HomeMy WebLinkAboutStaff Report 7255
City of Palo Alto (ID # 7255)
City Council Staff Report
Report Type: Consent Calendar Meeting Date: 9/19/2016
City of Palo Alto Page 1
Summary Title: Approval of Third Amendment to Santa Clara Valley Urban
Runoff Pollution Prevention Program MOA
Title: Approval of Third Amendment to the Agreement Providing for
Implementation of the Santa Clara Valley Urban Runoff Pollution Prevention
Program, Between Santa Clara County, Santa Clara Valley Water District, and
Multiple Santa Clara County Cities to Extend Its Term
From: City Manager
Lead Department: Public Works
Recommendation
Staff recommends that Council approve and authorize the City Manager to
execute the Third Amendment (Attachment A) to an Agreement Providing for
Implementation of the Santa Clara Valley Urban Runoff Pollution Prevention
Program (Attachment B), a multi-jurisdictional Agreement between Santa Clara
County, the Santa Clara Valley Water District, and multiple Santa Clara County
cities, to extend its term.
Background
The Santa Clara Valley Urban Pollution Prevention and Urban Runoff Program
(Program) was originally formed through a Memorandum of Agreement (MOA)
with other Santa Clara Valley-based local governments in the late 1980s, as a
means to assist the City of Palo Alto negotiate and comply with a federal Clean
Water Act National Pollutant Discharge Elimination System (NPDES) permit that
cities are required to have for storm water that flows to creeks, streams, and
ultimately, San Francisco Bay (CMR:255:90). Bay Area municipalities were
recently issued a new Municipal Regional Stormwater Permit in November 2015,
which became effective January 1, 2016. This new permit continues many of the
previous requirements and contains new requirements, including a requirement
to develop a green stormwater infrastructure plan. This permit is shared by 76
City of Palo Alto Page 2
permittees in the San Francisco Bay Area.
The Program’s allocation of costs to its member agencies is based upon a
combination of benefits received and stormwater runoff factors. The Program
allows Palo Alto to undertake a coordinated approach and leverage resources
with respect to its storm water permit. This approach has proven highly effective
in assisting Palo Alto in addressing its responsibilities, twice winning national
awards issued by the U.S. Environmental Protection Agency. Since its original
formation, the participating local governments, including Palo Alto, have twice
previously authorized a continuation of the Program without changing the original
terms (CMR:435:99 and CMR:146:06).
Discussion
Based on a recent vote of the Program’s Management Committee on August 18,
2016, on which the City participates, a third amendment of the MOA to extend
the Program on its original terms was unanimously approved for referral to each
governing body for execution. The extension will allow the Program to continue
to operate and serve the participating agencies throughout the current Clean
Water Act Permit’s term plus one additional fiscal year (providing Program
assistance until at least the end of 2021 and addressing the Permit’s next re-
issuance by the Regional Water Quality Control Board).
Timeline
All Program participants have been asked to obtain authorization and return an
appropriate signature on the amendment as soon as possible and prior to
Thanksgiving as the MOA will expire in December if no action is taken.
Resource Impact
Approval of the Third Amendment To Agreement Providing For Implementation
Of The Santa Clara Valley Urban Runoff Pollution Prevention Program commits
the City to continued participation in the Santa Clara Valley Urban Runoff
Pollution Prevention Program until one year beyond the termination date of the
current NPDES storm water discharge permit issued to the Program (current
permit is estimated to run through the year 2020). This includes payment of the
City’s proportionate share of Program costs (4.06%), funding for and performance
of the storm water pollution prevention activities and any other NPDES permit
requirements. Continued funding for these activities is available from the Storm
City of Palo Alto Page 3
Drainage Fund.
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.
Environmental Review
There is no environmental assessment required in conjunction with this report.
Implementation of the NPDES Program is exempt from the provisions of the
California Environmental Quality Act (CEQA) under Section 15308 of the CEQA
guidelines, as it assures the maintenance, restoration, enhancement, or
protection of the environment.
Attachments:
Attachment A: SAN FRANCISCO-FINAL SCVURPPP MOA Third Amendment (DOC)
Attachment B: MOA Appendices (PDF)
1
THIRD AMENDMENT TO AGREEMENT
PROVIDING FOR IMPLEMENTATION OF
THE SANTA CLARA VALLEY URBAN RUNOFF
POLLUTION PREVENTION PROGRAM
THIS THIRD AMENDMENT TO AGREEMENT PROVIDING FOR
IMPLEMENTATION OF THE SANTA CLARA VALLEY URBAN RUNOFF
POLLUTION PREVENTION PROGRAM (the “Amendment”) is entered into by and between the SANTA CLARA VALLEY WATER DISTRICT, a local public agency of the State of California (“District”); 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; CITY OF SUNNYVALE, a municipal corporation of the State
of California; and COUNTY OF SANTA CLARA, a political subdivision 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 Parties previously entered into that certain Agreement Providing For
Implementation of the Santa Clara Valley Urban Runoff Pollution Prevention Program (the “Agreement” or “MOA”) pursuant to which the Parties established certain terms and conditions relating to the implementation and oversight of the Santa Clara Valley Urban
Runoff Pollution Prevention Program (the “Program”), including a cost sharing
allocation, which was appended thereto as Exhibit A. A copy of the Agreement,
including Exhibit A, is attached hereto as Appendix 1. Unless otherwise set forth herein, all terms shall have the meaning set forth in the Agreement;
B. The Agreement originally provided for a five-year term, which, based on
its execution, was set to conclude on or about March 10, 2005. However, on or about
February 20, 2005, the Parties unanimously entered into a First Amendment to the
Agreement (attached hereto as Appendix 2), which extended the term of the Agreement
by one additional year;
C. The Parties thereafter unanimously entered into a Second Amendment to
the Agreement (attached hereto as Appendix 3), which extended the term of the amended
Attachment A
2
Agreement by “one fiscal year beyond the termination date of the (then) next NPDES
Permit issued to the Parties, including any administrative extension of the (then) next
NPDES Permit’s term which occurred pursuant to the NPDES regulations.” The next
NPDES permit applicable to the Parties (and others) was subsequently adopted the California Regional Water Quality Control Board, San Francisco Bay Region (“RWQCB SFBR”) on October 14, 2009 and was known as the Municipal Regional Permit (“MRP”)
because it covered numerous public agencies in the San Francisco Bay Region in addition
to the Parties;
D. The MRP was then administratively extended until a new NPDES Permit applicable to the Parties (and the other public entities in the San Francisco Bay Region) was adopted by the California Regional Water Quality Control Board, San Francisco Bay
Region, on November 19, 2015 (“MRP 2.0”). MRP 2.0 became effective on January 1,
2016 and, unless subject to an administrative extension, is scheduled to terminate on
December 31, 2020;
E. The Parties expect to utilize the Program to continue to represent their interests relative to MRP 2.0 (including with respect to an administrative appeal of its
adoption that is currently pending before the State Water Resources Control Board), to
help them effectuate certain aspects of compliance with MRP 2.0, and, beyond that, in
negotiating the terms of a further renewed NPDES Permit when MRP 2.0 nears the end of its anticipated five-year term and any administrative extension provided thereto;
F. The Parties also expect to continue to utilize the Program’s preferred
approach of achieving consensus to resolve issues and reach decisions, and to rely on the
Majority Vote mechanism set forth in Section 2.08 of the Agreement at the Management
Committee level only when consensus-based resolutions appear or become elusive;
G. The Parties now desire to update the amended Agreement and further extend the term of the MOA as set forth below;
H. Section 7.02 of the MOA provides that it may be amended by the
unanimous written agreement of the Parties and that all Parties agree to bring any
proposed amendments to their Council or Board, as applicable, within three (3) months following acceptance by the Management Committee; and
I. The Program’s Management Committee accepted this Amendment for
referral to the Parties’ Councils and/or Boards at its meeting on August 18, 2016.
NOW, THEREFORE, THE PARTIES HERETO FURTHER AGREE AS
FOLLOWS:
1. Recognition of Current Permit. Recital F of the Agreement, as previously amended, is hereby further amended by the addition of the following subsections:
6. Order No. R2-2009-0074 (the Municipal Regional Permit, NPDES
Permit CAS612008); adopted, October 14, 2009 and amended by the
RWQCB SFBR on November 28, 2011;
3
7. Order No. R2-2015-0049 (MRP 2.0, NPDES Permit CAS612008);
adopted by the RWQCB SFBR on November 19, 2015.
2. Extension of Term of Agreement. Sections 6.02 and 6.02.01 of the
Agreement, as previously amended, are hereby replaced as follows:
This Agreement shall have a term extending one fiscal year beyond the date of termination of MRP 2.0; such termination
date shall, however, be deemed to include any administrative
extension of MRP 2.0 which occurs or arises pursuant to the
NPDES regulations or any modification of the MRP 2.0 termination date that arises from an NPDES permitting action undertaken by the RWQCB SFBR or California State Water
Resources Control Board.
3. Superseding Effect. This Third Amendment of the Agreement shall
supplement the Second Amendment of the Agreement and supersede any conflicting provisions of the Second Amendment of the Agreement.
[remainder of page intentionally blank]
4
IN WITNESS WHEREOF, the Parties have executed this Third Amendment effective
as of the last date indicated below or December 19, 2016, whichever arises earlier.
Santa Clara Valley Water District: By: ____________________________________
Name: ____________________________________
Title: ____________________________________
Date: ____________________________________
County of Santa Clara: By: ____________________________________
Name: ____________________________________
Title: ____________________________________
Date: ____________________________________
City of ____________________: By: ____________________________________
Name: ____________________________________
Title: ____________________________________
Date: ____________________________________
Attachment B
sf-3677154
Appendix 1
Agreement Providing For Implementation
of the Santa Clara Valley Urban Runoff
Pollution Prevention Program
as fully executed as of March 10, 2000
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. ·
8. 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 (NP DES) permit for the
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SCVURPPP MEMORANDUM OF AGREEMENT Page 2of13
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.
0. 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 Voten), 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.
2.1 O 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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SCVURPPP MEMORANDUM OF AGREEMENT Page 5of13
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:
76075_4 MOA
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 NPOES Permit and the status of Program
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SCVURPPP MEMORANDUM OF AGREEMENT Page 7 of 13
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 NP DES 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
P ARTY'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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I I I
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 PA"'RTY 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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EXHIBIT A
SANTA CLARA VALLEY URBAN RUNOFF POLLUTION PREVENTION PROGRAM
SCHEDULE OF COST-SHARING PROPORTIONS
76075_4 MOA
Jurisdiction Proportional 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°~
Sunnyvale 7.25%
Santa Clara County 5.94%
Subtotal
San Jose
District
TOTAL
39.97%
30.01%
30.02%
100.00%
JRG:MGD 10/19/99
sf-3677154
Appendix 2
First Amendment to Agreement Providing For Implementation
of the Santa Clara Valley Urban Runoff
Pollution Prevention Program
as fully executed as of March 10, 2005
sf-3677154
Appendix 3
Second Amendment to Agreement Providing For Implementation
of the Santa Clara Valley Urban Runoff
Pollution Prevention Program
as fully executed as of March 10, 2006
SECOND AMENDMENT TO AGREEMENT
PROVIDING FOR IMPLEMENTATION OF
THE SANTA CLARA VALLEY URBAN RUNOFF
POLLUTION PREVENTION PROGRAM
THIS SECOND AMENDMENT TO AGREEMENT PROVIDING FOR
IMPLEMENTATION OF THE SANTA CLARA VALLEY URBAN RUNOFF
POLLUTION PREVENTION PROGRAM (the "Amendment") is entered into by and
between the SANTA CLARA VALLEY WATER DISTRICT, a local public agency of
the State of California ("District"); 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 SANT A CLARA, a municipal
corporation of the State of California; CITY OF SARA TOGA, a municipal corporation
of the State of California; CITY OF SUNNYVALE, a municipal corporation of the State
of California; and COUNTY OF SANTA CLARA, a political subdivision 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 Parties previously entered into that certain Agreement Providing For
Implementation of the Santa Clara Valley Urban Runoff Pollution Prevention Program
(the "Agreement" or "MOA'') pursuant to which the Parties established certain terms and
conditions relating to the implementation and oversight of the Santa Clara Valley Urban
Runoff Pollution Prevention Program (the "Program"), including a cost sharing
allocation, which was appended thereto as Exhibit A. A copy of the Agreement,
including Exhibit A, is attached hereto as Appendix 1. Unless otherwise set forth herein,
all terms shall have the meaning set forth in the Agreement;
B. The Agreement originally provided for a five year term, which, based on
its execution, was set to conclude on or about March 10, 2005. However, on or about
February 20, 2005, the Parties unanimously entered into a First Amendment to the
Agreement (attached hereto as Appendix 2), which extended the term of the Agreement
by one additional year and, during that year, directed the Program to undertake a
management and cost allocation review. The Program used an independent contractor to
conduct the management and cost allocation review, which was completed and submitted
to the Management Committee in November 2005;
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C. The Parties expect to utilize the Program to continue to represent their
interests in negotiating the terms of a renewed NPDES Permit, which may manifest itself
in a Municipal Regional Permit ("MRP"), in 2006, and to otherwise address a variety of
matters related to assisting the Parties in effectuating compliance with the Permit and/or
MRP after March 10, 2006;
D. The Parties also expect to continue to utilize the Program's preferred
approach of achieving consensus to resolve issues and reach decisions, and to rely on the
Majority Vote mechanism set forth in Section 2.08 of the Agreement at the Management
Committee level only when consensus-based resolutions appear or become elusive;
E. The Parties desire to update the Agreement and extend the term of the
MOA as set forth below;
F. Section 7.02 of the MOA provides that it may be amended by the
unanimous written agreement of the Parties and that all Parties agree to bring any
proposed amendments to their Council or Board, as applicable, within three (3) months
following acceptance by the Management Committee; and
G. The Program's Management Committee accepted this Amendment for
referral to the Parties' Councils and/or Boards at its meeting on December 15, 2005.
NOW, THEREFORE, THE PARTIES HERETO FURTHER AGREE AS
FOLLOWS:
1. Recognition of Current Permit. Recital F of the Agreement is hereby
amended by the following additional subsections:
3. Order No. 01-024 (re-issued NPDES Permit No. CAS029718); adopted
February 21, 2001;
4. Order No. 01-119 (Modification to re-issued NPDES Permit No.
CAS029718); adopted October 17, 2001;
5. Order No. R2-2005-0035 (Further Modification to re-issued NPDES
Permit No. CAS029718); adopted July 20, 2005.
2. Cost Sharing Allocation. Effective with fiscal year 2007, the following
footnote shall be deemed to have been added to "Exhibit A" of the MOA and to be shown
by means of an asterisk placed immediately following the Proportional Share of
"30.02%" shown for the District:
*One-third of the District's 30.02% contribution is expected to be from funding
derived by the District from Outcome 2 and Activity 2.5 of the voter-adopted
Clean Safe Creeks program; the remaining two-thirds of the District's
contribution is expected to be derived by the District from property tax revenues.
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3. Contracting/Fiscal Agent. Section 4.02 of the Agreement is hereby replaced
by the following:
In March 2005, the District notified the Management Committee that it
was withdrawing as the Contracting/Fiscal Agent within ninety (90) days;
the City of Sunnyvale thereafter agreed to serve as the Contracting/Fiscal
Agent and was nominated to do so by another Party and selected as the
Program's Contracting/Fiscal Agent by a majority vote of the
Management Committee. The City of Sunnyvale may withdraw as the
Contracting/Fiscal Agent upon the provision of ninety (90) days written
notice to the Management Committee.
4. Extension of Term of Agreement. Sections 6.02 and 6.02.01 of the
Agreement, as previously amended, are hereby replaced as follows:
This Agreement shall have a term extending one fiscal year
beyond the termination date of the next NPDES Permit issued to
the Parties by the RWQCB-SFBR; such termination date shall,
include any administrative extension of the next NPDES
Permit's term which occurs pursuant to the NPDES regulations.
5. Superseding Effect. This Second Amendment of the Agreement shall
supersede and replace the First Amendment of the Agreement.
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