CM-2019-0150 - 5/24/2019CITY OF ROUND ROCK AGREEMENT FOR
PROFESSIONAL CONSULTING SERVICES RELATED
TO ZONING AND LANDSCAPE INSPECTION SERVICES
WITH
SEC PLANNING, LLC
THE STATE OF TEXAS
§
§
THE CITY OF ROUND ROCK
§ KNOW ALL BY THESE PRESENTS
COUNTY OF WILLIAMSON
§
COUNTY OF TRAVIS
§
THIS 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 SEC PLANNING, LLC, located at 4201 West Parmer
Lane, Building A, Suite 200, Austin, TX 78727 (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
March I, 2019 through September 30, 2020
any time, and may elect to terminate the
continue.
00422728/ss2
be for eighteen months (18) months commencing
. City reserves the right to review the Agreement at
Agreement with or without cause or may elect to
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 Thirty -Six Thousand Six Hundred
Twenty -Three and 751100 Dollars ($36,623.75) 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.
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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
Iater. Consultant may charge interest on an overdue payment at the "rate in effect" on September
1 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 Iate; 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 perfonned 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.
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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.
10.01 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
the useable work, and other factors will affect the value to the City of the work performed at the
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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 aff liate 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 insurance requirements as set forth at:
htt ://www.roundrocktexas. ov/w-content/u loads12014;' 12: 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.
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:
(l) 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.
(6) 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.
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
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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 party'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: (1) 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 Iaw, 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.
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,
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
Consultant'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
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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.
17.01 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 liable 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
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 -
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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: (l) 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:
(1) 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.
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21.01 COMPLIANCE WITH LAWS, CHARTER ANIS 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 tern 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 Planner
Planning and Development Services
301 W. Bagdad Avenue, Suite 2I0
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.
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Notice to Consultant:
SEC Planning, LLC
4201 West Parmer Lane Building
A, Suite 200
Austin, TX 78727
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 8 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
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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.]
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IN WITLESS WHEREOF, the parties have executed this Agreement on the dates
hereafter indicated.
City of Round Rock, Texas
By:
Printed Name:
Title:
Date Signed: ?W jf6
For City, Attest:
By: _ ,77
Sara L. V4' hite, City Clerk
For City, Approved as to Form:
4 By: L1
Ste-plTfrn Q Sheets, City Attorney
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SEC Plannh
By:
Printe Nami
Title:
Date Signed:
Exhibit "A"
SEC Planning, 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 for a noted deficiency;
3. Deficiencies are corrected, and the landscape architect is notified that corrections have been
completed;
4. The landscape architect reinspectsthe project and approves the corrections.
5. The landscape architect writes a Letter of Concurrence "that the project is installed per the
approved plan and emails the letterto David Bostat Planning Development Services (PDS).
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. P DS will select which Professional Services Consultant (the Consultant)will providethe inspection
services forthe 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 requestingthe inspection services
including the agreed inspection date and time and provide contact informationforan 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 i 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 maybe 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 reviewthe inspection comments and 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, PDSwill contact the 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 intoTrakit, 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 forthe 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 Consultantwillattach amemowiththeirpunchlistsubmittal identifyingtheConsultantstaff
who performedthe inspection, the billable hours and the associated hourly rate.
3. The Consultant will submit a monthly invoice to PDS prior to the tenth (10") of the month for
contracted services provided during the previous month.
4. PDSwillevaluate andapprovetheinvoiceandforwardittothe Finance Departmentforpayment.
5. PDS will create and maintain a spreadsheet of compensation provided toeach Consultant during
the currentCityof Round Rockfiscal year.
Exhibit "A"
Division of Services/ Consultant Selection for a Project: It will be PDS's responsibility to seiectwhich
Consultantwill provide inspection services fora given project. Selection criteria will include the following:
1. A Consultantcannot provide inspection servicesfora projectwhich 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
immediately when contacted by PDSto do the 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, during a 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 andthe expected outcomes from 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. 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 regarding the Consultant selection process as outlined above.
3. Inspection services as described above;
a. 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 or other factors.
Exhibit "A"
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 editing —
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 1"-2" above finished grade
14. _Tree 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. Trees larger than 4 caliper inches shall require a
minimum of 3 guy wires anchored into the ground.
15. _ Only container grown trees shall be planted from April 11' — September 30"'. From October
V — March 31", container grown or balled and bur -lapped may be planted. Staff strongly
recommends the use of container grown trees year around.
16. _ Limb removal: Remove torn, damaged, and dead branches; rubbing branches; and sprouts
and suckers
Screening
17. _ Ensure required ground -mounted equipment screening is provided (1 lrg. 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. _ 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) d bost@ round rocktexas, ov I when all punchlist items are corrected.
EXHIBIT "B"
Consultant's Hourly Rate Schedule
Senior Landscape Manager - $125.001 hour
Project Manager - $100.00/ hour
Staff Planner/LA 11 - $95.001 hour
Staff Planner/LA I - $$5.001 hour
Administrative - $65.001 hour
City of Round Rock
ROUNO CROCK
T. ERAS Agenda Item Summary
Agenda Number:
Title: Consider executing a Professional Consulting Service Agreement with SEC
Planning, LLC for Zoning and Landscaping Inspection Services.
Type: City Manager Item
Governing Body: City Manager Approval
Agenda Date: 5/24/2019
Dept Director: Brad Wiseman, Director of Planning and Development Services
Cost: $36,623.75
Indexes: General Fund
Attachments: SEC contract
Department: Planning and Development Services Department
Text of Legislative File CM -2019-0150
The Planning and Development Services Department has identified three Professional
Consulting firms with the necessary qualifications to provide landscaping inspection 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 SEC Planning, LLC in an amount not to
exceed $36,623.75
Cost. 36,623.75
Source of Funds: General Fund
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