of Texas. The venue for any and all legal action necessary to enforce the Agreement shall be Brazoria County. 22. Access and Audits: Contractor shall maintain adequate financial and program records to justify all charges, expenses, and costs incurred in estimating and performing the work under this Agreement for at least three (3) years following final payment to the Client as Federal Emergency Management Agency sub-grantee as required by FEMA's 322 Public Assistance Guide, page 114 and 95.25.9 and 44 CFR§13.36 Procurement, Disaster Assistance Policy 9525.9, Section 324 Management Costs and Direct Administrative Costs, as amended, or any similar regulation, policy, or document adopted by FEMA subsequent to the execution of this Agreement. The Client shall have access to all records, documents and information collected and/or maintained by others in the course of the administration of the Agreement. This information shall be made accessible at the Contractor's place of business to the Client, including the Comptroller's Office and/or its designees, for purposes of inspection, Page 5 of 7 COOPERATIVE PURCHASING MASTER SERVICES AGREEMENT PROFESSIONAL CONSULTING SERVICES reproduction,and audit without restriction. 23. Compliance with Laws: In performance of the Services, Contractor will comply with applicable regulatory requirements including federal, state, special district, and local laws, rules, regulations, orders, codes, criteria and standards, and shall obtain all permits and licenses necessary to perform the Services under this Agreement at Contractor's own expense. 24. Non-Discrimination: The Contractor warrants and represents that all of its employees are treated equally during employment without regard to race, color, religion, gender, age or national origin. 25. Waiver:A waiver by either the Client or Contractor 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. The making or acceptance of a payment by either party with knowledge of the existence of a default or breach shall not operate or be construed to operate as a waiver of any subsequent default or breach. 26. Entirety of Agreement: The Client and the Contractor agree that this Agreement sets forth the entire agreement between the parties, and that there are no promises or understandings other than those stated herein. This Agreement supersedes all prior agreements, contracts, proposals, representations, negotiations, letters or other communications between the Client and Contractor pertaining to the Services, whether written or oral. None of the provisions, terms and conditions contained in this Agreement may be added to, modified, superseded or otherwise altered except by written instrument executed by the parties hereto. 27. Modification: The Agreement may not be modified unless such modifications are evidenced in writing and signed by both the Client and Contractor. Such modifications shall be in the form of a written Amendment executed by both parties. 28. Contingent Fees: The Contractor warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for the Contractor to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual or firm, other than a bona fide employee working solely for the Contractor, any fee, commission, percentage, gift or any other consideration contingent upon or resulting from the award or making of this Agreement. 29. Truth-in-Negotiation Certificate: Execution of this Agreement by the Contractor shall act as the execution of a truth-in-negotiation certificate certifying that the wage rates and costs used to determine the compensation provided for in this Agreement are accurate, complete, and current as of the date of the Agreement. 30. Confidentiality: No reports, information, computer programs, documentation, and/or data given to, or prepared or assembled by the Contractor under this Agreement shall be made available to any individual or organization by the Contractor without prior written approval of the Client. Page 6 of 7 COOPERATIVE PURCHASING MASTER SERVICES AGREEMENT PROFESSIONAL CONSULTING SERVICES 31. Miscellaneous: Client expressly agrees that all provisions of the Agreement, including the clause limiting the liability of Contractor, were mutually negotiated and that but for the inclusion of the limitation of liability clause in the Agreement, Contractor's compensation for services would otherwise be greater and/or Contractor would not have entered into the Agreement. In any action to enforce or interpret this Agreement, the prevailing party shall be entitled to recover, as part of its judgment, reasonable attorneys'fees and costs from the other party. 32. Counterparts:This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original instrument, but all of which taken together shall constitute one instrument. IN WITNESS WHEREOF,the Contractor has caused this Agreement to be signed in its corporate name by its authorized representative, and the Client has caused this Agreement to be signed in its legal corporate name by persons authorized to execute this Agreement as of the day and year first written above. CONTRACTOR: CLIENT: TETRA TECH, INC. \ CITY OF PEA j 11,T •S A ‘111% By: Jon.117 Burgle_ By: Air Title:Vic- 'resident/Operations Manager Title: 71/ G^C9G�— ATTES EST: Betty amara,Contracts Administrator / owt O = Page 7 of 7