CONTRACT 3202 - PERM Settlement Agreement CLOSED3'?02
HYPERION MONITORING AGREEMENT
This HYPERION MONITORING AGREEMENT ( "Agreement ") is entered into
this 15 day of July 2003, between the City of Los Angeles ( "Los Angeles ") and the
City of El Segundo ( "El Segundo ").
RECITALS
WHEREAS, in or about March 1992, an "ENVIRONMENTAL LITIGATION
SETTLEMENT AGREEMENT BETWEEN THE CITY OF LOS ANGELES AND THE
CITY OF EL SEGUNDO ( "Settlement Agreement) and its companion document the
"MITIGATION MONITORING IMPLEMENTATION PLAN FOR THE HYPERION
WASTEWATER TREATMENT PLANT ("MMIP ")" (collectively "MMIP
Agreements ") were entered into between Los Angeles and El Segundo for purposes of
monitoring and mitigating the environmental impacts of the upgrade project for the
Hyperion Waste Treatment Plant ( "Hyperion ") that is located at the Northwest border of
El Segundo; and
WHEREAS the construction of the upgrade project which was contemplated by
the MMIP Agreements has been completed, but Hyperion requires, and is contemplated
to continue to require modification and maintenance, including repairs related to the
operation of Hyperion; and
WHEREAS the operation of Hyperion can result in potential impacts on the
residents and businesses located within El Segundo and accordingly the parties desire to
continue the process of obtaining information, assessing operational issues and
communicating regarding such issues; and
WHEREAS the parties are desirous of meeting on a regular basis to discuss
potential impacts and mitigation relating to the operation of Hyperion as this formal
process has proven constructive in the past; and
WHEREAS the parties are desirous of continuing a process whereby the parties
attempt to resolve disputes that may arise relating to the potential impacts and mitigation
regarding the operation of Hyperion; and
NOW THEREFORE the parties do agree as follows:
Section 1. Effective Date and Term. This Agreement shall become a binding
agreement as of its execution date and the terms and conditions of this Agreement shall
take effect commencing upon full execution of this document and shall remain in full
force and effect through and including December 31, 2007 unless terminated earlier by
mutual agreement of the parties. Prior to the expiration of this Agreement, the parties
shall meet and enter into good faith negotiations for purposes of attempting to negotiate
an extension to this Agreement or a new agreement regarding the potential operational
impacts of Hyperion.
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Section 2. Purpose of Agreement. During the term of this Agreement the parties
agree to undertake the obligations set forth herein for purposes of.
(a) Attempting to minimize the potential impacts' of operation of
Hyperion;
(b) Facilitating cooperation, exchange of information between and
participation by the parties in mitigating potential relating to the operation of
Hyperion;
(c) Attempting to ensure the adequate assessment of potential impacts of
the operation of Hyperion; and
(d) Recognizing and attempting to resolve conflicts between the parties
with respect to potential impacts and mitigation relating to the operation of
Hyperion;
Section 3. Mitigation Monitors. Each party shall during the term of this
agreement ensure that it has in place a qualified person, of its own choosing, to act as a
mitigation monitor ( "Mitigation Monitor ") to assist in carrying out the purposes set forth
in this Agreement and fulfill the obligations and exercise the rights set forth herein.
Section 3.1. Reimbursement of Costs. Los Angeles shall pay El
Segundo, on or before January 31 of each year during the term of this Agreement; the
annual sum of $24,000 to defray the costs incurred by El Segundo relating to the
Mitigation Monitor and related costs. The annual payment shall be made in one lump
sum. The payments shall be begin in and for calendar year 2003 and continue annually
through calendar year 2007 for a total of five annual payments. Compensation to El
Segundo shall not exceed $120,000.00 for the term of this Agreement.
Section 3.2. General Authority and Obligations: The authority of the
Mitigation Monitors and/or designee shall include, but is not limited to:
(a) Assisting in the exchange of information between the parties.
(b) Reviewing public records related to the operation of Hyperion;
as set forth in section 5, herein.
(c) Assisting in resolving disputes as set forth in section 6, herein.
1 The term "potential impacts" is used throughout this agreement and shall refer to:
impacts related to air quality; noise and vibration; public health and safety; and visual
character; aesthetics; traffic; light and glare; and vector control.
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(d) Determining the form and specific content of the monthly
meetings referred to in Section 4, herein.
(e) Attending sampling and testing events (where feasible) and
receiving sampling and testing results.
(f) The Los Angeles Mitigation Monitor shall be responsible for
day -to -day field mitigation monitoring activities relating to potential
impacts associated with the operation of Hyperion. The Los Angeles
Mitigation Monitor or his/her designee shall be present at Hyperion or
reasonably available to observe the potential impacts and mitigation
relating to the operation of Hyperion.
(g) The Mitigation Monitors shall be reasonably available to
consult on matters which are related to the mitigating potential impacts of
the operation of Hyperion and shall make themselves reasonably available
to each other during the term of this Agreement.
(h) The Mitigation Monitors or their designees shall meet upon
request as necessary to discuss the potential impacts and mitigation of
such impacts and shall attend the monthly meetings required by Section 4
hereof. At least one week prior to each such monthly meeting, the Los
Angeles Mitigation Monitor or designee will provide to the El Segundo
Mitigation Monitor, by fax and or first class United States Mail, a draft
agenda and background information. Following each monthly meeting,
the Los Angeles Mitigation Monitor or designee shall be responsible for
the preparation of written minutes of the monthly meeting. A copy shall
be furnished to the El Segundo Mitigation Monitor, and to other interested
parties upon request.
(i) The Los Angeles Mitigation Monitor or designee shall produce
a quarterly newsletter that shall contain a status report on capital projects;
a section describing the various processes at the plant including
improvements and other items that may by of interest to the community.
This newsletter shall be mailed to the El Segundo Mitigation Monitor as
well as anyone that requests a copy.
0) The Los Angeles Mitigation Monitor shall oversee a telephone
hotline maintained by Los Angeles for purposes of receiving complaints
from residents and businesses located within El Segundo on a twenty -hour
per day, seven days a week basis, regarding potential impacts relating to
the operation of Hyperion. The Los Angeles Mitigation Monitor or
designee shall respond to all complaints in a timely manner. All telephone
complaints shall be logged with a description of the complaint and a
summary of any response given. All written complaints shall be responded
to timely in writing by the Los Angeles Mitigation Monitor or designee.
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The El Segundo Mitigation Monitor
referenced telephone complaint logs
complaints.
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shall have access to the above-
, complaints and responses to
The El Segundo Mitigation Monitor may comment on the adequacy of a
written or oral response by the Los Angeles Mitigation Monitor to a
complaint received.
(k) The Los Angeles Mitigation Monitor shall, within 8 hours,
notify the El Segundo Mitigation Monitor and the City of El Segundo of
any event or occurrence that has resulted in, or that is likely to result in, an
impact.
3.1.2. Access to Facility: The El Segundo Mitigation Monitor or his/her
authorized representative shall be allowed access to Hyperion at reasonable times
upon 48 hours prior notice (where practical), for purposes consistent with this
Agreement, subject to any reasonable safety requirements., Such access shall be
for the purpose of reviewing the potential impacts and any mitigation efforts of
Hyperion and to carry out the rights and obligations set forth in this Agreement.
Los Angeles shall be responsible for ensuring access to the plant.
Section 4. Meetings. The parties shall agree to a regular meeting date and time
for purposes of conducting monthly regular meetings, to be determined by the parties
during the term of this Agreement, which shall be attended by the parties, including the
Mitigation Monitors, and shall be open to the public for purposes of discussing concerns
and issues relating to the environmental impacts relating to the operation of Hyperion.
Section 5. Records. During the term of this Agreement, the parties agree to
make available and maintain records (as defined by the Public Records Act, Government
Code Section 6250 et. Se q.) as set forth below:
Section 5.1. Availability of Records. Each party shall promptly make
available upon request to the other party all records relating to the potential
impacts of the operation of Hyperion, except for those records that are exempt
from disclosure pursuant to the Public Records Act (Government Code Section
6250 et se q.).
Section 5.2. Preservation of Records. Despite any document retention
policy to the contrary, Los Angeles shall preserve, for a minimum of three years,
all tests results relating to the potential impacts of the operation of Hyperion.
Section 6. Dispute Resolution. In the event that a dispute arises between the
parties hereto relating to potential impacts and mitigation relating to such impacts the
operation of Hyperion, either party can request in writing that the other party participate
in a non - binding mediation process subject to the protections afforded by California
Evidence Code Section 1152 and 1152.5. If the other party agrees in a written instrument
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within 30 days of the date it received the request for mediation from the party requesting
the mediation, then the parties shall mutually select a mediator and conduct and conclude
a mediation by the later of either 120 days from the date the mediation was requested or a
date mutually agreed to in writing by the parties. In the event the parties participate in a
mediation process, any and all applicable statute of limitations shall be tolled from the
date of the request for mediation until 30 days following the conclusion of the mediation
process. The parties participation or decision not to participate in a mediation process
shall not in any way act as a bar to either party asserting its equitable and legal rights
before any governmental entity or agency and/or a court of competent jurisdiction.
Section 7. Notices: Notice to the parties pursuant to this Agreement shall be sent
by first class mail certified receipt requested as follows:
City of Los Angeles:
Hyperion Plant Manager
City of Los Angeles
12000 Vista Del Mar
Playa Del Rey, California 90293
With Copy to:
Christopher M. Westhoff, Assistant City Attorney
City Attorney's Office, City of Los Angeles
1800 City Hall East
Los Angeles, California 90012
City of El Segundo:
Hyperion Mitigation Monitor
City of El Segundo
350 Main Street
El Segundo, California 90245
With Copy to:
City Attorney
City of El Segundo
350 Main Street
El Segundo, California 90245
Section 8. Amendment or Modification of Agreement. This agreement shall
only be amended in a written document properly executed by the parties hereto.
Section 9. Agreement not a Release. Nothing in this Agreement shall constitute
or be construed as a bar or release from any claim of whatsoever kind or nature, cause of
action, demand in law or equity that either party may currently have, if any, or may
acquire in the future, against the other party hereto.
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Section 10. Waiver. A failure to enforce any right that either party may possess
under this agreement shall not constitute an ongoing waiver of such or other right and
shall not cause a party to forfeit the right to enforce the same or other right that may arise
thereafter.
Section 11. Counterparts. This Agreement may be signed in counterparts and
will in such case be of the same force and effect as though the same original Agreement
had been originally executed by the parties hereto.
Section 12. No Presumption Drafter. Both parties had the opportunity to
participate in the drafting of this Agreement and it shall be interpreted as being jointly
drafted by the parties hereto.
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WITNESS THE EXECUTION OF THIS AGREEMENT ON THEU day of
VecfmS- , 200).
DATE: 12-131-z o a
Approved as to Form:
ROCKARD J. DELGADILLO
City Attorney
BY
DATE:
Attest:
MIKE CAREY
ul
Approved as to Form:
MARK D. HENSELY
City Att ey
Attest:
CINDY MORTESEN
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