MANAGEMENT AGREEMENT (Winter Nights Temporary Homeless Shelter)

Transcription

1 MANAGEMENT AGREEMENT (Winter Nights Temporary Homeless Shelter) Attachment 4 This Management Agreement ( Agreement ) is made and entered into by and between the City of Walnut Creek ("City"), on the one hand, and Trinity Center Walnut Creek, a California nonprofit corporation ("Trinity Center"), on the other hand. RECITALS A. Trinity Center has approached the City with a proposed plan to manage and operate a one hundred forty (140) day temporary homeless shelter at the California National Guard Armory located at 1800 Carmel Drive in the City of Walnut Creek (the Armory ). B. In order to facilitate use of the Armory as a temporary homeless shelter, and pursuant to statutory authorization set forth in California Government Code Section et. seq., the City has entered into that certain License to Use State Military Facility with the California Department of Military (the License ) pursuant to which the Armory has been licensed to the City and made available for the purpose of providing temporary shelter for the homeless. C. Pursuant to the terms of the License, the City is permitted to contract with a non-profit organization for the provision of all necessary on-site management of the proposed shelter at the Armory. D. Trinity Center desires to plan, coordinate, manage, operate and supervise a temporary homeless shelter at the Armory, and City desires to permit such activity, all in accordance with the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants and agreements herein contained, the parties hereto agree as follows: 1. Term of Agreement. Unless earlier terminated pursuant to Section 10 below, the term of this Agreement shall cover the one hundred forty (140) day period beginning November 12, 2016, through March 31, 2017 (the Term ). 2. Obligations of Trinity Center. (a) Generally. During the Term of this Agreement, Trinity Center agrees to plan, coordinate, manage, operate and supervise a temporary homeless shelter at the Armory site in accordance with all terms and conditions of this Agreement as well as any other conditions or requirements as may be set forth in any future conditional use permit ( CUP ) issued by the City for such purposes. At all times during the Term of this Agreement, Trinity Center shall operate the shelter in strict compliance with the attached operating plan dated, June 18, 2016 which is incorporated herein as Exhibit A (the Operating Plan ). In the event of any conflict between the Operating Plan and the terms and conditions set forth in the body of this Agreement, the terms and conditions of this Agreement shall govern.

2 (b) Compliance with License Requirements. Trinity Center acknowledges that it has received, reviewed and understands the License, which also includes Addendum to Cal NG Form and Exhibit A Janitorial and Cleanup. All references to License throughout this Agreement refer to the body of the License, as well as the above-referenced addendum and exhibit, all of which are attached hereto as Exhibit B. Trinity Center agrees to assume and perform all of the duties and obligations of the City under the License to the same extent as if Trinity Center were the original party named in the License. Those duties and obligations include, but are not limited to the duties and obligations more particularly described in subsections (c) through (j) below. (c) Payment of License Fee. Trinity Center acknowledges that the City has paid, or will pay, a license fee to the Military Department for use of the Armory during the one hundred forty (140) day Term. The estimated fee is $ per 120 days of actual use for a total of $53, When due, such license fee shall be paid by Trinity Center directly to the Military Department on behalf of the City. In the event the license fee, or any portion thereof, has already been paid by the City, Trinity Center agrees to reimburse the City for such payment within five (5) days following the execution of this Agreement. (d) Days and Hours of Shelter Operations. The Armory will be available for nightly use between the hours of 6:00 p.m. through 7:00 a.m. Notwithstanding the foregoing, Trinity Center acknowledges that the Military Department may suspend use of the Armory under the terms of the License during state or federal emergencies, unit activations, weekend training events, and other similar situations. (e) Installation and Provision of Equipment. Trinity Center shall be responsible for the procurement, construction, installation and set-up of all materials, equipment and furnishings necessary to operate the temporary homeless shelter. All equipment and materials supplied by Trinity Center shall be removed by Trinity Center upon expiration of the Term. No furnishings or fixtures shall be installed in such a manner as to become permanently affixed to the Armory. All construction, installation and set-up on the Armory shall be completed by Trinity Center in accordance with all City engineering, building and safety requirements. (f) Supervision and Security. During the Term of this Agreement, Trinity Center shall be responsible for all supervision and security of those portions of the Armory site utilized in connection with the shelter. Trinity Center is responsible for the provision of all necessary personnel in connection with its operation of the shelter and acknowledges that the City will not be providing personnel for such purposes. Additionally, Trinity Center is required to employ a uniformed security officer as more particularly described in the License, who will be present at the Armory site each evening from at least one hour prior to the opening of the shelter until one hour following lights out. Trinity Center shall provide the City with a copy of the security services contract showing its compliance with the requirements of this paragraph at least fifteen (15) days prior to the commencement of any operations at the shelter. (g) Duty to Report Incidents. Trinity Center shall immediately report to the City: (i) all incidences of observed or alleged criminal activity occurring at the Armory, or at any other location in connection with its performance of this Agreement, including the discovery of any illegal drugs or weapons. 2

3 (ii) all incidents requiring any emergency response to the Armory (e.g. police, fire, ambulance, County health); and (iii) all incidents required to be reported to the National Guard in accordance with the attached Operating Plan. (h) Maintenance and Janitorial Services. During the Term of this Agreement, Trinity Center shall be responsible for all maintenance of those portions of the Armory site utilized in connection with the shelter. Trinity Center shall ensure the provision of daily professional janitorial services for all restrooms, shower, kitchen and sleeping facilities, as more particularly described in the License. In the event Trinity Center fails to maintain the Armory site or otherwise fails to correct any dangerous or unsanitary condition within forty-eight (48) hours after being notified by the City or the Military Department to do so, then City may remedy the condition at Trinity Center s expense. Trinity Center shall provide the City with a copy of the janitorial services contract showing its compliance with the requirements of this paragraph at least fifteen (15) days prior to the commencement of any operations at the shelter. (i) Condition of Premises. Trinity Center accepts the Armory in its "AS-IS" current condition and shall be responsible for ensuring that those portions of the Armory utilized in connection with its performance of this Agreement comply with all applicable building, accessibility, health, and safety codes. The City shall not be required to make any alterations, improvements or repairs therein or thereon to accommodate use of the Armory by Trinity Center. Trinity Center shall not make any changes or alterations to the Armory without City's prior written consent. Any such approved changes or alterations shall be completed at the sole expense of Trinity Center. Upon termination or expiration of this Agreement, Trinity Center shall remove all materials, equipment, furnishings and other personal property from the Armory and shall restore the Armory to the same condition as existing immediately prior to Trinity Center s use thereof. (j) Closed Shelter / No Advertising. Trinity Center agrees and acknowledges that the shelter program described throughout this Agreement is to be a closed shelter and that Trinity Center is prohibited from promoting or marketing the program except to those members Trinity Center already serves. Trinity Center shall use its reasonable best efforts to inform other social service agencies throughout Contra Costa County in writing, with copies provided to the City, that given the closed nature of the shelter, no referrals will be accepted. 3. Screening, Registration and Maximum Number of Participants. (a) Screening and Registration. Trinity Center shall develop a written intake program in connection with its Operating Plan that will require all homeless shelter participants to be pre-screened and registered members of Trinity Center s primary Walnut Creek facility (1924 Trinity Avenue) for a period of at least thirty (30) days prior to participation in the shelter program. Any individual who is either a registered sex offender (RSO) or who otherwise has any active warrant for his/her arrest is prohibited from participation in the shelter program. At least fifteen (15) days prior to participation, Trinity Center, as part of its intake process, will provide the name and date of birth of each prospective shelter program participant to the City for the purpose of allowing the Walnut Creek Police Department to confirm their RSO and warrant status. 3

4 (b) Identification of Active Shelter Participants. As part of its intake program, Trinity Center shall issue all shelter participants a program-specific identification card containing a current photograph of the participant. All participants shall be required to wear, or otherwise affix, the identification card to their clothing in a manner that allows such participant to be easily identified as part of the program during the term of their daily participation. (c) Maximum Number of Participants. The number of shelter program participants shall not exceed a maximum of fifty (50) at any time. In the event any participant is either temporarily suspended, permanently terminated, or otherwise voluntarily withdraws from the program, such suspended, terminated, or withdrawn participant may be replaced with another pre-qualified participant so long as the maximum number of participants does not exceed fifty (50). Trinity Center shall provide adequate staff and use its reasonable best efforts to consult with and arrange alternative services for any non-participants who may arrive at either Trinity Center s Walnut Creek location (1924 Trinity Avenue) or at the Armory site itself and who are not qualified to participate in the program. 4. Transportation of Shelter Program Participants. Trinity Center shall be required to shuttle by vehicle all program participants directly from Trinity Center (1924 Trinity Avenue) to the Armory each evening and directly from the Armory back to Trinity Center each morning. In the event a vehicle is not available for transportation to and from the Armory, the shelter program shall remain closed until such time as a shuttle vehicle again becomes available. Trinity Center must maintain a nightly sign-in roster that shall also serve as a check-out sheet in the morning to ensure that all shelter participants have boarded the bus and disembarked back at Trinity Center. The check-in and check-out rosters shall be made available for inspection by the City upon request. The shelter program is designed to be an overnight program without any in/out privileges. However, in the event a shelter participant provides written documentation to Trinity Center of a job-related need to arrive late and/or leave early, Trinity Center may shuttle such participant by vehicle between Trinity Center and the Armory outside of the normal daily shuttle hours solely for such job-related purpose. 5. Participation in Ad-Hoc Neighborhood Shelter Advisory Committee. The City shall establish an ad-hoc neighborhood shelter advisory committee to provide periodic advice, feedback and recommendations to the City in an effort to ensure that Trinity Center maintains a good neighbor policy in connection with its operation of the shelter. The total number of committee members shall be at least eight (8) but not more than (10) with one-half (1/2) of the committee membership to be comprised of individuals residing in affected neighborhoods adjacent to the Armory and Trinity Center. Trinity Center agrees that its Executive Director, along with other applicable staff, will attend all committee meetings (except in the event of illness or other unforeseen circumstance). Additionally, an appropriate Lieutenant of the Walnut Creek Police Department, along with other necessary City and county staff, will also attend committee meetings. Written minutes of all advisory committee meetings shall be made available to the public. 4

5 6. Other Matters. (a) Public Facility. Trinity Center acknowledges that the Armory is a publicly owned and operated facility of the State of California which is being licensed to the City of Walnut Creek. Accordingly, as part of the intake and registration process described in Section 3 above, Trinity Center shall inform all participants in writing that the Armory will be subject to routine patrol by the Walnut Creek Police Department and, as a result, participants electing to participate in the shelter program will not have the same expectation of privacy as might otherwise exist in a privately-owned facility or residence. (b) Storage. Shelter program participants may be permitted to store their personal belongings at the Armory each night solely in the manner and locations specifically authorized by the Military Department and more particularly described on the attached Exhibit C ( Storage Locations ). (c) Alcohol, Drugs and Weapons. Trinity Center shall take all necessary action to prevent the possession, consumption or sale of any alcohol or illegal drugs, as well as the possession of any weapons in or on the Armory site. (d) Smoking. Except in locations specifically authorized by the Military Department and more particularly described on the attached Exhibit D ( Smoking Locations ), Trinity Center shall take all necessary action to prevent smoking and other use of tobacco products in or on the Armory site. Nothing in foregoing sentence shall authorize smoking in any areas where smoking is already prohibited pursuant to Title 5, Chapter 4 of the Walnut Creek Municipal Code. 7. Conditional Use Permit. Trinity Center acknowledges that the City s zoning ordinance requires Trinity Center to obtain a CUP in order to operate a homeless shelter at the Armory site. With respect to any such CUP application by Trinity Center, the City expressly reserves all of its regulatory land use authority. Accordingly, nothing in this Agreement shall otherwise require the City, in its capacity as a governing body, to approve, consent to or otherwise grant any permit or entitlement which may be necessary or useful in conjunction with Trinity Center s performance of this Agreement. 8. Indemnification. To the fullest extent permitted by law, Trinity Center shall indemnify, defend and hold harmless City and its officers, employees, elected and appointed officials and volunteers from and against any and all claims, demands, causes of action, lawsuits (whether at law or equity or both), proceedings, liabilities, losses, damages, expenses costs (including without limitation attorneys' fees and costs and expert witness fees), judgments, penalties, and liens of every nature arising or claimed to arise directly or indirectly, out of (i) the use or possession of the Armory by Trinity Center or any of its directors, officers, employees, contractors, vendors, consultants, volunteers, guests or invitees, (ii) Trinity Center s planning, coordination, management, operation and/or supervision of the temporary homeless shelter in conjunction with this Agreement, (iii) any other willful, reckless or negligent act or omission of Trinity Center or any of its directors, officers, employees, contractors, vendors, consultants, volunteers, guests or invitees, or (iv) Trinity Center s failure to comply with any law, except for such loss caused by the sole negligent acts or willful misconduct of the City. This indemnity provision shall survive the termination of this Agreement. 5

6 9. Insurance. Trinity Center shall procure and maintain at its sole cost for the duration of this Agreement the following insurance: (a) Minimum Scope of Insurance. Coverage shall be at least as broad as: less than: (b) (1) Insurance Services Office Commercial General Liability coverage ( occurrence form CG 0001). (2) Insurance Services Office form number CA 0001 covering Automobile Liability, code 1 (any auto). (3) Workers Compensation insurance as required by the Labor Code of the State of California and Employers Liability insurance. Minimum Limits of Insurance. Trinity Center shall maintain policy limits of no (1) General Liability: $2,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, the general aggregate limit shall be double the aggregate, with completed operations coverage. (2) Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage. (3) Worker s Compensation and Employers Liability: Worker s Compensation limits as required by the Labor Code and Employers Liability limits of $1,000,000 per accident. (c) Deductibles and Self-Insured Retention. Any deductibles or self-insured retention must be declared to and approved by the City. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or self-insured retention as respects the City, its officers, officials, employees and volunteers; or Trinity Center shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. (d) Other Insurance Provisions. The policies shall contain, or be endorsed to contain, the following provisions: (1) General Liability and Automobile Liability Coverage. a. The City, its officers, officials, employees, agents and volunteers are to be covered as additional insured as respects: liability arising out of activities performed by or on behalf of Trinity Center; products and completed operations of Trinity Center; premises owned, occupied or used by Trinity Center; or automobiles owned, leased or borrowed by Trinity Center. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, officials, employees, agents or volunteers. 6

7 b. Trinity Center s insurance coverage shall be primary insurance as respects the City, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents or volunteers shall be excess of Trinity Center s insurance and shall not contribute with it. c. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its officers, officials, employees, agents or volunteers. d. Trinity Center s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer s liability. (2) Worker s Compensation and Employers Liability Coverage. The insurer shall agree to waive all rights of subrogation against the City, its officers, officials, employees and volunteers for losses arising from work performed by Trinity Center for the City. (e) Acceptability of Insurers. Insurance is to be placed with insurers with a Best s rating of no less than A: VII. (f) Verification of Coverage. Trinity Center shall furnish the City with certificates of insurance and with original endorsements effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require complete certified copies of all required insurance policies, at any time. (g) by Subcontractors. Trinity Center will cause all approved subcontractors, at their sole expense, to obtain and keep in force during the term of this Agreement commercial general liability insurance in amounts acceptable to the City's Risk Manager insuring against any and all liabilities arising out of their respective services in conjunction with this Agreement. Said policies shall name City as an additional insured. Trinity Center shall cause all approved subcontractors to furnish City with original certificates and amendatory endorsements effecting coverage required by this clause. (h) By City. The City may, at its sole discretion, obtain additional secondary insurance coverage with respect to the Armory facility and Trinity Center s proposed operation of the shelter. In the event the City elects to obtain such coverage during the Term of this Agreement, Trinity Center agrees to reimburse the City for the additional costs associated therewith. 10. Termination. (a) Termination by City. City may, upon five (5) days written notice to Trinity Center, terminate this Agreement without any further obligations to Trinity Center upon any of the following events: 7

8 (i) Trinity Center breaches any provision of this Agreement (inclusive of all provisions more particularly set forth in the License or the Operating Plan which have been incorporated into this Agreement by reference) and thereafter fails to cure such breach within the five (5) day written notice period set forth immediately above; (ii) The occurrence of any battery, assault, physical attack, or other violence not constituting a felony which is perpetrated by a shelter program participant against any director, officer, employee, contractor, vendor, consultant, volunteer or other personnel of Trinity Center or the Armory; (iii) The occurrence of any battery, assault, physical attack, or other violence not constituting a felony which is perpetrated by a shelter program participant against any other shelter program participant in and around the Armory site; (iv) The failure of Trinity Center and/or shelter program participants to adhere to the transportation provisions set forth in the Operating Plan (specifically, the requirement that participants be pre-registered with Trinity Center and shuttled to and from the shelter location in lieu of walking or transporting themselves); or (v) Possession, consumption or sale of alcohol or illegal drugs, or the possession of any weapons in or on the Armory site. (b) 24-Hour Termination by City. Notwithstanding any other provision of this Agreement, the City shall terminate this Agreement by giving twenty-four (24) hours written notice to Trinity Center upon the occurrence of (i) any battery, assault, physical attack, or other violence constituting a felony which is perpetrated by a shelter program participant against any other person, or (ii) any other circumstance or combination of circumstances that, in the good-faith-judgment of the City Manager or his designee, would constitute a danger to public health or safety. (c) Termination by Trinity Center. Trinity Center may terminate this Agreement upon five (5) days written notice to the City. (d) Effect of Termination. Upon termination of this Agreement by either party, Trinity Center shall be obligated to restore the Armory in accordance with the requirements set forth in Section 2(i) above. Additionally, to the extent any portion of the license fee is forgiven, waived, or otherwise refunded as a result of such termination, Trinity Center shall be entitled to the economic benefit of such forgiveness, waiver or refund, if any. 11. Assignment. This Agreement contemplates the personal services of Trinity Center and its employees and it is understood by both parties that a substantial inducement to City for entering into this Agreement was, and is, the professional reputation and competence of Trinity Center. Trinity Center shall not assign, subcontract, transfer, convey or encumber (collectively "assign") any or all of its rights under this without first obtaining City s written consent, which consent may be withheld in the sole and absolute discretion of City. In the event that Trinity Center shall attempt to assign any or all of its rights under this Agreement without first obtaining such consent, City may, in its discretion, immediately terminate this Agreement and all rights and interest of Trinity Center therein shall cease and terminate. Any purported assignment without the consent of the City is null and void. 8

9 12. Independent Contractor. Trinity Center acknowledges, represents and warrants that it is not a joint venturer or partner of City, but rather an independent contractor. City shall not be responsible for payment of any salaries, wages or compensation to Trinity Center s employees, contractors, vendors or volunteers. 13. Compliance with Laws. Trinity Center shall comply with all federal, state, and local laws, statues, ordinances, rules and regulations, and the orders and decrees of any courts or administrative bodies or tribunals, with respect to this Agreement, including without limitation environmental laws, employment discrimination laws, and laws governing accessibility for persons with disabilities. 14. Integration. This Agreement constitutes the entire agreement between the parties concerning the subject matter thereof and supersedes any previous oral or written agreement. This Agreement may be modified or amended only by a subsequent written instrument executed by both parties. 15. Third Parties. Nothing herein shall be interpreted as creating any rights or benefits in any third parties. 16. Governing Law and Venue. This Agreement shall be construed in accordance with the laws of the State of California without regard to principles of conflicts of law. Venue for any litigation or other action arising hereunder shall reside exclusively in the Superior Court of Contra Costa County. 17. Attorneys' Fees. In the event either party to this Agreement brings an action to enforce or interpret this Agreement, the prevailing party in such action shall be entitled to reasonable attorneys' fees (including expert witness fees) and costs. This provision shall survive the termination of this Agreement. 18. Interpretation. Trinity Center acknowledges that it has had ample opportunity to seek legal advice with respect to the negotiation of this Agreement. This Agreement shall be interpreted as if drafted by both parties. 19. Severability. Any provision of this Agreement to be found invalid or unenforceable shall be deemed severed and all remaining provisions of this Agreement shall remain enforceable to the fullest extent permitted by law. 20. Waiver. The waiver by City of any breach of any term or provision of this Agreement shall not be construed as a waiver of any subsequent breach. 21. Discrimination. Trinity Center shall not discriminate against any person on the basis of race, religion, color, sex, age, national origin, or physical handicap. Trinity Center shall make its temporary homeless shelter program available on an equal basis to all interested individuals willing to comply with the registration, transportation, and conduct requirements set forth in the License, the Operating Plan, and this Agreement. 22. Authority. All parties executing this Agreement represent and warrant that they are authorized to do so. 9

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11 IN WITNESS WHEREOF, the parties have executed this Agreement in Walnut Creek, California, as of this day of. CITY OF WALNUT CREEK: TRINITY CENTER WALNUT CREEK: Ken Nordhoff City Manager Donna Colombo Executive Director APPROVED AS TO FORM: City Attorney s Office 11

12 EXHIBIT A OPERATING PLAN [See attached] 12

13 EXHIBIT B LICENSE AGREEMENT [See attached] 13

14 EXHIBIT C STORAGE LOCATIONS [See attached] 14

15 EXHIBIT D SMOKING LOCATIONS [See attached] 15

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