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HomeMy WebLinkAboutItem 8.5 MOU 1stAmendWaterLitig CITY CLERK File# I AGENDA STATEMENT CITY COUNCIL MEETING DATE: August 6, 2002 SUBJECT: First Amendment to Memorandum of Understanding Regarding Cooperative Implementation of Agreement to Settle Water Litigation. Report Prepared by Elizabeth H. Silver, City Attorney ATTACHMENTS: 1) Memorandum of Understanding regarding Cooperative Implementation of Agreement to Settle Water Litigation, dated December 21, 1999 2) First Amendment to Memorandum of Understanding regarding Cooperative Implementation of Agreement to Settle Water Litigation 3) Resolution approving First Amendment to Memorandum of Understanding regarding Cooperative Implementation of Agreement to Settle Water Litigation RECOMMENDATION: r~j/kj~Adopt resolution approving First Amendment to Memorandum of ~" Understanding regarding Cooperative Implementation of Agreement to Settle Water Litigation FINANCIAL STATEMENT: None DESCRIPTION: In December 1999, the City entered into a Memorandum of Understanding (MOU) with the Dublin San Ramon Services District to provide for coordination between the District and the City in planning, preparing and completing any Water Service Analysis required under the "Agreement to Settle Water Litigation" (Water Settlement Agreement), which disposed of litigation challenging certain agreements necessary for the District to provide water service to the Dougherty Valley service area. The 1999 MOU also provided that the District would keep the City informed throughout the pendency of any dispute resolution process initiated under the Water Settlement Agreement, which related to water service to the City of Dublin or the City's eastern sphere of influence. The District proposes to enter into an agreement with the City of Livermore to be called "The Th-Valley Water Retailers Cooperation Agreement." The objectives of the proposed Th-Valley Water Retailers Cooperation Agreement are to achieve a safe and reliable water supply, to acknowledge and identify issues that DSRSD and Livermore have in common, to establish a forum to enhance communication and COPIES TO: ITEM NO. 8'~ G:\CC-MTGS~2002-qtr3~UGUSTX8-6-02~as-dsrsd agmt.doc cooperation among DSRSD and Livermore, and to initiate a process for mutual and coordinated efforts to review and influence Zone 7 policies, procedures, action and non actions on water supply issues of mutual concern. The purpose of the First Amendment to the Memorandum of Understanding regarding Cooperative Implementation of Agreement to Settle Water Litigation is to clarify that the Dublin San Ramon Services District will keep the City informed throughout the District's participation in the Committee of Valley Water Retailers, which is described in the proposed Th-Valley Water Retailers Cooperation Agreement. In particular, the First Amendment provides that the District will timely apprise the City of matters which the District anticipates will be considered in the annual report which is described in the Th-Valley Water Retailers Cooperation Agreement and provide the City the opportunity to have input into those which may affect the City's interest as the land use planning agency for the areas within the City's "Planning Area." The First Amendment also provides that the District will provide the City the opportunity to have input into such matters prior to the District's consideration of the annual report. The Dublin San Ramon Services District Board will consider approval of the First Amendment at its meeting on August 6. The District will also consider approval of the Th-Valley Retailers Cooperation Agreement that same night. Staffrecommends the Council adopt the Resolution (attachment 3) to approve the First Amendment to Memorandum of Understanding regarding Cooperative Implementation of Agreement to Settle Water Litigation. G:\CC-MTGSX2002-qtr3XAUGUST\8-6-02\as-dsrsd agrnt.doc MEMORANDUM OF UNDERSTANDING REGARDING COOPERATIVE IMPLEMENTATION OF AGREEMENT TO SETTLE WATER LITIGATION This MEMORANDUM OF UNDERSTANDING is entered 'into as of December ~, 1999, by and between the DUBLIN SAN RAMON SERVICES DISTRICT ("District") and the CITY OF Du3t,rN ("City"). WH~,P,E^S, District is a community services district organized pursuan'f-to the Community Services District law (Gov't Code Section 61000, et seq.), located in Alameda and'Contra Costa Counties, and which provides retail water services to approximately 8,000 residential and commercial customers within the City. WHERE^S, on May 10, 1993, City adopted the Eastern Dublin General Plan Amendment and Eastern Dublin Specific Plan, pursuant to its Resolution 53-93 and has prepared and certified an Environmental Impact Report ("EIR") for the Eastern Dublin Gefi$~al Plan Amendment and Eastern Dublin Specific Plan. The Eastern Dublin Gener~i'Plan Amendment, Eastern Dublin Specific Plan, and EIR, together with any rezoning, subdivision maps and other City land use approvals adopted pursuant thereto are collectively referred ti> herein as"'E~stem Dublin Approvals." WHERE^S, the Eastern Dublin General Plan Amendment, Eastern Dublin. Specific Plan and City-certified EIR designate District as the preferred water service provider to areas located 1 wc-37821 v.3 ATTACHMENT ' within the planning area for the Eastem Dublin General Plan Amendment and Eastern Dublin Specific Plan and outside the current City boundaries but within City's Local Agency Formation Commission ("LAFCO") approved sphere of influence ("Eastern Sphere',). WHEREAS, City and District have entered into that certain Joint Resolution regarding District Annexation 94-1 (District Resolution No. 42-94) establishing a coordinated approach for land use and utility planning in Eastern Dublin. WHEREAS, District has been designated as the water service provider for certain property commonly referred to as the "Dougherty Valley Service Area," which is located within unincorporated Contra Costa County and within District's Local Agency Formation Commission ("LAFCO") approved sphere of influence, and a portion of which has been annexed to District's water service area. WHEREAS, on or about November 2,1999, District entered into that certain "Agreement to Settle Water Litigation" ("Settlement Agreement"), which Settlement Agreement disposes of litigation challenging certain agreements necessary for District to provide water service to the Dougherty Valley Service Area. WHEREAS, the Section 4 of the Settlement Agreement establishes certain requirements for District's evaluation of extensions of water service to the Eastern Sphere. WHEREAS, the parties desire to continue their established practice of efficient and coordinated land use and water service planning efforts for the Eastern Sphere, to ensure that 2 wc-37821 v.3 District's obligations under the Settlement Agreement are implemented in a manner that minimizes any delay to the City's land use planning process for the Eastern Sphere that might arise through the exercise of District's discretion in administering the terms of the Settlement Agreement, and to express herein their mutual intent and understanding with respect to such implementation. Now, THEREFORE, the PARTIES hereby agree as follows: 1. Coordinated Water Supply Planning. District will coordinate with the City in planning, preparing and completing any Water Service Analysis required under Section 4 of the Settlement Agreement as follows: (a) Programmatic Water Service Analysis - Eastern Dublin Approvals. Within 120 days of the effective date (as defined in Section 5) the District shall prepare and complete at its own expense an update to its Urban Water Management Plan. Concurrently with the preparation and completion of the above revision to the Urban Water Management Plan the District shall prepare and complete, at its own expense, a "programmatic" water service analysis for the Eastern Sphere (the "Programmatic Water Service Analysis") based on the Eastern Dublin Approvals as follows: (i) The Programmatic Water Service Analysis will address those items required to be included in Water Service Analyses under Section 4(b) of the Settlement Agreement and will provide the basis for the expeditious preparation of future project-specific .3 wc-37821 v.3 Water Service Analyses pursuant to the Settlement Agreement. (ii) District will update the Programmatic Water Service Analysis at least every five years (concurrently with the legally-required updates of District's Urban Water ' Management Plan) or whenever the City's planning process requires, an update. (b) Programmatic Water Service Analysis - General Plan Water Service AnalySis If City undertakes the preparation of a water service element of its general plan, District shall, within 60 days of receipt from the City of information related to the projected land uses in the general plan, prepare or update the Programmatic Water Service Analysis (as appropriate) based on the information provided by the City and based on the District's then-. current Urban Water Management Plan (c) Project-Specific Water Service Analyses. (i). District shall endeavor to prepare any Water Service Analysis and any Preliminary Impact Analysis required under Section 4 of the Settlement Agreement as expeditiously as possible so as to provide City with the information necessary for City to conduct planning and environmental review processes for the Eastern Sphere in a thorough and efficient manner. (ii) City and District shall continue to meet on a frequent and regular basis (i.e., at least monthly) to discuss the City's land use planning for areas in the Eastern Sphere. At such meetings, City and District shall agree on the needed timing for the District's completion of ~4 wc-37821 v.3 any Water Service Analysis and any Preliminary Impact Analysis required under Section 4 of the Settlement Agreement. (iii) City shall provide District with sufficient information about any proposed project in the Eastern Sphere to support a meaningful analysis by District under Section 4 of the Settlement Agreement. Within 21 days of receipt by the District of information from the City related to a prospective project (or 45 days if a Programmatic Water Service Analysis has not then been completed) the District shall complete the preparation of working drafts of (i) a Preliminary Water Service Analysis for such project (including an update of or supplement to anY Programmatic Water Service Analysis previously prepared by District as described in paragraph 1 (a) above), and (ii) any required Preliminary Impact Analysis. Provided that the City comments on the working draft or draft~ prior to the issuance of an NOI or NOP, the District shall fmalize the Preliminary Water Service Analysis within 7 days of receipt of any comments from the City on the working draft. If the City provides no comments on the working draft prior to its issuance of an NOI or NOP, the District will finalize the working draft within 30 days from the issuance of a Notice of Preparation (NOP) of an EnvirOnmental Impact Report on within 20 days of Notice of Preparation (NOI) of a Negative Declaration. (d) Other Information. District agrees that, as permitted by Section 3(a)(iv) of the Settlement Agreement, District will comply with any request by City for information regarding District's ability to serve 5 wc-37821 v.3 any area not described in Sections 3(a)(1), (2), (3) or (4) of the Settlement Agreement, including any notice, analysi's or other information reqUired to be provided under Section 4 of the Settlement Agreement. 2. Cooperation Regarding Dispute Resolution. In order to facilitate coordinated land use and water service planning, District shall (i) keep the City informed throughout the pendency of any dispute resolution process initiated under Section 8 of the Settlement Agreement that pertains to Section 4 of the Settlement Agreement and relates to water service to the City of Dublin or the Eastern Sphere ("Dispute Resolution Process"); and (ii) endeavor to resolve disputes as eXPeditiously as possible (consistent with the Settlement Agreement) and in a manner that, to the fullest extent possible, is coordinated with the City's land use planning prOcess or the LAFCO process. In furtherance of the foregoing: (a) District shall provide City with copies of all written comments received from Citizens for Balanced GroWth ("Citizens") or the City of Livermore ("Livermore") regarding any Water Service Analysis prepared bY District pursuant to Section 4 of the Settlement Agreement as and when such comments are received by District; (b) District shall promptly notify City of the initiation of any Dispute Resolution Process described above; (c) District shall apprise City of any pertinent developments in such Dispute Resolution Process and discuss same with the City prior to entering into any agreement to 6 wc-37821 v.3 resolve such Dispute Resolution Process; (d) Upon conclusion of any such Dispute Resolution Process, including the conclusion of any informal discussions under Section 8(c)(i) ofthe Settlement Agreement, District shall promptly notify City of the results of the process and will discuss with the City the appropriate means for addressing such results; (e) As may be necessary to facilitate City's land use planning process or the LAFCO process, if (i) neither Citizens nor Livermore has initiated mediation proceedings pursuant to Section 8(c)(i) of the Settlement Agreement within five (5) days of the conclusion of informal discussions under Section 8(c)(i) of the Settlement Agreement, and (ii) Citizens or Livermore continues to dispute the conclusions of the Preliminary Water Service Analysis that is the subject of the Dispute Resolution Process, District shall, after consulting with City, initiate mediation proceedings within 18 days of the date of initial notification under Section 8 (c) (i) of the Settlement Agreement. in an effort to obtain a timely determination pursuant to Section 8(c)(iv) of the Settlement Agreement of whether a Preliminary Water Service Analysis complies with Section 4(b) and/or 4(c) of the Settlement Agreement. 3. Mutual Intentions. The provisions of this Memorandum of Understanding express the mutual intentions of District and City, at all times relevant hereto, as to the meaning and implementation of the Settlement Agreement. 4. Obligations of. City. In consideration of the foregoing, City hereby agrees that it wc-37821 v.3 will not attempt to intervene in that certain litigation presently pending in Sacramento County Superior Court and which is intended to be settled in accordance with the terms and provisions of the Settlement Agreement or take any other administrative, legal or other action, whether directly or indirectly, against the Settlement Agreement or any other agreement or approval that has been or hereafter will be entered into or issued and which relates to the acquisition, transfer, conveyance, storage, treatment Or delivery of water to the Dougherty Valley as contemplated by the Settlement Agreement. 5. Effective Date. The obligations of the Pardes hereunder shall commence upon the later to occur of thirty-one days following notice of entry of Judgment in the form of Exhibit E to the Settlement Agreement (the "Judgment") or, if such Judgment is appealed, the date any and all such appeals have been resolved affirming the Judgment and become final. IN WITNESS WHEREOF, the parties hereto have caused this MEMORANDUM OF UNDERSTANDING to be executed by their respective officers as of the date first written above. wc-37821 v.3 DUBLIN SAN RAMON SERVICES CITY OF DUBLIN DISTRICT - ~/' By:~/~ By: James B. Kohnen President, Board of Directors Mayor APPROVED AS TO FORM: ~ Elizabeth Silver City Attorney 9 wc-37821 v.3 FIRST AMENDMENT TO MEMORANDUM OF UNDERSTANDING REGARDING COOPERATIVE IMPLEMENTATION OF AGREEMENT TO SETTLE WATER LITIGATION THIS FIRST AMENDMENT to the MEMORANDUM OF UNDERSTANDING REGARDING COOPERATIVE IMPLEMENTATION OF AGREEMENT TO SETTLE WATER LITIGATION, between the Dublin San Ramon Services District ("District") and the City of Dublin ("City") as of December 21, 1999, is entered into as of August 6, 2002. WHEREAS, on this same date the District has entered into an agreement with the City of Livermore entitled "THE TRI-VALLEY WATER RETAILERS COOPERATION AGREEMENT," and WHEREAS, the District and City desire to continue their established practice of efficient and coordinated land use and water service planning efforts for the areas within the City's territorial limits and those areas which the City's General Plan has included within the City's "planning area," and WHEREAS, it is important to both the District and the City that District's efforts under THE TRI-VALLEY WATER RETAILERS COOPERATION AGREEMENT are carried out in a manner that does not adversely affect or unduly delay the City's land use planning process and implementation of the City's adopted General Plan and specific plans, including the Eastern Dublin Specific Plan. NOW, THEREFORE, the District and City agree to amend the MEMORANDUM OF UNDERSTANDING REGARDING COOPERATIVE IMPLEMENTATION OF AGREEMENT TO SETTLE WATER LITIGATION as follows: A new Section 6 is added to read as follows: "6. Cooperation Reqardin.q Tri-Valley Water Retailers Cooperation A.qreement. In order to facilitate coordinated land use and water service planning, District shall keep' City informed throughout District's participation in the Committee of Valley Water Retailers ("CoVWR") which is described in Section 7 of THE TRI-VALLEY WATER RETAILERS COOPERATION AGREEMENT. In furtherance of the foregoing: (a) District will timely apprise City of matters which District anticipates will be considered in the Annual Report described in Section 5.d of THE TRI-VALLEY WATER'RETAILERS COOPERATION AGREEMENT and provide City the opportunity to have input to the District into those matters which may affect the City's interest as the land use planning agency for the areas within the City's "planning area" as described in its General Plan; and 189572 1 ATTACHMENT 2 (b) Prior to the CoVWR's consideration of the Annual Report, as described in Section 7.c of THE TRI-VALLEY WATER RETAILERS COOPERATION AGREEMENT, District will provide City the opportunity to provide input to the District on those matters which may affect the City's interest as the land use planning agency for the areas within the City's "planning area" as described in its General Plan." Except as it has been amended herein, the MEMORANDUM OF UNDERSTANDING REGARDING COOPERATIVE IMPLEMENTATION OF AGREEMENT TO SETTLE WATER LITIGATION shall remain in full force and effect. DUBLIN SAN RAMON SERVICES DISTRICT By: Cynthia G. Jones President Board of Directors Attest: Nancy Gamble-Hatfield, District Secretary CITY OF DUBLIN By: Janet Lockhart Mayor Attest: Kay Keck, City Clerk Approved as to form: Elizabeth H. Silver, City Attorney 189572 2 RESOLUTION NO. XX-02 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN A RESOLUTION APPROVING FIRST AMENDMENT TO MEMORANDUM OF UNDERSTANDING REGARDING COOPERATIVE IMPLEMENTATION OF AGREEMENT TO SETTLE WATER LITIGATION WHEREAS, City Council of the City of Dublin has been presented with a proposed First Amendment to Memorandum of Understanding Regarding Cooperative Implementation of Agreement to Settle Water Litigation; and WHEREAS, the City Manager has recommended approval of said agreement; and NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin does hereby approve the First Amendment to Memorandum of Understanding regarding Cooperative Implementation of Agreement to Settle Water Litigation, which is attached hereto as Exhibit A, and authorizes and directs the Mayor to sign said agreement. PASSED, APPROVED, AND ADOPTED this 6th day of August, 2002, by the following vote: AYE S: NOES: ABSENT: ABSTAIN: Mayor ATTEST: City Clerk G:\CC-MTGS~2002-qtr3~AU GU S'R8-6-02\reso-dsrsd agmt. DOC ATTACHMENT 3