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HomeMy WebLinkAboutFriant Division Long Term Water Contractors MOU to Develop Water Allocations for Salmon FisheryAi�ry pof ��� ' ` FRESNO REPORT TO THE CITY COUNCIL 17 2009 RENE A. RAMIREZ, D'rrector*A Department of Public Utilities LON M. MARTIN. Assistant Director L.PI. Department of Public Utilities AGENDA ITEM NO. I r COUNCILMEETING III Oy AxPdnydB BY cl TUW Nidga APPROVE THE MEMORANDUM OF UNDERSTANDING BETWEEN THE LONG-TERM WATER CONTRACTORS AND CROSS VALLEY CANAL CONTRACTORS REGARDING MEDIATION SERVICES TO DEVELOP WATER ALLOCATIONS FOR RESTORING A SELF-SUSTAINING SALMON FISHERY IN THE SAN JOAQUIN RIVER AND AUTHORIZE REIMBURSEMENT COSTS FOR MEDIATION SERVICES NOT TO EXCEED 54,930 RESULT AREA "' N'nxi urce Management Tr Staffs recommends approving Me Memorandum of Understanding (MOU) and authorizing the Director of Public Utilities to sign on behalf of the City of Fresno and authorizing the reimbursement for mediation services not to exceed 54,730. EXECUTIVE SUMMARY On Apol 6, 2007, the City of Fresno (City) approved an amendment to its Long Tenn Class I Water Contra that stipulated all contractors are to participate in the restoration of a self-sustaining salmon fishery in the S Joaquin River. Essentially the City's water delivery is subject to the Order Approving Stipulated Settleme the Judgment and further aiders issued by the Court pursuant to Settlement In Natural Resources Defer Council, of al v. Rodgers, of al The Settlement requires the U.S. Bureau of Reclamation (USER) to reston self-sustaining Chinook Salmon fishery (and other fish) downstream of the giant Dam and all Friant and C¢ Valley Contractors are to provide the water supply. In addition to hydraulic conditions, Fresno's water supl will be reduced annually, by as little as 2% or as much as 12% as a result of the San Joaquin River restore settlement Friant Water Users Authority (IrWrl Is tasked with assembling all impacted contractors develop a water reduction formula in order to provide water for the fishery. They have proposed, and the C Is willing to participate In, a voluntary mediation effort to agree upon methods and procedures for equite allocating water amongst all Errant and Crass Valley Contractors. Fresno will be one of 27 other Cities a Irrigation Districts (Mediating Parties) entering into the MOU. Fresno's prorated share of the costs mediation services will be approximately 54,300 and staff is requesting authorization for a 10% Cdntingen $430. The total expenditure is not to exceed U 730. KEY OBJECTIVE BALANCE Participation in the formutabon of the water allocations for the San Joaquin River (River) fishery is e due to resulting Impacts to the City's water supply and future development. Council action on this deftness the three key objectives of customer satisfaction, employee satisfactionand financial mana IUBJECT TO MAYOR'S VETO allowing fire City to partner with 27 other agencies to best formulate water contribution expectations shriving each others Infrastructure. Customer satisfaction is achieved by constructing a water supply intention that minimizes the impact to customers and new development. In December 1988 the case known as Natural Resources Defense Council v Rodgers was fled by a collection of 14 environmentalists and fishing organizations (Plaintiffs). daiming that the USSR violated the federal Environmental Policy Ad. In 1992 the Plaintill amended their complaint to add a claim that the Bureau had violated the California Fish S Game code) plaintiffs assert Section 5937 requires the USBR to release hrufcienP water from Full Dam to keep the fish below the dam in good cendifon. This claim became the foal point of the litigation. In 2005 and 2006. Senator Feinstein and Representative Radonovicir encouraged settlement negotiations and en participated at times. After a series of Settlement attempts and Congressional Budget Office hurtles the House Natural Resources Committee approved the proposed Settlement legislation. The legislation is making Its way through Congress and seems to have the support necessary for approval. The Settlement legislation only identifies the amount of water and delivery timing to sustain a fishery, not how the water will be made available. The FWUA is tasked with assembling all impacted contractors to develop a water reduction formula in order to provide water for the fishery. They have proposed and the City is willing to participate in a voluntary mediation effort to agree upon methods and procedures for equitably allocating water amongst all Front and Gross Valley Contractors. Fresno will be one of 27 other Cities and Irrigation Districts entering into the MOU. The first water releases for the hall program will start In October 2009. Prior to Odell an environmental analysis has to be completed and it is necessary to include the results from these mediation efforts which will identify the water supply methodology. Although City Attorney's Office has reviewed the MOU and has approved it as to form, they have requested the Department of Public U piles (DPU) to send separate correspondence clarifying the mediation effod is voluntary and not binding. When the approved MOU Is returned to the FWUA, DPU will Include separate correspondence with the MOU addressing this issue as requested by the City Attorney's Office. FISCAL IMPACT As part of the FY 2009 Annual Budget, within the Water Enterprise Fund Account 53306 — Outside Legal Services, are unallocated savings from other projects that can he encumbered for this MOU. Therefore, no additional funds or transfers will be required. Attachment'. Memorandum of Understanding Memorandum of Understanding between and among Participating Friant Division Long -Term Water Contractors and Cross Valley Canal Contractors Regarding Mediation of Certain Aspects of Implementation of the Settlement in Natural Resources Defense Council, at al. v. Kirk Rodgers, at al. A. Preface This Memorandum of Understanding (the "MOU') is entered into between and among the codes itined each of which is a Cemml Valley Project Form Division or Class Valley Canal water service connector (`Mediating Cmatece ). The Mediating Parties we parties affemel by the Potassium of Settlement dated September 13, 2006, in the matter of Natural Resource, Defense Council, at al., c. Kirk Rodgers, u al, Um teal States District Court Case No. CIV -S-88-108 LKK/GGH ("Settlmtrnt"). As a mull of the Settlement he Mediating Parties expect to suffer actual or potential water supply losses. The Mediating Parties believe that it is in the best interests of each to engage in a voluntary, confidential, pnvilegel, and non -coercive process in which each may work with the ethers to agree upon methods and procedures for equitably allocating such water supply impacts reading from the Seed®tet and the Water Management Goal measures of dte Settlement (including Title III of the impimnmting legislation) to avoid such water supply impacts between and among The. Mediating Parties.. B. Assortment to Mediate I. Engagement of Mediator For the convenience and benefit of the Mediating Pardee, FW1UA shall Forthwith retain fames C. Waldo, of Gordon, Throws, Honeywell, Malcolm. Potential & Guinan LLP, Seattle, Washington ("Mediator), to act as a Mediator between and among the Mediating Ponies. and FWUA, in a mediation consulting capacity, shall assist the Mediator and may retain additional consultants necessary to facilitate commtmicauon between and among the Mediator and the Mediating Parties to assist them in reaching one or mum mutually acceptable agreements. In connection with the same, the Mediator and addiuomal cunsWtentt shall be retained by written agreement between the additional consultsnts and FWUA. 2. Participation To Mediation Each of the Mediating Parties shall cooperate add fully participate in the Mediation in good faith, and shall saend its hest efforts towards achieving mutually acceptable resolution of all disputed issues that may he subject to the Mediation. 3. Confidentiality and Privilege Each of the Mediating Parties ackmwledgat that it understands that the Mediator, FWUA and its staff and any additional mediation consultams retained hrreandermay not one information the is acquired in confidence in the course of the Mediation outside of the Mediation must maintain impartiality towards each of the Mediating Parties; most make reasonable efforts to keep informed about matters that could raise questions about the Mediator's ability m wndue the Mediation impartiallyand must then disclose such manor to the Mediating Parties; and must procerve the confidentiality of Mediation communications as required by California Evidence Code §§ 1115 through 1129, which provide, in pan, that all eommuniceetu, aogmiations, or.cetticneat discussions, by, between or among the MNiating Parties in the mors¢ of the Mediation shall remain confidential, and that no evidence of anything said or any admission made, Or any writing prepared, disclosed, or used, for the purpose of, in the course of, or favored to the Mediation, shall be admissible or subject to discovery, and that, furthermore, nitre of fie Mediating Parties nor the Mediator. FWUA and its staff or additional consultants may be compelled in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding; to disclose the same. 4. Compensation of Mediator In its engagement of the Mediator and consultants F W11A shall function as an administrator, advandng all lets and costs charged by the Mediator and consultants under Ne women engagement agfeement between the Mediator/Comoltants and F WUA Upon written notice or invoice from FWUA, the Mediating Parties shall reimburse MCA for all sums an paid to the Mediator in the proportions described in Exhibit A, attached mrcm, and inmrpmated heart by this referenm, in a combined aggregate amount not to created $115,000 unless agreN otherwise by amendment ofthis MOU pursuant to Part C.2, below. It is acknowiedgcl that the proportions described N ExWbit A may be adjusted to relent the actual Mediating Parties signatory to this Mediation Agreement, C. General Provisions I. Effective Date This MOU is effective December I, 2OW& 2. Minimum Participation This MOU shall only be effective upon participation of senators listed in Exhibit A that results m a 75% or greater financial Participation. 2. Modification or Amendment Any provision of his MOU may be modified or amended, including modification to add parties, only by women agreement executed by all of the Mediating Parties. 3. Withdrawal from MOD Any of the Mediadng Parties may withdraw from Nis MOU upon written notice to each of the other Minimag Paries, provided, however. the the obligation of a withdrawing party to reimburse FWUA for its proportionate share of the charges of the Mediator shall continue with respect to all services rotational, and costs incurred, by the Mediator through the last day of the calendar month in which such written notice of withdrawal. is provided. 4. Execution This MOU shall be subject to the California Umberto Electronic Transactions Act, and may be signed in one or more coumaparts, each of which, when executed and delivered, shall he an original, and all of which together sial I constitute one instrument, with the same force and effect as though all signatures appear l on a single document and signatures transmitted elechonicalig whether by fax, e-mail, e-mail attachment, or digital or photographic image, shall have the same force and effect as an original signature. 5. Authority Each person executing this MOU certifies that he or she is authorized to execute it an beheff of the Mediating Party he or she repmears. and that such Mediating Party shall be fully bound by the terms of this MOU "lam such signature without barber act. approval, or authorization. Executed on 1200 By. "i Memorandum of Understanding bebveen and among Participating Criant Division Long -Term Water Contractors and Cross Valley Canal Contractors Regarding Mediation of Certain Aspects of Implementation of the Settlement in Natural Resources Defense Council, at al. v. Kirk Rodgers, at al. A. Preface itis Memorandum of Understanding (the "MOU') is entmed into between and among Ne undereped each of which is a Ce hall Valley Pmjed Front Division or Cross Valley Canal water service contractor ("Mediating Parties'). The Mediating Parties are parties affected by the Stipulation of Settlement dated September 13, 2006, in the matter of Natural Resources Dejewe Council, as al., Y. Kirk Rodgers, at at.., Urinal States Dinner COW Case No, CIV -S-89-1658 LICCGGH('Selemenf). Aserearoofthe Settlement the Mediafmg Parti" expert to suffer actual orpmented warm supply losses. The Mediating Parties believe than is in the beat Owners: of"ch to engage in a voluntary, confidential, privileged, and non -coercive process in which arch may work with the others to agree Open methods and procedures for equitably allocating such warm supply impacts resorting firm the Setilemmt and the Water Management Goal measures of the Settlement (including Title M of the implementing legislation) to avoid sued water supply impacts betwsn and among the Mediating Parties. B. Anreementto Mediate 1. Engagementaf Mediator For the convenience and benefit of the Mediating Parties, FWUA shah forthwith retain lames C. Waldo, of Gordon, Thome, Honeyweh, Maliuma, Pearson & Defense, LLP, Seale, Washington C'M eiamr), to not as a Mediator between and wrong the Mediating Pairs, and FWUA, in a mediation corculmot capacity, shall assist the Mediator arra may retain ath idonu coosutmts nw-cssery to facilitate cammvoicarion between and among the Mediation and the Mediabng Pont" to assist them in reachim; one or more mutually acceptable agrmaumsbe connection with the same, the Mediator and additional consultants shall be retained by wnHen agreswent betwew the notion" consbsuen and FWUA. 2. Participation in Mediation Each of the Mediating Parties shall cooperate and folly palcipme in the Mdietion in good faith, and shell extend its bear ehons towards achieving mumaily acceptable resolution of all disputed issuer that maybe subjOut to the Mediation. 3. Confidentiality and Privilege Each Of me Mediating Parties ecevowladg"that it unde nerds that the Mediator, FWUA and its staff and any additional mediation consultants retained hereunder may not use information that is acquired in confidence in the course of the Mediation outside of the Mdlatiov; must trommin impartiality towards each of the Mediating Partin; most meds reasonable efforts to keep informed about matters that maid raise questions about to Medivor's ability to conduct the Mediation impartially and most than disclose such matters to me Mediating Pastan; and must preserve the confidentiality of Mediation cummuvintlons as requned by California Evidence Code §§ 1115 through 1128, which provide, in part, that 0 communications, negotiations, or settlement discussions, by, between or among the Mediating Partin in the course of the Mellon" shell stain confidential, and that no evidence of anything said or any admission nude, or any writing prepared, disclosed, orused, for the purpose of in the coarse of, or pursuant to the Mediation, shall be admissible or subject to discovery, and mat, holmose e, none of the Mediating Parties nor the Mediator, FWUA and its gaff or additional consultants maybe compelled in any arbitration, administrative adjudication, civil action, or other nommmiml proceeding, to disclose the same. 4. Compensation of Medlemr In its engagement of the Mediator and consultants F WUA shell function he an adminishamq advancing all fen and costs charged by the Medim er and moulage order the wnttan engagement agreement between the Matsu/Consultants and PWUA. Upon written notice or invoice from FWIIA, the Mediating Partin shall comments FWUA for all same so paid to the Megaton m the proportions dmm od in Es obit A, attached hereto, and incorporated herein by this refetmce, in a combined aggregate amount not t exceed 5115,000 un ge; agreed othmavise by emmdm®t of do MOU pursuant to Pan C.2, below. it is acknowldgoi mat the proportions desmbd in Exhibit A maybe adjusted to reflect to acted Maturing Partin signatory to Itis Manhattan Agreement C. General Provisions I. Effective Date This MOU is effective December 1, 2008. 2. Minimum Participation 'Ibis MOU shall only be effective upon participation of enfifin listed in Exhibit A my results in a 75% or greeter finmdal par cip ifion 2. Madtfkntlon or Amendment Any provision of this MOU may be modified or amended, maturing modification to add portio, only by vrtidan agreement executed by all of the Mdimmg Partin. 3. Withdrawal from MOU Any of me Mediating Parses may withdrew from this MOU upon written entice to each of the other Metiating Partin, provided, however, that the obligation of a e ithdrawingparty to telegram FWUA for its proportionate slime ofine charges ofte Mediator shall continue wig, respect m all services rrndered, and costs iacurred, by the Mediator though As last day of the calmdarmonth in which such emnurnoGcc of withdrawal is provided. 4. Executlon 'tills MOU shall be subject to rhe California Uniform Electronic Tacreactlons Ad, and may be closed in one or more counterparts, each of which, when x eandel and dehverd, shell be an original, and all of which toge@er shall constitate One ivstrummt, wiW the same force and effect as though all signatures eppeard on a single document, and sipimm. m nsmitted decuonically, whether by fax, i mail, email atmchmml, or digital or photographic image, shall have far =a force and effect m an ongiani signorine. 5. Authority Each pusm executing this MOU certifies the he or she Is authorized to execute it on behalf of the Mediating Parry he or she represents, and that mch Mediating Party Awl he fay bound by the terms of this MOU upon such sigastare without further art, approval, or authonzatim. Executed on Marcb4 2009 By; N R e A Roim rez DireLwy- True L�cartment' D,b�C UHbties CFresno) anti y March 18, 2009 Coundl Accents: 3/17/05 RECEIVEM+°rAleto ae TO: MAYOR ASHLEY SWEARENGIN ter Vete: FROM: REBECCA E KLISCH, CMC 2009MAR26 Pllor&Reg1ec: City Clerk CITY Cl ERh. FRESNO CC SUBJECT: TRANSMITTAL OF COUNCIL ACTION FOR APPROVAL OR VETO At the Council meeting of 3/17109, Council took legislative action entitled Appv MOU w/tent. Term Water contractors It Cross Valley Canal Contractor:, mediation sacs for water allocations, $4,730, Item No. 11, by the following vote: Ayes Burgess, Brand, Caproglo, Dages,%long, Seeding Noes None Absent Perea Abstain None Please indicate either your formal approval or veto by completing the following sections and executing and dating your action. Please file the completed memo witM1 the Clerk's office on or before March 30, 2009. In computing the tan day period required! by Charter, the first day has been excluded and the tenth day has been included unless the IOn day is a Saturday, Sunday, or holiday, in which case it has also been excluded. Failure to file this memo wiM the Clerk's office within the required time limit shall constitute approval of the eminence, resolution or action, and it shall take effect without the Mayor's signed approval. Thank you. .................««...............«.:.««...«.......... PR VED: VETOED for the following reasons: (Written objections are required by Charter; attach additional sheets If necessary.) Ashley Sivemeri Mayor COUNCIL OVERRIDE ACTION: Ayes Noes Absent Abstain