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HomeMy WebLinkAbout04 - Total Maximum Daily Loads in Newport BayCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No.4 March 24, 2009 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 #2 to a Cooperative Agreement for the Administration of Total Maximum Daily Loads (TMDLs) in Newport Bay ISSUE: Should the City of Newport Beach agree to amend an existing Cooperative Agreement for water quality in the Newport Bay Watershed to extend its term? RECOMMENDATION: Authorize the Mayor to sign and execute Amendment #2 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 • Nutrients • Metals • Fecal Coliform Bacteria • 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 Discharge Elimination System (NPDES) Municipal Separate Storm Sewer System (MS4) Permit. Amendment #2 to Cooperative Agreement for TMDLs March 24, 2009 Page 2 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); • California Department of Transportation (Caltrans); • Tustin Legacy Community Partners; • Lennar Homes of California; • The Great Park Corporation; • 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 amended in 2006 and which went to your Council on June 24, 2003 and June 26, 2006, respectively) -- to implement and administer the obligations of the TMDLs through at least 2010. 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. Additional Background: Amendment No. 1 was executed on July 5, 2006 and added four new cost share parties: • The California Department of Transportation (Caltrans) • Tustin Legacy Community Partners • Lennar, and • The Great Park Corporation. As a result, the current cost -share formula is on the next page (Table #1). The purpose of Amendment No. 2 is to extend the term of the agreement for two years (through June 30, 2010), and to recognize prior payments for services made directly by Caltrans ($75,000) and IRWD ($6,932.88) for work plan development and bay algae studies respectively, as credits in the 2008 -2009 program budget. No other changes to the agreement are proposed at this time. Amendment #2 to Cooperative Agreement for TMDLs March 24, 2009 Page 3 Table #1 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: The City's TMDL obligations for FY 2008 -09 are $141,269 and were included in the approved FY 2008 -09 budget. Submitted by: !::. Dave Ki Assistant City Manager Attachments: Amendment No. 2 to Cooperative Agreement Amendment No. 1 to Cooperative Agreement Cooperative Agreement J ...• mWAVAmr.11sy. Total Cost Share Program Participants 2008 -09 Budget 88.00% Costa Mesa 75% 4.43% $ 93,332 Irvine 24.77% $ 521,958 Laguna Hills 0.55% $ 11,660 Laguna Woods 0.92% $ 19,419 Lake Forest 5.26% $ 110,926 Newport Beach 6.70% $ 141,269 Orange 0.92% $ 19,414 Santa Ana 14.12% $ 297,510 Tustin 5.97% $ 125,840 County of Orange 3.84% $ 80,894 OC Flood Control District 7.50% $ 158,025 The Irvine Company 12.50% $ 263,414 IRWD 12.50% $ 255,576 5% Caltrans $ 40,722 2% The Great Park Corporation $ 47,867 2.50% Lennar Homes $ 59,834 2.50% Tustin Legacy Partners $ 59834 Total Budget for FY 2008 -09 $ 2,307,494 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: The City's TMDL obligations for FY 2008 -09 are $141,269 and were included in the approved FY 2008 -09 budget. Submitted by: !::. Dave Ki Assistant City Manager Attachments: Amendment No. 2 to Cooperative Agreement Amendment No. 1 to Cooperative Agreement Cooperative Agreement J THIS PAGE LEFT BLANK INTENTIONALLY q 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Amendment No. 2 to Agreement NO.D99 -121 AMENDMENT NO. 2 AGREEMENT TO FUND NUTRIENT, FECAL COLIFORM AND TOXICS TOTAL MAXIMUM DAILY LOAD (TMDL) STUDIES IN THE NEWPORT BAY WATERSHED THIS AMENDMENT, for purposes of identification numbered Amendment No. 2 to Agreement No. D99 -126, is made and entered into this day of 2009, 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 ( "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 Tustir ( "TUSTIN "), the Irvine Ranch Water District ( "IRWD "), The Irvine Company ( "TIC "), the California Department of Transportation ( "CALTRANS "), Tustin Legacy Community Partners ( "TLCP "), Lennar Homes of California, Inc.( "LENNAR "), and Orange County Great Park Corporation ( "GPC "). The seventeen entities are hereinafter sometimes jointly referred to as the "PARTIES" and individually as "PARTY ". The cities are hereinafter sometimes jointly referred to as the "CITIES". Thirteen entities (all entities except for CALTRANS, TLCP, LENNAR, and GPC) are sometimes jointly referred to as the "ORIGINAL PARTIES." WITNESSETH WHEREAS, the ORIGINAL PARTIES entered into Agreement No. D99 -128 on September 18, 2003, referred to hereinafter as "AGREEMENT ", to provide funding for the Nutrient, Fecal Coliform and Toxics Total Maximum Daily Load (TMDL) studies in the Newport Bay Watershed; and, WHEREAS, the PARTIES approved Amendment 1 to Agreement No. D99 -128 on Ju17 5, 2006, which amended Section 3 (Funding), Section 4 (Program Budgets and Costs), Section 5 (Payments), Section 10 (No Third Party Beneficiaries), Section 16 (Notices), Exhibit A, and Exhibit C of the AGREEMENT in their entirety and added CALTRANS, TLCP, LENNAR, and GPC as AGREEMENT participants; and, WHEREAS, according to Section 6 of the AGREEMENT, the AGREEMENT may be amended in writing only with the unanimous written approval of the PARTIES; and, 1 1 Amendment No. 2 to Agreement No.D99 -128 1 WHEREAS, the PARTIES desire to extend the term of the AGREEMENT for two 2 (2) years to be consistent with the end of the current phase of the Nitrogen and 3 Selenium Management Program and to recognize prior payments for services made directly by CALTRANS and IRWD, for work plan development and Bay algae studies respectively, as 4 credits in the 2008 -09 program budget. 5 NOW, THEREFORE, in consideration of the foregoing, it is agreed by and 6 between the PARTIES hereto that the AGREEMENT shall be amended as follows: 7 Section 1. Each and all of the provisions of the AGREEMENT remains in 8 full force and effect, except that all references to Resources and Development 9 Management Department or RDMD shall be amended to OC Public Works and Section 2 and 10 Section 9 are amended in their entirety, as follows: 11 Section 2. Section 2 of the AGREEMENT, entitled "TERM ", shall be amended to read in full as follows: The term of this AGREEMENT is extended for a two -year 12 period, commencing on July 1, 2008 and continuing to and including June 30, 2010, 13 unless sooner terminated as provided in Section 8. 14 Section 9. Section 4 of the AGREEMENT, entitled "PROGRAM BUDGET AND COSTS',' 15 shall be amended to read in full as follows: The COUNTY shall submit a scope of work 16 and a budget for the following fiscal year to each of the PARTIES by February 15 of 17 each year. The budget shall contain an explanation of any recommended program 18 changes, an estimate of all planned expenditures and an estimate of the payment 19 required from each PARTY for the following fiscal year. For the State of California 20 budgeting requirements, CALTRANS' contribution shall not exceed $150,000 or five percent (5.0 %) of the total budget costs, whichever is less, for each fiscal year 21 during the term of the AGREEMENT. If CALTRANS contribution would be greater than 22 $150,000 for a given fiscal year, the amount over $150,000 ( "EXCESS AMOUNT ") shall be 23 cost - shared as described in Section 2 of AMENDMENT 1, with the exception that for such 24 EXCESS AMOUNT, the ORIGINAL COST ALLOCATION shall be ninety -three percent (930) and 25 CALTRANS contribution shall be zero percent (0 %). 26 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 2 lD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Amendment No. 2 to Agreement No.D99 -12 written responses from all of the PARTIES. The COUNTY and DISTRICT will constitute one approving PARTY. The tasks and expenditures for each fiscal year will be presented and calculated as shown in Exhibit C, which is attached hereto and made a part hereof. All tasks and expenditures will be updated each fiscal year as part of the budget approval process. 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 approved scope of work. Recoverable costs will also include an overhead charge calculated by the County Auditor - Controller which includes OC Public Works overhead and County -wide cost allocation plan. CALTRANS and IRWD will receive credits of $75,000 and $6,932.86 respectively in the fiscal year 2008 -09 program budget for prior payments for services related to the AGREEMENT. IN WITNESS WHEREOF, the PARTIES hereto have executed this AGREEMENT the day and year first above written: 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 I Date: APPROVED AS TO FORM: COUNTY COUNSEL By: Punam P. Prahalad, Deputy I Date: Amendment No. 2 to Agreement No.D99 -121 COUNTY OF ORANGE, a political subdivision of the State of California By: Bryan Speegle, Director, OC Public Works 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 IDate: (APPROVED AS TO FORM: (ATTEST: City Clerk Amendment No. 2 to Agreement No.D99 -12f CITY OF COSTA MESA By: Mayor City Attorney of Costa Mesa 5 (i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Date: APPROVED AS TO FORM: ATTEST: City Clerk Amendment No. 2 to Agreement No.D99 -12£ CITY OF IRVINE By: Mayor City Attorney of Irvine 0 (v 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Date: APPROVED AS TO FORM: FATTEST: City Clerk Amendment No. 2 to Agreement No.D99 -12E CITY OF LAGUNA HILLS By: Mayor City Attorney of Laguna Hills 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Date: APPROVED AS TO FORM: ]ATTEST: City Clerk Amendment No. 2 to Agreement No.D99- CITY OF LAGUNA WOODS By: Mayor City Attorney of Laguna Woods j 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 I Date: JAPPROVED AS TO FORM: (ATTEST: City Clerk Amendment No. 2 to Agreement No. CITY OF LAKE FOREST By: Mayor City Attorney of Lake Forest 0 1 2 3 4' 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Date: APPROVED AS TO FORM: ATTEST: City Clerk Amendment No. 2 to Agreement No.D99 -126 CITY OF NEWPORT BEACH By: Mayor City Attorney of Newport Beach 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Date: (APPROVED AS TO FORM: ATTEST: City Clerk Amendment No. 2 to Agreement No, CITY OF ORANGE By: Mayor City Attorney of Orange 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Date: APPROVED AS TO FORM: ATTEST: City Clerk Amendment No. 2 to Agreement No.D99 -12E CITY OF SANTA ANA By: Mayor City Attorney of Santa Ana 12 r: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Amendment No. 2 to Agreement No.D99 -12£ CITY OF TUSTIN Date: By: Mayor JAPPROVED AS TO FORM: ATTEST: City Clerk City Attorney of Tustin 13 1!7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Date: Date: Amendment No. 2 to Agreement No. THE IRVINE RANCH WATER DISTRICT By: M Name: Title: Name: Title: 14 1 2 3 4 5 6 7' 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Amendment No. 2 to Agreement No.099 -12E THE IRVINE COMPANY Date: By: I Date: Name: Title: Sy: Name Title: 15 11 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Amendment No. 2 to Agreement No.D99 -12£ CALIFORNIA DEPARTMENT OF TRANSPORTATION IDate: By: IDate: By: Name: Title: Name: Title: 16 1 2'I 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Amendment No. 2 to Agreement No.D99 -12£ TUSTIN LEGACY COMMUNITY PARTNERS, LLC a Delaware limited liability company Date: By: Date: By: Ken Nishikawa VP Shea Properties, Director of Engineering Tustin Legacy Community Partners, LLC Name:_ Title: 17 �0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Date: Date: Amendment No. 2 to Agreement No.D99 -12£ Lennar Homes of California, a Developer Member of Heritage Fields Limited Liability Company By: Name: Title: By: Name•_ Title 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Amendment No. 2 to Agreement No.D99- GREAT PARK CORPORATION, a California non - profit organization Date: By: Date: By: Name: Title: Name: Title: 19 1 2 3 4 5, 6 7' 8 9 10 11 12 13 14 15 16 17 18. 19 20 21 22 23 24 25 26 Amendment �0. 1 to Agreement No.D99 -128 AMENDMENT NO. 1 AGREEMENT TO FUND NUTRIENT, FECAL COLIFORM AND TOXICS TOTAL MAXIMUM DAILY LOAD (TMDL.) STUDIES IN THE NEWPORT BAY WATERSHED THIS AMENDMENT, for purposes of identification numbered Amendment No. 1 to Agreement No. D99 -128, is made and entered into this >` h,- day of .QAL4_, 2006 ("AMENDMENT "), 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 ( "LAGUNA HILLS "), the City of Laguna Woods ( "LAGUNA WOODS "), the City of Lake Forest ( "LAKE FOREST "), the City of Newport Beach ( "NEWPORT BEACH"), the City of Orange ( "ORANGE "), the City of Santa Ana ( "SANTA ANA "), the City of Tustin ( "TUSTIN "), the Irvine Ranch Water District ( "IRWD "), The Irvine Company ( "TIC "), the California Department of Transportation ( "CALTRANS "), Tustin Legacy Community Partners ( "TLCP "), Lennar Homes of California, Inc.( "LENNAR "), ano - Orange County Great Park Corporation ( "GPC "). The seventeen entities are hereinafter sometimes jointly referred to as the "PARTIES" and individually as "PARTY". The cities are hereinafter sometimes jointly referred to as.the "CITIES ". Thirteen entities (all entities except for CALTRANS,. TLCP, LENNAR, and GPC) are sometimes jointly referred to [as the °ORIGINAL PARTIES." WITNESSETH WHEREAS, the ORIGINAL PARTIES entered into Agreement No. D99 -128 on (September 18, 2003, referred to hereinafter as "AGREEMENT ", to provide funding for the lNutr.ient, Fecal Coliform and Toxics Total Maximum Daily Load (TMDL) studies in the Newport Bay Watershed; and, WHEREAS, according to Section 6 of the AGREEMENT, the AGREEMENT may be lamended in writing only with the unanimous written approval of the ORIGINAL PARTIES; I and, WHEREAS; the ORIGINAL PARTIES agree to amend the AGREEMENT to add- CALTRANS, TLCP, LENNAR and GPC as PARTIES to the AGREEMENT; and, WHEREAS, the PARTIES have reached agreement on a new funding formula, which states that (1) CALTRANS will contribute a fixed five percent (5.0 %) of the 1 Amendment No. 1 to Agreement No.D99 -128 1 11total budget cost, (2) TLCP will contribute a fixed two and one half percent (2.5 %) of 2 Ilthe 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; 5 WHEREAS, the ORIGINAL PARTIES will further cost -share their 88% 611 based upon the original cost -share formula in the AGREEMENT, such that (1) the COUNTY, DISTRICT and CITIES contributions are based on the watershed land area and population 8 11applied 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 13 between the PARTIES hereto that the AGREEMENT shall be amended as follows: Section 1. Each and all of the provisions of the AGREEMENT remains in 14 full force and effect, except that Section 3, Section 4, Section 5, Section 10 and 15 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, 21 TLCP shall provide two and one half percent (2.5 %) of the total budget costs, LENNAR 22 shall provide two and one half percent (2.5 %) of the total budget costs, and Orange 23 County Great Park Corporation shall provide two percent (2.0 %) of the total budget 24 costs. As shown in Exhibit A STable A -2), the ORIGINAL PARTIES' eighty eight percent 25 (88 %) 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 2 Amendm n� No. 1 to Agreement No.D99 -12'., 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 4 revised once every year pursuant to the formula provided in Exhibit B to the AGREEMENT, which is attached to the AGREEMENT and made a part hereof, based on changes 5 in watershed land area and population. The individual cost shares for the COUNTY, 6 DISTRICT and CITIES shall be calculated by the COUNTY Resources and Development 7 Management Department, Environmental Resources Section from population, land area and 6 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 . 13 changes, an estimate of all planned expenditures and an estimate of the payment 14 required from each PARTY for the following fiscal year. For the State of California 15 budgeting requirements, CALTRANS' contribution shall not exceed $150,000 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 $150,000 ( "EXCESS AMOUNT ") shall be 19 cost - shared as described in Section 2 of this Amendment, with the exception that for 20 such EXCESS AMOUNT, the ORIGINAL COST ALLOCATION shall be ninety -three percent (93%) and CALTRANS contribution shall be zero percent (0$). 21 The PARTIES shall be permitted to review and approve the program scope of work 22 and budget for the forthcoming year. Criteria for approval shall be affirmative 23 written responses from all of the 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 26 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. 3 ii \ \/ Amendment No. 1 to Agreement No. ➢99- 1 Therefore, Exhibit C as attached is a form to be completed every year. The COUNTY 2 shall be entitled to charge to the program all costs for direct labor, materials, 3 equipment and outside contract services for costs associated with carrying out the 4 approved scope of work. Recoverable costs will also include an overhead charge calculated by the County Auditor - Controller which includes Resources and Development 5 Management Department overhead and County -wide cost allocation plan. 6 Section 4. Section 5 of the AGREEMENT, entitled "PAYMENTS" shall be 7 amended to read in full as follows: Within 15 calendar days of the effective date of 8 this AMENDMENT, the COUNTY shall send the PARTIES an invoice for a deposit which 9 constitutes their share of the total first year costs identified in Exhibit C (Table 10 C -1). Each of the PARTIES shall pay the deposit within 45 calendar days of their 11 respective receipt of the invoice. 12 The COUNTY shall notify each of the PARTIES if it appears that costs may exceed 13 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 14 the fiscal year end accounting results in costs (net of interest earnings) exceeding 15 the sum of the deposits, and the COUNTY has notified the PARTIES of p potential cost 16 overruns, the COUNTY shall seek approval of the excess cost from the PARTIES in the 17 form of a revised budget and, upon approval, shall invoice each PARTY for its prorated) 18 share of the excess cost up to the amount of the revised approved budget. Each PARTY 19 shall pay the billing within 45 calendar days of the date of the invoice. If the 20 fiscal year end accounting results in the sum of the deposits exceeding costs (net of 21 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 22 for each PARTY will take into consideration any outside funding provided for programs 23 11in the approved budget from entities not party to this AMENDMENT in the manner 24 presented in Exhibit C (Table C -2). 5 After the initial billing for the program, the COUNTY shall invoice each PARTY 25 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 4 Amendmen-t No. 1 to Agreement No.D99 -128 1 IIPARTY'S deposit shall be based on its prorated share of the approved annual budget, 2 Ilreduced 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 4 .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 -. 5 will be credited against the PARTIES' share of the program costs. 6 Upon termination of the program, a final accounting shall be performed by the 7 COUNTY. If costs remaining after the deduction of interest costs exceed the sum of 8 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 costs, the 11 COUNTY shall reimburse to each PARTY its prorated share of the excess, within 45 12 calendar days of the final accounting. 13 14 Section 5. Section 10 of the AGREEMENT, entitled "NO THIRD PARTY BENEFICIARIES ", is amended to read in full as follows: Nothing expressed or mentioned in this AGREEMENT is intended or shall be construed to give any person, other than the 15 1i 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 18 or claim under or in respect of this 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„ 21 agency or entity. 22 Section 6. Section 16 of the AGREEMENT, entitled "NOTICES ", shall be 23 amended to read in full as follow: All notices required or desired to be given under 24 this AGREEMENT as amended shall be in writing and (a) delivered personally, or (b) 25 sent by certified mail, return receipt requested or (c) sent by telefacsimile 26 communication followed by a mailed copy, to the addresses specified below, provided 5 Amendmeft No. 1 to Agreement No.D99 -128 1 each PARTY may change the address for notices by giving the other PARTIES at least ten 2 (10) days written notice of the new address. Notices shall be deemed received when 3 actually received in the office of the addressee or when delivery is refused, as shown 4 on the receipt of the U.S. Postal service, or other person making the delivery, except 5 that notices sent by telefacsimile communication shall be deemed received on the first 6 business day following transmission. 7 Director of Public Services City of Costa Mesa 8 P.O. Box 1200 Costa Mesa, CA 92628 -1200 9 Facsimile: (714) 754 -5028 15 Director of Community Development City of Laguna Woods 16 24264 E1 Toro Road Laguna Woods CA 92637 17 Facsimile: (949) 639 -0591 18 19 20 21 22 23 24 25 26 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. 4` ".St. C Director of Public Works 10 City of Irvine P.O. Box 19578 11 Irvine, CA 92623 -9578 Facsimile: (949) 724 -6440 12 Director of Public Services 13 City of Laguna Hills 24035 E1 Toro Road Laguna Hills, CA 92653 14 Facsimile: (949) 707 -2633 15 Director of Community Development City of Laguna Woods 16 24264 E1 Toro Road Laguna Woods CA 92637 17 Facsimile: (949) 639 -0591 18 19 20 21 22 23 24 25 26 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. 4` ".St. C Amendmen �No. 1 to Agreement No.D99 -12( 1 Santa Ana, CA 92701 Facsimile: (714) 647 -5635 2 Director of Public Works 3 City of Tustin 300 Centennial Way Tustin, CA 92780 4 Facsimile: (714) 734 -8991 5 Director, RDMD County of orange 6 300 N. Flower Street Santa Ana, CA 92702 -4048 7 Facsimile: (714) 834 -2395 Director, Water Quality 6 Irvine Ranch Water District 3512 Michelson Dr 9 Irvine, CA 92712 Facsimile: (949) 453 -1228 10 Vice President of Environmental Affairs 11 The Irvine Company 550 Newport Center Newport Beach, CA 92658 -8904 12 Facsimile: (949) 720 -2448 13 Office Chief, Environmental Planning California Department of Transportation 14 3337 Michelson Dr. Ste 380 Irvine, CA 92612 -8894 15 Facsimile: (949) 724 -2519 David B. Placek 16 Tustin Legacy Community Partners Senior Project Manager 17 250 Commerce, Suite 100 Irvine, CA 92602 18 Facsimile: (949) 453 -8994 19 Lennar Homes of California Jim Werkmeister 20 7030 Trabuco Road, Building 83 Irvine, California 92618 Facsimile: (949) 551 -1186 21 Glen Worthington, Manager of Planning 22 Orange County Great Park Corporation P.O. Box 19575 23 Irvine, CA 92623 -9575 Facsimile: (949) 724 -7407 24 IN WITNESS WHEREOF, the PARTIES hereto have executed this AMENDMENT the day and 25 year first above written: _ 26 7 1 2 3 4 5 6 7 8 9i 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 11 Date: 6 ^ 27 - 0& APPROVED AS TO FORM: COti IBy: Dat SIGNED AND CERTIFIED THAT A COPY OF THIS AGREEMENT HAS BEEN DELIVERED TO THE CHAIRMAN OF THE BOARD Amendment No. 1 to Agreement No. COUNTY OF ORANGE, a political subdivision of the State of California By: _ 999M Chairman pervisors ORANGE COUNTY FLOOD CONTROL DISTRICT a body corporate and d pooll�i /t,/,iic By: W l..da7'1l�C.YY . Chairman of theboatA of 6upervisors O i,1 M Y. ,.. ,V OdM Clerk of the Board of Supervisors of Orange County, California Date: L — a7 ^ Q(p 0 3I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 IDate: '7_5 -0Y APPROVED AS TO FORM: ATTEST: 'v_ Amendment No. 1 to Agreement No.D99 -12 CITY OF NEWPORT BEACH By: c:)- uW Mayor Clerk yeCity Attorney of Newport Beach 14 3d Agreement No. D99-12 1 AGREEMENT TO FUND NUTRIENT, FECAL COLIFORM AND TOXICS TOTAL MAXIMUM DAILY LOAD (TMDL) STUDIES IN THE NEWPORT BAY WATERSHED 2 3 THIS AGREEMENT, for purposes of identification numbered D99-1281,is made and 4 entered into this 18th day of September, 2003, by and between the County of Orange ( "COUNTY "), the Orange County Flood Control District ( "DISTRICT "), the City of Costa 5 Mesa ( "COSTA MESA "), the City of Irvine ( "IRVINE ") , the City of Laguna Hills ("LAGUNA 6 HILLS "), the City of Laguna Woods ( "LAGUNA WOODS "), the City of Lake Forest ( "LAKE 7 FOREST "), the City of Newport Beach ( "NEWPORT BEACH "), the City of Orange ( "ORANGE "), 8 the City of Santa Ana ( "SANTA ANA "), the City of Tustin ( "TUSTIN "), the Irvine Ranch 9 Water District ( "IRWD ") and The Irvine Company ( "TIC "). The thirteen entities are 10 hereinafter sometimes jointly referred to as the "PARTIES" and individually as 11 "PARTY ". The cities are hereinafter sometimes jointly referred to as the "CITIES ". WITNESSETH 12 WHEREAS, the California Regional Water Quality. Control Board, Santa Ana Region 13 ( "REGIONAL BOARD ") has adopted Resolution No. 98 -9, as amended by Resolution No. 98- 14 100 amending the Water Quality Control Plan for the Santa Ana River Basin to 15 incorporate a Nutrient TMDL for the Newport Bay /San Diego Creek Watershed on April 17, 16 1998 and Resolution 99 -10 amending the Water Quality Control Plan for the Santa Ana 17 River Basin to incorporate a TMDL for Fecal Coliform in Newport Bay on April 9, 1999 18 pursuant to the provisions of section 303(d) of the Clean Water Act; and, 19 WHEREAS, the United States Environmental Protection Agency (USEPA) has 20 established TMDLs for toxic pollutants, San Diego Creek and Newport Bay, California or June-14, 2002, and the REGIONAL BOARD is developing implementation plans for each of 21 the toxic pollutants; and, - 22 WHEREAS, the adopted TMOLs contain requirements for studies, monitoring and the 23 development of programs to attain TMDL reduction targets over a multi -year period; 24 and, 25 WHEREAS, the PARTIES intend this AGREEMENT to provide for the performance of 26 studies, monitoring and development of programs and funding therefore for a period through to June 30, 2008 after which it is recognized that additional agreements may 1 Agreement No.D99 -12£ 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 and performing studies, research, monitoring and the development of programs related 12 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, 2006, unless sooner terminated as provided in Section S. 17 Section 3. FUNDING. Exhibit A, which is attached and by this reference is made 16 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 CITIES will be revised once every year pursuant to the formula provided in Exhibit B, 21 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. 2 Agreement No.D99 -12f 1 Section 4. PROGRAM BUDGET AND COSTS. The COUNTY shall submit a scope of work and 2 a budget for the following fiscal year to each of the PARTIES by February 15 of each 3 year. The budget shall contain an explanation of any recommended program changes, an 4 estimate of all planned expenditures and an estimate of the payment required from each PARTY for the following fiscal year. 5 The PARTIES shall be permitted to review and approve the program scope of work 6 and budget for the forthcoming year. criteria for approval shall be affirmative 7 written responses from all of the PARTIES. The COUNTY and DISTRICT will constitute 8 one approving PARTY. 9 The first year tasks and expenditures for FY 02/03 are six hundred twenty -five 10 thousand and nine hundred nineteen dollars ($625,919) as shown in Exhibit C -1, which 11 is attached hereto and made a part hereof. The budget for the scope of work for FY 12 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 13 . shall be entitled to charge to the program all costs for direct labor, materials, 14 equipment and outside contract services for costs associated with carrying out the 15 approved scope of work. Recoverable costs will also - include an overhead charge 16 calculated by the County Auditor - Controller which includes Public Facilities and 17 Resources Department overhead and County -wide cost allocation plan. 18 Section 5. PAYMENTS. Within 15 calendar days of.the effective date of this 19 AGREEMENT, the COUNTY shall send the PARTIES an invoice for a deposit which 20 constitutes their share of the total first year costs identified in Exhibit C -3, which 21 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. 22 The COUNTY shall prepare a fiscal year end accounting within 60 calendar days of 23 the end of the fiscal year. If the fiscal year end accounting results in costs (net 24 of interest earnings) exceeding the sum of the deposits, the COUNTY shall seek 25 approval of the excess cost from the PARTIES and shall invoice each PARTY for its 26 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. 3 �J J 1 2 3 4 5 6 7 8, 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Agreement No.D99- IIf the fiscal year end accounting results in the sum of the deposits exceeding costs II(net of interest earnings), the excess deposits will carry forward to reduce the billings for the following year. 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 PARTY'S deposit shall be based on it's prorated share of the approved annual budget, reduced by its prorated share of any surplus identified in the prior fiscal year end accounting. Interest earned on the PARTIES' deposits will not be paid to the PARTIES, but Iwill be credited against the PARTIES' share of the program costs. 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 i,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 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 .15 16 17 18 19 20 21 22 23 24 25 26 Agreement No.D99- laccordance with this agreement by the PARTY prior to the effective date of !,ltermination. The balance of the PARTIES may continue in the performance of the terms land conditions of this AGREEMENT on the basis of a revised allocation of cost based on 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 %). 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 permitted successors, 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 hereto 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 subject matter contained herein. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein. This AGREEMENT 5 Agreement No.D99 -12 1 supersedes all prior agreements and understandings between the PARTIES with respect t( 2 such matter. 3 Section 19. SEVERABILITY. If any part of this AGREEMENT is held, 4 determined or adjudicated to be illegal, void, or unenforceable by a court of 5 competent jurisdiction, the remainder of this AGREEMENT shall be given effect to the 6 fullest extent reasonably possible. 7 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 9 their successors and assigns. 10 Section 16. NOTICES. All notices required or desired to be given under 11 this AGREEMENT shall be in writing and (a) delivered personally, or (b) sent by 12 certified mail, return receipt requested or (c) sent by telefacsimile communication 13 followed by a mailed copy, to the addresses specified below, provided each PARTY may 14 change the address for notices by giving the other PARTIES at least ten (10) days 15 written notice of the new address. Notices shall be deemed received when actually 16 received in the office of the addressee or when delivery is refused, as shown on the 17 receipt of the U.S. Postal service, or other person making the delivery, except that 1$ notices sent by telefacsimile communication shall be deemed received on the first 19 business day following transmission. 20 Director of Public Services City of Costa Mesa 21 P.O. Box 1200 Costa Mesa, CA 92628 -1200 22 Director of Public Works City of Irvine 23 P.O. Box 19578 Irvine, CA 92623 -9578 - - 24 Director of Public Works 25 City of Laguna Hills - - 25201 Paseo de Alicia, #150 26 Laguna Hills, CA 92653 6 li 1 2 3 4 5.' 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Agreement No.D99- Director of Public Works City of Laguna Woods 24310 Moulton Pkwy, Ste K P.O. Box 2220 Laguna Hills, CA 92653 Director of Public Works City of Lake Forest 23161 Lake Center Dr., #100 Lake Forest, CA 92630 Director of Public Works City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92658 Director of Public Works City of Orange 300 E. Chapman Ave P.O. Box 449 Orange, CA 92866 Director of Public Works City of Santa Ana 101 W. 4`" St. Santa Ana, CA 92701 Director of Public Works City of Tustin 300 Centennial Way Tustin, CA 92680 Director, PFRD County of Orange P.O. Box 4048 Santa Ana, CA 92702 -4048 Director, Water Quality Irvine Ranch Water District 3512 Michelson Dr Irvine, CA 92712 Vice President of Environmental Affairs The Irvine Company 550 Newport Center Newport Beach, CA 92658 -8904 Section 17. EXECUTION OF AGREEMENT. This AGREEMENT may be executed in 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 1 2 31 411 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Agreement No.D99- 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: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 COUNTY OF ORANGE Date: ID — 7—b — U3 - APPROVED AS TO FORM: COUNTY COU EL By: Deputy Date: S-30 — 03 . SIGNED AND CERTIFIED THAT A COPY OF THIS AGREEMENT HAS BEEN DELIVERED TO THE CHAIRMAN OF THE BOARD By: (A4hn�� DARLENE J. BLOOM Clerk of the Board of Supervis s of Orange County, California Date: - b - Zb - 03 Agreement No.D99 -121 a political subdivi ion of the State of California By: Chairman of the Board of Supervisors ORANGE COUNTY FLOOD CONTROL DISTRICT a body ,corporate �and politic I " By: larva, E a Chairman of the Board of Supervisors qj 1 2 3 4 5 6 7 8 9 10 11 12 13' 14 15 16 17 18 19 20 21 22 23 24 25 26 CITY OF NEWPORT BEACH Date: 1, —) . —, 2003 ATTEST: i City Clerk By: iA9a3 t Agreement No.D99 -12E Attorney of Newport Beach 10 ua ,3