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HomeMy WebLinkAbout07 COOPERATIVE AGREEMENT D08-104Agenda Item 7 AGENDA REPORT Reviewed.- City eviewed.City Manager lzmr Finance Director N/A MEETING DATE: FEBRUARY 16, 2010 TO: WILLIAM A. HUSTON, CITY MANAGER FROM: DOUGLAS S. STACK, ACTING DIRECTOR OF PUBLIC WORKS/CITY ENGINEER SUBJECT: APPROVAL OF FOURTH AMENDMENT AND FULL RESTATEMENT OF COOPERATIVE AGREEMENT D08-104 FOR THE NEWPORT BAY WATERSHED AND THE CENTRAL WATERSHED MANAGEMENT AREA SUMMARY At the August 19, 2009 Newport Bay Watershed Executive Committee meeting, the Committee approved amendments to Cooperative Agreement D08-104 for the purpose of providing a meaningful framework for cooperation of sediment, water quality, and water resource issues in the Central Watershed Management area. The agreement forms the partnership for member agencies to work together on issues in the watershed. The Cooperative Agreement is a standard form agreement, and has been approved by the Orange County Board of Supervisors and is now ready for approval by all the affected agencies. RECOMMENDATION It is recommended that the City Council approve the fourth amendment and full restatement of cooperative agreement D08-104 for the Newport Bay Watershed and the Central Watershed Management Area and authorize execution of the agreement by the Mayor and City Clerk on behalf of the City. FISCAL IMPACT This agreement establishes a governance and decision-making process for the partnership, but it does not involve a financial commitment. Specific cost allocations are established through separate implementation agreements executed by the various parties. DISCUSSION In 1983, the Cities of Irvine and Newport Beach, The Irvine Company, the County of Orange and the California Department of Fish and Game entered into a Cooperative Agreement for the San Diego Creek and Upper Newport Bay Watershed. The agreement was entered into for the purpose of providing a forum to evaluate and assess progress towards implementing the Comprehensive Storm Water Sedimentation Control Plan. This agreement established an executive committee consisting of a representative from each agency and assigned the committee with the responsibility for reviewing and reporting the progress implementing the Sediment Control Program. The agreement also recognized that there were parties within the watershed that also had responsibilities for controlling sediment and that they should be required to participate in future project implementation agreements. Subsequently, this agreement was amended in 1985 to add the City of Tustin. In December of 1997, the Upper Newport Bay Executive Committee convened to discuss the implementation of new Total Maximum Daily Load (TMDL) requirements for the Upper Newport Cooperative Agreement D08-104 February 16, 2010 Page 2 Bay Watershed and the current watershed planning efforts. As a result, it was unanimously decided that the Committee should expand its role to other watershed issues beyond sediment impairments and add the Orange County Flood Control District, the City of Lake Forest, the Regional Water Control Board (Santa Ana Region) and the Irvine Ranch Water District to the Executive Committee. A second amendment to the agreement was signed in April 1999, to include these agencies. Since 1999, a number of changes that affect the cooperative agreement have occurred. Additional TMDLs were approved by the Regional Water Control Board, Santa Ana Region for the Newport Bay watershed. The State of California also required Integrated Regional Water Management Plans as a basis for grant funding under Proposition 50 and 84. In February 2009, the Executive Committee authorized the Third Amendment to address these changes. At its quarterly meeting on August 19, 2009, the Newport Bay Watershed Executive Committee approved changes to the Cooperative Agreement to add the cities of Costa Mesa and Santa Ana to the Executive Committee. This fourth amendment to the Agreement also makes a revision to allow for the future addition of parties upon approval from the Executive Committee and execution of the agreement by the new party, without requiring further approval by the existing parties. Cooperative Agreement D08-104 consolidates the original agreement and the three subsequent amendments into one document. The City Attorney has reviewed the amendment to Cooperative Agreement D08-104 and has approved it as to form. Il4s {S. Stack, P.E. g Viblic Works Director/City Engineer Attachment: Agreement D08-104, dated 0-26-09 Doug Anderson Transportation and Development Manager S:\City Council Items\2010 Council Items\Approval of Cooperative Agreement Newport Bay.docx T Agreement D08-104 COOPERATIVE AGREEMENT FOR THE NEWPORT SAY WATERSHED AND THE CENTRAL WATERSHED MANAGEMENT AREA FOURTH AMENDMENT AND FULL RESTATEMENT OF COOPERATIVE AGREEMENT THIS FOURTH AMENDMENT to the Cooperative Agreement is numbered (hereinafter "COOPERATIVE AGREEMENT") and is made and entered into this day of 2009, by and between the County of Orange, the Orange County Flood Control District, the Cities of Irvine, Lake Forest, Newport Beach, Tustin, Santa Ana, Costa Mesa, the California Department of Fish and Game, The Irvine Company, the Regional Water Quality Control Board, Santa Ana Region and the Irvine Ranch Water District. These entities are hereinafter sometimes jointly referred to as the "PARTIES" and individually as "PARTY". W I T N E S S E T H WHEREAS, on September 30, 1983, a COOPERATIVE AGREEMENT was entered into by the County of Orange, the Cities of Irvine and Newport Beach, The Irvine Company, and the California Department of Fish and Game to implement the Comprehensive Stormwater Sediment Control Plan (hereinafter "PLAN") in the San Diego Creek -Newport Bay Watershed (hereinafter "NEWPORT BAY WATERSHED") and established the Newport Bay Watershed Executive Committee; and, WHEREAS, the primary purpose of the PLAN is to reduce sedimentation of Newport Bay; and WHEREAS, the sediment affecting Newport Bay which originates in natural open space lands as well as lands disturbed by man for agricultural and urban uses; and, WHEREAS, if sedimentation of Newport Bay is not controlled, the State owned ecological preserve in upper Newport Bay may continue to be degraded and large amounts of sediment may be deposited in lower Newport Bay, thus impairing the valuable small boat, commercial and recreational land uses; and, - 1 - 8-26-09 r Agreement D08-104 WHEREAS, the PARTIES have limited resources with which to address the implementation of the PLAN and it is recognized that any effective implementation of the PLAN will depend upon availability of funding sources at the regional, state and federal levels; and, WHEREAS, on September 25, 1985, the COOPERATIVE AGREEMENT was amended to add the City of Tustin as a participant; and, WHEREAS, on April 20, 1999, the COOPERATIVE AGREEMENT, then numbered D99-026, was amended to add the Orange County Flood Control District, the City of Lake Forest, the Regional Water Quality Control Board, Santa Ana Region, and the Irvine Ranch Water District as participants and the purpose of the agreements was expanded to include cooperative work on nutrient impairments and other common watershed issues in the NEWPORT BAY WATERSHED; and, WHEREAS, since the last amendment of the COOPERATIVE AGREEMENT in 1999 a number of changes affecting water quality regulation, funding and governance have affected the NEWPORT BAY WATERSHED including: 1. Total Maximum Daily Loads (hereinafter "TMDL" or "TMDLs") have been approved by the Regional Water Quality Control Board, Santa Ana Region for fecal coliform on April 9, 1999, diazinon and chlorpyrifos on April 4, 2003, and organochlorine pesticides on September 7, 2007, and by the United States Environmental Protection Agency for toxic pollutants on June 14, 2002. Additional TMDLs are in development. The organochlorine pesticides TMDL recognizes that pollutants other than the organochlorine compounds, such as metals, pyrethrins or other emerging pollutants may pose the more real or significant threat to beneficial uses in the watershed and allows stakeholders to pursue an integrated approach to TMDL implementation through development and implementation of a work plan that encompasses all sources of water quality impairment; and, - 2 - 8-26-09 Agreement D08-104 2. On December 20, 2004, the Regional Water Quality Control Board, Santa Ana Region approved Order No. R8-2004-0021 regulating groundwater discharges in the NEWPORT BAY WATERSHED, resulting in the formation of the Nitrogen and Selenium Management Program to comprehensively address nitrogen and selenium issues; and, 3. On February 1, 2005, the Orange County Board of Supervisors, with input from cities and special districts, recommended the formation of three Watershed Management Areas, including a Central Watershed Management Area, comprised of the NEWPORT BAY WATERSHED and the Newport Coastal Streams Watershed, with the Newport Bay Watershed Executive Committee structure to serve as the model for governance of each Watershed Management Area; and, 4. The State of California has established requirements for Integrated Regional Water Management Plans as a basis for significant grant funding under Propositions 50 and 84 resulting in the preparation of the Central Orange County Integrated Regional and Coastal Watershed Management Plan in August 2007; and, WHEREAS, the PARTIES desire to broaden the range of cooperation to incorporate the water quality regulation, funding and governance issues described above and to expand the geographic area to include the Newport Coastal Streams Watershed, consistent with the boundaries of the Central Watershed Management Area (see Exhibit 1); and, WHEREAS, the PARTIES desire to amend and restate the COOPERATIVE AGREEMENT in its entirety; and, WHEREAS, the PARTIES intend to continue to implement the PLAN unchanged under the amended and restated COOPERATIVE AGREEMENT, NOW THEREFORE: The PARTIES hereto unanimously agree to amend and restate the COOPERATIVE AGREEMENT in its entirety as follows: - 3 - 8-26-09 Agreement D08-104 Section 1. Purpose. This Agreement is entered into for the purpose of providing a management framework for cooperation on sediment, water quality and water resource issues in the Central Watershed Management Area, including: a) Providing a forum to evaluate and assess progress toward implementing the PLAN prepared under the Federal 208 Water Quality Planning Program; b) Formulating project implementing agreements for the elements of the PLAN and to evaluate and assess the effectiveness of the various elements of the PLAN; c) Reviewing progress and providing direction on projects to address water quality impairments, including sediment, nutrients, fecal indicator bacteria, toxicity, and any emerging pollutants; d) Reviewing opportunities and providing direction for pollutant trading or offset programs; e) Reviewing opportunities and providing direction for grant funding through Integrated Regional Water Management Plans; f) Providing oversight for the Central Watershed Management Area and any updates of the Central Orange County Integrated Regional and Coastal Watershed Management Plan; and, g) Formulating project implementation agreements for any cost -shared projects (hereinafter "PROJECT IMPLEMENTATION AGREEMENTS", see Section 5). Section 2. Additional Parties. It is recognized that there are other parties within the watershed that have responsibilities for controlling sediment, improving water quality and water resource management. These parties include the Cities of Costa Mesa, Laguna Hills, Laguna Woods, Orange, and Santa Ana, the California Department of Transportation, the U. S. Department of Defense, the Federal Aviation Administration, utilities, and owners of large undeveloped parcels of land. The PARTIES hereto agree to engage with these other parties, as appropriate, on the sediment, water - 4 - 8-26-09 Agreement D08-104 quality and water resource issues described above and one or more of these other parties may be requested to participate in future PROJECT IMPLEMENTATION AGREEMENTS. PARTIES may be added to this AGREEMENT with approval of the Executive Committee and upon execution of this AGREEMENT by the new PARTY. Section 3. Executive Committee. Each of the PARTIES, except for the Orange County Flood Control District which shall be represented by the County, shall appoint a member and an alternate to an Executive Committee, to be called the Newport Bay Watershed Executive Committee. The members so appointed shall elect a chair and a vice chair to serve a two-year term. The Committee shall meet from time to time upon the request of the chair, but at least every six months. The Executive Committee shall be responsible for reviewing and reporting to the PARTIES as to whether adequate and reasonable progress is being made on sediment, water quality and water resource issues in the Central Watershed Management Area and recommending PROJECT IMPLEMENTATION AGREEMENTS. The Executive Committee may establish standing committees to support it in conducting its work. The goals and desired outcomes of the work of the Executive Committee are to: a) Integrate and improve hydrologic functioning of the watershed to optimize flood protection, water conservation and water quality protection; b) Protect, enhance, restore and connect habitat in the watershed; c) Integrate economic development with watershed restoration efforts; d) Facilitate watershed stewardship to support watershed goals; e) Build and sustain effective relationships between watershed stakeholders to achieve common goals through positive communication, collaboration, consensus and coordination; and, - 5 - 8-26-09 Agreement D08-104 f) Create an effective, efficient, innovative, responsive, and transparent Executive Committee operation. Section 4. COMPREHENSIVE STORMWATER SEDIMENTATION CONTROL PLAN. The PLAN consists of the following elements and schedules, updated to reflect current conditions: Elements A. Improve agricultural land management practices High erosion areas Remaining areas B. Improve construction Land management practices C. Install and maintain in -channel basins D. Install and maintain basins in Upper Newport Bay E. Channel Stabilization Undeveloped areas: As condition of development Dedicated channels: Inventory of deficiencies Stabilization F. Foothill basins Incorporation into drainage master plan Construction G. Monitoring Cooperative agreement Bay monitoring Develop program Implement Schedules Completed Resource Conservation Plans Implementation ongoing Completed Grading Ordinance changes and training Completed construction (Implementation Agreement dated 9-24-84) Completed construction (Implementation Agreement dated 5-8-84) Implementation ongoing Completed initial stabilization (additional stabilization ongoing) Completed construction of 7 basins as part of planned development Concurrent stabilization of downstream channels Implementation ongoing (Implementation Agreements dated 9-10-85, 9-2-86, 1-9-91, 8-20-96, 4-20-99) The PARTIES hereto agree to use their best efforts to formulate agreements to implement the PLAN. - 6 - 8-26-09 Agreement D08-104 The Cities of Irvine, Lake Forest, Newport Beach, and Tustin and the County of Orange have and shall continue to consider adoption of programs and/or enforcement of ordinances within each agency's jurisdiction sufficient to implement Elements A and B of the PLAN. The intent of these efforts shall be to require use of the most cost effective measures for the management of sediment that is consistent with preservation of upper Newport Bay, as set forth in the PLAN. Section 5 PROJECT IMPLEMENTATION AGREEMENTS. Implementation of any cost -shared projects to address sediment, water quality and water resource issues shall be accomplished through PROJECT IMPLEMENTATION AGREEMENTS. PROJECT IMPLEMENTATION AGREEMENTS for the PLAN shall designate a lead agency and shall provide for funding the anticipated construction and maintenance costs. The PARTIES to this COOPERATIVE AGREEMENT as well as other parties in the watershed may be participants in these PROJECT IMPLEMENTATION AGREEMENTS. Section 6. Amendment. This Agreement may be amended only with the unanimous approval of all PARTIES. Section 7. Termination. The term of this COOPERATIVE AGREEMENT shall commence upon the date when all PARTIES have executed this document and shall continue until three or more of the PARTIES have withdrawn as provided in Section 9 below. Section 8. Project Funding. All PARTIES shall use their best efforts to aid the lead agencies designated in PROJECT IMPLEMENTATION AGREEMENTS in advocating for funding, including grants, to fund the cost -shared projects. Section 9. Withdrawal of PARTIES. Any of the PARTIES to this COOPERATIVE AGREEMENT may withdraw by giving written notice of withdrawal to the other PARTIES to this COOPERATIVE AGREEMENT. The balance of the PARTIES - 7 - 8-26-09 Agreement D08-104 shall continue in the performance of the terms and conditions of this COOPERATIVE AGREEMENT unless and until the COOPERATIVE AGREEMENT is terminated as provided in Section 7 above. Section 10. Status of Original Agreement. Upon approval of this AGREEMENT by all PARTIES, the original COOPERATIVE AGREEMENT of September 30, 1983, as amended on September 25, 1995 and April 20, 1999, will be superseded by this AGREEMENT. Section 11. AGREEMENT Execution. This AGREEMENT may be executed in counterpart and the signed counterparts shall constitute a single instrument. IN WITNESS WHEREOF, the PARTIES hereto have executed this COOPERATIVE AGREEMENT the day and year first above written. - 8 - 8-26-09 COUNTY OF ORANGE, CALIFORNIA ®m �, i x $ Tey ,.� ,i4; '.:�s`; ;,5.»7"' • ®m IN WITNESS WHEREOF, the parties hereto have executed this AGREEMENT on the day and year first above written. Date: COUNTY OF ORANGE/ORANGE COUNTY FLOOD CONTROL DISTRICT By: Chairman of the Board of Supervisors SIGNED AND CERTIFIED THAT A COPY OF THIS AGREEMENT HAS BEEN DELIVERED TO THE CHAIRMAN OF THE BOARD By: DARLENE J. BLOOM Clerk of the Board of Supervisors of Orange County, California APPROVED AS TO FORM: COUNTY COUNSEL ORANGE COUNTY, CALIFORNIA Date: By: Deputy County Counsel CITY OF IRVINE Date: ATTEST: City Clerk By: 2009 Mayor APPROVED AS TO FORM: City Attorney of Irvine CITY OF LAKE FOREST Date: ATTEST: City Clerk 2009 By: Mayor APPROVED AS TO FORM: City Attorney of Lake Forest CITY OF NEWPORT BEACH Date: ATTEST: By: 2009 Mayor APPROVED AS TO FORM: City Clerk City Attorney of Newport Beach CITY OF TUSTIN Date: ATTEST: City Clerk 2009 By: Mayor APPROVED AS TO FORM: Ci%Attorney of Witin /X",& D 31"j C , Rv I (,f THE IRVINE COMPANY By: President of the Irvine Company Date: 2009 APPROVED AS TO FORM: Attorney for the Irvine Company THE IRVINE RANCH WATER DISTRICT Date: 2009 By: Chairman APPROVED AS TO FORM: Attorney for Irvine Ranch Water District CALIFORNIA DEPARTMENT OF FISH AND GAME By: Date: 2009 Director APPROVED AS TO FORM: Attorney for California Department of Fish and Game CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD, SANTA ANA REGION By: Chairman Date: 2009 APPROVED AS TO FORM: Attorney for California Regional Water Quality Control Board, Santa Ana Region