HomeMy WebLinkAboutC-5164 - Cooperative Agreement to Fund Nutrient, Fecal Coliform and Toxics Total Maximum Daily Load ("TMDL") Programs in the Newport Bay WatershedAmendment #1 to Agreement No. D11-066
V FIRST AMENDMENT TO AGREEMENT TO FUND NUTRIENT, FECAL COLIFORM AND TOXICS
TOTAL MAXIMUM DAILY LOAD ("TMDL") PROGRAMS IN THE NEWPORT BAY WATERSHED
This first amendment ("Amendment") to the Agreement No. D11-066 ("Agreement") is made and
entered into this2-�` day of &- r x2015 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"), Irvine Company ("TIC"), and Lennar Homes of California, Inc. ("Lennar" ). The
fourteen entities are sometimes referred to individually as "Party" or collectively as the "Parties".
RECITALS
WHEREAS, the Parties entered into the Agreement on June 26, 2012 for a three year period
through June 30, 2015 to provide funding for the Nutrient, Fecal Coliform and Toxics TMDL programs in
the Newport Bay Watershed;
WHEREAS, Section 2 of the Agreement states that "(T)he AGREEMENT may be renewed for an
additional three (3) years running July 1, 2015 to June 30, 2018 with approval of the PARTIES"; and
WHEREAS, the Parties, through this Amendment, now desire to renew the Agreement for three
(3) additional years until June 30, 2018.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Parties hereby agree as follows:
I. Term. The term of Agreement shall be renewed for a period of three (3) years running July 1, 2015
to June 30, 2018.
2. Capitalized Terms. Any capitalized terms not defined herein shall have the meanings set forth in
the Agreement.
589994 1 of IS
Amendment #1 to Agreement No. Dl 1-066
3. Counterparts. This Amendment may be executed in two or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute but one and the same instrument.
4. Full Force. Except as expressly set forth herein, the Agreement shall remain unmodified and in
full force and effect.
589994 2 of 15
Amendment #1 to Agreement No. Dl1-066
COUNTY OF ORANGE,
a political subdivision of the State of
California n
Date:/6 �% ` �.— By // r
Director
OC Public Works
APPROVED AS TO FORM
COUNTY COUNSEL
i
B
Depu
Date: 6/ CA/ 113
589994 3 of3
10.2•)5
APPROVED AS TO FORM:
ATTEST:
v
City Clerk
589994
Amendment #1 to Agreement No. Dll-066
CITY OF COSTA MESA
By:
Public Serv? i ctor
City Attorney of Costa Mesa
4of15
Date: z% 1(111 JC)ICD
APPROVED AS TO FORM:
ATTEST:
City Clerk
Amendment 41 to Agreement No. DII-066
CITY OF IRVINE
B
Mayor
Steven S. Choi, PH.D.
Print Name
L�ok
Citv Attorne of Irvine
589994 5 of 15
Amendment 91 to Agreement No. D11-066
CITY OF LAGUNA HILLS
12 2)1
Date: Bv:
Mayor
APPROVED AS TO FORM:
ATTEST:
City Clerk
City Attorney of Lagun I iili3
589994 6 of 15
Date: lG— 2'9-
ATTEST:
Amendment #1 to Agreement No. Dll-066
CITY OF LAGUNA WOODS
Bv: (21 ulkt�- S 0-vt�_
Cynt "a S. Conners, Mayor
APPROVED AS TO FORM:
Yolie 71
tp v, Deputy City Clerk UIj 16 David B. Cosgrove, City- A orney of Laguna Woods
589994 7 of 15
Date: la' l i, - a 43 1 y
APPROVED AS TO FORM:
ATTEST:
City Clerk
Amendment #I to Agreement No. DI1-066
CITY OF LAKE FOREST
AzJ-
City Attortiey of Lake Forest
589994 8 of 15
Amendment #1 to Agreement No. DII-066
CITY OF NEWPORT BEACH
Date:_ U ` \IJ By: CJJ� J
Mayor
APPROVED AS TO FORM:
ATTEST:
City Attorney of Newport Beach
APPROVED AS TO FORM:
CrrYATTORN SOFFICE
Date:l i-Z]I S
B% r(f, r)
Aaron C. Harp, City Attorney
589994 9 of 15
Date: )5 ao L5
APPROVED AS TO FORM:
ATTEST:
Amendment #1 to Agreement No. DII-066
CITY OF ORANGE
By:
-nterim City Manager
City Clerk City AttoxHey of Orange
599994 10 0f 15
ATTEST:
MARIA D. HUIZAR
Clerk of the Council
APPROVED AS TO FORM:
SONIA R. CARVALHO
City Attorney
By:_.�
Jose'Sandoval
Chief Assistant City Attorney
CITY OF SANTA ANA
DAVID AV OS
City Manager ((//
APPROVED AS TO FORM:
ATTEST:
Amendment #1 to Agreement No. D11-066
CITY OF TUSTIN
Charles E. Puckett,
Mayor
C
W.
/In
David E. Kendig,
City Attorney
589994 12 of 15
Amendment #1 to .Agreement No. DI1-066
THE IRVINE RANCH WATER DISTRICT
Date: 1( -f( -y X011 By: �.
Name: Paul Cook
Title: General Manager
APPROVED AS TO FORM:
Date: 6/27/15 By:
Name: loan C. Arneson
Title: Legal Counsel, IP.WD
IRVINE COMPANY
589994 13 of 15
Amendment #1 to Agreement No. DI I-066
IRVINE COMPANY
Date: By:
i
Nam . Kr stip Flo d
Title: Vice President and
Associate General Counsel
By:
589994 14 of 15
Name: Paul P. Hernandez
Title: Vice President
Government Relations
Amendment #1 to Agreement No. D11-066
Lermar Homes of California,
0
By:
Name:
589994 IS ofis
Vice President
CITY OF
1
. � NEWPORT BEACH
-- City Council Staff Report
September 8, 2015
Agenda Item No. 10
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: David A. Webb, Public Works Director- (949) 644-3330,
dawebb @newportbeachca.gov
PREPARED BY: Mark Vukojevic, Deputy Public Works Director/City Engineer
PHONE: 949-644-3319
TITLE: Renewal of a Cooperative Agreement for Total Maximum Daily Load (TMDL)
Program Planning and Implementation for Nutrients, Fecal Coliform Bacteria and
Toxics in the Newport Bay Watershed
ABSTRACT:
Through a cooperative agreement, the City of Newport Beach is a participant in a program tasked with
implementing Total Maximum Daily Load (TMDL) planning programs, studies and monitoring in an effort to
reduce nutrients, fecal coliform bacteria and toxics within the urban runoff and storm water flows within the
Newport Bay Watershed.
RECOMMENDATION:
Authorize the Mayor and the City Clerk to execute Amendment No. 1 to Agreement D11-066, in
substantially the same form as the attached amendment, to extend the term and funding for implementing
TMDL planning programs, studies, and monitoring in the Newport Bay Watershed.
FUNDING REQUIREMENTS:
Funding requirements under this agreement are included in the "operations and maintenance" section of
the FY15/16 budget (Account No. 10080802-811011). The total overall TMDL budget for FY 2015-2016 is
forecast to be about $726,000, of which the City's share is expected to be in the range of 7.55% to 7.85%
or approximately $55,000.
DISCUSSION:
The original Cooperative Agreement was initiated in 2003 (Attachment B) and formed the TMDL
stakeholder committee. Committee membership is made up of staff from the County of Orange, Orange
County Flood Control District, Irvine Ranch Water District, Irvine Company, Lennar Homes of California,
and the Cities of Costa Mesa, Irvine, Laguna Hills, Laguna Woods, Lake Forest, Newport Beach, Orange,
Santa Ana and Tustin. The current Cooperative Agreement expired on June 30, 2015. The renewed
agreement would be for an additional 3-year term through June 30, 2018. The agreement includes a
funding formula of which the City's share is expected to be in the range of 7.55% to 7.85%.
10-1
Over the course of the last 12 years, this partnership's efforts bolstered and funded through this agreement
have dramatically improved water quality in Newport Bay. This includes a large reduction in nutrients such
as nitrogen (reduction of 67,000 lbs./yr. or 65% from 2003 to 2014) and phosphorus (reduction of 33,000
lbs./yr. or 68% from 2003 to 2014) with a corresponding reduction in algae blooms and improvement to
water clarity, as well as a significant reduction of the Fecal Coliform indicator bacteria resulting in fewer dry
weather beach closures and warnings. For the next 3-year term of this Cooperative Agreement, City staff
will work with the stakeholders to focus on completing current program documents dealing with nutrients,
bacteria and selenium. City staff also plans to work at having some pending water quality regulatory issues
such as trash and the new generation of pesticides assigned to the larger county-wide, National Pollutant
Discharge Elimination System (NPDES) storm water program rather than constrained to just the Newport
Bay watershed.
ENVIRONMENTAL REVIEW:
Staff recommends City Council find this action is not subject to the California Environmental Quality Act
("CEQA") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable
indirect physical change in the environment) and 15060(c)(3) (Architectural and Engineering services is not
a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14,
Chapter 3, because it has no potential for resulting in physical change to the environment, directly or
indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at
which the City Council considers the item).
ATTACHMENTS:
Description
Attachment A-Amendment One to Agreement No. D11-066
Attachment B -Agreement No. D11-066
10-2
ATTACHMENT A
Amendment#1 to Agreement No.D11-066
FIRST AMENDMENT TO AGREEMENT TO FUND NUTRIENT,FECAL COLIFORM AND TOXICS
TOTAL MAXIMUM DAILY LOAD("TMDL")PROGRAMS IN THE NEWPORT BAY WATERSHED
This first amendment("Amendment") to the Agreement No. Dll-066("Agreement")is made and
entered into this_day of 2015 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"),Irvine Company("TIC"),and Lennar Homes of California,Inc. ("Lennar). The
fourteen entities are sometimes referred to individually as"Party" or collectively as the"Parties".
RECITALS
WHEREAS, the Parties entered into the Agreement on June 26, 2012 for a three year period
through June 30,2015 to provide funding for the Nutrient, Fecal Coliform and Toxics TMDL programs in
the Newport Bay Watershed;
WHEREAS, Section 2 of the Agreement states that"(T)he AGREEMENT may be renewed for an
additional three(3)years running July 1,2015 to June 30,2018 with approval of the PARTIES";and
WHEREAS, the Parties, through this Amendment, now desire to renew the Agreement for three
(3)additional years until June 30,2018.
NOW THEREFORE,for good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Parties hereby agree as follows:
1. Term. The term of Agreement shall be renewed for a period of three (3)years running July 1,2015
to June 30,2018.
2. Capitalized Terms. Any capitalized terms not defined herein shall have the meanings set forth in
the Agreement.
589994 1 of 15 10-3
Amendment#1 to Agreement No.DI1-066
3. Counterparts. This Amendment may be executed in two or more counterparts,each of which shall
be deemed an original,but all of which together shall constitute but one and the same instrument.
4. Full Force. Except as expressly set forth herein, the Agreement shall remain unmodified and in
full force and effect.
589994 2 of 15 10_4
Amendment#1 to Agreement No. D11-066
COUNTY OF ORANGE,
a political subdivision of the State of
California
Date: By
Chairman of the Board of Supervisors
County of Orange,California
ORANGE COUNTY FLOOD CONTROL DISTRICT
a body corporate and politic
By:
Chairman of the Board of Supervisors
SIGNED AND CERTIFIED THAT A COPY OF THIS
AGREEMENT HAS BEEN DELIVERED TO THE
CHAIR OF THE BOARD PER G.C.Sec 25103,Reso 79-
1535
Attest:
Date: By
Robin Stieler
Interim Clerk of the Board
County of Orange,California
APPROVED AS TO FORM
COUNTY COUNSEL
By
Deputy
Date:
589994 3 of 15 10-5
Amendment#1 to Agreement No.Dll-066
CITY OF COSTA MESA
Date: By:
Mayor
APPROVED AS TO FORM:
ATTEST:
City Clerk City Attorney of Costa Mesa
589994 4 of 15 10-6
Amendment#I to Agreement No.DII-066
CITY OF IRVINE
Date: By:
Mayor
APPROVED AS TO FORM:
ATTEST:
City Clerk City Attorney of Irvine
589994 5 of 15 10-7
Amendment#1 to Agreement No.DII-066
CITY OF LAGUNA HILLS
Date: By:
Mayor
APPROVED AS TO FORM:
ATTEST:
City Clerk City Attorney of Laguna Hills
589994 6 of 15 10-8
Amendment#1 to Agreement No.Dll-066
CITY OF LAGUNA WOODS
i
Date: By:
Mayor
APPROVED AS TO FORM:
ATTEST:
City Clerk City Attorney of Laguna Woods
589994 7oj15 10-9
Amendment#1 to Agreement No.Dll-066
CITY OF LAKE FOREST
Date: By:
Mayor
APPROVED AS TO FORM:
ATTEST:
City Clerk City Attorney of Lake Forest
589994 8 of 15 10-10
Amendment#1 to Agreement No.D11-066
CITY OF NEWPORT BEACH
Date: By:
Mayor
APPROVED AS TO FORM:
ATTEST:
City Clerk City Attorney of Newport Beach
APPROVED AS TO FORM:
CITY AWORN�'S OFFICE
Date*
8 /Z f I s
B . (�r
Aaron C. Harp, City Attorney
589994 9 of 15 10-11
Amendment#1 to Agreement No.DII-066
CITY OF ORANGE
Date: By:
Mayor
APPROVED AS TO FORM:
ATTEST:
City Clerk City Attorney of Orange
589994 10 of is 10-12
Amendment#1 to Agreement No.Dll-066
CITY OF SANTA ANA
Date: By:
Mayor
APPROVED AS TO FORM:
ATTEST:
City Clerk City Attorney of Santa Ana
589994 11 of 15 10-13
Amendment#1 to Agreement No.DII-066
CITY OF TUSTIN
Date: By:
Mayor
APPROVED AS TO FORM:
ATTEST:
City Clerk City Attorney of Tustin
589994 12 of 15 10-14
t
t
Amendment#1 to Agreement No.Dll-066
THE IRVINE RANCH WATER DISTRICT
i
Date: By:
r
Name:
Title:
a
r
Date: By:
Name:
i
i
Title:
589994 13 of15 10-15
Amendment#1 to Agreement No.Dll-066
IRVINE COMPANY
Date: By:
Name:
Title:
Date: By:
Name:
Title:
589994 14 of 15 10-16
Amendment#1 to Agreement No.Dl1-066
Lennar Homes of Califomia,
Date: By:
Name:
Title:
Date: By:
Name:
Title:
589994 15 of 15 10-17
ATTACHMENT B
Agreement No. Dll-066
AGREEMENT TO FUND NiTI'RIENT,FECAL COLIFORM AND TOXICS TOTAL MAXIMUM DAILY
LOAD("TMDL") PROGRAMS IN THE NEWPORT BAY WATERSHED
THIS AGREEMENT,for purposes of identification numbered DI1-066,referred.to hereinafter as
"AGREEMENT",is made and entered into this a 64l�day of la N'E 201?,by and between the
County of Orange("COUNTY"), the Orange County Flood Control District("DISTRICT"), the City of
Costa Mesa("COSTA MESA"),the City'ofIrvine ("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"), die 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, Bu.("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." The CITIES,COUNTY and DISTRICT are
hereinafter sometimes jointly referred to as the"MUNICIPAL PARTIES." Thirteen entities (all entities
except for LENNAR)are sometimes jointly ieferred 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 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 Envircu nental Protection Agency (USEPA)has established TMDLs
for toxic pollutants, for 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,
Page I of 22
10-18
Agreement No.D1.1-066
WHEREAS, the adopted TMDLs contain requirements for studies,mordtoring,and the
development of programs to attain TMDL reduction targets over a multi:year period; and,
WHEREAS, these TMDLs are included in the National Pollutant Discharge Elimination System
("NPDES)Municipal Permit Order No. R8-2009-0030 that require a cooperative watershed program;
and,
WHEREAS, the ORIGINAL PARTIES entered into.Agreement No. D99-128 on
September 18,2003 and subsequent amendments on July 5,2006,March 29,2008 and July 8,2010 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 intend this AGREEMENT as a successor to Agreement No. D99-128 to
provide for the performance of studies,research,monitoring,development and/or revision of programs
related to the adopted TMDLs for nutrients, fecal coliform and.toxics and current and future Clean Water
Act§303(d)listings,as well as planning,permitting, design,construction,and maintenance of TMDL
pilot projects("PILOT PROJECTS");and
WHEREAS, the PARTIES have reached agreement on a funding formula which is shown in
Exhibit A; and
WHEREAS,in the event that long term watershed funding is secured prior to AGREEMENT
expiration, the PARTIES intend to amend the AGREEMENT to incorporate this funding through revised
cost share allocations;and,
WHEREAS, it is recognized that regulatory compliance gained through the activities herein
apply to all PARTIES equally,and
WHEREAS, it is recognized that additional compliance efforts may be necessary and the
PARTIES may choose to fund projects under separate agreements;and
NOW,THEREFORE, in consideration of the foregoing, the PARTIES agree as follows.
Page 2 of22
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Agreement No. D11-066
Section 1. PURPOSE. This AGREEMENT is entered into for the purpose of funding and.
performing program activities related to the adopted TMDLs for nutrients,fecal coliform, and toxics and
current and future Clean Water Act§303(d) listings in the Newport Bay Watershed.
Section 2. TERM. The term of this AGREEMENT shall commence upon approval and execution
of this AGREEMENT by all PARTIES or July 1,2012, whichever is later, and shall continue until.June 30,
2015. The AGREEMENT may be renewed for an additional three(3)year term running July 1, 2015 to
June 30,2018 with approval of the PARTIES.
Section 3. PROGRAM WORK PLAN. The COUNTY shall work in concert with all PARTIES to
develop a work plan for the following fiscal year. The work plan for the upcoming fiscal year shall be
submitted to each of the PARTIES by December 15 of each year.The work plan may designate a PARTY
as a lead other than the COUNTY for a work plan task(s).
Section 4. BUDGET AND COSTS.The COUNTY shall work in concert with all the PARTIES to
develop a budget for the following fiscal year. Budgeted amounts for PILOT PROJECT(S)shall not exceed
$200,000 for all pilot projects in any one fiscal year. The budget for the upcoming fiscal year shall be
submitted to each of the PARTIES by December 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 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. WORK PLAN TASK LEAD REIMBURSEMENT. If a PARTY is designated as a task
lead, upon written authorization from COUNTY, the PARTY shall invoice the COUNTY for authorized
expenses up to the approved budget amount for the work plan task.
Section 6. APPROVALS AND ADJUSTMENTS.The PARTIES shall be permitted to review and
approve the budget and program work plan for the forthcoming year,review work products, and
provide direction f6r performance of the work plan. The PARTIES shall be notified of the intent to issue
Page 3 of 22
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Agreement No. DII-066
contracts to perform the program work plan,shall be permitted to participate bh the preparation and
review of the scope of work for such contracts,and to serve on the committee evaluating consultant
qualifications/proposals subject to the requirements of the County of Orange Contract Policy Manual.
Criterion for approval of the work plan and budget shall be affirmative responses from PARTIES
representing ninety percent(90%) of the Cost Share Percentage in Exhibit A and 12 of the 1.3 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 as rendering an affirmative response.
Criterion for approval of adjustments to scopes of work shall be the same as for the approval of
the work plan and budget,
Section 7. FUNDING COST SHARE ALLOCATIONS. Exhibit A,which is attached to this
AGREEMENT and by this reference is made a part hereof, presents the funding formula and the fiscal
year 2012-13 cost share percentages for the PARTIES. Land area calculations will be reviewed and
revised as needed. A request for information documenting changes inland area will be made to the
PARTIES each year by November 1.
Section 8. PAYMENTS.The COUNTY shall invoice each PARTY for its annual deposit at the
beginning 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 AGREEMENT.
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 yea. If the fiscal year end accownting results in costs(net
of interest earnings)exceeding the sum of the deposits, and the COUNTY has notified and obtained
Page 4 of 22
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Agreement No. D11-066
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 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 9. ADDITIONAL PARTIES. It is recognized that there may be other parties who wish to
participate in and provide funding for the activities described in this AGREEMENT. Nothing in this
AGREEMENT is intended to preclude additional participants being added by written amendment as
parties to this AGREEMENT pursuant to Section 10. Cost allocations for the additional parties and
PARTIES will be revised based on the funding formula in Exhibit A.
Section 10. AMENDMENT.This AGREEMENT may be amended in writing only with the
unanimous written approval of the parties.
Section 11. LIABILITY. It is mutually understood and agreed that,merely by the virtue of
enteringinto 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
Page 5 of 22
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Agreement No. D1.1-066
Section 12. TERMINATION. Any PARTY wishing to terulinate 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 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 13. 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 obligati.ng
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 bylaw.
Section 14. 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 15. 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 16. 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 17. ENTIRE AGREEMENT. ]'his 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
Page 6 of 22
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Agreement No. D11-066
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 supersedes all prior agreements and understandings between the PARTfES with respect to
such matter.
Section 18. SEVERABMITY. If any part of this AGREEMENT is held, determined or adjudicated
to be iLlegal, void,or unenforceable by a court of competentjurisdiction, the remainder of this
AGREEMENT shall be given effect to the fullest extent reasonably possible.
Section 19. 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 20. NOTICES. All notices required or desired to be given under this AGREEMENT shall
be i i writing and (a)delivered personally,or(b)sent by certified mail, return receipt requested or(c) sent
by electronic mail 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 electronic mail 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 92628-1260
Facsimile: (714)75.4-5028
Director of Community Development
City of Irvine
P.O. Box 19578
Irvine,CA 92623-9578
Facsimile: (94.9)724-6440
Director of Public Services
City of Laguna Hills
24035 El Toro Road
Laguna Hills,CA 92653
Facsimile: (949) 707-2633
Page 7 of 22
10-24
Agreement No.D11-066
Director of Community Development
City of Laguna Woods
24264 EI Toro Road
Laguna Woods CA 92637
Facsirile: (949)639-0591
Director of Public Works
City of Lake Forest
25550 Com nercentre Dr. Suite 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 Ana
101 W.4th St.
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,OCPublic Works
County of Orange
300 N.Flower Street
Santa Ana, CA 92702-4048
Facsimile: (714)834-2395
Director, Water Quality
Lvine Ranch Water District
3512 Michelson Drive
Irvine, CA 9271.2
Facsimile:(949)453-1228
Vice President of Environmental Affairs
The Irvine Company
550 Newport Center
Page 8 of 22
10-25
Agreement No. D11-066
Newport Beach, CA 92658-8904
Facsimile: (949)720-2448
Vice President of Community Development
Lennar
25 Enterprise,Ste 300
Aliso Viejo,CA 92656
Facsimile: (949)349-0394
Section 21. EXECUTION OF AGREEMENT.This AGREEMENT may be executed in counterpart
and the signed counterparts shall constitute a single instrument.
Section 22. 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 competentjurisdiction 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:
Page 9 of 22
10-26
Agreement No. D11-066
COUNTY OF ORANGE,
a political subdivision of the State of
California
Date: l! a% _' 2 By:_ -
Chairman of the Board of tipervisors
Date: 6 — AL— I i,
APPROVED AS TO FORM
CC
By
Da
ORANGE COUNTY FLOOD CONTROL DISTRICT
a body corporate and politic
By:
Chairman of the Board o upervisors
SIGNED AND CERTIFIED THAT A COPY OF THIS
AGREEMENT HAS BEEN DELIVERED TO THE
CHAIR OF THE BOARD.
EY
Susan Novak
Clerk of the Board of Supervisors of
Orange County, California
Page 10 of 22
Date: —7— ZO —17 --
APPROVED
ly
APPROVED AS TO FORM:
ATTEST:
City Clerk
CITY OF COSTA MESA
By:
Mayor
1
Ci Atto ney of osta Nhsa
Page 11 of 22
Agreement No. D11-066
�1 -3 -1 L
APPROVED AS TO FORM:
ATTEST:
City Clerk
CITY OF IRVINE
By:
Agreement No. D11-066
City Attorney o Irvine
Page 12 of 22
Date: 20�
ATTEST:
l- rl
Peg a ----
City Clerk
CITY OF LAGUNA HILLS
Melo y arru
Ma or
APPROVED AS TO FORM:
Gregory E. Simonian
City Attorney of Laguna Hills
Page 13 of 22
Agreement No. D11-066
Date: (, " 14 IL
APPROVED AS TO FORM:
ATTEST:
LUOL
Yolie Trip , Deputy City Clerk
Agreement No. D11-066
CITY OF LAGUNA WOODS
Cynthia S. Conners, Mayor
David B. Cosgrove, City Attorney of Laguna Woods
Page 14 of 22
Date: & - / q • o2y / e;,
APPROVED AS TO FORM:
ATTEST:
Agreement No. D11-066
CITY OF LAKE FOREST
City Clerk I-" City ttorney of Lake Forest
Page 15 of 22
Date: :z
APPROVED AS TO FORM:
ATTEST:
AP4 d, kyw,—/
City Clerk
Agreement No. D11-066
CITY OF NEWPORT BEACH
By. r—
Mayor
City Attorney of Newport Beach
001
Page 16 of 22
Date: v /�
APPROVED AS TO FORM:
ATTEST:
CITY OF ORANGE
10
Agreement No. D11-066
City Cler City Atto Zey of Orange
CITY OF SANTA ANA
Page 17 of 22
CITY OF SANTA ANA
Date: JUL 1. 8 201z
ATTEST:
Maria D. Huizar
Clerk of the Council
MENDED F R APPROVAL:
.,
Raul Godinez, II
Executive Director - PWA
APPROVED AS TO FORM:
%,S
ee,
L ura Sheedy
Assistant City Attorney
By:
(J2L�, -
Paul M. Walters
City Manager
Page 18 of 22
Agreement No. D11-066
Date: 717 --IA
APPROVED AS TO FORM:
ATTEST:
City Clerk
Agreement No. Dll-066
{ar
Ity Attorney of Tustin
Page 19 of 22
Date: 7(. X12_
APPROVED AS TO FORM:
Agreement No. D11-066
IRVINE RANCH WATER DISTRICT
By: z< 4C4 -
Name: Paul Cook
Title: General Manager
Date: G By: Z/"* 1�4- -
LeXal Counsel - IRWD
Page 20 of 22
Agreement No. Dll-066
THE IRVINE COMPANY
Date: Zi By:
Name: ristine Flo d
Tie --Vice Presiden d
Aociate General Counsel
�-
Date: By:
Name: Paul P. Hernandez
Title: Vice President
Government Relations
Page 21 of 22
Agreement No. D11-066
Lennar Homes of California, Inc.
A California corporation
Date: Z-6- /- By:
Page 22 of 22
Agreement No. DII-066
EXHIBIT A
FUNDING FORMULA AND FISCAL 201.2-1.3 COST SHARE PERCENTAGES
PFRCENCAGE WEIGHTED ESTIMATED WEIGHTED FISCAL YEAR
TOTAL SQ.MULES NET OF CITY LAND AREA
TOTAL POPULATION NET LAND 2012-13 COST
JURISDICTION SQUARE WITHIN RSH LAND LAND AREA POPULATION' IN e` AREA SHARE
ivIILL^Sr WATERSHED' AR$Az IN WATERSHFD5 POPULATION SHARF' PERGFNTAGESB
WATERSFIE^D3 SHARE
Costa Mesa 15.83 7.65 7,54 48.33 110,1.46 53,229 122 2.06 4.28
County of
Oran e 175.23 16.68 14.25 9.52 121,488 11,564 3.1.6 3.89 7.05
Irvine 65.98 65.80 50.82 99.73 219,156 218,558 12.58 1.3.89 26.46
La uIla Hills 6.64 1.18 1.16 17.77 30,410 5,404 0.27 0.32 0.59
Laguna V%100ds 3.31 1.88 1.88 56.80 1.6,224 9,2"15 0.45 0.51 0.96
Lake forest 16.78 11.58 9.18 69.01 77,490 53,476 2.68 2.51 5.19
New port Beach 24.74 17.63 14.58 71.26 85,376 60,840 3.56 3.98 7.55
Orange 25.781 1.88 1.73 7.29 136,995 9,990 0.47 0.47 0.94
Santa Ana 27.351 16.40 16.17 59.96 325,228 195,0181 6.35 1 4.42 10.77
Tustin 11.14 11.141 10.49 1,00.001 75,781 1 75,781 1 3.191 2.871 6.06
OCPC District --- - --- --- 10.00
IRW D 10.00
Irvine Co. 1.0.00
Len na i -- --- --- --- --- 0.15
355.49 151.82 127.80 1,198,294 693,076 34.925 34.925 100.00
' Source: OC Public Works,OC Survey Section May 2011
2 NET LAND AREA=Square miles within Watershed-Extractions for NPDES,Federal,Slate,County,IRWD,Irvine Company and Lennar
'PERCENTAGE OF CITY LAND AREA IN WATERSHED=Square miles within Watershed/Total Square Miles" 100
'Source: Slate of California,Department of Finance,E-1 Population Estimates for Cities.Counties and the Slate with Annual Percentage Change(May 2019 as updated)
a ESTIMATED POPULATION IN WATERSHED=Total Population'Percentage of City Land Area in Watershed/100
e WEIGHTED LAND AREA&POPULATION SHARE=((Square Miles within Watershed(Total Square Miles of Watershed)'0.5)+((Estimated Population in Watershed/Total Estimated
Population in Watershed)'0.5)z 34.925
'WEIGHTED NET LAND AREA SHARE =Net Land ArealTolal Net Land Area'34.925
e COST SHARE PERCENTAGE=Weighted Land Area.&Population Share+Weighted Net Land Area Share
Page A-1
10-40
AY O R A N G E C O U N T Y
L %C Pub11c ®rks
Our Community. Our Commitment.
August 24, 2012
Leilani I. Brown, City Clerk
City of Newport Beach
3300 Newport Blvd, P.O. Box 1768
Newport Beach, CA 92658 -8915
RE: Agreement D11 -066
Dear Ms Brown:
Please find attached one fully- executed copy of Agreement No. D11 -066.
Ignacio G. Ochoa, P.E., Interim
Director
300 N. Flower Street
Santa Ana, CA
P.O. Box 4048
Santa Ana, CA 92702 -4048
Telephone: (714) 834 -2300
Fax: (714) 967 -0896
If you require any additional information, please contact Beatrice Musacchia at (714) 955 -0612.
U ro of
Environmental Resources
Enclosure: Agreement D11 -066
T
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1
T <CD
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00
Agreement No. DII -066
AGREEMENT TO FUND NUTRIENT, FECAL COLIFORM AND TOXICS TOTAL MAXIMUM DAILY
LOAD ( "TMDL ") PROGRAMS IN THE NEWPORT BAY WATERSHED
THIS AGREEMENT, for purposes of identification numbered D11 -066, referred to hereinafter as
"AGREEMENT ", is made and entered into this 2,64 day of J iA NV- _, 20121 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, hac.( "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." The CITIES, COUNTY and DISTRICT are
hereinafter sometimes jointly referred to as the "MUNICIPAL PARTIES." 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 17,199S 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, for 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,
Page I of 22
Agreement No. D11 -066
WHEREAS, the adopted TMDLs contain requirements for studies, mordtoring, and the
development of programs to attain TMDL reduction targets over a multi-year period; and,
WHEREAS, these TMDLs are included in the National Pollutant Discharge Elimination System
( "NPDES ") Municipal Permit Order No. R8 -2009 -0030 that require a cooperative watershed program;
and,
WHEREAS, the ORIGINAL PARTIES entered into Agreement No. D99 -128 on
September 18, 2003 and subsequent amendments on July 5, 2006, March 29, 2008 and July 8, 2010 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 intend this AGREEMENT as a successor to Agreement No. D99 -128 to
provide for the performance of studies, research, monitoring, development and /or revision of programs
related to the adopted TMDLs for nutrients, fecal coliform and.toxics and current and future Clean Water
Act §303(d) listings, as well as plane ng, permitting, design, construction, and maintenance of TMDL
pilot projects ( "PILOT PROJECTS'); and
WHEREAS, the PARTIES have reached agreement on a funding formula which is shown in
Exhibit A; and
WHEREAS, in the event that long term watershed funding is secured prior to AGREEMENT
expiration, the PARTIES intend to amend the AGREEMENT to incorporate this funding through revised
cost share allocations; and,
WHEREAS, it is recognized that regulatory compliance gained through the activities herein
apply to all PARTIES equally, and
WHEREAS, it is recognized that additional compliance efforts may be necessary and the
PARTIES may choose to fund projects under separate agreements; and
NOW, THEREFORE, in consideration of the foregoing, the PARTIES agree as follows.
Page 2 of 22
Agreement No. Dl1 -066
Section 1. PURPOSE. This AGREEMENT is entered into for the purpose of funding and
performing program activities related to the adopted TMDLs for nutrients, fecal coliform, and toxics and
current and future Clean Water Act §303(d) listings in the Newport Bay Watershed.
Section 2. TERM. The term of this AGREEMENT shall commence upon approval and execution
of this AGREEMENT by all PARTIES or July 1, 2012, whichever is later, and shall continue until June 30,
2015. The AGREEMENT may be renewed for an additional three (3) year term running July 1., 2015 to
June 30, 2018 with approval of the PARTIES.
Section 3. PROGRAM WORK PLAN. The COUNTY shall work in concert with all PARTIES to
develop a work plan for the following fiscal year. The work plan for the upcoming fiscal year shall be
submitted to each of the PARTIES by December 15 of each year. The work plan may designate a PARTY
as a lead other than the COUNTY for a work plan task(s).
Section 4. BUDGET AND COSTS. The COUNTY shall work in concert with all the PARTIES to
develop a budget for the following fiscal year. Budgeted amounts for PILOT PROJECT(S) shall not exceed
$200,000 for all pilot projects in any one fiscal year. The budget for the upcoming fiscal year sha 11 be
submitted to each of the PARTIES by December 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 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. WORK PLAN TASK LEAD REIMBURSEMENT. If a PARTY is designated as a task
lead, upon written authorization from COUNTY, the PARTY shall invoice the COUNTY for authorized
expenses up to the approved budget amount for the work plan task.
Section 6. APPROVALS AND ADJUSTMENTS. The PARTIES shall be permitted to review and
approve the budget and program work plan for the forthcoming year, review work products, and
provide direction for performance of the work plan. The PARTIES shall be notified of the intent to issue
Page 3 of 22
Agreement No. Dll -066
contracts to perform the program work plan, shall be permitted to participate in the preparation and
review of the scope of work for such contracts, and to serve on the committee evaluating consultant
qualifications /proposals subject to the requirements of the County of Orange Contract Policy Manual.
Criterion for approval of the work plan and budget shall be affirmative responses from PARTIES
representing ninety percent (90 %) of the Cost Share Percentage in Exhibit A and 1.2 of the 1.3 PARTIES.
The COUNTY and DISTRICT will constitute one approving PARTY. Any PARTY not providing a
response by July 1.5 of each year shall be considered as rendering an affirmative response.
Criterion for approval of adjustments to scopes of work shall be the same as for the approval of
the work plan and budget.
Section 7. FUNDING COST SHARE ALLOCATIONS. Exhibit A, which is attached to this
AGREEMENT and by this reference is made a part hereof, presents the funding formula and the fiscal
year 2012 -13 cost share percentages for the PARTIES. Land area calculations will be reviewed and
revised as needed. A request for information documenting changes in land area will be made to the
PARTIES each year by November 1.
Section 8. PAYMENTS. The COUNTY shall invoice each PARTY for its annual deposit at the
beginning 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 AGREEMENT.
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
Page 4 of 22
Agreement No. DII -066
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 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 9, ADDITIONAL PARTIES. It is recognized that there may be other parties who wish to
participate in and provide funding for the activities described in this AGREEMENT. Nothing in this
AGREEMENT is intended to preclude additional participants being added by written amendment as
parties to this AGREEMENT pursuant to Section 10. Cost allocations for the additional parties and
PARTIES will be revised based on the funding formula in Exhibit A.
Section 10. AMENDMENT. This AGREEMENT may be amended in writing only with the
unanimous written approval of the parties.
Section 11. 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 othenvise specifically provided in this agreement.
Page 5 of 22
Agreement No. D11 -066
Section 12. 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 fine 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 termination. The balance of the PARTIES may continue in tlne 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 13. 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 14. 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 15. 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 16. 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 17. 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
Page 6 of 22
Agreement No. D11 -066
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 supersedes all prior agreements and understandings between the PARTIES with respect to
such matter.
Section 18. SEVERABILITY. If any part of this AGREEMENT is held, determined or adjudicated
to be illegal, void, or unenforceable by a coot of competentjurisdiction, the remainder of this
AGREEMENT shall be given effect to the fullest extent reasonably possible.
Section 19. 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 20. 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 electronic mail 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 electronic mail 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) 75.4-5028
Director of Community Development
City of Irvine
P.O. Box 19578
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
Page 7 of 22
Agreement No. DI1 -066
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. Suite 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 Ana
101 W. 4th St.
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, 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 Drive
Irvine, CA 92712
Facsimile: (949) 453 -1228
Vice President of Environmental Affairs
The Irvine Connpany
550 Newport Center
Page 8 of 22
Agreement No. Dll -066
Newport Beach, CA 92658 -8904
Facsimile: (949) 720 -2448
Vice President of Community Development
Lennar
25 Enterprise, Ste 300
Aliso Viejo, CA 92656
Facsimile: (949) 349 -0394
Section 21. EXECUTION OF AGREEMENT. This AGREEMENT may be executed in counterpart
and the signed counterparts shall constitute a single instrument.
Section 22. 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:
Page 9 of 22
Agreement No. Dll -066
COUNTY OF ORANGE,
a political subdivision of the State of
California
By: 9K d
Chairman of the Board of upervisors
ORANGE COUNTY FLOOD CONTROL DISTRICT
a body corporate and politic
By:
Chairman of the Board o `Supervisors
SIGNED AND CERTIFIED THAT A COPY OF THIS
AGREEMENT HAS BEEN DELIVERED TO THE
CHAIR OF THE BOARD.
053% Date: % - ab- i By 1 �
Susan Novak
APPROVED AS TO FORM
COUNTY COUNSEL
E
Date:
Clerk of the Board of Supervisors of
Orange County, California
Page 10 of 22
Zo -1'v
APPROVED AS TO FORM:
ATTEST:
City Clerk
Agreement No. D11 -066
CITY OF COSTA MESA
Ci Attorney of Costa Nksa
Page 11 of 22
APPROVED AS TO FORM:
ATTEST:
City Clerk
CITY OF IRVINE
M
Agreement No. Dll -066
City Attorney o Irvine
Page 12 of 22
Date: Okt,4,tl 01
ATTEST:
Pegg}/ �,; / --
City Cleric /
Agreement No. D11 -066
CITY OF LAGUNA HILLS
7
Melo y Carru
Ma or
APPROVED AS TO FORM:
DD i-
Gregory E. Simonian
City Attorney of Laguna Hills
Page 13 of 22
Ln -/?, IL
APPROVED AS TO FORM:
ATTEST:
Yolie Tripply, Deputy City Clerk
iJ
Agreement No. D7.1 -066
CITY OF LAGUNA WOODS
Cynthia S. Conners, Mayor
(�3� 6 o ;q -
David B. Cosgrove, City Attorney of Laguna Woods
Page 14 of 22
Date: Ql • a� t' �•
FA U r I TiW M icy I C s I �i7 i� 1 lu
ATTEST:
Agreement No. D11 -066
CITY OF LAKE FOREST
City Clerk L. City ttorne�' y of Lake Forest
Page 15 of 22
Date: 11-z-
11
APPROVED AS TO FORM:
ATTEST:
City Clerk
CITY OF NEWPORT BEACH
By. < 4 ° r—
Mayor
City Attorney of Newport Beach
Page 16 of 22
Agreement No. D11 -066
Date: / °
APPROVED AS TO FORM:
ATTEST:
CITY OF ORANGE
G3
Agreement No. Dll -066
City Clerl City Attofirey of Orange
CITY OF SANTA ANA
Page 17 of 22
JUL 1 8 2,M9,
By
Paul M. Walters
City Manager
ATTEST:
Maria D. Huizar J
Clerk of the Council
Raul Godinez, II
Executive Director - PWA
APPROVED AS TO FORM:
Cl.
jl
ltP
L, ura /
Assistant City Attorney
Page 18 of 22
Agreement No. D11 -066
Date:
APPROVED AS TO FORM:
ATTEST:
City Clerk
Agreement No. Dll -066
ty Attorney of Tustin
Page 19 of 22
Agreement No. Dll -066
IRVINE RANCH WATER DISTRICT
Date: z(o',}Zt� Z.�IZ. By: ��
Name: Paul Cook
Title: General Manager
APPROVED AS TO FORM:
Date: G' :2-0- /Z By:
Page 20 of 22
Agreement No. Dll -066
THE IRVINE COMPANY
Date: �°�'/ / L By:
Name: ristine Flo d
Tit e• Vice Presiden d
Asociate General Counsel
C� ( l SI la-
Date:
By:
Name: Paul P. Hernandez
Title: Vice President
Government Relations
Page 21 of 22
Agreement No. Dll -066
Lennar Homes of California, Inc.
A California corporation
Date: By:
Page 22 of 22
Agreement No. D11 -066
EXHIBIT A
FUNDING FORMULA AND FISCAL 2012 -13 COST SHARE PERCENTAGES
JURISDICTION
TOTAL
SQUARE
MILES'
SQ. MILES
WITHIN
WATERSHED'
NET
LAND
AREA2
PERCENTAGE
OF CITY
LAND AREA
IN
WATERSI-IED3
TOTAL
POPULATION4
ESTIMATED
POPULATION
IN
WATERSHEDS
WEIGHTED
LAND AREA
&
POPULATION
SHARE6
WEIGHTED
NET LAND
AREA
SHARE'
FISCAL YEAR
2012 -13 COST
SHARE
PERCENTAGESS
Costa Mesa
15.83
7.65
7.54
48.33
110,146
53,229
2.22
2.06
4.28
County of
Orange
1.75.23
16.68
14.25
9.52
121,488
11,564
3.16
3.89
7.05
Irvine
65.98
65.80
50.82
99.73
219,156
218,558
12.58
1.3.89
26.46
Laguna Hills
6.64
1.18
1.16
17.77
30,410
5,404
0.27
0.32
0.59
La vna bVoods
3.31
1.88
1.88
56.80
16,224
9,2 "LS
0.45
0.51
0.96
Lake Forest
16.78
11.58
9.18
69.01
77,490
53,476
2.68
2.51
5.19
Nexv?ortBeach
24.74
17.63
14.58
71.26
85,376
60,840
3.56
3.98
7.55
Orange
25.78
1.88
1.73
7.29
136,995
9,990
0.47
0.47
0.94
Santa Ana
27.35
16.40
16.17
59.96
325,228
195,018
6.35
4.42
10.77
Tustin
1 11.14
1 11.14
1 10.49
100.00
75,781
75,781
3.19
2.87
6.06
OCFC District
- --
- --
-
- --
---
10.00
IRWD
10.00
Irvine Co.
10.00
Lennai
--
---
---
0.15
355.49
151.82
127.80
1,198,294
693,076
34.925
34.925
100.00
Source: OC Public Works, OC Survey Section May 2011
NET LAND AREA = Square miles within Watershed - Extractions for NPDES, Federal, Slate, County, IRWD, Irvine Company and Lennar
' PERCENTAGE OF CITY LAND AREA IN WATERSHED = Square miles within Watershed /Total Square Miles " 100
' Source: Stale of California, Department of Finance, E -1 Population Estimates for Cities. Counties and the Slate with Annual Percentage Change (May 2011 as updated)
a ESTIMATED POPULATION IN WATERSHED = Total Population' Percentage of City Land Area in Watershed /100
e WEIGHTED LAND AREA & POPULATION SHARE = ((Square Miles within Watershed/Total Square Miles of Watershed)'0.5) + ((Estimated Population in Watershed/Total Estimated
Population in Watershed)'0.5) x 34.925
'WEIGHTED NET LAND AREA SHARE = Net Land Area/Total Net Land Area' 34.925
a COST SHARE PERCENTAGE = Weighted Land Area .& Population Share + Weighted Net Land Area Share
Page A -1
CITY OF
-NEWPORT BEACH,
City Council Staff Rep�ort
Agenda Item No. 4
June 26,, 2012
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Public Works Department
Stephen G. Badum, Public Works Director
949 - 644 -3311, sbadum @newportbeachca.gov
PREPARED BY: John Kappeler, Water Quality Manager
APPROVED:
TITLE: Cooperative Agreement to Implement Total Maximum Daily Load
Programs for Nutrients, Fecal Coliform Bacteria and Toxics in the
Newport Bay Watershed.
ABSTRACT:
Staff recommends the City of Newport Beach sign a new Cooperative Agreement to
implement nutrient, fecal coliform bacteria and toxics Total Maximum Daily Load (TMDL)
programs within the Newport Bay Watershed.
REGOMMENDATION:
Authorize the Mayor and the City Clerk to execute Cooperative Agreement D11 -066 to fund
the TMDL programs, studies and monitoring for the Newport Bay Watershed.
FUNDING REQUIREMENTS:
Funding requirements under this agreement are included in the operations and maintenance
section of FY12/13 budget (Account No. 5060- 80809). The total TMDL budget for FY 2012-
13 is approximately $1.5 million of which the City's share is approximately $113,000.
DISCUSSION:
The Newport Bay Watershed has creeks and bay water quality impairments caused by
nutrient, fecal coliform bacteria and toxic pollutants where impairment has been defined by
Section 303(d) of the federal Clean Water Act. (Note there is also impairment by sediment
which is covered under a separate cooperative agreement). The U.S. Environmental
Protection Agency and the State Water Resources Control Board via the California Regional
Water Quality Control Board, Santa, Ana Region (Regional Board) are directed to prepare
clean up plans called TMDLs for the watershed. TMDLs require the reduction of pollutant
Cooperative Agreement to Implement Total Maximum Daily Load Programs for Nutrients, Fecal Coliform Bacteria and
Toxics in the Newport Bay Watershed
- June 26, 2012
Page 2
loads within a prescribed schedule. The requirements of the TMDLs are incorporated into the
National Pollutant Discharge Elimination System (NPDES) Municipal Separate Storm Sewer
System Permit.
For our watershed (San Diego Creek /Newport Bay), the entities responsible for
implementing this TMDL are the County of Orange, Orange County Flood Control District,
Irvine Ranch Water District, Irvine Company, Lennar Homes of California, and the Cities of
Costa Mesa, Irvine, Laguna Hills, Laguna Woods, Lake Forest, Newport Beach, Orange,
Santa Ana and Tustin. Each of the listed parties cooperates via a Cooperative Agreement
(formally executed in September 2003 and amended in 2006 and 2009, which went to
Council on June 24, 2003, June 26, 2006, and March 24, 2009, respectively) to implement
and administer the obligations of the TMDLs. The latest agreement terminates in June 2012.
The proposed revised Agreement provides for an agreement term through June 30, 2015.
The Agreement may be renewed for an additional three -year term with approval of the
parties. The Agreement includes a funding formula developed by the partners to implement
the TMDL programs in the Newport Bay watershed. Under the new agreement, a revised
funding formula was reviewed and approved by the management staff to better appropriate
and fairly distribute the programs cost. The City's share of the TMDL management, planning
and monitoring cost will increase from 6.5% to 7.55 %, however, we expect the City's total
overall cost for this TMDL compliance program will go down in the long term as individual
project cost have been limited or removed from the base budget and will be charged back to
the responsible or directly affected agencies.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will not
result in a direct or reasonably foreseeable indirect physical change in the environment) and
15060(c)(3) (Architectural and Engineering services is not a project as defined in Section
15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3,
because it has no potential for resulting in physical change to the environment, directly or
indirectly.
NOTICING
The agenda item has been noticed according to the Brown Act (72 hours in advance of the
meeting at which the City Council considers the item).
Submitted by:
ph
ctor
A: Cooperative Agreement (011 -066)
m
Agreement No. DII -066
AGREEMENT TO FUND NUTRIENT, FECAL COLIFORM AND TOXICS TOTAL MAXIMUM DAILY
LOAD ( "TMDL ") PROGRAMS IN THE NEWPORT BAY WATERSHED
THIS AGREEMENT, for purposes of identification numbered D11 -066, referred to hereinafter as
"AGREEMENT ", is made and entered into this _ day of 201-, 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." The CITIES, COUNTY and DISTRICT are
hereinafter sometimes jointly referred to as the "MUNICIPAL PARTIES." Thirteen entities (all entities
except for LENNAR) are sometimes jointly referred to as the "ORIGINAL PARTIES."
WITNESSETI-I
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, for 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,
Page 1 of 22
Agreement No. D11 -066
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,.these TMDLs are included in the National Pollutant Discharge Eliuunation. System
( "NPI)ES") Municipal Permit Order No. R8- 2009 -0030 that require cooperative watershed program;
and, .
WHEREAS, the ORIGINAL PARTIES entered into Agreement No. D99 -128 on
September 18, 2003 and subsequent amendments on July 5, 2006, March 29, 2008 and fuly 8, 2010 to
provide funding for the Nutrient Fecal Coliform, and Toxids Total Maximum Daily Load (TMDL)
studies in the Newport Bay Watershed; and,
WHEREAS, the PARTIES intend this AGREEMENT as a successor to Agreement No. D99 -128 to
provide for the performance of studies, research, monitoring, development and /or revision of programs
related to the adopted TMDLs for nutrients, fecal coliform and toxics and current and future Clean Water
Act §303(d) listings, as well as planning, permitting, design, construction, and maintenance of TMDL
pilot projects ( "PILOT PROJECTS'); and
WHEREAS, the PARTIES have reached agreement on a funding formula which is shown in
Exhibit A; and
WHEREAS, in the event that long -term watershed funding is secured prior to AGREEMENT
expiration, the PARTIES intend to amend the AGREEMENT to incorporate this funding through revised
cost share allocations; and,
WHEREAS, it is recognized that regulatory compliance gained through the activities herein
apply to all PARTIES equally, and
WHEREAS, it is recognized that additional compliance efforts may be necessary and the
PARTIES may choose to fund projects under .separate agreements; and
NOW, THEREFORE, in consideration of the foregoing, the PARTIES agree as follows:
Page 2 of 22
4
Agreement No. D11 -066
Section 1. PURPOSE. This.AGREEMENT is entered into for the purpose of funding and
performing program activities related to the adopted TMDTs for nutrients, fecal coliform, and toxics and
current and future Clean Water Act §303(d) listings in the Newport Bay Watershed.
Section 2. TERM. The term of this AGREEMENT shall commence upon approval and execution
of this AGREEMENT by all PARTIES or July 1, 2012, whichever is later, and shall continue until June 30,
2015. The AGREEMENT may he renewed for an additional three (3) year term running July 1, 2015 to
June 30, 2018 with approval of the PARTIES.
Section 3. PROGRAM WORK PLAN. The COUNTY shall work in concert with all PARTIES to
develop a work plan for the following fiscal year. The work plan for the upcoming fiscal year shall be
submitted to each of the PARTIES by December 15 of each year. The work plan may designate a PARTY
as a lead other than the COUNTY for a work plan task(s).
Section 4. BUDGET AND COSTS: The COUNTY shall worl< in concert with all the PARTIES to
develop a budget for the following fiscal year. Budgeted amounts for PILOT PROJECT(S) shall not exceed
$200,000 for all pilot projects in anyone fiscal year. The budget for the upcoming fiscal year shall be
submitted to each of the PARTIES by December 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 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. WORK PLAN TASK LEAD REIMBURSEMENT. If a PARTY is designated as a task
lead, upon written authorization from COUNTY, the PARTY shall invoice the COUNTY for authorized
expenses up to the approved budget amount for the work plan task.
Section 6. APPROVALS AND ADJUSTMENTS. The PARTIES shall be permitted to review and '
approve the budget and program work plan for the forthcoming year, review work products, and
provide direction for performance of the work plan. The PARTIES shall be notified of the intent to issue
Page 3 of 22
Agreement No. Dll -066
contracts to perform the program work plan, shall be permitted to participate in the preparation and
review of the scope of work for such contracts, and to serve on the committee evaluating consultant
qualifications /proposals subject to the requirements of the County of Orange Contract Policy Manual.
Criterion for approval of the work plan and budget shall be affirmative responses from PARTIES
representing ninety percent (90 %) of the Cost Share Percentage in Exhibit A and 12 of the 13 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 as rendering an affirmative responses
Criterion for approval of adjustments to scopes of work shall be the same as for the approval of
the work plan and budget
Section 7. FUNDING COST SHARE ALLOCATIONS. Exhibit A, which is attached to this
AGREEMENT and by this reference is made a part hereof, presents the funding formula and the fiscal
year 2012 -13 cost share percentages for the PARTIES. Land area calculations will be reviewed and
revised as needed. A request for information documenting changes in land area will be made to the
PARTIES each year by November 1.
Section 8. PAYMENTS. The COUNTY shall invoice each PARTY for its annual deposit at the
beginning of each fiscal year. Each PARTY shall pay the deposit within45 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 AGREEMENT.
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
Page 4 of 22
t0
Agreement No. DII -066
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 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.
Sectiorl9. ADDITIONAL PAXI9ES. It is recognized that there may be other parties who wish to
participate in and provide funding for the activities described in this AGREEMENT. No ftig in this
AGREEMENT is intended to preclude additional participants being added by written amendment as
parties to this AGREEMENT pursuant to Section 10. Cost allocations for the additional parties and
PARTIES will be revised based on the funding formula in Exhibit A.
Section 10. AMENDMENT. This AGREEMENT may be amended in writing only with the
unanimous written approval of the parties.
Section 11. 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.
Page 5 of 22
7
Agreement No. DII -066
Section 12. 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 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 13. 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 contractor other obligation for the future
payment of money in excess of appropriations authorized bylaw.
Section 14. 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 15. 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 16. 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 17. 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
Page 6 of 22
Agreement No. Dll -066
and understanding of the PARTIES hereto in respect of the subject matter contained herein. There are no
restricti6ns, 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 18. 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 19. 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 20. 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 electronic mail 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 electronic mail 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 Community Development
City of Irvine
P.O. Box 19578
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
Page 7 of 22
I
Agreement No. D11 -066
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 Conm2ercentre Dr. Suite 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 Ana
101 W. 411, St.
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, OC Public Works
County of Orange
300 N. Flower Street
Santa Ana, CA 92702 -4048
Facsimile: (714) 834-2395
Executive Director of Water Policy
Irvine Ranch Water District
15600 Sand Canyon Avenue _
Irvine, CA 92618
Facsimile: (949) 453 -0228
Vice President of Environmental Affairs
The Irvine Company
550 Newport Center
Page 8 of 22
10
Agreement No. DI1 -066
Newport Beach, CA 92658 -8904
Facsimile: (949) 720 -2448
Vice President of Community Development
Lennar
25 Enterprise, Ste 400
Aliso Viejo, CA 92656
Facsimile: (949) 349 -0394
Section 21. EXECUTION OF AGREEMENT. This AGREEMENT may be executed in counterpart
and the signed counterparts shall constitute a single instrument.
Section 22. 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:
Page 9 of 22
Date:
APPROVED AS TO FORM
COUNTY COUNSEL
Deputy
Date:
Agreement No. DII -066
COUNTY OF ORANGE,
a political subdivision of the State of
California
Chairman of the Board of Supervisors
ORANGE COUNTY FLOOD CONTROL DISTRICT
a body corporate and politic
Chairman of the Board of Supervisors
SIGNED AND CERTIFIED THAT A COPY OF THIS
AGREEMENT HAS BEEN DELIVERED TO THE
CHAIR OF THE BOARD.
Susan Novak
Clerk of the Board of Supervisors of
Orange County, California
Page 10 of 22
APPROVED AS TO FORM:
ATT'ES'T':
City Clerk
CITY OF COSTA MESA
Mayor
City Attorney of Costa Mesa
Page 11 of 22
Agreement No. D11 -066
17,
APPROVED AS TO FORM:
ATTEST:
City Clerk
CITY OF IRVINE
Mayor
City Attorney of Irvine
Page 12 of 22
Agreement No. DII -066
0
APPROVED AS TO FORM:
ATTEST:
City Clerk
CITY OF LAGUNA HILLS
Mayor
City Attorney of Laguna Hills
Page 13 of 22
Agreement No. D11 -066
iy
APPROVED AS TO FORM:
/:�6."
City Clerk
CITY OF LAGUNA WOODS
Mayor
City Attorney of Laguna Woods
Page 14 of 22
Agreement No. Dll -066
Iv
APPROVED AS TO FORM:
ATTEST:
City Clerl<
CITY OF LAKE FOREST
By:
Mayor
City Attorney of Lake Forest
Page 15 of 22
Agreement No. D11 -066
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Agreement No. D11 -066
CITY OF NEWPORT BEACH
Date: By:
Mayor
APPROVED AS TO FORM: '
ATTEST:
City Clerk City AttoN4 of Newport Beach
Page 16 of 22
107
APPROVED AS TO FORM:
ATTEST:
City Clerk
CTrY OF ORANGE
Mayor
City Attorney of Orange
Page 17 of 22
Agreement No. D11 -066
u
APPROVED AS TO FORM:
ATTEST:
City Cferlc
CITY OF SANTA ANA
Mayor
City Attorney of Santa Ana
Page 18 of 22
Agreement No. D11 -066
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APPROVED AS TO FORM:
ATTEST:
City Clcrk
CITY OF TUSTIN
Mayor
City Attorney of Tustin
Page 19 of 22
Agreement No. D11 -066
,7.1
Date:
Agreement No. Dll -066
THE IRVINE RANCH WATER DISTRICT
us
Name:
Title:
Date: By:
Name:
Title:
Page 20 of 22
Date:
Date
THE IRVINE COMPANY
By:
Name:
Title:
By:
Name:
Title:.
Page 21 of 22
Agreement No. Dl1 -066
Date:
Date:
Agreement No. Dl1 -066
Lennar Homes of California,
By:
Name:
Title:
By:
Name:
Title:
Page 22 of 22
Agreement No. Dll -066
EXHIBIT A
FUNDING FORMULA AND FISCAL 2012 -13 COST SHARE PERCENTAGES
' � a y
JURISDICTION
� t
TOTAL
..SQUARE
M1LEts
�' , i
SQ,'1vIILES
�?ITHINr
o F1
WATPR4Ff11s...AREAz°
, S +�
NET;
LAND
�"PERGEI�T'AGES'
„ �, OF CTTY
)LA1��Df1I2EA
III
i j' � �,
f
TOTAL: - sPOP,ULATION
POP ' TIONa'y
Z
s ,
ESTIMATEDk'� [rI:ANDIAREA
tIN+ r'
&4
PULATION
..... '; ; t'Fe•
W,FSGFTI'ED; ,r
NET LAND.�r2012.13COST:'
AREA
' � ; . '.
FISCAL YE'Alt; �.
SH/RF: ;
PERCENTA
Costa Mesa
15.83
7.65
7.54
48.33
110,146
53,229
2.22
2.061
4.28
County of
Orange
175.23
16.68
14.25
9.52
121,488
11,564
3.16
3.89
7.05
Irvine
65.98
65.80
50.82
99.73
21.9,156
218,558
12.581
13.891
26.46
Laguna.1fiRs
6.64
1.18
1.16
17.77
30,410 1
5,4041
0.27
0.32
0.59
Laguna-Woods
3.31
1.88
1.88
56.80
16,224
9,215
0.45
0.51
0.96
Lake Forest
16.78
11.58
9.18
69.01
1 77,490
53,476
2.68
2.51
5.19
Ne ortBeach
24.74
17.63
14.58
71.26
85,376
60,840
3.56
3.98
7.55
Orange
25.78
1.88
1.73
7.29
136;995
9,990
0.47
0.47
0.94
Santa Ana
27.35
16.40
16.17
59.96
325,228
195,018
6.35
4.42
10.77
Tustin
11-141
11.141
10.491
100.00
75,781
75,781
3.19
2.87
6.06
OCFC District
-
-
-
-
-
10.00
IRWD
10.00
Irvine Co.
10.00
Lennar
-
-
--
-
0.15
. ^=
x34:920 >�,,r..r'!.:
:i:ii'".go'$: ".. .�
=.::34.935':.;;:
�r :'.
;:�'.:::.. .;100'00:'
' Source: OC Public Works. CC Survey Section May 2011
NET LAND AREA = Square miles within Watershed - Extractions for NPDES, Federal, State, County, IRWD, Irvine Company and Lennar
' PERCENTAGE OF CITY LAND AREA IN WATERSHED = Square miles within Watershedrrotal Square Miles " 100
° Source: State of California, Department of Finance, E -1. Population Estimates for Cities, Counties and the State with Annual Percentage Change (May 2011 as updated)
ESTIMATED POPULATION IN WATERSHED = Total Population' Percentage of City Land Area in Watershed /100
c WEIGHTED LAND AREA & POPULATION SHARE = ((Square Miles within Watershed/Total Square Miles of Watershed)'0.5) + ((Estimated Population in Watemhed/rotal Estimated
Population in Watetshed)'0.5) x 34.925
"WEIGHTED NET LAND AREA SHARE = Net Land Arearrotal Net Land Area " 34.925
e COST SHARE PERCENTAGE =Weighted Land Area & Population Share + Weighted Net Land Area Share
Page A -1
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