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HomeMy WebLinkAboutResolution - 2001-R0391 - Agreement To Execute Agreement For Storm Water Discharges With Dept. Of Transp. - 10/11/2001Resolution No. 2001-R0391 October 11, 2001 Item No. 21 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock an Agreement concerning the National Pollutant Discharge Elimination System Permit for Storm Water Discharges by and between the City and the Texas Department of Transportation with regard to the municipal separate storm sewer systems of the City and the DOT, a copy of which Agreement is attached hereto, and any associated documents, which Agreement shall be spread upon the minutes of this Council and as spread upon the minutes of this Council shall constitute and be a part hereof as if fully copied herein in detail. Passed by the City Council this 11th day of October , 2001. q � 444- WINDY ATTEST: Rebecca Garza, City Secretary APPROVED AS TO CONTENT: City Engineer APPROVED AS TO FORM: Bofiiald G. Vandiver, First Assistant City Attorney Mres/StWatCon.res September 26, 2001 STATE OF TEXAS Tl CITY OF LUBBOCK 11 Tl Resolution No. 2001-RO391 AGREEMENT CONCERNING THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM PERMIT FOR STORM WATER DISCHARGES This Agreement is entered into 11 th day of October 2001, by and between the CITY OF LUBBOCK, hereinafter referred to as the City, and the STATE OF TEXAS, acting by and through the TEXAS DEPARTMENT OF TRANSPORTATION, hereinafter referred to as the State. WHEREAS the United States Environmental Protection Agency (EPA) has promulgated regulations in 40 CFR 3122.26 requiring National Pollutant Discharge Elimination System (NPDES) permits for storm water discharges to waters of the United States to be obtained by all operators of municipal separate storm sewer systems (MS4s) located in an incorporated area with a population of 100,000 or more, and WHEREAS both the City and the State own and operate MS4s requiring NPDES permits, and WHEREAS under 40 CFR 3122.26(a)(3)(iii) the operator of a MS4 which is part of a larger system may participate in an NPDES permit application by being a co -applicant (to be a co -permittee), and WHEREAS the City and State have agreed to participate in a co -application in order to obtain a NPDES permit, and WHEREAS, the City and State desire to set forth their respective rights, responsibilities, and obligations regarding such co -application, the subsequent operation of their respective MS4s, and the implementation of their respective storm water management programs pursuant to said NPDES permit. Now, THEREFORE, for and in consideration of the premises and the mutual covenants and agreements hereinafter set forth and in consideration of the mutual benefits to be realized by the City and the State, (hereinafter sometimes referred to as "parties"), the City and State hereby agree as follows, to wit: 1. Part 1 and Part 2 of the NPDES permit application were submitted separately to the EPA by the City and State and together shall be considered a co -application; 2. The NPDES Permit was effective on December 1, 2000. It is listed the City and State as co - permittees and includes separate responsibilities for the City and State; 3. The effective date of this agreement shall be Oct. 11, 2001 4. The responsibilities that each party agrees to assume under this Agreement extend to the corporate limits of the City, but not beyond; 5. Each party is responsible for the construction, operation, and inspection of storm drainage facilities that it owns and operates, subject to regulations in 43 TAC 3 2.2 and other applicable State regulations and statutes. Each party shall be responsible for the maintenance of its storm drainage facilities as described in the Municipal Maintenance Agreement; 6. The State, and not the City, is responsible for operation and maintenance of all property and facilities that the State owns within any and all State highway right-of-way except to the extent Page I of 5 otherwise provided in State statute or regulation or in a municipal maintenance agreement between the State and the City; 7. As co -applicants, the City and the State shall each comply with the application requirements and the EPA -issued NPDES permit terms that are applicable to their respective MS4 operations; 8. Each party shall implement and update its own proposed storm water management program to EPA as a part of its NPDES permit, and each shall be responsible for its own management program elements that are approved by EPA and become conditions of the co -permit; 9. Any ordinance or municipal regulation adopted by the City with the intent or effect of prohibiting, limiting, or controlling the contribution of pollutants to the MS4, or the pollution of any surface water or groundwater, is applicable to, and may be enforced against any person (including any corporation, organization, or other legal entity) other than the State or its agents, for violations caused or occurring within the State highway right-of-way. Any State authority over the same third -party conduct is not affected by this recognition of City authority; 10. The City and the State shall each implement procedures to investigate, detect, and abate illicit connections and other unlawful discharges and improper disposal into the MS4 that each party respectively operates. The City and the State shall assist one another in tracking illicit discharges that may originate on or flow through property within their jurisdiction before entering the jurisdiction of the other. The City will assist the State in the investigation, detection, and abatement of illicit connections and other unlawful discharges and improper disposal into the State's MS4 to the extent feasible under City Ordinances; 11. The City agrees to use all reasonable efforts to regulate and otherwise control, to the extent of its jurisdiction and authority, all sources of pollution in storm water discharged onto State highway right-of-way from off that right-of-way, insofar as required by the terms of the City's storm water management program that are made conditions of the NPDES permit; 12. The State agrees to use all reasonable efforts to regulate and otherwise control, to the extent of its jurisdiction and authority, all sources of pollution in storm water that originates on the State highway right-of-way, insofar as required by the terms of the State's storm water management program that are made conditions of the NPDES permit; 13. Where illicit discharges to the State MS4 are involved, the City and the State shall consult with each other on water quality problems attributable to a third party. Where an illegal storm water discharge is identified or suspected, the City and the State will coordinate so as to arrive at a mutually acceptable response to minimize or eliminate the water quality problem; 14. In any permits, licenses, or similar authorizations or agreements executed by the State allowing or controlling utility line construction, operation, or maintenance within the State highway right-of- way (such as for telephone, natural gas, petroleum, electricity, water, or wastewater services), the State shall require compliance with all city, as well as state and federal laws controlling erosion, sedimentation, and other contributions of pollutants to the MS4 by storm water discharges Page 2of5 associated with construction, operation, or maintenance of said utility lines. The City may enforce any ordinance or municipal regulation controlling the contribution of pollutants to its MS4 against any person, other than the State or its agents, engaged in the construction, operation, or maintenance of a utility line or other facility within the State highway right-of-way; 15. In any utility construction, operation, or maintenance, or in any other activity performed by the City itself, or by its agents, upon State highway right-of-way, the City shall comply, and assure compliance, with all applicable local, state, and federal laws and regulations; 16. Upon reasonable prior notice to the State, the City shall have the authority to enter State highway right-of-way to conduct all inspections, sampling, records examination, and other activities reasonably related to monitoring compliance with municipal laws controlling storm water pollution by any person other than the State. The previous sentence notwithstanding, prior notice to the State shall not be required if emergency conditions make such prior notice infeasible or impractical or if no potential for disruption of highway use, operation, or construction exits. If the investigative actions of the City will interfere with highway operations or pose a hazard to the traveling public, the City shall withhold its investigation until the State provides traffic control for the City at the City's request; 17. If either the City or the State becomes aware of a spill, disposal, leak, discharge, or other release of oil or any hazardous substance in an amount that may be harmful, and that may flow, leak, enter, or otherwise be introduced into the MS4 operated by the other, the City or the State, as the case may be, shall promptly notify the other party of the incident, describing the location and source of the release, the type of substance, the concentration and the volume (if known), and any corrective action known to have been taken; 18. The State shall participate and reasonably share in the expense of any on-going dry -weather field screening and wet -weather monitoring required by the EPA to be conducted within the corporate limits of the City as a condition of the NPDES permit, or co -permit, issued to the City and the State for their MS4 discharges. All terms and conditions of the State's participation will be described in a separate agreement; 19. Any environmental assessments prepared by the State for highway projects within the City shall be submitted to the City, and the City shall be afforded a reasonable opportunity to comment thereon early in project development; 20. Reports and other information concerning ongoing research performed by the State related to highway operations and storm water runoff referenced in the storm water management plan included in Part 2 of the State's NPDES permit application shall be made available to the City upon request, including design procedures and standard details developed by the State as best management practices for construction activities and for permanent storm water quality structural treatment controls; Page 3 of 5 21. The State shall develop and/or participate in a public awareness program with the City. This cooperative effort will include the use of State resources to develop a program(s) aimed at public involvement and public education; 22. Responsibilities of the Parties: the State and the City agree that neither party is an agent, servant, or employee of the other party and each party agrees it is responsible for its individual acts and deeds as well as the acts and deeds of its contractors, employees, representatives, and agents. 23. This Agreement becomes effective upon final signatures of the City and the State and shall remain in effect for the duration of the NPDES permit; 24. This Agreement may be terminated by any of the following methods: a. by mutual consent of the signatories, with the approval of the EPA; b. by either party, upon failure of the other party to fulfill its responsibilities and obligations as set forth in this Agreement and/or in the NPDES Permit with the approval of the EPA; c. by either party, upon failure of the parties to reach agreement on any future agreement referenced in this contract; and, d. by either party, upon failure to agree to the amount of money satisfying the "reasonably share" language in paragraph 18 herein. If termination is due to the failure of a party to fulfill its obligations under this Agreement, that party shall be notified in writing that a possible breach of contract has occurred. The non- complying party shall then have 30 days to respond before this Agreement is terminated; 25. All references herein to the EPA as the governmental agency issuing and enforcing the NPDES permit, approving any element of a storm water management plan, approving termination of this Agreement, or otherwise affecting this Agreement shall be deemed to mean, as well, any other federal agency that may succeed to the EPA's authority, as well as the Texas Natural Resources Conservation Commission or any successor agency to it if the Texas Natural Resources Conservation Commission or its successor is delegated authority to administer the NPDES permit program; 26. If the State enters into an agreement with any other city that provides the terms and conditions of co -application for an NPDES permit for operation of MS4s by the State and that other city, and if the City of Lubbock determines that any term or condition of the agreement between the State and that other city would be preferable to any term or condition of this Agreement (in the City's sole discretion to make that determination), either by inclusion or exclusion of terms or by the use of different terms, then the State agrees to amend this Agreement, upon the City's request, to substitute or incorporate any such preferred term or condition of that other contract, or to delete any term or condition from this Agreement which is not imposed on the other city in the other agreement; 27. This Agreement contains a complete expression of the agreement between the parties, and there are no promises, representations, or inducements except as herein provided, and the terms of this Page 4 of 5 Agreement cannot be varied, modified, or amended except by the written agreement of the parties hereto; 28. The failure by either party to exercise any right or to enforce any term or condition of this Agreement in any instance shall not be deemed to constitute a waiver of that party's entitlement to exercise any right or to enforce any term or condition of this Agreement in any other instance; and, 29. In case any one or more of the provisions contained in this Agreement shall for any reason be held invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. TEXAS DEPARTMENT OF TRANSPORTATION Cut Utley, P.E. District Engineer Lubbock District Windy Si n, Mayor Attest Rebecca Garza City Secretary CITY OF LUBBOCK, TEXAS APPROVED AS TO CONTENT: arry Hertel, City Engineer APPROVED AS TO FORM: i Vanda er First Assistant City Attorney Page 5 of 5