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08-0422_ORANGE, COUNTY OF_City Aid Progarm Agreement+• • Agreement No. D07-158 PROPOSITION 42 CITY AID PROGRAM AGREEMENT This CITY AID PROGRAM AGREEMENT, Agreement No. D07-158 ("Agreement") is made and entered into this day of AlMil. o-2 , 2005, by and between the County of Orange, California, a political subdivision of the State of California ("County"), and the City of San Juan Capistrano, a municipal corporation in the State of California ("City"). The County and City shall sometimes be referred to separately as a "Party" and collectively as the "Parties." RECITALS A. The California State Legislature has determined that the improvement and maintenance of all city streets is of general County interest. Likewise, the County believes that it is of general County interest to extend aid to the cities within the County for the general improvement and maintenance of City streets. B. The County desires to assist Orange County cities with the improvement and maintenance of city streets and to help improve regional transportation needs within the County. Pursuant to California Constitution Article XIX B § 1 and Revenue Taxation Code § 7104, the County receives State Proposition 42 (Prop. 42) allocations from the State's Transportation Investment Fund (TIF) and Traffic Congestion Relief Fund (TCRF) for the purposes of street and highway maintenance, rehabilitation, reconstruction and storm damage repair, which are required to be deposited in the County's Road Fund. C. Orange County cities have streets in need of routine roadway maintenance, minor roadway widening (non -capacity enhancing) and storm drain improvements, but have limited funds to address these needs. D. With authorization from the State, the County has established its Prop. 42 City Aid Program (CAP) whereby the County will provide a portion of the County's Prop. 42 funds to the cities for the purposes of routine roadway maintenance, minor roadway widening (non - capacity enhancing) and storm drain improvements within the cities. Such purposes are to be in accordance with any and all laws, rules, regulations, and guidelines governing Prop. 42 allocations ("Prop. 42 Requirements"). E. The City owns and operates streets in need of routine roadway maintenance, minor roadway widening (non capacity enhancing) and storm drain improvements, and acknowledges that it has limited funds by which to address these needs. Therefore, the City is in support of receiving a portion of the County's Prop. 42 allocation funds through CAP. F. Pursuant to Streets & Highways Code section 1686, the Board of Supervisors has passed Resolution No. 07-109, adopted by a four-fifths vote of its members, finding that the Purposes under this Agreement are of general County interest and that County aid shall be extended therefore. This resolution provides for the basis and conditions upon which allocations Page 1 of 7 • • Agreement No. D07-158 will be made from the County Road Fund for expenditures upon City streets, bridges and culverts in cities within the County. G. The County's City Aid Program (CAP) provides the guidelines for CAP, and is incorporated by reference and made a part of this Agreement. SECTION I IT IS MUTUALLY UNDERSTOOD BY THE PARTIES THAT: County shall: A. Distribute city aid allocation(s) per requirements of this agreement, the CAP, and Exhibit B. CAP allocations to cities shall be based on each city's population as of January 2007 information published by Demographic Research Unit of the California Department of Finance. B. Distribute city aid allocation(s) to cities, on a first come first serve basis, after receiving invoice along with proof of award documentation from the City for its project(s). Each City project will require invoice and proof of award documentation. The allocation will be based on City's invoice amount, which can include design, construction and construction administration costs. County will not begin disbursing allocations until County has received its first Prop. 42 allocation from the State for fiscal year 08/09. After County has received its first Prop. 42 allocation, County will disburse an allocation to the City upon receipt of award documents. County CAP allocations are entirely subject to Prop. 42 allocations to County from the State including any delays or changes in State law, rules, regulations, and guidelines. C. Coordinate with Cities on CAP projects. County's Director of Public Works or designee can authorize the substitution of CAP project(s) listed on Exhibit A to maximize full expenditure of the City's CAP allocation(s). The City must make this request in writing, and the proposed new project(s) shall be eligible for Prop. 42 funds and shall not exceed the Board approved City CAP allocation(s). D. Make every effort to expend any CAP funds returned to the County by the City if City returns funds in a timely manner. However, funds cannot be expended by the County; they shall be returned to the State. E. Review Annual CAP expenditure certification submitted by City (City's submittal will be no later than August 31 of each year). This certification is a list of completed projects and a statement that each project meets Prop. 42 requirements and is in compliance with the purposes of CAP (See CAP for sample of certification). City is responsible for ensuring that all projects meet CAP and Prop. 42 eligibility requirements and have expended such funds in the appropriate fiscal year. F. Conduct a City expenditure assessment each year to verify if City is expending its CAP funds in the timeframe contemplated under this Agreement. Page 2 of 7 SECTION lI City shall: • Agreement No. D07-158 A. Maintain its existing "Maintenance of Effort" (MOE) of local funds for street and highway, maintenance, rehabilitation, reconstruction, and storm damage repair. The City must annually expend from its general fund for street, road, and highway purposes an amount not less than the annual average of its expenditures from its general fund during the 1996-97, 1997-98, and 1998-99 fiscal years, as reported to the controller pursuant to the Streets & Highways Code Section 2151, in order to participate in the County Proposition 42 City Aid Program. B. Provide County with invoice, along with proof of award documentation, for its project(s) in order to receive CAP funds. Each City project will require invoice and proof of award documentation. CAP allocation will be based on the contract award amount. County will not begin disbursing allocations until County has received its first Prop. 42 allocation from the State for fiscal year 08/09. After County has received its first Prop. 42 allocation, County will disburse a CAP allocation to the City upon receipt of invoice and award documents on a first come first serve basis. County's CAP allocations are subject to receiving Prop. 42 allocations from the State. C. After receiving CAP funds from the County, advise the County, no later than two (2) months before the end of the expenditure cycle of each year, of any CAP funds that the City determines will not be expended within the time requirements of CAP. Any such CAP funds the City will be unable to expend by the deadline shall be returned to the County a minimum of thirty (30) calendar days prior to the end of the respective expenditure cycle. The County will attempt to reallocate these funds to other County projects that will expend the funds within the time requirements. However if the County is unable to expend or reallocate these funds, they will be returned to the State. D. Expend CAP funds no later than June 30, 2010. Eligible expenditure for fiscal year 08/09 CAP allocation must occur between July 1, 2008 and June 30, 2010. Any funds not expended by this deadline shall be returned to the County in a timely manner, but no later than 60 days. E. Prepare and submit to County annually, no later than August 31, 2010, CAP expenditure certification for all project(s) completed that corresponding fiscal year. This certification is a list of projects and a statement that each project meets Prop. 42 requirements and is in compliance with the purposes of CAP (See CAP for sample of certification). F. In the event of an audit by the State, provide State all project and finance documentation as required within the timeframe specified by the State. City shall attend all audits involving its CAP projects as required by State. If the State finds that any City expenditure is ineligible or out of compliance with Prop. 42 requirements, that expenditure shall be reimbursed to the County, which will be returned to the State. The City shall reimburse the Page 3 of 7 • • Agreement No. D07-158 County no later than 60 calendar days from State's formal determination, if State determines CAP expenditures are ineligible. SECTION III Miscellaneous Provisions: A. Availability of Funds County will recalculate the $I OM total CAP allocation to the cities if the County's total Prop. 42 allocation falls 10% or more below the anticipated $19M yearly allocation. The adjustment down of the $ l OM City allocations will be in the same ratio as the County's allocation is adjusted down from the anticipated $19M. There will be no adjustment if the County's Prop. 42 allocation exceeds $19M. B. Proi ect Documentation Cities shall promptly provide County and/or State, upon request, all project and finance documentation. C. Indemnification City shall indemnify, defend with counsel approved in writing, save and hold County and each of its elected officials, officers, directors, agents and employees harmless from any and all claims, injuries, liabilities, actions, damages, losses or expenses of every type and description to which they may be subjected arising out of any act or omission of, its employees, representatives, agents and independent contractors in connection with the implementation of the actions described in this agreement. City shall return CAP funds to the County (or State as appropriate) within the timeframe contemplated under this Agreement should 1) City fail to expend all of its CAP allocation within the specified timeframe; 2) the State deem any City expenditure to be ineligible; or 3) the City Aid Program be found to be incompatible with State requirements. D. Assignment This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Parties. No assignment of City's interest in this Agreement shall be made without the written consent of the County. Furthermore, City agrees that CAP allocations shall not be expended on, given to, shared with, or otherwise provided to any other city, local agency or other entity that is not contemplated under this Agreement. E. Entirety & Amendments This Agreement contains the entire agreement between the Parties with respect to the matters provided for herein. No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the Parties; no oral understanding or agreement not incorporated herein shall be binding on either of the Parties; and no exceptions, alternatives, substitutes or revisions are valid or binding on County unless authorized by County in writing. F. Severability If any part of this Agreement is held, determined, or adjudicated to be illegal, void, or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible. G. Calendar Days Any reference to the word "day" or "days" herein means calendar day or calendar days, respectively unless otherwise expressly provided. Page 4 of 7 • • Agreement No. D07-158 H. Notices Notices or other communications which may be required or provided under the terms of this AGREEMENT shall be given as follows: City: Director of Public Works/City Engineer Public Works Department City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Phone 949-443-6301 Facsimile 949-493-1053 3'itJ County: Director of Public Works, RDMD County of Orange PO Box 4048 Santa Ana, CA 92702-4048 Phone 714-834-4377 Facsimile 714-834-2496 All notices shall be in writing and deemed effective when delivered in person or deposited in the United States mail, first class, postage prepaid and addressed as above. Notwithstanding the above, the Parties may also provide notices by facsimile transmittal, and any such notice so given shall be deemed to have been given upon receipt during normal business hours or, in the event of receipt after business, on the following business day. Any notices, correspondence, reports and/or statements authorized or required by this Agreement, addressed in any other fashion shall be deemed not given. I. Termination County may terminate this Agreement for any reason provided that the City has not awarded any project on which its CAP allocation will be expended. After the City has awarded a project on which its CAP allocation will be expended, County may terminate this Agreement if the City is in breach of this Agreement. Any such termination shall be accomplished by delivery to City a Notice of Termination, which notice shall become effective not less than thirty (30) days after receipt, specifying the reason for the termination, the extent to which CAP funding is terminated, and the date upon which the termination is effective. No termination shall become effective if, within thirty (30) days after receipt of a Notice of Termination, City either cures the default involved or, if not reasonably susceptible of cure within said thirty (30) day period, City proceeds thereafter to complete the cure in a manner and time line acceptable to County. During this period before the effective termination date, City and County shall meet to attempt to resolve any dispute. In the event of termination, County may proceed with the project work in a manner deemed proper by County. J. Breach The failure of the City to comply with any of the terms and conditions of this Agreement shall be a material breach of this Agreement. In such event the County may: Page 5 of 7 • • Agreement No. D07-158 1. Afford the City a written Notice of Breach and Notice of Termination providing for thirty (30) days within which to cure the breach, in accordance with Section I11.1 (Termination); 2. Discontinue all CAP allocations during the period in which the City is in breach; and 3. Offset CAP allocations against any invoices billed by the City. Page 6 of 7 • • Agreement No. D07-158 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 San Juan Capistrano, a municipal corporation Date: I // S- 10<6 B} T APPROVED AS TO FORM: 1 ��/..IF (RG County of Orange, a political subdivision of the State of California i �y Date: l� ,2 a� ' D 0 By Chairman, Boar of Superviso SIGNED AND CERTIFIED THAT A COPY OF THIS DOCUMENT HAS BEEN DELIVERED APPROVED AS TO FORM: TO THE CHAIRMAN OF THE BOARD 7 By: Darlene J. Bloom Clerk of the Board of Supervisors of Orange County, California COUNTY COUNSEL ORANGE COUNTY, CALIFORNIA R Page 7 of 7 2 G I1 R IM 1 q 00 o 00 0 � O O b 0 0 W z z y � U O O O O � O O d N M N 6A W O 0 w q o 0 G ❑ v U H r C 65 Ci A y o U O U q u v Cd N y a ob o a �T 45 o ro E w ° o w 0 O N v p N � � O N ti O G a� N M 7 Exhibit B Agreement No.: D07-158 Note: $10M City Aid Program is based on the County receiving its expected Prop. 42 allocation of approx. $19M for FY08/09. loft Orange County Funded Proposition 42 City Aid FY08/09 Allocation Schedule to Cities Program ID Orange County Cities Population (Department of Finance Jan. 1, 2007) % Population in O.C. Prop. 42 CAP Allocations Based on Population 1 Santa Ana 353,428 11.86% $1,186,006 2 Anaheim 345,556 11.60% $1,159,590 3 Huntington Beach 202,250 6.79% $678,695 4 Irvine 202,079 6.78% $678,121 5 Garden Grove 172,781 5.80% $579,805 6 Orange 138,640 4.65% $465,237 7 Fullerton 137,367 4.61% $460,965 8 Costa Mesa 113,805 3.82% $381,898 9 Mission Viejo 98,483 3.30% $330,482 10 Westminster 92,870 3.12% $311,646 11 Newport Beach 84,218 2.83% $282,612 12 Buena Park 82,452 2.77% $276,686 13 Lake Forest 78,243 2.63% $262,562 14 Tustin 70,350 2.36% $236,075 15 Yorba Linda 67,904 2.28% $227,867 16 San Clemente 67,373 2.26% $226,085 17 Laguna Niguel 66,608 2.24% $223,518 18 La Habra 62,483 2.10% $209,676 19 Fountain Valley 57,741 1.94% $193,763 20 Placentia 51,597 1.73% $173,145 21 Rancho Santa Margarita 49,718 1.67% $166,840 22 Cypress 49,284 1.65% $165,383 23 Aliso Viejo 45,037 1.51% $151,132 24 Brea 39,870 1.34% $133,793 25 Stanton 38,981 1.31% $130,809 26 Dana Point 36,946 1.24% $123,980 27 San Juan Capistrano 36,452 1.22% $122,323 28 Laguna Hills - 33,391 1.12% $112,051 29 Seal Beach 25,962 0.87% $87,121 30 Laguna Beach 25,131 0.84% $84,333 31 Laguna Woods 18,426 0.62% $61,833 32 La Palma 16,162 0.54% $54,235 33 Los Alamitos 12,146 0.41% $40,759 34 Villa Park 6,251 0.21% $20,977 Total 2,979,985 100% $10,000,000 Note: $10M City Aid Program is based on the County receiving its expected Prop. 42 allocation of approx. $19M for FY08/09. loft ' O R A N O E C• N T Y • $~, � 3�N. 5,,rW ta Ana, CA L C PubhcWorks Santa O2Box 7024048 ank Ana, CA 927024048 Our Community. Our commitment. Tekphons: (714) 834-2300 Fax: (714) 8345188 May 91 2008 Mr. Jack Galaviz City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Subject: County Proposition 42 - City Aid Program Agreement FY 08/09 Dear Mr. Galaviz: I am pleased to inform you the Orange County Board of Supervisors executed the Proposition 42 City Aid Program (CAP) agreement with your city on April 22, 2008. Of note, all thirty four (34) Orange County cities elected to participate in this roadway rehabilitation and pavement management program. The attached agreement and CAP program guidelines (previously provided) identify the details and timelines for your city's participation within the Fiscal Year 08/09 CAP program. As a reminder, Proposition 42 CAP funds will be available to cities after the County receives its quarterly allocations from the State, beginning July 1, 2008. The County will distribute CAP funds to cities, on a first-come first -serve basis, after receiving invoice(s) along with proof of award documentation from the city for its Proposition 42 approved project(s). It is also important to note eligible expenditures for fiscal year 08/09 CAP funds must occur between July 1, 2008 and June 30, 2010; CAP funds not expended within this period shall be returned to the County. The County will conduct an expenditure assessment in July 2009 to determine the status of your city's efforts to expend these CAP funds. Please submit your city's invoice along with proof of project award documentation to: County of Orange OC Public Work/OC Roads Mr. Harry Persaud, Manager, P.O. Box 4048 Santa Ana, CA 92702-4048 OC Public Works/Road Programs Questions may be directed to Mr. Steven Soo, Project Manager, Proposition 42 Program, at 714-834-4367. Very truly yours, igoni, Manager, OC oads Attachment: County Proposition 42 FY 08/09 CAP executed agreement County Proposition 42 - City Aid Program Agreement FY 08/09 Page 2 of 2 cc: Supervisor Nguyen, 1st District (letter to cities within District 1) Supervisor Moorlach, 2nd District (letter to cities within District 2) Supervisor Campbell, 3'd District (letter to cities within District 3) Supervisor Norby, 4t" District (letter to cities within District 4) Supervisor Bates, 5th District (letter to cities within District 5) Tom Mauk, CEO Alisa Drakodaidis, Deputy CEO Rob Richardson, Deputy CEO Ignacio Ochoa, Director OC Road & Flood/Chief Engineer Nadeem Majaj, Assistant Chief Engineer, OC Public Works Ryan Baron, County Counsel Mary Fitzgerald, Auditor Controller Kim Engelby, Accounting Liz Jewel, Administration Ashok Tahilramani, Administration Harry Persaud, Road Program Tresa Oliveri, OCTA C:\Documents and Settingstrownw\Desktop\1 Sample Letter 4-29-08.doc 0 32400 PASEO ADELANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 4931053 FAx www.sanjuancapistrano.org TRANSMITTAL TO: Director of Public Works, RDMD County of Orange P.O. Box 4048 Santa Ana. CA 92702 DATE: October 18, 2007 j Nail 11111 • fslumell 1961 1776 FROM: Maria Morris, Deputy City Clerk (949) 443-6309 RE: Proposition 42 — City Aid Program Agreement MEMBERS OF THE CITY COUNCIL SAM ALLEVATO THOMAS W. HRIBAR MARK NIELSEN JOE SOTO DR, LONDRES USO Enclosed are three (3) original agreements. Please forward an original agreement to our office when executed for our records. If you have questions concerning the agreement, please contact Nasser Abbaszadeh, Engineering & Building Director (949) 443-6398. Cc: Nasser Abbaszadeh, Engineering & Building Director Enclosure San Juan Capistrano: Preserving the Past to Enhance the Future Q* Printed on 100°n recycled paper 0 AGENDA REPORT TO: Dave Adams, City Manager 9"t - • 1/15/2008 FROM: Nasser Abbaszadeh, Engineering & Building Director D11 SUBJECT: Consideration of Approving an Agreement to Receive City Aid Program for Fiscal Year 2008-09 (County of Orange) RECOMMENDATION: By motion, approve the attached agreement to participate in the County of Orange Proposition 42 City Aid Program funding for Fiscal Year 2008-09. 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 (CAP) for Fiscal Year 2008-09. The CAP has been formulated to provide Orange County cities with additional funds for city roadway maintenance projects. The grant funding will provide the City with $122,323.00 in Fiscal Year 2008-09 per population based percentage of the County's CAP program. It should be noted that the County's CAP grant funds are in addition to the Prop. 42 programmed funds that the City is to receive in FY 08/09, directly from the State. The attached Prop. 42 CAP agreement requires the City to commit to the following: Maintain its existing "Maintenance of Effort" and use of local funds for street and highway, maintenance, rehabilitation, reconstruction, and storm damage repair; Expend (pay to contractors) its CAP allocation(s) by June 30, 2010 on Prop. 42 eligible projects or return CAP allocations to County; and Provide County with FY 08/09 CAP expenditure certification by August 31, 2010. The County will distribute CAP allocations to the City upon the County receiving Prop. 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 serve basis, with the submittal of proof of project award documentation and City invoice(s). Agenda Report • • January 15, 2008 Page 2 It should also be noted that successful implementation of the CAP is dependent on the County receiving its programmed Prop. 42 funding from the State for FY 2008-09. Any delay or change to the State's Prop. 42 grant program may directly impact CAP implementation. The County's tentative schedule to approve the CAP agreements is April 2008. COMMISSIONS/BOARD REVIEW, RECOMMENDATIONS: Not applicable. FINANCIAL CONSIDERATIONS: There is no city general fund fiscal impact associated with this action. However, CAP allocations shall be returned to the County if allocations are not expended (paid to contractors) by June 30, 2010. NOTIFICATION: Not applicable. RECOMMENDATION: By motion, approve the attached agreement to participate in the County of Orange Proposition 42 City Aid Program funding for Fiscal Year 2008-09. Respectfully submitted: Nasser Abbaszadeh, PE Engineering & Building Director Attachments: 1. Agreement • • Agreement No. D07-158 PROPOSITION 42 CITY AID PROGRAM AGREEMENT This CITY AID PROGRAM AGREEMENT, Agreement No. D07-158 ("Agreement") is made and entered into this day of 200_, by and between the County of Orange, California, a political subdivision of the State of California ("County"), and the City of San Juan Capistrano, a municipal corporation in the State of California ("City"). The County and City shall sometimes be referred to separately as a "Party" and collectively as the "Parties." RECITALS A. The California State Legislature has determined that the improvement and maintenance of all city streets is of general County interest. Likewise, the County believes that it is of general County interest to extend aid to the cities within the County for the general improvement and maintenance of City streets. B. The County desires to assist Orange County cities with the improvement and maintenance of city streets and to help improve regional transportation needs within the County. Pursuant to California Constitution Article XIX B § 1 and Revenue Taxation Code § 7104, the County receives State Proposition 42 (Prop. 42) allocations from the State's Transportation Investment Fund (TIF) and Traffic Congestion Relief Fund (TCRF) for the purposes of street and highway maintenance, rehabilitation, reconstruction and storm damage repair, which are required to be deposited in the County's Road Fund. C. Orange County cities have streets in need of routine roadway maintenance, minor roadway widening (non -capacity enhancing) and storm drain improvements, but have limited funds to address these needs. D. Withauthorization from the State, the County has established its Prop. 42 City Aid Program (CAP) whereby the County will provide a portion of the County's Prop. 42 funds to the cities for the purposes of routine roadway maintenance, minor roadway widening (non - capacity enhancing) and storm drain improvements within the cities. Such purposes are to be in accordance with any and all laws, rules, regulations, and guidelines governing Prop. 42 allocations ("Prop. 42 Requirements"). E. The City owns and operates streets in need of routine roadway maintenance, minor roadway widening (non capacity enhancing) and storm drain improvements, and acknowledges that it has limited funds by which to address these needs. Therefore, the City is in support of receiving a portion of the County's Prop. 42 allocation funds through CAP. F. Pursuant to Streets & Highways Code section 1686, the Board of Supervisors has passed Resolution No. 07-109, adopted by a four-fifths vote of its members, finding that the Purposes under this Agreement are of general County interest and that County aid shall be extended therefore. This resolution provides for the basis and conditions upon which allocations Page 1 of 7 ATTACHMENT • • Agreement No. D07-158 will be made from the County Road Fund for expenditures upon City streets, bridges and culverts in cities within the County. G. The County's City Aid Program (CAP) provides the guidelines for CAP, and is incorporated by reference and made a part of this Agreement. SECTION I IT IS MUTUALLY UNDERSTOOD BY THE PARTIES THAT: County shall A. Distribute city aid allocation(s) per requirements of this agreement, the CAP, and Exhibit B. CAP allocations to cities shall be based on each city's population as of January 2007 information published by Demographic Research Unit of the California Department of Finance. B. Distribute city aid allocation(s) to cities, on a first come first serve basis, after receiving invoice along with proof of award documentation from the City for its project(s). Each City project will require invoice and proof of award documentation. The allocation will be based on City's invoice amount, which can include design, construction and construction administration costs. County will not begin disbursing allocations until County has received its first Prop. 42 allocation from the State for fiscal year 08/09. After County has received its first Prop. 42 allocation, County will disburse an allocation to the City upon receipt of award documents. County CAP allocations are entirely subject to Prop. 42 allocations to County from the State including any delays or changes in State law, rules, regulations, and guidelines. C. Coordinate with Cities on CAP projects. County's Director of Public Works or designee can authorize the substitution of CAP project(s) listed on Exhibit A to maximize full expenditure of the City's CAP allocation(s). The City must make this request in writing, and the proposed new project(s) shall be eligible for Prop. 42 funds and shall not exceed the Board approved City CAP allocation(s). D. Make every effort to expend any CAP funds returned to the County by the City if City returns funds in a timely manner. However, funds cannot be expended by the County; they shall be returned to the State. E. Review Annual CAP expenditure certification submitted by City (City's submittal will be no later than August 31 of each year). This certification is a list of completed projects and a statement that each project meets Prop. 42 requirements and is in compliance with the purposes of CAP (See CAP for sample of certification). City is responsible for ensuring that all projects meet CAP and Prop. 42 eligibility requirements and have expended such funds in the appropriate fiscal year. F. Conduct a City expenditure assessment each year to verify if City is expending its CAP funds in the timeframe contemplated under this Agreement. Page 2 of 7 1J City shall: SECTION II • Agreement No. D07-158 A. Maintain its existing "Maintenance of Effort" (MOE) of local funds for street and highway, maintenance, rehabilitation, reconstruction, and storm damage repair. The City must annually expend from its general fund for street, road, and highway purposes an amount not less than the annual average of its expenditures from its general fund during the 1996-97, 1997-98, and 1998-99 fiscal years, as reported to the controller pursuant to the Streets & Highways Code Section 2151, in order to participate in the County Proposition 42 City Aid Program. B. Provide County with invoice, along with proof of award documentation, for its project(s) in order to receive CAP funds. Each City project will require invoice and proof of award documentation. CAP allocation will be based on the contract award amount. County will not begin disbursing allocations until County has received its first Prop. 42 allocation from the State for fiscal year 08/09. After County has received its first Prop. 42 allocation, County will disburse a CAP allocation to the City upon receipt of invoice and award documents on a first come first serve basis. County's CAP allocations are subject to receiving Prop. 42 allocations from the State. C. After receiving CAP funds from the County, advise the County, no later than two (2) months before the end of the expenditure cycle of each year, of any CAP funds that the City determines will not be expended within the time requirements of CAP. Any such CAP funds the City will be unable to expend by the deadline shall be returned to the County a minimum of thirty (30) calendar days prior to the end of the respective expenditure cycle. The County will attempt to reallocate these funds to other County projects that will expend the funds within the time requirements. However if the County is unable to expend or reallocate these funds, they will be returned to the State. D. Expend CAP funds no later than June 30, 2010. Eligible expenditure for fiscal year 08/09 CAP allocation must occur between July 1, 2008 and June 30, 2010. Any funds not expended by this deadline shall be returned to the County in a timely manner, but no later than 60 days. E. Prepare and submit to County annually, no later than August 31, 2010, CAP expenditure certification for all project(s) completed that corresponding fiscal year. This certification is a list of projects and a statement that each project meets Prop. 42 requirements and is in compliance with the purposes of CAP (See CAP for sample of certification). F. In the event of an audit by the State, provide State all project and finance documentation as required within the timeframe specified by the State. City shall attend all audits involving its CAP projects as required by State. If the State finds that any City expenditure is ineligible or out of compliance with Prop. 42 requirements, that expenditure shall be reimbursed to the County, which will be returned to the State. The City shall reimburse the Page 3 of 7 • • Agreement No. D07-158 County no later than 60 calendar days from State's formal determination, if State determines CAP expenditures are ineligible. SECTION III Miscellaneous Provisions: A. Availability of Funds County will recalculate the $1OM total CAP allocation to the cities if the County's total Prop. 42 allocation falls 10% or more below the anticipated $19M yearly allocation. The adjustment down of the $ l OM City allocations will be in the same ratio as the County's allocation is adjusted down from the anticipated $19M. There will be no adjustment if the County's Prop. 42 allocation exceeds $19M. B. Proiect Documentation Cities shall promptly provide County and/or State, upon request, all project and finance documentation. C. Indemnification City shall indemnify, defend with counsel approved in writing, save and hold County and each of its elected officials, officers, directors, agents and employees harmless from any and all claims, injuries, liabilities, actions, damages, losses or expenses of every type and description to which they may be subjected arising out of any act or omission of, its employees, representatives, agents and independent contractors in connection with the implementation of the actions described in this agreement. City shall return CAP funds to the County (or State as appropriate) within the timeframe contemplated under this Agreement should 1) City fail to expend all of its CAP allocation within the specified timeframe; 2) the State deem any City expenditure to be ineligible; or 3) the City Aid Program be found to be incompatible with State requirements. D. Assignment This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Parties. No assignment of City's interest in this Agreement shall be made without the written consent of the County. Furthermore, City agrees that CAP allocations shall not be expended on, given to, shared with, or otherwise provided to any other city, local agency or other entity that is not contemplated under this Agreement. E. Entirety & Amendments This Agreement contains the entire agreement between the Parties with respect to the matters provided for herein. No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the Parties; no oral understanding or agreement not incorporated herein shall be binding on either of the Parties; and no exceptions, alternatives, substitutes or revisions are valid or binding on County unless authorized by County in writing. F. Severability If any part of this Agreement is held, determined, or adjudicated to be illegal, void, or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible. G. Calendar Days Any reference to the word "day" or "days" herein means calendar day or calendar days, respectively unless otherwise expressly provided. Page 4of7 • • Agreement No. D07-158 H. Notices Notices or other communications which may be required or provided under the terms of this AGREEMENT shall be given as follows: City: Director of Public Works/City Engineer Public Works Department City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Phone 949-443-6301 Facsimile 949-493-1053 County: Director of Public Works, RDMD County of Orange PO Box 4048 Santa Ana, CA 92702-4048 Phone 714-834-4377 Facsimile 714-834-2496 All notices shall be in writing and deemed effective when delivered in person or deposited in the United States mail, first class, postage prepaid and addressed as above. Notwithstanding the above, the Parties may also provide notices by facsimile transmittal, and any such notice so given shall be deemed to have been given upon receipt during normal business hours or, in the event of receipt after business, on the following business day. Any notices, correspondence, reports and/or statements authorized or required by this Agreement, addressed in any other fashion shall be deemed not given. I. Termination County may terminate this Agreement for any reason provided that the City has not awarded any project on which its CAP allocation will be expended. After the City has awarded a project on which its CAP allocation will be expended, County may terminate this Agreement if the City is in breach of this Agreement. Any such termination shall be accomplished by delivery to City a Notice of Termination, which notice shall become effective not less than thirty (30) days after receipt, specifying the reason for the termination, the extent to which CAP funding is terminated, and the date upon which the termination is effective. No termination shall become effective if, within thirty (30) days after receipt of a Notice of Termination, City either cures the default involved or, if not reasonably susceptible of cure within said thirty (30) day period, City proceeds thereafter to complete the cure in a manner and time line acceptable to County. During this period before the effective termination date, City and County shall meet to attempt to resolve any dispute. In the event of termination, County may proceed with the project work in a manner deemed proper by County. J. Breach The failure of the City to comply with any of the terms and conditions of this Agreement shall be a material breach of this Agreement. In such event the County may: Page 5 of 7 • • Agreement No. D07-158 Afford the City a written Notice of Breach and Notice of Termination providing for thirty (30) days within which to cure the breach, in accordance with Section III.I (Termination); 2. Discontinue all CAP allocations during the period in which the City is in breach; and 3. Offset CAP allocations against any invoices billed by the City. Page 6 of 7 0 • Agreement No. D07-158 IN WITNESS WHEREOF, City has caused this Agreement to be executed by its Mayor and attested by its Clerk, and County has caused this Agreement to be executed by the Chairman of the Board of Supervisors and attested by its Clerk on the dates written opposite their signatures, all thereunto duly authorized by the City Council and the Board of Supervisors, respectively. Date: ATTEST: City Clerk Date: SIGNED AND CERTIFIED THAT A COPY OF THIS DOCUMENT HAS BEEN DELIVERED TO THE CHAIRMAN OF THE BOARD Darlene J. Bloom Clerk of the Board of Supervisors of Orange County, California City of San Juan Capistrano, a municipal corporation Lo Mayor APPROVED AS TO FORM: I� City Attorney County of Orange, a political subdivision of the State of California Lin Chairman, Board of Supervisors APPROVED AS TO FORM: COUNTY COUNSEL ORANGE COUNTY, CALIFORNIA Page 7 of 7 � r > �} w k \ \ sl O I ExhibitA ; = m ) ) \ \ { @ ! > ) z z \ � \ \ ) . \ ' ) � ]© /2 » N\% )/\ 0 \§t ) / \J/ \ \ � } * ƒ ) a\ \ k\ > j\ )/ §§ §* %2 4A ) \ § ] ) 2 @ \ ) 2 — m r ExhibitA Exhibit B Agreement No.: D07-158 Note: $10M City Aid Program is based on the County receiving its expected Prop. 42 allocation of approx. $19M for FY08/09. Exhibit B Orange County Funded Proposition 42 City Aid Program FY08109 Allocation Schedule to Cities ID Orange County Cities Population (Department of Finance Jan. 1, 2007) % Population in O.C. Prop. 42 CAP Allocations Based on Population 1 Santa Ana 353,428 11.86% $1,186,006 2 Anaheim 345,556 11.60% $1,159,590 3 Huntington Beach 202,250 6.79% $678,695 4 Irvine 202,079 6.78% $678,121 5 Garden Grove 172,781 5.80% $579,805 6 Orange 138,640 4.65% $465,237 7 Fullerton 137,367 4.61% $460,965 8 Costa Mesa 113,805 3.82% $381,898 9 Mission Viejo 98,483 3.30% $330,482 10 Westminster 92,870 3.12% $311,646 11 Newport Beach 84,218 2.83% $282,612 12 Buena Park 82,452 2.77% $276,686 13 Lake Forest 78,243 2.63% $262,562 14 Tustin 70,350 2.36% $236,075 15 Yorba Linda 67,904 2.28% $227,867 16 San Clemente 67,373 2.26% $226,085 17 Laguna Niguel 66,608 2.24% $223,518 18 La Habra 62,483 2.10% $209,676 19 Fountain Valley 57,741 1.94% $193,763 20 Placentia 51,597 1.73% $173,145 21 Rancho Santa Margarita 49,718 1.67% $166,840 22 Cypress 49,284 1.65% $165,383 23 Aliso Viejo 45,037 1.51% $151,132 24 Brea 39,870 1.34% $133,793 25 Stanton 38,981 1.31% $130,809 26 Dana Point 36,946 1.24% $123,980 27 San Juan Capistrano 36,452 1.22% $122,323 28 Laguna Hills 33,391 1.12% $112,051 29 Seal Beach 25,962 0.87% $87,121 30 Laguna Beach 25,131 0.84% $84,333 31 Laguna Woods 18,426 0.62% $61,833 32 La Palma 16,162 0.54% $54,235 33 Los Alamitos 12,146 0.41% $40,759 34 Villa Park 6,251 0.21% $20,977 Total 2,979,985 100% $10,000,000 Note: $10M City Aid Program is based on the County receiving its expected Prop. 42 allocation of approx. $19M for FY08/09. Exhibit B