16-0531_ORANGE, COUNTY OF_Shelter Participation Agreement PARTICIPATION AGREEMENT
This PARTICIPATION AGREEMENT, dated for reference as of May 31, 2016 (the
"AGREEMENT"), is by and among the COUNTY OF ORANGE (the "COUNTY"), and
the cities of ANAHEIM, BREA, CYPRESS, FOUNTAIN VALLEY, FULLERTON,
HUNTINGTON BEACH, LAKE FOREST, ORANGE, PLACENTIA, SAN JUAN
CAPISTRANO, SANTA ANA, TUSTIN, VILLA PARK, and YORBA LINDA (each, a
"CITY," and collectively, the "CITIES" and, together with the County, the
"PARTIES").
RECITALS
A. WHEREAS, COUNTY and each CITY are, or concurrent with the execution of this
AGREEMENT, will become, parties to an Agreement for Provision of OC Animal
Care Services (the "SERVICES AGREEMENTS"), pursuant to which COUNTY
provides animal care services ("SERVICES") in the jurisdictional boundaries of the
signatory cities, and;
B. WHEREAS, COUNTY provides the SERVICES to the CITIES, as well as to the
unincorporated areas of the COUNTY, through OC Animal Care ("OCAC"), and;
C. WHEREAS, COUNTY owns, and through OCAC operates, an animal care shelter
facility at 561 The City Drive South, Orange, California (the "EXISTING
SHELTER"), and;
D. WHEREAS, the PARTIES agree that, owing to the age and condition of the EXISTING
SHELTER, it is now desirable to construct a new facility (the "NEW SHELTER") in
which to provide enhanced shelter and care services which will benefit the citizens of
each of the PARTIES, and;
E. WHEREAS, the PARTIES acknowledge that the construction of the NEW SHELTER will
impact the operational costs of providing SERVICES pursuant to the SERVICES
AGREEMENTS, which costs are shared among the parties in proportion to their usage of
the SERVICES; and
F. WHEREAS, each PARTY agrees that the construction of the NEW SHELTER is a
benefit to, and necessary to meet the social needs of, each PARTIES' respective
citizens, and, therefore, the PARTIES desire to enter into this AGREEMENT to set
forth terms governing the construction of the NEW SHELTER and the allocation
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among the PARTIES, and the method of payment of, the increased costs of
SERVICES resulting from the construction of the NEW SHELTER.
NOW, THEREFORE, in consideration of the foregoing recitals of fact, the mutual
covenants and conditions contained herein and other consideration, the value and
adequacy of which are hereby acknowledged, the PARTIES agree as follows:
1. Design & Construct
1.1. COUNTY Responsibilities: COUNTY shall be responsible for the design;
preparation of all studies, analyses and documents necessary to deliver the NEW
SHELTER, including any CEQA environmental documentation; obtaining all
permits; administration; and construction of the NEW SHELTER.
1.2. Site: Construction of the NEW SHELTER is sited for the 10 acre area of land
on the Old Tustin Air Force Base located at the 1500 block of Armstrong
Avenue in Tustin, CA and identified on Exhibit A, attached hereto (the "SITE").
1.3. Design Concept: COUNTY has developed the initial design concept of the
NEW SHELTER, attached hereto as Exhibit B. The designof the NEW
SHELTER is scalable based on usage needs. COUNTY shall use best efforts to
scale the final design of the NEW SHELTER to a size reasonably appropriate
for the total requirements of those CITIES that elect to be parties to this
AGREEMENT.
1.4. Project Development: COUNTY has or shall retain the services of a licensed
design-build contractor("CONTRACTOR")to perform further design and all
engineering, planning, preparation of plans and specifications, and complete
construction of the NEW SHELTER, including construction management and
post-construction activities, pursuant to a written agreement between COUNTY
and CONTRACTOR, as the same may be amended from time to time (the
"CONSTRUCTION CONTRACT").
1.5. Design Advisory Board: COUNTY shall establish a Design Advisory Board
(the "DESIGN ADVISORY BOARD") to provide input to COUNTY regarding
the design of the NEW SHELTER. COUNTY shall, in good faith, reasonably
consider the input of the DESIGN ADVISORY BOARD in making
COUNTY'S determinations regarding the design of the NEW SHELTER.
Nevertheless, COUNTY is not bound to follow the recommendations of the
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DESIGN ADVISORY BOARD and the ultimate determination as to the
design of the NEW SHELTER rests entirely with COUNTY. The DESIGN
ADVISORY BOARD shall consist of at least three staff members from the City
Managers Association Animal Care Committee referenced in Paragraph IV of
Exhibit A of the SERVICES AGREEMENT. At least two (2) of the staff
members shall be chosen collectively by those CITIES whose shelter usage each
individually constituted more than eight percent (8%) of total usage of the
EXISTING SHELTER for fiscal year 2014/2015. The third staff member shall
be chosen by mutual agreement of the remaining CITIES.
1.6. Use of NEW SHELTER. The completed NEW SHELTER shall be owned by
COUNTY and shall be used by COUNTY for the provision of SERVICES for
contracting cities and COUNTY unincorporated areas, as needed, pursuant to
the terms of current and future SERVICES AGREEMENTS. In the event
COUNTY elects to discontinue usage of the NEW SHELTER for animal
sheltering purposes prior to December 31, 2066, COUNTY shall offer to those
CITIES then currently contracting with COUNTY to receive SERVICES
pursuant to a SERVICES AGREEMENTS the opportunity to lease the NEW
SHELTER strictly for animal sheltering purposes until such date, at a costs of
$1.00 per year plus all rental costs, if any, owed to SOCCCD pursuant to the
Ground Lease to be entered into between COUNTY and SOCCCD pursuant
to the LETTER OF INTENT defined below (the "GROUND LEASE").
Each and every CITY exercising this option shall be responsible for all
operational costs; utility costs; maintenance, alteration, repair and
improvement costs; and any other costs of sustaining and operating an
animal shelter at the SITE and shall indemnify COUNTY for any costs or
liabilities resulting from or relating to the SITE. Upon exercise of the
option, the COUNTY and the optioning CITIES shall use best efforts to
negotiate mutually agreeable terms for the resulting lease. If the PARTIES
cannot agree to mutually agreeable terms within one hundred and eighty (180)
days after the exercise of the option, the option will terminate. The option
provided for in this subsection is exclusive to those CITIES described above and
may only be exercised collectively by those CITIES that elect to exercise the
option or, if only one CITY wishes to do so, by that single electing CITY. The
option must be exercised, if at all, within one hundred and eighty (180) days
after COUNTY notifies CITIES of its decision to discontinue use of the NEW
SHELTER for animal sheltering purposes. The option provided herein shall be
contingent upon the GROUND LEASE not terminating by its terms prior to
COUNTY obtaining fee hold possession of the SITE. In the event COUNTY
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does not yet have fee hold possession of the SITE as of April 29, 2034, the
expiration date of the GROUND LEASE, COUNTY shall, at least six months
prior to that date, consult with those CITIES then contracting with COUNTY
for SERVICES regarding proposed methods of accessing continued use of the
SITE. Upon execution of the GROUND LEASE, COUNTY and CITIES shall
consult regarding any assistance CITIES can provide to facilitate and expedite
conveyance of the SITE to COUNTY.
1.7. Contingency: All obligations created by this Agreement are contingent upon
the full execution of the GROUND LEASE and receipt of possession of the
SITE by COUNTY.
2. Construction Costs Allocation
2.1 Total Costs: Total cost of NEW SHELTER construction shall include: a) all
design development costs; b) all costs incurred by COUNTY pursuant to the
CONSTRUCTION CONTRACT; c) all site preparation costs; d) all costs of
fixtures; e) all costs incurred by COUNTY under the Amended and Restated
Agreement for the Exchange of Real Property to be entered into between
COUNTY and the South Orange County Community College District(the
"SOCCCD") pursuant to the Letter of Intent Regarding the Proposal to Ground
Lease SOCCD Exchange Parcel to County of Orange For Development as
Animal Care Center/Amendment of County-SOCCCD Land Exchange
Agreement, which Letter of Intent is attached hereto as Exhibit C (the
"LETTER OF INTENT"), as the same may be amended from time to time, as
well as any costs incurred pursuant to the LETTER OF INTENT itself; and f)
any and all other costs incurred by COUNTY for any construction or
construction related activity on the Site incurred in connection with the NEW
SHELTER(the "ACTUAL CONSTRUCTION COSTS"). The maximum
amount to be paid hereunder as ACTUAL CONSTRUCTION COSTS is set
forth on Exhibit D, attached hereto (the "MAXIMUM CONSTRUCTION
COSTS"). Upon completion of the NEW SHELTER, COUNTY shall provide
CITIES with a full accounting of the application of all funds spent on ACTUAL
CONSTRUCTION COSTS.
2.2 COUNTY's Contribution: COUNTY shall contribute toward the construction
of the NEW SHELTER the land upon which the NEW SHELTER shall be
constructed and five million dollars ($5,000,000.00)to be applied toward
MAXIMUM CONSTRUCTION COSTS. Any COUNTY funds paid by
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COUNTY toward ACTUAL CONSTRUCTION COSTS on or after the
execution of this AGREEMENT shall count toward the $5,000,000 to be
contributed by COUNTY and will be applied toward costs of construction as
necessary to cover any discrepancy between available CITY payment funds and
ACTUAL CONSTRUCTION COSTS as they become due and payable.
2.3 CITIES' Contribution: The remainder of MAXIMUM CONSTRUCTION
COSTS beyond the five million dollars ($5,000,000.00) paid by COUNTY
("CITIES' SHARE OF MAXIMUM CONSTRUCTION COSTS") will be
divided among the CITIES based on the formula set forth in Exhibit D, attached
hereto. Each CITY'S respective percentage share of CITIES' SHARE OF
MAXIMUM CONSTRUCTION COSTS, as determined by said formula, is also
set forth on Exhibit D. On that date which is five (5) years after the full
execution of this AGREEMENT, each CITY'S respective percentage share of
CITIES' SHARE OF MAXIMUM CONSTRUCTION COSTS shall be
recalculated based on the same formula as set forth in Exhibit D but using then
current statistical data. If any CITY'S respective percentage share of CITIES'
SHARE OF MAXIMUM CONSTRUCTION COSTS is altered by the
recalculation by more than five percentage points, then each CITY'S total share
of CITIES' SHARE OF MAXIMUM CONSTRUCTION COSTS shall be
recalculated so that the originally calculated percentage shall be applied to one
half of CITIES' SHARE OF MAXIMUM CONSTRUCTION COSTS and the
recalculated percentage shall be applied to the second half of CITIES' SHARE
OF MAXIMUM CONSTRUCTION COSTS. All future payments owed by
each CITY shall be adjusted based on the results of the recalculation of each
such CITY'S total share of CITIES' SHARE OF MAXIMUM
CONSTRUCTION COSTS. If said adjustment results in a reduction in the
amount owning by any CITY that, as of that time, has already fully paid its
share of the MAXIMUM CONSTRUCTION COSTS, such reduction shall be
credited as an offset against future charges, if any, under such CITY'S
SERVICES AGREEMENT. If said adjustment results in an increase in the
amount owning by any CITY that, as of that time, has already fully paid its
previously calculated share of the MAXIMUM CONSTRUCTION COSTS, the
amount of such increase shall be due and payable pursuant to the same payment
schedule as those CITIES that have not elected to prepay their share of
MAXIMUM CONSTRUCTION COSTS, subject to the same prepayment
option. COUNTY shall, upon request of a CITY, provide the requesting CITY
with copies of the data and documents used to calculate each CITY's percentage
share of CITIES' SHARE OF MAXIMUM CONSTRUCTION COSTS.
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2.4 Payment Schedule: Each CITY shall pay its full share of CITIES' SHARE OF
MAXIMUM CONSTRUCTION COSTS, in addition to costs to be paid in
accordance with such CITY'S SERVICES AGREEMENT, in consideration of
each such CITY'S continuing right to use the NEW SHELTER or the
EXISTING SHELTER or any replacement of the NEW SHELTER or the
EXISTING SHELTER (together, or any one of them, "SHELTERS") pursuant
to the terms of its SERVICES AGREEMENT. Each CITY'S annual obligation
to make the payments required hereunder is contingent on the COUNTY
making available to such CITY, for the respective year, the use of SHELTERS
pursuant to the terms of such CITY'S SERVICES AGREEMENT. At the
election of each individual CITY, payment of the amounts owing hereunder may
be made in advance of use or may be made over the ten (10) year term of the
SERVICES AGREEMENTS in accordance with the Payment Schedule,
attached hereto as Exhibit E (the "PAYMENT SCHEDULE"). For CITIES
electing not to pay in advance of the scheduled payment, the annual amount
each such CITY shall owe hereunder shall be increased by the formula shown
on the PAYMENT SCHEDULE as the "ADDITIONAL FUNDING COST."
The higher payment amount to be paid by CITIES not electing to pay in advance
represents the cost to the COUNTY of the lost value overtime of the money paid
by COUNTY toward ACTUAL CONSTRUCTION COSTS beyond the
$5,000,000 provided for above. The amounts indicated on the PAYMENT
SCHEDULE further include costs to be incurred by the relevant CITY for each
thirty (30) day period that any payment is overdue. Each CITY
acknowledges that the construction and availability of SHELTERS for
use by each CITY over the term of such CITY'S SERVICES
AGREEMENT is a substantial benefit to such CITY. In the event any
CITY refuses to receive SERVICES from COUNTY in violation of the
terms of such CITY'S SERVICES AGREEMENT despite being offered
such SERVICES by COUNTY, or in the case of a default or failure to
pay its cost share in accordance with this AGREEMENT, each CITY
remains obligated to pay to COUNTY its outstanding payments
hereunder as they become due and payable and COUNTY may take any
legal action as appropriate to obtain such payment. Further, the
PARTIES acknowledge that the payments owing hereunder do not
reduce or offset amounts owing pursuant to the SERVICES
AGREEMENTS.
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3. Participation of New Cities After Commencement of Construction. After full execution
of this AGREEMENT, no city will be added to the OCAC SERVICES program for a
period of three (3) years from the date first set forth above, to allow for appropriate
sizing and establishment of operational protocols for the NEW SHELTER. If a new
city elects to participate in the OCAC SERVICES program after the three (3) year
period indicated above, and COUNTY elects to provide SERVICES to such city, such
city will be required to pay a pro rata portion of the MAXIMUM CONSTRUCTION
COSTS based on the formula set forth in Exhibit D. Any new participating cities'
contributions pursuant to this section will be applied first toward any necessary
expansion of the NEW SHELTER and the remainder will be deposited into a shelter
maintenance and repair fund (the "SHELTER MAINTENANCE FUND"). COUNTY
shall establish a separate project fund account for all funds allocable to the SHELTER
MAINTENANCE FUND and shall not commingle any other funds in said account. It is
the intention of the PARTIES that any funds contained in the SHELTER
MAINTENANCE FUND be exhausted prior to any additional contributions by the
PARTIES toward post-construction shelter upgrades or capital improvements. Prior to
contracting to provide SERVICES to a new city, COUNTY shall consult with those
CITIES then currently contracting with COUNTY to receive SERVICES pursuant to a
SERVICES AGREEMENT. COUNTY shall in good faith consider the input of those
cities in making COUNTY'S determination as to whether to provide SERVICES to the
proposed new city. Nevertheless, COUNTY is not bound to follow the
recommendations of those cities and the ultimate determination as to whether to
provide SERVICES to the proposed city rests entirely with COUNTY.
4. NEW SHELTER Account; Deposit of Funds. Upon the execution of this AGREEMENT,
COUNTY shall establish a separate capital project fund account for all funds of the
PARTIES which are to be applied toward ACTUAL CONSTRUCTION COSTS for the
NEW SHELTER(the "NEW SHELTER ACCOUNT") and shall not commingle any other
funds in said account. Funds payable by any CITY as an additional cost imposed due to
late payment, or that are allocable to COUNTY to reimburse COUNTY for any COUNTY
funds spent on ACTUAL CONSTRUCTION COSTS beyond the $5,000,000
provided for above, or that are to reimburse COUNTY for the lost value over time of the
money paid by COUNTY toward ACTUAL CONSTRUCTION COSTS beyond the
$5,000,000 provided for above, shall not be paid into the NEW SHELTER ACCOUNT but
shall be paid directly to COUNTY for COUNTY'S sole use.
5. Allocation of Excess Funds. Upon final completion of the NEW SHELTER, issuance of a
certificate of occupancy, payment of all ACTUAL CONSTRUCTION COSTS, and
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payment of all amounts due pursuant to this AGREEMENT, any unused funds remaining in
the NEW SHELTER ACCOUNT, but not exceeding an amount equal to the difference
between total ACTUAL CONSTRUCTION COSTS incurred and MAXIMUM
CONSTRUCTION COSTS, shall be credited to those CITIES then obtaining SERVICES
from COUNTY against future charges under each such CITY'S SERVICES
AGREEMENT based on the same percentages that each such CITY paid of the CITIES'
SHARE OF MAXIMUM CONSTRUCTION COSTS. Any funds not distributed in
accordance with the previous sentence shall be deposited into the SHELTER
MAINTENANCE FUND.
6. Operational Commitment. Concurrent with the execution of this AGREEMENT, each
CITY shall enter into a new, amended SERVICES AGREEMENT with COUNTY in
the form attached hereto as Exhibit F (the "AMENDED SERVICES AGREEMENT").
The operational cost for SERVICES owing pursuant to the AMENDED SERVICES
AGREEMENTS, calculated with respect to each CITY and unincorporated COUNTY
area, shall include, together with all other annual costs of operation of OCAC, all rental
costs, if any, under the Ground Lease to be entered into between COUNTY and
SOCCCD pursuant to the LETTER OF INTENT. All PARTIES acknowledge that the
division of all operational costs among the PARTIES allows for costs efficiencies and
operational savings to each PARTY and that each PARTY has entered into this
AGREEMENT and its AMENDED SERVICES AGREEMENT in reliance on such
shared costs and resulting savings. Each CITY, to provide assurance of such continued
cost efficiencies to each remaining PARTY, hereby expresses its commitment to
procure SERVICES from COUNTY for a period of 10 years and acknowledges the
financial burden that any breach of this commitment would have on all other
PARTIES. To that end the AMENDED SERVICES AGREEMENTS shall each
provide for a 10 year term of service.
7. Defaults and Remedies.
7.1. Defaults. The failure by any PARTY to perform any of its obligations set forth in
this AGREEMENT shall constitute a default of this AGREEMENT. Except as
required to protect against further damages, the nondefaulting PARTY may not
institute legal proceedings against the PARTY in default until the nondefaulting
PARTY has provided the defaulting PARTY notice of the default and the
following applicable cure period has expired: (i) the cure period for any monetary
default shall be fifteen (15) calendar days after the defaulting PARTY'S receipt of
written notice from the nondefaulting PARTY that such obligation was not
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performed; and (ii) the cure period for any other default shall be thirty (30) days
after the defaulting PARTY'S receipt of written notice from the nondefaulting
PARTY that such obligation was not performed.
7.2. Remedies Upon Default. Upon the occurrence of any default and after the
defaulting PARTY has received written notice of default and the time period to
cure the default has expired, the nondefaulting PARTY may at its option pursue
damages or specific performance or other legal and equitable remedies the injured
PARTY may have against the defaulting PARTY in accordance with applicable
law. Should any CITY fail to pay any payment due by that CITY hereunder,
COUNTY may take any action as is appropriate to obtain such payment. Nothing
herein shall be construed as COUNTY'S exclusive remedy for the remediation of
default by a CITY or CITIES, and COUNTY reserves the right to pursue any and
all available rights and remedies at law or in equity.
7.3. Non-refund of Contributions. The payments made by all PARTIES pursuant to
this AGREEMENT shall be used for completion and maintenance of the NEW
SHELTER in the manner described herein and all PARTIES acknowledge and
agree that the completion and maintenance of the NEW SHELTER, as well as the
completion of each phase of construction activity and each construction milestone
under the CONSTRUCTION CONTRACT, provides an immediate benefit to
each PARTY and that no payments made pursuant to this AGREEMENT shall be
refunded for any reason other than pursuant to the last sentence of Section 8.1.a.
8. Results of Nonpayment by any CITY.
8.1. Adjustment of Payments Upon Nonpayment:
a) All PARTIES acknowledge that the failure of any CITY to pay any
amount hereunder will result in an increase in the operational costs of sheltering
SERVICES to be divided among all other CITIES. To that end, in the event
any CITY fails to pay, for any other reason, any amount to be paid by that
CITY under this AGREEMENT, within fifteen (15) days of when such
payment is due, the amount of such nonpayment will be apportioned
among the remaining CITIES such that the remaining CITIES' will be
responsible to pay such unpaid amount. The amounts paid by the
remaining CITIES pursuant to this section will be applied in the following
order: first to replenish any COUNTY funds spent on ACTUAL
CONSTRUCTION COSTS that would have been paid by funds owed by
the nonpaying CITY, second to pay any other amounts due to COUNTY
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by the nonpaying CITY pursuant to this AGREEMENT, and the
remainder to pay ACTUAL CONSTRUCTION COSTS as they come due.
Should the non-paying CITY pay any portion of the amount owing, the
increased cost paid pursuant to this subsection by the remaining CITIES
will be reimbursed to the extent of the amount of such repayment. This
section shall apply to each payment obligation owed and not paid by any
CITY as it becomes due and payable and shall not result in any
acceleration of the full amount payable by the nonpaying CITY over the
term of this AGREEMENT. In the event any CITY should default in its
obligations under this AGREEMENT and no longer obtain sheltering
SERVICES from COUNTY, COUNTY shall consult with all CITIES then
obtaining SERVICES from COUNTY to discuss methods of cost
reduction that may be made available as a result of such reduction in
sheltering SERVICES usage.
b) It is the intention of all PARTIES that no funds provided by any
PARTY under this AGREEMENT shall be reimbursed for any other reason than
that set forth in the last sentence of the foregoing subsection (a). If, pursuant to
judicial action or threat thereof, any funds are reimbursed under this
AGREEMENT to any CITY, other than pursuant to the last sentence of the
foregoing subsection (a), the remaining CITIES' will be responsible to pay
to the COUNTY the reimbursed amount.
c) Each CITY's proportional share of any amounts required to be paid by
CITIES pursuant to this section shall be determined based on the formula set forth
on Exhibit D. Each CITY'S resulting incremental increase in contribution
will be due within thirty (30) days of notification by the COUNTY to the
participating CITIES of the increased amount owing. The obligation of
CITIES to pay increased amounts under this Section 8 is not intended to
be an exclusive remedy. COUNTY reserves the right to take any action as
is appropriate to obtain payment from any non-paying CITY.
Additionally, each CITY paying increased costs pursuant to this Section 8,
shall have and retain the right to take any action at law or equity as is
appropriate to obtain reimbursement of such increased payment amounts
from the non-paying CITY.
8.2. Impact of Nonpayment upon SERVICES AGREEMENT. In the event any
CITY fails to pay, for any reason, any amount to be paid by that CITY
under this AGREEMENT, such failure shall constitute a default under the
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nonpaying CITY's SERVICES AGREEMENT and COUNTY shall have
the right to immediately terminate such SERVICES AGREEMENT, at its
discretion.
9. Status of COUNTY as Independent Contractor. COUNTY is, and shall at all times be
deemed to be, an independent contractor. Nothing herein contained shall be construed as
creating the relationship of employer and employee, or principal and agent, between any
CITY and COUNTY or any of COUNTY's agents or employees. COUNTY shall retain all
authority for rendition of services, standards of performance, control of personnel, and
other matters incident to the performance of services by COUNTY pursuant to this
Agreement. COUNTY, its agents and employees shall not be considered to be CITY
employees.
10. Governing Law and Venue. This AGREEMENT has been negotiated and executed in the
State of California and shall be governed by and construed under the laws of the State of
California. In the event of any legal action to enforce or interpret this AGREEMENT, the
sole and exclusive venue shall be a court of competent jurisdiction, located in Orange
County, California, and the PARTIES hereto agree to and hereby submit to the jurisdiction of
such court, notwithstanding Code of Civil Procedure Section 394. Furthermore, the
PARTIES specifically agree to waive any and all rights to request that an action be
transferred for trial to another county.
11. Term and Termination: This AGREEMENT shall be effective from the date first set
forth above until each PARTY has made the last payment required under this
AGREEMENT, provided that the rights granted with respect to the option created
pursuant to Section 1.6 shall continue in accordance with the terms of Section 1.6.
12. Amendments/Entire Agreement: Amendments to this AGREEMENT must be in
writing and approved by the governing body of each PARTY. This AGREEMENT is
the entire agreement among the parties with respect to the construction of the NEW
SHELTER and it supersedes any prior written or oral agreements with respect to the
subject. Any and all exhibits that may be referred to in this AGREEMENT are by such
references incorporated in this AGREEMENT and made a part hereof.
13. Severability. If any provision of this AGREEMENT, or the application thereof, to any
extent, is held by a court of competent jurisdiction to be invalid, void or unenforceable,
such provision, to the extent it is valid and enforceable, and all other remaining provisions
hereof shall remain in full force and effect, to the fullest extent possible, and shall in no
way be affected, impaired or invalidated thereby to the extent such provisions are not
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rendered impractical to perform taking into consideration the purposes of this
AGREEMENT.
14. Attorney's Fees. In any action or proceeding to enforce or interpret any provision of this
AGREEMENT, or where any provision hereof is validly asserted as a defense, each
PARTY shall bear its own attorney's fees, costs and expenses.
15. Interpretation. This AGREEMENT has been negotiated at arm's length and between
persons sophisticated and knowledgeable in the matters dealt with in this AGREEMENT.
In addition, each PARTY has been represented by experienced and knowledgeable
independent legal counsel of its own choosing or has knowingly declined to seek such
counsel despite being encouraged and given the opportunity to do so. Each PARTY further
acknowledges that is has not been influenced to any extent whatsoever in executing this
AGREEMENT by the other PARTIES hereto or by any person representing the other
PARTIES, or both. Accordingly, any rule or law (including California Civil Code Section
1654) or legal decision that would require interpretation of any ambiguities in this
AGREEMENT against the PARTY that has drafted it is not applicable and is waived. The
provisions of this AGREEMENT shall be interpreted in a reasonable manner to affect the
purpose of the PARTIES and this AGREEMENT.
16. Consent to Breach Not Waiver. No term or provision of this AGREEMENT shall be
deemed waived and no breach excused, unless such waiver or consent shall be in writing
and signed by the PARTY claimed to have waived or consented. Any consent by any
PARTY to, or waiver of, a breach by the other, whether express or implied, shall not
constitute consent to, waiver of, or excuse for any other different or subsequent breach.
17. Authority. The PARTIES to this AGREEMENT represent and warrant that this
AGREEMENT has been duly authorized and executed and constitutes the legally binding
obligation of their respective organization or entity, enforceable in accordance with its
terms.
18. Hold Harmless. Each CITY shall hold harmless, indemnify, and defend COUNTY, its
officers, employees, and agents from and against any and all claims, suits, or actions of
every kind brought for or on account of injuries to or death of any person or damage to
any property of any kind whatsoever and to whomsoever belonging which arise out of
such CITY'S failure to fulfill any payment obligations of such CITY arising pursuant
to this AGREEMENT. COUNTY shall hold harmless, indemnify, and defend each
CITY, its officers, employees, and agents from and against any and all claims, suits, or
actions of every kind brought for or on account of injuries to or death of any person or
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damage to any property of any kind whatsoever and to whomsoever belonging which
arise out of the performance or nonperformance of COUNTY's covenants and
obligations under this AGREEMENT and which result from the actively negligent or
wrongful acts of COUNTY or its officers, employees, or agents. This provision requiring
COUNTY to hold harmless, indemnify, and defend each CITY shall expressly not apply to
claims, losses, liabilities, or damages arising from actions or omissions, negligent or
otherwise, of any independent contractor providing services pursuant to a contract with the
COUNTY. In the event of concurrent negligence of the COUNTY, its officers, or
employees, and any CITY, its officers and employees, then the liability for any and all
claims for injuries or damages to persons and/or property or any other loss or cost which
arises out of the terms, conditions, covenants or responsibilities of this AGREEMENT shall
be apportioned in any dispute or litigation according to the California theory of
comparative negligence.
19. Appropriations. During the term of this AGREEMENT, for each fiscal year, each CITY
shall make every effort to adopt all necessary budgets and make all necessary
appropriations for all payments due hereunder. The covenant contained in this Section 19
shall be deemed to be, and shall be construed to be, contingent upon the continuing offer by
COUNTY to provide SERVICES and use of SHELTERS to each individual CITY. To the
extent COUNTY offers the provision of SERVICES and use of any SHELTERS to any
CITY, the continued responsibility of such CITY to make all payments required hereunder
shall be a duty imposed by law and it shall be the duty of each and every public official of
each CITY to take such actions and do such things as are required by law in performance of
the official duty of such officials to enable the CITY to carry out and perform the covenants
contained in this Section 19. All PARTIES acknowledge that the construction,
maintenance and availability of SHELTERS for the provision of services to all
PARTIES and the division of the costs of constructing and maintaining such
SHELTERS among the PARTIES allows for costs efficiencies and significant savings
to each PARTY and that each PARTY has entered into this AGREEMENT and its
SERVICES AGREEMENT in reliance on such shared costs and resulting savings.
Each PARTY, to provide assurance of such cost efficiencies to each remaining
PARTY, hereby expresses its commitment to fulfill its stated obligations under this
AGREEMENT regardless of the term of the AGREEMENT overlapping more than one
fiscal year and acknowledges the financial burden that any breach of the terms of this
AGREEMENT will have on all other PARTIES.
20. Assignability. Except as otherwise expressly provided for herein, no PARTY shall assign
any of its obligations or rights hereunder without the consent of all other PARTIES.
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21. Execution in Counterpart. This AGREEMENT may be executed in counterparts, each of
which, when the PARTIES hereto have signed this AGREEMENT, shall be deemed to be an
original, and such counterparts shall constitute one and the same instrument.
22. Notices. Any notices required to be given pursuant to this AGREEMENT shall be given in
writing and shall be mailed to all PARTIES to the AGREEMENT, as follows
To CITY:
With respect to each CITY, notification shall be provided at the address
indicated under each CITY'S signatory block.
To COUNTY:
County of Orange
OC Community Resources
Director's Office
1770 North Broadway
Santa Ana, CA 92706-2642
and
County of Orange
OC Community Resources
OC Animal Care Director
561 The City Drive South
Orange, CA 92868
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IN WITNESS WHEREOF. the Board of Supervisors of the COUNTY OF ORANGE has
authorited and directed the Director of O(' Community Resources to execute this Agreement tbr
and on behalf of the COUNTY. and the CITIES of ANAHEIM, BREA, CYPRESS,
FOUNTAIN VALLEY. 11.11,LERION, HUNTINGTON BEACH, LAKE FOREST.
ORANGE. PLACENTIA. SAN JUAN CAPISTRANO. SANTA ANA. TUSTIN. VILLA
PARK, and YORBA LINDA have caused this AGREEMENT to he subscribed by each of
their duly authorized officers and attested by their Clerks,
DATE: COU ORANGE
Clerk of the Board
CLj 4J1A
/
ATI:: a/ CITY OF ANAHEIM
1 Oa 4 I
r 41' (7f4feteed.r:e.e.--<--
City Clerk Bv:
Lucille Kring, Mayo ro Tem
Address for Notification Purposes: {=ity-Mttfteeer
APPROVED AS TO FORM: City of Anaheim
•EIM CITY ATTORNEY' ,f) E 200 S. Anaheim Blvd.
iv, • -
-NI Anaheim. CA 92803
I.,
\ N
DATE: CITY OF I3REA
City Clerk By:
Address for Notification Purposes: City Manager
City of Brea
I Civic Center Circle
Brea, CA 92821
15
DATE.: CITY OF CYPRESS
City Clerk 1.3y:
Address tOr Notification Purposes: City Manager
City oiCypress
5275 Orange Avenue
Cypress, CA 90630
DATE: CITY OF FOUNTAIN VALLEY
City Clerk By:
Address for Notification Purposes: City Manager
City of Fountain Valley
10200 Slater Avenue
Fountain Valley. ('A 92708
DATE: -5--‘)V/b CITY OF FULLERTON
Clerk
Address for Notification Purposes: City Manager
City of Fullerton'
303 West Commonwealth Ave.
Fullerton, CA 9232
DATE: (ITN' OF HUNTINGTON
BEACH
City Clerk By:
Address for Notification Purposes: City Administrator
City offluntington Beach
2000 Main Street
Huntington Beach, CA 92648
16
IN WTI NESS WIIERE:OF, the Board of Super‘isors of the ('UI sN'1 Y OF ORANGE has
authorized and directed the Director of OC Community Resources to execute this Agreement for
and on behalf of the C'OUN I Y, and the CITIES of ANAE IEIM. BRE.A, CYPRESS,
FOUNTAIN VALLEY, Ft 1I.LERTON, HUUNI'INGTON BEAC'I I. LAKE FOREST.
ORANGE. PLACE,NT IA, SAN JUAN CAPISTRANO, SANTA ANA. TUSTIN, VILLA
PARK. and YORBA E.INI)A have caused this AGREEMENT to he subscribed by each of
their duly authorized officers and attested by their Clerks.
DATE: ('OU TY; ORANGE
Clerk of the Board 1 v
v2
DATE: CITY OF ANAHEIM
City Clerk By:
Address for Notification Purposes: City Manager
City of Anaheim
200 S. Anaheim Blvd.
Anaheim. CA 92803
DATE• i �(, /6,-) ° '�� CITY OF BRE\
l . I rris-Neal, City Clerk ;' y- Christine Muriel:, Mayor
Address for Notification Purposes: City Manager
City of Brea
1 Civic Center Circle
Brea, CA 92821
15
DATE: CITY OF SANTA ANA
City Clerk By:
Address for Notification Purposes: City Manager
City of Santa Ana
20 Civic Center Plaia
Santa Ana, CA 92701
DATE: CITY OF TUSTIN
City Clerk By:
Address for Notification Purposes: City Manager
City of Tustin
300 Centennial Way
Tustin, CA 92780
DATE: 5/2-5A tP CITY QF VILLA PARK
,„-
'4.6 ---
City Clerk By:
Address for Notification Purposes: City Manager
City of Villa Park
17855 Santiago Boulevard
Villa Park, CA 92861
DATE: CITY OF YORBA LINDA
City Clerk By:
Address for Notification Purposes: City Manager
City of Yorha Linda
4845 Casa Loma Avenue
Yorha Linda, CA 92885
18
DATE: CITY OF SANTA ANA City Clerk By:
--
Address for Notification Purposes: City Manager
City of Santa Ana
20 Civic Center Plaza
Santa Ana, CA 92702
DATE: / - CITY OF TUSTIN
710
City
-
City Clerk By fef rey C. Parker
Address for Notification Purposes: City Manager
City of Tustin
300 Centennial Way
Tustin, CA 92780
DATE: CITY OF VILLA PARK
City Clerk By:
Address for Notification Purposes: City Manager
City of Villa Park
17855 Santiago Boulevard
Villa Park, CA 92861
DATE: CITY OF YORBA LINDA
City Clerk By:
Address for Notification Purposes: City Manager
City of Yorba Linda
4845 Casa Loma Avenue
Yorba Linda, CA 92885
18
ATTEST: CITY OF SANTA ANA
IT
Jim
) u • i1141_,
MARIA D. HUIZAR DAVID CAVAZOS
Clerk of the Council City Manager
APPROVED AS TO FORM:
SONIA R. CARVALHO
CITY ATTORNEY
By: ccwIt-k1< 1/,L:
Laura A. Rossini
Senior Assistant City Attorney
RECONINIENDED FOR APPROVAL:
C/2
Carlos Rojas
Chief of Police
DATE: CITY OF LAKE FOREST
City Clerk By:
Address tbr Notification Purposes: City Manager
City of Lake Forest
25550 Commercentre Dr., Suite 100
Lake Forest, CA 92630
DATE: CITY OF ORANGE
City Clerk By:
Address for Notification Purposes: City Manager
City of Orange
300 E. Chapman Avenue
Orange, CA 92866
CITY OF PLACENTIA
•
-------
_,,--<1, .
City Clerk Iick J. Me ia By: Damien R.-ikrrula
/
Address tbr Notification Purposes: City Administrator
City of Placentia
401 East Chapman Ave.
Placentia, CA 92870
DATE: CITY OF SAN JUAN
CAPISTRANO
City Clerk By:
Address for Notification Purposes: City Manager
City of San Juan, Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
17
DATE: CITY OF LAKE FOREST
City Clerk By:
Address for Notification Purposes: City Manager
City of Lake Forest
25550 Commercentre Dr., Suite 100
Lake Forest, CA 92630
DATE: CITY OF ORANGE
City Clerk By:
Address for Notification Purposes: City Manager
City of Orange
300 E. Chapman Avenue
Orange, CA 92866
DATE: CITY OF PLACENTIA
City Clerk By:
Address for Notification Purposes: City Administrator
City of Placentia
401 East Chapman Ave.
Placentia, CA 92870
i • � c i•S_ � CITY OF SAN JUA
CAPISTRANO
wy-c,
Address for Notification Purposes: City Manager
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
17
CITY OF LAKL FOREST
City Clerk :
Address for Notification Purposes: City Manager
City of Lake Forest
25550 Commercentre Dr.. Suite 100
Lake Forest, CA 92630
CITY OF ORANGE
City Clerk y
Address for Notification Purposes: City Manager
City of Orange
APPROVED AS TO FORM 3U() E. Chapman Avenue
Orange, CA 92866
WAVE W. WINTHERS
1)A-1 I : city_Attorney<,,,44A-6.0- CITY OF PLACENTIA
City Clerk By:
Address for Notification Purposes: City Administrator
City of Placentia
401 East Chapman Ave.
Placentia. CA 92870
DA IT: CITY OF SAN JUAN
CAPISTRANO
City Clerk By:
Address for Notification Purposes: City Manager
City' of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano. CA 92675
17
DATE: C'I"I'Y OF CYPRESS
City Clerk By:
Address for Notification Purposes: City Manager
City of Cypress
5275 Orange Atienue
Cypress. CA 90630
DATI:: CITY OF FOl!NI AIN VALLEY
('its Clerk By:
Address for Notification Purposes: City Manager
City of Fountain Valley
10200 Slater Avenue
Fountain Valle., CA 92708
DA"CFL CITY OF FULLERTON
City Clerk By:
Address for Notification Purposes: City Manager
City of Fullerton
303 West Commonwealth Ave.
Fullerton, CA 92832
DATE: rP" " a1)%1 CITY OF I-ItIN`l INGTON
B =ACTT
ft
City Zlerk By Jim Katapodi-'Mayor
Address for Notification Purposes: City Manager
City of Iluntington Beach
2000 Main Street
I Iuntington Beach, CA 92648
APPROVED AS TO FORM
16 ehaet Gates,Miry Attorney
1)A 11 : •47— /9- / to CI IN 1 KF, )
Clcrk By: TiclreN ilatitilton. 1a)or
At1,Ircss kir Notification Purposes: Cit) Nlanager
Cit or LakeI
.1555() Commercentre Dr.. Suite 100
Lake I.orest. CA 92630
I)A•11 : (.11Y ( )1: 01:A1\1(il .
( it\ ('irk By:
Address lor •N:otitleation Puri ' : Nlitnauer
Cit, of*()range
300 1.„ Chapman A\.entic
t)ranoc. ( I\ 92806
DA II,: ('I IV ()1: PI.ACIIN I IA
Cit)
Address kir Notification Purposes: tity Administrator
Cit Placentiii
401 Past Chapman A\e.
Placentia. (•A 9287(
1)A I I : CI I N' OF SAN PLAN
CAPIS1 RAN()
Cit\ Clerk By:
Addrcss kn. Notification PurposLis: City Manager
City of•San Juitit Capistrano
32400 Paseo Athlanto
San Juan Capistrano. CA 92675
17
DATE: CITY OF CYPRESS
City Clerk By:
Address fur Notification Purposes: City Manager
City of Cypress
5275 Orange Avenue
Cypress, CA 90630
DATE: - 31_4 CIT SF FOUNTAIN VALLEY
410-41 .
1
City Clerk By:
Address fur Notification Purposes: City Manager
City of Fountain Valley
10200 Slater Avenue
Fountain Valley. CA 92708
DATE: CITY OF FULLERTON
City Clerk By:
Address for Notification Purposes: City Manager
City of Fullerton
303 West Commonwealth Ave.
Fullerton. CA 92X32
DATE: CITY OF HUN TINGTON
BEACH
City Clerk By:
Address for Notification Purposes: City Administrator
City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
16
DATE: _ ='' T , C C1 PRESS
t t l_ i*,.� P f.)t lie i
City Clerk By:
Address for Notification Purposes: City Manager
City of Cypress
5275 Orange Avenue
Cypress. CA 9063()
DATE: CITY OF FOUNTAIN VALLEY
City Clerk By:
Address for Notification Purposes: City Manager
City of Fountain Valley
10200 Slater Avenue
Fountain Valley. CA 92708
DATE: CITY OF FULLERTON
City Clerk By:
Address for Notification Purposes: City Manager
City of Fullerton
303 West Commonwealth Ave.
Fullerton,CA 92832
DATE: CITY OF HUNTINGTON
BFACII
City Clerk --- ---_ By:
Address for Notification Purposes: City Administrator
City of Huntington Beach
2000 Main Street
Huntington Beach,CA 92648
5.
16
DATE: CITY OF SANTA ANA
City Clerk By:
Address for Notification Purposes: ('it) Manager
City ot'Santa Ana
20 Civic Center Plaza
Santa Ana, CA 92702
1)A"11:: CI I'Y OF I t1S l IN
City Clerk By: �.
Address for Notification Purposes: City Manager
City aTustin
300 Centennial Way
1 ustin. CA 92780
CITY OF VILLA PARK
City Clerk By:
Address for Notification Purposes: City Manager
City of'Villa Park
17855 Santiago Boulevard
Villa Park. CA 92861
DATE:E,: /31/1to CITY OF YORI INI)A
By: Marcia Brown, City. Clerk By: Mark Pulone. City Manager
Address for Notification Purposes: City Manager
City.. of Yorba Linda
4845 Casa Loma Avenue
Yorha Linda. CA 92885
18