HomeMy WebLinkAbout12 - Administration of Total Maximum Daily Loads - TMDLs - in Newport BayCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 12
June 27, 2006
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: City Manager's Office
Dave Kiff, Assistant City Manager
949/644 -3002 or dkiff @city.newport- beach.ca.us
SUBJECT: Amendment #1 to a Cooperative Agreement for the Administration of
Total Maximum Daily Loads (TMDLs) in Newport Bay
ISSUE:
Should the City of Newport Beach participate in a Cooperative Agreement to administer
Newport Bay's TMDLs on a watershed -wide basis?
RECOMMENDATION:
Authorize the Mayor to sign and execute Amendment #1 to the 2003 Cooperative
Agreement to fund Nutrient, Fecal Coliform and Toxics Total Maximum Daily Load
(TMDL) Studies & Programs in the Newport Bay Watershed.
DISCUSSION:
Newport Bay is an impaired water body per §303(d) of the federal Clean Water Act. As
such, the US Environmental Protection Agency (US EPA) and the State Water
Resources Control Board (SWRCB) via the California Regional Water Quality Control
Board, Santa Ana Region (Regional Board) is directed to prepare clean up plans --
called "Total Maximum Daily Loads" (TMDLs) -- for the Bay. TMDLs attempt to
eliminate water quality impairments within a certain amount of time. Newport Bay is
listed on the §303(d) List for the following substances:
• Sediment • Fecal Coliform bacteria
• Nutrients . Toxic Pollutants
The adopted TMDLs contain requirements for studies, monitoring and the development
of programs to attain TMDL contaminant reduction targets over a multi -year period.
Additionally, the requirements of the TMDLs are incorporated into the National Pollutant
Amendment #1 to Cooperative Agreement for TMDLs
June 27, 2006
Page 2
Discharge Elimination System (NPDES) Municipal Separate Storm Sewer System
(MS4) Permit.
While Newport Bay is wholly within the city limits of Newport Beach, the Newport Bay
watershed includes more than 150 square miles of territory. Because the Bay's
impairments involve pollutants from throughout the watershed, the duty to adhere to the
TMDLs applies to many of the entities within the watershed, including:
• The County of Orange;
• The Orange County Flood Control District;
• The Irvine Ranch Water District (IRWD);
• The Irvine Company; and
• The cities of Costa Mesa, Irvine, Laguna Hills, Laguna Woods, Lake Forest, Newport
Beach, Orange, Santa Ana, and Tustin ( "watershed cities ").
Each of the parties listed above cooperates -- via a Cooperative Agreement (formally
executed by all of the parties in September 2003 and which went to your Council on
June 24, 2003) -- to implement and administer the obligations of the TMDLs through at
least 2008. The parties developed the Agreement 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.
Currently, the cost share allocations for the Agreement are divided between IRWD, The
Irvine Company and the urban component assigned to the Watershed Cities, County of
Orange, and Orange County Flood Control District. The respective shares of IRWD
and The Irvine Company shall remain at 12.5 percent each for the duration of this
agreement. The urban cost share allocation for the 5 -year duration of the agreement is
75 percent.
Each party to the Cooperative Agreement must consent to add or delete partners. This
Council Action proposes Amendment No. 1 to the Agreement to add four new cost -
share parties:
• The California Department of Transportation (Caltrans)
• Tustin Legacy Community Partners
• Lennar, and
• The Great Park Corporation.
Each of the new parties has regulatory issues with the constituents covered by the
TMDLs and has determined that cooperation at a watershed scale with the current
parties is appropriate and cost - effective. Their cost share has been negotiated based on
their relative land area in the watershed and, when applicable, level of development
activity. The revised funding formula will result in the current parties collectively paying
88% of the budget with the new cost -share parties contributing 12% (Caltrans 5 %;
Lennar 2.5 %, Tustin Legacy Community Partners 2.5 %; and, the Great Park
Corporation 2.0% respectively). As a result, the new cost -share formulas (if the
Amendment is adopted) will be as follows:
Amendment #1 to Cooperative Agreement for TMDLs
June 27, 2006
Page 3
Total Cost Share
Program Participants
2006 -07
Budget
88.00%
Costa Mesa
75%
5.97%
$ 69,120
Irvine
31.35%
$ 363,143
Laguna Hills
0.74%
$ 6,601
Laguna Woods
1.35%
$ 15,583
Lake Forest
7.06%
$ 81,746
Newport Beach
9.04%
$ 104,680
Orange
1.28%
$ 14,786
Santa Ana
19.01%
$ 220,231
Tustin
8.03%
$ 93,007
Count of Orange
6.17%
$ 71,482
OC Flood Control District
10.00%
$ 115,820
The Irvine Company
12.50%
$ 193,033
IRW D
12.50%
$ 193,033
5%
lCaltrans
87,742
2%
The Great Park Corporation
5,097
2.50%
Lennar Homes
r$E43,871
2.50%
Tustin Le ac Partners
43,871
Total Budget for FY 2006 -07 $ 1,754,846
The addition of the four new cost -share parties will therefore result in decreased costs to
the current parties. For FY 2005 -06 this amounted to $167,800 on the total budget
countywide of almost $1.4 million.
Environmental Review: The City Council's approval of this Agenda Item does not
require environmental review.
Public Notice: This agenda item may be noticed according to the Brown Act (72 hours
in advance of the public meeting at which the City Council considers the item).
Funding Availability This item does not involve an expenditure. The City's TMDL
obligations for FY 2006 -07 are $104,680 and are included in the proposed budget.
Submitted by
]%?
Dave V
Assistant City Manager
Attachments: Cooperative Agreement
Amendment No. 1 to Cooperative Agreement
Amendment No. 1 to Agreement No.D99-12£
1 AMENDMENT NO. 1
AGREEMENT TO FUND NUTRIENT, FECAL COLIFORM AND TOXICS TOTAL MAXIMUM DAILY LOAD (TMDL)
2 STUDIES IN THE NEWPORT BAY WATERSHED
3 THIS AMENDMENT, for purposes of identification numbered Amendment No. 1 to
4 Agreement No. D99 -128, is made and entered into this day of , 2006
5 ( "AMENDMENT "), by and between the County of Orange ( "COUNTY "), the Orange County Flooc
6 Control District ( "DISTRICT "), the City of Costa Mesa ( "COSTA MESA "), the City of
7 Irvine ( "IRVINE "), the City of Laguna Hills ( "LAGUNA HILLS "), the City of Laguna Woods
B ( "LAGUNA WOODS "), the City of Laka Forest ( "LAKE FOREST "), the City of Newport Beach
( "NEWPORT BEACH "), the City of Orange ( "ORANGE "), the City of Santa Ana ( "SANTA ANA "),
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the Cizy of Tustin ( "TUSTIN "), the Irvine Ranch Water District ( "IRWD "), The Irvine
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Company ( "TIC "), the California Department of Transportation ( "CALTRANS "), Tustin
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Legacy Community Partners ( "TLCP "), Lennar Homes of California, Inc.( "LENNAR "), and
12 Orange County Great Park Corporation ( "GPC "). The seventeen entities are hereinafter
13 sometimes jointly referred to as the "PARTIES" and individually as "PARTY ". The cities
14 are hereinafter sometimes jointly referred to as the "CITIES ". Thirteen entities (all
15 entities except for CALTRANS, TL(-'P, LENNAR, and GPC) are sometimes jointly referred tc
as the "ORIGINAL PARTIES."
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WITNESSETH
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WHEREAS, the ORIGINAL PARTIES entered into Agreement No. D99 -128 on
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September 18, 2003, referred to hereinafter as "AGREEMENT ", to provide funding for the
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Nutrient, Fecal Coliform and To r:i cs Total Maximum Daily Load (TMDL) studies in the
20 Newport Bay Watershed; and,
21 WHEREAS, according to Section 6 of the AGREEMENT, the AGREEMENT may be
22 amended in writing only with th�� unanimous written approval of the ORIGINAL PARTIES;
23 and,
24 WHEREAS, the ORIGINAL PARTIES agree to amend the AGREEMENT to add
CALTRANS, TLCP, LENNAR and GPC as PARTIES to the AGREEMENT; and,
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WHEREAS, the PARTIES have reached agreement on a new funding formula,
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which states that (1) CALTRANS will contribute a fixed five percent (5.08) of the
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Amendment No. 1 to Agreement No.D99 -12f
1 total budget cost, (2) TLCP will contribute a fixed two and one half percent (2.5 %) of
2 the total budget cost, (3) LENNAR will contribute a fixed two and one half percent
3 (2.5%) of the total budget cost, (4) GPC will contribute a fixed two percent (2.0%) of
4 the total budget cost, and (5) the ORIGINAL PARTIES will cost -share eighty eight
percent (88 %) of the total budget costs;
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WHEREAS, the ORIGINAL PARTIES will further cost -share their 88% allocation
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based upon the original cost -share formula in the AGREEMENT, such that (1) the COUNTY,
7 DISTRICT and CITIES contributions are based on the watershed land area and population
8 applied to the formula in the Amendment and Reinstatement of the National Pollutant
9 Discharge Elimination System Stormwater Implementation Agreement dated June 25, 2002,
10 and (2) TIC and IRWD contributions are based on a fixed twelve and one -half percent
11 (12.5%) each.
12 NOW, THEREFORE, in consideration of the foregoing, it is agreed by and
between the PARTIES hereto that the AGREEMENT shall be amended as follows:
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Section 1. Each and all of the provisions of the AGREEMENT remains in
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full force and effect, except that Section 3, Section 4, Section 5, Section 10 and
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Section 16 and Exhibit A and Exhibit C are amended in their entirety, as follows:
16 Section 2. Section 3 of the AGREEMENT, entitled "FUNDING," shall be
17 amended to read in full as follows: Exhibit A, which is attached to this AMENDMENT
18 and by this reference is made a part hereof, presents the cost -share allocations for
19 the PARTIES. As stated in Exhibit A (Table A -1), for the duration of the AGREEMENT as
20 amended, the ORIGINAL PARTIES shall provide eighty -eight percent (88 %) of the total
budget costs, CALTRANS shall provide five percent (5.0 %) of the total budget costs,
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TLCP shall provide two and one half percent (2.50) of the total budget costs, LENNAR
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shall provide two and one half percent (2.58) of the total budget costs, and Orange
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County Great Park Corporation shall provide two percent (2.0 %) of the total budget
24 costs. As shown in Exhibit A (Table A -2), the ORIGINAL PARTIES' eighty eight percent
25 (88`s) share of the total budget costs (hereafter "ORIGINAL COST ALLOCATION ") shall be
26 cost - shared between an urban allocation and an open space allocation. The urban
allocation shall remain at seventy five percent (75 %) of the ORIGINAL COST ALLOCATION
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Amendment No. 1 to Agreement No.D99 -12E
1 and the respective shares of IRWD and TIC shall remain at twelve and one half percent
2 (12.5 %) of the ORIGINAL COST ALLOCATION for the duration of this AGREEMENT as amended
3 herein. The individual cost shares for the COUNTY, DISTRICT and CITIES will be
revised once every year pursuant to the formula provided in Exhibit B to the
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AGREEMENT, which is attached to the AGREEMENT and made a part hereof, based on changes
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in watershed land area and population. The individual cost shares for the COUNTY,
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DISTRICT and CITIES shall be calcilated by the COUNTY Resources and Development
7 Management Department, Environmental Resources Section from population, land area and
8 watershed area data. These calculations shall be completed by January 1 of each year
9 and shall be included in the annual budget proposal.
10 Section 3. Section 4 of the AGREEMENT, entitled "PROGRAM BUDGETS AND
11 COSTS" shall be amended to read in full as follows: The COUNTY shall submit a scope
12 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
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changes, an estimate of all planned expenditures and an estimate of the payment
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required from each PARTY for the following fiscal year. For the State of California
15 budgeting requirements, CALTRANS' contribution shall not exceed $150,003 or five
16 percent (5.0 %) of the total budget costs, whichever is less, for each fiscal year
17 during the term of the AGREEMENT. If CALTRANS contribution would be greater than
18 $150,000 for a given fiscal year, the amount over $150,000 ( "EXCESS AMOUNT ") shall be
19 cost - shared as described in Section 2 of this Amendment, with the exception that for
20 such EXCESS AMOUNT, the ORIGINAL COST ALLOCATION shall be ninety -three percent (93$)
and CALTRANS contribution shall be zero percent (0$).
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The PARTIES shall be permitted to review and approve the program scope of work.
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and budget for the forthcoming year. Criteria for approval shall be affirmative
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written responses from all of tF.e PARTIES. The COUNTY and DISTRICT will constitute
24 one approving PARTY.
25 The tasks and expenditures for each fiscal year will be presented and calculated
25 as shown in Exhibit C, which is attached hereto and made a part hereof. All tasks and
expenditures will be updated each fiscal year as part of the budget approval process.
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Amendment No. 1 to Agreement No.D99-
Therefore, Exhibit C as attached is a form to be completed every 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
lapproved scope of work. Recoverable costs will also include an overhead charge
calculated by the County Auditor- Controller which includes Resources and Development
(Management Department overhead and County -wide cost allocation plan.
Section 4. Section 5 of the AGREEMENT, entitled "PAYMENTS" shall be
amended to read in full as follows: Within 15 calendar days of the effective date of
this AMENDMENT, the COUNTY shall send the PARTIES an invoice for a deposit which
constitutes their share of the total first year costs identified in Exhibit C (Table
C -1). Each of the PARTIES shall pay the deposit within 45 calendar days of their
respective receipt of the invoice.
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 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 take into consideration any outside funding provided for programs
in the approved budget from entities not party to this AMENDMENT in the manner
(presented in Exhibit C (Table C -2).
After the initial billing for the program, 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
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Amendment No. 1 to Agreement No.D99 -12E
1 PARTY'S deposit shall be based on its prorated share of the approved annual budget,
2 reduced by the sum of (a) its prorated share of any surplus identified in the prior
3 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.
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Interest earned on the PARTIES' deposits will not be paid to the PARTIES, but
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will be credited against the PART--ES' share of the program costs.
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Upon termination of the program, a final accounting shall be performed by the
7 COUNTY. I£ costs remaining after the deduction of interest costs exceed the sum of
6 the deposits, the COUNTY shall invoice each PARTY for its prorated share of the
9 deficit. Each PARTY shall pay the invoice within 45 calendar days of the date of the
10 invoice. If the sum of the deposits, including interest, exceeds the tests, the
11 COUNTY shall reimburse to each PARTY its prorated share of the excess, within 45
12 calendar days of the final accounting.
Section 5. Section 10 of the AGREEMENT, entitled "NO THIRD PARTY
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BENEFICIARIES ", is amended to read in full as follows: Nothing expressed or mentioned
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in this AGREEMENT is intended or shall be construed to give any person, other than the
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PARTIES hereto and any entity in which a PARTY has a legal interest (such as, but not
16 limited to, a limited liability membership interest or a partnership interest), and
17 any permitted successors or, assigns of a PARTY, any legal or equitable right, remedy
16 or claim under or in respect of =his AGREEMENT or any provisions herein contained.
19 This AGREEMENT and any conditions and provisions hereof is intended to be and is for
20 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,
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agency or entity.
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Section 6. Section 16 of the AGREEMENT, entitled "NOTICES ", shall be
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amended to read in full as fDllcw: All notices required or desired to be given under
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this AGREEMENT as amended shall be in writing and (a) delivered personally, or (b)
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sent by certified mail, return receipt requested or (c) sent by telefacsimile
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commcnicaticn followed by a mai -ed copy, to the addresses specified below, provided
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Amendment No. 1 to Agreement No.D99-
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
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 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) 532 -6444
Director of Public Works
City of Santa Ana
101 W. 4th St.
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Amendment No. 1 to Agreement No.
Santa Ana, CA 92701
Facsimile: (714) 647 -5635
Director of Public Works
City of Tustin
300 Centennial Way
Tustin, CA 92780
Facsimile: (714) 734 -E991
Director, RDMD
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
Vice President of Environmental Affairs
The Irvine Company
550 Newport Center
Newport Beach, CA 92658 -8904
Facsimile: (949) 720 -2448
Office Chief, Environmental Planning
California Department of Transportation
3337 Michelson Dr. Ste 380
Irvine, CA 92612 -8894
Facsimile: (999) 724 -2519
David B. Placek
Tustin Legacy Commun:.ty Partners
Senior Project Manager
250 Commerce, Suite 100
Irvine, CA 92602
Facsimile: (949) 453-8994
Lennar Homes of California
Jim Werkmeister
7030 Trabuco Road, Bailding 83
Irvine, California 92618
Facsimile: (949) 551 -1186
Glen Worthington, Manager of Planning
Orange County Great Park Corporation
P.O. Box 19575
Irvine, CA 92623 -9`_75
Facsimile: (949) 724 -7407
iN WITNESS WHEREOF, the PRRTIES hereto have executed this AMENDMENT the day and
year first above written:
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Amendment No. 1 to Agreement No.D99 -128
COUNTY OF ORANGE,
a political subdivision of the State of
California -
Date: By:
Chairman of the Board of Supervisors
ORANGE COUNTY FLOOD CONTROL DISTRICT
a body corporate and politic
By:
Chairman of the Board of Supervisors
APPROVED AS TO FORM:
COUNTY COUNSEL
By:
Geoffrey K. Hunt, Deputy _
Date:
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:
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Date:
APPROVED AS TO FORM:
ATTEST:
City Clerk
Amendment No. 1 to Agreement No.D99-
CITY OF COSTA MESA
By:
Mayor
City Attorney of Costa Mesa
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Date:
JAPPROVED AS TO FORM:
JATTEST:
City Clerk
Amendment No. I to Agreement No.D99-
CITY OF IRVINE
By:
Mayor
City Attorney of Irvine
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APPROVED AS TO FORM:
ATTEST:
City Clerk
Amendment No. 1 to Agreement No.D99 -12E
CITY OF LAGUNA HILLS
By:
Mayor
City Attorney of Laguna Hills
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Date:
IAPPROVED AS TO FORM:
IATTEST:
City Clerk
Amendment No. 1 to Agreement No.D99 -12E
CITY OF IAGUNA WOODS
By:
Mayor
City Attorney of Laguna Woods
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APPROVED AS TO FORM:
ATTEST:
City Clerk
Amendment No. 1 to Agreement No.D99-
CITY OF LAKE FOREST
By:
Mayor
City Attorney of Lake Forest
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IDate:
[APPROVED AS TO FORM:
]ATTEST:
City Clerk
Amendment No. 1 to Agreement No.D99 -12£
CITY OF NEWPORT BEACH
By:
Mayor
City Attorney of Newport Beach
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APPROVED AS TO FORM:
ATTEST:
City Clerk
Amendment No. 1 to Agreement No.D99-
CITY OF ORANGE
By:
Mayor
City Attorney of Orange
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IDate:
(APPROVED AS TO FORM:
(ATTEST:
City Clerk
Amendment No. 1 to Agreement No.D99-
CITY OF SANTA ANA
By:
Mayor
City Attorney of Santa Ana
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APPROVED AS TO FORM:
ATTEST:
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Amendment No. 1 to Agreement No.D99 -12f
CITY OF TUSTIN
By:
Mayor
City Attorney of Tustin
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Amendment No. 1 to Agreement No.D99 -129 1
THE IRVINE RANCH WATER DISTRICT !
'Date: By:
Name:
Title:
Date: By:
Name:
Title:
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IDate:
Date:
Amendment No. 1 to Agreement No.D99 -12E
THE IRVINE COMPANY
By:
Name:
Title:
By:
Name:
Title
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Date:
IDate;
Amendment No. 1 to Agreement No.D99-
CALIFORNIA DEPARTMENT OF TRANSPORTATION
By:
Name:
Title:
By:
Name:
Title:
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Date:
Date:
Amendment No. 1 to Agreement No.D99 -12£
TUSTIN LEGACY COMMUNITY PARTNERS, LLC
a Delaware limited liability company
M
M
Susan Lindquist
Director of Community Development
Name:
Title:
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IDate:
IDate:
Amendment No. 1 to Agreement No.D99 -12E
Lennar Homes of California,
a Developer Member of Heritage Fields Limited
Liability Company
By:
Name:
Title:
By:
Name:
Title:
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Amendment No. 1 to Agreement No.D99 -12E
GREAT PARK CORPORATION,
a California non - profit organization
Date: By:
Date:
M
Name:
Title:
Name:
Title:
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EXHIBIT A
COST -SHARE FOR PROGRAM PARTICIPANTS
TABLE A -1: AGREEMENT D99 -128 COST -SHARE FORMULA
LAND USE
COST SHARE
PROGRAM PARTICIPANTS
88.0%
Original Parties (Table A -2
5.0%
CalTrans
2.5%
Tustin Legacy Community Partners
2.5%
Lennar
2.0%
Great Park Corporation
888% is further cost - shared as shown in Table A -2
TABLE A -2: COST -SHARE FORMULA FOR ORIGINAL PARTIES (88% FROM TABLE A -1)
LAND USE
COST SHARE
PROGRAM PARTICIPANTS
Costa Mesa
Irvine
Laguna Hills
Laguna Woods
Lake Forest
Urban
75 %'
Newport Beach
Orange
Santa Ana
Tustin
County of Orange
O.C. Flood Control District
Open Space /Undefined Areas
12.5 %2
The Irvine Company
Open Space /Undefined Areas
J 12.5%2
Irvine Ranch Water District
' Includes all incorporated cites in the Newport Bay watershed and the County of Orange and Orange County Flood Control
District. The percentage breakdown for each is based on the existing NPDES funding formula which is based on a weighted
percentage of population and land area.
2 Includes all sources that do not fall in other categories such as sewage spills, atmospheric deposition, rising groundwater,
etc.
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Agreement No.D99-
AGREEMENT TO FUND NUTRIENT, FECAL COLIFORM AND TOXICS TOTAL MAXIMUM DAILY LOAD (TMDL)
STUDIES I.1 THE NEWPORT BAY WATERSHED
THIS AGREEMENT, for purposes of identification numbered D99 -126, is made and
.entered into this day of f 2003 , by and between the County of Orange
I("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 "), the City of Tustin ( "TUSTIN "), the Irvine Ranch
Water District ( "IRWD") and The Irvine Company ( "TIC'). The thirteen 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'.
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,
1996 and Resolution 99 -10 amending the Water Quality Control Plan for the Santa Ana
River Basin to incorporate a TMDI. 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 19, 2002, and the REGIONAL 30ARD is developing implementation plans for each of
the toxic pollutants; and,
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 PARTIES intend this AGREEMENT to provide for the performance of
studies, monitoring and developRent of programs and funding therefore for a period
through to June 30, 2008 after which it is recognized that additional agreements may
1
30
Agreement No.D99 -12f
1 be necessary for further monitoring, studies and load reduction implementation
2 projects over the period covered by the TMDLs; and,
3 WHEREAS, the PARTIES recognize that some expenditures required for compliance
4 with the TMDLs have been incurred prior to this agreement and that these costs are
incorporated in Exhibit C -1.
5
WHEREAS the PARTIES have reached agreement on a funding formula, which for the
6
COUNTY, DISTRICT and CITIES is based on the watershed land area and population applied
7 to the formula in the Amendment and Reinstatement of the National Pollutant Discharge
8 Elimination System Stormwater Implementation Agreement dated June 25, 2002, and which
9 for TIC and IRWD is based on a fixed twelve and one -half percent (12.5 %) contribution.
10 NOW, THEREFORE, in consideration of the foregoing, the PARTIES agree as follows:
11 Section 1. PURPOSE. This AGREEMENT is entered into for the purpose of funding
12 and performing studies, research, monitoring and the development of programs related
to the adopted TMDLs for nutrients, fecal coliform and toxics in San Diego Creek and
13
Newport Bay watersheds.
14
Section 2. TERM. The term of this AGREEMENT shall commence upon approval and
15
execution of this document by all signatories to this AGREEMENT and shall continue
16 until June 30, 2008, unless sooner terminated as provided in Section 8.
17 Section 3. FUNDING. Exhibit A, which is attached and by this reference is made
18 a part hereof, presents the cost share allocations for the PARTIES.
19 The urban allocation in Exhibit A shall remain at seventy five percent (75 %) for the
20 duration of the AGREEMENT, but the individual cost shares for the COUNTY, DISTRICT and
21 CITIES will be revised once every year pursuant to the formula provided in Exhibit B,
which is attached hereto and made a part hereof, based on changes in watershed land
22
area and population. The percentage share shall be calculated by the COUNTY Public
23
Facilities and Resources Department, Environmental Resources Section from population,
24 land area and watershed area data. These calculations shall be completed by January 1
25 of each year and shall be included in the annual budget proposal. The respective
26 shares of IRWD and TIC shall remain at twelve and one half percent (12.5 %) each for
the duration of this AGREEMENT.
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Agreement No.D99 -12E
Section 4. PROGRAM BUDGET AND COSTS. 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.
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
written responses from all of the PARTIES. The COUNTY and DISTRICT will constitute
one approving PARTY.
The first year tasks and expenditures for FY 02/03 are six hundred twenty -five
thousand and nine hundred nineteen dollars ($625,919) as shown in Exhibit C -1, which
is attached hereto and made a part hereof. The budget for the scope of work for FY
03/04 is six hundred ninety thousand and two hundred and twenty dollars ($690,220) as
shown in Exhibit C -2, which is attached hereto and made a part hereof. 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
calculated by the County Auditor - Controller which includes Public Facilities and
Resources Department overhead and County -wide cost allocation plan.
Section 5. PAYMENTS. Within 15 calendar days of the effective date of this
AGREEMENT, the COUNTY shall send the PARTIES an invoice for a deposit which
constitutes their share of the total first year costs identified in Exhibit C -3, whict
is attached hereto and made a part hereof. Each of the PARTIES shall pay the deposit
within 45 calendar days of their respective receipt of the invoice.
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, the COUNTY shall seek
approval of the excess cost fron. the PARTIES and shall invoice each PARTY for its
prorated share of the excess coEt 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.
3
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Agreement No.D99 -12E
1 If the fiscal year end accounting results in the sum of the deposits exceeding costs
2 (net of interest earnings), the excess deposits will carry forward to reduce the
3 billings for the following year.
After the initial billing for the program, the COUNTY shall invoice each PARTY
4
for its annual deposit at the beginning (July 1) of each fiscal year. Each PARTY
5
shall pay the deposit within 45 calendar days of the date of the invoice. Each
6
PARTY'S deposit shall be based on it's prorated share of the approved annual budget,
7 reduced by its prorated share of any surplus identified in the prior fiscal year end
8 accounting.
9 Interest earned on the PARTIES' deposits will not be paid to the PARTIES, but
10 will be credited against the PARTIES' share of the program costs.
11 Upon termination of the program, a final accounting shall be performed by the
12 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
13
deficit. Each PARTY shall pay the invoice within 45 calendar days of the date of the
14
invoice. If the sum of the deposits, including interest, exceeds the costs, the
15
COUNTY shall reimburse to each PARTY its prorated share of the excess, within 95
16 calendar days of the final accounting.
17 Section 6. AMENDMENT. This AGREEMENT may be amended in writing only with the
18 unanimous written approval of the parties.
19 Section 7. LIABILITY. It is mutually understood and agreed that, merely by the
20 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
21
the intent of the PARTIES that the rights and liabilities of each Party shall remain
22
the same, while this AGREEMENT is in force, as it was before this AGREEMENT was made,
23
except as otherwise specifically provided in this agreement.
24 Section 8. TERMINATION. Any PARTY wishing to terminate its participation in
25 this AGREEMENT shall so notify all other PARTIES in writing by March 1 of any year.
26 Such termination shall be effective the following June 30. The terminating PARTY
shall be responsible for financial obligations hereunder to the extent incurred in
4
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Agreement No.D99 -128
1 accordance with this agreement by the PARTY prior to the effective date of
2 termination. The balance of the PARTIES may continue in the performance of the terms
3 and conditions of this AGREEMENT on the basis of a revised allocation of cost based on
4 the funding formula in Exhibit A, provided however, that the pro rata shares for TIC
and IRWD shall never exceed twelve and one -half percent (12.5 %).
5
Section 9. AVAILABILITY OF FUNDS. The obligation of each PARTY is Subject to
6
the availability of funds appropriated for this purpose, and nothing herein shall be
7
construed as obligating the PART I::S to expend or as involving the PARTIES in any
$ contract or other obligation for the future payment of money in excess of
9 appropriations authorized by law.
10 Section 10. NO THIRD PARTY BENEFICIARIES. Nothing expressed or mentioned in this
11 AGREEMENT is intended or shall be construed to give any person, other than the PARTIES
12 hereto, and any permitted successors, any legal or equitable right, remedy or claim
13 under or in respect of this AGREEMENT or any provisions herein contained. This
14 AGREEMENT and any conditions and provisions hereof is intended to be and is for the
15 sole and exclusive benefit of the PARTIES hereto and for the benefit of no other
16 person, agency or entity.
17 Section 11. REFERENCE; TO CALENDAR DAYS. Any reference to the word "day" or
18 "days' herein shall mean calendar day or calendar days, respectively, unless otherwise
19 expressly provided.
20 Section 12. ATTORNEYS FEES. In any action or proceeding brought to enforce
21 or interpret any provision of this AGREEMENT, or where any provision hereof is
22 asserted as a defense, each PARTY shall bear its own attorneys' fees and costs.
23 Section 13. ENTIRE AGREEMENT. This AGREEMENT is intended by the PARTIES as
24 a final expression of their agreement and intended to be a complete and exclusive
25 statement of the agreement and understanding of the PARTIES hereto in respect of the
26 subject matter contained herein. There are no restrictions, promises, warranties or
undertakings, other than those _ °et forth or referred to herein. This AGREEMENT
5
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Agreement No.D99-12E
supersedes all prior agreements and understandings between the PARTIES with respect to
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 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
Director of Public Works
City of Irvine
P.O. Box 19578
Irvine, CA 92623 -9578
Director of Public Works
City of Laguna Hills
25201 Pasec de Alicia, #150
Laguna Hills, CA 92653
35
Agreement No.D99 -12E
1
Director of Public Works
City of Laguna Woods
2
24310 Moulton Pkwy, Ste K
P.O. Box 2220
3
Laguna Hills, CA 92653
Director of Public Works
4
City of Lake Forest
23161 Lake Center Dr., 4100
5
Lake Forest, CA 92630
6
Director of Public works
City of Newport Beach
7
3300 Newport Blvd.
Newport Beach, CA 92658
8
Director of Public Wo-ks
City of Orange
9
300 E. Chapman Ave
P.O. Box 449
10
Orange, CA 92866
11
Director of Public Works
City of Santa Ana
101 W. 4`" St.
12
Santa Ana, CA 92701
13
Director of Public Works
City of Tustin
14
300 Centennial Play
Tustin, CA 92680
15
Director, PFRD
County of Orange
16
P.O. Box 4048
Santa Ana, CA 92702 -4048
17
Director, Water Quality
18
Irvine Ranch Water District
3512 Michelson Dr
19
Irvine, CA 92712
Vice President of Environmental Affairs
20
The Irvine Company
550 Newport Center
21
Newport Beach, CA 92558 -8904
22
Section 17. EXECUTIO'V OF AGREEMENT. This
AGREEMENT may be executed in
23
counterpart and the signed counterparts shall constitute
a single instrument.
24
Section 18. GOVERNING LAW AND VENUE. This
AGREEMENT has been negotiated
25
and executed in the State of California and shall be
governed by and construed under
26
the laws of the State of California. In the event of
any legal action to enforce or
7
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Agreement No.D99 -128
1 interpret this AGREEMENT, the sole and exclusive venue shall be a court of competent
2 jurisdiction located in Orange County, California, and the PARTIES hereto agree to and
3 do hereby submit to the jurisdiction of such court, notwithstanding Code of Civil
4 Procedure section 399. Furthermore, the PARTIES have specifically agreed, as part of
5 the consideration given and received for entering into this AGREEMENT, to waive any
6 and all rights to request that an action be transferred for trial to another county
7 under Code of Civil Procedure Section 399 or any other provision of law.
8 IN WITNESS WHEREOF, the PARTIES hereto have executed this AGREEMENT the day and
9 year first above written:
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Agreement No.D99 -12E
1
COUNTY OF ORANGE
a political subdivision of the State of
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California
Date:
By:
3
Chairman of the
Board of Supervisors
4
ORANGE COUNTY FLOOD
CONTROL DISTRICT
a body corporate and politic
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By:
Chairman of the
Board of Supervisors
7
APPROVED AS TO FORM:
COUNTY COUNSEL
8
By: _
9
Deputy
10
Date:
11
SIGNED AND CERTIFIED THAT A COPY OF
THIS AGREEMENT HAS BEEN DELIVERED TO
12
THE CHAIRMAN OF THE BOARD
13
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Hy:
DARLENE J. BLOOM
15
Clerk of the Board of Supervisors of
Orange County, California
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Date:
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CITY OF COSTA MESA
Date:
ATTEST:
,City Clerk
By:
Mayor
2003
APPROVED AS TO FORM:
City Attorney of Costa Mesa
10
Agreement No.D99 -124
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CITY OF IRVINE
Date:
ATTEST:
City Clerk
By:
Mayor
2003
APPROVED AS TO FORM:
City Attorney of Irvine
11
Agreement No.D99 -12E
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CITY OF LAGUNA HILLS
Date: 2003
ATTEST:
City Clerk
Agreement No.D99-
By:
Mayor
APPROVED AS TO FORM:
City Attorney of Laguna Hills
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(CITY OF LAGUNA WOODS
Date:
ATTEST:
City Clerk
Agreement No.D99 -12f
By:
Mayor
2003
APPROVED AS TO FORM:
City Attorney of Laguna Woods
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Agreement No.D99-
CITY OF LAKE FOREST
By:
Mayor
Date: 2003
APPROVED AS TO FORM:
ATTEST:
(City Clerk City Attorney of Lake Forest
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ICITY OF NEWPORT BEACH
Date:
ATTEST:
City Clerk
Agreement No.D99 -1281 i
By:
Mayor
2003
APPROVED AS TO FORM:
City Attorney of Newport Beach
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CITY OF ORANGE
Date:
ATTEST:
City Clerk
By:
Mayor
2003
APPROVED AS TO FORM:
City Attorney of Orange
ir3
Agreement No.D99-
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CITY OF SANTA ANA
Date:
ATTEST:
City Clerk
By:
Mayor
2003
APPROVED AS TO FORM:
City Attorney of Santa Ana
17
Agreement No.D99 -12E
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CITY OF TUSTIN
Date:
ATTEST:
(City Clerk
Bv:
Mayor
2003
APPROVED AS TO FORM:
City Attorney of Tustin
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Agreement No.D99 -128
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THE IRVINE RANCH WATER DISTRICT
IDate:
2003
By:
Chairman
av:
Attorney for IRWD
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Agreement No.D99-
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THE IRVINE COMPANY
Date: , 2003 By:
MONICA FLORIAN
ITS: Group Vice President
Environmental Affairs
By:
Pat Brogues
ITS: General Counsel
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Agreement No.D99 -126
I
EXHIBIT A
COST SHARE ALLOCATIONS
FOR PROGRAM PARTICIPANTS
LAND USE .
COST
PROGRAM PARTICIPANTS
SHARE
Costa Mesa
Irvine
Laguna Hills
Laguna Woods
Lake Forest
Urban
75%
Newport Beach
Orange
Santa Ana
Tustin
County of Orange
O.C. Flood Control District
Open Space /Undefined Areas
12.5%
The Irvine Company
Open Space /Undefined Areas
12.5%
Irvine Ranch Water
District
50
EXHIBIT B
Cost Share for Urban Component
Based on NPDES Funding Formula
JURISDICTION
TOTAL
SQUARE
MILES:
SQ. MILES
WITHIN
WATERSHED
PERCENTAGE
OF CITY LAND
AREA IIJ '
z
WATERSHED
TOTAL
3>
POPULATION '.
?-
-_
ESTIMATED
POPULATION
IN
a
WATE RSHED
WEIGHTED
AVERAGE I
SHARE OF
COST( %)s,:':
Costa Mesa
15.56
7.58
48.71
110,700
53,920
6.19
Irvine
46.15
45.07
97.66
157,500
153,821
25.13
Laguna Hills 1
6.63
1.17
17.66
33,800
5,968
0.79
Laguna Woods
3.05
1.91
62.62
16,800
10,521
1.34
Lake Forest
16.80
11.56
68.83
76,600
52,724
7.37
Newport Beach
27.74
16.61
59.88
72,500
43,411
8.33
Orange
23.33
1.6
6.86
132,900
9,115
1.15
Santa Ana
27.35
16.34
59.75
343,700
205,348
19.57
Tustin
11.09
11.09
100.00
69,100
69,100
8.37
County of
Orange
86.85
28.19
32.46
122,534
39,774
11.77
O.C. Flood
Control District6
- --
- --
- --
- --
- --
10.00
TOTAL
264.54
141.12
- --
1,136,134.00
643,702
100.00 .
' Source: NPDES Stormwater Permit Implementation Agreement D02 -048. Indudes Land Area Deductions from agreement
exhibit A -1
l Percentage of City Land Area in Watershed = Square miles within Watershedrrotal Square Miles' 100
'Taken from NPDES budget, which is derived from California State Dept. of Finance data
°Estimated Population in Watershed = Total Population • Percentage of City Land Area in Watershed /100
5Weighted Average Share of Cost = ((Square Miles within Watershed/Total Square Miles of Watershed)'0.5) +((Estimated
Population in Watershed/Total Estimated Population in Watershed)•0.5) x 90
6Orange County Flood Control District assumes a Flat 10 percent of the total
!�sI
EXHIBIT C -1
2002 -2003 Budget for Newport Bay /San Diego Creek Watershed
Nutrient, Fecal Coliform and Toxics TMDL Programs
MDL
TASK: DESCRIPTION
BUDGET
utrient
Prior Nutrient Monitoring and Reporting. Coordination with RWQCB
Staff TMDL Im lementation Plan Section 2.c
$ 197,809
utrient
r
Nutrient Monitoring and Data collection (TMDL Implementation Plan
Section 2.c.1 Regional Nutrient Monitoring Program)
$ 120,000
l Coliform
Shellfish Harvesting Study 1s': Year Cost (TMDL Implementation Plan
Section 3.a.ii.a)
$ 250,000
Fecal Coliform
Fecal Coliform TMDL 2002 -2003 Data Analysis (TMDL Implementation
Plan Section 3.a.ii.a )
$ 2,200
Toxics
Selenium Source Study
$ 9,900
All
Program Compliance and Annual Reporting
$ 46,010
All
2002 -2003 Total
$ 625,919
5a
EXHIBIT C -2
2003 -2004 Budget for Newport Bay /San Diego Creek Watershed
Nutrient, Fecal Coliform and Toxics TMDL Programs
TMDL
" TASK DESCRIPTION 'r; :
BUDGET° .
Nutrient
Algae Survey of San Diego Creek System (TMDL Implementation
Plan Section 2.c.1 Regional Nutrient Monitoring Program)
$ 50,000
Nutrient
Aerial Mapping of Algae Distribution (TMDL Implementation Plan
Section 2.c.1 Regional Nutrient Monitoring Program)
$ 5,000
Nutrient
Nutrient Monitoring and Data Collection (TMDL Implementation
Plan Section 2.c.1 Regional Nutrient Monitoring Program)
$ 120,000
Nutrient
Nutrient BMP Evaluation Proposition 13 Grant matching funds
TMDL Implementation Plan Section 2.c.2
$ 100,000
Toxics
I Selenium Source Stud
$ 43,400
Fecal
Coliform
Shellfish Harvesting Study 2nd Year Cost (TMDL Implementation
Plan Section 3.a.ii.a )
$ 203,000
Fecal
COliform
Urban and Natural Source Identification and Characterization
TMDL Implementation Plan Section 3.a.ii.d
$ 75,000
Fecal
Coliform
Fecal Coliform TMDL 2003 -2004 Data Analysis (TMDL
Implementation Plan Section 3.a.ii.a )
$ 2,200
All
Program Compliance and Annual Reporting
92 020
2003 -2004 Total
$ 690,620
53
EXHIBIT C -3
Expenditures for Newport Bay /San Diego Creek Watershed
Nutrient, Fecal Coliform and Toxicx TMDL Programs
Entity.
Budget Year
2002 -2003
2003 -2004
Total Urban Component'
$469,439
$517,965
`Costa Mesa r
$29,042;
04 .
_ , ,,
Wlne A r t r
8117947�R
,i 8130,..... 39
„Laguna lulls 7. r,
„
$3,7.10: ` 0 "11
...
ss=� M-$4 093r � � n
Laguna 11Voods
$6,312 �aa°€,3ra
86;9fi4g a
Lake Fo`res 4 ; _ : s ,
$34 607a�ni38,184
ah
NewporE B,eactr, ',
$39ji4
t3 1!53
, 'AG
I
Qrange
-0249
$5386 �IfSR
- .
5i943i '
E
Santa Ana
$91,80; ��
4 $ [01;345
4 ITT-
839;2
s 7
41 3;33$
County of orange
25*
`� $601963 ' ay
`'t's a
O C, Flood Control!Dtstrlct
$46,944# 4af�r d
$51;797
.s
The Irvine Co. (Open Space)
$78,240
$86,328
IRWD Undefined Sources
$78,240
$86,328
TOTAL $625,919 $690,620
' Funding formula based on weighted percentage of population and land area (see Exhibit
B)
s�f