HomeMy WebLinkAboutVarious local government agencies (collectively, Co-permittees); 2007-06-28; R9-2007-0001/NPMEMORANDUM OF UNDERSTANDING
BY AND BETWEEN CO-PERMITTEES
REGARDING SHARING OF COSTS ASSOCIATED WITH
PROSECUTION OF UNFUNDED STATE MANDATES CLAIM
This Memorandum of Understanding (“MOU”) is entered into as of this 28th day of
June 2007 by and between the following local government agencies located in San
Diego County: The County of San Diego; City of Carlsbad, City of Chula Vista, City of
Coronado, City of Del Mar; City of El Cajon; City of Encinitas, City of Escondido; City
of Imperial Beach; City of La Mesa; City of Lemon Grove; City of National City; City of
Oceanside; City of Poway; City of San Diego, City of San Marcos; City of Santee;
City of Solana Beach, and City of Vista (collectively, Co-permittees”) with regard to
the following:
RECITALS
A. Co-permittees are individually and collectively subject to Order No. R9-
2007-0001/NPDES Permit No. CAS0108758 (“Permit”) adopted by the California
Regional Water Quality Control Board, San Diego Region (“Regional Board”) on
January 24, 2007.
B. Neither the Regional Board nor the State Water Resources Control
Board have acknowledged that any portion of the Permit constitutes a State mandate
that exceeds the scope of the Federal Clean Water Act and its implementing
regulations. Co-permittees believe that portions of the Permit do in fact constitute
unfunded State mandates and that pursuant to Article XIII B §6 of the California
Constitution, a State subvention of funds is required before Co-permittees must
implement those portions that exceed the Federal requirements.
C. Co-permittees desire to pursue the issue of unfunded State mandates,
and believe that the necessary administrative and procedural actions associated with
the same should be jointly undertaken to present a unified and coordinated front and
to achieve cost savings where possible. These actions have included and will
include, but may not be limited to, the following: Petition to the State Water
Resources Control Board; preparation and presentation of a Test Case before the
State Mandates Commission; Petition for Writ of Mandate; Appeals; Re-hearing and
potential settlement with the State Mandates Commission (collectively, “Mandates
Claim”).
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and of the Recitals, it is mutually agreed by and between the parties as
follows:
1. Draft Budget. Co-permittees have prepared a draft budget of presently
anticipated costs and expenses associated with pursuit of the Mandates Claim and
Page 1 of 27 Memorandum of Understanding
the elements thereof, which budget is attached hereto as Exhibit A and incorporated
herein by reference (“Draft Budget”). Co-permittees acknowledge that the Draft
Budget is based on information presently known, that it is only an estimate of
potential costs and expenses, and agree that they will share the actual costs and
expenses for the Mandates Claim as outlined herein.
2. Mandates Claim Counsel, Lead Counsel. The work contemplated by this
Agreement shall be performed by the legal counsel identified in the attached Draft
Budget (“Mandates Claim Co-Counsel”). Co-permittees agree that County Counsel
for the County of San Diego shall be identified as lead counsel and that the County of
San Diego shall be the Test Claimant in the Test Case. In the event a Test Case is
filed, each Co-permittee, including those represented by Mandates Claim Co-
Counsel, may join as an Interested Party.
3. Obligations of Co-permittees - Petition to the State Water Resources Control
Board. Except with respect to the efforts of Mandates Claim Co-Counsel as
addressed in Section 5, below and Exhibit A, Co-permittees, and each of them, shall
hold the remaining Co-permittees harmless from costs and expenses associated with
the efforts expended by their individual attorneys in this regard.
4. Obligations in Test Case and Associated “Appeals”. While County of San
Diego shall prepare documents on behalf of Co-permittees for the Test Case and
associated “appeals”, Co-permittees acknowledge and agree that Mandates Claim
Co-Counsel may assist in preparing such documents. All documents shall be
distributed to each attorney for Co-permittees for review. In the event a Co-permittee
joins as an Interested Party, such joinder documents shall be distributed to all
individual attorneys for Co-permittees for review. Except with respect to the efforts of
Mandates Claim Co-Counsel as addressed in Section 5, below and Exhibit A, Co-
permittees, and each of them, shall hold the remaining Co-permittees harmless from
costs and expenses associated with the efforts expended by their individual attorneys
in this regard.
5. Cost Sharing by Co-Permittees. Co-permittees agree that the costs and
expenses associated with pursuit of the Mandates Claim shall be allocated among
the Co-permittees as follows:
5.1 Co-permittees agree to utilize the formula for the allocation of costs and
expenses set forth in Section IV.B of that certain NPDES San Diego Regional
Stormwater Copermittees Memorandum of Understanding dated December 3, 2001,
modified hereinbelow as necessary to eliminate references to entities not party to this
Agreement and to individual program cost expenses not allocated by this Agreement.
5.1.1 Ten percent (10%) of the cost shall be divided equally among all
Copermittees.
Page 2 of 27 Memorandum of Understanding
5.1.2 Forty-five percent (45%) of the cost shall be divided based on
population. Population-based costs shall be divided among all Copermittees as
follows:
5.1.2.1 The percentage of Population Share Costs for which
each Copermittee is responsible shall be calculated by dividing their total population
by the combined total population of all participating Copermittees within San Diego
County. These percentages shall be calculated using the “Household” population
figures of the San Diego Association of Governments (SANDAG) “Population and
Housing Estimates” for the year 2000 or as formally updated or amended by
SANDAG.
5.1.2.2 The calculation of the County’s population shall be
based upon the entire population of the unincorporated County.
5.1.3 Forty-five percent (45%) of the cost shall be based on urbanized
land area to be divided among all participating Copermittees as follows.
5.1.3.1 The percentage of land area costs for which each
Copermittee is responsible shall be calculated by dividing their total urbanized land
area by the combined total urbanized land area of all participating Copermittees
within the geographic area applicable to the shared program or activity.
5.1.3.2 These totals shall be calculated using the most
recently available San Diego Association of Governments (SANDAG) land use
statistics.
5.2 Mandates Claim Co-Counsel shall each submit their invoices and
statements of work to Lounsbery Ferguson Altona & Peak, Attn: Helen Holmes Peak,
on at least on a quarterly basis reflecting such costs and expenses, and the Co-
permittees agree that Helen Holmes Peak shall facilitate payment for the same in the
same manner and method as the Co-permittees have borne shared technical and
associated costs relating to the Permit to date. Work performed by County Counsel
as Mandates Claim Co-Counsel shall be accounted for and shall represent a credit in
favor of Co-permittee, County of San Diego against its share of Mandates Claim
costs and expenses. Co-permittees shall each submit payment for their share of
such costs and expenses to Helen Holmes Peak within forty-five (45) days of receipt
of Helen Holmes Peak’s request for the same. Such costs and expenses shall be
deemed to have accrued from and after January 24, 2007.
6. Sharing of Costs with Other Entities When Feasible. To the extent possible,
Mandates Claim Counsel shall endeavor to share costs with other entities that may
be pursuing their own remedies with respect to the Permit. For example, Co-
permittees may share the cost of the transcript of the Regional Board hearings on the
Permit with the Building Industry Association.
Page 3 of 27 Memorandum of Understanding
7. Conflict of Interest. Co-permittees acknowledge and agree that Mandates
Claim Counsel represent individual entities within the Co-permittee group for all
purposes. Individual Mandates Claim Counsel may also have unrelated matters
pending before other entities within the Co-permittee group. Participation in a joint
prosecution of the Mandates Claim as contemplated by this Agreement shall not be
considered to constitute representation by counsel for any individual Co-permittee of
another Co-permittee, nor shall such participation be grounds to disqualify counsel or
experts from representing any Co-permittee. For purposes of pursuit of the
Mandates Claim, each individual Co-permittee acknowledges such other
representation, or possibility of such other representation, agrees to the participation
of Mandates Claim Counsel, and each of them, in the Mandates Claim, and waives
any conflict of interest that may arise or be created as a result of the involvement of
Mandates Claim Counsel in the Mandates Claim, or between Co-permittees and/or
their counsel and experts as a result of this Agreement.
8. Joint Prosecution of Mandates Claim. Co-permittees agree that all
communications between Co-permittee counsel in furtherance of the purpose of this
Agreement shall be protected by the attorney-client privilege and the attorney work-
product privilege to the fullest extent permitted by the law. Each Co-permittee will
take all reasonable steps necessary to protect such communications and information
from disclosure to third parties not subject to this Agreement. If such information is
demanded by any person, each Co-permittee shall assert all relevant privileges.
9. Withdrawal from Agreement. Any Co-permittee may withdraw from
participation in this Agreement upon fifteen (15) days' prior written notice to the other
Co-permittees, and payment of its share of costs and expenses incurred through the
date of termination. If a Co-permittee withdraws from this Agreement under this
paragraph, the withdrawing Co-permittee and the remaining Co-permittees will
remain obligated to preserve the confidentiality of all confidential information received
from or disclosed to the withdrawing Co-permittee pursuant to this Agreement. A
withdrawing Co-permittee will remain obligated under Paragraphs 7 and 8 of this
Agreement and will not assert participation in this Agreement as grounds for
disqualification of counsel or experts of any Co-permittee and agrees to waive any
conflict that may be created between Co-permittees and/or their counsel and experts
as a result of this Agreement. A withdrawing Co-permittee will have no other
obligation under this Agreement, with the exception of its share of costs incurred
through the date of its withdrawal. Upon the withdrawal of any Co-permittee, the
remaining Co-permittees shall continue to share costs and expenses in the resultant
number of equal shares.
10. Breach. Co-permittees, and each of them, shall have the right, in the event of
any breach of any agreement or covenant contained herein by the other parties, to
exercise all of the rights and remedies, and to maintain any actions at law or suit in
equity or other proper proceedings to enforce the curing of such breach of agreement
or covenant. Damages, if any, arising from any breach of this Agreement shall be
Page 4 of 27 Memorandum of Understanding
limited to the amount due and owing under the cost sharing mechanism set forth in
Sections 5 and 6, above, at the time of the alleged breach.
11. Notices. Unless otherwise specifically permitted by this MOU, all notices or
other communications required or permitted under this MOU shall be in writing, and
shall be personally delivered or sent by registered or certified mail, postage prepaid,
return receipt requested, or sent by telecopy, provided that the telecopy cover sheet
contain a notation of the date and time of transmission, and shall be deemed
received: (i) if personally delivered, upon the date of delivery to the address of the
person to receive such notice, (ii) if mailed in accordance with the provisions of this
paragraph, two (2) business days after the date placed in the United States mail, (iii)
if mailed other than in accordance with the provisions of this paragraph or mailed
from outside the United States, upon the date of delivery to the address of the person
to receive such notice, or (iv) if given by telecopier during business hours when
delivered can be confirmed, when delivered. Notices shall be given at the following
addresses:
To County of San Diego:
Attn: Walter F. Ekard
County Chief Administrative Officer
1600 Pacific Highway, Room 209
San Diego, CA 92101
Telephone: 619-531-5250
Facsimile: 619-557-4060
To City of Carlsbad: Attn: Lisa Hildabrand, Interim City Manager
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Telephone: 760-434-2821
Facsimile 760-720-9461
To City of Chula Vista:
Attn: David Garcia, City Manager
276 Fourth Avenue
Chula Vista, CA 91910
Telephone: 619-691-5031
Facsimile: 619-585-5774
To City of Coronado:
Attn: Mark Achenduszko, City Manager
1825 Strand Way
Coronado, CA 92118
Telephone: 619-522-7335
Facsimile: 619-522-7846
Page 5 of 27 Memorandum of Understanding
To City of Del Mar:
Attn: Lauraine Brekke-Esparza, City Manager
1050 Camino del Mar
Del Mar, CA 92014
Telephone: 858-755-9313
Facsimile: 858-755-2794
To City of El Cajon:
Attn: Kathi Henry, City Manager
200 E. Main Street
El Cajon, CA 92020
Telephone: 619-441-1716
Facsimile: 619-441-1770
To City of Encinitas Attn: Phillip E. Cotton, City Manager
505 S. Vulcan Avenue
Encinitas, CA 92024
Telephone: 760-633-2610
Facsimile: 760-633-2627
To City of Escondido:
Attn: Clay Phillips, City Manager
201 North Broadway
Escondido, CA 92025
Telephone: 760-839-4578
Facsimile: 760-839-4578
To City of Imperial Beach
Attn: Gary R. Brown, City Manager
825 Imperial Beach Blvd.
Imperial Beach, CA 91932
Telephone: 619-423-8303
Facsimile: 619-628-1395
To City of La Mesa
Attn: Sandra L. Keri, City Manager
8131 Allison Avenue
La Mesa, CA 91941
Telephone: 619-667-1105
Facsimile: 619-667-1131
To City of Lemon Grove:
Attn: Graham Mitchell, City Manager
3232 Main Street
Lemon Grove, CA 91945
Telephone: 619-825-3800
Facsimile: 619-825-3804
Page 6 of 27 Memorandum of Understanding
To City of National City:
Attn: Chris Zapata, City Manager
1243 National City Blvd
National City, CA 91950
Telephone: 619-336-4240
Facsimile: 619-336-4327
To City of Oceanside:
Attn: Peter A. Weiss, Interim City Manager
300 North Coast Hwy
Oceanside, CA 92054
Telephone: 760-735-4365
Facsimile: 760-435-3078
To City of Poway:
Attn: Rod Gould, City Manager
P.O. Box 789
13325 Civic Center Drive
Poway, CA 92064
Telephone: 858-668-4500
Facsimile: 858-668-1207
To City of San Diego: Attn: Gerald R. Sanders, Mayor
Office of the Mayor
City of San Diego
202 “C: Street, 11th Floor
San Diego, CA 92101
To City of San Marcos:
Attn: Paul Malone, City Manager
1 Civic Center Drive
San Marcos, CA 92069
Telephone: (760) 744-1050, ext. 3114
Facsimile: (760) 744-7543
To City of Santee:
Attn: Keith Till, City Manager
10601 Magnolia Avenue
Santee, CA 92071
Telephone: 619-258-4100 x100
Facsimile: 619-562-0649
To City of Solana Beach:
Attn: David Ott, City Manager
635 S. Hwy 101
Solana Beach, CA 92075
Telephone: 858-720-2431
Facsimile: 858-792-6513
Page 7 of 27 Memorandum of Understanding
To City of Vista:
Attn: Rita Geldert, City Manager
600 Eucalyptus Avenue
Vista, CA 92084
Telephone: 760-726-1340 x1401
Facsimile: 760-639-6132
12. No Employment, Partnership. Nothing contained in this Agreement shall be
deemed or construed to create an employment, partnership, joint venture or any
other similar relationship between the parties hereto or cause Co-permittees to be
responsible in any way for the debts or obligations of other individual Co-permittees,
or any other person.
13. Authority to Sign. Each Co-permittee warrants and represents that the
persons executing this MOU on its behalf has full authority to do so and to bind such
Co-permittee to perform pursuant to the terms and conditions of this Agreement.
14. Counterparts. This Agreement may be signed in multiple counterparts with the
same force and effect as if all original signatures appeared on one copy; and in the
event this Agreement is signed in counterparts, each counterpart shall be deemed an
original and all of the counterparts shall be deemed to be one agreement.
15. Severability. If any portion of this Agreement shall be held by a court of
competent jurisdiction to be invalid, void or otherwise unenforceable, the remaining
provisions shall remain enforceable to the fullest extent permitted by law if
enforcement would not frustrate the overall intent of the parties (as such intent is
manifested by all provisions of the Agreement, including such invalid, void or
otherwise unenforceable portion).
16. Attorneys’ Fees. Should any litigation (including any proceedings in a
bankruptcy) or arbitration be commenced between the parties hereto or their
representatives concerning any provision of this Agreement or the rights and duties
of any person or entity hereunder, the party or parties prevailing in such litigation or
arbitration shall be entitled, in addition to such other relief as may be granted, to the
attorneys’ fees and court or arbitration costs incurred by reason of such litigation or
arbitration, including attorneys’ fees and experts’ fees incurred in preparation for or
investigation of any matter relating to such litigation or arbitration.
17. Applicable Law. This Agreement shall be construed in accordance with, and
governed by, the laws of the State of California.
18. Headings. The headings in this Agreement are inserted only as a matter of
convenience, and in no way define, limit, extend or interpret the scope of this
Page 8 of 27 Memorandum of Understanding