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HomeMy WebLinkAboutC-4993 - Grant Agreement FY 11-12GRANT AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND THE BALBOA ISLAND MUSEUM AND HISTORICAL SOCIETY This Grant Agreement ( "Agreement") is entered into this 18th day of October, C 2011, by and between the City of Newport Beach, a California municipal corporation and Charter City ( "City "), and the Balboa Island Museum and Historical Society, a California nonprofit corporation, located at 331 Marine Avenue, Balboa Island, CA 92662 ( "Grantee "). City and Grantee are at times individually referred to as "Party" and collectively as "Parties" herein. RECITALS A. It is the policy of the City Council that the City's budget specifically allow the City Council to direct revenue towards non -profit agencies, community groups, community events, or enhancement projects with worthy projects or programs which the City Council deems beneficial to resident's quality of life. B. Grantee requested a grant from the City for $10,000 ( "Grant Proposal "). C. The City Council determined the Grant Proposal is for a worthy project that will benefit the City's resident's quality of fife. D. The City Council approved a grant in the amount of Ten Thousand and 00/100 dollars ($10,000) ( "Grant Funds ") to Grantee pursuant to certain conditions regarding expenditure, reporting, and accounting requirements. NOW, THEREFORE, the Parties agree as follows: 1. GRANT City awards to Grantee Grant Funds in the amount of Ten Thousand and 00/100 dollars ($10,000) as requested by Grantee to be used for the operations of the Balboa Island Museum and Historical Society, or as authorized by the City Council. Grant Funds shall be disbursed by City to Grantee as follows (select one): a At the time of execution of this Agreement. ❑ On or before _ day of , 20_ ❑ In four (4) equal installments on the following dates: (a) (b) (c) ; and (d) 2. TERM The term of this Agreement shall commence on the date first written above ( "Effective Date ") and shall continue in full force and effect until June 30, 2012, unless terminated earlier as provided herein. 3. RESTRICTIONS ON USE OF FUNDS The Grant Funds are subject to the following expenditure conditions ( "Approved Uses "): (a) The Grant Funds shall be expended solely for the purposes provided in Exhibit "A'; (b) The Grant Funds shall not be used for any activity that would violate City, state or federal statutory or decisional law such as regulations affecting non -profit or tax exempt organizations exempt from taxation pursuant to Section 501(c)(3) of the Internal Revenue Code; and Grantee further warrants to City that the Grant Funds will be spent solely for the Approved Uses and the Grant Funds shall be used by Grantee during this Agreements term otherwise the Grant Funds shall be returned to City, as provided in Section 5 below. 4. REPORTING AND ACCOUNTING REQUIRMENTS (a) At all times during the term of this Agreement, Grantee shall maintain true, proper, and complete books, records, and accounts (collectively, "Books and Records ") in which shall be entered fully and accurately all transactions taken with respect to the operations of Grantee under the Grant Proposal and the expenditure of the Grant Funds. Grantee shall maintain the Books and Records in accordance with Generally Accepted Accounting Principles. (b) City reserves the right to designate its own employee representative(s) or its contracted representative(s) with a Certified Public Accounting firm who shall have the right to audit Grantee's accounting procedures and internal controls of Grantee's financial systems as they relate to the Grant Proposal and to examine any cost, revenue, payment, claim, other records or supporting documentation resulting from any items set forth in this Agreement. Any such audit(s) shall be undertaken by City or its representative(s) at mutually agreed upon reasonable times and in conformance with generally accepted auditing standards. Grantee agrees to fully cooperate with any such audit(s). This right to audit shall extend during the length of this Agreement and for a period of three (3) years or longer, if required by law, following the date of any Grant Funds tendered under this Agreement. Grantee agrees to Grant Agreement Page 2 retain all necessary records /documentation for the entire length of this audit period. (c) Grantee shall, on an annual basis during the term of this Agreement, furnish the City with a Balance Sheet and Income Statement describing the receipt and disbursement activities of Grantee with respect to the Grant Funds. In its sole and absolute discretion the City may also require Grantee to submit: (i) quarterly check registers and descriptions of each disbursement; (ii) budget -to- actual - results; and (iii) a statement of position describing the assets and liabilities of Grantee. All reports shall be due to the City no later than forty -five (45) days following the end of the fiscal year ending June 30, 2012. In the event that an independent audit is conducted, Grantee shall forward a copy of the audited report to the City for review, including any Management Letter, Report on Internal Controls, or Reportable Conditions letter generated during the course of the audit. (d) Grantee agrees to exercise prudent financial management processes including proper oversight of all assets, budget preparation, and timely reporting including budget - to-actual- comparisons. (e) All Approved Uses shall be performed by Grantee or under Grantee's supervision. Grantee represents that it possesses the professional and technical skills required to perform the services required by this Agreement, and that it will perform all services with a standard of care and in a manner commensurate with the community professional standards. S. USE OF GRANT FUNDS The Grant Funds shall be used solely by Grantee for the Approved Uses and for no other use. In the event that the Grant Funds are not used for the Approved Uses or are not expended by or before June 30, 2012, Grantee shall notify the City in writing, and shall be obligated to return the Grant Funds to City within thirty (30) days. 6. INDEMNIFICATION To the fullest extent permitted by law, Grantee shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to this Agreement (including the negligent and /or willful acts, errors and /or omissions of Grantee, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Grant Agreement Page 3 Notwithstanding the foregoing, nothing herein shall be construed to require Grantee to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Grantee. 7. GRANTEEINDEPENDENCE In the performance of this Agreement, the Grantee, and the agents and employees of Grantee, shall act in an independent capacity and are not officers, employees or agents of the City. The manner and means of performing the Approved Uses are under the control of Grantee, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Grantee or any of Grantee's employees or agents, to be the agents or employees of City. Grantee shall have the responsibility for and control over the means of performing the Approved Uses, provided that Grantee is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Grantee as to the details of the performance or to exercise a measure of control over Grantee shall mean only that Grantee shall follow the desires of City with respect to the results of the Approved Uses. 8. PROHIBITION AGAINST TRANSFERS Grantee shall not assign, sublease, hypothecate or transfer this Agreement or any of the services to be performed under this Agreement, directly or indirectly, by operation of law or otherwise without prior written consent of City. Any attempt to do so without written consent of City shall be null and void. 9. NOTICES All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered personally or on the third business day after the deposit thereof in the United States mail, postage prepaid, first class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Grantee to City shall be addressed to the City at: Attn: City Manager City of Newport Beach 3300 Newport Boulevard P.O. Box 1768 Newport Beach, CA 92658 -8915 (949) 644 -3000; Fax (949) 644 -3020 All notices, demands, requests or approvals from City to Grantee shall be addressed to Grantee at: Grant Agreement Page 4 Balboa Island Museum & Historical Society 331 Marine Avenue Balboa Island, CA 92662 10. TERMINATION (a) Termination for Cause. Grantee shall be in default if Grantee fails or refuses to perform any duty required by the Agreement or performs in a manner inconsistent with the terms, conditions and restrictions in this Agreement. In such event, City shall give Grantee, thirty (30) days written notice to cure, if the default can be cured and City shall be entitled to terminate this Agreement if Grantee has not cured the default within the thirty (30) day cure period. City shall be entitled to immediately terminate this Agreement if the default cannot be cured through corrective action. If terminated for cause, Grant Funds shall be returned to the City pursuant to Section 5. This Agreement is made on an annual basis, and as such is subject to non - renewal at its termination. (b) Termination without Cause. City may terminate this Agreement at anytime with or without cause upon seven (7) days written notice to Grantee, any remaining Grant Funds in Grantee's possession at the time of termination shall be returned to City pursuant to Section 5. (c) Specific Performance. Grantee agrees that the City has the legal right, and all necessary conditions have been satisfied, to specifically enforce Grantee's obligations pursuant to this Agreement. 11. WAIVER A waiver by either Party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 12. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 13. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. Grant Agreement Page 5 14. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Grantee and the City and approved as to form by the City Attorney. 15. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 16. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 17. EQUAL OPPORTUNITY EMPLOYMENT Grantee represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 18. COMPLIANCE WITH ALL LAWS Grantee shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. 19. NO ATTORNEYS' FEES In the event of any legal dispute arising out of this Agreement the prevailing Party shall not be entitled to attorneys' fees. [SIGNATURES ON FOLLOWING PAGE] Grant Agreement Page 6 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first above written. APPROVED AS TO FORM: OFFICEOFT l�Y ATTORNEY By: Michael Torres, Deputy City Attorney ATTEST: F By: A 41A� ��_ Leilani Brown, City Clerk CITY OF NEWPORT BEACH, a California municipal corporation By. C_ K:��n P, Da Kiff, City Manager GRANTEE: BALBOA ISLAND MUSEUM AND HISTORICAL SOCIETY, A California nonprofit corporation By: (Cor orate Officer) Title: President Print Name: Sharon L. Lambert \' By: r� (Financial Officer) Title: Treasurer <rFc1X��' Print Name: Robert B. Lambert Attachment: Exhibit "A" Grant Proposal [END OF SIGNATURES] Fm'Cc,vi^:F33�'�Hi:Fi.'Ts3'4:3�r"3F _>..,..�sc_-�`".�3.;a=a.R�� Z.'L4:r's4e.tF3R 3:;V ,r.-�'?s.�3.., :•-. —::9'v.�+i'�=�"�e�".F.+Y.M1h.??i��4iAY�c3�az::':ri-S S�ie'cite�i`�u �1X;Tm4F .�sXl-�:�kS3��i,L3 a�a:���iW�' Grant Agreement Page 7 EXHIBIT A Grant Funds shall be expended solely for the operations of the Balboa Island Museum and Historical Society. No Grant Funds may be used to fund any political activities.