Exhibit 10.42
OPERATIONS AND MANAGEMENT AGREEMENT
for the
▇▇▇▇▇▇▇▇ County, New Mexico Adult Detention Facility
This Operations and Management Agreement for the ▇▇▇▇▇▇▇▇ County, New
Mexico Adult Detention Facility (the "Agreement") is made as of the 3rd, day of
October, 1996, by and between Correctional Services Corporation, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, (the "Contractor") and ▇▇▇▇▇▇▇▇
County New Mexico, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (the
"County"), a governmental entity of the State of New Mexico, upon the terms,
conditions and provisions herein set forth.
WITNESSETH
WHEREAS, the County has made provisions for the financing and construction
of an adult detention facility in ▇▇▇▇▇▇▇▇ County, New Mexico, which Facility,
exclusive of courtrooms, county, city and state offices, shall be known as the
▇▇▇▇▇▇▇▇ County Adult Detention Facility (the "Facility"); and, WHEREAS, the
County desires to enter into a contract under which the Contractor shall
operate, maintain and manage the Facility in compliance with all applicable
Federal, State and Local laws and ordinances; and, NOW THEREFORE, in
consideration of the mutual rights, duties, benefits and obligations herein
exchanged, the parties hereto covenant, agree and bind themselves as follows:
ARTICLE ONE
Purposes
1.01 The Contractor shall manage, supervise and operate the Facility for
the County and receive, supervise and care for each inmate that is assigned to
the Facility by the County pursuant to applicable law. The Contractor shall
accept inmates that are assigned by the County, from a jurisdiction that enters
into a Joint Powers Agreement with the County to reserve space for the on-going
placement of inmates in the Facility, or a jurisdiction that contracts with the
County on a limited basis to house one or more individuals in the Facility.
1.02 The Contractor shall manage and supervise the Facility to remain in
compliance with all local, State and Federal health, fire and safety codes and
shall document such compliance at the beginning of each fiscal year. Such
documentation shall consist of certificates from the local health department,
Fire Marshal and building inspector and copies thereof shall be forwarded to the
County as required or requested. The Facility shall be managed, operated
maintained and utilized in conformance and compliance with applicable law, the
standards and regulations of the American Corrections Association, or County
standards, whichever is higher.
1.03 The Contractor shall work cooperatively with the County and agrees
that the County shall have the right to inspect the Facility prior to the
placement of any inmate and that there shall be no
placements made until both the Contractor and the Facility are in
compliance with all contract provisions, and all standards or regulations of the
County.
1.04 Youthful offenders subject to the Juvenile Code shall not be accepted
into the Facility.
ARTICLE TWO
Term
2.01 This Agreement is effective on the date set forth in the initial
paragraph of this Agreement. The ordinal term of this Agreement shall be
three(3) years and such term shall commence on the date the first inmate shall
occupy the Facility and shall end on the third anniversary date thereafter.
2.02 The County and the Contractor may negotiate renewal of the Agreement
for an additional term of two years. Per diem rate, for daily fees for
operational and management services, increases shall be based on the increases
found in the Department of Labor s CPI-W index with the base year being 1997.
2.03 The County may unilaterally terminate this Agreement at any time only
for reason of Contractors failure to operate or cause the operation of the
Facility in compliance with the terms of this Agreement, State law, the
applicable rules and procedure of the County and/or the applicable standards of
the ACA, or default under this Agreement. However, prior to any such
termination, the County shall give written notice by certified mail to the
Contractor of such deficiency. Deficiencies shall be corrected within 30-90 days
as specifically stated in the notice. Within ten days, the Contractor shall
submit a plan of corrections to the County indicating action to be taken and the
time frame for full compliance. The County shall review the plan of correction
and shall either concur with the plan or identify corrective actions to be taken
and the time frame for completion. At the end of the specified time frame, the
County may again inspect for deficiencies at the Facility to ensure compliance
with the plan. Deficiencies that remain uncorrected may cause a one percent
penalty per day for that day's billable man-days to be imposed against the
monthly invoice of the Contractor until deficiencies are corrected.
2.04 The County may, upon 30-days written notice to the Contractor,
unilaterally terminate this Agreement on or after the second anniversary of the
effective date set forth in the initial paragraph of this Agreement. The County
shall give written notice by certified mail to the Contractor of such notice.
2.05 The Contractor may, upon 90-days written notice to the County,
unilaterally terminate this Agreement on or after the second anniversary of the
effective date set forth in the initial paragraph of this Agreement. The
Contractor shall give written notice by certified mail to the County of such
notice.
ARTICLE THREE
Facility Costs and Payments
3.01 The Contractor shall submit to the County or its designee, no later
than the third day of each month, a billing for inmates assigned from the 16th
day to the last day of the previous month, and no later than the 18th day of
each month, a billing for inmates assigned from the first day to the 15th day of
the current month.
3.02 The Contractor shall participate in an annual program evaluation and
annual audit of the Facility including the maintenance and availability of
accurate and up-to-date program, and inmate trust fund financial records for
inspection. The first evaluation and audit shall be conducted no later than the
eleventh (llth) month after the commencement of operations.
3.03 During the term of this Agreement, the County shall pay the Contractor
$35.00 per inmate per day for the operation and management services set forth
herein; which includes gross receipts tax (The term "day" means a twenty-four
hour period, or part thereof, beginning at 12 o'clock midnight-12:00 a.m.)
3.04 The County reserves the right to withhold or require return of funds
upon substantial noncompliance with applicable regulations, standards, policies
or this Agreement if the Contractor fails to remedy or cure the noncompliance
within 30 days of written notice from the County, as required in Paragraph 2.03.
3.05 The County Auditor shall make payments to the Contractor on the eighth
and twenty-third days of each month; based on the ▇▇▇▇▇▇▇▇ and invoices given to
the County by the Contractor on the 3rd and 18th day of each month.
3.06 Services that are desired by the County, or a jurisdiction in contract
with the County for detention services, that are not included in this Agreement,
shall be negotiated for between the County and the Contractor. Additional
charges for services not in the Agreement shall be as agreed upon between the
Contractor and the County and placed in an addendum to this Agreement.
3.07 The Contractor may enter into Agreement with vendors for inmate
telephone service and commissary operations at their option; during, the term of
the contract. All commission from inmate telephone service and income from
commissary operations may be utilized at the Contractor's discretion. The cost
to the inmates for commissary items shall be based on actual cost of goods plus
taxes and reasonable ▇▇▇▇-ups for overhead and personnel. Sales prices for goods
shall be comparable to that available in local retail store for the same or
similar goods. Inmate telephone service shall be in accordance with regulations
of the Public Utilities Commission.
3.08 Within 10 working days after the execution of the Agreement,
Contractor shall open an Operating Account, in the name and under the
control of the Contractor, at a bank located within the City of Gallup, New
Mexico, and deposit, or cause to be deposited, the amount of $500,000 as an
Operating Reserve (the "Operating Reserve"). Once operations have commenced,
Contractor may, during the course of operating the Facility, draw against these
funds to an amount equal to an amount then due Contractor by County. This
Operating Reserve shall be maintained, allowing for the previous sentence, at
this minimum level for 180-days past the commencement date of this Agreement.
ARTICLE FOUR
Duties of the Contractor
4.01 The Contractor Shall manage and shall operate and provided, or cause
the operation and provision under Contractor's supervision and primary
responsibility:
A. The documentation of all agreements or contracts of the County with
other jurisdictions to assure the documentation reasonably necessary for each
such contract is complete and that any such contract or Agreement is not
inconsistent with the terms of this Agreement, prior to the housing of any
inmate in the Facility pursuant to a contract between the County and another
jurisdiction.
B. All services, supplies, amenities, -benefits and equipment necessary to
comply with the terms of this Agreement and all contracts with other
jurisdictions for the housing of inmates meet or exceed State law requirements,
the rules and procedures promulgated by the County and the applicable standards
of the ACA. Should the Agreement between the county and the contractor be
terminated for any reason, at any time, those supplies and the equipment
purchased by the Contractor, and utilized in the daily operation of the
Facility, remain the property of the Contractor. The supplies and equipment
furnished by the developer or the County shall remain the property of the
County.
C. Intake facilities and inmate accounting which may encompass bookkeeping,
recordkeeping end ▇▇▇▇▇▇▇▇, system of controls, identification systems and
records, communication interface with law enforcement agencies, and such
statistical records as may be required by law.
D. Attendants to control ingress and egress, maintain the requisite level
of internal security and to monitor the activities of the inmates within the
Facility.
E. Food and beverage services shall be provided in accordance with all
applicable standards, sanitation and health codes and individualized and special
needs. All menus shall be planned and reviewed in advance by a registered
dietitian or physician. Meals shall meet the dietary requirements of the U.S.
Department of Agriculture; unless some other standard is required by the County.
Menu and food service plans shall be prepared, and a schedule shall be followed
whenever possible. Menu plans shall be kept for one year. The menus shall
contain a variety of foods and recognize special occasions and holidays. The
quality of food and beverage service provided will be periodically reviewed by
the County or its designee, and the Contractor shall correct any failure to meet
the foregoing standards noted by the County or its designee within 72 hours.
Special diets shall be provided to
inmates on the recommendation of a physician or dentist and for inmates
whose religious beliefs require it to be provided. Staff members shall supervise
inmates during meals. Inmates will be provided three meals each day, two of
which shall be hot meals. No more than 14 hours may lapse between the evening
meal and breakfast, unless a snack is provided.
F. Clothing shall be provided to inmates at least in accordance with County
standards and shall be adequate according to climate, sex, height and weight of
the inmate. Inmates shall be provided with the opportunity to shower daily and
hygiene supplies shall be provided to inmates.
G. Laundry service for inmates shall be provided in accordance with
standards. Inmates may exchange linens once each week, clean towels twice each
week, and clean clothing two times per week.
H. Procurement and purchasing.
I. Recreational services.
J. Bookkeeping and financial accounting.
K. Basic medical care.
L. Training of personnel employed at the Facility, including such security,
professional, law enforcement and cultural sensitivity training and education as
may be required by the County, applicable ACA standards, the terms of this
Agreement, third party contracts or agreements by the County, and the terms of
all insurance policies applying to the Facility.
M. All repair, upkeep, maintenance and cleaning.
N. All personnel services, miscellaneous supplies and benefits necessary to
the operations of the Facility, or care and control of inmates; including
toiletries and hygiene supplies.
0. Payment of all utility charges and fees.
P. An inventory of the Facility furnishings at start up, and thereafter
keep, maintain and replace such furnishings, fixtures, and equipment furnished
by the County or the Developer with equivalent quality.
Q.Proper bedding, to each inmate and personal property storage
R. The provision of all such other services or tangible things that are
necessary to care for the inmates housed at the Facility; including all services
and tangible things required by the County, standards or directives; to include
access to a law library.
S. The Contractor shall provide transportation for inmates to and from
locations within Gallup, New Mexico, including taking Native Americans to the
Indian Health Services Hospital in Gallup, as required for Court hearing,
medical reasons or other pertinent reasons. It is the Contractor's
responsibility to provide armed security for inmates outside the Facility except
as noted in section 5.10 of this Agreement.
4.02 Contractor, with the County's assistance, where needed, shall obtain
and maintain all of the proper and required local, State and federal permits,
licenses and certifications necessary for the Facility to serve as an Adult
Detention Facility. The Contractor shall maintain such certifications as
required. If, after such certifications have been obtained, the Contractor is
required by the County, State law, other applicable law, court order, rules and
procedures, or ACA standards, to perform additional work or services, or to
modify the Facility, the County and the Contractor shall consult and, if
appropriate, agree upon a temporary increase in the schedule of payments
sufficient over a reasonable period of time to reimburse the Contractor for the
cost of such operational modifications.
4.03 Notwithstanding anything contained herein to the contrary, the County
shall have no liability for any employees, agents, subcontractors or assigns of
the Contractor. The Contractor hereby agrees to indemnify and hold the County
and its officials, officers, or employees, harmless from all costs, claims,
expenses and liabilities whatsoever which may be incurred by or arising from any
and all acts done or omitted to be done by Contractor or employees, agents,
subcontractors and assigns of the Contractor, in connection with services
performed or to be performed under this Agreement. The Contractor shall provide
the County with copies of incident reports and claims and the types of claims
made against the Contractor each quarter.
4.04 The interviewing, hiring, training, assignment, certification,
control, management compensation, promotion and termination of all members of
the Facility's administration and staff shall be the responsibility and
obligation of the Contractor. The Contractor shall furnish reports on such
matters to the County when so requested. The Contractor will use its best
efforts to hire and train local personnel. Staffing shall conform to the
following:
A. The qualifications, selection, training and staff development shall
comply with County standards, and written job descriptions for all employee
positions at the Facility shall be prepared and provided to the County.
B. A sufficient number of trained, qualified employees shall be on duty,
awake and fully dressed at all times to meet all contractual requirements and to
monitor Facility control, security end inmate safety.
C. The County shall be notified within 72 hours of any
change in the position of Facility Administrator.
D. Adequate staff with provision for supervision of male and female inmates
shall be maintained in accordance with all legal requirements, including County
standards.
E. Hiring preference shall be given to current, qualified jail employees.
4.05 The Contractor shall use the best efforts to purchase goods and
services within the County.
4.06 The Contractor is associated with the County for the purposes and to
the extent set forth in this Agreement for the performance of operations and
management services for the Facility, and Contractor is and shall be an
independent contractor and, subject to the terms of this Agreement, shall have
the sole right to supervise, manage, operate, control, and direct the
performance of the details incident to its duties under this Agreement. Nothing
contained in this Agreement shall be deemed or construed to create a partnership
or joint venture, to create the relationships of an employer-employee or
principal agent, or to otherwise create any liability for the County whatsoever
with respect to the indebtedness, liabilities, and obligations of the
Contractor. The Contractor shall be solely responsible for payment of all
federal income, F.I.C.A., and other taxes owed or claimed to be owed by the
Contractor, arising out of this Agreement, and the Contractor shall indemnify
and hold the County harmless from and against, and shall defend the County
against any and all losses, damages, claims, costs, penalties, liabilities, and
expenses whatsoever arising or incurred because of, incident to, or other-wise
with respect to any such taxes.
4.07 The Contractor shall maintain the exterior walls, roof, foundation,
and all outside utilities in good repair, except for reasonable wear and tear.
Such maintenance includes the duty to repair and/or replace components of the
building that may be damaged due to neglect; with quality equivalent to the
original component.
A. The Contractor shall not be liable to make repairs or replacement to any
exterior wall, roof, foundation, or outside utility that is the result of design
or construction flaws. The County shall pass through to the Contractor any and
all warranties from the Project Design/Builder.
4.08 The Contractor shall provide the services hereinafter set forth at its
own expense and risk:
A. Maintain all interior walls and ceilings, window glass, doors,
electrical fixtures, and plumbing fixtures in good repair; painting all interior
wall, as required, and furnishing furnace filters.
B. Include all usual janitorial and maintenance service including sweeping
and mopping of floors, trash disposal, cleaning of window, dusting and
replacement of light bulbs.
C. Shall maintain grounds of the Facility, mowing, trimming, watering of
plants and lawn to maintain a good cosmetic appearance of the grounds.
D. Periodically have the Facility fumigated and/or sprayed for insects and
rodents.
ARTICLE FIVE
Medical Care
5.01 Basic medical care will be made available by Contractor, at
Contractor's sole cost, to all inmates housed at the Facility. For the purposes
of this Agreement, basic medical care shall be limited to any condition which
can be "self-treated" by the inmates or which may be treated by a lay technician
acting under guidelines provided by a medical doctor, including first aid for
emergencies. This shall include dispensing, "over the counter" medications which
have been approved for inventory by the Facility's medical authority.
5.02 Consistent with its duties to provide basic medical care the
Contractor shall establish a program which includes:
A. The training of all supervisory staff in emergency first aid procedures
and cardiopulmonary resuscitation (CPR).
B. Adopting written medical backup plans which are communicated to all
employees and inmates.
C. Maintaining, sufficient first aid supplies and equipment to adequately
support the overall basic medical care requirements of the inmate population.
D. Maintaining, replacing and replenishing medical first aid supplies and
equipment in accordance with prescribed standards recognized or approved by a
licensed health authority or organization that has expertise to evaluate, assess
and determine the potential need for or condition of the required first aid
supplies and equipment.
5.03 State certification shall apply to all health care personnel
responsible for dispensing medical services to inmates.
5.04 Except as required by lawful authority, the Contractor will not accept
or admit into the Facility any offender who represents a significant health or
medical risk. Arresting Officers must have a release from a physician for any
arrestee that has obvious medical problems such as cuts, broken bones, etc.
prior to bringing the offender to the Facility.
5.05 The Contractor shall develop workplace guidelines which addresses all
airborne and blood borne pathogens, communicable diseases including HIV.
Contractor shall develop policies of confidentiality and an employee/client
education program in compliance with State laws.
5.06 The Contractor shall provide the County with copies of all
medical related policies and procures at, on or before the commencement of
this Agreement.
5.07 Inmates shall receive a physical screening by qualified health care
personnel within seven days of admittance into the Facility. Facility nursing
staff shall perform the screenings and make referrals to the local hospital as
required.
5.08 Inmate medical files shall be confidential and accessed by authorized
health care personnel only.
5.09 All prescription drugs, prostheses, dental treatment, psychiatric
care, eye glasses and medical treatment that is not a part of the routine
treatment at the Facility shall be at the expense of the inmate or the County.
5.10 Should an inmate be hospitalized for any reason, the Contractor shall
be responsible for maintaining security, including the Indian Health Services
Hospital in Gallup, of the inmate for the first seventy-two (72) hours. Security
of inmates hospitalized for more than 72 hours shall be the responsibility of
the County.
5.11 The Contractor shall provide psychological evaluation and counseling
for inmates as necessary at the Facility.
ARTICLE SIX
Compliance With Standards
6.01 The Contractor shall prepare and adopt, prior to admitting any inmate
to the Facility, a Procedures Manual for the operation of the Facility so as to
assure that the Facility is operated fully in accordance with State and other
applicable laws and regulations, rules and procedures promulgated by the County
and applicable standards promulgated by the ACA. The Contractor shall, from time
to time, make such modifications and corrections in the said Procedures manual
as are necessary to keep the Facility in compliance with such laws, regulations
and standards. The County and the Contractor agree that the Facility shall be
operated according to those applicable standards established by the American
Correctional Association in the STANDARDS FOR ADULT ' LOCAL DETENTION FACILITIES
third edition; except where specific exception is noted in this Agreement.
6.02 The Contractor shall require that all employees at the Facility are
adequately trained and certified, as appropriate, to perform at standards
required by State and other applicable law, the rules of the County and the
applicable ACA standards.
6.03 The County and the Contractor shall agree upon a monitoring plan to
assure compliance with this agreement. The Contractor shall develop and submit
to the County a detailed plan, illustrating how Contractor intends to facilitate
evaluation and monitoring of operations, prior to receiving any inmate.
6.04 Notwithstanding, any other term or provision of this Agreement, the
minimum standards for operation and management of the Facility shall be the
standards developed by the County and those applicable ACA standards agreed upon
by the County and the Contractor.
ARTICLE SEVEN
Duties of the County
7.01 The County shall cooperate with the Contractor in all matters of law
enforcement, security and communications and shall employ its reasonable
influence and persuasion to obtain such cooperation from the law enforcement
agencies within the County and Slate
7.02 The County shall assist and cooperate with the Contractor in obtaining
and providing information needed by the Contractor in the screening of
candidates for employment; NCIC checks and driving records. The Contractor is
responsible for background and employment history checks.
7.03 It is agreed that the first priority for bed space in the Facility is
to assure space is available for such persons that are detained by the County
Sheriff, and the New Mexico State Police, and the city of Gallup. However, the
County and Contractor agree it shall be to their mutual benefit that the
Facility be utilized by an inmate population within the design limits of bed
capacity. To this end, and throughout the term of the Agreement, the County and
Contractor agree to cooperate and work to manage and limit vacancies by
contracting with other jurisdictions, the Navajo Nation, the Pueblo of Zuni, and
the City of Gallup for the housing of their offenders.
ARTICLE EIGHT
Inmate Programs, Monitoring & Staffing
8.01 The Contractor shall provide housing, supervision and programs for all
inmates including adult remedial education, counseling, and other education and
training as required by law or the County.
8.02 Orientation-All inmates entering the Facility shall complete an
orientation that includes:
A. Intake booking, including but not limited to fingerprinting and mug shot
according to the appropriate State statutes.
B. Physical examination within seven days of confinement.
C. Orientation to Facility rules and regulations.
D. Classification assignment.
E. Education, counseling assessment.
F. HIV orientation and education.
G. Literacy screening.
H. Other programs required by law or the County.
8.03 Participation by inmates in programs shall be made available by the
Contractor at no cost to the inmate.
8.04 Appropriate safeguards shall be established to enable the Contractor
to closely monitor the whereabouts of each inmate, including a daily system and
periodic accounting for all inmates assigned to the Facility and providing that
such inmates shall only be allowed to, leave the Facility to conduct court
approved business. Written policy and procedure shall follow those guidelines
from the ACA and guidelines based on generally accepted security practices.
8.05 The Contractor shall provide a designated area for family visitation
which shall accommodate visitors and also provide shelter during inclement
weather. Family visits shall be allowed five days a week during hours specified
by the Contractor.
8.06 The Contractor shall adopt Disciplinary procedures including
procedures for the processing of violations and setting the types of sanctions
which may be imposed. Each inmate shall be given the Disciplinary Rules included
in the Orientation Handbook during intake.
8.07 The Contractor shall be responsible for maintaining accurate and
complete file records, reports as necessary for each inmate. Safeguards will be
established for the protection and
confidentiality of inmate records. Records shall only be disclosed to
authorized persons on a need to know basis. Inmate records shall be maintained
for A period of three years after discharge from the Facility. Files shall
include:
A. Identification data, including but not limited to fingerprinting and mug
shot according to the appropriate State statutes.
B. Conditions of Confinement.
C. Intake forms and assessments.
D. Classification committee records.
E. Correspondence.
F. Disciplinary record.
G. Incident reports.
H. Release of information forms.
1. Medical records (in a separate file).
8.08 Inmate labor shall only be used to support the Facility or in
Community Service projects. No inmate shall perform personal services or labor
for any employee of the Facility.
8.09 Inmate trustee status shall only be given to those inmates that meet
all requirements of being appointed as a trustee:
A. Inmate must not have an aggravated with bodily harm or sexual offense.
B. Inmate must be a resident of ▇▇▇▇▇▇▇▇ County, New Mexico.
C. Inmate, with a bond administrative approval, who is a resident of a
county directly adjoining ▇▇▇▇▇▇▇▇ County.
D. Any other inmate that has been approved by the Classification Committee.
E. Inmate must not have an escape offense on record.
F. Inmate must be approved by the Classification Committee for trustee
status.
ARTICLE NINE
Liability and Indemnity
9.01 The County and the Contractor agree to jointly and severally act to
ensure that neither becomes responsible for any such actions taken with regard
to any inmate prior to the delivery of such inmate to the Contractor's
employees, officers, and agents at the Facility. To the extent possible and
allowed by law, the County and Contractor will insure that all inmate agreements
and contracts with other jurisdictions provide that the contracting jurisdiction
shall, to the extent allowed by law, defend, indemnify and hold harmless the
County and Contractor for any claims, damages or losses arising, or alleged to
have arisen from act or failures to act, including but not limited to claims of
false arrest, false imprisonment, wrongful detention, violation of civil rights,
and all other claims of a similar nature, occurring prior to the delivery of any
inmate to the Facility, or occurring after the release of any inmate therefrom
to the contracting jurisdiction or assigning agency.
9.02 Contractor agrees to and hereby does defend, hold harmless and
indemnify the County and its officers, directors, employees, agents and
representatives from and against any and all claims, damages, demands, losses,
costs, assessments and expenses incurred or suffered by the County that arise
out of or result from any cause or claim or any negligent or wrongful act or
failure to act pursuant to the provisions of this Agreement by the Contractor or
its officers, employees, agents or representatives, or its subcontractors or
assigns, but not including specifically, claims made that arise out of
negligence of the officers, directors, employees and agents of the County while
on the premises of the Facility.
A. This indemnity(s) provisions(s) is not meant to violate the public
policies regarding indemnity If a court of competent jurisdiction determines
that the provisions of Section 56-7-1 ▇▇▇▇ ▇▇▇▇, as amended, are applicable to
this Agreement, or any claim arising under this Agreement, then any Agreement to
indemnify contained in this Agreement will not extend to liability, claims,
damages, losses or expenses, including attorneys fees arising out of:
(1) The preparation or approval, maps, drawings, opinions, reports,
surveys, change orders, design or specifications by the orders, designs or
specifications by the indemnity, or the agents or employees of the indemnities,
or (2) the giving of or the failure to give directions or instructions by
indemnify or the agents or employees of the indemnity, or such giving or failure
to give directions or instructions is the primary cause of bodily injury to
person or damage to property.
9.03 The Contractor agrees to and does hereby assume responsibility for the
maintenance and repair of the real and personal property that is (a) owned by
the County or the Contractor; (b) is located at the Facility and; (c) is used by
the Contractor in the operation or maintenance of the Facility.
9.04 Notwithstanding the foregoing or an other term or provision or
condition of this Agreement, as to third parties and third party claims, nothing
in this Agreement is intended to nor shall be interpreted to: (a) waive or
deprive the County or the Conductor of any legal defense; (b) give, grant or
bestow any legal right, defense or benefit upon any third party; or; (c) deprive
the County or the Contractor of the benefits of any legal defense including
sovereign and official immunity, or the benefits of any law limiting damages.
ARTICLE TEN
Insurance
10.01 Contractor shall obtain and maintain in force during the term of this
Agreement beginning not later then the commencement date, at its sole cost, risk
and expense and without charge or reimbursement by the County, the greater of,
(i) the amounts shown on Exhibit 1 or (ii) the State requirement under the Tort
Claim Act. Save and except as hereafter modified by the parties in writing, such
insurance shall be in addition to the coverage maintained or required to be
maintained by the County and shall insure against all claims whatsoever against
Contractor or County, or their officers, employees, agents and representatives
in connection with the detention, care, security, housing and training of
Inmates of the Facility, including but not limited to claims based on violations
or alleged violations of civil right's arising from services performed by
(contractor or its employees, agents, subcontractors or assigns pursuant to this
Agreement.
10.02 During the term of the Agreement or any extended Term hereof, the
Contractor shall at its sole cost and expense obtain, keep and maintain in full
force and effect, an insurance policy or policies providing worker's
compensation Insurance (or its approved and authorized equivalent) in amounts
not less than the amounts required by State law.
10.03 Prior to the commencement date the Contractor shall assure County
that the insurance required pursuant to this section 10.03 and Exhibit 1 is in
full effect. The Contractor shall secure such insurance, or additional
insurance, through companies licensed to do business in the State of New Mexico,
and thereafter secure and maintain insurance coverages in effect as follows;
A. A policy or policies of insurance insuring the Facility Buildings,
premises furniture, fixtures and equipment against all casualty and hazard
risks, and other risks of direct physical loss.
B. A policy insuring against claims and liability for personal injuries,
death or property damages that arise or are in any manner occasioned by premise
defects or acts or negligence of the Contractor or others in the custody,
operation or use of the Facility.
C. All Contractor's vehicles (including those owned, leased, or hired),
regardless of the purpose, shall be covered by automobile liability insurance in
the amounts shown on Exhibit 1.
D. All other Policies of insurance required by the County regarding the
Facility.
10.04 Save and except as specifically provided in this Article Ten, each
and every insurance policy required by this Article Ten shall name the County as
an additional insured and shall provide
that such policy may not be canceled or modified except upon at least
thirty calendar days notice in writing to both the Contractor and the County.
10.05 Contractor shall provide to the County insurance certificates as
proof of the insurance policies obtained, and if, through no fault of the
Contractor, such insurance policies are canceled or endorsed in such a way as to
limit such insurance coverage, Contractor shall provide the County written
notice thereof immediately, and Contractor shall obtain, as soon as possible and
at its own cost, replacement insurance. Should the Contractor not obtain
sufficient insurance in a reasonable time, the County may obtain a policy to
fulfill the obligation of the Contractor and shall adjust payments to the
Contractor to cover the premium cost of such insurance purchased by the County.
10.06 The County shall be responsible for providing workers compensation
coverage and liability insurance for its officers, agents and employees, and
insurance for County property, with exception of that properly provided by the
developer, used or stored at the Facility. Personal property of County employees
or Contractor's employees stored or used at the Facility, the responsibility of
the owners and not of the County, the Contractor nor their respective insurers.
10.07 Should any required policy lapse from non-payment, the County may
provide the policy at the Contractor's expense.
ARTICLE ELEVEN
Monitoring by the County
11.01 The County shall regularly monitor the operation of the Facility,
and, to this end, the County's designated representative may conduct a thorough
on-site inspection of the liability at least once during each month throughout
the term of this Agreement. Such monitoring by County shall not relieve the
Contractor of any duties, standards of care or responsibility. The County shall
be given full access to conduct, and will conduct, any other inspection required
by law.
ARTICLE TWELVE
Additional Provisions
12.01 Notwithstanding Contractor's obligation to perform, or cause to be
performed, all duties and services set forth in this Agreement in consideration
of the compensation to be paid hereunder to Contractor, the County and
Contractor recognize and agree that operation changes, and additional Services
desired by jurisdictions contracting for placement of inmates, may, at some
future time, require that Contractor provide service not included in the terms
of this Agreement In such event, the County and the Contractor shall negotiate
and execute written terms, conditions and amendments hereto or supplementary
agreements prior to any such services being provided or compensation earned.
12.02 In the event of the occurrence of any damage to or loss of the
Facility that materially affects the continued operation of the Facility the
Contractor shall immediately notify the County of such loss or damage. If
insurance proceeds are available, the Contractor shall immediately proceed to
obtain repair and reconstruction of the Facility in consultation with the County
only as to the plans and quality of repair. The County has no obligation to
appropriate funds for this purpose, except insurance proceeds revolved therefor.
If the County decides that the damage is too extensive to repair or reconstruct
and decides not to rebuild the Facility, this Agreement shall terminate
immediately upon such determination.
12.03 The Contractor shall not sell, assign, transfer, convey or encumber,
in whole or in part, their Contract or any right, interest, duty or obligation
of performance herein or hereunder or suffer or permit any such assignment,
transfer or encumbrance to occur by operation of law.
12.04 All subcontractors for counseling, education and employee services at
the Facility are subject to the approval of an
authorized representative of the County, which approval will not be
unreasonably withheld.
ARTICLE THIRTEEN
Default and Termination
13.01 Each of the following shall constitute an Event of Default by the
Contractor:
A. A material failure to keep, observe, perform, meet or comply with any
covenant, Agreement, term or provision of this Agreement which is the duty of
the Contractor hereunder, which failure continues for a period of 90 days after
the Contractor has been provided written notice thereof.
B. A material failure to meet or comply with any Court Order; the
standards, rules and regulations of the County or any federal or State
requirement or law; which failure continues for a period of 90 days after
written notice thereof of the Contractor.'
C. The discovery by the County that any material statement, representation,
or warranty herein or made is support of the award of this Agreement to the
Contractor is false, misleading or erroneous in a material respect.
D. Failure of the Contractor to timely pay trade creditors, utility
suppliers payroll and other operational expenses; timely payments shall be
within ninety days of billing.
E. Failure of the Contractor to comply with the terms of the Operations and
Management Agreement.
13.02 Upon the occurrence of an Event of Default and if the Contractor
believes that it cannot be corrected within the 90 days allowed to cure period,
and if the Contractor, through a diligent, on-going, and conscientious effort to
correct the default believes that the cure will take longer than 90 days, the
Contractor may submit a plan for a cure to the County. Upon receipt of the plan
and review by the County, the County may at its discretion approve or disapprove
of the plan. If the County approves of the plan, the County agrees that it will
not exercise its remedies hereunder so long as the Contractor takes diligent,
on-going conscientious action to cure the default. If the County disapproves of
the Contractor s plan, the County will identify corrective actions necessary to
be taken and give a specific time frame for correction.
13.03 In the event of a bankruptcy, reorganization, debt arrangement,
moratorium, proceeding under any bankruptcy or insolvency law, or dissolution or
liquidation proceeding is instituted by or against the Contractor, this
Agreement shall be reviewed immediately by the County and determination made as
to continue the contractual agreement or modify the agreement to
ensure that the County is not liable for contractor s debt.
13.04 The Contractor may terminate this Agreement at its sole discretion in
the event that sufficient funds are not provided or appropriated by the County
to pay the amounts due the Contractor for services provided under Article 3 of
this Agreement; if the failure of funding arises from matters beyond the control
of the Contractor and is without fault or negligence of the Contractor
ARTICLE FOURTEEN
Non-Discrimination
14.01 The Contractor shall not discriminate against any employee, inmate or
subcontractor with regard to race, color, handicap, religion, sex, national
origin or age.
14.02 The Contractor agrees to place in conspicuous places, available to
employees and applicants for employment, notices setting forth the provisions of
this non-discrimination clause and that all advertisements for employment shall
state that the Contractor is an Equal Opportunity Employer.
14.03 The contractor shall make every effort to use under utilized
businesses minority and female owned businesses and suppliers in the performance
of this Agreement.
ARTICLE FIFTEEN
Applicable Law and Venue
15.01 This Agreement shall be construed under and in accordance with the
laws of the State of New Mexico, and all obligations created hereunder are
performable in ▇▇▇▇▇▇▇▇ County, New Mexico. Venue shall lie and be in ▇▇▇▇▇▇▇▇
County, New Mexico.
ARTICLE SIXTEEN
Legal Construction
16.01 In case any one or more of the provisions contained in the Agreement
shall, for any reason, be held invalid, illegal or unenforceable, and such is
not a material provision, such validity, illegality or unenforceability shall
not effect any other provision hereof.
ARTICLE SEVENTEEN
Amendments
17.01 This Agreement may be amended only in writing, with such written
instrument approved and executed by both the County and the Contractor.
ARTICLE EIGHTEEN
Compliance With Federal Tax law
18.01 The Contractor acknowledges and agrees that the Facility has been
financed with tax exempt bonds issued by the County under the provisions of the
Internal Revenue Code of 1986, as amended. Therefore, this Agreement is required
to comply with Rev. Proc. 93-19 promulgated by the Internal Revenue Service and
other regulations/guidelines which may hereafter be promulgated by the Internal
Revenue Service for management contracts such as this Agreement. Consequently,
the Contractor and County agree that this Agreement shall be construed in a
manner necessary to satisfy the
terms and conditions of Rev.Proc.93-19 and other future regulations/
guidelines and, if necessary to protect and preserve the tax exempt; status of
bonds issued by the County to finance the Facility, shall be modified to meet
those requirements.
ARTICLE NINETEEN
Election Authority
19.01 By his or her signature below, each signatory individually certifies
that he or she is the properly authorized agent or officer of the applicable
party hereto and has the necessary authority to execute this Agreement on behalf
of such party, and each party hereby certifies to the other that any resolutions
necessary to create such authority have been duly passed and are now in full
force and effect.
ARTICLE TWENTY
Entire Agreement
20.01 This Agreement constitutes the sole and only Operations and
Management Agreement of the Parties hereto and supersedes any prior
understanding or written or oral agreements between the parties respecting the
within subject matter.
This Agreement entered into as of the day and year first written on Page 1
of Agreement.
Board of Commissioners/▇▇▇▇▇▇▇▇ County, New Mexico/Gallup, New
Mexico
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Chairperson
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▇▇▇▇▇▇ ▇▇▇▇▇▇
Commissioner
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Commissioner
ATTEST:
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▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇ County Clerk
Correctional Services Corporation, Sarasota, Florida
By ______________________
▇▇▇ ▇▇▇▇▇▇
Title ECP- Finance
EXHIBIT 1
Minimum Insurance Coverage
TYPE COVERAGE LIMIT
Per Occurrence $5,000,000
Comprehensive General Liability Aggregate $10,000,000
Including Civil Rights
Workers Compensation Statutory Amounts
Automobile Liability $2,000,000