HomeMy WebLinkAboutResolution - 2022-R0392 - Professional Service Contract 16614 with RAYO Planning 9.13.22Resolution No. 2022-RO392
Item No. 5.34
September 13, 2022
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute
for and on behalf of the City of Lubbock, Contract No. 16614 for a Neighborhood Planning
Consultant as per RFQ 22-16614-MA, by and between the City of Lubbock and RAYO
Planning of Dallas, TX, and related documents. Said Contract is attached hereto and
incorporated in this resolution as if fully set forth herein and shall be included in the minutes
of the City Council.
Passed by the City Council on September 13, 2022
ATTEST:
Reb cca Garza, City Secret
APPROVED AS TO CONTENT:
Erik Rejino, Assistant City Manager
APPROVED AS TO FORM:
elli Leisure, Assistant City Attorney
ccdocslRES.Professional ServiceAgreement 16614- RAYO Planning
08.31.22
Resolution No. 2022-RO392
PROFESSIONAL SERVICES AGREEMENT
STATE OF TEXAS §
COUNTY OF LUBBOCK §
This Professional Service Agreement ("Agreement") Contract No 16614 entered into this
13th day of September 2022, is by and between the City of Lubbock (the "City"), a
Texas home rule municipal corporation, and RAYO Planning, (the "Consultant"), a Texas
corporation.
WITNESSETH
WHEREAS, The City desires to contract with the Consultant to provide professional
services for the creation of two neighborhood plans for North and East Lubbock and the
creation of a neighborhood planning policy for the City of Lubbock, (the "Activities"); and
WHEREAS, the Consultant has a professional staff experienced and is qualified to
provide professional consulting services related to 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 and the Consultant hereby agree as follows:
ARTICLE I. TERM
The term of this Agreement commences on the Effective Date (September 13, 2022)
and continues without interruption for a term of 12 months. If the City determines that
additional time is required to complete the Services, the Director of Planning, may, but is not
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obligated to, in his or her discretion, execute an agreement to grant up to an additional six
(6) months of time so long as the amount of the consideration does not increase. An
amendment to this Agreement resulting in an increase in the amount of the consideration must
be approved by the City acting through its governing body.
ARTICLE II. SERVICES AND COMPENSATION
A. The Consultant shall conduct all activities, and within such timefiames, as set
forth on Exhibit "A", attached hereto (the "Services").
B. The Consultant shall receive as consideration for the performance of the
Services, an amount not to exceed $173,900, as set forth in Exhibit "B".
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.
ARTICLE IV. NON - ARBITRATION
The City reserves the right to exercise any right or remedy available to it by law,
contract, equity, or otherwise, including without limitation, the right to seek any and all forms
of relief in a court of competent jurisdiction. Further, the City shall not be subject to any
arbitration process prior to exercising its unrestricted right to seek judicial remedy. The
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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 corporation 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 corporate power 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 City pursuant to this Agreement shall not contain any
proprietary material owned by any other 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. The Consultant shall be solely responsible for ensuring
that any materials provided by the Consultant pursuant to this Agreement satisfy this
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requirement and the Consultant agrees to indemnify and hold City harmless from all liability
or loss caused to City or to which City is exposed on account of the Consultant's failure to
perform this duty.
ARTICLE VI. SCOPE OF WORK
The Consultant shall accomplish the following: Professional Services related to the
Services, as provided in Exhibit "A", attached hereto and made a part hereof
ARTICLE VII. INDEPENDENT CONTRACTOR STATUS
The Consultant and the City 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 City 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 City, 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
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business in the state of Texas. The insurance companies must carry a Best's Rating of A-VII
or better. Except for Professional Liability, the policies will be written on an occurrence basis,
subject to the following minimum limits of liability:
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 City against losses caused by the professional negligence of the approved subcontractor or
sub -consultant. The City 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 City as evidence of coverage.
The Certificate shall provide 30 days' 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 punawt 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
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Compensation. In either event, the policy must be endorsed to include a waiver of subrogation
in favor of the City. 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 coverage) shall be no less than 10 years after the completion of
the Services provided for in this Agreement. The provisions of this Article VIH shall survive
the termination or expiration of this Agreement.
ARTICLE IX. EMPLOYMENT OF AGENTSIRETAINING 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 B, attached hereto, under this Agreement, provided that the City
approves the retaining of Sub- consultants. The Consultant is at all times responsible to the
City 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 City 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 City and
the City's business in strictest confidence and shall not reveal such information to third parties
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without prior written consent of the City, unless otherwise required by law
ARTICLE XL INDEMNITY
THE CONSULTANT SHALL INDEMNIFY AND SAVE HARMLESS THE CITY
OF LUBBOCK 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 LIMrr1 TG THE GENERALITY OF THE FOREGOING, ALL EXPENSES OF
LITIGATION, COURT COSTS, AND ATTORNEYS 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 ARISING OUT OF,
RELATED TO OR OCCASIONED 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 CITY OWNED PROPERTY. THE
INDEMNITY OBLIGATION PROVIDED HEREIN SHALL SURVIVE THE EXPIRATION
OR TERMINATION OF THIS AGREEMENT.
ARTICLE XQ. 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 3M. NOTICE
A. General. Whenever notice from the Consultant to the City or the City 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 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
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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:
RAYO Planning
Victoria Ferrell -Ortiz
515 Centre Street #5244
Dallas, TX 75208
Telephone: 214-773-1032
Email: vferrello _ yonlannincom
C. City's Address. The City's address and numbers for the purposes of notice are:
Wilson Bowling
City of Lubbock
P.O. Box 20001314
Avenue K
Lubbock, Texas 79457
Telephone: 806-775-3224
Email: wbowling@mylubbock.us
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. CITY -PROVIDED DATAAND RESPONSIBILITIES
Provision of Data. The City shall furnish the Consultant non -confidential studies,
reports and other available data in the possession of the City pertinent to the Consultant's
Services, so long as the City is entitled to rely on such studies, reports and other data for the
performance of the Consultant's Services under this Agreement (the "Provided Data'). The
Consultant shall be entitled to use and rely, so long as such reliance is reasonable, upon all
such Provided Data
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ARTICLE XV. NUSCELLANEOUS
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. Audit. The Consultant shall provide access to its corporate books and records to
the City. The City may audit, at its expense and during normal business hours, the
Consultant's books and records with respect to this Agreement between the Consultant and
the City.
C. 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
City and the Consultant, and in the case of the City, 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 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 RELAT NG 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,
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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, B, and C-CY
attached hereto, contains the entire agreement between the City and the Consultant, and there
are no other written or oral 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 City.
K Documents Owned by City. Any and all documents, drawings and specifications
prepared by Consultant as part of the Services hereunder, shall become the property of the
City 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.
L. Notice of Waiver. A waiver by either the City 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. Third Party Activities. Nothing in this Agreement shall be construed to provide
any rights or benefits whatsoever to any party other than the City and the Consultant.
N. Non -Appropriation. All fiords 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
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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"). 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, but failure to give such notice shall be of
no effect and the City shall not be obligated under this Agreement beyond the
Non -Appropriation Date.
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 lmown 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, a) This section applies only to a contract that: (1) is between a governmental entity and
a company with 10 or more full-time employees; and (2) has a value of $100,000 or more that
is to be paid wholly or partly from public fimds of the governmental entity. (b) A
governmental entity may not enter into a contract with a company for goods or services unless
the contract contains a written verification from the company that it (1) does not boycott
Israel; and (2) will not boycott Israel during the term of the contract.
Q. Texas Government Code 2274. By entering into this Agreement, Contractor
verifies that: (1) it does not, and will not for the duration of the contract, have a practice,
policy, guidance, or directive that discriminates against a firearm entity or firearm trade
association or (2) the verification required by Section 2274.002 of the Texas Government
Code does not apply to the contract. If Contractor is a company with 10 or more full-time
employees and if this Agreement has a value of at least $100,000 or more, Contractor verifies
that, pursuant to Texas Government Code Chapter 2274, it does not have a practice, policy,
guidance, or directive that discriminates against a firearm entity or firearm trade association;
and will not discriminate during the term of the contract against a firearm entity or firearm
trade association.
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R. Contractor represents and warrants that: (1) it does not, and will not for the
duration of the contract, boycott energy companies or (2) the verification required by Section
2274.002 of the Texas Government Code does not apply to the contract. If Contractor is a
company with 10 or more full-time employees and if this Agreement has a value of at least
$100,000 or more, Contractor verifies that, pursuant to Texas Government Code Chapter
2274, it does not boycott energy companies; and will not boycott energy companies during
the term of the Agreement. This verification is not required for an agreement where a
governmental entity determines that these requirements are inconsistent with the
governmental entity's constitutional or statutory duties related to the issuance, incurrence, or
management of debt obligations or the deposit, custody, management, borrowing, or
investment of fiords.
S. 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 relaxed 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 relaxed 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.
T. Professional Responsibility. All architectural or engineering services to be
performed shall be done with the professional skill and care ordinarily provided by competent
architects or engineers practicing under the same or similar circumstances and professional
license.
EXECUTED as of the Effective Date hereof.
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CITY OF LUBBOCK
APPROVED AS TO CONTENT:
Y*�r Sager, Director oranning
APPROVED AS TO FORM:
Kelli Leisure, Assistant City Attorney
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RAYO Planning
victoria Ferrell -Ortiz, Co -Founder