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Home My WebLink About10-26-1999 Agenda Item 8 staff report SARATOGA CITY COUNCIL EXECUTIVE SUMMARY NO. AGENDA ITEM Saw MEETING DATE: October 26, 1999 CITY MANAGER: l. / GAN � �lo ORIGINATING DEPT.: CITY MANAGER DEPT. HEAD: SUBJECT: Status report on Saratoga Creek Settlement Agreement Activities The following briefly describes the status of each of the activities in connection with the Saratoga Creek Settlement Agreement: A. No-dumping stencils—As previously reported, these have been installed per the terms of the agreement. B. Warning signs—Since the previous report, staff has met with Friends of Santa Clara Creeks and identified all locations for both the creek and outfall warning signs. All signs were installed shortly thereafter. C. Water Quality Testing—The second round of samples collected from Saratoga Creek by City staff and FoSCC on October 4 were analyzed by the Santa Clara Valley Water District's Water Quality Lab. The results were reported on October 8 and are attached. Note high counts at Wildwood (Fourth Street) and Saratoga-Sunnyvale outfalls. These continue to be investigated. A third round of creek sampling is scheduled for October 25. D. Storm Drain Maps—City staff continues to refine the storm drain maps being produced on the City's new GIS system. Targeted completion continues to be the end of the year. E. Discharge Response Plan—Publication of the Plan in the Saratoga News was put on hold pending resolution of issues in connection with recent SFD response to a reported discharge incident. City remains concerned about SFD's willingness to handle responses as previously agreed to. Assuming concerns can be addressed, Plan will be published in November. If concerns cannot be satisfactorily addressed, Plan will need to be modified before it is published. F. Storm Drain Sag Repair—Both sags were cleaned in May and August. Fourth Street sag may be cleaned one additional time pending results of further sampling of storm drain system leading to Wildwood outfall scheduled for October 25. Future repair of sags to occur when SFD Fire Station is rebuilt, and when Fourth Street Bridge is replaced. G. Non-storm water effluent from the outfall at Saratoga-Sunnyvale Road—City continues to work closely with Friends of Santa Clara Creeks to pinpoint sources of high fecal effluent. Recent samples collected on August 27 and September 10 showed low fecal concentrations (see attached lab reports). However, samples analyzed by SCVWD on October 4 showed high concentrations again at the outfall. Additional sampling is scheduled for October 25. H. Septic System Phase-Out—Lists of properties served by septic systems were received from both sanitary sewer agencies in September. Since then, City's contractor converted the lists from APN to situs address so staff can begin implementation of new sewage disposal ordinance. City Manager, City Attorney, and Community Development Director to meet to discuss implementation strategies and options. Initial Notices to property owners commencing 180 time clock anticipated to be mailed in November. I. Attorney's fees and costs—Second installment payment to Plaintiff's attorneys made on July 1. Third and final installment to be paid on July 1, 2000. Santa Clara Valley Water District Laboratory 400 More Ave.,Los Gatos,CA 95030 1-1 N - CERTIFICATE OF ANALYSIS - To: City of Saratoga Attn: Larry Perlin Report Date: 08-Oct-99 0 03 Phone: EXt: 13777 Fruitvale Ave. FAX: (408)868-1281 N A Saratoga,CA 95070 Source Your Sample ID Our Lab#: Collect Date Collect Time Parameter Name Result Test Units PSC Pierce/Springer 9910040078 10/4/99 10:28 E.Coli by 15 Tube MPN Method 130 MPN/100m1 Fecal Coliforms by 15 Tube MPN Method 130 MPN/100m1 Total Coliforms by 15 Tube MPN Method 500 MPN/100m1 WO Wildwood Outfall 9910040079 10/4/99 11:14 E.Coli by 15 Tube MPN Method 27000 MPN/100m1 Fecal Coliforms by 15 Tube MPN Method 80000 MPN/100m1 Total Coliforms by 15 Tube MPN Method 300000 MPN/100m1 WDC Wildwood Downstream 9910040080 10/4/99 11:23 E.Coli by 15 Tube MPN Method 130 MPN/100m1 Fecal Coliforms by 15 Tube MPN Method 130 MPN/100m1 Total Coliforms by 15 Tube MPN Method 1700 MPN/100m1 SSO SS Road Outfall 9910040081 10/4/99 11:41 E.Coli by 15 Tube MPN Method 8000 MPN/100m1 Fecal Coliforms by 15 Tube MPN Method 8000 MPN/100m1 Total Coliforms by 15 Tube MPN Method 8000 MPN/100m1 Page 1 of 2 (\ 0 Source Your Sample ID r+ Our Lab#: Collect Date Collect Time Parameter Name Result Test Units N SSDC SS Road Downstream l0 9910040082 10/4/99 11:46 l0 E.Coli by 15 Tube MPN Method 170 MPN/100m1 0 CO Fecal Coliforms by 15 Tube MPN Method 170 MPN/100m1 t✓ Total Coliforms by 15 Tube MPN Method 1300 MPN/100m1 HDC Herriman 9910040083 10/4/99 12:08 E_Coli by 15 Tube MPN Method 300 MPN/100m1 Fecal Coliforms by 15 Tubc MPN Method 300 MPN/100m1 Total Coliforms by 15 Tube MPN Mcthod 1300 MPN/100m1 CDC Crestbrook 9910040084 10/4/99 12:35 E.Coli by 15 Tube MPN Method 300 MPN/100m1 Fecal Coliforms by 15 Tube MPN Method 300 MPN/100m1 Total Coliforms by 15 Tube MPN Method 700 MPN/100m1 PDC Prospect 9910040085 10/4/99 13:04 E.Coli by 15 Tube MPN Method 140 MPN/100m1 Fecal Coliforms by 15 Tube MPN Method 140 MPN/100m1 Total Coliforms by 15 Tube MPN Method 800 MPN/100m1 Results values of "N.D."reflect the California Department of Health Services detection limit for reporting(DLR). These results have been reviewed and their authenticity verified by: �•� - /1 Z1gg la es N Scott,Laboratory Supervisor Senior Chemist 0 Page 2of2 W Oct- 12-99 08: 14A P . 04 Chain of Custody Record Saratoga Creek Coliform tests Date samples were collected: /o 'V- 99 Sample location ID: Time collected: Notes PSC (Pierce/Springer) 10: g AA. , wo (Wildwood outfall) / l :rLI A. 4. . WDC (Wildwood downstream) r/:,'3 1. ,y. SSo (SS Road outfall) 11 ;'-// A. M . SSDC (SS Road downstream) (J:q` A. m . HDC (Herriman) )2.'0 8 P./y1 i CDC (Crestbrook) /2:3S Pin. PDC (Prospect) I:0/Pin. 1 I The above samples were collected by; Primed name: 8/1 p , / i -rwuEEN Signature: / 7...„,,,,7_, /V Printed name: Signature: The above samples were delivered to Printed name: the laboratory by: RPlk Al Aligi. }ij rr x/ SCIENTIFIC ENVIRONMENTAL .II►. , LABORATORIES, INC. City of Saratoga Released : 9-3-99 13777 Fruitvale Avenue Lab ID : M997111-M997113 Saratoga, CA 95070-5151 Recv'd : 8-27-99 Col'd : 8-27-99 Attn: Mr. Larry Perlin Sampler : Bryan Analyst : SF Analyzed: 8-27-99 Matrix : Liquid Source Results Total Coliform Fecal Coliform (cfu/100m1) (cfu/100m1) @0840 Blaney Plaza(New location) 30,000 200 @0940 Blaney Plaza(New Location) 22,000 180 @1045 Blaney Plaza(New Location) 22,000 200 Total Coliform Std. Method 9222B Fecal Coliform Std. Method 9222D Shui Fong SF:dc Director, ter Laboratory State Certified Water Laboratory for Chemical and Biological Examination 924 Industrial Avenue Palo Alto, CA 94303 650 856-6011 FAX 650 856-4281 2 Ir/)k ,1_ SCIENTIFIC ENVIRONMENTAL LABORATORIES, INC. City of Saratoga Released : 9-17-99 13777 Fruitvale Avenue Lab ID : M997389-M997398 Saratoga, CA 95070-5151 Recv'd : 9-10-99 Col'd : 9-10-99 Attn: Mr. Larry Perlin Sampler : Don/Bryan/Sergio Analyst : SF Analyzed: 9-10-99 Matrix : Liquid Source: 990910 Results Total Coliform Fecal Coliform (cfu/100m1) (cfu/100m1) S4-1 >20,000 500 S3A-1 2,400 < 10 S2-1 >20,000 300 S2A-1 16,000 50 S i-i >20,000 10 S4-2 800 < 10 S3A-2 2,400 < 10 S2-2 16,000 < 10 S2A-2 16,000 20 S1-2 >20,000 200 Total Coliform Std.,Method#9222B Fecal Coliform Std. Method #9222D Shui Fong SF:dc Director,Wa er Laboratory State Certified Water Laboratory for Chemical and Biological Examination 924 Industrial Avenue Palo Atto, CA 94303 650 856-6011 FAX 650 856-4281 1 MUTUAL RELEASE AND SETTLEMENT AGREEMENT San Francisco BayKeeper, Inc. and Friends of Santa Clara County Creeks (collectively, "Plaintiffs"), and the City of Saratoga ("the City"), hereby enter into the following Mutual Release and Settlement Agreement ("Agreement"). This Agreement is the result of extensive settlement discussions, undertaken in good faith and at arm's length, whereby Plaintiffs and the City have agreed to settle their disputes without asserting, admitting or conceding that any of the allegations or contentions of any party are true or correct. I. THE CITY'S PROJECTS A. No-dumping stencils. By May 1, 1999, the City shall make its best effort to assure that no-dumping signs are stenciled next to storm drain inlets in primary potential problem areas, such as those in parking lots serving commercial areas and in alleyways in the Village commercial area, and that the signs are maintained in legible condition. Signs within the Saratoga Fire Department's jurisdiction are to identify the Saratoga Fire Department's telephone number as the number to call to report illegal discharges. B. Warning signs. By May 1, 1999, the City shall install, and thereafter maintain, two types of signs: Sign Type 1: The purpose of this type of sign is to warn people to avoid contact with Saratoga Creek ("Creek") water where levels of water pollution commonly exceed EPA recreational water contact criteria. All signs are to be placed where children are most likely to be close to the Creek, such as in Wil.dw'od Park and at points of easy access near schools. Sign Type 2: The purpose of this type of sign is to warn children to stay away from storm drain outlets. These signs are to be placed immediately above or beside major outfalls. The signs are to be designed to be understood by children as young as possible. The City shall determine appropriate locations for the signs in consultation with the Coyote Creek Riparian Station investigators who have inspected the entire span of the Creek. Thereafter, the City shall solicit public input on proposed sign locations at a City Council meeting. Signs will be placed such that they have minimum impact on views from private property. C. Water quality testing. At least three times each year (as near as is reasonably possible to May 15, July 15, and September 15, but at least seven days after the last rainfall in Saratoga), beginning in May 1999,the City shall conduct coliform tests of samples of steady-state Creek water, i.e., samples that are not influenced by stormwater runoff. At a minimum, samples shall be collected at the following locations in Saratoga Creek: (1) Springer Ave., (2) the downstream border of Wildwood Park, and (3) Crestbrook Drive. A sample shall also be collected of effluent from the main outfall beneath Saratoga-Sunnyvale Road. Tests shall be for total coliform and fecal coliform, with dilution as necessary to determine levels up to 160,000 MPN/100mL. Within ten days after receiving each set of test analysis results, the City staff shall transmit a memorandum describing the results (1) to the City Council, and (2) to Plaintiff Friends of Santa Clara County Creeks. At the earliest reasonable opportunity, the City Council shall place on its agenda a review of each memorandum. Each memorandum shall include an attachment explaining EPA's fecal coliform criteria, in a form approved by Plaintiffs. D. Maps of storm drains. Within one month of the execution of this Agreement, the City shall prepare, and thereafter maintain(or cause to be prepared and maintained) professional quality maps of all storm drains, overlaid on copies of West Valley Sanitation District's (WVSD) sewer line maps, or equivalent. E. Discharge response plan. The City shall make the following improvements in illicit discharge response procedures: (1) Accept the offer by Fire Chief Ernie Kraule to assume primary responsibility for initial investigations. (2) Assure that City personnel such as code enforcement officers,building inspectors, and street maintenance workers understand the City's discharge response obligations under its NPDES permit. (3) Assure that the personnel who will respond are trained to do it effectively. Hold drills. (4) Assure that complete maps of the storm drain system are immediately available to personnel who may have to investigate discharge reports. Assure that primary response personnel know where the most important drain lines, outfalls, and manholes are. (5) Assure that the plan will work after normal working hours, on weekends, and on holidays. (6) Have enforcement personnel and/or building inspectors occasionally check construction sites for obvious signs of illegal discharges into storm drains -- either direct discharges, or placement of dirt, debris, or other materials where rain will flush them into storm drains. Document these checks. (7) Have community service officers regularly check the areas around garbage containers in commercial districts for code violations where violations have occurred repeatedly in the past. Document these checks. (8) Through annual publication in the Saratoga News and/or by mail as an insert accompanying solid waste(garbage) disposal bills, describe the City's discharge response plan to residents and publicize that anyone seeing an illegal discharge within the Saratoga Fire District's jurisdiction should call the Fire Department's 7-digit number. Assure that persons answering the City's main telephone number know that if they receive a call reporting a discharge, they should instruct the caller to call the Fire Department, or 911 if there is no alternative. (9) Assure that City ordinances allow, to the extent allowable under state and federal law, reasonable and prompt access by investigators to storm drain inlets on private property • who are tracing illegal discharges in progress. Assure that investigators are informed of the legal requirements for access to private property under these circumstances. F. Repair of sags in major storm drains in village area. (1) The City agrees to schedule replacement of the 4th Street bridge as the next project to be completed after the Quito Avenue bridge replacement, at which time the sag in the 4th Street line will be eliminated. The City also agrees to require elimination of the sag in the Saratoga Avenue line as a part of the renovation of the Saratoga Fire Station when such renovation takes place. (2) Until the sags have been eliminated, the City will periodically clean the sagged areas, at a minimum once annually, in August,beginning in August 1999. G. Non-stormwater effluent from the storm drain outfall at Saratoga-Sunnyvale Road. The City shall make a rigorous effort to identify the source(s) of, and reduce to an acceptable level(as defined below),the fecal coliform in the non-stormwater effluent emanating from the storm drain outfall at Saratoga-Sunnyvale Road. If the City does not succeed in this effort by August 1, 1999,the City shall engage a consultant, approved by the Plaintiffs, to advise the City on how to resolve the problem. The City shall promptly and fully inform Plaintiffs of its investigative and remedial plans and actions. The City shall continue its source identification and remedial actions until the fecal coliform level for this outfall is acceptable. The fecal coliform level will be deemed "acceptable" if, in five consecutive tests of non-stormwater(dry weather) outfall effluent, with samples collected at intervals of not less than two days nor more than 7 days, no sample exceeds a fecal coliform level of 400 MPN/100mL, and the geometric mean of all samples does not exceed 200 MPN/100mL. H. Septic system phase-out. By March 30, 1999, the City Council shall place on its agenda consideration of an ordinance to require the elimination of septic tanks as soon as reasonably possible. The City shall make its best effort to identify, within six months of the execution of this Agreement, the locations of all septic systems in the City, beginning with identification of septic tanks near Saratoga Creek. II. ATTORNEYS' FEES AND COSTS The City shall pay Plaintiffs a total of$84,000 in full settlement of all claims for fees and costs (representing $75,000 in attorneys' fees, and $9,000 in out-of-pocket and expert witness costs). The City shall make three payments of equal size according to the following schedule: Upon execution of settlement Agreement: 1/3 July 1, 1999: 1/3 July 1, 2000: 1/3 Payments shall be made payable to Earthjustice Legal Defense Fund, and should be directed to: Attn: Claudia Polsky 3 Earthjustice Legal Defense Fund 180 Montgomery Street, Suite 1725 San Francisco, CA 94104 III. REPORTING On October 15, or thirty days after the last water quality tests of the dry season, whichever is later, the City shall annually submit to Plaintiff Friends of Santa Clara County Creeks a report indicating its activities in compliance with this settlement on an item-by-item basis. This report shall contain copies of all test results obtained pursuant to ¶C and¶G, any maps produced pursuant to ID (one submittal only), and the text of any ordinance passed pursuant to¶H (one submittal only). Reports should be directed to: Friends of Santa Clara County Creeks c/o Don Whetstone EISI 14395 Saratoga Avenue Saratoga, CA 95070 IV. DISMISSAL OF LITIGATION Upon execution of this Agreement, the parties shall lodge the Agreement with the Court and concurrently stipulate to dismiss this litigation without prejudice. The parties shall additionally stipulate that the Court retains jurisdiction to vacate the order of dismissal on the motion of either party filed on or before October 1, 2003, for the purposes of entering a judgment under the terms of this Agreement. On October 1, 2003, in the absence of any pending action by any party to enforce this Agreement or any pending motion by any party to reopen this action, the dismissal shall ripen into a dismissal with prejudice. V. OTHER PROVISIONS A. Each of the parties represents and warrants that, in connection with the negotiation and execution of this Agreement, it has been represented by independent counsel of its own choosing, it has executed this Agreement after receiving the advice of such counsel, and its representative(s)have read and understand the provisions and terms of this Agreement. B. The undersigned counsel for Plaintiffs and the City each certify that they are fully authorized by the parties whom they represent to enter into this Agreement and legally bind their respective parties to its terms. The provisions of this Agreement shall bind the parties, their respective agents, and all those persons, firms, and corporations who are or will be acting in concert of privity with them. 4 THE UNDERSIGNED ACKNOWLEDGE THAT THEY HAVE READ THIS AGREEMENT IN ITS ENTIRETY AND FULLY UNDERSTAND ITS TERMS: DATED: April , 1999 CITY OF SARATOGA BY: )4/Wt. Shaw, Mayor DATED: April , 1999 FRIENDS OF SANTA CLARA COUNTY CREEKS BY: �:�� /, Don Whetstone, President DATED: April , 1999 SAN FRANCISCO BAYKEEPER, INC. BY: Michael R. Lozeau, Executive Director APPROVED AS TO FORM AND CONTENT: Claudia Polsky, Esq. Earthjustice Legal Defense Fund 180 Montgomery Street, Suite 1725 San Francisco, CA 94104 (415) 627-6725 BY: Claudia Polsky Attorney for San Francisco BayKeeper, Inc. and Friends of Santa Clara County Creeks Michael S. Riback .Meyers,Nave, Riback, Silver & Wilson 777 Davis Street, Suite 300 San Leandro, CA 94577 (510) 351-4300 ./7/Z Michael S. Riback Attorney for the City of Saratoga 5