Loading...
AGR-6562.1 - THE ORANGE DOG PARK ASSOCIATIONAMENDED AND RESTATED COOPERATIVE AGREEMENT THIS AMENDED AND RESTATED COOPERATIVE AGREEMENT (the ________, 2023 (the and THE ORANGE DOG PARK ASSOCIATION, a California non-profit public benefit A.The City is the owner of that certain real property commonly known as Yorba Park, which is located on approximately 8.5 acres of land at the southwest corner of Chapman Avenue and Yorba Street in the City of Orange; and, B.The Association is organized for the purpose of, among other things, raising funds and providing volunteer support to improve and maintain a dog exercise area in the City of Orange; and, C.By the adoption of Resolution No. 9775 on September 23, 2003 (attached hereto as ) Master Conceptual Plan for the redevelopment of Yorba Park as it pertains to a 2.4 acres exerc dogs may be off a leash, subject, however, to the subsequent identification of costs and funding sources for, among other things, improvements needed to implement a dog exercise area; and, D.The Association has received donations, gifts, grants and bequests from members support of its purposes; and, E.The Association donated the City to complete the construction of a dog exercise area at Yorba Park in the location at Yorba Park that is generally depicted on the map attached hereto as Exhibit B (th benefit of members of the Association and the general public; and, F. Park and opening it for use by the general public, the Association continued its fundraising efforts and use some or all of such funds for ongoing maintenance and improvement of the Dog Park and 6, below); and, G.On January 22, 2018, the City and the Associated entered into Agreement No. 6562 in order to define ongoing roles and responsibilities of the City and the Association and continue a cooperative relationship for operation and maintenance of the Dog Park, which Agreement terminated on January 22, 2023, with the Association opting to extend the term for five additional years as provided in Section 2 of that Agreement; and H.The City and the Association wish to extend the Agreement and implement certain clarifications and additional provisions to advance the interests of both parties. AGR-6562.1 17 April 2 NOW, THEREFORE, for and in consideration of these premises and the terms and conditions herein, the adequacy and legal sufficiency of which are hereby acknowledged, the City and the Association agree to extend Agreement No. 6562 until January 22, 2028, and amend and restate the Agreement to read as follows: 1.License to Use. The City hereby grants to the Association the license to use the Dog Park together with any and all parking now existing at Yorba Park, on a non-exclusive basis in common with public use thereof, during the Term and upon all of the terms, covenants and conditions set forth in this Agreement. At all times during the Term, the Dog Park shall be and remain open to the public and the Association shall not exclude, impede, hinder, restrict or alter in any way public access to the Dog Park. The license to use the Dog Park granted to the Association hereunder shall be only for the following uses: (a) Activities directly related to a dog exercise area; (b) City of Orange resident-related special events or other public interest events that adhere to the existing parameters of Yorba Park and the Dog Park and are approved in advance by approvals as may be required under the Orange Municipal Code, which approval may be subject to terms, covenants and conditions; and (c) Such other uses approved in writing by the Director. 2.Term. The term of the license to use the Dog Park granted to the Association hereunder shall commence on the Effective Date and expire on January 22, 2028, unless sooner terminated pursuant to any provision of this Agreement Extension Term"). 3.Termination. (a) The City shall have the right to terminate this Agreement and close the Dog Park to use by the Association and the general public at any time during the Extension Term for any reason upon the giving of not less than ninety (90) days prior wr . (1) Dog Park, the City hereby agrees to use its best efforts to assist the Association during the period of tim use by the Association upon request by the Association; provided, however, that the City shall not be obligated to find or commit another location for the Association or to open another dog exercise area to replace the Dog Park; provided, further that such efforts shall not include the expenditure of all information the Director may have respecting potential relocation sites (which information shall be made available by the Director to the Association upon written request); and (ii) communicating frequently with the Association during the period of time 3 (2) Moreover, if the Association so elects by giving notice to the City within the and store for a period no is defined in Section 7, below) owned by the Association and located at the Dog Park. (b) In addition, at the option of the City and upon written notice to the Association, the City shall have the right to terminate this Agreement and close the Dog Park to use by the defined in Section 13, below) by the Association or to the extent necessary to protect the welfare, health, or safety of City residents in the sole discretion of the City Council. Upon the happening of an uncured Default, the City shall have no obligation to find an alternative site for a dog exercise area for use by the As FF&E. (c) The Association shall have the right to terminate this Agreement at any time during the Term, including the Renewal Term, for any reason upon the giving of thirty (30) days prior written notice to the City. 4.Signs and Banners.The Association shall have no right to place, construct or maintain on or about Yorba Park or the Dog Park any permanent or temporary signs or banners unless (i) such signs or banners comply with all applicable City ordinances and other applicable laws, and (ii) the Director has given prior written consent in each instance. In addition, the City reserves the right to place, construct or maintain signs or banners on or about Yorba Park or the Dog Park in the City's sole discretion. 5.Maintenance and Repair. (a) The City hereby agrees, at its own sole cost and expense, to cause the Dog Park standards. (b) The Director may elect to close the Dog Park or portions thereof from time to time for temporary periods of time as may be necessary for maintenance, renewal, replacement, or restoration. Except in the case of an emergency, e.g. - inclement weather, excessive park damage, major infrastructure repairs, etc., the City shall give the Association written notice of any temporary closure not later than thirty (30) days prior to the scheduled temporary closure. (c) The Association hereby agrees, at its own sole cost and expense, to keep a sufficient supply of doggie bags in all doggie bag dispensers located at the Dog Park at all times during the Extension Term and to encourage members of the Association and the general public to observe the rules and regulations applicable to dog exercise areas, as promulgated from time to time by the City. 6.Improvements to the Dog Park. (a) Not later than forty-five (45) days following the Effective Date of the Extension Term and, thereafter, not later than forty-five (45) days following the first, second, third and fourth anniversaries of the commencement of the Extension Term, City staff and the Association shall 4 meet and jointly consider and cooperate in efforts to develop and mutually agree upon any additional maintenance items not presently required under the terms of the Original Agreement, including, but not limited to, re-seeding all or portions of the Dog Park, replacement of decomposed granite along walkways, re-sodding high traffic areas, and/or changes, alterations or improvements propose for the Dog Park. (b) For purposes of maintaining City documentation relating to the Dog Park, all dog park Improvements proposed to the City must be presented to the City, in writing, accompanied Improvements was approved. After receiving said documentation, the City will review the proposal and schedule a meeting with the Association President and at least one member of the Board of Directors to discuss the proposed Improvements. The City will make a final decision regarding the proposed Improvements after meeting with the Association representatives.. (c) The costs of any approved Improvements to the Dog Park proposed by the Association, including any design or other consultant services retained for the purpose of preparing plans, drawings and related documents, to which the City and Association agree, in writing, shall be paid by the City, subject to reimbursement by the Association to the extent agreed upon by the City and the Association. The City hereby agrees to and shall be responsible for the construction and installation of any Improvements to which the City and the Association agree. Upon completion of any Improvements to the satisfaction of the City, the City hereby agrees to and shall be responsible for maintenance and repair thereof in accordance with Section 5 of this Agreement. (d) Once agreement is reached, if at all, with respect to the Improvements and the cost sharing, the City and the Association will memorialize the agreement in the form of an amendment to this Agreement. The City Manager is hereby authorized to approve and execute amendments to this Agreement, in a form acceptable to the City Attorney, reflecting the agreement of the parties. (e) Notwithstanding the meet-and-confer arrangement set forth above, the City may elect, in its sole and absolute discretion, at any time during the Extension Term to construct or install Improvements to the Dog Park without any cost sharing by the Association; provided, however, that if the City and the Association fail to agree upon the sharing of the cost of any Improvements during the Term, the City shall not be considered to be in default of the Agreement. 7.Fixtures, Furnishings and Equipment. (a) The Association shall not make any alterations or install any fixtures, furnishings or equipment (the consent (which the Director may grant or withhold in his/her sole and absolute discretion, which approval may be subject to terms, covenants and conditions) to (i) such alteration or installation; (ii) any plans and specifications required by the Director for such alteration or installation; and (iii) the contractors, contracts and schedules for such alteration or installation. The Director may require the removal at any time of all or any part of any Association-owned FF&E made without the required consent of the Director. 5 (b) Except as otherwise provided in this Agreement, all FF&E paid for by the Association, pursuant to Section 6 of this Agreement, shall be the property of and owned by the Association. Unless otherwise instructed by the Association pursuant to Section 3 of this Agreement, the City may require that any or all such FF&E be removed upon termination of this Agreement. Unless the Association timely elects to have the City store its FF&E pursuant to Section 3 of this Agreement, all Association-owned FF&E shall become the property of the City and remain upon and be surrendered by the Association with the Dog Park upon termination of this Agreement. Likewise, if the Association fails to claim its FF&E upon the expiration of the one-year storage period described in Section 3 of this Agreement, all such Association-owned FF&E shall become the property of the City. 8.Insurance. Except as may otherwise be required by the City under the Orange Municipal Code for the own needs in procurement of insurance to protect the Association and its directors, officers, employees, agents, members and volunteers against claims for bodily injury, personal injury and property damage based upon, involving or arising out of the Association's use, occupancy or maintenance of the Dog Park and all areas appurtenant thereto. The limits of any insurance carried by the Association shall not limit the liability of the Association nor relieve the Association of any obligation hereunder. All insurance to be carried by the Association shall be primary to and not contributory with any similar insurance carried by the City, whose insurance shall be considered excess insurance only. The City will neither defend nor indemnify the Association should it be sued for any reason. 9.Assumption of Risk; Exemption of City from Liability. (a) The A Negative Declaration No. ENV 1674-01 Yorba Park Conceptual Master Plan, Geotechnical Site Assessment Report Former Yorba Landfill Orange, California, - generating capacity of Yorba Park. The City followed the recommendations of IT Corporation and installed a landfill gas extraction system at Yorba Park. The Association hereby acknowledges that it has read and understands the contents of the MND and the Site Assessment and the Hazardous Substance condition of certain areas underlying Yorba Park. (b) The Association assumes the risk during the term of this Agreement of injury or damage to any Association-owned FF&E installed at the Dog Park, whether such damage or injury is caused by or results from methane gas, water or rain, or from any other cause or conditions arising upon the Dog Park. (c) The City shall not be liable for any risk assumed by the Association. 10. Compliance; Termination. (a) The Director shall review this Agreement once each year, on or before each anniversary of the Effective Date ("Periodic Review"), in order to determine whether or not the 6 Association is out-of-compliance with any specific term or provision of this Agreement. At commencement of each Periodic Review, the Director shall notify the Association in writing that the Periodic Review will commence or has commenced. (b) Within thirty (30) days after receipt of the Director's notice that the Periodic Review will commence or has commenced, the Association shall demonstrate that it has, during the preceding twelve (12) month period, been in reasonable prima facie compliance with this Agreement. For purposes of this Agreement, the phrase "reasonable prima facie compliance" shall mean that the Association has acted in accordance with this Agreement. (c) If during any Periodic Review, the Director reasonably concludes that (i) the Association has not demonstrated that it is in reasonable prima facie compliance with this Agreement, and (ii) the Association is out of compliance with a specific, substantive term or provision of this Agreement, then the Director may issue and deliver to the Association a written notice of non-compliance ("Notice of Non-Compliance") detailing the specific reasons for non- compliance (including references to sections and provisions of this Agreement which have allegedly been breached) and a complete statement of all facts demonstrating such non- compliance. The Association shall have thirty (30) calendar days following its receipt of the Notice of Non-Compliance in which to cure said failure(s); provided, however, that if any one or more of the item(s) of non-compliance set forth in the Notice of Non-Compliance cannot reasonably be cured within said thirty (30) calendar day period, then the Association shall not be in breach of this Agreement if it commences to cure said item(s) within said thirty (30) day period and diligently prosecutes said cure to completion. Upon completion of each Periodic Review, the Director shall submit a report to the City Council if the Director determines that the Association has not satisfactorily demonstrated reasonable prima facie compliance with this Agreement, which report shall state what steps have been taken by the Director or what steps the Director recommends that the City subsequently take with reference to the alleged non-compliance. If the Director determines that the Association has demonstrated reasonable prima facie compliance with this Agreement, the Director will not be required to submit a report to the City Council. (d) If the Association fails to timely cure any item(s) of non-compliance set forth in a Notice of Non-Compliance, then the City shall have the right, but not the obligation, to initiate proceedings for the purpose of terminating this Agreement. Such proceedings shall be initiated by notice to the Association, followed by meetings between the City and the Association President and at least one member of the Associa Board of Directors for the purpose of good faith negotiations between the parties to resolve the dispute. If the Director determines to terminate this Agreement following a reasonable number of meetings and a reasonable opportunity for the Association to cure any non-performance, the Director shall give the Association written notice of its intent to so terminate this Agreement, specifying the precise grounds for termination and setting a date, time and place for a hearing on the issue before the City Council. At the hearing, the Association representative designated by the Board of Directors shall be given an opportunity to make a full and public presentation to the City Council. If, following the taking of evidence and hearing of testimony at said hearing, the City Council finds that the Association has not demonstrated compliance with this Agreement, and that the Association is out of material compliance with a specific, substantive term or provision of this Agreement, then the City may (unless the parties otherwise agree in writing) terminate this Agreement and close the Dog Park to further use by the Association and the general public. 7 (e) If at any time the Association reasonably concludes that (i) the City has not acted in prima facie compliance with this Agreement, and (ii) the City is out of compliance with a specific, substantive term or provision of this Agreement, then the Association may issue and deliver to the City written notice of the City's non-compliance, detailing the specific reasons for non-compliance, including references to sections and provisions of this Agreement which have allegedly been breached, and a complete statement of all facts demonstrating such non- compliance. The Association shall also meet with the Director as appropriate to discuss any alleged non-compliance on the part of the City. The City shall have thirty (30) calendar days following its receipt of the Notice of Non-Compliance in which to cure said failure(s); provided, however, that if any one or more of the item(s) of non-compliance set forth in the Notice of Non- Compliance cannot reasonably be cured within said thirty (30) calendar day period, then City shall not be in breach of this Agreement if it commences to cure said item(s) within said thirty (30) day period and diligently prosecutes said cure to completion. If the City fails to timely cure any item(s) of non-compliance se -compliance, then the Association shall have the right, but not the obligation, to terminate this Agreement. 11. Waiver and Release of Relocation Claims.If, in the event the termination of this Agreement, there will result the displacement of the Association or the Association-owned FF&E, the Association, on its behalf and on behalf of its representatives, successors and assigns, and all persons claiming through them or each of them, hereby irrevocably waives and releases any claims, demands, causes of action, whether known or unknown, fixed or contingent, against the City, and its employees, representatives, successors and assigns based upon, arising from, or relating to any claim for relocation benefits or assistance from the City which may be required by the Relocation Assistance Act (California Government Code Sections 7260 et seq.), the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 U.S.C. 4601 et seq.), and any other applicable federal, state or local enactment, regulation or practice providing for relocation the termination of occupancy or use of the Dog Park and this Agreement by the Association during the Extension Term. By waiving and forever releasing claims both known and unknown, the Association expressly waives any rights under California Civil Code Section 1542, which provides: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release which if known by him or her must have materially affected his or her settlement with the debtor." 12. Covenants and Conditions. The Association's performance of each of the Association's obligations under this Agreement is a condition as well as a covenant, and the Association's right to continue use of the Dog Park is conditioned upon such performance. (a) So long as this Agreement remains in effect, the Association will, unless the City otherwise consents in writing: 8 (1) Pay all sums due under this Agreement regardless of the Association's use of the Dog Park so long as this Agreement is in force with respect to the Dog Park and the City provides for the Dog Park to be available for Association use. (2) Not cause any Hazardous Substances to be generated, produced, brought upon, used, stored, treated or disposed of in or about the Dog Park. (3) Take and fulfill all actions and conditions necessary to remain a corporation in good standing with the California Secretary of State; preserve and keep in full force and effect its existence, rights and privileges as a 501(c)(3) non-profit corporation; and provide the City with . The Association shall provide the City with proof of 501(c)(3) non-profit status . (4) Maintain proper bank account(s) for the accumulation, protection and disbursement of funds donated on behalf of the Dog Park. The Association shall provide end of year financial statements to the City at yearly meetings, including but not limited to: income statement, balance sheet, statement of cash flows (if available), their December 31st year end bank statement, and annual tax returns. (5) Prepare and submit all tax forms required by the United States Internal Revenue Service and the State of California Franchise Tax Board for donated funds received by the Association. (6) Provide fiscal accountability to donors and the City for all funds and financial transactions related to the Association. (7) Purchase, install and maintain any City-approved FF&E and pay for all materials and supplies necessary to fulfill the Association Agreement, unless otherwise agreed to in writing by both parties. (8) Promptly notify the Director (or designee) of needed repairs and/or dangerous conditions in the Dog Park. (9) When requested by the Director, prepare reports and make presentations concerning the Dog Park to City staff or the City Council. (10) Handle public relations and media requests for Dog Park fundraisers and for other circumstances, when determined by the Director to be appropriate. (11) Order, purchase and restock supplies necessary for Dog Park users to keep the Dog Park clean and free of animal feces and trash, including, but not limited to, doggie bag dispensers,poop scoopers, shovels, etc., and keep bag dispensers full. (12) Conduct fund raising events when necessary, paying for all expenses incurred permits for special events. 9 (13) Work with the City to amend or change any Dog Park rules when deemed necessary by the Director. (14) Paying for the cost of relevant signage (including installation and replacement), pamphlets, flyers and newsletters, including any postage. (b) So long as this Agreement remains in effect, the City will, unless the Association shall otherwise consent in writing: (1) Provide the Association with adequate advance notice of Dog Park issues pending before the City Council to ensure that the Association will have sufficient time to prepare requested reports. If adequate notice has been received, the Association agrees to provide City staff, on the normal due date for inclusion in Council agenda packets, copies of any reports or correspondence it wishes to be included. (2) Establish and change from time to time, as deemed necessary, rules and regulations regarding the Dog Park. 13. Defaults; Remedies. (a) The Association shall be in default ("Default") under this Agreement: (1)share of costs or reimbursements required under this Agreement, or any portion thereof, for a period of ten (10) business days after written notice from the City; or (2) If the Association fails to perform or observe any of the covenants found in this Agreement applicable to it and such default is not remedied within thirty (30) days after written notice from the City; provided that if more than thirty (30) days are required to complete such performance, the Association shall not be in default if the Association commences such performance within the thirty (30) day period and thereafter diligently pursues its completion. The notice required by this Section is intended to satisfy any and all notice requirements imposed by law on the City and is not in addition to any such requirement. (b) Upon the occurrence of any Default by the Association, the City shall have the right, but not the obligation, to initiate proceedings for the purpose of terminating this Agreement in accordance with Section 10(d) of this Agreement. 14. Effect of Termination. Upon termination, the Association shall, without further notice or action, have no further license or right to use or occupy the Dog Park and the Association shall immediately vacate and remove any Association-owned property, subject, however, to the Ass 3 of this Agreement to have the City store its FF&E. 15. Time is of the Essence. Time is of the essence with respect to the performance of the covenants and agreements contained in this Agreement. 10 16. Governing Law and Venue. This shall be construed in accordance with and governed by the laws of the State of California and the Association agrees to submit to the jurisdiction of California courts. Venue for any dispute arising under this Agreement shall be in Orange County, California. 17. Assignment. The Association shall not assign or transfer all or any part of its interest in this Agreement without the City's prior written consent. 18. No Estate. The rights granted under this Agreement do not give the Association, and the Association shall not claim, any interest (other than the rights to use granted hereunder) or estate of any kind in any of the Dog Park or Yorba Park. Without limiting the generality of the foregoing, this is not a lease and upon the expiration or earlier termination of this Agreement with respect to any or all of the Dog Park, the Association shall have no further rights to use or occupy the Dog Park or Yorba Park and the City shall not be required to pursue an unlawful detainer action against the Association. 19. Entire Agreement. This Agreement shall constitute the entire agreement of the Parties hereto with respect to the subject matter hereof. 20. Non-Waiver. The failure of any party at any time to enforce a provision of this Agreement shall in no way constitute a waiver of the provision, nor in any way affect the validity of this Agreement or any part hereof or the right of such party thereafter to enforce each and every provision hereof. 21. Modification of Agreement. The terms, conditions and requirements of this Agreement or any part hereof, may be amended, modified, revised, supplemented or deleted only by mutual written agreement, signed by the parties. 22. Severability.If any terms or provisions of this Agreement shall be found to be void or contrary to law, such term or provision shall, but only to the extent necessary to bring this Agreement within the requirements of law, be deemed to be severable from the other terms and provisions hereof, and the remainder of this Agreement shall be given effect as if the parties had not intended the severed term herein. 23. Notice. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered (including by means of professional messenger service) or sent by registered or certified mail, postage prepaid, return receipt requested, and shall be deemed received upon the date of receipt thereof. To City:City of Orange 230 East Chapman Avenue Orange, California 92866 Attention: Director of Community Services 11 To Association:The Orange Dog Park Association P.O. Box 5967 Orange, CA 92863 Attention: President IN WITNESS WHEREOF, the City of Orange and the Orange Dog Park Association have caused this Amended and Restated Cooperative Agreement to be executed by its respective officers thereunto duly authorized as of the date first above written. THE ORANGE DOG PARK ASSOCIATION,CITY OF ORANGE, a municipal corporation a California nonprofit public benefit corporation *By:By: Printed Name: Thomas C. Kisela, Interim City Manager Title: *By:APPROVED AS TO FORM: Printed Name: Title: Mary E. Binning, City Attorney *NOTE:The City requires the following signature(s) on behalf of the Consultant: --(1) the Chairman of the Board, the President or a Vice-President, AND (2) the Secretary, the Chief Financial Officer, the Treasurer, an Assistant Secretary or an Assistant Treasurer. If only one corporate officer exists or one corporate officer holds more than one corporate office, please so indicate. OR --The corporate officer named in a corporate resolution as authorized to enter into this Agreement. A copy of the corporate resolution, certified by the Secretary close in time to the execution of the Agreement, must be provided to the City. President James Kushon Jennifer Franks Secretary RESOLUTION NO. 9775 (dated September 23, 2003) [Behind this sheet] B SITE PLAN DEPICTING DOG PARK [Behind this sheet] Insurance is afforded by the company indicated below: (Each a capital stock corporation) Great American Insurance Company Policy Number: EPP4029720 Policy Form Number:D16100 Item 1. Name of Organization:ORANGE DOG PARK ASSOCIATION DBA: YORBA PARK Mailing Address:960 N. TUSTIN STREET, SUITE #407 City, State, Zip Code:ORANGE, CA 92867 Attn:EXECUTIVE DIRECTOR Item 2. Policy Period: From 09/25/2022 To 09/25/2023 (Month, Day, Year) (Month, Day, Year) (Both dates at 12:01 a.m. Standard Time at the address of the Organization as stated in Item 1) Item 3. Aggregate Limit(s) of Liability for each Policy Year: (a) $ 1,000,000 for all Claims other than Claims for Employment Practices Wrongful Acts. (b) $ 10,000 Donor Data Loss Crisis Fund Sublimit of Liability. This limit is part of and not in addition to the Limit of Liability provided for in 3(a). (c) $ 1,000,000 for all Claims for Employment Practices Wrongful Acts. This limit is: part of and not in addition to the Limit of Liability provided for in 3(a). separate from and in addition to the Limit of Liability provided for in 3(a). (d) $150,000 FLSA Defense Sublimit of Liability. This limit is part of and not in addition to the Limit of Liability provided for in 3(c). Item 4. Retentions: Insuring Agreement A:$ 0 Each Claim Insuring Agreements B and/or C:$ 1,000 Each Claim Item 5. Premium: $ 2,060 Item 6. Endorsements Attached: D16548 D16712 (13) DTCOV IL7324 Item 7. Notices: All notices required to be given to the Insurer under this Policy shall be addressed to: Great American Insurance Companies Executive Liability Division P.O. Box 66943 Chicago, Illinois 60666 Item 8. Prior & Pending Litigation Date:09/25/2011 These Declarations along with the completed and signed Proposal Form and Nonprofit Solution Insurance Policy, shall constitute the contract between the Insureds and the Insurer. ExecPro sm DECLARATIONS for Nonprofit Solution Insurance Policy301E. Fourth Street, Cincinnati, OH 45202 D 16102 (01/09) THIS IS A CLAIMS MADE POLICY.READ IT CAREFULLY. It is understood and agreed that the following changes are made to the Policy: 1.Section III. is amended by the addition of the following: “TCPA Wrongful Act” shall mean any actual or alleged violation(s) of any federal, state or local laws or regulations pertaining to unsolicited or non-consensual communication, advertising or fundraising, through faxes, telephone calls, texting or any other medium, including, but not limited to the Telephone Consumer Protection Act; “Statutory Damages” shall mean any amounts imposed upon an Insured pursuant to the Telephone Consumer Protection Act of 1991 or any similar state or local law as such amounts relate to a TCPA Wrongful Act. 2.Section III.I.(1) is amended by the addition of the following: This section shall also not apply to Statutory Damages. 3.Section III.L. is amended by the addition of the following: Personal Injury Wrongful Act shall not include any TCPA Wrongful Act; 4.Section III.R. is amended by the addition of the following: Wrongful Act shall also mean TCPA Wrongful Act; 5.Section IV.D. is amended by the addition of the following: Part (3) of this exclusion shall also not apply to any TCPA Wrongful Act; 6.Section V. is amended by the addition of the following: Insured: ORANGE DOG PARK ASSOCIATION DBA: YORBA PARK Policy Period: 9/25/2022 to 9/25/2023 Policy Number: EPP4029720 Countersigned by:Endorsement Effective Date:9/25/2022 Authorized Representative D 16548 (01/16)Endorsement: 1 Page 1 of 2 SUBLIMIT OF COVERAGE FOR TELEPHONE CONSUMER PROTECTION ACT CLAIMS ExecPro sm Nonprofit Solution The Insurer’s maximum aggregate liability for all Loss in connection with Claims made against any Insured for a TCPA Wrongful Act shall be $ 100,000 for each Policy Year, which amount is part of, and not in addition to, the maximum Limit of Liability shown in Item 3.(a) of the Declarations regardless of the number of Claims during such Policy Year. In the event a Claim involves a TCPA Wrongful Act and a Personal Injury Wrongful Act, such Claim shall be considered a Claim for a TCPA Wrongful Act and shall be subject to the TCPA Sublimit of Liability. 7.Section V.C. is amended by the addition of the following: With respect to any Claim for a TCPA Wrongful Act,Costs of Defense incurred either by the Insurer or the Insured shall be considered Loss and, therefore, subject to the TCPA Sublimit of Liability and the Retention. 8.Item 3. of the Declarations is amended by the addition of the following: $ 100,000 TCPA Sublimit of Liability for Claims for any TCPA Wrongful Act for each Policy Year. 9.Item 4. of the Declarations is amended by the addition of the following: $ 1,000 Retention applicable to Insuring Agreements I.B. and I.C. for any Claim for TCPA Wrongful Act. SUBLIMIT OF COVERAGE FOR TELEPHONE CONSUMER PROTECTION ACT CLAIMS ExecPro sm Nonprofit Solution D 16548 (01/16)Endorsement:Page 2 of 2 Nothing herein contained shall be held to vary, alter, waive or extend any of the terms, conditions, provisions, agreements or limitations of the above mentioned Policy other than as above stated. It is understood and agreed that the following changes are made to the Policy: AMENDMENT TO LIMIT OF LIABILITY Additional A-Side Limit of Liability It is understood and agreed that Section V. is amended by the addition of the following: Notwithstanding anything in this Policy to the contrary, the Policy provides an Additional Limit of Liability dedicated for directors, trustees, officers, regents, governors and members of the Board of Managers. This Additional Limit of Liability shall be $250,000 , which amount is in addition to, and not part of, the aggregate Limit of Liability as set forth in Item 3. of the Declarations. This Additional Limit of Liability is available solely for Loss resulting from any Claim against any director, trustee, officer, regent, governor and/or member of the Board of Managers covered under Section I.A. of this Policy, and: (1)Any Loss resulting from any Claim against any director, trustee, officer, regent, governor and/or member of the Board of Managers covered under Section I.A. of this Policy shall first be paid under the aggregate Limit of Liability as set forth in Item 3. of the Declarations, and such Limit of Liability must be completely exhausted by payment of Loss under Section I.A., I.B., and/or I.C. of this Policy before Loss shall be paid under the dedicated Additional Limit of Liability, and (2)The dedicated Additional Limit of Liability shall be excess of any insurance available that is specifically excess of this Policy, and such excess insurance must be completely exhausted by payment of Loss thereunder before the Insurer shall have any obligations to make payment on account of the dedicated Additional Limit of Liability GREAT AMERICAN NONPROFIT EAGLE ENDORSEMENT ExecPro sm Nonprofit Solution Insured: ORANGE DOG PARK ASSOCIATION DBA: YORBA PARK Policy Period: 9/25/2022 to 9/25/2023 Policy Number: EPP4029720 Countersigned by:Endorsement Effective Date:9/25/2022 Authorized Representative D 16712(13) (11/16)Endorsement: 2 Page 1 of 7 TERRORISM TRAVEL REIMBURSEMENT FUNDS 1.Section III. is amended by the addition of the following: “Certified Act of Terrorism”shall mean an act that is certified by the Secretary of the Treasury in accordance with the provisions of the Terrorism Risk Insurance Act to be an act of terrorism pursuant to such Act. “Emergency Travel Expenses” shall mean hotel expenses incurred which directly result from the cancellation of a scheduled transport, by train or air, by a commercial transportation carrier resulting directly from and within forty-eight (48) hours of a Certified Act of Terrorism, and the increased amount incurred in air or train fare which may result from rescheduling comparable transport, to replace a similarly scheduled transport canceled by a commercial transportation carrier in direct response to a Certified Act of Terrorism. 2.Section VIII. is amended by the addition of the following: Terrorism Travel Reimbursement Fund In the event any current director, trustee, officer, regent, governor or member of the Board of Managers of the Organization or any Subsidiary advises the Insurer of Emergency Travel Expenses incurred during the Policy Period, the Insurer shall reimburse the Emergency Travel Expenses. This coverage extension shall be subject to the Terrorism Travel Reimbursement Fund Limit of Liability stated below, provided, however, no Retention shall apply. 3.Item 3. of the Declarations is amended by the addition of the following: $ 50,000 Aggregate Terrorism Travel Reimbursement Fund Limit of Liability for each Policy Year. This Limit of Liability shall be in addition to the Aggregate Limit of Liability provided for in Item 3. of the Declarations. 4.Provided the current director, trustee, officer, regent, governor or member of the Board of Managers of the Organization or any Subsidiary advises the Insurer of Emergency Travel Expenses incurred during the Policy Period and provides written evidence of such amounts, the Insurer shall promptly reimburse such individual within thirty (30) days. Such notice and written evidence shall be provided to the Insurer by e-mailing the Insurer at: eldclaims@gaig.com. WORKPLACE VIOLENCE COUNSELING FUND 1.Section III. is amended by the addition of the following: “Workplace Violence Act” shall mean any actual or alleged intentional and unlawful use of, or threat to use, deadly force with intent to cause harm to others occurring at any building, facility or property occupied by the Organization or any Subsidiary in the conduct of its operations. GREAT AMERICAN NONPROFIT EAGLE ENDORSEMENT ExecPro sm Nonprofit Solution D 16712(13) (11/16)Endorsement:Page 2 of 7 2.Section VIII. is amended by the addition of the following: Workplace Violence Counseling Fund In the event that a Workplace Violence Act occurs during the Policy Period and the Organization advises the Insurer of such Workplace Violence Act, the Insurer shall, subject to prior written consent, reimburse the Organization reasonable expenses incurred for the emotional counseling of Insured Persons. This coverage extension is subject to the Workplace Violence Counseling Fund Limit of Liability set forth below, provided, however, no Retention shall apply. 3.Item 3. of the Declarations is amended by the addition of the following: $ 50,000 Aggregate Workplace Violence Counseling Fund Limit of Liability for each Policy Year. This Limit of Liability shall be in addition to the Aggregate Limit of Liability provided for in Item 3. of the Declarations. 4.The Organization shall advise the Insurer of such Workplace Violence Act during the Policy Period by e-mailing the Insurer at: eldclaims@gaig.com. The consent of the Insurer shall not be unreasonably withheld. INCIDENT CRISIS FUND 1.Section III. is amended by the addition of the following: “Crisis” shall mean the public announcement that an Incident occurred at any building, facility or property occupied by the Organization or any Subsidiary in the conduct of its operations. “Incident” shall mean an accident or other event resulting in the death or Serious Bodily Injury to three or more persons. “Serious Bodily Injury” shall mean an injury to a person that creates a substantial risk of death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. 2.Section VIII. is amended by the addition of the following: Incident Crisis Fund The Insurer shall, subject to prior written consent, reimburse the Organization reasonable expenses incurred to hire an image consulting company for the purpose of reducing damage to reputation suffered by the Organization or any Subsidiary arising from a Crisis during the Policy Period. This coverage extension is subject to the Incident Crisis Fund Limit of Liability set forth below, provided, however, no Retention shall apply. GREAT AMERICAN NONPROFIT EAGLE ENDORSEMENT ExecPro sm Nonprofit Solution D 16712(13) (11/16)Endorsement:Page 3 of 7 3.Item 3. of the Declarations is amended by the addition of the following: $ 50,000 Aggregate Incident Crisis Fund Limit of Liability for each Policy Year. This Limit of Liability shall be in addition to the Aggregate Limit of Liability provided for in Item 3. of the Declarations. 4.The Organization shall advise the Insurer of such Crisis during the Policy Period by e-mailing the Insurer at: eldclaims@gaig.com. The consent of the Insurer shall not be unreasonably withheld. AMENDMENT TO PERSONAL PROFIT EXCLUSION Section IV.A. is deleted and replaced with the following: A.brought about or contributed to by: (1)any Insureds gaining any personal profit, financial advantage or remuneration to which they were not legally entitled; or (2)the deliberately fraudulent or criminal acts of any Insureds; provided, however, this exclusion shall not apply unless and until there is a final non-appealable adjudication as to such conduct in the underlying proceeding. This exclusion shall not apply to coverage provided under Insuring Agreement I.B.; AMENDMENT TO OTHER INSURANCE EXCLUSION Section IV.B. is amended by the addition of the following: If this Policy includes coverage for any Claim for Employment Practices Wrongful Acts, such coverage shall be deemed primary over any similar coverage maintained either by the Organization or any Subsidiary. AMENDMENT TO INSURED vs. INSURED EXCLUSION Section IV.H. is deleted and replaced with the following: H.by, or for the benefit of, or at the behest of the Organization or any Subsidiary or any entity which controls, is controlled by, or is under common control with the Organization or any Subsidiary, or any person or entity which succeeds to the interests of the Organization or any Subsidiary, provided, however, this exclusion shall not apply to any Claim, if such Claim: (1)is for an Employment Practices Wrongful Act brought by an Insured Person; GREAT AMERICAN NONPROFIT EAGLE ENDORSEMENT ExecPro sm Nonprofit Solution D 16712(13) (11/16)Endorsement:Page 4 of 7 (2)is brought by the receiver, conservator, creditors’ committee, liquidator, trustee, rehabilitator, examiner or similar official of the Organization, if any, in the event of Financial Insolvency; (3)is brought or maintained derivatively, including any Claim brought or maintained under any federal, state, local or foreign whistleblower law or whistleblower provision of any law if the individual bringing such Claim is acting totally independent of, and without the solicitation, assistance, active participation or intervention of any director, officer, trustee, regent, governor or member of the Board of Managers of the Organization or any Subsidiary; (4)is brought by any former director, officer, trustee, regent, or governor of the Organization or any Subsidiary who has not served in that capacity with the Organization or any Subsidiary for at least two (2) years prior to the commencement of such Claim, and is acting totally independent of, and without the solicitation, assistance, active participation or intervention of any director, officer, trustee, regent, governor or member of the Board of Managers of the Organization or any Subsidiary. COSTS OF DEFENSE SUBLIMIT FOR BREACH OF EMPLOYMENT AGREEMENT CLAIMS It is understood and agreed that the Policy is amended as follows: 1.Section IV.I. is deleted and replaced with the following: I.for any actual or alleged breach by the Organization or any Subsidiary of an express or implied contract, provided, however, this exclusion shall not apply to: (1)employment-related obligations which would have attached absent such contract or agreement; or (2)Costs of Defense if such Claim is for any actual or alleged breach of an employment agreement and such coverage for Costs of Defense shall be subject to the Sublimit stated below. 2.Item 3. of the Declarations is amended by the addition of the following: $100,000 Sublimit for Costs of Defense for Claims for Breach of an Employment Agreement. This Sublimit is part of and not in addition to the Limit of Liability set forth in Item 3. of the Declarations. GREAT AMERICAN NONPROFIT EAGLE ENDORSEMENT ExecPro sm Nonprofit Solution D 16712(13) (11/16)Endorsement:Page 5 of 7 AMENDMENT TO COSTS OF DEFENSE AND SETTLEMENTS Section VI.B. is deleted and replaced with the following: B.The Insurer has the right to investigate and settle any Claim as it deems expedient. If the Insurer recommends a settlement and the Insured refuses to consent thereto, the Insurer’s liability for such Claim is limited to the amount in excess of the Retention, which the Insurer would have contributed had the Insured consented to the settlement, the Costs of Defense covered by the Policy and incurred prior to the date of such refusal to settle, and eighty percent (80 %) of any additional covered Loss, including Costs of Defense, incurred subsequent to such refusal and subject to the Limit of Liability. If the Insured refuses to consent to a settlement as contemplated above,Costs of Defense shall be subject to the Retention. 100% COSTS OF DEFENSE ALLOCATION Section VI. is amended by the addition of the following: C.If a Claim made against any Insured includes both covered and uncovered matters, the Insureds and the Insurer recognize that there must be an allocation between insured Loss and uninsured loss, therefore, the Insureds and the Insurer shall allocate such amount as follows: 1.with respect to Costs of Defense, one hundred percent (100%) of all Costs of Defense which must otherwise be allocated as described above shall be allocated to the insured Loss; and 2.with respect to Loss other than Costs of Defense, the Insurer and the Insureds shall use their best efforts to agree upon a fair and proper allocation of such amounts between insured Loss and uninsured loss. AMENDMENT TO SUBROGATION Section IX.H. is deleted and replaced with the following: H.In the event of payment under this Policy, the Insurer shall be subrogated to all the Insureds’ rights of recovery. The Insureds shall do everything necessary to secure such rights, including the execution of such documents necessary to enable the Insurer to effectively bring suit in the name of any Insured. In no event, however, shall the Insurer exercise its rights to subrogation against an Insured Person under this Policy unless the exclusion set forth in Section IV.A. of the Policy applies to such Insured Person. GREAT AMERICAN NONPROFIT EAGLE ENDORSEMENT ExecPro sm Nonprofit Solution D 16712(13) (11/16)Endorsement:Page 6 of 7 In the event the Insurer shall for any reason pay indemnifiable Loss on behalf of an Insured Person, the Insurer shall have the contractual right hereunder to recover from the Organization or any Subsidiary the amount of such Loss equal to the amount of the Retention not satisfied by the Organization or any Subsidiary and shall be subrogated to rights of the Insured Persons hereunder. INCONSISTENCY COVERAGE Section IX. is amended by the addition of the following: Inconsistency Coverage In the event of an inconsistency between this endorsement, or a state amendatory endorsement, and any other endorsement attached to this Policy, the Insurer, as permitted by law, shall apply those terms and conditions which are more favorable to the Insureds. GREAT AMERICAN NONPROFIT EAGLE ENDORSEMENTGREAT AMERICAN NONPROFIT EAGLE ENDORSEMENT ExecPro sm Nonprofit Solution D 16712(13) (11/16)Endorsement:Page 7 of 7 Nothing herein contained shall be held to vary, alter, waive or extend any of the terms, conditions, provisions, agreements or limitations of the above mentioned Policy other than as above stated. Subject to all terms and conditions of this Policy, including any follow-form provisions, this Policy is amended by the addition of the following: CERTIFIED ACTS OF TERRORISM COVERAGE "Certified Act of Terrorism" means an act that is certified by the Secretary of the Treasury, in concurrence with the Secretary of Homeland Security and the Attorney General of the United States, to be an act pursuant to the federal Terrorism Risk Insurance Act. The criteria contained in the Terrorism Risk Insurance Act for a “Certified Act of Terrorism” include the following: 1.the act resulted in insured losses in excess of $5 million in the aggregate attributable to all types of insurance subject to the Terrorism Risk Insurance Act; and 2.the act is a violent act or an act that is dangerous to human life, property or infrastructure and is committed by an individual or individuals, as part of an effort to coerce the civilian population of the United States or to influence the policy or affect the conduct of the United States government by coercion. If the aggregate insured losses attributable to terrorist acts certified under the Terrorism Risk Insurance Act exceed $100 billion in a calendar year in the aggregate and the Insurer has met its deductible under the Terrorism Risk Insurance Act, the Insurer shall not be liable for the payment of any portion of the amount of such losses that exceeds $100 billion, and in such case insured losses up to that amount are subject to pro rate allocation in accordance with procedures established by the Secretary of the Treasury. It is understood and agreed that the Premium section of the Declarations is amended by the addition of the following: Terrorism Premium: $ 0.00 The Policyholder Disclosure Offer of Terrorism Coverage is attached to and is to be considered as incorporated in and constituting a part of this Policy. This coverage shall not apply to any commercial crime or errors & omissions coverages that may be included in this policy. This endorsement does not extend any additional coverage or otherwise change the terms and conditions of any coverage under this Policy. Insured: ORANGE DOG PARK ASSOCIATION DBA: YORBA PARK Policy Period: 9/25/2022 to 9/25/2023 Policy Number: EPP4029720 Countersigned by:Endorsement Effective Date:9/25/2022 Authorized Representative DTCOV (02/15)Endorsement: 3 Page 1 of 1 TERRORISM COVERAGE ENDORSEMENT CAP ON LOSS FROM CERTIFIED ACTS This insurance does not apply to the extent that trade or economic sanctions or other laws or regulations prohibit us from providing insurance. Insured: ORANGE DOG PARK ASSOCIATION DBA: YORBA PARK Policy Period: 9/25/2022 to 9/25/2023 Policy Number: EPP4029720 Countersigned by:Endorsement Effective Date:9/25/2022 Authorized Representative IL 73 24 (Ed. 08/12)Endorsement: 4 Page 1 of 1 ECONOMIC AND TRADE SANCTIONS CLAUSE DTDIS (09/20) The Terrorism Risk Insurance Act establishes a program within the Department of the Treasury, under which the federal government shares, with the insurance industry, the risk of loss from future terrorist attacks. The Act applies when the Secretary of the Treasury certifies that an event meets the definition of an act of terrorism. The Act provides that, to be certified, an act of terrorism must cause losses of at least five million dollars and must have been committed by an individual or individuals as part of an effort to coerce the government or population of the United States. The United States Government, Department of the Treasury, will pay a share of terrorism losses insured under the federal program. The federal share equals 80% beginning on January 1, 2020, of that portion of the amount of such insured losses that exceeds the applicable insurer retention. However, if aggregate insured losses attributable to terrorist acts certified under the Terrorism Risk Insurance Act exceed $100 billion in a calendar year, the Treasury shall not make any payment for any portion of the amount of such losses that exceeds $100 billion. If aggregate insured losses attributable to terrorist acts certified under the Terrorism Risk Insurance Act exceed $100 billion in a calendar year and we have met our insurer deductible under the Terrorism Risk Insurance Act, we shall not be liable for the payment of any portion of the amount of such losses that exceeds $100 billion, and in such case insured losses up to that amount are subject to pro rata allocation in accordance with procedures established by the Secretary of the Treasury. In accordance with the Terrorism Risk Insurance Act, we are required to offer you coverage for losses resulting from an act of terrorism that is certified under the federal program as an act of terrorism. The policy's other provisions will still apply to such an act. This coverage shall not apply to any commercial crime coverage that may be included in this policy. Terrorism coverage for acts of terrorism that are certified under the federal program as an act of terrorism is included for no additional premium. Nonetheless, if you would like to reject such Terrorism coverage, please provide Great American written confirmation of such, and an exclusion will be attached to your policy. This coverage shall not apply to any commercial crime or errors & omissions coverages that may be included in this policy. POLICYHOLDER DISCLOSURE OFFER OF TERRORISM COVERAGE EXECPRO®POLICY Great American Insurance Group, 301 E Fourth Street, Cincinnati, OH 45202. Insurance is underwritten by Great American Insurance Company, a licensed insurer in 50 states and DC. Great American Insurance Company is the owner of the following registered service marks: the Great American Insurance Group eagle logo, and the word marks ExecPro®, Great American®, and Great American Insurance Group®. ©2011 Great American Insurance Company. All rights reserved. 1340-2-ELD (10/11) GreatAmericanELD.com Employment Practices Risk Management Program Your Great American ExecPro®Policy gives you access to the following Jackson Lewis Risk Management Program Jackson Lewis “”Hotline Service National law firm Jackson Lewis is available for complimentary, confidential telephone consultation on basic workplace employment topics via the toll-free number. Through this “hotline”, you can obtain guidance with respect to best practices for: Preserving employment-at-will status Managing medical leaves of absence Developing an open-door problem resolution procedure Reporting and investigating allegation of harassment or discrimination Eligibility standards for overtime pay under the Fair Labor Standards Act and state laws Developing a program to post opportunities for transfers and promotions to avoid class action claims Other basic human resources issues Reducing Workplace Claims Guide Via the “hotline” number, you can request a copy of Jackson Lewis’Reducing the Risk of Employment Practices Liability Claims Guide. This guide contains general information about diverse workplace law issues such as: Legal basis for employment claims Considerations in setting company policies and procedures Hiring process and pre-employment testing Complying with the Family and Medical Leave Act Conducting effective discharge and discipline Addressing reports of harassment in the workplace Maintaining personal records Establishing a code of conduct to help prevent employee misconduct Preventive Strategies Newsletter Via the “hotline” number, you can subscribe to Jackson Lewis’ complimentary national and regional e-bulletins, which provide regular analysis and commentary about legal, legislative and political developments that affect the law of the workplace. Jackson Lewis Training Session Educational seminars and management training about compliance with federal equal employment laws and other risk management services are offered by Jackson Lewis to policyholders at a special rate. For further details, please call the “hotline” number. Special Rates Jackson Lewis will offer special billing rates to ExecPro® policyholders to assist in developing preventive practices, preparing employee handbooks and training supervisors. To access the Jackson Lewis “hotline” or if you have further questions about the program, please call this toll-free number. 1 (888) 544 8320 Executive Liability Division 1515 Woodfield Road, Suite 500 Schaumburg, IL 60173 847 330 6750 847 330 3750 Claims Fax eldclaims@gaig.com www.GreatAmericanELD.com Jackson Lewis LLP 58 South Service Road, Suite 410 Melville, NY 11747 631 247 0404 ext. 4722 631 247 0425 or 631 247 0417 fax siegelp@jacksonlewis.com www.JacksonLewis.com