HomeMy WebLinkAbout15 - Administration of TMDLs in Newport BayCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. is
June 24, 2003
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: City Manager's Office
Dave Kiff, Assistant City Manager
949/644 -3002 or dkiff @city.newport- beach.ca.us
SUBJECT: Cooperative Agreement -Administration of Total Maximum Daily
Loads (TMDLs) in Newport Bay
ISSUE:
Should the City of Newport Beach participate in a Cooperative Agreement to administer
Newport Bay's TMDLs on a watershed -wide basis?
RECOMMENDATION:
Authorize the City Manager to sign and execute the Cooperative Agreement to fund
Nutrient, Fecal Coliform and Toxics Total Maximum Daily Load (TMDL) Studies in the
Newport Bay Watershed.
DISCUSSION:
Newport Bay is an impaired water body per §303(d) of the federal Clean Water Act. As
such, the US Environmental Protection Agency (US EPA) and the State Water
Resources Control Board (SWRCB) via the California Regional Water Quality Control
Board, Santa Ana Region (Regional Board) is directed to prepare clean up plans --
called "Total Maximum. Daily Loads" (TMDLs) -- for the Bay. TMDLs attempt to
eliminate water quality impairments within a certain amount of time. Newport Bay is
listed on the §303(d) List for the following substances:
• Sediment
• Nutrients
• Fecal Coliform bacteria
• Toxic Pollutants
The adopted TMDLs contain requirements for studies, monitoring and the development
of programs to attain TMDL contaminant reduction targets over a multi -year period.
Cooperative Agreement for TMDLs
June 24, 2003
Page 2
Additionally, the requirements of the TMDLs are incorporated into the National Pollutant
Discharge Elimination System (NPDES) Municipal Separate Storm Sewer System
(MS4) Permit.
While Newport Bay is wholly within the city limits of Newport Beach, the Newport Bay
watershed includes more than 150 square miles of territory. Because the Bay's
impairments involve pollutants from throughout the watershed, the duty to adhere to the
TMDLs applies not just to Newport Beach but to many of the entities within the
watershed, including:
• The County of Orange;
• The Orange County Flood Control District;
• The Irvine Ranch Water District (IRWD);
• The Irvine Company; and
• The cities of Costa Mesa, Irvine, Laguna Hills, Laguna Woods, Lake Forest,
Orange, Santa Ana, and Tustin ( "watershed cities ").
Each of the parties listed above cooperates -- via the aptly -named Cooperative
Agreement -- in implementing the TMDLs. The parties developed the Agreement to
provide a long -term funding formula to ensure that the costs of compliance with the
TMDLs are shared equitably among the parties within the Newport Bay /San Diego
Creek watershed.
COOPERATIVE AGREEMENT COST SHARE ALLOCATIONS
COST
PROGRAM
LAND USE
SHARE
PARTICIPANTS
Costa Mesa
Irvine
Laguna Hills
Laguna Woods
Lake Forest
Urban
75%
Newport Beach
Orange
Santa Ana
Tustin
County of Orange
O.C. Flood Control
District
Open Space /Undefined Areas
12.5%
The Irvine Company
Open Space /Undefined Areas
12.5%
Irvine Ranch Water
District
Cooperative Agreement for TMDLs
June 24, 2003
Page 3
As shown above, the cost share allocations for the agreement are divided between
IRWD, The Irvine Company and the urban component assigned to the Watershed
Cities, County of Orange, and Orange County Flood Control District. The respective
shares of IRWD and The Irvine Company shall remain at 12.5 percent each for the
duration of this agreement. The urban cost share allocation for the 5 -year duration of
the agreement is 75 percent. The individual cost shares for the County of Orange and
Watershed Cities are provided for FY 2002 -2003 and FY 2003 -2004, and will be
calculated for each subsequent year pursuant to a formula based on land area within
the Newport Bay /San Diego Creek watershed and population.
The total budget for TMDL activities under this agreement for FY 2002 -2003 is
$625,919 and $690,620 in FY 2003 -04. Newport Beach will pay $40,764 for FY 2002-
03 and $44,977 for FY 2003 -04 or $85,741.00. The County of Orange administers the
Agreement, but did not bill in FY 2002 -03.
Committee Action: None.
Environmental Review: The City Council's approval of this Agenda Item does not
require environmental review.
Public Notice: This agenda item may be noticed according to the Ralph M. Brown Act
(72 hours in advance of the public. meeting at which the City Council considers the
item).
Funding Availability Funding for this action is provided for in the proposed FY 2003 -04
Capital Improvement Plan (page 43).
Submitted by:
Dave 10
Assistan City Manager
Attachments: Cooperative Agreement
Agreement No.D99 -128
1 AGREEMENT TO FUND NUTRIENT, FECAL COLIFORM AND TOXICS TOTAL MAXIMUM DAILY LOAD (TMDL)
STUDIES IN THE NEWPORT BAY WATERSHED
2
3 THIS AGREEMENT, for purposes of identification numbered D99 -128, is made and
entered into this day of , 2003 , by and between the County of Orange
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( "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
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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 ".
12 WITNESSETH
WHEREAS, the California Regional Water Quality Control Board, Santa Ana Region
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("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 on
June 14, 2002, and the REGIONAL BOARD is developing implementation plans for each of
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the toxic pollutants; and,
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WHEREAS, the adopted TMDLs 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 -12E
1 be necessary for further monitoring, studies and load reduction implementation
2 projects over the period covered by the TMDLs; and,
3 WHEREAS, the PARTIES recognize that some expenditures required for compliance
with the TMDLs have been incurred prior to this agreement and that these costs are
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incorporated in Exhibit C -1.
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WHEREAS the PARTIES have reached agreement on a funding formula, which for the
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COUNTY, DISTRICT and CITIES is based on the watershed land area and population applied
7 to the formula in the Amendment and Reinstatement of the National Pollutant Discharge
8 Elimination System Stormwater Implementation Agreement dated June 25, 2002, and which
9 for TIC and IRWD is based on a fixed twelve and one -half percent (12.5%) contribution.
10 NOW, THEREFORE, in consideration of the foregoing, the PARTIES agree as follows:
11 Section 1. PURPOSE. This AGREEMENT is entered into for the purpose of funding
12 and performing studies, research, monitoring and the development of programs related
to the adopted TMDLs for nutrients, fecal coliform and toxics in San Diego Creek and
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Newport Bay watersheds.
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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, 2008, unless sooner terminated as provided in Section 8.
17 Section 3. FUNDING. Exhibit A, which is attached and by this reference is made
18 a part hereof, presents the cost share allocations for the PARTIES.
19 The urban allocation in Exhibit A shall remain at seventy five percent (75 %) for the
duration of the AGREEMENT, but the individual cost shares for the COUNTY, DISTRICT and
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CITIES will be revised once every year pursuant to the formula provided in Exhibit B,
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which is attached hereto and made a part hereof, based on changes in watershed land
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area and population. The percentage share shall be calculated by the COUNTY Public
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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.
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Agreement No.D99 -12E
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
estimate of all planned expenditures and an estimate of the payment required from each
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PARTY for the following fiscal year.
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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
7 written responses from all of the PARTIES. The COUNTY and DISTRICT will constitute
8 one approving PARTY.
9 The first year tasks and expenditures for FY 02/03 are six hundred twenty -five
10 thousand and nine hundred nineteen dollars ($625,919) as shown in Exhibit C -1, which
11 is attached hereto and made a part hereof. The budget for the scope of work for FY
12 03/04 is six hundred ninety thousand and two hundred and twenty dollars ($690,620) as
shown in Exhibit C -2, which is attached hereto and made a part hereof. The COUNTY
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shall be entitled to charge to the program all costs for direct labor, materials,
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equipment and outside contract services for costs associated with carrying out the
15 approved scope of work. Recoverable costs will also include an overhead charge
16 calculated by the County Auditor - Controller which includes Public Facilities and
17 Resources Department overhead and County -wide cost allocation plan.
18 Section 5. PAYMENTS. Within 15 calendar days of the effective date of this
19 AGREEMENT, the COUNTY shall send the PARTIES an invoice for a deposit which
20' constitutes their share of the total first year costs identified in Exhibit C -3, which
is attached hereto and made apart hereof. Each of the PARTIES shall pay the deposit
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within 45 calendar days of their respective receipt of the invoice.
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The COUNTY shall prepare a fiscal year end accounting within 60 calendar days of
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the end of the fiscal year. If the fiscal year end accounting results in costs (net
24 of interest earnings) exceeding the sum of the deposits, the COUNTY shall seek
25 approval of the excess cost from the.PARTIES and shall invoice each PARTY for its
26 prorated share of the excess cost up to the amount of the revised approved budget.
,Each PARTY shall pay-the billing within 45 calendar days of the date of the invoice.
3
Agreement No.D99 -12f
1 If the fiscal year end accounting results in the sum of the deposits exceeding costs
2 (net of interest earnings), the excess deposits will carry forward to reduce the
3 billings for the following year.
4 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
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shall pay the deposit within 45 calendar days of the date of the invoice. Each
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PARTY'S deposit shall be based on it's prorated share of the approved annual budget,
7 reduced b its prorated share of an surplus identified in the
Y p y p prior fiscal year end
8 accounting.
9 Interest earned on the PARTIES' deposits will not be paid to the PARTIES, but
10 will be credited against the PARTIES' share of the program costs.
11 Upon termination of the program, a final accounting shall be performed by the
12 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
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deficit. Each PARTY shall pay the invoice within 45 calendar days of the date of the
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invoice. If the sum of the deposits, including interest, exceeds the costs, the
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COUNTY shall reimburse to each PARTY its prorated share of the excess, within 45
16 calendar days of the final accounting.
17 'Section 6. AMENDMENT. This AGREEMENT may be amended in writing only with the
18 unanimous written approval of the parties.
19 Section 7. LIABILITY. It is mutually understood and agreed that, merely by the
20' 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
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the intent of the PARTIES that the rights and liabilities of each Party shall remain
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the same,, while this AGREEMENT is in force, as it was before this AGREEMENT was made,
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except as otherwise specifically provided in this agreement.
24 .Section 8. TERMINATION. An PARTY wishing to terminate its
Y g participation in
25 this AGREEMENT shall so notify all other PARTIES in writing by March 1 of any year.
26 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 -128
1 accordance with this agreement by the PARTY prior to the effective date of
2 termination. The balance of the PARTIES may continue in the performance of the terms
3 and conditions of this AGREEMENT on the basis of a revised allocation of cost based on
the funding formula in Exhibit A, provided however, that the pro rata shares for TIC
4
and IRWD shall never exceed twelve and one -half percent (12.5 %).
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Section 9. 'AVAILABILITY OF FUNDS. The obligation of each PARTY is subject to
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the availability of funds appropriated for this purpose, and nothing herein shall be
7 construed as obligating the PARTIES to expend or as involving the PARTIES in any
8 contract or other obligation for the future payment of money in excess of
9 appropriations authorized by law.
10 Section 10. NO THIRD PARTY BENEFICIARIES. Nothing expressed or mentioned in this
11 AGREEMENT is intended or shall be construed to give any person, other than the PARTIES
12 hereto, and any permitted successors, any legal or equitable right, remedy or claim
13 under or in respect of this AGREEMENT or any provisions herein contained. This
14 AGREEMENT and any conditions and provisions hereof is intended to be and is for the
15 sole and exclusive benefit of the PARTIES hereto and for the benefit of no other
16 person, agency or entity.
17 Section 11• REFERENCE TO CALENDAR DAYS. Any reference to the word "day" or
18 "days" herein shall mean calendar day or calendar days, respectively, unless otherwise
19 expressly provided.
20 Section 12,. ATTORNEYS FEES. In any action or proceeding brought to enforce
21 or interpret any provision of this AGREEMENT, or where any provision hereof is
22 asserted as a defense, each PARTY shall bear its own attorneys' fees and costs.
23 Section 13. ENTIRE AGREEMENT. This AGREEMENT is intended by the PARTIES a-
24 a final expression of their agreement and intended to be a complete and exclusive
25 statement of the agreement and understanding of the PARTIES hereto in respect of the
26 subject matter contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein. This AGREEMENT
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Agreement No.D99 -12E
1 supersedes all prior agreements and understandings between the PARTIES with respect to
2 such matter.
3 Section 14. SEVERABILITY. If any part of this AGREEMENT is held,
4 determined or adjudicated to be illegal, void, or unenforceable by a court of
5 competent jurisdiction, the remainder of this AGREEMENT shall be given effect to the
6 fullest extent reasonably possible.
7 Section 15. SUCCESSORS AND ASSIGNS. The terms and provisions of this
8 AGREEMENT shall be binding upon and inure to the benefit of the PARTIES hereto and
9 their successors and assigns.
10 Section 16. NOTICES. All notices required or desired to be given under
11 this AGREEMENT shall be in writing and (a) delivered personally, or (b) sent by
12 certified mail, return receipt requested or (c) sent by telefacsimile communication
13 followed by a mailed copy, to the addresses specified below, provided each PARTY may
14 change the address for notices by giving the other PARTIES at least ten (10) days
15 written notice of the new address. Notices shall be deemed received when actually
16 received in the office of the addressee or when delivery is refused, as shown on the
17 receipt of the U.S. Postal service, or other person making the delivery, except that
18 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 -12£
Director of Public Works
City of Laguna Woods
24310 Moulton Pkwy, Ste K
P.O. Box 2220
Laguna Hills, CA 92653
Director of Public Works
City of Lake Forest
23161 Lake Center Dr., #100
Lake Forest. CA 92630
Director of Public Works
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92658
Director of Public Works
City of Orange
300 E. Chapman Ave
P.O. Box 449
Orange, CA 92866
Director of Public Works
City of Santa Ana
101 W. 4th St.
Santa Ana, CA 92701
Director of Public Works
City of Tustin
300 Centennial Way
Tustin, CA 92680
Director, PFRD
County of Orange
P.O. Box 4048
Santa Ana, CA 92702 -4048
Director, Water Quality
Irvine Ranch Water District
3512 Michelson Dr
Irvine, CA 92712
Vice President of Environmental Affairs
The Irvine Company
550 Newport Center
Newport Beach, CA 92658 -8904
Section 17. EXECUTION OF AGREEMENT. This AGREEMENT may be executed in
(counterpart and the signed counterparts shall constitute a single instrument.
Section 18. GOVERNING LAW AND VENUE. This AGREEMENT has been negotiated
and executed in the State of California and shall be governed by and construed under
the laws of the State of California. In the event of any legal action to enforce or
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III
Agreement No.D99 -12E
1 interpret this AGREEMENT, the sole and exclusive venue shall be a court of competent
2 jurisdiction located in Orange County, California, and the PARTIES hereto agree to and
3 do hereby submit to the jurisdiction of such court, notwithstanding Code of Civil
4 Procedure section 394. Furthermore, the PARTIES have specifically agreed, as part of
5 the consideration given and received for entering into this AGREEMENT, to waive any
6 and all rights to request that an action be transferred for trial to another county
7 under Code of Civil Procedure Section 394 or any other provision of law.
8 IN WITNESS WHEREOF, the PARTIES hereto have executed this AGREEMENT the day and
9 year first above written:
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COUNTY OF ORANGE
Date:
APPROVED AS TO FORM
COUNTY COUNSEL
By:
Deputy
Date:
SIGNED AND CERTIFIED THAT A COPY OF
THIS AGREEMENT HAS BEEN DELIVERED TO
THE CHAIRMAN OF THE BOARD
By:
DARLENE J. BLOOM
(Clerk of the Board of Supervisors of
Orange County, California
Date:
Agreement No.D99 -128
a political subdivision of the State of
California
BY:
Chairman of the Board of Supervisors
ORANGE COUNTY FLOOD CONTROL DISTRICT
a body corporate and politic
By:
Chairman of the Board of Supervisors
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Agreement No.D99-
ICITY OF NEWPORT BEACH
By:
Mayor
Date: 2003
APPROVED AS TO FORM:
ATTEST:
(City Clerk City Attorney of Newport Beach
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