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HomeMy WebLinkAboutC-3436 - Agreement for Short-Term Dry Weather Urban Runoff Diversion at Buck GullyAGREEMENT FOR SHORT -TERM DRY WEATHER URBAN RUNOFF DIVERSION C-314X AT BUCK GULLY THIS AGREEMENT ( "Agreement°) is made and entered into, to be effective the 22nd day of June, 2001 (the "Effective Date "), by and between the ORANGE COUNTY SANITATION DISTRICT ("OCSD"), a county sanitation district, and the CITY OF NEWPORT BEACH ( "CITY "), a municipal corporation. OCSD and CITY are sometimes hereinafter individually referred to as "Party" and hereinafter collectively referred to as the "Parties ". RECITALS A. Dry Weather Urban Runoff is generated from the Buck Gully Drainage Area ( "Drainage Area "), as shown on Exhibit °A ". CITY believes that Dry Weather Urban Runoff entering the creek, coastal wetland pond, beach and ocean swimming area at Little Corona Beach from residential and golf course storm drains in the northern Buck Gully watershed may be responsible for the frequent public health advisory postings where bacteria samples have exceeded the limits set by state law (California Health and Safety Code sections 24156, et seq., Title 17, Chapter 5, Subchapter 1, Group 10, Articles 1 -5 sections 7952 -7962 of the California Code of Regulations) for swimmable waters. CITY in partnership with several government agencies proposes to conduct a "Bioregional Watershed Management Program" of Buck Gully /Little Corona Beach that focuses on urban runoff reduction, removal, and reuse, and restoration on the Buck Gully Watershed. As part of the urban runoff reduction element of the overall program, CITY proposes to temporarily divert a portion of the Dry Weather Urban Runoff from the Drainage Area into OCSD's Sewerage System. In conjunction with the temporary diversion system, CITY will be treating a portion of the Dry Weather Urban Runoff from the Drainage Area utilizing a new treatment process described as a mobile filtration system in which the treated water will be conveyed to a nearby golf course for reuse. CITY has requested and OCSD has agreed that OCSD accept the Dry Weather Urban Runoff generated from the Drainage Area into CITY's sewerage system which leads into OCSD's Sewerage System for the period of June 15, 2001 through October 15, 2001, B. CITY has agreed to undertake responsibility for: (1) the construction, operation and maintenance of all facilities required for the collection and discharge of Dry Weather Urban Runoff from the Drainage Area, through CITY sewer facilities as needed, to OCSD's Sewerage System; (2) compliance with all OCSD requirements relating to urban runoff generated, collected and transported by CITY to OCSD's Sewerage System; and (3) all liability and damages associated with the urban runoff discharge to OCSD's Sewerage System; C. CITY estimates that the volume of Dry Weather Urban Runoff generated from the Drainage Area entering the project will be approximately 0.144 million gallons per day, and estimates that the maximum flow rate of the discharge to OCSD's Sewerage System will be not more than 100 gallons per minute, and the maximum flow rate of the discharge to OCSD's Sewerage System will not result in a surcharge of any local sewer and /or the Sewerage System. D. Flows of Dry Weather Urban Runoff across public beaches and onto Little Corona Beach and the ocean have the potential for causing interference with the recreational use and enjoyment of public beaches by swimmers and beach -goers and other potential public health and /or environmental problems; WS &S TMIam -FINAL 7110101 137942 E. OCSD has available limited system capacity in its collection, treatment and disposal facilities which will allow OCSD to accept certain Dry Weather Urban Runoff discharges without adversely affecting OCSD's primary function of collection, treatment and disposal of sanitary sewer discharges; F. OCSD does not have system capacity available to allow urban runoff discharges to OCSD's facilities other than limited amounts of Dry Weather Urban Runoff, G. On March 28, 2001, OCSD established its Dry Weather Urban Runoff Policy ( "Policy ") by the adoption of Resolution No. OCSD 01 -07, a copy of which is attached hereto as Exhibit "B ". The policy was developed to address certain environmental concerns associated with Dry Weather Urban Runoff. H. OCSD has determined that it will accept Dry Weather Urban Runoff discharge from Drainage Area to its Sewerage System provided that the discharge complies with the terms of OCSD's Dry Weather Urban Runoff Policy and in accordance with OCSD Ordinance Nos. OCSD -01 and OCSD -15, as shown as Exhibit "C" and. any other current or future OCSD Ordinances, regulations, rules and requirements; I. OCSD is willing to accept CITY's Dry Weather Urban Runoff from the Drainage Area, provided that the discharge occurs in strict accordance with: (1) OCSD's Dry Weather Urban Runoff Policy, as such policy may be amended from time to time in OCSD's sole discretion; (2) the Wastewater Discharge Permit which OCSD intends to issue to CITY for such discharge, as such permit may be renewed or amended from time to time by OCSD in accordance with OCSD's Dry Weather Urban Runoff Policy; (3) OCSD's Wastewater Discharge Regulations set forth in OCSD Ordinance No. OCSD -01, and other Ordinances, as such regulations may be established or amended from time to time; (4) this Agreement; (5) procedures developed by OCSD addressing the discharge of urban runoff to the Sewerage System, including but not limited to procedures for the shut -off of such discharges; (6) any other applicable law and /or regulations governing the collection, treatment and/or disposal of the runoff and (7) any permits issued by regulatory agencies with jurisdiction over the runoff or the OCSD's wastewater system and operations. NOW, THEREFORE, OCSD and CITY agree as follows: 1.0 Terms and Definitions. As used in this Agreement, the following terms shall have the meanings set forth herein. 1.1 "Dry Weather' shall mean any period which does not fall within the definition of Wet Weather. 1.2 "Dry Weather Urban Runofr' means surface runoff which is generated on or flows from the Drainage Area during Dry Weather. 1.3 "Pollutants of Concern" shall mean pollutants identified on Exhibit "D" attached hereto and as such list of pollutants may be periodically amended by OCSD in its sole discretion, which pollutants OCSD has determined, or in the future determines, shall be the subject of regulation and /or monitoring pursuant to the Dry Weather Urban Runoff Policy. WS &S TLW:Iam FINAL 7110101 137942 1.4 "Pollutant Violation" shall mean the discharge at any time of any Pollutant(s) of Concern into the diversion system required herein to the Sewerage System which discharge is not in compliance with any condition, provision and /or discharge limit set forth in the Wastewater Discharge Permit, OCSD's Ordinances or this Agreement. 1.5 "Sewerage System" means the Sewerage System operated and maintained by OCSD, including its collection, treatment and disposal facilities and all additional similar facilities which may be installed or constructed subsequent to the date of this Agreement. 1.6 "Wastewater Discharge Permit' means the permit which OCSD intends to issue to CITY to authorize, under specified terms and conditions, the discharge of Dry Weather Urban Runoff to the Sewerage System, which permit, along with OCSD's Ordinances, Dry Weather Runoff Policy and this Agreement, shall govern such discharge to the Sewerage System. 1.7 "Wet Weather" shall mean any period during which measurable rainfall, recorded by a source deemed reliable by the OCSD, occurs in any portion of OCSD's service area and shall include the period following the cessation of rainfall until OCSD determines that the wet weather event is no longer impacting OCSD's collection, treatment and disposal facilities. 2.0 Diversion System. CITY shall be authorized to discharge Dry Weather Urban Runoff to OCSD's Sewerage System in accordance with the terms of this Agreement. 2.1 CITY shall construct and maintain a fully functioning diversion system as part of the "Project", acceptable to OCSD, which shall include facilities for collection of Dry Weather Urban Runoff and facilities for connection to the Citys sewerage system which ultimately flows into OCSD's Sewerage System. The diversion system shall be capable of excluding all flow received into the diversion system, from entering into OCSD's Sewerage System. The diversion system shall be operational prior to the discharge of any Dry Weather Urban Runoff from the Drainage Area to the Sewerage System. The diversion system shall be equipped with a lockable shut off device, satisfactory to OCSD, and to which OCSD shall be provided with access at all times. The diversion system shall be constructed and operated such that it can be shut off by either party at any time. CITY shall be responsible for the closing of all diversion system valves necessary to prevent any discharge to the Sewerage System during Wet Weather, Pollutant Violation, and emergency events. The failure of CITY to prevent all discharges to the Sewerage System during any Wet Weather, Pollutant Violation, or emergency event, shall be cause for immediate termination of the authorization for Dry Weather Urban Runoff discharges. In the event that CITY fails to shut off the flow to the Sewerage System during any Wet Weather, Pollutant Violation, or emergency event, OCSD shall be immediately entitled to shut the pump off. CITY shall have complete responsibility for the construction of the diversion system and all other associated facilities, including all costs associated therewith. CITY shall have complete responsibility for the operation and maintenance of the diversion system and all other associated facilities, including all costs associated therewith. The Parties acknowledge that OCSD is continuing to develop procedures for shutting off the discharge to OCSD's Sewerage System during Wet Weather events. CITY may provide suggestions to OCSD WS &S TI-Mam -FINAL 7/10101 137942 3 regarding such procedures, but the final determination of such procedures shall be made by OCSD. 2.2 In conjunction with CITY's application for a Wastewater Discharge Permit pursuant to Section 3, CITY shall submit to OCSD design drawings and specifications for maximum design flows and a proposed operation and maintenance plan for the proposed diversion system through which CITY intends to discharge Dry Weather Urban Runoff to the Sewerage System. The design drawings, specifications, operations and maintenance plan shall be sufficient to establish to the satisfaction of OCSD that the Project's Dry Weather Urban Runoff (1) shall not, alone or in conjunction with other discharges to the Sewerage System, cause pass through of and /or interference with OCSD's Sewerage System; and (2) shall otherwise comply with all OCSD requirements applicable to the proposed discharge. The CITY submittal shall identify equipment, satisfactory to OCSD, to be installed which equipment is capable of measuring and recording on a daily basis the Dry Weather Urban Runoff flow discharged from the Drainage Area to the Sewerage System. The Parties anticipate that a sump pump system will be necessary as part of the diversion system. The diversion system shall be limited to a flow rate that, in OCSD's sole determination, will not result in a surcharge of any local sewer and/or the Sewerage System. 2.3 No later than the commencement of either a Wet Weather or Pollutant Violation event, CITY shall direct the shut off of the flow of urban runoff (and accompanying storm water) to OCSD's Sewerage System. CITY shall be responsible for determining whether a Wet Weather event is occurring unless OCSD establishes and maintains in effect a written procedure through which OCSD undertakes to notify CITY of the commencement of Wet Weather events. The discharge shall not resume until CITY has obtained OCSD approval for the resumption of the discharge, as specified in accordance with established OCSD written procedures. (a) Notwithstanding the foregoing in Section 2.3 herein, if either CITY or OCSD initiates communication with the other; during which communication, an authorized OCSD representative grants permission for CITY to continue to discharge during a Wet Weather event or during any period of time when a Wet Weather event is forecasted to have some chance of occurring, CITY may continue the discharge to OCSD's Sewerage System during such event. (b) OCSD shall provide to CITY a list of persons authorized by OCSD to provide permission /approval for the continuation or resumption of the discharge. OCSD may periodically amend the list by notice to CITY provided pursuant to Section 18.2 herein. 2.4 CITY shall design the Project in a manner that reasonably prevents debris from entering into the Sewerage System. 2.5 CITY shall submit to OCSD, CITY's report and related documentation associated with its Buck Gully restoration and flow reduction project. 2.6 The Parties acknowledge that, due to special circumstances associated with the canyon terrain on which the Project is located, a small amount of groundwater may mix with the urban runoff and be discharged to OCSD's Sewerage System in accordance with this Agreement. This does not include construction dewatering discharge. WS &S TMIam -FINAL 7/10/01 137942 4 3.0 Wastewater Discharge Permit. Prior to the design and construction of the diversion system to the Sewerage System, CITY shall apply for a Wastewater Discharge Permit from OCSD. OCSD hereby retains the authority, in its sole discretion, to modify the terms, conditions and /or discharge limits set forth in the Wastewater Discharge Permit or otherwise require additional management practices, pollution prevention strategies and /or treatment equipment to improve the quality of the discharge to and reduce the impact of the discharge on the Sewerage System. A sample of a Wastewater Discharge Permit authorizing the discharge of urban runoff to OCSD's Sewerage System is attached as Exhibit "E ". 3.1 The initial term of the Wastewater Discharge Permit shall be June 15, 2001 to October 15, 2001. The permit shall only be renewed in accordance with the Dry Weather Urban Runoff Policy in effect at that time and the terms of this Agreement. 3.2 Upon issuance of the Wastewater Discharge Permit, CITY shall be authorized to discharge Dry Weather Urban Runoff through the diversion system into the Sewerage System in accordance with this Agreement. 3.3 Upon expiration of each Wastewater Discharge Permit and at such other times as OCSD deems appropriate, OCSD shall evaluate the quality and quantity of the discharge in order to assess the effectiveness of the existing terms, conditions and discharge limits in the permit and the need for modification of the permit. The terms, conditions and discharge limits of the renewal shall be dependent upon the results of OCSD's evaluation. 4.0 Compliance with Dry Weather Urban Runoff Policy. CITY shall comply with all the requirements of OCSD's Dry Weather Urban Runoff Policy, as such policy may be periodically amended by OCSD. 5.0 Quality and Quantity of Discharge. The quality and quantity of the Dry Weather Urban Runoff from the Drainage Area shall meet all terms, conditions, and discharge limits contained in OCSD's Wastewater Discharge Regulations, including subsequent amendments thereto, and the Wastewater Discharge Permit referred to in section 3.0 herein. 6.0 Self Monitoring. CITY shall conduct self monitoring of the Dry Weather Urban Runoff for Pollutants of Concern, as directed by OCSD, to insure compliance with the terms, conditions and discharge limits set forth in the Wastewater Discharge Permit, OCSD's Ordinances and this Agreement. Unless otherwise directed by OCSD, CITY shall conduct self monitoring of the Dry Weather Urban Runoff discharge on or about July 2, 2001, and on or about September 10, 2001. The results of all self monitoring shall be submitted to OCSD as directed by OCSD. 7.0 Enforcement. In the event of a Pollutant Violation or if the quality or quantity of the discharge to the Sewerage System does not meet the conditions, provisions or discharge limits set forth in this Agreement, and, notwithstanding the diversion system shutoff authorization set forth in Section 2.1, OCSD may take enforcement action for any violation of the terms of the Wastewater Discharge Permit and /or OCSD's Ordinances, which violation occurs prior to the shutoff, in accordance with the provisions of Ordinance No. OCSD -01, including any subsequent amendments thereof or successor ordinance thereto. For purposes of this Agreement, the Parties agree that the discharge from the Drainage Area to the Sewerage System will be treated WS &S TLW:Iam -FINAL 7/10/01 137942 5 as industrial wastewater pursuant to Government Code Sections 54739 - 54740.6, including any subsequent amendments thereto, and subject to the penalty and other provisions thereof. 8.0 Fees and Charges. The Parties acknowledge that, pursuant to OCSD's current Dry Weather Urban Runoff Policy, no fees or charges, other than non- compliance fees, if appropriate, will initially be imposed until the total discharge of Dry Weather Urban Runoff from all sources to OCSD's Sewerage System exceeds 4 million gallons per day. At such time as the discharge exceeds 4 million gallons per day, all dischargers, including CITY, shall thereafter pay operations and maintenance charges at the rate of $321.00 per million gallons for each discharger's total discharge to OCSD's Sewerage System. 8.1 It is not OCSD's intent at this time to charge OCSD's "Supplemental Capital Facility Capacity Charges" for the acceptance of Dry Weather Urban Runoff from any permitted discharger. In the event OCSD subsequently decides to charge Supplemental Capital Facility Capacity Charges, the charges will be levied on all then - existing and future permittees, including CITY, and will be established at the Significant Commercial - Industrial User rate pursuant to OCSD Ordinance No. OCSD -15, or any successor Ordinances thereto. The Parties acknowledge that the Supplemental Capital Facilities Capacity Charge which would be applicable to Dry Weather Urban Runoff is established by Ordinance No. OCSD -15, Section 3.07, and is calculated by measured flow, Biochemical Oxygen Demand ( "BOD "), and Suspended Solids ( "SS "), discharged per day 8.2 Notwithstanding any other provision of this Agreement, OCSD may, in its sole discretion, impose and/or modify fees and charges applicable to the discharge. In accordance with OCSD Ordinance Nos. OCSD -01 and OCSD -15, and any other current or future OCSD Ordinances, Resolutions, regulations, rules, and /or policies, CITY shall pay all fees and charges, in an amount as initially adopted or as subsequently modified by OCSD, related to the discharge, including but not limited to Sanitary Sewer Service Charges, Capital Facilities Capacity Charges, Supplemental Capital Facility Capacity Charges, Administrative Fees, and Non - Compliance Fees; provided that CITY shall not be required to pay any such fees or charges in an amount proportionately higher than any other public agency with whom OCSD enters into an agreement to accept Dry Weather Urban Runoff into its Sewerage System. Failure to pay any fees in a timely manner shall be cause for termination of the Wastewater Discharge Permit and the discharge to the Sewerage System. 8.3. CITY reserves the right to cease the diversion and terminate this agreement in the event that OCSD imposes Supplemental Capital Facility Capacity Charges or any diversion fee or charge. 9.0 Administrative Costs. Once the total discharge of urban runoff to OCSD's Sewerage System from all sources exceeds 4 million gallons per day, all OCSD administrative costs, as established by OCSD Ordinance No. OCSD -15, Article IV re Special Discharge Permits, related to the future implementation of this Agreement and monitoring of compliance by CITY with the Wastewater Discharge Permit and OCSD's Ordinances shall be borne by CITY. CITY shall reimburse OCSD within 30 days of submittal by OCSD of an invoice to CITY for such costs. WS &S TLW:Iam -FINAL 7110/01 137942 6 10.0 Access to CITY Facilities. CITY shall provide OCSD employees with 24- hour a day access to CITY's Buck Gully pump station and the diversion pump area during the diversion period. Such access is for purposes of OCSD inspection, monitoring, or closure of the valves controlling the discharge to OCSD's Sewerage System, as OCSD, in its sole discretion, determines is appropriate, and verification of compliance with the Wastewater Discharge Permit, OCSD's Ordinances and this Agreement. 11.0 Termination of Discharge. If OCSD determines that the Dry Weather Urban Runoff, alone or in conjunction with other discharges, is adversely affecting or threatening to adversely affect OCSD's Sewerage System or causing or threatening to cause a violation of its National Pollution Discharge Elimination System permit ( °NPDES permit'), OCSD shall so notify CITY, which shall immediately cease all discharge to the Sewerage System. 11.1 Evaluation of Impact. During the three (3) years following the effective date of this Agreement, and periodically thereafter, OCSD intends to evaluate the impacts of the acceptance of urban runoff on OCSD's Sewerage System and on OCSD's effluent. OCSD reserves the right to modify OCSD's Dry Weather Urban Runoff Policy, as OCSD, in its sole discretion, determines is appropriate. Any discharge from the Drainage Area to OCSD's Sewerage System shall be subject to such modified policy, including a termination of the program of acceptance of Dry Weather Urban Runoff. In the event this Agreement is still in force and effect due to amendments extending the termination date, OCSD shall provide the CITY with 90 days notice of any proposed amendment or termination of OCSD's Dry Weather Urban Runoff Policy. 12.0 Additional Requirements. CITY acknowledges that OCSD may, as it deems appropriate, impose requirements for implementation of additional management practices and pollution prevention strategies to reduce the burden on the Sewerage System. 13.0 CITY's Reliance on Consultants. CITY shall rely on its own staff and /or consultants to ensure that the facilities and equipment, which CITY installs, operates and maintains pursuant to this Agreement, shall function as intended. No approval or acceptance by OCSD of design drawings, management practices, technologies, pollution prevention strategies, or any other proposals by CITY shall be construed as a representation by OCSD that such design, management practices, technologies, pollution prevention strategies; or proposals will enable CITY to comply with the terms and conditions of the Wastewater Discharge Permit, OCSD's Ordinances, including amendments thereto, this Agreement or any other entitlement or permit issued by a regulatory authority to CITY. 14.0 Damage to OCSD's Sewerage System. As between OCSD and CITY, CITY shall bear the entire cost of and shall reimburse OCSD for any and all costs and /or expenses incurred by OCSD as a direct and determinable result of damage to the Sewerage System from any Dry Weather or Wet Weather runoff associated in any manner with the Property. 15.0 Indemnification. CITY shall defend, indemnify and hold harmless OCSD, and its Board members, officers, agents, and employees from any and all liabilities, claims, penalties, forfeitures, litigation or regulatory administrative proceedings, and the costs and expenses incident thereto (including cost of defense, experts, settlement, and WS &S TI-Mam -FINAL 7/10101 137942 reasonable attorney fees), which they may hereinafter incur, become responsible for or pay out as a result of actions or omissions associated with activities. related to this Agreement, including, but not limited to (1) any Dry Weather and /or Wet Weather runoff associated in any manner with the Drainage Area and (2) any impacts or runoff occurring as a result of the terminafion of the discharge to the Sewerage System or this Agreement. This indemnification shall apply to any affirmative acts or acts of omission by OCSD, including but not limited to.any OCSD action to close the diversion system valves and prevent the discharge to the Sewerage System but shall not apply to (1) any active negligence of OCSD (unless such active negligence is alleged to have occurred with respect to any OCSD action to render emergency assistance at the diversion system facilities in the event of an operational malfunction or other problem at such facilities) or (2) any intentional wrongful acts or omissions of OCSD. This indemnification provision shall survive the termination of the remaining provisions of this Agreement as to any matter(s) which otherwise arises before or upon such termination until the time as the determination of such matter(s) become final. In the event OCSD enters into an agreement(s) with any other parties) to accept dry weather urban runoff into its Sewerage System and any such agreement contains an indemnification clause different from this section, such clause shall, at CITY's election, exercised by written notice to OCSD, be deemed to replace this section as of the date(s) of such agreement(s). 16.0 No Capacity Right or Entitlement. In keeping with OCSD's long standing policy on all sewer system connections, nothing in this Agreement, or in the Wastewater Discharge Permit, shall be construed to provide CITY with any vested entitlement to discharge Dry Weather Urban Runoff to the Sewerage System or with a capacity right in the Sewerage System. 17.0 Third Party Beneficiary. Nothing in this Agreement shall be construed to create any rights or benefits in any third party to this Agreement. 18.0 General Provisions. 18.1 Authority to Enter Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right and authority to make this Agreement and bind each respective Party. 18.2 Notice. All notices, demands, invoices, and written communications required to be provided under this Agreement, shall be delivered at the following addresses or such other addresses as Parties may designate by written notice: If to CITY: City of Newport Beach Attention: Assistant City Manager 3300 Newport Boulevard Newport Beach, Ca. 92663 If to OCSD: Orange County Sanitation Districl Attention: General Manager 10844 Ellis Avenue Fountain Valley, California 92708 WS &S TLW:Iam -FINAL 7110/01 137942 8 Depending on the method of transmittal, notice shall be deemed received as follows: by facsimile or other electronic transmission, as of the date and time sent as confirmed by receipt; by messenger, as of the date and time delivered; and by U. S. Mail first class postage prepaid, as of seventy -two (72) hours after deposit in the U. S. Mail. 18.3 Construction of Agreement. It being agreed that all Parties or their agents have participated in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. The headings of the various articles and sections herein are for the convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content or intent of this Agreement. 18.4 Amendment. Modification. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing and signed by the Parties. 18.5 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenantor condition. No waiver, benefit, privilege or service voluntarily given or performed by a Party shall give the other Party.any contractual right by custom, estoppel or otherwise. 18.6 Binding Effect. Each and all of the covenants and conditions shall be binding on and shall inure to the benefit of the Parties, and their successors, heirs, personal representatives, or assigns. This section shall not be construed as an authorization for any Party to assign any right or obligation under this Agreement. 18.7 Invalidity, Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the entire agreement shall be deemed invalid, illegal or otherwise unenforceable. 18.8 Time Is Of The Essence. Time is of the essence in this Agreement, and the Parties agree to execute all documents and proceed with due diligence to complete all covenants and conditions. 18.9 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original and which collectively shall constitute one instrument. 18.10 Entire Agreement. This Agreement contains the entire agreement between the Parties and supersedes any prior oral or written statements or agreements between the Parties. 18.11 Attorneys' Fees. In the event that any action or proceeding is commenced between the Parties to enforce or interpret any term of this Agreement, the prevailing Party in such action or proceeding, in addition to all other relief to which it may be entitled, shall be entitled to recover from the other Party the prevailing Party's costs of suit and reasonable attorney fees. 18.12 Effect of Recitals. The Recitals above are deemed true and correct, are hereby incorporated in this Section as though fully set forth herein, and each WS &S TLW:Iam -FINAL 7110101 137942 g Party to this Agreement acknowledges and agrees that such Party is bound by the same. 18.13 Effective Date. This Agreement shall become effective on the date first set forth above. Notwithstanding the foregoing, no discharge of Dry Weather Urban Runoff to OCSD's Sewerage System shall occur prior to the later of (1) the completion of the diversion system and (2) CITY obtaining a Wastewater Discharge Permit pursuant to Section 3.0 herein. 18.14 Agreement Term. The term of this Agreement shall be from the period of June 15, 2001 through October 15, 2001. IN WITNESS WHEREOF, OCSD and CITY have each caused this Agreement to be executed by its duly authorized representative on the day and year set forth. ORANGE COUNTY SANITATION DISTRICT LIM APPROVED AS TO FORM: THOMA L. WOODRUFF DISTR T COUNSEL By: ��' Chair,'rd owe Secreta f the Boa(d nf Directors CITY OF NEWPORT BEACH By z. z-- �f- Homer L. Bluda , City Manager, ATTEST: LaVonne Harkless, City Clerk 'FOR APP, .OVED AS TO FORM: / �obert Burnham, City Attorney WS&S TLW:Iam-FINAL 7/10/01 137942 10 E E Orb /N) ITEM 15 C -343 TO: Members of the Newport Beach City Council FROM: Dave Kiff, Assistant City Manager SUBJECT: Buck Gully: Short -Term Dry Weather Urban Runoff Diversion Project RECOMMENDED (1) Authorize the Cily s participation in a short -term (until October 15, 2001) ACTION: diversion of dry weather flows from Buck Gully into the City's sanitary sewer system; (2) Find that the diversion project is categorically exempt under the California Environmental Quality Act (CEQA); C]. (3) Authorize the Mayor to execute an Agreement for Short -Term Dry Weather LJ Urban Runoff Diversion at Buck Gully with the Orange County Sanitation d O District (OCSD); t\l cL-, (4) Authorize the Public Works Department to issue and the City Clerk to record i 0- with the County an encroachment permit for the diversion project after all ¢" design criteria and environmental review is complete. (5) Authorize the City Manager to execute any related agreements associated with the proposed diversion where required by state or federal regulatory agencies. BACKGROUND: Califomia has 34 Areas of Special Biological Significance (ASBSs) off of our coastline. The State Water Resources Control Board ( SWRCB) designates all ASBSs. The California Ocean Plan (adopted in 1997 as a plan to manage California's offshore resources) directs that "wastes shall not be discharged to areas designated as being of special biological significance" and that any runoff into the ASBS is subject to discharge prohibitions established by the SWRCB and its nine regional boards (RWQCBs). Orange County has three ASBSs: • Newport Beach Marine Life Refuge ASBS • Irvine Coast Marine Life Refuge ASBS; and the • Heisler Park Ecological Reserve ASBS In November 2000, the Santa Ana RWQCB issued a cease and desist order (CDO #00 -87) to The Irvine Company, the California Department of Transportation (Caltrans), and the California Department of Parks and Recreation regarding the Irvine Coast ASBS. The Irvine Coast ASBS receives drainage water from a portion of the Newport Coast development, Pacific Coast Highway, Crystal Cove State Park, and El Morro Elementary School northerly of Laguna Beach. • Buck Gully Project Page 2 The CDO directed that the parties "cease and desist" from new waste discharges (including storm water and non -storm water runoff from developed areas) and from existing discharges over the coming two years. The CDO - approved November 16; 2000 by the Regional Board -- was appealed to the State Water Resources Control Board by Caltrans. The State Board later amended the CDO to direct Caltrans to "cease and desist" within five years instead of two. The ASBS off of Little Corona (Newport Beach Marine Life Refitge ASBS) extends oceanward from Poppy Avenue to the city limits at easterly edge of Cameo Shores. The ASBS' seaward boundary is 1000' from the beach (see map). Drainage into the Newport Beach ASBS comes from Buck Gully, Morning Canyon, and at least six storm drains. To date, the City has not received any correspondence from the Regional Board regarding inflows to the Newport Beach ASBS. Newport Beach Mmiue Life Refuge ASBS In mid -2000, Nancy Gardner of the Newport Beach Surfrider Chapter approached the City via the Harbor Quality Citizens' Advisory Committee (Ms. Gardner is a member of the HQAC) to attempt to "fix Buck Gully." Buck Gully is a 5 -6 mile drainage area in eastern Corona del Mar and Newport Coast that carries stormwater, spring water, and urban runoff (irrigation overflow and more) to the ocean at Little Corona - by the time the flow reaches the base of the Gully, about 160 -170 gallons per minute of fresh water enters the ASBS. Loeuer Buck Gully - /anuanj 2001 • Buck Gully Project Page 3 To Gardner, to the Harbor Quality Committee, and to other local environmental groups including Orange County CoastKeeper, "fixing Buck Gully' means: • Cutting flows back to natural, pre - development levels; • Cleaning up whatever flows remain via the use of natural water quality wetlands; and • Restoring habitat along the Gully to the types of native grasses, brush, and trees that would have existed prior to development. The Water Bond. In March 2000, the state's voters approved Proposition 13, the Safe Drinking Water, Clean Water, Watershed Protection, and Flood Prevention Bond Act. hicluded in the $1.97 billion bond act was a $90,000,000 authorization for the "Coastal Nonpoint Source (NPS) Control Program." The Coastal NPS Program funds projects that "restore and protect the water quality and environment of coastal water, estuaries, bays, and near shore waters and groundwaters." In late 2000, the State Water Resources Control Board (SWRCB) issued a Request for Proposals (RFP) for grants that "reduce or prevent non -point source pollution to ground and surface waters." Projects must be located within the boundaries of the six coastal Regional Water Quality Control Boards, including our Santa Ana Regional Board. On January 23, 2001, the City Council authorized the City to apply for a $225,000 grant from Proposition 13 for improvements to Buck Gully based on the three improvement principles identified above. Thanks in large part to Ms. Gardner s volunteer grant- writing ability, the City received this grant in May 2001 and is prepared to return to Council to authorize the grant's execution. Diversion of Flows to Sanitary Sewer. Much of the Buck Gully improvements proposed in the grant will require extensive and time- consuming planning, engineering, and development. But the same group of environmental advocates who helped us secure the Proposition 13 grant have proposed a short -term pilot project that would immediately eliminate fresh water flows into the ASBS by diverting the flows into the City's sewer pump station at Buck Gully. This diversion would allow researchers and others to see if any of the habitat value offshore of the Gully improves without a constant plume of fresh water and sediment feeding it (see drawings in Attachment A). City staff - including the Utilities Department and the Public Works Department - have reviewed the Buck Gully Diversion project and have tentatively determined that it can be achieved without compromising the capacity of the Gully pump station or the sewer main that leads from the pump station. Agreement and Permits Required. Any diversion of storm water or dry weather runoff into the sanitary sewer requires the approval of the Orange County Sanitation District (OCSD), since OCSD ultimately receives all of Newport Beach's sewer flows. OCSD's Dry Weather Urban Runoff Policy (adopted by OCSD via Resolution #01 -07) requires the execution of a complex Diversion Agreement between the City and OCSD before any diversion can begin. • • Buck Gully Project Page 4 The Agreement (included as Attachment B) directs the City to: • Construct and maintain the diversion system with rapid shut -off ability ( §2.1); • Submit drawings and designs to OCSD ( §2.2); • Shut off the system during wet weather events ( §2.3); • Apply for a wastewater discharge permit from OCSD (§3.0); • Monitor the discharge for pollutants of concern ( §6.0); • Pay a fee of $321 /million gallons per day if overall diversions into OCSD's system exceed 4.0 million gallons per day ( §8.0); • Allow OCSD staff access to the Buck Gully pump station ( §10.0); • Pay the entire cost of any damage to OCSD's sewer system resulting directly from the diversion ( §14.0); • Indemnify and hold harmless OCSD as a result of actions associated with the diversion (§15.0); and • Only operate the diversion until October 15, 2001 ( §18.14). The short -term diversion system itself will be installed by Clear Creek Systems, a company from Bakersfield that participated in a water quality testing program in Buck Gully in April. Clear Creek has proposed a cost of approximately $4,800.00 for the installation (see Attachment C). Funding for the installation is anticipated from Orange County CoastKeeper via a benefactor who has pledged resources to the Buck Gully project. Staff time - both from Utilities and Public Works - will be required to assist in the installation and monitoring of the diversion. The short -term project requires the following approvals or permits: • A City of Newport Beach Encroachment Permit (pending Council approval of this Agenda Item); • Execution of a Streambed Alteration Agreement with the California Department of Fish and Game (pending); • Written permission from the California Regional Water Quality Control Board, Santa Ana Region (approved - see Attachment D); • Written permission from the US Army Corps of Engineers (received verbally); • A Coastal Development Permit from the California Coastal Commission (pending). Environmental Review. After consultation with the City Attorney, we propose that the City Council make a finding with this Agenda Items actions that the temporary project at Buck Gully is categorically exempt (Public Resources Code Section 21084) under the California Environmental Quality Act (CEQA) under up to five exemption classes (CEQA Guidelines, Sections 15301 - 15332), including: CEQA Exemption CIasses #3 - New Construction of Small Structures #4 - Minor Alterations to Land #7 -- Actions by Regulatory Agencies for Protection of Natural Resources #11- Accessory Structures #32 - Infill Development Projects 0 • Suck Gully Project Page 5 THIS AGENDA This Agenda Item asks the City Council to authorize the City s participation in ITEM: the short -term diversion project, to make a CEQA exemption finding associated with the Project, and to authorize the Mayor to execute an Agreement with OCSD for the actual diversion. It also asks for the Council's authorization to allow City staff - via the City Manager - to complete any additional permitting or approvals that may be required in the near future. The diversion must cease October 15, 2001. ATTACHMENTS: Attachment A — Drawings of the Diversion Attachment B - OCSD /City Agreement for Short -Term Dry Weather Urban Runoff Diversion at Buck Gully Attachment C - Clear Creek Systems Proposal Attachment D - Letter from Regional Board r l �L1 -214 ti � t c7 Ehrr b wa e� BUCK GULLY SHORT -TERM DIVERSION PROJECT PROJECT LOCATION MAP I-1 LJ a a x m z JUL -16 -01 04:27 PM 0ronse Co. Coast KeePerll 9496757091 P.03 PAO- q0 < AL. o 12. �Ro�A JUL -16 -2001 17:08 •' ~' �C1MP co 4l Mai y � ; /f T, y� A Nsl� i i cg'a7u� Fw PEP. 3�CxaN \c >TAL� crF dSEUI� :��EArk; ; 4 ' • •' � fob 6taSEGTOR I � 94Y P.03 �a C r i Y a CD CO W W N Gully steambed runoff pick up configuration for Buck Gully summer runoff diversion T X8" PVC pipe with scoop opening facing upstream drilled holes on backside of pipe will drain excess water for Fish and Game regulations for 10 GPM to end at revetment wall. Est. of water from this pick up is 100 GPM. C r P m m A u P a 3 • B 1 P J b T O 0 O 0 9 N r x ID N V N Y Y A P . y N J m Y T 0) N . ATTACHMENT B AGREEMENT FOR SHORT -TERM DRY WEATHER URBAN RUNOFF DIVERSION AT BUCK GULLY THIS AGREEMENT ( "Agreement ") is made and entered into, to be effective the _th day of June, 2001 (the "Effective Date "), by and between the ORANGE COUNTY SANITATION DISTRICT ( "OCSD "), a county sanitation district, and the CITY OF NEWPORT BEACH ( "CITY "), a municipal corporation. OCSD and CITY are sometimes hereinafter individually referred to as "Party" and hereinafter collectively referred to as the "Parties ". RECITALS A. Dry Weather Urban Runoff is generated from the Buck Gully Drainage Area ( "Drainage Area "), as shown on Exhibit "A". CITY believes that Dry Weather Urban Runoff entering the creek, coastal wetland pond, beach and ocean swimming area at Little Corona Beach from residential and golf course storm drains in the northern Buck Gully watershed may be responsible for the frequent public health advisory postings where bacteria samples have exceeded the limits set by state law (California Health and Safety Code sections 24156, et seq., Title 17, Chapter 5, Subchapter 1, Group 10, Articles 1 -5 sections 7952 -7962 of the California Code of Regulations) for swimmable waters. CITY in partnership with several government agencies proposes to conduct a "Bioregional Watershed Management Program" of Buck Gully /Little Corona Beach that focuses on urban runoff reduction, removal, and reuse, and restoration on the Buck Gully Watershed. As part of the urban runoff reduction element of the overall program, CITY proposes to temporarily divert a portion of the Dry Weather Urban Runoff from the Drainage Area into OCSD's Sewerage System. In conjunction with the temporary diversion system, CITY will be treating a portion of the Dry Weather Urban Runoff from the Drainage Area utilizing a new treatment process described as a mobile filtration system in which the treated water will be conveyed to a nearby golf course for reuse. CITY has requested and OCSD has agreed that OCSD accept the Dry Weather Urban Runoff generated from the Drainage Area into CITY's sewerage system which leads into OCSD's Sewerage System for the period of June 15, 2001 through October 15, 2001, B. CITY has agreed to undertake responsibility for: (1) the construction, operation and maintenance of all facilities required for the collection and discharge of Dry Weather Urban Runoff from the Drainage Area, through CITY sewer facilities as needed, to OCSD's Sewerage System; (2) compliance with all OCSD requirements relating to urban runoff generated, collected and transported by CITY to OCSD's Sewerage System; and (3) all liability and damages associated with the urban runoff discharge to OCSD's Sewerage System; C. CITY estimates that the volume of Dry Weather Urban Runoff generated from the Drainage Area entering the project will be approximately 0.144 million gallons per day, and estimates that the maximum flow rate of the discharge to OCSD's Sewerage System will be not more than 100 gallons per minute, and the maximum flow rate of the discharge to OCSD's Sewerage System will not result in a surcharge of any local sewer and /or the Sewerage System. D. Flows of Dry Weather Urban Runoff across public beaches and onto Little Corona Beach and the ocean have the potential for causing interference with the recreational use and enjoyment of public beaches by swimmers and beach -goers and other potential public health and/or environmental problems; WSBS TLW:Iam -FINAL 7110101 137942 0 0 E. OCSD has available limited system capacity in its collection, treatment and disposal facilities which will allow OCSD to accept certain Dry Weather Urban Runoff discharges without adversely affecting OCSD's primary function of collection, treatment and disposal of sanitary sewer discharges; F. OCSD does not have system capacity available to allow urban runoff discharges to OCSD's facilities other than limited amounts of Dry Weather Urban Runoff; G. On March 28, 2001, OCSD established its Dry Weather Urban Runoff Policy ( "Policy ") by the adoption of Resolution No. OCSD 01 -07, a copy of which is attached hereto as Exhibit "B ". The policy was developed to address certain environmental concerns associated with Dry Weather Urban Runoff. H. OCSD has determined that it will accept Dry Weather Urban Runoff discharge from Drainage Area to its Sewerage System provided that the discharge complies with the terms of OCSD's Dry Weather Urban Runoff Policy and in accordance with OCSD Ordinance Nos. OCSD -01 and OCSD -15, as shown as Exhibit "C" and any other current or future OCSD Ordinances, regulations, rules and requirements; I. OCSD is willing to accept CITY's Dry Weather Urban Runoff from the Drainage Area, provided that the discharge occurs in strict accordance with: (1) OCSD's Dry Weather Urban Runoff Policy, as such policy may be amended from time to time in OCSD's sole discretion; (2) the Wastewater Discharge Permit which OCSD intends to issue to CITY for such discharge, as such permit may be renewed or amended from time to time by OCSD in accordance with OCSD's Dry Weather Urban Runoff Policy; (3) OCSD's Wastewater Discharge Regulations set forth in OCSD Ordinance No. OCSD -01, and other Ordinances, as such regulations may be established or amended from time to time; (4) this Agreement; (5) procedures developed by OCSD addressing the discharge of urban runoff to the Sewerage System, including but not limited to procedures for the shut -off of such discharges; (6) any other applicable law and /or regulations governing the collection, treatment and/or disposal of the runoff and (7) any permits issued by regulatory agencies with jurisdiction over the runoff or the OCSD's wastewater system and operations. NOW, THEREFORE, OCSD and CITY agree as follows: 1.0 Terms and Definitions. As used in this Agreement, the following terms shall have the meanings set forth herein. 1.1 "Dry Weather" shall mean any period which does not fall within the definition of Wet Weather. 1.2 "Dry Weather Urban Runoff" means surface runoff which is generated on or flows from the Drainage Area during Dry Weather. 1.3 "Pollutants of Concern" shall mean pollutants identified on Exhibit "D" attached hereto and as such list of pollutants may be periodically amended by OCSD in its sole discretion, which pollutants OCSD has determined, or in the future determines, shall be the subject of regulation and /or monitoring pursuant to the Dry Weather Urban Runoff Policy. WSSS TLW1am -FINAL 7/10101 137942 2 1.4 "Pollutant Violation' shall mean the discharge at any time of any Pollutant(s) of Concern into the diversion system required herein to the Sewerage System which discharge is not in compliance with any condition, provision and /or discharge limit set forth in the Wastewater Discharge Permit, OCSD's Ordinances or this Agreement. 1.5 "Sewerage System" means the Sewerage System operated and maintained by OCSD, including its collection, treatment and disposal facilities and all additional similar facilities which may be installed or constructed subsequent to the date of this Agreement. 1.6 "Wastewater Discharge Permit" means the permit which OCSD intends to issue to CITY to authorize, under specified terms and conditions, the discharge of Dry Weather Urban Runoff to the Sewerage System, which permit, along with OCSD's Ordinances, Dry Weather Runoff Policy and this Agreement, shall govern such discharge to the Sewerage System. 1.7 "Wet Weather" shall mean any period during which measurable rainfall, recorded by a source deemed reliable by the OCSD, occurs in any portion of OCSD's service area and shall include the period following the cessation of rainfall until OCSD determines that the wet weather event is no longer impacting OCSD's collection, treatment and disposal facilities. 2.0 Diversion System. CITY shall be authorized to discharge Dry Weather Urban Runoff to OCSD's Sewerage System in accordance with the terms of this Agreement. 2.1 CITY shall construct and maintain a fully functioning diversion system as part of the "Project ", acceptable to OCSD, which shall include facilities for collection of Dry Weather Urban Runoff and facilities for connection to the City's sewerage system which ultimately flows into OCSD's Sewerage System. The diversion system shall be capable of excluding all flow received into the diversion system, from entering into OCSD's Sewerage System. The diversion system shall be operational prior to the discharge of any Dry Weather Urban Runoff from the Drainage Area to the Sewerage System. The diversion system shall be equipped with a lockable shut off device, satisfactory to OCSD, and to which OCSD shall be provided with access at all times. The diversion system shall be.constructed and operated such that it can be shut off by either party at any time. CITY shall be responsible for the closing of all diversion system valves necessary to prevent any discharge to the Sewerage System during Wet Weather, Pollutant Violation, and emergency events. The failure of CITY to prevent all discharges to the Sewerage System during any Wet Weather, Pollutant Violation, or emergency event, shall be cause for immediate termination of the authorization for Dry Weather Urban Runoff discharges. In the event that CITY fails to shut off the flow to the Sewerage System during any Wet Weather, Pollutant Violation, or emergency event, OCSD shall be immediately entitled to shut the pump off. CITY shall have complete responsibility for the construction of the diversion system and all other associated facilities, including all costs associated therewith. CITY shall have complete responsibility for the operation and maintenance of the diversion system and all other associated facilities, including all costs associated therewith. The Parties acknowledge that OCSD is continuing to develop procedures for shutting off the discharge to OCSD's Sewerage System during Wet Weather events. CITY may provide suggestions to OCSD WSBS TLW:Iam -FINAL 7110101 137942 3 0 0 regarding such procedures, but the final determination of such procedures shall be made by OCSD. 2.2 In conjunction with CITY's application for a Wastewater Discharge Permit pursuant to Section 3, CITY shall submit to OCSD design drawings and specifications for maximum design flows and a proposed operation and maintenance plan for the proposed diversion system through which CITY intends to discharge Dry Weather Urban Runoff to the Sewerage System. The design drawings, specifications, operations and maintenance plan shall be sufficient to establish to the satisfaction of OCSD that the Project's Dry Weather Urban Runoff (1) shall not, alone or in conjunction with other discharges to the Sewerage System, cause pass through of and /or interference with OCSD's Sewerage System; and (2) shall otherwise comply with all OCSD requirements applicable to the proposed discharge. The CITY submittal shall identify equipment, satisfactory to OCSD, to be installed which equipment is capable of measuring and recording on a daily basis the Dry Weather Urban Runoff flow discharged from the Drainage Area to the Sewerage System. The Parties anticipate that a sump pump system will be necessary as part of the diversion system. The diversion system shall be limited to a flow rate that, in OCSD's sole determination, will not result in a surcharge of any local sewer and/or the Sewerage System. 2.3 No later than the commencement of either a Wet Weather or Pollutant Violation event, CITY shall direct the shut off of the flow of urban runoff (and accompanying storm water) to OCSD's Sewerage System. CITY shall be responsible for determining whether a Wet Weather event is occurring unless OCSD establishes and maintains in effect a written procedure through which OCSD undertakes to notify CITY of the commencement of Wet Weather events. The discharge shall not resume until CITY has obtained OCSD approval for the resumption of the discharge, as specified in accordance with established OCSD written procedures. (a) Notwithstanding the foregoing in Section 2.3 herein, if either CITY or OCSD initiates communication with the other, during which communication, an authorized OCSD representative grants permission for CITY to continue to discharge during a Wet Weather event or during any period of time when a Wet Weather event is forecasted to have some chance of occurring, CITY may continue the discharge to OCSD's Sewerage System during such event. (b) OCSD shall provide to CITY a list of persons authorized by OCSD to provide permission /approval for the continuation or resumption of the discharge. OCSD may periodically amend the list by notice to CITY provided pursuant to Section 18.2 herein. 2.4 CITY shall design the Project in a manner that reasonably prevents debris from entering into the Sewerage System. 2.5 CITY shall submit to OCSD, CITY's report and related documentation associated with its Buck Gully restoration and flow reduction project. 2.6 The Parties acknowledge that, due to special circumstances associated with the canyon terrain on which the Project is located, a small amount of groundwater may mix with the urban runoff and be discharged to OCSD's Sewerage System in accordance with this Agreement. This does not include construction dewatering discharge. WSBS TLW:Iam -FINAL 7/10101 137942 4 0 0 3.0 Wastewater Discharge Permit. Prior to the design and construction of the diversion system to the Sewerage System, CITY shall apply for a Wastewater Discharge Permit from OCSD. OCSD hereby retains the authority, in its sole discretion, to modify the terms, conditions and /or discharge limits set forth in the Wastewater Discharge Permit or otherwise require additional management practices, pollution prevention strategies and/or treatment equipment to improve the quality of the discharge to and reduce the impact of the discharge on the Sewerage System. A sample of a Wastewater Discharge Permit authorizing the discharge of urban runoff to OCSD's Sewerage System is attached as Exhibit "E ". 3.1 The initial term of the Wastewater Discharge Permit shall be June 15, 2001 to October 15, 2001. The permit shall only be renewed in accordance with the Dry Weather Urban Runoff Policy in effect at that time and the terms of this Agreement. 3.2 Upon issuance of the Wastewater Discharge Permit, CITY shall be authorized to discharge Dry Weather Urban Runoff through the diversion system into the Sewerage System in accordance with this Agreement. 3.3 Upon expiration of each Wastewater Discharge Permit and at such other times as OCSD deems appropriate, OCSD shall evaluate the quality and quantity of the discharge in order to assess the effectiveness of the existing terms, conditions and discharge limits in the permit and the need for modification of the permit. The terms, conditions and discharge limits of the renewal shall be dependent upon the results of OCSD's evaluation. 4.0 Compliance with Dry Weather Urban Runoff Policy. CITY shall comply with all the requirements of OCSD's Dry Weather Urban Runoff Policy, as such policy may be periodically amended by OCSD. 5.0 Quality and Quantity of Discharge. The quality and quantity of the Dry Weather Urban Runoff from the Drainage Area shall meet all terms, conditions, and discharge limits contained in OCSD's Wastewater Discharge Regulations, including subsequent amendments thereto, and the Wastewater Discharge Permit referred to in section 3.0 herein. 6.0 Self Monitoring. CITY shall conduct self monitoring of the Dry Weather Urban Runoff for Pollutants of Concern, as directed by OCSD, to insure compliance with the terms, conditions and discharge limits set forth in the Wastewater Discharge Permit, OCSD's Ordinances and this Agreement. Unless otherwise directed by OCSD, CITY shall conduct self monitoring of the Dry Weather Urban Runoff discharge on or about July 2, 2001, and on or about September 10, 2001. The results of all self monitoring shall be submitted to OCSD as directed by OCSD. 7.0 Enforcement. In the event of a Pollutant Violation or if the quality or quantity of the discharge to the Sewerage System does not meet the conditions, provisions or discharge limits set forth in this Agreement, and, notwithstanding the diversion system shutoff authorization set forth in Section 2.1, OCSD may take enforcement action for any violation of the terms of the Wastewater Discharge Permit and/or OCSD's Ordinances, which violation occurs prior to the shutoff, in accordance with the provisions of Ordinance No. OCSD -01, including any subsequent amendments thereof or successor ordinance thereto. For purposes of this Agreement, the Parties agree that the discharge from the Drainage Area to the Sewerage System will be treated WS &S TI-Mam -FINAL 7110/01 137942 5 0 0 as industrial wastewater pursuant to Government Code Sections 54739 - 54740.6, including any subsequent amendments thereto, and subject to the penalty and other provisions thereof. 8.0 Fees and Charges. The Parties acknowledge that, pursuant to OCSD's current Dry Weather Urban Runoff Policy, no fees or charges, other than non- compliance fees, if appropriate, will initially be imposed until the total discharge of Dry Weather Urban Runoff from all sources to OCSD's Sewerage System exceeds 4 million gallons per day. At such time as the discharge exceeds 4 million gallons per day, all dischargers, including CITY, shall thereafter pay operations and maintenance charges at the rate of $321.00 per million gallons for each discharger's total discharge to OCSD's Sewerage System. 8.1 It is not OCSD's intent at this time to charge OCSD's "Supplemental Capital Facility Capacity Charges" for the acceptance of Dry Weather Urban Runoff from any permitted discharger. In the event OCSD subsequently decides to charge Supplemental Capital Facility Capacity Charges, the charges will be levied on all then - existing and future permittees, including CITY, and will be established at the Significant Commercial - Industrial User rate pursuant to OCSD Ordinance No. OCSD -15, or any successor Ordinances thereto. The Parties acknowledge that the Supplemental Capital Facilities Capacity Charge which would be applicable to Dry Weather Urban Runoff is established by Ordinance No. OCSD -15, Section 3.07, and is calculated by measured flow, Biochemical Oxygen Demand ( "BOD "), and Suspended Solids ( "SS "), discharged per day 8.2 Notwithstanding any other provision of this Agreement, OCSD may, in its sole discretion, impose and/or modify fees and charges applicable to the discharge. In accordance with OCSD Ordinance Nos. OCSD -01 and OCSD -15, and any other current or future OCSD Ordinances, Resolutions, regulations, rules, and/or policies, CITY shall pay all fees and charges, in an amount as initially adopted or as subsequently modified by OCSD, related to the discharge, including but not limited to Sanitary Sewer Service Charges, Capital Facilities Capacity Charges, Supplemental Capital Facility Capacity Charges, Administrative Fees, and Non - Compliance Fees; provided that CITY shall not be required to pay any such fees or charges in an amount proportionately higher than any other public agency with whom OCSD enters into an agreement to accept Dry Weather Urban Runoff into its Sewerage System. Failure to pay any fees in a timely manner shall be cause for termination of the Wastewater Discharge Permit and the discharge to the Sewerage System. 8.3. CITY reserves the right to cease the diversion and terminate this agreement in the event that OCSD imposes Supplemental Capital Facility Capacity Charges or any diversion fee or charge. 9.0 Administrative Costs. Once the total discharge of urban runoff to OCSD's Sewerage System from all sources exceeds 4 million gallons per day, all OCSD administrative costs, as established by OCSD Ordinance No. OCSD -15, Article IV re Special Discharge Permits, related to the future implementation of this Agreement and monitoring of compliance by CITY with the Wastewater Discharge Permit and OCSD's Ordinances shall be borne by CITY. CITY shall reimburse OCSD within 30 days of submittal by OCSD of an invoice to CITY for such costs. WSBS TMIam -FINAL 7/10101 137942 6 10.0 Access to CITY Facilities. CITY shall provide OCSD employees with 24- hour a day access to CITY's Buck Gully pump station and the diversion pump area during the diversion period. Such access is for purposes of OCSD inspection, monitoring, or closure of the valves controlling the discharge to OCSD's Sewerage System, as OCSD, in its sole discretion, determines is appropriate, and verification of compliance with the Wastewater Discharge Permit, OCSD's Ordinances and this Agreement. 11.0 Termination of Discharge. If OCSD determines that the Dry Weather Urban Runoff, alone or in conjunction with other discharges, is adversely affecting or threatening to adversely affect OCSD's Sewerage System or causing or threatening to cause a violation of its National Pollution Discharge Elimination System permit ( °NPDES permit "), OCSD shall so notify CITY, which shall immediately cease all discharge to the Sewerage System. 11.1 Evaluation of Impact. During the three (3) years following the effective date of this Agreement, and periodically thereafter, OCSD intends to evaluate the impacts of the acceptance of urban runoff on OCSD's Sewerage System and on OCSD's effluent. OCSD reserves the right to modify OCSD's Dry Weather Urban Runoff Policy, as OCSD, in its sole discretion, determines is appropriate. Any discharge from the Drainage Area to OCSD's Sewerage System shall be subject to such modified policy, including a termination of the program of acceptance of Dry Weather Urban Runoff. In the event this Agreement is still in force and effect due to amendments extending the termination date, OCSD shall provide the CITY with 90 days notice of any proposed amendment or termination of OCSD's Dry Weather Urban Runoff Policy. 12.0 Additional Reauirements. CITY acknowledges that OCSD may, as it deems appropriate, impose requirements for implementation of additional management practices and pollution prevention strategies to reduce the burden on the Sewerage System. 13.0 CITY's Reliance on Consultants. CITY shall rely on its own staff and/or consultants to ensure that the facilities and equipment, which CITY installs, operates and maintains pursuant to this Agreement, shall function as intended. No approval or acceptance by OCSD of design drawings, management practices, technologies, pollution prevention strategies, or any other proposals by CITY shall be construed as a representation by OCSD that such design, management practices, technologies, pollution prevention strategies, or proposals will enable CITY to comply with the terms and conditions of the Wastewater Discharge Permit, OCSD's Ordinances, including amendments thereto, this Agreement or any other entitlement or permit issued by a regulatory authority to CITY. 14.0 Damage to OCSD's Sewerage System. As between OCSD and CITY, CITY shall bear the entire cost of and shall reimburse OCSD for any and all costs and /or expenses incurred by OCSD as a direct and determinable result of damage to the Sewerage System from any Dry Weather or Wet Weather runoff associated in any manner with the Property. 15.0 Indemnification. CITY shall defend, indemnify and hold harmless OCSD, and its Board members, officers, agents, and employees from any and all liabilities, claims, penalties, forfeitures, litigation or regulatory administrative proceedings, and the costs and expenses incident thereto (including cost of defense, experts, settlement, and WSBS TMIam -FINAL 7110101 137942 0 0 reasonable attorney fees), which they may hereinafter incur, become responsible for or pay out as a result of actions or omissions associated with activities related to this Agreement, including, but not limited to (1) any Dry Weather and /or Wet Weather runoff associated in any manner with the Drainage Area and (2) any impacts or runoff occurring as a result of the termination of the discharge to the Sewerage System or this Agreement. This indemnification shall apply to any affirmative acts or acts of omission by OCSD, including but not limited to any OCSD action to close the diversion system valves and prevent the discharge to the Sewerage System but shall not apply to (1) any active negligence of OCSD (unless such active negligence is alleged to have occurred with respect to any OCSD action to render emergency assistance at the diversion system facilities in the event of an operational malfunction or other problem at such facilities) or (2) any intentional wrongful acts or omissions of OCSD. This indemnification provision shall survive the termination of the remaining provisions of this Agreement as to any matter(s) which otherwise arises before or upon such termination until the time as the determination of such matter(s) become final. In the event OCSD enters into an agreement(s) with any other part(ies) to accept dry weather urban runoff into its Sewerage System and any such agreement contains an indemnification clause different from this section, such clause shall, at CITY's election, exercised by written notice to OCSD, be deemed to replace this section as of the date(s) of such agreement(s). 16.0 No Capacity Right or Entitlement. In keeping with OCSD's long standing policy on all sewer system connections, nothing in this Agreement, or in the Wastewater Discharge Permit, shall be construed to provide CITY with any vested entitlement to discharge Dry Weather Urban Runoff to the Sewerage System or with a capacity right in the Sewerage System. 17.0 Third Party Beneficiary. Nothing in this Agreement shall be construed to create any rights or benefits in any third party to this Agreement. 18.0 General Provisions. 18.1 Authority to Enter Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right and authority to make this Agreement and bind each respective Party. 18.2 Notice. All notices, demands, invoices, and written communications required to be provided under this Agreement, shall be delivered at the following addresses or such other addresses as Parties may designate by written notice: If to CITY: City of Newport Beach Attention: Assistant City Manager 3300 Newport Boulevard Newport Beach, Ca. 92663 If to OCSD: Orange County Sanitation District Attention: General Manager 10844 Ellis Avenue Fountain Valley, California 92708 WS &S TLWiam -FINAL 7110/01 137942 8 0 0 Depending on the method of transmittal, notice shall be deemed received as follows: by facsimile or other electronic transmission, as of the date and time sent as confirmed by receipt; by messenger, as of the date and time delivered; and by U. S. Mail first class postage prepaid, as of seventy -two (72) hours after deposit in the U. S. Mail. 18.3 Construction of Agreement. It being agreed that all Parties or their agents have participated in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. The headings of the various articles and sections herein are for the convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content or intent of this Agreement. 18.4 Amendment, Modification. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing and signed by the Parties. 18.5 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege or service voluntarily given or performed by a Party shall give the other Party any contractual right by custom, estoppel or otherwise. 18.6 Binding Effect. Each and all of the covenants and conditions shall be binding on and shall inure to the benefit of the Parties, and their successors, heirs, personal representatives, or assigns. This section shall not be construed as an authorization for any Party to assign any right or obligation under this Agreement. 18.7 Invalidity, Severabilitv. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the entire agreement shall be deemed invalid, illegal or otherwise unenforceable. 18.8 Time Is Of The Essence. Time is of the essence in this Agreement, and the Parties agree to execute all documents and proceed with due diligence to complete all covenants and conditions. 18.9 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original and which collectively shall constitute one instrument. 18.10 Entire Agreement. This Agreement contains the entire agreement between the Parties and supersedes any prior oral or written statements or agreements between the Parties. 18.11 Attorneys' Fees. In the event that any action or proceeding is commenced between the Parties to enforce or interpret any term of this Agreement, the prevailing Party in such action or proceeding, in addition to all other relief to which it may be entitled, shall be entitled to recover from the other Party the prevailing Party's costs of suit and reasonable attorney fees. 18.12 Effect of Recitals. The Recitals above are deemed true and correct, are hereby incorporated in this Section as though fully set forth herein, and each WS &S TI-Mam -FINAL 7110/01 137942 g • F-1 L Party to this Agreement acknowledges and agrees that such Party is bound by the same. 18.13 Effective Date. This Agreement shall become effective on the date first set forth above. Notwithstanding the foregoing, no discharge of Dry Weather Urban Runoff to OCSD's Sewerage System shall occur prior to the later of (1) the completion of the diversion system and (2) CITY obtaining a Wastewater Discharge Permit pursuant to Section 3.0 herein. 18.14 Agreement Term. The term of this Agreement shall be from the period of June 15, 2001 through October 15, 2001. IN WITNESS WHEREOF, OCSD and CITY have each caused this Agreement to be executed by its duly authorized representative on the day and year set forth. ORANGE COUNTY SANITATION DISTRICT By: Chair, Board of Directors By: Secretary of the Board of Directors APPROVED AS TO FORM: THOMAS L. WOODRUFF DISTRICT COUNSEL CITY OF NEWPORT BEACH By Homer L. Bludau, City Manager, ATTEST: LaVonne Harkless, City Clerk APPROVED AS TO FORM: Robert Burnham, City Attorney WS &S TLW:Iam -FINAL 7110101 137942 10 JUL -13 -01 10:48 AM Orange Co. Coast KeePerll 0/111/2041 0:'dd bE13246 CCS Clear Creek Systems, Inc. July 12, 2001 M.T. Carry Brown Orange County Coastkeeper 441 Old Newport Blvd, Ste 103 Newport Beach, CA 92663 SuNnined Via Fax. (949) 675 -7091 RE: Buck Gully AivetsionPsoposal Dear Mr. Brown: 9496757091 P.02 • PRA;: 01 ATTACHMENT Clear Creek Systems, Inc. (CCS) is pleased to submit this proposal for installation and maintenance of a diversion pump system for the lower reaches of Buck Gully in Newport Beach, Califomia. I 'this proposal includes the purchase, installation, and maintenance of the temporary diversion pump and piping, Equipment included in this proposal: I. 3 hp centrifugal pump 2. Ptunp enclosure 3. 9" PVC collection pipe with inlet screed ( approximately g') 4. 3" sch. 40 pvc pipe (approximately 250') 5. Temporary electrical cord (approximately 250') The cost for this equipment is S4,S00.00. If Coastkccpex or the City of Newport Beach wish, a high level sensor can be installed fit the sc%ef collection pit that will receive the diverted runoff, This will shut the divetsion Pump off if the level rises too high in the sump. The price for this sensor and installation is $300.00. Tem1s are 50% upon receipt of order and 50% within to days of installation. Any labor costs that CCS incurs on the proposed installation over $4,500.00 will be viewed as an in kind charitable contribution CCS will provide once weekly monitoring of the pump and inlet for S50ofmonth for the 90 -ds). period of the project. 4101 L'nloa Avenue - Aakecatlald, CA 93303 (661) 324 -9634 -Fax (66L) 322 -3206 • www.elearcnakayaxams.dom JUL -13 -2001 1129 93Y. P.02 JUL -13 -81 10:49 AM Orange Co. Coast Kee►erll 9496767091 e7i11121501 01:44 GE3 ,620E C., 0 P.03 PACE 92 CCS has previously submitted drawings of the electrical diagram and system layout. It is planned that the temporary electrical cord will be secured to the bottom of the piping system and that neither the electrical nor piping will be buried. Installation is estimated to take four days and can begin approximately five working days front receipt of order. We look forward to working with you on this project. Sitwcrel}, hoe Gannon Clear Creek Systems, Inc. JUL -13 -2001 11:29 93Y P.03 07/03/2001 15:38 909- 321 -4580 REGIONAL WATER BOARD PAGE 01 0 i "b- 0 California Regional Water Quality Control Board Santa Ana Region Winston H. Htckox Immet Address: http: / /...w..s+�ob.a,goy /rwgcb8 Gray Davis Secretary for 3737 Main Strect, Suite 500, Riverside, California 92501 -3348 Governor Environmental Phone (909) 792 -4130 - FAX (909) 781 -6288 Protection flee energy challengejacing California is real Every Californian needs to take invmatlate aaion to reduce energy consumption, For a list ofsimple ways you can reduce demand and cut your energy corm, see our websire ar w ,swrc6.ca.gav 1rwgcb8. July 3, 2001 Dave Kiff, Assistant City Manager City of Newport Beach P. O. Box 1768 Newport Beach, CA 92659 -1768 BUCK GULLY DRY WEATHER FLOW DIVERSION PROJECT Dear Mr. Kiff: This is in response to your June 22, 2001 request for our approval to conduct a short-term diversion of all flows from the Buck Gully area. You are proposing to divert flows in Buck Gully from July through October 2001 into the sanitary sewer system for treatment and disposal. This test is to determine if the current flows through Buck Gully are a source of microbial contamination at the Little Corona Beach. At the end of this test program, the City will ensure that the area is restored to its current conditions. This is to notify you that we have no objection to this temporary diversion of water from Buck Gully to the sanitary sewer system. If you have any questions, please contact Mark Smythe at 909 - 782 -4998 or me at 909 - 782 -3238. Sincerely, Michael J. Adackapara Division Chief Cc- Orange County Coastkeeper — Mike Beanan/Garry Brown Surfrider Foundation — Nancy Gardener California Environmental Protection Agenty SID %0 Recycled Paper