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HomeMy WebLinkAboutResources for Independence Central Valley - Universally Accessible Park Operation - 2013tD t?l tqt i5 AGREEMENT BETWEEN CITY OF FRESNO AND RESOURCES FOR INDEPENDENCE CENTRAL VALIEY FOR LEAD AGENCY OPERATION OF UNIVERSALLY ACCESSIBLE PARK q ^oL.r 'rz() bl otr.rIi: I.L C)Oø Ç=oOı () This Agreement is made and entered into this by and between the CITY OF FRESNO, a municipal corporation ("C|TY") and RESOURCES FOR INDEPENDENCE CENTRAL VALLEY a California nonprofit corporation ("USER"). RECITATS A. CITY is the owner of the property located at5770 W. Gettysburg and commonly known as the Universally Accessible Park. As of the date of this Agreement, the Universally Accessible Park is not constructed. The City anticipates that at full build-out the Universally Accessible Park will consist of outdoor play areas and landscaping ("PARK") as well as a community center ("CENTER"). The term "UAP" as defined herein shall refer to the site as a whole and the amenities thereon either now existing or that shall hereafter be constructed, including the PARK and the CENTER. B. CITY's Director of Parks, After-School, Recreation and Community Services ("Director") (including Director's designated representatives) is charged with the responsibility of supervising the use of CITY's parks and recreational facilities. C. USER is organized as a California nonprofit corporation to provide services and encourage people with disabilitiesto be in control of their lives and to live more independently through a diverse range of choices and opportunities. D. USER has an objective of providing community services to the public. E. CITY and USER desire to enter into an Agreement to operate the UAP, pursuant to the terms hereof. F. The right to use and operate the UAP without payment of full fair market value rent conveys a valuable benefit. CITY intends to grant use of certain recreational facilities, such as the UAP, to nonprofits on the condition that the USERS will provide a minimum amount of "Community Services." "Community Services" is broadly defined as including programs, services and activities that are consistent with the CITY's Parks, After-school, Recreation and Community Services Department ("PARCS") mission of creating 'community' through people, parks, and programs by enriching the lives of Fresno citizens through investment in park and open spaces for recreation, and providing diverse opportunities for human development and social interaction. ln light of the foregoing, the parties hereto do hereby agree as follows: AGREEMENT SECTION 1. TERM OF AGREEMENT This Agreement shall be for a term commencing on October 1-,20L3, and expiring no later than September 30, 2OLB, unless sooner terminated pursuant to the provisions of this Agreement. CITY may extend this Agreement by granting up to five (5) one-year extensions to USER. This Agreement may be terminated by the CITY or USER at any time upon ninety (90) days prior written notice to the other party, as further provided herein. Regardless of the date of execution of this Agreement, the effective date shall be October 1,,2013 ("Effective Date"). Except as otherwise provided herein, all rights and duties under this Agreement shall be effective as of the Effective Date. USER understands that the UAP is not currently constructed, and nothing in this Agreement shall obligate CITY to construct the UAP or any particular feature thereof. USER also understands that the UAP may be constructed in phases and that the PARK may be completed and some rights and duties of this Agreement may become effective before the CENTER is constructed. As to those rights and duties that are only effective upon the completion of construction of the PARK or CENTER, CITY shall provide USER thirty (30) days' advance written notice of the effectiveness of those rights and duties upon completion of construction of the PARK or CENTER. SECTION 2. CITY'S OUTSOURCING POLICY A. The UAP is intended to provide Community Services and active and passive recreational opportunities for all residents, including able-bodied and special needs residents of all ages. This Agreement grants certain use and operation of the UAP without payment of facility use fees. ln exchange for the authority to use and operate the UAP as set forth herein, USER agrees to provide, at a minimum, the Community Services identified in this Agreement. USER acknowledges that its agreement to provide at least the minimum level of Community Services and programs to the CITY and the community is a material provision of this Agreement. USER understands that CITY is relying upon USER actually delivering the program of Community Services described herein. B. USER acknowledges and agrees that any religious, political, or any other activity outside the scope of services provided pursuant to this Agreement is subject to a separate agreement to be executed by USER and CITY. C. Although infrequent in their occurrence, from time to time, CITY and USER may receive requests from the public to rent the UAP for an event. The USER will be responsible for any and all rentals of the facility including payments received, insurance and proper staffing for event. Any third party other than CITY or USER that wishes to rent the UAP must do so pursuant to a rental agreement with the USER. The form of rental agreement shall be approved in advance by CITY. USER shall be entitled to collect and retain reservation revenue necessary to reimburse USER for the actual and direct expenses incurred in operating the UAP for the reserved event. Any and all additional revenue shall be turned over to CITY. USER acknowledges that no alcoholic beverages shall be sold, served or furnished during the rental of the UAP. SECTION 3. CONTRACT COMPLIANCE AND MONITORING A. USER shall be subject to the standards of performance as set forth in this Agreement. USER shall submit semi-annual reports regarding USER's performance of the Program and other requirements necessary for CITY to monitor review and evaluate the performance of the USER. USER's reports must be in a form approved bythe CITY. B. Records, Reports and Audits of USER: a. Preservation of Records, USER shall preserve and make available its records: i. For the period of four (4) years from the date of termination or expiration of this Agreement; or ii. For such longer period, if any, as may be required by applicable law. b. Examination of Records. At any time during normal business hours, and as often as may be deemed necessary, USER agrees that the CITY, and/or any of its respective authorized representatives shall, upon reasonable notice, have access to and the right to examine all of USER's records with respect to all matters covered by this Agreement. USER also agrees that the CITY, or any of its authorized representatives shall have the right to audit, examine, and make excerpts or transcripts of and from such records, and to make audits of all applicable contracts and subcontracts, invoices, payrolls, records of personnel, conditions of employment, materials, and all other data relating to matters covered by this Agreement. CITY may examine records pursuant to this Section throughout the term of this Agreement and i. For a period of four (4) years after termination or expiration of this Agreemen! or, ¡i. For such longer period as may be required by applicable law; or iii. lf this Agreement is completely or partially terminated, for a period of four (4) years from the date of any resulting settlement. C. CITY Audits. The CITY may perform an independent audit. Such audits may cover programmatic as well as fiscal matters. USER will be afforded access to the draft and any final audit reports, be afforded an opportunity to respond to any audit findings, and have the responses included in the final audit report. Costs of such audits will be borne by the CITY, unless the audit has been initiated by CITY in response to a default hereunder by USER, in which event USER shall be responsible for the reasonable expenses and costs incurred in connection with such audit. SECTION 4. PROGRAM COORDINATION A. This Section shall become effective upon completion of the PARK. B. Prior to the Effective Date of this Agreement, and each year thereafter during the term of this Agreement, USER shall provide CITY with a draft annual program plan for CITY's approval. Upon approval of the annual program by the CITY, USER (or USER's approved subcontractors) shall offer the Community Services described in the Program to the public in accordance with the approved written plan. C. USER shall comply with the requirement that the UAP shall be made available for the PARCS Senior Hot Meals Program if applicable, and Fresno County EOC Sack Lunch program to provide no-cost snacks andfor lunch during extended school breaks, at no cost, and the USER shall cooperate with the provider of those programs. D. USER represents that USER shall employ, at its sole cost and expense, an administrator who shall act as the director of the Program and shall have overall responsibility for the progress and execution of this Agreement, as well as supervise the operation of the Program. USER shall provide CITY with the contact information for USER's Program Director upon execution of this Agreement. Should circumstances or conditions subsequent to the execution of this Agreement require a substitute Program Director, USER shall notify the CITY immediately of such occurrence. Any change in Program Director will be subject to approval by the CITY. USER's staff, on the one hand, and CITY staff, on the other, shall cooperate fully with each other with respect to all matters related to this Agreement. E. USER's staff shall attend meetings as may reasonably be required or requested by CITY or Director, which except in cases of emergency, shall be scheduled with reasonable notice. F. The parties agree that USER shall be solely responsible for the recruitment, training, supervision and compensation of USER's employees, including Program employees. The parties further agree that USER shall be solely responsible for the recruitment, training and supervision of volunteers to assist in the operation of UAP or the Program. G. USER may contract with third-party non-profit organizations to provide programming at the UAP, however, any such contract shall be subject to advance review and approval by CITY. Review and approval of such programming shall be timely and not u nreasonably withheld. SECTION 5. OPERATION OF CENTER A. This Section shall become effective upon completion of the PARK. B. CITY grants permission to USER to conduct the Program during the term of the Agreement,andpursuanttothetermsofthisAgreement. TheuseoftheUAPbyUSERshall not be exclusive, and CITY shall have the right at all times to enter upon the UAP for any purpose and to use the same for any purpose not inconsistent with USER's obligations hereunder. USER shall not pay facility use fees to CITY for USER's Community Service Program activities which have been expressly approved by CITY, subject to the provisions of this Agreement, provided that other costs and charges as set forth herein, may apply. USER shall have access to the outdoor spaces around the UAP; however, paid reservations made through the CITY for the use of the outdoor spaces shall be given first priority. C. Minimum Hours of Operation. USER shall operate the CENTER at a minimum every Monday through Friday from !2:00 p.m. to 7:00 p.m. with recreational and/or enrichment activities geared toward school aged children, and special needs residents from the surrounding neighborhoods offered during those hours. D, A location-specific program calendar shall be submitted to CITY on a quarterly basis and continuously posted for public display at the UAP. E. Minimum Programming Requirements. USER shall, at a minimum, provide the following: L. Provide daily homework assistance and/or computer lab access with assistive technology 2. Provide a variety of outdoor and indoor recreation activities, (e.g. League of Dreams, Tai Chi for people with disabilities, arts and crafts, board games, table games, youth soccer, baseball). 3. Provide opportunities for community service activities, e.g., neighborhood clean-up, adopt-a-park, etc. Coordinate diverse cultural/holiday activities, e.g., Valentine's, Easter/Spring, Cinco de Mayo, Juneteenth, Fourth of July, Halloween/Harvest, Than ksgiving and Winter Holiday neighborhood celebrations. Provide access for the PARCS Senior Hot Meals Program, if applicable. Continue partnership with Fresno County EOC to provide no-cost snacks and/or lunch during extended school breaks (Sack Lunch Program). Social Recreational Programs through the BRIDGES Program o The requirements in this Section 5.D are required only if and when CENTER is built. F. USER shall report any suspicious or illegal behavior or activity at the UAP or surrounding grounds to appropriate authorities, including timely reporting of any graffiti or vandalism at or affecting the UAP. G. USER shall be responsible for conducting services at the UAP consistent with CITY's policies and procedures for facility operation, including without limitation, nondiscrimination practices and procedures. H. USER's operational obligations shall include reasonable staffing of the UAP and running the Community Service Programs in a manner satisfactory to CITY. USER agrees that a minimum of two (2) staff members shall be on the UAP premises during all hours of operation. Staff members may be employed by another agency as long as there is a contract with the Resources for lndependence Central Valley, and subject to Section 13 of this Agreement and other provisions relating to subcontractors. l. USER agrees that any and all personnel, either paid or volunteer, whom USER utilizes in conducting the Program shall be qualified to perform the duties assigned to them. USER shall provide CITY with job descriptions of all volunteer and paid positions. All UAP personnel shall be neatly attired and shall conduct themselves at all times in a courteous and businesslike manner. 5. 6. 7. J. USER understands and agrees that the permission granted herein by the CITY to USER to use and occupy the UAP is contingent upon the UAP being CITY-owned property. lf, at any time during the term of this Agreement, the UAP should no longer be CITY-owned property or should become unsafe or unusable for any cause or if CITY terminates for any other reason, CITY shall have no obligation to provide other facilities. USER further affirms and acknowledges that USER has no relocation rights with respect to the UAP or the Program if this Agreement is terminated for any reason. K. While it is anticipated that USER may apply for grants from various sources to assist in running USER's programs, nothing herein obligates the CITY to provide any funding to USER in the operation of any program within the UAP. Furthermore, nothing herein grants USER any priority or special consideration from the CITY when the CITY is considering the distribution of grant funding to nonprofits and similar entities. L. No fees may be charged for the Minimum Program Requirements set forth in Paragraph C of this Section. The park is a free public park and no entrance fees or membership fees will be assessed to use the park. USER may charge fees for participation in approved Community Serving programming beyond the Minimum Program Requirements. For all programs for which a fee will be charged, USER must submit a detailed description of the program to the Director at least fifteen (L5) days prior to the initiation of the program. Eligible low-income residents should be able to apply for fee waivers as necessary. CITY reserves the right to disallow any fees assessed for participation in USER programs and activities which the CITY deems to be excessive or inconsistent with the mission of the PARCS Department. M. USER is allowed to retain revenue only up to the amount necessary to reimburse USER for the actual and direct expenses incurred in operating the CENTER. All excess revenue shall be turned over to CITY. N. CITY agrees that USER may conduct community events and fundraising activities at UAP with the prior written approval of PARCS Director, so long as activities do not adversely impact access for the general public to the UAP. CITY approval may be contingent upon USER providing appropriate services needed to adequately support the event. Proceeds from fundraising activities must have a direct correlation to USER operations at the UAP. USER must contact the Director prior to any outdoor event to ensure that the outdoor space is not already reserved by another group or organization. No alcoholic beverages will be allowed on premises. O. USER is responsible for any facility reservations that may come from the community, organizations or individuals. This includes the implementation and collection of fees, insurance and adequate staffing for the reservation. lnsurance requirements for the rental of the facility must be similar to the CITY requirements, SECTION 6. INVENTORY AND USE OF EQUIPMENT CITY may agree to make available to USER, at CITY's sole discretion, certain CITY-owned equipment and furnishings for USER's use in the conduct of the Program. An inventory of such CITY-owned equipment and furnishings in the UAP shall be conducted upon the completion of the CENTER. USER agrees to maintain all CITY equipment and furnishings applicable to this provision in good condition and safe working order, and to return same to CITY in the same condition as when received by USER, reasonable wear and tear excepted. The use of City equipment for other purposes outside the scope of this agreement is not permissible. SECTION 7. UTILITIES A. USER will pay for gas, electricity, water, sewer, and garbage, for a period of two years commencing upon completion of the PARK. After two years the CITY agrees to pay for gas, electricity, water, sewer and garbage, however once the CITY assumes payment. CITY will continue to take advantage of opportunities to implement energy conservation measures at the UAP, or to benefit the UAP, as resources allow. L. CITY agrees to provide outside garbage and refuse containers at the UAP for the deposit of refuse collection services. 2. The CITY will be responsible for any increases in cost due a decision by the CITY to install and/or construct any improvements to the UAP that occurs over the two-year period, which increases the cost of utilities by more than 5%. This provision would not apply to the construction of the CENTER in the event that construction/opening is delayed. SECTION 8. MAINTENANCE AND REPAIR A. Upon completion of the PARK, USER shall be responsible for maintaining all landscape maintenance, including mowing, edging, weeding, low limb pruning, graffiti removal, trash pickup, addressing minor sprinkler issues, and reporting of additional maintenance issues to CITY. The landscaping will be done on a weekly basis and will include the removal of minor graffiti around the park to the extent feasible, and the repair of above-ground landscaping issues, including sprinkler heads. USER shall maintain the PARK in a clean and trash-free manner. USER shall provide maintenance and janitorial services to the restrooms. B. Upon completion of the CENTER, USER shall provide routine janitorial maintenance and repair of the CENTER necessary through reasonable wear and tear; which includes, at a minimum, spot vacuuming, mopping, and restroom service. Routine repairs that are the result of normal wear and tear on the facility will also be the responsibility of USER. C. USER shall make no alteration or change in any manner to the UAP, including electrical, gas or plumbing equipment or facilities, lf USER desires to alter, modify, change or relocate any utility, equipment, or facilities or of any part or portion of the UAP, such action shall be subject to the prior approval of CITY and the costs thereof shall be borne by USER. D. USER has inspected the UAP and agrees to use and occupy the UAP in an "as-is" condition. Any maintenance or repairs required as a result of misuse or negligence of USER (including USER's agents, subcontractors, invitees, and employees) shall be corrected within thirty (30) days by USER. USER may make arrangements for CITY to make necessary repairs at USER's sole cost and expense. Failure to complete said repairs within the specified time period may be grounds for termination. E. The USER shall hold the CITY harmless against claims if the CITY determines that it must temporarily shut down the UAP to perform major system repairs. F. CITY shall be responsible for structural, equipment repair and other long term capital repairs of the UAP, except to the extent such repair may be caused by the misconduct or 1_0 negligent actions or omissions of USER or USER's invitees, USER shall report all necessary facility maintenance and repairs to CITY in a timely manner. CITY shall conduct preventative maintenance in a manner consistent with the majority of other similar CITY community UAP facilities. Enhanced maintenance requested by USER above the CITY's minimum levels of service are subject to CITY's approval. G. No alterations or improvements, including capital improvements and installations of additional phone lines, T1 lines, electrical lines, security systems, or changing of locks and keys, shall be made to the UAP without the CITY's prior written approval, which shall not be unreasonably withheld. lf the CITY provides written approval, the USER shall be responsible for obtaining all CITY permits through the City of Fresno Public Works Department necessary for the construction of any alterations or improvements. USER will be responsible for meeting all permit requirements at no cost to the CITY. SECTION 9. NO WASTE OR NUISANCE USER shall not commit, or suffer to be committed, any waste upon the UAP, or any public or private nuisance. SECTION 10. REPORTING REqUIREMENTS USER shall be subject to the reporting requirements set forth in Exhibit C attached hereto. SECTION 11. INDEPENDENT CONTRACTOR The parties mutually agree that USER and its employees are and shall be at all times independent contractors and not agents or employees of the CITY, and that USER and its employees shall not be entitled to any salary, fringe benefits, pension, Workers' Compensation, sick leave, insurance, or any other benefit or right connected with employment by the CITY, or any compensation other than as prescribed herein and USER expressly waives any claim it may have to such rights. sEcTroN 12. LTCENSE RTGHTS/NOT A LEASE 1.1 The rights granted to USER under this Agreement are non-exclusive license rights only and in no respect shall the same constitute or be construed as an assignment of a leasehold or other interest in the property described in this Agreement. SECTION 13. ASSIGNMENT OR SUBLEASE BY USER This Agreement shall not be assigned by USER in whole or in part nor subleased or subcontracted in any respect without written authorization of CITY, which may be withheld in CITY's sole discretion. SECTION 14. NONDISCRIMINATION ln the performance of this Agreement, including without limitation, the programs and services provided at the UAP, USER shall not discriminate against any employee or applicant for employment because of race, sex, color, age, religion, sexual orientation, actualor perceived gender identity, disability, ethnicity, or national origin, or any other characteristic or category protected by state law in connection with or related to the performance of this Agreement. sEcTroN 15. COMPLTANCE W|TH LAWS/BACKGROUND CHECKS/REPORT OF CHrrD ABUSE A. USER shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local governments. B. USER shall be responsible for payment of all taxes, fees, contributions or charges applicable to the conduct of USER's business. C. Without limitation of any other provision herein, if the services provided hereunder (i) involve direct contact with minors or if minors are supervised as part of the services provided hereunder, or (ii) if services provided hereunder include services in the human services field and involve the care and security of children, the elderly, the disabled, or the mentally impaired, then USER represents and warrants to CITY that prior to services being provided hereunder by any personnel or volunteers retained by USER that the USER has or will conduct a criminal background check as provided in California Penal Code Section l-l-l-05.3, as well as an FBI criminal database background check and, has or will verify priorto services being provided that the personnel or volunteers do not have any criminal record for the offenses 1.2 listed in California Penal Code Section l-11-05.3, which include, certain offenses related to the possession or use of controlled substances, sex offenses or any criminal offense involving violence. D. USER shall comply with the provisions of the Child Abuse and Neglect Reporting Act, California Penal Code Section 1.1,L64 et seq. E. USER shall request subsequent arrest service from the Department of Justice as provided under Section tlt}s.2 of the Penal Code. F. No person whether paid or not paid by USER shall be permitted to provide services described in this Agreement unless, prior to commencing services hereunder, USER shall deliver a letter to CITY listing such person and certifying that the USER has conducted a proper background check on such person or persons, and each of the named persons is legally permitted to perform the services described in this Agreement. lf requested by City during the term of this Agreement, USER shall provide an updated certification letter verifying that the background checks for each of the named persons is current and in compliance with this provision, SECTION 16. WAIVER OF CLAIMS USER, as a material part of the consideration to be rendered to CITY under this Agreement, hereby waives all claims or causes of action against the CITY, its officers or employees which USER may now or hereafter have for damages to goods, wares, merchandise or other property in, about or upon the UAP or any portion of the building in which UAP is located, and for injuries to persons in or about the UAP, from any cause or causes arising at any time. ln particular, but not by way of limitation, USER hereby waives any and all claims or causes of action which USER may now or hereafter have against the CITY, its officers or employees: (a) for loss, injury or damage sustained by reason of any deficiency, impairment and interruption of any service or system serving UAP or any portion of building in which UAP is located, and (b) for any loss or damage to the property of, or injury or damage to USER, USER's officers, employees, or agents, from any cause or causes arising at any time because of USER's use or occupancy of the UAP or any portion of building in which UAP is located. 13 SECTION 17. INDEMN¡FICATION AND HOLD HARMLESS INDEMNITY BY USER. USER shall indemnify, hold harmless and defend CITY and each of its officers, officials, employees, agents and authorized volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by CITY, USER or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Agreement. USER'S obligations under the preceding sentence shall apply regardless of whether CITY or any of its officers, officials, employees, agents or volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely bythe gross negligence, or caused bythe willful misconduct, of CITY or any of its officers, officials, employees, agents or authorized volu nteers. lf USER should subcontract all or any portion of the work to be performed under this Agreement, USER shall require each subcontractorto indemnify, hold harmless and defend CITY and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Agreement. sEcTtoN 18. TNSURANCE REqUTREMENTS Throughout the life of this Agreement, USER shall pay for and maintain in full force and effect all insurance as required in Exhibit B or as may be authorized in writing by CITY'S Risk Manager or his/her designee at any time and in his/her sole discretion. lf at any time during the life of the Agreement or any extension, USER or any of its subcontractors fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, Any failure to maintain the required insurance shall be sufficient cause for CITY to terminate this Agreement. No action taken by CITY pursuant to this section shall in any way relieve USER of its responsibilities under 1.4 this Agreement. The phrase "fail to maintain any required insurance" shall include, without limitation, notification received by CITY that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. The fact that insurance is obtained by USER shall not be deemed to release or diminish the liability of USER, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify CITY shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by USER. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of USER, its principals, officers, agents, employees, persons under the supervision of USER, vendors, suppliers, invitees, USERs, sub-USERs, subcontractors, or anyone employed directly or indirectly by any of them. Upon request of CITY, USER shall immediately furnish CITY with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. lf USER should subcontract all or any portion of the services to be performed under this Agreement, USER shall require each subcontractor to provide insurance protection in favor of CITY and each of its officers, officials, employees, agents and volunteers in accordance with the terms of this section, except that any required certificates and applicable endorsements shall be on file with USER and CITY priorto the commencement of any services bythe subcontractor. SECTION 19. COMPLIANCE WITH IAWS USER shall comply with CITY policies and all applicable state and federal laws, regulations and rules related to the use of the UAP and the operation of the Program, including but not limited to, laws, regulations and rules applicable to health, safety and equal opportunity employment. SECTION 20. POSSESSORY INTEREST TAX 15 USER understands and agrees that this Agreement may create a possessory interest subject to property taxation and that USER may be subject to payment of property taxes levied on such interest, and that any such tax shall be the liability of and be paid by USER. SECTION 21. TIME OF ESSENCE Where performance of a covenant is specified herein to be performed on or before a certain date, time shall be of the essence of that said covenant. Performance by USER of each and every covenant of this Agreement is material, the breach of which shall constitute a material breach of this Agreement for which the CITY may terminate this Agreement. SECTION 22. EFFECT OF WAIVER The waiver by either party of any breach of any term, covenant or condition of this Agreement shall not be deemed a waiver of such term, covenant or condition of waiver of any subsequent breach of such term, covenant or condition. The consent or approval by CITY to or of any act by USER requiring CITY's approval or consent shall not be deemed to waive provisions for CITY's approval or consent to any such subsequent acts by USER. SECTION 23. AUTOMATIC TERMINATION The right of USER to use the UAP described herein shall be automatically terminated without notice on the occurrence of any one of the following conditions subsequent, in which event USER shall forthwith and without demand by the CITY, surrender the UAP without delay. A.The appointment of a receiver to take possession of all or substantially all of the assets of USER; A general assignment by USER for the benefit of creditors; Any action taken or suffered by USER under any insolvency or bankruptcy act; The suspension, revocation or lapse of USER's nonprofit incorporated status which is not cured within L0 days after notice given to USER of such suspension, revocation or lapse; or B. c. D. 1.6 E. Failure to comply with any material term of any other agreement between USER and CITY, including without limitation, any grant agreement. SECTION 24. ELECTIVE TERMINATION This Agreement may be terminated by either party at any time during the term for any reason, upon giving to the other party at least ninety (90) days written notice of termination. ln the event such notice of termination is given, this Agreement shall be deemed terminated ninety (90) days after delivery of notice is given pursuant to Section 28. sEcTtoN 25. The parties acknowledge that CITY may terminate this Agreement under this provision without cause, notwithstanding USER's compliance with the terms of this Agreement including payment of utilities, delivery of reports and program services. The Director is authorized to decide, on the part of the CITY, that this Agreement is to be terminated and to furnish written notice thereofto USER. SECTION 26. TERMINATION UPON DEFAULT ln the event of any default on the part of USER in USER's performance of or compliance with any of the terms, conditions and covenants of this Agreement, CITY shall have the right, in addition to or as an alternative to any other right ¡t may have at law or in equity or pursuant to this Agreement, to terminate this Agreement upon (30) days prior written notice; provided, however, that CITY shall first give written notice to USER of such default and USER shall thereafter have a period of seven (7) days to correct the default. SECTION 27. SURRENDER ON TERMINATION On the last day orthe soonertermination of the term of this Agreement, USER shall quit and surrender UAP in good condition and repair (reasonable use and wear and tear, and damage or deterioration caused by the elements, earthquake, flood, and fire not caused by the negligence of the USER excepted), and remove all property owned by the USER from the UAP, I7 All such property not so removed shall be deemed at the option of CITY to have been abandoned by USER. SECTION 28. NOTICES AND REPRESENTATIVES All notices required or permitted to be given under this Agreement shall be in writing and personally delivered or sent by U.S. Mail, postage prepaid, addressed as follows: CITY City Manager, Bruce Rudd City Hall 2600 Fresno St. Fresno, CA9372t USER Executive Director, Robert Hand Resource for lndependence Central Valley 3008 N. Fresno St. Fresno, CA 93703 The parties may change their respective addresses for purposes of delivering notices by sending notice of such change pursuant to this Section. SECTION 29. CONFLICT OF INTEREST USER shall avoid all conflict of interest or appearance of conflict of interest in performance of this Agreement. USER is familiar with conflict law provisions set forth in California Government Code Sections 87100 et seq. and Government Code Section L090. USER certifies that it does not know of any facts which constitute a violation of such section. USER further certifies that it shall not assign any personnelto provide services under this Agreement which would be cause for a violation of any conflict of interest law. SECTION 30. MISCELLANEOUS PROVISIONS A. The parties agree that this Agreement shall be governed and construed in accordance with the laws of the State of California. ln the event that suit shall be brought by either party to this Agreement, the parties agree that venue shall be in Fresno County. B. The headings of the sections and subsections of this Agreement are inserted for convenience only. They do not constitute a part of this Agreement and shall not be used in its construction. 18 C. Any and all exhibits which are referred to in this Agreement are incorpor.ated herein by reference and are deemed a part of this Agreement. D. This Agreement may only be amended by fornral written agreement executed by both parties. E, lf a court of competent jurisdiction adjudges any provision of this Agreement as void or unenforceable, the remaining provisions shall not be affected hereby and shall remain in fullforce and effect. /// t// /1/ 19 lN WITNESS WHEREOF, The parties hereby execute this Agreement as of the day and year hereinabove written. USER: Resource for lndependence Central Valley, CITY: CITY OF FRESNO a Municipal Corporation By: Date: Exhibit A - Facility lnventory Exhibit B - lnsurance Requirements Exhibit C - Summary of Reporting Requirements Resource for lndependence Central By: Bruce Rudd, City Manager City of Fresno ATTEST: By: APPROVED AS TO FORM: DOUGLAS T. SLOAN City By: Sup. Deputy City Attorney 20 EXHIBIT A FACILITY INVENTORY Will be added once facility construction is complete. EXHIBIT B INSURANCE REQUIREMENTS Agreement between the City of Fresno and Resources for lndependence Central Valley Lead Operation of Neiehborhood UAP Minimum Scope of Insurance Coverage shall be at least as broad as: L. The most current version of lnsurance Services Office (lSO) Commercial General Liability Coverage Form CG 00 01, which shall include insurance for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations, products and completed operations, and contractual liability. 2. The most current version of lnsurance Service Office (lSO) Business Auto Coverage Form CA 00 01, which shall include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code L - Any Auto). 3. Workers' Compensation insurance as required by the California Labor Code and Employer's Liability lnsurance. Minimum Limits of lnsurance USER shall maintain limits of liability of not less than: L. General Liability: - 53,000,000 per occurrence for bodily injury and property damage - S1,000,000 per occurrence for personal and advertising injury - 53,000,000 aggregate for products and completed operations - S3,000,000 general aggregate 2. Automobile Liability: - S1,000,000 per accident for bodily injury and property damage 3. Employer's Liability: - S1,000,000 each accident for bodily injury - S1,000,000 disease each employee - S1,000,000 disease policy limit Umbrella or Excess lnsurance ln the event USER purchases an Umbrella or Excess insurance policy(ies) to meet the ,,Minimum Limits of lnsurance," this insurance policy(ies) shall "follow form" and afford no less coverage than the primary insurance policy(ies). Deductibles and Self-lnsured Retentions USER shall be responsible for payment of any deductibles contained in any insurance polices required hereunder and USER shall also be responsible for payment of any self-insured retentions. Any deductibles or self-insured retentions must be declared to, and approved by, the CITY'S Risk Manager or his/her designee. At the option of the ClTy'S Risk Manager or his/her designee, either (¡) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects CITY, its officers, officials, employees, agents and authorized volunteers; or (ii) USER shall provide a financial guarantee, satisfactory to ClTy'S Risk Manager or his/her designee, guaranteeing payment of losses and related ínvestigations, claim administration and defense expenses' At no time shall CITY be responsibte for the payment of any deductibles or self-insu red retentions. Other lnsurance Provisions The General Liability and Automobile Liability insurance policies are to contain, or be endorsed to contain, the following provisions: clrY, its officers, officials, employees, agents and volunteers are to be covered as additional insureds. The coverage shall contain no special limitations on the scope of protection afforded to clrY, its officers, officials, employees, agents and volunteers. usER's insurance coverage shall be primary and no contribution shall be required of CITY. The Workers' Compensation insurance policy is to contain, or be endorsed to contain, the following provision: USER and its insurer shall waive any right of subrogation against ClTy, its officers, officials, employees, agents and authorized volunteers. All policies of insurance required hereunder shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after 30 calendar day written notice by certified mail, return receipt requested, has been given to clTy. upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reductionin coverage or in limits, USER shall furnish CITY with a new certificate and applicable endorsements for such policy(ies). ln the event any policy is due to expire during the work to 1. 2. 3. be performed for CITY, USER shall provide a new certificate, and applicable endorsements, evidencíng renewal of such policy not less than 15 calendar days prior to the expiration date of the expiring policy. Acceptability of Insurers All policies of insurance required hereunder shall be placed with an insurance company(ies) admitted by the California lnsurance Commissioner to do business in the State of California and rated not less than "A-Vll" in Best's lnsurance Rating Guide; or authorized by ClTy'S Risk Manager. Verification of Coverage USER shall furnish CITY with all certificate(s) and applicabte endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to be received and approved by the CITY'S Risk Manager or his/her designee prior to CITY'S execution of the Agreement and before work commences. Exhibit C SUMMARY OF REPORTING REQUIREMENTS Quarterly: L. A location-specific program calendar shall be submitted to CITY and continuously posted for public display at the UAP. Semi-Annually: L Submit a report regarding performance of Programs offered at the site. Annually: t. *A draft annual program plan for CITY's approval. 2. *An organizational chart with a list of staff employees by title. 3. *Names and addresses of current members of the Board of Directors. 4. *A CPA Compiled annual financial report including sources of funding and any constraints on receivable or received funds. 5. Proof that services are still available and quantitative reports of services provided during the preceding year. 6. *Proof of lnsurance as set forth in Exhibit B. As Modified: t. Provide CITY with job descriptions of all volunteer and paid positions. 2. For all programs for which a fee will be charged, USER must submit a detailed description of the program to the Director at least fifteen (15) days prior to the initiation of the program. As Required: 1. Staff shall attend meetings as required or requested by CITY or Director. Note: Asterisk designates items that are first due prior to Agreement commencement date.