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HomeMy WebLinkAbout2010-05-11; City Council; 20223; Amend MOU Municipal Storm Water Permit CopermitteeCITY OF CARLSBAD - AGENDA BILL AB#20.223 MTG. 5-| HO DEPT. PEM FIRST AMENDMENT TO THE MUNICIPAL STORM WATER PERMIT COPERMITTEE MEMORANDUM OF UNDERSTANDING DEPT. DIRECTOR CITY ATTORNEY I CITY MANAGER (^ RECOMMENDED ACTION: Adopt Resolution No. 2010-104 authorizing the Mayor to execute the First Amendment to the Memorandum of Understanding (MOU) between the City of Carlsbad and the Municipal Storm Water Copermittees (NPDES Order No. R9-2007-0001). ITEM EXPLANATION: On December 18, 2007, Council approved resolution 2007-325, authorizing the Mayor to execute the Memorandum of Understanding between the City of Carlsbad and the Municipal Storm Water Copermittees with respect to compliance with NPDES Order No. R9-2007-0001 (Permit). The co- permittees include all incorporated cities in San Diego County, the County of San Diego, the San Diego Unified Port District (Port) and the San Diego County Regional Airport Authority (Airport). This agreement established a management structure to ensure implementation of the Permit. The purpose of this Amendment No. 1 is threefold: • To clarify the process for rollover credit of excess funds paid under the MOU from one agreement year to the next. • To establish criteria for refunding of excess funds if appropriate. • To provide clarification on the reimbursement of expenses related to any co-permittee's work on behalf of another co-permittee. ENVIRONMENTAL IMPACT: The proposed approval of the Amendment to the Memorandum of Understanding does not qualify as a "project" under the California Environmental Quality Act (CEQA) per State CEQA Guidelines Section 15378 as it does not result in a direct or reasonable foreseeable indirect physical change in the environment. FISCAL IMPACT: There are adequate funds in the Storm Water Protection operating budget to fully fund the City's obligation under the Memorandum of Understanding. This amendment does not increase costs to the City, but does clarify the process for seeking reimbursement of expense. No additional budget needs are anticipated during the current fiscal year as a result of the adoption of the included resolution or the amendment. DEPARTMENT CONTACT: Elaine Lukey, 760-602-7582 Elaine.lukev@carlsbadca.qov FOR CITY CLERKS USE ONLY COUNCIL ACTION:APPROVED DENIED D CONTINUED D WITHDRAWN D AMENDED D CONTINUED TO DATE SPECIFIC D CONTINUED TO DATE UNKNOWN D RETURNED TO STAFF D OTHER - SEE MINUTES D Page 2 EXHIBITS: 1. Resolution No. 2010-104 authorizing the Mayor to execute First Amendment to the Memorandum of Understanding (MOU) between the City of Carlsbad and the Municipal Storm Water Copermittees which establishes the responsibilities of each party with respect to compliance with National Pollutant Discharge Elimination System (NPDES) Order No. R9- 2007-0001. 2. First Amendment to the Memorandum of Understanding between the City of Carlsbad and the Municipal Storm Water Copermittees. Note: pages 3-4 of the Amendment are signatory pages for other jurisdictions. 3. Edited version of the First Amendment to the Memorandum of Understanding between the City of Carlsbad and the Municipal Storm Water Copermittees, with new text underlined, lines 57- 70. 1 RESOLUTION NO. 2010-104 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF 3 CARLSBAD, CALIFORNIA, AUTHORIZING THE MAYOR TO EXECUTE THE FIRST AMENDMENT TO THE MEMORANDUM 4 OF UNDERSTANDING BETWEEN THE CITY OF CARLSBAD AND THE MUNICIPAL STORM WATER COPERMITTEES 5 (NPDES ORDER NO. R9-2007-0001). 6 WHEREAS, the County of San Diego (herein called County), the San Diego Unified Port 7 District (herein called Port), the San Diego County Regional Airport Authority (herein called the 8 Airport), and the incorporated cities of San Diego, Carlsbad, Chula Vista, Coronado, Escondido, 9 Imperial Beach, La Mesa, San Marcos, Del Mar, El Cajon, Encinitas, Lemon Grove, National City, 10 Oceanside, Poway, Santee, Solana Beach, and Vista (herein called Cities), collectively called 11 Copermittees, desire to enter into an Amendment to the Memorandum of Understanding (MOU) 12 that establishes the responsibilities of each party with respect to compliance with the National 1 O Pollutant Discharge Elimination System (NPDES) Storm Water permit regulations; and 14 WHEREAS, on Decmber 18, 2007, the City Council, through Resolution 2007-32515 authorized the Mayor to execute the Memorandum of Understanding between the City of Carlsbad16 and the Copermittees as required pursuant to NPDES Order R9-2007-0001 by the San Diego Regional Water Quality Control Board; and18 19 WHEREAS, the Copermittees, including the City of Carlsbad have determined that an 20 amendment to the agreement is in the best interest of all parties; and 21 WHEREAS, the amendment provides clarification to the parties of the MOU on the terms 22 and conditions for crediting excess funds from one agreement year to the next, and on the ability 23 to receive reimbursement for tasks performed by one copermittee for another copermittee under 24 the terms of the MOU; 25 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, 26 California, as follows: 27 1. That the above recitations are true and correct. 28 3 1 2. That in the best interest of cooperation between The City of Carlsbad and its 2 fellow Copermittees, the City Council of the City of Carlsbad hereby authorizes the Mayor to 3 execute Amendment No. 1 to the Memorandum of Understanding between the City of Carlsbad and the Municipal Storm Water Copermittees. 5 6 7 /// 8 /// 9 /// 10 /// 11 /// 12 /// 13 /// 14 '" III15 16 17 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 25 '" III 26 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 11th day of May, 2010, by the following vote to wit: AYES: Council Members Lewis, Kulchin, Hall, Packard and Blackburn. NOES: None. ABSENT: None. ATTEST: LOftRAI (SEAL) First Amendment to National Pollutant Discharge Elimination System San Diego Regional Stormwater Copermittees Memorandum of Understanding, Dated November 16, 2007 This First Amendment to National Pollutant Discharge Elimination System San Diego Regional Stormwater Copermittees Memorandum of Understanding (MOU), dated November 16, 2007, is entered into by the County of San Diego (County), the San Diego Unified Port District (Port), the San Diego County Regional Airport Authority (Airport), and the incorporated cities of Carlsbad, Chula Vista, Coronado, Del Mar, El Cajon, Encinitas, Escondido, Imperial Beach, La Mesa, Lemon Grove, National City, Oceanside, Poway, San Diego, Santee, San Marcos, Solana Beach, and Vista (Cities), collectively called Copermittees. RECITALS WHEREAS, the MOU sets forth procedures for the management of funds contributed by the Copermittees to fund programs implemented in order to facilitate compliance with San Diego Regional Water Quality Control Board Order No. R9-2007-0001 (Permit); and WHEREAS, the MOU at Section II.B.3 provides for the carry over of unused contributed funds from one fiscal year to another, but does not otherwise provide any direction regarding the refund of excess funds; and WHEREAS, Copermittees desire to amend Section II.B.3. of the MOU to authorize the refund of funds that would otherwise only be authorized to be carried over from one fiscal year to another as a credit. FIRST AMENDMENT NOW THEREFORE, the Copermittees amend the MOU as follows: 1. Section II.B.3 of the MOU entitled "Management and Payment of Funds" is hereby amended and restated to read as follows: a. For Regional General Programs, the Copermittees shall each pay a yearly assessment into a Regional General Program operations fund for their assigned portion of any Regional Shared Costs Budget approved pursuant to this MOU. The Regional General Program operations fund shall be managed by the Regional Principal Permittee, or any other Permittee on approval of the Copermittees. b. For Watershed General Programs, the Watershed Copermittees for each WMA shall each pay a yearly assessment into a Watershed General Program operations fund for their assigned portion of any Watershed Shared Costs Budget approved pursuant to this MOU. Each Watershed General Program operations fund shall be managed by the Watershed Lead Permittee, or any other Watershed Permittee on approval of the Watershed Copermittees. c. The Copermittee managing each General Program operations fund shall provide Budget Balance and Expenditure Status Reports quarterly and following the end of each fiscal year. This shall include a detailed accounting of all costs and expenses in accordance with the adopted Work Plan and Shared Costs Budget, including those incurred by Copermittees providing Working Body Support, contracting services, in-kind services, or other applicable costs. First Amendment to San Diego Regional Stormwater Copermittees: March 18, 2010 First Amendment to National Pollutant Discharge Elimination System San Diego Regional Stormwater Copermittees Memorandum of Understanding, Dated November 16, 2007 d. Each Copermittee shall pay invoices within 60 days of receipt from the Copermittee managing the applicable General Program operations fund. e. Funds collected and not expended in any fiscal year shall be credited to the Copermittees' share of the next fiscal year's costs in accordance with the Copermittees' defined shared costs. f. Copermittees providing Working Body Support, Contract Administration, in-kind services, or incurring other budgeted costs on behalf of other Copermittees shall provide documentation of those expenses as requested by the Copermittee managing the applicable General Program operations fund. They shall only receive credit for those expenses if a detailed accounting of all costs and expenses meeting the minimum standards agreed upon by the Copermittees has been provided. g. Differences in the approved actual cost of expenses from those budgeted shall be either credited or added as appropriate to the amount of the Copermittee's share. In the event that any Copermittees' share of the next fiscal year's costs is less than the amount to be credited, the difference shall be refunded to the Copermittee. This provision shall be retroactive to include credits from FY 2008-09. Refunds shall be provided to Copermittees no later than 90 days after final accounting. h. At its discretion, a Copermittee managing a General Program operations fund may, prior to the completion of a fiscal year, make payment to any Copermittee providing Working Body Support, Contract Administration, in-kind services, or incurring other budgeted expenditures on behalf of other Copermittees so long as all of the conditions of Section II. B.3.f above have been satisfied and there are sufficient funds available to make a payment without requiring additional contributions or jeopardizing program objectives. If for some reason excess payment is made, the Copermittee receiving the payment agrees to return the additional payment without any recourse against the managing Copermittee. 2. Effect of Amendment 2.1 This Amendment to National Pollutant Discharge Elimination System, San Diego Regional Stormwater Copermittees, Memorandum of Understanding shall be effective and binding on all parties hereto commencing upon the date the last party executes the First Amendment to MOU. 2.2 This First Amendment to MOU may be executed in counterparts and the signed counterparts shall constitute a single instrument. First Amendment to San Diego Regional Stormwater Copermittees: March 18, 2010 -2- EXHIBIT 2 NOTATION Pages 3-5 of the First Amendment to Municipal Storm Water Permit Copermittee MOU are purposely not attached as they are signatory pages for other agencies. First Amendment to National Pollutant Discharge Elimination System San Diego Regional Stormwater Copermittees Memorandum of Understanding, Dated November 16, 2007 1 This First Amendment to National Pollutant Discharge Elimination System San Diego Regional 2 Stormwater Copermittees Memorandum of Understanding (MOU), dated November 16, 2007, is 3 entered into by the County of San Diego (County), the San Diego Unified Port District (Port), the 4 San Diego County Regional Airport Authority (Airport), and the incorporated cities of Carlsbad, 5 Chula Vista, Del Mar, El Cajon, Encinitas, Escondido, Imperial Beach, La Mesa, Lemon Grove, 6 National City, Oceanside, Poway, San Diego, Santee, San Marcos, Santee, Solana Beach, and 7 Vista (Cities), collectively called Copermittees. 8 RECITALS 9 WHEREAS, the MOU sets forth procedures for the management of funds contributed by the 10 Copermittees to fund programs implemented in order to facilitate compliance with San Diego 11 Regional Water Quality Control Board Order No. R9-2007-0001 (Permit); and 12 13 WHEREAS, the MOU at Section II.B.3 provides for the carry over of unused contributed funds 14 from one fiscal year to another, but does not otherwise provide any direction regarding the refund 15 of excess funds; and 16 17 WHEREAS, Copermittees desire to amend Section II.B.3. of the MOU to authorize the refund of 18 funds that would otherwise only be authorized to be carried over from one fiscal year to another 19 as a credit. 20 FIRST AMENDMENT 21 NOW THEREFORE, the Copermittees amend the MOU as follows: 22 1. Section II.B.3 of the MOU entitled "Management and Payment of Funds" is 23 hereby amended and restated to read as follows (proposed changes are shown in underline only to 24 draw attention to the text to be added and are not intended to be underlined for any other reason): 25 a. For Regional General Programs, the Copermittees shall each pay a yearly assessment into a 26 Regional General Program operations fund for their assigned portion of any Regional Shared Draft Final: For Copermittee Legal Review - comments due -1- to County by Monday, March 6, 2010 )0 First Amendment to National Pollutant Discharge Elimination System San Diego Regional Stormwater Copermittees Memorandum of Understanding, Dated November 16, 2007 27 Costs Budget approved pursuant to this MOU. The Regional General Program operations fund 28 shall be managed by the Regional Principal Permittee, or any other Permittee on approval of the 29 Copermittees. 30 31 b. For Watershed General Programs, the Watershed Copermittees for each WMA shall each pay a 32 yearly assessment into a Watershed General Program operations fund for their assigned portion of 33 any Watershed Shared Costs Budget approved pursuant to this MOU. Each Watershed General 34 Program operations fund shall be managed by the Watershed Lead Permittee, or any other 35 Watershed Permittee on approval of the Watershed Copermittees. 36 37 c. The Copermittee managing each General Program operations fund shall provide Budget 38 Balance and Expenditure Status Reports quarterly and following the end of each fiscal year. This 39 shall include a detailed accounting of all costs and expenses in accordance with the adopted Work 40 Plan and Shared Costs Budget, including those incurred by Copermittees providing Working 41 Body Support, contracting services, in-kind services, or other applicable costs. 42 43 d. Each Copermittee shall pay invoices within 60 days of receipt from the Copermittee managing 44 the applicable General Program operations fund. 45 46 e. Funds collected and not expended in any fiscal year shall be credited to the Copermittees' share 47 of the next fiscal year's costs in accordance with the Copermittees' defined shared costs. 48 49 f. Copermittees providing Working Body Support, Contract Administration, in-kind services, or 50 incurring other budgeted costs on behalf of other Copermittees shall provide documentation of 51 those expenses as requested by the Copermittee managing the applicable General Program 52 operations fund. They shall only receive credit for those expenses if a detailed accounting of all 53 costs and expenses meeting the minimum standards agreed upon by the Copermittees has been 54 provided. 55 56 g. Differences in the approved actual cost of expenses from those budgeted shall be either 57 credited or added as appropriate to the amount of the Copermittee's share. In the event that any 58 Copermittees' share of the next fiscal year's costs is less than the amount to be credited, the 59 difference shall be refunded to the Copermittee. This provision shall be retroactive to include 60 credits from FY 2008-09. Refunds shall be provided to Copermittees no later than 90 days after 61 final accounting. 62 63 h. At its discretion, a Copermittee managing a General Program operations fund may, prior to the 64 completion of a fiscal year, make payment to any Copermittee providing Working Body Support. 65 Contract Administration, in-kind services, or incurring other budgeted expenditures on behalf of 66 other Copermittees so long as all of the conditions of Section II. B.3.f above have been satisfied 67 and there are sufficient funds available to make a payment without requiring additional 68 contributions or jeopardizing program objectives. If for some reason excess payment is made, the 69 Copermittee receiving the payment agrees to return the additional payment without any recourse 70 against the managing Copermittee. 71 72 2. This First Amendment to MOU may be executed in counterparts and the signed 73 counterparts shall constitute a single instrument. 74 75 IN WITNESS Thereof, this First Amendment to MOU is executed as follows: Draft Final: For Copermittee Legal Review - comments due -2- to County by Monday, March 6, 2010 First Amendment to National Pollutant Discharge Elimination System San Diego Regional Stormwater Copermittees Memorandum of Understanding, Dated November 16, 2007 2.3 Except as hereinabove amended, the National Pollutant Discharge Elimination System, San Diego Regional Stormwater Copermittees, Memorandum of Understanding shall remain in full force and effect. In the event of a conflict between the provisions of the MOU and those of this Amendment, this Amendment shall control. IN WITNESS Thereof, this First Amendment to MOU is executed as follows: Dated: OF CARLSBAD [/%ud" Lewis, Ma City Council Approved as to form: Deputy City Attorne' First Amendment to San Diego Regional Stormwater Copermittees: March 18, 2010 -6-