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HomeMy WebLinkAbout2025-193-E-Arts Commission-Orange County Arts Alliance-Orange County Arts AllianceFeb 2025 v2 1 TITLE Eno River Arts Mill FY 2024-25 NORTH CAROLINA MEMORANDUM OF AGREEMENT ORANGE COUNTY This Memorandum of Agreement (hereinafter “Agreement”), made and entered into this 7th day of May, 2025, (“Effective Date”) by and between Orange County, North Carolina a political subdivision of the State of North Carolina (hereinafter, the "County") and Orange County Arts Alliance, (hereinafter, the "Alliance"). WITNESSETH: That the County and Alliance, for the consideration herein named, do hereby agree as follows: 1. Services a.Scope of Work. i)This Agreement is for services to be rendered by Alliance to County with respect to the operations of the Eno Arts Mill Art Studios (hereinafter, “Eno Mill”, “Art Mill Studios”, or “Facility”) and various festivals and events. ii)By executing this Agreement, the Alliance represents and agrees that Alliance 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. iii) Time is of the essence with respect to this Agreement. iv)The services to be performed under this Agreement consist of Basic Services, as described and designated in Section 3 hereof. Compensation to the Alliance for Basic Services under this Agreement shall be as set forth herein. 2.Responsibilities of the Alliance a.Services to be provided. The Alliance shall provide the County with all services required in Section 3 to satisfactorily complete the Project within the time limitations set forth herein and in accordance with the highest professional standards. b. Standard of Care. i)The Alliance shall exercise reasonable care and diligence in performing services under this Agreement in accordance with the highest generally accepted standards of this type of Alliance practice throughout the United States and in accordance with applicable federal, state and local laws and regulations applicable to the performance of these services. Alliance is solely responsible for the professional Docusign Envelope ID: 98F886E3-9716-479A-A626-18F9E717D58A Feb 2025 v2 2 quality, accuracy and timely completion and submission of all work related to the Basic Services. ii) Alliance shall be responsible for all errors or omissions of its agents, contractors, employees, or assigns in the performance of the Agreement. Alliance shall correct any and all errors, omissions, discrepancies, ambiguities, mistakes or conflicts at no additional cost to the County. iii) The Alliance 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. iv) Alliance is an independent contractor of County. Any and all employees of the Alliance engaged by the Alliance in the performance of any work or services required of the Alliance under this Agreement, shall be considered employees or agents of the Alliance 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 Alliance. v) If activities related to the performance of this Agreement require specific licenses, certifications, or related credentials Alliance represents that it 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. vi) In determining the Basic Services to be provided, should any documents be referenced in this Agreement, the terms of this Agreement shall have priority in any conflict between the terms of referenced documents and the terms of this Agreement. vii) Should this Agreement involve project designs, the construction or creation of which is to be bid out or fulfilled by other contractors, and bidding or negotiation with contractors produce prices which, when added to the other elements of the approved total project cost, produce a cost that is in excess of the approved total project cost, the Alliance shall participate with the County in negotiation and design adjustments to the extent such are necessary to obtain prices within the approved total project cost. All activity of the Alliance with respect to these matters shall constitute Basic Services and shall be performed by the Alliance without additional compensation. If negotiation and design adjustments fail to bring costs within the total project cost the County may reject all bids and Alliance will redesign or reduce portions of the project in an effort to reduce the bid prices to within the total project cost and rebid the project. One such redesign is included within Basic Services. If this second letting for bids does not produce bids that are within the approved total project cost initially or after negotiations with the contractor the cost is not reduced to an amount within the total project cost, the Alliance is not obligated to engage in further redesign. Docusign Envelope ID: 98F886E3-9716-479A-A626-18F9E717D58A Feb 2025 v2 3 3. Basic Services a. Basic Services. The Services to be rendered pursuant to this Agreement are as follows: i) The Alliance shall be responsible for the following tasks directly related to the operations of the mill: 1. Inventory management of gallery work, sales tracking, and timely issuing of artist payments. 2. Provide the proper custody and care of any property furnished to its for use in connection with this Agreement and be responsible for any loss or damage of such property. 3. Class registration management, fees, and timely issuing of teacher checks 4. Concession sales, including alcohol (the Alliance will be the on-premise ABC license holder) during certain special events 5. Payment of related sales and admissions tax 6. Maintain a separate and distinct financial account system including detailed records of all forms of payment and consideration received in support of these activities. 7. Abide by all separate lease agreements and policies regarding the Facility space. ii) The Alliance shall also be responsible for the following tasks related to festivals and events hosted by the County (including Uproar): 1. Solicitation of funds and in-kind donations to the County 2. Payment disbursements to prize winners 3. Marketing and printing 4. Acknowledgement of all supporters and sponsors b. County Obligations. The County will be responsible for the following tasks: 1. Providing the facility space including utilities. 2. Make available county staff to manage the operations and programs of the space. 3. Serve as revocable license holder for mill studio tenants and process monthly tenant rent payments. 4. Provide the funding for prize winners 4. Duration of Services a. Term. The term of this Agreement shall be from the execution of this agreement to October 1, 2027 b. Scheduling of Services. i) The Alliance shall schedule and perform its activities in a timely manner. ii) Should the County determine that the Alliance is behind schedule, it may require the Alliance to expedite and accelerate its efforts, including providing additional resources and working overtime, as necessary, to perform its services in accordance with the approved project schedule at no additional cost to the County. iii) The Commencement Date for the Alliance's Basic Services shall be upon execution of this agreement. 5. Compensation Docusign Envelope ID: 98F886E3-9716-479A-A626-18F9E717D58A Feb 2025 v2 4 a. Compensation for Basic Services. Compensation for Basic Services shall be limited to the services described above at sections 3(a) and shall not include any amount of monetary payment. b. Disputes. In the event of a dispute, the County, without fault or penalty, may withhold all or a portion of the services described above at section 3(a)(ii) as well as withhold any payment associated with the work to be performed until such time as said work is completed. c. Additional Services. County shall not be responsible for costs related to any services in addition to the Basic Services performed by Alliance unless County requests such additional services in writing and such additional services are evidenced by a written amendment to this Agreement. 6. Responsibilities of the County a. Cooperation and Coordination. The County has designated Katie Murray, director of the Orange County Arts Commission, to act as the County's representative with respect to the Project who shall have the authority to render decisions within guidelines established by the County Manager or the County Board of Commissioners and who shall be available during working hours as often as may be reasonably required to render decisions and to furnish information. 7. Insurance a. General Requirements. Alliance 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 consist of N/A. Alliance shall not commence work until such insurance is in effect and certification thereof has been received by the County's Risk Manager. 8. Indemnity a. Indemnity. To the extent authorized by North Carolina law the Alliance agrees, without limitation, to defend, 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 Alliance 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 Alliance to indemnify the County to the fullest extent permitted under North Carolina law. 9. Amendments to the Agreement Docusign Envelope ID: 98F886E3-9716-479A-A626-18F9E717D58A Feb 2025 v2 5 a. Changes in Basic Services. 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 Alliance. The Alliance shall proceed to perform the Services required by the Amendment only after receiving a fully executed Amendment from the County. 10. Termination a. Termination for Convenience of the County. This Agreement may be terminated without cause by the County and for its convenience upon seven (7) days’ prior written notice to the Alliance. b. Other Termination. The Alliance 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 Alliance shall give the County seven (7) days' prior written notice of its intent to terminate this Agreement for cause. Either party may terminate this Agreement upon notice to the other party that obligations pursuant to this Agreement are made impractical due to declarations of emergency by Orange County or by North Carolina due to events directly impacting Orange County. Both parties shall remain responsible for all payment and performance due up to the receipt of such notice, but shall have no further obligation or responsibility beyond that date provided the terminating party has taken all reasonable steps to complete the performance of its obligations. c. Compensation After Termination. i) In the event of termination, the Alliance shall immediately pay that portion of the fees and expenses that it has incurred to the date of termination, in addition to any costs or expenses incurred or anticipated to be incurred by the County due to errors or omissions of the Alliance. Upon request of the County, the Alliance shall submit to County all relevant documentation, including but not limited to, job cost records, to support its claims for final compensation. ii) Should this Agreement be terminated, the Alliance 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. d. Waiver. The payment of any sums by the County under this Agreement or the failure of the County to require compliance by the Alliance 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. e. Suspension. County may suspend the Basic Services and this Agreement at any time for County’s convenience and without penalty to County upon three (3) days’ notice to Alliance. Upon any suspension by County, Alliance shall discontinue work on the Basic Services and shall not resume the Basic Services until notified to proceed by County. Docusign Envelope ID: 98F886E3-9716-479A-A626-18F9E717D58A Feb 2025 v2 6 11. Financial Audit or AUP a. Financial Audit. The Alliance shall engage an independent CPA firm to complete a financial audit for the period ending June 30, 2025 and annually thereafter. The financial review and subsequent financial audits should be completed within 180 days from the end of the fiscal year. A copy of the financial review, financial audits, management letters and findings shall be furnished to the County. i) Agreed Upon Procedures. In lieu of a Financial Audit, the Alliance may engage a CPA firm to conduct Agreed Upon Procedures (AUP) for internal controls review, cash testing (handling and disbursement), payroll testing (County FTE) and revenue testing. To the extent that the Alliance does not have the funds to complete this AUP, then the County will provide this funding in an amount not to exceed $5,000. b. Balances to Carry Over. Following the close of each fiscal year, the Alliance shall distribute to the County all balances due to the County by July 31 of each fiscal year. If the Alliance does not have sufficient funds to meet its financial obligations to the County at the end of the fiscal year, then the Alliance should reflect such financial obligations as an accounts payable on its books and the County will reflect such financial obligation as an accounts receivable on its books. 12. Additional Provisions a. Limitation and Assignment. The County and the Alliance each bind themselves, their successors, assigns and legal representatives to the terms of this Agreement. Neither the County nor the Alliance shall assign or transfer its interest in this Agreement without the written consent of the other. b. Governing Law. 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. By executing this Agreement Alliance affirms that Alliance and any subcontractors of Alliance are and shall remain in compliance with Article 2 of Chapter 64 of the North Carolina General Statutes. By executing this Agreement Alliance certifies that Alliance 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 Alliance certifies that Alliance 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. c. Non-Discrimination. Alliance 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. Docusign Envelope ID: 98F886E3-9716-479A-A626-18F9E717D58A Feb 2025 v2 7 d. Dispute Resolution. 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. It is agreed by the parties that no other court shall have jurisdiction or venue with respect to such suits or actions. Binding arbitration may not be initiated by either Party, however, the Parties may agree to nonbinding mediation of any dispute prior to the bringing of such suit or action. e. Entire Agreement. This Agreement represents the entire and integrated agreement between the County and the Alliance and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both parties. Modifications may be evidenced by facsimile signatures. f. Severability. 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. g. Ownership of Work Product. Should Alliance’s performance of this Agreement generate documents, items or things that are specific to this Project such documents, items or things shall become the property of the County and may be used on any other project without additional compensation to the Alliance. The use of the documents, items or things 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. h. Non-Appropriation. Alliance 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 Alliance 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. In the event of a change in the County’s statutory authority, mandate or mandated functions, by state 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 Alliance of such limitation or change in County’s legal authority. i. Signatures. 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. Docusign Envelope ID: 98F886E3-9716-479A-A626-18F9E717D58A Feb 2025 v2 8 j. Notices. 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 Orange County Arts Alliance Attention: Travis Myren, Attention: Caterri Woodrum, Treasurer County Manager P.O. Box 8181 437 Dimmocks Mill Rd., Box 27 Hillsborough, NC 27278 Hillsborough, NC 27278 [SIGNATURE PAGE TO FOLLOW] Docusign Envelope ID: 98F886E3-9716-479A-A626-18F9E717D58A Feb 2025 v2 9 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. ORANGE COUNTY: ALLIANCE: By: _________________________________ Travis Myren, County Manager By: _______________________________ Caterri Woodrum, Treasurer Docusign Envelope ID: 98F886E3-9716-479A-A626-18F9E717D58A 5/7/20255/13/2025 1001486 2005 155279 205 01-19-2023 INSR LTR TYPE OF INSURANCE ADD INSD SUB WVD POLICY NUMBER POLICY EFF (MM/DD/YYYY)POLICY EXP (MM/DD/YYYY)LIMITS A COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO- JECT LOC OTHER: Y N 93-AP-H558-7 10/01/2024 10/01/2025 EACH OCCURRENCE 1,000,000$ DAMAGE TO RENTED PREMISES (Ea occurrence)300,000$ MED EXP (Any one person)5,000$ PERSONAL & ADV INJURY 1,000,000$ GENERAL AGGREGATE 2,000,000$ PRODUCTS - COMP/OP AGG 2,000,000$ $ AUTOMOBILE LIABILITY ANY AUTO OWNED AUTOS ONLY SCHEDULED AUTOSHIRED AUTOS ONLY NON-OWNED AUTOS ONLY COMBINED SINGLE LIMIT (Ea accident)$ BODILY INJURY (Per person)$ BODILY INJURY (Per accident)$ PROPERTY DAMAGE (Per accident)$ $ UMBRELLA LIAB OCCUR EXCESS LIAB CLAIMS-MADE DED RETENTION $ EACH OCCURRENCE $ AGGREGATE $ $ WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below Y / N N / A PER STATUTE OTH- ER $ E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYEE $ E.L. DISEASE - POLICY LIMIT $ SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. CANCELLATION AUTHORIZED REPRESENTATIVE 04/29/2025This form was system-generated on . E-MAIL ADDRESS:rick.ashby.bo5g@statefarm.com CONTACT NAME:Rick Ashby PHONE (A/C, No, Ext):919-732-1052 FAX (A/C, No): INSURER(S) AFFORDING COVERAGE NAIC # INSURER A :State Farm Fire and Casualty Company 25143 INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : PRODUCER INSURED Rick Ashby 1000 Corporate Drive Suite 101 Hillsborough NC 27278 ORANGE COUNTY ARTS ALLIANCE # 27 437 DIMMOCKS MILL RD STE 17 HILLSBOROUGH NC 272782379 REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or 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). 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. 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. DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) 04/29/2025 ACORD 25 (2016/03) © 1988-2015 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER Orange County 300 W Tryon St Hillsborough NC 27278 The ACORD name and logo are registered marks of ACORD Docusign Envelope ID: 98F886E3-9716-479A-A626-18F9E717D58A Docusign Envelope ID: 98F886E3-9716-479A-A626-18F9E717D58A Feb 2025 v2 10 ORANGE COUNTY—DEPARTMENT USE ONLY ______________________________________________________________________________ Party/Vendor Name: Orange County Arts Alliance Party/Vendor Contact Person: Katie Murray Contact Phone: 910-409-5799 Party/Vendor Address: 437 Dimmocks Mill Rd., Box 27 City Hillsborough State: NC Zip: 27278 Department: Cnty Mngr Amount: Purpose: Budget Code(s): Vendor # (N/A if new vendor) Vendor is a BOCC consultant? Yes No Contract Type: (Check one) New Renewal Amendment Effective Date Approved by Board Yes No Agenda Date: This agreement is approved as to technical form and content and I as Department Director affirmatively state work on this project has not been initiated prior to execution of the agreement: Department Director’s Signature ________________________________________ Date: ________ Agreements for emergency services or repair are not subject to the above affirmation. If services related to this agreement have already begun or been completed please briefly describe the nature of the emergency condition that was addressed: Information Technologies (Applicable only to hardware/software purchases or related services) This agreement has been reviewed and is approved as to information technology content and specifications: Office of the Chief Information Officer___________________________________ Date: ________ Risk Management This agreement is approved for sufficiency of insurance standards, specifications, and requirements: Office of the Risk Management Officer___________________________________ Date: _________ Financial Services This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act: Office of the Chief Financial Officer ____________________________________ Date: _________ Legal Services This agreement is approved as to legal form and sufficiency: Office of the County Attorney __________________________________________Date: ________ Clerk to the Board Received for record retention: All Docusign contracts must be copied to the Clerk upon completion: occlerkdocs@orangecountync.gov The following signature block is for hard copies only and is not required for Docusign contracts: Office of the Clerk to the Board __________________________________________Date:_________ Docusign Envelope ID: 98F886E3-9716-479A-A626-18F9E717D58A 5/7/2025 5/12/2025 5/12/2025 5/12/2025