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HomeMy WebLinkAbout2011-057 AMS - Reece Noland McElrath Engineer for Link GSC Geothermal Analysis & Partial Design Services~ct rc ~as~'.~1y ~ s~ [Departmental Use Only] TITLE GSHP Design Svcs FY NORTH CAROLINA SERVICES AGREEMENT UNDER $90,000.00 RFP -WITH REIMBURSABLE EXPENSES ORANGE COUNTY This Services Agreement (hereinafter "Agreement"), made and entered into this 11~' day of March, 2011, ("Effective Date") by and between Orange County, North Carolina a body politic and corporate of the State of North Carolina (hereinafter, the "County") andReece, Noland, & McElrath, Inc., (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 (insert type of project): Community Geothermal feasibility study; and construction document preparation/bidding services/construction administration for the EECBG funded Link Center Meeting Room project. The Contract Documents include attached RFP #5168, RFP #5168 Addendum 1 dated 11/11/10, and Proposal dated 2/24/11 (Attachment A); Attachment B, entitled "Geothermal HVAC System for the John M. Link Government Services Center"; and subsequent Design Documents, Specifications, Analysis and Addenda related to the project. 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. Revised July 2010 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. 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. '~~N ~' c..~-r8..4cz Do~v.•.~.~s-r5 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 (the "RFP") "RFP Number 5168 for "Professional Engineering Services -Community Geothermal System(s)" issued October 28, 2011, and the Provider's proposal, which are fully incorporated and integrated herein by reference together with Attachments A: RFP #5168 and RFP #5168 Addendum #1 issued 11/11/10; B:Geothermal HVAC system for the "John M. Link Government Services Center; and subsequent Revised July 2010 2 Design Documents, Specifications, Analysis, Reports, and Addenda related to this project (designate all attachments). In the event a term or condition in any document or 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, Provider's Proposal together with attachments. ii) The Basic Services will be performed by the Provider in accordance with the following schedule: (Insert task list and milestone dates) Task Milestone Date 1. Part A: Link Analysis 4/18/11 2. Part A: Wellfield Plan 4/18/11 3. Part A: Out to Bid 5/4/11 4. Part A: Bid Opening 6/1/11 5. Part A: Bid Award 6/21/11 6. Part A: NTP 7/1/11 7. Part B: Completion 9/1/11 8. Part A: Completion 12/31/11 9. 10. 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 11, 2011 to 12/31/2011. b. Schedulin;; 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 July 2010 3 iii) The Commencement Date for the Provider's Basic Services shall be March 11, 2011. 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 except reimbursable expenses as specified in section 5(c), below. The maximum amount payable for Basic Services is Fifty Five Thousand Dollars ($55,000.00). 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. (For example, if there are 10 Project Tasks with Milestone Dates then Provider may invoice for the first 10% of the whole upon County's acknowledgement of the satisfactory completion of Task one. Upon the County's acknowledgement that the second Task has been satisfactorily completed Provider may invoice for the next 10% of the whole.) 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. c. Reimbursable Expenses Reimbursable expenses are in addition to the fees for Basic Services and are for the following expenditures to the extent reasonable and actually incurred by the Provider with respect to the Project: i) Actual expenditures for postage, reproductions, photography, and long distance telephone charges directly attributable to this Project. ii) The actual cost of reproduction of reports, plans and specifications excluding documents for exclusive use by the Provider. iii) The Provider shall not be entitled to any mark-up on actual expenses incurred. iv) Reimbursable expenses shall be compensated by the County along with invoices for Basic Services provided by Provider. Payment of Reimbursable Expenses shall be subject to Provider's timely submission of valid receipts for any such expenses and approval by the County. Any additional charges not specified herein, must be mutually agreed to in advance by County and Provider and documented in writing with a letter signed by authorized representatives for County and Provider and, subject to budgeted funds. 6. Responsibilities of the County a. Cooperation and Coordination. The County has designated the (Pamela Jones) 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. Revised July 2010 4 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. b. Insurance Rating. The minimum insurance rating for any company insuring the Provider shall be Best's A. If the Provider does not meet the insurance requirements the County's Risk Manager must be consulted prior to finalizing this Agreement. 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 NOTE: Insert coverage limits required by Risk Man ger if applicable. 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. Revised July 2010 5 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. Changis 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. 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 Revised July 2010 6 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. 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. Ownership 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 Revised July 2010 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: Pam Jones P.O. Box 8181 Hillsborough, NC 27278 Provider's Name & Address RN&M Engineers, Inc. 409 North Haywood Street Waynesville, NC 28786 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: PROVIDER: By; 3 -L, 3 ~ Lt By: Fr ion Manager ~-~. l~ Printe Name d Tit~e----~ ~c-u.v~~ ~~ e~~J This instrument has been approved as to technical content. ~~ ~ Pam Jones, epartment Director This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act. ~, J~~ Office of the Finance Director This inst ment has been approved as to form and legal sufficiency. Office of the o ty Attorney Revised July 2010 CERTIFICATE OF INSURANCE DATE 03/03/11 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHT UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT =AMEND, PROFESSIONAL DESIGN INSURANCE COMPANIES AFFORDING COVERAGE MANAGEMENT CORPORATION Cprgp~y A Zurich American Insurance Company O. BOX 501130 P LETTER . INDIANAPOLIS, IN 46250 Phone: (317) 570-6945 Fax: (317) 579-6410 _ LETTER B INSURED COMPANY C Noland & McElrath, Inc. Reece LETTER , PO Box 540 COMPANY D 409 N. Haywood St. LETTER Waynesville, NC 28786 COMPANY E LETTER COVERAGES THIS IS TO CERTIFY THAT POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURID NAME ABOVE FOR THE POLICY PERT INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDTI'ION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSION, AND CONDTION OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. CO TYPE OF INSURANCE POLICY NUMBER POLICY POLICY LIMITS EFFECTIVE EXPIRATIO LTR DATE N NERAL AGGREGATE $ GENERAL LIABILITY GE PRODUCTS-COMP/OPS AGGREGATE $ [ ]COMMERCIAL GENERAL LIABII.ITY PERSONAL & ADVERTISING INJURY $ [ ] [ ]CLAIM MADE [ ]OCCURRENCE EACH OCCURENCE $ [ ]OWNER'S & CONTRACTORS PROTECTIVE FIRE DAMAGE (ANY ONE FIItE) $ [ ] NIED.EXPENSE (ANY ONE PERSONI $ fl CSL $ ITY AUTOMOBILE L1ABII , BODILY INJURY $ I ]ANY AUTO (PER PERSON) (]ALL OWNED AUTOS BODII.Y INJURY $ [ ]SCHEDULED AUTOS (PER ACCIDENT) [ ]HIRED AUTOS [ ]NON-OWNED AUTOS PROPERTY $ [ ] GARAGE LIABII.IT'Y DAMAGE rl EACH AGGREGATE EXCESS LIABILITY OCCURRENCE [ ]UMBRELLA FORM STATUTORY $ [ ]OTHER THAN UMBRELLA WORKERS' COMPENSATION $ (EACH ACCIDENT) $ (DISEASE-POLICY LIMIT) AND $ (DISEASE-EACH EMPLOYEE) EMPLOYER LIABILITY A OTHER PROFESSIONAL LIABII.ITY EOC5916729-OS 10/16/2010 10/162011 ~0000~0 O IN A'~~G~ AND [X] ARCHITECTS AND ENGINEERS DESCRIPTION OF OPERATIONS/LOCATION/VEHICLES/SPECIAL ITEMS SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED 'ERTIFICATE HOLDER BEFORE THE EXPII2ATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAII. 30 DAYS WRITTEN NOTICE TO TIC Orange County CERTIFICATE HOLDER NAMID TO THE LEFT, BUT FAILURE TO P.O. Box 8181 MAII. SUCH NOTICE SHALL IIvIPOSE NO OBLIGATION OR LIABILITY Hillsborough, NC 27278 OF ANY KIND UPON THE COMPANY, ITS AGENTS OR Attn: Pam Jones REPRESENTATIVES. AUTHORIZED REPRESENTATIVE CORD 25-S (1195) ~M+ ~ ~tA, ~ ~.~~ ~