Loading...
08-0617_ORANGE, COUNTY OF_Agreement Agreement No. D08-041 PROPOSITION 1B CITY AGREEMENT This CITY AGREEMENT, Agreement No. D08-041 ("Agreement") is made and entered into this day of JUN 5 1-7 , 2008, 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. Pursuant to the Highway Safety, Traffic Reduction, Air Quality, and Port Security Bond Act of 2006, codified at Government Code sections 8879.20 et. seq., the County anticipates receipt of approximately $61.6 million in Local Streets and Roads State bond funds over the next ten years to be used for the purposes of reducing local traffic congestion and further deterioration, improving traffic flows, or increasing traffic safety ("Proposition 113"). The County's first allocation will be for Fiscal Year 2007-08 in the amount of$24,683,910.29. Prior to receiving this allocation, the County is required to adopt into the County budget projects expected to be funded with Proposition 1 B funds, and submit a list of these projects to the State Department of Finance for review. The County shall have three fiscal years to expend its Proposition 1B allocation following the fiscal year in which the allocation was made by the Controller, and any funds not expended within that period shall be returned to the Controller for reallocation. B. The California State Legislature has determined that the improvement and maintenance of all city streets is of general County interest. C. 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 and therefore desires to extend a portion of the County's Proposition I B allocations to participating cities. D. The City owns and operates streets in need of traffic congestion and traffic safety improvements, such as routine roadway maintenance 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 Proposition 1 B allocation. E. Pursuant to Streets & Highways Code section 1686, the Board of Supervisors has passed Resolution No. 08-016 on March 4, 2008, finding that the purposes of 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 will be made from the County Road Fund (Proposition 1B) for the improvement and maintenance of City streets. F. On March 4, 2008, the Board of Supervisors approved a list of County and City Proposition 1B projects to be submitted to the Department of Finance for review and disbursement of Proposition 1B funds. Page 1 of 6 Agreement No..D08-041 G. This Agreement sets forth the terms and conditions by which the County will extend a portion of its Proposition 113 allocation to the City, and the City will follow all State Proposition 1B laws, State regulations, and any and all guidelines or other documents issued by the Department of Finance, the Controller, or any other State agency that is intended to interpret Proposition 113 ("Proposition 113 Requirements"). SECTION I IT IS MUTUALLY UNDERSTOOD BY THE PARTIES THAT: A. County shall submit a Proposition 113 project list to the Department of Finance for review and disbursement of.the County's first Proposition 113 allocation. The City project(s) approved by the Board of Supervisors for Proposition 1B funding is attached hereto as Exhibit A. This Agreement allows the disbursement of a portion of the County's Proposition 113 funds to the City without the requirement of City submitting an invoice requesting Proposition 1 B funds. B. Upon receipt of this allocation from the State, County will timely issue a portion of its allocation to City, in the amount shown on Exhibit A, or as limited by the State should the State pre-determine that any City project or portion of the project is ineligible. C. City shall abide by all Proposition 113 Requirements, as these requirements may change from time to time. This includes, but is not limited to, meeting the project delivery and expenditure deadlines, and using the County's Proposition 113 allocation to reduce City's traffic congestion and further deterioration, improving traffic flows, or increasing traffic safety. D. County will conduct a City expenditure assessment at the end of the twelve (12) and twenty-four (24) month periods in order to verify if City is expending its Proposition 1B allocation as provided for by Proposition 113 Requirements. City shall report the status of its Proposition 113 project(s) to County on or before June 10, 2009 and June 10, 2010 for FY 2007-08 allocation. The status report shall include the date of project award, amount of award, percent completion of project, estimated completion date, the amount of funds that have been expended, and the remaining County Proposition 1B allocation to be expended. In the event County wishes to conduct a City expenditure assessment at any time prior to the end of a fiscal year, City shall provide a status report to County within two (2)weeks of a written request in accordance with Section I.D. E. County will prepare any necessary amendments to the Proposition 113 project list in June 2009 and June 2010 based on the status reports of all Proposition 1B participating cities. If one or more city status reports show an inability to expend the entire Proposition 113 allocation within the required statutory timeframe, or if the County or State deems any expenditure to be ineligible, County in its sole discretion will determine whether to reallocate the unexpended city funds to the City by preparing a revised Proposition 113 project list for the DOF and an amendment to this Agreement. In no event will County submit a revised project list to the DOF more than once per fiscal year. F. City shall expend its Proposition 113 allocation no later than June 30, 2011 per Proposition 113 Requirements. Fiscal year 07-08 Proposition 113 funds may only be expended after Page 2 of 6 • • Agreement No.,D08-041 County receives its 1B allocation from the State. Any portion of the city's allocation not expended by this deadline shall be returned to the County in a timely manner, but no later than August 31, 2011. G. In the event of an audit, City shall provide County, and the State if necessary, all project and finance documentation as required within the timeframe specified by the State. City shall attend all audits involving its Proposition 1B projects as required by State. If the State finds that any City expenditure is ineligible or is out of compliance with Proposition 1B Requirements, that expenditure shall be reimbursed to the County no later than 60 days from the State's determination. SECTION II MISCELLANEOUS PROVISIONS: A. Availability of Funds County's distribution of funds to the City depends entirely on the County receiving its Proposition 1B allocation from the State. County shall not disburse the City's allocation until such time that the County receives its Proposition 1B allocation from the State. B. Indemnification City shall indemnify, defend with counsel approved in writing by County, save and hold County and each of its elected officials, officers, directors, agents and employees harmless from any and all claims, injuries, liabilities, actions, damages, losses or expenses of every type and description to which they may be subjected arising out of any act or omission of, its employees, representatives, agents and independent contractors in connection with the implementation of the actions described in this Agreement. City shall return its Proposition 1B allocation to the County (or State as appropriate, with written consent from the County) within the timeframe contemplated under this Agreement should 1) City fail to expend all of its Proposition 1B allocation within the specified timeframe; 2) the State or County deems any City expenditure to be ineligible; or 3) the County's Proposition 1B aid to cities be found to be incompatible with Proposition 1B Requirements. C. Assignment This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Parties. No assignment of City's interest in this Agreement shall be made without the written consent of the County. Furthermore, City agrees that Proposition 1B allocations shall not be expended on, given to, shared with, or otherwise provided to any other city, local agency or other entity not contemplated under this Agreement. D. Entirety & Amendments This Agreement contains the entire agreement between the Parties with respect to the matters provided for herein. No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the Parties; no oral understanding or agreement not incorporated herein shall be binding on either of the Parties; and no exceptions, alternatives, substitutes or revisions are valid or binding on County unless authorized by County in writing. Page 3 of 6 Agreement No.,D08-041 E. Severability If any part of this Agreement is held, determined, or adjudicated to be illegal, void, or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible. F. Calendar Days Any reference to the word "day" or "days" herein means calendar day or calendar days, respectively, unless otherwise expressly provided. G. Notices Notices or other communications which may be required or provided under the terms of this Agreement shall be given as follows: City: Director of Public Works/City Engineer Public Works Department City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Phone 949-443-6301 Facsimile 949-493-1053 and County: Director of Public Works County of Orange PO Box 4048 Santa Ana, CA 92702-4048 Phone 714-834-2308 Facsimile 714-834-2496 All notices shall be in writing and deemed effective when delivered in person or deposited in the United States mail, first class, postage prepaid and addressed as above. Notwithstanding the above, the Parties may also provide notices by facsimile transmittal, and any such notice so given shall be deemed to have been given upon receipt during normal business hours or, in the event of receipt after business, on the following business day. Any notices, correspondence, reports and/or statements authorized or required by this Agreement, addressed in any other fashion shall be deemed not given. H. Termination County may terminate this Agreement for any reason provided that the City has not awarded any project on which its allocation will be expended. After the City has awarded a project on which its 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 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 to cure within said thirty (30) day period, City proceeds thereafter to complete the cure in a manner and time line Page 4 of 6 Agreement No, D08-041 acceptable to County. During this period before the effective termination date, City and County shall meet to attempt to resolve any dispute. I. Breach The failure of the City to comply with any of the terms and conditions of this Agreement or the Proposition 1 B Requirements shall be a material breach of this Agreement. J. Binding Obligation The Parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitutes the legally binding obligation of their respective organization or entity enforceable in accordance with its terms. K. Governing Law and Venue This Agreement has been negotiated and executed in the State of California and shall be governed by and construed under the laws of the State of California. In the event of any legal action to enforce or interpret this Agreement, the sole and exclusive venue shall be a court of competent jurisdiction located in Orange County, California, and the Parties hereto agree to and do hereby submit to the jurisdiction of such court, notwithstanding Code of Civil Procedure, Section 394. L. Attorney's Fees In any action or proceeding to enforce or interpret any provision of this Agreement, or where any provision hereof is validly asserted as a defense, each party shall bear its own attorney's fees, costs and expenses. M. Waiver of Jury Trial Each Party acknowledges that it is aware of and has had the opportunity to seek advice of counsel of its choice with respect to its rights to trial by jury, and each Party, for itself and its successors, creditors, and assigns, does hereby expressly and knowingly waive and release all such rights to trial by jury in any action, proceeding or counterclaim brought by any Party hereto against the other (and/or against its officers, directors, employees, agents, or subsidiary or affiliated entities) on or with regard to any matters whatsoever arising out of or in any way connected with this Agreement and/or any other claim of injury or damage. Page 5 of 6 • • Agreement No.,D08-041 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: By: afb Mayor ATTES APPROVED AS TO FORM: L{[I By: 61� A Ali Ado)A�b y CIA City Attorney County of Orange, a political subdivision of the State of California By: Date: 17 —6P) Chairman, Boar of Superviso s SIGNED AND CERTIFIED THAT A COPY OF APPROVED AS TO FORM: THIS DOCUMENT HAS BEEN DELIVERED COUNTY COUNSEL TO THE CHAIRMAN OF THE BOARD ORANGE COUNTY, CALIFORNIA Q By: By: ( De uty Darlene J. BloomU Clerk of the Board of Supervisors of Orange County, California Page 6 of 6 County of Orange funded Proposition 1B Projects in City of San Juan Capistrano ExhibitA Fiscal Year 2007-08 Agreement D08-041 , Board District Project&Limits Phase Lead Agency Prop.1B allocation 5 Camino Capistrano and Del Obispo Intersection Improvements and Junipero Serra Rd.and Construction City of San Juan Capistrano $500,000 Rancho Viejo Rd.,east of 1-5 off/on ramps • 01O R A N G E CO N T Y • Bryin SPieple,a� 300 N.Flower Street C PublicWorks Po 4048 simi Ana,CA 92702-4048 Our Community. Our Commitment. Tebpnone: (714)834-2300 Fix: (714)8345188 July 28, 2008 ONVN1SIdVD Nvnr NVS Mr. Nasser Abbaszadeh Jo All,-) Director of Public Works City of San Juan Capistrano soot 6 ti In(' 32400 Paseo Adelanto San Juan Capistrano, CA 92675 1NMAVd30 SN80M 0I18nd Subject: County FY 2007-08 Proposition 1B Program, City Cooperative Agreement D08-041 Dear Mr. Ab �zadeh: I am pleased to inform you the Orange County Board of Supervisors executed the attached Proposition 1B (Prop. 1B) City Program Agreement with your city on June 17, 2008. The attached agreement identifies the requirements and timelines concerning expenditure certification for your city's participation in the County's Fiscal Year 2007-08 Prop. 1 B Program. The project(s) funded by this allocation of Prop. 1B funds are listed on the attachment to the agreement. Of note, expenditures for eligible project work for Fiscal Year 2007-08 funds must occur between May 16, 2008 and June 30, 2011; funds not expended within this period shall be returned to the County no later than August 31, 2011. Pursuant to State guidelines, the County will conduct expenditure assessments in July 2009 and July 2010 to update the status of your city's efforts to expend these funds. Your city will need to complete and submit to the County the attached Prop. 1 B Project Expenditure Certification Form by June 10, 2009 and June 10, 2010, per the approved agreement, to document efforts towards program participation requirements. If project direction changes and your city needs to reassign the Prop. 1B allocation to another eligible project(s), an amendment to the agreement would be required. However, funds must still be expended within the timeframe and program requirements stipulated by the State. Staff may direct questions to Mr. Steven Soo, Proposition 16 Program Manager, at (714) 834- 4367. V4trlrs, gnacio Ochoa Director, OC Road & Flood/Chief Engineer Attachment: Executed County Proposition 1 B City Agreement FY2007-08 Project Expenditure Certification Form cc: Supervisor Nguyen, 18' District(letter to cities within District 1) Mary Fitzgerald, Auditor Controller Supervisor Campbell, 3`" District(letter to cities within District 3) Kim Engelby, Accounting Supervisor Norby, 4t" District(letter to cities within District 4) Ashok Tahilramani, Administration Supervisor Bates, 5t" District(letter to cities within District 5) Ted Rigoni, OC Roads Alisa Drakodaidis, Deputy CEO Tresa Oliveri, OCTA (City Letterhead) PROPOSITION 113 FY 2007-08 PROJECT EXPENDITURE CERTIFICATION (AS OF JUNE 10, 2009) To: County of Orange OC Public Works Director PO Box 4048 Santa Ana, CA 92702-4048 The City of San Juan Capistrano certifies that the following projects have been funded, in part or in whole, in accordance with the State of California Proposition 113 legislative requirements and Orange County City Agreement guidelines. Project Allocation Amount 1. Camino Capistrano and Del Obispo Intersection Improvements and Junipero Sena $500,000 Rd. and Rancho Viejo Rd., east of I-5 off/on ramps Expenditure to Date $ The city has in its possession copies of bills, auditor warrants and other substantiating documents that such expenditures have been made. These documents are available for your inspection upon written request, and will be retained in City's possession as required per State guidelines. The city certifies that this report is a true and correct statement of cost and work performed and that none of these costs were incurred prior to May 16, 2008. City Clerk Director of Public Works/ City Engineer Date Date \\SPHGOFILE2301\Road\Road Program\Prop.42& IB\Prop. 1B\Prop. 1B FY2007-08 Disbursement\10 San Juan Capistrano 1B Cert Form.doc • �view • 32400 PASEO ADELANTO v / MEMBERS OF THE CITY COUNCIL SAN JUAN CAPISTRANO,CA 92675 SAM ALLEVATO (949)493-1171 utOnNAnH THOMAS W.HRIBAR (949)493-1053 FAX 1 ISInI03MH 1961 MARK NIELSEN www.sanjuancapistrano.org 1776 JOESOTO • • DR.LONDRES USO TRANSMITTAL TO: Harry Persaud AICP, PMP " Manager, Road Program/Special District O.C. Public Works/Road Division County of Orange 300 N. Flower, 3rd Floor Santa Ana, CA 92703-5000 DATE: April 21, 2008 o T e FROM: Maria Morris, Deputy City Clerk RE: Proposition 1 B — City Agreement L Enclosed are three original agreements. PIE agreement. If you have questions concemir Senior Management Analyst (949) 443-066: Cc: Jill Thomas, Senior Management Analyst San Juan Capistrano: Preserving the Past to Enhance the Future " Pnnled on 100%recycled paper • 4/15/2008 SUPPLEMENTARY REPORT D9 TO: Dave Adams, City Manager FROM: Nasser Abbaszadeh, Engineering & Building Director SUBJECT: Consideration of Approving an Agreement to Receive Proposition 1B funds as Allocated by the County of Orange for CIP No. 111, Camino Capistrano and Del Obispo Intersection Improvements and CIP No. 404, Junipero Serra and Rancho Viejo Road Intersection Improvements. RECOMMENDATION By motion, approve the attached agreement No. D08-041 to participate in the County of Orange Proposition 1B funding for CIP No. 111, Camino Capistrano and Del Obispo Intersection Improvements and CIP No. 404, Junipero Serra and Rancho Viejo Road Intersection Improvements. Background On March 4, 2008, the Orange County Board of Supervisors adopted Resolution No. 08-016, allocating the County's Proposition 1B (Prop 1B) funds for street improvement projects throughout Orange County. The County's first allocation of Prop 1B funding will be in the amount of$24,683,910.29. Eleven (11) projects from competing cities in the 51h District were awarded Prop 1B funding. The Orange County Board of Supervisors awarded funding in the amount of $500,000 for two projects in the City of San Juan Capistrano: CIP No. 111, Camino Capistrano and Del Obispo Intersection Improvements and CIP No. 404, Junipero Serra Road and Rancho Viejo Road Intersection Improvements. It should be noted that this Prop 1 B allocation is in addition to the County's CAP grant funds and the Prop 42 programmed funds the City is to receive in FY 2008-2009, directly from the State. The attached Prop 1 B Agreement requires the City to commit to the following: 1. Expend (pay to contractors) its Prop 1 B allocation(s) by June 30, 2011 on designated projects. 2. Provide the County with expenditure assessment at the end of the twelve (12) and twenty-four (24) month period in order to verify the City is expending its portion of the Prop 1 B monies as provided for in the Prop 1 B requirements. 3. City shall expend its Prop 1B allocation no later than June 30, 2011, with certification and return of unexpended funding to the County by August 31, 2011. The County will distribute Prop 1B allocations to the City upon the County receiving Prop 1B funding from the State, and approval of the attached agreement by the Board of Supervisors. Agenda Report • • April 15, 2008 Page 2 Distribution of Prop 1 B allocations will be made to the City in June 2008 (estimated), after the Department of Finance receives the appropriate paperwork for the eligible projects. It should also be noted that successful implementation of the Prop 1 B funding is dependent on the County receiving its programmed Prop 1 B funding from the State for FY 2008-2009. Any delay or change to the State's Prop 1 B grant program may directly impact the County's Prop 1B program implementation. County's tentative schedule to approve the Prop 1 B Agreements with cities is June 2008. COMMISSIONS/BOARD REVIEW, RECOMMENDATIONS Not applicable. FINANCIAL CONSIDERATIONS There is no city General Fund fiscal impact associated with this action. The County Prop 1B funds have been awarded on a competitive basis, and are project specific. Approval of agreement and receipt of these funds does not commit or restrict the City to any particular design/scope. However, Prop 1 B allocations shall be returned to the County if allocations are not expended by August 31, 2011. The receipt of this funding will allow staff to reallocate the existing programmed Capistrano Circulation Fee Program funding for both CIP No. 111 and No. 404 to other projects within the City's Traffic Congestion Relief Program as part of the Capital Improvement Program approvals. NOTIFICATION Not applicable. RECOMMENDATION By motion, approve the attached agreement No. D08-041 to participate in the County of Orange Proposition 1B funding for CIP No. 111, Camino Capistrano and Del Obispo Intersection Improvements and CIP No. 404, Junipero Serra and Rancho Viejo Road Intersection Improvements. Respectfully submitted: Prepared by: NasserAbbaszadeh, P.E. Jill Thomas Engineering & Building Director Senior Management Analyst Attachments: 1. Agreement Agreement No. D08-041 PROPOSITION 111 CITY AGREEMENT This CITY AGREEMENT, Agreement No. D08-041 ("Agreement") is made and entered into this day of 2008, 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. Pursuant to the Highway Safety, Traffic Reduction, Air Quality, and Port Security Bond Act of 2006, codified at Government Code sections 8879.20 et. seq., the County anticipates receipt of approximately $61.6 million in Local Streets and Roads State bond funds over the next ten years to be used for the purposes of reducing local traffic congestion and further deterioration, improving traffic flows, or increasing traffic safety ("Proposition 1B"). The County's first allocation will be for Fiscal Year 2007-08 in the amount of$24,683,910.29. Prior to receiving this allocation, the County is required to adopt into the County budget projects expected to be funded with Proposition 1B funds, and submit a list of these projects to the State Department of Finance for review. The County shall have three fiscal years to expend its Proposition 1B allocation following the fiscal year in which the allocation was made by the Controller, and any funds not expended within that period shall be returned to the Controller for reallocation. B. The California State Legislature has determined that the improvement and maintenance of all city streets is of general County interest. C. 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 and therefore desires to extend a portion of the County's Proposition 1 B allocations to participating cities. D. The City owns and operates streets in need of traffic congestion and traffic safety improvements, such as routine roadway maintenance 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 Proposition 1 B allocation. E. Pursuant to Streets & Highways Code section 1686, the Board of Supervisors has passed Resolution No. 08-016 on March 4, 2008, finding that the purposes of 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 will be made from the County Road Fund (Proposition 1 B) for the improvement and maintenance of City streets. F. On March 4, 2008, the Board of Supervisors approved a list of County and City Proposition 1B projects to be submitted to the Department of Finance for review and disbursement of Proposition 1B funds. Page 1 of 6 ATTACHMENT Agreement No. D08-041 G. This Agreement sets forth the terms and conditions by which the County will extend a portion of its Proposition 113 allocation to the City, and the City will follow all State Proposition 1B laws, State regulations, and any and all guidelines or other documents issued by the Department of Finance, the Controller, or any other State agency that is intended to interpret Proposition 1B ("Proposition 1B Requirements"). SECTION I IT IS MUTUALLY UNDERSTOOD BY THE PARTIES THAT: A. County shall submit a Proposition 113 project list to the Department of Finance for review and disbursement of the County's first Proposition 113 allocation. The City project(s) approved by the Board of Supervisors for Proposition 1B funding is attached hereto as Exhibit A. This Agreement allows the disbursement of a portion of the County's Proposition 1B funds to the City without the requirement of City submitting an invoice requesting Proposition 1B funds. B. Upon receipt of this allocation from the State, County will timely issue a portion of its allocation to City, in the amount shown on Exhibit A, or as limited by the State should the State pre-determine that any'City project or portion of the project is ineligible. C. City shall abide by all Proposition 1B Requirements, as these requirements may change from time to time. This includes, but is not limited to, meeting the project delivery and expenditure deadlines, and using the County's Proposition IB allocation to reduce City's traffic congestion and further deterioration, improving traffic flows, or increasing traffic safety. D. County will conduct a City expenditure assessment at the end of the twelve (12) and twenty-four (24) month periods in order to verify if City is expending its Proposition 1B allocation as provided for by Proposition 113 Requirements. City shall report the status of its Proposition 1B project(s) to County on or before June 10, 2009 and June 10, 2010 for FY 2007-08 allocation. The status report shall include the date of project award, amount of award, percent completion of project, estimated completion date, the amount of funds that have been expended, and the remaining County Proposition IB allocation to be expended. In the event County wishes to conduct a City expenditure assessment at any time prior to the end of a fiscal year, City shall provide a status report to County within two (2) weeks of a written request in accordance with Section I.D. E. County will prepare any necessary amendments to the Proposition 1B project list in June 2009 and June 2010 based on the status reports of all Proposition 1B participating cities. If one or more city status reports show an inability to expend the entire Proposition 1B allocation within the required statutory timeframe, or if the County or State deems any expenditure to be ineligible, County in its sole discretion will determine whether to reallocate the unexpended city funds to the City by preparing a revised Proposition IB project list for the DOF and an amendment to this Agreement. In no event will County submit a revised project list to the DOF more than once per fiscal year. F. City shall expend its Proposition IB allocation no later than June 30, 2011 per Proposition 113 Requirements. Fiscal year 07-08 Proposition IB funds may only be expended after Page 2 of 6 Agreement No. D08-041 County receives its 1B allocation from the State. Any portion of the city's allocation not expended by this deadline shall be returned to the County in a timely manner, but no later than August 31, 2011. G. In the event of an audit, City shall provide County, and the State if necessary, all project and finance documentation as required within the timeframe specified by the State. City shall attend all audits involving its Proposition 113 projects as required by State. If the State finds that any City expenditure is ineligible or is out of compliance with Proposition 1B Requirements, that expenditure shall be reimbursed to the County no later than 60 days from the State's determination. SECTION 11 MISCELLANEOUS PROVISIONS: A. Availability of Funds County's distribution of funds to the City depends entirely on the County receiving its Proposition 113 allocation from the State. County shall not disburse the City's allocation until such time that the County receives its Proposition 1B allocation from the State. B. Indemnification City shall indemnify, defend with counsel approved in writing by County, save and hold County and each of its elected officials, officers, directors, agents and employees harmless from any and all claims, injuries, liabilities, actions, damages, losses or expenses of every type and description to which they may be subjected arising out of any act or omission of, its employees, representatives, agents and independent contractors in connection with the implementation of the actions described in this Agreement. City shall return its Proposition 1B allocation to the County (or State as appropriate, with written consent from the County) within the timeframe contemplated under this Agreement should 1) City fail to expend all of its Proposition 1B allocation within the specified timeframe; 2) the State or County deems any City expenditure to be ineligible; or 3) the County's Proposition 1B aid to cities be found to be incompatible with Proposition 1B Requirements. C. Assignment This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Parties. No assignment of City's interest in this Agreement shall be made without the written consent of the County. Furthermore, City agrees that Proposition 1 B allocations shall not be expended on, given to, shared with, or otherwise provided to any other city, local agency or other entity not contemplated under this Agreement. D. Entirety & Amendments This Agreement contains the entire agreement between the Parties with respect to the matters provided for herein. No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the Parties; no oral understanding or agreement not incorporated herein shall be binding on either of the Parties; and no exceptions, alternatives, substitutes or revisions are valid or binding on County unless authorized by County in writing. Page 3 of 6 Agreement No. D08-041 E. Severability If any part of this Agreement is held, determined, or adjudicated to be illegal, void, or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible. F. Calendar Days Any reference to the word "day" or "days" herein means calendar day or calendar days,respectively, unless otherwise expressly provided. G. Notices Notices or other communications which may be required or provided under the terms of this Agreement shall be given as follows: City: Director of Public Works/City Engineer Public Works Department City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Phone 949-443-6301 Facsimile 949-493-1053 and County: Director of Public Works County of Orange PO Box 4048 Santa Ana, CA 92702-4048 Phone 714-834-2308 Facsimile 714-834-2496 All notices shall be in writing and deemed effective when delivered in person or deposited in the United States mail, first class, postage prepaid and addressed as above. Notwithstanding the above, the Parties may also provide notices by facsimile transmittal, and any such notice so given shall be deemed to have been given upon receipt during normal business hours or, in the event of receipt after business, on the following business day. Any notices, correspondence, reports and/or statements authorized or required by this Agreement, addressed in any other fashion shall be deemed not given. H. Termination County may terminate this Agreement for any reason provided that the City has not awarded any project on which its allocation will be expended. After the City has awarded a project on which its 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 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 to cure within said thirty (30) day period, City proceeds thereafter to complete the cure in a manner and time line Page 4 of 6 Agreement No. D08-041 acceptable to County. During this period before the effective termination date, City and County shall meet to attempt to resolve any dispute. I. Breach The failure of the City to comply with any of the terms and conditions of this Agreement or the Proposition 1 B Requirements shall be a material breach of this Agreement. J. Binding Obligation The Parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitutes the legally binding obligation of their respective organization or entity enforceable in accordance with its terms. K. Governing Law and Venue This Agreement has been negotiated and executed in the State of California and shall be governed by and construed under the laws of the State of California. In the event of any legal action to enforce or interpret this Agreement, the sole and exclusive venue shall be a court of competent jurisdiction located in Orange County, California, and the Parties hereto agree to and do hereby submit to the jurisdiction of such court, notwithstanding Code of Civil Procedure, Section 394. L. Attorney's Fees In any action or proceeding to enforce or interpret any provision of this Agreement, or where any provision hereof is validly asserted as a defense, each party shall bear its own attorney's fees, costs and expenses. M. Waiver of Jury Trial Each Party acknowledges that it is aware of and has had the opportunity to seek advice of counsel of its choice with respect to its rights to trial by jury, and each Party, for itself and its successors, creditors, and assigns, does hereby expressly and knowingly waive and release all such rights to trial by jury in any action, proceeding or counterclaim brought by any Party hereto against the other (and/or against its officers, directors, employees, agents, or subsidiary or affiliated entities) on or with regard to any matters whatsoever arising out of or in any way connected with this Agreement and/or any other claim of injury or damage. Page 5 of 6 Agreement No. D08-041 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: By: Mayor ATTEST: APPROVED AS TO FORM: By: City Clerk City Attorney County of Orange, a political subdivision of the State of California By: Date: Chairman, Board of Supervisors SIGNED AND CERTIFIED THAT A COPY OF APPROVED AS TO FORM: THIS DOCUMENT HAS BEEN DELIVERED COUNTY COUNSEL TO THE CHAIRMAN OF THE BOARD ORANGE COUNTY, CALIFORNIA By: By: Deputy Darlene J. Bloom Clerk of the Board of Supervisors of Orange County, California Page 6 of 6 County of Orange funded Proposition 1B Projects in City of San Juan Capistrano Exhibit Fiscal Year 2007-08 Agreement D08-041 Board District Project&Limits Phase Lead Agency Prop.1B allocation 5 Camino Capistrano and Del Obispo Intersection Improvements and Junipero Serra Rd.and Construction City of San Juan Capistrano $500,000 Rancho Viejo Rd.,east of 1-5 off/on ramps • • • • 4/15/2008 AGENDA REPORT pg Cps/ TO: Dave Adams, City Manager FROM: Nasser Abbaszadeh, Engineering & Building Director SUBJECT: Consideration of Approving an Agreement to Receive Proposition 1B funds as Allocated by the County of Orange for CIP No. 111, Camino Capistrano and Del Obispo Intersection Improvements and CIP No. 404, Junipero Serra and Rancho Viejo Road Intersection Improvements. RECOMMENDATION By motion, approve the attached agreement No. D08-xxx to participate in the County of Orange Proposition 1B funding for CIP No. 111, Camino Capistrano and Del Obispo Intersection Improvements and CIP No. 404, Junipero Serra and Rancho Viejo Road Intersection Improvements. Backaround On March 4, 2008, the Orange County Board of Supervisors adopted Resolution No. 08-016, allocating the County's Proposition 1B (Prop 1B) funds for street improvement projects throughout Orange County. The County's first allocation of Prop 1B funding will be in the amount of$24,683,910.29. Eleven (11) projects from competing cities in the 5th District were awarded Prop 1B funding. The Orange County Board of Supervisors awarded funding in the amount of $500,000 for two projects in the City of San Juan Capistrano: CIP No. 111, Camino Capistrano and Del Obispo Intersection Improvements and CIP No. 404, Junipero Serra Road and Rancho Viejo Road Intersection Improvements. It should be noted that this Prop 1 B allocation is in addition to the County's CAP grant funds and the Prop 42 programmed funds the City is to receive in FY 2008-2009, directly from the State. The attached Prop 1 B Agreement requires the City to commit to the following: 1. Expend (pay to contractors) its Prop 1 B allocation(s) by June 30, 2011 on designated projects. 2. Provide the County with expenditure assessment at the end of the twelve (12) and twenty-four (24) month period in order to verify the City is expending its portion of the Prop 1 B monies as provided for in the Prop 1 B requirements. 3. City shall expend its Prop 1B allocation no later than June 30, 2011, with certification and return of unexpended funding to the County by August 31, 2011. The County will distribute Prop 1 B allocations to the City upon the County receiving Prop 1 B funding from the State, and approval of the attached agreement by the Board of Supervisors. Agenda Report • • April 15, 2008 Page 2 Distribution of Prop 1 B allocations will be made to the City in June 2008 (estimated), after the Department of Finance receives the appropriate paperwork for the eligible projects. It should also be noted that successful implementation of the Prop 1B funding is dependent on the County receiving its programmed Prop 1 B funding from the State for FY 2008-2009. Any delay or change to the State's Prop 1B grant program may directly impact the County's Prop 1B program implementation. County's tentative schedule to approve the Prop 1 B Agreements with cities is June 2008. COMMISSIONS/BOARD REVIEW, RECOMMENDATIONS Not applicable. FINANCIAL CONSIDERATIONS There is no city General Fund fiscal impact associated with this action. The County Prop 18 funds have been awarded on a competitive basis, and are project specific. Approval of agreement and receipt of these funds does not commit or restrict the City to any particular design/scope. However, Prop 1B allocations shall be returned to the County if allocations are not expended by August 31, 2011. The receipt of this funding will allow staff to reallocate the existing programmed Capistrano Circulation Fee Program funding for both CIP No. 111 and No. 404 to other projects within the City's Traffic Congestion Relief Program as part of the Capital Improvement Program approvals. NOTIFICATION Not applicable. RECOMMENDATION By motion, approve the attached agreement No. D08-xxx to participate in the County of Orange Proposition 1B funding for CIP No. 111, Camino Capistrano and Del Obispo Intersection Improvements and CIP No. 404, Junipero Serra and Rancho Viejo Road Intersection Improvements. Respectfully submitted: Prepared by: ) =Engineering Abbaszadeh, P.E. Jill Thomas Engineering & Building Director Senior Management Analyst Attachments: 1. Agreement ATTACHMENT 1 Proposition 1 B Agreement will be distributed separately Monday, April 14 , 2008 with a supplementary report.