HomeMy WebLinkAboutC-4010 - Proposition 42 City Aid Program Funding AgreementC -e -10/o
Agreement No.D09-026
PROPOSITION 42
CITY AID PROGRAM FUNDING AGREEMENT
This CITY AID PROGRAM FUNDING AGREEMENT, Agreement No. D09-026
("Agreement") is made and entered into this day of MAS/ 025 , 2010, by and between
County of Orange, California, a political subdivision of the State of California ("County"), and
City of Newport Beach, a municipal corporation in the State of California ("City"). The County
and City shall sometimes be referred to separately as a "Party" and collectively as the "Parties."
RECITALS
A. WHEREAS, Orange County cities have streets in need of routine roadway
maintenance, minor roadway widening (non -capacity enhancing) and storm damage
improvements, but have limited funds to address these needs.
B. WHEREAS, pursuant to Streets and Highways Code Section 1686, the California
State Legislature has determined that the improvement and maintenance of all city streets is of
general county interest. County believes that it is of general interest to the county and all the
cities within the county to extend financial aid to the cities for the general improvement and
maintenance of city streets in that the improvement of transportation congestion is of benefit to
all Orange County residents.
C. WHEREAS, County desires to assist Orange County cities with the improvement
and maintenance of city streets, and to help improve regional transportation needs within the
county. County receives Proposition 42 ("Prop. 42") allocations from the State's Transportation
Investment Fund ("TIF") for the purposes of street and highway maintenance, rehabilitation,
reconstruction and storm damage repair.
D. WHEREAS, With authorization from the State, County has established its Prop.
42 City Aid Program ("CAP"). County will allocate a portion of County's Prop. 42 funds to
participating cities for the purposes of routine roadway maintenance, minor roadway widening
(non -capacity enhancing) and storm damage improvements within the cities ("CAP Funds").
City's expenditure of CAP Funds is to be in accordance with California Constitution Article XIX
B Section 1 and Revenue and Taxation Code Section 7104, and all other applicable State rules,
regulations and guidelines ("Prop. 42 Requirements").
E. WHEREAS, City owns and operates streets in need of routine roadway
maintenance, minor roadway widening (non capacity enhancing) and storm damage
improvements, and acknowledges that it has limited funds by which to address these needs.
Therefore, City is in support of receiving CAP Funds.
NOW, THEREFORE, in consideration of the foregoing recitals of fact, the mutual covenants and
conditions contained herein and other consideration, the value and adequacy of which are hereby
acknowledged, the Parties agree as follows:
Page 1 of 6
Agreement No.D09-026
City Request for CAP Funds
Prior to disbursement of CAP Funds, City shall provide County with a request for CAP Funds
listing the proposed project(s), delineating all costs for project design, construction, and
construction management that comply with Prop. 42 Requirements, and referencing Agreement
by number. City shall also provide documentation, such as a city council minute order,
indicating award of the project(s), the contractor to which the project(s) was awarded, and the
amount of award, which award must be greater than the amount of the request (collectively,
"CAP Funds Request").
2. Procedures for the Disbursement of CAP Funds
2.1 After County reviews and confirms eligibility of City's CAP Funds Request,
County will disburse CAP Funds to City in accordance with this Section 2 in an amount not to
exceed $197,344.00.
2.2 County will disburse CAP Funds to City in the order it receives eligible CAP
Funds Requests from all participating cities, i.e., on a "first come, first served" basis. County
will disburse CAP Funds to City upon County's receipt of its fiscal year 09/10 Prop. 42
allocations from the State. CAP Funds will not be disbursed to City until such time that
adequate Prop. 42 funds are made available to County to pay all participating cities which have
previously submitted eligible CAP Funds Requests.
2.3 CAP Funds shall be allocated proportionally based on the percentage of City's
population compared to the total population of all participating cities as of the latest estimates
published by the Demographic Research Unit of the California Department of Finance.
2.4 County's disbursement of CAP Funds is subject to the State's allocation of Prop.
42 funds to County including, but not limited to, allocation delays by the State or changes to
Prop. 42 Requirements.
3. City Obligations
3.1 In order to receive CAP Funds, City shall maintain its existing Maintenance of
Effort ("MOE") of local funds for street and highway, maintenance, rehabilitation,
reconstruction, and storm damage repair. City must annually expend from its general fund for
street, road, and highway purposes an amount not less than the annual average of its
expenditures from its general fund during the 1996-97, 1997-98, and 1998-99 fiscal years, as
reported to the State Controller pursuant to Streets and Highways Code Section 2151.
3.2 City must expend its CAP Funds between July 1, 2009 and June 30, 2011. Any
CAP Funds not expended by June 30, 2011 ("Deadline") shall promptly be returned to County,
but in no event shall City return CAP Funds later than August 31, 2011.
3.3 If City determines at any time that City cannot expend its CAP Funds by the
Deadline, City shall immediately notify County in writing of this determination. City shall then
Page 2 of 6
Agreement No.D09-026
return its remaining CAP Funds within thirty (30) days of said notification. Should City's CAP
Funds be returned to County prior to Deadline, County will attempt to reallocate the funds to
other County projects. However, if County is unable to do so, the funds will be returned to the
State.
3.4 Upon the expenditure of all CAP Funds, City shall promptly submit, but no later
than August 31, 2011, an expenditure certification to County, listing the project(s) for which
CAP Funds were used and certifying that all expenditures of CAP Funds comply with Prop. 42
Requirements.
3.5 Upon request by County, City shall provide County, within thirty (30) days of the
request, all documentation and other information relating to City's expenditure of CAP Funds.
3.6 In the event of an audit by the State, City shall provide State and/or County all
documentation requested by the State within the timeframe required by the State. City shall
work cooperatively with County during the course of the audit. City shall attend all audits and
audit proceedings, as needed. If the State finds that any City expenditure of CAP Funds is
ineligible or does not comply with Prop. 42 Requirements, the amount of the ineligible
expenditure shall be immediately reimbursed to County, which will be returned to the State.
4. Miscellaneous Provisions
4.1 Availability of Funds County's obligation is subject to the availability of funds
appropriated for this purpose, and nothing herein shall be construed as obligating County to
expend or as involving County in any contract or other obligation for future payment of money
in excess of appropriations authorized by law. If County's total Prop. 42 allocation from the
State falls 10 percent or more below the anticipated eighteen million, three hundred thousand
dollars ($18,300,000) yearly allocation, County will adjust the seven million dollar ($7,000,000)
total CAP allocation by the same percentage. City's allocation of CAP Funds will likewise be
adjusted. There will be no adjustment if County's total Prop. 42 allocation from the State
exceeds County's anticipated allocation amount.
4.2 Indemnification & Hold Harmless City shall indemnify, defend with counsel
approved in writing, save and hold County and each of its elected officials, officers, directors,
agents and employees harmless from any and all claims, injuries, liabilities, actions, damages,
losses or expenses, including attorney's fees and costs, of every type and description to which
they may be subjected arising out of any act or omission of, its employees, representatives,
agents and independent contractors in connection with the implementation of the actions
described in this agreement. Should a City expenditure of CAP Funds be determined to be
ineligible by the State, City is further liable for any interest payments, fines, or other forfeitures
that may be assessed by the State.
Notwithstanding Sections 3.2 and 3.3, City shall return CAP Funds to County within thirty (30)
days should 1) the State or County deem any City expenditure of CAP Funds to be ineligible; or
2) the City Aid Program be found to be incompatible with State requirements.
Page 3 of 6
Agreement No.D09-026
4.3 Assi nment This Agreement shall be binding upon and inure to the benefit of
the successors and assigns of the Parties. No assignment of City's interest in this Agreement
shall be made without the written consent of County. Furthermore, City agrees that CAP Funds
shall not be expended on, given to, shared with, or otherwise provided to any other city, local
agency or other entity that is not contemplated under this Agreement.
4.4 Entirety & Amendments This Agreement contains the entire agreement between
the Parties with respect to the matters provided for herein. No alteration or variation of the terms
of this Agreement shall be valid unless made in writing and signed by the Parties; no oral
understanding or agreement not incorporated herein shall be binding on either of the Parties; and
no exceptions, alternatives, substitutes or revisions are valid or binding on County unless
authorized by County in writing.
4.5 Severability If any part of this Agreement is held, determined, or adjudicated to
be illegal, void, or unenforceable by a court of competent jurisdiction, the remainder of this
Agreement shall be given effect to the fullest extent reasonably possible.
4.6 Calendar Days Any reference to the word "day" or "days" herein means
calendar day or calendar days respectively, unless otherwise expressly provided.
4.7 Notices Notices or other communications which may be required or
provided under the terms of this Agreement shall be given as follows:
City: Director of Public Works/City Engineer
Public Works Department
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663
Phone 949-644-3311
Facsimile 949-644-3039
and
County: Director/Chief Engineer, OC Engineering
OC Public Works
County of Orange
PO Box 4048
Santa Ana, CA 92702-4048
Phone 714-667-3213
Facsimile 714-834-2496
All notices shall be in writing and deemed effective when delivered in person or deposited in the
United States mail, first class, postage prepaid and addressed as above. Notwithstanding the
above, the Parties may also provide notices by facsimile transmittal, and any such notice so
given shall be deemed to have been given upon receipt during normal business hours or, in the
event of receipt after business, on the following business day. Any notices, correspondence,
Page 4 of 6
Agreement No.D09-026
reports and/or statements authorized or required by this Agreement, addressed in any other
fashion shall be deemed not given.
4.8 Termination County may terminate this Agreement for any reason provided
that City has not awarded any project on which its CAP allocation will be expended. After City
has awarded a project on which its CAP allocation will be expended, County may terminate this
Agreement if City is in breach of this Agreement. Any such termination shall be accomplished
by delivery to City a Notice of Termination, which notice shall become effective not less than
thirty (30) days after receipt, specifying the reason for the termination, the extent to which CAP
funding is terminated, and the date upon which the termination is effective.
4.9 Breach The failure of City to comply with any of the terms and conditions of
this Agreement shall be a material breach of this Agreement. A breach of this Agreement by
City may be grounds to not include City in future allocations of City Aid Program, as determined
by County.
4.10 Waiver of Jury Trial Each Party acknowledges that it is aware of and has had
the opportunity to seek advice of counsel of its choice with respect to its rights to trial by jury,
and each Party, for itself and its successors, creditors, and assigns, does hereby expressly and
knowingly waive and release all such rights to trial by jury in any action, proceeding or
counterclaim brought by any Party hereto against the other (and/or against its officers, directors,
employees, agents, or subsidiary or affiliated entities) on or with regard to any matters
whatsoever arising out of or in any way connected with this Agreement and/or any other claim of
injury or damage.
4.11 Attorney's Fees In any action or proceeding to enforce or interpret any
provision of this Agreement, or where any provision hereof is validly asserted as a defense, the
Parties shall bear their own attorney's fees, costs and expenses.
4.12 Governing Law & Venue This Agreement has been negotiated and executed
in the State of California and shall be governed by and construed under the laws of the State of
California. In the event of any legal action to enforce or interpret this Agreement, the sole and
exclusive venue shall be a court of competent jurisdiction located in Orange County, California,
and the Parties hereto agree to and do hereby submit to the jurisdiction of such court,
notwithstanding Code of Civil Procedure Section 394.
//
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Page 5 of 6
Agreement No.D09-026
IN WITNESS WHEREOF, City has caused this Agreement to be executed by its Mayor and
attested by its Clerk, and County has caused this Agreement to be executed by the Chairman of
the Board of Supervisors and attested by its Clerk on the dates written opposite their signatures,
all thereunto duly authorized by the City Council and the Board of Supervisors, respectively.
Date:
ATTEST:
� 11610q
City of Newport Beach,
a municipal cgrporation
I:
Iviayor
APPROVED AS TO FORM:
By:
City Attorney
County of Orange,
a political subdivision of the State of
California
Date:�By:
Chainn n, Board of S e isors
SIGNED AND CERTIFIED THAT A COPY OF
THIS DOCUMENT HAS BEEN DELIVERED APPROVED AS TO FORM:
TO THE CHAIRMAN OF THE BOARD COUNTY COUNSEL
ORANGE COUNTY, CALIFORNIA
By: 66't& .. �
Darlene . loom
Clerk of the Boar of Supervisors of
Orange County, California
By:
L"Peputy
Page 6 of 6
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 9
April 14, 2009
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Public Works Department
David Webb
949 - 644 -3328 or dawebb @city.newport- beach.ca.us
SUBJECT: COUNTY OF ORANGE CITY AID PROGRAM AGREEMENT FOR
FISCAL YEAR 09110
RECOMMENDATION:
Execute the proposed agreement (three copies) between the County of Orange and the
City of Newport Beach as required for participation in the County's Proposition 42 City
Aid Program and authorize the Mayor and City Clerk to execute the agreement.
DISCUSSION:
On July 31, 2007, the Orange County Board of Supervisors adopted Resolution No. 07-
109, allowing for sharing of the County's Proposition 42 (Prop.42) funds with Orange
County cities, and approved an allocation of $10 million for the City Aid Program (CAP)
for Fiscal Year 08 -09. The CAP has been formulated to provide Orange County cities
with additional funds for city roadway maintenance projects.
Due to the recent economic downturn, the County's Prop 42 allocation from the State
was lower than anticipated for FY 08 -09 and may be lower for FY 09 -10 as well. For
this reason, the City Aid Program allocation is reduced for FY 09 -10. The County has
tentatively identified $7 million for the CAP should the Prop 42 allocation come through
as anticipated. Of this grant funding our City is to receive $197,344 in FY 09 -10 as our
population based percentage of the County's CAP program. Further, the County's CAP
grant funds are in addition to the Prop. 42 programmed funds the City is to receive in
FY 09 -10, direct from the State.
The attached Prop. 42 CAP agreement requires the City to commit to the following:
1. Maintain its existing "Maintenance of Effort" for use of local funds for street and
highway, maintenance, rehabilitation, reconstruction, and storm damage repair;
2. Expend (pay to contractors) its FY 09 -10 Orange County CAP Grant allocations
by June 30, 2011 on Prop. 42 eligible projects or return CAP allocation to
County; and
3. Provide County with FY 09 -10 CAP expenditure certification by August 31, 2011.
County of Orange City Aid Program Agreement for FY 09 -10
April 14, 2009
Page 2
Distribution of CAP allocations will be made to cities, on a first come first serve basis,
with the submittal of proof of project award documentation and City invoices. Any delay
or change to the State's Prop. 42 grant program may directly impact CAP
implementation. The County's tentative schedule to approve the CAP agreements is
June 2, 2009.
Environmental Review:
Not applicable.
Prepared by: Submitted by:
David Webb, P.E. to 01n G. Badum
Deputy Public Works Director /City Engineer P lic Works Director
Attachment: City Aid Program Agreement
Agreement No.D09 -026
PROPOSITION 42
CITY AID PROGRAM FUNDING AGREEMENT
This CITY AID PROGRAM FUNDING AGREEMENT, Agreement No. D09 -026
( "Agreement ") is made and entered into this day of 2009, by and between
County of Orange, California, a political subdivision of the State of California ( "County "), and
City of Newport Beach, a municipal corporation in the State of California ( "City "). The County
and City shall sometimes be referred to separately as a "Party" and collectively as the "Parties."
RECITALS
A. WHEREAS, Orange County cities have streets in need of routine roadway
maintenance, minor roadway widening (non- capacity enhancing) and storm damage
improvements, but have limited funds to address these needs.
B. WHEREAS, pursuant to Streets and Highways Code Section 1686, the California
State Legislature has determined that the improvement and maintenance of all city streets is of
general county interest. County believes that it is of general interest to the county and all the
cities within the county to extend financial aid to the cities for the general improvement and
maintenance of city streets in that the improvement of transportation congestion is of benefit to
all Orange County residents.
C. WHEREAS, County desires to assist Orange County cities with the improvement
and maintenance of city streets, and to help improve regional transportation needs within the
county. County receives Proposition 42 ("Prop. 42 ") allocations from the State's Transportation
Investment Fund ( "TIF ") for the purposes of street and highway maintenance, rehabilitation,
reconstruction and storm damage repair.
D. WHEREAS, With authorization from the State, County has established its Prop.
42 City Aid Program ( "CAP "). County will allocate a portion of County's Prop. 42 funds to
participating cities for the purposes of routine roadway maintenance, minor roadway' widening
(non- capacity enhancing) and storm damage improvements within the cities ( "CAP Funds ").
City's expenditure of CAP Funds is to be in accordance with California Constitution Article XIX
B Section 1 and Revenue and Taxation Code Section 7104, and all other applicable State rules,
regulations and guidelines ( "Prop. 42 Requirements ").
E. WHEREAS, City owns and operates streets in need of routine roadway
maintenance, minor roadway widening (non capacity enhancing) and storm damage
improvements, and acknowledges that it has limited funds by which to address these needs.
Therefore, City is in support of receiving CAP Funds.
NOW, THEREFORE, in consideration of the foregoing recitals of fact, the mutual covenants and
conditions contained herein and other consideration, the value and adequacy of which are hereby
acknowledged, the Parties agree as follows:
Page 1 of 6
Agreement NO.D09 -026
1. City Request for CAP Funds
Prior to disbursement of CAP Funds, City shall provide County with a request for CAP Funds
listing the proposed project(s), delineating all costs for project design, construction, and
construction management that comply with Prop. 42 Requirements, and referencing Agreement
by number. City shall also provide documentation, such as a city council minute order,
indicating award of the project(s), the contractor to which the project(s) was awarded, and the
amount of award, which award must be greater than the amount of the request (collectively,
"CAP Funds Request ").
2. Procedures for the Disbursement of CAP Funds
2.1 After County reviews and confirms eligibility of City's CAP Funds Request,
County will disburse CAP Funds to City in accordance with this Section 2 in an amount not to
exceed $197,344.00.
2.2 County will disburse CAP Funds to City in the order it receives eligible CAP
Funds Requests from all participating cities, i.e., on a "first come, first served" basis. County
will disburse CAP Funds to City upon County's receipt of its fiscal year 09110 Prop. 42
allocations from the State. CAP Funds will not be disbursed to City until such time that
adequate Prop. 42 funds are made available to County to pay all participating cities which have
previously submitted eligible CAP Funds Requests.
2.3 CAP Funds shall be allocated proportionally based on the percentage of City's
population compared to the total population of all participating cities as of the latest estimates
published by the Demographic Research Unit of the California Department of Finance.
2.4 County's disbursement of CAP Funds is subject to the State's allocation of Prop.
42 funds to County including, but not limited to, allocation delays by the State or changes to
Prop. 42 Requirements.
3. City Obligations
3.1 In order to receive CAP Funds, City shall maintain its existing Maintenance of
Effort ( "MOE ") of local funds for street and highway, maintenance, rehabilitation,
reconstruction, and storm damage repair. City must annually expend from its general fund for
street, road, and highway purposes an amount not less than the annual average of its
expenditures from its general fund during the 1996 -97, 1997 -98, and 1998 -99 fiscal years, as
reported to the State Controller pursuant to Streets and Highways Code Section 2151.
3.2 City must expend its CAP Funds between July 1, 2009 and June 30, 2011. Any
CAP Funds not expended by June 30, 2011 ( "Deadline ") shall promptly be returned to County,
but in no event shall City return CAP Funds later than August 31, 2011.
3.3 If City determines at any time that City cannot expend its CAP Funds by the
Deadline, City shall immediately notify County in writing of this determination. City shall then
Page 2 of 6
Agreement No.D09 -026
return its remaining CAP Funds within thirty (30) days of said notification. Should City's CAP
Funds be returned to County prior to Deadline, County will attempt to reallocate the funds to
other County projects. However, if County is unable to do so, the funds will be returned to the
State.
14 Upon the expenditure of all CAP Funds, City shall promptly submit, but no later
than August 31, 2011, an expenditure certification to County, listing the project(s) for which
CAP Funds were used and certifying that all expenditures of CAP Funds comply with Prop. 42
Requirements.
3.5 Upon request by County, City shall provide County, within thirty (30) days of the
request, all documentation and other information relating to City's expenditure of CAP Funds.
3.6 In the event of an audit by the State, City shall provide State and/or County all
documentation requested by the State within the timeframe required by the State. City shall
work cooperatively with County during the course of the audit. City shall attend all audits and
audit proceedings, as needed. If the State finds that any City expenditure of CAP Funds is
ineligible or does not comply with Prop. 42 Requirements, the amount of the ineligible
expenditure shall be immediately reimbursed to County, which will be returned to the State.
4. Miscellaneous Provisions
4.1 Availability of Funds County's obligation is subject to the availability of funds
appropriated for this purpose, and nothing herein shall be construed as obligating County to
expend or as involving County in any contract or other obligation for future payment of money
in excess of appropriations authorized by law. If County's total Prop. 42 allocation from the
State falls 10 percent or more below the anticipated eighteen million, three hundred thousand
dollars ($18,300,000) yearly allocation, County will adjust the seven million dollar ($7,000,000)
total CAP allocation by the same percentage. City's allocation of CAP Funds will likewise be
adjusted. There will be no adjustment if County's total Prop. 42 allocation from the State
exceeds County's anticipated allocation amount.
4.2 Indemnification & Hold Harmless City shall indemnify, defend with counsel
approved in writing, save and hold County and each of its elected officials, officers, directors,
agents and employees harmless from any and all claims, injuries, liabilities, actions, damages,
losses or expenses, including attorney's fees and costs, of every type and description to which
they may be subjected arising out of any act or omission of, its employees, representatives,
agents and independent contractors in connection with the implementation of the actions
described in this agreement. Should a City expenditure of CAP Funds be determined to be
ineligible by the State, City is further liable for any interest payments, fines, or other forfeitures
that may be assessed by the State.
Notwithstanding Sections 3.2 and 3.3, City shall return CAP Funds to County within thirty (30)
days should 1) the State or County deem any City expenditure of CAP Funds to be ineligible; or
2) the City Aid Program be found to be incompatible with State requirements.
Page 3 of 6
Agreement No.D09 -026
4.3 Assignment This Agreement shall be binding upon and inure to the benefit of
the successors and assigns of the Parties. No assignment of City's interest in this Agreement
shall be made without the written consent of County. Furthermore, City agrees that CAP Funds
shall not be expended on, given to, shared with, or otherwise provided to any other city, local
agency or other entity that is not contemplated under this Agreement.
4.4 Entirety & Amendments This Agreement contains the entire agreement between
the Parties with respect to the matters provided for herein. No alteration or variation of the terms
of this Agreement shall be valid unless made in writing and signed by the Parties; no oral
understanding or agreement not incorporated herein shall be binding on either of the Parties; and
no exceptions, alternatives, substitutes or revisions are valid or binding on County unless
authorized by County in writing.
4.5 Severability If any part of this Agreement is held, determined, or adjudicated to
be illegal, void, or unenforceable by a court of competent jurisdiction, the remainder of this
Agreement shall be given effect to the fullest extent reasonably possible.
4.6 Calendar Days Any reference to the word "day" or "days" herein means
calendar day or calendar days respectively, unless otherwise expressly provided.
4.7 Notices Notices or other communications which may be required or
provided under the terms of this Agreement shall be given as follows:
City: Director of Public Works /City Engineer
Public Works Department
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663
Phone 949 -644 -3311
Facsimile 949 - 644 -3039
County: Director /Chief Engineer, OC Engineering
OC Public Works
County of Orange
PO Box 4048
Santa Ana, CA 92702 -4048
Phone 714 -667 -3213
Facsimile 714 -834 -2496
All notices shall be in writing and deemed effective when delivered in person or deposited in the
United States mail, first class, postage prepaid and addressed as above. Notwithstanding the
above, the Parties may also provide notices by facsimile transmittal, and any such notice so
given shall be deemed to have been given upon receipt during normal business hours or, in the
event of receipt after business, on the following business day. Any notices, correspondence,
Page 4 of 6
Agreement No.D09 -026
reports and/or statements authorized or, required by this Agreement, addressed in any other
fashion shall be deemed not given.
4.8 Termination County may terminate this Agreement for any reason provided
that City has not awarded any project on which its CAP allocation will be expended. After City
has awarded a project on which its CAP allocation will be expended, County may terminate this
Agreement if City is in breach of this Agreement. Any such termination shall be accomplished
by delivery to City a Notice of Termination, which notice shall become effective not less than
thirty (30) days after receipt, specifying the reason for the termination, the extent to which CAP
funding is terminated, and the date upon which the termination is effective.
4.9 Breach The failure of City to comply with any of the terms and conditions of
this Agreement shall be a material breach of this Agreement. A breach of this Agreement by
City may be grounds to not include City in future allocations of City Aid Program, as determined
by County.
4.10 Waiver of Jury Trial Each Party acknowledges that it is aware of and has had
the opportunity to seek advice of counsel of its choice with respect to its rights to trial by jury,
and each Party, for itself and its successors, creditors, and assigns, does hereby expressly and
knowingly waive and release all such rights to trial by jury in any action, proceeding or
counterclaim brought by any Party hereto against the other (and /or against its officers, directors,
employees, agents, or subsidiary or affiliated entities) on or with regard to any matters
whatsoever arising out of or in any way connected with this Agreement and/or any other claim of
injury or damage.
4.11 Attorney's Fees In any action or proceeding to enforce or interpret any
provision of this Agreement, or where any provision hereof is validly asserted as a defense, the
Parties shall bear their own attorney's fees, costs and expenses.
4.12 Governing Law & Venue, This Agreement has been negotiated and executed
in the State of California and shall be governed by and construed under the laws of the State of
California. In the event of any legal action to enforce or interpret this Agreement, the sole and
exclusive venue shall be a court of competent jurisdiction located in Orange County, California,
and the Parties hereto agree to and do hereby submit to the jurisdiction of such court,
notwithstanding Code of Civil Procedure Section 394.
//
11
Page 5 of 6
Agreement No.D09 -026
IN WITNESS WHEREOF, City has caused this Agreement to be executed by its Mayor and
attested by its Clerk, and County has caused this Agreement to be executed by the Chairman of
the Board of Supervisors and attested by its Clerk on the dates written opposite their signatures,
all thereunto duly authorized by the City Council and the Board of Supervisors, respectively.
Date:
ATTEST:
City Clerk
Date:
SIGNED AND CERTIFIED THAT A COPY OF
THIS DOCUMENT HAS BEEN DELIVERED
TO THE CHAIRMAN OF THE BOARD
M.
Darlene J. Bloom
Clerk of the Board of Supervisors of
Orange County, California
City of Anaheim,
a municipal corporation
By:
Mayor
APPROVED AS TO FORM:
By:
City Attorney
County of Orange,
a political subdivision of the State of
California
By:
Chairman, Board of Supervisors
APPROVED AS TO FORM:
COUNTY COUNSEL
ORANGE COUNTY, CALIFORNIA
By:
Deputy
Page 6 of 6
Agreement No. D07 -153
PROPOSITION 42
CITY AID PROGRAM AGREEMENT
This CITY AID PROGRAM AGREEMENT, Agreement No. D07 -153 ( "Agreement") is made
and entered into this day of Pj?Kt V 20C%, by and between the County of Orange,
California, a political subdivision of the State of California ("County'), and the City of Newport
Beach, a municipal corporation in the State of California ( "City "). The County and City shall
sometimes be referred to separately as a "Party" and collectively as the "Parties."
RECITALS
A. The California State Legislature has determined that the improvement and
maintenance of all city streets is of general County interest. Likewise, the County believes that it
is of general County interest to extend aid to the cities within the County for the general
improvement and maintenance of City streets.
B. The County desires to assist Orange County cities with the improvement and
maintenance of city streets and to help improve regional transportation needs within the County.
Pursuant to California Constitution Article XIX B § 1 and Revenue Taxation Code § 7104, the
County receives State Proposition 42 (Prop. 42) allocations from the State's Transportation
Investment Fund (TIF) and Traffic Congestion Relief Fund (TCRF) for the purposes of street
and highway maintenance, rehabilitation, reconstruction and storm damage repair, which are
required to be deposited in the County's Road Fund.
C. Orange County cities have streets in need of routine roadway maintenance, minor
roadway widening (non- capacity enhancing) and storm drain improvements, but have limited
funds to address these needs.
D. With authorization from the State, the County has established its Prop. 42 City
Aid Program (CAP) whereby the County will provide a portion of the County's Prop. 42 funds
to the cities for the purposes of routine roadway maintenance, minor roadway widening (non-
capacity enhancing) and storm drain improvements within the cities. Such purposes are to be in
accordance with any and all laws, rules, regulations, and guidelines governing Prop. 42
allocations ( "Prop. 42 Requirements ").
E. The City owns and operates streets in need of routine roadway maintenance,
minor roadway widening (non capacity enhancing) and storm drain improvements, and
acknowledges that it has limited funds by which to address these needs. Therefore, the City is in
support of receiving a portion of the County's Prop. 42 allocation funds through CAP.
F. Pursuant to Streets & Highways Code section 1686, the Board of Supervisors has
passed Resolution No. 07 -109, adopted by a four -fifths vote of its members, finding that the
Purposes under this Agreement are of general County interest and that County aid shall be
extended therefore. This resolution provides for the basis and conditions upon which allocations
Page 1 of 7
• Agreement No. D07 -153
will be made from the County Road Fund for expenditures upon City streets, bridges and
culverts in cities within the County.
G. The County's City Aid Program (CAP) provides the guidelines for CAP, and is
incorporated by reference and made a part of this Agreement.
SECTION I
IT IS MUTUALLY UNDERSTOOD BY THE PARTIES THAT:
County shall:
A. Distribute city aid allocation(s) per requirements of this agreement, the CAP, and
Exhibit B. CAP allocations to cities shall be based on each city's population as of January 2007
information published by Demographic Research Unit of the California Department of Finance.
B. Distribute city aid allocation(s) to cities, on a first come first serve basis, after
receiving invoice along with proof of award documentation from the City for its project(s). Each
City project will require invoice and proof of award documentation. The allocation will be based
on City's invoice amount, which can include design, construction and construction
administration costs. County will not begin disbursing allocations until County has received its
first Prop. 42 allocation from the State for fiscal year 08/09. After County has received its first
Prop. 42 allocation, County will disburse an allocation to the City upon receipt of award
documents. County CAP allocations are entirely subject to Prop. 42 allocations to County from
the State including any delays or changes in State law, rules, regulations, and guidelines.
C. Coordinate with Cities on CAP projects. County's Director of Public Works or
designee can authorize the substitution of CAP project(s) listed on Exhibit A to maximize full
expenditure of the City's CAP allocation(s). The City must make this request in writing, and the
proposed new project(s) shall be eligible for Prop. 42 funds and shall not exceed the Board
approved City CAP allocation(s).
D. Make every effort to expend any CAP funds returned to the County by the City if
City returns funds in a timely manner. However, funds cannot be expended by the County; they
shall be returned to the State.
E. Review Annual CAP expenditure certification submitted by City (City's submittal
will be no later than August 31 of each year). This certification is a list of completed projects
and a statement that each project meets Prop. 42 requirements and is in compliance with the
purposes of CAP (See CAP for sample of certification). City is responsible for ensuring that all
projects meet CAP and Prop. 42 eligibility requirements and have expended such funds in the
appropriate fiscal year.
F. Conduct a City expenditure assessment each year to verify if City is expending its
CAP funds in the timeframe contemplated under this Agreement. REOEIVED
CLERK Of THE 5041W
Page 2 of 7 JAN 14 1008
0
City shall:
SECTION II
• Agreement No. D07 -153
A. Maintain its existing "Maintenance of Effort" (MOE) of local funds for street and
highway, maintenance, rehabilitation, reconstruction, and storm damage repair. The City must
annually expend from its general fund for street, road, and highway purposes an amount not less
than the annual average of its expenditures from its general fund during the 1996 -97, 1997 -98,
and 1998 -99 fiscal years, as reported to the controller pursuant to the Streets & Highways Code
Section 2151, in order to participate in the County Proposition 42 City Aid Program.
B. Provide County with invoice, along with proof of award documentation, for its
project(s) in order to receive CAP funds. Each City project will require invoice and proof of
award documentation. CAP allocation will be based on the contract award amount. County will
not begin disbursing allocations until County has received its first Prop. 42 allocation from the
State for fiscal year 08/09. After County has received its first Prop. 42 allocation, County will
disburse a CAP allocation to the City upon receipt of invoice and award documents on a first
come first serve basis. County's CAP allocations are subject to receiving Prop. 42 allocations
from the State.
C. After receiving CAP funds from the County, advise the County, no later than two
(2) months before the end of the expenditure cycle of each year, of any CAP funds that the City
determines will not be expended within the time requirements of CAP. Any such CAP funds the
City will be unable to expend by the deadline shall be returned to the County a minimum of
thirty (30) calendar days prior to the end of the respective expenditure cycle. The County will
attempt to reallocate these funds to other County projects that will expend the funds within the
time requirements. However if the County is unable to expend or reallocate these funds, they
will be returned to the State.
D. Expend CAP funds no later than June 30, 2010. Eligible expenditure for fiscal
year 08 /09 CAP allocation must occur between July 1, 2008 and June 30, 2010. Any funds not
expended by this deadline shall be returned to the County in a timely manner, but no later than
60 days.
E. Prepare and submit to County annually, no later than August 31, 2010, CAP
expenditure certification for all project(s) completed that corresponding fiscal year. This
certification is a list of projects and a statement that each project meets Prop. 42 requirements
and is in compliance with the purposes of CAP (See CAP for sample of certification).
F. In the event of an audit by the State, provide State all project and finance
documentation as required within the timeframe specified by the State. City shall attend all
audits involving its CAP projects as required by State. If the State finds that any City
expenditure is ineligible or out of compliance with Prop. 42 requirements, that expenditure shall
be reimbursed to the County, which will be returned to the State. The City shall reimburse the
Page 3 of 7
0 • Agreement No. D07 -153
County no later than 60 calendar days from State's formal determination, if State determines
CAP expenditures are ineligible.
SECTION III
Miscellaneous Provisions:
A. Availability of Funds County will recalculate the $IOM total CAP allocation to
the cities if the County's total Prop. 42 allocation falls 10% or more below the anticipated $19M
yearly allocation. The adjustment down of the $10M City allocations will be in the same ratio as
the County's allocation is adjusted down from the anticipated $19M. There will be no
adjustment if the County's Prop. 42 allocation exceeds $19M.
B. Project Documentation Cities shall promptly provide County and/or State, upon
request, all project and finance documentation.
C. Indemnification City shall indemnify, defend with counsel approved in
writing, save and hold County and each of its elected officials, officers, directors, agents and
employees harmless from any and all claims, injuries, liabilities, actions, damages, losses or
expenses of every type and description to which they may be subjected arising out of any act or
omission of, its employees, representatives, agents and independent contractors in connection
with the implementation of the actions described in this agreement. City shall return CAP funds
to the County (or State as appropriate) within the timeframe contemplated under this Agreement
should 1) City fail to expend all of its CAP allocation within the specified timeframe; 2) the
State deem any City expenditure to be ineligible; or 3) the City Aid Program be found to be
incompatible with State requirements.
D. Assignment This Agreement shall be binding upon and inure to the benefit of
the successors and assigns of the Parties. No assignment of City's interest in this Agreement
shall be made without the written consent of the County. Furthermore, City agrees that CAP
allocations shall not be expended on, given to, shared with, or otherwise provided to any other
city, local agency or other entity that is not contemplated under this Agreement.
E. Entirety & Amendments This Agreement contains the entire agreement
between the Parties with respect to the matters provided for herein. No alteration or variation of
the terms of this Agreement shall be valid unless made in writing and signed by the Parties; no
oral understanding or agreement not incorporated herein shall be binding on either of the Parties;
and no exceptions, alternatives, substitutes or revisions are valid or binding on County unless
authorized by County in writing.
F. Severability If any part of this Agreement is held, determined, or adjudicated to
be illegal, void, or unenforceable by a court of competent jurisdiction, the remainder of this
Agreement shall be given effect to the fullest extent reasonably possible.
G. Calendar Days Any reference to the word "day" or "days" herein means
calendar day or calendar days, respectively unless otherwise expressly provided.
Page 4 of 7
0 • Agreement No. D07 -153
H. Notices Notices or other communications which may be required or
provided under the terms of this AGREEMENT shall be given as follows:
City: Director of Public Works /City Engineer
Public Works Department
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92658 -8915
Phone 949 - 644 -3311
Facsimile 949 - 644 -3318
ME
County: Director of Public Works, RDMD
County of Orange
PO Box 4048
Santa Ana, CA 92702 -4048
Phone 714 - 834 -4377
Facsimile 714 - 834 -2496
All notices shall be in writing and deemed effective when delivered in person or
deposited in the United States mail, first class, postage prepaid and addressed as above.
Notwithstanding the above, the Parties may also provide notices by facsimile transmittal, and
any such notice so given shall be deemed to have been given upon receipt during normal
business hours or, in the event of receipt after business, on the following business day. Any
notices, correspondence, reports and/or statements authorized or required by this Agreement,
addressed in any other fashion shall be deemed not given.
I. Termination County may terminate this Agreement for any reason provided
that the City has not awarded any project on which its CAP allocation will be expended. After
the City has awarded a project on which its CAP allocation will be expended, County may
terminate this Agreement if the City is in breach of this Agreement. Any such termination shall
be accomplished by delivery to City a Notice of Termination, which notice shall become
effective not less than thirty (30) days after receipt, specifying the reason for the termination, the
extent to which CAP funding is terminated, and the date upon which the termination is effective.
No termination shall become effective if, within thirty (30) days after receipt of a Notice of
Termination, City either cures the default involved or, if not reasonably susceptible of cure
within said thirty (30) day period, City proceeds thereafter to complete the cure in a manner and
time line acceptable to County. During this period before the effective termination date, City
and County shall meet to attempt to resolve any dispute. In the event of termination, County
may proceed with the project work in a manner deemed proper by County.
J. Breach The failure of the City to comply with any of the terms and conditions
of this Agreement shall be a material breach of this Agreement. In such event the County may:
Page 5 of 7
0
• Agreement No. D07 -153
1. Afford the City a written Notice of Breach and Notice of Termination providing
for thirty (30) days within which to cure the breach, in accordance with Section
III.I (Termination);
2. Discontinue all CAP allocations during the period in which the City is in breach;
and
3. Offset CAP allocations against any invoices billed by the City.
Page 6 of 7
Agreement No. D07-153
IN WITNESS WHEREOF, City has caused this Agreement to be executed by its Mayor and
attested by its Clerk, and County has caused this Agreement to be executed by the Chairman of
the Board of Supervisors and attested by its Clerk on the dates written opposite their signatures,
all thereunto duly authorized by the City Council and the Board of Supervisors, respectively.
Date
ATTEST:
City of Newport Beach,
a ml
I IS Io"d By:
mayor
APPROVED AS TO FORM:
yad�k-'I� A - :
B -- C fi, eR'`--1
Y
City Clerk City Attorney
County of Orange,
a political subdivision of the State of
California
Date: 4 - g orZ ' b c6 By; '4�
Chairman, Bo 'rd of Supervi 'ors
SIGNED AND CERTIFIED THAT A COPY OF
THIS DOCUMENT HAS BEEN DELIVERED APPROVED AS TO FORM:
TO THE CHAIRMAN OF THE BOARD COUNTY COUNSEL
ORANGE COUNTY, CALIFORNIA
M,
By: G By:
Darlene J. Bloom
Clerk of the Board of Supervisors of
Orange County, California
Page 7 of 7
City of Newport Beach
Proposition 42 City Aid Program
Project List
Date: 11 -14 -07
To: County of Orange
City Contact Person: Andy Tran Phone: 949 -644 -3315
Existing Pavement Condition Index (PCI) * *: 79
Exhibit A
Agreement No.: (D07 -153)
Fiscal Year: FY08 /09
CAP Allocation Amount *: (See Exhibit B)
Item
Project
Project Limits
Project Description
Estimated Cost
Estimated Award Date
(Pavement Maintenance
and/or Storm Damage
Repair)
Eastbluff Drive
a) Eastbluff Dr.- Jamboree Rd. to Jamboree Rd.,
AC Pavement
$1,200,000
July 2008
1
Pavement Rehabilitation
b) Vista Del Sol - Eastbluff Dr. to Vista Del Oro.,
overlay
c) Vista Del Oro- Vista Flora to Vista Truca
Marguerite Avenue
Marguerite Ave. - Coast Hwy. to Fifth Ave.
AC Pavement
$1,100,000
June 2009
2
Pavement Reconstruction
reconstruction
Balboa Boulevard
Balboa Blvd. — Coast Hwy. to 26 th St.
AC Pavement
$1,300,000
April 2009
3
Pavement Rehabilitation
overlay
4
Dover Drive
Dover Dr. (Residential) — Westcliff Dr. to end of
AC Pavement
$350,000
February 2009
(Residential) Pavement
cul -de -sac by Irvine Ave.
overlay
Rehabilitation
5
Kings Road Pavement
Kings Rd. — Cliff Dr. to Cliff Dr.
AC Pavement
$780,000
March 2009
Reconstruction
reconstruction
6
Tustin Ave., Oceanview
a) Tustin Ave. — Coast Hwy. to Oceanview Ave.
AC Pavement
$300,000
May 2009
Ave & Avon Ave.
b) Oceanview Ave. — Avon St. to Tustin Ave.
overlay
Pavement Rehabilitation
c) Avon Ave. — Riverside Ave. to Tustin Ave.
Total Cost: $5,030,000
* City Aid allocation for FY08 /09 must be fully expended by 6/30/10.
** Evaluation of Pavement Condition Index (PCI) should be consistent with OCTA's final report on "Countywide Assessment of Existing and
Future Pavement Needs," dated March 2006.
w.
r, Exhibit B
Agreement No.: D07.153
Orange County Funded Proposition 42 City Aid Program
FY08 /09 Allocation Schedule to Cities
ID
Orange County Cities
Population
(Department of Finance
Jan. 1, 2007)
% Population in Q.C.
Prop. 42 CAP
Allocations Based on
Population
1
Santa Ana
353,428
11.86%
$1.186,006
2
Anaheim
345,556
11.60%
$1,159,590
3
Huntington Beach
202,250
6.79%
$678,695
4
Irvine
202,079
6.78%
$678,121
5
Garden Grove
172,781
5.80%
$579,805
6
Orange
138,640
4.65%
$465,237
7
Fullerton
137,367
4.61%
$460,965
8
Costa Mesa
113,805
3.82%
$381,898
9
Mission Viejo
98,483
3.30%
$330,482
10
Westminster
92,870
3.12%
$311,646
11
Newport Beach
84,218
2.83%
$282,612
12
Buena Park
82,452
2.77%
$276,686
13
Lake Forest
78,243
2.63%
$262,562
14
Tustin
70,350
2.36%
$236,075
15
Ycrba Linda
67,904
2.28%
$227,867
16
San Clemente
67,373
2.26%
$226 085
17
Laguna Niguel
66,608
2.24%
$223,518
18
La Habra
62,483
2.10%
$209,676
19
Fountain Valley
57,741
1.94%
$193,763
20
Placentia
51,597
1.73%
$173,145
21
Rancho Santa Margarita
49,718
1.67%
$166,840
22
Cypress
49,284
1.65%
$165,383
23
AlisoVie'o
45,037
1.51%
$151132
24
Brea .
39,870
1.34%
$133,793
25
Stanton
38,981
1.31%
$130,809
26
Dana Point
36,946
1.24%
$123,980
27
San Juan Capistrano
36,452
1.22%
$122,323
28
Laguna Hills
33,391
1.12%
$112,051
29
Seal Beach
25,962
0.87%
$87,121
30
Laguna Beach
25,131
0.84%
$84,333
31
Laguna Woods
18,426
0.62%
$61,833
32
La Palma
16,162
0.54%
$54,235
33
Los Alamitos
12,146
0.41%
$40,759
34
Villa Park
6,251
0.21%
$20,977
Total
2,979,985
100%
$10,000,000
Note: $10M City Aid Program is based on the County receiving its expected Prop. 42 allocation of approx. $19M for FY08109.
1 oft
IF
E
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 8
January 8, 2008
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Public Works Department
David Webb
949 - 644 -3328 or dawebb @city.newport- beach.ca.us
SUBJECT: COUNTY OF ORANGE CITY AID PROGRAM AGREEMENT FOR
FISCAL YEAR 08 -09
RECOMMENDATION:
Execute the proposed agreement (three copies) between the County of Orange and the
City of Newport Beach as required for participation in the County's Proposition 42 City
Aid Program and authorize the Mayor and City Clerk to execute the agreement.
DISCUSSION:
On July 31, 2007, the Orange County Board of Supervisors adopted Resolution No. 07-
109, allowing for sharing of the County's Proposition 42 (Prop.42) funds with Orange
County cities, and approved an allocation of $10 million for the City Aid Program (CAP)
for Fiscal Year 08 -09. The CAP has been formulated to provide Orange County cities
with additional funds for city roadway maintenance projects.
Of this grant funding our City is to receive $282,612 in FY 08 -09 as our population
based percentage of the County's CAP program. Further, the County's CAP grant
funds are in addition to the Prop. 42 programmed funds the City is to receive in FY 08-
09, direct from the State.
The attached Prop. 42 CAP agreement requires the City to commit to the following:
1. Maintain its existing "Maintenance of Effort" for use of local funds for street and
highway, maintenance, rehabilitation, reconstruction, and storm damage repair;
2. Expend (pay to contractors) its Orange County CAP Grant allocations by June
30, 2010 on Prop. 42 eligible projects or return CAP allocation to County; and
3. Provide County with FY 08 -09 CAP expenditure certification by August 31, 2010.
The County will distribute CAP Grant allocations to the City upon the County receiving
their Prop. 42 funding from the State and receipt of the approved attached CAP
agreement for approval by the Board of Supervisors. Distribution of CAP allocations
A
• County of Orange Lid Program Agreement for FY 08.09
January 8, 2008
Page 2
will be made to cities, on a first come first serve basis, with the submittal of proof of
project award documentation and City invoices. It must also be noted that successful
implementation of the CAP is dependent on the County receiving its programmed Prop.
42 funding from the State for FY 08 -09. Any delay or change to the State's Prop. 42
grant program may directly impact CAP implementation. CAP allocations shall be
returned to the County if allocations are not expended (paid to contractors) by June 30,
2010. The County's tentative schedule to approve the CAP agreements is April 2008.
Environmental Review:
Not applicable.
Prepared by: 4Dd
David Webb, P.E. m
Deputy Public Works Di rector /City Engineer ector
Attachment: City Aid Program Agreement
0
PROPOSITION 42
CITY AID PROGRAM AGREEMENT
Agreement No. D07 -153
This CITY AID PROGRAM AGREEMENT, Agreement No. D07 -153 ( "Agreement') is made
and entered into this day of 200_, by and between the County of Orange,
California, a political subdivision of the State of California ("County"), and the City of Newport
Beach, a municipal corporation in the State of California ("City"). The County and City shall
sometimes be referred to separately as a "Party" and collectively as the "Parties."
RECITALS
A. The California State Legislature has determined that the improvement and
maintenance of all city streets is of general County interest. Likewise, the County believes that it
is of general County interest to extend aid to the cities within the County for the general
improvement and maintenance of City streets.
B. The County desires to assist Orange County cities with the improvement and
maintenance of city streets and to help improve regional transportation needs within the County.
Pursuant to California Constitution Article XIX B § 1 and Revenue Taxation Code § 7104, the
County receives State Proposition 42 (Prop. 42) allocations from the State's Transportation
Investment Fund (TIF) and Traffic Congestion Relief Fund (TCRF) for the purposes of street
and highway maintenance, rehabilitation, reconstruction and storm damage repair, which are
required to be deposited in the County's Road Fund.
C. Orange County cities have streets in need of routine roadway maintenance, minor
roadway widening (non - capacity enhancing) and storm drain improvements, but have limited
funds to address these needs.
D. With authorization from the State, the County has established its Prop. 42 City
Aid Program (CAP) whereby the County will provide a portion of the County's Prop. 42 fimds
to the cities for the purposes of routine roadway maintenance, minor roadway widening (non-
capacity enhancing) and storm drain improvements within the cities. Such purposes are to be in
accordance with any and all laws, rules, regulations, and guidelines governing Prop. 42
allocations ( "Prop. 42 Requirements ").
E. The City owns and operates streets in need of routine roadway maintenance,
minor roadway widening (non capacity enhancing) and storm drain improvements, and
acknowledges that it has limited funds by which to address these needs. Therefore, the City is in
support of receiving a portion of the County's Prop. 42 allocation funds through CAP.
F. Pursuant to Streets & Highways Code section 1686, the Board of Supervisors has
passed Resolution No. 07 -109, adopted by a four -fifths vote of its members, finding that the
Purposes under this Agreement are of general County interest and that County aid shall be
extended therefore. This resolution provides for the basis and conditions upon which allocations
Page 1 of 7
i •
Agreement No. D07 -153
will be made from the County Road Fund for expenditures upon City streets, bridges and
culverts in cities within the County.
G. The County's City Aid Program (CAP) provides the guidelines for CAP, and is
incorporated by reference and made a part of this Agreement.
SECTION I
IT IS MUTUALLY UNDERSTOOD BY THE PARTIES THAT:
County shall:
A. Distribute city aid allocation(s) per requirements of this agreement, the CAP, and
Exhibit B. CAP allocations to cities shall be based on each city's population as of January 2007
information published by Demographic Research Unit of the California Department of Finance.
B. Distribute city aid allocation(s) to cities, on a first come first serve basis, after
receiving invoice along with proof of award documentation from the City for its project(s). Each
City project will require invoice and proof of award documentation. The allocation will be based
on City's invoice amount, which can include design, construction and construction
administration costs. County will not begin disbursing allocations until County has received its
first Prop. 42 allocation from the State for fiscal year 08/09. After County has received its first
Prop. 42 allocation, County will disburse an allocation to the City upon receipt of award
documents. County CAP allocations are entirely subject to Prop. 42 allocations to County from
the State including any delays or changes in State law, rules, regulations, and guidelines.
C. Coordinate with Cities on CAP projects. County's Director of Public Works or
designee can authorize the substitution of CAP project(s) listed on Exhibit A to maximize full
expenditure of the City's CAP allocation(s). The City must make this request in writing, and the
proposed new project(s) shall be eligible for Prop. 42 funds and shall not exceed the Board
approved City CAP allocation(s)..
D. Make every effort to expend any CAP funds returned to the County by the City if
City returns funds in a timely manner. However, funds cannot be expended by the County; they
shall be returned to the State.
E. Review Annual CAP expenditure certification submitted by. City (City's submittal
will be no later than August 31 of each year). This certification is a list of completed projects
and a statement that each project meets Prop. 42 requirements and is in compliance with the
purposes of CAP (See CAP for sample of certification). City is responsible for ensuring that all
projects meet CAP and Prop. 42 eligibility requirements and have expended such funds in the
appropriate fiscal year.
F. Conduct a City expenditure assessment each year to verify if City is expending its
CAP funds in the timeframe contemplated under this Agreement.
Page 2 of 7
• - • Agreement No. D07 -153
SECTION II
City shall:
A. Maintain its existing "Maintenance of Effort" (MOE) of local funds for street and
highway, maintenance, rehabilitation, reconstruction, and storm damage repair. The City must
annually expend from its general fund for street, road, and highway purposes an amount not less
than the annual average of its expenditures from its general fund during the 1996 -97, 1997 -98,
and 1998 -99 fiscal years, as reported to the controller pursuant to the Streets & Highways Code
Section 2151, in order to participate in the County Proposition 42 City Aid Program.
B. Provide County with invoice, along with proof of award documentation, for its
project(s) in order to receive CAP funds. Each City project will require invoice and proof of
award documentation. CAP allocation will be based on the contract award amount. County will
not begin disbursing allocations until County has received its first Prop. 42 allocation from the
State for fiscal year 08/09. After County has received its first Prop. 42 allocation, County will
disburse a CAP allocation to the City upon receipt of invoice and award documents on a first
come first serve basis. County's CAP allocations are subject to receiving Prop. 42 allocations
from the State.
C. After receiving CAP funds from the County, advise the County, no later than two
(2) months before the end of the expenditure cycle of each year, of any CAP funds that the City
determines will not be expended within the time requirements of CAP. Any such CAP funds the
City will be unable to expend by the deadline shall be returned to the County a minimum of
thirty (30) calendar days prior to the end of the respective expenditure cycle. The County will
attempt to reallocate these funds to other County projects that will expend the funds within the
time requirements. However if the County is unable to expend or reallocate these funds, they
will be returned to the State.
D. Expend CAP funds no later than June 30, 2010. Eligible expendittire for fiscal
year 08/09 CAP allocation must occur between July 1, 2008 and June 30, 2010. Any funds not
expended by this deadline shall be returned to the County in a timely manner, but no later than
60 days.
E. Prepare and submit to County annually, no later than August 31, 2010, CAP
expenditure certification for all project(s) completed that corresponding fiscal year. This
certification is a list of projects and a statement that each project meets Prop. 42 requirements
and is in compliance with the purposes of CAP (See CAP for sample of certification).
F. In the event of an audit by the State, provide State all project and finance
documentation as required within the timeframe specified by the State. City shall attend all
audits involving its CAP projects as required by State. If the State finds that any City
expenditure is ineligible or out of compliance with Prop. 42 requirements, that expenditure shall
be reimbursed to the County, which will be returned to the State. The City shall reimburse the
Page 3 of 7
Agreement No. D07 -153
County no later than 60 calendar days from State's formal determination, if State determines
CAP expenditures are ineligible.
SECTION III
Miscellaneous Provisions:
A. Availability of Funds County will recalculate the $10M total CAP allocation to
the cities if the County's total Prop. 42 allocation falls 10% or more below the anticipated $19M
yearly allocation. The adjustment down of the $10M City allocations will be in the same ratio as
the County's allocation is adjusted down from the anticipated $19M. There will be no
adjustment if the County's Prop. 42 allocation exceeds $19M.
B. Project Documentation Cities shall promptly provide County and/or State, upon
request, all project and finance documentation.
C. Indemnification City shall indemnify, defend with counsel approved in
writing, save and hold County and each of its elected officials, officers, directors, agents and
employees harmless from any and all claims, injuries, liabilities, actions, damages, losses or
expenses of every type and description to which they may be subjected arising out of any act or
omission of, its employees, representatives, agents and independent contractors in connection
with the implementation of the actions described in this agreement. City shall return CAP funds
to the County (or State as appropriate) within the timeframe contemplated under this Agreement
should 1) City fail to expend all of its CAP allocation within the specified timeframe; 2) the
State deem any City expenditure to be ineligible; or 3) the City Aid Program be found to be
incompatible with State requirements.
D. Assignment This Agreement shall be binding upon and inure to the benefit of
the successors and assigns of the Parties. No assignment of City's interest in this Agreement
shall be made without the written consent of the County. Furthermore, City agrees that CAP
allocations shall not be expended on, given to, shared with, or otherwise provided to any other
city, local agency or other entity that is not contemplated under this Agreement.
E. Entirety & Amendments This Agreement contains the entire agreement
between the Parties with respect to the matters provided for herein. No alteration or variation of
the terms of this Agreement shall be valid unless made in writing and signed by the Parties; no
oral understanding or agreement not incorporated herein shall be binding on either of the Parties;
and no exceptions, alternatives, substitutes or revisions are valid or binding on County unless
authorized by County in writing.
F. Severability If any part of this Agreement is held, determined, or adjudicated to
be illegal, void, or unenforceable by a court of competent jurisdiction, the remainder of this
Agreement shall be given effect to the fullest extent reasonably possible.
G. Calendar Days Any reference to the word "day" or "days" herein means
calendar day or calendar days, respectively unless otherwise expressly provided.
Page 4 of 7
Agreement No. D07 -153
H. Notices Notices or other communications which may be required or
provided under the terms of this AGREEMENT shall be given as follows:
City: Director of Public Works /City Engineer
Public Works Department
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92658 -8915
Phone 949 - 644 -3311
Facsimile 949 - 644 -3318
and
County: Director of Public Works, RDMD
County of Orange
PO Box 4048
Santa Ana, CA 92702 -4048
Phone 714 - 8344377
Facsimile 714 - 834 -2496
All notices shall be in writing and deemed effective when delivered in person or
deposited in the United States mail, first class, postage prepaid and addressed as above.
Notwithstanding the above, the Parties may also provide notices by facsimile transmittal, and
any such notice so given shall be deemed to have been given upon receipt during normal
business hours or, in the event of receipt after business, on the following business day. Any
notices, correspondence, reports and/or statements authorized or required by this Agreement,
addressed in any other fashion shall be deemed not given.
I. Termination County may terminate this Agreement for any reason provided
that the City has not awarded any project on which its CAP allocation will be expended. After
the City has awarded a project on which its CAP allocation will be expended, County may
terminate this Agreement if the City is in breach of this Agreement. Any such termination shall
be accomplished by delivery to City a Notice of Termination, which notice shall become
effective not less than thirty (30) days after receipt, specifying the reason for the termination, the
extent to which CAP funding is terminated, and the date upon which the termination is effective.
No termination shall become effective if, within thirty (30) days after receipt of a Notice of
Termination, City either cures the default involved or, if not reasonably susceptible of cure
within said thirty (30) day period, City proceeds thereafter to complete the cure in a manner and
time line acceptable to County. During this period before the effective termination date, City
and County shall meet to attempt to resolve any dispute. In the event of termination, County
may proceed with the project work in a manner deemed proper by County.
J. Breach The failure of the City to comply with any of the terms and conditions
of this Agreement shall be a material breach of this Agreement. In such event the County may:
Page 5 of 7
0
0
Agreement No. D07 -153
1. Afford the City a written Notice of Breach and Notice of Termination providing
for thirty (30) days within which to cure the breach, in accordance with Section
III.I (Termination);
2. Discontinue all CAP allocations during the period in which the City is in breach;
and
3. Offset CAP allocations against any invoices billed by the City.
Page 6 of 7
Agreement No. D07 -153
IN WITNESS WHEREOF, City has caused this Agreement to be executed by its Mayor and
attested by its Clerk, and County has caused this Agreement to be executed by the Chairman of
the Board of Supervisors and attested by its Clerk on the dates written opposite their signatures,
all thereunto duly authorized by the City Council and the Board of Supervisors, respectively.
Date:
ATTEST:
City Clerk
Date:
City of Newport Beach,
a municipal corporation
LE
Mayor
APPROVED AS TO FORM:
LE
City Attorney
County of Orange,
a political subdivision of the State of
California
LE
Chairman, Board of Supervisors
SIGNED AND CERTIFIED THAT A COPY OF
THIS DOCUMENT HAS BEEN DELIVERED APPROVED AS TO FORM:
TO THE CHAIRMAN OF THE BOARD
0
Darlene J. Bloom
Clerk of the Board of Supervisors of
Orange County, California
COUNTY COUNSEL
ORANGE COUNTY, CALIFORNIA
By:
uty
Page 7 of 7
City of Newport Beach
Proposition 42 City Aid Program
Project List
Date: 11 -14 -07
To: County of Orange
City Contact Person: Andy Tr an Phone: 949 - 644 -3315
Existing Pavement Condition Index (PCI) * *: 79
Exhibit A
Agreement No.: D07453
Fiscal Year: FY08 /09
CAP Allocation Amount *: (See Exhibit B).
Item
Project
Project Limits
Project Description
Estimated Cost
Estimated Award Date
(Pavement Maintenance
and/or Storm Damage
Repair)
Eastbluff Drive
1) EastbluffDr.- Jamboree Rd. to Jamboree Rd.,
AC Pavement
$1,200,000
July 2008
1
Pavement Rehabilitation
2) Vista Del Sol - Eastbluff Dr. to Vista Del Oro.,
overlay
3) Vista Del Oro- Vista Flora to Vista Truca
Marguerite Avenue
East Coast Highway to Fifth Avenue
AC Pavement
$1,100,000
March 2009
2
Pavement Reconstruction
reconstruction
Balboa Blvd.
West Coast Highway to 26` Street
AC Pavement
$800,000
April 2009
3
overlay
Total Cost: $3,100,000
* City Aid allocation for FY08 /09 must be fully expended by 6/30/10. ' •
**
Evaluation of Pavement Condition Index (PCI) should be consistent with OCTA's final report on "Countywide Assessment of Existing and
Future Pavement Needs," dated March 2006.
Exhibit B -
Agreement No.: D07 -153
Orange County Funded Proposition 42 City Aid Program
FY08/09 Allocation Schedule to Cities
ID
Orange County Cities
Population
(Department of Finance
Jan. 1, 2007)
% Population in O.C.
Prop. 42 CAP
Allocations Based on
Population
1 I
Santa Ana
353,428
11.86%
$1,186,006
2
Anaheim
345,556
11.60%
$1,159590
3
Huntington Beach
202,250
6.79%
$678,695
4
Irvine
202,079
6.78%
$678,121
5
Garden Grove
172,781
5.80%
$579,805
6
Orange
138,640
4.65%
$465,237
7
Fullerton
137,367
4.61%
$460,965
8
Costa Mesa
113,805
3.82%
$381,898
9
Mission Viejo
98,483
3.30%
$330,482
10
Westminster
92,870
3.12%
$311,646
11
Newport Beach
84,218
2.83%
$282,612
12
Buena Park
82,452
2.77%
$276,686
13
Lake Forest
78,243
2.63%
$262,562
14
Tustin
70,350
2.36%
$236,075
15
Yorba Linda
67,904
2.28%
$227,867
16
San Clemente
67,373
2.26%
$226,085
17
Laguna Niguel
66,608
2.24%
$223,518
18
La Habra
62,483
2.10%
$209,676
19
Fountain Valley
57,741
1.94%
$193,763
20
Placentia
51,597
1.73%
$173,145
21
Rancho Santa Mar adta
49,718
1.67%
$166,840
22
Cypress
49,284
1.65%
$165,383
23
Also Viejo
45,037
1.51%
$151,132
24
Brea
39,870
1.34%
$133,793
25
Stanton
38,981
1.31%
$130,809
26
Dana Point
36,946
1.24%
$123,980
27
San Juan Capistrano
36,452
1.22%
$122,32
28
Laguna Hills
33,391
1.12%
$112,051
29
Seal Beach
25,962
0.87%
$87,121
30
Laguna Beach
25,131
0.84%
$84,333
31
Laguna Woods
18,426
0.62%
$61,833
32
La Palma
16,162
0.54%
$54,235
33
Los Alamitos
12,146
0.41%
$40,759
34
Villa Park
6,251
0.21%
$20,977
Total
2,979,9851
100%
$10,000,000
Note: $10M City Aid Program is based on the County receiving its expected Prop. 42 allocation of approx. $19M for FY08/09.
1 oft