HomeMy WebLinkAbout2017-705-E Finance - WHUP Radio outside agency agreement DocuSign Envelope ID:21E87D78-2D54-42C3-BCD9-8EB0802A9DD0
OUTSIDE AGENCY PERFORMANCE AGREEMENT
THIS AGREEMENT,made and entered into the first day of July 2017, ("Effective Date")by and between
the County of Orange, a political subdivision of the State of North Carolina, 200 South Cameron Street,
Hillsborough,North Carolina, 27278, ("County") and WHUP Radio, a not-for-profit corporation, located at
117 West King Street,Hillsborough,NC 27278 ("Provider").
WITNESSETH:
WHEREAS, it is in the interests of the County that said program be assisted by the County and thereby
enhance its availability to residents of the County, and said program addresses an important community
human services need,as identified by the Board of Commissioners;
NOW, THEREFORE, in consideration of the above and the mutual covenants and conditions hereafter set
forth,the County and WHUP Radio agree as follows:
1. Term of the Agreement. The term of this Agreement shall be a program year beginning July 1,
2017 to June 30, 2018.
2. Scope of Services.
a. Provider will provide services, as outlined in the attached Outside Agency Funding
Application and any amendments or revision thereto which is attached as Exhibit "A" and
incorporated by reference, to the residents of Orange County. The Scope of Services and
the Program Budget may be different from the original application based on County
appropriation; however, any revisions or amendments to this Agreement must be approved
in writing by the County and attached to this Agreement as Exhibit B.
b. The Provider shall be solely responsible for the means, methods, techniques, sequence,
safety program and procedures necessary to properly and fully complete the work set forth
in the Scope of Services.
3. Funding.
a. The County agrees to appropriate for the provision of services described in Exhibit B,
Scope of Services and more particularly described in the Revised Program Budget, the
maximum sum of 1000
b. All funds appropriated shall be used for purposes described in Exhibit B. Any funds not
used for the purposes stated shall be returned to the County. Any changes in the use of
funds must be authorized in writing by the County prior to any expenditure of the funds by
the Provider. If the funds are expended not in accordance with the Scope of Services, at the
discretion of the County the Provider may be required to repay the funds to the County.
c. The Provider shall be paid in four equal installments in the amount of 250. The first
payment is contingent upon receipt of the agency's performance agreement; the remaining
payments are contingent upon receipt of the request for reimbursement and related
supporting documentation.
d. The County's obligation to make the quarterly payments is contingent upon receipt of
Progress Reports, which show satisfactory progress toward completion of performance
measures and an accounting of expenditures as detailed in the attached Scope of Services.
(WHUP Radio)
Orange County Outside Agency Performance Agreement
Revised 712017 Page I of 7
DocuSign Envelope ID:21E87D78-2D54-42C3-BCD9-8EB0802A9DD0
e. Once Provider has satisfied its obligations as provided in (d) payment will be made 21
days after receipt of the Progress Report and Request for Reimbursement or 21 days after
due date of Progress Report whichever is later.
f. The County is not obligated to provide any other support to Provider in this or in
succeeding fiscal years.
4. Agency Reporting.
a. Provider will provide Orange County a Progress Report that includes a fiscal report and
updates on performance measures as outlined in the Scope of Services. Progress Report
dates are: July 1 —December 31; January 1 —March 31 and April 1 -June 30. Reports are
due on January 12,April 13, and July 13 of the program fiscal year.
b. Provider agrees to allow the County to inspect its financial books and records, which
document costs of those services,upon reasonable notice during normal working hours.
5. Termination.
a. In the event of any of the circumstances set forth below (hereinafter referred to as
"default"), the County may immediately terminate this Agreement, in whole or in part, and
from time to time. Notice of termination must be in writing, state the reason or reasons for
the termination, and specify the effective date of the termination:
i. In the event that Provider shall cease to exist as an organization or shall enter
bankruptcy proceedings, be declared insolvent, or liquidate all or substantially all
of its assets, or significantly reduce its services or accessibility to Orange County
residents during the term of this Agreement; or
ii. In the event that Provider shall fail to render a satisfactory accounting as provided
section 4 above, the County may terminate this Agreement and Provider shall
return all payments already made to it by the County for services which have not
been provided or for which no satisfactory accounting has been rendered; or
iii. In the event of any fraudulent representation by the Provider in an invoice or other
verification required to obtain payment under this Agreement or other dishonesty
on a material matter relating to the performance of services under this Agreement.
iv. Nonperformance,incomplete service or performance, or failure to satisfactorily
perform any part of the work identified in the Scope of Services or to comply with
any provision of this Agreement, as determined by the County in its sole discretion.
v. Failure to adhere to the terms of applicable county, state or federal laws,
regulations, or stated public policy.
b. In the event of default by the Provider,the county may elect to terminate this Agreement, in
whole or in part and/or require the Provider to repay the funds within ten(10)business days
from written notice of default. The County may (but shall not be required to) grant the
Provider an opportunity to cure the default without termination of this Agreement. This
clause shall not be interpreted to limit the County's remedies in law or in equity.
(WHUP Radio)
Orange County Outside Agency Performance Agreement Page 2 of 10
Rev. 7117
DocuSign Envelope ID:21E87D78-2D54-42C3-BCD9-8EB0802A9DD0
c. Notwithstanding the foregoing, either party may terminate the agreement at any time
without penalty; provided that written notice of such termination is furnished to the other
party at least 30 days prior to termination. In the event of such termination, any payment
due shall be prorated to the date of termination and any unused funds shall be returned to
the County within 10 days of termination.
d. Any termination of this Agreement for default under this section that is later deemed to be
unjustified shall be deemed a termination for convenience.
6. Insurance.
a. General Requirements. The Provider shall purchase and maintain, during the period of
performance of this Agreement, insurance:
i. Worker's Compensation. For protection from claims under workers'or workmen's
compensation acts;
ii. Comprehensive General Liability Insurance covering claims arising out of or
relating to bodily injury,including bodily injury, sickness, disease or death of any
of the Consultant's employees or any other person and to real and personal property
including loss of use resulting thereof;
iii. Comprehensive Automobile Liability Insurance,including hired and non-owned
vehicles, if any, covering personal injury or death, and property damage; and
iv. Professional Liability Insurance, covering personal injury,bodily injury and
property damage and claims arising out of or related to the performance under this
Agreement by the Consultant or his agents,consultants and employees.
b. Limits of Coverage: Minimum limits of insurance coverage shall be as follows:
INSURANCE DESCRIPTION MINIMUM REQUIRED COVERAGE
• Worker's Compensation Limits for Coverage A-Statutory State
NC&Coverage B -Employers Liability
$500,000 each accident, disease policy limit and
disease each employee
• Commercial General $1,000,000 Each Occurrence
Liability $2,000,000 Aggregate
• Automobile Liability $500,000 Combined Single Limit
• Professional Liability $1,000,000 Each Occurrence
$2,000,000 Aggregate
c. All insurance policies (with the exception of Worker's Compensation and Professional
Liability)required under this Agreement shall name the County as an additional insured
party and as a certificate holder. Evidence of such insurance and all correspondence shall
be sent to:
Orange County Risk Manager
Post Office Box 8181
Hillsborough,NC 27278
d. Nothing in this section is intended to affect or abrogate the County's sovereign immunity
defenses.
(WHUP Radio)
Orange County Outside Agency Performance Agreement Page 3 of 10
Rev. 7117
DocuSign Envelope ID:21E87D78-2D54-42C3-BCD9-8EB0802A9DD0
7. Relationship of the Parties. Provider is an independent contractor of the County. Provider
represents that they have or will secure, at his own expense, all personnel required in performing
the services under this Agreement. Such personnel shall not be employees or have any
contractual relationship with the County. All personnel engaged in work under this Agreement
shall be fully qualified and shall be authorized and permitted under federal, state and local law to
perform such services.
8. Compliance with all Laws. The Provider, at its sole expense, shall comply with all laws,
ordinances, orders and regulations of the federal, state or local governments, as well as their
respective departments, commissions, boards, and officers, which are in effect at the time of
execution of this Agreement or are adopted at any time following execution of this agreement.
9. Subcontract. The County and Provider deem the services provided under this Agreement to be
personal in nature and Provider may not subcontract any rights or duties under this Agreement to
any other party without prior written consent from the County.
10. Assignment. The Provider shall not assign this Agreement, including the rights to payment, to
any other party without the prior written consent of the County.
11. Indemnification. Provider agrees to defend, indemnify, and hold harmless the County, for all
loss, liability, claims or expense (including reasonable attorney's fees) arising from bodily injury,
including death or property damage, to any person or persons caused in whole or in part by the
negligence or willful misconduct of the Provider, except to the extent same are caused by the
negligence or willful misconduct of the County. It is the intent of this section to require Provider
to indemnify the County to the extent permitted under North Carolina law. Nothing in this
section is intended to affect or abrogate the County's sovereign immunity defenses.
12. Non-Appropriation. This Agreement is subject to the availability of funds to purchase the
specified services and may be terminated at any time if such funds become unavailable.
13. Non-Discrimination. Provider agrees as part of consideration of the granting of funds by Orange
County the parties hereto for themselves, their agents, officials, employees and servants agree not
to discriminate in any manner of these basis of race, color, gender, national origin, age, handicap,
religion, sexual orientation, familial status or veterans status with reference to any activities
carried out by the grantee,no matter how remote. The parties hereto further agree in all respects
to conform to the provision and intent of Orange County Civil Rights Ordinance, as amended and
the Orange County Non-discrimination Policy. This provision is enforced by action for specific
performance, injunctive relief, or other remedy as by law provided; this provision shall be
binding on the grantees, the successors and assigns of the parties hereto with reference to the
above subject manner.
14. Living Wage. Orange County is committed to providing its employees with a living wage and
encourages agencies if funds to pursue the same goal. The County's living wage is $ 13.75 per
hour. To the extent possible, Orange County recommends that WHUP Radio provide a living
wage to its employees.
15. Notice. The Parties hereto agree and understand that written notice, mailed or delivered, to the
last known address shall constitute sufficient notice to the County and the Provider. All notices
required and/or made pursuant to this Agreement to be given to the County and the Provides shall
be in writing and mailed to the party addressed as follows:
(WHUP Radio)
Orange County Outside Agency Performance Agreement Page 4 of 10
Rev. 7117
DocuSign Envelope ID:21E87D78-2D54-42C3-BCD9-8EB0802A9DD0
County: Finance&Administrative Services Provider: WHUP Radio
Orange County 117 West King Street
Post Office Box 8181 Hillsborough,NC 27278
Hillsborough,NC 27278
16. Entire Agreement. This Agreement, including any referenced attachments, constitutes the entire
Agreement between the parties and shall supersede, replace or nullify any and all prior
Agreements of understandings; written or oral, relating to the matters set forth herein, and any
such prior Agreements or understandings shall have no force or affect whatsoever on this
Agreement. The County and Provider have read this Agreement and agree to be bound by all of
its terms, and further agree that this Agreement constitutes the complete and exclusive statement
of the Agreement between the County and Provider.
17. Severability. All clauses found herein shall act independently of each other. If a clause is found
to be illegal or unenforceable, it shall have no effect on the other provisions of this Agreement. It
is understood by the parties hereto that if any part, term or provision of this Agreement is by the
Courts held to be illegal or in conflict with any laws of the State of North Carolina or the United
States, the validity of the remaining portions or provisions shall not be affected, and the rights
and obligations of the parties shall be construed and enforced as if the Agreement did not contain
the particular part,term or provision held to be invalid.
18. Governing Law. This Agreement and the duties, responsibilities, obligations and rights of
respective parties hereunder shall be governed by the laws of the State of North Carolina.
Provider shall at all times remain in compliance with all applicable local, state, and federal laws,
rules, and regulations including but not limited to all state and federal anti-discrimination laws,
policies, rules, and regulations and the Orange County Non-Discrimination Policy and Orange
County Living Wage Policy (each policy is incorporated herein by reference and may be viewed
at http://www.orangecountync.gov/departments/purchasing_division/contracts.php). Any
violation of this requirement is a breach of the Agreement and County may immediately
terminate this Agreement without further obligation on part of the County. This paragraph is not
intended to limit and does not limit the definition of breach to discrimination. By executing this
Agreement Provider affirms that Provider and any subcontractors of Provider are and shall
remain in compliance with Article 2 of Chapter 64 of the North Carolina General Statutes. By
executing this Agreement Provider certifies that Provider has not been identified, and has not
utilized the services of any agent or subcontractor, on the list created by the State Treasurer
pursuant to G.S. 147-86.58.
19. Signatures. This Agreement together with any amendments or modifications may be executed
electronically. All electronic signatures affixed hereto evidence the intent of the Parties to
comply with Article 11A and Article 40 of North Carolina General Statute Chapter 66.
IN WITNESS WHEREOF,the Orange County and the Provider have signed this Agreement, effective on
the last date this Agreement is signed by both parties as indicated by the dates set forth under signatures
below.
For Docu5igned by, 'the Provider
��� 11/22/2017
122B=25F54D0...
Date
(WHUP Radio)
Orange County Outside Agency Performance Agreement Page 5 of 10
Rev. 7117
DocuSign Envelope ID:21E87D78-2D54-42C3-BCD9-8EB0802A9DD0
For ar,[0637994B755E477...
°ocuS'gnedby, unty Government
6lnJln.1l. Dui #YSC
11/27/2017
Bonnie Hammersley, County Manager Date
(WHUP Radio)
Orange County Outside Agency Performance Agreement Page 6 of 10
Rev. 7117
DocuSign Envelope ID:21E87D78-2D54-42C3-BCD9-8EB0802A9DD0 XHIBIT A
PROVIDER'S OUTSIDE, - _ NCY APPLICATION
1
Allen Coleman
Budget & Administrative Services Coordinator
Orange County Finance & Administrative Services
200 South Cameron St.
Hillsborough, NC 27278
Dear Allen,
This letter is in response to suggestions from several Orange County
administrators and officials that WHUP should request funding from the
county for FY 2017-2018 in the amount of $1,000. We very much
appreciate the support that the county and its various agencies have
provided WHUP since we began operations in 2015, and we are
gratified that the Commissioners and staff have afforded us this
opportunity.
WHUP's mission extends well beyond providing locally produced, high-
quality music, news and public affairs programming. One of our
primary objectives is to spotlight our business, non-profit and creative
communities as well as local government and offer an accessible
platform for people to promote the good work they're doing at all
levels.
To that end, we conservatively estimate that we have hosted more
than 700 guests from the community on our various shows since our
broadcast launch 18 months ago, including elected officials, local
business owners, non-profit staff and volunteers, civic organizations,
musicians, artists and neighbors, and we continue to create new
channels to bring more folks into our studios. That volume of
community engagement is unique among media in the greater Triangle
and beyond.
Despite these achievements, WHUP has ambitious plans to expand our
services and reach in coming months. We have identified multiple
ways to accomplish this goal, in particular investments in our studio
technology and delivery systems. We have raised funds for field
recording, remote broadcast and in-studio equipment that will be
DocuSign Envelope ID:21E87D78-2D54-42C3-BCD9-8EB0802A9DD0 XHIBIT A
deployed overP �VsJQmYAOl l"dSI� . dflFVe'ApeP�IATlh-QgRLo upgrade
our website to add such features as a dedicated, searchable
permanent archive of our in-house live music performances and
interviews. The funds from Orange County, if granted, will be applied
to these capital improvements.
We understand that this request falls outside the annual funding cycle,
but we will be happy to provide any additional documentation that
Orange County would ordinarily require of outside groups that seek
county support including a detailed financial statement. We also
understand that this opportunity applies only to FY 2017-2018, and
that in future years we will adhere to the timetable and process
established by the county for such appropriations.
On behalf of the WHUP board of directors and the 300+ volunteers
whose contributions have made our community radio station possible,
I would again like to thank the county staff and Board of
Commissioners for this opportunity. We look forward to having you on
the air.
Sincerely,
Bob Burtman
President, Hillsborough Community Media / WHUP
info@whupfm.org
919.260.2138 (cell)
919.643.2999 (office)
DocuSign Envelope ID:2lE87D78-2D54-42C3-BCD9-8EB0802A9DD0
EXHIBIT`B"
Scope of Services—FY 2017-18
Outside Agency Performance Agreement
Agency Name: Hillsborough Community Media
Program Name: WHUP
Funding Award: $1,000
Outline how the agency will spend Orange County's funding award.
Expense Description Amount
Equipment maintenance and upgrades $1,000.00
Program Services
Outline the critical services(activities)the agency will employ to attain the Anticipated Outcomes below,by June 30,2018.
• Provide ongoing access to the WHUP studios
• Outreach to community stakeholders inviting them to participate in our various programs
• Distribute content in real time and on demand via the WHUP website and social media outlets as
well as provide high-resolution audio files of in-studio interviews and performances on request
Anticipated Outcomes
The Anticipated Results column must include quantifiable results in the form of number of persons/units served within Orange
County, only (all Towns and municipalities). If you use percentages, you must also provide the total number of participants
within that measure's description or for an earlier performance measure.
Performance Measures Anticipated
Results
Interviews with Orange County non-profit staff and volunteers,local business owners,county and 200
municipal officials,members of the creative community and other local residents
Live in-studio sessions with local musicians and performers playing at Orange County venues 50+
Announcements about and recaps of government agency meetings,noteworthy local happenings 500+
and initiatives,and information of interest to Orange County residents
*Note: WHUP exists to promote the many institutions and individuals doing positive work in 25,000+
Hillsborough and Orange County to our listeners whether they live in Orange County or (total annual
elsewhere.Measuring the listenership is difficult,especially because many of our guests receive listenership
copies of their edited interviews and music sessions to post online or otherwise share with their based on
constituants,so the actual numbers are far larger than what our imperfect analytics can determine. previous
But we do know that the numbers have risen steadily since WHUP's initial broadcast in October, data and
2015,and we anticipate that trend to continue. estimates)
Docu5igned by:
&L President 11/22/2017
Certified by: ,,,,,,,s25Fs4Do... Title: Date:
(Provider's Signature)
DocuSign Envelope ID:21E87D78-2D54-42C3-BCD9-8EB0802A9DD0
ATTACHMENT "A"
Orange County Certifications—FY 2017-18
Outside Agency Performance Agreement
Chief Contact,Administrators,Chief Executive Officer and Chief Financial Officer
I certify that I have provided a list of the chief contact, administrators, chief executive officer and chief
financial officer for my agency with this Agreement and that I will keep it current to the County of Orange.
The list should be in writing with the name,title,residential address;phone and email address and if
possible, fax number.
Officers and Board of Directors
I certify that I have provided a current list of the Officers and Board of Directors with this Agreement and
that we will continue to update the list as changes occur. The list should be in writing,with the name,
physical address,mailing address and if possible,phone, fax and email address.
Budget Submission
I certify that I have provided a budget for the period to be covered by funding Orange County, and that any
substantive changes made to this budget have been in advance authorized in writing by Orange County.
Annual Financial Review
I certify that I have provided a copy of the latest annual Financial Review for our agency and the budget
adopted by the agency for the fiscal years encompassing this Agreement. If not,please explain on a
separate sheet of paper.
Alignment with Organization's Mission
I certify that the programs and services for which this funding is requested align with the mission of the
organization.
Intended Purpose
I certify that the funds provided to the agency under the terms of this Agreement will be used for a public
purpose and shall only be used for the purposes intended and any money not used for those purposes will be
promptly returned to Orange County.
Docu5igned by:
Qot President 11/22/2017
Certified by: _ Title: Date:
122BEC"25F54D0...
(rrovicier's signature)
(WHUP Radio)
Orange County Outside Agency Performance Agreement Page 10 of 10
Rev. 7117
DocuSign Envelope ID:21 E87D78-2D54-42C3-BCD9-8EB0802A9DD0
1
Request for COLI exemption
Hillsborough Community Media / WHUP
September 5, 2017
WHUP respectfully requests an exemption from the requirement of providing a
Certificate of Liability Insurance in order to qualify for a $1,000 appropriation
from Orange County for the following reasons:
1) Hillsborough Community Media / WHUP is an all-volunteer 501(c)3 non-profit
organization with an annual budget of less than $25,000
2) The cost of providing liability insurance that meets Orange County's
specifications is approximately $700, which would leave little of the grant to
work with. In the wake of this information, the organization does plan to
research and purchase liability insurance for 2018, so any future grant requests
from the county will comply with the insurance requirement.
3) The radio station rents its studio space from Dual Supply hardware store and
is covered under Dual's liability policy for accidents and injuries that may occur
outside the studio suite; guests who visit WHUP do not have access to any
hazardous materials or electrical equipment or wiring.
4) The grant from Orange County is for equipment maintenance and upgrades as
opposed to a public event, so no additional element of risk exists as a result of
the funding.
5) The county's Risk Transfer Policy lists various adverse outcomes that may
attend "activities" that a contractual entity might undertake - none of these are
directly applicable to WHUP's funding request or the outcomes that we foresee as
a result.
6) The primary mission of WHUP is to promote the positive work of the
institutions and individuals in Orange County, so the risk of legal actions
regarding our program content is virtually non-existent.
7) WHUP has received funding and other support from local government
agencies, and the issue has not previously been raised. Perhaps it should have
been, but it's not been on our radar and we were not prepared to address it until
now.
Thanks for your consideration. Sincerely,
Bob Burtman
President
Hillsborough Community Media / WHUP