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HomeMy WebLinkAboutBioTerra Envrionmental Engineering (BioTerra) -PWRF Process Water Reuse Facility Holding Pond Sediment RemovalPROFESSIONAL SERVICES AGREEMENT PROCESS WATER REUSE FACILITY HOLDING POND SEDIMENT REMOVAL THIS AGREEMENT is made and entered into this Jg_~ of August 2019, by and between City of Pasco ("Pasco") and Bio Terra Enyironmental Engineering (Bio Terra), ("Company"). WITNESSETH WHEREAS, Pasco operates an industrial wastewater treatment plant known as the "Process Water Reuse Facility" ("PWRF") located north of Pasco in Franklin County, WA; WHEREAS, the PWRF's operations generate sand and other materials (organic and inorganic), also known as Agricultural Residual Solids ("Products"), and; WHEREAS, Pasco stores the Products in a holding pond located at the PWRF. WHEREAS, Pasco desires to have 100% of the Products in the PWRF holding pond removed and disposed of at a properly permitted site ("Land") currently operated by Company; (the Project) NOW, THEREFORE, in consideration of the foregoing recitals and in further consideration of the mutual covenants and agreements hereinafter contained, the parties hereto agree, subject to the terms and conditions hereinafter set forth, as follows: 1) Initial Term. The initial term shall commence on the date this Agreement is executed and shall expire upon completion of the Project, which will be after all Product has been removed as determined by Pasco. Since time is of the essence, the Company will work diligently to complete the project in as timely a manner as possible. It is anticipated the Project will take approximately 140 calendar days ( estimated timeline of six months). Each day will be counted as a 'working day' unless the parties determine it to be an unworkable day. An unworkable day is defined as a day when the ground at either the PWRF or the Land is deemed frozen and unsuitable for work designated in the Contract to be completed properly. Each working day shall be charged to the Contract as it occurs, until the Contract work is physically complete. Extensions of time can only be in writing with adequate justification, subject to approval by the Public Works Director or his/her representative. 2) Additional Term. Upon completion of the Project, this rate will stay fixed for a period not to exceed 5 years for any additional removal of materials. 3) Price Adjustments. None 4) Volume. During the Term of this Agreement, the Company shall accept from Pasco, all of the Products generated at the PWRF; provided, however that Pasco shall be entitled to retain any quantity, volume and/or amount of the Products that it desires to utilize for internal purposes. Company hereby acknowledges and agrees: (i) The quantity, volume and/or amount of Products that will be generated at the PWRF during the Term of this Agreement is uncertain; (ii) Pasco is not obligated or required to produce any minimum quantity, volume and/or amount of the Products during the Term of this Agreement; and (iii) Neither Pasco, nor any of Pasco's officers, directors, employees, agents or representatives, have made any express or implied promise, representation or guarantee that any minimum Professional Services Agreement -Process Water Reuse Facility Holding Pond Sediment Removal Page 2 of6 quantity, volume and/or amount of Products will be generated at the Facility during the Term of this Agreement. 5) Price. During the Initial Term, and subject to any price adjustments mutually agreed upon by the parties pursuant to Section 3 of this Agreement, Pasco shall pay $.015/LB for Company's services. There is an estimated 45,000 tons of Product to be removed from the PWRF holding pond. This results in an estimated cost of $1 ,350,000.00. The total contract price will be based on the actual weight of Product removed from the PWRF holding pond. 6) Coordination with Other Pro jects. During the course of this Project, other construction work will be occurring at the PWRF. This includes, but is not limited to, the Foster Wells Force Main Project and the Irrigation Pump Station (IPS) Project. Company agrees to coordinate their work with each construction contractor working the PWRF site. Company understands there will be times when underground construction work will affect access to/from the PWRF and/or holding pond such that Company's work will be delayed. No adjustment to compensation will be provided for delays related to impacts from these construction projects. 7) Regulato ry Com pliance. Company agrees to conduct business in a manner consistent with the permit requirements issued through the Benton-Franklin Health Department and in accordance with WAC 173-350. Company represents that it has an agreement in place with the owner of Land making said Land available for the land application purposes identified in this Agreement, for the anticipated volumes of Products from the PWRF, throughout the Term of this Agreement, and that it has full right and authority to enter into this Agreement. 8) Weight. For purposes of pricing and invoicing, the weight for the Products shall be determined from certified scale tickets. Company shall not add any substance (water, etc.) to the Products that increases the weight of material removed from the PWRF holding pond without first negotiating a weight compensation/credit with Pasco. 9) Sampling. Company shall be responsible for the sampling and testing of the Products to verify they are in accordance with the Company's permits for removing, hauling and disposal. 10) A gricultural Residual Handlin g. Company shall notify Pasco of any Agreement the Company enters into that could impact the hauling, processing, storage or land application of agricultural residual solids from the PWRF. 11) Payment/De posit. A Project acceptance deposit of $65,000 shall be paid by Pasco to Company within 10 days of contract signature. The Project deposit shall be credited to the final invoice of the Project. Company shall invoice Pasco for the Products processed on a monthly basis with net fifteen (15) day terms. The invoice shall be based on Product weights indicated on the scale tickets issued to Company or designated contract hauler. Monthly invoices for the Products from the PWRF will include the number of loads delivered to Company's site as well as the tare, gross, and net weight of each load/container . 12) Re jection . Notwithstanding anything in this Agreement to the contrary, Company shall not be obligated to accept any Products from Pasco in the event that they do not comply with the Company's permit. The Company shall provide Pasco with written notice of the occurrence. In the event that the condition specified in Company's written notice to Pasco is reversed, eliminated or otherwise resolved, the Company shall be obligated to resume its acceptance of the Products from Pasco in accordance with this Agreement. 13) Foreig n Material. Company shall be responsible for disposal of foreign material removed from the Products prior to the Products being land applied. Company shall be responsible for all costs associated with storage and disposal of foreign materials in a manner consistent with Benton-Franklin Health District rules and regulations. 14) NO WARRANTY; LIMITED LIABILITY: SUBJECT TO THE PROVISIONS OF THIS AGREEMENT, COMP ANY ACKNOWLEDGES AND AGREES THAT IT IS ACCEPTING THE PRODUCTS ON AN "AS IS", "WHERE IS" BASIS, THAT PASCO HAS MADE NO REPRESENTATIONS OR WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS OR IMPLIED, WITH RESPECT TO THE CONDITION, QUALITY, USABILITY, FITNESS, VALUE, OR CONTENT OF THE PRODUCTS DELIVERED TO COMP ANY UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY FURTHER ACKNOWLEDGES THAT IN NO EVENT SHALL PASCO BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF WHATEVER NATURE, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF USE, OR LOSS OF BUSINESS ARISING OUT OF OR IN CONNECTION WITH PWRF'S PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT, COMPANY'S USE OF THE PRODUCTS, OR ANY CLAIM CONCERNING OR RELATING TO THE PRODUCTS. PASCO'S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL BE LIMITED TO A REFUND OF THE PRICE PAID FOR REMOVAL OF THE PRODUCTS. 15) Hold Harmless/Indemnity . Company assumes all risks associated with Companies loading, handling, transportation, use, processing, land application and management of the Products and Horse area. Company agrees to defend, indemnify and hold harmless Pasco, its affiliates, and their officers, directors, employees, and agents from and against any and all claims, liabilities, losses, costs, demands, damages, penalties, expenses or judgments, including attorney fees and costs, relating to claims of any nature including injury to persons or damage to property (including claims of employees and agents of Company and loss or injury to property in Company's custody), arising out of or incidental to Company's purchase or performance under this Agreement, including but not limited to, Company's loading, utilization, disposition, transportation, use, disposal, and/or resale of Products (including, but not limited to, the acts and/or omissions of Company and its agents, employees or contractors). Pasco agrees to defend and hold Company harmless only from those claims, liabilities, losses, costs, demands, damages, penalties, or judgments (including attorney fees and costs) which proximately relate to any personal injuries to Company's employees, or property damage to Company's trucks or equipment, which are caused solely by the negligence of Pasco or Pasco's employees or agents. Pasco's agreement to defend and hold Company harmless herein does not extend to any claims arising out of negligence (other than that of Pasco's employees), strict liability, or any products liability theory or breach of any warranty, all of which shall remain the sole responsibility of Company. 16) Termination/Remedies. It is understood and agreed that either party, at its option, and in addition to any available legal and equitable remedies, shall have the right to cancel this Agreement upon the breach by the other party of any provision of this Agreement which remains uncured for a period of ten (10) days after receiving written notice from the non-defaulting party; provided, however, that such ten (10) day period will be extended to the amount of time reasonably necessary to effect such cure if the defaulting party has commenced to cure such breach within such ten (10) day period and is proceeding diligently to complete such cure. The remedies contained herein are cumulative and are in addition to all other remedies available to either party. Professional Services Agreement -Process Water Reuse Facility Holding Pond Sediment Removal Page 4 of6 17) Notices. Unless otherwise specified in this Agreement, notices between the parties shall be in writing and shall be effective when actually delivered by mail, private courier service, facsimile transmission, or other accepted means of business communication at the following addresses or facsimile numbers: Pasco: City of Pasco 525 N 3rd A venue Pasco, WA 99301 Phone: (509) 543-5738 Company: BioTerra Environmental Engineering Inc. 4403 Mount Daniel Court West Richland, WA 99353 Phone: (509) 727-4356 18) Force Ma ieure. Delay or failure in performance by either party shall be excused to the extent that such delay or failure shall have been caused by an act of God, war or war condition, terrorism, riot, civil commotion, governmental action, strike, interruption of fuel, power, labor, or water, embargo, fire , flood, windstorm, earthquake crop failure, or other cause which could not have been reasonably foreseen and provided against. Any party claiming excuse from performance under this paragraph shall immediately notify the other party of the force majeure event preventing performance as soon as practical under the circumstances and shall confinn the same in writing within five (5) days thereafter. 19) Entire Ag reement. The Agreement constitutes the entire agreement between the parties and replaces and supersedes any prior written or oral understandings or agreements between the parties that may have existed with respect to the subject matter hereto. 20) Amendments ; Modifications. This Agreement may only be amended or modified by a writing executed by each of the parties hereto. 21) Assi gnment. This Agreement shall not be assigned by Company without Pasco's prior written consent. 22) Construction. The language in all parts of the Agreement shall in all cases be construed as a whole according to its fair meaning, strictly neither for nor against any party hereto, and without implying a presumption that the terms hereof shall be more strictly construed against one party by reason of the rule of construction that a document is to be construed more strictly against the person who himself or through his agent prepared the same, it being agreed that representatives of both parties have participated in the preparation hereof. 23) Severability. In the event that one or more of the provisions contained in this Agreement shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, legality or unenforceability shall not affect any of the other provisions contained in the Agreement, which provisions shall remain in full force and effect. 24) Benefit. Subject to the provision described above against assignment, all covenants, conditions and agreements contained herein shall extend to and be obligatory upon the heirs, successors, administrators , executers, and assigns of the respective parties. 25) Dispute Resolution. In the event of a dispute between the parties regarding the interpretation, breach, or enforcement of the Agreement, the parties shall first meet in a good faith effort to resolve the dispute by themselves or with the assistance of a mediator. The remaining dispute shall be resolved by arbitration pursuant to RCW 7 .04A, as amended, the Mandatory Rules of Arbitration (MAR), with all parties waiving the right of a jury trial upon de novo review, with the substantially prevailing party being awarded is reasonable attorney fees and costs against the other. 26) Waivers. The failure of either party to require the performance of any term of this Agreement or a waiver by either party of any breach under this Agreement, shall not prevent subsequent enforcement of such term, nor be deemed a waiver of any subsequent breach. 27) Inde pendent Contractor Status and Obligations. a) Indep endent Contractor. It is the express intention of the parties that Company perform the Services as an independent contractor. Nothing in this Agreement will in any way be construed to constitute Company or any of Company Related Parties as an agent, employee, or representative of Pasco. Without limiting the generality of the foregoing, Company is not authorized to bind Pasco to any liability or obligation or to represent that Company has any agency or other authority on behalf of Pasco. Company is obligated to report to the appropriate governmental and quasi-governmental authorities as income all compensation received by Company under this Agreement. Company shall comply with all Laws with respect to its Related Parties performing Services, including the Fair Labor Standards Act, the Immigration Reform and Control Act, state and federal fair employment and anti-discrimination Laws, state and federal wage and hour and wage payment Laws, the Employee Retirement Income Security Act, and the Affordable Care Act. b) No Payroll or Emplo yment Taxes. Company solely is responsible for all payroll-related obligations for its Related Parties performing any Services and shall bear sole responsibility for paying state prevailing wages per RCW 39.12 to such Related Parties, for all applicable federal and state income withholdings, for any applicable workers compensation benefits, and for any unemployment compensation. The URL to the Department of Labor & Industries prevailing wage rates can be found at: (http://www.lni.wa.Q.ov/TradesLicensing/PrevWage/default.as p). The Company must submit the Intent and Affidavit forms, approved by the Department of Labor and Industries. Intent forms must be filed prior to the start of work, if possible. Affidavits are filed after the completion of the work. The City may not make any payments where the Contractor and all sub-contractors have not submitted the approved Intent form; nor may not release retainage until the Contractor and all sub-contractors have submitted the approved Affidavit forms. No payroll or employment Taxes of any kind shall be withheld or paid with respect to payments to Company, as Company shall be solely responsible for any Tax consequences of any nature whatsoever applicable to Company or any of its employees by reason of this Agreement and the relationship established under this Agreement (except as specifically set forth otherwise in this Agreement), regardless of the person or entity on whom such Taxes are imposed under Laws, and Pasco shall not be responsible for the payment or withholding of any federal, state, or local Taxes or contributions imposed under any employment insurance, social security, payroll and employment Tax, income Tax, or other Tax Laws with respect to Company's performance of Services, including FICA, FUTA, federal personal income Tax, state personal income Tax, state disability insurance Tax, state unemployment insurance Tax, and state worker's compensation insurance Tax. c) No Benefits. Neither Company nor any of its Related Parties are entitled to any employee benefits from Pasco. No benefits, including health insurance benefits, retirement plan benefits, vacation pay, or sick pay, shall be provided by Pasco to Company or its Related Parties, all of which shall be provided by Company in accordance with its own policies and in compliance with Laws. If an employee of Company is reclassified by a state or federal agency or court as an employee of Pasco, Company's employee will become a reclassified employee and will receive no benefits except those mandated by Laws, even if by the terms of Pasco's benefit plans in effect at the time of the reclassification Company's employee would otherwise be eligible for benefits. d) No Workers' Com pensation / Unem plo yment Com pensation. No workers' compensation or unemployment compensation insurance has been or will be obtained by Pasco on account of Company or its employees, as Company shall provide workers' compensation coverage and Professional Services Agreement -Process Water Reuse Facility Holding Pond Sediment Removal Page 6 of6 unemployment compensation for its own Related Parties in connection with their performance of Services under this Agreement. e) Eli gibili ty Verification. For all Services performed within the United States, Company shall ensure that its and its subcontractors' personnel are authorized to work in the United States, and Company will complete and maintain records of the Immigration and Naturalization Service Employment Eligibility Verification Form I-9 's ("I-9 's") for all such personnel ( or will require its subcontractors to do so, as applicable), and Company represents and warrants that it does not knowingly employ (including via any subcontractors) any personnel who are not authorized to work in the United States and will require its subcontractors performing any Services to make the foregoing representation and warranty. f) Prior Pasco Emp loy ees. Company will not use any prior Pasco employee to perform Services for a period of one year after such person was employed by Pasco. 28) Insurance. Company shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by Company, its agents, representatives, employees, or subcontractors. 28.1 Minimum Scope of Insurance. Company shall obtain insurance of the types described below: 28.1.1 Automobile Liability insurance covering all owned, non-owned, hired and leased vehicles. Coverage shall be written on Insurance Services Office (ISO) form CA 00 01 or a substitute form providing equivalent liability coverage. If necessary, the policy shall be endorsed to provide contractual liability coverage . 28.1.2 Commercial General Liability insurance shatt be written on ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, independent contractors and personal injury and advertising injury. The City of Pasco shall be named as an insured under the Company's Commercial General Liability insurance policy with respect to the work performed for Pasco. 28.1.3 Workers' Compensation coverage as required by the Industrial Insurance laws of the State of Washington. 28.1.4 Professional Liability insurance appropriate to Company's profession. 28.2 Minimum Amounts oflnsurance. Company shall maintain the following insurance limits: 28.2.1 Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident. 28.2.2 Commercial General Liability insurance shall be written with limits no less than: $1,000,000 each occurrence; $2,000,000 general aggregate; or $___ each occurrence; and $ ____ general aggregate 28.2.3 Professional Liability insurance shall be written with limits no less than: [2J $1,000,000 per claim; t8J $1,000,000 policy aggregate limit; or • $ ____ per claim; and $ ____ per policy aggregate limit 28.3 Other Insurance Provisions. The insurance policies are to contain, or be endorsed to contain, the following provisions for Automobile Liability, Professional Liability, and Commercial General Liability insurance: 28.3.1 Company's insurance coverage shall be primary insurance as respects Pasco. Any insurance, self-insurance, or insurance pool coverage maintained by Pasco shall be excess of Company's insurance and shall not contribute with it. 28.3.2 Company's insurance shall be endorsed to state that coverage shall not be cancelled by either party, except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to Pasco. 28.4 Acce ptability of Insurers. Insurance is to placed with insurers with a current A.M. Best rating of not less than A: VII. 28.5 Verification of Covera ge. Company shall furnish Pasco with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of the Company before commencement of the work. 29) EEO Compliance: Pasco is an equal opportunity employer. Company will not discriminate against any employee or applicant for employment in violation of Laws, including on a basis of race, color, religion, national origin, ancestry, age, disability, protected veteran status, sex, sexual orientation, gender identity, genetic information, or any other protected status covered by Laws ("Personal Status"). To the extent required by Laws, Company shall take affirmative actions to employ and advance in employment individuals without regard to Personal Status and will comply will all employment related obligations associated with government contracting. Company warrants and represents that it will fully comply with all Department of Labor and EEOC Laws, including record keeping requirements. 30) Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original and all of which together will constitute the same agreement, whether or not all parties execute each counterpart. 31) Choice of Law. The parties agree that this Agreement will be interpreted according to the laws of the State of Washington, excluding its choice of law rules. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. City of Pasco BioTerra Environmental Engineering Inc. B ~ ~ ,City Manager BY:~ Andrew Schmitt