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HomeMy WebLinkAboutMINUTES - 12142004 - C.27 �s TO: BOARD OF SUPERVISORS,AS GOVERNING Contra BOARD OF THE FLOOD CONTROL&WATER CONSERVATION DISTRICT Costa FROM: MAURICE M. SHItJ, CHIEF ENGINEER County DATE: December 14,2404 P7 SUBJECT: Amend the Joint Exercise of Powers Agreement with Contra Costa County Public Works Department,Contra Costa County Flood Control and Water Conservation District,Alameda County Flood Control and Water Conservation District,Zone 7-Alameda County Flood Control and Water Conservation District,the City of Antioch,and the City of Concord to develop a monitoring plan and to implement monitoring for our Aquatic Pesticide Permit under the Regional Water Quality Control Boards. SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION RECOMMENDED ACTION: APPROVE and AUTHORIZE the Chair, Board of Supervisors,to execute an amendment to the Joint Exercise of Powers Agreement (JEPA) with Contra Costa County Public Works Department, Contra Costa County Flood Control and Water Conservation District,Alameda County Flood Control and Water Conservation District,Zone 7- Alameda County Flood Control and Water Conservation District, the City of Antioch, and the City of Concord, effective December 14,2044,to develop a monitoring plan and to implement monitoring for our Statewide General National Pollutant Discharge Elimination System (NPDES) Aquatic Pesticide Permit under the Regional Water Quality Control Boards, Countywide. (Stormwater Utility Assessment Funds) (All Districts) Continued on Attachment: } ' F SIGNATU D—ItECOMMENDATION OF COUNTY ADMINISTRATOR (l RE hI VIENDATION OARD COMMITTEE PPROVE [ OTHER SIGNATURES}: ter+ wwwr.n�ww ACTION OF BOA6PN_ DECEMBER I4, 2004 APPROVED AS R V,`OMMENDED G{ OTHER MM VOTE OF SUPERVISORS xx UNANIMOUS(ABSENT V } AYES: NOES: I hereby certify that this is a true and correct copy of an action ABSENT: ABSTAIN: taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: DECEMBER 14, 20014 NS;caY O:1Crrpl7ata1FldCtllAdrninistrationlfloard Orders JOHN SWEETEN,Clerk of the Board of Supervisors and County \2004 BO`\iEPA BO FCWCD 12-14-04.doe Administrator Orifi.Div:Public Works(Flood Control Division) Contact: Nancy Stein(925-313-2285) cc: CAC? County Counsel By....... z _ Deputy FIRST AMENDED JOINT EXERCISE OF POWERS AGREEMENT BETWEEN CONTRA COSTA COUNTY, CONTRA COSTA COUNTY FLOOD CONTROL AND WATER.CONSERVATION DISTRICT, ALAMEDA COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT, ZONE 7 —ALAMEDA COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT, THE CITY OF ANTIOCH, AND THE CITY OF CONCORD TO DEVELOP A MONTORING PLAN AND IMPLEMENT MONITORING FOR OUR AQUATIC PESTICIDE PERMIT UNDER THE REGIONAL WATER. QUALITY CONTROL BOARDS RECITALS WHEREAS CONTRA COSTA COUNTY (CONTRA COSTA), ALAMEDA COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT (ALAMEDA), ZONE 7 -- ALAMEDA COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT (ZONE 7), the CITY OF ANTIOCH (ANTIOCH), and the CITY OF CONCORD (CONCORD) entered into a Joint Exercise of Powers.Agreement on July 8, 2403 to develop a monitoring plan and implement monitoring for their aquatic pesticide permits under the regional water quality boards; WHEREAS the Parties to the original JEPA now desire to amend the JEPA to reflect the requirements of their current Statewide General National Pollutant Discharge Elimination System permit; WHEREAS the Parties to the original JEPA now desire to add the CONTRA COSTA COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT (DISTRICT) as a new Party to the JEPA; NOW, THEREFORE, for and in consideration of the mutual benefits, covenants and agreements set forth herein, the Parties agree: AGREEMENT 1, rhe and 9 ope oWok A. Purpose of the Amendment. The Parties hereby amend the Joint Exercise of Powers Agreement with CONTRA COSTA, ALAMEDA, ZONE 7, ANTIOCH, and CONCORD to Develop a Monitoring Plan and Implement Monitoring for our Aquatic Pesticide Permits under the Regional Water Quality Control Boards for the following purposes: 1) to add the Contra Costa County Flood and Water Conservation District as a Party; 2) to conform the requirements of the Parties' current Statewide General National Pollutant Discharge Elimination System permit; and 3) to clarify certain ambiguities in the original document. The following sections of the JEPA have been amended: 1 through 6 and 0, 10 and 12. The following section of the JEPA has been added: 11. To the extent that there is any conflict between the language of the JEPA adopted in Page 1 of 14 Amended Joint Exercise of Powers Agreement shall control. B. Scope of Work. Except as otherwise specified, all the of the Parties agree to act jointly and cooperatively to: (1) Form the Aquatic Pesticide Monitoring Plan Committee (APMPC) to coordinate compliance with the Water Quality Order NO. 2004-0009-DWQ Statewide General National Pollutant Discharge Elimination System Permit for the Discharge of Aquatic Pesticides for Aquatic Weed Control in Waters of the United States, General Permit NO. CAG 990005 (herein referred to as the "Permit"). (2) Hire and fund one or more contract consultant(s) to act at the direction of the APMPC and prepare documentation as required by the Permit. (3) Implement an Aquatic Pesticide Application Plan (APAP) to be in accordance With the Permit. (4) Provide adequate monitoring and reporting required under the Permit, 2. EResponsibil!ties of the Parties- A. ANTIOCH, CONCORD, ALAMEDA, ZONE 7, and DISTRICT shall: (1) Participate in APMPC meetings, and assist in developing, reviewing, commenting on, and approving the committee's work products. (2) By executing this JEPA, authorize CONTRA COSTA to enter into consultant contracts under this JEPA on their behalf. B. CONTRA COSTA shall: (1) Act as the lead agency in charge of the APMPC meetings, and prepare and distribute minutes of these meetings. (2) Enter into agreements with the selected consultant(s), and administer the contract(s) for completion of the APAP, the Annual Report and other documentation required by the Permit. (3) Distribute copies of the fully executed consultant contract(s), consultant invoices, invoice summaries, and billings to each Party. (4) Distribute Aquatic Pesticide Monitoring Plan reports to each Party to this JEPA for review, signature, and submittal to the Central Valley and the San Francisco Bay Regional Water Quality Control Boards. 3. Financial Basponsibility- Page 2 oil 14 A. The Parties shall: (1) By majority vote, adopt a budget for this project within 60 days of the date of execution of the First Amended JEPA by all Parties and by October I of each year thereafter, including a division of shared costs for consultant(s) and analytical laboratory services. (2) Within ten (10) working days of adopting a, budget pursuant to Section 3.A.(I), above, deposit with CONTRA COSTA their proportional share of the estimated costs. (3) Pay their share of all costs incurred by CONTRA COSTA for administration, development, review and approval of the consultant contract for services rendered to the APMPC. Notwithstanding the estimated cost budget adopted pursuant to Section 3.A.(I), above, each Party shall be responsible for their proportional share of the actual costs incurred in adopting the Aquatic Pesticide Monitoring Plan and the preparation of the Annual Report and other documents required by the Permit. (4) Each Party shall pay their: a) Own agency costs associated with their individual participation in this JEPA, except as specifically provided in Section 3.A.(3), above. b) Share of the total cost allotted for coordination and administration by CONTRA COSTA for the APMPC as described in the budget adopted pursuant to Section 3.A.(1), above. c) Share of the total cost of monitoring and testing for each pesticide it utilizes, as described in the budget adopted pursuant to Section 3.A.(I), above. (5) Within sixty (60) days of receiving notice from CONTRA COSTA of a deficiency in the revenue account pursuant to Section 3.B.(5), below, each Party receiving notice shall deposit its proportional share of the deficiency with CONTRA COSTA. B. CONTRA COSTA shall: (1) Direct the Contra Costa County Public Works Director and the Contra Costa County Auditor/Controller to establish a revenue account for this JEPA. Page 3 of 14 account established pursuant to Section 3.13.(1), above. (3) Pursuant to Section 8, provide strict accountability of all funds received, including accounting for simple interest earned on funds received from the Parties. (4) Prepare and submit billings and an accounting of costs to the Parties within 30 days of contracted consultant(s) submittal of final invoices, (5) Notify Parties if there are insufficient funds in the revenue account to cover the Parties' liabilities for costs incurred under this JEPA. C. CONTRA COSTA may, in its sole discretion, terminate another Party from this JEPA if that Party fails to meet the deposit deadline and pay its share of costs as required under Section 3.A. and Section 3.13 of this JEPA. If CONTRA COSTA chooses to exercise this option, it shall provide 30 days written notice to all other Parties to this JEPA. 4. Insuranca and Hold Harmless. A. The contract documents for consultant contract(s) shall include provisions requiring the successful bidder to: (1) Secure and maintain in full force and effect, during the existence of this JEPA, workers' compensation and public liability and property damage insurance in forms and limits of liability satisfactory to the Parties naming the Parties, their governing bodies, officers, agents, and employees as additional insureds. The consultant shall indemnify, defend, and hold harmless each of the participating Parties from all claims, suits, actions, or liability arising out of its performance of the consultant contract(s). (2) Hold harmless and indemnify ANTIOCH, CONCORD, ALAMEDA, ZONE 7, and DISTRICT, their governing bodies, officers, agents, and employees from liability to the same extent as promised to CONTRA COSTA. The aforementioned policies shall contain a provision that the insurance afforded thereby to the additional insureds shall be primary insurance to the full limits of the policy. If any of the additional insureds has other insurance or self-insurance against a loss covered by such policy, such insurance or self-insurance shall be excess insurance only. Before beginning work under the consultant contract, the consultant shall submit to the Parties a certificate of insurance issued by the insurer evidencing the required coverage and requiring the carrier to give at least thirty (30) days written notice to the Parties of any cancellation, non-renewal, or material modification of the policy. CONTRA COSTA shall be responsible for ensuring that this requirement has been met before Page 4 of 14 Parties to this agreement, CONTRA COSTA shall obtain additional insured certificates or other written evidence satisfactory to Parties to this JEPA indicating that these Parties have been named as additional insureds on each of the liability policies. B. (1) CONTRA COSTA agrees to indemnify and hold harmless ANTIOCH, CONCORD, ALAMEDA, ZONE 7, and/or DISTRICT for its share of all claims, costs and liability for any damage, injury or death of or to any person or the property of any person, including attorneys' fees, arising from the willful misconduct or the negligent acts, errors or omissions of CONTRA COSTA in the performance of this JEPA. CONTRA COSTA acknowledges that entry into aquatic pesticide sampling and testing zones carries with it a certain risk and agrees to release ANTIOCH, CONCORD, ALAMEDA, ZONE 7 and/or DISTRICT, their officers, employees, consultants, and agents from liability for death of or injury to CONTRA COSTA's representative(s) resulting from their entry into the treatment area, except to the extent that such liability resulted from the negligence or willful misconduct of ANTIOCH, CONCORD, ALAMEDA, ZONE 7 and/or DISTRICT, their officers, employees, consultants and agents. After the APAP and Annual Report are accepted pursuant to Section 5 of this JEPA, CONTRA COSTA will hold harmless ANTIOCH, CONCORD, ALAMEDA, ZONE 7 and/or DISTRICT, their governing bodies, officers, employees, and agents from all claims, suits, actions or liability arising from CONTRA COSTA's use of that information. (2) ANTIOCH agrees to indemnify and hold harmless CONTRA COSTA, CONCORD, ALAMEDA, ZONE 7, and/or DISTRICT for its share of all claims, costs and liability for any damage, injury or death of or to any person or the property of any person, including attorneys' fees, arising from the willful misconduct or the negligent acts, errors or omissions of ANTIOCH in the performance of this JEPA. ANTIOCH acknowledges that entry into aquatic pesticide sampling and testing zones carries with it a certain risk and agrees to release CONTRA COSTA, CONCORD, ALAMEDA, ZONE 7 and/or DISTRICT, their officers, employees, consultants, and agents from liability for death of or injury to ANTIOCH's representative(s) resulting from their entry into the treatment area, except to the extent that such liability resulted from the negligence or willful misconduct of CONTRA COSTA, CONCORD, ALAMEDA, ZONE 7 and/or DISTRICT, their officers, employees, consultants and agents. After the APAP and Annual Report are accepted pursuant to Section 5 of this JEPA, ANTIOCH will hold harmless CONTRA COSTA, CONCORD, ALAMEDA, ZONE 7 and/or DISTRICT, their governing bodies, officers, employees, and agents from all claims, suits, actions or liability arising from ANTIOCH's use of that information, Page 5 of 14 COSTA, ANTIOCH, ALAMEDA, ZONE 7, and/or DISTRICT for its share of all claims, costs and liability for any damage, injury or death of or to any person or the property of any person, including attorneys' fees, arising from the willful misconduct or the negligent acts, errors or omissions of CONCORD in the performance of this JEPA. CONCORD acknowledges that entry into aquatic pesticide sampling and testing zones carries with it a certain risk and agrees to release CONTRA COSTA, ANTIOCH, ALAMEDA, ZONE 7 and/or DISTRICT, their officers, employees, consultants, and agents from liability for death of or injury to CONCORD's representative(s) resulting from their entry into the treatment area, except to the extent that such liability resulted from the negligence or willful misconduct of CONTRA COSTA, ANTIOCH, ALAMEDA, ZONE 7 and/or DISTRICT, their officers, employees, consultants and agents. After the APAP and Annual Report are accepted pursuant to Section 5 of this JEPA, CONCORD will hold harmless CONTRA COSTA, ANTIOCH, ALAMEDA, ZONE 7 and/or DISTRICT, their governing bodies, officers, employees, and agents from all claims, suits, actions or liability arising from CONCORD's use of that information. (4) ALAMEDA agrees to indemnify and hold harmless CONTRA COSTA, ANTIOCH, CONCORD, ZONE 7, and/or DISTRICT for its share of all claims, costs and liability for any damage, injury or death of or to any person or the property of any person, including attorneys' fees, arising from the willful misconduct or the negligent acts, errors or omissions of ALAMEDA in the performance of this JEPA. ALAMEDA acknowledges that entry into aquatic pesticide sampling and testing zones carries with it a certain risk and agrees to release CONTRA COSTA, ANTIOCH, CONCORD, ZONE 7 and/or DISTRICT, their officers, employees, consultants, and agents from liability for death of or injury to ALAMEDA's representative(s) resulting from their entry into the treatment area, except to the extent that such liability resulted from the negligence or willful misconduct of CONTRA COSTA, ANTIOCH, CONCORD, ZONE 7 and/or DISTRICT, their officers, employees, consultants and agents. After the APAP and Annual Report are accepted pursuant to Section 5 of this JEPA, ALAMEDA will hold harmless CONTRA COSTA, ANTIOCH, CONCORD, ZONE 7 and/or DISTRICT, their governing bodies, officers, employees, and agents from all claims, suits, actions or liability arising from ALAMEDA's use of that information. (5) ZONE 7 agrees to indemnify and hold harmless CONTRA COSTA, ANTIOCH, CONCORD, ALAMEDA, and/or DISTRICT for its share of all claims, costs and liability for any damage, injury or death of or to any person or the property of any person, including attorneys' fees, arising from the willful misconduct or the negligent acts, errors or omissions of ZONE 7 in the performance of this JEPA. ZONE 7 Page 6 of 14 ....._.�«r'PY`S�t.s�s: s3 Clit.i• ...rseseo,. ...W.." .:...iL.:....... (s�:sLtJs��- ."t..tasa�..: e.� ,,:(ra.. ..,.... .,.rte zones carries with it a certain risk and agrees to release CONTRA COSTA, ANTIOCH, CONCORD, ALAMEDA and/or DISTRICT, their officers, employees, consultants, and agents from liability for death of or injury to ZONE Ts representative(s) resulting from their entry into the treatment area, except to the extent that such liability resulted from the negligence or willful misconduct of CONTRA COSTA, ANTIOCH, CONCORD, ALAMEDA, and/or DISTRICT, their officers, employees, consultants and agents. After the APAP and Annual Report are accepted pursuant to Section 5 of this JEPA, ZONE 7 will hold harmless CONTRA COSTA, ANTIOCH, CONCORD, ALAMEDA, and/or DISTRICT, their governing bodies, officers, employees, and agents from all claims, suits, actions or liability arising from ZONE Ts use of that information. (5) DISTRICT agrees to indemnify and hold harmless CONTRA COSTA, ANTIOCH, CONCORD, ALAMEDA, and/or ZONE 7 for its share of all claims, costs and liability for any damage, injury or death of or to any person or the property of any person, including attorneys' flees, arising from the willful misconduct or the negligent acts, errors or omissions of DISTRICT in the performance of this JEPA. DISTRICT acknowledges that entry into aquatic pesticide sampling and testing zones carries with it a certain risk and agrees to release CONTRA COSTA, ANTIOCH, CONCORD, ALAMEDA, and/or ZONE 7, their officers, employees, consultants, and agents from liability for death of or injury to DISTRICT's representative(s) resulting from their entry into the treatment area, except to the extent that such liability resulted from the negligence or willful misconduct of CONTRA COSTA, ANTIOCH, CONCORD, ALAMEDA, and/or ZONE 7, their officers, employees, consultants and agents. After the APAP and. Annual Report are accepted pursuant to Section 5 of this JEPA, !DISTRICT will hold harmless CONTRA COSTA, ANTIOCH, CONCORD, ALAMEDA, and/or ZONE 7, their governing bodies, officers, employees, and agents from all claims, suits, actions or liability arising from DISTRICT's use of that information. C. Nothing in this JEPA is intended or shall be construed to affect the legal liability of either Party to third Parties by imposing any standard of care greater than that imposed by law. 5. Acceptance. The Parties to this Agreement shall conduct a final review of the APAP and the Annual Report when completed. Representatives from ANTIOCH, CONCORD, ALAMEDA, ZONE 7 and DISTRICT who have been expressly delegated the power by their legislative bodies to determine that the work performed by the contractor has been completed to their satisfaction shall review the work. After each representative other than CONTRA COSTA has determined the work has been completed to their satisfaction and have advised CONTRA COSTA of that determination in writing, a representative from CONTRA COSTA Page 7 of 14 tr �.n-'Sw*ty Y^ sv nv. rr ne14: rj a#{ r rqs »{ ,power + _ =L o .r ... .. ... _,F«..:-� .. _....,b�.y,.':...•.,+t.i. ....,.. t.f�' i1��Cw` a.+v'�dL��i.2 `v'�.'is.t«» of Supervisors to determine satisfaction shall determine satisfaction and if satisfied, accept the APAP, and the Annual Report as complete. The Parties shall not unreasonably withhold or delay their determination of the APAP and the Annual Report completion. No Party shall have a right to damages or relief resulting from the accuracy or completeness of the report and each Party releases all other Parties from any claim, cast, or liability resulting from the determinations and acceptance described in this Section. 6. Maintenance, The Parties to this Agreement shall be responsible for their own spraying, Aquatic Pesticide Permits, permit fees, CEQA documents, Notice of Intent to obtain an Aquatic Pesticide Permit, California Department of Pesticide Regulation licensure and reporting, fines, mitigation contract, monthly and annual reporting as described in the APAP, notification to consultant(s)for efficient testing schedules, and timely preparation of accurate and complete data as required by consultant(s)to prepare reports as described in the APAP. 7. Restrictions. Pursuant to Government Cade Section 6509, the powers of the Parties under this JEPA shall be subject to the restrictions on such powers applicable to CONTRA COSTA. 8. Ac ouritab tv. As required by Government Code Section 6505, CONTRA COSTA shall provide strict accountability of all funds received and disbursed under this JEPA. 9. Agreement Modification. This JEPA shall be subject to modification only with the written consent of the legislative bodies of all Parties. No Party shall unreasonably withhold its consent to modification for the implementation and accomplishment of the overall purpose for which this JEPA is made. In the event that a new agency desires to join and participate in this JEPA, that new member shall: A. Identify a point of contact who will be responsible for the new member's involvement in the APMPC; B. Pay an initial administrative fee of $5,000, for costs associated with providing the coordination, education, and set-up and other documents deemed necessary to join the existing JEPA and APMPC; C. Pay actual costs up to $3,000 for the existing contracted consultant(s) to compile and review data, prepare an amended APAP, train and educate as necessary to comply with the permit reflecting the addition of the new member; D. Pay an equal "per-member" share of the casts identified in the budget adopted pursuant to Section 3.A.(1) of this JEPA, including, but not limited to surfacewater sampling and analysis and reporting; E. Insure and hold-harmless current Parties to this Agreement, to the extent Page 8 of 14 - ,cttf :l'.^v9.,,-.t> r � F .. :-.Y'i-t era.+att-. v,-. r•.rv. .4..r-.,+;•<;ti. �5-r-' F. Attend all meetings and provide data as needed in a timely manner for execution of the APMPC. 10. agree mot I.p_rmintion. This JEPA will remain in effect until terminated as provided in subsections A and B below. Sections 4 and 5 of this JEPA will survive termination. A. This JEPA may be terminated upon agreement of the majority of Parties or; B. This JEPA will terminate automatically upon the withdrawal of all Parties. Any Party to this JEPA may withdrawal upon thirty (30) days written notice to all other Parties, provided that upon withdrawal, all funds contributed by the withdrawing Party will remain in the revenue fund until the JEPA is terminated. 11. Sy ler- Funds- Termination pursuant to Section 10 above, any surplus money on hand will be returned in proportion to the contribution made. 12. Entire Agreement. This JEPA contains the entire understanding of the Parties relating to the subject matter of this JEPA. Any representation or promise of the Parties relating to the project shall not be enforceable unless it is contained in this JEPA or in a subsequent written modification of this JEPA executed by the legislative bodies of all Parties. CONTRA COSTA COUNTY on behalf of its PW9tCW1QRKS DEPARTMENT Y Chair, Board of supervisors ATTEST: DEC ER 14, 2004 John sweeten, Clerk of the Board of supervisors and County Administrator By , ibeputy Recommended for Approval: Maurice M. Shiu, Public Works Director By ^L \ Forms Approved: Silvano S. Marchesi County Counsel BY--' _ Deputy Page 9 of 14 CITY OF ANTIOCH By Mayor Recommended for Approval: CITY Engineer By Form Approved: CITY Attorney By Page 10 of 14 CITY OF CONCORD By Mayor Recommended for Approval: CITY Engineer By Form Approved: CITY Attorney By Page 11 of 14 ALAMEDA COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT" By Chair, Board of Supervisors ATTEST: , Clerk of the Board of Supervisors and County Administrator By Deputy Recommended for Approval: Public Works Director By Form Approved: County Counsel By Deputy Page 12 of 14 ZONE 7 —ALAMEDA COUNTY FLOOD CONTROL AND DATER CONSERVATION DISTRICT By President, Board of directors ATTEST: By Board Secretary Recommended for Approval: Dale Myers, General Manager By Approved as to Form: Richard E. Winnie Alameda County Counsel By. Deputy Page 13 of 14 CONTRA COSTA COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT By Chair f the Board of Supervisors,as governing body of the Contra Costa County Flood Control and Water Conservation District ATTEST: DECEIABER 14, 2004 John Sweeten, Clerk of the Board of Supervisors and County Administrator By eputy berk Recommended for Approval: Maurice Shiu, Chief Engineer __... By iJ APPROVED AS TO FORM: Slinano B. Marchesi County Counsel By Deputy Page 14 of 14 t;