HomeMy WebLinkAbout04 - Total Maximum Daily Loads in Newport BayCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No.4
March 24, 2009
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: City Manager's Office
Dave Kiff, Assistant City Manager
949/644 -3002 or dkiff @city.newport- beach.ca.us
SUBJECT: Amendment #2 to a Cooperative Agreement for the Administration of
Total Maximum Daily Loads (TMDLs) in Newport Bay
ISSUE:
Should the City of Newport Beach agree to amend an existing Cooperative Agreement
for water quality in the Newport Bay Watershed to extend its term?
RECOMMENDATION:
Authorize the Mayor to sign and execute Amendment #2 to the 2003 Cooperative
Agreement to fund Nutrient, Fecal Coliform and Toxics Total Maximum Daily Load
(TMDL) Studies & Programs in the Newport Bay Watershed.
DISCUSSION:
Newport Bay is an impaired water body per §303(d) of the federal Clean Water Act. As
such, the US Environmental Protection Agency (US EPA) and the State Water
Resources Control Board (SWRCB) via the California Regional Water Quality Control
Board, Santa Ana Region (Regional Board) is directed to prepare clean up plans --
called "Total Maximum Daily Loads" (TMDLs) — for the Bay. TMDLs attempt to
eliminate water quality impairments within a certain amount of time. Newport Bay is
listed on the §303(d) List for the following substances:
• Sediment
• Nutrients
• Metals
• Fecal Coliform Bacteria
• Toxic Pollutants
The adopted TMDLs contain requirements for studies, monitoring and the development
of programs to attain TMDL contaminant reduction targets over a multi -year period.
Additionally, the requirements of the TMDLs are incorporated into the National Pollutant
Discharge Elimination System (NPDES) Municipal Separate Storm Sewer System
(MS4) Permit.
Amendment #2 to Cooperative Agreement for TMDLs
March 24, 2009
Page 2
While Newport Bay is wholly within the city limits of Newport Beach, the Newport Bay
watershed includes more than 150 square miles of territory. Because the Bay's
impairments involve pollutants from throughout the watershed, the duty to adhere to the
TMDLs applies to many of the entities within the watershed, including:
• The County of Orange;
• The Orange County Flood Control District;
• The Irvine Ranch Water District (IRWD);
• California Department of Transportation (Caltrans);
• Tustin Legacy Community Partners;
• Lennar Homes of California;
• The Great Park Corporation;
• The Irvine Company; and
• The cities of Costa Mesa, Irvine, Laguna Hills, Laguna Woods, Lake Forest,
Newport Beach, Orange, Santa Ana, and Tustin ( "watershed cities ").
Each of the parties listed above cooperates -- via a Cooperative Agreement (formally
executed by all of the parties in September 2003 and amended in 2006 and which went
to your Council on June 24, 2003 and June 26, 2006, respectively) -- to implement and
administer the obligations of the TMDLs through at least 2010. The parties developed
the Agreement to provide a long -term funding formula to ensure that the costs of
compliance with the TMDLs are shared equitably among the parties within the Newport
Bay /San Diego Creek watershed.
Additional Background:
Amendment No. 1 was executed on July 5, 2006 and added four new cost share parties:
• The California Department of Transportation (Caltrans)
• Tustin Legacy Community Partners
• Lennar, and
• The Great Park Corporation.
As a result, the current cost -share formula is on the next page (Table #1).
The purpose of Amendment No. 2 is to extend the term of the agreement for two years
(through June 30, 2010), and to recognize prior payments for services made directly by
Caltrans ($75,000) and IRWD ($6,932.88) for work plan development and bay algae
studies respectively, as credits in the 2008 -2009 program budget. No other changes to
the agreement are proposed at this time.
Amendment #2 to Cooperative Agreement for TMDLs
March 24, 2009
Page 3
Table #1
Environmental Review: The City Council's approval of this Agenda Item does not
require environmental review.
Public Notice: This agenda item may be noticed according to the Brown Act (72 hours
in advance of the public meeting at which the City Council considers the item).
Funding_ Availability: The City's TMDL obligations for FY 2008 -09 are $141,269 and
were included in the approved FY 2008 -09 budget.
Submitted by:
!::.
Dave Ki
Assistant City Manager
Attachments: Amendment No. 2 to Cooperative Agreement
Amendment No. 1 to Cooperative Agreement
Cooperative Agreement
J
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Total Cost Share
Program Participants
2008 -09
Budget
88.00%
Costa Mesa
75%
4.43%
$ 93,332
Irvine
24.77%
$ 521,958
Laguna Hills
0.55%
$ 11,660
Laguna Woods
0.92%
$ 19,419
Lake Forest
5.26%
$ 110,926
Newport Beach
6.70%
$ 141,269
Orange
0.92%
$ 19,414
Santa Ana
14.12%
$ 297,510
Tustin
5.97%
$ 125,840
County of Orange
3.84%
$ 80,894
OC Flood Control District
7.50%
$ 158,025
The Irvine Company
12.50%
$ 263,414
IRWD
12.50%
$ 255,576
5%
Caltrans
$ 40,722
2%
The Great Park Corporation
$ 47,867
2.50%
Lennar Homes
$ 59,834
2.50%
Tustin Legacy Partners
$ 59834
Total Budget for FY 2008 -09
$ 2,307,494
Environmental Review: The City Council's approval of this Agenda Item does not
require environmental review.
Public Notice: This agenda item may be noticed according to the Brown Act (72 hours
in advance of the public meeting at which the City Council considers the item).
Funding_ Availability: The City's TMDL obligations for FY 2008 -09 are $141,269 and
were included in the approved FY 2008 -09 budget.
Submitted by:
!::.
Dave Ki
Assistant City Manager
Attachments: Amendment No. 2 to Cooperative Agreement
Amendment No. 1 to Cooperative Agreement
Cooperative Agreement
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Amendment No. 2 to Agreement NO.D99 -121
AMENDMENT NO. 2
AGREEMENT TO FUND NUTRIENT, FECAL COLIFORM AND TOXICS TOTAL MAXIMUM DAILY LOAD (TMDL)
STUDIES IN THE NEWPORT BAY WATERSHED
THIS AMENDMENT, for purposes of identification numbered Amendment No. 2 to
Agreement No. D99 -126, is made and entered into this day of 2009, by
and between the County of Orange ( "COUNTY "), the Orange County Flood Control District
( "DISTRICT "), the City of Costa Mesa ( "COSTA MESA "), the City of Irvine ( "IRVINE "),
the City of Laguna Hills ( "LAGUNA HILLS "), the City of Laguna Woods ( "LAGUNA WOODS "),
the City of Lake Forest ( "LAKE FOREST "), the City of Newport Beach ( "NEWPORT BEACH "),
the City of Orange ( "ORANGE "), the City of Santa Ana ( "SANTA ANA"), the City of Tustir
( "TUSTIN "), the Irvine Ranch Water District ( "IRWD "), The Irvine Company ( "TIC "), the
California Department of Transportation ( "CALTRANS "), Tustin Legacy Community Partners
( "TLCP "), Lennar Homes of California, Inc.( "LENNAR "), and Orange County Great Park
Corporation ( "GPC "). The seventeen entities are hereinafter sometimes jointly
referred to as the "PARTIES" and individually as "PARTY ". The cities are hereinafter
sometimes jointly referred to as the "CITIES". Thirteen entities (all entities except
for CALTRANS, TLCP, LENNAR, and GPC) are sometimes jointly referred to as the
"ORIGINAL PARTIES."
WITNESSETH
WHEREAS, the ORIGINAL PARTIES entered into Agreement No. D99 -128 on
September 18, 2003, referred to hereinafter as "AGREEMENT ", to provide funding for the
Nutrient, Fecal Coliform and Toxics Total Maximum Daily Load (TMDL) studies in the
Newport Bay Watershed; and,
WHEREAS, the PARTIES approved Amendment 1 to Agreement No. D99 -128 on Ju17
5, 2006, which amended Section 3 (Funding), Section 4 (Program Budgets and Costs),
Section 5 (Payments), Section 10 (No Third Party Beneficiaries), Section 16 (Notices),
Exhibit A, and Exhibit C of the AGREEMENT in their entirety and added CALTRANS, TLCP,
LENNAR, and GPC as AGREEMENT participants; and,
WHEREAS, according to Section 6 of the AGREEMENT, the AGREEMENT may be
amended in writing only with the unanimous written approval of the PARTIES; and,
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Amendment No. 2 to Agreement No.D99 -128
1 WHEREAS, the PARTIES desire to extend the term of the AGREEMENT for two
2 (2) years to be consistent with the end of the current phase of the Nitrogen and
3 Selenium Management Program and to recognize prior payments for services made directly
by CALTRANS and IRWD, for work plan development and Bay algae studies respectively, as
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credits in the 2008 -09 program budget.
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NOW, THEREFORE, in consideration of the foregoing, it is agreed by and
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between the PARTIES hereto that the AGREEMENT shall be amended as follows:
7 Section 1. Each and all of the provisions of the AGREEMENT remains in
8 full force and effect, except that all references to Resources and Development
9 Management Department or RDMD shall be amended to OC Public Works and Section 2 and
10 Section 9 are amended in their entirety, as follows:
11 Section 2. Section 2 of the AGREEMENT, entitled "TERM ", shall be amended
to read in full as follows: The term of this AGREEMENT is extended for a two -year
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period, commencing on July 1, 2008 and continuing to and including June 30, 2010,
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unless sooner terminated as provided in Section 8.
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Section 9. Section 4 of the AGREEMENT, entitled "PROGRAM BUDGET AND COSTS','
15 shall be amended to read in full as follows: The COUNTY shall submit a scope of work
16 and a budget for the following fiscal year to each of the PARTIES by February 15 of
17 each year. The budget shall contain an explanation of any recommended program
18 changes, an estimate of all planned expenditures and an estimate of the payment
19 required from each PARTY for the following fiscal year. For the State of California
20 budgeting requirements, CALTRANS' contribution shall not exceed $150,000 or five
percent (5.0 %) of the total budget costs, whichever is less, for each fiscal year
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during the term of the AGREEMENT. If CALTRANS contribution would be greater than
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$150,000 for a given fiscal year, the amount over $150,000 ( "EXCESS AMOUNT ") shall be
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cost - shared as described in Section 2 of AMENDMENT 1, with the exception that for such
24 EXCESS AMOUNT, the ORIGINAL COST ALLOCATION shall be ninety -three percent (930) and
25 CALTRANS contribution shall be zero percent (0 %).
26 The PARTIES shall be permitted to review and approve the program scope of
work and budget for the forthcoming year. Criteria for approval shall be affirmative
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Amendment No. 2 to Agreement No.D99 -12
written responses from all of the PARTIES. The COUNTY and DISTRICT will constitute
one approving PARTY.
The tasks and expenditures for each fiscal year will be presented and
calculated as shown in Exhibit C, which is attached hereto and made a part hereof.
All tasks and expenditures will be updated each fiscal year as part of the budget
approval process. Therefore, Exhibit C as attached is a form to be completed every
year. The COUNTY shall be entitled to charge to the program all costs for direct
labor, materials, equipment and outside contract services for costs associated with
carrying out the approved scope of work. Recoverable costs will also include an
overhead charge calculated by the County Auditor - Controller which includes OC Public
Works overhead and County -wide cost allocation plan.
CALTRANS and IRWD will receive credits of $75,000 and $6,932.86
respectively in the fiscal year 2008 -09 program budget for prior payments for services
related to the AGREEMENT.
IN WITNESS WHEREOF, the PARTIES hereto have executed this AGREEMENT the
day and year first above written:
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I Date:
APPROVED AS TO FORM:
COUNTY COUNSEL
By:
Punam P. Prahalad, Deputy
I Date:
Amendment No. 2 to Agreement No.D99 -121
COUNTY OF ORANGE,
a political subdivision of the State of
California
By:
Bryan Speegle, Director, OC Public Works
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IDate:
(APPROVED AS TO FORM:
(ATTEST:
City Clerk
Amendment No. 2 to Agreement No.D99 -12f
CITY OF COSTA MESA
By:
Mayor
City Attorney of Costa Mesa
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Date:
APPROVED AS TO FORM:
ATTEST:
City Clerk
Amendment No. 2 to Agreement No.D99 -12£
CITY OF IRVINE
By:
Mayor
City Attorney of Irvine
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Date:
APPROVED AS TO FORM:
FATTEST:
City Clerk
Amendment No. 2 to Agreement No.D99 -12E
CITY OF LAGUNA HILLS
By:
Mayor
City Attorney of Laguna Hills
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Date:
APPROVED AS TO FORM:
]ATTEST:
City Clerk
Amendment No. 2 to Agreement No.D99-
CITY OF LAGUNA WOODS
By:
Mayor
City Attorney of Laguna Woods
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I Date:
JAPPROVED AS TO FORM:
(ATTEST:
City Clerk
Amendment No. 2 to Agreement No.
CITY OF LAKE FOREST
By:
Mayor
City Attorney of Lake Forest
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Date:
APPROVED AS TO FORM:
ATTEST:
City Clerk
Amendment No. 2 to Agreement No.D99 -126
CITY OF NEWPORT BEACH
By:
Mayor
City Attorney of Newport Beach
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Date:
(APPROVED AS TO FORM:
ATTEST:
City Clerk
Amendment No. 2 to Agreement No,
CITY OF ORANGE
By:
Mayor
City Attorney of Orange
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Date:
APPROVED AS TO FORM:
ATTEST:
City Clerk
Amendment No. 2 to Agreement No.D99 -12E
CITY OF SANTA ANA
By:
Mayor
City Attorney of Santa Ana
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Amendment No. 2 to Agreement No.D99 -12£
CITY OF TUSTIN
Date: By:
Mayor
JAPPROVED AS TO FORM:
ATTEST:
City Clerk City Attorney of Tustin
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Date:
Date:
Amendment No. 2 to Agreement No.
THE IRVINE RANCH WATER DISTRICT
By:
M
Name:
Title:
Name:
Title:
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Amendment No. 2 to Agreement No.099 -12E
THE IRVINE COMPANY
Date: By:
I Date:
Name:
Title:
Sy:
Name
Title:
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Amendment No. 2 to Agreement No.D99 -12£
CALIFORNIA DEPARTMENT OF TRANSPORTATION
IDate: By:
IDate:
By:
Name:
Title:
Name:
Title:
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Amendment No. 2 to Agreement No.D99 -12£
TUSTIN LEGACY COMMUNITY PARTNERS, LLC
a Delaware limited liability company
Date: By:
Date:
By:
Ken Nishikawa
VP Shea Properties,
Director of Engineering
Tustin Legacy Community Partners, LLC
Name:_
Title:
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Date:
Date:
Amendment No. 2 to Agreement No.D99 -12£
Lennar Homes of California,
a Developer Member of Heritage Fields Limited
Liability Company
By:
Name:
Title:
By:
Name•_
Title
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Amendment No. 2 to Agreement No.D99-
GREAT PARK CORPORATION,
a California non - profit organization
Date: By:
Date:
By:
Name:
Title:
Name:
Title:
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Amendment �0. 1 to Agreement No.D99 -128
AMENDMENT NO. 1
AGREEMENT TO FUND NUTRIENT, FECAL COLIFORM AND TOXICS TOTAL MAXIMUM DAILY LOAD (TMDL.)
STUDIES IN THE NEWPORT BAY WATERSHED
THIS AMENDMENT, for purposes of identification numbered Amendment No. 1 to
Agreement No. D99 -128, is made and entered into this >` h,- day of .QAL4_, 2006
("AMENDMENT "), by and between the County of Orange ( "COUNTY "), the Orange County Flood
Control District ( "DISTRICT "), the City of Costa Mesa ( "COSTA MESA "), the City of
Irvine ( "IRVINE "), the City of Laguna Hills ( "LAGUNA HILLS "), the City of Laguna Woods
( "LAGUNA WOODS "), the City of Lake Forest ( "LAKE FOREST "), the City of Newport Beach
( "NEWPORT BEACH"), the City of Orange ( "ORANGE "), the City of Santa Ana ( "SANTA ANA "),
the City of Tustin ( "TUSTIN "), the Irvine Ranch Water District ( "IRWD "), The Irvine
Company ( "TIC "), the California Department of Transportation ( "CALTRANS "), Tustin
Legacy Community Partners ( "TLCP "), Lennar Homes of California, Inc.( "LENNAR "), ano -
Orange County Great Park Corporation ( "GPC "). The seventeen entities are hereinafter
sometimes jointly referred to as the "PARTIES" and individually as "PARTY". The cities
are hereinafter sometimes jointly referred to as.the "CITIES ". Thirteen entities (all
entities except for CALTRANS,. TLCP, LENNAR, and GPC) are sometimes jointly referred to
[as the °ORIGINAL PARTIES."
WITNESSETH
WHEREAS, the ORIGINAL PARTIES entered into Agreement No. D99 -128 on
(September 18, 2003, referred to hereinafter as "AGREEMENT ", to provide funding for the
lNutr.ient, Fecal Coliform and Toxics Total Maximum Daily Load (TMDL) studies in the
Newport Bay Watershed; and,
WHEREAS, according to Section 6 of the AGREEMENT, the AGREEMENT may be
lamended in writing only with the unanimous written approval of the ORIGINAL PARTIES;
I and,
WHEREAS; the ORIGINAL PARTIES agree to amend the AGREEMENT to add-
CALTRANS, TLCP, LENNAR and GPC as PARTIES to the AGREEMENT; and,
WHEREAS, the PARTIES have reached agreement on a new funding formula,
which states that (1) CALTRANS will contribute a fixed five percent (5.0 %) of the
1
Amendment No. 1 to Agreement No.D99 -128
1 11total budget cost, (2) TLCP will contribute a fixed two and one half percent (2.5 %) of
2 Ilthe total budget cost, (3) LENNAR will contribute a fixed two and one half percent
3 (2.5 %) of the total budget cost, (4) GPC will contribute a fixed two percent (2.0 %) of
4 the total budget cost, and (5) the ORIGINAL PARTIES will cost -share eighty eight -
percent (88 %) of the total budget costs;
5
WHEREAS, the ORIGINAL PARTIES will further cost -share their 88%
611 based upon the original cost -share formula in the AGREEMENT, such that (1) the COUNTY,
DISTRICT and CITIES contributions are based on the watershed land area and population
8 11applied to the formula in the Amendment and Reinstatement of the National Pollutant
9 Discharge Elimination System Stormwater Implementation Agreement dated June 25, 2002,
10 and (2) TIC and IRWD contributions are based on a fixed twelve and one -half percent
11 (12.5 %) each.
12 NOW, THEREFORE, in consideration of the foregoing, it is agreed by and
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between the PARTIES hereto that the AGREEMENT shall be amended as follows:
Section 1. Each and all of the provisions of the AGREEMENT remains in
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full force and effect, except that Section 3, Section 4, Section 5, Section 10 and
15 Section 16 and Exhibit A and Exhibit C are amended in their entirety, as follows:
16 Section 2. Section 3 of the AGREEMENT, entitled "FUNDING," shall be
17 amended to read in full as follows: Exhibit A, which is attached to this AMENDMENT
18 and by this reference is.made a part hereof, presents the cost -share allocations for
19 the PARTIES. As stated in Exhibit A (Table A -1), for the duration of the AGREEMENT as
20 amended, the ORIGINAL PARTIES shall provide eighty -eight percent (88 %) of the total
budget costs, CALTRANS shall provide five percent (5.0 %) of the total budget costs,
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TLCP shall provide two and one half percent (2.5 %) of the total budget costs, LENNAR
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shall provide two and one half percent (2.5 %) of the total budget costs, and Orange
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County Great Park Corporation shall provide two percent (2.0 %) of the total budget
24 costs. As shown in Exhibit A STable A -2), the ORIGINAL PARTIES' eighty eight percent
25 (88 %) share of the total budget costs (hereafter "ORIGINAL COST ALLOCATION ") shall be
26 cost - shared between an urban allocation and an open space allocation. The urban
allocation shall remain at seventy five percent (75 %) of the ORIGINAL.COST ALLOCATION
2
Amendm n� No. 1 to Agreement No.D99 -12'.,
1 and the respective shares of IRWD and TIC shall remain at twelve and one half percent
2 (12.5 %) of the ORIGINAL COST ALLOCATION for the duration of this AGREEMENT as amended
3 herein. The individual cost shares for the COUNTY, DISTRICT and CITIES will be
4 revised once every year pursuant to the formula provided in Exhibit B to the
AGREEMENT, which is attached to the AGREEMENT and made a part hereof, based on changes
5
in watershed land area and population. The individual cost shares for the COUNTY,
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DISTRICT and CITIES shall be calculated by the COUNTY Resources and Development
7 Management Department, Environmental Resources Section from population, land area and
6 watershed area data. These calculations shall be completed by January 1 of each year
9 and shall be included in the annual budget proposal.
10 Section 3, Section 4 of the AGREEMENT, entitled "PROGRAM BUDGETS AND
11 COSTS" shall be amended to read in full as follows: The COUNTY shall submit a scope
12 of work and a budget for the following fiscal year to each of the PARTIES by February
15 of each year. The budget shall contain an explanation of any recommended program .
13
changes, an estimate of all planned expenditures and an estimate of the payment
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required from each PARTY for the following fiscal year. For the State of California
15 budgeting requirements, CALTRANS' contribution shall not exceed $150,000 or five
16 percent (5.0%) of the total budget costs, whichever is less, for each fiscal year
17 during the term of the AGREEMENT. If CALTRANS contribution would be greater than
18 $150,000 for a given fiscal year, the amount over $150,000 ( "EXCESS AMOUNT ") shall be
19 cost - shared as described in Section 2 of this Amendment, with the exception that for
20 such EXCESS AMOUNT, the ORIGINAL COST ALLOCATION shall be ninety -three percent (93%)
and CALTRANS contribution shall be zero percent (0$).
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The PARTIES shall be permitted to review and approve the program scope of work
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and budget for the forthcoming year. Criteria for approval shall be affirmative
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written responses from all of the PARTIES. The COUNTY and DISTRICT will constitute
24 one approving PARTY.
25 The tasks and expenditures for each fiscal year will be presented and calculated
26 as shown in Exhibit C, which is attached hereto and made a part hereof. All tasks and
expenditures will be updated each fiscal year as part of the budget approval process.
3
ii \ \/
Amendment No. 1 to Agreement No. ➢99-
1 Therefore, Exhibit C as attached is a form to be completed every year. The COUNTY
2 shall be entitled to charge to the program all costs for direct labor, materials,
3 equipment and outside contract services for costs associated with carrying out the
4 approved scope of work. Recoverable costs will also include an overhead charge
calculated by the County Auditor - Controller which includes Resources and Development
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Management Department overhead and County -wide cost allocation plan.
6
Section 4. Section 5 of the AGREEMENT, entitled "PAYMENTS" shall be
7 amended to read in full as follows: Within 15 calendar days of the effective date of
8 this AMENDMENT, the COUNTY shall send the PARTIES an invoice for a deposit which
9 constitutes their share of the total first year costs identified in Exhibit C (Table
10 C -1). Each of the PARTIES shall pay the deposit within 45 calendar days of their
11 respective receipt of the invoice.
12 The COUNTY shall notify each of the PARTIES if it appears that costs may exceed
13 the budget approved by the PARTIES in any fiscal year. The COUNTY shall prepare a
fiscal year end accounting within 60 calendar days of the end of the fiscal year. If
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the fiscal year end accounting results in costs (net of interest earnings) exceeding
15 the sum of the deposits, and the COUNTY has notified the PARTIES of
p potential cost
16 overruns, the COUNTY shall seek approval of the excess cost from the PARTIES in the
17 form of a revised budget and, upon approval, shall invoice each PARTY for its prorated)
18 share of the excess cost up to the amount of the revised approved budget. Each PARTY
19 shall pay the billing within 45 calendar days of the date of the invoice. If the
20 fiscal year end accounting results in the sum of the deposits exceeding costs (net of
21 interest earnings), the excess deposits will carry forward to reduce the billings for
the following year. The fiscal year end accounting results and associated invoices
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for each PARTY will take into consideration any outside funding provided for programs
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11in the approved budget from entities not party to this AMENDMENT in the manner
24 presented in Exhibit C (Table C -2).
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After the initial billing for the program, the COUNTY shall invoice each PARTY
25 for its annual deposit at the beginning (July 1) of each fiscal year. Each PARTY
shall pay the deposit within 45 calendar days of the date of the invoice. Each
4
Amendmen-t No. 1 to Agreement No.D99 -128
1 IIPARTY'S deposit shall be based on its prorated share of the approved annual budget,
2 Ilreduced by the sum of (a) its prorated share of any surplus identified in the prior
3 fiscal year end accounting, and (b) its prorated share of any funding provided for
4 .programs in the approved budget from entities not party to this AMENDMENT.
Interest earned on the PARTIES' deposits will not be paid to the PARTIES, but -.
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will be credited against the PARTIES' share of the program costs.
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Upon termination of the program, a final accounting shall be performed by the
7 COUNTY. If costs remaining after the deduction of interest costs exceed the sum of
8 the deposits, the COUNTY shall invoice each PARTY for its prorated share of the
9 deficit. Each PARTY shall pay the invoice within 45 calendar days of the date of the
10 invoice. If the sum of the deposits, including interest, exceeds the costs, the
11 COUNTY shall reimburse to each PARTY its prorated share of the excess, within 45
12 calendar days of the final accounting.
13
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Section 5. Section 10 of the AGREEMENT, entitled "NO THIRD PARTY
BENEFICIARIES ", is amended to read in full as follows: Nothing expressed or mentioned
in this AGREEMENT is intended or shall be construed to give any person, other than the
15 1i PARTIES hereto and any entity in which a PARTY has a legal interest (such as, but not
16 limited to, a limited liability membership interest or a partnership interest), and
17 any permitted successors or assigns of a PARTY, any legal or equitable right, remedy
18 or claim under or in respect of this AGREEMENT or any provisions herein contained.
19 This AGREEMENT and any conditions and provisions hereof is intended to be and is for
20 the sole and exclusive benefit of the PARTIES and the entities in which they have a
legal interest and their successors or assigns and for the benefit of no other person„
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agency or entity.
22
Section 6. Section 16 of the AGREEMENT, entitled "NOTICES ", shall be
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amended to read in full as follow: All notices required or desired to be given under
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this AGREEMENT as amended shall be in writing and (a) delivered personally, or (b)
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sent by certified mail, return receipt requested or (c) sent by telefacsimile
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communication followed by a mailed copy, to the addresses specified below, provided
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Amendmeft No. 1 to Agreement No.D99 -128
1 each PARTY may change the address for notices by giving the other PARTIES at least ten
2 (10) days written notice of the new address. Notices shall be deemed received when
3 actually received in the office of the addressee or when delivery is refused, as shown
4 on the receipt of the U.S. Postal service, or other person making the delivery, except
5 that notices sent by telefacsimile communication shall be deemed received on the first
6 business day following transmission.
7 Director of Public Services
City of Costa Mesa
8 P.O. Box 1200
Costa Mesa, CA 92628 -1200
9 Facsimile: (714) 754 -5028
15 Director of Community Development
City of Laguna Woods
16 24264 E1 Toro Road
Laguna Woods CA 92637
17 Facsimile: (949) 639 -0591
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Director of Public Works
City of Lake Forest
25550 Commercentre Dr. Ste 100
Lake Forest, CA 92630
Facsimile: (949) 461 -3511
Director of Public Works
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92658
Facsimile: (949) 718 -1840
Director of Public Works
City of Orange
300 E. Chapman Ave
Orange, CA 92866
Facsimile: (714) 532 -6444
Director of Public Works
City of Santa Ana
101 W. 4` ".St.
C
Director of Public Works
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City of Irvine
P.O. Box 19578
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Irvine, CA 92623 -9578
Facsimile: (949) 724 -6440
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Director of Public Services
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City of Laguna Hills
24035 E1 Toro Road
Laguna Hills, CA 92653
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Facsimile: (949) 707 -2633
15 Director of Community Development
City of Laguna Woods
16 24264 E1 Toro Road
Laguna Woods CA 92637
17 Facsimile: (949) 639 -0591
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Director of Public Works
City of Lake Forest
25550 Commercentre Dr. Ste 100
Lake Forest, CA 92630
Facsimile: (949) 461 -3511
Director of Public Works
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92658
Facsimile: (949) 718 -1840
Director of Public Works
City of Orange
300 E. Chapman Ave
Orange, CA 92866
Facsimile: (714) 532 -6444
Director of Public Works
City of Santa Ana
101 W. 4` ".St.
C
Amendmen �No. 1 to Agreement No.D99 -12(
1 Santa Ana, CA 92701
Facsimile: (714) 647 -5635
2
Director of Public Works
3 City of Tustin
300 Centennial Way
Tustin, CA 92780
4 Facsimile: (714) 734 -8991
5 Director, RDMD
County of orange
6 300 N. Flower Street
Santa Ana, CA 92702 -4048
7 Facsimile: (714) 834 -2395
Director, Water Quality
6 Irvine Ranch Water District
3512 Michelson Dr
9 Irvine, CA 92712
Facsimile: (949) 453 -1228
10
Vice President of Environmental Affairs
11 The Irvine Company
550 Newport Center
Newport Beach, CA 92658 -8904
12 Facsimile: (949) 720 -2448
13 Office Chief, Environmental Planning
California Department of Transportation
14 3337 Michelson Dr. Ste 380
Irvine, CA 92612 -8894
15 Facsimile: (949) 724 -2519
David B. Placek
16 Tustin Legacy Community Partners
Senior Project Manager
17 250 Commerce, Suite 100
Irvine, CA 92602
18 Facsimile: (949) 453 -8994
19 Lennar Homes of California
Jim Werkmeister
20 7030 Trabuco Road, Building 83
Irvine, California 92618
Facsimile: (949) 551 -1186
21
Glen Worthington, Manager of Planning
22 Orange County Great Park Corporation
P.O. Box 19575
23 Irvine, CA 92623 -9575
Facsimile: (949) 724 -7407
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IN WITNESS WHEREOF, the PARTIES hereto have executed this AMENDMENT the day and
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year first above written: _
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11 Date: 6 ^ 27 - 0&
APPROVED AS TO FORM:
COti
IBy:
Dat
SIGNED AND CERTIFIED THAT A COPY OF
THIS AGREEMENT HAS BEEN DELIVERED TO
THE CHAIRMAN OF THE BOARD
Amendment No. 1 to Agreement No.
COUNTY OF ORANGE,
a political subdivision of the State of
California
By: _ 999M Chairman pervisors
ORANGE COUNTY FLOOD CONTROL DISTRICT
a body corporate and
d pooll�i /t,/,iic
By: W l..da7'1l�C.YY
. Chairman of theboatA of 6upervisors
O i,1
M
Y.
,.. ,V OdM
Clerk of the Board of Supervisors of
Orange County, California
Date: L — a7 ^ Q(p
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IDate: '7_5 -0Y
APPROVED AS TO FORM:
ATTEST:
'v_
Amendment No. 1 to Agreement No.D99 -12
CITY OF NEWPORT BEACH
By: c:)- uW
Mayor
Clerk yeCity Attorney of Newport Beach
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3d
Agreement No. D99-12
1 AGREEMENT TO FUND NUTRIENT, FECAL COLIFORM AND TOXICS TOTAL MAXIMUM DAILY LOAD (TMDL)
STUDIES IN THE NEWPORT BAY WATERSHED
2
3 THIS AGREEMENT, for purposes of identification numbered D99-1281,is made and
4 entered into this 18th day of September, 2003, by and between the County of Orange
( "COUNTY "), the Orange County Flood Control District ( "DISTRICT "), the City of Costa
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Mesa ( "COSTA MESA "), the City of Irvine ( "IRVINE ") , the City of Laguna Hills ("LAGUNA
6
HILLS "), the City of Laguna Woods ( "LAGUNA WOODS "), the City of Lake Forest ( "LAKE
7 FOREST "), the City of Newport Beach ( "NEWPORT BEACH "), the City of Orange ( "ORANGE "),
8 the City of Santa Ana ( "SANTA ANA "), the City of Tustin ( "TUSTIN "), the Irvine Ranch
9 Water District ( "IRWD ") and The Irvine Company ( "TIC "). The thirteen entities are
10 hereinafter sometimes jointly referred to as the "PARTIES" and individually as
11 "PARTY ". The cities are hereinafter sometimes jointly referred to as the "CITIES ".
WITNESSETH
12
WHEREAS, the California Regional Water Quality. Control Board, Santa Ana Region
13
( "REGIONAL BOARD ") has adopted Resolution No. 98 -9, as amended by Resolution No. 98-
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100 amending the Water Quality Control Plan for the Santa Ana River Basin to
15 incorporate a Nutrient TMDL for the Newport Bay /San Diego Creek Watershed on April 17,
16 1998 and Resolution 99 -10 amending the Water Quality Control Plan for the Santa Ana
17 River Basin to incorporate a TMDL for Fecal Coliform in Newport Bay on April 9, 1999
18 pursuant to the provisions of section 303(d) of the Clean Water Act; and,
19 WHEREAS, the United States Environmental Protection Agency (USEPA) has
20 established TMDLs for toxic pollutants, San Diego Creek and Newport Bay, California or
June-14, 2002, and the REGIONAL BOARD is developing implementation plans for each of
21
the toxic pollutants; and, -
22
WHEREAS, the adopted TMOLs contain requirements for studies, monitoring and the
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development of programs to attain TMDL reduction targets over a multi -year period;
24 and,
25 WHEREAS, the PARTIES intend this AGREEMENT to provide for the performance of
26 studies, monitoring and development of programs and funding therefore for a period
through to June 30, 2008 after which it is recognized that additional agreements may
1
Agreement No.D99 -12£
1 be necessary for further monitoring, studies and load reduction implementation
2 projects over the period covered by the TMDLs; and,_
3 WHEREAS, the PARTIES recognize that some expenditures required for compliance
4 with the TMDLs have been incurred prior to this agreement and that these costs are
incorporated in Exhibit C -1.
5
WHEREAS the PARTIES have reached agreement on a funding formula, which for the
6
COUNTY, DISTRICT and CITIES is based on the watershed land area and population applied
7 to the formula in the Amendment and Reinstatement of the National Pollutant Discharge,
8 Elimination System Stormwater Implementation Agreement dated June 25, 2002, and which
9 for TIC and IRWD is based on a fixed twelve and one -half percent (12.5 %) contribution.
10 NOW, THEREFORE, in consideration of the foregoing, the PARTIES agree as follows:
11 Section 1. PURPOSE. This AGREEMENT is entered into for the purpose of funding
and performing studies, research, monitoring and the development of programs related
12
to the adopted TMDLs for nutrients, fecal coliform and toxics in San Diego Creek and
13
Newport Bay watersheds.
14
Section 2. TERM. The term of this AGREEMENT shall commence upon approval and
15 execution of this document by all signatories to this AGREEMENT and shall continue
16 until June 30, 2006, unless sooner terminated as provided in Section S.
17 Section 3. FUNDING. Exhibit A, which is attached and by this reference is made
16 a part hereof, presents the cost share allocations for the PARTIES. -
19 The urban allocation in Exhibit A shall remain at seventy five percent (75 %) for the
20 duration of the AGREEMENT, but the individual cost shares for the COUNTY, DISTRICT and
CITIES will be revised once every year pursuant to the formula provided in Exhibit B,
21
which is attached hereto and made a part hereof, based on changes in watershed land
22
area and population. The percentage share shall be calculated by the COUNTY Public
23
Facilities and Resources Department, Environmental Resources Section from population,
24 land area and watershed area data. These calculations shall be completed by January 1
25 of each year and shall be included in the annual budget proposal. The respective
26 shares of IRWD and TIC shall remain at twelve and one half percent (12.5 %) each for
the duration of this AGREEMENT.
2
Agreement No.D99 -12f
1 Section 4. PROGRAM BUDGET AND COSTS. The COUNTY shall submit a scope of work and
2 a budget for the following fiscal year to each of the PARTIES by February 15 of each
3 year. The budget shall contain an explanation of any recommended program changes, an
4 estimate of all planned expenditures and an estimate of the payment required from each
PARTY for the following fiscal year.
5
The PARTIES shall be permitted to review and approve the program scope of work
6
and budget for the forthcoming year. criteria for approval shall be affirmative
7 written responses from all of the PARTIES. The COUNTY and DISTRICT will constitute
8 one approving PARTY.
9 The first year tasks and expenditures for FY 02/03 are six hundred twenty -five
10 thousand and nine hundred nineteen dollars ($625,919) as shown in Exhibit C -1, which
11 is attached hereto and made a part hereof. The budget for the scope of work for FY
12 03/04 is six hundred ninety thousand and two hundred and twenty dollars ($690,220) as
-shown in Exhibit C -2, which is attached hereto and made a part hereof. The COUNTY
13 .
shall be entitled to charge to the program all costs for direct labor, materials,
14
equipment and outside contract services for costs associated with carrying out the
15
approved scope of work. Recoverable costs will also - include an overhead charge
16 calculated by the County Auditor - Controller which includes Public Facilities and
17 Resources Department overhead and County -wide cost allocation plan.
18 Section 5. PAYMENTS. Within 15 calendar days of.the effective date of this
19 AGREEMENT, the COUNTY shall send the PARTIES an invoice for a deposit which
20 constitutes their share of the total first year costs identified in Exhibit C -3, which
21 is attached hereto and made a part hereof. Each of the PARTIES shall pay the deposit
within 45 calendar days of their respective receipt of the invoice.
22
The COUNTY shall prepare a fiscal year end accounting within 60 calendar days of
23
the end of the fiscal year. If the fiscal year end accounting results in costs (net
24 of interest earnings) exceeding the sum of the deposits, the COUNTY shall seek
25 approval of the excess cost from the PARTIES and shall invoice each PARTY for its
26 prorated share of the excess cost up to the amount of the revised approved budget.
Each PARTY shall pay the billing within 45 calendar days of the date of the invoice.
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Agreement No.D99-
IIf the fiscal year end accounting results in the sum of the deposits exceeding costs
II(net of interest earnings), the excess deposits will carry forward to reduce the
billings for the following year.
After the initial billing for the program, the COUNTY shall invoice each PARTY
for its annual deposit at the beginning (July 1) of each fiscal year. Each PARTY
shall pay the deposit within 45 calendar days of the date of the invoice. Each
PARTY'S deposit shall be based on it's prorated share of the approved annual budget,
reduced by its prorated share of any surplus identified in the prior fiscal year end
accounting.
Interest earned on the PARTIES' deposits will not be paid to the PARTIES, but
Iwill be credited against the PARTIES' share of the program costs.
Upon termination of the program, a final accounting shall be performed by the
COUNTY. If costs remaining after the deduction of interest costs exceed the sum of
the deposits, the COUNTY shall invoice each PARTY for its 'Prorated share of the
i,deficit. Each PARTY shall pay the invoice within 45 calendar days of the date of the
invoice. If the sum of the deposits, including interest, exceeds the costs, the
COUNTY shall reimburse to each PARTY its prorated share of the excess, within 45
calendar days of the final accounting.
Section 6. AMENDMENT. This AGREEMENT may be amended in writing only with the
unanimous written approval of the parties.
Section 7. LIABILITY. It is mutually understood and agreed that, merely by the
virtue of entering into this AGREEMENT, each PARTY neither relinquishes any rights nor
assumes any liabilities for its own actions or the actions of other PARTIES. It is
the intent of the PARTIES that the rights and liabilities of each Party shall remain
the same, while this AGREEMENT is in force, as it was before this AGREEMENT was ,made,
except as otherwise specifically provided in this agreement.
Section 8. TERMINATION. Any PARTY wishing to terminate its participation in
this AGREEMENT shall so notify all other PARTIES in writing by March 1 of any year.
Such termination shall be effective the following June 30. The terminating PARTY
shall be responsible for financial obligations hereunder to the extent incurred in
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Agreement No.D99-
laccordance with this agreement by the PARTY prior to the effective date of
!,ltermination. The balance of the PARTIES may continue in the performance of the terms
land conditions of this AGREEMENT on the basis of a revised allocation of cost based on
the funding formula in Exhibit A, provided however, that the pro rata shares for TIC
and IRWD shall never exceed twelve and one-half percent (12.5 %).
Section 9. AVAILABILITY OF FUNDS. The obligation of each PARTY is subject to
the availability of funds appropriated for this purpose, and nothing herein shall be
construed as obligating the PARTIES to expend or as involving the PARTIES in any
contract or other obligation for the future payment of money in excess of
appropriations authorized by law.
Section 10. NO THIRD PARTY BENEFICIARIES. Nothing expressed or mentioned in this
AGREEMENT is intended or shall be construed to give any person, other than the PARTIES
hereto, and any permitted successors, any legal or equitable right, remedy or claim
under or in respect of this AGREEMENT or any provisions herein contained. This
AGREEMENT and any conditions and provisions hereof is intended to be and is for the
sole and exclusive benefit of the PARTIES hereto and for the benefit of no other
person, agency or entity.
Section 11. REFERENCE TO CALENDAR DAYS. Any reference to the word "day" or
"days" herein shall mean calendar day or calendar days, respectively, unless otherwise
expressly provided.
Section 12. ATTORNEYS FEES. In any action or proceeding brought to enforce
or interpret any provision of this AGREEMENT, or where any provision hereof is
asserted as a defense, each PARTY shall bear its own attorneys' fees and costs
Section 13. ENTIRE AGREEMENT. This AGREEMENT is intended by the PARTIES as
a final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the PARTIES hereto in respect of the
subject matter contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein. This AGREEMENT
5
Agreement No.D99 -12
1 supersedes all prior agreements and understandings between the PARTIES with respect t(
2 such matter.
3 Section 19. SEVERABILITY. If any part of this AGREEMENT is held,
4 determined or adjudicated to be illegal, void, or unenforceable by a court of
5 competent jurisdiction, the remainder of this AGREEMENT shall be given effect to the
6 fullest extent reasonably possible.
7 Section 15. SUCCESSORS AND ASSIGNS. The terms and provisions of this
$ AGREEMENT shall be binding upon and inure to the benefit of the PARTIES hereto and
9 their successors and assigns.
10 Section 16. NOTICES. All notices required or desired to be given under
11 this AGREEMENT shall be in writing and (a) delivered personally, or (b) sent by
12 certified mail, return receipt requested or (c) sent by telefacsimile communication
13 followed by a mailed copy, to the addresses specified below, provided each PARTY may
14 change the address for notices by giving the other PARTIES at least ten (10) days
15 written notice of the new address. Notices shall be deemed received when actually
16 received in the office of the addressee or when delivery is refused, as shown on the
17 receipt of the U.S. Postal service, or other person making the delivery, except that
1$ notices sent by telefacsimile communication shall be deemed received on the first
19 business day following transmission.
20 Director of Public Services
City of Costa Mesa
21 P.O. Box 1200
Costa Mesa, CA 92628 -1200
22 Director of Public Works
City of Irvine
23 P.O. Box 19578
Irvine, CA 92623 -9578 - -
24
Director of Public Works
25 City of Laguna Hills - -
25201 Paseo de Alicia, #150
26 Laguna Hills, CA 92653
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Agreement No.D99-
Director of Public Works
City of Laguna Woods
24310 Moulton Pkwy, Ste K
P.O. Box 2220
Laguna Hills, CA 92653
Director of Public Works
City of Lake Forest
23161 Lake Center Dr., #100
Lake Forest, CA 92630
Director of Public Works
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92658
Director of Public Works
City of Orange
300 E. Chapman Ave
P.O. Box 449
Orange, CA 92866
Director of Public Works
City of Santa Ana
101 W. 4`" St.
Santa Ana, CA 92701
Director of Public Works
City of Tustin
300 Centennial Way
Tustin, CA 92680
Director, PFRD
County of Orange
P.O. Box 4048
Santa Ana, CA 92702 -4048
Director, Water Quality
Irvine Ranch Water District
3512 Michelson Dr
Irvine, CA 92712
Vice President of Environmental Affairs
The Irvine Company
550 Newport Center
Newport Beach, CA 92658 -8904
Section 17. EXECUTION OF AGREEMENT. This AGREEMENT may be executed in
counterpart and the signed counterparts shall constitute a single instrument.
24
Section 18. GOVERNING LAW AND VENUE. This AGREEMENT has been negotiated
25
and executed in the State of California and shall be governed by and construed under
26
the laws of the State of California. In the event of any legal action to enforce or
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Agreement No.D99-
interpret this AGREEMENT, the sole and exclusive venue shall be a court of competent
jurisdiction located in Orange County, California, and the PARTIES hereto agree to and
do hereby submit to the jurisdiction of such court, notwithstanding Code of Civil
Procedure section 394. Furthermore, the PARTIES have specifically agreed, as part of
the consideration given and received for entering into this AGREEMENT, to waive any
and all rights to request that an action be transferred for trial to another county
under Code of Civil Procedure Section 394 or any other provision of law.
IN WITNESS WHEREOF, the PARTIES hereto have executed this AGREEMENT the day and
year first above written:
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COUNTY OF ORANGE
Date: ID — 7—b — U3 -
APPROVED AS TO FORM:
COUNTY COU EL
By:
Deputy
Date: S-30 — 03 .
SIGNED AND CERTIFIED THAT A COPY OF
THIS AGREEMENT HAS BEEN DELIVERED TO
THE CHAIRMAN OF THE BOARD
By:
(A4hn��
DARLENE J. BLOOM
Clerk of the Board of Supervis s of
Orange County, California
Date: - b - Zb - 03
Agreement No.D99 -121
a political subdivi ion of the State of
California
By:
Chairman of the Board of Supervisors
ORANGE COUNTY FLOOD CONTROL DISTRICT
a body ,corporate �and politic
I " By: larva,
E
a
Chairman of the Board of Supervisors
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CITY OF NEWPORT BEACH
Date: 1, —) . —, 2003
ATTEST: i
City Clerk
By:
iA9a3
t
Agreement No.D99 -12E
Attorney of Newport Beach
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