HomeMy WebLinkAboutC-3621 - Cooperative Agreement to Fund Nutrient, Fecal Coliform and Toxics Total Maximum Daily Loads (TMDL's) Studies in the Newport Bay WatershedCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 18
August 10, 2010
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Public Works Department
Bob Stein, Assistant City Engineer
949 - 644 -3322, rstein @newportbeachca.gov
SUBJECT: Amendment No. 3 to a Cooperative Agreement for the Administration of
Total Maximum Daily Loads in Newport Bay
ISSUE
Consider extending the existing multi- agency cooperative agreement addressing water
quality in the Newport Bay watershed.
RECOMMENDATION
Authorize the Mayor to sign and execute Amendment No. 3 to the 2003 multi- agency
Cooperative Agreement to fund Nutrient, Fecal Coliform and Toxics Total Maximum Daily
Load (TMDL) Studies, Projects & Programs in the Newport Bay Watershed.
DISCUSSION
Newport Bay is defined as an impaired water body per §303(d) of the Federal Clean Water
Act. As such, the US Environmental Protection Agency and the State Water Resources
Control Board via the California Regional Water Quality Control Board, Santa Ana Region
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 sediment, nutrients, fecal coliform
bacteria, toxic pollutants and metals.
The adopted TMDLs contain requirements for studies, monitoring and the development of
programs and projects to attain TMDL contaminant reduction targets over a multi -year
period. Additionally, the requirements of the TMDLs are incorporated into the National
Pollutant Discharge Elimination System (NPDES) Municipal Separate Storm Sewer
System (MS4) Permit.
While Newport Bay is wholly within the city limits of Newport Beach, the Newport Bay
watershed includes more than 150 square miles of territory. Because the Bay's
impairments involve pollutants from throughout the watershed, the duty to adhere to the
TMDLs applies to many of the entities within the watershed, including:
Amendment #3 to Cooperative Agreement for TMDLs
August 10, 2010
Page 2
• The County of Orange
• The Orange County Flood Control District;
• The Irvine Ranch Water District (IRWD)
• California Department of Transportation (Caltrans;
• Tustin Legacy Community Partners
• Lennar Homes of California
• The Great Park Corporation
• The Irvine Company
• The cities of Costa Mesa, Irvine, Laguna Hills, Laguna Woods, Lake Forest,
Newport Beach, Orange, Santa Ana, and Tustin ( "watershed cities ")
Each of the parties listed above cooperates -- via a Cooperative Agreement formally
executed by all of the parties in September 2003. That agreement was first amended in
2006, a second time in 2009, and which went to Council on June 24, 2003, June 27, 2006,
and March 24, 2009, respectively -- to implement and administer the obligations of the
nutrient, fecal coliform bacteria and toxics TMDLs through at least 2010. Under the
Agreement, the parties developed a funding formula to share the costs for complying with
the TMDLs within the Newport Bay /San Diego Creek watershed.
Additional Background:
Amendment No. 1 was executed on July 5, 2006 and added four new cost share parties:
• The California Department of Transportation (Caltrans)
• Tustin Legacy Community Partners
• Lennar Homes
• The Great Park Corporation
Amendment No. 2 extended the term of the agreement for two years (through June 30,
2010), and recognized prior payments for services made directly by Caltrans ($75,000)
and IRWD ($6,932.88) for work plan development and bay algae studies respectively, as
credits in the 2008 -2009 program budget
The purpose of Amendment No. 3 is to extend the term of the agreement for two years
(through June 30, 2012) and to underscore the parties' cooperative approach toward
developing the program's scope of work and budget. The agreement notes that Tustin
Legacy Community Partners and Caltrans have withdrawn from the Agreement effective
June 30, 2010, and that Orange County Great Park Corporation has combined with the
City of Irvine. Based on these changes, the cost -share percentages have been modified
as shown in Table 1. The funding obligation for the City of Newport Beach in fiscal year
2010 -11 is $78,075.
Amendment #3 to Cooperative Agreement for TMDLs
August 10, 2010
Page 3
Table 1. Adjusted Cost Shares Percentages and
Funding Obligation for Each Party
PARTY
Cost Share
Percentage
Cost Share
for FY 10/11
Costa Mesa
4.26%
$51,406
Irvine
24.24%
$292,509
Laguna Hills
0.54%
$6,516
Laguna Woods
0.90%
$10,860
Lake Forest
5.07%
$61,181
Newport Beach
6.47%
$78,075
Orange
0.89%
$10,740
Santa Ana
13.52%
$163,149
Tustin
5.92%
$71,438
County of Orange
3.82%
$46,097
Orange County Flow Control District
7.29%
$87,970
Irvine Ranch Water District
12.15%
$146,617
The Irvine Company
12.15%
$146,617
ENVIRONMENTAL REVIEW
The City Council's approval of this Agenda Item does not require environmental review.
PUBLIC NOTICE
This agenda item may be noticed according to the Brown Act (72 hours in advance of the
public meeting at which the City Council considers the item).
FUNDING AVAILABILITY
Funding for the City's TMDL (nutrient, fecal coliform and toxics) is included in the approved
FY 2010 -11 operation budget.
Prepared by: Submitted by:
Z b Stein Step en
Assistant City Engineer li
Attachment: Amendment No. 3 to Cooperative Agreement
adum
Director
Agreement No. D99-
AGREEMENT TO FUND NUTRIENT, FECAL COLIFORM AND TOXICS TOTAL MAXIMUM DAILY LOAD (TMDL)
STUDIES IN THE NEWPORT BAY WATERSHED
THIRD AMENDMENT AND FULL RESTATEMENT OF AGREEMENT
THIS THIRD AMENDMENT, for purposes of identification numbered D99 -128, is made
land entered into this day of , 2010 , by and between the County of
Orange ( "COUNTY "), the Orange County Flood Control District ( "DISTRICT "), the City of
Costa Mesa ( "COSTA MESA "), the City of Irvine ( "IRVINE "), the City of Laguna Hills
( "LAGUNA HILLS "), the City of Laguna Woods ( "LAGUNA WOODS "), the City of Lake Forest
( "LAKE FOREST "), the City of Newport Beach ( "NEWPORT BEACH "), the City of Orange
( "ORANGE "), the City of Santa Ana ( "SANTA ANA "), the City of Tustin ( "TUSTIN "), the
Irvine Ranch Water District ( "IRWD ") and The Irvine Company ( "TIC "), and Lennar Homes
of California, Inc.( "LENNAR "). The fourteen entities are hereinafter sometimes
jointly referred to as the "PARTIES" and individually as "PARTY ". The cities are
hereinafter sometimes jointly referred to as the "CITIES ". Thirteen entities (all
entities except for LENNAR) are sometimes jointly referred to as the "ORIGINAL
PARTIES."
WITNESSETH
WHEREAS, the California Regional Water Quality Control Board, Santa Ana Region
( "REGIONAL BOARD ") has adopted Resolution No. 98 -9, as amended by Resolution No. 98-
100 amending the Water Quality Control Plan for the Santa Ana River Basin to
incorporate a Nutrient TMDL for the Newport Bay /San Diego Creek Watershed on April I7,
1998 and Resolution 99 -10 amending the Water Quality Control Plan for the Santa Ana
River Basin to incorporate a TMDL for Fecal Coliform in Newport Bay on April 9, 1999
pursuant to the provisions of section 3O3(d) of the Clean Water Act; and,
WHEREAS, the United States Environmental Protection Agency (USEPA) has
established TMDLS for toxic pollutants, San Diego Creek and Newport Bay, California on
June 19, 2002, and the REGIONAL BOARD is developing implementation plans for each of
the toxic pollutants; and,
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Agreement No. D99 -12
WHEREAS, the adopted TMDLS contain requirements for studies, monitoring and the
development of programs to attain TMDL reduction targets over a multi -year period;
and,
WHEREAS, the ORIGINAL PARTIES entered into Agreement No. D99 -128 on
September 18, 2003, referred to hereinafter as "AGREEMENT ", to provide funding for the
Nutrient, Fecal Coliform and Toxics Total Maximum Daily Load (TMDL) studies in the
Newport Bay Watershed; and,
WHEREAS, the PARTIES approved Amendment No. 1 to AGREEMENT on July 5,
2006, which amended Sections 3 (Funding), 9 (Program Budgets and Costs), 5 (Payments),
10 (No Third Party Beneficiaries), and 16 (Notices), and Exhibits A and C in their
entirety and added the California Department of Transportation, LENNAR, Tustin Legacy
Community Partners, and Orange County Great Park Corporation as AGREEMENT
participants; and,
WHEREAS, the PARTIES approved Amendment No. 2 to AGREEMENT on March 29,
2008 to extend the term of the AGREEMENT for two (2) years to be consistent with the
end of the current phase of the Nitrogen and Selenium Management Program and to
recognize prior payments for services made directly by the California Department of
Transportation and IRWD, for work plan development and Bay algae studies respectively;
hand,
WHEREAS, pursuant to Section 6 of the AGREEMENT, the AGREEMENT may be amended in
writing only with the unanimous written approval of the PARTIES; and,
WHEREAS, Tustin Legacy Community Pa- -tners has terminated its development
agreement for the Tustin Marine Corps Air Station and withdrawn from the AGREEMENT
effective June 30, 2010; and,
WHEREAS, due to State budget constraints the California Department of
Transportation has withdrawn from the AGREEMENT effective June 30, 2010 and will
address its discharges independently; and
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Agreement No. D99 -12
WHEREAS, the Orange County Great Park Corporation has combined as a PARTY with
IRVINE effective June 30, 2010; and,
WHEREAS, the PARTIES desire to extend the AGREEMENT through June 30, 2012 to
provide for the performance of studies, monitoring and the development of programs
long -term funding to attain TMDL reduction targets over a multi -year period; and,
WHEREAS, in the event that long -term watershed funding is secured prior to
AGREEMENT expiration, the PARTIES intend to further amend the AGREEMENT to incorporate
this funding through revised cost share allocations; and,
WHEREAS, the PARTIES have revised the cost share allocations as shown in Exhibit
A, which shall remain fixed for the duration of the AGREEMENT term; and,
WHEREAS, the PARTIES now desire to amend and restate the AGREEMENT in its
entirety.
NOW THEREFORE: The PARTIES hereto unanimously agree to amend and restate the
AGREEMENT in its entirety as follows:
Section 1. PURPOSE. This AGREEMENT is entered into for the purpose of funding
and performing studies, research, monitoring and the development and implementation of
programs related to the adopted TMDLS for nutrients, fecal coliform and toxics in the
San Diego Creek and Newport Bay watersheds.
Section 2. TERM. The term of this AGREEMENT shall continue until June 30, 2012,
sunless sooner terminated as provided in Section S.
Section 3. FUNDING COST SHARE ALLOCATIONS. Exhibit A, which is attached to this
AGREEMENT and by this reference is made a part hereof, presens the cost share
lallocations for the PARTIES for the duration of the AGREEMENT.
Section 4. PROGRAM SCOPE OF WORK, BUDGET AND COSTS. The COUNTY shall work in
concert with all PARTIES to develop a scope of work and a budget for the following
fiscal year. The scope of work and budget for the upcoming fiscal year shall be
submitted to each of the PARTIES by Docember 15 of each year. The budget shall
contain an explanation of any recommended program changes, an estimate of all planned
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Agreement No. D99 -12
expenditures and an estimate of the payment required from each PARTY for the followin<
fiscal year.
The PARTIES shall be permitted to review and approve the program scope of work
and budget for the forthcoming year, review work products, and provide direction for
performance of the scope of work. Criterion for approval of the program scope of work
and budget shall be affirmative responses from all PARTIES. The COUNTY and DISTRICT
will constitute one approving PARTY. Any PARTY not providing a response by July 15 of
each year shall be considered an affirmative response.
The COUNTY shall be entitled to charge to the program all costs for direct
labor, materials, equipment and outside contract services for costs associated with
carrying out the approved scope of work. Recoverable costs will also include an
overhead charge.
Section 5. PAYMENTS. The COUNTY shall invoice each PARTY for its annual deposit
at the beginning (July 1) of each fiscal year. Each PARTY shall pay the deposit
within 45 calendar days of the date of the invoice. Each PARTY'S deposit shall be
based on its prorated share of the approved annual budget, reduced by the sum of (a)
its prorated share of any surplus identified in the prior fiscal year end accounting,
and (b) its prorated share of any funding provided for programs in the approved budget
from entities not party to this AMENDMENT.
Interest earned on the PARTIES' deposits will not be paid to the PARTIES, but
will be credited against the PARTIES' share of the program costs.
The COUNTY shall notify each of the PARTIES if it appears that costs may exceed
the budget approved by the PARTIES in any fiscal year. The COUNTY shall prepare a
fiscal year end accounting within 60 calendar days of the end of the fiscal year. If
the fiscal year end accounting results in costs (net of interest earnings) exceeding
the sum of the deposits, and the COUNTY has notified and obtained approval from the
PARTIES of potential cost overruns, the COUNTY shall seek approval of the excess cost
from the PARTIES in the form of a revised budget and, upon approval, shall invoice
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each PARTY for its prorated share of the excess cost up to the amount of the revised
approved budget. Each PARTY shall pay the billing within 45 calendar days of the date
of the invoice. If the fiscal year end accounting results in the sum of the deposits
exceeding costs (net of interest earnings), the excess deposits will carry forward to
reduce the billings for the following year. The fiscal year end accounting results
and associated invoices for each PARTY will take into consideration any outside
funding provided for programs in the approved budget from entities not party to this
AGREEMENT.
Upon termination of the program, a final accounting shall be performed by the
COUNTY. If costs remaining after the deduction of interest costs exceed the sum of
the deposits, the COUNTY shall invoice each PARTY for its prorated share of the
deficit. Each PARTY shall pay the invoice within 45 calendar days of the date of the
invoice. If the sum of the deposits, including interest, exceeds the costs, the
COUNTY shall reimburse to each PARTY its prorated share of the excess, within 45
calendar days of the final accounting.
Section 6. AMENDMENT. This AGREEMENT may be amended in writing only with the
lunan.imous written approval of the parties.
Section 7. LIABILITY. It is mutually understood and agreed that, merely by the
virtue of entering into this AGREEMENT, each PARTY neither relinquishes any rights nor
assumes any liabilities for its own actions or the actions of other PARTIES. It is
the intent of the PARTIES that the rights and liabilities of each Party shall remain
the same, while this AGREEMENT is in force, as it was before this AGREEMENT was made,
lexcept as otherwise specifically provided in this agreement.
Section 8. TERMINATION. Any PARTY wishing to terminate its participation in
this AGREEMENT shall so notify all other PARTIES in writing by March 1 of any year.
Such termination shall be effective the following June 30. The terminating PARTY
shall be responsible for financial. obligations hereunder to the extent incurred in
accordance with this agreement by the PARTY prior to the effective date of
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Agreement No. D99 -12f
termination. The balance of the PARTIES may continue in the performance of the terms
and conditions of this AGREEMENT on the basis of a revised allocation of cost based on
the funding formula in Exhibit A.
Section 9. AVAILABILITY OF FUNDS. The obligation of each PARTY is subject to
the availability of funds appropriated for this purpose, and nothing herein shall be
construed as obligating the PARTIES to expend or as involving the PARTIES in any
contract or other obligation for the future payment of money in excess of
appropriations authorized by law.
Section 10. NO THIRD PARTY BENEFICIARIES. Nothing expressed or mentioned in this
AGREEMENT is intended or shall be construed to give any person, other than the PARTIES
hereto and any entity in which a PARTY has a legal interest (such as, but not limited
to, a limited liability membership interest or a partnership interest), and any
permitted successors or assigns of a PARTY, any legal or equitable right, remedy or
claim under or in respect of this AGREEMENT or any provisions herein contained. This
AGREEMENT and any conditions and provisions hereof is intended to be and is for the
sole and exclusive benefit of the PARTIES and the entities in which they have a legal
interest and their successors or assigns and for the benefit of no other person,
agency or entity.
Section 11. REFERENCE TO CALENDAR DAYS. Any reference to the word "day" or
"days" herein shall mean calendar day or calendar days, respectively, unless otherwise
expressly provided.
Section 12. ATTORNEYS FEES. In any action or proceeding brought to enforce or
interpret any provision of this AGREEMENT, or where any provision hereof is asserted
as a defense, each PARTY shall bear its own attorneys' fees and costs.
Section 13. ENTIRE AGREEMENT. This AGREEMENT is intended by the PARTIES as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the PARTIES hereto in respect of the
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Agreement No. D99 -12
subject matter contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein. This AGREEMENT
supersedes all prior agreements and understandings between the PARTIES with respect to
such matter.
Section 14. SEVERABILITY. If any part of this AGREEMENT is held, determined or
adjudicated to be illegal, void, or unenforceable by a court of competent
jurisdiction, the remainder of this AGREEMENT shall be given effect to the fullest
extent reasonably possible.
Section 15, SUCCESSORS AND ASSIGNS. The terms and provisions of this AGREEMENT
shall be binding upon and inure to the benefit of the PARTIES hereto and their
successors and assigns.
Section 16. NOTICES. All notices required or desired to be given under this
AGREEMENT as amended shall be in writing and (a) delivered personally, or (b) sent by
certified mail, return receipt requested or (c) sent by telefacsimile communication
followed by a mailed copy, to the addresses specified below, provided each PARTY may
change the address for notices by giving the other PARTIES at least ten (10) days
written notice of the new address. Notices shall be deemed received when actually
received in the office of the addressee or when delivery is refused, as shown on the
receipt of the U.S. Postal service, or other person making the delivery, except that
notices sent by telefacsimile communicaticn shall be deemed received on the first
(business day following transmission.
Director of Public Services
City of Costa Mesa
P.O. Box 1200
Costa Mesa, CA 92628 -1200
Facsimile: (714) 754 -5028
Director of Public Works
City of Irvine
P.O. Box 19578
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Irvine, CA 92623 -9578
Facsimile: (949) 724 -6440
Director of Public Services
City of Laguna Hills
24035 El Toro Road
Laguna Hills, CA 92653
Facsimile: (949) 707 -2633
Director of Community Development
City of Laguna Woods
24264 El Toro Road
Laguna Woods CA 92637
Facsimile: (949) 639 -0591
Director of Public Works
City of Lake Forest
25550 Commercentre Dr. Ste 100
Lake Forest, CA 92630
Facsimile: (949) 461 -3511
Director of Public Works
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92658
Facsimile: (949) 718 -1840
Director of Public Works
City of Orange
300 E. Chapman Ave
Orange, CA 92866
Facsimile: (714) 744 -5573
Director of Public Works
City of Santa Aria
101 W. 4'h St.
Santa Ana, CA 92701
Facsimile: (714) 64`/ -5635
Director of Public Works
City of Tustin
300 Centennial Way
Tustin, CA 92'780
Facsimile: (714) 734 -8991
Director, OC Public Works
County of Orange
300 N. Flower Street
Santa Ana, CA 92702 -4048
Facsimile: (714) 834 -2395
Director, Water Quality
Irvine Ranch Water District
3512 Michelson Dr
Irvine, CA 92712
Facsimile: (949) 453 -1228
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Agreement No. D99-
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Vice President of Environmental Affairs
The Irvine Company
550 Newport Center
Newport Beach, CA 92658 -8904
Facsimile: (949) 720 -2448
Five Point Communities (Lennar)
Jim Werkmeister
Manager, Environmental Affairs
25 Enterprise, Ste 400
Aliso Viejo, CA 92656
Facsimile: (949)
Section 17. STATUS OF ORIGINAL AGREEMENT. Upon approval of this AGREEMENT by
all PARTIES, the original agreement of September 18, 2003, as amended on July 5, 2006
and March 29, 2008 will be superseded by this AGREEMENT.
Section 18. EXECUTION OF AGREEMENT. This AGREEMENT may be executed in
counterpart and the signed counterparts shall constitute a single instrument.
Section 19. 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
interpret this AGREEMENT, the sole and exclusive venue shall be a court of competent
jurisdiction located in Orange County, California, and the PARTIES hereto agree to and
do hereby submit to the jurisdiction of such court, notwithstanding Code of Civil
Procedure section 394. Furthermore, the PARTIES have specifically agreed, as part of
the consideration given and received for entering into this AGREEMENT, to waive any
and all rights to request that an action be transferred for trial to another county
under Code of Civil Procedure Section 394 or any other provision of law.
IN WITNESS WHEREOF, the PARTIES hereto have executed this AGREEMENT the day and
year first above written:
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Agreement No. D99-
COUNTY OF ORANGE,
a political subdivision of the State of
California
Date: By:
Chairman of the Board of Supervisors
ORANGE COUNTY FLOOD CONTROL DISTRICT
a body corporate and politic
By:
APPROVED AS TO FORM:
COUNTY COUNSEL
By:
Geoffrey K. Hunt, Deputy
Date:
SIGNED AND CERTIFIED THAT A COPY OF
THIS AGREEMENT HAS BEEN DELIVERED TO
THE CHAIRMAN OF THE BOARD
By:
DARLFNE J. BLOOM
Clerk of the Beard of Supervisors of
Orange County, California
Date:
Chairman of the Board of Supervisors
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IDate:
(APPROVED AS TO FORM:
IATTEST:
City Clerk
Agreement No. D99 -12
CITY OF COSTA MESA
By:
Mayor
City Attorney of Costa Mesa
11
Final Version 7/
Date:
APPROVED AS TO FORM:
ATTEST:
City Clerk
CITY OF IRVINE
By:
Mayor
City Attorney of Irvine
12
Agreement No. D99 -12;
Final version 7/6/201(
Date:
APPROVED AS TO FORM:
ATTEST:
City Clerk
CITY OF LAGUNA HILLS
By:
Mayor
City Attorney of Laguna Hills
13
Agreement No. D99 -12
Final Version 7/
Date:
APPROVED AS TO FORM:
ATTEST:
City Clerk
CITY OF LAGUNA WOODS
By:
Mayor
City Attorney of Laguna Woods
14
Agreement No. D99 -12
Final Version 7/8/2
Date:
APPROVED AS TO FORM:
ATTEST:
City Clerk
CITY OF LAKE FOREST
Hy:
Mayor
City Attorney of Lake Forest
15
Agreement No. D99 -12
Final Version 7/8/201C
Date:
APPROVED AS TO FORM:
ATTEST:
City Clerk
Agreement No. D99 -12
CITY OF NEWPORT BEACH
By:
Mayor
/ Gam/
Ax ity orney cil me wport Beach
e� I
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Agreement No. D99 -128
CITY OF NEWPORT BEACH
t Date: By:
Mayor
APPROVED AS TO FORM:
ATTEST:
City Clerk
City Attorney of Newport Beach
Final Version 7/8/201
Date:
APPROVED AS TO FORM:
ATTEST:
City Clerk
CITY OF ORANGE
By:
Mayor
City Attorney of Orange
17
Agreement No. D99-
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Agreement No. D99 -128
CITY OF SANTA ANA
Date: By:
Mayor
APPROVED AS TO FORM:
ATTEST:
City Clerk
City Attorney of Santa Ana
Im
Final Version 7/8/201C
Date:
APPROVED AS TO FORM:
ATTEST:
City Clerk
CITY OF TUSTIN
By
Mayor
City Attorney of Tustin
19
Agreement No. D99 -12
Final Version 7
Date:
Date
Agreement No. D99 -12
THE IRVINE RANCH WATER DISTRICT
By:
By:
Name:
Title:
Name:
Title:
20
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Date:
Date:
THE IRVINE COMPANY
By:
Name:
Title:
By:
Name:_
Title:
21
Agreement No. D99 -12
Final Version 7/8
Date:
Date:
Agreement No. D99-
Lennar Homes of California,
a Developer Member of Heritage Fields Limited
Liability Company
By
Name
Title:
By:
Name:
Title:
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EXHIBIT A
Costa Mesa
4.26%
Irvine
24.24%
Laguna Hills
0.54%
Laguna Woods
0.90%
Lake Forest
5.07 %%
Newport Beach
6.47%
Orange
0.89 %%
Santa Ana
13.52%
Tustin
5.92%
County of Orange
3.82%
OCFCD
7.29%
IRWD
12.15%
TIC
12.15%
Lennar
2.76%
TOTAL
23
100.00%
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Amendment No. 2 to Agreement No.D99 -12E
1 AMENDMENT NO. 2
AGREEMENT TO FUND NUTRIENT, FECAL COLIFORM AND TOXICS TOTAL MAXIMUM DAILY LOAD (TMDL)
2 STUDIES IN THE NEWPORT BAY WATERSHED
3 THIS AMENDMENT, for purposes of identification numbered Amendment No. 2 to
4 Agreement No. D99 -128, is made and entered into this day of 4 /4t, 2009, by
5 and between the County of Orange ( "COUNTY"), the Orange County Flood Control District
6 ( "DISTRICT ") , the City of Costa Mesa ( "COSTA MESA ") , the City of Irvine ( "IRVINE ") ,
7 the City of Laguna Hills ( "LAGUNA HILLS "), the City of Laguna Woods ( "LAGUNA WOODS "),
the City of Lake Forest ( "LAKE FOREST "), the City of Newport Beach ( "NEWPORT BEACH "),
8
the City of Orange ( "ORANGE "), the City of Santa Ana ( "SANTA ANA "), the City of Tustin
9
( "TUSTIN ") , the Irvine Ranch Water District ( "IRWD ") , The Irvine Company ( "TIC ") , the
10
California Department of Transportation ( "CALTRANS "), Tustin Legacy Community Partners
11 (..TLCP "), Lennar Homes of California, Inc.( "LENNAR "), and Orange County Great Park
12 Corporation ( "GPC ") . The seventeen entities are hereinafter sometimes jointly
13 referred to as the "PARTIES" and individually as "PARTY ". The cities are hereinafter
14 sometimes jointly referred to as the "CITIES ". Thirteen entities (all entities except
15 for CALTRANS, TLCP, LENNAR, and GPC) are sometimes jointly referred to as the
"ORIGINAL PARTIES."
16
WITNESSETH
17
WHEREAS, the ORIGINAL PARTIES entered into Agreement No. D99 -128 on
18
September 18, 2003, referred to hereinafter as "AGREEMENT ", to provide funding for the
19 Nutrient, Fecal Coliform and Toxics Total Maximum Daily Load (TMDL) studies in the
20 Newport Bay Watershed; and,
21 WHEREAS, the PARTIES approved Amendment 1 to Agreement No. D99 -128 on July
22 5, 2006, which amended Section 3 (Funding), Section 4 (Program Budgets and Costs),
23 Section 5 (Payments), Section 10 (No Third Party Beneficiaries), Section 16 (Notices),
24 Exhibit A, and Exhibit C of the AGREEMENT in their entirety and added CALTRANS, TLCP,
LENNAR, and GPC as AGREEMENT participants; and,
25
WHEREAS, according to Section 6 of the AGREEMENT, the AGREEMENT may be
26
amended in writing only with the unanimous written approval of the PARTIES; and,
1
Amendment No. 2 to Agreement No.D99 -12E
1 WHEREAS, the PARTIES desire to extend the term of the AGREEMENT for two
2 (2) years to be consistent with the end of the current phase of the Nitrogen and
3 Selenium Management Program and to recognize prior payments for services made directly
by CALTRANS and IRWD, for work plan development and Bay algae studies respectively, as
4
credits in the 2008 -09 program budget.
5
NOW, THEREFORE, in consideration of the foregoing, it is agreed by and
6
between the PARTIES hereto that the AGREEMENT shall be amended as follows:
7 Section 1. Each and all of the provisions of the AGREEMENT remains in
8 full force and effect, except that all references to Resources and Development
9 Management Department or RDMD shall be amended to OC Public Works and Section 2 and
10 Section 4 are amended in their entirety, as follows:
11 Section 2. Section 2 of the AGREEMENT, entitled "TERM ", shall be amended
to read in full as follows: The term of this AGREEMENT is extended for a two -year
12
period, commencing on July 1, 2008 and continuing to and including June 30, 2010,
13
unless sooner terminated as provided in Section 8.
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Section 4. Section 4 of the AGREEMENT, entitled "PROGRAM BUDGET AND COSTS"
15 shall be amended to read in full as follows: The COUNTY shall submit a scope of work
16 and a budget for the following fiscal year to each of the PARTIES by February 15 of
17 each year. The budget shall contain an explanation of any recommended program
18 changes, an estimate of all planned expenditures and an estimate of the payment
19 required from each PARTY for the following fiscal year. For the State of California
20 budgeting requirements, CALTRANS' contribution shall not exceed $150,000 or five
percent (5.01;) of the total budget costs, whichever is less, for each fiscal year
21
during the term of the AGREEMENT. If CALTRANS contribution would be greater than
22
$150,000 for a given fiscal year, the amount over $150,000 ( "EXCESS AMOUNT") shall be
23 cost- shared as described in Section 2 of AMENDMENT 1, with the exception that for such
24 EXCESS AMOUNT, the ORIGINAL COST ALLOCATION shall be ninety -three percent (93 %) and
25 CALTRANS contribution shall be zero percent (0W).
26 The PARTIES shall be permitted to review and approve the program scope of
work and budget for the forthcoming year. Criteria for approval shall be affirmative
2
Amendment No. 2 to Agreement No.D99 -12£
1 written responses from all of the PARTIES. The COUNTY and DISTRICT will constitute
2 one approving PARTY.
3 The tasks and expenditures for each fiscal year will be presented and
4 calculated as shown in Exhibit C, which is attached hereto and made a part hereof.
All tasks and expenditures will be updated each fiscal year as part of the budget
5
approval process. Therefore, Exhibit C as attached is a form to be completed every
6
year. The COUNTY shall be entitled to charge to the program all costs for direct
7 labor, materials, equipment and outside contract services for costs associated with
8 carrying out the approved scope of work. Recoverable costs will also include an
9 overhead charge calculated by the County Auditor - Controller which includes OC Public
10 Works overhead and County -wide cost allocation plan.
11 CALTRANS and IRWD will receive credits of $75,000 and $6,932.BB
12 respectively in the fiscal year 2008 -09 program budget for prior payments for services
related to the AGREEMENT.
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IN WITNESS WHEREOF, the PARTIES hereto have executed this AGREEMENT the
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day and year first above written:
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Amendmen_ No. 2 to Agreement No.D99-12E
1 COUNTY OF ORANGE,
a political subdivision of the State of
2 California
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Date: �7- -Oo By:
4 Bryan p egle, ire r, OC Public Works
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APPROVED AS TO FORM:
7 COUNTY COUNSEL
8 By:966VW'I�(?
9 Punam P. Prahalad, Deputy
10 Date. (Q
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Date:
APPROVED AS TO FORM:
ATTEST:
Amendment No. 2 to Agreement No.D99-12i
CITY OF COSTA MESA
By:_
Mayor
City erk City Attorney of Costa Mesa
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Date: 910/08
APPROVED AS TO FORM:
ATTEST:
CITY CLERK OF THE CITY OF IRVINE
CITY OF IRVINE
By:
_ � ( q�T�
MAYOR OF THE CITY OF IRVINE
CITY A
Xb
F THE CITY OF IRVINE
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Date: 3" X (J'-�
ATTEST:
ipt.
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Amendment No. 2 to Agreement No.D99-12£
CITY OF LAGUNA HILLS
ro 0- A,
B
A an Songst d, Jr Mayo
APPROVED AS TO FORM:
'�t-on6 - — I
Gregory E. Simon an, City Attorney
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Amendmei— No. 2 to Agreement No.D99-12£
CITY OF LAGUNA WOODS
By:: )
hyo r
KKveoP
City to ney of Laguna Woods
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ATTEST:
City Cl e. -
Amendmen lo. 2 to Agreement No.D99-12E
CITY OF LAKE FOREST
By:
Ma,or
i
City Attorney of Lake Forest
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City Clerk
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By:
Amendment No. 2 to Agreement No.D99-12
City Attorney of Newport Beach
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ATTEST:
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Amendment No. 2 to Agreement No.D99-12£
CITY OF ORANGE
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Amendmen No. 2 to Agreement No.D99-12E
CITY OF SANTA ANA
Date:
.By.: OOkW,
City Manager
APPROVED AS TO FORM:
ATTEST:
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10 City Clerk
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C' y Attorney of Sa to Ana
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Amendment No. 2 to Agreement No.D99-12£
CITY OF TUSTIN
,%
L,clictyAttorney of usti
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APPROVED AS TO FORM:
Date: 3-2-7 0
Amendment No. 2 to Agreement No.D99-12£
IRVINE RANCH WATER DISTRICT
B y Z4.
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/`8X Paul D. Jones II
General Manager
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Jo a Arneson
Di trict Counsel
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AmendmE No. 2 to Agreement No.D99-12£
THE IRVINE COMPANY
By:
Name: Satoru Ta ibuchi
Title: Vice President
By:
Name: Floy E. Andrews
Title: Assistant Secretary
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Amendment No. 2 to Agreement No.D99-12E
CALIFORNIA DEPARTMENT OF TRANSPORTATION
Date: �' C)� By: ve—_
Nam /?
Tit Ui1 Sr�Ls� t c�p(G�l�l1�"
Date: By:
Name:
Title:
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Amendment No. 2 to Agreement No.D99-12F
1
TUSTIN LEGACY COMMUNITY PARTNERS, LLC
a Delaware limited liability company
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Date: jA,t.�Q �� , �i�� By:
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Ken Nishikawa
VP Shea Properties,
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Director of Engineering
Tustin Legacy Community Partners, LLC
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Date: By:
Name:
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Title:
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Date: July 8, 2008
Date: July 8, 2008
Amendment No. 2 to Agreement No.D99-12E
Lennar Homes of California,
a Developer Member of Heritage Fields El Toro,
Limited Liability Company
By:
e: James Werkmeister
Title: Environmental Affairs Manager
By:
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Date:
Amendmen lo. 2 to Agreement No.D99-12£
GREAT PARK CORPORATION,
a California non-profit organization
By :
Xe: %J/I1G1-f/46L 0, L �Z
Title:Q - Chief Executive Officer
M
Name:
Title:
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r
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
L -3��
Agenda Item No.4 _
March 24, 2009
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: City Manager's Office
Dave Kiff, Assistant City Manager
9491644 -3002 or dkiff @city.newport- beach.ca.us
SUBJECT: Amendment #2 to a Cooperative Agreement for the Administration of
Total Maximum Daily Loads (TMDLs) in Newport Bay
ISSUE:
Should the City of Newport Beach agree to amend an existing Cooperative Agreement
for water quality in the Newport Bay Watershed to extend its term?
RECOMMENDATION:
Authorize the Mayor to sign and execute Amendment #2 to the 2003 Cooperative
Agreement to fund Nutrient, Fecal Coliform and Toxics Total Maximum Daily Load
(TMDL) Studies & Programs in the Newport Bay Watershed.
DISCUSSION:
Newport Bay is an impaired water body per §303(d) of the federal Clean Water Act. As
such, the US Environmental Protection Agency (US EPA) and the State Water
Resources Control Board (SWRCB) via the California Regional Water Quality Control
Board, Santa Ana Region (Regional Board) is directed to prepare clean up plans --
called "Total Maximum Daily Loads" (TMDLs) -- for the Bay. TMDLs attempt to
eliminate water quality impairments within a certain amount of time. Newport Bay is
listed on the §303(d) List for the following substances:
• Sediment
• Nutrients
• Metals
• Fecal Coliform Bacteria
• Toxic Pollutants
The adopted TMDLs contain requirements for studies, monitoring and the development
of programs to attain TMDL contaminant reduction targets over a multi -year period.
Additionally, the requirements of the TMDLs are incorporated into the National Pollutant
Discharge Elimination System (NPDES) Municipal Separate Storm Sewer System
(MS4) Permit.
Amendment #2 to Ci rative Agreement for TMDLs
March 24, 2009
Page 2
While Newport Bay is wholly within the city limits of Newport Beach, the Newport Bay
watershed includes more than 150 square miles of territory. Because the Bay's
impairments involve pollutants from throughout the watershed, the duty to adhere to the
TMDLs applies to many of the entities within the watershed, including:
• The County of Orange;
• The Orange County Flood Control District;
• The Irvine Ranch Water District (IRWD);
• California Department of Transportation (Caltrans);
• Tustin Legacy Community Partners;
• Lennar Homes of California;
• The Great Park Corporation;
• The Irvine Company; and
• The cities of Costa Mesa, Irvine, Laguna Hills, Laguna Woods, Lake Forest,
Newport Beach, Orange, Santa Ana, and Tustin ( "watershed cities ").
Each of the parties listed above cooperates -- via a Cooperative Agreement (formally
executed by all of the parties in September 2003 and amended in 2006 and which went
to your Council on June 24, 2003 and June 26, 2006, respectively) -- to implement and
administer the obligations of the TMDLs through at least 2010. The parties developed
the Agreement to provide a long -term funding formula to ensure that the costs of
compliance with the TMDLs are shared equitably among the parties within the Newport
Bay /San Diego Creek watershed.
Additional Background:
Amendment No. 1 was executed on July 5, 2006 and added four new cost share parties:
• The California Department of Transportation (Caltrans)
• Tustin Legacy Community Partners
• Lennar, and
• The Great Park Corporation.
As a result, the current cost -share formula is on the next page (Table #1).
The purpose of Amendment No. 2 is to extend the term of the agreement for two years
(through June 30, 2010), and to recognize prior payments for services made directly by
Caltrans ($75,000) and IRWD ($6,932.88) for work plan development and bay algae
studies respectively, as credits in the 2008 -2009 program budget. No other changes to
the agreement are proposed at this time.
Amendment #2 to Cooperative Agreement for TMDLs
March 24, 2009
Page 3
Table #1
Environmental Review: The City Council's approval of this Agenda Item does not
require environmental review.
Public Notice: This agenda item may be noticed according to the Brown Act (72 hours
in advance of the public meeting at which the City Council considers the item).
Funding Availability: The City's TMDL obligations for FY 2008 -09 are $141,269 and
were included in the approved FY 2008 -09 budget.
Submitted by:
3L�� C,
Dave Ki
Assistant City Manager
Attachments: Amendment No. 2 to Cooperative Agreement
Amendment No. 1 to Cooperative Agreement
Cooperative Agreement
J
Cooperative TMDL
.
00.
Total Cost Share
Program Participants
2008 -09
Budget
88.00%
Costa Mesa
75%
4.43%
$ 93,332
Irvine
24.77%
$ 521,958
Laguna Hills
0.55%
$ 11,660
Laguna Woods
0.92%
$ 19,419
Lake Forest
5.26%
$ 110,926
Newport Beach
6.70%
$ 141,269
Orange
0.92%
$ 19,414
Santa Ana
14.12%
$ 297,510
Tustin
5.97%
$ 125,840
County of Orange
3.84%
$ 80,894
OC Flood Control District
7.50%
$ 158,025
The Irvine Company
12.50%
$ 263,414
IRWD
12.50%
$ 255,576
5%
Caltrans
$ 40,722
2%
The Great Park Corporation
$ 47,867
2.50%
Lennar Homes
$ 59,834
2.50%
Tustin Legacy Partners
$ 59,834
Total Budget for FY 2008 -09
$ 2,307,494
Environmental Review: The City Council's approval of this Agenda Item does not
require environmental review.
Public Notice: This agenda item may be noticed according to the Brown Act (72 hours
in advance of the public meeting at which the City Council considers the item).
Funding Availability: The City's TMDL obligations for FY 2008 -09 are $141,269 and
were included in the approved FY 2008 -09 budget.
Submitted by:
3L�� C,
Dave Ki
Assistant City Manager
Attachments: Amendment No. 2 to Cooperative Agreement
Amendment No. 1 to Cooperative Agreement
Cooperative Agreement
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Amendment No. 2 to Agreement No.D99 -12
AMENDMENT NO. 2
AGREEMENT TO FUND NUTRIENT, FECAL COLIFORM AND TOXICS TOTAL MAXIMUM DAILY LOAD (TMDL)
STUDIES IN THE NEWPORT BAY WATERSHED
THIS AMENDMENT, for purposes of identification numbered Amendment No. 2 t
Agreement No. 099 -128, is made and entered into this day of , 2009, by
and between the County of Orange ( "COUNTY "), the Orange County Flood Control District
( "DISTRICT "), the City of Costa Mesa ( "COSTA MESA "), the City of Irvine ( "IRVINE "),
the City of Laguna Hills ( "LAGUNA HILLS "), the City of Laguna Woods ( "LAGUNA WOODS "),
the City of Lake Forest ( "LAKE FOREST "), the City of Newport Beach ( "NEWPORT BEACH "),
the City of Orange ( "ORANGE "), the City of Santa Ana ( "SANTA ANA "), the City of Tustin
( "TUSTIN "), the Irvine Ranch Water District ( "IRWD "), The Irvine Company ( "TIC"), the
California Department of Transportation ( "CALTRANS "), Tustin Legacy Community Partners
( "TLCP "), Lennar Homes of California, Inc.( "LENNAR "), and Orange County Great Park
Corporation ( "GPC "). The seventeen entities are hereinafter sometimes jointly
referred to as the "PARTIES" and individually as "PARTY". The cities are hereinafter
sometimes jointly referred to as the "CITIES ". Thirteen entities (all entities except
for CALTRANS, TLCP, LENNAR, and GPC) are sometimes jointly referred to as the
"ORIGINAL PARTIES."
WHEREAS, the ORIGINAL PARTIES entered into Agreement No. D99 -128 on
September 18, 2003, referred to hereinafter as "AGREEMENT ", to provide funding for
Nutrient, Fecal Coliform and Toxics Total Maximum Daily Load (TMDL) studies in the
Newport Bay Watershed; and,
WHEREAS, the PARTIES approved Amendment 1 to Agreement No. D99 -128 on Jul
5, 2006, which amended Section 3 (Funding), Section 4 (Program Budgets and Costs),
Section 5 (Payments), Section 10 (No Third Party Beneficiaries), Section 16 (Notices),
Exhibit A, and Exhibit C of the AGREEMENT in their entirety and added CALTRANS, TLCP,
LENNAR, and GPC as AGREEMENT participants; and,
WHEREAS, according to Section 6 of the AGREEMENT, the AGREEMENT may be
amended in writing only with the unanimous written approval of the PARTIES; and,
1
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Amendment No. 2 to Agreement No.D99 -12£
1 WHEREAS, the PARTIES desire to extend the term of the AGREEMENT for two
2 (2) years to be consistent with the end of the current phase of the Nitrogen and
3 Selenium Management Program and to recognize prior payments for services made directly
4 by CALTRANS and IRWD, for work plan development and Bay algae studies respectively, as
credits in the 2008 -09 program budget.
5
NOW, THEREFORE, in consideration of the foregoing, it is agreed by and
6
between the PARTIES hereto that the AGREEMENT shall be amended as follows:
7 Section 1. Each and all of the provisions of the AGREEMENT remains in
6 full force and effect, except that all references to Resources and Development
9 Management Department or RDMD shall be amended to OC Public Works and Section 2 and
10 Section 4 are amended in their entirety, as follows:
11 Section 2. Section 2 of the AGREEMENT, entitled "TERM ", shall be amended
12 to read in full as follows: The term of this AGREEMENT is extended for a two -year
period, commencing on July 1, 2008 and continuing to and including June 30, 2010,
13
unless sooner terminated as provided in Section 8.
14
Section 4. Section 4 of the AGREEMENT, entitled "PROGRAM BUDGET AND COSTS"
15 shall be amended to read in full as follows: The COUNTY shall submit a scope of work
16 and a budget for the following fiscal year to each of the PARTIES by February 15 of
17 each year. The budget shall contain an explanation of any recommended program
18 changes, an estimate of all planned expenditures and an estimate of the payment
19 required from each PARTY for the following fiscal year. For the State of California
20 budgeting requirements, CALTRANS' contribution shall not exceed $150,000 or five
21 percent (5.0 %) of the total budget costs, whichever is less, for each fiscal year
during the term of the AGREEMENT. If CALTRANS contribution would be greater than
22
$150,000 for a given fiscal year, the amount over $150,000 ( "EXCESS AMOUNT ") shall be
23
cost - shared as described in Section 2 of AMENDMENT 1, with the exception that for such
24 EXCESS AMOUNT, the ORIGINAL COST ALLOCATION shall be ninety -three percent (93 %) and
25 CALTRANS contribution shall be zero percent (0 %).
26 The PARTIES shall be permitted to review and approve the program scope of
work and budget for the forthcoming year. Criteria for approval shall be affirmative
2
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Amendment No. 2 to Agreement No.D99 -12F
1 written responses from all of the PARTIES. The COUNTY and DISTRICT will constitute
2 one approving PARTY.
3 The tasks and expenditures for each fiscal year will be presented and
4 calculated as shown in Exhibit C, which is attached hereto and made a part hereof.
All tasks and expenditures will be updated each fiscal year as part of the budget
5
approval process. Therefore, Exhibit C as attached is a form to be completed every
6
year. The COUNTY shall be entitled to charge to the program all costs for direct
7 labor, materials, equipment and outside contract services for costs associated with
8 carrying out the approved scope of work. Recoverable costs will also include an
9 overhead charge calculated by the County Auditor - Controller which includes OC Public
10 Works overhead and County -wide cost allocation plan.
11 CALTRANS and IRWD will receive credits of $75,000 and $6,932.88
12 respectively in the fiscal year 2008 -09 program budget for prior payments for services
related to the AGREEMENT.
13
IN WITNESS WHEREOF, the PARTIES hereto have executed this AGREEMENT the
14
day and year first above written:
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Amendment No. 2 to Agreement No.D99 -1
COUNTY OF ORANGE,
a political subdivision of the State of
California
(Date: By:
Bryan Speegle, Director, OC Public Works
APPROVED AS TO FORM:
COUNTY COUNSEL
.
IBy
1 Punam P. Prahalad, Deputy
IDate:
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APPROVED AS TO FORM:
ATTEST:
City Clerk
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Amendment No. 2 to Agreement No.D99 -128
CITY OF COSTA MESA
Sy:
Mayor
City Attorney of Costa Mesa
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I Date:
(APPROVED AS TO FORM:
(ATTEST:
City Clerk
• •
Amendment No. 2 to Agreement No.D99 -121
CITY OF IRVINE
By:
Mayor
City Attorney of Irvine
R,
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APPROVED AS TO FORM:
ATTEST:
City Clerk
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Amendment No. 2 to Agreement No.
CITY OF LAGUNA HILLS
By:
Mayor
City Attorney of Laguna Hills
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]Date:
APPROVED AS TO FORM:
]ATTEST:
City Clerk
Amendment No. 2 to Agreement No.
CITY OF LAGUNA WOODS
By:
Mayor
City Attorney of Laguna Woods
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JAPPROVED AS TO FORM:
FATTEST:
City Clerk
Amendment No. 2 to Agreement No.D99 -121
CITY OF LAKE FOREST
By:
Mayor
City Attorney of Lake Forest
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IDate
JAPPROVED AS TO FORM:
FATTEST:
(City Clerk
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Amendment No. 2 to Agreement No.D99-
CITY OF NEWPORT BEACH
By:
Mayor
City Attorney of Newport Beach
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APPROVED AS TO FORM:
ATTEST:
City Clerk
Amendment No. 2 to Agreement No.
CITY OF ORANGE
By:
Mayor
City Attorney of Orange
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APPROVED AS TO FORM:
ATTEST:
City Clerk
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Amendment No. 2 to Agreement No.D99 -12
CITY OF SANTA ANA
Sy:
Mayor
City Attorney of Santa Ana
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Date:
APPROVED AS TO FORM:
ATTEST:
City Clerk
• •
Amendment No. 2 to Agreement No.D99 -12E
CITY OF TUSTIN
By:
Mayor
City Attorney of Tustin
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IDate:
IDate:
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Amendment No. 2 to Agreement No.D99 -12f
THE IRVINE RANCH WATER DISTRICT
By:
By:
Name:
Title:
Name:
Title:
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Date:
Amendment No. 2 to Agreement No.D99 -12E
THE IRVINE COMPANY
By:
Name:
Title:
By:
Name-
Title:
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Amendment No. 2 to Agreement No.D99-
CALIFORNIA DEPARTMENT OF TRANSPORTATION
Date: By:
Date:
By:
Name:
Title:
Name:
Title:
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Amendment No. 2 to Agreement No.D99 -12£
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TUSTIN LEGACY COMMUNITY PARTNERS, LLC
a Delaware limited liability company
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Ken Nishikawa
VP Shea Properties,
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Director of Engineering
Tustin Legacy Community Partners, LLC
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Date: By:
Name:
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Title:
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Date:
IDate:
Amendment No. 2 to Agreement No.
Lennar Homes of California,
a Developer Member of Heritage Fields Limited
Liability Company
By:
Name:
Title:
By:
Name:
Title:
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Date:
Amendment No. 2 to Agreement No.D99 -12£
GREAT PARK CORPORATION,
a California non - profit organization
By:
Name-
Title:
By:
Name
Title:
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AmendmentQ0. 1 to Agreement No.
AMENDMENT NO. 1
AGREEMENT TO FUND NUTRIENT, FECAL COLIFORM AND TOXICS TOTAL MAXIMUM DAILY LOAD (TMDL)!
STUDIES IN THE NEWPORT BAY WATERSHED
THIS AMENDMENT, for purposes of identification numbered Amendment No. 1 to
Agreement No. D99 -128, is made and entered into this '54\- day of QAnL , 2006
( "AMENDMENT "), by and between the County of Orange ("COUNTY "), the Orange County Flood
Control District ( "DISTRICT "), the City of Costa Mesa ( "COSTA MESA "), the City of
Irvine ( "IRVINE "), the City of Laguna Hills .( "LAGUNA HILLS "), the City of Laguna Woods
( "LAGUNA WOODS "), the City of Lake Forest ("LAKE FOREST "), the City of Newport Beach
( "NEWPORT BEACH"), the City of Orange ( "ORANGE "), the City of Santa Ana ("SANTA ANA "),
the City of Tustin ( "TUSTIN "), the Irvine Ranch Water District ( "IRWD "), The Irvine
Company ( "TIC "), the California Department of Transportation ( "CALTRANS "), Tustin
Legacy Community Partners ( "TLCP "), Lennar Homes of California, Inc.( "LENNAR "), an¢
Orange County Great Park Corporation ( "GPC "). The seventeen entities are hereinafter
sometimes jointly referred to as the "PARTIES" and individually as "PARTY ". The citie
are hereinafter sometimes jointly referred to as,the "CITIES ". Thirteen entities (alli
entities except for CALTRANS,. TLCP, LENNAR, and GPC) are sometimes jointly referred to
las the "ORIGINAL PARTIES."
WITNESSETH
WHEREAS, the ORIGINAL PARTIES entered into Agreement No. D99 -128 on
September 18, 2003, referred to hereinafter as "AGREEMENT ", to provide funding for the
Nutrient, Fecal Coliform and Toxics Total Maximum Daily Load (TMDL) studies in the
Newport Bay Watershed; and,
WHEREAS, according to Section 6 of the AGREEMENT, the AGREEMENT maybe
amended in writing only with the unanimous written approval of the ORIGINAL PARTIES;
(and,
WHEREAS, the ORIGINAL PARTIES agree to amend the AGREEMENT to add.
ICALTRANS, TLCP, LENNAR and GPC as PARTIES to the AGREEMENT; and,
WHEREAS, the PARTIES have reached agreement on a new funding formula,
(which states that (1) CALTRANS will contribute a fixed five percent (5.0 %) of the
1
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Amendmen No. 1 to Agreement No.D99 -128
1 11total budget cost, (2) TLCP will contribute a fixed two and one half percent (2.5 %) of
2 1Ithe total budget cost, (3) LENNAR will contribute a fixed two and one half percent
3 11(2.5%) of the total budget cost, (4) GPC will contribute a fixed two percent (2.0 %) of
4 the total budget cost, and (5) the ORIGINAL PARTIES will cost -share eighty eight
5
percent (88 %) of the total budget costs;
WHEREAS, the ORIGINAL PARTIES will further cost -share their 88% allocation
6 11DISTRICT based upon the original cost -share formula in the AGREEMENT, such that (1) the COUNTY,
and CITIES contributions are based on the watershed land area and population
8 11applied to the formula in the Amendment and Reinstatement of the National Pollutant
9 IlDischarge Elimination System Stormwater Implementation Agreement dated June 25, 2002,
t0 and (2) TIC and IRWD contributions are based on a fixed twelve and one -half percent
11 11(12.5%) each.
1211 NOW, THEREFORE, in consideration of the foregoing, it is agreed by and
13
between the PARTIES hereto that the AGREEMENT shall be amended as follows:
Section 1. Each and all of the provisions of the AGREEMENT remains in
94 full force and effect, except that Section 3, Section 4, Section 5, Section 10 and
15 Section 16 and Exhibit A and Exhibit C are amended in their entirety, as follows:
1611 Section 2. Section 3 of the AGREEMENT, entitled "FUNDING," shall be
17 amended to read in full as follows: Exhibit A, which is attached to this AMENDMENT .
18 and by this reference is made a part hereof, presents the cost -share allocations for
19 the PARTIES. As stated in Exhibit A (Table A -1), for the duration of the AGREEMENT as
20 amended, the ORIGINAL PARTIES shall provide eighty -eight percent (88 %) of the total
budget costs, CALTRANS shall provide five percent (5.0 %) of the total budget costs,
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TLCP shall provide two and one half percent (2.5%) of the total budget costs, LENNAR
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shall provide two and one half percent (2.5%) of the total budget costs, and Orange
23 County Great Park Corporation shall provide two percent (2.0 %) of the total budget
24 costs. As shown in Exhibit A (Table A -2), the ORIGINAL PARTIES` eighty eight percent
25 (88 %) share of the total budget costs (hereafter "ORIGINAL COST ALLOCATION ") shall be
26 cost - shared between an urban allocation and an open space allocation. The urban
allocation shall remain at seventy five percent (75 %) of the ORIGINAL COST ALLOCATION
2
IIAmendment No. 1 to Agreement No.D99 -12E
1 and the respective shares of IRWD and TIC shall remain at twelve and one half percent
2 (12.58) of the ORIGINAL COST ALLOCATION for the duration of this AGREEMENT as amended
3 herein. The individual cost shares for the COUNTY, DISTRICT and CITIES will be
4 revised once every year pursuant to the formula provided in Exhibit B to the
AGREEMENT, which is attached to the AGREEMENT and made a part hereof, based on changes
5
in watershed land area and population. The individual cost shares for the COUNTY,
6 DISTRICT and CITIES shall be calculated by the COUNTY Resources and Development
7 Management Department, Environmental Resources Section from population, land area and
8 watershed area data. These calculations shall be completed by January 1 of each year
9 and shall be included in the annual budget proposal.
10 Section 3. Section 4 of the AGREEMENT, entitled "PROGRAM BUDGETS AND
11 COSTS" shall be amended to read in full as follows: The COUNTY shall submit a scope
12 of work and a budget for the following fiscal year to each of the PARTIES by February
15 of each year. The budget shall contain an explanation of any recommended program
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changes, an estimate of all planned expenditures and an estimate of the payment
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required from each PARTY for the following fiscal year. For the State of California
15 budgeting requirements, CALTRANS' contribution shall not exceed $150,000 or five
16 percent (5.08) of the total budget costs, whichever is less, for each fiscal year
17 during the term of the AGREEMENT. If CALTRANS contribution would be greater than
18 $150,000 for a given fiscal year, the amount over $150,000 ( "EXCESS AMOUNT ") shall be
19 cost - shared as described in Section 2 of this Amendment, with the exception that for
20 such EXCESS AMOUNT, the ORIGINAL COST ALLOCATION shall be ninety -three percent (938)
and CALTRANS contribution shall be zero percent (0%).
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The PARTIES shall be permitted to review and approve the program scope of work
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and budget for the forthcoming year. Criteria for approval shall be affirmative
23 written responses from all of the PARTIES. The COUNTY and DISTRICT will constitute
24 one approving PARTY.
25 The tasks and expenditures for each fiscal year will be presented and calculated
26 as shown in Exhibit C, which is attached hereto and made a part hereof. All tasks and
expenditures will be updated each fiscal year as part of the budget approval process.
3
AmendmeQn No. 1 to Agreement No.D99 -12
i Therefore, Exhibit C as attached is a form to be completed every year. The COUNTY
2 shall be entitled to charge to the program all costs for direct labor, materials,
3 equipment and outside contract services for costs associated with carrying out the
4 approved scope of work. Recoverable costs will also include an overhead charge
calculated by the County Auditor- Controller which includes Resources and Development
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Management Department overhead and County -wide cost allocation plan.
L
Section 4. Section 5 of the AGREEMENT, entitled "PAYMENTS" shall be
7
amended to read in full as follows: Within 15 calendar days of the effective date of
8 11this AMENDMENT, the COUNTY shall send the PARTIES an invoice for a deposit which
9 Ilconstitutes their share of the total first year costs identified in Exhibit C (Table
10 IIC -1). Each of the PARTIES shall pay the deposit within 45 calendar days of their
12 llrespective receipt of the invoice.
The COUNTY shall notify each of the PARTIES if it appears that costs may exceed
13 the budget approved by the PARTIES in any fiscal year. The COUNTY shall prepare a
fiscal year end accounting within 60 calendar days of the end of the fiscal year. If
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the fiscal year end accounting results in costs (net of interest earnings) exceeding
15 the sum of the deposits, and the COUNTY has notified the PARTIES of
p potential cost
16 overruns, the COUNTY shall seek approval of the excess cost from the PARTIES in the
17 form of a revised budget and, upon approval, shall invoice each PARTY for its prorated
78 share of the excess cost up to the amount of the revised approved budget. Each PARTY
19 shall pay the billing within 45 calendar days of the date of the invoice. If the
20 fiscal year end accounting results in the sum of the deposits exceeding costs (net of
21 interest earnings), the excess deposits will carry forward to reduce the billings for
the following year. The fiscal year end accounting results and associated invoices
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for each PARTY will take into consideration any outside funding provided for programs
23
in the approved budget from entities not party to this AMENDMENT in the manner
24 presented in Exhibit C (Table C -2).
25 After the initial billing for the program, the COUNTY shall invoice each PARTY
26 for its annual deposit at the beginning (July 1) of each fiscal year. Each PARTY
shall pay the deposit within 45 calendar days of the date of the invoice. Each
4
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No. 1 to Agreement No.
1 PARTY'S deposit shall be based on its prorated share of the approved annual budget,
2 reduced by the sum of (a) its prorated share of any surplus identified in the prior
3 fiscal year end accounting, and (b) its prorated share of any funding provided for
4 programs in the approved budget from entities not party to this AMENDMENT.
Interest earned on the PARTIES' deposits will not be paid to the PARTIES, but
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will be credited against the PARTIES' share of the program costs.
6
Upon termination of the program, a final accounting shall be performed by the
7 COUNTY. If costs remaining after the deduction of interest costs exceed the sum of
6 the deposits, the COUNTY shall invoice each PARTY for its prorated share of the
9 deficit. Each PARTY shall pay the invoice within 45 calendar days of the date of the
10 invoice. If the sum of the deposits, including interest, exceeds the costs, the
11 COUNTY shall reimburse to each PARTY its prorated share of the excess, within 45
12 calendar days of the final accounting.
Section 5. Section 10 of the AGREEMENT, entitled "NO THIRD PARTY
13
BENEFICIARIES ", is amended to read in full as follows: Nothing expressed or mentioned
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in this AGREEMENT is intended or shall be construed to give any person, other than the
15 PARTIES hereto and any entity in which a PARTY has a legal interest (such as, but not
16 limited to, a limited liability membership interest or a partnership interest), and
17 any permitted successors or assigns of a PARTY, any legal or equitable right, remedy
18 or claim under or in respect of this AGREEMENT or any provisions herein contained.
19 This AGREEMENT and any conditions and provisions hereof is intended to be and is for
20 the sole and exclusive benefit of the PARTIES and the entities in which they have a
legal interest and their successors or assigns and for the benefit of no other person,
21
agency or entity.
22
Section 6. Section 16 of the AGREEMENT, entitled "NOTICES ", shall be
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amended to read in full as follow: All notices required or desired to be given under
24
this AGREEMENT as amended shall be in writing and (a) delivered personally, or (b)
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sent by certified mail, return receipt requested or (c) sent by telefacsimile
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communication followed by a mailed copy, to the addresses specified below, provided
5
Amendmen@ No. 1 to Agreement No.D99 -12E
1 each PARTY may change the address for notices by giving the other PARTIES at least ten
2 (10) days written notice of the new address. Notices shall be deemed received when
3 actually received in the office of the addressee or when delivery is refused, as shown
4 on the receipt of the U.S. Postal service, or other person making the delivery, except
5 that notices sent by telefacsimile communication shall be deemed received on the first
6 business day following transmission.
7 Director of Public Services
City of Costa Mesa
8 P.O. Box 1200
Costa Mesa, CA 92628 -1200
9 Facsimile: (714) 754 -5028
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Director of Public Works
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City of Irvine
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P.O. Box 19578
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Irvine, CA 92623 -9578
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Facsimile: (949) 724 -6440
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Director of Public Works
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Director of Public Services
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City of Laguna Hills
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24035 E1 Toro Road
Laguna Hills, CA 92653
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Facsimile: (949) 707 -2633
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Director of Community Development
City of Laguna Woods
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24264 E1 Toro Road
Laguna Woods CA 92637
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Facsimile:,(949) 639 -0591
Director of Public Works
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City of Lake Forest
25550 Commercentre Dr. Ste 100
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Lake Forest, CA 92630
Facsimile: (949) 461 -3511
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Director of Public Works
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City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92658
Facsimile: (949) 718 -1840
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Director of Public Works
City of Orange
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300 E. Chapman Ave
Orange, CA 92866
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Facsimile: (714) 532 -6444
Director of Public Works
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City of Santa Ana
101 W. 4`" St.
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Santa Ana, CA 92701
Facsimile: (714) 647 -5635
Director of Public Works
City of Tustin
300 Centennial Way
Tustin, CA 92780
Facsimile: (714) 734 -8991
Director, RDMD
County of Orange
300 N. Flower Street
Santa Ana, CA 92702 -4048
Facsimile: (714) 834 -2395
Director, Water Quality
Irvine Ranch Water District
3512 Michelson Dr
Irvine, CA 92712
Facsimile: (949) 453 -1228
Amendmen�No
Vice President of Environmental Affairs
The Irvine Company
550 Newport Center
Newport Beach, CA 92658 -8904
Facsimile: (949) 720 -2448
Office Chief, Environmental Planning
California Department of Transportation
3337 Michelson Dr. Ste 380
Irvine, CA 92612 -8894
Facsimile: (949) 724 -2519
David B. Placek
Tustin Legacy Community Partners
Senior Project Manager
250 Commerce, Suite 100
Irvine, CA 92602
Facsimile: (949) 453 -8994
Lennar Homes of California
Jim Werkmeister
7030 Trabuco Road, Building 83
Irvine, California 92618
Facsimile: (949) 551 -1186
Glen Worthington, Manager of Planning
Orange County Great Park Corporation
P.O. Box 19575
Irvine, CA 92623 -9575
Facsimile: (949) 724 -7407
1 to Agreement No.D99-
IN WITNESS WHEREOF, the PARTIES hereto have executed this AMENDMENT the day and
year first above written:
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Date:_ b ;2,-7 ^ d&
APPROVED AS TO FORM:
COUNTY COUNSEL
By:
Geo e , e
Date:
SIGNED AND CERTIFIED THAT A COPY OF
THIS AGREEMENT HAS BEEN DELIVERED TO
THE CHAIRMAN OF THE BOARD
By: -L�L" A
DARLE J. BLOO
Clerk of the Board of Supervisors of
Orange County, California
Date:_ (j _ .),-7 - 6b
Amendment No. 1 to Agreement No.D99-12E
COUNTY OF ORANGE,
a political subdivision of the State of
California
By: (�x w
Chairman of the Boikd of Supervisors
ORANGE COUNTY FLOOD CONTROL DISTRICT
a body corporate and politic
By: ax
Chairman of the Boa of Supervisors
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Date: '7-5-0P
'.APPROVED AS TO FORM:
ATTEST:
0
Amendment No. 1 to Agreement No.D99 -12
CITY OF NEWPORT BEACH
By: (;�:)— wai
Mayor
�� C_ 1.
Clerk �-y OeCity Attorney of Newport Beach
14
3Y
Agreement No.D99 -12
1 AGREEMENT TO FUND NUTRIENT, FECAL COLIFORM AND TOXICS TOTAL MAXIMUM DAILY LOAD (TMDL)
STUDIES IN THE NEWPORT BAY WATERSHED
2
3 THIS AGREEMENT, for purposes of identification numbered D99 -128, is made and
4 entered into this 18th day of September, 2003, by and between the County of Orange
( "COUNTY "), the Orange County Flood Control District ( "DISTRICT "), the City of Costa
5
Mesa ( "COSTA MESA "), the City of Irvine ( "IRVINE "), the City of Laguna Hills ( "LAGUNA
6
HILLS "), the City of Laguna Woods ( "LAGUNA WOODS "), the City of Lake Forest ( "LAKE
7 FOREST "), the City of Newport Beach ( "NEWPORT BEACH "), the City of Orange ( "ORANGE "),
6 the City of Santa Ana ( "SANTA ANA "), the City of Tustin ( "TUSTIN "), the Irvine Ranch
9 Water District ( "IRWD ") and The Irvine Company ( "TIC "). The thirteen entities are
10 hereinafter sometimes jointly referred to as the "PARTIES" and individually as
11 PARTY ". The cities are hereinafter sometimes jointly referred to as the "CITIES ".
WITNESSETH
12
WHEREAS, the California Regional Water Quality Control Board, Santa Ana Region
13
( "REGIONAL BOARD ") has adopted Resolution No. 98 -9, as amended by Resolution No. 98-
14
100 amending the Water Quality Control Plan for the Santa Ana River Basin to
15
incorporate a Nutrient TMDL for the Newport Bay /San Diego Creek Watershed on April 17,
16 1998 and Resolution 99 -10 amending the Water Quality Control Plan for the Santa Ana
17 River Basin to incorporate a TMDL for Fecal Coliform in Newport Bay on April 9, 1999
18 pursuant to the provisions of section 303(d) of the Clean Water Act; and,
19 WHEREAS, the United States Environmental Protection Agency (USEPA) has
20 established TMDLs for toxic pollutants, San Diego Creek and Newport Bay, California 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
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Agreement No.
The necessary for further monitoring, studies and load reduction implementation
Ilprojects over the period covered by the TMDLs, and,
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
incorporated in Exhibit C -1.
WHEREAS the PARTIES have reached agreement on a funding formula, which for the
(COUNTY, DISTRICT and CITIES is based on the watershed land area and population applied
to the formula in the Amendment and Reinstatement of the National Pollutant Discharge
Elimination System Stormwater Implementation Agreement dated June 25, 2002, and which
for TIC and IRWD is based on a fixed twelve and one -half percent (12.5 %) contribution.
NOW, THEREFORE, in consideration of the foregoing, the PARTIES agree as follows:
Section 1. PURPOSE. This AGREEMENT is entered into for the purpose of
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
Newport Bay watersheds.
Section 2. TERM. The term of this AGREEMENT shall commence upon approval and
execution of this document by all signatories to this AGREEMENT and shall continue
until June 30, 2008, unless sooner terminated as provided in Section B.
Section 3. FUNDING. Exhibit A, which is attached and by this reference is made
.a part hereof, presents the cost share allocations for the PARTIES.
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 an
CITIES will be revised once every year pursuant to the formula provided in Exhibit B,
which is attached hereto and made a part hereof, based on changes in watershed land
area and population. The percentage share shall be calculated by the COUNTY Public
Facilities and Resources Department, Environmental Resources Section from population,
land area and watershed area data. These calculations shall be completed by January
of each year and shall be included in the annual budget proposal. The respective
shares of IRWD and TIC shall remain at twelve and one half percent (12.58) each for
the duration of this AGREEMENT.
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u
Agreement No.D99-
Section 4. PROGRAM BUDGET AND COSTS. The COUNTY shall submit a scope of work and
a budget for the following fiscal year to each of the PARTIES by February 15 of each
year. The budget shall contain an explanation of any recommended program changes, an
estimate of all planned expenditures and an estimate of the payment required from each
PARTY for the following fiscal year.
The PARTIES shall be permitted to review and approve the program scope of work
and budget for the forthcoming year. Criteria for approval shall be affirmative
written responses from all of the PARTIES. The COUNTY and DISTRICT will constitute
lone approving PARTY.
The first year tasks and expenditures for FY 02/03 are six hundred twenty -five
thousand and nine hundred nineteen dollars ($625,919) as shown in Exhibit C -1, which
is attached hereto and made a part hereof. The budget for the scope of work for FY
03/04 is six hundred ninety thousand and two hundred and twenty dollars ($690,220) as
shown in Exhibit C -2, which is attached hereto and made a part hereof. The COUNTY
shall be entitled to charge to the program all costs for direct labor, materials,
.equipment and outside contract services for costs associated with carrying out the
approved scope of work. Recoverable costs will also 'include an overhead charge
calculated by the County Auditor - Controller which includes Public Facilities and
Resources Department overhead and County -wide cost allocation plan.
Section 5. PAYMENTS. Within 15 calendar days of.the effective date of this
AGREEMENT, the COUNTY shall send the PARTIES an invoice for a deposit which
constitutes their share of the total first year costs identified in Exhibit C -3, which
is attached hereto and made a part hereof. Each of the PARTIES shall pay the deposit
within 45 calendar days of their respective receipt of the invoice.
The COUNTY shall prepare a fiscal year end accounting within 60 calendar days of
the end of the fiscal year. If the fiscal year end accounting results in costs (net
of interest earnings) exceeding the sum of the deposits, the COUNTY shall seek
approval of the excess cost from the PARTIES and shall invoice each PARTY for its
prorated share of the excess cost up to the amount of the revised approved_ budget.
Each PARTY shall pay the billing within 45 calendar days of the date of the invoice.
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Agreement No.D99-
IIIf the fiscal year end accounting results in the sum of the deposits exceeding costs
(net of interest earnings), the excess deposits will carry forward to reduce the
billings for the following year.
After the initial billing for the program, the COUNTY shall invoice each PARTY
for its annual deposit at the beginning (July 1) of each fiscal year. Each PARTY
shall pay the deposit within 45 calendar days of the date of the invoice. Each
PARTY'S deposit shall be based on it's prorated share of the approved annual budget,
reduced by its prorated share of any surplus identified in the prior fiscal year end
accounting.
Interest earned on the PARTIES' deposits will not be paid to the PARTIES, but
I will be credited against the PARTIES' share of the program costs.
Upon termination of the program, a final accounting shall be performed by the
COUNTY. If costs remaining after the deduction of interest costs exceed the sum of
the deposits, the COUNTY shall invoice each PARTY for its prorated share of the
deficit. Each PARTY shall pay the invoice within 45 calendar days of the date of the
invoice. If the sum of the deposits, including interest, exceeds the costs, the
COUNTY shall reimburse to each PARTY its prorated share of the excess, within 45
calendar days of the final accounting.
Section 6. AMENDMENT. This AGREEMENT may be amended in writing only with the
unanimous written approval of the parties.
Section 7. LIABILITY. It is mutually understood and agreed that, merely by the
virtue of entering into this AGREEMENT, each PARTY neither relinquishes any rights nor
assumes any liabilities for its own actions or the actions of other PARTIES. It is
the intent of the PARTIES that the rights and liabilities of each Party shall remain
the same, while this AGREEMENT is in force, as it was before this AGREEMENT was made,
except as otherwise specifically provided in this agreement.
Section 8. TERMINATION. Any PARTY wishing to terminate its participation in
this AGREEMENT shall so notify all other PARTIES in writing by March 1 of any year.
Such termination shall be effective the following June 30. The terminating PARTY
shall be responsible for financial obligations hereunder to the extent incurred in
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Agreement No.D9
11 accordance with this agreement by the PARTY prior to the effective date of
ltermination. The balance of the PARTIES may continue in the performance of the terms
and conditions of this AGREEMENT on the basis of a revised allocation of cost based o
the funding formula in Exhibit A, provided however, that the pro rata shares for TIC
and IRWD shall never exceed twelve and one -half percent (12.58).
Section 9. AVAILABILITY OF FUNDS. The obligation of each PARTY is subject to
the availability of funds appropriated for this purpose, and nothing herein shall be
construed as obligating the PARTIES to expend or as involving the PARTIES in any
contract or other obligation for the future payment of money in excess of
appropriations authorized by law.
Section 10. NO THIRD PARTY BENEFICIARIES. Nothing expressed or mentioned in thi:
AGREEMENT is intended or shall be construed to give any person, other than the PARTIEI
hereto, and any permitted successors, any legal or equitable right, remedy or claim
under or in respect of this AGREEMENT or any provisions herein contained. This
AGREEMENT and any conditions and provisions hereof is intended to be and is for the
.sole and exclusive benefit of the PARTIES hereto and for the benefit of no other
person, agency or entity.
Section 11. REFERENCE TO CALENDAR DAYS. Any reference to the word "day" or
"days" herein shall mean calendar day or calendar days, respectively, unless otherwise
expressly provided.
Section 12. ATTORNEYS FEES. In any action or proceeding brought to
or interpret any provision of this AGREEMENT, or where any provision hereof is
asserted as a defense, each PARTY shall bear its own attorneys' fees and costs.
Section 13. ENTIRE AGREEMENT. This AGREEMENT is intended by the PARTIES as
a final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the PARTIES hereto in respect of the
subject matter contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein. This AGREEMENT
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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
16 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
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Director of Public Works
25 City of Laguna Hills
25201 Paseo de Alicia, #150
26 Laguna Hills, CA 92653
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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. 4rh 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
Agreement No.
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
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0 0 Agreement No. D99 -1;
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 an
3 do hereby submit to the jurisdiction of such court, notwithstanding Code of Civil
4 Procedure section 399. Furthermore, the PARTIES have specifically agreed, as part of
5 the consideration given and received for entering into this AGREEMENT, to waive any
6 and all rights to request that an action be transferred for trial to another county
7 under Code of Civil Procedure Section 399 or any other provision of law.
8 IN WITNESS WHEREOF, the PARTIES hereto have executed this AGREEMENT the day and
9 year first above written:
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COUNTY OF ORANGE
Date: is - 2 (o — 1)3
APPROVED AS TO FORM:
COUNTY COUN EL
By:
Deputy
Date: S-30 — <D3
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 Supervis s of
Orange County, California
Date: 6 - Z6 "b3
` - = -� Agreement No.D99 -121
a political subdiviJ ion of the State of
California By: �Mdo--
Chairman of the Board of Supervisors
ORANGE COUNTY FLOOD CONTROL DISTRICT
a body
�IY corporate
(�and politic
By: - WA14VY�{ _ -- --
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Chairman of the Board of Supervisors
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�J
CITY OF NEWPORT BEACH
By:
Date: �� ci t� , 2003
APPR
ATTEST:
City Clerk
1�
Agreement No.D99 -12E
Attorney of Newport Beach
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Bryan Speegle, Director
COUNTYOF ORANGE Environmental Resources
U1750 S. Douglass Road
RESOURCES &DEVELOPMENT MANAGEMENT DEPARTMENT Anaheim, CA 92806
Telephone: (714) 567 -6363
Fax: (714) 567 -6220
July 14, 2006
To Distribution
Subject: Executed Copies of Amendment No. 1 Agreement D99 -128 to Fund
Nutrient, Fecal Coliform and Toxics Total Maximum Daily Load (TMDL)
Studies in the Newport Bay Watershed
Please find enclosed one original executed copy of Amendment No. 1 Agreement D99-
128, which establishes a cooperative program to fund Nutrient, Fecal Coliform and
Toxics Total Maximum Daily Load (TMDL) studies in the Newport Bay Watershed.
I would like to thank everyone for their efforts in getting this agreement approved.
ftruly you,
Frompt:,, a er
Environmental Resources
Distribution: Director of Public Services, City of Costa Mesa
Director of Public Works, City of Irvine
Director of Public Services, City of Laguna Hills
Director of Community Development, City of Laguna Woods
Director of Public Works, City of Lake Forest
Director of Public Works, City of Newport Beach
Director of Public Works, City of Orange
Director of Public Works, City of Santa Ana
Director of Public Works, City of Tustin
Director, Water Quality, The Irvine Ranch Water District
Vice President of Environmental Affairs, The Irvine Company, LLC
Office Chief, Environmental Planning, California Department of
Transportation
David B. Placek, Tustin Legacy Community Partners, LLC
Jim Werkmeister, Lennar Homes of California
Glen Worthington, Great Park Corporation
Enclosures: 1 original executed copy of D99 -128
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• Amendmentoo. 1 to Agreement No.D99 -1
AMENDMENT NO. 1
AGREEMENT TO FUND NUTRIENT, FECAL COLIFORM AND TOXICS TOTAL MAXIMUM DAILY LOAD (TMDL)
STUDIES IN THE NEWPORT BAY WATERSHED
THIS AMENDMENT, for purposes of identification numbered Amendment No. 1 to
Agreement No. D99 -128, is made and entered into this _ day of 111,`'_, 2006
( "AMENDMENT "), by and between the County of Orange ( "COUNTY "), the Orange County Flood
Control District ( "DISTRICT "), the City of Costa Mesa ( "COSTA MESA "), the City of
Irvine ( "IRVINE "), the City of Laguna Hills ( "LAGUNA HILLS "), the City of Laguna Woods
(- LAGUNA WOODS "), the City of Lake Forest ( "LAKE FOREST "), the City of Newport Beach
( "NEWPORT BEACH "), the City of Orange ( "ORANGE "), the City of Santa Ana ( "SANTA ANA "),
the City of Tustin ( "TUSTIN "), the Irvine Ranch Water District ( "IRWD "), The Irvine
Company ( "TIC "), the California Department of Transportation ( "CALTRANS "), Tustin
Legacy Community Partners ( "TLCP "), Lennar Homes of California, Inc.( "LENNAR "), and
Orange County Great Park Corporation ( "GPC "). The seventeen entities are hereinafter
sometimes jointly referred to as the "PARTIES" and individually as "PARTY ". The cities
are hereinafter sometimes jointly referred to as,the "CITIES ". Thirteen entities (all
entities except for CALTRANS, TLCP, LENNAR, and GPC) are sometimes jointly referred to
as the "ORIGINAL PARTIES."
WITNESSETH
WHEREAS, the ORIGINAL PARTIES entered into Agreement No. D99 -128 on
(September 18, 2003, referred to hereinafter as "AGREEMENT ", to provide funding for the
Nutrient, Fecal Coliform and Toxics Total Maximum Daily Load (TMDL) studies in the
Newport Bay Watershed; and,
WHEREAS, according to Section 6 of the AGREEMENT, the AGREEMENT may be
amended in writing only with the unanimous written approval of the ORIGINAL PARTIES;
hand,
WHEREAS, the ORIGINAL PARTIES agree to amend the AGREEMENT to add.
) CALTRANS, TLCP, LENNAR and GPC as PARTIES to the AGREEMENT; and,
WHEREAS, the PARTIES have reached agreement on a new funding formula,
which states that (1) CALTRANS will contribute a fixed five percent (5.0 %) of the
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•
Amendment No. 1 to Agreement No.D99 -12£
total budget cost, (2) TLCP will contribute a fixed two and one half percent (2.5 %) of
the total budget cost, (3) LENNAR will contribute a fixed two and one half percent
(2.5 %) of the total budget cost, (4) GPC will contribute a fixed two percent (2.0 %) of
the total budget cost, and (5) the ORIGINAL PARTIES will cost -share eighty eight
percent (88 %) of the total budget costs;
WHEREAS, the ORIGINAL PARTIES will further cost -share their 88% allocation
based upon the original cost -share formula in the AGREEMENT, such that (1) the COUNTY,
DISTRICT and CITIES contributions are based on the watershed land area and population
applied to the formula in the Amendment and Reinstatement of the National Pollutant
Discharge Elimination System Stormwater Implementation Agreement dated June 25, 2002,
and (2) TIC and IRWD contributions are based on a fixed twelve and one -half percent
(12.5 %) each.
NOW, THEREFORE, in consideration of the foregoing, it is agreed by and
between the PARTIES hereto that the AGREEMENT shall be amended as follows:
Section 1. Each and all of the provisions of the AGREEMENT remains in
full force and effect, except that Section 3, Section 4, Section 5, Section 10 and
Section 16 and Exhibit A and Exhibit C are amended in their entirety, as follows:
Section 2. Section 3 of the AGREEMENT, entitled "FUNDING," shall be
amended to read in full as follows: Exhibit A, which is attached to this AMENDMENT
and by this reference is made a part hereof, presents the cost -share allocations for
the PARTIES. As stated in Exhibit A (Table A -1), for the duration of the AGREEMENT as
amended, the ORIGINAL PARTIES shall provide eighty -eight percent (88 %) of the total
budget costs, CALTRANS shall provide five percent (5.0 %) of the total budget costs,
TLCP shall provide two and one half percent (2.5 %) of the total budget costs, LENNAR
shall provide two and one half percent (2.5 %) of the total budget costs, and Orange
County Great Park Corporation shall provide two percent (2.0 %) of the total budget
costs. As shown in Exhibit A (Table A -2), the ORIGINAL PARTIES' eighty eight percent
(88 %) share of the total budget costs (hereafter "ORIGINAL COST ALLOCATION ") shall be
cost - shared between an urban allocation and an open space allocation. The urban
allocation shall remain at seventy five percent (75 %) of the ORIGINAL COST ALLOCATION
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• Amendment No. 1 to Agreement No.D99-12
and the respective shares of IRWD and TIC shall remain at twelve and one half percent
1(12.5 %) of the ORIGINAL COST ALLOCATION for the duration of this AGREEMENT as amended
(herein. The individual cost shares for the COUNTY, DISTRICT and CITIES will be
revised once every year pursuant to the formula provided in Exhibit B to the
AGREEMENT, which is attached to the AGREEMENT and made a part hereof, based on changes
in watershed land area and population. The individual cost shares for the COUNTY,
DISTRICT and CITIES shall be calculated by the COUNTY Resources and Development
Management Department, Environmental Resources Section from population, land area and
watershed area data. These calculations shall be completed by January 1 of each year
land shall be included in the annual budget proposal.
Section 3. Section 4 of the AGREEMENT, entitled "PROGRAM BUDGETS AND
COSTS" shall be amended to read in full as follows: The COUNTY shall submit a scope
of work and a budget for the following fiscal year to each of the PARTIES by February
15 of each year. The budget shall contain an explanation of any recommended program
changes, an estimate of all planned expenditures and an estimate of the payment
required from each PARTY for the following fiscal year. For the State of California
budgeting requirements, CALTRANS' contribution shall not exceed $150,000 or five
percent (5.0 %) of the total budget costs, whichever is less, for each fiscal year
during the term of the AGREEMENT. If CALTRANS contribution would be greater than
$150,000 for a given fiscal year, the amount over $150,000 ( "EXCESS AMOUNT ") shall be
cost - shared as described in Section 2 of this Amendment, with the exception that for
such EXCESS AMOUNT, the ORIGINAL COST ALLOCATION shall be ninety -three percent (93 %)
and CALTRANS contribution shall be zero percent (0 %).
The PARTIES shall be permitted to review and approve the program scope of work
and budget for the forthcoming year. Criteria for approval shall be affirmative
written responses from all of the PARTIES. The COUNTY and DISTRICT will constitute
one approving PARTY.
The tasks and expenditures for each fiscal year will be presented and calcula
las shown in Exhibit C, which is attached hereto and made a part hereof. All tasks
expenditures will be updated each fiscal year as part of the budget approval process.
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• Amendmen-f. No. 1 to Agreement No.D99 -12
Therefore, Exhibit C as attached is a form to be completed every year. The COUNTY
shall be entitled to charge to the program all costs for direct labor, materials,
equipment and outside contract services for costs associated with carrying out the
approved scope of work. Recoverable costs will also include an overhead charge
calculated by the County Auditor - Controller which includes Resources and Development
Management Department overhead and County -wide cost allocation plan.
Section 4. Section 5 of the AGREEMENT, entitled "PAYMENTS" shall be
amended to read in full as follows: Within 15 calendar days of the effective date of
this AMENDMENT, the COUNTY shall send the PARTIES an invoice for a deposit which
constitutes their share of the total first year costs identified in Exhibit C (Table
C -1). Each of the PARTIES shall pay the deposit within 45 calendar days of their
respective receipt of the invoice.
The COUNTY shall notify each of the PARTIES if it appears that costs may exceed
the budget approved by the PARTIES in any fiscal year. The COUNTY shall prepare a
fiscal year end accounting within 60 calendar days of the end of the fiscal year. If
the fiscal year end accounting results in costs (net of interest earnings) exceeding
the sum of the deposits, and the COUNTY has notified the PARTIES of potential cost
overruns, the COUNTY shall seek approval of the excess cost from the PARTIES in the
form of a revised budget and, upon approval, shall invoice each PARTY for its prorated
share of the excess cost up to the amount of the revised approved budget. Each PARTY
shall pay the billing within 45 calendar days of the date of the invoice. If the
fiscal year end accounting results in the sum of the deposits exceeding costs (net of
interest earnings), the excess deposits will carry forward to reduce the billings for
the following year. The fiscal year end accounting results and associated invoices
for each PARTY will take into consideration any outside funding provided for programs
in the approved budget from entities not party to this AMENDMENT in the manner
presented in Exhibit C (Table C -2).
After the initial billing for the program, the COUNTY shall invoice each PARTY
for its annual deposit at the beginning (July 1) of each fiscal year. Each PARTY
shall pay the deposit within 45 calendar days of the date of the invoice. Each
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• Amendme #No. 1 to Agreement No.D99 -1
PARTY'S deposit shall be based on its prorated share of the approved annual budget,
reduced by the sum of (a) its prorated share of any surplus identified in the prior
fiscal year end accounting, and (b) its prorated share of any funding provided for
programs in the approved budget from entities not party to this AMENDMENT.
Interest earned on the PARTIES' deposits will not be paid to the PARTIES, but
will be credited against the PARTIES' share of the program costs.
Upon termination of the program, a final accounting shall be performed by the
COUNTY. If costs remaining after the deduction of interest costs exceed the sum of
the deposits, the COUNTY shall invoice each PARTY for its prorated share of the
deficit. Each PARTY shall pay the invoice within 45 calendar days of the date of the
invoice. If the sum of the deposits, including interest, exceeds the costs, the
COUNTY shall reimburse to each PARTY its prorated share of the excess, within 45
calendar days of the final accounting.
Section 5. Section 10 of the AGREEMENT, entitled "NO THIRD PARTY
BENEFICIARIES ", is amended to read in full as follows: Nothing expressed or mentionec
in this AGREEMENT is intended or shall be construed to give any person, other than the
PARTIES hereto and any entity in which a PARTY has a legal interest (such as, but not
limited to, a limited liability membership interest or a partnership interest), and
any permitted successors or assigns of a PARTY, any legal or equitable right, remedy
or claim under or in respect of this AGREEMENT or any provisions herein contained.
This AGREEMENT and any conditions and provisions hereof is intended to be and is for
the sole and exclusive benefit of the PARTIES and the entities in which they have a
legal interest and their successors or assigns and for the benefit of no other person,
agency or entity.
Section 6. Section 16 of the AGREEMENT, entitled "NOTICES ", shall be
amended to read in full as follow: All notices required or desired to be given under
this AGREEMENT as amended shall be in writing and (a) delivered personally, or (b)
sent by certified mail, return receipt requested or (c) sent by telefacsimile
communication followed by a mailed copy, to the addresses specified below, provided
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• AmendmetNo. 1 to Agreement No.D99-
each PARTY may change the address for notices by giving the other PARTIES at least
(10) days written notice of the new address. Notices shall be deemed received when
actually received in the office of the addressee or when delivery is refused, as
on the receipt of the U.S. Postal service, or other person making the delivery,
that notices sent by telefacsimile communication shall be deemed received on the first
business day following transmission.
Director of Public Services
City of Costa Mesa
P.O. Box 1200
Costa Mesa, CA 92628 -1200
Facsimile: (714) 754 -5028
Director of Public Works
City of Irvine
P.O. Box 19578
Irvine, CA 92623 -9578
Facsimile: (949) 724 -6440
Director of Public Services
City of Laguna Hills
24035 E1 Toro Road
Laguna Hills, CA 92653
Facsimile: (949) 707 -2633
Director of Community Development
City of Laguna Woods
24264 E1 Toro Road
Laguna Woods CA 92637
Facsimile: (949) 639 -0591
Director of Public Works
City of Lake Forest
25550 Commercentre Dr. Ste 100
Lake Forest, CA 92630
Facsimile: (949) 461 -3511
Director of Public Works
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92658
Facsimile: (949) 718 -1840
Director of Public Works
City of Orange
300 E. Chapman Ave
Orange, CA 92866
Facsimile: (714) 532 -6444
Director of Public Works
City of Santa Ana
101 W. 4`" St.
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Santa Ana, CA 92701
Facsimile: (714) 647 -5635
Director of Public Works
City of Tustin
300 Centennial Way
Tustin, CA 92780
Facsimile: (714) 734 -8991
Director, RDMD
County of Orange
300 N. Flower Street
Santa Ana, CA 92702 -4048
Facsimile: (714) 834 -2395
Director, Water Quality
Irvine Ranch Water District
3512 Michelson Dr
Irvine, CA 92712
Facsimile: (949) 453 -1228
AmendmenP No. 1 to Agreement No.D99 -12E
Vice President of Environmental Affairs
The Irvine Company
550 Newport Center
Newport Beach, CA 92658 -8904
Facsimile: (949) 720 -2446
Office Chief, Environmental Planning
California Department of Transportation
3337 Michelson Dr. Ste 380
Irvine, CA 92612 -8894
Facsimile: (949) 724 -2519
David B. Placek
Tustin Legacy Community Partners
Senior Project Manager
250 Commerce, Suite 100
Irvine, CA 92602
Facsimile: (949) 453 -8994
Lennar Homes of California
Jim Werkmeister
7030 Trabuco Road, Building 83
Irvine, California 92618
Facsimile: (949) 551 -1186
Glen Worthington, Manager of Planning
Orange County Great Park Corporation
P.O. Box 19575
Irvine, CA 92623 -9575
Facsimile: (949) 724 -7407
IN WITNESS WHEREOF, the PARTIES hereto have executed this AMENDMENT the day and
year first above written:
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Amendment No. 1 to Agreement No.D9
COUNTY OF ORANGE,
a political subdivision of the State of
California
Date: _ Gj — % V l.! By: M `�(/v'`t{
Chairman of the Bo d of Supervisors
ORANGE COUNTY FLOOD CONTROL DISTRICT
a body corporate and politic
APPROVED AS TO FORM:
COUNTY COUNSEL
By:
Geo e
Date:
SIGNED AND CERTIFIED THAT A COPY OF
THIS AGREEMENT HAS BEEN DELIVERED TO
THE CHAIRMAN OF THE BOARD
By:
DARLEI J. BLO
clerk of the Board of Supervisors of
Orange County, California
Date: L — 2% — Q(p
By: as l..Cw"
Chairman of theboatA of 6upervisors
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Date:
JAPPROVED AS TO FORM:
IATTEST:
City er
Amendment No. 1 to Agreement No.D99-12E
CITY OF COSTA MESA
B y : �--
Mayor
City Attorney of Costa Mesa
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Date: 6iv(I ` --11 Z Cpcp�---,
APPROVED AS TO FORM:
ATTEST:
City Clerk
Amendment No. 1 to Agreement No.D99-12E
CITY OF IRVINE
By : �.
May r
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Date: w2rc,, C � LP
APPROVED AS TO FORM:
ATTEST:
City Cler
Mary A. t; lson
Amendment No. 1 to Agreement No.D99-12E
CITY OF LAGUNA HILLS
By:
I
w D
ity Attorney of ag na Hills
Gregory E. Simonian
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Date: 9/
APPROVED AS TO FORM:
ATTEST:
City Clerk
�r
Amendment No. 1 to Agreement No.D99-12E
B
Y�
Mayor
=�6 6 Yn ��
Cit Attorney of Laguna Woods
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APPROVED AS TO FORM:
7 ATTEST:
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Amendment No. 1 to Agreement No.D99-12
CITY OF LAKE FOREST
B y : I�—
Mayor l
r
City Attorney of a e orest
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Date: � —5 —0�
APPROVED AS TO FORM:
Amendment No. 1 to Agreement No.D99-12f
CITY OF NEWPORT BEACH
B � ("alj
By
Mayor
ATTEST:
l c-
City
Clerk Fp /City Attorney of Newport Beach
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Date:
APPROVED AS TO FORM:
ATTEST:
City Cler
Amendment No. 1 to Agreement No.D99-128
CITY OF ORANGE
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ATTEST:
PATRICIA E. HEAL
Clerk of the Council
I APPROVED AS TO FORM:
JOSEPH W.FLETCHER
City Attorney
By:
Benj i au
Chi f istant City Attorney
RECCOMENDED FOR A-Pl
/ ES ROSS, Executive Director
lic Works Agency
VAL
Amendment No. 1 to Agreement No. D99 -12f
CITY OF SANTA ANA
04/4,
4DAVID N. REAM
City Manager
-16-
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Date: -"W('-,, 2,0ZOA{.
IAPPROVED AS TO FORM:
ATTEST:
.City Clerk
Amendment No. 1 to Agreement No.D99-12E
CITY OF TUSTIN
By:
City Attorney of Tustin
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Amendment No. 1 to Agreement No.D99-12i
THE IRVINE RANCH WATER DISTRICT
Date: vW By:
Name: Paul D. Jqdesj II
Title c4nneral M ag r
Date: By:
Name•
Title:
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Amendment No. 1 to Agreement No.D99-12E
THE IRVINE COMPANY
Date: d`7 LUae By: �Gc�l2cji�
Name : P egc� 1-"6L5
Title:—
Date:—X4,,
itle: �,CE�yyy
Date: By:
Name
Title: jlze-cr-
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Amendment No. 1 to Agreement No.D99-12£
CALIFORNIA DEPARTMENT OF TRANSPORTATION
Date:— Ll 112-1 v By: 1A d k
Name: P I (_
Titl : "Tr-- C 1V) l�
Date: By:y , 941-w1 `
Name:
Title:
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Amendment No. 1 to Agreement No.D99-12
TUSTIN LEGACY COMMUNITY PARTNERS, LLC
a Delaware limited liability company
By:
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T y.
LENNAR HOMES OF CALIFORNIA
a Developer Member of Heritage Fields Limited
Liability Company
Date: 4I'd 2 0 0 � By:
Name: �r SaH
Title: DiV('sfon
Amendment No. 1 to MOP 22
NSMP
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Amendment No. 1 to Agreement No.D99-12E
GREAT PARK CORPORATION,
a California non-profit organization
Date:— By:
By:
Name:
Title:—
Date:
itle:Date: By:
Name:
Title:
23
• •
EXHIBIT A
COST -SHARE FOR PROGRAM PARTICIPANTS
TABLE A -1: AGREEMENT D99 -128 COST -SHARE FORMULA
LAND USE
COST SHARE
PROGRAM PARTICIPANTS'
88.0%
Original Parties Table A -2
5.0%
CalTrans
2.5%
Tustin Legacy Community Partners
2.5%
Lennar
2.0%
Great Park Corporation
888% is further cost- shared as shown In Table A -2
TABLE A -2: COST -SHARE FORMULA FOR ORIGINAL PARTIES (88% FROM TABLE A -1)
LAND USE-
COST SHARE.
PROGRAM PARTICIPANTS
Costa Mesa
Irvine
Laguna Hills
Laguna Woods
Lake Forest
Urban
75%'
Newport Beach
Orange
Santa Ana
Tustin
County of Orange
O.C. Flood Control District
Open Space /Undefined Areas
12.5 %2
The Irvine Company
Open Space /Undefined Areas
12.5 %2
Irvine Ranch Water District
' Includes all incorporated cities in the Newport Bay watershed and the County of Orange and Orange County Flood Control
District. The percentage breakdown for each is based on the existing NPDES funding formula which is based on a weighted
percentage of population and land area.
2 Includes all sources that do not fall in other categories such as sewage spills, atmospheric deposition, rising groundwater,
etc.
EXHIBIT C
Budget for Agreement D99 -128
Table C -1
2005 -2006 Budget for Newport Bay /San Diego Creek Watershed
Nutrient, Fecal Coliform and Toxics TMDL Programs
TMDL.
- - TASKOESCRIPTION-
..- - - _-
TOTAL-COST
TOTAL COST'
'TOTAL COST
PER TMDL
Nutrient
Newport Bay Nutrient TMDL Dissolved Oxygen and Algae Distribution Study
Prop. 13 Grant Matching Funds
$
Nutrient
Nutrient Monitoring and Data Collection (TMDL Implementation Plan
Section 2.c.1 Regional Nutrient Monitoring Program)
$
-
.NUTRIENT TMDL. TOTAL
Toxics
Nitrogen and Selenium Management Program
See Table C -2 for line item calculation)$
Toxics
Regional Monitoring Program
$
Toxics
Selenium Source Study
$
- _ TOXICS -TMDL TOTAL
Fecal
Coliform
Fecal Coliform TMDL 2003 -2004 Data Analysis (TMDL Implementation Plan
Section 3.a.ii.a )
$
Prop. 13 Fecal Coliform Stud
$
Fecal
Coliform
Shellfish Harvesting Beneficial Use Additional Studies
$
_
- FECAL.COLIFORM-TMDL TOTAL
- - -
'$
-
- 2005 -2006: BUDGET TOTAL
$ _:
$ - -- -
•
0
EXHIBIT C
Nitrogen and Selenium Management-'Program Budget'
Table C -2
Budget Calculation Cost
Program Budget FY 2005 -06 $
ctive Payments (New Participants)' $
Net NSMP Budget FY 2005 -06 $
butions By Funding Agreement % of NSMP Cost
nent D99 -128 Cost - Share •• 99.0% $
Funding `•' 1.0% $
Total NSMP Contributions $
= New Participants in the NSMP are required to fund all program
activities, retroactive to FY 2005 -06
•• = Budget amount for NSMP in Table C -1.
Golden State Water Company (1 %), Nexus (TBD %), and any future funding
partners (if applicable)
•
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 12
June 27, 2006
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY
FROM: City Manager's Office
Dave Kiff, Assistant City Manager
9491644 -3002 or dkiff @city.newport- beach.ca.us
SUBJECT: Amendment #1 to a Cooperative Agreement for the P
Total Maximum Daily Loads (TMDLs) in Newport Bay
1U,11 z 7 Pi �1n
ISSUE:
Should the City of Newport Beach participate in a Cooperative Agreement to administer
Newport Bay's TMDLs on a watershed -wide basis?
• RECOMMENDATION:
Authorize the Mayor to sign and execute Amendment #1 to the 2003 Cooperative
Agreement to fund Nutrient, Fecal Coliform and Toxics Total Maximum Daily Load
(TMDL) Studies & Programs in the Newport Bay Watershed.
DISCUSSION:
Newport Bay is an impaired water body per §303(d) of the federal Clean Water Act. As
such, the US Environmental Protection Agency (US EPA) and the State Water
Resources Control Board (SWRCB) via the California Regional Water Quality Control
Board, Santa Ana Region (Regional Board) is directed to prepare clean up plans --
called "Total Maximum Daily Loads" (TMDLs) — for the Bay. TMDLs attempt to
eliminate water quality impairments within a certain amount of time. Newport Bay is
listed on the §303(d) List for the following substances:
• Sediment • Fecal Coliform bacteria
• Nutrients • Toxic Pollutants
The adopted TMDLs contain requirements for studies, monitoring and the development
of programs to attain TMDL contaminant reduction targets over a multi -year period.
Additionally, the requirements of the TMDLs are incorporated into the National Pollutant
• Amendment #t to cooperative Agreement for TMDLs
June 27, 2006
Page 2
Discharge Elimination System (NPDES) Municipal Separate Storm Sewer System •
(MS4) Permit.
While Newport Bay is wholly within the city limits of Newport Beach, the Newport Bay
watershed includes more than 150 square miles of territory. Because the Bay's
impairments involve pollutants from throughout the watershed, the duty to adhere to the
TMDLs applies to many of the entities within the watershed, including:
• The'County of Orange;
• The Orange County Flood Control District;
• The Irvine Ranch Water District (IRWD);
• The Irvine Company; and
• The cities of Costa Mesa, Irvine, Laguna Hills, Laguna Woods, Lake Forest, Newport
Beach, Orange, Santa Ana, and Tustin ( "watershed cities ").
Each of the parties listed above cooperates -- via a Cooperative Agreement (formally
executed by all of the parties in September 2003 and which went to your Council on
June 24, 2003) -- to implement and administer the obligations of the TMDLs through at
least 2008. The parties developed the Agreement to provide a long -term funding
formula to ensure that the costs of compliance with the TMDLs are shared equitably
among the parties within the Newport Bay /San Diego Creek watershed. is
Currently, the cost share allocations for the Agreement are divided between IRWD, The
Irvine Company and the urban component assigned to the Watershed Cities, County of
Orange, and Orange County Flood Control District. The respective shares of IRWD
and The Irvine Company shall remain at 12.5 percent each for the duration of this
agreement. The urban cost share allocation for the 5 -year duration of the agreement is
75 percent.
Each party to the Cooperative Agreement must consent to add or delete partners. This
Council Action proposes Amendment No. 1 to the Agreement to add four new cost -
share parties:
• The California Department of Transportation (Caltrans)
• Tustin Legacy Community Partners
• Lennar, and
• The Great Park Corporation.
Each of the new parties has regulatory issues with the constituents covered by the
TMDLs and has determined that cooperation at a watershed scale with the current
parties is appropriate and cost - effective. Their cost share has been negotiated based on
their relative land area in the watershed and, when applicable, level of development
activity. The revised funding formula will result in the current parties collectively paying
88% of the budget with the new cost -share parties contributing 12% (Caltrans 5 %;
Lennar 2.5 %, Tustin Legacy Community Partners 2.5%; and, the Great Park
Corporation 2.0% respectively). As a result, the new cost -share formulas (if the
Amendment is adopted) will be as follows:
11
• Amendment #1 to Cooperative Agreement for TMDLs
June 27, 2006
Page 3
. The addition of the four new cost -share parties will therefore result in decreased costs to
the current parties. For FY 2005 -06 this amounted to $167,800 on the total budget
countywide of almost $1.4 million.
Environmental Review: The City Council's approval of this Agenda Item does not
require environmental review.
Public Notice: This agenda item may be noticed according to the Brown Act (72 hours
in advance of the public meeting at which the City Council considers the item).
Funding Availability: This item does not involve an expenditure. The City's TMDL
obligations for FY 2006 -07 are $104,680 and are included in the proposed budget.
Submitted by:
1
Dave ' f
Assistant City Manager
Attachments: Cooperative Agreement
Amendment No. 1 to Cooperative Agreement
Total Cost Share
Program Participants
2006 -07
Budget
88.00%
Costa Mesa
75%
5.97%
$ 69,120
Irvine
31.35°%
$ 363,143
Laguna Hills
0.74°%
$ 8,601
Laguna Woods
1.35%
$ 15,583
Lake Forest
7.06%
$ 81,746
Newport Beach
9.04%
$ 104,680
Orange
1.28%
$ 14,786
Santa Ana
19.01%
$ 220,231
Tustin
8.03°%
$ 93,007
County of Orange
6.17°%
$ 71,482
OC Flood Control District
10.00°%
$ 115,820
The Irvine Company
12.50°%
$ 193,033
IRWD
12.50°%
$ 193,033
5%
Caltrans
$ 87,742
2%
The Great Park Cor oration
$ 35,097
2.50%
Lennar Homes
$ 43,871
2.50°%
Tustin Laaacv Partners
$ 43,871
Total Budget for FY 2006 -07
$ 1,754,846
. The addition of the four new cost -share parties will therefore result in decreased costs to
the current parties. For FY 2005 -06 this amounted to $167,800 on the total budget
countywide of almost $1.4 million.
Environmental Review: The City Council's approval of this Agenda Item does not
require environmental review.
Public Notice: This agenda item may be noticed according to the Brown Act (72 hours
in advance of the public meeting at which the City Council considers the item).
Funding Availability: This item does not involve an expenditure. The City's TMDL
obligations for FY 2006 -07 are $104,680 and are included in the proposed budget.
Submitted by:
1
Dave ' f
Assistant City Manager
Attachments: Cooperative Agreement
Amendment No. 1 to Cooperative Agreement
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• • )
Amendment No. 1 to Agreement No.D99 -12
AMENDMENT NO. 1
AGREEMENT TO FUND NUTRIENT, FECAL COLIFORM AND TOXICS TOTAL MAXIMUM DAILY LOAD (TMDL)
STUDIES IN THE NEWPORT BAY WATERSHED
THIS AMENDMENT, for purposes of identification numbered Amendment No. 1 to
Agreement No. D99 -128, is made and entered into this day of , 2006
( "AMENDMENT "), by and between the County of Orange ( "COUNTY "), the Orange County Flood
Control District ( "DISTRICT "), the City of Costa Mesa ( "COSTA MESA "), the City of
Irvine ( "IRVINE "), the City of Laguna Hills ( "LAGUNA HILLS "), the City of Laguna Woods
(- LAGUNA WOODS"), the City of Lake Forest ( "LAKE FOREST "), the City of Newport Beach
( "NEWPORT BEACH "), the City of Orange ( "ORANGE "), the City of Santa Ana ( "SANTA ANA "),
the City of Tustin ( "TUSTIN "), the Irvine Ranch Water District ( "IRWD "), The Irvine
Company ( "TIC "), the California Department of Transportation ( "CALTRANS "), Tustin
Legacy Community Partners ( "TLCP "), Lennar Homes of California, Inc.( "LENNAR "), and
Orange County Great Park Corporation ( "GPC "). The seventeen entities are hereinafter
sometimes jointly referred to as the "PARTIES" and individually as "PARTY ". The cities
are hereinafter sometimes jointly referred to as the "CITIES ". Thirteen entities (all
entities except for CALTRANS, TLCP, LENNAR, and GPC) are sometimes jointly referred to
as the "ORIGINAL PARTIES."
WITNESSETH
WHEREAS, the ORIGINAL PARTIES entered into Agreement No. D99 -128 on
September 18, 2003, referred to hereinafter as "AGREEMENT ", to provide funding for the
Nutrient, Fecal Coliform and Toxics Total Maximum Daily Load (TMDL) studies in the
Newport Bay Watershed; and,
WHEREAS, according to Section 6 of the AGREEMENT, the AGREEMENT may be
amended in writing only with the unanimous written approval of the ORIGINAL PARTIES;
and,
WHEREAS, the ORIGINAL PARTIES agree to amend the AGREEMENT to add
CALTRANS, TLCP, LENNAR and GPC as PARTIES to the AGREEMENT; and,
WHEREAS, the PARTIES have reached agreement on a new funding formula,
which states that (1) CALTRANS will contribute a fixed five percent (5.08) of the
1
5
Amendment No. 1 to Agreement No.D99 -121
1
total budget cost, (2) TLCP will contribute a fixed two and one half percent (2.5 %) of
2
the total budget cost, (3) LENNAR will contribute a fixed two and one half percent
3
(2.5 %) of the total budget cost, (4) GPC will contribute a fixed two percent (2.0 %) of
the total budget cost, and (5) the ORIGINAL PARTIES will cost -share eighty eight
4
percent (88%) of the total budget costs;
5
WHEREAS, the ORIGINAL PARTIES will further cost -share their 88% allocation
6
based upon the original cost -share formula in the AGREEMENT, such that (1) the COUNTY,
7
DISTRICT and CITIES contributions are based on the watershed land area and population
6
applied to the formula in the Amendment and Reinstatement of the National Pollutant
9
Discharge Elimination System Stormwater Implementation Agreement dated June 25, 2002,
10
and (2) TIC and IRWD contributions are based on a fixed twelve and one -half percent
11
(12.5 %) each.
12
NOW, THEREFORE, in consideration of the foregoing, it is agreed by and
between the PARTIES hereto that the AGREEMENT shall be amended as follows:
13
Section 1. Each and all of the provisions of the AGREEMENT remains in
14
full force and effect, except that Section 3, Section 4, Section 5, Section 10 and
15
Section 16 and Exhibit A and Exhibit C are amended in their entirety, as follows:
16
Section 2. Section 3 of the AGREEMENT, entitled "FUNDING," shall be
17
amended to read in full as follows: Exhibit A, which is attached to this AMENDMENT
16
and by this reference is made a part hereof, presents the cost -share allocations for
19
the PARTIES. As stated in Exhibit A (Table A -1), for the duration of the AGREEMENT as
20
amended, the ORIGINAL PARTIES shall provide eighty -eight percent (88 %) of the total
budget costs, CALTRANS shall provide five percent (5.0 %) of the total budget costs,
21
TLCP shall provide two and one half percent (2.5 %) of the total budget costs, LENNAR
22
shall provide two and one half percent (2.5 %) of the total budget costs, and Orange
23
County Great Park Corporation shall provide two percent (2.0 %) of the total budget
24
costs. As shown in Exhibit A (Table A -2), the ORIGINAL PARTIES' eighty eight percent
25
(88 %) share of the total budget costs (hereafter "ORIGINAL COST ALLOCATION ") shall be
26
cost - shared between an urban allocation and an open space allocation. The urban
allocation shall remain at seventy five percent (75 %) of the ORIGINAL COST ALLOCATION
2
5
Amendment No. 1 to Agreement No.D99 -126
1 and the respective shares of IRWD and TIC shall remain at twelve and one half percent
2 (12.5 %) of the ORIGINAL COST ALLOCATION for the duration of this AGREEMENT as amended
3 herein. The individual cost shares for the COUNTY, DISTRICT and CITIES will be
revised once every year pursuant to the formula provided in Exhibit B to the
4
AGREEMENT, which is attached to the AGREEMENT and made a part hereof, based on changes
5
in watershed land area and population. The individual cost shares for the COUNTY,
6
DISTRICT and CITIES shall be calculated by the COUNTY Resources and Development
7 Management Department, Environmental Resources Section from population, land area and
8 watershed area data. These calculations shall be completed by January 1 of each year
9 and shall be included in the annual budget proposal.
10 Section 3. Section 4 of the AGREEMENT, entitled "PROGRAM BUDGETS AND
11 COSTS" shall be amended to read in full as follows: The COUNTY shall submit a scope
12 of work and a budget for the following fiscal year to each of the PARTIES by February
15 of each year. The budget shall contain an explanation of any recommended program
13
changes, an estimate of all planned expenditures and an estimate of the payment
14
required from each PARTY for the following fiscal year. For the State of California
15 budgeting requirements, CALTRANS' contribution shall not exceed $150,000 or five
16 percent (5.0 %) of the total budget costs, whichever is less, for each fiscal year
17 during the term of the AGREEMENT. If CALTRANS contribution would be greater than
18 $150,000 for a given fiscal year, the amount over $150,000 ( "EXCESS AMOUNT ") shall be
19 cost - shared as described in Section 2 of this Amendment, with the exception that for
20 such EXCESS AMOUNT, the ORIGINAL COST ALLOCATION shall be ninety -three percent (93 %)
and CALTRANS contribution shall be zero percent (0 %).
21
The PARTIES shall be permitted to review and approve the program scope of work
22
and budget for the forthcoming year. Criteria for approval shall be affirmative
23 written responses from all of the PARTIES. The COUNTY and DISTRICT will constitute
24 one approving PARTY.
25 The tasks and expenditures for each fiscal year will be presented and calculated
26 as shown in Exhibit C, which is attached hereto and made a part hereof. All tasks and
expenditures will be updated each fiscal year as part of the budget approval process.
3
(G
7
Amendment No. 1 to Agreement No.D99 -121
1
Therefore, Exhibit C as attached is a form to be completed every year. The COUNTY
2
shall be entitled to charge to the program all costs for direct labor, materials,
3
equipment and outside contract services for costs associated with carrying out the
approved scope of work. Recoverable costs will also include an overhead charge
4
calculated by the County Auditor - Controller which includes Resources and Development
5
Management Department overhead and County -wide cost allocation plan.
6
Section 4. Section 5 of the AGREEMENT, entitled "PAYMENTS" shall be
7
amended to read in full as follows: Within 15 calendar days of the effective date of
8
this AMENDMENT, the COUNTY shall send the PARTIES an invoice for a deposit which
9
constitutes their share of the total first year costs identified in Exhibit C (Table
10
C -1). Each of the PARTIES shall pay the deposit within 45 calendar days of their
11
respective receipt of the invoice.
The COUNTY shall notify each of.the PARTIES if it appears that costs may exceed
12
the budget approved by the PARTIES in any fiscal year. The COUNTY shall prepare a
13
fiscal year end accounting within 60 calendar days of the end of the fiscal year. If
14
the fiscal year end accounting results in costs (net of interest earnings) exceeding
15
the sum of the deposits, and the COUNTY has notified the PARTIES of
p potential cost
16
overruns, the COUNTY shall seek approval of the excess cost from the PARTIES in the
17
form of a revised budget and, upon approval, shall invoice each PARTY for its prorated
16
share of the excess cost up to the amount of the revised approved budget. Each PARTY
19
shall pay the billing within 45 calendar days of the date of the invoice. If the
fiscal year end accounting results in the sum of the deposits exceeding costs (net of
20
interest earnings), the excess deposits will carry forward to reduce the billings for
21
the following year. The fiscal year end accounting results and associated invoices
22
for each PARTY will take into consideration any outside funding provided for programs
23
•
in the approved budget from entities not party to this AMENDMENT in the manner
24
presented in Exhibit C (Table C -2).
25
After the initial billing for the program, the COUNTY shall invoice each PARTY
26
for its annual deposit at the beginning (July 1) of each fiscal year. Each PARTY
shall pay the deposit within 45 calendar days of the date of the invoice. Each
4
7
Amendment No. 1 to Agreement No.D99 -128
1 PARTY'S deposit shall be based on its prorated share of the approved annual budget,
2 reduced by the sum of (a) its prorated share of any surplus identified in the prior
3 fiscal year end accounting, and (b) its prorated share of any funding provided for
4 programs in the approved budget from entities not party to this AMENDMENT.
Interest earned on the PARTIES' deposits will not be paid to the PARTIES, but
5
will be credited against the PARTIES' share of the program costs.
6
Upon termination of the program, a final accounting shall be performed by the
7 COUNTY. If costs remaining after the deduction of interest costs exceed the sum of
6 the deposits, the COUNTY shall invoice each PARTY for its prorated share of the
9 deficit. Each PARTY shall pay the invoice within 45 calendar days of the date of the
10 invoice. If the sum of the deposits, including interest, exceeds the costs, the
11 COUNTY shall reimburse to each PARTY its prorated share of the excess, within 45
12 calendar days of the final accounting.
Section 5. Section 10 of the AGREEMENT, entitled "NO THIRD PARTY
13
BENEFICIARIES ", is amended to read in full as follows: Nothing expressed or mentioned
14
in this AGREEMENT is intended or shall be construed to give any person, other than the
15 PARTIES hereto and any entity in which a PARTY has a legal interest (such as, but not
16 limited to, a limited liability membership interest or a partnership interest), and
17 any permitted successors or, assigns of a PARTY, any legal or equitable right, remedy
18 or claim under or in respect of this AGREEMENT or any provisions herein contained.
19 This AGREEMENT and any conditions and provisions hereof is intended to be and is for
20 the sole and exclusive benefit of the PARTIES and the entities in which they have a
legal interest and their successors or assigns and for the benefit of no other person,
21
agency or entity.
22
Section 6. Section 16 of the AGREEMENT, entitled "NOTICES ", shall be
23
amended to read in full as follow: All notices required or desired to be given under
24
this AGREEMENT as amended shall be in writing and (a) delivered personally, or (b)
25
sent by certified mail, return receipt requested or (c) sent by telefacsimile
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communication followed by a mailed copy, to the addresses specified below, provided
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Amendment No. 1 to Agreement No.D9
each PARTY may change the address for notices by giving the other PARTIES at least ten
(10) days written notice of the new address. Notices shall be deemed received when
actually received in the office of the addressee or when delivery is refused, as shown
on the receipt of the U.S. Postal service, or other person making the delivery, except
that notices sent by telefacsimile communication shall be deemed received on the first
business day following transmission.
Director of Public Services
City of Costa Mesa
P.O. Box 1200
Costa Mesa, CA 92628 -1200
Facsimile: (714) 754 -5028
Director of Public Works
City of Irvine
P.O. Box 19578
Irvine, CA 92623 -9578
Facsimile: (949) 724 -6440
Director of Public Services
City of Laguna Hills
24035 E1 Toro Road
Laguna Hills, CA 92653
Facsimile: (949) 707 -2633
Director of Community Development
City of Laguna Woods
24264 E1 Toro Road
Laguna Woods CA 92637
Facsimile: (949) 639 -0591
Director of Public Works
City of Lake Forest
25550 Commercentre Dr. Ste 100
Lake Forest, CA 92630
Facsimile: (949) 461 -3511
Director of Public Works
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92658
Facsimile: (949) 718 -1840
Director of Public Works
City of Orange
300 E. Chapman Ave
Orange, CA 92866
Facsimile: (714) 532 -6444
Director of Public Works
City of Santa Ana
101 W. 4`h St.
2
Amendment No. 1 to Agreement No.D99 -12f
1 Santa Ana, CA 92701
Facsimile: (714) 647 -5635
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Director of Public Works
3 City of Tustin
300 Centennial Way
Tustin, CA 92780
4 Facsimile: (714) 734 -8991
5 Director, RDMD
County of Orange
6 300 N. Flower Street
Santa Ana, CA 92702 -4048
7 Facsimile: (714) 834 -2395
6 Director, Water Quality
Irvine Ranch Water District
3512 Michelson Dr
9 Irvine, CA 92712
Facsimile: (949) 453 -1228
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Vice President of Environmental Affairs
11 The Irvine Company
550 Newport Center
Newport Beach, CA 92658 -8904
12 Facsimile: (949) 720 -2448
13 Office Chief, Environmental Planning
California Department of Transportation
14 3337 Michelson Dr. Ste 380
Irvine, CA 92612 -8894
15 Facsimile: (949) 724 -2519
16 David B. Placek
Tustin Legacy Community Partners
Senior Project Manager
17 250 Commerce, Suite 100
Irvine, CA 92602
16 Facsimile: (949) 453 -8994
19 Lennar Homes of California
Jim Werkmeister
20 7030 Trabuco Road, Building 83
Irvine, California 92618
Facsimile: (949) 551 -1186
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Glen Worthington, Manager of Planning
22 Orange County Great Park Corporation
P.O. Box 19575
23 Irvine, CA 92623 -9575
Facsimile: (949) 724 -7407
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25 IN WITNESS WHEREOF, the PARTIES hereto have executed this AMENDMENT the day and
year first above written:
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Date:
APPROVED AS TO FORM:
COUNTY COUNSEL
By:
Geoffrey K. Hunt, Deputy
Date:
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Amendment No. 1 to Agreement No.D99 -12£
COUNTY OF ORANGE,
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
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:
By:
Chairman of the Board of Supervisors
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JAPPROVED AS TO FORM:
(ATTEST:
City Clerk
is
Amendment No. 1 to Agreement No.
CITY OF COSTA MESA
By:_
Mayor
City Attorney of Costa Mesa
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(APPROVED AS TO FORM:
ATTEST:
City Clerk
Amendment No. 1 to Agreement No.D99-
CITY OF IRVINE
By:
Mayor
City Attorney of Irvine
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JAPPROVED AS TO FORM:
(ATTEST:
City Clerk.
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Amendment No. 1 to Agreement No.D99 -12
CITY OF LAGUNA HILLS
By:
Mayor
City Attorney of Laguna Hills
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(APPROVED AS TO FORM:
(ATTEST:
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Amendment No. 1 to Agreement No.D99 -121
CITY OF LAGUNA WOODS
By:
Mayor
City Attorney of Laguna Woods
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(APPROVED AS TO FORM:
(ATTEST:
City Clerk
Amendment No. 1 to Agreement No.D99-
CITY OF LAKE FOREST
By:
Mayor
City Attorney of Lake Forest
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IDate:
IAPPROVED AS TO FORM:
ATTEST:
(City Clerk
Amendment No. 1 to Agreement No.D99 -12f
CITY OF NEWPORT BEACH
By:_
Mayor
City Attorney of Newport Beach
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(APPROVED AS TO FORM:
IATTEST:
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Amendment No. 1 to Agreement No.D99-
CITY OF ORANGE
By:
Mayor
City Attorney of Orange
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Date:
APPROVED AS TO FORM:
ATTEST:
City Clerk
Amendment No. 1 to Agreement No.D9
CITY OF SANTA ANA
By:
Mayor
City Attorney of Santa Ana
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IDate:
JAPPROVED AS TO FORM:
(ATTEST:
City Clerk
Amendment No. 1 to Agreement No.D99 -12
CITY OF TUSTIN
By:
Mayor
City Attorney of Tustin
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Date:
Amendment No. 1 to Agreement No.D99 -12£
THE IRVINE RANCH WATER DISTRICT
By:
Name:
Title:
By:
Name:
Title:
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Amendment No. 1 to Agreement No.D99-
THE IRVINE COMPANY
By:
Name:
Title:
By:
Name:
Title:
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Date:
Date:
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Amendment No. 1 to Agreement No.D99-
CALIFORNIA DEPARTMENT OF
By:
By:
Name:
Title:
Name:
Title:
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IDate:
IDate:
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Amendment No. 1 to Agreement No.D99-
TUSTIN LEGACY COMKUNITY PARTNERS, LLC
a Delaware limited liability company
By:
By:
Susan Lindquist
Director of Community Development
Name:
Title:
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IDate:
IDate:
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Amendment No. 1 to Agreement No.D99-
Lennar Homes of California,
a Developer Member of Heritage Fields Limited
Liability Company
By
Name•
Title:
By:
Name
Title:
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I Date:
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Amendment No. 1 to Agreement No.D99 -12
GREAT PARK CORPORATION,
a California non - profit organization
By:
Name:
Title:
By:
Name:
Title:
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EXHIBIT A
COST -SHARE FOR PROGRAM PARTICIPANTS
TABLE A -1: AGREEMENT D99 -128 COST -SHARE FORMULA
LAND USE
COST SHARE
PROGRAM PARTICIPANTS
88.0%
Parties able A -2
5.0%
-Original
CalTrans
2.5%
Tustin Legacy Community Partners
2.5%
Lennar
2.0%
Great Park Corporation
'88% is further cost - shared as shown in Table A -2
TABLE A -2: COST -SHARE FORMULA FOR ORIGINAL PARTIES (88% FROM TABLE A -1)
LAND USE
COST SHARE
PROGRAM PARTICIPANTS
Costa Mesa
Irvine
Laguna Hills
Laguna Woods
Lake Forest
Urban
75 %'
Newport Beach
Orange
Santa Ana
Tustin
County of Orange
O.C. Flood Control District
Open Space /Undefined Areas
12.5 %2
The Irvine Company
Open Space/Undefined Areas
12.5 %z
Irvine Ranch Water District
' Includes all incorporated cities in the Newport Bay watershed and the County of Orange and Orange County Flood Control
District. The percentage breakdown for each is based on the existing NPDES funding formula which is based on a weighted
percentage of population and land area.
' Includes all sources that do not fall in other categories such as sewage spills, atmospheric deposition, rising groundwater.
etc.
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EXHIBIT C
Budget for Agreement D99 -128
Table C -1
2005 -2006 Budget for Newport Bay /San Diego Creek Watershed
Nutrient, Fecal Coliform and Toxics TMDL Programs
TMDL
TASK DESCRIPTION
TOTAL COST
TOTAL COST
PER TMDL
Nutrient
Newport Bay Nutrient TMDL Dissolved Oxygen and Algae Distribution Study
Prop. 13 Grant Matching Funds
$
Nutrient
Nutrient Monitoring and Data Collection (TMDL Implementation Plan
Section 2.c.1 Regional Nutrient Monitoring Program)
$
NUTRIENT TMDL TOTAL
$
Toxic
Nitrogen and Selenium Management Program
(See Table C -2 for line hem calculation )
$
Toxics
Regional Monitoring Program
$
Toxics
Selenium Source Study
$
TOXICS TMDL TOTAL
$
Fecal
C01110MI
Fecal Coliform TMDL 2003 -2004 Data Analysis (TMDL Implementation Plan
Section 3.a.ii.a )
$
Prop. 13 Fecal Coliform Study
$
Fecal
Coliform
Shellfish Harvesting Beneficial Use Additional Studies
$
FECAL COLIFORM TMDL TOTAL
$
2005 -2008 BUDGET TOTAL
$ -
$
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EXHIBIT C
Nitrogen and Selenium Management Program Budget
Table C -2
Budget Calculation
Program Budget FY 2005 -06
,tive Payments (New Participants)*
Net NSMP
3utions By Funding Agreement
lent D99 -128 Cost -Share **
Funding * **
at FY 2005 -06 $
% of NSMP
99.0% $
1.0% $
NSMP Contributions
Cost
Cost
' = New Participants in the NSMP are required to fund all program
activities, retroactive to FY 2005 -06
Budget amount for NSMP in Table C -1.
" ** = Golden State Water Company (1 %), Nexus (TBD %), and any future funding
partners (if applicable)
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Agreement No.D99-
AGREEMENT TO FUND NUTRIENT, FECAL COLIFORM AND TOXICS TOTAL MAXIMUM DAILY LOAD (TMDL)
STUDIES IN THE NEWPORT BAY WATERSHED
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
( "COUNTY "), the Orange County Flood Control District ( "DISTRICT ") , the City of Costa
Mesa ("COSTA MESA "), the City of Irvine ( "IRVINE "), the City of Laguna Hills ( "LAGUNA
HILLS'), the City of Laguna Woods ( "LAGUNA WOODS'), the City of Lake Forest (`LAKE
FOREST "), the City of Newport Beach ( "NEWPORT BEACH ") , the City of Orange ( "ORANGE"),
the City of Santa Ana ( "SANTA ANA "), the City of Tustin ( "TUSTIN "), the Irvine Ranch
Water District ( "IRWD") and The Irvine Company ( "TIC'). The thirteen entities are
hereinafter sometimes jointly referred to as the "PARTIES' and individually as
"PARTY ". The cities are hereinafter sometimes jointly referred to as the "CITIES ".
WITNESSETH
WHEREAS, the California Regional Water Quality Control Board, Santa Ana Region
( "REGIONAL BOARD") has adopted Resolution No. 98 -9, as amended by Resolution No. 98-
100 amending the Water Quality Control Plan for the Santa Ana River Basin to
incorporate a Nutrient TMDL for the Newport Bay /San Diego Creek Watershed on April 17,
11998 and Resolution 99 -10 amending the water Quality Control Plan for the Santa Ana
River Basin to incorporate a TMDL for Fecal Coliform in Newport Bay on April 9, 1999
pursuant to the provisions of section 3O3(d) of the Clean Water Act; and,
WHEREAS, the United States Environmental Protection Agency (USEPA) has
established TMDLs for toxic pollutants, San Diego Creek and Newport Bay, California on
June 14, 2002, and the REGIONAL BOARD is developing implementation plans for each of
the toxic pollutants; and,
WHEREAS, the adopted TMDLs contain requirements for studies, monitoring and the
development of programs to attain TMDL reduction targets over a multi -year period;
and,
WHEREAS, the PARTIES intend this AGREEMENT to provide for the performance of
studies, monitoring and development of programs and funding therefore for a period
through to June 30, 2008 after which it is recognized that additional agreements may
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Agreement No.D99-
be necessary for further monitoring, studies and load reduction implementation
projects over the period covered by the TMDLs; and,
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
incorporated in Exhibit C -1.
WHEREAS the PARTIES have reached agreement on a funding formula, which for the
COUNTY, DISTRICT and CITIES is based on the watershed land area and population applied
to the formula in the Amendment and Reinstatement of the National Pollutant Discharge
Elimination System Stormwater Implementation Agreement dated June 25, 2002, and which
for TIC and IRWD is based on a fixed twelve and one -half percent (12.58) contribution.
NOW, THEREFORE, in consideration of the foregoing, the PARTIES agree as follows:
Section 1. PURPOSE. This AGREEMENT is entered into for the purpose of funding
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
Newport Bay watersheds.
Section 2. TERM. The term of this AGREEMENT shall commence upon approval and
execution of this document by all signatories to this AGREEMENT and shall continue
until June 30, 2008, unless sooner terminated as provided in Section 8.
Section 3. FUNDING. Exhibit A, which is attached and by this reference is made
a part hereof, presents the cost share allocations for the PARTIES.
The urban allocation in Exhibit A shall remain at seventy five percent (758) for the
duration of the AGREEMENT, but the individual cost shares for the COUNTY, DISTRICT and
CITIES will be revised once every year pursuant to the formula provided in Exhibit B,
which is attached hereto and made a part hereof, based on changes in watershed land
area and population. The percentage share shall be calculated by the COUNTY Public
Facilities and Resources Department, Environmental Resources Section from population,
land area and watershed area data. These calculations shall be completed by January 1
of each year and shall be included in the annual budget proposal. The respective
shares of IRWD and TIC shall remain at twelve and one half percent (12.58) each for
the duration of this AGREEMENT.
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Agreement No.D9
Section 4. PROGRAM BUDGET AND COSTS. The COUNTY shall submit a scope of work an<
Is budget for the following fiscal year to each of the PARTIES by February 15 of each
year. The budget shall contain an explanation of any recommended program changes, an
estimate of all planned expenditures and an estimate of the payment required from each
PARTY for the following fiscal year.
The PARTIES shall be permitted to review and approve the program scope of work
and budget for the forthcoming year. Criteria for approval shall be affirmative
written responses from all of the PARTIES. The COUNTY and DISTRICT will constitute
one approving PARTY.
The first year tasks and expenditures for FY 02/03 are six hundred twenty -five
thousand and nine hundred nineteen dollars ($625,919) as shown in Exhibit C -1, which
is attached hereto and made a part hereof. The budget for the scope of work for FY
03/04 is six hundred ninety thousand and two hundred and twenty dollars ($690,220) as
shown in Exhibit C -2, which is attached hereto and made a part hereof. The COUNTY
shall be entitled to charge to the program all costs for direct labor, materials,
equipment and outside contract services for costs associated with carrying out the
approved scope of work. Recoverable costs will also include an overhead charge
calculated by the County Auditor - Controller which includes Public Facilities and
Resources Department overhead and County -wide cost allocation plan.
Section 5. PAYMENTS. Within 15 calendar days of the effective date of this
AGREEMENT, the COUNTY shall send the PARTIES an invoice for a deposit which
constitutes their share of the total first year costs identified in Exhibit C -3, which
is attached hereto and made a part hereof. Each of the PARTIES shall pay the deposit
within 45 calendar days of their respective receipt of the invoice.
The COUNTY shall prepare a fiscal year end accounting within 60 calendar days of
the end of the fiscal year. If the fiscal year end accounting results in costs (net
of interest earnings) exceeding the sum of the deposits, the COUNTY shall seek
approval of the excess cost from the PARTIES and shall invoice each PARTY for its
prorated share of the excess cost up to the amount of the revised approved budget.
Each PARTY shall pay the billing within 45 calendar days of the date of the invoice.
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Agreement No.D99 -121
IIf the fiscal year end accounting results in the sum of the deposits exceeding costs
I(net of interest earnings), the excess deposits will carry forward to reduce the
billings for the following year.
After the initial billing for the program, the COUNTY shall invoice each PARTY
for its annual deposit at the beginning (July 1) of each fiscal year. Each PARTY
shall pay the deposit within 45 calendar days of the date of the invoice. Each
PARTY'S deposit shall be based on it's prorated share of the approved annual budget,
reduced by its prorated share of any surplus identified in the prior fiscal year end
accounting.
Interest earned on the PARTIES' deposits will not be paid to the PARTIES, but
will be credited against the PARTIES' share of the program costs.
Upon termination of the program, a final accounting shall be performed by the
COUNTY. If costs remaining after the deduction of interest costs exceed the sum of
the deposits, the COUNTY shall invoice each PARTY for its prorated share of the
deficit. Each PARTY shall pay the invoice within 45 calendar days of the date of the
invoice. If the sum of the deposits, including interest, exceeds the costs, the
COUNTY shall reimburse to each PARTY its prorated share of the excess, within 45
'calendar days of the final accounting.
Section 6. AMENDMENT. This AGREEMENT may be amended in writing only with the
unanimous written approval of the parties.
Section 7. LIABILITY. It is mutually understood and agreed that, merely by the
virtue of entering into this AGREEMENT, each PARTY neither relinquishes any rights nor
,assumes any liabilities for its own actions or the actions of other PARTIES. It is
the intent of the PARTIES that the rights and liabilities of each Party shall remain
the same, while this AGREEMENT is in force, as it was before this AGREEMENT was made,
except as otherwise specifically provided in this agreement.
Section 8. TERMINATION. Any PARTY wishing to terminate its participation in
this AGREEMENT shall so notify all other PARTIES in writing by March 1 of any year.
Such termination shall be effective the following June 30. The terminating PARTY
shall be responsible for financial obligations hereunder to the extent incurred in
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Agreement No.D9
accordance with this agreement by the PARTY prior to the effective date of
(termination. The balance of the PARTIES may continue in the performance of the terms
and conditions of this AGREEMENT on the basis of a revised allocation of cost based o
the funding formula in Exhibit A, provided however, that the pro rata shares for TIC
and IRWD shall never exceed twelve and one -half percent (12.58).
Section 9. AVAILABILITY OF FUNDS. The obligation of each PARTY is subject to
the availability of funds appropriated for this purpose, and nothing herein shall be
construed as obligating the PARTIES to expend or as involving the PARTIES in any
contract or other obligation for the future payment of money in excess of
appropriations authorized by law.
Section 10. NO THIRD PARTY BENEFICIARIES. Nothing expressed or mentioned in this
AGREEMENT is intended or shall be construed to give any person, other than the PARTIES
(hereto, and any permitted successors, any legal or equitable right, remedy or claim
'under or in respect of this AGREEMENT or any provisions herein contained. This
AGREEMENT and any conditions and provisions hereof is intended to be and is for the
sole and exclusive benefit of the PARTIES hereto and for the benefit of no other
person, agency or entity.
Section 11. REFERENCE TO CALENDAR DAYS. Any reference to the word "dad" or
"days" herein shall mean calendar day or calendar days, respectively, unless otherwise
expressly provided.
Section 12. ATTORNEYS FEES. In any action or proceeding brought to enforce
for interpret any provision of this AGREEMENT, or where any provision hereof is
asserted as a defense, each PARTY shall bear its own attorneys' fees and costs.
Section 13. ENTIRE AGREEMENT. This AGREEMENT is intended by the PARTIES as
a final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the PARTIES hereto in respect of the
subject matter contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein. This AGREEMENT
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Agreement No.D99-
supersedes all prior agreements and understandings between the PARTIES with respect to
such matter.
Section 14. SEVERABILITY. If any part of this AGREEMENT is held,
determined or adjudicated to be illegal, void, or unenforceable by a court of
competent jurisdiction, the remainder of this AGREEMENT shall be given effect to the
fullest extent reasonably possible.
Section 15. SUCCESSORS AND ASSIGNS. The terms and provisions of this
AGREEMENT shall be binding upon and inure to the benefit of the PARTIES hereto and
their successors and assigns.
Section 16. NOTICES. All notices required or desired to be given under
this AGREEMENT shall be in writing and (a) delivered personally, or (b) sent by
certified mail, return receipt requested or (c) sent by telefacsimile communication
followed by a mailed copy, to the addresses specified below, provided each PARTY may
change the address for notices by giving the other PARTIES at least ten (10) days
written notice of the new address. Notices shall be deemed received when actually
received in the office of the addressee or when delivery is refused, as shown on the
receipt of the U.S. Postal service, or other person making the delivery, except that
notices sent by telefacsimile communication shall be deemed received on the first
business day following transmission.
Director of Public Services
City of Costa Mesa
P.O. Box 1200
Costa Mesa, CA 92628 -1200
Director of Public Works
City of Irvine
P.O. Box 19578
Irvine, CA 92623 -9578
Director of Public Works
City of Laguna Hills
25201 Paseo de Alicia, 4150
Laguna Hills, CA 92653
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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. 4t° 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
Fj
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Agreement No.D99-
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
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Agreement No.D99 -12f
interpret this AGREEMENT, the sole and exclusive venue shall be a.court of competent
jurisdiction located in Orange County, California, and the PARTIES hereto agree to and
do hereby submit to the jurisdiction of such court, notwithstanding Code of Civil
Procedure section 394. Furthermore, the PARTIES have specifically agreed, as part of
the consideration given and received for entering into this AGREEMENT, to waive any
and all rights to request that an action be transferred for trial to another county
under Code of Civil Procedure Section 394 or any other provision of law.
IN WITNESS WHEREOF, the PARTIES hereto have executed this AGREEMENT the day and
year first above written:
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COUNTY OF ORANGE
I 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:
Ll
Agreement No.D99-
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:
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Chairman of the Board of Supervisors
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CITY OF COSTA MESA
Date:
ATTEST:
City Clerk
0 0 -1
Bv:
Mayor
2003
APPROVED AS TO FORM:
City Attorney of Costa Mesa
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Agreement No.D99 -12E
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CITY OF IRVINE
Date: , 2003
ATTEST:
(City Clerk
By:
Mayor
APPROVED AS TO FORM:
City Attorney of Irvine
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CITY OF LAGUNA HILLS
Date:
ATTEST:
City Clerk
Agreement No.D99-
Sy:
Mayor
2003
APPROVED AS TO FORM:
City Attorney of Laguna Hills
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CITY OF LAGUNA WOODS
Date:
ATTEST:
City Clerk
0
Agreement No.D99-
Sy:
Mayor
2003
APPROVED AS TO FORM:
City Attorney of Laguna Woods
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Agreement No.D99 -121
1 II CITY OF LAKE FOREST
BY:
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ATTEST:
City Clerk
Mayor
2003
APPROVED AS TO FORM:
City Attorney of Lake Forest
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CITY OF NEWPORT BEACH
Date:
ATTEST:
City Clerk
0
Agreement No.D99 -12
By'
Mayor
2003
APPROVED AS TO FORM:
City Attorney of Newport Beach
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CITY OF ORANGE
Date:
ATTEST:
City Clerk
Bv:
Mayor
2003
APPROVED AS TO FORM:
City Attorney of Orange
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Agreement No.D99 -12£
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]CITY OF SANTA ANA
Date:
ATTEST:
City Clerk
• •
Bv:
Mayor
2003
APPROVED AS TO FORM:
City Attorney of Santa Ana
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Agreement No.D99 -12
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CITY OF TUSTIN
Date:
ATTEST:
City Clerk
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Mayor
2003
APPROVED AS TO FORM:
City Attorney of Tustin
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• •
THE IRVINE RANCH WATER DISTRICT
Date:
2003
By:
Chairman
By:
Attorney for IRWD
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Agreement No.D99-
W.
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ITHE IRVINE COMPANY
IDate:
U
, 2003
0
Bv:
MONICA FLORIAN
ITS: Group Vice President
Environmental Affairs
By:
Pat Brogues
ITS: General Counsel
Agreement No.D99 -12E
41
EXHIBIT A
COST SHARE ALLOCATIONS
FOR PROGRAM PARTICIPANTS
LAND USE
COST
SHARE
PROGRAM PARTICIPANTS
Costa Mesa
Irvine
Laguna Hills
Laguna Woods
Lake Forest
Urban
75%
Newport Beach
Orange
Santa Ana
Tustin
County of Orange
O.C. Flood Control District
Open Space /Undefined Areas
12.5%
The Irvine Company
Open Space/Undefined Areas
12.5%
Irvine Ranch Water
District
A
u
50
0
EXHIBIT B
0 1
Cost Share for Urban Component
Based on NPDES Funding Formula
JURISDICTION
TOTAL
SQUARE
M.41LES'
SO. MILES
WITHIN
WATERSHED'
PERCENTAGE
OF CITY LAND
�� IN 2
WATERSHEO
TOTAL
POPULATION'
ESTIMATED
POPULATION
WATERSHED'
WEIGHTED'
AVERAGE
SHARE OF -,
COST ( %)
Costa Mesa
15.56
7.58
48.71
Q 110.700
53.920
6.19
Irvine
46A S
45.07
97.66
I 157,500
153,821
25.13
La gun Hills
6.63
1.17
17.66
33.800
5.968
0.79
Laguna Woods
3.05
1.91
62.62
16 800
10,521
1.34
Lake Forest
16.80
11.56
68.83
76.600
52,724
7.37
Newport Beach
27.74
16.61
59.88
72.500
43 411
8.33
Ora me
23.33
1.6
6.86
132,900
-9,11-5
1.15
Santa Ana
27.35
16.34
59.75
343,700
205 348
1957
Tustin
11,09
11.09
100.00
69100
69.100
8.37
County of
range
86.85
28.19
32.46
122,534
39.774
11.77
O.C. Flood
Control Districe
10.00
TOTAL
264.54
141.12
1,136,134.00
643 702
10D.00
'Source: NPOES Stomnrater Permit Implementation Agreement D02 -048. Includes Land Area Deductions from agreement
exh!it A•1
'Percentage of City Land Area In Watershed = Square m3es within WatershedJTotat Square Miles' 100
'Taken from NPDES budget, which is derived from Califom°a State Dept, of Finance data
'Estimated Population In Watershed = Total Population I Percentage of City Land Area In Wmershewitto
hNefghted Average Share of Cost -((Square Lies vfthin WalemnedNotal Square 142es of Watershed)'0.5)+((Esdmated
Poptft Wn In Watershed /rota) Estimated Population in Watershed)10,5) x 90
0mrtge County Flood Control District assumes a flat 10 percent of the total
SI
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EXHIBIT C -1
2002 -2003 Budget for Newport Bay /San Diego Creek Watershed
Nutrient, Fecal Coliform and Toxics TMDL Programs
E
C -�
10
TASK DESCRIPTION
BUDGET,
Prior Nutrient Monitoring and Reporting, Coordination with RWQCB
Staff TMDL Implementation Plan Section 2.c
$ 197,809
Nutrient Monitoring and Data Collection (TMDL Implementation Plan
Section 2.c.1 Regional Nutrient Monitoring Program)
$ 120,000
pColiform
Shellfish Harvesting Study 1 st Year Cost (TMDL Implementation Plan
Section 3.a.ii.a
$ 250,000
Fecal Coliform TMDL 2002 -2003 Data Analysis (TMDL Implementation
Plan Section 3.a.ii.a
S 2,200
elenium Source Stud
S 9 900
Pro ram Com liance and Annual Re ortin
46 010
2002 -2003 Total
$ 625,919
E
C -�
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EXHIBIT C -2
2003 -2004 Budget for Newport Bay /San Diego Creek Watershed
Nutrient, Fecal Coliform and Toxics TMDL Programs
TMDL
"` TASK DESCRIPTION '
BUDGET.. '"
Nutrient
Algae Survey of San Diego Creek System (TMDL Implementation
Plan Section 2.c.1 Regional Nutrient Monitoring Program)
$ 50,000
Nutrient
Aerial Mapping of Algae Distribution (TMDL Implementation Plan
Section 2.c.1 Regional Nutrient Monitoring Program)
$ 5,000
Nutrient
Nutrient Monitoring and Data Collection (TMDL Implementation
Plan Section 2.c.1 Regional Nutrient Monitoring Pro ram )
$ 120,000
Nutrient
Nutrient BMP Evaluation Proposition 13 Grant matching funds
TMDL Implementation Plan Section 2.c.2
$ 100,000
Toxics
Selenium Source Stud
$ 43,400
Fecal
Coliform
Shellfish Harvesting Study 2nd Year Cost (TMDL Implementation
Plan Section 3.a.ii.a )
$ 203,000
Fecal
Coliform
Urban and Natural Source Identification and Characterization
TMDL Implementation Plan Section 3.a.ii.d
$ 75,000
Fecal
Coliform
Fecal Coliform TMDL 2003.2004 Data Analysis (TMDL
Implementation Plan Section 3.a.ii.a )
$ 2,200
All
Program Compliance and Annual Reporting
92,020
2003 -2004 Total
$ 690,620
.r1.�
• •
EXHIBIT C -3
Expenditures for Newport Bay /San Diego Creek Watershed
Nutrient, Fecal Coliform and Toxicx TMDL Programs
TOTAL $625,919 $690,620
' Funding formula based on weighted percentage of population and land area (see Exhibit
B)
0
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Entity
BudgetYear
2002 -2003
2003 -2004
Total Urban Component
$469,439
$517,965
—
$34;607
,�
$381184°
;Lake Forestt;
jNewpo'rt °Beach, rte,
r $3971i10n�,�r,Ym,
:;�y.<.$43�r1 +,53'�xa -�•�
j
tOrange
46111 r
'�4 J-yY t }'
: j �$5ti943t
'"Santa-Ana,
Tu t ln
*$39�278'
i�$43338"
�:K Y
County of °Orange`r'� }
= ,$5.5 252 S
`.$601036
t
FloodlC.o WOO i,E)i§ nct=
The Irvine Co. (Open Space)
$78,240
$86,328
IRWD Undefined Sources
$78,240
$86,328
TOTAL $625,919 $690,620
' Funding formula based on weighted percentage of population and land area (see Exhibit
B)
0
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Agreement No.D99 -12
1 AGREEMENT TO FUND NUTRIENT, FECAL COLIFORM AND TOXICS TOTAL MAXIMUM DAILY LOAD (TMDL)
STUDIES IN THE NEWPORT BAY WATERSHED
2
3 THIS AGREEMENT, for purposes of identification numbered D99 -128, is made and
4 entered into this 18th day of September, 2003, by and between the County of Orange
5 ( "COUNTY "), the Orange County Flood Control District ( "DISTRICT "), the City of Costa
Mesa ( "COSTA MESA "), the City of Irvine ( "IRVINE "), the City of Laguna Hills ( "LAGUNA
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 Cit y of Oran g e ( "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
13 WHEREAS, the California Regional Water Quality Control Board, Santa Ana Region
( "REGIONAL BOARD ") has adopted Resolution No. 98 -9, as amended by Resolution No. 98-
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
21 June 19, 2002, and the REGIONAL BOARD is developing implementation plans for each of
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
• a 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
4 with the TMDLs have been incurred prior to this agreement and that these costs are
incorporated in Exhibit C -1.
5
WHEREAS the PARTIES have reached agreement on a funding formula, which for the
6
COUNTY, DISTRICT and CITIES is based on the watershed land area and population applied
7 to the formula in the Amendment and Reinstatement of the National Pollutant Discharge
8 Elimination System Stormwater Implementation Agreement dated June 25, 2002, and which
9 for TIC and IRWD is based on a fixed twelve and one -half percent (12.5 %) contribution.
10 NOW, THEREFORE, in consideration of the foregoing, the PARTIES agree as follows:
11 Section 1. PURPOSE. This AGREEMENT is entered into for the purpose of funding
12 and performing studies, research, monitoring and the development of programs related
to the adopted TMDLs for nutrients, fecal coliform and toxics in San Diego Creek and
13
Newport Bay watersheds.
14
Section 2. TERM. The term of this AGREEMENT shall commence upon approval and
15
execution of this document by all signatories to this AGREEMENT and shall continue
16 until June 30, 20D8, unless sooner terminated as provided in Section 8.
17 Section 3. FUNDING. Exhibit A, which is attached and by this reference is made
18 a part hereof, presents the cost share allocations for the PARTIES.
19 The urban allocation in Exhibit A shall remain at seventy five percent (75 %) for the
20 duration of the AGREEMENT, but the individual cost shares for the COUNTY, DISTRICT and
21 CITIES will be revised once every year pursuant to the formula provided in Exhibit B,
which is attached hereto and made a part hereof, based on changes in watershed land
22
area and population. The percentage share shall be calculated by the COUNTY Public
23
Facilities and Resources Department, Environmental Resources Section from population,
24 land area and watershed area data. These calculations shall be completed by January 1
25 of each year and shall be included in the annual budget proposal. The respective
26 shares of IRWD and TIC shall remain at twelve and one half percent (12.5 %) each for
the duration of this AGREEMENT.
2
• • Agreement No.D99 -12
1 Section 4. PROGRAM BUDGET AND COSTS. The COUNTY shall submit a scope of work anc
2 a budget for the following fiscal year to each of the PARTIES by February 15 of each
3 year. The budget shall contain an explanation of any recommended program changes, an
4 estimate of all planned expenditures and an estimate of the payment required from eacl
PARTY for the following fiscal year.
5
The PARTIES shall be permitted to review and approve the program scope of work
6
and budget for the forthcoming year. Criteria for approval shall be affirmative
7 written responses from all of the PARTIES. The COUNTY and DISTRICT will constitute
8 one approving PARTY.
9 The first year tasks and expenditures for FY 02/03 are six hundred twenty -five
10 thousand and nine hundred nineteen dollars ($625,919) as shown in Exhibit C -1, which
11 is attached hereto and made a part hereof. The budget for the scope of work for FY
12 03/04 is six hundred ninety thousand and two hundred and twenty dollars ($690,220) as
shown in Exhibit C -2, which is attached hereto and made a part hereof. The COUNTY
13
shall be entitled to charge to the program all costs for direct labor, materials,
14
equipment and outside contract services for costs associated with carrying out the
15
approved scope of work. Recoverable costs will also include an overhead charge
16 calculated by the County Auditor - Controller which includes Public Facilities and
17 Resources Department overhead and County -wide cost allocation plan.
18 Section 5. PAYMENTS. Within 15 calendar days of.the effective date of this
79 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, whicl
21 is attached hereto and made a part hereof. Each of the PARTIES shall pay the deposit
within 45 calendar days of their respective receipt of the invoice.
22
The COUNTY shall prepare a fiscal year end accounting within 60 calendar days of
23
the end of the fiscal year. I£ 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.
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Agreement No.D99 -121
If the fiscal year end accounting results in the sum of the deposits exceeding costs
(net of interest earnings), the excess deposits will carry forward to reduce the
billings for the following year.
After the initial billing for the program, the COUNTY shall invoice each PARTY
for its annual deposit at the beginning (July 1) of each fiscal year. Each PARTY
shall pay the deposit within 45 calendar days of the date of the invoice. Each
PARTY'S deposit shall be based on it's prorated share of the approved annual budget,
reduced by its prorated share of any surplus identified in the prior fiscal year end
accounting.
Interest earned on the PARTIES' deposits will not be paid to the PARTIES, but
will be credited against the PARTIES' share of the program costs.
Upon termination of the program, a final accounting shall be performed by the
COUNTY. If costs remaining after the deduction of interest costs exceed the sum of
the deposits, the COUNTY shall invoice each PARTY for its prorated share of the
deficit. Each PARTY shall pay the invoice within 45 calendar days of the date of the
invoice. If the sum of the deposits, including interest, exceeds the costs, the
COUNTY shall reimburse to each PARTY its prorated share of the excess, within 45
calendar days of the final accounting.
Section 6. AMENDMENT. This AGREEMENT may be amended in writing only with the
unanimous written approval of the parties.
Section 7. LIABILITY. It is mutually understood and agreed that, merely by the
virtue of entering into this AGREEMENT, each PARTY neither relinquishes any rights nor
assumes any liabilities for its own actions or the actions of other PARTIES. It is
the intent of the PARTIES that the rights and liabilities of each Party shall remain
the same, while this AGREEMENT is in force, as it was before this AGREEMENT was made,
except as otherwise specifically provided in this agreement.
Section 8. TERMINATION. Any PARTY wishing to terminate its participation in
this AGREEMENT shall so notify all other PARTIES in writing by March 1 of any year.
Such termination shall be effective the following June 30. The terminating PARTY
shall be responsible for financial obligations hereunder to the extent incurred in
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0 Agreement No.D99 -12£
accordance with this agreement by the PARTY prior to the effective date of
termination. The balance of the PARTIES may continue in the performance of the terms
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
and IRWD shall never exceed twelve and one -half percent (12.5 %).
Section 9. AVAILABILITY OF FUNDS. The obligation of each PARTY is subject to
the availability of funds appropriated for this purpose, and nothing herein shall be
construed as obligating the PARTIES to expend or as involving the PARTIES in any
contract or other obligation for the future payment of money in excess of
appropriations authorized by law.
Section 10. NO THIRD PARTY BENEFICIARIES. Nothing expressed or mentioned in this
AGREEMENT is intended or shall be construed to give any person, other than the PARTIES
hereto, and any permitted successors, any legal or equitable right, remedy or claim
under or in respect of this AGREEMENT or any provisions herein contained. This
AGREEMENT and any conditions and provisions hereof is intended to be and is for the
sole and exclusive benefit of the PARTIES hereto and for the benefit of no other
person, agency or entity.
Section 11. REFERENCE TO CALENDAR DAYS. Any reference to the word "day" or
"days" herein shall mean calendar day or calendar days, respectively, unless otherwise
expressly provided.
Section 12. ATTORNEYS FEES. In any action or proceeding brought to enforce
for interpret any provision of this AGREEMENT, or where any provision hereof is
asserted as a defense, each PARTY shall bear its own attorneys' fees and costs.
Section 13. ENTIRE AGREEMENT. This AGREEMENT is intended by the PARTIES as
a final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the PARTIES hereto in respect of the
subject matter contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein. This AGREEMENT
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Agreement No.
Isupersedes all prior agreements and understandings between the PARTIES with respect t
such matter.
Section 14. SEVERABILITY. If any part of this AGREEMENT is held,
'.determined or adjudicated to be illegal, void, or unenforceable by a court of
competent jurisdiction, the remainder of this AGREEMENT shall be given effect to the
fullest extent reasonably possible.
Section 15. SUCCESSORS AND ASSIGNS. The terms and provisions of this
AGREEMENT shall be binding upon and inure to the benefit of the PARTIES hereto and
their successors and assigns.
Section 16. NOTICES. All notices required or desired to be given under
this AGREEMENT shall be in writing and (a) delivered personally, or (b) sent by
certified mail, return receipt requested or (c) sent by telefacsimile communication
followed by a mailed copy, to the addresses specified below, provided each PARTY may
change the address for notices by giving the other PARTIES at least ten (10) days
written notice of the new address. Notices shall be deemed received when actually
received in the office of the addressee or when delivery is refused, as shown on the
receipt of the U.S. Postal service, or other person making the delivery, except that
notices sent by telefacsimile communication shall be deemed received on the first
business day following transmission.
Director of Public Services
City of Costa Mesa
P.O. Box 1200
Costa Mesa, CA 92628 -1200
Director of Public Works
City of Irvine
P.O. Box 19578
Irvine, CA 92623 -9578
Director of Public Works
City of Laguna Hills
25201 Paseo de Alicia, #150
Laguna Hills, CA 92653
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Director of Public Works
City of Laguna Woods
24310 Moulton Pkwy, Ste K
P.O. Box 2220
Laguna Hills, CA 92653
Director of Public Works
City of Lake Forest
23161 Lake Center Dr., #100
Lake Forest, CA 92630
Director of Public Works
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92658
Director of Public Works
City of Orange
300 E. Chapman Ave
P.O. Box 449
Orange, CA 92866
Director of Public Works
City of Santa Ana
101 W. 4`h 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
isAgreement No.
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
land 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
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• Agreement No.D99 -12£
interpret this AGREEMENT, the sole and exclusive venue shall be a court of competent
jurisdiction located in Orange County, California, and the PARTIES hereto agree to and
do hereby submit to the jurisdiction of such court, notwithstanding Code of Civil
Procedure section 394. Furthermore, the PARTIES have specifically agreed, as part of
the consideration given and received for entering into this AGREEMENT, to waive any
and all rights to request that an action be transferred for trial to another county
under Code of Civil Procedure Section 394 or any other provision of law.
IN WITNESS WHEREOF, the PARTIES hereto have executed this AGREEMENT the day and
year first above written:
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COUNTY OF ORANGE
Date:
APPROVED AS TO FORM:
COUNTY MeL?
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 Supervis s of
Orange County, California
Date. � - 2,6 -b3
Agreement No.D99-12E
a political subdivi ion of the State of
California
By : 1 �1...
Chairman of the Board of Supervisors
ORANGE COUNTY FLOOD CONTROL DISTRICT
a body corporate and politic
By: 7"1 air,
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Chairman of the Board of Supervisors
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City Jerk /-17- City Attor4qfy IoCosta Mesa
CITY OF COSTA MESA
i By • �/
Ma
Date: ��� o 2003
APPROVED AS TO FO M:
ATTEST:
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Agreement No.D99-12E
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CITY OF IRVINE
Date: 2003
ATTEST:
wi s
By:
ayor
APPROVED .
FORM:
City 4tV(Jenby "of IrvAne
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Agreement No.D99-12
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CITY OF LAGUNA HILLS
Date: pC y 2003
ATTEST:
A
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Mary A. Ca son. City Clerk Lois E Jeffrey, C'�o2key
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AS TO FORM:
Cit ttorney of L una Woods
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CITY OF LAKE FOREST
Date: ,lune 17 2003
ATTEST:
City Cid
�/ff j
Agreement No.D99-12E
By:
Mayor
APPROVED AS TO FORM:
City Attorney of Lake Forest
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CITY OF NEWPORT BEACH
Date: ` / / 2003
ATTEST:
�ffo��
City Clerk
By:
APPR
Agreement No.D99-128
C/ty Attorney of Newport Beach
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NOMI
AGR -4326
C.25
Agreement No.D99-12�
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CITY OF SANTA ANA
Date:
ATTEST:
Cc��2
City Clerk
By:
City Manager
2003
APPROVED AS TO FORM:
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Dom City Attorney of Santa Ana
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Agreement No.D99-12E
Agreement No.D99-:
1 CITY OF TUSTIN
By:
2 Mayor
Date: 2003
3 APPROVED AS TO FORM:
ATTEST:
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THE IRVINE RANCH WATER DISTRICT
Date: 2003
Agreement No.D99-12E
By:
k6�-Z"'G
�;rzelor o?' kJAJ7r Qaa/c%
By
At rney for IRWD
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TITHE IRVINE COMPANY
Date:
Agreement No.D99-12E
2003 By:
MONICA FLORIAN
ITS: Group Senior Vice President
Environmental Affairs
By: A�Z,(,>
Patricia Frobes
ITS: General Counsel
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EXHIBIT A
COST SHARE ALLOCATIONS
FOR PROGRAM PARTICIPANTS
',,LAND USE
PROGRAM PARTICIPANTS
SHARE
Costa Mesa
Irvine
Laguna Hills
Laguna Woods
Lake Forest
Urban
75%
Newport Beach
Orange
Santa Ana
Tustin
County of Orange
O.C. Flood Control District
Open Space /Undefined Areas
12.5%
The Irvine Company
Open Space /Undefined Areas
12.5%
Irvine Ranch Water
District
EXHIBIT B
Cost Share for Urban Component
Based on NPDES Funding Formula
JURISDICTION
TOTAL
SQUARE
MILES °
SQ. MILES
WITHIN ,t
;WATERSHED
PERCENTAGE
OF CITYLAND
AREA IN,'
,WATERSHED'''
TOTAL -
POPULATION a
ESTIMATED
POPULATION
IN
WATERSHED,
WEIGHTEp
AVERAGE
SHARE OF
_COST (%)5
Costa Mesa
15.56
7.58
48.71
110,700
53,920
6.19
Irvine
46.15
45.07
97.66
157,500
153,821
25.13
Laguna Hills
6.63
1.17
17.66
33,800
5,968
0.79
Laguna Woods
3.05
1.91
62.62
16,800
10,521
1.34
Lake Forest
16.80
11.56
68.83
76,600
52,724
7.37
Newport Beach
27.74
16.61
59.88
72,500
43,411
8.33
Orange
23.33
1.6
6.86
132,900
9,115
1.15
Santa Ana
27.35
16.34
59.75
343,700
205,348
19.57
Tustin
11.09
11.09
100.00
69,100
69,100
8.37
County of
Orange
86.85
28.19
32.46
122,534
39,774
11.77
O.C. Flood
Control Districts
- --
- --
- --
10.00
TOTAL_
264.54;
1 41:12
1,1'36,134,.00. =
643 „702 , '^
100.00
' Source: NPDES Stormwater Permit Implementation Agreement D02 -048. Includes Land Area Deductions from agreement
exhibit A -1
' Percentage of City Land Area in Watershed = Square miles within Watershed/Total Square Miles ` 100
3Taken from NPDES budget, which is derived from California State Dept. of Finance data
"Estimated Population in Watershed = Total Population' Percentage of City Land Area in Watershed /100
'Weighted Average Share of Cost = ((Square Miles within Watershed/Total Square Miles of Watershed)'0.5) +((Estimated
Population in Watershed/Total Estimated Population in Watershed)'0.5) x 90
60range County Flood Control District assumes a flat 10 percent of the total
0 •
EXHIBIT C -1
2002 -2003 Budget for Newport Bay /San Diego Creek Watershed
Nutrient, Fecal Coliform and Toxics TMDL Programs
TMDL ;'
_ -_ TASK DESCRIPTION__ - _ _
BUDGET'
Nutrient
Prior Nutrient Monitoring and Reporting, Coordination with RWQCB
Staff TMDL Implementation Plan Section 2.c
$ 197,809
Nutrient
Nutrient Monitoring and Data Collection (TMDL Implementation Plan
Section 2.c.1 Regional Nutrient Monitoring Program)
$ 120,000
Fecal Coliform
Shellfish Harvesting Study 1st Year Cost (TMDL Implementation Plan
Section 3.a.ii.a )
$ 250,000
Fecal Coliform
Fecal Coliform TMDL 2002 -2003 Data Analysis (TMDL Implementation
Plan Section 3.a.ii.a )
$ 2,200
Toxics
Selenium Source Study
$ 9,900
All
ro ram Compliance and Annual Reporting
46 010
All
= 2002-2003 Total;
$ 625,919
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EXHIBIT C -2
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2003 -2004 Budget for Newport Bay /San Diego Creek Watershed
Nutrient, Fecal Coliform and Toxics TMDL Programs
TMDL
TASK, DESCRIPTION,
BUDGET
Nutrient
Algae Survey of San Diego Creek System (TMDL Implementation
Plan Section 2.c.1 Regional Nutrient Monitoring Program)
$ 50,000
Nutrient
Aerial Mapping of Algae Distribution (TMDL Implementation Plan
Section 2.c.1 Regional Nutrient Monitoring Program)
$ 5,000
Nutrient
Nutrient Monitoring and Data Collection (TMDL Implementation
Plan Section 2.c.1 Regional Nutrient Monitoring Program)
$ 120,000
Nutrient
Nutrient BMP Evaluation Proposition 13 Grant matching funds
TMDL Implementation Plan Section 2.c.2
$ 100,000
Toxics
Selenium Source Stud
$ 43,400
Fecal
Coliform
Shellfish Harvesting Study 2nd Year Cost (TMDL Implementation
Plan Section 3.a.ii.a )
$ 203,000
Fecal
Coliform
Urban and Natural Source Identification and Characterization
TMDL Implementation Plan Section 3.a.ii.d
$ 75,000
Fecal
Coliform
Fecal Coliform TMDL 2003 -2004 Data Analysis (TMDL
Implementation Plan Section 3.a.ii.a )
$ 2,200
All
Pro ram Compliance and Annual Reporting
92 020
-- — _ 2003 -2004 Total'
-$ 790,620' __
• •
EXHIBIT C -3
Expenditures for Newport Bay /San Diego Creek Watershed
Nutrient, Fecal Coliform and Toxicx TMDL Programs
Entity
Budget Year'
2002 -2003
2003 -2004
Total Urban Component'
Costa Mesa
Irvine
Laguna Hills
Laguna Woods
Lake Forest
Newport Beach
Orange
Santa Ana
Tustin
County of Orange
O.C. Flood Control District
$469,439
$517,965
$29,042
$32,044
$117,947
$130,139_
$3,710
$4,093'
$6,312
$6!,964
$34,607
$38,184
$39,110
$43,153
$5,386
$5,943
$91,850
$101,345
$39;278
$43,338
$55,252
$60,963
$46,944
$51,797
The Irvine Co. (Open Space)
$78,240
$86,328
IRWD Undefined Sources
$78,240
$86,328
TOTAL 1 1 $625,919 1 $690,620
' Funding formula based on weighted percentage of population and land area (see Exhibit
B)
(38)
BV THE CnY COUNCIL
Cff9 of NEWMFa BEACH
jh'i 2003
APPROV
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 15
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.
Cooperaive 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
LAND USE
COST
PROGRAM
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:
1 C�
Dave 'ff
Assistan City Manager
Attachments: Cooperative Agreement
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• Agreement No.D99 -12
AGREEMENT TO FUND NUTRIENT, FECAL COLIFORM AND TOXICS TOTAL MAXIMUM DAILY LOAD (TMDL)
STUDIES IN THE NEWPORT BAY WATERSHED
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
( "COUNTY "), the Orange County Flood Control District ( "DISTRICT "), the City of Costa
Mesa ( "COSTA MESA"), the City of Irvine ( "IRVINE "), the City of Laguna Hills ( "LAGUNA
HILLS "), the City of Laguna Woods ( "LAGUNA WOODS "), the City of Lake Forest ( "LAKE
FOREST "), the City of Newport Beach ( "NEWPORT BEACH "), the City of Orange ( "ORANGE "),
the City of Santa Ana ("SANTA ANA "), the City of Tustin ( "TUSTIN "), the Irvine Ranch
Water District ("IRWD ") and The Irvine Company ( "TIC "). The thirteen entities are
hereinafter sometimes jointly referred to as the "PARTIES" and individually as
"PARTY ". The cities are hereinafter sometimes jointly referred to as the "CITIES ".
WITNESSETH
WHEREAS, the California Regional Water Quality Control Board, Santa Ana Region
( "REGIONAL BOARD ") has adopted Resolution No. 98 -9, as amended by Resolution No. 98-
100 amending the Water Quality Control Plan for the Santa Ana River Basin to
incorporate a Nutrient TMDL for the Newport Bay /San Diego Creek Watershed on April 17,
1998 and Resolution 99 -10 amending the Water Quality Control Plan for the Santa Ana
River Basin to incorporate a TMDL for Fecal Coliform in Newport Bay on April 9, 1999
pursuant to the provisions of section 303(d) of the Clean Water Act; and,
WHEREAS, the United States Environmental Protection Agency (USEPA) has
established TMDLS for toxic pollutants, San Diego Creek and Newport Bay, California on
June 14, 2002, and the REGIONAL BOARD is developing implementation plans for each of
the toxic pollutants; and,
WHEREAS, the adopted TMDLs contain requirements for studies, monitoring and the
development of programs to attain TMDL reduction targets over a multi -year period;
and, .
WHEREAS, the PARTIES intend this AGREEMENT to provide for the performance of
studies, monitoring and development of programs and funding therefore for a period
through to June 30,' 2008 after which it is recognized that additional agreements may
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be necessary for further monitoring, studies and load reduction implementation
'projects over the period covered by the TMDLs; and,
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
incorporated in Exhibit C -1.
WHEREAS the PARTIES have reached agreement on a funding formula, which for the
COUNTY, DISTRICT and CITIES is based on the watershed land area and population applied
to the formula in the Amendment and Reinstatement of the National Pollutant Discharge
Elimination System Stormwater Implementation Agreement dated June 25, 2002, and which
for TIC and IRWD is based on a fixed twelve and one -half percent (12.58) contribution.
NOW, THEREFORE, in consideration of the foregoing, the PARTIES agree as follows:
Section 1. PURPOSE. This AGREEMENT is entered into for the purpose of funding
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
Newport Bay watersheds.
Section 2. TERM. The term of this AGREEMENT shall commence upon approval and
lexecution of.this document by all signatories to this AGREEMENT and shall continue
until June 30, 2008, unless sooner terminated as provided in Section 8.
Section 3. FUNDING. Exhibit A, which is attached and by this reference is made
a part hereof, presents the cost share allocations for the PARTIES.
The urban allocation in Exhibit A shall remain at seventy five percent (758) for the
duration of the AGREEMENT, but the individual cost shares for the COUNTY, DISTRICT and
CITIES will be revised once every year pursuant to the formula provided in Exhibit B,
which is attached hereto and made a part hereof, based on changes in watershed land
area and population. The percentage share shall be calculated by the COUNTY Public
Facilities and Resources Department, Environmental Resources Section from population,
land area and watershed area data. These calculations shall be completed by January i
of each year and shall be included in the annual budget proposal. The respective
shares of IRWD and TIC shall remain at twelve and one half percent (12.58) each for
the duration of this-AGREEMENT.
E
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• • Agreement No.D99 -128
1 Section 4. PROGRAM BUDGET AND COSTS. The COUNTY shall submit a scope of work and
2 a budget for the following fiscal year to each of the PARTIES by February 15 of each
3 year. The budget shall contain an explanation of any recommended program changes, an
4 estimate of all planned expenditures and an estimate of the payment required from each
PARTY for the following fiscal year.
5
The PARTIES shall be permitted to review and approve the program scope of work
6
and budget for the forthcoming year. Criteria for approval shall be affirmative
7 written responses from all of the PARTIES. The COUNTY and DISTRICT will constitute
8 one approving PARTY.
9 The first year tasks and expenditures for FY 02/03 are six hundred twenty -five
10 thousand and nine hundred nineteen dollars ($625,919) as shown in Exhibit C -1, which
11 is attached hereto and made a part hereof. The budget for the scope of work for FY
12 03/04 is six hundred ninety thousand and two hundred and twenty dollars ($690,620) as
shown in Exhibit C -2, which is attached hereto and made a part hereof. The COUNTY
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shall be entitled to charge to the program all costs for direct labor, materials,
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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 a part hereof. Each of the PARTIES shall pay the deposit
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within 45 calendar days of their respective receipt of the invoice.
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The COUNTY shall prepare a fiscal year end accounting within 60 calendar days of
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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.
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is Agreement No.D99 -12E
If the fiscal year end accounting results in the sum of the deposits exceeding costs
(net of interest earnings), the excess deposits will carry forward to reduce the
billings for the following year.
After the initial billing for the program, the COUNTY shall invoice each PARTY
for its annual deposit at the beginning (July 1) of each fiscal year. Each PARTY
shall pay the deposit within 45 calendar days of the date of the invoice. Each
PARTY'S deposit shall be based on it's prorated share of the approved annual budget,
reduced by its prorated share of any surplus identified in the prior fiscal year end
accounting.
Interest earned on the PARTIES' deposits will not be paid to the PARTIES, but
(will be credited against the PARTIES' share of the program costs.
Upon termination of the program, a final accounting shall be performed by the
COUNTY. If costs remaining after the deduction of interest costs exceed the sum of
the deposits, the COUNTY shall invoice each PARTY for its prorated share of the
deficit. Each PARTY shall pay the invoice within 45 calendar days of the date of the
invoice. If the sum of the deposits, including interest, exceeds the costs, the.
COUNTY shall reimburse to each PARTY its prorated share of the excess, within 45
calendar days of the final accounting.
Section 6. AMENDMENT. This AGREEMENT'may be amended in writing only with the
unanimous written approval of the parties.
Section 7. LIABILITY. It is mutually understood and agreed that, merely by the
virtue of entering into this AGREEMENT, each PARTY neither relinquishes any rights nor
assumes any liabilities for its own actions or the actions of other PARTIES. It is
the intent of the PARTIES that the rights and liabilities of each Party shall remain
the same, while this AGREEMENT is in force, as it was before this AGREEMENT was made,
except as otherwise specifically provided in this agreement.
.Section S. TERMINATION. Any PARTY wishing to terminate its participation in
this AGREEMENT shall so notify all other PARTIES in writing by March 1 of any year.
Such termination shall be effective the following June 30. The terminating PARTY
�Ishall be responsibl e. for financial obligations hereunder to the extent incurred in
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• Agreement NO.D99 -12E
accordance with this agreement by the PARTY prior to the effective date of
termination. The balance of the PARTIES may continue in the performance of the terms
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
and IRWD shall never exceed twelve and one -half percent (12.5W).
Section 9. AVAILABILITY OF FUNDS. The obligation of each PARTY is subject to
the availability of funds appropriated for this purpose, and nothing herein shall be
construed as obligating the PARTIES to expend or as involving the PARTIES in any
contract or other obligation for the future payment of money in excess of
appropriations authorized by law.
Section 10. NO THIRD PARTY BENEFICIARIES. Nothing expressed or mentioned in this
AGREEMENT is intended or shall be construed to give any person, other than the PARTIES
hereto, and any permitted successors, any legal or equitable right, remedy or claim
hinder or in respect of this AGREEMENT or any provisions herein contained. This
AGREEMENT and any conditions and provisions hereof is intended to be and is for the
(sole and exclusive benefit of the PARTIES hereto and for the benefit of no other
(person, agency or entity.
Section 11. REFERENCE TO CALENDAR DAYS. Any reference to the word "day" or
1"days" herein shall mean calendar day or calendar days, respectively, unless otherwise
expressly provided.
Section 12. ATTORNEYS FEES. In any action or proceeding brought to enforce
for interpret any provision of this AGREEMENT, or where any provision hereof is
asserted as a defense, each PARTY shall bear its own attorneys, fees and costs.
Section 13. ENTIRE AGREEMENT. This AGREEMENT is intended by the PARTIES as
la final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the PARTIES hereto in respect of the
subject matter contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein. This AGREEMENT
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supersedes all prior agreements and understandings between the PARTIES with respect to
such matter.
Section 14. SEVERABILITY. If any part of this AGREEMENT is held,
determined or adjudicated to be illegal, void, or unenforceable by a court of
competent jurisdiction, the remainder of this AGREEMENT shall be given effect to the
fullest extent reasonably possible.
Section 15. SUCCESSORS AND ASSIGNS. The terms and provisions of this
AGREEMENT shall be binding upon and inure to the benefit of the PARTIES hereto and
their successors and assigns.
Section 16. NOTICES. All notices required or desired to be given under
this AGREEMENT shall be in writing and (a) delivered personally, or (b) sent by
certified mail, return receipt requested or (c) sent by telefacsimile communication
followed by a mailed copy, to the addresses specified below, provided each PARTY may
change the address for notices by giving the other PARTIES at least ten (10) days
written notice of the new address. Notices shall be deemed received when actually
received in the office of the addressee or when delivery is refused, as shown on the
receipt of the U.S. Postal service, or other person making the delivery, except that
notices sent by telefacsimile communication shall be deemed received on the first
business day following transmission.
Director of Public Services
City of Costa Mesa
P.O. Box 1200
Costa Mesa, CA 92628 -1200
Director of Public Works
City of Irvine
P.O. Box 19578
Irvine, CA 92623 -9578•
Director of Public Works
'City of Laguna Hills
25201 Paseo de Alicia, #150
Laguna Hills, CA 92653
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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 _
• Agreement No.D99 -12£
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
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interpret this AGREEMENT, the sole and exclusive venue shall be a court of competent
jurisdiction located in Orange County, California, and the PARTIES hereto agree to and
do hereby submit to the jurisdiction of such court, notwithstanding Code of Civil
Procedure section 394. Furthermore, the PARTIES have specifically agreed, as part of
the consideration given and received for entering into this AGREEMENT, to waive any
and all rights to request that an action be transferred for trial to another county
under Code of Civil Procedure Section 394 or any other provision of law.
IN WITNESS WHEREOF, the PARTIES hereto have executed this AGREEMENT the day and
year first above written:
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• • Agreement No.D99-
COUNTY OF ORANGE
a political subdivision of the State of
California
Date: By:
Chairman of the Board of Supervisors
ORANGE COUNTY FLOOD CONTROL DISTRICT
a body corporate and politic
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
IDate:
By:
Chairman of the Board of Supervisors
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CITY OF NEWPORT BEACH
By:
Mayor
Date: 2003
APPROVED AS TO FORM:
ATTEST:
Agreement No.D99 -12f
City Clerk City Attorney of Newport Beach
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