HomeMy WebLinkAbout2011-036
RESOLUTION NO. 2011-36
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF TH
CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF TH
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM STORMWATE
PERMIT IMPLEMENTATION AGREEMENT, SANTA ANA REGION.
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BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL 0
THE CITY OF SAN BERNARDINO AS FOLLOWS:
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SECTION I. The City Manager is hereby authorized and directed to execute, on behal
of the City, the National Pollutant Discharge Elimination System Stormwater Permi
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Implementation Agreement, Santa Ana Region.
SECTION 2. This agreement and any amendment or modification thereto shall not tak
effect or become operative until fully signed and executed by all parties. The City shall not b
obligated hereunder unless and until the agreement is fully executed and no oral agreemen
relating thereto shall be implied or authorized.
SECTION 3. This resolution is rescinded if the parties to the agreement fail to execute i
within one hundred and twenty (120) days ofthe passage of this resolution.
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2011-36
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF TH
CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF TH
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM STORMWATE
PERMIT IMPLEMENTATION AGREEMENT, SANTA ANA REGION.
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I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and
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Common Council of the City of San Bernardino at a ioint regular
meeting thereof, held
on the 22nd day of
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Council Members:
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9 MARQUEZ
VACANT
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BRINKER
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SHORETT
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KELLEY
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JOHNSON
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MC CAMMACK
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February
,2011, by the following vote, to wit:
AYES
NAYS
ABSTAIN ABSENT
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Q~~.~
RaChel Clark, City Clerk
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The foregoing resolution is hereby approved this 411/71 day of February, 2011.
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2]
k J. Morris, or
of San Bernardino
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23 Approved as to form:
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25 JAMES F. PENMAN,
City Attorney
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28 By:
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2011-36
REPORT/RECOMMENDATION TO THE BOARD OF SUPERVISORS
SITTING AS THE GOVERNING BOARD OF THE FOllOWING:
SAN BERNARDINO COUNTY AND
SAN BERNARDINO COUNTY FLOOD CONTROL DISTRICT
AND RECORD OF ACTION
June 28, 2011
FROM: GRANVILLE, M. BOWMAN, Director
Department of Public Works - Transportation
And Flood Control Engineer - San Bernardino County Flood Control District
SUBJECT: NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES)
STORMWATER PERMIT IMPLEMENTATION AGREEMENT, SANTA ANA
REGION
RECOMMENDA TION/S)
1. Acting \Is the governing board of the San Bernardino County Flood Control District:
a. Approve the National Pollutant Discharge Elimination System (NPDES) Stormwater
Permit Implementation Agreement No.11-545 with the County of San Bemardino, and the
cities of Big Bear Lake, Chino, Chino Hills, Colton, Fontana, Grand Terrace, Highland,
Loma Linda, Montclair, Ontario, Rancho Cucamonga, Redlands, Rialto, San Bernardino,
Upland, and Yucaipa (Co-Permittees).
b. Designate the Flood Control Engineer (or the Flood Control Engineer's designee) as the
authorized representative of the San Bernardino County Flood Control District to
participate on the Implementation Agreement's Management Committee and represent
the San Bernardino County Flood Control District and vote on Stormwater Management
Program budgets and all other program elements required to implement the areawide
Municipal Stormwater Management Plan for the duration of the Implementation
Agreement.
2. Acting as'the Board of Supervisors of San Bernardino County:
a. Approve the NPDES Stormwater Permit Implementation Agreement with the San
Bernardino County Flood Control District and the Co-Permittees.
b. Designate the Director of Public Works (or the Director's designee) as the authorized
representative of San Bernardino County to participate on the Implementation
Agreement's Management Committee and represent and vote on Stormwater
Management Program budgets and all other program elements required to implement the
areawide Municipal Stormwater Management Plan for the duration of the Implementation
Agreement.
(Affected Districts: All.)
(Presenter: Annesley Ignatius, Deputy Director, 387-7906)
cc: Flood-Kim wi agree
Contractor cfo Flood wi agree
Auditor-Accts Pay Mgr wi agree
EBIX-BPO cfo Risk Mgmt
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jll 08102/11
Rev4-19-11
ITEM 94
Page 1 of 4
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES)
STORMWATER PERMIT IMPLEMENTATION AGREEMENT, SANTA ANA
REGION
JUNE 28, 2011
PAGE 2 OF 4
BOARD OF SUPERVISORS COUNTY GOALS AND OBJECTIVES
Improve County Government Operations.
Operate in a Fiscally-Responsible and Business-Like Manner.
Ensure Development of a Well-Planned, Balanced, and Sustainable County.
Provide for the Health and Social Services Needs of County Residents.
Pursue County Goals and Objectives by Working with Other Governmental Agencies.
FINANCIAL IMPACT
Approval of this item will result in no additional Net County Cost. The cost-share formula
delineated within the Implementation Agreement is based on three main factors (a) equal
distribution base (b) population and (c) land area. Each program element is placed into the
categories specified in the table below, and costs are then allocated according to the percentages
shown.
Proaram Tasks Base Papulation Land area
Monitoring 10% 30% 60%
Public Education 10% 80% 10%
Program Management 30% 50% 20%
Training 30% 60% 10%
The County of San Bernardino's (County) percentage of the area-wide program costs for Fiscal
Year (FY) 2011-12 will be reduced from 13%, as defined under the current agreement, to 11%,
based on the revised cost-share formula. The San Bernardino County Flood Control District's
(District) cost-share percentage remains unchanged at 5%. Funding is available from the District
budget and the County to provide for these cost-share(s). The remaining 84% will be funded by
the sixteen Co-Permittee cities.
The amount to be funded for the program budget for FY 2011-12 is $2,048,500. These costs will
be jointly funded by the Permittees under this Implementation Agreement. The County's,
District's, and the Cities' share of the cost will be $227,400, $102,600, and $1,718,500,
respectively. These costs will be paid from a special revenue fund, RLF, established by the
District to separately account for activity related to the NPDES program. Sufficient appropriation
and revenues have been included in the FY 2011-12 Recommended Flood Control budget to
cover these expenses.
BACKGROUND INFORMATION
On January 29, 2010, the District as Principal Permittee, the County (unincorporated areas), and
the incorporated cities in the County within the Santa Ana River watershed, obtained its fourth
area-wide National Pollutant Discharge Elimination System (NPDES) Permit (Permit), Order No.
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06/28/11 #94
2011-36
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES)
STORMWATER PERMIT IMPLEMENTATION AGREEMENT, SANTA ANA
REGION
JUNE 28, 2011
PAGE 3 OF 4
R8-2010-0036, NPDES No. CAS 618036. Under the requirements of the Permit, the Co-
Permittees and the Principal Permittee are required to enter into an implementation agreement.
There is an existing implementation agreement, which was approved by the Board of Supervisors
on May 4, 1992 (Item No.' 44), after receipt of the initial NPDES Permit (Order No. 90-136). It
was modified on December 12, 1995 (Item No. 43) during the first term of that initial Permit.
Since approval of the existing agreement there have been a number of regulatory and
programmatic changes, including the issuance of three additional NPDES Permits (Orders 96-32,
R8-2002-0012, and the new Permit, R8-2010-0036).
The San Bernardino County Stormwater Program Management Committee (Management
Committee), comprised of designated representatives from each Permittee agency, has
developed this revised Implementation Agreement to reflect the current regulatory and
programmatic structure. The final draft of the revised Implementation Agreement was endorsed
by the Stormwater Program Management Committee on July 13, 2010, after extensive input from
the Permittees' respective legal counsels. All Permittee agencies have executed the
Implementation Agreement in advance of the County and the District.
The Implementation Agreement specifies the District's role in coordinating and implementing
area-wide program activities. As the Principal Permittee, the District serves as the lead
administrator of the area-wide program activities on behalf of the Co-Permittees. The County and
the sixteen incorporated cities within the Santa Ana watershed are designated as Co-Permittees
within the Agreement. As a Co-Permittee, the County is expected to submit necessary
compliance deliverables to the District in a complete and timely manner and participate in area-
wide program activities.
Approval of this item will approve, on behalf of the District and the County, respectively, the
NPDES Stormwater Permit Implementation Agreement. The term of the Implementation
Agreement coincides with the term of the current NPDES Permit (Order No. R8-2010-0036) and
shall terminate six months after the Santa Ana Regional Water Quality Control Board approval of
the NPDES Permit that follows Order No. R8-2010-0036. The current NPDES Permit (Order No.
R8-2010-0036) expires on January 29, 2015.
Approval of this item will also designate the authorized representative of the District and the
County to participate on the Implementation Agreement's Management Committee and represent
and vote on Stormwater Management Program budgets and all other program elements required
to implement the areawide Municipal Stormwater Management Plan for the duration of the
Implementation Agreement.
REVIEW BY OTHERS
This item has been reviewed by County Counsel (Scott M. Runyan, Deputy County Counsel, 387-
9022) on May 25, 2011, County Counsel (Charles S. Scolastico, Principal Assistant County
Counsel, 387-5281) on May 25, 2011 and the County Administrative Office (Beatriz Valdez,
Principal Administrative Analyst, 387-1852) on June 8, 2011.
06/28/11 #94
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES)
STORMWATER PERMIT IMPLEMENTATION AGREEMENT, SANTA ANA
REGION
JUNE 28, 2011
PAGE40F4
06/28/11 #94
2011-36
FOR OFFICIAL USE ONL Y
y New Vendor Code Dept. 1/_ rrls-er
- Change SC A
Cancel
Depl. Orgn. Contractor's License No.
lood Control District 097 097
Contract Representative Telephone Total Contract Amount
Gia Kim, Chief, Land DeveloDmentlEMD (909) 387 - 8145 $
[i] Revenue I 0 Encumbered Contract Type
o Unencumbered 0 Other:
If not encumbered or revenue contract type, provide reason:
Commodity Code Contract Start Date Contract End Date Original Amount Amendment Amount
$
Fund Depl. Organization Appr. Obj/Rev Source GRCIPROJ/JOB No. Amount
RLF 099 099 , 8842 30F01343
Fund Depl. Organization Appr. Obj/Rev Source GRCIPROJIJOB No. Amount
RLF 099 099 , 9970 30F01343
Fund Depl. Organization Appr. Obj/Rev Source GRCIPROJ/JOB No. Amount
RLF 099 099 99975 30F01343
Project Name Estimated Payment Total by Fiscal Year
NPDES Stonmwater Permit FY Amount 110 FY Amount 110
Imolementation Aareement. $ $
- -
Santa Ana Recion ~ - ~ -
Order No. R8-2010-0036 ~ ~
SAN BERNARDINO COUNTY
FLOOD CONTROL DISTRICT
and
COUNTY
OF
SAN BERNARDINO
FAS
,
CONTRACT TRANSMITTAL
CONTRACTOR Co-Permittees: Cities of Big Bear Lake, Chino, Chino Hills, Colton, Fontana, Grand Terrace, Highland, Loma
Linda, Montclair, Ontario, Rancho Cucamonga, Redlands, Rialto, San Bernardino, Upland, and Yucaipa
FederallD No. or Social Security No.
Contractor's Representative
Address
Phone
Nature of Contract: (Briefly describe the general terms of the contract)
As a requirement of the area-wide National Pollutant Discharge Elimination System (NPDES) Permit, Order No.
R8-2010-0036, NPDES No. CAS 618036, dated January 29, 2010 and issued by the California Regional Water
Quality Control Board, Santa Ana Region, an Implementation Agreement has to be signed between all the Co-
Permittees listed in the Permit as well as the Implementation Agreement. This Agreement outlines the
responsibilities of each Co-Permittee and funding for the area-wide programs. Funding by each Co-Permittee
each fiscal year will vary based on the projected costs for the fiscal year. The Implementation Agreement is made
a part of this contract.
Date
Reviewed as ~ Contract COJPlia~c:
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(Attach this transmittal to all contracts not prepared on the "Standard Contract" fo~
Approved as to Legal Form (sign in blue ink)
.. See attached signature pages.
Counsel
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Input Date Keyed By
Revised 1/13/09
2011-36
I NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
2 STORMWATER PERMIT IMPLEMENTATION AGREEMENT
3 SANTA ANA REGION
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6 This AGREEMENT entered into as of this 28th day of June, 2011, by the County of San
7 Bernardino, (herein called the COUNTY), the San Bernardino County Flood Control District
8 (herein called the DISTRICT), and the Cities of Big Bear Lake, Chino, Chino Hills, Colton,
9 Fontana, Grand Terrace, Highland, Lorna Linda, Montclair, Ontario, Rancho Cucamonga,
10 Redlands, Rialto, San Bernardino, Upland, and Yucaipa (herein called the CITIES) establishes
II the responsibilities of each party with respect to compliance with National Pollutant Discharge
12 Elimination System (NPDES) Stormwater regulations administered by the California Regional
13 Water Quality Control Board, Santa Ana Region (SARWQCB) by the authority granted by the
14 federal Clean Water Act (CW A) and its 1987 amendments and the Water Quality Act (WQA).
IS
16 RECITALS
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18 Whereas
19 Congress in 1987 amended Section 402 of the Federal Clean Water Act (33 U.5.c.A. 1342
20 (p)) to require the federal Environmental Protection Agency (EPA) to promulgate regulations
21 for applications for permits for stormwater discharges; and
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23 Whereas
24 These permit regulations require the control of pollutants from stormwater discharges
25 by requiring a National Pollutant Discharge Elimination System (NPDES) Permit for the
26 discharge of stormwaters into waters of the United States; and
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28 Whereas
29 These EPA regulations require NPDES permits for discharges from municipal separate
30 storm sewer systems (MS4 Permit) on a system-wide or jurisdiction-wide basis; and
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32 Whereas
33 The State Legislature, in enacting the San Bernardino County Flood Control Act, created
34 the San Bernardino County Flood Control District to provide for the control of flood and storm
35 waters; and
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37 Whereas
38 The Powers granted to the DISTRICT by the San Bernardino County Flood Control Act
39 include carrying on technical and other investigations, examinations, or tests of all kinds,
40 making measurements, collecting data, and making analyses, studies, and inspections
41 pertaining to water supply, control of floods, use of water, water quality, nuisance, pollution,
42 waste, and contamination of water both within and without the DISTRICT; and
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44 Whereas
45 The CITIES, the COUNTY and the DISTRICT desire to develop and implement an
46 integrated stormwater discharge management program with the objective of improving water
47 quality in the Santa Ana Watershed portion of San Bernardino County; and
AGR - 2010 MS4lmplemenlation - Final (2).doc
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2011-36
Whereas
The California State Water Resources Control Board (SWRCB) as designee of the EPA
has delegated authority to the Regional Water Quality Control Board - Santa Ana Region
(SARWQCB) for administration of the MS4 Permit program and issuance of MS4 Permits within
the boundaries of their Region; and
Whereas
The DISTRICT, COUNTY, and CITIES have been designated as joint permittees
(Permittees) by the SARWQCB for the MS4 Permit issued to the County of San Bernardino; and
Whereas
The DISTRICT has been designated as the Principal Permitee in the MS4 Permit; and
Whereas
The ~OUNTY and the CITIES have been designated as the Co-permittees in the MS4
Permit; and
Whereas
Cooperation between the CITIES, the COUNTY, and the DISTRICT to jointly file an
application for the MS4 Permit is in the best interest of the CITIES, the COUNTY, and the
DISTRICT; and
Whereas
The Permittees shall establish and maintain a Management Committee to coordinate
compliance with MS4 Permit requirements and implement a Stormwater Management Program
across all jurisdictions covered by this MS4 Permit; and
NOW THEREFORE, the parties hereto do mutually agree as follows:
1. Filing Status. The COUNTY, DISTRICT, and CITIES will jointly file the application for
an area-wide storm water permit. The COUNTY, the DISTRICT, and each individual
CITY will be a Permittee.
II. Management Committee. The DISTRICT, as Principal Permittee, and COUNTY and
CITIES, as Co-permittees, shall support and facilitate compliance with area-wide MS4
Permit requirements and implementation of the Stormwater Management Program
through the workings of the Management Committee. The responsibilities and structure
of this committee shall include:
A. The purpose of the Management Committee shall be to develop policies,
(including goals, needs, and priorities) budgets, and implementation
strategies and plans for the area-wide Stormwater Management Program
to ensure compliance with the MS4 Permit. The Management Committee
2010 MS4 Implementation - Final
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2010 MS4 Implementation - Final
2011-36
shall evaluate implementation options and strategies and recommend
implementation actions to the DISTRICT.
Each Permittee shall designate in writing at least one authorized
representative and one alternate to participate on the Management
Committee. Management Committee designees and alternates shall be
authorized by their respective city council or governing board to cast
votes on behalf of their jurisdiction to determine Stormwater
Management Program budgets and all other program elements required
to implement the areawide Municipal Stormwater Management Plan
(MSWMP).
The Principal Permittee shall serve as the chairperson for the
Management Committee.
D.
The Management Committee shall meet at least once each month, except
during the month of December.
E.
Ten (10) authorized representatives present in person at a scheduled
meeting constitute a quorum for the transaction of business of the
Management Committee. If a quorum is not present at a scheduled
Management Committee meeting, less than a quorum may adjourn the
meeting. For all Management Committee actions other than approval of
the budget as set forth in Section VIl.C.!. of this AGREEMENT, a
majority vote of the quorum shall decide any question brought before the
Management Committee for decision.
F.
The Management Committee shall support Stormwater Management
Program implementation by providing guidance to the Principal Permittee
with respect to storm water program administration and approving
elements of the area-wide MSWMP.
G.
The Management Committee may establish subcommittees to support
the work of the Management Committee. Subcommittees shall include
interested members of the Management Committee, and/ or other
Permittee staff with necessary expertise. Subcommittees may develop
recommendations for Management Committee consideration. Such
recommendations require majority approval by members of the
subcommittee on a one vote per Permittee basis.
H.
Approval of Management Committee decisions will require a majority
vote of the authorized representatives or alternates in attendance, on a one
vote per Permittee basis. In the event that the Management Committee
does not approve a subcommittee recommendation, the item will be
directed back to the subcommittee for reconsideration.
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2011-36
1. All parties to this AGREEMENT achieve cost savings by working
collectively to implement the areawide stormwater program. To
maximize these cost savings, the Permittees agree that:
1. Each authorized representative shall actively participate in at least
9 of 11 monthly Management Committee meetings;
2. Each Permittee shall actively participate in at least one
subcommittee, either through the authorized representative or
other authorized designee. Participation will be defined as
attendance at fifty percent (50%) or more of subcommittee
meetings held in a given fiscal year.
III. Principal Permittee Responsibilities.
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The DISTRICT, acting through its Board of Directors, is the Stormwater Program Administrator
for purposes of this AGREEMENT. The District shall have administrative responsibilities and
shall be reimbursed for its time expended on behalf of the Stormwater Program. These rates
include actual hourly rate plus overhead. Materials are to be reimbursed at direct cost.
The DISTRICT, while acting as administrator, will strive to implement the policies, budget, and
required program elements according to the recommendations of the Management Committee.
In turn, the Management Committee will work in good faith with the DISTRICT to make
reasonable policy, budget and required program element recommendations to the
DISTRICT. The Parties recognize and acknowledge, however, that the DISTRICT, as governed
by the San Bernardino County Board of Directors, retains final authority regarding the nature
and manner in which the recommendations of the Management Committee shall be executed.
In the event that the DISTRICT proposes to implement an approach different than the one
reconirnended by the Management Committee, the DISTRICT's proposed alternative action
shall be communicated to the Management Committee at the next available meeting of the
Management Committee. If the Management Committee approves the alternative action, then
the cost sharing provisions of this AGREEMENT shall govern the allocation of any costs
associated with that alternative action. If, in good faith, the Management Committee does not
approve the alternative action, the DISTRICT may implement the alternative action, but the
DISTRICT shall be solely responsible for paying the increased costs, if any, resulting from the
alternative action. This increased cost shall be measured by the difference between the cost of
the alternative action and the estimated cost of the action as reasonably recommended by the
Management Committee.
If the DISTRICT'S proposed alternative implementation action involves an increase in program
costs, that alternative implementation action shall not be adopted until such time as each
authorized representative of the Management Committee has had 45 days to relay that
alternative implementation action to its various governing bodies for approval. CITIES and
COUNTY shall have no responsibility for the incremental increase in cost associated with an
201Q MS4 Implementation-Final
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2011-36
alternative action that is not approved by the Management Committee after 45 days has passed
with the governing bodies failing to approve the alternative implementation action.
The DISTRICT will act as the contracting party, on behalf of the Co-permittees for Stormwater
Management Program contracts and agreements with all consultants, contractors, vendors or
other entities as recommended by the Management Committee.
The DISTRICT, if recommended by the Management Committee, may act on behalf of the Co-
permittees as applicant in preparing and submitting grant proposals, and may act as
administrator for any awarded grant funds.
The DISTRICT, if recommended by the Management Committee, will act on behalf of the
Stormwater Program as the contracting party and signatory in joint agreements with other
municipal sto;'mwater programs and stakeholders for regional benefits and cooperation.
As the Principal Permittee under the MS4 Permit, the DISTRICT shall coordinate all area-wide
MS4 Permit activities and manage the Stormwater Management Program by:
A. Conducting chemical, biological and bacteriological water quality
monitoring on behalf of the areawide program as required by the MS4
Permit.
B. Implementing management programs, monitoring programs, and related
plans as required by the MS4 Permit.
C. Preparing and submitting to the Executive Officer (SARWQCB) unified
reports, plans, and programs necessary to comply with the MS4 Permit.
D. Coordinating and conducting Management Committee meetings as
specified in the MSWMP.
E. Taking the lead role in initiating and developing area-wide programs and
activities necessary to comply with the MS4 Permit.
F. Participating, as needed, in any subcommittees formed to facilitate MS4
Permit requirements.
G. Providing technical and administrative support and inform the Co-
permittees of the progress of other pertinent municipal programs, pilot
projects, research studies, and other information to facilitate
implementation of Co-permittees' stormwater program.
2010 MS4 !mplementation-Final
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2011-36
H. Coordinating the implementation of area-wide Stormwater Management
Program activities such as a monitoring program, public education, and
pollution prevention.
I. Gathering and disseminating information on the progress of statewide
municipal stormwater programs and evaluate the information for
potential use in the execution of the MS4 Permit.
J. Monitoring the implementation of the plans and programs required by
the MS4 Permit and determine their effectiveness in attaining water
quality standards.
K. Coordinating with SARWQCB activities pertaining to implementation of
the MS4 Permit, including the submittal of all required reports, plans, and
programs.
L. Soliciting and coordinating public input for any major proposed
stormwater management programs and implementation plans.
M. Developing and implementing mechanisms, performance standards, etc.,
to promote consistent implementation of Best Management Practices
among the Permittees.
N. Cooperating in watershed management programs and regional and/or
statewide monitoring programs.
IV.
Co-permittee Responsibilities. The Co-permittees shall support the Principal Permittee
by:
A. Preparing and submitting to the Principal Permittee in a timely manner
all required information necessary to comply with permit reporting
requirements. Timely completion of Permittee annual report
information is considered meeting the deadline if received on or before
September 15th of each reporting year.
B. Notifying the Principal Permittee immediately, in writing, of any
changes to the designated representative to the Management
Committee.
C. Reviewing and commenting on all plans, strategies, management
programs, and monitoring programs, as developed by the Principal
Permittee or a subcommittee of the Management Committee.
D. Conducting and/ or coordinating with the Principal Permittee on any
surveys or characterizations needed to identify pollutant sources from
specific drainage areas.
2Q1QMS4lmplementation-Final
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V.
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2011-36
Compliance Responsibilities. The DISTRICT, COUNTY and CITIES are individually
responsible for implementing all MS4 Permit requirements within their respective
jurisdictions. The Management Committee does not assume any responsibility for
implementing the Stormwater Management Programs for the Principal Permittee or any
other Permittee or for ensuring that the Principal Permittee or the Co-permittees
implement programs consistent with the recommendations of the Management
Committee.
Indemnification and Insurance. Each party shall indemnify, defend, and hold harmless
the other parties to this AGREEMENT from and against any and all liability and expense
arising from any act or omission of the indemnifying party, its authorized officers,
employees, agents, and volunteers in connection with the performance of this
AGREEMENT, including, but not limited to reasonable defense costs, reasonable legal
fees, claims, actions, damages, liability, and causes of action for damages of any nature
whatsoever; provided, however, that no party shall indemnify another party for that
party's own negligence or willful misconduct.
In the event a party, or parties, to this AGREEMENT is/ are found to be comparatively at
fault for any claim, action, loss or damage which results from their respective obligations
under this AGREEMENT, the party, or parties shall indemnify the other party /parties to
the extent of its/their comparative fault. Furthermore, if a party attempts to seek
recovery from the other for Workers' Compensation benefits paid to an employee, the
parties agree that any alleged negligence of the employee shall not be construed against
the employer of that employee.
The parties to this AGREEMENT are authorized self-insured public entities for purposes
of Professional Liability, Automobile Liability, General Liability, and Workers'
Compensation and warrant that through their programs of self-insurance, they have
adequate coverage or resources to protect against liabilities arising out of their
performance under this Agreement.
Program Costs. The responsibilities for payment of all shared costs of equipment,
services, contracted analytical services, and the cost of implementing the MS4 Permit,
shall be distributed among the DISTRICT, COUNTY, and CITIES as follows:
A. The DISTRICT shall contribute 5% of the annual Program Costs; the other
Permittees shall be responsible for the remaining 95% of the Program
Costs.
B. The annual budget shall separate program costs into four Program Areas:
1. Monitoring, which shall include any water quality and
hydrographic monitoring and laboratory analyses.
2. Public Education, which shall include all public outreach programs.
2010 MS4lmplementation - Final
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2010 MS4 Implementation - Final
2011-36
3. Program Management & Regulaton) Activities, which includes
administrative, reporting and regulatory activities.
4. Training, which addresses any training conducted to implement
the stormwater management program.
The Principal Permittee shall prepare and implement an annual operating
budget with the participation of the Permittees. The budget year shall
coincide with the fiscal year of the DISTRICT, July 1 - June 30.
c.
1. The Principal Permittee will forward the annual operating budget
for the forthcoming year to the Co-permittees for review and
approval. The review period shall be from the first business day of
November to the first business day of December of each year.
During the review period, the Co-permittees may provide written
comments on the budget to the Principal Permittee. The Fiscal
Subcommittee will review the comments on the budget and
endorse a draft budget for Management Committee approval. The
Management Committee will consider the draft budget for
approval at the January meeting. An affirmative response from a
majority of the total number of authorized representatives or
authorized alternates is required for approval.
D.
For Fiscal Year 2010/11, the Permittees cost share shall be as follows:
PERMITTEE
Big Bear Lake
Chino
Chino Hills
Colton
Fontana
Grand Terrace
Highland
Lorna Linda
Montclair
Ontario
Rancho Cucamonga
Redlands
Rialto
San Bernardino
Upland
PERCENTAGE SHARE
1.98
4.59
5.08
3.48
7.45
0.80
2.21
1.36
2.19
11.99
9.81
4.84
5.58
12.13
5.05
8
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2010 MS41mplementation - Final
2011-36
PERMITTEE
Yucaipa
County
District
TOTAL'
PERCENTAGE SHARE
3.42
13.04
5.00
100
E.
For Fiscal Year 2011/12, and all subsequent fiscal years the Permittees
cost share shall be determined annually according to the methodology
provided in Appendix A.
F.
For Fiscal Year 2011/12, and all subsequent fiscal years, the Permittees
annual cost share shall be calculated by November 1 of each year and
shall be included in the annual budget proposal.
G.
The DISTRICT shall invoice each CITY and the COUNTY for its annual
deposit after July 1, the start of the fiscal year. Each CITY and the
COUNTY shall pay the deposit within 30 days of the date of the invoice.
Each CITY's and the COUNTY's deposit shall be based on their prorated
share of the approved annual budget, reduced for any surplus identified
in the prior fiscal year-end accounting.
H.
The DISTRICT shall make reasonable efforts to inform the Management
Committee during the fiscal year of potential exceedances of the approved
budget that may require the Parties to increase the deposits. If at any time
during a fiscal year the program costs exceed the sum of the deposits, the
DISTRICT shall submit invoices to the CITIES and the COUNTY to
recover the deficit. The share for each CITY and the COUNTY shall be
prorated according to the formula above (see Paragraphs D and E of this
Section). Each CITY and COUNTY shall pay the invoice within 30 days of
the billing date.
I.
The DISTRICT shall prepare a fiscal year end accounting at the end of
each fiscal year and distribute copies to the Permittees for their review by
October 31 of that year. Permittees shall have 30 calendar days from the
date of their receipt of the fiscal year end accounting to dispute in writing
or concur with the findings. If the fiscal year end accounting results in
costs exceeding the sum of the deposits (including interest earnings), the
DISTRICT shall invoice each CITY and the COUNTY for its prorated
share of the excess cost. Each CITY and the COUNTY shall pay the billing
within 30 days of the date of the invoice. If the fiscal year end accounting
results in the sum of the deposits (including interest earnings) exceeding
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VIII.
X.
2011-36
costs, the excess deposits will carry forward to reduce the billings for the
following year.
J. Upon termination of the program, a final accounting shall be performed
by the DISTRICT. If costs exceed the sum of the deposits (including
interest earnings), the DISTRICT shall invoice each CITY and the
COUN'FY for its prorated share of the excess. Each CITY and the
COUNTY shall pay the invoice within 30 days of the date of the invoice.
If the sum of the deposits (including interest earnings) exceeds the costs,
the DISTRICT shall reimburse to each CITY and the COUNTY its
prorated share of the excess (including any interest earnings remaining),
within 30 days of the final accounting.
K. Each CITY and the COUNTY shall bear the financial responsibility for
implementing the program within its jurisdictional boundaries, including
any applicable MS4 permit fees, as outlined in Section V .
1. The annual administrative costs (includes actual hourly rate plus
overhead) incurred by the DISTRICT shall be included in the budget for
the Areawide Program Costs and paid according to this Section, Section
III and Appendix A.
M. The financial responsibility for this AGREEMENT will be effective on the
date this AGREEMENT takes effect.
IX.
Term of the AGREEMENT. The term of the AGREEMENT coincides with the term of
the current MS4 Permit (Order No. R8-2010-0036). The renewal process of the
Implementation Agreement shall begin at the same time as the initiation of the Report of
Waste Discharge renewal and shall be completed within 6 months from the SARWQCB
approval date of the MS4 Permit that follows Order No. R8-2010-0036. This
AGREEMENT shall therefore take effect on the date it is approved by all parties and
shall terminate 6 months after SARWQCB approval of the MS4 Permit that follows
Order No. R8-2010-0036.
Additional Parties. Any city or other entity which wishes to be a Permittee on the San
Bernardino County MS4 Permit that was issued by SARWQCB shall agree to the
provisions in this funding agreement and shall sign this AGREEMENT prior to being
included in the permit. The date of initiation, for determining participant costs for any
new Permittee shall be the date of inclusion in the San Bernardino County MS4 Permit
issued by SARWQCB. The cost for adding any additional Permittee to the program,
including additional permit and processing fees, shall be paid by the added Permittee.
Monies, if any, to be reimbursed to the existing Permittees shall be credited to their
respective annual program operating fees for the following budget year.
Withdrawal from the AGREEMENT. A Permittee may withdraw from this
AGREEMENT at the end of any fiscal year with written notice being received by the
DISTRICT 90 days prior to the end of the fiscal year. A withdrawing Permittee will not
be allowed refunds for tasks, projects or studies already underway in which funds have
2010 MS4 Implemenlalion-Final
10
2011-36
425 been obligated for the fiscal year. Upon completion of tasks, projects or studies
426 undertaken or on-going, if any funds are not expended, a refund of the share of the
427 balance shall be paid within sixty (60) days thereafter to the withdrawing Permittee.
428
429 The withdrawing Permittee shall be responsible for all assessed penalties as a
430 consequence of withdrawal. The cost allocations to the remaining members will be
431 calculated in the following budget year.
432
433 Xl. Breach. Failure to comply with the terms of this AGREEMENT is a breach of the
434 agreement. If a breach is not cured within ninety (90) days after receiving a notice to
435 cure the breach by a permittee, permittee in breach may be terminated from this
436 AGREEMENT by a majority vote of the Management Committee.
437
438 XII. Non-compliance with MS4 Permit Requirements. Any Permittee found in non-
439 compliance with the conditions of the MS4 Permit within their jurisdictional
440 respohsibilities shall be solely liable for any assessed penalties, pursuant to Section
441 13385 of the Water Code. Penalties that apply to all the Permittees shall be assessed
442 according to the formula in Appendix A.
443
444 XIII. Legal Action/Costs/ Attorney Fees. Where any legal action is necessary to declare any
445 party's rights hereunder or enforce any provision hereof for any damages by reason of
446 an alleged breach of any provisions of this AGREEMENT, each party shall bear its own
447 attorney's fees and costs incurred in conjunction with such legal action regardless of
448 who is found to be the prevailing party. This section shall not apply to those costs and
449 attorney's fees arising from any third party legal action against a party hereto and
450 payable under Section VI, Indemnification and Insurance.
451
452 XIV. Amendments to the AGREEMENT. This AGREEMENT may be amended by consent to
453 a two-thirds majority of the Permittees (rounded to the nearest whole number).
454 Amendments to this AGREEMENT may be adopted and executed concurrently, and
455 shall become effective upon its execution by a majority of the Permittees as defined
456 above.
457
458 XV. Authorized Signatories: Each Permittee will determine by either resolution or ordinance
459 who will be the authorized signatory. This person shall be authorized to execute the
460 application(s) for MS4 Permit(s) and take all other procedural steps necessary to file the
461 application(s) for MS4 Permits.
462
463 XVI. Notices. All notices shall be deemed duly given if delivered by hand; or five (5) working
464 days after deposit in the U.5. Mail, certified mail, return receipt requested.
465
466 XVII. Governing Law. This AGREEMENT will be governed and construed in accordance with
467 laws of the State of California. If any provision or provisions of this AGREEMENT shall
468 be held to be invalid, illegal or unenforceable, the validity, legality, and enforceability of
469 the remaining provisions shall not in any way be affected or impaired hereby. Any legal
470 action which arises out of or is in any way related to this AGREEMENT shall be brought
471 in the Superior Court of the County of San Bernardino.
2010MS4lmplemenlalion-Final
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XVIlL
XIX.
2011-36
Consent to Breach not Waiver. No term or provision hereof shall be deemed waived
and no breach excused, unless such waiver or consent shall be in writing and signed by
any Permittee to have waived or consented. Any consent by any Permittee to, or waiver
of, a breach by the other whether expressed or implied, shall not constitute a consent to,
waiver of, or excuse for any other different or subsequent breach.
American Recovery and Reinvestment Act of 2009 I" ARRA"). DISTRICT, while acting
as the Stormwater Program Administrator, shall include in any contract funded in
whole, or in part, by ARRA provisions that substantially conform to the following:
A. Use of ARRA Funds and Requirements. This Contract may be funded in
whole or in part with funds provided by the American Recovery and
Reinvestment Act of 2009 (" ARRA"), signed into law on February 17,
2009. Section 1605 of ARRA prohibits the use of recovery funds for a
project for the construction, alteration, maintenance or repair of a public
building or public work (both as defined in 2 CFR 176.140) unless all of
the iron, steel and manufactured goods (as defined in 2 CFR 176.140)
used in the project are produced in the United States. A waiver is
available under three limited circumstances: (i) Iron, steel or relevant
manufactured goods are not produced in the United States in sufficient
and reasonable quantities and of a satisfactory quality; (ii) Inclusion of
iron, steel or manufactured goods produced in the United States will
increase the cost of the overall project by more than 25 percent; or (iii)
Applying the domestic preference would be inconsistent with the public
interest. This is referred to as the "Buy American" requirement. Request
for a waiver must be made to the DISTRICT for an appropriate
determination.
Section 1606 of ARRA requires that laborers and mechanics employed by
contractors and subcontractors on projects funded directly by or assisted
in whole or in part by and through the Federal Government pursuant to
ARRA shall be paid wages at rates not less than those prevailing on
projects of a character similar in the locality as determined by the
Secretary of Labor in accordance with the Davis-Bacon Act (40 U.s.e. 31).
This is referred to as the "wage rate" requirement.
The above described provisions constitute notice under ARRA of the Buy
American and wage rate requirements. Contractor must contact the
DISTRICT contact if it has any questions regarding the applicability or
implementation of the ARRA Buy American and wage rate requirements.
Contractor will also be required to provide detailed information
regarding compliance with the Buy American requirements, expenditure
of funds and wages paid to employees so that the DISTRICT may fulfill
any reporting requirements it has under ARRA. The information may be
required as frequently as monthly or quarterly. Contractor agrees to fully
cooperate in providing information or documents as requested by the
DISTRICT pursuant to this provision. Failure to do so will be deemed a
2010MS4lmplementation-Final
12
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xx.
XXI.
XXII.
2011-36
default and may result in the withholding of payments and termination
of this Contract.
Contractor may also be required to register in the Central Contractor
Registration (CCR) database at http://www.ccr.gov and may be required
to have its subcontractors also register in the same database. Contractor
must contact the DISTRICT with any questions regarding registration
requirements.
B. Schedule of Expenditure of Federal Awards. In addition to the
requirements described in "Use of ARRA Funds and Requirements,"
proper accounting and reporting of ARRA expenditures in single audits
is required. Contractor agrees to separately identify the expenditures for
each grant award funded under ARRA on the Schedule of Expenditures
of Federal Awards (SEFA) and the Data Collection Form (SF-SAC)
required by the Office of Management and Budget Circular A-133,
"Audits of States, Local Governments, and Nonprofit Organizations."
This identification on the SEF A and SF-SAC shall include the Federal
award number, the Catalog of Federal Domestic Assistance (CFDA)
number, and amount such that separate accountability and disclosure is
provided for ARRA funds by Federal award number consistent with the
recipient reports required by ARRA Section 1512 (c).
In addition, Contractor agrees to separately identify to each subcontractor
and document at the time of sub-contract and at the time of disbursement
of funds, the Federal award number, any special CFDA number assigned
for ARRA purposes, and amount of ARRA funds.
Contractor may be required to provide detailed information regarding
expenditures so that the DISTRICT may fulfill any reporting
requirements under ARRA described in this section. The information
may be required as frequently as monthly or quarterly. Contractor agrees
to fully cooperate in providing information or documents as requested by
the DISTRICT pursuant to this provision. Failure to do so will be deemed
a default and may result in the withholding of payments and termination
of this Contract.
Applicabilitv of Prior Agreements. This document constitutes the entire AGREEMENT
between the Permittees with respect to the subject matter; all prior agreements,
representation, statements, negotiations, and undertakings are superseded hereby.
Execution of the AGREEMENT. This AGREEMENT may be executed in counterpart
and the signed counterparts shall constitute a single instrument.
No Separate Entity. This AGREEMENT established a framework for PERMITTEE
cooperation on storm water issues. Nothing in this AGREEMENT shall be construed to
create an entity separate from the local agencies that join in this cooperative effort.
2010MS4lmplementalion-Final
13
2011-36
565 IN WITNESS WHEREOF, the AGREEMENT has been executed as of the day and year first
566 above written.
567
568 EACH PERMITTEE'S SIGNATURE PAGE IS ATTACHED HERETO.
569
2010 MS4lmplementatiorl- Final
14
2011-36
NPDES Stormwater Implementation Agreement - Santa Ana Region
IN WITNESS WHEREOF, the AGREEMENT has been executed as of the day and year
first above written.
SAN BERNARDINO COUNTY FLOOD CONTROL DISTRICT
J~;.a2!~t~~orJ
Dated: JUN 2 8 2011
SIGNED AND CERTIFIED THAT A COP
THIS DOCUMENT HAS BEEN DE RED TO
THE CHA1RMAN OF THE B D
a H. Welch, Secretary
By
Deputy
"
APPROVED AS TO LEGAL FORM
JEAN RENE BASLE
County Counsel
//"') /
B>~;J;~i6;LASTICO
( P~incipal Assistant County Counsel
Date: c;,"'L ~ (,t
2011-36
NPDES Stormwater Implementation Agreement - Santa Ana Region
IN WITNESS WHEREOF, the AGREEMENT has been executed as of the day and year
first above written.
Dated:
JUN 2 8 2011
SIGNED AND CERTIFIED THAT A COPY OF
THIS DOCUMENT HAS BEEN DELIVERED TO
THE CHAIRMAN OF THE BOARD
Laura H. Welch
rd of Supervisors
an Bernardino
J'o
1>
fr'.-
APPROVED AS TO LEGAL FORM
JEAN RENE BASLE
:"~~f--
SCOTT M. RUNYAN
Deputy County Counsel
Date:
S-c> - l(
2011-36
IN WITNESS WHEREOF, the undersigned have executed this AGREEMENT
BY:
L~~
ATTEST:
~
APPROVED AS TO FORM:
~r.~
Best, Best & Krieger
City Attorneys
2011-36
IN WITNESS WHEREOF, the City of Chino has executed this agreement in Chino, California,
onbHA",l.e... 1 ,2010.
CITY OF CHINO:
d2-
By:
D'
(
'.
Date: j-L -I '2C-;;ln
By:
ity Manager
Date: lz.... \1. . \,~
DatG: l )..-Il.. .\ t>
Date:
Attest: ,', GA.-
By0~-
CityCle
San Bernardino County Stormwater Program
National Pollutant Discharge Elimination System Stormwater Permit Implementation Agreement,
Santa Ana Region NPDES No. CAS61B036, Order No. RB-2010-0036
2011-36
IN WITNESS WHEREOF, the Agreement has been executed this 14th day of
December, 2010.
By:
CITY OF CHINO HillS:
d~
ED GRAHAM, MAYOR
ATTEST:
.-.
MARK
072297
572
573
574
575
576
577
578
579
580
581
582
583
584
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586
587
588
589
2011-36
IN WITNESS WHEREOF, the AGREEMENT has been executed as of the day and year first
above written.
t'
EILEEN C GOMEZ
City Clerk
2011-36
565 IN WITNESS WHEREOF, the AGREEMENT has been executed as of the day and year first
566 above written.
567
CITY OF FONT ANA, a California municipal
corporation
By:
~,
Dated:
ATTEST: " /)
By: Jtf$A--' ~~
Tonia Lewis, City Clerk
ATTEST AS TO LEGAL FORM:
BEST BEST & KRIEGER LLP
BY:~
~it;tto~e;~V/ - V/
568
569
PDFConvert.1343.1.Agreement-lmplmentationJinaU2}.dOC
14
2011-36
IN WITNESS WHEREOF, the undersigned have executed this AGREEMENT as of the dates set
out.
Executed this 9th Day of November, 2010.
By 4,~G:
. Mayor
City of Grand Terrace
Attest: ~d~-
Brenda Mesa
City Clerk
2011-36
565 IN WITNESS WHEREOF, the AGREEMENT has been executed as of the day and year first
566 above written.
567
568 P
569 Executed this ~ day of February, 2011.
570
571
572
573
574
575 ATTEST:
576
577
578
579
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581
582
June B 2010 MS4 Imptmenlalion Draft Final-dean
14
2011-36
565 IN WITNESS WHEREOF, the AGREEMENT has been executed as of the day and year first
566 above written.
567
568 PLEASE INSERT YOUR AGENCY'S STANDARD SIGNATURE PAGE.
569
Approved the 12th day of April 2011.
ATTEST:
~{.J 4..j~J -,j 6.-1-
Pamela ByrnesJO'Camb
City Clerk
June 8 2010 MS4 lmplmefllallon Draft Rnal-clean,doc
CITY OF LOMA LINDA
rti.~
Rhodes Rigsby, Mayor
14
2011-36
59 XX. Applicability of Prior Agreements. This document constitutes the entire AGREE-
60 MENT between the Permittees with respect to the subject matter; all prior agreements,
61 representation, statements, negotiations, and undertakings are superseded hereby.
62 XXI. Execution of the AGREEMENT. This AGREEMENT may be executed in counterpart
63 and the signed counterparts shall constitute a single instrument.
64 XXII. No Separate Entity: This AGREEMENT established a framework for PERMITTEE
65 cooperation on stormwater issues. Nothing in this AGREEMENT shall be construed
66 to create an entity separate from the local agencies that join in this cooperative effort.
67 IN WITNESS WHEREOF, the AGREEMENT has been executed as of the day and year first
68 above written.
69
70
71
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75
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.80
81
82
DISTRICT
SAN BERNARDINO COUNTY
FLOOD CONTROL DISTRICT
CITY
CITY OF MONTCLAIR
By
Date~ t 8 20"
Date
RECOMMENDED FOR APPROVAL:
~onna M. Jack
~~
r ct ~ Redevelopment/
Public Works
~~0r
Date
1'-'1-10
APPROVED AS TO F
t~€
Date
Diane E. Robbins, City Attorney
Cj'./3./0
13
2011-36
In Witness Whereof, the Agreement has been executed as of the day and year first above written.
Executed this 21 st day of December 2010.
CITY OF ONTARIO
By:
a~
City Manager
Attest:
By: 2)~ W
A'!,-t . City Clerk
Approved as to Form:
.J~~
By:
John E. Brown
Best Best & Krieger LLP
City Attorney
2011-36
IN WITNESS WHEREOF, the undersigned have executed this National Pollutant
Discharge Elimination System Stormwater Permit Implementation Agreement, Santa Ana
Region, as of the dates set out.
Executed this 15th day of December, 2010.
"CITY"
THE CITY OF RANCHO CUCAMONGA,
a municipal corporation
By:
Attest:
'a~p
nice C. Reynold
APPROVED AS TO FORM:
Richards, Watson & Gershon
By: :c9.
J es Markman, City Attorney
2011-36
565 IN WITNESS WHEREOF, the AGREEMENT has been executed as of the day and year first
566 above written.
567
568
569 CITY OF REDLANDS
570 : n . n
~~~ 1),L ^~~
573 Pete AgUilar, Mayor
574
575
576
577
578 Attest:
579
~~~ ~~.
582 Sa.-n Irwin, ~lI:rk
MS4 Im9ItMfllallon [)-eft flMt-d-.n
14
2011-36
565 IN WITNESS WHEREOF, the AGREEMENT has been executed as of the day and year first
566 above written.
567
568
By:
TO
Attest:
By:
~~tm~ a M0~
Bar ara McGee
City Clerk
Approved as t Form:
By:
ded:
iRL}f~/
By:
Public Works Director/City Engineer
MS4 Implmentation Agr&emenl2
14
2011-36
2011-36
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
STORMW ATER PERMIT IMPLEMENTATION AGREEMENT
SANTA ANA REGION.
IN WITNESS WHEREOF, tlle Agreement has been executed as of the day and year first
above written.
~~~ );:;. G0A/A-
Rachel lark, City Clerk
CITY OF SAN BERNARDINO, a
Municipal Corporation
~~
-,_._~-".-
ATTEST:
..4"~
harles E. McNeely, lty Manager
Approved as to form:
James F. Penman
City. Attorney
By:
flU---
563
564
565
566
567
568
569
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572
573
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583
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586
587
2011-36
IN WITNESS WHEREOF, the AGREEMENT has been executed as of the day and year first
above written.
CITY OF UPLAND
Attest:
~~v~
Stephanie Mendenhall, City Clerk -
Approved As to Form:
~~~L-iJrt~Afj
William P. Curley III, City Attorney
June 8, 2010 MS4 2010_MS4Jmplementalion[1]
14
p
2011-36
City of Yucaipa
SIGNATURE PAGE
IN WITNESS WHEREOF, the City and the County of San Bernardino have executed this
Agreement the day and year first above written.
City of Yucaipa
YI~~
Dick Riddell, Mayor
ATTEST:
~
Jennifer S
General S . est City Clerk
City of Yucaipa
APPROVED AS TO FORM:
~~W
City Attorney
City of Yucaipa
APPROVED AS TO
CONTENT:
1{'2HI
Date
~-z..\-I\
Date
County of San Bernardino
By its Authorized Representatives:
a~ ~~28101l
~~~~
Bill Hemsley,
Director of Public Works/City
Engineer
:1M
Date
570
571
572
573
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2011-36
APPENDIX A
A.
The DISTRICT shall pay five percent (5%) of the total annual cost, and the COUNTY and
the remaining Co-permittees, collectively, shall pay the remaining ninety-five percent
(95 %) of the total annual cost pursuant to the formula set forth in Paragraph C, below.
B.
The Permittees total annual cost share is the sum of the individual cost-shares calculated
for each Program Cost Area.
c.
The Permittees annual cost share for each Program Cost Area (PCA;) shall be calculated
using three cost factors:
1. Base, which represents the percentage of the program costs equally applied to all
Permittees. The base (B) fraction is calculated as follows:
B = l/N, where N = number of Permittees
2. Relative Population, which represents the percentage of the program costs based
on the relative population of each Permittee. Relative population (RP) of each
Permittee shall be calculated annually from annual population estimates issued
by the California Department of Finance (E-1 Table).
RP; = (P;jPtotol), where
RP;=
P;=
Ptotal =
relative population of Permittee (i)
population of Permittee (i)
total population for area covered by the area-wide permit
3. Relative Land Area, which represents the percentage of the program costs based
on the relative land area of each Permittee. Relative Land Area (RLA) shall be
calculated as follows:
a. The calculation of relative land area within each Permittee's jurisdiction
shall exclude land under tribal, state or federal jurisdiction, or any land
excluded by the State Water Resources Control Board. Any Permittee
seeking to exclude lands under this Section shall specifically request that
exclusion from the Principal Permittee by providing the request in
writing along with necessary documentation no later than October 1 to be
considered for inclusion in the next year's annual budget. The requesting
Permittee has the burden of proving entitlement to any exemption so
requested.
b. The method for calculating relative land area shall be determined from
the Assessor's Parcel data provided by the COUNTY Information
Services Department.
RLA; = (L;/Ltot,]), where
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RLA, = relative land area of Co-permittee (i)
L = land area of Co-permittee (i), less excluded lands
L'olo1 = total land area under permit jurisdiction
D.
The Permittee's cost share for each individual Program Cost Area is based on the
relative importance of the cost factors to the Program Cost Area as identified in budget
year-specific Tables 1, 2 and 3. The cost share calculation for each Program Cost Area,
which will be phased in over a three year period as shown in Tables 1, 2 and 3, is as
follows:
PCA, = [(B * X, * AB,) + (RP, * y, * AB,) + (RLA, * z, * AB,)]
Where,
,
PCA,=
AB,=
Permittee's cost share for PCA,
Annual budget for PCA,
B=
X,=
Base fraction for each Permittee
Percentage apportioned to the base for PCA,
RP,=
Y,=
Relative population of Permittee(,)
Percentage apportioned to relative population for PCA,
RLA, =
Z,=
Relative land area of the Permittee(,)
Percentage apportioned to relative land are for PCA,
E.
The Permittee's total annual cost share shall be calculated by summing the cost shares
calculated for each individual Program Cost Area:
Permittee's annual cost share = PCAI + PCA, + PCA, + PCA.
Table 1. Budget Year [DATE)
Percent of the Program Cost Area
Apportioned to each Cost Factor
Program Cost Areas (PCA;) Relative Relative
Base
(X,) Population Land Area
(y,) (Z,)
Monitoring (PCA,) 10% 30% 60%
Public Education (PCA2) 10% 80% 10%
Program Management & 30% 50% 20%
ReO"ulatorv Activities (PCA,)
Training (PCA.) 30% 60% 10%
2010MS41mplemenlation-Final
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2010MS4lmplementation-Final
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2011-36
1 NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
2 STORMWATER PERMIT IMPLEMENTATION AGREEMENT
3 SANTA ANA REGION
4
5
6 This AGREEMENT entered into as of this [DATE] by the County of San Bernardino, (herein
7 called the COUNTY), the San Bernardino County Flood Control District (herein called the
8 DISTRICT), and the Cities of Big Bear Lake, Chino, Chino Hills, Colton, Fontana, Grand Terrace,
9 Highland, Loma Linda, Montclair, Ontario, Rancho Cucamonga, Redlands, Riaho, San
10 Bernardino, Upland, and Yucaipa (herein called the CmES) establishes the responsibilities of
II each party with respect to compliance with National Pollutant Discharge Elimination System
12 (NPDES) Stormwater regulations administered by the California Regional Water Quality
13 Control Board, Santa Ana Region (SARWQCB) by the authority granted by the federal Clean
14 Water Act (CW A) and its 1987 amendments and the Water Quality Act (WQA).
15
16 RECITALS
17
18 Whereas
19 Congress in 1987 amended Section 402 of the Federal Clean Water Act (33 U.S.c.A. 1342
20 (P)) to require the federal Environmental Protection Agency (EPA) to promulgate regulations
2] for applications for permits for stormwater discharges; and
22
23 Whereas
24 These permit regulations require the control of pollutants from stormwater discharges
25 by requiring a National Pollutant Discharge Elimination System (NPDES) Permit for the'
26 discharge of stormwaters into waters of the United States; and
27
28 Whereas
29 These EP A regulations require NPDES permits for discharges from municipal separate
30 storm sewer systems (MS4 Permit) on a system-wide or jurisdiction-wide basis; and
31
32 Whereas
33 The State Legislature, in enacting the San Bernardino County Flood Control Act, created
34 the San Bernardino County Flood Control District to provide for the control of flood and storm
35 waters; and
36
37 Whereas
38 The Powers granted to the DISTRICT by the San Bernardino County Flood Control Act
39 include carrying on technical and other investigations, examinations, or tests of all kinds,
40 making measurements, collecting data, and making analyses, studies, and inspections
41 pertaining to water supply, control of floods, use of water, water quality, nuisance, pollution,
42 waste, and contamination of water both within and without the DISTRICT; and
43
44 Whereas
45 The CITIES, the COUNTY and 'the DISTRICT desire to develop and implement an
46 integrated stormwater discharge management program with the objective of improving water
47 quality in the Santa Ana Watershed portion of San Bernardino County; and
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Whereas
The California State Water Resources Control Board (SWRCB) as designee of the EPA
has delegated authority to the Regional Water Quality Control Board - Santa Ana Region
(SARWQCB) for administration of the MS4 Permit program and issuance of MS4 Permits within
the boundaries of their Region; and
Whereas
The DISTRICT, COUNTY, and CITIES have been designated as joint permittees
(Permittees) by the SARWQCB for the MS4 Permit issued to the County of San Bernardino; and
Whereas
The DISTRICT has been designated as the Principal Permitee in the MS4 Permit; and
Whereas
The COUNTY and the CITIES have been designated as the Co-permittees in the MS4
Permit; and
Whereas
Cooperation between the OTIES, the COUNTY, and the DISTRICT to jointly file an
application for the MS4 Permit is in the best interest of the OTIES, the COUNTY, and the
DISTRICT; and
Whereas
The Permittees shall establish and maintain a Management Committee to coordinate
compliance with MS4 Permit requirements and implement a Stormwater Management Program
across all jurisdictions covered by this MS4 Permit; and
NOW THEREFORE, the parties hereto do mutually agree as follows:
1. Filing Status. The COUNTY, DISTRICT, and CmES will jointly file the application for
an area-wide storm water permit. The COUNTY, the DISTRICT, and each individual
CITY will be a Permittee.
II. Management Committee. The DISTRICT, as Principal Permittee, and COUNTY and
0TlES, as Co-permittees, shall support and facilitate compliance with area-wide MS4
Permit requirements and implementation of the Stormwater Management Program
through the workings of the Management Committee. The responsibilities and structure
of this committee shall include:
A. The purpose of the Management Committee shall be to develop policies,
(including goals, needs, and priorities) budgets, and implementation
strategies and plans for the area-wide Stormwater Management Program
to ensure compliance with the MS4 Permit. The Management Committee
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2011-36
shall evaluate implementation options and strategies and recommend
implementation actions to the DISTRICT.
B.
Each Permittee shall designate in writing at least one authorized
representative and one alternate to participate on the Management
Committee. Management Committee designees and alternates shall be
authorized by their respective city council or governing board to cast
votes on behalf of their jurisdiction to determine Stormwater
Management Program budgets and all other program elements required
to implement the areawide Municipal Stormwater Management Plan
(MSWMP).
c.
The Principal Permittee shall serve as the chairperson for the
Management Committee.
D.
The Management Committee shall meet at least once each month, except
during the month of December.
E.
Ten (10) authorized representatives present in person at a scheduled
meeting constitute a quorum for the transaction of business of the
Management Committee. If a quorum is not present at a scheduled
Management Committee meeting, less than a quorum may adjourn the
meeting. For all Management Committee actions other than approval of
the budget as set forth in Section VILC.1. of this AGREEMENT, a
majority vote of the quorum shall decide any question brought before the
Management Committee for decision.
F.
The Management Committee shall support Stormwater Management
Program implementation by providing guidance to the Principal Permittee
with respect to storm water program administration and approving
elements of the area-wide MSWMP.
The Management Committee may establish subcommittees to support
the work of the Management Committee. Subcommittees shall include
interested members of the Management Committee, and/ or other
Permittee staff with necessary expertise. Subcommittees may develop
recommendations for Management Committee consideration. Such
recommendations require majority approval by members of the
subcommittee on a one vote per Permittee basis.
Approval of Management Committee decisions will require a majority
vote of the authorized representatives or alternates in attendance, on a one
vote per Permittee basis. In the event that the Management Committee
does not approve a subcommittee recommendation, the item will be
directed back to the subcommittee for reconsideration.
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1. All parties to this AGREEMENT achieve cost savings by working
collectively to implement the areawide stormwater program. To
maximize these cost savings, the Permittees agree that:
1. Each authorized representative shall actively participate in at least
9 of 11 monthly Management Committee meetings;
2. Each Permittee shall actively participate in at least one
subcommittee, either through the authorized representative or
other authorized designee. Participation will be defined as
attendance at fifty percent (50%) or more of subcommittee
meetings held in a given fiscal year.
III. Principal Permittee Responsibilities.
The DISTRICT, acting through its Board of Directors, is the Stormwater Program Administrator
for purposes of this AGREEMENT. The District shall have administrative responsibilities and
shall be reimbursed for its time expended on behalf of the Stormwater Program. These rates
include actual hourly rate plus overhead. Materials are to be reimbursed at direct cost.
The DISTRICT, while acting as administrator, will strive to implement the policies, budget, and
required program elements according to the recommendations of the Management Committee.
In turn, the Management Committee will work in good faith with the DISTRICT to make
reasonable policy, budget and required program element recommendations to the
DISTRICT. The Parties recognize and acknowledge, however, that the DISTRICT, as governed
by the San Bernardino County Board of Directors, retains final authority regarding the nature
and manner in which the recommendations of the Management Committee shall be executed.
In the event that the DISTRICT proposes to implement an approach different than the one
recommended by the Management Committee, the DISTRICT's proposed alternative action
shall be communicated to the Management Committee at the next available meeting of the
Management Committee. If the Management Committee approves the alternative action, then
the cost sharing provisions of this AGREEMENT shall govern the allocation of any costs
associated with that alternative action. If, in good faith, the Management Committee does not
approve the alternative action, the DISTRICT may implement the alternative action, but the
DISTRICT shall be solely responsible for paying the increased costs, if any, resulting from the
alternative action. This increased cost shall be measured by the difference between the cost of
the alternative action and the estimated cost of the action as reasonably recommended by the
Management Committee.
If the DISTRICT'S proposed alternative implementation action involves an increase in program
costs, that alternative implementation action shall not be adopted until such time as each
authorized representative of the Management Committee has had 45 days to relay that
alternative implementation action to its various governing bodies for approval. CITIES and
COUNTY shall have no responsibility for the incremental increase in cost associated with an
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2011-36
alternative action that is not approved by the Management Committee after 45 days has passed
with the governing bodies failing to approve the alternative implementation action.
The DISTRICf will act as the contracting party, on behalf of the Co-permittees for Stormwater
Management Program contracts and agreements with all consultants, contractors, vendors or
other entities as recommended by the Management Committee.
The D1STRICf, if recommended by the Management Committee, may act on behalf of the Co-
permittees as applicant in preparing and submitting grant proposals, and may act as
administrator for any awarded grant funds.
The DISTRICf, if recommended by the Management Committee, will act on behalf of the
Stormwater Program as the contracting party and signatory in joint agreements with other
municipal stormwater programs and stakeholders for regional benefits and cooperation.
As the Principal Permittee under the MS4 Permit, the DISTRICT shall coordinate all area-wide
MS4 Permit activities and manage the Stormwater Management Program by:
A. Conducting chemical, biological and bacteriological water quality
monitoring on behalf of the areawide program as required by the MS4
Permit.
B. Implementing management programs, monitoring programs, and related
plans as required by the MS4 Permit.
C. Preparing and submitting to the Executive Officer (SARWQCB) unified
reports, plans, and programs necessary to comply with the MS4 Permit.
D. Coordinating and conducting Management Committee meetings as
specified in the MSWMP.
E. Taking the lead role in initiating and developing area-wide programs and
activities necessary to comply with the MS4 Permit.
F. Participating, as needed, in any subcommittees formed to facilitate MS4
Permit requirements.
G. Providing technical and administrative support and inform the Co-
permittees of the progress of other pertinent municipal programs, pilot
projects, research studies, and other information to facilitate
implementation of Co-permittees' stormwater program.
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lV.
2011-36
H. Coordinating the implementation of area-wide Stormwater Management
Program activities such as a monitoring program, public education, and
pollution prevention.
1. Gathering and disseminating information on the progress of statewide
municipal stormwater programs and evaluate the information for
potential use in the execution of the MS4 Permit.
J. Monitoring the implementation of the plans and programs required by
the MS4 Permit and determine their effectiveness in attaining water
quality standards.
K. Coordinating with SARWQCB activities pertaining to implementation of
the MS4 Permit, including the submittal of all required reports, plans, and
programs.
L. Soliciting and coordinating public input for any major proposed
stormwater management programs and implementation plans.
M. Developing and implementing mechanisms, performance standards, etc.,
to promote consistent implementation of Best Management Practices
among the Permittees.
N. Cooperating in watershed management programs and regional and/or
statewide monitoring programs.
Co-permittee Responsibilities. The Co-permittees shall support the Principal Permittee
by:
A. Preparing and submitting to the Principal Permittee in a timely manner
all required information necessary to comply with permit reporting
requirements. Timely completion of Permittee annual report
information is considered meeting the deadline if received on or before
September 15th of each reporting year.
B. Notifying the Principal Permittee immediately, in writing, of any
changes to the designated representative to the Management
Committee.
C. Reviewing and commenting on all plans, strategies, management
programs, and monitoring programs, as developed by the Principal
Permittee or a subcommittee of the Management Committee.
D. Conducting and/ or coordinating with the Principal Permittee on any
surveys or characterizations needed to identify pollutant sources from
specific drainage areas.
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V.
VI.
VII.
2011-36
Compliance Responsibilities. The DISTRICT, COUNTY and CITIES are individually
responsible for implementing all MS4 Permit requirements within their respective
jurisdictions. The Management Committee does not assume any responsibility for
implementing the Stormwater Management Programs for the Principal Permittee or any
other Permittee or for ensuring that the Principal Permittee or the Co-permittees
implement programs consistent with the recommendations of the Management
Committee.
Indemnification and Insurance. Each party shall indemnify, defend, and hold harmless
the other parties to this AGREEMENT from and against any and all liability and expense
arising from any act or omission of the indemnifying party, its authorized officers,
employees, agents, and volunteers in connection with the performance of this
AGREEMENT, including, but not limited to reasonable defense costs, reasonable legal
fees, claims, actions, damages, liability, and causes of action for damages of any nature
whatsoever; provided, however, that no party shall indemnify another party for that
party's own negligence or willful misconduct.
In the event a party, or parties, to this AGREEMENT is/ are found to be comparatively at
fault for any claim, action, loss or damage which results from their respective obligations
under this AGREEMENT, the party, or parties shall indemnify the other party / parties to
the extent of its/ their comparative fault. Furthermore, if a party attempts to seek
recovery from the other for Workers' Compensation benefits paid to an employee, the
parties agree that any alleged negligence of the employee shall not be construed against
the employer of that employee.
The parties to this AGREEMENT are authorized self-insured public entities for purposes
of Professional liability, Automobile Liability, General liability, and Workers'
Compensation and warrant that through their programs of self-insurance, they have
adequate coverage or resources to protect against liabilities arising out of their
performance under this Agreement.
Program Costs. The responsibilities for payment of all shared costs of equipment,
services, contracted analytical services, and the cost of implementing the MS4 Permit,
shall be distributed among the DISTRICT, COUNTY, and CITIES as follows:
A. The DISTRICT shall contribute 5% of the annual Program Costs; the other
Permittees shall be responsible for the remaining 95 % of the Program
Costs.
B. The annual budget shall separate program costs into four Program Areas:
1. Monitoring, which shall include any water quality and
hydrographic monitoring and laboratory analyses.
2. Public Education, which shall include all public outreach programs.
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2011-36
3. Program Management & Regulatory Actiz'ities, which includes
administrative, reporting and regulatory activities.
4. Training, which addresses any training conducted to implement
the stormwater management program.
The Principal Permittee shall prepare and implement an annual operating
budget with the participation of the Permittees. The budget year shall
coincide with the fiscal year of the DISTRICT, July 1 - June 30.
c.
1. The Principal Permittee will forward the annual operating budget
for the forthcoming year to the Co-permittees for review and
approval. The review period shall be from the first business day of
November to the first business day of December of each year.
During the review period, the Co-permittees may provide written
comments on the budget to the Principal Permittee. The Fiscal
Subcommittee will review the comments on the budget and
endorse a draft budget for Management Committee approval. The
Management Committee will consider the draft budget for
approval at the January meeting. An affirmative response from a
majority of the total number of authorized representatives or
authorized alternates is required for approval.
D.
For Fiscal Year 2010/11, the Permittees cost share shall be as follows:
PERMITTEE
Big Bear Lake
Chino
Chino Hills
Colton
Fontana
Grand Terrace
Highland
Lorna Linda
Montclair
Ontario
Rancho Cucamonga
Redlands
Rialto
San Bernardino
Upland
Jl.Jt1e 8 2010 MS4 Imc>lmentalion 0r8f1 F"1ll8I--dean.doc
PERCENTAGE SHARE
1.98
4.59
5.08
3.48
745
0.80
2.21
1.36
2.19
] 1.99
9.8]
4.84
5.58
12.13
5.05
8
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370
371
372
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375
376
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2011-36
PERMITTEE
Yucaipa
County
District
TOTAL
PERCENTAGE SHARE
3.42
13.04
5.00
100
E.
For Fiscal Year 2011/12, and all subsequent fiscal years the Permittees
cost share shall be determined annually according to the methodology
provided in Appendix A.
F.
For Fiscal Year 2011/12, and all subsequent fiscal years, the Permittees
annual cost share shall be calculated by November 1 of each year and
shall be included in the annual budget proposal.
G.
The DISTRICT shall invoice each CITY and the COUNTY for its annual
deposit after July 1, the start of the fiscal year. Each CITY and the
COUNTY shall pay the deposit within 30 days of the date of the invoice.
Each OTY's and the COUNTY's deposit shall be based on their prorated
share of the approved annual budget, reduced for any surplus identified
in the prior fiscal year-end accounting.
H.
The DISTRICT shall make reasonable efforts to inform the Management
Committee during the fiscal year of potential exceedances of the approved
budget that may require the Parties to increase the deposits. If at any time
during a fiscal year the program costs exceed the sum of the deposits, the
DISTRICT shall submit invoices to the cmps and the COUNTY to
recover the deficit. The share for each CITY and the COUNTY shall be
prorated according to the formula above (see Paragraphs D and E of this
Section). Each CITY and COUNTY shall pay the invoice within 30 days of
the billing date.
I.
The DISTRICT shall prepare a fiscal year end accounting at the end of
each fiscal year and distribute copies to the Permittees for their review by
October 31 of that year. Permittees shall have 30 calendar days from the
date of their receipt of the fiscal year end accounting to dispute in writing
or concur with the findings. If the fiscal year end accounting results in
costs exceeding the sum of the deposits (including interest earnings), the
DISTRICT shall invoice each CITY and the COUNTY for its prorated
share of the excess cost. Each CITY and the COUNTY shall pay the billing
within 30 days of the date of the invoice. If the fiscal year end accounting
results in the sum of the deposits (including interest earnings) exceeding
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VIII.
x.
2011-36
costs, the excess deposits will carry forward to reduce the billings for the
following year.
J. Upon termination of the program, a final accounting shall be performed
by the DISTRICT. If costs exceed the sum of the deposits (including
interest earnings), the DISTRICT shall invoice each CITY and the
COU,,"TY for its prorated share of the excess. Each CITY and the
COUNTY shall pay the invoice within 30 days of the date of the invoice.
If the sum of the deposits (including interest earnings) exceeds the costs,
the DISTRICT shall reimburse to each CITY and the COUNTY its
prorated share of the excess (including any interest earnings remaining),
within 30 days of the final accounting.
K. Each CITY and the COUNTY shall bear the financial responsibility for
implementing the program within its jurisdictional boundaries, including
any applicable MS4 permit fees, as outlined in Section V .
L. The annual administrative costs (includes actual hourly rate plus
overhead) incurred by the DISTRICT shall be included in the budget for
the Areawide Program Costs and paid according to this Section, Section
III and Appendix A.
M. The financial responsibility for this AGREEMENT will be effective on the
date this AGREEMENT takes effect.
IX.
Term of the AGREEMENT. The term of the AGREEMENT coincides with the term of
the current MS4 Permit (Order No. R8-2010-0036). The renewal process of the
Implementation Agreement shall begin at the same time as the initiation of the Report of
Waste Discharge renewal and shall be completed within 6 months from the SARWQCB
approval date of the MS4 Permit that follows Order No. R8-2010-0036. This
AGREEMENT shall therefore take effect on the date it is approved by all parties and
shall terminate 6 months after SARWQCB approval of the MS4 Permit that follows
Order No. R8-2010-0036.
Additional Parties. Any city or other entity which wishes to be a Permittee on the San
Bernardino County MS4 Permit that was issued by SARWQCB shall agree to the
provisions in this funding agreement and shall sign this AGREEMENT prior to being
included in the permit. The date of initiation, for determining participant costs for any
new Permittee shall be the date of inclusion in the San Bernardino County MS4 Permit
issued by SARWQCB. The cost for adding any additional Permittee to the program,
including additional permit and processing fees, shall be paid by the added Permittee.
Monies, if any, to be reimbursed to the existing Permittees shall be credited to their
respective annual program operating fees for the following budget year.
Withdrawal from the AGREEMENT. A Permittee may withdraw from this
AGREEMENT at the end of any fiscal year with written notice being received by the
DISTRICT 90 days prior to the end of the fiscal year. A withdrawing Permittee will not
be allowed refunds for tasks, projects or studies already underway in which funds have
Jul'le 8 2010 MS4 Imolm8f1tation DlCltt Final-clean.doc
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2011-36
425 been obligated for the fiscal year. Upon completion of tasks, projects or studies
426 undertaken or on-going, if any funds are not expended, a refund of the share of the
427 balance shall be paid within sixty (60) days thereafter to the withdrawing Pennittee.
428
429 The withdrawing Pennittee shall be responsible for all assessed penalties as a
430 consequence of withdrawal. The cost allocations to the remaining members will be
431 calculated in the following budget year.
432
433 Xl. Breach. Failure to comply with the terms of this AGREEMENT is a breach of the
434 agreement. If a breach is not cured within ninety (90) days after receiving a notice to
435 cure the breach by a permittee, pennittee in breach may be terminated from this
436 AGREEMENT by a majority vote of the Management Committee.
437
438 Xli. Non-compliance with MS4 Pennit Requirements. Any Permittee found in non-
439 compliance with the conditions of the MS4 Pennit within their jurisdictional
440 responsibilities shall be solely liable for any assessed penalties, pursuant to Section
441 13385 of the Water Code. Penalties that apply to all the Permittees shall be assessed
442 according to the formula in Appendix A.
443
444 XlTI. Legal Action/Costs/ Attorney Fees. Where any legal action is necessary to declare any
445 party's rights hereunder or enforce any provision hereof for any damages by reason of
446 an alleged breach of any provisions of this AGREEMENT, each party shall bear its own
44 7 attorney's fees and costs incurred in conjunction with such legal action regardless of
448 who is found to be the prevailing party. This section shall not apply to those costs and
449 attorney's fees arising from any third party legal action against a party hereto and
450 payable under Section VI, Indemnification and Insurance.
451
452 XIV. Amendments to the AGREEMENT. This AGREEMENT may be amended by consent to
453 a two-thirds majority of the Permittees (rounded to the nearest whole number).
454 Amendments to this AGREEMENT may be adopted and executed concurrently, and
455 shall become effective upon its execution by a majority of the Pennittees as defined
456 above.
457
458 XV. Authorized Signatories; Each Pennittee will determine by either resolution or ordinance
459 who will be the authorized signatory. This person shall be authorized to execute the
460 application(s) for MS4 Pennit(s) and take all other procedural steps necessary to file the
461 application(s) for MS4 Pennits.
462
463 XVI. Notices. All notices shall be deemed duly given if delivered by hand; or five (5) working
464 days after deposit in the U.s. Mail, certified mail, return receipt requested.
465
466 XVII. Governing Law. This AGREEMENT will be governed and construed in accordance with
467 laws of the State of California. If any provision or provisions of this AGREEMENT shall
468 be held to be invalid, illegal or unenforceable, the validity, legality, and enforceability of
469 the remaining provisions shall not in any way be affected or impaired hereby. Any legal
470 action which arises out of or is in any way related to this AGREEMENT shall be brought
471 in the Superior Court of the County of San Bernardino.
June 6 2010 MS4lmplmentalion Draft Final"-clel!ln.doc
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XVIII.
XIX.
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Consent to Breach not Waiver. No term or provision hereof shall be deemed waived
and no breach excused, unless such waiver or consent shall be in writing and signed by
any Pennittee to have waived or consented. Any consent by any Permittee to, or waiver
of, a breach by the other whether expressed or implied, shall not constitute a consent to,
waiver of, or excuse for any other different or subsequent breach.
American Recovery and Reinvestment Act of 2009 I" ARRA"). DlSTRIcr, while acting
as the Stormwater Program Administrator, shall include in any contract funded in
whole, or in part, by ARRA provisions that substantially conform to the following:
A. Use of ARRA Funds and Requirements. This Contract may be funded in
whole or in part with funds provided by the American Recovery and
Reinvestment Act of 2009 ("ARRA"), signed into law on February 17,
2009. Section 1605 of ARRA prohibits the use of recovery funds for a
project for the construction, alteration, maintenance or repair of a public
building or public work (both as defined in 2 CFR 176.140) unless all of
the iron, steel and manufactured goods (as defined in 2 CFR 176.140)
used in the project are produced in the United States. A waiver is
available under three limited circumstances: (i) Iron, steel or relevant
manufactured goods are not produced in the United States in sufficient
and reasonable quantities and of a satisfactory quality; (Ii) Inclusion of
iron, steel or manufactured goods produced in the United States will
increase the cost of the overall project by more than 25 percent; or (ill)
Applying the domestic preference would be inconsistent with the public
interest. This is referred to as the "Buy American" requirement. Request
for a waiver must be made to the DISTRICT for an appropriate
determination.
Section 1606 of ARRA requires that laborers and mechanics employed by
contractors and subcontractors on projects funded directly by or assisted
in whole or in part by and through the Federal Government pursuant to
ARRA shall be paid wages at rates not less than those prevailing on
projects of a character similar in the locality as determined by the
Secretary of Labor in accordance with the Davis-Bacon Act (40 U.s.e. 31).
This is referred to as the "wage rate" requirement.
The above described provisions constitute notice under ARRA of the Buy
American and wage rate requirements. Contractor must contact the
DlSTRlcr contact if it has any questions regarding the applicability or
implementation of the ARRA Buy American and wagE;! rate requirements.
Contractor will also be required to provide detailed information
regarding compliance with the Buy American requirements, expenditure
of funds and wages paid to employees so that the DISTRlcr may fulfill
any reporting requirements it has under ARRA. The information may be
required as frequently as monthly or quarterly. Contractor agrees to fully
cooperate in providing information or documents as requested by the
DlSTRIcr pursuant to this provision. Failure to do so will be deemed a
JlXle 8 2010 MS4 Implmentaliorl Drah Fil18l-clean.doc
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XXI.
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default and may result in the withholding of payments and termination
of this Contract.
Contractor may also be required to register in the Central Contractor
Registration (CCR) database at http://www.ccr.gov and may be required
to have its subcontractors also register in the same database. Contractor
must contact the DISTRICT with any questions regarding registration
requirements.
B. Schedule of EXPenditure of Federal Awards. in addition to the
requirements described in "Use of ARRA Funds and Requirements,"
proper accounting and reporting of ARRA expenditures in single audits
is required. Contractor agrees to separately identify the expenditures for
each grant award funded under ARRA on the Schedule of Expenditures
of Federal Awards (SEPA) and the Data Collection Form (SF-SAC)
required by the Office of Management and Budget Grcu1ar A-133,
"Audits of States, Local Governments, and Nonprofit Organizations."
This identification on the SEFA and SF-SAC shall include the Federal
award number, the Catalog of Federal Domestic Assistance (CFDA)
number, and amount such that separate accountability and disclosure is
provided for ARRA funds by Federal award number consistent with the
recipient reports required by ARRA Section 1512 (c).
In addition, Contractor agrees to separately identify to each subcontractor
and document at the time of sub-contract and at the time of disbursement
of funds, the Federal award number, any special CFDA number assigned
for ARRA purposes, and amount of ARRA funds.
Contractor may be required to provide detailed information regarding
expenditures so that the DISTRICT may fu1fill any reporting
requirements under ARRA described in this section. The information
may be required as frequently as monthly or quarterly. Contractor agrees
to fully cooperate in providing information or documents as requested by
the DISTRICT pursuant to this provision. Failure to do so will be deemed
a default and may result in the withholding of payments and termination
of this Contract.
Applicability of Prior Agreements. This document constitutes the entire AGREEMENT
between the Permittees with respect to the subject matter; all prior agreements,
representation, statements, negotiations, and undertakings are superseded hereby.
Execution of the AGREEMENT. This AGREEMENT may be executed in counterpart
and the signed counterparts shall constitute a single instrument.
No Separate Entity. This AGREEMENT established a framework for PERMITTEE
cooperation on storm water issues. Nothing in this AGREEMENT shall be construed to
create an entity separate from the local agencies that join in this cooperative effort.
June 8 2010 MS4 ImplmenUttion Draft. FiNlI-dean.doe
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2011-36
565 IN WITNESS WHEREOF, the AGREEMENT has been executed as of the day and year first
566 above written.
567
568 PLEASE INSERT YOUR AGENCY'S STANDARD SIGNATURE PAGE.
569
June 8 2010 MS4 tmplmeotalion Draft Final--dllsn.ooc
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2011-36
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
STORMW ATER PERMIT IMPLEMENTATION AGREEMENT
SANTA ANA REGION.
IN WITNESS WHEREOF, the Agreement has been executed as of the day and year first
above written.
ATTEST:
CITY OF SAN BERNARDINO, a
Municipal Corporation
Qrd'fP ~~.. CLv-Jc
Rach'et Clark, City Clerk
~
Approved as to form:
James F. Penman
City Attorney
By:
flu-...-
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APPENDIX A
A.
The DISTRICT shall pay five percent (5%) of the total annual cost, and the COUNTY and
the remaining Co-permittees, collectively, shall pay the remaining ninety-five percent
(95%) of the total annual cost pursuant to the formula set forth in Paragraph C, below.
B.
The Permittees total annual cost share is the sum of the individual cost-shares calculated
for each Program Cost Area.
c.
The Permittees annual cost share for each Program Cost Area (PCA) shall be calculated
using three cost factors:
1. Base, which represents the percentage of the program costs equally applied to all
Permittees. The base (B) fraction is calculated as follows:
B = l/N, where N = number of Permittees
2. Relative Population, which represents the percentage of the program costs based
on the relative population of each Permittee. Relative population (RP) of each
Permittee shall be calculated annually from annual population estimates issued
by the California Department of Finance (E-1 Table).
RP, = (PJPtotal), where
RP,=
P,=
Ptota'=
relative population of Permittee (i)
population of Permittee (i)
total population for area covered by the area-wide permit
3. Relative Land Area, which represents the percentage of the program costs based
on the relative land area of each Permittee. Relative Land Area (RLA) shall be
calculated as follows:
a. The calculation of relative land area within each Permittee's jurisdiction
shall exclude land under tribal, state or federal jurisdiction, or any land
excluded by the State Water Resources Control Board. Any Permittee
seeking to exclude lands under this Section shall specifically request that
exclusion from the Principal Permittee by providing the request in
writing along with necessary documentation no later than October 1 to be
considered for inclusion in the next year's annual budget The requesting
Permittee has the burden of proving entitlement to any exemption so
requested.
b. The method for calculating relative land area shall be determined from
the Assessor's Parcel data provided by the COUNTY Information
Services Department.
RLA = (Li/Ltotal), where
June 8 2010 MS4 Implmenlation Draft Final-.-<lean.doc
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D.
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RLA = relative land area of Co-permittee (i)
1, = land area of Co-permittee (i), less excluded lands
Ltmal = total land area under permit jurisdiction
The Permittee's cost share for each individual Program Cost Area is based on the
relative importance of the cost factors to the Program Cost Area as identified in budget
year-specific Tables 1, 2 and 3. The cost share calculation for each Program Cost Area,
which will be phased in over a three year period as shown in Tables 1, 2 and 3, is as
follows:
PCA, = [(B * X, * AB,) + (RP, * Y, * AB,) + (RLA, * z, * AB,)]
Where,
PCA=
AB,=
Permittee's cost share for PCA,
Annual budget for PCA,
B=
X,=
Base fraction for each Permittee
Percentage apportioned to the base for PCA
RP,=
Y,=
Relative population of Permittee(,)
Percentage apportioned to relative population for PCA,
RLA,=
Z,=
Relative land area of the Permittee(,)
Percentage apportioned to relative land are for PCA,
E.
The Permittee's total annual cost share shall be calculated by summing the cost shares
calculated for each individual Program Cost Area:
Permittee's annual cost share = PCA, + PCA2 + PCA, + PCA.
Table 1. Budget Year [DATE]
Percent of the Program Cost Area
Apportioned to each Cost Factor
Program Cost Areas (PCA,) Relative Relative
Base Population Land Area
(X,) (YI) (Z,)
Monitoring (PCA,) 10% 30% 60%
Public Education (PCA,) 10% 80% 10%
Program Management & 30% 50% 20%
Re.;;uatorv Activities IPCA.,\
Training (PCA.) 30% 60% 10%
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June a 2010 MS4 Implmenlation DnriI FII'laI~an.doc
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