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HomeMy WebLinkAbout2000-05-02; City Council; 15719; Settlement Case GIN003490 (CEQA) OMWDJOINT MEETING OF CARLSBAD MUNICIPAL WATER DlSTklCT AND CITY- OF CARLSBAD -AGENDA BILL AB# j&T’1 719 MTG. 5/2/00 DEPT. CA TITLE- REPORTING OUT THE TERMS AND CONDITIONS OF THESETTLEMENT AS REQUIRED BY THE BROWN ACT IN OLIVENHAIM MUNICIPAL WATER DISTRICT V. CITY OF CARLSBAD, ET AL. CASE NO. GIN003490 (CEQA) DEPT. HD. CITY ATTY. CITY MGRa RECOMMENDED ACTION: There is no action that the Council needs to take. ITEM EXPLANATION: L The parties have settled this lawsuit and this item satisfies the Brown Act requirement to report the fact of a settlement of litigation approved by the City and District on March 28, 2000 in joint session. FISCAL IMPACT: Each party to bear its own costs. EXHIBITS: Water Service Agreement WATER SERVICE AGREEMENT This Agreement is entered into by and between the Olivenhain Iknicipal Water District, a municipal water district organ&d and operating pursuant to Water Code 45 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 $4 71’000, et seq. (bereinafkr “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 Carlsbad Municipal Water District. The Carlsbad Municipal Water District is a subsidiary district of Carlshad. 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 Oliver&k’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, Olivenbain has agreed to dismiss its California Environmental Quality Act action filed in the North County Superior Court as Case No. GINO03490 (hereinafter the “Action”) with prejudice. 8. In March of 1972 and again in March and September of 1984, Carlsbad and Olivenbain 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-()-V&N-&N-T-S 1. 3. i 0 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- 3 deliver any reclaimed water in any part of Olivenbain’s jurisdictional boundaries through any reclaimed water facilities owned or operated by Carlsbad or Carlsbad Municipal now or at any . time in the fiture without first obtaining a written agreement signed by Olive&tin 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 tenitory by a writtexi agreement executed by Olivenh&n. 2. . . . . Non-O-on to En- B~SII R-on ProJect memen@ . 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. . . . . Dismissal CEOA With &gu&g . 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. GINO03490 with prejudice. ..Each party shall bear their own attorney’s fees and court costs. 4. Covenant of Non-Interference and Mutual CooDeratiop. 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 potabie 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 entirely putside 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 By Pa- . 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 determi?e that changes are in their best interests, the changes will be made by a written amendment to this Agreement. Nothing in thii 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 v . 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. . . Coodltron Precedent . 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. Miscellaneow . 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 w. 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 v. This Agreement shall inure to the benefit of and be binding upon the parties and their respective purchasers, successors, heirs, and assigns. 8.5 . . es- of BrnQng. 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 PIJO 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 tight 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 by facsimile machine or two (2) days aAer mailing in the United States Mail to the following addresses: To: “Olivenhain” Ohvenhain Municipal Water District Attention: General Manager 1966 Olivenhain Road Encinitas, CA 92024-9761 Telephone: (760) 753-6466 Facsimile: (760) 753-5640 -5 With A Copy To: Wesley W. Peltzer Law Offices of Wesley W. Mtzer 751 East Rancheros Drive, Suite 2 San Marcos, CA 92069 Telephone: (760) 744-7125 Facsimile: (760) 744-8259 To: “Carlsbad” or “Carisbad Municipal” Attention: City Manager City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008-1989 Telephone: (760) 434-2821 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) 4342891 Facsimile: (760) 434-8367 8.8 . . . Countqparts md Facsmule wtures . 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 0 ,200 0LlVENKAl-N MUNICIPAL WATER DISTRICX David C. McCollom, General Manager -6- I . . , CITY OF CARLSBAD By: Its: MAYOR CARLSBAD MUNICIPAL WATER DISTRICT Its: PRESIDENT C:\Fils\Omwd\Culsbad\Rcclaim.Agr [March 23.2000] -7- ATTQRNEY OR PARTY WtTHOUT ARORNEY (Name 8116 .‘,’ &)I TELEPHONE NO.: Wesley W. Peltzer SB#072219 (760) 744-7125 751 East Rancheros Drive, Suite 2 San Marcos AlTORNEY FOR (/&me): CA 92069 Insert name of court and name of judicial diii and kanch oouft, S any: SUPERIOR COURT OF CALIFORNIA, SAN DIEGO COUNTY . PLAINTIFF/PETITIONER: OLIVENHAIN MUNICIPAL WATER DISTRICT DEFENDANT/RESPONDENT CITY OF CARLSBAD, ET AL. REQUEST FOR DISMISSAL 0 Personal injury, Property Damage, or Wrongful Death a Motor Vehicle 0 Other u Family Law 0 Eminent Domain m Other (specify): PETITION FOR WRIT OF MANDATE . . - .,.._ :::_+ FOR COURT USE ONLY CASE NUMBER: GIN 003490 I - A conformed copy will not be returned by the clerk unless a method of return is provided with the document. - 1 1. TO THE CLERK: Please dismiss this action as follows: a. (1) m With prejudice (2) 0 Without prejudice b. (1) 0 Complaint (2) n Petition (3) 0 Cross-complaint filed by (name): (4) 0 Cross-complaint filed by (name): (5) m Entire action of all patties and all causes of action (6) 0 Other (special):* Date:APRIL 11, 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (TYPE OR PRINT NAME OF q ATTORNEY q PARTY WllHOUT ATTORNEY) * If dismissal requested is of specified parties only, of specified causes of action only, or of specified cross-complaints only, so state and identify the parties, causes of action, or cross-complaints to be dismissed. on (date): on (date): WESLEY W. PELTZER ) ~~~ l&f 17&- F Attorney or party witho m Plaintiff/Petitioner 0 DefendanVRespondent 0 Cross-complainant 2. TO THE CLERK: Consent to the above dismissal is hereby given.*’ Date: b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (TYPE OR PRINT NAME OF 0 ATTORNEY /--J PARTY WtTHOlJT AiTORNEY) ** If a cross-complaint-or Response (Family Law) seeking affirmative (SIGNATURE) Attorney or party without attorney for: relief-is on file, the attorney for crosscomplainant (respondent) must sign this consent if required by Code of Civil Procedure section 581(i) or (i). I Plaintiff/Petitioner 0 DefendanVRespondent a Cross-complainant (To be completed by clerk) 3. 0 Dismissal entered as requested on (date): 4. m Dismissal entered on (date): as to only (name): 5. 0 Dismissal not entered as requested for the following reasons (specify): 6. 0 a. Attorney or party without attorney notified on (date): b. Attorney or party without attorney not notified. Filing party faileb to provide 0 a copy to conform 0 means to retumconformed copy Date: Form Adopted for Mandalory Use Judicial Couml of Califorma 962(a)(5) (Rev. January 1, 19971 Clerk, by , Deputy -- REQUEST FOR DISMISSAL GZEB Code of Ciwl Procedure. g 581 et seq. Cal. Rules of Cowl. rules 383. 1233