ATTACHMENT 3
IMPLEMENTATION AGREEMENT
BETWEEN THE COUNTY OF ORANGE AND THE CITY OF SAN CLEMENTE FOR
THE SOUTH ORANGE COUNTY INTEGRATED REGIONAL WATER MANAGEMENT GRANT PROPOSITION 1 ROUND 2
This Implementation Agreement (“IA”) is made and entered into by and between the County of Orange (“County”), a political subdivision of the State of California, and the City of San Clemente (Project Proponent), a local government operating in Orange County and seeking grant funding from the California Department of Water Resources (DWR) Proposition 1 program. This IA is effective when signed by the County and Project Proponent. County and Project Proponent may be referred to as Parties and individually as Party.
RECITALS
WHEREAS, the County will accept and receive grant funds from the State of California under the State's Proposition 1 Integrated Regional Water Management Grant Program through that certain agreement entitled “Grant Agreement between the State of California Department of Water Resources (DWR) and the County of Orange, Agreement No.4600015416 (“Grant Agreement”), which agreement is attached as Attachment 1 and incorporated herein by reference;
WHEREAS, Project Proponent operates in South Orange County, the area named in the San Diego Regional Water Quality Control Board's Basin Plan as the San Juan Hydrologic Unit (“Region”);
WHEREAS, Project Proponent has collaborated with County and others to complete a successful Integrated Regional Water Management Plan (“IRWMP”), a plan integrating water resource related activities throughout the Region into a common scheme of prioritization and to facilitate collaborative implementation of agreed upon strategies;
WHEREAS, the Grant Agreement authorizes Proposition 1 grant funding for those IRWMP projects that have been included into the Grant Agreement, pursuant to the terms of the Grant Agreement;
WHEREAS, Project Proponent is the local project sponsor of the Recycled Water Quality Improvement Project (“Project” or “the Project”), which has been included in the Grant Agreement; and
WHEREAS, this IA describes the obligations of the Parties and the procedures by which the County will disburse Proposition 1 grant funds to Project Proponent pursuant to the Grant Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1.General Obligations of the Parties
Project Proponent agrees that the cooperative and integrated implementation of the IRWMP is in the best interest of the Region. Project Proponent agrees to collaborate in good faith to implement its Project under the IRWMP. b. County shall receive and administer any funds received under the Grant Agreement for the purposes of administration,
implementation, and/or revision of the IRWMP in accordance with the Grant Agreement.
c. County may retain qualified consultants for use on IRWMP matters, subject to the County's normal rules and procedures for procuring such services.
d. County may undertake efforts directly on behalf of the Project Proponent, if necessary.
e. County will provide funds received and allocated for implementation of the Project to Project Proponent in accordance with the Grant Agreement and as provided herein.
2. Funding and Implementation of IRWMP Projects
Funding received under the Grant Agreement will be administered in accordance with the following provisions:
a. Upon receipt of funds from the State, County will allocate funds received under the Grant Agreement to Project Proponent in accordance with the funding allocations specified in the IRWMP for each Project. Any required priorities for funding projects in the IRWMP will be developed by County in consultation with Project Proponent.
b. County will be responsible for entering into necessary contracts and agreements with the State for funds on behalf of the Project Proponent and for accounting for such funds and submitting all required reports associated with such funds. County is hereby designated “Contract Administrator” of any contracts with the State
for this purpose.
c. Project Proponent, upon receiving funding under this IA, shall be a “Local Project Sponsor as defined in and for purposes of the Grant Agreement, and agrees to abide by all terms and conditions applicable to Local Project Sponsor in the Grant Agreement. d. County shall draft and approve a process for administering grant funds under the Grant Agreement. County shall be entitled to approximately 5% of all grant funds in order to pay for County's administration costs. County may in its discretion withhold more than 5% if a Project Proponent does not meet invoicing deadlines or if incomplete paperwork is submitted and the additional cost of County's contract administration services exceeds 5% of the disbursed grant funds to Project Proponent. In that case, County shall be entitled to its full costs of administration.
e. Project Proponent is responsible for the development and implementation of the Project, including, but not limited to, and if applicable, project and environmental planning, design, permitting, construction, project administration, documentation, and completion of any required mitigation, monitoring, or reporting. Project Proponent agrees to be the lead agency for the Project for purposes of the California Environmental Quality Act.
f. Project Proponent shall be responsible for completing all elements of the Project scope of work and for delivering to County any and all requirements, deliverables, documents and documentation as described in the Grant Agreement. All documents provided to County for transmission to DWR shall be in electronic format acceptable to County.
g. Project Proponent shall be reimbursed up to the maximum grant amount identified in the Grant Agreement for the Project. If the actual cost of the Project exceeds the maximum grant amount, County shall have no obligation to disburse grant funds or any other funds for such excess costs.
h. County may withhold from Project Proponent all or any portion of the grant funds if Project Proponent has materially violated, or threatens to materially violate, any term, provision, condition, or commitment of this IA; Project Proponent's expenditure is ineligible under the Proposition 1 program as determined by County or DWR; Project Proponent fails to maintain reasonable progress toward completion of the Project; or DWR directs County to withhold any such grant reimbursement. County shall give immediate notice of
such direction from DWR to Project Proponent.
i. Project Proponent agrees, if applicable, to collect, manage and report performance and analytical data related to the Project in a manner that facilitates the reporting and management in accordance with DWR standards and consistent with the Grant Agreement and the procedures to be developed by County. j. Project Proponent agrees to ensure that County, DWR, or any authorized representative thereof, shall have suitable and reasonable access to the Project site at all reasonable times during construction, and thereafter for the useful life of the Project, as applicable.
k. Project Proponent shall provide the deliverable to County in advance of the date shown in Exhibit C of the Grant Agreement for the component.
l. Project Proponent shall provide County evidence of insurance or self-insurance (if self-insured, include limits, if any, of selfinsurance), and other financial information as needed to comply with the terms of Grant Agreement.
m. As required in the Grant Agreement, Project Proponent shall name the County, the State, and the respective officers, agents and employees of each, as additional insureds on Project Proponent’s liability insurance for activities undertaken under this IA.
3. Additional Terms and Conditions
a. Obligation to Avoid Default: Project Proponent shall have the duty to facilitate the County’s performance of all requirements of the Grant Agreement, in order to avoid any default of the Grant Agreement, as defined in paragraph 12 of the Grant Agreement. This duty includes, but is not limited to, promptly responding to County requests for information and providing any and all requested documents, permits, invoices, progress and project completion reports as required by the Grant Agreement, and working with the County to assist and resolve any disputes that may arise under the Grant Agreement. All information about the Project is the responsibility of the Project Proponent. Project Proponent agrees that County will administer this IA and the overall program of implementation, that County review of components is discretionary, and Project Proponent shall not assume that County will discover errors and/or omissions. While County will submit grant applications, factual reports, monitoring data, and the like to granting agencies on behalf of Project Proponent, Project
Proponent is solely responsible for the accuracy, completeness, and timeliness of project information submitted to County for this purpose. b. Indemnity. Project Proponent shall defend, indemnify and hold harmless County and any other project proponent identified in the IRWMP, whose project may be included or amended into the Grant Agreement and who enters into an implementation agreement with the County, against any and all liability, loss, expense, attorney's fees, or claims for injury or damages arising out of:
i. Project Proponent's failure to comply with its
obligations under this IA.
ii. Any act or omission of Project Proponent that
prevents County from complying with County's
obligations under the Grant Agreement.
iii. Project Proponent's operation of any project funded through this IA.
Project Proponent's indemnity obligation shall be in proportion to and extend only to such liability, loss, expense, attorney's fees or claims for injury or damages as are caused by or result from the negligent or intentional acts or omissions of Project Proponent. County agrees that it shall include this provision in all implementation agreements entered into with any other project proponent in connection with the Grant Agreement.
County shall indemnify Project Proponent against any and all liability, loss, expense, attorney's fees, or claims for injury or damages arising out of (1) County’s failure to include this provision, or (2) County’s failure to include the third party beneficiary provision described under Section 3.g., below. c. Assignment. Neither this IA, nor any duties or obligations under this IA, nor any of the Project facilities (if any) shall be assigned by Project Proponents without the prior written consent of the County. Should an assignment or transfer occur with consent of the County, whenever County or the Project Proponent are named or referred to, such reference shall be deemed to include the successor to the powers, duties and functions that are presently vested in County and the Project Proponents, and all agreements and covenants required hereby to be performed by or on behalf of County and Project Proponent shall bind and inure to the benefit of the respective successors thereof, whether so expressed in such assignment or not.
d. Modification. This IA may be amended or modified only by written agreement of all Parties, unless required by DWR, in which case County may unilaterally modify the IA. Any such written modification shall be attached and incorporated hereto.
e. Term. This IA will continue in effect until the completion of all projects included in or amended into the Grant Agreement unless terminated or extended by mutual agreement of the County and Project Proponent. If County terminates this IA before completion of efforts, Project Proponent agrees to work with any other project proponents to designate a different entity to assume the responsibilities of County.
f. Completion by Project Proponent. In the event Project Proponent has completed the Project and all applicable documents, deliverables, and requirements, is not currently receiving grant funds, and has received acceptance of completion of the Project, Project Proponent may terminate its participation in this IA upon ninety (90) days prior written notice to the County. Such termination shall be effective ninety (90) days after the notice is received or deemed received. Notwithstanding the foregoing, the Project Proponent shall continue to be responsible for any and all outstanding obligations, including, but not limited to, any debts, liabilities, useful life operation covenants or other financial commitments incurred or pledged by Project Proponent, subject to constitutional debt limitation provisions of the law.
g. No Third-Party Beneficiaries. Except as set forth in this subsection (g), nothing in this IA shall be construed to give any person, other than the County and Project Proponent, any legal or equitable right, remedy or claim under or in respect of this IA or any provisions herein. This IA is intended to be for the sole and exclusive benefit of the County and Project Proponent, except that: any other project proponent whose project is included in or amended into the Grant Agreement and enters into an implementation agreement with the County is a third party beneficiary for the limited purpose of enforcement of the indemnity terms set forth under Section 3.b. County agrees to incorporate this same provision in all other implementation agreements entered into with any other project proponent in connection with the Grant Agreement.
h. Severability. If any provision of this IA Agreement is held, determined or adjudicated to be illegal, void, or unenforceable by a court of competent jurisdiction, the remainder of this IA Agreement shall be given effect to the fullest extent reasonably possible.
i. Project Proponent represents and warrants that this IA Agreement has been duly authorized and executed and constitutes the legally binding obligation of its’ organization or entity, enforceable in accordance with its terms.
j. Counterparts. This IA Agreement may be executed in counterparts and the signed counterparts shall constitute a single instrument.
IN WITNESS WHEREOF, the Parties hereto have executed this IA on the dates opposite their respective signatures:
ORANGE COUNTY PUBLIC WORKS DEPARTMENT
By____________________________ Date________________
Name: Amanda Carr
Title: Deputy Director – OC Environmental Resources
APPROVED AS TO FORM:
COUNTY COUNSEL
By___________________________ Date________________
Deputy
CITY OF SAN CLEMENTE
By____________________________ Date________________
Name: Andy Hall
Title: City Manager
APPROVED AS TO FORM:
Counsel
By____________________________ Date________________
Name: