1999-173 - MOU to Implement Urban Runoff ProgramRESOLUTION 1999 -173
RESOLUTION OF THE TOWN COUNCIL
OF THE TOWN OF LOS GATOS
AUTHORIZING TOWN MANAGER
TO ENTER INTO A MEMORANDUM OF AGREEMENT FOR IMPLEMENTATION OF
URBAN RUNOFF PROGRAM UNDER THE MUNICIPAL STORMWATER
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM ( NPDES) PERMIT
WHEREAS, the U.S. Environmental Protection Agency, under amendments to the 1987
Federal Clean Water Act, imposed regulations that mandate local governments reduce to the
maximum extent practicable that amount of pollutants in storm water discharged from municipal
storm drain conveyance systems, and;
WHEREAS, under authority of California Porter - Cologne Water Quality Control Act, the
State Water Resources Control Board and its Regional Boards have been delegated the authority
to adopt NPDES permits and waste discharge requirements for municipal stormwater discharges,
and;
WHEREAS, the San Francisco Bay Regional Water Quality Control Board's Water
Quality Control Plan specifically requires that all municipalities in Santa Clara County that
discharge stormwater to San Francisco Bay and the Santa Clara Valley Water District (District)
have municipal stormwater NPDES permit coverage and;
WHEREAS, the San Francisco Bay Regional Water Quality Control Board adopted an
NPDES permit (CAS029718), Order No. 95 -180, on August 23,1995 for the municipalities in
Santa Clara County and the District, as described above, and;
WHEREAS, the Town of Los Gatos is a Co- permittee to the municipal stormwater
NPDES Permit issued as described above, and;
WHEREAS, the Town of Los Gatos has previously entered into an agreement to jointly
fund the cost of preparing an action plan to evaluate nonpoint source pollutants, monitor
identified pollutants and develop control measures to mitigate or reduce nonpoint source
pollution, and to be commonly referred to as the Santa Clara Valley Nonpoint Source Program
(Program), and;
WHEREAS, the adopted NPDES permit requires that the municipalities in Santa Clara
County and the District reapply for reissuance of their municipal stormwater NPDES permit by
December 21, 1999, and;
WHEREAS, the permit application and Memorandum of Agreement (Agreement)
represents a continuation of the storm water pollution prevention and control activities that are
currently being implemented and associated costs.
NOW THEREFORE, BE IT RESOLVED by the Council of Town of Los Gatos that:
1. The Town of Los Gatos hereby agrees to renew the Memorandum of Agreement and authorizes
the Town Manager to sign the Memorandum of Agreement for continued participation, in terns
of cost and administrative responsibilities under its municipal storm water NPDES permit; and
2. The Town of Los Gatos Clerk is hereby directed to forward a copy of the signed and executed
Agreement to the SCVURPPP's Manager.
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los
Gatos held on the 22nd day of November, 1999 by the following vote:
COUNCIL MEMBERS:
AYES: Randy Attaway, Jan Hutchins, Linda Lubeck, Joe Pirzynski,
Mayor Steven Blanton
NAYS: None
ABSENT: None
ABSTAIN: None
SIGNED:
MAYO OF THE TOWN OF LOS`GATOS
LOS GATOS, CALIFORNIA
ATTEST:
CLERK OF THE TOWN OF LO GATOS
LOS GATOS, CALIFORNIA
11 . l` tj
AGREEMENT
PROVIDING FOR IMPLEMENTATION OF
THE SANTA CLARA VALLEY URBAN RUNOFF
POLLUTION PREVENTION PROGRAM
THIS AGREEMENT, is made and entered into this day of
1999 by and between the SANTA CLARA VALLEY WATER DISTRICT
(DISTRICT), a local public agency of the State of California; COUNTY OF SANTA CLARA,
a political subdivision of the State of California; CITY OF CAMPBELL, a municipal
corporation of the State of California; CITY OF CUPERTINO, a municipal corporation of
the State of California; CITY OF LOS ALTOS, a municipal corporation of the State of
California; TOWN OF LOS ALTOS HILLS, a municipal corporation of the State of
California; TOWN OF LOS GATOS, a municipal corporation of the State of California;
CITY OF MILPITAS, a municipal corporation of the State of California; CITY OF MONTE
SERENO, a municipal corporation of the State of California; CITY OF MOUNTAIN VIEW, a
municipal corporation of the State of California; CITY OF PALO ALTO, a municipal
corporation of the State of California; CITY OF SAN JOSE, a municipal corporation of the
State of California; CITY OF SANTA CLARA, a municipal corporation of the State of
California; CITY OF SARATOGA, a municipal corporation of the State of California; and
CITY OF SUNNYVALE, a municipal corporation of the State of California.
All of the above - mentioned entities are hereinafter collectively referred to as "PARTIES" or
individually as 'PARTY."
RECITALS:
A. The 1986 Water Quality Control Plan for the San Francisco Bay (Basin Plan),
adopted by the California Regional Water Quality Control Board, San Francisco Bay
Region, in implementation of the Federal Clean Water Act, required that PARTIES
develop a program to control pollution from urban runoff, or nonpoint sources of
water pollution in the Santa Clara Valley.
B. In furtherance of their responsibilities pursuant to the Basin Plan, the PARTIES have
previously entered into a series of agreements to jointly fund the cost of preparing an
action plan to evaluate nonpoint source pollutants, monitor identified pollutants, and
develop control measures to mitigate or reduce nonpoint source pollution.
Collectively, the measures undertaken pursuant to the previous agreements and
anticipated to continue pursuant to this Agreement, were known as the Santa Clara
Valley Nonpoint Source Pollution Control Program and upon execution of this
agreement henceforth shall be known as the Santa Clara Valley Urban Runoff
Pollution Prevention Program (hereinafter called "Program ").
C. In 1987 Congress added Section 402 (p) to the Federal Clean Water Act (CWA) (33
U.S.C. Section 1342 (p)), which requires certain municipalities and industrial facilities
to obtain a National Pollutant Discharge Elimination System (NPDES) permit for the
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discharge of stormwater to navigable waters. NPDES permits are also required under
Section 402 (p) for any stormwater discharge which the Federal Environmental
Protection Agency (EPA) or a State has determined contributes to a violation of a
water quality standard or is a significant contributor of pollutants to surface waters.
D. Section 402 (p) further required EPA to promulgate regulations for initial NPDES
permit applications for stormwater discharges. The EPA promulgated such
regulations in November 1990.
E. The EPA has delegated authority to the California State Water Resources Control
Board ( SWRCB) to administer the NPDES permit process within California and, in
turn, the SWRCB has delegated authority to the California Regional Water Quality
Control Board - San Francisco Bay Region (RWQCB -SFBR) to administer the
NPDES permit process within its region.
F. Pursuant to Section 402 (p) of the CWA and EPA regulations, the RWQCB -SFBR
adopted the following orders further defining the program that the PARTIES are to
develop and implement:
1. Order No. 90 -094 (NPDES Permit No. CA0029718), adopted June 20,1990;
and
2. Order No 95 -180 (NPDES Permit No. CAS029718); adopted August 23, 1995.
G. In and for the mutual interest of the PARTIES, the PARTIES wish to continue the
Program by entering into this Agreement for the purpose of ensuring continued
participation, in terms of cost and administrative responsibilities.
H. DISTRICT is a local public agency of the State of California duly organized and
existing within the County of Santa Clara. The County of Santa Clara is a political
subdivision of the State of California. All other PARTIES are municipal corporations,
duly organized and existing under the laws of the State of California.
I. The RWQCB -SFBR is conducting a Watershed Management Initiative (WMI) in
Santa Clara County. The Program is required, as part of its NPDES permit, to
develop and implement a Watershed Management Measures Strategy. The Urban
Runoff Management Plan of the Program contains the Program's Watershed
Management Measures Strategy. This strategy, consistent with the NPDES permit,
coordinates Program activities with the WMI to develop and implement cost - effective
approaches to address specific urban runoff pollution problems. The Program,
through a continuous improvement process, annually reviews the strategy.
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NOW, THEREFORE, THE PARTIES HERETO FURTHER AGREE, AS FOLLOWS:
Section 1. Santa Clara Valley Urban Runoff Pollution Prevention Program
1.01 The Santa Clara Valley Nonpoint Source Pollution Control Program
( "Program ") is hereby continued as the Santa Clara Valley Urban Runoff Pollution
Prevention Program to fulfill the requirements of NPDES Permit No. CAS029718 as it
exists, may be modified, or may be reissued in the future (hereinafter referred to as
" NPDES Permit ").
1.02 The Program is a collective effort and implementation of area -wide activities,
designed to benefit all PARTIES.
Section 2. Management Committee
2.01 A Management Committee is hereby reconstituted to provide for overall
Program coordination, review, and budget oversight, with respect to the NPDES
Permit.
2.02 The Management Committee may as necessary adopt and revise Bylaws for
its governance.
2.03 The Management Committee is the official management and oversight body
of the Program. The Management Committee shall direct and guide the Program
and review and approve the Program Budget. The Management Committee shall
consider permit compliance, including benefit to a majority of the PARTIES, as a
primary objective in approving Program tasks and corresponding budgets.
2.04 The Management Committee may periodically re- evaluate and make
recommendations to the PARTIES concerning reallocation of the proportion of the
annual Program contribution that each PARTY shall pay.
2.05 The voting membership of the Management Committee shall consist of
one designated voting representative from each PARTY. An alternative
voting representative may be appointed by each PARTY. The RWQCB-
SFBR may appoint a non - voting representative and alternate to the
Management Committee.
2.06 A quorum of the Management Committee shall be achieved when at
least nine (9) voting representatives, including at least one (1) representative
from each of City of San Jose and Santa Clara Valley Water District, are
present at any Management Committee meeting.
2.07 Meetings of the Management Committee, including any closed sessions
with Program Legal Counsel, shall be conducted in accordance with the 'Brown Act"
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(Government Code Section 54950 et seq.) The individual parties have differing
opinions on whether the Brown Act legally should be interpreted as applying to
members of the Management Committee. In executing this Agreement, the parties
do not waive their right to take the position that the Brown Act legally does not
apply, but voluntarily agree to follow Brown Act procedures for Management
Committee meetings. Except for official meetings of the Management Committee,
nothing herein shall be interpreted to require meetings between staff members of
the individual Parties (including designated representatives of the Parties) to be
subject to the Brown Act, where the Brown Act would not otherwise apply. Each
party is individually responsible for ensuring that it complies with the Brown Act.
2.08 The affirmative vote of at least eight (8) voting members of the
Management Committee, which collectively contribute at least fifty percent (50 %) of
the area -wide Program costs (a "Majority Vote "), is necessary to approve any
measure brought before the Management Committee.
2.09 The Management Committee shall be responsible for selecting any
consultant(s) or contractor(s) who are to be paid from Program funds ( "Outside
Contractors "), using a process approved by the Contracting Agent, and for
reviewing and approving any contracts with Outside Contractors, including the
scope(s) of work, schedules of performance, use of subcontractors, and
compensation for such Outside Contractors.
2.10 The Management Committee shall select a PARTY or Outside Contractor
to act as Program Manager for the Program. The Program Manager shall be
responsible for Program management and administration, Permit management, and
technical program management all in accordance with the NPDES Permit, this
Agreement, Program Bylaws, and as directed by the Management Committee in the
best interest of the PARTIES as a whole and individually. The Program Manager
shall be paid, from Program funds in accordance with the adopted Program budget,
for providing the services described hereunder. The Program Manager shall not be
responsible for providing program management services related to individual
PARTIES permit programs, but may provide such services under separate contract
with any PARTY or PARTIES.
2.11 The Management Committee may select an attorney (Program
Attorney) or firm that is experienced with the Clean Water Act and Municipal
Stormwater NPDES Permits to provide legal advice to the Management
Committee on all matters involving administration of the Program's NPDES
permit and such other matters upon which the Management Committee may
seek legal advice or request legal representation. Program Legal Counsel
shall not be responsible for providing legal advice related to permit
compliance to individual PARTIES, but may provide such services under
separate contract with any PARTY or PARTIES. The Program Manager may
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assist in coordination of activities with the Program Attorney but shall not give
direction without prior authorization from the Management Committee.
2.12 The Management Committee shall establish timelines and budgets for
completion of Program tasks. The Management Committee shall rate the
performance of the Program, and in turn rate the performance of the Program
Manager, based upon the Program's ability to meet such approved timelines and
budgets.
2.13 The Management Committee, through its Bylaws, may establish
procedures for tracking, accounting for, and auditing the Program Fund.
Section 3. Program Budget
3.01 A collective budget for the Program (Program Budget) shall be based
upon a projection of two consecutive fiscal year cycles, however, the Budget shall
be adopted for only one fiscal year cycle. The Budget shall include a
Contingency /Reserve Fund which shall not exceed ten percent (10 %) of the
operating costs of the adopted Budget.
3.02 The PARTIES shall each pay a yearly assessment into a fund established
for Program operations for their assigned portion of the Program Budget. The
proportionate share of the Program Budget that each PARTY shall pay is shown in
the schedule marked Exhibit A hereto and incorporated by reference herein.
3.03 Except as provided in Section 6.03, the ending fund balance at the close
of each fiscal year shall be disbursed annually to the PARTIES, or credited to the
PARTIES' share of the next fiscal year's costs, in accordance with the PARTIES
defined participation rates, as requested by each PARTY.
Section 4. Contracting/ Fiscal Agent
4.01 DISTRICT shall serve as the initial Contracting /Fiscal Agent for the
Program.
4.02 DISTRICT may withdraw as the Contracting Fiscal Agent upon the
provision of ninety days (90) days written notice to the Management
Committee.
4.03 In the event that the Contracting /Fiscal Agent withdraws from the
Program or from providing Contracting /Fiscal Agent services to the Program,
another PARTY may serve as a successor Contracting /Fiscal Agent. Any
PARTY willing to serve as successor Contracting /Fiscal Agent may be
nominated by another PARTY. Selection of a Contracting /Fiscal Agent must
be by majority vote of the Management Committee.
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4.04 The Contracting /Fiscal Agent shall act in a reasonable amount of
time to execute contracts with Outside Contractors, including the Program
Manager, which have been requested and approved by the Management
Committee.
4.05 The Contracting /Fiscal Agent shall be the treasurer of Program
funds. The Contracting /Fiscal Agent, in accordance with generally accepted
accounting procedures, shall keep the Program funds segregated from any
other funds administered by the Contracting /Fiscal Agent; shall credit the
Program with appropriate interest income earned on Program funds in each
fiscal year; and shall not expend any funds except in accordance with the
annual budget approved by the Management Committee or as otherwise
directed by the Management Committee.
4.06 The Contracting /Fiscal Agent shall provide a copy of any contract
executed on behalf of the Program to any PARTY or person designated by
any PARTY or the Management Committee upon request. The governing
body of the Contracting /Fiscal Agent, at its discretion, may delegate authority
to execute agreements and contracts approved by the Management
Committee, to a designated employee. Notice of any such delegation of
authority shall be provided to the Management Committee.
4.07 The Contracting /Fiscal Agent may request, as part of the annual
Program Budget, reimbursement for reasonable and customary costs
incurred in providing the services described hereunder. Reimbursement to
the Contracting /Fiscal Agent shall be subject to Management Committee
review and approval as part of the Program Budget.
Section 5. Ancillary Rights and Duties of the Parties
5.01 In addition to the participation in the Management Committee, the
PARTIES accept and agree to perform the following duties:
1. Each will comply with the NPDES Permit conditions set forth in its
Community- Specific plan;
2. Each will participate in Management Committee meetings and other
required meetings of the PARTIES;
3. Each will implement its Community- Specific program;
4. Each will provide certain agreed upon reports to the Program for
purposes of reporting, on a joint basis, compliance with applicable
provisions of the NPDES Permit and the status of Program
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implementation; and
5. Each will individually address inter - agency issues, agreements or
other cooperative efforts.
5.02 This Agreement does not restrict the PARTIES from the ability to
individually (or collectively) request NPDES Permit modifications and /or initiate
NPDES Permit appeals for permit provisions to the extent that a provision affects an
individual party (or group of PARTIES); however, any such PARTY (or PARTIES)
shall make reasonable efforts to provide advance notice of their action to the other
PARTIES and allow them to comment upon or join in their action before proceeding.
Section 6. Term of Agreement
6.01 The term of this Agreement shall commence on the date the last duly
authorized representative of the PARTIES executes it.
6.02 This Agreement shall have a term of five (5) years.
6.03 Any PARTY may terminate its participation in this Agreement by giving
the Chair of the Management Committee at least thirty (30) day written notice. The
terminating PARTY will bear the full responsibility for its compliance with the
NPDES Permit commencing on the date it terminates its participation, including its
compliance with both Community- Specific and Program -wide responsibilities.
Unless the termination is scheduled to be effective at the close of the fiscal year in
which the notice is given, termination shall constitute forfeiture of all of the
terminating PARTY's share of the Program Budget, for the fiscal year in which the
termination occurred (both paid and obligated but unpaid amounts). In addition,
unless notice of termination is provided at least ninety (90) days prior to the date
established by the Management Committee for approval of the budget for the
succeeding fiscal year, termination shall constitute forfeiture of all of the terminating
PARTY's share of any unexpended, unencumbered funds remaining from all
previous fiscal years. The cost allocations for the remaining PARTIES' may be
recalculated for the following fiscal year by the PARTIES without the withdrawing
PARTY's participation.
Section 7. General Legal Provisions
7.01. This Agreement supersedes any prior agreement among all the PARTIES
regarding the Program, but does not supersede any other agreements between any
of the PARTIES.
7.02 This Agreement may be amended by unanimous written agreement of the
PARTIES. All PARTIES agree to bring any proposed amendment to this Agreement
to their Council or Board, as applicable, within three (3) months following
acceptance by the Management Committee.
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7.03 This Agreement may be executed and delivered in any number of copies
('counterpart') by the PARTIES, including by means of facsimile. When each
PARTY has signed and delivered at least one counterpart to the Program, each
counterpart shall be deemed an original and, taken together, shall constitute one
and the same Agreement, which shall be binding and effective as to the PARTIES
hereto.
7.04 No PARTY shall, by entering into this Agreement, participating in the
Management Committee, or agreeing to serve as Fiscal Agent, Contracting Agent,
Program Manager, and /or Legal Counsel, assume or be deemed to assume
responsibility for any other PARTY in complying with the requirements of the
NPDES Permit. This Agreement is intended solely for the convenience and benefit
of the PARTIES hereto and shall not be deemed to be for the benefit of any third
party and may not be enforced by any third party, including, but not limited to, the
EPA, the SWRCB, and the RWQCB -SFBR, or any person acting on their behalf or
in their stead.
7.05 In lieu of and notwithstanding the pro rata risk allocation which might
otherwise be imposed between the PARTIES pursuant to Government Code Section
895.6, the PARTIES agree that all losses or liabilities incurred by a PARTY shall not
be shared pro rata but instead the PARTIES agree that pursuant to the Government
Code Section 895.4, each of the PARTIES hereto shall fully defend, indemnify and
hold harmless each of the other PARTIES from any claim, expense or cost, damage
or liability imposed for injury (as defined by Government Code Section 810.8)
occurring by reason of the negligent acts of omissions or willful misconduct of the
indemnifying PARTY, its officers agents or employees, under or in connection with
or arising from any work, authority or jurisdictions delegated to such PARTY under
this Agreement, including but not limited to any non - compliance by a PARTY with its
obligations under the Program NPDES Permit. No PARTY, nor any officer, board
member, employee or agent thereof shall be responsible for any damage or liability
incurred by reason of the negligent acts or omissions or willful misconduct of the
other parties hereto, their officers, board members, employees or agents under or in
connection with or arising from any work, authority or jurisdictions delegated to such
PARTY under this Agreement, including but not limited to any non - compliance by a
PARTY with its obligations under the Program NPDES Permit.
7.06 In the event that suit shall be brought by either party to this
contract, the Parties agree that venue shall be exclusively vested in the state
courts of the County of Santa Clara, or where otherwise appropriate,
exclusively in the United States District Court, Northern District of California,
San Jose, California.
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IN WITNESS WHEREOF, the PARTIES hereto have executed this Agreement as of the
dates shown below.
SANTA CLARA VALLEY WATER DISTRICT, a body corporate and politic of the State of
California
Date: APPROVED AS TO FORM:
By:
Chair, Board of Directors
By:
General Manager
By:
General Counsel
ATTEST:
Date:
By:
COUNTY OF SANTA CLARA, a public entity of the State of California
Date: APPROVED AS TO FORM:
By:
Chair, Board of Supervisors
Date:
0
CITY OF
Name:
Title:
By:
Deputy County Counsel
ATTEST:
Date:
0
APPROVED AS TO FORM:
0
Name:
Title:
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CITY OF CAMPBELL
Date: APPROVED AS TO FORM:
By:
Name:
TOWN OF LOS GATOS
By:
Name:
Title:
Date:
LIM
CITY OF _MONTE SERENO
Name:
Title:
CITY OF SARATOGA
Date:
By:
Name:
MOAfinal
By:
Name:
APPROVED AS TO FORM:
By:
Name:
Title:
APPROVED AS TO FORM:
By:
Name:
Title:
APPROVED AS TO FORM:
By:
Name:
Title:
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EXHIBIT A
SANTA CLARA VALLEY URBAN RUNOFF POLLUTION PREVENTION PROGRAM
SCHEDULE OF COST - SHARING PROPORTIONS
Jurisdiction Pr000rtional Share
Campbell
1.88%
Cupertino
2.46%
Los Altos
1.59%
Los Altos Hills
0.43%
Los Gatos
1.74%
Milpitas
2.75%
Monte Sereno
0.14%
Mountain View
3.91%
Palo Alto
4.06%
Santa Clara
6.23%
Saratoga
1.59%
Sunnvvale
7.25%
Santa Clara County
5.94%
Subtotal 39.97%
San Jose 30.01%
District 30.02%
TOTAL 100.00%
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