HomeMy WebLinkAbout06 AGMNT D09-035 W/OC, PROP 42 FY 09/10 05-05-09Agenda Item 6
~= -~~~~ Reviewed:
. AGENDA REPORT city Manager
`~~ ~ e.i ~ Finance Director
MEETING DATE: MAY 5, 2009
TO: WILLIAM A. HUSTON, CITY MANAGER
FROM: TIM D. BEREFT, DIRECTOR OF PUBLIC WORKS/CITY ENGINEER
SUBJECT: APPROVAL OF AGREEMENT NO. D09-035 WITH THE COUNTY OF
ORANGE FOR THE PROPOSITION 42 CITY AID PROGRAM FOR
FISCAL YEAR 2009/10
SUMMARY
Approval of Agreement No. D09-035 will allow the City of Tustin to share in the County of
Orange's Proposition 42 allocation under their City Aid Program (CAP) for roadway
maintenance projects. The County of Orange has approved $7 million to share with Orange
County cities on a pro-rata basis based on population. The City of Tustin's share is
$173,220.
RECOMMENDATION
It is recommended that the City Council approve Agreement No. D09-035 with the County of
Orange for the Proposition 42 City Aid Program, and authorize the Mayor and City Clerk to
execute the document on behalf of the City.
FISCAL IMPACT
The City is expected to receive $173,220 from the County of Orange from the CAP. CAP
allocations shall be returned to the County if the allocation is not expended by June 30,
2011.
BACKGROUND
On July 31, 2007, the Orange County Board of Supervisors adopted Resolution No. 07-109,
allowing for the sharing of the County's Proposition 42 (Prop. 42) funds with Orange County
cities, and approved an allocation of $10M for the City Aid Program for Fiscal Year (FY)
08/09. The CAP has been formulated to provide Orange County cities with additional funds
for city roadway maintenance projects.
The County has tentatively identified $7 million for the FY 09/10 CAP from their anticipated
Prop. 42 allocation.
Approval of Agreement No. D09-035 with the County of Orange for the Proposition 42 City
Aid Program for Fiscal Year 2009/10
May 5, 2009
Page 2
The City of Tustin can anticipate receiving $173,220 in FY 09/10 based on our population
percentage of the county's overall CAP program. Further, the county's CAP grant funds are
in addition to the Prop. 42 programmed funds ($702,014) the City of Tustin is to receive in
FY 09/10, directly from the State of California.
Agreement No. D09-035 requires the City of Tustin to commit to the following:
Maintain its existing "Maintenance of Effort" for the use of local funds for street and
highway maintenance, rehabilitation, reconstruction, and storm damage repair;
2. Expend (pay to contractors) its CAP allocation(s) by June 30, 2011 on Proposition 42
eligible projects or return CAP allocations to the county; and
3. Provide the county with FY 09/10 CAP expenditure certification by August 31, 2011.
The county will distribute CAP allocations to the City upon the county receiving Proposition
42 funding from the state, and approval of the attached CAP Agreement by the Board of
Supervisors. Distribution of CAP allocations will be made to the City on a first come, first
served basis, with the submittal of proof of project award documentation and City invoice(s).
It must also be noted that successful implementation of the CAP is dependent on the county
receiving its programmed Proposition 42 funding from the state for FY 09/10. Any delay or
change to the State's Proposition 42 Grant Program may directly impact CAP
implementation.
The county's tentative schedule is to approve the CAP Agreement in June 2009. The City
Attorney has reviewed and approved the agreement as to form.
-~ /~~.c ^
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Tim D. Serlet
Director of Public Works/City Engineer
Dana R. Kasdan
Engineering Services Manager
Attachments: City Aid Program Agreement No. D09-035
S:\City Council Items\2009 Council Items\Approval of Agmt with County for Prop 42 CAP FY0910.doc
Agreement No.D09-035
PROPOSITION 42
CITY AID PROGRAM FUNDING AGREEMENT
This CITY AID PROGRAM FUNDING AGREEMENT, Agreement No. D09-035
("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 Tustin, 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.D09-035
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 $173,220.00.
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. Cit,~ atg ions
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.D09-035
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 andlor 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 dollaz ($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.D09-035
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 Entiret~& 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 Tustin
300 Centennial Way
Tustin, CA 92780
Phone 714-573-3150
Facsimile 714-832-0825
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.D09-035
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 regazd 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.
//
//
//
Page 5 of 6
Agreement No.D09-035
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.
City of Tustin,
a municipal corporation
Date:
By:
Mayor
ATTEST:
APPROVED AS TO FORM:
r
By:
City Clerk City Attorney
County of Orange,
a political subdivision of the State of
California
Date:
SIGNED AND CERTIFIED THAT A COPY OF
THIS DOCUMENT HAS BEEN DELIVERED
TO THE CHAIRMAN OF THE BOARD
By:
Darlene J. Bloom
Clerk of the Board of Supervisors of
Orange County, California
By:
Chairman, Board of Supervisors
APPROVED AS TO FORM:
COUNTY COUNSEL
ORANGE COUNTY, CALIFORNIA
By:
Deputy
Page 6 of 6
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Exhibit B
Orange County Funded Proposition 42 City Aid Program
Proposed FY 09-10 Allocations to Cities
ID
Orange County Cities Population
(Department of Finance
Jan. 1, 2008)
% Population in O.C. Prop. 42 CAP
Allocations Based on
Population FY 09-10
1 Santa Ana 353,184 11.78% $824,311
2 Anaheim 346,823 11.56% $809,464
3 Irvine 209,806 7.00% $489,675
4 Huntin ton Beach 201,993 6.73% $471,440
5 Garden Grove 173,067 5.77% $403,928
6 Oran a 140,849 4.70% $328,733
7 Fullerton 137,437 4.58% $320,770
8 Costa Mesa 113,955 3.80% $265,964
9 Mission Vie'o 98,572 3.29% $230,061
10 Westminster 93,027 3.10% $217,120
11 New ort Beach 84,554 2.82% $197,344
12 Buena Park 82,768 2.76% $193,176
13 Lake Forest 78,317 2.61% $182,787
14 Tustin 74,218 2.47% $173,220
15 Yorba Linda 68,312 2.28% $159,436
16 San Clemente 67,892 2.26% $158,456
17 La una Ni uel 66,877 2.23% $156,087
18 La Habra 62,635 2.09% $146,186
19 Fountain Valle 57,925 1.93% $135,194
20 Placentia 51,727 1.72% $120,728
21 Rancho Santa Mar Arita 49,764 1.66% $116,146
22 C ress 49,541 1.65% $115,626
23 Aliso Vie'o 45,249 1.51% $105,608
24 Brea 40,081 1.34% $93,547
25 Stanton 39,276 1.31 % $91,668
26 Dana Point 36,982 1.23% $86,314
27 San Juan Ca istrano 36,782 1.23% $85,847
28 La una Hills 33,421 1.11 % $78,003
29 Seal Beach 25,986 0.87% $60,650
30 La una Beach 25,131 0.84% $58,654
31 La una Woods 18,442 0.61% $43,043
32 La Palma 16,176 0.54% $37,754
33 Los Alamitos 12,191 0.41% $28,453
34 Villa Park 6,259 0.21% $14,608
Total 2,999,219 100% $7,000,000
Note: $7M City Aid Program is based on the County receiving its expected Prop. 42 allocation of approx. $18.3M for FY09-10.
http~//www dof ca gov/research/demograahic/reports/estimates/e-1 2006-07/
Agreement No.D09-035
PROPOSITION 42
CITY AID PROGRAM FUNDING AGREEMENT
This CITY AID PROGRAM FUNDING AGREEMENT, Agreement No. D09-035
("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 Tustin, 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.D09-035
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 $173,220.00.
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 Obli atg ions
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
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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.
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Agreement No.D09-035
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 Tustin
300 Centennial Way
Tustin, CA 92780
Phone 714-573-3150
Facsimile 714-832-0825
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,
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Agreement No.D09-035
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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Agreement No.D09-035
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.
City of Tustin,
a municipal corporation
Date:
By:
ATTEST:
City Clerk
Date:
SIGNED AND CERTIFIED THAT A COPY OF
THIS DOCUMENT HAS BEEN DELIVERED
TO THE CHAIRMAN OF THE BOARD
By:
Darlene J. Bloom
Clerk of the Board of Supervisors of
Orange County, California
Mayor
APPROVED AS TO FORM:
f
By:
City Attorney
County of Orange,
apolitical subdivision of the State of
California
By:
Chairman, Board of Supervisors
APPROVED AS TO FORM:
COUNTY COUNSEL
ORANGE COUNTY, CALIFORNIA
By:
Deputy
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