MEMORANDUM OF UNDERSTANDING
BETWEEN THE COUNTY OF MERCED
AND THE CITY OF MERCED
FOR VEGETATION MAINTENANCE OF BEAR CREEK WITHIN
MERCED CITY LIMITS FROM CROCKER DAM TO
CAMPUS PARKWAY
This Memorandum of Understanding ("MOU") is made and entered into by and between 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 perform environmental assessments, vegetation maintenance and debris removal, to both banks of Bear Creek in between Crocker Dam and Campus Parkway located within the City Limits (hereinafter "the Project").
WHEREAS, the County is performing the Project on behalf of the Merced Streams Group; and, WHEREAS, approximately fifty percent (50%) of Bear Creek is within City limits (as shown on Exhibit A); and,
WHEREAS, there exists an opportunity to complete the Project with an expedited schedule and at a reduced cost due to economies of scale with the County's project as opposed to the City performing a stand-alone project; and,
WHEREAS, the County has estimated costs of the Project within the City limits not-to-exceed $250,000; and,
WHEREAS, the County will schedule the Project to be performed to portions of Bear Creek to be shared at a fifty percent (50%) share of actual costs with the City.
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) Project. The Project encompasses those segments of Bear Creek depicted in Exhibit A, attached hereto and incorporated herein by reference. The Parties have acknowledged the County will perform the Project and the City will reimburse the County for the costs of the Project at a fifty percent share, up to a maximum of Two Hundred Fifty Thousand Dollars ($250,000). Any costs exceeding this amount shall require prior written approval from the City.
The Parties mutually agree to cooperate in order to help ensure that the Project is successfully completed with minimum impact to both Parties, and the public. 2) Term. This Agreement shall take effect on the date of the last Party's signature below ("Effective Date") and shall remain in effect until the completion of the Project and final payment and reimbursement by City to County as required herein, or until December 31, 2027, whichever occurs first, unless earlier terminated as provided in Section 3 of this MOU. 3) Termination. Either Party may terminate this Agreement for convenience, without cause, at any time by giving at least thirty (30) calendar days' prior written Notice to the other Party pursuant to the Notices section of this Agreement. In the event of a termination for convenience by either Party, City shall remain obligated to reimburse County for all actual, reasonable Project costs incurred by County, as well as any non-cancelable obligations or commitments entered into by County for the Project, prior to the effective date of termination, up to the maximum amount set forth herein.
In addition, either Party may terminate this Agreement for cause if the other Party fails to perform any material duty, covenant, or condition required under this Agreement. The non- breaching Party shall deliver written Notice specifying the nature of the default. If the breaching Party fails to cure the default within thirty (30) calendar days after receipt of such Notice, the non-breaching Party may terminate this Agreement immediately upon written Notice.
4) Condition Subsequent to Non-Appropriation of Funding. The obligations of the Parties under this Agreement are contingent upon the continued appropriation and allocation of funds by their respective governing bodies. If either Party's governing body fails to appropriate necessary funds for this Project in any subsequent fiscal budget, that Party shall immediately notify the other Party in writing. Under such circumstances, this Agreement may be terminated by either Party without penalty, provided that City shall remain liable for all actual, necessary, and non-cancelable costs incurred by County for the City's portion of the Project prior to the date of written notice.
5) Right-of-Way Access and Permits. City hereby grants to County, its employees, agents, and contractors, a no-fee right-of-entry and temporary license to enter upon City-owned property, rights-of-way, access points, and areas along Bear Creek within the City limits, as necessary to perform environmental assessments, vegetation maintenance, inspections, access and related activities associated with the Project. City shall issue to County or County's contractor, upon application, any required no-fee encroachment permits or other necessary authorizations for work within City property or public rights-of-way, subject to standard traffic control, public safety, environmental protection requirements, and evidence of insurance required under this Agreement.
6) Project Completion, Acceptance, and Maintenance. Upon completion of the Project, County shall notify City in writing. The City shall have the opportunity to inspect the completed vegetation maintenance work within the City limits to confirm that the work has been performed substantially in accordance with the approved Project scope and applicable requirements. Upon completion and acceptance of the Project, responsibility for ongoing vegetation maintenance of the portions of Bear Creek within the City limits shall remain with the City, unless otherwise agreed to in writing by the Parties. County shall have no ongoing maintenance obligations for the portions of Bear Creek located within City jurisdiction following the completion and acceptance of the Project. 7) Insurance. Prior to the commencement of work, and as a precondition to this MOU, the Parties shall maintain Commercial General Liability (CGL) insurance with limits no less than $1,000,000 per occurrence covering bodily injury, personal injury and property damage; and Workers Compensation Insurance as required according to the California Labor Code, including Employer's Liability limits of $1,000,000 per accident during the term of the MOU.
Each party shall provide the other certificates of insurance upon request. Each party and its officers, employees, and agents shall be endorsed to the other's CL policy as additional insured, using ISO form CG2026 or an alternate form that is at least as broad as form CG2026, as to any liability arising from the performance of this Agreement.
The Parties acknowledge that both entities may be self-insured or members of a public entity risk pool. Such self-insurance or public entity pooling shall satisfy the insurance requirements set forth herein.
8) CEQA. 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 Project. 9) 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.
Applicable Law. All parties agree that this Agreement and all documents issued or executed pursuant to this Agreement as well as the rights and obligations of the parties hereunder are subject to and governed by the laws of the State of California in all respects as to interpretation, construction, operation, effect and performance. No interpretation of any provision of this Agreement shall be binding upon County unless agreed to in writing by County and counsel for County.
11) Administrative Dispute Resolution. Prior to initiating formal litigation regarding any dispute arising under this Agreement, the Merced County Director of Public Works and the City Manager (or their designated representatives) shall meet in person or via teleconference within fifteen (15) calendar days of a written request by either Party to attempt to resolve the dispute in good faith. If the matter is not resolved within thirty (30) calendar days after the initial meeting, either Party may pursue any remedies available at law or in equity. 12) Binding Effect. This Agreement is for the benefit of and shall be binding upon all parties and their respective successors, heirs, executors, administrators, assigns and successors in interest.
13) Venue. The venue for any claims arising out of this Agreement shall be in the Merced County Superior Court, unless otherwise required by law.
14) Waiver. One or more waivers of any term, condition, or covenant of this Agreement by either party shall not be construed as a waiver of any other term, condition, or covenant. 15) Notices. "Notice" means any notice, demand, request, or other communication or document to be provided under this Agreement. All Notices shall be in writing and shall be given to the Party at its regular mail address, or such other address as the Party may later specify for that City County
City Manager Director of Public Works / Road Commissioner City of Merced Merced County
678 West 18th St 715 Martin Luther King Jr. Way
Merced, CA 95340 Merced, CA 95341
16) Entire Agreement. This Agreement, including the attachments incorporated herein by reference, represents the entire agreement and understanding between the parties. Any modifications to this Agreement shall be in writing and signed by authorized representatives of the parties.
17) Signing Authority. The individuals signing this Agreement below represent and agree that they have full and actual authority to bind their respective parties to this Agreement. 18) Duplicate Counterparts. This Agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the Parties hereto have executed this MOU, which shall take effect on the date of the last Party's signature below.
COUNTY OF MERCED, CITY OF MERCED,
A Political Subdivision of the State of California A California Municipal Corporation Daron McDaniel D. Scott McBride
Board Chair, Board of Supervisors City Manager
Date Date
APPROVED AS TO FORM: APPROVED AS TO FORM:
BY:
Deputy County Counsel