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HomeMy WebLinkAboutAgenda - 12-17-1996 - 8b ORANGE COUNTY BOARD OF COMMISSIONERS Action Agenda Item No. ACTION AGENDA ITEM ABSTRACT Meeting Date: December 17, 1996 SUBJECT: Engineering Services Consultant- Efland Estates CDBG Program DEPARTMENT: Housing and Community Development PUBLIC HEARING: (Y/N) BUDGET AMENDMENT: (Y/N) ATTACHMENT(S): INFORMATION CONTACT: Agreement for Engineering Services Tara L. Fikes TELEPHONE NUMBERS: -- ext. 2490 Hillsborough 732-8181 Chapel Hill 968-4501 Durham 688-7331 Mebane 227-21031 PURPOSE: To approve the selection of an engineering consultant for the Efland Estates CDBG Program and authorize the Chair to execute the Consultant Agreement on behalf of the Board contingent upon Attorney and staff review. The Efland Estates CDBG Program is ajoint project between the County and Habitat for Humanity of Orange County which was approved by the BOCC on August 5, 1996. BACKGROUND: Orange County has been granted$145,750 in Community Development Block Grant(CDBG) funds to provide the public water and sewer and street paving for a small, nine(9) single family unit subdivision being developed by Habitat for Humanity of Orange County, Inc. in the Efland community. To accomplish these improvements,the County must engage the services of a qualified engineering consultant for all public facility planning including project design, cost estimates, and supervision during the construction phase. Five(5)engineering firms were invited to submit proposals to provide the consultant services necessary. Responses were received from two(2)firms-Finkbeiner,Pettis, & Stout,P.A. of Greensboro,NC and Coulter,Hart,Jewell, and Thames, P.A. of Durham,NC. An evaluation team consisting of the County Engineer, Purchasing Director, and the Housing/Community Development Director was formed to review these proposals. The proposals were evaluated based on the following criterion: firm and personnel experience with similar projects; demonstrated knowledge of the scope and requirements of the project; detail and specificity of the proposal; and understanding of the needs of the County. Based on this criteria,the evaluation team recommends Coulter, Hart,Jewell, and Thames,PA to provide the necessary consultant services. Services will be provided at a cost not to exceed$28,960.00. The partner in this firm James W. Thames, IV is not related to the County Engineer Paul Thames. r la RECOMMENDATION(S): The Manager recommends: 1) approving the selection of an engineering consultant for the Efland Estates CDBG Program, and 2) authorizing the Chair to execute the Consultant Agreement on behalf of the Board contingent upon Attorney and staff review. 2 AGREEMENT FOR ENGINEERING SERVICES THIS AGREEMENT,made and entered into this day of , 1996, by and between ORANGE COUNTY, hereinafter referred to as the OWNER, and COULTER,HART JEWELL,THAMES P.A. a Corporation organized under the laws of the State of North Carolina, hereinafter referred to as the ENGINEER.. WITNESSETH The OWNER agrees to employ the ENGINEER to furnish engineering services for public facility improvements in the Efland Estates Housing Development Area consisting of approximately 750 lineal feet (L.F.) of 6-inch finished water main, 465 LF of 8-inch gravity sewers, 735 LF of new roadway. The ENGINEER will furnish detailed Engineering services including the final design phase, bidding and award phase and construction phase as outlined in Section I of this Agreement and as authorized by the OWNER. The ENGINEER will also furnish resident project representation and additional services as required and authorized and as outlined in Section 2 of this Agreement. All of the services outlined above will be furnished in accordance with the provisions of Sections 1 and 2,with payment being made in accordance with Section 5. The OWNER and the ENGINEER in consideration of their mutual covenants herein agree in respect of the performance of professional Engineering services by the ENGINEER and the payment for those services by the OWNER,as set forth below. The ENGINEER shall provide professional Engineering services for the OWNER as authorized, serve as the OWNEKs professional Engineering representative in those phases of any Project to which this Agreement applies, and give professional Engineering consultation and advice to the OWNER during the performance of services hereunder. NOW,THEREFORE,the OWNER and the ENGINEER, for and in consideration of matters hereinafter set forth, do hereby agree as follows: SECTION 1 -BASIC SCOPE OF WORK 1.1. General. The ENGINEER shall perform professional services as hereinafter stated which include customary civil, structural. mechanical and electrical Engineering services and customary architectural services incidental thereto. 1.2. Study and Report Phase.-Not applicable to this project 1.3. Preliminary Design Phase. - See item 1.4 1.4 Design Phase. After written authorization to proceed with the Final Design Phase,the ENGINEER shall: 1.4.1 Review and analyze the data contained in previous Engineering reports undertaken by Orange County to determine the sufficiency of the recommended improvements. 1.4.2 Confirm the general scope, extent and character of the Project in consultation with County officials. f 3 1.4.3 Advise the County as to the necessity for obtaining additional services such as geotechnical services and material testing and obtain such services as mutually agreed. Prepare all easement and Right-Of-Way maps for recording with deed descriptions as necessary. 1.4.4. Prepare for incorporation in the Contract Documents, final drawings to show the general scope,extent and character of the work to be furnished and performed by contractors. 1.4.5. Provide technical criteria, written descriptions and design data for the County's use in filing applications for permits with or obtaining approvals of such governmental authorities as have jurisdiction to approve the design of the Project, and assist the County in consultations with the appropriate authorities. Fees for plan review or permits would be the responsibility of the County. 1.4.6. Prepare an itemized opinion of probable cost for the Project, based on the Drawings and Specifications. 1.4.7 Prepare for review and approval by the County and its legal counsel, contract agreement forms, General Conditions, Supplementary, Conditions, bid forms, invitations to bid and instructions to bidders, and assist in the preparation of other related documents. 1.4.8. Within 60 days of authorization to proceed, furnish all copies of the Drawings and Specifications required for review purposes, including two copies for the County. Review the documents in person with the County. 1.5. Bidding Phase After written authorization to proceed with the Bidding Phase,the ENGINEER shall: 1.5.1. Assist the County in advertising for and obtaining bids for construction, materials, equipment and services, maintain a record of prospective bidders to whom Bidding Documents have been issued and receive and process deposits for the Bidding Documents. The cost of advertising shall be borne by the County. The cost for reproducing and mailing the Drawings and Specifications shall be borne by the ENGINEER and all unclaimed deposits shall be retained by same. 1.5.2. Respond to contractors' and suppliers' inquiries regarding interpretation of the Drawings and Specifications. Issue addenda,as necessary to interpret,clarify or expand the Bidding Documents. 1.5.3. Attend the bid opening, prepare and distribute bid tabulation sheets and assist the County in evaluating bids and in assembling and awarding contracts for construction, materials, equipment and services. 1.5.4 Consult with and advise the County as to the acceptability of subcontractors, suppliers and other persons and organizations proposed by the prime contractor, for those portions of the work for which such acceptability is required by the Bidding Documents. 1.5.5 Consult with the County concerning and determine the acceptability of substitute materials and equipment proposed by the contractor when substitution prior to the award of contracts is allowed by the Bidding Documents. 1.6. Construction Phase The Construction Phase will commence with the execution of the first of the prime construction contract(s) (or on such date as may be specified by the OWNER for commencement of the work under any construction contract) and will terminate upon written recommendation by the ENGINEER of final payment to the Contractor(s). During the Construction Phase the ENGINEER shall: f 4 1.6.1. General Administration of Construction Contract - Consult with and advise the OWNER and act as his representative as provided in the General Conditions of the Contract Documents; the extent and limitations of the duties, responsibilities and authority of the ENGINEER as assigned in said General Conditions shall not be modified without the ENGINEER'S written consent; all of the ENGINEER'S instructions to the Contractor(s) will be issued through the ENGINEER who will have authority to act on behalf of the OWNER to the extent provided in said General Conditions except as otherwise provided in writing. Make arrangements for and conduct a preconstruction meeting. 1.6.2. Establish field control and reference points to enable the Contractor(s) to proceed with the layout of the work. 1.6.3. Visits to Site and Observation of Construction. In connection with observations of the work of Contractor(s)while it is in progress: 1.6.3a. The ENGINEER shall make visits ) the site at intervals appropriate to the various stages of construction as the ENGINEER deems necessary in order to observe as an experienced and qualified design professional the progress and quality of the various aspects of the Contractor(s)' work. Based on information obtained during such visits and on such observations, the ENGINEER shall determine in general if such work is proceeding in accordance with the Contract Documents and the ENGINEER shall keep the OWNER informed on the progress of the work. 1.6.3b. The ENGINEER shall not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of such work. The purpose of the ENGINEER's visits to the site will be to enable the ENGINEER to better carry out the Construction Phase, and, in addition, by exercise of the ENGINEER's efforts as an experienced and qualified design professional, to provide for the OWNER a greater degree of confidence that the completed work of the Contractor(s) will conform generally to the Contract Documents and that the integrity of the design concept as reflected in the Contract Documents has been implemented and preserved by the Contractor(s). On the other hand, the ENGINEER shall not,during such visits or as a result of such observations of the Contractor(s)' work in progress, supervise, direct or have control over the Contractor(s)' work nor shall the ENGINEER have authority over or responsibility for the means, methods, techniques, sequences or procedures of construction selected by the Contractor(s), for safety precautions and programs incident to the work of the Contractor(s) or for any failure of the Contractor(s) to comply with laws, rules, regulations, ordinances, codes or orders applicable to the Contractor(s) furnishing mad performing their work. Accordingly, the ENGINEER can neither guarantee the performance of the Construction contracts by the Contractor(s) nor assume responsibility for the Contractor(s)' failure to furnish and perform their work in accordance with the Contract Documents. If in the opinion of the ENGINEER the Contractor fails to carry out their obligations as described in the Contract Documents the ENGINEER will give notice of same to the OWNER and Contractor. 1.6.4 Defective Work. During such visits and on the basis of such observations, the ENGINEER may disapprove of or reject the Contractor(s)' work while it is in progress if the ENGINEER believes that such work will not produce a completed Project that conforms generally to the Contract Documents or that it will prejudice the integrity of the design concept of the Project as reflected in the Contract Documents. 1.6.5. Interpretations and Clarifications. The ENGINEER shall issue necessary interpretations and clarifications of the Contract Documents and in connection therewith prepare work directive changes and change orders as required,which will be subject to approval by the OWNER. 1.6.6. Shop Drawings. The ENGINEER shall review and take appropriate action on Shop Drawings(as that term is defined in the aforesaid General Conditions), samples and other data which the Contractor(s)are required to submit. Such review shall be only for general conformance with the design concept of the Project and general compliance with the information given in the Contract Documents. It shall not include review of quantities,dimensions,weights or gauges, fabrication processes, construction methods, coordination with the work of other trades or construction safety precautions, all of which are the sole responsibility of the Contractor(s). The ENGINEER's review shall be conducted with 5 reasonable promptness consistent with sound professional practice. Review of a specific item shall not indicate acceptance of an assembly of which the item is a component. The ENGINEER shall not be required to review and shall not be responsible for any deviations from the Contract Documents not clearly noted by the Contractor, nor shall the ENGINEER be required to review partial submissions or those for which submissions for correlated items have not been received. 1.6.7. Substitutes. ENGINEER shall evaluate and determine the acceptability of substitute materials and equipment proposed by the Contractor(s),but subject to the provision of paragraph 2.2.2. 1.6.8. Inspections and Tests. The ENGINEER shall have authority, as the OWNER's representative, to require special inspection or testing of the work, and shall receive and review all certificates of inspections, testings and approvals required by laws, rules, regulations, ordinances, codes, orders or the Contract Documents (but only to determine generally that their content complies with the requirements of,and the results certified indicate compliance with,the Contract Documents). 1.6.9. Disputes between OWNER and Contractor. The ENGINEER shall act as initial interpreter of the requirements of the Contract Documents and judge of the acceptability of the work thereunder and make decisions on all claims of the OWNER and the Contractor(s) relating to the acceptability of the work or the interpretation of the requirements of the Contract Documents pertaining to the execution and progress of the work. The ENGINEER shall not be liable for the results of any such interpretations or decisions rendered in good faith. 1.6.10. Applications for Payment. Based on the ENGINEER's on-site observations as an experienced and qualified design professional and on review of applications for payment and the accompanying data and schedules: 1.6.10a. The ENGINEER shall determine the amounts owing to the Contractor(s) and recommend in writing payments to the Contractor(s) in such amounts. Such recommendations of payment will constitute a representation to the OWNER, based on such observations and review, that the work has progressed to the point indicated, and that, to the best of the ENGINEER's knowledge, information and belief. the quality of such work is generally in accordance with the Contract Documents (subject to an evaluation of such work as a functioning whole prior to or upon Substantial Completion,to the results of any subsequent tests called for in the Contract Documents and to any other qualifications stated in the recommendation). In the case of unit price work, the ENGINEER's recommendations of payment will include final determinations of quantities and classifications of such work(subject to any subsequent adjustments allowed by the Contract Documents). 1.6.1Ob. By recommending any payment the ENGINEER will not thereby be deemed to have represented that examinations have been made by the ENGINEER to check the quality or quantity of Contractor(s)' work as it is furnished and performed beyond the responsibilities specifically assigned to the ENGINEER in this Agreement and the Contract Documents. ENGINEER's review of the Contractor(s)' work for the purposes of recommending payments will not impose on the ENGINEER responsibility to supervise, direct or control such work or for the means, methods, techniques, sequences or procedures of construction or safety precautions or programs incident thereto or the Contractor(s)compliance with laws,tales,regulations, ordinances,codes or orders applicable to their furnishing and performing the work. It will also not impose responsibility on the ENGINEER to make any examination to ascertain how or for what purposes any Contractor has used the moneys paid on account of the Contract Price, or to determine that title to any of the work, materials or equipment has passed to the OWNER free and clear of any lien, claims, security interests or- encumbrances, or that there nay not be other matters at issue between the OWNER and the Contractor that might affect the amount that should be paid. 1.6.11. Contractor(s)' Completion Documents. The ENGINEER shall receive and review maintenance and operating instructions, schedules, guarantees,bonds and certificates of inspection, tests and approvals which are to be assembled by the Contractor(s) in accordance with the Contract Documents (but such review will only be to determine that their content complies with the requirements of and, in the case of certificates of inspection, tests and approvals, the results certified indicate 6 compliance with, the Contract Documents); and shall transmit them to the OWNER with written comments. 1.6.12. Inspections. The ENGINEER shall conduct an inspection to determine if the work is substantially complete and prepare a "punch list" of items to be completed; and conduct a final inspection to determine if the completed work is acceptable so that the ENGINEER may recommend, in writing, final payment to the Contractor(s) and may give written notice to the OWNER and the Contractor(s) that the work is acceptable (subject to any conditions therein expressed), but any such recommendation and notice mill be subject to the limitations expressed in paragraph 1.6.10a. 1.6.13. Limitation of Responsibilities. The ENGINEER shall not be responsible for the acts or omissions of any Contractor, or of any subcontractor or supplier, or of any of the Contractor(s)' or subcontractor's or supplier's agents or employees or any other persons (except the ENGINEER's own employees and agents) at the site or otherwise furnishing or performing any of the Contractor(s)' work; however, nothing contained in paragraphs 1.6.1. through 1.6.13. inclusive, shall be construed to release the ENGINEER from liability for failure to properly perform duties and responsibilities assumed by the ENGINEER in the Contract Documents. 1.6.14. Provide two sets of prints of record Drawings showing those changes made during the construction process, based on the marked-up prints, drawings and other data furnished by the Contractor(s)to the ENGINEER and which the ENGINEER considers significant. SECTION 2-ADDITIONAL SERVICES OF THE ENGINEER 2.1. Services Requiring Authorization in Advance If authorized in writing by the OWNER, the ENGINEER shall furnish, or obtain from others, Additional Services of the following types which are not considered normal or customary Basic Services. Excluded from this category shall be services specifically included within the scope of Basic Services under Section 1, but which are also referred to below. These will be paid for by the OWNER as indicated in Section 5. 2.1.1. Furnishing assessment area boundary descriptions, assessment area maps, assessment calculations and assessment roll information. 2.1.2. Preparation of additional applications and supporting documents for governmental grants, loans or advances in connection with the Project; preparation or review of additional environmental assessments and impact statements; review and evaluation of the effect on the design requirements of the Project of any such statements and documents prepared by others; and assistance in obtaining approvals of authorities having jurisdiction over the anticipated environmental impact of the Project. 2.1.3. Services resulting from significant changes in the general scope, extent or character of the Project or ifs design including, but not limited to, changes in size, complexity, the OWNER's schedule, character of construction or method of financing; and revising previously accepted studies, reports, design documents at Contract Documents when such revisions are required by changes in laws, rules, regulations, ordinances, codes or orders enacted subsequent to the preparation of such studies, reports or documents,or are due to any other causes beyond the ENGINEER's control. 2.1.4. Providing renderings or models for the OWNER's use. 2.1.5. Preparing documents for alternate bids requested by the OWNER for Contractor(s)' work which is not executed or documents for out-of-sequence work unless such services are included under paragraph 1.4.by mutual agreement between the OWNER and the ENGINEER. 7 2.1.6. Investigations and studies involving, but not limited to, detailed consideration of operations, maintenance and overhead expenses; providing Value Engineering during the course of design; the preparation of feasibility studies, cash flow and economic evaluations, rate schedules and appraisals, assistance in obtaining financing for the Project; evaluating processes available for licensing and assisting the OWNER in obtaining process licensing; detailed quantity surveys of material, equipment and labor;and audits or inventories required in connection with construction performed by the OWNER. 2.1.7. Furnishing the services of independent professional associates mad consultants for other than Basic Services (which include, but are not limited to, customary civil, structural, mechanical and electrical Engineering and customary architectural design incidental thereto); and providing data or services of the types described in paragraph 3.3. when the OWNER employs the ENGINEER to provide such data or services in lieu of furnishing the same in accordance with paragraph 3.3. 2.1.8. Furnishing additional copies of reports, Drawings and Specifica.11ons other than specifically provided in paragraph 1.4.5. 2.1.9. Services resulting from the award of more separate prime contracts for construction, materials,equipment or services for the Project than are contemplated by paragraph 1.5.1. 2.1.10. Assistance in connection with bid protests or rebidding contracts for construction, materials, equipment or services. 2.1.11. Preparing to serve or serving as a consultant or witness for the OWNER in any litigation, arbitration or other legal or administrative proceeding involving the Project (except as agreed to under Basic Services). 2.1.12. Providing any type of property surveys or related Engineering services needed for the transfer of interests in real property and staking to enable the Contractor(s) to proceed with their work; and providing other special field surveys. 2.1.13. Preparation of operating,maintenance and staffmg manuals. 2.1.14. The additional cost of providing a set of reproducible record Prints instead of the prints provided under paragraph 1.6.14. 2.1.15. Additional services in connection with the Project, including services which are to be furnished by the OWNER in accordance with Section 3, and services not otherwise provided for in this Agreement. 2.2. Required Additional Services When required by the Contract Documents in circumstances beyond the ENGINEER'S control, the ENGINEER's shall furnish or obtain from others,as circumstances require during construction and with specific authorization from the OWNER, Additional Services of the types listed in paragraphs 2.2.1. through 2.2.6., inclusive. These services are not included as part of Basic Services. The ENGINEER shall advise the OWNER promptly after starting any such Additional Services which will be paid for by the OWNER as indicated in Section 5. 2.2.1. Services in connection with work directive changes and change orders to reflect changes requested by the OWNER if the resulting change in compensation for Basic Services is not commensurate with the Additional Services rendered. 8 2.2.2. Services in making revisions to Drawings and Specifications occasioned by the acceptance of substitutions proposed by the Contractor(s); and services after the award of each contract in evaluating and determining the acceptability of an unreasonable or excessive number of substitutions proposed by the Contractor. 2.2.3. Services resulting from significant delays, changes or price increases occurring as a direct or indirect result of material,equipment or energy shortages. 2.2.4. Additional or extended services during construction made necessary by (1) work damaged by fire or other cause during construction, (2) a significant amount of defective or neglected work of any Contractor, (3) acceleration of the progress schedule involving services beyond normal working hours and(4)default by any Contractor. 2.2.5. Services in connection with any partial utilization of any part of the Project by the OWNER prior to Substantial Completion. 2.2.6. Evaluating an unreasonable or extensive number of claims submitted by the Contractor(s)or others in connection with the work. 2.3. Resident Services During Construction 2.3.1. A Resident Project Representative (and assistants) will be furnished and will act as directed by the ENGINEER in order to assist the ENGINEER in observing performance of the work of the Contractor(s). Such services will be paid for by the OWNER as indicated in Section 5. 2.3.2. The duties and responsibilities and the limitations on the authority of the Resident Project Representative (and any assistants) are set forth in Exhibit A "Duties, Responsibilities and Limitations of Authority of Resident Project Representative." 2.3.3. Through more extensive on-site observations of the work in progress and field checks of materials and equipment by the Resident Project Representative (and assistants), the ENGINEER shall endeavor to provide further protection for the OWNER against defects and deficiencies in the work of the Contractor(s); but the furnishing of such resident Project representation will not extend the ENGINEEMs responsibilities or authority beyond the limitations set forth in paragraph 1.6.3b., or elsewhere in paragraph 1.6. SECTION 3-THE OWNER'S RESPONSIBILITIES The OWNER shall do the following in a timely manner so as not to delay the services of the ENGINEER. 3.1. Furnish copies of all design and construction standards which the OWNER will require to be included in the Drawings and Specifications. 3.2. Assist the ENGINEER by placing at his disposal all available information pertinent to the Project including previous reports and any other data relative to design or construction of the Project. 3.3. Furnish to the ENGINEER, as required for performance of the ENGINEER's Basic Services, data prepared by or services of others, including without limitation, borings, probings and subsurface explorations, hydrographic surveys, laboratory tests and inspections of samples, materials and equipment; appropriate professional interpretations of all of the foregoing;environmental assessment and impact statements;property, boundary, easement, right-of-way,topographic and utility surveys; property descriptions; zoning, deed and other land use restrictions; and other special data or consultations not covered in Section 2; all of which the ENGINEER nay rely upon in performing his services under this Agreement. 9 3.4. Arrange for access to and make reasonable provisions for the ENGINEER to enter upon public and private property as required for the ENGINEER to perform his services under this Agreement. 3.5. Examine all studies, reports, sketches, Drawings, Specifications, proposals and other documents presented by the ENGINEER, obtain advice of an attorney, insurance counselor and other consultants as the OWNER deems appropriate for such examination and render in writing decisions pertaining thereto within a reasonable time so as not to delay the services of the ENGINEER. 3.6. Bear the cost of approvals and permits from all governmental authorities having jurisdiction over the Project and such approvals and consents from others as may be necessary for completion of the Project. 3.7. Provide such accounting, independent cost estimating and insurance counseling services as may be required for the Project, such legal services as the OWNER may require with regard to legal issues pertaining to the Project including any that may be raised by the Contractor(s), such auditing service as the OWNER may require to ascertain how or for what purpose any Contractor has used the monies paid under the construction contract, and such inspection services as the OWNER may require to ascertain that the Contractor(s) are complying with any law, rule, regulation, ordinance, code or order applicable to their furnishing and performing the work. 3.8. If the OWNER designates a person to represent the OWNER at the site who is not the ENGINEER or the ENGINEER's agent or employee, the duties, responsibilities and limitations of authority of such other person and the affect thereof on the duties and responsibilities of the ENGINEER and the Resident Project Representative (and any assistants) will be set forth in an exhibit that is to be identified,attached to and made a part of this Agreement before such services begin. 3.9. Furnish to, the ENGINEER data or estimated figures as to the OWNER's anticipated costs for services to be provided by others for the OWNER so that the ENGINEER may make the necessary findings to support opinions of probable Project Costs. 3.10. Attend the bid opening, preconstruction conferences, construction progress and other job related meetings and Substantial Completion inspections and final payment inspections. 3.11. Give prompt written notice to the ENGINEER whenever the OWNER observes or otherwise becomes aware of any development that affects the scope or timing of the ENGINEER's services, or any defect or non-conformance in the work of any Contractor. 3.12. Furnish, or direct the ENGINEER to provide, necessary Additional Services as stipulated in paragraph 2.1. of this Agreement or other services as required. 3.13. Bear all costs incident to compliance with the requirements of this Section 3. SECTION 4-PERIOD OF SERVICE 4.1. The provisions of this Section 4 and the various rates of compensation for the ENGINEER's services provided for elsewhere in this Agreement have been agreed to in anticipation of the orderly and continuous progress of the Project through completion of the Construction Phase. Unless previously terminated, as provided in paragraph 7.1.,the ENGINEER's obligation to render services hereunder will extend for a period which may reasonably be required for the design, the award of contracts and construction of the Project including extra work and required extensions thereto. 4.2. If the OWNER has requested significant modifications or changes in the extent of the Project, the time of performance of the ENGINEER's services and his various rates of compensation shall be adjusted appropriately. 10 4.3. In the event the Contractor(s)do not complete their work within the time set forth in the Bidding Documents,the maximum total payment for the Engineering services will be negotiated to accommodate a revised scope of services. 4.4. If the ENGINEER's services during construction of the Project are delayed or suspended in whole or in part by the OWNER for more than three months for reasons beyond the ENGINEER's control, the ENGINEER shall, on written demand to the OWNER (but without termination of this Agreement), be paid as if termination had occurred. If such delay or suspension extends for more than one year for reasons beyond the ENGINEER's control, or if the ENGINEER for any reason is required to render services more than one year after Substantial Completion, the various rates of compensation provided for elsewhere in this Agreement shall be subject to renegotiation. SECTION S-PAYMENT TO THE ENGINEER 5.1. Payments for Basic Services of the ENGINEER under Section 1. For the basic services to be performed by the ENGINEER under paragraphs 1.4., 1.5. and 1.6. - Final Design Phase, Bidding Phase and Construction Phase, the OWNER agrees to pay the ENGINEER the following cost not to exceed prices: Final Design/Bidding Phase/Boundary Surveys $14,360 Construction Phase 9,600 Geotechnical Services and Materials Testing 5,600 Total $28,960 Hourly rates for all applicable services will be applied against the Not-to-Exceed Costs above in accordance with the rates delineated in the fee schedule with the Letter of Interest and Statement of Qualifications dated 10-18-96. 5.2. In the event of termination by the OWNER under paragraph 7.1. upon the completion of any phase of the Basic Services, progress payments due the ENGINEER for services rendered through such phase shall constitute total payment for such services. In the event of such termination by the OWNER during any phase of the Basic Services, the ENGINEER also will be reimbursed for the charges of independent professional associates and consultants employed by the ENGINEER to render Basic Services. In the event of any such termination, the ENGINEER will be paid for all unpaid Additional Services and unpaid Reimbursable Expenses, plus all termination expenses. Termination expenses mean additional Reimbursable Expenses directly attributable to termination. SECTION 6-CONSTRUCTION COST,PROJECT COST AND OPINIONS OF COST 6.1. Construction Cost. The construction cost of the entire Project (herein referred to as "Construction Cost")means the total cost to the OWNER of those portions of the entire Project designed and specified by the ENGINEER,but it will not include the ENGINEER's compensation and expenses, the cost of land, rights-of-way, or compensation for or damages to properties, nor will it include OWNER's legal, accounting, insurance counseling or auditing services,or interest and financing charges incurred in connection with the Project or the cost of other services to be provided by others to the OWNER pursuant to Section 3. 6.2. Project Cost. The ENGINEER's opinion of probable costs for the Project means the following costs: Construction Cost, allowance f or Engineering costs and contingencies, and (on the basis of information furnished by the OWNER) allowances for such other items as charges of all other professionals and consultants, for the cost of land and rights-of-way, for compensation for or damages to properties, for interest and financing charges and for other services to be provided by others for the 11 OWNER pursuant to Section 3. The total of all such costs, allowances, etc. is herein called total "Project Cost". 6.3. Since the ENGINEER has no control over the cost of labor, materials, equipment or services furnished by others, or over the Contractor(s)' methods of determining prices, or over competitive bidding or market conditions, his opinions of probable Project Cost and Construction Cost provided for herein are to be made on the basis of his experience and qualifications and represent his best judgment as an experienced and qualified professional ENGINEER, familiar with the construction industry; but the ENGINEER cannot and does not guarantee that proposals, bids or actual Project or Construction Cost will not vary from opinions of probable cost prepared by him. If prior to the Bidding Phase the OWNER wishes greater assurance as to Project or Construction Cost he shall employ an independent cost estimator as provided in paragraph 3.7. SECTION 7-GENERAL CONSIDERATIONS 7.1. Termination. The obligation to provide further services under this Agreement may be terminated by either party upon 30 days' written notice in the event of substantial failure by the other party to perform in accordance with the terms hereof through no fault of the terminating party. 7.2. Reuse of Documents. All documents including Drawings and Specifications prepared by the ENGINEER (and the ENGINEER's independent professional associates and consultants) pursuant to this Agreement are instruments of service in respect of the Project and the ENGINEER shall retain an ownership and property interest therein whether or not the Protect is completed. The OWNER may make and retain copies for information and reference in connection with the use and occupancy of the Project by the OWNER and others; however such documents are not intended or represented to be suitable for reuse by the OWNER or others on extensions of the Project or on any other project. Any reuse without written verification or adaptation by the ENGINEER for the specific purpose intended will be at the OWNER's sole risk and without liability or legal exposure to the ENGINEER or to the ENGINEER's independent professional associates or consultants; and the OWNER to the extent permitted by law, shall idemnify and hold harmless the ENGINEER and the ENGINEER's independent professional associates and consultants from all claims, damages, losses and expenses including attorneys' fees arising out of or resulting therefrom. Any such verification or adaptation will entitle the ENGINEER to further compensation at rates to be agreed upon by the OWNER and the ENGINEER. 7.3. Arbitration. 7.3.1. All claims, counterclaim, disputes and other matters in question between the parties hereto arising out of or relating to this Agreement or the breach thereof will be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining, subject to the limitations and restrictions stated in paragraphs 7.3.2., 7.3.3. and 7.3.4. below. This agreement so to arbitrate and any other agreement or consent to arbitrate entered into in accordance herewith as provided in this paragraph 7.3. will be specifically enforceable under the prevailing law of any court having jurisdiction. 7.3.2. Notice of a claim must be made within 24 hours after the occurrence,or the beginning of the occurrence, of an event or action giving rise to the claim. Within ten days thereafter the claim must be delivered to the other party. The claim must contain a detailed description of the basis of the claim with specific reference to applicable provisions of the Agreement, must state the amount claimed(if it is a money claim), and how it is calculated. At the time the claim is filed the complaining party must provide all of the supporting information that it wants to have considered. If it is impracticable for it to do so, the claimant must file the supporting documents as soon as it is practicable. A request for arbitration must be made within 30 days after the event(s) or occurrence(s) giving rise to it becomes known to the claimant. The granting or denial, partially or full, by the OWNER the ENGINEER of a claim under this section is the triggering event which starts the 30 day period to run. Failure to make the request for arbitration within this 30 day period is a waiver of arbitration rights and operates as a full release of the party against whom the claim is made with respect to the triggering event. To the extent 12 not inconsistent with the notice and request for arbitration requirements contained in this section, rules and requirements of the Construction Industry Arbitration Rules of the American Arbitration Association shall pertain. In no event may a request for arbitration be made after the date when institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statute of limitations. 7.3.3. All demands for arbitration and all answering statements thereto which include any monetary claim must contain a statement that the total sum or value in controversy as alleged by the party making such demand or answering statement is not more than $200,000 (exclusive of interest and costs) and the arbitrators will not have jurisdiction, power or authority to render a monetary award in response thereto against any party which totals more than$200,000(exclusive of interest and costs). The arbitrators will not have jurisdiction, power or authority to consider, or make findings (except in denial of their own jurisdiction) concerning any claim, counterclaim, dispute or other matter in question where the amount in controversy of any such claim, counterclaim, dispute or matter is more than $200,000 (exclusive of interest and costs). 7.3.4. No arbitration arising out of, or relating to, this Agreement may include, by consolidation,joinder or in any other manner,any person or entity who is not a party to this Agreement. 7.3.5. By-written consent signed by all the parties to this Agreement and containing a specific reference hereto,the limitations and restrictions contained in paragraphs 7.3.3. and 7.3.4. may be waived in whole or in part as to any claim, counterclaim, dispute or other matter specifically described in such consent. No consent to arbitration in respect of a specifically described claim, counterclaim, dispute or other matter in question will constitute consent to arbitrate any other claim, counterclaim, dispute or other matter in question which is not specifically described in such consent or in which the sum or value in controversy exceeds $200,000 (exclusive of interest and costs) or which is with any party not specifically,described therein. 7.3.6. The award rendered by the arbitrators will be final;judgment may be entered upon it in any court having jurisdiction thereof and will not be subject to modification or appeal except to the extent permitted by Sections 10 and 11 of the Federal Arbitration Act(9 U.S.C. la, 11). 7.4. OWNER's Representative. The Director of the Orange County Community Development Department, or her designated representative, shall act as the OWNER's representative with respect to the services to be rendered under this Agreement. Such person shall have complete authority, to the extent permissible by law and by the OWNER's procedures, to transmit instructions, receive information, interpret and define the OWNER'S policies and decisions with respect to the ENGINEER's services for the Project. 7.5. Insurance. The ENGINEER shall procure and maintain insurance for protection from claims under workers' compensation acts, claims for damages because of bodily injury including personal injury, sickness or disease or death of any and all employees, or of any person other than such employees, and from claims or damages because of injury to or destruction of property including loss of use resulting therefrom. Also the ENGINEER shall procure and maintain professional liability insurance for protection from claims arising out of performance of professional services caused by a negligent error,omission or act for which the insured is legally liable. The limits for these coverages are as follows: Worker's Compensation Insurance Statutory limits Professional Liability $1,000,000 per occur (Errors and Omissions coverage included) $3,000,000 per aggregate Public Liability Insurance; $1,000,000 per occur including bodily injury and property damage $1,000,000 aggregate (includes coverage on vehicles being used by the firm) 7.6. Successors and Assigns. 7.6.1. The OWNER and the ENGINEER each is hereby bound and the partners, successors, executors, administrators and legal representative of the OWNER and the ENGINEER (and to the 13 extent permitted by paragraph 7.6.2., the assigns of the OWNER and the ENGINEER) are hereby bound to the other party to this Agreement and to the partners, successors, executors, administrators and legal representatives (and said assigns) of such other party, in respect of all covenants, agreements and obligations of this Agreement. 7.6.2. Neither the OWNER nor the ENGINEER shall assign, sublet or transfer any rights under or interest in(including, but without limitation, moneys that may become due or moneys that are due) this Agreement without the written consent of the other, except to the extent that any assignment, subletting or transfer is mandated by law or the effect of this limitation may be restricted by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. Nothing contained in this paragraph shall prevent the ENGINEER from employing such independent professional associates, consultants and subcontractors as he may deem appropriate to assist in the performance of services hereunder. 7.6.3. Nothing under this Agreement shall be construed to give any rights or benefits in this Agreement to anyone other than the OWNER and the ENGINEER, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of the OWNER and the ENGINEER and not for the benefit of any other party. 7.7. Jurisdictional Authority - This Agreement shall be construed in accordance with North Carolina lam. Venue for any suit involving this Agreement should be in the North Carolina courts and filed in Orange County. 7.8. Exhibits and Supporting Data. The following exhibits and supporting data shall be attached hereto and become a part hereof: 7.8.1. Exhibit A - "Duties, Responsibilities and Limitations of Authority of Resident Project Representative". 7.8.2. Letter of Interest and Statement of Qualifications dated October 18, 1996 is hereby incorporated by reference. 7.8.3. Exhibit B - HUD clauses : "Conflict of Interest", "Age Discrimination", "Nondiscrimination on the Basis of Handicap", and "Section 3 of the Housing and Urban Development Act of 1968 as amended,"Access to Records and Record Retainage," and"Lobbying Clauses". 7.8.4. Exhibit C-Certificates of Insurance. 14 IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as the day and year first above written. ATTEST ORANGE COUNTY,NORTH CAROLINA (OWNER) Clerk to the Board of County Chair,Board of Commissioners Commissioners ATTEST ENGINEER Coulter,Hart,Jewell,and Thames,P.A. James W.Thames,P.E. Kenneth R.Coulter,President Vice-President/Corporate Secretary APPROVAL AS TO FORM This instrument has been preaudited in the manner required by the Local Government Budget and Fiscal Control Act. County Attorney Kenneth Chavious,Finance Officer Orange County,North Carolina l 15 a Exhibit A Duties, Responsibilities and Limitations of Authority of Resident Project Representative A. General. The Resident Project Representative is the ENGINEER's agent at the site, will act as directed by and under the supervision of the ENGINEER and will confer with the ENGINEER regarding his actions. His dealings in matters pertaining to the on-site work shall, in general, be with the ENGINEER and the Contractor, keeping the 01,NER advised as necessary. His dealings with subcontractors shall only be through or with the full knowledge and approval of the Contractor. 24 shall generally communicate with the OWNER with the knowledge of and under the direction of the ENGINEER. B. Duties and Responsibilities. The Resident Project Representative shall: 1. Schedules: Review the progress schedule, schedule of Shop Drawing submittals and schedule of values prepared by the Contractor and consult with the ENGINEER concerning acceptability. 2. Conferences and Meetings: Attend meetings with the Contractor, such as preconstruction conferences, progress meetings, job conferences and other project related meetings, and prepare and circulate copies of minutes thereof. 3. Liaison: a. Serve as the ENGINEER's liaison with the Contractor, working principally through the Contractor's superintendent and assist in understanding the intent of the Project Contract Documents; and assist the' ENGINEER in serving as the OWNER's liaison with the Contractor.' when the Contractor's operations affect the OWNER's on-site operations. b. Assist in obtaining from the OWNER additional details or informatioj when required for proper execution of the work. 4. Shop Drawings and Samples: a. Record datd of receipt of Shop Drawings and samples. b. Receive samples which are furnished at the site by the Contractor,, and notify the ENGINEER of availability of samples for examination. c. Advise the ENGINEER and the Contractor of the commencement of any work requiring a Shop Drawing or sample if the submittal has not been processed by the ENGINEER. A-t 16 • 5. Review of Work, Rejection-of Defective Work, Inspection and Tests a. Conduct on-site observations of the work in progress to assist the ENGINEER in determining if the work is in general proceeding in accordance with the Contract Documents. b. Report to the ENGINEER whenever he believes that any work is unsatisfactory, faulty or defective or does not conform to the Contract Documents, or has been damaged or does not meet the requirements of any inspection, test or approval required to be made; and advise the ENGINEER. of work that he believes should be corrected or rejected or should be uncovered for observation, or requires special testing, inspection or approval. c. Verify that tests, equipment and systems startups and operating and maintenance training are conducted in the presence of appropriate personnel, and that the Contractor maintains adequate records thereof; observe, record and report to the ENGINEER appropriate details relative to the test procedures and startups. d. Accompany visiting inspectors representing public or other agencies having jurisdiction over the Project, record the results of these inspections and report to the ENGINEER. 6. Interpretation . of Project Contract Documents: Report to the ENGINEER when clarifications and interpretations of the Contract Documents are needed and transmit to the Contractor clarifications and interpretations as issued by the ENGINEER. 7. Modifications: Consider and evaluate the Contractor's suggestions for modifications in Drawings or Specifications and report them, with recommendations, to the ENGINEER. Transmit to the Contractor decisions as issued by the ENGINEER. 8. Records: a. Maintain at the job site orderly files for correspondence, reports of job conferences, Shop Drawings and samples, reproductions of original Contract Documents including all work directive changes, addenda, change orders, field orders, additional Drawings issued subsequent to the execution of the Contract, the ENGINEER's clarifications and interpretations of the Contract Documents, progress reports and other Project- related documents. b. Keep a diary or log book, recording Contractor hours on the job site, weather conditions, data relative to questions of work directive changes, change orders or changed conditions, list of job site visitors, daily activities, decisions, observations in general and specific observations in more detail as in the case of observing test procedures; and send copies to the ENGINEER. A-2 - 17 c. Record names, addresses and telephone numbers of all Contractors, subcontractors and major suppliers of materials and equipment. 9. Reports: a. Furnish the ENGINEER periodic reports as required of progress of the work and of the Contractor's compliance with the progress schedule and the schedule of Shop Drawing and sample submittals. b. Consult with the ENGINEER in advance of scheduled major tests, inspections or start of important phases of the work. c. Draft proposed change orders and work directive changes, obtaining backup material from the Contractor and recommend to the ENGINEER change orders, work `4irective changes and field orders. d. Report immediately to the kidINEER and the OWNER upon the occurrence of any accident. :. 10. Payment Requests: Review applications for payment with the Contractor for compliance with the established procedure for their submission and forward them with recommendations to the ENGINEER, noting particularly the relationship of the payment requested to the schedule of values, work completed and materials and equipment delivered at the site, but not incorporated in the work. 11. Certificates, Maintenance and Operation Manuals: During the course of the work, verify that certificates, maintenance and operation manuals and other data required to be assembled and furnished by the Contractor are applicable to the items actually installed and in accordance with the Contract Documents, and have this material delivered to the ENGINEER for review and forwarding to the OWNER prior to final payment for the work. 12. Completion: a. Before the ENGINEER issues a Certificate of Substantial Completion, submit to the Contractor a list of observed items requiring completion or correction. b. Conduct a final inspection in the company of the ENGINEER, the OWNER and the Contractor, and prepare a final list of items to be completed or corrected. c. Observe that all items on the final list have been completed or corrected and make recommendations to the ENGINEER concerning acceptance. A-! 18 ' C. Limitations of Authority. The Resident Project Representative: 1. Shall not authorize any deviation from the Contract Documents or substitution of materials or equipment, unless authorized by the ENGINEER. 2. Shall not exceed limitations of the ENGINEER's authority as set forth in the Contract Documents. 3. Shall not undertake any of the responsibilities of the Contractor, subcontractors or Contractor's superintendent. 4. Shall not advise on, issue directions relative to or assume control over any aspect of the means, methods, techniques, sequences or procedures of construction unless such advice or directions are specifically required by the Contract Documents. 5. Shall not advise on, issue directions regarding or assume control over safety precautions and programs in connection with the work. 6. Shall not accept Shop Drawing or sample submittals from anyone other than the Contractor. 7. Shall not authorize the OWNER to occupy the Project in whole or in part. 8. Shall not participate in specialized field or laboratory tests or inspections conducted by others except as specifically authorized by. the ENGINEER. A-4 t 19 EX]MIT B-HUD CLAUSES r 20 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 exercises 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 sub- contract, 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. Nondiscrimination 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 which funds available under this title. Age Discrimination Act of 1975, as Amended Nondiscrimination on the Basic 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. 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. S 21 "Section 3" Compliance in the Provision of Training, Employment, and Business Opportunities a. The work to be performed under this contract is on a project assisted under a program providing direct Federal financial assistance from the Department of Housing and Urban Development and is subject to the require- ments of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S. C. 1701u. Section 3 requires that to the greatest extent feasible opportunities for training and employment be given lower income residents of the project areas\ and contracts for work in connection with the project be awarded to business concerns which are located in, or owned in substantial part by persons residing in the area of the project. b. The parties to this contract will comply with the provisions of said Section 3 and the regulations issued pursuant thereto by the Secretary of Housing and Urban Development set forth in 24 CFR 135, and all applicable rules and orders of the Department issued thereunder prior to the execution of this contract. The parties to this contract certify and agree that they are under no contractual or other disability which would prevent them from complying with these requirements. c. The contractor will send to each labor organization or representative of workers with which he has a collective bargaining agreement or other contract or understanding, if any, a notice advising the said labor organization or workers representative of his commitments under this Section 3 clause and shall post copies of the notice in conspicuous places available to employees and applicants for employment and training. d. The contractor will include this Section 3 clause in every subcontract for work in connection with the project and will, at the direction of the applicant for or recipient of Federal financial assistance, take appropriate action pursuant to the subcontract upon a finding that the subcontractor is in violation of regulations issued by the Secretary of Housing and Urban Development, 24 CFR Part 135. The contractor will not subcontract with any subcontractor where it has notice or knowledge that the latter has been found in violation of regulations under 24 CFR Part 135 and will not let any subcontract unless the subcontractor has first provided it with a preliminary statement of ability, to comply with the requirements of these regulations. e. Compliance with the provisions of Section 3, the regulations set forth in 24 CFR Part 135, and all applicable rules and orders of the Department issued hereunder prior to the execution of the contract, shall be a conditions of the federal financial assistance provided to the project, binding upon the applicant or recipient for such assistance, its successors and assigns. Failure to fulfill these requirements shall subject the applicant or recipient, its contractors and subcontractors, its successors or assigns to those santions specified by the grant or loan agreement of. contract through which federal assistance is provided, and to such sancitons as are specified by 24 CFR Part 135. 22 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 enter- ing 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 any person for influencing or attempting to influence an officer �6r 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 cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. 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. Access to Records and Record Retainage Clause In general, all official project records and documents must be maintained during the operation of this. project and for a period of three years following close out in compliance with 4 NCAC 19L Rule .0911, Recordkeeping. The North Carolina Department of Economic and Community Development, 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.