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HomeMy WebLinkAboutORANGE, COUNTY OF (14) - 2009INSURANCE NOT REQIIfRED p~/ A-2009-029 '' ~~ WORK MA`I NROCEED ~~ ° ` CLERK OF COUNCIL DATE. ~R O 6 AGREEMENT ~- ~ BETWEEN COUNTY OF ORANGE AND CITY OF SANTA ANA FOR CONSTRUCTION OF A TENNIS COURT AT CABRILLO PARK This Agreement, hereinafter "Agreement," to fund construction of a tennis court at Cabrillo Park in the City of Santa Ana is made and entered by and between the County of Orange, a political subdivision of the State of Califomia, hereinafter "COUNTY," and the City of Santa Ana, hereinafter "CITY," with a place of business located at 20 Civic Center Plaza, Santa Ana, California 92702. COUNTY and CITY may also be referred to herein as "party" or collectively as "parties." RECITALS WHEREAS, COUNTY, by Minute Order dated December 16, 2008, a copy of which is on file with the Clerk of the Board of Supervisors of Orange County and which by this reference is incorporated herein and made a part of hereof as if fully set forth, has determined, pursuant to Government Code Section 26227, to expend a portion of its general funds in the amount of $170,000 [hereinafter "the funds"] for contribution to CITY to be used for construction of a tennis court at Cabrillo Park, hereinafter collectively referred to as "project," to be completed between December 17, 2008 and Apri130, 2010. WHEREAS, said project meets the social needs of the population of Orange County. THEREFORE, in consideration of the mutual promises, covenants, and conditions hereinafter set forth, the parties agree as follows: 1 .{ A-2009-029 AGREEMENT BETWEEN COUNTY OF ORANGE AND CITY OF SANTA ANA FOR CONSTRUCTION OF A TENNIS COURT AT CABRILLO PARK This Agreement, hereinafter "Agreement," to fund construction of a tennis court at Cabrillo Park in the City of Santa Ana is made and entered by and between the County of Orange, a political subdivision of the State of California, hereinafter "COUNTY," and the City of Santa Ana, hereinafter "CITY," with a place of business located at 20 Civic Center Plaza, Santa Ana, California 92702. COUNTY and CITY may also be referred to herein as "party" or collectively as "parties." RECITALS WHEREAS, COUNTY, by Minute Order dated December 16, 2008, a copy of which is on file with the Clerk of the Board of Supervisors of Orange County and which by this reference is incorporated herein and made a part of hereof as if fully set forth, has determined, pursuant to Government Code Section 26227, to expend a portion of its general funds in the amount of $170,000 [hereinafter "the funds"] for contribution to CITY to be used for construction of a tennis court at Cabrillo Park, hereinafter collectively referred to as "project," to be completed between December 17, 2008 and Apri130, 2010. WHEREAS, said project meets the social needs of the population of Orange County. THEREFORE, in consideration of the mutual promises, covenants, and conditions hereinafter set forth, the parties agree as follows: J 1. EFFECTIVE PERIOD -TERMINATION DATE The effective period of this Agreement shall be the period beginning December 17, 2008 and ending April 30, 2010, subject to the provisions of Section 15 of this Agreement. CITY agrees that the funds received under this Agreement shall be disbursed on or before Apri130, 2010, and that any and all funds remaining as of May 1, 2010, which have not been disbursed shall be returned by CITY to COUNTY. No expense of CITY will be reimbursed by COUNTY if incurred after Apri130, 2010. 2. PROJECT PROPOSAL CITY agrees to comply with all provisions set forth in this Agreement for use of the funds in a professional, timely and diligent manner. The parties hereto agree that concerning matters not specifically contained within the body of this Agreement, the COUNTY'S determinations will be final and the COUNTY will control the use of the funds. CITY agrees that the funds will be used for construction of a tennis court at Cabrillo Park in Santa Ana between December 17, 2008 and Apri130, 2010. Notwithstanding Section 1 herein, CITY agrees to use any real or personal property or equipment that is constructed, acquired or improved with the funds for its entire useful life for the purposes, as described herein, for which the funds were granted to CITY by COUNTY. CITY agrees to notify COUNTY promptly if it ceases to use such property or equipment for the purposes described herein at any time before the end of its useful life. CITY agrees to properly maintain, repair and keep in good working order all such property or equipment. CITY warrants that it will obtain and keep in full force and effect, during the term of this agreement and for the useful life of any real or personal property or equipment constructed, acquired or improved with the funds, all permits, licenses or other governmental approvals required for the project and for any services provided in or with property or equipment constructed, acquired or improved with the funds. CITY further agrees that lack of compliance constitutes grounds for COUNTY to pursue the remedies set forth in Section 15 of this Agreement and to reduce the level of payment that otherwise would be provided under Section 6 of the Agreement. Such reduction shall occur only as a result of action of the COUNTY Board of Supervisors. Before such reduction may be made, COUNTY shall provide CITY with at least ten (10) 2 days written notice of the proposed reduction and of the time and place where the Board of Supervisors shall consider the reduction. 3. MODIFICATION OF AGREEMENT TERMS The parties hereto agree that the terms agreed upon in Section 2 may be modified so long as the amount of the total grant is not increased or reduced and the basic goals and objectives of the project are not altered. However, no such modification shall be made without the prior. written approval of the County Executive Officer or his designee. 4. MAXIMUM UTILIZATION AND ACCESS TO RESIDENTS CITY agrees that its level of operation will be adequate to ensure maximum utilization by the public of the property, equipment, programs and/or services funded by this Agreement and that an opportunity to use and enjoy said property, equipment, programs and/or services shall be granted to all residents of the COUNTY on the same conditions under which the residents of the target area may use and enjoy it. 5. EVALUATION CITY agrees and understands that evaluation is an essential condition to this Agreement and that COUNTY will evaluate CITY in accordance with this Agreement. The parties hereto agree that at any time, and for any purpose, the County Executive Officer, or his designee, may call for an Evaluation to be conducted. 6. PAYMENTS BY COUNTY Upon the effective date of this Agreement, COUNTY agrees to make periodic payments to CITY upon receipt of invoice(s) from CITY showing actual amounts expended by CITY for the project, or CITY may invoice County upon receipt of invoice from service provider for approved. project expenses as identified in Section 2. Total payment hereunder shall be limited to $170,000. 7. CONFLICT OF INTEREST AND GRATUITIES CITY agrees and understands that COUNTY'S funds shall not be used. by CITY to pay or reimburse any staff person or consultant who is a member or officer of the City Council or other official governing body of CITY. CITY warrants that no gratuities, in the form of entertainment, gifts or otherwise, were offered or given by CITY or any agent or representative of the CITY with a view toward securing the Agreement or securing favorable treatment with respect to any determinations concerning the performance of the Agreement. 3 8. ACCESS AND RECORDS CITY shall keep true and accurate accounts, records and books in performance of this Agreement in accordance with generally accepted accounting principles. Unless otherwise agreed in writing by the County Executive Officer, or designee, CITY shall maintain separate accounting records for all funds received from COUNTY under this Agreement. All accounting records and evidence pertaining to all costs of CITY shall be kept available at CITY's office or place of business during duration of this Agreement and thereafter for a period not less than five (5) years. CITY shall make all of its records available to COUNTY upon request during regular business hours for the purpose of evaluation or auditing and shall furnish clerical assistance for these purposes to COUNTY as required. CITY agrees to implement all. accounting and/or record-keeping recommendations made by COUNTY for all funds received from COUNTY under this Agreement. In the event CITY does not make its books and financial records available to COUNTY, CITY agrees to pay all necessary and reasonable expenses, including attorney's fees, incurred by COUNTY in obtaining the records and conducting an audit or evaluation. 9. INDEMNIFICATION AND INSURANCE CITY agrees to indemnify, defend with counsel approved in writing by COUNTY, and hold COUNTY, its elected and appointed officials, officers, employees, agents and those special districts and agencies for which COUNTY'S Board of Supervisors acts as the governing Board ("COUNTY INDEMNITEES") harmless from any claims, demands or liability of any kind or nature, including but not limited to personal injury or property damage, arising from or related to the performance provided by CITY pursuant to this Agreement. If judgment is entered against CITY and COUNTY by a court of competent jurisdiction because of the concurrent active negligence of COUNTY or COUNTY INDEMNITEES, CITY and COUNTY agree that liability will be apportioned as determined by the court or jury. CITY certifies that it has insurance coverage or self-insurance that is adequate to cover all risks associated with the project. If it has insurance covering the project, CITY will add COUNTY as an additional insured. 4 10. INDEPENDENT CONTRACTOR CITY shall be considered independent contractors and neither their employees nor subcontractors, agents or anyone else working under or on behalf of CITY or CITY shall be considered an agent or an employee of COUNTY. Further, neither CITY or CITY's employees nor subcontractors, agents or anyone else working under or on behalf of CITY or CITY shall qualify for workers' compensation or other fringe benefits of any kind through COUNTY. 11. ASSIGNMENT OR SUBCONTRACTING The terms, covenants, and conditions contained herein shall apply to and bind the heirs, successors, executors, administrators and assigns of the parties. Furthermore, neither the performance of this Agreement nor any portion thereof may be assigned or sub- contracted by CITY without the express written consent of COUNTY. Any attempt by CITY to assign or sub-contract the performance or any portion thereof of this Agreement without the express written consent of COUNTY shall be invalid and shall constitute a breach of this Agreement. 12. NON-DISCRIMINATION CITY shall not unlawfully discriminate in any way with respect to performance of this Agreement, on the basis of race, religion, gender, sexual orientation, age, national origin, ancestry, medical condition, or physical or mental disability and/or in violation of any applicable state or federal law or regulation, including but not limited to the federal Age Discrimination Act of 1975, Section 504 of the federal Rehabilitation Act of 1973, the Americans with Disabilities Act, the federal Civil Rights Act of 1964, Title VII of the federal Civil Rights Act of 1968, California Government Code section 11135 et seq., and the Unruh Civil Rights Act, as those acts may have been amended. CITY agrees that in the performance of this Agreement it will comply with all applicable requirements of California Labor Code Section 1735, California Government Code Section 12940 et seq., and federal statutes and regulations pertaining to employment discrimination, and will not engage in nor permit any subcontractor to engage in unlawful discrimination in employment of persons. This prohibition shall pertain to employment; upgrading; demotion or transfer; recruitment advertising; layoff or termination; rates of pay and other forms of compensation; selection for training, including apprenticeship; and any 5 other action or inaction pertaining to employment matters. CITY acknowledges that a violation of this provision shall subject CITY to all the penalties imposed for a violation of anti-discrimination law or regulation, including but not limited to, Section 1720 et seq. of the California Labor Code. 13. PROHIBITION AGAINST LOBBYING CITY shall not use any part of the funds received under this Agreement for the purpose of lobbying or for other activities intended to influence any legislation or the outcome of any election. 14. BREACH-SANCTIONS If, through any cause, CITY fails to fulfill in a timely and proper manner any of its obligations under this Agreement, or if CITY violates any of the terms and conditions of this Agreement or any prior Agreement whereby COUNTY funds were received by CITY, or if CITY reports inaccurately, or if an Audit Report makes disallowances, CITY shall promptly remedy its acts or omissions or repay COUNTY all amounts spent in violation thereof. For any such failures or violations, COUNTY shall have the right to: (a) Discontinue project. support until such time as CITY fulfills its obligation under this Agreement or any prior Agreement between COUNTY and CITY; (b) Collect such outstanding amounts as are determined by COUNTY to be due COUNTY from CITY; (c) Terminate this Agreement by giving written notice to CITY of such termination and specifying the effective date thereof. The remedies for breach set forth in this Agreement do not preclude resort by either Party to any other remedies provided by law. 15. SOLE AGREEMENT This Agreement expresses all the understandings of the parties concerning all matters covered. No addition to or alteration of the terms of this Agreement shall be valid unless made in the form of a written Amendment to this Agreement formally approved by the parties hereto. Any addition or alteration of the Agreement may be subject to approval by the COUNTY Board of Supervisors. 6 16. GOVERNING LAW AND VENUE This Agreement has been negotiated and executed in the State of California and shall be governed by and construed under the laws of the State of California. In the event of any legal action to enforce or interpret this Agreement, the sole and exclusive venue shall be a court of competent jurisdiction located in Orange County, California, and the parties hereto agree to and do hereby submit to the jurisdiction of such court, notwithstanding Code of Civil Procedure Section 394. Furthermore, the parties specifically agree to waive any and all rights to request that an action be transferred for trial to another County. 17. NOTICES Where required to be given under this Agreement, notices shall be in writing and deemed given when transmitted or delivered personally. or deposited in the United States mail, postage prepaid, certified, addressed as follows: COUNTY: County Executive Office County of Orange 333 W. Santa Ana Boulevard, aid Floor Santa Ana, CA 92701-4062 Attn: Michelle Aguirre CITY: City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 Santa Ana, CA 92702 Attn: Jim Ross 18. AUTHORITY The Parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitutes the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms. 19. EMPLOYEE ELIGIBILITY VERIFICATION CITY warrants that they fully comply with all Federal and State statutes and regulations regarding the employment of aliens and others and that all its employees performing work under this Agreement meet the citizenship or alien status requirement set forth in Federal statues and regulations. CITY shall obtain, from all employees performing work hereunder, all verification and other documentation of employment eligibility status 7 required by Federal or State statutes and regulations including, but not limited to, the Immigration Reform and Control Act of 1986, 8 U.S.C. §1324 et seq., as they currently exist and as they may be hereafter amended. CITY shall retain all such documentation for all covered employees for the period prescribed by the law. CITY shall indemnify, defend with counsel approved in writing by County, and hold harmless, the County, its agents, officers, and employees from employer sanctions and any other liability which may be assessed against the CITY or the County or both in connection with any alleged violation of any Federal or State statutes or regulations pertaining to the eligibility for employment of any persons performing work under this Agreement. 20. .COMPLIANCE WITH PRIVACY LAWS CITY warrants that in providing services to their clientele and in performance of this Agreement, they will comply with all applicable state and federal confidentiality and privacy laws, including but not limited to the federal Health Insurance Portability and Accountability Act of 1996 and all amendments. 21. AGREEMENT WITH TERMS AND CONDITIONS CITY acknowledges that it has read and agrees to all terms and conditions in this Agreement. // // // // // // // // // // 8 IN WITNESS WHEREOF, the parties hereto have executed this Agreement with their respective signatures. DATE: '~ • ~ ~'. - DATE: L ~,- ~ '' DATE: ~ ~~ D~j DATE: 3 ,- 6 ~I DATE: March 5, 2009 COUNTY OF California BY: TITLE: a subdivision of the State of BOARD OF SUPERVISORS APPROVED AS TO FORM: COUNTY COUNSEL ORANGECOUNTY, CALIFORNIA Deputy CITY OF SANTA ANA TITLE: ~r~n ~{~Cv~-'E"' ~~t,, ~~.Gl.1~GtP.w ATTEST: BY: TITLE: ~Y P~ ~ ~/ ~4/1~l.Gf,Qi APPROVED AS TO FORM: ..._,_~ =T BY: ~~ ose Sandoval TITL~:' Managing Senior Assistant City Attorney SIGNED AND CERTIFIED THAT A COPY OF THIS DOCUMENT HAS BEEN DELIVERED TO THE CHAIRMAN OF THF/1BOARD ,~'~ ~ ~ ; -`~.' Darldn~ J. Bloom - " Clerk of the Board of Supervisors 9 b~ ORANGE COUNTY BOARD OF SUPERVISORS MINUTE ORDER December 16, 2008 Submitting Agencv/Department.• County Executive Office Approve allocation and expenditure of First District Fund 130 funds and agreements with Santa Ana for tennis court at Cabrillo Park ($170,000) and Garden Grove for addition of water features at Atlantis Play Center park ($100,000); approve transfer of $250,000 from Fund 130 to Fund 406 OC Parks for funding of improvements at Roger Stanton Park in Midway City; approve amendment 1 to agreement with Westminster for funding of Westminster Senior Center Project; authorize Clerk of the Board or designee to execute agreements; make related findings; and make related budget adjustments -District 1 The following is action taken by the Board of Supervisors: APPROVED AS RECOMMENDED ® OTHER ^ Unanimous ^ (1) NGUYEN: Y (2) MOORLACH: N (3) CAMPBELL: Y (4) NORBY: Y (5) BATES: Y Vote Key.' Y=Yes; N=No; A=Abstain; X=Excused,• B.O. =Board Order Documents accompanying this matter: ^ Resolution(s) ^ Ordinances(s) (Contract(s) Item No. 52 Special Notes: Copies sent to: CEO District 1-Kathryn Feather CEO/Budget -Michelle Aguirre yl2al ob I certify that the foregoing is a true and correct copy of the Minute Order adopted by the Board of Supervisors, Orange County, State of California. DAIZ~i+IE J. BLOOM, Clerk of the Board `~ By: ~ --~. ,~____ Deputy Modification Memo AM 10: t 1 December 11, 2008 '~R "UGC CUUN1 y dO%RU tiF SUr'(~RVISORS To: Dazlene J. Bloom, Clerk of the Boazd of Supe rs From: Thomas G. Mauls, County Executive officer Subject: Revision to ASR OS-002498 for the December 16, 2008 Board Meeting Agenda Item A~52 -First District Fund 130 Agreement Amendment and Allocation Explanation: Please add the following Recommended Action: 6. Direct the Auditor-Controller to make the following budget adjustments to return $100,000 in unallocated First District library funds to the County General Fund (4/5 vote): a. Decrease Fund 100-Agency 036-Org P931-0bject 4801-Subcode 19 by $100,000 b. Increase Fund 100-Agency 100-Balance Sheet Account 9812 by $100,000 Please revise Recommended Action No. 4 to read: 4. Approve transfer of $250,000 from Fund 130 to Fund 406 OC Parks for funding of improvements at Roger Stanton Pazk in Midway City, and direct the Auditor-Controller to make the following budget adjustments (4/5 vote): a. Decrease Fund 130-Agency 130-Org 100-0bject 1900 by $250,000 b. Increase Fund 130-Agency 130-Org 100-Object4804-Subcode 06 by $250,000 c. Increase Fund 406-Agency 406-Org 0900-Object 7811-Subcode 30 by $250,000 d. Increase Fund 406-Agency 406-Org p912-0bject 4200 by $250,000 cc: Members, Board of Supervisors Ben de Mayo, County Counsel Rob Richardson, County Executive Office Kathryn Feather, l" District, Boazd of Supervisors Michelle Aguirre, County Executive Office s ~~~ o r ~9 °v M ~'9~tFO4~`m MEETING DATE: AGENDA STAFF REPORT LEGAL ENTITY TAKING ACTION: BOARD OF SUPERVISORS DISTRICT(S): SUBMITTING AGENCY/DEPARTMENT: DEPARTMENT CONTACT PERSON(S): 12/16/08 Board of Supervisors Agenda Item ASR Control 08-002498 County Executive Office (Approved) Kathryn Feather, (714) 834-3110 Andrew Do, (714) 834-3110 SUBJECT: First District Fund 130 Agreement Amendment and Allocation I;EV I;ONCUR COUNTY COUNSEL REVIEW CLERK OF THE BOARD Concur Approved Agreement to Form Discussion 3 Votes Board Maori Budgeted: Yes Current Year Cost: $520,000 Staffing Impact: No # of Positions: Current Fiscal Year Revenue: N/A Funding Source: General Fund 100% Prior Board Action: #95-6/24/08; #32-10/30/07 Annual Cost: N/A Sole Source: N/A RECOMMENDED ACTION(S) 1. Find that the proposed allocations from Fund 130 District Community Priorities and Projects serve County public interests. 2. Approve expenditure of $170,000 from Fund 130 for construction of a tennis court at Cabrillo Park in Santa Ana, and direct Clerk of the Board, or designee, to execute the submitted agreement between the County of Orange and the City of Santa Ana. 3. Approve expenditure of $100,000 for addition of water features at the Atlantis Play Center park in Garden Grove, and direct Clerk of the Board, or designee, to execute the submitted agreement between the County of Orange and the City of Garden Grove. 4. Approve transfer of $250,000 from Fund 130 to Fund 406 OC Parks for funding of improvements at Roger Stanton Park in Midway City. 5. Approve Amendment Number One to Agreement to Fund Westminster Senior Center Project, and direct Clerk of the Board, or designee, to execute the submitted amendment between the County of Orange and the City of Westminster. Page 1 ~~ SUMMARY: Approve expenditure of $170,000 from Fund 130 for construction of a tennis court at Cabrillo Park in Santa Ana, and direct Clerk of the Board, or designee, to execute the submitted agreement between the County of Orange and the City of Santa Ana. Approve expenditure of $100,000 for addition of water features at the Atlantis Play Center park in Garden Grove, and direct Clerk of the Boazd, or designee, to execute the submitted agreement between the County of Orange and the City of Garden Grove. Approve transfer of $250,000 from Fund 130 to Fund 406 OC Pazks for funding of improvements at Roger Stanton Pazk in Midway City. Approve Amendment Number One to Agreement to Fund Westminster Senior Center Project, and direct Clerk of the Boazd, or designee, to execute the submitted amendment between the County of Orange and the City of Westminster. BACKGROUND INFORMATION: Per Boazd direction on June 24, 2008, Fund 130 monies may be allocated for the following: • Park capital projects on any County or other pazk • Recreational programs or projects • Public school recreational programs and projects which aze made available to the public • Use of any of the Orange County Public Libraries • Historical society capital projects Allocations aze subject to the majority approval of the Boazd of Supervisors. Allocation of funds for purposes other than capital projects on any County or city park are subject to a dollaz for dollaz match up to a stated limit as set forth by the Supervisor allocating the funds. The dollaz for dollaz match requirement may be waived upon approval of the majority of the Board of Supervisors. First District requests approval of the following allocations: • Allocation of $170,000 to the City of Santa Ana for construction of a tennis court at Cabrillo Pazk. There is no match requirement associated with this allocation. • Allocation of $100,000 to the City of Garden Grove for the addition of water features at the Atlantis Play Center pazk. There is no match requirement associated with this allocation. • Transfer of $250,000 from Fund 130 to Fund 406 OC Pazks for improvements at Roger Stanton Park in Midway City. Park improvements include, but aze not limited to, replacement of landscaping, tree removal and replacement, structural improvements, equipment replacement, and sidewalk repair/replacement. There is no match requirement associated with this allocation. At this time, First District requests approval of Amendment Number One to the Agreement to Fund Westminster Senior Center Project between the County of Orange and the City of Westminster. On October 30, 2007, your honorable Board approved Agenda Item #32 including approval of the Agreement to Fund Westminster Senior Center Project. The agreement included allocation of $40,000 to the City of Westminster for capital improvements (upgrade of restroom facilities to become ADA complaint) at the Westminster Senior Center. The term of the agreement is through December 31, 2008. At this time, First Page 2 f a District requests to extend the term of the agreement through December 31, 2009 to allow for completion of the restroom facilities upgrade and subsequent reimbursement to the City of Westminster. FINANCIAL IMPACT: N/A STAFFING IMPACT: N/A REVIEWING AGENCIES: County Counsel, County Executive Office, First District EXHIBIT(S): Applicable Amendment and Agreements Page 3