HomeMy WebLinkAboutResolution - 2019-R0018 - Agri-Waste Technology - 01_22_2019Resolution No. 2019-R0018
Item No. 8.11
January 22, 2019
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 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 January 22, 2019
DANIEL M. POPE, MAYOR
ATTEST:
Reb ca Garza, City Sedreta
APPROVED AS TO CONTENT:
Aubrey A. Qpar, P.E4Ditorof Water Utilities
Eff
APPROVED AS TO FORM:
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AmVol,
Deputy Clirpffomey
vwxcdocs/RES. Agri -Waste Tecnology 12-12-18
Resolution No. 2019-R0018
PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement ("Agreement") # is entered into this 22nd day of
January, 2019, 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 Work",
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
ee
shall also conduct the activities described in the Scope of Work 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 receipt of same. Except as differentiated in Section 1.01 and
6a
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
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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.
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
-4-
this Agreement, commercial general liability and professional liability coverage with
insurance carriers admitted to do business in the state of Texas. The insurance companies
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 An 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.
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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.
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 ATTORNEYS 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
6.1 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.
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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 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: 806-775-3027
For Engineer:
Chris Mosley, CEO
501 N. Salem St., Suite 203
Apex, NC 27502
Facsimile: (919) 233-1970
6.3 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.
-7-
6.4 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
Agreement may not be modified or amended except in writing and duly executed by each
party hereto.
6.5 Nothing contained herein shall be construed to imply a joint venture, joint enterprise,
partnership or principal — agent relationship between Engineer and the City.
6.6 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.
6.7 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.
6.8 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 parry's rights with respect to any other or subsequent breach.
6.9 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.
-8-
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 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.
ATTEST:
--
CITY OF LUBBOCK
Daniel M. Pope, Mayor
Reb ca Garza, City Secret
at
APPROVED AS TO CONTENT:
A. Spoar,`P.E., Ditector of Water Utilities
AS TO FORM:
Amy LXjds, ErepuI5 Ci , orney
Agri -Waste Technology, Inc.
(.� 71
?/N�
Chris Mosley, CEO
AWT Contract 2019
11,27.2018
6C+'a
CERTIFICATE OF INTERESTED PARTIES
Form 1295
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Complete Nos. i - 4 and 6 If there are Interested parties.
Complete Nos.1, 2, 3, 5, and 6 It there are no Interested parties.
OFFICE USE ONLY
CERTIFICATION OF FILING
Certificate ate Number:
1 Nana of business oft f0v florin, and the ft. state and country of fie bodiless woVs place of
business.
2019439842
Agri -Waste Technology, Inc.
Apex, NC United States
Demo Fftd:
ar agency M Is a parly
Med.
01/09/2019
City of Lubbock, Texas
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services, goods, or drier property to be provided teedsr the condacL
14391
Agricultural consulting services for land application systems
4 Name of bdemsmd Partly
Oar, Stale, CourMy (place of business)
Nature of brtere M
(check applicable)
b Check ordy fr tlnene is NO Interested Party. ❑
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6 UNS ORN DECLARATION My name is C h ilk M S • • 0j(
and my date of Birth
My address is �1 A/ J a t#m JH . —rki iL 7,0 3
, USA
(street)
(may) (Sbft) (zlp code) (country)
I declare under penalty of perjury that the foregoing is true and correct.
W Executed in A rr__�G County, State of
tic . on fits !?tday of VR11 20L!�.
(month) (year)
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S�nstun of auftrized agent ntracsing business entity
(Aederam)
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