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CC - Item 3E - Memorandum of Agreement for the Administration and Cost Sharing of teh Coordinated implementation Plan for the Los Angeles River and Tributary Metals Total Maximum Daily LoadROSEMEAD CITY COUNCIL STAFF REPORT TO: THE HONORABLE MAYOR AND CITY COUNCIL FROM: JEFF ALLRED, CITY MANAGER DATE: JULY 28, 2009 SUBJECT: MEMORANDUM OF AGREEMENT FOR THE ADMINISTRATION AND COST SHARING OF THE COORDINATED IMPLEMENTATION PLAN FOR THE LOS ANGELES RIVER AND TRIBUTARY METALS TOTAL MAXIMUM DAILY LOAD (TMDL) SUMMARY The Los Angeles River (LAR) and Tributaries Metals Total Maximum Daily Load (TMDL), adopted by the Los Angeles Regional Water Quality Control Board, requires that watershed cities and agencies (regulated entities) fund a coordinated implementation program. This report outlines the requirement for these efforts, their foreseeable costs, the proposed implementation through a cost sharing agreement, and fiscal management through the San Gabriel Valley Council of Governments (SGVCOG). Staff Recommendation Staff recommends that the City Council approve the implementation administration and cost sharing Memorandum of Agreement (MOA) with the SGVCOG and authorize the City Manager to execute the MOA. DISCUSSION Background Several segments of the LAR and its tributaries were identified on the 1998 and 2002 Clean Water Act (CWA) 303(d) list of impaired water bodies as impaired due to various metals. A TMDL establishes a maximum limit for a specific pollutant that can be discharged into a water body without exceeding water quality standards and impairing beneficial uses. Uses most likely to be impacted by metal loadings to the LAR include aquatic life and the water supply. Asra result of a 1999 consent decree between three environmental organizations (Heal 'the Bay, Natural Resources Defense Council (NRDC), and Santa Monica Baykeeper) and the US Environmental Protection Agency (EPA), the Regional Water Board was required to abide by a 13 year schedule to develop over 90 TMDLs. The consent decree required that the LAR and Tributaries Metals TMDL (LAR Metals TMDL) be completed by March 22, 2004. This deadline was extended by mutual consent of the plaintiffs and the EPA to December 2005. The EPA APPROVED FOR CITY COUNCIL AGENDA: ITEM NO. City Council Meeting July 28, 2009 Pace 2 of 3 approved the LAR Metals TMDL as an amendment to the regional Water Quality Control Plan for the Los Angeles Region (Basin Plan) on December 22, 2005 and the TMDL became effective January 11, 2006. Coordinated Implementation Plan (CIP) Requirements The Regional Water Board has divided the LAIR into six different jurisdictional groups or reaches. The City of Rosemead is located within Reach 2 and approximately 5.14 square miles are tributary to the Los Angeles River. Part of the Metals TMDL requirements is for the City of Rosemead to prepare and implement a Coordinated Implementation Plan (CIP) designed to reduce the amount of metal pollutants in the LAR and its tributaries, in addition to providing compliance with the TMDL load allocations. The Regional Water Board has established two deadline dates for local agencies to meet: • January 11, 2010- Draft submittal of CIP • July 11, 2010- Final submittal of CIP Several cities located in Reach 2 (including Rosemead) have joined together and established a Technical Committee to assist with the preparation of the CIP. This joint effort helps spread the costs and management of the CIP among several agencies. In May, the Technical Committee requested proposals from 2 firms - CDM and Tetra Tech - to assist with the preparation of the CIP. Only CDM chose to submit a proposal for this project. Due to time constraints involved in meeting the deadlines listed above, the Technical Committee has recommended that CDM complete the CIP. A scope of work is included in your packet for review (Attachment 1). The CIP will require administration, invoicing of local agencies, bill payment and auditing. The Technical Committee recommends that the San Gabriel Valley Council of Governments (SGVCOG) administer the CIP for participating cities. Each local agency must authorize the CIP Memorandum of Agreement (Attachment 2) with the SGVCOG in order for the watershed to meet the deadline dates. The Technical Committee surveyed the agencies to assess management support for the funding formula and the mandatory CIP, prior to drafting this MOA. All cities and agencies have responded in the affirmative to participate in this CMP. Approval of the attached MOA will allow the City to meet requirements as established in the LAR Metals TMDL. City Council Meeting July 28, 2009 Page 3 of 3 FINANCIAL REVIEW The estimated budget and cost breakdown for this agreement is shown in Attachment 3. The total cost for the CIP is estimated at $261,335. According to the cost allocation formula, the City of Rosemead's share is $7,704.19. Prepared by: /Lt= . - ~1 - Lucien J. Le Blanc. P.E. City Engineer Submitted by: Chris Marcarello Deputy Director of Public Works Attachments: (1) CDM Scope of Services- LAIR Metals TMDL Implementation Plan (2) CMP Memorandum of Agreement (3) Cost Allocation Formula MEMORANDUM OF AGREEMENT BETWEEN THE SAN GABRIEL VALLEY COUNCIL OF GOVERNMENTS AND THE CITY OF ROSEMEAD REGARDING THE ADMINISTRATION AND COST SHARING FOR THE DEVELOPMENT OF THE COORDINATED IMPLEMENTATION PLAN FOR THE LOS ANGELES RIVER AND TRIBUTARIES METALS TMDL (REACH 2) 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 San Gabriel Valley Council of Governments, a California joint powers authority ("SGVCOG"), and the City. of Rosemead , a California municipal corporation ("City"); (hereinafter "Party" or "Parties") with respect to the following: RECITALS WHEREAS, the mission of the SGVCOG includes environmental planning and providing technically sound science and analyses to its member cities and agencies; and WHEREAS, Seventeen of the SGVCOG's member cities are located within the Los Angeles River Reach 2 watershed and the SGVCOG has established effective working relationships with the adjacent Councils of Governments; and WHEREAS, the SGVCOG 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 Metals Total Maximum Daily Load ("TMDL" or "Los Angeles River Metals TMDL") in September of 2007, with the intent of improving water quality in the Los Angeles River and its tributaries; and WHEREAS, this TMDL regulates the discharge of runoff from thirty five cities tributary to Reach 2 of the Los Angeles River and CALTRANS, herein referred to collectively as the "Regulated Entities" or singularly a "Regulated Entity", requiring a high degree of organization and cooperation from the local watershed agencies; and WHEREAS, this TMDL requires the preparation of a Coordinated Implementation Plan ("CIP") by the Regulated Entities that is designed to reduce the amount of metals pollutants in the Los Angeles River and its tributaries; and WHEREAS, the County of Los Angeles and the City of Los Angeles will be independently preparing separate Implementation Plans; and WHEREAS, the Regulated Entities agree to prepare a draft by January 11, 2010 and a final CIP by July 11, 2010 and to adopt and provide the initial funding of this Agreement; and WHEREAS, the Regulated Entities have agreed to establish a Technical Committee to provide technical oversight for the development of the CIP, and WHEREAS, the participating Regulated Entities desire the SGVCOG to provide administrative services relating to the CIP, including contracting for the development of both the draft and final CIP and other related activities; and WHEREAS, the SGVCOG has agreed to provide such administrative services to the Regulated Entities to facilitate the successful implementation of the CIP; and WHEREAS, the Regulated Entities have agreed to share in fully funding the costs of the development of the CIP, including those costs incurred by the SGVCOG in administering this Agreement, based on the cost allocation formula contained in Exhibit A; and WHEREAS, the SGVCOG and the Regulated Entities agree to employ a consultant to prepare the CIP, and the Regulated Entities are willing to pay the consultant for its services through the SGVCOG; and WHEREAS, SGVCOG 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: 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 provide a mechanism whereby the Regulated Entities cooperatively fund the development of the CIP and provide funding to the SGVCOG such that the SGVCOG can administer the necessary professional services contracts to develop the CIP on behalf of the Regulated Entities. Section 3. Cooperation. The Parties shall fully cooperate with one another to attain the purposes of this Agreement. Section 4. Voluntary Nature. Individual Regulated Entities can request approval from the Regional Board to develop separate Implementation Plans. This Agreement is voluntarily entered into for the development of the CIP and is applicable to only those Regulated Entities that are signatory to this Agreement. Section 5. Term. The term of this Agreement shall remain and continue in effect until completion of the CIP, and acceptance of the CIP by the Regional Board. Section 6. Coordinated Implementation Plan. The Los Angeles River Metals TMDL requires the Regulated Entities to develop a CIP which shall include: implementation methods, an implementation schedule, proposed milestones and any applicable revisions to the TMDL effectiveness monitoring plan. The CIP that is developed under this Agreement is only applicable to those Regulated Entities that are a party to this Agreement and have fulfilled all terms of this Agreement. Section 7. Assessment for Proportional Costs of the CIP. The City agrees to provide funds to the SGVCOG based on the funding formula established in Exhibit A and the estimated development costs in Exhibit B, attached hereto and made a part of this Agreement by this reference. The SGVCOG will invoice the City upon the execution of this Agreement as set forth in Section 9 below, based on allocated CIP costs, which includes all administrative costs incurred by the SGVCOG in the performance of its duties under this Agreement. The SGVCOG administrative costs include compensation for staff time, audit expenses, and costs incurred in administrating agreements. Any overpayment or underpayment of the CIP costs shall be credited or billed to the City in the next invoice or it shall be reimbursed at the termination of this Agreement. Section 8. Role of the SGVCOG. The SGVCOG shall enter into substantially and materially similar agreements with each of the Regulated Entities wishing to participate in the CIP to effectuate the CIP, invoice and collect from the Regulated Entities the estimated amounts based on the cost allocation formula in Exhibit A. Section 9. Invoice and Payment. a) The SVCOG shall invoice each Regulated Entity for fifty (50) percent of the estimated cost of the preparation of the CIP on or about July 15, 2009. A second invoice for fifty (50) percent of the estimated cost shall be sent to the Regulated Entities by the SGVCOG on or about December 15, 2009. If necessary, a third invoice will be sent on or about July 15, 2010 for any adjustments or additional expenses incurred by the SGVCOG. b) Late Payment Penalty - Beginning as of October 15, 2009, 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 equal to the Prime Rate in effect when the payment first became due plus one percent for any payment that is made from l to 30 days after the due date. The Prime Rate in effect when the payment first became due plus five (5) percent shall apply for any payment that is made from 31 to 60 days after the due date. The Prime Rate in effect when the payment first became due plus ten (10) percent shall apply for any payment that is made more than 60 days after the due date. The rates shall, nevertheless, not exceed the maximum allowed by law. c) Delinquent Payments - A Regulated Entity's payment is considered to be delinquent 180 days after being invoiced by the SGVCOG. 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 or Entities, 2) submit a formal letter to the 3 delinquent Regulated Entity or Entities from the SGVCOG attorney, and 3) notify the Regional Board that the delinquent Regulated Entity or Entities are no longer a participating member of the CIP. If a Regulated Entity or Entities remain delinquent after the above procedures, then any delinquent amount(s) will be distributed in the following 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 and all references to the delequent Regulated Entity will be removed from the CIP. 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 SGVCOG and included with the annual invoices to the Regulated Entities. d) 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 development of the CIP. The SGVCOG shall report on an annual basis to the Technical Committee the amount of interest accrued by the CIP account(s). Section 10. Independent Contractor. a) The SGVCOG is and shall at all times remain a wholly independent contractor for performance of the obligations described in this Agreement. The SGVCOG officers, employees and agents performing such obligations shall at all times be under the SGVCOG's exclusive control. The Regulated Entities shall not have control over the conduct of the SGVCOG or any of its officers, employees or agents, except as set forth in this Agreement. The SGVCOG, 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 SGVCOG in connection with the performance of its obligations under this Agreement. The SGVCOG 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. c) The Regulated Entities will retain control of the consultant(s)' work product and the schedule for submitting the CIP to the Regional Board. The SGVCOG will use reasonable efforts to work with the Regulated Entities to ensure that the draft CIP is submitted by January 11, 2010 and the final CIP is submitted by July 11, 2010. However, the Regulated Entities recognize that the draft CIP is due by January 11, 2010 and that this deadline might not be met despite the best efforts of the SGVCOG and the Regulated Entities. Section 11. Indemnification. To the fullest extent permitted by law, the City and the SGVCOG 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 4 or threatened, attorney 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. The SGVCOG shall not have any duty to save, indemnify, defend, and hold harmless, and the Regulated Entities shall save, indemnify, defend, and hold harmless the SGVCOG from any Regional Board Notice of Violations or third-party litigation resulting from failure of the Regulated Entities to meet the compliance deadlines in the Los Angeles River Metals TMDL for submission of the draft and final CIP. 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 shall be responsible for the allocated costs of CIP activities incurred up to the date of the termination. SGVCOG 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. 5 Section 13. 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 SGVCOG Nick Conway San Gabriel Valley Council of Governments 3452 E. Foothill Blvd, Suite 910 Pasadena, CA 91107 To City of Rosemead Jeffry Allred City Manager 8838 E. Valley Blvd Rosemead, Ca. 91770 b) Separate Accounting and Auditing. The SGVCOG agrees to establish a separate account to track the revenues from the Regulated Entities and the expenses from of the CIP. 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. 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. 6 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 nut be affected thereby and this Agreement shall be read and constructed without the invalid, void, or unenforceable provision(s). j) Counterpart s. 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. 1) Procurement. All participating Regulated Entities have reviewed the procurement procedures used in the selection of the consultant(s) for consistency with their individual procurement practices. m) Agency Authorization. Each of the persons signing below on behalf of a Party represents and warrants that he or she is authorized to sign this Agreement on behalf of such Party. n) Contact Person. The municipal staff contact person for this agreement shall be Chris Marcarello Name ppputy Public Works Director Title IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed on their behalf, respectively, as follows: DATE: CITY OF ROSEMEAD City Manager ATTEST: City Clerk, Gloria Molleda APPROVED AS TO FORM: City Attorney , Joseph Montes DATE: ATTEST: SAN GABRIEL VALLEY COUNCIL OF GOVERNMENTS Nicholas T. 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