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HomeMy WebLinkAbout328441 2 AGREEMENT -3 THIS AGREEMENT is made and entered into this I :l. i�ay of J v /\ e..., 2018, by and between the 4 COUNTY OF FRESNO, a Political Subdivision of the State of California, hereinafter referred to as 5 "COUNTY", and the Veterans Memorial Museum, a non-profit public benefit corporation, whose address is 6 2425 Fresno Street, Fresno, California 93721, hereinafter referred to as "CONTRACTOR". 7 W I T N E S S E T H: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 WHEREAS, the CONTRACTOR is an association of those whose valor has been recognized by award of our nation's two highest decorations: The Medal of Honor of the Navy, Army or Air Force; or the Army Distinguished Service Cross, Navy Cross or Air Force Cross; and WHEREAS, organized on April 23, 1890, the CONTRACTOR is the nation's senior organization of veterans chartered by public law 224, an act of Congress, and approved by the President on August 4, 1955;and WHEREAS, the CONTRACTOR operates the Fresno Veteran's Memorial Building, which is physically located at 2425 Fresno Street, Fresno, California, and is dedicated to displaying objects associated with our country's wars of the past; and WHEREAS, since its beginning, the CONTRACTOR has concentrated on recognizing all military veterans of all wars, with emphasis on those that have either joined the service from Fresno County, or presently reside here; and WHEREAS, a corridor of flags recognizing each of the U.S. Military Services and Fresno County veterans groups has been put on display along the entry to the Fresno Veteran's Memorial Building and a "Lobby of Honor" displays medals with a listing of the Fresno County recipients; and WHEREAS, the COUNTY is desirous of honoring Fresno County's veterans and preserving its military history through partially funding the CONTRACTOR herein. 26 NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions herein 27 contained, the parties hereto agree as follows: 28 1.OBLIGATIONS OF THE CONTRACTOR -1- Agreement No. 18-319 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 A.The CONTRACTOR will devote and expend the COUNTY's funds herein for the promotion, improvement operation or maintenance of the Veteran's Memorial Building located in Fresno. California, with the continued recognition of all veterans of all wars with special emphasis for those that have either joined the service from Fresno County or presently reside here. CONTRACTOR shall keep records of expenditures related to the aforementioned activities. 2.OBLIGATIONS OF THE COUNTY A.COUNTY shall provide funding to the CONTRACTOR in the amount of $20,000. Said amount shall be paid following execution of this Agreement, allocation of adequate funds by the Board of Supervisors for the fiscal year beginning July 1, 2018 and receipt of a valid and pro per invoice sent to: The Fresno County Administrative Office, 2281 Tulare Street, Room 304, Fresno, CA 93721 . 3.TERM The term of this Agreement shall be from July 1, 2018, to and including June 30, 2019, unless it is earlier terminated as provided herein. The County Administrative Officer or his or her designee is authorized to execute such written approval on behalf of COUNTY based on CONTRACTOR'S satisfactory performance. 4.TERMINATION A.Non-Allocation of Funds -The terms of this Agreement, and the services Jo be provided hereunder, are contingent on the approval of funds by the appropriating government agency. Should sufficient funds not be allocated, the services provided may be modified, or this Agreement terminated, at any time by giving the CONTRACTOR thirty (30) days advance written notice. 8.Breach of Contract -The COUNTY may immediately suspend or terminate this Agreement in whole or in part, where in the determination of the COUNTY there is: 1) 2) 3) 4) An illegal or improper use of funds; A failure to comply with any term of this Agreement; A substantially incorrect or incomplete report submitted to the COUNTY; Improperly performed service. -2- 1 In no event shall any payment by the COUNTY constitute a waiver by the COUNTY of any breach 2 of this Agreement or any default which may then exist on the part of the CONTRACTOR. Neither shall such 3 payment impair or prejudice any remedy available to the COUNTY with respect to the breach or default. 4 The COUNTY shall have the right to demand of the CONTRACTOR the repayment to the COUNTY of any 5 funds disbursed to the CONTRACTOR under this Agreement, which in the judgment of the CO UNTY were 6 not expended in accordance with the terms of this Agreement. The CONTRACTOR shall promptly refund 7 any such funds upon demand. 8 C.Without Cause -Under circumstances other than those set forth above, this 9 Agreement may be terminated by COUNTY upon the giving of thirty (30) days advance written notice of an 10 intention to terminate to CONTRACTOR. 11 5.COMPENSATION/INVOICING: COUNTY agrees to pay CONTRACTOR and 12 CONTRACTOR agrees to receive compensation as follows: $20,000 (twenty thousand dollars). 13 In no event shall services performed under this Agreement be in excess of $20,000 during the term 14 of this Agreement. It is understood that all expenses incidental to CONTRAC TOR'S performance of 15 services under this Agreement shall be borne by CONTRACTOR. 16 6.INDEPENDENT CONTRACTOR: In performance of the work, duties and obligations 17 assumed by CONTRACTOR under this Agreement, it is mutually understood and agreed that 18 CONTRACTOR, including any and all of the CONTRACTOR'S officers, agents, and employees will at all 19 times be acting and performing as an independent contractor, and shall act in an independent capacity and 20 not as an officer, agent, servant, employee, joint venturer, partner, or associate of the COUNTY. 21 Furthermore, COUNTY shall have no right to control or supervise or direct the manner or method by which 22 CONTRACTOR shall perform its work and function. However, COUNTY shall retain the right to administer 23 this Agreement so as to verify that CONTRACTOR is performing its obligations in accordance with the 24 terms and conditions thereof. 25 CONTRACTOR and COUNTY shall comply with all applicable provisions of law and the rules and 26 regulations, if any, of governmental authorities having jurisdiction over matters the subject there of. 27 Because of its status as an independent contractor, CONTRACTOR shall have absolutely no right 28 to employment rights and benefits available to COUNTY employees. CONTRACTOR shall be solely liable -3- 1 and responsible for providing to, or on behalf of, its employees all legally-required employee benefits. In 2 addition, CONTRACTOR shall be solely responsible and save COUNTY harmless from all matters relating 3 to payment of CONTRACTOR'S employees, including compliance with Social Security withholding and all 4 other regulations governing such matters. It is acknowledged that during the term of this Agreement, 5 CONTRACTOR may be providing services to others unrelated to the COUNTY or to this Agreement. 6 7.MODIFICATION: Any matters of this Agreement may be modified from time to time by the 7 written consent of all the parties without, in any way, affecting the remainder. 8 8.NON-ASSIGNMENT: Neither party shall assign, transfer or sub-contract this Agreement 9 nor their rights or duties under this Agreement without the prior written consent of the other party. 10 9.HOLD HARMLESS: CONTRACTOR agrees to indemnify, save, hold harmless, and at 11 COUNTY'S request, defend the COUNTY, its officers, agents, and employees from any and all costs and 12 expenses (including attorney's fees and costs), damages, liabilities, claims, and losses occurring or 13 resulting to COUNTY in connection with the performance, or failure to perform, by CONTRACTOR, its 14 officers, agents, or employees under this Agreement, and from any and all costs and expenses (including 15 attorney's fees and costs), damages, liabilities, claims, and losses occurring or resulting to any person, firm, 16 or corporation who may be injured or damaged by the performance, or failure to perform, of 17 CONTRACTOR, its officers, agents, or employees under this Agreement. 18 10.INSURANCE 19 Without limiting the COUNTY's right to obtain indemnification from CONTRACTOR or any third 20 parties, CONTRACTOR, at its sole expense, shall maintain in full force and effect, policies of insurance in 21 sufficient amounts to cover CONTRACTOR's liabilities related to General Liability, Automobile and 22 Worker's Compensation. This insurance shall not be cancelled or changed without a minimum of thirty (30) 23 days advance written notice given to COUNTY. 24 Within Thirty (30) days from the date CONTRACTOR signs and executes this Agreement, 25 CONTRACTOR shall provide certificates of insurance and endorsement as stated above for all of the 26 foregoing policies, as required herein, to the County of Fresno, County Administrative Officer, 2281 Tulare 27 Street, Room 304, Fresno, California 93721 stating that such insurance coverage have been obtained and 28 are in full force; that the County of Fresno, its officers, agents and employees will not be responsible for any -4- 1 premiums on the policies and that this insurance shall not be cancelled or changed without a minimum of 2 thirty (30) days advance, written notice given to COUNTY. 3 In the event CONTRACTOR fails to keep in effect at all times insurance coverage as herein 4 provided, the COUNTY may, in addition to other remedies it may have, suspend or terminate this 5 Agreement upon the occurrence of such event. 6 All policies shall be issued by admitted insurers licensed to do business in the State of California, 7 and such insurance shall be purchased from companies possessing a current A.M. Best, Inc. rating of A 8 FSC VII or better. 9 11.AUDITS AND INSPECTIONS: The CONTRACTOR shall at any time during business 10 hours, and as often as the COUNTY may deem necessary, make available to the COUNTY for examination 11 all of its records and data with respect to the matters covered by this Agreement. The CONTRACTOR 12 shall, upon request by the COUNTY, permit the COUNTY to audit and inspect all of such records and data 13 necessary to ensure CONTRACTOR'S compliance with the terms of this Agreement. 14 If this Agreement exceeds ten thousand dollars ($10,000.00), CONTRACTOR shall be subject to 15 the examination and audit of the Auditor General for a period of three (3) years after final payment under 16 contract (Government Code Section 8546.7). 17 12.NOTICES: The persons and their addresses having authority to give and receive notices 18 under this Agreement include the following: 19 20 21 COUNTY County of Fresno County Administrative Officer 2281 Tulare Street, Room 304 Fresno, CA 93721 CONTRACTOR Veterans Memorial Museum 2425 Fresno Street Fresno, CA 93721 22 All notices between the COUNTY and CONTRACTOR provided for or permitted under this 23 Agreement must be in writing and delivered either by personal service, by first-class United States mail, by 24 an overnight commercial courier service, or by telephonic facsimile transmission. A notice deli vered by 25 personal service is effective upon service to the recipient. A notice delivered by first-class United States 26 mail is effective three COUNTY business days after deposit in the United States mail, postage prepaid, 27 addressed to the recipient. A notice delivered by an overnight commercial courier service is effective one 28 COUNTY business day after deposit with the overnight commercial courier service, delivery fees prepaid, -5- 1 with delivery instructions given for next day delivery, addressed to the recipient. A notice delivered by 2 telephonic facs imile is effective when transmission to the recipient is completed (but, if such transmission is 3 completed outside of COUNTY business hours, then such delivery shall be deemed to be effective at the 4 next beginning of a COUNTY business day), provided that the sender maintains a machine record of the 5 completed trans mission. For all claims arising out of or related to this Agreement, nothing in this section 6 establishes, waives, or modifies any claims presentati on requirements or procedures provided by law, 7 including but not limited to the Government Claims Act (Division 3.6 of Title 1 of the Government Code, 8 beginning with section 810). 9 13.GOVERNING LAW: Venue for any action arising out of or related to this Agreement shall 10 only be in Fresno County, California. 11 The rights and obligations of the parties and all interpretation and performance of this Agreement 12 shall be governed in all respects by the laws of the State of California. 13 14.DISCLOSURE OF SELF-DEALING TRANSACTIONS 14 This provision is only applicable if the CONTRACTOR is operating as a corporation (a for-profit 15 or non-profit corporation) or if during the term of the agreement, the CONTRACTOR changes its status 16 to operate as a corporation. 17 Members of the CONTRACTOR's Board of Directors shall disclose any self-dealing transactions 18 that they are a party to while CONTRACTOR is providing goods or performing services under this 19 agreement. A self-dealing transaction shall mean a transaction to which the CONTRACTOR is a party 20 and in which one or more of its directors has a material financial interest. Members of the Board of 21 Directors shall disclose any self-dealing transactions that they are a party to by completing and signing a 22 Self-Dealing Transaction Disclosure Form, attached hereto as Exhibit A and incorporated herein by 23 reference, and submitting it to the COUNTY prior to commencing with the self-dealing transaction or 24 immediately thereafter. 25 15.ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the 26 CONTRACTOR and COUNTY with respect to the subject matter hereof and supersedes all pr evious 27 Agreement negotiations, proposals, commitments, writings, advertisements, publications, and 28 understanding of any nature whatsoever unless expressly included in this Agreement. -6- 1 Ill 2 Ill 3 Ill 4 Ill 5 IN WI TN ESS W HEREOF, the parties hereto have executed this Agreement as of the day and year 6 first hereinabove writte n. 7 8 VETERANS MEMORIAL MUSEUM COUNTY OF FRESNO 9 l~~~~~~~~=------- 10 (Authorized Sig Sa S u 11 12 E e:;/-~ i?C/7~ 070 :?'1,..,;,?~/"' Print Name T itle Vete rans Memorial Museum 13 2425 Fresn o Street , Fresno, Ca lifornia 93721 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mailing Add ress F O R ACCO UNTING USE O NLY: O RG No .: 2540 Account No.: 7845 Requisition No.: ATTEST : Bernice E . Seidel C lerk of the Board of Supervisor s County of Fresno , State of California -7- Exhibit A 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 on e 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 A (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: