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HomeMy WebLinkAbout2013-047 Planning - McGill Associates - Engineering Consultant $94,200 [Departmental Use Only] TITLE McGowan Creek Interceptor Engineering FY 2013 NORTH CAROLINA SERVICES AGREEMENT OVER $90,000.00 RFP — NO REIMBURSABLE EXPENSES ORANGE COUNTY This Services Agreement (hereinafter"Agreement"), made and entered into this 24th day of January, 2013, ("Effective Date") by and between Orange County,North Carolina a body politic and corporate of the State of North Carolina (hereinafter, the "County") andMcGill Associates, (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): Engineering Services for the McGowan Creek Interceptor project as described in the Letter Proposal for Engineering Services from McGill Associates dated December 17, 2012, hereby incorporated by reference into this contract. 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 1 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. 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 in the Provider's proposal, which are fully incorporated and integrated herein by reference. 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, Provider's Proposal together with attachments, if any. Revised July 2010 2 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. Complete Project Area Survey 2/15/2013 2. Complete Sewer Routing and Preliminary Design 3/1/2013 3. Easement Map Preparation 3/15/2013 4. Complete Design 4/26/2013 5. Plans Submitted for Permitting 4/30/2013 6. Permits Approved 7/31/2013 7. Bidding Phase Complete 10/15/2013 8. Construction Phase Begins 12/1/2013 9. Construction Phase Ends 8/1/2014 10. Project Closeout, As-Builts and Final Certification 9/1/2014 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. Tenn. The term of this Agreement shall be from January 24, 2013 to September 1, 2014, b. Schedulina 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. iii) The Commencement Date for the Provider's Basic Services shall be January 24, 2013. Revised July 2410 3 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 Ninety Four Thousand, Two Hundred Dollars ($94,200.04). 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. 6. Responsibilities of the County a. Cooperation and Coordination. The County has designated the (County Staff Engineer) 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 July 2010 4 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 $3,000,000 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. 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. 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. Revised July 2010 5 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. 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. Revised July 2010 6 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 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 Provider's Name &Address Attention: Kevin Lindley, PE Mr. Douglas Chapman, PE Planning Department Senior Project Manager P.O. Box 8181 McGill Associates, P.A. Hillsborough,NC 27278 1236 19th Street, Lane NW Hickory,NC 28601 Revised July 2010 7 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: PRO ER:** By: By: y Lo Barry Jacobs, air ;dE LdVingood Orange Count o Co issioners Vice President Attest: Do a o e oard [SEAL] otth SO This instrugaent has been approved w to technical content. C� lg Ben e 'ct, Planning and nspections Department Director This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act. All Office of the Finance Director This instrumont has b en approved as to form and legal sufficiency. Of of the County Attorney Revised July 2010 8 DATE (MM/DD/YYYY) ACQRD° CERTIFICATE OF LIABILITY INSURANCE 01/14/2013 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Phone: (336)47&9762 Fax: (336)475.9764 CONTACT Insurance Service Corp. f America INSURANCE SERVICE CORP.OF AMERICA PHONE p FAX 24 SALEM STREET ac No Ext: 336 475-9762 ac No: (336)475-9764 THOMASVILLE NC 27360 E-MAL anet@lscofa.com ADDRESS: janet@lscofa.com INSURER(S)AFFORDING COVERAGE NAIC# INSURER :Hanover Insurance Group 22292 INSURED MCGILL ASSOCIATES,PA INSURERS 55 BROAD ST C ASHEVILLE NC 28801 D: E F COVERAGE S CERTIFICATE NUMBER: 7312 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION 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, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE ADD'L SUBR POLICY EFF POLICY EXP LIMITS LTR INSR WVD POLICY NUMBER MIWD (MM1DDrYYYY) GENERAL LIABILITY EACH OCCURRENCE $ DAMAGE TO RENTED $ IkMERCIAL GENERAL LIABILITY PREMISES(Ea occurence) CLAIMS-MADE F1 OCCUR MED.EXP(Any one person) $ PERSONAL&ADV INJURY $ GENERAL AGGREGATE $ GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMP/OP AGG $ POLICY PRO LOC $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT (Ea accident) $ ANY AUTO BODILY INJURY(Per person) $ ALL OWNED ffUTOS CHEDULED BODILY INJURY(Per accident) $ AUTOS HIRED AUTOS ON-OWNED PROPERTY DAMAGE $ UTOS (per accident) UMBRELLA LIAB OCCUR EACH OCCURRENCE $ EXCESS LIAe HCLAIMS-MADE AGGREGATE $ DED I RETENTION$ $ WC STA7U- O WORKERS COMPENSATION TORY LIMBS ER R $ AND EMPLOYERS' LIABILITY ANY PROPRIETORMARTNERIEXECUTIVE Y/N E.L.EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? N/A (Mandatory in NH) E.L.DISEASE-EA EMPLOYEE $ If yes,describe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $ A PROFESSIONAL LIABILITY LHR9434119-00 01/23/12 01/23/13 $3,000,000 Each Claim $3,000,000 Annual Aggregate DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES(Attach ACORD 101,Additional Remarks Schedule,if more space Is required) CERTIFICATE HOLDER CANCELLATION Orange County SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE 200 South Cameron Street THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Hillsborough NC 27278 ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE Attention: Candice H.Tickle ACORD 25(2010105) ©1988-2010 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD