Standard Contract Page 1 of 23
THE INFORMATION IN THIS BOX IS NOT A PART OF THE CONTRACT AND IS FOR COUNTY USE ONLY
CAO – Finance and Administration
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Contractor City of Rialto
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Contract Term
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This Agreement for the Use of the Local Allocation of California Opioid Settlement Funds (“Agreement”) is made and entered into on the date this Agreement is fully executed by and between SAN BERNARDINO COUNTY (“County”) and CITY OF RIALTO (“City”). City and County may be referred to individually as “ Party” and or collectively as “Parties.”
WHEREAS, the United States is facing an ongoing public health crisis of opioid abuse, addiction, overdose, and death. The State of California and California counties and cities have spent and continue to spend millions of dollars each year to address the direct consequences of this crisis; and
WHEREAS, in response to the opioid crisis, counties, cities, and states across the country filed lawsuits to hold opioid manufacturers, distributors, pharmacies, and others responsible for the harms caused by th eir deception, negligence, and creation of a public nuisance; and
WHEREAS, on or about July 19, 2018, the County filed a lawsuit in the United States District Court for the Central District of California against numerous opioid manufacturers and distributors alleging that as a result of the unlawful conduct of the defendants, the opioid crisis resulted, which caused damage to the County and its residents; and
Contract Number
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WHEREAS, the County’s lawsuit was transferred to the United States District Court for the Northern District of Ohio to become part of the multidistrict litigation (“MDL”), consisting of thousands of lawsuits brought by various states and local subdivisions, including counties, cities, and special districts, against a number of opioid distributors and manufacturers; and
WHEREAS, on or about, July 21, 2021, distributors McKesson Corporation, Cardinal Health, Inc., and AmerisourceBergen Corporation (collectively, “Distributors”), and manufacturer s Johnson & Johnson, Janssen Pharmaceuticals, Inc., Ortho -McNeil-Janssen Pharmaceuticals, Inc., and Janssen Pharmaceutica, Inc. (collectively, “Janssen”) tentatively reached two separate settlements (hereinafter referred to as the “Distributor Settlement Agreement” and “Janssen Settlement Agreement,” respectively) in the MDL , which allow for participation by eligible non-litigating Local Subdivisions; and
WHEREAS, City is an eligible non -litigating Local Subdivision and has submitted the requisite documentation necessary to participate in the Distributor and Janssen settlements;
WHEREAS, under the Distributor and Janssen Settlement Agreements, the states and their Local Subdivisions may enter into allocation agreements to govern how the settlements funds from the two settlements coming to a state will be allocated to the state and its Local Subdivisions; and
WHEREAS, the State of California (“State”) and its Local Subdivision s have entered into Allocation Agreements for both the Distributor and Janssen settlements, which provide that each eligible Local Subdivision that participates in the settlements will have its Local Allocation go to the county where the subdivision is located, unless the Local Subdivision notifies the Settlement Fund Administrator, at least 60 days before each payment date, that it elects to take a direct distribution of its Local Allocation; and
WHEREAS, the City has decided it will not take a direct distribution of its Local Allocation, and will instead have its Local Allocation distributed to the County; and
WHEREAS, the parties wish to set forth the terms as to the County’s use of the City’s Local Allocation; and
NOW, THEREFORE , in consideration of the preceding recitals, together with the mutual covenants hereinafter contained, the parties hereto mutually agree that the above recitals are true and correct and incorporated into the terms of this Agreement and as follows:
A. DEFINITIONS
a. CA Abatement Accounts Fund shall mean “CA Abatement Accounts Fund” as defined in the Allocation Agreements.
b. Allocation Agreement(s) means the allocation agreements entered into by and between the State and its Local Subdivisions specifying how the settlement funds from the Distributor and Janssen settlements will be distributed to the State and its Local Subdivisions. These agreements are entitled, “Proposed California State -Subdivision Agreement Regarding Distribution and Use of Settlement Funds – Distributor Settlement” and “Proposed California State-Subdivision Agreement Regarding Distribution and Use of Settlement Funds – Janssen Settlement.”
c. DHCS is the California Department of Health Care Services.
d. Local Allocation means a Local Subdivision’s share of the settlement funds from the Distributor and Janssen settlements, as set forth in Appendix 1 to the Allocation Agreements.
e. Local Subdivision(s) means cities and counties.
f. Master Agreements shall refer to the Distributor Settlement Agreement and the Janssen Settlement Agreement.
g. Settlement Fund Administrator shall mean the “Settlement Fund Administrator” as defined in the Master Agreements.
B. SCOPE
a. This Agreement supplements and is subject to the terms of the Master Agreements and the Allocation Agreements and any amendments thereto. If any term of this Agreement is inconsistent with a mandatory term of the Master Agreements or the Allocation Agreements, the order of the governing document shall be as follows: Master Agreements, Allocation Agreements, and last, this Agreement.
b. This Agreement governs the County’s use of the City’s Local Allocation paid directly to the County.
C. USE OF CITY’S LOCAL ALLOCATION
a. Participation
I. City shall have all of its Local Allocation paid directly to the County.
II. City shall not, at any time, advise the Settlement Fund Administrator that it request s direct payment of its Local Allocation.
III. The parties understand that the Local Allocation is payable over an approximate 18 year period. The parties further understand that the yearly disbursement amount of the Local Allocation payment may vary.
b. County’s Use of the City’s Local Allocation
I. The City’s Local Allocation will become part of the County’s share of the CA Abatement Accounts Fund, which will be:
1. Used by County in accordance with Section 4.B.ii (Use of CA Abatement Account Funds) of the Allocation Agreements; and
2. Reported on by County in accordance with Section 4.B.iii (CA Abatement Accounts Fund Oversight) of the Allocation Agreements.
II. The parties understand and agree that the City’s Local Allocation that will be distributed to the County may only be used by County for future opioid remediation as described in Exhibit E to the Master Agreements, attached hereto as Attachment I.
III. The parties also understand and agree that no less than 50% of the CA Abatement Accounts Fund in each calendar year will be used for one or more of the following High Impact Abatement Activities:
1. The provision of matching funds or operating costs for substance us e disorder facilities within the Behavioral Health Continuum Infrastructure Program;
2. Creating new or expanded Substance Use Disorder (“SUD”) treatment infrastructure;
3. Addressing the needs of communities of color and vulnerable populations (including she ltered and unsheltered homeless populations) that are disproportionately impacted by SUD;
4. Diversion of people with SUD from the justice system into treatment, including by providing training and resources to first and early responders (sworn and non - sworn) and implementing best practices for outreach, diversion and deflection, employability, restorative justice, and harm reduction; and/or
5. Interventions to prevent drug addiction in vulnerable youth.
IV. County understands and agrees that it is responsible for the reporting requirements to DHCS as specified in Section 5 of the Allocation Agreements.
V. County understands and agrees that it is responsible for responding to any DHCS oversight inquiries and/or requests as specified in Section 4.B.iii. of the Allocation Agreements.
VI. County will track all deposits and expenditures of CA Abatement Accounts Funds consistent with Section 5(c) of the Allocation Agreements.
D. GENERAL CONTRACT REQUIREMENTS
D.1 Recitals
The recitals set forth above are true and correct and incorporated herein by this reference.
D.2 Assignability
Neither party may assign this Agreement without the prior written consent of the other party.
D.3 Attorney’s Fees and Costs
If any legal action is instituted to enforce any party’s rights hereunder, each party shall bear its own costs and attorney fees, regardless of who is the prevailing party.
D.4 Choice of Law
This Agreement shall be governed by and construed according to the laws of the State of California.
D.5 Legality and Severability
The parties’ actions under the Agreement shall comply with all applicable laws, rules, regulations, court orders and governmental agency orders. The provisions of this Agreement are specifically made severable. If a provision of the Agreement is terminated or held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall remain in full effect.
D.6 Mutual Covenants
The parties to this Agreement mutually covenant to perform all of their obligations hereunder, to exercise all discretion and rights granted hereunder, and to give all consents in a reasonable manner consistent with the standards of “good faith” and “fair dealing”.
D.7 Relationship of the Parties
Nothing contained in this Agreement shall be construed as creating a joint venture, or partnership, between the Parties hereto, nor shall either Party have the right, power or authority to create an obligation or duty, expressed or implied, on behalf of the other Party hereto.
D.8 Termination for Convenience
Except as otherwise specified in this provision, the County and the City each reserve the right to terminate the Agreement, for any reason, with a thirty (30) day written notice of termination. In the event of termination of this Agreement, the City shall not be entitled to any of the City’s Local Allocation that (1) had already been distributed to the County prior to the effective date of termination, or (2) is scheduled to be dist ributed to the County within 60 days of the notice of termination.
D.9 Notice
All written notices provided for in this Agreement or which either party desires to give to the other shall be deemed fully given, when made in writing and either served perso nally, or deposited in the United States mail, postage prepaid, and addressed to the other party as follows:
To County: To City:
County Administrative Office – Finance & Administration Matthew Erickson, Chief Financial Officer
385 N. Arrowhead Ave. 4th Floor
San Bernardino, CA 92415-0123
Notice shall be deemed communicated two (2) County working days from the time of mailing if mailed as provided in this paragraph.
D.10 Venue
The parties acknowledge and agree that this Agreement was entered into and intended to be performed in San Bernardino County, California. The parties agree that the venue of any action or claim brought by any party to this Agreement will be the Superior C ourt of California, San Bernardino County, San Bernardino District. Each party hereby waives any law or rule of the court, which would allow them to request or demand a change of venue. If any action or claim concerning this Agreement is brought by any t hird party and filed in another venue, the parties hereto agree to use their best efforts to obtain a change of venue to the Superior Court of California, San Bernardino County, San Bernardino District.
D.11 Informal Dispute Resolution
In the event of any dispute, claim, question or disagreement arising from or relating to this Agreement or breach thereof, the parties hereto shall use their best efforts to settle the dispute, claim, question or disagreement. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties.
E. TERM OF AGREEMENT
This Agreement is effective as of the date fully executed and expires following the final settlement payout, but may be terminated earlier in accordance with the provisions of this Agreement.
F. INDEMNFICATION
F.1 County agrees to indemnify, defend (with counsel reasonably approved by City) and hold harmless City and its officers, employees, agents, and volunteers from any and all claims, actions or losses, damages, and/or liability resulting from County’s negligent acts o r omissions which arise from County’s performance of its obligations under this Agreement.
F.2 City agrees to indemnify, defend (with counsel reasonably approved by County), and hold harmless County and its officers, employees, agents, and volunteers from any and all claims, actions or losses, damages, and/or liability resulting from City’s negligent acts or omissions which arise from City’s performance of its obligations under this Agreement.
F.3 In the event County and/or City is found to be comparatively at fault for any claim, action, loss or damage which results from their respective obligations under the Agreement, County and/or City shall indemnify the other to the extent of its comparative fault.
G. INSURANCE
City and County are authorized self-insured public entities for purposes of Professional Liability, General Liability, Automobile Liability and Workers’ Compensation and warrant that through their insurance
policies or respective programs of self-insurance, they have adequate coverage or resources to protect against liabilities arising out of the performance of the terms, conditions or obligations of this Agreement.
H. SIGNATURES
This Agreement may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, and such counterparts shall together constitute one and the same Agreement.
The parties shall be entitled to sign and transmit an electronic signature of this Agreement (whether by facsimile, PDF or other email transmission), which signature shall be binding on the party whose name is contained therein. Each party providing an electronic signature agrees to promptly execute and deliver to the other party an original signed Agreement upon request.
I. ENTIRE AGREEMENT
This Agreement, including Attachment I, which is attached hereto and incorporated by reference, represents the final, complete and exclusive agreement between the parties hereto. Any prior agreement, promises, negotiations or representations relating to the subject matter of this Agreement not expressly set forth herein are of no force or effect. This Agreement is executed without reliance upon any promise, warranty or representation by any party or any representative of any party other than those expressly contained herein. Each party has carefully read this Agreement and signs the same of its own free will.
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IN WITNESS WHEREOF, County and City have each caused this Agreement to be subscribed by its respective duly authorized officers, on its behalf.
SAN BERNARDINO COUNTY CITY OF RIALTO
By
Name: ___________________________________
Title: Chief Financial Officer
(Authorized signature - sign in blue ink)
Name
(Print or type name of person signing contract)
Title
(Print or Type)
Dated:
CITY OF RIALTO
By
(Authorized signature - sign in blue
ink)
Name
(Print or type name of person signing
contract)
Title
(Print or Type)
Dated
:
COUNTY USE ONLY
Approved as to Legal Form Reviewed for Contract Compliance Reviewed/Approved by Department
Charles Phan, Deputy County Counsel
Date Date Date
ATTACHMENT I