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GRANT AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH AND
BALBOA ANGLING CLUB
This Grant Agreement ("Agreement") is entered into this 29th day of September,
2015 ("Effective Date"), by and between the City of Newport Beach, a California
municipal corporation and Charter City ("City"), and BALBOA ANGLING CLUB, a
California nonprofit corporation located at 200 A Street, Newport Beach, California
92661 ("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 allows 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 residents' quality of life.
B. Grantee requested a grant from the City for repairs to the structural foundation of
the Balboa Angling Club building ("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 life.
D. The City Council approved a one-to-one matching maintenance fund grant in the
amount of Forty Thousand Dollars ("Grant Funds") to Grantee pursuant to
certain conditions regarding expenditure, reporting, and accounting
requirements.
NOW, THEREFORE, the Parties agree as follows:
1. GRANT
1.1. On April 28, 2015, the City Council awarded to Grantee Grant Funds up to,
but not exceeding an amount of Forty Thousand Dollars and 00/100 ($40,000.00).
1.2. Grant Funds shall be disbursed by City to Grantee upon verification that
matching funds for repairs have been raised by Grantee.
2. TERM
The term of this Agreement shall commence on the Effective Date and shall
continue in full force and effect until June 30, 2016, unless terminated earlier as
provided herein.
3. RESTRICTIONS ON USE OF FUNDS
3.1. The Grant Funds are subject to the following expenditure conditions
("Approved Uses'):
BALBOA ANGLING CLUB Page 1
3.1.1. The Grant Funds shall be expended solely for the purposes
provided in Exhibit A, attached hereto and incorporated herein by reference,-
3.1.2,
eference;
3.1.2. 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
3.2. 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
Agreement's term otherwise the Grant Funds shall be returned to City, as provided in
Section 5 below.
4. REPORTING AND ACCOUNTING REQUIREMENTS
4.1. 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.
4.2. If the Grantee has been audited by an independent auditor or has been the
subject of a compliance audit/examination by a grantee or regulatory agency during the
past three years, audit reports and management letters indicating compliance violations,
fraud, illegal acts, material weaknesses in internal control structure or reportable
conditions, in connection with such audits shall be delivered to the City thirty (30) days
prior to the effective date of this agreement. If no audits or events as described above
have occurred during this period, the Grantee shall provide City a written assertion that
no audits or similar examinations have occurred during the three (3) year period and an
assertion that the Grantee is not aware of any events or conditions, described above, or
other information that might reasonable impact City's decision to fund the grant as
requested.
4.3. 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).
4.4. 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 retain all necessary
records/documentation for the entire length of this audit period.
BALBOA ANGLING CLUB Page 2
4.5. Grantee shall, upon conclusion of the event, 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: (1) quarterly check registers and descriptions of
each disbursement; (ii) budget -to -actual -results; and (iii) a statement of position
describing the assets and liabilities associated with the Grant event. All reports,
including a post -event evaluation, shall be due to the City no later than forty-five (45)
days following the conclusion of the event. 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.
4.6. Grantee agrees to exercise prudent and reasonable financial management
processes including proper oversight of all assets, budget preparation, and timely
reporting including budget -to -actual -comparisons.
4.7. 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.
4.8. If Grantee has supported Political Action Committees(s) (PACs) during the
past three (3) years, the Grantee shall hire an independent auditor to perform limited,
agreed-upon test work procedures to provide City assurance that City sponsored event
profits did not subsidize the funding of Political Action Committees (PACs) and event
proceeds were adequately segregated from funds used to support PACs. Agreed upon
procedures may include a review of a detail list of the past three (3) years of PAC
contributions and expenditures, including:
a. An identifying donor number, date and amount of each reported
contribution; and
b. A detail of expenditures sufficient enough to determine that the
expenditures were solely for PAC -related expenses; and
c. Any retained earnings or fund balance at the end of each fiscal year.
Substantive documentation for the contribution and expenditure should be available
upon request. City shall approve the agreed-upon test work procedures prior to the
commencement of fieldwork.
5. 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, 2016, Grantee shall notify the City in writing, and
shall be obligated to return the Grant Funds to City within thirty (30) days.
BALBOA ANGLING CLUB Page 3
6. INDEMNIFICATION
6A. 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).
6.2. 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. GRANTEE INDEPENDENCE
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 renders this Agreement null and void.
BALBOA ANGLING CLUB Page 4
9. NOTICES
9.1. 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.
9.2. All notices, demands, requests or approvals from Grantee to City shall be
addressed to the City at:
Attn: City Manager
City of Newport Beach
100 Civic Center Drive
P.O. Box 1768
Newport Beach, CA 92658-8915
9.3. All notices, demands, requests or approvals from City to Grantee shall be
addressed to Grantee at:
Attn: David Elm
BALBOA ANGLING CLUB
200 A Street
Newport Beach, CA 92661
10. TERMINATION
10.1. 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, unexpended 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.
10.2. 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.
10.3. 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. PREVAILING WAGES
Pursuant to the applicable provisions of the Labor Code of the State of California,
not less than the general prevailing rate of per diem wages including legal holidays and
BALBOA ANGLING CLUB Page 5
overtime Work for each craft or type of workman needed to execute the work
contemplated under the Agreement shall be paid to all workmen employed on the work
to be done according to the Agreement by the contractor and any subcontractor. In
accordance with the California Labor Code (Sections 1770 et seq.), the Director of
Industrial Relations has ascertained the general prevailing rate of per diem wages in the
locality in which the work is to be performed for each craft, classification, or type of
workman or mechanic needed to execute the Agreement. A copy of said determination
is available by calling the prevailing wage hotline number (415) 703-4774, and
requesting one from the Department of Industrial Relations. The contractor is required
to obtain the wage determinations from the Department of Industrial Relations and post
at the job site the prevailing rate or per diem wages. It shall be the obligation of the
contractor or any subcontractor under him/her to comply with all State of California labor
laws, rules and regulations and the parties agree that the City shall not be liable for any
violation thereof.
12. STANDARD PROVISIONS
12.1. Recitals. City and Grantee acknowledge that the above Recitals are true and
correct and are hereby incorporated by reference into this Agreement.
12.2. 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.
12.3. 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.
12.4. 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.
12.5. Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Grant Proposal or any other
attachments attached hereto, the terms of this Agreement shall govern.
12.6. 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.
12.7. Amendments. This Agreement may be modified or amended only by a
written document executed by both Grantee and City and approved as to form by the
City Attorney.
BALBOA ANGLING CLUB Page 6
12.8. Severabilitv. 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.
12.9. 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, State of California.
12.10, Equal Opportunity Employment. Grantee represents that it is an equal
opportunity employer and it shall not discriminate against any contractor, employee or
applicant for employment because of race, religion, color, national origin, handicap,
ancestry, sex or age or any other impermissible basis under law.
12.11. No Attorney's Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorney's fees.
12.12. Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one and the same instrument.
[SIGNATURES ON NEXT PAGE]
BALBOA ANGLING CLUB Page 7
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY AT O NAY'S OFFICE
Date:
By:
Aaron C. Harp (AM oRitvliv-
City Attorney
ATTEST:
Date: %b. �,(�•�j
BY: AIJ- 6e,--
Leilani
I. Brown
City Clerk -dwwffivft�
CITY OF NEWPORT BEACH,
A California municipal corporation
Date: [.J kms. J !S
By: 2
Dave
City Manager
GRANTEE: BALBOA ANGLING CLUB, a
Cal
ifor ' no p of}t corporation
Date:/
BY: _tet f
Dave Elm
President
Date: 944 3 /—,')O K��Z--1
IN
Attachment: Exhibit A: Grant Proposal
[END OF SIGNATURES]
cAr, l U hir5
BALBOA ANGLING CLUB Page 8
Exhibit A
GRANT PROPOSAL
Grantee shall enter into a separate agreement for the following improvements: All labor,
material, tooling, and equipment to replace the wood caps on the pilings and joists,
including:
Estimate:
1. Furnish, fabricate, and galvanize metal channel:
2. Furnish all timber, hardware, tooling and mobilization:
3. Remove and replace pile caps and purlins above piles
No.'s 1 through 12:
4. Remove and replace purlin No. 8; remove and replace
pile caps and purlins above No. 13, No. 14, No. 15, and
No. 16; and drill and mount channel on piles No.'s 1 through 16,
5. Remove and dispose of two (2) 12" x TT -piles at end of pier
(No. 15 and No. 16); and furnish and install two (2) new 12" x 7'
concrete T -piles at end of pier:
6. Remove and dispose of two (2) 12" piles by gangway; and
furnish and install two (2) 12" concrete piles by gangway:
Grand Total:
$14,788.00
$14,218.00
$14,812.00
$12,652.00
$13,830.00
$7,340.00
$77,640.00
The work excludes any provision for plan check, surveying, permit, deposits, design,
inspection, or testing and these costs are to be borne by the Grantee.
BALBOA ANGLING CLUB Page A-1
shellmaker inc.
September 25, 2015
Mr. John Luhrs
Balboa Angling Club
200 "A" Street
Balboa, CA 92661
Dear Mr. Luhrs,
As of Friday September 25, 2015, we have completed the following scope of work:
All pile caps and framing beams have been replaced above piles #1-14.
All old timber has been removed from the site and disposed.
All hardware connecting framing beams to building floorjoist has been installed above piles #1-14.
The timber for the remaining two piles has been purchased, cut to length, and stored in our yard.
All the bolts for connecting the timber to the piles have been purchased and stored at our yard.
All the heavy steel channel has been purchased, cut and drilled, and stored at our yard.
29 of the 32 pieces of heavy steel channel have been hot dip galvanized.
Two piles have been drilled for mounting the heavy steel channel.
As of this date Balboa Angling Club has paid a total of $41,008.28, representing all the work that has
been performed to this point.
Following is a description of the work remaining on the contract:
Remove and replace piles #15 and #16.
Install new pile caps and framing beams above piles #15 and #16, dispose of old timber.
Install hardware connecting framing beams to deckjoists above piles #15 and #16.
Drill holes in remaining 12 piles and 2 new piles for mounting channel.
Galvanize remaining three pieces of channel.
Mount channel on all piles.
This represents the remaining scope of work, for an amount of $36,631.72.
Sincerely,
Mike Ormerod
Project Manager
837 W. 17th Street, Costa Mesa, CA 92627 Phone (949) 548-5359 Fax (949) 548-5315
General Engineering Contractors/License No. 561434/Marine Construction
Balboa Angling Club
#
Quotation #1
Quotation #2
Quotation #3
Quotation #4
Quotation #5
Quotation #6
AMOUNT
$14,788.00
$14,218.00
$14,812.00
$12,652.00
$13,830.00
$7,340.00
BILLED/PAID
$ 11,978.28
$ 14,218.00
$ 14,812.00
BILLED NOT PAID
S -
NOT YET BILLED
$2,809.72
$0.00
$0.00
$12,652.00
$13,830.00
$7,340.00
$ 77,640.00 $ 41,008.28 $ - $ 36,631.72
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