CONTRACT 5009 Memorandum of Understanding CLOSEDAgreement No. 5009
MEMORANDUM OF AGREEMENT
BETWEEN
CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, LOS ANGELES
COUNTY FLOOD CONTROL DISTRICT, AND CITIES OF EL SEGUNDO
AND SANTA MONICA
REGARDING THE ADMINISTRATION AND COST SHARING OF
IMPLEMENTING THE COORDINATED INTEGRATED MONITORING
PROGRAM FOR JURISDICTIONAL GROUPS 2 AND 3 OF THE SANTA
MONICA BAY WATERSHED
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 City of Los Angeles, a municipal corporation;
the County of Los Angeles, a political subdivision of the State of California; the Los Angeles
County Flood Control District (LACFCD), a body corporate and politic; the City of El Segundo,
a municipal corporation; and the City of Santa Monica, a municipal corporation. Collectively,
these entities shall be known herein as "Parties" or individually as "Party ".
RECITALS
WHEREAS, the Regional Water Quality Control Board, Los Angeles Region ( "LARWQCB ")
adopted the National Pollutant Discharge Elimination System Municipal Separate Storm Sewer
System Permit No. R4- 2012 -0175 ( "MS4 Permit ") on November 8, 2012; and
WHEREAS, the MS4 Permit became effective on December 28, 2012 and requires that the
County of Los Angeles, the LACFCD, and 84 of the 88 cities (excluding Long Beach, Avalon,
Palmdale, and Lancaster) within Los Angeles County comply with the requirements of the MS4
Permit; and
WHEREAS, the MS4 Permit identified the Parties as permittees that are responsible for
compliance with the MS4 Permit requirements pertaining to Jurisdictional Groups 2 and 3 of the
Santa Monica Bay Watershed; and
WHEREAS, the Parties have submitted a draft Coordinated Integrated Monitoring Program
(CIMP) in accordance with the MS4 Permit for Jurisdictional Groups 2 and 3 of the Santa
Monica Bay watershed to the LARWQCB on June 28, 2014; and
WHEREAS, the Parties revised and resubmitted the draft CIMP to the LARWQCB on June 15,
2015, which was conditionally approved by the LARWQCB on July 10, 2015; and
WHEREAS, the Parties have agreed to collaboratively implement certain requirements of the
CIMP ( "Monitoring Services "); and
Agreement No. 5009
WHEREAS, the Monitoring Services include sample collection, in -situ measurements,
laboratory analyses, design and construction of automated water sampling stations, source
investigations, and water quality data reporting as provided in the CIMP, as well as the
preparation of Annual Reports for the MS4 Permit that are due in December 2017 and 2018; and
WHEREAS, the City of Los Angeles has the expertise and equipment to perform the Monitoring
Services consistent with the CIMP; and
WHEREAS, the Parties have agreed to cooperatively share and fully fund the estimated costs for
implementation of the Monitoring Services , as contained in Exhibit A of this Agreement; and
WHEREAS, the Parties have agreed to retain the City of Los Angeles to perform the Monitoring
Services on their behalf, the Parties have agreed to pay the City of Los Angeles for their share of
the estimated costs of the Monitoring Services, and the City of Los Angeles is willing to provide,
perform, and be reimbursed for such Monitoring Services on behalf of the Parties as indicated in
Exhibit A; and
WHEREAS, the City of Los Angeles may elect to use a professional services contract with a
consultant ( "Consultant ") to implement part or all of the Monitoring Services; and
WHEREAS, the Parties agree that each shall assume full and independent responsibility for
ensuring its own compliance with the MS4 Permit despite the collaborative approach of this
Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth herein,
the Parties do hereby agree as follows:
Section 1. Recitals. The recitals set forth above are fully incorporated as part of this
Agreement.
Section 2. Purpiose. The purpose of this Agreement is to cooperatively fund the
implementation and to coordinate the payment of the Monitoring Services.
Section 3. Cooperation. The Parties shall fully cooperate with one another to attain the
purposes of this Agreement.
Section 4. Volutit"'Iry Nature. This Agreement is voluntarily entered into for the
implementation of the Monitoring Services.
Section 5. Term. This Agreement shall become effective on the date of final execution
by the Parties and it shall remain and continue in effect until June 30, 2018.
Section 6. Cost Sharing of Monitoring Scrvic.e latio m tc lrx ctttiot ol" this Agr emcnt.
The Parties agree that any substantiated costs incurred by the City of Los Angeles for performing
Monitoring Services prior to the execution date of this Agreement be cost - shared under this
2
Agreement No. 5009
Agreement according to the amounts specified in Exhibit A and shall be included in the first
invoice.
Section 7. "1 he (Ity of l- os Angeles
a) C A nwto ng Set-vices. — The City of Los Angeles will perform the Monitoring
Services in accordance with the CIMP and its applicable provisions in the MS4
Permit. Any changes in the Monitoring Services as a result of new requirements of
the LARWQCB or unforeseen challenges in the field will require approval by all
Parties.
b) Water quality data reportin . — The City of Los Angeles will submit water quality
data to the LARWQCB as required by the MS4 Permit. In addition, the City of Los
Angeles will submit to the Parties the data used to prepare the reports. This data will
be transmitted electronically in a format that contains the table structure and syntax
agreed upon by the Parties, e.g., California Environmental Data Exchange Network
format.
c) Annual Reports. — The City of Los Angeles will prepare two Annual Reports for the
MS4 Permit on behalf of the Parties. The first Annual Report will be due to RWQCB
in December 2016 and will cover the reporting period July 2015 — June 2016. The
second Annual Report will be due to RWQCB in December 2017 and will cover the
reporting period July 2016 — June 2017. The City of Los Angeles will distribute draft
copies of the Annual Reports for review by all Parties prior to finalizing the reports
for submittal to the LARWQCB.
d) iL %LL)icirlg. - The City of Los Angeles will annually invoice the Parties as shown in
Table 4 and Table 5 of Exhibit A. The City of Los Angeles will credit the County of
Los Angeles the amounts shown in Table 5 of Exhibit A for performing trash
assessments on Venice Beach on behalf of the City of Los Angeles.
Section 8. The Parties agree:
a) Payment. — The Parties agree to pay the City of Los Angeles for the Monitoring
Services not exceeding the amounts shown in Table 4 of Exhibit A within sixty (60)
days of receipt of the invoice from the City of Los Angeles.
b) Documentation. — The Parties agrees to provide the City of Los Angeles at no cost
with all requested information and documentation that is available for release and
deemed necessary to perform the Monitoring Services by the City of Los Angeles.
c) The Parties shall allow reasonable access and entry to the City of Los Angeles or its
Consultant, on an as needed basis during the term of this Agreement, to their storm
drains, channels, catch basins, and similar properties to achieve the purposes of this
Agreement. Prior to entering any of a Party's facilities, the City of Los Angeles or its
Agreement No. 5009
Consultant shall obtain all necessary permits and provide that Party with a written
notice 72 hours in advance of entry.
d) The County of Los Angeles agrees to conduct trash and data collection on Venice
Beach on behalf of the City of Los Angeles and according to the procedures specified
in the City of Los Angeles Trash Monitoring and Reporting Program. Data analysis
and reporting will be the responsibility of the City of Los Angeles.
Section 9. Invoice and Payment.
a) L\L1tIIal_I'gnicnt. — Each Party shall pay the City of Los Angeles for its proportional
share of the estimated cost for Monitoring Services as shown in Table 4 of Exhibit A
within sixty (60) days of receipt of the invoice from the City of Los Angeles. The cost
estimates presented in Exhibit A have been agreed upon by all Parties, and are subject
to changes in the CIMP and pursuant to LARWQCB new requirements and
unforeseen challenges in the field. Any changes of annual invoices are subject to
sections 9(c) and 12(e) of this Agreement.
b) Invoice. — The City of Los Angeles will invoice the Parties as shown in Table 4 of
Exhibit A. The annual payments for the period of July 2015 — June 2018 will be
invoiced in January of each year starting January 2016 or upon the execution of this
Agreement, whichever is later.
c) .( . — The City of Los Angeles will notify the Parties a minimum of thirty
(30) days in advance of invoicing if actual expenditures for Monitoring Services are
anticipated to exceed the cost estimates contained in Table 1 of Exhibit A and obtain
written approval of such expenditures from all Parties. Upon approval of the
additional expenditures, the Parties agree to pay the City of Los Angeles for their
proportional share of these additional expenditures in the next annual invoice at an
amount not to exceed 10 percent of the original cost estimate for Monitoring Services
as shown in Table 4 of Exhibit A. The 10 percent contingency will not be invoiced,
unless actual expenditures exceed the original cost estimate for Monitoring Services.
Expenditures that exceed the 10 percent contingency will require an amendment of
this Agreement.
d) Reconciliation of this Agice -rent„ — The City of Los Angeles will provide an
accounting upon termination of this Agreement within 90 days of said termination.
At the completion of the accounting, the City of Los Angeles shall return any unused
portion of all funds deposited with the City of Los Angeles for variable costs within
180 days of said termination. Fixed costs in Exhibit A are not subject to
reconciliation. Subject to agreement by the City of Los Angeles, any funds which are
to be reimbursed to a Party may be reimbursed through credits towards future
invoices and agreements, if requested in writing by that Party. At the end of each
fiscal year, the City of Los Angeles will provide the Parties with a statement of the
actual expenditures.
11
Agreement No. 5009
Section 10. Indemnification.
a) Each Party shall indemnify, defend, and hold harmless each other Party, including its
special districts, elected and appointed officers, employees, and agents, from and
against any and all liability, including but not limited to demands, claims, actions,
fees, costs, and expenses (including attorney and expert witness fees), arising from or
connected with the respective acts of each Party arising from or related to this
Agreement; provided, however, that no party shall indemnify another party for that
party's own negligence or willful misconduct.
b) In light of the provisions of Section 895.2 of the Government Code of the State of
California imposing certain tort liability jointly upon public entities solely by reason
of such entities being parties to an agreement (as defined in Section 895 of said
Code), each of the Parties hereto, pursuant to the authorization contained in Section
895.4 and 895.6 of said Code, shall assume the full liability imposed upon it or any of
its officers, agents, or employees, by law for injury caused by any act or omission
occurring in the performance of this Agreement to the same extent that such liability
would be imposed in the absence of Section 895.2 of said Code. To achieve the
above stated purpose, each Party indemnifies, defends, and holds harmless each other
Party for any liability, cost, or expense that may be imposed upon such other Party
solely by virtue of said Section 895.2. The provisions of Section 2778 of the
California Civil Code are made a part hereof as if incorporated herein.
Section 11. Early Withdrawal or Termination of Agreement.
a) Each Party may withdraw from this Agreement for any reason, in whole or part, by
giving the other Parties thirty (30) days written notice thereof. The withdrawing Party
shall remain wholly responsible for its proportional share of the cost that was incurred
up to the date of withdrawal. Completed work shall be owned by the Party or Parties
who fund the completion of such work. Rights to uncompleted work by the
Consultant still under contract will be held by the Party or Parties who fund the
completion of such work.
b) The City of Los Angeles shall notify in writing all Parties within fourteen (14) days
of receiving written notice from any Party that elects to withdraw from cost sharing of
Monitoring Services before the end of the term of this Agreement.
c) The City of Los Angeles may notify the LARWQCB of any Party that has elected to
withdraw from this Agreement before its end of the term. Each Party shall be
responsible for the payment of its own fines, penalties, and costs incurred as a result
of that Party's non - performance of the LIMP.
d) This Agreement may be terminated before the end of the term if agreed upon by all
Parties to this Agreement.
Section 12. General Provisions.
Agreement No. 5009
a) Notices. Any notices, bills, invoices, or reports relating to this Agreement, and any
request, demand, statement or other communication required or permitted hereunder
shall be in writing and shall be delivered to the Representative of the Party at the
address set forth in Exhibit B. Parties shall promptly notify each other of any change
of contact information, including personnel changes, provided in Exhibit B. Written
notice shall include notice delivered via email or fax. A notice shall be deemed to
have been received on (a) the date of delivery, if delivered by hand during regular
business hours, or by confirmed facsimile or by email; or (b) on the third (3) business
day following mailing by registered or certified mail (return receipt requested) to the
addresses set forth in Exhibit B.
b) Adnninastrariori. For the purposes of this Agreement, the Parties hereby designate as
their respective Party Representatives, the persons named in Exhibit B. The
designated Party Representatives, or their respective designees, shall administer the
terms and conditions of this Agreement on behalf of their respective Party. Each of
the persons signing below on behalf of a Party represents and warrants that they are
authorized to sign this Agreement on behalf of such Party.
c) Relationship of Parties. The Parties are and shall remain at all times as to each other,
wholly independent entities. No Party to this Agreement shall have power to incur
any debt, obligation, or liability on behalf of another Party unless expressly provided
to the contrary by this Agreement. No employee, agent, or officer of a Party shall be
deemed for any purpose whatsoever to be an agent, employee, or officer of another
Party.
d) Binding f 11 ct. This Agreement shall be binding upon and inure to the benefit of
each Party to this Agreement and their respective heirs, administrators,
representatives, successors and assigns.
e) Amendment. The terms and provisions of this Agreement may not be amended,
modified or waived, except by an instrument in writing signed by all non - delinquent
Parties. For purposes of this subsection, a Party shall be considered delinquent if that
Party fails to timely pay an invoice as required by Sections 8(a) and 9(a), or
withdraws pursuant to Section 11(a). Such amendments may be executed by those
individuals listed in Exhibit B or by a responsible individual as authorized by the
governing body of each Party.
f) Waiver. Waiver by any Party to this Agreement of any term, condition, or covenant
of this Agreement shall not constitute a waiver of any other term, condition, or
covenant. Waiver by any Party to any breach of the provisions of this Agreement
shall not constitute a waiver of any other provision, nor a waiver of any subsequent
breach or violation of any provision of this Agreement.
g) L Lixy_ 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
Con
Agreement No. 5009
between the Parties, venue in the state trial courts shall lie exclusively in the County
of Los Angeles.
h) o JLsc t�n�L ;a n r -�� l r,�lli,�� -w. 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.
i) 1:Intire _ Aga cenien , 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)aeveAmabiliC 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 constructed without the invalid, void, or
unenforceable provision(s).
k) "ctntrl aC 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.
1) 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. Any ambiguities shall be resolved in a collaborative manner by the Parties
and shall be rectified by amending this Agreement as described in Section 12(e).
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed on
their behalf, respectively, as follows:
7
CITY OF LOS ANGELES
Date:. 5-1,1111t, 1,17,11''('01, I'll -1 1 1 I'll, By:
ATTEST:
By:
Holly L.'Wolcott
City Clerk
APPROVED AS TO FORM:
Michael N. Feuer
City Attorney
By:
. . ..........
Laurie Utteiflvrg
Assistant City Attorney
Agreement No. 5009
8
Agreement No. 5009
1) 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. Any ambiguities shall be resolved in
a collaborative manner by the Parties and shall be rectified by amending this
Agreement as described in Section 12(e).
IN WITNESS WIEREOF, the Parties hereto have caused this Agreement to be executed on
their behalf, respectively, as follows:
CITY OF SANTA MONICA
Date: `
ATTEST:
By: j t7 jj` t1
Denise Anderson- Warren
City Clerk
APPROVED AS TO FORM:
By-
1`6 ,k Cole, City Manager
L,
CITY OF EL SEGUNDO
Date:.-,, By:
.[ ftl ty
ATTEST:
By:
- - ----------- -
.�l er
I Cler'
APPROVED AS TO FORM:
By: for
Car 4 D hell le
City Attorney L
Agreement No. 5009
10
Agreement No. 5009
LOS ANGELES COUNTY FLOOD CONTROL DISTRICT
By... .
�C&t�lC. 1Ull °�I Date
Chief Engineer
APPROVED AS TO FORM:
COUNTY T1' OF LOS ANGELES
;1 11 I'll-, 11-1
ter. (- JAJI., FAR: BlaR
Director of Public Works
APPROVED AS TO FORM:
MARY C. WICKHAM
County Counsel
By�w�
Deputy
Agreement No. 5009
Date
1
�i
Agreement No. 5009
EXHIBIT A
Total Estimated Cost - Sharing for Santa Monica Bay Jurisdictions 2 and 3 CIMP and
Invoicing by City of Los Angeles
Table 1. Total Estimated Cost of Monitoring Services.
(')Costs not including contingency.
(Z) Fixed costs are not subject to reconciliation.
(3) Cost estimates were developed in 2014 dollars.
(4) Costs incurred prior to execution of this Agreement are included in FY 2015 -16
Table 2. LACFCD Contribution.
13
Receiving Water Monitoring
$
248,500
$
171,000
$
171,000
$
590,500
Storm Water Outfall Monitoring
$
34,000
$
66,000
$
66,000
$
166,000
Non -Storm Water Outfall Monitoring
$
25,500
$
15,500
$
8,500
$
49,500
Reporting & Data Management"' (15 %)
$
46,000
$
38,000
$
37,000
$
121,000
Capital Expenses
$
139,000
$
206,000
$
6,000
$
351,000
Operation & Maintenance Expenses (6 %)
$
8,500
$
20,500
$
20,500
$
49,500
Contracted Services: Annual Report, Data
Tools, On -call support
$
210,000
$
206,000
$
206,000
$
622,000
Program Management (2) (5 %)
$
35,500
$
36,150
$
25,750
$
97,400
General Monitoring Cost (Sub - Total)
$
747,000
$
759,150
$
540,750
$2,046,900
Annual Escalation(') (2 %, 2 %, 2 %) (3)
$
14,940
$
30,500
$
33,098
$
78,538
Annual Monitoring Cost (Total)
$
761,940
$
789,650
$
573,848
$2,125,438
(')Costs not including contingency.
(Z) Fixed costs are not subject to reconciliation.
(3) Cost estimates were developed in 2014 dollars.
(4) Costs incurred prior to execution of this Agreement are included in FY 2015 -16
Table 2. LACFCD Contribution.
13
Table 3. Cost Allocation Formula and Total Cost for Other
City of Los Angeles
$ 38,097
18,934.64
$ 28,692
75.02
County of Los Angeles
130.40
$ 562,775
0.52
City of Santa Monica
$151,4
4987.47
$ 3,764
19.76
City of El segundo
1185.63
4.7
Totall 25,238.14
100
Ili Land areas as defined in the Santa Monica Bay J2 &3 CIMP.
$ 398,987
(2) Costs not including continizencv.
$ 34,021
Table 4. Invoicing 1)
LACFCD
City of Los Angeles
County of Los Angeles (3)
City of Santa Monica
City of El Segundo
of Los Angeles and Conti
Agreement No. 5009
Gies.
$1,514,778
$10,500
$398,987
$94,901
$2,019,166
(1) Invoicing will be in January of each fiscal year or upon the execution of this agreement, whichever
comes later.
(2) Contingency will not be invoiced unless there is a need for using it, as agreed upon by all Parties.
(3) These amounts are to be adjusted for credits for performing trash monitoring on Vencie Beach as
shown in table 5.
Table 5. Reimbursement Venice Beach monitoring and final invoices for the County of Los
Angeles.
County of Los Angeles annual CIMP costly $ 3,764 $ 3,901 $ 2,835 $ 10,500 $1,
Annual cost Venice Beach monitoring (2) $ 4,085 $ 2,163 $ 2,216 $ 8,464
Credit to County of Los Angeles (3) $ 3,764 $ 2,484 $ 2,216 $ 8,464
County of Los Angeles invoice (4) $ $ 1,417 $ 619 1 $ 2,036
(1) Costs from Table 4.
(2) Cost estimate for Venice Beach trash monitoring as provided by County of Los Angeles
(3) Amount that City of Los Angeles will credit County of Los Angeles by Fiscal Year. The balance of $321
owed to the County in FY 2015 -16 will be credited in FY 2016 -17.
(4) Final invoice of City of Los Angeles to County of Los Angeles by Fiscal Year.
NA
NA
NA
14
$ 38,097
$ 39,483
$ 28,692
$ 106,272
1 $10,6
$ 543,027
$ 562,775
$ 408,976
$1,514,778
$151,4
$ 3,764
$ 3,901
$ 2,835
$ 10,500
$1,0
$ 143,031
$ 148,233
$ 107,723
$ 398,987
$39,8
$ 34,021
$ 35,258
$ 25,622
$ 94,901
$9,4
Total
$ 761,9401
$ 7891,6501
$ 573,848
1 $2,125,438
1 $212,5
(1) Invoicing will be in January of each fiscal year or upon the execution of this agreement, whichever
comes later.
(2) Contingency will not be invoiced unless there is a need for using it, as agreed upon by all Parties.
(3) These amounts are to be adjusted for credits for performing trash monitoring on Vencie Beach as
shown in table 5.
Table 5. Reimbursement Venice Beach monitoring and final invoices for the County of Los
Angeles.
County of Los Angeles annual CIMP costly $ 3,764 $ 3,901 $ 2,835 $ 10,500 $1,
Annual cost Venice Beach monitoring (2) $ 4,085 $ 2,163 $ 2,216 $ 8,464
Credit to County of Los Angeles (3) $ 3,764 $ 2,484 $ 2,216 $ 8,464
County of Los Angeles invoice (4) $ $ 1,417 $ 619 1 $ 2,036
(1) Costs from Table 4.
(2) Cost estimate for Venice Beach trash monitoring as provided by County of Los Angeles
(3) Amount that City of Los Angeles will credit County of Los Angeles by Fiscal Year. The balance of $321
owed to the County in FY 2015 -16 will be credited in FY 2016 -17.
(4) Final invoice of City of Los Angeles to County of Los Angeles by Fiscal Year.
NA
NA
NA
14
Agreement No. 5009
10:/521 _i
Santa Monica Bay Jurisdictional Groups 2 and 3
Party Representatives
1. City of Los Angeles
Watershed i iection Divisil
2. County of Los Angeles,
Department of Public Works
Watershed Management Division, 11th floor
900 South Fremont Ave.
Alhambra, CA 91803 -1331
Party Representative: Paul Alva
PALVA @dpw.lacounty.org Phone No.: (626) 458 -4325
Fax: (626) 457 -1526
3. Los Angeles County Flood Control District Department
Department of Public Works
Watershed Management Division, 11th Floor
900 South Fremont Ave.
Alhambra, CA 91803 -1331
Party Representative:Angela George AGEORGE @dpw.lacounty.org
Phone No.: (626) 458 -4300
Fax: (626) 457 -1526
4. City of Santa Monica
Office of Sustainability & the Environment
1717 4th Street, Suite 100
Santa Monica, CA 90401
Party Representative: Neal Shapiro, Urban Runoff Management Coordinator
Phone No.: (310) 458 -8223
Fax: (310) 393 -1279
City of El Segundo, Public Works
350 Main Street
El Segundo, CA 90245
Party Representative: Lifan Xu
15
Agreement No. 5009
Phone No.: (310) 524 -2368
16