HomeMy WebLinkAboutCC AG PKT 2009-04-27 #HAGENDA STAFF REPORT
DATE: April 27, 2009
TO: Honorable Mayor and City Council
THRU: David N. Carmany, City Manager
FROM: Vince Mastrosimone, Director of Public Works
SUBJECT: COUNTY OF ORANGE AID PROGRAM AGREEMENT
FOR FISCAL YEAR 09/10
SUMMARY OF REQUEST:
This is a request for the City Council to adopt Resolution No. 5854 approving the
attached agreement as required by the County of Orange for participation in
Proposition 42 City Aid Program funding for Fiscal Year (FY) 09/10.
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 (FY) 08/09. The CAP has been formulated to
provide Orange County Cities with additional funds for city roadway maintenance
projects.
Due to the recent economic downturn, the County's Prop 42 allocation from the
State was lower than anticipated for FY 08/09, and it may be lower for FY 09/10
as well. For this reason, the City Aid Program allocation is reduced for FY 09/10.
The County has tentatively identified $7 million for the CAP, should the Prop 42
allocation come through as anticipated.
Of this grant funding our City is to receive $60,650 in FY 09/10 as our population
based percentage of the County's CAP program. Further, the County's CAP
grant funds are in addition to the Prop 42 programmed funds the City is to
receive in FY 09/10, direct from the State.
The attached Prop 42 CAP agreement requires the City to commit to the
following:
Agenda Item ~"~
Page 2
1. Maintain it's existing "Maintenance of Effort" further use of
local funds for street and highway, maintenance,
rehabilitation, reconstruction, and storm damage repair;
2. Expend (pay to contractors) it's FY 09/10 CAP allocation(s)
by June 30, 2011 on Prop 42 eligible projects or return CAP
allocations to County; and
3. Provide County with FY 09/10 CAP expenditure certification
by August 31, 2011,
County will distribute CAP allocations to the City upon 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 letter of request and proof of
project award documentation. It must 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 09/10. Any delay or change to the State's
Prop 42 grant program may directly impact CAP implementation and funding.
County's tentative schedule to approve the CAP agreements is June 2, 2009.
FISCAL IMPACT:
There is no City General Fund fiscal impact associated with this action. However,
FY 09/10 CAP allocations shall be returned to the County if allocations are not
expended (paid to contractors) by June 30, 2011.
REC®MMEIV®AT9®N:
That City Council adopt Resolution No. 5854 executing the attached, three
original agreements as required for participation in the County's Proposition 42
City Aid Program.
Pr pared B .
Vince Mastrosimone
Director of Public Works
NOTED AND APPROVED:
~~
David Carmany, City Manager
Attachment(s):
A. Resolution No. 5854
B. Agreements
RESOLUTION NUMBER 5854
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEAL
BEACH, CALIFORNIA APPROVING PROPOSITION 42 CITY AID
PROGRAM AGREEMENT WITH THE COUNTY OF ORANGE;
AND APPROVE RESOLUTION ALLOCATING THE ADDITIONAL
FUNDING FOR THE FY 09/10 LOCAL PAVING PROGRAM
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SEAL BEACH
DOES HEREBY RESOLVE:
Section 1. the Orange County board of Supervisors adopted Resolution No. 07-
109, allowing for the sharing of the County's Proposition 42 funds, and;
Section 2. the Orange County Board of Supervisors approved an Allocation of
$10,000,000 for the City Aid Program for Fiscal Year 09/10, and;
Section 3. the Orange County board of Supervisors has designated $60,650 as
the City of Seal Beach share of these City Aid Program funds, and;
Section 4. the City of Seal Beach has submitted the required documentation to
the County or Orange to claim said funding,
Section 2. The City Council hereby authorizes the City Manager to execute the
agreement.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Seal
Beach on this 27th day of April , 2009 by the following vote:
AYES: Councilmembers
NOES: Councilmembers
ABSENT: Councilmembers
ABSTAIN: Councilmembers
ATTEST:
Mayor
City Clerk
STATE OF CALIFORNIA }
COUNTY OF ORANGE } SS
CITY OF SEAL BEACH }
I, Linda Devine, City Clerk of Seal Beach, California, do hereby certify that the
foregoing resolution is the original copy of Resolution Number 5854 on file in
the office of the City Clerk, passed, approved, and adopted by the City Council of
the City of Seal Beach, at a regular meeting thereof held on the 27th day
of April , 2009.
City Clerk
Agreement No.D09-033
PROPOSITION 42
CITY AID PROGRAM FUNDING AGREEMENT
This CITY AID PROGRAM FUNDING AGREEMENT, Agreement No. D09-033
("Agreement") is made and entered into this day of , 2009, by and between
County of Orange, California, a political subdivision of the State of California ("County"), and
City of Seal Beach, a municipal corporation in the State of California ("City"). The County and
City shall sometimes be referred to separately as a "Parry" and collectively as the "Parties."
RECITALS
A. WHEREAS, Orange County cities have streets in need of routine roadway
maintenance, minor roadway widening (non-capacity enhancing) and storm damage
improvements, but have limited funds to address these needs.
B. WHEREAS, pursuant to Streets and Highways Code Section 1686, the California
State Legislature has determined that the improvement and maintenance of all city streets is of
general county interest. County believes that it is of general interest to the county and all the
cities within the county to extend financial aid to the cities for the general improvement and
maintenance of city streets in that the improvement of transportation congestion is of benefit to
all Orange County residents.
C. WHEREAS, County desires to assist Orange County cities with the improvement
and maintenance of city streets, and to help improve regional transportation needs within the
county. County receives Proposition 42 ("Prop. 42") allocations from the State's Transportation
Investment Fund ("TIF") for the purposes of street and highway maintenance, rehabilitation,
reconstruction and storm damage repair.
D. WHEREAS, With authorization from the State, County has established its Prop.
42 City Aid Program ("CAP"). County will allocate a portion of County's Prop. 42 funds to
participating cities for the purposes of routine roadway maintenance, minor roadway widening
(non-capacity enhancing) and storm damage improvements within the cities ("CAP Funds").
City's expenditure of CAP Funds is to be in accordance with California Constitution Article XIX
B Section 1 and Revenue and Taxation Code Section 7104, and all other applicable State rules,
regulations and guidelines ("Prop. 42 Requirements").
E. WHEREAS, City owns and operates streets in need of routine roadway
maintenance, minor roadway widening (non capacity enhancing) and storm damage
improvements, and acknowledges that it has limited funds by which to address these needs.
Therefore, City is in support of receiving CAP Funds.
NOW, THEREFORE, in consideration of the foregoing recitals of fact, the mutual covenants and
conditions contained herein and other consideration, the value and adequacy of which are hereby
acknowledged, the Parties agree as follows:
Page 1 of 6
Agreement No.D09-033
1. City Request for CAP Funds
Prior to disbursement of CAP Funds, City shall provide County with a request for CAP Funds
listing the proposed project(s), delineating all costs for project design, :construction, and
construction management that comply with Prop. 42 Requirements, and referencing Agreement
by number. City shall also provide documentation, such as a city council minute order,
indicating award of the project(s), the contractor to which the project(s) was awarded, and the
amount of awazd, which award must be greater than the amount of the request (collectively,
"CAP Funds Request").
2. Procedures for the Disbursement of CAP Funds
2.1 After County reviews and confirms eligibility of City's CAP Funds Request,
County will disburse CAP Funds to City in accordance with this Section 2 in an amount not to
exceed $60,650.00.
2.2 County will disburse CAP Funds to City in the order it receives eligible CAP
Funds Requests from all participating cities, i.e., on a "first come, first served" basis. County
will disburse CAP Funds to City upon County's receipt of its fiscal year 09/10 Prop. 42
allocations from the State. CAP Funds will not be disbursed to City until such time that
adequate Prop. 42 funds aze made available to County to pay all participating cities which have
previously submitted eligible CAP Funds Requests.
2.3 CAP Funds shall be allocated proportionally based on the percentage of City's
population compazed to the total population of all participating cities as of the latest estimates
published by the Demographic Research Unit of the California Department of Finance.
2.4 County's disbursement of CAP Funds is subject to the State's allocation of Prop.
42 funds to County including, but not limited to, allocation delays by the State or changes to
Prop. 42 Requirements.
3. City Obli ations
3.1 In order to receive CAP Funds, City shall maintain its existing Maintenance of
Effort ("MOE") of local funds for street and highway, maintenance, rehabilitation,
reconstruction, and storm damage repair. City must annually expend from its general fund for
street, road, and highway purposes an amount not less than the annual average of its
expenditures from its general fund during the 1996-97, 1997-98, and 1998-99 fiscal yeazs, as
reported to the State Controller pursuant to Streets and Highways Code Section 2151.
3.2 City must expend its CAP Funds between July 1, 2009 and June 30, 2011. Any
CAP Funds not expended by June 30, 2011 ("Deadline") shall promptly. be returned to County,
but in no event shall City return CAP Funds later than August 31, 2011.
3.3 If City determines at any time that City cannot expend its CAP Funds by the
Deadline, City shall immediately notify County in writing of this determination. City shall then
Page 2 of 6
Agreement No.D09-033
return its remaining CAP Funds within thirty (30) days of said notification. Should City's CAP
Funds be returned to County prior to Deadline, County will attempt to reallocate the funds to
other County projects. However, if County is unable to do so, the funds will be returned to the
State.
3.4 Upon the expenditure of all CAP Funds, City shall promptly submit, but no later
than August 31, 2011, an expenditure certification to County, listing the project(s) for which
CAP Funds were used and certifying that all expenditures of CAP Funds comply with Prop. 42
Requirements.
3.5 Upon request by County, City shall provide County, within thirty (30) days of the
request, all documentation and other information relating to City's expenditure of CAP Funds.
3.6 In the event of an audit by the State, City shall provide State and/or County all
documentation requested by the State within the timeframe required by the State. City shall
work cooperatively with County during the course of the audit. City shall attend all audits and
audit proceedings, as needed. If the State finds that any City expenditure of CAP Funds is
ineligible or does not comply with Prop. 42 Requirements, the amount of the ineligible
expenditure shall be immediately reimbursed to County, which will be returned to the State.
4. Miscellaneous Provisions
4.1 Availability of Funds County's obligation is subject to the availability of funds
appropriated for this purpose, and nothing herein shall be construed as obligating County to
expend or as involving County in any contract or other obligation for future payment of money
in excess of appropriations authorized by law. If County's total Prop. 42 allocation from the
State falls 10 percent or more below the anticipated eighteen million, three hundred thousand
dollazs ($18,300,000) yearly allocation, County will adjust the seven million dollar ($7,000,000)
total CAP allocation by the same percentage. City's allocation of CAP Funds will likewise be
adjusted. There will be no adjustment if County's total Prop. 42 allocation from the State
exceeds County's anticipated allocation amount.
4.2 Indemnification & Hold Harmless City shall indemnify, defend with counsel
approved in writing, save and hold County and each of its elected officials, officers, directors,
agents and employees harmless from any and all claims, injuries, liabilities, actions, damages,
losses or expenses, including attorney's fees and costs, of every type and description to which
they may be subjected arising out of any act or omission of, its employees, representatives,
agents and independent contractors in connection with the implementation of the actions
described in this agreement. Should a City expenditure of CAP Funds be determined to be
ineligible by the State, City is further liable for any interest payments, fines, or other forfeitures
that may be assessed by the State.
Notwithstanding Sections 3.2 and 3.3, City shall return CAP Funds to County within thirty (30)
days should 1) the State or County deem any City expenditure of CAP Funds to be ineligible; or
2) the City Aid Program be found to be incompatible with State requirements.
Page 3 of 6
Agreement No.D09-033
4.3 Assig_mnent This Agreement shall be binding upon and inure to the benefit of
the successors and assigns of the Parties. No assignment of City's interest in this Agreement
shall be made without the written consent of County. Furthermore, City agrees that CAP Funds
shall not be expended on, given to, shared with, or otherwise provided to any other city, local
agency or other entity that is not contemplated under this Agreement.
4.4 Entirety & Amendments This Agreement contains the entire agreement between
the Parties with respect to the matters provided for herein. No alteration or vaziation 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 aze valid or binding on County unless
authorized by County in writing.
4.5 Severability If any part of this Agreement is held, determined, or adjudicated to
be illegal, void, or unenforceable by a court of competent jurisdiction, the remainder of this
Agreement shall be given effect to the fullest extent reasonably possible.
4.6 Calendar Davs Any reference to the word "day" or "days" herein means
calendaz day or calendar days respectively, unless otherwise expressly provided.
4.7 Notices Notices or other communications which may be required or
provided under the terms of this Agreement shall be given as follows:
City: Director of Public Works/City Engineer
Public Works Department
City of Seal Beach
211 8th Street
Seal Beach, CA 90740
Phone 562-431-2527
Facsimile 562-431-4067
and
County: Director/Chief Engineer, OC Engineering
OC Public Works
County of Orange
PO Box 4048
Santa Ana, CA 92702-4048
Phone 714-667-3213
Facsimile 714-834-2496
All notices shall be in writing and deemed effective when delivered in person or deposited in the
United States mail, first class, postage prepaid and addressed as above. Notwithstanding the
above, the Parties may also provide notices by facsimile transmittal, and any such notice so
given shall be deemed to have been given upon receipt during normal business hours or, in the
event of receipt after business, on the following business day. Any notices, correspondence,
Page 4 of 6
Agreement No.D09-033
reports and/or statements authorized or required by this Agreement, addressed in any other
fashion shall be deemed not given.
4.8 Termination County may terminate this Agreement for any reason provided
that City has not awarded any project on which its CAP allocation will be expended. After City
has awarded a project on which its CAP allocation will be expended, County may terminate this
Agreement if City is in breach of this Agreement. Any such termination shall be accomplished
by delivery to City a Notice of Termination, which notice shall become effective not less than
thirty (30) days after receipt, specifying the reason for the termination, the extent to which CAP
funding is terminated, and the date upon which the termination is effective.
4.9 Breach The failure of City to comply with any of the terms and conditions of
this Agreement shall be a material breach of this Agreement. A breach of this Agreement by
City may be grounds to not include City in future allocations of City Aid Program, as determined
by County.
4.10 Waiver of Jury Trial Each Parry 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 Parry hereto against the other (and/or against its officers, directors,
employees, agents, or subsidiary or affiliated entities) on or with regard to any matters
whatsoever arising out of or in any way connected with this Agreement and/or any other claim of
injury or damage.
4.11 Attorneys Fees In any action or proceeding to enforce or interpret any
provision of this Agreement, or where any provision hereof is validly asserted as a defense, the
Parties shall bear their own attorney's fees, costs and expenses.
4.12 Governing Law & Venue This Agreement has been negotiated and executed
in the State of California and shall be governed by and construed under the laws of the State of
California. In the event of any legal action to enforce or interpret this Agreement, the sole and
exclusive venue shall be a court of competent jurisdiction located in Orange County, California,
and the Parties hereto agree to and do hereby submit to the jurisdiction of such court,
notwithstanding Code of Civil Procedure Section 394.
//
//
//
Page 5 of 6
Agreement No.D09-033
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 ;igndtur~,,
all thereunto duly authorized by the City Council and the Board of Supervisors, respectively.
City of Seal Beach,
a municipal corporation
Date:
ATTEST:
City Clerk
Date:
SIGNED AND CERTIFIED THAT A COPY OF
THIS DOCUMENT HAS BEEN DELIVERED
TO THE CHAIRMAN OF THE BOARD
By:
Darlene J. Bloom
Clerk of the Board of Supervisors of
Orange County, California
By:
]~~~
David Carmany, City Manager
APPROVED AS TO FORM:
By:
City Attorney
County of Orange,
a political subdivision of the State of
California
By:
Chairman, Board of Supervisors
APPROVED AS TO FORM:
COUNTY COUNSEL
ORANGE COUNTY, CALIFORNIA
By:
Deputy
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