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12-14-2010 CC Rpt A10 COUNCIL AGENDA STAFF REPORT CITY CLERK USE ONLY Meeting Date: December 14, 2010 R E C El V ED Public Hearing: ❑ Discussion Item: ❑ 2010 DEC -6 AM 10 54 Consent Item: OFFICE OF CITY CLERK MHO FULLS December 7, 2010 TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS FROM: CITY MANAGER SUBJECT: NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES) IMPLEMENTATION AGREEMENT 2010 RECOMMENDATION: 1. Approve the National Pollutant discharge Elimination System Storm Water Permit Implementation Agreement 2010. 2. Authorize the City's cost share for NPDES Program participation at 5.48% of the annual NPDES Area-wide Program budget beginning fiscal year 2011/2012. BACKGROUND/ANALYSIS: In 1990, the City and 16 other western San Bernardino County cities formed a consortium to establish the San Bernardino County Area Wide Storm Water Program. The purpose of the consortium was to carry out Federal mandates contained in the National Pollutant Discharge Elimination System (NPDES) Program. Requirements of the NPDES Program are contained in the Municipal NPDES Permit No. R8-2002-0012 issued by the Santa Ana Regional Water Quality Control Board. The Area-wide NPDES Program was formed under the leadership of the San Bernardino County Flood Control District. In accordance with Permit No. R8-2002-0012, the Area-wide NPDES Program designates the County Flood Control District as the Principal Permitee, and the 17 participating cities as Co-Permitees. Since 1990, the NPDES Area-wide Program has operated under provisions of an implementation agreement where Permit responsibilities and mechanisms to determine program cost shares among member agencies are specified. Since the original agreement was executed in 1990, there has been one amendment executed in 1995 to correct inaccuracies in baseline rainfall and runoff data utilized in calculating the cost share percentages. The rewriting of the proposed 2010 Implementation Agreement is the result of many months of discussion among the Principal Permitee and the Co- Permitees to resolve apparent disparities in benefits realized by Co-Permitees as compared with cost share percentages. The agreed upon solution is a cost share formula that is based on municipal characteristics like total land area, population, and base usage of program resources. /9la AGENDA DATE: December 14, 2010 PAGE TWO SUBJECT: NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES) IMPLEMENTATION AGREEMENT 2010 The cost share calculation methodology proposed in the 2010 NPDES Program Implementation Agreement is derived in a two-step manner: First step, the three primary criteria for distributing costs are established: 1). Base Cost —a 10% factor which all participating cities are subject to; 2). Population — derived from California Department of Finance; and, 3). Total land area less State, Federal, and Tribal Land — derived from San Bernardino County parcel totals. The second step in determining Co-Permittees cost share is to multiply the three categorical costs by the budget amounts of each of the four major NPDES Program budget classifications: Monitoring, Public Education, Program Management, and Training. Under the proposed cost share formula, the City's cost share will increase from the current 5.08% to 5.48%. REVIEW BY AFFECTED DEPARTMENTS: This item has been reviewed by the City Attorney and the Finance Director. FISCAL IMPACT: Based on the 2010 NPDES program budget, the City's NPDES program participation cost for the 2011/2012 fiscal year would increase from $ 94, 835 to $ 102,355. Respectfully submitted, Reco end:. by: '+ Attii/ AAl Michael S. Fle6er J nathan Marshall City Manager/ ommunity Services Director MSF:JM:BM:cfc Attach: NPDES Stormwater Implementation Agreement Santa Ana Region SAN BERNARDINO COUNTY STORM WATER PROGRAM !SO l STORMWATER PROGRAM A Consortium of Local Agencies 825 East Third Street San Bernardino,CA 92415.0835 (909)387-8112/FAX 387-8130 August 3, 2010 MemberAoeneies File: 10(NPD)-2.09 & 10(NPD)-2.17 City of'Big Bear Lake city ofChino SEE ATTACHED LIST OF CITY MANAGERS RE: NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM STORMWATER City of Chino Hills PERMIT IMPLEMENTATION AGREEMENT, SANTA ANA REGION NPDES NO. CAS618036, ORDER NO. R8-2010-0036 City of Colton The Stormwater Program has updated the Implementation Agreement (IA), including City of Fontana the areawide cost-share formula. The revised IA is attached to this letter, and was sent to the NPDES Coordinators electronically on July 13, 2010. City of Grand Terrace The Permittees' Fiscal Subcommittee began reviewing and revising the IA in late Cif of-Highland 2005, due to a need to clarify Permittee responsibilities and evaluate whether the cost-share formula, developed in 1992, provided an equitable distribution of costs for CityofLorna Linda the work done by the Areawide Program on behalf of all the Permittees. City ofMontslair The Fiscal Subcommittee was assisted by the professional services team of CDM and Risk Sciences. A series of meetings were conducted during 2006 to develop a Cup of Ontario new IA and cost share formula. On February 21, 2007, the Fiscal Subcommittee recommended a new cost-share formula based on three different program aspects City of (base, population, area). The base portion is applied equally to all Permittees, the Rancho Cucamonga population portion applies more heavily to program elements, such as public Citj,ofRedlands education and outreach, where greater numbers of residents benefit, and the area portion applies more heavily to program elements, such as monitoring, where more City of Rialto program cost is needed for larger areas. This cost-share formula was approved by a majority of the Permittees, City of San Bernardino The complete revised IA draft was then circulated for review by County Counsel and City of tJp/and legal counsel for all the Permittees. The draft final IA (attached) was completed in June 2010, and includes the language that all the attorneys could accept. City of Yucaipa We request that you seek approval of the new IA within your respective jurisdictions, County of and provide us with signature pages, by the end of calendar year 2010 (December San Bernardino 31). We will then compile all signature pages and take the complete package to the County Board of Supervisors and the Flood Control Board of Directors in early 2011. San Bernardino County Flood Control District ini to., Regeleel Paper NPDES 2009-10 Budget Letter August 3, 2010 Page 2 of 2 We expect the new IA and cost share calculation method will go into effect for FY 2011/12. If you have any questions or need additional information, please contact Matt Yeager, Stormwater Program Manager, at (909) 387-8112, or Naresh Varma, Chief, Environmental Management Division, at(909) 387-8109. Very tr y yo rs, GRANVILLE M. "BO'! ' BOWMAN, P.E., P.L.S., Flood Control Engineer GMB:NPV:MAY:mb/IA Cover Letter 080310.doc Attachment cc: NPDES Permittees Gregory C. Devereaux, CAO Scott Runyan, Deputy County Counsel Rhonda Neill, FC Planning Rudy Wibawa, Admin. Services Naresh Varma, EMD Matt Yeager, EMD Dan Ilkay, EMD Martha Morgan, EMD ARI Reading File 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 DISVRIC1), and the Cities of Big Bear Lake,Chino,Chino Hills, Colton,Fontana,Grand Terrace, 9 Highland, Loma Linda, Montclair, Ontario, Rancho Cucamonga, Redlands, Rialto, San 10 Bernardino, Upland, and Yucaipa (herein called the CITIES) establishes the responsibilities of 11 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 (CWA) 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 21 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 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 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 June 81010 MSG Implmenlation Draft Final—clean doe 48 49 Whereas 50 The California State Water Resources Control Board (SWRCB) as designee of the EPA 51 has delegated authority to the Regional Water Quality Control Board - Santa Ana Region 52 (SARWQCB)for administration of the MS4 Permit program and issuance of MS4 Permits within 53 the boundaries of their Region;and 54 55 Whereas 56 The DISTRICT, COUNTY, and CITIES have been designated as joint permittees 57 (Permittees)by the SARWQCB for the MS4 Permit issued to the County of San Bernardino;and 58 59 Whereas 60 The DISTRICT has been designated as the Principal Permitee in the MS4 Permit;and 61 62 Whereas 63 The COUNTY and the CITIES have been designated as the Co-permittees in the MS4 64 Permit;and 65 66 Whereas 67 Cooperation between the CITIES, the COUNTY, and the DISTRICT to jointly file an 68 application for the MS4 Permit is in the best interest of the CITIES, the COUNTY, and the 69 DISTRICT; and 70 71 Whereas 72 The Permittees shall establish and maintain a Management Committee to coordinate 73 compliance with MS4 Permit requirements and implement a Stormwater Management Program 74 across all jurisdictions covered by this MS4 Permit;and 75 76 NOW THEREFORE,the parties hereto do mutually agree as follows: 77 78 I. Filing Status. The COUNTY, DISTRICT, and CITIES will jointly file the application for 79 an area-wide storm water permit. The COUNTY, the DISTRICT, and each individual 80 CITY will be a Permittee. 81 82 83 II. Management Committee. The DISTRICT, as Principal Permittee, and COUNTY and 84 CITIES, as Co-permittees, shall support and facilitate compliance with area-wide MS4 85 Permit requirements and implementation of the Stormwater Management Program 86 through the workings of the Management Committee. The responsibilities and structure 87 of this committee shall include: 88 89 90 91 A. The purpose of the Management Committee shall be to develop policies, 92 (including goals, needs, and priorities) budgets, and implementation 93 strategies and plans for the area-wide Stormwater Management Program 94 to ensure compliance with the MS4 Permit. The Management Committee June B 2010 MS4 Implmenlaeon Drell Final—clean don 2 95 shall evaluate implementation options and strategies and recommend 96 implementation actions to the DISTRICT. 97 98 B. Each Permittee shall designate in writing at least one authorized 99 representative and one alternate to participate on the Management 100 Committee. Management Committee designees and alternates shall be 101 authorized by their respective city council or governing board to cast 102 votes on behalf of their jurisdiction to determine Stormwater 103 Management Program budgets and all other program elements required 104 to implement the areawide Municipal Stormwater Management Plan 105 (MSWMP). 106 107 C. The Principal Permittee shall serve as the chairperson for the 108 Management Committee. 109 110 D. The Management Committee shall meet at least once each month, except 11 during the month of December. 112 113 E. Ten (10) authorized representatives present in person at a scheduled 114 meeting constitute a quorum for the transaction of business of the 115 Management Committee. If a quorum is not present at a scheduled 116 Management Committee meeting, less than a quorum may adjourn the 117 meeting. For all Management Committee actions other than approval of 118 the budget as set forth in Section VII.C.1. of this AGREEMENT, a 119 majority vote of the quorum shall decide any question brought before the 120 Management Committee for decision. 121 122 F. The Management Committee shall support Stormwater Management 123 Program implementation by providing guidance to the Principal Permittee 124 with respect to stormwater program administration and approving 125 elements of the area-wide MSWMP. 126 127 G. The Management Committee may establish subcommittees to support 128 the work of the Management Committee. Subcommittees shall include 129 interested members of the Management Committee, and/or other 130 Permittee staff with necessary expertise. Subcommittees may develop 131 recommendations for Management Committee consideration. Such 132 recommendations require majority approval by members of the 133 subcommittee on a one vote per Permittee basis. 134 135 H. Approval of Management Committee decisions will require a majority 136 vote of the authorized representatives or alternates in attendance, on a one 137 vote per Permittee basis. In the event that the Management Committee 138 does not approve a subcommittee recommendation, the item will be 139 directed back to the subcommittee for reconsideration. June 82010 MS41mplmentation Draft Final—clean doe 3 140 I. All parties to this AGREEMENT achieve cost savings by working 141 collectively to implement the areawide stormwater program. To 142 maximize these cost savings, the Permittees agree that: 143 144 1. Each authorized representative shall actively participate in at least 145 9 of 11 monthly Management Committee meetings; 146 147 2. Each Permittee shall actively participate in at least one 148 subcommittee, either through the authorized representative or 149 other authorized designee. Participation will be defined as 150 attendance at fifty percent (50%) or more of subcommittee 151 meetings held in a given fiscal year. 152 153 154 III. Principal Permittee Responsibilities. 155 156 The DISTRICT, acting through its Board of Directors, is the Stormwater Program Administrator 157 for purposes of this AGREEMENT. The District shall have administrative responsibilities and 158 shall be reimbursed for its rime expended on behalf of the Stormwater Program. These rates 159 include actual hourly rate plus overhead. Materials are to be reimbursed at direct cost. 160 161 The DIS 1 RICT,while acting as administrator,will strive to implement the policies,budget,and 162 required program elements according to the recommendations of the Management Committee. 163 In turn,the Management Committee will work in good faith with the DISTRICT to make 164 reasonable policy,budget and required program element recommendations to the 165 DISTRICT. The Parties recognize and acknowledge,however, that the DISTRICT',as governed 166 by the San Bernardino County Board of Directors,retains final authority regarding the nature 167 and manner in which the recommendations of the Management Committee shall be executed. 168 169 In the event that the DISTRICT proposes to implement an approach different than the one 170 recommended by the Management Committee, the DISTRICI's proposed alternative action 171 shall be communicated to the Management Committee at the next available meeting of the 172 Management Committee. If the Management Committee approves the alternative action,then 173 the cost sharing provisions of this AGREEMENT shall govern the allocation of any costs 174 associated with that alternative action. If, in good faith, the Management Committee does not 175 approve the alternative action,the DISTRICT may implement the alternative action,but the 176 DISTRIC 1 shall be solely responsible for paying the increased costs, if any,resulting from the 177 alternative action. This increased cost shall be measured by the difference between the cost of 178 the alternative action and the estimated cost of the action as reasonably recommended by the 179 Management Committee. 180 181 If the DISTRICT'S proposed alternative implementation action involves art increase in program 182 costs, that alternative implementation action shall not be adopted until such time as each 183 authorized representative of the Management Committee has had 45 days to relay that 184 alternative implementation action to its various governing bodies for approval.CITIES and 185 COUNTY shall have no responsibility for the incremental increase in cost associated with an June 8 2010 MS4 Implmentalion Dalt Final—clenn.doc 4 186 alternative action that is not approved by the Management Committee after 45 days has passed 187 with the governing bodies failing to approve the alternative implementation action. 188 189 190 191 The DISTRICT will act as the contracting party, on behalf of the Co-permittees for Stormwater 192 Management Program contracts and agreements with all consultants, contractors, vendors or 193 other entities as recommended by the Management Committee. 194 195 The DISTRICT, if recommended by the Management Committee, may act on behalf of the Co- 196 permittees as applicant in preparing and submitting grant proposals, and may act as 197 administrator for any awarded grant funds. 198 199 The DISTRICT, if recommended by the Management Committee, will act on behalf of the 200 Stormwater Program as the contracting party and signatory in joint agreements with other 201 municipal stormwater programs and stakeholders for regional benefits and cooperation. 202 203 As the Principal Permittee under the MS4 Permit, the DISTRICT shall coordinate all area-wide 204 MS4 Permit activities and manage the Stormwater Management Program by: 205 206 A. Conducting chemical, biological and bacteriological water quality 207 monitoring on behalf of the areawide program as required by the MS4 208 Permit. 209 210 B. Implementing management programs, monitoring programs, and related 211 plans as required by the MS4 Permit. 212 213 C. Preparing and submitting to the Executive Officer (SARWQCB) unified 214 reports,plans, and programs necessary to comply with the MS4 Permit. 215 216 D. Coordinating and conducting Management Committee meetings as 217 specified in the MSWMP. 218 219 E. Taking the lead role in initiating and developing area-wide programs and 220 activities necessary to comply with the MS4 Permit. 221 222 F. Participating, as needed, in any subcommittees formed to facilitate MS4 223 Permit requirements. 224 225 G. Providing technical and administrative support and inform the Co- 226 permittees of the progress of other pertinent municipal programs, pilot 227 projects, research studies, and other information to facilitate 228 implementation of Co-permittees' stormwater program. 229 June 8 2010 MS4 Implmentatlon Draft Final—clean dot 5 230 H. Coordinating the implementation of area-wide Stormwater Management 231 Program activities such as a monitoring program, public education, and 232 pollution prevention. 233 234 I. Gathering and disseminating information on the progress of statewide 235 municipal stormwater programs and evaluate the information for 236 potential use in the execution of the MS4 Permit. 237 238 J. Monitoring the implementation of the plans and programs required by 239 the MS4 Permit and determine their effectiveness in attaining water 240 quality standards. 241 242 K. Coordinating with SARWQCB activities pertaining to implementation of 243 the MS4 Permit,including the submittal of all required reports, plans, and 244 programs. 245 246 L. Soliciting and coordinating public input for any major proposed 247 stormwater management programs and implementation plans. 248 249 M. Developing and implementing mechanisms, performance standards, etc., 250 to promote consistent implementation of Best Management Practices 251 among the Permittees. 252 253 N. Cooperating in watershed management programs and regional and/or 254 statewide monitoring programs. 255 256 IV. Co-vermittee Responsibilities. The Co-permittees shall support the Principal Permittee 257 by: 258 259 A. Preparing and submitting to the Principal Permittee in a timely manner 260 all required information necessary to comply with permit reporting 261 requirements. Timely completion of Permittee annual report 262 information is considered meeting the deadline if received on or before 263 September 15th of each reporting year. 264 B. Notifying the Principal Permittee immediately,in writing,of any 265 changes to the designated representative to the Management 266 Committee. 267 C. Reviewing and commenting on all plans, strategies,management 268 programs,and monitoring programs, as developed by the Principal 269 Permittee or a subcommittee of the Management Committee. 270 D. Conducting and/or coordinating with the Principal Permittee on any 271 surveys or characterizations needed to identify pollutant sources from 272 specific drainage areas. 273 June B 2010 MS1 Implmenlallon Draft Final-clean.do< 6 274 V. Compliance Responsibilities. The DISTRICT, COUNTY and CITIES are individually 275 responsible for implementing all MS4 Permit requirements within their respective 276 jurisdictions. The Management Committee does not assume any responsibility for 277 implementing the Stormwater Management Programs for the Principal Peruuttee or any 278 other Permittee or for ensuring that the Principal Permittee or the Co-permittees 279 implement programs consistent with the recommendations of the Management 280 Committee. 281 282 VI. Indemnification and Insurance. Each party shall indemnify, defend, and hold harmless 283 the other parties to this AGREEMENT from and against any and all liability and expense 284 arising from any act or omission of the indemnifying party, its authorized officers, 285 employees, agents, and volunteers in connection with the performance of this 286 AGREEMENT, including, but not limited to reasonable defense costs, reasonable legal 287 fees, claims, actions, damages, liability, and causes of action for damages of any nature 288 whatsoever; provided, however, that no party shall indemnify another party for that 289 party's own negligence or willful misconduct. 290 In the event a party,or parties,to this AGREEMENT is/are found to be comparatively at 291 fault for any claim,action,loss or damage which results from their respective obligations 292 under this AGREEMENT, the party,or parties shall indemnify the other party/parties to 293 the extent of its/their comparative fault. Furthermore, if a party attempts to seek 294 recovery from the other for Workers' Compensation benefits paid to an employee, the 295 parties agree that any alleged negligence of the employee shall not be construed against 296 the employer of that employee. 297 The parties to this AGREEMENT are authorized self-insured public entities for purposes 298 of Professional Liability, Automobile Liability, General Liability, and Workers' 299 Compensation and warrant that through their programs of self-insurance, they have 300 adequate coverage or resources to protect against liabilities arising out of their 301 performance under this Agreement. 302 303 304 305 306 VII. Program Costs. The responsibilities for payment of all shared costs of equipment, 307 services, contracted analytical services, and the cost of implementing the MS4 Permit, 308 shall be distributed among the DISTRICT,COUNTY, and CITIES as follows: 309 310 A. The DISTRICT shall contribute 5% of the annual Program Costs; the other 311 Permittees shall be responsible for the remaining 95% of the Program 312 Costs. 313 314 B. The annual budget shall separate program costs into four Program Areas: 315 316 1. Monitoring, which shall include any water quality and 317 hydrographic monitoring and laboratory analyses. 318 319 2. Public Education,which shall include all public outreach programs. 320 June 8 2010 MS9 Implmenlalion Draft Final-clean doc 7 321 3. Program Management & Regulaton] Activities, which includes 322 administrative, reporting and regulatory activities. 323 324 4. Training, which addresses arty training conducted to implement 325 the stormwater management program. 326 327 C. The Principal Permittee shall prepare and implement an annual operating 328 budget with the participation of the Permittees. The budget year shall 329 coincide with the fiscal year of the DIS 1 KICT,July 1 -June 30. 330 331 1. The Principal Permittee will forward the annual operating budget 332 for the forthcoming year to the Co-permittees for review and 333 approval. The review period shall be from the first business day of 334 November to the first business day of December of each year. 335 During the review period, the Co-permittees may provide written 336 comments on the budget to the Principal Permittee. The Fiscal 337 Subcommittee will review the comments on the budget and 338 endorse a draft budget for Management Committee approval. The 339 Management Committee will consider the draft budget for 340 approval at the January meeting. An affirmative response from a 341 majority of the total number of authorized representatives or 342 authorized alternates is required for approval. 343 344 D. For Fiscal Year 2010/11, the Permittees cost share shall be as follows: PERMITTEE PERCENTAGE SHARE Big Bear Lake 1.98 Chino 4.59 Chino Hills 5.08 Colton 3.48 Fontana 7.45 Grand Terrace 0.80 Highland 2.21 Loma Linda 1.36 Montclair 2.19 Ontario 11.99 Rancho Cucamonga 9.81 Redlands 4.84 Rialto 5.58 San Bernardino 12.13 Upland 5.05 June 8 2010 M54 tmpimentation Draft Final—clean.doe 8 PERMITTEE PERCENTAGE SHARE Yucaipa 3.42 County 13.04 District 5.00 TOTAL 100 345 346 E. For Fiscal Year 2011/12, and all subsequent fiscal years the Permittees 347 cost share shall be determined annually according to the methodology 348 provided in Appendix A. 349 F. For Fiscal Year 2011/12, and all subsequent fiscal years, the Permittees 350 annual cost share shall be calculated by November 1 of each year and 351 shall be included in the annual budget proposal. 352 G. The DISTRICT shall invoice each CITY and the COUNTY for its annual 353 deposit after July 1, the start of the fiscal year. Each CITY and the 354 COUNTY shall pay the deposit within 30 days of the date of the invoice. 355 Each CITY's and the COUNTY's deposit shall be based on their prorated 356 share of the approved annual budget, reduced for any surplus identified 357 in the prior fiscal year-end accounting. 358 H. The DISTRICT shall make reasonable efforts to inform the Management 359 Committee during the fiscal year of potential exceedances of the approved 360 budget that may require the Parties to increase the deposits. If at any time 361 during a fiscal year the program costs exceed the sum of the deposits, the 362 DISTRICT shall submit invoices to the CITIES and the COUNTY to 363 recover the deficit. The share for each CITY and the COUNTY shall be 364 prorated according to the formula above (see Paragraphs D and E of this 365 Section). Each CITY and COUNTY shall pay the invoice within 30 days of 366 the billing date. 367 368 I. The DISTRICT shall prepare a fiscal year end accounting at the end of 369 each fiscal year and distribute copies to the Permittees for their review by 370 October 31 of that year. Permittees shall have 30 calendar days from the 371 date of their receipt of the fiscal year end accounting to dispute in writing 372 or concur with the findings. If the fiscal year end accounting results in 373 costs exceeding the sum of the deposits (including interest earnings), the 374 DISTRICT shall invoice each CITY and the COUNTY for its prorated 375 share of the excess cost.Each CITY and the COUNTY shall pay the billing 376 within 30 days of the date of the invoice. If the fiscal year end accounting 377 results in the sum of the deposits (including interest earnings) exceeding June 0 2010 M54 Implmenlalion Draft Final-clean doe 9 378 costs, the excess deposits will carry forward to reduce the billings for the 379 following year. 380 381 J. Upon termination of the program, a final accounting shall be performed 382 by the DISTRICT. If costs exceed the sum of the deposits (including 383 interest earnings), the DISTRICT shall invoice each CITY and the 384 COUNTY for its prorated share of the excess. Each CITY and the 385 COUNTY shall pay the invoice within 30 days of the date of the invoice. 386 If the sum of the deposits (including interest earnings) exceeds the costs, 387 the DISTRICT shall reimburse to each CITY and the COUNTY its 388 prorated share of the excess (including any interest earnings remaining), 389 within 30 days of the final accounting. 390 391 K. Each CITY and the COUNTY shall bear the financial responsibility for 392 implementing the program within its jurisdictional boundaries, including 393 any applicable MS4 permit fees,as outlined in Section V. 394 395 L. The annual administrative costs (includes actual hourly rate plus 396 overhead) incurred by the DISTRICT shall be included in the budget for 397 the Areawide Program Costs and paid according to this Section, Section 398 III and Appendix A. 399 400 M. The financial responsibility for this AGREEMENT will be effective on the 401 date this AGREEMENT takes effect. 402 403 VIII. Term of the AGREEMENT. The term of the AGREEMENT coincides with the term of 404 the current MS4 Permit (Order No. R8-2010-0036). The renewal process of the 405 Implementation Agreement shall begin at the same time as the initiation of the Report of 406 Waste Discharge renewal and shall be completed within 6 months from the SARWQCB 407 approval date of the MS4 Permit that follows Order No. R8-2010-0036. This 408 AGREEMENT shall therefore take effect on the date it is approved by all parties and 409 shall terminate 6 months after SARWQCB approval of the MS4 Permit that follows 410 Order No. R8-2010-0036. 411 IX. Additional Parties. Any city or other entity which wishes to be a Permittee on the San 412 Bernardino County MS4 Permit that was issued by SARWQCB shall agree to the 413 provisions in this funding agreement and shall sign this AGREEMENT prior to being 414 included in the permit. The date of initiation, for determining participant costs for any 415 new Permittee shall be the date of inclusion in the San Bernardino County MS4 Permit 416 issued by SARWQCB. The cost for adding any additional Permittee to the program, 417 including additional permit and processing fees, shall be paid by the added Permittee. 418 Monies, if any, to be reimbursed to the existing Permittees shall be credited to their 419 respective annual program operating fees for the following budget year. 420 421 X. Withdrawal from the AGREEMENT. A Permittee may withdraw from this 422 AGREEMENT at the end of any fiscal year with written notice being received by the 423 DISTRICT 90 days prior to the end of the fiscal year. A withdrawing Permittee will not 424 be allowed refunds for tasks, projects or studies already underway in which funds have Juno 8 20101A541mplmenlalion Draft Dnal-,clean,doc 10 425 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 XI. 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 responsibilities shall he 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.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 M54 Implmentation Oiaft Flnal—cleen.doc 11 472 473 XVIII. Consent to Breach not Waiver. No term or provision hereof shall be deemed waived 474 and no breach excused, unless such waiver or consent shall be in writing and signed by 475 any Permittee to have waived or consented. Any consent by any Permittee to, or waiver 476 of, a breach by the other whether expressed or implied, shall not constitute a consent to, 477 waiver of,or excuse for any other different or subsequent breach. 478 479 XIX. American Recovery and Reinvestment Act of 2009 ("ARRA"l. DISTRICT, while acting 480 as the Stormwater Program Administrator, shall include in any contract funded in 481 whole,or in part,by ARRA provisions that substantially conform to the following: 482 483 A. Use of ARRA Funds and Reauirements. This Contract may be funded in 484 whole or in part with funds provided by the American Recovery and 485 Reinvestment Act of 2009 ("ARRA"), signed into law on February 17, 486 2009. Section 1605 of ARRA prohibits the use of recovery funds for a 487 project for the construction, alteration, maintenance or repair of a public 488 building or public work (both as defined in 2 CFR 176.140) unless all of 489 the iron, steel and manufactured goods (as defined in 2 CFR 176.140) 490 used in the project are produced in the United States. A waiver is 491 available under three limited circumstances: (i) Iron, steel or relevant 492 manufactured goods are not produced in the United States in sufficient 493 and reasonable quantities and of a satisfactory quality; (ii) Inclusion of 494 iron, steel or manufactured goods produced in the United States will 495 increase the cost of the overall project by more than 25 percent; or (iii) 496 Applying the domestic preference would be inconsistent with the public 497 interest. This is referred to as the "Buy American" requirement. Request 498 for a waiver must be made to the DISTRICT for an appropriate 499 determination. 500 Section 1606 of ARRA requires that laborers and mechanics employed by 501 contractors and subcontractors on projects funded directly by or assisted 502 in whole or in part by and through the Federal Government pursuant to 503 ARRA shall be paid wages at rates not less than those prevailing on 504 projects of a character similar in the locality as determined by the 505 Secretary of Labor in accordance with the Davis-Bacon Act (40 U.S.C. 31), 506 This is referred to as the"wage rate" requirement. 507 508 The above described provisions constitute notice under ARRA of the Buy 509 American and wage rate requirements. Contractor must contact the 510 DISTRICT contact if it has any questions regarding the applicability or 511 implementation of the ARRA Buy American and wage rate requirements. 512 Contractor will also be required to provide detailed information 513 regarding compliance with the Buy American requirements, expenditure 514 of funds and wages paid to employees so that the DISTRICT may fulfill 515 any reporting requirements it has under ARRA. The information may be 516 required as frequently as monthly or quarterly. Contractor agrees to fully 517 cooperate in providing information or documents as requested by the 518 DISTRICT pursuant to this provision. Failure to do so will be deemed a June 82010 MS4 Implmemation Draft Flnal--clean doc 12 519 default and may result in the withholding of payments and termination 520 of this Contract. 521 Contractor may also be required to register in the Central Contractor 522 Registration(CCR) database at httu://www.ccr.gov and may be required 523 to have its subcontractors also register in the same database. Contractor 524 must contact the DISTRICT with any questions regarding registration 525 requirements. 526 527 B. Schedule of Expenditure of Federal Awards. In addition to the 528 requirements described in "Use of ARRA Funds and Requirements," 529 proper accounting and reporting of ARRA expenditures in single audits 530 is required. Contractor agrees to separately identify the expenditures for 531 each grant award funded under ARRA on the Schedule of Expenditures 532 of Federal Awards (SEFA) and the Data Collection Form (SF-SAC) 533 required by the Office of Management and Budget Circular A-133, 534 "Audits of States, Local Governments, and Nonprofit Organizations." 535 This identification on the SEFA and SF-SAC shall include the Federal 536 award number, the Catalog of Federal Domestic Assistance (CFDA) 537 number, and amount such that separate accountability and disclosure is 538 provided for ARRA funds by Federal award number consistent with the 539 recipient reports required by ARRA Section 1512(c). 540 In addition,Contractor agrees to separately identify to each subcontractor 541 and document at the time of sub-contract and at the time of disbursement 542 of funds, the Federal award number, any special CFDA number assigned 543 for ARRA purposes, and amount of ARRA funds. 544 Contractor may be required to provide detailed information regarding 545 expenditures so that the DISTRICT may fulfill any reporting 546 requirements under ARRA described in this section. The information 547 may be required as frequently as monthly or quarterly. Contractor agrees 548 to fully cooperate in providing information or documents as requested by 549 the DISTRICT pursuant to this provision. Failure to do so will be deemed 550 a default and may result in the withholding of payments and termination 551 of this Contract. 552 553 554 XX. Applicability of Prior Agreements. This document constitutes the entire AGREEMENT 555 between the Permittees with respect to the subject matter; all prior agreements, 556 representation,statements,negotiations, and undertakings are superseded hereby. 557 558 XXI. Execution of the AGREEMENT. This AGREEMENT may be executed in counterpart 559 and the signed counterparts shall constitute a single instrument. 560 561 XXII. No Separate Entity. This AGREEMENT established a framework for PERMITTEE 562 cooperation on storm water issues. Nothing in this AGREEMENT shall be construed to 563 create an entity separate from the local agencies that join in this cooperative effort. 564 June 6 2010 M84 Implmenlallon Draft Finabilean.doc 13 565 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 Implmentatlon Draft Final--clean duo 14 570 APPENDIX A 571 572 A. The DISTRICT shall pay five percent(5%) of the total annual cost,and the COUNTY and 573 the remaining Co-permittees,collectively,shall pay the remaining ninety-five percent 574 (95%) of the total annual cost pursuant to the for Tula set forth in Paragraph C,below. 575 576 B. The Permittees total annual cost share is the sum of the individual cost-shares calculated 577 for each Program Cost Area. 578 579 C. The Permittees annual cost share for each Program Cost Area (PCA;) shall be calculated 580 using three cost factors: 581 582 1. Base, which represents the percentage of the program costs equally applied to all 583 Permittees. The base (B) fraction is calculated as follows: 584 585 B =1/N,where N=number of Permittees 586 587 2. Relative Population,which represents the percentage of the program costs based 588 on the relative population of each Permittee.Relative population (RP) of each 589 Permittee shall be calculated annually from annual population estimates issued 590 by the California Department of Finance (E-1 Table). 591 592 RP;= (P;/Ptotat),where 593 594 RP; = relative population of Permittee (i) 595 P; = population of Permittee (i) 596 Ptotai= total population for area covered by the area-wide permit 597 598 3. Relative Land Area,which represents the percentage of the program costs based 599 on the relative land area of each Permittee. Relative Land Area (RLA) shall be 600 calculated as follows: 601 602 a. The calculation of relative land area within each Permittee's jurisdiction 603 shall exclude land under tribal,state or federal jurisdiction, or any land 604 excluded by the State Water Resources Control Board. Any Permittee 605 seeking to exclude lands under this Section shall specifically request that 606 exclusion from the Principal Permittee by providing the request in 607 writing along with necessary documentation no later than October 1 to be 608 considered for inclusion in the next year's annual budget. The requesting 609 Permittee has the burden of proving entitlement to any exemption so 610 requested. 611 612 b. The method for calculating relative land area shall be determined from 613 the Assessor's Parcel data provided by the COUNTY Information 614 Services Department. 615 616 RLA,= (Li/Ltotal),where June 8 2010 MSI Implmenlalion Oiall Flnal-clean doe 15 617 618 RLA;=relative land area of Co-permittee (i) 619 L = land area of Co-permittee (i),less excluded lands 620 Ltotal= total land area under permit jurisdiction 621 622 D. The Permittee's cost share for each individual Program Cost Area is based on the 623 relative importance of the cost factors to the Program Cost Area as identified in budget 624 year-specific Tables 1,2 and 3.The cost share calculation for each Program Cost Area, 625 which will be phased in over a three year period as shown in Tables 1,2 and 3,is as 626 follows: 627 628 PC/kJ = [(B*X;* AB;) + (RP;*-Y;* AB;) + (RLA;*Z;*AB;)] 629 630 Where, 631 632 PCA;= Permittee's cost share for PCA; 633 AB;= Annual budget for PCA; 634 635 B= Base fraction for each Permittee 636 Xi= Percentage apportioned to the base for PCAi 637 638 RP; = Relative population of Permittee(;) 639 Y;= Percentage apportioned to relative population for PCAi 640 641 RLAi= Relative land area of the Permittee(;) 642 Z;= Percentage apportioned to relative land are for PCA; 643 644 E. The Permittee's total annual cost share shall be calculated by summing the cost shares 645 calculated for each individual Program Cost Area: 646 647 Permittee's annual cost share =PCAI + PCA2+ PCA3 + PCA4 648 Table 1.Budget Year[DATE) Percent of the Program Cost Area Apportioned to each Cost Iactor Program Cost Areas(PCAs) Base Relative Relative (xi) Population Land Area (Yi) (Zi) Monitoring(PCAs) 10% j 30% 60% Public Education(PCA2) 10% 80% 10% Program Management& 30% 50% 20% Regulatory Activities(PCA3) Training(PCA4) 30% ( 60% 10% June 8 2010 MS4 Implmentation Draft Flnal-clean.doc 16