HomeMy WebLinkAboutResolution - 2018-R0066 - Agri-Waste Technology - 02/08/2018Resolution No. 2018-R0066
Item No. 6.12
February 8, 2018
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for
and on behalf of the City of Lubbock, Professional Services Contract No. 13896 for Engineering
Services, by and between the City of Lubbock and Agri -Waste Technology, Inc., and related
documents. Said Contract is attached hereto and incorporated in this resolution as if fully set forth
herein and shall be included in the minutes of the City Council.
Passed by the City Council on February 8, 2018
DANIEL M. POPE, MAYOR
ATTEST:
0, " ".- 3<�
Rebe ca Garza, City Secre y
APPROVED AS TO CONTENT:
Aubrey A. Spe .E., Director & Water Utilities
APPROVED AS TO FORM:
Amy
vw:ccdocs/RES.PSC-13896.Agri-Waste Temology
01.23.2018
Resolution No. 2018-R0066
PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement ("Agreement") #13896 is entered into this &h day
of February, 2018, by and between the City of Lubbock (the "City"), a Texas home rule municipal
corporation, and Agri -Waste Technology, Inc. (the "Engineer" or "AWT"), a North Carolina
corporation.
WITNESSETH
WHEREAS, Engineer has substantial skill and experience in the fields of agronomy and
soil science and the management, evaluation and remediation of land application of effluent (the
"Activities");
WHEREAS, after consideration of the work experience and other qualifications, of
Engineer, City has determined that Engineer possesses significant abilities and experience in
regard to the Activities and has agreed to perform services related to the Activities for a fair and
reasonable price;
WHEREAS, the City desires to contract with Engineer to perform services related to the
Activities and Engineer desires to provide the services related to same.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the City and Engineer agree as follows:
ARTICLE I
Services
1.01 Engineer shall conduct all activities, as set forth on Exhibit "A", "Scope of Services",
attached hereto (the "Services"). The Services shall be completed by Engineer as provided
in the Scope of Service. In addition to the specifically described tasks, Engineer shall also
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conduct the activities described in the Scope of Services relating to described specific tasks
(the "Task -5 Additional Services"), as requested by the City.
1.02 The services related to the Activities, including any product deliverable thereof, is
performed at the direction of the City Attorney of the City and such work is privileged
under the attorney -client privilege and the attorney work product privilege. The work, or
any aspect thereof, related to the Activities shall not be disclosed to any other party or
entity without the express approval of the City Attorney of the City.
ARTICLE II
Compensation and Term
2.01 The consideration to be paid for the Services to be provided to the City as described in
Article I shall be as provided on Exhibit "A", attached hereto, not to exceed the sum of
One Hundred Sixty Thousand Five Hundred Fifty Five Dollars and 00/100 ($160,555.00).
The Task 5 Additional Services shall be payable upon the hourly rates and fees as set forth
in Exhibit "A"; provided, however, Engineer agrees to obtain City's prior written approval
of all fees and charges for Task 5 Additional Services shall not exceed the total
accumulated sum of Eighteen Thousand and 00/100 ($18,000). If, during the term of this
Agreement, it is determined that Engineer's total accumulated fees and charges for
Additional Services will exceed the sum of Eighteen Thousand and 00/100 ($18,000), then,
upon mutual agreement of the parties at such time, this Agreement may be amended setting
forth the payment of compensation to Engineer for Task 5 Additional Services in excess of
said sum. The amount payable hereunder shall be invoiced to the City on a monthly basis
as the work is performed, and shall be payable by the City within thirty (30) days after
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receipt of same. Except as differentiated in Section 1.01 and Section 2.01, the terms
"Services" and "Additional Services" shall be collectively referred to herein as "Services".
2.02 This Agreement shall expire 365 days after the date of execution. If the Engineer
determines that additional time is required to complete the Services, the Director of Water
Utilities may, but is not obligated to, in his discretion, execute an agreement to grant up to
an additional six (6) months of time so long the amount of the consideration does not
increase. An amendment to this Agreement resulting in an increase in the amount of the
consideration must be approved by the City acting through its governing body. Either party
may terminate this Agreement for convenience by providing written notice to the other
party at least five (5) days prior to the effective date of termination as provided in such
notice. In the event this Agreement is so terminated, the City shall pay Engineer only for
services actually performed by Engineer up to and including the effective date of
termination.
ARTICLE III
Independent Contractor
3.01 It is understood and agreed that Engineer is to perform the Services in a sound and
professional manner and exercising the degree of care, skill and diligence in the
performance of the Services as a reasonable and prudent engineer; and Engineer hereby
warrants to the City that the Services shall be so performed. Further, Engineer is and shall
be considered at all times an independent contractor under this Agreement and/or in its
services, hereunder. During the performance of the Services under this Agreement,
Engineer and Engineer's employees shall not be considered, for any purpose, employees
or agents of the City within the meaning or the application of any federal, state or local law
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or regulation, including without limitation, laws, rules or regulations regarding or related
to unemployment insurance, old age benefits, workers compensation, labor, personal injury
or taxes of any kind.
ARTICLE IV
Events of Default/Remedies
4.01 Engineer's Defaults/City's Remedies. In the event either party shall default in the
performance of any term or provision of this Agreement for any reason other than failure
by the other party to perform hereunder, the non -defaulting party may, if said default shall
be continuing after five (5) days notice of such default is delivered to the defaulting party,
exercise any right or remedy available to it by law, contract, equity or otherwise, including
without limitation, the right to terminate this Agreement without additional notice.
The remedies set forth herein are cumulative and not exclusive, and may be
exercised concurrently.
ARTICLE V
Insurance/Indemnity
5.01 Engineer shall procure and carry, at its sole cost and expense through the life of this
Agreement, insurance protection as hereinafter specified, in form and substance
satisfactory to City, carried with an insurance company authorized to transact business in
the state of Texas, covering all aspects and risks of loss of all operations in connection with
this Agreement, including without limitation, the indemnity obligations set forth herein.
Engineer shall obtain and maintain in full force and effect during the term of
this Agreement, commercial general liability and professional liability coverage with
insurance carriers admitted to do business in the state of Texas. The insurance companies
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must carry a Best's Rating of A-VII or better. The policies will be written on an occurrence
basis, subject to the following minimum limits of liability:
Commercial General Liability:
Combined Single Limit: $1,000,000
Professional Liability (to include Environmental Liability):
Combined Single Limit: $1,000,000
Automotive Liability (Any Auto) Combined Single Limit: $500,000
The City shall be listed as an additional insured on a primary of non-contributory basis
with respect to the Commercial General Liability. Engineer shall provide a Certificate of
Insurance to the City as evidence of coverage. The Certificate shall provide 30 days notice
to City of cancellation. A copy of the primary and non-contributory additional insured
endorsement and waiver of subrogation attached to the policy will be included in the
Certificate.
Engineer shall elect to obtain worker's compensation coverage pursuant to Section
406.002 of the Texas Labor Code. Further, Engineer shall maintain said coverage
throughout the term of this Agreement and shall comply with all provisions of Title 5 of
the Texas Labor Code to ensure that the Engineer maintains said coverage. The Engineer
may maintain Occupational Accident and Disability Insurance in lieu of Worker's
Compensation. In either event, the policy must be endorsed to include a waiver of
subrogation in favor of the City of Lubbock.
Employer's Liability with limits of at least $100,000 each accident, $500,000 by
disease policy limit, and $100,000 by disease each employee shall also be obtained and
maintained throughout the term of this Agreement.
511
If at any time during the life of the Agreement or any extension hereof, Engineer
fails to maintain the required insurance in full force and effect, Engineer shall be in breach
hereof and all work under this Agreement shall be discontinued immediately.
ENGINEER HEREBY RELEASES THE CITY AND THE CITY' S ELECTED
OFFICIALS, OFFICERS, AGENTS, EMPLOYEES AND INDEPENDENT
CONTRACTORS, FOR ITSELF, ITS EMPLOYEES AND AGENTS, AND SHALL
INDEMNIFY AND HOLD CITY AND CITY'S ELECTED OFFICIALS, OFFICERS,
AGENTS, EMPLOYEES AND INDEPENDENT CONTRACTORS HARMLESS, TO
THE FULLEST EXTENT PERMITTED BY LAW, FROM AND AGAINST ANY AND
ALL CLAIMS, DEMANDS, DAMAGES, COSTS, LIABILITIES AND EXPENSES,
AND INCLUDING REASONABLE ATTORNEY'S FEES, AS A RESULT OF,
RELATED TO, ARISING FROM, OR RELATED TO ENGINEER'S USE OR
OCCUPATION OF CITY OWNED LANDS, AND/OR ANY MATTER RELATED TO
ENGINEER'S ACTIVITIES, PERFORMANCES, OPERATIONS OR OMISSIONS
UNDER THIS AGREEMENT.
ARTICLE VI
Miscellaneous
6.01 Engineer shall comply with all laws, statutes, regulations, ordinances, rules and any other
legal requirement related to, in any way, manner or form, the performance of the Services
contemplated herein.
6.02 Any notice required by this Agreement shall be deemed to be properly served, if (i)
provided in person or by telephonic facsimile; or (ii) deposited in the United States mail
by certified letter, return receipt requested, addressed to the recipient at recipient's address
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shown below, subject to the right of either party to designate a different address by notice
given in the manner just described. Notice shall be deemed to be received when delivered
if provided in person or by telephonic facsimile or, if deposited in the United States mail,
as set forth above, three (3) days after depositing such notice in the United States mail, as
set forth above.
For City:
Neil Weems, Environmental Compliance Coordinator
City of Lubbock
P.O. Box 2000
Lubbock, TX 79457
Facsimile: 806-775-3 027
For Engineer:
Chris Mosley, CEO
501 N. Salem St., Suite 203
Apex, NC 27502
Facsimile: (919) 233-1970
6.03 THIS AGREEMENT IS TO BE CONSTRUED UNDER TEXAS LAW WITHOUT
REGARD TO CONFLICT OF LAW RULES THAT WOULD DIRECT APPLICATION
OF THE LAWS OF ANY OTHER JURISDICTION. THE OBLIGATIONS OF THE
PARTIES CREATED BY THIS AGREEMENT ARE PERFORMABLE, AT LEAST IN
PART, IN LUBBOCK COUNTY, TEXAS. VENUE FOR ANY ACTION BROUGHT
PURSUANT TO THIS AGREEMENT, OR ACTIVITY CONTEMPLATED HEREBY,
SHALL EXCLUSIVELY BE IN LUBBOCK COUNTY, TEXAS.
6.04 This Agreement represents the entire and sole agreement between the City and Engineer
with respect to the subject matter hereof and supersedes any and all prior negotiations,
understandings, representations or other agreements, whether written or oral. This
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Agreement may not be modified or amended except in writing and duly executed by each
party hereto.
6.05 Nothing contained herein shall be construed to imply a joint venture, joint enterprise,
partnership or principal — agent relationship between Engineer and the City.
6.06 If any provision of this Agreement is declared invalid or unenforceable, such provision
shall be deemed modified to the extent necessary to render it valid and enforceable so long
as said modification is reasonably within the intent the parties as originally expressed. In
the event such provision may not be so modified, the unenforceability or invalidity of any
provision shall not affect any other provision of this Agreement, and this Agreement shall
continue in force and effect as if such provision had not been included in this Agreement.
6.07 Any and all work product prepared by Engineer as part of the Services hereunder, shall
become the property of the City when Engineer has been compensated as set forth in
Section 2.01, above.
6.08 A waiver by either City or Engineer of a breach of this Agreement shall be in writing. In
the event either party shall execute and deliver such waiver, such waiver shall not affect
the waiving party's rights with respect to any other or subsequent breach.
6.09 Engineer may not assign this Agreement, in whole or in part, without the written consent
of such assignment by the City. City and Engineer each bind itself or himself, their legal
representatives and permitted assigns in respect to all provisions of this Agreement.
6.10 Nothing in this Agreement shall be construed to provide any rights or benefits whatsoever
to any party other than City and Engineer.
6.11 Engineer represents and warrants to City that it has taken all actions necessary to authorize
the party executing this Agreement to bind, in all respects, Engineer to all terms and
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provisions of this Agreement, and that such person possesses authority to execute this
Agreement and bind Engineer hereto.
6.12 The City reserves the right to exercise any right or remedy available to it by law, contract,
equity, or otherwise, including without limitation, the right to seek any and all forms of
relief in a court of competent jurisdiction. Further, the City shall not be subject to any
arbitration process prior to exercising its unrestricted right to seek judicial remedy. The
remedies set forth herein are cumulative and not exclusive, and may be exercised
concurrently. To the extent of any conflict between this provision and another provision
in, or related to, this document, the former shall control.
6.13 No Boycott of Israel. The Consultant warrants that it complies with Chapter 2270, Subtitle
F, Title 10 of the Texas Government Code by Verifying that:
(1) The Consultant does not boycott Israel; and -
(2) The Consultant will not boycott Israel during the term of the Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representatives as of the date first written above.
CITY OF LUBBOCK
Daniel M. Pope, Mayor
ATTEST:
Rebe ca Garza, City SecretaryU
APPROVED AS TO CONTENT:
Aubrey A. Spe - , P.E., Director of Water Utilities
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APPROVED AS TO FORM:
my L. St s, Deputy Ci
AWT Contract 2018
12.15.2017
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Agri -Waste Technology, Inc.
Chris Mosley, CEO
CERTIFICATE OF INTERESTED PARTIES
FORM 1295
1 of 1
Complete Nos. 1- 4 and 6 if there are interested parties.
OFFICE USE ONLY
Complete Nos. 1, 2, 3, 5, and 6 if there are no interested parties.
CERTIFICATION OF FILING
Certificate Number:
1
Name of business entity filing form, and the city, state and country of the business entity's place
of business.
2018-307939
Agri -Waste Technology, Inc.
Apex, NC United States
Date Filed:
01/30/2018
2
Name of governmental entity or state agency that is a party to the contract for which the form is
being filed.
City of Lubbock, Texas
Date Acknowledged:
01/31/2018
3
Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a
description of the services, goods, or other property to be provided under the contract.
13896
Agricultural consulting services for the land application systems.
4
Name of Interested Party
City, State, Country (place of business)
Nature of interest
(check applicable)
Controlling
Intermediary
5
Check only if there is NO Interested Party. ❑
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6
UNSWORN DECLARATION
My name is and my date of birth is
My address is
(street) (city) (state) (zip code) (country)
I declare under penalty of perjury that the foregoing is true and correct.
Executed in County, State of on the day of , 20
(month) (year)
Signature of authorized agent of contracting business entity
(Declarant)
corms provioea by i exas ttnics commission www.etnlcs.state.tx.us Version V1.0.5523
CERTIFICATE OF INTERESTED PARTIES FORM 1295
1 of 1
Complete Nos. 1- 4 and 6 if there are interested parties.
Complete Nos. 1, 2, 3, 5, and 6 if there are no interested parties.
OFFICE USE ONLY
CERTIFICATION OF FILING
Certificate Number:
2018-307939
1 Name of business entity filing form, acid the City, state and country of the business entity's place
of business. i'
Agri -Waste Technology, Inc.
Apex, NC United States I!
Date Filed:
01/30/2018
Date Acknowledged:
2 Name of govemmental entity or state agency that is a party tot the contract for w is t e forms
being filed.
City of Lubbock, Texas
3 Provide the identification number used by the governmental entity or state agency to track or identity the contract, and provide a
description of the services, goods, or other property to be provided under the contract.
13896
Agricultural consulting services for the land application systems.
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4 Name of Interested Party
City, State, Country (place 'Of business)
Nature of interest
(check applicable)
Controlling
Intermediary
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6 UNSWORN DECLARATION
My name is ri S 1V kr 0 fIt., and my date of birth is
My address is t 0 r V 4" ?.' C- 2 % -�'a,Z.
(street) (city) (state) (zip code) (country)
I declare under penalty of perjury that the foregoing is true and correct.
Executed in County, State of w G ! , on the day of J 4#11
(month) (year)
Signature of authorized agent ontracdng business entity
(Declarant)
onus provided by i exas Ethics Commission www.etmcs.state.tx.us Version V1.0.5523