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HomeMy WebLinkAbout2010-008 Planning - Eno River Desper Geoscience Consulting & Education LLC- Surface Water Quality Monitoring~- ~_ ~~ ~~ yk NORTH CAROLINA ORANGE COUNTY SERVICES AGREEMENT OVER $25,000.00 RFP This Services Agreement (hereinafter "Agreement"), made and entered into this 2°d day of March, 2010, by and between Orange County, North Carolina a body politic and corporate of the State of North Carolina (hereinafter, the "County") and Desper Geoscience Consulting & Education, LLC, (hereinafter, the "Provider"). WITNESSETH: That the County and Provider, for the consideration herein named, do hereby agree as follows: 1. Services a. Scope of Work. i) This Services Agreement ("Agreement") is for professional services to be rendered by Provider to County with respect to: Surface water quality monitoring ii) By executing this Agreement, the Provider represents and agrees that Provider is qualified to perform and fully capable of performing and providing the services required or necessary under this Agreement in a fully competent, professional and timely manner. iii) Time is of the essence with respect to this Agreement. iv) The services to be performed under this Agreement consist of Basic Services, as described and designated in Section 3 hereof. Compensation to the Provider for Basic Services under this Agreement shall be as set forth herein. 2. Responsibilities of the Provider a. Services to be provided. The Provider shall provide the County with all services required in Section 3 to satisfactorily complete the Project within the time limitations set forth herein and in accordance with the highest professional standards. b. Standard of Care. i) The Provider shall exercise reasonable care and diligence in performing services under this Agreement in accordance with the highest generally accepted standards of this type of Provider practice throughout the United States and in accordance with applicable federal, state and local laws and regulations applicable to the performance of these services. Provider is solely responsible for the professional quality, accuracy and timely completion and/or submission of all work related to the Basic Services. Revised January 2010 ii) Provider shall be responsible for all errors or omissions, in the performance of the Agreement. Provider shall correct any and all errors, omissions, discrepancies, ambiguities, mistakes or conflicts at no additional cost to the County. iii) The Provider shall not, except as otherwise provided for in this Agreement, subcontract the performance of any work under this Agreement without prior written permission of the County. No permission for subcontracting shall create, between the County and the subcontractor, any contract or any other relationship. iv) Provider is an independent contractor of County. Any and all employees of the Provider engaged by the Provider in the performance of any work or services required of the Provider under this Agreement, shall be considered employees or agents of the Provider only and not of the County, and any and all claims that may or might arise under any workers compensation or other law or contract on behalf of said employees while so engaged shall be the sole obligation and responsibility of the Provider. v) Provider agrees that Provider, its employees, agents and its subcontractors, if any, shall be required to comply with all federal, state and local antidiscrimination laws, regulations and policies that relate to the performance of Provider's services under this Agreement. vi) If activities related to the performance of this Agreement require specific licenses, certifications, or related credentials Provider represents that it and/or its employees, agents and subcontractors engaged in such activities possess such licenses, certifications, or credentials and that such licenses certifications, or credentials are current, active, and not in a state of suspension or revocation. 3. Basic Services a. Basic Services. i) The Provider shall perform as Basic Services the work and services described herein and as specified in the County's Request for Proposals "RFP Number 5152 for Proposal for Surface Water Quality Monitoring" issued March 26, 2009, which is fully incorporated and integrated herein by reference together with Attachment 1, a map of the proposed sampling locations. In the event a term or condition in any attachment conflicts with a term or condition of this Agreement the term or condition in this Agreement shall control. Should such conflict arise the priority of documents shall be as follows: This Agreement, the County's RFP together with attachments, and Provider's Proposal together with attachments. ii) The Basic Services will be performed by the Provider in accordance with the following schedule: Revised January 2010 2 Task Milestone 1. The County's Water Resource Coordinator, Stormwater Within one Resource Officer, and the Provider will conduct field month of reconnaissance to determine exact sampling locations and GPS contract award. each of the seven (7) proposed sites. If public access is not possible then staff will assist Provider in obtaining permission from the property owner and failing that, select a mutually agreed to alternate sampling point. Sampling locations are listed below. 2. Begin bi-weekly sampling to tota126 sampling events. Within one month of contract award 3. Given a bi-weekly sampling period, ten months will have two End of each sampling events and two months will have three. A two (2) month sample events/month will be invoiced for $4,718.15 and the three (3) sample event months will be invoiced for $7,077.23. 4. Provider will submit a report of each sampling event and End of each results. This will include a brief letter, copy of field book entries, month laboratory report, copy of the chain of custody forms, and a copy of the project Excel spreadsheet with current and historical results. Analytical parameters are listed below. 5. Provider will complete a comprehensive final analytical and Within one interpretive report. Upon completion and submittal of final month of final report provider will submit final invoice for $3,000.00 for a total project cost of $64,336. Sampling Locations • West Fork of Eno River immediately upstream of confluence of West and East Forks • East Fork of Eno River immediately upstream of confluence of West and East Forks • Seven Mile Creek immediately upstream of confluence with Eno River • Eno River immediately upstream of Town of Hillsborough WWTP • Cates Creek immediately upstream of confluence with Eno River • Eno River at downstream limits of Town of Hillsborough • Strouds Creek immediately upstream of confluence with Eno River Revised January 2010 3 Field Parameters • PH using Standard Method 16 423 • Dissolved Oxygen using Standard Method 4500-O-G • Conductivity using EPA Method 120.1 • Temperature using EPA Method 170.1 Laboratory Analytes • Fecal coliform bacteria using Standard Method 9222D • Fecal coliform bacteria using Standard Method 9222D • Chlorophyll a using ASTM Method D37318 or EPA Method 445.0 • Total suspended solids using EPA Method 160.2 • Turbidity using EPA Method 180.1 • Ammonia using EPA Method 350.1 • Total Kjeldahl nitrogen using EPA Method 351.2 • Nitrate/nitrite-nitrogen using EPA Method 353.2 • Total phosphorus using EPA Method 365.1 iii) Should County reasonably determine that Provider has not met the Milestone Dates established in Section 3(a)(ii), County shall notify Provider of the failure to meet the Milestone Date. The County, at its discretion may provide the Provider seven (7) days to cure the breach. County may withhold the accompanying payment without penalty until such time as Provider cures the breach. In the alternative, upon Provider's failure to meet any Milestone Date the County may modify the Milestone Date schedule. Should Provider or its representatives fail to cure the breach within seven (7) days, or fail to reasonably agree to such modified schedule, County may immediately terminate this Agreement in writing, without penalty or incurring further obligation to Provider. This section shall not be interpreted to limit the definition of breach to the failure to meet Milestone Dates. 4. Duration of Services a. Term. The term of this Agreement shall be from March 2010 to March 2011. b. Scheduling of Services i) The Provider shall schedule and perform his activities in a timely manner so as to meet the Milestone Dates listed in Section 3. ii) Should the County determine that the Provider is behind schedule, it may require the Provider to expedite and accelerate his efforts, including providing additional resources and working overtime, as necessary, to perform his services in accordance with the approved project schedule at no additional cost to the County. Revised January 2010 4 iii) The Commencement Date for the Provider"s Basic Services shall be with in one month of contract approval. 5. Compensation a. Compensation for Basic Services. Compensation for Basic Services shall include all compensation due the Provider from the County for all services under this Agreement.. The maximum amount payable for Basic Services is Sixty four thousand three hundred and thirty six Dollars ($64,336). In the event the amount stated on an invoice is disputed by the County, the County may withhold payment of all or a portion of the amount stated on an invoice until the parties resolve the dispute. Payment for Basic Services shall become due and payable in direct proportion to satisfactory services performed and work accomplished. Payments will be made as percentages of the whole as Project milestones as set out in Section 3(a)(ii) are achieved. b. Additional Services. County shall not be responsible for costs related to any services in addition to the Basic Services performed by Provider unless County requests such additional services in writing and such additional services are evidenced by a written amendment to this Agreement. 6. Responsibilities of the County a. Cooperation and Coordination. The County has designated the Erosion Control Supervisor to act as the County's representative with respect to the Project and shall have the authority to render decisions within guidelines established by the County Manager and/or the County Board of Commissioners and shall be available during working hours as often as may be reasonably required to render decisions and to furnish information. 7. Insurance a. General Requirements. The Provider shall purchase and maintain and shall cause each of his subcontractors to purchase and maintain, during the period of performance of this Agreement: i) Worker's Compensation Insurance for protection from claims under workers' or workmen's compensation acts; ii) Comprehensive General Liability Insurance covering claims arising out of or relating to bodily injury, including bodily injury, sickness, disease or death of any of the Provider's employees or any other person and to real and personal property including loss of use resulting thereof; iii) Comprehensive Automobile Liability Insurance, including hired and non-owned vehicles, if any, covering personal injury or death, and property damage; and iv) Professional Liability Insurance, covering personal injury, bodily injury and property damage and claims arising out of or related to the performance under this Agreement by the Provider or his agents, Providers and employees. Revised January 2010 5 b. Insurance Rating. The minimum insurance rating for any company insuring the Provider shall be Best's A. c. Limits of Coverage. Minimum limits of insurance coverage shall be as follows: INSURANCE DESCRIPTION MINIMUM REQUIRED COVERAGE • Worker's Compensation Limits for Coverage A -Statutory State of N.C. Coverage B -Employers Liability $500,000 each accident and policy limit and disease each employee • Commercial General Liability $1,000,000 Each Occurrence; $2,000,000 Aggregate. • Automobile Liability Combined Single Limit $500,000 • Professional Liability $1 million each Occurrence $2 million Aggregate d. Additional Insured. All insurance policies (with the exception of Worker's Compensation and Professional Liability) required under this Agreement shall name the County as an additional insured party. Evidence of such insurance shall be furnished to the County, together with evidence that each policy provides the County with not less than thirty (30) days prior written notice of any cancellation, non-renewal or reduction of coverage. 8. Indemnity a. Indemnity. The Provider agrees to defend, indemnify and hold harmless the County from all loss, liability, claims or expense, including attorney's fees, arising out of or related to the Project and arising from bodily injury including death or property damage to any person or persons caused in whole or in part by the negligence or misconduct of the Provider except to the extent same are caused by the negligence or willful misconduct of the County. It is the intent of this provision to require the Provider to indemnify the County to the fullest extent permitted under North Carolina law. 9. Amendments to the Agreement a. Changes in Basic Services. Changes in the Basic Services and entitlement to additional compensation or a change in duration of this Agreement shall be made by a written Amendment to this Agreement executed by the County and the Provider. The Provider shall proceed to perform the Services required by the Amendment only after receiving a fully executed Amendment from the County. Revised January 2010 6 10. Termination a. Termination for Convenience of the County. This Agreement may be terminated without cause by the County and for its convenience upon seven (7) days prior written notice to the Provider. b. Other Termination. The Provider may terminate this Agreement based upon the County's material breach of this Agreement; provided, the County has not taken all reasonable actions to remedy the breach. The Provider shall give the County seven (7) days' prior written notice of its intent to terminate this Agreement for cause. c. Compensation After Termination. i) In the event of termination, the Provider shall be paid that portion of the fees and expenses that it has earned to the date of termination, less any costs or expenses incurred or anticipated to be incurred by the County due to errors or omissions of the Provider. ii) Should this Agreement be terminated, the Provider shall deliver to the County within seven (7) days, at no additional cost, all deliverables including any electronic data or files relating to the Project. d. Waiver. The payment of any sums by the County under this Agreement or the failure of the County to require compliance by the Provider with any provisions of this Agreement or the waiver by the County of any breach of this Agreement shall not constitute a waiver of any claim for damages by the County for any breach of this Agreement or a waiver of any other required compliance with this Agreement. 11. Additional Provisions a. Limitation and Assignment. The County and the Provider each bind themselves, their successors, assigns and legal representatives to the terms of this Agreement. Neither the County nor the Provider shall assign or transfer its interest in this Agreement without the written consent of the other. b. Governing_Law. This Agreement and the duties, responsibilities, obligations and rights of respective parties hereunder shall be governed by the laws of the State of North Carolina. c. Dispute Resolution. Any and all suits or actions to enforce, interpret or seek damages with respect to any provision of, or the performance or non-performance of, this Agreement shall be brought in the General Court of Justice of North Carolina sitting in Orange County, North Carolina. It is agreed by the parties that no other court shall have jurisdiction or venue with respect to such suits or actions. The Parties may agree to nonbinding mediation of any dispute prior to the bringing of such suit or action. Revised January 2010 d. Entire Agreement. This Agreement, together with the RFP and its attachments and the Proposal and its attachments, represents the entire and integrated agreement between the County and the Provider and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both parties. Modifications may be evidenced by facsimile signatures. e. Severability. If any provision of this Agreement is held as a matter of law to be unenforceable, the remainder of this Agreement shall be valid and binding upon the Parties. f. Ownerslu_ p of Work Product. Should Provider's performance of this Agreement generate documents, items or things that are specific to this Project such documents, items or things shall become the property of the County and may be used on any other project without additional compensation to the Provider. The use of the documents, items or things by the County or by any person or entity for any purpose other than the Project as set forth in this Agreement shall be at the full risk of the County. g. Non-Appropriation. Provider acknowledges that County is a governmental entity, and the validity of this Agreement is based upon the availability of public funding under the authority of its statutory mandate. In the event that public funds are unavailable and not appropriated for the performance of County's obligations under this Agreement, then this Agreement shall automatically expire without penalty to County immediately upon written notice to Provider of the unavailability and non-appropriation of public funds. It is expressly agreed that County shall not activate this non-appropriation provision for its convenience or to circumvent the requirements of this Agreement, but only as an emergency fiscal measure during a substantial fiscal crisis. In the event of a change in the County's statutory authority, mandate and/or mandated functions, by state and/or federal legislative or regulatory action, which adversely affects County's authority to continue its obligations under this Agreement, then this Agreement shall automatically terminate without penalty to County upon written notice to Provider of such limitation or change in County's legal authority. h. Notices. Any notice required by this Agreement shall be in writing and delivered by certified or registered mail, return receipt requested to the following: Orange County Attention: P.O. Box 8181 Hillsborough, NC 27278 Provider's Name & Address Revised January 2010 8 IN WITNESS WHEREOF, the Parties, by and through their authorized agents, have hereunder set their hands and seal, all as of the day and year first above written. ORANGE COUNTY: B ~-~-- ~- y• Valerie Foushee, Chair Orange County Board of Commissioners Attest: Docker, Clerk to the Board ®Cd11~4 a ~4- 5~ n~ PROVIDER: By: Jo S. Desper, Principle Federal ax ID #: approved as to technical content. Director This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act. Clarence G. Grier, Finance Director This instrument has been approved as to form and legal sufficiency. L. Roberts, County Attorney Revised January 2010