HomeMy WebLinkAboutC-8611-1 - Grant Contract (for Phase V Sculpture in the Park Exhibit), Updated VersionDocuSign Envelope ID: 3EC9E6C7-D889-4D2B-9COB-73827F85FA18
State of California - Natural Resources Agency
Department of Parks and Recreation
GRANT CONTRACT
General Fund
Specified Grants
GRANTEE City of Newport Beach
GRANT PERFORMANCE PERIOD is from July 01, 2019 through June 30, 2023
CONTRACT PERFORMANCE PERIOD is from July 01, 2019 through June 30, 2023
The GRANTEE agrees to the terms and conditions of this Contract, and the State of California, acting
through its Director of Parks and Recreation, pursuant to the State of California, agrees to fund the total
State grant amount indicated below. The GRANTEE agrees to complete the GRANT SCOPE(s) as
defined in the GRANT SCOPE /Cost Estimate Form of the application(s) filed with the State of California.
Total State grant amount not to exceed $470,000.00
The General and Special Provisions attached are made a part of and incorporated into the Contract.
City of Newport Beach
GRANTEE
STATE OF CALIFORNIA
DEPARTMENT OF PARKS AND RECREATION
—�' DocuSigned by:
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Date 2"1 OG T U G S YZ z- U Z D Date 12/15/2020
CERTIFICATION OF FUNDING
CONTRACT NO
AMENDMENT NO
FISCAL SUPPLIER I.D.
PROJECT NO.
C5053016
0000011771
AMOUNT ENCUMBERED BY THIS DOCUMENT
FUND.
$470,000.00
General Fund
PRIOR AMOUNT ENCUMBERED FOR THIS
ITEM
CHAPTER
STATUTE
FISCAL YEAR
CONTRACT
3790-101-0001
6
20
2020/21
TOTAL AMOUNT ENCUMBERED TO DATE
Reporting Structured.
Account/Alt Account.
ACTIVITY CODE
PROJECT /WORK PHASE
$ $470,000.00
37900091
5432000-5432000000
60051
#Name?
T.B.A. NO.
I hereby certify upon my personal knowledge that budgeted funds are available for this encumbrance.
B.R.. NO.
ACCOUNTING OFFICER'S SIGNATURE
DATE.
APPROVED AS TO FORM:
CITY ATT-ORNEY'§ OFFICE
Date: Ic;�
Aaron Y. Harp, City Attorney 1otit
DocuSign Envelope ID: 3EC9E6C7-D889-4D2B-9COB-73827F85FA18
RECITALS
This CONTRACT is entered into between the California Department of Parks and
Recreation (hereinafter referred to as "GRANTOR," "DEPARTMENT" or "STATE") and
City of Newport Beach (hereinafter referred to as "GRANTEE").
The DEPARTMENT hereby grants to GRANTEE a sum (also referred to as "GRANT
MONIES") not to exceed $470,000 , subject to the terms and conditions of this
AGREEMENT and the 2020/21 California State Budget, Chapter 6, statutes of 2020,
Item number — 3790-101-0001 (appropriation chapter and budget item number
hereinafter referred to as "SPECIFIED GRANT"). These funds shall be used for
completion of the GRANT SCOPE(S).
The Grant Performance Period is from July 01, 2019 to June 30, 2023
II. GENERAL PROVISIONS
A. Definitions
As used in this CONTRACT, the following words shall have the following meanings:
1. The term "APPLICATION" means the individual project APPLICATION packet for a
project pursuant to the enabling legislation and/or grant program PROCEDURAL
GUIDE requirements.
2. The term "CONTRACT PERFORMANCE PERIOD'` means the duration of time
during which this CONTRACT is in effect.
3. The term "DEPARTMENT" or "STATE" means the California Department of Parks
and Recreation.
4. The term "DEVELOPMENT" means capital improvements to real property by
means of, but not limited to, construction, expansion, and/or renovation, of
permanent or fixed features of the property.
5. The term "GRANTEE" means the party described as the GRANTEE in Section I of
this AGREEMENT.
6. The term "GRANT PERFORMANCE PERIOD" means the period of time during
which eligible costs may be incurred by the GRANTEE and paid for by the
DEPARTMENT, as specified in the fully executed CONTRACT.
7. The term "GRANT PROJECT" means all real estate, leases, subleases, buildings,
and other property acquired or developed with GRANT monies.
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8. The term "GRANT SCOPE" means the items listed in the GRANT SCOPE/Cost
Estimate Form found in each of the APPLICATIONS submitted pursuant to this
grant.
9. The term "PROCEDURAL GUIDE" means the document identified as the
"Procedural Guide for Sculpture Garden Specified Grant." The PROCEDURAL
GUIDE provides the procedures and policies controlling the administration of the
grant.
B. Project Execution
Subject to the availability of GRANT MONIES, the STATE hereby grants to the
GRANTEE a sum of money not to exceed the amount stated in Section I of this
CONTRACT, in consideration of, and on condition that, the sum be expended in
carrying out the purposes as set forth in the scope described in the enabling
legislation and referenced in the APPLICATION, Section I of this CONTRACT, and
under the terms and conditions set forth in this CONTRACT.
The GRANTEE shall assume any obligation to furnish any additional funds that
may be necessary to complete the GRANT SCOPE(S).
During the CONTRACT PERFORMANCE PERIOD, the GRANTEE agrees to
submit any proposed change or alteration from the original GRANT SCOPE(S) in
writing to the STATE for prior approval. This applies to any and all proposed
changes that will occur after STATE has approved the APPLICATION. Changes in
the GRANT SCOPE(S) must first be approved in writing by the STATE.
2. The GRANTEE shall complete the GRANT SCOPE(S) in accordance with the time
of the Performance Period set forth in Section I of this CONTRACT, and under the
terms and conditions of this contract.
3. The GRANTEE shall comply with the California Environmental Quality Act Public
Resources Code, Section 21000, et seq., Title 14, California Code of Regulations,
Section 15000 et seq.).
4. The GRANTEE shall comply with all applicable current laws and regulations
affecting DEVELOPMENT projects, including, but not limited to, legal requirements
for construction contracts, building codes, health and safety codes, and laws and
codes pertaining to individuals with disabilities, including but not limited to the
Americans With Disabilities Act of 1990 (42 U.S.C. §12101 et seq.) and the
California Unruh Act (California Civil Code §51 et seq.)
C. Project Costs
1. GRANTEE agrees to abide by the PROCEDURAL GUIDE.
2. GRANTEE acknowledges that STATE may make reasonable changes to its
procedures as set forth in the PROCEDURAL GUIDE. If STATE makes any
changes to its procedures and guidelines, STATE agrees to notify GRANTEE
within a reasonable time.
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D. Project Administration
If GRANT MONIES are advanced for DEVELOPMENT projects, the advanced
funds shall be placed in an interest bearing account until expended. Interest
earned on the advanced funds shall be used on the project as approved by the
STATE. If grant monies are advanced and not expended, the unused portion of the
grant and any interest earned shall be returned to the STATE within 60 days after
project completion or end of the GRANT PERFORMANCE PERIOD, whichever is
earlier.
2. During the GRANT PERFORMANCE PERIOD, the GRANTEE shall submit written
project status reports within 30 calendar days after the STATE has made a specific
request. All such project status reports shall be signed and certified as complete
and accurate by the authorized representative of the GRANTEE. In any event, the
GRANTEE shall provide the STATE a report showing total final project
expenditures within 60 days of project completion or the end of the GRANT
PERFORMANCE PERIOD, whichever is earlier. The GRANT PERFORMANCE
PERIOD is identified in Section I of this CONTRACT.
3. The GRANTEE shall make property or facilities acquired and/or developed
pursuant to this contract available for inspection upon request by the STATE.
E. Project Termination
1. Project Termination refers to the non -completion of a GRANT SCOPE. Any
grant funds that have not been expended by the GRANTEE shall revert to the
STATE.
2. The GRANTEE may unilaterally rescind this contract at any time prior to the
commencement of the project. The commencement of the project means the date
of the letter notifying GRANTEE of the award or when the funds are appropriated,
whichever is later. After project commencement, this contract may be rescinded,
modified or amended only by mutual CONTRACT in writing between the
GRANTEE and the STATE, unless the provisions of this contract provide that
mutual CONTRACT is not required.
3. Failure by the GRANTEE to comply with the terms of the (a) PROCEDURAL
GUIDE, (b) this CONTRACT or any other grant contracts, specified or general, that
GRANTEE has entered into with STATE or any other department, agency,
commission or other subdivision of California State government, may be cause for
suspension of all obligations of the STATE unless the STATE determines that such
failure was due to no fault of the GRANTEE. In such case, STATE may reimburse
GRANTEE for eligible costs properly incurred in performance of this CONTRACT
despite non-performance of the GRANTEE. To qualify for such reimbursement,
GRANTEE agrees to mitigate its losses to the best of its ability.
4. Any breach of any term, provision, obligation or requirement of this CONTRACT by
the GRANTEE shall be a default of this CONTRACT. In the case of any default by
GRANTEE, STATE shall be entitled to all remedies available under law and equity,
including but not limited to: a) Specific Performance; b) Return of all GRANT
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MONIES; c) Payment to the STATE of the fair market value of the project property
or the actual sales price, whichever is higher; and d) Payment to the STATE of the
costs of enforcement of this CONTRACT, including but not limited to court and
arbitration costs, fees, expenses of litigation, and reasonable attorney fees.
5. The GRANTEE and the STATE agree that if the GRANT SCOPE includes
DEVELOPMENT, final payment may not be made until the work described in the
GRANT SCOPE is complete and the GRANT PROJECT is open to the public.
F. Budget Contingency Clause
If funding for any fiscal year is reduced or deleted by the budget act for purposes of this
program, the STATE shall have the option to either cancel this contract with no liability
occurring to the STATE, or offer a CONTRACT amendment to GRANTEE to reflect the
reduced grant amount. This Paragraph shall not require the mutual CONTRACT as
addressed in Paragraph E, subsection 2, of this CONTRACT
G. Hold Harmless
The GRANTEE shall waive all claims and recourse against the STATE including
the right to contribution for loss or damage to persons or property arising from,
growing out of or in any way connected with or incident to this CONTRACT except
claims arising from the concurrent or sole negligence of the STATE, its officers,
agents, and employees.
2. The GRANTEE shall indemnify, hold harmless and defend the STATE, its officers,
agents and employees against any and all claims, demands, damages, costs,
expenses or liability costs arising out of the ACQUISITION, DEVELOPMENT,
construction, operation or maintenance of the property described as the project
which claims, demands or causes of action arise under California Government
Code Section 895.2 or otherwise except for liability arising out of the concurrent or
sole negligence of the STATE, its officers, agents, or employees.
3. The GRANTEE agrees that in the event the STATE is named as codefendant
under the provisions of California Government Code Section 895 et seq., the
GRANTEE shall notify the STATE of such fact and shall represent the STATE in
the legal action unless the STATE undertakes to represent itself as codefendant in
such legal action in which event the GRANTEE agrees to pay the STATE's
litigation costs, expenses, and reasonable attorney fees.
4. The GRANTEE and the STATE agree that in the event of judgment entered against
the STATE and the GRANTEE because of the concurrent negligence of the STATE
and the GRANTEE, their officers, agents, or employees, an apportionment of
liability to pay such judgment shall be made by a court of competent jurisdiction.
Neither party shall request a jury apportionment.
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5. The GRANTEE shall indemnify, hold harmless and defend the STATE, its officers,
agents and employees against any and all claims, demands, costs, expenses or
liability costs arising out of legal actions pursuant to items to which the GRANTEE
has certified. The GRANTEE acknowledges that it is solely responsible for
compliance with items to which it has certified.
H. Financial Records
1. The GRANTEE shall maintain satisfactory financial accounts, documents, including
loan documents, and all other records for the project and shall make them available
to the STATE for auditing at reasonable times. The GRANTEE also agrees to
retain such financial accounts, documents and records for five years following
project termination or final payment.
2. The GRANTEE shall keep such records as the STATE shall prescribe, including
records which fully disclose (a) the disposition of the proceeds of STATE funding
assistance, (b) the total cost of the project in connection with such assistance that is
given or used, (c) the amount, source and nature of that portion of the project cost
supplied by other sources, and (d) any other such records that will facilitate an
effective audit.
3. The GRANTEE agrees that the STATE shall have the right to inspect and make
copies of any books, records or reports pertaining to this contract or matters related
thereto during regular office hours. The GRANTEE shall maintain and make
available for inspection by the STATE accurate records of all of its costs,
disbursements and receipts with respect to its activities under this CONTRACT,
and shall provide copies of all such records to STATE in its certified status reports
upon request by the STATE. Such accounts, documents, and records shall be
retained by the GRANTEE for at least five years following final payment.
4. The GRANTEE shall use a generally accepted accounting system.
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I. Use of Facilities
1. The GRANTEE agrees that the GRANTEE shall operate and maintain, and retain
full control of the property acquired or developed with the GRANT MONIES, for the
duration of the CONTRACT PERFORMANCE PERIOD.
2. The GRANTEE agrees that, during the CONTRACT PERFORMANCE PERIOD,
the GRANTEE shall use the property acquired or developed with grant funds
under this CONTRACT only for the purposes of this grant and no other use, sale,
assignment, transfer, mortgage, or other disposition or change of the control or
use of the property or of any interest in the property to one not consistent with the
grant purpose shall be permitted except as authorized by the DEPARTMENT
and the property shall be replaced with property of equivalent value and
usefulness as determined by the STATE.
3. The property acquired or developed may be transferred or assigned to another
entity only if the successor entity assumes the obligations imposed under this
CONTRACT and only with the prior approval of STATE.
4. Any real Property (including any portion of it or any interest in it, including any
leases) may not be used as security or collateral for any debt, loan or mitigation,
without the prior written approval of the STATE, provided that such approval shall
not be unreasonably withheld as long as the purposes for which the grant was
awarded are maintained. Any such permission that is granted does not make
STATE a guarantor or a surety for any debt, loan or mitigation, nor does it waive
STATE's rights to enforce performance under the CONTRACT.
5. All real property (including any portion or interest in it, including any leases), or
rights thereto, acquired with GRANT MONIES shall be subject to an appropriate
form of restrictive title, rights, or covenants approved by the STATE. If the project
property is taken by use of eminent domain, GRANTEE shall reimburse STATE
an amount at least equal to the amount of grant monies received from STATE or
the pro -rated full market value of the real property, including improvements, at the
time of sale, whichever is higher.
6. If eminent domain proceedings are initiated against GRANTEE, GRANTEE shall
notify STATE within 10 days of receiving the complaint.
J. Nondiscrimination
1. The GRANTEE shall not discriminate against any person on the basis of sex,
race, color, national origin, age, religion, ancestry, sexual orientation, or disability
in the use of any property or facility developed pursuant to this CONTRACT.
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2. The GRANTEE shall not discriminate against any person on the basis of
residence except to the extent that reasonable differences in admission or other
fees may be maintained on the basis of residence and pursuant to law.
3. All facilities shall be open to members of the public generally, except as noted
under the special provisions of this project contract or under provisions of the
enabling legislation and/or grant program.
K. Severability
If any provision of this CONTRACT or the application thereof is held invalid, that
invalidity shall not affect other provisions or applications of the CONTRACT which
can be given effect without the invalid provision or application, and to this end the
provisions of this CONTRACT are severable.
L. Liability
STATE assumes no responsibility for assuring the safety or standards of
construction, site improvements or programs related to the GRANT SCOPE.
The STATE'S rights under this CONTRACT to review, inspect and approve
the GRANT SCOPE and any final plans of implementation shall not give rise
to any warranty or representation that the GRANT SCOPE and any plans or
improvements are free from hazards or defects.
2. GRANTEE shall ensure that any contractor hired has adequate liability
insurance, performance bond, or other security necessary to protect the
GRANTEE interest and the STATE's interest against poor workmanship,
fraud, or other potential loss associated with the completion of the GRANT
PROJECT.
M. Assignability
Without the written consent of the STATE, the GRANTEE'S interest in and control
of any portion of the GRANT PROJECT and responsibilities under this CONTRACT
shall not be assignable or transferable by the GRANTEE either in whole or in part.
N. Use of Grant Monies
GRANTEE shall not use any grant funds (including any portion thereof) for the
purpose of making any leverage loan, pledge, promissory note or similar financial
device or transaction, without: 1) the prior written approval of the STATE; and 2)
any financial or legal interests created by any such leverage loan, pledge,
promissory note or similar financial device or transaction in the project property
shall be completely subordinated to this CONTRACT through a Subordination
Agreement provided and approved by the STATE, signed by all parties involved in
the transaction, and recorded in the County Records against the fee title of the
project property.
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DocuSign Envelope ID: 3EC9E6C7-D889-4D2B-9COB-73827F85FA18
O. Section Headings
The headings and captions of the various sections of this CONTRACT have been
inserted only for the purpose of convenience and are not a part of this CONTRACT
and shall not be deemed in any manner to modify, explain, or restrict any of the
provisions of this CONTRACT
P. Waiver
Any failure by a party to enforce its rights under this CONTRACT, in the event of a
breach or default, shall not be construed as a waiver of said rights; and the waiver
of any breach or default under this CONTRACT shall not be construed as a waiver
of any subsequent breach.
City of Newport Beach
GRANTEE
By:
S'�atur. Authorized Representative
Title: L 1 9 rZ4Ry S SYtv'GEJ D IYLCe-7 &1Z
Date: Z I Cb c 7a ,C E 12 Z -O Z b
STATE OF CALIFORNIA
DEPARTMENT OF PARKS AND RECREATION
//��DocuSigned by:
/�
By:
Signature o u orized Representative
Title: supervisor
Date: 12/15/2020
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date-,
{ i
By:
Aaron . Harp, City Attorney �p
Ib•tiq �
Certificate Of Completion
Envelope Id: 3EC9E6C7D8894D2B9COB73827F85FA18
Subject: Please DocuSign: SG -30-011 signed contract from agency 12.20 v2.pdf
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Record Tracking
Status: Original Holder: Melinda Steinert
12/15/2020 2:05:32 PM Melinda.Steinert@parks.ca.gov
Signer Events Signature
Barbara Baker by,
Barbara.Baker@parks.ca.gov EDII"Sil"Id
_1 ""`'°' 46" ''
Supervisor 708FDA4M9E41C...
California State Department of Parks and Recreation
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Lisa Vigil PI E D
Lisa.Vigil@parks.ca.gov
California State Department of Parks and Recreation
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6 S E C W R E D
Status: Completed
Envelope Originator:
Melinda Steinert
1416 9th Street, Room 950
Sacramento, CA 95814
Melinda.Steinert@parks.ca.gov
IP Address: 134.186.221.7
Location: DocuSign
Timestamp
Sent: 12/15/2020 2:06:57 PM
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Signed: 12/15/2020 2:09:20 PM
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Electronic Record and Signature Disclosure created on: 4/25/2018 10:52:43 AM
Parties agreed to: Barbara Baker
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State of California - Natural Resources Agency
Department of Parks and Recreation
t� GRANT CONTRACT
General Fund
Specified Grants
GRANTEE City of Newport Beach
GRANT PERFORMANCE PERIOD is from July 01, 2019 through June 30, 2022
CONTRACT PERFORMANCE PERIOD is from July 01, 2019 through June 30, 2022
The GRANTEE agrees to the terms and conditions of this Contract, and the State of California, acting
through its Director of Parks and Recreation, pursuant to the State of California, agrees to fund the total
State grant amount indicated below. The GRANTEE agrees to complete the GRANT SCOPE(s) as
defined in the GRANT SCOPE /Cost Estimate Form of the application(s) filed with the State of California.
Total State grant amount not to exceed $485,000.00
The General and Special Provisions attached are made a part of and incorporated into the Contract
City of Newport Beach STATE OF CALIFORNIA
GRANTEE DEPARTMENT OF PARKS AND RECREATION
By Ti M Hero ip/4
ITyped or printed name of Authorized Representative
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Signature of Authorized Representative
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Title 1-119 RAO S T- V%CF-S p�124 LTG R
Date 21 J¢Ai vAtL*,, z b z_ b
Date
CERTIFICATION OF FUNDING
CONTRACT NO AMENDMENT N I
FISCAL SUPPLIER I.D.
PROJECT NO.
05052016
0000011771
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AMOUNT ENCUMBERED BYTHIS DOCUMENT
FUND.
$485,000.00
General Fund
PRIOR AMOUNT ENCUMBERED FOR THIS
ITEM
CHAPTER
STATUTE
FISCAL YEAR
IcoNTRAcr
3790-101-0001(1) p)
23
19
2019/20
TOTAL AMOUNT ENCUMBERED TO DATE
INDEX.
OBJ. EXPEND
ACTIVITY CODE
PROJECT / WORK PHASFV
s S485,000.00
1091
702
60045
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T.B.A. NO.
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I her upon my personal owledge that budgeted funds are available for this encumbrance_
B.R.. NO.
WING OF ER'S SIG TURE Demetri-Williams
etetriVinis s
DATE
i q� 7
`y APPROVED AS TO FORM:
CITY( ATTORNEY'S OFFICE
Date: 1 h W2
1
Ry:
--. ---- - Aaron C. Harp, City Attorney D1v !1P
RECITALS
This CONTRACT is entered into between the California Department of Parks and
Recreation (hereinafter referred to as "GRANTOR," "DEPARTMENT" or "STATE) and
City of Newport Beach (hereinafter referred to as "GRANTEE'.
The DEPARTMENT hereby grants to GRANTEE a sum (also referred to as."GRANT
MONIES") not to exceed $485,000 , subject to the terms and conditions of this
AGREEMENT and the 2019/20 California State Budget, Chapter 23, statutes of 2019,
Item number — 3790-101-0001(1)2(p) (appropriation chapter and budget item number
hereinafter referred to as "SPECIFIED GRANT. These funds shall be used for
completion of the GRANT SCOPE(S).
The Grant Performance Period is from July 01, 2019 to June 30, 2022
11. GENERAL PROVISIONS
A. Definitions
As used in this CONTRACT, the following words shall have the following meanings:
1. The term "APPLICATION" means the individual project APPLICATION packet for a
project pursuant to the enabling legislation and/or grant program PROCEDURAL
GUIDE requirements.
2. The term "CONTRACT PERFORMANCE PERIOD" means the duration of time
during which this CONTRACT is in effect.
3. The term "DEPARTMENT' or "STATE° means the California Department of Parks
and Recreation.
4. The term "DEVELOPMENT' means capital improvements to real property by
means of, but not limited to, construction, expansion, and/or renovation, of
permanent or fixed features of the property.
5. The term "GRANTEE" means the party described as the GRANTEE in Section I of
this AGREEMENT.
6. The term "GRANT PERFORMANCE PERIOD" means the period of time during
which eligible costs may be incurred by the GRANTEE and paid for by the
DEPARTMENT, as specked in the fully executed CONTRACT.
7. The term "GRANT PROJECT" means all real estate, leases, subleases, buildings,
and other property acquired or developed with GRANT monies.
8. The term "GRANT SCOPE" means the items listed in the GRANT SCOPE/Cost
Estimate Form found in each of the APPLICATIONS submitted pursuant to this
grant.
9. The term "PROCEDURAL GUIDE" means the document identified as the
"Procedural Guide for Sculpture Garden Specified Grant." The PROCEDURAL
GUIDE provides the procedures and policies controlling the administration of the
grant.
B. Project Execution
1. Subject to the availability of GRANT MONIES, the STATE hereby grants to the
GRANTEE a sum of money not to exceed the amount stated in Section I of this
CONTRACT, in consideration of, and on condition that, the sum be expended in
carrying out the purposes as set forth in the scope described in the enabling
legislation and referenced in the APPLICATION, Section I of this CONTRACT, and
under the terms and conditions set forth in this CONTRACT.
The GRANTEE shall assume any obligation to furnish any additional funds that
may be necessary to complete the GRANT SCOPE(S).
During the CONTRACT PER PERIOD, the GRANTEE agrees to
submit any proposed change or alteration from the original GRANT SCOPE(S) in
writing to the STATE for'prior approval. This applies to any and all proposed
changes that will occur after STATE has approved the APPLICATION. Changes in
the GRANT SCOPE(S) must first be approved in writing by the STATE.
2. The GRANTEE shall complete the. GRANT SCOPE(S) in accordance with the time
of the Performance Period set forth in Section I of this CONTRACT, and under the
terms and conditions of this contract.
3. The GRANTEE shall comply with the Califomia Environmental Quality Act Public
Resources Code, Section 21000, et seq., Title 14, California Code of Regulations,
Section 15000 et seq.).
4. The GRANTEE shall comply with all applicable current laws and regulations
affecting. DEVELOPMENT projects, including, but not limited to, legal requirements
for construction contracts, building codes, health and safety codes, -and laws and
codes pertaining to individuals with disabilities, including but not limited to the
Americans With Disabilities Act of 1990 (42 U.S.C_ §12101 et seq.) and the
California Unruh Act (California Civil Code §51 et seq.)
C. Project Costs
1. GRANTEE agrees to abide by the PROCEDURAL GUIDE.
2. GRANTEE acknowledges that STATE may make reasonable changes to its
procedures as set -forth in the PROCEDURAL GUIDE. If STATE makes any
changes to its procedures and guidelines, STATE agrees to notify GRANTEE
within a reasonable time.
2'
D. Project Administration
If GRANT MONIES are advanced for DEVELOPMENT projects, the advanced
funds shall be placed in an interest bearing account until expended. Interest
earned on the advanced funds shall be used on the project as approved by the
STATE. If grant monies are advanced and not expended, the unused portion of the
grant and any interest earned shall be returned to the STATE within 60 days after
project completion or end of the GRANT PERFORMANCE PERIOD, whichever is
earlier.
2. During the GRANT PERFORMANCE PERIOD, the GRANTEE shall submit written
project status reports within 30 calendar days after the STATE has made a specific
request. All such project status reports shall be signed and certified as complete
and accurate by the authorized representative of the GRANTEE. In any event, the
GRANTEE shall provide the STATE a report showing total final project
expenditures within 6,0 days of project completion or the end of the GRANT
PERFORMANCE PERIOD whichever is earlier. The GRANT PERFORMANCE
PERIOD is identified in Section I of this CONTRACT.
3, The GRANTEE shall make property or facilities acquired and/or developed
pursuant to this contract available for inspection upon request by the STATE.
E. Project Termination
1. Project Termination refers to the non -completion of a GRANT SCOPE. Any
grant funds that have not been expended by the GRANTEE shall revert to the
STATE.
2. The GRANTEE may unilaterally rescind this contract at any time prior to the
commencement of the project. The commencement of the .project means the date
of the.letter notifying GRANTEE of the award or when the funds are appropriated,
whichever is later. After project commencement, this contract may be rescinded,
modified or amended only by mutual CONTRACT in writing between the
GRANTEE and the STATE, unless the provisions of this contract provide that
mutual CONTRACT is not required.
3. Failure by the GRANTEE to comply with the terms of the (al PROCEDURAL
GUIDE, (b) this dONTRACT or any other grant contracts, specified or general, that
GRANTEE has entered into with STATE or any other department, agency,
commission or other subdivision of Califomia State government, may be cause for
suspension of all obligations of the STATE unless the STATE determines that such
failure was due to no fault of the GRANTEE. In such case, STATE may reimburse
GRANTEE for eligible costs property incurred in performance of this CONTRACT
despite non-performance of the GRANTEE. To qualify for such reimbursement,
GRANTEE agrees to mitigate its losses to the best of its ability.
4. Any breach of any term, provision, obligation or requirement of this CONTRACT by
the GRANTEE shall be a default of this CONTRACT. In the case of any default by
GRANTEE, STATE shall be entitled to all remedies available under law and equity,
including but not limited to: a) Specific Performance; b) Return of all GRANT
3
MONIES; c) Payment to the STATE of the fair market value of the project property
or the actual sales price, whichever is higher; and d) Payment to the STATE of the
costs of -enforcement of this CONTRACT, including but not limited to court and
arbitration costs, fees, expenses of litigation, and reasonable attorney fees.
5. The GRANTEE and the STATE agree that if the GRANT SCOPE includes
DEVELOPMENT, final payment may not be made until the work described in the
GRANT SCOPE is complete and the GRANT PROJECT is open to the public.
F. Budget Contingency Clause
If funding for any fiscal year is reduced or deleted by the budget act for purposes of this
program, the STATE shall have the option to either cancel this contract with no liability
occurring to the STATE, or offer a CONTRACT amendment to GRANTEE to reflect the
reduced grant amount. This Paragraph shall not require the mutual CONTRACT as
addressed in Paragraph E, subsection 2, of this CONTRACT
G. Hold Harmless
1. The GRANTEE shall waive all claims.and recourse against the STATE including
the right to contribution for loss or damage to persons or property arising from,
growing out of or in any way connected with or incident to this CONTRACT except
claims arising from the concurrent or sole negligence of the STATE, its officers,
agents, and employees.
2. The GRANTEE shall indemnify, hold harmless and defend the STATE, its officers,
agents and employees against any and all claims, demands, damages, costs,
expenses or liability costs arising out of the ACQUISITION, DEVELOPMENT,
construction, operation or maintenance of the property described as the project
which claims, demands or causes of action arise under Califomia Government
Code Section 895.2 or otherwise except for liability arising out of the concurrent or
sole negligence of the STATE, its officers, agents, or employees.
3. The GRANTEE agrees that in the event the STATE is named as codefendant
under the provisions of California Government Code Section 895 et seq., the
GRANTEE shall notify the STATE of such fact and shall represent the STATE in
the legal action unless the STATE undertakes to represent itself as codefendant in
such legal action in which event the GRANTEE agrees to pay the STATE's
litigation costs, expenses, and reasonable attorney fees.
4. The GRANTEE and the STATE agree that in the event of judgment entered against
the STATE and the GRANTEE because of the concurrent negligence of the STATE
and the GRANTEE, their officers, agents, or employees, an apportionment of
liability to pay such judgment shall be made by a court of competent jurisdiction.
Neither party shall request a jury apportionment.
4
5. The GRANTEE shall indemnify, hold harmless and defend the STATE, its officers,
agents and employees against any and all claims, demands,' costs, expenses or
liability costs arising out of legal actions pursuant to items to which the GRANTEE
has certified. The GRANTEE acknowledges that it is solely responsible for
compliance with items to which it has certified.
H. Financial Records
1. The GRANTEE shall maintain satisfactory financial accounts, documents, including
loan documents, and all other records for the project and shall make them available
to the STATE for auditing at reasonable times. The GRANTEE also agrees to
retain such financial accounts, documents and records for five years following
project termination or final payment.
2. The GRANTEE shall keep such records as the :STATE.shall prescribe, -including
records which fully disclose (a) the disposition of the proceeds of STATE funding
assistance, (b) the total cost of the project in connection with such assistance that is
given or used, (c) the amount, source and nature of that portion of the project cost
supplied_ by other sources, and (d) any other such records that will facilitate an
effective audit.
3. The GRANTEE agrees that the STATE shall have the right to inspect and make
copies of any books, records or reports pertaining to this contract or matters related
thereto during regular office hours. The GRANTEE shall maintain and make
available for inspection by the STATE accurate records of all of its costs,
disbursements and receipts with respect to its activities under this CONTRACT,
and shall provide copies of all such records to STATE in its certified status reports
upon request by the STATE. Such accounts, documents, and records shall be
retained by the GRANTEE for at least five years following final payment.
4. The GRANTEE shall use a generally accepted accounting system. .
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1. Use of Facilities
1. The GRANTEE agrees that the GRANTEE shall operate and maintain, and retain
full control of the property acquired or developed with the GRANT MONIES, for the
duration of the CONTRACT PERFORMANCE PERIOD.
2. The GRANTEE agrees that, during the CONTRACT PERFORMANCE PERIOD,
the GRANTEE shall use the property acquired or developed with grant funds
under this CONTRACT only for the purposes of this grant and no other use, sale,
assignment, transfer, mortgage, or other disposition or change of the control or
use of the property or of any interest in the properly to one not consistent with the
grant purpose shall be permitted except as authorized by the DEPARTMENT
and the property shall be replaced'with property of equivalent value and
usefulness as determined by the STATE.
3. The property acquired or developed may be transferred or assigned to another
entity only if the successor entity assumes the obligations imposed under this
CONTRACT and only with the prior approval of STATE.
4. Any real Property (including any portion of it or any interest.in it, including any,
leases) may not be used as security or collateral for any debt, loan or mitigation,
without the prior written approval of the STATE, provided that such approval shall
not be unreasonably withheld as long as the purposes for which the grant was
awarded are maintained. Any such permission that is granted does not make
STATE a guarantor or a surety for any debt, loan or mitigation, nor does it waive
STATE's rights to enforce performance under the CONTRACT.
5. All real property (including any portion or interest in it, including any leases), or
rights thereto, acquired with GRANT MONIES shall.be subject to an appropriate
form of restrictive title, rights, or covenants approved by the STATE. If the project
property is taken by use of eminent domain, GRANTEE shall reimburse STATE
an amount at least equal to the amount of grant monies received from STATE or
the pro -rated full market value of the real property, including improvements, at the
time of sale, whichever is higher.
6. If eminent domain proceedings are initiated against GRANTEE, GRANTEE shall
notify STATE within 10 days of receiving the complaint.
J. Nondiscrimination
1. The GRANTEE shall not discriminate against any person on the basis of sex,
race, color, national origin, age, religion, ancestry, sexual orientation, or disability
in the use of any property or facility developed pursuant to this CONTRACT.
N.
2. The GRANTEE shall not discriminate against any person on the basis of
residence except to the extent that reasonable differences in admission or other
fees may be maintained on the basis of residence and pursuant to law.
3. All facilities shall be open to members of the public generally, except as noted
under the special provisions of this project contract or under provisions of the
enabling legislation and/or grant program.
K. Severability
If any provision of this CONTRACT or the application thereof is held invalid, that
invalidity shall not affect other provisions or applications of the CONTRACT which
can be given effect without the invalid provision or application, and to this end the
provisions of this CONTRACT are severable.
L. Liability
1. STATE assumes no responsibility for assuring the safety or standards of
construction, site improvements or programs related to the GRANT SCOPE.
The STATE'S rights under this CONTRACT to review, inspebt and approve
the GRANT SCOPE and any final plans of implementation shall, not give rise
to any warranty or representation that the GRANT SCOPE and any plans or
improvements are flee from hazards or defects. t
2. GRANTEE shall ensure that any contractor. hired has,.adequate liability
insurance, performance bond, or otheF security neiksary,to praoteet the
GRANTEE interest and the STATE's interest against poor workmanship,
fraud, or other potential loss associated with the completion of the GRANT
PROJECT..
M. Assignability
Without the written consent of the STATE, the GRANTEE'S interest in and control
of any portion of the GRANT PROJECT and responsibilities under this CONTRACT
shall not be assignable or transferable by the GRANTEE either in whole or in part.
N. Use of Grant Monies
GRANTEE shall not use any grant funds (including any portion thereof) for the
purpose of making any leverage Loan, pledge, promissory note or similar financial
device or transaction, without: 1) the prior written approval of the STATE; and 2)
any financial or legal interests created by any such leverage loan, pledge,
promissory note or similar financial device or transaction in the project property
shall be completely subordinated to this CONTRACT through a Subordination
Agreement provided and approved by the STATE, signed by all parties involved in
the transaction, and recorded in the County Records against the fee title of the
project property. .
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O. Section Headings
The headings and captions of the various sections of this CONTRACT have been
inserted only for the purpose of convenience and are not a part of this CONTRACT
and shall not be deemed in any manner to modify, explain, or restrict any of the
provisions of this CONTRACT
P. Waiver
Any failure by a party to enforce its rights under this CONTRACT, in the event of a
breach or default, shall not be construed as a waiver of said rights; and the waiver
of any breach .or default under this CONTRACT shall not be construed as a waiver
of any subsequent breach.
_City of Newport Beach
GRANTEE
By. - '1.�--�--
Sig ure of Aluthorized Representative
Title: Ll0RAiZl SEizv\GES D1VUe. r0 P --
Date: 6-3 AN A l -"*l Z 6 Z 6
STATE OF CALIFORNIA
DEPART NT OF PARK AN RECREATION
By.
Date: t' Aq 9O�U
—�
0
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: I ai ( I
P
By:
I�
on C. Harp City Attorney
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