Cities Index.
Fresno County Services Agreement with Exhibit "A" - ACT Operating Agreement

Fresno City Council
February 22, 2024

Document
Fresno County Services Agreement with Exhibit "A" - ACT Operating Agreement
Meeting
February 22, 2024
Body
Fresno City Council
Original file
4.1 MB
Text extracted from the city's file for reading and search. Open the original on legistar2.granicus.com. That file is the official record.

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1 SERVICE AGREEMENT
This Service Agreement (“Agreement”) is dated ___________________ and is between City of Fresno, a municipal corporation, whose address is 2323 Mariposa St #2075, Fresno, CA 93721 (“Contractor”), and the County of Fresno, a political subdivision of the State of California (“County”).

Recitals
A. Under Assembly Bill 109, the Public Safety Realignment Act (AB 109), signed into law on April 5, 2011, the State of California has realigned responsibilities for probation, post release community supervision (PRCS), and mandatory supervised release of offenders. The State of California has provided funding to County for the purpose of implementing AB 109 services.

B. The County requires an additional layer of offender supervision to ensure offender accountability, surveillance, and supervision through mobile, intensive, and evidence-based practices leading to enhanced public safety and offender compliance. Subsequently, the AB 109 Implementation Plan of 2011, collectively referred to as the “AB 109 Plan,” includes formation of the Adult Compliance Team (ACT) and Multi-Agency Gang Enforcement Consortium (MAGEC), to create a cooperative unit capable of addressing public safety concerns and issues facing local law enforcement in Fresno County. The ACT/MAGEC is comprised of representatives of the Fresno County Sheriff’s Department, the Fresno County District Attorney’s Office, the Fresno County Probation Department, and officers of the Clovis, Fresno, Kerman, Kingsburg, Reedley, Sanger, and Selma Police Departments.

C. The AB 109 Plan, including its updates, was developed by the Fresno County Community Corrections Partnership (CCP), and approved by the Fresno County Board of Supervisors. The AB 109 Plan was approved by the CCP on August 19, 2011 and approved by the Board of Supervisors on September 13, 2011.

D. The Contractor desires to continue to be a member of the ACT/MAGEC and to participate in the Pretrial After-Hours Response, and the County desires to maintain the Contractor as an ACT/MAGEC member, and to continue to implement AB 109 services.

The parties therefore agree as follows:
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2 Article 1
Contractor’s Services

1.1 Scope of Services. The Contractor shall perform all of the services provided in Exhibit A to this Agreement, the AB 109 Plan, titled “Scope of Services.”

1.2 Representation. The Contractor represents that it is qualified, ready, willing, and able to perform all of the services provided in this Agreement.

1.3 Compliance with Laws. The Contractor shall, at its own cost, comply with all applicable federal, state, and local laws and regulations in the performance of its obligations under this Agreement, including but not limited to workers compensation, labor, and confidentiality laws and regulations.

Article 2
County’s Responsibilities

2.1 The County shall compensate the Contractor for an amount equal to the cost of five (5) City of Fresno Police Officers, one (1) City of Fresno Crime Analyst, and one (1) City of Fresno Police Sergeant for assignment to the ACT and MAGEC teams not to exceed the maximum amount payable under this Agreement of $1,773,531.

Article 3
Compensation, Invoices, and Payments

3.1 The County agrees to pay, and the Contractor agrees to receive, compensation for the performance of its services under this Agreement as described in this section.

3.2 Maximum Compensation. The maximum compensation payable to the Contractor under this Agreement is One Million, Seven Hundred Sixty-Two Thousand, Nine Hundred Eighty-Five Dollars ($1,762,985) to participate as an ACT/MAGEC members and implement AB 109 services, plus Ten Thousand Five Hundred Forty-Six Dollars ($10,546), for Pretrial After- Hours Response activities, during the term of this Agreement. In no event shall compensation paid for all services performed under this Agreement exceed One Million Seven Hundred Seventy-Three Thousand, Five Hundred Thirty-One Dollars ($1,773,531) during the term of this Agreement. The Contractor acknowledges that the County is a local government entity, and 1 2
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3 does so with notice that the County’s powers are limited by the California Constitution and by State law, and with notice that the Contractor may receive compensation under this Agreement only for services performed according to the terms of this Agreement and while this Agreement is in effect, and subject to the maximum amount payable under this section. The Contractor further acknowledges that County employees have no authority to pay the Contractor except as expressly provided in this Agreement.

3.3 Invoices. The Contractor shall submit quarterly invoices to County of Fresno Probation Department at [email protected] . Invoices must be submitted on
or after the dates of October 1, 2023 and January 1, April 1, and July 1, 2024, respectively, and include a breakdown of expenses identified in the final approved budget of the CCP for use in executing the mission of ACT/MAGEC. Invoices for Pretrial After-Hours Response activities must be submitted separately. The Contractor shall submit each invoice within 60 days after the quarter in which the Contractor performs services and in any case within 60 days after the end of the term or termination of this Agreement.

3.4 Payment. The County shall pay each correctly completed and timely submitted invoice within 45 days after receipt. The County shall remit any payment to the Contractor’s address specified in the invoice.

3.5 Incidental Expenses. The Contractor is solely responsible for all of its costs and expenses that are not specified as payable by the County under this Agreement.

Article 4
Term of Agreement

4.1 Term. This Agreement is effective retroactive to July 1, 2023 and terminates on June 30, 2024, except as provided Article 6, “Termination and Suspension,” below.

Article 5
Notices

5.1 Contact Information. The persons and their addresses having authority to give and receive notices provided for or permitted under this Agreement include the following:

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4 For the County:

Chief Probation Officer
County of Fresno
3333 E. American Avenue, Building 701, Suite B
Fresno, CA 93725

For the Contractor:

Chief of Police
City of Fresno
2323 Mariposa St #2075
Fresno, CA 93721

5.2 Change of Contact Information. Either party may change the information in section

5.1 by giving notice as provided in section 5.3.

5.3 Method of Delivery. Each notice between the County and the Contractor provided for or permitted under this Agreement must be in writing, state that it is a notice provided under this Agreement, and be delivered either by personal service, by first-class United States mail, by an overnight commercial courier service, by telephonic facsimile transmission, or by Portable Document Format (PDF) document attached to an email.
(A) A notice delivered by personal service is effective upon service to the recipient. (B) A notice delivered by first-class United States mail is effective three County business days after deposit in the United States mail, postage prepaid, addressed to the recipient.
(C) A notice delivered by an overnight commercial courier service is effective one County business day after deposit with the overnight commercial courier service, delivery fees prepaid, with delivery instructions given for next day delivery, addressed to the recipient.

5.4 Claims Presentation. For all claims arising from or related to this Agreement, nothing in this Agreement establishes, waives, or modifies any claims presentation requirements or procedures provided by law, including the Government Claims Act (Division 3.6 of Title 1 of the Government Code, beginning with section 810). 1 2
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5 Article 6
Termination and Suspension

6.1 Termination for Non-Allocation of Funds. The terms of this Agreement are contingent on the approval of funds by the appropriating government agency. If sufficient funds are not allocated, then the County, upon at least 30 days’ advance written notice to the Contractor, may:
(A) Modify the services provided by the Contractor under this Agreement; or (B) Terminate this Agreement.

6.2 Termination for Breach.
(A) Upon determining that a breach (as defined in paragraph (C) below) has occurred, the County may give written notice of the breach to the Contractor. The written notice may suspend performance under this Agreement, and must provide at least 30 days for the Contractor to cure the breach.
(B) If the Contractor fails to cure the breach to the County’s satisfaction within the time stated in the written notice, the County may terminate this Agreement immediately. (C) For purposes of this section, a breach occurs when, in the determination of the County, the Contractor has:
(1) Obtained or used funds illegally or improperly;
(2) Failed to comply with any part of this Agreement;
(3) Submitted a substantially incorrect or incomplete report to the County; or (4) Improperly performed any of its obligations under this Agreement.

6.3 Termination without Cause. In circumstances other than those set forth above, the County may terminate this Agreement by giving at least 30 days advance written notice to the Contractor.

6.4 No Penalty or Further Obligation. Any termination of this Agreement by the County under this Article 6 is without penalty to or further obligation of the County.

6.5 County’s Rights upon Termination. Upon termination for breach under this Article 6, the County may demand repayment by the Contractor of any monies disbursed to the 1 2
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6 Contractor under this Agreement that, in the County’s sole judgment, were not expended in compliance with this Agreement. The Contractor shall promptly refund all such monies upon demand. This section survives the termination of this Agreement.

Article 7
Independent Contractor

7.1 Status. In performing under this Agreement, the Contractor, including its officers, agents, employees, and volunteers, is at all times acting and performing as an independent contractor, in an independent capacity, and not as an officer, agent, servant, employee, joint venturer, partner, or associate of the County.

7.2 Verifying Performance. The County has no right to control, supervise, or direct the manner or method of the Contractor’s performance under this Agreement, but the County may verify that the Contractor is performing according to the terms of this Agreement.

7.3 Benefits. Because of its status as an independent contractor, the Contractor has no right to employment rights or benefits available to County employees. The Contractor is solely responsible for providing to its own employees all employee benefits required by law. The Contractor shall save the County harmless from all matters relating to the payment of Contractor’s employees, including compliance with Social Security withholding and all related regulations.

7.4 Services to Others. The parties acknowledge that, during the term of this Agreement, the Contractor may provide services to others unrelated to the County.

Article 8
Indemnity and Defense

8.1 Indemnity. The Contractor shall indemnify and hold harmless and defend the County (including its officers, agents, employees, and volunteers) against all claims, demands, injuries, damages, costs, expenses (including attorney fees and costs), fines, penalties, and liabilities of any kind to the County, the Contractor, or any third party that arise from or relate to the performance or failure to perform by the Contractor (or any of its officers, agents, subcontractors, or employees) under this Agreement. The County may conduct or participate in 1 2
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7 its own defense without affecting the Contractor’s obligation to indemnify and hold harmless or defend the County.

The County shall indemnify and hold harmless and defend the Contractor (including its officers, agents, employees, and volunteers) against all claims, demands, injuries, damages, costs, expenses (including attorney fees and costs), fines, penalties, and liabilities of any kind to the County, the Contractor, or any third party that arise from or relate to the performance or failure to perform by the County (or any of its officers, agents, subcontractors, or employees) under this Agreement. The Contractor may conduct or participate in its own defense without affecting the County’s obligation to indemnify and hold harmless or defend the Contractor.

In the event of concurrent negligence on the part of County or any of its officers, agents, or employees, and Contractor or any of its officers, agents, or employees, the liability for any and all such claims, demands, and actions in law or equity for such losses, costs, expenses, and damages shall be apportioned under the State of California’s theory of comparative negligence, as presently established, or as may be modified hereafter.

8.2 Survival. This Article 8 survives the termination or expiration of this Agreement.

Article 9
Insurance

9.1 The Contractor and County shall comply with all the insurance requirements contained in Exhibit C.

Article 10
Inspections, Audits, and Public Records

10.1 Inspection of Documents. The Contractor shall make available to the County, and the County may examine at any time during business hours and as often as the County deems necessary, all of the Contractor’s records and data with respect to the matters covered by this Agreement, excluding attorney-client privileged communications. The Contractor shall, upon request by the County, permit the County to audit and inspect all of such records and data to ensure the Contractor’s compliance with the terms of this Agreement. 1 2
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8 10.2 State Audit Requirements. If the compensation to be paid by the County under this Agreement exceeds $10,000, the Contractor is subject to the examination and audit of the California State Auditor, as provided in Government Code section 8546.7, for a period of three years after final payment under this Agreement. This section survives the termination of this Agreement.

10.3 Public Records. The County is not limited in any manner with respect to its public disclosure of this Agreement or any record or data that the Contractor may provide to the County. The County’s public disclosure of this Agreement or any record or data that the Contractor may provide to the County may include but is not limited to the following:
(A) The County may voluntarily, or upon request by any member of the public or governmental agency, disclose this Agreement to the public or such governmental agency.
(B) The County may voluntarily, or upon request by any member of the public or governmental agency, disclose to the public or such governmental agency any record or data that the Contractor may provide to the County, unless such disclosure is prohibited by court order.
(C) This Agreement, and any record or data that the Contractor may provide to the County, is subject to public disclosure under the Ralph M. Brown Act (California Government Code, Title 5, Division 2, Part 1, Chapter 9, beginning with section 54950). (D) This Agreement, and any record or data that the Contractor may provide to the County, is subject to public disclosure as a public record under the California Public Records Act (California Government Code, Title 1, Division 7, Chapter 3.5, beginning with section 6250) (“CPRA”).
(E) This Agreement, and any record or data that the Contractor may provide to the County, is subject to public disclosure as information concerning the conduct of the people’s business of the State of California under California Constitution, Article 1, section 3, subdivision (b).
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9 (F) Any marking of confidentiality or restricted access upon or otherwise made with respect to any record or data that the Contractor may provide to the County shall be disregarded and have no effect on the County’s right or duty to disclose to the public or governmental agency any such record or data.

10.4 Public Records Act Requests. If the County receives a written or oral request under the CPRA to publicly disclose any record that is in the Contractor’s possession or control, and which the County has a right, under any provision of this Agreement or applicable law, to possess or control, then the County may demand, in writing, that the Contractor deliver to the County, for purposes of public disclosure, the requested records that may be in the possession or control of the Contractor. Within five business days after the County’s demand, the Contractor shall (a) deliver to the County all of the requested records that are in the Contractor’s possession or control, together with a written statement that the Contractor, after conducting a diligent search, has produced all requested records that are in the Contractor’s possession or control, or (b) provide to the County a written statement that the Contractor, after conducting a diligent search, does not possess or control any of the requested records. The Contractor shall cooperate with the County with respect to any County demand for such records. If the Contractor wishes to assert that any specific record or data is exempt from disclosure under the CPRA or other applicable law, it must deliver the record or data to the County and assert the exemption by citation to specific legal authority within the written statement that it provides to the County under this section. The Contractor’s assertion of any exemption from disclosure is not binding on the County, but the County will give at least 10 days’ advance written notice to the Contractor before disclosing any record subject to the Contractor’s assertion of exemption from disclosure. The Contractor shall indemnify the County for any court-ordered award of costs or attorney’s fees under the CPRA that results from the Contractor’s delay, claim of exemption, failure to produce any such records, or failure to cooperate with the County with respect to any County demand for any such records.
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10 Article 11
Disclosure of Self-Dealing Transactions

11.1 Applicability. This Article 11 applies if the Contractor is operating as a corporation, or changes its status to operate as a corporation.

11.2 Duty to Disclose. If any member of the Contractor’s board of directors is party to a self-dealing transaction, he or she shall disclose the transaction by completing and signing a “Self-Dealing Transaction Disclosure Form” (Exhibit B to this Agreement) and submitting it to the County before commencing the transaction or immediately after.

11.3 Definition. “Self-dealing transaction” means a transaction to which the Contractor is a party and in which one or more of its directors, as an individual, has a material financial interest.

Article 12
General Terms

12.1 Modification. Except as provided in Article 6, “Termination and Suspension,” this Agreement may not be modified, and no waiver is effective, except by written agreement signed by both parties. The Contractor acknowledges that County employees have no authority to modify this Agreement except as expressly provided in this Agreement.

12.2 Non-Assignment. Neither party may assign its rights or delegate its obligations under this Agreement without the prior written consent of the other party.

12.3 Governing Law. The laws of the State of California govern all matters arising from or related to this Agreement.

12.4 Jurisdiction and Venue. This Agreement is signed and performed in Fresno County, California. Contractor consents to California jurisdiction for actions arising from or related to this Agreement, and, subject to the Government Claims Act, all such actions must be brought and maintained in Fresno County.

12.5 Construction. The final form of this Agreement is the result of the parties’ combined efforts. If anything in this Agreement is found by a court of competent jurisdiction to be 1 2
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11 ambiguous, that ambiguity shall not be resolved by construing the terms of this Agreement against either party.

12.6 Days. Unless otherwise specified, “days” means calendar days.

12.7 Headings. The headings and section titles in this Agreement are for convenience only and are not part of this Agreement.

12.8 Severability. If anything in this Agreement is found by a court of competent jurisdiction to be unlawful or otherwise unenforceable, the balance of this Agreement remains in effect, and the parties shall make best efforts to replace the unlawful or unenforceable part of this Agreement with lawful and enforceable terms intended to accomplish the parties’ original intent.

12.9 Nondiscrimination. During the performance of this Agreement, the Contractor shall not unlawfully discriminate against any employee or applicant for employment, or recipient of services, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, military status or veteran status pursuant to all applicable State of California and federal statutes and regulation.

12.10 No Waiver. Payment, waiver, or discharge by the County of any liability or obligation of the Contractor under this Agreement on any one or more occasions is not a waiver of performance of any continuing or other obligation of the Contractor and does not prohibit enforcement by the County of any obligation on any other occasion.

12.11 Entire Agreement. This Agreement, including its exhibits, is the entire agreement between the Contractor and the County with respect to the subject matter of this Agreement, and it supersedes all previous negotiations, proposals, commitments, writings, advertisements, publications, and understandings of any nature unless those things are expressly included in this Agreement. If there is any inconsistency between the terms of this Agreement without its exhibits and the terms of the exhibits, then the inconsistency will be resolved by giving precedence first to the terms of this Agreement without its exhibits, and then to the terms of the exhibits.
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12 12.12 No Third-Party Beneficiaries. This Agreement does not and is not intended to create any rights or obligations for any person or entity except for the parties.

12.13 Authorized Signature. The Contractor represents and warrants to the County that:
(A) The Contractor is duly authorized and empowered to sign and perform its obligations under this Agreement.
(B) The individual signing this Agreement on behalf of the Contractor is duly authorized to do so and his or her signature on this Agreement legally binds the Contractor to the terms of this Agreement.

12.14 Electronic Signatures. The parties agree that this Agreement may be executed by electronic signature as provided in this section.
(A) An “electronic signature” means any symbol or process intended by an individual signing this Agreement to represent their signature, including but not limited to (1) a digital signature; (2) a faxed version of an original handwritten signature; or (3) an electronically scanned and transmitted (for example by PDF document) version of an original handwritten signature.
(B) Each electronic signature affixed or attached to this Agreement (1) is deemed equivalent to a valid original handwritten signature of the person signing this Agreement for all purposes, including but not limited to evidentiary proof in any administrative or judicial proceeding, and (2) has the same force and effect as the valid original handwritten signature of that person.
(C) The provisions of this section satisfy the requirements of Civil Code section 1633.5, subdivision (b), in the Uniform Electronic Transaction Act (Civil Code, Division 3, Part 2, Title 2.5, beginning with section 1633.1).
(D) Each party using a digital signature represents that it has undertaken and satisfied the requirements of Government Code section 16.5, subdivision (a), paragraphs (1) through (5), and agrees that each other party may rely upon that representation.
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13 (E) This Agreement is not conditioned upon the parties conducting the transactions under it by electronic means and either party may sign this Agreement with an original handwritten signature.

12.15 Counterparts. This Agreement may be signed in counterparts, each of which is an original, and all of which together constitute this Agreement. [SIGNATURE PAGE FOLLOWS]
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13 The parties are signing this Agreement on the date stated in the introductory clause.

CITY OF FRESNO,
A California municipal corporation

By:___________________________
Paco Balderrama, Chief of Police
Fresno Police Department

APPROVED AS TO FORM:

ANDREW JANZ
City Attorney

By: _________________________
Jennifer M. Wharton Date
Deputy City Attorney

ATTEST:

TODD STERMER, CMC
City Clerk

By: _________________________
Deputy Date

COUNTYOF FRESNO,
A California Charter Law county

By:

Nathan Magsig
Chairman of the Board of Supervisors

ATTEST:

BERNICE E. SEIDEL
Clerk of the Board of Supervisors
County of Fresno, State of California

By: ______________________________
Deputy

Addresses:

CITY:

Fresno Police Department
Attention: Paco Balderrama
Chief of Police
2323 Mariposa St. #2075
Fresno, CA 93721

Attachments:

1. Exhibit A – Scope of Services

2. Exhibit B – Self-Dealing Transaction Disclosure Form

3. Exhibit C – Insurance Requirements

For accounting use only:

Org No.: 34309999
Account No.: 7295
Fund No.: 0001
Subclass No.: 10000
01/30/2024

Exhibit B
B-1
Self-Dealing Transaction Disclosure Form
In order to conduct business with the County of Fresno (“County”), members of a contractor’s board of directors (“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 used 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.

The form must be signed by the board member that is involved in the self-dealing transaction described in Sections (3) and (4).

Exhibit B
B-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:

Exhibit C
C-1
Insurance Requirements

1. Required Policies
Without limiting the indemnification of each party as stated herein, it is understood and agreed that County and Contractor shall each maintain, at their sole expense, insurance policies or self- insurance programs including, but not limited to, an insurance pooling arrangement and/or Joint Powers Agreement to fund their respective liabilities including general liability, automotive liability, workers’ compensation and employers’ liability. Evidence of Insurance, e.g., Certificates of Insurance or other similar documentation, shall be provided at the request of either party under this Agreement.

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