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HomeMy WebLinkAboutORANGE, COUNTY OF, OC ANIMAL CARE SERVICES (PARTICIPATION AGMT) - 2016F-IM11 PARTICIPATION AGREEMENT This PARTICIPATION AGREEMENT, dated for reference as of May 31, 2016 (the "AGREEMENT "), is by and among the COUNTY OF ORANGE (the "COUNTY "), and the cities of ANAHEIM, BREA, CYPRESS, FOUNTAIN VALLEY, FULLERTON, HUNTINGTON BEACH, LAKE FOREST, ORANGE, PLACENTIA, SAN JUAN CAPISTRANO, SANTA ANA, TUSTIN, VILLA PARK, and YORBA LINDA (each, a "CITY," and collectively, the "CITIES" and, together with the County, the "PARTIES"). RECITALS A. WHEREAS, COUNTY and each CITY are, or concurrent with the execution of this AGREEMENT, will become, parties to an Agreement for Provision of OC Animal Care Services (the "SERVICES AGREEMENTS "), pursuant to which COUNTY provides animal care services ( "SERVICES ") in the jurisdictional boundaries of the signatory cities, and; B. WHEREAS, COUNTY provides the SERVICES to the CITIES, as well as to the unincorporated areas of the COUNTY, through OC Animal Care ( "OCAC "), and; C. WHEREAS, COUNTY owns, and through OCAC operates, an animal care shelter facility at 561 The City Drive South, Orange, California (the `EXISTING SHELTER'), and; D. WHEREAS, the PARTIES agree that, owing to the age and condition of the EXISTING SHELTER, it is now desirable to construct a new facility (the "NEW SHELTER ") in which to provide enhanced shelter and care services which will benefit the citizens of each of the PARTIES, and; E. WHEREAS, the PARTIES acknowledge that the construction of the NEW SHELTER will impact the operational costs of providing SERVICES pursuant to the SERVICES AGREEMENTS, which costs are shared among the parties in proportion to their usage of the SERVICES; and F. WHEREAS, each PARTY agrees that the construction of the NEW SHELTER is a benefit to, and necessary to meet the social needs of, each PARTIES' respective citizens, and, therefore, the PARTIES desire to enter into this AGREEMENT to set forth terms governing the construction of the NEW SHELTER and the allocation among the PARTIES, and the method of payment of, the increased costs of SERVICES resulting from the construction of the NEW SHELTER. NOW, THEREFORE, in consideration of the foregoing recitals of fact, the mutual covenants and conditions contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the PARTIES agree as follows: 1. Design & Construct 1.1. COUNTY Responsibilities: COUNTY shall be responsible for the design; preparation of all studies, analyses and documents necessary to deliver the NEW SHELTER, including any CEQA environmental documentation; obtaining all permits; administration; and construction of the NEW SHELTER. 1.2. Site: Construction of the NEW SHELTER is sited for the 10 acre area of land on the Old Tustin Air Force Base located at the 1500 block of Armstrong Avenue in Tustin, CA and identified on Exhibit A, attached hereto (the "SITE "). 1.3. Design Concept: COUNTY has developed the initial design concept of the NEW SHELTER, attached hereto as Exhibit B. The design of the NEW SHELTER is scalable based on usage needs. COUNTY shall use best efforts to scale the final design of the NEW SHELTER to a size reasonably appropriate for the total requirements of those CITIES that elect to be parties to this AGREEMENT. 1.4. Project Development: COUNTY has or shall retain the services of a licensed design -build contractor ( "CONTRACTOR ") to perform further design and all engineering, planning, preparation of plans and specifications, and complete construction of the NEW SHELTER, including construction management and post - construction activities, pursuant to a written agreement between COUNTY and CONTRACTOR, as the same may be amended from time to time (the "CONSTRUCTION CONTRACT "). 1.5. Design Advisory Board: COUNTY shall establish a Design Advisory Board (the "DESIGN ADVISORY BOARD ") to provide input to COUNTY regarding the design of the NEW SHELTER. COUNTY shall, in good faith, reasonably consider the input of the DESIGN ADVISORY BOARD in making COUNTY'S determinations regarding the design of the NEW SHELTER. Nevertheless, COUNTY is not bound to follow the recommendations of the 2 DESIGN ADVISORY BOARD and the ultimate determination as to the design of the NEW SHELTER rests entirely with COUNTY. The DESIGN ADVISORY BOARD shall consist of at least three staff members from the City Managers Association Animal Care Committee referenced in Paragraph IV of Exhibit A of the SERVICES AGREEMENT. At least two (2) of the staff members shall be chosen collectively by those CITIES whose shelter usage each individually constituted more than eight percent (8 %) of total usage of the EXISTING SHELTER for fiscal year 2014/2015. The third staff member shall be chosen by mutual agreement of the remaining CITIES. 1.6. Use of NEW SHELTER. The completed NEW SHELTER shall be owned by COUNTY and shall be used by COUNTY for the provision of SERVICES for contracting cities and COUNTY unincorporated areas, as needed, pursuant to the terns of current and future SERVICES AGREEMENTS. In the event COUNTY elects to discontinue usage of the NEW SHELTER for animal sheltering purposes prior to December 31, 2066, COUNTY shall offer to those CITIES then currently contracting with COUNTY to receive SERVICES pursuant to a SERVICES AGREEMENTS the opportunity to lease the NEW SHELTER strictly for animal sheltering purposes until such date, at a costs of $1.00 per year plus all rental costs, if any, owed to SOCCCD pursuant to the Ground Lease to be entered into between COUNTY and SOCCCD pursuant to the LETTER OF INTENT defined below (the "GROUND LEASE "). Each and every CITY exercising this option shall be responsible for all operational costs; utility costs; maintenance, alteration, repair and improvement costs; and any other costs of sustaining and operating an animal shelter at the SITE and shall indemnify COUNTY for any costs or liabilities resulting from or relating to the SITE. Upon exercise of the option, the COUNTY and the optioning CITIES shall use best efforts to negotiate mutually agreeable terms for the resulting lease. If the PARTIES cannot agree to mutually agreeable terms within one hundred and eighty (180) days after the exercise of the option, the option will terminate. The option provided for in this subsection is exclusive to those CITIES described above and may only be exercised collectively by those CITIES that elect to exercise the option or, if only one CITY wishes to do so, by that single electing CITY. The option must be exercised, if at all, within one hundred and eighty (180) days after COUNTY notifies CITIES of its decision to discontinue use of the NEW SHELTER for animal sheltering purposes. The option provided herein shall be contingent upon the GROUND LEASE not terminating by its terms prior to COUNTY obtaining fee hold possession of the SITE. In the event COUNTY does not yet have fee hold possession of the SITE as of April 29, 2034, the expiration date of the GROUND LEASE, COUNTY shall, at least six months prior to that date, consult with those CITIES then contracting with COUNTY for SERVICES regarding proposed methods of accessing continued use of the SITE. Upon execution of the GROUND LEASE, COUNTY and CITIES shall consult regarding any assistance CITIES can provide to facilitate and expedite conveyance of the SITE to COUNTY. 1.7. Contingency: All obligations created by this Agreement are contingent upon the full execution of the GROUND LEASE and receipt of possession of the SITE by COUNTY. 2. Construction Costs Allocation 2.1 Total Costs: Total cost of NEW SHELTER construction shall include: a) all design development costs; b) all costs incurred by COUNTY pursuant to the CONSTRUCTION CONTRACT; c) all site preparation costs; d) all costs of fixtures; e) all costs incurred by COUNTY under the Amended and Restated Agreement for the Exchange of Real Property to be entered into between COUNTY and the South Orange Coi my Community College District (the "SOCCCD ") pursuant to the Letter of Intent Regarding the Proposal to Ground Lease SOCCD Exchange Parcel to County of Orange For Development as Animal Care Center /Amendment of County - SOCCCD Land Exchange Agreement, which Letter of Intent is attached hereto as Exhibit C (the "LETTER OF INTENT "), as the same may be amended from time to time, as well as any costs incurred pursuant to the LETTER OF INTENT itself, and f) any and all other costs incurred by COUNTY for any construction or construction related activity on the Site incurred in connection with the NEW SHELTER (the "ACTUAL CONSTRUCTION COSTS "). The maximum amount to be paid hereunder as ACTUAL CONSTRUCTION COSTS is set forth on Exhibit D, attached hereto (the "MAXIMUM CONSTRUCTION COSTS "). Upon completion of the NEW SHELTER, COUNTY shall provide CITIES with a full accounting of the application of all funds spent on ACTUAL CONSTRUCTION COSTS. 2.2 COUNTY's Contribution: COUNTY shall contribute toward the construction of the NEW SHELTER the land upon which the NEW SHELTER shall be constructed and five million dollars ($5,000,000.00) to be applied toward MAXIMUM CONSTRUCTION COSTS. Any COUNTY funds paid by 4 COUNTY toward ACTUAL CONSTRUCTION COSTS on or after the execution of this AGREEMENT shall count toward the $5,000,000 to be contributed by COUNTY and will be applied toward costs of construction as necessary to cover any discrepancy between available CITY payment funds and ACTUAL CONSTRUCTION COSTS as they become due and payable. 2.3 CITIES' Contribution: The remainder of MAXIMUM CONSTRUCTION COSTS beyond the five million dollars ($5,000,000.00) paid by COUNTY ( "CITIES' SHARE OF MAXIMUM CONSTRUCTION COSTS ") will be divided among the CITIES based on the formula set forth in Exhibit D, attached hereto. Each CITY'S respective percentage share of CITIES' SHARE OF MAXIMUM CONSTRUCTION COSTS, as determined by said formula, is also set forth on Exhibit D. On that date which is five (5) years after the full execution of this AGREEMENT, each CITY'S respective percentage share of CITIES' SHARE OF MAXIMUM CONSTRUCTION COSTS shall be recalculated based on the same formula as set forth in Exhibit D but using then current statistical data. If any CITY'S respective percentage share of CITIES' SHARE OF MAXIMUM CONSTRUCTION COSTS is altered by the recalculation by more than five percentage points, then each CITY'S total share of CITIES' SHARE OF MAXIMUM CONSTRUCTION COSTS shall be recalculated so that the originally calculated percentage shall be applied to one half of CITIES' SHARE OF MAXIMUM CONSTRUCTION COSTS and the recalculated percentage shall be applied to the second half of CITIES' SHARE OF MAXIMUM CONSTRUCTION COSTS. All future payments owed by each CITY shall be adjusted based on the results of the recalculation of each such CITY'S total share of CITIES' SHARE OF MAXIMUM CONSTRUCTION COSTS. If said adjustment results in a reduction in the amount owning by any CITY that, as of that time, has already fully paid its share of the MAXIMUM CONSTRUCTION COSTS, such reduction shall be credited as an offset against future charges, if any, under such CITY'S SERVICES AGREEMENT. If said adjustment results in an increase in the amount owning by any CITY that, as of that time, has already fully paid its previously calculated share of the MAXIMUM CONSTRUCTION COSTS, the amount of such increase shall be due and payable pursuant to the same payment schedule as those CITIES that have not elected to prepay their share of MAXIMUM CONSTRUCTION COSTS, subject to the same prepayment option. COUNTY shall, upon request of a CITY, provide the requesting CITY with copies of the data and documents used to calculate each CITY's percentage share of CITIES' SHARE OF MAXIMUM CONSTRUCTION COSTS. 2.4 Payment Schedule: Each CITY shall pay its full share of CITIES' SHARE OF MAXIMUM CONSTRUCTION COSTS, in addition to costs to be paid in accordance with such CITY'S SERVICES AGREEMENT, in consideration of each such CITY'S continuing right to use the NEW SHELTER or the EXISTING SHELTER or any replacement of the NEW SHELTER or the EXISTING SHELTER (together, or any one of them, "SHELTERS ") pursuant to the terms of its SERVICES AGREEMENT. Each CITY'S annual obligation to make the payments required hereunder is contingent on the COUNTY making available to such CITY, for the respective year, the use of SHELTERS pursuant to the terms of such CITY'S SERVICES AGREEMENT. At the election of each individual CITY, payment of the amounts owing hereunder may be made in advance of use or may be made over the ten (10) year term of the SERVICES AGREEMENTS in accordance with the Payment Schedule, attached hereto as Exhibit E (the "PAYMENT SCHEDULE "). For CITIES electing not to pay in advance of the scheduled payment, the annual amount each such CITY shall owe hereunder shall be increased by the formula shown on the PAYMENT SCHEDULE as the "ADDITIONAL FUNDING COST." The higher payment amount to be paid by CITIES not electing to pay in advance represents the cost to the COUNTY of the lost value overtime of the money paid by COUNTY toward ACTUAL CONSTRUCTION COSTS beyond the $5,000,000 provided for above. The amounts indicated on the PAYMENT SCHEDULE further include costs to be incurred by the relevant CITY for each thirty (30) day period that any payment is overdue. Each CITY acknowledges that the construction and availability of SHELTERS for use by each CITY over the term of such CITY'S SERVICES AGREEMENT is a substantial benefit to such CITY. In the event any CITY refuses to receive SERVICES from COUNTY in violation of the terms of such CITY'S SERVICES AGREEMENT despite being offered such SERVICES by COUNTY, or in the case of a default or failure to pay its cost share in accordance with this AGREEMENT, each CITY remains obligated to pay to COUNTY its outstanding payments hereunder as they become due and payable and COUNTY may take any legal action as appropriate to obtain such payment. Further, the PARTIES acknowledge that the payments owing hereunder do not reduce or offset amounts owing pursuant to the SERVICES AGREEMENTS. 3. Participation of New Cities After Commencement of Construction. After full execution of this AGREEMENT, no city will be added to the OCAC SERVICES program for a period of three (3) years from the date first set forth above, to allow for appropriate sizing and establishment of operational protocols for the NEW SHELTER. If a new city elects to participate in the OCAC SERVICES program after the three (3) year period indicated above, and COUNTY elects to provide SERVICES to such city, such city will be required to pay a pro rata portion of the MAXIMUM CONSTRUCTION COSTS based on the fonnula set forth in Exhibit D. Any new participating cities' contributions pursuant to this section will be applied first toward any necessary expansion of the NEW SHELTER and the remainder will be deposited into a shelter maintenance and repair fund (the "SHELTER MAINTENANCE FUND "). COUNTY shall establish a separate project fund account for all funds allocable to the SHELTER MAINTENANCE FUND and shall not commingle any other funds in said account. It is the intention of the PARTIES that any funds contained in the SHELTER MAINTENANCE FUND be exhausted prior to any additional contributions by the PARTIES toward post - construction shelter upgrades or capital improvements. Prior to contracting to provide SERVICES to a new city, COUNTY shall consult with those CITIES then currently contracting with COUNTY to receive SERVICES pursuant to a SERVICES AGREEMENT. COUNTY shall in good faith consider the input of those cities in making COUNTY'S determination as to whether to provide SERVICES to the proposed new city. Nevertheless, COUNTY is not bound to follow the recommendations of those cities and the ultimate determination as to whether to provide SERVICES to the proposed city rests entirely with COUNTY. 4. NEW SHELTER Account; Deposit of Funds. Upon the execution of this AGREEMENT, COUNTY shall establish a separate capital project fund account for all funds of the PARTIES which are to be applied toward ACTUAL CONSTRUCTION COSTS for the NEW SHELTER (the "NEW SHELTER ACCOUNT ") and shall not commingle any other funds in said account. Funds payable by any CITY as an additional cost imposed due to late payment, or that are allocable to COUNTY to reimburse COUNTY for any COUNTY funds spent on ACTUAL CONSTRUCTION COSTS beyond the $5,000,000 provided for above, or that are to reimburse COUNTY for the lost value over time of the money paid by COUNTY toward ACTUAL CONSTRUCTION COSTS beyond the $5,000,000 provided for above, shall not be paid into the NEW SHELTER ACCOUNT but shall be paid directly to COUNTY for COUNTY'S sole use. 5. Allocation of Excess Funds. Upon final completion of the NEW SHELTER, issuance of a certificate of occupancy, payment of all ACTUAL CONSTRUCTION COSTS, and payment of all amounts due pursuant to this AGREEMENT, any unused funds remaining in the NEW SHELTER ACCOUNT, but not exceeding an amount equal to the difference between total ACTUAL CONSTRUCTION COSTS incurred and MAXIMUM CONSTRUCTION COSTS, shall be credited to those CITIES then obtaining SERVICES from COUNTY against future charges tinder each such CITY'S SERVICES AGREEMENT based on the same percentages that each such CITY paid of the CITIES' SHARE OF MAXIMUM CONSTRUCTION COSTS. Any funds not distributed in accordance with the previous sentence shall be deposited into the SHELTER MAINTENANCE FUND. 6. Operational Commitment. Concurrent with the execution of this AGREEMENT, each CITY shall enter into a new, amended SERVICES AGREEMENT with COUNTY in the form attached hereto as Exhibit F (the "AMENDED SERVICES AGREEMENT "). The operational cost for SERVICES owing pursuant to the AMENDED SERVICES AGREEMENTS, calculated with respect to each CITY and unincorporated COUNTY area, shall include, together with all other annual costs of operation of OCAC, all rental costs, if any, under the Ground Lease to be entered into between COUNTY and SOCCCD pursuant to the LETTER OF INTENT. All PARTIES acknowledge that the division of all operational costs among the PARTIES allows for costs efficiencies and operational savings to each PARTY and that each PARTY has entered into this AGREEMENT and its AMENDED SERVICES AGREEMENT in reliance on such shared costs and resulting savings. Each CITY, to provide assurance of such continued cost efficiencies to each remaining PARTY, hereby expresses its commitment to procure SERVICES from COUNTY for a period of 10 years and acknowledges the financial burden that any breach of this commitment would have on all other PARTIES. To that end the AMENDED SERVICES AGREEMENTS shall each provide for a 10 year tenn of service. 7. Defaults and Remedies. 7.1. Defaults. The failure by any PARTY to perform any of its obligations set forth in this AGREEMENT shall constitute a default of this AGREEMENT. Except as required to protect against further damages, the nondefaulting PARTY may not institute legal proceedings against the PARTY in default until the nondefaulting PARTY has provided the defaulting PARTY notice of the default and the following applicable cure period has expired: (i) the cure period for any monetary default shall be fifteen (15) calendar days after the defaulting PARTY'S receipt of written notice from the nondefaulting PARTY that such obligation was not performed; and (ii) the cure period for any other default shall be thirty (30) days after the defaulting PARTY'S receipt of written notice from the nondefaulting PARTY that such obligation was not performed. 7.2. Remedies Upon Default. Upon the occurrence of any default and after the defaulting PARTY has received written notice of default and the time period to cure the default has expired, the nondefaulting PARTY may at its option pursue damages or specific performance or other legal and equitable remedies the injured PARTY may have against the defaulting PARTY in accordance with applicable law. Should any CITY fail to pay any payment due by that CITY hereunder, COUNTY may take any action as is appropriate to obtain such payment. Nothing herein shall be construed as COUNTY'S exclusive remedy for the remediation of default by a CITY or CITIES, and COUNTY reserves the right to pursue any and all available rights and remedies at law or in equity. 7.3. Non - refund of Contributions. The payments made by all PARTIES pursuant to this AGREEMENT shall be used for completion and maintenance of the NEW SHELTER in the manner described herein and all PARTIES acknowledge and agree that the completion and maintenance of the NEW SHELTER, as well as the completion of each phase of construction activity and each construction milestone under the CONSTRUCTION CONTRACT, provides an immediate benefit to each PARTY and that no payments made pursuant to this AGREEMENT shall be refunded for any reason other than pursuant to the last sentence of Section 8. La. S. Results of Nonpayment by any CITY. 8.1. Adjustment of Payments Upon Nonpayment: a) All PARTIES acknowledge that the failure of any CITY to pay any amount hereunder will result in an increase in the operational costs of sheltering SERVICES to be divided among all other CITIES. To that end, in the event any CITY fails to pay, for any other reason, any amount to be paid by that CITY under this AGREEMENT, within fifteen (15) days of when such payment is due, the amount of such nonpayment will be apportioned among the remaining CITIES such that the remaining CITIES' will be responsible to pay such unpaid amount. The amounts paid by the remaining CITIES pursuant to this section will be applied in the following order: first to replenish any COUNTY funds spent on ACTUAL CONSTRUCTION COSTS that would have been paid by funds owed by the nonpaying CITY, second to pay any other amounts due to COUNTY by the nonpaying CITY pursuant to this AGREEMENT, and the remainder to pay ACTUAL CONSTRUCTION COSTS as they come due. Should the non - paying CITY pay any portion of the amount owing, the increased cost paid pursuant to this subsection by the remaining CITIES will be reimbursed to the extent of the amount of such repayment. This section shall apply to each payment obligation owed and not paid by any CITY as it becomes due and payable and shall not result in any acceleration of the fall amount payable by the nonpaying CITY over the term of this AGREEMENT. In the event any CITY should default in its obligations under this AGREEMENT and no longer obtain sheltering SERVICES from COUNTY, COUNTY shall consult with all CITIES then obtaining SERVICES from COUNTY to discuss methods of cost reduction that may be made available as a result of such reduction in sheltering SERVICES usage. b) It is the intention of all PARTIES that no funds provided by any PARTY under this AGREEMENT shall be reimbursed for any other reason than that set forth in the last sentence of the foregoing subsection (a). If, pursuant to judicial action or threat thereof, any funds are reimbursed under this AGREEMENT to any CITY, other than pursuant to the last sentence of the foregoing subsection (a), the remaining CITIES' will be responsible to pay to the COUNTY the reimbursed amount. c) Each CITY's proportional share of any amounts required to be paid by CITIES pursuant to this section shall be determined based on the formula set forth on Exhibit D. Each CITY'S resulting incremental increase in contribution will be due within thirty (30) days of notification by the COUNTY to the participating CITIES of the increased amount owing. The obligation of CITIES to pay increased amounts under this Section 8 is not intended to be an exclusive remedy. COUNTY reserves the right to take any action as is appropriate to obtain payment from any non - paying CITY. Additionally, each CITY paying increased costs pursuant to this Section 8, shall have and retain the right to take any action at law or equity as is appropriate to obtain reimbursement of such increased payment amounts from the non - paying CITY. 8.2. Impact of Nonpayment upon SERVICES AGREEMENT. In the event any CITY fails to pay, for any reason, any amount to be paid by that CITY under this AGREEMENT, such failure shall constitute a default under the 10 nonpaying CITY'S SERVICES AGREEMENT and COUNTY shall have the right to immediately terminate such SERVICES AGREEMENT, at its discretion. 9. Status of COUNTY as Independent Contractor. COUNTY is, and shall at all times be deemed to be, an independent contractor. Nothing herein contained shall be construed as creating the relationship of employer and employee, or principal and agent, between any CITY and COUNTY or any of COUNTY's agents or employees. COUNTY shall retain all authority for rendition of services, standards of performance, control of personnel, and other matters incident to the performance of services by COUNTY pursuant to this Agreement. COUNTY, its agents and employees shall not be considered to be CITY employees. 10. 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 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. 11. Term and Termination: This AGREEMENT shall be effective from the date first set forth above until each PARTY has made the last payment required under this AGREEMENT, provided that the rights granted with respect to the option created pursuant to Section 1.6 shall continue in accordance with the terms of Section 1.6. 12. Amendments /Entire Agreement: Amendments to this AGREEMENT must be in writing and approved by the governing body of each PARTY. This AGREEMENT is the entire agreement among the parties with respect to the construction of the NEW SHELTER and it supersedes any prior written or oral agreements with respect to the subject. Any and all exhibits that may be referred to in this AGREEMENT are by such references incorporated in this AGREEMENT and made a part hereof. 13. Severability. If any provision of this AGREEMENT, or the application thereof, to any extent, is held by a court of competent jurisdiction to be invalid, void or unenforceable, such provision, to the extent it is valid and enforceable, and all other remaining provisions hereof shall remain in fall force and effect, to the fiillest extent possible, and shall in no way be affected, impaired or invalidated thereby to the extent such provisions are not 11 rendered impractical to perform taking into consideration the purposes of this AGREEMENT. 14. Attorney's Fees. In any action or proceeding to enforce or interpret any provision of this AGREEMENT, or where any provision hereof is validly asserted as a defense, each PARTY shall bear its own attorney's fees, costs and expenses. 15. Interpretation. This AGREEMENT has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters dealt with in this AGREEMENT. In addition, each PARTY has been represented by experienced and knowledgeable independent legal counsel of its own choosing or has knowingly declined to seek such counsel despite being encouraged and given the opportunity to do so. Each PARTY further acknowledges that is has not been influenced to any extent whatsoever in executing this AGREEMENT by the other PARTIES hereto or by any person representing the other PARTIES, or both. Accordingly, any rule or law (including California Civil Code Section 1654) or legal decision that would require interpretation of any ambiguities in this AGREEMENT against the PARTY that has drafted it is not applicable and is waived. The provisions of this AGREEMENT shall be interpreted in a reasonable manner to affect the purpose of the PARTIES and this AGREEMENT. 16. Consent to Breach Not Waiver. No term or provision of this AGREEMENT shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the PARTY claimed to have waived or consented. Any consent by any PARTY to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach. 17. 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. 18. Hold Harmless. Each CITY shall hold harmless, indemnify, and defend COUNTY, its officers, employees, and agents from and against any and all claims, suits, or actions of every kind brought for or on account of injuries to or death of any person or damage to any property of any kind whatsoever and to whomsoever belonging which arise out of such CITY'S failure to fulfill any payment obligations of such CITY arising pursuant to this AGREEMENT. COUNTY shall hold harmless, indemnify, and defend each CITY, its officers, employees, and agents from and against any and all claims, suits, or actions of every kind brought for or on account of injuries to or death of any person or 12 damage to any property of any kind whatsoever and to whomsoever belonging which arise out of the performance or nonperfonnance of COUNTY's covenants and obligations under this AGREEMENT and which result from the actively negligent or wrongful acts of COUNTY or its officers, employees, or agents. This provision requiring COUNTY to hold harmless, indemnify, and defend each CITY shall expressly not apply to claims, losses, liabilities, or damages arising from actions or omissions, negligent or otherwise, of any independent contractor providing services pursuant to a contract with the COUNTY. In the event of concurrent negligence of the COUNTY, its officers, or employees, and any CITY, its officers and employees, then the liability for any and all claims for injuries or damages to persons and /or property or any other loss or cost which arises out of the terms, conditions, covenants or responsibilities of this AGREEMENT shall be apportioned in any dispute or litigation according to the California theory of comparative negligence. 19. Appropriations. Di ring the term of this AGREEMENT, for each fiscal year, each CITY shall make every effort to adopt all necessary budgets and make all necessary appropriations for all payments due hereunder. The covenant contained in this Section 19 shall be deemed to be, and shall be construed to be, contingent upon the continuing offer by COUNTY to provide SERVICES and use of SHELTERS to each individual CITY. To the extent COUNTY offers the provision of SERVICES and use of any SHELTERS to any CITY, the continued responsibility of such CITY to make all payments required hereunder shall be a dirty imposed by law and it shall be the duty of each and every public official of each CITY to take such actions and do such things as are required by law in performance of the official duty of such officials to enable the CITY to carry out and perform the covenants contained in this Section 19. All PARTIES acknowledge that the constriction, maintenance and availability of SHELTERS for the provision of services to all PARTIES and the division of the costs of constructing and maintaining such SHELTERS among the PARTIES allows for costs efficiencies and significant savings to each PARTY and that each PARTY has entered into this AGREEMENT and its SERVICES AGREEMENT in reliance on such shared costs and resulting savings. Each PARTY, to provide assurance of such cost efficiencies to each remaining PARTY, hereby expresses its commitment to fulfill its stated obligations under this AGREEMENT regardless of the term of the AGREEMENT overlapping more than one fiscal year and acknowledges the financial burden that any breach of the terms of this AGREEMENT will have on all other PARTIES. 20. Assi ng ability. Except as otherwise expressly provided for herein, no PARTY shall assign any of its obligations or rights hereunder without the consent of all other PARTIES. 13 21. Execution in Counterpart. This AGREEMENT may be executed in counterparts, each of which, when the PARTIES hereto have signed this AGREEMENT, shall be deemed to be an original, and such counterparts shall constitute one and the same instrument. 22. Notices. Any notices required to be given pursuant to this AGREEMENT shall be given in writing and shall be mailed to all PARTIES to the AGREEMENT, as follows To CITY: With respect to each CITY, notification shall be provided at the address indicated under each CITY'S signatory block. To COUNTY: County of Orange OC Community Resources Director's Office 1770 North Broadway Santa Ana, CA 92706 -2642 and County of Orange OC Community Resources OC Animal Care Director 561 The City Drive South Orange, CA 92868 14 IN WITNESS WHEREOF, the Board of Supervisors of the COUNTY OF ORANGE has authorized and directed the Director of OC Community Resources to execute this Agreement for and on behalf of the COUNTY, and the CITIES of ANAHEIM, BREA, CYPRESS, FOUNTAIN VALLEY, FULLERTON, HUNTINGTON BEACH, LAKE FOREST, ORANGE, PLACENTIA, SAN JUAN CAPISTRANO, SANTA ANA, TUSTIN, VILLA PARK, and YORBA LINDA have caused this AGREEMENT to be subscribed by each of their duly authorized officers and attested by their Clerks. DATE: Clerk of the Board DATE: City Clerk Address for Notification Purposes: DATE: City Clerk Address for Notification Purposes: 15 CITY OF ANAHEIM I� City Manager City of Anaheim 200 S. Anaheim Blvd. Anaheim, CA 92803 CITY OF BREA City Manager City of Brea 1 Civic Center Circle Brea, CA 92821 DATE: City Clerk Address for Notification Purposes: DATE: City Clerk Address for Notification Purposes: DATE: City Clerk Address for Notification Purposes: DATE: City Clerk Address for Notification Purposes: 16 CITY OF CYPRESS By: City Manager City of Cypress 5275 Orange Avenue Cypress, CA 90630 CITY OF FOUNTAIN VALLEY City Manager City of Fountain Valley 10200 Slater Avenue Fountain Valley, CA 92708 CITY OF FULLERTON City Manager City of Fullerton 303 West Commonwealth Ave. Fullerton, CA 92832 CITY OF HUNTINGTON BEACH By: City Administrator City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 DATE: City Clerk Address for Notification Purposes: DATE: City Clerk Address for Notification Purposes: DATE: City Clerk Address for Notification Purposes: DATE: City Clerk Address for Notification Purposes: 17 CITY OF LAKE FOREST City Manager City of Lake Forest 25550 Commercentre Dr., Suite 100 Lake Forest, CA 92630 CITY OF ORANGE 0 City Manager City of Orange 300 E. Chapman Avenue Orange, CA 92866 CITY OF PLACENTIA IC City Administrator City of Placentia 401 East Chapman Ave. Placentia, CA 92870 CITY OF SAN JUAN CAPISTRANO By: City Manager City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 DATE: City Clerk Address for Notification Purposes: DATE: City Clerk Address for Notification Purposes: DATE: City Clerk Address for Notification Purposes: DATE: City Clerk Address for Notification Purposes: 18 CITY OF SANTA ANA By: City Manager City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92702 CITY OF TUSTIN By: City Manager City of Tustin 300 Centennial Way Tustin, CA 92780 CITY OF VILLA PARK By: City Manager City of Villa Park 17855 Santiago Boulevard Villa Park, CA 92861 CITY OF YORBA LINDA By: City Manager City of Yorba Linda 4845 Casa Loma Avenue Yorba Linda, CA 92885 ATTEST: MARIA D. HUIZAR ' Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO CITY ATTORNEY By:&up a s Laura A. Rossini Senior Assistant City Attorney FOR APPROVAL: CITY OF SANTA ANA DAVID CAVAZOS City Manager O R A N G E C O U N T Y diccommunity Resources Our Community. Our COmmitment, STEVE FRANKS DIRECTOR OC COMMUNITY RESOURCES March 24, 2016 Dear City Manager: JENNIFER HAWKINS, DVM DIRECTOR RE: ORANGE COUNTY ANIMAL CARE SHELTER & SERVICES OC ANIMAL CARE As you are aware, the County of Orange is moving forward on the construction RENEE RAMIREZ of a new Animal Shelter at the former MICAS Tustin Base. This project is being INTERIM DIRECTOR expedited given the condition of our aging Shelter. Considerable progress OC COMMUNITY SERVICES has been made, including: JULIA BIDWELL Terms & conditions have been negotiated for Site Control of the MCAS INTERIM DIRECTOR - g HOUSING COMMUNITY Tustin parcel consistent with the Notice of Intent approved by the DEVELOPMENT & HOMELESS South Orange County Community College District (SOCCCD) and the PREVENno" Board of Supervisors last December. The proposed Lease Agreement and Amended Land Exchange Agreement are scheduled for STACY BLACKWOOD = presentation to the Board of Supervisors for approval on April 12, DIRECTOR 2016. OC PARKS . Conceptual design and CEQA work is completed, and an RFP for a Design /Build contract has also been completed. The recommended HELEN FRIED firm and proposed Design /Build contract are currently scheduled for COUNTY LIBRARIAN i OC PUBLIC LIBRARIES The April 12, 2016 meeting of the Board of Supervisors. ' Over the last several months, County staff and a team from the current contract cities have been negotiating contract terms for a Participation Agreement and the Agreement for Provision of Animal Care Services. It is my understanding that the contract cities have been briefed on our progress by the city negotiating team and the Mayor terms have been shared. In summary, the Participation Agreement involves a $35 million dollar project on the 10 acre parcel at MCAS Tustin. The County is providing the land and the initial $5 million toward the project, with the cities providing a $30 million contribution. The Participation Agreement includes a schedule of the distribution of city costs (assuming a $35 million project in total and participation by all 18 contract cities.) The contract allows for payment of the city payments over a 10 -year period. i I Several cities are exploring alternate service models. Please be advised that there is scalability in the proposed Design /Build contract. We intend to work with the Design team and our contract cities as to address sizing (and related cost reductions) to reflect the service needs for the actual number of cities that opt into contracts. The Agreement for Provision of Animal Care Services involves a 10 -year term, effective from the date of execution. Neither party may terminate without OFFICE OF THE DIRECTOR cause. Further, individualized service levels and fee structures may be 1770 NORTH BROADWAY negotiated b city providing g SANTA ANA, CA 92706- Y y P ovidin that the resulting service level does not conflict 2642 with existing law or endanger public health. PHONE: 714,4BO.2788 FAx: 714.480.2899 At this point in tome, we request a commitment from your city in the form of ORANGE COUNTY ANIMAL CARE SHELTER & SERVICES PAGE 12 MARCH 24, 2016 executing the two agreements. Attached is the final Participation Agreement and the Agreement for Provision of Animal Care Services. These agreements were reviewed by the City Attorney for Anaheim and the City of Garden Grove. A summary of Major Terms for both agreements is attached. Please note that the exhibits for the Participation Agreement includes a site map, initial conceptual design work, a copy of the executed NOI between SOCCCD and the County, the maximum construction costs and participation formula (by city), payment schedule (for the 10 -year city payments), and the Amended Services Agreement. Although we had initially requested city commitments earlier in April, we are now requesting cities execute both agreements by April 30th. There will be no cities added after that for a three year period while design and construction is completed and the initial operational protocols are developed at the new site. Please provide a response by April 11th with the projected date your City Council will take action and your planned recommendation as available. This information is important as these two agreements will be presented to the Board of Supervisors for action on April 12, 2016. I would also like to take this opportunity to share that the County is taking considerable efforts to improve and upgrade the services provided by OC Animal Care. Most recently, the County has secured the services of a Shelter expert to assist in evaluating our current practices, with the expectation that she and her team will make recommendations regarding "best practices" for Shelter operations. We expect that you will be contacted as a part of this effort. The final recommendations will be reviewed with contract cities, animal advocates, rescues, and the general public in the preparation of an action plan. Dr. Jennifer Hawkins, Shelter Director, is available to provide details on this project and respond to any questions you may have regarding the services provided by OC Animal Care. Thank you for your assistance in expediting this matter. Your continued partnership in providing Animal Shelter and Field Services is appreciated. Please give me a call at 714 -480- 2788 with any questions you may have regarding the two agreements. Yours truly, Ste a ks, irector OC Community Resources c: Frank Kim, County Executive Officer Mark Denny, Chief Operating Officer � Z`r l Date Attachments: Summary of Major Terms Participation Agreement Agreement for Provision of Animal Care Services ro a s w L7J r r w i y �Y N y} n m � I I � r e J J y �Y N y} n m � I I $Xpg �9 r V. x c u_ ° C a) IL l 1 e all i $Xpg �9 r V. x c u_ ° C a) IL l 1 Z �9lat 83392 SUN 910io_ ZQ`Co-- AllrTlov3 a*avo ' TvINUW 00 a N O W � m N a 4y � 8 i ova z 5 W W a Rv lL- I m a W z i i i i w z w Q J w m W N 0 a 0 a 9 �In Na^ b , d. ..... ....... 9i�oz,.Qa.�., TVWNV DO NV'IJ Hdd7SGMV'I WME[ II NI 13SVHd i-------------------------- W8Foo mW Zryjg ,VCO k���fLi 4 AAAAAAAAAAA one AAAAone III I ;. 1D ape ®nuaoonnonn© ©u ©n© ® ® ® ® ®® DADA© i v ® ©oaoao n�ic�E� i-------------------------- W8Foo mW Zryjg ,VCO k���fLi 4 Mr. Scott Mayer County of Orange 333 W. Santa Ana Blvd. Santa Ana, CA 92702-1379 Exhibit C h C l:..l l6e - IF\ .4F. V4Llil C(r e I a,F .• Fit t11, <Fu T( r:n December 15, 2015 Re: PROPOSAL TO GROUND LEASE SOCCCD EXCHANGE PARCEL TO COUNTY OF ORANGE FOR DEVELOPMENT AS ANIMAL CARE CENTER /AMENDMENT OF COUNTY- SOCCCD LAND EXCHANGE AGREEMENT Dear Mr. Mayer: This letter of intent sets forth the material terms and conditions under which South Orange County Community College District ( "SOCCCD ") would ground lease Band in Tustin Legacy to the County of Orange ( "County") in advance of the planned land exchange as contemplated in the Exchange Agreement (as defined below) for the purpose of constructing an animal care center. Each of SOCCCD and County is sometimes hereinafter called a "Party" and they are sometimes hereinafter collectively called "Parties:," Capitalized terms not defined herein shall have the meanings ascribed to them in the Exchange Agreement. Background. (a) Exchange Agreement. The Parties entered into that certain Agreement for the Exchange of Real Property dated as of February 7, 2012 (the "Original Exchange Agreement "), which sets forth the terms and conditions under which SOCCCD would convey to County a parcel of real property known as the " SOCCCD Exchange Parcel" in exchange for which County would cause the conveyance to SOCCCD of a parcel of real property known as the "County Exchange Parcel." The Original Exchange Agreement as amended by Amendment No. I, Amendment No, 2, Amendment No.3 and Amendment No. 4 is referred to herein as the "Exchange Agreement." A condition precedent to the consummation of the exchange contemplated by the Exchange Agreement (the "Exchange ") is that the Navy shall have conveyed fee title to the County Exchange Parcel to the City of Tustin ("''City") pursuant to the MCAS Tustin Reuse Plan. The Navy will not make such conveyance until certain issues related to remediation of hazardous substances on the County Exchange Parcel, a portion of the SOCCCD Exchange Parcel and certain nearby parcels are resolved. Upon the satisfactory resolution of such issues, the Navy will issue a document known as "FOST 9," which will, among other things, permit the Navy to convey the County Exchange Parcel to the City. It appears that the issuance of FOST 9 may take several more years. The County's existing animal care facilities are severely impacted and County desires to develop the SOCCCD Exchange Parcel with an Animal Care Center ( "Center ") as soon as practicable. The Parties desire to amend the Exchange Agreement so as to permit County to commence construction of the Center no later than June 2016. Page 1 of 11 Exhibit D Maximum Construction Costs and Participation Formula Maximum Construction Costs $35,000,000 $5,000,000 County Contribution $30,000,000 Contract Cities Funding Share *Costs included are identified in Section 2.1 of the Participation Agreement. Participation Formula The total projected cost to the Contract Cities is based on $30.0 million as the total contract city contribitution. The distribution among the Contract Cities is an estimate assuming participation by all 18 cities currently contracting with the County for OC Animal Shelter services. Estimates do not include Additional Funding Costs associated with a 10 -year Payment Schedule. Estimated costs for each city are based on a historical five -year average of Animal Charge Days, expressed as a percentage of the total. Animal Charge Days represents the number of days animals receive board and care at OCAC. Calculation of pro rata portion of Maximum Construction Costs for new cities added after initial contract execution and three year period as set forth in Section 3. of the Participation Agreement will be based upon comparability to similar sized cities under contract with the County based upon o five year average annual Shelter Utilization figure using actual admissions and shelter days for the new city with their current /previous Shelter provider. In the absence of available shelter data for a new city, the pro rata portion will be based upon comparability to similar sized cities under contract with the County based upon city population as identified in the most recent California State Deportment of Finance publications. Ilerton rden Grove ntington Beach >una Hills ke Forest ange icentia ncho Santa Margarita n Juan Capistrano nta Ana 3nton stin la Park rba Linda Total Page 1 of 1 Distribution of Cities' Share of Maximum Construction Costs $ 7,017,529 23.39% $ 367,454 1.22% $ 568,874 1.90% $ 777,973 2.59% $ 2,240,317 7.47% $ 4,142,755 13.81% $ 1,829,954 6.10% $ 222,122 0.74% $ 555,539 1.85% $ 2,467,472 8.22% $ 548,846 1.83% $ 209,618 0.70% $ 270,168 0.90% $ 6,867,112 22.89% $ 612,821 2.04% $ 791,152 2.64% $ 46,853 0.16% $ 463,442 1.54% $ 30,000,000 100.00% Page 1 of 1 EXHIBIT E Cities Share of Max Construction Costs 30,000,000.00 Additional fwnding Cost Rate 0.77 °10 Number of Payments 40 Payments $779;ki66.81 _ Quarterly Payment Schedule w�Cumulative - --"—� ##Payments I Period ] Beginning Balance Payment Cities Share of MCC Additional Fundingcost citiesShareot ,MCC _ v Cumulative Additional Funding Cost Ending Balance S Year Average" { %) _ 1110/1/20161 30,000,00000 1 $779,966.81 722,216.81 57,750.00 29,277,783.19 21 1/1/20171 29,277,78319 779,966.81 723,607.08 _ _ 56,35933 723,607.08 56,35173 28,554,176.11 31 4/1/20171 28,554,176.11 779,966.81 725,000.02 54,966,79 1,448,607.10 111,326.52 27,829,176.09 4 7/1/2017 27,829,17609 779,966.81 726,395.65 53,571,16 2,175,002.75 164,897.68 27,102,780.44 5 10/112017 27,102,780.44 779,966.81 727,79396 52,172.85 2,902,796.71 217,070.53 26,374,986.48 6 1/1/2018 26,374,986,48 779,966.81 729,194.96 50,771.85 3,631,991.67 267,842.38 25,645,791.52 7 4/1/2018 25,645,791.52 779,966.81 730,598.66 49,368.15 4,362,590,33 317,210.53 24,915,192.86 8 711/20181 24,915,192.86 779,966.81 732,005.06 47,96175 5,094,595.39 365,172.28 2$183,187.80 9 10/1/20181 24,183,187.80 779,966.81 1 733,414.17 46,552.64 5,828,009.56 411,724.92 23,449,773.63 10 1/1/2019 23,449,77163 779,966.81 734,826.00 45,140.81 6,562,835.56 456,865.73 22,714,947.63 1I 4/1/2019 22,714,947.63 779,966.81 736,240.54 43,726.27 7,299,076,10 500,592.00 21,978,70709 12 7/1/2019 21,978,707.09 779,966.81 737,657.80 42,309.01 8,036,733.90 542,901.01 21,241,049.29 131 10/1/2019 21,241,049.29 779,966.81 739,077.79 40,88902 8,775,811.69 583,790.03 20,501,971.50 14 1/1/2020 20,501,971.50 779,966.81 740,500.51 39,466.30 9,516,312.20 623,256.33 19,761,470.99 15 4/1/2020 19,761,470.99 779,966.81 741,92598 38,040.83 10,258,238.18 661,297.16 19,019,54501 16 7/1/2020 19,019,545.01 779,966.81 743,354.19 36,612.62 11,001,592.37 697,909.78 18,276,190.82 17 10/1/2020 18,276,190.82 779,966.81 744,785.14 35,181.67 11,746,377.51 733,091.45 17,531,405.68 18 1/1/2021 17,531,405.68 779,966.81 746,218.85 33,747.96 12,492,596,36 766,839.41 16,785,186.83 19 4/1/2021 16,785,186.83 779,966.81 747,655.33 32,311A8 13,240,251.69 799,150.89 16,037,531.50 20 7/1/2021 16,037,531.50 779,966.81 749,09436 30,872.25 13,989,346.25 830,023.14 15,288,436.94 2! 10/1/2021 15,288,436.94 779,966.81 750,536.57 29,430.24 14,739,88232 859,45338 14,537,900.37 22 1/1/2022 14,537,900.37 779,966.81 751,981.35 27,985A6 15,491,864.17 887,438.84 13,785,919.02 23 4/1/2022 13,785,919.02 779,966.81 753,428.92 26,537.89 16,245,293.09 913,976.73 13,032,490.10 24 7/1/2022 13,032,490.10 779,966.81 754,879.27 25,087.54 17,000,172.36 939,064.27 12,277,610.83 25 10/1/2022 12,277,610.83 779,966.81 756,332.41 23,634.40 17,756,504.77 962,698.67 11,521,278.42 26 1/1/2023 11,521,278.42 779,966.81 757,788.35 22,178.46 18,514,293.12 984,877.13 10,763,490.07 27 4/1/2023, 779,966.81 759,247.09 20,71932 19,273,540.21 1,005,596.85 10,004,24298 28 7/112023 10,004,242.98 779,966.81 760,708.64 19,258.17 20,034,248.85 1,024,855.02 9,243,534.34 29 10/1/2023 9,243,53434 779,966.81 762,173.01 17,793.80 20,796,421,86 1,042,648.82 8,481,361.33 30 1/1/2024 8,481,361.33 1 779,966.81 763,640.19 16,326.62 21,560,062.05 1,058,975.44 7,717,721.14 31 4/1/2024 7,717,721.14 779,966.81 765,110.20 14,856.61 22,325,172.25 1,073,832.05 6,952,610.94 32 7/1/2024 6,952,610.94 779,966.81 766,583.03 13,383.78 23,091,755.28 1,087,215.83 6,186,027.91 33 10/1/2024 6,186,027.91 779,966.81 768,058.71 11,908.10 23,859,813.99 1,099,123.93 5,417,969.20 34 1/1/2025 5,417,969.20 779,966.81 769,537.22 10,429.59 24,629,351.21 1,109,553.52 4,648,43198 5 4,648,431.98 779,966.81 771,018.58 8,948.23 25,400,369.79 1,118,501.75 3,877,413.40 5 3,877,413.40 779,966.81 772,502.79 7,464.02 26,172,872,58 1,125,965.77 3,104,910.61 5 3,104,910.61 779,966.81 773,989.86 5,976.95 26,946,862.44 1,131,942.72 2,330,920.75 WTOTALJ 26 2,330,920.75 779,966.$1 775,479.79 4,487.02 27,722,342.23 1,136,429.74 1,555,440.96 26 1,555,440.96 779,966.81 776,972.59 2,994.22 28,499,314.82 1,139,423.96 778,468.37 26 778,468.37 779,966.81 778,468.26 1,498,55 29,277,783.08 1,140,922.51 O.il 31,198,672.40 29,999,999.89 1198 672 51 3/17/2016 Exhibit F AGREEMENT FOR PROVISION OF OC ANIMAL CARE SERVICES BETWEEN COUNTY OF ORANGE AND CITY OF oCOMFANYv «START DATE» THROUGH «END_DAT& THIS AGREEMENT entered into this ((START — DAY)) day of (START MONTHn aSTART YEAR>>, which date is enumerated for purposes of reference only, u by and between the COUNTY OF ORANGE, a political subdivision of the State of California (COUNTY) and the CITY OF aCOMPANYw(NIUNI_CORP» (CITY), This Agreement shall be administered by County of Orange OC Community Resources (ADMINISTRPTOR). WITNESSETH: WHEREAS, CITY wishes to contract with COUNTY for the provision of the OC Animal Care Services described herein; and WHEREAS, COUNTY is willing and able to provide such services on the terms and conditions hereinafter set forth: NOW, THEREFORE, IT IS MUTUALLYAGREED AS FOLLOWS: /! (1 // J! CONTEN'T'S La " IAM TitlePage .............................................................................................. ............................... Contents................................................................. ............................... Referenced Contract Provisions., .... ..................................................... I. Alteration of Terms ........................................................ I........................................................ II. Indemnification and Insurance .................................. ............................... III. Notices ........................................ .................... .....:::. .............. :................ IV. Severabil ty... ........................... .......... ........ ............................................................................. V. Status of the Parties ......................... ... ......... ..................................................... VI. Tenn ......................................................................... ............................... VII. Termination— .................. ...... .......................... VIII. Third Party Beneficiary ........... ....:.......................... ... ..............::.................................... IX. Waiver of Default orBreach ... .....::....:.............................. : ................................. ........:........... SignaturePage ............................ ............................................................................ .............. I. EXIUBIT A Definitions ............ : ................ „..::..................... ........................................ ,.......,......,,,.......,.,.. II. Services to be Provided by County .................. .......... :..:...., .................. ,.. ...... ....,....,.,............. III. Payments .........:............:.. r:........::..,.:.:.,.......,.........:..::............,............,... .....................,,,....... IV. City Managers Association Animal Care Committee...:;.,...,..... ................ ............................... V Laws and Regulations ....... ......: i. r.:..................................... .............. ........... ...,........................ VI. Reports- ............ .................... ........................ VII. Records .:..:........................:....:..........:...........,....,................................... ............................... 1 2 3 3 4 5 5 5 6 6 6 7 7 1 1 4 5 5 6 7 EXPIIBIT B Animal Care Notice of Intent ...... :................................................. ..............................I Page n n n u it u «COLWANY , 2 of 7 REFERENCED CONTRACT PROVISION Term: aSTART DATE» through aEND_DAM) Notices to COUNTY and CITY: COUNTY: County of Orange OC Community Resources Director's Office 1770 North Broadway Santa Ana, CA 92706 -2642 and County of Orange OC Community Resources OC Animal Care Director 561 The City Drive South Orange, CA92868 CITY: «CONTACT» ((JOB, TITLE)> City o£aCOMPANY2» (ADDRESS I» «CITY STATE ZIP)) i/ it U. LTERATION OFTE TERMS (COMP.nNYN 3 of 7 !�1TSti: =.Ti This Agreement, together with Exhibit A and B, attached hereto and incorporated herein by reference, fully expresses all understanding of COUNTY and CITY with respect to the subject matter of this Agreement, and shall constitute the total Agreement between the parties for these purposes. No addition to, or alteration of, the terms of this Agreement, whether written or verbal, shall be valid unless made in writing and formally approved and executed by both COUNTY and CITY. This Agreement supersedes any and all previous agreements between the parties relating to the subject matter hereof. IR INDEMNIFICATION AND INSURANCE A. CITY agrees to indemnify, defend 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 INDENLNITEES ") harmless from any claims, demands, including defense costs, or liability of any kind or nature, including but not limited to personal injury or property damage, arising from or related to the services, products or other 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 INDEMNTTEES, CITY and COUNTY agree that liability will be apportioned as determined by the court. Neither party shall request a jury apportionment. B. COUNTY agrees to indemnify, defend and hold CITY, its elected and appointed officers, employees, agents, directors, members, shareholders and/or affiliates harmless from any claims, demands, including defense costs, or liability of any kind or nature, including but not limited to, personal injury or property damage, arising from or related to the services, products or other performance provided by COUNTY pursuant to this Agreement. If judgment is entered against COUNTY and CITY by a court of competent Jurisdiction because of the concurrent active negligence of CITY, COUNTY and CITY agree that liability' will be apportioned, as determined by the _court:, Neither party shall request a jury apportionment.' C. Each party agrees to provide the indemnifying party with written notification of any claim related to services provided by bither party pursuant to this Agreement within thirty (30) calendar days of notice thereof, and in the event the indemnifying party is subsequently named party to the litigation, each party shall cooperate with the indemnifying party in its defense. D. Without limiting CITY's indemnifcatibn, CITY warrants that it is self - insured or shall maintain in force at all times during the term of this: Agreement, the policy or policies of insurance covering its operations, placed with reputable insurance companies. Upon request by ADMINISTRATOR, CITY shall provide evidence of such insurance. E, Without limiting COUNTY's indemnification, COUNTY warrants that it is self - insured or shall maintain in force at all times during the term of this Agreement, the policy or policies of insurance covering its operations, placed with reputable insurance corpanies. Upon request by CITY, COUNTY shall provide evidence of such insurance. acohmaNYN 4 of 7 IV. NOTICES A. Unless otherwise specified, all notices, claims, correspondence, reports and /or statements authorized or required by this Agreement shall be effective: 1. When written and deposited in the United States mail, first class postage prepaid and addressed as specified on Page 3 of this Agreement or otherwise directed by ADMINISTRATOR or CITY; 2, When FAXed, transmission confirmed; 3. When sent by electronic mail; or 4. When accepted by U.S. Postal Service Express Mail, Federal Express, United Parcel Service, or other expedited delivery service, B. Termination Notices shall be addressed as specified on Page 3 of this Agreement or as otherwise directed by ADMINISTRATOR or CITY and shall be effective when FAXed, transmission confirmed, or when accepted by U.S. Postal Service Express Mail, Federal Express, United Parcel Service, or other expedited delivery service. C. Each party shalt notify the other party, in writing, within twenty -four (24) hours of becoming aware of any occurrence of a serious nature, which may expose either party to liability. Such occurrences shall include, but not be limited to, accidents,. injuries, or acts of negligence, or loss or damage to any COUNTY property in possession of CITY. D. For purposes of this Agreement, any notice to be provided by COUNTY may be given by ADMINISTRATOR. SE VEIZAIIILITY If a court of competent jurisdiction declares any provision of this Agreement or application thereof to any person or ciarwnstauces to be invalid or if any provision of this Agreement contravenes any federal, state, or county` statute, ordinance, or regulation, the reriraining.provisions of this Agreement or the application thereof shall remain valid, and the remaining provisions of this Agreement shall remain in full force and effect, and to that extent the provisions of this Agreement are severable, VI. STATUS OF THE Pte{ IES Each party is, and shall at all times be deemed to be, an independent contractor and shall be wholly responsible for the manner in which it performs the services required of it by the terms of this Agreement. Each party is entirely responsible for compensating staff and consultants employed by that party, This Agreement shall not be construed as creating the relationship of employer and employee, or principal and agent, between COUNTY and CITY or any of either party's employees, agents, consultants, or subcontractors. Each party assumes exclusively the responsibility for the acts of its employees, agents, consultants, or subcontractors as they relate to the services to be provided during the course and scope of their employment. Each party, its agents, employees, or subcontractors, shall not be entitled to any rights acoN "'TM, 5 of 7 or privileges of the other party's employees and shall not be considered in any manner to be employees of the other party. VII. TE A. The term of this Agreement shall commence as specified on Page 3 of this Agreement. B. This Agreement shall be effective for the full ten (10) year term specified on Page 3 of this Agreement, provided no notice of termination has been given by COUNTY in accordance with the Termination paragraph of this Agreement. VIII. TERMINATION A. COUNTY may terminate this Agreement immediately upon default by CITY of its obligations hereunder or under that Participation Agreement' entered into, in the year 2016, between CITY, COUNTY, and all other cities then contracting for Animal Care Services with COUNTY, for the purpose of allocating the increased costs of Animal Care Services resulting from the construction of a new animal shelter. B. Upon termination, both parties shall be obligated to perform such duties as would normally extend beyond this term, including but not limited..to, obligations with respect to confidentiality, indemnification, audits, reporting and accounting. C. Any obligation of COUNTY under this Agreement is contingent upon the inclusion of sufficient funding for the services hereunder in the applicable budgets approved by the Board of Supervisors. In the event such funding is subsequently reduced or terminated, COUNTY may terminate this Agreement upon thirty (30) calendar days written notice ,given to CITY. Any obligation of CITY under this Agreement' is contingent on COUNTY making available to 'CITY the continued use of Animal Care Services pursuant to the terms hereof. CITY acknowledges that other local cities have or will enter into similar agreements with the COUNTY to provide Animal CareSorvices for a period of ten (10) years, that the sharing of costs among the COUNTY and all contracting cities allows for costs efficiencies and operational savings to COUNTY and each contracting•eity, and that COUNTY and each contracting city have entered into their Services Agreements in reliance on' such shared costs and resulting savings. CITY further acknowledges that the refusal of .CITY to fulfill its obligations under this Agreement would increase the financial burden of services on'COiNTY and all remaining contracting cities. CITY therefore agrees that it will fulfill its obligations hereunder and acknowledges that COUNTY and the other cities acquiring Animal Care Services from COUNTY are relying on CITY'S stated agreement, and the sharing of costs with CITY, in electing to acquire similar services. M TIIIIiD PARTY BENENCIARY Except to the extent provided for in Section VII above with respect to other contracting cities, neither party hereto intends that this Agreement shall create rights hereunder in third parties including, aCONWANYU 6 ofd but not [united to, any subcontractors or any clients provided services hereunder. X. WAIVER OF DEFAULT ORB EACEI Waiver of any default shall not be considered a waiver of any subsequent default. Waiver of any breach of any provision of this Agreement shall not be considered a waiver of any subsequent breach. Waiver of any default or any breach shall not be considered a modification of the terms of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement, in the County of Orange, State of California. CITY OF oCOTMPANY» tuVIUNI CORD» Mw <T'MLEI» ATTEST: DATED: BY: DATED:. CITY CLERIC LEw TITLE: DATED: kC'GM ANY2,, 7 of 7 APPROVED AS TO FORM: OFFICE OF THE COUNTY COUNSEL ORANGE COUNTY, CALIFORNIA M. DEPUTY XOMPAM, 8 of 7 2SC -4% DATED: