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HomeMy WebLinkAbout2013 CON CV Ventures - Duck Pond Landfill Monitoring WellsMEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF NATIONAL CITY AND CV VENTURES, LIMITED LIABILITY CORPORATION THIS MEMORANDUM OF UNDERSTANDING is made and entered into this of May, 2013, by and among the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and CV VENTURES, LLC, a California Limited Liability Corporation ("CV VENTURES") (collectively, the "PARTIES") pursuant to the following facts and circumstances. WHEREAS, the CITY owns property known as the Duck Pond Landfill (the "Landfill") located on the Southeast corner of 30th Street and National City Boulevard in National City, CA. WHEREAS, the County of San Diego Local Enforcement Agency (the "LEA") has determined that the CITY is responsible for gas monitoring on the Landfill and the California Regional Water Quality Control Board (the "RWQCB") has issued an Addendum to Cleanup and Abatement Order Nos. 95-96 which requires the CITY to perform inspections and water quality monitoring to determine potential impacts to waters of the State. WHEREAS, the CITY may be subject to penalties from the LEA and the RWQCB if it fails to properly monitor the Landfill and submit reports. WHEREAS, the Landfill contains three (3) gas monitoring wells (the "Wells") known as MW-1, MW-6, and MW-7. WHEREAS, CV VENTURES has the knowledge, experience, and ability, through sub- contractor or otherwise, to provide monitoring services and reports. WHEREAS, the CITY and CV VENTURES desire to enter into an agreement concerning the gas monitoring of the Wells. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: 1. Scope of Services. CV VENTURES shall provide monitoring and reporting as set forth below: a) CV VENTURES shall conduct monthly and/or quarterly gas monitoring of the Wells, as directed by the CITY by sampling the probes in the Wells. Said monitoring shall be conducted in accordance with the law and all industry standards. b) CV VENTURES shall submit the results of the monitoring to the LEA on a monthly and/or quarterly basis, as directed by the CITY, beginning in May, 2013. CV VENTURES shall provide a copy of the result report to the CITY no less than three (3) CITY business days prior to releasing the reports to the LEA. y Well Monitoring MOU 1 City of National City and May 2013 CV Ventures, LLC In said report, CV VENTURES will notify the CITY and LEA of any required maintenance and/or repairs to the Wells. Should the CITY and CV VENTURES mutually agree to have CV VENTURES perform said maintenance and/or repairs, this cost shall be reimbursed to CV VENTURES, above -and -beyond the monitoring costs contemplated under Section 3(b). c) CV VENTURES and/or its consultants/contractors shall use proper care not to damage City property, the Wells, or any part thereof, while monitoring the wells. CV VENTURES shall be responsible for any damage to City property, the Wells, or any part thereof, caused by the negligence or willful misconduct of CV VENTURES and/or its consultants/contractors. 2. Length of Agreement. The term of this agreement shall be for 1 year commencing on the effective date of this Agreement. This Agreement may be extended for three, one-year terms by mutual agreement of both parties. Any extension of this Agreement shall be made in writing signed by both parties. 3. Payment. a) CV VENTURES shall submit invoices covering actual work performed and expenses incurred to the CITY on a monthly and/or quarterly basis. Invoices shall be paid within thirty (30) days of receipt. b) The monthly cost for services, assuming quarterly monitoring, is estimated to be $750 ($250 per well), but in no case shall the amount be more than $900 without prior written authorization from the CITY, which shall not be unreasonably withheld, particularly in the event that monthly monitoring is required. 4. Acceptability of Work. The CITY shall decide any and all questions which may arise as to the quality or acceptability of the services performed and the manner of performance, the acceptable completion of this Agreement, and the amount of compensation due. In the event that CV VENTURES and the CITY cannot agree to the quality or acceptability of the work, the manner of performance and/or the compensation payable to CV VENTURES in this Agreement, the CITY or CV VENTURES shall give to the other written notice. Within ten (10) business days, CV VENTURES and the CITY shall each prepare a report which supports their position and file the same with the other party. The CITY shall, with reasonable diligence, determine the quality or acceptability of the work, the manner of performance and/or the compensation payable to CV VENTURES. Well Monitoring MOU 2 City of National City and May 2013 CV Ventures, LLC 5. Termination. a) This Agreement may be terminated with or without cause by the CITY or CV VENTURES. Termination without cause shall be effective only upon 60-day's written notice to CV VENTURES or the CITY. During said 60- day period CV VENTURES shall perform all services in accordance with this Agreement and be compensated accordingly by the CITY. b) This Agreement may also be terminated immediately by the CITY or CV VENTURES for cause in the event of a material breach of this Agreement, misrepresentation by CV VENTURES or the CITY in connection with the formation of this Agreement or the performance of services, or the failure to perform services as directed by the CITY that are contemplated by this Agreement. c) Termination with or without cause shall be effected by delivery of written Notice of Termination to CV VENTURES or the CITY as provided for herein. d) In the event of termination, all finished or unfinished Memoranda Reports, Maps, Drawings, Plans, Specifications and other documents prepared by CV VENTURES in accordance with this Agreement, whether paper or electronic, shall immediately become the property of and be delivered to the CITY, and CV VENTURES shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of the Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused the CITY by CV VENTURES'S breach, if any. Thereafter, ownership of said written material shall vest in the CITY all rights set forth in Section 6. e) From the effective date of the Notice of Termination, all responsibilities pertaining to the Wells shall revert back to the CITY. f) The CITY further reserves the right to immediately terminate this Agreement upon: (1) the filing of a petition in bankruptcy affecting CV VENTURES; (2) a reorganization of CV VENTURES for the benefit of creditors; or (3) a business reorganization, change in business name or change in business status of CV VENTURES. 6. Notices. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered; or sent by overnight mail (Federal Express or the like); or sent by registered or certified mail, postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile or fax; and shall be Well Monitoring MOU 3 City of National City and May 2013 CV Ventures, LLC deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice, (ii) if sent by overnight mail, the business day following its deposit in such overnight mail facility, (iii) if mailed by registered, certified or ordinary mail, five (5) days (ten (10) days if the address is outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or other like facility regularly maintained by the United States Postal Service, (iv) if given by telegraph or cable, when delivered to the telegraph company with charges prepaid, or (v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand, direction or other communication delivered or sent as specified above shall be directed to the following persons: To CITY: Barbara Tipton Project Officer / Environmental Compliance Officer Engineering Department City of National City 1243 National City Boulevard National City, CA 91950-4301 To CV VENTURES: David Wick President of Managing Member CV Ventures, LLC 5440 Morehouse Drive, Suite 4000 San Diego, CA 92124 Notice of change of address shall be given by written notice in the manner specified in this Section. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice, demand, request or communication sent. Any notice, request, demand, direction or other communication sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty-eight (48) hours by letter mailed or delivered as specified in this Section. 7. Indemnification and Holdharmless. CV VENTURES agrees to defend, indemnify and hold harmless the CITY, its officers and employees, against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suites, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of CV VENTURES'S performance under this Agreement; provided, however, that this indemnification and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the CITY, its agents, officers, or employees. The indemnity, defense, and hold harmless obligations contained herein shall survive the termination of this Agreement for any alleged or actual omission, act, or negligence under this Agreement that occurred during the term of this Agreement. Well Monitoring MOU 4 City of National City and May 2013 CV Ventures, LLC • IN WITNESS WHEREOF, this Memorandum of Understanding is executed by CITY and by CV VENTURES on the date and year first above written. CITY OF NATIONAL CITY CV VENTURES, LLC (Signatures of two corporate officers required) Leslie Deese, City Manager ROVED AS TO FORM: C !4 dia Gac' . Silva City Attorne By: (Name (Print) By: (Name) (Print) Well Monitoring MOU 5 City of National City and May 2013 CV Ventures, LLC CITY OF NATIONAL CITY Office of the City Clerk 1243 National City Blvd., National City, California 91950 619-336-4228 phone / 619-336-4229 fax Michael R. Dalla, CMC - City Clerk CV VENTURES Duck Pond Landfill Gas Monitoring of Wells Lynn Cole (Engineering) Forwarded Copy of Memorandum of Understanding to CV Ventures