Meeting Date: 4 December 2012
Prepared by: Sharon Friedrichsen,
Public Services Manager
City Council
Agenda Item Summary
Name: Consideration of a Resolution authorizing the City Administrator to enter into a Memorandum of Agreement (MOA) with the Monterey Regional Water Pollution Control Agency (MRWPCA) to manage the City's ASBS Special Protections Water Quality Monitoring Program and authorizing a budget adjustment to cover the costs of the program.
Description: The City is required by State law to participate in a regional monitoring program to monitor water quality in the Carmel Bay Area of Special Biological Significance (ASBS). The MRWPCA will manage the consultant services contracts to perform the required monitoring for the next two years.
Overall Cost:
City Funds: Approximately $70,000 for Year One and $80,000 for Year Two.
Staff Recommendation: Adopt the Resolution.
Important Considerations: Carmel Bay is designated as an Area of Special Biological Significance (ASBS) by the State Water Resources Control Board (SWRCB). The California Ocean Plan prohibits the discharge of both point and nonpoint source waste into Areas of Special Biological Significance, unless the SWRCB grants an exception.
The SWRCB adopted the ASBS Special Protections on 20 March 2012, containing monitoring requirements with which each of the dischargers must comply, commencing in the winter of 2012. The proposed MOA will allow the City to begin monitoring this winter to avoid being out of compliance with the Special Protection requirements. The MOA was reviewed by the City Attorney.
Decision Record: N/ A
Reviewed by:
Jason Stilwell, City Administrator Date
CITY OF CARMEL-BY-THE-SEA
STAFF REPORT
TO: MAYOR BURNETT AND MEMBERS OF THE CITY COUNCIL
FROM: SHARON FRIEDRICHSEN, PUBLIC SERVICES MANAGER
THROUGH: JASON STILWELL, CITY ADMINISTRATOR
DATE: 4 DECEMBER 2012
SUBJECT: CONSIDERATION OF A RESOLUTION AUTHORIZING THE CITY ADMINISTRATOR TO ENTER INTO A MEMORANDUM OF AGREEMENT WITH THE MONTEREY REGIONAL WATER POLLUTION CONTROL AGENCY (MRWPCA) TO MANAGE THE CITY'S ASBS SPECIAL PROTECTIONS WATER QUALITY MONITORING PROGRAM AND AUTHORIZING A BUDGET ADJUSTMENT TO COVER THE COSTS OF THE PROGRAM
RECOMMENDED MOTION
Authorize the City Administrator to enter into a Memorandum of Agreement (MOA) with the Monterey Regional Water Pollution Control Agency (MRWPCA) to manage the City's ASBS Special Protections Water Quality Monitoring Program and authorize a budget adjustment to cover the costs of the program.
BACKGROUND and EVALUATION
Storm Water Pollution: During a storm event, rain water runoff occurs and the rainwater either seeps into the ground or flows into adjacent water bodies, otherwise known as receiving waters. As storm water travels over impervious surfaces such as pavement, sidewalks and compacted soil, pollutants often are picked up and transported with the runoff to the receiving waters. Common pollutants include pesticides, fertilizers, oils, metals, salt, litter, debris and sediment. These pollutants have significant impacts on the health of receiving waters and can affect animal, plant and human life.
Regulatory Background: In 1987, the Federal Clean Water Act (FCWA) was amended to address management and control of storm water. The National Pollutant Discharge Elimination System (NPDES) was created by the Environmental Protection Agency (EPA) to implement the FCW A. The EPA has delegated its authority to administer the NPDES program to the California State Water Resources Control Board (SWRCB). The SWRCB, in tum, has delegated much of its enforcement authority to several regional water quality control boards (R WQCB) throughout the State. Each jurisdiction must obtain an NPDES
permit that governs its storm water operations. Permittees that are local municipalities or counties are often referred to as Traditional MS4s. In 2002, a Memorandum of Agreement was signed by the City, other Peninsula cities and Monterey County to share in the costs and responsibilities of the MS4 permits.
In addition to Federal storm water standards, the State also adopted water quality objectives and standards, which are outlined in the California Ocean Plan (Plan). The Plan serves as the basis for regulating waste discharges into coastal waters and prohibits waste discharges, including storm water, into 33 designated Areas of Special Biological Significance (ASBS), including Carmel Bay, unless an exception is granted.
In March 2012, the SWRCB adopted the ASBS Special Protections Exception that applies to all jurisdictions that discharge into an ASBS. The Special Protections contain prescriptive water quality monitoring requirements, which are designed to eliminate all dry weather runoff into an ASBS, to ensure that wet weather flows do not alter "natural water quality" and to ensure that marine life is protected. The City received a grant from the SWRCB to address dry weather flows to Carmel Beach and is in the process of implementing minor improvements (bulk heads on existing outfalls) to the existing storm water infrastructure.
Memorandum of Agreement: Similar to the MS4 efforts, a regional MOA was developed
to address the ASBS monitoring requirements. Twelve entities, including the City, will
contract with the Monterey Regional Water Pollution Control Agency (Agency) to serve as
the program administrator. 1 Duties of the program administrator are contained within
Exhibit B of the MOA and include managing the storm water and receiving water monitoring
requirements contained within the Scope of Work.
Participating entities serve on a management committee and oversee the work of the program
administrator. The Agency will consider approval of the MOA at its November 26, 2012
meeting. Upon approval, the MOA will become effective for two years beginning in
December 2012 to satisfy the ASBS monitoring requirements and timeframe (regional
monitoring is two years while individual/ non-regional monitoring is five years). Staff
recommends entering into the proposed MOA due to reduced monitoring requirements, cost
and other efficiencies of regional monitoring.
FISCAL IMPACT
Staff was aware of significant monitoring costs associated with the ASBS Special Protections
and included $47,000 in the Fiscal Year 2012113 and 2013114 budgets. Revised costs are
now approximately $70,000 in Year One and $80,000 in Year Two. These costs, however,
are subject to change due to such factors as the number of participating agencies and actual
costs of program administration and monitoring. The Council must authorize a budget
adjustment to Account #76055 to cover these costs, although the City anticipates some State
funding (not associated with storm water) that was not expected when the budget was
adopted. This increased revenue will offset the increased storm water expenditures in order
to maintain a balanced budget.
RECOMMENDATION
Adopt the attached Resolution
Attached: Memorandum of Agreement
1 Entities include the cities of Cannel-by-the-Sea, Monterey and Pacific Grove; the counties of Marin, Monterey and San Mateo;
Stanford University; Monterey Bay Aquarium; Pebble Beach Company; California Department of Parks and Recreation and
Department of Transportation; and the National Park Services. Federal and state participation is pending.
77
CITY OF CARMEL-BY-THE-SEA
CITY COUNCIL
RESOLUTION 2012-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARMEL-BY-THE-SEA AUTHORIZING THE CITY ADMINISTRATOR TO ENTER INTO
A MEMORANDUM OF AGREEMENT WITH THE
MONTEREY REGIONAL WATER POLLUTION CONTROL AGENCY (MRWPCA)
TO MANAGE THE CITY'S ASBS SPECIAL PROTECTIONS WATER QUALITY
MONITORING PROGRAM AND A BUDGET ADJUSTMENT TO
COVER THE COSTS OF THE PROGRAM
WHEREAS, The City of Carmel-by-the-Sea is a unique coastal community that prides itself in
its environmental resources; and
WHEREAS, the California Ocean Plan prohibits the discharge of both point and nonpoint
source waste into Areas of Special Biological Significance (ASBS), unless the State Water Resources
Control Board (SWRCB) grants an exception.
WHEREAS, the State Water Resources Control Board adopted the ASBS Special Protections
on March 20, 2012, containing monitoring requirements with which the City of Carmel is required to
comply with commencing in the winter of2012; and
WHEREAS, the City has participated in the development of a Regional Monitoring Program
designed to efficiently and economically comply with the Special Protections requirements; and
WHEREAS, the proposed Memorandum of Agreement designates the Monterey Regional
Water Pollution Control Agency (MRWPCA) as the project administrator.
NOW, THEREFORE, BE IT RESOLVED THAT THE CITY COUNCIL OF THE CITY OF
CARMEL-BY-THE-SEA does hereby:
1. Authorize the City Administrator to enter into a Memorandum of Agreement with the
Monterey Regional Water Pollution Control Agency to manage the City's ASBS Special
Protections Water Quality Monitoring Program; and
2. Amend the FY 2012/13 budget as provided in Exhibit A of this resolution to increase
Expenditure Account #76055 (Storm Water) by $23,000 and increase Revenue Account
#01-37801 (Motor Vehicle In-Lieu) by $23,000.
78
PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF CARMEL-BYTHE-
SEA this 4th day of December 2012 by the following roll call vote:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
ATIEST: SIGNED,
Heidi Burch, City Clerk JASON BURNETT, MAYOR
79
Adjust II
1213-03
Department
Public Works
Gen'l Revenue
Name
Account
01-76055
0 1-37801
Date
Account Description
Stormwater Runoff Program
Motor vehicle in-lieu
________________ Content Approved by Admin Services
----------------Recommended by City Administrator
________________ Authorized by City Council
Exhibit A
Fiscal Year 2012-2013
Budget Adjustment Requests
December 4, 2012
Amount Reason for Adj ustment
23,000.00 Increased ASBS monitoring costs
23,000.00 Unanticipated revenue
Current Budget
47,000.00
Proposed Adjusted Budget
70,000.00
23,000.00
80
MEMORANDUM OF AGREEMENT
CENTRAL COAST REGIONAL AREAS OF SPECIAL
BIOLOGICAL SIGNIFICANCE DISCHARGERS MONITORING
PROGRAM
This Memorandum of Agreement (AGREEMENT), dated, for reference purposes only,
December 1, 2012, is made by and between the MONTEREY REGIONAL WATER
POLLUTION CONTROL AGENCY, hereinafter referred to as "AGENCY," a Joint
Powers Authority (JP A) organized under the laws of the State of California, and the
following entities, each of which is hereinafter referred to as "DISCHARGER" or
collectively as "DISCHARGERS":
CITY OF PACIFIC GROVE, a municipal corporation ofthe State of California;
CITY OF MONTEREY, a municipal corporation of the State of California;
CITY OF CARMEL-BY-THE-SEA, a municipal corporation of the State of California;
COUNTY OF MONTEREY, a political subdivision ofthe State of California;
COUNTY OF SAN MATEO, a political subdivision of the State of California;
COUNTY OF MARIN, a political subdivision of the State of California;
PEBBLE BEACH COMPANY, a California general partnership;
THE BOARD OF TRUSTEES OF THE LELAND STANFORD JUNIOR
UNIVERSITY, THROUGH ITS HOPKINS MARINE STATION, a trust with corporate
powers under the laws of the State of California;
MONTEREY BAY AQUARIUM, 501(c)(3) nonprofit incorporated in the State of
California
CALIFORNIA DEPARTMENT OF TRANSPORTATION (Caltrans), an executive
department of the State of California
The AGENCY and the above-mentioned entities may also hereinafter be collectively
referred to as "PARTIES" or individually as "PARTY."
RECITALS:
A. The California Ocean Plan ("Ocean Plan") prohibits the discharge of both point
and nonpoint source waste into Areas of Special Biological Significance
("ASBS"), unless the State Water Resources Control Board ("SWRCB") grants
an exception.
B. The DISCHARGERS have been determined to have direct or indirect storm water
discharges into the Julia Pheiffer Burns ASBS, Point Lobos ASBS, Carmel Bay
ASBS, the Pacific Grove ASBS, the Afio Nuevo ASBS, the James V. Fitzgerald
ASBS, the Duxbery Reef ASBS, the Double Point ASBS or the Point Reyes
Headlands ASBS
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C. The SWRCB has adopted "Special Protections for Selected Storm Water and
Nonpoint Source Discharges into Areas of Special Biological Significance," dated March
20, 2012, and adopted Resolutions No. 2011-0050/0051 , on October 18, 201l.These
documents are hereinafter referred to simply as the "Special Protections," and the
"Mitigated Negative Declarations"(MNDs). These Special Protections and MNDs
contain monitoring requirements with which each of the DISCHARGERS are required to
comply commencing in the winter of2012-2013.
C. D. In and for the mutual interest of the DISCHARGERS, the DISCHARGERS
wish to develop and implement a Regional Monitoring Program by entering into
this AGREEMENT for the purpose of cooperating to efficiently and economically
comply with the Special Protections and MNDs monitoring requirements.
NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:
Section 1. Incorporation of Recitals
1.1 The foregoing Recitals are incorporated into this AGREEMENT.
Section 2. Central Coast Regional ASBS Dischargers Monitoring Program
2.1 There is hereby established the Central Coast Regional ASBS Dischargers
Monitoring Program ("Program") that is intended to fulfill the DISCHARGERS'
respective discharge monitoring and obligations set forth in Section IV of the
Special Protections and the MND's.
Section 3. Effective Date and Term
3.1 The effective date of this AGREEMENT shall be the date it is duly executed by all
of the DISCHARGERS.
3.2 This AGREEMENT shall terminate on June 30,2015 unless extended, or
terminated earlier, pursuant to Section 8.2 or 8.3, by the DISCHARGERS.
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Section 4. Management Committee
4.1 A Management Committee consisting of one representative of each of the
DISCHARGERS is hereby created to provide for overall coordination, review, and
budget oversight with respect to the Program.
4.2 The Management Committee shall: provide technical oversight, direct and guide
the Program, review and approve the Program Budget, establish accounting and
auditing procedures related to the Program Budget, select consultant(s) or outside
contractor(s), and establish timelines and budgets for completion of Program tasks.
The Management Committee shall consider Special Protections monitoring and
MND monitoring compliance issues as its primary objective in approving Program
tasks and corresponding budgets compliance with Section IV of the Special
Protections and Monitoring requirements of the MNDs.
4.3 The Management Committee Bylaws (Exhibit A) shall govern the Management
Committee and its meetings.
4.4 Meetings of the Management Committee shall be subject to the California Brown
Act (Government Code section 54950 et seq.).
Section 5. Administrator
5.1 There is hereby created the position of Administrator to administer and implement
this AGREEMENT and to carry out the responsibilities assigned to the
Administrator herein and as outlined in Responsibilities of Administrator (Exhibit
B).
5.2 AGENCY shall serve as the initial Administrator for the Program.
5.3 AGENCY may withdraw as the Administrator upon the provision of ninety days'
(90) days written notice to the Management Committee. Such notice of withdrawal
shall be effective to terminate AGENCY's rights and obligations under this
AGREEMENT. The Management Committee may replace the AGENCY and
select a new Administrator upon the provision of ninety days (90) written notice to
AGENCY. Any new entity that may become the Administrator must assent to the
terms of this AGREEMENT. In either event, the Administrator's compensation
shall be prorated.
5.4 Work assignments shall be made to the Administrator by the Management
Committee and not by individual DISCHARGERS.
5.5 Other than as provided for in the Program, the Administrator shall not be
responsible for providing program management services related to individual
DISCHARGER permit programs.
5.6 The Administrator shall be paid from Program Funds in accordance with the
adopted Program Budget for providing the services described herein.
5.7 The Administrator shall be the treasurer of the Program Funds. The Administrator,
in accordance with generally-accepted accounting principles, shall keep the
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Program Funds segregated from any other funds administered by the Administrator,
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.
Any unauthorized expenditures, including, but not limited to, expenditures in
excess of the annual projected budget, made by Administrator shall be payable by
the Administrator or AGENCY. DISCHARGER shall have no liability for
unauthorized expenditures made by Administrator.
5.8 In conjunction with preparing the proposed Program Budget each year, the
Administrator will include a proposed Administration component of the Program
Budget and present it to the Management Committee for its approval. The
Administration component that is approved by the Management Committee shall
be the maximum amount of funds the Administrator may expend without receiving
additional funding approval from the Management Committee.
5.9 Within 30 days from the close of the Fiscal Year, the Administrator shall cause an
independent annual audit of the accounts and records by a Certified Public
Accountant in Compliance with California Government Code section 6505 and
Generally Accepted Accounting Principles.
5.10 The Administrator shall be reimbursed by the Program Fund at a rate of seven
percent of the annual Program Budget for direct costs and indirect costs to
administer this AGREEMENT and carry out the Program. Direct and indirect costs
are defined in the Program Budget Guidelines and Cost Share (Exhibit C).
5.11 After the Program has been in operation for one full year, the Administrator will
review actual Program administration and implementation costs. Any difference
between the Administration components of the approved Program Budget charged
to the DISCHARGERS and the actual costs will be either refunded or charged to
the DISCHARGERS in accordance with each DISCHARGER'S Percentage
Participation, as set forth in Program Budget Guidelines and Cost Share (Exhibit
C).
5.12 In the event that the Administrator withdraws as Administrator, or in the event that
the Management Committee wishes to select a new Administrator, a
DISCHARGER may serve as a successor Administrator. Any DISCHARGER
willing to serve as successor Administrator may be nominated by another
DISCHARGER. Selection of an Administrator shall be by majority vote of the
Management Committee.
Section 6. Program Budget, Program Fund, and Annual Assessments
6.1 The Management Committee shall adopt a budget for each winter storm season (the
"Program Budget"). The Program Budget shall be prepared and administered as
described in the attached Program Budget Guidelines and Cost Share (Exhibit C).
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6.2 Not later than sixty(60) days receipt of an invoice by the Administrator, the
DISCHARGERS shall each pay an annual assessment("Annual Assessment") into
a fund ("Program Fund") maintained by the Administrator for the purpose of
paying Program expenses. The Annual Assessment for each DISCHARGER shall
be detailed and reflected in the Program Budget. The Annual Assessment for each
DISCHARGER shall be determined as set forth in the Program Budget Guidelines
and Cost Share (Exhibit C). Should any DISCHARGER fail to pay the Annual
Assessment within sixty (60) days after being invoiced by the Administrator, the
DISCHARGER's participation in this AGREEMENT shall be terminated, and the
terminated DISCHARGER will bear the full responsibility for its compliance with
the monitoring requirements of the Special Protections commencing on the date its
participation is terminated. In such event the DISCHARGER shall forfeit its
contributed share of Program Funds, if any.
6.3 The Program Fund shall be maintained and managed in trust by the Administrator
solely for purposes of the Program. The Management Committee shall determine
the type of account in which the Program Fund shall be deposited. All Program
expenditures required to implement the approved Special Protections Scope of
Work shall be paid out of the Program Fund. The Administrator shall be
authorized to make expenditures for purchase of services or materials in an amount
not-to-exceed $5,000 not already authorized by contract and not more than twice
per fiscal year; Expenditures greater than $5,000 shall require prior approval of the
Management Committee.
6.4 Except as provided in Section 8.3 and 8.4 (regarding termination of
DISCHARGER status and termination of this AGREEMENT), any ending balance
in the Program Fund at the close of each fiscal year shall, at the election of each
DISCHARGER and based upon that DISCHARGER'S Percentage Participation, be
disbursed to that DISCHARGER, or credited to that DISCHARGER'S Annual
Assessment for the subsequent winter storm season.
6.5 Upon approval of a new member as set forth in Section 8.1, the Management
Committee shall revise the Annual Assessment for each DISCHARGER consistent
with the method set forth in Program Budget Guidelines and Cost Share (Exhibit C)
taking into account the new member.
Section 7. Additional Rights and Duties of the DISCHARGERS
7.1 In addition to participation in the Management Committee, each of the
DISCHARGERS agrees to perform the following duties:
7.1.1 Participate in Management Committee meetings and activities, and other
meetings required of the DISCHARGERS;
7 .1.2 Implement and comply with individual ASBS program requirements not
covered by this AGREEMENT.;
7.1.3 Provide the requisite reports to the Administrator for purposes of complying
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with the joint reporting and compliance mandates applicable to the Special
Protections and MNDs and the status Program implementation.
7.2 This AGREEMENT does not restrict the DISCHARGERS from the ability to
individually (or collectively) request modifications of or to otherwise challenge,
administratively, through litigation, or otherwise, Special Protections or MNDs or
other requirements to the extent that a requirement affects an individual
DISCHARGER(or group ofDISCHARGERS).
Section 8. Additional Parties, Early Termination of Dischargers, and Third Party
Data Sharing
8.1 Subject to a majority vote of the DISCHARGERS, any agency, corporation or
individual responsible for discharges to the State of California's Areas of Special
Biological Significance within Regional Water Quality Control Boards (RWQCB)
Regions2 or 3may become a member of the Program and a party to this
AGREEMENT (a "New Party"). New Parties shall execute a copy of this
AGREEMENT through their appropriate officials pursuant to the authority
conferred by the governing body of the New Party. The Representative of the New
Party shall file with the Administrator a duly executed copy of the AGREEMENT.
Upon approval, each New Party shall pay an Annual Assessment as determined by
the Management Committee. In addition to paying the Annual Assessment, each
New Party shall also pay an appropriate buy-in fee as established by the
Management Committee, intended to reimburse the Program Fund for the New
Party's share of costs that the DISCHARGERS have expended up to the date of the
New Party's membership.
8.2 Upon unanimous approval of all Management Committee Members, the
DISCHARGERS may enter into agreements with third-party state or federal
agencies for the purpose of sharing data. These agencies shall not become a party to
this AGREEMENT, shall not have representation on the Management Committee,
and shall not be part of the cost-sharing described in the Program Budget
Guidelines and Cost Share (Exhibit C). Such agreements shall be for the sole
objective of data sharing.
8.3 Any DISCHARGER may terminate its participation in this AGREEMENT by
giving the Management Committee at least thirty (30) days written notice. If a
DISCHARGER terminates its participation, the terminating DISCHARGER will
bear the full responsibility for its compliance with the monitoring requirements of
the Special Protections commencing on the date it terminates its participation.
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 DISCHARGER's contributed share of the Program Budget for the
fiscal year in which the termination occurs. The cost allocations for the remaining
DISCHARGERS shall be recalculated for the following fiscal year by the
DISCHARGERS without the withdrawing DISCHARGER'S participation.
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8.4 This AGREEMENT shall terminate immediately and without further notice should
sufficient DISCHARGERS terminate their participation pursuant to Section 8.3
such that only a single DISCHARGER has not terminated its participation
(Remaining DISCHARGER). Unless the AGREEMENT terminates pursuant to
this section at the close of a fiscal year, any funds remaining in the Program Budget
shall be forfeited to the Remaining DISCHARGERS to be used solely and
exclusively in furtherance of the Remaining DISCHARGER's monitoring
requirements pursuant to the Special Protections.
Section 9. General Provisions
9.1 Final Agreement. This AGREEMENT supersedes any prior agreement among the
PARTIES regarding the Program, but does not supersede any other agreements
between any ofthe PARTIES.
9.2 Amendment. This AGREEMENT may be amended only by written agreement of
all PAR TIES. All PAR TIES agree to bring any proposed amendment to this
Agreement to their respective Council or Board, as applicable, within two (2)
months following acceptance of the proposed amendment by the Management
Committee.
9.3 Execution. This AGREEMENT may be executed and delivered in any number of
copies ("counterparts") by the DISCHARGERS, including by means of facsimile.
When each DISCHARGER has signed and delivered at least one (1) counterpart to
the Administrator, 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 PAR TIES hereto.
9.4 Liability. No PARTY shall, by entering into this AGREEMENT, participating in
the Management Committee, or serving as the Administrator, assume or be deemed
to assume responsibility for any other PARTY in complying with the requirements
of the Special Protections. This AGREEMENT is intended solely for the
convenience and benefit of the PARTIES 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 Environmental Protection Agency, the SWRCB, and the
RWQCB, or any person acting on their behalf or in their stead.
In lieu of and notwithstanding the pro rata risk allocation which might otherwise be
imposed between the DISCHARGERS pursuant to Government Code Section
895.6, the DISCHARGERS agree that all losses or liabilities incurred by a
DISCHARGER shall not be shared pro rata, but instead, the DISCHARGERS
agree that pursuant to Government Code Section 895.4, each of the
DISCHARGERS shall fully defend, indemnify, and hold harmless each of the other
DISCHARGERS from any claim, expense, or cost, damage, or liability imposed for
injury, including, but not limited to, as defined by Government Code Section
81 0.8,occurring by reason of the negligent acts or omissions or willful misconduct
of the indemnifying DISCHARGER, its officers, agents, or employees, under or in
CENTRAL COAST REGIONAL AREAS OF SPECIAL BIOLOGICAL SIGNIFICANCE DISCHARGERS
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connection with or arising from any work, authority, or action taken under this
AGREEMENT, including but not limited to any non-compliance by a
DISCHARGER with its obligations under the Special Protections or MNDs. No
DISCHARGER, nor any officer, Councilmember, 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 any other
DISCHARGERS, their officers, Council members, Board members, employees, or
agents, under or in connection with or arising from any work, authority, or actions
taken under this AGREEMENT, including but not limited to any non-compliance
by a DISCHARGERS with its obligations under the Special Protections or MNDs.
Notwithstanding the above, if the Administrator is negligent or intentionally
wrongful in the performance of its duties under this AGREEMENT, it will be liable
to the DISCHARGERS for any consequences of such negligent or intentionally
wrongful performance.
9.5 Venue. Venue for any actions brought under this Agreement shall be as prescribed
by California or Federal law.
9.6 Notices: Unless otherwise specified herein, all notices or demands required under
this Agreement shall be in writing and shall either be hand-delivered or mailed by
first class registered or certified mail, postage prepaid, addressed to the PARTIES
to the following addresses and to the attention of the person named.
[List names, titles and addresses]
9.7 Governing Law: The terms of this Agreement are governed by, and shall be
construed in accordance with, the laws ofthe State of California.
9.8 Severability: If any provision of this Agreement is held to be invalid, for any
reason, by a court oflaw, the remaining provisions of this Agreement shall not be
affected thereby and shall continue in full force and effect.
9.9 Authorization: Each individual signing this Agreement warrants that he/she is
authorized to do so on behalf of the entity on whose behalf he/she is signing and
that they have the authority to bind that entity/individual to all the terms of this
AGREEMENT, unless the individual's signature block indicates a different
purpose for their signature.
9.10 Waiver: No waiver by the PARTIES of any breach of any provision of this
Agreement shall constitute a waiver of any other breach or of such provision of this
Agreement.
9.11 Entire Agreement: This Agreement, including Exhibits A, B, and C, constitutes the
complete and exclusive understanding between the PARTIES which supersedes all
previous agreements, written or oral, regarding the subject matter of this
Agreement. No changes, modifications or amendments to this Agreement
(including Exhibit A, B, and/or C) shall be valid unless they are in writing and duly
executed by authorized representatives of all the PAR TIES.
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IN WITNESS WHEREOF, the PARTIES hereto have executed this AGREEMENT as of
the dates shown below
[Insert signature blocks]
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EXHIBIT "A"
CENTRAL COAST REGIONAL
AREAS OF SPECIAL BIOLOGICAL SIGNIFICANCE
DISCHARGERS MONITORING PROGRAM
MANAGEMENT COMMITTEE BYLAWS
The Central Coast Regional Areas of Special Biological Significance Dischargers
Monitoring Program Management Committee shall be governed by the following
Bylaws.
1. Representation. Each DISCHARGER shall designate a representative to attend meetings
in person, by telephone or via a web-based meeting of the Management Committee, and
may designate alternates as set forth in this AGREEMENT. If a DISCHARGER'S
representative is unable to attend a meeting, one of DISCHARGER'S alternates shall
attend.
2. Voting. Each DISCHARGER shall have one vote and the Management Committee
representative or alternate shall vote on behalf of the DISCHARGER unless stated
otherwise in this AGREEMENT. Voting on all matters shall be on a voice vote unless
a roll call vote is requested by any member in attendance or is required pursuant to
the Brown Act.
All actions taken by the Management Committee require the affirmative vote of a
majority of the Management Committee members entitled to vote. However, the
Program Budget, or any other matter having a financial impact on a DISCHARGER
not contemplated in the Program Budget, shall be approved by a unanimous vote of
the Management Committee.
3. Quorum. A majority of the Management Committee entitled to vote constitutes a
quorum for the transaction ofbusiness.
4. Officers. The officers of the Management Committee shall consist of a Chair and
Vice Chair. The Chair shall preside over all meetings of the Management Committee,
and may call special meetings as necessary upon one week of notice to all
DISCHARGERS. The Chair may vote on, and second any motion, but may not make
a motion. The Vice Chair shall perform the duties of the Chair in the Chair's absence.
In the first Fiscal Year the Administrator shall preside over the initial meeting of the
Management Committee, and the first order of business for the initial meeting of the
Management Committee shall be the election of the Chair and Vice Chair. The Chair
and Vice Chair shall take up their duties immediately upon election.
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In subsequent Fiscal Years the positions of Chair and Vice Chair shall be filled by
election annually at the Management Committee's meeting in January. If either
position becomes vacant for any reason, an election shall be held to fill the position(s)
at the next meeting of the Management Committee. Should both positions be vacant
at the same time, the Administrator shall serve as Chair until a Chair is elected by the
Management Committee.
5. Meeting Schedule. Regular meetings will be held at a frequency commensurate with
the workload of the Management Committee at pre-arranged dates.
6. Starting Time. Meetings will start promptly at the times designated in the meeting
notices. Representatives shall endeavor to notify the Administrator whether they will
be late or unable to attend.
7. Limitation of Discussion. Discussion on any particular matter by either Management
Committee members or by any member of the general public may be limited at the
discretion of the chair to such length of time as the chair may deem reasonable under the
circumstances.
8. Administrator. The Administrator shall serve as Secretary. The Secretary shall, upon
consultation with the Chair, prepare an agenda for each meeting, keep and publish
minutes for each meeting (which shall be approved by the Management Committee at
the subsequent meeting), prepare and post any notices as may be required by law, and
have custody of all documents relating to the Management Committee.
The Administrator shall also serve as Treasurer. The Treasurer shall manage the
Program Fund as set forth in the AGREEMENT.
9. New Members. New members may be added to the Management Committee as set
forth in Section 8.1 ofthis AGREEMENT.
10. Bylaws. The information set forth in these Bylaws shall be deemed sufficient to serve
as the Bylaws for the Management Committee, subject to approval by the
DISCHARGERS.
11. Conduct of Meetings. The meetings are to be guided by the principles ofRobert's
Rules of Order. The Chair, upon advice of counsel, shall decide upon all questions of
order.
12. Program Attorney. The Management Committee may select an attorney or law firm
("Program Attorney") to provide legal advice to the Management Committee on
matters involving the Program. The Program Attorney may be the attorney of record
for one of the DISCHARGERS, so long as such representation is disclosed and any
conflicts of interest are resolved. The Program Attorney may provide such services
under separate contract with any DISCHARGER or DISCHARGERS, but shall
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provide advance notification to all DISCHARGERS before providing such services to
identify and resolve possible issues of conflict of interest. The Administrator may
assist in coordination of activities with the Program Attorney, and shall provide such
assistance as the Program Attorney may require, but shall not give direction to the
Program Attorney without prior authorization from the Management Committee.
13. Amendment. These Bylaws may be amended only by a majority vote of all
DISCHARGERS.
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EXHIBIT "B"
CENTRAL COAST REGIONAL
AREAS OF SPECIAL BIOLOGICAL SIGNIFICANCE
DISCHARGERS MONITORING PROGRAM
RESPONSIBILITIES OF ADMINISTRATOR
The Administrator shall have the following responsibilities:
1. The Administrator shall administer the AGREEMENT, and maintain an appropriate
book of accounts, which, among other things, shall specifically identify the costs
incurred in implementing the AGREEMENT. These records shall be subject to
inspection by any of the DISCHARGERS at all reasonable times.
2. Subject to the prior approval of the Management Committee, the Administrator may
enter into such agreements as necessary with public agencies or outside contractors
and consultants to carry out the Program objectives.
3. The Administrator shall serve as the Secretary and Treasurer to the Management
Committee.
4. The Administrator shall perform such other duties as may be required by the
Management Committee, including, but not limited to,:
a. Arranging for and conducting meetings of the Management Committee, including
preparation of agenda materials and meeting minutes.
b. Contracting with and managing the work of outside consultants and contractors to
perform related work if deemed necessary and appropriate by the Management
Committee. The Administrator shall act in a reasonable amount of time to execute
contracts with consultants and/or contractors, which have been requested and
approved by the Management Committee. The Administrator shall provide a copy
of any contract executed on behalf of the Program to any DISCHARGER or
person designated by any DISCHARGER or the Management Committee upon
request. The contract template shall require consultants to indemnify and name
all DISCHARGES as additional insured and shall meet minimum coverage
amounts for insurance policies. The Management Committee shall approve by a
majority vote the contract template to be used by the Administrator.
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EXHIBIT "C"
CENTRAL COAST REGIONAL
AREAS OF SPECIAL BIOLOGICAL SIGNIFICANCE
DISCHARGERS MONITORING PROGRAM
PROGRAM BUDGET GUIDELINES AND COST SHARE
Program Budget Guidelines
No later than December 1, 2012, the Administrator will prepare a Draft Program Budget
for Fiscal Year 2012-2013 and will submit it to the Management Committee for review.
For subsequent Fiscal Years, the Administrator will prepare a Draft Program Budget no
later than April 1 for the succeeding Fiscal Year. The Draft Program Budget shall include
a breakdown of the costs allocated to each DISCHARGER, in accordance with the Cost
Sharing table below. The Administrator will revise the Draft Program Budget, as
appropriate, to address concerns and comments from the Management Committee and the
Management Committee will then approve and adopt a final Program Budget by June 15
prior to the wet season in which monitoring will occur.
The Administrator and the DISCHARGERS recognize that the Program Budget will be
based on estimated costs, and that actual costs may differ from the budgeted amounts. If
it appears that costs will exceed the budgeted amounts, the Administrator will notify the
Management Committee as soon as the Administrator becomes aware of this and before
incurring costs in excess of the budgeted amounts. If the Management Committee
determines it is appropriate to have the Administrator incur additional costs above the
budgeted amounts, the Administrator will prepare and submit a budget revision request
for unanimous approval by the Management Committee. Time shall be allotted for
Management Committee representatives to request their respective governing Boards or
Councils to approve a budget increase request prior to approving a Program Budget
revision. Only after the Management Committee approves an increase in the Program
Budget will the Administrator incur costs in excess of the budgeted amounts. If there are
unspent funds left at the end of the fiscal year, the Administrator will return to each
DISCHARGER the unspent portion of that DISCHARGER'S payment, or credit that
amount to the DISCHARGERS annual assessment for the subsequent fiscal year, at
DISCHARGER's discretion.
The Administrator will establish a separate job-cost code in its accounting system, to
track the hours spent and out-of-pocket expenses directly related to performing work as
the Administrator, which will be charged to the Program Fund. The Administrator will
include in the Management Committee's meeting agenda reports a summary of the work
the Administrator has performed during the intervening time period, the total costs of that
work, and the portion of the cost allocated to each DISCHARGER. The portion of the
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cost allocated to the DISCHARGER will be calculated in accordance with the costsharing
approach outlined in the Cost-Sharing chart below.
The costs for the Program Administrator will consist of direct costs, as described below.
Cost-Sharing
The Cost Sharing table below shows how the annual Program Budget will be shared
amongst the DISCHARGERS based on the Scope of Work ("Exhibit D"). Each
DISCHARGER's Percentage Participation in the Program Budget components shall be as
set forth in the table below:
Percentage of Percentage of Percentage
Agency Outfalls outfalls 18" - Outfalls outfalls >36" Participation
18" - 36" 36" (Budget >36" (Budget in Budget
Component A) Component B) Component C
Pacific Grove 8 33.33% 1.5 13.5% 11.11%
City of Monterey 0 0.00% .5 0.05% 11.11%
Cannel 9 37.50% 1 11.11% 11.11%
PBC 3 12.50% 2 22.22% 11.11%
MBA 0 0.00% .5 0.05% 11.11%
Hopkins 0 0.00% .5 0.05% 11.11%
Marin County 0 0.00% 1 11.11% 11.11%
Monterey County 0 0.00% 1 11.11% 11.1 1%
San Mateo County 4 16.67% 1 11.11% 11.11%
Cal trans 0 0.00% 0 0.00% tbd
Total ~ 24 100% 9 100% 100%
fi"/ ~
Program Budget Components
The Program Budget shall be allocated into the following components:
Component "A" shall consist of all costs associated with Program Core Monitoring for
Runoff and Outfalls from 18" to <36 diameter.="diameter." p="p">Component "B" shall consist of all costs associated with Program Core Monitoring for
Outfalls from >36" diameter.
Component "C" shall consist of the Program Regional Monitoring, including large
discharge receiving water, reference site receiving water, rocky intertidal and
bioaccumulation monitoring, technical management and reporting, and Program
Adminstrator costs, to be assessed as a flat fee of 7% of the total Program Budget.
Caltrans shall participate only in the bioaccumulation and rocky intertidal Program
Regional Monitoring.
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Annual Assessment
Each DISCHARGER's Annual Assessment shall be the sum of the amounts calculated by
multiplying each component of the Program Budget by the DISCHARGER's Percentage
Participation in that component.
Administrator Costs
The Administrator costs will be assessed as a flat fee equal to 7 percent (7%) of the of the
total Program costs. Direct costs shall be tracked and accounted for each fiscal year and
provided in an independent annual audit in accordance with Section 5.9. Direct costs are
those which can be and are tracked through time cards, invoices, record keeping systems,
and other records that specifically allocate a cost to the Central Coast Regional Areas of
Special Biological Significance Dischargers Monitoring Program.
Direct costs include:
• Administrator labor costs charged at total actual costs (salary plus benefits).
• Supplies and other expenses incurred directly attributable to management of the
Program, charged at actual cost.
Indirect Costs
Indirect costs are defined as cost items that cannot reasonably be tracked.
Indirect costs include:
• The use of supplies and/or services not feasibly nor cost-effectively segregated,
such as disposables, shared office supplies, forms, paper, and postage.
• Information technology (hardware and software). Costs include depreciation as
well as internal and external maintenance, service agreements, software support,
and payroll processing.
• Purchasing services including purchasing staff time seeking bids, communicating
with vendors, preparing requisitions, and purchase orders.
• Use of office equipment (copiers, fax machines, calculators, typewriters,
computers) and their related repair, supplies, and maintenance.
• Centralized telephone system and use of cellular phones.
• Administration building costs (use, utilities, insurance).
• Administrative services including training programs (such as safety and sexual
harassment), employee assistance program, and general office support.
U: .GENERAL (NE\11)\City of Pacific Grove1ASBS Monitoring ProgramiMOA- ASBS Monitoring Program (rcv2).docx
