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HomeMy WebLinkAboutResolution - 2009-R0318 - Agreement - Bierschwale Appraisals - Real Estate Appraisals - 08/13/2009Resolution No. 2009-RO318 August 13, 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 between the City of Lubbock and Bierschwale Appraisals to provide services in the preparation of real estate appraisals. 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 13th day of August 2009. TQM MARTIN, MAYOR ATTEST: to Rebecc Warza, City Secretary APPROVED Adams, CONTENT: C ityManager APPROVED AS TO FORM: te, Assistarfl City Attorney gs/Agreement-Professional Servs-Bierschwale Appraisals -res 8110/©4 Resolution No. 2009-80318 PROFESSIONAL SERVICES AGREEMENT This Professional Services Agreement ("Agreement") is entered into this 13th day of August, 2009, by and between the City of Lubbock (the "City"), a Texas home rule municipal corporation, and Bierschwale Appraisals, a private company. WITNESSETH WHEREAS, Contractor has substantial skill and experience in the preparation of real estate appraisal; project; WHEREAS, the City is required to secure appraisals for Lake Alan Henry water supply WHEREAS, the City desires to contract with Contractor to perform services related to Lake Alan Henry water supply project and Contractor 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 Contractor agree as follows: ARTICLE I Services 1.01 Contractor shall conduct all activities and within such time frames, as set forth on Exhibit "A", "Scope of Services and Deliverables", attached hereto (the "Services"). ARTICLE II Compensation and Term 2.+01 Contractor shall be paid for the Services to be provided the City as set forth on Exhibit "B", "Compensation", attached hereto (the "Compensation"). The Contractor may submit a bill and request payment for each task outlined in the Services as the work required for each task has been completed and as the deliverables required for the tasks have been provided. 2.02 This Agreement shall expire on August 31, 2011. Additionally, the City may terminate this Agreement by providing written notice to Contractor at least thirty (30) 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 Contractor only for services actually performed by Contractor up to and including the date the Contractor is deemed to have received the City's notice of termination. ARTICLE III Independent Contractor 3.01 It is understood and agreed that Contractor 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 is exercised by a professional engineer under similar circumstances and Contractor hereby warrants to the City that the Services shall be so performed. Further, Contractor is and shall be considered at all times an independent contractor under this Agreement and/or in its service, hereunder. During the performance of the Services under this Agreement, Contractor and Contractor's employees will 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, industrial acts, labor, personal injury or taxes of any kind. -2- ARTICLE IV Events of Default/Remedies 4.01 a. City's Defaults/Contractor's Remedies. In the event the City shall default in the performance of any term or provision of this Agreement for any reason other than failure by Contractor to perform hereunder, Contractor may, if said default shall be continuing after five (5) days notice of such default is delivered to the City, exercise any right or remedy available to it by law, contract, equity or otherwise. b. Contractor's Defaults/Ci 's Remedies. In the event Contractor shall default in the performance of any term or provision of this Agreement for any reason other than failure by the City to perform hereunder, the City may, if said default shall be continuing after five (5) days notice of such default is delivered to Contractor, exercise any right or remedy available to it by law, contract, equity or otherwise, including without limitation, specific performance and/or 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/Indemni 5.01 Contractor 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. -3- Contractor shall obtain and maintain in full force and effect during the term of this Agreement, commercial general liability and automobile 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: Professional Liability: Combined Single Limit: $500,000 Automobile Liability: Combined Single Limit for any auto: $500,000 Per Occurrence The City shall be listed as a primary additional insured with respect to the Automobile Liability and shall be granted a waiver of subrogation under the policies. Contractor will provide a Certificate of Insurance to the City as evidence of coverage. The Certificate will provide 30 days notice of cancellation. A copy of the additional insured endorsement and waiver of subrogation attached to the policy will be included in the certificate. Contractor shall elect to obtain worker's compensation coverage pursuant to Section 406.002 of the Texas Labor Code. Further, Contractor 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 Contractor maintains said coverage. The contractor 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. -4- If at any time during the life of the Agreement or any extension hereof, Contractor fails to maintain the required insurance in full force and effect, Contractor shall be in breach hereof and all work under the Agreement shall be discontinued immediately. Contractor 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 Contractor's use or occupation of City owned lands, and/or any matter related to Contractor's activities, performances, operations or omissions under this Agreement. ARTICLE VI Miscellaneous 6.01 Contractor shall comply with all laws, statutes, regulations, ordinances, rules and any other legal requirement related to, in any way, manner or farm, 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, as set forth above, three (3) days after depositing such notice in the United States mail, as set forth above. -5- For City: Thomas L. Adams, Deputy City Manager City of Lubbock P.O. Box 2000 Lubbock, Texas79457 Facsimile No. 806-775-2051 For Contractor: Paul Bierschwale 517 College Street Junction, Texas 76849 Facsimile No. 325446-3237 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 Contractor 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. 6.05 Nothing contained herein shall be construed to imply a joint venture, joint enterprise, partnership or principal — agent relationship between Contractor and the City. ! M. 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 documents, drawings and specifications prepared by Contractor as part of the Services hereunder, shall become the property of the City when Contractor has been compensated as set forth in Section 2.01, above. 6.08 A waiver by either City or Contractor 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 Neither City nor Contractor may assign this Agreement, in whole or in part, without the written consent of such assignment by the non -assigning party. City and Contractor 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 Contractor. IN WITNESS WHEREOF, the parties have executed this Agreement by their duly authorized representatives as of the date first written above. ME ATTEST: Rebebea Garza, City Secretary APPROVED T CONTENT: Adams Deputy City Manager APPROVED • CONTRACTOR: By: Paul Bierschwale Title: President CITY OF LUBBOCK: By: Tom Martin Title: Mayor of the City of Lubbock in EXHIBIT A Resolution No. 2009-80318 Scone Appraise tracts as directed by Zach S. Brady, P.C. for Lake Alan Henry Water Supply Project, including easements for the pipeline and property for the Post Pump Station. Phase I appraisals for tracts from Lake Alan Henry to and including the Post Pump Station tract to be delivered by September 10, 2009. Phase 11 appraisals for tracts between Post and Southland Pump Stations, and Phase III appraisals for tracts between Southland Pump Station and the Lake Alan Henry Water Treatment Plant will not be performed until requested by the City in writing. EXHIBIT B Appraiser Paul Bierschwale Keith Barlow Aaron Bierschwale Justin Bierschwale Resolution No. 2009—RO318 Hourly Rate $165 $165 $125 $125 Bierschwale Appraisals will also be reimbursed for travel costs and out of pocket expenses related to the provision of the appraisal services provided for by this agreement.