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Home My WebLink About2000-03-28; City Council; 15673; Water Service Agreement,- ---. t f y&y 0 7 ‘JOINT MEETING 0~ THE CARLSBAD MUNICIPAL WATER DISTRICT AND CITY OF CARLSBAD -AGENDA BILL AB# GS: 673 MTG. 3/28/00 DEPT. CA TITLE. -- APPROVING THE WATER SERVICE AGREEMENT BETWEEN THE CITY OF CARLSBAD, CARLSBAD MUNICIPAL WATER DISTRICT AND THE OLIVENHAIN MUNICIPAL WATER DISTRICT DEPT. HD. CITY ATTY. G= CITY MGR. s RECOMMENDED ACTION: Adopt Resolution No.aooo d/02 approving the water service agreement between the City of Carlsbad, the Carisbad Municipal Water District and the Olivenhain Municipal Water District; and Adopt CMWD Resolution No. 1077 approving the water service agreement. ITEM EXPLANATION: Carlsbad intends to develop Phase II of the Encina Basin Water Reclamation Program which was described in Agenda Bill 15,597 and approved by the City Council and the Carlsbad Municipal Water District at its meeting of January 25, 2000. The Olivenhain Municipal Water District objected to the adoption of a mitigated negative declaration for that program and on February 25, 2000 commenced an action for a Writ of Mandate in the North County Superior Court. A settlement of that case has been reached and is recommended for approval by the City Council and District. The Agreement is on file with the City Clerk. The Agreement basically accomplishes the following: l The City and District will not serve reclaimed water in Olivenhain’s jurisdictional boundaries without a written agreement; l Olivenhain will not oppose any aspect of the Encina Basin Water Reclamation Project; l Olivenhain will dismiss its pending lawsuit in the North County Superior Court; l The City, the Carlsbad Municipal Water District and the Olivenhain Municipal Water District covenant not to harm or interfere with the ability of each entity to serve raw, reclaimed or potable water within their jurisdictional boundaries; and l Upon the request of either party, at least once every five years the parties will meet and confer in good faith to determine whether or not any changes to this arrangement should be made in the best interests of all parties. FISCAL IMPACT: Settlement of the lawsuit will remove any potential objections by the Olivenhain Municipal Water District to the District’s pending local resources program agreement between the Metropolitan Water District of Southern California, the San Diego County Water Authority and the Carlsbad Municipal Water District in the approximate amount of $11 million over the next 19 years. The fiscal impact of Phase II of the Encina Basin Water Reclamation Program itself is set forth in Agenda Bill 15,597. ENVIRONMENTAL REVIEW: The execution of this Agreement is statutorily exempt from CEQA pursuant to Public Resources Code section 21080(b)( 1). EXHIBITS: Resolution No. a~, m -/od CMWD Resolution No. 1077 Agreement on file with the City Clerk / RESOLUTION NO. 2000-102 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF 3 CARLSBAD, CALIFORNIA AUTHORIZING TH,E EXECUTION OF AN AGREEMENT WITH THE 4 OLIVENHAIN MUNICIPAL WATER DISTRICT 5 WHEREAS, the Carlsbad Municipal Water District intends to develop 6 Phase II of the Encina Basin Water Reclamation Program’as described in Agenda Bill 7 15,597 and approved by the City Council and the Carlsbad Municipal Water District at a its meeting of January 25,200O; and 9 10 WHEREAS, the City Council of the City of Carlsbad has approved a 11 Mitigated Negative Declaration for that Program; and 12 WHEREAS, on February 25, 2000, the Olivenhain Municipal Water District 8 8 mwuJ 327 !4B i 13 commenced an action for a Writ of Mandate in the North County Superior Court; and UW zlU8 sozjs 14 WHEREAS, a settlement of that case and other matters has been ri&dc 2 "09 15 a;$2 ?+!- 16 reached between the City, the Carlsbad Municipal Water District and the Olivenhain um:a6 p$ as; Municipal Water District and the Agreement is on file with the office of the City Clerk, c-3 l7 b ia NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of 19 Carlsbad, California, as follows: 20 1. That the above recitals are true and correct. 21 2. The Mayor of the City of Carlsbad approves the Agreement for Water 22 Services between the Carisbad Municipal Water District, the City of Carlsbad and the 23 ' Olivenhain Municipal Water District and the Mayor is authorized to execute it. 24 25 PASSED, APPROVED AND ADOPTED at a regular joint meeting of the 26 City Council of the City of Carlsbad and the Board of Directors of the Carlsbad : I . L c . f i E s 10 11 12 la 19 20 21 22 23 24 25 26 27 28 Municipal Water District held on the 28th dav of March. 2000 by the following roll call vote, to wit: ATTEST: AYES: Council Members Lewis, Hall, Finnila and Kulchin NOES: None ABSENT: Council Memb L&&&NE M. WOOD, Cit; Clerk (SEAL) 1 2 3 4 5 6 7 a 9 10 11 12 9 gj 8%" 7 $BW 13 a08 la 19 20 21 22 23 24 25 26 27 28 - RESOLUTION NO. 1077 A RESOLUTION OF THE BOARD OF DIRECTORS OF THE CARLSBAD MUNICIPAL WATER DISTRICT AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH THE OLIVENHAIN MUNICIPAL WATER DISTRICT WHEREAS, the Carlsbad Municipal Water District intends to develop Phase II of the Encina Basin Water Reclamation Program as described in Agenda Bill 15,597 and approved by the City Council and the Carlsbad Municipal Water District at its meeting of January 25,200O; and WHEREAS, the City Council of the City of Carlsbad has approved a Mitigated Negative Declaration for that Program; and WHEREAS, on February 25, 2000, the Olivenhain Municipal Water District commenced an action for a Writ of Mandate in the North County Superior Court; and WHEREAS, a settlement of that case and other matters has been reached between the City, the Carlsbad Municipal Water District and the Olivenhain Municipal Water District and the Agreement is on file with the office of the City Clerk, NOW, THEREFORE, BE IT RESOLVED by the Board of Directors of the Carlsbad Municipal Water D.istrict as follows: 1. That the above recitals are true and correct. 2. The President of the Board of Directors of the Carlsbad Municipal Water District approves the Agreement for Water Services between the Carlsbad Municipal Water District, the City of Carlsbad and the Olivenhain Municipal Water District and the President is authorized to execute it. PASSED, APPROVED AND ADOPTED at a regular joint meeting of the City Council of the City of Carlsbad and the Board of Directors of the Carlsbad -4 - - 1 Municipal Water District held on the 28th day of March. 2000 by the following roll call 2 vote, to wit: 3 4 AYES: Board Members Lewis, Hall, Finnila and Kulchin NOES: None 5 ABSENT: Board Member Ny 6 7 a 9 10 11 12 9 2 mwa, Yr7 13 %8gi OW% i&3, 14 :ggf 5 a;$2 15 ZWu)o nOEd,- O$a 16 P * a$$? p-3 l7 u ia ATTEST: E M. WOOD, Secretary (SEAL) 19 20 21 22 23 24 25 26 27 28 LAW OFFICES OF WESLEY W. PELTZER A PROFESStONAL CORPORATlON ATTORNEY AT LAW 751 E. RANCHEROS DRIVE, SUITE 2 SAN MARCOS, CALIFORNIA 92069 TELEPHONE (760) 744-7125 FAX 1760) 744-6259 March 24,200O Via Messenger Service Ronald R. Ball City Attorney City of Carlsbad 1200 Carlsbad Village Drive G&bad, CA 92008 Re: Carlsbad - Curlsbad Municipal Water District Agreement Our File No. 3602.001 Dear Ron: Enclosed are two original agreements. Please execute both originals and return them to me. After Dave McCollom has executed the agreements, I will forward a fully executed original to you. Thank you for your prompt attention to this matter. Sincerely, Wesley W. Peltzer WWPlca Enclosure - as noted above cc: David C. McCollom C:Wiles\Omwd\Carlsbad\BallS.Ltr RONALD R. BALL CITY ATTORNEY JANE MOBALDI ASSISTANT CITY ATTORNEY DAMIEN B. BROWER DEPUTY CITY ATTORNEY CINDIE K. McMAHON DEPUTY CITY ATTORNEY CITY OF CARLSBAD 1200 CARLSBAD VILLAGE DRIVE CARLSBAD, CALIFORNIA 92008-1989 (760) 434-2891 FAX: (760) 434-8367 AANDEE HARLIB SECRETARY TO CITY ATTORNEY ARDIS SEIDEL LEGAL SECRETARY/PARALEGAL March 29,200O Wesley W. Peltzer Law Offices of Wesley W. Peltzer Suite 2 751 East Rancheros Drive San Marcos, CA 92069 RE: OLIVENHAIN MUNICIPAL WATER DISTRICT V. CITY OF CARLSBAD. ET AL. Dear Mr. Peltzer: In accordance with your letter of March 23,200O enclosed, please find two original agreements authorized for execution by the City Council and the Board of Directors of the Carlsbad Municipal Water District and executed by the Mayor and President of the District respectively. By a copy of this letter to the City Clerk, I am asking her to retain a copy of this Agreement until you have returned one original executed by your client for our files. Should you have any questions regarding the above, please do not hesitate to contact me. Very truly yours, RONALD R. BALL City Attorney rmh 1) , RONALD R. BALL CITY ATTORNEY JANE MOBALDI ASSISTANT CITY ATTORNEY DAMIEN B. BROWER DEPUTY CITY ATTORNEY CINDIE K. McMAHON DEPUTY CITY AlTORNEY CITY OF CARLSBAD 1200 CARLSBAD VILLAGE DRIVE CARLSBAD, CALIFORNIA 92008-l 989 (760) 434-2891 FAX: (760) 434-8367 RANDEE HARLIB SECRETARY TO CITY ATTORNEY ARDIS SEIDEL LEGAL SECRETARY/PARALEGAL March 31,200O Wesley W. Peltzer Law OfFices of Wesley W. Peltzer Suite 2 751 East Rancheros Drive San Marcos, CA 92069 RE: OLIVENHAIN MUNICIPAL WATER DISTRICT V. CITY OF CARLSBAD. ET AL. Dear Mr. Peltzer: As you know, the City Council at its meeting of March 28, 2000, approved the Water Service Agreement between the Olivenhain Municipal Water District, City of Carlsbad and the Carlsbad Municipal Water District. The two executed originals are enclosed for your client’s signature. Please have your client sign the Agreements and return one fully executed document to me. Upon receipt of the returned original, I will send it to the City Clerk for her permanent files. Thank you for your prompt attentioh to this matter. V ly your-% $cs ---Qk RONALD R. BALL City Attorney rmh enclosures c: City Manager City Clerk (with attachment) April 7, 2000 TO: City Clerk FROM: City Attorney WATER SERVICE AGREEMENT BETWEEN THE OLIVENHAIN MUNICIPAL WATER DISTRICT, CITY OF CARLSBAD AND THE CARLSBAD MUNICIPAL WATER DISTRICT Attached for the City’s permanent files, is one fully executed original of the above referenced Agreement. As you will recall, the City Council approved this Agreement at its meeting of March 28, 2000, Agenda Bill No. 15,673. As you will recall, there are two original Agreements so that the Olivenhain MWD and the City could both have an original. any questions regarding this. P ANDEE HARLIB ‘Secretary to City Attorney attachment City of Carlsbad March 3 1,200O Olivenbain Municipal Water District Attn: General Manager 1966 Olivenhain Road Encinitas, CA 92024-9761 RE: WATER SERVICE AGREEMENT At the meeting of March 28,2000, the Carlsbad City Council adopted Resolution No.‘s 2000-102 & 1077, approving the above referenced agreement. Enclosed for your records is a copy of Resolution No. 2000-l 02 & 1077, and a fully executed agreement for your files. If you have questions concerning the contract, please contact Ron Ball, City Attorney, at 434-289 1. Sincerely, * . iv& d&?&c Dee Uhich Office of the Carlsbad City Clerk cc: Wesley W. Peltzer Enclosures (3) 1200 Carlsbad Village Drive * Carlsbad, CA 92008-1989 - (760) 434-2808 @ Cit[ l - 0 March 31,200O Wesley W. Peltzer Law Offices of Wesley W. Peltzer 75 1 East Rancheros Drive, Suite 2 San Marcos, CA 92069 RE: WATER SERVICE AGREEMENT At the meeting of March 28,2000, the Carlsbad City Council adopted Resolution No.‘s 2000-l 02 & 1077, approving the above referenced agreement. Enclosed for your records is a copy of Resolution No. 2000-l 02 & 1077, and a fully executed agreement for your tiles. If you have questions concerning the contract, please contact Ron Ball, City Attorney, at 434-2891. Sincerely, Dee Uhich Office of the Carlsbad City Clerk cc: Olivenhain Municipal Water District Enclosures (3) 1200 Carlsbad Village Drive * Carlsbad, CA 92008-1989 - (760) 434-2808 @ WATER SERVICE AGREEMENT This Agreement is entered into by and between the Olivenhain hiunicipal Water District, a municipal water district organized and operating pursuant to Water Code $9 71000, et seq. (hereinafter “Olivenhain”), the City of Carlsbad, a general law city (hereinafter “Carlsbad”), and the Carlsbad Municipal Water District, a municipal water district. organized and operating pursuant to Water Code $9 71’000, et seq. (hereinafter “Carlsbad Municipal”). This Agreement shall become effective as of March 16,200O. 1. Olivenhain is a municipal water district located in the northern portion of San Diego County and encompasses an area of approximately 48 square miles. Olivenhain has a population of approximately 42,000 residents and provides retail- potable water service to portions of the cities of Encinitas, Carlsbad, San Diego, Solana Beach, and San Marcos and the communities of Olivenhain, Leucadia, Ranch0 Santa Fe, Fairbanks, and 4-S Ranch. Olivenhain also provides sewer service in portions of its service territory and is in the process of providing reclaimed water in portions of its service territory. 2. Carlsbad is a general law city located in northern San Diego County which provides a variety of municipal services within its jurisdiction. 3. Carlsbad Municipal is a municipal water district that provides potable and reclaimed water within the boundaries of the City of Carlsbad and elsewhere. The City Council of the City of Carlsbad also serve as the directors of the Carisbad Municipal Water District. The Carlsbad Municipal Water District is a subsidiary district of Carlsb.ad. 4. A portion of the service territory of Olivenhain is within the boundaries of the City of Carlsbad. Recently a dispute has arisen between the parties as to whether Carlsbad or Carlsbad Municipal may serve reclaimed water within the service jurisdiction of Olivenhain. 5. In order to avoid future conflicts and disputes between the parties concerning the service of reclaimed water within the overlapping territories, Carlsbad and Carlsbad Municipal have agreed not to serve or deliver any reclaimed water to any person or entity in any part of Olivenhain’s jurisdictional boundaries without first obtaining a written agreement from Olivenhain authorizing Carlsbad or Carlsbad Municipal to serve reclaimed water within Olivenhain’s boundaries. 6. In consideration for this Agreement, Olivenhain has agreed not to oppose or contest the pending agreements between Carlsbad or Carlsbad Municipal and the San Diego County Water Authority or the Metropolitan Water District of Southern California granting any rebates for the Encina Basin Water Reclamation Project. 7. In addition, Olivenhain has agreed to dismiss its California Environmental Quality Act action filed in the North County Superior Court as Case No. GIN003490 (hereinafter the “Action”) with prejudice. 8. In March of 1972 and again in March and September of 1984, Carlsbad and Olivenhain entered into three separate written agreements governing water service within three territories being annexed to the City of Carlsbad that were and are served with water by Olivenhain known as “East Carlsbad Annexation 2.12”, the “Woolley Annexation”, and the “HP1 Reorganization” (hereinafter collectively referred to as the “Prior Agreements”). Nothing contained in this Agreement shall alter any of the rights or remedies of the parties as provided in the Prior Agreements. This Agreement shall be construed as granting additional rights and remedies to the parties. C-0-V-E-N-A-N-T-S 1. Service of Reclaimed Water in Olivenhain Territorv. As a material term of this Agreement, Carlsbad and Carlsbad Municipal jointly and severally agree not to serve, sell, or deliver any reclaimed water to any person or entity in any part of Olivenhain’s jurisdictional boundaries and not to authorize any other private or public person or entity to serve, sell, or -2- deliver any reclaimed water in any part of Olivenhain’s jurisdictional boundaries through any reclaimed water facilities owned or operated by Carlsbad ‘or Carlsbad Municipal now or at any . time in the future without first obtaining a written agreement signed by Olivenhain authorizing the service of reclaimed water within its jurisdictional boundaries. It is agreed that Olivenhain shall be the sole purveyor of all raw, potable and reclaimed water within its jurisdictional boundaries unless Olivenhain authorizes service of raw, potable or reclaimed water in its territory by a written agreement executed by Olivenhiin. . . . 2. Fan-Oppositia to Enw BU Remtlon P -ect Agreements roi . In consideration for the foregoing, Olivenhain agrees not to oppose or contest, in any form, the pending execution of agreements between Carlsbad and/or Carlsbad Municipal and the San Diego County Water Authority and/or the Metropolitan Water District of Southern California granting rebates for the Encina Basin Water Reclamation Project. . 3. WCEOA With Preiudice. In addition, promptly following execution of this Agreement by all parties, Olivenhain agrees to dismiss its pending California Environmental Quality Act action entitled “Olivenhain Municipal Water District v. City of Carlsbad, Carlsbad Municipal Water District, et al.“, Case No. GIN003490 with prejudice. Each party shall bear their own attorney’s fees and court costs. 4. Covenant of Non-Interference and Mutual CooDeration. In conjunction with this Agreement, Carlsbad and Carlsbad Municipal agree not to take any steps or actions in the future which harm or interfere with the ability of Olivenhain to serve raw, reclaimed, or potable water within its jurisdictional boundaries. Carlsbad and Carlsbad Municipal alSo agree not to prevent Olivenhain from using any water facilities, pipelines, or appurtenances within its jurisdiction to serve raw, reclaimed or potable water. Olivenhain agrees not to take any steps or actions in the future which harm or interfere with the ability of Carlsbad or Carlsbad Municipal to serve raw, reclaimed, or potable water within the service jurisdiction of the Carlsbad Municipal Water District or the City of Carlsbad provided this service is intirely qutside the service jurisdiction of the Olivenhain Municipal Water District. Olivenhain also agrees not to prevent Carlsbad or Carlsbad Municipal from using any water facilities, pipelines, or -3- appurtenances within the jurisdiction of Carlsbad or Carlsbad Municipal to serve raw, reclaimed or potable water so long as these facilities are entirely outside the boundaries of the Olivenhain service territory. 5. . Review Bv Party . Upon the request of either party, at least once every five (5) years the parties will meet and confer in good faith to review the provisions of this Agreement to determine whether any changes to the Agreement are in the best interests of all parties. If all parties determine that changes are in their best interests, the changes will be made by a written amendment to this Agreement. Nothing in this section shall obligate any of the parties to make any changes to this Agreement unless the changes are expressly approved by all parties and a written amendment is executed by all parties. 6. Prior Agreements . . Blndlng . This Agreement is intended to grant additional rights and remedies to the parties. Nothing contained in this Agreement shall be construed as altering any of the Prior Agreements which shall remain binding and enforceable as written. 7. recedent . No rights and duties of any of the parties shall arise under this Agreement unless the rebate contract between the Carlsbad Municipal Water District, San Diego County Water Authority, and the Metropolitan Water District has been executed on or before April 1,200O. 8. Miscellaneous . 8.1 Jurisdiction and Venue. This Agreement shall be construed in accordance with the laws of the State of California. In the event of any legal or equitable proceeding to interpret, enforce, or invalidate any term of this Agreement, the parties agree that venue shall lie only in the state courts in the North County Judicial District, County of San Diego, State of California. 8.2 Modification. This Agreement may not be altered in whole or in part except by a written modification approved by the City Council of Carlsbad, the Board of -4- Directors of Carlsbad Municipal Water District and the Board of Directors of the Olivenhain Municipal Water District and executed by all parties to this Agreement. 8.3 Entire Agreed. This Agreement contains all representations and the entire understanding between the parties with respect to the subject matter of this Agreement. Each of the parties warrants and represents that there are no oral representations or oral agreements not contained in this Agreement. The parties mutually declare that this .Agreement constitutes a final, complete and integrated agreement between the parties. 8.4 Binding. This Agreement shall inure to the benefit of and be binding upon the parties and their respective purchasers, successors, heirs, and assigns. 8.5 . . Repre&ons of Rmihng&mment. Each party to this Agreement warrants and.represents that all consents and actions necessary to make this a binding agreement have been taken and each of the parties have consulted with independent counsel prior to the execution of this Agreement. 8.6 No Waiver. The failure of either party to enforce any term, covenant, or condition to this Agreement on the date it is to be performed, shall not be construed as a waiver of that party’s right to enforce any term or provision of this Agreement. No waiver shall occur unless a waiver is expressly stated in writing and signed by the person for the party having the authority to expressly waive the benefit or provision, in writing. No oral waiver shall be effective against either party or their successors or assigns. 8.7 Notices. All letters, statements, or notices required by this Agreement or by law shall be deemed effective upon receipt when personally served or transmitted b,y facsimile machine or two (2) days after mailing in the United States Mail to the following addresses: To: “Olivenhain” Olivenhain Municipal Water District Attention: General Manager 1966 Olivenhain Road Encinitas, CA 92024-976 1 Telephone: (760) 753-6466 Facsimile: (760) 753-5640 -5- With A Copy To: Wesley W. Peltzer Law Offices of Wesley W. Peltzer 751 East Rancheros Drive, Suite 2 San Marcos, CA 92069 Telephone: (760) 744-7 125 Facsimile: (760) 744-8259 To: “Carlsbad” or “Carlsbad Municipal” Attention: City Manager City of Carlsbad 1200 Carlsbad Village Drive &&bad, CA 92008-l 989 Telephone: (760) 434-282 1 Facsimile: (760) 720-946 1 With A Copy To: Ronald R. Ball City Attorney City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008- 1989 Telephone: (760) 434-289 1 Facsimile: (760) 434-8367 8.8 . . . Counterparts and Facsnml e Smnatures. This Agreement may be executed in counterparts and each counterpart signature shall be treated as part of the same agreement. Facsimile signatures shall be allowed and shall be treated as original signatures for all purposes. Dated: March 03 ,200O OLIVENHAIN MUNICIPAL WATER DISTRICT, David C. McCollom, General Manager -6- I . ‘, , . . CITY OF CARTSBAD By: Its: MAYOR CARLSBAD MUNICIPAL WATER DISTRICT By: Its: PRESIDENT C:\Files\Omwd\Carlsbad\Reclaim.Agr [March 23,2000] -7-