MASTER_AGREEMENT_FOR_ON-CALL_ENGINEERING_SERVICES_Final.pdf

MASTER AGREEMENT FOR ON-CALL ENGINEERING/PROFESSIONAL SERVICES

This Master Agreement (“Agreement”) is made effective as of ________________, 20__ (“Effective Date”) by and between ___________________________, a _________________________ (the “Professional”), for itself and its successors and assigns providing professional ______________ services with a partner or principal registered in North Carolina as a registered _____________________ and the Town of Mooresville, a municipal corporation located in Iredell County, North Carolina (“Town”). Town and Professional are at times collectively referred to herein as the “Parties” or individually as a “Party”.

WHEREAS, Professional is a licensed _______________ engaged in the business of providing professional ____________________________services; and

WHEREAS, Town desires to engage Professional to provide on-call __________________ services related to _______________________ as Town may from time to time request as set forth herein and in accordance with the Town’s Request for Qualifications #_______ (“RFQ”) issued on ____________, including any and all Work Orders, supplemental agreements related hereto, all as defined herein (the “Services”); and

WHEREAS, Professional desires to provide said Services as provided for in the RFQ and herein, and has the staff, experience and resources to perform such Services; and

WHEREAS, Professional acknowledges that it is one of several firms responding to the RFQ with acceptable qualifications and is willing to serve as one of Town’s professional ________________ on an “on-call” basis for each project authorized hereunder.

NOW, THEREFORE, in consideration of the premises, mutual representations, warranties and covenants set forth herein and other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:

ARTICLE I

SCOPE OF AGREEMENT

1. General. This Agreement anticipates the future issuance of Work Orders in compliance with the RFQ, each of which shall be signed by both the Town and Professional; provided, however, that Town has no obligation to provide Professional with any work hereunder and does not guarantee the issuance of any minimum number of Work Orders under this Agreement. Each Work Order shall be made a part of this Agreement as if fully set forth herein and be subject to the terms and conditions of this Agreement. This Agreement shall apply to all Work Orders (numbered consecutively in accordance with the practices of Town) entered during the term of this Agreement, with respect to the Services, unless the Parties expressly agree otherwise by a written modification to this Agreement, signed by an authorized representative of both Parties. Professional will provide Services to Town on an as-needed basis pursuant to and in the manner set forth in the scope of work and within the project schedule set forth in each individual Work Order issued in accordance with the terms and conditions of this Agreement, and be paid in the manner and amount (or not to exceed amount) provided in said Work Order, whether lump-sum, hourly or a combination thereof.

Exhibit B, attached hereto and incorporated herein by reference, shall include a list of Professional’s current fees and/or schedule of rates. Should any Work Order be executed and undertaken but not completed prior to the termination of this Agreement, then and in that event this Agreement shall continue as to incomplete projects until such time as the last of the projects undertaken is satisfactorily complete. The type of Services can be described generally as:

2. Exhibits. This Agreement consists of this document, all Approved Work Orders (defined in

Subsection 10 below), and the following exhibits, which are incorporated herein by reference: [Include only those exhibits applicable]

a. Exhibit A: Work Order Template

b. Exhibit B: Schedule of Rates and Charges

c. Exhibit C: Insurance Requirement

d. Exhibit D: Insurance Certificate

e. Exhibit E: RFQ Proposal

f. Exhibit F: Town RFQ and Addendum(s)

g. Exhibit G: Uniform Guidance Contract Clauses for Federal Funding (UGCCFF)

h. Exhibit H: Federal Transit Administration Specific Clauses (FTASC)

3. Services. Professional shall perform all Services in accordance with the terms and conditions of this Agreement and specifications set forth for the Services in the applicable Work Order.

The term “Services” shall include, but not be limited to all labor and/or materials provided by Professional, including without limitation any deliverables required.

4. Amendment. Any work requested by Town that was not included in the Work Order is not included in this Agreement and will be classified as an “Amendment to the Work Order”.

Amendments will be negotiated on an individual project basis and, if such negotiations are successful, will be governed by an amended or new Work Order between the Parties.

5. Access. In order to facilitate the performance of Professional’s Services, Town shall provide Professional and Professional’s employees, contractors, and agents (“Professional’s Personnel”) reasonable access to Town’s personnel, sites and other information required for the performance of the Services by Professional. Town shall provide Professional with any rules and regulations, including but not limited to safety regulations and security requirements. Professional shall be responsible for providing said rules and regulations to Professional’s Personnel. Professional and Professional’s Personnel shall comply with any such rules and regulations as are made known to them. If for any reasonable and lawful reason Town requests in writing that Professional discontinue the use of any particular member of Professional’s Personnel, then Professional shall immediately comply with such request. Such person shall leave Town’s premises promptly and Professional shall not furnish such person again to perform work on Town’s premises without Town’s consent.

Professional shall have opportunity to replace such individual if replacement is made within ten (10) business days of written notification.

ARTICLE II

RESPONSIBILITIES OF PROFESSIONAL

6. Representations and Warranties. Professional represents and warrants that now and continuing for the term of this Agreement, Professional:

a. is experienced, qualified, skilled and fully capable of performing the Services in a competent and professional manner;

b. shall exercise reasonable care and diligence, and shall act in the best interest of Town;

c. shall act in accordance with generally accepted standards, providing services in a professional and workmanlike manner in accordance with the professional skill and care ordinarily provided by competent members of the same profession practicing in the same or similar locality performing the same or similar services;

d. shall comply with this Agreement, applicable Work Orders, and with all applicable federal, state, and local laws, ordinances, codes, rules and regulations (collectively, “Laws and Regulations”);

e. is qualified to do business in North Carolina and will make all necessary filings and perform other actions required to remain in good standing with the North Carolina Secretary of State, and possesses all necessary qualifications, licenses, and certifications;

f. shall devote adequate resources to meet its obligations and perform in a timely manner in accordance with all Milestone Dates or other schedules required under this Agreement or an applicable Work Order, time being of the essence;

g. shall work in good faith with Town to meet requirements imposed by the federal or state government or other funding entity if grants are used to fund any portion of the Services;

h. shall provide to Town good and valid title to all Deliverables, free and clear of all encumbrances and liens of any kind, and which do not infringe any intellectual property right of any third party; and

i. the individual(s) signing this Agreement have the right and power to do so and bind Professional, its heirs, successors and assigns to the obligations set forth herein and such individual(s) do so personally warrant that they have such authority.

j. the Services and Deliverables will be in conformity in all material aspects with all requirements or specifications stated in this Agreement and the applicable Work Order(s) for a period of two (2) years from full completion of the Services.

7. Manner of Work and Standard of Care. The Professional will provide Services to the Town as set forth in and pursuant to individual Work Orders. Professional shall be responsible for the professional quality, technical accuracy, and the coordination of all Services and timely completion and delivery of all Services, including all related deliverables (the “Deliverables”) furnished by Professional under this Agreement and all Work Orders.

Professional shall also be responsible for the performance and payment of all subcontractors.

Professional shall maintain an adequate professional staff within North Carolina to render the Services to Town. Professional may use subcontractors to perform the Services only if such subcontractors and the services to be performed are identified in either this Agreement or a Work Order. Professional agrees that it shall not publish, copyright, or patent any of the Deliverables or other work product furnished to Town pursuant to this Agreement, it being understood that all Deliverables or other work product is the exclusive property of the Town.

Professional shall not supervise, direct, control or have authority over any construction work on the Project, nor be responsible for the means, methods, techniques, sequences or procedures of construction selected or used to construct the Project. Professional’s basis for opinions, cost estimates or other matters not readily ascertainable or certain shall be based on Professional’s experience, qualifications, and general familiarity with the industry; provided, however, that reasonable inquiries from reliable industry sources in the locale and time of the provision of Services should be made in formulating any opinions or estimates.

8. Work Orders. Each Work Order will describe the Services the Professional must provide, the time limit within which the Professional must complete the Services, and the compensation for said Services. The manner in which the Services are to be performed and the specific hours to be worked by Professional’s Personnel shall be determined by the Professional unless otherwise specified on the Work Order. Notwithstanding anything in the foregoing to the contrary, all hours worked will be in accordance with generally accepted practices within the Professional’s industry. It is understood and agreed that Professional and Professional’s Personnel are independent contractors and shall in no sense be considered employees or agents of Town, nor will they be entitled to participate in any benefits or privileges given or extended by Town to its employees. Professional and Professional’s Personnel shall have no power or right to enter into contracts or commitments on behalf of Town. Work Orders shall be in substantially the same form as specified in Exhibit A. Subject to the terms and conditions of the RFQ and this Agreement, the Professional and the Town will negotiate the specific requirements of each Work Order. Professional shall prepare the written Work Order in collaboration with Town, which at a minimum, shall include the following:

a. The scope of work;

b. The location of the work;

c. The name and assignment of each of Professional’s employees who will be principally responsible for performing the Services;

d. The names of any subconsultants or subcontractors the Professional will use and the portion of work they will perform;

e. A time schedule and cost for provision of the Services; and

f. Any other information requested by the Town.

9. Appointment of Representative. Prior to the provision of the Services under each Work Order, Professional shall, by written notice to the Town, designate a representative to act on behalf of the Professional with respect to such Work Order and the Services to be performed thereunder (the “Designated Representative”). The Designated Representative’s decisions, agreements and actions relating to the applicable Work Order and the Services to be provided thereunder shall be binding upon Professional. If the Town requests that Professional designate a different Designated Representative, Professional will do so within five (5) calendar days of Professional’s receipt of written notice form the Town regarding such request. If Professional decides to change the Designated Representative, Professional shall give written notice to the Town of its new Designated Representative and the effective date of such change.

10. Approved Work Order. Town shall not compensate Professional for any Services until the Town has executed the Work Order for said Services (“Approved Work Order”). Town shall have no obligation to issue any Approved Work Orders under this Agreement.

11. Incorporation of Terms and Conditions. Each Approved Work Order incorporates the terms and conditions of this Master Agreement and becomes a part hereof. An Approved Work Order must be consistent with, and cannot alter, the terms and conditions of this Agreement.

The terms and conditions of this Master Agreement shall control over the terms and conditions contained in an exhibit, attachment or Approved Work Order – even if the Approved Work Order expressly states that it is intended to control. Any conflicting terms and conditions in an Approved Work Order are invalid and unenforceable.

12. Reporting/Coordination/Certifications. Professional shall provide progress reports in a format acceptable to the Town at intervals established in the Work Order. At any time, upon request, Town shall be entitled to information regarding the status of the project or work.

Professional is responsible for coordinating its work with the Town in such a manner so as to meet scheduled deadlines. Professional shall ensure that all Services and/or Deliverables are in accordance with all Laws and Regulations and that all necessary or appropriate applications for approvals are submitted to federal, state and local governments or agencies in a timely manner so as not to cause delay. All final plans, documents, reports, studies and other data or materials prepared by Professional will bear the endorsement of a person employed by Professional or its approved subcontractors who shall be duly registered in the appropriate professional category for the work performed.

13. Meetings. Professional shall meet with Town representatives at mutually agreed upon times upon the Town’s request. Such meetings shall be held at locations designated by the Town.

14. Acceptance or Rejection of Services. Where hourly billing applies, Professional or Professional’s Personnel shall provide to Town detailed summaries of the tasks performed by

Professional or Professional’s Personnel, the hours billed to Town and the tasks completed in connection with Professional’s or Professional’s Personnel’s rendering of the Services. Town shall promptly notify Professional of any instance in which Services rendered by Professional or Professional’s Personnel are unsatisfactory in Town’s reasonable estimation. Upon receipt and review of any such notice from Town, Professional and Town shall negotiate in good faith to complete the Services in a manner satisfactory to Town. If the unsatisfactory Services have not been corrected within thirty (30) business days after Town’s notice to Professional, Town may, in addition to any other rights and remedies provided by law or this Agreement, terminate this Agreement upon written notice to Professional.

ARTICLE III

TOWN’S RESPONSIBILITIES

15. Town Information. Town shall provide existing data, plans, reports, and other information in possession of or under the control of the Town, which are necessary for Professional’s performance of the Services and shall assist Professional in obtaining other necessary information from Town’s files

16. Notice of Inadequate Performance. Town shall give prompt written notice to the Professional if the Town observes or otherwise becomes aware of any fault or defect in Professional’s conformance to this Agreement. Failure to give such notice shall not constitute a waiver of the Town’s right to require compliance with this Agreement or Work Order(s).

ARTICLE IV

TERM

17. Duration. The term of this Agreement shall become effective upon the execution by both Parties (the “Effective Date”) and shall have term of three (3) years unless sooner terminated as provided herein. Work Orders associated with this Agreement may also be executed for a period of three (3) years from the Effective Date. Any Work Order executed within three (3) years of the execution of this Agreement shall be binding for the time period set forth therein, and this Agreement and such Work Order, and amendments thereto shall be binding for the time period set forth in the Work Order. Any Work Order executed within the initial term may be amended for additional scope, fee or time after the initial term has expired.

18. Notice to Proceed. Services shall commence upon execution of a Work Order describing the specific project and Services to be performed. The Director or his/her designee shall issue a written Notice to Proceed following execution of such Work Order(s). Professional shall not commence Services until such notice is received. A Notice to Proceed shall not be issued until any Certificates of Insurance relating to the Services to be performed are provided by Professional to Town in the amounts required by Town.

ARTICLE V

COMPENSATION AND STAFFING

19. General Provisions/Hourly Rate Schedule. The terms of payment for Services provided by

Professional shall be set forth in each Work Order. Such Work Order may provide for compensation in accordance with an hourly rate schedule, a set fee for services paid either in a single lump sum or in periodic payments, or a combination of these methods. Unless otherwise specified in the Work Order, Professional shall obtain, and provide, without additional cost to the Town, all labor, materials, equipment, transportation, facilities, services, permits and licenses necessary to perform Services under this Agreement. In addition to hourly rates or the set fee payment set forth in the Work Order, Town shall pay Professional for expenses and costs only when reimbursement for such items is specifically provided for in the Work Order. Exhibit B sets forth a schedule of the Professional’s rates and charges (“Schedule of Rates and Charges”) that applies to any services provided in an Approved Work Order on a time and materials basis. The Schedule of Rates and Charges is subject to the following requirements:

a. No Increases – Professional will not increase the Schedule of Rates and Charges during the first year of this Agreement, and only once annually thereafter.

Professional shall give written notice to Town of any increase to the Schedule of Rates and Charges at least sixty (60) days prior to their taking effect and Exhibit B shall be updated to reflect said changes. Upon receiving notice of any increase, Town may terminate the Agreement without further liability prior to the effective date of said increase at its sole discretion.

b. Conflict – In the event of a discrepancy between this section and the Schedule of Rates and Charges, this section governs.

20. Invoices. Professional shall render invoices for Services performed for Town in accordance with the charges, schedule, and other terms and conditions specified in the applicable Work Order. Each invoice shall include a purchase order number where applicable and identify the total hours and period for billing, the amount of reimbursable expenses, if any, and applicable taxes, if any. Each invoice must include sufficient information and supporting documents to establish to Town’s satisfaction that the Professional is entitled to the payment requested and for a proper pre-audit and post-audit thereof in accordance with Town standards.

21. Payments. Town shall remit payment for the undisputed portion of each invoice within twenty (20) days of invoice date provided that Professional has responded and clarified any questions directed to the Professional by the Town with respect to the invoice. If Professional fails to timely complete the performance of all Services in accordance with the timeframe set forth in the applicable Work Order, Town shall have the right to cease making any partial progress payments following expiration of such timeframe. No further payments under said Work Order will be made until a time extension is granted by the Town or all Services have been completed and accepted by the Town in writing. The rates set forth in the applicable Work Order are not subject to increase by Professional during the term of the Work Order.

Town shall only be liable for charges expressly authorized in a Work Order or this Agreement, including any reimbursable expenses. Reimbursable expenses are subject to prior review and approval of Town. Any reimbursement approved by Town in a Work Order for items such as travel, lodging and meal costs shall be governed by Town guidelines and restrictions regarding reimbursable costs for Town employees and must be supported by receipts furnished to Town evidencing the same where required.

22. Disputed Items. In the event Town reasonably disputes any amount on an invoice, the Town will notify the Professional in writing and the Parties will negotiate in good faith to resolve the dispute as soon as practicable. Payment under any disputed invoice shall be due and payable immediately upon resolution of the dispute.

23. Professional’s Staffing. Attachment 2 of each Approved Work Order shall identify the following:

a. The Professional’s contract manager and

b. The Professional(s) and/or employee(s) of Professional principally responsible for providing the Services.

The Professional’s contract manager must be authorized to act on behalf of the Professional for purposes of decisions regarding the Approved Work Order. Town’s prior written approval is required for the Professional to remove, replace, or add to any of its staffing identified in Attachment 2 of an Approved Work Order.

24. Use of Key Personnel and Subcontractors. Attachment 2 of each Approved Work Order will list the key project personnel of the Professional (“Key Personnel”) and state whether or not the Professional can use subcontractors to provide any part of the Services. If Attachment 2 does not authorize the Professional to use subcontractors, then prior written approval by the Town is required for the Professional to use a subcontractor to perform any part of the Services. If use of one or more subcontractors is authorized, then the name of each subcontractor and the portion of the Service each will perform must be identified on Attachment 2, along with any Key Personnel of the subcontractor. Town’s prior written approval is required to remove, replace or add to the Key Personnel or the subcontractor(s) identified in Attachment 2. Any replacement personnel and/or subcontractors shall have the same or higher qualifications and experience as those being substituted. The Professional warrants all services and deliverables provided by the subcontractor it uses, and represents that each subcontractor is specially trained, experienced, and competent to perform its portion of the Services. Professional further assumes responsibility for all aspects of its subcontractors’ conduct and performance. Additionally, Professional’s contract with subcontractor(s) shall include a provision that, in the event this Agreement or a Work Order is terminated for cause by Town, Town may take assignment of such contract of Professional with their subcontractor. No automatic term or Milestone Date extension will be granted for replacement of Key Personnel or subcontractors.

25. Taxes, Permits and Licenses. Professional represents that it will only perform Services for which it possesses the necessary training, licenses, and permits. Professional represents that its performance of all such Services will conform to the standards of practice of a professional that specializes in performing professional services of a like nature and complexity. Unless otherwise provided, Professional is responsible for all applicable taxes and license fees and shall acquire all licenses and permits required by Laws and Regulations.

26. Reimbursable Expenses. Any reimbursement to the Professional is limited to the expenses set forth below. Town will reimburse these expenses at actual cost only unless a markup is specified.

a. Costs related to mailing, shipping, and/or delivery of documents or materials;

b. Costs related to photography, printing, reproduction, and/or copying any documents or materials;

c. Rental of any specialized equipment to the extent the Town has preapproved, in writing, the cost of such rental (up to 10% markup);

d. Only with prior written approval of Town, mileage and other travel related expenses to the same extent that the Town reimburses its employees pursuant to Town Policy.

Professional acknowledges that it has received a copy of the Town Policy regarding employee travel and is familiar with these policies; and

e. Any expenses expressly identified as being reimbursable in the Schedule of Rates and Charges or in an Approved Work Order (up to 10% markup).

27. Contingent Funding/Non-Appropriations. Notwithstanding anything to the contrary herein, all financial obligations of the Town under this Agreement or any Work Order are dependent upon, and subject to, the continuing allocation of funds by the Town Board of Commissioners for such purpose. The Agreement shall automatically terminate if such funds cease to be allocated or available for any reason.

28. Pre-audit and Purchasing Policy Notices. Per North Carolina General Statute §159-28, no contract with a local government, including Town, requiring the payment of public funds is valid unless properly pre-audited in the manner required by said statute. Any Work Order associated herewith must contain a Pre-audit Certificate signed by the Town Chief Financial Officer or the Deputy Finance Officer which shall take substantially the following form:

“This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act.” Failure to obtain a pre-audit upon the Agreement makes the contract invalid and unenforceable per state law. Additionally, pursuant to Town purchasing policies, other than purchases made on a purchase card, no obligation for any goods sold or service rendered to Town is validly enforceable without a valid signed contract, or a signed

Purchase Order for such goods or services. Contact the Town Finance Office at 704-799- 4048 with any questions or for further information related to this provision.

ARTICLE IV

DOCUMENTATION AND WORK PRODUCT

29. Required Forms. Professional must provide Town with a properly completed Internal Revenue Service Form W-9 before the Town will process payment. The Professional must also provide the Town with a Certificate of Insurance as is acceptable to the Town’s Risk Manager, a properly completed signatory authority form and any other form or document reasonably requested by Town.

30. Insurance. Professional shall comply with the insurance requirements set forth in Exhibit C for the term of this Agreement. Before performing any Services, Professional must submit to Town’s designated risk manager (“Risk Manager”) for written approval all documents demonstrating compliance with the requirements of Exhibit C. The Risk Manager may amend, add, or waive, in writing, any of the requirements contained in Exhibit C.

31. Ownership of Work Product. Town shall own all rights in and to any of the following types of work product (including electronic equivalents) without restriction or limitation upon their use immediately when and as created by the Professional or any other person engaged directly or indirectly by Professional to perform Professional’s services pursuant to an Approved Work Order: reports, drawings, plans, specifications, data, software, models, documents or other materials developed or discovered (collectively “Work Product”). To the extent permitted by Title 17 of the Unites States Code, the Work Product is deemed a work for hire and all copyrights in such Work Product are the property of Town. In the event it is ever determined that any Work Product is not a work for hire under United States law, Professional hereby assigns to the Town, without reservation, all copyrights to such works when and as created. Said assignment shall include copyrights in all Service-related documents, including sketches, models, photographs, data sets, source code and scripts, and other Services-related expressions created by the Professional. Among those documents are certain “Work Product,” including Service-related deliverables, programs, applications, reports, design drawings, and construction documents. The Town’s obligation to pay the Professional is expressly conditioned upon the Professional’s obtaining a valid written comprehensive assignment of copyrights from its sub-consultant in terms identical to those that obligate the Professional to the Town as expressed in this subsection, which copyright the Professional, in turn, hereby assigns to the Town. Town, in return, hereby grants the Professional and its subcontractors a revocable, nonexclusive license to reproduce the documents for purposes relating directly to the Professional’s performance of its obligations under this Agreement for the Professional’s archival records, and for the Professional’s reproduction of drawings and photographs in the Professional’s marketing materials. This nonexclusive license shall terminate automatically upon the occurrence of either a breach of this Agreement by the Professional or the accused commission by the Professional of a tort or a crime affecting the Town or the Services or upon termination of this Agreement. This nonexclusive license is granted to the Professional alone and shall not be assigned by the Professional to any other person or entity, except that the non-exclusive license granted in this Agreement to the Professional for purposes of the Professional’s performance hereunder may be sub-licensed to the Professional’s subcontractors (with the same limitations). Subject to the foregoing, this nonexclusive license shall terminate automatically upon Professional’s assignment of this nonexclusive license to another or the attempt to do so. With Town’s prior written consent, Professional may retain and use copies of the Work Product for reference and as documentation of experience and capabilities.

32. Derivative Works or Misuse of Work Product. If Town subsequently reproduces Service-related documents or creates a derivative work based upon Service-related documents created by the Professional, Town shall (where permitted or required by law) remove or completely obliterate the original professional’s seals, logos and other indications on the documents of the identity of the Professional and its sub-contractors. To the extent that liability arises from misuse of the Work Product by the Town or another professional, the Professional shall not be responsible for that misuse. If Town uses the Work Products for purposes including additions to and modifications of the Services, and for other projects, the Town shall indemnify the Professional for losses, including reasonable attorneys’ fees, suffered by the Professional as a result of the use of the design and these documents for such other purposes.

If these documents are used for other purposes, the Town shall see that they are modified (i) to indicate that Professional did not prepare them for such other purposes and is not responsible for their use in connection with such other purposes and (ii) to delete the Professional’s name and seal from the document, where permitted or required by law.

33. Disclosures. Town takes efforts to assure that accurate information about the Town is disseminated such that neither the public trust nor the public’s perception of Town impartiality is compromised. Professional, mindful of those efforts, agrees that it shall not publicly disseminate any information concerning this Agreement or the Services or otherwise disclose or permit to be disclosed any of the data or other information obtained or furnished in compliance with this Agreement, or any particulars thereof without first securing Town’s consent in writing. Any approval by Town may be given with certain stipulations, such as Town’s participation in the creation of the public product or Town’s review and the option to refuse ultimate release of the final product should it fail to meet the Town’s standards and goals. Publicly disseminates means but is not limited to electronic, video, audio, photographic, or hard copy materials serving as, in whole or part, advertising, sales promotion, professional, papers or presentations, statements, news releases, articles, or other media products, including social media, and/or Professional’s business collateral pieces.

Notwithstanding the foregoing, the Parties agree that Professional may list Town as a reference in response to requests for proposals. During the term of this Agreement, Professional may have access to and become familiar with various sensitive information belonging to Town. Professional acknowledges and agrees all such information is and shall remain the property of Town, and further agrees it shall not use in any way or disclose any of said information, directly or indirectly, either during the term of this Agreement or at any time thereafter, except as required in the course of its performance under this Agreement or to the extent such information is publicly known. All files, records, documents, information, data and similar items relating to the business of Town, whether prepared by Professional or otherwise coming into their possession, shall remain the exclusive property of Town and shall not be removed from the premises of the Town under any circumstances without the prior written permission of Town (except in the ordinary course of business during the term of this Agreement), and in any event shall be promptly delivered to Town (without Professional retaining any copies) upon termination or expiration of this Agreement. In addition to the foregoing and except as authorized by Town in writing or as otherwise required by law, Professional shall not disclose any of the following to a third party: (a) Work Product, (b) discussions between the Town and Professional, or (c) information prepared, developed or received by the Professional or any of its subcontractors in the course of providing the Services. This prohibition as to disclosure does not apply to disclosures by and between the Professional, Professional’s Personnel and subcontractors that are needed to perform the Services. Should Professional receive a request from any third party for any Work Product, discussions or other information regarding Town that Professional is prohibited from disclosing, Professional shall immediately notify the Town. This provision shall survive the expiration or earlier termination of this Agreement.

34. Public Records and Confidentiality of Professional’s Information. Professional acknowledges that records made or received in connection with the transaction of public business are public records and subject to public records requests. Town is required to comply with certain applicable statutes of the State of North Carolina regarding open meetings and/or open records. Notwithstanding anything to the contrary herein, Town shall not be liable to any party for disclosing the Agreement or any documents or communications made or received in relation thereto to any third party or the public at large so long as such disclosure is made by Town in a good faith effort (within its sole discretion) to comply with any public records request or other applicable law. Town may provide copies of records, including copyrighted records, in response to public record requests, except that, upon request of and indemnification by Professional, the Town will not disclose records that meet all of the requirements of a trade secret as set forth in N.C.G.S. §66-152 that are specifically designated as at “trade secret” or “confidential” at the time of initial disclosure by Professional, and that are otherwise entitled to protection under N.C.G.S. §132-1.2(1). .

35. Advertising. The Agreement and/or relations among the Parties shall not be used for any advertising purposes, including referrals or testimonials, by either Party without the express written consent of the other Party.

36. Audit/Inspection of Records. Professional shall retain for a minimum of three (3) years from the date of the Town’s final payment to Professional under this Agreement (or for any longer period as required by law) all ledgers, books of accounts, invoices, vouchers, canceled checks, other records relating to charges for the performance of Services, Professional’s expenditures and disbursements charged to Town, and all Work Product evidencing Professional’s performance hereunder (collectively, the “Records”). At any time during the term of this Agreement or during the time period required for the retention of records as noted above, the Town Manager, the Town Attorney, the Town’s Finance Director, or any designated representative of any of the foregoing officers may request, in writing, production of all or a portion of the Records. Professional shall produce the requested Records at Town Hall during normal business hours, or at any other location and time mutually agreed upon by the Parties. Professional shall produce the requested Records at no cost to the Town.

ARTICLE V

TERMINATION

37. Termination for Convenience. Town may terminate this Agreement and/or any specific

Approved Work Order(s) associated with this Agreement for its convenience upon ten (10) days written notice to the other setting forth the effective date of the termination and specifying the Services to be completed by the effective date of termination, if applicable.

Upon receipt of any termination notice from Town, Professional shall endeavor in good faith not to incur additional expenses unless Town’s written notice of termination states otherwise Town shall pay Professional for any Services rendered but not previously billed up to the effective date of termination. Town shall pay the lesser of either Professional’s substantiated labor and costs, or the percentage of the contract price corresponding to the percentage of the total work that has been completed under the Work Order.

38. Termination for Cause. If either Party is in default of its obligations under this Agreement and/or any Work Order(s) and the defaulting Party has not within ten (10) days of receiving written notice of its default taken all reasonable actions to begin remedy of the breach, the non-defaulting Party may terminate after said ten (10) days. If the default continues for thirty

(30) days after written notice by the non-defaulting Party, the non-defaulting Party may, in addition to all other rights and remedies provided by law or this Agreement, terminate this Agreement and/or any Work Order that may be affected by the default. If the default reasonably requires more than thirty (30) days to correct and the defaulting Party has begun substantial corrective action to correct the default within such thirty (30) day period, then the non-defaulting Party may, within its discretion, extend the effective date of termination to allow the defaulting Party to complete its remedy and such extension shall not be treated as a waiver.

39. Delivery of Work/Return of Property. If Town terminates this Agreement and/or any

Approved Work Order(s), whether for convenience or cause, Town has the option of requiring the Professional to provide the Town any finished or unfinished Work Product prepared by the Professional up to the date of Professional’s receipt of the written notice of termination. Upon the expiration or termination of this Agreement or any Work Order, Professional and Professional’s Personnel shall promptly return to Town all papers, written materials, data, drawings, specifications, reports, estimates, summaries, equipment, and other information furnished to Professional or Professional’s Personnel by Town or gathered or created or developed by Professional or Professional’s Personnel, in whole or in part, in connection with or as a result of the performance of the Services under this Agreement or a Work Order. Professional shall only be responsible for the accuracy and reliability of fully completed work delivered in accordance with early termination. Upon termination, Town may complete the Services in any way that Town, in its sole discretion, determines is appropriate, including but not limited to using Town personnel or contracting with third Parties. Completion of such work shall not waive any of Town’s rights or remedies.

ARTICLE VI

CRITERIA FOR INACTIVE STATUS OR REMOVAL FROM ON-CALL LIST

40. Criteria for Removal from Active Status. The criteria outlined below shall be used in moving

Professional to inactive status or for removing Professional from the “On-Call” List.

a. Professional may be placed on inactive status from the On-Call List for any of the following reasons as determined in the sole discretion of the Town:

i. If Professional loses technical expertise, as determined by Town, in the form of individuals, expertise or certification affecting the Professional’s overall qualifications to perform the described project work for which the Professional was originally qualified by the Town, and does not replace that expertise within two (2) months. Replacement of technical expertise will require written Town approval to allow the firm to be reinstated on the “On- Call’ List.

ii. If Professional declines a specific project assignment two (2) consecutive times. A written request from the inactive firm, providing appropriate justification will be required to seek reinstatement on the On-Call List.

Written Town approval will be required to allow the firm to be reinstated to the On-Call List.

b. Professional may be removed from the On-Call List for any of the following reasons as determined in the sole discretion of the Town:

i. Loss of technical expertise and not replaced it within three (3) months;

ii. Declining work such that Professional has been placed on inactive status two

(2) times for declining specific project assignments;

iii. A project manager is nonresponsive and/or inaccessible for more than seven

(7) working days, and other representatives of the Professional with authority to act are also nonresponsive;

iv. Professional exhibits poor quality control;

v. Professional produces poor work product and/or Deliverables;

vi. Professional misses milestones and/or delivers late work product due to no fault of the Town.

ARTICLE VII

MISCELLANEOUS PROVISIONS

41. Indemnification. Except to the extent that such duty to defend is deemed to be void and unenforceable under N.C.G.S.§22B-1(c), Professional shall defend, indemnify, and hold harmless Town and its officers, employees and agents against any and all claims, losses, damages, injuries, expenses, or liabilities, including without limitation interest, penalties, attorneys’ fees, accountants’ fees, that directly or indirectly, in whole or in part, arise out of, pertain to, or relate to any of the following:

a. Any misrepresentation, breach of warranty, or negligence on the part of Professional or Professional’s Personnel under this Agreement in the performance of all or any part of the Services; or

b. Any negligent act or omission, recklessness or willful misconduct of the Professional, any of its subcontractors, anyone directly or indirectly employed by either the Professional or any of its subcontractors, or anyone that they control; or

c. Any infringement of the patent rights, copyright, trade secret, trade name, trademark, service mark or any other proprietary right of any person(s) caused by the Town’s use of any Services, Deliverables or other items provided by Professional pursuant to an Approved Work Order; or

d. Any breach of this Master Agreement, including without limitation any delay or failure to perform as required.

Professional’s obligations under this section apply to the maximum extent allowed by law and includes defending the Town, its officers, employes, and agents. These obligations do not apply to the extent that any claim, loss, damage, injury, expense, or liability results from the sole negligence or willful misconduct of the Town, its officers, employees, or agents.

The obligations under this section shall survive the expiration or earlier termination of this Master Agreement. Furthermore, the Town’s acceptance of any insurance does not relieve the Professional from its obligations hereunder, whether or not the insurance required covers any damages or claims for damages.

42. Waiver of Consequential/Punitive Damages. Under no circumstances whatsoever, shall any Party be entitled to recover, and all Parties hereby waive their right to seek, any indirect, punitive, special or consequential damages of any kind whatsoever, incurred in connection with any breach of the Agreement. Notwithstanding the foregoing, the reasonable costs incurred in connection with successfully enforcing the Agreement against another Party, including court costs, fees, and reasonable attorneys’ fees associated therewith shall be recoverable by such a prevailing party.

43. Dispute Resolution. Professional and Town agree to negotiate all disputes between them in good faith for a period of 30 days from the date of notice prior to exercising their other rights hereunder. If negotiations are unsuccessful in resolving the dispute, then the dispute will be mediated in Iredell County by a mutually agreed upon mediator certified for superior court mediations by the North Carolina Dispute Resolution Commission. If mediation is unsuccessful, then the parties may exercise their rights at law in any state court located in Iredell County, North Carolina in accordance with this Agreement.

44. Equitable Relief. Each Party acknowledges that a breach may cause the non-breaching Party irreparable harm, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching Party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance, and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching Party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive, but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.

45. Discrepancies. Except as otherwise stated in this Agreement, the provisions of this

Agreement shall take precedence in resolving any conflict, error, ambiguity or discrepancy between the provisions of the Agreement, its attachments, exhibits, and any Work Order hereunder and the provisions of any standard, specification, manual, code or instruction of any technical society, organization or association (collectively “Other Standards”); provided, however, that if any of the Other Standards impose a more stringent standard or obligation upon Professional than in the Agreement, its attachment, exhibits or Work Orders, the Other Standards shall take precedence in resolving any conflict, error, ambiguity or discrepancy between the provisions of this Agreement, its attachments, exhibits or Work Order and the Other Standards.

46. Survival. All representations, warranties and indemnities under this Agreement shall survive any termination of this Agreement or a Work Order, regardless of the reason for such termination.

47. Conflict of Interest. Professional represents that it is familiar with local and state conflict of interest laws and agrees to comply with those laws in performing this Agreement.

Professional certifies that, as of the Effective Date, it was unaware of any facts constituting a conflict of interest or creating an appearance of a conflict of interest. Professional shall avoid all conflicts of interest or appearances of conflicts of interest in performing this Agreement.

Professional has the obligation of immediately notifying the Town in writing if it becomes aware of any facts giving rise to a conflict of interest or the appearance of a conflict of interest. Professional’s violation of this provision is a material breach. Professional hereby warrants that it has, and shall at all times during the lifetime of this Agreement, complied with N.C.G.S. §§133-1, 133-2, 133-32 and 23 C.F.R. §1.33, as applicable.

48. Gifts Prohibited. Professional acknowledges that gifts to a Town officer or employee are prohibited. Professional represents and warrants that it has not and shall not offer any Town officer or employee any gift prohibited by law or Town policy. Professional shall become aware of and comply with laws related to gifts and favors, conflicts of interest and the like, including N.C.G.S. §14-234, N.C.G.S. §133-1, and N.C.G.S. §133-32. Violation of this provision is a material breach.

49. Nondiscrimination. Professional shall not discriminate against or grant preferential treatment to any person on the basis of race, sex, color, age, religion, sexual orientation, actual or perceived gender identity, disability, ethnicity or national origin.