Loading...
HomeMy WebLinkAbout32717COUNTY OF FRESNO Fresno, CA -1 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FACILITY USE AGREEMENT This FACILITY USE AGREEMENT (hereinafter “AGREEMENT”) is made and entered into this _______ day of _____________, 2018, by and between the COUNTY OF FRESNO, a political subdivision of the State of California, 333 W. Pontiac Way, Clovis, CA 93612, (hereinafter “COUNTY”), and CITY OF FRESNO, for and on behalf of the Fresno Police Department, whose address is 2323 Mariposa Street, Fresno, CA 93721 (hereinafter “CITY”). COUNTY and CITY may, hereinafter, be referred to collectively as “Parties” or individually as “Party”. W I T N E S S E T H: WHEREAS, COUNTY owns the building located at 1925 E. Dakota Ave., Fresno, CA 93726 (hereinafter “Building”); and WHEREAS, COUNTY and CITY have reached an agreement that the Fresno Police Department will operate the Fresno Metro Crisis Intervention Team, as provided herein; and WHEREAS, the Board of Supervisors of Fresno County hereby finds that the operation of the Fresno Metro Crisis Intervention Team, which provides a system for law enforcement staff and psychiatric health services to collaborate when handling certain mental health crises, is a necessary mental health program that will meet the health needs of Fresno County residents and is in the public interest; WHEREAS, CITY needs office space within the Building in order to operate the Fresno Metro Crisis Intervention Team; and WHEREAS, COUNTY finds that the crisis services, post-crisis follow up services, community and law enforcement training, education and outreach to be provided by Fresno Police Department in such office space will not substantially conflict or interfere with the use of the Building by COUNTY and desires to enter into this AGREEMENT with CITY to allow for the ongoing operation of the Fresno Metro Crisis Intervention Team’s services conducted in the Building by Fresno Police Department; NOW, THEREFORE, in consideration of the mutual promises, covenants and conditions hereinafter contained, the sufficiency and receipt of which are hereby acknowledged by the parties, Agreement No. 18-075 6th March COUNTY OF FRESNO Fresno, CA -2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 such parties, and each of them, do agree as follows: 1.PREMISES – The premises for the License (defined below) are approximately Three- Hundred (300) square feet of space at the location commonly known as 1925 E. Dakota Ave., Fresno, CA 93726 as shown in Exhibit “A”, which is attached hereto and by this reference incorporated herein (hereinafter “Premises”). 2.LICENSE – COUNTY hereby grants a temporary license, subject to the terms and conditions set forth in this AGREEMENT, for CITY, by and through the Fresno Police Department, to use the Premises as provided herein. This AGREEMENT is not a lease and does not confer upon CITY, including the Fresno Police Department, a possessory interest in the Premises, or any portion thereof. This AGREEMENT will expire no later than June 30, 2022, as described in Section 2, below. CITY acknowledges and agrees that the license granted herein constitutes a limited, revocable, non- possessory and non-assignable privilege to use the Premises solely for those permitted activities expressly identified in this AGREEMENT (the “License”). CITY further acknowledges and agrees that the License is subject to all of the following: •The consideration by CITY, as identified in this AGREEMENT, which includes the absence of monetary consideration, is consistent with the value of rights comprising this AGREEMENT and that this consideration is not consistent with higher market value for a greater right, privilege or interest (such as a lease) in the Premises or similarly situated parcels. •CITY is not a tenant or lessee of COUNTY and holds no rights of tenancy or leasehold in relation to the Premises. •This AGREEMENT and/or any prior acts or omissions of COUNTY and/or any future omissions of COUNTY, shall not create (or be construed as creating) a leasehold, tenancy or any other interest in the property. •COUNTY may terminate this AGREEMENT and revoke the License at any time, subject, if applicable, to notice periods within this AGREEMENT. •In consideration of COUNTY’s grant of the License, CITY specifically and expressly waives, releases and relinquishes any and all right(s) to assert any claim of right, COUNTY OF FRESNO Fresno, CA -3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 privilege or interest in the Premises other than the License. •CITY further acknowledges and agrees that without the representations and the agreements set forth herein, COUNTY would not enter into this AGREEMENT. 3.TERM AND REVOCATION - The term of this AGREEMENT shall be effective beginning on the first date of occupancy by Fresno Police Department through June 30, 2020, unless terminated earlier as provided herein. The first date of occupancy shall be confirmed in writing between the COUNTY and CITY. Effective July 1, 2020, this AGREEMENT will automatically renew for one-year. Should such renewal take place, effective July 1, 2021, this AGREEMENT will automatically renew for one-year. Such automatic renewals of this AGREEMENT are limited to a maximum of two (2), one (1) year periods and shall be upon the same terms and conditions herein set forth, unless either COUNTY or CITY provides written notice of non-renewal to the other Party no later than sixty (60) days prior to June 30 of each year. In no event shall the term of this AGREEMENT extend beyond June 30, 2022. Notwithstanding anything to the contrary herein, COUNTY shall have the absolute right to terminate this AGREEMENT and/or revoke the License at any time and for any reason or for no reason. As to COUNTY, the Director of Internal Services or the Director of the Department of Behavioral Health may provide written notice of confirmation of first date of occupancy by Fresno Police Department occupancy or the renewal of this AGREEMENT, including the License, and/or non- renewal, revocation, or termination of this AGREEMENT, including the License. 4.CONSIDERATION -There is no monetary consideration for this AGREEMENT. COUNTY acknowledges as adequate consideration for the AGREEMENT is for the CITY, through the Fresno Police Department, to use the Premises and provide Fresno Metro Crisis Intervention Team Services. Such consideration, in addition to the mutual promises and covenants made herein by the Parties, is deemed by the Parties to be sufficient consideration for this AGREEMENT. 5.UTILITIES - COUNTY shall be responsible for electricity, natural gas, water, sewer, garbage, and telephone costs. /// COUNTY OF FRESNO Fresno, CA -4 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6.USE – CITY may use the Premises twenty-four (24) hours per day every day of the year to provide the CITY’s services that are part of the Fresno Metro Crisis Intervention Team Services. CITY agrees to not commit, suffer or permit any waste or nuisance on the Premises, and not to use or permit the use of the Premises for any illegal or immoral purposes. CITY further agrees to comply with all state laws, local ordinances and other governmental regulations which may be required by any governmental authorities with respect to CITY’s use of the Premises and exercise of the License. COUNTY shall make the Premises available in “as is” condition as of the first date of occupancy by Fresno Police Department, except as expressly provided in this AGREEMENT. Prior to the execution of this AGREEMENT, CITY shall visit the Premises and by its independent determination confirm that the Premises are suitable for its use. 7.MAINTENANCE AND REPAIRS OF PREMISES - COUNTY shall be responsible for the structural condition of the Premises and for all exterior and interior maintenance, including but not limited to, the air conditioning, heating, plumbing, roof, painting, landscaping and parking lot. COUNTY covenants that the Premises shall be maintained in substantially the same condition as that existing at the commencement of this AGREEMENT, less reasonable wear and tear. CITY shall report damages to the Premises within twenty-four (24) hours after they occur to the Director of the Department of Behavioral Health. CITY shall be responsible to pay for all damages caused by the actions of CITY’s employees, agents, contractors and invitees. 8.IMPROVEMENTS TO THE PREMISES - If CITY desires to make improvements to the Premises, CITY shall provide drawings and plans describing the improvements to the Director of the Department of Behavioral Health for his or her requested review and approval; such approval, if any is given, is only for purposes of determining whether such improvements are compatible with COUNTY’s use of the Building, and shall in no way bind COUNTY as a governmental agency, or serve as a representation that said improvements comply with any applicable CITY, COUNTY, or State building requirements, other legal requirements. In the event an improvement is approved, CITY shall advance to COUNTY all costs associated with any such improvement, including, but not limited to, labor, materials, equipment, and clean-up. The construction of any and all improvements to the COUNTY OF FRESNO Fresno, CA -5 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Premises shall be performed only by COUNTY or its approved agent. Notwithstanding anything to the contrary herein, upon the termination of this Agreement, including the License, CITY shall not have the right to remove any such improvements. 9.NOTICES - All notices to be given under this AGREEMENT by either Party to the other Party shall be in writing, and given by any one of the following methods: Personal delivery; (i)Sent by certified United States mail, first class postage prepaid, with return receipt requested, to the applicable addresses as set forth below, in which case such notice shall be deemed given three (3) business days if COUNTY is the recipient, or three (3) business days if CITY is the recipient, after such deposit and postmark with the United States Postal Service; (ii)Sent by a reputable overnight commercial courier, in which case such notice shall be deemed given one (1) business day if COUNTY is the recipient, or one (1) business day if CITY is the recipient, after such deposit with that courier to the applicable addresses as set forth below; or (iii)Sent by facsimile to the applicable telephone number set forth below, provided that the Party sending such notice retains a legible written copy of documents transmitted and a legible, accurate, written confirmation of the time and date that such facsimile was transmitted (it being agreed that the burden of proving timely receipt will be on the Party sending such notice, and that if such sending Party’s confirming document contains an inaccurate time or date, it shall be deemed to have been received by the other Party at 9:00 a.m. on the next succeeding business day if COUNTY is the recipient, or on the next succeeding business day if CITY is the recipient, after transmission), and provided further that if such transmission is otherwise completed in compliance with this Section after 5:00 p.m. on any day, it shall not be deemed given until the next succeeding business day if COUNTY is the recipient of such notice, or until the next succeeding business day if CITY is the recipient of such notice. The addresses and telephone numbers of the Parties for purposes of giving receiving notices under this AGREEMENT are as follows: /// /// COUNTY OF FRESNO Fresno, CA -6 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Provided however, such notices may be given to such person or at such other place as either of the Parties may from time to time designate by giving written notice to the other Party, and provided further however, in any event notices of changes of address, facsimile numbers, revocation, or termination of this AGREEMENT shall not be effective until actual delivery of such notice. Notices given hereunder shall not be amendments or modifications to this AGREEMENT. For all claims arising out of or related to this AGREEMENT, nothing in this section establishes, waives, or modifies any claims presentation requirements or procedures provided by law, including but not limited to the Government Claims Act (Division 3.6 of Title 1 of the Government Code, beginning with section 810). 10.HOLD HARMLESS – CITY agrees to indemnify, save, hold harmless, and at COUNTY'S request, defend the COUNTY, its officers, agents, and employees from any and all costs and expenses (including attorney’s fees and costs), damages, liabilities, claims, and losses occurring or resulting to COUNTY in connection with the performance, or failure to perform, by CITY, its officers, agents, or employees under this AGREEMENT, and from any and all costs and expenses (including attorney’s fees and costs), damages, liabilities, claims, and loses occurring or resulting to any person, firm, or corporation who may be injured or damaged by the performance, or failure to perform of CITY, its officers, agents, or employees under this AGREEMENT. The parties acknowledge that as between COUNTY and CITY each is responsible for the negligence of its own employees and invitees. The provisions of this Section 10 shall survive the termination of this Agreement and/or the revocation of the License. 11.INSURANCE – Without limiting the COUNTY’S right to obtain indemnification from CITY or any third parties, CITY, at its sole expense, shall maintain in full force and effect, the COUNTY: CITY: County of Fresno City of Fresno Director of Internal Services 333 W. Pontiac Way Clovis, CA 93612 Facsimile: 600-5927 Chief of Police 2323 Mariposa Street Fresno, CA 93721 Facsimile: 621-5069 COUNTY OF FRESNO Fresno, CA -7 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 following insurance policies or a program of self-insurance, throughout the term of this AGREEMENT: a.Commercial General Liability - Commercial General Liability Insurance with limits of not less than One Million Dollars ($1,000,000) per occurrence and an annual aggregate of Two Million ($2,000,000). This policy shall be issued on a per occurrence basis. COUNTY may require specific coverages including completed operations, products liability, contractual liability, Explosion-Collapse-Underground, fire legal liability, or any other liability insurance deemed necessary because of the nature of this contract. b.Automobile Liability - Comprehensive Automobile Liability Insurance with limits for bodily injury of not less than Two Hundred Fifty Thousand Dollars ($250,000) per person, One Million Dollars ($1,000,000) per accident and for property damages of not less than Fifty Thousand Dollars ($50,000), or such coverage with a combined single limit of Two Million Dollars ($2,000,000). Coverage should include owned and non-owned vehicles used in connection with this Agreement. c.Worker’s Compensation - A policy of Worker’s Compensation insurance may be required by the California Labor Code. d.Professional Liability Insurance - If CITY employs professional law enforcement staff in providing services, Law Officers Legal and Professional Liability with limits of not less than One Million ($1,000,000) Dollars per occurrence, Three Million $3,000,000) Dollars annual aggregate . e.Child Abuse/Molestation Liability Coverage – CITY shall have either separate policies or umbrella policy with endorsements covering Child Abuse/Molestation and Social Services Liability coverage or have a specific endorsement on their General Commercial liability policy covering Child Abuse/Molestation and Social Services Liability. The policy limits for these policies shall be $1,000,000 per occurrence with $2,000,000 annual aggregate. The policies are to be on a per occurrence basis. /// COUNTY OF FRESNO Fresno, CA -8 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CITY shall obtain endorsements to the Commercial General Liability insurance naming the County of Fresno (hereinafter “County”), its officers, agents, and employees, individually and collectively, as additional insured, but only insofar as the operations under this AGREEMENT are concerned. Such coverage for additional insured shall apply as primary insurance and any other insurance, or self-insurance, maintained by, County, its officers, agents, and employees shall be excess only and not contributing with insurance provided under CITY’s policies herein. This insurance shall not be cancelled or changed without a minimum of thirty (30) days advance written notice given to County. Within (30) days from date CITY executes this AGREEMENT, CITY shall provide certificates of insurance and endorsement as stated above for all of the foregoing policies, as required herein, to the COUNTY, Attn: ISD Lease Services (FL-135), 333 W. Pontiac Way, Clovis, CA 93612, stating that such insurance coverages have been obtained and are in full force; that COUNTY, its officers, agents and employees will not be responsible for any premiums on the policies; that such Commercial General Liability insurance names the County, its officers, agents, and employees, individually and collectively, as additional insured, but only insofar as the operations under this AGREEMENT are concerned; that such coverage for additional insured shall apply as primary insurance and any other insurance, or self- insurance shall not be cancelled or changed without a minimum of thirty (30) days advance, written notice given to COUNTY. In the event CITY fails to keep in effect at all times insurance coverage as herein provided, the COUNTY may, in addition to other remedies it may have, suspend, revoke or terminate this AGREEMENT upon the occurrence of such event. All policies shall be with admitted insurers licensed to do business in the State of California. Insurance purchased shall be purchased from companies possessing a current A.M. Best Company rating of A FSC VII or better. COUNTY shall maintain during the term of this AGREEMENT the following policies of insurance, which coverages may be provided in whole or in part through one or more programs of self- insurance: a. Commercial General liability insurance with limits of not less than One Million COUNTY OF FRESNO Fresno, CA -9 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dollars ($1,000,000.00) per occurrence and an annual aggregate of not less than Two Million Dollars ($2,000,000.00). This policy shall be issued on an occurrence basis. b.All-Risk property insurance. 12.INDEPENDENT CONTRACTOR - In performance of the work, duties and obligations assumed CITY under this AGREEMENT, it is mutually understood and agreed that CITY, including any and all of the CITY officers, agents, and employees will at all times be acting and performing as an independent contractor, and shall act in an independent capacity and not as an officer, agent, servant, employee, joint venture, partner, or associate of the COUNTY. Furthermore, COUNTY shall have no right to control or supervise or direct the manner or method by which CITY shall perform its work and function. However, COUNTY shall retain the right to administer monitor this AGREEMENT so as to verify that CITY is performing its obligations in accordance with the terms and conditions of the AGREEMENT. COUNTY and CITY shall comply with all applicable provisions of law and the rules and regulations, if any, of governmental authorities having jurisdiction over matters the subject thereof. Because of its status as an independent contractor, CITY shall have absolutely no right to employment rights and benefits available to COUNTY'S employees. CITY shall be solely liable and responsible for providing to, or on behalf of, its employees all legally-required employee benefits. In addition, CITY shall be solely responsible and save COUNTY harmless from all matters, except for COUNTY and COUNTY’S employee’s gross negligence and/or willful misconduct, relating to payment of CITY employees, including compliance with Social Security withholding and all other regulations governing such matters. 13.EXPIRATION OF AGREEMENT - Upon the expiration, revocation or termination of this AGREEMENT, CITY will leave the Premises to COUNTY in such condition as existing at the commencement of this AGREEMENT less reasonable wear and tear. CITY will not be responsible for any damage which CITY was not obligated hereunder to repair. 14.FIXTURES - CITY agrees that any equipment, fixtures or apparatus installed in or on the Premises by CITY shall become the property of COUNTY at the time of installation and may not be removed by CITY at any time. COUNTY OF FRESNO Fresno, CA -10 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15.POSSESSORY INTEREST TAX – The underlying License is provided to the CITY, a governmental entity. However, should it ever be determined that that there is a possessory interest, CITY agrees to pay any possessory interest tax (property tax) which may be levied upon the Premises. In this respect, CITY understands that a leasehold interest of property, should it be determined that such an interest exists, owned by a tax exempt public agency, such as the County of Fresno, may be subject to property taxation and CITY (the person in whom it may be determined the possessory interest is vested) will then be subject to the payment of property taxes levied on such interest. 16.RIGHT OF ENTRY - COUNTY, or its representative(s), shall have the right to enter the Premises at any time and for any reason with reasonable notice, to make any alterations, repairs or improvements to the Premises. The normal business of CITY or its invitees shall not be unnecessarily inconvenienced. 17.AMENDMENT - This AGREEMENT may be amended in writing by the mutual consent of the parties without in any way affecting the remainder. 18.NON-ASSIGNMENT – The License granted by COUNTY to CITY herein is personal only to CITY. CITY may not assign, transfer or sub-contract this AGREEMENT nor its rights or duties under this AGREEMENT, including the License, without the prior written consent of the COUNTY. Any such assignment, transfer or sub-contract this AGREEMENT, including CITY’s rights or duties under this AGREEMENT, including the License, without such consent shall render such action void. 19.GOVERNING LAW - Venue for any action arising out of or relating to this AGREEMENT shall be in Fresno County, California. This AGREEMENT shall be governed by the laws of the State of California. 20.DISCLOSURE OF SELF DEALING TRANSACTIONS - This provision is only applicable if the CITY is operating as a corporation (a for-profit or non-profit corporation) or if during the term of this AGREEMENT, the CITY changes its status to operate as a corporation. Members of CITY’s Board of Directors shall disclose any self-dealing transactions that they are a party to while CITY is providing goods or performing services under this AGREEMENT. A self- dealing transaction shall mean a transaction to which the CITY is a party and in which one or more of its directors has a material financial interest. Members of the Board of Directors shall disclose any self- COUNTY OF FRESNO Fresno, CA -11 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 dealing transactions that they are a party to by completing and signing a Self-Dealing Transaction Disclosure Form (Exhibit “B”) and submitting it to the County of Fresno prior to commencing with the self-dealing transaction or immediately thereafter. 21.AUTHORITY - CITY represents and warrants that that individual executing this AGREEMENT on behalf of CITY is duly authorized to execute and deliver this AGREEMENT on behalf of CITY and that this AGREEMENT is binding upon CITY in accordance with its terms. 22.ENTIRE FACILITY USE AGREEMENT - This AGREEMENT constitutes the entire agreement between the COUNTY and CITY with respect to the subject matter hereof, and supersedes all prior agreements, whether oral or written, negotiations, proposals, commitments, writings, advertisements, publications, and understandings of any nature whatsoever, unless expressly referenced in this AGREEMENT. /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// 1 EXECUTED as of the date first herein written. 2 3 4 CITY: CITY OF FRESNO By _____________ _ 5 Jerry P. Dyer, Chief of Police 6 7 8 9 10 11 12 13 14 15 16 17 Address: Date ------------- Fund: 0001 Subs: 10000 18 Org No. 56302007 Acct. No. 7295 19 20 21 22 23 24 25 26 27 28 FL-134/FRESNOPD/DBH5630 COUNTY: COUNTY OF FRESNO \ ATTEST: Bernice E. Seidel Clerk to the Board of Supervisors County of Fresno, State of California By: ci),,l)L. ~ Deputy -12 -COUN1Y OF FRESNO Fresno, CA Exhibit A Exhibit L 1 SELF-DEALING TRANSACTION DISCLOSURE FORM In order to conduct business with the County of Fresno (hereinafter referred to as “County”), members of a contractor’s board of directors (hereinafter referred to as “County Contractor”), must disclose any self-dealing transactions that they are a party to while providing goods, performing services, or both for the County. A self-dealing transaction is defined below: “A self-dealing transaction means a transaction to which the corporation is a party and in which one or more of its directors has a material financial interest” The definition above will be utilized for purposes of completing this disclosure form. INSTRUCTIONS (1) Enter board member’s name, job title (if applicable), and date this disclosure is being made. (2) Enter the board member’s company/agency name and address. (3) Describe in detail the nature of the self-dealing transaction that is being disclosed to the County. At a minimum, include a description of the following: a. The name of the agency/company with which the corporation has the transaction; and b. The nature of the material financial interest in the Corporation’s transaction that the board member has. (4) Describe in detail why the self-dealing transaction is appropriate based on applicable provisions of the Corporations Code. (5) Form must be signed by the board member that is involved in the self-dealing transaction described in Sections (3) and (4). Exhibit L 2 (1) Company Board Member Information: Name: Date: Job Title: (2) Company/Agency Name and Address: (3) Disclosure (Please describe the nature of the self-dealing transaction you are a party to) (4) Explain why this self-dealing transaction is consistent with the requirements of Corporations Code 5233 (a) (5) Authorized Signature Signature: Date: