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HomeMy WebLinkAbout2019-06-25; City Council; ; Fourth Amended National Pollutant Discharge Elimination System San Diego Regional Stormwater Copermittees Memorandum of Understanding 2019CA Review fb ('..,- ~ CITY COUNCIL ~ Staff Report Meeting Date: To: From: Staff Contact: Subject: June 25, 2019 Mayor and City Council Scott Chadwick, City Manager James Wood, Environmental Manager james.wood@carlsbadca.gov, 760-602-7584 Fourth Amended National Pollutant Discharge Elimination System San Diego Regional Stormwater Copermittees Memorandum of Understanding 2019 Recommended Action Adopt a Resolution authorizing the Mayor to execute the fourth amended National Pollutant Discharge Elimination System (NPDES) San Diego Regional Stormwater Copermittees Memorandum of Understanding (MOU) 2019. Executive Summary The City of Carlsbad is subject to California Regional Water Quality Control Board San Diego Region (Regional Board) NPDES Order No. R9-2013-0001, as amended by NPDES Order Nos. R9- 2015-0001, and .R9-2015-0100 (Permit). The Perm it requires the city to cooperate with other, agencies subject to the Permit (Copermittees). The City Council initially adopted a resolution to participate in a regional MOU on Dec. 18, 2007, and subsequently adopted three separate amendments on May 11, 2010, April 22, 2014, and Aug. 25, 2015, to direct this interjurisdictional cooperation. This MOU outlines the inter-agency management structure and describes how the Copermittees work together and share costs associated with implementing the Permit obligations. This fourth amendment allows the parties to continue to share costs associated with those efforts. Discussion Background The City of Carlsbad is subject to NPDES Order No. R9-2013-0001, as amended by NP DES Order Nos. R9-2015-0001, and R9-2015-0100. The Permit requires that the Copermittees cooperate in implementation of various regional and watershed programs. Regional Copermittees include County of San Diego, San Diego Unified Port District, San Diego County Regional Airport Authority, and incorporated cities of San Diego, Carlsbad, Chula Vista, Coronado, Escondido, Imperial Beach, La Mesa, San Marcos, Del Mar, El Cajon, Encinitas, Lemon Grove, National City, Oceanside, Poway, Santee, Solana Beach and Vista. Regional programs include implementation and maintenance of the Project Clean Water website, a web-based June 25, 2019 Item #10 Page 1 of 21 regional clearinghouse that provides a centralized point of access to water quality information and resources for San Diego County; regional education and outreach programs; membership in the California Stormwater Quality Association; regional studies; and regulatory reports, including regional monitoring reports. Watershed programs involve Copermittees located within the same watershed management area. The Carlsbad Watershed Management Area includes the County of San Diego and incorporated cities of Carlsbad, Encinitas, Escondido, Oceanside, San Marcos, Solana Beach and Vista. Watershed programs include development of a Water Quality Improvement Plan (WQIP), a strategic watershed-based plan intended to guide programs towards improved water quality in storm water discharges and receiving waters; WQIP annual reports; and monitoring of storm drain discharges and receiving waters within the watershed management area. The fourth amendment to the MOU allows Copermittees to continue sharing costs associated with Permit compliance as necessary through the remainder of the Permit term, which expired on June 27, 2018, or until a superseding NOPES Order is adopted by the San Diego Regional Water Quality Control Board. Other significant changes in this amendment include the following: • Extension of the MOU through August 2024, plus 12 months • Removal of reference to workgroups to clarify that those groups are not legislative bodies established by the Regional Stormwater Management Committee • Clarification that annual budgets for each fiscal year are subject to approval of Copermittee governing bodies as part oftheir regular annual budgeting process • Addition of not-to-exceed limits for the Regional and Carlsbad Watershed Management Area Programs for fiscal years 2019-20 through 2023-24. Previous Council Actions On Dec. 18, 2007, City Council approved Resolution No. 2007-325, authorizing the Mayor to execute the MOU between the City of Carlsbad and the Copermittees with respect to compliance with the Permit, including establishing a management structure for implementation. On May 11, 2010, City Council approved Resolution No. 2010-104, authorizing the Mayor to execute the first amendment of this MOU, which provided clarification to the parties of the MOU on the terms and conditions for crediting excess funds from one agreement year to the next, and the ability to receive reimbursement for tasks performed by one Copermittee for another Copermittee under the terms of the MOU. On April 22, 2014, City Council approved Resolution No. 2014-068, authorizing the Mayor to execute the second amendment of this MOU, which allowed Copermittees to continue sharing regional costs as required by the Permit, which was effective June 27, 2013. Changes incorporated into this amendment also included clarification of Copermittee participation requirements, clarification of conditions of breach of the MOU, and the addition of a work plan · and budget for fiscal year 2014-15. June 25, 2019 Item #10 Page 2 of 21 On Aug. 25, 2015, the City Council approved Resolution No. 2015-211, authorizing the Mayor to execute the third amendment to the MOU between the City of Carlsbad and the Copermittees. This amendment allowed the Copermittees to continue sharing regional costs as necessary through the remainder of the requirements of the Permit. Other changes in this amendment included removal of workgroups and activities that are not required by the Permit, inclusion of Brown Act Requirements, and addition of not-to-exceed amounts for fiscal years 2015-16 through 2018-19. Fiscal Analysis There are adequate funds in the Watershed Protection Program's operating budget to fully fund the city's obligation under the MOU for fiscal year 2019-20. Expected expenditures of $49,432 for fiscal year 2019-20 were included in the operating budget submitted and approved by City Council on June 18, 2019. Subsequent annual budgets will be requested through the annual budget process. Next Steps The city will continue to participate in the Regional MOU with other Copermittees to implement requirements of the Permit. Environmental Evaluation (CEQA) Pursuant to Public Resources Code Section 21065, this action does not constitute a "project" within the meaning of the California Environmental Quality Act (CEQA} in that it has no potential to cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and therefore does not require environmental review. Public Notification This item was noticed in accordance with the Ralph M. Brown Act and was available for public viewing and review at least 72 hours prior to scheduled meeting date. Exhibits 1. City Council Resolution. June 25, 2019 Item #10 Page 3 of 21 RESOLUTION NO. 2019-107 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AUTHORIZING THE MAYOR TO EXECUTE THE FOURTH AMENDED NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM SAN DIEGO REGIONAL STORMWATER COPERMITTEES MEMORANDUM OF UNDERSTANDING 2019 EXHIBIT 1 WHEREAS, the California Regional Water Quality Control Board San Diego Region (Regional Board) issued National Pollutant Discharge Elimination System (NPDES) Order No. R9-2007-0001 and subsequent NPDES Order No. R9-2013-0001, as amended by NPDES Order Nos. R9-2015-0001 and R9- 2015-0100 (Permit) to regulate discharges from municipal separate storm sewer systems in the San Diego region; and WHEREAS, the San Diego Regional Stormwater Copermittees {Copermittees) consist of County of San Diego, San Diego Unified Port District, San Diego County Regional Airport Authority, and incorporated cities of San Diego, Carlsbad, Chula Vista, Coronado, Escondido, Imperial Beach, La Mesa, San Marcos, Del Mar, El Cajon, Encinitas, Lemon Grove, National City, Oceanside, Poway, Santee, Solana Beach and Vista; and WHEREAS, the Permit requires that the Copermittees cooperate in implementation of various regional and watershed programs; and WHEREAS, on Dec. 18, 2007, the City Council, through Resolution No. 2007-325, authorized the Mayor to execute the Memorandum of Understanding (MOU) between the City of Carlsbad and the Copermittees as required pursuant to the Permit; and WHEREAS, on May 11, 2010, the City Council, through Resolution No. 2010-104, authorized the Mayor to execute the first amendment to the Copermittee MOU; and WHEREAS, on April 22, 2014, the City Council, through Resolution No. 2014-068, authorized the Mayor to execute the second amendment to the Copermittee MOU; and WHEREAS, on Aug. 25, 2015, the City Council, through Resolution No. 2015-211, authorized the Mayor to execute the third amendment to the Copermittee MOU; and WHEREAS, the fourth amendment allows the Copermittees to continue sharing costs through August 2024, or with the life of the Permit plus 12 months, whichever is longer; removes reference to workgroups to clarify that those groups are not legislative bodies established by the Regional Stormwater Management Committee; clarifies that annual budgets for each fiscal year are subject to June 25, 2019 Item #10 Page 4 of 21 approval of Copermittee governing bodies as part of their regular annual budgeting process; and adds not-to-exceed limits for the Regional and Carlsbad Watershed Management Area Programs for fiscal years 2019-20 through 2023-24. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows: 1. That the above recitations are true and correct. 2. The City Council of the City of Carlsbad hereby authorizes the Mayor to execute the fourth amendment to the Memorandum of Understanding between the City of Carlsbad and the San Diego Regional Stormwater Copermittees, attached hereto as Attachment A. PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 25th day of June, 2019, by the following vote, to wit: AYES: NAYS: ABSENT: Hall, Blackburn, Bhat-Patel, Schumacher, Hamilton. None. None. C luwa&;.i? rt!$~ ~ARBARA ENGLESON, City Clerk ,,,,111111111111,,,,, (SEAL) ~'''o''f CAJ:JJ'''❖❖ ~, ··::a!lt::~-n ~ ~~---~•,\,)~~ f t:-/W,····.;v~ \(Jt~iw~)CJ % c···· ... ~ ....... ~ -:-,, .,,.I .......... •·~,,.~ ~,,,,/;-IFQf\~,,,,,,,, ,,,,,111111111111'' June 25, 2019 Item #10 Page 5 of 21 Fourth Amended National Pollutant Discharge Elimination System San Diego Regional Stormwater Copermittees MEMORANDUM OF UNDERSTANDING 2019 Attachment A This Memorandum of Understanding (MOU), 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 San Diego, Carlsbad, Chula Vista, Coronado, Escondido, Imperial Beach, La Mesa, San Marcos, Del Mar, El Cajon, Encinitas, Lemon Grove, National City, Oceanside, Poway, Santee, Solana Beach, and Vista (Cities), collectively called Copermittees, establishes the shared program responsibilities of each party with respect to compliance with the National Pollutant Discharge Elimination System (NPDES) stormwater permit regulations administered by the United States Environmental Protection Agency (U.S. EPA) under the authority granted by the Federal Water Pollution Control Act (Clean Water Act) 33 USCA 1251 et seq. as amended. RECITALS WHEREAS, in 1987 Congress amended Section 402 of the Federal Water Pollution Control Act (33 USCA §1342p) to require the U.S. EPA to promulgate regulations for applications for permits for stormwater discharges; and WHEREAS, the u.s: EPA adopted final permit regulations on November 16, 1990; and WHEREAS, these permit regulations require the control of pollutants from storm water discharges by requiring an NPDES permit, which would allow the lawful discharge of storm water into waters of the United States; and WHEREAS, the County, the Port, the Airport, and the Cities desire to implement an integrated stormwater management program with the objective of improving surface water quality in the County of San Diego, but do so without waiving and expressly subject to any and all objections and appeals made by any Copermittee in response to any NPDES Permit; and WHEREAS, the California State Water Resources Control Board (CSWRCB) as designee of the U.S. EPA has delegated authority to the San Diego Regional Water Quality Control Board (Regional Board) for administration of the NPDES storm water permit within the boundaries of its region; and WHEREAS, on, May 8, 2013, the Regional Board issued an NPDES permit as Order No. R9-2013-0001, as amended by Order Nos. R9-2015-0001 and R9-2015-0100, NPDES No. CAS0109266, (Permit) governing waste discharge requirements for stormwater and urban runoff from the County, the Port, the Airport, and the Cities, naming these entities as Copermittees; and WHEREAS, said Permit requires that the Copermittees cooperate in the implementation of various Urban Runoff Management Plans; NOW, THEREFORE, the parties hereto do mutually agree as follows: San Diego Regional Stormwater Copermittees MOU - 1 -Fourth Amended: date June 25, 2019 Item #10 Page 6 of 21 I. DEFINITIONS At Large means representing all of the Copermittees of this MOU. Chair means presiding over and providing leadership and direction to a Working Body. This includes serving as a point of contact to external entities such as Regional Board staff, stakeholders, and industry groups, soliciting grnup input on and developing meeting content, facilitating meetings, and coordinating with the Secretary or Working Body Support staff to finalize work products for distribution to the Working Body. Chair responsibilities may also be.divided between Co-Chairs. Contract Administration means developing, soliciting, awarding, and managing contracts. Consensus means general agreement reached between the participants of a Working Body. Direct Costs mean those costs directly related to the development of a work product, or to the performance of a particular function or service. Direct Costs may include the wages of Copermittee employees engaged in an activity and the cost of materials or supplies needed to support that activity. Depreciation, equipment, and office space are not considered Direct Costs. Fiscal Year starts on July 1 and ends on June 30 of the following year. General Programs are collaborative urban runoff management activities which are (1) mandated by or necessary to implement requirements of the Permit, (2) necessary to anticipate the requirements, or .prepare for renewal, of the Permit, (3) required to comply with Regional Board Orders or other directives required of Copermittees as dischargers of urban rnnoff ( e.g., 13267 Orders, Total Maximum Daily Loads, etc.), or { 4) other urban runoff management activities conducted with the unanimous approval of Copermittees sharing the cost or responsibility. In-kind Contribution means a non-monetary contribution that can be used to satisfy an equivalent monetary obligation. Examples ofln-kind Contributions are equipment or services provided for use. Program Planning Subcommittee or Planning Subcommittee is composed as described in Section III.C.4 and 5. Regional General Program(s) are activities that apply to all Copermittees, or that provide a regional benefit to Copermittees as determined by the Regional Management Committee. Regional Principal Permittee is the County of San Diego unless another Regional Principal Permittee is selected in accordance with Section III.B.5. In addition to the responsibilities of all Copermittees described in Section II, the Regional Principal Permittee provides general coordination for the development and implementation of Regional General Programs, including the specific tasks and responsibilities described in Section III.A. l .b. Regional Stormwater Management Committee or Management Committee is composed as described in Section III.B.2. Regional Work Plan is a work plan that is one or more of the following: (1) developed and adopted annually for the purpose of conducting regional business to implement requirements of the Permit, (2) necessary to anticipate the requirements, or prepare for renewal, of the Permit, (3) required to comply with Regional Board Orders or other directives required of Copermittees as dischargers of urban runoff ( e.g., 13267 Orders, Total Maximum Daily Loads, etc.), or ( 4) other urban runoff management activities conducted with the unanimous approval of Copermittees sharing the cost or responsibility. Representative means a Copermittee staff member or consultant who serves as a point of contact and/or participant in the activities of a Working Body on behalf of the Copermittee. Except as described in Section III.B (Regional Stormwater Management Committee), Representatives are not required to attend meetings, but are expected to maintain a reasonable knowledge of, and involvement in, the activities of San Diego Regional Stormwater Copermittees MOU -2 -Fourth Amended: date June 25, 2019 Item #10 Page 7 of 21 the Working Body. To the best of their ability each Copermittee Representative should have expe1iise and knowledge in the subject matter of each applicable Working Body. Secretary means a person who takes responsibility for the records, correspondence, minutes or notes of meetings, and related affairs of a Working Body. This includes: maintaining group contact lists; preparing and sending out meeting notifications and agendas; arranging for meeting rooms and equipment; taking, preparing, and finalizing meeting minutes or notes; and, coordinating with the Chair or Working Body Support staff to organize and distribute work products to the Working Body. Simple Majority means at least one-half (50%) of applicable Copermittees, rounded up to the nearest integer, or plus one where the number of Copermittees is even. For the purposes of this MOU, a simple majority may never be less than three Copermittees. Shared Cost Budget is one that is agreed upon and shared by Copennittees for the purpose of conducting stormwater regulatory activities, and can be developed at a watershed, regional or other scale. Special Formula means any cost share formula that differs from the Default Formula in the selection or weighting of individual factors or in the methodology used to calculate one or more of them. Three-fourths Majority means at least three-foruihs (75%) of applicable Copermittees, rounded up to the nearest integer. For the purposes of this MOU, a Three-fourths Majority may never be less than three Copermittees. Two-thirds Majority means at least two-thirds (67%) of applicable Copermittees, rounded up to the nearest integer. For the purposes ofthis MOU, a Two-thirds Majority may never be less than three Copermittees. Urbanized Land Area means the total of all SANDAG land uses within the geographic area, subject to the cost share, excepting therefrom, the following coded land uses: 1403 Military Barracks; 4102 Military Airports; 6700 Military Use; 6701 Military Use; 6702 Military Training; 6703 Military Weapons; 7209 Casinos; 7603 Open Space Reserves, Preserves; 7609 Undevelopable Natural Areas; 9200 Water; 9201 Bays, Lagoons; 9202 Inland Water; and 9300 Indian Reservations. Watershed Copermittee means any Copermittee that is identified both as a Copermittee under Table l .a and a Responsible Copermittee under any Watershed Management Area as defined in Table B-1 of the Permit. Watershed General Programs are activities that apply to the Copermittees comprising any individual Watershed Management Area (WMA) defined in Table B-1 of the Permit, or providing a general benefit to Copermittees within the WMA as determined by a Working Body. Working Body means Committees, Subcommittees, Sub-working body(s), or any other working group of Copermittees' employees assembled to conduct specific tasks required by, for, or in furtherance of, compliance with the Permit. II. RESPONSIBILITIES OF ALL COPERMITTEES The following apply to General Programs. A. Performance and Reimbursement of Tasks 1. Any individual Copermittee performing tasks necessary to fulfill budgeted General Program responsibilities for a Working Body is entitled to reimbursement of the costs incurred in accordance with section 11.B. San Diego Regional Stormwater Copermittees MOU - 3 -Fourth Amended: date June 25, 2019 Item #10 Page 8 of 21 2. Any Copermittee performing contract administration tasks to fulfill budgeted General Program responsibilities for a Working Body is entitled to reimbursement of contract management costs at a rate of 5% of the total contract cost or as otherwise agreed on by the participating Copermittees. 3. Any Copermittee performing tasks other than contract administration or voluntarily serving as a Working Body Chair, Co-chair, or Secretary, is entitled to reimbursement of the Direct Costs of performing those services in accordance with section II.B. 4. A Copermittee shall not be obliged to conduct work, enter into any contract, continue with any work or contract, or incur any other cost on behalf of other Copermittees if each Copermittee has not contributed the funds that it is obliged to contribute toward the activity or program, or if the Copermittee has not received adequate assurances that such funds will be received before payments become due. The Copermittee shall have sole discretion to determine whether assurances that require funds will be timely received or adequate. 5. A member of a Working Body providing Working Body Supp01i may terminate those obligations for convenience, but shall first make a good faith effort to carry out or transfer existing responsibilities to another party by providing written notification of termination to the Copermittees within the Working Body 90 days prior to the intended date of termination. B. Fiscal Responsibilities 1. Division of Shared General Program Costs a. Prior to the allocation of shared costs, each proposed or approved budget task or sub-task shall be identified as either a Regional General Program cost or a Watershed General Program cost, and the Copermittees sharing that cost shall be identified. The cost of any particular budget element shall be subject to the approval of only the Copermittees to which it applies. The associated costs shall be divided among participating Copermittees as described below. (1) Default Formula. Shared costs shall be divided according to a Default Formula of 45% Urbanized Land Area, 45% Population, and 10% Equal Division unless a Special Formula is approved by the Copermittees to which the cost applies. (a) Population costs shall be divided among the Copermittees as follows: Whenever any geographic portion of the Port or Airportjurisdiction(s), respectively, lies(s) within the geographic area to which the shared program or activity is applicable, the Port or Airport, respectively, will each pay a fixed 0.5% of total Population costs. The remaining percentage of the population costs shall be divided among Copermittees by dividing the total population of each Copermittee by the combined total Copermittee population within the geographic area applicable to the shared program or activity. These percentages shall be calculated using the most recently available population data available from the San Diego Association of Governments (SANDAG), unless more recent data are available from an equivalent source such as the U.S. Census Bureau, and are determined to be acceptable by the Copermittees sharing the cost. (b) Urbanized Land Area costs shall be divided among Copermittees by dividing the total Urbanized Land Area of each Copermittee by the combined total Urbanized Land Area of all participating Copennittees within the geographic area applicable to the shared program or activity. Urbanized Land Area shares shall be calculated using the most recently available San Diego Association of Governments (SANDAG) land use statistics. The Urbanized Land Area share San Diego Regional Stormwater Copermittees MOU - 4 -Fomih Amended: date June 25, 2019 Item #10 Page 9 of 21 for the County shall include those urbanized lands in the unincorporated p01iion of the County that are west of the County Water Authority (CWA) service area boundary as it exists on the date of this MOU or as formally amended by the CW A. (c) Ten Percent (10%) of the total cost to be shared shall be divided equally amongst all of the Copermittees. ( d) Modification of the Default Formula requires the unanimous vote of all Copermittees. For cost sharing that applies only to a group that contains fewer than all Copermittees, a unanimous vote is required of all affected Copermittees. (2) Special Formulas. Special Formulas may be applied to any shared Regional or Watershed General Program cost, and require the unanimous vote of the Copermittees participating in the cost. (3) In-kind Contributions. Subject to approval by the Copermittees paiiicipating in a particular shared General Program budget, a Copermittee may provide an in-kind contribution of equal value rather than a monetary contribution toward all or part of the cost of an activity. Copermittee in-kind contributions may include Working Body Support. 2. Work Plans and Shared Cost Budgets a. Limitations on Cost-sharing General Program activities that may be cost-shared by the Copermittees include collaborative urban runoff management activities which are (1) mandated by or necessary to implement requirements of the Permit, (2) necessary to anticipate the requirements, or prepare for renewal, of the Permit, (3) required to comply with Regional Boai·d Orders or other directives required of Copermittees as dischargers of urban runoff ( e.g., 13267 Orders, Total Maximum Daily Loads, etc.), or ( 4) other urban runoff management activities conducted with the unanimous approval of Copermittees shai·ing the cost or responsibility. Examples of such activities include: (1) Development or implementation of any program requirements of the MS4 Permit, such as, the BMP Design Manual, regional education and outreach, or Water Quality Improvement Plans; (2) Public participation activities, such as facilitating public meetings and workshops; (3) Program assessment; (4) Plan updates; (5) Water quality monitoring, assessment and reporting; (6) Annual reporting, including establishment and management of data and information clearinghouses; San Diego Regional Stormwater Copermittees MOU - 5 -· Fourth Amended: date June 25, 2019 Item #10 Page 10 of 21 (7) Preparation of technical analyses, recommendations and comments regarding the MS4 Permit, total maximum daily loads, and other relevant storm water quality regulations; (8) Preparation of documents required by the MS4 Permit, such as Reports of Waste Discharge; and (9) Special studies related to storm water quality-related pollutants, their sources, and potential best management practices. b. Work Plans and Shared Cost Budgets 1. No later than October 31'1 of each year, each Working Body shall prepare and submit to the Planning Subcommittee a proposed Work Plan and Shared Costs Budget for the upcoming Fiscal Year. 2. Each Work Plan shall identify the parties that will serve as a Working Body Chair, Co- chair, or Secretary for the upcoming Fiscal Year. These assignments will be served on a fiscal year basis, and shall be for a minimum term of one year. 3. A Copermittee may not be compelled to act, or continue acting, as a Working Body Chair, Co-chair, or Secretary, and may at any time terminate an existing assignment. Before doing so, the Copermittee shall first make a good faith effort to carry out or transfer existing responsibilities. 4. Each budget shall describe major tasks, schedules, and projected costs, which Copermittees will provide Working Body Support, Contract Administration, in-kind contributions, and any other information applicable to regional general program costs. 5. To ensure that each Copermittee governing body has sufficient time to consider fiscal impacts, the Planning Subcommittee shall prepare a consolidated draft Regional Work Plan and Shared Costs Budget no later than December 31st of each year for the Regional General Programs. After consideration of comments and discussion, a final Regional Work Plan and Shared Costs Budget shall be prepared, approved by the Management Committee, and distributed to the Copermittees no later than January 31 st of each year. The consolidated Regional Work Plan and Shared Costs Budget shall also identify the party or parties serving as Regional General Program operations fund managers. 6. Modifications to any adopted Regional Work Plan and Shared Costs Budget that will result in an overall increase in cost require the approval of the Regional Management Committee. 7. Copermittees from each Working Body, for which costs will be shared, shall prepare, agree upon and distribute to the participating Copermittees in that watershed, a watershed work plan and Shared Costs Budget. 8. Approval of the Shared Costs Budget for each fiscal year is subject to approval by Copermittee governing bodies as part of their regular annual budg<::ting process. 3. · Cumulative Budget Limits a. The total Shared Cost Budget authorized under this MOU may not exceed the cumulative limits specified for each spending category in Table 1. These values represent the maximum amount that may be cost-shared for each spending category for the duration of this MOU. They do not represent funding commitments. Once a cumulative limit has been reached, the Copermittees must establish separate agreements for sharing additional costs for that budget category. The estimated annual limits shown for each fiscal year are for planning purposes only. Where an estimated annual limit is not reached in any fiscal San Diego Regional Stormwater Copermittees MOU -6 -Fourth Amended: date June 25, 2019 Item #10 Page 11 of 21 year, the surplus amount may be carried over into subsequent fiscal years, so long as the cumulative limit is not exceeded. Budget limits apply only to their designated budget category. They may not be exchanged or credited across budget categories. Spending in each budget category may not exceed the applicable cumulative limit under any circumstances. San Diego Regional Stormwater Copermittees MOU - 7 -Fourth Amended: date June 25, 2019 Item #10 Page 12 of 21 Table 1: Not-to-exceed Limits by Budget Category Regional Budgets $850,560 $920,800 $1,158,300 $764,000 $814,000 San Luis Rey, SLR $1,201 ,200 $636,025 $655,106 $882,759 $1,013,502 $4,388,592 Carlsbad, CAR $122,600 $1,269,200 $519,200 $698,700 $847,200 $3,456,900 San Dieguito, SDG $1,071 ,250 $843,750 $753,750 $597,500 $547,500 $3,813,750 Los Penasquitos, $903,125 $794,375 $673,125 $748,125 $698,125 $3,816,875 LPQ San Diego River, $2,098,688 $1 ,181,250 $984,375 $1 ,077,563 $1,391,250 $6,733,126 SDR San Diego Bay, $828,000 $770,000 $792,000 $814,000 $727,000 $3,931,000 SDBay Tijuana, TJ $512,000 $464,000 $471 ,000 $505,000 $459,000 $2,411 ,000 SDR 1/0: County of San Diego, Cities of $150,000 $150,000 $150,000 $150,000 $150,000 $750,000 . EI Cajon, La Mesa, Santee Bacteria TMDL (Cities of Carlsbad, Del Mar, El Cajon, Encinitas, Escondido, La Mesa, Lemon Grove, Oceanside, $20,000 $20,000 $20,000 $20,000 $20,000 $100,000 Port of San Diego, Poway, San Diego, San Marcos, Santee, Solana Beach, Vista and the County of San Die o. Total Watershed Management Area $6,826,663 $5,403,300 $4,937,556 $5,412,247 $5,771,777 $28,351,543 . (WMA) Budgets Total WMAs+ $7,677,223 $6,324,100 $6,095,856 $6,176,247 $6,585,777 $32,859,203 Regional Budgets San Diego Regional Stormwater Copermittees MOU -8 -Fourth Amended: date June 25, 2019 Item #10 Page 13 of 21 4. Management and Payment of Funds a. For Regional General Programs, the Copermittees shall each pay a yearly assessment into one or more Regional General Program operations funds for their respective 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 applicable watershed Copermittees shall each pay an assessment into one or more Watershed General Program operations funds 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 pennittee, or any other watershed permittee on approval of the participating Copermittees. c. The Copermittee managing each General Program operations fund shall provide budget balance and expenditure status reports following the end of each fiscal year. This shall include a detailed accounting of all costs and expenses in accordance with the accepted work plan and Shared Costs Budget, including those incurred by Copermittees providing Working Body Suppo1i, contracting services, in-kind services, or other applicable costs. d. Each Copermittee shall pay invoices within 60 days of receipt from the Coperrnittee 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 Copermittees' 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. 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 Suppo1i, 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.4.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. III. REGIONAL GENERAL PROGRAMS In addition to the requirements of Section II, the following apply to Regional General Programs. A. Regional Principal Permittee San Diego Regional Stormwater Copermittees MOU - 9 -Fomih Amended: date June 25, 2019 Item #10 Page 14 of 21 1. The County is hereby designated Regional Principal Permittee (Principal Permittee). a. The County or any other Copermittee may not be compelled to act, or continue acting, as Principal Permittee. A Copermittee may at any time terminate its assignment as Principal Permittee, but shall first make a good faith effort to carry out or transfer existing responsibilities. b. In addition to the responsibilities of all Copermittees described in Section II, the Principal Permittee shall provide general coordination for the development and implementation of Regional General Programs, including the following tasks and responsibilities: (1) Establish, chair, and provide overall coordination and leadership of the Regional Stormwater Management Committee (Management Committee) and the Regional Program Planning Subcommittee (Planning Subcommittee). (2) Maintain a current contact list of Copermittees and interested patties. (3) Maintain knowledge of and advise the Copermittees regarding current and proposed state and federal policies, regulations, and other NPDES programs; assist the Copermittees in the development and presentation of positions on these issues before local, state, and federal agencies. B. Regional Stormwater Management Committee 1. The purpose of the Regional Stormwater Management Committee (Management Committee) is to develop, approve, and coordinate urban runoff management programs, and to explore issues of regional significance. 2. The Management Committee shall consist of one Representative of each Copermittee. Each Copermittee shall have one vote. 3. The Management Committee shall meet at least annually. 4. At a minimum, the Management Committee shall have the following responsibilities: a. Address common issues, promote consistency among jurisdictional and watershed programs, and plan and coordinate activities required under the Permit; b. Develop, implement, and arrange for implementation of Regional General Programs; c. Provide a general forum for informing and receiving input from stakeholders and interested parties; d. Provide a forum for public participation in the development and implementation of regional urban runoff management programs and activities; e. Review specific issues pertaining to Working Bodies, make recommendations, or conduct work in support of shared regional priorities or objectives; f. Formally approve the recommendations, work products, and deliverables of Working Bodies presented for consideration; g. Adopt an Annual Regional Work Plan and Shared Costs Budget in accordance with the budgetary limits set forth in Table 1; h. Approve an Annual Regional Work Plan and Shared Costs Budget; and i. Approve year-end Budget Balance and Expenditure Status Reports. 5. The Management Committee shall be chaired by the Principal Permittee, or may alternatively be chaired or co-chaired by any other Copermittee. A reassignment or change in the responsibilities of the Principal Permittee requires a three-fourths majority approval of all Copermittees. San Diego Regional Stormwater Copermittees MOU -10 -Fourth Amended: date June 25, 2019 Item #10 Page 15 of 21 6. Voting Requirements for the Management Committee a. For a meeting or a vote to be held, a quorum of a Two-thirds Majority of voting representatives of the Management Committee must either be present or participate remotely via legally acceptable electronic communication (telephone, voice over internet protocol, etc.). b. Management Committee voting shall not be conducted outside of meetings (e.g., by email). c. For a motion to be approved, an affirmative vote of a Simple Majority of the Management Committee is needed. d. On approval of the Management Committee, activities undertaken by a subset of Copermittees, but providing a regional benefit to Copermittees, may be considered Regional General Programs. · e. Approval of any shared cost requires a unanimous vote of all Copermittees participating in the cost. C. Regional Program Planning Subcommittee 1. The purposes of the Regional Program Planning Subcommittee (Planning Subcommittee) shall be to provide regional coordination of urban runoff management activities, to develop and implement Regional General Programs, and to coordinate the activities of Working Bodies. 2. At a minimum, the Planning Subcommittee shall have the following responsibilities: a. Serve as an intermediary between the Management Committee and other Copermittee Working Bodies; b. Plan and coordinate Management Committee meetings; c. Review specific issues pertaining to Regional Working Body(s), make recommendations, or conduct work in support of shared regional priorities or objectives; d. Oversee, coordinate, and track the progress of As-Needed Regional Working Body(s) in developing specific work products, responding to information requests, and completing tasks; e. Establish and maintain a calendar of Copermittee meetings and events; f. Conduct regional program planning including developing an Annual Regional Work Plan and Shared Costs Budget for Management Committee consideration and approval; g. Review and recommend Management Committee approval of work products, recommendations, and requests of Regional Working Body(s) for consideration and approval; h. Annually receive, review, comment on, and consolidate the recommended Work Plans and Shared Costs Budgets of each Regional Working (body(s); i. Coordinate and liaise with Regional Board staff, stakeholders, regulated parties, and other interested parties to identify and explore key regional issues and concerns. j. Provide Representation to the California Stormwater Quality Association (CASQA); k. Provide representation or participation for other professional organizations and societies as appropriate and feasible; I. Provide regular updates to Copermittees and interested parties via Management Committee meetings or other appropriate means (e-mail, etc.); and m. Provide subject area input as needed for the development, implementation, review, and revision of General Programs, and the development of associated reports and work products. San Diego Regional Stormwater Copermittees MOU -11 -Fourth Amended: date · June 25, 2019 Item #10 Page 16 of 21 3. The Planning Subcommittee shall be chaired by the Principal Permittee, or may alternatively be chaired or co-chaired by any other Copermittee upon approval of the Management Committee. 4. Planning Subcommittee meetings shall be open to all Copermittees; however, voting membership in any year shall be limited to one representative of each Watershed Management Area (WMA) listed in Permit Table a. I except the South Orange County WMA. Any Copermittee may only represent one WMA. For each fiscal year, each WMA will designate a Copermittee as a voting member of the Planning Subcommittee prior to the beginning of that fiscal year. Each WMA may also designate an alternate voting member. 5. Each voting member shall be considered an at-large member. Their purpose is to represent the interests of all Copermittees of this MOU rather than those of their specific WMAs. 6. The Planning Subcommittee may not alter the responsibilities of, or impose new fiscal obligations on, any Copermittee or Working Body, except as approved by the Management Committee. However, the Planning Subcommittee may approve changes to approved Annual Regional Work Plans and Shared Costs Budgets within approved annual budget limits. 7. Voting Requirements for the Planning Subcommittee: a. The Planning Subcommittee shall only make advisory recommendations for items requiring Management Committee approval. b. The Planning Subcommittee may use any voting methodology it deems appropriate to develop advisory recommendations or conduct other business, and, shall present minority or dissenting recommendations for consideration by the Management Committee as applicable. IV. DISPUTE RESOLUTION Should a dispute arise among any of the parties regarding any matter related to this MOU, the parties agree to first meet and confer in good faith to attempt to resolve the dispute. If that fails to resolve the dispute, they shall submit the matter to mediation. 1. Mandatory Non-binding Mediation. If a dispute arises out of, or relates to this MOU, or the breach thereof, and if the dispute cannot be settled through normal contract negotiations, the Parties agree to attempt to settle the dispute in an amicable manner, using mediation under the Mediation Rules of the American Arbitration Association [AAA] or any other neutral organization agreed to by the parties. A mediation session is required before having recourse in a court oflaw. The cost of mediation shall be borne by the parties equally. 2. Selection of Mediator. A single Mediator that is acceptable to all Parties shall be used to mediate the dispute. The Mediator may be selected from lists furnished by the AAA or any other agreed upon Mediator. To initiate mediation, the initiating Party shall serve a Request for Mediation on the opposing Party. 3. Conduct of Mediation Sessions. Mediation hearings will be conducted in an informal manner and discovery will not be allowed. All discussions, statements, or admissions in the mediation process will be confidential settlement negotiations under Ca. Evidence Code section 1152. The Parties may agree to exchange any information they deem necessary. a. Both Parties must have an authorized representative attend the mediation. Each representative must have the authority to recommend entering into a settlement. Either Pruty may have attorney(s) or expert(s) present. San Diego Regional Stormwater Copermittees MOU -12 -F omih Amended: date June 25, 2019 Item #10 Page 17 of 21 b. Any agreements resulting from mediation shall be documented in writing. All mediation results and documentation, by themselves, shall be "non-binding" and inadmissible for any purpose in any legal proceeding, unless such admission is otherwise agreed upon, in writing, by both Parties. Mediators shall not be subject to any subpoena or liability and their actions shall not be subject to discovery. V. GENERAL PROVISIONS A. Term of Agreement 1. This MOU shall become effective on the date the last party executes the MOU. 2. The life of the MOU shall be effective through August 2024, or with the life of the cunent Permit plus twelve months, whichever is longer. For purposes of this paragraph, any permit renewal or replacement after May 2024 shall be considered a new permit; any earlier amendment of the Permit increasing the obligations of the Regional Principal Permittee or a Watershed Lead Permittee may at that Copermittee's sole option, be declared to he a new permit; and the Management Committee shall determine whether any other earlier amendment to the Permit is of such significance as to effectively be a new Permit. B. Withdrawal of Copermittee 1. Participation in this MOU may be withdrawn by any Copermittee for any reason only after the Copermittee complies with all of the following conditions of withdrawal: a. The Copermittee shall notify all of the other Copermittees in writing 90 days prior to its intended date of withdrawal. · b. Any expenses associated with withdrawal, including but not limited to, filing and obtaining the withdrawing Copermittee's individual NPDES pennit and the amendment of the Permit will be solely the responsibility of the withdrawing Copermittee. c. The withdrawing Copermittee shall be responsible for their portion of any shared costs incurred according to the conditions of this MOU up to the time that each of the conditions in Section V.B. l.a. has been met. d. Any monies paid by withdrawing Copermittee in excess of the amount due under the terms of the MOU shall be refunded to the Copermittee at the time the withdrawal becomes final as set forth in Section V.B. l.a. e. The withdrawing Copermittee shall not be entitled to participate in the division of proceeds in any reserve fund account when the MOU is dissolved. C. Non-Compliance with MOU Requirements 1. Any participant to this MOU found to be in non-compliance with the conditions of this MOU shall be solely liable for any lawfully assessed penalties resulting from such non-compliance. Failure to comply with MOU conditions within specified or agreed upon timelines shall constitute non-compliance with the MOU. 2. Limitations on Use of Funds. Notwithstanding the rights and obligations of the Parties created by this MOU, no Party may be found in breach of this MOU where compliance would require that Pm1y to violate any law or grant assurance, including but not limited to provisions of the Federal Aviation Administration 1999 Policy and Procedure Concerning the Use of Airport Revenue [64 San Diego Regional Stormwater Copermittees MOU -13 -Fourth Amended: date June 25, 2019 Item #10 Page 18 of 21 Fed. Reg. 7696, dated Feb. 16, 1999]; the Airport and Airway Improvement Act of 1982 codified at 49 U.S.C. § 47107(b); the Federal Aviation Administration Authorization Act of 1994, P.L. 103-305 (Aug. 23 , 1994); the Airport Revenue Protection Act of 1996, Title VIII of the Federal Aviation Administration Act of 1996, P.L. 104-264 (Oct. 9, 1996), 110 Stat. 3269 (Oct. 9, 1996); 49 U.S.C. § 46301(n)(5); and 49 U.S.C. § 47133. The Parties recognize that the Authority has received federal Airport Improvement Project ("AIP") grants containing grant assurance 25, which provides: "All revenues generated by the airport ... will be expended by it for the capital or operating costs of the airport; the local airport system; or other local facilities which are owned or operated by the owner or operator of the airport and which are directly and substantially related to the actual air transportation of passengers or property; or for noise mitigation purposes on or off the airport." D. Amendments to the Memorandum of Understanding This MOU may be amended only by unanimous consent of all Copermittees. No amendment shall be effective unless it is in writing and signed by the duly authorized representatives of the Copermittees. E. Governing Law This MOU shall be governed and construed in accordance with the laws of the State of California. If any provision or provisions shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The headings used throughout this MOU are for convenience only and do not in any way limit or amplify the terms or provisions of the MOU. F. Consent and Breach Not Waiver No term or provision hereof shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the Copermittee to have waived or consented. Any consent by any Copermittee to, or waiver of, a breach by the other, whether expressed or implied, shall not constitute a consent to, waiver of, or excuse for any other different or subsequent breach. G. No Indemnification 1. Each Copermittee shall have the sole responsibility to comply with the Permit. 2. Each Copermittee shall pay all fines, penalties, and costs which may arise out of such Copermittee's non-compliance with the Permit. 3. By entering into this MOU, no Copermittee assumes liability for claims or actions arising out of the performance of any work or actions or omissions, by any other Copermittee, its agents, officers, and employees under this MOU. 4. By entering into this MOU, each Copermittee agrees to defend itself from any claim, action or proceeding arising out of the acts or omissions of itself and retain its own legal counsel, and bear its own defense costs. H. Application of Prior Agreements This MOU constitutes the entire Agreement between the patties with respect to the subject matter; all prior agreements, representations, statements, negotiations, and undertakings are superseded hereby. San Diego Regional Stormwater Copermittees MOU -14 -Fourth Amended: date June 25, 2019 Item #10 Page 19 of 21 I. Right to Audit Each Party retains the right to review and audit, and the reasonable right of access to .other Parties' respective premises to review and audit the other Patiies' compliance with the provisions of this MOU (Party's Right). The Party's Right includes the right to inspect and photocopy same, and to retain copies, outside of the Parties' premises, of any and all records, including any and all books, records, and documents, related to this MOU with appropriate safeguai·ds, if such retention is deemed necessary by the auditing Patiy in its sole discretion. This information shall be kept by the auditing Party in the strictest confidence allowed by law. J. Execution of Agreement This MOU may be executed in counterpart and the signed counterparts shall constitute a single instrument. In the event that any Copermittee is unable to execute this amendment prior to August 31, 2019, execution of this amendment after that date shall constitute ratification of this amendment, and the MOU and extensions shall be in effect once all signatures are obtained. San Diego Regional Stormwater Copermittees MOU -15 -Fourth Amended: date June 25, 2019 Item #10 Page 20 of 21 Except as hereinabove amended, the Fourth Amended 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 provision of the MOU and those of this Amendment, this Amendment shall control. IN WITNESS WHEREOF, this Fourth Amended MOU is executed as follows: Date: __ ·J ............... /1~/~J 1~-- Approved as to form. Date: ___ 7_/_1~/_l_°I~---- Matt Hall Mayor City of Carlsbad ::andaGu~L 3/ Deputy City Attorney City of Carlsbad San Diego Regional Storm water Copermittees MOU 2019 June 25, 2019 Item #10 Page 21 of 21