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    Minutes of August 20, 2007 Board of Commissioners' Regular Meeting (adopted)

WAKE COUNTY BOARD OF COMMISSIONERS

AUGUST 20, 2007


The Wake County Board of Commissioners met in regular session Monday, August

20, 2007 at 2:00 p.m. in the Commissioners’ Room, 7th Floor, Wake County Courthouse,

Raleigh, North Carolina. Members present were Commissioners Lindy Brown, Joe Bryan,

Paul Coble, Kenneth M. Gardner, Betty Lou Ward, Harold H. Webb, and Chairman

Tony Gurley.

R-2007-31

RESOLUTION REQUESTING REALLOCATION OF FUNDING
CIP 2006 CAPITAL BUILDING PROJECTS

WHEREAS, the Wake County Board of Education is engaged in a Long-Range Building Program, and

WHEREAS, the Wake County Board of Education has approved the projects listed below as part of its CIP 2006 Building Programs, and contracts have been or will be let for planning and design services.

NOW, THEREFORE, BE IT HEREBY RESOLVED, that the Wake County Board of Education requests that the Wake County Board of Commissioners reallocate funds as follows:

FROM
AMOUNT
TO
AMOUNT
CIP 2006 Building Program
River Bend Elementary
$1,395,474
CIP 2006 Building Program Reserve
$6,544,640
Lynn Road Elementary
$3,102,766
Banks Road Elementary
$1,110,364
East Millbrook Middle
$939,036
CIP 2006 Total
$6,544,640
CIP 2006 Total
$6,544,640

Resolved this 5th day of June 2007.WAKE COUNTY BOARD OF EDUCATION



By: _________________________________
Patti Head, Chair

Attest: _____________________________
Del Burns, Ed.D., Secretary




RESOLUTION REQUESTING REALLOCATION OF FUNDING
CIP 2006 CAPITAL BUILDING PROJECTS

WHEREAS, the Wake County Board of Education is engaged in a Long-Range Building Program, and

WHEREAS, the Wake County Board of Education has approved the projects listed below as part of its CIP 2006 Building Program, and contracts have been or will be let for planning and design services.

NOW, THEREFORE, BE IT HEREBY RESOLVED, that the Wake County Board of Education requests that the Wake County Board of Commissioners reallocate funds as follows:

FROM
AMOUNT
TO
AMOUNT
CIP 2006 Building Program
Elementary E-28
$2,000,000
Elementary E-21
$2,000,000
CIP 2006 Total
$2,000,000
CIP 2006 Total
$2,000,000

Resolved this 17th day of June 2007.WAKE COUNTY BOARD OF EDUCATION

By: _________________________________
Rosa Gill, Chair
Attest: ______________________________
Del Burns, Ed.D., Secretary

RESOLUTION R-2007-XX

APPROVING REALLOCATION OF CIP 2006 FUNDING
FOR SCHOOL CAPITAL BUILDING PROJECTS

WHEREAS, the Wake County Board of Education is engaged in a Long Range Building Program; and,

WHEREAS, the Wake County Board of Education has duly requested, through a resolution adopted on June 5, 2007 and July 17, 2007, that the Board of Commissioners approve the reallocation of $8,544,640 within the CIP 2006 Building Program, and

NOW, THEREFORE, BE IT RESOLVED that the Wake County Board of Commissioners hereby appropriates $8,544,640, as listed below:
CIP 2006 APPROPRIATION & REALLOCATION

FROM
AMOUNT
TO
AMOUNT
CIP 2006 Building Program
E-28
$2,000,000
E-21
$2,000,000
River Bend (E-19)
1,395,474
Reserve
6,544,640
Lynn Road Elementary
3,102,766
Banks Road Elementary
1,110,364
East Millbrook Elementary
936,036
Total
$8,544,640
Total
$8,544,640
Adopted this 20th day of August 2007.


******************

SUPPLEMENTAL SALES TAX AGREEMENT WITH THE
WAKE COUNTY BOARD OF EDUCATION REGARDING PURCHASE OF
EQUIPMENT, MATERIALS AND SUPPLIES

Mr. Scott Warren said this agreement was a supplement to the original agreement which was approved by both boards in March 2007. This agreement includes equipment, materials and supplies in order to make the County eligible for the sales tax refund. Following that, the equipment, materials and supplies will go to the Wake County Public School System.

Chairman Gurley asked the effect of the original agreement not being implemented. Mr. Cooke reported around $400,000 had been lost due to the delay in implementing the sales tax reimbursement agreement between Wake County and Wake County Public Schools.

Upon motion by Commissioner Bryan, seconded by Commissioner Webb, the Board voted unanimously to adopt the amendment to the original sales tax agreement between the Wake County Board of Commissioners and Wake County Public Schools System and subject to final approval of language in the agreement by the County Attorney.

Commissioner Bryan stated it seemed unusual that all 100 counties are having to go through this process. He will be looking into this as recently elected Second Vice President of the North Carolina Association of County Commissioners.

NORTH CAROLINA
WAKE COUNTY AGREEMENT

THIS AGREEMENT (“Agreement”) is made and entered into this ____ day of ______________ 2007 by and between Wake County (“the County Commissioners”) and the Wake County Board of Education, a county board of education organized and existing pursuant to N.C. Gen. Stat. 115C et seq. (“the School Board”). This agreement supplements the sales tax agreement approved by the parties in March of 2007.

WHEREAS, the Wake County Public School System has substantial need for new equipment, materials and supplies;

WHEREAS, it is the intent of the County Commissioners to assist the School Board in obtaining these equipment, materials and supplies within the constraints imposed by limited financial resources;

WHEREAS, the County Commissioners are authorized by legislation to reclaim sales and use taxes paid to the State of North Carolina and to acquire personal property for the use by the School Board;

WHEREAS, it is currently in the best interest of the School Board and the County Commissioners for identified purchases of school equipment, materials and supplies to be purchased in the name of the County in order to enable the County to reclaim sales and use taxes paid to the various vendors;

WHEREAS, the County Commissioners desire to designate the School Board as its agent to carry out the purchases of identified equipment, materials and supplies, and the School Board is willing to accept the appointment pursuant to the terms of this Agreement;

WHEREAS, the County Commissioners intend to claim the sales and use tax refunds from the purchases of equipment, materials and supplies, and appropriate the same to the School Board as supplemental funding for school system needs;

WHEREAS, the County Commissioners shall transfer ownership of the equipment, materials and supplies to the School Board as provided herein;

WHEREAS, the School Board and the County Commissioners are authorized to enter into an interlocal agreement and to establish a joint agency pursuant to N.C. Gen. Stat. 160A-461 et seq.;

NOW, THEREFORE, for and in consideration of the mutual promises contained herein, the parties agree as follows:

1. Agency Created. The County Commissioners appoint the School Board as its sole agent to carry out any purchases of equipment, materials and supplies undertaken pursuant to this Agreement. The School Board, as the County Commissioners’ agent, assumes all of the County Commissioners’ rights, duties, and responsibilities regarding any purchases undertaken pursuant to this Agreement. Notwithstanding previous arrangements, this Agency shall govern all purchases of equipment, materials and supplies undertaken pursuant to this Agreement.

a. Negotiate and Execute Contracts. The School Board, as agent for the County Commissioners, shall have sole and exclusive authority to negotiate and execute on behalf of the County all contracts and purchase orders for the purchase of equipment, materials and supplies undertaken pursuant to this Agreement, as long as the funds to be expended pursuant to those contracts and purchase orders are within the budgeted funds allocated to the School Board or from funds appropriated by the County for purchases.

b. Receipt of Purchases. The School Board, as agent for the County Commissioners, shall be solely responsible for purchasing equipment, materials and supplies, and the School Board shall have sole and exclusive right to take possession of and use all items purchased pursuant to this Agreement.

c. Administer Contracts. The School Board, as agent for the County Commissioners, shall procure the purchase of equipment, materials and supplies in accordance with G.S. 143-129 and any other applicable statutes, rules or regulations. The Board shall issue any required purchase orders and preaudit certifications for the identified purchases. The School Board shall have authority to approve and enter into any change orders for any and all identified purchases as long as the funds are within the budgeted funds allocated to the School Board or from funds appropriated by the County for purchases. The School Board shall have exclusive control of the content of any purchase contracts. The School Board shall act as the County Commissioners’ designated agent for the procurement of the identified equipment, materials and supplies, and all contracts shall comply with the public procurement laws and any other State laws applicable to either the School Board or the County Commissioners. The School Board shall ensure that all vendors provide applicable sales and use tax certificates. The School Board shall approve all requests for payment and pay the vendors.

d. Enforce Contracts. The School Board shall have the right to enforce in its own name or in the County Commissioners’ name such purchase orders, contracts, or change orders entered into in the County Commissioners’ name or the School Board’s name for the identified purchases.

e. Pre-Audit Certification. The County Commissioners hereby authorize the Finance Officer of the School Board to act as the Finance Officer of the County Commissioners for the limited purpose of pre-auditing as required by State law, on behalf of the County Commissioners, contracts, purchase orders and change orders executed pursuant to this Agreement.
.
2. Implementation of Agreement. The County Manager and Superintendent or their designees shall establish policies and procedures to implement this Agreement not inconsistent with the terms of this Agreement.

3. Purchases Affected. The purchases to which this Agreement applies shall be identified by written notice from the Superintendent to the County Manager. Said notice shall identify the items purchased or to be purchased and the cost of the items.

4. Ownership of Personal Property. The equipment, materials and supplies purchased pursuant to this Agreement shall be purchased in the County’s name. The County shall maintain ownership of the equipment, materials and supplies until each item is paid in full by the School Board on behalf of the County. After the County has submitted all required sales tax refund documentation for the equipment, materials and supplies purchased to the State, ownership of those items shall immediately transfer to and vest in the School Board without any additional action required by either party. The School Board shall have the right to notify any vendors of the change in ownership and to direct that all warranty, service or other obligations be transferred to the School Board.

5. Obligations and Rights of the School Board.

a. Board as Agent. The School Board shall act as the County’s sole agent for the purchases of equipment, materials and supplies as provided in Section 1 of this Agreement.

b. Insurance. The School Board shall ensure that the equipment, materials and supplies are insured against loss to the same degree that they would insure the items against loss if purchased in the School Board’s name. Notwithstanding any provision of this Agreement, the School Board shall retain the sole power to control and direct the application and distribution of insurance proceeds applicable to affected personal property pursuant to this Agreement.

c. Use of Personal Property. During the term of this Agreement, the School Board shall have the sole and exclusive right to possess and use any equipment, materials or supplies purchased pursuant to this Agreement.

d. Indemnity. To the extent allowed by law, the School Board shall indemnify, defend and hold harmless the County Commissioners from and against all claims, suits, actions and proceedings whatsoever which may be brought or instituted on account of, growing out of, occurring from, incident to or resulting from, directly or indirectly any and all damages, claims or losses arising from any injuries or damages (including without limitation, death) to persons or property arising out of the purchase of equipment, materials and supplies pursuant to this Agreement, and the negligent or willful acts and omissions of the School Board and those for whom it is legally liable, and all losses, costs, damages and expenses arising out of this Agreement (including, without limitation, reasonable attorneys’ fees), unless and to the extent such injuries or damages (including, without limitation, death) result from, or are claimed to have resulted from the negligent acts or omissions of the County Commissioners or those for whom the County Commissioners are legally liable. School Board shall assume, on behalf of the County Commissioners, and conduct with due diligence and in good faith, the defense of all such claims, suits, actions and proceedings against the County Commissioners whether or not the School Board is joined therein, even if such claims, suits, actions or proceedings be groundless, false or fraudulent, and School Board shall bear the costs of all judgments and settlements in connection therewith; provided, however, the County Commissioners may defend or participate in the defense of any or all of such claims, suits, actions or proceedings.

6. Obligations and Rights of the County.

a. Right to Inspect. The County Commissioners and their representatives and agents shall have the right to review and inspect any contracts, change orders or other contract amendments approved by the School Board or its authorized employees pursuant to this Agreement.

b. Indemnity. To the extent allowed by law, County Commissioners shall indemnify, defend and hold harmless the School Board from and against all claims, suits, actions and proceedings whatsoever which may be brought or instituted on account of, growing out of, occurring from, incident to or resulting from, directly or indirectly, any and all damages, claims or losses arising from any injuries or damages (including without limitation, death) to persons or property arising out the negligent or willful acts and omissions of the County Commissioners and those for whom it is legally liable, and all losses, costs, damages and expenses arising out of this Agreement (including, without limitation, reasonable attorneys’ fees), unless and to the extent such injuries or damages (including, without limitation, death) result from, or are claimed to have resulted from the negligent acts or omissions of the School Board. County Commissioners shall assume, on behalf of the School Board, and conduct with due diligence and in good faith, the defense of all such claims, suits, actions and proceedings against the School Board whether or not the County Commissioners are joined therein, even if such claims, suits, actions or proceedings be groundless, false or fraudulent, and County Commissioners shall bear the costs of all judgments and settlements in connection therewith; provided, however, the School Board may defend or participate in the defense of any or all of such claims, suits, actions or proceedings.

c. Sales Tax Refunds. The County Commissioners shall promptly take all steps to obtain the sales and use tax refund from the State of North Carolina, and further, shall, upon request, provide the School Board with timely notice of its efforts and receipts. The County shall endeavor to submit to the State on a monthly basis all required sales tax refund documentation for the applicable equipment, materials and supplies purchased. Any sales and use tax refunds received by the County as a result of the purchases shall be utilized exclusively to provide supplemental funding for the School Board. The funds shall be appropriated to either the operating fund or building program based upon the source of funds used to make the purchase giving rise to the reimbursement. The intent of this Agreement is to provide additional resources for the School Board to use in providing educational services to Wake County students.

7. Amendment. This Agreement may not be amended without the mutual written consent of both parties.

8. Consideration. The County Commissioners and the School Board acknowledge that this Agreement is supported by mutual and adequate consideration.

9. Termination of Agency. The Agency created by Section 1 may be terminated by either party upon thirty (30) days written notice. The termination of the agency shall not impact any purchases that have been made or are pending at the time of termination. The termination of the Agency also shall not affect the County Commissioners’ obligation to appropriate refunds to the School Board as they are received and as required by Section 6(c).

10. Severability. If any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof.

11. Governing Law. North Carolina law shall govern this Agreement.

12. Register of Deeds. This agreement may be recorded with the Register of Deeds as soon as practicable following its execution.

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in their corporate names by their duly authorized officers, all as of the date first above written.

[SEAL] WAKE COUNTY, NORTH CAROLINA
ATTEST:


________________________________ By:_______________________________________
Clerk Board of Commissioners Chairman, Board of Commissioners


[SEAL] WAKE COUNTY BOARD OF EDUCATION
ATTEST:


________________________________ By:_______________________________________
Secretary Chairperson, Board of Education



This instrument has been preaudited in the manner required by The Local Government Budget and Fiscal Control Act.



Finance Officer
Wake County, North Carolina
This instrument has been preaudited in the manner required by the School Budget and Fiscal Control Act.



Finance Officer
Wake County Board of Education




STATE OF NORTH CAROLINA; WAKE COUNTY

I, ____________________________________, a Notary Public of Said State and County, do hereby certify that ____________ and __________ personally came before me this day and acknowledged that they are the Chairman and Clerk, respectively, of the Board of County Commissioners of Wake County, North Carolina, and that by authority duly given and as the act of Wake County, North Carolina, the foregoing instrument was signed in the County’s name by the Chairman of its Board of Commissioners, sealed with its corporate seal and attested by such Clerk.

Witness my hand and official seal this _______ day of __________________, 2007.