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HomeMy WebLinkAbout12. Approve Agreement w-LAGWMA for Cost Sharing Installation Monitoring Equip to Harbor Toxic Pollutants TMDLItem 1140. APPROVED BY CITY MANAGER TO: MAYOR ASHTON AND MEMBERS OF THE CITY COUNCIL • ;• OFFICE OF DELFINO DIRECTOR OF PUBLIC WORKS DATE: ;1 2018 • - • ., • , TVA , , • • i' •' • That the City Council: 1. Approve the Agreement with the Los Angeles Gateway Region Integrated Regional Water Management Joint Powers Authority for cost sharing for the installation of monitoring equipment and monitoring pursuant to the Harbor Toxic Pollutants TMDL; and 2. Authorize the Mayor to execute the Agreement in a form acceptable to the City Attorney; and 3. Authorize City Manager to execute any future amendments to the A greement deemed necessary. • r On May 5, 2011, the Los Angeles Regional Water Quality Control Board adopted the Harbor Toxics Total Maximum Daily Loads (TMDL) limits for pollutants entering the Greater Harbor water body. The Harbor Toxics TMDL became effective on March 23, 2012. Subsequently, this TMDL has been incorporated into the National Pollutant Discharge Elimination System (NPDES) Municipal Separate Storm Sewer System (MS4) Permit and is enforceable through the Federal Clean Water Act. The Harbor Toxics TMDL established Load Allocations and Waste Load Allocations (which are effectively numerical discharge limits) for a wide variety of pollutants, including metals such as copper, lead, and zinc, and other organic compounds, such as dichlorodiphenyltrichloroethane (DDT) and polychlorinated biphenyl (PCB), generally referred to as "toxic." Agencies impacted by this TMDL are divided into three groups based on geographical drainage areas: 1) Those cities draining to the Dominguez Channel, 2) Those agencies with areas draining directly into the Greater Harbor which includes the Los Cerritos Channel watershed, Palos Verdes Peninsula watershed and Los Angeles River Estuary, and Agreement For Cost Sharing for Water QualityMonitoring for Harbor Toxic Pollutants TMDL July 10, 2018 3) Those agencies draining to the Los Angeles and San Gabriel Rivers. TMDL monitoring requirements differ for each of the above groups.- For agencies tributary to the Los Angeles and San Gabriel Rivers (such as Downey), monitoring for the toxic pollutants must be conducted. The Harbor Toxics TMDL requires monitoring of both dry and wet weather runoff in the Los Angeles and San Gabriel River. Due to tidal interferences,_a third station is also required within the Coyote Creek watershed. The City previously entered into an Agreement with the Los Angeles Gateway Region Integrated Regional Water Management Joint Powers Authority (GWMA) for cost sharing amongst GWMA member agencies for the installation of the required monitoring stations and the associated monitoring and reporting of the results. The term of this Agreement ended on June 30, 2018. A new Agreement (Attached) has been prepared to allow for continuation of the required monitoring. The new Agreement has a five-year term beginning July 1, 2018 and ending on June 30,-2023 and allows for participation by both GWMA member agencies as well as non- members. Participating agencies are assessed costs based on the cost sharing formulas, as detailed in the attached Agreement. This Agreement encompasses three watersheds, but only the Los Angeles River and San Gabriel River Watershed portions are applicable to the City of Downey. The City's share of the cost under the proposed Agreement is approximately $2,000 annually with a total cost to the City of approximately $10,000 over the term of the Agreement. There are sufficient funds in the FY 2018/2019 storm water operating budget to cover the City's costs in the first year of the Agreement while subsequent budgets will cover the City's annual dues in future years. Attachments: Agreement with GWMA 2 05/14/18 AGREEMENT BETWEEN THE LOS ANGELES GATEWAY REGION INTEGRATED REGIONAL WATER MANAGEMENT JOINT POWERS AUTHORITY AND THE CITY OF DOWNEY FOR COST SHARING FOR THE INSTALLATION OF MONITORING EQUIPMENT AND MONITORING PURSUANT TO THE HARBOR TOXIC POLLUTANTS TMDL This Agreement is made and entered into as of July 1, 2018, by and between the Los Angeles Gateway Region Integrated Regional Water Management Joint Powers Authority ("GWMA"), a California Joint Powers Authority, and the City of Downey, (the "Permittee"). The Permittee and the GWMA are collectively referred to as the "Parties"; RECITALS WHEREAS, the mission of the GWMA includes the equitable protection and management of water resources within its area; WHEREAS, for the purposes of this Agreement, the term "MS4 Permittees" shall mean those public agencies that are co -permittees to a National Pollutant Discharge Elimination System Municipal Separate Storm Sewer System Permit Order ("MS4 Permit") issued by the Los Angeles Regional Water Quality Control Board, WHEREAS, the United States Environmental Protection Agency established the Total Maximum Daily Loads ("TMDL") for Toxic Pollutants on March 23, 2012, with the intent of protecting and improving water quality in the Dominguez Channel and the Greater Los Angeles and Long Beach Harbor Waters ("Harbor Toxic Pollutants TMDL"), WHEREAS, the Harbor Toxic Pollutants TMDL regulates certain discharges from National Pollutant Discharge Elimination System (°NPDES") permit holders, requiring organization and cooperation among the MS4 Permittees; WHEREAS, the Permittee manages, drains or conveys storm water into at least a portion of the Los Angeles River including the estuary or Coyote Creek or the San Gabriel River including the estuary, WHEREAS, various MS4 Permittees desire to facilitate the achievement of the objectives of the Harbor Toxic Pollutants TMDL by installing one monitoring station in the Los Angeles River at Wardlow Road, one monitoring station in the San Gabriel River near Spring Street, and one monitoring station in the Coyote Creek, also near Spring Street and conducting monitoring at said monitoring stations (collectively "Monitoring Stations") to ensure consistency with other regional monitoring programs and usability with other TMDL related studies; WHEREAS, installation of the Monitoring Stations and future monitoring requires administrative coordination for the various MS4 Permittees that the GWMA can and is willing to provide; Page 1 of 11 12664/0001/1816452-2 05/14/18 WHEREAS, the members of the GWMA are the Cities of Artesia, Avalon, Bell, Bell Gardens, Bellflower, Cerritos, Commerce, Cudahy, Downey, Hawaiian Gardens, Huntington Park, La Mirada, Lakewood, Long Beach, Lynwood, Maywood, Montebello, Norwalk, Paramount, Pico Rivera, Santa Fe Springs, Signal Hill, South Gate, Vernon, Whittier, Water Replenishment District, Central Basin Municipal Water District and the Long Beach Water Department ("GWMA Members"); WHEREAS, because of the financial savings and benefits resulting from this cost-sharing arrangement, other MS4 Permittees that are not GWMA Members may request to participate in the cost sharing of the Monitoring Costs for the installation of the Monitoring Stations and the costs of monitoring conducted at the Monitoring Stations (collectively "Monitoring Costs"); WHEREAS, the GWMA Board of Directors authorized the GWMA to enter into individual separate agreements with such individual MS4 Permittees (which shall not have voting rights in any group relating to the GWMA Members) for purposes of only cost sharing in the Monitoring Costs; WHEREAS, because GWMA Members already pay annual membership fees that pay for GWMA administrative costs, GWMA Members that participate in the cost share for the Monitoring Costs shall pay a three percent (3%) administrative fee on each payment to cover various administrative costs; WHEREAS, MS4 Permittees that are not GWMA Members that participate in the cost share for the Monitoring Costs shall pay an eight and seventy-six hundredths percent (8.76%) administrative fee on each payment to cover various administrative costs. Five percent (5%) of such amount represents the estimated direct, actual costs of the GWMA's administrative expenses and three and seventy-six hundredths percent (3.76%) represents the estimated indirect, overhead costs of the GWMA's administrative expenses; WHEREAS, certain private NPDES permit holders that are subject to the Harbor Toxic Pollutants TMDL have also expressed interest in participating in the cost share for the Monitoring Costs and procuring the monitoring data generated pursuant to this Agreement in order to satisfy their own permit obligations; WHEREAS, it is currently unknown how many MS4 Permittees and private NPDES permit holders will ultimately participate in the cost sharing of the Monitoring Costs; WHEREAS, depending on how many MS4 Permittees and private NPDES permit holders ultimately participate in the cost sharing for the Monitoring Costs, each participating Permittee's annual cost share amount will be adjusted and the GWMA will notify each participating Permittee of its adjusted annual cost share amount in writing; WHEREAS, the Permittee desires to share in the Monitoring Costs; Page 2 of 11 05/14/18 WHEREAS, the Parties have determined that authorizing GWMA to hire consultants as necessary to install and maintain the Monitoring Stations and conduct the monitoring required by the Harbor Toxic Pollutants TMDL will be beneficial to the Parties, WHEREAS, the Permittee agrees to pay: (a) its proportional share of the Monitoring Costs to be incurred by the GWMA in accordance with the Cost Sharing Formula reflected in Exhibit "A"; and (b) applicable administrative fees to cover administrative costs; and WHEREAS, theroleof the GWMA is to: (1) invoice and collect funds from the Permittee to cover its portion of the Monitoring Costs; and (2) hire and retain consultants- to install Monitoring Stations and conduct monitoring at the Monitoring Stations. NOW, THEREFORE, in 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 for the Permittee to cost share in the Monitoring Costs. 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. Binding Effect. This Agreement shalt become binding on GWMA and the Permittee. Section 6. Term. This Agreement shall commence on Judy 1, 2018 and shall expire on June 30, 2023, unless terminated earlier pursuant to this Agreement. Section 7. Role of the GWMA. (a) The GWMA shall invoice and collect funds from the Permittee to cover the Monitoring Costs; and (b) The GWMA shall administer the consultants' contracts for the Monitoring Costs. Provided the Permittee has paid all outstanding invoices to the GWMA to cover the Monitoring_ Costs and administrative costs, the GWMA will provide the Permittee with the monitoring data collected from the Monitoring Stations. (c) At the request of an MS4 Permittee that participates in the cost sharing for the Monitoring Costs, the GWMA is authorized and may negotiate, enter into agreements with, and collect funds from general and individual NPDES permit holders Page 3 of 11 12664/0001/1816452-2 05/14/18 that are not MS4 Permittees for cost-sharing the Monitoring Costs. Section 8. Financial Terms. (a) Initial Payment Amount. The Permittee shall pay no more than One Thousand Nine Hundred Fifty -Six Dollars and Eighty -Eight Cents ($1,956.88) for the initial payment ("Initial Payment Amount"), for the 2018-2019 fiscal year to the GWMA for managing the installation of the Monitoring Stations and the monitoring data collected at the Monitoring Stations for the 2018-2019 fiscal year. This Initial Payment Amount includes: (1) the Permittee's cost share amount ("Cost Share Amount") identified in Exhibit "A", attached hereto and incorporated herein; and (2) the Administrative Costs Payment Amount identified in subsection (c) of this Section 8. (b) Annual Payment Amount. For each subsequent fiscal year, commencing with the 2019-2020 fiscal year, the Permittee shall pay no more than One Thousand Nine Hundred Fifty -Six Dollars and Eighty -Eight Cents ($1,955,88) ("Annual Payment Amount") annually on:a fiscal year (July 1st to June 3011) basis to the GWMA in exchange for the monitoring data collected from the Monitoring Stations. This Annual Payment Amount includes: (1) the Permittee's Cost Share Amount identified in Exhibit "A", attached hereto and incorporated herein; and (2) the Administrative Costs Payment Amount identified in subsection (c) of this Section 8. (c) Administrative Costs. As part of the Initial Payment Amount and the Annual Payment Amount, the Permitteeshallalso pay its proportional share of the GWMA's staff time for hiring the consultants and _invoicing the Permittee, legal fees incurred by the GWMA in the performance of its duties under this Agreement, and audit expenses and other overhead costs ("Administrative Costs Payment Amount"). The Administrative Costs Payment Amount will be added to the Permittee's annual invoice to cover the Permittee's share of the administrative costs. i. GWMA Members. If the Permittee is a GWMA Member, then the Administrative Costs Payment Amount shall be three percent (3%) of the Permittee's Cost Share Amount identified in Exhibit "A." Beginning with the 2019-2020 fiscal year and for each fiscal year thereafter, the GWMA will evaluate this Administrative Costs Payment Amount to ensure it adequately recovers the GWMA's cost of performing its duties under this Agreement. Based on this review, the GWMA may increase or decrease the Administrative Costs Payment Amount for the next fiscal year. The GWMA will provide the Permittee thirty (30) days' written notice prior to July 1st of the fiscal year in which a new Administrative Costs Payment Amount will take effect. ii. Non-GWMA Members. If the Permittee is not a GWMA Member, then the GWMA shall charge eight and seventy-six hundredths percent (8.76%) of the Permittee's Cost Share Amount identified in Exhibit "A." Five percent (5%) of such amount represents the estimated direct, actual costs of the GWMA's Administrative Costs and three and seventy-six hundredths percent (3.76%) represents the estimated indirect, overhead costs of the GWMA's Administrative Costs. Beginning Page 4 of 11 12664/0001/1816452-2' 05/14/18 with the 2019-2020 fiscal year and for each fiscal year thereafter, the GWMA will evaluate this Administrative Costs Payment Amount to ensure it adequately recovers the GWMA's cost of performing its duties under this Agreement. Based on this review, the GWMA may increase or decrease the Administrative Costs Payment Amount for the next fiscal year. The GWMA will provide the Permittee thirty (30) days' written notice prior to July 1st of the fiscal year in which a new Administrative Costs Payment Amount will take effect. (d) The Permittee's Initial Payment Amount shall cover the 2018-2019 fiscal year and is due upon execution of this Agreement, but in no event later than June 30, 2018. For each subsequent fiscal year, commencing with the 2019-2020 fiscal year, the GWMA shall submit annual invoices to the Permittee for the Annual Payment Amount and no later than the April 1 st prior to the new fiscal year. (e) Adjustment of Cost Share Based on Number of Participants. The Initial Payment Amount, the Annual Payment Amount, and the Administrative Costs Payment Amount identified in this Section 8 ("Financial Terms") represent the maximum dollar amounts that the Permittee is required to submit to the GWMA, but may be reduced based on the final number of MS4 Permittees that participate in the cost sharing for the Monitoring Costs. (f) Reserve Credits. If the Permittee's actual cost share amount plus administrative costs are less than the Initial Payment Amount or theAnnualPayment Amount, plus the Administrative Costs Payment Amount, paid by the Permittee in a particular year, then the GWMA will notify the Permittee in writing on the next available invoice and will presume that the Permittee desires any excess balance be credited toward the Permittee's Annual Payment Amount and/or Administrative Costs Payment Amount in subsequent _years, less a reasonable contingency as determined by the GWMA not to exceed $10,000. Such a credit will be applied to the Initial Payment Amount if an excess balance exists for funds paid by Permittee under a prior cost share agreement between the Parties. In lieu of a credit, the Permittee may elect to retain any excess balance as reserves for future Annual Payments Amounts and/or Administrative Costs Payment amounts, and pay the full invoiced amount to the GWMA. Notwithstanding the forgoing, the Administrative Costs Payment Amount charged to non-GWMA Members for indirect, overhead costs in the amount of three and seventy- six hundredths percent (3.76%) of the Permittee's Cost Share Amount will be retained by GWMA and is not subject to a credit. (g) Upon receiving an invoice from the GWMA, the Permittee shall pay the invoiced amount to the GWMA within thirty (30) days of the invoice's date. (h) The Permittee shall be delinquent if its invoiced payment is not received by the GWMA within forty-five (45) days after the invoice's date. If the Permittee is delinquent, the GWMA will: 1) verbally contact the representative of the Permittee; and _2) submit a formal letter from the GWMA Executive Officer to the Permittee at the address listed in Section 12 of this Agreement. If payment is not received within sixty (60) days of the original invoice date, the GWMA may terminate Page 5 of 11 05/14/18 this Agreement. However, no such termination may be ordered unless the GWMA first provides the Permittee with thirty (30) days written notice of its intent to terminate the Agreement. The terminated Permittee shall remain obligated to GWMA for its delinquent payments and any other obligations incurred prior to the date of termination. If the GWMA terminates this Agreement because the Permittee is delinquent in its payment, the Permittee shall no longer be entitled to the monitoring data collected from the Monitoring Stations. (i) Any delinquent payments by the Permittee shall accrue compound interest at the average rate of interest paid by the Local Agency Investment Fund during the time that the payment is delinquent. Section 9. Independent Contractors (a) The GWMA is, and shall at all times remain, a wholly independent contractor for performance of the obligations described in this Agreement. The GWMA's officers, officials, employees and agents shall at all times during the term of this Agreement be under the exclusive control of the GWMA. The Permittee cannot control the conduct of the GWMA or any of its officers, officials, employees or agents. The GWMA and its officers, officials, employees, and agents shall not be deemed to be employees of the Permittee. (b) The GWMA is solely responsible for the payment of salaries, wages, other compensation, employment taxes, workers' compensation, or similar taxes for its employees and consultants performing services hereunder. Section 10. Indemnification and Insurance. (a) The Permittee shall defend, indemnify and hold harmless the GWMA and its 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 GWMA) for negligent or intentional acts, errors and omissions committed by the Permittee or its officers, employees, and agents, arising out of or related to that Permittee's performance under this Agreement, except for such loss as may be caused by GWMA's negligence or that of its officers, employees, or other representatives and agents, excluding the consultant. (b) GWMA makes no guarantee or warranty that any monitoring data prepared by the consultants shall be approved by the relevant governmental authorities. GWMA shall have no liability to the Permittee for the negligent or intentional acts or omissions of GWMA's consultants. Section 11. Termination. (a) The Permittee may terminate this Agreement for any reason, or no reason, by giving the GWMA prior written notice thereof, but the Permittee shall remain Page 6 of 11 12664/0001/1816452-2 05/14/18 responsible for its entire Annual Payment Amount through the end of the current fiscal year during which Permittee terminates the Agreement and shall not be entitled any refund of any portion of said Annual Payment Amount. Moreover, unless the Permittee provides written notice of termination to the GWMA by February 15th immediately prior to the new fiscal year, the Permittee shall also be responsible for its Annual Payment Amount through the endof the new fiscal year (e.g., If the Permittee terminates on March 1St, 2019, the Permittee is responsible for the Annual Payment Amounts for both FY 2018-2019 and FY 2019-2020. If the Permittee terminates on February 10, 2019, the Permittee is responsible for its Annual Payment Amount only for FY 2018-2019, not for FY 2019-2020). If the Permittee terminates the Agreement, the Permittee shall remain liable for any loss, debt, or liability otherwise incurred through the end of the new fiscal year. (b) The GWMA may, with a vote of the GWMA Board, terminate this Agreement upon not less than thirty (30) days written notice to the Permittee. Any remaining funds not due and payable or otherwise legally committed to Consultant shall be returned to the Permittee. Section 12. , Miscellaneous, (a) Other NPDES Permit Holders. Individual or general NPDES permit holders who are not MS4 Permittees that receive Harbor Toxic Pollutants TMDL monitoring requirements in their NPDES permits may wish to participate in this cost share for the Monitoring Costs in order to receive the monitoring data collected from the Monitoring Stations. Upon receipt of a written request from an NPDES permit holder to participate in this cost share, the GWMA will either reject or accept the NPDES permit holder's participation in the cost share arrangement. If accepted, the NPDES permit holder will enter into a separate cost share agreement with the GWMA that will require the NPDES permit holder to pay annually twelve thousand three hundred dollars ($12,300) ("Private Monitoring Fee") for the Monitoring Costs. Failure to pay the Private Monitoring Fee by the date set forth in the cost share =agreement will result in termination of the NPDES permit holder's participant status. An_NPDES permit holder accepted as a participant will only be entitled to receive the monitoring data collected from the Monitoring Stations for any fiscal year in which the participant has paid its Private Monitoring Fee. The Private Monitoring Fee will be applied as a credit toward the Permittee's Annual Payment Amount in proportion to the Permittee's Cost Share Amount identified in Exhibit "A." (b) Notices. All Notices which the Parties require or desire 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: Page 7 of 11 12664/0001/1816452-2 05/14/18 To GWMA: Ms. Grace Kast Executive Officer 16401 Paramount Boulevard Paramount, CA 90723 To the Permittee: City of Downey 11111 Brookshire Avenue Downey, CA 90241 Attn: Gilbert A. Livas (c) Amendment. The terms and provisions of this Agreement may not be amended, modified or waived, except by a written instrument signed by all Parties. (d) Waiver. Waiver by either the GWMA or the Permittee of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver, by the GWMA or the Permittee, 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. (e) 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. (f) hyo Presurnption irr Drafting: The Parties to this Agreement agree that the general rule than an agreement is to be interpreted against the Party drafting it, or causing it to be prepared, shall not apply. (g) 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 provisions(s). (h) Entire A reement. 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) 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 all Parties to this Agreement. Page 8 of 11 05/14/18 0) 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. (k) Authority to Execute this Agreement. The person or persons executing this Agreement on behalf of Permittee warrants and represents that he or she has the authority to execute this Agreement on behalf of the Permittee and has the authority to bind Permittee. 12664/0001/1816452-2 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to executed on their behalf, respectively, as follows: DATE. LOS ANGELES GATEWAY REGION INTEGRATED REGIONAL WATER MANAGEMENT JOINT POWERS AUTHORITY DATE: Signature of GWMA Chair Print Name PERMITTEE Sean Ashton, Mayor Maria Al ici a Duarte, CIVIC, City Clerk Approved as to form- .00� M. Abich Garcia� City Attorney • ATTACHED 12664/0001/1816452-2 EXHIBIT A = COST SHARE MATRIX Calculations based on an estimated monitoring cost of $44,133.55 per monitoring station.