HomeMy WebLinkAbout14 WATER QUALITY ORD 05-06-02AGENDA REPORT
NO. 14
05-06-02
400-70 ~
MEETING DATE: MAY 6, 2002 ~
TO:
FROM:
SUBJECT:
WILLIAM A. HUSTON, CITY MANAGER
PUBLIC WORKS DEPARTMENT/ENGINEERING DIVISION
APPROVAL OF THE WATER QUALITY ORDINANCE IMPLEMENTATION
AGREEMENT WITH THE ORANGE COUNTY FLOOD CONTROL DISTRICT
SUMMARY
The Water Quality Ordinance Implementation Agreement is a standard form agreement, approved
by the Orange County Board of Supervisors, to provide water quality ordinance services in
accordance with the requirements of the Santa Ana Region National Pollutant Discharge
Elimination System (NPDES) stormwater permit. Under this agreement, the City of Tustin will
have the County's authorized inspector services available as a supplemental resource to respond
to pollution incidents.
RECOMMENDATION
It is recommended that the City Council approve the Water Quality Ordinance Implementation
Agreement No. D02-024 with the Orange County Flood Control District, and authorize execution
of the agreement by the Mayor and City Clerk.
FISCAL IMPACT
The agreement requires the City to pay the amount of $826.77 for its portion of the pollution
prevention annual fixed cost fee. This fee is determined for each participating city based upon its
area and population. When the City exercises the on-call authorized inspector services the
County will invoice the City for actual costs. However, there will be opportunity for the City to
recover these costs in situations where the responsible party can be identified. The proposed FY
2002/03 NPDES Operating Budget includes funding for the annual fee and for the on-call
services.
BACKGROUND AND DISCUSSION
The NPDES Stormwater Permit Implementation Agreement was first signed into effect in
December 1990. This agreement, between the County and the cities in the Santa Ana Region
Watershed, was prepared to delegate the responsibilities between the County and cities for
compliance with the Santa Ana Region NPDES Stormwater Permit. The recently adopted Santa
Ana Region NPDES Stormwater Permit (Third Term Permit) establishes a new requirement for all
municipalities to provide a water quality enforcement program to investigate and track water
quality violations within their jurisdictions. Currently, the City's code enforcement staff provides
this service on a limited basis. The approval of the Water Quality Ordinance Implementation
Agreement will provide additional qualified support when it is determined necessary by the City.
Approval of Water Quality Ordinance Implementation Agreement
May 6, 2002
Page 2
The agreement has been reviewed and approved as to form by the City Attorney.
Tim D. Serlet ' / ,,.__~.
Director of Public Works/City Engineer
TDS:DRK:Approval of Water Qual Ord Implementation Agr. doc
Attachment: Water Quality Ordinance Implementation Agreement D02-024
Dana R. Kasr:lan ' ' ~"-~
Engineering Services Manager
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Agreement No. D02-024
WATER QUALITY ORDINANCE IMPLEMENTATION A~R~rm-NT WITH THE CITY OF TUSTIN
THIS AGREEMENT, hereinafter referred to as "AGREEMENT" and for purposes of
identification numbered D02-024, is made and entered into this day of
, , by and between the City of Tustin, a municipal
corporation, hereinafter designated as "CITY" and the Orange County Flood Control
District, a body corporate and politic, hereinafter referred to as "DISTRICT" These
entities are hereinafter sometimes jointly referred to as "PARTIES" and individually
as "PARTY"
WI TNES SETH
WHEREAS, pursuant to 33 United States Code Section 1251 et seq., as amended
the PARTIES are subject to a municipal National Pollutant Discharge Elimination
System (NPDES) Stormwater Permit and 40 CFR 122.26 (d)(2)(i)(A-F), which requires
each to control various potential pollutant sources into the municipal storm drain
system through enforcement of an adequate system of local legal authority; and
WHEREAS, on December 18, 1990 the County entered into the National Pollutant
Discharge Elimination System Stormwater Permit Implementation Agreement (hereinafter
referred to as "IMPLEMENTATION AGREEMENT") with CITY and other parties. This
IMPLEMENTATION AGREEMENT was subsequently amended on October 26, 1993; and
WHEREAS, the IMPLEMENTATION AGREEMENT specifies that the CITY is principally
responsible for implementing the National Pollutant Discharge Elimination System
Permit within its jurisdictional boundaries; and
WHEREAS, the IMPLEMENTATION AGREEMENT contains provisions allowing CITY to name
DISTRICT as "enforcer of a water pollution control ordinance"; and
WHEREAS, CITY has adopted a water quality ordinance (hereinafter referred to as
"CITY ORDINANCE") that provides in Section 4906-b that the CITY may "contract for the
services of any public agency or private enterprise to carry out the planning
approvals, inspections, permits and enforcement authorized by this Ordinance"; and
WHEREAS, said CITY ORDINANCE defines "AUTHORIZED INSPECTOR" as persons
designated to investigate compliance and detect violations of the CITY ORDINANCE; and
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Agreement No. D02-024
WHEREAS, said CITY ORDINANCE contains provisions to control pollutants from
both existing and new urban development and significant redevelopment; and
WHEREAS, Section 8-1-90 (c) of those Codified Ordinances of the DISTRICT
relating to Storm Water Management and Urban Runoff provides that "the DISTRICT may,
upon designation by any .city within COUNTY , and at no cost to DISTRICT, be named as
an Authorized Inspector for that city"; and
WHEREAS, in furtherance of said program implementation, CITY now wishes to
contract with DISTRICT to serve as AUTHORIZED INSPECTOR pursuant to the CITY
ORDINANCE, and to pay DISTRICT for the full cost of providing those services; and
WHEREAS, DISTRICT is willing to provide such services to the extent allowed by
available staffing resources (See Section l(g)and 2(a))and to accept payment from
CITY for the full cost of providing those services.
NOW, THEREFORE, the PARTIES hereto, in consideration of the mutual covenants
and agreements contained in this AGREEMENT, agree as follows:
SECTION 1. DISTRICT RESPONSIBILITIES
Upon request from designated CITY representatives, DISTRICT, upon availability of
staffing resources, is authorized to:
(a) Act as an AUTHORIZED INSPECTOR on behalf of CITY and shall investigate compliance
with, detect violations of, and/or take actions pursuant to the CITY ORDINANCE,
generally including activities such as water pollution incident response, clean-
up and/or enforcement activities associated with the following:
(i) In response to specific pollutant releases originating from within CITY
limits;
(ii) In response to specific pollutant releases originating from within CITY
limits that are detected in DISTRICT facilities; and
(iii) In response to adverse findings of water quality monitoring that are
attributable to specific pollutants originating within CITY limits.
(b) Perform services in Section (a) of this AGREEMENT as set forth in the CITY
ORDINANCE and its accompanying Enforcement Consistency Guide;
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Agreement No. D02-024
(i) Notify designated CITY National Pollutant Discharge Elimination System
Permit representative of request for water pollution incident response,
clean-up and/or enforcement activities received from designated CITY
representatives and Departments;
(ii) Prepare annual list of investigations conducted on CITY's behalf for CITY
to submit in the Annual Progress Report to the Regional Water Quality
Control Board(s);
(c) Upon written request by the CITY;
(i) Provide to CITY all incident reports and related documents prepared in
connection with DISTRICT'S performance under this AGREEMENT and make
such records available for inspection by authorized representatives of
CITY during normal business hours;
(ii) Utilize services of outside consultants and contractors to aid in the
investigation, cleanup and/or enforcement activities undertaken pursuant
to this AGREEMENT. If this is required, DISTRICT shall utilize
consultants and contractors hired by the CITY under the CITY'S standing
purchase order agreements;
(d) Invoice CITY within forty-five (45) days of the signing of this AGREEMENT by the
DISTRICT Board of Supervisors for the initial annual pollution response on-call
fee identified in Exhibit A, prorated for the balance of the fiscal year ending
June 30th from the date of AGREEMENT signing. For subsequent billing years, by
June 30th of each year the DISTRICT shall review and revise Exhibit A as necessary
based on the then current on-call labor rates, the number of cities contracting
with the DISTRICT for water quality ordinance services and the latest land area
and population data as specified in the IMPLEMENTATION AGREEMENT. The DISTRICT
shall invoice CITY within 60 days of the beginning of each fiscal year (July 1)
based on the revised Exhibit A.
(e) Invoice CITY on a monthly basis for all work performed by DISTRICT under this
AGREEMENT on behalf of CITY. DISTRICT will not invoice any "PERSON", as defined
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Agreement No. D02-024
in CITY ORDINANCE, identified as causing or contributing to a violation of said
ORDINANCE. Invoice from DISTRICT to CITY shall include actual costs incurred by
DISTRICT for labor, equipment and services. Said actual costs include overhead
(indirect costs such as tools, computers, etc.) and burden (employee benefits).
(f) DISTRICT shall indemnify, defend with counsel approved by CITY, and hold CITY,
its elected and appointed officials, officers, agents, employees and contractors
free and harmless from any claim, cause of action, or liability whatsoever, based
or asserted upon any act or omission of DISTRICT, its elected and appointed
officials, officers, agents, employees and contractors, for property damage,
bodily injury or death or any other element of damage of any kind or nature,
relating to or in any way connected with or arising from the accomplishment of
the services to be performed by DISTRICT under this AGREEMENT, except as provided
for in Sections 2 (h) and 2 (i) below.
(g) Nothing in this Agreement shall be interpreted as an assumption by the DISTRICT
of any obligations the CITY may have under law or applicable permits to implement
a municipal NPDES stormwater program. This AGREEMENT is solely for the purpose
of authorizing DISTRICT personnel to act as an AUTHORIZED INSPECTOR for the CITY.
This AGREEMENT creates no obligation to provide those services. AUTHORIZED
INSPECTOR services will be provided only to the extent permitted by DISTRICT
resources.
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Agreement No. D02-024
SECTION 2. CITY RESPONSIBILITIES:
CITY shall:
(a) Identify, in writing, the designated CITY National Pollutant Discharge
Elimination System (NPDES) Permit and Authorized Inspector representatives that will
be responsible for water pollution incident response, clean-up and/or enforcement
activities when DISTRICT involvement is not requested, approved or available. The
designations shall include representative names, titles, departments and
business/after hours phone numbers;
(b) Designate in writing those CITY representatives authorized to submit service
requests to DISTRICT on behalf of CITY. Any request from CITY fire and police
agencies [for cities with contracted services insert Orange County Fire Authority and
Orange County Sheriffs Department as applicable] shall represent CITY approval. The
designations shall include representative names, titles, departments and
business/after hours phone numbers;
(c) Meet periodically with DISTRICT to discuss the services being provided, review
individual cases, and ensure DISTRICT enforcement activities are consistent with CITY
ORDINANCE and accompanying Enforcement Consistency Guide;
(d) Provide in writing any requests for incident reports or related documents
prepared in connection with DISTRICT'S performance under this AGREEMENT (Section 1
(c) i));
(e) Provide information in writing regarding any standing purchase order agreements
issued by CITY for employment by DISTRICT of outside consultants and contractors
(Section 1 (c) ii)). Information provided should include contractor/consultant
contact information, purchase order number and services provided.;
(f) Make payment to DISTRICT within thirty (30) days of receipt of annual or monthly
invoice from DISTRICT for work performed in accordance with this AGREEMENT and
invoice any "PERSON", as identified in CITY ORDINANCE, identified as being
responsible for violations of the water quality ordinance;
(g) Assume any and all liability for failure to approve needed work and
expenditures to respond to pollutant releases; 5
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Agreement No. D02-024
Ch) CITY shall indemnify, defend with counsel approved by DISTRICT, and hold
DISTRICT, its elected and appointed officials, officers, agents, employees and
contractors, free and harmless from any claim, cause of action or liability
whatsoever, based or asserted upon any act or omission of CITY, its elected and
aDpointed officials, officers, agents, employees and contractors for property
damage, bodily injury or death or any other element of damage of any kind or
nature, specifically relating to or in any way connected with or arising from the
extent and/or adequacy of investigation, or clean-up of pollutants on behalf of
CITY, performed by, on behalf of, or under the supervision of DISTRICT personnel,
acting in good faith and with due diligence in fulfillment of DISTRICT's
responsibilities pursuant to this AGREEMENT; and
(i) Where CITY staff is providing pollution response duties hereinunder, CITY shall
indemnify, defend with counsel approved by DISTRICT, and hold DISTRICT, its elected
and appointed officials, officers, agents, employees and contractors free and
harmless from any claim, cause of action, or liability whatsoever, based or
asserted upon any act of CITY, its elected and appointed officials, officers,
agents, employees and contractors, for property damage, bodily injury or death or
any other element of damage of any kind or nature, relating to or in any way
connected with or arising from the accomplishment of services performed by CITY in
implementing or enforcing CITY ORDINANCE to which DISTRICT was not a party of.
SECTION 3. GENERAL PROVISIONS
(a) The term of this AGREEMENT shall be for a period of two (2) years commencing with
the date.of the execution of this AGREEMENT, renewable for an additional three (3)
years upon mutual agreement of the PARTIES as memorialized in writing by the CITY and
the Director of Public Facilities and Resources Department (PFRD), or her designee,
on behalf of the DISTRICT.
(b) Either party may terminate this AGREEMENT in advance of the termination date,
upon sixty (60) days written notice to the other party sent to the following
addresses
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Agreement No. D02-024
DISTRICT:
Orange County Flood Control District
Attn: Director, Public Facilities and Resources Department
Post Office Box 4048
Santa Aha, California 92702-4048
CITY:
City of Tustin
Attn: Tim D. Serlet, Director of Public Works/City Engineer
300 Centenial Way
Tustin, California 92780
Upon termination by either PARTY, the DISTRICT shall inform the CITY of any ongoing
investigations prior to the termination date and return the Drorated share of any
remaining annual pollution response on-call fees within forty-five (45) days after
the termination date for the fiscal year in which the termination occurs. Upon
termination it will be the responsibility of the CITY to complete any water pollution
incident response, clean-uD and/or enforcement activities associated with any ongoing
investigations.
(c) PARTIES agree to fully cooperate with and assist one another in all matters
pertaining to losses arising from costs not reimbursed by any "PERSON", as identified
in CITY ORDINANCE, in performance of this AGREEMENT. If a claim is made, or suit is
brought against a PARTY to this AGREEMENT likely to be related to the performance
thereof, said PARTY shall immediately forward every claim, demand, notice, summons or
other process received by it to the other PARTY hereto.
(d) 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.
(e) No alteration or variation of the terms of this AGREEMENT shall be valid unless
made in writing and signed by the PARTIES hereto, and no oral understanding or
agreement not incorporated shall be binding on any of the PARTIES hereto.
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(f) The PARTIES to this AGREEMENT represent and warrant that this AGREEMENT has been
duly authorized and executed and constitutes the legally binding obligation of their
respective organization or entity, enforceable in accordance with its terms.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the dates opposite their respective signatures:
ORANGE COUNTY FLOOD CONTROL DISTRICT,
a body corporate and politic,
Date: By:
Director
Public Facilities and Resources Department
APPROVED AS TO FORM
COUNTY COUNSEL
By:
Deputy
Date:
CITY OF TUSTIN
Date:
By:
Mayor
APPROVED AS TO FORM:
City Clerk