Loading...
HomeMy WebLinkAbout08 APPROVE AMEND. #3 AND FULL REINSTATEMENT OF AGREEMENT NO. D99-128 FOR WATERSHED NUTRIENT, FECAL COLIFORM, AND TMDL PROGRAMAGENDA REPORT MEETING DATE: AUGUST 3, 2010 TO: WILLIAM A. HUSTON, CITY MANAGER Agenda Item Reviewed: City Manager Finance Director FROM: DOUGLAS S. STACK, DIRECTOR OF PUBLIC WORKS/CITY ENGINEER SUBJECT: APPROVE THIRD AMENDMENT AND FULL RESTATEMENT OF AGREEMENT NO. D99-128 FOR THE SAN DIEGO CREEK AND NEWPORT BAY WATERSHED NUTRIENT, FECAL COLIFORM AND TOXICS TOTAL MAXIMUM DAILY LOAD (TMDL) PROGRAM SUMMARY The Third Amendment and Full Restatement of Agreement No. D99-128 (Agreement) provides for the funding cost share allocations for the purpose of funding and performing studies, research, monitoring and the development and implementation of programs related to the adopted TMDLs for nutrients, fecal coliform and toxics in the San Diego Creek and Newport Bay watersheds. The adopted TMDLs contain requirements to attain TMDL reduction targets over amulti-year period. If approved, the term of this Agreement shall continue until June 30, 2012. RECOMMENDATION It is recommended that the City Council approve the Third Amendment and Full Restatement of Agreement No. D99-128, "Agreement to Fund Nutrient, Fecal coliform, and Toxics Total Maximum Daily Loads (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 percentage is 5.92%. Sufficient funds have been budgeted and appropriated in the current fiscal year 2010-2011 Public Works Department Operating Budget to cover the City's fiscal year cost share allocation of $71,413. DISCUSSION AND BACKGROUND Agreement No. D99-128 forms the basis of cooperation for the implementation of the adopted TMDLs within the San Diego Creek and Newport Bay Watershed. The primary purpose of the TMDLs is to control and reduce the amount of fecal coliform, nutrients, and toxic contaminants entering the Newport Bay pursuant to provisions of the Clean Water Act and the Municipal National Pollutant Discharge Elimination System (NPDES) Stormwater Permit as adopted by the Santa Ana Regional Water Quality Control Board. 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 San Diego Creek/Newport Bay Watershed. The adopted TMDLs contain requirements for studies, monitoring, and development of programs to attain TMDL containment reduction targets over the multi-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 Laguna Hills, the City of ~.. Amendment No 3 to Agreement D99-128 August 3, 2010 Page 2 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. The Agreement was later amended to extend the term of the agreement and add Tustin Legacy Community Partners, Orange County Great Park Corporation, Lennar Homes of California, Inc., and the California Department of Transportation as contributing partners to this agreement. Amendment No. 3 to the Agreement extends this partnership for an additional two years and will be effective back to July 1, 2010. Amendment No. 3 also acknowledges that Tustin Legacy Community Partners and Caltrans have withdrawn from the Agreement, and that the Orange County Great Park Corporation has combined as a party with the City of Irvine. Compliance with the requirement of the TMDLs 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. 3 and authorize the Mayor and City Clerk to execute the agreement on behalf of the City. . Stack, P.E. Doug A derson of Public Works/City Engineer Transportation and Development Services Manager Attachment: Third Amendment and Full Restatement of Agreement D99-128 S:\City Council Items\2010 Council ItemsWgreement D99-128_dSS.dOCX Agreement No. D99-128 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 ("LACUNA HILLS"), the City of Laguna Woods ("LACUNA 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". 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 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, 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, 1 Final Version ?/8/2011 Agreement No. D99-12E 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. D99-128 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 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 2 Final Vezsion 7/8/2G1 Agreement No. D99-12 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 long-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 A, 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 entirety. 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 and performing studies, research, monitoring and the development and implementation of programs related to the adopted TMDLs for nutrients, fecal coliform and toxics in the San 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 allocations for the PARTIES for the duration of the AGREEMENT. Section 9. 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 3 Final Version 7 Agreement No. D99-12E 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 4 Final Version 7/8/201 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 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 5 Final Version 7/8/201 Agreement No. D99-12£ 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 6 Final Version 7/8/201 Agreement No. D99-12£ 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 tc such matter. Section 14. SEVERABILITY. 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 7 Final Version 7/8/7_01 Agreement No. D99-12' 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 24269 E1 Toro Road Laguna Woods CA 92637 Facsimile: (949) 639-0591 Director of Public Works City of Lake Forest 25550 Commercentre Dr. Ste 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) 744-5573 Director of Public Works City of Santa Ana 101 W. 4t° St. Santa Ana, CA 92701 Facsimile: (719) 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 8 Final Version 7/8/201 Agreement No. D99-128 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: 9 Final Version 7/8/201 Agreement No. D99-12f Date: COUNTY OF ORANGE, a political subdivision of the State of California By: Chairman of the Board of Supervisors APPROVED AS TO FORM: COUNTY COUNSEL By: Geoffrey K. Hunt, Deputy Date: ORANGE COUNTY FLOOD CONTROL DISTRICT a body corporate and politic Chairman of the Board of Supervisors By: 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 Date: 10 Final Version 7/8/201 Agreement No. D99-12E Date: APPROVED AS TO FORM: ATTEST: City Clerk CITY OF COSTA MESA Mayor By: City Attorney of Costa Mesa 11 Final Version 7/8/201 Agreement No. D99-12 Date: APPROVED AS TO FORM: ATTEST: City Clerk CITY OF IRVINE By: Mayor City Attorney of Irvine 12 Final Version 7/8/201 Agreement No. D99-121 Date: APPROVED AS TO FORM: ATTEST: City Clerk CITY OF LAGUNA HILLS By: Mayor City Attorney of Laguna Hills 13 Final Version 7/8/201 Agreement No. D99-12 Date: APPROVED AS TO FORM: ATTEST: City Clerk CITY OF LAGUNA WOODS By: Mayor City Attorney of Laguna Woods 14 Final Version 7 Agreement No. D99-12 Date: APPROVED AS TO FORM: ATTEST: City Clerk CITY OF LAKE FOREST By: Mayor City Attorney of Lake Forest 15 Final Version 7/8 Agreement No. D99-12 Date: APPROVED AS TO FORM: ATTEST: City Clerk CITY OF NEWPORT BEACH By: Mayor City Attorney of Newport Beach 16 Final Version 7/8/201 Agreement No. D99-12 Date: APPROVED AS TO FORM: ATTEST: City Clerk CITY OF ORANGE By: Mayor City Attorney of Orange 17 Final Version 7/8/20] Agreement No. D99-12E Date: APPROVED AS TO FORM: ATTEST: City Clerk CITY OF SANTA ANA By: Mayor City Attorney of Santa Ana 18 Final Version 7/6/201 Agreement No. D99-1 CITY 08' TU9TIN Data • BY: .~„.~ Mayor APPROVED AS TO FORM: ATTEST: City Clerk C'-y Attorney Tuat3n 18 Agreement No. D99-12 Date: THE IRVINE RANCH WATER DISTRICT By: Name:_ Title: Date: By: Name: Title: 20 Final version 7 Agreement No. D99-12 Date: Date: THE IRVINE COMPANY By: Name: Title: By: Name• Title: 21 Final Version 7/8/201 Agreement No. D99-12 Date: Date: Lennar Homes of California, a Developer Member of Heritage Fields Limited Liability Company By: Name: Title: By: Name: Title: 22 Final Version 7 Agreement No. D99-12 EXHIBIT A _, CC PA12TY ~~ Cost Sharer~Pertl~ettage .- .. ,,.+-rr~r Costa Mesa 4.26% Irvine 24.240 Laguna Hills 0.540 Laguna Woods 0.90% Lake Forest 5.07% Newport Beach 6.97% Orange 0.890 Santa Ana 13.520 Tustin 5.92% County of Orange 3.82% OCFCD 7.290 IRWD 12.15°s TIC 12.150 Lennar 2.760 (TOTAL 100.00°s 23 Final Version 7/6