HomeMy WebLinkAbout15 - Buck Gully Dry Weather Urban Runoff Diversion ProjectITEM 15
TO: Members of the Newport Beach City Council
FROM: Dave Kiff, Assistant City Manager
SUBJECT: Buck Gully: Short -Term Dry Weather Urban Runoff Diversion Project
RECOMMENDED (1) Authorize the City's participation in a short -term (until October 15, 2001)
ACTION: diversion of dry weather flows from Buck Gully into the City's sanitary sewer
system;
(2) Find that the diversion project is categorically exempt under the California
Environmental Quality Act (CEQA);
(3) Authorize the Mayor to execute an Agreement for Short -Term Dry Weather
Urban Runoff Diversion at Buck Gully with the Orange County Sanitation
District (OCSD);
(4) Authorize the Public Works Department to issue and the City Clerk to record
with the County an encroachment permit for the diversion project after all
design criteria and environmental review is complete.
(5) Authorize the City Manager to execute any related agreements associated
with the proposed diversion where required by state or federal regulatory
agencies.
BACKGROUND: California has 34 Areas of Special Biological Significance (ASBSs) off of our
coastline. The State Water Resources Control Board ( SWRCB) designates all
ASBSs. The California Ocean Plan (adopted in 1997 as a plan to manage
California's offshore resources) directs that "wastes shall not be discharged to
areas designated as being of special biological significance" and that any runoff
into the ASBS is subject to discharge prohibitions established by the SWRCB and
its nine regional boards (RWQCBs).
Orange County has three ASBSs:
• Newport Beach Marine Life Refuge ASBS
• Irvine Coast Marine Life Refuge ASBS; and the
• Heisler Park Ecological Reserve ASBS
In November 2000, the Santa Ana RWQCB issued a cease and desist order (CDO
#00 -87) to The Irvine Company, the California Department of Transportation
(Caltrans), and the California Department of Parks and Recreation regarding the
Irvine Coast ASBS. The Irvine Coast ASBS receives drainage water from a
portion of the Newport Coast development, Pacific Coast Highway, Crystal Cove
State Park, and El Morro Elementary School northerly of Laguna Beach.
Buck Gully Project
Page 2
The CDO directed that the parties "cease and desist' from new waste discharges
(including storm water and non -storm water runoff from developed areas) and
from existing discharges over the coming two years. The CDO - approved
November 16, 2000 by the Regional Board — was appealed to the State Water
Resources Control Board by Caltrans. The State Board later amended the CDO
to direct Caltrans to "cease and desist" within five years instead of two.
The ASBS off of Little Corona (Newport Beach Marine Life Refilge ASBS) extends
oceanward from Poppy Avenue to the city limits at the easterly edge of Cameo
Shores. The ASBS' seaward boundary is 1000' from the beach (see map).
Drainage into the Newport Beach ASBS comes from Buck Gully, Mooring
Canyon, and at least six storm drains. To date, the City has not received any
correspondence from the Regional Board regarding inflows to the Newport
Beach ASBS.
Newport Beach Marine Life Refuge ASBS
In mid -2000, Nancy Gardner of the Newport Beach Surfrider Chapter
approached the City via the Harbor Quality Citizens' Advisory Committee (Ms.
Gardner is a member of the HQAC) to attempt to "fix Buck Gully." Buck Gully
is a 5 -6 mile drainage area in eastern Corona del Mar and Newport Coast that
carries stormwater, spring water, and urban runoff (irrigation overflow and
more) to the ocean at Little Corona - by the time the flow reaches the base of the
Gully, about 160 -170 gallons per minute of fresh water enters the ASBS.
Lower Buck Gully - January 2001
Buck Gully Project
Page 3
To Gardner, to the Harbor Quality Committee, and to other local environmental
groups including Orange County CoastKeeper, "fixing Buck Gully' means:
• Cutting flows back to natural, pre - development levels;
• Cleaning up whatever flows remain via the use of natural water quality
wetlands; and
• Restoring habitat along the Gully to the types of native grasses, brush, and
trees that would have existed prior to development.
The Water Bond. In March 2000, the state's voters approved Proposition 13, the
Safe Drinking Water, Clean Water, Watershed Protection, and Flood Prevention Bond
Act. Included in the $1.97 billion bond act was a $90,000,000 authorization for the
"Coastal Nonpoint Source (NPS) Control Program." The Coastal NPS Program
funds projects that "restore and protect the water quality and environment of
coastal water, estuaries, bays, and near shore waters and groundwaters."
In late 2000, the State Water Resources Control Board (SWRCB) issued a Request
for Proposals (RFP) for grants that "reduce or prevent non -point source pollution
to ground and surface waters." Projects must be located within the boundaries
of the six coastal Regional Water Quality Control Boards, including our Santa
Ana Regional Board.
On January 23, 2001, the City Council authorized the City to apply for a $225,000
grant from Proposition 13 for improvements to Buck Gully based on the three
improvement principles identified above. Thanks in large part to Ms. Gardner's
volunteer grant- writing ability, the City received this grant in May 2001 and is
prepared to return to Council to authorize the grant's execution.
Diversion of Flows to Sanitary Sewer. Much of the Buck Gully improvements
proposed in the grant will require extensive and time- consuming planning,
engineering, and development. But the same group of environmental advocates
who helped us secure the Proposition 13 grant have proposed a short -term pilot
project that would immediately eliminate fresh water flows into the ASBS by
diverting the flows into the City's sewer pump station at Buck Gully. This
diversion would allow researchers and others to see if any of the habitat value
offshore of the Gully improves without a constant plume of fresh water and
sediment feeding it (see drawings in Attachment A).
City staff - including the Utilities Department and the Public Works Department
- have reviewed the Buck Gully Diversion project and have tentatively
determined that it can be achieved without compromising the capacity of the
Gully pump station or the sewer main that leads from the pump station.
Agreement and Permits Required. Any diversion of storm water or dry weather
runoff into the sanitary sewer requires the approval of the Orange County
Sanitation District (OCSD), since OCSD ultimately receives all of Newport
Beach's sewer flows. OCSD's Dry Weather Urban Runoff Policy (adopted by
OCSD via Resolution #01 -07) requires the execution of a complex Diversion
Agreement between the City and OCSD before any diversion can begin.
Buck Gully Project
Page 4
The Agreement (included as Attachment B) directs the City to:
• Construct and maintain the diversion system with rapid shut -off ability ( §21);
• Submit drawings and designs to OCSD ( §2.2);
• Shut off the system during wet weather events ( §2.3);
• Apply for a wastewater dtscharge permit from OCSD ( §3.0);
• Monitor the discharge for pollutants of concern ( §6.0);
• Pay a fee of $321 /million gallons per day if overall diversions into OCSD's system
exceed 4.0 million gallons per day ( §8.0);
• Allow OCSD staff access to the Buck Gully pump station ( §10.0);
• Pay the entire cost of any damage to OCSD's sewer system resulting directly from
the diversion ( §14.0);
• Indemnify and hold harmless OCSD as a result of actions associated with the
diversion ( §15.0); and
• Only operate the diversion until October 15, 2001 ( §18.14).
The short -term diversion system itself will be installed by Clear Creek Systems, a
company from Bakersfield that participated in a water quality testing program in
Buck Gully in April. Clear Creek has proposed a cost of approximately $4,800.00
for the installation (see Attachment C). Funding for the installation is
anticipated from Orange County CoastKeeper via a benefactor who has pledged
resources to the Buck Gully project. Staff time - both from Utilities and Public
Works - will be required to assist in the installation and monitoring of the
diversion.
The short -term project requires the following approvals or permits:
• A City of Newport Beach Encroachment Permit (pending Council approval of this
Agenda Item);
• Execution of a Streambed Alteration Agreement with the California Department of
Fish and Game (pending);
• Written permission from the California Regional Water Quality Control Board,
Santa Ana Region (approved - see Attachment D);
• Written permission from the US Army Corps of Engineers (received verbally);
• A Coastal Development Permit from the California Coastal Commission (pending).
Environmental Review. After consultation with the City Attorney, we propose
that the City Council make a finding with this Agenda Item's actions that the
temporary project at Buck Gully is categorically exempt (Public Resources Code
Section 21084) under the California Environmental Quality Act (CEQA) under up
to five exemption classes (CEQA Guidelines, Sections 15301 - 15332), including:
CEQA Exemption Classes
#3 - New Construction of Small Structures
#4 - Minor Alterations to Land
#7 — Actions by Regulatory Agencies for Protection of Natural Resources
#11 - Accessory Structures
#32 - Infill Development Projects
Back Gully Project
Page 5
THIS AGENDA This Agenda Item asks the City Council to authorize the City's participation in
ITEM: the short -term diversion project, to make a CEQA exemption finding associated
with the Project, and to authorize the Mayor to execute an Agreement with
OCSD for the actual diversion. It also asks for the Council's authorization to
allow City staff - via the City Manager - to complete any additional permitting
or approvals that may be required in the near future. The diversion must cease
October 15, 2001.
ATTACHMENTS: Attachment A — Drawings of the Diversion
Attachment B - OCSD /City Agreement for Short -Term Dry Weather Urban
Runoff Diversion at Buck Gully
Attachment C - Clear Creek Systems' Proposal
Attachment D - Letter from Regional Board
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ATTACHMENT B
AGREEMENT FOR SHORT -TERM DRY WEATHER URBAN RUNOFF DIVERSION
AT BUCK GULLY
THIS AGREEMENT ( "Agreement ") is made and entered into, to be effective the
_th day of June, 2001 (the "Effective Date "), by and between the ORANGE COUNTY
SANITATION DISTRICT ( "OCSD "), a county sanitation district, and the CITY OF
NEWPORT BEACH ( "CITY "), a municipal corporation. OCSD and CITY are sometimes
hereinafter individually referred to as "Party" and hereinafter collectively referred to as
the "Parties ".
RECITALS
A. Dry Weather Urban Runoff is generated from the Buck Gully Drainage
Area ( "Drainage Area "), as shown on Exhibit "A ". CITY believes that Dry Weather Urban
Runoff entering the creek, coastal wetland pond, beach and ocean swimming area at
Little Corona Beach from residential and golf course storm drains in the northern Buck
Gully watershed may be responsible for the frequent public health advisory postings
where bacteria samples have exceeded the limits set by state law (California Health and
Safety Code sections 24156, et seq., Title 17, Chapter 5, Subchapter 1, Group 10,
Articles 1 -5 sections 7952 -7962 of the California Code of Regulations) for swimmable
waters. CITY in partnership with several government agencies proposes to conduct a
"Bioregional Watershed Management Program" of Buck Gully /Little Corona Beach that
focuses on urban runoff reduction, removal, and reuse, and restoration on the Buck
Gully Watershed. As part of the urban runoff reduction element of the overall program,
CITY proposes to temporarily divert a portion of the Dry Weather Urban Runoff from the
Drainage Area into OCSD's Sewerage System. In conjunction with the temporary
diversion system, CITY will be treating a portion of the Dry Weather Urban Runoff from
the Drainage Area utilizing a new treatment process described as a mobile filtration
system in which the treated water will be conveyed to a nearby golf course for reuse.
CITY has requested and OCSD has agreed that OCSD accept the Dry Weather Urban
Runoff generated from the Drainage Area into CITY's sewerage system which leads into
OCSD's Sewerage System for the period of June 15, 2001 through October 15, 2001.
B. CITY has agreed to undertake responsibility for: (1) the construction,
operation and maintenance of all facilities required for the collection and discharge of
Dry Weather Urban Runoff from the Drainage Area, through CITY sewer facilities as
needed, to OCSD's Sewerage System; (2) compliance with all OCSD requirements
relating to urban runoff generated, collected and transported by CITY to OCSD's
Sewerage System; and (3) all liability and damages associated with the urban runoff
discharge to OCSD's Sewerage System;
C. CITY estimates that the volume of Dry Weather Urban Runoff generated
from the Drainage Area entering the project will be approximately 0.144 million gallons
per day, and estimates that the maximum flow rate of the discharge to OCSD's
Sewerage System will be not more than 100 gallons per minute, and the maximum flow
rate of the discharge to OCSD's Sewerage System will not result in a surcharge of any
local sewer and/or the Sewerage System.
D. Flows of Dry Weather Urban Runoff across public beaches and onto Little
Corona Beach and the ocean have the potential for causing interference with the
recreational use and enjoyment of public beaches by swimmers and beach -goers and
other potential public health and /or environmental problems;
WSBS TLWtam -FINAL 7110101 137942 1
E. OCSD has available limited system capacity in its collection, treatment
and disposal facilities which will allow OCSD to accept certain Dry Weather Urban
Runoff discharges without adversely affecting OCSD's primary function of collection,
treatment and disposal of sanitary sewer discharges;
F. OCSD does not have system capacity available to allow urban runoff
discharges to OCSD's facilities other than limited amounts of Dry Weather Urban Runoff;
G. On March 28, 2001, OCSD established its Dry Weather Urban Runoff
Policy ( "Policy ") by the adoption of Resolution No. OCSD 01 -07, a copy of which is
attached hereto as Exhibit "B ". The policy was developed to address certain
environmental concerns associated with Dry Weather Urban Runoff.
H. OCSD has determined that it will accept Dry Weather Urban Runoff
discharge from Drainage Area to its Sewerage System provided that the discharge
complies with the terms of OCSD's Dry Weather Urban Runoff Policy and in accordance
with OCSD Ordinance Nos. OCSD -01 and OCSD -15, as shown as Exhibit "C" and any
other current or future OCSD Ordinances, regulations, rules and requirements;
I. OCSD is willing to accept CITY's Dry Weather Urban Runoff from the
Drainage Area, provided that the discharge occurs in strict accordance with: (1) OCSD's
Dry Weather Urban Runoff Policy, as such policy may be amended from time to time in
OCSD's sole discretion; (2) the Wastewater Discharge Permit which OCSD intends to
issue to CITY for such discharge, as such permit may be renewed or amended from time
to time by OCSD in accordance with OCSD's Dry Weather Urban Runoff Policy; (3)
OCSD's Wastewater Discharge Regulations set forth in OCSD Ordinance No. OCSD -01,
and other Ordinances, as such regulations may be established or amended from time to
time; (4) this Agreement; (5) procedures developed by OCSD addressing the discharge
of urban runoff to the Sewerage System, including but not limited to procedures for the
shut -off of such discharges; (6) any other applicable law and /or regulations governing
the collection, treatment and /or disposal of the runoff and (7) any permits issued by
regulatory agencies with jurisdiction over the runoff or the OCSD's wastewater system
and operations.
NOW, THEREFORE, OCSD and CITY agree as follows:
1.0 Terms and Definitions. As used in this Agreement, the following terms
shall have the meanings set forth herein.
1.1 "Dry Weather" shall mean any period which does not fall within the
definition of Wet Weather.
1.2 "Dry Weather Urban Runoff' means surface runoff which is
generated on or flows from the Drainage Area during Dry Weather.
1.3 "Pollutants of Concern" shall mean pollutants identified on Exhibit
"D" attached hereto and as such list of pollutants may be periodically amended by OCSD
in its sole discretion, which pollutants OCSD has determined, or in the future determines,
shall be the subject of regulation and /or monitoring pursuant to the Dry Weather Urban
Runoff Policy,
WSBS TLW:Iam -FINAL 7110/01 137942 2
1.4 "Pollutant Violation" shall mean the discharge at any time of any
Pollutant(s) of Concern into the diversion system required herein to the Sewerage
System which discharge is not in compliance with any condition, provision and/or
discharge limit set forth in the Wastewater Discharge Permit, OCSD's Ordinances or this
Agreement.
1.5 "Sewerage System" means the Sewerage System operated and
maintained by OCSD, including its collection, treatment and disposal facilities and all
additional similar facilities which may be installed or constructed subsequent to the date
of this Agreement.
1.6 "Wastewater Discharge Permit" means the permit which OCSD
intends to issue to CITY to authorize, under specified terms and conditions, the
discharge of Dry Weather Urban Runoff to the Sewerage System, which permit, along
with OCSD's Ordinances, Dry Weather Runoff Policy and this Agreement, shall govern
such discharge to the Sewerage System.
1.7 "Wet Weather" shall mean any period during which measurable
rainfall, recorded by a source deemed reliable by the OCSD, occurs in any portion of
OCSD's service area and shall include the period following the cessation of rainfall until
OCSD determines that the wet weather event is no longer impacting OCSD's collection,
treatment and disposal facilities.
2.0 Diversion System. CITY shall be authorized to discharge Dry Weather
Urban Runoff to OCSD's Sewerage System in accordance with the terms of this
Agreement.
2.1 CITY shall construct and maintain a fully functioning diversion
system as part of the "Project ", acceptable to OCSD, which shall include facilities for
collection of Dry Weather Urban Runoff and facilities for connection to the City's
sewerage system which ultimately flows into OCSD's Sewerage System. The diversion
system shall be capable of excluding all flow received into the diversion system, from
entering into OCSD's Sewerage System. The diversion system shall be operational
prior to the discharge of any Dry Weather Urban Runoff from the Drainage Area to the
Sewerage System. The diversion system shall be equipped with a lockable shut off
device, satisfactory to OCSD, and to which OCSD shall be provided with access at all
times. The diversion system shall be constructed and operated such that it can be shut
off by either party at any time. CITY shall be responsible for the closing of all diversion
system valves necessary to prevent any discharge to the Sewerage System during Wet
Weather, Pollutant Violation, and emergency events. The failure of CITY to prevent all
discharges to the Sewerage System during any Wet Weather, Pollutant Violation, or
emergency event, shall be cause for immediate termination of the authorization for Dry
Weather Urban Runoff discharges. In the event that CITY fails to shut off the flow to the
Sewerage System during any Wet Weather, Pollutant Violation, or emergency event,
OCSD shall be immediately entitled to shut the pump off. CITY shall have complete
responsibility for the construction of the diversion system and all other associated
facilities, including all costs associated therewith. CITY shall have complete
responsibility for the operation and maintenance of the diversion system and all other
associated facilities, including all costs associated therewith. The Parties acknowledge
that OCSD is continuing to develop procedures for shutting off the discharge to OCSD's
Sewerage System during Wet Weather events. CITY may provide suggestions to OCSD
WS &S TLW:Iam -FINAL 7110101 137942 3
regarding such procedures, but the final determination of such procedures shall be made
by OCSD.
2.2 In conjunction with CITY's application for a Wastewater Discharge
Permit pursuant to Section 3, CITY shall submit to OCSD design drawings and
specifications for maximum design flows and a proposed operation and maintenance
plan for the proposed diversion system through which CITY intends to discharge Dry
Weather Urban Runoff to the Sewerage System. The design drawings, specifications,
operations and maintenance plan shall be sufficient to establish to the satisfaction of
OCSD that the Project's Dry Weather Urban Runoff (1) shall not, alone or in conjunction
with other discharges to the Sewerage System, cause pass through of and /or
interference with OCSD's Sewerage System; and (2) shall otherwise comply with all
OCSD requirements applicable to the proposed discharge. The CITY submittal shall
identify equipment, satisfactory to OCSD, to be installed which equipment is capable of
measuring and recording on a daily basis the Dry Weather Urban Runoff flow discharged
from the Drainage Area to the Sewerage System. The Parties anticipate that a sump
pump system will be necessary as part of the diversion system. The diversion system
shall be limited to a flow rate that, in OCSD's sole determination, will not result in a
surcharge of any local sewer and /or the Sewerage System.
23 No later than the commencement of either a Wet Weather or
Pollutant Violation event, CITY shall direct the shut off of the flow of urban runoff (and
accompanying storm water) to OCSD's Sewerage System. CITY shall be responsible
for determining whether a Wet Weather event is occurring unless OCSD establishes and
maintains in effect a written procedure through which OCSD undertakes to notify CITY of
the commencement of Wet Weather events. The discharge shall not resume until CITY
has obtained OCSD approval for the resumption of the discharge, as specified in
accordance with established OCSD written procedures.
(a) Notwithstanding the foregoing in Section 2.3 herein, if either CITY
or OCSD initiates communication with the other, during which communication, an
authorized OCSD representative grants permission for CITY to continue to discharge
during a Wet Weather event or during any period of time when a Wet Weather event is
forecasted to have some chance of occurring, CITY may continue the discharge to
OCSD's Sewerage System during such event.
(b) OCSD shall provide to CITY a list of persons authorized by OCSD
to provide permission /approval for the continuation or resumption of the discharge.
OCSD may periodically amend the list by notice to CITY provided pursuant to Section
18.2 herein.
2.4 CITY shall design the Project in a manner that reasonably
prevents debris from entering into the Sewerage System.
2.5 CITY shall submit to OCSD, CITY's report and related
documentation associated with its Buck Gully restoration and flow reduction project.
2.6 The Parties acknowledge that, due to special circumstances
associated with the canyon terrain on which the Project is located, a small amount of
groundwater may mix with the urban runoff and be discharged to OCSD's Sewerage
System in accordance with this Agreement. This does not include construction
dewatering discharge.
WS &S TLW:Iam -FINAL 7110101 137942 4
3.0 Wastewater Discharge Permit. Prior to the design and construction of the
diversion system to the Sewerage System, CITY shall apply for a Wastewater Discharge
Permit from OCSD. OCSD hereby retains the authority, in its sole discretion, to modify
the terms, conditions and/or discharge limits set forth in the Wastewater Discharge
Permit or otherwise require additional management practices, pollution prevention
strategies and /or treatment equipment to improve the quality of the discharge to and
reduce the impact of the discharge on the Sewerage System. A sample of a
Wastewater Discharge Permit authorizing the discharge of urban runoff to OCSD's
Sewerage System is attached as Exhibit "E ".
3.1 The initial term of the Wastewater Discharge Permit shall be June
15, 2001 to October 15, 2001. The permit shall only be renewed in accordance with the
Dry Weather Urban Runoff Policy in effect at that time and the terms of this Agreement.
3.2 Upon issuance of the Wastewater Discharge Permit, CITY shall
be authorized to discharge Dry Weather Urban Runoff through the diversion system into
the Sewerage System in accordance with this Agreement.
3.3 Upon expiration of each Wastewater Discharge Permit and at
such other times as OCSD deems appropriate, OCSD shall evaluate the quality and
quantity of the discharge in order to assess the effectiveness of the existing terms,
conditions and discharge limits in the permit and the need for modification of the permit.
The terms, conditions and discharge limits of the renewal shall be dependent upon the
results of OCSD's evaluation.
4.0 Compliance with Dry Weather Urban Runoff Policy. CITY shall comply
with all the requirements of OCSD's Dry Weather Urban Runoff Policy, as such policy
may be periodically amended by OCSD.
5.0 Quality and Quantity of Discharge. The quality and quantity of the Dry
Weather Urban Runoff from the Drainage Area shall meet all terms, conditions, and
discharge limits contained in OCSD's Wastewater Discharge Regulations, including
subsequent amendments thereto, and the Wastewater Discharge Permit referred to in
section 3.0 herein.
6.0 Self Monitoring. CITY shall conduct self monitoring of the Dry Weather
Urban Runoff for Pollutants of Concern, as directed by OCSD, to insure compliance with
the terms, conditions and discharge limits set forth in the Wastewater Discharge Permit,
OCSD's Ordinances and this Agreement. Unless otherwise directed by OCSD, CITY
shall conduct self monitoring of the Dry Weather Urban Runoff discharge on or about
July 2, 2001, and on or about September 10, 2001. The results of all self monitoring
shall be submitted to OCSD as directed by OCSD.
7.0 Enforcement. In the event of a Pollutant Violation or if the quality or
quantity of the discharge to the Sewerage System does not meet the conditions,
provisions or discharge limits set forth in this Agreement, and, notwithstanding the
diversion system shutoff authorization set forth in Section 2.1, OCSD may take
enforcement action for any violation of the terms of the Wastewater Discharge Permit
and /or OCSD's Ordinances, which violation occurs prior to the shutoff, in accordance
with the provisions of Ordinance No. OCSD -01, including any subsequent amendments
thereof or successor ordinance thereto. For purposes of this Agreement, the Parties
agree that the discharge from the Drainage Area to the Sewerage System will be treated
WS &S TLW:Iam -FINAL 7110101 137942 5
as industrial wastewater pursuant to Government Code Sections 54739 - 54740.6,
including any subsequent amendments thereto, and subject to the penalty and other
provisions thereof.
8.0 Fees and Charges. The Parties acknowledge that, pursuant to OCSD's
current Dry Weather Urban Runoff Policy, no fees or charges, other than non-
compliance fees, if appropriate, will initially be imposed until the total discharge of Dry
Weather Urban Runoff from all sources to OCSD's Sewerage System exceeds 4 million
gallons per day. At such time as the discharge exceeds 4 million gallons per day, all
dischargers, including CITY, shall thereafter pay operations and maintenance charges at
the rate of $321.00 per million gallons for each discharger's total discharge to OCSD's
Sewerage System.
8.1 It is not OCSD's intent at this time to charge OCSD's
"Supplemental Capital Facility Capacity Charges" for the acceptance of Dry Weather
Urban Runoff from any permitted discharger. In the event OCSD subsequently decides
to charge Supplemental Capital Facility Capacity Charges, the charges will be levied on
all then - existing and future permittees, including CITY, and will be established at the
Significant Commercial - Industrial User rate pursuant to OCSD Ordinance No. OCSD -15,
or any successor Ordinances thereto. The Parties acknowledge that the Supplemental
Capital Facilities Capacity Charge which would be applicable to Dry Weather Urban
Runoff is established by Ordinance No. OCSD -15, Section 3.07, and is calculated by
measured flow, Biochemical Oxygen Demand ( "BOD "), and Suspended Solids ( "SS "),
discharged per day
8.2 Notwithstanding any other provision of this Agreement, OCSD
may, in its sole discretion, impose and /or modify fees and charges applicable to the
discharge. In accordance with OCSD Ordinance Nos. OCSD -01 and OCSD -15, and any
other current or future OCSD Ordinances, Resolutions, regulations, rules, and /or
policies, CITY shall pay all fees and charges, in an amount as initially adopted or as
subsequently modified by OCSD, related to the discharge, including but not limited to
Sanitary Sewer Service Charges, Capital Facilities Capacity Charges, Supplemental
Capital Facility Capacity Charges, Administrative Fees, and Non - Compliance Fees;
provided that CITY shall not be required to pay any such fees or charges in an amount
proportionately higher than any other public agency with whom OCSD enters into an
agreement to accept Dry Weather Urban Runoff into its Sewerage System. Failure to
pay any fees in a timely manner shall be cause for termination of the Wastewater
Discharge Permit and the discharge to the Sewerage System.
8.3. CITY reserves the right to cease the diversion and terminate this
agreement in the event that OCSD imposes Supplemental Capital Facility Capacity
Charges or any diversion fee or charge.
9.0 Administrative Costs. Once the total discharge of urban runoff to OCSD's
Sewerage System from all sources exceeds 4 million gallons per day, all OCSD
administrative costs, as established by OCSD Ordinance No. OCSD -15, Article IV re
Special Discharge Permits, related to the future implementation of this Agreement and
monitoring of compliance by CITY with the Wastewater Discharge Permit and OCSD's
Ordinances shall be borne by CITY. CITY shall reimburse OCSD within 30 days of
submittal by OCSD of an invoice to CITY for such costs.
WS &S TLW:lam -FINAL 7110101 137942 6
10.0 Access to CITY Facilities. CITY shall provide OCSD employees with 24-
hour a day access to CITY's Buck Gully pump station and the diversion pump area
during the diversion period. Such access is for purposes of OCSD inspection,
monitoring, or closure of the valves controlling the discharge to OCSD's Sewerage
System, as OCSD, in its sole discretion, determines is appropriate, and verification of
compliance with the Wastewater Discharge Permit, OCSD's Ordinances and this
Agreement.
11.0 Termination of Discharge. If OCSD determines that the Dry Weather
Urban Runoff, alone or in conjunction with other discharges, is adversely affecting or
threatening to adversely affect OCSD's Sewerage System or causing or threatening to
cause a violation of its National Pollution Discharge Elimination System permit ( "NPDES
permit "), OCSD shall so notify CITY, which shall immediately cease all discharge to the
Sewerage System.
11.1 Evaluation of Impact. During the three (3) years following the
effective date of this Agreement, and periodically thereafter, OCSD intends to evaluate
the impacts of the acceptance of urban runoff on OCSD's Sewerage System and on
OCSD's effluent. OCSD reserves the right to modify OCSD's Dry Weather Urban Runoff
Policy, as OCSD, in its sole discretion, determines is appropriate. Any discharge from
the Drainage Area to OCSD's Sewerage System shall be subject to such modified
policy, including a termination of the program of acceptance of Dry Weather Urban
Runoff. In the event this Agreement is still in force and effect due to amendments
extending the termination date, OCSD shall provide the CITY with 90 days notice of any
proposed amendment or termination of OCSD's Dry Weather Urban Runoff Policy.
12.0 Additional Requirements. CITY acknowledges that OCSD may, as it
deems appropriate, impose requirements for implementation of additional management
practices and pollution prevention strategies to reduce the burden on the Sewerage
System.
13.0 CITY's Reliance on Consultants. CITY shall rely on its own staff and /or
consultants to ensure that the facilities and equipment, which CITY installs, operates and
maintains pursuant to this Agreement, shall function as intended. No approval or
acceptance by OCSD of design drawings, management practices, technologies,
pollution prevention strategies, or any other proposals by CITY shall be construed as a
representation by OCSD that such design, management practices, technologies,
pollution prevention strategies, or proposals will enable CITY to comply with the terms
and conditions of the Wastewater Discharge Permit, OCSD's Ordinances, including
amendments thereto, this Agreement or any other entitlement or permit issued by a
regulatory authority to CITY.
14.0 Damaqe to OCSD's Sewerage Svstem. As between OCSD and CITY,
CITY shall bear the entire cost of and shall reimburse OCSD for any and all costs and /or
expenses incurred by OCSD as a direct and determinable result of damage to the
Sewerage System from any Dry Weather or Wet Weather runoff associated in any
manner with the Property.
15.0 Indemnification. CITY shall defend, indemnify and hold harmless OCSD,
and its Board members, officers, agents, and employees from any and all liabilities,
claims, penalties, forfeitures, litigation or regulatory administrative proceedings, and the
costs and expenses incident thereto (including cost of defense, experts, settlement, and
WS &S TI-Mam -FINAL 7/10/01 137942 7
reasonable attorney fees), which they may hereinafter incur, become responsible for or
pay out as a result of actions or omissions associated with activities related to this
Agreement, including, but not limited to (1) any Dry Weather and /or Wet Weather runoff
associated in any manner with the Drainage Area and (2) any impacts or runoff
occurring as a result of the termination of the discharge to the Sewerage System or this
Agreement.
This indemnification shall apply to any affirmative acts or acts of omission by
OCSD, including but not limited to any OCSD action to close the diversion system valves
and prevent the discharge to the Sewerage System but shall not apply to (1) any active
negligence of OCSD (unless such active negligence is alleged to have occurred with
respect to any OCSD action to render emergency assistance at the diversion system
facilities in the event of an operational malfunction or other problem at such facilities) or
(2) any intentional wrongful acts or omissions of OCSD.
This indemnification provision shall survive the termination of the remaining
provisions of this Agreement as to any matter(s) which otherwise arises before or upon
such termination until the time as the determination of such matter(s) become final. In
the event OCSD enters into an agreement(s) with any other part(ies) to accept dry
weather urban runoff into its Sewerage System and any such agreement contains an
indemnification clause different from this section, such clause shall, at CITY's election,
exercised by written notice to OCSD, be deemed to replace this section as of the date(s)
of such agreement(s).
16.0 No Capacity Right or Entitlement. In keeping with OCSD's long standing
policy on all sewer system connections, nothing in this Agreement, or in the Wastewater
Discharge Permit, shall be construed to provide CITY with any vested entitlement to
discharge Dry Weather Urban Runoff to the Sewerage System or with a capacity right in
the Sewerage System.
17.0 Third Party Beneficiary. Nothing in this Agreement shall be construed to
create any rights or benefits in any third party to this Agreement.
18.0 General Provisions.
18.1 Authority to Enter Agreement. Each Party warrants that the
individuals who have signed this Agreement have the legal power, right and authority to
make this Agreement and bind each respective Party.
18.2 Notice. All notices, demands, invoices, and written
communications required to be provided under this Agreement, shall be delivered at the
following addresses or such other addresses as Parties may designate by written notice:
If to CITY: City of Newport Beach
Attention: Assistant City Manager
3300 Newport Boulevard
Newport Beach, Ca. 92663
If to OCSD: Orange County Sanitation District
Attention: General Manager
10844 Ellis Avenue
Fountain Valley, California 92708
WS &S TLW:Iam -FINAL 7110101 137942 8
Depending on the method of transmittal, notice shall be deemed received as follows: by
facsimile or other electronic transmission, as of the date and time sent as confirmed by
receipt; by messenger, as of the date and time delivered; and by U. S. Mail first class
postage prepaid, as of seventy -two (72) hours after deposit in the U. S. Mail.
18.3 Construction of Agreement. It being agreed that all Parties or their
agents have participated in the preparation of this Agreement, the language of this
Agreement shall be construed simply, according to its fair meaning, and not strictly for or
against any Party. Any term referencing time, days or period for performance shall be
deemed calendar days and not work days. The headings of the various articles and
sections herein are for the convenience and ease of reference only, and do not define,
limit, augment, or describe the scope, content or intent of this Agreement.
18.4 Amendment. Modification. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing and signed by
the Parties.
18.5 Waiver. No waiver of any default shall constitute a waiver of any
other default or breach, whether of the same or other covenant or condition. No waiver,
benefit, privilege or service voluntarily given or performed by a Party shall give the other
Party any contractual right by custom, estoppel or otherwise.
18.6 Binding Effect. Each and all of the covenants and conditions shall
be binding on and shall inure to the benefit of the Parties, and their successors, heirs,
personal representatives, or assigns. This section shall not be construed as an
authorization for any Party to assign any right or obligation under this Agreement.
18.7 Invalidity, Severabilitv. If any portion of this Agreement is
declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction,
the entire agreement shall be deemed invalid, illegal or otherwise unenforceable.
18.8 Time Is Of The Essence. Time is of the essence in this
Agreement, and the Parties agree to execute all documents and proceed with due
diligence to complete all covenants and conditions.
18.9 Counterparts. This Agreement may be signed in counterparts,
each of which shall constitute an original and which collectively shall constitute one
instrument.
18.10 Entire Agreement. This Agreement contains the entire agreement
between the Parties and supersedes any prior oral or written statements or agreements
between the Parties.
18.11 Attorneys' Fees. In the event that any action or proceeding is
commenced between the Parties to enforce or interpret any term of this Agreement, the
prevailing Party in such action or proceeding, in addition to all other relief to which it may
be entitled, shall be entitled to recover from the other Party the prevailing Party's costs of
suit and reasonable attorney fees.
18.12 Effect of Recitals. The Recitals above are deemed true and
correct, are hereby incorporated in this Section as though fully set forth herein, and each
WS &S TLW:Iam -FINAL 7/10/01 137942 9
Party to this Agreement acknowledges and agrees that such Party is bound by the
same.
18.13 Effective Date. This Agreement shall become effective on the
date first set forth above. Notwithstanding the foregoing, no discharge of Dry Weather
Urban Runoff to OCSD's Sewerage System shall occur prior to the later of (1) the
completion of the diversion system and (2) CITY obtaining a Wastewater Discharge
Permit pursuant to Section 3.0 herein.
18.14 Agreement Term. The term of this Agreement shall be from the
period of June 15, 2001 through October 15, 2001.
IN WITNESS WHEREOF, OCSD and CITY have each caused this Agreement to
be executed by its duly authorized representative on the day and year set forth.
ORANGE COUNTY SANITATION DISTRICT
M
Chair. Board of Directors
By:
Secretary of the Board of Directors
APPROVED AS TO FORM:
THOMAS L. WOODRUFF
DISTRICT COUNSEL
By:
CITY OF NEWPORT BEACH
Homer L. Bludau, City Manager,
ATTEST:
LaVonne Harkless, City Clerk
APPROVED AS TO FORM:
Robert Burnham, City Attorney
WS &S TLW:Iam -FINAL 7/10/01 137942 10
JUL -13 -01 10:48 AM 0ranse Co. Coast Keeverll 9496757091 P -02
07111!2001 0:':4d 6ti193td206 CC5 WE 01
ATTACHMENT C
Clear Creek
�Systems,
Inc. _
July 12, 2001
Ms. Garry Brown
Orartre County Coastkeeper
441 Old Newport Blvd, Ste 103
Newport Beach, CA 92663
Subinitted Via Fax: (949)675 -7091
RE: Buck Gully Diversion Proposal
Dear Mr. Brown:
Clear Creek Systems, Inc. (CCS) is pleased to submit this proposal for installation and
maintenance of a diversion pump system for the lower reaches of Buck Gully in Newport
Beach. California.
'this proposal includes the purchase, installation, and maintenance of the temporary
diversion pump and piping.
Equipment included in this proposal:
1. 5 hp centrifUgal pump
2. Ptunp enclosure
3. 8" PVC collection pipe with inlet screen (approximately 8')
4. 3" sch. 40 pvc pipe (approximately 250')
5. Temporary electrical cord (approximately 250)
The cost for this equipment is $4,500.00.
If Coastkeeper or the City of Newport Beach wish, a high level sensor can be installed in
the sewer collection pit that will receive the diverted runoff, This will shut the diversion
P=P off if the level rises too high in the sump. The price for this sensor and installation
is $300.00.
Temts arc 50% upon receipt of order and 50% within 10 days of installation. Any labor
costs that CCS incurs on the proposed insrallatton over S4,500.0D will be viewed as an in
kind charitable coutributom
CC5 will provide once weekly monitoring of die primp and inlet for $5001month for the
90 -day period of the project.
4101 Union Avenue - Sakersfleld, CA 93305 (661) 324 -9634 - Fax (661) 322 -4206 1 www.elearereeksystoms.com
JUL -13 -2001 1129 93% P.02
JUL -13-01 10:48 AM 0ranse Co. Coast KeePerll 9496757091 P.03
97i 11 /2da1 61:06 6F1'322020E r;y
PACE
CCS has previously submitted drawings of the electrical diagram aad system layout. It is
planned that the temporary electrical cord will be secured to the bottom of the piping
system and that neither the electrical nor piping will be buried.
InsWistion is estimated to take four days and can begin approximately, five working days
from teceipt of order. We look forward to working with you on this Project.
.Sinocrel)',
]� oe Gannon
Clear Creek Systems, Inc.
JUL -13 -2001 11:29 93i P.03
07/03/2001 15:38 909 - 321 -4580 REGIONAL WATER BOARD PAGE 01
{fPI _*vv.o,#K b
0 California Regional Water Quality Control Board
Santa Ana Region (0
Winston H. Hickox Internet Address: hq: / /..s rcb,ca.gov /rwgcb8
Secretary for 3737 Main Strcct, Suite 500, Riverside, California 92501 -3348
Environments! Phone (909) 782 -4130 - FAX (909) 781 -6288
Protection
The energy challenge facing California is real Every Callfornicn needs to take immediate action to reduce energy con mption.
For a list of sfmple ways you can reduce demand and cut your energy costo, see our websire ar w ,xwrcb.co.gov 1rwgcb8.
July 3, 2001
Dave Kiff, Assistant City Manager
City of Newport Beach
P. O. Box 1768
Newport Beach, CA 92659 -1768
BUCK GULLY DRY WEATHER FLOW DIVERSION PROJECT
Dear Mr. Kiff:
Grey Davis
Governor
This is in response to your June 22, 2001 request for our approval to conduct a short-term
diversion of all flows from the Buck Gully area. You are proposing to divert flows in Buck
Gully from July through October 2001 into the sanitary sewer system for treatment and disposal.
This test is to determine if the current flows through Buck Gully are a source of microbial
contamination at the Little Corona Beach. At the end of this test program, the City will ensure
that the area is restored to its current conditions. This is to notify you that we have no objection
to this temporary diversion of water from Buck Gully to the sanitary sewer system.
If you have any questions, please contact Mark Smythe at 909 - 782 -4998 or me at 909 - 782 -3238.
Sincerely,
Michael J. Adackapara
Division Chief
Cc: Orange County Coastkeeper — Mike Beanan/Garry Brown
Surfrider Foundation — Nancy Gardener
California Environmental Protection Agency
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