[CIK] 0000914670
[NAME] CORRECTIONAL SERVICES CORPORATION
OPERATIONS AND MANAGEMENT AGREEMENT
for the
XxXxxxxx County, New Mexico Adult Detention Facility
This Operations and Management Agreement for the XxXxxxxx County, New
Mexico Adult Detention Facility (the "Agreement") is made as of the 3rd day
of October, 1996, by and between Correctional Services Corporation, 0000
Xxxx Xxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxxx 00000, (the "Contractor") and
XxXxxxxx County New Mexico, 000 Xxxx Xxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000
(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 XxXxxxxx County, New Mexico, which
Facility, exclusive of courtrooms, county, city and state offices, shall be
known as the XxXxxxxx 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 Xxxxxxxx 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 may, unilaterally and without penalty, terminate the
Contract upon ninety (90) days written notice to Contractor in the event of
non-appropriation of funds.
2.03 Except as set forth in Section 2.02 and 2.04 herein, the County may
unilaterally terminate this Agreement at any time only for reason of
Contractor's 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, without penalty or cause, 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 xxxxxxxx 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 xxxx-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 post a performance bond in the amount of $500,000, and
shall provide the County with a copy of said bond. Immediately upon receipt
of the performance bond, the County shall release to Contractor the
$500,000 currently located in an Operating Account in Gallup, New Mexico.
ARTICLE FOUR
Duties of the Contractor
4.01 The Contractor shall manage and shall operate and provide, 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 xxxxxxxx, 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, ACA standards as identified in
Article Six and the terms of this Agreement. Classes shall be similar to
those set forth in Exhibit 2 attached hereto.
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.
O. 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, ACA standards as identified in Article Six
and the terms of this Agreement. 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 otherwise 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.
B. The Contractor shall be responsible for damages caused by the
intentional acts of its employees, subcontractors, agents or the Inmates.
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 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 standards
established by the American Correctional Association in the STANDARDS FOR
ADULT LOCAL DETENTION FACILITIES third edition as they may be amended from
time to time.
6.02 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, ACA standards as identified
in Article Six and the terms of this Agreement.
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.
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 use its best efforts to
obtain such cooperation from the law enforcement agencies within the County
and State.
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 the* 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 in accordance with the Inspection of Public Records Act (NMSA 1978
Sections 14-2-1 through 14-2-12), or as otherwise permitted by law. To the
extent permitted by law, 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.
P. Disciplinary record.
G. Incident reports.
H. Release of information forms.
I. 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,
and
B. Inmate must be a resident of XxXxxxxx County, New Mexico, or
C. Inmate, with a bond and administrative approval, must be a resident of a
county directly adjoining XxXxxxxx County, or
D. Any other inmate that has been approved by the Classification Committee,
and
E. Inmate must not have an escape offense on record.
ARTICLE NINE
Liability and Indemnity
9.01 The County and the Contractor agree to use their best efforts 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, defined,
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 liability, claims,
damages, losses, or expenses, including attorneys' fees, arising out of
bodily indite to persons or damage to property caused by, or resulting
from, in whole or in part, the negligent act, or omission of, the county or
the agents or employees of the county, or any legal entity for whose
negligence, action or omission any of these may be liable.
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 rights 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.
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 property provided
by the developer, used or stored at the Facility other than the facility
building and its contents, which is the contractor's responsibility to
insure pursuant to Section 10.03.
10.07 Should any required policy lapse from non-payment, the County may
provide the policy at the Contractor's expense.
ARIICLE 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. Any amendment is subject to the
provisions of XXXX 0000, Sections 33-3 - 27.
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 received therefor. If the County, in its sole discretion, 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. The use of
subcontractors will not adversely impact the requirements set forth in
Sections 4.03 or 10.03 hereto.
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 either identify corrective actions
necessary to be taken or terminate the Agreement without penalty.
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 XxXxxxxx County, New Mexico. Venue shall lie and be in
XxXxxxxx 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 and,
for any substantial amendment, with the prior approval of the Attorney
General's Office, Local Government, Division of the Department of Finance
and Administration and the Risk Management Division of the General Services
Department.
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. 97-13 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.97-13 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.
18.02 The Contractor shall have no role or relationship with the County
that, in effect, substantially limits the County's ability to execute its
rights, including termination rights, under this Agreement, based on all
the facts and circumstances.
ARTICLE NINETEEN
Execution 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 IWENTY
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.
20.02 This Agreement will not become valid or enforceable until the date of
the final signature set forth below.
ARTICLE TVVEN1Y-ONE
Miscellaneous
21.01 The Contractor shall make a Report to the County no less frequently
than annually covering any developments relating to the Facility or the
Agreement.
21.02 The County shall have the right upon advance written notice, to
examine the records of the Contractor related to the performance of its
contractual obligations including, without limitation, financial books and
records, maintenance records, employee records and inmate records generated
by the Contractor, its subcontractors or any other parties involved in the
performance of this Agreement.
BOARD OF COUNTY COMMISSIONERS ATTEST:
By: \s\ Chairperson \s\ XxXxxxxx County Clerk
Date: 7/24/97
CORRECTIONAL SERVICES CORPORATION
By: \s\ President
Date: 8/28/97
APPROVED PURSUANT TO XXXX 0000 33-3-27
LOCAL GOVERNMENT DIVISION RISK MANAGEMENT DIVISION
FOR THE DEPARTMENT OF FINANCE OF THE GENERAL SERVICES
& ADMINISTRATION DEPARTMENT
By: \s\ Executive Budget Analyst Sr. By: \s\ Director, Risk Mgmt. Div.
Date: 8/21/97 Date: 8/21/97
ATTORNEY GENERAL OF NEW MEXICO
By: \s\ Assistant Attorney General
Date: 8/21/97
