HomeMy WebLinkAboutResolution - 2016-R0444 - Professional Services Agreement - Agri-Waste Technology Inc. - 12/15/2016Resolution No.2016-R0444
Item No.6.13
December 15,2016
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,a Professional Services Agreement
relating to the activities described in the Scope of Services,by and between the City of
Lubbock and Agri-Waste Technology,Inc., and 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 City Council.
Passed by the City Council on December 15.2016
ATTEST:
Rebecca Garza,City Secretary \
APPROVED AS TO CONTENT:
DANIEL M.POPE,MAYOR
L.Wood Franklin,Director of Public Works
APPROVED AS TO FORM:
~7^—f~Amy L:Sjiiis^DepUty'City'Attorney
RES.PSC-Agri-Waste Technology,Inc.
10.21.16
Resolution No. 2016-RO444 13187
PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement ("Agreement") is entered into this 1st day of
January, 2017, 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
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 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 Fifty -Five Thousand Four Hundred and 00/100 ($155,400). 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 ($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 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
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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, 2018. 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
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:
IN
Combined Single Limit:
$1,000,000
Professional Liability (to include Environmental Liability):
Combined Single Limit:
Automotive Liability (Any Auto)
$1,000,000
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.
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.
-5-
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
FIVIrMr�.,�e�,
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
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,
Mal
as set forth above, three (3) days after depositing such notice in the United States mail, as
set forth above.
For City:
Wood Franklin, Director of Public Works
City of Lubbock
P.O. Box 2000
Lubbock, TX 79457
Facsimile: 806-775-2051
w/copy to:
Craig Henderson, Wastewater System Supervisor
City of Lubbock
P.O. Box 2000
Lubbock, TX 79457
Facsimile: 806-775-3246
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,
-7-
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.
6.05 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
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.
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:
Title: V. n
CITY OF LUBBOCK
DANIEL M.A6PE, MAYOR
in
ATTEST:
0 tbz� A--�
Rebec e
arza, City Sec. re y
APPROVED AS T()fCONTENT:
oodp'rank`A, P.E., Director of Public Works
Aubrey Spear, P , Director of v�aiv��izsv
APPROVED AYTO FORM:
AWT Contract 2016
11.3.16
-10-
z 2 -
Engineers and Soil Scientists
Agri -Waste Technology, Inc.
501 N. Salem Street, Suite 203
Apex, North Carolina 27502
919-859-0669
www.agriwaste.com
Exhibit A
October 10, 2016
MEMORANDUM
TO: Mr. Craig Henderson, City of Lubbock
FROM: Jeff Vaughan, Agri -Waste Technology, Inc.
Chris Mosley, Agri -Waste Technology, Inc.
SUBJECT: Revised Annual Cost Estimate for Routine Services for the 2017 Calendar Year
As requested, we have developed a cost estimate for routine consulting services provided by
AWT to the City of Lubbock for the 2017 calendar year. The fees are based on the 2008 scope
of services provided by Lubbock in an email dated November 21, 2007 and the same as the 2016
fees. The scope of services is included as Attachment 1.
Routine Services
Task 1: Water/Nitrogen Balance Modeling and Reporting
$74,300/year
Task 1. 1: Weekly Activities as indicated in the scope of services billed as a lump sum of:
$3,900/month
1.1
Rate
Hours/week
Week/month
Cost/Month
Chris
105
5
4.33
$2,273.25
Julie
61.
1.5
4.33
$396.20
Jeff
105
2.75
4.33
$1,250.29
Su lies
4.81
1
4.33
$20.82
Total
$3,940.55
1
Task 1.2: Quarterly Activities as indicated in the scope of services billed as a lump sum of.
$4,000/quarter
1.2
Rate
Hours/week
Week/quarter
Cost/Quarter
Chris
105
1
13
$1,365.00
Julie
61
1.5
13
$1,189.50
Jeff
105
1
13
$1,365.00
Supplies
3.85
1
13
$50.00
Total
$3,969.50
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: $11,500/year
Task 2: Model Simulations for Management Changes as indicated in the scope of services billed
as time and materials not to exceed: $20,700/year
Task 3: Site Visits as indicated in the scope of services billed as time and materials not to
exceed: $19,400/year
Task 4: LLAS Recharge Estimates as indicated in the scope of services billed as time and
materials not to exceed: $21,400/year
It is anticipated that additional services related to the above described work will be necessary.
Upon request of the City, AWT agrees to perform such work at the hourly rates and fee
reimbursements included in our schedule of fees.
Please contact us with any questions, concerns, or comments.
OUR ENGINEERS/SOIL SCIENTISTS DO THEIR BEST TO ESTIMATE FEES AND EXPENSES FOR
PARTICULAR MATTERS WHERE ASKED TO DO SO. HOWEVER, AN ESTIMATE IS JUST THAT, AND
THE FEES AND EXPENSES REQUIRED ARE ULTIMATELY A FUNCTION OF MANY CONDITIONS
OVER WHICH WE HAVE LITTLE OR NO CONTROL. HOWEVER, SUCH ESTIMATES ARE NOT A
MAXIMUM OR MINIMUM FEE QUOTATION. OUR ACTUAL FEES WILL BE DETERMINED BASED ON
TIME AND MATERIAL REQUIREMENTS.
N
Attachment 1
Scope of Services
SCOPE OF WORK
Task 1: Water / Nitroeen Balance Modeling and Renortin�
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 WWTF
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 contractor'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 1 to 2 pages and cover:
a. Needs from the client
b. Upcoming deliverables to client/others
c. Completed & upcoming milestones, events, and meetings
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 contractor 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 contractor will use the updated
model, using historical average precipitation, the latest soil samples, effluent analyses for
the previous year and projected flows from the SEVWRP, 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 contractor
will schedule two site visits by an agronomist (one accompanied by engineer) through the
technical representative. During these site visits the contractor'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 contractor 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 contractor'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 contractor 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 contractor will prepare a projection
of similar information for the current year and the next 4 years.
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.
12016-148155
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.
Agri -Waste Technology, Inc.
Apex, NC United States
Date Filed-
12/20/2016
2 Name of governmental entity or state agency that is a party tot the contract for which the form is
being filed.
City of Lubbock, Texas
Date Acknowledged:
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.
13187
Consulting services for municipal wastewater land application program.
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.
X
6 AFFIDAVIT hfaXe. I swear, or affirm, under penalty of perjury, that the above disclosure is true and correct.
Lin G. Tilley
NOTARY
WAKE COUNTYNTY,, N.C.N
My Cwwftttion ExpkU 0749.2018
Signature of authorized agenf, contracting business entity
AFFIX NOTARY STAMP / SEAL ABOVE
Sworn to and subscribed before me, by the said U Jj T. lYioslla v this the oZ�' day of
20_L4?_, to certify which, witness my hand and seal of office.
Signature of officer administering 3ath Printed name of officer administer g oath Title of officer dministering oath
Forms provided by Texas Ethics Commission www.ethics.state.tx.us version vi.u.Z it
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:
2016-148155
Date Filed:
12/20/2016
Date Acknowledged:
01/04/2017
1
Name of business entity filing form, and the city, state and country of the business entity's place
of business.
Agri -Waste Technology, Inc.
Apex, NIC United States
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
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.
13187
Consulting services for municipal wastewater land application program.
4
Name of Interested Party
City, State, Country (place of business)
Nature of interest
(check applicable)
Controlling I
Intermediary
5
Check only if there is NO Interested Party. ❑
X
6
AFFIDAVIT I swear, or affirm, under penalty of perjury, that the above disclosure is true and correct.
Signature of authorized agent of contracting business entity
AFFIX NOTARY STAMP / SEAL ABOVE
Sworn to and subscribed before me, by the said this the day of
20 , to certify which, witness my hand and seal of office.
Signature of officer administering oath Printed name of officer administering oath Title of officer administering oath
Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.277