HomeMy WebLinkAbout- - Agreement D11-066 to Fund Nutrient - 7/17/2012CITY COUNCIL AGENDA REPORT
MEETING DATE: JULY 17, 2012 ITEM NUMBER:
SUBJECT: COOPERATIVE AGREEMENT D11-066 TO FUND NUTRIENT, FECAL COLIFORM AND
TOXICS TOTAL MAXIMUM DAILY LOAD (TMDL) PROGRAMS IN THE NEWPORT BAY
WATERSHED
DATE: JULY 5, 2012
FROM: PUBLIC SERVICES DEPARTMENT/ENGINEERING DIVISION
PRESENTATION BY: ERNESTO MUNOZ, PUBLIC SERVICES DIRECTOR
FOR FURTHER INFORMATION CONTACT:. PATRICK BAUER, ASSOCIATE ENGINEER, (71.4) 754-5633
RECOMMENDATION:
Approve the Agreement to fund Nutrient, Fecal Coliform, and Toxics Total Maximum Daily
Load (TMDL) studies in the Newport Bay Watershed, Cooperative Agreement No. D11-066
(Attachment 1)
2. Authorize the Mayor and the City Clerk to execute Cooperative Agreement No. D11-066
3. Authorize the Public Services Director to extend the term of the agreement from June 30,
2015 to June 30, 2018 if necessary.
BACKGROUND:
On June 14, 2002, the United States Environmental Protection Agency (USEPA) established
Total Maximum Daily Loads (I'MDLs) for toxic pollutants in the San Diego Creek and Newport
Bay watershed. As a result, the Santa Ana Regional Water Quality Board (SARWQB) and the
Environmental Protection Agency (EPA) established TMDL requirements for nutrients, fecal
coliform, selenium, DDT, chlordane and other toxic compounds in the San Diego Creek and
Newport Bay watershed.
Agreement D99-128 (Attachment 2) was approved by the City Council on September 18, 2003
allowing the City to enter into a cooperative agreement with other affected cities in developing
implementation plans for the reduction of each of the toxic pollutants. The adopted TMDLs
contain requirements for studies, monitoring, and the development of programs to attain TMDL
reduction targets over a multi-year period. Agreement D99-128 has been amended three times
over the years to add or remove parties and to extend the expiration date of the agreement to
June 30, 2012.
Agreement D11-066 (Attachment 1) is a new cooperative agreement to continue funding
programs, studies, monitoring and other elements required to implement the fecal coliform,
nutrient and toxics Total Maximum Daily Load (TMDL) requirements within the San Diego Creek
and Newport Bay watershed (collectively referred to as the Newport Bay watershed).
ANALYSIS:
Costa Mesa is geographically located within the Newport Bay watershed. The area that drains
into this watershed extends from approximately Harbor Boulevard, easterly to the City boundaries.
Continued participation in the Nitrogen Selenium Management Program (NSMP) working group
will provide Costa Mesa direct access to potential regional and local funding, along with direct
involvement with governance issues associated with USEPA mandates. The working group
meets monthly and provides direct input into working plans, data analysis, policy guidance, and a
framework for coordination on a broad array of water quality and watershed restoration issues
within the Newport Bay watershed.
Due to the upcoming expiration. of Agreement D99-128, Agreement D11-066 was developed to
continue implementation of existing watershed programs to June 30, 2015. In addition, D11-
066 revises the existing cost share formula, allows for pilot projects, and includes other minor
revisions. Parties to D99-128 included Costa Mesa, the County of Orange, the Orange County
Flood Control District, the Irvine Ranch Water District, the Imine Company and eight other cities
within the Newport Bay watershed.
Agreement D11-066 includes a formula for determining a party's share of the watershed costs
that is based on population and net land within the watershed. For fiscal year 2012-2013,
Costa Mesa's share of the watershed budget remains relatively flat, currently at 4.26%
increasing to 4.28%. This figure may be revised in future years based on the cost share
formula. However, it is not expected to change significantly as the formula is based on land
area and population within the watershed. As noted above, the term of the agreement is for 3
years and potentially an additional three more if approved by the parties.
ALTERNATIVES CONSIDERED:
The alternative to this Council action would be to not participate in the agreement. By not
participating in this TMDL working group, the City would not have input in future activities within
the Newport Bay watershed. Any future programs or costs associated with compliance with US
EPA mandates, as they relate to Costa Mesa, would be the sole responsibility of the City, and
could be- potentially more expensive than the City's costs associated with being part of a
collaborativeapproach with other affected agencies in the watershed.
FISCAL REVIEW:
There is no fiscal impact due to this item. Funding requirements are determined through a
separate funding partner working group, reviewed and approved annually.
LEGAL REVIEW:
Cooperative Agreement No. D11-066 has been approved as to form by the City Attorney's office.
CONCLUSION:
City participation with the Newport Bay Watershed working group will allow direct input on
future funding and governance issues and continue Costa Mesa's compliance with the National
Pollutant Discharge Elimination System (NPDES) requirements. It is recommended that the City
Council approve the participation of the City of Costa Mesa in Agreement D11-066 to fund
Nutrient, Fecal Coliform, and Toxics Total Maximum Daily Load (TMDL) studies in the Newport
Bay watershed, and authorize the Mayor and the City Clerk to execute Cooperative Agreement
No. D11-066.
2
T.
ERNESTO WNOZ
Public Services Director
9X41 CL— AA -PI
FA IBA FAZELI
Interim City Engineer
ATTACHMENTS: 1- Cooperative Agreement No. D11-066
2- Cooperative Agreement No. D99-128
DISTRIBUTION: Chief Executive Officer
Assistant Chief Executive Officer
City Attorney
City Clerk Division
Staff
3
ATTACHMENT �
Agreement No. D11-066
AGREEMENT TO FUND NUTRIENT, FECAL COLIFORM AND TOXICS TOTAL MAXIMUM DAILY
LOAD ("TMDL") PROGRAMS IN THE NEWPORT BAY WATERSHED
THIS AGREEMENT, for purposes of identification numbered D11-066, referred to hereinafter as
"AGREEMENT", is made and entered into this day of , 201_, by and between the
County of Orange ("COUNTY"), the Orange County Flood Control District ("DISTRICT"), the City of
Costa Mesa ("COSTA MESA"), the City of Irvine ("IRVINE"), the City of Laguna I lills ("LAGUNA
HILLS"), the City of Laguna Woods ("LAGUNA WOODS"), the City of Lake Forest ("LAKE FOREST"),
the City of Newport Beach ("NEWPORT BEACH"), the City of Orange ("ORANGE"), the City of Santa
Ana ("SANTA ANA"), the City of Tustin ("TUSTIN" ), the Irvine Ranch Water District ("IRWD") and the
Irvine Company ("TIC'), and Lennar Homes of California, Inc.("LENNAR"). The fourteen entities are
hereinafter sometimes jointly referred to as the "PARTIES" and individually as "PARTY." The cities are
hereinafter sometimes jointly referred to as the "CITIES." The CITIES, COUNTY and DISTRICT are
hereinafter sometimes jointly referred to as the "MUNICIPAL PARTIES." Thirteen entities (all entities
except for LENNAR) are sometimes jointly referred to as the "ORIGINAL PARTIES."
WHEREAS, the California Regional Water Quahty Control Board, Santa Ana Region
("REGIONAL BOARD") has adopted Resolution No. 98-9, as amended by Resolution No. 98-100
amending the Water Quality Control Plan for the Santa Ana River Basin to incorporate a Nutrient TMDL
for the Newport Bay/San Diego Creek Watershed on April 17,1998 and Resolution 99-10 amending the
Water Quality Control Plan for the Santa Ana River Basin to incorporate a TMDL for Fecal Coliform in
Newport Bay on April 9,1999 pursuant to the provisions of section 303(d) of the Clean Water Act; and,
WHEREAS, the United States Environmental Protection Agency (USEPA) has established TMDLs
for toxic pollutants, for San Diego Creek and Newport Bay, California on June 14, 2002, and the
REGIONAL BOARD is developing implementation plans for each of the toxic pollutants; and,
Page 1 of 22
Agreement No. D11-066
WHEREAS, the adopted TMDLs contain requirements for studies, monitoring, and the
development of programs to attain TMDL reduction targets over a multi-year period; and,
WHEREAS, these TMDLs are included in the National Pollutant Discharge Eli.nlination System
("NPDES") Municipal Permit Order No. R8-2009-0030 that require a cooperative watershed program;
and,
WHEREAS, the ORIGINAL PARTIES entered into Agreement No. D99-128 on
September 18, 2003 and subsequent amendments on July 5, 2006, March 29, 2008 and July 8, 2010 to
provide funding for the Nutrients Fecal Coliform, and Toxics Total Maximum Daily Load (TMDL)
studies in the Newport Bay Watershed; and,
WHEREAS, the PARTIES intend this AGREEMENT as a successor to Agreement No. D99-128 to
provide for the performance of studies, research, monitoring, development and/or revision of programs
related to the adopted TMDLs for nutrients, fecal coliform and toxics and current and future Clean Water
Act §303(d) listings, as well as planning, permitting, design, construction, and maintenance of TMDL
pilot projects ("PILOT PROJECTS"); and
WHEREAS, the PARTIES have reached agreement on a funding formula which is shown in
Exhibit A; and
WHEREAS, in the event that long-term watershed funding is secured prior to AGREEMENT
expiration, the PARTIES intend to amend the AGREEMENT to incorporate this funding through revised
cost share allocations; and,
WHEREAS, it is recognized that regulatory compliance gained through the activities herein
apply to all PARTIES equally, and
WHEREAS, it is recognized that additional compliance efforts may be necessary and the
PARTIES may choose to fund projects under separate agreements; and
NOW, THEREFORE, in consideration of the foregoing, the PARTIES agree as follows:
Page 2 of 22
Agreement No. Dll-066
Section 1. PURPOSE. This AGREEMENT is entered into for the purpose of funding and
performing program activities related to the adopted TMDLs for nutrients, fecal coliform, and toxics and
current and future Clean Water Act §303(d) listings in the Newport Bay Watershed.
Section 2. TERM. The term of this AGREEMENT shall commence upon approval and execution
of this AGREEMENT by all PARTIES or July 1, 2012, whichever is later, and shall continue until June 30,
2015. The AGREEMENT may be renewed for an additional three (3) year term running July 1, 2015 to
June 30, 2018 with approval of the PARTIES.
Section 3. PROGRAM WORK PLAN. The COUNTY shall work in concert with all PARTIES to
develop a work plan for the following fiscal year. The work plan for the upcoming fiscal year shall be
submitted to each of the PARTIES by December 15 of each year. The work plan may designate a PARTY
as a lead other than the COUNTY for a work plan task(s).
Section 4. BUDGET AND COSTS. The COUNTY shall work in concert with all the PARTIES.to
develop a budget for the following fiscal year. Budgeted amounts for PILOT PROJECT(S) shall not exceed
$200,000 for all pilot projects in any one fiscal year. The budget for the upcoming fiscal year shall be
submitted to each of the PARTIES by December 15 of each year. The budget shall contain an explanation
of any recommended program changes, an estimate of all planned expenditures and an estimate of the
payment required from each PARTY for the following fiscal year.
The COUNTY shall be entitled to charge to the program all costs for direct labor, materials,
equipment, and outside contract services for costs associated with carrying out the approved scope of
work. Recoverable costs will also include an overhead charge.
Section 5. WORK PIAN TASK LEAD REIMBURSEMENT. If a PARTY is designated as a task
lead, upon written authorization from COUNTY, the PARTY shall invoice the COUNTY for authorized
expenses up to the approved budget amount for the work plan task.
Section 6. APPROVALS AND ADJUSTMENTS. The PARTIES shall be permitted to review and
approve the budget and program work plan for the forthcoming year, review work products, and
provide direction for performance of the work plan. The PARTIES shall be notified of the intent to issue
Page 3 of 22
Agreement No. Dll-066
contracts to perform the program work plan, shall be permitted to participate in the preparation and
review of the scope of work for such contracts, and to serve on the committee evaluating consultant
qualifications/ proposals subject to the requirements of the County of Orange Contract Policy Manual.
Criterion for approval of the work plan and budget shall be affirmative responses from PARTIES
representing ninety percent (90%) of the Cost Share Percentage in Exhibit A and 12 of the 13 PARTIES.
The COUNTY and DISTRICT will constitute one approving PARTY. Any PARTY not providing a
response by July 15 of each year shall be considered as rendering an affirmative response.
Criterion for approval of adjustments to scopes of work shall be the same as for the approval of
the work plan and budget.
Section 7. FUNDING COST SHARE ALLOCATIONS. Exhibit A, which is attached to this
AGREEMENT and by this reference is made a part hereof, presents the funding formula and the fiscal
year 2012-13 cost share percentages for the PARTIES. Land area calculations will be reviewed and
revised as needed. A request for information documenting changes in land area will be made to the
PARTIES each year by November 1.
Section 8. PAYMENTS. The COUNTY shall invoice each PARTY for its annual deposit at the
beginning of each fiscal year. Each PARTY shall pay the deposit within 45 calendar days of the date of
the invoice. Each PARTY'S deposit shall be based on its prorated share of the approved annual budget,
reduced by the sum of (a) its prorated share of any surplus identified in the prior fiscal year end
accounting, and (b) its prorated share of any funding provided for programs in the approved budget
from entities not party to this AGREEMENT.
Interest earned on the PARTIES' deposits will not be paid to the PARTIES, but will be credited
against the PARTIES' share of the program costs.
The COUNTY shall notify each of the PARTIES if it appears that costs may exceed the budget
approved by the PARTIES in any fiscal year. The COUNTY shall prepare a fiscal year end accounting
within 60 calendar days of the end of the fiscal year. If the fiscal year end accounting results in costs (net
of interest earnings) exceeding the sum of the deposits, and the COUNTY has notified and obtained
Page 4 of 22
Agreement No. D11-066
approval from the PARTIES of potential cost overruns, the COUNTY shall seek approval of the excess
cost from the PARTIES in the form of a revised budget and, upon approval, shall invoice each PARTY for
its prorated share of the excess cost up to the amount of the revised approved budget. Each PARTY shall
pay the billing within 45 calendar days of the date of the invoice. If the fiscal year end accounting results
in the sum of the deposits exceeding costs (net of interest earnings), the excess deposits will carry forward
to reduce the billings for the following year. The fiscal year end accounting results and associated
invoices for each PARTY will crake into consideration any outside funding provided for programs in the
approved budget from entities not party to this AGREEMENT.
Upon termination of the program, a final accounting shall be performed by the COUNTY. If
costs remaining after the deduction of interest costs exceed the sum of the deposits, the COUNTY shall
invoice each PARTY for its prorated share of the deficit. Each PARTY shall pay the invoice within 45
calendar days of the date of the invoice. If the sum of the deposits, including interest, exceeds the costs,
the COUNTY shall reimburse to each PARTY its prorated share of the excess, within 45 calendar days of
the final accounting.
Section 9. ADDITIONAL PARTIES. It is recognized that there may be other parties who wish to
participate in and provide funding for the activities described in this AGREEMENT. Nothing in this
AGREEMENT is intended to preclude additional participants being added by written amendment as
parties to this AGREEMENT pursuant to Section 10. Cost allocations for the additional parties and
PARTIES will be revised based on the funding formula in Exhibit A.
Section 10. AMENDMENT. This AGREEMENT may be amended in writing only with the
unanimous written approval of the parties.
Section 11. LIABILITY. It is mutually understood and agreed that, merely by the virtue of
entering into this AGREEMENT, each PARTY neither relinquishes any rights nor assumes any liabilities
for its own actions or the actions of other PARTIES. It is the intent of the PARTIES that the rights and
liabilities of each Party shall remain the same, while this AGREEMENT is in force, as it was before this
AGREEMENT was made, except as otherwise specifically provided in this agreement.
Page 5 of 22
Agreement No. Dll-066
Section 12. TERMINATION. Any PARTY wishing to terminate its participation in this
AGREEMENT shall so notify all other PARTIES in writing by March 1 of any year. Such termination
shall be effective the following June 30. The terminating PARTY shall be responsible for financial
obligations hereunder to the extent incurred in accordance with this agreement by the PARTY prior to the
effective date of termination. The balance of the PARTIES may continue in the performance of the terms
and conditions of this AGREEMENT on the basis of a revised allocation of cost based on the funding
formula in Exhibit A.
Section 13. AVAILABILITY OF FUNDS. The obligation of each PARTY is subject to the -
availability of funds appropriated for this purpose, and nothing herein shall be construed as obligating
the PARTIES to expend or as involving the PARTIES in any contract or other obligation for the future
payment of money in excess of appropriations authorized by law.
Section 14. NO THIRD PARTY BENEFICIARIES. Nothing expressed or mentioned in this
AGREEMENT is intended or shall be construed to give any person, other than the PARTIES hereto and
any entity in which a PARTY has a legal interest (such as, but not limited to, a limited liability
membership interest or a partnership interest), and any permitted successors or assigns of a PARTY, any
legal or equitable right, remedy or claim under or in respect of this AGREEMENT or any provisions
herein contained. This AGREEMENT and any conditions and provisions hereof is intended to be and is
for the sole and exclusive benefit of the PARTIES and the entities in which they have a legal interest and
their successors or assigns and for the benefit of no other person, agency or entity.
Section 15. REFERENCE TO CALENDAR DAYS. Any reference to the word "day" or "days"
herein shall mean calendar day or calendar days, respectively, unless otherwise expressly provided.
Section 16. ATTORNEYS FEES. In any action or -proceeding brought to enforce or interpret any
provision of this AGREEMENT, or where any provision hereof is asserted as a defense, each PARTY shall
bear its own attorneys' fees and costs.
Section 17. ENTIRE AGREEMENT_ This AGREEMENT is intended by the PARTIES as a final
expression of their agreement and intended to be a complete and exclusive statement of the agreement
Page 6 of 22
Agreement No. DII-066
and understanding of the PARTIES hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth or referred to herein. This
AGREEMENT supersedes all prior agreements and understandings between the PARTIES with respect to
such matter.
Section 18. SEVERABILTI'Y. If any part of this AGREEMENT is held, determined or adjudicated
to be illegal, void, or unenforceable by a court of competent jurisdiction, the remainder of this
AGREEMENT shall be given effect to the fullest extent reasonably possible.
Section 19. SUCCESSORS AND ASSIGNS. The terms and provisions of this AGREEMENT shall
be binding upon and inure to the benefit of the PARTIES hereto and their successors and assigns.
Section 20. NOTICES. All notices required or desired to be given under this AGREEMENT shall
be in writing and (a) delivered personally, or (b) sent by certified mail, return receipt requested or (c) sent
by electronic mail followed by a mailed copy, to the addresses specified below, provided each PARTY
may change the address for notices by giving the other PARTIES at least ten (10) days written notice of
the new address. Notices shall be deemed received when actually received in the office of the addressee
or when delivery is refused, as shown on the receipt of the U.S. Postal service, or other person making the
delivery, except that notices sent by electronic mail shall be deemed received on the first business day
following transmission.
Director of Public Services
City of Costa Mesa
P.O. Box 1200
Costa Mesa, CA 92628-1200
Facsimile: (714) 754-5028
Director of Community Development
City of Irvine
P.O. Box 19578
Irvine, CA 92623-9578
Facsimile: (949) 724-6440
Director of Public Services
City of Laguna Hills
24035 EI Toro Road
Laguna Hills, CA 92653
Facsimile: (949) 707-2633
Page 7 of 22
Agreement No. D11-066
Director of Community Development
City of Laguna Woods
24264 El Toro Road
Laguna Woods CA 92637
Facsimile: (949) 639-0591
Director of Public Works
City of Lake Forest
25550 Commercentre Dr. Suite 100
Lake Forest, CA 92630
Facsimile: (949) 461-3511
Director of Public Works
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92658
Facsimile: (949) 718-1840
Director of Public Works
City of Orange
300 E. Chapman Ave
Orange, CA 92866
Facsimile: (714) 74¢5573
Director of Public Works
City of Santa Ana
101 W. 41h St.
Santa Ana, CA 92701
Facsimile: (714) 647-5635
Director of Public Works
City of Tustin
300 Centennial Way
Tustin, CA 92780
Facsimile: (714) 7348991
Director, OC Public Works
County of Orange
300 N. Flower Street
Santa Ana, CA 9270214048
Facsimile: (714) 834-2395
Executive Director of Water Policy
Irvine Ranch Water District
15600 Sand Canyon Avenue
Irvine, CA 92618
Facsimile: (949) 453-0228
Vice President of Environmental Affairs
The Irvine Company
550 Newport Center
Page 8 of 22
Agreement No. Dll-066
Newport Beach, CA 92658-8904
Facsimile: (949) 720-2448
Vice President of Community Development
Lennar
25 Enterprise, Ste 400
Aliso Viejo, CA 92656
Facsimile: (949) 349-0394
Section 21. EXECUTION OF AGREEMENT. This AGREEMENT may be executed in counterpart
and the signed counterparts shall constitute a single instrument.
Section 22. GOVERNING LAW AND VENUE. This AGREEMENT has been negotiated and
executed in the State of California and shall be governed by and construed under the laws of the State of
California. In the event of any legal action to enforce or interpret this AGREEMENT, the sole and
exclusive venue shall be a court of competent jurisdiction located in Orange County, California, and the
PARTIES hereto agree to and do hereby submit to the jurisdiction of such court, notwithstanding Code of
Civil Procedure section 394. Furthermore, the PARTIES have specifically agreed, as part of the
consideration given and received for entering into this AGREEMENT, to waive any and all rights to
request that an action be transferred for trial to another county under Code of Civil Procedure Section 394
or any other provision of law.
IN WITNESS WHEREOF, the PARTIES hereto have executed this AGREEMENT the day and
year first above written:
Page 9 of 22
Date:
Date:
APPROVED AS TO FORM
COUNTY COUNSEL
By
Deputy
Date:
Agreement No. DII-066
COUNTY OF ORANGE,
a political subdivision of the State of
California
By:
Chairman of the Board of Supervisors
ORANGE COUNTY FLOOD CONTROL DISTRICT
a body corporate and politic
By:
Chairman of the Board of Supervisors
SIGNED AND CERTIFIED THAT A COPY OF THIS
AGREEMENT HAS BEEN DELIVERED TO THE
CHAIR OF THE BOARD.
By
Susan Novak
Clerk of the Board of Supervisors of
Orange County, California
Page 10 of 22
Date:
APPROVED AS TO FORM:
ATTEST:
City Clerk
CITY OF COSTA MESA
By:
Mayor
City Attorney of Costa Mesa
Page 11 of 22
Agreement No. DII-066
Date:
APPROVED AS TO FORM:
ATTEST:
Agreement No. DII-066
CITY OF IRVINE
By:
Mayor
City Clerk City Attorney of Irvine
Page 12 of 22
Date:
APPROVED AS TO FORM:
ATTEST:
City Clerk
CITY OF LAGUNA HILLS
By:
Mayor
City Attorney of Laguna Hills
Page 13 of 22
Agreement No. Dll-066
Agreement No. D11-066
CITY OF LAGUNA WOODS
Date: By:
Mayor
APPROVED AS TO FORM:
ATTEST:
City Clerk City Attorney of Laguna Woods
Page 14 of 22
Date:
APPROVED AS TO FORM:
ATTEST:
City Clerk
CITY OF LAKE FOREST
By:
Mayor
City Attorney of Lake Forest
Page 15 of 22
Agreement No. D11-066
Agreement No. D11-066
CITY OF NEWPORT BEACH
Date: By:
Mayor
APPROVED AS TO FORM:
ATTEST:
City Clerk City Attorney of Newport Beach
Page 16 of 22
Date:
APPROVED AS TO FORM:
ATTEST:
City Clerk
CITY OF ORANGE
By:
Mayor
City Attorney of Orange
Page 17 of 22
Agreement No. Dll-066
Agreement No. D11-066
CITY OF SANTA ANA
Date: By:,
Mayor
APPROVED AS TO FORM:
►� M�.IM
City Clerk City Attorney of Santa Ana
Page 18 of 22
CITY OF TUSTIN
Date: By:
APPROVED AS TO FORM:
ATTEST:
City Clerk
Mayor
City Attorney of Tustin
Page 19 of 22
Agreement No. D11-066
Date:
Agreement No. Dll-066
THE IRVINE RANCH WATER DISTRICT
By:
Date: By:
Name:
Title:
Name:
Title:
Page 20 of 22
Date:
Date:
THE IRVINE COHPANY
By:
Name: _
Title:
By:
Name:
Title:
Page 21 of 22
Agreement No. Dl1-066
Date:
Agreement No. Dl1-066
Lennar Homes of California,
By:
Date: By:
Name:
Title:
Name:
Title.
Page 22 of 22
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Agreement No. D99 -12E
AGREEMENT TO FUND NUTRIENT, FECAL COLIFORM AND TOXICS TOTAL MAXIMUM DAILY LOAD (TMDL)
STUDIES IN THE NEWPORT BAY WATERSHED
THIRD AMENDMENT AND FULL RESTATEMENT OF AGREEMENT
THIS THIRD AMENDMENT, for purposes of identification numbered D99-128, is made
and entered into this day of �, 2010 , by and between the County of
Orange ("COUNTY"), the Orange County Flood Control District ("DISTRICT"), the City of
Costa Mesa ("COSTA MESA"), the City of Irvine ("IRVINE"), the City of Laguna Hills
(-LAGUNA HILLS"), the City of Laguna Woods (-LAGUNA WOODS"), the City of Lake Forest
("LAKE FOREST"), the City of Newport Beach ("NEWPORT BEACH"), the City of Orange
("ORANGE"), the City of Santa Ana ("SANTA ANA"), thecity of Tustin ("TUSTIN"), the
Irvine Ranch Water District ("IRWD") and The Irvine Company ("TIC"), and Lennar Homes
of California, Inc.("LENNAR"). The fourteen entities are hereinafter sometimes
jointly referred to as the "PARTIES" and individually as -"PARTY". The cities are
hereinafter sometimes jointly referred to as the "CITIES". Thirteen entities (all
entities except for LENNAR) are sometimes jointly referred to as the "ORIGINAL
PARTIES."
WITNESSETH
WHEREAS, the California Regional Water Quality Control'Board, Santa Ana Region
("REGIONAL BOARD") has adopted Resolution No. 98-9, as amended by Resolution No. 98-
100 amending the Water Quality Control Plan for the Santa Ana River Basin to
incorporate a NutYient TMDL for the Newport Bay/San Diego Creek Watershed on April 17,
1998 and Resolution 99-10 amending the Water Quality Control Plan for the Santa Ana
River Basin to incorporate a TMDL for Fecal Coliform in Newport Bay on April 9, 1999
pursuant to the provisions of section 303(d) of the Clean Water Act; and,
WHEREAS, the United States Environmental Protection Agency (USEPA) has
established TMDLs for toxic pollutants, San Diego Creek and Newport Bay, California on
June 14, 2002, and the REGIONAL BOARD is developing implementation plans for each of
the toxic pollutants; and,
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WHEREAS, the adopted TMDLs contain requirements for studies, monitoring and the
development of programs to attain TMDL reduction targets over a multi --year period;
and,
WHEREAS, the ORIGINAL PARTIES entered into Agreement No. D99-126 on
September 16, 2003, referred to hereinafter as "AGREEMENT", to provide funding for the
Nutrient, Fecal Coliform and Toxics Total Maximum Daily Load (TMDL) studies in the
Newport Bay Watershed; and,
WHEREAS, the PARTIES approved Amendment No. 1 to AGREEMENT on July 5,
2006, which amended Sections 3 (Funding), 4 (Program Budgets and Costs), 5 (Payments),
10 (No Third Party Beneficiaries), and 16 (Notices), and Exhibits A and C in their
entirety and added the California Department of Transportation, LENNAR, Tustin Legacy
Community Partners, and Orange County Great Park Corporation as AGREEMENT
participants; and,
WHEREAS, the PARTIES approved Amendment No. 2 to AGREEMENT on March 29,
2008 to extend the term of the AGREEMENT for two (2) years to be consistent with the
end of the current phase of the Nitrogen and Selenium Management Program and to
recognize prior payments for services made directly by the California Department of
Transportation and IRWD, for work plan development and Bay algae studies respectively;
and,
WHEREAS, pursuant to Section 6 of the AGREEMENT, the AGREEMENT may be amended ir
writing only with the unanimous written approval of the.PARTIES; and,
WHEREAS, Tustin Legacy Community Partners has terminated its development
agreement for the Tustin Marine Corps Air Station and withdrawn from the AGREEMENT
effective June 30, 2010; and,
WHEREAS, due to State budget constraints the California Department of
Transportation has withdrawn from the AGREEMENT effective June 30, 2010 and will
address its discharges independently; and
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WHEREAS, the Orange County Great Park Corporation has combined as a PARTY with
IRVINE effective June 30, 2010; and,
WHEREAS, the PARTIES desire to extend the AGREEMENT through June 30, 2012 to
(provide for the performance of studies, monitoring and the development of programs and
Tong -term funding to attain TMDL reduction targets over a multi-year period; and,
WHEREAS, in the event that long-term watershed funding is secured prior to
(AGREEMENT expiration, the PARTIES intend to further amend the AGREEMENT to incorporate
this funding through revised cost share allocations; and,
WHEREAS, the PARTIES have revised the cost share allocations as shown in Exhibit
1A, which shall remain fixed for the duration of the AGREEMENT term; and,
WHEREAS, the PARTIES now desire to amend and restate the AGREEMENT in its
lentirety.
NOW THEREFORE: The PARTIES hereto unanimously agree to amend and restate the
AGREEMENT in its entirety as follows:
Section 1. PURPOSE. This AGREEMENT is entered into for the purpose of funding
land performing studies, research, monitoring and the development and implementation of
programs related to the adopted TMDLs for nutrients, fecal coliform and toxics in the
18an Diego Creek and Newport Bay watersheds.
Section 2. TERM. The term of this AGREEMENT shall continue until June 30, 2012,
unless sooner terminated as provided in Section 8.
Section 3. FUNDING COST SHARE ALLOCATIONS. Exhibit A, which is attached to this
AGREEMENT and by this reference is made a part hereof, presents the cost share
lallocations for the PARTIES for the duration of the AGREEMENT.
Section 4. PROGRAM SCOPE OF WORK, BUDGET AND COSTS. The COUNTY shall work in
concert with all PARTIES to develop a scope of work and a budget for the following
fiscal year. The scope of work and budget for the upcoming fiscal year shall be
submitted to each of the PARTIES by December 15 of each year. The budget shall
contain an explanation of any recommended program changes, an estimate of all planned
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expenditures and an estimate of the payment required from each PARTY for the following
fiscal year.
The PARTIES shall be permitted to review and approve the program scope of work
and budget for the forthcoming year, review work products, and provide direction for
performance of the scope of work. Criterion for approval of the program scope of work
and budget shall be affirmative responses from all PARTIES. The COUNTY and DISTRICT
will constitute one approving PARTY. Any PARTY not providing a response by July 15 of
each year shall be considered an affirmative response.
The COUNTY shall be entitled to charge to the program all costs for direct
labor, materials, equipment and outside contract services for costs associated with
carrying out the approved scope of work. Recoverable costs will also include an
overhead charge.
Section 5. PAYMENTS. The COUNTY shall invoice each PARTY for its annual deposit
at the beginning (July 1) of each fiscal year. Each PARTY shall pay the deposit
within 45 calendar days of the date of the invoice. Each PARTY'S deposit shall be
based on its prorated share of the approved annual budget, reduced by the sum of (a)
its prorated share of any surplus identified in the prior fiscal year end accounting,
and (b) its prorated share of any funding provided for programs in the approved budget
from entities not party to this AMENDMENT.
Interest earned on the PARTIES' deposits will not be paid to the PARTIES, but
will be credited against the PARTIES' share of the program costs.
The COUNTY shall notify each of the PARTIES if it appears that costs may exceed
the budget approved by the PARTIES in any fiscal year. The COUNTY shall prepare a
fiscal year end accounting within 60 calendar days of the end of the fiscal year. If
the fiscal year end accounting results in costs (net of interest earnings) exceeding
the sum of the deposits, and the COUNTY has notified and obtained approval from the
PARTIES of potential cost overruns, the COUNTY shall seek approval of the excess cost
from the PARTIES in the form of a revised budget and, upon approval, shall invoice
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Agreement No. D99 -12E
each PARTY for its prorated share of the excess cost up to the amount of the revised
approved budget. Each PARTY shall pay the billing within 45 calendar days of the date
of the invoice. If the fiscal year end accounting results in the sum of the deposits
exceeding costs (net of interest earnings), the excess deposits will carry forward to
reduce the billings for the following year. The fiscal year end accounting results
and associated invoices for each PARTY will take into consideration any outside
funding provided for programs in the approved budget from entities not party to this
AGREEMENT.
Upon termination of the program, a final accounting shall be performed by the -
COUNTY. If costs remaining after the deduction of interest costs exceed the sum of
the deposits, the COUNTY shall invoice each PARTY for its prorated share of the
deficit. Each PARTY shall pay the invoice within 45 calendar days of the date of the
invoice. If the sum of the deposits, including interest, exceeds the costs, the
COUNTY shall reimburse to each PARTY its prorated share of the excess, within 45
calendar days of the final accounting.
Section 6. AMENDMENT. This AGREEMENT may be amended in writing only with the
unanimous written approval of the parties.
Section 7. LIABILITY. It is mutually understood and agreed that, merely by the
virtue of entering into this AGREEMENT, each PARTY neither relinquishes any rights nor
assumes any liabilities for its own actions or -the actions of other PARTIES. It is
the intent of the PARTIES that the rights and liabilities of each Party shall remain
the same, while this AGREEMENT is in force, as it was before this AGREEMENT was made,
except as otherwise specifically provided in this agreement.
Section 8. TERMINATION. Any PARTY wishing to terminate its parLA cipation in
this AGREEMENT shall so notify all other PARTIES in writing by March 1 of any year.
Such termination shall be effective the following June 30. The terminating PARTY
shall be responsible for financial obligations hereunder to the extent incurred in
accordance with this agreement by the PARTY prior to the effective date of
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Agreement No. D99 -12F
termination. The balance of the PARTIES may continue in the performance of the terms
and conditions of this AGREEMENT on the basis of a revised allocation of cost based on
the funding formula in Exhibit A.
Section 9. AVAILABILITY OF FUNDS. The obligation of each PARTY is subject to
the availability of funds appropriated for this purpose, and nothing herein shall be
construed as obligating the PARTIES to expend or as involving the PARTIES in any
contract or other obligation for the future payment of money in excess of
appropriations authorized by law.
Section 10. NO THIRD PARTY BENEFICIARIES. Nothing expressed or mentioned in this
AGREEMENT is intended or shall be construed to give any person, other than the PARTIES
hereto and any entity in which a PARTY has a legal interest (such as, but not limited
to, a limited liability membership interest or a partnership interest), and any
permitted successors or assigns of a PARTY, any legal or equitable right, remedy or
claim under or in respect of this AGREEMENT or any provisions herein contained. This
AGREEMENT and any conditions and provisions hereof is intended to be and is for the
sole and exclusive benefit of the PARTIES and the entities in which they have a legal
interest and their successors or assigns and for the benefit of no other person,
agency or entity.
Section 11. REFERENCE TO CALENDAR DAYS. Any reference to the word "day" or
"days" herein shall mean calendar day or calendar days, respectively, unless otherwisE
expressly provided.
Section 12. ATTORNEYS FEES. In any action or proceeding brought to enforce or
interpret any provision of this AGREEMENT, or where any provision hereof is asserted
as a defense, each PARTY shall bear its own attorneys' fees and costs.
Section 13. ENTIRE AGREEMENT. This AGREEMENT is intended by the PARTIES as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the PARTIES hereto in respect of the
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Agreement No. D99-128
subject matter contained herein. There are no restrictions, promises, warranties or
Jundertakings, other than those set forth or referred to herein. This AGREEMENT
isupersedes all prior agreements and understandings between the PARTIES with respect to
Isuch matter.
Section 14. SEVERARILITY. If any part of this AGREEMENT is held, determined or
adjudicated to be illegal, void, or unenforceable by a court of competent
jurisdiction, the remainder of this AGREEMENT shall be given effect to the fullest
extent reasonably possible.
Section 15. SUCCESSORS AND ASSIGNS. The terms and provisions of this AGREEMENT
shall be binding upon -and inure to the benefit of the PARTIES hereto and their
successors and assigns.
Section 16. NOTICES. All notices required or desired to be given under this
AGREEMENT as amended shall be in writing and (a) delivered personally, or (b) sent by
certified mail, return receipt requested or (c) sent by telefacsimile communication
followed by a mailed copy, to the addresses specified below, provided each PARTY may
change the address for notices by giving the other PARTIES at least ten (10) days
written notice of the new address. Notices shall be deemed received when actually
received in the office of the addressee or when delivery is refused, as shown on the
receipt of the U.S. Postal service, or other person making the delivery, except that
notices sent by telefacsimile communication shall be deemed received on the first
business day following transmission.
Director of Public Services
City of Costa Mesa
P.O. Box 1200
Costa Mesa, CA 92628-1200
Facsimile: (714) 754-5028
Director of Public Works
City of Irvine
P.O. Box 19578
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Irvine, CA 92623-9578
Facsimile: (949) 724-6440
Director of Public Services
City of Laguna Hills
24035 E1 Toro Road
Laguna Hills, CA 92653
Facsimile: (949) 707-2633
Director of Community Development
City of Laguna Woods
24264 El Toro Road
Laguna Woods CA 92637
Facsimile: (949) 639-0591
Director of Public Works
City of Lake Forest
25550 Commerc_entre Dr. Ste 100
Lake Forest, CA 92630
Facsimile: (949) 461-3511
Director of Public Works
City of Newport Beach
3304 Newport Blvd.
Newport Beach, CA 92658
Facsimile: (949) 718-1840
Director of Public Works
City of Orange
300 E. Chapman Ave
Orange, CA 92866
Facsimile: (714) 744-5573
Director of Public Works
City of Santa Ana
101 1-1. 4 th St .
Santa Ana, CA 92701
Facsimile: (714) 647-5635
Director of Public Works
City of Tustin
300 Centennial Way
Tustin, CA 92780
Facsimile: (714) 734--8991
Director, OC Public Works
County of Orange
300 N. Flower Street
Santa Ana, CA 92702-4048
Facsimile: (714) 834-2395
Director, Water Quality
Irvine Ranch Water District
3512 Michelson Dr
Irvine, CA 92712
Facsimile: (949) 453-1228
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Agreement No. D99-1
Vice President of Environmental Affairs
The Irvine Company
550 Newport Center
Newport Beach, CA 92658-8904
Facsimile: (949) 720-2448
Five Point Communities (Lennar) _
Jim Werkmeister
Manager, Environmental Affairs
25 Enterprise, Ste 400
Aliso Viejo, CA 92656
Facsimile: (949)
Section 17. STATUS OF ORIGINAL AGREEMENT. Upon approval of this AGREEMENT by
all PARTIES, the original agreement of September 18, 2003, as amended on July 5, 2006
and March 29, 2008 will be superseded by this AGREEMENT.
Section 18. EXECUTION OF AGREEMENT. This AGREEMENT may be executed in
counterpart and the signed counterparts shall constitute a single instrument.
Section 19. GOVERNING LAW AND VENUE. -This AGREEMENT has been negotiated and
executed in the State of California and shall be governed by and construed under the
laws of the State of California. In the event of any legal action to enforce or
interpret this AGREEMENT, the sole and exclusive venue shall be a court of competent
jurisdiction located in Orange County, California, and the PARTIES hereto agree to and
do hereby submit to the jurisdiction of such court, notwithstanding Code of Civil
Procedure section 394. Furthermore, the PARTIES have specifically agreed, as part of
the consideration given and received for entering into this AGREEMENT, to waive any
and all rights to request that an action be transferred for trial to another county
under Code of Civil Procedure Section 394 or any other provision of law
IN WITNESS WHEREOF, the PARTIES hereto have executed this AGREEMENT the day and
year first above written:
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Date: Y-1�— 0
APPROVED AS TO FORM:
COUNTY
B
Y• COUNSEL
LD—
Geoffr'//. Hunt, Deputy
Date. r
Agreement No. D99-12
COUNTY OF ORANGE,
a political subdivision of the State of
California.
By:
Chairmad of the Boa d of Supervisors
ORANGE COUNTY FLOOD CONTROL DISTRICT
a body corporate.and politic
By:
Chairma of the Boa d f Supervisors
SIGNED AND CERTIFIED THAT A COPY OF
THIS AGREEMENT HAS BEEN DELIVERED TO
THE CHAIRMAN OF THE BOARD
3y:
DARLENE J. BLOOM
vlerk of the Board of Supervisors of
Drange County, California
Date �! f q `1.0
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Date: Z-// % - /- d
APPROVED AS TO FORM:
ATTEST:
CITY OF COSTA MESA
By: %
Mayor
&14J
City Atto ey of Costa Mesa
11
Agreement No. D99 -12f
Final Version 7/8/201(
Date: %-20-/0
APPROVED AS TO FORM:
ATTEST:
City Clerk
CITY OF IRVINE
By:
Agreement No. D99-12
City Attor y f Irvine
12
Date: akv- � yf �01 O
APPROVED AS TO FORM:
ATTEST:
t�
City C
Peggy J. Johns
Agreement No. D99-121
CITY OF LAGUNA HILLS
By:
A --
Mayor
Randal Bressette
ity Attorney of L guna Hills
Gregory E. Simonian
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Date : qlj`-'
APPROVED AS TO FORM:
ATTEST:
City Cl
.Yoli zv
ippy
CITY OF LAGUNA WOODS
By: "way
a
My r
Milton Robb i,ns
City to ey of Laguna S400ds
Stephen A. McEwen
14
Agreement No. D99-124
Pinal Version 7/8/2011
Date: q/-! l 10
APPROVED AS TO FORM:
ATTEST:
CityfClerk
CITY OF LAKE FOREST
By:
Mayor
Cit Of Lake Forest
15
Agreement No. D99-12
Final version 7/8/201
Date: �" Ia
APPROVED AS TO FORM;
ATTEST:
S�
City Cle
CITY OF ORANGE
BY:
Agreement No. D99-1:
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Final Vexsion 7/8/20
Date:
— ZA,
-APPROVED AS TO FORM:
ATTEST:
A-2010-157
CITY OF SANTA ANA
r
By:
City Manager
City Clerk Pity Attorney of San Ana
18
Agreement No. D99 -12E
Final version 7/81201C
CITY OF TUSTIN
Date: b -_3-w By:
APPROVED AS TO FORM:
ATTEST:
Agreement No. D99-12
19
Ci y Clerk ty Attorney
Tustin
19
Agreement No, D99 -12E
THE IRVINE RANCH WATER DISTRICT
Date:/ By:
Name Paul D Jo s II
Title: Genera na er
Date: y-��-/O By:
Name, Joan C. Arneson
Ti e: District Counsel
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THE IRVINE COMPANY
Date: 7b3110 By:
Date: By
Agreement No. D99-12
'title: Vice President
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Agreement No. D99-12
Lennar Homes of California, Inc.
a California corporation
Date: By:
Name Q
Title:
Date: By: ,G
Name:
Title:
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Agreement No. D99-12
EXHIBIT A
�.=s�t_i`.OC73t.5tiaiiGE3±,P�r,Get}Cc3ge � .
Costa Mi7-..a 4.26%
Irvine
24.24°6
Laguna Hills
0.5496
Laguna Woods-
0.90%
Lake Forest
5.07%
Newport Beach
6.47%
Orange
0.89P6
Santa Ana
13.52%
Tustin
5.92%
County of Orange
3.82%
OCFCD
7.29%
IRWD
12.15%
TIC
12.15°6
Lennar
2.76%
TOTAL 100.00%
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