HomeMy WebLinkAboutSan Luis Water District Transfer and Exchange of Water for Water Yrs 20132015/L
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AGREEMENT FOR TRANSFEII AND EXC}IANGB OF WÀTER
FOR WATER YEARS 2()I3 - 2015
Tlús Agreernent for Tlansfer and Exchalìge of Water for Water Yeat's 2013 -2015
("Agreeruent") is rnade and effective as of Jurle 18, 2013 by and betrveen (i) the City of Flesno, a
California ¡Ìlunicipal corpolation ("City") and (ii) the San Luis Watel District, a Califomia rvater
district ("SLWD") rvitlr refelerrce to the follorving facts:
A. Cit1, ¡ur the rìght to receive Class I rryater from the Friant Division of the Centlal Valley
Project ("CVP") under Contract No. 14-06-200-8901D ("CVP Corttract Watet") with the United
States Bureau of Reclamation ("Reclamation").
B. On or about Septembel 13, 2006,a Stipulation of Settlement $'as entered in the litigation
entitled Natural Resoulces Defense Council, et al. r'. Kirk Rodgers, et al., United States District
Court, Eastem District of California, No, CIV. S-88-1658-LKK/GGH ("SJ Rivel Setllenrent").
C, In Malch 2009, the San Joaquin River Restoration Settlenrent Act (Public Law l l l-l I
(H.R. 146); "SJ River Restoration Act") u,as enacted as required by and as a meclranisrrr to
irnplement certain portions of the S.T River Settlement.
D. Together, the SJ River Settlement and the SJ River Restoration Act provide for certain
environlnelltal restoration activities along the nrain stenr of the San Joaquirì River, refened to as
the "San Joaquin River Restoration Prograur" or the "Restoratiou ProgLant". Put'suallt to the
Restoration Prograrn, thc Urúted States Bureau of Reclamation ("Rcclaruation") periodically
releases a portion of the Friant Division CVP u,ater supplies, including those associated rvith the
City CVP Contract Water, 1o supplenrent San Joaquin River flow ("Restolatiort Flows").
E. Also pursuant to the SJ River Settlement and the SJ Rivel Restoration Act, a portion of
the Restoration Florvs are rccaptured by Reclauration and made available to the Friaut Di'i,ision
contractors, irrcluding the City, in the San Luis Reservoir (the "Recaptured Water").
F. Recaptured Water is most easily accessible at the San Luis Reseloir. SLWD is
geographically best located to access and obtain deliverl,of Recaptured Water ftom San Luis
Reseloir.
G. The quantity of Recaptured Watel available highly variable and based ou annual rainfall,
snow pack, anticipated runoff and the magnitude of the Restoratio¡¡ Florvs and monthly
opelational adjustments. The City arrticipates that variable aurounts of Recaptured Water rvill be
available tluough Water Years 2013 - 2015 (March l, 2013 - February 28, 2016).
H. Tlrrough this Agreernent, the City and SLWD interrd to coordinate their use of a portion
of the Recaptured Water l-or in'igation of penlanent crops rvithin SLWD sen,ice area ancl to
o¡rtirnize the use and availability of t'egional u'ater supplies.
THEREFORE, tlte parties agree as follou's:
Water lixchalge Âgreenlent CITY- SL\\ID: W]' l3-l 5
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L Water Transfers and Exchanges, The City shall make available to SLWD the
elrtil'e ar¡ount of Recaptured Water available to the Ciq'duling the ternt of tlús Agreetnent,
except for': a) u¡r to 1,500 AF iu Water Year 2013, and b) up to I,000 AF in each of Water Years
2014 and2015. The City and SLWD shall coordinate tlteir usc of the Recaptured Water to
¡raxinúze its use and undeltake all leasonable effofis nccessal'y to eflecfuate the lrausfers of
Recaptured Water fi'om the City to SLWD as provided in this Agt'eeurent.
2. ater.
a. For Water Year 2013, the City shall take all reasonabll'necessary steps to
transfer to SLWD and SLWD shall take all reasouable steps to take delit,cly altd nake
rcasonable and beneficial use all Recaptuled Watel urade available to City by Reclauration in the
San Luis Resen'oiL, provided that City reserves up to 1,500 AF for other ¡rutposes.
Reclamation's luost recent forecast allocates to the City up to 5,052 AF of Recaptured Watel in
Water Year 2013 plus 130 AF fi'orn Water Year' 2012for a total of 5,182 AF available irr the San
Luis Resen,oir.
b. O¡ or before June I of Water Years 2014 and 2015, the City shall provide
wl.itten notice to SLÌWD of the estimated quantity of Recaptuled Watel available for tt'ansfet' to
SLV/D for the applicable'Water Year'. SLWD shall be obligated to pay for arrd accept delivery
of the full amount of Recaptured Water wlúch Reclatuation lnakes available to City in San Luis
Reservoir
3. Paytueut.
a. For Water Year 2013, SLWD shall make payment to City of $1,067,780
(one million, sixty sevelt thousand, seven huudred eiglrty dollaLs; $290 per AF tinres 3,682 AF)
within 30 days of the date of Reclamation authorizes the transfer and delivery of the Recaptured
Water available to SLWD for'Water Year 2013.
b. For Water Years 2014 and 2015, SLWD shall make paytnent to City for
fift1, percent (50%) of the Recaptured Water made available to SLWD for that Watel Year, The
balance of the arnount owed to the City for'Water Years 2014 and 2015 shall be paid on or
before February 28,2015 and Februat'y 28,2016.
c. The magnitude of each paynrent shall be calculated by multiplyiltg the
applicable price times the applicable AF transfenecl to SLWD. The applicable price shall be
based on Reclarnation's final determination of the percentage allocation of agricultural watel
nade available to South of Delta CVP conlractors fol the applicable water year', with the
associated price per AF as set forlh in the following table:
Water Exchange Âgrccnìcnt CIT\'- SLWD: \\'\' l3- I 5
03 73 24\0024\ l 0,1 6092'l .t
2
South of Delta CVP
Agricultural Contractor
Allocation (Final
Percentage Set by
Applicable Price pel AF
for Recaptured Water
($/ar¡
Reclamation
0 425
400
10
t5
20
25
30
35
375
325
290
260
235
215
40 190
45 165
50 145
55 and above 130
d. The City sliall rnake timely payrnent to Reclamation for any arrd all
charges for the Recaptured rWater to the point of that water becoming available to SLWD in San
Luis Reservoir.
e. In addition to the payurents provided in sections 3.a tluough 3.c, above,
SLWD shall be resporrsible for any and all costs associated u'ith tìre delivery and use of the
Recaptured Water fi'om San Luis Resen,oir.
f. On or about Aplil 15 of each year during the tenn of this Agreernent, the
City and SLWD shall reconcile the amounts paid and owed, based on the actual quantity of
Recaptured Water transferued to SLV/D each Water Year and the applicable price. Any amounts
owed shall be dt¡e and payable within 30 days of each annual reconciliation.
4. Rescheduling. Upon request of SLWD and full payment having been made to tlre
City b¡, SLWD, the City sltall request that Reclanation reschedule any Recaptured Vy'ater
purchased by SLWD hereuncler rentaining in San Luis Reseloil at the end of the Water Year.
SLWD shall be responsible for all Reclamatiort ol'other charges for rescheduling the Recaptuled
Water and shall bear any and all rvater losses that might occur.
5. Transfer Instluctions. To accornplish the water transfers provicled in this
Agreement, for each Water Year the City and SLWD shall anange to corrrplete a Notice of
Tt'ansfer in a fotrn substantially siurilar to Attachnrent A. The transfer form for Watel Year 2013
is providecl as Attachnrent A.
6. Counterpaús, 'fhis Agreetnent rrtay be executed irt counterparts by thc palties.
Iìacsimile signatures shall be binding.
\\¡aler Exchange Âgrccnrcrtl CITY- Sl-\\rD: WY l3'15
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7. Elltile Aqreement. This Agreenrent constitutes the erttire agleernent betu'een thc
palties u'ith tespect to the subject nlatter heleof, All prior agreelìtellts u'ith respect to that subject
rnatter, u4rether verbal or rvlitten, ale hereby superseded in their entiret¡, by tlús Agreenrent and
are of no furthel force or effect. Arnendments to this Agreettrent shall be effective only if irt
u,riting, and then only vi4ren signed by the autholized replesentatives of tlte respective parties.
8. Tirne of the Essence. Time is of the essence and the peforurance by the parties of
this Agreentertt.
9. Spesific Perfonnance, The parties acknoq'ledge that the rvater to be transferred
and exchanged under this Agreement is u¡ìique, and that the failure of the City oL SLWD to
perfolrn under this Agreemeut may uot be reaclill, contpensable in ¡nonetary datnages.
Therefole, in addition to any other remedies available at lau' or in equity, in tlte eveut of a breach
or tlrreatened breach of this Agleement, the City and SLWD shall each be entitled to specific
performance of this Agreeruent.
10. Severability. If an¡, provision of tlús Agreement is detemrined by a court of
conrpetent jurisdiction to be void or unenforceable, and that plovision cannot be leformed to be
enfolceable consistent rvith the overall intent of this Agteentent, tlte entire Agleetueut shall be
void and unenforceable.
11. Ambieuities. Tlús Agreenrent shall be interpreted as if it had been jointly drafted
by both parties. Therefore, the normal rule of construction that arnbiguities are constnted agairtst
the draÍìer is heleby rvaived.
12. Notices. All iiotices urrder this Agreenlent shall be effective (i) when pelsonall¡'
deliveled, (ii) rvhen sent by facsimile on a business da1' bet'rveen the ltours of I a.m. and 5 p.m.
(rvithlvritten confirnration of tlansmission), at the nuurbers set forth belorv, provided that a copy
is tnailed as iltdicated below, or (iii) tluee bnsiness days after deposit in the United States urail,
registered or ceÍified, postage ftllly prepaid and addressed to the respective patties as follows:
To Cit1,;
To FID:
N4artin A. Querin, PE, Assistant Director of Public Utilities
City of Fresno, Depar-tnent of Public Utilities
2600 Fresno Stleet
Fresno, CA 93721
Facsirnilc No.: (559) 488-1024
Telephone No.: (559) 621-8600
Martin Mclnt¡'re, General Manager
San Luis \\/ater District
1015 6tl' Streel
Los Banos, CA 93635
Facsinrile No.: (209)
Teleplrone No.: (209) 826-4043
ol' such other address ol facsimile nt¡nrbel as the parties nray ftonr tinre to tinrc designate in
rvt'iting. As a nlatter of convenience, horlcver, cournunications betu'een the City and SL\\¡D
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\\¡ater DxchangeAgreement CITY- SL\\ID; \\'Y l3-¡5
037324\0024\10460927 I
shall, to lhe extent feasible, be conducted olalll, by telcphone or in persor), and/or tluough lhe
patties' r'es¡rective counsel, lvilh sucll conlnrt¡nications to be confinned and rnade effective in
r.vriting as set forth above plovideci no such oral notice or conrnrunication shall be effectivc
unless so confinned in u,riting.
16. Further Action. The pailies agree to perfomr all furlher acts, and to execute,
acknou4edge, and deliver any documelits that may be reasonabl¡,necessal'y, applopliate or
desirable to can'y out the pulposcs of tlús Agreerrrent.
17. No Third Part.v Beneficiaries, This Agrcement does not create, and shall not be
coustrued to create, au¡, t'ights enforceable by any person, partnelshþ, corpolation, joint venture,
limited liability compalty ol other form of orgarrizalion or association of any kind that is rrot a
party to this Agleement.
18. Envilomnental Compliarrce. The obligations of the parties under tlús Agreenrent
ale ex¡rressll,couditioned upon: (i) compliance with the Califomia Enviromncntal Quality Act
("CEQA") and all other applicable envilorunental larvs rvith respect to the actions contemplated
by this Agreement, and (ii) the receipt of all necessary goveuuuental and third parly corrsents and
approvals for those actions. Each part5' shall pronrptly prepare all ap¡rLopriate envilolunental
documents, if any ale required, for it to undetlake the actions contemplated in this Agreement,
The parties shall coopelate to diligentll, conrplete all enviromnental revierv lequired in order to
inrplement this Agreement, and shall use reasonable efforts to reduce any ovedap in analyzing,
mitigating, or stud5'ing e¡x,ironnlental impacts assocìated rvith the actions proposed in this
Agreenretrt. Notu,ithstanding any other provision of this Agreement, no action shall be taken to
effect the actions contemplated by this Agreement, and no otlrer action shall be taken that
corunits auy ntaterial resot¡rces of anl'part)', until all requiled environnental revierv is
conipleted and all parties have independently nrade all findings required by CEQA and other
applicable e¡rviromrental larvs. If, upon cornpletion of such envirorunental review, a party finds
olre ol'more significatrt, unrnitigated envirorunental inrpacts resulting flom the actions
contertrplated by tlús Agreement and cannot nlake a furding that the benefits of the proposed
projcct outrveigh the irnpact ol inrpacts, or that the impacts can be mitigated to a level belorv
significance, then this Agreement shall termìrrate rvithout further obligation or liability of any
party. Neither the execution of this Agreernent, nor auy prelinrinaly steps taken to impleutent
this Agreemeut, sltall be takeu into acconnt in deternrining whether mitigating or avoiding any
significant inrpact is feasible.
[co n f i nued on Jbl I ow in g pu ge/
\\/aler lìscharrge Âgreenrent CITY- SLWD: NY I 3- l5
037324\0024\10460927. I
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19. Attomeys' Fees. In the event of any action between the parties seeking
enforcement or interpretation of any of the tenns and conditions of this Agreeureut, the
pret'ailing parfy in sucb action shall be arvarded its reasonable costs aud expenses, including, but
not limited to, taxable costs and reasonable attorne¡'s' fees.
IN V/ITNESS WIIEREOF, tlie parties have executed this Agreement as of the date first above
q'ritten.
CITY OF FRESNO,
a Califouria municipal corporation
SAN LUIS WATER DISTRICT
a California rvater distlict
B)': By:
Patrick N, 'Wiemiller
Dilectol of Public Utilities
ATTEST:
WONNE SPENCE, CMC
City Clelk, Citl' s¡Pt'.ttto
APPROVED AS TO FORM:
DOUGLAS
City A
By:
PrintNdrfie: Robert J. Sapersteiu
Title: Special Counsel to the City Attorney
\\tater Exchange Agreerne nl CITY- Sl-\\rl-): NY l3-l 5
037324\0024\r 04ó0927. I
Martin Mclntyre
General Manager
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ATTACHMENT A
NOTICE OF WATER TRANSFER 2OI3 WATER YEAR
TIIIS NOTICE OF Ì/ATER 1'RANSFER 2013 'WA'IER YEAR ("Notice") is provided
as of June 18, 2013, by the CITY OF FRESNO, hereinafter refetred to as "City", and SAN LUIS
V/ATER DISTRICT, hereinafter referred to as "SLWD" with leference to the follou'ing facts:
A. The United States Bureau of Reclamation "(Reclamation") has most recently forecast the
Citl' u'¡11 be allocated up to 5,052 AF Recaptured Water in Water Year'2013 plus 130 AF from
Watel Year 2012 for a total of 5,182 AI available in the San Luis Reservoir as a result of the
implernentation of the San Joaquin River restoration activities.
B. The City and SLWD intend to opliurize the effrcient use of available watel l'esoulces.
TFIEREFORE, subject to Reclamation's approval, the Parties irttend to effectuate the
tbllorving transfer of Centlal Valley Project Recaphrred Water:
l. To Sau Luis 'Water District:
a. The City does hereb¡' transfer to SLWD all of the Recaptured Watel made
available to the City by Reclanration, less up to 1,500 AF, for use by SLWD
pursuant to the tentative schedule attached hereto as Exltibit 1.
b. The City shall pay all Reclamation rates and charges associated rvith Recaptured
Vy'ater reaching the San Luis Reservoir'.
c. SLWD shall be responsible for all rates and charges for storage, reschedulitrg ancl
delivery of the Recaptured Water fi'om San Luis Reseryoir.
2. SLWD shall enst¡re that the transferred Recaptured Water is put to reasonable and
beneficial nse in accordance rvith State and Federal law, including Reclamation law.
IN WITNESS THEREOF, the parties, tluough their duly authorized representatives, lìavc
executed this Notice as of the day and year first above rvritten.
CITY OF'FRESNO
a California n'runicipal corporation
SAN LUIS \ryATDR DISTRICT
a California inigation district
By:
Patrick N. Wienriller
Dircctor of Public Utilities
\\/a{er lìxchangc Agrccnìcnl CIT\'- S f ,\\¡t): NY Il- l .5
037324\0024\r 0460927. I
Martin Mclntyre
General Manager
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EXIIIBIT 1
Schedule to SLWD
Water Exchan gc ÂBreer¡ent C l'l'Y- SL\VD: \\tY I 3- I 5
037324\0024\ I 0460927. I
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