Contract for Construction/Repair

NORTH CAROLINA

WAKECOUNTY

CONTRACT FOR CONSTRUCTION/REPAIR

(NON-MOTORIZED VOLUME COUNTER PROJECT)

THIS CONTRACT is entered into by and between ______, hereinafter referred to as the “Contractor”, and the Capital Area Metropolitan Planning Organization, a metropolitan transportation planning agencycreated and organized under Article 16 of Chapter 136 of the North Carolina General Statutes, hereinafter referred to as “CAMPO”, the parties being collectively referred to herein as the “Parties”.

BACKGROUND STATEMENT

CAMPO has entered into an agreement datedJanuary 31, 2018 with the North Carolina Department of Transportation entitled, “BIKE/PED PROGRAM MEMORANDUM OF AGREEMENT” (the “MOU”), attached hereto as Exhibit 1, the terms of which are fully incorporated into this Agreement. The MOU provides for a sharing of rights and responsibilities between CAMPO and its agents, and the Department and its agents, in installing pedestrian and bicycle counter equipment at various locations, and collecting and assembling data for the “North Carolina Non-Motorized Volume Data Program” research project (the “Project”). The Department has designated the Institute of Transportation Research and Education of North Carolina State University (“ITRE”) as its Agent in the performance of duties and activities under the MOU. The MOU further provides that CAMPO will engage a contractor to perform certain construction and installation servicesin furtherance of the Project (the “Contract Work”), under the general oversight of the Department and ITRE. Informal proposals for the Contract Work have been requested by and submitted to CAMPO, in accordance with applicable statutes, ordinances and policies. The Contractor has submitted a proposal for the Contract Work, and has agreed to perform such Work. CAMPO has agreed to engage the Contractor under the terms set forth herein

NOW THEREFORE, in consideration of the Background Statement, which is incorporated into the substantive terms of this Contract as though fully set forth herein; sums to be paid to the Contractor; and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Contractor and CAMPO do contract and agree as follows:

1. Description of the Contractor’s Work

The Contractor, at his (its) own proper cost and expense, and with skill and diligence, shall furnish all labor, tools, materials and equipment and do all things necessary (as further delineated herein) for the proper construction and completion ready for use of the non-motorized traffic counter equipment. The equipment shall be constructed and installed attwenty four (24) count stations in the municipalities of Cary, Apex, Raleigh, and Wake Forest,according to counter equipment descriptions, and at sitesenumerated, in Exhibits 2 and 3, attached.

The Contractor’s work shall include the following:

Locating utilities, traffic control, setting concrete with anchors and running conduit, if applicable, marking loop template with paint, saw cutting loops and extensions to curb/edge of pavement, cleaning channels, drilling holes and running conduit (if curb present), excavating earth for rainbird and/or handwell and/or post, wire loops, feeding wires through cuts/conduits, setting posts and /or rainbird and/or handwell, sealing loops and cleaning each site.

The performance of the Contractor’s Work shall bein strict conformance with this Contract, including Exhibits 1-3 attached hereto, and the other plans, specifications, installation guides, and other items incorporated hereinto by reference.

In the event of any conflict or inconsistencies between this Contract and any items attached or incorporated by references, the order of priority in construction of terms shall be as follows:

1. The MOU. Note: The Projectwill include twenty four (24) sites per Exhibits 2 and 3 hereof; MOU is accordingly superceded by the Contract terms to this extent.)
2. The Contract terms.
3. Contract Exhibits, attached, andOther Items Incorporated by Reference.

It is understood and agreed by the Parties that work done under this Contract shall be subject to all ordinances of the above-named municipalities relating to work done in the public streets or other public property of the respective municipalities.

2. Supervision; Contract Administration; and Co-operation Between CAMPO, ITRE, and the Contractor

The parties acknowledge that the Contractor’s work will be subject to the supervision of CAMPO, and that Project Work responsibilities are shared between the Contractor and ITRE. The Contractor and CAMPO shall exercise their best efforts to perform work collaboratively, and to co-operate fully with ITRE, to the end that the Project Work may be performed efficiently and without delay.

The Contractor shall further perform in accordance with the directions (not inconsistent herewith) given from time to time during construction by CAMPO, or such other official, employee, or other agent (including ITRE) designated by CAMPO.

3. General Obligations of the Contractor.

The Contractor will accept the sums provided for herein in full compensation and satisfaction for performance of this Contract, and as full consideration of this Contract. The Contractor shall be responsible for all loss and damages of every kind and nature which may arise out of or on account of the performance of the work required by the Contractor. The Contractor shall be responsible for well and faithfully completing the Project Work according to all applicable plans and specifications and the terms and conditions of this Contract.

4. Time of Commencement and Completion.

Within _____ days from the execution of this Contract, CAMPO shall give the Contractor Notice to Proceed with the Contract Work. The entire work required of the Contractor shall be completed by 6/30/2018 or before that date from the giving of such Notice to Proceed. With respect to the subject matter of this Contract both parties realize that time is of the essence.

5. Compensation; Payment.

In consideration of the performance of this Contract, and the full and satisfactory completion of the work required of the Contractor under the terms and conditions of this Contract, CAMPO shall pay the Contractor the sum of ______. The standard payment term is NET 30 days from the date of the contractor’s invoice to CAMPO for the Contractor’s Work. For prompt payment you may email all invoices to (). All invoices must include the following Purchase Order Number______. Invoices submitted without the correct purchase order number will result in delayed payment.

6. Quality of Work/Contractor Warranties.

The entire Contractor’s work done under this Contract shall be performed in a satisfactory and workmanlike manner, in conformance with all applicable ordinances, codes, industry standards,and the provisions of this Contract. The Contractor’s Work shall also be performed to the reasonable satisfaction of CAMPO, or such employee, official, or agent designated by CAMPO, and such employee, official, or agent of CAMPO shall in the case of disputes determine the reasonable quantity, quality, acceptability, and fitness of the Contractor’s Work, including the reasonable interpretation to be given to the plans and specifications for the Contractor’s Work.

The Contractor warrants the Work for a period of one (1) year following the date of CAMPO’s final acceptance of the Work, and will be responsible for the correction of any Contractor Work completed under this Contract that, during the warranty period,may become defective due to faulty workmanship or Contractor-supplied materials.

7. Notices.

All notices, requests for payment, or other communications arising hereunder shall be sent to the following:

To CAMPO:To the Contractor:

Kenneth Withrow, CAMPO

One City Plaza

421 Fayetteville St, Ste 203

Raleigh, NC 27601

919/996-4400

8. Non-discrimination.

To the extent permitted byNorth Carolina law, the Parties for themselves, their agents, officials, employees and servants agree not to discriminate in any manner on the basis of race, color, creed, national origin, sex, age, handicap, or sexual orientation with reference to the subject matter of this Contract. The parties further agree, to the extent permitted by law, to conform to the provisions and intent of City of Raleigh Ordinance 1969-889, as amended. This provision is hereby incorporated into this Contract for the benefit of CAMPO, its member units of local government and their respective residents, and may be enforced by action for specific performance, injunctive relief, or other remedy as provided by law. This provision shall be binding on the successors and assigns of the parties with reference to the subject matter of this Contract.

9. Minority or Women Owned Business Enterprise

In carrying out the Project Work, the Contractor shall exercise its best efforts to utilize the services of laborers, suppliers, and subcontractors, if any, representing minority or women- owned businesses.

10. Assignment.

This Contract may not be assigned without the express written consent of the CAMPO.

11. Applicable Law

All matters relating to this Contract shall be governed by the laws of the State of North Carolina, without regard to its choice of law provisions, and venue for any action relating to this Contract shall be Wake County Civil Superior Court or the United States District Court for the Eastern District of North Carolina, Western Division.

12. Insurance.

Contractor agrees to purchase at its own expense insurance overages to satisfy the following minimum requirements. A certificate reflecting the following minimum coverage shall be provided by the Contractor upon the execution of this Contract:

Workers’ Compensation Insurance:

Limits:

Workers Compensation:Statutory for the State of North Carolina

Employers Liability:Bodily Injury by Accident $1,000,000 each accident

Bodily Injury by Disease $1,000,000 policy limit

Bodily Injury by Disease $1,000,000 each employee

Commercial General Liability:

Limits:

Each Occurrence:$1,000,000

Personal and Advertising Injury$1,000,000

General Aggregate Limit$2,000,000

Products and Completed Operations Aggregate$2,000,000

CAMPO must be added as an Additional Insured to the Commercial General Liability policy.

Commercial Automobile Liability:

Limits:

$1,000,000 combined single limit.

CAMPO must be added as an Additional Insured on the Commercial Auto Liability policy.

All insurance companies must be admitted to do business in North Carolina and be acceptable to the CAMPO or its designated agent.

The acceptance of or the review of Certificates of Insurance by the CAMPO does not relieve the Contractor of any requirements in the contract to provide specific insurance coverage required by the Contract, nor does the acceptance of or review of Certificates of Insurance covenant all insurance requirements have been met.

13. Indemnity.

Except to the extent caused by the sole negligence or willful misconduct of CAMPO, the Contractor shall indemnify, hold, and save CAMPO, its officers, agents and employees, harmless from liability of any kind, including all claims, costs (including defense) and losses accruing or resulting to any other person, firm, or corporation furnishing or supplying work, services, materials, or supplies in connection with the performance of this Contract, and from any and all claims, costs (including defense) and losses accruing or resulting to any person, firm, or corporation that may be injured or damaged by the Contractor’s negligence in the performance of this Contract. This representation and warranty shall survive the termination or expiration of this Contract.

The Contractor shall indemnify, hold, and save CAMPO, its officers, agents and employees, harmless from liability of any kind, including claims, costs (including defense) and expenses, on account of any copyrighted material, patented or unpatented invention, articles, device or appliance manufactured or used in the performance of this Contract.

14. Force Majeure.

Except as otherwise provided in any environmental laws, rules, regulations or ordinances applicable to the Parties and the services to be performed under this Contract, neitherParty shall be deemed to be in default of its obligations hereunder if and so long as it is prevented from performing such obligations by an act of war, hostile foreign actions, nuclear explosion, earthquake, hurricane, tornado, or other catastrophic natural event or act of God. Either Party must take reasonable measures and implement reasonable protections when a weather event otherwise defined as a force majeure event is forecast to be eligible to be excused from the performance otherwise required under this Contract by this provision.

15. Termination.

If the Contractor fails to perform the work described herein by the time provided in Paragraph 5 hereof, or fails to provide adequate resources to properly execute the Contractor’s Work, or otherwise fails to comply with the requirements of the Contract, CAMPO may, without prejudice to any other right or remedy and, after giving the Contractor a minimum of seven (7) days from delivery of a written notice, declare the Contract in default, take possession of the project and of all equipment, tools, materials thereon owned by the Contractor and exercise appropriate legal recourse to complete the Project Work.

16. Applicability of North Carolina Public Records Law.

Notwithstanding any other provisions of this Contract, this Contract and all materials submitted to CAMPO by the Contractor are subject to the public records laws of the State of North Carolina, and it is the responsibility of the Contractor to properly designate materials that may be protected from disclosure as trade secrets under North Carolina law as such and in the form required by law prior to the submission of such materials to CAMPO. The Contractor understands and agrees that CAMPO may take any and all actions necessary to comply with federal, state, and local laws and/or judicial orders and such actions will not constitute a breach of the terms of this Contract. To the extent that any other provisions of this Contract conflict with this paragraph, the provisions of this section shall control.

17. Miscellaneous.

The Contractor shall be responsible for the proper custody and care of any property furnished or purchased by CAMPO, its agents, or ITRE, for use in connection with the performance of this Contract, and will reimburse CAMPO for the replacement value of its loss or damage. The Contractor shall keep the job sites and surrounding area reasonably free from rubbish at all times and shall remove debris from the site from time to time or when directed to do so by CAMPO. Before final inspection and acceptance of the Project, the Contractor shall thoroughly clean the job sites, and completely prepare the Project and sites.

The Contractor shall be considered to be an independent contractor and as such shall be wholly responsible for the work to be performed and for the supervision of its employees. Nothing herein is intended or will be construed to establish any agency, partnership, or joint venture. The Contractor represents that it has, or will secure at its own expense, all personnel required in performing the services under this Contract. Such employees shall not be employees of or have any individual contractual relationship with the City.

This Contract may be amended only by written agreement of the parties executed by their authorized representatives.

18. Right of Audit and Examination of Records

1. CAMPO, or its designee, may conduct an audit of any services performed and fees paid subject to this Contract. CAMPO, or its designee, may perform such an audit throughout the contract period and for three (3) years after termination thereof, or longer if otherwise required by law.

1. The Contractor and its agents shall maintain all books, documents, papers, accounting records, contract records and such other evidence as may be appropriate to substantiate costs incurred under this Contract. CAMPO, or its designee, shall have the right to, including but not limited to: review and copy records; interview current and former employees; conduct such other investigation to verify compliance with contract terms; and conduct such other investigation to substantiate costs incurred by this Contract.

1. “Records” shall be defined as data of every kind and character, including but not limited to books, documents, papers, accounting records, contract documents, information, and materials that, in CAMPO's sole reasonable discretion, relate to matters, rights, duties or obligations of this Contract.

1. Records and employees shall be available during normal business hours upon advanced written notice. Electronic mail shall constitute written notice for purposes of this section.

1. Contractor shall provide CAMPO, or its designee reasonable access to facilities and adequate and appropriate workspace for the conduct of audits.

1. The rights established under this section shall survive the termination of the Contract, and shall not be deleted, circumvented, limited, confined, or restricted by contract or any other section, clause, addendum, attachment, or the subsequent amendment of this Contract.

1. The Contractor shall reimburse CAMPO for any overcharges identified by the audit within ninety (90) days of written notice of CAMPO’s findings.
2. Contractor shall ensure that all contracts with any subcontractors provide the City with an equivalent right to audit as contained herein.

19. Incorporation of Documents/Complete Agreement.