San Diego Regional Stormwater Copermittees MOU - 1 - Fourth Amended: October 22, 2019 Fourth Amended National Pollutant Discharge Elimination System San Diego Regional Stormwater Copermittees
MEMORANDUM OF UNDERSTANDING
2019
This Memorandum of Understanding (MOU), enteredinto by the County of San Diego (County), the San Diego Unified Port District ( Port), the San Diego County Regional Airport Authority ( Airport), and the incorporated cities of San Diego, Carlsbad, Chula Vista, Coronado, Escondido, Imperial Beach, La Mesa, San Marcos, Del Mar, El Cajon, Encinitas, Lemon Grove, National City, Oceanside, Poway, Santee, Solana Beach, and Vista ( Cities), collectively called Copermittees, establishesthe sharedprogram responsibilities of eachparty with respectto compliance with the National Pollutant Discharge Elimination System (NPDES) stormwater permit regulations administered by the United States Environmental Protection Agency (U.S. EPA) under the authority granted by the Federal Water Pollution Control Act ( Clean Water Act) 33 USCA 1251 et seq. as amended.
RECITALS
WHEREAS, in 1987 CongressamendedSection 402 of the Federal Water Pollution Control Act 33 USCA §1342p) to require the U.S. EPA to promulgate regulations for applications for permits for stormwater discharges; and
WHEREAS, the U.S. EPA adoptedfinal permit regulations on November 16, 1990; and WHEREAS, thesepermit regulations require the control of pollutants from stormwater dischargesby requiring an NPDES permit, which would allow the lawful discharge of stormwater into waters of the United States; and
WHEREAS, the County, the Port, the Airport, and the Cities desire to implement an integrated stormwater managementprogram with the objective of improving surface water quality in the County of San Diego, but do so without waiving and expressly subject to any and all objections and appealsmade by any Copermittee in responseto any NPDES Permit; and
WHEREAS, the California State Water ResourcesControl Board (CSWRCB) asdesigneeof the U.S.
EPA has delegatedauthority to the San Diego Regional Water Quality Control Board (Regional Board) for administration of the NPDES stormwater permit within the boundaries of its region; and WHEREAS, on, May 8, 2013, the Regional Board issued an NPDES permit as Order No. R9-2013-0001, as amended by Order Nos. R9-2015-0001 and R9-2015-0100, NPDES No. CAS0109266, ( Permit) governing waste discharge requirements for stormwater and urban runoff from the County, the Port, the Airport, and the Cities, naming theseentities asCopermittees; and WHEREAS, said Permit requires that the Copermittees cooperatein the implementation of various Urban Runoff Management Plans;
NOW, THEREFORE, the parties hereto do mutually agreeas follows:
San Diego Regional Stormwater Copermittees MOU - 2 - Fourth Amended: October 22, 2019 I. DEFINITIONS
At Large meansrepresentingall of the Copermittees of this MOU.
Chair meanspresiding over and providing leadership and direction to a Working Body. This includes serving as a point of contact to external entities such as Regional Board staff, stakeholders, and industry groups, soliciting group input on and developing meeting content, facilitating meetings, and coordinating with the Secretaryor Working Body Support staff to finalize work products for distribution to the Working Body. Chair responsibilities may also be divided between Co-Chairs.
Contract Administration meansdeveloping, soliciting, awarding, and managing contracts.
Consensus meansgeneral agreementreachedbetween the participants of a Working Body.
Direct Costs mean those costsdirectly related to the development of a work product, or to the performance of a particular function or service. Direct Costs may include the wagesof Copermittee employeesengagedin an activity and the cost of materials or supplies neededto support that activity.
Depreciation, equipment, and office spaceare not considered Direct Costs.
Fiscal Year starts on July 1 and endson June30 of the following year.
General Programs are collaborative urban runoff managementactivities which are (1) mandatedby or necessaryto implement requirements of the Permit, (2) necessaryto anticipate the requirements, or preparefor renewal, of the Permit, (3) required to comply with Regional Board Orders or other directives required of Copermittees as dischargersof urban runoff ( e.g., 13267 Orders, Total Maximum Daily Loads, etc.), or (4) other urban runoff managementactivities conducted with the unanimous approval of Copermittees sharing the cost or responsibility.
In- kind Contribution meansa non-monetary contribution that can be usedto satisfy an equivalent monetary obligation. Examples of In-kind Contributions are equipment or services provided for use.
Program Planning Subcommittee or Planning Subcommittee is composedasdescribed in Section III. C.4 and 5.
Regional General Program( s) are activities that apply to all Copermittees, or that provide a regional benefit to Copermittees as determined by the Regional Management Committee.
Regional Principal Permittee is the County of San Diego unlessanother Regional Principal Permittee is selectedin accordancewith Section III. B.5. In addition to the responsibilities of all Copermittees described in Section II, the Regional Principal Permittee provides general coordination for the development and implementation of Regional General Programs, including the specific tasksand responsibilities described in Section III. A.1.b.
Regional Stormwater Management Committee or Management Committee is composedas described in Section III. B.2.
Regional Work Plan is a work plan that is one or more of the following: ( 1) developed and adopted annually for the purpose of conducting regional businessto implement requirements of the Permit, (2) necessaryto anticipate the requirements, or preparefor renewal, of the Permit, (3) required to comply with Regional Board Orders or other directives required of Copermittees as dischargersof urban runoff e.g., 13267 Orders, Total Maximum Daily Loads, etc.), or (4) other urban runoff managementactivities conducted with the unanimous approval of Copermittees sharing the cost or responsibility.
Representative meansa Copermittee staff member or consultant who servesas a point of contact and/or participant in the activities of a Working Body on behalf of the Copermittee. Except asdescribed in Section III. B (Regional Stormwater Management Committee), Representativesare not required to attend meetings, but are expectedto maintain a reasonableknowledge of, and involvement in, the activities of San Diego Regional Stormwater Copermittees MOU - 3 - Fourth Amended: October 22, 2019 the Working Body. To the best of their ability eachCopermittee Representativeshould have expertise and knowledge in the subject matter of eachapplicable Working Body.
Secretary meansa personwho takes responsibility for the records, correspondence, minutes or notes of meetings, and related affairs of a Working Body. This includes: maintaining group contact lists; preparing and sending out meeting notifications and agendas; arranging for meeting rooms and equipment; taking, preparing, and finalizing meeting minutes or notes; and, coordinating with the Chair or Working Body Support staff to organize and distribute work products to the Working Body.
Simple Majority meansat least one-half ( 50%) of applicable Copermittees, rounded up to the nearest integer, or plus one where the number of Copermittees is even. For the purposesof this MOU, a simple majority may never be less than three Copermittees.
Shared Cost Budget is one that is agreedupon and sharedby Copermittees for the purpose of conducting stormwater regulatory activities, and can be developed at a watershed, regional or other scale.
Special Formula meansany cost shareformula that differs from the Default Formula in the selection or weighting of individual factors or in the methodology usedto calculate one or more of them.
Three- fourths Majority meansat least three-fourths (75%) of applicable Copermittees, rounded up to the nearestinteger. For the purposesof this MOU, a Three-fourths Majority may never be less than three Copermittees.
Two- thirds Majority meansat least two-thirds (67%) of applicable Copermittees, rounded up to the nearestinteger. For the purposesof this MOU, a Two- thirds Majority may never be less than three Copermittees.
Urbanized Land Area meansthe total of all SANDAG land useswithin the geographic area, subject to the cost share, excepting therefrom, the following coded land uses: 1403 Military Barracks; 4102 Military Airports; 6700 Military Use; 6701 Military Use; 6702 Military Training; 6703 Military Weapons; 7209 Casinos; 7603 Open SpaceReserves, Preserves; 7609 Undevelopable Natural Areas; 9200 Water; 9201 Bays, Lagoons; 9202 Inland Water; and 9300 Indian Reservations.
Watershed Copermittee meansany Copermittee that is identified both as a Copermittee under Table 1.a and a ResponsibleCopermittee under any Watershed Management Area as defined in Table B-1 of the Permit.
Watershed General Programs are activities that apply to the Copermittees comprising any individual WatershedManagement Area (WMA) defined in Table B-1 of the Permit, or providing a general benefit to Copermittees within the WMA as determined by a Working Body.
Working Body meansCommittees, Subcommittees, Sub-working body(s), or any other working group of Copermittees’ employees assembledto conduct specific tasksrequired by, for, or in furtherance of, compliance with the Permit.
II. RESPONSIBILITIES OF ALL COPERMITTEES
The following apply to General Programs.
A. Performance and Reimbursement of Tasks
1. Any individual Copermittee performing tasksnecessaryto fulfill budgetedGeneral Program responsibilities for a Working Body is entitled to reimbursement of the costsincurred in accordancewith section II. B.
San Diego Regional Stormwater Copermittees MOU - 4 - Fourth Amended: October 22, 2019
2. Any Copermittee performing contract administration tasksto fulfill budgetedGeneral Program responsibilities for a Working Body is entitled to reimbursement of contract managementcostsat a rate of 5% of the total contract cost or as otherwise agreedon by the participating Copermittees.
3. Any Copermittee performing tasksother than contract administration or voluntarily serving as a Working Body Chair, Co-chair, or Secretary, is entitled to reimbursement of the Direct Costs of performing those services in accordancewith section II. B.
4. A Copermittee shall not be obliged to conduct work, enter into any contract, continue with any work or contract, or incur any other cost on behalf of other Copermittees if eachCopermittee has not contributed the funds that it is obliged to contribute toward the activity or program, or if the Copermittee hasnot received adequateassurancesthat such funds will be received before payments becomedue. The Copermittee shall have sole discretion to determine whether assurancesthat require funds will be timely received or adequate.
5. A member of a Working Body providing Working Body Support may terminate those obligations for convenience, but shall first make a good faith effort to carry out or transfer existing responsibilities to another party by providing written notification of termination to the Copermittees within the Working Body 90 days prior to the intended date of termination.
B. Fiscal Responsibilities
1. Division of SharedGeneral Program Costs
a. Prior to the allocation of sharedcosts, eachproposedor approved budget task or sub-task shall be identified as either a Regional General Program cost or a Watershed General Program cost, and the Copermittees sharing that cost shall be identified. The cost of any particular budget element shall be subject to the approval of only the Copermittees to which it applies. The associatedcostsshall be divided among participating Copermittees as describedbelow.
1) Default Formula. Sharedcostsshall be divided according to a Default Formula of 45% Urbanized Land Area, 45% Population, and 10% Equal Division unlessa Special Formula is approved by the Copermittees to which the cost applies. a) Population costsshall be divided among the Copermittees asfollows:
Whenever any geographic portion of the Port or Airport jurisdiction( s), respectively, lies(s) within the geographic areato which the sharedprogram or activity is applicable, the Port or Airport, respectively, will eachpay a fixed
0.5% of total Population costs. The remaining percentageof the population costsshall be divided among Copermittees by dividing the total population of eachCopermittee by the combined total Copermittee population within the geographic areaapplicable to the sharedprogram or activity. These percentages shall be calculated using the most recently available population data available from the San Diego Association of Governments SANDAG), unless more recent data are available from an equivalent source such as the U.S. Census Bureau, and are determined to be acceptable by the Copermittees sharing the cost.
b) Urbanized Land Area costsshall be divided among Copermittees by dividing the total Urbanized Land Area of eachCopermittee by the combined total Urbanized Land Area of all participating Copermittees within the geographic areaapplicable to the sharedprogram or activity. Urbanized Land Area shares shall be calculated using the most recently available San Diego Association of Governments (SANDAG) land use statistics. The Urbanized Land Area share San Diego Regional Stormwater Copermittees MOU - 5 - Fourth Amended: October 22, 2019 for the County shall include those urbanized lands in the unincorporated portion of the County that are west of the County Water Authority ( CWA) service areaboundary as it exists on the date of this MOU or asformally amendedby the CWA.
c) Ten Percent (10%) of the total cost to be sharedshall be divided equally amongst all of the Copermittees.
d) Modification of the Default Formula requires the unanimous vote of all Copermittees. For cost sharing that applies only to a group that contains fewer than all Copermittees, a unanimous vote is required of all affected Copermittees.
2) Special Formulas.
Special Formulas may be applied to any sharedRegional or WatershedGeneral Program cost and require the unanimous vote of the Copermittees participating in the cost.
3) In -kind Contributions. Subject to approval by the Copermittees participating in a particular sharedGeneral Program budget, a Copermittee may provide an in-kind contribution of equal value rather than a monetary contribution toward all or part of the cost of an activity. Copermittee in-kind contributions may include Working Body Support.
2. Work Plans and SharedCost Budgets
a. Limitations on Cost-sharing
General Program activities that may be cost-sharedby the Copermittees include collaborative urban runoff managementactivities which are 1) mandatedby or necessaryto implement requirements of the Permit, 2) necessaryto anticipate the requirements, or preparefor renewal, of the Permit, (3) required to comply with Regional Board Orders or other directives required of Copermittees as dischargersof urban runoff ( e.g., 13267 Orders, Total Maximum Daily Loads, etc.), or
4) other urban runoff managementactivities conducted with the unanimous approval of Copermittees sharing the cost or responsibility.
Examples of such activities include:
1) Development or implementation of any program requirements of the MS4 Permit, such as, the BMP Design Manual, regional education and outreach, or Water Quality Improvement Plans;
2) Public participation activities, such as facilitating public meetings and workshops;
3) Program assessment;
4) Plan updates;
5) Water quality monitoring, assessmentand reporting;
6) Annual reporting, including establishment and managementof data and information clearinghouses;
San Diego Regional Stormwater Copermittees MOU - 6 - Fourth Amended: October 22, 2019 7) Preparation of technical analyses, recommendations and comments regarding the MS4 Permit, total maximum daily loads, and other relevant storm water quality regulations;
8) Preparation of documentsrequired by the MS4 Permit, such as Reports of Waste Discharge; and
9) Special studies related to storm water quality- related pollutants, their sources, and potential best managementpractices.
b. Work Plansand SharedCost Budgets
1. No later than October 31stof each year, eachWorking Body shall prepareand submit to the Planning Subcommittee a proposed Work Plan and SharedCosts Budget for the upcoming Fiscal Year.
2. Each Work Plan shall identify the parties that will serve asa Working Body Chair, Co- chair, or Secretaryfor the upcoming Fiscal Year. Theseassignmentswill be served on a fiscal year basisand shall be for a minimum term of one year.
3. A Copermittee may not be compelled to act, or continue acting, asa Working Body Chair, Co-chair, or Secretary, and may at any time terminate an existing assignment.
Before doing so, the Copermittee shall first make a good faith effort to carry out or transfer existing responsibilities.
4. Each budget shall describe major tasks, schedules, and projected costs, which Copermittees will provide Working Body Support, Contract Administration, in-kind contributions, and any other information applicable to regional general program costs.
5. To ensurethat eachCopermittee governing body has sufficient time to consider fiscal impacts, the Planning Subcommittee shall prepare a consolidated draft Regional Work Plan and Shared Costs Budget no later than December 31st of each year for the Regional General Programs. After consideration of comments and discussion, a final Regional Work Plan and SharedCosts Budget shall be prepared, approved by the Management Committee, and distributed to the Copermittees no later than January31stof eachyear. The consolidated Regional Work Plan and SharedCosts Budget shall also identify the party or parties serving as Regional General Program operations fund managers.
6. Modifications to any adoptedRegional Work Plan and SharedCosts Budget that will result in an overall increasein cost require the approval of the Regional Management Committee.
7. Copermittees from eachWorking Body, for which costswill be shared, shall prepare, agreeupon and distribute to the participating Copermittees in that watershed, a watershed work plan and SharedCosts Budget.
8. Approval of the Shared Costs Budget for each fiscal year is subject to approval by Copermittee governing bodies as part of their regular annual budgeting process.
3. Cumulative Budget Limits
a. The total SharedCost Budget authorized under this MOU may not exceedthe cumulative limits specified for eachspending category in Table 1. These values representthe maximum amount that may be cost-sharedfor eachspending category for the duration of this MOU. They do not represent funding commitments. Once a cumulative limit has beenreached, the Copermittees must establish separateagreementsfor sharing additional costsfor that budget category. The estimated annual limits shown for eachfiscal year are for planning purposesonly. Where an estimated annual limit is not reachedin any fiscal San Diego Regional Stormwater Copermittees MOU - 7 - Fourth Amended: October 22, 2019 year, the surplus amount may be carried over into subsequentfiscal years, so long as the cumulative limit is not exceeded. Budget limits apply only to their designatedbudget category. They may not be exchangedor credited acrossbudget categories. Spending in eachbudget category may not exceedthe applicable cumulative limit under any circumstances.
San Diego Regional Stormwater Copermittees MOU - 8 - Fourth Amended: October 22, 2019 Table 1: Not- to-exceed Limits by Budget Category
FY 2019-20 FY 2020-21 FY 2021-22 FY 2022-23 FY 2023-24 Cumulative Limit
Regional Budgets $ 850,560 $ 920,800 $ 1,158,300 $ 764,000 $ 814,000 $ 4,507,660 San Luis Rey, SLR $ 1,201,200 $ 636,025 $ 655,106 $ 882,759 $ 1,013,502 $ 4,388,592 Carlsbad, CAR $ 122,600 $ 1,269,200 $ 519,200 $ 698,700 $ 847,200 $ 3,456,900 San Dieguito, SDG $ 1,071,250 $ 843,750 $ 753,750 $ 597,500 $ 547,500 $ 3,813,750 Los Penasquitos,
LPQ $ 903,125 $ 794,375 $ 673,125 $ 748,125 $ 698,125 $ 3,816,875 San Diego River,
SDR $ 2,098,688 $ 1,181,250 $ 984,375 $ 1,077,563 $ 1,391,250 $ 6,733,126 San Diego Bay,
SDBay $ 828,000 $ 770,000 $ 792,000 $ 814,000 $ 727,000 $ 3,931,000 Tijuana, TJ $ 512,000 $ 464,000 $ 471,000 $ 505,000 $ 459,000 $ 2,411,000 SDR I/ O: County of
San Diego, Cities of
El Cajon, La Mesa,
Santee
150,000 $ 150,000 $ 150,000 $ 150,000 $ 150,000 $ 750,000 Bacteria TMDL
Cities of Carlsbad,
Del Mar, El Cajon,
Encinitas, Escondido,
La Mesa, Lemon
Grove, Oceanside,
Port of San Diego,
Poway, San Diego, San
Marcos, Santee,
Solana Beach, Vista
and the County of San
Diego.
20,000 $ 20,000 $ 20,000 $ 20,000 $ 20,000 $ 100,000
Total Watershed
Management Area
WMA) Budgets
6,826,663 $ 5,403,300 $ 4,937,556 $ 5,412,247 $ 5,771,777 $ 28,351,543 Total WMAs +
Regional Budgets $ 7,677,223 $ 6,324,100 $ 6,095,856 $ 6,176,247 $ 6,585,777 $ 32,859,203 San Diego Regional Stormwater Copermittees MOU - 9 - Fourth Amended: October 22, 2019
4. Management and Payment of Funds
a. For Regional General Programs, the Copermittees shall eachpay a yearly assessmentinto one or more Regional General Program operations funds for their respective portion of any Regional SharedCostsBudget approved pursuant to this MOU. The Regional General Program operations fund shall be managedby the Regional Principal Permittee, or any other Permittee on approval of the Copermittees. b. For WatershedGeneral Programs, the applicable watershed Copermittees shall eachpay an assessmentinto one or more Watershed General Program operations funds for their assignedportion of any watershed sharedcostsbudget approved pursuant to this MOU.
Each WatershedGeneral Program operations fund shall be managedby the watershed lead permittee, or any other watershedpermittee on approval of the participating Copermittees.
c. The Copermittee managing eachGeneral Program operations fund shall provide budget balance and expenditure statusreports following the end of eachfiscal year. This shall include a detailed accounting of all costsand expensesin accordancewith the accepted work plan and SharedCosts Budget, including those incurred by Copermittees providing Working Body Support, contracting services, in-kind services, or other applicable costs. d. Each Copermittee shall pay invoices within 60 days of receipt from the Copermittee managing the applicable General Program operations fund. e. Funds collected and not expendedin any fiscal year shall be credited to the Copermittees’ shareof the next fiscal year’s costs in accordancewith the Copermittees’ defined shared costs.
f. Copermittees providing Working Body Support, Contract Administration, in-kind services, or incurring other budgeted costson behalf of other Copermittees shall provide documentation of those expensesasrequestedby the Copermittee managing the applicable General Program operations fund. They shall only receive credit for those expensesif a detailed accounting of all costsand expensesmeeting the minimum standardsagreedupon by the Copermittees has beenprovided. g. Differences in the approved actual cost of expensesfrom those budgetedshall be either credited or addedas appropriate to the amount of the Copermittees’ share. In the event that any Copermittees' shareof the next fiscal year's costsis less than the amount to be credited, the difference shall be refunded to the Copermittee. Refunds shall be provided to Copermittees no later than 90 days after final accounting. h. At its discretion, a Copermittee managing a General Program operations fund may, prior to the completion of a fiscal year, make payment to any Copermittee providing Working Body Support, Contract Administration, in-kind services, or incurring other budgeted expenditures on behalf of other Copermittees so long asall of the conditions of Section II B.4.f above have beensatisfied and there are sufficient funds available to make a payment without requiring additional contributions or jeopardizing program objectives. If for some reasonexcesspayment is made, the Copermittee receiving the payment agrees to return the additional payment without any recourseagainst the managing Copermittee.
III. REGIONAL GENERAL PROGRAMS
In addition to the requirements of Section II, the following apply to Regional General Programs.
A. Regional Principal Permittee
San Diego Regional Stormwater Copermittees MOU - 10 - Fourth Amended: October 22, 2019
1. The County is hereby designatedRegional Principal Permittee (Principal Permittee). a. The County or any other Copermittee may not be compelled to act, or continue acting, as Principal Permittee. A Copermittee may at any time terminate its assignmentas Principal Permittee but shall first make a good faith effort to carry out or transfer existing responsibilities.
b. In addition to the responsibilities of all Copermittees described in Section II, the Principal Permittee shall provide general coordination for the development and implementation of Regional General Programs, including the following tasksand responsibilities:
1) Establish, chair, and provide overall coordination and leadership of the Regional Stormwater Management Committee (Management Committee) and the Regional Program Planning Subcommittee (Planning Subcommittee).
2) Maintain a current contact list of Copermittees and interested parties. 3) Maintain knowledge of and advise the Copermittees regarding current and proposed stateand federal policies, regulations, and other NPDES programs; assistthe Copermittees in the development and presentation of positions on theseissuesbefore local, state, and federal agencies.
B. Regional Stormwater Management Committee
1. The purposeof the Regional Stormwater Management Committee (Management Committee) is to develop, approve, and coordinate urban runoff managementprograms, and to explore issuesof regional significance.
2. The Management Committee shall consist of one Representativeof eachCopermittee. Each Copermittee shall have one vote.
3. The Management Committee shall meet at least annually.
4. At a minimum, the Management Committee shall have the following responsibilities:
a. Address common issues, promote consistency among jurisdictional and watershed programs, and plan and coordinate activities required under the Permit; b. Develop, implement, and arrangefor implementation of Regional General Programs; c. Provide a general forum for informing and receiving input from stakeholdersand interested parties;
d. Provide a forum for public participation in the development and implementation of regional urban runoff managementprograms and activities; e. Review specific issuespertaining to Working Bodies, make recommendations, or conduct work in support of sharedregional priorities or objectives; f. Formally approve the recommendations, work products, and deliverables of Working Bodies presentedfor consideration;
g. Adopt an Annual Regional Work Plan and SharedCosts Budget in accordancewith the budgetary limits set forth in Table 1;
h. Approve an Annual Regional Work Plan and SharedCosts Budget; and i. Approve year-end Budget Balance and Expenditure Status Reports.
5. The Management Committee shall be chaired by the Principal Permittee or may alternatively be chaired or co-chaired by any other Copermittee. A reassignmentor changein the responsibilities of the Principal Permittee requires a three-fourths majority approval of all Copermittees.
San Diego Regional Stormwater Copermittees MOU - 11 - Fourth Amended: October 22, 2019
6. Voting Requirementsfor the Management Committee
a. For a meeting or a vote to be held, a quorum of a Two- thirds Majority of voting representativesof the Management Committee must either be presentor participate remotely via legally acceptableelectronic communication (telephone, voice over internet protocol, etc.).
b. Management Committee voting shall not be conducted outside of meetings (e.g., by email).
c. For a motion to be approved, an affirmative vote of a Simple Majority of the Management Committee is needed.
d. On approval of the Management Committee, activities undertaken by a subsetof Copermittees, but providing a regional benefit to Copermittees, may be considered Regional General Programs.
e. Approval of any shared cost requires a unanimous vote of all Copermittees participating in the cost.
C. Regional Program Planning Subcommittee
1. The purposesof the Regional Program Planning Subcommittee (Planning Subcommittee) shall be to provide regional coordination of urban runoff managementactivities, to develop and implement Regional General Programs, and to coordinate the activities of Working Bodies.
2. At a minimum, the Planning Subcommittee shall have the following responsibilities:
a. Serve as an intermediary between the Management Committee and other Copermittee Working Bodies;
b. Plan and coordinate Management Committee meetings;
c. Review specific issuespertaining to Regional Working Body( s), make recommendations, or conduct work in support of sharedregional priorities or objectives; d. Oversee, coordinate, and track the progressof As-Needed Regional Working Body(s) in developing specific work products, responding to information requests, and completing tasks;
e. Establish and maintain a calendar of Copermittee meetings and events; f. Conduct regional program planning including developing an Annual Regional Work Plan and SharedCosts Budget for Management Committee consideration and approval; g. Review and recommend Management Committee approval of work products, recommendations, and requestsof Regional Working Body(s) for consideration and approval;
h. Annually receive, review, comment on, and consolidate the recommendedWork Plans and SharedCosts Budgets of eachRegional Working ( body(s); i. Coordinate and liaise with Regional Board staff, stakeholders, regulated parties, and other interested parties to identify and explore key regional issuesand concerns. j. Provide Representationto the California Stormwater Quality Association (CASQA); k. Provide representationor participation for other professional organizations and societies as appropriate and feasible;
l. Provide regular updatesto Copermittees and interested parties via Management Committee meetings or other appropriate means (e-mail, etc.); and m. Provide subject areainput as neededfor the development, implementation, review, and revision of General Programs, and the development of associatedreports and work products.
San Diego Regional Stormwater Copermittees MOU - 12 - Fourth Amended: October 22, 2019
3. The Planning Subcommittee shall be chaired by the Principal Permittee or may alternatively be chaired or co-chaired by any other Copermittee upon approval of the Management Committee.
4. Planning Subcommittee meetings shall be open to all Copermittees; however, voting membership in any year shall be limited to one representativeof eachWatershed Management Area (WMA) listed in Permit Table a.1 except the South Orange County WMA. Any Copermittee may only representone WMA. For eachfiscal year, eachWMA will designatea Copermittee as a voting member of the Planning Subcommittee prior to the beginning of that fiscal year. Each WMA may also designatean alternate voting member.
5. Each voting member shall be considered an at-large member. Their purposeis to representthe interests of all Copermittees of this MOU rather than those of their specific WMAs.
6. The Planning Subcommittee may not alter the responsibilities of, or impose new fiscal obligations on, any Copermittee or Working Body, except as approved by the Management Committee.
However, the Planning Subcommittee may approve changesto approved Annual Regional Work Plans and SharedCosts Budgets within approved annual budget limits.
7. Voting Requirements for the Planning Subcommittee:
a. The Planning Subcommittee shall only make advisory recommendations for items requiring Management Committee approval.
b. The Planning Subcommittee may use any voting methodology it deemsappropriate to develop advisory recommendations or conduct other business, and, shall presentminority or dissenting recommendations for consideration by the Management Committee as applicable.
IV. DISPUTE RESOLUTION
Should a dispute arise among any of the parties regarding any matter related to this MOU, the parties agreeto first meet and confer in good faith to attempt to resolve the dispute. If that fails to resolve the dispute, they shall submit the matter to mediation.
1. Mandatory Non-binding Mediation. If a dispute arisesout of, or relates to this MOU, or the breachthereof, and if the dispute cannot be settled through normal contract negotiations, the Parties agreeto attempt to settle the dispute in an amicable manner, using mediation under the Mediation Rules of the American Arbitration Association [ AAA] or any other neutral organization agreedto by the parties. A mediation sessionis required before having recoursein a court of law. The cost of mediation shall be borne by the parties equally.
2. Selection of Mediator. A single Mediator that is acceptableto all Parties shall be usedto mediate the dispute. The Mediator may be selectedfrom lists furnished by the AAA or any other agreed upon Mediator. To initiate mediation, the initiating Party shall serve a Requestfor Mediation on the opposing Party.
3. Conduct of Mediation Sessions. Mediation hearings will be conducted in an informal manner and discovery will not be allowed. All discussions, statements, or admissions in the mediation process will be confidential settlement negotiations under Ca. Evidence Code section 1152. The Parties may agreeto exchangeany information they deem necessary. a. Both Parties must have an authorized representativeattend the mediation. Each representativemust have the authority to recommend entering into a settlement. Either Party may have attorney(s) or expert(s) present.
San Diego Regional Stormwater Copermittees MOU - 13 - Fourth Amended: October 22, 2019 b. Any agreementsresulting from mediation shall be documentedin writing. All mediation results and documentation, by themselves, shall be “non-binding” and inadmissible for any purpose in any legal proceeding, unless such admission is otherwise agreedupon, in writing, by both Parties. Mediators shall not be subject to any subpoenaor liability and their actions shall not be subject to discovery.
V. GENERAL PROVISIONS
A. Term of Agreement
1. This MOU shall become effective on the date the last party executesthe MOU.
2. The life of the MOU shall be effective through August 2024, or with the life of the current Permit plus twelve months, whichever is longer. For purposesof this paragraph, any permit renewal or replacementafter May 2024 shall be considered a new permit; any earlier amendmentof the Permit increasing the obligations of the Regional Principal Permittee or a WatershedLead Permittee may at that Copermittee’s sole option, be declared to be a new permit; and the Management Committee shall determine whether any other earlier amendmentto the Permit is of such significance as to effectively be a new Permit.
B. Withdrawal of Copermittee
1. Participation in this MOU may be withdrawn by any Copermittee for any reasononly after the Copermittee complies with all of the following conditions of withdrawal:
a. The Copermittee shall notify all of the other Copermittees in writing 90 days prior to its intended date of withdrawal.
b. Any expensesassociatedwith withdrawal, including but not limited to, filing and obtaining the withdrawing Copermittee’s individual NPDES permit and the amendment of the Permit will be solely the responsibility of the withdrawing Copermittee. c. The withdrawing Copermittee shall be responsible for their portion of any sharedcosts incurred according to the conditions of this MOU up to the time that eachof the conditions in Section V.B.1.a. hasbeen met.
d. Any monies paid by withdrawing Copermittee in excessof the amount due under the terms of the MOU shall be refunded to the Copermittee at the time the withdrawal becomesfinal as set forth in Section V. B.1.a.
e. The withdrawing Copermittee shall not be entitled to participate in the division of proceedsin any reservefund account when the MOU is dissolved.
C. Non- Compliance with MOU Requirements
1. Any participant to this MOU found to be in non-compliance with the conditions of this MOU shall be solely liable for any lawfully assessedpenalties resulting from such non-compliance.
Failure to comply with MOU conditions within specified or agreedupon timelines shall constitute non-compliance with the MOU.
2. Limitations on Use of Funds. Notwithstanding the rights and obligations of the Parties createdby this MOU, no Party may be found in breach of this MOU where compliance would require that Party to violate any law or grant assurance, including but not limited to provisions of the Federal Aviation Administration 1999 Policy and ProcedureConcerning the Use of Airport Revenue [64 San Diego Regional Stormwater Copermittees MOU - 14 - Fourth Amended: October 22, 2019 Fed. Reg. 7696, dated Feb. 16, 1999]; the Airport and Airway Improvement Act of 1982 codified at 49 U.S.C. § 47107(b); the Federal Aviation Administration Authorization Act of 1994, P.L. 103-305 (Aug. 23, 1994); the Airport RevenueProtection Act of 1996, Title VIII of the Federal Aviation Administration Act of 1996, P.L. 104-264 (Oct. 9, 1996), 110 Stat. 3269 (Oct. 9, 1996); 49 U.S.C. § 46301(n)(5); and 49 U.S.C. § 47133. The Parties recognize that the Authority has received federal Airport Improvement Project (“AIP”) grants containing grant assurance25, which provides: “All revenuesgeneratedby the airport . . . will be expendedby it for the capital or operating costsof the airport; the local airport system; or other local facilities which are owned or operatedby the owner or operator of the airport and which are directly and substantially related to the actual air transportation of passengersor property; or for noise mitigation purposeson or off the airport.”
D. Amendments to the Memorandum of Understanding
This MOU may be amendedonly by unanimous consent of all Copermittees. No amendment shall be effective unlessit is in writing and signed by the duly authorized representativesof the Copermittees.
E. Governing Law
This MOU shall be governed and construed in accordancewith the laws of the Stateof California. If any provision or provisions shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
The headingsusedthroughout this MOU are for convenience only and do not in any way limit or amplify the terms or provisions of the MOU.
F. Consent and Breach Not Waiver
No term or provision hereof shall be deemedwaived and no breachexcused, unlesssuch waiver or consent shall be in writing and signed by the Copermittee to have waived or consented. Any consentby any Copermittee to, or waiver of, a breachby the other, whether expressedor implied, shall not constitute a consentto, waiver of, or excusefor any other different or subsequentbreach.
G. No Indemnification
1. Each Copermittee shall have the sole responsibility to comply with the Permit.
2. Each Copermittee shall pay all fines, penalties, and costs which may arise out of such Copermittee’s non-compliance with the Permit.
3. By entering into this MOU, no Copermittee assumesliability for claims or actions arising out of the performance of any work or actions or omissions, by any other Copermittee, its agents, officers, and employeesunder this MOU.
4. By entering into this MOU, eachCopermittee agreesto defend itself from any claim, action or proceeding arising out of the acts or omissions of itself and retain its own legal counsel and bear its own defensecosts.
H. Application of Prior Agreements
This MOU constitutes the entire Agreement between the parties with respectto the subject matter; all prior agreements, representations, statements, negotiations, and undertakings are supersededhereby.
San Diego Regional Stormwater Copermittees MOU - 15 - Fourth Amended: October 22, 2019 I. Right to Audit
Each Party retains the right to review and audit, and the reasonableright of accessto other Parties’ respective premisesto review and audit the other Parties’ compliance with the provisions of this MOU Party’s Right). The Party’s Right includes the right to inspect and photocopy same, and to retain copies, outside of the Parties’ premises, of any and all records, including any and all books, records, and documents, related to this MOU with appropriate safeguards, if such retention is deemednecessaryby the auditing Party in its sole discretion. This information shall be kept by the auditing Party in the strictest confidence allowed by law.
J. Execution of Agreement
This MOU may be executedin counterpart and the signed counterpartsshall constitute a single instrument. In the event that any Copermittee is unable to executethis amendmentprior to August 31, 2019, execution of this amendmentafter that date shall constitute ratification of this amendment, and the MOU and extensions shall be in effect once all signaturesare obtained.