OPERATING AGREEMENT
[HUB Resource Center]
THIS AGREEMENT (herein referred to as the "Agreement") is entered into this day of , 2024, by and between the CITY OF ORANGE, a municipal corporation ("City"), and THE HUB OC, a California nonprofit corporation ("HUB") (“Parties”), with reference to the following:
A. City owns or controls property located at 517 W. Struck Avenue, Orange, CA 92866, which is generally depicted on the map attached hereto as Exhibit A, and referred to herein as the Homeless Resource Center (“HRC”); and
B. Senate Bill 104 (“SB 104”) amended and added items of appropriation to the California State Legislature’s spending plan, as contained in the Budget Act of 2022 and the Budget Act of 2023; and
C. The City of Orange received two (2) allocations under SB 104, totaling $3 million dollars, for support of the “Homeless Resource Center,” to reflect legislative priorities related to housing, based on the City’s request for funding for the HRC made through Senator Umberg’s Office and Assemblyman Avelino Valencia’s Office; and
D. Specifically, Section 19.564(a)(32) of the Budget Act of 2023 allocated One Million Dollars ($1,000,000.00) to “the City of Orange: Homeless Resource Center” and Section
19.564(a)(66) of the Budget Act of 2023 allocated Two Million Dollars ($2,000,000.00) to “the City of Orange for support of the Homeless Resource Center”; and
E. The City shall establish the allowable use of funds for the purpose of support to the HRC, as required by Section 19.564 of the Budget Act of 2023; and
F. To fulfill this condition, City desires to enter in this Agreement with the HUB to operate the HRC available to provide services including but not limited to laundry, shower, restroom, food, medical aid, and social services provided for free for the benefit of the unhoused or most vulnerable in the community; and
G. The City Council finds the HRC furthers the City’s mission and purpose of providing community programs to the unhoused and most vulnerable in the community; and
H. The HUB has declared its intention to fulfill this public purpose to operate the HRC solely to provide free human and social services and for no other use or purpose; and
I. This Agreement shall constitute the legally binding Agreement between the Parties under Section 19.564 of the Budget Act of 2023 Guidelines.
2 NOW, THEREFORE, the parties hereto mutually agree as follows:
1. Term of Agreement; Extensions.
A. The term of this Agreement shall commence on June 1, 2024, and shall expire June 30, 2029, unless terminated earlier in accordance with the provisions of this Agreement.
B. Either party may terminate this Agreement, in whole or in part, at any time and for any reason upon ninety (90) days written notice.
C. Parties mutually agree that this Agreement is non-transferrable.
D. Parties mutually agree that this Agreement does not create a constitutionally protected property interest.
E. City Manager or their designee have the authority to authorize extensions to this Agreement and/or reasonably resolve any disputes related to this Agreement.
F. The HRC is subject to any conditions, restrictions, reservations, exceptions, encumbrances, rights, and easements, whether of record or not, including but not limited to those referred to herein.
2. Reimbursement. The total no -to-exceed budgeted by the City Council and available for reimbursement for eligible expenses incurred is the sum of TWO MILLION NINE HUNDRED SEVENTY THOUSAND DOLLARS and 00/100 ($2,970,000.00) the distribution of which is subject to the terms and conditions herein.
The City will reimburse for eligible expenses under SB 104 pursuant to Section 19.564 of the Budget Act of 2023 as follows:
A. Eligible Expenses under SB 104 includes the direct costs of providing services and resources to the unhoused and most vulnerable in the community, including but not limited to meals and nonperishable food items to go, showers, laundry, mail, bathrooms, clothing, hygiene kits, pet services, medical/dental/vision services, professional job training services (including resuming writing), entrance into the Coordinated Entry System for shelter access, access to other housing resources, social services, case management, mental health services, literacy programs, Veteran Services, maintenance, repair and site improvements of the HRC, and any other services fostering the continuum of care. The parties may mutually agree to modify the services to be provided.
B. Eligible expenses related to the cost of maintaining, repairing, and rehabilitating the infrastructure and site at 517 W. Struck Avenue, Orange, CA 92866 shall not exceed
C. $1,000,000.00.
D. Eligible expense related to the operational costs in delivering direct services and resources at the HRC shall not exceed $1,970,000.00.
3 E. Total eligible reimbursement for administrative expenses incurred as indirect operational costs shall not exceed 15% of the total Agreement amount.
3. Financial and Reporting Responsibilities.
A. At all times during the term of this Agreement, City and the HUB shall be in compliance with Section 19.564 of the Budget Act of 2023.
B. All eligible expenses must be spent by the HUB on or before June 30, 2027.
C. Any operational expenses outside of the regularly accepted expenses to date approved under Agreement 7374 and Agreement 7568 with the City must be submitted to the City’s Community Development Department Director for eligibility approval.
D. During the term of this Agreement, the HUB will submit invoices to the City’s Community Development Department for reimbursement. Invoices will be paid within 15 -days of approval. Advance payments for eligible expenses must be submitted in written form for City’s Community Development Director’s approval.
E. The HUB will maintain documentation of its records related to this Agreement and the HUB’s use of SB 104 funds, including but not limited to financial records and program files, throughout this Agreement and for a minimum of five years after this Agreement terminates.
Financial records related to this Agreement or the HUB use of SB 104 funds shall be developed and maintained in accordance with generally accepted accounting principles. The HUB shall make its records related to this Agreement and The HUB’s us e of SB104 funds accessible to the City’s Community Development Department upon request. The rights and obligations of the parties and the Department under this subdivision shall survive the Agreement’s termination.
F. The HUB will submit to the City’s Community Development Department by August 15 of each year an Annual Progress Report describing activities and services undertaken to targeted beneficiaries and number of clientele serviced.
4. Maintenance Responsibilities.
A. The HUB shall be responsible for maintenance operations and major building systems (i.e., HVAC, roofing, etc.). Any proposed building or site improvements by the HUB must be submitted in written form for City’s Community Services Director’s approval prior to implementation.
B. The HUB shall be solely responsible, at its sole risk and expense:
(a) to inspect, repair and maintain the HRC and improvements thereon; (b) to provide security as necessary; and
(c) to keep the HRC in a state of good and safe repair, and in a safe, clean and sanitary condition at all times.
(d) utility costs, including water, trash, recycling, and organic disposal charges and any routine janitorial services.
4 5. Operational Responsibilities.
A. The HUB shall operate the HRC during the following hours and days:
(a) Monday to Friday: 9:00am to 3:00pm
(b) Saturday: 9:00am to 1:00pm.
The HUB shall submit a written request to the City’s Community Services Director for any operation beyond these specified hours and days.
B. The HUB must ensure an adequate number of staff and/or volunteers are on site each day to effectively and safely manage and monitor all activities in and around the HRC.
C. The HUB shall conduct all activities under this Agreement to prevent public nuisance on or in the vicinity of the HRC.
D. City reserves the right to require the HUB to provide a plan that must be approved by the City’s Community Services Director for additional security if it is determined in the future that there are safety issues that are detrimental to the patrons and general public that cannot be adequately managed by staff and volunteers.
E. City is not responsible for any maintenance, repair or security of the HRC and any improvements thereon, or for the protection of persons and property thereon.
F. City has the right to inspect the property at any time and the right to request reports regarding the feasibility and success of the operation.
6. Non-Discrimination.
A. The HUB shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, mental or physical disability, or other basis prohibited by applicable law. The HUB agrees to post in conspicuous places, available to employees and applicants for employment, a notice setting forth provisions of this non- discrimination clause.
B. The HUB shall not discriminate in the delivery of services hereunder to Orange residents on the basis of race, color, religion, sex, national origin, mental or physical disability, or any other basis prohibited by applicable law. The HUB shall further comply with the Civil Rights Act of 1964, as amended, and all regulations applicable thereto.
7. Compliance with Laws. The HUB shall comply with all federal, state and local laws, ordinances, regulations and directives applicable to the performance of this Agreement. The HUB shall further keep and maintain in effect any and all licenses, permits, notices and certificates as required by law.
5 8. Independent Contractor.
A. At all times during this term of this Agreement, the HUB shall be an independent contractor and not an employee of City. City shall have the right to control the HUB only insofar as the result of the HUB’s services rendered pursuant to this Agreement. City shall not have the right to control the means by which the HUB accomplishes services rendered pursuant to this Agreement.
The HUB shall be solely responsible for, and shall indemnify, defend and save City harmless from all matters relating to the payment of its agents and employees, including compliance with social security withholding and all other wages, salaries, benefits, taxes, exactions, and regulations of any nature whatsoever. The HUB acknowledges that it and any agents or employees employed by the HUB shall not, under any circumstances, be considered employees of City, including but not limited to, sick leave, vacation leave, holiday pay, Public Employees Retirement System benefits, or health, life, dental, long-term disability or workers’ compensation insurance benefits.
B. Except as City may specify in writing, the HUB shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. The HUB shall have no authority, express or implied, to bind City to any obligation whatsoever.
9. Damage to City Property. The HUB shall be liable for and shall pay to City the cost of any damage of any kind whatsoever to any property of City, including loss of use thereof, arising from or in any way related to (i) the acts or omissions of the HUB’s Representatives; (ii) or any breach by the HUB of any of its obligations under this Agreement. Neither the HUB nor any of its Representatives shall remove any property of any type from the HRC without the express prior written consent of City.
10. Indemnification. Both parties agree to indemnify and hold harmless each other, their officers, directors, employees, and agents from and against any and all claims, liabilities, damages, losses, costs, and expenses, including reasonable attorneys' fees, arising out of or relating to any breach of this agreement or any negligent or wrongful act or omission by either party, its officers, directors, employees, or agents, provided that such claim, liability, damage, loss, cost, or expense was not caused by the willful misconduct or gross negligence of the indemnified party.
11. Third Party Property Damage or Personal Injury. City and Indemnitees shall not be liable for any damage of any kind to the HRC or any persons entering the HRC, including loss of use of any such property, or for any injury of any kind whatsoever to any person entering the HRC, arising from any cause whatsoever, and the HUB hereby waives all claims and demands.
12. Insurance. The HUB shall carry workers’ compensation insurance as required by law for the protection of its employees during the progress of the work. The HUB understands that it is an independent contractor and not entitled to any workers’ compensation benefits under any City program.
A. The HUB shall maintain during the life of this Agreement the following minimum amount of comprehensive general liability insurance or commercial general liability insurance: the greater of (1) Two Million Dollars ($2,000,000.00) per occurrence; or (2) all the insurance 6 coverage and/or limits carried by or available to the HUB. Said insurance shall cover bodily injury, death and property damage and be written on an occurrence basis.
B. The HUB shall maintain during the life of this Agreement, the following minimum amount of automotive liability insurance: the greater of (1) a combined single limit of One Million Dollars ($1,000,000.00); or (2) all the insurance coverage and/or limits carried by or available to the HUB. Said insurance shall cover bodily injury, death and property damage for all owned, non - owned and hired vehicles and be written on an occurrence basis.
C. Any insurance proceeds in excess of or broader than the minimum required coverage and/or minimum required limits which are applicable to a given loss shall be available to City. No representation is made that the minimum insurance requirements of this Agreement are sufficient to cover the obligations of the HUB under this Agreement.
D. Each policy of general liability and automotive liability shall provide that City, its officers, officials, agents, and employees are declared to be additional insureds under the terms of the policy. A policy endorsement to that effect shall be provided to City along with the certificate of insurance. In lieu of an endorsement, City will accept a copy of the policy(ies) which evidences that City is an additional insured. The minimum coverage required shall apply to City as an additional insured. Any umbrella liability insurance that is provided as part of the general or automobile liability minimums set forth below shall be maintained for the duration of the Agreement.
E. The insurance policies maintained by the HUB shall be primary insurance and no insurance held or owned by City shall be called upon to cover any loss under the policy. The HUB will determine its own needs in procurement of insurance to cover liabilities other than as stated above.
F. All insurance maintained by the HUB shall be issued by companies admitted to conduct the pertinent line of insurance business in California and having a rating of Grade A or better and Class VII or better by the latest edition of Best Key Rating Guide.
G. The HUB shall immediately notify City if any required insurance lapses or is otherwise modified and cease performance of this Agreement unless otherwise directed by City. In such a case, City may procure insurance or self-insure the risk and charge the HUB for such costs and any and all damages resulting therefrom.
H. The HUB agrees that in the event of loss due to any of the perils for which it has agreed to provide insurance, the HUB shall look solely to its insurance for recovery. The HUB hereby grants to City, on behalf of any insurer providing insurance to either the HUB or City with respect to the services of the HUB herein, a waiver of any right to subrogation which any such insurer may acquire against City by virtue of the payment of any loss under such insurance.
13. Waiver. Failure on the part of either party to enforce any provision of this Agreement may not be construed as a waiver of the right to later compel enforcement of that provision, or any other provision.
7 14. Notice. Except as otherwise provided herein, all notices required under this Agreement shall be in writing and delivered personally, by e -mail, or by first class U.S. mail, postage prepaid, to each party at the address listed below. Either party may change the notice address by notifying the other party in writing. Notices shall be deemed received upon receipt of same or within three (3) days of deposit in the U.S. Mail, whichever is earlier. Notices sent by e- mail shall be deemed received on the date of the e-mail transmission.
“THE HUB OC” “CITY”
THE HUB OC City of Orange
1234 W. Collins Ave. 230 E. Chapman Avenue
Orange, CA 92867 Orange, CA 92866
Attn.: Holiday Zimmerman, CEO Attn.: Leslie Hardy, Community Services Director
Telephone: (949) 466-2505 Telephone: (714) 744-7264
E-Mail: [email protected] E-Mail: [email protected]
15. Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to its subject matter. There are no representations, agreements, or understandings, whether oral or written, between the parties relating to the subject matter of this Agreement that are not fully expressed in this Agreement. This Agreement is deemed to be equally drafted by both parties.
16. Modification. This Agreement may only be modified by a writing signed by both parties.
17. Severability. If any terms or provisions of this Agreement shall be found to be void or contrary to law, such term or provision shall, but only to the extent necessary to bring this Agreement within the requirements of law, be deemed to be severable from the other terms and provisions hereof, and the remainder of this Agreement shall be given effect as if the Parties had not intended the severed term herein.
18. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signatures transmitted via facsimile and electronic mail shall have the same effect as original signatures.
19. Governing Law and Venue . This Agreement shall be construed in accordance with and governed by the laws of the State of California and the HUB agrees to submit to the jurisdiction of California courts. Venue for any dispute arising under this Agreement shall be in Orange County, California.
[Signatures on next page]
8 IN WITNESS WHEREOF, City and the HUB have entered into this Agreement on the year and day first above written.
“CITY”
CITY OF ORANGE, a municipal corporation
Daniel R. Slater, Mayor
ATTEST:
Pamela Coleman
APPROVED AS TO FORM:
Mike Vigliotta, City Attorney
“THE HUB”
THE HUB OC, a
California nonprofit corporation
Holiday Zimmerman
√NA
EXHIBIT "A"
MAP OF HOMELESS RESOURCE CENTER
[Behind this sheet]
The HRC is located at 517 W. Stuck Avenue, Orange, CA 92866. The HRC is located at the terminus of W. Struck and is adjacent to the Atchison, Topeka, and Santa Fe Rail Road. Reference map included below.