21-0622_ORANGE, COUNTY OF_Funding Assistance AgreementMA -080-21010094
SAN JUAN CAPISTRANO ORTEGA HIGHWAY WIDENING DESIGN
FUNDING ASSISTANCE AGREEMENT
This Funding Assistance Agreement ("Agreement") is entered into as of this day of Z�L�
2021 (the "Effective Date'), by and between the COUNTY OF ORANGE, a political subdivision of the
State of California (hereinafter referred to as "County'), and the CITY OF SAN JUAN CAPISTRANO, a
California municipal corporation (hereinafter referred to as "City'). County and City are sometimes
hereafter collectively referred to as the "Parties" and individually as a "Party'.
RECITALS
A. Rancho Mission Viejo ("RMV") is the authorized agent and manager of the owners ("Owners") of
certain real property located easterly of the boundaries of City.
B. Owners entered into a development agreement with the County ("Development Agreement")
whereby Owners committed to assist in the provision of certain transportation improvements,
including but not limited to the widening of certain portions of State Route 74 ("Ortega
Highway'), through implementation of the South County Roadway Improvement Program
("SCRIP"), adopted by County in November 2004.
C. City desires to complete the widening of Ortega Highway from Calle Entradero to the eastern
boundary of City ("Project') and is charged with coordinating the design of the widening pursuant
to the funding application approval that City has obtained from the Orange County Transportation
Authority ("OCTA").
D. Owners have agreed to provide County certain funds to satisfy OCTA's Measure M2 Grant
matching funds requirement in a not -to -exceed amount of $1,750,000 ('Matched Funds"). These
Matched Funds will support City's design work and will satisfy the Owners' remaining funding
obligation for the Project under the Development Agreement.
E. County is desirous of facilitating the transfer of Owners' Matched Funds to City subject to the
terms and conditions set forth in this Agreement hereunder.
AGREEMENT
Based upon the foregoing Recitals, wholly incorporated herein by reference, and for good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged by both
Parties, County and City hereby agree as follows:
1. Financial Assistance
The Owner's Matched Funds shall be initially deposited into the County's SCRIP and subsequently
provided to the City solely to fund the timely completion of the Project's Plans, Specifications and
Estimate ("PS&E") Phase including but not limited to the Project's initial designs, environmental
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studies and other preliminary items. County shall not be responsible for providing any additional
financial contribution to City, for the Project's PS&E Phase, in excess of the Matched Funds
defined herein.
2. Disposition of Matched Funds
County's payments to the City shall be in accordance with the following process:
a) City shall submitto County an invoice for $500,000 of the Matched Funds upon execution
of this Agreement and submit a separate invoice for the remaining balance of the
Matched Funds after January 2022. Supporting information; including, but not limited to,
an itemized breakdown of the Project's PS&E work to be performed and other relevant
documentation necessary to support the invoiced amount should accompany each
invoice.
b) County shall remit payments to City in the amount of each invoice within thirty (30)
working days after receipt, subject to subsection (c) of this section.
c) In the eventthat County disputes an invoice, it will notify City in writing within fifteen (15)
working days of receipt of all supporting documentation. Under receipt of a notice of
dispute, City will have seven (7) working days to appeal County's determination. In the
event of an appeal, County fall have fifteen (15) working days to review the appeal and
issue a final determination concerning the request for payment.
d) At the completion of the Project's PS&E phase, City agrees to i) provide County with an
accounting of the used Matched Funds, and ii) refund any unused Matched Funds to the
County within sixty (60) days upon completion of the PS&E work.
3. Term ofA¢reement
The term of this Agreement shall commence upon the Effective Date and shall remain in full force
and effect until City's receipt of all Matched Funds contemplated herein; provided, however, all
indemnification provisionsshall remain in effect until terminated or modified in writing by mutual
agreement of the Parties.
4. Indemnification
Neither County, nor Owners, nor any officer, member, director, employee or affiliated thereof
(collectively the "Indemnitees") shall be responsible for any damage or liability occurring by
reason of anything done or omitted to be done by City or its contractors under or in connection
with anywork, authority orjurisdiction delegated to or performed by City or its contractors under
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this Agreement. It is also understood and agreed that City shall fully indemnify, defend with
counsel approved in writing by the Indemnitees, and hold the Indemnitees harmless from any
liability, including attorneys' fees and costs, imposed for injury, as defined in Government Code
Section 810.8, , occurring by reason of anything done or omitted to be done by City or its
contractors under or in connection with any work, authority or jurisdiction delegated to or
performed by City or its contractors under this Agreement.
5. Notices
All notices, request and demands hereunder must be in writing to be effective. All notices
required to be given hereunder or by operation of law in connection with the performance or
enforcement thereof shall be deemed given upon delivery if delivered personally (which includes
notice delivered by messenger or overnight courier) or, if delivered by mail, shall be deemed given
three (3) days after being deposited by certified mail in any duly authorized United States mail
depository, postage prepaid. All such notices shall be addressed as follows, or to such others
address or addresses as the Parties may from time to time specify in writing:
To County:
County of Orange
Public Works Department
601 N. Ross Street
Santa Ana, California 92701
Attention: OC Infrastructure/Road Fee Team
Telephone No.: (714) 955-0301
To City:
City of San Juan Capistrano
Public Works Department
32400 Paseo Adelanto
San Juan Capistrano, California 92675
Attention: Public Works Director
Telephone No.: (949) 234-4580
6. Miscellaneous
a) Entire Agreement. Waivers, and Amendments
This Agreement constitutes the entire understanding and agreement of the Parties with
respect to the subject matter set forth herein and supersedes all previous negotiations,
discussions, and agreements between the Parties with respect to all orthe subject matter
hereof. All waivers of the provisions of this Agreement must be in writing and signed by
the appropriate authorities of the party to be changed. A waiver of the breach of the
MA -080-21010094
covenants, conditions or obligations under this Agreement by any Party shall not be
construed as a waiver of any succeeding breach of the same or other covenants,
conditions, or obligations of this Agreement. Any amendment or modification to this
Agreement must be in writing and executed by the appropriate authorities of County and
City.
b) Successor and Assigns
This Agreement shall be binding upon the Parties and shall inure to all successor in
interest of County and to all successors in interest and assigns of City.
c) Attorneys' Fees and Cost
If either Party to this Agreement commences an action against the other Party to this
Agreement arising out of or in connection with this Agreement, each Party shall be
responsible for their legal costs, including attorney's fees, expert fees, costs of
investigation.
d) Interpretation; Governing Law
This Agreement shall be construed according to its fair meaning and as if prepared by
both Parties hereto. This Agreement shall be construed in accordance with the internal
laws of the State of California without regard to conflict of law principles.
e) Severability
If any terms, provisions, covenants, or conditions of this Agreement is held by a court of
competent jurisdiction to be invalid, void, or unenforceable, the remainder of this
Agreement shall not be affected to the extent such remaining provisions are not rendered
impractical taking into consideration the purposes of this Agreement.
f) Limitation on County Liability
In no event shall any member, partner, office, director, shareholder, employee or agent
of the County be personally liable for any default or breach of this Agreement, or for any
amount that may become due to City, or for any abdication under -the terms of this
Agreement.
g) Non -Liability of Officials and Employees of the City
No official or employee of City shall be personally liable to County in the event of any
default or breach by City, under the terms of this Agreement.
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h) No third -Party Beneficiaries
This Agreement is made only for the benefit of the Parties hereto; it is not intended that
any rights under this Agreement shall accrue to any third person.
Q Independent Contractor
It is expressly understood and agreed by the Parties that nothing herein shall be deemed
to create an agency,joint venture, or partnership between the Parties hereto, or between
the Parties and any engineer, contractor or other professional retained by City related to
the design work.
j) Authority to Execute
The person executing this Agreement warrant and represent that they have the authority
to execute this Agreement and represent that they have the authority to bind the Parties
for which they are signing to the performance of the obligations hereunder.
k) Execution in Counterpart
This Agreement may be executed in several counterparts, and all so executed shall
constitute one agreement binding on both Parties hereto, notwithstanding that both
Parties are not signatories to the original or the same counterpart.
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IN WITNESS WHEREOF, City has caused this Agreement to be executed by its City Manager and attested
by its City Clerk, and County has caused this Agreement to be executed by 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 SAN JUAN CAPISTRANO
a municipal corporation
D 202Y By.
B njaD injAegeI, J y Manager
Approved as to Form:
3�
By: 9
City Cler Jeffrey S. Ballinger, City Attorney
Date: �lO<4�IOz/I
SIGNED AND CERTIFIED THAT A COPY OF THIS
DOCUMENT HAS BEEN DELIVERED TO THE
CHAIRMAN OF THE BOARD OF SUPERVISORS
PER GC § 25103, RESO. 79-1535
Clerk of the Board of Supervisors
County of Orange, California
MA -080-21010094
COUNTY OF ORANGE,
a political subdivision of the State of California
By:
Chairman Andrew Do
Board of Supervisors
County of Orange, California
APPROVED AS TO FORM:
By: ��d1 74y %iy2/l7lj�iil
Deputy County Counsel
County of Orange, California