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HomeMy WebLinkAboutStaff Report 175-05Program cost allocation formula be reexamined and potentially modified. At the February 17, 2005 meeting of the Program Management Committee, District staff presented an alternative amendment for consideration. After making m~nor revisions to the document, the Management Committee voted unanimously to accept the alternative amendment and to bring it to their governing bodies for approval. The alternative amendment provides for a one-year extension of the MOA and stipulates that the Program conduct an independent review to evaluate the MOA's cost allocation formula and the term, scope, and cost of the Program MOA no later than December 31, 2005. There is an ongoing need to continue the cooperative relationship between the agencies that make up the Program. The joint NPDES permit that allows the Program's member agencies to discharge their municipal storm water to local creeks is reviewed, modified as appropriate, and reissued by the Regional Water Quality Control Board (Board) every five years. The current permit is dueto expire in early 2006. The Program recently submitted an application for the next generation permit to the Board. In order to facilitate the inter-agency cooperation required during the reapplication process and to allow ongoing joint storm water pollution prevention . efforts to continue without interruption, the MOA must be renewed. The attached Amendment No. One to the MOA will extend the term of the ,agreement for a period of one year beyond its original termination date of March 10,2005. By the end of the calendar year, the Program will conduct an independent review of the Program cost allocation formula. During the review and subsequent negotiations, staffwill advocate for a formula under which Palo Alto's share of the Program cost is commensurate with its share of the burden of permit compliance and with the benefits the Program activities provide to Palo Altans. Any revision to the cost allocation formula will require another amendment to the MOA, which must be approved by the governing bodies of each of the Program participants. . RESOURCE IMPACT Approval of Amendment No. One to the MOA commits the City to continued participation in the Santa Clara Valley Urban Runoff Pollution Prevention Program until March 10, 2006. This includes payment of the City's proportionate share of Program costs, funding for and performance of the storm water pollution prevention activities contained in the City's Urban . Runoff Management Plan, and any other NPDES permit requirements. Staff will request continued funding for these activities as part of future budget approval processes. Since the Storm Drainage Fund does not have adequate revenues to cover its operating costs and requires a General Fund subsidy, any additional costs due to a revision of the Program; s cost allocation formula will essentially be paid by the General Fund As a result of the Program cost allocation formula review stipulated by the amendment, Palo Alto's share of Program costs may be adjusted. Any revision to the cost allocation formula is subject to the approval of Council and the governing bodies of each of the other Program participants. '1 POLICY IMPLICATIONS Extension of the. MOA is consistent with Comprehensive Plan Program N-29: Actively participate in programs such as the Santa Clara Valley Urban Runoff Pollution Prevention Program to improve the quality of storm water runoff. CMR:175:05 Page 2 of3 .1"·, SCVURPPP MEMORANDUM OF AGREEMENT Page 4 of 13 (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 MOA 10-28-99.doc JRG:MGD 10/19/99 , " t·, SCVURPPP MEMORANDUM OF AGREEMENT Page 6 of 13 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 Manage'!1ent Committee. 4.06 The Contracting/Fiscal Agent shall provide a copy of any contract executed on behalf ot'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 implementation; and MOA 10-28-99.doc JRG:MGD .10/19/99 .' SCVURPPP MEMORANDUM OF AGREEMENT Page 8 of 13 / / / 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. MOA 10-28-99.doc JRG:MGD 10/19/99 SCVURPPP MEMORANDUM OF AGREEMENT Page 10 of 13 CITY OF ______ _ Date: _________ _ By: __________ _ Name: --------Title: --------- CITY OF ------- Date: ---------- By: __________ _ Name: ---------Title: ---------- CITY OF ------- Date: __ ~~ _____ _ By: __________ _ Name: ------~~ Title: ------------ CITY OF ______ _ Date: ___________ _ By: _________ ~ Name: -------------Title: ----------- MOA 10-28-99.doc APPROVED AS TO FORM: By: ____________ _ Name: ----------Title: ________ _ APPROVED AS TO FORM: By: ____________ _ Name: _________ __ Title: ________ _ APPROVED AS TO FORM: 8y: __________ _ Name: ___________ __ Title: ________ _ APPROVED AS TO FORM: 8y: __________ --'-_ Name: ------------Title: ________ __ JRG:MGD 10/19/99 .) "