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Agreement No.D10 -071
1 AGREEMENT TO FUND IMPLEMENTATION OF WATER QUALITY MONITORING, REPORTING AND STUDIES TO
COMPLY WITH THE REQUIREMENTS OF THE
2 SAN GABRIEL RIVER /COYOTE CREEK TOTAL MAXIMUM DAILY LOADS FOR COPPER LEAD AND ZINC
3 THIS AGREEMENT, for
purposes of identification numbered D10 -071, is made and
4 entered into this re day of MAY 2011, by and between the County of Orange
5 (herein called COUNTY), the Orange County Flood Control District (herein called
6 DISTRICT), and the cities of Anaheim, Brea, Buena Park, Cypress, Fullerton, La Habra,
7 La Palma, Los Alamitos, Placentia, and Seal Beach, herein called WATERSHED CITY or
collectively WATERSHED CITIES). The COUNTY, DISTRICT, and WATERSHED CITIES may be
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referred to collectively as WATERSHED PERMITTEES or individually as WATERSHED
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PERMITTEE in this AGREEMENT.
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WITNESSETH
11 WHEREAS, Congress in 1987 through the Water
g g Quality Act amended Section 402 of
12 the Federal Clean Water Act (33 U.S.C.A. 1342(p)) to require the federal Environmental
13 Protection Agency to promulgate regulations for applications for permits for
14 stormwater discharges; and
15 WHEREAS, these permit regulations require the control of pollutants from
16 stormwater discharges by requiring a National Pollutant Discharge Elimination System
17 (herein called NPDES) permit which allows the lawful discharge of stormwater into
18 waters of the United States; and
19 WHEREAS, the California State Water Resources Control Board has delegated
20 ' authorit to the Regional Water
Y g Quality Control Boards for administration of the NPDES
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stormwater permits within the boundaries of its Region; and
22 WHEREAS, the Environmental Protection Agency Region IX adopted the Total Maximum
23 Daily Loads for Metals and Selenium San Gabriel River and Impaired Tributaries
24 (hereafter called TMDL) on March 26, 2007, which includes maximum loads for copper,
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Agreement No.D10 -071
1 lead, and zinc for Coyote Creek, which in turn is tributary to the San Gabriel River;
2 and
3 WHEREAS, the WATERSHED PERMITTEES are subject to NPDES stormwater permits issued
4 by the Regional Water Quality Control Board - Santa Ana Region (hereafter called
5 RWQCB -SAR); and
WHEREAS, the RWQCB -SAR adopted Order No. R8- 2009 -0030 to renew the Orange County
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Municipal Stormwater Permit No. CAS618030 (hereafter called NPDES PERMIT); and
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WHEREAS, the NPDES permit requires the development and implementation of a
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source control plan and monitoring program for copper, lead, and zinc in Coyote Creek
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(hereafter called SOURCE CONTROL AND MONITORING PLAN); and
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WHEREAS, the WATERSHED PERMITTEES are parties to the Stormwater Permit
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Implementation Agreement D02 -048 that provides the basis for municipal program
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cooperation under the NPDES stormwater permit issued by the RWQCB -SAR. This Agreement
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was approved on December 18, 1990 and was subsequently amended on October 26, 1993 by
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Amendment No. 1 and on May 31, 2002 by Amendment No. 2 (herein referred to
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collectively as PERMIT AGREEMENT); and
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WHEREAS, the WATERSHED PERMITTEES intend to equitably share the cost of water
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quality monitoring, reporting, and studies until the requirement to do so in the
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Coyote Creek watershed is rescinded by the RWQCB -SAR; and
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WHEREAS, the SOURCE CONTROL AND MONITORING PLAN may be modified from time to
20 time upon approval by the WATERSHED PERMITTEES and with the prior consent of the
21 RWQCB -SAR; and
22 WHEREAS the WATERSHED PERMITTEES have reached agreement on a funding formula,
23 which for the COUNTY and CITIES is based on the watershed land area and population
24 applied to the formula in the PERMIT AGREEMENT as shown in Exhibit A.
25 NOW, THEREFORE, in consideration of the foregoing, the WATERSHED PERMITTEES
agree as follows:
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Agreement No.D10 -071
1 Section 1. PURPOSE. This AGREEMENT is entered into for the purpose of funding
2 and performing water quality monitoring, reporting, research and studies related to
3 copper, lead, and zinc in the Coyote Creek watershed, as required by the TMDL.
Section 2. TERM. The term of this AGREEMENT shall commence upon approval and
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execution of this document by all WATERSHED PERMITTEES and shall continue until the
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requirement for performing monitoring, reporting, research and studies in the Coyote
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Creek watershed is rescinded by the RWQCB -SAR, unless sooner terminated as provided in
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Section 8.
8 Section 3. FUNDING. Exhibit A, which is attached and by this reference is made
9 a part hereof, presents the cost share allocation calculations for the WATERSHED
10 PERMITTEES. The individual cost shares for the WATERSHED PERMITTEES will be revised
11 once every year pursuant to the formula provided in Exhibit A, based on changes in
12 watershed land area and population. The percentage share shall be calculated by the
13 COUNTY OC Public Works Department, OC Watersheds, Environmental Resources Section from
14 population, land area and watershed area data. These calculations shall be completed
by February 15 of each year and shall be included in the annual budget proposal.
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Section 4. PROGRAM BUDGET AND COSTS. The COUNTY shall submit a scope of work and
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a budget for the following fiscal year to each of the WATERSHED PERMITTEES by February
17 15 of each year, commencing in 2011. The budget shall contain an estimate of all
18 planned expenditures and an estimate of the payment required from each WATERSHED
19 PERMITTEE for the following fiscal year.
20 1 The WATERSHED PERMITTEES shall be permitted to review and approve the program
21 !scope o= work and budget for the forthcoming year. Criteria for approval shall be
affirmative written responses from a majority of the WATERSHED PERMITTEES. The COUNTY
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and DISTRICT will constitute one approving party.
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The COUNTY shall be entitled to charge to the program all costs for direct
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labor, materials, equipment and outside contract services for costs associated with
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carrying out the approved g pproved scope of work. Recoverable costs will also include an
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Agreement No.D10 -071
1 overhead charge calculated by the County Auditor - Controller which includes OC
2 Watershed and OC Public Works Department overhead and County -wide cost allocation
3 plan.
Section 5. PAYMENTS. Within 30 calendar days of the effective date of this
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AGREEMENT OR 30 days after the start of the 2011 -12 fiscal year, whichever comes
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later, the COUNTY shall send the WATERSHED PERMITTEES an invoice which constitutes a
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deposit of their share of the budgeted costs for fiscal year 2011 -12 as identified in
7 Exhibit B, which is attached hereto and made a part hereof. Each of the WATERSHED
8 PERMITTEES shall pay the actual costs and the deposit within 45 calendar days of their
9 respective receipt of the invoice.
10 The COUNTY shall prepare a fiscal year end accounting within 60 calendar days of
11 the end of the fiscal year. If the fiscal year end accounting results in costs (net
12 of interest earnings) exceeding the sum of the deposits, the COUNTY shall seek
approval of the excess cost from the WATERSHED PERMITTEES and shall invoice each
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WATERSHED PERMITTEE for its prorated share of the excess cost up to the amount of the
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revised approved budget. Each WATERSHED PERMITTEE shall pay the billing within 45
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calendar days of the date of the invoice. If the fiscal year end accounting results
16 in the sum of the deposits exceeding costs (net of interest earnings), the excess
17 deposits will carry forward to reduce the billings for the following year.
18 After the initial billing for the program, the COUNTY shall invoice each
19 WATERSHED PERMITTEE for its annual deposit at the beginning of each fiscal year. Each
20 WATERSHED PERMITTEE shall pay the deposit within 45 calendar days of the date of the
invoice. Each WATERSHED PERMITTEE'S deposit shall be based on its prorated share of
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the approved annual budget, reduced by its prorated share of any surplus identified in
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the prior fiscal year end accounting.
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Interest earned on the WATERSHED PERMITTEES' deposits will not be paid to the
24 WATERSHED PERMITTEES, but will be credited against the WATERSHED PERMITTEES' share of
25 the program costs.
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Agreement No.D10 -071
1 Upon termination of the program, a final accounting shall be performed by the
2 COUNTY. If costs remaining after the deduction of interest costs exceed the sum of
3 the deposits, the COUNTY shall invoice each WATERSHED PERMITTEE for its prorated share
of the deficit. Each WATERSHED PERMITTEE shall pay the invoice within 45 calendar
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days of the date of the invoice. If the sum of the deposits, including interest,
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exceeds the costs, the COUNTY shall reimburse to each WATERSHED PERMITTEE its prorated
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share of the excess, within 45 calendar days of the final accounting.
7 Section 6. AMENDMENT. This AGREEMENT may be amended in writing only with the
8 unanimous written approval of the WATERSHED PERMITTEES.
9 Section 7. LIABILITY. It is mutually understood and agreed that, merely by the
10 virtue of entering into this AGREEMENT, each WATERSHED PERMITTEE neither relinquishes
11 any rights nor assumes any liabilities for its own actions or the actions of other
WATERSHED PERMITTEES. It is the intent of the WATERSHED PERMITTEES that the rights
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and liabilities of each WATERSHED PERMITTEE shall remain the same, while this
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AGREEMENT is in force, as it was before this AGREEMENT was made, except as otherwise
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specifically provided in this agreement.
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Section 8. TERMINATION. Any WATERSHED PERMITTEE wishing to terminate its
16 participation in this AGREEMENT shall so notify all other WATERSHED PERMITTEES in
17 writing by March 1 of any year. Such termination shall be effective the following
18 June 30. The terminating WATERSHED PERMITTEE shall be responsible for financial
19 obligations hereunder to the extent incurred in accordance with this agreement by the
20 WATERSHED PERMITTEE prior to the effective date of termination. The balance of the
WATERSHED PERMITTEES may continue in the performance of the terms and conditions of
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this AGREEMENT on the basis of a revised allocation of cost based on the funding
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formula in Exhibit A. Termination of participation in this AGREEMENT does not release
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any WATERSHED PERMITTEE from its regulatory obligations under the NPDES PERMIT.
24 Section 9. AVAILABILITY OF FUNDS. The obligation of each WATERSHED PERMITTEE
25 is subject to the availability of funds appropriated for this purpose, and nothing
26 herein shall be construed as obligating the WATERSHED PERMITTEES to expend or as
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Agreement No.D10 -071
1 involving the WATERSHED PERMITTEES in any contract or other obligation for the future
2 payment of money in excess of appropriations authorized by law.
3 Section 10. NO THIRD PARTY BENEFICIARIES. Nothing expressed or mentioned in this
4 AGREEMENT is intended or shall be construed to give any person, other than the
5 WATERSHED PERMITTEES hereto, and any permitted successors, any legal or equitable
6 right, remedy or claim under or in respect of this AGREEMENT or any provisions herein
7 contained. This AGREEMENT and any conditions and provisions hereof is intended to be
8 and is for the sole and exclusive benefit of the WATERSHED PERMITTEES hereto and for
9 the benefit of no other person, agency or entity.
10 Section 11. REFERENCE TO CALENDAR DAYS. Any reference to the word "day" or
11 "days" herein shall mean calendar day or calendar days, respectively, unless otherwise
12 expressly provided.
13 Section 12. ATTORNEYS FEES. In any action or proceeding brought to enforce
14 or interpret any provision of this AGREEMENT, or where any provision hereof is
15 asserted as a defense, each WATERSHED PERMITTEE shall bear its own attorneys' fees and
16 costs.
17 Section 13. ENTIRE AGREEMENT. This AGREEMENT is intended by the WATERSHED
18 PERMITTEES as a final expression of their agreement and intended to be a complete and
19 exclusive statement of the agreement and understanding of the WATERSHED PERMITTEES
20 hereto in respect of the subject matter contained herein. There are no restrictions,
21 1 Prornises, warranties or undertakings, other than those set forth or referred to
22 herein. This AGREEMENT supersedes all prior agreements and understandings between the
23 WATERSHED PERMITTEES with respect to such matter.
24 Section 14. SEVERABILITY. If any part of this AGREEMENT is held,
25 determined or adjudicated to be illegal, void, or unenforceable by a court of
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Agreement No.D10 -071
1 competent jurisdiction, the remainder of this AGREEMENT shall be given effect to the
2 fullest extent reasonably possible.
3 Section 15. SUCCESSORS AND ASSIGNS. The terms and provisions of this
4 AGREEMENT shall be binding upon and inure to the benefit of the WATERSHED PERMITTEES
5 hereto and their successors and assigns.
6 Section 16. NOTICES. All notices required or desired to be given under
7 this AGREEMENT shall be in writing and (a) delivered personally, or (b) sent by
8 certified mail, return receipt requested or (c) sent by telefacsimile communication
g followed by a mailed copy, to the addresses specified below, provided each WATERSHED
10 PERMITTEE may change the address for notices by giving the other WATERSHED PERMITTEES
11 at least ten (10) days written notice of the new address. Notices shall be deemed
12 received when actually received in the office of the addressee or when delivery is
13 refused, as shown on the receipt of the U.S. Postal service, or other person making
14 the delivery, except that notices sent by telefacsimile communication shall be deemed
15 received on the first business day following transmission.
16 Director of Public Works
City of Anaheim
17 200 S. Anaheim Blvd. Ste 276
Anaheim, CA 92805
18 Public Works Director
City of Brea
19 1 Civic Center Plaza
Brea, CA 92821
20 I Director of Public WorkE
21 I City of Buena Park
6650 Beach Boulevard
22 Buena Park, CA 90622 -5009
Director of Public Works
23 City of Cypress
5272 Orange Avenue
24 Cypress, CA 90630
25 Maintenance Services Director
City of Fullerton
26 303 West Commonwealth Avenue
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Agreement No.D10 -071
1 Fullerton, CA 92832
2 Director of Public Works
City of La Habra
3 201 East La Habra Boulevard
La Habra, CA 90631
4 Director of Public Works
City of La Palma
5 7822 Walker Street
La Palma, CA 90623
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Community Services Director
7 City of Los Alamitos
3191 Katella Avenue
Los Alamitos, CA 90720
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Director of Public Works
9 City of Placentia
401 East Chapman Avenue
10 Placentia, CA 92870
11 Director of Public Works
City of Seal Beach
211 8th Street
12 Seal Beach, CA 90740
13 Director, OC Public Works
County of Orange
14 P.O. Box 4048
Santa Ana, CA 92702 -4048
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Section 17. EXECUTION OF AGREEMENT. This AGREEMENT may be executed in
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counterpart and the signed counterparts shall constitute a single instrument.
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Section 18. GOVERNING LAW AND VENUE. This AGREEMENT has been negotiated
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and executed in the State of California and shall be governed by and construed under
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the laws of the State of California. In the event of any legal action to enforce or
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interpret this AGREEMENT, the sole and exclusive venue shall be a court of competent
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jurisdiction located in Orange County, California, and the WATERSHED PERMITTEES hereto
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agree to and do hereby submit to the jurisdiction of such court, notwithstanding Code
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of Civil Procedure section 394. Furthermore, the WATERSHED PERMITTEES have
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25 specifically agreed, as part of the consideration given and received for entering into
this AGREEMENT, to waive any and all rights to request that an action be transferred
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Agreement No.D10 -071
1 for trial to another county under Code of Civil Procedure Section 394 or any other
2 provision of law.
3 IN WITNESS WHEREOF, the WATERSHED PERMITTEES hereto have executed this AGREEMENT
4 the day and year first above written:
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Agreement No.D10 -071
1
ORANGE COUNTY FLOOD CONTROL DISTRICT
2 A body corporate and politic
3 B
4 y:
Chairman of the Board of Supervisors
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6 COUNTY OF ORANGE
A body corporate and politic
7 (8 ry"i (2rpaelY
8 Date: 5 -11- By:
Chairman of the Board of Supervisors
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10 SIGNED AND CERTIFIED THAT A COPY OF
THIS AGREEMENT HAS BEEN DELIVERED TO
11 THE CHAIRMAN OF THE BOARD
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13 Date: 5-11 II By Iik, Ld �� d /
DARLENE J. BLOOM
14 Clerk of the Board of Supervisors of
Orange County, California
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16 APPROVED AS TO FORM
COUNTY COUNSEL
17 ORANGE COUNTY, CALIFORNIA
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19 BY
111110
Geo' : K. Hunt, Deputy
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21 Date: 3 3 a 'D
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Agreement No.D10 -071
1 CITY OF ANAHEIM
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Date: By:
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Pro Tem
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City Clerk City Attorney
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Agreement No.D10 -071
1 CITY OF BREA
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Mayor
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City Clerk C Attorney
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Agreement No.D10 -071
1 CITY OF BUENA PARK
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Mayo
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City Clerk City Attorney
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Agreement No.D10 -071
1 CITY OF CYPRESS
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Mayor
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Agreement No.D10 -071
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1 CITY OF FULLERTON
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Mayor
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Agreement No.D10 -071
1 CITY OF LA HABRA
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Agreement No.D10 -071
1 CITY OF LA PALMA
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6 Date: March 1, 2011 By: 4/, . d
ayor
7 Ralph D. Rodriguez
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City Clerk City Att ey I
12 Laurie A. Murray Joel D. uperberg
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Agreement No.D10 -071
1 CITY OF LOS ALAMITOS
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Agreement No.D10 -071
1 CITY OF PLACENTIA
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Agreement No.D10 -071
1 CITY OF SEAL BEACH
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6 Date: April 11, 2011 By:
Mayor i_ichael P. Levitt
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City lerk Lino Devine ity Attorney Quinn Barrow
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EXHIBIT A
EXAMPLE: Cost Share Based on FY09 -10 NPDES Funding Formula Data
PERCENTAGE •
TOTAL • SQ. MILES ESTIMATED WEIGHTED
JURISDICTION SQUARE W OF CITY LAND TOTAL ITHIN a POPULATION IN AVERAGE SHARE
MILES WATERSHED AREA IN POPULATION WATERSHED OF COST ( %)
WATERSHED 2
ANAHEIM 49.9 13.8 27.7 346,823 95,915 15.82
BREA 12.0 8 7 72.5 40,081 29,059 7.26
BUENA PARK 10.6 10 3 97.2 82,768 80,426 12.57
CYPRESS 6.6 4 7 71.2 49,541 35,279 5.61
FULLERTON 22.5 22.3 99.1 137,437 136,215 23 94
LA HABRA 7.4 7.4 100 0 62,635 62,635 9.45
LA PALMA 1.8 1 8 100 0 16,176 16,176 2 38
LOS ALAMITOS 2.0 2.0 100.0 12,191 12,191 2 14
PLACENTIA 6.6 3 5 53 0 51,727 27,431 4 28
SEAL BEACH 4 0 3 4 85.0 25,986 22,088 3.76
ORANGE CO 175 2 4 6 2 6 122,032 3,204 2.79
O C. Flood
Control District - -- - -- - -- — - -- 10 00
TOTAL . 298 60, 82.5 - -- 947,397 520,619 100.00
1 Source: NPDES Stormwater Permit Implementation Agreement D02 -048. Includes Land Area Deductions from agreement exhibit A-
2 Percentage of City Land Area in Watershed = Square miles within Watershed/Total Square Miles * 100
3 Taken from California State Dept. of Finance as of 1/1/2009
"Estimated Population in Watershed = Total Population * Percentage of City Land Area in Watershed /100
5 Weighted Average Share of Cost = ((Square Miles within Watershed/Total Square Miles of Watershed) *0 5) +((Estimated Population in
6 Orange County Flood Control District assumes a flat 10 percent of the total
, IIF e
Exhibit B
Draft Budget for Agreement D10 -071
• Budget Item. ' 2011=12. `-
Projected , i
Salaries and Employee Benefits - Account 0100
Water Quality Planning $42,835
Monitoring Programs $11,926
Data Management $1,511
Administrative $913
Laboratory - Account 1500 $400
Professional and Specialized Services - Account 1900
Analytical Services - Metals Analysis $25,872
General Transport and Travel - Account 2700 $825
Budget Total $84,282 '