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HomeMy WebLinkAboutResolution - 2015-R0425 - Agreement - Agri-Waste Technology Inc. - 12/17/2015Resolution No. 2015-RO425 Item No. 5.7 December 17, 2015 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 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 Council. Passed by the City Council this 17th day of December _'2015. GL C. RO ERTSON, MAYOR ATTEST: Rebecca Garza, City Secretary AP OV�ED AS TO CONTE T: It (A Aubrey A. S , P.E., Due or of Water Utilities APPROVED A FORM: La a Pratt, Assistant City Attorney RES.Agri-Waste Technology 11.9.15 11.9.15 Resolution No. 2015-RO425 PROFESSIONAL SERVICES AGREEMENT This Professional Services Agreement ("Agreement') is entered into this 1st day of January, 2016, 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 attomey-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 Thirty -Five Thousand Eight Hundred and 00/100 ($135,800). 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. -2- 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, 2017. 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. -3- 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 parry 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 parry, 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 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 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. -5- 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 0 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: 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, 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. -7- 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 -8- 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. CITY OF LUBB CK GLEN C. OBERT ON, MAYOR ATTEST: Ro 06 , . _X_ Re cca Garza, City Secretar APPROVED AS TO CQNTENT: Aubrey A. Spear .E., Directorrof Water Utilities APF ROVE((D��ARO FORM: a a Pratt, Assistant City Attorney AWT Contract 2016 11.3.15 AGRI-WASTE TECHNOLOGY, INC. By: Chris Mosely, Principal