021318wsa Agenda PackageRECEIVED BY L GA SERVICES
06
DATE: /02 % t.7
BY:
COUNTY DOCUMENT REVIEW COVER SHEET
4, This Block ONLY to be completed by Department 4.
Vendor Legal Name: YMCA of the Sandhills
Type of Contract: 1 New o Renewal o Services
o Goods o Consulting o Construction o Lease
o Other:
Description/Scope of Work: Contract with YMCA to assist with funding in opening a facility in Western Harnett
Funding Source: 1 County o State Grant o Federal Grant o Local Grant
o To Be Financed o Other
Expenditure/Revenue Code(s) (all 14 digits required)
Department: Parks and Recreation 110-8200-450.33-45
Project Code:
Annual Contract Amount: $9,500/month ($114,000) Budget Amendment MUST be attached if needed
Dept. Contact: Carl Davis Contract Period (dates): Jan 1, 2019- Dec 31, 2028
Date Needed/Board Review: 2/5/18 Contact Telephone: 893-7518
Department Head Signature: C-----' Q 1/30/18
_ Date:
Department Head has reviewed attached and is satisfied with material terms
INFORMATION TECHNOLOGY DIRECTOR
(Applicable only for hardware/software purchased or related technology services)
This contract has been reviewed and approved by the IT Director as to technical content and network compatibility.
IT Director's Signature: Date:
COUNTY STAFF ATTORNEY
Dept Head Initial: No Legal Review Required:
Legal Review Required:.
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Signature: % Date: () ;c
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RISK
RISK MANAGEMENT
Risk Management has received a copy of the Certificate of Insurance. Yes No
Signature: Date:
•ll FINANCE
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Signature:
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Date: 16
(� COUNTY MANAGER
Signature: l �--Q� Cvf' Date: Z ".S-- ($
CLERK TO T E BO RD OF 9MMISSIO ERS (A enda Request form must be attached)
Comments: ' A! .11‘ ',�[`/r,�O-�ti��i , -�j - l F
Signature: �Q A.A , 1/l/ PDate: "' --/e
U CONTRACT ADMINISTRATION
Date Provided to Clerk for Board Packet:
Final Contract Distribution Date: Contract Control Number: �/ "J—
❑ Scanned o Original/Copy to Dept. o Original to Clerk o To Dept for vendor sig.
Rev. 05/2012
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Agenda Items
Board Meeting
Agenda Item
9
MEETING DATE: February 5, 2018
TO: HARNETT COUNTY BOARD OF COMMISSIONERS
SUBJECT: Contract with YMCA of the Sandhills
REQUESTED BY: Carl Davis, Parks and Recreation Director
11 "I -
REQUEST:
Parks and Recreation requests consideration of a Contract between the Board of
Commissioners and the YMCA of the Sandhills to open a YMCA facility in Harnett County.
YMCA will be located off Hwy 87 in western Harnett County and will include a gymnasium,
indoor lap pool, exercise rooms for weight training, cardio, and group exercise, locker rooms,
and a childcare area.
FINANCE OFFICER'S RECOMMENDATION:
COUNTY MANAGER'S RECOMMENDATION:
C:\Users\gwheeler\AppData\Locai\Microsoft\Windows\1NetCache\Content.Outlook\TPTEQCLV\agendaform2018.ymca.d
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NORTH CAROLINA
FUNDING AGREEMENT
COUNTY OF HARNETT
THIS FUNDING AGREEMENT ("Agreement"), is made and entered into as of this
day of , by and between COUNTY OF HARNETT, a body politic and a political
subdivision of the State of North Carolina (hereinafter referred to as "County"), and the YOUNG
MEN'S CHRISTIAN ASSOCIATION OF THE SANDILLS, a non-profit corporation organized
under the laws of the State of North Carolina (hereinafter referred to as the "YMCA").
WITNES SETH
WHEREAS, the Harnett County Board of Commissioners (the "Board") has considered
the needs of the citizens and residents of Harnett County for securing and developing recreation
opportunities in order to enhance and provide for the general health and welfare of the citizens
and residents of Harnett County; and
WHEREAS, the YMCA has proposed to lease the former Cagle Furniturebuilding
located at 107 Carletta Cagle Drive, Cameron, North Carolina, 28326 and repurpose the building
into a new recreational center that will include a gymnasium, an indoor pool, exercise rooms,
locker rooms, and a childcare area upon County's commitment to provide financial support for
the operation of the facility; and
WHEREAS, the YMCA has a history of providing recreational opportunities to citizens
and residents of Bladen, Cumberland, Harnett, Hoke, and Moore counties at its branches in
Cumberland County, North Carolina.
WHEREAS, the Board has determined that YMCA's proposal to operate the new
recreational facility ("YMCA Facility") accomplishes the Board's mission to enhance and
provide for the general health and welfare of the citizens and residents of Harnett County;
NOW THEREFORE, the parties for and in consideration of the covenants and
agreements contained herein do hereby contract and agree as follows:
1.1
ARTICLE 1
PERFORMANCE BY THE YMCA
YMCA Facility; Minimum Requirements. The YMCA shall upfit, operate, and
maintain the YMCA Facility located at 107 Carletta Cagle Drive, Cameron, North
Carolina 28326, which is described as a recreational facility that shall include, at a
minimum, a gymnasium, an indoor lap pool, exercise rooms for weight training,
cardio, group exercise, and CrossFit, locker rooms, and a childcare area, all to be
approved by County. The YMCA shall operate and open to the public a recreational
facility of like quality as its recreational facilities in Cumberland County, North
Page 1 of 10
Carolina. A copy of the proposed YMCA Facility is attached to this Agreement as
Attachment A.
1.2 Use by Harnett County Residents. The YMCA Facility shall be available for non-
exclusive use by Harnett County residents for recreational purposes through
memberships, scholarships, and special events.
1.3 Promotion of Use by Harnett County Citizens and Residents. The YMCA will use
its reasonable best efforts to promote the use of the YMCA facility to Harnett County
residents. From two to four times each calendar year, the YMCA will hold "Open
House" or so-called "Community Days" or "Community Events" at the YMCA
Facility when non-members will be admitted free of charge to promote use and
membership of the YMCA Facility.
1.4 Financial Aid Programs. Consistent with such programs at the YMCA's other
facilities in Cumberland County, the YMCA will use its reasonable best efforts to
provide financial aid and assistance based on need for residents of Harnett County
who might not otherwise be able to afford the services at the YMCA Facility. The
YMCA shall also use its reasonable best efforts to raise funds from the Harnett
County community and its members to assist Harnett County citizens and residents
with fewer resources, so that the YMCA Facility can be open to as many Harnett
County citizens and residents as possible who wish to use it, subject to capacity levels
and available funds.
1.5 Military Outreach. Consistent with such programs at the YMCA's other facilities in
Cumberland County, the YMCA will use its reasonable best efforts to provide no cost
membership to eligible military personnel and family members under "Project
Responsibility."
1.6 Youth Programs. The YMCA shall not provide or organize any youth sports
programs or leagues in Harnett County that are already provided or organized by
Western Harnett Youth Recreation, Inc. The YMCA shall collaborate with the Harnett
County Parks and Recreation Department to determine if any proposed YMCA youth
sports programs or leagues would compete with any programs or leagues provided or
organized by Western Harnett Youth Recreation, Inc.
1.7 Operating Schedule. The YMCA Facility shall be open for use by the public no later
than August 1, 2019 (the "Opening Date").
1.8 YMCA Board. During the term of this Agreement, the YMCA shall permit a
representative from County to serve on the Sandhills YMCA Board of Directors and a
representative to serve on any local YMCA board created specifically for the YMCA
Facility for Harnett County.
Page 2 of 10
ARTICLE 2
TERM AND FUNDING
2.1 Term. Unless earlier terminated as provided herein, or by law, this Agreement shall
begin on January 1, 2019 and terminate on the earlier of either 10 years from the first
date of payment of the Funds as described in Section 2.2 or June 31, 2029. The
YMCA understands that this Agreement will terminate as provided in this Section and
that there is no guarantee of renewal unless mutually agreed upon in writing by both
parties.
2.2 Funding. Subject to the conditions contained in this Agreement, County shall pay the
YMCA $9,500.00 per month (the "Funds"). Payment of the Funds shall commence
within 15 days of County's receipt of sufficient proof that at least 50 percent of the
renovations have been completed on the YMCA Facility. A failure to complete at least
50 percent of the renovations by April 30, 2019 shall be cause for termination unless
an extension is mutually agreed upon in writing by both parties. If the YMCA does
not complete the remaining 50 percent of the YMCA Facility renovations by the
Opening Date, County shall have the option to suspend any further payments until the
renovations have been completed and the YMCA Facility is open for use to the
public. A suspension of the Funds shall not entitle the YMCA to an extension of
payment of the Funds. County shall pay the Funds to the YMCA by the 15th day of
each month during the Term of this Agreement.
2.3 Proper Use of Funds. The YMCA agrees that under no circumstances shall the
Funds received under this Agreement be used, either directly or indirectly, to pay
costs or attorney fees incurred in any adversarial proceeding against County. Further,
the YMCA agrees that the Funds shall not be used, either directly or indirectly, for
political activities, religious activities, to promote religious interests, or lobbying.
2.4 Non -Appropriation. The YMCA acknowledges that County is a governmental entity
and the validity of this Agreement is based upon the availability of public funding
under the authority of its statutory mandate. In the event that public funds are not
available and not appropriated for the performance of County's obligations under this
Agreement, then this Agreement shall automatically expire without penalty to County
30 days after written notice to the YMCA of the non -appropriation of public funds.
ARTICLE 3
OPERATION OF YMCA FACILITY
3.1 Minimum Required Operation. The YMCA, its respective successors in interest,
and permitted assigns shall lease and operate the YMCA Facility on a non-profit
basis.
3.2 No Joint Venture. This Agreement does not constitute a joint venture between the
parties, and the parties to this Agreement will not be partners in the YMCA Facility.
Page 3 of 10
3.3 Equal Opportunity. The YMCA must comply with all applicable federal laws
regarding equal employment opportunity and affirmative action procedures.
3.4 Insurance. The YMCA shall obtain, at its sole expense, all insurance required in the
following paragraphs, listed below as A, B, & C.
A. Workers' Compensation Insurance - Coverage for all paid and volunteer workers
meeting the statutory requirements of The North Carolina Workers'
Compensation Act, North Carolina General Statutes § 97.
B. Commercial Automobile Liability — Coverage with limits no less than
$1,000,000.00 per occurrence for bodily injury and property damage for any
vehicle used during performance of contract services, including coverage for
owned, hired, and non -owned vehicles. Evidence of commercial automobile
coverage is only necessary if vehicles are used in the provision of services under
this Agreement.
C. Commercial General Liability Insurance - Bodily injury and property damage
liability as will protect the YMCA from claims of bodily injury or property
damages which arise from operations of this Agreement. The amounts of such
insurance coverage shall not be less than $2,000,000.00 per occurrence and
$3,000,000.00 aggregate coverage. This insurance shall include coverage for
completed operations/products liability, personal injury liability and contractual
liability.
Insurance with limits no less than those specified above shall be evidenced by a
Certificate of Insurance issued by a duly authorized representative of the insurer. In
the case of self-insurance, a letter of explanation must be provided to and approved
by Harnett County Risk Management. County and its employees shall be named as
an additional insured on the required policies of insurance, except worker's
compensation.
The YMCA shall provide County 30 days written notice of any intent to amend or
terminate said policy by either the insured or the insuring company. However, a 10
day notice is sufficient for cancellation by the insuring company due to non-
payment of premium.
3.5 Maintenance of YMCA Facility. The YMCA shall budget for and perform all
necessary upkeep and maintenance on the YMCA Facility to ensure that it is
maintained in good working order. With the exception of the payment of the Funds in
accordance with Section 2.2, the YMCA understands and agrees that County will not
assist in any operations or maintenance costs of the YMCA Facility.
3.6 Operation in Accordance with Laws. The YMCA shall operate the YMCA Facility
in conformity with all local, state, and federal laws applicable thereto including the
Americans with Disabilities Act. The YMCA agrees to generally operate the YMCA
Facility during the hours of operation and in a manner used by the YMCA for similar
Page 4 of 10
YMCA facilities operated by the YMCA. Provided, however, that such hours and
manner of operations may be reasonably adjusted from time -to -time by the YMCA
based on the demand for services at the YMCA Facility.
3.7 Alterations to YMCA Facility. The YMCA, at its own cost and expense and subject
to any agreements to the contrary with the owner of the building, shall have the right
and privilege at all times during the term of this Agreement to make such alterations,
changes, improvements, and additions to the YMCA Facility as the YMCA may
reasonably desire, subject, further, to the provisions of this Section. If any such
alterations, additions, or improvements would materially diminish or eliminate the
minimum requirements for the YMCA Facility described in Section 1.1, the YMCA
shall submit plans (the "Alteration Plans") to County for review. The Alteration Plans
shall be sufficient in form and context to allow County to evaluate the proposed
alterations, additions, or improvements, and County shall have the right to request
such additional information as County shall reasonably require. Within 30 days after
County's receipt of the Alteration Plans and any additional information requested by
County, County will notify the YMCA in writing whether County approves the
alterations, additions, or improvements provided in the Alteration Plans, and any
limitations or conditions upon County's approval. This approval process shall not
apply to any non-structural changes made by the YMCA of such a minor nature that
they do not require a building permit.
3.8 YMCA's Covenant to Operate. Unless the YMCA elects to return the Funds to
County (without interest), the YMCA covenants and agrees during the term of this
Agreement, except when prevented from so doing by force majeure, to operate the
YMCA Facility as an exercise, recreation, and sports center facility similar to other
facilities operated by the YMCA for a period of at least 10 years after the Opening
Date. Notwithstanding the foregoing, so long as the YMCA is not violating any law
or other provisions of this Agreement, nothing contained in this Agreement shall be
deemed to allow County to: (i) regulate the manner of operation by the YMCA and/or
the hours and/or days of the YMCA Facility's operation, so long as such manner of
operation and the hours and days of operation are consistent with said other YMCA
facilities, considering membership levels and demand for services; or (ii) have any
right, express or implied, of censorship over any programs, activities, services, or
events by the YMCA in connection with the YMCA Facility.
ARTICLE 4
RECORDS AND REPORTS TO COUNTY
4.1 Accounting Records. The YMCA shall maintain all accounts, books, ledgers,
journals, and records in accordance with generally accepted accounting principles,
practices, and procedures. County shall be entitled to audit the YMCA's expenditure
of the Funds at County's discretion.
4.2 Records of Activities. The YMCA shall maintain standard and customary records
related to the recreational activities, programs, and services at the YMCA Facility. To
Page 5 of 10
the extent reasonably possible without undue cost or expense, such records shall
include a listing of each activity, program, or service undertaken and participation
levels of Harnett County residents. Such records shall be open for inspection by
County upon prior reasonable notice and kept by the YMCA throughout the term of
this Agreement.
4.3 Annual Reports. Within 90 days after the end of the YMCA's fiscal year, the YMCA
shall provide County an accounting of the Funds to demonstrate that the Funds were
used for the purposes specified herein. Additionally, the YMCA shall provide a report
on the participation level of Harnett County residents for each of the activities,
programs, and services for that year, and proposed targets for Harnett County
residents' participations for the following year. If prior targets have not been met, the
YMCA will include a proposal for increasing participation by Harnett County
residents.
4.4 Records Retention. All books and records shall be maintained by the YMCA for a
period of at least three years from the date of final payment under this Agreement and
shall be made available for audit or evaluation upon request during the YMCA's
regular business hours.
4.5 Unauthorized Expenditures. Should any Funds be expended for prohibited,
unauthorized, improper, illegal, or subsequently disapproved purposes as a result of
any audit, the YMCA will refund such amount to County within 30 days of County's
request for said funds. The YMCA further authorizes County to deduct such amount
or charge as a claim against future payments should a refund payment not be made by
the YMCA.
ARTICLE 5
DEFAULT AND REMEDIES
5.1 Cure Periods. (i) If either party neglects or fails to pay any sum or monetary charge
due from it hereunder for a period of 30 days after written notice of default from the
other party; or (ii) either party neglects or fails to perform or observe any of their
other respective covenants, terms, provisions, or conditions on its part to be
performed or observed under this Agreement within 30 days after written notice of
default by the other party, then the other party may immediately or at any time
thereafter so long as said default is continuing, exercise its rights and remedies set out
herein or provided by law. In all events, the non -defaulting party shall use reasonable
efforts to mitigate any loss or damage which it may suffer as a result of the other's
default. It is expressly agreed that neither party shall have the right to seek
consequential or punitive damages against the other for any default under this
Agreement.
5.2 Termination. This Agreement may be terminated by either party for the other party's
failure to cure a default within the required time period set forth in Section 5.1. If this
Agreement is terminated by the YMCA, the YMCA shall be entitled to all payments
Page 6 of 10
then due as of the effective date of termination. If this Agreement is terminated by
County, the YMCA shall refund to County any Funds received after the date of
receipt of the notice of default.
5.3 Termination for Convenience. Notwithstanding any other provision of this
Agreement, this Agreement may be terminated at any time by either party, for any
reason or no reason, upon 90 days written notice to the other party. 90 days written
notice for termination is not required if the other party is declared in default as
previously detailed in Section 5.2 of this Agreement.
5.4 Withholding of Funds. If the YMCA fails to cure a default within the required time
period set forth in Section 5.1, County shall have the option, in lieu of termination, to
withhold Funds until such time that the YMCA cures the default. If the YMCA does
not cure the default within six months, then this Agreement shall be terminated
without further notice to the YMCA.
5.5 Force Majeure. If either party shall be delayed or hindered in or prevented from the
performance of any act required under this Agreement by reason of strikes, lockouts,
labor disputes, failure of power or other utilities, acts of the State, Federal, or local
government in their sovereign capacities, terrorist acts, riots, insurrection, war, acts of
God, or other reason not the fault of the party delayed in performing any act required
under this Agreement (collectively "force majeure" or a "force majeure event"), then
performance of such act shall be excused for the period of the delay, and the period of
performance for any such act shall be extended for a period equivalent to the period
of such delay. The provisions of this Section shall not be applicable to delays
resulting from the inability of a party to obtain financing or to proceed with its
obligations under this Agreement because of a lack of funds, unless such funds were
to be supplied by the other party to this Agreement.
ARTICLE 6
GENERAL PROVISIONS
6.1 Entire Agreement. The parties have read this Agreement and agree to be bound by
all of its terms, and further agree that it constitutes the complete and exclusive
statement of the Agreement between the parties and supersedes all prior negotiations,
representations, or agreements, either written or oral. This Agreement may only be
amended in writing and signed by duly authorized officers of County and the YMCA.
6.2 Waiver. The failure of either party to exercise any of its rights under this Agreement
for a breach thereof shall not be deemed to be a waiver of such rights, and no waiver
by either party, whether written or oral, express or implied, of any rights under or
arising from the Agreement shall be binding on any subsequent occasion; and no
concession by either party shall be treated as an implied modification of the
Agreement unless specifically agreed in writing.
Page 7 of 10
6.3 Assignment. The YMCA shall not sell, transfer, assign, or otherwise dispose of any
rights or obligations created by this Agreement or any portion thereof without the
written consent of County. Except as herein otherwise expressly provided, all
covenants, agreements, provisions, and conditions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective successors in
interest and assigns.
6.4 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
County or the YMCA.
6.5 Severance Clause. In the event any provision of this Agreement is adjudged to be not
enforceable or found invalid, such provision shall be stricken and the remaining
provisions shall be valid and enforceable.
6.6 Survival of Certain Terms. All provisions of this Agreement which by their terms
provide for or contemplate obligations or duties of a party which are to extend beyond
the expiration or termination of this Agreement (and the corresponding rights of the
other party to enforce or receive the benefit of such obligations or duties), shall
survive such expiration or termination.
6.7 Governing Law and Venue. This Agreement shall be governed by the laws of the
State of North Carolina. Any action or proceeding arising under this Agreement shall
be filed and heard in the Superior Court of Harnett County.
6.8 Taxes. County shall not be responsible for, nor indemnify the YMCA for any federal,
state, or local taxes which may be imposed or levied upon the subject matter of this
Agreement.
6.9 Indemnification. The YMCA agrees to defend, indemnify, and hold harmless
County, its employees and agents from and against all losses, claims, damages, bodily
injury, including death or property damage, liabilities, whether joint or several,
expenses (including reasonable attorney's fees), judgements, fines, and other amounts
paid in settlement, incurred or suffered by any such person or entity arising out of or
in connection with any negligent act, omission, or willful misconduct by the YMCA
or its employees or agents in connection with the performance by the YMCA or its
employees or agents of obligations under this Agreement or the operation of the
YMCA Facility.
6.10 Notices. Any notice on either of the parties required or permitted under this
Agreement shall be deemed to have been duly given on the date of service if served
personally on, or delivered by a recognized overnight delivery service to, the party to
whom notice is to be given or on the third day after mailing if mailed to the party to
whom notice is given by certified mail, first class, postage prepaid and addressed as
follows:
Page 8 of 10
TO COUNTY:
Paula Stewart
Interim County Manager
Post Office Box 759
Lillington, North Carolina 27546
With copy to:
Monica L. Jackson
Senior County Staff Attorney
Post Office Box 238
Lillington, North Carolina 27546
TO YMCA:
rr � pct
4:--;.i&-1-16,1,0d ?'1r
6503
6.11 E -Verify Compliance. The YMCA understands that E -Verify is the federal 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 in accordance with
§64-25(5) of the North Carolina General Statutes. Provided that the YMCA is a
person, business entity, or other organization that transacts business in this State and
that employs 25 or more employees in this State, then the YMCA understands and
certifies that they shall verify the work authorization of the employee through E -
Verify in accordance with §64-26(a) of the North Carolina General Statutes. The
YMCA further certifies that their subcontractors comply with E -Verify pursuant to
federal law, and the YMCA will ensure compliance with E -Verify by any
subcontractors subsequently hired by the YMCA.
Page 9 of 10
IN WITNESS WHEREOF, County and the YMCA have caused this Agreement to be
duly executed as of the day and year first written above.
ATTEST:
ATTEST:
°
ame & Title]
COUNTY OF HARNETT
By:
G rdon Sp- n_ Ch an
Board of Commissioners
YOUNG MEN'S CHRISTIAN
ASSOCIATION OF THE SANDHILLS
By:�
Rick Houp , CEO
Young Men's Christian
Association of the Sandhills
Page 10 of 10
[HIS INSTRUMENT HAS BEEN REVIEWED
THE FIN NC • FFICER
i! L ill!, I!_
HARNETT COUNTY INANCE OFFIC•
-31-18