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HomeMy WebLinkAboutKimleyA CONTRACT BETWEEN HOUSTON-GALVESTON AREA COUNCIL Houston, Texas AND Kimley Horn & Associates This Contract is made and entered into by the Houston -Galveston Area Council of Governments, hereinafter referred to as H-GAC, having its principal place of business at 3555 Timmons Lane, Suite 120, Houston, Texas 77027, AND Kimley Horn & Associates, hereinafter referred to as the CONTRACTOR, having its principal place of business at 12012 Wickerchester Lane, Suite 500, Houston, Texas, 77079. WITNESSETH WHEREAS: H-GAC enters into this Contract for the benefit of participating governmental agencies and qualifying non-profit corporations, hereinafter referred to as END USER, for Plan Source: Professional Planning Service Program offered by the CONTRACTOR: and WHEREAS: The CONTRACTOR offers to provide Professional Planning Services through the H-GAC Contract to END USERS and; WHEREAS: The parties have entered into a Contract to become effective as of June 1, 2009, through June 1, 2011, (the "Contract"), subject to extension upon mutual agreement of the CONTRACTOR and H-GAC and now THEREFORE: H-GAC and CONTRACOR do hereby agree as follows: • GENERAL PROVISION ARTICLES 1— 26 • ARTICLE 1: IDENTIFICATION OF CONTRACT DOCUMENTS The Contract shall be in effect for Plan Source: Professional Planning Service Program listed in H-GAC's Notice for Request for Proposals numbered CE09-02, including any relevant suffixes, and shall consist of the documents identified below in order of precedence: 1. The Text of this Contract Form 2. Contract Terms and Conditions as stated herein 3. Proposal Specification No: CE09-02 titled Exhibit A 4. CONTRACTOR Pricing Schedule (From Selected Contractor) titled Exhibit B ARTICLE 2: LEGAL AUTHORITY CONTRACTOR and H-GAC warrant and represent to each other that they have adequate legal counsel and authority to enter into this Contract. The governing bodies, where applicable, have authorized the signatory officials to enter into this Contract and bind the parties to the terms of this Contract and any subsequent amendments thereto. ARTICLE 3: APPLICABLE LAWS The parties agree to conduct all activities under this Contract in accordance with all applicable rules, regulations, directives, issuances, ordinances, and laws in effect or promulgated during the term of this Contract. ARTICLE 4: INDEPENDENT STATUS OF BOTH PARTIES The execution of this Contract and the rendering of services prescribed by this Contract do not change the independent status of H-GAC or CONTRACTOR. No provision of this Contract or act of H-GAC in performance of this Contract shall be construed as making CONTRACTOR the agent, servant or employee of H-GAC, the State of Texas or the United States Government. Employees of CONTRACTOR are subject to the exclusive control and supervision of CONTRACTOR, which is solely responsible for employee payrolls and claims arising there from. CONTRACTOR shall notify H-GAC of any lawsuits filed against it that if successful, would adversely affect its financial condition. A lawsuit, that includes a specific demand for an amount in excess of $250,000 that would not be covered by insurance, shall automatically be considered a lawsuit, that if successful would adversely affect the financial condition of the CONTRACTOR. Further, CONTRACTOR shall notify H-GAC of the threat of a lawsuit or any actual suit filed against CONTRACTOR relating to this Contract. ARTICLE 5: SUBCONTRACTS CONTRACTOR agrees not to subcontract, assign, transfer, convey, sublet or otherwise dispose of this Contract or any right, title, obligation or interest it may have therein to any third party without prior written notice to END USER. END USER reserves the right to accept or reject any such change. CONTRACTOR shall continue to remain responsible for all performance under this Contract regardless of any subcontract. END USER shall be liable solely to CONTRACTOR and not to any of its Subcontractors or Assignees. ARTICLE 6: TITLE NOT RESTRICTIVE The titles assigned to the various articles of this Contract are for convenience only and are generally descriptive of the maters following. Titles shall not be considered restrictive of the subject matter of any section, or part of this Contract. ARTICLE 7: EXAMINATION AND RETENTION OF CONTRACTOR'S RECORDS CONTRACTOR shall maintain during the course of its work, complete and accurate records of items that are chargeable to END USER under this Contract. H-GAC, through its staff or its designated public accounting firm, the State of Texas, or the United States Government shall have the right at any reasonable time to inspect copy and audit those records on or off the premises of CONTRACTOR. Failure to provide access to records may be cause for termination of this Contract. CONTRACTOR shall maintain all records pertinent to this Contract for a period of not less than seven (7) calendar years from the date of acceptance of the final contract closeout and until any outstanding litigation, audit or claim has been resolved. The right of access to records is not limited to the required retention period, but shall last as long as the records are retained. CONTRACTOR further agrees to include in all subcontracts under this Contract, a provision to the effect that the subcontractor agrees that H-GAC'S duly authorized representatives, shall, until the expiration of seven (7) calendar years after final payment under the subcontract or until all audit findings have been resolved, have access to, and the right to examine and copy any directly pertinent books, documents, papers, invoices and records of such subcontractor involving any transaction relating to the subcontract. ARTICLE 8: CHANGES AND AMENDMENTS Any alterations, additions, or deletions to the terms of this Contract which are required by changes in federal law or regulations are automatically incorporated into this Contract without written amendment hereto, and shall become effective on the date designated by such law or regulation; provided that if CONTRACTOR does not comply with such change, H-GAC or CONTRACTOR may terminate this Contract as authorized in Article 18. H-GAC may, from time to time, require changes in the scope of the services of the CONTRACTOR to be performed hereunder. Such changes that are mutually agreed upon by and between H-GAC and the CONTRACTOR in writing shall be incorporated into this Contract. ARTICLE 9: DISPUTES Any and all disputes concerning questions of fact or of law arising under this Contract, which are not disposed of by agreement, shall be decided by the Executive Director of H-GAC or his designee, who shall reduce his decision to writing and provide notice thereof to CONTRACTOR. The decision of the Executive Director or his designee shall be final and conclusive unless, within thirty (30) days from the date of receipt of such notice, CONTRACTOR requests a rehearing from the Executive Director of H-GAC. In connection with any rehearing under this Article, CONTRACTOR shall be afforded an opportunity to be heard and offer evidence in support of its position. The decision of the Executive Director after any such rehearing shall be final and conclusive. CONTRACTOR may, if it elects to do so, appeal the final and conclusive decision of the Executive Director to a court of competent jurisdiction. Pending final decision of a dispute hereunder, CONTRACTOR shall proceed diligently with the performance of this Contract and in accordance with H-GAC'S final decision. ARTICLE 10: SEVERABILITY Both parties agree that should any provision of this Contract be determined to be invalid or unenforceable, such determination shall not affect any other term of this Contract, which shall continue in full force and effect. ARTICLE 11: FORCE MAJEURE To the extent that either party to this Contract shall be wholly or partially prevented from the performance within the term specified of any obligation or duty placed on such party by reason of or through strikes, stoppage of labor, riot, fire, flood, acts of war, insurrection, accident, order of any court, act of God, or specific cause reasonably beyond the parry's control and not attributable to its neglect or nonfeasance, in such event, the time for the performance of such obligation or duty shall be suspended until such disability to perform is removed. Determination of force majeure shall rest solely with the END USER. ARTICLE 12: NON-DISCRIMINATION AND EQUAL OPPORTUNITY The CONTRACTOR agrees to comply with all federal statutes relating to nondiscrimination. These include but are not limited to: (a) Title VI of the Civil Rights Act of 1964 (P.L. 88-352) which prohibits discrimination on the basis of race, color or national origin; (b) Title IX of the Education Amendments of 1972, as amended (20 U.S.C. §§ 1681-1683, and 1685-1686), which prohibits discrimination on the basis of sex; (c) Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794), which prohibits discrimination on the basis of handicaps and the Americans with Disabilities Act of 1990; (d) the Age Discrimination Act of 1974, as amended (42 U.S.C. §§ 6101-6107), which prohibits discrimination on the basis of age; (e) the Drug Abuse Office and Treatment Act of 1972 (P.L. 92-255), as amended, relating to nondiscrimination on the basis of drug abuse; (f) the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (P.L. 91-616), as amended, relating to the nondiscrimination on the basis of alcohol abuse or alcoholism; (g) §§ 523 and 527 of the Public Health Service Act of 1912 (42 U.S.C. 290 dd-3 and 290 ee-3), as amended, relating to confidentiality of alcohol and drug abuse patient records; (h) Title VIII of the Civil Rights Act of 1968 (42 U.S.C. § 3601 et seq.), as amended, relating to nondiscrimination in the sale, rental or financing of housing; (I) any other nondiscrimination provisions in any specific statute(s) applicable to any Federal funding for this Contract; and 0) the requirements of any other nondiscrimination statute(s) which may apply to this Contract. ARTICLE 13: CIVIL AND CRIMINAL PROVISIONS AND SANCTIONS The CONTRACTOR agrees that it will perform the Agreement activities in conformance with safeguards against fraud and abuse as set forth by the H-GAC, the State of Texas, and the acts and regulations of the funding entity. The CONTRACTOR agrees to promptly notify H-GAC of suspected fraud, abuse or other criminal activity through the filing of a written report within twenty-four (24) hours of knowledge thereof and to notify H-GAC of any accident or incident requiring medical attention arising from its activities under this Agreement within twenty-four (24) hours of such occurrence. Theft or willful damage to property on loan to the CONTRACTOR from H-GAC, if any, shall be reported to local law enforcement agencies and H-GAC within two (2) hours of discovery of any such act. The Contractor further agrees to cooperate fully with H-GAC, local law enforcement agencies, the State of Texas, the Federal Bureau of Investigation and any other duly authorized investigative unit in carrying out a full investigation of all such incidents. ARTICLE 14: ISSUANCE OF CONSULTANT AGREEMENTS THROUGH INTERLOCAL CONTRACTS Through Interlocal Contracts, H-GAC offers governmental agencies and qualifying non-profit corporations the opportunity to participate in the PlanSource: Professional Planning Service Program. Therefore, participating END USERS may execute Consultant Agreements for implementation of application and services described in proposer's response and awarded by H-GAC. In addition, through Interstate Interlocal Contracts the Service is made available for possible participation by END USERS beyond Texas. ARTICLE 15: SCOPE OF SERVICES The services to be performed by CONTRACTOR are outlined within this Contract, any Attachment, Proposal specification and Proposal Response. ARTICLE 16: LIMITATION OF CONTRACTOR'S LIABILITY Except as specified in any separate writing between the CONTRACTOR and an END USER, CONTRACTOR understands and agrees that it shall be liable to repay and shall repay upon demand to END USER, any amounts determined by H-GAC, its independent auditors, or any agency of State or Federal governments to have been paid in violation of the terms of this Contract. ARTICLE 17: THE COMPLETE AGREEEMENT This Contract consists of the Contract text stated herein, including any Agreement, the Proposal Specifications documents, CONTRACTOR'S response, including but not limited to, prices and services offered, all of which are incorporated within this Contract and shall constitute the complete agreement between parties hereto. All of which are either attached hereto or incorporated by reference and hereby made a part of this Contract, and shall constitute the complete agreement between the parties hereto. This Contract supersedes any and all oral or written agreements between the parties relating to matters herein. Except as otherwise provided herein, this Contract cannot be modified without the written consent of both parties. ARTICLE 18: TERMINATION PROCEDURES CONTRACTOR acknowledges that this Contract may be terminated under the following conditions: A. Convenience H-GAC may terminate the Contract in whole or in part without cause at any time giving written notice by certified mail to the CONTRACTOR whenever for any reason H-GAC determines that such termination is in the best interest of H-GAC and END USERS. Upon receipt of notice to termination, all services hereunder of the CONTRACTOR and its employees and subcontractors shall cease to the extent specified in the notice of termination. In the event of termination in whole, the CONTRACTOR shall prepare a final invoice within 30 calendar days of such termination reflecting the services actually performed which have not appeared on any prior invoice for an END USER pursuant to the Contract. Participating END USERS agree to pay the CONTRACTOR, in accordance with the terms of the Contract, for services actually performed and accruing to the benefit of END USER less compensation previously paid. CONTRACTOR may cancel or terminate this Contract upon 30 calendar days written notice by certified mail to H-GAC. CONTRACTOR may not give notice of cancellation after it has received notice of default from H-GAC . In the event of such termination prior to completion of this Contract provided for herein, END USER will pay CONTRACTOR, in accordance with the terms and conditions of this Contract, for services actually performed and accruing to the benefit of END USER less any compensation previously paid. B. Default If the CONTRACTOR fails to perform in accordance with the terms and conditions set forth in the Contract documents, H-GAC may consider the CONTRACTOR to be in default. In this event, H-GAC may serve written notice upon the CONTRACTOR of its intention to terminate the Contract or a portion thereof. Such notice shall contain the reasons for such intention to terminate and the CONTRACTOR shall have 30 calendar days after receipt to cure or provide satisfactory plan of action to cure said default. If the CONTRACTOR fails to cure or provide a satisfactory plan to cure, H-GAC may issue a notice to termination. ARTICLE 19: RENEWAL OF CONTRACT H-GAC reserves the right to extend this Contract for up to two (2) additional twenty-four (24) month periods. Should H-GAC wish to exercise this right, it shall notify the CONTRACTOR no later than 60 days before the expiration date of the current contract. In the event CONTRACTOR performs services after the termination date of the Contract, H-GAC and END USERS will have no obligation to pay for such services unless H-GAC approves an agreement to do so, which approval shall be solely in H-GAC'S discretion. ARTICLE 20: GOVERNING LAW & VENUE This Contract shall be governed by the laws of the State of Texas. Venue and jurisdiction of any suit or cause of action arising under or in connection with this Contract shall lie exclusively in Harris County, Texas. Disputes between END USER and CONTRACTOR are to be resolved in accord with the law and venue rules of the state of purchase. CONTRACTOR shall immediately notify H-GAC of such disputes. ARTICLE 21: CONTRACTOR'S REPRESENTATIVE CONTRACTOR'S representative(s) shall be the contact person(s) concerning all matters pertaining to the END USER's order. The CONTRACTOR shall immediately communicate any changes of representation in written form to H-GAC. ARTICLE 22: CHANGE OF CONTRACTOR STATUS CONTRACTOR shall immediately notify H-GAC, in writing, of any change in ownership, control, dealership/franchisee status, or name, and shall also advise whether or not this Contract shall be affected in any way by such change. H-GAC shall have the right to determine whether or not such change is acceptable, and to determine what action shall be warranted, up to and including cancellation of Contract. ARTICLE 23: REPORTING REQUIREMENTS CONTRACTOR agrees to provide quarterly written reports to H-GAC. Such reports may include, but are not limited to the following: detailed copies of each Consultant Agreement with an END USER. If CONTRACTOR fails to submit to H-GAC in a timely and satisfactory manner any such report, or otherwise fails to satisfactorily render performance hereunder, such failure may be considered cause for termination of this Contract. ARTICLE 24: INDEMNIFICATION CONTRACTOR agrees, to the extent permitted by law, to defend and hold harmless H-GAC, END USERS, the State of Texas, the United States Government and their respective board members, officers, agents, officials, and employees from any and all claims, costs, expenses (including reasonable attorney fees), actions, causes of action, judgments, and liens arising as a result of the CONTRACTOR'S negligent or wrongful act or omission under this Agreement, the CONTRACTOR'S non-performance of this Agreement, or the CONTRACTOR'S violation of any law, regulation or other standard incorporated herein. CONTRACTOR shall notify H-GAC, END USERS, of the threat of lawsuit or of any actual suit filed against CONTRACTOR relating to this Agreement. ARTICLE 25: INSURANCE CONTRACTOR shall maintain insurance as set forth in Proposal Control No: RFP-CE09-02 and shall provide proof of said insurance to H-GAC. Only unaltered original insurance certificates endorsed by the underwriter are acceptable. Photocopies are unacceptable. Insurance coverage shall be in effect for the length of this Contract and any extensions thereof, plus number of months or days required to delivery any outstanding order after the close of this Contract. CONTRACTOR shall promptly notify H-GAC of cancellation or changes in insurance coverage during this contract period. ARTICLE 26: CONFIDENITALITY Any information transmitted between the CONTRACTOR and END USER shall be treated as confidential and not disclosed, except for information that: (1) is or becomes available to the public other than as a result of disclosure by the other party or (2) is required to be disclosed under applicable law. • SERVICES SPECIFIC ARTICLES 27 — 34 a ARTICLE 27: CONTRACT PERFORMANCE CONTRACTOR must meet the following performance criteria at all times, and to H-GAC's complete satisfaction. Failure to do so may be considered to be non -compliant performance and may result in Contract termination at H-GAC's sole discretion. 1. CONTRACTOR shall maintain sufficient qualified staff to process Consultant Agreements, and to respond promptly by telephone, fax and email. 2. CONTRACTOR shall participate in orientation and training as may be required by H-GAC. 3. H-GAC reserves the right to request a new Project Manager be assigned to the Contract (Proposal Specifications, General Terms and Condition(s). 4. CONTRACTOR will not in any manner whatsoever direct or encourage H-GAC END USER Participants to purchase contracted items by any means other than through the H-GAC Contract. 5. CONTRACTOR shall promptly respond WEND USER inquiries. ARTICLE 28: CONSULTANT AGREEMENTS WITH END USERS The END USER may choose to enter into a Consultant Agreement with the CONTRACTOR through this Contract as described in CONTRACTOR'S proposal response and acceptance of pricing provided in CONTRACTOR'S End User Service Request Form Response. The Consultant Agreement will be binding between END USER and CONTRACTOR. Termination of this Contract for any reason shall not result in the termination of the underlying END USER Consultant Agreement entered into between CONTRACTOR and any END USER which shall, in each instance, continue pursuant their stated terms and duration. The only effect of termination of this Contract is that CONTRACTOR will no longer be able to enter into any new END USER Consultant Agreement with the END USERS pursuant to this Contract. Applicable H-GAC Administrative Fee (2% of total project amount) would be due and payable to H-GAC on any END USER Consultant Agreements surviving termination of the Contract between H- GAC and CONTRACTOR. ARTICLE 29: END USER PAYMENT OF H-GAC ADMINSTRATIVE FEE CONTRACTOR agrees to sell its services to END USERS based on the terms of this Contract and detailed project pricing negotiated between the CONTRACTOR and END USER. For all services conducted by CONTRACTOR based on this Contract, END USER shall pay the applicable Administrative Fee (2% of total project amount) to H-GAC. Following is a description of the purchasing process by END USERS utilizing the H-GAC Plan Source Program: 1. Purchase orders and Agreements for overall contracted service(s) shall be sent to CONTRACTOR by END USER. A copy shall also be faxed or emailed to H-GAC. 2. For each purchase order, H-GAC will prepare an "Order Confirmation" and transmit it to END USER and to CONTRACTOR. The Order Confirmation verifies that CONTRACTOR has a valid H-GAC contract that was awarded through a competitive procurement process. 3. CONTRACTOR will deliver/implement the service/project and invoice to END USER. 4. END USER will pay CONTRACTOR for Services ordered and/or deliverables. 5. H-GAC will invoice CONTRACTOR for the END USER administrative fee, which CONTRACTOR will remit to H-GAC. If the scope of work entered into between the CONTRACTOR and END USER changes, CONTRACTOR shall notify H-GAC of the change in scope, and resultant change in cost. H-GAC will then issue an updated invoice, if necessary. ARTICLE 30: AUDITS BY H-GAC CONTRACTOR agrees to provide access to H-GAC authorized personnel for auditing of CONTRACTOR records of END USER Consultant Agreements and payments resulting from this Contract and for a period extending to the completion of any Consultant Agreement under the terms of this Contract. Audits shall be arranged not less than 10 calendar days before said inspections and shall state the name(s) of persons who will be conduct audits. CONTRACTOR shall not incur expenses relating thereto. ARTICLE 31: PRICES OFFERED BY CONTRACTOR Prices provided by CONTRACTOR should be firm for the entire term of the END USER contract. However changes will be considered if accompanied by proper and sufficient documentation satisfactory to END USER. Any request for a price change must be submitted to H-GAC on CONTRACTOR'S letterhead, must be signed by a corporate officer, and must be received by H-GAC at least forty five (45) calendar days prior to the requested effective date of the increase. 1. Limits of Price Adjustments —Price change requests must be supported with substantive documentation showing that CONTRACTOR'S actual costs have increased. Indexes may be used as partial justification, subject to approval by H-GAC. Price increases shall be limited to a maximum of 5% each year during the term of the contract. No retroactive contract price adjustments will be allowed. In the event that these indices are discontinued, or the titles or codes are revised, new indices shall be promptly identified and incorporated into the agreement. Pricing structure shall remain in effect for the term of this Contract. 2. Approval of Price Changes — No price change will be allowed unless it has been reviewed and approved by the END USER in writing. CONTRACTOR must have received END USER'S written approval of any change prior to charging the new price or using it in any quotation prepared for an END USER. 3. Right to Accept or Reject Price Change — All pricing shall remain in effect for the initial one-year term of the contract. If the contract term is extended, the END USER and CONTRACTOR will review unit prices and make adjustments based upon documented increases in costs. The END USER reserves the right to accept or reject any price change request within 30 calendar days after receipt of the request. If the price change is accepted, the price will remain firm for the following one year period. ARTICLE 32: CHANGES OF OWNERSHIP CONTRACTOR shall notify H-GAC of any material changes in name, ownership or control. Such notification shall be supplied within 10 business days of such change. ARTICLE 33: HISTORICALLY UNDERUTLIZED BUSINESSS H-GAC, acting on behalf of its END USERS to satisfy legislative requirements [Government Code, Chapter 2161, Subchapter D], captures data relative to participation of HUB enterprises in furnishing of products/services through H-GAC contracts. In that regard, H-GAC will require CONTRACTOR to furnish data relative to any of its HUB subcontractors whose services are included in the CONTRACTOR'S contract with H-GAC. CONTRACTOR agrees to furnish such information when requested by H-GAC. ARTICLE 34: PUBLICITY Any publicity released by the CONTRACTOR giving reference to this Contract, whether in the form of press releases, brochures, photographic coverage, or verbal announcement shall be issued only with prior approval of H-GAC. IN WITNESS WHEREOF, the parties have caused this Contract to be executed by their duly authorized representatives. Signed for Houston -Galveston Area Council, Houston, Texas: Jack Steele, Executive Director Date: Jwrle 2S , 20 01 Attest for Houston -Galveston Area Council, Houston, Texas: Jeff Taebel, Director of Community and Environmental Planning Date: 200 Signed fo leZorn Associates Printed Name & Title: Date: r , 20 Kimley Horn & Associates ::r;F & A iates Printed Name & T i ��t 11;17 _ . SSoc Date: U , 20�