HomeMy WebLinkAboutDecember 10, 2024 Regular MeetingAGENDA
Lillington Board of Commissioners
Regular Monthly Meeting
Lillington Town Hall
102 East Front Street
Lillington, North Carolina 27546
December 10, 2024 6:00pm
CALL TO ORDER MAYOR GLENN MCFADDEN
WELCOME MAYOR GLENN MCFADDEN
PLEDGE OF ALLEGIANCE MAYOR GLENN MCFADDEN
INVOCATION COMMISSIONER MARSHALL PAGE
CONSIDERATION OF AGENDA
PUBLIC COMMENT Public comment is an opportunity for citizens wishing to present unscheduled items of concern or
interest to the Commissioners. It is requested that citizens limit their presentations to three (3)
minutes.
CONSENT AGENDA
All items on the Consent Agenda are considered routine, to be enacted by one motion without discussion. If a Governing Body member or citizen requests discussion of an item, the item will be removed from the Consent Agenda and considered separately.
Item #1 Approval of Special Meeting Minutes from November 5th and 6th 2024
Item #2 Approval of Regular Session Meeting Minutes from November 12, 2024
Item #3 Approval of Resolution for the 2025 Meeting Schedule of the Lillington Board of
Commissioners
Item #4 Approval of Town of Lillington Technology Policy with NCGS 143-805 Policy Update – S.L. 2024-26
Item #5 Approval of Budget Amendment FY24-25 Budget Amendment #5
Item #6 Approval of Contract for Engineering Services with Consor North America, Inc. – on-call professional engineering services
Town of Lillington | 2
Item #7 Approval of Agreement for Engineer Services by and Between the Town of
Lillington and Weston & Sampson Engineers, Inc.
NON-AGENDA ITEMS
Non-Agenda items is an opportunity for the Commissioners, Attorney or Staff to present unscheduled
items that need consideration by the Board.
ADJOURNMENT
AGENDA ITEM SUMMARY
Date of Meeting: December 10, 2024
Staff Work By: Lindsey B. Lucas, Town Clerk
Lisa B. Young, Assistant Town Manager
Joseph Jeffries, Town Manager
Alicia Adams, Administrative Services Director
AGENDA ITEM
Consent Agenda Items
ITEM SUMMARY
All items on the Consent Agenda are considered routine, to be enacted by one motion without discussion.
If a Governing Body member or citizen requests discussion of an item, the item will be removed from the
Consent Agenda and considered separately:
Item #1 Approval of Special Meeting Minutes from November 5th and 6th 2024
Item #2 Approval of Regular Session Meeting Minutes from November 12, 2024
Item #3 Approval of Resolution for the 2025 Meeting Schedule of the Lillington Board of Commissioners
Item #4 Approval of Town of Lillington Technology Policy with NCGS 143-805 Policy
Update – S.L. 2024-26
Item #5 Approval of Budget Amendment FY24-25 Budget Amendment #5
Item #6 Approval of Contract for Engineering Services – on-call professional engineering
services
Item #7 Approval of Agreement for Engineer Services by and Between the Town of Lillington and Weston & Sampson Engineers, Inc.
RECOMMENDED ACTION Approve consent agenda items as recommended by staff.
AGENDA ITEMS #1-7
Lillington Board of Commissioners November 5th & 6th Special Board Meeting/Retreat Minutes
1
Special Board Meeting of the Town Board of the Town of Lillington, Tuesday, November 5, 2024
from 1:30 p.m. – 4:30 p.m. and Wednesday, November 6, 2024 from 8:30 a.m. – 11:30 a.m. at
Mount Airy City Hall, 300 South Main Street, Mount Airy, North Carolina for the purpose of
conducting a Town Board Planning Retreat.
Board Members Present: Mayor Glenn McFadden Mayor Pro Tempore Neil McPhail Commissioner Marshall Page Commissioner Rupert Langdon Commissioner Danny Babb Commissioner Patricia Moss
Facilitator: Chad Sary, ACIP, Associate Vice President, Stewart, Inc. Staff Present: Joseph Jeffries, Town Manager
Lisa Young, Assistant Town Manager
Lindsey B. Lucas, Town Clerk
Landon Chandler, Planning Director
November 5, 2024-Day One
CALL TO ORDER: Mayor McFadden opened the special meeting/planning retreat and called the meeting
to order and welcomed those in attendance.
Mayor McFadden recognized Joseph Jeffries, Town Manager.
Mr. Jeffries went over the USA Boundary and Agreement in detail with the Board. Discussions were continued regarding the language of the agreement.
Mayor McFadden recognized Landon Chandler. Mr. Chandler went over the Greenfield
Communities Tour with the Board. Mr. Chandler stated the tour started at Nexton where there were 13,000 units. The developer wanted them to see the roads, gutter, and stormwater, open space and amenities. Next was a tour of Summer’s Corner where there were 7,000+ homes. The development most like Capeton will be modeled after was Pointe Hope, the developer discussed
the architectural standards of the community and how they would also apply to the Capeton
design manual. NOVEMBER 6, 2024-DAY TWO:
Mayor Glenn McFadden recognized Chad Sary, KCI Associates of NC. Mr. Sary reviewed the following with the Board.
VISIONING EXERCISE Board members were asked, “What will Lillington be in 10 years?”. The following word cloud
represents the feedback received at the retreat:
Lillington Board of Commissioners November 5th & 6th Special Board Meeting/Retreat Minutes
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OPPORTUNITIES & ISSUES EXERCISE
Opportunities and issues exercises were conducted in the following categories:
1. Development & Growth
2. Natural Environment/Parks & Recreation
3. Economic Development/Downtown
4. Infrastructure & Transportation
While ALL of these topics are important, the commission members had the opportunity to vote
on which projects were considered to be their priorities.
The voting occurred through the “dot democracy” method, with each member getting 16 dots.
The instructions were to provide two dots on each category in the opportunities and issues
area.
The charts below illustrate these priorities.
Development & Growth
Opportunities (votes) Issues (votes)
1. Downtown Vibrancy (4) 1. Traffic Congestion (6)
1. CAMPO Funding for Transportation
Projects (2) • Impacts on schools (1)
• Better employment choices (2) • Strain on current resources (1)
• Better opportunities with growth (2) • Facilities and staff to support growth
(1)
• Becoming a regional commercial
destination (2)
• Retaining staff and attracting talent (1)
• Redevelopment of Byrd Tract (1) • Non-compatible land uses in
the county
• Improvement of schools (1) • Overall funding of projects
• Jet port expansion (1) • Support for larger industry
• Better medical and health care • Political pressures
Natural Resources & Parks
Opportunities (votes) Issues (votes)
• Use of old school building for arts (3) • Adequate staff to support parks &
recreation needs (6)
• New parks north of river (2) • Lack of park spaces (5)
• Utilization of river (trails, parks, open
space) (2)
• Protection of open space in
the southern portion of town (1)
Lillington Board of Commissioners November 5th & 6th Special Board Meeting/Retreat Minutes
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• Parks in the southern part of town (2) • Out-of-date parks and recreation plan
• Train depot/event center/connection
with park (1)
• Plan to accept open space when
offered as part of development.
• Utilize USA to identify future parks (1)
• Connections to Raven Rock Park and
Campbell University
• Interconnection with neighborhood
parks and opportunities to open space
with new subdivisions
Economic Development & Downtown
Opportunities (votes) Issues (votes)
• Redevelopment of buildings on front
street (5)
• Completion of bypass (6)
• Be part of the NC Main Street
Program (3)
• Lack of trees and lighting downtown
(3)
• Special tax district for downtown
improvements (2)
• Stormwater in downtown (2)
• Continued work with Harnett Co.
Economic Development Commission
(1)
• Non-responsive property owners in
downtown (1)
• More connection opportunities with
river and downtown area (1)
• Poor condition of buildings downtown
• Create incentives for downtown
development.
• View of entrances into downtown
• Infill surrounding downtown • Lots of competition for larger industry
• Improvement of gateways
Infrastructure & Transportation
Opportunities (votes) Issues (votes)
• Pedestrian improvements in
the downtown area (5)
• Bypass funded and built (5)
• Use of CAMPO assistance (4) • Lack of pedestrian friendliness (5)
• More involvement with state
representatives for funding (2)
• Stormwater problems (2)
• Underground utilities (1) • Cost for underground utilities
• Better marketing of traffic throughout
town
Lillington Board of Commissioners November 5th & 6th Special Board Meeting/Retreat Minutes
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• Pedestrian crossing improvements
over the river
• Town of get out of utility business
• Implementation of transportation plan
6 KEEP, TOSS, CREATE EXERCISE
Each commissioner was provided a map of Lillington and asked to provide 1-2 ideas on
things in town to continue (Keep), change or stop (Toss) or something new (Create). The
following provided the ideas shared during this exercise:
Keep:
• Downtown
• Greenway efforts
• Parks
• Staff Retention
Toss:
• Trail connection to Raven Rock Park
• Traffic in downtown
• Thrift & Vape Shops
Create:
• Art/Civic Center at old school
• Underground utilities
• Trail connection to Raven Rock Park
• Community gathering areas in downtown
• River park / greenway
• Downtown bypass
• More open space and parks
• Expanded public safety
• Historic preservation program
• CAMPO involvement
• Alternatives to NCDOT funding for transportation projects
• Urban Services Area
Adjournment: The Special Board Meeting/2024 Planning Retreat was adjourned, November 6,
2024.
Attest:
_______________________________ ____________________________
Lillington Board of Commissioners November 5th & 6th Special Board Meeting/Retreat Minutes
5
Lindsey B. Lucas, Town Clerk Glenn McFadden, Mayor
Lillington Board of Commissioners November 12, 2024
Regular Board Meeting of the Town Board of the Town of Lillington, Tuesday, November
12, 2024 at 6:00 p.m. at the Lillington Town Hall (102 E. Front Street), Lillington, North
Carolina.
Board Members Present: Mayor Glenn McFadden
Mayor Pro Tempore Neil McPhail
Commissioner Marshall Page
Commissioner Rupert Langdon
Commissioner Danny Babb
Commissioner Patricia Moss
Staff Present: Joseph Jeffries, Town Manager
Lisa Young, Assistant Town Manager
Lindsey B. Lucas, Town Clerk
Alicia Adams, Administrative Services Director
Frank Powers, Police Chief
William Baker, Parks & Recreation Director
Brandon Harris, Assistant Parks and Recreation Director
Shane Cummings, Town Engineer
Tony Buzzard, Town Attorney
Call to Order & Welcome: Mayor Glenn McFadden called the meeting to order and welcomed
those in attendance at 6:00 p.m.
Invocation: Commissioner Page held the invocation.
Agenda Consideration: Mayor Glenn McFadden presented the agenda for the consideration by
the Town Board. Commissioner Page moved to approve the agenda as presented. The motion
was seconded by Commissioner Moss and approved unanimously. (Minute Book Notation:
Agenda is on file at Lillington Town Hall).
Public Comment: Mayor Glenn McFadden inquired as to whether anyone wished to address the
Town Board.
No one was signed up.
Consent Agenda: Commissioner Langdon moved that the consent agenda items be approved as
amended to the Board. The motion was seconded by Commissioner McPhail and the following
consent agenda items were approved unanimously.
Lillington Board of Commissioners November 12, 2024
Item #1
Work Session Minutes from October 14, 2024
Approved
Item #2
Closed Session Minutes from October 14, 2024
Approved
Item #3
Regular Meeting Minutes from October 15, 2024
Approved
Item #4
Approval of FY24-25 Budget Amendment #4
Approved
PUBLIC HEARING
Item #5 Consideration of a Development Agreement between the Town of Lillington and OM Developers, LLC. Mayor McFadden opened the Public Hearing at 6:02 p.m. Mayor McFadden recognized Shane Cummings, Town Engineer. Mr. Cummings reviewed the
proposed Development Agreement with the Board explaining there are obligations from the developer to completely build and construct the development and meet standards. During that time allow them to construct and build following plat approvals. This would also allow a pump and haul concurrence. The developer will reimburse the Town for all costs for pump and haul permits and pump and haul services.
Rob Bailey-1611 Jones Franklin Rd, Raleigh – Mr. Bailey stated he appreciated the Town’s consideration. As there were no other speakers, the Public Hearing was closed at 6:05 p.m.
Item #5A Consideration of Approval of Development Agreement between the Town of Lillington and OM Developers, LLC. Commissioner Langdon made a motion to approve the Development Agreement between the Town of Lillington and OM Developers, LLC upon approval from Town Attorney, Tony
Buzzard. Commissioner Page seconded the motion that passed unanimously. Item #6 Public Hearing on the Consideration of Temporary Street Closure of Town and NCDOT Streets for the Town of Lillington Christmas Parade and Gathering December 14, 2024
Mayor McFadden opened the Public Hearing at 6:06 p.m.
Lillington Board of Commissioners November 12, 2024
Mayor McFadden recognized Lindsey Lucas, Town Clerk. Ms. Lucas stated the Town of Lillington’s Parks and Recreation Department is requesting the following temporary road
closures:
• Front Street • Main Street • 8th, 9th, and 10th Streets
• W. James and W. Ivey Streets
The Town of Lillington’s Christmas Parade and Gathering is Saturday, December 14, 2024 at 7 p.m., the street closure request is from 5:30 p.m. to 8:30 p.m.
As there were no other speakers, the Public Hearing was closed at 6:07 p.m.
Item #6A Consideration of Approval of an Ordinance for Temporary Street Closure of Town and NCDOT Streets for the Town of Lillington Christmas Parade and Gathering December 14, 2024
Commissioner Moss made a motion to approve the Ordinance for Temporary Street Closure of
Town and NCDOT Streets for the Town of Lillington Christmas Parade and Gathering December 14, 2024. The motion was seconded by Commissioner Babb and approved unanimously.
Item #7 Discussion and Consideration of Approval of a Resolution Of The Town Of Lillington, North Carolina, Authorizing The Negotiation Of An Installment Financing Contract And Providing For Certain Other Related Matters Thereto Mayor McFadden recognized Ted Cole with Davenport Public Finance. Mr. Cole gave a presentation of the financing proposals for the new fire station. The Board discussed the different
options amongst themselves, staff and Mr. Cole. Commissioner Langdon made a motion to
approve the Resolution of the Town of Lillington, North Carolina, Authorizing The Negotiation Of An Installment Financing Contract And Providing For Certain Other Related Matters Thereto as well as choosing Webster Bank to Finance the station for 20 years. Commissioner Babb seconded the motion that passed unanimously.
Non-Agenda Items: Mayor Glenn McFadden inquired as to whether there were any non-agenda items that should be addressed by Town Board members or staff. Adjournment: The meeting adjourned following the unanimous approval of a motion by Commissioner Babb and a second by Commissioner McPhail. Attest:
____________________________ ____________________________ Lindsey B. Lucas, Town Clerk Glenn McFadden, Mayor
TOWN OF LILLINGTON
RESOLUTION FY 2025-07
RESOLUTION FOR THE 2025 MEETING SCHEDULE OF THE
LILLINGTON BOARD OF COMMISSIONERS
WHEREAS, North Carolina General Statute 160A-71 requires each city council to fix the time
and place of its regular meetings;
NOW THEREFORE BE IT RESOLVED that the Board of Commissioners of the Town
of Lillington hereby resolves to the following meeting schedule for 2025:
Monday January 13, 2025 8:30 am
Tuesday January 14, 2025 6:00 pm
Monday February 10, 2025 8:30 am
Tuesday February 11, 2025 6:00 pm
Monday March 10, 2025 8:30 am
Tuesday March 11, 2025 6:00 pm
Monday April 14, 2025 8:30 am
Tuesday April 15, 2025 6:00 pm
Monday May 12, 2025 8:30 am
Tuesday May 13, 2025 6:00 pm
Monday June 9, 2025 8:30 am
Tuesday June 10, 2025 6:00 pm
Monday July 14, 2025 8:30 am
Tuesday July 15, 2025 6:00 pm
Monday August 11, 2025 8:30 am
Tuesday August 12, 2025 6:00 pm
Town of Lillington | 2
102 East Front Street ● P.O. Box 296 ● Lillington, North Carolina 27546 Phone: (910) 893-2864 ● Fax (910) 893-3607 ● www.lillingtonnc.com
Monday September 8, 2025 8:30 am
Tuesday September 9, 2025 6:00 pm
Monday October 13, 2025 8:30 am
Tuesday October 14, 2025 6:00 pm
Monday November 17, 2025 8:30 am
Tuesday November 18, 2025 6:00 pm
Monday December 8, 2025 8:30 am
Tuesday December 9, 2025 6:00 pm
Work Sessions are held at 8:30 a.m. at Lillington Town Hall and Regular Sessions are held at 6 p.m. at Lillington Town Hall.
Adopted this 10th day of December, 2025
__________________________
Glenn McFadden, Mayor
__________________________
Lindsey B. Lucas, Town Clerk
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Town of Lillington
TECHNOLOGY USE POLICY
December 10, 2024
Adopted & Effective:
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TOWN OF LILLINGTON
TECHNOLOGY USE POLICY
Table of Contents
PURPOSE, SCOPE & OWNERSHIP .................................................................................................... 3
DEFINITIONS ................................................................................................................................... 5
SECURITY ......................................................................................................................................... 7
ACCEPTABLE USE .......................................................................................................................... 10
UNACCEPTABLE USE ..................................................................................................................... 12
VIRUS & MALWARE PROTECTION ................................................................................................ 13
INTERNET USE ............................................................................................................................... 14
TOWN WEBSITES .......................................................................................................................... 14
ELECTRONIC MAIL ......................................................................................................................... 16
TELEPHONES & MOBILE DEVICES ................................................................................................. 18
Landline Phones ...................................................................................................................................... 18
Cellular Phones & Smartphones ............................................................................................................. 19
iPads and Tablets .................................................................................................................................... 19
Mobile Data Terminals (MDTs) – Public Safety ...................................................................................... 20
DESTRUCTION OF PUBLIC RECORDS ............................................................................................. 21
COMPLIANCE ................................................................................................................................ 21
MISCELLANEOUS ........................................................................................................................... 19
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Town of Lillington
TECHNOLOGY USE POLICY
PURPOSE, SCOPE & OWNERSHIP
This policy covers the use of all technology resources belonging to the Town of Lillington,
hereafter referred to as Town. It includes, but is not limited to all computer systems of any size
and function and their attached peripherals, software, phones, all mobile communication
devices, faxes, copiers, printers, camera systems, voice mail systems, e-mail systems, network
resources, user accounts, , radios, data in any format and any network accessed by these
systems including the Internet. Systems containing Town data, which are hosted by third parties
outside of the Town’s network, and the personnel with access to those systems, are also
subject to this policy.
All technology resources owned, rented, or leased by the Town are in place to enable the Town
to provide its services in a timely and efficient manner. This is the primary function of these
resources and any activity or action that interferes with this purpose is prohibited. It is critical
that these systems and machines be protected from misuse and unauthorized access. All
technology resources defined in this section, along with all information transmitted by, received
from, and stored upon said systems are considered to be possessed by, and/or the property of
the Town. Additionally, all documents, messages and attachments composed, sent, received or
stored on Town Technology Systems are Town property. Town standards will be established for
all technology (hardware and software). Any deviation from these standards may require
approval of the department head, Chief Information Officer (CIO), Finance Director, HR
Director, and/or the Town Manager.
Because technology systems are constantly evolving, the Town requires its employees to use a
common sense approach to the rules set forth below, complying with not only the letter, but
also the intent of this policy.
In addition to this policy, users are subject to applicable state and federal laws. Improper use or
misuse of Town Technology Systems on a person’s work time or otherwise is a violation of the
Town’s personnel policies. User violation could result in disciplinary action including
suspension, demotion or dismissal. If a policy violation occurs, aside from disciplinary actions
specified under the Town’s policy, system access may be revoked in whole or in part if deemed
to be in the best interest of the Town’s Technology System security.
This policy is not intended to supersede any existing laws or policies regarding records that are
confidential, including, but not limited to, juvenile records in the Police Department, certain
information contained in personnel files, or medical files.
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This policy is intended for internal use by Town employees defined as full-time, part-time,
temporary and interns, all Town Boards and Commissions that may have access to Town
equipment or resources, and non-Town employees covered under this policy, defined as
contractors, vendors, and volunteers who use Town owned, rented, or leased resources.
T e c h n o l o g y U s e P o l i c y 5 | P a g e
DEFINITIONS
Anti-virus/Anti-malware software – Computer programs that attempt to identify, thwart and
eliminate computer viruses and other malicious software.
Applications – Computer software such as word processors, which perform productive tasks for
users.
Authorized Systems – A computer network that allows entry with proper credentials.
Backup Schedule – Plan for duplicating Town data and programs.
Backup Storage Area – Location where Town data and programs reside, typically on a tape, disk
or hard drive.
Blogging – Web log on a website where entries are written in chronological order and
commonly displayed in reverse chronological order.
Chain Letter – Message that induces the recipient to forward copies of a document to other
users. They may contain viruses, false information or threats.
Chatroom – A form of digital conferencing that can be real time online conversations.
Communications Equipment – Device that is physically attached to the Town network and
enables transmission of data.
Computer Access – Ability to utilize the computer and gain admission into the Town’s network.
Computer virus – A computer program that can copy itself and infect a computer without
permission or knowledge of the user.
E-Mail – Electronic Mail: Messages, usually text, sent from one person to another via
computer.
Group Policy – A feature of Microsoft Windows operating systems that provides centralized
management and configuration of computers and remote users.
Hardware – The physical components of a computer system (monitor, CPU, keyboard).
Instant Messenger – Also known as IM, a program that facilitates live chat.
Internet – Vast collection of inter-connected networks that all use the TCP/IP protocols.
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Malware- malicious software designed to damage or gain unauthorized access to a computer
system.
Mobile Devices – Computing appliance that is typically handheld.
MultiFactor Authentication (MFA)- additional layer of security that authenticates your identity
along with your account password. Usually authenticated by a pin sent via text, email or
authenticator app.
Network – The connection of two or more computers together so that they can share resources.
Online Games – Reference to video games that are played over some form of computer network,
most commonly the Internet.
Peripheral Devices – Any equipment such as printers, copiers, faxes, scanners that attaches to
the network.
Public Network – Ability to access the Internet without restrictions.
Remote Access – Access to Town systems from external systems, e.g. via the Internet.
Server – Computer or a software package that provides a specific kind of service to client
software running on other computers.
Social Media – Commonly used websites, such as, Facebook, Twitter, , YouTube, Flickr, Blogger,
Google+, Instagram, Snapchat and LinkedIn.
Software – Collection of computer programs, procedures and documentations that perform
some task on a computer system.
TCP/IP – Transmission Control Protocol/Internet Protocol: A suite of protocols that defines the
Internet. The method used to transmit and receive data over the Internet.
Town Websites – Town’s collection of web pages hosted by a server.
Workstations – Microcomputer designed for technical applications.
User – Any individual who interacts with the computer at an application level.
VPN – Virtual Private Network: is a network that is constructed by using public connections,
usually the Internet, to connect to a private network such as the Town’s internal network.
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SECURITY
Security refers to the protection of all technology resources from any kind of damage and the
protection of data from unauthorized access, distribution, modification or destruction. The
following procedures must be followed to ensure a secure environment.
• A user will be authorized access to the Town’s computer systems by the appropriate
user department head or designee. A request for services must be submitted by the
department head or their designee to the Information Technology Department,
hereafter referred as the IT Department. The CIO or their designee will establish
credentials for the authorized systems, which may include but not limited to software
applications, e-mail, Internet, peripheral devices, building access and time clock access.
This request should be sent directly to the IT Department from the department head or
designee.
• Request for services, as well as, any other document containing IT security access
information, including but not limited to, usernames, passwords, security questions and
answers, and user access rights shall not be considered public record and shall not be
released to any person, firm, or entity without direct written permission from the CIO
and Town Manager.
• All Town users must read and sign a copy of this policy and return it to their department
heads. Department heads and Human Resources will keep a file of signed copies in the
employee’s personnel file.
• When an employee is suspended or terminated, a written notification will be submitted
from the department head or his/her designee to the IT Department immediately.
Access to all systems will be suspended immediately.
• Non-Town employees, as previously defined, will be the responsibility of the
department head, who will notify the IT Department when it is necessary to determine
accessibility and establish system credentials.
• IT Department will ensure security of unattended workstations by utilizing a group
policy to lock computer screens after twenty (20) minutes or less of inactivity.
Department heads may request a modification of this procedure through written
request to the IT Department. Requests will be considered based on location and access
levels of the computer or user. Users must logoff all computer systems at the end of
each work day.
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•For security, network, and computer systems maintenance purposes, authorized
individuals may monitor equipment, systems, data and network traffic at any time.
•Any hardware or peripherals not belonging to the Town will not be permitted to attach
to the Town’s internal network without written authorization from the department
head and final approval from the CIO. Personal hardware includes, but is not limited to,
computers, cell phones, mobile devices, cameras, iPods, MP3 players, flash drives and
portable hard drives. If it is determined that a non-Town owned computer or device
must attach to the network, a checklist of required software will be provided by IT to
the department head. Computer owners are responsible for installing all required
software. Town IT staff will be available for consultation and will validate all required
software before non-Town owned equipment can participate on the Town’s network.
Unauthorized devices connecting to the Town’s internal network can create an
enormous security risk leaving the Town’s network exposed to numerous threats and
immeasurable damage. A public/guest network will be provided at all Town buildings.
Personal devices may connect to public/guest networks upon accepting the Terms of
Use.
•For remote assistance help desk purposes, authorized individuals may connect through
remote access software to equipment, systems, data and network traffic at any time.
•The Town has the right to monitor, audit, and/or inspect any and all aspects of the Town
Technology Systems at any time, without advance notice to any users, and without the
permission of any user. Failure to monitor in any specific situation does not constitute a
waiver of the Town’s right to monitor. Users within the scope of this policy are advised
that they have no privacy rights and no user of Town Technology Systems has any
expectation of privacy in any message, file, image, or data sent, retrieved, or received
when using Town Technology Systems. Employees must understand that all technology
resources are Town property.
•The Town does not guarantee the confidentiality of user information stored on any
network, computer, or communications device belonging to the Town. Users should be
aware that the data they create on Town technology or communications systems
remains the property of the Town and is not private (unless the data is protected by
privacy or confidentiality laws). Information that is stored on or transmitted to or from
Town Technology Systems may be subject to disclosure pursuant to the North Carolina
Public Records Law. Users should refrain from, where possible, storing personal files
and data on Town Systems.
•Users are responsible for safeguarding their own credentials and computer access and
SHALL NOT let another person use their credentials or access. Users are directly
accountable for all activity connected to their user ID.
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• Passwords may be required to be changed every ninety (90) days and SHALL NOT be
divulged to any other person. Passwords should be memorized and not written down
unless kept in a secure place. The CIO shall determine when access will require routine
password changes.
• Multi-Factor Authentication (MFA) may be required to utilize any Town user account or
technology. Users may use their personal or Town issued devices to set up an approved
authenticator app or a personal or Town cell phone number to authenticate. If the user
does not wish to use one of these methods, they will be issued a Town Security device
token. It is imperative that the user keep the device secured at all times.
• The Town has no control or access to any Authenticator apps used for MFA by the users
on their personal device. All authentication is solely handled by the app provider.
• Passwords must be changed at any time a user believes their password has been
compromised. Any credentials such as ID badges, proximity cards or security tokens
that become lost, stolen or misplaced must be reported to the department head and IT
Department immediately.
• Users SHALL NOT abuse or misuse the Town’s technology resources or violate any rules
in other portions of the Town Personnel Policy, local, state, or federal laws via the
Town’s technology resources.
• Users SHALL NOT copy or attempt to copy any software or data from Town Systems
without having written authorization.
• Users SHALL NOT attempt to bypass any security mechanisms.
• No third party may be allowed access to Town Systems without prior authorization and
approval from the CIO.
• Users SHALL NOT engage in abuse or misuse of the Town’s technology resources.
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• Users SHALL NOT install any computer software on any Town owned computers or
devices, not authorized by the Town, regardless of the ownership of the software except
as allowed in other sections of this policy. Users may not install software personally
owned or downloaded for free from the Internet. This includes but is not limited to,
music software, photo software, Internet search software, screen savers and desktop
backgrounds. Many of these software applications may contain viruses and/or malware
that may compromise the integrity and security of the Town’s network.
• Administrative rights are granted to IT staff and those departments required by state
regulations to have local administrative rights. Department heads must approve
software requests and submit to the IT Department. Any software that adversely affects
the performance of the machine or network will not be permitted on the Town system.
• Separation of duties will be practiced in all departments, to the greatest extent possible,
such that no individual has total control of a process.
• Users shall disclose to their department head, who shall then notify IT of any suspected
or confirmed unauthorized use or misuse of technology resources and any potential
security breaches or loopholes.
• The IT Department, where possible, will work to ensure that all network infrastructures,
including but not limited to communications equipment, servers, data cables and
telephone cables are secured behind locked doors with limited access by authorized
personnel.
• Remote access to Town systems consumes technology resources above and beyond
those required for local access. Remote access shall be granted on a case-by-case basis
based upon the unique needs of the user and available resources. Remote access users
are subject to all policies herein.
ACCEPTABLE USE
At all times when an employee is using Town technology resources, he or she is representing
the Town. While in the performance of work-related functions, while on the job, or while using
publicly owned or publicly provided technology resources, Town employees shall use them
responsibly and professionally, and remember that public perception is extremely important.
They shall not use these resources in an illegal, malicious, or obscene manner. When using
Town resources, employees shall abide by all Town policies including the Town’s policy on
sexual harassment.
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Town Technology Systems are intended for business use. However, employees may make
reasonable, incidental or occasional, personal use of the Town’s computers and data
communications. Any personal use must adhere to the following:
•Must not incur any additional cost to the Town. If, in a critical situation, an employee
must use Town resources that incur costs, the employee will reimburse the Town within
30 days of the occurrence.
•Must not incur security risks to the Town or the Town’s network.
•Must not violate the Town Personnel Policy.
•Must not have a negative impact on employee performance, including interfering with
work duties, work performance or work productivity.
•Must not have a negative impact on system performance.
•Must not violate this Policy or any applicable laws or regulations.
•Must not violate contractual agreements or intellectual property rights.
•Must not be used for personal gain.
•Must not be used for solicitation.
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Users are required:
•To respect the privacy of other users; for example, users shall not intentionally seek
information on, obtain copies of, or modify files, data, or passwords belonging to other
users, unless explicit permission to do so has been obtained. It shall be understood that
this rule does not apply to supervisory personnel, who shall have complete authority to
access any files created by users in their departments.
•To protect data from unauthorized use or disclosure as required by state and federal
laws and agency regulations. (i.e., confidential information)
•To respect the integrity of computing systems; for example, users shall not use or
develop programs that harass other users, or infiltrate a computer or computing system
and/or damage or alter the software components of a computer or computing system,
or otherwise interfere with data, hardware, or system operation.
•To respect the legal protection provided to programs and data by copyright and license.
The Town owns licenses to a number of proprietary programs, which allow the Town to
use the software but severely restricts anything other than the use of the software on a
single computer or network. Any redistribution of software from the computing
systems breaches agreements with our software suppliers, as well as applicable federal
copyright, patent and trade secret laws. U.S. Copyright Law provides for civil damages
of $50,000 or more and criminal penalties including fines and imprisonment in cases
involving the illegal reproduction of software. Therefore, no copying, downloading, or
distributing of any copyrighted materials, including but not limited to messages, e-mail,
text files, program files, image files, database files, sound files, and music files is allowed
without prior authorization by IT.
UNACCEPTABLE USE
Unacceptable uses are defined as those uses that do not conform to the purpose, goals, and
mission of the Town and to each user’s authorized job duties and responsibilities as determined
by the Town Manager or his/her designee.
Examples of unacceptable activities include, but are not limited to:
•Private or personal, for-profit activities or for any illegal purpose, including but not
limited to communications that violate any laws or regulations.
•The use of the Town network or any device owned, leased, maintained or otherwise
controlled by the Town to access, transmit, store, display, or request obscene,
pornographic, erotic, profane, racist, sexist, libelous, or otherwise offensive or abusive
material (including messages, images, video, or sound). The Town may install
monitoring software or use filters to monitor or block access to any sites that would or
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possibly could violate this policy. Any user who attempts to avoid such software or filter
or uses a device owned, leased, maintained, or otherwise controlled by the Town to
access, transmit, store, display, or request such material is in strict violation of this
policy and may face disciplinary action, up to and including dismissal in accordance with
the Town of Lillington Personnel Ordinance. For the purposes of this section,
“pornography” and “pornographic material” is any material depicting sexual activity as
defined in N.C. General Statute § 14-190.13.
o Any employee who becomes aware of any individual that uses the Town network
or uses a device owned, leased, maintained, or otherwise controlled by the Town
to access pornography shall report the violation to the Town’s Chief Information
Officer.o Annually, no later than August 1, and in the format required by the State Chief
Information Office, the Town’s Chief Information Officer shall report information
to the State Chief Information Officer on the number of incidences of
unauthorized viewing or attempting viewing of pornography on the Town’s
network or on any device owned, leased, maintained, or otherwise controlled by
the Town whether or not the unauthorized viewing was by an employee, elected
official, or appointee of the Town.o This section shall not apply to an official or employee that is engaged in any of
the activities permitted by N.C. General Statute 143-805(d) in the course of that
official’s or employee’s official duties.
•Intentionally seeking information about, obtaining copies of, or modifying of files, other
data, or passwords belonging to other users, unless explicit permission to do so has
been obtained.
•Interfering with or disrupting users, services, or equipment. Such disruptions would
include, but are not limited to (1) distribution of unsolicited advertising or messages, (2)
propagation of computer worms or viruses, and (3) attempting to gain unauthorized
entry to another computer or computer system whether owned by the Town or outside
of the Town.
•Removing or relocating any computer equipment (hardware, software, data, etc.)
without supervisor’s prior authorization and IT notification.
•Allowing unauthorized users, including an employee’s family or friends, to use the
Town’s technology resources.
VIRUS & MALWARE PROTECTION
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Every computer user is to remain vigilant and alert to the possible transmittal and infection of a
computer virus. Most e-mail viruses are transmitted through attachments or embedded links.
Never click on a link or open attachments that contain the following extensions: .exe, .vbs,
.com, .bmt, .hta, .shs, .vbe, .cmd. Upon detecting any virus, or suspected virus, users are to
cease activity immediately and report it to the IT Department. Refer to Security section of this
policy for software and hardware installation requirements, procedures, and policies.
Appropriate anti-virus and anti-malware software will be made available by IT and loaded on
every workstation and laptop computer.
INTERNET USE
A Town Internet and network access, whether connected by cable, Wi-Fi, wireless air card, or
any other means, is a resource granted to employees upon department head approval. All
employees are encouraged to use the Internet to its fullest potential, providing effective
services of the highest quality, discovering innovative and creative ways to use resources and
improve services, and encouraging staff development. The Internet should be a primary
method for the exchange of ideas and information.
The Internet provides easy access to software distributed by companies on a trial basis. The
free access does not necessarily indicate the software is free or that it may be distributed
freely. Users are expected to comply with the copyright policy as previously stated. Users
should never use or download software from file sharing websites or services (commonly
known as “P2P”). Refer to Security section of this policy on downloading and installing
software.
Blogging, Instant Messaging, online games, online movie/video streaming, online audio
streaming, and chat room participation are not permitted unless demonstrable benefits to
productivity are proven. These types of activities place extra strain on network resources and
can affect network performance for the entire site. In all cases, prior approval of the
department head and the IT Department must be obtained.
A public/guest network will be provided for outside vendors, contractors, and users who need
to access the Internet for the purpose of demonstrations and presentations to Town Staff.
Town Staff may use public/guest network for personal computers and devices upon user
acceptance of Terms and Use.
TOWN WEBSITES
In order to maintain a consistent, useful and professional presence on the Internet, IT has
established procedures that will assist departments in creating, publishing and maintaining
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content for the official Town website or any sub-website created by any Town Department,
Board, Commission or entity directly affiliated with the Town or which is funded by Town funds.
Each Department and its employees have a responsibility to make sure that all public
information disseminated via the Town website is accurate, current as possible, and in
accordance with this policy. Employees shall provide, in association with such information, its
source and the date it was published. An electronic mail address or other contact information
allowing the recipient to contact public staff must be published.
Only authorized employees shall be allowed to update the website. Authorized employees are
directly accountable for all activity connected to their user ID. Departments who have a need
to create or contract for its own physical website must have approval from the Town Manager
and the IT Department. Links to personal websites are not allowed. Information on events will
be limited to those directly sponsored by or affiliated with the Town.
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ELECTRONIC MAIL
Electronic mail is intended for Town business; however, the Town recognizes the fact that the
use of e-mail for incidental purposes may occur and is not likely to strain Town resources.
Personal communications should not be excessive and it must be understood that the use of
email passwords does not imply privacy or confidentiality. E-mail messages, made or received
in connection with the transaction of public business by any agency of North Carolina
government or its subdivisions are considered a public record and the property of the Town.
The Town Manager and supervisory personnel have the right to review the contents of all
employees’ e-mails (personal or business related). Employees are solely responsible for how
their email is used and managed.
Contents of email dictate the retention of email and each email user is responsible for the
retention of their own email. Email must be retained according to the procedures defined in
the “Email as a Public Record in North Carolina: Guidelines For Its Retention and Disposition”
publication, submitted by the NC Department of Cultural Resources or other regulatory
agencies as applicable.
Personal email addresses being used for Town business purposes, including but not limited to
employees, Town Commissioners, boards and commissions, should follow the same retention
guidelines as Town email addresses. This policy does not attempt to monitor or manage
personal computer accounts or equipment. Where at all possible, official Town email addresses
should be used to conduct Town business.
PII or Personally Identifiable Information is any information that relates to a person’s identity
which includes SSN, birthdate, employer taxpayer identification number, driver’s license
number, passport number, state ID number, checking/saving account number, credit/debit card
number, PIN code, electronic ID number, internet account number, biometric data, fingerprints,
digital signatures, passwords, and any other numbers or information that can be used to access
a person’s financial resources. This information must be protected from any sort of data loss or
disclosure. Please note that any communication of this type of information must be sent
through secure communications only. Email is not a secure means of communication and
should not be used to share sensitive data. If an employee needs to send out any PII, the
employee shall use a secure method of communication which includes fax, encrypted email, or
secure file sharing. If an employee has authorization to access sensitive information, it is =the
employee’s responsibility to make sure that it is handled securely and not disclosed to any
unauthorized personnel. Great care should be used when transmitting or accessing PII.
Unacceptable uses of e-mail include, but are not limited to:
• Using email software that is not the Town adopted standard.
• Sending or forwarding chain letters.
• Sending or forwarding copies of documents in violation of copyright laws.
• Compromising the integrity of the Town and its business in any way.
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•Sending or forwarding messages containing derogatory, racial, offensive, abusive,
threatening, obscene, harassing, or other language inappropriate for the organization.
•Sending or forwarding messages that violate the Town’s sexual harassment policy.
•Willful propagation of computer viruses.
•Overtaxing the network with unnecessary group mailings or large emails (over 20 MB).
Users should utilize SendThisFile, Microsoft 365,or other means of sending large files to
recipients.
•Sending or forwarding confidential information including, but not limited to personally
identifiable information, juvenile records in the Sheriff’s Department, certain
information contained in personnel files or medical files. This includes confidential
information as defined by state and federal laws and agency regulations.
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TELEPHONES & MOBILE DEVICES
The Town may provide telephones and mobile devices to employees for business use, when the
budget allows and determined necessary by the department head. A mobile device shall be
used for appropriate business purposes. Such use is defined to be appropriate when an
employee must utilize the device to further Town operations. The Town may review call logs,
voicemail recordings, text messages, email transcripts, GPS data or any other data contained on
or from Town owned devices.
All devices and accessories provided by the Town are property of the Town and must be
returned upon request. The department head, the Finance Department and the IT Department,
shall monitor mobile device use and charges. Any intentional, deliberate misuse of any device
may result in the loss of mobile device service and employee reimbursement of charges and
could result in disciplinary action.
It is the responsibility of the department head, or his/her designee, to review the detailed bills
for the department each month. The department head/designee should note usage patterns
for both individuals and the department and investigate any unusual or questionable patterns.
It is also the department head’s responsibility to ensure that any required reimbursement to
the Town is done on a timely basis and in accordance with the requirements set forth herein.
Laptops, cell phones, and other electronic devices in vehicles must be stored in a secure
location or otherwise out of sight. Devices should never be left in vehicles overnight. To the
degree possible, technology resources should be protected from theft and/or vandalism, fire or
other damage including natural environmental hazards. Devices damaged or stolen must be
reported to department head and CIO immediately.
Landline Phones
The use of telephones is a necessary part of the day-to-day operation for many Town
employees. Unfortunately, inappropriate telephone use may also be a source of distraction
that cause lower productivity and, in some instances, may present a safety hazard. Personal
calls may be allowed on Town landline phones, however, employees are expected to be good
stewards of Town resources and time, and therefore, personal calls should be limited and not
affect job performance or duties. If personal misuse is determined, employee may be restricted
to only business use or other disciplinary actions may occur.
The Town may monitor and/or record phone calls made or received using the Town phone
systems and may access and review call logs and voicemail recordings to ensure compliance
with this and other Town policies. Users have no expectation of privacy when using Town
owned phone systems.
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Cellular Phones & Smartphones
The Town may provide employees with mobile phones, smartphones, or wireless Internet
devices. These devices must be used primarily for business use. Personal calls and use may be
allowed on Town devices, however, employees are expected to be good stewards of available
data. If personal misuse is determined, employee may be restricted to only business use or
privileges may be revoked.
All Smartphone devices shall use passwords and must adhere to the same password standards
as previously defined. It is the user’s responsibility to ensure devices are property secured. All
smartphone devices shall contain Town management software/profile. Removal or attempt to
bypass this software/profile will be in strict violation of this policy.
The Town reserves the right to inspect all files stored on smartphones that are the property of
the Town to ensure compliance with this policy. Users should not presume to have any
expectation of privacy in any matter created, received, stored in, or sent from any Town issued
smartphone.
Issued smartphones and all Town purchased accessories must be returned to the IT Department
when the user’s service has ended. When the smartphone is returned, the Town will conduct
any appropriate backup of files in accordance with the Public Records and Retention laws. The
smartphone will then be wiped clean of all information.
iPads and Tablets
The Town has recognized that mobile devices, including iPads and tablets, may provide a
benefit in the efficient performance of Town duties and thereby improve service to the public.
Town issued devices will be managed under a Town of Lillington email. Users should not log
into the device using their personal accounts. All tablets are enrolled in the Town Mobile Device
Management to allow applications to be installed.
Users are responsible for the general care of the mobile device issued by the Town. Mobile
devices that are broken or fail to work properly must be taken to the IT Department for an
evaluation. Mobile devices that have been lost, stolen or damaged from misuse, neglect or are
accidentally damaged, in the sole and exclusive judgment of the Town Manager in consultation
with the Town Attorney and CIO, will be replaced or repaired by the Town, with the cost borne
by the issued user. Mobile devices should remain free of any writing, drawing, stickers or labels
that are not the property of the Town.
Software and applications installed by the Town must remain on the mobile device in usable
condition and be readily accessible at all times. From time to time, the Town may add or
upgrade software applications for use by the user such that users may be required to check in
their mobile devices with the IT Department for periodic updates and synchronizing. All
software purchased by the Town is property of the Town and may not be transferred to any
other individual. Personal software purchased and installed on Town mobile devices are at the
risk of the user/purchaser. The Town offers no guarantee, warranty or support for personal
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software purchased and installed on Town mobile devices nor will the Town refund any
purchases for personal software installed on Town mobile devices.
All of the Town's computer systems and devices, including iPads and tablets, are considered to
be public property. All documents, files and email messages created, received, stored in, or
sent from any Town mobile device is considered public record, subject to disclosure to the
public pursuant to the North Carolina Public Records laws (with only limited exceptions as
provided by law). Users shall not use the mobile device, computer or communication devices in
any way as to violate the Open Meetings law requirements, applicable governing laws, or
ethical conduct and principles of an elected public official.
Issued iPads, tablets and all Town purchased accessories must be returned to the department
head or IT Department when the user’s term or service has ended. When the mobile device is
returned, the Town will conduct any appropriate backup of files in accordance with the Public
Records and Retention laws. The mobile devices will then be wiped clean of any and all
information.
The Town reserves the right to inspect any and all files stored on mobile devices that are the
property of the Town in order to ensure compliance with this policy. Users should not presume
to have any expectation of privacy in any matter created, received, stored in, or sent from any
Town issued mobile device.
Mobile Data Terminals (MDTs) – Public Safety
The security of the Town's computer system is of paramount importance in maintaining an
efficient and well-guarded database for referencing computerized information. Users will
strictly adhere to the following guidelines on the usage of MDTs, regardless of type, make, or
manufacturer and associated software to ensure compliance with federal copyright laws and
protection against computer viruses. Any and all policies contained within the Town’s
Technology Use Policy shall apply to MDTs.
MDTs, regardless of type, make, or manufacturer, have been installed in public safety vehicles
to assist personnel in the execution of efficient public safety functions and to reduce the
amount of radio traffic necessary to conduct public safety operations. Prior to use, personnel
will be trained in the use and care of MDTs and are expected to use this equipment in
accordance with instructions provided. MDTs are designed and have been programmed to
provide information from State and National computer files on persons, vehicles and other
property.
Employees shall use the MDTs to check information on persons, vehicles, and other property
and shall not request these types of transactions be conducted by Dispatch. The only
exceptions will be when an officer needs a printout of the information for inclusion with other
reports or does not have an MDT or the MDT is not functioning properly. If the unit is not
functioning properly, users are expected to request repairs as soon as possible during the
normal working hours of the IT Department.
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MDTs may be programmed to allow for communication of official public safety business
between public safety vehicles and between field units and Dispatch. No vulgar, obscene, or
derogatory messages, racially and/or sexually derogatory remarks shall be transmitted via the
MDT nor shall any private, non-public safety business conversations be conducted between
units through the MDT. All transmissions may be logged and maintained for future reference
and to provide education and training as deemed necessary.
Employees shall log on with their designated username and password. Employees shall never
use another employee’s credentials. At the end of shift, personnel shall log off the MDT
system.
All Internet policies must be followed when using MDT devices even if they are not connected
to Town Internet sources. The use of the Internet is not a private matter and the Town reserves
the right to monitor all uses without notification to the member; periodic audits may be
conducted by the IT Department. The Town reserves the right to inspect any and all files stored
on MDTs that are the property of the Town in order to ensure compliance with this policy.
Users should not presume to have any expectation of privacy in any matter that is created,
received, stored in, or sent from any Town issued MDT. All MDT devices shall contain Town
management software/profile. Removal or attempt to bypass this software/profile will be in
strict violation of this policy.
DESTRUCTION OF PUBLIC RECORDS
No public records shall be destroyed, sold, loaned or otherwise disposed of, unless in
compliance with the NC Department of Cultural Resources and in accordance with G.S. 121-5.
COMPLIANCE
The CIO, department head and Town Manager will review reported and perceived violations of
this policy and may impose restrictions, suspend or terminate technology access, or remove
technology equipment during or as a result of an investigation. The Town Manager or CIO may,
at any time, inspect or request to inspect any Town equipment issued to any department or to
any user. The user shall, immediately produce item for inspection. Failure to produce
equipment within a reasonable time may result in disciplinary action. Other appropriate action
in response to abuse or misuse of technology resources may include, but not be limited to:
• Reimbursement to the Town for resources consumed
• Legal action, including action to recover damages
• Disciplinary actions, including suspension, demotion, or dismissal pursuant to the
Town’s Personnel Policy
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Department heads will be responsible for the enforcement of the Town’s Technology Use
Policy.
MISCELLANEOUS
•Procuring, leasing, receiving, maintaining, and installing hardware or software for or on
Town networks shall be done only by or under the direction of the CIO.
•Due to technology systems constantly evolving, it is recommended that this policy be
reviewed by Town IT Department on a yearly basis.
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TOWN OF LILLINGTON
TECHNOLOGY USE POLICY
UNDERSTANDING AND ACCEPTANCE OF POLICY
I , have received/had an opportunity to review a copy of the Town of Lillington Technology Use Policy. I have read the policy in its entirety and have been provided the opportunity to ask questions about it. Furthermore, I fully understand and agree to comply with this policy. I also accept that it is my responsibility to seek clarification
from my supervisor or HR staff if at any time I am unclear about the policy’s requirements. I
fully understand that failure to comply with this policy could result in disciplinary action, up to and including dismissal.
Employee’s (Legal) Printed Name
Employee’s Signature
Date
TOWN OF LILLINGTON
`
TOWN OF LILLINGTON
102 East Front Street ● P.O. Box 296 ● Lillington, North Carolina 27546 Phone: (910) 893-2654 ● Fax (910) 893-3693 ● www.lillingtonnc.org
ORDINANCE FY2025-11
BUDGET ORDINANCE AMENDMENT
FISCAL YEAR 2024-2025
#5
BE IT ORDAINED, by the Governing Board of the Town of Lillington, North Carolina, that the
following amendment is made to the budget ordinance for the period ending June 30, 2025:
Section 1. To amend the General, Powell and Water/Sewer Funds, the revenues and
expenditures are to be changed as follows:
Account Number Description Increase Decrease
10-00-470-4500 Contracted Services $ 6,000
10-10-510-7400 Capital Outlay $ 18,000
10-00-410-6514 Transfer to Fire
Station Project $ 200,000
10-00-399-0000 Fund Balance $ 224,000
41-00-398-0000 Transfer from GF $ 200,000
41-00-530-1000 Planning & Design $ 200,000
To budget funds for Fire Station Project, Police capital, contracted services.
Section 2. Copies of this budget amendment shall be furnished to the Governing Body,
Budget Officer, Clerk and the Finance Director for their direction.
Town of Lillington | 2
102 East Front Street ● P.O. Box 296 ● Lillington, North Carolina 27546 Phone: (910) 893-2654 ● Fax (910) 893-3693 ● www.lillingtonnc.org
Adopted this 10th day of December, 2024
________________________
Glenn McFadden, Mayor
Attest:
__________________________
Lindsey B. Lucas, Town Clerk
1
Rev. 11-25-24
NORTH CAROLINA
HARNETT COUNTY
CONTRACT FOR ENGINEERING SERVICES
THIS CONTRACT is entered into by and between Consor North America, Inc, hereinafter referred to as the
“Engineer” and the Town of Lillington, a North Carolina municipal corporation. hereinafter referred to as
the “Town”.
WITNESSETH
WHEREAS the Town desires to procure an Engineer to perform services, and
WHEREAS, the Town has completed necessary steps for retention of professional and other services under applicable Town policies, and
WHEREAS, the Town has agreed to engage the Engineer, and the Engineer has agreed to contract with the
Town for performance of services as described, and according to the further terms and conditions, set forth herein.
NOW THEREFORE, in consideration of sums to be paid to the Engineer, and other good and valuable
consideration the Engineer and Town do contract and agree as follows:
1.Scope of Services/Description of Project
The Town desires to retain on-call professional engineering services for, related to, and in support of the
Town of Lillington’s Engineering Department. Services may include but are not limited to; study, concept,
planning, design and construction, and project management for sidewalks, greenways, roadwayimprovements, bridges, culverts, stormwater improvements and any other professional services required by
the Town.
The Engineer will serve as the Town's professional engineering representative in those tasks of the project to which this Contract applies and will give consultation and advice to the Town during the performance of
their services.
The Engineer now has or will secure at their expense, including subconsultants, all personnel and facilities required to perform the services to be rendered under this Contract. Such personnel are not employees of,
nor have they any direct contractual relationship with the Town.
The Engineer is authorized to engage subconsultants, including surveyors, geotechnical and materials testing
firms, to assist in the work included under this Contract to the extent such services are included herein. No
subcontract work is authorized for which the Town will incur any costs beyond those agreed upon and set
forth in Section 4.
Specific resources and responsibilities will be listed and described in separate Statements(s) of Work (SOW)
which shall incorporate the terms and conditions of this Contract through reference.
2
2.Services Provided by the Town
It is understood that certain services as required may be performed and/or furnished by the Town Theseservices may include the following:
Assist the Engineer by placing at their disposal all available information pertinent to the project, including previous reports and other relative data.
Assist in gaining access to and making all provisions for the Engineer to enter’ upon public and private property as required for performance of their services described herein.
Examine all studies, reports, sketches, drawings, specifications, proposals and other documents prepared by the Engineer, obtaining advice of legal counsel and/or such other consultants as the Town deems appropriate
for such examination and rendering in writing decisions pertaining thereto within a reasonable time so as
not to delay the service of the Engineer.
Giving prompt written notice to the Engineer whenever the Town observes or otherwise becomes aware of any problems or changed circumstances in the project.
Furnishing the Engineer in a timely manner with copies of pertinent correspondence relating to this project,
which would not have otherwise been delivered to the Engineer.
Designate in writing a person to act as the Town's representative with respect to the work to be performed
under this Contract, such person(s) shall have complete authority to transmit instructions, receive
information, interpret and define Town's policies and decisions with respect to materials, equipment,
elements and systems pertinent to the services covered by this Contract.
The Town shall provide to the Engineer such information as is available to the Town for rendering of services
hereunder. The Engineer may rely on the sufficiency of such information.
Insofar as any of the above services are necessary for the Engineer's performance of their obligations under
this Contract, the Town shall be responsible for providing such services in a satisfactory and timely manner
so as not to delay the Engineer in their performance thereof.
3.Schedule/Time of Performance
The work to be performed and the services rendered under this Contract shall commence as directed by the
Town. In performing the services described in this Contract and/or the Statement(s) of Work (SOW), it ismutually agreed that time is of the essence. Work under the contract will be for a period of three years with
the option of extending the contract up to two additional one-year terms.
4.Compensation/Time of Payment
a.Compensation not to exceed $50,000 per task order and payment will be authorized under a
subsequent written Statement(s) of Work (SOW) signed by the parties, including lump sum fees
for some services (if applicable), hourly fees, and subconsultant services, unless changed by aduly authorized amendment. The standard Town of Lillington payment term is NET 30 days
from the date of invoice.
3
b.Compensation for each service provided by the Engineer to the Town shall be set forth in each
applicable Statement of Work. Compensation shall be on an hourly basis, lump sum basis, or acombination depending on the nature of the task and specificity of the task scope which will be
negotiated for each task and set forth in each Statement of Work.
i.Lump sum fees when applicable, shall be negotiated upon development of a detailed
scope for the perspective task(s) or portions thereof.
ii.For work performed on an hourly basis, the Town will be billed in accordance with the hourlyrate schedule in Exhibit A. The Engineer shall be entitled to submit an updated hourly rate
schedule after (12) months of the date of contract execution.
5.Standard of CareEngineer shall perform for, or furnish to, Town professional engineering and related services in all phases of
the project to which this Contract applies as hereinafter provided. Engineer shall serve as Town's prime
design professional and engineering representative for the project providing professional engineeringconsultation and advice with respect thereto. Engineer may employ such Engineer's Consultants as Engineer
deems necessary to assist in the performance or furnishing of professional engineering and related services
hereunder. Engineer shall not be required to employ any Engineer's Consultant unacceptable to Engineer.
The standard of care for all professional engineering and related services performed or furnished by Engineer
under this Contract will be the care and skill ordinarily used by members of Engineer's profession practicing under similar conditions at the same time and in the same locality.
6.Opinions of Probable Construction Cost
Engineer’s Opinions of Probable Construction Cost provided for herein are to be made based on Engineer'sexperience and qualifications and represent Engineer’s best judgment as an experienced and qualified
Professional Engineer generally familiar with the construction industry. However, since Engineer has no
control over the cost of labor, materials, equipment, services furnished by others, the Contractor’s methods
of determining prices, or competitive bidding or market conditions, Engineer cannot, and does not, guaranteethat proposals, bids, or actual Construction Cost will not vary from opinions of probable Construction Cost
prepared by the Engineer. Any such Opinions of Probable Construction Cost prepared by the engineer are
provided without liability to the Engineer unless not made based on Engineer's experience and qualificationsor opinions that do not represent Engineer’s best judgment as an experienced and qualified Professional
Engineer generally familiar with the construction industry. If the Town wishes greater assurance as to
probable Construction Cost, Town may employ an independent cost estimator.
7.Notices
All notices, requests for payment, or other communications arising hereunder shall be sent to the following:
Town of Lillington
Attn: Landon Chandler
Telephone: 910-893-0316
PO Box 296
Lillington, NC 27546
Consor North America, Inc.
attn. Nilesh Surti, PE
Telephone: 888-451-6822
6505 Waterford District Drive, Suite 470 Miami, Florida 33126
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8. Non—discrimination In consideration of the signing of this Contract, the parties hereto 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, no matter how remote.
9. Reserved
10. Assignment
Neither the Town nor the Engineer will assign, sublet, or transfer their interests, duties, or obligations
hereunder without the prior written consent of the other. Nothing herein shall be construed as creating any
personal liability on the part of any officer or agent of any public body which may be a party hereto, nor shall it create any rights or benefits to parties other than the Town and the Engineer, except such other rights
as may be specifically called for herein.
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 Harnett
County Civil Superior Court.
12. Insurance
Engineer agrees to maintain, on a primary basis and at is sole expense, at all times during the life of this Contract the following coverages and limits. The requirements contained herein, as well as Town's review
or acceptance of insurance maintained by Engineer is not intended to and shall not in any manner limit or
qualify the liabilities or obligations assumed by Engineer under this Contract. Commercial General Liability - Combined single limit of no less than $1,000,000 each occurrence and
$2,000,000 aggregate Coverage shall not contain any endorsement(s) excluding nor limiting
Product/Completed Operations, Contractual Liability or Cross Liability.
Automobile Liability - Limits of no less than $1,000,000 Combined Single Limit Coverage shall include
liability for Owned, Non-Owned and Hired automobiles In the event Contractor does not own automobiles,
Engineer agrees to maintain coverage for Hired and Non-Owned Auto Liability, which may be satisfied by way of endorsement to the Commercial General Liability policy or separate Auto Liability policy
Automobile coverage is only necessary if vehicles are used in the provision of services under this Contract
and/or are brought on a Town of Lillington site.
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Worker's Compensation & Employers Liability - Engineer agrees to maintain Worker s Compensation
Insurance in accordance with North Carolina General Statute Chapter 97 and Employers Liability insurance with limits of no less than $1,000,000 each accident, each employee and policy limit Waivers of Indemnity
are not recognized by the North Carolina Department of Insurance and will not be accepted by the Town of
Lillington.
Additional Insured - Engineer agrees to endorse the Town as an Additional Insured on the Commercial
General Liability and Automobile Liability. The Additional Insured shall read “Town of Lillington as its interest may appear.”
Certificate of Insurance - Engineer agrees to provide the Town a Certificate of Insurance evidencing that
all coverages, limits and endorsements required herein are maintained and in full force and effect, and Certificates of Insurance shall provide a minimum thirty (30) day endeavor to notify, when available, by
Engineer's insurer If Engineer receives a non-renewal or cancellation notice from an insurance earner
affording coverage required herein, or receives notice that coverage no longer complies with the insurance
requirements herein, Engineer agrees to notify the Town within five (5) business days with a copy of the non-renewa1 or cancellation notice, or written specifics as to which coverage is no longer in compliance
The Certificate Holder address should read:
Town of Lillington
Town Manager
P.O. Box 296
Lillington, NC 27546 Umbrella or Excess Liability - Engineer may satisfy the minimum liability limits required above under
an Umbrella or’ Excess Liability policy There is no minimum Per Occurrence limit of liability under the
Umbrella or Excess Liability, however, the Annual Aggregate limits shall not be less than the highest 'Each
Occurrence' limit for required policies Engineer agrees to endorse Town of Lillington as an 'Additional Insured’ on the Umbrella or Excess Liability, unless the Certificate of Insurance states the Umbrella or
Excess Liability provides coverage on a 'Follow-Form” basis.
Professional Liability - Limits of no less than $1,000,000 each claim.
All insurance companies must be admitted and licensed to do business in North Carolina and be acceptable
to the Town of Lillington. If the insurance company(s) is a permitted surplus lines insurer, the insurance
company name and NAIC number must be submitted to the Town for approva1 before commencing work. Engineer shall be required to provide the Town no less than thirty (30) days’ notice of cancellation, or any
material change, to any insurance coverage required by this Contract.
A Certificate of Insurance (COI) must be issued by an authorized representative of the insurance carrier(s).
Certificates of Insurance must have the Insurance Company name and NAIC number clearly identified. The
acceptance or the review of Certificates of Insurance by the Town of Lillington does not relieve Engineer of any requirements in the contract to provide specific insurance coverage required by the contract, nor does
the acceptance or review of Certificates of Insurance covenant all insurance requirements have been met.
Upon the request of Town, Engineer shall provide proof of the insurance required herein.
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13. Indemnity
To the fullest extent permitted by law, the Engineer shall indemnify and hold harmless the Town and each
of the Town's officers, officials, employees, agents and independent contractors (excluding the Engineer) from and against any and all losses, damages, costs, expenses (including attorneys' fees), obligations, duties,
fines penalties, royalties, interest charges and other liabilities (including settlement amounts) paid or
incurred by any of them as a result of any claims, demands, lawsuits, actions, or proceedings (i) arising
from the Engineer's failure to perform its obligations under this Contract, (ii) arising from any act of negligence or willful misconduct by the Engineer or any of its agents, employees or subcontractors relating
to this Contract, including but not limited to any liability caused by an accident or other occurrence resulting
in bodily injury, death, sickness or disease to any person(s) or damage or destruction to any property, real or personal, tangible or intangible, (iii) arising from the Engineer's violation of any law (including, without
limitation, immigration laws), (iv) seeking payment for labor or materials purchased or supplied by the
Engineer or its subcontractors in connection with this Contract, (v) any claim that the Engineer or an
employee or subcontractor of the Engineer is an employee of the Town, including but not limited to claims relating to worker's compensation, failure to withhold taxes and the like, or (vi) alleging violation,
misappropriation or infringement of any copyright, trademark, patent, trade secret or other proprietary rights
with respect to the Work or any products or deliverables provided to the Town pursuant to this Contract ("Infringement Claims"). If an Infringement Claim occurs, the Engineer shall either (i) procure for the Town
the right to continue using the affected product or’ service, or (ii) repair or replace the infringing product or
service so that it becomes non-infringing, provided that the performance of the overall product(s) and
service(s) provided to the Town shall not be adversely affected by such replacement or modification. If the Engineer is unable to comply with the preceding sentence within thirty (30) days after the Town is directed
to cease use of a product or service, the Engineer shall promptly refund to the Town all amounts paid for
that product or services paid under this Contract.
14. Intellectual Property
Any information data, instruments, documents, studies, reports or deliverables given to exposed to, or
prepared or assembled by the Engineer under this Contract shall be kept as confidential proprietary
information of the Town and not divulged or made available to any individual or organization without the
prior written approval of the Town. Such information, data, instruments, documents, studies, reports or deliverables will be the sole property of the Town and not the Engineer.
The Engineer shall maintain the right of reuse to any drawings or specifications provided or furnished by
the Engineer. The Town acknowledges that such drawings or specifications are not intended or represented
to be suitable for reuse by the Town or others on extensions of the project or on any other project, and any
such reuse will be without liability to the Engineer.
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All intellectual property, including, but not limited to, patentable inventions, patentable plans, copyrightable
works, mask works, trademarks, service marks, and trade secrets invented, developed, created, or
discovered exclusively and solely in performance of this Contract shall be the property of the Town.
Copyright in and to any copyrightable work, including, but not limited to, copy, art, negatives, photographic
designs, text, software, or documentation created as part of the Engineer's performance of this project shall
vest in the Town. Work of authorship and contributions to works of authorship created by the Engineer’s
performance of this project are hereby agreed to be 'works made for hire' within the meaning of 17 USC 201.
15. Force Majeure
Except as otherwise provided in any environmental laws, rules, regulations or ordinances applicable to the
parties and the services performed under this Contract, neither party 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. Both parties to the Contract 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.
16. Advertising
The Engineer shall not use the existence of this Contract, or the name of the Town of Lillington, as part of
any advertising without the prior written approval of Town. 17. Cancellation
The Town may terminate this Contract at any time and for any reason.
In the event of termination, Engineer shall be entitled to receive just and equitable compensation for costs incurred prior to termination and for the satisfactory work completed as of the date of termination.
Notwithstanding the foregoing, in no event will the total amount due to Engineer under this section exceed
the total amount due Engineer under this Contract. The Engineer shall not be relieved of liability to the
Town for damages sustained by the Town by virtue of any breach of this Contract. Payment of compensation specified in this Contract, its continuation, or any renewal thereof is dependent
upon and subject to the allocation or appropriation of funds to the Town for the purpose set forth in this
Contract.
18. Laws/Safety Standards
The Engineer shall comply with all laws ordinances codes, rules, regulations, safety standards and licensing requirements that are applicable to the conduct of its business including those of Federal, State and local agencies having Jurisdiction and/or authority.
Engineer must comply with North Carolina Occupational Safety and Health Standards for General Industry, 29 CFR 1910. In addition, Engineer shall comply with all applicable occupational health and safety and
environmental rules and regulations. Engineer shall effectively manage their safety and health
responsibilities including: A. Accident Prevention
Prevent injuries and illnesses to their employees on or near their job site. Engineer’s managers and
supervisors shall ensure personnel safety by strict adherence to established safety rules and
procedures that are communicated to Engineer. B. Environmental Protection
Protect the environment on, near, and around their work site by compliance with all applicable
environmental regulations.
C. Employee Education and Training
Provide education and training to all contractors’ employees before they are exposed to potential workplace or other hazards as required by specific OSHA Standards. 19. Applicability of North Carolina Public Records Law
Notwithstanding any other provisions of this Contract, this Contract and all materials submitted to the Town by the Engineer are subject to the public records laws of the State of North Carolina and it is the
responsibility of the Engineer 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 the Town. Engineer understands and agrees that the Town 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. 20. Miscellaneous The Engineer shall be responsible for the proper custody and care of any property furnished or purchased
by the Town for use in connection with the performance of this Contract and will reimburse the Town for the replacement value of its loss or damage in the event such loss is attributable to the negligence or willful
misconduct of the Engineer.
The Engineer 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 with the Town. Engineer 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 Town.
This Contract may be amended only by written agreement of the parties executed by their authorized representatives.
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The Town of Lillington may conduct an audit of Engineer’s financial performance and compliance records
maintained in connection with the operations and services performed under this Contract. In the event of
such an audit, Engineer agrees to provide the Town with reasonable access to Engineer’s employees and
make all such financial performance and compliance records available to the Town. The Town agrees to provide the Engineer with an opportunity to discuss and respond to any findings before a final audit report
is issued. Records shall be made available for three (3) years after the final payment.
21. Right of Audit and Examination of Records
a. The Town may conduct an audit of any services performed and fees paid subject to this Contract.
The Town, 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.
b. The Engineer 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. The Town, 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 contact terms; and conduct such other investigation to substantiate costs
incurred by this Contract.
c. “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 the
Town's sole discretion, relate to matters, rights, duties or obligations of this Contract.
d. 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.
e. Engineer shall provide the Town or its designee reasonable access to facilities and adequate and appropriate workspace for the conduct of audits.
f. 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.
g. The Engineer shall reimburse the Town for any overcharges identified by the audit within ninety (90) days of written notice of the Town’s findings.
22. E - Verify
Engineer shall comply with E-Verify, the federal E-Verify program operated by the United States Department of Homeland Security and other federal agencies, or any successor or equivalent program used to verify the
work authorization of newly hired employees pursuant to federal law and as in accordance with
N.C.G.S. §64-25 et seq. In addition, to the best of Engineer’s knowledge, any subcontractor employed by
Engineer as a part of this contract shall be in compliance with the requirements of E-Verify and N.C.G.S. §64-25 et seq.
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23. Iran Divestment Act Certification Engineer certifies that, as of the date listed below, it is not on the Final Divestment List as created by the State
Treasurer pursuant to N.C.G.S. § 147-86.55, et seq. In compliance with the requirements of the Iran
Divestment Act and N.C.G.S. § 147-86.59, Engineer shall not utilize in the performance of the contract any subcontractor that is identified on the Final Divestment List.
24. Companies Boycotting Israel Divestment Act Certification Engineer certifies that it has not been designated by the North Carolina State Treasurer as a company
engaged in the boycott of Israel pursuant to N.C.G.S. 147-86.81.
25. Incorporation of Documents/Complete Agreement
This Contract, and any documents incorporated below, represent the entire Contract between the parties and suspend all prior oral or written statements, agreements or Contracts.
Specifically incorporated into this Contract are the following attachments, or if not physically attached, are incorporated fully herein by reference:
• Exhibit A – Hourly Rate Schedule
• Certificate of Insurance 26. Adequate Consideration Both parties hereby agree and stipulate that this contract is supported by fair and adequate consideration. 27. Independent Contractor
Engineer shall perform this Agreement as an independent contractor and shall have and maintain complete
control over its employees, agents and operations. Accordingly, Engineer shall be responsible for payment of all Federal, State and Local taxes. Engineer and its agents and employees shall not represent, act, purport to act, or be deemed to be the agent, representative, employee or servant of the Town.
28. Worker’s Compensation Insurance
If required under State or Federal law, Engineer shall provide and maintain worker’s compensation insurance covering the work outlined herein and provide satisfactory proof of same to Client prior to commencement of any work.
29. Drafting of Document and Reliance by Parties
In negotiation, discussion and drafting of this contract, the parties have been advised to seek legal counsel for representation to the extent they desire and have been given the opportunity to do so. The parties warrant, represent and agree that they are not relying on the advice of any other party to this contract as to the legal or other consequences arising out of the negotiation and execution of this contract other than legal
counsel, to the extent they have chosen to consult legal counsel. The parties warrant and agree that this
contract was not induced by fraud, coercion, compulsion or mistake. This contract shall be deemed to have been drafted by both parties and for purposes of interpretation no presumptions shall be made to the contrary.
30. Reading and Signing
The parties hereby further warrant that they have completely read all the terms hereof; that they are competent to sign this contract; that they fully understand the terms of this contract; and that they
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voluntarily accept the terms of this contract.
31. Entire Agreement
The parties hereto warrant and agree that this contract contains the entire agreement between the parties and that the terms of this contract are contractual and not a mere recital. 32. Reserved
33. Dispute Resolution Without waiving the foregoing resolution process discussed in the Article 13 above, if a party hereto believes it has the right to bring a court proceeding or file an action with the court that relates in any way to the matters in controversy addressed by this contract, said proceeding shall be filed and heard in Harnett
County Superior Court and all parties hereby consent and agree to said exclusive jurisdiction and venue. 34. Reserved
35. Waiver Only for Specific Occurrence Any waiver by either party of any provision or condition of this Agreement shall not be construed or deemed to be a waiver of any other provision or condition of this Agreement, nor a waiver of a subsequent breach of the same provision or condition.
36. Waiver of Less Than Strict Performance. Failure to require strict performance of any of the provisions hereof shall not be considered a waiver of future right to demand strict performance with the provisions of this Agreement.
37. No Third Party Beneficiaries
Nothing contained in this Agreement shall create a contractual relationship with or cause of action in favor of a third party against either Party. 38. Reserved
39. Reserved 40. Headings The subject headings of the paragraphs are included for purposes of convenience only and shall not affect
the construction or interpretation of any of its provisions. 41. Authority The undersigned persons hereby verify that they have the actual and apparent authority to enter into this contract and that any and all action necessary to approve this contract has been undertaken and approved
by said entities.
In cases of conflict between this Contract and any of the above incorporated attachments or references, the terms of this Contract shall prevail.
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THIS CONTRACT is entered into this day of *, 20 *
IN WITNESS WHEREOF, the Contractor has executed the foregoing with the signature(s) of its duly
authorized officer(s). under seal, and the Town has executed with the signature of its Town Manager, attested by its (Assistant/Deputy) Clerk, the day and year first above written.
ENGINEER
By:
Title: Vice President Consultant
(If corporate) ATTEST:
By:
Name: Title:
TOWN OF LILLINGTON
By:
Town Manager
ATTEST:
By:
Town Clerk
EXHIBIT A
HOURLY RATE SCHEDULE
Principal in Charge $350.00 per hour
Lead Design Engineer $235.00 per hour
Junior Design Engineer $145.00 per hour
CADD Designer $122.50 per hour
Construction Inspector – Level 3 $110.50 per hour
Construction Inspector – Level 2 $94.00 per hour
Construction Inspector – Level 1 $82.00 per hour
Administrative Staff $80.00 per hour
-1-AGREEMENT FOR ENGINEERING SERVICES BY AND BETWEEN THE
TOWN OF LILLINGTON AND WESTON & SAMPSON ENGINEERS, INC.
THIS AGREEMENT is made this day of , 20____, by and
between TOWN OF LILLINGTON, acting herein by and through its TOWN COUNCIL,
hereinafter called the OWNER and WESTON & SAMPSON ENGINEERS, INC., with offices at
320 Commerce Avenue, Southern Pines, North Carolina 28388, hereinafter called the
ENGINEER.
WITNESSETH, for the consideration hereinafter set forth, the parties hereto agree as follows:
ARTICLE 1 - ENGAGEMENT OF THE ENGINEER AND STANDARD OF CARE 1.1THE OWNER hereby engages the ENGINEER, and the ENGINEER hereby accepts the engagement to perform certain professional engineering services for the Town of
Lillington, 750,000 Gallon Elevated Water Storage Tank, hereinafter called the PROJECT. 1.2The ENGINEER’s services shall be performed in a manner consistent with that degree of skill and care ordinarily exercised by practicing design professionals performing similar services in the same locality, at the same site and under the same or similar circumstances
and conditions. The ENGINEER makes no other representations or warranties, whether
expressed or implied, with respect to the services rendered hereunder.
ARTICLE 2 - SCOPE OF SERVICES 2.1The ENGINEER agrees to perform the following tasks during the “Design Phase” of the PROJECT. 2.1.1 Study Phase: Examine all critical design issues including site location, tank style, overflow
elevation, and hydraulic operation using the Town’s Hydraulic Model. Analyze Present
Worth of estimated future maintenance painting costs by tank style. Provide detailed cost
opinions. Provide summary narrative in “Basis of Design Memorandum.” 2.1.2 Surveying in support of design. 2.1.3 Coordinate sub-consultant Environmental and Geotechnical Investigations. 2.1.4 Secure regulatory approvals including FAA Aeronautical Study, ATC from NCDEQ
Public Water Supply Section, NCDOT Encroachment, Erosion and Sedimentation Plan
Approval from NCDEQ, Division of Land Resources.
-2- 2.1.5 Produce plans, specifications, and contract documents for construction. 2.1.6 Give prompt written notice to OWNER whenever ENGINEER observes or otherwise becomes aware of any development that affects the scope or timing of ENGINEER’s services or any defect or non-conformance of the work of any Contractor(s). 2.2 The ENGINEER agrees to perform the following tasks during the “Bidding Phase” of the PROJECT. 2.2.1 Produce the Advertisement for Bid document. Assist Owner with public advertising requirements per state statute. Place advertisement in Contractor electronic portals including Construct Connect and Dodge Plan Rooms. 2.2.2 Produce and Distribute Bid Packages (Plans, Specifications, and Contract Documents) to Contractors requesting documents. 2.2.3 Issue additional information to bidders as required during the bidding period, which addresses bidders' questions through issuance of addendums to the bid documents. 2.2.4 Attend and direct the Pre-Bid Conference. Produce meeting minutes and distribute as an Addendum to the Planholder’s List. 2.2.5 Attend and direct the bid opening and assist the OWNER: (1) in securing and tabulating bids for the PROJECT; (2) in the review and analysis of the bid results; and (3) in recommending the award of the contract. 2.3 The ENGINEER agrees to perform the following tasks during the “Construction Administration” Phase of the PROJECT. 2.3.1 Prepare formal contract documents for execution by the OWNER and the awarded Contractor, hereinafter referred to as the CONSTRUCTION CONTRACTOR. 2.3.2 Review and process submittals and shop drawings. 2.3.3 Attend and direct the Pre-Construction Conference. Produce conference minutes and distribute to attendees. 2.3.4 Process CONSTRUCTION CONTRACTOR pay applications. 2.3.5 Attend any scheduled Progress Meetings. 2.3.6 Provide periodic critical point construction observation. 2.3.7 Coordinate project closeout with regulatory and funding agencies.
-3- ARTICLE 3 - RESPONSIBILITIES OF THE OWNER The OWNER, without cost to the ENGINEER, shall do the following in a timely manner so as not to delay the services of the ENGINEER: 3.1 Designate in writing a person to act as the OWNER 's representative with respect to work to be performed under this AGREEMENT, such person to have complete authority to transmit instructions, receive information, interpret and define the OWNER’S policies and decisions with respect to materials, equipment elements and systems pertinent to the work covered by this AGREEMENT. 3.2 Through its officials and other employees who have knowledge of pertinent conditions, confer with the ENGINEER regarding both general and special considerations relating to the PROJECT. 3.3 Assist the ENGINEER by placing at the disposal of the ENGINEER, all available information pertinent to the PROJECT including previous reports and any other data relative to design or construction of the PROJECT. 3.4 Pay all application and permit fees associated with approvals and permits from all governmental authorities having jurisdiction over the PROJECT and such approvals and consents from others as may be necessary for completion of the PROJECT. 3.5 Arrange for access to and make all provisions for the ENGINEER to enter upon public and private lands as required for the ENGINEER to perform its work under this AGREEMENT. 3.6 Cooperate with and assist the ENGINEER in all additional work that is mutually agreed upon. 3.7 Pay the ENGINEER for work performed in accordance with the terms specified herein. 3.8 Operate all valves, pumps, instrumentation, and other equipment as required to support the ENGINEER and Contractor personnel in carrying out systems and plant startup and testing operations. 3.9 Provide all criteria and full information as to OWNER’s requirements for the Project, including design objectives and constraints, space, capacity and performance requirements, flexibility and expandability, and any budgetary limitations; and furnish copies of all design and construction standards, which OWNER will require to be included in the Drawings and Specifications. 3.10 Examine all studies, reports, sketches, Drawings, specifications, proposals and other documents presented by ENGINEER, obtain advice of an attorney, insurance counselor and other consultants, as OWNER deems appropriate for such examination, and render in
-4- writing decisions pertaining thereto within a reasonable time so as not to delay the services of the ENGINEER. 3.11 Attend the pre-bid conference, bid opening, pre-construction conference, construction progress and job-related meetings, substantial completion inspections and final payment inspections. 3.12 Give prompt written notice to ENGINEER whenever OWNER observes or otherwise becomes aware of any development that affects the scope or timing of ENGINEER’s services or any defect or non-conformance of the work of any Contractor(s). 3.13 Submit to ENGINEER the proposed language of certifications, affidavits and/or assignments requested of ENGINEER or ENGINEER’s independent contractors and consultants for review and approval at least 14 days prior to execution. OWNER shall not request certifications and/or affidavits that would require expertise, knowledge or services beyond the scope of this AGREEMENT. ARTICLE 4 - TIME OF PROJECT 4.1 The ENGINEER will initiate work under this AGREEMENT following formal acceptance of this AGREEMENT by the OWNER. The ENGINEER agrees to provide services for the estimated duration of work, starting within 10 days of signing this AGREEMENT. The project from start of Design to construction completion is anticipated to take 2 years and 5 months including 1 year and 2 months for design, permitting, bidding and award and 1 year and 3 months for construction. 4.2 If the specific periods of time for services provided under this AGREEMENT are changed through no fault of the ENGINEER, the rates and compensation provided for herein shall be subject to equitable adjustment. 4.3 If ENGINEER’s services are delayed or suspended in whole or in part by the OWNER for more than three months through no fault of the ENGINEER, ENGINEER shall be entitled to an equitable adjustment of the rates and compensation to be paid herein. ARTICLE 5 - PAYMENTS TO THE ENGINEER 5.1 For the “Design Phase” and “Bidding Phase” scope of services as described in Article 2 of this AGREEMENT, the OWNER agrees to pay the ENGINEER the lump sum fee of $225,000.00. Fees for this PROJECT shall be billed monthly as they accrue based upon the services performed as a percent of the total lump sum fee. The OWNER agrees to make payment to the ENGINEER within thirty (30) days of the invoice date. 5.2 For the “Construction Administration Phase” scope of services as described in Article 2 of this AGREEMENT, the OWNER agrees to pay the ENGINEER within 30 days of the invoice date, as charges accrue on a time charged plus expense basis. For this PROJECT,
-5- the rates of the ENGINEER are 2.85 times the cost of salaries of those personnel working on the PROJECT and 1.15 times other direct costs which include transportation, printing and reproduction of plans and reports, telephone charges, postage, computer time, sub- consultant charges such as specialty engineering, soils, surveying, testing of materials, and other identifiable expenses. Compensation shall be payable monthly, as earned, and is estimated at $79,560 total for the “Construction Administration Phase” of the project. The compensation is based on an estimate of 168 hours ($230/hr.) for the Principal Engineer and 248 hours ($165/hr.) for the Project Engineer. 5.3 The ENGINEER will pay the Environmental and Geotechnical sub-consultant fees and invoice the OWNER for reimbursement. The estimated cumulative amount for this work is $20,000.00. 5.4 If the OWNER fails to make any payment due the ENGINEER for services and expenses within thirty (30) days after receipt of the ENGINEER'S statement therefore, the ENGINEER may, after giving seven (7) days' written notice to the OWNER, suspend services under this AGREEMENT. Unless the ENGINEER receives payment within seven (7) days of the date of the notice, the suspension shall take effect without further notice. In the event of a suspension of services, the ENGINEER shall have no liability to the OWNER for delay or damage caused the OWNER because of such suspension of services. ARTICLE 5A – CREDIT CARD PAYMENTS 5A.1 Credit cards shall not be allowed as a payment method. ARTICLE 6 - INSURANCE 6.1 General Liability Insurance The ENGINEER shall secure and maintain, for the duration of this PROJECT, the following General Liability Insurance policy or policies at no cost to the OWNER and provide proof of same to Owner within 48 hours of a request for same. With respect to the operations the ENGINEER performs, the ENGINEER shall carry Commercial General Liability Insurance for bodily injury, death, and property damage in the amount of $1,000,000 per occurrence and $2,000,000 in the aggregate. 6.2 Automobile Liability Insurance The ENGINEER shall secure and maintain, for the duration of this PROJECT, Automobile Liability Insurance covering the operation of all motor vehicles, including those hired or borrowed, used by the ENGINEER in connection with this AGREEMENT, in the amount of $1,000,000 combined single limit per accident and provide proof of same to Owner within 48 hours of a request for same.
-6-6.3Umbrella Liability Insurance In addition to the above-mentioned coverage, the ENGINEER shall carry a minimum of
One Million Dollar ($1,000,000) umbrella liability policy for the duration of the PROJECT
and provide proof of same to Owner within 48 hours of a request for same. 6.4Professional Services Liability Insurance The ENGINEER shall secure, at its own expense, a Professional Services Liability
Insurance policy with a limit of $3,000,000 per claim and in the aggregate, and maintain
such policy for the duration of the PROJECT; and provide proof of same to Owner within
48 hours of a request for same.. 6.5Workers Compensation Coverage 6.5.1 The ENGINEER shall maintain statutory Worker’s Compensation insurance coverage for all of its employees at the PROJECT as required by the State of North Carolina and provide proof of same to Owner within 48 hours of a request for same.. 6.5.2 The OWNER shall maintain statutory Worker’s Compensation insurance coverage
for all of its employees at the PROJECT as required by the State of North Carolina and provide proof of same to Owner within 48 hours of a request for same. 6.6Additional Insured OWNER shall be named an additional insured for insurance coverage included in Articles
6.1, 6.2 and 6.3 only.
ARTICLE 7 - LIMITATION OF LIABILITY AND INDEMNIFICATION 7.1To the fullest extent permitted by law, the total liability in the aggregate, of ENGINEER
and its officers, directors, employees, agents, and independent professional associates, and
any of them, to the OWNER and any one claiming by, through or under OWNER, for any
and all injuries, claims, losses, expenses, or damages whatsoever arising out of or in any
way related to ENGINEER’S services, the project, or this AGREEMENT, from any cause
or causes whatsoever, including but not limited to, the negligence, errors, omissions, strict
liability, breach of contract, misrepresentation, or breach of warranty of ENGINEER or its
officers, directors, employees, agents or independent professional associates, or any of
them, and any causes arising from or related to the COVID-19 pandemic, shall not exceed the total amount recoverable from the available limits of the insurance identified in Article 6 except for claims where there is either no coverage or coverage of less than $3 million dollars ($3,000,000.00). Except as may be required by an insurance policy, ENGINEER
shall have no upfront duty to defend the OWNER but shall reimburse defense costs of the
OWNER to the same extent of its indemnity obligation herein.
-7- 7.2 To the fullest extent permitted by law, and subject to the limitation of liability set forth in 7.1, the ENGINEER agrees to indemnify and hold harmless the OWNER and its officers, directors, employees, agents, and independent professional associates, and any of them, from any claims, losses, damages or expense (including reasonable attorneys’ fees) arising out of the death of, injuries, or damages to any person, or damage or destruction of any property, in connection with the ENGINEER’S services under this AGREEMENT to the extent caused by the negligent acts, errors, or omissions of the ENGINEER or its officers, directors, employees, agents or independent professional associates, or any of them. 7.3 Hazardous Waste Indemnifications 7.3.1 The ENGINEER and its consultants shall have no responsibility for the discovery, presence, handling, removal or disposal of, or exposure of persons to, hazardous waste or viruses, including COVID-19, in any form at the PROJECT site. Accordingly, the OWNER hereby agrees to bring no claim for negligence, breach of contract, strict liability, indemnity, contribution or otherwise against the ENGINEER, its principals, employees, agents or consultants if such claim in any way arises from such services. The OWNER further agrees to defend, indemnify and hold the ENGINEER and its consultants and their principals, employees and agents harmless from and against any claims, demands, loss or damage (including reasonable attorneys' fees) sustained by any person or entity arising from such services or circumstances. The ENGINEER shall not be liable for any damages or injuries, of any nature whatsoever, due to any delay or suspension in the performance of its services caused by or arising out of the discovery of hazardous substances or pollutants at the PROJECT site or exposure of any parties to the COVID-19 virus unless the same is caused by ENGINEER or its agents, employees, subcontractors or independent contractors. 7.3.2 The OWNER hereby warrants that, if it knows or has any reason to assume or suspect that hazardous materials, including materials or persons with viral contamination, may exist at the PROJECT site, it has so informed the ENGINEER. The OWNER also warrants that it has done its best to inform the ENGINEER of such known or suspected hazardous materials' type, quantity and location. 7.3.3 If, in the performance of the work, hazardous materials are encountered and are judged by the ENGINEER to be an imminent threat to on-site personnel and/or the general public, the ENGINEER shall immediately notify OWNER and take all steps immediately available which are, in its judgment, prudent and necessary to mitigate the existing threat unless and until OWNER directs otherwise. The OWNER agrees to compensate the ENGINEER for any time spent or expenses incurred by the ENGINEER to mitigate the threat, in accordance with the ENGINEER’S prevailing fee schedule and expense reimbursement policy. 7.3.4 The OWNER recognizes that special risks occur whenever engineering or related disciplines are applied to identify subsurface conditions. Even a comprehensive
-8- sampling and testing program, implemented with appropriate equipment and experience with personnel under the direction of a trained professional who functions in accordance with the prevailing standard of care may fail to detect certain hidden conditions. For similar reasons, actual environmental, geological, and technical conditions that the ENGINEER properly inferred to exist between sampling points may differ significantly from those that actually exist. The passage of time also must be considered, and the OWNER recognizes that due to natural occurrences or direct or indirect human intervention at the Site or distance from it, actual conditions may quickly change. Subsurface sampling may result in unavoidable contamination of certain subsurface areas, as when a probe or boring device moves through a contaminated area, linking it to an aquifer, underground stream or other hydrous body not previously contaminated and capable of spreading hazardous materials off-site and OWNER accepts that risk. Because nothing can be done to eliminate the risk of such an occurrence, and because subsurface sampling is a necessary aspect of the work which the ENGINEER will perform on the OWNER’S behalf, the OWNER waives any claim against the ENGINEER and agrees to defend, indemnify and hold the ENGINEER harmless from any claim or liability for injury or loss which may arise as a result of alleged cross-contamination caused by sampling unless same is due to the negligence of ENGINEER or its agents, employees, subcontractors or independent contractors. The OWNER further agrees to compensate the ENGINEER for any time spent or expenses incurred by the ENGINEER in defense of any such claim, in accordance with the ENGINEER’S prevailing fee schedule and expense reimbursement policy. 7.3.5 The ENGINEER will hold soil samples collected during the subsurface investigation for three [3] months at its office after the submission of Geotechnical Engineering Report to the OWNER. After the three-month period, the ENGINEER will dispose of the soil samples unless requested otherwise by the OWNER in writing. At the OWNER’S request, ENGINEER will either [1] deliver the samples to the OWNER for the OWNER’S use or [2] continue to store the samples for an agreed upon duration. ARTICLE 8 - EXTENSION OF SERVICES 8.1 Additional Work In the event the ENGINEER, as requested in writing by the OWNER, is to make investigations or reports on matters not covered by this AGREEMENT, or is to perform other services not included herein, additional compensation shall be paid the ENGINEER as is mutually agreed upon by and between the OWNER and the ENGINEER. Such services shall be incorporated into written amendments to this AGREEMENT, or into a new written AGREEMENT.
-9- 8.2 Changes in Work The OWNER, from time to time, may require changes or extensions in the Scope of Services to be performed hereunder. Such changes or extensions, including any increase or decrease in the amount of compensation, to be mutually agreed upon in writing by and between the OWNER and the ENGINEER, shall be incorporated into written amendments to this AGREEMENT. 8.3 Litigation Support Services In the event the ENGINEER is to prepare for or appear in any litigation on behalf of the OWNER, additional compensation shall be paid to the ENGINEER as agreed upon in writing by OWNER and ENGINEER. The OWNER agrees to compensate the ENGINEER for time spent and expenses incurred in preparation for and attendance at meetings and appearances, including depositions except where otherwise provided by law. This shall include appearances before the OWNER’S attorney and before the attorney of any other party to the litigation, in addition to all other support services as requested by the OWNER. Additional compensation shall be paid the ENGINEER as is mutually agreed upon in writing by and between the OWNER and the ENGINEER. Such services shall be incorporated into written amendments to this AGREEMENT, or into a new written AGREEMENT. 8.4 Hazardous Materials Encountered If, in the performance of the work, hazardous materials are encountered and are judged by the ENGINEER to be an imminent threat to on-site personnel and/or the general public, the ENGINEER shall immediately inform the OWNER and also inform the Local and State Emergency Personnel of the release where required, necessary or appropriate. The OWNER agrees to compensate the ENGINEER for any time spent or expenses incurred by the ENGINEER to mitigate the threat unless or until instructed otherwise by OWNER, in accordance with the ENGINEER’S prevailing fee schedule and expense reimbursement policy. Such services shall be incorporated into written amendments to this AGREEMENT or into a new written AGREEMENT. ARTICLE 9 - OWNERSHIP AND USE OF DOCUMENTS 9.1 The OWNER shall retain ownership of the documents submitted to the OWNER by the ENGINEER pursuant to this AGREEMENT. However, such documents are not intended or represented to be suitable for reuse by the OWNER or others on extensions of the PROJECT or on any other PROJECT. Any reuse or adaptation by the OWNER without written verification by the ENGINEER shall be at the OWNER’S sole risk and without liability or legal exposure to the ENGINEER or to the ENGINEER'S independent sub- consultants, and the OWNER shall indemnify and hold harmless the ENGINEER and the ENGINEER'S sub-consultants from all claims, damages, losses and expenses, including
-10- reasonable attorneys' fees arising out of or resulting therefrom. Any verification or adaptation performed by the ENGINEER shall entitle the ENGINEER to further compensation at rates to be agreed upon by the OWNER and the ENGINEER. ARTICLE 10 – TERMINATION 10.1 The obligation to provide further services under this AGREEMENT may be terminated by either party upon not less than ten (10) days' written notice in the event of substantial failure by the other party to perform in accordance with the terms hereof through no fault of the terminating party. Further, OWNER may terminate the AGREEMEN without cause, but shall remain obligated to ENGINEER as noted in this subsection. 10.2 If the PROJECT is suspended or abandoned in whole or in part for more than three (3) months, the ENGINEER shall be compensated for all services performed prior to receipt of written notice from the OWNER of such suspension or abandonment, together with other direct costs then due and all Termination Expenses as defined in Article 10.4. If the PROJECT is resumed after being suspended for more than three (3) months; the ENGINEER'S compensation shall be equitably adjusted. 10.3 In the event of termination by the OWNER under Article 10.1, the ENGINEER will be paid a percentage of the lump sum fee for the Design and Bidding Phases based on work completed on the PROJECT through the completion of services necessary to affect termination, in accordance with the provisions of Article 5 of this AGREEMENT. 10.4 In the event of termination by the ENGINEER under Article 10.1, or termination by the OWNER for the OWNER’S convenience, the ENGINEER will be paid a percentage of the lump sum fee for the Design and Bidding Phases based on work completed on the PROJECT through the completion of services necessary to affect termination, plus termination expenses. Payment for services will be in accordance with the provisions of Article 5 of this AGREEMENT. “Termination expenses” means additional costs of services and other direct costs directly attributable to termination, which shall be an additional amount computed as the costs the ENGINEER reasonably incurs relating to commitments which had become firm before the termination. 10.5 In the event of termination by the OWNER under Article 10.1, the ENGINEER shall be paid for all unpaid services and unpaid other direct costs for the Construction Administration Phase incurred to the date of receipt of written notice of termination, including sub-consultants, and for the services necessary to affect termination, in accordance with the provisions of Article 5 of this AGREEMENT. 10.6 In the event of termination by the ENGINEER under Article 10.1, or termination by the OWNER for the OWNER’S convenience, the ENGINEER shall be paid for all unpaid services and unpaid other direct costs for the Construction Administration Phase incurred to the date of receipt of written notice of termination, including sub-consultants, for the services necessary to affect termination, plus termination expenses. Payment for services
-11- will be in accordance with the provisions of Article 5 of this AGREEMENT. “Termination expenses” means additional costs of services directly attributable to termination, which shall include an additional amount computed as the costs the ENGINEER reasonably incurs relating to commitments, which had become firm before the termination. ARTICLE 11 - GENERAL PROVISIONS 11.1 Precedence The terms and conditions in this AGREEMENT shall take precedence over any inconsistent or contradictory provisions contained in any proposal, contract, purchase order, requisition, notice to proceed, or like document regarding the ENGINEER’S services. 11.2 Severability If any of the terms and conditions in this AGREEMENT shall be finally determined to be invalid or unenforceable in whole or part, the remaining provisions hereof shall remain in full force and effect and be binding upon the parties hereto. The parties agree to reform this AGREEMENT to replace any such invalid or unenforceable provision with a valid enforceable provision that comes as close as possible to the intention of the stricken provision. In the event the parties cannot reach an agreement as to the reformation, the parties’ agreement to select a neutral arbitrator who shall, after consultation with the parties, reform the contract to remove any offending language and keep the intent of the agreement. In the event the parties cannot agree on a neutral arbitrator, either party may apply to the Superior Court in Harnett County who, after hearing from the parties, shall appoint same. 11.3 Subrogation The OWNER and the ENGINEER waive all rights against each other and against the contractors, consultants, agents and employees of the other for damages, but only to the extent covered by any property or other insurance in effect whether during or after the PROJECT. The OWNER and the ENGINEER shall each require similar waivers from their contractors, consultants and agents. 11.4 Sole Remedy Notwithstanding anything to the contrary contained herein, OWNER and ENGINEER agree that their sole and exclusive claim, demand, suit, judgment or remedy against each other shall be asserted against each other’s corporate entity and not against each other’s shareholders, A/E’s, directors, officers or employees.
-12- 11.5 Third Party Obligations Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the OWNER or the ENGINEER. 11.6 Statute of Limitations Except as for latent negligence or damages, causes of action between the parties to this Agreement pertaining to acts or failures to act shall be deemed to have accrued and the applicable statutes of limitations shall commence to run not later than either the date of Substantial Completion for acts or failures to act occurring prior to Substantial Completion or the date of issuance of the final Certificate for Payment for acts or failures to acts occurring after Substantial Completion. Except for latent claims, in no event shall such statutes of limitations commence to run any later than the date when the ENGINEER’s services are substantially completed. 11.7 Engineer’s Liability for Construction Contract Award Recommendations In consideration of the ENGINEER’S performance of its obligation to review and evaluate the various bidders and bid submissions and to make recommendations to the OWNER regarding the award of the construction contract, the OWNER agrees to hold harmless and indemnify the ENGINEER for all costs, expenses, damages and attorneys' fees (the "indemnification obligations") which are incurred by the ENGINEER as a result of any claims, allegations, administrative or court proceedings, arising out of or relating to any bid protest or such other action taken by any person or entity with respect to the review and evaluation of the bidders and bid submissions and/or recommendations concerning the award of the construction contract. This paragraph shall not apply in circumstances in which ENGINEER actions, opinions or recommendations were negligently or intentionally incorrect or misleading. 11.8 Project Requirements The ENGINEER shall exercise usual and customary professional care in its efforts to comply with all applicable federal, state and local laws and regulations. 11.9 Limitation of Engineer’s Responsibilities During Construction The ENGINEER shall not be responsible for the acts or omissions of any Contractor(s), or of any subcontractor(s) or supplier(s), or any of Contractor(s)’ or subcontractor(s)’ or supplier(s)’ agents or employees or any other persons, except ENGINEER’s own employees, agents or independent contractors, at the site or otherwise furnishing or performing Contractor(s)’ work. 11.10 Engineer Not Responsible for Accuracy of Contractor-Supplied Information Used in Record Drawings
-13- The ENGINEER shall not be responsible for any errors in or omissions in the information provided by Contractor that is incorporated in the record drawings or other record documents. ENGINEER shall not check the Contractor’s record drawings information unless included in the scope of the ENGINEER’s services contained in Article 2, and then ENGINEER will only be responsible for checking what is not hidden behind walls, in the floor or roof slabs, etc. 11.11 Opinions of Probable Construction Cost The ENGINEER makes opinions of probable costs using its best judgement as an experienced and qualified professional engineer generally familiar with the construction industry. ENGINEER has no control over the cost of labor, materials, equipment or services furnished by others, or the Contractor’s methods of determining prices, or competitive bidding or market conditions or when the Project will be constructed. ENGINEER cannot and does not guarantee that Contractor’s bids or actual construction costs will not vary from opinions of probable construction cost prepared by ENGINEER. If OWNER desires greater assurance as to probable construction cost, OWNER shall employ an independent cost estimator. 11.12 Changed Conditions If concealed or unknown conditions that affect the performances of the services are encountered, that are not ordinarily found to exist or that differ materially from those generally recognized as inherent in the services of the character provided for under this AGREEMENT or which could not have reasonably been anticipated, notice by the observing party shall be promptly given to the other party and, if possible before the conditions are disturbed. If the ENGINEER makes the claim, and by the written consent of both parties, ENGINEER’s schedule and compensation shall be equitably adjusted to reflect additions that result from such changed conditions. 11.13 Force Majeure If delays or failures of performance of the ENGINEER are caused by occurrences beyond the reasonable control of the ENGINEER, the ENGINEER shall not be in default of this AGREEMENT. Said occurrences shall include Acts of God or the public enemy; expropriation or confiscation; compliance with any quarantine or other order of any governmental authority; pandemic; epidemic; public health crisis; labor or materials shortage; changes in law; act of war, rebellion, terrorism or sabotage or damage resulting therefrom; fires, floods, explosions, accidents, riots, strikes or other concerted acts of workmen, whether direct or indirect; delays in permitting; OWNER’s failure to provide data in OWNER’s possession or provide necessary comments in connection with any required reports prepared by the ENGINEER, or any other causes which are beyond the reasonable control of the ENGINEER. ENGINEER’s scheduled completion date shall be adjusted to account for any force majeure delay and ENGINEER shall be compensated for all costs incurred in connection with or arising from a force majeure event or in the exercise
-14- of reasonable diligence to avoid or mitigate a force majeure event. ARTICLE 12 – DISCLOSURE RIGHTS 12.1 OWNER agrees the ENGINEER has the authority to use its name as a client and a general description of the project as a reference for other prospective clients. ARTICLE 13 – NOTICES Any notice required under this Agreement will be in writing, addressed to the appropriate party at the address that appears below, and given personally, by registered or certified mail, return receipt requested, by facsimile, or by a nationally recognized overnight courier service. All notices shall be effective upon the date of receipt. Notices shall be provided to: Owner: Engineer: Name Name: J. Charles McGougan, P.E. Title Title: Principal Engineer Address Address: 320 Commerce Ave., Suite 3 Southern Pines, NC 28388 ARTICLE 14 – CONTROLLING LAW This Agreement is to be governed by the law of the State of North Carolina. ARTICLE 15 - OTHER 15.1 Adequate Consideration Both parties hereby agree and stipulate that this contract is supported by fair and adequate consideration. 15.2 Independent Contractor Engineer shall perform this Agreement as an independent contractor and shall have and maintain complete control over its employees, agents and operations. Accordingly, Engineer shall be responsible for payment of all Federal, State and Local taxes. Engineer and its agents and employees shall not represent, act, purport to act, or be deemed to be the agent, representative, employee or servant of the Owner. 15.3 Drafting of Document and Reliance by Parties In negotiation, discussion and drafting of this contract, the parties have been advised to seek legal counsel for representation to the extent they desire and have been given the opportunity
-15- to do so. The parties warrant, represent and agree that they are not relying on the advice of any other party to this contract as to the legal or other consequences arising out of the negotiation and execution of this contract other than legal counsel to the extent they have chosen to consult legal counsel. The parties warrant and agree that this contract was not induced by fraud, coercion, compulsion or mistake. This contract shall be deemed to have been drafted by both parties and for purposes of interpretation no presumptions shall be made to the contrary. 15.4 Reading and Signing The parties hereby further warrant that they have completely read all the terms hereof; that they are competent to sign this contract; that they fully understand the terms of this contract; and that they voluntarily accept the terms of this contract. 15.5 Entire Agreement The parties hereto warrant and agree that this contract contains the entire agreement between the parties and that the terms of this contract are contractual and not a mere recital. 15.6 Governing Law and Consent to Jurisdiction and Venue The parties warrant and agree that this Agreement has been executed in the State of North Carolina and shall be subject to, and construed in accordance with, the laws of the State of North Carolina. Any and all actions relating in any way to this contract shall be brought in the General Courts of Justice in the County of Harnett, State of North Carolina in the Superior Court Division. 15.7 Indemnification/Hold Harmless To the fullest extent allowable under North Carolina law, ENGINEER hereby agrees to indemnify, hold harmless and defend OWNER from any and all actions which may arise as a result of any damages or claims for damages against ENGINEER or OWNER by any person or entity, including other parties hereto, arising from this contract or performance of the services as called for herein. 15.8 Awareness of Hazards ENGINEER represents that it understands the currently known hazards to persons, property and the environment resulting from the services called for in this contract. ENGINEER further represents that it will perform all services under this Agreement in a safe, efficient and lawful manner, using industry-accepted practices and methods. 15.9 Waiver Only for Specific Occurrence Any waiver by either party of any provision or condition of this Agreement shall not be
-16- construed or deemed to be a waiver of any other provision or condition of this Agreement, nor
a waiver of a subsequent breach of the same provision or condition.
15.10 Waiver of Less Than Strict Performance Failure to require strict performance of any of the provisions hereof shall not be considered a waiver of future right to demand strict performance with the provisions of this Agreement.
15.11 Guarantee It is understood by all parties that the OWNER has full control over the manner of
performance of the services called for in the contract. ENGINEER represents that it is
familiar with this type of work and hereby provides a guarantee that, absent unforeseen
circumstances, the services will be performed to reasonably accepted standards within their
profession.
15.12 Collection Costs and Reasonable Attorney Fees In the event either party is caused to engage the services of an attorney to enforce the terms of this Agreement, the prevailing party shall be entitled to recover the costs of such
enforcement including, but not limited to, reasonable attorney’s fees, court costs and other
fees and costs reasonably incurred.
15.13 Headings The subject headings of the paragraphs are included for purposes of convenience only and
shall not affect the construction or interpretation of any of its provisions.
15.14 Authority The undersigned persons hereby verify that they have the actual and apparent authority to enter into this contract and that any and all action necessary to approve this contract has been undertaken and approved by said entities.
-17- IN WITNESS WHEREOF, the parties hereto have executed this AGREEMENT the day and year
first above written.
ACCEPTED FOR: TOWN OF LILLINGTON
OF WESTON & SAMPSON ENGINEERS, INC. By Its By: Joseph W. McGougan, P.E. DATE DATE (Note: Following information required for municipal clients.)
CERTIFICATION OF AVAILABLE FUNDS
Certification is herewith given that funds are available for payments required by the terms of this AGREEMENT. By: Date: OWNER Accountant
APPROVED AS TO FORM: By: Date: OWNER Counsel
A TRUE COPY, ATTEST: By: Date: OWNER Clerk
OWNER’S North Carolina Sales and Use Tax Certificate Exemption Number Document1