HomeMy WebLinkAbout2019-601-E AMS - Warren Hay Whitted boiler pipe replacement
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[Departmental Use Only]
TITLE BoilerPipeReplacement Whitted
FY 2019/20
NORTH CAROLINA
CONSTRUCTION AGREEMENT UNDER $250,000.00
ORANGE COUNTY
THIS CONSTRUCTION AGREEMENT (hereinafter called “Agreement”), made as of the 28th
day of August, 2019, by and between Warren Hay Mechanical Contractors Inc., (hereinafter called the
“Contractor”), and Orange County, a body politic and a political subdivision of the State of North
Carolina, (hereinafter called the “County,” “Orange County,” and/or “Owner”).
W I T N E S S E T H:
That the Contractor and the Owner, for the consideration herein named, agree as follows:
1. CONTRACT DOCUMENTS; PRIORITY
The Contract Documents consist of this Agreement, the Request for Proposals, Proposal,
Construction Drawings, and Written Specifications. The Contract Documents form the Contract. In the
event of any inconsistency between or among the Contract Documents the Contract Documents shall be
interpreted in the following order of priority:
a. This Agreement.
b. Designer Approved Bulletins and/or Field Orders.
c. Request for Proposals and addenda thereto.
d. Proposal.
2. SCOPE OF WORK
The Contractor shall furnish and deliver all of the materials, and perform all of the work
required by this Agreement within the time period stipulated in a written Notice-to-Proceed to be
executed by the Contractor and Owner and in accordance with the following enumerated documents,
which are made a part hereof as if fully contained herein:
a. Construction Drawings prepared by N/A (Sheet dated )
b. Written specifications prepared by the project engineer.
c. Boiler Pipe Replacements & (Email Clarification -dated 8/12/19 to remove existing
piping) proposal dated August 6, 2019 which fully describes the work to be performed.
Such work will hereafter be called the “Work”.
d. Related documents listed under Section 1 above.
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3. TERM AND SCHEDULING
a. The Contractor agrees to commence work pursuant to the written Notice to Proceed.
b. The Contractor agrees to complete substantially all Work by October 31, 2019.
c. Time is of the essence with respect to all dates specified in the Contract Documents as
Completion Dates.
d. The Contractor shall perform the Work in the time, manner, and form required by the
Contract Documents and as stipulated in a written Notice-to-Proceed to be executed by the
Contractor and Owner.
e. It is expressly understood that the Owner will employ other contractors to perform work as
a part of the Project whose work will be performed simultaneously and sequentially with
the performance of the Work by the Contractor. It shall be necessary for the Contractor to
coordinate its activities with such other contractors, particularly with respect to access to
work areas, storage of materials and other common facilities.
f. Should the Owner determine that the Contractor is behind schedule Owner may require, at
no additional cost to the Owner, the Contractor to expedite and accelerate its efforts,
including providing additional resources and working overtime, as necessary, to perform
the Work in accordance with the approved project schedule.
4. STANDARD OF CARE
a. The Contractor shall exercise reasonable care and diligence in performing the Work in
accordance with the highest generally accepted standards of this type of Contractor
practice throughout the United States and in accordance with applicable federal, state and
local laws and regulations applicable to the performance of these services. Contractor is
solely responsible for the professional quality, accuracy and timely completion and/or
submission of all work.
b. The Contractor shall not load or permit any part of the Work to be loaded with a weight
that will endanger its safety, intended performance or configuration.
c. Contractor shall be responsible for all errors or omissions caused by its employees, agents,
contractors, or assigns in the performance of the Agreement. Contractor shall correct any
and all errors, omissions, discrepancies, ambiguities, mistakes or conflicts at no additional
cost to the Owner.
d. Contractor is an independent contractor of Owner. Any and all employees of the
Contractor engaged by the Contractor in the performance of any work or services required
of the Contractor under this Agreement, shall be considered employees or agents of the
Contractor only and not of the Owner, 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 Contractor.
e. If activities related to the performance of this Agreement require specific licenses,
certifications, or related credentials Contractor represents that it and/or its employees,
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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.
f. The Contractor is responsible for all physical damage to owned or rented machinery, tools,
equipment, forms, and other items owned, rented or used by the Contractor and/or
Subcontractor(s) in the performance of the Work including all of Owner’s property in
Contractor’s care, custody, or control, and all such property while it is in transit.
g. The Contractor is solely responsible for obtaining all permits necessary to complete the
Work in compliance with all local, state, and federal laws.
5. PAYMENT & TAXES
a. The Owner hereby agrees to pay to the Contractor for the faithful performance of this
Agreement, and the Contractor hereby agrees to perform all of the Work for a sum not-to-
exceed Fifty Thousand Eight Hundred and Eighty Five Dollars ($50,885.00). Not later
than the fifth (5th) day of each calendar month the Contractor shall submit to the Owner ’s
Representative, generally the architect if an architect is retained on the Work, a Request for
Payment for work done during the previous calendar month.
i. The Request for Payment shall be in form of a standardized invoice or AIA
Document G702-703 appropriately addressed to Owner’s Representative at PO Box
8181, Hillsborough NC 27278 and shall show substantially the value of work done
during the previous calendar month.
ii. The amount due for payment shall be ninety-five percent (95%) of the value of
work completed since the last Request for Payment and this amount shall be paid
by the Owner on or before the last business day of the month. Owner shall retain
five percent (5%).
1. Upon Owner’s Representative’s certification that ninety percent (90%) of
the Work has been satisfactorily completed retainage may be discontinued.
Retainage may be discontinued, at Owner’s Discretion, so long as work
continues to be completed satisfactorily and on schedule.
iii. Final payment shall not be due to the Contractor until thirty (30) days after one
hundred percent (100%) of the Work, including punch list work, has been
satisfactorily completed and an appropriate affidavit as required in Section 7(c)
below has been received by Owner.
b. Should Owner reasonably determine that Contractor has failed to perform the Work related
to a Request for Payment, Owner, at its discretion may provide the Contractor ten (10)
days to cure the breach. Owner may withhold the accompanying payment without penalty
until such time as Contractor cures the breach.
i. Should Contractor or its representatives fail to cure the breach within ten (10) days,
or fail to reasonably agree to such modified schedule, Owner may immediately
terminate this Agreement in writing, without penalty or incurring further obligation
to Contractor.
ii. This section shall not be interpreted to limit the definition of breach to the failure to
perform the Work related to a Request for Payment.
c. The Contractor has included in the Contract Price and shall pay all taxes assessed by any
authority on the Work or the labor and materials used therein. It shall be the Contractor's
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responsibility to furnish the Owner documentary evidence showing the materials used and
sales and use tax paid by the Contractor and each of its subcontractors.
6. INSURANCE AND BONDS
a. Minimum requirements – Contractor shall obtain, at its sole expense, Commercial General
Liability Insurance, Automobile Insurance, Workers’ Compensation 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.orangecountync.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 applicable). Contractor shall not commence construction work until such
insurance is in effect and certification thereof has been received by the Owner's Risk
Manager.
b. Performance Bonds – Contractor shall furnish bonds covering the faithful performance of
the Contract and payment of all obligations arising under any of the Contract Documents
or related in any way to the Work. Contractor shall immediately furnish a copy of such
bonds to any requesting person who appears to be a potential beneficiary of bonds
covering payment obligations arising under any of the Contract Documents. This
subsection 6(b) applies only to Contracts of fifty thousand dollars ($50,000.00) or more
where the total cost for the project is three hundred thousand dollars ($300,000.00) or
more.
7. INDEMNITY
a. The Contractor shall indemnify, without limitation, and hold harmless to the maximum
extent permitted by law the Owner and its agents and employees from and against any and
all claims, damages, losses and expenses, including attorney's fees, arising out of or
resulting from the performance or nonperformance of the Work, provided that any such
claim, damages, loss or expense (A) is attributable to bodily injury, sickness, disease or
death or injury to, or destruction of, property, including the loss of use resulting therefrom;
and (B) is caused in whole or in part by any breach of any provision of the Agreement or
by any negligent or wrongful act or omission of the Contractor, any Subcontractor, or
supplier of the Contractor, anyone directly or indirectly employed by any of them or
anyone for whose acts any of them may be liable. The indemnification obligation under
this paragraph shall not be limited in any way by any limitation of the amount or type of
damages, compensation or benefits payable by or for the Contractor or any subcontractor
under workers' compensation acts, disability benefits acts or other employee benefit acts.
b. The Contractor shall indemnify and hold harmless Owner from any lien of whatever type
through the purchase of appropriate bonds and insurance as designated in Section 6 above.
In the event any such lien is filed against Owner’s property Contractor shall, through such
bonds and insurance or at Contractors expense, defend Owner against all such claims of
lien.
c. Upon completion of the Work the Contractor shall execute an affidavit stating there are no
unpaid debts for any work that has been done or materials that have been furnished to the
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project prior to and as of the date of substantial completion and further stating that
Contractor shall indemnify, save and protect Owner and Owner’s lender, if any, harmless
from and against any and all claims, liabilities, losses, damages, causes of action, and
expenses (including court costs and reasonable attorney’s fees related thereto) arising out
of, in connection with, or resulting from any such debts and liens. Such indemnification
shall be in a form and substance acceptable to Owner.
d. By executing this Agreement Contractor agrees to abide by and be bound by the
indemnification provisions herein and of Section 7(c) specifically.
8. DISPUTE RESOLUTION AND GOVERNING LAW
a. Any dispute with respect to any provision of, or the performance or non-performance of,
this Agreement shall be subject to the Dispute Resolution Rules and Procedures for Orange
County Design, Building Construction, Renovation, and Repair Projects. The policy is
incorporated herein by reference and may be viewed at
http://www.orangecountync.gov/departments/purchasing_division/contracts.php).
b. The laws of the State of North Carolina shall apply to the interpretation and enforcement of
this Agreement. Any and all suits or actions to enforce, interpret or seek damages with
respect to any provision of, or the performance or nonperformance of, this Agreement or
the Contract 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.
c. Notice of any claim by Owner or Contractor must be initiated by written notice to the other
Party within thirty (30) days of the occurrence of the event giving rise to the claim or
within thirty (30) days of the discovery of the event or condition giving rise to the claim,
whichever is later.
i. Should any claim be made, regardless of whether such claim is made by Owner or
Contractor, Contractor shall continue to faithfully and diligently perform the Work
in such a manner as to meet all scheduled timelines. Any failure to faithfully and
diligently perform the Work may be deemed, by the Owner, a breach of the
Contract.
ii. If a claim is made such claim shall be made to the initial decision maker, if
applicable, who may request more supporting data, reject the claim in whole or in
part, approve the claim in whole or in part or advise the parties the claim is unable
to be resolved.
iii. If a claim is made by the Owner the Owner may, but is not obligated to, notify the
surety.
9. NON–APPROPRIATION
a. Contractor acknowledges that Owner 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.
b. In the event that public funds are unavailable and not appropriated for the performance of
Owner’s obligations under this Agreement, then this Agreement shall automatically expire
without penalty to Owner immediately upon written notice to Contractor of the
unavailability and non-appropriation of public funds. It is expressly agreed that Owner
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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.
c. In the event of a change in the Owner’s statutory authority, mandate and/or mandated
functions, by state and/or federal legislative or regulatory action, which adversely affects
Owner’s authority to continue its obligations under this Agreement, then this Agreement
shall automatically terminate without penalty to Owner upon written notice to Contractor
of such limitation or change in Owner’s legal authority.
10. NOTICES
Any notice required by this Agreement shall be in writing and delivered by certified or registered
mail, return receipt requested to the following:
Owner: Contractor:
Orange County Warren Hay Mechanical Contractors Inc.
Attn: Angel Barnes Ron LaPann, Project Manager
P.O. Box 8181 PO Box 818
Hillsborough, NC 27278 Hillsborough, NC 27278
11. MISCELLANEOUS
a. Duties and Obligations imposed by the Contract Documents shall be in addition to any
Duties and Obligations imposed by state, federal or local law, rules, regulations and
ordinances.
b. No act or failure to act by the Owner or Contractor shall constitute a waiver of any right or
duty granted them under the Contract Documents, nor shall any act or failure to act
constitute any approval except as specifically agreed in writing.
c. The Work shall be tested and inspected as required by the Contract Documents and as
required by law. Unless prohibited by law the costs of all such tests and inspections
related to state and federal codes such as ADA, Administrative, Electrical, Plumbing,
Mechanical and Building Codes shall be borne by the Contractor. The costs for material
and structural testing shall be conducted by an independent third party at the expense of the
Owner. Delays related to any of the aforementioned tests and inspections shall not be
grounds for delaying the completion of the work. If any such tests and inspections reveal
deficiencies in the Work such that the Work does not comply with terms or requirements
of the Contract Documents and/or the requirements of any code or law the Contractor is
solely responsible for the cost of bringing such deficiencies into compliance with the terms
of the Contract Documents and/or any code or law.
d. Should the Architect, if an architect is retained for the project involving the Work, or
Owner reject any portion of the Work for failing to comply with the Contract Documents
Contractor shall immediately, at Contractor’s expense, correct the Work. Any such
rejection may be made before or after substantial completion. If applicable, any additional
expense borne by the Architect under this section shall be paid at Contractor’s expense.
e. The Contractor shall not assign any portion of this Agreement nor subcontract the Work in
its entirety without the prior written consent of the Owner.
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f. By executing this Agreement Contractor affirms that Contractor and any subcontractors of
Contractor are and shall remain in compliance with Article 2 of Chapter 64 of the North
Carolina General Statutes.
g. By executing this Agreement Contractor certifies that Contractor 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.
h. By executing this Agreement Contractor certifies that Contractor 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.
i. The County has designated (Angel Barnes) to act as the County's representative with
respect to the Work and shall have the authority to render decisions within guidelines
established by the County Manager and/or the County Board of Commissioners and shall
be available during working hours as often as may be reasonably required to render
decisions and to furnish information.
j. Contractor 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 non-
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 the Orange County Non-Discrimination Policy 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.
k. 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 intent of the Parties to comply with Article 11A and
Article 40 of North Carolina General Statute Chapter 66.
12. CONSEQUENTIAL AND LIQUIDATED DAMAGES
a. Owner and Contractor mutually waive any claim against each other for consequential
damages. Consequential Damages include:
i. Damages incurred by Owner for loss of use, income, financing, or business.
ii. Damages incurred by Contractor for office expenses, including personnel, loss of
financing, profit, income, business, damage to reputation, or any other non-direct
damages.
b. Liquidated damages shall be in accord with the Contract Documents. If the Contract
Documents do not otherwise address liquidated damages, such damages shall be in the
amount of five hundred dollars ($500.00) per day.
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13. TERMINATION OR SUSPENSION
a. The Owner may, without cause, order the Contractor to terminate, suspend, delay or
interrupt the Work in whole or in part for such period of time as the Owner may determine.
i. If Owner issues a written order to delay, suspend, or interrupt the Work, and such
order is not due to or as a result of any fault on the part of the Contractor or any
subcontractor, the Contractor may recover a per diem amount of five hundred
dollars ($500.00) per day with a not-to-exceed limit of ten thousand dollars
($10,000.00).
ii. In the event of termination by the Owner under this Agreement, the Contractor
shall be entitled to receive its reasonable and documented direct costs prior to
termination, including the cost of materials purchased for the Work which
purchases cannot be canceled or which material cannot reasonably be used by the
Contractor on other work, and the cost of closing down the work in a safe and
efficient manner.
iii. If Owner elects to suspend or terminate the contract pursuant to subparagraphs
13.a.i. or 13 a.ii. the sole remedy available to the Contractor are those listed in the
subparagraphs and Contractor is not entitled to any right to further claims for any
amount owed or disputed or for payment of damages alleged to have been sustained
as a result of Owner’s order to delay, suspend, or interrupt the Work.
b. The Owner may, with cause, order the Contractor to suspend, delay or interrupt the Work
in whole or in part for such period of time as the cause remains.
i. If Owner issues a written order to delay, suspend, or interrupt the Work, and such
order is due to or as a result of any fault on the part of the Contractor or any
subcontractor, the Owner may reduce payment at a per diem amount of five
hundred dollars ($500.00) per day.
c. Contractor may terminate the Contract if, at the Owner’s written direction, the Work is
stopped for twenty one (21) consecutive days through no act or fault of the Contractor,
their agents or employees, or a subcontractor or their agents or employees or any other
person performing work pursuant to the Contract Documents. Contractor may terminate
the Contract if a Court or other Public authorit y having jurisdiction enters a lawful order
that requires all work to be stopped and such stoppage lasts for twenty one (21)
consecutive days.
14. ENTIRE AGREEMENT
All of the documents listed, referenced or described in this Agreement, the written Notice-to-
Proceed, together with Modifications made or issued in accordance herewith are the Contract Documents,
and the work, labor, materials and completed construction required by the Contract Documents and all
parts thereof is the Work. The Contract Documents constitute the entire agreement between Owner and
Contractor. This Agreement may be amended only by written instrument signed by both parties.
Modifications may be evidenced by facsimile signatures. If any provision of the Agreement shall be
declared invalid or unenforceable, the remainder of the Agreement shall continue in full force and effect.
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[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and
date first above written wholly or in a number of counterparts each of which shall, without proof or
accounting for other counterparts, be deemed an original contract.
ORANGE COUNTY CONTRACTOR
____________________________________ ________________________________________
Signature Signature
County Manager
________________________________________
Printed Name and Title
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Heating and Air Conditioning
P.O. Box 818 • Hillsborough, NC 27278
919-732-4362
919-732-8660 Fax
State License #7211 www.warren-hay.com
6-13-2012 / 8/14/2012 /August 6, 2019
Orange County Public Works
Re: Boiler pipe replacement
PROPOSAL
We hereby submit specifications and estimates for: As noted:
x Excavate new ditch alongside of existing underground piping. Install new pre insulated
hot water piping. Install new in ground vault. Vault will contain new isolation valves that
will allow isolation of individual buildings when in need of service.
x Once piping is complete and tested there will be a clean and flush of all new piping
before piping is tied-in to existing hot water system. After clean and flush a shutdown
will be required to allow tie-ins to the boiler and adjacent buildings. The ditch will be
excavated, back field and compacted per county codes inspections.
x Provide all materials, and labor (During normal business hours).
x Proposal with pre insulated carbon steel piping. (1 year warranty on pipe and materials)
We propose hereby to furnish material and labor: $44,085.00
Payment to be made at completion of scoped work.
Requested Alternate
x Provide & install pre-insulated Polypropylene pipe in lieu of steel above.Add $6,800.00
Exclusions / Clarifications:
x Guarantee, warranty of existing equipment (boiler shut down, start-up by others).
x After hour, overtime, premium labor, expedited shipment
x Unsuitable soils, this work base on reinstalling removed dirt and restoring back to existing finish. If
soil is unsuitable to place back for coverage additional cost will be charged on time and material basis.
ACCEPTANCE OF PROPOSAL:The above prices, specifications and conditions are
satisfactory and are hereby accepted. You are authorized to do the work as specified. Payment
will be made as outlined above.
Signature: __________________________________Date:________________________
Respectfully submitted by: Ron LaPann Commercial Division valid for 30 days ron.lapann@warren-hay.com
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919-732-4362 Office 919-612-6850 Mobile
www.warren-hay.com
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919-732-4362 Office 919-612-6850 Mobile
www.warren-hay.com
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ORANGE COUNTY
NORTH CAROLINA
DISPUTE RESOLUTION RULES AND PROCEDURES FOR ORANGE COUNTY DESIGN, BUILDING
CONSTRUCTION, RENOVATION, AND REPAIR PROJECTS
RULE 1. INITIATING MEDIATED SETTLEMENT CONFERENCES
A. Purpose of Mandatory Settlement Conferences. Pursuant to G.S. §143-128(f1) and 143-
135.26(11), these Rules are promulgated to implement a mediated settlement program designed to
focus the parties’ attention on settlement rather than on claim preparation and to provide an
opportunity for orderly settlement negotiations to take place. Nothing herein is intended to limit or
prevent the parties from engaging in settlement procedures voluntarily at any time prior to or during
commencement of the dispute resolution process.
B. Initiating the Dispute Resolution Process
1. Any party to a County public construction contract (referred to herein generally as the
“Contract”) governed by Article 8. Ch. 143 of the General Statutes and identified in G.S. § 143-
128(f1) and who is a party to a dispute arising out of the Contract and the construction process
in which the amount in controversy is at least $15,000 may submit a written request to the
County for mediation of the dispute.
2. Prior to submission of a written request for mediation to the County, the party requesting
mediation should give notice of any and all claims in accordance with their respective contracts,
obtain decisions on the claims as required or allowed by their respective contracts, and attempt
to resolve the dispute according to the terms and conditions in their respective contracts. The
Mediator may adjourn any mediated settlement conference if the Mediator believes, in his or
her sole discretion, that the parties have not satisfied all of the terms and conditions of their
respective contracts and that doing so will enhance the prospects for a negotiated settlement.
C. Condition Precedent to Litigation. Before any party to a Contract may commence a civil action
against the County seeking remedies for breach or non-performance of the Contract by the County, said
party must first initiate the dispute resolution process under these rules and attend and participate in
good faith in the mediated settlement conference.
RULE 2. SELECTION OF MEDIATOR
A. Mediator Listing. A List of Mediators acceptable to the County is maintained by the County Attorney
and that list is incorporated by reference into these Rules.
B. Selection of Mediator. The party requesting mediation shall select a Mediator from the List of
Mediators and shall file, with the County, a Notice of Selection of Mediator within 21 days of the request
for mediation. Such notice shall state the name, address, and phone number of the Mediator selected. If
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the Mediator selected is not available or declines to participate for any reason, the requesting party
shall select another person from the List of Mediators. If the party requesting mediation does not select
and designate a mediator within 21 days of the request for mediation, the County shall have the right in
its absolute discretion to appoint a mediator from its List of Mediators.
C. Disqualification of Mediator. Any party may request replacement of the Mediator for good cause.
Nothing in this provision shall preclude Mediators from disqualifying themselves.
RULE 3. THE MEDIATED SETTLEMENT CONFERENCE
A. Where Conference is to be Held. Unless all parties and the Mediator otherwise agree, the mediated
settlement conference shall be held in county seat of Orange County. The Mediator shall be responsible
for reserving a place, making arrangements for the conference, and giving timely notice of the time and
location of the conference to all attorneys, unrepresented parties and other persons or entities required
to attend.
B. When Conference is to be Held. The mediation shall be completed within 90 days after selection of
the Mediator unless all parties to the mediation agree to a different schedule.
C. Request to Accelerate or Extend Deadline for Completion. Any party or the Mediator may request
the County to accelerate or extend the deadline for completion of the conference. Such request shall
state the reasons the acceleration or extension is sought and shall be served by the moving party upon
the other parties and the Mediator. Objections to the request must be promptly communicated to the
County and to the Mediator.
The County, with the concurrence of the designated Mediator, may grant the request by adjusting the
time for completion of the conference.
D. Recesses. The Mediator may recess the mediation conference at any time and may set times for
reconvening. If the Mediator determines the time and place where the conference is to reconvene
before the conference is recessed, no further notice is required to persons present at the conference.
E. Project Delay. The mediated settlement conference that results from a construction contract dispute
shall not be cause for the delay of the construction project.
RULE 4. DUTIES OF PARTIES AND OTHER PARTICIPANTS IN FORMAL DISPUTE RESOLUTION PROCESS
A. Attendance.
1. All parties to the dispute must designate an official representative to attend the mediation.
2. “Attendance” means physical attendance, not by telephone or other electronic means. Any
attendee representing a party must have authority from that party to bind it to any agreement
reached as a result of the mediation.
3. Attorneys representing parties may attend the mediation, but are not required to do so.
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4. Sureties and insurance company representatives are required to physically attend the
mediation unless the Mediator and all of the other parties to the mediation excuse their
attendance or consent to their attendance by telephone or other electronic means.
5. The parties who attend a duly scheduled mediation conference shall have the right to recover
their share of the Mediator’s compensation from any party or parties who fail to attend the
conference without good cause.
B. Finalizing Agreement. If an agreement is reached in the conference, the terms of the agreement shall
be confirmed in writing and signed by all parties.
C. Payment of Mediation Fee: Mediation Fees charged by the Mediator shall be paid in accordance with
G.S. § 143-128(f1).
D. Failure to Compensate Mediator. Any party’s failure to compensate the Mediators in accordance
with G.S. § 143-128(f1) shall subject that party to a withholding by the County of said amount of money
from the party’s payment or any other moneys owed by that party to the County.
Should the County fail to compensate the Mediator, it shall hereby be subject to a civil cause of action
from the Mediator for the County’s portion of the Mediator’s total fee as required by G.S. § 143-128(f1).
RULE 5. AUTHORITY AND DUTIES OF MEDIATORS
A. Authority of Mediator.
1.Control of Conference. The Mediator shall at all times be in control of the conference and the
procedures to be followed.
2.Private Consultation. The Mediator may communicate privately with any participant or
counsel prior to and during the conference. The fact that private communications have occurred
with a participant shall be disclosed to all other participants at the beginning of the conference.
3.Scheduling the Conference. The Mediator shall make a good faith effort to schedule the
conference at a time that is convenient with the participants, attorneys and Mediator. In the
absence of agreement, the Mediator shall select the date for the conference.
4.Determining good cause for a party’s failure to appear at a scheduled mediation conference.
B.Duties of Mediator.
1.The Mediator shall define and describe the following at the beginning of the conference:
a.The process of mediation.
b.The difference between mediation and other forms of conflict resolution.
c.The costs of the mediated settlement conference.
d.That the mediated settlement conference is not a trial, the Mediator is not a judge,
and the parties retain their legal rights if they do not reach settlement; however, the
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Mediator will advise all parties that failure to appear at mediation without good cause
may result in imposition of sanctions and may be asserted as a bar to lawsuits by
claimants who have failed to exhaust this administrative remedy.
e.The circumstances under which the Mediator may meet and communicate privately
with any of the parties or with any other person.
f.Whether and under what conditions communications with the Mediator will be held in
confidence during the conference.
g.The inadmissibility of conduct and statements as provided by G.S. §7A-38.1(1).
h.The duties and responsibilities of the Mediator and the participants.
i.That any agreement reached will be reached by mutual consent.
2. Disclosure: The Mediator has a duty to be impartial and to advise all participants of any
possible bias, prejudice or partiality.
3. Declaring Impasse: The Mediator may determine at any time during the mediation conference
that an impasse exists and that the conference should end.
4. Reporting Results of Conference. The Mediator shall submit a written report to the County
and the other parties within 10 days of the conference stating whether or not the parties
reached an agreement. The Mediator’s report shall indicate the absence of any party from the
mediated settlement conference without permission or good cause.
5. Scheduling and Holding the Conference. It is the duty of the Mediator to schedule the
conference and conduct it prior to the deadline of completion set by the rules. The Mediator
shall strictly observe deadlines for completion of the conference unless said time limit is
changed by agreement of the parties.
RULE 6. COMPENSATION OF THE MEDIATOR
The parties shall compensate the Mediator for mediation services at the rate proposed by the Mediator
and agreed to by the parties at the time the Mediator is selected.
RULE 7. RULE MAKING
These Rules may be amended by the County at any time. Amendments will not affect mediations where
claims and/or requests for mediation have been filed at the time the amendment takes effect.
RULE 8. DEFINITIONS
A. “County” shall mean Orange County North Carolina.
B. “Project Designer” is that person or firm stipulated as project designer in the Contract Documents for
the project.
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C. “Claim” is a demand or assertion by a party seeking adjustment or interpretation of Contract terms,
payment of money, extension of time or other relief with respect to the terms of the Contract. The term
“Claim” also includes other disputes and matters in question between the parties to a Contract involved
in the County’s building construction renovation and repair projects arising out of or relating to the
Contract or the construction process. Claims must be initiated by a written notice. The responsibility to
substantiate Claims shall rest with the party making the Claim.
D. “Good Cause” generally includes any circumstance beyond the control of a party, which prevents that
party from meeting obligations. When good cause is asserted as an excuse for a party’s failure to appear
at a mediation conference or to otherwise comply with the requirements of these Rules, the Mediator,
in his or her sole discretion, will determine whether good cause exists to excuse the party’s failure to
appear or otherwise comply with these rules.
RULE 9. TIME LIMITS
A. Any time limit provided for by these Rules may be waived or extended at the sole discretion of the
County, if no Mediator has been selected, and at the discretion of the County with concurrence of the
Mediator if a Mediator has been selected.
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Contract Startup Checklist
Version 1 3/20/2019 Page 1
It is the responsibility of each agency to ensure all contractual obligations are met and contract
monitoring is documented. This checklist serves as a tool to assist the agency during that process.
(Include in the contract monitoring folder/binder.)
Completed By: Angel Barnes
Department: AMS
Contract Begin/End Date: 9/1/19 to 10/31/19 Name of Vendor / Contractor: Warren-Hay
Signatures:
Capital Projects Manager ______________________________________Date_________________
Asset Mgmt. Services Director______________________________________Date_________________
Deputy County Manager ______________________________________Date_________________
Note: Once all signatures are received on contract and checklist, notice to proceed shall be issued.
Contract Management Activities
YES NO N/A
General
Does the contract file contain a copy of the signed, executed current contract?
X
Does the contract file have a copy of all attachments listed in the contract?
X
Does the contract file have all bid addendums?
X
Does the contract file contain contact information and a call log for Contractor’s key
personnel?
X
Does the contract file contain a copy of Dispute Resolution Rules and Procedures?
X
Does the contract file clearly state the Contractor’s “Legal Notices” address?
X
Does the contract file include a copy of the insurance certificate?
X
Does the contract file contain any necessary licenses, certifications, etc.?
X
Does the contract file contain all warranty information?
X
Does the contract file contain all specifications, drawings or manuals incorporated into
the contract by reference?
X
Does the contract file contain a list of all information furnished to the contractor during
bidding?
X
Does the contract file contain a list of government furnished property or services?
X
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