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HomeMy WebLinkAboutAgenda - 03-02-2006-8bAASHLF draft of February 21, 2006 AGENCY AGREEMENT THIS AGENCY AGREEMENT is dated as of April 1, 2006, and is entered into by and between ORANGE COUNTY, NORTH CAROLINA, as principal (the "County"), and THE ORANGE COUNTY BOARD OF EDUCATION, as agent (the "School Board"}. RECITALS: The County and the School Board have agreed upon a plan for the acquisition and construction {the "Project") of certain school improvements (the "Improvements"}, as more particularly described on Exhibit A. As part of the plan for financing the Project, the County has entered into an Installment Financing Contract of even date {the "Financing Contract"} ujith Orange County Public Facilities Company (the "Company"), providing for the financing of the Project. As part of the agreed-upon plan, the County desires to designate the School Board as its agent to carry out the Project, and the School Board is willing to accept such an appointment pursuant to the terms of this Agency Agreement. NOW, THEREFORE, for and in consideration of the mutual promises herein contained and for other valuable consideration, the parties agree as follows: 1. Capitalized terms used in this Agency Agreement and not otherwise defined have the meanings assigned in the Financing Contract. All references to the Company include the Company's successors and assigns pursuant to the Financing Contract and the transactions contemplated by the Financing Contract. 2. APPOINTMENT; ACCEPTANCE. The County appoints the School Board as its agent to carry out all phases of the Project. The School Board, as the County's agent, assumes all the County's J336'v2 1 rights, duties and responsibilities regarding such matters, except as limited in this Agency Agreement. The School Board will appoint no further agent to assume such rights or carry out such duties and responsibilities without the prior written consent of the County and the Company. 3. CONTRACTS. Subject to the provisions of [Section 3.1] of the Financing Contract (relating to required compliance with North Carolina multiple contractors and public bid lauTs), the School Board, u~•ith the County's approval, may enter into any purchase order or contract ~~~ith respect to the Project in the School Board's name. Alternati~Tely, the County may require that any such purchase orders or contracts be entered into by the County in its ouTn name or be entered into by the County and the School Board jointly. In addition, to the extent permitted by la«r, the School Board herebyT assigns to the County all purchase orders ar contracts related to the Project that the School Board has previously entered into, including (uTithout limitation) all contracts for engineering, design, environmental and architectural services, all construction contracts and all contracts for the supply of equipment and other goods. All such contracts shall hereafter be carried out by the School Board as the County's agent in accordance with Section 4 and the other provisions of this Agreement. The School Board will provide that contractors provide and maintain bonds, insurance coverages and contract assignments that comply with the requirements of [Sections 3.4 through ~.7] of the Financing Contract. Included in this obligation is the obligation to provide for co-obligees, loss pa~Tees or additional insureds, as applicable and as provided in such [Sections 3.4 through 3.7] . All contracts will comply with the public procurement laws and any other State lav~Ts applicable to either the School Board or the County, as appropriate, with regard to entering into such contracts. 4. RIGHTS AND RESPONSIBILITIES FOR THE PROJECT. The School Board, as the County's agent, will be responsible for carrying out the Project in accordance with the requirements of [Article III] of the Financing Contract, and the School Board will have all rights to supervise the Project. 2 In particular, but without limitation, the School Board ti~rill have the right reserved to the County in [Section 3.1 ] of the Financing Contract to approve changes to the Plans and Specifications and the Construction Contracts, subject to the limitations set out in such Section {relating to a requirement to establish funding sources before approving changes that increase casts}. The County and its representatives and agents will have the right to enter upon the Sites and inspect the Improvements from time to time during construction and after the completion of construction, and the School Board will cause any vendor, contractor or sub-contractor to cooperate with the County and its representatives and agents during such inspections. No right of inspection or appro~Tal granted in this Section ~~jill be deemed to impose upon the County any duty or obligation whatsoever to undertake any inspection or to make any approval. No inspection made or approval given by the County will be deemed to impose upon the County any duty or obligation whatsoever to identify or correct any defects i11 the Improvements or to notify any person with respect thereto, and no liability will be imposed upon the County, and the County makes no uTarranties {either express or implied) as to the quality or fitness of any improvement, any such inspection and approval beiizg made solely for the County's benefit. 5. SCHOOL BOARD'S RIGHT TO ENFORCE CONTRACTS. For so long as the School Board is not in default of any of the provisions of this Agency Agreement and the Lease, the School Board has the right to enforce in its own name or in the County's name purchase orders or contracts entered in the County's name or the School Board's name for the Project; provided, however, that if the School Board is in default of any provision of this Agency Agreement or the Lease far a period of tlurty days after being notified by the County of such default without cure, the County has the right to terminate this Agency Agreement and assLUne all the School Board's responsibilities far the Project. In the event of such a termination of this Agency Agreement, the School Board will assign to the County any and all right, title and interest to any and all contracts relating to the Project, including but not limited to any architect agreement(s), any and all engineering agreements, any and all construction agreements, and any and all plans, specifications and other drawings or documents prepared or to be prepared for the Project. The School Board agrees to reimburse the County for any and all costs, expenses, and damages incurred by the County in the assumption of the rights and responsibilities of the School Board due to such event of default without cure, and to indemnify and hold the County harmless for 9386'v2 anyT and all claims far damages by others related to such e~Tent of default without cure. Any assignment by the County of any of its rights under the Financing Contract will not prevent the County from asserting such rights and powers in its ouTn behalf. 6. PROJECT FUND DISBURSEMENTS. [Section 4.02] of the Trust Agreement provides that amounts will be disbursed to the County for Project Costs only upon the Trustee's receipt of a requisition, signed by a County Representative, in the form prescribed by the Trust Agreement which makes certain representations, designates the payee and provides evidence that payment is due (such as an architect's payment certification}. With respect to Project Costs for Improvements, the School Board will prepare such requisitions in the first instance and forward the same to the County for review, approval and forwarding to the Trustee for payment, all in accordance with [Section 4.02] of the Trust Agreement. The County has the right to obtain such additional evidence as it deems appropriate to determine the accuracy of the representations set forth in the form of requisition and the propriety of payment. The School Board will provide the County with such information in the School Board's possession as the County may request. 7. APPLICATION OF CASUALTY INSURANCE PROCEEDS. Notwithstanding any provision of this Agency Agreement, the County retains the sole power to control and direct the application and distribution of proceeds of casualty insurance applicable to the Improvements. 8. RESERVATION OF RIGHTS. This Agency Agreement is not to be construed in any way as delegating or limiting the County's rights hereunder or under the Financing Contract, except as expressly provided in this Agency Agreement. 9. CONSIDERATION. The County and the School Board are undertaking their mutual obligations under this Agency Agreement in partial consideration for, and in partial fulfillment of, their agreement to carry out the Project. 4 (The ~enrainde~ of this page hers been left blank intentionally.) J336'v2 IN WITNESS WHEREOF, the parties have caused this Agency Agreement to be executed in their corporate names by their duly authorized officers, all as of the date first above written. [SEAL] ORANGE COUNTY, ATTEST: NORTH CAROLINA By: Donna S. Baker Barry Jacobs Clerk, Board of Chair, Board of Commissioners Commissioners [SEAL] THE ORANGE COUNTY BOARD OF ATTEST: EDUCATION By: Shirley Carraway Randy Copeland Secretary Chair This instrument has been preaudited in the manner required by The Local Government Budget and Fiscal Control Act. Kenneth T. Chavious Finance Officer North Carolina This instrument has been preaudited in the manner required by the School Budget and Fiscal Control Act Pat Harris Finance Officer, The Orange County Board of Education [Agency Agreement dated as of April 1, 2006] 6 EXHIBIT A THE IMPROVEMENTS [Gravelly Hill Middle School description, to come] J336'v2 7