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HomeMy WebLinkAboutContracts & Agreements_125-2016 STATE WATER RESOURCES CONTROL BOARD ORDER WR-2016-OOXX (Proposed) City of Redlands SETTLEMENT AGREEMENT AND STIPULATION FOR ENTRY OF ADMINISTRATIVE CIVIL LIABILITY ORDER Section I: INTRODUCTION This Settlement Agreement and Stipulation for Entry of Administrative Civil Liability Order ("Stipulation and Order" or "Stipulated Order") is entered into by and between the Director of the Office of Enforcement of the State Water Resources Control Board ("State Water Board"), on behalf of the State Water Board Prosecution Staff("Prosecution Staff') and the City of Redlands ("Settling Respondent") (collectively "Parties") and is presented to the State Water Board, or its delegee, for adoption as an Order by settlement, pursuant to Government Code section 11415.60. Section II: RECITALS WHEREAS, the City of Redlands is alleged to have violated section 865(c)(1) of title 23 of the California Code of Regulations, as described in EXHIBIT A to this Stipulated Order; and WHEREAS, the Parties have engaged in settlement negotiations and agree to fully settle the alleged violations without administrative or civil litigation and by presenting this Stipulation to the State Water Board, or its delegee, for adoption as an Order by settlement, pursuant to Government Code section 11415.60. The Prosecution Staff believes that the resolution of the alleged violations is fair and reasonable and fulfills all of its enforcement objectives. No further action is warranted concerning the specific violations alleged in EXHIBIT A, except as provided in this Stipulated Order, and that this Stipulated Order is in the best interest of the public. Section III: STIPULATIONS The Parties stipulate to the following: 1. Administrative Civil Liability: The City of Redlands hereby agrees to the imposition of an administrative civil liability totaling $61,000. Order WR-2016-00XX -2 - Stipulated 2 - Stipulated Administrative Civil Liability Order a. The Parties agree that $61,000 of the administrative civil liability shall be suspended ("Suspended Liability") pending completion of the water conservation Supplemental Environmental Project (SEP) as set forth herein and EXHIBIT B. 2.1 SEP Description: The City of Redlands agrees to fund the SEP described below. The SEP will benefit water conservation by creating a new citrus grove irrigation retrofit rebate program which targets a prevalent type of residential water use and launching an educational water efficiency campaign which focuses on school-aged children and their parents. 2.2 SEP Definitions: a. "Designated State Water Board Representative" —the representative from the State Water Board responsible for oversight of the SEP. That individual is: Jasmine Oaxaca, or a person who may subsequently designated by the Director of the Office of Enforcement of the State Water Board. b. "SEP Completion Date" —The date in which the SEP will be completed in its entirety. 2.3 SEP Completion Date: 6130/17. Upon a showing of good cause and upon written agreement of the Parties in advance of the SEP Completion Date, the Director of the Office of Enforcement may extend the SEP Completion Date. 2.4 Agreement of Settling Respondent to Fund, Report and Guarantee Implementation of SEP: The City of Redlands represents that: (1) it will fund the SEP in the amounts as described in this Stipulated Order; (2) it will provide certifications and written reports to the Designated State Water Board Representative consistent with the terms of this Stipulated Order detailing the implementation of the SEP; (3) it will guarantee implementation of the SEP identified in EXHIBIT B by remaining liable for the Suspended Liability until the SEP is completed and accepted by the State Water Board in accordance with the terms of this Stipulated Order. The City of Redlands agrees that the State Water Board has the right to require an audit of the funds expended by it to implement the SEP. 2.5 SEP Progress Reports: The City of Redlands shall provide monthly reports of progress on the SEP to the Designated State Water Board Representative commencing 30 days after this Stipulated Order becomes effective and continuing through submittal of the final report described below in Paragraph 2.6. If no activity occurred during a particular month, a monthly report so stating shall be submitted. Order WR-2016-OOXX -3- Stipulated 3- Stipulated Administrative Civil Liability Order 2.6 Certification of Completion of SEP and Final Reports: Within 30 days of the applicable SEP Completion Date, the Settling Respondent shall submit a certified statement of completion of the SEP ("Certification of Completion"). The Certification of Completion shall be submitted under penalty of perjury, to the Designated State Water Board Representative by a responsible corporate official representing the Settling Respondent. The Certification of Completion shall include the following: a. Certification that the SEP has been completed in accordance with the terms of this Stipulated Order, Such documentation may include photographs, invoices, receipts, certifications, and other materials reasonably necessary for the State Water Board to evaluate the completion of the SEP and the costs incurred by the Settling Respondent. b. Certification documenting the expenditures by the Settling Respondent during the completion period for the SEP. In making such certification, Settling Respondent may rely upon tracking systems used in the ordinary course of business that capture employee time, expenditures, and external payments to outside vendors such as environmental and information technology contractors or consultants. The certification need not address any costs incurred by the State Water Board for oversight. The Settling Respondent shall provide any additional information requested by the State Water Board staff which is reasonably necessary to verify SEP expenditures. c. Certification, under penalty of perjury, that the Settling Respondent followed all applicable environmental laws and regulations in the implementation of the SEP including but not limited to the California Environmental Quality Act (CEQA), the federal Clean Water Act, and the Porter-Cologne Act. To ensure compliance with CEQA where necessary, the Settling Respondent shall provide the State Water Board with the following documents from the lead agency prior to commencing the SEP; i. Categorical or statutory exemptions relied upon by the Settling Respondent; ii. Negative Declaration if there are no potentially "significant" impacts; iii. Mitigated Negative Declaration if there are potentially "significant" impacts but revisions to the project have been made or may be made to avoid or mitigate those potentially significant impacts; or iv. Environmental Impact Report (EIR) Order WR-2095-0OXX -4- Stipulated 4- Stipulated Administrative Civil Liability Order 3. Third Party Financial Audit: In addition to the certification, upon completion of the SEP and at the written request of the State Water Board Executive Director, or the Executive Director's delegee, the Settling Respondent, at its sole cost, shall submit a report prepared by an independent third party(ies) acceptable to the State Water Board Executive Director providing such party's(ies') professional opinion that the Settling Respondent has expended money in the amounts claimed by the Settling Respondent. The audit report shall be provided to the Designated State Water Board Representative within three (3) months of notice from the State Water Board Executive Director to the Settling Respondent of the need for an independent third party financial audit. The audit need not address any costs incurred by the State Water Board for oversight. 4. State Water Board Acceptance of Completed SEP: Upon the Settling Respondent's satisfaction of its SEP obligations under this Stipulated Order and completion of the SEP and any audit requested by the State Water Board, the Designated State Water Board Representative shall send the Settling Respondent a letter recognizing satisfactory completion of its obligations under the SEP. This letter shall terminate any further SEP obligations of the Settling Respondent and result in the permanent stay of the Suspended Liability. 5. Failure to Expend all Suspended liability Funds on the Approved SEP: In the event that Settling Respondent is not able to demonstrate to the reasonable satisfaction of the Designated State Water Board Representative that the entire Suspended Liability has been spent to complete the SEP for which the Settling Respondent is financially responsible, Settling Respondent shall pay the difference between the Suspended Liability and the amount the Settling Respondent can demonstrate was actually spent on completion of the SEP. The Settling Respondent shall pay the difference within 30 days of its receipt of notice of the Designated State Water Board Representative's determination that the Settling Respondent has failed to demonstrate that the entire Suspended Liability has been spent to complete the SEP. B. Failure to Complete the SEP: If the SEP is not fully implemented by the SEP Completion Date (as defined in Paragraph 2.3) required by this Stipulation, the Director of the State Water Board Office of Enforcement shall issue a Notice of Violation. The Settling Respondent shall be liable to pay the entire Suspended Liability unless the parties agree that another amount shall be due (which equals a portion thereof less than the value of the completion of any milestone requirements). A "Motion for Payment of Suspended Liability" shall be made before the State Water Board, or its delegee, for the amount of Suspended Liability assessed or if the Parties cannot reach agreement. Unless otherwise agreed or determined by a Motion for Payment of Suspended Liability, the Settling Respondent shall not be entitled to any credit, offset, or reimbursement from the State Water Board for expenditures made on the SEP. Upon a determination by the State Water Board, or its delegee, of the amount of the Order WR-2016-OOXX -5- Sfipulated Administrative Civil Liability Order Suspended Liability assessed, the amount shall be paid to the State Water Board Division of Administrative Services within thirty (30) days after the service of the State Water Board','s determination. In addition, the Settling Respondent shall be liable for the State Water Board's reasonable costs of enforcement, including but not limited to legal costs and expert witness fees. Payment of the assessed amount will satisfy the Settling Respondent's obligations to implement the SEP or remaining SEP milestones. 7. Publicity: Should the City of Redlands, or the agents or subcontractors of the City of Redlands publicize one or, more elements of the SEP, they shall state in a fmromminent manner that the project is being funded as part of the settlement of an enforcement action by the State Water Board against the City of Redlands. 8. Compliance with Applicable Laws: The City of Redlands understands that payment of administrative civil liability in accordance with the terms of this Stipulated Order and or compliance with the terms of this Stipulated Order is not a substitute for compliance with applicable laws, and that continuing violations of the type alleged in EXHIBIT A may subject it to further enforcement, including additional' administrative civil liability. 9. Party Contacts for Communications related to Stipulated Order: For the State Water Board: Jasmine Oaxaca, PE Water Resource Control Engineer iqs-T 1 ngLi)p c waterboards.cag.9y (916) 322-5327 For the City of Redlands: Cecilia Griego Water Resources Specialist L',griec Lo cit ofredlands.or (909) 798-7553 10. Attorney's Fees and Costs: Except as otherwise provided herein, each Party shall bear all attorneys' fees and costs arising from the Party's own counsel in connection with the matters set forth herein. 11. Matters Addressed by Stipulation, Release and Covenant Not to Sue the City of Redlands: Upon adoption by the State Water Board, or its delegee, this Stipulated Order represents a final and binding resolution and settlement of all claims, violations or causes of action alleged herein or which could have been asserted based on the specific facts alleged in Exhibit A as of the effective date of this Stipulated Order("Covered Matters"), The State Water Board releases and covenants not to sue the City of Redlands from and against all claims, violations or causes of action alleged in this Stipulated Order or which could have been asserted based on the specific facts alleged in Exhibit A as of the effective date of this Stipulated Order, The provisions of this Paragraph are expressly Order WR-2016-OOXX -6- Stipulated 6- Stipulated Administrative Civil Liability Order conditioned on the City of Redlands`s completion of the SEP, or in the alternative, payment of the Suspended Liability and any audit requested by the State Water Board. 12. Public Notice: The City of Redlands understands that this Stipulated Order will be noticed for a 20-day public review and comment period prior to consideration by the State Water Board, or its delegee. If the State Water Board's Executive Director receives significant new information that reasonably affects the propriety of presenting this Stipulated Order to the State Water Board, or its delegee, for adoption, the Executive Director may unilaterally declare this Stipulated Order void and decide not to present it to the State Water Board, or its delegee. The City of Redlands agrees that it may not rescind or otherwise withdraw its approval of this proposed Stipulated Order. 13. Addressing Objections Raised During Public Comment Period: The Parties agree that the procedure contemplated for the State Water Board's adoption of the settlement by the Parties and review by the public, as reflected in this Stipulated Order, will be adequate. In the event procedural objections are raised prior to the Stipulated Order becoming effective, the Parties agree to meet and confer concerning any such objections, and may agree to revise or adjust the procedure as necessary or advisable under the circumstances. 14. No Waiver of Right to Enforce: The failure of the Prosecution Staff or State Water Board to enforce any provision of this Stipulated Order shall in no way be deemed a waiver of such provision, or in any way affect the validity of the Order. The failure of the Prosecution Staff or State Water Board to enforce any such provision shall not preclude it from later enforcing the same or any other provision of this Stipulated Order. 15. Effect of Stipulated Order: Except as expressly provided in this Stipulated Order, nothing in this Stipulated Order is intended nor shall it be construed to preclude the Prosecution Staff or any state agency, department, board or entity or any local agency from exercising its authority under any law, statute, or regulation. 16. interpretation: This Stipulated Order shall be construed as if the Parties prepared it jointly. Any uncertainty or ambiguity shall not be interpreted against any one Party. The City of Redlands is represented by counsel in this matter. 17. Modification: This Stipulated Order shall not be modified by any of the Parties by oral representation made before or after its execution. All modifications must be in writing, signed by all Parties, and approved by the State Water Board or its delegee. 18. If Order Does Not Take Effect: In the event that this Order does not take effect because it is not approved by the State Water Board, or its delegee, the Parties acknowledge that they expect to proceed to a contested evidentiary Order W R-201 B-OOXX - 7- Stipulated 7- Stipulated Administrative Civil Liability Order hearing before the State Water Board to determine whether to assess administrative civil liabilities for the underlying alleged violations, unless the Parties agree otherwise. The Parties agree that all oral and written statements and agreements made during the course of settlement discussions will not be admissible as evidence in the hearing. The Parties agree to waive any and all objections based on settlement communications in this matter, including, but not limited to: a. Objections related to prejudice or bias of any of the State Water Board members or their advisors and any other objections that are premised in whole or in part on the fact that the State Water Board members or their advisors were exposed to some of the material facts and the Parties' settlement positions as a consequence of reviewing the Stipulation and/or the Order, and therefore may have formed impressions or conclusions prior to any contested evidentiary hearing on the Complaint in this matter; or, b. Laches or delay or other equitable defenses based on the time period for administrative or judicial review to the extent this period has been extended by these settlement proceedings. 19. Waiver of Hearing: The City of Redlands has been informed of the rights provided by Water Code section 1055 and hereby waives its right to a hearing before the State Water Board prior to the adoption of the Stipulated Order, 20. Waiver of Right to Petition: The City of Redlands hereby waives its right to petition the State Water Board's adoption of the Stipulated Order as written for review by the State Water Board, and further waives its rights, if any, to appeal the same to a California Superior Court and/or any California appellate level court. 21. Respondent's Covenant Not to Sue: The City of Redlands covenants not to sue or pursue any administrative or civil claim(s) against any State Agency or the State of California, their officers, Board Members, employees, representatives, agents, or attorneys arising out of or relating to any Covered Matter. 22. State Water Board is Not Liable: Neither the State Water Board members nor the State Water Board staff, attorneys, or representatives shall be liable for any injury or damage to persons or property resulting from acts or omissions by the Settling Respondent, their directors, officers, employees, agents, representatives or contractors in carrying out activities pursuant to this Stipulated Order, nor shall the State Water Board, its members or staff be held as parties to or guarantors of any contract entered into by the Settling Respondent, their directors, officers, employees, agents, representatives or contractors in carrying out activities pursuant to this Stipulated Order. Order WR-2016-OOXX Sflpulated AdmiMstrafive Civil Llablflty Order 23. Authority to Sind: Each person executing this Stipulation In a representative capacity represents and warrants that he or she is authorized to execute this Stipulation on behalf of and to bind the entity on whose behalf he or she executes the Stipulation. 24. No Third Party Beneficiaries. This Stipulated Order is not intended to confer any rights or obHgations on any third party or parties, and no third party or parties shall have any right of action Under this Stipulated Order for any cause whatsoever, 25. Effective Date: 'I"his Stipulated Or-der shall be effective an,d binding on the Parties upon the date the State, Water Board, or its delegee, enters the Order, which incorporates the terms of this Stipulation, 26. Counterpart Signatures: This Stipulation may be executed and delivered in any number of counterparts, each of which when executed and delivered shall be deemed to be, an original, but such counterartsshall together constitute one document. 27. Incorporation of Exhibits: Exhibits '"A" and "B" are hereby incorporated by reference. 11" IS SO STIPULATED. State Water Be , ProsecUi KStaff By: Christian M. Carrigan Director, Office of Enforcement Date- City of Redlands By Date, ATTEST: Szim Irwin _�' ,�� Clerk Order WR-2016-OOXX -9- Stipulated g..Stipulated Administrative Civil Liability Order Order of the State Water Board This Order incorporates the foregoing Stipulation. 1. In accepting the foregoing Stipulation, the State Water Board has considered each of the factors prescribed in California Water Code section 1055.3. 2. This is an action to enforce the laws and regulations administered by the State Water Board. The State Water Board finds that issuance of this Order is exempt from the provisions of the California Environmental Quality Act (Public Resources Code, sections 21000 et seq.), in accordance with section 15321(a)(2), title 14, of the California Code of Regulations. Pursuant to Government Code section 11415.60, IT IS HEREBY ORDERED on behalf of the State Water Resources Control Board. Christian M. Carrigan Director, Office of Enforcement Date: