MEMORANDUM OF UNDERSTANDING
BETWEEN THE COUNTY OF MERCED
AND THE CITY OF MERCED
FOR THE BLACK RASCAL CREEK FLOOD CONTROL PROJECT
This Memorandum of Understanding ("MOU") is made and entered into by the County of Merced, a political subdivision of the State of California, its successors and assigns, through its Board of Supervisors (hereinafter "County"), and the City of Merced (hereinafter "City"), together named hereinafter the "Parties", to construct a flood control project called the Black Rascal Creek Flood Control Project (hereinafter "Project").
WHEREAS, flooding issues due to uncontrolled and unpredictable storm runoff flows from the Black Rascal Creek watershed that enter into Bear Creek have caused flooding and legal damages to the County, City and MID in the past, most recently in 1997 and 2006.
WHEREAS, the Parties took action after the 2006 storm by authorizing a feasibility study which, in 2009, provided a "preferred alternative" project location site to stem flows from the Black Rascal Creek Watershed into Bear Creek.
WHEREAS, the Parties were awarded a State grant of one million dollars ($1,000,000) in 2014 under the Merced Integrated Regional Water Management Authority (MIRWMA), to complete the California and Federal environmental documents for the "preferred alternative" as required.
WHEREAS, the Parties were awarded a ten million dollar ($10,000,000) grant from the Natural Resources Conservation Service's (NRCS) Regional Conservation Partnership Program (RCPP) to design and construct the Project. (Exhibit A- Table of Deliverables) WHEREAS, the NRCS RCPP grant was awarded in phases, with NRCS agreement 68- 9104-17-094 executed on September 22, 2017 providing for "Partner Technical Assistance" (TA) in the amount of two million, two hundred fifty thousand, six hundred ninety-three dollars ($2,250,693.00). (Exhibit A - Table of Deliverables) WHEREAS, the Parties were awarded nine million, seven hundred eight thousand, six hundred thirty-eight dollars ($9,708,638) from the State Department of Water Resources (DWR) Small Communities Flood Risk Reduction Program (SCFRRP) for permitting consultation and land acquisition for the Project. The agreement number 460013796 was executed and took effect on October 1, 2021 and ends on December 31, 2022. (Exhibit B - Budget)
WHEREAS, on January 9, 2018, the County, as lead agency, certified the Final Environmental Impact Report for the Black Rascal Creek Flood Control Project.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged and agreed, the Parties hereto do hereby agree as follows:
1. Lead Agency.
The Parties have determined that the County will act as the lead agency for purposes of California Environmental Quality Act compliance as it applies to the Black Rascal Creek Flood Control Project.
2. Project Funding.
A. The Parties acknowledge that each has limited resources to contribute to satisfy the joint and individual requirements identified in Exhibits A and B hereto, and agree that the greatest benefit will result when the Parties cooperate and coordinate in the allocation of resources, including but not limited to financial resources. The Parties wish to prioritize the Project's Design and Permitting phases. The Parties agree to first contribute staff time, expertise, knowledge, and funds to finalizing the Project design for final approval and all federal and state permits. Local Costs and Partner TA Contribution Costs associated with the Design and Permitting phases, described below, are currently anticipated to be two million and one hundred and twenty-three thousand and twenty ($2, 123,020). The Parties agree to share those costs in equal proportion, with each Party contributing an estimated amount of one million, sixty-one thousand, five hundred and ten ($1,061,510).
B. The Parties recognize and agree that the County may coordinate grant funding efforts and may assist in securing, where applicable, the necessary State and /or Federal grants, which will be used to help fund watershed design, land acquisition, and permitting.
The Parties agree that grant funds awarded to either Party that are required by the awarding body to be used on this Project are to be shared equally between the City and County in meeting their respective contribution obligations outlined in Exhibits A and B and described below. However, grants awarded to either Party that are not specifically required to be used on this Project shall not be shared equally between the Parties and shall only be applied to reduce the contribution obligation of the Party awarded the grant funds.
C. The Parties agree that the City shall pay fifty (50) percent, and the County shall pay fifty (50) percent of all "Partner TA Contribution" costs where the "Responsible Party" is listed as "Merced" in Exhibit A- Table of Deliverables, attached hereto and incorporated herein by reference, beginning with the deliverable designated as "Prepare Economic Analysis per NRCS requirement" and ending with the deliverable designated as "Finalize all Permits." The Parties recognize that the amounts listed under the column heading "Partner TA Contribution" are estimates, and the actual amount of a "Partner TA Contribution" for each deliverable may vary from what is listed in Exhibit A.
D. The Parties agree that the City shall pay fifty (50) percent, and the County shall pay fifty (50) percent of the "Local Cost" listed in Exhibit B- Budget, attached hereto and incorporated herein by reference, beginning with the task designated as "Permitting" and ending with the task designated as "Permit Design Support." The Parties recognize that the amounts listed under the column heading "Local Cost" are estimates, and the actual amount of the "Local Cost", as well as the relative percentages stated under the heading "Cost Share State/Local*" for each task may vary from what is listed in Exhibit B.
E. Any endeavor involving reimbursement or contribution of funds between the Parties, which is not otherwise addressed in this section, will be handled through a separate cooperative agreement between the Parties or an amendment of this MOU. All such agreements or amendments shall be made in accordance with applicable laws, regulations, and procedures, including the Federal Acquisition Regulation.
3. Notice.
Any notices which one Party may desire to give to another Party under this Agreement must be in writing and may be given either by (I) personal service, (II) delivery by a reputable document delivery service, such as but not limited to, Federal Express, that provides a receipt showing date and time of delivery, or (Ill) mailing in the United States Mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the Party as set forth below or at any other address as that Party may later designate by Notice. Notice shall be effective upon delivery to the addresses specified below or on the third business day following deposit with the document delivery service or United States Mail as provided above.
To County: Merced County
Department of Public Works
715 Martin Luther King Jr. Way
Merced, CA 95341
Attn: Dana Hertfelder, Director
To City: City of Merced
4. Litigation.
678 West 18th Street
Merced, CA 95340
Attn: City Manager
No Party may commence litigation against another Party to this Agreement regarding an alleged breach of this Agreement until such time as a written notice of default describing the alleged breach has been properly served in accordance with Section 3 above, and the other Party has failed to cure the alleged breach within thirty (30) days from the service of the notice of default.
5. Indemnity.
COUNTY shall indemnify, defend and hold harmless CITY, its officers, elected officials, employees and agents, from and against any claims, damages, costs, expenses, including any amount equal to reasonable attorney's fees, or liabilities arising out of or in any way connected with this Agreement, including, without limitation, claims, damages, expenses, or liabilities for loss or damage to any property, or for death or injury to any person or persons, but only in proportion to and to the extent such claims, damages, costs, expenses, attorney's fees, or liabilities are caused by the COUNTY's negligence, whether by action or omission, or willful misconduct.
CITY shall indemnify, defend and hold harmless COUNTY, its officers, elected officials, employees and agents, from and against any claims, damages, costs, expenses, including any amount equal to reasonable attorney's fees, or liabilities arising out of or in any way connected with this Agreement, including, without limitation, claims, damages, expenses, or liabilities for loss or damage to any property, or for death or injury to any person or persons, but only in proportion to and to the extent such claims, damages, costs, expenses, attorney's fees, or liabilities are caused by the CITY's negligence, whether by action or omission, or willful misconduct.
The obligations set forth above shall survive expiration or termination of this Agreement
6. General.
A. This Agreement contains the complete, final, entire, and fully integrated understanding and agreement between the Parties hereto. All prior negotiations, understandings, writings, and oral agreements pertaining to the subject matter hereof are superseded by this Agreement. No covenants, agreements, representations or warranties of any kind whatsoever have been made by any Party hereto, except as specifically set forth in this Agreement. All prior discussions, negotiations, and understandings have been and are merged and integrated into, and are superseded by, this Agreement. The following exhibits are specifically incorporated by reference, attached hereto, and made a part hereof, except when in conflict with this Agreement or modified herein:
Exhibit A (NRCS Grant Agreement- Table of Deliverables) Exhibit B (DWR Grant Agreement - Budget)
B. Each Party is entering into this Agreement based solely upon the representations set forth herein and upon each Party's own independent investigation of any and all facts such Party deems material.
C. This Agreement shall inure to the benefit of and shall be binding upon the Parties and their respective successors and assigns.
D. This Agreement may be amended only in writing, signed by the Parties.
E. The Parties understand and agree that the laws of the State of California shall govern the rights, obligations, duties, and liabilities of the Parties to this Agreement and also govern the interpretation of this Agreement without regard to any applicable conflicts of law, including all matters of validity, and performance.
F. The Parties agree that jurisdiction and venue for any legal challenge to the provisions of this Agreement or the enforcement of the rights or obligations hereunder shall be the Superior Court serving the County of Merced.
G. The Parties agree to cooperate in taking any further actions or executing documents reasonably necessary to effectuate the provisions of this Agreement.
H. Failure of any Party to insist upon strict observance of, or compliance with, all of the terms of this Agreement in one or more instances shall not be deemed a waiver of that Party's right to insist upon such observance or compliance with the other terms of the Agreement. The mere passage of time, or failure to act upon a breach, shall not be deemed as a waiver of any provision or term of this Agreement.
I. Each Party acknowledges that, in entering into and performing under this Agreement, it is acting as an independent entity and not as an agent or employee of the other Party in any respect. Nothing contained herein or in any document executed in connection herewith shall be construed as creating the relationship of partners, joint venturers, employee/employer or any other association of any kind or nature between the Parties, jointly or severally.
Page4 of 7
J. This Agreement is made and entered into for the sole benefit of the Parties and their successors in interest. No other person shall have any right of action based upon any provision of this Agreement.
K. This Agreement may be executed in one or more counterparts with each counterpart being deemed an original. No counterpart shall be deemed to be an original or presumed delivered unless and until the counterparts executed by each Party hereto are in the physical possession of the Party seeking enforcement thereof.
L. The person executing this Agreement on behalf of the Parties hereto warrants and represents that he/she has the authority to execute this Agreement on behalf of their entity and has the authority to bind their Party to the performance of its obligations hereunder.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement, which shall take effect on the date of the last Party's signature below.
COUNTY OF MERCED,
A Political Subdivision of the State of California
Corporation
Chairman, Merced County
Board of Supervisors
Date
APPROVED AS TO FORM:
BY:-----------
County Counsel
CITY OF MERCED,
A California Charter Municipal
City Manager
Date
APPROVED AS TO FORM:
BY:�
City'Attorney
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Exhibit B
BUDGET
No. Task
1 PerrmttIn9
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Total cost
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I $ _____ 33.201_ •
-�- 46.046
$ 224
S 188 0�
S 32 379
5 338 810
S 15.000 000
-tPt1ase I Task -Hamner Jewell & Assoc1a1es Title
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--------·-·---·---· [s 9 491.800 s 5 799 300
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