MEMORANDUM OF UNDERSTANDING

Transcription

1 MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF LOS ANGELES DEPARTMENT OF PUBLIC WORKS BUREAU OF SANITATION AND THE CITY OF BURBANK DEPARTMENT OF PUBLIC WORKS FOR THE TECHNICAL SERVICES, RESEARCH AND ANALYSIS REGARDING THE WASTEWATER FLOW GAUGING USED TO CHARGE THE CITY OF BURBANK FOR WASTEWATER SERVICE Exhibit A

2 MEMORANDUM OF UNDERSTANDING This Memorandum of Understanding (MOU) is made and entered into by and between the City of Los Angeles, Bureau of Sanitation of the Department of Public Works (LASAN), hereinafter referred to as Los Angeles, and the City of Burbank, Department of Public Works, hereinafter referred to as Burbank. R E C I T A L S WHEREAS, the City of Burbank s agreement with Los Angeles to provide treatment and disposal of a portion of Burbank s wastewater was executed in Because the wastewater discharged from Burbank to Los Angeles includes upstream wastewater from Los Angeles entering Burbank, Burbank s service charges are based on the flow and strength of measured and estimated flows of both parties. WHEREAS, wastewater flow from Los Angeles sewers into Burbank is determined by adding estimated flows to the gauged flows at five stations, LTM-06, LTM-07, LTM-08, LTM-09 and LA-12. These flows are either discharged directly to the North Outfall Sewer (NOS) or into Burbank sewers. Burbank s net flow is quantified by subtracting Los Angeles s flow from Burbank s flow measured at a single flume located downstream where the NOS crosses from Burbank to Los Angeles. WHEREAS, the calculation does not directly consider Burbank s individual discharges to the NOS upstream of the flume or the discharge of treatment sludge from the Burbank Water Reclamation Plant to one of Burbank s sewers, tributary to the NOS. WHEREAS, in FY and in subsequent years, the net flow from Burbank was calculated as a negative number. Representatives of Burbank and Los Angeles have been unable to agree on how to calculate Burbank s net flow. When the calculation was agreed upon by the two cities, it was assumed that subtracting Los Angeles s flow from Burbank s flow in a single sewer was a representative way of quantifying Burbank s net flow. In addition, Los Angeles has gauged the flow in the NOS at LTM-14 adjacent to the flume. WHEREAS, the two cities have agreed to jointly hire a Consultant with Task Order Solicitation (TOS-SN 28), Technical Services, Research and Analysis Regarding the Wastewater Flow Gauging Used to Charge Burbank for Wastewater Service, to determine the reasons for the calculated negative flow and strength and to determine a representative way to calculate Burbank s net flow and strength. Results will be used as the basis for negotiations to determine fair and equitable charges to Burbank for past and future services provided by Los Angeles. Burbank/Los Angeles MOU 1 Page A-2

3 WHEREAS, an actual controversy exists as to the fair and equitable charges to Burbank, including but not limited to past services provided by Los Angeles. WHEREAS, in the course of preparing work the Consultant needs to communicate verbally with a person at either city, the Consultant will document the conversation/communication via to both cities. WHEREAS, the consulting work will start on the issuance date of the Notice to Proceed (NTP) by Los Angeles and will be completed within 12 months after the NTP. NOW, THEREFORE, Los Angeles and Burbank agree to enter into and abide by the terms of and conditions of this MOU. ARTICLE I THE MOU A. PURPOSE OF THE MOU 1. To establish the responsibility of Los Angeles to administer TOS-SN To establish the responsibility of Los Angeles and of Burbank to use the results of the TOS to determine and negotiate fair and equitable charges to Burbank for past and future services provided by Los Angeles. 3. To establish that Burbank shall pay Los Angeles for 50% of the cost for the Consultant for consulting services provided in accordance with TOS- SN To establish terms and the method of payment for Burbank to reimburse Los Angeles for paying the Consultant for consulting services provided in accordance with TOS-SN 28. B. TERM OF THE MOU 1. This MOU will commence upon execution by the authorized representatives of Los Angeles and Burbank, and will expire twelve (12) months thereafter unless extended by amendment. Either Party may terminate this Agreement for any reason by providing the other Party with 30 days prior written notice of termination. Termination, however, shall not relieve a party from any financial obligation accrued up to the date of the notice of termination. C. REPRESENTATIVES OF THE PARTIES OF THIS MOU Burbank/Los Angeles MOU 2 Page A-3

4 The representatives of the respective parties are authorized to administer this MOU and to whom formal notices, demands, requests and communications shall be given are as follows: 1. For Los Angeles: Enrique C. Zaldivar, LASAN Director Department of Public Works 1149 S. Broadway, 9 th Floor Los Angeles, CA Attn: Susan Rocha ( ) Susan Rocha shall be the Project Manager (PM) of the TOS and shall be responsible for its administration. 2. For Burbank: Bonnie Teaford, Public Works Director City of Burbank 150 N. Third St.. Burbank, CA Attn: Daniel Rynn ( ) ARTICLE II RESPONSIBILITIES OF LOS ANGELES A. Los Angeles shall administer TOS SN-28 with the Consultant. B. Los Angeles shall answer the Consultant s questions within two (2) work days. C. Los Angeles shall invoice Burbank following payment of consultant under TOS SN-28. D. Los Angeles shall bill Burbank for 50% of the cost paid to the Consultant under TOS SN-28 and attach the Consultant s invoice. ARTICLE III RESPONSIBILITIES OF BURBANK A. Burbank shall answer the Consultant s questions within two (2) work days. B. Burbank shall review the Consultant s invoice submitted by Los Angeles and reply with concurrence or comments within two (2) work days. C. Burbank shall pay Los Angeles for 50% of the cost paid to the Consultant. ARTICLE IV COMMUNICATION This section details the means of communication between the Consultant and the two cities. Burbank/Los Angeles MOU 3 Page A-4

5 A. Communication related to the administration of the TOS will be directed to the Project Manager (PM). B. Concurrence between both cities shall be required for the approval of payment of the Consultant s invoices and for any modifications, additions, deletions, and changes in scope, schedule or budget. C. Primary means of contact between the Consultant and both cities shall be in the form of s. D. All communications shall be sent to both cities. E. The point of contact with the Consultant will be the PM. F. Only the PM shall direct the work of the Consultant under TOS SN-28 with Burbank s concurrence. ARTICLE V BILLING AND PAYMENT A. Upon execution of this MOU and the selection of a Consultant, Los Angeles shall arrange for payment of Consultant invoices that have been approved by both Los Angeles and Burbank, as invoices are being submitted by the Consultant. B. Late payment penalties: any payments that are more than thirty (30) days past due shall be subject to interest on the original amounts due at the Prime Rate in effect when the payment first became due plus one (1) percent, not to exceed the maximum rate allowed by law. As long as payment, including applicable interest and penalties, is made within 120 days, Burbank shall not be deemed to be in Default. C. Timeline: upon receipt of a bill from the Consultant, Los Angeles shall send it to Burbank to obtain concurrence within two (2) work days; once Burbank concurs, Los Angeles shall pay the bill, send Burbank proof of payment, and invoice Burbank for 50% of the cost paid to the Consultant; Burbank shall pay Los Angeles within thirty (30) calendar days of ed date of the invoice or receipt of the invoice. ARTICLE VI - HOLD HARMLESS AND INDEMNITY A. Pursuant to Government Code Section and 895.6, City of Burbank and Los Angeles shall each assume the full liability imposed upon it, or any of its officers, agents or employees, by law for injury caused by any negligent or wrongful act or omission occurring in the performance of this Agreement. B. City of Burbank and Los Angeles indemnifies and holds harmless the other party for any loss, costs, or expenses that may be imposed upon such other party by virtue of Government Code section 895.2, which imposes joint civil liability upon public entities solely by reason of such entities being parties to an agreement, as defined by Government Code section 895. Burbank/Los Angeles MOU 4 Page A-5

6 C. In the event of third-party loss caused by negligence, wrongful act or omission by both parties, each party shall bear financial responsibility in proportion to its percentage of fault as may be mutually agreed or judicially determined. The provisions of Civil Code Section 2778 regarding interpretation of indemnity agreements are hereby incorporated. D. Excluded from the above is any claim as to charges to Burbank for past services provided by Los Angeles. ARTICLE VII MISCELLANEOUS A. Except as otherwise provided herein, this MOU may be altered, modified or amended only in writing, and executed by the parties hereto. B. This MOU contains the full and complete agreement between Los Angeles and Burbank. No verbal agreement or conversation with any officer or employee of the parties shall affect or modify any of the terms and conditions of the MOU. C. No Attorney s Fees. Both parties hereto agree that in any action to enforce the terms of this Agreement, each party shall be responsible for its own attorneys fees and costs. D. Representation by Counsel. Each Party was represented by its respective legal counsel during the negotiation, drafting, and execution of this Agreement. Each Party acknowledges and agrees that it has had a full and fair opportunity to review and revise the terms of this Agreement. Further, each Party acknowledges and agrees that the Parties jointly drafted this Agreement, and that the terms of this Agreement shall not be construed against or in favor of a Party. E. Severability of Provisions and Headings. In case any one or more of the provisions contained in this Agreement should be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. Section headings in this Agreement are included for convenience of reference only and shall not be given any substantive effect. F. No Consequential or Punitive Damages. Except with respect to liabilities arising from third-party claims, in no event shall either Party be liable to the other Party under any provision of this Agreement for any indirect, incidental, punitive, or consequential damages, losses, costs, or expenses including, but not limited to, lost profits or revenue, loss of the use of equipment, capital costs, or temporary equipment or services costs, whether based in whole or in part in contract or tort, including negligence, strict liability, or any other theory of liability; provided, however, that damages for which a Party may be liable to the other Party under another agreement will not be considered to be indirect, incidental, punitive, or consequential damages hereunder. G. Execution in Counterparts. This Agreement may be executed in counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same instrument. Burbank/Los Angeles MOU 5 Page A-6

7 IN WITNESS WHEREOF, LOS ANGELES and BURBANK have caused this MOU to be executed by their duly authorized representatives. ATTEST: CITY OF LOS ANGELES Holly L. Wolcott Los Angeles City Clerk By: Enrique C. Zaldivar LASAN Director Date: Approved as to Form: Mike Feuer Los Angeles City Attorney Adena M. Hopenstand Deputy City Attorney ATTEST: CITY OF BURBANK Zizette Mullins Burbank City Clerk By: Bonnie Teaford Public Works Director Date: Approved as to Form: Office of the City Attorney Joseph H. McDougall Senior Assistant City Attorney Burbank/Los Angeles MOU 6 Page A-7