ORANGETHORPE AVE IMPROVEMENTS (HARBOR BLVD – LEMON ST) PROJECT MA#-080-__________
CITY OF FULLERTON/OC - 1 - 3.18.2022
AGREEMENT
This AGREEMENT (“ Agreement”) is made as of _________, 2022 (“ Effective Date ”) by and between COUNTY OF ORANGE (“ COUNTY”), political subdivision of th e State of California, and the CITY OF FULLERTON (“ CITY”), a municipal corporati on. COUNTY and CITY may sometimes hereinafter individually be referred to as “Party” or jointly as “Parties.”
RECITALS
A. On December 12, 2021 the CITY, as the lead agen cy of the Orangethorpe Avenue Improvement Project (“Project”) under the California Environmental Quality Act (CEQA), adopted the exempt status 15301 (c) to rehabilitate a segment of Or angethorpe Avenue between Harbor Boulevard and Lemon Street, as illustrated on “ Exhibit A ,” which shall include but not limited to pavement reconstruction, driveway approach reconstruc tion for compliance with the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., repair of damaged curb, gutter and sidewalk, construction of missing sidewalk, concrete bus pads, pedestrian push button upgrades for ADA compliance, sewer manhole and water valve adjustments and roadway signage and striping.
B. The COUNTY acknowledges Orangethorpe Avenue is a significant thoroughfare in the COUNTY’s arterial road network connecting cities and freeways, and that the segment within the Project limits at times serves as an alternative route for State Route 91 and State Route 57; and provides pedestrian access to a Fullerton Park and Ride.
C. COUNTY is amenable to bringing a resolution (“Resolution”) to the Orange County Board of Supervisors (“Board”) for the Board to find the Project is of general COUNTY interest in that it would make rights-of-way ADA compliant and improve connectivity for residents and business throughout northern Orange County.
D. Upon Board adoption of the Resolution by four-fifths vote of its members, COUNTY is agreeable to paying the City $1,000,000 toward the Project as COUNTY aid extended per Sections 1680-1684 of the California Street and Highway Code.
ORANGETHORPE AVE IMPROVEMENTS (HARBOR BLVD – LEMON ST) PROJECT MA#-080-__________
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E. This Agreement defines the specific terms, c onditions and funding respons ibilities between the Parties for the Project.
NOW, THEREFORE, it is mutually agreed between the Parties as follows:
1. INCORPORATION OF RECITAL TERMS
The terms set forth above in the Recitals are fully incorporated herein by this reference as though set forth fully herein.
2. TERM
This Agreement shall commence on the Effective Date and continue in full force and effect until the COUNTY has received the accounting required by 4.e below unless earlier terminated by either Party in accordance with the terms herein.
3. TERMINATION
Either Party may only terminate this Agreement with in five (5) business days of Agreement execution by written notice to the other as set forth herein.
4. CITY RESPONSIBILITIES
CITY agrees to:
a. Be the lead agency for funding, managi ng, and implementing the Project, design, PS&E, right-of-way acquisitions, relocations;
b. Maintain CEQA and other regulatory ag ency compliance, and furnish COUNTY documentation of compliance upon request;
c. Invoice the COUNTY for payment of a one-time contribution of $1,000,000 to the CITY in accordance with this Agreement and acknowledge the C OUNTY has no other financial or other obligation for the Project, except as stated in Section 5 s ubsection (a) below, and that the COUNTY is not responsible for Orangethorpe or any property or installations within the Project limits. d. Be solely responsible for all operation and maintenance fo r Orangethorpe Avenue or any property or installations within the Project limits during the Project and post-Project.
ORANGETHORPE AVE IMPROVEMENTS (HARBOR BLVD – LEMON ST) PROJECT MA#-080-__________
CITY OF FULLERTON/OC - 3 - 3.18.2022
e. Maintain an accounting of the funds provided by the CO UNTY pursuant to Section 5 (COUNTY RESPONSIBILITIES), subsection a, below. Sixty (60) days after the Project is completed, the CITY shall provide to the COUNTY an accountin g of the funds used and return any remaining funds, if any, to the COUNTY per Section 1684 of the Streets & Highways Code.
5. COUNTY RESPONSIBILITIES
COUNTY agrees to:
a. Adopt a resolution and make findings c oncerning the Project in order for COUNTY to pay the CITY $1,000,000 toward the Project as COUN TY aid extended per Sections 1680-1684 of the California Street and Highway Code;
b. Within forty (40) business days of receipt of an invoice from the CITY in accordance with this Agreement, shall make a one-time c ontribution of $1,000,000 to the CITY to be applied towards the Project cost. COUNTY shall pay the CITY this one-time contributi on sent to the CITY at the address in Section 8 (NOTICE) below.
6. COMPLIANCE WITH LAWS AND PERMITS
CITY shall, at its own cost and e xpense, promptly and at all times observe, comply with and carry out all present and future orders, regul ations, directions, rules, laws, or dinances, permits and requirements of all governmental authorit ies, including but not limited to enviro nmental regulatory authorities, with jurisdiction in, on, over and about the Project, or which arise from this Agreement.
In addition, CITY shall ensure that all construction contemplated herein is performed in accordance with any NPDES permit requirements or other water quality statutes, regulations, ordinances, or permits, applicable to the construction, includi ng but not limited to use of appropriate best management practices, so as to ensure that pollutants are not discharged into a flood control system.
No approvals or consents given hereunder by COUNTY, as a party to this Agreement, shall be deemed approval as to compliance or co nformance with applicable govern mental codes, laws, rules or regulations.
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ORANGETHORPE AVE IMPROVEMENTS (HARBOR BLVD – LEMON ST) PROJECT MA#-080-__________
CITY OF FULLERTON/OC - 4 - 3.18.2022
7. INDEMNIFICATION
A. To the fullest extent permitted by law, CITY shall defend (at CITY’s sole cost and expense with legal counsel reasonably ac ceptable to COUNTY), indemnify, protect, and hold harmless the COUNTY and their elected and appointed officials, officers, employees, agents, contractors and those special districts and agencies which COUNTY’s Board of Superv isors acts as the governing Board (collectively and individually referred to as the “ COUNTY’s Indemnified Parties ”), from and against any and all liabilities, actions, suits, claims , demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, pe nalties, and expenses in cluding legal costs and attorney fees (collectively “ Claims”), including but not limited to Clai ms arising from injuries to or death of persons (CITY’s employees included), for damage to pr operty, including property owned by COUNTY, or from any violation of any federal, state, or local law or ordinance, alleged to be caused by the negligent acts, omissions or willful misconduc t of CITY or CITY’s Indemnified Parties [as defined below] in connection with or arising out of the performance of this Agreement.
B. The indemnification and defe nse obligations of this Agreement shall survive its expiration or termination. The Parties agree that this Agreemen t shall constitute a separate agreement from any approval via third parties, and if the CITY Project is invalidated, in part or in whole, rendered null or set aside by a court of competent jurisdiction, the Parties agree to be bound by the terms of this Section (INDEMIFICATION), which shall survive such invalidation, nullification or setting aside.
8. NOTICES
All notices, documents, correspondence and communi cations concerning this Agreement shall be addressed as set forth in this Section, or as th e Parties may hereafter designate by written notice and shall be sent through the United States mail with pos tage prepaid. Any such mailing shall be deemed served or delivered forty-eight (48) hours after ma iling. Either Party may change the address for notices by giving the other Party at least ten (10) calendar days’ prior written notice of the new address.
Notwithstanding the above, either Party may also provide notices, documents, correspondence, or such other communications to the other by personal deli very or by Federal Express or similar courier service and so given shall be deemed to have been given upon receipt.
ORANGETHORPE AVE IMPROVEMENTS (HARBOR BLVD – LEMON ST) PROJECT MA#-080-__________
CITY OF FULLERTON/OC - 5 - 3.18.2022
To COUNTY:
County of Orange
OC Public Works
601 N. Ross Street
Santa Ana, CA 92701
Attn: Kevin Onuma, PE
County Engineer, OC Public Works
Tel: (714) 647-3939
Email: [email protected]
To CITY:
City of Fullerton
303 W. Commonwealth Avenue
Fullerton, CA 92832
Attn: Meg McWade, Public Works Director
Tel: (714) 738-6723
Email: [email protected]
9. AUTHORITY
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.
10. NO THIRD-PARTY BENEFICIARIES/ RELATIONSHIP OF PARTIES This Agreement is not intended to give or confer any benefits, righ ts, privileges, claims, actions, or remedies to any person, group or entity as a third-party beneficiary. This Agreement is by and between COUNTY and CITY and is not intended, and shall not be construed, to create the relationship of agent, servant, employee, partnership, joint venture or association, as between COUNTY and CITY.
11. GOVERNING LAW
This Agreement has been negotiated and executed in the State of California and shall be governed by and construed in accordance with the laws of the State of California. In the event of any legal action to enforce or interpret this Agreement, the sole a nd 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. The Parties specifically agree that by soliciti ng and entering into a nd performing services under this Agreement, CITY shall be deemed doing busine ss within Orange County from th e time of initiation of work, through the period when all work under this Agreement is terminated.
ORANGETHORPE AVE IMPROVEMENTS (HARBOR BLVD – LEMON ST) PROJECT MA#-080-__________
CITY OF FULLERTON/OC - 6 - 3.18.2022
12. SEVERABILITY
If any term, covenant, c ondition, or provision of this Agreemen t is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired, or invalidated thereby.
13. WAIVER OF RIGHTS
The failure of any Party to insist upon strict performance of any of the terms, covenants, or conditions of this Agreement shall not be deem ed a waiver of any ri ght or remedy that Pa rty may have; and shall not be deemed a waiver of the right to require st rict performance of all the terms, covenants, and conditions of the Agreement thereafter, nor a waiv er of any remedy for the subsequent breach or default of any term, covenant, or condition of the Ag reement. Any waiver, in order to be effective, must be signed by the Party whose right or remedy is being waived.
14. LITIGATION FEES
In the event of a dispute between the Parties concerning claims arising out of this Agreement, or in any action or proceeding brought to enforce or interpre t any provision of this Agreement or where any provision hereof is validly asserted as a defense, each Party shall bear its ow n litigation and collection expenses, witness fees, including but not limited to attorney fees and court costs.
15. REMEDIES
In addition to any other rights or re medies, either Party may take lega l action, in law or in equity, to cure, correct or remedy any defa ult, to recover damages for any default, to compel specific performance of this Agreement, to obtain injunctive relief, a declaratory judgment or any other remedy consistent with the purposes of this Agreement.
16. FORCE MAJEURE
Either Party shall be excused from performing its obligations unde r this Agreement during the time and to the extent that it is prevented from perf orming by an unforeseeable cause beyond its control, including but not limited to; any incidence of fire , flood; acts of God; comm andeering of material, products, plants or facilities by the federal, state or local governme nt; national fuel shortage; or a material act or omission by the other Party; when satisfactory evid ence of such cause is presented to ORANGETHORPE AVE IMPROVEMENTS (HARBOR BLVD – LEMON ST) PROJECT MA#-080-__________
CITY OF FULLERTON/OC - 7 - 3.18.2022
the other Party, and provided further that such nonperformance is unforeseeable, beyond the control and is not due to the fault or negligence of the Party not performing.
17. COUNTERPARTS
Agreement may be executed and delivered in any number of counterparts, e ach of which, shall be deemed an original, and all of which together shall constitute the same Agreement.
18. AMENDMENT(S)
It is mutually understood and agreed that no addition to, alteration of, or variation of the terms of this Agreement, nor any oral understand ing or agreement not incorporated herein, shall be valid unless made in writing and signed and approved by all necessary Parties.
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ORANGETHORPE AVE IMPROVEMENTS (HARBOR BLVD – LEMON ST) PROJECT MA#-080-__________
CITY OF FULLERTON/OC - 8 - 3.18.2022
IN WITNESS WHEREOF, the Parties have executed this Agreement the day and year first above written.
COUNTY
Approved as to Form
Office of the County Counsel
Orange County, California
By: ____________________________
Deputy
Date: _________________________
County of Orange,
a political subdivision of the State of
California,
By: _____________________________
Chairman of the Board of Supervisors
Orange County, California
CITY OF FULLERTON
Approved as to Form
By: _____________________________
Richard D. Jones
City Attorney
By: _____________________________
Fred Jung
Mayor
Attest: ___________________________
Lucinda Williams
Cit
y Clerk
Signed and certified that a copy of this
document has been delivered to the Chair
of the Board per G.C. Sec. 25103,
Reso 79-1535
ATTEST:
__________________________________
Robin Stieler
Clerk of the Board of Supervisors
Orange County, California
Approved
By: ____________________________
Date:
_________________________
EXHIBIT A