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HomeMy WebLinkAboutC-2789-2o C 2�g�1 MEMORANDUM OF AGREEMENT BETWEEN THE GATEWAY CITIES COUNCIL OF GOVERNMENTS AND THE CITY OF ARCADIA REGARDING THE ADMINISTRATION AND COST SHARING OF THE COORDINATED MONITORING PLAN FOR THE LOS ANGELES RIVER AND TRIBUTARIES BACTERIA TMDL This Memorandum of Agreement ( "Agreement ") is made and entered into as of the date of the last signature set forth below by and between the Gateway Cities Council of Governments, a California joint powers authority ( "GCCOG "), and the City of Arcadia a California municipal corporation ( "City"); (hereinafter "Party" or "Parties ") with respect to the following: RECITALS WHEREAS, the mission of the GCCOG includes environmental planning and providing technically sound science and analyses to its member cities and agencies; and WHEREAS, eighteen of the GCCOG's member cities are located within the Los Angeles River watershed and the GCCOG has established effective working relationships with the adjacent Councils of Governments; and WHEREAS, the GCCOG has previously entered into interagency agreements, successfully partnering with various cities, SCAG, and CALTRANS to undertake projects and studies of regional significance; and WHEREAS, the Regional Water Quality Control Board, Los Angeles Region ( "Regional Board ") adopted the Los Angeles River and Tributaries Bacteria Total Maximum Daily Load (TMDL) in July of 2010, with the intent of improving water quality in the Los Angeles River and its tributaries; and WHEREAS, the Parties recognize that the TMDL is not self - enforcing, but is legally enforceable once incorporated into the National Pollutant Discharge Elimination System Permit for Waste Discharge Requirements for Municipal Storm Water and Urban Runoff Discharges; and WHEREAS, this TMDL regulates the discharge of runoff from, forty -two cities tributary to the Los Angeles River and the unincorporated areas of Los Angeles County and CALTRANS, herein referred to as collectively the "Regulated Entities" or singularly a "Regulated Entity ", requiring a high degree of organization and cooperation from the local watershed agencies; and 1 WHEREAS, this TMDL requires the preparation of a Coordinated Monitoring Plan ( "CMP ") and ongoing monitoring by the Regulated Entities once the CMP is approved by the Regional Board; and WHEREAS, the Regulated Entities are also responsible for preparing Load Reduction Strategies (LRS) to reduce the amount of bacteria being discharged into the Los Angeles River and Tributaries and the Regulated Entities will retain responsibility for the preparation of the LRS, but will benefit from the monitoring information generated by the CMP, and WHEREAS, a Los Angeles River Bacteria TMDL Technical Committee, consisting of representatives from the Regulated Entities, has been established with the purpose of preparing and submitting the CMP to the Regional Board; and WHEREAS, the Regulated Entities agree to prepare a CMP by March 23, 2013, the adoption and initial funding of this Agreement will be by the Regulated Entities; and WHEREAS, the Regulated Entities agree to implement the CMP upon approval by the Regional Board; and WHEREAS, the CMP requires administrative services that the Regulated Entities desire the GCCOG to coordinate, including contracting for the development of both the draft and final CMP and other related activities; and WHEREAS, the GCCOG has agreed to provide administrative services to the Regulated Entities to facilitate the successful implementation of the CMP; and WHEREAS, the Regulated Entities have agreed to share in fully funding the costs of the CMP, including those costs incurred by the GCCOG in administering this Agreement, based on the cost allocation formula contained in Exhibit A and the estimated implementation plan in Exhibit B of this Agreement; and WHEREAS, the GCCOG and the Regulated Entities agree to employ consultants as needed to prepare the CMP, and the Regulated Entities are willing to pay the consultants for their services through the GCCOG; and WHEREAS, from time to time, special studies will need to be conducted in support of the CMP and to evaluate Load Reduction Strategies; and WHEREAS, GCCOG will execute similar cost - sharing agreements with all other Regulated Entities before this agreement becomes enforceable, unless stated otherwise elsewhere in this Agreement. NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth herein, the Parties do hereby agree as follows: 2 Section 1. Recitals. The recitals set forth above are fully incorporated as part of this Agreement. Section 2. Purpose. The purpose of this Agreement is to cooperatively fund the preparation of and implementation of the CMP. Section 3. Cooperation. The Parties shall fully cooperate with one another to attain the purposes of this Agreement. Section 4. Voluntaa Nature. This Agreement is voluntarily entered into for the implementation of the CMP. Section 5. Term. The term of this Agreement shall remain and continue in effect until the scheduled final dry- weather TMDL deadline of March 23, 2028, Section 6. Coordinated Monitoring Plan. The Los Angeles River Bacteria TMDL CMP consists of: collection of samples, laboratory analysis, characterization, special studies, reporting, and other regulatory requirements. Section 7. Assessment for Proportional Costs of the CMP. The City of Arcadia agrees to provide funds to the GCCOG in the amount shown in Exhibit A and the estimated implementation costs in Exhibit B attached hereto and made a part of this Agreement by this reference. The GCCOG will invoice the City upon the execution of this Agreement, based on allocated CMP costs, which includes all administrative costs incurred by the GCCOG in the performance of its duties under this Agreement. The GCCOG administrative costs include compensation for staff time, audit expenses, and costs incurred in administrating agreements. Any overpayment or underpayment of the CMP costs shall be credited or billed to the City. Costs are subject to change depending upon the number of participating Regulated Entities and recommendations of the Technical Committee based upon new or modified requirements of the Regional Board. Section 8. Role of the GCCOG. The GCCOG shall enter into substantially and materially similar agreement with each of the Regulated Entities to effectuate the CMP, invoice and collect from the Regulated Entities the estimated amounts identified in Exhibit A. Section 9. Invoice and Payment. a) The GCCOG shall invoice each Regulated Entity not later than July 30, 2013. b) Delinquent Payments — A Regulated Entity's payment is considered to be delinquent 60 days after being invoiced by the GCCOG. The following procedure may be implemented to attain payments from the delinquent Regulated Entity or Entities per instructions from the Technical Committee: 1) verbally contact/meet with the manager from the delinquent Regulated Entity 3 or Entities, 2) submit a formal letter to the delinquent Regulated Entity or Entities from the GCCOG attorney, and 3) notify the Regional Board that the delinquent Regulated Entity or Entities are no longer a participating member of the CMP. If a Regulated Entity or Entities remain delinquent after the above procedures, then any delinquent amount(s) will be distributed in the following year's invoice amongst all remaining Regulated Entities proportionate to each Entity's area as it relates to the overall remaining total Regulated Entities area, excluding the delinquent Regulated Entity or Entities. The Technical Committee will revise Exhibit A to show the recalculated costs for each participating Regulated Entity; these revised exhibits will be sent to the GCCOG and included with the annual invoices to the Regulated Entities. c) Interest Accrual — Any interest accrued on the funds collected per this Agreement during the term of this Agreement shall be redeposited into the appropriate account and used for implementation of the CMP. The GCCOG shall report on an annual basis to the Technical Committee the amount of interest accrued by the CMP account(s). d) Excess Funds — Any collected funds not spent in any annual period shall remain in the appropriate account and used for implementation of the CMP or special studies as directed by the Technical Committee. Section 10. Independent Contractor. a) The GCCOG is and shall at all times remain a wholly independent contractor for performance of the obligations described in this Agreement. The GCCOG officers, employees and agents performing such obligations shall at all times be under the GCCOG's exclusive control. The Regulated Entities shall not have control over the conduct of the GCCOG or any of its officers, employees or agents, except as set forth in this Agreement. The GCCOG, and its officers, employees, or agents are not and shall not be deemed to be employees of the Regulated Entities. b) No employee benefits shall be available to the GCCOG in connection with the performance of its obligations under this Agreement. The GCCOG is solely responsible for the payment of salaries, wages, other compensation, employment taxes, worker's compensation, or similar taxes for its employees for performing obligations hereunder. Section 11. Indemnification. To the fullest extent permitted by law, the City of Arcadia and the GCCOG agree to save, indemnify, defend, and hold harmless each other from any and all liability, claims, suits, actions, arbitration proceedings, administrative proceedings, and regulatory proceedings, losses, expenses, or any injury or damage of any kind whatsoever, whether actual, alleged or threatened, attorney 4 fees, court costs, and any other costs of any nature without restriction incurred in relation to, as a consequence of, or arising out of, the performance of this Agreement, and attributable to the fault of the other. Following a determination of the percentage of fault and or liability by agreement between the Parties or a court of competent jurisdiction, the Party responsible for liability to the other will indemnify the other Party to this Agreement for the percentage of liability determined. Section 12. Termination of Agreement. Either Party may terminate this Agreement for any reason, in whole or part, by giving the other Party thirty (30) days written notice thereof. The City of Arcadia shall be responsible for the allocated costs of CMP activities incurred up to the date of the termination. GCCOG shall notify in writing all Regulated Entities within fourteen (14) days of receiving written notice from any Regulated Entity that intends to terminate this Agreement. The remaining Regulated Entities shall be responsible for increasing their cost contribution proportionally based upon the land area as shown in Exhibit A. Section 15. Miscellaneous. a) Notices. All notices which any Party is required or desires to give hereunder shall be in writing and shall be deemed given when delivered personally or three (3) days after mailing by registered or certified mail (return receipt requested) to the following address or as such other addresses as the Parties may from time to time designate by written notice in the aforesaid manner: To GCCOG: Richard Powers Executive Director 16401 Paramount Boulevard Paramount, California 90723 To City of Arcadia Dominic Lazzaretto City Manager 240 W. Huntington Dr Arcadia, CA 91066 5 b) Separate AccountingL and Auditing. The GCCOG agrees to establish a separate account to track the revenues from the Regulated Entities and the expenses from of the CMP. Quarterly financial statements and the annual audit will be made available to all of the participating Regulated Entities. c) Binding Effect. This Agreement shall be binding upon and inure to the benefit of each Party to this Agreement and their respective heirs, administrators, representatives, successors and assigns. d) Amendment. The terms and provisions of this Agreement may not be amended, modified or waived, except by an instrument in writing signed by the Parties. e) Waiver. Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party to any breach of the provisions of this Agreement shall not constitute a waiver of any other provision, nor a waiver of any subsequent breach or violation of any provision of this Agreement. f) Law to Govern; Venue. This Agreement 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. g) No Presumption in Drafting. The Parties to this Agreement agree that the general rule that an Agreement is to be interpreted against the Party drafting it, or causing it to be prepared shall not apply. h) Entire Agreement. This Agreement 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. i) Severability. If any term, provision, condition or covenant of this Agreement is declared or determined by any court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions of this Agreement shall not be affected thereby and this Agreement shall be read and constructed without the invalid, void, or unenforceable provision(s). j) Counterparts. This Agreement 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 both Parties to this Agreement. k) Legal Representation. All Parties have been represented by counsel in the preparation and negotiation of this Agreement. Accordingly, this Agreement shall be construed according to its fair language. G 1) Agency Authorization. that Each of the he or she seuto authorized sign this behalf of a Party on behalf represents and warrants of such Party. IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed on their behalf, respectively, as follows: DATE: ATTEST: Cit Clerk APPROVED AS TO FORM: City Attorney Stephen P. Deitsch CITY OF ARCADIA City Manager Dominic Lazzaretto GATEWAY CITIES DATE: Z (= COUNCIL OF GOVERNMENTS 7 Gene Daniels, President ATTEST: Richard Powers, Secretary