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CONTRACT 2674 OtherENVIRONMENTAL LITIGATION SETTLEMENT AGREEMENT BETWEEN THE CITY OF LOS ANGELES AND THE CITY OF EL SEGUNDO This document is an agreement between the City of Los Angeles ( "Los Angeles ") and the City of El Segundo ( "El Segundo ") (collectively, the "Cities" or "Parties ") implementing the settle- ment of litigation between the cities with respect to the environ- mental effects of the construction and operation of the Hyperion Wastewater Treatment Plant ( "Hyperion" or "Plant "). This document, and its companion document, the Mitigation Monitoring Implementa- tion Plan ( "MMIP ") implements the Mitigation Monitoring Program prepared by the City of Los Angeles pursuant to the requirements of the California Environmental Quality Act ( "CEQA ") for Hyperion. This Agreement is intended to be an attachment to a Stipulation of the Parties in the federal court case of United States. et al— , v. City of Los Angeles. et aL, Case No. CV 77- 3047-HP (C.D., California) (the "Federal Lawsuit ") which, among other things, is intended to settle their litigation in two cases: The City of El Segundo v. The City of LOS Angeles, Los Angeles Superior Court Case No. BC- 022340 (the "CEQA Lawsuit ") and The City of El Segundo v. The City of Los Angeles, Los Angeles Superior Court Case No. SWC- 112861 (the "Nuisance Lawsuit "). This document may be referred to as the "ENVIRONMENTAL LITIGATION SETTLEMENT 4775.2 -1- o.9‘,7 Ii. 116 AGREEMENT BETWEEN THE CITY OF LOS ANGELES AND THE CITY OF EL SEGUNDO" or "Agreement." 1. PURPOSE: 1.1 To reach the purposes described above, the Parties agree that their overall intent in executing this Agreement is to fully cooperate in mitigating the adverse environmental impacts associated with the upgrade and operation of the wastewater treatment processes at Hyperion to the maximum extent possible consistent with applicable local, state and federal laws. The Parties intend to use consensussproblem solving, to the maximum extent practicable, to achieve the Parties' primary goal of mitigating the adverse environmental consequences of the upgrade and the operation of Hyperion. IstiA ‘44ribt . (ii tr 1.2 The general purposes of this Agreement are to: (a) Ensure that appropriate mitigation action is taken as necessary to protect the public health, welfare and the environment from the effects of construction and operation of Hyperion. (b) Establish a procedural framework and schedule for developing, implementing and monitoring mitigation actions at the Plant in accordance with applicable federal, state and local law and other applicable requirements, and consistent to the maximum extent possible with the priorities, guidelines, criteria, and regulations contained in applicable environmental laws. (c) Facilitate cooperation, exchange of information and participation of the Parties in such mitigation actions. 4775 2 -2- (d) Ensure the adequate assessment of impacts to the environment, including the air. (e) Recognize and resolve conflicts between the Parties with respect to the mitigation of environmental impacts associated with the construction and operation of Hyperion, in accordance with this Agreement and local, state and federal environmental laws. 1.3 This Agreement and the MMIP are intended to: (a) Mitigate the risk to the public health or welfare or the environment caused by the release or threatened release of pollutants and contaminants from the Plant. (b) Provide for 'Participation by E1 Segundo in the initiation, development, selection and implementation of mitigation measures to be undertaken at the Plant; including the review of all Ag 4yibbotdra/41444 i a AO reports, and to preserve El Segundo's right to enforcement of applicable federal, state or local laws pursuant to this Agreement. (c) Identify the mitigation actions to be taken. (d) Implement the selected mitigation measures in accordance with applicable local, state and federal law. (e) Assure compliance, through this Agreement, with local, regional, state and federal environmental laws and regulations for matters covered herein. (f) Coordinate mitigation measures consistent with the mission of the Plant in wastewater processing and reclamation. (g) Provide for operation and maintenance of any mitigation measures selected and implemented pursuant to this 4775.2 -3- Agreement. 2. PARTIES: 2.1 The Parties to this Agreement are the City of Los Angeles and the City of El Segundo, California, municipal corpo- rations under the law of the State of California. The terms of the Agreement shall apply to and be binding upon the Parties, their officers, employees, agents and contractors. The Parties shall notify their agents, employees and contractors of the existence of this Agreement. 2.2 This Agreement shall be enforceable against the Parties to this Agreement. This Agreement shall not be construed as an agreement to indemnify any person or entity. 2.3 Each Party shall be responsible for ensuring that its officers, agents, employees and contractors comply with the terms and conditions of this Agreement. 3. DEFINITIONS: 3.1 "El Segundo" shall mean the City of El Segundo and its officers, agents, employees and contractors. 3.2 "Los Angeles" shall mean the City of Los Angeles and its officers, agents, employees and contractors. 3.3 "Meeting ", in regard to Mitigation Monitors, shall mean an in- person discussion at a single location or a conference telephone call of all Mitigation Monitors. A conference call will 4775.2 -4- suffice for an in- person meeting on the agreement of the Mitigation Monitors. 3.4 "MMIP" shall mean the Mitigation Monitoring Implementation Plan, which addresses impacts and mitigation efforts, including, but not limited to the following: dust and erosion, seismic events, hazardous waste and contaminated ground- water encountered at the site, sensitive habitats and species, air emissions, odor evaluation reports and plans, noise, vibration, light and glare, night lighting, recreational facilities, plant upsets, protected cultural resources, cumulative impacts with related projects, and the impacts associated with population growth. 3.5 "Monthly MMIP Status Report" shall mean a monthly report prepared by the Los Angeles Mitigation Monitor which reports on the status of each of the environmental factors in the MMIP. 3.6 "Operation and maintenance" shall mean activities required to maintain the effectiveness of the mitigation measures employed at the Plant. 3.7 "Plant" or "Hyperion" shall mean the Hyperion Waste- water Treatment Plant. 3.8 "Plant Upgrade" shall mean the work required to bring Hyperion into compliance with the requirements of full secondary treatment as set forth in the Amended Consent Decree filed in the Federal Lawsuit. 4775.2 -5- 4. MITIGATION MONITORING IMPLEMENTATION: 4.1 The Parties agree to perform the tasks, obligations and responsibilities described in the MMIP, attached to this Agree- ment, and, by this reference incorporated into this Agreement consistent to the maximum extent possible with the priorities, guidelines and criteria of this Agreement. 4.2 Los Angeles agrees to undertake, fully implement and report on the status of the implementation of the mitigation measures called for in the MMIP with the cooperation of El Segundo as called for in the MMIP and this Agreiement. 5. MITIGATION MONITORS: 5.1 Los Angeles and El Segundo shall each designate a Mitigation Monitor and such alternates as may be appropriate (each hereinafter referred to as Mitigation Monitor) for the purpose of overseeing and monitoring the implementation of the MMIP and this Agreement. Each Party may replace its Mitigation Monitor at any time. The other Mitigation Monitor shall be notified in writing when Mitigation Monitors are changed. 5.2 In addition to the formal notice provisions set forth in Section 16, NOTICES, to the maximum extent possible, communications between Los Angeles and E1 Segundo concerning the MMIP and this Agreement shall be directed through the Mitigation Monitors. 5.3 Los Angeles has ultimate responsibility for its compliance with the MMIP and this Agreement. The Mitigation 4775.2 -6- Monitors shall cooperate in the mitigation monitoring at the Plant, and off -site as may be appropriate. 5.4 The authority• of the Mitigation Monitors shall include, but is not limited to: (a) Monitoring, sampling, inspecting and otherwise ensuring that construction work is performed and Plant operations are conducted in accordance with the terms of the MMIP; (b) Observing, videotaping, recording and photo- graphing Plant operations and construction work as they deem appropriate; (c) Reviewing records, ;files, plans and other docu- ments relevant to Plant operations and construction work, subject to the limitations set forth in Section 9, RELEASE OF RECORDS; (d) Determining the form and specific content of the Mitigation Monitors meetings and of the Monthly MMIP Status Reports as set forth in.Section 3.5, above; (e) Recommending and requesting minor field modifications to the work to be performed pursuant to the "MIP or in techniques, procedures, or design utilized in carrying out the MMIP; and (f) Informing responsible construction and operations managers of the need for changes in construction and operations necessary to comply with the terms of the MMIP and this Agreement. 5.5 Any activities of Los Angeles or its employees, agents or contractors which are contrary to the MMIP or this Agree- ment, or to decisions of the Dispute Resolution Committee (DRC) , 4775 2 -7- ..� i� the Senior Dispute ResolutionllCommittee (SDRC) or the Referee shall i`1 • V ' be ordered halted by the Pro ect Manager upon notification by the v Los Angeles Mitigation Monitcr. 5.6 The Los Angeles Mitigation Monitor may initiate minor field modifications to assure consistency with the MMIP, provided that the El Segundo Mitigation Monitor is notified in a timely manner. The El Segundo Mitigation Monitor may propose minor field modifications to assure consistency with the MMIP, subject to approval by the Los Angeles Mitigation Monitor. The Los Angeles Mitigation Monitor shall make :a contemporaneous record of all such minor field modifications, notifications, and approvals in a written log, and a copy of the log entry will be provided as part of the next Monthly MMIP Status Report. 5.7 The Los Angeles Mitigation Monitor shall be responsible for day -to -day field mitigation monitoring activities at the Plant. The Los Angeles Mitigation Monitor or other designated representative of Los Angeles shall be present at the Plant or reasonably available to observe the effectiveness of mitigation monitoring measures at the Plant pursuant to the MMIP. 5.8 The Mitigation Monitors shall be reasonably available to consult on matters which are the subject of the MMIP and this Agreement and shall make themselves available to each other during the term of this Agreement. The absence of the El Segundo or Los Angeles Mitigation Monitors from the Plant shall not be cause for work stoppage under this Agreement. 5.9 Mitigation Monitors shall meet at least monthly to review the status and effectiveness of the MMIP. At least one week 47752 -8- prior to each scheduled Monthly MMIP Status Meeting, the Los Angeles Mitigation Monitor will provide to the El Segundo Mitiga- tion Monitor, and other agencies as appropriate, a draft agenda and any relevant reports to be discussed at the Monthly MMIP Status Meeting. Other meetings shall be held more frequently upon request by either Mitigation Monitor. 5.10 Following each Monthly MMIP Status Meeting, the Los Angeles Mitigation Monitor shall be responsible for preparation of a Monthly MMIP Status Report, addressing the environmental effects and mitigation measures addressed by the MMIP. A copy'shall be furnished to the E1 Segundo Mitigation Monitor and other agencies as appropriate. • The Monthly MMIP Status Report shall include copies of, or, as the Mitigation Monitors shall agree, shall incorporate by reference, all documents discussed at the Monthly MMIP Status Meeting. The Los Angeles Mitigation Monitor shall send to the El Segundo Mitigation Monitor, and other agencies as the Mitigation Monitors shall agree, (a) within ten (10) business days after the meeting all such documents not previously provided, if requested by the El Segundo Mitigation Monitor and (b) within twenty -one (21) calendar days after Monthly Meetings, the Monthly MMIP Status Reports. El Segundo and any other agency as appropriate, shall have five (5) business days to submit comments on the Monthly MMIP Status Report to the Los Angeles Mitigation Monitor. If no comments are received by the Los Angeles Mitigation Monitor, the report shall become final. 4773.2 -9- In addition to the Monthly MMIP Status Report, the Los Angeles Mitigation Monitor shall be responsible for transmit- ting to El Segundo, through its Mitigation Monitor, the following reports: (a) Weekly status reports prepared by the City of Los Angeles Hyperion Construction Division setting forth the current status of all ongoing construction; (b) Monthly status reports prepared by the City of Los Angeles Hyperion Construction Division setting forth the current status of all ongoing construction; (c) Hyperion Treatment Plant Monthly Report prepared by Los Angeles; 'and (d) All other reports, regardless of the agency to which addressed, but including the SCAQMD, the RWQCB, the United States and California EPA's, which address Plant operation and con- struction shall be available for review and copying by the El Segundo Mitigation Monitor. The Parties contemplate that all reports relevant to the environmental effects of the construction and operation of the Plant, shall be transmitted through the Mitigation Monitors. The foregoing reports are in lieu of, or implement other agreements for the furnishing of all other reports. All requests by El Segundo to Los Angeles for such documents shall be transmitted through the Mitigation Monitors. 5.11 The Parties expect some of the environmental impacts of plant construction and operation to be the subject of complaints by residents of the City of El Segundo. Los Angeles shall maintain 4775.2 -10- a telephone sing a telephone number which is local call from the City of El Segundo, to receive telephone complaints. The complaint hotline shall be answered not later than the fifth ring. The Los Angeles Mitigation Monitor shall respond to all telephone complaints orally, or if preferred, in writing within 2 working days. All telephone complaints shall be logged with a description of the nature of the complaint and a description of any oral response given. The El Segundo Mitigation Monitor shall have access to the telephone complaint logs. All written complaints received by Los Angeles shall be responded to within 2 working days in writing by the Los Angeles Mitigation Monitor. A copy of all written complaints, and .Los Angeles' written responses to the written or telephone complaints , shall be available for review -by the El Segundo Mitigation Monitor. The El Segundo Mitigation Monitor may comment on the adequacy of a response by the Los Angeles Mitigation Monitor. If the El Segundo Mitigation Monitor submits a written comment to the Los Angeles Mitigation Monitor regarding the adequacy of a response to a complaint by a resident of El Segundo, the Los Angeles Mitigation Monitor shall respond, in writing, within 5 working days. The El Segundo Mitigation Monitor may make the adequacy of the reply by the Los Angeles Mitigation Monitor to a complaint by a resident of E1 Segundo the subject of the dispute resolution process as set forth in the Agreement. 4775.2 6. ACCESS TO FACILITY: 6.1 The El Segundo Mitigation Monitor or its authorized representatives shall be allowed to enter the Plant at reasonable times for purposes consistent with the MMIP and this Agreement, subject to any reasonable safety requirements. Such access shall be for the purpose of reviewing the progress of Los Angeles in carrying out the terms of the MMIP and this Agreement. Los Angeles shall be responsible for ensuring access to the Plant. 6.2 Los Angeles shall honor all reasonable requests for access by the El Segundo Mitigation ,Monitor, conditioned upon presentation of proper credentials. The Los Angeles Mitigation Monitor or designee shall provide briefing information, coordinate access with provision of any required escort to restricted or con- trolled- access areas, arrange for passes and coordinate any other access requests which arise. 6.3 Before visiting the Plant, the El Segundo Mitigation Monitor shall provide reasonable notice (which shall, if practical, be forty -eight (48) hours advance notice) to the Los Angeles Mitigation Monitor. 6.4 If the E1 Segundo Mitigation Monitor requests access to observe a sampling event being conducted pursuant to the MMIP or this Agreement, and access is denied or sufficiently limited so as to deny the El Segundo Mitigation Monitor a reasonable opportunity to observe such sampling, Los Angeles agrees to reschedule or postpone such sampling if the El Segundo Mitigation Monitor so re- quests, until a mutually agreeable time when the requested access is allowed. 4775.2 -12- 6.5 To the extent the activities pursuant to the MMIP and this Agreement must be carried out on other than City of Los Angeles property, Los Angeles shall use its best efforts to obtain access agreements from the owners which shall provide reasonable access for Los Angeles and El Segundo representatives. Los Angeles may request the assistance of El Segundo in obtaining such access, and upon such request, El Segundo will use its best efforts to obtain the required access. In the event that Los Angeles is unable to obtain such access agreements, Los Angeles shall promptly notify El Segundo. 6.6 With respect to non-City of Los Angeles property on which monitoring devices,, pumping ,wells, or other devices are to-be located, Los Angeles shall use its best efforts to ensure that any access agreements shall provide for the continued right of entry for all Parties for the performance of such activities. 7. PREPARATION AND REVIEW OP DOCUMENTS AND REPORTS: 7.1 Los Angeles shall prepare and transmit documents in accordance with this Agreement. Final draft documents shall include target dates for preparation of final documents. 7.2 Documents to be Prepared. (a) Los Angeles shall prepare and transmit final drafts of the following documents to El Segundo'for review and comment: 4775.2 (1) Fugitive Dust and Erosion Control Plan (FDECP); -13- (2) Design and construction plans signed by the City Engineer; (3) Emergency Preparedness Plan; (4) Emissions Inventory Plan; (5) VOC Emissions Inventory Report; (6) Odor Evaluation Report; (7) Plan for Controlling Odors During Routine Scheduled Maintenance of Air Emissions Control Devices and Digesters; and (8) Master SFhedule for Construction. (b) Although El Segundo may comment on the final drafts for the documents listed above, final draft documents shall not be subject to the dispute resolution process as set forth in this Agreement. Certain final documents, as specified in the MMIP, shall be subject to the dispute resolution process as set forth in this Agreement. 7.3 Review and Comment on Final Draft Documents. (a) Unless the Parties agree in writing to another time period, all final draft documents shall be subject to a fourteen (14j. day period for review and comment by El Segundo. Review of any final draft document by E1 Segundo may address all aspects of the final draft document (including completeness) and may include, but not be limited to, technical evaluation of any aspect of the final draft document, conformance to federal, state and local law, and consistency with any pertinent guidance or policy issued by Los Angeles, El Segundo or any other agency with jurisdiction over the matter. 4775.2 -14- Comments by El Segundo shall be provided with ade- quate specificity so that Los Angeles may respond to the comment and, if appropriate, make changes to the final draft document. Comments shall refer to any pertinent sources of authority or references upon which the comments are based and, upon request of Los Angeles, El Segundo shall provide a copy of the cited authority or reference. In cases involving complex matters, El Segundo may extend the fourteen (14) day comment period for an additional seven (7) days by written notice to the Los Angeles Mitigation Monitor prior to the end of the fourteen (14) day period. In appropriate circumstances, this time period maybe further extended by the agreement of the Parties. On or.before the close of the comment period, El Segundo shall transmit its written comments to the -Los Angeles Mitigation Monitor. To expedite the review process, Los Angeles, if requested to do so, shall make an oral presentation regarding the final draft document before the close of the comment period. Representatives of Los Angeles shall make themselves readily available to El Segundo during the comment period for purposes of informally responding to questions and comments on final draft documents. Oral comments made during such discussions need not be the subject of a written response by Los Angeles. Failure by El Segundo to object in writing to all or any portion of a final draft document shall be regarded as a waiver of the objection. (b) If either Party requests, within seven (7) days following the close of the comment period on a final draft docu- 4775.2 -15- went, the Parties shall hold a meeting to discuss all comments re- ceived. (c) When a final document is released by Los Angeles, Los Angeles shall also provide written responses to all written comments: While the resulting final document shall be the responsibility of Los Angeles, it shall be the product of consensus to the maximum extent possible 7.4 Except as otherwise provided in the MMIP, the dispute resolution procedures set forth in this Agreement shall be available to the Parties for the resolution of disputes as to final documents. 7.5 Final documents shall not be subject to the dispute resolution process unless that process is invoked within fourteen (14) days of the release of the final document. If the dispute resolution process is invoked, the document shall become final at the completion of that process, should the Los Angeles position be sustained. If the Los Angeles position is not sustained in the dispute resolution process, Los Angeles shall prepare, within not more than sixty (60) days, a revision of the final document which conforms to _the results of dispute resolution. In appropriate circumstances, the time period for this revision period may be extended by agreement of the Parties. 7.6 When a document becomes final pursuant to subsection 7.5, above, either Party may seek to modify the document or propose the preparation of a new final document only as provided in sub- paragraphs (a) and (b) below. 47752 -16- (a) Either Party may seek to modify a document after completion, or propose the preparation of an additional (new) final document, by submitting a written request to the Mitigation Monitor of the other Party. The request shall specify the nature of the requested modification or additional document, and how the request is appropriate under subsections 7.6(b)(1) and (2) below. (b) In the event that agreement is not reached by the Mitigation Monitors on the need for the modification of an existing final document, or the preparation of a new document, either Party may invoke dispute resolution, to the extent permitted by the MMIP and subsection 7.5, to determine if such modification of an existing document, or preparation of a new document shall be required. Modification. of a document, or preparation of a new document, shall be required only uporra showing that: (1) The requested modification or new document is based on new information; and (2) The requested modification or new document could be of significant assistance in evaluating and mitigating impacts on public health or the environment. (c) Nothing in this Section shall alter El Segundo's ability to request the performance of additional work which was not contemplated by the MMIP or this Agreement. Los Angeles' obligation to perform such work under -the MMIP or this Agreement must be established by either a modification of a document or approval of a new document pursuant to this Agreement. 8. DATA AND DOCUMENT AVAILABILITY: 4775.2 -17- 8.1 Each Party shall make all sampling results, test results or other data or documents generated through the implementation of the MMIP rnd this Agreement available to the other Party. All test and sampling results shall be made available within ninety (90) days of collection. 8.2 A Mitigation Monitor shall notify the other Party's Mitigation Monitor not less than ten (10) days in advance of any nonrecurring air sample collection. In the case of routine, recurring or continuous sampling programs conducted by Los Angeles, this sample collection notification requirement shall be satisfied by Los Angeles providing a schedule iDdicating the type, nature, location and frequency of:the sample collection program to the El Segundo Mitigation Monitor. If it is not possible to provide 10 days prior notification, the sampling Party's Mitigation Monitor shall notify the other Party's Mitigation Monitor as soon as possible after becoming aware that samples will be collected. Each Party shall allow, to the extent practicable, split or duplicate samples to be taken by the other Party or its authorized repre- sentatives. A Party desiring to collect split or duplicate samples shall inform the sampling Party before the time of sample collec- tion. Each Party receiving split or duplicate samples shall, on request, provide the sampling Party with its chain of custody documents relating to such sample. The Mitigation Monitors may agree to modify the sample collection notification procedures set forth in this Section. 9. RELEASE OF RECORDS: 4775.2 -18- 9.1 The Parties may request of one another access to or a copy of any record or document relating to the MMIP and this Agreement. If the Party which is the subject of the request (the originating Party) has the record or document, that Party shall provide access to or a copy of the record or document; provided, however, that no access to or copies of records or documents need be provided if they are subject to claims of confidentiality because of attorney - client privilege, attorney work product, deliberative process, or confidential commercial information. 9.2 Records or documents identified by the originating Party as confidential pursuant to the California Public Records Act, S 6250, SI 5.1 2. of the California Government Code, may be released to the requesting Party, provided the requesting Party states in writing that it will not release the record or document to the public without prior approval of the originating Party. Records or documents which are provided to the requesting Party and which are not identified as confidential may be made available to the public without further notice to the originating Party. 10. PRESERVATION OP RECORDS: Despite any document retention policy to the contrary, Los Angeles shall preserve, for a minimum of three years, all test results including but not limited to air toxics tests, which relate to the MMIP and this Agreement. After this three year period, Los Angeles shall notify El Segundo at least 45 days prior to destruction of any such documents. Upon request by El Segundo, Los Angeles shall make available such records or copies of any such 4775.2 -19- records, unless withholding is authorized and determined appro- priate by law. 11. DISPUTE RESOLUTION: 11.1 Except as specifically set forth elsewhere in this Agreement, if a dispute arises under this Agreement, the procedures of this Section are the exclusive remedies of the Parties. Either Party may invoke this dispute resolution procedure. 11.2 Prior to invoking the dispute resolution process, a disputing Party shall request informal dispute resolution among the Mitigation Monitors and /or their immediate supervisors. During informal dispute resolution, the Parties shall meet as many times as are necessary to discuss and attempt resolution of the dispute. 11.3 Within fourteen (14) days (or such longer period as the Parties may agree) after written notification to the other party that a matter is in dispute, the disputing Party shall submit to the Dispute Resolution Committee (DRC) a Written Statement of Dispute, setting forth the nature of the dispute, the disputing Party's position with respect to the dispute and the technical, legal or factual information the disputing Party is relying upon to support its position. The disputing Party shall serve a copy of the Written Statement of Dispute upon the other Party when the Written Statement of Dispute is submitted to the DRC. Following submission of a Written Statement of Dispute to the DRC, the other Party shall have five (5) days to file a Response with the DRC. 11.4 The DRC'shall serve as a forum for resolution of disputes that are not resolved by informal dispute resolution. Each 4775.2 -20- Party shall designate one person and an alternate to serve on the DRC. Each person designated by Los Angeles as a member or alternate member of the DRC shall be employed at the management level. The Los Angeles Representative shall be the Director of the Bureau of Sanitation or the City Engineer or their designee. The El Segundo representative is the Chair of the City Council's Environment Committee, or the Chair's designee. Written notice of any designation of a representative shall be provided to the other Party in writing not later than the start of the meeting of the DRC. 11.5 Commencing on the sixth working day following the receipt of a Written Statement of°Dispute, the DRC shall have seven (7) days, which may be extended upon .the written agreement of the Parties, to unanimously resolve the dispute. If the DRC is unable to unanimously resolve the dispute within the seven (7) day period, or within the agreed upon extension period, the Written Statement of Dispute, and the Response, shall be immediately forwarded to the Senior Dispute Resolution Committee (SDRC) for resolution. 11.6 The SDRC shall serve as the forum for resolution of disputes for which agreement has not been reached by the DRC. Los Angeles' representative on the SDRC is the Mayor of Los Angeles or the Mayor's designee. El Segundo's Representative is the Mayor of El Segundo or the Mayor's designee. 11.7 Following elevation of a dispute to the SDRC upon receipt of the Written Statement of Dispute and the Response, the SDRC shall have seven (7) days, which may be extended upon the 4775.2 -21- agreement of the Parties in writing, to unanimously resolve the dispute and issue a written declaration. 11.8 If the SDRC is unable to unanimously resolve the dispute within this seven (7) day period, or the additional agreed upon extension period, the Written Statement of Dispute and the Response shall be immediately forwarded to a Referee appointed pursuant to Rule 53 of the Federal Rules of Civil Procedure. (If a Referee has not been appointed, the parties shall proceed to select a Referee as set forth in the Stipulation.) Either Party may issue a request to compel reason- able document production from the other Party. Disputes concerning the scope of document production and enforcement of document requests shall be subject to agreement between the Parties, or if agreement is not reached within fourteen (14) days of the request, or any longer period agreed upon by the Parties with the approval of the Referee, then by disposition by order, of the Referee. Neither Party may communicate separately with the Referee except for communications made to schedule a hearing or request a continuance. The Referee shall conduct a hearing on the matter in dispute and issue a written report containing findings of fact and conclusions of law. Before filing the Report, the Referee shall submit a draft to counsel for the Parties for the purpose of receiving their suggestions. The Referee shall have the authority to fix or apportion reasonable attorneys' fees and costs, including costs of experts, and Referee's fees and costs. 4775.7 -22- The exclusive venue shall be in the County of Los Angeles. 11.9 The pendency of any dispute under this Section shall not relieve either Party's responsibility to carry out its responsibilities under the MMIP and this Agreement. 11.10 Within twenty -one (21) days of resolution of a dispute pursuant to the procedures specified in this Section, or a date as agreed upon by the Parties or as ordered by the Referee, Los Angeles or El Segundo as is appropriate, shall incorporate the resolution and final determination into the appropriate plan, schedule or procedures. 11.11 Resolution of a dispute pursuant to this Section is a final resolution, except for review. pursuant to Rule 53 of the Federal Rules of Civil Procedure. 11.12 Either Party may declare a matter in dispute to be of such urgency as to require the immediate attention of the SDRC. Upon declaration that the matter in dispute is an urgent matter requiring the immediate attention of the SDRC, the dispute shall be submitted directly to the SDRC, which shall have five (5) days to unanimously resolve the dispute, or to unanimously declare it to be non - urgent, and return the matter to the DRC. In the event that the SDRC is unable to unanimously resolve the matter, and does not return the matter to the DRC, the SDRC shall forward the matter to the Referee, requesting that the Referee hear the matter on an expedited basis, unless the SDRC unanimously agrees that the matter should not be heard on an expedited basis. 4775 2 -23- 12. EMERGENCIES: If either Mitigation Monitor discovers or becomes aware of an emergency or other situation that may present a danger to public health, welfare or the environment at or near the Plant, that Mitigation, Monitor shall immediately orally notify the Mitigation Monitor of the other Party. 13. MITIGATION MONITORING EXPENSES: Los Angeles, as the operator of the Plant, the proponent of the Plant Upgrade and the entity :which selected the measures which, under CEQA, will require mitigation monitoring, desires to ensure that its mitigation monitoring program is verified and that it satisfies the requirements of CEQA and other environmental laws. El Segundo desires to ensure that the El Segundo Mitigation Monitor is able to all take steps reasonably necessary to protect El Segundo and its residents from the adverse environ- mental effects which are to be Monitored by the MMIP, and that El Segundo, through its Mitigation Monitor, can verify the effective- ness of the MMIP as it is being implemented. To this end, the Parties agree that the El Segundo Mitigation Monitor's reasonable and necessary "Mitigation Monitor- ing Expenses" as defined in this Agreement, shall be paid from monies in the "MMIP Verification Account" which is to be estab- lished by El Segundo's Fiscal Agent, and funded jointly by Los Angeles and El Segundo as set forth in this Agreement. 4775 2 -24- Los Angeles and El Segundo hereby authorize and direct their respective Fiscal Agents to make disbursements to the "MMIP Verification Account" as provided in this Agreement. 13.1 "Mitgation Monitoring Expenses" Defined. "Mitiga- tion Monitoring Expenses" means all of the El Segundo Mitigation Monitor's costs and expenses necessary or incident to reviewing and verifying the effectiveness of the MMIP, including the fees and expenses of architects, engineers, geologists, chemists, archaeolo- gists, biologists, aerologists, meteorologists, physicians and epidemiologists, and any other technical or scientific experts or consultants, including expenses of administration, supervision, inspection, testing, plan, and report review, fees and expenses of consultants, publication and printing, expenses and all other items of expense not elsewhere specified as may be necessary or incident to El Segundo's review and verification of the MMIP and any plans and reports prepared pursuant to the MMIP, and to the verification of the effectiveness of the MMIP. 13.2 "Authorized El Segundo Mitigation Monitor" Defined. Any Mitigation Monitor designated in writing by the City Council of El Segundo is an "Authorized El Segundo Mitigation Monitor" and, subject to the provisions of this Section, may execute Requisition Certificates:' 13.3 MMIP Verification Account: Establishment And Annual Supplementation. The Parties anticipate that El Segundo's annual expenses for Mitigation Monitoring, pursuant to this Agreement, will be One Hundred Seventy -Six Thousand, Three Hundred Dollars ($176,300.00). The Parties further agree that it is to the 4775 .2 -25- Parties' mutual benefit to share those expenses. Therefore, the Parties agree that, upon the effective date of this Agreement, and annually thereafter from the effective date of this Agreement, Los Angeles shall tender a warrant to El Segundo in the amount of One Hundred Thirty -Eight Thousand, One Hundred and Fifty Dollars, ($138,150.00), to be deposited by El Segundo's Fiscal Agent in the MMIP Verification Account. Upon the effective date of this Agreement, and annually thereafter from the effective date of this Agreement, El Segundo shall deposit the sum of Thirty -Eight Thousand, One Hundred and Fifty Dollars, ($38,150.00) in the MMIP Verification Account. The initial.deposit and the annual supple- ments shall be known as the "annual funds." The MMIP fiscal year shall run from the effective date of this Agreement to one year from that date. 13.4 Disbursements; Audits. The El Segundo Fiscal Agent is authorized to make disbursements from the MMIP Verification Account upon receipt of Requisition Certificates (in substantially the form attached as Exhibit "A ") signed by an Authorized El Segundo Mitigation Monitor: (a) Requesting payment of a specified amount of such monies and stating the name and address of the person, firm or agency to whom such amount shall be paid; (b) Describing in reasonable detail each item of Miti- gation Monitoring expenses for which payment is requested; and (c) Stating that each item for which payment is raFest ed is or was necessary and appropriate and is a proper charge against the MMIP Verification Account, that the amount requested 4775.7 -26- either has been paid or is justly due, and that the amount requested has not been the basis of any previous requisition from the MMIP Verification Account-.. All disbursements by the El Segundo Fiscal Agent from the MMIP Verification Account up to One Hundred Thousand Dollars ($100,000.00) in any MMIP fiscal year shall be drawn from annual funds tendered by Los Angeles. All disbursements by the El Segundo Fiscal Agent from the MMIP Verification Account in excess of One Hundred Thousand Dollars ($100,000.00) in any MMIP fiscal year, up to a maximum of One Hundred Seventy -Six Thousand, Three Hundred Dollars, ($176,300.00) shall be drawn in equal amounts from the funds tendered annually by Los Angeles and El Segundo. E1 Segundo shall maintain any and all ledgers, books of account, invoices, vouchers, cancelled checks, warrants, and other records or documents evidencing or relating to charges for services, or expenditures and disbursements charged to the MMIP Verification Account, for a minimum period of three (3) years, or for any longer period required by law, from the date of payment. Any records or documents pertaining to disbursements by El Segundo from the MMIP Verification Account shall be made available to Los Angeles for inspection or audit at any time during regular business hours, upon written request by Los Angeles. 13.5 El Segundo MMIP Verification Fund: Carryovers. Amounts not authorized by the El Segundo Mitigation Monitor in any MMIP fiscal year to be disbursed from annual funds in the MMIP Verification Account shall be carried over, and, subject to the requirement to certify the necessity of the expenses, may be autho- 4775.2 -27- rized by the El Segundo Mitigation Monitor for expenditure in the following or any subsequent lMIP fiscal year or years. Carryover funds may be authorized for expenditure in any MMIP fiscal year or years in which annual funds have been exhausted. 13.6 Expenditure Of Amounts In Excess Of E1 Segundo MMIP Verification Account: Agreement. If the El Segundo Mitigation Monitor determines that the expenditure of funds in excess of funds available in the El Segundo MMIP Verification Account is necessary to verify the effectiveness of the MMIP, and the Los Angeles Mitigation Monitor agrees, Los Angeles and El Segundo shall transfer the necessary funds to the El Segundo Fiscal Agent for deposit in the MMIP Verification Account. The Parties shall contribute such additional funds in a timely manner, in such respective amounts as they shall agree, depending on the verifica- tion effort to be funded.. 13.7 Funding Level Of .MMIP Verification Account: Annual Adjustment. The Parties' annual funding of the MMIP Verification Account shall be adjusted annually according to increases or decreases in the Engineering News Record Construction Cost Index for Los Angeles. 13:6 Funding Level Of MMIP Verification Account: Peri- odic Review. The Parties agree to review the level of funding of the El Segundo MMIP Verification Account on the third anniversary of the effective date of this Agreement, and annually thereafter, for the duration of this Agreement. The annual review may result in agreement to increase, decrease, or maintain unchanged, the level of annual funding for the MMIP Verification Account, and to 4775.2 -28- return any portion or all of the Parties' contributions to the MMIP Verification Account which they may agree are not required to be maintained in the MMIP Verification Account. If the Parties do not agree on increases or decreases in their respective annual contributions to, or to return to the Parties any portion of the MMIP Verification Account, then their respective annual contribu- tions, and the level of funding, shall remain unchanged. 13.9 Expenses of Environmental Agencies. Expenses of environmental agencies, such as the United States and California Environmental Protection Agencies, the U.S. Fish and Wildlife Service, the South Coast Air Quality Management District and the Regional Water Quality Control.,Board shall be borne by those agencies as part of their. environmental quality assurance missions, to the maximum extent permitted by law,., subject to any provision of law relative to the imposition of fees for cost recovery of agency expenses. All fees imposed by environmental or other agencies for permitting, inspection,.permits -to construct, permits to operate, plan review and all other fees of any kind related to the operation of the Plant or the Plant Upgrade shat. be the sole responsibility of Los Angeles, and not El Segundo. 13.10 Termination of Funding. The Parties agree that the obligation ttr fund the MMIP Verification Account shall terminate upon the earlier of either: (1) the Parties' termination of this Agreement and entering into a new operational mitigation monitoring agreement; or (2) certification by the agencies with jurisdiction that the Plant Upgrade has been completed, the Plant is operational, and that the Plant is in compliance with the require- 4775.2 -29- ments of Section D.2. of the MMIP (for the purpose of this Section only, the requirements of Section D.2.(d)(v) shall be deemed satisfied upon submittal of the Odor Evaluation Report with recommendations for facility -wide odorous emissions abatement or elimination by Los Angeles to El Segundo and the SCAQMD). If there is any dispute among the Parties that termination of funding of the MMIP Verification Account is justified under either of the grounds for termination as set forth above, either Party may make that issue the subject of the dispute resolution process as set forth in this Agreement. 14. MITIGATION MONITOR SELECTION: A two person panel made up of a representative of Los Angeles and a representative of E1 Segundo shall meet and select a slate of potential environmental consulting firms of not less than five companies. Firms desiring to be considered for inclusion on the list of firms to be forwarded to the El Segundo City Council shall submit a financial disclosure form indicating income from Los Angeles or El Segundo or any of their departments or agencies. The slate of recommendations from the panel shall be given to the El Segundo City Council. The El Segundo City Council alone shall make a final choice from the slate of recommendations as to which environmental consulting firm shall act as the El Segundo Mitiga- tion Monitor. The El Segundo City Council may, at its own discretion and at any time, choose to replace the environmental consulting firm acting as its Mitigation Monitor. If the El Segundo City 4773.7 -30- Council should so decide, a new two person panel shall make recommendations and a new Mitigation Monitor shall be chosen in the same manner as described above. 15. FORCE MAJEURE: Force Majeure shall mean any event arising from causes beyond the control of a Party that causes a delay in or prevents the performance of any obligation under the MMIP or this Agreement, including, but not limited to: (a) Acts of God; (b) Fire; 4775.2 (c) War or national emergency declared by the President or Congress and affecting the City of Los Angeles; _ (d) Insurrection; (e) Civil disturbance; (f) Explosion; (g) Unanticipated breakage or accident to machinery, equipment or lines of pipe despite reasonably diligent maintenance; (h) adverse weather conditions that could not be reasonably anticipated; (i )-- unusual delay in transportation; (j) restraint by court order or order of public authority; (k) inability to obtain, at reasonable cost and after exercise of reasonable diligence, any necessary authori- zations, approvals, permits, or licenses due to action or -31- inaction of any governmental agency or authority other than the City of Los Angeles; and (1) delays caused by compliance with applicable statutes or regulations governing contracting, procurement or acquisition procedures, despite the exercise of reason- able diligence. 16. NOTICES: 16.1 The Parties shall transmit documents, and'comments thereon, and all notices required herein by next day mail, hand delivery, or facsimile (followed. by an original via first class mail), or by certified mail if transmitted sufficiently ahead of the applicable deadline. Notifications shall be deemed effective upon receipt. 16.2 Notice to the Parties pursuant to the MMIP or this Agreement shall be sent to the addresses specified by the Parties. Initially these shall be as follows: TO THE CITY OF LOS ANGELES: Hyperion MMIP Mitigation Monitor City of Los Angeles 7660 West Imperial Highway Playa Del Rey, California 90293 4775.2 With Copy to: James K. Hahn, City Attorney, Christopher M. Westhoff, Assistant City Attorney -32- and; 1800 City Hall East 200 North Main Street Los Angeles, California 90012 Cox, Castle & Nicholson Attn: Edward C. Dygert 2049 Century Park East, 28th Floor Los Angeles, California 90067 TO THE CITY OF EL SEGUNDO: Hyperion MMIP Mitigation Monitor City of El Segundo 350 Main Street El Segundo, California 90245 With Copy to: City Attorney., City of El Segundo c/o Burke, Williams & Sorensen 611 West Sixth Street, 25th Floor Los Angeles, California 90017 16.3 All routine correspondence may be sent via first class mail to the above addressees. 17. COVENANT NOT TO SUE: In consideration for Los Angeles's compliance with the MMIP and this Agreement, and based on the information known to the 4775.2 -33- Parties or reasonably available on the effective date of this Agreement, Los Angeles and El Segundo agree that full compliance with the MMIP and this Agreement shall stand in lieu of any administrative, legal, and equitable remedies against Los Angeles available to El Segundo with regards to the subject matter of the MMIP and this Agreement. 18. CONTROLLING DOCUMENT: In case of any conflict between this Agreement and the MMIP, and any Conditional Use Permit'or other agreement entered into between El Segundo. and Los Angeles, the requirements and duties of this Agreement and the MMIP shall control. 19. OTHER CLAIMS: Nothing in this Agreement shall constitute or be construed as a bar or release from any claim, cause of action or demand in law or equity by or against any person, firm, partnership or corporation not a signatory to this Agreement. Unless specifi- cally agreed to in writing by the Parties, El Segundo shall not be held as a party to any contract entered into by the Los Angeles to implement the requirements of the MMIP or this Agreement. 20. EFFECTIVE DATE OF AGREEMENT: This Agreement shall not take effect until the Stipula- tion of the Parties is approved by the Court in the federal court 4775.2 -34- case of United States, et al.. v. City off" Los Angeles. et al,.., Case No. CV 77- 3047 -HP (C.D., California). 21. AMENDMENT OR MODIFICATION OF AGREEMENT: This Agreement can be amended or modified solely upon written consent of the Parties. Such amendments or modifications may be proposed by either Party. Amendments or modifications shall be effective the third business day following the day the last Party to sign the amendment or modification sends its notification of signing to the other Party. The Parties may agree to a dif- ferent effective date. 22. TERMINATION OF AGREEMENT: Prior to the completion and certification of the Plant Upgrade and dismissal of the federal court case of United States, et al., v. City of Los Angeles, et ate, Case No. CV 77- 3047 -HP (C.D., California), the. Parties agree to enter into good faith negotiations regarding a new mitigation monitoring agreement with respect to the environmental effects of the operation of the Plant. Until the Parties agree to such new operational mitigation monitoring agreement but no later than December 31, 2002, this "ENVIRONMENTAL LITIGATION SETTLEMENT AGREEMENT BETWEEN THE CITY OF LOS ANGELES AND THE CITY OF EL SEGUNDO" shall remain in effect, notwithstanding the dismissal of United States et al., v. C.ty of Los Angeles, et al., Case No. CV 77- 3047 -HP (C.D., California). 4775.2 WITNESS THE EXECUTION OF THIS AGREEMENT on the -35- day of ) 14\ lw--UV\ , 1992. i\ovA -0\ ( ci4c. APPROVED AS TO FORM: IZLAND C. DOLLE`Y; City Attorney APPROVED AS TO FORM: JAMES K. HAHN, City Attorney Crstopa >`r M. Westhoff f Assistant City Attorney 4775.2 -36- CITY OF EL SEG a municipal By: CITY OF LOS ANGELES, a municipal corporation B y TO: Date: EXHIBIT A FORM OF REQUISITION CERTIFICATE Requisition No. REOUISI ION CERTIFICATE FISCAL AGENT UNDER THE ENVIRONMENTAL LITIGATION SETTLE- MENT ( "AGREEMENT ") BY AND BETWEEN THE CITY OF LOS ANGELES AND THE CITY OF EL SEGUNDO. The undersigned hereby request that the following amounts be paid to the following payees for the following Mitigation Monitoring Expenses as defined in said Agreement: Amount Paves and Address Description We hereby state and certify that the amounts requested or were necessary and appropriate in connection with the igation Monitoring Implementation Program, have been properly :rred and are a proper charge, against the MMIP Verification ount, have been paid by or are justly due to the persons whose les and addresses are stated above,. and have not.been the basis any previous requisition from the MMIP Verification Account- 4775.2 By: Title: -37-