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HomeMy WebLinkAboutC-3078(A) - Urban Parks Program Funding Assistance AgreementCounty ot%range Uzi o. M Public Facilities & Resources Department c a ♦P �LIFOt<N John W. Sibley, Director March 7, 1997 Ms. Peggy Ducey City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 Subject: Urban Parks Program D96 -156 for Castaways Park Improvements Dear Ms. Ducey: Enclosed for your files is a fully executed original of financial assistance agreement D96 -156 for Castaways Park improvements. Also enclosed is a copy of the minutes from the February 25, 1997 Board meeting. Please contact me at 834 -6784 if you have any questions regarding these documents. Very truly yours, Helen Mackin, Staff Analyst HBP /Program Support HMM:ms7O30714O44328 Attachment: Agreement D96 -156 Minute order dated 2/25/97 41? Rat; LOCATION: MAILING ADDRESS: INFORMATION: 300 N. FLOWER ST. P.O. BOX 4048 (714) 834 -2300 SANTA ANA, CALIFORNIA SANTA ANA, CA 92702 -4048 FAX# 834 -5188 0 0 ORANGE COUNTY BOARD OF SUPERVISORS MINUTE ORDER 74 ej aawa m&a 4 ffm goama 4 Sovwcmw ew244r�m251M APPROVED AS RECOMMENDED N OTHER ❑ Unanimous'--' (I) Smith Y (2) Silva NI (3) Spitzer Y (4) Steiner Y (5) Wilson Y Vote Key: Y= Yes; N =No; A= Abstain; X= Excused; B. 0. =Board Order Documents accompanying this matter: Resolution(s) Ordinances(s) Contract(s) Submittingjggncv /Department: Public Facilities & Resources Department jQpk: Approve Agreement D96 -156 with the City of Newport Beach for asphalt hiking trail improvements at Castaways Park ($50,000) - District 5 File No. 18053 Item No. Special Notes: Copies sent to: (�W CaUne11OTO/L / f7u�iroa�,,.i 3��197 c:\uscr\minordmd.doc I certify that the foregoing is a true and correct copy of the Minute Order adopted by the Board of Supervisors, Orange County, State of California. DARLENE J. BLOOM, Clerk of the Board By: i v Depg 1 2 3 4 5 6 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROJECT: City of Newport Beach Castaways Park Asphalt Hiking Trails (Job No. EH23345) Agreement No. D96 -156 Fifth District URBAN PARRS PROGRAM FUNDING ASSISTANCE AGREEMENT This AGREEMENT is made and entered into this day of 1997 BY AND BETWEEN D The City of Newport Beach, a municipal corporation, hereinafter referred to as "CITY, The County of Orange, a subdivision of the State of California, hereinafter referred to "COUNTY." RECITALS WHEREAS, CITY has proposed to construct asphalt hiking trails (pedestrian and bicycle) improvements at Castaways Park, and will award a contract for construction of said improvements, hereinafter referred to as "PROJECT;" and WHEREAS, the cost for development and construction of said PROJECT improvements is estimated at $100,000; and WHEREAS, CITY has requested funds in an amount not to exceed $50,000, to assist with financing said PROJECT improvements; and WHEREAS, COUNTY finds that completion of PROJECT will provide enhanced recreational facilities for all residents of Orange County; and WHEREAS, COUNTY has established a program, which has generally become know as the "Urban Parks Program," to budget funds annually for use towards projects which remedy regional park deficiencies in urbanized areas; and WHEREAS, COUNTY desires to participate in said PROJECT by providing fundin assistance in an amount not to exceed the lesser of actual development /construction -1- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 • Agreement No. D96 -156 costs or $50,000, from Urban Parks Program funds for PROJECT development and construction costs, thereto. NOW, THEREFORE THE PARTIES MUTUALLY AGREE AS FOLLOWS: 1. PROJECT a. PROJECT shall consist solely of constructing asphalt hiking trails (pedestrian and bicycle) that provide access to panoramic view and wildlife sightings at the Upper Newport Bay, Castaways Park. b. PROJECT is located within the City of Newport Beach, California, and is more specifically described and illustrated in the accompanying application package and site plan, entitled Exhibit "A," attached hereto and by this reference, made a part thereof. 2. CITY agrees to award contract(s) for construction of said PROJECT on before June 30, 1997, and to complete PROJECT by December 31, 1997. The period for completion as set forth herein however, shall be extended by the period that completion is delayed by acts otherwise outside the control of CITY. 3. FINANCIAL ASSISTANCE a. Financial assistance in an amount not to exceed the lesser of actual construction /development costs or $50,000, shall be provided by COUNTY from Harbors, Beaches and Parks funds. Funds shall be used solely for PROJECT's development and construction costs, including, but not limited to architectural design, engineering plans and specifications, contract labor, construction materials and machinery or equipment rental. COUNTY's contribution shall not be used for CITY's staff salaries, fund- raising, on -going operations and maintenance of the facility, purchase of capital equipment related to administrative and /or maintenance duties, office supplies, project permit fees or other administrative expenses or overhead. b. The Manager of Harbors, Beaches and Parks, hereinafter referred to -2- 1 2 3 4 5 6 7 8 0 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 • Agreement No. D96 -156 as MANAGER, or his appointed designee, shall have the authority to make budget adjustments to the AGREEMENT, with concurrence of CITY, as deemed necessary in order to advance the purposes of this AGREEMENT, provided that such action does not in the aggregate, exceed the total amount of financial assistance specified in sub - paragraph a., above, unless approved by the Board of Supervisors. 4. ADMINISTRATION CITY shall have the sole responsibility for administering and obtainin all governmental agency approvals for said PROJECT, including, but not limited to the selection of contractors, management of contractors' work, administration of contract for compliance with the requirements of all applicable local zoning and building and other regulations. S. OPERATIONS AND MAINTENANCE CITY agrees to operate and maintain Castaways Park, or cause the operation and maintenance thereof through others, as approved by MANAGER, for the use by and benefit of residents countywide, for a minimum of ten (10) years from the date of PROJECT completion. CITY shall not discriminate as to fees, hours of use, reservation privileges or any other use privileges based upon residence. 6. CITY shall: a. remain the "lead agency" for services required under this AGREEMENT, within the context of the California Environmental Quality Act of 1970 as amended. b. provide staff assistance and all permits necessary for PROJECT at no cost to COUNTY. C. complete PROJECT by December 31, 1997. d. invoice COUNTY upon completion of PROJECT, for an amount not to exceed the lesser of actual development and construction costs or $50,000. All invoices shall include a Project Cost Summary, complete with documentation of all PROJECT expenditures, including copies of construction contract(s) awarded pursuant -3- • Agreement No. D96 -156 this PROJECT, canceled checks, paid bills and /or invoices. All invoices shall be 1 subject to the routine processing requirements of COUNTY's Auditor - Controller. 2 e. permit COUNTY to review records relating to PROJECT expenditures. 3 Records shall be retained and made available to COUNTY for review for a minimum of 4 three (3) years after completion of PROJECT. 5 7. COUNTY shall: 6 Remit funds to CITY, as specified in Paragraph 3 above, upon completi 7 of said PROJECT, and within sixty (60) days of receipt and approval by MANAGER, of 8 CITY's invoices(s) substantiating PROJECT expenditures. 9 8. NOTICES 10 a. Notices or other communications which may be required or provided 11 under the terms of this AGREEMENT shall be given as follows: 12 COUNTY: Manager of Harbors, Beaches and Parks 13 Public Facilities and Resources Department County of Orange 14 P.O. Box 4048 Santa Ana, CA 92702 -4048 15 CITY: City Manager 16 City of Newport Beach 3300 Newport Blvd. 17 Newport Beach, CA 92663 18 INVOICES: Financial Operations - Business Office Public Facilities and Resources Department 19 P.O. Box 4048 Santa Ana, CA 92702 -4048 20 21 b. All notices shall be deemed effective when in writing and deliver 22 in person or deposited in the United States mail, first class, postage prepaid and 23 addressed as above. Notwithstanding the above, COUNTY and CITY may also provide 24 notices by facsimile transmittal, and any such notice so given shall be deemed to ha' 25 been given upon receipt. Any notices, correspondence, reports and /or statements 26 authorized or required by this AGREEMENT, addressed in any other fashion shall be 27 deemed not given. The parties hereto may change the addresses to which notices are 28 be sent by giving notice of such change to the other party. -4- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9. • Agreement No. D96 -156 a. Prior to CITY's commitment of funds such as award of contracts to expend funds that would be reimbursed by COUNTY pursuant hereto, either party may terminate this AGREEMENT with or without cause, upon notice to the other party. b. After CITY has made a commitment of funds to PROJECT, COUNTY may terminate only if CITY does not proceed with PROJECT in accordance with the hereof. C. Notice of termination shall be in writing and shall state the c for termination, if cause is required, and the date upon which such termination is effective. Notice shall be served as provided in Paragraph 8, above. 10. FAILURE TO COMPLETE CITY agrees that in the event it, or its successor in interest, does not complete construction of said PROJECT as specified in Paragraph 2 above, AGREEM shall be subject to termination as specified in Paragraph 9 above. 11. INDEPENDENT CONTRACTOR STATUS This AGREEMENT is by and between COUNTY and CITY and is not intended and shall not be construed so as to create the relationship of agent, servant, employee, partnership, joint venture or association, as between COUNTY and CITY. 12. CITY agrees to indemnify, defend and save harmless COUNTY, its agents, officers and employees from and against any and all liability, expense, including defense costs and legal fees, and claims for damages of any nature whatsoever, including, but not limited to bodily injury, death, personal injury or property damage arising from or connected with CITY's construction, operation, or services provided hereunder, including without limitation, any workers' compensation suits, liability, or expense arising from or connected with services performed on behalf of CITY by any person pursuant to this AGREEMENT. -5- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13. ASSIGNMENT • Agreement No. D96 -156 Any transfer or assignment of CITY's interest in PROJECT, or any part or portion thereof, shall first be approved in writing by COUNTY, which approval COUNTY shall not unreasonably withhold. Failure to obtain COUNTY's required written approval of any proposed transfer or assignment will render this AGREEMENT t as specified in Paragraph 9 above. 14. WAIVER OF RIGHTS The failure of COUNTY or CITY to insist upon strict performance of any of the terms, covenants or conditions of this AGREEMENT shall not be deemed a waiver of any right or remedy that COUNTY or CITY may have, and shall not be deemed a waiver of the right to require strict performance of all the terms, covenants and conditions of the AGREEMENT thereafter, nor a waiver of any remedy for the subsequent breach or default of any term, covenant or condition of this AGREEMENT. 15. TERM OF AGREEMENT The term of this AGREEMENT shall commence upon execution by COUNTY's Board of Supervisors and shall, with the exception of Paragraph 12, terminate on December 31, 1997, or on a date subject to the performance requirements specified in Paragraph 2, or in accordance with the termination provisions of this AGREEMENT described in Paragraph 9 above, provided however, that CITY's obligations under Paragraph 5 above, shall remain in effect and be enforceable by COUNTY unless all funds paid by COUNTY hereunder to CITY have been refunded to COUNTY. 16. EFFECT OF AGREEMENT This AGREEMENT fully expresses all understanding of the parties and is the total AGREEMENT between the parties as to the subject matter of this AGREEMENT. No addition to or alteration of the terms of this AGREEMENT, whether written or verbal, by the parties, their officers, agents or employees, shall be valid unless in the form of a written amendment to this AGREEMENT, and is formally approved and executed by all parties. -6- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28I 0 0 Agreement No. D96 -156 IN WITNESS WHEREOF, each party hereto has executed this AGREEMENT by a duly representative as of the date set forth above. DATE: 02 DATE: ATTEST: City Clerk SIGNED AND CERTIFIED THAT A COPY OF THIS DOCUMENT HAS BEEN DELIVERED TO THE CHAIRMAN OF THE BOARD ATTEST. COUNTY OF ORANGE BY: Chairman of the Board of Supervisors of Orange County, California CITY OF NEWPORT BEACH %° kPi?-01'r-D AS TO FORV.: APPROVED AS TO FORM: LAURENCE N. WATSON BY: Darlend J. Bloom Clerk of the Board of Supervisors of Orange County, California HMM:ms6110709523740 Attachment: Exhibit A -7- E X H I B I T A N1OV 0 I IJ96 FLF1'11 DISTRICT Urban Parks Program Funding Application Read instructions on reverse side before answering questions. 1. Agency /Jurisdiction: Newport Beach 2, Project Title: Castaways Park - Asphalt Hiking Trails 3. Estimated Total Project Cost: $ 4. Amount Requested: $ 100,000 50,000 S. Project Location (street address, closed intersection and attach vicinity map): Dover Drive, between pacific Coast Highway and 16th Street (Attachment 1) 6. Description of Project (be specific - applicant will be bound by this description; attach additional sheets if necessary): Construction of a new passive view park with hiking trails that provide access to panaramic views and wildlife sightings at the Upper Newport Bay. (Attachment 2, City Council Action and Attachment 3, Park Plan) 7. a. Estimated Project Start Date: 2/97 S. Have development plans been prepared? Yes b. Estimated Completed Date: 4/97 9. Date of Availability of Agency's Matching 10. Source of Agency's Matching Funds: 7/l/96 (approved in FY 96/97 budget) Funds: City park In -Lieu Funds (Ait-Lachment 4_ AudgPt) 11. a. Use Radius of Project in Miles: Regional County -wide benefit b. Population served: Residents throughout the region. 12. Agency's Contact (person with day -to -day responsibility for the proposed project). Name: Don Webb Title: Director, Public Works Telephone: (714) 644 -3111 13. Agency's Name and Address: 14. City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 Aut i,e Si tat-re PLEASF. NO'T'E: Resolution documenting approval . of proposed project from requesting Agency's governing body must be submitted along with funding application. IIM;nC404210 8275432 City Manager Title 10/31/96 Date For County Use Only: Request__Rejected_ Date of Action Amount of Approved_ Date of Agreement:_ Agreement No. Approved The Castaways Park project is a passive or view park with a 30 space parking lot. The project will be constructed in two phases: Phase I Bluff top (view) park improvements including asphalt trails (pedestrian - bicycle), low level trail lighting and some landscaping. Phase 2 Parking lot improvements including the 30 space City lot and major modifications to the Newport Ilarbor Lutheran Church parking lot. A preliminary cost estimate is: Phase 1 $250,000 Phase 2 $350,000 The Phase I estimate can be broken clown as follows: Clearing and Grading $ 25,000 Asphalt trails 100,000 Ligbting Emmet Berkery, P.E. Landscape 50,000 3345 Newport Boulevard 90,000 Suite 215 Newport Beach, CA 92663 Telephone: (714) 673 -6446 Facsimile: (714) 673 -6899 MEM0ItANI)UM DATE-: October 25, 1996 TO: Peggy Ducey PROM: Emmet Berkery SUBJECT: Castaways Park The Castaways Park project is a passive or view park with a 30 space parking lot. The project will be constructed in two phases: Phase I Bluff top (view) park improvements including asphalt trails (pedestrian - bicycle), low level trail lighting and some landscaping. Phase 2 Parking lot improvements including the 30 space City lot and major modifications to the Newport Ilarbor Lutheran Church parking lot. A preliminary cost estimate is: Phase 1 $250,000 Phase 2 $350,000 The Phase I estimate can be broken clown as follows: Clearing and Grading $ 25,000 Asphalt trails 100,000 Ligbting 35,000 Landscape 50,000 Irrigation 90,000 Please remember these figures aic preliminary. Any funding which could be obtained from outside sources will be most welcome. cc: Kevin Murphy lion Webb LaDonna Kicnitz Bill Palapoff ACa � i!eYee� �x U tea, Q a. w s Q ,1 /) "V C111 c::- U �j LLJ ell o< U) Lj 5T Ir f::4n An 14 '�V' L5Z c- -el - - - - - - - - - - - - -- z C�ANICC rUR"ING 9ASIN I'D 0 1. I j�n — �sl Ilk 5T Ir f::4n An 14 '�V' L5Z c- -el - - - - - - - - - - - - -- z C�ANICC rUR"ING 9ASIN I'D • • • DATE: TO: FROM: SUBJECT: • CITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER January 13, 1997 • 1 3Z Agenda Item io err .�W 13097 F,i'°'KUVED Honorable Mayor and Members of the City Council Peggy Ducey, Assistant to City Manager County Urban Park Fund Grant C���2 BACKGROUND On November 5th, the Orange County Board of Supervisors approved the City's grant application for $50,000 from the County of Orange Urban Parks Program to fund half the cost of the asphalt trails at Castaways Park. Attached is the grant agreement that must be executed for the City to receive the funds. The grant agreement includes the following requirements: • Grant funds can only be used for capital costs, and not on -going personnel or operational costs. • The City shall be the lead agency and project manager. • The City must provide matching funds of at least 50% of the total project cost. • Grant funds can only be used for the construction of the asphalt trails at Castaways Park, unless otherwise approved by the County of Orange. • The City must maintain the park project funded by the grant for a minimum of 10 years. • The City will indemnify the County from any legal action associated with the project. • Upon completion of the project, the City shall invoice the County for 50% of the project cost, up to a maximum of $50,000. RECOMMENDATION Authorize the City Manager to execute the Urban Parks Program Funding Assistance Agreement. 01/08/97 12:30 PROGRAM PLANNING 4 96443020 • • 1 2 3 4 5 6 7 8 9 101 11 12 13 14 15 16 17 18 19 20! 21 22 23 24 25 26 27 28 PROJECT: city of Newport Reach castaways Park Asphalt Hiking Trails (Job No. 13823345) NO.424 P092 Agreement No. D96 -156 is Fifth District URBAN PARRS PROGRAM FUNDING ASSISTANCE AGREEMENT This AGREEMENT is made and entered into this day of , 1997 BY AND BETWEEN The City of Newport Beach, a municipal corporation, hereinafter referred to as "CITY, a,, . The County of orange, a subdivision of the State of California, hereinafter referred to a "COUNTY." RECITALS is WMMEAS, CITY has proposed to construct asphalt hiking trails (pedestrian and bicycle) improvements at Castaways Park, and will award a contract for construction of said improvements, hereinafter referred to as "PROJECT;" and wEzREAS, the cost for development and construction of said PROJECT improvements is estimated at $100,000; and wnEREPS, CITY has requested funds in an amount not to exceed $50,000, to assist with financing said PROJECT improvements; and WBEREAS, COUNTY finds that completion of PROJECT will provide enhanced recreational facilities for all residents of orange County; and WRKRzAs, COUNTY has established a program, which has generally become know as the "Urban Parks Program," to budget funds annually for use towards projects which remedy regional park deficiencies in urbanized areas; and � i WEEREAS, COUNTY desires to participate in said PROJECT by providing n assistance in an amount not to exceed the lesser of actual development /construction _1_ r� +1/08/97 12:30 PROGRAM PLANNING 4 96443020 NO.424 P003 i Agreement No. D96 -156 costs or $50,000, from Urban Parks Program funds for PROJECT development and • 1 construction costs, thereto. 2 I NOW, THEREFORE THE PARTSRS MUTUALLY AGREE As FOLLOWS: 3 1. PROJECT 4 a. PROJECT shall consist solely of constructing asphalt hiking trails 5 (pedestrian and bicycle) that provide access to panoramic view and wildlife sightings 6 at the Upper Newport Bay, Castaways Park. 7 b. PROJECT is located within the City of Newport Beach, California, 8 and is more specifically described and illustrated in the accompanying application 9 package and site plan, entitled Exhibit "A," attached hereto and by this reference, to 11 made a part thereof. 2. PERFORMANCE 12 CITY agrees to award contract(s) for construction of said PROJECT on ox •13 before June 30, 1997, and t0 complete PROJECT by December 31, 1997. The period for 14 completion as set forth herein however, shall be extended by the period that 15 completion is delayed by acts otherwise outside the control of CITY. 16 3. FINANCIAL ASSISTANCE 17 { a. Financial assistance in an amount not to exceed the lesser of 18 actual construction /development costs or $50,000, shall be provided by COUNTY from 19 Harbors, Beaches and Parks funds. Funds shall be used solely for PROJECT's 20 development and construction costs, including, but not limited to architectural 21 design, engineering plans and specifications, contract labor, construction materials 22 and machinery or equipment rental. COUNTY's contribution shall not be used for 23 CITY's staff salaries, fund- raising, on -going operations and maintenance of the 24 facility, purchase of capital equipment related to administrative and /or maintenance 25 26 duties, office supplies, project permit fees or other administrative expenses or overhead. 27 b. The Manager of Harbors, Beaches and Parks, hereinafter referred to 28 \ -2- 01/08/97 12:30 PROGRAM PLANNING -� 96443020 • 2 3 4 5 ,1 7 8 9' l0i 11 12 13 14 151 161 171 18 19 20 21 22 23 24 25 26 27 281 NO.424 P024 Agreement No. D96 -156 as MANAGER, or his appointed designee, shall have the authority to make budget . adjustments to the AGREEMENT, with concurrence of CITY, as deemed necessary in order to advance the purposes of this AGREEMENT, provided that such action does not in the aggregate, exceed the total amount of financial assistance specified in sub - paragraph 1. a., above, unless approved by the Board of Supervisors. 4. CITY shall have the sole responsibility for administering and obtaininc all governmental agency approvals for said PROJECT, including, but not limited to the selection of contractors, management of contractors' work, administration of contracts for compliance with the requirements of all applicable local zoning and building codes and other regulations. 5. OPERATIONS AND MAINTENANCE CITY agrees to operate and maintain Castaways Park, or cause the operation and maintenance thereof through others, as approved by MANAGER, for the* by and benefit of residents countywide, for a minimum of ten (10) years from the date of PROTECT completion. CITY shall not discriminate as to fees, hours of use, reservation privileges or any other use privileges based upon residence. 6. CITY shall: a. remain the "lead agency" for services required under this AGREEMENT, within the context of the California Environmental Quality Act of 1970 as amended. b. provide staff assistance and all permits necessary for PROJECT at no cost to COUNTY. C. complete PROJECT by December 31, 1997. d. invoice COUNTY upon completion of PROJECT, for an amount not to exceed the lesser of actual development and construction costs or $50,000. All is invoices shall include a Project Cost Summary, complete with documentation of all PROJECT expenditures, including copies of construction contract(s) awarded pursuant t -3- 01/08/97 12:30 PROGRAM PLANNING 4 96443020 • • NO.424 P005 Agreement No. D96 -156 . this PROJECT, canceled checks, paid bills and /or invoices. All invoices shall be 1 subject to the routine processing requirements of COUNTY's Auditor - Controller. 2 e. permit COUNTY to review records relating to PROJECT expenditures. 3 Records shall be retained and made available to COUNTY for review for a minimum of 4 three (3) years after completion of PROJECT. 5 7. COUNTY shall: 6 Remit funds to CITY, as specified in Paragraph 3 above, upon completio: 7 of said PROJECT, and within sixty (60) days of receipt and approval by MANAGER, of 8 CITY's invoices(s) substantiating PROJECT expenditures. 9 8. NOTICES 10 a. Notices or other communications which may be required or provided it under the terms of this AGREEMENT shall be given as follows: 12 COUNTY: Manager of Harbors, Beaches and Parks 13 Public Facilities and Resources Department • County of orange 14 P.0_ Box 4048 Santa Ana, CA 92702 -4048 15 CITY: City Manager 16 City of Newport Reach 3300 Newport Blvd. 17 Newport Beach, CA 92663 18 INVOICES: Financial Operations - Business office Public Facilities and Resources Department 19 P.O. Box 4048 Santa Ana, CA 92702 -4048 20 21 b. All notices shall be deemed effective when in writing and deliverer 22 in person or deposited in the united States mail, first class, postage prepaid and 23 addressed as above. Notwithstanding the above, COUNTY and CITY may also provide 24 notices by facsimile transmittal, and any such notice so given shall be deemed to have 25 been given upon receipt. Any notices, correspondence, reports and /or statements • 26 authorized or required by this AGREEMENT, addressed in any other fashion shall be 27 deemed not given. The parties hereto may change the addresses to which notices are tc 28 be sent by giving notice of such change to the other party. -4- 01/09/97 12:31 PROGRAM PLANNING 4 96443020 • . NO.424 P006 Agreement No. D96 -156 9. TERMINATION • 1 2 a. Prior to CITY's commitment of funds such as award of contracts to 3 expend funds that would be reimbursed by COUNTY pursuant hereto, either party may 4 terminate this AGREEMENT with or without cause, upon notice to the other party. 5 b. After CITY has made a commitment of funds to PROJECT, COUNTY may 6 terminate only if CITY does not proceed with PROJECT in accordance with the provision: hereof. 7 8 c. Notice of termination shall be in writing and shall state the caus, for termination, if cause is required, and the date upon which such termination is 9 effective. Notice shall be served as provided in Paragraph 8, above. 10 10. FAILURE TO CONFf -RTB 11 12 CITY agrees that in the event it, or its successor in interest, does not complete construction of said PROJECT as specified in Paragraph 2 above, AGREEMEN. " 13 •14 shall be subject to termination as specified in Paragraph 9 above. 11. nMZPENDBNT CONTRACTOR STATUS 15 This AGREEMENT is by and between COUNTY and CITY and is not intended 16 and shall not be construed so as to create the relationship of agent, servant, 17 employee, partnership, joint venture or association, as between COUNTY and CITY. 18 ' 12. 1=23WIFIC4TION 19 20 CITY agrees to indemnify, defend and save harmless COUNTY, its agents, 21 officers and employees from and against any and all liability, expense, including defense costs and legal fees, and claims for damages of any nature whatsoever, 22 23 including, but not limited to bodily injury, death, personal injury or property damage arising from or connected with CITY's construction, operation, or services provided 24 25 hereunder, including without limitation, any workers' compensation suits, liability, or expense arising from or connected with services performed on behalf of CITY byy 26 person pursuant to this AGREEMENT. 27 28 -5- 1 '71/09/97 12:31 PROGRAM PLANNING 4 96443020 NO.424 P007 Agreement No. D96 -156 13. ASSIGNMENT • 1 Any transfer or assignment of CITY's interest in PROJECT, or any part 2 or portion thereof, shall first be approved in writing by COUNTY, which approval 3 COUNTY shall not unreasonably withhold. Failure to obtain COUNTY's required written 4 approval of any proposed transfer or assignment will render this AGREEMENT terminated, 5 as specified in Paragraph 9 above. 6 14. WATVBR OF RIGHTS 7 The failure of COUNTY or CITY to insist upon strict performance of any 8 of the terms, covenants or conditions of this AGREEMENT shall not be deemed a waiver 9 of any right or remedy that COUNTY or CITY may have, and shall not be deemed a waiver 10 11 of the right to require strict performance of all the terms, covenants and conditions of the AGREEMENT thereafter, nor a waiver of any remedy for the subsequent breach or 12 default of any term, covenant or condition of this AGREEMENT. 13 • 15. TERM 08 AGREEMENT The term of this AGREEMENT shall commence upon execution by COUNTY's 15 Board of Supervisors and shall, with the exception of Paragraph 12, terminate on 16 December 31, 1997, or on a date subject to the performance requirements specified in . 17 Paragraph 2, or in accordance with the termination provisions of this AGREEMENT 18 described in Paragraph 9 above, provided however, that CITY's obligations under 19 Paragraph 5 above, shall remain in effect and be enforceable by COUNTY unless all 20 funds paid by COUNTY hereunder to CITY have been refunded to COUNTY. 21 16. EFFECT OF AGREEMENT 22 This AGREEMENT fully expresses all understanding of the parties and is 23 the total AGREEMENT between the parties as to the subject matter of this AGREEMENT. 24 No addition to or alteration of the terms of this AGREEMENT, whether written or 25 verbal, by the parties, their officers, agents or employees, shall be valid unless in • 26 the form of a written amendment to this AGREEMENT, and is formally approved and 27 executed by all parties_ 28 -6- h 01/08/97 12:31 PROGRAM PLANNING 4 96443020 n 0 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 7 Q 0 NO.424 P002 Agreement No. P96 -156 IN WITNESS WHEREOF, each party hereto has executed this AGREEMENT by a duly authorized representative as of the date set forth above. COUNTY OF ORANGE DATE: BY- Chairman of the Board of Supervisors of Orange County, California CITY OF NEWPORT BEACH DATE: BY: City Manager ATTEST: City Clerk APPROVED AS TO FORM: 1-Vra City Attorney SIGNED AND CERTIFIED THAT A COPY OF APPROVED AS TO FORK: THIS DOCUMENT HAS BEEN DELIVERED TO LAURENCE K. WATSON THE CHAIRMAN OF THE BOARD COUNTY COUNSEL ORANGE COUNTY, CALIFORNIA Darlene J. Bloom Clerk of the Board of Supervisors of Orange County, California HMM:ms6110709523740 Attachment: Exhibit A BY: Deputy • -7- 4.