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HomeMy WebLinkAbout15 - Administration of TMDLs in Newport BayCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. is June 24, 2003 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: Cooperative Agreement -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 City Manager to sign and execute the Cooperative Agreement to fund Nutrient, Fecal Coliform and Toxics Total Maximum Daily Load (TMDL) Studies 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 • 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. Cooperative Agreement for TMDLs June 24, 2003 Page 2 Additionally, the requirements of the TMDLs are incorporated into the National Pollutant 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 not just to Newport Beach but 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, Orange, Santa Ana, and Tustin ( "watershed cities "). Each of the parties listed above cooperates -- via the aptly -named Cooperative Agreement -- in implementing the TMDLs. 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. COOPERATIVE AGREEMENT COST SHARE ALLOCATIONS COST PROGRAM LAND USE SHARE 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% The Irvine Company Open Space /Undefined Areas 12.5% Irvine Ranch Water District Cooperative Agreement for TMDLs June 24, 2003 Page 3 As shown above, 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. The individual cost shares for the County of Orange and Watershed Cities are provided for FY 2002 -2003 and FY 2003 -2004, and will be calculated for each subsequent year pursuant to a formula based on land area within the Newport Bay /San Diego Creek watershed and population. The total budget for TMDL activities under this agreement for FY 2002 -2003 is $625,919 and $690,620 in FY 2003 -04. Newport Beach will pay $40,764 for FY 2002- 03 and $44,977 for FY 2003 -04 or $85,741.00. The County of Orange administers the Agreement, but did not bill in FY 2002 -03. Committee Action: None. 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 Ralph M. Brown Act (72 hours in advance of the public. meeting at which the City Council considers the item). Funding Availability Funding for this action is provided for in the proposed FY 2003 -04 Capital Improvement Plan (page 43). Submitted by: Dave 10 Assistan City Manager Attachments: Cooperative Agreement Agreement No.D99 -128 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 -128, is made and entered into this day of , 2003 , by and between the County of Orange 4 ( "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 ". 12 WITNESSETH 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 on June 14, 2002, and the REGIONAL BOARD is developing implementation plans for each of 21 the toxic pollutants; and, 22 WHEREAS, the adopted TMDLs 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 -12E 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 with the TMDLs have been incurred prior to this agreement and that these costs are 4 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 duration of the AGREEMENT, but the individual cost shares for the COUNTY, DISTRICT and 20 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 -12E 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 estimate of all planned expenditures and an estimate of the payment required from each 4 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 ($690,620) 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 is attached hereto and made apart hereof. Each of the PARTIES shall pay the deposit 21 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 Agreement No.D99 -12f 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. 4 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 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 b its prorated share of an surplus identified in the Y p y p 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 45 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. An PARTY wishing to terminate its Y g 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 I 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 the funding formula in Exhibit A, provided however, that the pro rata shares for TIC 4 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 PARTIES to expend or as involving the PARTIES in any 8 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 a- 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 set forth or referred to herein. This AGREEMENT 5 I? Agreement No.D99 -12E 1 supersedes all prior agreements and understandings between the PARTIES with respect to 2 such matter. 3 Section 14. 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 8 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 18 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 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 -12£ 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. 4th 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. Section 18. GOVERNING LAW AND VENUE. This AGREEMENT has been negotiated and executed in the State of California and shall be governed by and construed under the laws of the State of California. In the event of any legal action to enforce or 7 III Agreement No.D99 -12E 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 394. 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 394 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: 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 8 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: APPROVED AS TO FORM COUNTY COUNSEL By: 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: Agreement No.D99 -128 a political subdivision of the State of California BY: Chairman of the Board of Supervisors ORANGE COUNTY FLOOD CONTROL DISTRICT a body corporate and politic By: Chairman of the Board of Supervisors 0 11.1 1 2 3 4 5 6 7 8 9 10 11 IDa 13 14 15 16 17 18 19 j 20 21 22 23 24 25 26 Agreement No.D99- ICITY OF NEWPORT BEACH By: Mayor Date: 2003 APPROVED AS TO FORM: ATTEST: (City Clerk City Attorney of Newport Beach 10