HomeMy WebLinkAboutORANGE, COUNTY OF (8) - 2009A-20p9-127
Agreement No. D09-055
PROPOSITION 1B
CITY AGREEMENT
This PROPOSITION 1B CITY AGREEMENT, Agreement No. D09-055 ("Agreement") is
made and entered into this day of ~~[EM f~12 a~ 2009, by and
between the County of Orange, California, a political subdivision of the State of California
("County"), and the City of Santa Ana, 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, the City owns and operates streets in need of traffic congestion and
traffic safety improvements, including routine roadway maintenance and storm drain
improvements, and acknowledges that it has limited funds by which to address these needs;
B. WHEREAS, pursuant to Section 1686 of the Streets & Highways Code, the
California State Legislature has determined that the improvement and maintenance of all city
streets is of general county interest. It is of general interest to the County and the City to extend
financial aid to the City 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, the County desires to assist the City with a portion of the County's
Proposition 1B ("Prop. 1B") allocation for the improvement and maintenance of City streets,
and to help improve regional transportation needs within the county;
D. WHEREAS, the County will allocate a portion of the County's Prop. 1B funds to
the City for the purposes of improvements to local transportation facilities that will assist in
reducing traffic congestion and further deterioration, improving traffic flows, or increasing
traffic safety ("Prop. 1B Funds"). The expenditure of Prop. 1B Funds is to be in accordance
with Government Code section 8879.20 et seq., and all other applicable State rules, regulations
and guidelines ("Prop. 1B Requirements"); and
E. WHEREAS, the County's second allocation (Supplemental 2008 State
Appropriation) and third allocation (2008-09 State Appropriation) of Prop. 1B funds may only
be expended after County receives its Prop. 1B allocations from the State.
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:
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Agreement No. D09-055
SECTION I
A. Upon approval of the City's project(s) by the Board of Supervisors, County shall
include the City's project(s) in the Prop. 1B project list that the County submits to the State
Department of Finance for review and disbursement of the County's second and third Prop. 1B
allocations. The City project(s) approved by the Board of Supervisors for Prop. 1B funding is
attached hereto as the County of Orange funded Proposition 1B Project(s) in City of Santa Ana
(Exhibit A).
B. Upon receipt of the County's second and third Prop. 1B allocations from the State,
County will disburse a portion of its Prop. 1B Funds to the City in the amount shown on Exhibit
A, or as limited by Section II.A, below.
C. The City shall expend Prop. 1B Funds on the project(s) listed in Exhibit A in
accordance with all Prop 1B Requirements. This includes, but is not limited to, meeting the
project delivery and expenditure deadlines, and using the County's Prop. 1B allocation to reduce
City's traffic congestion and further deterioration, improving traffic flows, or increasing traffic
safety.
D. Prop. 1B Funds shall be expended no later than June 30~' of the third fiscal year
("Deadline") following the fiscal year in which each particular allocation was received from the
State by the County. Upon receipt of the County's second and third Prop. 1B allocations from
the State, County shall notify City of Prop. 1B expenditure deadlines. Any Prop. 1B Funds not
expended by the Deadline shall promptly be returned to the County, but in no event shall funds
be returned later than sixty (60) days after the Deadline. If the City determines at any time that
the City cannot expend Prop. 1B Funds by the Deadline, the City shall immediately notify the
County in writing of this determination. The City shall then return its remaining Prop. 1B Funds
within sixty (60) days of said notification.
E. County will conduct a City expenditure assessment status report in accordance with
the reporting schedule set by the Department of Finance in order to verify if City is expending
its Prop. 1B Funds in accordance with Prop. 1B Requirements. The status report shall include
the date of project award, amount of award, percent completion of project, estimated completion
date, the amount of funds that have been expended, the remaining County Prop. 1B allocation to
be expended, and any other information or documentation relating to City's expenditure of Prop.
1B Funds. Upon request by County, the City shall provide County with said Prop. 1B Funds
status report within fourteen (14) days of the request.
F. In the event of an audit by the State, the City shall provide State and/or County all
documentation requested by the State within the timeframe required by the State. The City shall
work cooperatively with the County during the course of the audit. The City shall attend all
audits and audit proceedings, as needed. If the State finds that any City expenditure of Prop. 1 B
Funds is ineligible or does not comply with Prop. 1B Requirements, the amount of the ineligible
expenditure and any other penalties or assessments shall be immediately reimbursed to the
County, which will be returned to the State. The amount of the ineligible expenditure including
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Agreement No. D09-055
any other penalties or assessments shall be reimbursed to the County no later than sixty (60)
days from the State's determination.
SECTION II
MISCELLANEOUS PROVISIONS:
A. Availability of Funds The County's obligation is subject to the availability of
funds appropriated for this Agreement, and nothing herein shall be construed as obligating the
County to expend funds or as involving the County in any contract or other obligation for future
payment of money in excess of appropriations authorized by law. Further, County's distribution
of funds to the City depends entirely on the County receiving its Prop. 1B allocation from the
State. County shall not disburse the City's allocation until such time that the County receives its
Prop. 1B allocation from the State. County also reserves the right to limit, reduce, delay or
terminate the City's Prop. 1B disbursement identified in Exhibit A for any reason, and at any
time, including, but not limited to, a State delay or reduction in the County's Prop. 1B
allocation, ineligibility of all or a portion of City's project(s), or suspension or reduction of other
County road funds.
B. Indemnification City shall indemnify, defend with counsel approved in writing
by County, 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. Should the State determine
that any City Prop. 1B Funds to be ineligible, City is liable for any interest payments, fines,
penalties or other forfeitures that may be assessed by the State.
City shall return Prop. 1B Funds to the County within the timeframe contemplated under this
Agreement should 1) City fail to expend any portion of its Prop. 1B Funds within the timeframe
under this Agreement; 2) the State or County deem any City expenditure of Prop. 1B Funds to
be ineligible; or 3) this Agreement be found to be incompatible with State law.
C. 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 Prop 1B
Funds shall not be expended on, given to, shared with, or otherwise provided to any other city,
local agency or other entity not contemplated under this Agreement.
D. 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.
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Agreement No. D09-055
E. 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.
F. Calendar Days Any reference to the word "day" or "days" herein means calendar
day or calendar days, respectively, unless otherwise expressly provided.
G. 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 Santa Ana
20 Civic Center Plaza
Santa Ana, CA 92702
Phone: (714) 647-5654
Facsimile: (714) 647-6954
and
County: Director/Chief Engineer, OC Engineering
Orange County 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, reports and/or statements authorized or required by this Agreement,
addressed in any other fashion shall be deemed not given.
H. Termination County may terminate this Agreement for any reason provided that
such termination shall be accomplished by delivery of a Notice of Termination, which notice
shall become effective not less than thirty (30) days after receipt.
I. 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:
1. Afford the City a written Notice of Breach and Notice of Termination, and in
the County's discretion, provide for thirty (30) days within which to cure the
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Agreement No. D09-055
breach;
2. Discontinue all Prop. 1B Fund allocations during the period in which the City is
in breach; and/or
3. Offset Prop. 1B Fund allocations against any invoices billed by the City.
A breach of this Agreement by City may be grounds to not include City in future allocations of
the Prop. 1B Funds, as determined by the County.
J. Binding Obli action The Parties to this Agreement represent and warrant that this
Agreement has been duly authorized and executed and constitutes the legally binding obligation
of their respective organization or entity enforceable in accordance with its terms.
K. Governing Law and Venue This Agreement has been negotiated and executed in
the State of California and shall be governed by and construed under the laws of the State of
California. In the event of any legal action to enforce or interpret this Agreement, the sole and
exclusive venue shall be a court of competent jurisdiction located in Orange County, California,
and the Parties hereto agree to and do hereby submit to the jurisdiction of such court,
notwithstanding Code of Civil Procedure, Section 394.
L. Attorney's Fees In any action or proceeding to enforce or interpret any provision
of this Agreement, or where any provision hereof is validly asserted as a defense, each party
shall bear its own attorney's fees, costs and expenses.
M. 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.
!!/
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Agreement No. D09-055
IN WITNESS. WHEREOF, City has caused this Agreement to be executed by its Mayor and
attested by its Clerk, on the dates written opposite their signatures, all thereunto duly authorized
by the City Council.
City of Santa Ana,
a municipal corporation
Date:
By.
Manager
ATTEST:
City Cle
APPROVED AS TO FORM:
By: ~.~ ~~
~ City Attorne
Page 6 of 7
Agreement No. D09-055
IN WITNESS WHEREOF, County has caused this Agreement to be executed by the Chair of
the Board of Supervisors and attested by its Clerk on the dates written opposite their signatures,
all thereunto duly authorized by the Board of Supervisors.
Date: a - a q ' ~~
SIGNED AND CERTIFIED THAT A COPY OF
THIS DOCUMENT HAS BEEN DELIVERED
TO THE CHAIRMAN OF THE BOARD
County of Orange,
a political subdivision of the State of California
By: G~ t,.c
hair, Board of ervisors
APPROVED AS TO FORM:
COUNTY COUNSEL
ORANGE COUNTY, CALIFORNIA
~i!
By: By;
Darlene J. oom Deputy
Clerk of the Board o Supervisors of
Orange County, California
Page 7 of 7
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