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HomeMy WebLinkAboutResolution - 2020-R0010 - CBD TIF And Overland Partners - 01/14/2020 Resolution No. 2020-R0010 Item No. 6.15 January 14, 2020 RESOLUTION WHEREAS, on December 3, 2001, the City Council of the City of Lubbock (the "City Council") authorized and established the Central Business District Tax Increment Financing Reinvestment Zone Board (the"TIF Board") for, among other things, to generate funds for Downtown Lubbock public improvements that benefit the City of Lubbock (the "City"); its residents, and property owners; and WHEREAS, at its meeting on June 24, 2019, the TIF Board unanimously approved an agreement between the Lubbock Central Business District Tax Increment Financing Reinvestment Zone (the "CBD TIF") and Overland Partners, Inc. of San Antonio, Texas ("Overland") for the provision of professional services related to an Updated Downtown Master Plan; and WHEREAS, the TIF Board shall consider a second professional services agreement with Overland for presentations of the proposed Updated Downtown Master Plan at its next regularly scheduled meeting on January 15, 2020;and NOW THEREFORE: BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the City Council hereby approves the professional services agreement by and between the CBD TIF and Overland, subject to the approval by the CBD TIF of said agreement at its January 15, 2020 meeting, attached to and incorporated within this Resolution. Pissed by the City Council on DANIEL. M. POPE, MAYOR ATTEST: ,-Q4 0 �X� )\il�— — Rebec Garza, City Secretary APPROVED AS TO CONTENT: r Brianna Gerardi, Business Development Director APPROVED AS TO FORM: Kt-Ili Leisure, Assistant City Attorney ccdocs/RES.Adoption Downtown Master Plan 2 12.30.19 Resolution No. 2020-R0010 PROFESSIONAL SERVICES AGREEMENT STATE OF TEXAS § COUNTY OF LUBBOCK § This Professional Service Agreement ("Agreement")Contract No. 15139 is entered into this Lill,J day of a"uf'j 2020, is by and between the Central Business District Tax Increment Finance Zone(the"CBD TIF"), and Overland Partners, Inc. (the"Consultant"). WITNESSETH WHEREAS,The CBD TIF desires to contract with the Consultant to provide professional services for the presentations of the proposed Downtown Lubbock Master Plan Update, (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 CBD TIF and the Consultant to be a fair and reasonable price; and WHEREAS,the CBD TIF 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 CBD TIF and the Consultant hereby agree as follows: ARTICLE I.TERM The term of this Agreement corrunences on the Effective Date and continues without interruption for a term of two (2) months. If the Consultant determines that additional time is required to complete the Services,the CBD TIF Business Development Director,may,but is not 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 CBD TIF acting through its governing body. Page 1 of 10 ARTICLE II. SERVICES AND COMPENSATION A. The Consultant shall conduct all activities, and within such timeframes, as set forth on Exhibit "A", attached hereto(the"Services and Fee Schedule"). B.The Consultant shall receive as consideration to be paid for the performance of the Services, in an amount not to exceed$12,000.00 in accordance with the Fee Schedule set forth in Exhibit"A". ARTICLE III.TERMINATION A. General. The CBD TIF 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 tenninated,the CBD TIF 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. Tennination and Remedies. In the event the Consultant breaches any term and/or provision of this Agreement, the CBD TIF shall be entitled to exercise any right or remedy available to it by this Agreement, at law, equity, or otherwise, including without limitation, tennination 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 CBD TIF 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 CBD TIF 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 corporation duly organized,validly existing,and in good standing under the laws of the State of Texas and is qualified to cavy 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. Page 2 of 10 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, riles, 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 CBD TIF 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,rile, 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 requirement and the Consultant agrees to indernnify and hold CBD TIF harmless from all liability or loss caused to CBD TIF or to which CBD TIF 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 CBD TIF agree that the Consultant shall perforin 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 CBD TIF within the meaning or the application of Page 3of10 any federal, state or local law or regulation, including without limitation, laws, toles 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 CBD TIF, 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-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: $1,000,000 Automobile Liability: Combined Single Limit for any auto: $1,000,000 Per Occurrence Employer's Liability: Per Occurrence Single Limit: $1,000,000 The Consultant shall further cause any approved subcontractor or sub-consultant to procure and carry, during the terin of this Agreement, the insurance coverage required of Consultant herein, including without limitation, Professional Liability coverage, protecting the CBD TIF against losses caused by the professional negligence of the approved subcontractor or sub-consultant. The CBD TIF shall be listed as a primary and noncontributory additional insured with respect to the Automobile Liability and Corrunercial Page 4 of 10 General Liability and shall be granted a waiver of subrogation under those policies. The Consultant shall provide a Certificate of Insurance to the CBD TIF 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 tenn 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 CBD TIF. If at any time during the life of the Agreement or any extension hereof,the Consultant fails to maintain the required insurance in frill 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 corrunencement 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 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, provided that the CBD TIF approves the retaining of Sub- consultants.The Consultant is at all times responsible to the CBD TIF 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 cant', for the protection and benefit of the CBD TIF 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. Page 5 of 10 ARTICLE X. CONFIDENTIALITY The Consultant shall retain all information received from or concerning the CBD TIF and the CBD TIF's business in strictest confidence and shall not reveal such information to third parties without prior written consent of the CBD TIF,unless otherwise required by law. ARTICLE XI. INDEMNITY THE CONSULTANT SHALL INDEMNIFY AND SAVE HARMLESS THE CBD TIF 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 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 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 CBD TIF OWNED PROPERTY. THE INDEMNITY OBLIGATION PROVIDED HEREIN SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT. 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 CBD TIF or the CBD TIF 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 shall be effective on the third business day after such notice is so deposited. Page 6 of 10 B. Consultant's Address. The Consultant's address and numbers for the purposes of notice are: Overland Partners, Inc. Attn: Rebecca Rathburn,VP Adinin 203 East Jones Ave., Suite 104 San Antonio,Texas 78215 Telephone: 210-829-7003 C. CBD TIF's Address. The CBD TIF's address and numbers for the purposes of notice are: Attn: CBD TIF c/o Brianna Gerardi CBD TIF of Lubbock P.O. Box 2000 1625 13th Street Lubbock,Texas 79457 Telephone: 806-775-2019 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.CSD TIF-PROVIDED DATA AND RESPONSIBILITIES Provision of Data. The CBD TIF shall furnish the Consultant non-confidential studies,reports and other available data in the possession of the CBD TIF pertinent to the Consultant's Services,so long as the CBD TIF 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. 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. Audit. The Consultant shall provide access to its corporate books and records to the CBD TIF. The CBD TIF 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 CBD TIF. Page 7of10 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 CBD TIF. E. Successor and Assigns.This Agreement binds and inures to the benefit of the CBD TIF and the Consultant, and in the case of the CBD TIF, 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 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 CBD TIF. I. Entire Agreement. This Agreement, including Exhibit "A" attached hereto, contains the entire agreement between the CBD TIF 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 CBD TIF. Page 8 of 10 K. Documents Owned by CBD TIF. Any and all documents, drawings and specifications prepared by Consultant as part of the Services hereunder, shall become the property of the CBD TIF when the Consultant has been compensated as set forth in Article II, above.The Consultant shall snake copies of any and all work products for its files. L. Notice of Waiver. A waiver by either the CBD TIF 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 CBD TIF and the Consultant. N.Non-Appropriation. All fiends for payment by the CBD TIF under this Agreement are subject to the availability of an annual appropriation for this purpose by the CBD TIF. In the event of non- appropriation of funds by the CBD TIF Council of the CBD TIF of Lubbock for the services provided under the Agreement, the CBD TIF will terininate 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"). 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 CBD TIF shall not be obligated under this Agreement beyond the Non-Appropriation Date. O. SB 252. SB 252 prohibits the CBD TIF 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 2270.002 of the Texas Government Code, Respondent certifies that either (i) it meets an exemption criteria under Section 2270.002;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. REMAINDER OF PAGE LEFT BLANK INTENTIONALLY Page 9 of 10 EXECUTED as of the Effective Date hereof. APPROVED AS TO CONT5NT: Robert Taylor, CBD TIF Chairman APPROVED AS TO FORM: K li Leisure,Assistant City Attorney Firm Overland Partners, Inc. 'D111, By: Rebecca Rathburn,VP Admin Page 10 of 10 EXHIBIT A OVERLAND January 6, 2019 Mr. Robert Taylor, Board Chairman Lubbock Central Business District Tax Increment Financing Reinvestment Zone ("CBD TIF") for the City of Lubbock c/o Ms. Brianna Gerardi Business Development Director, City of Lubbock 1625 13' Street Lubbock, TX 79401 RE: DOWNTOWN LUBBOCK MASTER PLAN UPDATE — PRESENTATION AND WORK SESSION Dear Brianna, Overland looks forward to continuing our work alongside you and the CBD TIF Board ("the Client") by participating in a presentation reviewing the final deliverable content of the Updated Downtown Master Plan ("the Master Plan") and a work session focused on preparing the Master Plan for approval by City Council in 2020. We are pleased to present this proposal for design services as outlined below. PROJECT DESCRIPTION: The Overland Team is finalizing the update to the Master Plan which includes proposed upgrades to utilities and utility infrastructure, parks and open space,streetscapes, and traffic circulation along with introducing strategies to support the revitalization of Downtown through new development, repurposing existing building stock, updating policy, and planning for parking management. This work is expected to be delivered by the end of the year. Following on the heels of that effort, we propose the following next steps: SCOPE, SCHEDULE, DELIVERABLES We propose two visits to Lubbock during the month of January that involve the review of the Master Plan with the following tasks, timeline, and deliverables: TRIP ONE: Presentation to the CBO TIF Board (assumes January 15, 2020) a. Tasks: i. Prepare Master Plan content for review (PDF slide presentation format and printed hard copy of drawings and deliverables as needed). ii. Facilitate a discussion with the CBD TIF Board regarding recommended edits/ changes/additions (if any) to be made to the Master Plan. iii. Prepare content for Trip Two. h. Deliverables: i. Revised slide presentation of the Master Plan Update (PDF format). . .I+. U�, , 71 •'ill Si,'v . :.:VIU. I% 7H"I.: 121[1.879 71103 1 WWW OVEHLANDPAR I NI RS COM OVERLAND TRIP TWO: Work Session with Mayor, City Council, City Manager (assumes January 28, 2020) c. Tasks: i. Prepare Master Plan content for review(PDF slide presentation format and printed hard copy of drawings and deliverables as needed). ii. Facilitate a discussion during a City Council work session regarding recommended edits/changes/additions (if any) to be made to the Master Plan. iii. Discuss next steps. d. Deliverables: i. Revised final version of the Master Plan Update (PDF format). FEE For this work, Overland proposes a fixed fee of $8,000, plus reimbursable expenses. Meetings pertaining to the scope of work described here are included. We anticipate that there will be questions that arise pertaining to the Master Plan as it advances into implementation and have included in this fee a budget of four hours of calls and/or emails to answer questions and/ or clarify information regarding the Master Plan deliverables. Any additional meetings or work needed related to this scope that is not described here will be mutually agreed upon prior to moving forward and will be billed on an hourly basis per attached hourly rates with a not to exceed amount of$12,000 for this scope. CONSULTANTS This proposal includes subconsultants for Parking and Historic Preservation. We propose the following subconsultants: • WGI (Parking) • Seventh Generation Design (Historic Preservation) Any additional consultants that may be required will be hired by mutual agreement between the Client and Overland, especially as it may impact the coordination of work pertaining to this scope. ASSUMPTIONS • This scope assumes a reasonable round of edits to be made (if any) following the presentation to the TIF Board and following the work session with City Council. • Any wholesale changes requested to be made to the content would warrant a discussion about how best to address prior to moving forward by mutual agreement between Overland and the Client under a separate contract. • This proposal scope and fees are based on adhering to the proposed schedule. Delays not caused by Overland may result in a reasonable adjustment of the fees. OVERLAND ADDITIONAL SERVICES Additional meetings, travel, or deliverables beyond this scope of work will be provided as an additional service on terms mutually agreed in writing. BILLING TERMS You will be invoiced monthly with payment due upon receipt. Overland Partners shall also be reimbursed for all direct out-of-pocket expenses as described in "Attachment A." If this proposal is acceptable to you, please sign and return a copy to our office.We look forward to working with you on this project. Yours truly, Becky Rathburn, VP Admin Attachments: Attachment "A"Architectural Fee Schedule Agreed: Robert lor, Bo ' �hairman Date Lubbock Central Business District Tax Increment Financing Reinvestment Zone OVERLAIN ® ATTACHMENT A ARCHITECTURAL FEE SCHEDULE Effective January 1, 2019 Senior Principal $350/Hr. Principal $265/Hr. Associate Principal $220/Hr. Senior Architect $180/Hr. Architect II $150/Hr. Architect I $125/Hr. Designer $95/Hr. Clerical $75/Hr. Student Intern $55/Hr. cmTsulta.ntfees, travel ,,.d m Ieage Fep;vgFaphiGs ph9t.,G.,pyi , Note: This fee schedule is subject to change on January 1 of each year, or upon notification from Overland Partners to the Client.