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]
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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.