MEMORANDUM OF UNDERSTANDING
BY AND BETWEEN CO-PERMITTEES
REGARDING SHARING OF COSTS ASSOCIATED WITH
PROSECUTION OF UNFUNDED STATE MANDATES CLAIM
This Memorandum of Understanding ("MOU") is entered into as of this 281h day of June 2007 by and between the following local government agencies located in San Diego County: The County of San Diego; City of Carlsbad, City of Chula Vista, City of Coronado, City of Del Mar; City of El Cajon; City of Encinitas, City of Escondido; City of Imperial Beach; City of La Mesa; City of Lemon Grove; City of National City; City of Oceanside; City of Poway; City of San Diego, City of San Marcos; City of Santee; City of Solana Beach, and City of Vista (collectively, Co-permittees") with regard to the following:
RECITALS
A. Co-permittees are individually and collectively subject to Order No. R9- 2007-0001 /NPDES Permit No. CAS0108758 ("Permit") adopted by the California Regional Water Quality Control Board, San Diego Region ("Regional Board") on January 24, 2007.
B. Neither the Regional Board nor the State Water Resources Control Board have acknowledged that any portion of the Permit constitutes a State mandate that exceeds the scope of the Federal Clean Water Act and its implementing regulations. Co-permittees believe that portions of the Permit do in fact constitute unfunded State mandates and that pursuant to Article XIII B §6 of the California Constitution, a State subvention of funds is required before Co-permittees must implement those portions that exceed the Federal requirements.
C. Co-permittees desire to pursue the issue of unfunded State mandates, and believe that the necessary administrative and procedural actions associated with the same should be jointly undertaken to present a unified and coordinated front and to achieve cost savings where possible. These actions have included and will include, but may not be limited to, the following: Petition to the State Water Resources Control Board; preparation and presentation of a Test Case before the State Mandates Commission; Petition for Writ of Mandate; Appeals; Re-hearing and potential settlement with the State Mandates Commission (collectively, "Mandates Claim").
NOW, THEREFORE, in consideration of the mutual covenants contained herein and of the Recitals, it is mutually agreed by and between the parties as follows:
1. Draft Budget. Co-permittees have prepared a draft budget of presently anticipated costs and expenses associated with pursuit of the Mandates Claim and
the elements thereof, which budget is attached hereto as Exhibit A and incorporated herein by reference ("Draft Budget"). Co-permittees acknowledge that the Draft Budget is based on information presently known, that it is only an estimate of potential costs and expenses, and agree that they will share the actual costs and expenses for the Mandates Claim as outlined herein.
2. Mandates Claim Counsel, Lead Counsel. The work contemplated by this Agreement shall be performed by the legal counsel identified in the attached Draft Budget ("Mandates Claim Co-Counsel"). Co-permittees agree that County Counsel for the County of San Diego shall be identified as lead counsel and that the County of San Diego shall be the Test Claimant in the Test Case. In the event a Test Case is filed, each Co-permittee, including those represented by Mandates Claim Co Counsel, may join as an Interested Party.
3. Obligations of Co-permittees - Petition to the State Water Resources Control Board. Except with respect to the efforts of Mandates Claim Co-Counsel as addressed in Section 5, below and Exhibit A, Co-permittees, and each of them, shall hold the remaining Co-permittees harmless from costs and expenses associated with the efforts expended by their individual attorneys in this regard.
4. Obligations in Test Case and Associated "Appeals". While County of San Diego shall prepare documents on behalf of Co-permittees for the Test Case and associated "appeals", Co-permittees acknowledge and agree that Mandates Claim Co-Counsel may assist in preparing such documents. All documents shall be distributed to each attorney for Co-permittees for review. In the event a Co-permittee joins as an Interested Party, such joinder documents shall be distributed to all individual attorneys for Co-permittees for review. Except with respect to the efforts of Mandates Claim Co-Counsel as addressed in Section 5, below and Exhibit A, Co permittees, and each of them, shall hold the remaining Co-permittees harmless from costs and expenses associated with the efforts expended by their individual attorneys in this regard.
5. Cost Sharing by Co-Permittees. Co-permittees agree that the costs and expenses associated with pursuit of the Mandates Claim shall be allocated among the Co-permittees as follows:
5.1 Co-permittees agree to utilize the formula for the allocation of costs and expenses set forth in Section IV.B of that certain NPDES San Diego Regional Stormwater Copermittees Memorandum of Understanding dated December 3, 2001, modified hereinbelow as necessary to eliminate references to entities not party to this Agreement and to individual program cost expenses not allocated by this Agreement.
5.1.1 Ten percent (10%) of the cost shall be divided equally among all Copermittees.
5.1.2 Forty-five percent (45%) of the cost shall be divided based on population. Population-based costs shall be divided among all Copermittees as follows:
5.1.2.1 The percentage of Population Share Costs for which each Copermittee is responsible shall be calculated by dividing their total population by the combined total population of all participating Copermittees within San Diego County. These percentages shall be calculated using the "Household" population figures of the San Diego Association of Governments (SANDAG) "Population and Housing Estimates" for the year 2000 or as formally updated or amended by SAN DAG.
5.1.2.2 The calculation of the County's population shall be based upon the entire population of the unincorporated County.
5.1.3 Forty-five percent (45%) of the cost shall be based on urbanized land area to be divided among all participating Copermittees as follows.
5.1.3.1 The percentage of land area costs for which each Copermittee is responsible shall be calculated by dividing their total urbanized land area by the combined total urbanized land area of all participating Copermittees within the geographic area applicable to the shared program or activity.
5.1.3.2 These totals shall be calculated using the most recently available San Diego Association of Governments (SANDAG) land use statistics.
5.2 Mandates Claim Co-Counsel shall each submit their invoices and statements of work to Lounsbery Ferguson Altona & Peak, Attn: Helen Holmes Peak, on at least on a quarterly basis reflecting such costs and expenses, and the Co permittees agree that Helen Holmes Peak shall facilitate payment for the same in the same manner and method as the Co-permittees have borne shared technical and associated costs relating to the Permit to date. Work performed by County Counsel as Mandates Claim Co-Counsel shall be accounted for and shall represent a credit in favor of Co-permittee, County of San Diego against its share of Mandates Claim costs and expenses. Co-permittees shall each submit payment for their share of such costs and expenses to Helen Holmes Peak within forty-five (45) days of receipt of Helen Holmes Peak's request for the same. Such costs and expenses shall be deemed to have accrued from and after January 24, 2007.
6. Sharing of Costs with Other Entities When Feasible. To the extent possible, Mandates Claim Counsel shall endeavor to share costs with other entities that may be pursuing their own remedies with respect to the Permit. For example, Co permittees may share the cost of the transcript of the Regional Board hearings on the Permit with the Building Industry Association.
7. Conflict of Interest. Co-permittees acknowledge and agree that Mandates Claim Counsel represent individual entities within the Co-permittee group for all purposes. Individual Mandates Claim Counsel may also have unrelated matters pending before other entities within the Co-permittee group. Participation in a joint prosecution of the Mandates Claim as contemplated by this Agreement shall not be considered to constitute representation by counsel for any individual Co-permittee of another Co-permittee, nor shall such participation be grounds to disqualify counsel or experts from representing any Co-permittee. For purposes of pursuit of the Mandates Claim, each individual Co-permittee acknowledges such other representation, or possibility of such other representation, agrees to the participation of Mandates Claim Counsel, and each of them, in the Mandates Claim, and waives any conflict of interest that may arise or be created as a result of the involvement of Mandates Claim Counsel in the Mandates Claim, or between Co-permittees and/or their counsel and experts as a result of this Agreement.
8. Joint Prosecution of Mandates Claim. Co-permittees agree that all communications between Co-permittee counsel in furtherance of the purpose of this Agreement shall be protected by the attorney-client privilege and the attorney work product privilege to the fullest extent permitted by the law. Each Co-permittee will take all reasonable steps necessary to protect such communications and information from disclosure to third parties not subject to this Agreement. If such information is demanded by any person, each Co-permittee shall assert all relevant privileges.
9. Withdrawal from Agreement. Any Co-permittee may withdraw from participation in this Agreement upon fifteen (15) days' prior written notice to the other Co-permittees, and payment of its share of costs and expenses incurred through the date of termination. If a Co-permittee withdraws from this Agreement under this paragraph, the withdrawing Co-permittee and the remaining Co-permittees will remain obligated to preserve the confidentiality of all confidential information received from or disclosed to the withdrawing Co-permittee pursuant to this Agreement. A withdrawing Co-permittee will remain obligated under Paragraphs 7 and 8 of this Agreement and will not assert participation in this Agreement as grounds for disqualification of counsel or experts of any Co-permittee and agrees to waive any conflict that may be created between Co-permittees and/or their counsel and experts as a result of this Agreement. A withdrawing Co-permittee will have no other obligation under this Agreement, with the exception of its share of costs incurred through the date of its withdrawal. Upon the withdrawal of any Co-permittee, the remaining Co-permittees shall continue to share costs and expenses in the resultant number of equal shares.
10. Breach. Co-permittees, and each of them, shall have the right, in the event of any breach of any agreement or covenant contained herein by the other parties, to exercise all of the rights and remedies, and to maintain any actions at law or suit in equity or other proper proceedings to enforce the curing of such breach of agreement or covenant. Damages, if any, arising from any breach of this Agreement shall be
limited to the amount due and owing under the cost sharing mechanism set forth in Sections 5 and 6, above, at the time of the alleged breach.
11. Notices. Unless otherwise specifically permitted by this MOU, all notices or other communications required or permitted under this MOU shall be in writing, and shall be personally delivered or sent by registered or certified mail, postage prepaid, return receipt requested, or sent by telecopy, provided that the telecopy cover sheet contain a notation of the date and time of transmission, and shall be deemed received: (i) if personally delivered, upon the date of delivery to the address of the person to receive such notice, (ii) if mailed in accordance with the provisions of this paragraph, two (2) business days after the date placed in the United States mail, (iii) if mailed other than in accordance with the provisions of this paragraph or mailed from outside the United States, upon the date of delivery to the address of the person to receive such notice, or (iv) if given by telecopier during business hours when delivered can be confirmed, when delivered. Notices shall be given at the following addresses:
To County of San Diego:
To City of Carlsbad:
To City of Chula Vista:
To City of Coronado:
Attn: Walter F. Ekard
County Chief Administrative Officer
1600 Pacific Highway, Room 209
San Diego, CA 92101
Telephone: 619-531-5250
Facsimile: 619-557-4060
Attn: Lisa Hildabrand, Interim City Manager
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Telephone: 760-434-2821
Facsimile 760-720-9461
Attn: David Garcia, City Manager
276 Fourth Avenue
Chula Vista, CA 91910
Telephone: 619-691-5031
Facsimile: 619-585-5774
Attn: Mark Achenduszko, City Manager
1825 Strand Way
Coronado, CA 92118
Telephone: 619-522-7335
Facsimile: 619-522-7846
To City of Del Mar:
To City of El Cajon:
To City of Encinitas
To City of Escondido:
To City of Imperial Beach
To City of La Mesa
To City of Lemon Grove:
Attn: Lauraine Brekke-Esparza, City Manager
1050 Camino del Mar
Del Mar, CA 92014
Telephone: 858-755-9313
Facsimile: 858-755-2794
Attn: Kathi Henry, City Manager
200 E. Main Street
El Cajon, CA 92020
Telephone: 619-441-1716
Facsimile: 619-441-1770
Attn: Phillip E. Cotton, City Manager
505 S. Vulcan Avenue
Encinitas, CA 92024
Telephone: 760-633-2610
Facsimile: 760-633-2627
Attn: Clay Phillips, City Manager
201 North Broadway
Escondido, CA 92025
Telephone: 760-839-4578
Facsimile: 760-839-4578
Attn: Gary R. Brown, City Manager
825 Imperial Beach Blvd.
Imperial Beach, CA 91932
Telephone: 619-423-8303
Facsimile: 619-628-1395
Attn: Sandra L. Keri, City Manager
8131 Allison Avenue
La Mesa, CA 91941
Telephone: 619-667-1105
Facsimile: 619-667-1131
Attn: Graham Mitchell, City Manager
3232 Main Street
Lemon Grove, CA 91945
Telephone: 619-825-3800
Facsimile: 619-825-3804
To City of National City:
To City of Oceanside:
To City of Poway:
To City of San Diego:
To City of San Marcos:
To City of Santee:
To City of Solana Beach:
Attn: Chris Zapata, City Manager
1243 National City Blvd
National City, CA 91950
Telephone: 619-336-4240
Facsimile: 619-336-4327
Attn: Peter A. Weiss, Interim City Manager
300 North Coast Hwy
Oceanside, CA 92054
Telephone: 760-735-4365
Facsimile: 760-435-3078
Attn: Rod Gould, City Manager
P.O. Box 789
13325 Civic Center Drive
Poway, CA 92064
Telephone: 858-668-4500
Facsimile: 858-668-1207
Attn: Gerald R. Sanders, Mayor
Office of the Mayor
City of San Diego
202 "C: Street, 111h Floor
San Diego, CA 92101
Attn: Paul Malone, City Manager
1 Civic Center Drive
San Marcos, CA 92069
Telephone: (760) 744-1050, ext. 3114
Facsimile: (760) 744-7543
Attn: Keith Till, City Manager
10601 Magnolia Avenue
Santee, CA 92071
Telephone: 619-258-4100 x100
Facsimile: 619-562-0649
Attn: David Ott, City Manager
635 S. Hwy 101
Solana Beach, CA 92075
Telephone: 858-720-2431
Facsimile: 858-792-6513
To City of Vista: Attn: Rita Geldert, City Manager
600 Eucalyptus Avenue
Vista, CA 92084
Telephone: 760-726-1340 x1401
Facsimile: 760-639-6132
12. No Employment. Partnership. Nothing contained in this Agreement shall be deemed or construed to create an employment, partnership, joint venture or any other similar relationship between the parties hereto or cause Co-permittees to be responsible in any way for the debts or obligations of other individual Co-permittees, or any other person.
13. Authoritv to Sign. Each Co-permittee warrants and represents that the persons executing this MOU on its behalf has full authority to do so and to bind such Co-permittee to perform pursuant to the terms and conditions of this Agreement.
14. Counterparts. This Agreement may be signed in multiple counterparts with the same force and effect as if all original signatures appeared on one copy; and in the event this Agreement is signed in counterparts, each counterpart shall be deemed an original and all of the counterparts shall be deemed to be one agreement.
15. Severability. If any portion of this Agreement shall be held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, the remaining provisions shall remain enforceable to the fullest extent permitted by law if enforcement would not frustrate the overall intent of the parties (as such intent is manifested by all provisions of the Agreement, including such invalid, void or otherwise unenforceable portion).
16. Attorneys' Fees. Should any litigation (including any proceedings in a bankruptcy) or arbitration be commenced between the parties hereto or their representatives concerning any provision of this Agreement or the rights and duties of any person or entity hereunder, the party or parties prevailing in such litigation or arbitration shall be entitled, in addition to such other relief as may be granted, to the attorneys' fees and court or arbitration costs incurred by reason of such litigation or arbitration, including attorneys' fees and experts' fees incurred in preparation for or investigation of any matter relating to such litigation or arbitration.
17. Applicable Law. This Agreement shall be construed in accordance with, and governed by, the laws of the State of California.
18. Headings. The headings in this Agreement are inserted only as a matter of convenience, and in no way define, limit, extend or interpret the scope of this
Agreement or of any particular provision hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above.
THE COUNTY OF SAN DIEGO
By: ~,L,_.... ----
hnansone
ou y Counsel
[THIS SPACE INTENDED TO BE BLANK]
THE CITY OF CARLSBAD
BY,•%~~ C Lisa Hildabrand
Interim City Manager
A a~(~>;;
Lorraill&-M. Wood, City Clerk
City of Carlsbad
[THIS SPACE INTENDED TO BE BLANK]
THE CITY OF CHULA VISTA
By: ~.J
~ViGar. ia
City Manager
Attest:
Donna Norris, Interim City Clerk
City of Chula Vista
Approved as to Form:
Bart Miesfeld, Interim City Attorney
City of Chula Vista
(THIS SPACE INTENDED TO BE BLANK]
THE CITY OF CHULA VISTA
By:~~~~~~~~~
David Garcia
Cit.Y Manager
Attest:
Donna Norris, Interim City Clerk
City of Chula Vista
[THIS SPACE INTENDED TO BE BLANK}
THE CITY OF CORONADO
Attest:
~Jri.d<.~,t
Linda K. Hascup, City ciel:Y2
City of Coronado
Approved as to Form:
orney
[THIS SPACE INTENDED TO BE BLANK]
Attest:
Mercedes Martin, Ci
City of Del Mar
Approved as to Form:
e---rLIW
Tamara Smith, City Attorney
City of Del Mar
[THIS SPACE INTENDED TO BE BLANKJ
THE CITY OF EL CAJON
By: JJ)ti,Ug.--ttr
Kathi Henry
City Manager
Attest:
Approved as to Form:
Cajon
[THIS SPACE INTENDED TO BE BLANK]
I erk
THE CITY OF ENCINITAS
By:~~>-~--
Phillip E. Cotton
City Manager
Attest:
~*~~
DebOrahCervone, City Clerk
City of Encinitas
G(ensabine, City Attorney
Encinitas
[THIS SPACE INTENDED TO BE BLANK]
THE CITY OF ESCONDI 0
Attest:
~
Marsha Whalen, City Clerko!-/:5-l/$
City of Escondido
[THIS SPACE INTENDED TO BE BLANK]
THE CITY OF IMPERIAL BEACH
By: A~ GarYR.&n
City Manager
Attest:
[THIS SPACE INTENDED TO BE BLANK]
THE CITY OF LA MESA
By:~~?fl(~
Sa ra L. Kerl
City Manager
Attest:
t •"{"''""'\ . ...... .,._.).// \
} C.~ .• ;~,--\ ,.. .....~ ~ ~~"1c;·~ •.• ,.·
Mary J. Ken(t~dy, City Clerk ··):'
City of La Mesa ( · \
'\, ... .,. \
Glenn Sabiri'e, City Attorney
City of La Mesa
[THIS SPACE INTENDED TO BE BLANK]
·~,,. ... ,,.·
THE CITY OF LEMON GROVE
~~=~--By: ~\__--"=.s~'---~._,,.~~~~~~-==
Graham Mitchell
City Manager
Attest:
Susan Garcia, City Clerk
City of Lemon Grove
Approved P.'m,: _ _,.,,,::...---~~--
es P. Lough, City Attorney
Ci of Lemon Grove
[THIS SPACE INTENDED TO BE BLANK]
Attest
Approved as to Form:
George Eiser, City Attorney
City of National City·
[THIS SPACE INTENDED TOBE BLANK]
THE CITY OF OCEANSIDE
By:cQfu lJQ;~
Peter A. Weiss
Interim City Manager
Approved as to Form:
Joj;i· Mullen, City Attorney
'--City of Oceanside
[THIS SPACE INTENDED TO BE BLANK]
THE CITY OF POWAY
City Manager
Attest:
~~
Diane Shea, City Clerk
City of Poway
Approved as to Form:
<-Y~~
LisaFoster, City Attorney
City of Poway
[THIS SPACE INTENDED TO BE BLANK]
By: ~-'---'-"-\l..>.!'-->.---l'--~-1--~___,._~
Paul Malone
City Manager
Attest:
Susie Vasquez, Cit
City of San Marc
Approved as to Form:
i!f/h~ (jW_
i9elel1H o I me'SPeaklcitY Attorney
City of San Marcos
[THIS SPACE INTENDED TO BE BLANK]
THE CITY OF SANTEE
BY ... · !ldl~!
Keith Till
City Manager
Attest
Approved as to Form:
Shawn Hagerty, City Attorney
City of Santee
[THIS SPACE INTENDED TO BEBLANK]
-----)
,.,,/
/·'
.J
[THIS SPACE INTENDED TO BE BLANK]
THE CITY OF VISTA
Attest:
Lif\c:tAt<. j)?f'cu-J
Marci K1itan, City Clerk
City of Vista
Approved as to Form:
Darold p· er, City Attorney
City of Vista