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HomeMy WebLinkAboutResolution - 2022-R0058 - Contract 15708 with Bickerstaff for RedistrictingResolution No. 2022-R0058 Item No. 7.34 January 25, 2022 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the City Council of the City of Lubbock does hereby authorize and direct the City Manager to pay in accordance with Article II, Subsection B. of Professional Services Agreement Contract No. 15708 for Redistricting Services by and between the City of Lubbock and Bickerstaff Heath Delgado Acosta LLP, an amount up to $38,000.00 as the City increased the number of plans and other services. Passed by the City Council on _ ATTEST: )X7 Re ecca Garza, City S cre APPROVED AS TO CONTENT: Rebe ca Garza, City Secr to APPROVED AS TO FORM: January 25, 2022 DANIEL M. POPE, MAYOR Resolution No. 2021-R0232 PROFESSIONAL SERVICES AGREEMENT STATE OF TEXAS § COUNTY OF LUBBOCK § This Professional Service Agreement ("Agreement") Contract No.15708 is entered into Bickerstaff Heath Delgado Acosta LLP (the" Consultant"), a Texas limited liability partnership, and the political subdivisions of the State of Texas, consisting of the City of Lubbock (the "City), Lubbock County (the "County") and Lubbock Independent School District (the "LISD") hereafter referred to collectively as the "Political Subdivisions". WITNESSETH WHEREAS, the City desires to contract with the Consultant to provide professional services for Redistricting Services for and on behalf of the Political Subdivisions (the "Activities") as awarded in RFQ 21-15708-MA; and WHEREAS, the Consultant has a professional staff experienced and is qualified to provide professional Consulting services related to the Activities, and will provide the services, as defined below, for the price provided herein, said price stipulated by the City and the Consultant to be a fair and reasonable price; and WHEREAS, the City desires to contract with the Consultant to provide professional services related to the Activities, and Consultant desires to provide the Services related to same; NOW THEREFORE, for and in consideration of the terms, covenants and conditions set forth in this Agreement, the City, for itself and on behalf of the other Political Subdivisions, and the Consultant hereby agree as follows: ARTICLE I. TERM The initial term of this Agreement commences on the 22nd 2021 and continues without interruption until the Activities are complete. day of June Per RFQ 21-15708-MA (Exhibit `B"), Consultant must represent the County in odd years from 2023-2029 to update voting precincts as needed. The County must obtain a Scope of Work and current pricing from the Consultant in each odd numbered year as needed. 01333114;3 Page 1 of 11 ARTICLE H. SERVICES AND COMPENSATION A. The Consultant shall conduct all activities, and within such timeframes, as set forth in the Consultants response to RFQ 21-15708-MA, attached hereto as Exhibit "C" (the "Services'), or as otherwise agreed. B. The Consultant shall receive as consideration to be paid for the performance of the Services identified in the Political Subdivisions' respective estimated budgets, in an amount not to exceed $114,810.00, as set forth in Exhibit "A". Each of those estimated budgets provides for a limited number of plans to be developed, meetings and public meetings to be held, and of other related services; increases in the number of plans, meetings, public meetings, or other services would increase the total price. Reconfigurations of County election precincts in subsequent years is not included in the estimated budget for the County. ARTICLE III. TERMINATION A. General. The City may terminate this Agreement, for any reason or convenience, upon thirty (30) days written notice to the Consultant. In the event this Agreement is so terminated, the City shall only pay the Consultant for services actually performed by the Consultant up to the date the Consultant is deemed to have received notice of termination, as provided herein. B. Termination and Remedies. In the event the Consultant breaches any term and/or provision of this Agreement, the City shall be entitled to exercise any right or remedy available to it by this Agreement, at law, equity, or otherwise, including without limitation, termination of this Agreement and assertion of an action for damages and/or injunctive relief. The exercise of any right or remedy shall not preclude the concurrent or subsequent exercise of any right or remedy and all rights and remedies shall be cumulative. C. Termination by Consultant. The Consultant may terminate this Agreement as to any one or more of the Political Subdivisions upon thirty (30) days' written notice for failure of the applicable Political Subdivision to timely pay any invoice for Services; or for a Political Subdivision's refusal to accept the Consultant's legal advice regarding the Services. ARTICLE IV. NON - ARBITRATION The Political Subdivisions reserves the right to exercise any right or remedy available to them by law, contract, equity, or otherwise, including without limitation, the right to seek any and all forms of relief 01333114;3 Page 2 of 11 in a court of competent jurisdiction. Further, the Political Subdivisions shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this Agreement, this provision shall control. ARTICLE V. REPRESENTATIONS AND WARRANTIES A. Existence. The Consultant is a limited liability partnership duly organized, validly existing, and in good standing under the laws of the State of Texas and is qualified to carry on its business in the State of Texas. B. Corporate Power. The Consultant has the legal power and authority to enter into and perform this Agreement and all other activities contemplated hereby. C. Authorization. Execution, delivery, and performance of this Agreement and the activities contemplated hereby have been duly and validly authorized by all the requisite corporate action on the part of the Consultant. This Agreement constitutes legal, valid, and binding obligations of the Consultant and is enforceable in accordance with the terms thereof. D. Consultant. The Consultant maintains a professional staff and employs, as needed, other qualified specialists experienced in providing the Services, and is familiar with all laws, rules, and regulations, both state and federal, including, without limitation the applicable laws, regarding the Activities contemplated hereby. E. Performance. The Consultant will and shall conduct all activities contemplated by this Agreement in accordance with the standard of care, skill and diligence normally provided by a professional person in performance of similar professional services, and comply with all applicable laws, rules, and regulations, both state and federal, relating to professional services, as contemplated hereby. F. Use of Copyrighted Material. The Consultant warrants that any materials provided by the Consultant for use by the Political Subdivisions pursuant to this Agreement shall not contain any proprietary material owned by any third party that is protected under the Copyright Act or any other law, statute, rule, order, regulation, ordinance or contractual obligation relating to the use or reproduction of materials; or that Consultant has consent or other authorization to use and provide such third -party materials. The Consultant shall be solely responsible for ensuring that any materials provided by the Consultant pursuant to this Agreement satisfy this requirement and the Consultant agrees to indemnify 01333114;3 Page 3 of 11 and hold the Political Subdivisions harmless from all liability or loss caused to the Political Subdivisions or to which the Political Subdivisions are exposed on account of the Consultant's failure to perform this duty; except, however, if the Political Subdivisions (or any one or more of them) violate any limitations on use or dissemination stated by Consultant. ARTICLE VI. SCOPE OF WORK The Consultant shall accomplish the following: Professional Services related to the Services, as provided in Exhibit "A-C", attached hereto and made a part hereof for each Political Subdivision ARTICLE VII. INDEPENDENT CONTRACTOR STATUS The Consultant and the Political Subdivisions agree that the Consultant shall perform the duties under this Agreement as an independent contractor and shall be considered as independent contractor under this Agreement and/or in its activities hereunder for all purposes. The Consultant has the sole discretion to determine the manner in which the Services are to be performed. During the performance of the Services under this Agreement, the Consultant and the Consultant's employees and/or sub - consultants, will not be considered, for any purpose, employees or agents of the Political Subdivisions within the meaning or the application of any federal, state or local law or regulation, including without limitation, laws, rules or regulations regarding or related to unemployment insurance, old age benefits, workers compensation, labor, personal injury or taxes of any kind. ARTICLE VIII. INSURANCE The Consultant shall procure and carry, at its sole cost and expense through the life of this Agreement, except as otherwise provided herein, insurance protection as hereinafter specified, in form and substance satisfactory to the Political Subdivisions, carried with an insurance company authorized to transact business in the state of Texas, covering all aspects and risks of loss of all operations in connection with this Agreement, including without limitation, the indemnity obligations set forth herein. The Consultant shall obtain and maintain in full force and effect during the term of this Agreement, and shall cause each approved subcontractor or sub -consultant of the Consultant to obtain and maintain in full force and effect during the term of this Agreement, commercial general liability, professional liability and automobile liability coverage for non -owned and hired vehicles with insurance carriers admitted to do business in the state of Texas. The insurance companies must carry a Best's Rating of A-Vu or better. Except for Professional Liability, the policies will be written on an occurrence basis, subject to the following minimum limits of liability: 01333114;3 Page 4 of 11 Commercial General Liability: Per Occurrence Single Limit: $1,000,000 General Aggregate Limit: $2,000,000 Professional Liability: Combined Single Limit: $2,000,000 Automobile Liability: Combined Single Limit for any auto: $1,000,000 Per Occurrence Employer's Liability: Per Occurrence Single Limit: $1,000,000 Worker's Compensation Per Occurrence Single Limit: $500,000 The Consultant shall further cause any approved subcontractor or sub -consultant to procure and carry, during the term of this Agreement, the insurance coverage required of Consultant herein, including without limitation, Professional Liability coverage, protecting the Political Subdivisions against losses caused by the professional negligence of the approved subcontractor or sub -consultant. The Political Subdivisions shall be listed as a primary and noncontributory additional insured with respect to the Automobile Liability and Commercial General Liability and shall be granted a waiver of subrogation under those policies. The Consultant shall provide a Certificate of Insurance to the Political Subdivisions as evidence of coverage. The Certificate shall provide 30 day's notice of cancellation. A copy of the additional insured endorsement and waiver of subrogation attached to the policy shall be included in the Certificate. The Consultant shall elect to obtain worker's compensation coverage pursuant to Section 406.002 of the Texas Labor Code. Further, the Consultant shall maintain said coverage throughout the term of this Agreement and shall comply with all provisions of Title 5 of the Texas Labor Code to ensure that the Consultant maintains said coverage. The Consultant may maintain Occupational Accident and Disability Insurance in lieu of Worker's Compensation. In either event, the policy must be endorsed to include a waiver of subrogation in favor of the Political Subdivisions. If at any time during the life of the Agreement or any extension hereof, the Consultant fails to maintain the required insurance in full force and effect, the Consultant shall be in breach hereof and all work under the Agreement shall be discontinued immediately. Notwithstanding anything contained herein to the contrary, the professional liability policy shall be maintained at the Consultant's sole cost and expense. The retroactive date shall be no later than the commencement of the performance of this Agreement and the discovery period (possibly through tail 01333114;3 Page 5 of 11 coverage) shall be no less than 10 years after the completion of the Services provided for in this Agreement. The provisions of this Article VIII shall survive the termination or expiration of this Agreement. ARTICLE IX. EMPLOYMENT OF AGENTS/RETAINING OF CONSULTANTS The Consultant may employ or retain consultants, contractors, or third parties (any of which are referred to herein as "Sub -consultant"), to perform certain duties of Consultant, as set forth on Exhibit "A", attached hereto, under this Agreement. The Consultant is at all times responsible to the Political Subdivisions to perform the Services as provided in this Agreement and the Consultant is in no event relieved of any obligation under this Agreement upon retainage of any approved Sub -consultant. Any agent and/or Sub -consultant retained and/or employed by the Consultant shall be required by the Consultant to carry, for the protection and benefit of the Political Subdivisions and the Consultant and naming said third parties as additional insureds, insurance as described above required to be carried by the Consultant in this Agreement. The Consultant represents that such services are either under applicable value thresholds or are otherwise exempt from notice and/or bid requirements under Texas Law. ARTICLE X. CONFIDENTIALITY The Consultant shall retain all information received from or concerning the Political Subdivisions and the Political Subdivisions' business in strictest confidence and shall not reveal such information to third parties without prior written consent of the Political Subdivisions, unless otherwise required by law, except for information deemed public under the Texas Public Information Act. ARTICLE XI. INDEMNITY THE CONSULTANT SHALL INDEMNIFY AND SAVE HARMLESS THE POLITICAL SUBDIVISIONS AND ITS ELECTED OFFICIALS, OFFICERS, AGENTS, AND EMPLOYEES FROM ALL SUITS, ACTIONS, LOSSES, DAMAGES, CLAIMS, OR LIABILITY OF ANY KIND, CHARACTER, TYPE, OR DESCRIPTION, INCLUDING WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEY'S FEES, FOR INJURY OR DEATH TO ANY PERSON, OR INJURY TO ANY PROPERTY, RECEIVED OR SUSTAINED BY ANY PERSON OR PERSONS OR PROPERTY, TO THE EXTENT PROXIMATELY CAUSED BY THE NEGLIGENT ACTS OF THE CONSULTANT, ITS AGENTS, 01333114;3 Page 6 of 11 EMPLOYEES, AND/OR SUBCONSULTANTS, RELATED TO THE PERFORMANCE, OPERATIONS OR OMISSIONS UNDER THIS AGREEMENT AND/OR THE USE OR OCCUPATION OF POLITICAL SUBDIVISIONS OWNED PROPERTY. THE INDEMNITY OBLIGATION PROVIDED HEREIN SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT. TO THE EXTENT PERMITTED BY LAW, THE POLITICAL SUBDIVISIONS (OR THE APPLICABLE POLITICAL SUBDIVISION(S)) SHALL INDEMNIFY AND SAVE HARMLESS THE CONSULTANT AND ITS OFFICERS, AGENTS, EMPLOYEES, AND SUB -CONSULTANTS FROM ALL SUITS, ACTIONS, LOSSES, DAMAGES, CLAIMS, OR LIABILITY OF ANY KIND, CHARACTER, TYPE, OR DESCRIPTION, INCLUDING WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEY'S FEES, FOR: (A) INJURY OR DEATH TO ANY PERSON, OR INJURY TO ANY PROPERTY, RECEIVED OR SUSTAINED BY ANY PERSON OR PERSONS OR PROPERTY, TO THE EXTENT PROXIMATELY CAUSED BY THE NEGLIGENT ACTS OF THE CONSULTANT, ITS AGENTS, EMPLOYEES, AND/OR SUBCONSULTANTS, RELATED TO THE PERFORMANCE, OPERATIONS OR OMISSIONS UNDER THIS AGREEMENT AND/OR THE USE OR OCCUPATION OF POLITICAL SUBDIVISIONS OWNED PROPERTY; AND (B) ANY CLAIM BY A THIRD PARTY OF INFRINGEMENT OF THE THIRD PARTY'S INTELLECTUAL PROPERTY OR PROPRIETARY INFORMATION BASED IN WHOLE OR PART ON ASSERTIONS OF UNAUTHORIZED USE, DISSEMINATION, OR OTHER INFRINGEMENT ("INFRINGING USE") BY THE RESPECTIVE POLITICAL SUBDIVISION(S), WHERE THE POLITICAL SUBDIVISION WAS INFORMED BY CONSULTANT THAT SUCH INFRINGING USE WAS PROSCRIBED. ARTICLE XII. COMPLIANCE WITH APPLICABLE LAWS The Consultant shall comply with all applicable federal, state and local laws, statutes, ordinances, rules and regulations relating, in any way, manner or form, to the activities under this Agreement, and any amendments thereto. ARTICLE XIII. NOTICE A. General. Whenever notice from the Consultant to the Political Subdivisions or the Political Subdivisions to the Consultant is required or permitted by this Agreement and no other method of notice is provided, such notice shall be given by (1) actual delivery of the written notice to the other party by hand (in which case such notice shall be effective upon delivery); (2) facsimile (in which case such notice 01333114;3 Page 7 of 11 shall be effective upon delivery); or (3) by depositing the written notice in the United States mail, properly addressed to the other party at the address provided in this article, registered or certified mail, return receipt requested, in which case such notice shall be effective on the third business day after such notice is so deposited. B. Consultant's Address. The Consultant's address and numbers for the purposes of notice are: Bickerstaff, Heath, Delgado, Acosta, LLP. ATTN:David M6ndez 3711 S. MoPac Expressway Building One, Suite 300 Austin, TX 78746 Telephone: 512-472-8021 C. Political Subdivisions' Address. The Political Subdivisions' address and numbers for the purposes of notice are: City of Lubbock Attn: Becky Garza P.O. Box 2000 1314 Avenue K Lubbock, Texas 79457 Email:bgarza a;mylubbock.us Telephone: 806-775-2061 Lubbock County Attn: Curtis Parrish P.O. Box 10536 916 Main Street Lubbock, TX 79408 Email: cparrish(iu 1 ubbockcounty_.gov Telephone: 806-775-1687 Lubbock ISD Attn: Sheri Dahl 1628 191s Street Lubbock, TX 79401 Email: sherri.dahlOjubbockisd.ort; Telephone: 806-219-0233 D. Change of Address. Either party may change its address or numbers for purposes of notice by giving written notice to the other party as provided herein, referring specifically to this Agreement, and setting forth such new address or numbers. The address or numbers shall become effective on the 15th day after such notice is effective. ARTICLE XIV. POLITICAL SUBDIVISIONS -PROVIDED DATA AND RESPONSIBILITIES Provision of Data. The Political Subdivisions shall furnish the Consultant non -confidential studies, reports and other available data in the possession of the Political Subdivisions pertinent to the Consultant's Services (the "Provided Data). The Consultant shall be entitled to use and rely, so long as such reliance is reasonable, upon all such Provided Data. 01333114;3 Page 8 of 11 ARTICLE XV. MISCELLANEOUS A. Captions. The captions for the articles and sections in this Agreement are inserted in this Agreement strictly for the parties' convenience in identifying the provisions to this Agreement and shall not be given any effect in construing this Agreement. B. Records. The Consultant shall maintain records that are necessary to substantiate the services provided by the Consultant. D. Assignability. The Consultant may not assign this Agreement without the prior written approval of the City. E. Successor and Assigns. This Agreement binds and inures to the benefit of the Political Subdivisions and the Consultant, and in the case of the Political Subdivisions, its respective successors, legal representatives, and assigns, and in the case of the Consultant, its permitted successors and assigns. F. Construction and Venue. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. THIS AGREEMENT IS PERFORMABLE IN PART IN LUBBOCK COUNTY, TEXAS. THE PARTIES HERETO HEREBY IRREVOCABLY CONSENT TO THE SOLE AND EXCLUSIVE JURISDICTION AND VENUE OF THE COURTS OF COMPETENT JURISDICTION OF THE STATE OF TEXAS, COUNTY OF LUBBOCK, FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS THAT ARE CONTEMPLATED HEREBY. G. Severability. If any provision of this Agreement is ever held to be invalid or ineffective by any court of competent jurisdiction with respect to any person or circumstance, the remainder of this Agreement and the application of such provision to persons and/or circumstances other than those with respect to which it is held invalid or ineffective shall not be affected thereby. H. Amendment. No amendment, modification, or alteration of the terms of this Agreement shall be binding unless such amendment, modification, or alteration is in writing, dated subsequent to this Agreement, and duly authorized and executed by the Consultant and the City. I. Entire Agreement. This Agreement, including Exhibits "A" through "C" attached hereto, contains the entire agreement between the City and the Consultant, and there are no other written or oral 01333114;3 Page 9 of 11 promises, conditions, warranties, or representations relating to or affecting the matters contemplated herein. J. No Joint Enterprise. Nothing contained herein shall be construed to imply a joint venture, joint enterprise, partnership or principal agent relationship between the Consultant and the Political Subdivisions. K. Documents Owned by Political Subdivisions. Any and all physical documents, drawings and specifications prepared by Consultant as part of the Services hereunder, shall become the property of the Political Subdivisions when the Consultant has been compensated as set forth in Article II, above. The Consultant shall make copies of any and all work products for its files. No copyrights or other rights in or to the work product of Consultant are transferred by this Agreement; provided, that the applicable Political Subdivision shall have the right to use in the ordinary course of its business, including reproducing and disseminating, all work product of Consultant provided by Consultant to the Political Subdivision. L. Notice of Waiver. A waiver by either a Political Subdivision or the Consultant of a breach of this Agreement must be in writing and duly authorized to be effective. In the event either party shall execute and deliver such waiver, such waiver shall not affect the waiving party's rights with respect to any other or subsequent breach. M. No Third Party Beneficiaries. Nothing in this Agreement shall be construed to provide any rights or benefits whatsoever to any party other than the Political Subdivisions and the Consultant. N. Non -Appropriation. All funds for payment by the City under this Agreement are subject to the availability of an annual appropriation for this purpose by the City. In the event of non -appropriation of funds by the City Council of the City of Lubbock for the services provided under the Agreement, the City will terminate the Agreement, without termination charge or other liability, on the last day of the then - current fiscal year or when the appropriation made for the then -current year for the services covered by this Agreement is spent, whichever event occurs first (the "Non -Appropriation Date'); and Consultant shall have no further obligation or liability under the Agreement; provided, that payment for services provided in whole or party by Consultant prior to termination shall be promptly paid, subject to limits of the remaining current appropriation. If at any time funds are not appropriated for the continuance of this Agreement, cancellation shall be accepted by the Consultant on thirty (30) days prior written notice,. 01333114;3 Page 10 of 11 O. Contracts with Companies Engaged in Business with Iran, Sudan, or Foreign Terrorist Organization Prohibited. Pursuant to Section 2252.152 of the Texas Government Code, prohibits the City from entering into a contract with a vendor that is identified by The Comptroller as a company known to have contracts with or provide supplies or service with Iran, Sudan or a foreign terrorist organization. P. No Boycott of Israel. Pursuant to Section 2271.002 of the Texas Government Code, Respondent certifies that either (i) it meets an exemption criteria under Section 2271.002; or (ii) it does not boycott Israel and will not boycott Israel during the term of the contract resulting from this solicitation. Respondent shall state any facts that make it exempt from the boycott certification in its Response. Q. Texas Public Information Act. The requirements of Subchapter J, Chapter 552, Government Code, may apply to this contract and the contractor or vendor agrees that the contract can be terminated if the contractor or vendor knowingly or intentionally fails to comply with a requirement of that subchapter. To the extent Subchapter J, Chapter 552, Government Code applies to this agreement, Contractor agrees to: (1) preserve all contracting information related to the contract as provided by the records retention requirements applicable to the governmental body for the duration of the contract; (2) promptly provide to the governmental body any contracting information related to the contract that is in the custody or possession of the entity on request of the governmental body; and (3) on completion of the contract, either: (A) provide at no cost to the governmental body all contracting information related to the contract that is in the custody or possession of the entity; or (B) preserve the contracting information related to the contract as provided by the records retention requirements applicable to the governmental body. EXECUTED by each Parties on the dates indicted below. CITY OF L OCK DANIEL M. POPE, MAYOR DATE: June 22, 2021 ATTEST: Re ecca Garza, City S re 01333114;3 Page 11 of 11 10.0 0 �. —44, City D artment Head APPROVED AS TO FORM: Amy L. ' s, Deputy City Attorney BICKERSTAFF, HEATH, DELGADO, ACOSTA LLP By: [Firm Signature] DATE: 6/15/2021 01333114;3 Page 12 of 11