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CM-2019-0132 - 5/17/2019CITY OF ROUND ROCK AGREEMENT FOR PROFESSIONAL CONSULTING SERVICES RELATED TO ZONING AND LANDSCAPE INSPECTION SERVICES WITH BLAIR LANDSCAPE ARCHITECTURE LLC THE STATE OF TEXAS § § THE CITY OF ROUND ROCK § KNOW ALL BY THESE PRESENTS COUNTY OF WILLIAMSON § COUNTY OF TRAVIS § TFUS AGREEMENT for professional consulting services related to zoning and landscape inspection services (the "Agreement") is made by and between the CITY OF ROUND ROCK, a Texas home -rule municipal corporation with offices located at 221 East Main Street, Round Rock, Texas 78664-5299, (the "City") and, BLAIR LANDSCAPE ARCHITECTURE, LLC, located at 306 West Main Street, Suite 12, Round Rock. Texas 78664 (the "Consultant"). RECITALS: WHEREAS, City desires to contract for Consultant's professional services generally described as zoning and landscape inspection services (the -`Project"); and WHEREAS, City has determined that there is a need for the delineated services; and WHEREAS, desires to contract for such professional services; and WHEREAS, the parties desire to enter into this Agreement to set forth in writing their respective rights, duties and obligations hereunder. NOW, THEREFORE, WITNESSETH: That for and in consideration of the mutual promises contained herein and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is mutually agreed between the parties as follows: 1.01 EFFECTIVE DATE, DURATION, AND TERM This Agreement shall be effective on the date this Agreement has been signed by each party hereto, and shall remain in full force and effect unless and until it expires by operation of the term indicated herein, or is terminated or extended as provided herein. The term of this Agreement shall be for eighteen (18) months commencing March I, 2019 through September 30, 2020. City reserves the right to review the Agreement at any time, and may elect to terminate the Agreement with or without cause or may elect to continue. uo4228131ss2 2.01 PROPOSAL FOR SERVICES Consultant has issued its proposal for services for the tasks delineated therein, such proposal for services being appended to this Agreement as Exhibit "A" titled "Scope of Work," which document is attached hereto and incorporated herein by reference for all purposes. 3.01 SCOPE OF SERVICES Consultant shall satisfactorily provide all services described herein and as set forth in Exhibit "A." Consultant's undertaking shall be limited to performing services for City and/or advising City concerning those matters on which Consultant has been specifically engaged. Consultant shall perform services in accordance with this Agreement, in accordance with the appended proposal for services, and in accordance with due care and prevailing consulting industry standards for comparable services. 4.01 LIMITATION TO SCOPE OF SERVICES Consultant and City agree that the scope of services to be performed is enumerated in Exhibit "A" and herein, and may not be changed without the express written agreement of the parties. Notwithstanding anything herein to the contrary, the parties agree that City retains absolute discretion and authority for all funding decisions, such to be based solely on criteria accepted by City which may be influenced by but not be dependent on Consultant's work. 5.01 CONTRACT AMOUNT In consideration for the professional consulting services to be performed by Consultant, City agrees to pay Consultant an amount not exceed Seventeen Thousand One Hundred Fifteen and No/100 Dollars ($17,115.00) for services set forth in the attached Exhibit "A" at the hourly rates set forth in the attached Exhibit "B," incorporated herein by reference for all purposes. 6.01 INVOICE REQUIREMENTS; TERMS OF PAYMENT Invoices: To receive payment, Consultant shall prepare and submit detailed invoices to the City, in accordance with the delineation contained herein, for services rendered. Such invoices for professional services shall track the referenced Scope of Work, and shall detail the services performed, along with documentation for each service performed. Payment to Consultant shall be made on the basis of the invoices submitted by Consultant and approved by the City. Such invoices shall conform to the schedule of services and costs in connection therewith. Should additional backup material be requested by the City relative to service deliverables, Consultant shall comply promptly. In this regard, should the City determine it necessary, Consultant shall make all records and books relating to this Agreement available to the City for inspection and auditing purposes. 2 Payment of Invoices: The City reserves the right to correct any error that may be discovered in any invoice that may have been paid to Consultant and to adjust same to meet the requirements of this Agreement. Following approval of an invoice, the City shall endeavor to pay Consultant promptly, but no later than the time period required under the Texas Prompt Payment Act described in Section 7.01 herein. Under no circumstances shall Consultant be entitled to receive interest on payments which are late because of a good faith dispute between Consultant and the City or because of amounts which the City has a right to withhold under this Agreement or state law The City shall be responsible for any sales, gross receipts or similar taxes applicable to the services, but not for taxes based upon Consultant's net income. 7.01 PROMPT PAYMENT POLICY In accordance with Chapter 2251, V.T.C.A., Texas Government Code, any payment to be made by the City to Consultant will be made within thirty (30) days of the date the City receives goods under this Agreement, the date the performance of the services under this Agreement are completed, or the date the City receives a correct invoice for the goods or services, whichever is later. Consultant may charge interest on an overdue payment at the "rate in effect" on September I of the fiscal year in which the payment becomes overdue, in accordance with V.T.C.A., Texas Government Code, Section 2251.025(b). This Prompt Payment Policy does not apply to payments made by the City in the event: (a) There is a bona fide dispute between the City and Consultant, a contractor, subcontractor, or supplier about the goods delivered or the service performed that cause the payment to be late; or (b) There is a bona fide dispute between Consultant and a subcontractor or between a subcontractor and its supplier about the goods delivered or the service performed that causes the payment to be late; or {c) The terms of a federal contract, grant, regulation, or statute prevent the City from making a timely payment with federal funds; or (d) The invoice is not mailed to the City in strict accordance with any instruction on the purchase order relating to the payment. 8.01 NON -APPROPRIATION AND FISCAL FUNDING This Agreement is a commitment of the City's current revenues only. It is understood and agreed that the City shall have the right to terminate this Agreement at the end of any City fiscal year if the governing body of the City does not appropriate funds sufficient to purchase the services as determined by the City's budget for the fiscal year in question. The City may affect such termination by giving Consultant a written notice of termination at the end of its then - current fiscal year. 9.01 SUPPLEMENTAL AGREEMENT The terms of this Agreement may be modified by written Supplemental Agreement hereto, duly authorized by City Council or by the City Manager, if the City determines that there has been a significant change in (1) the scope, complexity, or character of the services to be performed; or (2) the duration of the work. Any such Supplemental Agreement must be executed by both parties within the period specified as the term of this Agreement. Consultant shall not perform any work or incur any additional costs prior to the execution, by both parties, of such Supplemental Agreement. Consultant shall make no claim for extra work done or materials furnished unless and until there is full execution of any Supplemental Agreement, and the City shall not be responsible for actions by Consultant nor for any costs incurred by Consultant relating to additional work not directly authorized by Supplemental Agreement. I0.01 TERMINATION; DEFAULT Termination: It is agreed and understood by Consultant that the City may terminate this Agreement for the convenience of the City, upon thirty (30) days' written notice to Consultant, with the understanding that immediately upon receipt of said notice all work being performed under this Agreement shall cease. Consultant shall invoice the City for work satisfactorily completed and shall be compensated in accordance with the terms hereof for work accomplished prior to the receipt of said notice of termination. Consultant shall not be entitled to any lost or anticipated profits for work terminated under this Agreement. Unless otherwise specified in this Agreement, all data, information, and work product related to this project shall become the property of the City upon termination of this Agreement, and shall be promptly delivered to the City in a reasonably organized form without restriction on future use. Should the City subsequently contract with a new consultant for continuation of service on the project, Consultant shall cooperate in providing information. Termination of this Agreement shall extinguish all rights, duties, and obligations of the City and the terminated party to fulfill contractual obligations. Termination under this section shall not relieve the terminated party of any obligations or liabilities which occurred prior to termination. Nothing contained in this section shall require the City to pay for any work which it deems unsatisfactory or which is not performed in compliance with the terms of this Agreement. Default: Either party may terminate this Agreement, in whole or in part, for default if the Party provides the other Party with written notice of such default and the other fails to satisfactorily cure such default within ten (10) business days of receipt of such notice (or a greater time if agreed upon between the Parties). If default results in termination of this Agreement, then the City shall give consideration to the actual costs incurred by Consultant in performing the work to the date of default. The cost of the work that is useable to the City, the cost to the City of employing another firm to complete 4 the useable work, and other factors will affect the value to the City of the work performed at the time of default. Neither party shall be entitled to any lost or anticipated profits for work terminated for default hereunder. The termination of this Agreement for default shall extinguish all rights, duties, and obligations of the terminating Party and the terminated Party to fulfill contractual obligations. Termination under this section shall not relieve the terminated party of any obligations or liabilities which occurred prior to termination. Nothing contained in this section shall require the City to pay for any work which it deems unsatisfactory, or which is not performed in compliance with the terms of this Agreement. 11.01 NON -SOLICITATION Except as may be otherwise agreed in writing, during the term of this Agreement and for twelve (12) months thereafter, neither the City nor Consultant shall offer employment to or shall employ any person employed then or within the preceding twelve (12) months by the other or any affiliate of the other if such person was involved, directly or indirectly, in the performance of this Agreement. This provision shall not prohibit the hiring of any person who was solicited solely through a newspaper advertisement or other general solicitation. 12.01 INSURANCE Consultant shall meet all requirements as set forth at: littp://www.roundrocktexas.�, ..ov/w-content/u loads/2414/1?/corr insurance 07.20112. df 13.01 CITY'S RESPONSIBILITIES Full information: The City shall provide full information regarding project requirements. The City shall have the responsibility of providing Consultant with such documentation and information as is reasonably required to enable Consultant to provide the services called for. The City shall require its employees and any third parties who are otherwise assisting, advising or representing the City to cooperate on a timely basis with Consultant in the provision of its services. Consultant may rely upon written information provided by the City and its employees and agents as accurate and complete. Consultant may rely upon any written directives provided by the City or its designated representative concerning provision of services as accurate and complete. Required materials: Consultant's performance requires receipt of all requested information reasonably necessary to provision of services. Consultant agrees, in a timely manner, to provide City with a comprehensive and detailed information request list, if any. 5 14.01 INDEPENDENT CONTRACTOR STATUS Consultant is an independent contractor, and is not the City's employee. Consultant's employees or subcontractors are not the City's employees. This Agreement does not create a partnership, employer-employee, or joint venture relationship. No party has authority to enter into contracts as agent for the other party. Consultant and the City agree to the following rights consistent with an independent contractor relationship.. (1) Consultant has the right to perform services for others during the term hereof (2) Consultant has the sole right to control and direct the means, manner and method by which it performs its services required by this Agreement. (3) Consultant has the right to hire assistants as subcontractors, or to use employees to provide the services required by this Agreement. (4) Consultant or its employees or subcontractors shall perform services required hereunder, and the City shall not hire, supervise, or pay assistants to help Consultant. (5) Neither Consultant nor its employees or subcontractors shall receive training from the City in skills necessary to perform services required by this Agreement. (C) City shall not require Consultant or its employees or subcontractors to devote full time to performing the services required by this Agreement. (7) Neither Consultant nor its employees or subcontractors are eligible to participate in any employee pension, health, vacation pay, sick pay, or other fringe benefit plan of the City. 15.01 CONFIDENTIALITY; MATERIALS OWNERSHIP Any and all programs, data, or other materials furnished by the City for use by Consultant in connection with services to be performed under this Agreement, and any and all data and information gathered by Consultant, shall be held in confidence by Consultant as set forth hereunder. Each party agrees to take reasonable measures to preserve the confidentiality of any proprietary or confidential information relative to this Agreement, and to not make any use thereof other than for the performance of this Agreement, provided that no claim may be made for any failure to protect information that occurs more than three (3) years after the end of this Agreement. The parties recognize and understand that the City is subject to the Texas Public Information Act and its duties run in accordance therewith. 6 All data relating specifically to the City's business and any other information which reasonably should be understood to be confidential to City is confidential information of City. Consultant's proprietary software, tools, methodologies, techniques, ideas, discoveries, inventions, know-how, and any other information which reasonably should be understood to be confidential to Consultant is confidential information of Consultant. The City's confidential information and Consultant's confidential information is collectively referred to as "Confidential Information." Each party shall use Confidential Information of the other party only in furtherance of the purposes of this Agreement and shall not disclose such Confidential Information to any third party without the other parry's prior written consent, which consent shall not be unreasonably withheld. Each party agrees to take reasonable measures to protect the confidentiality of the other party's Confidential Information and to advise their employees of the confidential nature of the Confidential Information and of the prohibitions herein. Notwithstanding anything to the contrary contained herein, neither party shall be obligated to treat as confidential any information disclosed by the other party (the "Disclosing Party") which: (l) is rightfully known to the recipient prior to its disclosure by the Disclosing Party; (2) is released by the Disclosing Party to any other person or entity (including governmental agencies) without restriction; (3) is independently developed by the recipient without any reliance on Confidential Information; or (4) is or later becomes publicly available without violation of this Agreement or may be lawfully obtained by a party from any non-party. Notwithstanding the foregoing, either party will be entitled to disclose Confidential Information of the other to a third party as may be required by law, statute, rule or regulation, including subpoena or other similar form of process, provided that (without breaching any legal or regulatory requirement) the party to whom the request is made provides the other with prompt written notice and allows the other parry to seek a restraining order or other appropriate relief. Subject to Consultant's confidentiality obligations under this Agreement, nothing herein shall preclude or limit Consultant from providing similar services for other clients. Notwithstanding the foregoing, either party will be entitled to disclose Confidential Information of the other to a third party as may be required by law, statute, rule or regulation, including subpoena or other similar form of process, provided that (without breaching any legal or regulatory requirement) the party to whom the request is made provides the other with prompt written notice and allows the other party to seek a restraining order or other appropriate relief. Subject to Consultant's confidentiality obligations under this Agreement, nothing herein shall preclude or limit Consultant from providing similar services for other clients. Neither the City nor Consultant will be liable to the other for inadvertent or accidental disclosure of Confidential Information if the disclosure occurs notwithstanding the party's exercise of the same level of protection and care that such party customarily uses in safeguarding its own proprietary and confidential information. Notwithstanding anything to the contrary in this Agreement, the City will own as its sole property all written materials created, developed, gathered, or originally prepared expressly for the City and delivered to the City under the terms of this Agreement (the "Deliverables"); and Consultant shall own any general skills, know-how, expertise, ideas, concepts, methods, ri techniques, processes, software, or other similar information which may have been discovered, created, developed or derived by Consultant either prior to or as a result of its provision of services under this Agreement (other than Deliverables). Consultant's working papers and ConsuItant`s Confidential Information (as described herein) shall belong exclusively to the Consultant. City shall have a non-exclusive, non -transferable license to use Consultant's Confidential Information for City's own internal use and only for the purposes for which they are delivered to the extent that they form part of the Deliverables. 16.01 WARRANTIES Consultant represents that all services performed hereunder shall be performed consistent with generally prevailing professional or industry standards, and shall be performed in a professional and workmanlike manner_ Consultant shall re -perform any work no in compliance with this representation. I7.01 LIMITATION OF LIABILITY Should any of Consultant's services not conform to the requirements of the City or of this Agreement, then and in that event the City shall give written notification to Consultant; thereafter, (a) Consultant shall either promptly re -perform such services to the City's satisfaction at no additional charge, or (b) if such deficient services cannot be cured within the cure period set forth herein, then this Agreement may be terminated for default. In no event will Consultant be Iiable for any loss, damage, cost or expense attributable to negligence, willful misconduct or misrepresentations by the City, its directors, employees or agents. In no event shall Consultant be liable to the City, by reason of any act or omission relating to the services provided under this Agreement (including the negligence of Consultant), whether a claim be in tort, contract or otherwise, (a) for any consequential, indirect, lost profit, punitive, special or similar damages relating to or arising from the services, or (b) in any event, in the aggregate, for any amount in excess of the total professional fees paid by the City to Consultant under this Agreement, except to the extent determined to have resulted from Consultant's gross negligence, willful misconduct or fraudulent acts relating to the service provided hereunder. 18.01 INDEMNIFICATION Consultant and the City each agree to indemnify, defend and hold harmless the other from and against amounts payable under any judgment, verdict, court order or settlement for death or bodily injury or the damage to or loss or destruction of any real or tangible property to the extent arising out of the indemnitor's negligence in the performance of this Agreement. Consultant agrees to indemnify, defend and hold harmless the City from and against any and all amounts payable under any judgment, verdict, court order or settlement for Third Party 8 claims of infringement of any trade secrets, copyrights, trademarks or trade names alleged to have occurred and arising from the deliverables provided by Consultant to the City in connection with the performance of this Agreement. Should the City's use of such deliverables be determined to have infringed, Consultant may, at its option: (i) procure for the City the right to continue using such deliverables provided or (ii) replace or modify them to make their use non - infringing while yielding substantially equivalent results. If neither of the above options is or would be available on a basis that is commercially reasonable, then Consultant may terminate this Agreement, the City shall return such deliverables provided, and Consultant will refund to the City the fees paid for the deliverables provided. This infringement indemnity does not cover claims arising from the combination of such deliverables with products or services not provided by Consultant; the modification of such deliverables by any person other than Consultant; deliverables complying with or based. upon (1) designs provided by or at the direction of the City or (2) specifications or other information provided by or at the direction of the City, or use of systems, materials or work performed in a manner not permitted hereunder or by another obligation of the City to Consultant. The indemnities in this section are contingent upon: (1) the indemnified party promptly notifying the indemnifying party in writing of any claim which gives rise to a claim for indemnification hereunder; (2) the indemnifying party being allowed to participate in the defense and settlement of such claim; and (3) the indemnified party cooperating with all reasonable requests of the indemnifying party (at the indemnifying party's expense) in defending or settling a claim. The indemnified party shall have the right, at its option and expense, to participate in the defense of any suit or proceeding through counsel. 19.01 ASSIGNMENT AND DELEGATION The parties each hereby bind themselves, their successors, assigns and legal representatives to each other with respect to the terms of this Agreement. Neither party may assign any rights or delegate any duties under this Agreement without the other party's prior written approval, which approval shall not be unreasonably withheld. 20.01 LOCAL, STATE AND FEDERAL TAXES Consultant shall pay all income taxes, and FICA (Social Security and Medicare taxes) incurred while performing services under this Agreement. The City will not do the following: (l) Withhold FICA from Consultant's payments or make FICA payments on its behalf, (2) Make state and/or federal unemployment compensation contributions on Consultant's behalf; or (3) Withhold state or federal income tax from any of Consultant's payments. If requested, the City shall provide Consultant with a certificate from the Texas State Comptroller indicating that the City is a non-profit corporation and not subject to State of Texas Sales and Use Tax. 9 21.01 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES A. Consultant, its consultants, agents, employees and subcontractors shall use best efforts to comply with all applicable federal and state laws, the Charter and Ordinances of the City of Round Rock, as amended, and with all applicable rules and regulations promulgated by local, state and national boards, bureaus and agencies. Consultant shall further obtain all permits, licenses, trademarks, or copyrights required in the performance of the services contracted for herein, and same shall belong solely to the City at the expiration of the term of this Agreement. B. In accordance with Chapter 2270, Texas Government Code, a governmental entity may not enter into a contract with a company for goods and services unless the contract contains written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of this contract. The signatory executing this Agreement on behalf of Consultant verifies Consultant does not boycott Israel and will not boycott Israel at any term of this Agreement. 22.01 FINANCIAL INTEREST PROHIBITED Consultant covenants and represents that Consultant, its officers, employees, agents, consultants and subcontractors will have no financial interest, direct or indirect, in the purchase or sale of any product, materials or equipment that will be recommended or required hereunder. 23.01 DESIGNATION OF REPRESENTATIVE The City hereby designates the following representative authorized to act in its behalf with regard to this Agreement: David Bost, Senior PIanner Planning and Development Services 301 W. Bagdad Avenue, Suite 210 Round Rock, TX 78664 (512) 341-3175 24.01 NOTICES All notices and other communications in connection with this Agreement shall be in writing and shall be considered given as follows: (1) When delivered personally to recipient's address as stated herein; or (2) Three (3) days after being deposited in the United States mail, with postage prepaid to the recipient's address as stated in this Agreement. Notice to Consultant; Blair Landscape Architecture, LLC 306 West Main Street, Suite 12 Round Rock, TX 78664 Notice to City: City Manager, City of Round Rock 221 East Main Street Round Rock, TX 78664 AND TO: Stephan L. Sheets, City Attorney 309 East Main Street Round Rock, TX 78664 Nothing contained in this section shall be construed to restrict the transmission of routine communications between representatives of the City and Consultant. 25.01 APPLICABLE LAW; ENFORCEMENT AND VENUE This Agreement shall be enforceable in Round Rock, Texas, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall be governed by and construed in accordance with the laws and court decisions of Texas. 26.01 EXCLUSIVE AGREEMENT The terms and conditions of this Agreement, including exhibits, constitute the entire agreement between the parties and supersede all previous communications, representations, and agreements, either written or oral, with respect to the subject matter hereof. The parties expressly agree that, in the event of any conflict between the terms of this Agreement and any other writing, this Agreement shall prevail. No modifications of this Agreement will be binding on any of the parties unless acknowledged in writing by the duly authorized governing body or representative for each party. 27.01 DISPUTE RESOLUTION The City and Consultant hereby expressly agree that no claims or disputes between the parties arising out of or relating to this Agreement or a breach thereof shall be decided by any arbitration proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9 USC Section 1-14) or any applicable state arbitration statute. 28.01 SEVERABILITY The invalidity, illegality, or unenforceability of any provision of this Agreement or the occurrence of any event rendering any portion of provision of this Agreement void shall in no way affect the validity or enforceability of any other portion or provision of this Agreement. Any void provision shall be deemed severed from this Agreement, and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain the particular portion of provision held to be void. The parties further agree to amend this Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this Article shall not prevent this entire Agreement from being void should a provision which is of the essence of this Agreement be determined void. 29.01 STANDARD OF CARE Consultant represents that it is specially trained, experienced and competent to perform all of the services, responsibilities and duties specified herein and that such services, responsibilities and duties shall be performed, whether by Consultant or designated subconsultants, in a manner acceptable to the City and according to generally accepted business practices. 30.01 GRATUITIES AND BRIBES City, may by written notice to Consultant, cancel this Agreement without incurring any liability to Consultant if it is determined by City that gratuities or bribes in the form of entertainment, gifts, or otherwise were offered or given by Consultant or its agents or representatives to any City Officer, employee or elected representative with respect to the performance of this Agreement. In addition, Consultant may be subject to penalties stated in Title S of the Texas Penal Code. 31.01 RIGHT TO ASSURANCE Whenever either party to this Agreement, in good faith, has reason to question the other party's intent to perform hereunder, then demand may be made to the other party for written assurance of the intent to perform. In the event that no written assurance is given within the reasonable time specified when demand is made, then and in that event the demanding party may treat such failure an anticipatory repudiation of this Agreement. 32.01 MISCELLANEOUS PROVISIONS Time is of the Essence. Consultant agrees that time is of the essence and that any failure of Consultant to complete the services for each phase of this Agreement within the agreed project schedule may constitute a material breach of this Agreement. Consultant shall be fully responsible for its delays or for failures to use reasonable efforts in accordance with the terms of this Agreement. Where damage is caused to City due to Consultant's failure to perform in these circumstances, City may withhold, to the extent of such damage, Consultant's payments 12 hereunder without a waiver of any of City's additional legal rights or remedies. City shall render decisions pertaining to Consultant's work promptly to avoid unreasonable delays in the orderly progress of Consultant's work Force Majeure. Notwithstanding any other provisions hereof to the contrary, no failure, delay or default in performance of any obligation hereunder shall constitute an event of default or breach of this Agreement, only to the extent that such failure to perform, delay or default arises out of causes beyond control and without the fault or negligence of the party otherwise chargeable with failure, delay or default; including but not limited to acts of God, acts of public enemy, civil war. insurrection, riots, fires, floods, explosion., theft, earthquakes, natural disasters or other casualties, strikes or other labor troubles, which in any way restrict the performance under this Agreement by the parties. Section Numbers. The section numbers and headings contained herein are provided for convenience only and shall have no substantive effect on construction of this Agreement. Waiver. No delay or omission by either party in exercising any right or power shall impair such right or power or be construed to be a waiver, A waiver by either party of any of the covenants to be performed by the other or any breach thereof shall not be construed to be a waiver of any succeeding breach or of any other covenant. No waiver of discharge shall be valid unless in writing and signed by an authorized representative of the party against whom such waiver or discharge is sought to be enforced. Multiple Counterparts. This Agreement may be executed in multiple counterparts, which taken together shall be considered one original. The City agrees to provide Consultant with one fully executed original. [Signatures on the following page.] 13 CN WITNESS WHEREOF, the parties have executed this Agreement on the dates hereafter indicated. City of Ro nd Rock, Texas By. Printed Name: Title: r.44V Date Signed: -- �� For City, Attest: By & '&—, lwf-4� ��Ftd�� For City, Approved as to Form: B . D Stephan L. Sheets, City Attorney Blair Landscape Architecture, LLC By: r Printed Name:! Title:, Date Signed: Exhibit "A" Blair Landscape Architecture, LLC Contract Landscape Services Scope of Services The following professional services are included within the "Scope of Services" to be provided under the attached Contract for Professional Consulting Services. Tree Protection Fencing Inspection General Description: The developer or contractor representative is required to have the location and quality of tree protection fencing inspected and approved prior to beginning construction or delivery of materials to the site. David Bost (dbost@roundrocktexas.gov) at Planning Development Services (PDS) will be notified that the required tree protection fencing has been installed. To initiate the inspection process: 1. Upon receiving the inspection request from the project representative, David will contact the selected inspector to schedule the fencing inspection; 2. Upon agreement of the inspector to perform the inspection, David will forward a digital file containing the tree protection plan(s) and contact information for the project representative in order to coordinate schedules so that the project representative can join in the inspection and note any deficiencies; 3. If deficiencies are noted, the inspector will determine if a reinspection is required or whether photographic evidence of corrections provided by the contractor will be sufficient; 4. The inspector will provide email status report(s) to David Bost after the inspection(s); 5. David Bost will email the project representative, the project civil engineer, the City of Round Rock civil inspector and the City's engineering reviewer for the project when the fencing has been approved. Landscape Installation Final Inspection General Description: Prior to receiving a Certificate of Occupancy or its equivalent, a project representative (the owner or his contractor) is required to have a final inspection of the installed landscape for the project to ensure that the landscaping was installed per the approved plans and specifications for the project. The Project Representative: The project representative and/or his consultants or contractors are required to perform the following steps to initiate the final inspection process: 1. Upon request of the project representative, the project's landscape architect must inspect the installed landscaping; 2. The landscape architect creates a punchlist of any deficiencies noted during the inspection and distributes the punchlist to the landscape contractor and/or other contractor who is responsible fora noted deficiency; 3. Deficiencies are corrected, and the landscape architect is notified that corrections have been completed; 4. The landscape architect reinspects the project and approves the corrections. S. The landscape architect writes a Letter of Concurrence Mthat the project is installed per the approved plan and emails theletter to David BostatPlanning Development Services (P DS). Exhibit "A" The City (Planning Development Services): 1. Upon receipt of the landscape architect's Letter of Concurrence, PDS staff will initiate the City's landscape final inspection process. 2. PDSwill select which Professional Services Consultant (the Consultant) will providethe inspection services for the project. If the selected Consultant cannot provide inspection services within the necessary timeframe (typically within 1 to 3 business days after receipt of the LOC), PDSwill select an alternate Consultant. 3. PDS will compile and send an email to the selected Consultant requesting the inspection services including the agreed inspection date and time and provide contact infiormation for an on-site contact person (if needed). Email attachments will include digital copies of the relevant plan sheets and the landscape inspection checklist (if needed). 4. The Consultant il responsible for coordinating the inspection time and date with the project representative if/as needed. (PDS's policy is that any Project Representative is welcome to attend the inspection however, no one is required to attend.) The Professional Services Consultant 1. After receipt of the email requesting inspection services, the Consultant will inspect the site at the appointed time, using the Landscape Final Inspection Comments checklist (see example attached as Exhibit 1) provided by PDS as an aid in identifying and documenting deficiencies and redline relevant comment locations on the relevant sheets. Pictures may be taken as needed to support or clarify the Consultant's comments. 2. The Consultant will email copies of the final inspection comments, the redlined plan sheet(s) and any relevant pictures to PDS. PDS will re�kw the irspecfion axnmensand attach the comments and redlined plans into Trakit and log the status of the inspection. PDS will forward the inspection report to the appropriate project representative / contractor and to the project landscape architect. 3. After the Landscape Contractor or Project Representative notifies PDS that the deficiencies are corrected, PDS will contactthe Consultantto reinspectthe corrections. After reinspection bythe Consultant, the Consultant will notify PDS regarding approval of the corrections or of any deficiencies remaining. The Project Close-out Process: 1. After receiving notification of the project landscape approval from the Consultant, PDS will log the approval and any relevant documents into Trakit, then notify the PDS Development Services Close-out Administrator regarding the approval of the landscaping. Invoicing/ Accounting: The Round Rock City Council has approved and established a budget line item containing funding for the Contracted Landscape Inspection services described herein. There are certain financial / accounting criteria and spending limitations placed on these funds based on their use in compensating for Professional Services. Certain limitations and responsibilities will include: 1. The Professional Services are to be billed in the manner set forth in the attached Contract for Professional Services. 2. The Consultantwill attach a memo withtheir punchlist submittal identifyingthe Consultant staff who performed the inspection, the billable hoursand the associated hourlyrate. 3. The Consultant will submit a monthly invoice to PDS prior to the tenth (10`x') of the month for contracted services provided during the previous month. 4. PDS wil I evaluate and a pprovethe invoiceand forward it to the Finance Department for payment. 5. PDS will create and maintain a spreadsheet of compensation provided to each Consultant during the current City of Round Rock fiscal year. Exhibit "A" Division of Services/ Consultant Selection for a Project: It will be PDS's responsibility to selectwhich Con sultantwill provide inspection servicesfora given project. Selection criteria will include the following: 1. A Consultant cannot provide inspection services for a project which he/she or his/her firm has designed or been associated with. If, unbeknown to PDS, the Consultant has any conflict of interest in inspecting a particular project, the Consultant must recuse himself/herself immediatelywhen contacted by PDStodothe inspection. 2. PDSwill be responsible for: a. Selecting a Consultant who has no conflict of interest regarding inspection of a particular project; b. Assigning the inspections proportionally (approximately) between the Professional Services firms associated with this agreement; c. Ensuring that no individual Professional Services firm is compensated for more than their contracted Not to Exceed (NTE) amount and in no case for more than Fifty Thousand Dollars, in total, duringa City of Round Rock fiscal year. The Responsibilities of PDS With Respect to the Consultant: PDS will provide the following to the Consultant as needed or requested by the Consultant. 1. Tools needed to perform the inspection(s), including a tree caliper, measuring tape and other tools to be determined. 2. An initial orientation / training session held at the PDS office to explain the services and products to be provided and theexpected outcomesfrom the services. 3. PDS will accompany each Consultant on their first inspection to provide clarity regarding inspection methods and expectations. 4. PDS will accompany each Consultant on one additional inspection if PDS or the Consultant determine that additional clarity is needed or if the inspection is expected to be particularly complex. 5. PDS will review the Consultant's punchlist comments and redline package prior to distribution to the project representatives. The Responsibilities of the Consultant: The Consultant will provide the following - 1 . ollowing:1. An individual or individuals with a sufficient level of experience and expertise to provide the quality of inspection services equal to those currently provided; 2. If a landscape architectural firm is making more than one individual available for inspection services, the firm shall name one individual as the single point of contact for PDS to coordinate with regardingthe Consultant selection process asoutlined above. 3. Inspection services as described above; 4. Punchlist comments which clearly describe the deficiencies observed during the inspection; 5. Additional documentation including redlined plans and photos as needed to clarify and/or support the punchlist comments. 6. Punchlist submittal documentation with a cover letter which includes the landscape architect's seal. 7. Agreement to perform the on-site inspection within Ito 3 business days of being contacted by PDS or to immediately inform PDS if unable to meet that required schedule due to the firm's workload orotherfactors. Exhibit "A`t Landscape Final Inspection Comments Revised: February 15, 2018 Project Name: Date: Site: 1. _ Signage — location, size, materials. 2. _ Site lighting —correct location, height, mounting, fixture. 3. - Site lighting— ensure that light poles meet or exceed the required separation from required tree locations. 4. —__-Parking spaces— layout and quantity. 5. _ Stacking spaces & drop off areas. Landscape ed in — 6. Install edging where required. 7. Ensure that the top of edging is flush with or below adjacent sidewalks and curbs so that there are no sharp corners exposed. 8. _ Ensure that the tops of edging at joints are flush with each other so that there are no sharp corners exposed. 9. Ensure that the tops of stakes are flush with or below top of edging. Plant materials 10. Ensure plant materials are of a good quality. Poor quality, dead, dying or damaged materials must be replaced. 11. _ Ensure all vinyl tape, twine and tags are removed from plant material. 12. _Ensure the appropriate sizes of plant materials are utilized. Ensure that there is a minimum of 3" tree caliper for all large species shade trees. 13. Planting depth—top of root ball V-2" above finished grade 14. _'free staking— minimum 3 stakes per tree evenly space around the tree. Make ties snug but not so tight as to girdle the trunk- A plastic chain lock or 10 -gauge wire, cushioned with a rubber hose around the trunk may be used as tree ties. frees larger than 4 caliper inches shall require a minimum of 3 guy wires anchored into the ground. 15. Only containergrown trees shall be planted from April I"—September 30". From October 1st — March 31", container grown or balled and bur -lapped may be planted. Staff strongly recommends the use of container grown trees year around. 16. i Limb removal: Remove torn, damaged, and dead branches; rubbing branches; and sprouts and suckers Screening 17. Ensue required ground -mounted equipment screening is provided (2 Irg. Shrub every 4 linear feet). 18. Ensure that water quality pond and detention pond screening is provided. 19. _ Dumpster & trash receptacle screening— minimum 6' height decorative masonry wall on 3 sides with opaque gate. 20. _ Outdoor storage screening— wall & landscaping. 21, r Loading areas — masonry wall & landscaping. Exhibit "A" Irrigation 22. Provide a minimum of 1 flood bubbler per shade & ornamental tree 23. _Provide two bubblers for trees 4 inches or larger 24. _Ensure that the flood bubbler is a minimum of 12" from trunk, staked in place 25. _Make all flood bubblers visible for inspection. 26. _Stake drip tubing in place and cover with mulch / soil so that it is not visible Mulch 27. _Ensure that all mulch has a minimum 3" depth and there are no bare spots. 28. _Pull back the mulch / soil at least 6" from the trunk; ensure that the root flare is visible. Revegetation 29. _ Revegetation must be a permanent grass variety, cover 95% of all disturbed area and be a minimum of 1" in height. Contact David Bost (512-341-3175) (dbost@roundrocktexas.govwhen all punchlist items are corrected. EXHIBIT "B" Consultant's Hourly Rate Schedule : Senior Landscape Architect - $155,00:` hour I .andscape Architect - $100..00,' hour City of Round Rock RQUNQROCIC Agenda Item Summary TSCA',, Agenda Number: Title: Consider executing a Professional Consulting Services Agreement with Blair Landscape Architecture, LLC for Zoning and Landscaping Observation Services. Type: City Manager Item Governing Body: City Manager Approval Agenda Date: 5/17/2019 Dept Director: Brad Wiseman, Planning and Development Services Director Cost: $17,115.00 Indexes: Attachments: Agreement Blair Landscape Architecture, LLC Department: Planninq and Development Services Department Text of Legislative File CM -2019-0132 The Planning and Development Services Department has identified three Professional Consulting firms with the necessary qualifications to provide such services. Each of these Consultants will participate, on a staff -determined and rotating basis, in the provision of Inspection Services on land development projects with which they were not involved in the design or installation of ordinance -required landscaping. That is, if one Consultant provided a project's landscape design and/or installation, another Consultant would be selected to inspect the project. The contract period is for eighteen (18) months commencing March 1, 2019 through September 30, 2020. It is unknown how quickly any one Consultant may exhaust their proportionate share of the Council -designated funds, but it is anticipated the contract amount will be exhausted prior to the end of the contract period. Attached is an eighteen (18) month contract with Blair Landscape Architecture, LLC in an amount not to exceed $17,115.00 Cost: $17,115.00 Source of Funds: General Fund City of Round Rock Page 1 Pdnted on 5/ia/2019