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HomeMy WebLinkAbout2019-344-E DEAPR - EI Group noise exposure studyRevised 12/18 1 [Departmental Use Only] TITLE Noise Exposure Study FY 2018-19 ORANGE COUNTY CONTRACT UNDER $5,000.00 NORTH CAROLINA THIS AGREEMENT, made and entered into this 12th day of June, 2019, (“Effective Date”) by and between Orange County, North Carolina, a body politic and corporate organized under the laws of the State of North Carolina, (the "County"), party of the first part; and The EI Group, Inc. (the "Provider"), party of the second part; W I T N E S S E T H: For the purpose and subject to the terms and conditions hereinafter set forth, the County hereby contracts for the services of the Provider, and the Provider agrees to provide the following services to the County in accordance with the terms of this Agreement, time being of the essence: The services and/or materials and/or construction (hereinafter referred to collectively as “Services”) to be furnished under this Agreement are as follows: Up to five (5) personal samples will be collected to evaluate employee exposure to noise levels using Casella CEL-35x personal noise dosimeters (or equivelent), which will be calibrated before and after use. Noise samples will be evaluated for emplloyees Time Weighted Average (TWA) noise exposure for comparison with the OSHA Action Level (AL) of 85 dB(A) and Permissible Exposure Limit (PEL) of 90 dB(A). The term of this agreement rendered shall be from June 24 to July 24. Provider represents and agrees that Provider is qualified to perform and fully capable of performing and providing the services required or necessary under this Agreement in a fully competent, professional and timely manner to the satisfaction of the County. Provider shall be responsible for all errors or omissions, in the performance of the Agreement. Provider shall correct any and all errors, omissions, discrepancies, ambiguities, mistakes or conflicts at no additional cost to the County. Provider agrees that Provider shall not sub-contract any of the services to be provided in this Agreement, nor shall Provider assign any right or responsibility granted or required by this Agreement, without the prior written approval of the County. SPECIFIC TERMS 1. Payment: The County agrees to pay at the rates specified for Services satisfactorily performed in accord with this Agreement. The amount to be paid by the County shall not exceed One Thousand Six Hundred Ninety Five Dollars, ($1,695). Payment shall be made within thirty (30) days of an invoice properly submitted to County. Should Provider fail to perform its duties under the terms of this Agreement, County may, without fault or penalty, withhold any payment associated with the work to be performed until such time as said work is completed. 2. Non–waiver: Failure by County at any time to require the performance by Provider of any of the provisions hereof shall in no way waive or affect the County's right hereunder to enforce the same, nor shall any waiver by the County of any breach be held to be a waiver of any succeeding breach or a waiver of this Non-Waiver Clause. 3. Independent Contractor: The Provider shall operate as an independent contractor, and the County shall not be responsible for any of the Provider’s acts or omissions. The Provider shall not be treated as an employee with respect to the Services performed hereunder for federal or state tax, unemployment or workers' compensation purposes. The Provider understands that neither federal, nor state, nor payroll tax of any kind shall be withheld or paid by the County on behalf of the Provider or the employees of the Provider. DocuSign Envelope ID: 22367E6B-5942-47DA-B321-4ACB7F6086D4 Revised 12/18 2 4. Insurance: Provider shall obtain, at its sole expense, Commercial General Liability Insurance, Automobile Insurance, Workers’ Compensation Insurance, and any additional insurance as may be required by County’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.orangecountync.gov/departments/purchasing_division/contracts.php). If County’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 applicable). Provider shall not commence work until such insurance is in effect and certification thereof has been received by the County's Risk Manager. 5. Indemnity: The Provider agrees, without limitation, to defend, indemnify, and hold harmless Orange County from all losses, liabilities, claims, demands, suits, costs, damages or expenses (including reasonable attorney's fees) arising from bodily injury, including death, to any person or persons or damage to or destruction of any property caused in whole or in part by any negligent or intentional act or omission on the part of the Provider in carrying out Provider’s duties and obligations related to the Services to be provided in this Agreement. 6. Termination: This Agreement may be terminated at any time by mutual written agreement of the parties or by the County upon written notice to the Provider. County may suspend this Agreement upon reasonable notice to Provider. 7. Entire Agreement and Signatures: The parties have read this Agreement and agree to be bound by all of its terms, and further agree that it constitutes the complete and exclusive statement of the Agreement between the parties unless and until modified in writing and signed by the parties. Modifications may be evidenced by telefacsimile signature. 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 11A and Article 40 of North Carolina General Statute Chapter 66. 8. Governing Law and Priority: Both parties agree that this Agreement shall be governed by the laws of the State of North Carolina and Orange County. Provider 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.orangecountync.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 and does not limit the definition of breach to discrimination. By executing this Agreement Provider certifies that Provider has not been identified, and has not utilized the services of any agent or subcontractor identified, on the list created by the State Treasurer pursuant to G.S. 147-86.58. By executing this Agreement Provider certifies that Provider has not been identified, and has not utilized the services of any agent or subcontractor identified, on the list created by the State Treasurer pursuant to G.S. 147-86.81. By executing this Agreement Provider affirms Provider is and shall remain in compliance with Article 2 of Chapter 64 of the North Carolina General Statutes. In determining the basic services to be provided, should any documents be referenced in or attached to this Agreement, the terms herein shall have priority in any conflict between the terms of referenced documents and the terms of this Agreement. 9. Dispute Resolution: Neither party may initiate binding arbitration. Any disputes shall be resolved by nonbinding mediation. If such mediation fails either party may initiate litigation to resolve the dispute. Should either party initiate litigation to settle any dispute involving the terms of this Agreement DocuSign Envelope ID: 22367E6B-5942-47DA-B321-4ACB7F6086D4 Revised 12/18 3 such litigation shall be initiated in the General Court of Justice of North Carolina seated in Orange County, North Carolina. 10. Non Appropriation: Provider acknowledges that County is a governmental entity, and the validity of this Agreement is based upon the availability of public funding under the authority of its statutory mandate. In the event that public funds are unavailable and not appropriated for the performance of County’s obligations under this Agreement, then this Agreement shall automatically expire without penalty to County immediately upon written notice to Provider of the unavailability and non-appropriation of public funds. IN WITNESS WHEREOF, Orange County and the Provider have signed this Agreement, effective as of the day first written above. ORANGE COUNTY PROVIDER By: _________________________ By: _________________________ Department Director Title: ________________________ 200 S. Cameron St. Adam H. Underwood P.O. Box 8181 Vice President, Development Manager Hillsborough, NC 27278 DocuSign Envelope ID: 22367E6B-5942-47DA-B321-4ACB7F6086D4     Environmental, Health and Safety Solutions.™ May 13, 2019 Ms. Alisa Cornetto, RN, COHN-S, CCM, MSCC, CLCP Risk Manager Orange County, NC PO Box 8181 Hillborough, NC Via Email: acornetto@orangecountync.gov Re: Noise Dosimetry – Lawn Services and Grounds Crew The EI Group Proposal No. PIHMO19097.00 Dear Alisa: Thank you for the opportunity to provide this proposal to conduct a noise survey of your operations in Orange County, pursuant to our recent conversations. EI maintains a team of experienced industrial hygienists available to provide the scope and quality of services that you require. The following proposal details the needs, sampling methodologies and costs for this noise monitoring project. Statement of Need It is our understanding that Orange County has identified periodic industrial hygiene monitoring needs surrounding noise exposure with their grounds crew, specifically with mowers, blowers and edgers. Personal noise dosimetry measurements are needed to document current exposures and advance the ongoing hearing conservation program. Proposed Scope of Work 1. An opening conference will be held with you or your appointed representative to discuss audit procedures prior to the survey. 2. Up to five (5) personal samples will be collected to evaluate employee exposure to noise levels using Casella CEL-35x personal noise dosimeters (or equivalent), which will be calibrated before and after use. Noise samples will be evaluated for employees Time Weighted Average (TWA) noise exposure for comparison with the OSHA Action Level (AL) of 85 dB(A) and Permissible Exposure Limit (PEL) of 90 dB(A). 3. A closing conference will be held with management at the end of the workday in question to discuss the initial survey findings and observations. 4. A detailed written report will be prepared addressing survey findings and will be submitted generally within twenty-one (21) days of the survey date. As necessary, recommendations will be made to assist the client in reducing ambient noise from the servers and to reduce employee exposures approaching or exceeding OSHA Permissible Exposure Limits (PEL). Methodology An experienced EI Industrial Hygienist from our Morrisville, NC office will conduct the proposed assessment/analysis under direct peer review of a board Certified Industrial Hygienist (CIH). Personal and area DocuSign Envelope ID: 22367E6B-5942-47DA-B321-4ACB7F6086D4 The EI Group, Inc. x 800.717.3472 x www.ei1.com samples will be used to evaluate employee exposure during a normal shift. EI personnel are available to complete the proposed work as needed. Proposed Schedule One (1) day on site in the Summer of 2019 is expected to be required to collect the data requested. A complete written report will be submitted as an electronic PDF document as directed by you, within fourteen (14) to twenty-one (21) days of completion of the field work. Quality Control Personal dosimeters will be calibrated before and after use with a sound level calibrator, calibrated within the previous twelve months. Confirming noise level measurements will be taken with a calibrated Type II sound level meter, also calibrated prior to the survey being conducted. Estimated Time and Fees Discipline Sampling Strategy Cost Noise Includes one-day onsite, travel, expenses, sampling for noise and report. $1,695.00 Total $1,695.00 An invoice for the full project amount will be submitted following delivery of the final report. Thank you for allowing EI to assist in this important aspect of your operations. If you have any questions concerning this proposal, please do not hesitate to contact me at 800-717-3472. Regards, The EI Group, Inc. Adam H. Underwood Vice President, Business Development DocuSign Envelope ID: 22367E6B-5942-47DA-B321-4ACB7F6086D4 The EI Group, Inc. x 800.717.3472 x www.ei1.com Standard Terms and Conditions The proposal submitted by The EI Group (“EI”), a North Carolina corporation, ("CONSULTANT") to the CLIENT is subject to the following terms and conditions. By accepting any of the services offered in this proposal, the CLIENT agrees to be bound by the following terms and conditions with respect to all work performed by EI or its subconsultants: 1. Billing and Payment: CLIENT will pay CONSULTANT’S nominated billing agent for all of its services based on invoices submitted to CLIENT. CLIENT recognizes that timely payment is a material part of this Agreement. If CLIENT disputes any part of an invoice, CLIENT will notify CONSULTANT in writing of such dispute within thirty (30) days of the date of such invoice. If CLIENT fails to notify CONSULTANT as required above, CLIENT waives any and all claims, rights and defenses related to the work covered by such invoices. 2. Standard of Care: CONSULTANT provides no express or implied warranties or guarantees of any kind. CONSULTANT only agrees that it will perform the Services in accordance with the standard of care and diligence normally practiced by consulting firms performing services of a similar nature in the same locale. 3. Limitation of Liability: CLIENT agrees that CONSULTANT’s liability for any claims that may be asserted by CLIENT is limited to $25,000 or to the fee paid to CONSULTANT under this Agreement, whichever is greater. Both CLIENT and CONSULTANT hereby waive any right to pursue a claim for consequential damages, including any claims for lost profits against one another. 4. Notification of Breach or Delay: CLIENT shall provide prompt written notice to CONSULTANT if CLIENT becomes aware of any fault, defect or delay in the CONSULTANT’s work or the work of any subcontractor or subconsultant, including any error, omission or inconsistency in such work or any alleged breach of contract by CONSULTANT. The failure of CLIENT to provide such written notice within five (5) business days from the time CLIENT became aware of, or should have become aware of, the fault, defect, error, omission, inconsistency or breach, shall constitute a waiver by CLIENT of any and all claims against CONSULTANT arising out of such fault, defect, delay, error, omission, inconsistency or breach. 5. Project Site: Should CLIENT not be owner of the project site, then CLIENT agrees to notify the Owner(s) of the potential for unavoidable alteration of Owner’s property and to indemnify and defend CONSULTANT against any claims by the Owner or persons having possession of the site through the Owner which are related to such alteration or damage. 6. Documents and Records: The CLIENT will furnish or cause to be furnished to the CONSULTANT such reports, data, studies, plans, specifications, documents and other information deemed necessary by the CONSULTANT for proper performance of the CONSULTANT's services. CONSULTANT assumes no responsibility or liability for the accuracy of such documents. Any use or reuse of the Records beyond the express purpose for which they were created without CONSULTANT’s written authorization will be at CLIENT’s sole risk, and CLIENT shall indemnify, defend and hold harmless CONSULTANT against any and all claims, lawsuits, damages, expenses, penalties, fines, costs or other liabilities arising out of or resulting from such use. 7. Opinion of Cost: CONSULTANT cannot and does not guarantee the proposals, bids or actual costs will not vary significantly from opinions of probable cost prepared by it. If at any time CLIENT wishes greater assurances as to the amount of any cost, CLIENT shall employ an independent cost estimator to make such determination. 8. Change Orders: CONSULTANT will treat as a change order any written or oral order (including directions, instructions, interpretations or determinations) from CLIENT which request changes in the Services. CONSULTANT will give CLIENT written notice within ten (10) days of the change order of any resulting increase in fee. Unless CLIENT objects in writing within five (5) days, the change order becomes a part of this Agreement. 9. Third-Party Rights: This agreement is solely for the benefit of the parties hereto and nothing herein, express or implied, is intended to confer any right or remedy on any person other than CLIENT and CONSULTANT. 10. Safety: CONSULTANT shall not be responsible for Site safety and shall have no right or obligation to direct or stop the work of CLIENT’s contractors, agents, or employees. 11. Force Majeure: CONSULTANT shall not be responsible for any delays, damages, costs, expenses, liabilities or other problems that may arise as a result of a force majeure. A “force majeure” is defined as any event arising from causes beyond the reasonable control of CONSULTANT, including but not limited to fire, flood, unusual inclement weather, acts of God, civil strikes or labor disputes, riots, acts or failures of government. DocuSign Envelope ID: 22367E6B-5942-47DA-B321-4ACB7F6086D4 The EI Group, Inc. x 800.717.3472 x www.ei1.com 12. Indemnity: CLIENT shall, to the fullest extent permitted by law, indemnify, defend and hold harmless the CONSULTANT from and against any and all claims, liabilities, losses, damages, costs or expenses, including, without limitation, reasonable attorney’s fees, awards, fines, damages or judgments arising out of or relating to, any or all of the following: (a) any inaccurate, insufficient or incomplete information provided to CONSULTANT by CLIENT; (b) any events, problems or circumstances arising out of or related to CLIENT’s negligence or breach of this Agreement; (c) any and all claims or liabilities resulting from CLIENT’s (or CLIENT’s contractors, agents, employees or representatives) violation of federal, state or local statutes, regulation ordinances; and (d) all claims and liabilities resulting from or related to Site conditions or hazardous substances or constituents introduced at the Site by any person or entity other than CONSULTANT. 13. Hazardous Substances and Constituents. The CLIENT agrees to advise the CONSULTANT upon execution of this Agreement of any hazardous substances or any condition existing in, on or near the Project Site presenting a potential danger to human health, the environment or equipment. By virtue of entering into this Agreement or of providing services hereunder, the CONSULTANT does not assume control of, or responsibility for, the Project Site or the person in charge of the Project Site or undertake responsibility for reporting to any federal, state or local public agencies, any conditions at the Project Site that may present a potential danger to the public, health, safety or environment except where required of the CONSULTANT by law. In the event CONSULTANT encounters hazardous or toxic substances or contamination significantly beyond that originally represented by CLIENT, CONSULTANT may suspend or terminate its Services. CLIENT acknowledges that CONSULTANT has no responsibility as a generator, treater, storer, or disposer of hazardous or toxic substances found or identified at a site and CLIENT agrees to defend, indemnify, and hold harmless CONSULTANT, from any claim or liability, arising out of CONSULTANT's performance of work under this Agreement and made or brought against CONSULTANT for any actual or threatened environmental pollution or contamination except to the extent that CONSULTANT has negligently caused such pollution or contamination. 14. Termination: Either party may terminate the Services with or without cause upon thirty (30) days advance written notice. If CLIENT terminates without cause or if CONSULTANT terminates for cause, CLIENT will pay CONSULTANT costs incurred, non- cancelable commitments, and fees earned to the date of termination and through demobilization, including any cancellation charges of vendors and subcontractors, and all demobilization costs. 15. Severability: If any of the provisions contained in this agreement are held illegal, invalid or unenforceable, the enforceability of the remaining provisions shall not be impaired thereby. The Court shall instead reform or replace any void or unenforceable provision with a valid and enforceable provision that gives meaning to the intention of the provision or shall strike the provision from the agreement. 16. Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating responsibility or liability between the CLIENT and the CONSULTANT shall survive the completion of the services and the termination of this Agreement. 17. Complete Agreement: The Parties acknowledge this Agreement, including the Scope of Work or Proposal attached hereto constitutes the entire Agreement between them. Unless stated otherwise in this Agreement, this Agreement may not be modified except in a writing signed by both parties. 18. Applicable Law. This agreement shall be construed and enforced in accordance with the laws of the State of North Carolina, excluding only its conflict of laws principles. DocuSign Envelope ID: 22367E6B-5942-47DA-B321-4ACB7F6086D4 6HHEHORZ Re: #PIHMO19097.00 Noise Dosimetry-Lawn Services and Grounds Crew. EIGRO 6/12/2019 Commercial Lines – 800-868-8834 800-868-8834 610-537-1902 USI Insurance Services LLC 6100 Fairview Road Charlotte, NC 28210 Colony Insurance Company 39993 Hartford Fire Insurance Company 19682 The EI Group, Inc.Hartford Underwriters Insurance Company 30104 2101 Gateway Centre BLVD STE 200 Morrisville NC 27560 14306919 XA PACE302644 1,000,00009/30/18 09/30/19 X 300,000 25,000 1,000,000 2,000,000 X X 2,000,000 B 22UUNBI0702 06/20/19 06/20/20 1,000,000 X X X XA EXC300995 09/30/18 09/30/19 5,000,000 X 5,000,000 C 22WEAD4JST 06/20/19 06/20/20 X 1,000,000 N 1,000,000 1,000,000 A Pollution Liability PACE302644 09/30/1809/30/18 09/30/19 $1,000,000 Each/$2,000,000 AggrAProfessional Liability PACE302644 09/30/18 09/30/19 $1,000,000 Each/$2,000,000 Aggr Orange County, NC PO Box 8181 Hillsborough NC 27278 DocuSign Envelope ID: 22367E6B-5942-47DA-B321-4ACB7F6086D4