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07-1128_ORANGE, COUNTY OF_Agreement0 COUNTY OF ORANGE U [=1 RESOURCES & DEVELOPMENT MANAGEMENT DEPARTMENT January 10, 2008 Ms. Meg Monahan City Clerk City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Bryan Speegle, Director E?nvlronmental Resources 1750 S. Douglass Road Anaheim,CA 92806 Telephone: (714) 567-6363 Fax: (714) 567-6220 Subject: Executed Water Quality Ordinance Implementation Agreement - D07-087 Dear Ms. Monahan: Attached is Water Quality Ordinance Implementation Agreement Number D07-087 executed on November 28, 2007. This new agreement between the city and the Orange County Flood Control District will automatically renew annually hereafter on November 28, unless either party provides written notification of termination at least 6 months prior to that date. It is the County's pleasure to continue to provide Authorized Inspector services to the City of San Juan Capistrano. One executed agreement with original signatures is attached for your records. Please contact Duc Nguyen at (714) 973-6690 if you have any questions. Very truly yours, Jriromp on,nager Environmental Resources Attachment: Executed Water Quality Ordinance Implementation Agreement Number D07-087 cc: Marcia Moreno, RDMD, Executive Secretary (copy) Betsy Estrada, RDMD\Accounting (copy) Ziad Mazboudi, City of San Juan Capistrano (copy) y • • Agreement No. D07-087 1 WATER QUALITY ORDINANCE IMPLEMENTATION AGREEMENT WITH THE CITY OF San Juan Capistrano 2 3 THIS AGREEMENT, hereinafter referred to as "AGREEMENT" and for purposes of 4 identification numbered D07-087, is made and entered into this 'ZQ t� day of 5 Win )k. Lelic ,ZOO , by and between the City of San Juan Capistrano, a 6 municipal corporation, hereinafter designated as "CITY" and the Orange County Flood 7 Control District, a body corporate and politic, hereinafter referred to as 8 "DISTRICT". These entities are hereinafter sometimes jointly referred to as 9 "PARTIES" and individually as "PARTY". 10 W I T N E S S E T H 11 WHEREAS, pursuant to 33 United States Code Section 1251 et seq., as amended the 12 PARTIES are subject to a municipal National Pollutant Discharge Elimination System 13 (NPDES) Stormwater Permit and 40 CFR 122.26 (d)(2)(i)(A-F), which requires each to 14 control various potential pollutant sources into the municipal storm drain system 15 through enforcement of an adequate system of local legal authority; and 16 WHEREAS, on December 18, 1990 the County entered into the National Pollutant 17 Discharge Elimination System Stormwater Permit Implementation Agreement (hereinafter 18 referred to as "IMPLEMENTATION AGREEMENT") with CITY and other parties. This 19 IMPLEMENTATION AGREEMENT was subsequently amended on October 26, 1993; and 20 WHEREAS, the IMPLEMENTATION AGREEMENT specifies that the CITY is principally 21 responsible for implementing the National Pollutant Discharge Elimination System 22 Permit within its jurisdictional boundaries; and 23 WHEREAS, the IMPLEMENTATION AGREEMENT contains provisions allowing CITY to name 24 DISTRICT as "enforcer of a water pollution control ordinance"; and 25 WHEREAS, CITY has adopted a water quality ordinance (hereinafter referred to as 26 "CITY ORDINANCE") that provides in Section 9-114.107-that the CITY may "contract for 27 services of any public agency or private enterprise to carry out the planning 28 approvals, inspections, permits and enforcement authorized by this Ordinance"; and 29 WHEREAS, said CITY ORDINANCE defines "AUTHORIZED INSPECTOR" as persons 30 designated to investigate compliance and detect violations of the CITY ORDINANCE; and 1 • • Agreement No. D07-087 1 WHEREAS, said CITY ORDINANCE contains provisions to control pollutants from 2 both existing and new urban development and significant redevelopment; and 3 WHEREAS, Section 9-1-90 (c) of those Codified Ordinances of the DISTRICT 4 relating to Storm Water Management and Urban Runoff provides that "the DISTRICT may, 5 upon designation by any city within COUNTY , and at no cost to DISTRICT, be named as 6 an AUTHORIZED INSPECTOR for that city"; and 7 WHEREAS, similar agreements have been previously executed in the past five 8 years. Commencing in 2002, 29 cities have executed the WATER QUALITY ORDINANCE 9 IMPLEMENTATION AGREEMENT. Subsequently, after the initial three year term, these 10 agreements were extended for additional 3 years by AMENDMENT NO. ONE to the original 11 agreements. The terms of these agreements and their related amendment will be 12 expiring; and 13 WHEREAS, in furtherance of said program implementation, CITY now wishes to 14 contract with DISTRICT to serve as AUTHORIZED INSPECTOR pursuant to the CITY 15 ORDINANCE, and to pay DISTRICT for the full cost of providing those services; and 16 WHEREAS, DISTRICT is willing to provide such services to the extent allowed by 17 available staffing resources (See Section I(g)and 2(a))and to accept payment from 18 CITY for the full cost of providing those services. 19 20 NOW, THEREFORE, the PARTIES hereto, in consideration of the mutual covenants 21 and agreements contained in this AGREEMENT, agree as follows: 22 23 SECTION 1. DISTRICT RESPONSIBILITIES 24 Upon request from designated CITY representatives, DISTRICT, upon availability of 25 staffing resources, is authorized to: 26 (a) Act as AUTHORIZED INSPECTOR on behalf of CITY and shall investigate compliance 27 with, detect violations of, and/or take actions pursuant to the CITY ORDINANCE, 28 generally including activities such as water pollution incident response, clean - 29 up and/or enforcement activities associated with the following: 2 • • Agreement No. D07-087 (i) In response to specific pollutant releases originating from within CITY limits; (ii) In response to specific pollutant releases originating from within CITY limits that are detected in DISTRICT facilities; and (iii) In response to adverse findings of water quality monitoring that are attributable to specific pollutants originating within CITY limits. (b) Perform services in Section (a) of this AGREEMENT as set forth in the CITY ORDINANCE and its accompanying Enforcement Consistency Guide; (i) Notify designated CITY National Pollutant Discharge Elimination System Permit representative of request for water pollution incident response, clean-up and/or enforcement activities received from designated CITY representatives and Departments; (ii) Prepare annual list of investigations conducted on CITY's behalf for CITY to submit in the Annual Program Effectiveness Assessment Report to the Regional Water Quality Control Board(s); (c) Upon written request by the CITY; (i) Provide to CITY all incident reports and related documents prepared in connection with DISTRICT'S performance under this AGREEMENT and make such records available for inspection by authorized representatives of CITY during normal business hours; (ii) Utilize services of outside consultants and contractors to aid in the investigation, cleanup and/or enforcement activities undertaken pursuant to this AGREEMENT. If this is required, DISTRICT shall utilize consultants and contractors hired by the CITY under the CITY'S standing purchase order agreements; (d) Invoice CITY within forty-five (45) days of the signing of this AGREEMENT by the DISTRICT Director for the initial annual pollution response on-call fee identified in Exhibit A, prorated for the balance of the fiscal year ending June 30th from the date of AGREEMENT signing. For subsequent billing years, by June 30th of each year DISTRICT shall review and revise Exhibit A as necessary based on 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 C� • Agreement No. D07-087 the then current on-call labor rates, the number of cities contracting with DISTRICT for water quality ordinance services and the latest land area and population data as specified in the IMPLEMENTATION AGREEMENT. Thereafter, DISTRICT shall invoice CITY within 60 days of the beginning of each fiscal year (July 1) based on the revised Exhibit A. (e) Invoice CITY on a monthly basis for all work performed by DISTRICT under this AGREEMENT on behalf of CITY. DISTRICT will not invoice any "PERSON", as defined in CITY ORDINANCE, identified as causing or contributing to a violation of said ORDINANCE. Invoice from DISTRICT to CITY shall include actual costs incurred by DISTRICT for labor, equipment and services. Said actual costs include overhead (indirect costs such as tools, computers, etc.) and burden (employee benefits). (f) DISTRICT shall indemnify, defend with counsel approved by CITY, and hold CITY, its elected and appointed officials, officers, agents, employees and contractors free and harmless from any claim, cause of action, or liability whatsoever, based or asserted upon any act or omission of DISTRICT, its elected and appointed officials, officers, agents, employees and contractors, for property damage, bodily injury or death or any other element of damage of any kind or nature, relating to or in any way connected with or arising from the accomplishment of the services to be performed by DISTRICT under this AGREEMENT, except as provided for in Sections 2 (h) and 2 (i) below. (g) Nothing in this AGREEMENT shall be interpreted as an assumption by DISTRICT of any obligations the CITY may have under law or applicable permits to implement a municipal NPDES stormwater program. This AGREEMENT is solely for the purpose of authorizing DISTRICT personnel to act as AUTHORIZED INSPECTOR for the CITY. This AGREEMENT creates no obligation to provide those services. AUTHORIZED INSPECTOR services will be provided only to the extent permitted by DISTRICT resources. 4 5 • • Agreement No. D07-087 1 SECTION 2. CITY RESPONSIBILITIES: 2 CITY shall: 3 (a) Identify, in writing, the designated CITY National Pollutant Discharge 4 Elimination System (NPDES) Permit and Authorized Inspector representatives that 5 will be responsible for water pollution incident response, clean-up and/or 6 enforcement activities when DISTRICT involvement is not requested, approved or 7 available. The designations shall include representative names, titles, 8 departments and business/after hours phone numbers; 9 (b) Designate in writing those CITY representatives authorized to submit service 10 requests to DISTRICT on behalf of CITY. Any request from Orange County Fire 11 Authority/CITY Fire Department and Orange County Sheriffs Department/CITY Police 12 Department shall represent CITY approval. The designations shall include 13 representative names, titles, departments and business/after hours phone numbers; 14 (c) Meet periodically with DISTRICT to discuss the services being provided, review 15 individual cases, and ensure DISTRICT enforcement activities are consistent with 16 CITY ORDINANCE and accompanying Enforcement Consistency Guide; 17 (d) Provide in writing any requests for incident reports or related documents 18 prepared in connection with DISTRICT'S performance under this AGREEMENT (Section 19 1 (c) i)) ; 20 (e) Provide information in writing regarding any standing purchase order agreements 21 issued by CITY for employment by DISTRICT of outside consultants and contractors 22 (Section 1 (c) ii)). Information provided should include contractor/consultant 23 contact information, purchase order number and services provided; 24 (f) Make payment to DISTRICT within thirty (30) days of receipt of annual pollution 25 response on-call fee as identified in Exhibit A or monthly invoice from DISTRICT 26 for work performed in accordance with this AGREEMENT and invoice any "PERSON", as 27 identified in CITY ORDINANCE, identified as being responsible for violations of 28 the water quality ordinance; 29 (g) Assume any and all liability for failure to approve needed work and expenditures 30 to respond to pollutant releases; 5 6 • • Agreement No. D07-087 1 (h) CITY shall indemnify, defend with counsel approved by DISTRICT, and hold 2 DISTRICT, its elected and appointed officials, officers, agents, employees and 3 contractors, free and harmless from any claim, cause of action or liability 4 whatsoever, based or asserted upon any act or omission of CITY, its elected and 5 appointed officials, officers, agents, employees and contractors for property 6 damage, bodily injury or death or any other element of damage of any kind or 7 nature, specifically relating to or in any way connected with or arising from the 8 extent and/or adequacy of investigation, or clean-up of pollutants on behalf of 9 CITY, performed by, on behalf of, or under the supervision of DISTRICT personnel, 10 acting in good faith and with due diligence in fulfillment of DISTRICT's 11 responsibilities pursuant to this AGREEMENT; and 12 (i) Where CITY staff is providing pollution response duties hereinunder, CITY shall 13 indemnify, defend with counsel approved by DISTRICT, and hold DISTRICT, its 14 elected and appointed officials, officers, agents, employees and contractors free 15 and harmless from any claim, cause of action, or liability whatsoever, based or 16 asserted upon any act of CITY, its elected and appointed officials, officers, 17 agents, employees and contractors, for property damage, bodily injury or death or 18 any other element of damage of any kind or nature, relating to or in any way 19 connected with or arising from the accomplishment of services performed by CITY 20 in implementing or enforcing CITY ORDINANCE to which DISTRICT was not a party of. 21 22 SECTION 3. GENERAL PROVISIONS 23 (a) The initial term for this AGREEMENT is for a period of one (1) year commencing 24 with the date of the execution of this AGREEMENT (Initial Term). The term of this 25 AGREEMENT will automatically extend for an additional year at the end of 26 the Initial Term of this AGREEMENT and each year thereafter unless either party 27 provides a written notice to other party no less than 6 months before the 28 expiration of the term of the AGREEMENT of its intent not to renew. Nothing in 29 this clause is to be interpreted, however, to limit the rights of the party to 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 • Agreement No. D07-087 terminate the AGREEMENT pursuant to the provisions of the Termination Clause(Section 3 (b)); (b) Either party may terminate this AGREEMENT in advance of the termination date, upon six (6) months written notice to the other party sent to the following addresses: DISTRICT: Orange County Flood Control District Attn: Director, Resources and Development Management Department Post Office Box 4048 Santa Ana, California 92702-4048 CITY: City of San Juan Capistrano Attn: City Manager 32400 Paseo Adelanto San Juan Capistrano, California 92675 Upon termination by either PARTY, DISTRICT shall inform the CITY of any ongoing investigations prior to the termination date and return the prorated share of any remaining annual pollution response on-call fees within forty-five (45) days after the termination date for the fiscal year in which the termination occurs. Upon termination it will be the responsibility of the CITY to complete any water pollution incident response, clean-up and/or enforcement activities associated with any ongoing investigations. (c) PARTIES agree to fully cooperate with and assist one another in all matters pertaining to losses arising from costs not reimbursed by any "PERSON", as identified in CITY ORDINANCE, in performance of this AGREEMENT. If a claim is made, or suit is brought against a PARTY to this AGREEMENT likely to be related to the performance thereof, said PARTY shall immediately forward every claim, 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 0 • Agreement No. D07-087 demand, notice, summons or other process received by it to the other PARTY hereto. (d) 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. (e) No alteration or variation of the terms of this AGREEMENT shall be valid unless made in writing and signed by the PARTIES hereto, and no oral understanding or agreement not incorporated shall be binding on any of the PARTIES hereto. (f) The PARTIES to this AGREEMENT represent and warrant that this AGREEMENT has been duly authorized and executed and constitutes the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms. IN WITNESS WHEREOF, the parties hereto have executed this AGREEMENT on the dates opposite their respective signatures: Date:4 -;Z 012�'Z APPROVED AS TO FORM COUNTY COUNSEL ORANGE COUNTY FLOOD CONTROL DISTRICT, a body corporate and politic, By+ror, —9 C��/ Resources & Development Management Department Date: V By: eputy U 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 18 19 20 21 22 0 0 Agreement No. D07-087 CITY OF San Juan Capistrano Date: l 0'� 1� — i%� By: Nom_ City Manager APPROVED AS TO FORM: Pi Attorney of San Juan Capistrano • Exhibit A • Water Quality Ordinance Implementation Agreement Pollution Response Annual Fixed Cost Fee FY 2007-2008**** Permittee Population* Area (sq, mi.) ** Weighted Average Share of Revenue I%) Annual Fee*** FY 2007.2008 Aliso Viejo 44,924 6.92 1.113503219 $547 Anaheim 342,410 49.89 8.299142308 $4,076 Brea 39,560 11.98 1.368194047 - $672 Buena Park 81,349 10.55 1.885897552 $926 Costa Mesa 113,134 15.83 2.699014928 $1,326 Cypress 48,854 6.60 1.149972662 $565 Dana Point 36,669 6.43 0.960363539 $472 Fountain Valley 57,405 9.05 1.436523973 $706 Fullerton 136,428 22.32 3.467492139 $1,703 Garden Grove 171,765 17.92 3.695132965 $1,815 Huntington Beach 201,000 26.64 4.697457385 $2,307 Irvine 193,785 65.98 7.182586244 $3,528 La Habra 61,789 7.36 1.389418324 $682 La Palma 16,081 1.80 0.353999756 $174 Laguna Beach 24,963 8.83 0.947017648 $465 Laguna Hills 33,225 6.64 0.923765991 $454 Laguna Niguel 66,178 14.79 1.942991759 $954 Laguna Woods 18,334 3.04 0.468649664 $230 Lake Forest 78,859 16.78 2.259721101 $1,110 Los Alamitos 12,004 2.01 0.308133779 $151 Mission Viejo 97,997 17.93 2.615675324 $1,285 Newport Beach 83,361 24.64 2.84326713 $1,396 Orange 137,801 25.78 3.71545714 $1,825 Placentia 51,236 6.62 1.186167191 $583 Rancho Santa Margarita 49,130 12.94 1.571540326 $772 San Clemente 66,280 17.68 2.134808822 $1,049 San Juan Capistrano 36,073 13.26 1.401432712 $688 Santa Ana 351,322 27.35 6.945240284 $3,411 Seal Beach 25,298 4.02 0.635155827 $312 Stanton 38,761 3.09 0.771036018 $379 Tustin 71,767 11.14 1.784452225 $876 Villa Park 6,218 2.08 0.228024677 $112 Westminster 92,408 10.05 2.014896247 $990 Yorba Linda 66,794 19.82 2.283266487 $1,121 County of Orange 120,174 175.55 13.32060061 $6,543 OCFCD0 0.00 10 $4,912 TOTALS 3,073,336 683.310 100.00000 $49,115 * Source: State of California, Department of Finance, E-1 City/County Population Estimates with Annual Percent Change January 1, 2005 and 2006, Sacramento, California May 2006. Available at: http�/www dof ca gov/HTML/DEMOGRAPlRpports PacerslEstimateslEl/documentslE-l table.xls ** Source: RDMD - Geomatics. Area was calculated in miles using the dry land area figures and subtracting areas in each jurisdiction for national forests, state parks, airports, landfills and military installations as determined in the NPDES Implementation Agreement. *** Annual Fee: is the District's on-call annual cost which is based the prior year's actual annual on-call staff pay divided by Permittee share based on NPDES Implementation Agreement cost share irrespective of the number of participating cities. **** The District shall review and revise Exhibit A as necessary on June 30th of each year the based on the current on-call labor rates, the number of cities contracting with the DISTRICT for water quality ordinance services and the latest land area and population data (see Agreement Section 1(d)).