HomeMy WebLinkAbout13 AMEND 2 AGRMNT D99-128 08-05-08AGENDA REPORT
MEETING DATE: AUGUST 5, 2008
TO: WILLIAM A. HUSTON, CITY MANAGER
FROM: PUBLIC WORKS DEPARTMENT/ENGINEERING DIVISION
SUBJECT: AMENDMENT NO. 2 TO AGREEMENT NO. D99-128 TO FUND NUTRIENT,
FECAL COLIFORM AND TOXICS TOTAL MAXIMUM DAILY LOAD (TMDL)
STUDIES IN THE NEWPORT BAY WATERSHED
SUMMARY
Amendment No. 2 to Cooperative Agreement No. D99-128 will extend the term of
Agreement No. D99-128 an additional two years. Agreement No. D99-128 provides for the
joint funding of Nutrient, Fecal Coliform, and Toxics studies in the Newport Bay Watershed
pursuant to provisions of Section 303(d) of the Clear Water Act and the Municipal National
Pollutant Discharge Elimination System (NPDES) Stormwater Permit as adopted by the
Santa Ana Regional Water Quality Control Board.
RECOMMENDATION
It is recommended that the City Council approve Amendment No. 2 to Agreement No. D99-
128 "Agreement to Fund Nutrient, Fecal Coliform, and Toxics Total Maximum Daily Load
(TMDL) Studies in the Newport Bay Watershed' and authorize the Mayor and City Clerk to
execute the agreement on behalf of the City.
FISCAL IMPACT
The City of Tustin's cost share for fiscal year 2008-2009 is $121,277. These costs have
been budgeted in the current Public Works Department Operating Budget (01-401-6010).
BACKGROUND
Cooperative Agreement No. D99-128 forms the basis of cooperation for the implementation
of the adopted TMDLs within the Newport Bay and San Diego Creek Watershed. The
primary purpose of the TMDL's is to control and reduce the amount of fecal Coliform,
nutrients, and toxic contaminants entering Newport Bay. The original Agreement was fully
executed in September 2003 to provide a long term funding formula to ensure that the
costs of compliance with the TMDLs are shared equitably among the parties within the
Newport Bay/San Diego Creek Watershed. The adopted TMDLs contain requirements for
studies, monitoring and the development of programs to attain TMDL containment
reduction targets over amulti-year period. The original parties to the Agreement included
the County of Orange, the Orange County Flood Control District, the Irvine Ranch Water
District, The Irvine Company, the City of Costa Mesa, the City of Irvine, the City of
Amendment No. 2 to Cooperative Agreement No. D99-128 to Fund Nutrient, Fecal
Coliform, and Toxics Total Maximum Daily Load TMDL Studies in the Newport Bay
Watershed
August 5, 2008
Page 2
Laguna Hills, the City of Laguna Woods, the City of Lake Forest, the City of Newport
Beach, the City of Orange, the City of Santa Ana, and the City of Tustin.
In July 2006, Amendment No. 1 was fully executed and four additional entities were added
to the Cooperative Agreement. Pursuant to Amendment No. 1, Tustin Legacy Community
Partners, Orange County Great Park Corporation, Lennar Homes of California, Inc., and
the California Department of Transportation became contributing partners to this
agreement. These four members jointly contribute 12% of the shared program costs with
the original parties to the agreement contributing the remaining 88%. The Cities and the
County of Orange allocation is calculated each year based on land area and population.
DISSCUSSION
Agreement No. D99-128 remained in effect until June 30, 2008. Amendment No. 2 to the
Agreement extends this partnership for an additional two years and will be effective back to
July 1, 2008.
Compliance with the requirement of the TMDL's necessitates a continued watershed wide
approach to achieve significant results that could not be efficiently produced by each party
acting alone. It is therefore recommended that the City Council approve Amendment No. 2
to Agreement No. D99-128 "Agreement to Fund Nutrient, Fecal Coliform and Toxic Total
Maximum Daily Load (TMDL) Studies in the Newport Bay Watershed:'
Tim D. Serlet
Director of Public Works/City Engineer
Dana R. Kasdan
Engineering Services Manager
Attachment: Amendment No. 2 to Agreement No. D99-128
Amend # 2 to Coop Agmt # D99-128
Amendment No. 2 to Agreement No.D99-12£
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AMENDMENT NO. 2
AGREEMENT TO FUND NUTRIENT, FECAL COLIFORM AND TOXICS TOTAL MAXIMUM DAILY LOAD (TMDL)
STUDIES IN THE NEWPORT BAY WATERSHED
THIS AMENDMENT, for. purposes of identification numbered Amendment No. 2 to
Agreement No. D99-128, is made and entered into this day of 2008, by
and between the County of Orange ("COUNTY"), the Orange County Flood Control District
I("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"), the City of Tustin
("TUSTIN"), the Irvine Ranch Water District ("IRWD"), The Irvine Company ("TIC"), the
California Department of Transportation ("CALTRANS"), Tustin Legacy Community Partners
("TLCP"), Lennar Homes of California, Inc.("LENNAR"), and Orange County Great Park
Corporation ("GPC"). The seventeen 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 CALTRANS, TLCP, LENNAR, and GPC) are sometimes jointly referred to as the
"ORIGINAL PARTIES."
WITNESSETH
WHEREAS, the ORIGINAL PARTIES entered into Agreement No. D99-128 on
September 18, 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 1 to Agreement No. D99-128 on July
5, 2006, which amended Section 3 (Funding), Section 4 (Program Budgets and Costs),
Section 5 (Payments), Section 10 (No Third Party Beneficiaries), Section 16 (Notices),
Exhibit A, and Exhibit C of the AGREEMENT in their entirety and added CALTRANS, TLCP,
LENNAR, and GPC as AGREEMENT participants; and,
WHEREAS, according to Section 6 of the AGREEMENT, the AGREEMENT may be
amended in writing only with the unanimous written approval of the PARTIES; and,
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Amendment No. 2 to Agreement No.D99-12E
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WHEREAS, the PARTIES desire to extend the term of the AGREEMENT for two
I(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 CALTRANS and IRWD, for work plan development and Bay algae studies respectively, as
credits in the 2008-09 program budget.
NOW, THEREFORE, in consideration of the foregoing, it is agreed by and
between the PARTIES hereto that the AGREEMENT shall be amended as follows:
Section 1. Each and all of the provisions of the AGREEMENT remains in
full force and effect, except that all references to Resources and Development
Management Department or RDMD shall be amended to OC Public Works and Section 2 and
Section 4 are amended in their entirety, as follows:
Section 2. Section 2 of the AGREEMENT, entitled "TERM", shall be amended
to read in full as follows: The term of this AGREEMENT is extended for a two-year
period, commencing on July 1, 2008 and continuing to and including June 30, 2010,
unless sooner terminated as provided in Section 8.
Section 4. Section 4 of the AGREEMENT, entitled "PROGRAM BUDGET AND COSTS"
shall be amended to read in full as follows: The COUNTY shall submit a scope of work
and a budget for the following fiscal year to each of the PARTIES by February 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. For the State of California
budgeting requirements, CALTRANS' contribution shall not exceed $150,000 or five
percent (5.0~) of the total budget costs, whichever is less, for each fiscal year
during the term of the AGREEMENT. If CALTRANS contribution would be greater than
$150,000 for a given fiscal year, the amount over $150,000 ("EXCESS AMOUNT") shall be
cost-shared as described in Section 2 of AMENDMENT 1, with the exception that for such
EXCESS AMOUNT, the ORIGINAL COST ALLOCATION shall be ninety-three percent (93~) and
CALTRANS contribution shall be zero percent (0~).
The PARTIES shall be permitted to review and approve the program scope of
work and budget for the forthcoming year. Criteria for approval shall be affirmative
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Amendment No. 2 to Agreement No.D99-12E
1 written responses from all of the PARTIES. The COUNTY and DISTRICT will constitute
2 one approving PARTY.
3 The tasks and expenditures for each fiscal year will be presented and
calculated as shown in Exhibit C, which is attached hereto and made a part hereof.
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All tasks and expenditures will be updated each fiscal year as part of the budget
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approval process. Therefore, Exhibit C as attached is a form to be completed every
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year. The COUNTY shall be entitled to charge to the program all costs for direct
7 labor, materials, equipment and outside contract services for costs associated with
8 carrying out the approved scope of work. Recoverable costs will also include an
9 overhead charge calculated by the County Auditor-Controller which includes OC Public
10 Works overhead and County-wide cost allocation plan.
11 CALTRANS and IRWD will receive credits of $75,000 and $6,932.88
respectively in the fiscal year 2008-09 program budget for prior payments for services
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related to the AGREEMENT.
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IN WITNESS WHEREOF, the PARTIES hereto have executed this AGREEMENT the
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day and year first above written:
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Amendment No. 2 to Agreement No.D99-12E
1 COUNTY OF ORANGE,
a political subdivision of the State of
2 California
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Date: By:
4 Bryan Speegle, Director, OC Public Works
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APPROVED AS TO FORM:
7 COUNTY COUNSEL
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By:
9 Punam P. Prahalad, Deputy
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Date:
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Amendment No. 2 to Agreement No.D99-12£
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Date:
APPROVED AS TO FORM:
ATTEST:
City Clerk
CITY OF COSTA MESA
By:
Mayor
City Attorney of Costa Mesa
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Amendment No. 2 to Agreement No.D99-128
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Date:
APPROVED AS TO FORM:
ATTEST:
City Clerk
CITY OF IRVINE
By:
Mayor
City Attorney of Irvine
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Amendment No. 2 to Agreement No.D99-12£
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Date:
APPROVED AS TO FORM:
ATTEST:
City Clerk
CITY OF LAGUNA HILLS
By:
Mayor
City Attorney of Laguna Hills
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Amendment No. 2 to Agreement No.D99-128
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Date:
APPROVED AS TO FORM:
ATTEST:
City Clerk
CITY OF LAGUNA WOODS
By:
Mayor
City Attorney of Laguna Woods
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Amendment No. 2 to Agreement No.D99-128
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(Date:
(APPROVED AS TO FORM:
(ATTEST:
City Clerk
CITY OF LAKE FOREST
By:
Mayor
City Attorney of Lake Forest
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Amendment No. 2 to Agreement No.D99-12E
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APPROVED AS TO FORM:
7 ATTEST:
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CITY OF NE9~P0RT BEACH
By:
Mayor
City Attorney of Newport Beach
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Amendment No. 2 to Agreement No.D99-128
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Date:
APPROVED AS TO FORM:
ATTEST:
City Clerk
CITY OF ORANGE
By:
Mayor
City Attorney of Orange
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Amendment No. 2 to Agreement No.D99-12E
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Date:
APPROVED AS TO FORM:
ATTEST:
City Clerk
CITY OF SANTA ANA
By:
Mayor
City Attorney of Santa Ana
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Amendment No. 2 to Agreement No.D99-12E
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Date:
APPROVED AS TO FORM:
ATTEST:
City Clerk
CITY OF TIISTIN
By:
Mayor
i ttorney of Tust n
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Amendment No. 2 to Agreement No.D99-12E
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THS IRVINE RANCH WATER DISTRICT
Date: By:
Name:_
Title.
Date:
By:
Name:
Title:
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Amendment No. 2 to Agreement No.D99-12f
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Date:
Date:
THS IRVINE COMPANY
BY=
Name:
Title:
By:
Name:
Title.
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Amendment No. 2 to Agreement No.D99-12E
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CALIFORNIA DSPARTM$NT OF TRANSPORTATION
By:
Name:
Title:
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By:
Name:
Title.
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Amendment No. 2 to Agreement No.D99-12£
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TUSTIN LEGACY COMMUNITY PARTNERS, LLC
a Delaware limited liability company
Date: By:
Date:
By:
Ken Nishikawa
VP Shea Properties,
Director of Engineering
Tustin Legacy Community Partners, LLC
Name:_
Title.
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Amendment No. 2 to Agreement No.D99-12E
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(Date:
(Date:
Lennar Homes of California,
a Developer Member of Heritage Fields Limited
Liability Company
By:
By:
Name:
Title.
Name:
Title.
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Amendment No. 2 to Agreement No.D99-12E
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Date:
Date:
GR$AT PARK CORPORATION,
a California non-profit organization
By:
By:
Name:
Title:
Name:
Title.
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