HomeMy WebLinkAboutResolution - 2009-R0003 - Agreement - Agri-Waste Technology Inc. - 01_08_2009Resolution No. 2009-R0003
January 8, 2009
Item No. 5.5
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 Professional Services
Agreement by and between the City of Lubbock and Agri -Waste Technology, Inc.
("AWT"), and all related documents. Said Agreement is attached hereto and incorporated
in this Resolution as if fully set forth herein and shall be included in the minutes of the
Council.
Executed by the City Council this 8th day of January 2009.
II TOM MARTIN, MAYOR
ATTEST:
ebe ca Garza, City Secretary
AS TO CONTENT:
�eputy City Manager/Water Utilities Director
APPROVED AS TO FORM:
Richard KCasner
first Assistant City Attorney
docs/Pr( fessionalServicesAgreement-Agri-WasteTechnology2008
ecember 18, 2008
Resolution No. 2009-R0003
PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement ("Agreement") is entered into this Sth day of
January, 2009, but effective for all purposes January 1, 2009, 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
Qn i0n0
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 conduct the activities described in the Scope of Services relating to described
specific tasks (the "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 lI
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 Twenty -Nine Thousand One Hundred and 00/100 ($129,100). The
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 approval of all fees and
charges for 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 ($15,000), then, upon mutual agreement of the
parties at such time, this Agreement may be amended setting forth the payment of
compensation to Engineer for 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 receipt of same.
1)
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 on January 1, 20010. 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 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.
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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
4
must cant' 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
The City shall be listed as an additional insured 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 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.
1.1
If at any time during the file 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 V1
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 (1)
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 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
0
United States mail, as set forth above.
For City:
Thomas Adams, Deputy City Manager
City of Lubbock
P.O. Box 2000
Lubbock, TX 79457
Facsimile: 806-775-2051
wlcopy to:
Aubrey Spear, Assistant Water Utility Director
City of Lubbock
P.O. Box 2000
Lubbock, TX 79457
For Engineer:
Chris Mosley
5400 Etta Burke Court
Raleigh, NC 27606
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
7
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.
8
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 provisions of this Agreement, and that such person possesses authority to execute this
Agreement and bind Engineer hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement by their duly
authorized representatives as of the date first written above.
Engineer: Agri -Waste Technology, Inc.
By:
Name: C/"1' 1114
Title: /_A- 7
CITY OF LUBBOCK
TOM MARTIN, MAYOR
ATTEST:
Reb ca Garza, City Secretary
APPROVED AS TO CONTENT:
Thomas Adams
Deputy City Manager/Water Utilities Director
APPROVED AS TO FORM:
Richard K. Casner
First Assistant City Attorney
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Resolution No. 2009-R0003
EXHIBIT "A"
Scope of Services
Task 1: Water 1 Nitrogen Balance Modeling and Reporting
Task 1.1 Weekly Activities
1. Weekly water and nitrogen application report shall be based on the output of the water
and nitrogen balance model and include:
a. Significant non -routine issues requiring attention
b. Reservoir levels for that week
c. Pumping summaries from W WTF
d. Pumping summaries to plots and outfalls
e. Available storage in reservoirs
f. Recommended applications to plots during the upcoming week
i. In gallons and inches
ii. Including special notes required
2. Data table updates to model, including effluent data updates and land application
spreadsheets
3. Weekly Summary Report shall include:
a. Summary of applications for the previous week
i. Recommended application
ii. Actual application
iii. Difference
iv. Planned annual PAN application (pounds of N per acre)
v. Year to date PAN application (pounds of N per acre and percent of
planned)
vi. Special notes and explanations for differences over 0.5 inches of irrigation
b. Significant non -routine issues requiring attention
Task 1.2 Quarterly Activities
1. Update of soil data in model — during the year the City of Lubbock will provide updated
soil analysis results. These results will be incorporated into the model.
2. Crop information updates — approximately quarterly the City will provide updated crop
information (crop location, condition, and harvest) to the contractor, these updates will be
incorporated into the model.
3. GIS updates
a. Delivery of updated shapefiles and other data to the City
4. The Engineer's project manager will prepare a brief quarterly report. The project
manager will contact, by phone, the technical representative to briefly discuss the
quarterly report. The report should be approximately l to 2 pages and cover:
a. Needs from the client
b. Upcoming deliverables to client/others
c. Completed & upcoming milestones, events, and meetings
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d. Outstanding issues
e. Topics for the City of Lubbock's quarterly discussion with Mike Chadwick
(TCEQ)
Task 1.3 Annual Activities
1. Annual model update and preparation (September) — each year the Engineer will
completely update and prepare the model for use during the upcoming year. The revised
model upcoming year and the completed and closed -out model for the previous year will
be provided in electronic format to the technical representative.
2. Annual model projections by month — each year the Engineer will use the updated model,
using historical average precipitation, the latest soil samples, effluent analyses for the
previous year and projected flows from the SEWRP, to provide a snapshot of the
projected applications needed for each plot on a monthly basis
Task 2: Model Simulations for Management Changes
Full rerun/update of model — during the year it is expected that the City will require a full
scale rerun or update to the model, either to simulate proposed management changes or
reflect actual management changes. This is expected to be required approximately four
times per year.
Task 3: Site Visits
l . Agronomist site visit to verify model parameters (winter and summer) — the Engineer will
schedule two site visits by an agronomist (one accompanied by Engineer) through the
technical representative. During these site visits the Engineer's agronomist will verify
that conditions at LLAS and HLAS are consistent with the model parameters being used
for weekly recommendations.
2. Agronomist site visit report — the Engineer will develop a report providing notes from the
visit and identifying any issues requiring attention.
3. HLAS SAR inspection and report (during a semi-annual site visit) — during one of the
semi-annual site visits described above, the Engineer's agronomist will evaluate soil
profiles in 3-6 fields at HLAS for evidence of infiltration problems associated with high
sodium adsorption ratios.
Task 4: LLAS Recharge Estimates
LLAS recharge estimate (Spring) — the Engineer will prepare an estimate of the leached effluent
and excess N applied at the LLAS for the previous year. This estimate will be based on actual
application records, effluent analyses and weather data. The Engineer will prepare a projection
of similar information for the current year and the next 4 years.
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Additional Services
It is anticipated by the City and AWT that additional services related to the above described
work will be necessary ("Additional Services") during the term hereof. Upon request of the City,
AWT agrees to perform such work at the hourly rates and fee reimbursements included in our
schedule of fees, but not to exceed the sum of Eighteen Thousand and 00/100 dollars ($18,000).
Costs of Services
Routine Services
Total Task 1: Water/Nitrogen Balance Modeling and Reporting, not to exceed $70,500/year
Task 1. 1: Weekly Activities as indicated in the scope of services billed as a lump sum of:
$3,700/month
1.1
Rate
Hours/week
Week/month
Cost/Month
Chris
90
5
4.33
$1 „948.50
Enrique
67
2.75
4.33
$797.80
Jeff
90
1
4.33
$389.70
Dr. Safle
155
0.5
4.33
$335.58
Supplies
4.811
11
4,331
$20.82
Total
1 $3,492.39
Task 1.2: Quarterly Activities as indicated in the scope of services billed as a lump sum of.
$3, 800/quarter
1.2
Rate
Hours/week
Week/quarter
Cost/Quarter
Chris
90
0.5
13
$585.00
Enrique
67
2.5
13
$2,177.50
Jeff
90
0.25
13
$292.50
Dr. Safle
155
0.25
13
$503.75
.Supplies
3.85
1
13
$50.00
Total
$3,608.75
The remainder of the tasks will be billed as time and materials with a not to exceed amount as
presented. These activities will be accomplished by various professionals listed on our schedule
of fees. It is our intention to use the lowest cost employees according to their individual talents
and abilities relative to the task at hand.
Task 1.3: Annual Activities as indicated in the scope of services billed as time and
materials not to exceed: $10,900/year
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Total Task 2: Model Simulations for Management Changes as indicated in the scope of services
billed as time and materials not to exceed: $19,500/year
Total Task 3: Site Visits as indicated in the scope of services billed as time and materials not to
exceed: $18,300/year
Total Task 4: LLAS Recharge Estimates as indicated in the scope of services billed as time and
materials not to exceed: $20,800/year
Richard/PsofessionalServicesAgreement-Agri-Waste Technology121708
14
Resolution No_ 2009—R0003
SCHEDULE OF FEES
Fees for the Year 2009
AWT will invoice Client at a rate as outlined herein for providing the services listed.
Staff Rate
L.M. Safley, Jr.
$155. Per Hr/$1550. Per Day
$232.50. Per Hr/Legal Rate
Kevin Davidson
$ 95. Per Hr/$1045. Per Day
$135.00 Per Hr/Legal Rate
Chris Mosley
$ 95. Per Hr/$1045. Per Day
$135.00 Per Hr/Legal Rate
Hal Langenbach
$ 95. Per Hr/$1045. Per Day
Jeff Vaughan
$95. Per Hr/$I045. Per Day
$135.00 Per Hr/Legal Rate
Enrique Cachafeiro
$ 71. Per Hr/$781. Per Day
Julie Peele
$ 59. Per Hr/$649. Per Day
Chris McGee
$ 50. Per Hr/$550. Per Day
Sloan Griffin
$ 37. Per Hr/$407. Per Day
Lillian Johnson
$ 37. Per Hr
Clerical/Part Time Staff
$ 30. Per Hr
Melissa Mottern
$ 40. Per Hr
In order to ensure client satisfaction, the following arrangements are proposed to ensure
that the amount invoiced does not exceed expectations:
Client will be invoiced on a monthly basis.
A cost estimate is provided prior to beginning work on any projects not outlined
in this scope of services.
Other arrangements will be considered at Client's recommendation.
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Reimbursement Expenses:
Air Travel
Lodging
Mileage
Meals
Outside Sub -Consultants
Miscellaneous Direct Project Expenses
Copies of Reports
Plotted Drawings
8 1/2" X 11 %z" Color Drawings
Archive Records
Long Distance Telephone Calls
Postage
Shipping (FedEx, UPS, etc.)
Fax — Incoming
Envelopes — Letter Size
Envelopes — Large
Envelopes — Oversize
1" Notebooks
2" Notebooks
3" Notebooks
Insertable Big Tabs
Clear Label Dividers 5/8 Tab
Laser Dividers
Transparencies
CD
Binding Supplies
Cost
Cost
$0.585/mile
Cost
Cost + 15%
Cost + 15%
$0.16/Page + $5.00 Binding Fee
$1.75 Per Square Foot
$1.00 Each
$25.00 Fee + Copy Charge
Cost
Cost
Cost
$0.50/Page
$0.05 Each
$0.15 Each
$0.25 Each
$2.50 Each
$4.00 Each
$5.00 Each
$0.20 Each
$1.00 Each
$5.00 Per Set
$1.00 Each
$1.00 Each
$1.00 Each
Invoices shall be sent to client on a monthly basis. Invoices are due and payable in full
upon receipt.
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