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HomeMy WebLinkAbout05. Los Cerritos Channel TMDL AGENDA MEMO DATE: July 13, 2010 TO: Mayor and Members of the City Council FROM: Office of the City Manager Desi Alvarez, Deputy City Manager SUBJECT: LOS CERRITOS CHANNEL TOTAL MAXIMUM DAILY LOAD (TMDL) FOR METALS RECOMMENDATION That the Mayor and City Council: 1. Approve a Memorandum of Agreement (MOA) with the Los Angeles Gateway Region Integrated Regional Water Management Joint Powers Authority (JPA) for implementation of the Los Cerritos Channel Metals Total Maximum Daily Load (TMDL); and 2. Appropriate $30,000.00 from the General Fund. BACKGROUND In March 2010, the United States Environmental Protection Agency approved and issued the Los Cerritos Channel Total Maximum Daily Loads for Metals. This regulation sets limits on the amount of copper, lead and zinc that reaches the Los Cerritos Channel from urban runoff. Cities of Bellflower, Cerritos, Downey, Lakewood, Long Beach, Paramount, Signal Hill and Caltrans, as they all are the source of runoff to the Los Cerritos Channel. The Cities, Caltrans, and the JPA have developed an agreement to develop monitoring and implementation programs and special studies to address scientific and technical issues resulting from approval of the TMDL and its incorporation into the Municipal Separate Storm Sewer System (MS4) Permit. DISCUSSION Most of the City of Downey drains to the Rio Hondo, Los Angeles and San Gabriel Rivers however a 245 acre portion in southernmost Downey drains into the 17,617 acre Los Cerritos Channel watershed shown in Figure 1. According to a judicial consent decree between environmental organizations and the USEPA the levels of copper, lead and zinc in the runoff from this area is adversely impacting the beneficial uses of the Los Cerritos Channel. Compliance with the TMDL requires the Cities and Caltrans to monitor pollutant transport, develop an implementation plan to reduce pollutant loads, and conduct special studies to control the sources of these pollutants. CITY OF DOWNEY, CALIFORNIA Los Cerritos Channel Metals TMDL MOA July 13, 2010 Page 1 The Los Angeles Gateway Region Integrated Regional Water Management Joint Powers Authority has agreed to work with the seven impaired cities and Caltrans to conduct special studies and to develop a monitoring program and implementation plan to ensure compliance with the requirements of the TMDL. FISCAL IMPACT The estimated fiscal year 2010-11 MOA costs is estimated at no more than $30,000. This expense has not been previously budgeted and will require an appropriation from the General Fund. Future costs for compliance with the TMDL are undetermined at this time but will be shared by the seven cities and Caltrans based on a funding formula that consists of a flat administrative fee and an area share based on the prorated portion of land area in the watershed. Downey’s cost is estimated at 5.83% of the total cost. o Figure 1. Los Cerritos Channel Watershed MEMORANDUM OF AGREEMENT (MOA) BETWEEN THE LOS ANGELES GATEWAY REGION INTEGRATED REGIONAL WATER MANAGEMENT JOINT POWERS AUTHORITY AND THE CITY OF DOWNEY FOR THE ADMINISTRATION AND COST SHARING RESULTING FROM PREPARATION OF THE LOS CERRITOS CHANNEL METALS TOTAL MAXIMUM DAILY LOAD IMPLEMENTATION PLAN, MONITORING PROGRAM, AND SPECIAL STUDIES 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 Los Angeles Gateway Region Integrated Regional Water Management Joint Powers Authority (“Gateway Authority”), a California Joint Powers Authority, and the City of Downey, a California municipal corporation (“City”); hereinafter referred to as "Party" or "Parties": RECITALS WHEREAS, the mission of the Gateway Authority includes the equitable protection and management of water resources within its area; and WHEREAS, portions of the Gateway Authority cities of Bellflower, Cerritos, Downey, Lakewood, Long Beach, Paramount, and Signal Hill, are located within the Los Cerritos Channel Watershed; and WHEREAS, for the purposes of this Agreement, the term “Watershed Entities” shall include, to the extent that each enters into agreements substantially similar to this Agreement, the Gateway Authority cities of Bellflower, Cerritos, Downey, Lakewood, Long Beach, Paramount, and Signal Hill, as well as the California Department of Transportation (“Caltrans”), all of which manage or drain stormwater into at least a portion of the Los Cerritos Channel Watershed; and WHEREAS, the United States Environmental Protection Agency (“USEPA”) established the Los Cerritos Channel Metals Total Maximum Daily Load (“Metals TMDL”) on March 17, 2010, with the intent of protecting and improving water quality in the Los Cerritos Channel Watershed; and WHEREAS, this Metals TMDL will regulate certain discharges from NPDES Permit holders, requiring organization and cooperation among the regulated entities; and WHEREAS, the Parties recognize that the proposed Metals TMDL is not self-enforcing, but could potentially become legally enforceable through incorporation into future National Pollutant Discharge Elimination System (“NPDES”) Permits; and WHEREAS, the Cities of Long Beach and Signal Hill funded technical assistance and studies on behalf of the Watershed Entities that resulted in technical modifications of the TMDL; and WHEREAS, achieving the objectives of the Metals TMDL will be facilitated through preparation of an Implementation Plan (“IP”), a Monitoring Plan (“MP”), and specific Special Studies, by the Watershed Entities, to demonstrate compliance; and WHEREAS, preparation of these plans and studies requires administrative and professional coordination services that the Gateway Authority can provide; and WHEREAS, a Metals TMDL Technical Committee (“TC”), consisting of representatives of the Watershed Entities as well as stormwater experts, has been established to assist the Gateway Authority in coordinating the preparation and submission of the IP, MP, and any Special Studies to the California Regional Water Quality Control Board, Los Angeles Region on behalf of the Watershed Entities; and WHEREAS, a Metals TMDL Steering Committee (“SC”), consisting of representatives of the Watershed Entities and other persons approved by the Watershed Entities, has been established for the purpose of overseeing administrative and fiscal coordination in support of achieving the Metals TMDL objectives; and WHEREAS, the SC has determined that the approximately $250,000 spent by the Cities of Long Beach and Signal Hill in TMDL Development costs, along with the costs of preparing the IP, MP, and potential Special Studies and other related costs incurred by the Gateway Authority in administering this Agreement, should be shared by the Watershed Entities based on the cost allocation formula contained in Exhibit A; and WHEREAS, the Gateway Authority will endeavor to conclude substantially similar agreements with all of the Watershed Entities in order to minimize the cost to each Watershed Entity of complying with the Metals TMDL. 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 cooperatively support and undertake preparation of the IP, MP, and any Special Studies agreed to by the Parties. Section 3. Cooperation. The Parties shall fully cooperate with one another to achieve the purposes of this Agreement. Section 4. Voluntary Nature. The Parties voluntarily enter into this Agreement. Section 5. Term. This Agreement shall remain and continue in effect until completion of the IP, MP, and any Special Studies agreed to by the Parties, or December 31, 2022, whichever occurs first. Section 6. Role of the Gateway Authority. a)The Gateway Authority shall endeavor to enter into substantially and materially similar agreements with each of the Watershed Entities. b)Based on the directions of the TC, the Gateway Authority shall retain a consultant or consultants (“Consultant(s)”) to prepare the IP, MP, and any agreed upon Special Studies to demonstrate compliance with the Metals TMDL. The Consultant’s Scope of Work shall substantially conform to the Scope of Work set forth in Exhibit B to this Agreement. c)The Gateway Authority shall invoice the Watershed Entities a proportional amount to cover the costs incurred by the Gateway Authority in the performance of its duties under this Agreement. Such costs shall include, but not be limited to, the costs of: the consultant’s fees and costs for the preparation of the IP, MP, and Special Studies; Gateway Authority staff time; legal fees; audit expenses; and administering this Agreement (collectively, the “Agreement Costs”). The Gateway Authority shall invoice the Watershed Entities on an annual basis in an amount based on the Cost Share Formula in Exhibit A. Section 7. Obligation to Pay Proportional Costs. a)Upon receiving an invoice, the City shall pay the Gateway Authority its proportionate share of the Gateway Authority’s anticipated Agreement Costs in accordance with the Cost Share Formula set forth in Exhibit A. b)The Agreement shall become effective only if the Gateway Authority is able to execute substantially similar agreements with the cities of Bellflower, Lakewood and Long Beach. The City shall pay the adjusted proportional cost based on the Cost Share Formula set forth in Exhibit A. If the Gateway Authority is unable to execute materially similar agreements with any of the other Watershed Entities, the proportional costs set forth in Exhibit A shall be adjusted. c)Any over or underpayment of Agreement costs shall be credited or billed to the City during the following period or, if it occurs in the last year of this Agreement, it shall be returned upon termination of this Agreement. Section 8. Invoicing and Payment. a)Payment to the Gateway Authority is due within sixty (60) days of the invoice date. The first invoice should be expected within sixty (60) days of signing this agreement. Invoices for future Agreement Costs will be billed annually in March, starting in the year 2011. b)Any payment that is late shall be subject to interest from the due date. For any payment that is made from 1 to 30 days after the due date, the interest rate shall be equal to the Prime Rate in effect on the due date plus one (1) percent (e.g., if the Prime Rate is 5 percent, the interest rate for this Agreement will be 6 percent). For any payment made from 31 to 60 days after the due date, the interest rate shall be equal to the Prime Rate in effect on the due date plus five (5) percent. For payments made over 60 days after the due date, the interest rate shall be the Prime Rate in effect on the due date plus ten (10) percent. The rates shall, nevertheless, not exceed the maximum allowed by law. c)A Party will be delinquent if payment is not received within 120 days after first being invoiced by the Gateway Authority. The Gateway Authority will follow the procedure listed below, or such other procedure that the Steering Committee directs to effectuate payment: 1) verbally contact the official to whom notices should be addressed pursuant to Section 12 of this Agreement and 2) submit a formal letter from the Gateway Authority Executive Officer to the delinquent Watershed Entity. If payment is not received, the Gateway Authority may terminate the Agreement and recalculate the proportional cost for the remaining Watershed Entities. d)Any interest accrued on the funds collected per this Agreement shall be applied toward the Agreement Costs. The Gateway Authority shall annually submit a report to the SC on the amount of interest accrued by the Agreement account. Funds remaining at the end of the term of this Agreement shall be returned to the participating Watershed Entities in accordance with the Cost Share Formula in Exhibit A. Section 9. Independent Contractor. a)The Gateway Authority is, and shall at all times remain, a wholly independent contractor for performance of the obligations described in this Agreement. The Gateway Authority’s officers, officials, employees and agents shall at all times during the Term of this Agreement be under the exclusive control of the Gateway Authority. The Watershed Entities shall not control the conduct of the Gateway Authority or any of its officers, officials, employees or agents, except as set forth in this Agreement. The Gateway Authority, and its officers, officials, employees, and agents shall not be deemed to be employees of the Watershed Entities. b)The Gateway Authority is solely responsible for the payment of salaries, wages, other compensation, employment taxes, worker’s compensation, or similar taxes for its employees performing services hereunder. Section 10. Indemnification and Insurance. a)The Gateway Authority shall include an indemnification provision in the agreement with the Consultant requiring the Consultant to defend, indemnify and hold harmless the City and the Gateway Authority, and their officers, employees, and other representatives and agents, from and against any and all liabilities, actions, suits, proceedings, claims, demands, losses, costs, and expenses, including legal costs and attorney’s fees, for injury to or death of person (s), for damage to property (including property owned by the Gateway Authority or the City) resulting from negligent or intentional acts, errors and omissions committed by Consultant, its officers, employees, and other representatives and agents, arising out of or related to Consultant’s performance under this Agreement. b)The City shall defend, indemnify and hold harmless the Gateway Authority, its officers, employees, and other representatives and agents of the Gateway Authority, from and against any and all liabilities, actions, suits, proceedings, claims, demands, losses, costs, and expenses, including legal costs and attorney’s fees, for injury to or death of person (s), for damage to property (including property owned by the Gateway Authority) and for negligent or intentional acts, errors and omissions committed by City, its officers, employees, and other representatives and agents, arising out of or related to City’s performance under this Agreement, except for such loss as may be caused by Gateway Authority’s gross negligence or intentional acts or the gross negligence or intentional acts of its officers, employees, or other representatives and agents. c)Consultant’s Insurance. The Gateway Authority shall require the Consultant to provide proof of current Automotive and/or General Liability, Professional (Errors and Omissions) in sufficient coverage amounts, naming the Gateway Authority and each Watershed Entity as an additional insured. Consultant shall also be required to provide proof of current Workman’s Compensation insurance, when applicable. Section 11. Termination of Agreement. Either Party may terminate this Agreement in whole or in part, for any reason, or no reason, by giving the other Party thirty (30) days written notice thereof. The City shall be responsible for Agreement Costs to which the Gateway Authority became bound prior to the date of termination. Such Agreement Costs shall include the remaining fees of any consultant retained by the Gateway Authority prior to the date of termination. Gateway Authority shall notify in writing all Watershed Entities within fourteen (14) days of receiving written notice from any Watershed Entity that said entity intends to terminate this Agreement. Each Watershed City’s proportionate cost allocation shall be reapportioned thereafter in accordance with the Cost Share Formula in Exhibit A. Section 12. 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 Gateway Authority: Ms. Annette Hubbell Gateway Authority Executive Officer City of Downey 11111 Brookshire Ave. Downey, CA 90241 Gerald Caton To City of Downey: City Manager P.O. Box 7016 Downey, CA, 90241-7016 b)Separate Accounting and Auditing. The Gateway Authority agrees to establish a separate account to track revenues and expenses resulting from the Agreement. Annual financial statements and audits will be made available to the participating Parties, after review and approval by the Metals TMDL SC. c)Binding Effect. This Agreement shall be binding upon and inure to the benefit of each Party to this Agreement and its respective heirs, administrators, representatives and successors. d)Amendment. The terms and provisions of this Agreement may not be amended, modified or waived, except by a written instrument signed by both Parties. e)Waiver. Waiver by either Party 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, or a waiver of any subsequent breach 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 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)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 construed without the invalid, void, or unenforceable provision(s). i)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. 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. l)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. IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed on their behalf, respectively, as follows: DATE: _________ CITY OF DOWNEY ________________________ City Manager ATTEST: APPROVED AS TO FORM: ______________________________ ______________________________ City Clerk City Attorney DATE: __________ LOS ANGELES GATEWAY REGION INTEGRATED REGIONAL WATER MANAGEMENT JOINT POWERS AUTHORITY _____________________________ Gateway Authority Chair ATTEST: APPROVED AS TO FORM: _______________________________ ______________________________ Gateway Authority Secretary Gateway Authority General Counsel EXHIBIT A LOS CERRITOS CHANNEL METALS TMDL COST ALLOCATION $100,000 Agency Cost Share per Acres in Percent of Flat FeeArea ShareTotal 1 Agency NameWatershedWatershed Area Bellflower2,818.4316.00%$5,000$9,599$14,599 CalTrans497.742.83%$5,000$1,695$6,695 Cerritos57.600.33%$5,000$196$5,196 Downey245.001.39%$5,000$834$5,834 Lakewood4,802.7727.26%$5,000$16,358$21,358 Lon Beach7,535.3842.77%$5,000$25,665$30,665 g Paramount1,128.936.41%$5,000$3,845$8,845 Signal Hill530.753.01%$5,000$1,808$6,808 JPA MOA Total17,616.60100.00%$40,000$60,000$100,000 UNI Los Angeles Co.94.40 USEPA TMDL Total 17,711.00 1 CalTrans provided acreage values were subtracted from city acreage provided by USEPA. EXHIBIT B SCOPE OF WORK FOR DEVELOPMENT OF AN IMPLEMENTATION PLAN FOR AN EPA-ESTABLISHED METALS TMDL FOR THE LOS CERRITOS CHANNEL FRESHWATER WATERSHED 1. Prepare a detailed outline for Metals TMDL Implementation component to accompany the incorporation of the Metals TMDL in the reissued MS4 NPDES Permits, an Implementation Plan for the Los Cerritos Channel Metals TMDL 2. Prepare an Implementation Strategy, including a. An adaptive management approach, b. Tiered source control measures, and c. Tiered treatment control, if necessary 3. Prepare recommended Implementation Actions for a. Municipal Stormwater Permittees b. Caltrans c. Construction Stormwater Permittees d. Industrial Stormwater Permittees 4. Draft and Negotiate an Implementation Schedule acceptable to a. Municipal permittees b. The Los Angeles Regional Water Quality Control Board c. USEPA Region IX 5. Coordinate with Monitoring Consultant on Establishment of a. Ambient Monitoring Program b. TMDL Effectiveness Monitoring c. Special Studies, if any 6. Coordinate with Technical Committee and Steering Committee a. Attend meetings, as requested b. Submit draft materials to Technical Committee for review and approval c. Submit draft final materials to Steering Committee for review and approval before submittal to Regional Water Board 7. Coordinate with Regional Water Board staff a. Obtain an outline format for a Basin Plan Amendment b. Review Implementation Strategy with Regional Water Board staff c. Review Implementation Actions with Regional Water Board staff Note: The Technical Committee may modify details of Scope of Work, if necessary. LOS CERRITOS CHANNEL TMDL AMBIENT MONITORING OVERVIEW Ambient monitoring will establish baseline conditions for three major segments of the watershed and provide the necessary groundwork for effectiveness monitoring. The basic monitoring design used in the ambient monitoring effort will be the backbone of the effectiveness monitoring program. OUTLINE OF MONITORING PROGRAM Ambient Monitoring Program –Wet Season Wet season monitoring is intended to provide measurement of trace metal concentrations and loads at the three sites representing each of three major segments of the Los Cerritos Channel storm drain. The following subtasks will be required for the first year of the program. The first two tasks will apply only to the first year. 1.Identify three additional monitoring sites 2.Purchase and install equipment to obtain automated flow-composite samples. 3.Continue monitoring at the City of Long Beach Stearns Street monitoring site. 4.Monitoring at all sites will include: Continuous measurement of flow and rainfall Collection of flow-rated composite samples for six (6) storm events Analyses will include total hardness, TSS and trace metals. Trace metals will include dissolved and total fractions of copper, lead and zinc. Ambient Monitoring Program –Dry Season Dry weather flows will need to be monitored continuously throughout the summer dry season (May through September) and sampled to determine metals concentrations and loads. Alternative flow measurement techniques will be necessary during the summer dry season to provide continuous measurement of dry weather flow and more accurate baseline measurements of concentration and loads. Monitoring will be conducted at the same locations used for monitoring storm flows during the winter wet season. Subtasks for the dry weather ambient monitoring effort will include the following: 1.Determine flume sizes. Purchase the flumes, sidewalls (stop logs) for consolidating shallow flows, data loggers and high-precision pressure sensors for each site. 2.Install temporary flumes and electronic packages at the three TMDL monitoring sites and the Long Beach Mass Emission monitoring site during the summer. 3.Provide continuous measurements of summer dry weather flow at each site. 4 4.Collect grab samples for hardness, TSS and trace metals times during the summer dry 2 weather period and times during winter dry weather period. Reporting Annual draft and final report will be submitted after the first full year of monitoring. The dates for submission of these reports will be established once the program is initiated. * Notes: Details of scope may be modified by Technical Committee, if necessary.