Loading...
HomeMy WebLinkAboutC-3102 - Seismic Retrofit for Balboa Theatre�EwPpRr CITY OF NEAT BEACH Hearin ate: COMMUNITY AND ECONOMIC DEVELOPMENT Agenda Item No.: V ,= PLANNING DEPARTMENT Staff Person: 33 o NEWPORT BOULEVARD NEWPORT BEACH. CA 92658 (714) 644-5200; FAX (74) 644 -5250 REPORT TO THE MAYOR AND CITY COUNCIL G -310 3- ( 38 May 12, 1997 4 Sharon Z. Wood (714) 644 -3222 E'! 1 He ::lTY Ct�l.i f4�li .I. C'F.F_ MAY 1 21997 51d'1�47 PROJECT: Agreement for Seismic Retrofit of Balboa Theater SUGGESTED ACTION: Approve and authorize City Manager to execute agreement This item has been continued from the City Council meeting of April 14, 1997, to allow for consideration by the full Council. The report for that meeting is included in the Council agenda packets, and describes the reasons for the agreement and its provisions. This report provides additional background on the Theater retrofit project. A seismic retrofit of the Balboa Theater was done in 1993 -94, to comply with State and City requirements for unreinforced masonry buildings. The City gave final approval on the project in May 1994, and removed the building from our inventory of hazardous buildings in June 1994. Since completion of the seismic retrofit project, the property was purchased by CJW, Inc., who began rehabilitating the building with the intent of leasing or selling it to the Balboa Performing Arts Theater Foundation. In the course of the rehabilitation work, it was discovered that not all of the work included in the approved plans for the earlier seismic retrofit had been completed. The new owner brought this to staff s attention, and an independent investigation was done. For the technical investigation, staff retained Willdan Associates, a firm that provides services in several southern California cities as contract building officials, plan checkers and building inspectors. After reviewing the City's records and conducting an inspection of the building, Willdan concluded that several components of the approved seismic retrofit project were not completed as shown on the original plans. These components, or alternatives approved in the building code, are required for the seismic safety of the building. The Assistant City Manager also conducted an internal investigation to determine how the Building Department's inspections failed to correct the variances from the plans. The conclusion was that the uncompleted work was not noted because the former property owner was reluctant to do the required seismic retrofit, and staff had to struggle to gain any compliance with the State and local laws. The project was complicated by the fact that the building permit expired and had to be reissued (to a second contractor) before the work started, and the actual construction was not done in a continuous fashion. A full set of plans may not have been on the job site for the inspector's reference on each occasion when an inspection took place. Most importantly, plans 0 0 for reuse of the building changed during the course of the project, changing the requirements for seismic protection. To ensure that this project was an exception to the usual practice and quality of City inspections on seismic retrofit projects, staff is rechecking other projects that were done to satisfy the same State and City laws. Despite these issues, as indicated in the report for April 14, 1997, staff continues to believe that the Balboa Theater is significant to both the history and the economic future of Balboa Village. In past years, the Theater was a key part of the vitality of the Village, and its reopening would help to stimulate new activity and interest in the immediate vicinity. For these reasons, and to assist the current owner and future users of the Theater to complete seismic work, staff is recommending that the City Council approve a grant of $50,000 from the Community Development Block Grant. SHARON L WOOD Assistant City Manager 1 Page 2 SUGGESTED ACTION: Approve and authorize City Manager to execute agreement C--3/0J,_ BACKGROUND The owner of the Balboa Theater, CJW Inc., has requested City assistance with rehabilitation of the structure, in particular with the seismic retrofit that is required prior to reopening the structure to the public. On August 12, 1996, the City Council placed the Balboa Theater on the Register of Historical Property. In making this determination, it was noted that the theater was constructed in 1927 and will be the oldest operating theater in Orange County when it reopens. Because of the theater's historical significance, staff believes it is an important structure to be preserved for the community. In addition, rehabilitation and reopening of the facility as a community theater is a project that can be a significant economic boost for the Balboa Village area. Without rehabilitation, the building could continue to sit vacant, in disrepair and a blight to the business district. The cost of the remaining seismic retrofit work has been estimated to range from $40,000 to $100,000. The property owner is currently negotiating sale of the Theater to the Balboa Performing Arts Theater Foundation, a non - profit community group, and City assistance with the seismic retrofit costs should result in a more feasible project for the Foundation. The project is an eligible activity for Community Development Block Grant (CDBG) funds, because of its location in a low /moderate income area and its historic significance. Funds are available from the 1996 -97 program year as a result of lower than expected expenditures for ADA compliance. HUD regulations allow the City to reprogram up to 10% of our allocation ($52,000) without a formal hearing and amendment process. AGREEMENT PROVISIONS The attached agreement provides that the City will grant up to $50,000 in CDBG funds to reimburse the property owner for costs that are directly related to seismic retrofit of the Theater to comply with Federal, State and local laws. The term of the agreement is until the owner has expended the grant, or until the property is transferred to a subsequent owner. Should transfer to mar CITY OF NEWT BEACH Hearil ate: April 14, 1997 4�Ea p. COMMUNITY AND ECONOMIC DEVELOPMENT Agenda Item No.: 10 n PLANNING DEPARTMENT Staff Person: Sharon Z. Wood �•,ron�r i5w NEWPORT BOULEVARD COUNCIL AE�G,� (714) 644 -3222 NEWPORT BEACH, CA 92658 644-32w; FAX (P 4) 644-325° /�E,��N'DA 0. I b l_ o (P4) — _ _ BY THE CITY COUNCIL i CITY OF NEWPORT BEACH REPORT TO THE MAYOR AND CITY COUNCILI i APR 2 8 W;] i' PROJECT: Agreement for Seismic Retrofit of Balboa Theater - — SUGGESTED ACTION: Approve and authorize City Manager to execute agreement C--3/0J,_ BACKGROUND The owner of the Balboa Theater, CJW Inc., has requested City assistance with rehabilitation of the structure, in particular with the seismic retrofit that is required prior to reopening the structure to the public. On August 12, 1996, the City Council placed the Balboa Theater on the Register of Historical Property. In making this determination, it was noted that the theater was constructed in 1927 and will be the oldest operating theater in Orange County when it reopens. Because of the theater's historical significance, staff believes it is an important structure to be preserved for the community. In addition, rehabilitation and reopening of the facility as a community theater is a project that can be a significant economic boost for the Balboa Village area. Without rehabilitation, the building could continue to sit vacant, in disrepair and a blight to the business district. The cost of the remaining seismic retrofit work has been estimated to range from $40,000 to $100,000. The property owner is currently negotiating sale of the Theater to the Balboa Performing Arts Theater Foundation, a non - profit community group, and City assistance with the seismic retrofit costs should result in a more feasible project for the Foundation. The project is an eligible activity for Community Development Block Grant (CDBG) funds, because of its location in a low /moderate income area and its historic significance. Funds are available from the 1996 -97 program year as a result of lower than expected expenditures for ADA compliance. HUD regulations allow the City to reprogram up to 10% of our allocation ($52,000) without a formal hearing and amendment process. AGREEMENT PROVISIONS The attached agreement provides that the City will grant up to $50,000 in CDBG funds to reimburse the property owner for costs that are directly related to seismic retrofit of the Theater to comply with Federal, State and local laws. The term of the agreement is until the owner has expended the grant, or until the property is transferred to a subsequent owner. Should transfer to 0 0 the Foundation, or any other subsequent owner, occur before the full grant amount is spent on seismic work, the City would have the balance available to assist that owner to complete the work, if that wire the City Council's desire. Interest in the agreement may not be transferred without the prior written consent of the City. The owner is required to indemnify and release the City from all ciaims related to the project, and to comply with all federal requirements associated with the CDBG program. The property owner has reviewed the agreement, and agreed to its provisions. SHARON Z. WOOD Assistant City Manager " Z& �� D40& Attachment Page 2 AGREEMENT FOR SEISMIC RETROFIT OF THE BALBOA THEATER This Agreement is entered into this day of , 1997, by and between THE CITY OF NEWPORT BEACH, a Municipal Corporation and Charter City of the State of California ( "City") and CJW Inc. ( "Owner"), and is made with reference to the following facts: A. City is entitled to receive Community Development Block Grant (CDBG) funds ( "federal funds ") from the United States Department of Housing and Urban Development ( "HUD ") pursuant to Title I of the Housing and Community Development Act of 1974 (42 U.S.C. 5301 M M.), as amended ( "Act ") and HUD Regulations, including the provisions of 24 C.F.R. Section 570 g1=. B. Owner holds title to the real property, including a theater and related improvements located at 707 East Balboa Blvd ( "Balboa Theater'). Owner proposes to make improvements to the Balboa Theater, including seismic retrofit and strengthening, necessary to comply with provisions of the Earthquake Hazard Reduction in Existing Building Ordinance (Chapter 15.07 of the Newport Beach Municipal Code ( "NBMC ")), the Uniform Building Code for Conservation and other relevant Federal, State and local laws ( "Seismic Improvements "). t E 0 C. The Balboa Theater is located within an area where at least fifty -one (51 %) percent of residents qualify as low or moderate income under applicable Federal and /or State standards. The purpose of the Seismic Improvements is to reopen the Balboa Theater to provide economic opportunity to persons of low and moderate income within the area of benefit as well as a center for community activities and recreation. D. The City Council has determined that a grant of up to fifty thousand dollars ($50,000) to Owner to pay for a portion of the Seismic Improvements to the Balboa Theater (grant) is consistent with the Act and HUD Regulations. E. Owner represents that it has the experience and expertise to, and shall, perform the Seismic Improvements and use the grant consistent with the Act, HUD Regulations, and the provisions of this Agreement. THEREFORE, in consideration of the respective and mutual covenants, terms and conditions in this Agreement, the Parties agree as follows: I OWNER'S OBLIGATIONS 1. Statement of Work and Use of Funds: Owner agrees to use the grant provided by City pursuant to this Agreement only to pay for some or all of the Seismic Improvements to the Balboa Theater necessary to comply with Federal, State and local laws, including, without limitation Chapter 15.07 NBMC, the Uniform - Building code, and 2 q 0 0 the Uniform Code for Building Conservation. 2. Bu et: Owner represents that the grant shall be used only to fund costs and expenses authorized by the Act, HUD Regulations, the CDBG Program and other relevant laws, rules and regulations. 3. Records and Reports: Owner shall keep records of the grant received from City pursuant to this Agreement and of all costs and expenses related to the Seismic Improvements for the term of the Agreement and for three (3) years after expiration of the Agreement. 4. Inspection of Records: City and the United States Government and /or their officers, agents or representatives shall have access to the records required to be maintained pursuant to Section 3 above for purposes of monitoring, auditing, and examining Owner's activities and performance pursuant to this Agreement, and the right to examine records of Owner's subcontractors and accountants with respect to compliance with this Agreement. 5. Other Program Requirements: Owner agrees to comply fully with all applicable Federal, State and local laws, rules and regulations, and all ordinances, rules and regulations enacted or issued by City. 6. Non- Discrimination Owner shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, age or handicap. Owner shall take positive steps to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, 3 0 0 religion, sex, national origin, age or handicap. For purposes of this Agreement, the r term employment shall include, without limitation, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training including apprenticeship. Owner agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this non - discrimination clause. Owner shall, in all solicitations or advertisements for employees, placed by or on behalf of Owner, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, age or handicap. Owner shall not discriminate on the basis of age in violation of any provision of the Age Discrimination Act of 1975, 42 USC Section 6101 Qj Ogq„ or with respect to any i otherwise qualified handicapped individual as provided in Section 504 of the Rehabilitation Act of 1973, 29 USC Section 794. 7. Term: The term of this Agreement shall commence on the date specified above and continue until Owner has expended the grant in accordance with the terms of this Agreement, or until the property is transferred to a subsequent Owner. B. Suspension and Termination: This Agreement may be terminated by City at any time before Owner incurs any obligations within the scope of Owner's performance under this Agreement. Thereafter, City may terminate this Agreement only in the event Owner violates any material term or condition of this Agreement, or if Owner fails to maintain a good faith effort to carry out the purpose of this Agreement. 4 0 9 In such event, City shall be entitled to reimbursement of any payments made by City to Owner to the extent such funds were not used for the purposes of this Agreement. II CITY'S OBLIGATIONS 1. Grant Amount: City shall pay to Owner from Federal funds, amounts expended by Owner in making Seismic Improvements to the Balboa Theater up to a maximum aggregate payment of fifty thousand dollars ($50,000). Payment shall be made to Owner pursuant to submission of invoices to City which describe the expenses for which reimbursement is sought and establish that the expenses qualify for funding through the grant as specified in this Agreement. City shall pay such invoice within thirty (30) days after receipt, provided City has determined that the expenses qualify for reimbursement and that Owner is in compliance with the terms and conditions of this Agreement. 2. Audit: City may include an audit of the account maintained by Owner pursuant to paragraph 1 above in City's annual audit of all Federal funds pursuant to Federal regulations found in Title 24 of the Code of Federal Regulations and other applicable Federal laws and regulations. III DRUG FREE WORKPLACE 1. Drug Free Rules: Owner shall comply with the Drug -Free Workplace Act, and shall make a good faith effort to continue to maintain a drug -free workplace, 5 r'11 • i including establishing a drug -free awareness program to inform employees about the dangers of drug abuse and the policy and penalties for drug abuse violations occurring in the workplace. Iv LOBBYING 1. Lobbying /Prohibition: No Federal appropriated funds shall be paid, by or on behalf of Owner, to any person for influencing or attempting to influence an officer, agent, representative or employee of any agency, a Member of Congress, an officer, agent, representative or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. 2. Disclosure: If any funds other than Federal appropriated funds have been paid or will be paid by Owner to any person for influencing or attempting to influence an officer, agent, representative or employee of any agency, a Member of Congress, and officer, agent, representative or employee of Congress or an officer, agent, representative, or employee of a Member of Congress in connection with this Federal contract, grant, loan or cooperative agreement, Owner shall complete and submit Standard Form -LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. 6 0 3. Inclusion: Owner shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. V NOTICES 1. Notices: Notices to the Parties shall, unless otherwise requested in writing, be either delivered personally or sent by U.S. Mail, postage prepaid, and addressed as follows: To City: City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658 -8915 Attn: Sharon Wood, Assistant City Manager To Owner: CJW Inc. 104 Via Yella Newport Beach, CA 92663 Attn: John Wortmann VI ASSIGNABILITY 1. ssignment: Owner shall not assign or transfer any interest in this L' 9 • • Agreement, whether by assignment or novation, without the prior written consent of r City; provided, however, that claims for money due or to become due Owner from City under this Agreement may be assigned to a bank, trust company or other financial institution, or to a trustee in bankruptcy, without such approval. Notice of any such assignment or transfer shall be promptly furnished to City. VII RELEASE & INDEMNIFICATION 1. Indemnification: Owner shall indemnify and save harmless City, its officers, agents, representatives and employees, from and against any and all damages to property or injuries to or death of any person or persons, including property and employees, officers, representatives or agents of City, and shall defend, indemnify and save harmless City, its officers, agents, representatives and employees, from and against any and all claims, demands, suits, actions or proceedings of any kind or nature resulting from or arising out of the acts or omissions of Owner, its employees or sub - contractors in the performance of this Agreement or the use of the grant. 2. Release: Owner shall release and forever discharge City, and its officers, agents, representatives and employees (Releasees) of and from any and all claims, acts, damages, costs, attorneys fees, demands, causes of action or liabilities, which Owner, or Owner's predecessors, employees, agents, officers, partners or representatives may have that arise out of, or are in any way related, to any act or omission on the part of Releasees occurring prior to the date of this Agreement. Owner expressly waives the provisions of Section 1542 of the Civil Code of the State of 8 California which reads as follows: " A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release which if known by him must have materially affected this settlement with the debtor." Owner acknowledges reading, discussing with legal counsel, and fully understanding the significance of Section 1542 of the Civil Code. III CODE OF CONDUCT I. Conduct: Owner agrees that no officer, representative, employee, agent or assign of City having direct or indirect control of Federal funds granted to City shall serve as an officer of Owner. Further, any conflict or potential conflict of interest of any officer of Owner shall be fully disclosed prior to the execution of this Agreement and shall be attached to and become a part hereof. IX INSURANCE 1. Workers Compensation Insurance: Owner shall furnish City with an insurance certificate from its workers' compensation insurance carrier certifying that it carries such insurance and the policy shall not be canceled nor the coverage reduced except upon ten (10) days prior written notice to City. 0 0 2. General Liability Insurance: Owner shall, prior to exercising any right or performing any obligation pursuant to this Agreement, obtain, and maintain for the term of this Agreement, a policy or policies of general liability insurance, satisfactory to City naming City, its officers, agents, representatives and employees as insured or additional insured, which provides coverage not less than that provided against liability for any and all claims and suits for damages or injuries to persons or property resulting from or arising out of operations of Owner, which insurance shall provide coverage for both bodily injury and property damage in not less than the following minimum amounts: One million dollars ($1,000,000.00) combined single limit, or its equivalent. Said policy shall also contain a provision that no termination, cancellation or change of coverage of insured or additional insured shall be effective until thirty (30) days notice thereof has been given in writing to City. Owner shall give City prompt and timely written notice of any claim made or suit instituted. Owner shall procure and maintain, at its own cost and expense, any additional kinds and amounts of insurance, which, in its own judgment, may be necessary for its proper protection in the construction of Seismic Improvements. X EXCLUSIVITY AND AMENDMENT OF AGREEMENT 1. Amendment: This Agreement supersedes any and all other agreements either oral or in writing between the Parties hereto with respect to the subject matter and contains all the covenants and agreements between the Parties with respect to the 10 p- subject matter in any manner whatsoever. Each Party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any Party, or anyone acting on behalf of any Party, which are not embodied herein, and that no other agreement or amendment hereto shall be effective unless executed in writing and signed by both City and Owner. XI LAWS GOVERNING THIS AGREEMENT 1. Applicable Law: This Agreement shall be governed by and construed in accordance with the laws of the State of California, and all applicable Federal statutes and regulations as amended. XII VALIDITY 1. Severability: If any portion of this Agreement is held by a court or arbitrator of competent jurisdiction to be invalid, void and unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated. tt 0 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year first above written. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, A Municipal Corporation Robert H. Burnham, City Attorney for the City of Newport Beach ATTEST: City Clerk for the City of Newport Beach F Acat \debbi e\ag\balboa. doc 04 -01 -97 Kevin Murphy, City Manager for the City of Newport Beach Title /Owner 12 �E.yvpRJ CITY OF NEWT BEACH Hearin te: April 14, 1997 p i COMMUNITY AND ECONOMIC DEVELOPMENT Agenda Item No.: 10 = PLANNING DEPARTMENT Staff Person: Sharon Z. Wood • q�« 35 o NEWPORT BOULEVARD (714) 644 -3222 NEWPORT BEACH, CA 92658 (714) 644-5; FAX (P4) 644-5250 i REPORT TO THE MAYOR AND CITY COUNCIL I APR 4 1997 PROJECT: Agreement for Seismic Retrofit of Balboa Theater SUGGESTED ACTION: Approve and authorize City Manager to execute agreement BACKGROUND The owner of the Balboa Theater, CJW Inc., has requested City assistance with rehabilitation of the structure, in particular with the seismic retrofit that is required prior to reopening the structure to the public. On August 12, 1996, the City Council placed the Balboa Theater on the Register . of Historical Property. In making this determination, it was noted that the theater was constructed in 1927 and will be the oldest operating theater in Orange County when it reopens. Because of the theater's historical significance, staff believes it is an important structure to be preserved for the community. In addition, rehabilitation and reopening of the facility as a community theater is a project that can be a significant economic boost for the Balboa Village area. Without rehabilitation, the building could continue to sit vacant, in disrepair and a blight to the business district. The cost of the remaining seismic retrofit work has been estimated to range from $40,000 to $100,000. The property owner is currently negotiating sale of the Theater to the Balboa Performing Arts Theater Foundation, a non - profit community group, and City assistance with the seismic retrofit costs should result in a more feasible project for the Foundation. The project is an eligible activity for Community Development Block Grant (CDBG) funds, because of its location in a low /moderate income area and its historic significance. Funds are available from the 1996 -97 program year as a result of lower than expected expenditures for ADA compliance. HUD regulations allow the City to reprogram up to 10% of our allocation ($52,000) without a formal hearing and amendment process. AGREEMENT PROVISIONS . The attached agreement provides that the City will grant up to $50,000 in CDBG funds to reimburse the property owner for costs that are directly related to seismic retrofit of the Theater to comply with Federal, State and local laws. The term of the agreement is until the owner has expended the grant, or until the property is transferred to a subsequent owner. Should transfer to 0 the Foundation, or any other subsequent owner, occur before the full grant amount is spent on seismic work, the City would have the balance available to assist that owner to complete the work, if that were the City Council's desire. Interest in the agreement may not be transferred . without the prior written consent of the City. The owner is required to indemnify and release the City from all claims related to the project, and to comply with all federal requirements associated with the CDBG program. The:property owner has reviewed the agreement, and agreed to its provisions. SHARON Z. WOOD Assistant City Manager Attachment Page 2 • • 0 0 AGREEMENT • FOR SEISMIC RETROFIT OF THE BALBOA THEATER This Agreement is entered into this day of , 1997, by and between THE CITY OF NEWPORT BEACH, a Municipal Corporation and Charter City of the State of California ( "City ") and CJW Inc. ( "Owner"), and is made with reference to the following facts: A. City is entitled to receive Community Development Block Grant (CDBG) funds ( "federal funds ") from the United States Department of Housing and Urban Development ( "HUD ") pursuant to Title I of the Housing and Community Development • Act of 1974 (42 U.S.C. 5301 et M.), as amended ( "Act ") and HUD Regulations, including the provisions of 24 C.F.R. Section 570 91=. B. Owner holds title to the real property, including a theater and related improvements located at 707 East Balboa Blvd ( "Balboa Theater"). Owner proposes to make improvements to the Balboa Theater, including seismic retrofit and strengthening, necessary to comply with provisions of the Earthquake Hazard Reduction in Existing Building Ordinance (Chapter 15.07 of the Newport Beach Municipal Code ( "NBMC ")), the Uniform Building Code for Conservation and other relevant Federal, State and local laws ( "Seismic Improvements "). 1 0 E C. The Balboa Theater is located within an area where at least fifty -one • (51 %) percent of residents qualify as low or moderate income under applicable Federal and /or State standards. The purpose of the Seismic Improvements is to reopen the Balboa Theater to provide economic opportunity to persons of low and moderate income within the area of benefit as well as a center for community activities and recreation. D. The City Council has determined that a grant of up to fifty thousand dollars ($50,000) to Owner to pay for a portion of the Seismic Improvements to the Balboa Theater (grant) is consistent with the Act and HUD Regulations. E. Owner represents that it has the experience and expertise to,. and shall, perform the Seismic Improvements and use the grant consistent with the Act, HUD • Regulations, and the provisions of this Agreement. THEREFORE, in consideration of the respective and mutual covenants, terms and conditions in this Agreement, the Parties agree as follows: I OWNER'S OBLIGATIONS 1. Statement of Work and Use of Funds: Owner agrees to use the grant provided by City pursuant to this Agreement only to pay for some or all of the Seismic Improvements to the Balboa Theater necessary to comply with Federal, State and local laws, including, without limitation Chapter 15.07 NBMC, the Uniform-Building code, and 2 • i+ the Uniform Code for Building Conservation. 2. Budget: Owner represents that the grant shall be used only to fund costs and expenses authorized by the Act, HUD Regulations, the CDBG Program and other relevant laws, rules and regulations. 3. Records and Reports• Owner shall keep records of the grant received from City pursuant to this Agreement and of all costs and expenses related to the Seismic Improvements for the term of the Agreement and for three (3) years after expiration of the Agreement. 4. Inspection of Records: City and the United States Government and /or their officers, agents or representatives shall have access to the records required to be maintained pursuant to Section 3 above for purposes of monitoring, auditing, and 0 examining Owner's activities and performance pursuant to this Agreement, and the right to examine records of Owner's subcontractors and accountants with respect to compliance with this Agreement. 5. Other Program Requirements, Owner agrees to comply fully with all applicable Federal, State and local laws, rules and regulations, and all ordinances, rules and regulations enacted or issued by City. 6. Non - Discrimination: Owner shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, age or handicap. Owner shall take positive steps to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, �l 0 0 religion, sex, national origin, age or handicap. For purposes of this Agreement, the term employment shall include, without limitation, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training including apprenticeship. Owner agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this non - discrimination clause. Owner shall, in all solicitations or advertisements for employees, placed by or on behalf of Owner, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, age or handicap. Owner shall not discriminate on the basis of age in violation of any provision of the Age Discrimination Act of 1975, 42 USC Section 6101 gt sea•, or with respect to any otherwise qualified handicapped individual as provided in Section 504 of the Rehabilitation Act of 1973, 29 USC Section 794. 7. Term: The term of this Agreement shall commence on the date specified above and continue until Owner has expended the grant in accordance with the terms of this Agreement, or until the property is transferred to a subsequent Owner. 8. Suspension and Termination: This Agreement may be terminated by City at any time before Owner incurs any obligations within the scope of Owner's performance under this Agreement. Thereafter, City may terminate this Agreement only in the event Owner violates any material term or condition of this Agreement, or if Owner fails to maintain a good faith effort to carry out the purpose of this Agreement. W_J L 11 0 In such event, City shall be entitled to reimbursement of any payments made by City to Owner to the extent such funds were not used for the purposes of this Agreement. II CITY'S OBLIGATIONS 1. Grant Amount: City shall pay to Owner from Federal funds, amounts expended by Owner in making Seismic Improvements to the Balboa Theater up to a maximum aggregate payment of fifty thousand dollars ($50,000). Payment shall be made to Owner pursuant to submission of invoices to City which describe the expenses for which reimbursement is sought and establish that the expenses qualify for funding through the grant as specified in this Agreement. City shall pay such invoice within thirty (30) days after receipt, provided City has determined that the expenses qualify for reimbursement and that Owner is in compliance with the terms and conditions of this Agreement. 2. AM-0: City may include an audit of the account maintained by Owner pursuant to paragraph 1 above in City's annual audit of all Federal funds pursuant to Federal regulations found in Title 24 of the Code of Federal Regulations and other applicable Federal laws and regulations. III DRUG FREE WORKPLACE 1. Drug Free ules: Owner shall comply with the Drug -Free Workplace Act, and shall make a good faith effort to continue to maintain a drug -free workplace, 5 rI 0 including establishing a drug -free awareness program to inform employees about the dangers of drug abuse and the policy and penalties for drug abuse violations occurring in the workplace. IV LOBBYING 1. Lobbying /Prohibition: No Federal appropriated funds shall be paid, by or on behalf of Owner, to any person for influencing or attempting to influence an officer, agent, representative or employee of any agency, a Member of Congress, an officer, agent, representative or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of is any Federal contract, grant, loan, or cooperative agreement. 2. Disclosure: If any funds other than Federal appropriated funds have been paid or will be paid by Owner to any person for influencing or attempting to influence an officer, agent, representative or employee of any agency, a Member of Congress, and officer, agent, representative or employee of Congress or an officer, agent, representative, or employee of a Member of Congress in connection with this Federal contract, grant, loan or cooperative agreement, Owner shall complete and submit Standard Form -LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. s 0 0 3. Inclusion: Owner shall require that the language of this certification be • included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. V NOTICES 1. Notices: Notices to the Parties shall, unless otherwise requested in writing, be either delivered personally or sent by U.S. Mail, postage prepaid, and addressed as follows: To City: City of Newport Beach P.O. Box 1768 • Newport Beach, CA 92658 -8915 Attn: Sharon Wood, Assistant City Manager To Owner: CJW Inc. 104 Via Yella Newport Beach, CA 92663 Attn: John Wortmann VI ASSIGNABILITY 1. Assignment: Owner shall not assign or transfer any interest in this 7 I 0 0 Agreement, whether by assignment or novation, without the prior written consent of City; provided, however, that claims for money due or to become due Owner from City • under this Agreement may be assigned to a bank, trust company or other financial institution, or to a trustee in bankruptcy, without such approval. Notice of any such assignment or transfer shall be promptly furnished to City. VII RELEASE & INDEMNIFICATION 1. Indemnification: Owner shall indemnify and save harmless City, its officers, agents, representatives and employees, from and against any and all damages to property or injuries to or death of any person or persons, including property and employees, officers, representatives or agents of City, and shall defend, indemnify and save harmless City, its officers, agents, representatives and employees, from and . against any and all claims, demands, suits, actions or proceedings of any kind or nature resulting from or arising out of the acts or omissions of Owner, its employees or sub - contractors in the performance of this Agreement or the use of the grant. 2. Release: Owner shall release and forever discharge City, and its officers, agents, representatives and employees (Releasees) of and from any and all claims, acts, damages, costs, attorneys fees, demands, causes of action or liabilities, which Owner, or Owner's predecessors, employees, agents, officers, partners or representatives may have that arise out of, or are in any way related, to any act or omission on the part of Releasees occurring prior to the date of this Agreement. Owner expressly waives the provisions of Section 1542 of the Civil Code of the State of 8 • California which reads as follows: • " A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release which if known by him must have materially affected this settlement with the debtor." Owner acknowledges reading, discussing with legal counsel, and fully understanding the significance of Section 1542 of the Civil Code. 111 CODE OF CONDUCT I. Conduct: Owner agrees that no officer, representative, employee, agent or • assign of City having direct or indirect control of Federal funds granted to City shall serve as an officer of Owner. Further, any conflict or potential conflict of interest of any officer of Owner shall be fully disclosed prior to the execution of this Agreement and shall be attached to and become a part hereof. IX INSURANCE 1. Workers Compensation Insurance: Owner shall furnish City with an insurance certificate from its workers' compensation insurance carrier certifying that it carries such insurance and the policy shall not be canceled nor the coverage reduced except upon ten (10) days prior written notice to City. 9 0 0 2. General Liability Insurance: Owner shall, prior to exercising any right or performing any obligation pursuant to this Agreement, obtain, and maintain for the term • of this Agreement, a policy or policies of general liability insurance, satisfactory to City naming City, its officers, agents, representatives and employees as insured or additional insured, which provides coverage not less than that provided against liability for any and all claims and suits for damages or injuries to persons or property resulting from or arising out of operations of Owner, which insurance shall provide coverage for both bodily injury and property damage in not less than the following minimum amounts: One million dollars ($1,000,000.00) combined single limit, or its equivalent. Said policy shall also contain a provision that no termination, cancellation or change of coverage of insured or additional insured shall be effective until thirty (30) days notice thereof has been given in writing to City. Owner shall give City prompt and timely • written notice of any claim made or suit instituted. Owner shall procure and maintain, at its own cost and expense, any additional kinds and amounts of insurance, which, in its own judgment, may be necessary for its proper protection in the construction of Seismic Improvements. X EXCLUSIVITY AND AMENDMENT OF AGREEMENT 1. Amendment: This Agreement supersedes any and all other agreements either oral or in writing between the Parties hereto with respect to the subject matter and contains all the covenants and agreements between the Parties with respect to the 10 • subject matter in any manner whatsoever. Each Party to this Agreement acknowledges • that no representations, inducements, promises or agreements, orally or otherwise, have been made by any Party, or anyone acting on behalf of any Party, which are not embodied herein, and that no other agreement or amendment hereto shall be effective unless executed in writing and signed by both City and Owner. XI LAWS GOVERNING THIS AGREEMENT 1. Applicable Law: This Agreement shall be governed by and construed in accordance with the laws of the State of California, and all applicable Federal statutes and regulations as amended. XII VALIDITY 1. Severability: If any portion of this Agreement is held by a court or arbitrator of competent jurisdiction to be invalid, void and unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated. • 11 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year first above written. APPROVED AS TO FORM Robert H. Burnham, City Attorney for the City of Newport Beach ATTEST: City Clerk for the City of Newport Beach FAcat \debbie\ag\batboa.doc 04 -01 -97 CITY OF NEWPORT BEACH, A Municipal Corporation Kevin Murphy, City Manager for the City of Newport Beach CJW INC. Title /Owner • 12 t • I�