Resolution No. 83321
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RESOLUTION NO. 8332
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A
TMDL CONSULTANT COST -SHARING AND RETENTION
AGREEMENT BY AND AMONG THE EXECUTIVE ADVISORY
COMMITTEE MUNICIPALITIES REGARDING THE NATIONAL
POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES)
WHEREAS, the City of Vernon ("City") was issued a Permit
from the California Regional Water Quality Control Board, Los Angeles
Region ("Regional Board") on July 15, 1996, Order No. 96-054 ("1996
NPDES Permit"), which served as the City's National Pollutant
Discharge Elimination System ("NPDES") Permit under the Federal Clean
Water Act, as well as Waste Discharge Requirements for the City under
the Porter Cologne Act until December 13, 2001; and
WHEREAS, the Regional Board adopted Order No. 01-182, a
National Pollutant Discharge Elimination System ("NPDES") Permit for
Municipal Storm Water and Urban Runoff Discharges within the County of
Los Angeles and the incorporated cities therein, except the City of
Long Beach (hereinafter "NPDES Permit") on December 13, 2001; and
WHEREAS, the U.S. Environmental Protection Agency Region IX
entered into a consent degree requiring the establishment of over 90
total maximum daily loads ("TMDLs") for specific pollutants and has
ordered the State of California to enforce them; and
WHEREAS, the City, along with 83 other incorporated cities
in Los Angeles County, the County of Los Angeles and the Los Angeles
County Flood Control District (hereinafter collectively referred to as
the "NPDES Group"), are concerned about the establishment of TMDLs
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currently exists to satisfy the limits imposed and the potential fines
due to third party litigation; and
WHEREAS, in order to comply with proposed TMDLs, the NPDES
Group believe that they need to secure the services of a consultant to
research and analyze issues relating to the development and
implementation of the TMDLs; and
WHEREAS, the NPDES Group desire to create a mechanism by
which a consultant may be retained, paid and advise the NPDES Group
with respect to TMDL issues; and
WHEREAS, the City's initial payment of Seven Thousand Five
Hundred Dollars ($7,500) will be due within thirty (30) days of
receipt of an invoice once an agreement takes effect.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS:
SECTION 1: The City Council of the City of Vernon hereby
finds and determines that the recitals contained hereinabove are true
and correct.
SECTION 2: The City Council of the City of Vernon hereby
approves and authorizes participating with the NPDES Group in a TMDL
Consultant Cost -Sharing and Retention Agreement, a copy of which is
attached hereto as Exhibit "A" and made a part hereof by this
reference.
SECTION 3: The City Council of the City of Vernon hereby
authorizes the Mayor and the City Clerk to execute the TMDL Consultant
Cost -Sharing and Retention Agreement on behalf of the City.
SECTION 4: The City Council of the City of Vernon hereby
authorizes the payment for its share of the cost associated with the
retention of a consultant pursuant to the terms of the TMDL Consultant
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Cost -Sharing and Retention Agreement with the NPDES Group.
SECTION 5: The City Council of the City of Vernon hereby
directs the City Clerk, or his designee, to send an executed signature
page of the Agreement to:
Desi Alvarez
Executive Advisory Committee Chair
City of Downey
P.O. Box 7016
Downey, CA 90241-7016
SECTION 6: The City Council of the City of Vernon hereby
authorizes the City Administrator to execute any documents necessary
to implement and carry out the purposes of the Agreement.
SECTION 7: The City Clerk of the City of Vernon shall
certify to the passage of this resolution, and thereupon and
thereafter the same shall be in full force and effect.
APPROVED AND ADOPTED this 17th day of December, 2003.
EONIS C. MALBU G, May r
ATTEST:
BRUCE V. MALKENHORST, City Clerk
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STATE OF CALIFORNIA )
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) ss
COUNTY OF LOS ANGELES )
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I, BRUCE V. MALKENHORST, City
Clerk of the City of Vernon, do
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hereby certify that the foregoing Resolution,
being Resolution No.
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8332, was duly adopted by the City
Council of the City of Vernon at a
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regular meeting of the City Council
duly held on Wednesday,
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December 17, 2003, and thereafter was
duly signed by the Mayor of the
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City of Vernon.
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BRUCE V. MALKENHORST, City Clerk
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(SEAL)
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EXHIBIT
TMDL CONSULTANT COST -SHARING
AND RETENTION AGREEMENT
This Total Maximum Daily Load ("TMDL") Consultant Cost -Sharing and Retention
Agreement ("Agreement") is entered into by and between those entities that have signed
this Agreement (individually, "Municipal Participant" and collectively, "Municipal
Participants") with respect to the following:
WHEREAS, the Executive Advisory Committee ("EAC") is comprised of twelve
individuals who represent the County of Los Angeles, the Los Angeles County Flood
Control District and 84 municipalities in Los Angeles County that are subject to
California Regional Water Quality Control Board, Los Angeles Region, Order No. 0 1 -
182 dated December 13, 2001 and the City of Long Beach, which is subject to California
Regional Water Quality Control Board, Los Angeles Region, Order No. 99-060 dated
June 30, 1999 (individually, "EAC Municipality" and collectively, "EAC
Municipalities");
WHEREAS, certain EAC Municipalities wish to retain a consultant
("Consultant") to advise those EAC Municipalities on issues relating to the development
and implementation of TMDLs for various pollutants in water bodies within Los Angeles
County and in the Pacific Ocean and associated bays and inlets adjacent to Los Angeles
County; and,
WHEREAS, certain EAC Municipalities desire to create a mechanism by which
said Consultant may be retained, paid and directed to advise those EAC Municipalities
with respect to TMDL issues.
NOW, THEREFORE, the parties hereto agree as follows:
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Effectiveness of Agreement — Each EAC Municipality wishing to become a
Municipal Participant shall return to the EAC Chair an executed signature page of this
Agreement within thirty (30) days of receipt of notice from the EAC Chair. Upon the
receipt of at least twenty (20) executed signature pages, this Agreement shall take effect.
2. Funding — Upon this Agreement taking effect, the EAC Chair shall direct the
sending of invoices to all EAC Municipalities for an initial payment of seven thousand
five hundred dollars ($7,500) ("Initial Payment"), which payment shall be due within
thirty (30) days of receipt of the invoice. In the event that additional sums are required,
such assessments will be made upon approval of a vote by the majority of the Municipal
Participants and shall be due and payable within thirty (30) days of the date of receipt of
notice of such assessment ("Additional Assessment"). The amount of the Additional
Assessment to be charged each Municipal Participant is subject to modification by
majority vote of the Municipal Participants.
3. Trust Fund — The County of Los Angeles ("County") shall establish and
administer, on behalf of the Municipal Participants, a dedicated interest -bearing trust
fund within the County accounting system ("Trust Fund") to receive the funds collected
from the Municipal Participants and from which to make the payment of fees and costs
submitted by the Consultant, as set forth in Paragraph 8 of this Agreement. The County
also shall prepare and send the invoices to be submitted pursuant to Paragraph 2.
4. Steering Committee — The Municipal Participants shall appoint a Steerigg
Committee to develop a scope of work, identify and select a Consultant, and supervise
the Consultant's work. Steering Committee members shall meet from time to time as
appropriate to review the Consultant's work, approve invoices and otherwise carry out
2
the Steering Committee's obligations under this Agreement. A quorum of the Steering
Committee shall be established if a simple majority of the members are present at a
meeting or by conference call.. Any decision required of the Steering Committee shall be
made by a simple majority of the quorum. The Steering Committee shall include at least
one Municipal Participant from each watershed. Steering Committee membership shall
be open to officials, Municipal Participant employees and contract consultants
representing a Municipal Participant. No Municipal Participant shall appoint more than
one representative on the Steering Committee. The Steering Committee shall also
appoint a Chair and designate the duties of such Chair, which shall include the power to
call meetings of the Steering Committee. The Steering Committee may also conduct its
business through such subcommittees as it may appoint.
5. Selection of Consultant — The Steering Committee shall prepare an appropriate
Request for Proposal or other bid documents ("RIFF), determine the scope of services to
be required of the Consultant, solicit and evaluate any responses to the RFP and, by
majority vote of the Steering Committee, choose a Consultant. No consulting firm
representing a Municipal Participant on the Steering Committee shall be eligible for
consideration as a Consultant.
6. Contract With Consultant — The County shall be the contracting party with the
Consultant. The contract shall incorporate pertinent County contracting requirements and
policies, which requirements and policies may be attached to the RFP. The contract shall
recite, however, that it is for the benefit of the Municipal Participants and shall be paid
for by the Municipal Participants. The County shall present such contract to the Steering
Committee for review and approval prior to execution. The contract shall expressly
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provide appropriate indemnification provisions in favor of the Municipal Participants.
The contract shall also provide that it may be terminated upon written notice by the
County, and otherwise in compliance with County regulations and policies. No
Municipal Participant, including the County, shall be obligated hereunder to bring any
action against Consultant for breach of its obligations under the contract.
7. Supervision of Consultant — The Steering Committee shall be responsible for
coordinating the activities of Consultant, including the scope of work to be performed by
the Consultant, and shall have sole responsibility for interacting with Consultant
regarding the work being performed, including the authority to contact Consultant with
respect to its work and to review any invoices submitted by Consultant. In order to
reduce expense and to avoid confusion as to instructions, no one except Steering
Committee members shall contact Consultant, except with permission of a member of the
Steering Committee. Municipal Participants shall, however, be entitled to directly
receive work product, both written and non -written, from Consultant.
8. Payment of Invoices — The County shall forward all invoices submitted by the
Consultant to the Steering Committee for approval. The County shall make no payments
to Consultant unless approval is first obtained in writing from an authorized Steering
Committee representative. The County shall report monthly in writing to the Steering
Committee Chair the then -current status of the trust fund's cash balance, as well as the
previous month's and cumulative expenses paid to Consultant. The County mny
terminate its administration of the trust fund upon sixty (60) days' written notice to the
Steering Committee Chair.
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9. Waiver of Conflict of Interest — The Municipal Participants agree that, with
respect to any Consultant performing work for the Municipal Participants and that is to be
compensated pursuant to this Agreement (the "Work"): (1) they will not claim or assert
that, based solely on said Consultant's past or prior work for a Municipal Participant or
Participants, said Consultant has a conflict of interest in performing the Work; (2) they
will not claim or assert that, based solely on the Work, said Consultant has a conflict of
interest in connection with any work for any Municipal Participant unrelated to the
matters for which the Consultant has been retained; and (3) they will not claim or assert
that, based solely on the Work, said Consultant has a conflict of interest in any future
representation of any person or entity. This Paragraph shall survive the termination of
this Agreement.
10. Repayment of Trust Fund Monies — If, upon termination of this Agreement and
following the satisfaction of any payment obligations owed to the Consultant or other
parties under this Agreement, any funds remain in the trust fund account established
pursuant to Paragraph 3, the County shall distribute to each then -current Municipal
Participant within thirty (30) days of the date of termination of this Agreement or the
final satisfaction of any payment obligations owed to the Consultant or other parties
under this Agreement (whichever shall come last) a percentage of the remaining funds in
an amount reflecting the percentage of the funds contributed by such Municipal
Participant to the total amount of funds contributed by all then -current Municipal
Participants.
11. Confidentiality — The Municipal Participants agree to treat as confidential and not
disclose to third parties (including to EAC Municipalities that are not Municipal
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Participants or to their employees and representatives), to the fullest extent permitted by
law, any drafts of any written work product produced by Consultant pertaining to the
Work, and to advise the Steering Committee in the event that any third party seeks to
obtain a copy of such drafts. The Steering Committee is authorized to take whatever
action it believes appropriate to protect such drafts from disclosure to third parties,
commensurate with obligations under law. The confidentiality obligations of Municipal
Participants under this Agreement shall remain in full force and effect, without regard to
whether this Agreement is terminated. The confidentiality provisions shall not apply to
information which now or hereafter becomes public knowledge without violation of this
Agreement, or which is sought and obtained from a Municipal Participant or other person
or entity pursuant to applicable discovery procedures and not otherwise protected from
disclosure.
12. Late -Joining Municipal Participants — Any EAC Municipality wishing to become
a Municipal Participant after the deadline for submittal of the Initial Payment ("Late -
Joining Municipal Participant") may do so by submitting a signed signature page to this
Agreement to the Steering Committee Chair, as well as the Initial Payment plus all
Additional Assessments authorized to date by the Municipal Participants pursuant to
Paragraph 2 hereof.
13. Opt -Out Provision — Any Municipal Participant that desires to terminate its
participation under this Agreement may do so upon providing written notice ta.the
Steering Committee Chair, who shall in turn notify the County. Such termination shall be
effect upon receipt of the notice by the Chair. Such municipality shall not be liable for
any Additional Assessment due and owing after the effective date of the Municipal
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Participant's notice of termination, but such municipality shall not be eligible for a refund
of the Initial Payment or any Additional Assessments. Any Steering Committee member
appointed by a Municipal Participant that terminates its participation in this Agreement
shall be considered to have left the Steering Committee as of the effective date of the
Municipal Participant's notice of termination.
14. Amendment and Termination — This Agreement may be amended only in a
writing approved by a simple majority vote of the Municipal Participants, and will
terminate upon a simple majority vote of the Municipal Participants.
15. Severability — If any portion, provision, or part of this Agreement is held,
determined or adjudicated to be invalid, unenforceable, or void for any reason
whatsoever, each such portion, provision or part shall be severed from the remaining
portions, provisions or parts of this Agreement, and (to the extent equitable) shall not
affect the validity or enforceability of such remaining portions, provisions or parts.
16. Rules Of Interpretation — This Agreement is deemed to have been prepared by
each of the parties hereto, and any uncertainty and ambiguity herein shall not be
interpreted against the drafter(s), but rather, if such uncertainty or ambiguity exists, shall
be interpreted according to the applicable rules of interpretation of contracts under the
laws of the State of California and not the substantive law of another state or the United
States or federal common law.
17. Integration and Modification — This Agreement contains all of the term4 and
conditions agreed upon by the parties. No other agreements, oral or otherwise, shall be
deemed to exist or to bind any of the parties hereto. No representative of any party hereto
had or has any authority to make any representation or promise not reflected or contained
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in this Agreement, and each of the parties acknowledges that it has not executed this
Agreement upon any such promise.
18. Authority to Bind — Each person signing this Agreement on behalf of a Municipal
Participant warrants and represents that he or she has authority to so sign on behalf of that
Municipal Participant.
19. Notices — Any notices or invoices required to be sent to any Municipal Participant
under this Agreement shall be sent to the individual designated on the signature block for
each Municipal Participant, either by first-class mail or facsimile. Any notices required
to be given to the Steering Committee Chair shall be made to the Steering Committee
Chair, care of Susan Woods, Watershed Management Division, Los Angeles County
Department of Public Works, 900 Fremont Avenue, Alhambra, California 91803-1331,
facsimile, 626-458-3534. Notice shall be deemed completed the same day as confirmed
facsimile receipt or three business days after sending by first-class mail. The names of
persons designated to receive notice may be freely changed upon written notice to the
Steering Committee Chair.
20. Counterparts — This Agreement may be signed in counterparts, and each
counterpart shall be deemed an original, but all of which shall constitute one and the
same instrument.
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IN WITNESS WHEREOF the parties hereto have executed this Agreement or
caused it to be executed as of the day, month and year shown below.
Dated:
ATTEST:
By
Bruce V. Malkenhorst, City Clerk
APPROVED AS TO FORM:
By
Eric T. Fresch, *ice City Attorney
E
CITY OF VERNON
teos C. Malburg, Ma§or
SUPPORTING
DOCUMENTS
TMDL CONSULTANT COST -SHARING
AND RETENTION AGREEMENT
This Total Maximum Daily Load ("TMDL") Consultant Cost -Sharing and Retention
Agreement ("Agreement") is entered into by and between those entities that have signed
this Agreement (individually, "Municipal Participant" and collectively, "Municipal
Participants") with respect to the following:
WHEREAS, the Executive Advisory Committee ("EAC") is comprised of twelve
individuals who represent the County of Los Angeles, the Los Angeles County Flood
Control District and 84 municipalities in Los Angeles County that are subject to
California Regional Water Quality Control Board, Los Angeles Region, Order No. 0 1 -
182 dated December 13, 2001 and the City of Long Beach, which is subject to California
Regional Water Quality Control Board, Los Angeles Region, Order No. 99-060 dated
June 30, 1999 (individually, "EAC Municipality" and collectively, "EAC
Municipalities");
WHEREAS, certain EAC Municipalities wish to retain a consultant
("Consultant") to advise those EAC Municipalities on issues relating to the development
and implementation of TMDLs for various pollutants in water bodies within Los Angeles
County and in the Pacific Ocean and associated bays and inlets 'adjacent to Los Angeles
County; and,
WHEREAS, certain EAC Municipalities desire to create a mechanism by which
said Consultant may be retained, paid and directed to advise those EAC Municipalities
with respect to TMDL issues.
NOW, THEREFORE, the parties hereto agree as follows:
Effectiveness of Agreement — Each EAC Municipality wishing to become a
Municipal Participant shall return to the EAC Chair an executed signature page of this
Agreement within thirty (30) days of receipt of notice from the EAC Chair. Upon the
receipt of at least twenty (20) executed signature pages, this Agreement shall take effect.
2. Funding — Upon this Agreement taking effect, the EAC Chair shall direct the
sending of invoices to all EAC Municipalities for an initial payment of seven thousand
five hundred dollars ($7,500) ("Initial Payment"), which payment shall be due within
thirty (30) days of receipt of the invoice. In the event that additional sums are required,
such assessments will be made upon approval of a vote by the majority of the Municipal
Participants and shall be due and payable within thirty (30) days of the date of receipt of
notice of such assessment ("Additional Assessment"). The amount of the Additional
Assessment to be charged each Municipal Participant is subject to modification by
majority vote of the Municipal Participants.
3. Trust Fund — The County of Los Angeles ("County") shall establish and
administer, on behalf of the Municipal Participants, a dedicated interest -bearing trust
fund within the County accounting system ("Trust Fund") to receive the funds collected
from the Municipal Participants and from which to make the payment of fees and costs
submitted by the Consultant, as set forth in Paragraph 8 of this Agreement. The County
also shall prepare and send the invoices to be submitted pursuant to Paragraph 2.
4. Steering Committee — The Municipal Participants shall appoint a Steering
Committee to develop a scope of work, identify and select a Consultant, and supervise
the Consultant's work. Steering Committee members shall meet from time to time as
appropriate to review the Consultant's work, approve invoices and otherwise carry out
2
the Steering Committee's obligations under this Agreement. A quorum of the Steering
Committee shall be established if a simple majority of the members are present at a
meeting or by conference call. Any decision required of the Steering Committee shall be
made by a simple majority of the quorum. The Steering Committee shall include at least
one Municipal Participant from each watershed. Steering Committee membership shall
be open to officials, Municipal Participant employees and contract consultants
representing a Municipal Participant. No Municipal Participant shall appoint more than
one representative on the Steering Committee. The Steering Committee shall also
appoint a Chair and designate the duties of such Chair, which shall include the power to
call meetings of the Steering Committee. The Steering Committee may also conduct its
business through such subcommittees as it may appoint.
5. Selection of Consultant — The Steering Committee shall prepare an appropriate
Request for Proposal or other bid documents ("RIFF), determine the scope of services to
be required of the Consultant, solicit and evaluate any responses to the RFP and, by
majority vote of the Steering Committee, choose a Consultant. No consulting firm
representing a Municipal Participant on the Steering Committee shall be eligible for
consideration as a Consultant.
6. Contract With Consultant — The County shall be the contracting parry with the
Consultant. The contract shall incorporate pertinent County contracting requirements and
policies, which requirements and policies may be attached to the RFP. The contract shall
recite, however, that it is for the benefit of the Municipal Participants and shall be paid
for by the Municipal Participants. The County shall present such contract to the Steering
Committee for review and approval prior to execution. The contract shall expressly
N
provide appropriate indemnification provisions in favor of the Municipal Participants.
The contract shall also provide that it may be terminated upon written notice by the
County, and otherwise in compliance with County regulations and policies. No
Municipal Participant, including the County, shall be obligated hereunder to bring any
action against Consultant for breach of its obligations under the contract.
7. Supervision of Consultant — The Steering Committee shall be responsible for
coordinating the activities of Consultant, including the scope of work to be performed by
the Consultant, and shall have sole responsibility for interacting with Consultant
regarding the work being performed, including the authority to contact Consultant with
respect to its work and to review any invoices submitted by Consultant. In order to
reduce expense and to avoid confusion as to instructions, no one except Steering
Committee members shall contact Consultant, except with permission of a member of the
Steering Committee. Municipal Participants shall, however, be entitled to directly
receive work product, both written and non -written, from Consultant.
8. Payment of Invoices — The County shall forward all invoices submitted by the
Consultant to the Steering Committee for approval. The County shall make no payments
to Consultant unless approval is first obtained in writing from an authorized Steering
Committee representative. The County shall report monthly in writing to the Steering
Committee Chair the then -current status of the trust fund's cash balance, as well as the
previous month's and cumulative expenses paid to Consultant. The County may
terminate its administration of the trust fund upon sixty (60) days' written notice to the
Steering Committee Chair.
n
9. Waiver of Conflict of Interest — The Municipal Participants agree that, with
respect to any Consultant performing work for the Municipal Participants and that is to be
compensated pursuant to this Agreement (the "Work"): (1) they will not claim or assert
that, based solely on said Consultant's past or prior work for a Municipal Participant or
Participants, said Consultant has a conflict of interest in performing the Work; (2) they
will not claim or assertthat, based solely on the Work, said Consultant has a conflict of
interest in connection with any work for any Municipal Participant unrelated to the
matters for which the Consultant has been retained; and (3) they will not claim or assert
that, based solely on the Work, said Consultant has a conflict of interest in any future
representation of any person or entity. This Paragraph shall survive the termination of
this Agreement.
10. Repayment of Trust Fund Monies — If, upon termination of this Agreement and
following the satisfaction of any payment obligations owed to the Consultant or other
parties under this Agreement, any funds remain in the trust fund account established
pursuant to Paragraph 3, the County shall distribute to each then -current Municipal
Participant within thirty (30) days of the date of termination of this Agreement or the
final satisfaction of any payment obligations owed to the Consultant or other parties
under this Agreement (whichever shall come last) a percentage of the remaining funds in
an amount reflecting the percentage of the funds contributed by such Municipal
Participant to the total amount of funds contributed by all then -current Municipal
Participants.
11. Confidentiality — The Municipal Participants agree to treat as confidential and not
disclose to third parties (including to EAC Municipalities that are not Municipal
5
Participants or to their employees and representatives), to the fullest extent permitted by
law, any drafts of any written work product produced by Consultant pertaining to the
Work, and to advise the Steering Committee in the event that any third party seeks to
obtain a copy of such drafts. The Steering Committee is authorized to take whatever
action it believes appropriate to protect such drafts from disclosure to third parties,
commensurate with obligations under law. The confidentiality obligations of Municipal
Participants under this Agreement shall remain in full force and effect, without regard to
whether this Agreement is terminated. The confidentiality provisions shall not apply to
information which now or hereafter becomes public knowledge without violation of this
Agreement, or which is sought and obtained from a Municipal Participant or other person
or entity pursuant to applicable discovery procedures and not otherwise protected from
disclosure.
12. Late -Joining Municipal Participants — Any EAC Municipality wishing to become
a Municipal Participant after the deadline for submittal of the Initial Payment ("Late -
Joining Municipal Participant") may do so by submitting a signed signature page to this
Agreement to the Steering Committee Chair, as well as the Initial Payment plus all
Additional Assessments authorized to date by the Municipal Participants pursuant to
Paragraph 2 hereof.
13. Opt -Out Provision — Any Municipal Participant that desires to terminate its
participation under this Agreement may do so upon providing written notice to the
Steering Committee Chair, who shall in turn notify the County. Such termination shall be
effect upon receipt of the notice by the Chair. Such municipality shall not be liable for
any Additional Assessment due and owing after the effective date of the Municipal
M.
Participant's notice of termination, but such municipality shall not be eligible for a refund
of the Initial Payment or any Additional Assessments. Any Steering Committee member
appointed by a Municipal Participant that terminates its participation in this Agreement
shall be considered to have left the Steering Committee as of the effective date of the
Municipal Participant's notice of termination.
14. Amendment and Termination — This Agreement may be amended only in a
writing approved by a simple majority vote of the Municipal Participants, and will
terminate upon a simple majority vote of the Municipal Participants.
15. Severability — If any portion, provision, or part of this Agreement is held,
determined or adjudicated to be invalid, unenforceable, or void for any reason
whatsoever, each such portion, provision or part shall be severed from the remaining
portions, provisions or parts of this Agreement, and (to the extent equitable) shall not
affect the validity or enforceability of such remaining portions, provisions or parts.
16. Rules Of Interpretation — This Agreement is deemed to have been prepared by
each of the parties hereto, and any uncertainty and ambiguity herein shall not be
interpreted against the drafter(s), but rather, if such uncertainty or ambiguity exists, shall
be interpreted according to the applicable rules of interpretation of contracts under the
laws of the State of California and not the substantive law of another state or the United
States or federal common law.
17. Integration and Modification — This Agreement contains all of the terms and
conditions agreed upon by the parties. No other agreements, oral or otherwise, shall be
deemed to exist or to bind any of the parties hereto. No representative of any party hereto
had or has any authority to make any representation or promise not reflected or contained
7
in this Agreement, and each of the parties acknowledges that it has not executed this
Agreement upon any such promise.
18. Authority to Bind Each person signing this Agreement on behalf of a Municipal
Participant warrants and represents that he or she has authority to so sign on behalf of that
Municipal Participant.
19. Notices — Any notices or invoices required to be sent to any Municipal Participant
under this Agreement shall be sent to the individual designated on the signature block for
each Municipal Participant, either by first-class mail or facsimile. Any notices required
to be given to the Steering Committee Chair shall be made to the Steering Committee
Chair, care of Susan Woods, Watershed Management Division, Los Angeles County
Department of Public Works, 900 Fremont Avenue, Alhambra, California 91803-1331,
facsimile, 626-458-3534. Notice shall be deemed completed the same day as confirmed
facsimile receipt or three business days after sending by first-class mail. The names of
persons designated to receive notice may be freely changed upon written notice to the
Steering Committee Chair.
20. Counterparts — This Agreement may be signed in counterparts, and each
counterpart shall be deemed an original, but all of which shall constitute one and the
same instrument.
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IN WITNESS WHEREOF the parties hereto have executed this Agreement or
caused it to be executed as of the day, month and year shown below.
Dated
ATTEST:
Bruce V. Malkenhorst, City Clerk
APPROVED AS TO FORM:
By
Eric f. Fresch, Acting City Attorney
0
CITY OF VERNON
eo 's C. Malburg, Mayor v
Executive Advisory Committee
Stormwater Program — County of Los Angeles
July 12, 2011
Scott-Rigg
4305 South Santa Fe Avenue
Vernon, CA 90058-1786
Re-0 Termination of-EAC TMDL Consultant Cost -Sharing Agreement of Summer 2003
Dear Scott Rigg:
In 2003, the EAC proposed and initiated a TMDL Consultant Cost -Sharing Agreement,
which the County agreed to administer as a Trust Fund. A Steering Committee met on _
several occasions, but few members were able to fully participate and staffing changes
led to a hiatus in those meetings prior to the agreement reaching the required 20 parties
needed to come into effect.. Including your agency, 22 municipalities across 5 major
Watersheds, eventually contributed. $7,500, each for a total of $165,000.
Despite the_ participant's best intentions, the intervening years have demonstrated that
TMDLs are watershed spercific, based on differing base assumptions, difficult"to monitor
in a defensible fashion, and -the -necessary supporting scientific studies cost trillions of
dollars to conduct. As the Steering Committee Chair, I have proposed to the County
that we simultaneously terminate the agreement and return the funds to the participating
agencies, by using the "opt out" provisionidentifiedin clause 13 of the agreement. To
efficiently terminate the agreement and facilitate the prompt return your agency's
contribution, please complete the accompanying page and, return a scanned, pdf, fax or
hard copy to my attention. If you have any questions, I can be reached by phone at ,
.562-904-7112, fax 562-904-7296, or email at agreene0downeyca.ora.
Sincerely,
Gerald E. Greene, D-Env, PE, QEP
Chair, Executive Advisory Committee and TMDL Steering Committee Chair
cc: . Ruby Wang, LAC, DPW
Notice by the City of Vernon to Terminate Participation in the EAC, TMDL
Consultant Cost -Sharing and Retention Agreement
In 203, the City of Vernon agreed, in good faith, to participate in the TMDL Consultant
Cost Sharing and Retention Agreement and contributed $7,500.00 towards the effort.
The intervening years have demonstrated that TMDLs are watershed specific, based on
differing base assumptions, difficult to monitor in -a defensible fashion, and.the
necessafy-support ng scientific studies cost millions of dollars to. conduct. Through no
fault of the County, City, or other parties to said Agreement, the funds have remained
unused and -should -now be returned to the original participants.
As a representative of the City of Vernon, I wish to exercise Section 13, the Opt -out
provision, of'said agreement to wit: Any Municipal Participant that desires to terminate
its participation under this Agreement may do so upon providing written notice to the
Steering Committee Chair, who shall in turn notify the County.
Unless differently provided below, the undersigned individual represent themselves to
be an agent of the City of Vernon -authorized to direct the EAC TMDL Steering Chair
and County of Los Angeles, Department of Public Works to terminate participation of -
the City of Vernon in the EAC TMDL Consultant Cost -Sharing andRetention
Agreement. Please direct the refund of our $7,500 contribution to be made as, a Check
payable to the City of Vernon and sent to the attention of Scott Rigg at 4305 South
Santa Fe ° Avenue, Vernon, CA 90058=1786
Instead of the above payment and mailing information, please use the following: -
Refund made payable to:
Refund sent to -the attention of: $AMUEL KEVIN WILSON
Refund sent to Address:
Refund sent to Address:
Refund sent to Address:
Agreement Terminating Signature:
,FefltoOernon..
Samuel Kevin Wilson, Director of Community Services
Signature Date-. q-_ Z- `/ & water
APPROVED AS TO FO&'
Michael B. Montgomery, Int im City Attiorney
071211 EACTMDLConsultantCostSharingAgreementTemrination.doe
1p Amha'A
COMMUNITY SERVICES & WATER DEPARTMENT
Samuel Kevin Wilson, Director of Community Services & Water
4305 Santa Fe Avenue, Vernon, California 90058
Telephone (323) 583-8811 Fax (323) 826-1435
August 2, 2011
Gerald Greene, EAC Chair
City of Downey
11111 Brookshire Avenue
Downey, California 90241
SUBJECT: TERMINATION OF EAC TMDL CONSULTANT COST -SHARING
AGREEMENT
Dear Mr. Greene:
Enclosed herewith is a frilly executed original of the Notice by the City of Vernon to Terminate
Participation in the EAC, TMDL Consultant Cost -Sharing and Retention Agreement. Said notice directs
the Chair and the County of Los Angeles to terminate participation of the City of Vernon in the EAC
TMDL Consultant Cost -Sharing and Retention Agreement and direct the refund of the City of Vernon's
contribution in the amount of $7500 to my attention.
If you have any questions please contact Claudia Arellano, of my staff at 323-583-8811 extension
258. Thank you.
SKW/ca
Enclosure
c: City Clerk
Sincerel
Atuielvin Wilson, P.E.
Director of Community Services & Water
EXAsive(y Industrial
CITY CLERK'S OFFICE
INTEROFFICE MEMORANDUM
DATE: August 2, 2011
TO: S. Kevin Wilson, Director of Community Services & Water
FROM: Willard Yamaguchi, City Clerk VO
RE: Termination of EAC TMDL Consultant Cost -Sharing Agreement
Transmitted herewith for your transmittal is a fully executed original of the above -referenced
agreement termination, which was approved by City Council on August 2, 2011.
Please ensure that a copy of your transmittal communication is sent to my attention for the file.
Thank you.
WY:dj
Attachment
c: Rory Burnett
Resolution No. 8332
DECEIVED
RECEIVED JUL 2 5 2011
JUL 26 2011 CITY ADMINISTRATION
CITY CLERK $ OFFICE STAFF REPORT �'
COMMUNITY SERVICES & WATER DEPARTMEN
DATE: July 25, 2011
TO: Honorable Mayor and City Council
FROM: Samuel Kevin Wilson, Director of Community Services & Water
RE: TERMINATION OF EAC TMDL CONSULTANT COST -SHARING
AGREEMENT
The USEPA Region IX had entered into a consent decree requiring the establishment of over 90 Total
Maximum Daily Loads (TMDLs) for specific pollutants and ordered the State to enforce them. A TMDL is a
limitation on a specific pollutant and TMDLs are being established for over 90. pollutants that a City may
discharge to its storm drains. For example, the City. of Vernon is subject to the Los Angels River Trash TMDL
which requires reduction of trash entering the Los Angeles River from storm drains to be reduced by 10% per
year to a "zero" value. The City of Vernon along with 83 other incorporated cities in Los Angeles County, the
County of Los Angeles and the Los Angeles County Flood Control District were concerned about the.
establishment of TMDL's. Assuch, staff recommended to the Vernon City Council approval of the TMDL
Consultant Cost -Sharing and Retention Agreement by and among the Executive Advisory Committee (EAC)
Municipalities regarding the NPDES. Said Agreement was approved by City Council on December 17,
2003 under Resolution No. 8332 and an initial payment of $7500 was. made.
The EAC secured participation and financial support from the City of Vernon and 21 other
municipalities to procure professional services to assist with scientific analysis and development of pollutant
TMDLs for regional water bodies. Each participant contributed an initial payment of $7500 which was
administered by.the County under a dedicated interest -bearing trust fund.
Notwithstanding the: noblest 'intentions of the participants, proper TMDL development is a complex
process and difficult to monitor, as mentioned in the EAC's and Steering Committee's Chair's letter attached
herewith. The Chair has proposed to the County that we terminate the agreement using the :Opt -Out Provision
under Section 13 of the original agreement and provided a Notice to Terminate. Participation in the EAC, .
TMDL Consultant Cost -Sharing and Retention Agreement (Notice) directing a refund of the initial payment and
unused funds of $7500. Staff inquired on the accumulated interest on the funds and the County indicates that
there was no accumulated interest on said funds.
It is my recommendation that the City Council terminate said Agreement and authorization to execute
the attached Notice. The Interim City Attorney has reviewed this item. Please schedule this item on the August
2, 2011 City. Council agenda for approval. Thank you.
SKW/ca
Enclosures
RECEIVED of VE
JUL 2 6 2011
CITY CLERK'S OFFICE `°S,'WLY,"��s�"
COMMUNITY SERVICES & WATER DEPARTMENT
. . . . . . . . . . . . . . . . . . . . . . . . . .
OFFICE MEMORANDUM
N-1
TOc mark Whitworth, City Administrator
FROM: Samuel Kevin Wilson, rector of Community Services & Water
DATE July 25, 2011
SUBJECT: TERMINATION OF EAC TMDL CONSULTANT COST -SHARING
AGREEMENT
The USEPA Region IX had entered into a consent decree requiring the establishment of over 90 Total
Maximum Daily Loads (TMDLs) for specific pollutants and ordered the State to enforce them. A TMDL is a
limitation on a specific pollutant and TMDLs are being established for over 90 pollutants that a City may
discharge to its storm drains. For example, the City of Vernon is subject to the Los Angels River Trash TMDL
which requires reduction of trash entering the Los Angeles River from storm drains to be reduced by 10% per
year to a "zero" value. The City of Vernon along with 83 other incorporated cities in Los Angeles County, the
County of Los Angeles and the Los Angeles County Flood Control District were concerned about the
establishment of TMDL's.. As such, staff recommended to the Vernon City Councilapproval of the TMDL
Consultant Cost -Sharing and Retention Agreement by and among the Executive Advisory Committee (EAC)
Municipalities regarding the NPDES. Said Agreement was approved by the City Council on December 17,
2003 under :Resolution No. 8332 and an initial payment of $7500 was made.
The EAC secured participation and financial support from the City of Vernon and 21 other
municipalities to procure professional services to assist with scientific analysis and development of pollutant
TMDLs for regional water bodies. Each participant contributedan initial payment of $7500which was
administered by the County under a dedicated interest -bearing trust fund.
Notwithstanding the noblest intentions of the participants,.proper TMDL development is. a complex
process and difficult to monitor, as mentioned in the EAC's and Steering Committee's Chair's letter attached
herewith. The Chair has proposed to the County that we terminate the agreement using the Opt -Out Provision
under Section 13 of the original agreement and provided a Notice to Terminate Participation in the EAC,
TMDL Consultant Cost -Sharing and Retention Agreement directing_a refund of the initial payment and unused
funds of $7500..Staff inquired on the accumulated interest on the funds and the County indicates that there was
no accumulated interest on said funds.
It is my. recommendation that the City Council terminate said Agreement and authorization to execute
the attached Notice: The Interim City Attorney has reviewed this item. Please schedule this item on the August
2, 2011 City Council agenda for approval. Thank you. .
SKW/ca
Enclosures
CITY ATTORNEY'S OFFICE
INTER -DEPARTMENT MEMORANDUM
DATE: July 20, 2011
TO: Samuel Kevin Wilson, Director of Community Services & Water
FROM: Mike Montgomery, Interim City Attorney
RE: Termination of EAC TMDL Consultant Cost -Sharing Agreement
I have received and reviewed the Memorandum dated July 14, 2011, and
the attachments thereto.
The notice of termination should be submitted to Council for approval
to terminate the cost -sharing agreement.
MM:em
Enclosures
Executive Advisory Committee:
Stormwater Program County of Los Angeles
July 1.2, 2.011
Scott Rigg
4305 South.Santa Fe Avenue
Vernon, CA 90058-1786
Re: Termination of EAC TMDL Consultant Cost -Sharing Agreement of Summer 2003
Dear Scott Rigg:
In 2003, the EAC proposed and initiated a TMDL Consultant Cost -Sharing Agreement,
which the County agreed to. administer as a Trust Fund. A Steering Committee met on
several occasions; but few members were able to fully participate and staffing changes
led to a hiatus in those meetings prior to the agreement reaching the required 20 parties
needed to come into effect. Including your agency, 22 municipalities across 5 major
Watersheds, eventually contributed $7,500 each fora total of $165,000.
Despite the participant's best intentions; the intervening years have.demonstrated that
TMDLs are watershed specific, based on differing base.assumptions, difficult to monitor
in a defensible fashion, and the necessarysupporting scientific studies cost. millions of.
dollars to conduct. `As the Steering Committee Chair, 1. have. proposed to the County
that we simultaneously terminate the agreement and return the funds to the participating
agencies, by using the ."opt out provision identified. in clause 13 of the, agreement. To
efficiently terminate the. agreement and facilitate the prompt return your agency's
contribution, please complete the accompanying page and return a scanned, pdf, fax or
hard copy to my attention. If you have any questions, l can be reached by phone at
562=904-7112, fax 562-904-7296, or email .at ggreene@downeyca.org.
Notice by the City of. Vernon to Terminate Participation in'the EAC, TMDL
Consultant Cost -Sharing and. Retention Agreement
Signature Date:
071211 EACTMDLConsultantCostSharingAgreementTermination.doc
Arellano, Claudia
From: Gerald Greene <ggreene@downeyca.org>
Sent: Wednesday, July 13, 2011 10:01 AM
To: Arellano, Claudia
Subject: FW: Request to Terminate and Repay the EAC TMDL Costs Sharing Agreement Trust Fund
See highlight, below
Thanks, Gz
From: Gerald Greene
Sent: Tuesday, July 12, 2011 2:10 PM
To: 'Wang, Ruby'
Cc: Wu, Frank; Kuo, Frank; Lasso, Aracely
Subject: RE: Request to Terminate and Repay the EAC TMDL Costs Sharing Agreement Trust Fund
Thanks for the header catch.
I will try to intercept as EAC Chair (and partial instigator of this debacle), but may need to pass it off if it becomes an
extended operation.
I am anticipating that most agencies will sign and return promptly, but keep your fingers crossed. -
Ruby, I'll copy you on the send out and "major" progress points.
I assume FW, FK, and LA can wait for the final update me.
Thanks, G2
From: Wang, Ruby [mailto:RWANG@dpw.lacounty.gov]
Sent: Tuesday, July 12, 2011 2:00 PM
To: Gerald Greene
Cc: Wu, Frank; Kuo, Frank; Lasso, Aracely; Wang, Ruby
Subject: RE: Request to Terminate and Repay the EAC TMDL Costs Sharing Agreement Trust Fund
Looks fine. You might want to change the heading for page 2. It currently says:
Dr. Swamikannu, 3rd Draft VCMS4P
May 29, 2008, Page 2 of 2
i
So is the intention for each city to sign the notice and submit them directly to us (with a cover letter as
needed), or via you as the EAC Chair?
Best. Regards,
Ruby Wang
Los Angeles Flood Control District
County of Los Angeles Department of Public Works
Watershed Management Division
Water Quality Section - NPDES Unit
rwana@dow.lacounty. aov
Office: (626) 458-4343
From: Gerald Greene [mailto:ggreene@downeyca.org]
Sent: Tuesday, July 12, 2011 1:54 PM
To: Wang, Ruby
Cc: Wu, Frank; Kuo, Frank; Lasso, Aracely
Subject: RE: Request to Terminate and Repay the EAC TMDL Costs Sharing Agreement Trust Fund
Ruby, I have made the requested changes. Is it ready for distribution and subsequent County Refund? Thanks, G2
From: Wang, Ruby [mailto:RWANG@dpw.lacounty.gov]
Sent: Tuesday, July 12, 2011 6:50 AM
To: Gerald Greene
Cc: Wu, Frank; Kuo, Frank; Lasso, Aracely; Wang, Ruby
Subject: RE: Request to Terminate and Repay the EAC TMDL Costs Sharing Agreement Trust Fund
Please include some of the reasons you cited in your letter to the cities in the request to terminate document
rather than just "through no fault of the County, City, or other parties..."
Thank you.
Best Regards,
2
Ruby Wang
Los Angeles Flood Control District
County of Los Angeles Department of Public Works
Watershed Management Division
Water Quality Section - NPDES Unit
rwana@dow.lacoun tv. aov
Office: (626) 458-4343
From: Gerald Greene [mailto:ggreene@downeyca.org]
Sent: Thursday, June 23, 2011 4:58 PM
To: Wang, Ruby
Cc: Wu, Frank; Kuo, Frank; Lasso, Aracely
Subject: RE: Request to Terminate and Repay the EAC TMDL Costs Sharing Agreement Trust Fund
Ruby, Can you review the attached and assess whether the County can use the second page (signed by each city) as a
basis for returning the EAC TMDL Cost Sharing Agreement Contribution. Obviously, I like to avoid getting all (or most) of
the signatures and then find out the collection format was unacceptable to the County. BTW, the naive part of me from 8
years ago apologies for the current effort.
On a related note, several of the participants spoke of shifting the direction of the check to address a specific watershed
initiative (SGR/Coyote Creek TMDL).
assume that could do so by providing the name and address of that accepting work group.
I have included the mail merge worksheet for your info.
Thanks, G2
From: Wang, Ruby [mailto:RWANG@dpw.lacounty.gov]
Sent: Thursday, June 23, 2011 8:26 AM
To: Gerald Greene
Cc: Wang, Ruby
Subject: Request to Terminate and Repay the EAC TMDL Costs Sharing Agreement Trust Fund
Importance: High
Hey Gerry. What's the status on this? County Admin wants us to close this account end of FY, which is next
week. I know that's pretty much impossible but I'll need to at least provide them with the status. I know it
takes some time to get the 22 cities to sign, but considering they get back $7500, 1 would think they would get
a move on this. I'll poke you at the SGR meeting today as well.
Best Regards,
Ruby Wang
Los Angeles Flood Control District
3
County of Los Angeles Department of Public Works
Watershed Management Division
Water Quality Section - NPDES Unit
rwanp@dpw.lacounty. pov
Office: (626) 458-4343
4
MAKE CHECK PAYABLE TO
MAIL TO
City of Vernon
4305 Santa Fe Avenue
Vernon, CA 90058
4 COUNTY OF LOS ANGELES DEPARTMENT OF PUBLIC WORKS
P.O. Box 7437
Alhambra, CA 91802-7437
INVOICE
CUSTOMER NUMBER DATE PAGE
ACCT. NO.
PW85/001 0504DO21 05/27/04 1