HomeMy WebLinkAboutResolution - 2008-R0055 - Contract - Aquatrol Inc. - 02_14_2008Resolution No. 2008—R0055
February 14, 2008
Item No. 5.22
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized and
directed to execute for and on behalf of the City of Lubbock, a Contract by and between
the City of Lubbock and Aquatrol, Inc., and all 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 Council.
Passed by the City Council this 14th day of February 2008.
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DAVID A. MfLLER, MAYOR
ATTEST:
e e ca Garza, City Secreta
APPROVED AS TO CONTENT:
Thomas Adams, beputy City Manager
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!;teve Claybrook, Direct 4 of Environmental Compliance
APPROVED AS TO FORM:
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Richard K. Casner
First Assistant City Attorney
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Resolution No. 2008-R0055
CONTRACT
This Contract (herein so called) is dated effective February 14 , 2008, and is by
and between the City of Lubbock, Texas, a Texas home rule municipal corporation (the "City")
and Aquatrol, Inc., a Texas corporation ("Aquatrol")
WHEREAS, the City is in possession of certain chemicals utilized in the maintenance
and operation of swimming pools, as more thoroughly described on Exhibit "A", attached hereto
("Goods");
WHEREAS, the Goods cannot now be utilized by the City, and the storing or disposing
of said Goods continues or will cost the City expenditure of public funds;
WHEREAS, Aquatrol has examined the Goods and finds said Goods to be in excellent
condition and suitable for future use in the means and manner as described within the
manufacturers' labeling thereof;
WHEREAS, the City, by the conveyance of the Goods to Aquatrol, will enjoy the benefit
of the avoidance of storage and/or disposal costs thereof,
WHEREAS, Aquatrol desires that the City convey the Goods to it upon the consideration
of the promises and covenants herein contained, including without limitation the indemnities and
releases set forth below.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is herein acknowledged, the City and Aquatrol hereby agree as follows:
1. CITY AGREES TO CONVEY TO AQUATROL THE GOODS, WITHOUT,
AND HEREBY DISCLAIMS, WARRANTIES OF ANY KIND, WHETHER
EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMiTATION,
WARRANTIES OF TITLE TO THE GOODS, WARRANTIES OF
MERCHANTABILITY, AND WARRANTIES OF FITNESS FOR USE OR
PARTICULAR PURPOSE. THE CONVEYANCE OF THE GOODS SET
FORTH HEREIN IS "AS IS", "WHERE IS", AND "WITH ALL
FAULTS.""
?. IN CONSIDERATION OF THE CONVEYANCE OF THE GOODS SET
FORTH HEREIN, AQUATROL HEREBY, TO THE FULLEST EXTENT
PERMITTED BY LAW, HEREBY RELEASES, INDEMNIFIES, AND
HOLDS HARMLESS, CITY, AND THE CITY'S RESPECTIVE
OFFICERS, EMPLOYEES, ELECTED OFFICIALS, AGENTS,
INDEPENDENT CONTRACTORS, SUCCESSORS AND ASSIGNS (FOR
THE PURPOSE OF THIS PARAGRAPH 2, ALL OF SUCH PARTIES
BEING COLLECTIVELY DEFINED AS "CITY"), FOR, FROM AND
AGAINST ANY AND ALL ENVIRONMENTAL CLAIMS AND
ENVIRONMENTAL CLEANUP LIABILITY, AS DEFINED BELOW,
WHICH ARISE DIRECTLY OR INDIRECTLY FROM OR ARE
RELATED TO THE USE, OPERATION, MAINTENANCE, POSSESSION,
STORAGE, DISPOSAL OR ABANDONMENT OF THE GOODS,
INCLUDING WITHOUT LIMITATION, THE ABOVE DESCRIBED
EVENTS CAUSED BY, OR CONTRIBUTED TO, IN WHOLE OR IN
PART, THE NEGLIGENCE OF ANY KIND, TYPE OR DEGREE,
INCLUDING WITHOUT LIMITATION GROSS NEGLIGENCE, OR
FAULT, OF THE CITY. Aquatrol further covenants and agrees to defend any
suits or administrative proceedings brought against City on account of any such
Environmental Claims or Fnvironmental Cleanup Liability, and to pay or
discharge the full amount or obligation of such Environmental Claims or
Environmental Cleanup Liability incurred by, accruing to or imposed on City
resulting or related to any such suit or suits or administrative proceedings, or any
amounts resulting from the settlement or resolution of such suit or suits or
administrative proceedings. In addition, Aquatrol shall pay to City reasonable
attorneys' fees incurred by City in enforcing Aquatrol's indemnities and releases
as set forth in this Section 2.
As used in this Contract:
(a) "Chemical Substances" shall mean the Goods, and any chemical substance
contained within the Goods, including, but not limited to, any sort of pollutants,
contaminants, chemicals, raw materials, intermediates, products, industrial. solid,
toxic or hazardous substances, polychlorinated biphenyls, petroleum products or
any substance of any kind containing any of the above.
(b) "Environmental Claim" shall mean any claim, demand, action, suit or
proceeding for the injury, disease or death of any person (including, without
limitation, Aquatrol's successors, assigns, employees, agents and/or
representatives), property damage, damage to the environment, or damage to
natural resources made or damage or injury of any other kind, arising or alleged to
arise under, or relating to, any Environmental Law. Environmental Claim
includes any damages, settlement amounts, tines and penalties assessed or costs
of complying with any orders or decrees of courts, administrative tribunals or
other governmental entities associated with resolving such claims, demands,
actions, suits or proceedings and any costs, expenses and fees, including, without
limitation, reasonable attorneys' fees incurred in the investigation, defense and
resolution of such claims, demands, actions, suits and proceedings.
(c) `Environmental Cleanup Liability" shall mean any cost or expense of any
nature whatsoever incurred to investigate, contain, remove, remedy, respond to,
clean up, or abate any Release or presence of Chemical Substances or other
contamination or pollution of the air, surface water, groundwater, land surface or
subsurface strata related to the operation, use, maintenance, abandonment,
disposal or ownership of the Goods, including, but not limited to, any Release of
Chemical Substances or other contamination or pollution arising out of or
resulting from the generation, processing, distribution, introduction into
environment or commerce, or on -site or off -site use, treatment, handling, storage,
disposal, or transportation of any Chemical Substance. Environmental Cleanup
Liability includes, without limitation, any judgments, damages, settlements, costs
or expenses (including, without limitation, attorneys', consultants', and experts'
fees and expenses) incurred with respect to (i) any investigation, study,
assessment, legal representation, cost recovery by a governmental agency or third
party, or monitoring or testing in connection therewith, (ii) real property as a
result of actions or measures necessary to implement or effectuate any such
containment, removal, remediation, response, cleanup or abatement, and (iii) the
resolution of such liabilities.
(d) "Environmental Law" means any federal, state or local statutes or any
other legal requirements relating to or regulating pollution, worker, employee and
occupational safety and health, protection or cleanup of the environment or
damage to or remediation of damage to real property and natural resources
(including, but not limited to, ambient air, surface water, groundwater, and land
surface or subsurface strata) including, without limitation, legal requirements
contained in the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. § 9601 et seq., as amended (CERCLA); the Resources
Conservation and Recovery Act, 42 U.S.C. § 6901, et seq., as amended (RCRA);
the Superfund Amendments and Reauthorization Act of 1986, Pub, L. 99-499, as
amended (SARA); the Clean Air Act, 42 U.S.C. § 7401, et seq., as amended; the
Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq., as amended; the
National Environmental Policy Act, 42 U.S.C. § 4321, et seq., as amended
(NEPA); and the Safe Drinking Water Act, 42 U.S.C. § 300f, et seq., as amended;
and/or any other federal, state or local laws, statutes, ordinances, rules, regulations
or orders (including decisions of any court or administrative body) relating to
pollution, worker, employee and occupational safety and health, protection or
cleanup of the environment as described above. Environmental Law shall also
mean any other federal, state (including, without limitation, laws with respect to
trespass, nuisance and other torts or similar legal theories which may be applied to
establish liability or responsibility for Environmental Cleanup or Environmental
Claims) or local laws, statutes, ordinances, rules, regulations or orders (including
decisions of any court or administrative body) relating to (i) release, containment,
removal, remediation, response, cleanup or abatement of any sort of Chemical
Substance, (ii) the manufacture, generation, formulation, processing, labeling,
distribution, introduction into environment or commerce, use, treatment, handling,
storage, disposal or transportation of any Chemical Substance, (iii) exposure of
persons, including agents, contractors and employees of Aquatrol, to any
Chemical Substance and other occupational safety or health matters, or (iv) the
environmental hazards relating to the physical structure or condition of a building,
facility, tank, fixture or other structure, including, without limitation, those
relating to the management, use, storage, disposal, cleanup or removal of any
Chemical Substance.
(e) "Release" shall mean any spilling, leaking, pumping, pouring, emitting,
spraying, emptying, discharging, escaping, leaching, dumping or disposing, in any
way, manner or form, of any Chemical Substance into the environment
(including, but not limited to, the ambient air, surface water, groundwater and/or
land surface or subsurface strata) of any kind whatsoever (including also the
abandonment or temporary abandonment or discarding of barrels, containers,
tanks or other receptacles containing or previously containing any Chemical
Substance).
3. Aquatrol hereby expressly stipulates that the Goods do not comprise waste, as
such term may be defined or used in connection with or related to any
Environmental Law.
4. Aquatrol shall comply with all Environmental Laws, and any other applicable
statute, rule, regulation, order, law or ordinance, whether it be federal, state or
local, related to the use, storage, possession or disposal of the Goods.
5. Aquatrol hereby stipulates that it is and shall be classified as the generator of the
Goods in the event such Goods shall ever be classified as waste, from and after
the date of the conveyance of the Goods to Aquatrol by the City, and shall execute
any document, manifest and/or instrument upon presentment that may be required
to effectuate said classification and liability.
G. The terms and provisions of this Contract, set forth in Sections I through 5, shall
survive the Closing of the transaction contemplated herein, Aquatrol expressly
stipulating that such obligations are continuing obligations.
7. In the event Aquatrol shall fail to perform any covenant, obligation or agreement
contained herein, the City may exercise any and all rights and remedies available
to it by law, contract, equity, or otherwise. The rights and remedies set forth
herein are intended by all parties to be cumulative, and the exercise by the City of
one or more rights or remedies shall not preclude the exercise of subsequent rights
or remedies_
8. THIS CONTRACT 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 CONTRACT ARE
PERFORMABLE, AT LEAST IN PART, IN LUBBOCK COUNTY, TEXAS.
VENUE FOR ANY ACTION BROUGHT PURSUANT TO THIS CONTRACT,
OR ACTIVITY CONTEMPLATED HEREBY, SHALL EXCLUSIVELY BE IN
LUBBOCK COUNTY, TEXAS.
9. This Contract represents the entire and sole agreement between the City and
Aquatrol with respect to the subject matter hereof and supersedes any and all prior
negotiations, understandings, representations or other agreements, whether written
or oral. This Contract may not be modified or amended except in writing and
duly executed by each party hereto.
10. If any provision of this Contract 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
unenforceabitity or invalidity of any provision shall not affect any other provision
of this Contract, and this Contract shall continue in force and effect as if such
provision had not been included in this Contract.
11. Aquatrol represents and warrants to City that it has taken all actions necessary to
authorize the party executing this Agreement to bind, in all respects, Aquatrol to
all terms and provisions of this Agreement, and that such person possesses
authority to execute this Agreement and bind Aquatrol hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement by their
duly authorized representatives as of the date first written above.
Executed this 14th day of February , 2008.
CITY OF LUBBOCK
00
DAVID A. MILLER, MAYOR
ATTEST:
Re c ca Garza, City Secretar
APPROVED AS TO CONTENT:
r
Tom Adams, Deputy City Manager
Steve Claybrook„ Director f Environmental Compliance
APPROVED AS TO FORM:
Richard K. Casner, First Assist ity Attorney
Aquatrol, Inc.
By: ---��
N4m-e: Stepjrm Lampman
Title: eve 5 -- 'C" t
Richard/ Aquatrol Contract
January 14, 2009
Resolution No. 2008-R0055
Exhibit "A"
Goods
HTH Calcium Plus
Quantity: 4 - 121b buckets
Use: Hardness increaser for swimming pools and spas
Manufacturer:
Arch Chemicals, Inc.
501 Merritt 7 PO Box 5204
Norwalk, CT 06856-5204
(800) 511-MSDS
Sun Stain and Metal Control II
Quantity: 6 quarts
Use: Stain and scale control for swimming pools and spas
Manufacturer:
Asepsis, Inc.
Sun
P.O. Box 537
Avondale Estates, GA 30002
(800) 959-7946