Peninsula Cities Coordinated Integrated Monitoring Plan (CIMP) MEMORANDUM OF UNDERSTANDING
BETWEEN
THE CITY OF RANCHO PALOS VERDES, THE CITY OF PALOS VERDES ESTATES,
THE CITY OF ROLLING HILLS ESTATES, THE CITY OF ROLLING HILLS, THE LOS
ANGELES COUNTY FLOOD CONTROL DISTRICT, AND THE COUNTY OF LOS
ANGELES
REGARDING THE ADMINISTRATION AND COST SHARING FOR DEVELOPMENT
OF THE COORDINATED INTEGRATED MONITORING PROGRAM FOR THE
PENINSULA CIMP AGENCIES
This Memorandum of Understanding (MOU), is made and entered into between THE
CITY OF RANCHO PALOS VERDES, a body corporate and politic, THE CITY OF
PALOS VERDES ESTATES, a body corporate and politic, THE CITY OF ROLLING
HILLS ESTATES, a body corporate and politic, THE CITY OF ROLLING HILLS, a body
corporate and politic, LOS ANGELES COUNTY FLOOD CONTROL DISTRICT
(LACFCD), a body corporate and politic, and THE COUNTY OF LOS ANGELES (LA
County), a political subdivision of the State of California. Collectively, these entities shall
be known herein as "PARTIES" or individually as "PARTY."
WITNESSETH
WHEREAS, the Regional Water Quality Control Board, Los Angeles Region
(Regional Board) adopted the National Pollutant Discharge Elimination System
Municipal Separate Storm Sewer System Permit Order No. R4-2012-0175 (MS4
Permit); and
- WHEREAS, the MS4 Permit became effective on December 28, 2012 and
requires that the LACFCD, LA County, and 84 of the 88 cities (excluding Avalon,
Lancaster, Long Beach, and Palmdale) within the County of Los Angeles comply with
the prescribed elements of the MS4 Permit; and
WHEREAS, the PARTIES have agreed to collaborate on the compliance of
certain elements of the MS4 Permit; and
WHEREAS, the PARTIES collaboratively prepared a final Scope of Work as
shown in Exhibit D and Request for Proposal to obtain a consultant to assist the
PARTIES with compliance with certain elements of the MS4 Permit; and
WHEREAS, the PARTIES propose for a consultant retained pursuant to this
MOU to prepare and deliver a Draft and Final Coordinated Integrated Monitoring
Program (CIMP) in compliance with certain elements of the MS4 Permit, at a total cost
of approximately eighty thousand dollars ($80,000) as shown in Table 1 of Exhibit A;
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WHEREAS, the PARTIES have determined that hiring a consultant to prepare
and deliver the CIMP will be beneficial to the PARTIES and they desire to participate
and will provide funding in accordance with the cost allocation in Table 3 of Exhibit A;
and
WHEREAS, the CITY OF RANCHO PALOS VERDES will act on behalf of the
PARTIES in the administration of the consultant service agreement for the preparation
of the CIMP; and
WHEREAS, the PARTIES have agreed to establish a CIMP Working Group
(comprised of designated staff from each PARTY) to provide technical oversight and
project management for the development of the CIMP, and
WHEREAS, the PARTIES agree that each shall assume full and independent
responsibility for ensuring its own compliance with the MS4 Permit despite the
collaborative approach of the MOU.
NOW, THEREFORE, in consideration of the mutual benefits to be derived by the
PARTIES, and of the promises contained in this MOU, it is hereby agreed as follows:
Section 1. Recitals: The recitals set forth above are fully incorporated as part of this
MOU.
Section 2. Purpose: The purpose of this MOU is to cooperatively fund the preparation
and submittal of the CIMP to the Regional Board.
Section 3. Cooperation: The PARTIES shall fully cooperate with one another to attain
the purpose of this MOU.
Section 4. Voluntary: this MOU is voluntarily entered into for the purpose of preparing
and submitting the CIMP to the Regional Board.
Section 5. Term: This MOU shall become effective on the earlier to occur of: (1) the
latest date of execution by a PARTY; or (2) December 28, 2013, and shall remain in
effect until the Regional Board's final approval date of the last outstanding portion of the
CIMP, or until the CITY OF RANCHO PALOS VERDES has provided written notice of
completion of the scope of work described hereto, and payment by all PARTIES of their
allocated pro-rata share hereunder.
Section 6. Assessment for Proportional Cost for CIMP: The PARTIES agree to pay the
CITY OF RANCHO PALOS VERDES for preparation and delivery of the CIMP in the
amounts shown in Table 3 of Exhibit A, based on the cost allocation formula shown in
Table 2 of Exhibit A, attached hereto and made part of this MOU by this reference. The
CITY OF RANCHO PALOS VERDES will invoice the PARTIES upon execution of this
MOU as shown in Table 4 of Exhibit A, based on the allocated costs for developing the
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CIMP and the project administration and management costs at a percentage of three
percent (3%) of the allocated costs for development of the CIMP. At the end of each
fiscal year, the CITY OF RANCHO PALOS VERDES will provide the PARTIES with a
statement with the actual contracted expenditures. Unexpended cost at the termination
of this MOU will be reimbursed to the PARTIES.
Section 7. CITY OF RANCHO PALOS VERDES agrees:
a. To utilize the funds deposited by the PARTIES only for the administration of the
consultant contract, project management, and the preparation and completion
of the CIMP.
b. To contract with the consultant retained pursuant to this MOU and to be
responsible for coordinating the activities of the consultant, ensuring adherence
to the Scope of Work in Exhibit D.
c. To ensure that each and every contract with the consultant or subcontractors
shall recite that the contract is for the benefit of the PARTIES and that the
consultant shall be paid solely from the contributions from the PARTIES. The
CITY OF RANCHO PALOS VERDES shall require the consultant retained
pursuant to this MOU to agree to indemnify, defend and hold harmless each
PARTY, its special districts, their elected and appointed officers, employees,
and agents, from and against any and all liability, including but not limited to
demands, claims, actions, fees, costs, and expenses (including attorney and
expert fees), arising from or connected with the Consultant's performance of its
agreement with the CITY OF RANCHO PALOS VERDES. In addition, the CITY
OF RANCHO PALOS VERDES shall require the Consul'tant to carry, maintain,
and keep in full force and effect an insurance policy or policies, and each
PARTY, its officers, employees, attorneys, and designated volunteers shall be
named as additional insureds on the policy(ies) with respect to liabilities arising
out of the Consultant's work. These requirements will also apply to any
subcontractors hired by the Consultant. This indemnification is in addition to the
other indemnities made herein.
d. To provide the PARTIES with an electronic copy of the draft and final CIMP as
submitted to the Regional Board within 5 business days of receipt from the
consultant.
e. To provide an accounting at the termination of the MOU or cancellation thereof
and return the unused portion of all funds deposited with the CITY OF
RANCHO PALOS VERDES using the cost allocation formula in Table 2 of
Exhibit A.
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f. To notify in writing the PARTIES if the actual cost of the preparation of the
CIMP will exceed the cost estimates shown in Exhibit A and obtain written
approval of the increased costs from the PARTIES. Upon written approval of
the cost increase by the PARTIES, the CITY OF RANCHO PALOS VERDES
will invoice the PARTIES per the cost allocation formula in Table 2 of Exhibit A.
The PARTIES have 60 days from receipt of the invoice to provide the payment
to RANCHO PALOS VERDES. In the event a PARTY does not approve of the
increased costs, the PARTY may withdraw from this MOU pursuant to Section
11.
g. To not submit the CIMP to the Regional Board unless and until the CIMP has
been approved, in writing, for submittal by all PARTIES to this MOU.
Section 8. The PARTIES further agree:
a. To make a full faith effort to cooperate with one another to achieve the
purposes of this MOU by providing information about project opportunities,
reviewing deliverables in a timely manner, and informing their respective
administration, agency heads, and/or governing body.
b. To fund the cost of the preparation and delivery of the CIMP and to pay the
CITY OF RANCHO PALOS VERDES for the preparation and delivery of the
CIMP based on the cost allocation shown in Table 2 of Exhibit A within 60
days of receiving an invoice.
c. To grant reasonable access rights and entry to the consultant, on an as-
needed basis during the terms of this MOU to each PARTY'S facilities (i.e.
storm drains, channels, catch basins, properties, etc.) (FACILITIES) to
achieve the purposes of this MOU, provided, however that prior to entering
any PARTY'S facilities, the CITY OF RANCHO PALOS VERDES or the
consultant shall provide written notice to such PARTY at least 72 hours in
advance. For the purposes of this provision, written notice shall include notice
delivered via e-mail that has been delivered to the applicable PARTY
representative identified on Exhibit B.
Section 9. Invoice and Payment
a. Payment: The PARTIES shall reimburse the CITY OF RANCHO PALOS
VERDES for their proportional share of the cost for preparation and delivery
of the CIMP and project administration and management costs as shown in
Table 4 of Exhibit A within 60 days of the invoice from the CITY OF RANCHO
PALOS VERDES.
b. Invoice: The CITY OF RANCHO PALOS VERDES will invoice PARTIES as
shown in Table 4 of Exhibit A.
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c. Late Payment Penalty: Any payment that is late shall be subject to interest on
the original amount due from the date that the payment first became due. The
interest rate shall be ten percent (10%) simple interest per annum. If the
PARTY remains delinquent beyond sixty (60) days after the due date, then
the CITY OF CITY OF RANCHO PALOS VERDES may notify the Regional
Board that the delinquent PARTY is no longer a participating member of the
CIMP, and said PARTY shall then be deemed to have terminated its
participation as a PARTY to this MOU ("EXCLUDED PARTY") and their name
may be removed from the CIMP. Any EXCLUDED PARTY's delinquent
amount(s) will be paid in accordance with the remaining PARTIES' pro-rata
share pursuant to Table 3 of Exhibit A, as adjusted to remove the
EXCLUDED PARTY from the allocation. The CITY OF RANCHO PALOS
VERDES will revise Table 3 of Exhibit A to show the recalculated costs for
each remaining participating PARTY; these revised exhibits will be included
with the next invoice to the PARTIES. The PARTIES shall retain all
contractual, legal, and equitable rights and causes of action to recover any
delinquent amounts owed by an EXCLUDED PARTY who failed to make such
payments.
Section 10: Indemnification
a. To the fullest extent permitted by law, each PARTY shall indemnify, defend, and
hold harmless each other PARTY, including its special districts, elected and
appointed officers, employees, agents, attorneys, and designated volunteers
from and against any and all liability, including, but not limited to demands,
claims, actions, fees, costs, and expenses (including reasonable attorney's and
expert witness fees), arising from or connected with the respective acts of each
PARTY arising from or related to this MOU; provided, however, that no PARTY
shall indemnify another PARTY for that PARTY'S own negligence or willful
misconduct.
b. In light of the provisions of Section 895.2 of the Government Code of the State of
California imposing certain tort liability jointly upon public entities solely by reason
of such entities being parties to an agreement (as defined in Section 895 of such
Code), each of the PARTIES hereto, pursuant to the authorization contained in
Section 895.4 and 895.6 of such Code, shall assume the full liability imposed
upon it or any of its officers, agents, or employees, by law for injury caused by
any act or omission occurring in the performance of this MOU to the same extent
such liability would be imposed in the absence of Section 895.2 of said Code. To
achieve the above-stated purpose, each PARTY agrees to indemnify, defend,
and hold harmless each other PARTY for any liability, cost, or expense that may
be imposed upon such other PARTY solely by virtue of Section 895.2. The
provisions of Section 2778 of the California Civil Code are made a part hereof as
if incorporated herein.
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Section 11. Withdrawal or Forfeiture
a. A PARTY may withdraw from this MOU upon 60 days written notice to the other
PARTIES ("WITHDRAWING PARTY"), subject to payment of any invoice
received from CITY OF RANCHO PALOS VERDES prior to or during the 60-day
notice period for its share of the cost of the work completed as of the date of its
notice of withdrawal, calculated in accordance with the cost-sharing percentages
set forth in Table 3 of Exhibit A. The effective withdrawal date shall be the sixtieth
(60th) day after CITY OF RANCHO PALOS VERDES receives the
WITHDRAWING PARTY's notice to withdraw from this MOU. CITY OF RANCHO
PALOS VERDES shall refund to the WITHDRAWING PARTY any uncommitted
and unused funds paid by the WITHDRAWING PARTY's effective withdrawal
date. All PARTIES understand, acknowledge, and agree that withdrawal from this
MOU will terminate any responsibility, liability, or obligation of the
WITHDRAWING PARTY under this MOU commencing on the effective
withdrawal date and that the WITHDRAWING PARTY shall remain liable for its
share of any loss, debt or liability incurred prior to the withdrawal date, and for
any work which could not be suspended. Withdrawal from this MOU does not
release any PARTY from the obligations set forth in MS4 Permit.
b. If a PARTY fails to substantially comply with any of the terms or conditions of this
MOU, that PARTY shall forfeit its rights to work completed through this MOU, but
no such forfeiture shall occur unless and until the defaulting PARTY has first
been given notice of its default and a reasonable opportunity to cure the alleged
default.
Section 12. General Provisions
a. Notices. Any notices, bills, invoices, or reports relating to this MOU, and any
request, demand, statement or other communication required or permitted
hereunder shall be in writing and shall be delivered to the Representative of the
PARTY at the address set forth in Exhibit B. PARTIES shall promptly notify each
other of any change of contact information, including personnel changes,
provided in Exhibit B. Written notice shall include notice delivered via email,
reader notification requested, or fax. A notice shall be deemed to have been
received on (a) the date of delivery, if delivered by hand during regular business
hours, or by confirmed facsimile or by email; or (b) on the third (3rd) business
day following mailing by registered or certified mail (return receipt requested) to
the addresses set forth in Exhibit B.
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b. Administration. For the purpose of this MOU, the PARTIES hereby designate as
their respective PARTY representatives the persons named in Exhibit B. The
designated PARTY representatives, or their respective designees, shall
administer the terms and conditions of this MOU on behalf of their respective
PARTY. Each of the persons signing below on behalf of a PARTY represents
and warrants that they are authorized to sign this MOU on behalf of such
PARTY.
c. Relationship of Parties. The PARTIES are and shall remain at all times as to
each other, wholly independent entities. No PARTY to this MOU shall have
power to incur any debt, obligation, or liability on behalf of another PARTY unless
expressly provided to the contrary by this MOU. No official, employee, agent, or
officer of a PARTY shall be deemed for any purpose whatsoever to bean official,
agent, employee or officer of another PARTY. Each PARTY shall have no
financial obligation to the other PARTIES of this MOU, except as herein
expressly provided.
d. Binding Effect. This MOU shall be binding upon and inure to the benefit of each
PARTY to this MOU and its respective heirs, administrators, representatives,
successors and assigns.
e. Amendment. The terms and provisions of this MOU may not be amended,
modified, or waived, except by an instrument in writing signed by all PARTIES
who have not terminated their interests herein or whose involvement has not
terminated by reason of non-payment. This paragraph applies to any changes
proposed for reasons including, but not limited to: (1) changes to the MS4 Permit
terms; (2) further guidance from the Regional or State Boards regarding
compliance; or (3) changes in the number of parties to this MOU.
f. Waiver. Waiver by any PARTY to this MOU of any term, condition, or covenant of
this MOU shall not constitute a waiver of any other term, condition, or covenant.
Waiver by any PARTY to any breach of the provisions of this MOU shall not
constitute a waiver of any other provision, nor a waiver of any subsequent breach
or violation of any provision of this MOU.
g. Law to Govern; Venue. This MOU shall be interpreted, construed and governed
according to the laws of the State of California. In the event of litigation between
the PARTIES, venue in the state trial courts shall lie exclusively in the County of
Los Angeles.
h. No Presumption in Drafting. The PARTIES to this MOU agree that the general
rule that an MOU is to be interpreted against the PARTY drafting it, or the
PARTY causing it to be prepared, shall not apply.
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L Interpretation. All PARTIES have been represented by counsel in the preparation
and negotiation of this MOU. Accordingly, this MOU shall be construed according
to its fair language.
j. Entire MOU. This MOU constitutes the entire agreement of the PARTIES with
respect to the subject matter hereof and supersedes all prior or
contemporaneous agreements, whether written or oral, with respect thereto.
k. Severability. If any term, provision, condition or covenant of this MOU is declared
or determined by any court or competent jurisdiction to be invalid, void, or
unenforceable, the remaining provisions of this Agreement shall not be affected
thereby and this MOU shall be read and constructed without the invalid, void, or
unenforceable provision(s).
I. Counterparts. This MOU may be executed in any number of counterparts, each
of which shall be an original, but all of which taken together shall constitute but
one and the same instrument, provided, however, that such counterparts shall
have been delivered to all PARTIES to this MOU.
IN WITNESS WHEREOF, the PARTIES hereto have caused this MOU to be
executed by their duly authorized representatives and affixed as of the date of signature
of the PARTIES:
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0 0
CITY OF RANCHO PALOS VERDES
Date: B
SusakBrooks
Mayor
ATTEST:
By:
Carla Morreale
City Clerk
APPROVED AS TO FORM:
City Attorney
By: ef,&&g21- /,d
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CITY OF PALOS VERDES ESTATES