HomeMy WebLinkAbout10 - OCTA Master Funding AgreementCITY OF
z NEWPORT BEACH
C9�FO0.HP City Council Staff Report
Agenda Item No. 10
September 13, 2011
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Public Works Department
Stephen G. Badum, Public Works Director
949 - 644- 3311,sbadum @newportbeachca.gov
PREPARED BY: Andy Tran
APPROVED: :)� 0.
TITLE: Approval of a Master Funding Agreement with Orange County
Transportation Authority for the Renewed Measure M
ABSTRACT:
Orange County voters approved the renewal of Measure M (M2) on November 7, 2006,
which provides funding for transportation facilities and services for the next thirty years
starting April 1, 2011. In order to be eligible for this funding program, local agencies are
required to enter into a Master Funding Agreement with the Orange County
Transportation Authority (OCTA).
RECOMMENDATION:
Approve and execute Master Funding Agreement No. C -1 -2776 with OCTA.
FUNDING REQUIREMENTS:
There is no fiscal impact related to this item.
DISCUSSION:
The original Measure M provided funding for transportation facilities and services from
1991 to 2011. Measure M revenue was generated from the one -half percent sales tax
in Orange County. M2 is a multi - billion dollar program extension of the original Measure
M and will start in 2011 and end in 2041. M2 provides funding for Orange County local
agencies via the Comprehensive Transportation Funding Program (CTFP) which is
administered by OCTA. In order to participate in CTFP, local agencies are required to
execute the Master Funding Agreement No. C -1 -2776. Local agencies are also
obligated to meet all the requirements outlined in the M2 Eligibility Guidelines and CTFP
Guidelines.
Approval of a Master Funding Agreement with Orange County Transportation Authority
for the Renewed Measure M
September 13, 2011
Page 2
In addition to the one project identified on the M2 CTFP Master Funding Agreement
Project List (Attachment A of the Agreement), the City of Newport Beach receives
annual funding allocations through the Fair Share category. Apportionment of Fair
Share funds are based on a combination of population, taxable sales, and miles of
roadway on the county Master Plan of Arterial Highways. The projected apportionment
for the City of Newport Beach is approximately $1.5 million each fiscal year for the next
six fiscal years.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will
not result in a direct or reasonably foreseeable indirect physical change in the
environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378)
of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it
has no potential for resulting in physical change to the environment, directly or
indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
Submitted by:
f LLO4III I ICI I W. M.
iwaz5iei runamg Agreement No. C -1 -2776
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MASTER FUNDING AGREEMENT NO. C -1 -2776
BETWEEN
ORANGE COUNTY TRANSPORTATION AUTHORITY
AND
CITY OF NEWPORT BEACH
FOR
M2 COMPREHENSIVE TRANSPORTATION FUNDING PROGRAMS
THIS AGREEMENT is effective this day of 2011, by and
between the Orange County Transportation Authority, 550 South Main Street, P.O. Box 14184, Orange,
California 92863 -1584, a public corporation of the State of California (hereinafter referred to as
"AUTHORITY "), and the City of Newport Beach, 3300 Newport Boulevard, Newport Beach, CA 92663,
a municipal corporation (hereinafter referred.to as "AGENCY ").
RECITALS:
WHEREAS, Voters approved Renewed Measure M (M2) on November 7, 2006; and
WHEREAS, Orange County Local Transportation Authority Ordinance No. 3 outlines the M2
Transportation Ordinance and Investment Plan to fund transportation facility and service improvement
programs for a period of thirty years commencing on April 1, 2011; and
WHEREAS, AUTHORITY and AGENCY agree that M2 funding is subject to AGENCY fulfilling
M2 eligibility requirements; and
WHEREAS, AUTHORITY's Board of Directors approved the Renewed Measure M Eligibility
Guidelines - Local Agency Preparation Manual on January 25, 2010 and subsequent amendments on
March 14, 2011 and April 11, 2011; and
WHEREAS, AUTHORITY's Board of Directors approved the Comprehensive Transportation
Funding Programs (CTFP) Guidelines on March 22, 2010; and
WHEREAS, AUTHORITY will periodically update the Renewed Measure M2 Eligibility
Guidelines - Local Agency Preparation Manual and the CTFP Guidelines whereby the most recent
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MASTER FUNDING AGREEMENT NO. C -1 -2776
update is incorporated herein by reference; and
WHEREAS, AUTHORITY has approved AGENCY's competitive project(s) (hereinafter referred
to as "PROJECT(s) ") as specified in Attachment A "Projects List" to receive funding under the CTFP;
and
WHEREAS, AUTHORITY has determined that AGENCY's PROJECT(s) has met the
requirements of and is eligible under the CTFP Guidelines; and
WHEREAS, AGENCY's "Project List" may be amended to include new projects with each
competitive call for projects and will be incorporated by Letter Agreement executed by both parties and
incorporated herein; and
WHEREAS, the Letter Agreement may include additional requirements for PROJECT(s) funded
with sources other than M2 or Local Fair Share Net Revenues sources; and
WHEREAS, AUTHORITY and AGENCY agree that Local Fair Share Program Net Revenues
are distributed on a formula basis to eligible jurisdictions; and
WHEREAS, payment terms for this Master Funding Agreement will be in accordance with
Chapter 10 of the CTFP Guidelines; and
WHEREAS, this Master Funding Agreement defines the specific terms and conditions and
funding responsibilities between AUTHORITY and AGENCY for CTFP and Local Fair Share Program
Net Revenues; and
WHEREAS, AUTHORITY's Board of Directors approved this Master Funding Agreement on
June 27, 2011; and
follows:
WHEREAS, the AGENCY's City Council approved this Agreement on the day of
2011;
NOW, THEREFORE, it is mutually understood and agreed by AUTHORITY and AGENCY as
ARTICLE 1. COMPLETE AGREEMENT
A. This Agreement, including any attachments incorporated herein and made applicable by
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MASTER FUNDING AGREEMENT NO. C -1 -2776
1 reference, constitutes the complete and exclusive statement of the term(s) and conditions(s) of this
2 agreement between AUTHORITY and AGENCY and it supersedes all prior representations,
3 understandings, and communications. The invalidity in whole or in part of any term or condition of this
4 Agreement shall not affect the validity of other term(s) or conditions(s) of this Agreement. The above
5 referenced Recitals are true and correct and are incorporated by reference herein.
6 B. AUTHORITY'S failure to insist on any instance(s) of AGENCY's performance of any
7 term(s) or conditions) of this Agreement shall not be construed as a waiver or relinquishment of
6 AUTHORITY's right to such performance or to future performance of such term(s) or condition(s), and
g AGENCY's obligation in respect thereto shall continue in full force and effect. Changes to any portion of
10 this Agreement shall not be binding upon AUTHORITY except when specifically confirmed in writing by
11 an authorized representative of AUTHORITY by way of a written amendment to this Agreement and
12 issued in accordance with the provisions of this Agreement.
13 C. AGENCY's failure to insist on any instance(s) of AUTHORITY's performance of any
14 term(s) or conditions) of this Agreement shall not be construed as a waiver or relinquishment of
15 AGENCY's right to such performance or to future performance of such term(s) or condition(s), and
16 AUTHORITY's obligation in respect thereto shall continue in full force and effect. Changes to any
17 portion of this Agreement shall not be binding upon AGENCY except when specifically confirmed in
18 writing by an authorized representative of AGENCY by way of a written amendment to this Agreement
19 and issued in accordance with the provisions of this Agreement.
20 ARTICLE 2. SCOPE OF AGREEMENT
21 This Agreement specifies the roles and responsibilities of both AUTHORITY and AGENCY as
22 they pertain to the subjects and projects addressed herein. Both AUTHORITY and AGENCY agree.
23 that each will cooperate and coordinate with the other in all activities covered by this Agreement and
24 any other supplemental agreements, including Letter Agreements, .which may be required to facilitate
25 purposes thereof.
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MASTER FUNDING AGREEMENT NO. C -1 -2776
1 ARTICLE 3. RESPONSIBILITIES OF AUTHORITY
2 AUTHORITY agrees to the following responsibilities for funding of PROJECT(s):
3 A. AUTHORITY shall allocate M2 Net Revenues as specified in Ordinance No. 3 and pay
,;'4 AGENCY in accordance with the policies and procedures contained in the CTFP manual and
"5 AUTHORITY's Board of Directors approved PROJECT budgets.
6 B. AUTHORITY shall provide guidance and oversight of the M2, state and federal funds in
7 compliance with M2 eligibility guidelines, CTFP Guidelines, state and federal funding requirements and
g allocation and reporting requirements.
9 C. Within thirty (30) days of receipt of an acceptable initial payment CTFP invoice and
10 within sixty (60) days for an acceptable final payment invoice for eligible expenditures, AUTHORITY
11 shall, in accordance with Chapter 10 of the CTFP Guidelines, remit to AGENCY the required
12 reimbursement for applicable planning, environmental, engineering, right -of -way and construction
13 activities.
14 D. AUTHORITY shall pay Net Revenues allocated for the Local Fair Share Program to
15 eligible AGENCY within sixty (60) days of receipt by AUTHORITY.
16 E. AUTHORITY shall process any required Federal Transportation Improvement Program
'17 (FTIP) amendments, Subject to state and federal regulations and guidelines prepared by the Southern
18 California Association of Governments.
19 F. At the request of AGENCY, AUTHORITY shall, in accordance with AUTHORITY
20 specification and no cost to the AGENCY excluding installation and removal expenses, provide signage
21; for all construction PROJECT(s) that are in excess of FIVE HUNDRED THOUSAND DOLLARS
22 ($500,000) and exceed a ninety (90) day construction schedule.
23 G. AUTHORITY, or agents of AUTHORITY, may upon close -out of each PROJECT(s)
24 under this Agreement, perform an audit and or technical review to ensure that CTFP Guidelines policies
25 and procedures were followed. Such audit shall be performed within. one hundred and eighty (1 80)
26 days of AUTHORITY receiving the final report for each PROJECT(s). If the audit or technical review
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MASTER FUNDING AGREEMENT NO. C -1 -2776
1 determines that any of the activities performed are ineligible for CTFP funding, AGENCY must return
2 the amount of funding used to perform the ineligible activity to AUTHORITY in accordance with Article
3 4.G.
4 ARTICLE 4. RESPONSIBILITIES OF AGENCY
5 AGENCY agrees to the following responsibilities for PROJECT(s):
6 A. AGENCY or AGENCY's designee will act as the lead agency for all phases of the
7 PROJECT(s) identified in Attachment A, approved for M2 funding.
g B. AGENCY agrees that M2 funding is subject to AGENCY meeting all of the requirements
g outlined in the M2 Eligibility Guidelines and CTFP Guidelines.
10 C. AGENCY agrees to implement and complete PROJECT(s) funded under this
11 Agreement in accordance with the CTFP Guidelines, M2 Eligibility requirements and application
12 submitted to AUTHORITY.
13 D. AGENCY agrees to submit all PROJECT information to the Federal Transportation
14 Improvement Program and OCFundTracker during semi - annual reviews and as requested by the
15 AUTHORITY in accordance with the prescribed deadlines.
16 E. AGENCY agrees to obligate funds in the programmed year in accordance with the
17 CTFP Guidelines and adhere to any additional requirements identified in any and all Letter
18 Agreement(s) amended hereto.
19 F. AGENCY agrees to enter into and required Letter Agreement for PROJECT(s) approved
20 by the Board to define specific funding and reporting requirements.
2:1 G. AGENCY shall return funds expended on activities, other than those approved by the
22 AUTHORITY's Board of Directors, within thirty (30) day's of AUTHORITY's written demand. Any
23 AGENCY which uses funds for other than transportation purposes shall be deemed ineligible to receive
24 funds for a period of five (5) years.
25 H. AGENCY agrees to dispose of any acquired right -of -way in excess of the required
26 transportation use. Excess right -of -way must be identified at the time of initial payment submittal and
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MASTER FUNDING AGREEMENT NO. C -1 -2776
1 prior to the disposal process. Resolution of any issues regarding whether or not a right -of -way is
2 excess to the transportation improvement will be by the mutual agreement of AUTHORITY and
3 AGENCY. Excess land acquired with CTFP funds shall be sold by AGENCY in accordance with
;,4 Government Code Sections 54220 -54232 and proceeds from the sale shall be returned immediately to
5 AUTHORITY.
6 I. AGENCY will comply with all federal, state and local laws and regulations, including the
7 Renewed Measure M2 Eligibility Guidelines — Local Agency Preparation Manual and the CTFP
1:8 Guidelines, which are incorporated herein by reference.
9 J. AGENCY shall install and remove signage for all competitively awarded construction
10 PROJECT(s) that are in excess of $500,000 and exceed a 90 day construction period in accordance
11 with AUTHORITY specifications during construction period. AGENCY may request AUTHORITY
12 furnished signage or it may choose to provide AGENCY furnished signage so long as said signage
13 conforms to AUTHORTY specifications as follows: Signage shall include a Measure M2 logo that is a
14 minimum of twelve inches (12 ") tall, an OCTA logo that is a minimum of three inches (3 ") tall (image
15 files provided by OCTA upon request), verbiage stating "Street Improvements Funded by Measure M"
16 in Myriad Pro, bold condensed font at two hundred and fifty six (256) pt. and "Your dollars at Work" in
17 Myriad Pro, bold condensed font at one hundred and eighty (180) pt.
18 ARTICLE 5. DELEGATED AUTHORITY
19 The actions required to be taken by AGENCY in the implementation of this Agreement are
20 delegated to its Public Works Director, or his /her designee, and the actions required to be taken by
21 AUTHORITY in the implementation of this Agreement are delegated to AUTHORITY's Chief Executive
22 Officer.
23 ARTICLE 6. AUDIT AND INSPECTION
24 AUTHORITY and AGENCY shall maintain a complete set of records in accordance with
25 generally accepted accounting principles. Upon reasonable notice, AGENCY shall permit the
26 authorized representatives of the AUTHORITY to inspect and audit all work, materials, payroll, books,
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MASTER FUNDING AGREEMENT NO, C -1 -2776
1 accounts, and other data and records of AGENCY for a period of four (4) years after final payment, or
,.2 completion of audit by the AUTHORITY, or after final payment of debt service where local fair share
,3 revenues were pledged, whichever is longer. For purposes of audit, the date of completion of this
4 Agreement shall be the date of AUTHORITY's payment of AGENCY's final billing (so noted on the
5 invoice) under this Agreement. AUTHORITY shall have the right to reproduce any such books, records,
6 and accounts, The above provision with respect to audits shall extend to and /or be included in contracts
_7 with AGENCY's contractor(s).
g ARTICLE 7. INDEMNIFICATION
g A. AGENCY shall indemnify, defend and hold harmless AUTHORITY, its officers, directors,
10 employees and agents from and against any and all claims (including attorney's fees and reasonable
11 expenses for litigation or settlement) for any loss or damages, bodily injuries, including death, worker's
12 compensation subrogation claims, damage to or loss of use of property alleged to be caused by the
13 negligent acts, omissions or willful misconduct by AGENCY, its officers, directors, employees or agents
14 in connection with or arising out of the performance of this Agreement.
15 B. AUTHORITY shall indemnify, defend and hold harmless AGENCY, its officers, directors,
16 employees and agents from and against any and all claims (including attorney's fees and reasonable
17 expenses for litigation or settlement) for any loss or damages, bodily injuries, including death, worker's
18 compensation subrogation claims, damage to or loss of use of property alleged to be caused by the
19 negligent acts, omissions or willful misconduct by AUTHORITY, its officers, directors, employees or
20 agents in connection with or arising out of the performance of this Agreement.
21 C. The indemnification and defense obligations of this Agreement shall survive its
22 expiration or termination.
23 ARTICLE 8. ADDITIONAL PROVISIONS
24 A. Term of Agreement: This Agreement shall continue in full force and effect through final
25 acceptance of PROJECT by AUTHORITY, or until March 31, 2041 whichever is later. This Agreement
26 may be extended at the mutual consent of both parties.
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MASTER FUNDING AGREEMENT NO. C -1 -2776
1 B. Termination: This agreement is null and void if PROJECT is not awarded. However,
12 AUTHORITY agrees to reimburse AGENCY for any costs incurred up to the official date of notification
3 to AGENCY that PROJECT will not be awarded.
4 C. AUTHORITY and AGENCY shall comply with all applicable federal, state, and local
5 laws, statues, ordinances and regulations of any governmental authority having jurisdiction over the
6 PROJECT(s).
7 D. Legal Authority: AUTHORITY and AGENCY hereto consent that they are authorized to
8 execute this Agreement on behalf of said parties and that, by so executing this agreement, the parties
g hereto are formally bound to the provisions of this Agreement.
10 E. Severability: If any term, provision, covenant or condition of this Agreement is held to be
11 invalid, void or otherwise unenforceable, to any extent, by any court of competent jurisdiction, the
12 remainder of this Agreement shall not be affected thereby, and each term, provision, covenant or
13 condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
1,4 F. Counterparts of Agreement: This Agreement may be executed and delivered in any
15 number of counterparts, each of which, when executed and delivered shall be deemed an original and
16 all of which together shall constitute the same agreement. Facsimile signatures will be permitted.
17 G. Force Maieure: Either Party shall be excused from performing its obligations under this
1.8 Agreement during the time and to the extent that it is ,prevented from performing by an unforeseeable
19 cause beyond its control, including but not limited to; any incidence of fire, flood; acts of God;
20 commandeering of material, products, plants or facilities by the federal, state or local government;
21 national fuel shortage; or a material act or omission by the other party; when satisfactory evidence of
22 such cause is presented to the other .Party, and provided further that such nonperformance is
23 unforeseeable, beyond the control and is not due to the fault or negligence of the Party not performing.
24 H. Assignment: Neither this Agreement, nor any of the Parties rights, obligations, duties, or
25 authority hereunder may be assigned in whole or in part by either Party without the prior written consent
26 of the other Party in its sole and absolute discretion. Any such attempt of assignment shall be deemed
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MASTER FUNDING AGREEMENT NO. C -1 -2776
void and of no force and effect. Consent to one assignment shall not be deemed consent to any
subsequent assignment, nor the waiver of any right to consent to such subsequent assignment.
I. Obligations To Comply with Law: Nothing herein shall be deemed nor construed to
authorize or require any Party to issue bonds, notes or other evidences of indebtedness under the
terms, in amounts, or for purposes other than as authorized by local, state or federal law.
J. Governing Law: The laws of the State of California and applicable local and federal
laws, regulations and guidelines shall govern this Agreement.
K. Litigation fees: Should litigation arise out of this Agreement for the performance thereof,
the court shall award costs and expenses, including attorney's fees, to the prevailing party.
L. Notices: Any notices, requests, or demands made between the parties pursuant to this
Agreement are to be directed as follows:
To AGENCY:
To AUTHORITY:
City of Newport Beach
Orange County Transportation Authority
3300 Newport Boulevard
550 South Main Street
Newport Beach, CA 92663
P:O. Box 14184
Orange, CA 92863 -1584
ATTENTION: Stephen G. Badum, Public Works
ATTENTION: Marvin Cruz, Senior Contract
Director
Administrator
Tel: (949) 644 -3311
Tel: (714) 560 — 5568
Email: sbadumanewportbeach.ca.gov I
Email: mcruz@octa.net
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MASTER FUNDING AGREEMENT NO. C -1 -2776
This Agreement shall be made effective upon execution by both parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement No. C -1 -2776 to be executed
on the date first above written.
CITY OF NEWPORT BEACH ORANGE COUNTY TRANSPORTATION AUTHORITY
0
Keith D. Curry
Mayor
By:
Will Kempton
Chief Executive Officer
ATTEST: APPROV AS TO FOR
By: By.
Leilani I. Brown Kennard R. Smart, Jr.
City Clerk General Counsel
APPROVED AS TO FORM: APPROVAL RECOMMENDED:
A Attorney
B� !�ZZ� By:
Leonie Mulvihill T
Assistant City Attorney��
Dated:
Kia Mortazavi
Executive Director, Planning
Dated:
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AGREEMENT NO. C -1 -2776
ATTACHMENT A
M2 CTFP MASTER FUNDING AGREEMENT
City of Newport Beach - Project List
Letter
CTFP Programmed Agreement
Project Description Amount Fiscal Year Board Date No.
Newport Boulevard Widening (Engineering) $225,000.00 2011 -12 6/27/2011