HomeMy WebLinkAboutAgenda - 09-17-2013 - 5e 1
ORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: September 17, 2013
Action Agenda
Item No. 5-e
SUBJECT: Emergency Debris Removal and Processing Services Agreement
DEPARTMENT: Solid Waste Management PUBLIC HEARING: (Y/N) No
ATTACHMENT(S): INFORMATION CONTACT:
Debris Removal and Processing Michael Talbert, 245-2153
Agreement Gayle Wilson, 968-2885
PURPOSE: To approve an agreement between Orange County and Ceres Environmental
Services, Inc. for the purpose of providing a secondary resource for Emergency Debris Removal
and Processing Services.
BACKGROUND: The Solid Waste Management Department along with Orange County
Emergency Management (OCEM) prepared a needs-assessment for storm debris management
utilizing the Federal Emergency Management Agency's (FEMA) modeling to estimate quantities
of waste materials that could possibly be generated in a moderate-to-heavy storm event
(hurricane, ice storm, tornado, etc.). The quantities derived from this analysis indicate a
magnitude of potential debris that would likely overwhelm the County's current capabilities,
which will be significantly diminished following the closing of the landfill and the associated staff
reorganization. The odds of a major storm event happening any given year is rather small, but
the inevitability of a major event at some point is a certainty.
A recommended course of action that would provide Orange County the necessary debris
management capability to adequately respond to this type of event was developed by the Solid
Waste Management Department, with OCEM providing assistance and additional guidance
provided by the NC Department of Crime Control and Public Safety. Approval of this agreement
will put in place the final key element of the County's emergency storm debris management
preparation strategy and another means by which to facilitate FEMA reimbursements.
In June 2011 the Board of Commissioners (BOCC) approved an agreement with Neel-Schaffer,
Inc. to provide Disaster Management, Monitoring and Recovery Services. In December 2012
the BOCC approved the location of two storm debris management sites that received
conditional approval by the NC Division of Waste Management in May 2013. In March 2013 a
Memorandum of Agreement was executed with the NC Department of Transportation that
allows emergency cooperation during a federally declared event. On June 18, 2013 the BOCC
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approved an agreement with Phillips & Jordon, Inc. to perform primary Debris Removal and
Processing Services. At the June 18th meeting staff indicated its intention to return in
September to recommend a secondary contractor in order to provide a greater level of
preparedness and reserve capability than a single contractor. While it is the County's intention
to utilize the primary contractor from North Carolina to the fullest extent, in the event that the
company cannot fully provide the necessary support due to being overwhelmed by the event, it
is anticipated that the secondary contractor, located outside the area, will be able to provide the
necessary resources to fulfill the County's needs,
Requests for proposals were prepared for Debris Removal and Processing Services. Sealed
proposals were received from five (5) firms:
Phillips & Jordan, Inc. — Robbinsville, NC
Ceres Environmental Services, Inc. — Sarasota, FL
Omni Pinnacle, LLC — Pearl River, LA
Helsley R. Lee Contracting, Inc. — Picayune, MS
Ralph Hodge Construction Company—Wilson, NC
After a thorough evaluation of the remaining proposals, the Solid Waste Management
Department recommends that Ceres Environmental Services, Inc. be awarded the secondary
contract for Debris Removal and Processing Services, effective October 1, 2013. Criteria to
which each firm was evaluated against included Qualifications and Experience of Firm,
Knowledge of the County and Local Emergency Management Needs, References and Cost.
FINANCIAL IMPACT: The primary purpose of the agreement is to ensure that adequate
staffing and equipment resources are available in the event of a severe storm event to
effectively manage large quantities of debris that is likely to be generated. There are no
expenses anticipated related to this agreement without an emergency declaration by the Chair
of the Board of County Commissioners.
RECOMMENDATION(S): The Manager recommends that the Board approve the agreement
with Ceres Environmental Services, Inc. for Emergency Debris Removal and Processing
Services and authorize the Chair to sign the agreement.
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[Departmental Use Only]
TITLE
FY
NORTH CAROLINA
SERVICES AGREEMENT OVER $90,000.00
RFP —WITH REIMBURSABLE EXPENSES
ORANGE COUNTY
This Services Agreement (hereinafter "Agreement"), made and entered into this 1st day of
October, 2013, ("Effective Date") by and between Orange County, North Carolina a body
politic and corporate of the State of North Carolina (hereinafter, the "County") and Ceres
Environmental Services, 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): Removal,
Reduction, Recycling and/or Disposal of Debris
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
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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 as specified in the County's Request for Proposals (the "RFP") "RFP
Number 5193 for "Removal, Reduction, Recycling and/or Disposal of FEMA
Eligible Debris" issued May 3, 2013, and the Provider's proposal, which are fully
incorporated and integrated herein by reference together with Attachments
Addendum 41 (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)
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Task Milestone Date
1. n/a
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 October 1, 2013 to September 30, 2018.
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.
iii) Upon written agreement of the parties his Agreement may be renewed for one
additional five-year term.
iv) The Commencement Date for the Provider's Basic Services shall be October 1,
2013.
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. Subject to the unit and
services costs shown in Provider's Proposal the maximum amount payable for Basic
Services is six million Dollars ($6,000,000.00). 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%
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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 (Solid Waste
Management Director Gayle Wilson) 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
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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 Manager 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.
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
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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.
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
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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
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: Gayle Wilson Ceres Environmental
P.O. Box 8181 Services, Inc.
Hillsborough, NC 27278 Attention: David Preus
6960 Professional Parkway
Sarasota, FL 34240
[SIGNATURE PAGE TO FOLLOW]
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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: By:
Barry Jacobs, Chair
Orange County Board of Commissioners Printed Name and Title
Attest:
Donna Baker, Clerk to the Board
[SEAL]
This instrument has been approved as to technical content.
Gayle Wilson, Department Director
This instrument has been pre-audited in the manner required by the Local Government Budget
and Fiscal Control Act.
Office of the Finance Director
This instrument has been approved as to form and legal sufficiency.
Office of the County Attorney
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