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Agreement No. D99-128
AGREEMENT TO FUND NUTRIENT, FECAL COLIFORM AND TOXICS TOTAL MAXIMUM DAILY LOAD (TMDL)
STUDIES IN THE NEWPORT BAY WATERSHED
THIS AGREEMENT, for purposes of identification numbered D99-128, is made and
entered into this 18th day of September, 2003, by and between the County of Orange
("COUNTY"), the Orange County Flood Control District ("DISTRICT"), the City of Costa
Mesa ("COSTA MESA"), the City of Irvine ("IRVINE"), the City of Laguna Hills ("LAGUNA
HILLS"), the City of Laguna Woods ("LAGUNA WOODS"), the City of Lake Forest ("LAKE
FOREST"), the City of Newport Beach ("NEWPORT BEACH"), the City of Orange ("ORANGE"),
the City of Santa Aha ("SANTA ANA"), the City of Tustin ("TUSTIN"), the Irvine Ranch
Water District ("IRWD") and The Irvine Company ("TIC"). The thirteen entities are
hereinafter sometimes jointly referred to as the "PARTIES" and individually as
"PARTY". The cities are hereinafter sometimes jointly referred to as the "CITIES#.
WITNESSETH
WHEREAS, the California Regional Water Quality Control Board, Santa Ana Region
("REGIONAL BOARD") has adopted Resolution No. 98-9, as amended by Resolution No. 98-
100 amending the Water Quality Control Plan for the Santa Ana River Basin to
incorporate a Nutrient TMDL for the Newport Bay/San Diego Creek Watershed on April 17,
1998 and Resolution 99-10 amending the Water Quality Control Plan for the Santa Ana
River Basin to incorporate a TMDL for Fecal Coliform in Newport Bay on April 9, 1999
pursuant to the provisions of section 303(d) of the Clean Water Act; and,
WHEREAS, the United States Environmental Protection Agency (USEPA) has
established TMDLs for toxic pollutants, San Diego Creek and Newport Bay, California on
June 14, 2002, and the REGIONAL BOARD is developing implementation plans for each of
the toxic pollutants; and,
WHEREAS, the adopted TMDLs contain requirements for studies, monitoring and the
development of programs to attain TMDL reduction targets over a multi-year period;
and,
WHEREAS, the PARTIES intend this AGREEMENT to provide for the performance of
studies, monitoring and development of programs and funding therefore for a period
through to June 30, 2008 after which it is recognized that additional agreements may
Agreement No. D99-128
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be necessary for further monitoring, studies and load reduction implementation
projects over the period covered by the TMDLs; and,
WHEREAS, the PARTIES recognize that some expenditures required for compliance
with the TMDLs have been incurred prior to this agreement and that these costs are
incorporated in Exhibit C-1.
WHEREAS the PARTIES have reached agreement on a funding formula, which for the
COUNTY, DISTRICT and CITIES is based on the watershed land area and population applied
to the formula in the Amendment and Reinstatement of the National Pollutant Discharge
Elimination System Stormwater Implementation Agreement dated June 25, 2002, and which
for TIC and IRWD is based on a fixed twelve and one-half percent (12.5%) contribution.
NOW, THEREFORE, in consideration of the foregoing, the PARTIES agree as follows:
Section 1. PURPOSE. This AGREEMENT is entered into for the purpose of funding
and performing studies, research, monitoring and the development of programs related
to the adopted TMDLs for nutrients, fecal coliform and toxics in San Diego Creek and
Newport Bay watersheds.
Section 2. TERM. The term of this AGREEMENT shall commence upon approval and
execution of this document by all signatories to this AGREEMENT and shall continue
until June 30, 2008, unless sooner terminated as provided in Section 8.
Section 3. FUNDING. Exhibit A, which is attached and by this reference is made
a part hereof, presents the cost share allocations for the PARTIES.
IThe 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
CITIES will be revised once every year pursuant to the formula provided in Exhibit B,
which is attached hereto and made a part hereof, based on changes in watershed land
area and population. The percentage share shall be calculated by the COUNTY Public
Facilities and Resources Department, Environmental Resources Section from population,
land area and watershed area data. These calculations shall be completed by January 1
of each year and shall be included in the annual budget proposal. The respective
shares of IRWD and TIC shall remain at twelve and one half percent (12.5%) each for
the duration of this AGREEMENT.
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Agreement No. D99-12f
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Section 4. PROGRAM BUDGET AND COSTS. The COUNTY shall submit a scope of work and
a budget for the following fiscal year to each of the PARTIES by February 15 of each
year. The budget shall contain an explanation of any recommended program changes, an
estimate of all planned expenditures and an estimate of the payment required from each
PARTY for the following fiscal year.
The PARTIES shall be permitted to review and approve the program scope of work
and budget for the forthcoming year. Criteria for approval shall be affirmative
written responses from all of the PARTIES. The COUNTY and DISTRICT will constitute
one approving PARTY.
The first year tasks and expenditures for FY 02/03 are six hundred twenty-five
thousand and nine hundred nineteen dollars ($625,919) as shown in Exhibit C-l, which
is attached hereto and made a part hereof. The budget for the scope of work for FY
03/04 is six hundred ninety thousand and two hundred and twenty dollars ($690,220) as
shown in Exhibit C-2, which is attached hereto and made a part hereof. The COUNTY
shall be entitled to charge to the program all costs for direct labor, materials,
equipment and outside contract services for costs associated with carrying out the
approved scope of work. Recoverable costs will also include an overhead charge
calculated by the County Auditor-Controller which includes Public Facilities and
Resources Department overhead and County-wide cost allocation plan.
Section 5. PAYMENTS. Within 15 calendar days of the effective date of this
AGREEMENT, the COUNTY shall send the PARTIES an invoice for a deposit which
constitutes their share of the total first year costs identified in Exhibit C-3, which
is attached hereto and made a part hereof. Each of the PARTIES shall pay the deposit
within 45 calendar days of their respective receipt of the invoice.
The COUNTY shall prepare a fiscal year end accounting within 60 calendar days of
the end of the fiscal year. If the fiscal year end accounting results in costs (net
of interest earnings) exceeding the sum of the deposits, the COUNTY shall seek
approval of the excess cost from the PARTIES and shall invoice each PARTY for its
prorated share of the excess cost up to the amount of the revised approved budget.
Each PARTY shall pay the billing within 45 calendar'days of the date of the invoice.
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Agreement No. D99-12~
If the fiscal year end accounting results in the sum of the deposits exceeding costs
(net of interest earnings), the excess deposits will carry forward to reduce the
billings for the following year.
After the initial billing for the program, the COUNTY shall invoice each PARTY
for its annual deposit at the beginning (July 1) of each fiscal year. Each PARTY
shall pay the deposit within 45 calendar days of the date of the invoice. Each
PARTY'S deposit shall be based on it's prorated share of the approved annual budget,
reduced by its prorated share of any surplus identified in the prior fiscal year end
accounting.
Interest earned on the PARTIES' deposits will not be paid to the PARTIES, but
will be credited against the PARTIES' share of the program costs.
Upon termination of the program, a final accounting shall be performed by the
COUNTY. If costs remaining after the deduction of interest costs exceed the sum of
the deposits, the COUNTY shall invoice each PARTY for its prorated share of the
deficit. Each PARTY shall pay the invoice within 45 calendar days of the date of the
invoice. If the sum of the deposits, including interest, exceeds the costs, the
COUNTY shall reimburse to each PARTY its prorated share of the excess, within 45
calendar days of the final accounting.
Section 6. AMENDMENT. This AGREEMENT may be amended in writing only with the
unanimous written approval of the parties.
Section 7. LIABILITY. It is mutually understood and agreed that, merely by the
virtue of entering into this AGREEMENT, each PARTY neither relinquishes any rights nor
assumes any liabilities for its own actions or the actions of other PARTIES. It is
the intent of the PARTIES that the rights and liabilities of each Party shall remain
the same, while this AGREEMENT is in force, as it was before this AGREEMENT was made,
except as otherwise specifically provided in this agreement.
Section 8. TERMINATION. Any PARTY wishing to terminate its participation in
this AGREEMENT shall so notify all other PARTIES in writing by March 1 of any year.
Such termination shall be effective the following June 30. The terminating PARTY
shall be responsible for financial obligations hereunder to the extent incurred in
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Agreement No. D99-12E
accordance with this agreement by the PARTY prior to the effective date of
termination. The balance of the PARTIES may continue in the performance of the terms
and conditions of this AGREEMENT on the basis of a revised allocation of cost based on
the funding formula in Exhibit A, provided however, that the pro rata shares for TIC
and IRWD shall never exceed twelve and one-half percent (12.5%).
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
~approprlat~ons 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
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Agreement No. D99-12~
supersedes all prior agreements and understandings between the PARTIES with respect to
such matter.
Section 14. SEVERABILITY. If any part of this AGREEMENT is held,
determined or adjudicated to be illegal, void, or unenforceable by a court of
competent jurisdiction, the remainder of this AGREEMENT shall be given effect to the
fullest extent reasonably possible.
Section 15. SUCCESSORS AND ASSIGNS. The terms and provisions of this
AGREEMENT shall be binding upon and inure to the benefit of the PARTIES hereto and
their successors and assigns.
Section 16. NOTICES. All notices required or desired to be given under
this AGREEMENT shall be in writing and (a) delivered personally, or (b) sent by
certified mail, return receipt requested or (c) sent by telefacsimile communication
followed by a mailed copy, to the addresses specified below, provided each PARTY may
change the address for notices by giving the other PARTIES at least ten (10) days
written notice of the new address. Notices shall be deemed received when actually
received in the office of the addressee or when de%ivery is refused, as shown on the
receipt of the U.S. Postal service, or other person making the delivery, except that
notices sent by telefacsimile communication shall be deemed received on the first
business day following transmission.
Director of Public Services
City of Costa Mesa
P.O. Box 1200
Costa Mesa, CA 92628-1200
Director of Public Works
City of Irvine
P.O. Box 19578
Irvine, CA 92623-9578
Director of Public Works
City of Laguna Hills
25201 Paseo de Alicia, ~150
Laguna Hills, CA 92653
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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 92702-4046
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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Agreement No. D99-128
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
APPROVED AS TO FORM:
COUNTY ~~
By: ·
Deputy / ~
Date:
SIGNED AND CERTIFIED THAT A COPY OF
THIS AGREEMENT HAS BEEN DELIVERED TO
THE CHAIRMAN OF THE BOARD
DARLENE J-. BLOOM f ~ (
IlCXerk of the Board of Supervis~ of
Orange County, California
Date:
Agreement No. D99-12
a political subdivision of the State of
California t~ l
Chairman of the Board of Supervisors
ORANGE COUNTY FLOOD CONTROL DISTRICT
a body corporat~?~,4politic
By:
Chairman of the Board of Supervisors
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CITY OF COSTA MESA
Date:
ATTEST:
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, 2003
Agreement No. D99-12~
APPROVED AS TO FORM:
ity At{or~y ~ ~of'ta Mesa
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CITY OF IRVINE
ATTEST:
2003
Agreement No. D99-121
APPROVED AS TO FORM:
~ty Atto]
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CITY OF LAGUNA HILLS
Date: ~6~f_~ ~
ATTEST:
, 2003
~a~ ~. ~rlson, City Clerk
Agreement No. D99-12~
~ ~r~an Song .ad~r-.,
APPROVED AS TO FORM'
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CITY OF LAGUNA WOODS
Date://~/~'/
ATTEST:
Agreement No.D99-128
2003
D AS TO FORM:
~Woods
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CITY OF LAKE FOREST
Date: June 17
ATTEST:
ci~ c~ 1i~ ~
, 2003
Agreement No. D99-128
Mayor
APPROVED AS TO FORM:
City Attorney of Lake Forest
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CITY OF NEWPORT BEACH
Date: ~/ I~' ~) 2003
/
ATTEST:
City Clerk
APPROVED AS TO FOP~M:
COy Attorney of Newport Beach
No.D99-128
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CITY OF ORANGE
Date: , 2003
ATTEST:
City C~;r~ Q~ .....
AGR-4326
C.9
Agreement No. D99-128
APPROVED AS TO FORM:
n~'o~ne~ of ~ n~ge ~
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CITY OF SANTA ANA
Date:
ATTEST:
, 2003
By:
Agreement No.D99-12;
City Manager
APPROVED AS TO FORM:
City Clerk v ~ ~City ~t~orney
of Sa~a Aha
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CITY OF TUSTIN
Date:
ATTEST:
2003
APPROVED AS TO FORM:
Agreement No. D99-1
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THE IRVINE RANCH WATER DISTRICT
Date: June 3 , 2003
Agreement No. D99-128
ney for IRWD
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THE IRVINE COMPANY
Date:
, 2003
Agreement No. D99-128
By:
MONICA FLORIAN
ITS: Group Senior Vice President
Environmental Affairs
~atricia Frobes
ITS: General Counsel
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EXHIBIT A
COST SHARE ALLOCATIONS
FOR PROGRAM PARTICIPANTS
Costa Mesa
Irvine
Laguna Hills
Laguna Woods
Lake Forest
Urban 75% Newport Beach
Orange
Santa Aha
Tustin
County of Orange
O.C. Flood Control District
Open Space/Undefined Areas 12.5% The Irvine Company
Irvine Ranch Water
Open Space/Undefined Areas 12.5%
District
EXHIBIT B
Cost Share for Urban Component
Based on NPDES Funding Formula
.~.:,.:~:~.~, .,.',..: ~:.,.~. : TO [:.:? ~:~: .:S~ ~;:,~!~~ ~"~" ~;~ ," '? ~ '~?.'~'~ ~'~
Costa Mesa 15.56 7.58 48.71 110,700 53,920 6.19
I~ine 46.15 45.07 97.66 157,500 153,821 25.13
Laguna Hills 6.63 1.17 17.66 33,800 5,968 0.79
Laguna Woods 3.05 1.91 62.62 16,800 10,521 1.34
Lake Forest 16.80 11.56 68.83 76,600 52,724 7.37
Newpod Beach 27.74 16.61 59.88 72,500 43,411 8.33
Orange 23.33 ~.6 6.86 132,900 9,115 1.15
Santa Ana 27.35 16.34 59.75 343,700 205,348 19.57
Tustin 11.09 11.09 100.00 69,100 69,100 8.37
County of
Orange 86.85 28.19 32.46 122,534 39,774 11.77
O.C. Flood
Control Districts ............... 10.00
~ Source: NPDES Stormwater Permit Implementation Agreement D02-048. Includes Land Area Deductions from agreement
exhibit A- 1
2 Pementage of City Land Area in Watershed = Square miles within Watershed/Total Square Miles * 100
3 Taken from NPDES budget, which is dedved from California State Dept. of Finance data
4Estimated Population in Watershed = Total Population * Pementage of City Land Area in Watershed/100
5Weighted Average Share of Cost = ((Square Miles within Watershed/Total Square Miles of Watershed)*0.5)+((Estimated
Population in Watershed/Total Estimated Population in Watershed)*0.5) x 90
s Orange County Flood Control District assumes a fiat 10 percent of the total
EXHIBIT C-1
2002-2003 Budget for Newport Bay/San Diego Creek Watershed
Nutrient, Fecal Coliform and Toxics TMDL Programs
Nutrient =rior Nutrient Monitoring and Reporting, Coordination with RWQCB
~taff (TMDL Implementation Plan Section 2.c) $ 197,809
Nutrient ,lutrient Monitoring and Data Collection (TMDL Implementation Plan
~ection 2.c.1 Regional Nutrient Monitoring Program) $ 120,000
Fecal Coliforrr .~hellfish Harvesting Study 1st Year Cost (TMDL Implementation Plan
~ection 3.a.ii.a) $ 250,000
Fecal Coliform :ecal Coliform TMDL 2002-2003 Data Analysis (TMDL Implementation
=lan Section 3.a.ii.a) $ 2,200
Toxics .~etenium Source Study $ 9,900
All =rogram Compliance and Annual Reporting $ 46~010
EXHIBIT C-2
2003-2004 Budget for Newport Bay/San Diego Creek Watershed
Nutrient, Fecal Coliform and Toxics TMDL Programs
Nutrient Algae Survey of San Diego Creek System (TMDL Implementation
Plan Section 2.c.1 Regional Nutrient Monitoring Program) $ 50,000
Nutrient Aerial Mapping of Algae Distribution (TMDL Implementation Plan
Section 2.c.1 Regional Nutrient Monitoring Program) $ 5,000
Nutrient Nutrient Monitoring and Data Collection (TMDL Implementation
Plan Section 2.c.1 Regional Nutrient Monitoring Program) $ 120,000
Nutrient Nutrient BMP Evaluation Proposition 13 Grant matching funds
(TMDL Implementation Plan Section 2.c.2) $ 100,000
Toxics Selenium Source Study $ 43,400
Fecal Shellfish Harvesting Study 2nd Year Cost (TMDL Implementation
Coliform Plan Section 3.e.ii.a) $ 203,000
Fecal Urban and Natural Source Identification and Characterization
Coliform (TMDL Implementation Plan Section 3.a.ii.d) $ 75,000
Fecal Fecal Coliform TMDL 2003-2004 Data Analysis (TMDL
Coliform Implementation Plan Section 3.a.ii.a) $ 2,200
All Program Compliance and Annual Reporting ~ 92~020
EXHIBIT C-3
Expenditures for Newport Bay/San Diego Creek Watershed
Nutrient, Fecal Coliform and Toxicx TMDL Programs
2002-2003
Total Urban Component ~ $469,439
Costa Mesa
Irvine
Laguna Hills
Laguna Woods
Lake Forest
Newport Beach
Orange
Santa Ana
Tustin
County of Orange
O.C. Flood Control District
The Irvine Co. (Open Space)
IRWD (Undefined Sources)
$~ ~7,947
2003-2004
$517,965
$3,710 $4,093
.$6,312 $6,9~
$34,607 $38,184
$39,110 $43,153
$5,386 $5,943
$91,850 $101,345
$39,278 $43,338
$55,252
$46,944
$78,240
$78,240
$60,963
$51,797
$86,328
$86,328
TOTAL I I $625,919 I $690,620
Funding formula based on weighted percentage of population and land area (see Exhibit
B)