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
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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