HomeMy WebLinkAbout2023-473-E-DEAPR-Dr. Charles Van Der Horst Water Safety Initiative-Outside Agency FundingOrange County Outside Agency Performance Agreement
Revised 06/23—County Manager Version Page 1 of 10
OUTSIDE AGENCY PERFORMANCE AGREEMENT
THIS AGREEMENT, made and entered into the first day of July 2023, (“Effective Date”) by and between
the County of Orange, a political subdivision of the State of North Carolina, Post Office Box 8181,
Hillsborough, North Carolina, 27278, ("County") and Swim for Charlie, a not-for-profit corporation, located
at 6730 Creek Wood Drive, Chapel Hill, North Carolina 27514 (“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 Provider agree as follows:
1. Term of the Agreement. The term of this Agreement shall be a program year beginning July 1,
2023 to June 30, 2024.
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 A, Scope
of Services and more particularly described in the Revised Program Budget, the maximum
sum of $6641.
b. All funds appropriated shall be used for purposes described in Exhibit A. 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 $1660.25. 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.
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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 8, April 8 and July 8 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. Termination for Cause. 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.
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
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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.
e. Waiver. The payment of any sums by the County under this Agreement or the failure of the
County to require compliance by the Provider with any provisions of this Agreement or the
waiver by the County of any breach of this Agreement shall not constitute a waiver of any
claim for damages by the County for any breach of this Agreement or a waiver of any other
required compliance with this Agreement.
6. Responsibilities of the County.
Cooperation and Coordination. The County has designated (Ardra Webster) to act as the
County's representative with respect to the Project who shall have the authority to render
decisions within guidelines established by the County Manager or the County Board of
Commissioners and who shall be available during working hours as often as may be
reasonably required to render decisions and to furnish information.
7. 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. Cyber Liability. For protection from claims resulting from data breach, virus, and
cyberattack;
iii. 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;
iv. Comprehensive Automobile Liability Insurance, including hired and non-owned
vehicles, if any, covering personal injury or death, and property damage; and
v. 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.
vi. Sexual Misconduct. Sexual Abuse/Molestation Insurance is required when Provider
works directly one-on-one with children, elderly or other at-risk populations.
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 ‐
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Statutory State NC, for each employee
Limits for Coverage B ‐
Employers Liability of:
$1 million Each Occurrence
$1,000,000 BID limit
• Cyber Liability $1,000,000 Each Occurrence;
$2,000,000 Aggregate
*Only required for agencies transmitting personal
identifiable information that is disseminated electronically.
• Commercial General $1,000,000 Each Occurrence
Liability $2,000,000 Aggregate
• Automobile Liability $1,000,000 Each Occurrence
*Only required for agencies doing travel as part of the
agreement with the County.
• Professional Liability $1,000,000 Each Occurrence
$2,000,000 Aggregate
• Sexual Misconduct $1,000,000 Each Occurrence
$2,000,000 Aggregate
*Only required for agencies doing direct work with minors
(under the age of 18).
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. For more information see the Orange County Risk Transfer
Policy and Orange County Minimum Insurance Coverage Requirements, (each
document is incorporated herein by reference and may be viewed at
http://www.orangecountync.gov/departments/purchasing_division/contracts.php.)
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.
8. General Provisions.
a. 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. 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 identified, on the
list created by the State Treasurer pursuant to G.S. 147-86.58. By executing this Agreement
Provider certifies that Provider has not been identified, and has not utilized the services of
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any agent or subcontractor identified, on the list created by the State Treasurer pursuant to
G.S. 147-86.81.
b.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,
which is incorporated herein by reference and can be viewed at
http://www.orangecountync.gov/departments/purchasing_division/contracts.php. The
County may enforce this provision by an 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.
c.Dispute Resolution. Any and all suits or actions to enforce, interpret or seek damages with
respect to any provision of, or the performance or non-performance of, this Agreement shall
be brought in the General Court of Justice of North Carolina sitting in Orange County, North
Carolina. It is agreed by the parties that no other court shall have jurisdiction or venue with
respect to such suits or actions. Binding arbitration may not be initiated by either Party,
however, the Parties may agree to nonbinding mediation of any dispute prior to the bringing
of such suit or action.
d.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 Orange County Living Wage
Policy, which is incorporated herein by reference, can be viewed at:
http://www.orangecountync.gov/departments/purchasing_division/contracts.php. The
County’s living wage is $15.85 per hour. To the extent possible, Orange County
recommends that Provider provide a living wage to its employees.
e.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.
f.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.
g.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.
h.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.
i.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
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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.
j.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.
k.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.
l.Entire Agreement. This Agreement represents the entire and integrated agreement between
the County and the Provider and supersedes all prior negotiations, representations or
agreements, either written or oral. This Agreement may be amended only by written
instrument signed by both parties. Modifications may be evidenced by facsimile signatures.
m.Notices. Any notice required by this Agreement shall be in writing and delivered by certified
or registered mail, return receipt requested to the following:
Orange County
Attention: Ardra
Webster P.O. Box 8181
Hillsborough, NC 27278
Provider’s Name Dr Charles Van Der Horst Water SafetyInitiative Attention: Jonathan Klein
Address: 1821 Hillandale Rd, Suite 1B #126
Durham, NC 27705
Email:awebster@orangecountync.gov Email: jonathan.klein@swimforcharlie.org
n. 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 and on behalf of the Provider
_____________________________ _______________________
Jonathan Klein, Executive Director Date
For and on behalf of Orange County Government
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_______________________________ ________________________
Bonnie Hammersley, County Manager Date
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ORANGE COUNTY—DEPARTMENT USE ONLY
______________________________________________________________________________
Party/Vendor Name: Dr. Charles Van Der Horst Water Safety Initiative Party/Vendor Contact Person: Jonathan Klein
Contact Phone: 919-260-0089 Party/Vendor Address: 1821 Hillandale Road Suite 1B #126 City Durham State: NC
Zip: 27705 Department: DEAPR Amount: $6641 Purpose: Outside Agency Funding Budget Code(s): 10290050
720271 Vendor # 68113 (N/A if new vendor) Vendor is a BOCC consultant? Yes No Contract Type: (Check
one) New Renewal Amendment Effective Date Approved by Board Yes No Agenda
Date: June 20, 2023
This agreement is approved as to technical form and content and I as Department Director affirmatively state work on
this project has not been initiated prior to execution of the agreement:
Department Director’s Signature ________________________________________ Date: ________
Agreements for emergency services or repair are not subject to the above affirmation. If services related to this
agreement have already begun or been completed please briefly describe the nature of the emergency condition that
was addressed:
Information Technologies
(Applicable only to hardware/software purchases or related services) This agreement has been reviewed and is
approved as to information technology content and specifications:
Office of the Chief Information Officer___________________________________ Date: ________
Risk Management
This agreement is approved for sufficiency of insurance standards, specifications, and requirements:
Office of the Risk Management Officer___________________________________ Date: _________
Financial Services
This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act:
Office of the Chief Financial Officer ____________________________________ Date: _________
Legal Services
This agreement is approved as to legal form and sufficiency:
Office of the County Attorney __________________________________________Date: ________
Clerk to the Board
Received for record retention:
All Docusign contracts must be copied to the Clerk upon completion: occlerkdocs@orangecountync.gov
The following signature block is for hard copies only and is not required for Docusign contracts:
Office of the Clerk to the Board __________________________________________Date:_________
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Certified by: Jonathan E. Klein Title: President & Board Chair Date: 7/13/2023
(Provider’s Signature)
EXHIBIT “B”
Scope of Services – FY 2023-24
Outside Agency Performance Agreement
Agency Name: Swim for Charlie
Program Name: Water Safety program expansion for 2nd grade Orange County Schools students
Funding Award: $6,641
Outline how the agency will spend Orange County’s funding award.
Program Services
Outline the critical services (activities) the agency will employ to attain the Anticipated Outcomes below, by June 30, 2024.
•Parent information sessions at the schools. Word of mouth from principals, teachers, parents who
have gone through the program. Have a well run program where studnets are learning water safety
skills. These activities will allow Swim for Charlie to attain a high participation rate.
•Recruiting enough instructors and keeping lesson class size low to achieve a low student to
instructor ratio.
•Having well trained, motivated, effective instructors. The 2nd and 3rd bullet points will allow
Swim for Charlie to attain high advancement rates for the students.
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
93% Participation rate. 300 is the projected number of students who will be offered the
program in the 4 schools.
279 students
participating
75% advancement rate for early learners (students starting the program afraid of being
in the water or those who may not be fearful have no water safety/swimming skills)
With a projected number of 195 early learners the goal is to have 146 advance to being
able to independently get from a front to a back float and pull themselves out of the
water. See attachment for skill levels.
146 students
advancing
Expense Description Amount
Operations (supplies, instructor/lifeguard fees, student certificates, skill evaluation and
progress report to parents)
$4,330
Operations (travel and training) $525
Personnel (program director salary) $8,426
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Certified by: Jonathan E. Klein Title: President & Board Chair Date 7/13/2023
(Provider’s Signature)
Performance Measures Anticipated
Results
80% advancement rate for students with basic water safety/swimming skills at least 1
level. With a projected number of 84 students with some water safety skills the goal is
to have 67 advance at least one level. See attachment for skill levels.
67 students
advancing
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President 8/25/2023
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