HomeMy WebLinkAboutCounty of Orange - 2009-05-04Agreement No.D09-015
PROPOSITION 42
CITY AID PROGRAM[ FUNDING AGREEMENT
This CITY AID PROGRAM FUNDING AGREEMENT, Agreement No. D09-015
("Agreement") is made and entered into this day of M Ny ;.sg , 2010, by and between
County of Orange, California, a political subdivision of the State of California ("County"), and
City of Huntington 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.D09-015
0.
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 $471,440.00.
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.
Page 2 of 6
Agreement No.D09-015
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
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.
Page 3,of 6
Agreement No.D09-015
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.
4.3 Assianinent 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 Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
Phone 714-536-5074
Facsimile 714-536-5233
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
Page 4 of 6
Agreement No.D09-015
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.
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.
//
//
//
Page 5 of 6
Agreement No.D09-015
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:
Date: J - 015 - (b
City of Huntington Beach,
a municipal corporation
By:
Mayor
APPROVED AS TO FORM:
ay-,:-'7)
ity Attorney 13 UA IDS
County of Orange,
a political subdivision of the State of
California
By:
Chairm n, Board of Opervisors
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
i
By:
Darle J. Bloom
Clerk of the B rd of Supervisors of
Orange County, California
By.
Deputy
Page 6 of 6
O R A N O fi C O U N T Y Bryan Spesys, Director
300 N. Flower Street
Santa Ana, CA
PubcWorkshP.O. Box4048
Santa Ana, CA 92702-4048
Our Community. Our Commitment.
Telephone: (714) 834-2300
Fax (714) 834-5188
June 18, 2009
is iJ
J U N 2 2 2009
Mr. Travis Hopkins ` -- f
City of Huntington Beach I
2000 Main Street 1^ r- `, I ; : , I
Huntington Beach, CA 92648 �`'
Subject: Counb Proposition 42 City Aid Program Fiscal Year 2009-10 - Availability of Funds
--D,m
Dear Mr. Hopkins:
This letter is to inform you that County Board of Supervisors approval of Proposition 42 City Aid Program
agreements has been continued until the State's budget is approved.
The State Budget Conference Committee took action this past week to recommend transfer of $986
million of the local share (cities and counties) of gas tax revenues in Fiscal Year 2009-2010 and $745
million in Fiscal Year 2010-2011, which would correspondingly severely reduce the County's gas tax
revenues. In addition, the State Department of Finance has proposed to suspend and borrow the first
two quarters of Proposition 42 payments to local agencies in Fiscal Year 2009-2010.
Until the State Budget is resolved, the County will not have a clear picture of transportation funding, and
whether CAP will be fully funded at $7M for FY 2009-10, or to some lesser amount.
Please note that should the City advertise a project, which relies partly or in whole on CAP funds, before
receiving an executed agreement from the County, the City does so with the knowledge that they may
not receive some/all of a CAP allocation.
We understand that this may necessitate the delay of affected projects. We will provide status updates
on County efforts to resolve the FY 2009-10 CAP program as soon as we are able.
Questions may be 'rected to Mr. Grant Anderson at (714) 834-5034.
Sincerely, JZL�
Ignacio G. Ochoa, P.E.
Director/Chief Engineer, OC Engineering
cc: Alisa Drakodaidis, Deputy CEO, OC Infrastructure
Bryan Speegle, Director, OC Public Works
Ryan Baron, County Counsel
Mary Fitzgerald, Auditor Controller
Claire Moynihan, Accounting
Liz Jewell, Administration
Ted Rlgoni, Road Division
ZVROJECT ADMINISTRATIOMProp 42 - PowerslClty Aid Prcgram\FY09-1M2009-06-16 CAP Funds Avallability Letter.doc
i t`
Council/Agency Meeting Held: It
'�Q�
Deferred/Continued to:
-AAp rov d ❑ Conditionally Approved ❑ Denied
City 1E k's S* nature
Council Meeting Date: 5/4/2009
Department �G Number: PW 09-17
CITY OF HUNTINGTON BEACH
REQUEST FOR CITY COUNCIL ACTION
SUBMITTED TO: HONORABLE MAYOR AND CITY *CNC:IL MEMBERS
SUBMITTEDBY: FREDA. WILSON, CITY ADMINISPREPARED BY: TRAVIS K. HOPKINS, PE, DIRECU
SUBJECT: Approve Proposition 42 City Aid Program Agreement with the County of
Orange
Statement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachment(s)
Statement of Issue: An agreement with the County of Orange is necessary to receive
grant funding from their Proposition 42 City Aid Program. This program distributes a portion
of the County allocation from the State of California to local cities for street maintenance.
Funding Source: In FY 2009/10, funding in the amount of $471,440 will be granted to
the City. No local match is required. The program is intended to be annual.
Recommended Action: Motion to:
Approve and authorize the Mayor and City Clerk to execute the Proposition 42 City Aid
Program Funding Agreement.
Alternative Action(s): Do not approve the Proposition 42 City Aid Program Funding
Agreement. This action would result in the loss of $471,440 in grant funding.
REQUEST FOR CITY COUNCIL ACTION
MEETING DATE: 5/4/2009 DEPARTMENT ID NUMBER: PW 09-17
Analysis: The County of Orange has instituted the Proposition 42 City Aid Program (CAP)
to allocate a portion of $7 million from State Proposition 42 funding to local cities for street
maintenance improvements. Funding will be distributed to each of the cities in the County
based on city population. The funding must be used for the purposes of routine roadway
maintenance, non -capacity enhancing minor roadway widening, and storm drain
improvements related to storm damage.
In April 2009, the City submitted an application for its allocation of $471,440. The proposed
agreement must be executed by the City as a condition of the CAP. These funds will be
utilized to supplement the City's Residential Street Overlay Program. The residential streets
to be overlaid are located throughout the City and were chosen from the 2008 backlog list.
Public Works Commission Action: Not required.
Strategic Plan Goal:
1-1 Improve the City's plan for funding and completing infrastructure needs, and develop
strategies for resolving crucial infrastructure problems to preserve the physical foundation of
the community and enable the community's value to grow.
C-1 Improve transportation through a variety of means.
Environmental Status: Not applicable
Attachment Us:
y
Page Number No: Description
Proposition 42 City Aid Pro ram Agreement. (3-copies)
-2- 4/14/2009 11:55 AM
J
Agreement No.D09-015
PROPOSITION 42
CITY AID PROGRAM FUNDING AGREEMENT
This CITY AID PROGRAM FUNDING AGREEMENT, Agreement No. D09-015
("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 Huntington 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."
RFCTTAT C
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.D09-015
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 $471,440.00.
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.
Page 2 of 6
Agreement No.D09-015
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
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) A 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 shalt 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.
Page 3 of 6
Agreement No.D09-015
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.
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 Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
Phone 714-536-5074
Facsimile 714-536-5233
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
Page 4 of 6
Agreement No.D09-015
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.
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.
Page 5 of 6
Agreement No.D09-015
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: AV �Y r oW0
ATTEST:
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
City of Huntington Beach,
a municipal corporation
Mayor
APPROVED AS TO FORM:
B•
n
4 ",) D City Attorne 0V-o 1-03loq
County of Orange,
a political subdivision of the State of
California
Chairman, Board of Supervisors
APPROVED AS TO FORM:
COUNTY COUNSEL
ORANGE COUNTY, CALIFORNIA
Page 6 of 6
Deputy
INITIATING DEPARTMENT:
Public Works
SUBJECT:
Approve Proposition 42 City Aid Program Agreement
with the County of Orange
COUNCIL MEETING DATE:
May 4, 2009
RCA ATTACHI 'NT„_
STATES .
Ordinance (w/exhibits & legislative draft if applicable)
Attached
❑
Not Applicable
Resolution (w/exhibits & legislative draft if applicable)
Attached
❑
Not Applicable
Tract Map, Location Map and/or other Exhibits
Attached
❑
Not A plicable
Contract/Agreement (w/exhibits if applicable)
Attached
Signed in full by the City Attorney)
Not Applicable
❑
Subleases, Third Party Agreements, etc.
Attached
❑
(Approved as to form by City Attorney)
Not Applicable
Certificates of Insurance (Approved by the City Attorney)
Attached
❑
Not Applicable
Fiscal Impact Statement (Unbudgeted, over $5,000)
Attached
❑
Not Applicable
Bonds (If applicable)
Attached
❑
Not Applicable
Staff Report (If applicable)
Attached
Applicable
Commission, Board or Committee Report (If applicable)
Attached
❑
Not Applicable
Findings/Conditions for Approval and/or Denial
Attached
❑
Not Applicable
RCA Author: T. Broussard:
City ®f Huntington Beach
2000 Main Street ® Huntington Beach, CA 92648
OFFICE OF THE CITY CLERK
JOAN L. FLYNN
CITY CLERIC
May 5, 2009
Director/Chief Engineer, OC Engineering
OC Public Works Department
County of Orange
PO Box 4048
Santa Ana, CA 92702-4048
To Whom It May Concern:
Enclosed please find three originals of the Proposition 42 City and Program Funding
Agreement.
Upon execution, please return a complete copy to:
Joan L. Flynn
City Clerk
2000 Main Street
Huntington Beach CA 92648
Your attention to this matter is greatly appreciated.
JF:pe
Enclosure: Agreements
G:followup :agrmtltr
Sister Cities: Anjo, Japan • Waitakere, New Zealand
(Telephone: 714-536-5227