HomeMy WebLinkAbout2012-186 Housing - Triangle J Council of Gov $45,000-�� -/
[Departmental Use Only]
TITLE CDBG NC Tomorrow
FY 2011 -2012
NORTH CAROLINA
SERVICES AGREEMENT UNDER $90,000.00
ORANGE COUNTY
This Services Agreement (hereinafter "Agreement"), made and entered into this 20th day of
June, 2012, ( "Effective Date ") by and between Orange County, North Carolina a body politic
and corporate of the State of North Carolina (hereinafter, the "County ") and Triangle J Council
of Governments, (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 Agreement is for services to be rendered by Provider to County with respect
to 2011 North Carolina Tomorrow Program Community Development Block
Grant #11 -C -2278 ( "CDBG ").
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
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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.
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. The Services to be rendered pursuant to this Agreement are as follows
(fully describe services to be provided): The Provider shall perform services necessary
as described in the CDBG Application and Grant Agreement, which is attached as
Exhibits A and B respectively and hereby incorporated within this Agreement, for to
prepare the North Carolina Tomorrow Comprehensive Economic Development Plan for
Region J.
4. Duration of Services
a. Term. The term of this Agreement shall be from June 15, 2012 to December 31, 2012.
b. Scheduling of Services.
i) The Provider shall schedule and perform his activities in a timely manner.
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
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2
resources and working overtime, as necessary, to perform his services in
accordance with the approved project schedule at no additional cost to the
County.
iii) The Commencement Date for the Provider's Basic Services shall be June 15,
2012.
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
including reimbursable expenses as specified in section 5(c), below. The maximum
amount payable for Basic Services is Forty Five Thousand Dollars ($45,000). 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.
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 included in 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 mileage, 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 (Tara Fikes) 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
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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.
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
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.
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S. 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.
10. Termination
a. Termination for Convenience of the County. This Agreement may be terminated without
cause by the County and for its convenience upon fifteen (15) 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 fifteen (15) 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.
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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, and with federal laws and regulations required by the North Carolina
Department of Commerce Small Cities CDBG 2011 NC Tomorrow Program cited herein.
Throughout the term of this agreement, the Council shall comply with all applicable terms
of the NC Tomorrow Grant Agreement between the North Carolina Department of
Commerce Division of Community Assistance, as approved by the Orange County Board
of Commissioners on May 1, 2012, and signed by the County on May 1, 2012, and all
applicable laws, rules, regulations and requirements, including but not limited to the
procurement standards set forth in 4 N.C. Administrative Code 19L .0908 as may be
applicable.
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 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. Any and all work products from services, information, and
reporting materials by Provider during this engagement relative to the duties under this
Agreement shall be the exclusive property of the County; and Provider hereby assigns all
right, title, and interest the same to the County. Upon the expiration of earlier
termination of this Agreement, or whatever requested by the County, Provider shall
immediately deliver to the County all such files, records, documents, specifications,
information, and other items in its/her/his possession or control.
g. Findings Confidentiality. Any reports, information, data, etc., given to or prepares or
assembled by the Provider under this contract which the County request to be kept
confidential shall not be made available to any individual or organization other than the
County, unless the Provider is required by law to make said item or items available. In
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addition, the parties acknowledge and agree that the very nature of an independent
contracting relationship exposes to County to an even greater risk of improper disclosure
of confidential information. Therefore, Provider agrees not only to not disclose any of
this information, but to take all measures necessary to insure than an inadvertent
disclosure of such information is not possible.
h. 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.
i. Notices. Any notice required by this Agreement shall be in writing and delivered by
certified or registered mail, return receipt requested to the following:
County Provider
Orange County Triangle J Council of Governments
Attention: Frank W. Clifton Jr., County Manager Kirby Bowers, Executive Director
P.O. Box 8181 4307 Emperor Blvd., Suite 110
Hillsborough, NC 27278 Durham, NC 27703
Lobbying Clauses. Required by Section 1352, Title 31, U.S. Code
1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the
undersigned, to any person for influencing or attempting to influence an officer or
employee of any agency, a Member of Congress, an officer or employee of Congress,
or an employee of a Member of Congress in connection with the awarding of any
Federal contract, the making of any Federal grant, the making of any Federal loan, the
entering into of any cooperative agreement, and the extension, continuation, renewal,
amendment, or modification of any Federal contract, grant, loan, or cooperative
agreement.
2) If any funds other than Federal appropriated funds have been paid or will be paid to any
person for influencing or attempting to influence an officer or employee of any agency,
a Member of Congress, an officer or employee of Congress, or an employee of a
Member of Congress in connection with this Federal contract, grant, loan, or
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cooperative agreement, the undersigned shall complete and submit Standard Form -
LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions.
3) This is a material representation of fact upon which reliance was placed when this
transaction was made or entered into. Submission of this certification is a prerequisite
for making or entering into this transaction imposed by section 1352, title 31, U.S.
Code. Any person who fails to file the required certification shall be subject to a civil
penalty of not less than $10,000 and not more than $100,000 for each such failure.
k. Conflict of Interest. Interest of Members Officers or Employees of the Recipient,
Members of Local Governing Body, or Other Public Officials No member, officer, or
employee of the recipient, or its agents, no member of the governing body of the locality
in which the program is situated, and no other public official of such locality or localities
who exercise any functions or responsibilities with respect to the program during his
tenure or for one year thereafter, shall have any financial interest, direct or indirect, in
any contract or subcontract, or the proceeds thereof, for work to be performed in
connection with the program assisted under this agreement. Immediate family members
of said members, officers, employees, and officials are similarly barred from having any
financial interest in the program. The recipient shall incorporate, or cause to be
incorporated, in all such contracts or subcontracts, a provision prohibiting such interest
pursuant to the purpose of this section.
1. Default, Remedies. This Agreement may be terminated by a non - defaulting party upon an
event of default hereunder, after written notice thereof and thirty (30) days grace period
in which the defaulting party may act to cure. As used herein, the term "an event of
default" shall mean and refer to a failure or act of omission by either party with respect
to any undertaking, obligation, covenant or condition as set forth in this Agreement.
With respect to any event of default, the non - defaulting party may exercise any right
available to it at law or in equity with respect to such default.
m. Non - discrimination Clause- Section 109 Housing and Community Development Act of
1974. No person in the United States shall on the ground of race, color, national origin or
sex be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity funded in whole or in part with funds
available under this title.
n. Age Discrimination Act of 1975 as Amended Nondiscrimination on the Basis of Age.
No qualified person shall on the basis of age be excluded from participation in, be denied
the benefits of, or otherwise be subjected to discrimination under any program or activity
which receives or benefits from Federal Financial assistance.
o. Section 504 of the Rehabilitation Act of 1973 as Amended- Nondiscrimination on the
Basis of Handicap.
No qualified handicapped person shall, on the basis of handicap be excluded from
participation in, be denied the benefits of, or otherwise be subjected to discrimination
under any program or activity which receives or benefits from Federal Financial
assistance.
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p. Copeland "Anti- Kickback" Act Provision
All contracts and subgrants for construction or repair shall include a provision for
compliance with the Copeland "Anti- Kickback" Act (18 USC 874) as supplemented in
Department of Labor regulations (29 CFR, part 3). This Act provides that each Council
or subgrantee shall be prohibited from inducing, by any means, any person employed in
the construction, completion, or repair of public work, to give up any part of the
compensation to which he is otherwise entitled. The grantee shall report all suspected or
reported violations to the grantor agency.
q. Access to Records and Record Retainage In general, all official project records and
documents must be maintained during the operation of this project and for a period of
five years following close out in compliance with 4 NCAC 19L Rule .0911, Record
keeping.
The North Carolina Department of Commerce, the North Carolina Department of the
Treasurer, U.S. Department of Housing and Urban Development, and the Comptroller
General of the United States, or any of their duly authorized representatives, shall have
access to any books, documents, papers and records of the Administering Agency which
are pertinent to the execution of this Agreement, for the purpose of making audits,
examinations, excerpts and transcriptions in compliance with the above Rule.
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: TRIANGLE J COUN OF
By. / I �n� / /� B : l)TM�,�TT
Frank W. 01rifton, 06ifity Manager
ve Director
This insyument has been pr ved as to technical content.
a L. Fikes, Department Director
This instrument has been pre - audited in the manner required by the Local Government Budget
and F'scal Control Act.
0 4,t� J.. A,---
Office of the Finance Director
This instrument has been approved as to fo
Office of the County Attorney
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