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HomeMy WebLinkAbout2018-048-E Housing - Hart Hickman contract servicesDocuSign Envelope ID: 8D759C14- 37D5- 44D8- A8F3- B194B7034410 PROFESSIONAL SERVICES AGREEMENT THIS PROFESSIONAL SERVICES AGREEMENT ( "Agreement ") is entered into as of the date set forth below, by and between HART & HICKMAN, P.C., a North Carolina professional corporation ( "H &H "), and the company set forth below ( "Client "). 1. Scone of Services. The scope of services shall consist of consulting and engineering services as agreed to by H &H and Client. The scope of services may be modified from time to time as agreed to by the parties. 2. Professional Service Charges. For the performance of its services, H &H shall be paid by Client on a lump sum basis for the proposed lump sum services. In the event that additional H &H Client- approved services are required beyond the proposed lump sum services, H &H shall be paid by Client in accordance with the fees listed on Exhibit A attached hereto, including Tables A -1 and A -2, which fees are subject to change each calendar year. For all services, H &H will issue progress invoices to Client every four (4) weeks which will be payable upon receipt by Client. Interest of one and one -half percent (1.5 %) per month will be payable on any amounts not paid within thirty (30) days of receipt of an invoice by Client and such interest charges will be accrued on subsequent invoices. Any attorneys' fees incurred by H &H in collecting any delinquent amount shall be incorporated into invoices as such charges are incurred and shall be paid by the Client in full. 3. Insurance. Insurance coverage shall be maintained by H &H in accordance with the limits indicated in Exhibit B attached hereto. 4. Standard of Care. H &H's services will be performed, within the limits prescribed by this Agreement, in a manner consistent with that level of care and skill ordinarily exercised by members of the same profession currently practicing in the same geographic area under similar conditions. No other guaranty, warranty or representation, either express or implied, is included or intended herein or in H &H's proposals, contracts or reports. Client agrees to provide H &H prompt written notice of any defect or suspected defect in its services. 5. Limitation of Liability. A. Client acknowledges that, as of the date of this Agreement, H &H has neither created nor contributed to the existence of any hazardous, radioactive, toxic or otherwise dangerous substance or condition at the project site, and its compensation hereunder is in no way commensurate with the potential risk of injury or loss that may be caused by exposure to such substances or conditions. Accordingly, notwithstanding any other provision herein, H &H shall not be subject to any liability whatsoever, whether arising in tort, contract or otherwise, on behalf of H &H, its officers, employees, agents or subcontractors (collectively, the "H &H Parties "), for any actual or alleged loss arising directly or indirectly from the release or threatened release or handling of pre - existing or Client - generated Hazardous Substances and Waste (as defined in Section 11) at or near the project site. B. The H &H Parties shall not be liable for indirect or consequential damages, including, without limitation, loss of use and loss of profits. C. In addition to the limitations expressed above, and notwithstanding any other provision herein, the liability of the H &H Parties shall be limited to injury or loss caused by the negligence of the H &H Parties, and Client agrees that the liability of the H &H Parties shall be fin-ther limited as follows: (1) the liability of the H &H Parties for any and all actual or alleged injury or loss arising directly or indirectly from (a) professional errors and omissions and/or (b) environmental impairment or pollution, shall not exceed the amount of H &H's fee for the project or $50,000; and (2) any other claim(s) of any kind whatsoever against the H &H Parties shall be limited to an amount not to exceed $100,000. D. But for the inclusion of Sections 5 and 6, H &H's compensation for services for services would otherwise be greater and/or H &H would not have entered into this Agreement. 6. Indemni . Client agrees to indemnify and hold harmless the H &H Parties to the fullest extent permitted by law from and against any and all actual or alleged loss, including attorneys' fees and other reasonable costs of defense, (1) for loss caused by the negligence or willful misconduct of Client, its officers, employees, or its other agents, contractors or subcontractors, and (2) for any third -party claim for loss arising from the performance of services under this Agreement by the H &H Parties, but only to the extent that such loss exceeds the relevant amount of H &H's liability specified in Section 5 above. In the event Client makes a claim against an H &H Party at law or otherwise, for any alleged error, omission or other act arising out of the performance of the professional services rendered pursuant to this Agreement, and to the extent that daft 1 hackman SMARTER ENVIRONMENTAL 5AOLUTION5 DocuSign Envelope ID: 8D759C14- 37D5- 44D8- A8F3- B194B7034410 Client fails to prove such claim, Client shall pay all costs and expenses, including attorneys' fees, incurred by an H &H Party in defending such claim. 7. Confidentiality. H &H and Client shall hold confidential all business or technical information obtained from the other or its affiliates under this Agreement for a period of five (5) years after obtaining such information, and during that period shall not disclose such information without the other's consent except to the extent required for the following: (1) performance of services under this Agreement; (2) compliance with professional standards of conduct for preservation of the public safety, health and welfare; (3) compliance with any court order or other governmental directive; and/or (4) protection of the disclosing party against claims or liabilities arising from performance of services under this Agreement. The parties' obligations hereunder shall not apply to information in the public domain or information lawfully acquired on a non - confidential basis from others. 8. Right of Entry and Property Responsibility. Client shall grant, or cause to be granted, at Client's expense, free access to any property upon which services are to be performed pursuant to this Agreement. H &H shall be responsible for its own activities at the property including the safety of its employees, but shall not assume control of or responsibility for the property or the safety of persons not in H &H's employ. 9. Site Uncertainties. Because of inherent uncertainties in soils, foundations, groundwater, and other geotechnical or geoscience investigations, H &H reports and opinions with respect to the site condition and potential construction or clean -up costs are not guaranteed to be a representation of actual site conditions or costs, and the consequences of unanticipated conditions during subsequent activities at the project site are not the responsibility of H &H. 10. Client Disclosures and Discovery of Different Site Conditions. H &H is not liable, and Client waives any claim for any consequence of any action of H &H, or incorrect advice, judgment or decision based on any incomplete or inaccurate information furnished by Client or third parties upon which H &H reasonably relies, and Client agrees to indemnify and hold H &H harmless against third -party claims resulting from such action, advice, judgment or decision, including without limitation attorneys' fees and other reasonable expenses of defending against such claims. 11. Hazardous Substances and Waste.. Client warrants that, if it knows or suspects that Hazardous Substances and Waste may exist at the property, it has so informed H &H. For purposes of this Agreement, the term "Hazardous Substances and Waste" shall mean and include, but shall not be limited to, any elements, constituent, chemical, substance, compound, or mixture which are defined in or included under, or regulated by a local, state or federal law, rule, ordinance or regulation pertaining to environmental regulation, contamination, cleanup or disposal including, without limitation, the Comprehensive Environmental Response Compensation and Liability Act of 1980 ( "CERCLA "), the Superfund Amendments and Reauthorization Act of 1988 ( "SARA "), the Resource Conservation and Recovery Act ( "RCRA "), the Clean Water Act ( "CWA" ), the Clean Air Act ( "CAA "), the Marine Protection Research and Sanctuaries Act ( "MPRSA" ), the Occupational Safety and Health Act ( "OSHA'), including any state and local counterparts of such laws. Client shall be responsible for all costs and consequences arising from the discovery of unanticipated Hazardous Substances and Waste. Client also agrees that H &H has no responsibility as a handler, generator, operator, treater, storer, transporter, or disposer of Hazardous Substances and Waste found or identified at or near the project site. 12. Termination /Suspension of Services. H &H may terminate or suspend its services upon ten (10) calendar days written notice if timely payment of invoices is not made. Upon termination or suspension for nonpayment, H &H may withhold any and all records, reports, investigations, analyses, and other data, documents or work product, until Client's account is current. Either party may terminate this Agreement upon not less than ten (10) days written notice to the other specifying any other substantial failure by the other party to perform in accordance with the terms of this Agreement through no fault of the terminating party. Such termination shall not be effective, however, if that substantial failure has been remedied before the expiration of the notice period. Upon any termination or suspension, H &H shall be paid for all authorized work performed up to the date of such termination or suspension, plus termination or suspension expenses, including, but not limited to, those related to reassignment of personnel, additional subcontractor costs, and any other direct and indirect costs or expenses resulting from such termination or suspension. H &H may complete, at Client's expense, any reports, records, investigations, analyses or other data or documents reasonably necessary to place H &H's files in order, or to protect H &H's professional reputation. D. Assignments and Subcontractors. Neither Client nor H &H shall assign or otherwise transfer its right, duties or obligations under this Agreement without the prior written consent of the other; provided, however, that H &H may 2 hart ! hackman SMARTER ENVIRONMENTAL SOLUTIONS DocuSign Envelope ID: 8D759C14- 37D5- 44D8- A8F3- B194B7034410 subcontract for those services which are ordinarily or customarily provided by others or which are necessary to prevent or minimize danger to persons, property or equipment. 14. Independent Contractor Status. Unless expressly stated otherwise in the scope of services, in performing its services under this Agreement, H &H is an independent contractor of Client and no other relationship exists between H &H and Client. 15. Miscellaneous. A. Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all agreements and understandings between the parties concerning the subject matter hereof. B. Severability. If any provision of this Agreement is held to be unenforceable, invalid or illegal by any court of competent jurisdiction, such unenforceable, invalid or illegal provisions shall not affect the remainder of this Agreement. C. Headings. The headings of the Sections herein are for convenience of reference only and are not to be considered in construing this Agreement. D. Governing Law. The validity of this Agreement and the interpretation and performance of all of its terms shall be governed by the substantive laws of the State ofNorth Carolina, without regard to the conflict of laws provisions thereof. E. Submission to Jurisdiction. Each of the Parties submits to the exclusive jurisdiction of any state or federal court sitting in Charlotte, North Carolina, in any action or proceeding arising out of or relating to this Agreement, agrees that all claims in respect of the action or proceeding may be heard and determined in any such court and agrees not to bring any action or proceeding arising out of or relating to this Agreement in any other court. Each of the Parties waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety or other security that might be required of any other Party with respect thereto. Each Party agrees that process may be served upon them in any manner authorized by the laws of the State of North Carolina and waives and covenants not to assert or plead any objection that they might otherwise have to such process. Each Party agrees that a final judgment in any action or proceeding so brought shall be conclusive and may be enforced by suit on the judgment or in any other manner provided by law. F. Waiver. Failure of either party to insist upon strict compliance with any of the terms, covenants and conditions hereof shall not be deemed a waiver or relinquishment of any similar right or power hereunder at any subsequent time or of any other provision hereof. G. Notices. Any notice required or permitted to be given under this Agreement shall be sufficient if in writing, and if sent by personal delivery or by certified mail, return receipt requested, to the party to whom notice should be given at the address as follows: If to H &H: If to Client, to the address set forth below: Hart & Hickman, P.C. 2923 S. Tryon St, Suite 100 Charlotte, NC 28203 Attention: Attention: or to such other address as the parties may specify, in writing, from time to time. H. Modification of Agreement. This Agreement may be modified by the parties only by a written supplemental agreement executed by both parties. I. No Third -Party Beneficiaries. This Agreement shall not create any rights or benefits in any person or entity other than Client and H &H, nor is it intended to create any third -party beneficiaries to it. J. Re -use of Documents. All documents, including drawings and specifications, prepared or furnished by H &H (and H &H's agents and sub - contractors) pursuant to this Agreement are instruments of service, and H &H shall retain an ownership and property interest therein whether or not the services are completed. Client may make and retain copies for information and reference in connection with the project; however, such documents are not intended or represented to be suitable for re -use by Client or others on extensions of the project or on any other project. Any re -use without written verification or adaptation by H &H for the specific purpose intended will be at Client's sole risk and without liability to the H &H for any and all losses, cost, expense and damages whatsoever arising out of such re -use. hart � �11�C�(man SMARTER ENVIRONMENTAL SOLUTIONS DocuSign Envelope ID: 8D759C14- 37D5- 44D8- A8F3- B194B7034410 Any such verification or adaptation will entitle H &H to further compensation at rates to be agreed upon by H &H and Client. Client acknowledges that all documents, including drawings and specifications, reports, and related documents (Work Product) are intended for the exclusive use and benefit of, and may be relied upon only by, H &H and parties to this Agreement for the intended purposes of the subject project. Client does not require H &H's permission for regulatory submittal of the Work Product or for disclosure of the Work Product without the right to rely. If Client wishes to distribute any Work Product for reliance to any third party to which distribution for reliance is not authorized above, Client and the third party must first execute H &H's Secondary Client Agreement. If Client relies upon or wishes to distribute any Work Product produced by H &H's subcontractors for reliance to any third party to which distribution for reliance is not authorized above, the appropriate parties must first execute H &H's or its subcontractor's Secondary Client Agreement. The Secondary Client Agreement shall provide that the limits of liability set forth in that Agreement shall be shared between or among Client and all Secondary Clients for the protection of H &H and its subcontractors. An example Secondary Client Agreement is available upon request. IN WITNESS WHEREOF, the parties have duly executed and delivered this Agreement as HART & HICKMAN, P.C. CLIENT: By: By: _ Name: Name: _ Title: _ Title: Address: 4 hart � hickman SMARTER ENVIRONMENTAL SOLUTIONS DocuSign Envelope ID: 8D759C14- 37D5- 44D8- A8F3- B194B7034410 EXHIBIT A EM For the services performed outside the scope of the lump sum services, the contract price shall be an amount equal to the sum of (1) through (4) below. (1) Labor. The billing rate paid to H &H for the actual hours worked by its personnel shall be in accordance with the classification and salary ranges shown in Table A -1. Labor rates are subject to periodic increases proportionate to employee pay increases. (2) Employee Travel. Air travel shall be by tourist/economy class unless otherwise approved by the client. Other traveling and living expenses shall be reasonable and in accordance with H &H travel policies. (3) Expenses. The cost for H &H owned equipment and expenses including field instruments, field equipment, field samples, company vehicles, and computer and reproduction equipment shall be in accordance with Table A -2 attached. (4) Outside Expenses. The cost for outside expenses including, but not limited to, leased equipment, travel charges, drilling subcontractors, laboratory subcontractors, professional subcontractors, and other general outside expenses shall be billed at the cost of the outside expense plus a handling charge of twelve and one half percent. Table A -1 Rate Schedule Category Rate Principal, Program Manager $ 130-178 Senior Professional $ 100-158 Project Professional $ 80 - 118 Staff Professional & Technicians $60-88 Clerical & Support $50-78 dart hick an SMAIRTE'R ENVIRONMENTAL 50LUTIONS DocuSign Envelope ID: 8D759C14- 37D5- 44D8- A8F3- B194B7034410 Table A -2 H &H Field Instruments and Equipment Turbidity Meter Water Level Meter pH ORP Conductivity Meter Dissolved 02 Meter Hand Auger PID -Daily PID - Weekly Hand Held GPS Magellan GPS Metal Detector Interface Meter Generator Flow Meter Camera Mobile Phone Drum Labels Magnahelic Gauges Swing Sampler Petroflag Peristaltic Pump Sump Pump Two Way Radios Tripod /Level /Rod Padlock (brass) Well cap Drum Pump Injection Manifold EOS/HRC Pump Hammer Drill Small Hard Cover Large Hard Cover Small Soft Cover 36" Polyethylene Bailer 83" Polyethylene Bailer Teflon Bailer RCRA Decon Teflon Bailer Rates for Miscellaneous Expenses Ferrous Iron Asbestos Sample Radon Test Kit Chloride Test Hach DO Test Kit Sampling Consumables Carbon Dioxide /Hydrogen Sulfide/Manganese /Alkalinity Kits Company Vehicles Daily Rate (up to 100 miles /day included) Half -Day Rate (up to 50 miles/half -day included) 5 -Day Weekly Rate (up to 50 miles per day included) Office Items Photocopies — black & white Photocopies — color MODFLOW /MT3D AutoCAD /15 $30 /day $30 /day $60 /day $55 /day $30 /day $100 /day $350/ week $35 /day $150 /day $40 /day $60 /day $75 day $30 day $10 day $10 /day $2 each $10 /day $15 /day $50 /day $75 /day $10 /day $25 /day $40 /day $10 /ea $5 /ea $60 /day $150 /day $60 /day $25 /day $10 each $20 each $5 each $15 each $15 each $25 each $30 each $50 /day $15 each $25 /each $50 /day $75 /day $20 /day $50 ea/day $75 /day plus $0.25/mi over 100 mi /day $45/half -day plus $0.25/mi over 50 mi/day $300 /wk plus $0.25/mi over 50 mi /day $0.12 ea. $0.30 ea. 8.5 "x11 "copy /$0.50 ea. larger copy $15/hour $10/hour 6 hart hickman SMAI TE'R ENVIRONMENTAL 50LUTIONS DocuSign Envelope ID: 8D759C14- 37D5- 44D8- A8F3- B194B7034410 EXHIBIT B Insurance Worker's Compensation and Employer's Liability Insurance Policy includes: a. Employer's Liability of $500,000. b. Statutory NC benefits. Comprehensive General Liability and Professional Errors & Omissions /Pollution Extension Insurance Limits: a. $1,000,000 per occurrence: Products, personal injury. b. $1,000,000 aggregate. c. $50,000 fire damage. Comprehensive Automobile Liability Insurance Limits: a. $500,000 per accident combined single limit bodily injury and property damage liability. hart hickman SMAIRfE'R ENVIRONMENTAL 50LUTiIONS DocuSign Envelope ID: 8D759C14- 37D5- 44D8- A8F3- B194B7034410 [Departmental Use Only] TITLE Hart and Hickman, PC FY FY 2016 -2017 NORTH CAROLINA CONSULTING SERVICES AGREEMENT UNDER $90,000 ORANGE COUNTY This Agreement, made and entered into this 26 day of January , 2018, ( "Effective Date ") by and between Orange County, North Carolina a body politic and corporate of the State of North Carolina (hereinafter, the "County ") and Hart and Hickman, PC., (hereinafter, the "Consultant "). WITNESSETH: That the County and Consultant, for the consideration herein named, do hereby agree as follows: ARTICLE 1 SCOPE OF WORK 1.1 Scope of Work 1.1.1 This Services Agreement ( "Agreement ") is for professional consulting services to be rendered by Consultant to County with respect to (insert type of project) Environmental Reviews for Categorically Excluded Activities Subject to Section 58.5 Residential Developments, 606 Bynum Street, Chapel Hill, NC and 116 Cole Street, Chapel Hill, NC as provided in the attached letter dated January 12, 2018, which is Exhibit 1. 1.1.2 By executing this Agreement, the Consultant represents and agrees that Consultant 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. 1.1.3 Time is of the essence with respect to this Agreement. 1.1.4 The services to be performed under this Agreement consist of Basic Services, as described and designated in Article 3 hereof. Compensation to the Consultant for Basic Services under this Agreement shall be as set forth herein. ARTICLE 2 RESPONSIBILITIES OF THE CONSULTANT 2.1 Services to be Provided. The Consultant shall provide the County with all services required in Article 3 to satisfactorily complete the Project within the time limitations set forth herein and in accordance with the highest professional standards. 2.2. Standard of Care 2.2.1 The Consultant shall exercise reasonable care and diligence in performing services under this Agreement in accordance with the highest generally accepted standards of this type of Consultant practice throughout the United States and in accordance with applicable federal, state Revised 10/17 1 DocuSign Envelope ID: 8D759C14- 37D5- 44D8- A8F3- B194B7034410 and local laws and regulations applicable to the performance of these services. Consultant is solely responsible for the professional quality, accuracy and timely completion and submission of all reports, drawings, specifications, plans, documents and services (hereinafter "Deliverables ") related to the Basic Services. 2.2.2 The Consultant shall be responsible for all errors or omissions, in the deliverables prepared by the Consultant. 2.2.3 The Consultant shall correct at no additional cost to the County any and all errors, omissions, discrepancies, ambiguities, mistakes or conflicts in any Deliverables prepared by the Consultant. 2.2.4 The Consultant shall assure that all Deliverables prepared by it hereunder are in accordance with applicable laws, statutes, and that any necessary or appropriate applications for approvals are submitted to federal, state and local governments or agencies in a timely manner so as not to delay the Project. 2.2.5 The Consultant 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. 2.2.6 Any and all employees of the Consultant engaged by the Consultant in the performance of any work or services required of the Consultant under this Agreement, shall be considered employees or agents of the Consultant 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 Consultant. 2.2.7 If activities related to the performance of this agreement require specific licenses, certifications, or related credentials Consultant 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. ARTICLE 3 BASIC SERVICES 3.1 Basic Services 3.1.1 The Consultant shall perform as Basic Services the work and services described herein and as described in Exhibit A. ARTICLE 4 DURATION OF SERVICES 4.1 Scheduling of Services 4.1.1 The Consultant shall schedule and perform its activities in a timely manner. Revised 10117 2 DocuSign Envelope ID: 8D759C14- 37D5- 44D8- A8F3- B194B7034410 4.1.2 Should the County determine that the Consultant is behind the agreed upon schedule, it may require the Consultant 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. 4.1.3 The Commencement Date for the Consultant's Basic Services shall be February 5, 2018. ARTICLE 5 COMPENSATION 5.1 Compensation for Basic Services 5.1.1 Compensation for Basic Services shall include all compensation due the Consultant from the County for all services under this Agreement except for any authorized Reimbursable Expenses which are defined herein. The maximum amount payable for Basic Services is Three Thousand, Nine Hundred Dollars ($3,900). Payment for Basic Services shall become due and payable in direct proportion to satisfactory services performed and work accomplished. ARTICLE 6 RESPONSIBILITIES OF THE COUNTY 6.1 Cooperation and Coordination 6.1.1 The County has designated Sherrill Hampton 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 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. 6.1.2 The County shall be solely responsible for determining whether Consultant as satisfactorily completed Tasks. It is agreed that County shall not unreasonably withhold its determination of satisfactory completion of any Task. In the event the amount of an invoice is disputed County may withhold payment until the dispute is resolved by the parties. County may also withhold payment on an invoice until the satisfactory completion of a Task by Consultant. ARTICLE 7 INSURANCE AND INDEMNITY 7.1 General Requirements 7.1.1 Consultant shall obtain, at its sole expense, Commercial General Liability Insurance, Automobile Insurance, Workers' Compensation Insurance, Professional Liability Insurance, and any additional insurance as may be required by Owner's Risk Manager as such insurance requirements are described in the Orange County Risk Transfer Policy and Orange County Minimum Insurance Coverage Requirements (each document is incorporated herein by reference and may be viewed at http: / /www.orangecountVnc.gov /departments /purchasing division /contracts.php). If Owner's Risk Manager determines additional insurance coverage is required such additional insurance shall be designated here N/A (if no additional insurance required mark N/A as being not Revised 10/17 3 DocuSign Envelope ID: 8D759C14- 37D5- 44D8- A8F3- B194B7034410 applicable). Consultant shall not commence work until such insurance is in effect and certification thereof has been received by the Owner's Risk Manager. 7.2 Indemnity 7.2.1 The Consultant agrees, without limitation, to 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 property damage or bodily injury including death to any person or persons caused in whole or in part by the negligence or misconduct of the Consultant 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 Consultant to indemnify the County to the fullest extent permitted under North Carolina law. ARTICLE 8 AMENDMENTS TO THE AGREEMENT 8.1 Changes in Basic Services 8.1.1 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 Consultant. The Consultant shall proceed to perform the Services required by the Amendment only after receiving a fully executed Amendment from the County. ARTICLE 9 TERMINATION 9.1 Termination for Convenience of the County 9.1.1 This Agreement may be terminated without cause by the County and for its convenience upon seven (7) days prior written notice to the Consultant. 9.2 Other Termination 9.2.1 The Consultant 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 Consultant shall give the County seven (7) days' prior written notice of its intent to terminate this Agreement for cause. 9.3 Compensation After Termination 9.3.1 In the event of termination, the Consultant 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 Consultant. 9.3.2 Should this Agreement be terminated, the Consultant 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. 9.4 Waiver Revised 10117 4 DocuSign Envelope ID: 8D759C14- 37D5- 44D8- A8F3- B194B7034410 9.4.1 The payment of any sums by the County under this Agreement or the failure of the County to require compliance by the Consultant 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. 9.5 Suspension 9.5.1 County may suspend the work at any time for County's convenience and without penalty to County upon three (3) days' notice to Consultant. Upon any suspension by County, Consultant shall discontinue the work and shall not resume the work until notified to proceed by County. ARTICLE 10 ADDITIONAL PROVISIONS 10.1 Relationship of Parties 10.1.1 Consultant is an independent contractor of the County. Neither Consultant nor any employee of the Consultant shall be deemed an officer, employee or agent of the County. Consultant's personnel shall not be employees of, or have any contractual relationship with, the County. 10.2 Limitation and Assignment 10.2.1 The County and the Consultant each bind themselves, their successors, assigns, and legal representatives to the terms of this Agreement. Neither the County nor the Consultant shall assign or transfer its interest in this Agreement without the written consent of the other. 10.3 Governing Law 10.3.1 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. Consultant shall at all times remain in compliance with all applicable local, state, and federal laws, rules, and regulations including but not limited to all state and federal anti - discrimination laws, policies, rules, and regulations and the Orange County Non - Discrimination Policy and Orange County Living Wage Policy (each policy is incorporated herein by reference and may be viewed at http: / /www.orangecountVne.gov /departments /purchasing division /contracts.php). Any violation of this requirement is a breach of this Agreement and County may immediately terminate this Agreement without further obligation on the part of the County. This paragraph is not intended to limit the definition of breach to discrimination. By executing this Agreement Consultant affirms that Consultant and any subcontractors of Consultant are and shall remain in compliance with Article 2 of Chapter 64 of the North Carolina General Statutes. Where applicable, failure to maintain compliance with the requirements of Article 2 of Chapter 64 of the General Statutes constitutes Consultant's breach of this Agreement. By executing this Agreement Consultant affirms Consultant is in compliance with Article 2 of Chapter 64 of the North Carolina General Statutes. By executing this Agreement, Consultant certifies that Consultant has not been identified, and has not utilized the services of any agent or subcontractor, on the Iran divestment list created by the State Treasurer pursuant to G.S. 147- 86.58 and the Israel boycott list created pursuant to G.S. 147 - 86.81. Revised 10117 5 DocuSign Envelope ID: 8D759C14- 37D5- 44D8- A8F3- B194B7034410 10.4 Dispute Resolution 10.4.1 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 and it is agreed by the parties that no other court shall have jurisdiction or venue with respect to such suits or actions. The Parties may agree to nonbinding mediation of any dispute prior to the bringing of such suit or action. Under no circumstances shall any dispute be addressed through binding arbitration. 10.5 Extent of Agreement 10.5.1 This Agreement, together with the Request for Proposals together with attachments distributed by the County and the Consultant's submitted Proposal, all of which constitute the Contract Documents, represents the entire and integrated agreement between the County and the Consultant and supersedes all prior negotiations, representations or agreements, either written or oral. In the event of a conflict among the terms of the Contract Documents, the priority of documents shall be This Agreement, the County's Request for Proposals, attachments to the County's Request for Proposals, the Consultant's Proposal. This Agreement may be amended only by written instrument signed by both parties. Modifications may be evidenced by facsimile signatures. 10.6 Severability 10.6.1 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. 10.7 Ownership of Deliverables 10.7.1 All Deliverables, together with all supporting materials, source documentation, data collected, field notes, and working drafts, developed in the performance of this Agreement shall become the property of the County and may be used on any other project without additional compensation to the Consultant. The use of the Deliverables 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. 10.8 Non - Appropriation 10.8.1 Consultant 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 Consultant 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. Revised 10/17 6 DocuSign Envelope ID: 8D759C14- 37D5- 44D8- A8F3- B194B7034410 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 Consultant of such limitation or change in County's legal authority. 10.9 Notices and Signatures 10.9.1 This Agreement together with any amendments or modifications may be executed electronically. All electronic signatures affixed hereto evidence the consent of the Parties to utilize electronic signatures and the intent of the Parties to comply with Article I IA and Article 40 of North Carolina General Statute Chapter 66. 10.9.2 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 Attention: Housing & C/D P.O. Box 8181 Hillsborough, NC 27278 [SIGNATURE PAGE TO FOLLOW] Revised 10117 7 Consultant's Name & Address Hart and Hickman Smarter Environmental Solutions 3334 Hillsborough St., Raleigh, NC 27607 DocuSign Envelope ID: 8D759C14- 37D5- 44D8- A8F3- B194B7034410 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. COUNTY: Orange County CONSULTANT: Genna K. Olson DocuSigned by: DocuSigned by: 0637994B755E477... CFAD2266E72B46E... County Manager Genna K. Olson, PC Office Manager Printed Name and Title Revised 10117 8 DocuSign Envelope ID: 8D759C14- 37D5- 44D8- A8F3- B194B7034410 EXHIBIT 1 Sent Via Email January 12, 2018 hart ' hickman SMARTER ENVIRONMENTAL SOLUTIONS Orange County Housing, Human Rights and Community Development Department 300 West Tryon Street Hillsborough, North Carolina 27278 Attn: Ms. Renee Holmes Re: Proposal HUD Environmental Review for Categorically Excluded Activities Subject to Section 58.5 Residential Developments 606 Bynum Street, Chapel Hill, NC 116 Cole Street, Chapel Hill, NC H &H Proposal No. 18 -026 Dear Renee: 1.0 Introduction Per your request, Hart & Hickman, PC (H &H) is pleased to present this proposal to perform Housing and Urban Development (HUD) Environmental Reviews for Activities that are Categorically Excluded Subject to Section 58.5 pursuant to 24 CFR 58.35(a) for two residential developments within Orange County, North Carolina. We understand that the proposed residential developments are located at 606 Bynum Street and 116 Cole Street in Chapel Hill, Orange County, North Carolina. We understand the County is developing the residential developments at a density that is considered Categorically Excluded Subject to Section 58.5 pursuant to 24 CFR 58.35(a). 2923 South Tryon Street, Suite 1001 3334 Hillsborough Street Charlotte, NC 28203 Raleigh, NC 27607 wvvw.harthickman.com 704.585.0007 main 919.847.4241 main DocuSign Envelope ID: 8D759C14- 37D5- 44D8- A8F3- B194B7O3441O Ms. Renee Homes January 11, 2018 Page 2 2.0 Scope of Work H &H will conduct a site walkover to evaluate the project areas area for HUD Environmental Review visual inspection criteria noted in 24 CFR 58.36 and 58.40: • Determine existing conditions and describe the character, features and resources of the project area and its surroundings (including photos) and, where appropriate, identify the trends that are likely to continue in the absence of the project • Identify potential environmental impacts, whether beneficial or adverse, and the conditions that would change / have changed as a result of the project H &H will conduct research and make agency contacts necessary to determine whether the project will require further compliance under related laws and authorities noted in 24 CFR 50.4, 58.5, and 58.6 (to include airport hazards, coastal barrier resources, flood insurance, clean air, coastal zone management, contamination and toxic substances, endangered species, explosive and flammable hazards, farmland protection, floodplain management, historic preservation, noise abatement and control, sole source aquifers, wetlands protection, wild and scenic rivers, and environmental justice). H &H will also examine and recommend mitigation measures to reduce, avoid, or eliminate adverse environmental impacts and to avoid non - compliance or non - conformance with the abovementioned laws and authorities. H &H will prepare a form -style report using HUD's recommended report template. Based on steps noted above and for each of the reports, H &H will conclude with one of the following findings: • The categorically excluded activity converts to Exempt (per Section 58.34(a)(12) because there are no circumstances which require compliance with the Federal laws and authorities cited in Section 58.5 S:\AAA- Master Proposals & SOQs\2018 Proposals \18 -026 HUD Environmental Reviews Orange County.docx hart 'a h i c k m a n _ SMARTER ENVIRONMENTAL SOLUTIONS DocuSign Envelope ID: 8D759C14- 37D5- 44D8- A8F3- B194B7034410 Ms. Renee Homes January 11, 2018 Page 3 • The categorically excluded activity cannot convert to Exempt because there are circumstances which require compliance with one or more Federal laws and authorities cited in Section 58.5 • The project is now subject to a full Environmental Assessment according to Part 58 Subpart E due to extraordinary circumstances (Section 58.32(c)) The Environmental Review will include a list of reference documents, maps, construction drawings, and site photographs presented to support our findings. 3.0 Cost and Schedule H &H proposes to perform the Environmental Reviews for the following lump sum fees: • 606 Bynum Street, Chapel Hill, NC — $1,950 • 116 Cole Street, Chapel Hill, NC—$1,950 H &H anticipates completion of the Environmental Reviews within two to three weeks following the receipt of comments from the State Historic Preservation Office, U.S. Fish & Wildlife Service, and NC Wildlife Resources Commission. 4.0 Terms and Conditions H &H services will be provided in accordance with generally accepted environmental science, geoscience, and engineering practices at the time the work is performed. It is important to recognize that even the most comprehensive scope of services may fail to detect environmental liabilities on a particular site. The failure to identify all areas of environmental concern through completion of this study does not guarantee the absence of such conditions. Therefore, H &H cannot act as insurers and cannot "certify" that a site is free of environmental contamination, and no express or implied representation or warranty is included or intended in our reports, except that S:\AAA- Master Proposals & SOQs\2018 Proposals \18 -026 HUD Environmental Reviews Orange County.docx hart 'o h i c k m a n _ SMARTER ENVIRONMENTAL SOLUTIONS DocuSign Envelope ID: 8D759C14- 37D5- 44D8- A8F3- B194B7034410 Ms. Renee Homes January 11, 2018 Page 4 our services were performed, within the limits prescribed by our client, with the customary thoroughness and competence of our profession. H &H will conduct the Environmental Review activities in accordance with the attached Professional Services Agreement (PSA) which is hereby made part of this proposal. In order to authorize our services, please sign in the space indicated on the attached proposal Authorization Page and the signature page of the PSA and return the signed pages to me. Thank you for the opportunity to provide this proposal. Please contact me at olg songharthickman.com or (919) 723 -2511 if you have any questions or require additional information. Sincerely, Hart & Hickman, PC Danielle Birmingham Assistant Project Environmental Scientist Attachment S:\AAA- Master Proposals & SOQs\2018 Proposals \18 -026 HUD Environmental Reviews Orange County.docx 4-h'441 a`— Genna K. Olson, PG Raleigh Office Manager hart 1 hickman SMARTER ENVIRONMENTAL SOLUTIONS DocuSign Envelope ID: 8D759C14- 37D5- 44D8- A8F3- B194B7034410 AUTHORIZATION The scope of work and costs presented in H &H's Proposal No. 18 -026 and the terms and conditions of the attached Professional Services Agreement are acceptable. H &H is authorized to proceed with the scope of work. By: Date: For: DocuSign Envelope ID: 8D759C14- 37D5- 44D8- A8F3- B194B7034410 ACC? " CERTIFICATE OF LIABILITY INSURANCE DATE (MM /DDNYYY) 1/29/2018 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT Harriet Thomas NAME: AHCNNO Ext: (704) 892 -9297 A C No: (704)896 -0485 JJ Wade & Associates ADDRESS :hthomas @jjwadeinsurance.com P.O. Box 1209 212 S Main St. INSURER(S) AFFORDING COVERAGE NAIC # INSURERA:Selective Insurance Co of SE 39926 Davidson, NC 28036 INSURED INSURER B: CLAIMS -MADE � OCCUR INSURER C : Hart & Hickman, PC INSURER D: 2923 S. Tryon St., Suite 100 INSURER E: $ 300,000 Charlotte, NC 28203 INSURER F: $ 10,000 COVERAGES CERTIFICATE NUMBER:2017 -2018 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL SUBR POLICY NUMBER POLICY EFF MM /DD/YYYY POLICY EXP MM /DDNYYY LIMITS X COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ 2,000,000 A CLAIMS -MADE � OCCUR DAMAGE TO RENTED PREMISES Ea occurrence $ 300,000 • MED EXP (Anyone person) $ 10,000 NO XCU Exclusion X 52003148 12/21/2017 12/21/2018 • Contractual Liability PERSONAL & ADV INJURY $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 4,000,000 POLICY � PRO LOC PRODUCTS - COMP /OP AGG $ 4,000,000 $ OTHER: AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT Ea accident $ 1,000,000 X BODILY INJURY (Per person) $ A ANY AUTO ALL OWNED SCHEDULED AUTOS AUTOS 52003148 12/21/2017 12/21/2018 BODILY INJURY (Per accident) $ X PROPERTY DAMAGE Per accident $ NON -OWNED HIRED AUTOS FX AUTOS X UMBRELLA LIAB X OCCUR EACH OCCURRENCE $ 5,000,000 AGGREGATE $ 5,000,000 A EXCESS LIAB CLAIMS -MADE DED I X RETENTION$ 0 $ 52003148 12/21/2017 12/21/2018 WORKERS COMPENSATION AND EMPLOYERS' LIABILITY YIN X PER OTH- STATUTE I ER A ANY PROPRIETOR /PARTNER /EXECUTIVE OFFICER /MEMBER EXCLUDED? (Mandatory in NH) N/A y WC7978828 12/21/2017 12/21/2018 E.L. EACH ACCIDENT $ 1,000,000 E.L. DISEASE- EA EMPLOYE $ 1,000,000 If yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE - POLICY LIMIT $ 1,000,000 • Leased /Rented Equipment 52003148 12/21/2017 12/21/2018 Limit $5,000 • Valuable Papers 52003148 12/21/2017 12/21/2018 Limit $10,000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) Orange County, its officers, official agents and employees are included as Additional Insured on the General Liability policy as required by written contract. Waiver of Subrogation applies in favor of the Additional Insured on Workers Compensation as required by written contract. CERTIFICATE HOLDER CANCELLATION ACORD 25 (2014/01) INS025 (201401) © 1988 -2014 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE Orange County THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Attn: Risk Management ACCORDANCE WITH THE POLICY PROVISIONS. PO Box 8181 AUTHORIZED REPRESENTATIVE Hillsborough, NC 27278 James Roberts, Jr. /AH ACORD 25 (2014/01) INS025 (201401) © 1988 -2014 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD DocuSign Envelope ID: 8D759C14- 37D5- 44D8- A8F3- B194B7034410 ACC? " CERTIFICATE OF LIABILITY INSURANCE DATE (MM /DDNYYY) 1/29/2018 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT Doug arber NAME: g V NNO Ext: (704) 799 -1600 A/C No: (704)799 -2955 Insurance Management Consultants, Inc. E- MAILss:cert @imcipls.com ADDRE P.O. Box 2490 INSURER(S) AFFORDING COVERAGE NAIC # INSURERA:Continental Casualty Company 20443 Davidson NC 28036 INSURED INSURER B INSURER C : Hart & Hickman, PC INSURER D: 2923 South Tryon Street INSURER E: Suite 100 INSURER F: CLAIMS -MADE � OCCUR Charlotte NC 28203 COVERAGES CERTIFICATE NUMBER:3 /1/17 Renewal REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL SUBR POLICY NUMBER POLICY EFF MM /DD/YYYY POLICY EXP MM /DDNYYY LIMITS Jeff Todd /DGF%'� COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ DAMAGE TO RENTED CLAIMS -MADE � OCCUR PREMISES Ea occurrence $ MED EXP (Any one person) $ PERSONAL & ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ POLICY ❑ PRO ❑ LOC JECT PRODUCTS - COMP /OP AGG $ $ OTHER: AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT Ea accident $ BODILY INJURY (Per person) $ ANY AUTO ALL OWNED SCHEDULED AUTOS AUTOS BODILY INJURY (Per accident) $ PROPERTY DAMAGE Per accident $ NON -OWNED HIRED AUTOS AUTOS UMBRELLA LIAB OCCUR EACH OCCURRENCE $ HCLAIMS-MADE AGGREGATE $ EXCESS LIAB DED RETENTION $ $ WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y / N PER OTH- STATUTE I I ER ANY PROPRIETOR /PARTNER /EXECUTIVE E.L. EACH ACCIDENT $ OFFICER /MEMBER EXCLUDED? ❑ N / A E.L. DISEASE - EA EMPLOYE $ (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE - POLICY LIMIT $ A Professional Liability ECH288346016 3/1/2017 3/1/2018 Each Claim $3,000,000 Aggregate $5,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) CERTIFICATE HOLDER CANCELLATION webadmin@orangecountync.go SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE Orange County THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN P.O. Box 8181 ACCORDANCE WITH THE POLICY PROVISIONS. Hillsborough, NC 27278 AUTHORIZED REPRESENTATIVE Jeff Todd /DGF%'� ACORD 25 (2014/01) INS025 (201401) © 1988 -2014 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD