NCS000456_Master Service Agreement Aqualis_20201218

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STATE OF NORTH CAROLINA Contract Identification # Q — b
COUNTY OF WAKE MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT is entered into this the _13th day of
_July , 2020, by and between, Aqualis Stormwater Management, a North Carolina
Corporation with its principal business offices located at 2510 Meridian Parkway, Suite 350;
Durham, NC 27713 (the "Contractor"), and the Town of Apex, a municipal corporation of the
State of North Carolina, (the "Town"). Town and Contractor may collectively be referred to as
"Parties" hereinafter.
WITNESSETH:
WHEREAS, Town, is engaged in the operation and maintenance of Town -owned
Stormwater Control Measures (SCMs); and
WHEREAS, the professional services of outside firms or consultants and/or others will
from time to time in the future be needed by the Town for the services as described above; and
WHEREAS, Contractor provides professional services of the nature required by the Town
and employs trained and experienced technical personnel possessing adequate knowledge, skills,
and experience to provide such professional services to the Town; and
WHEREAS, the Parties contemplate that the services of the Contractor will be performed
in various stages in accordance with separate authorizations to be issued by the Town, and the
Parties desire to set forth the basic terms of their agreement in this Master Services Agreement
rather than in the separate authorizations issued by the Town; and
WHEREAS, the Parties acknowledge and agree that this Agreement shall act as a base
agreement under which the Parties can enter into multiple specific transactions by executing a
Purchase Order and written confirmation to proceed pursuant to a Scope of Services and/or rate
sheet; and
WHEREAS, the Parties agree that this Agreement is non-exclusive and does not require or
commit the Contractor to being available to perform services until a Scope of Services is submitted,
and does not preclude the Town from hiring other vendors or contractors to perform the same or
similar work.
NOW THEREFORE, in consideration of the foregoing recitals, and the premises and
mutual covenants herein contained, the receipt and adequacy of which is hereby acknowledged,
the Parties, intending to be legally bound, hereto do contract and agree as follows:
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t. SCOPE OF SERVICES.
The Contractor agrees to perform for the Town the following general services: Routine
maintenance services for Town -owned Stormwater Control Measures (SCMs) as described in the
Proposal to provide these services signed by Michael Brewer and dated June 26, 2020.
2. SPECIFICATIONS.
Upon request by the Town, Contractor will provide plans and specifications prior to engaging in
any services under this Agreement. Contractor hereby acknowledges that it is fully licensed to
perform the work contemplated by this Agreement. In the event of a conflict between the provided
plans and specifications and this Agreement, this Agreement shall control.
3. TIME OF COMMENCEMENT AND COMPLETION.
This Agreement shall remain in effect and binding for a period of three years with the option to
extend the contract for two additional one-year periods upon mutual agreement of both parties
unless terminated sooner in accordance with the terms of this Agreement. Contractor shall
commence and complete the work required by this Agreement in accordance with the dates
provided in the Scope of Services as agreed upon by the Parties. Contractor shall immediately
notify the Town of any event or circumstance that may, immediately or in the future, impede the
proper and timely execution of any work so that remedial action may be taken. Contractor shall
not begin any work pursuant to this Agreement or a Scope of Services until written confirmation
has been provided by the Town. The Parties hereby agree that written confirmation may be
provided through electronic communication from the Town. If Contractor has not satisfactorily
commenced or completed the work within the times specified, the Town may declare such delay
a material breach of contract and may pursue all available legal and equitable remedies. Any
changes to the schedule(s) provided in the Scope of Services must be agreed to in writing by the
Town and the Contractor.
4. CONSIDERATION AND PAYMENT OF SERVICES.
In consideration of the above services, the Town will pay the Contractor the amount authorized by
the issued Purchase Order corresponding to the agreed upon Scope of Services. As services are
agreed upon pursuant to this Agreement and the associated Scopes of Service, Contractor will
invoice the Town for work performed. Town has the right to require the Contractor to produce for
inspection all of Contractor's records and charges to verify the accuracy of all invoices. Town
shall pay Contractor's invoices within thirty (30) days of receipt unless a bona fide dispute exists
between Town and Contractor concerning the accuracy of said invoice or the services covered
thereby.
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S. INDEMNIFICATION.
To the extent permitted by law, the Contractor agrees to defend, pay on behalf of, indemnify, and
hold -harmless the Town of Apex, its elected and appointed officials, employees, agents, and
volunteers against any and all claims, demands, suits or losses, including all costs connected
therewith, for any damages which may be asserted, claimed or recovered against or from the Town
of Apex its elected or appointed officials, employees, agents, and volunteers by reason of personal
injury, including bodily injury or death and/or property damage, including loss of use thereof
resulting from the negligence of the Contractor.
6. APPLICABILITY OF LAWS AND REGULATIONS.
The Contractor shall adhere to all laws, ordinances, and regulations of the United States, the State
of North Carolina, the County of Wake, and the Town of Apex in the performance of the services
outlined in this contract and any attached specifications. The Parties agree that this Agreement
shall be governed and construed in accordance with the laws of the State of North Carolina and all
disputes hereunder shall be resolved in accordance with the laws of the State of North Carolina.
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The Contractor shall comply with the requirements of Article 2 of Chapter 64 of the North Carolina
General Statutes (E-Verify). Contractor shall require all of the Contractor's subcontractors to
comply with the requirements of Article 2 of Chapter 64 of the North Carolina General Statutes
(E-Verify).
8. QUALITY AND WORKMANSHIP.
All work shall be performed to the satisfaction of the Town. The work shall not be considered
complete nor applicable payments rendered until the Town is satisfied with the services provided.
Contractor shall provide services in accordance with all federal, state and local law and in
accordance with all governing agency regulations and shall be held to the same standard and shall
exercise the same degree of care, skill and judgment in the performance of services for the Town
as is ordinarily provided by a similar professional under the same or similar circumstances at the
time in North Carolina.
9. INSURANCE.
The Contractor shall maintain valid general liability insurance in the minimum amount of
$1,000,000, commercial automobile liability insurance in the minimum amount of $2,000,000, and
provide certificates of such insurance naming the Town of Apex as an additional insured by
endorsement to the policies. If the policy has a blanket additional insured provision, the
contractor's insurance shall be primary and non-contributory to other insurance. Additionally, the
contractor shall maintain and show proof of workers' compensation and employer's liability
incur-dixe. ill the minimum auwunt of $1,000,000. The Cuiawctur sliall provide notice of
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cancellation, non -renewal or material change in coverage to the Town of Apex within 10 days of
their receipt of notice from the insurance company.
All required certificates of insurance, endorsements, and blanket additional insured policy
provisions are attached and considered part of this document. Notwithstanding the foregoing,
neither the requirement of Contractor to have sufficient insurance nor the requirement that Town
is named as an additional insured, shall constitute waiver of the Town's governmental immunity
in any respect, under North Carolina law.
10. PRE -PROJECT SAFETY REVIEW MEETING.
If requested by the Town, the Contractor shall attend a pre -project safety review meeting with the
contacting Supervisors and Safety and Risk Manager prior to the start of work.
11. DEFAULT.
In the event of substantial failure by Contractor to perform in accordance with the terms of this
Agreement, Town shall have the right to terminate Contractor upon seven (7) days written notice
in which event Contractor shall have neither the obligation nor the right to perform further services
under this Agreement.
12. TERMINATION FOR CONVENIENCE.
Town shall have the right to terminate this Agreement for the Town's convenience upon thirty
(30) days written notice to Contractor. Contractor shall terminate performance of services on a
schedule acceptable to the Town. In the event of termination for convenience, the Town shall pay
Contractor for all services satisfactorily performed.
13. NOTICE.
Any formal notice, demand, or request required by or made in connection with this Agreement
shall be deemed properly made if delivered in writing or deposited in the United States mail,
postage prepaid, to the address specified below.
TO CONTRACTOR: Attn: Jason Abert
2510 Meridian Parkway, Suite 350
Durham, NC 27713
jabert _,aqualisco.com
TO TOWN: Town of Apex
Attn: Jessica Bolin
P.O. Box 250
Apex, NC 27502
Jess ica.bolin[cr7,apexnc.org
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14. DELAY BEYOND THE CONTROL OF THE PARTIES.
Neither Contractor nor Town shall be in default of the provisions of this Agreement for delays in
performance due to forces beyond the control of the parties. "Forces beyond the control of the
parties" shall mean, but is not limited to, delay caused by fire, acts of God, flood, earthquakes,
storms, lightning, epidemic, war, riot, and/or civil disobedience.
15. NONWAIVER FOR BREACH.
No breach or non-performance of any term of this Agreement shall be deemed to be waived by
either party unless said breach or non-performance is waived in writing and signed by the parties.
No waiver of any breach or non-performance under this Agreement shall be deemed to constitute
a waiver of any subsequent breach or non-performance and for any such breach or non-
performance each party shall be relegated to such remedies as provided by law.
16. CONSTRUCTION.
Should any portion of this Agreement require judicial interpretation, it is agreed that the Court or
Tribunal construing the same shall not apply a presumption that the terms hereof shall be more
strictly construed against any one party by reason of the rule of construction that a document is to
be more strictly construed against the party who prepared the documents.
17. NO REPRESENTATIONS.
The parties hereby warrant that no representations about the nature or extent of any claims,
demands, damages, or rights that they have, or may have, against one another have been made to
them, or to anyone acting on their behalf, to induce them to execute this Agreement, and they rely
on no such representations; that they have fully read and understood this Agreement before signing
their names; and that they act voluntarily and with full advice of counsel.
18. SEVERABILiTY.
In the event for any reason that any provision or portion of this Agreement shall be found to be
void or invalid, then such provision or portion shall be deemed to be severable from the remaining
provisions or portions of this Agreement, and it shall not affect the validity of the remaining
portions, which portions shall be given full effect as if the void or invalid provision or portion had
not been included herein.
19. COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an
original, and all of which together shall constitute one instrument.
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20. MODIFICATION.
This Agreement contains the full understanding of the parties. Any modifications or addendums
to this Agreement must be in writing and executed with the same formality as this Agreement.
21. BINDING EFFECT.
The terms of this Agreement shall be binding upon the parties' heirs, successors, and assigns.
22. ASSIGNMENT
Contractor shall not assign, sublet, or transfer any rights under or interest in (including, but without
limitation, monies that may become due or monies that are due) this Agreement without the written
consent of the Town. Nothing contained in this paragraph shall prevent Contractor from
employing such independent consultants, associates, and sub -contractors as it may deem
appropriate to assist Contractor in the performance of services rendered.
23. INDEPENDENT CONTRACTOR.
Contractor is an independent contractor and shall undertake performance of the services pursuant
to the terms of this Agreement as an independent contractor. Contractor shall be wholly
responsible for the methods, means and techniques of performance.
24. NON -APPROPRIATION.
Notwithstanding any other provisions of this Agreement, the parties agree that payments due
hereunder from the Town are from appropriations and monies from the Town Council and any
other governmental entities. In the event sufficient appropriations or monies are not made
available to the Town to pay the terms of this Agreement for any fiscal year, this Agreement shall
terminate immediately without further obligation of the Town.
25. IRAN DIVESTMENT ACT CERTIFICATION.
N.C.G.S. 147-86.60 prohibits the State of North Carolina, a North Carolina local government, or
any other political subdivision of the State of North Carolina from contracting with any entity that
is listed on the Final Divestment List created by the North Carolina State Treasurer pursuant to
N.C.G.S. 147-86.58. N.C.G.S. 147-86.59 further requires that contractors with the State, a North
Carolina local government, or any other political subdivision of the State of North Carolina must
not utilize any subcontractor found on the State Treasurer's Final Divestment List. As of the date
of execution of this Agreement the Contractor hereby certifies that the Contractor is not listed on
the Final Divestment List created by the North Carolina State Treasurer and that the Contractor
will not utilize any subcontractors found on the Final Divestment List.
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26. ANTI -HUMAN TRAFFICKING.
The Contractor warrants and agrees that no labor supplied by the Contractor or the Contractor's
subcontractors in the performance of this Agreement shall be obtained by means of deception,
coercion, intimidation or force, or otherwise in violation of North Carolina law, specifically Article
10A. Subchapter 3 of Chapter 14 of the North Carolina General Statutes, Human Trafficking.
27. ELECTRONIC SIGNATURE.
Pursuant to Article 40 of Chapter 66 of the North Carolina General Statutes (the Uniform
Electronic Transactions Act) this Agreement and all documents related hereto containing an
electronic or digitized signature are legally binding in the same manner as are hard copy documents
executed by hand signature. The Parties hereby consent to use electronic or digitized signatures
in accordance with the Town's Electronic Signature Pblicy and intend to be bound by the
Agreement and any related documents. If electronic signatures are used the Agreement shall be
delivered in an electronic record capable of retention by the recipient at the time of receipt.
In witness thereof, the contracting parties; by their authorized agents, affix their signatures
and seals this _13_day of July .2020.
Contractor Town of Apes
Name: Michael Brewer
(Signature)
Title: Vice President Client Success
Attest:
(Secretary, if a corporation)
Andrew L. Havens, Town Manager
Attest:
Town Clerk
This instrument has been preaudited in the manner required by the Local Government Budget and
Fiscal Control Act. PQEf
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Finance Director
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Revision date 7/2/2020