HomeMy WebLinkAbout07 - Acquisition of Rule 20A Credits from the Cities of Laguna Woods, Lynwood and Mission ViejoPORT CITY OF
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_ i NEWPORT BEACH
City Council Staff Report
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July 23, 2019
Agenda Item No. 7
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: David A. Webb, Public Works Director - 949-644-3311,
dawebb@newportbeachca.gov
PREPARED BY: Raymund Reyes, Administrative Analyst
PHONE: 949-644-3325
TITLE: Acquisition of Rule 20A Credits from the Cities of Laguna Woods,
Lynwood and Mission Viejo
ABSTRACT:
California Public Utilities Commission (CPUC) Rule 20A establishes program funding for
the undergrounding of overhead utilities by municipalities. The cities of Laguna Woods,
Lynwood and Mission Viejo have unallocated Rule 20A credits and are each offering to
sell them to the City of Newport Beach. The purchase for all three allocations totals
$195,158.15. This action will result in a $354,833 credit to the City's Southern California
Edison (SCE) Rule 20A account.
RECOMMENDATION:
a) Determine this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because
this action will not result in a physical change to the environment, directly or indirectly;
b) Approve Memorandums of Understanding (MOU) with the cities of Laguna Woods,
Lynwood and Mission Viejo, documenting details of the transaction for the Rule 20A
credit acquisitions, and authorize the City Manager and City Clerk to execute each
Memorandum of Understanding; and
c) Authorize staff to process Rule 20A credit transfers between the City of Newport
Beach and Laguna Woods, Lynwood, and Mission Viejo with SCE.
FUNDING REQUIREMENTS:
The current Fiscal Year 2019-20 Capital Improvement Program budget includes sufficient
funding for this purchase. It will be expensed to 53601-980000-20M03 (SCE Rule 20A
Credit Purchase).
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Acquisition of Rule 20A Credits from the
Cities of Laguna Woods, Lynwood and Mission Viejo
July 23, 2019
Page 2
DISCUSSION:
CPUC Rule 20 sets the policies and procedures for the implementation of underground
conversion programs. Under Rule 20, underground utility projects may be financed by
utility rate money, combined rate funds and local tax proceeds, depending on whether the
project is classified under Rule 20A, Rule 20B, or Rule 20C provisions.
Rule 20A projects are paid for by the utility's ratepayers. To qualify for funding through
these proceeds, projects must serve the public interest by meeting one or more of the
following criteria:
• The project eliminates an unusually heavy concentration of overhead facilities;
• The location involves a street or road with a high volume of public traffic;
• The location is an arterial or major collector road as defined in the Governor's
Office of Planning and Research (OPR) Guidelines; and/or
• The location benefits a civic or public recreational area or an area of unusual scenic
interest.
The City receives an annual 20A allocation of approximately $200,000 and SCE allows
an agency to leverage up to five years of Rule 20A allocations. As of July 2019, the City
has an available balance of $2,616,679.
In 2013, the City Council passed Resolution No. 2013-82, establishing Underground
Utilities District (UUD) No. 22, a Rule 20A project on Balboa Boulevard between West
Coast Highway and 22nd Street. Due to design changes and the addition of Court Street
between 21st and 20th Streets, the District was re-established as UUD No. 22a in 2016
via Resolution 2016-41. On April 09, 2019, the City Council awarded a construction
contract for Rule 20B Assessment Districts No. 116 and 116B, which also included the
first phase of Underground Utility District (UUD) No. 22a. Additionally, Council approved
a MOU to purchase $2,722,215 in 20A credits from the City of Lynwood in order to provide
the necessary funding for construction of UUD No. 22a. Construction on these utility
undergrounding districts began this month.
Assessment District No. 111 and Phase 2 of UUD No 22a are currently planned for
bidding later this fall (with optional areas on Court Street and between 22nd and 23rd
Streets). With Council's desire to complete the entire Balboa Boulevard UUD No. 22a
District, and in order to provide the necessary funding to complete phase 2, staff is
recommending the purchase of additional unused 20A credits from the cities of Laguna
Woods, Lynwood and Mission Viejo.
Mission Viejo previously provided first right of refusal for Rule 20A credit purchases to
Newport Beach. Mission Viejo approved a new MOU during their May 28, 2019 city
council meeting and have granted first right of refusal to the City for future Rule 20A
allocations through July 1, 2021 at the existing rate of $0.55 per dollar. Staff were also
successful in securing the same $0.55 rate with the cities of Laguna Woods and Lynwood.
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Acquisition of Rule 20A Credits from the
Cities of Laguna Woods, Lynwood and Mission Viejo
July 23, 2019
Page 3
The purchases would result in an increase of $354,833.00 to the City's current Rule 20A
balance. These credits would be used for the next phase of the Balboa Boulevard project,
including the optional areas if directed by Council. Based on recent City bids, staff
believes the remaining UUD-22 phase 2 and optional areas can be completed with the
purchase of these additional credits.
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).
ATTACHMENTS:
Attachment A — Memorandum of Understanding with the City of Laguna Woods
Attachment B — Memorandum of Understanding with the City of Lynwood
Attachment C — Memorandum of Understanding with the City of Mission Viejo
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ATTACHMENT A
MEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding ("MOU") is entered into as of
2019, by and between the City of Newport Beach, a California municipal corporation and charter
city, with its principal place of business at 100 Civic Center Drive, Newport Beach, CA 92660
("Newport Beach") and the City of Laguna Woods, a California municipal corporation with its
principal place of business at 24264 El Toro Road, Laguna Woods, CA 92637 ("Laguna Woods").
Newport Beach and Laguna Woods are sometimes individually referred to herein as "Party" and
collectively as "Parties."
RECITALS
A. Electric utilities collect and annually allocate funds to communities to convert
overhead electric facilities to underground electric facilities ("Rule 20A Funds").
B. Newport Beach is actively planning one or more projects to underground overhead
electric facilities that qualify for the application of California Public Utilities Commission
(`CPUC'') Rule 20A Funds ("Projects'). Newport Beach desires to obtain an additional allocation
of Rule 20A Funds to finance such Projects.
C. Southern California Edison ('SCE") currently has designated and dedicated a
balance of Thirty Four Thousand Nine Hundred and Fifty Nine Dollars and 00/100
($34,959.00) in Rule 20A Funds for the benefit of Laguna Woods (`Laguna Woods Allocation")
and Laguna Woods currently has no active projects which can make use of the Laguna Woods
Allocation.
D. Newport Beach desires to acquire, for consideration, the Laguna Woods Allocation
to use in connection with the Projects, and Laguna Woods desires to transfer the Laguna Woods
Allocation to Newport Beach to enable the Rule 20A Funds, which have been allocated to Laguna
Woods, to be used for their intended purpose of undergrounding electric facilities and to derive
economic benefit from the Laguna Woods Allocation.
AGREEMENT
NOW THEREFORE, the Parties hereto agree as follows:
1. Laguna Woods agrees to transfer and assign for use by Newport Beach, its rights
and interest in the Laguna Woods Allocation to Newport Beach and Newport Beach agrees to
acquire, for consideration, the Laguna Woods Allocation in accordance with the terms of this
MOU. This MOU shall be subject to the approval of the City Council of Newport Beach and the
City Council of Laguna Woods and shall become effective on the date when both such approvals
have been obtained ("Effective Date"'). Notwithstanding the foregoing, if this MOU has not
become effective as of September 30, 2019, then either Party may terminate this MOU upon five
(5) business day's written notice to the other Party without incurring any liability, costs or further
obligations to the other Party or any third party.
2. Within fifteen (15) business days of the Effective Date, Newport Beach shall make
a payment to Laguna Woods in the amount of Nineteen Thousand Two Hundred Twenty Seven
Dollars and 45/100 ($19,227.45) ("Acquisition Price"). which is equivalent to Fifty -Five Cents
Page 1 of 4
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($0.55) for every One Dollar ($1.00) of allocation. The Acquisition Price shall be made in
immediately available funds via check or wire transfer to an account designated by Laguna Woods.
The Acquisition Price shall constitute full consideration for the transfer and assignment of the
Laguna Woods Allocation.
3. Within ten (10) business days of Laguna Woods' receipt of the Acquisition Price.
Laguna Woods shall deliver a written request to SCE, with a copy to Laguna Beach, making a
formal request to transfer and assign the entire balance of the Rule 20A Funds contained in the
Laguna Woods Allocation to and for the benefit of Newport Beach. Laguna Woods shall cooperate
in good faith with Newport Beach to provide any additional documentation or information that is
reasonably requested by SCE to complete the transfer. Newport Beach acknowledges and agrees
that it has conducted its own investigation as to the applicability and transferability of the Laguna
Woods Allocation for use in the Projects and that Laguna Woods has not made any representation
or warranty to Newport Beach with respect to same. The actual use of the Laguna Woods
Allocation by Newport Beach shall be subject to the rules and procedures adopted by SCE, CPUC
and such other conditions or requirements as are set forth in the Public Utilities Code. Newport
Beach may rescind the transaction before SCE approves the proposed Rule 20A transfer, for a
period of one (1) year after the Effective Date of this MOU, and in the event of such rescission,
Laguna Woods will return the Acquisition Price in full to Newport Beach within ten (10) business
days of Newport Beach's written notification of rescission to Laguna Woods.
4. Newport Beach shall indemnify, defend and hold harmless Laguna Woods, its
elected officials, officers, employees and agents, from any claim, damage or liability arising in
connection with the use of Rule 20A Funds from the Laguna Woods Allocation in connection with
the construction of the Projects, including legal challenges of all types of natures, including but
not limited to, administrative, judicial or legislative.
5. In the event that either Party is in breach of its obligations as set forth in this MOU,
then the non -defaulting Party shall have the right to terminate this MOU on ten (10) business day's
written notice to the defaulting Party unless the default is cured within the notice period. Upon
termination for breach, the non -defaulting Party may exercise any right or remedy which it may
have under applicable law. Within ten (10) business days of termination pursuant to this Section,
Laguna Woods shall return to Newport Beach that portion of the Acquisition Price applicable to
that portion of the Laguna Woods allocation not yet transferred by SCE to Newport Beach.
6. All notices to be given pursuant to this MOU shall be delivered in person or by
commercial overnight delivery to the address of the Party set forth above and addressed to the City
Manager of such Party and shall be effective upon receipt. Notice may further be given by
electronic means, provided, however, that such notice shall not be deemed effective unless it is
acknowledged in writing by the recipient of such notice.
7. This MOU shall be governed and construed in accordance with the laws of the State
of California, and any action brought relating to this MOU shall be adjudicated in a court of
competent jurisdiction in County of Orange.
8. If any legal proceeding. including an action for declaratory relief, is brought to
enforce or interpret provisions of this MOU, the prevailing party will be entitled to reasonable
attorney's fees, which may be set by the court in the same action or in a separate action brought
for that purpose, in addition to any other relief to which the party maybe entitled.
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9. This MOU shall become effective when executed by all parties and may be
executed in counterparts, any one of which shall be deemed to be an original instrument. Any proof
of the MOU shall require production of only one such counterpart duly executed by the party to
be charged therewith. PDF copy or facsimile copy of signatures shall be deemed original
signatures.
[SIGNATURES ON NEXT PAGE]
Page 3 of 4
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IN WITNESS WHEREOF, the Parties hereto have executed this MOU as of the Effective Date.
CITY OF LAGUNA WOODS
By:
Cynthia Conners, Mayor
Attest:
By:
Yolie Trippy, Deputy City Clerk
Approved as to form:
By:
David B. Cosgrove, City Attorney
CITY OF NEWPORT BEACH
By:
Grace K. Leung, City Manager
Attest:
By:
Leilani I. Brown, City Clerk
Approved as to form:
By.
., Aaron C. Harp, City Attorney
-I- - II--t'l
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ATTACHMENT B
MEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding ("MOU") is entered into as of 2019, by
and between the City of Newport Beach, a California municipal corporation and charter
city with its principal place of business at 100 Civic Center Drive, Newport Beach,
California 92660 ("Newport Beach"), and the City of Lynwood, a California municipal
corporation and general law city with its principal place of business at 11330 Bullis Road,
Lynwood, California 90262 ("Lynwood"). Newport Beach and Lynwood are sometimes
individually referred to herein as "Party" and collectively as "Parties".
RECITALS
A. Electric utility companies collect and annually allocate funds to communities
to convert overhead electric facilities to underground electric facilities ("Rule 20A Funds").
B. Newport Beach is actively planning one or more projects to underground
overhead electric facilities that qualify for the application of California Public Utilities
Commission ("CPUC") Rule 20A Funds ("Projects"). Newport Beach desires to obtain
additional Rule 20A Funds to finance such Projects.
C. Southern California Edison ("SCE") currently has designated and dedicated
a balance of One Hundred Seventy Seven Thousand Eight Hundred Sixty Five
Dollars and 001100 ($177,865.00) in Rule 20A Funds for the benefit of Lynwood
("Lynwood Allocation"), and Lynwood currently has no active Projects that can make use
of the Lynwood Allocation.
D. Newport Beach desires to acquire, for consideration, the Lynwood
Allocation to use in connection with the Newport Beach Projects, and Lynwood desires to
transfer the Lynwood Allocation to Newport Beach to enable the Rule 20A Funds, which
have been allocated to Lynwood, to be used for their intended purpose of undergrounding
electric facilities and to derive economic benefit from the Lynwood Allocation.
AGREEMENT
NOW, THEREFORE, the Parties hereto agree as follows:
1. Lynwood agrees to assign, for use by Newport Beach, its rights and
interests in the Lynwood Allocation to Newport Beach, and Newport Beach agrees to
acquire, for consideration, the Lynwood Allocation in accordance with the terms of this
MOU. This MOU shall be subject to the approval of each the City Council of Newport
Beach and the City Council of Lynwood and shall become effective on the date when both
such approvals have been obtained ("Effective Date"). Notwithstanding the foregoing, if
this MOU has not become effective as of July 1, 2020, then either Party may terminate
this MOU on five (5) business days' written notice to the other Party without incurring any
liability, costs or further obligations to the other party or any third party.
2. Within fifteen (15) business days of the Effective Date, Newport Beach shall
make a payment to Lynwood in the amount of Ninety Seven Thousand Eight Hundred
Twenty Five Dollars and 751100 ($97,825.75) ("Acquisition Price"). The Acquisition Price
shall be paid in immediately available funds via check or wire transfer to an account
W,
designated by Lynwood. The Acquisition Price shall constitute full consideration for the
transfer and assignment of the Lynwood Allocation.
3. Lynwood agrees to sell the Lynwood Allocation to Newport Beach at a
purchase rate of Fifty Five Cents ($0.55) for every One Dollar ($1.00) of Rule 20A
Funds. Within ten (10) business days of Lynwood's receipt of the Acquisition Price funds,
Lynwood shall deliver a written request to SCE, with a copy to Newport Beach, making a
formal request to transfer and assign One Hundred Seventy Seven Thousand Eight
Hundred Sixty Five Dollars and 001100 ($177,865.00) of Rule 20A Funds contained in
the Lynwood Allocation to and for the benefit of Newport Beach. Lynwood shall cooperate
in good faith with Newport Beach to provide any additional documentation or information
that is reasonably requested by SCE to complete the transfer. In the event that SCE is
unable to complete the transfer, or only complete a partial transfer, Lynwood shall return
the unused Acquisition Price funds to Newport Beach within ten (10) business days of
Newport Beach's notification to Lynwood.
4. Newport Beach acknowledges and agrees that it has conducted its own
investigation as to the applicability and transferability of the Lynwood Allocation for use in
the Projects and that Lynwood has not made any representation or warranty to Newport
Beach with respect to same. The actual use of the Lynwood's Allocation by Newport
Beach shall be subject to the rules and procedures adopted by SCE, CPUC, and such
other conditions or requirements set forth in the Public Utilities Code.
5. Newport Beach shall indemnify, defend, and hold harmless Lynwood, its
elected officials, officers, employees, and agents, from any claim, damage or liability
arising in connection with the use of Rule 20A Funds from the Lynwood Allocation in
connection with the construction of the Projects, including legal challenges of all types or
natures, including but not limited to administrative, judicial, or legislative actions.
6. In the event that either Party is in breach of its obligations as set forth in this
MOU, then the non -defaulting Party shall have the right to terminate this Agreement on
ten (10) business days' written notice to the defaulting Party unless the default is cured,
or cure has commenced, within the notice period. Upon termination for breach, the non -
defaulting Party may exercise any right or remedy which it may have under applicable
law. Within ten (10) business days of termination pursuant to this Section 6, Lynwood
shall return to Newport Beach that portion of the Acquisition Price applicable to that
portion of the Lynwood Allocation not yet transferred by SCE to Newport Beach.
7. All notices to be given pursuant to this MOU shall be delivered in person or
by commercial overnight delivery to the address of the Party set forth above, and
addressed to the City Manager of such Party and shall be effective upon receipt.
8. This MOU shall be governed and construed in accordance with the laws of
the State of California, and any action brought relating to this MOU shall be adjudicated
in a court of competent jurisdiction in the County of Orange.
9. Each Party shall at its own cost and expense comply with all statutes,
ordinances, regulations and requirements of all governmental entities, including federal,
state, county or municipal, whether now in force or hereinafter enacted.
Memorandum of Understanding — Page 2
7-9
10. A waiver by either Party of any breach, of any term, covenant or condition
of this MOU contained herein shall not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
11. The terms of this MOU shall be construed in accordance with the meaning
of the language used and shall not be construed for or against either Party by reason of
the authorship of the MOU or any other rule of construction which might otherwise apply.
12. If any term or portion of this MOU is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of this MOU
shall continue in full force and effect.
13. In the event of any dispute or legal action arising under this MOU, the
prevailing Party shall not be entitled to attorney's fees.
14. This MOU may be executed in two or more counterparts, each of which
shall be deemed an original and all of which together shall constitute one and the same
instrument.
15. Each Party signing this MOU explicitly affirms and provides they have the
power and authority to bind their respective Party.
[SIGNATURES ON FOLLOWING PAGE]
Memorandum of Understanding — Page 3
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IN WITNESS WHEREOF, the Parties hereto have executed this MOU as of the
dates indicated below.
CITY OF LYNWOOD,
A California municipal corporation
Date:
Jose Ometeotl
City Manager
ATTEST:
Date:
Maria Quinonez
City Clerk
APPROVED AS TO FORM:
Date:
Noel Tapia
City Attorney
CITY OF NEWPORT BEACH,
A California municipal corporation
Date:
Grace K. Leung
City Manager
ATTEST:
Date:
Leilani I. Brown
City Clerk
APPROVED AS TO FORM:
Date: O 2.01
FOt'Aaron C. HarpR,{
City Attorney`s lc�
[END OF SIGNATURES]
Memorandum of Understanding — Page 4
7-11
ATTACHMENT C
MEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding (MOU) is entered into as of 2019
(Effective Date), by and between the City of Newport Beach, a California municipal
corporation and charter city, with its principal place of business at 100 Civic Center Drive,
Newport Beach, California 92660 (Newport Beach), and the City of Mission Viejo, a
California municipal corporation with its principal place of business at 200 Civic Center,
Mission Viejo, California 92691 (Mission Viejo). Newport Beach and Mission Viejo are
sometimes individually referred to herein as "Party" and collectively as "Parties".
RECITALS
A. Electric Utilities collect and annually allocate funds to communities to
convert overhead electric facilities to underground electric facilities (Rule 20A Funds).
B. Newport Beach is actively planning one or more projects to underground
overhead electric facilities that qualify for the application of California Public Utilities
Commission (CPUC) Rule 20A Funds (Projects). Newport Beach desires to obtain
additional Rule 20A Funds allocation to finance such Projects.
C. Southern California Edison (SCE) currently has designated and dedicated
a balance of One Hundred Forty Two Thousand Nine Dollars and 001100 ($142,009.00)
in Rule 20A Funds for the benefit of Mission Viejo (Mission Viejo Allocation), and Mission
Viejo currently has no active projects which can make use of the Mission Viejo Allocation.
D. Mission Viejo has granted Newport Beach first right of refusal to purchase
Rule 20A allocations between July 1, 2017 and July 1, 2019.
E. Newport Beach desires to acquire, for consideration, the Mission Viejo
Allocation to use in connection with the Projects, and Mission Viejo desires to transfer the
Mission Viejo Allocation to Newport Beach to enable the Rule 20A Funds, which have
been allocated to Mission Viejo, to be used for their intended purpose of undergrounding
electric facilities and to derive economic benefit from the Mission Viejo Allocation.
AGREEMENT
NOW, THEREFORE, the Parties hereto agree as follows:
1. Mission Viejo agrees to assign, for use by Newport Beach, its rights and
interests in the Mission Viejo Allocation to Newport Beach, and Newport Beach agrees to
acquire, for consideration, the Mission Viejo Allocation in accordance with the terms of
this MOU. This MOU shall be subject to the approval of each the City Council of Newport
Beach and the City Council of Mission Viejo and shall become effective on the date when
both such approvals have been obtained (Effective Date). Notwithstanding the foregoing,
if this MOU has not become effective as of September 30, 2019, then either Party may
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terminate this MOU on five (5) business days' written notice to the other Party without
incurring any liability, costs or further obligations to the other party or any third party.
2. Within fifteen (15) business days of the Effective Date, Newport Beach shall
make a payment to Mission Viejo in the amount of Seventy Eight Thousand One
Hundred Four Dollars and 951100 ($78,104.95) (Acquisition Price). The Acquisition
Price shall be made in immediately available funds via check or wire transfer to an
account designated by Mission Viejo. The Acquisition Price shall constitute full
consideration for the transfer and assignment of the Mission Viejo Allocation.
3. Mission Viejo agrees to sell the Mission Viejo Allocation to Newport Beach
at a purchase rate of Fifty -Five Cents ($0.55) for every One Dollar ($1.00) of Rule 20A
Funds. Within ten (10) business days of Mission Viejo's receipt of the Acquisition Price
funds, Mission Viejo shall deliver a written request to SCE, with a copy to Newport Beach,
making a formal request to transfer and assign the entire balance of the Rule 20A Funds
contained in the Mission Viejo Allocation to and for the benefit of Newport Beach. Mission
Viejo shall cooperate in good faith with Newport Beach to provide any additional
documentation or information that is reasonably requested by SCE to complete the
transfer. In the event that SCE is unable to complete the transfer, or only complete a
partial transfer, Mission Viejo shall return the unused Acquisition Price funds to Newport
Beach within ten (10) business days of Newport Beach's notification to Mission Viejo.
4. Newport Beach acknowledges and agrees that it has conducted its own
investigation as to the applicability and transferability of the Mission Viejo Allocation for
use in the Projects and that Mission Viejo has not made any representation or warranty
to Newport Beach with respect to same. The actual use of the Mission Viejo Allocation
by Newport Beach shall be subject to the rules and procedures adopted by SCE, CPUC,
and such other conditions or requirements as are set forth in the Public Utilities Code.
5. Newport Beach shall indemnify, defend, and hold harmless Mission Viejo,
its elected officials, officers, employees, and agents, from any claim, damage or liability
arising in connection with the use of Rule 20A Funds from the Mission Viejo Allocation in
connection with the construction of the Projects, including legal challenges of all types or
natures, including but not limited to administrative, judicial, or legislative actions.
6. In the event that either Party is in breach of its obligations as set forth in this
MOU, then the non -defaulting Party shall have the right to terminate this Agreement on
ten (10) business days' written notice to the defaulting Party unless the default is cured,
or cure has commenced, within the notice period. Upon termination for breach, the non -
defaulting Party may exercise any right or remedy which it may have under applicable
law. Within ten (10) business days of termination pursuant to this Section 6, Mission Viejo
shall return to Newport Beach that portion of the Acquisition Price funds applicable to that
portion of the Mission Viejo Allocation not yet transferred by SCE to Newport Beach.
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7. All notices to be given pursuant to this MOU shall be delivered in person or
by commercial overnight delivery to the address of the Party set forth above, and
addressed to the City Manager of such Party and shall be effective upon receipt.
8. This MOU shall be governed and construed in accordance with the laws of
the State of California, and any action brought relating to this Agreement shall be
adjudicated in a court of competent jurisdiction in the County of Orange.
9. Each Party shall at its own cost and expense comply with all statutes,
ordinances, regulations and requirements of all governmental entities, including federal,
state, county or municipal, whether now in force or hereinafter enacted.
10. A waiver by either Party of any breach, of any term, covenant or condition
contained herein shall not be deemed to be a waiver of any subsequent breach of the
same or any other term, covenant or condition contained herein, whether of the same or
a different character.
11. Mission Viejo agrees to provide Newport Beach first right of refusal to
purchase future Rule 20A allocations between July 1, 2019 and July 1, 2021. If Mission
Viejo intends to transfer its Rule 20A allocation within said dates it shall notify Newport
Beach of fund availability and the proposed purchase price by another city if another city
is proposing a purchase price higher than the purchase rate of Fifty -Five Cents ($0.55)
for every One Dollar ($1.00) of Rule 20A Funds. If Newport Beach desires to acquire said
allocations by matching the price proposed by another city, it shall respond within fifteen
(15) business days of Mission Viejo's notification stating intent to purchase said
allocations at the proposed purchase price. Newport Beach agrees to enter into an MOU
with Mission Viejo to complete the transfer within 90 days of said notification to Mission
Viejo.
12. The terms of this Agreement shall be construed in accordance with the
meaning of the language used and shall not be construed for or against either Party by
reason of the authorship of the Agreement or any other rule of construction which might
otherwise apply.
13. If any term or portion of this Agreement is held to be invalid, illegal, or
otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of
this Agreement shall continue in full force and effect.
14. In the event of any dispute or legal action arising under this Agreement, the
prevailing Party shall not be entitled to attorney's fees.
15. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall constitute one and the
same instrument.
16. Each Party signing this Agreement explicitly affirms and provides they have
the power and authority to bind their respective Party.
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IN WITNESS WHEREOF, the Parties hereto have executed this MOU as of the
dates indicated below.
CITY OF MISSION VIEJO,
A California municipal corporation
Date:
Dennis Wilberg
City Manager
ATTEST:
Date:
Karen Hamman
City Clerk
APPROVED AS TO FORM:
Date:
William P. Curley III
City Attorney
CITY OF NEWPORT BEACH,
A California municipal corporation
Date:
Grace K. Leung
City Manager
ATTEST:
Date:
Leilani I. Brown
City Clerk
APPROVED AS TO FORM.
Date: 6 S 20{Q
fol' -Aaron C. Harp go & :r•l�
City Attorney
[END OF SIGNATURES]
4
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IN WITNESS WHEREOF, the Parties hereto have executed this MOU as of the dates
indicated below.
CITY OF MISSION VIEJO,
A California municipal corporation
Dennis Wilberg Date
City Manager
ATTEST:
Ka en Hamman Date
City Clerk
APPROVED AS TO FORM:
William P. Curley III Date
City Attorney
CITY OF NEWPORT BEACH,
A California municipal corporation
Grace K. Leung
City Manager
ATTEST:
Date
Leilani I. Brown Date
City Clerk
Aaron C. Harp Date
City Attorney
[END OF SIGNATURES1
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