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HomeMy WebLinkAboutORANGE COUNTY FLOOD CONTROL DISTRICT - 2008 COPy N-2008-035 Agreement No. D07-099 WATER QUALITY ORDINANCE IMPLEMENTATION AGREEMENT WITH THE CITY OF SANTA ANA 2 3 4 5 6 7 8 9 10 11 12 13 THIS AGREEMENT, hereinafter referred to as "AGREEMENT" and for purposes of /'Y day identification numbered D07-099, is made and entered into this AfF'i / ,~, by and between the City of Santa Ana, a municipal of corporation, hereinafter designated as "CITY" and the Orange County Flood Control District, a body corporate and politic, hereinafter referred to as "DISTRICT". These entities are hereinafter sometimes jointly referred to as "PARTIES" and individually as "PARTY". WIT N E SSE T H WHEREAS, pursuant to 33 United States Code Section 1251 et seq., as amended, the PARTIES are subject to a municipal National Pollutant Discharge Elimination System (NPDES) Stormwater Permit and 40 CFR 122.26 (d) (2) (i) (A-F), which requires 14 each to control various potential pollutant sources into the municipal storm drain 15 system 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 18 (hereinafter referred to as "IMPLEMENTATION AGREEMENT") with CITY and other 19 parties. This IMPLEMENTATION AGREEMENT was subsequently amended on October 26, 20 1993; and 21 WHEREAS, the IMPLEMENTATION AGREEMENT specifies that the CITY is principally 22 responsible for implementing th~ National Pollutant Discharge Elimination System 23 Permit within its jurisdictional boundaries; and 24 WHEREAS, the IMPLEMENTATION AGREEMENT contains provisions allowing CITY to 25 name DISTRICT as "enforcer of a water pollution control ordinance"; and 26 WHEREAS, CITY has adopted a water quality ordinance (hereinafter referred to 27 as "CITY ORDINANCE"); and 28 1 Agreement No. D07-099 WHEREAS, said CITY ORDINANCE defines "AUTHORIZED INSPECTOR" as persons 2 designated to investigate compliance and detect violations of the CITY ORDINANCE; 3 and 4 WHEREAS, said CITY ORDINANCE contains provisions to control pollutants from 5 both existing and new urban development and significant redevelopment; and 6 WHEREAS, Section 9-1-90 (c) of those Codified Ordinances of the DISTRICT 7 relating to Storm Water Management and Urban Runoff provides that "the DISTRICT 8 may, upon designation by any city within COUNTY r and at no cost to DISTRICT, be 9 named as an AUTHORIZED INSPECTOR for that city"; and 10 WHEREAS, similar agreements have been previously executed in the past five 11 years. Commencing in 2002, 29 cities have executed the WATER QUALITY ORDINANCE 12 IMPLEMENTATION AGREEMENT. Subsequently, after the initial three year term, these 13 agreements were extended for additional 3 years by AMENDMENT NO. ONE to the 14 original agreements. The terms of these agreements and their related amendment 15 will be expiring; and 16 WHEREAS, in furtherance of said program implementation, CITY now wishes to 17 contract with DISTRICT to serve as AUTHORIZED INSPECTOR pursuant to the CITY 18 ORDINANCE, and to pay DISTRICT for the full cost of providing those services; and 19 WHEREAS, DISTRICT is willing to provide such services to the extent allowed 20 by available staffing resources (See Section l(g)and 2(a))and to accept payment 21 from CITY for the full cost of providing those services. 22 23 NOW, THEREFORE, the PARTIES hereto, in consideration of the mutual covenants 24 and agreements contained in this AGREEMENT, agree as follows: 25 26 SECTION 1. DISTRICT RESPONSIBILITIES 27 Upon request from designated CITY representatives, DISTRICT, upon availability of 28 staffing resources, is authorized to: 29 (a) Act as AUTHORIZED INSPECTOR on behalf of CITY and shall investigate compliance 30 with, detect violations of, and/or take actions pursuant to the CITY ORDINANCE, 2 Agreement No. D07-099 1 generally including activities such as water pollution incident response, 2 clean-up and/or enforcement activities associated with the following: 3 (;i.) In response to specific pollutant releases originating from within CITY 4 limits; 5 (ii) In response to specific pollutant releases originating from within CITY 6 limits that are detected in DISTRICT facilities; and 7 (iii) In response to adverse findings of water quality monitoring that are 8 attributable to specific pollutants originating within CITY limits. 9 (b) Perform services in Section (a) of this AGREEMENT as set forth in the CITY 10 ORDINANCE and its accompanying Enforcement Consistency Guide: 11 (i) Notify designated CITY National Pollutant Discharge Elimination System 12 Permit representative of request for water pollution incident response, 13 clean-up and/or enforcement activities received from designated CITY 14 representativ~s and Departments; and 15 (ii) Prepare annual list of investigations conducted on CITY's behalf for CITY 16 to submit in the Annual Program Effectiveness Assessment Report to the 17 Regional Water Quality Control Board(s) . 18 (c) Upon written request by the CITY: 19 (i) Provide to CITY all incident reports and related documents prepared in 20 connection with DISTRICT'S performance under this AGREEMENT and make such 21 records available for inspection by authorized representatives of CITY 22 during normal business hours; and 23 (ii) Utilize services of outside consultants and contractors to aid in the 24 investigation, cleanup and/or enforcement activities undertaken pursuant 25 to this AGREEMENT. If this is required, DISTRICT shall utilize 26 consultants and contractors hired by the CITY under the CITY'S standing 27 purchase order agreements. 28 (d) Invoice CITY within forty-five (45) days of the signing of this AGREEMENT by 29 the DISTRICT Director for the initial annual pollution response on-call fee 30 identified in Exhibit A, prorated for the balance of the fiscal year ending 3 Agreement No. D07-099 June 30th from the date of AGREEMENT signing. For subsequent billing years, by 2 June 30th of each year, DISTRICT shall review and revise Exhibit A as necessary 3 based on the then current on-call labor rates, the number of cities contracting 4 with DISTRICT for water quality ordinance services and the latest land area and 5 population data as specified in the IMPLEMENTATION AGREEMENT. Thereafter, 6 DISTRICT shall invoice CITY within 60 days of the beginning of each fiscal year 7 (July I) based on the revised Exhibit A. 8 (e) Invoice CITY on a monthly basis for all work performed by DISTRICT under this 9 AGREEMENT on behalf of CITY. DISTRICT will not invoice any "PERSON", as 10 defined in CITY ORDINANCE, identified as causing or contributing to a violation 11 of said ORDINANCE. Invoice from DISTRICT to CITY shall include actual costs 12 incurred by DISTRICT for labor, equipment and services. Said actual costs 13 include overhead (indirect costs such as tools, computers, etc.) and burden 14 (employee benefits) . 15 (f) DISTRICT shall indemnify, defend with counsel approved by CITY, and hold CITY, 16 its elected and appointed officials, officers, agents, employees and 17 contractors free and harmless from any claim, cause of action, or liability 18 whatsoever, based or asserted upon any act or omission of DISTRICT, its elected 19 and appointed officials, officers, agents, employees and contractors, for 20 property damage,' bodily injury or death or' any other element of damage of any 21 kind or nature, relating to or in any way connected with or arising from the 22 accomplishment of the services to be performed by DISTRICT under this 23 AGREEMENT, except as provided for in Sections 2 (h) and 2 (i) below. 24 (g) Nothing in this AGREEMENT shall be interpreted as an assumption by DISTRICT of 25 any obligations the CITY may have under law or applicable 'permits to implement 26 a municipal NPDES stormwater program. This AGREEMENT is solely for the purpose 27 of authorizing DISTRICT personnel to act as AUTHORIZED INSPECTOR for the CITY. 28 This AGREEMENT creates no obligation to provide those services. AUTHORIZED 29 INSPECTOR services will be provided only to the extent permitted by DISTRICT 30 resources. 4 Agreement No. D07-0991 1 2 SECTION 2. CITY RESPONSIBILITIES: 3 CITY shall: 4 (a) Identify, in writing, the designated CITY National Pollutant Discharge 5 Elimination System (NPDES) Permit and Authorized Inspector representatives that 6 will be responsible for water pollution incident response, clean-up and/or 7 enforcement activities when DISTRICT involvement is not requested, approved or 8 available. The designations shall include representative names, titles, 9 departments and business/after hours phone numbers; 10 (b) Designate in writing those CITY representatives authorized to submit service 11 requests to DISTRICT on behalf of CITY. Any request from Orange County Fire 12 Authority/CITY Fire Department and Orange County Sheriffs Department/CITY 13 Police Department shall represent CITY approval. The designations shall include 14 representative names, titles, departments and business/after hours phone 15 numbers; 16 (c) Meet periodically with DISTRICT to discuss the services being provided, review 17 individual cases, and ensure DISTRICT enforcement activities are consistent 18 with CITY ORDINANCE and accompanying Enforcement Consistency Guide; 19 (d) Provide in writing any requests for incident reports or related documents 20 prepared in connection with DISTRICT'S performance under this AGREEMENT 21 (Section 1 (c) i)); 22 (e) Provide information in writing regarding any standing purchase order agreements 23 issued by CITY for employment by DISTRICT of outside consultants and 24 contractors (Section 1 (c) ii)). Information provided should include 25 contractor/consultant contact information, purchase order number and services 26 provided; 27 (f) Make payment to DISTRICT within thirty (30) days of receipt of annual pollution 28 response on-call fee as identified in Exhibit A or monthly invoice from 29 DISTRICT for work performed in accordance with this AGREEMENT and invoice any 5 Agreement No. D07-099 I "PERSON", as identified in CITY ORDINANCE, identified as being responsible for 2 violations of the water quality ordinance; 3 (g) Assume any and all liability for failure to approve needed work and 4 expenditures to respond to pollutant releases; 5 (h) CITY shall indemnify, defend with counsel approved by DISTRICT, and hold 6 DISTRICT, its elected and appointed officials, officers, agents, employees and 7 contractors, free and harmless from any claim, cause of action or liability 8 whatsoever, based or asserted upon any act or omission of CITY, its elected and 9 appointed officials, officers, agents, employees and contractors for property 10 damage, bodily injury or death or any other element of damage of any kind or 11 nature, specifically relating to or in any way connected with or arising from 12 the extent and/or adequacy of investigation, or clean-up of pollutants on 13 behalf of CITY, performed by, on behalf of, or under the supervision of 14 DISTRICT personnel, acting in good faith and with due diligence in fulfillment 15 of DISTRICT's responsibilities pursuant to this AGREEMENT; and 16 (i) Where CITY staff is providing pollution response duties hereinunder, CITY shall 17 indemnify, defend with counsel approved by DISTRICT, and hold DISTRICT, its 18 elected and appointed officials, officers, agents, employees and contractors 19 free and harmless from any claim, cause of action, or liability whatsoever, 20 based or asserted upon any act of CITY, its elected and appointed officials, 21 officers, agents, employees and contractors, for property damage, bodily injury 22 or death or any other element of damage of any kind or nature, relating to or 23 in any way connected with or arising from the accomplishment of services 24 performed by CITY in implementing or enforcing CITY ORDINANCE to which DISTRICT 25 was not a party of. 26 27 SECTION 3. GENERAL PROVISIONS 28 (a) The initial term for this AGREEMENT is for a period of one (1) year commencing 29 with the date of the execution of this AGREEMENT (Initial Term). The term of 30 this AGREEMENT will automatically extend for an additional year at the end of 6 Agreement No. D07-099 I 1 the Initial Term of this AGREEMENT and each year thereafter unless either 2 party provides a written notice to other party no less than 6 months before 3 the expiration of the term of the AGREEMENT of its intent not to renew. 4 Nothing in this clause is to be interpreted, however, to limit the rights of 5 the party to terminate the AGREEMENT pursuant to the provisions of the 6 Termination Clause(Section 3 (b}); 7 (b) Either party may terminate this AGREEMENT in advance of the termination date, 8 upon six (6) months written notice to the other party sent to the following 9 addresses: 10 11 DISTRICT: 12 Orange County Flood Control District 13 Attn: Director, Resources and Development Management Department 14 Post Office Box 4048 15 Santa Ana, California 92702-4048 16 17 CITY: 18 City of Santa Ana 19 Attn: City Manager 20 20 Civic Center Plaza, M-36, P.O. Box 1988 21 Santa Ana, California 92701 22 23 Upon termination by either PARTY, DISTRICT shall inform the CITY of any ongoing 24 investigations prior to the termination date and return the prorated share of 25 any remaining annual pollution response on-call fees within forty-five (45) 26 days after the termination date for the fiscal year in which the termination 27 occurs. Upon termination, it will be the responsibility of the CITY to 28 complete any water pollution incident response, clean-up and/or enforcement 29 activities associated with any ongoing investigations. 7 Agreement No. D07-099 1 (c) PARTIES agree to fully cooperate with and assist one another in all matters 2 pertaining to losses arising from costs not reimbursed by any "PERSON", as 3 identified in CITY ORDINANCE, in performance of this AGREEMENT. If a claim is 4 made, or suit is brought against a PARTY to this AGREEMENT likely to be related 5 to the performance thereof, said PARTY shall immediately forward every claim, 6 demand, notice, summons or other process received by it to the other PARTY 7 hereto. 8 (d) If any part of this AGREEMENT is held, determined or adjudicated to be illegal, 9 void or unenforceable by a court of competent jurisdiction, the remainder of 10 this AGREEMENT shall be given effect to the fullest extent reasonably possible. 11 (e) No alteration or variation of the terms of this AGREEMENT shall be valid unless 12 made in writing and signed by the PARTIES hereto, and no oral understanding or 13 agreement not incorporated shall be binding on any of the PARTIES hereto. 14 (f) The PARTIES to this AGREEMENT represent and warrant that this AGREEMENT has 15 been duly authorized and executed and constitutes the legally binding 16 obligation of their respective organization or entity, enforceable in 17 accordance with its terms. 8 Agreement No. D07-099 IN WITNESS WHEREOF, the parties hereto have executed this AGREEMENT on 2 the dates opposite their respective signatures: 3 ORANGE COUNTY FLOOD CONTROL DISTRICT, 4 a body corporate and poCc, OAJ.. 5 6 7 Date: By: 8 Director, 9 Resources & Development Management 10 Department 11 12 APPROVED AS TO FORM 13 COUNTY COUNSEL 14 16 Date: ~~11 ~ / By: 15 17 18 19 20 9 1 2 3 4 5 6 Date: 7 8 9 10 11 12 13 14 16 City Clerk Agreement No. D07-099 CITY OF SANTA ANA APPROVED AS TO FORM: ~JJAO~ City Attorney of S nta Ana 10 Exhibit A Water Quality Ordinance Implementation Agreement Pollution Response Annual Fixed Cost Fee FY 2007-2008**** Irvine La Habra La Palma Laguna Beach Laguna Hills Laguna Niguel Laguna Woods Lake Forest Los Alamitos 193,785 61,789 16,081 24,963 33,225 66,178 18,334 78,859 12,004 65.98 7.36 1.80 8.83 6.64 14.79 3.04 16.78 2.01 17.93 1.149972662 0.960363539 1.436523973 3.467492139 3.695132965 7.182586244 1.389418324 0.353999756 0.947017648 0.923765991 1.942991759 0.468649664 2.259721101 0.308133779 2.615675324 $547 $457 $683 $1,649 $3,415 $661 $168 $450 $439 $924 $223 $1,074 $147 Orange Placentia Rancho Santa Margarita San Clemente San Juan Capistrano Santa Ana Seal Beach Stanton Tustin Villa Park Westminster Vorba Linda County of Orange OCFCD TOTALS 137,801 51,236 49,130 66,280 36,073 351,322 25,298 38,761 71 ,767 6,218 92,408 66,794 120,174 o 3,073,336 25.78 6.62 12.94 17.68 13.26 27.35 4.02 3.09 11.14 2.08 10.05 19.82 175.55 0.00 683.310 3.71545714 1.186167191 1.571540326 2.134808822 1.401432712 6.945240284 0.635155827 0.771036018 1.784452225 0.228024677 2.014896247 2.283266487 13.32060061 10 100.00000 $1,767 $564 $747 $1,015 $666 $3,302 $302 $367 $848 $108 $958 $1,086 $6,333 $4,755 $47,546 * 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.qov/HTMUDEMOGRAP/ReportsPapers/Estimates/E 1/documents/E-1 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)).