1998-0301_SAN JUAN BASIN AUTHORITY_Agreement Amd (2) SAN JUAN BASIN AUTHORITY - CAPISTRANO VALLEY
WATER DISTRICT AND CITY OF SAN JUAN CAPISTRANO
AMENDMENT TO AGREEMENT
This Amendment to Agreement is made this 1 st day of March 1998, by and among the
San Juan Basin Authority (the "Authority"), the Capistrano Valley Water District (the
"District"), and the City of San Juan Capistrano (the "City").
RECITALS
A. On the 21 st day of November, 1995, the Authority, the District and the
City entered Into an agreement (the "1995 Agreement") to clarify the parties' agreement
with respect to the extraction of water from the Basin for the District and City relative to
the Authority's extraction of water from the Basin for its water development project. That
project is the subject of the Authority's application to appropriate to the State Water
Resources Control Board (Application No. 30123.) The Authority is in the process of
entering into protest settlement agreements and other agreements in order to obtain the
SWRCB's approval of its application.
B. In furtherance of monitoring and, to the extent feasible, management of
Basin's subterranean water supply for beneficial uses, the Authority recently established
Project Committee Number 10. Among the functions of that Project Committee is Basin
monitoring and determination of Available Safe Yield. The Authority may create
additional committees and/or amend their functions as it deems appropriate.
C. At the time the 1995 Agreement was entered into, Project Committee
Number 10 was neither envisioned nor did it exist. The provisions of the 1995
Agreement limiting its applicability to Project Committee No. 4 are no longer relevant or
appropriate. Furthermore, the parties want to clarify that the Authority's project may
SD
Amendment to 1995 Agreement
Page 2
change from time to time, and that the year to be used will be the water year from
October 1 to September 30.
The Authority, the District, and the City now desire to amend the 1995
Agreement as follows.
AGREEMENT
1 . The agreement made November 21 st, 1995 by and among the San Juan
Basin Authority, the Capistrano Valley Water District, and the City of San Juan Capistrano
is hereby amended as follows:
A. Recital E shall be deleted entirely and replaced by the following new Recital
E:
E. Pursuant to the Projects Agreement, the Members established several
Project Committees to study and implement a water management and use program
within the San Juan Creek Basin and tributaries (the "Basin"). The Authority made
a study of the feasibility of extracting water from the Basin, treating that water to
improve Its quality as appropriate, and supplying the resulting water to the
Members and other water users (the "San Juan Basin Ground Water Management
and Facility Plan", as revised). The Authority intends to proceed with the Project
based upon this original study and subsequent hydrologic, environmental and other
work. The "Project" shall refer to this project as it may change from time to time.
Amendment to 1995 Agreement
Page 3
B. The last sentence only of Section 2 shall be deleted and replaced with the
following sentence:
For purposes of this Agreement, "extraction" or "extract" shall include
diversion of surface or subsurface water from the Basin by any method; and
"year" shall mean water year (October 1 to September 30).
C. Section 16 shall be deleted entirely and replaced with the following new
Section 16:
Binding Effect. This Agreement shall be binding upon full execution by or
on behalf of all parties hereto.
2. Except as specifically amended herein, the 1995 Agreement and all its terms
and conditions shall remain in full force and effect.
3. Each representative affixing his or her signature below thereby warrants and
represents that he or she has the full legal authority to bind his or her respective party to
all of the terms, conditions and provisions of this Agreement, and that no further
approvals or consents are necessary from his or her respective party in connection
therewith.
4. This Amendment to Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which when taken together shall constitute
one and the same instrument.
Amendment to 1995 Agreement
Page 4
IN WITNESS WHEREOF, the Authority has caused this Amendment to Agreement
to be executed by the Chairman of the Board of Directors and attested by the Secretary
thereof, the District has caused this Amendment to Agreement to be executed by its
President of the Board of Directors, and attested to by its Secretary, and the City has
caused this Amendment to Agreement to be executed by its Mayor and Chair of the City
Council, and attested to by its Clerk, effective the date first written above.
"Authority"
SAN JUAN BASIN AUTHORITY
Attest:
By: c�aL
Secreta Name• John Schatz
Tide: President, oard of Directors
San Juan Basin Authority
27500 La Paz Road
Laguna Niguel, CA. 92656-3489
Phone: (714) 448-4055
Facsimile: (714) 831-5651
Amendment to 1995 Agreement
Page 5
"District"
CAPISTRANO VALLEY WATER DISTRICT
Attest: _
E
M%w 1e c of the Board ones
Tide: President, Board of Directors
Capistrano Valley Water District
32450 Paseo Adelanto
San Juan Capistrano, CA 92675
Phone: (714) 493-1515
Facsimile: (714) 493-3955
APPROVED BY:
Michele A. Staples
Amendment to 1995 Agreement
Page 6
..Cit,»
CITY OF SAN JUAN CAPISTRANO
Attest:
1vJB1�r— Byc''
S&xft)tUqr City Clerk Name: _Gil 1,6h—
es-Tide: Mayor
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Phone: (714) 493-1515
Facsimile: (714) 493-3955
APPROVED BY-
John Sh wlbAttorney
c:nva:1:5 5:030698:cvwd:amendag.036
COPY
SAN JUAN BASIN AUTHORITY - CAPISTRANO VALLEY WATER DISTRICT
AND CITY OF SAN JUAN CAPISTRANO AGREEMENT
This Agreement is made this 21st day of November, 1995, by and among the San Juan Basin
Authority (the "Authority") , the Capistrano Valley Water District (the "District"), and the
City of San Juan Capistrano (the "City").
RECITALS
A. On November 22, 1971, the Authority was formed pursuant to Article I,
Chapter 5, Division 7, Title 1 of Government Code of the State of California (Government
Code 6500 et seq.) and established for the purpose of jointly funding certain water system
facilities and water conservation projects necessary to conserve and make water resources
available to the areas within the San Juan Creek Watershed serviced by the members of the
Authority.
B. The present members of the Authority are Capistrano Valley Water District,
Moulton Niguel Water District, Santa Margarita Water District and the Trabuco Canyon
Water District (hereinafter sometimes referred to as the "Members"). The Members
excluding Capistrano Valley Water District are hereinafter sometimes referred to as the "Other
Members."
C. Capistrano Valley Water District, a member of the Authority, serves water to
the City of San Juan Capistrano and has been appointed by the City to act on its behalf in
matters relating to water supply. The Board of Directors of the District is comprised
exclusively of members of the City Council.
SJBA/CVWD/City Agreement Page 2
D. On February 5, 1991, the Authority and the Members entered into the "San
Juan Basin Authority Projects Agreement" (the "Projects Agreement") to set forth a process
by which the Authority may select and complete those projects and water system facilities
necessary to carry out the purpose of the Authority.
E. Pursuant to the Projects Agreement, the Members established several Project
Committees to study and implement a water management and use program within the San Juan
Creek Basin and tributaries (the "Basin"). The Authority made a study of the feasibility of
extracting water from the Basin, treating that water to improve its quality as appropriate, and
supplying the resulting water to the Members and other water users (the "San Juan Basin
Ground Water Management and Facility Plan", as revised). The Authority intends to proceed
with the Project based upon this study and subsequent hydrologic, environmental and other
work (the "Project"). The Members of the Authority participating in the Project are those
which are members of Project Committee No. 4. The parties to this Agreement intend that
only those Members of the Authority which are members of Project Committee No. 4 shall be
bound by this Agreement.
F. To assure itself of a dependable water supply for the Project, the Authority has
taken several steps, including the filing of an application dated April 3, 1992 (Application
No. 30123) to appropriate water from the Basin with the State Water Resources Control
Board, Division of Water Rights (hereinafter the "State Board").
G. The District filed a protest to the Authority's application based upon its
contention that the City has pueblo rights, which rights the District exercises and administers
on behalf of the City. On March 28, 1995, the State Board, acting by and through the Chief
SMAX WD/City Agreement Page 3
of the Division of Water Rights, did not accept that protest. The District subsequently filed a
request for reconsideration of this decision. On June 22, 1995, the State Board granted the
District's request solely for purposes of allowing time to reach this and other agreements.
H. The Projects Agreement sets forth each Member's entitlement to existing water
from the Basin relative to the Project. The District's entitlement as described in Attachment
No. 5 of the Projects Agreement is 2,900 acre feet per year of water.
I. The District extracts potable and nonpotable water for municipal and
agricultural purposes from the first six wells listed on Exhibit B. The District serves the City
as well as other users within the District. The City's water service is provided entirely by the
District, except for the City's extraction of water for agricultural/greenbelt irrigation from the
last three wells and well locations listed on Exhibit B and graphically shown on Exhibit C
hereto.
J. The parties acknowledge that the quantity of water in the Basin at any given
time is subject to pumping by parties other than the parties hereto, and the quantity and quality
of water flowing in and into the Basin may be diminished by drought conditions, others'
pumping, and other events beyond the control of the parties hereto.
K. The purpose of this Agreement is to clarify the parties' agreement with respect
to the extraction of water from the Basin for the District and City relative to the Authority's
extraction of water from the Basin for the Project.
SJBA/CVWD/City Agreement Page 4
NOW, THEREFORE, the parties agree as follows:
Section 1. District-City Relationship.
The City and District have chosen to have the District act on behalf of the City in certain
matters relating to water supply, including the operation of certain of the wells, delivery of
water supply and other respects. The District and City each claim separate entitlements to
water and use separate facilities, notwithstanding the District's role as agent for the City in
certain respects. The District and City are solely responsible for the division of facility use
and water supply as between them, and for all aspects and ramifications of their relationship,
and agree to indemnify and defend the Authority for any disputes or other issues to the extent
caused by or arising as a result of the relationship between the City and District, including but
not limited to the allocation of water and facilities. Both City and District are directly
responsible to Authority for compliance with their obligations pursuant to this Agreement.
Where District alone is referenced herein, District shall act on behalf of and bind the City.
District and City represent that District is duly authorized to do so.
Section 2. District/City Annual Entitlement.
The Authority recognizes and agrees that it will not challenge the District's extraction from the
Basin of up to 2,900 acre feet of water each year and the City's extraction from the Basin of
up to 425 acre feet of water each year (hereafter collectively "Annual Entitlement" or
separately "Annual Entitlement Allocation"). Of the District's 2900 acre feet, 1500 acre feet
is considered potable water from the existing District wells known as Rosenbaum #1,
Rosenbaum #2, Hollywood #2A, and 1400 acre feet is considered non-potable water from
existing District wells known as Well No 4, ("CVWD #4"), Well No. 5 ("CVWD # 5") and
SJBA/CVWD/City Agreement Page 5
Mission Street Well. Of the City's 425 acre feet, 150 acre feet are from the Kinoshita SJBA
#2 Well, 250 acre feet are from the City's Northern Open Space well, and 25 acre feet are
from the Torson Well. These wells are used by or for the City for agricultural and green belt
irrigation, all nonpotable uses. The District or City may relocate or add wells in order to
continue to extract up to their Annual Entitlement provided that such change has no adverse
effect upon the Project. Any such changes wilt be reflected by modification to Exhibit B
hereto, subject to the mutual agreement of the Authority, the City and the District, which
agreement shall not be unreasonably withheld. For purposes of this Agreement, "extraction"
or "extract" shall include diversion of surface or subsurface water from the Basin by any
method; and "year" shall mean fiscal year (July 1 - June 30).
Section 3. Annual Entitlement Cap and Protections.
Subject to the terms and conditions set forth in this Agreement, the Authority agrees that it
will not operate the Project in a manner that will infringe upon the District's or City's
extraction of water in accordance with-Exhibit B for reasonable and beneficial use up to the
Annual Entitlement. District and City each agree that they will not individually or collectively
extract water from the Basin in excess of the Annual Entitlement. The Annual Entitlement and
Annual Entitlement Allocation shall be measured based upon the fiscal year and shall not carry
over from year to year.
SJBA/CVWD/City Agreement Page 6
Section 4. Determination of Project Impact and Remedy.
A. Remedy for Project Caused Impacts: Quantity. In the event that (i) either the District
or the City is not able to extract its Annual Entitlement Allocation to meet its needs either in
accordance with the production quantities outlined on Exhibit B (B-1), or by operating the
City's and District's then-existing Basin extraction facilities in any combination or manner that
would achieve a production quantity to meet then existing needs without incurring substantial
additional expense; and (ii) the water levels in any of the above referenced District or City
wells are less than the applicable Trigger Level(s) stated in Exhibit B (B-2) hereto; and (iii) the
Authority Project is extracting water from the Basin at a location which could adversely
impact the supply of water to the affected well(s); and (iv) the District or City demonstrate by
reasonably clear evidence the foregoing three factors and that the Project extractions of water
from the Basin, and not other causes including but not limited to the extractions of other
pumpers, are causing all or a specified percentage of the interference, the burden shall shift to
the Authority for rebuttal.` The District or City shall provide written documentation of the
facts supporting each of the foregoing four factors including a description of the changed
conditions and all relevant data. The District or City shall also provide any other existing
information the Authority reasonably requests. In the event that the aforementioned
demonstration by District or City is successfully made, the Authority shall have the
opportunity to rebut the evidence and conclusions submitted by the District or City, or any of
the above listed factors prerequisite thereto. Regardless of which entity provides the notice,
District and City shall cooperate fully in providing information regarding District and City
V This shifting of the burden shall not apply to the Rosenbaum #2 well (see Exhibit B).
SJBA/CV WD/City Agreement Page 7
facilities, operations, and other information requested by the Authority. In the event that the
District or City demonstrate that each of the factors prerequisite to shifting the burden to the
Authority is satisfied, and the Authority does not rebut any of them, and on written request of
District or City, the Authority shall reduce or cease Project pumping to the extent necessary to
alleviate the demonstrated Project interference with the District or City well(s). In the
alternative, the Authority shall have the option of selecting and undertaking one or more of the
following steps to remedy the impacts to the extent caused by the Project:
(1) provide a replacement supply of water to the District, or City via the District,
of a like quality and quantity equal to the quantity which the District or City
would be extracting but for Project interference (not to exceed the appropriate
Annual Entitlement Allocation nor to exceed the quantity of Project water then
available);
(2) pay any substantial additional expense of operating the District and/or City
Basin extraction facilities in a manner which will alleviate the Project caused
water supply impact; or
(3) take other measures to alleviate the impact to the extent caused by Project
operation as reasonably agreed by the Authority and the District.
B. Remedy for Project Caused Impacts: Quality. In the event that (i) the water
extracted by the District or City in accordance with the production quantities set forth in
Exhibit B (B-1) does not meet the water quality parameters stated in Exhibit B (B-2); and
(ii) the District or City or both cannot obtain water of sufficient quality for delivery to meet
its needs by operating the City's and District's then-existing Basin extraction facilities in any
SIBAICVWDlCity Agreement Page 8
combination or manner that would achieve a production quantity and quality to meet then
existing needs without incurring substantial additional expense; and (iii) the Authority Project
is extracting water from the Basin at a location which could adversely impact the supply of
water to the affected well(s); and (iv) the District or City demonstrate by reasonably clear
evidence the foregoing three factors and that Project extractions of water from the Basin, and
not other causes including but not limited to the extractions of other pumpers, are causing all
or a specified percentage of the decline in water quality of the District's or City's extractions,
the burden shall shift to the Authority for rebuttal.' The District or City shall provide written
documentation of the facts supporting each of the foregoing four factors including a
description of the changed conditions and all relevant data. The District or City shall also
provide any other existing information the Authority reasonably requests. In the event that
the aforementioned demonstration is successfully made, the Authority shall have the
opportunity to rebut the evidence and conclusions submitted by the District or City, or to rebut
any of the above listed factors prerequisite thereto. Regardless of which entity provides the
notice, District and City shall cooperate fully in providing information regarding their
facilities, operations, and other information requested by Authority. In the event that the
District or City demonstrate that each of the factors prerequisite to shifting the burden to the
Authority is satisfied, and the Authority does not rebut any of them, and on written request of
District or City, the Authority shall reduce or cease Project pumping to the extent necessary to
alleviate the demonstrated Project interference with the water quality of the District or City
'/ This shifting of the burden shall not apply to the Rosenbaum //2 well (see Exhibit B).
SIBA/CVWD/City Agreement Page 9
well(s). In the alternative, the Authority shall have the option of selecting and undertaking
one or more of the following steps to remedy the impacts to the extent caused by the Project:
(1) provide a replacement supply of water to the District or City via the District,
either in an amount equal to that rendered unusable by the Project caused
interference and of a quality which satisfies the Exhibit B (B-2) criteria, or
water of sufficient quality to blend with the District and City's other sources of
supply to accomplish the same (not to exceed the appropriate Annual
Entitlement Allocation, nor to exceed the quantity of Project water then
available); or
(2) pay any substantial additional expense of operating the District and/or City
Basin extraction facilities in a manner which will alleviate the water quality
impact; or
(3) take other measures to remedy the impacts to the extent caused by Project
operation as reasonably agreed by the Authority and the District.
The parties recognize that the District's or City's water quality may vary depending, among
other things, upon the quality of imported water the District or City introduces into its system,
which may reduce the water quality referenced herein. This shall be the subject of an
objective determination in the event that a valid request for remedy is made as provided above.
C. Accelerated Remedy to Avoid Injury. After District or City satisfaction of the section
4A or 4B requirements, and where necessary to avoid imminent significant adverse impacts to
District or City, the Authority shall undertake the appropriate remedy pursuant to section 4A
or B above as soon as possible, notwithstanding any dispute or question regarding whether the
SJBA/CV WD/City Agreement Page 10
Project is causing the impact. The Authority may provide this accelerated remedy even if the
Authority disputes the adequacy of the City or District section 4A or 4B demonstration or
otherwise disputes that the Project caused or is causing the alleged interference, and shall
remain fully entitled to resolve the causation issue. District and City shall use this accelerated
remedy provision solely to address impacts caused by Project operations.
D. Reimbursement. In the event that the District or City do not or have not made the
requisite section 4A or 4B demonstration, or Authority either rebuts the presumption that the
Project is causing the impacts, or makes the appropriate showing as referenced in Section 4A
or 4B above, and the Authority has already provided or commenced to provide any remedy
pursuant to Section 4A and/or 413, the entity or entities which provided notice pursuant to
Section 4A and/or 4B (District and/or City) shall promptly reimburse the Authority in kind or
in cash, or a combination thereof, as requested by the Authority. The Authority shall not
require in kind reimbursement if the District and City reasonably demonstrate that all of the
water available to them is then needed for reasonable and beneficial use by their customers.
Reimbursement shall cover the full replacement costs for any water provided by the Authority
to District or City and the costs of so providing water, or for the water supply impacts and
costs incurred to or by the Authority if Project pumping is reduced or ceased or if any other
form of remedy is provided, and for any other consequential costs or losses to the Authority.
If the Authority's rebuttal or showing is that a portion rather than all of the remedy was
unjustified, the reimbursement shall be appropriately adjusted.
SJBA/CV WD/City Agreement Page 11
Section 5. In Lieu Water.
Where the Authority elects to provide water to the District or to the City via the District
pursuant to subsection 4A(1) or 413(1) hereof(hereafter "In Lieu Water"), the provisions of
this section shall apply. In Lieu Water excludes Project Water provided to the District by the
Authority for any reason other than described in Section 4 above, and is subject to the
limitations stated in subsections 4A(1) and 413(1).
A. Nonpotable or Reclaimed Water. The Authority may use nonpotable or reclaimed
water as In Lieu Water to remedy Project impacts on the District's or City's nonpotable water
supplies, which supplies are identified in section 2 above. The Authority may not provide
reclaimed water as In Lieu Water if doing so would prevent use of the water in the same
manner as would have occurred had the affected well water been used instead of the In Lieu
Water. Any delivery of nonpotable or reclaimed water as In Lieu Water must be made by the
Authority to the District's then-existing nonpotable delivery system, if feasible to provide
adequate In Lieu Water consistent with this Agreement. Upon request by the Authority, the
parties shall take all actions necessary or convenient to enable the Authority to take measures
to permit such delivery of nonpotable or reclaimed water as In Lieu Water, including the
acquisition of any necessary regulatory approvals.
B. Sources. The Authority may use Project or other sources of water as In Lieu Water.
District and City shall fully cooperate to the extent necessary to make other sources of water
available for use as In Lieu Water, and shall be reimbursed for any additional costs incurred to
District or City thereby.
SJBA/CV WD/City Agreement Page 12
C. Point of Delivery. Except for nonpotable or reclaimed water, In Lieu Water to be
provided to the District or to the City pursuant to this Agreement may be delivered to the
District at any of the following points of delivery: (1) the point of delivery for Project Water
to be delivered to the District pursuant to the Project, which is anticipated to be located in the
425 pressure zone near the intersection of Ortega Highway and Rancho Viejo Road, or other
Project point of delivery mutually agreed to by the Authority and the District ("Project point
of delivery"); (2) any then existing point of delivery intertie between the Metropolitan Water
District of Southern California system and the District system ("MWD point of delivery")
upon mutual agreement between the parties and provided that capacity for such delivery is
available in the MWD and District systems, or (3) another point of delivery as mutually
agreed by the Authority and District ("Alternative point of delivery"). Delivery of reclaimed
or nonpotable water as In Lieu Water shall be made to the District's then-existing nonpotable
delivery system.
D. Costs. The costs for delivery of In Lieu Water to the District or City at the Project
Point of Delivery and the costs for delivery of non potable or reclaimed water as In Lieu
Water shall be borne by the Authority, except as follows. The District or City shall be
responsible to reimburse the Authority in an amount equal to the avoided costs of pumping,
conveyance, treatment, and related costs. Costs associated with delivery of In Lieu Water to
the Alternative point of delivery or the MWD point of delivery shall be allocated by agreement
between the Authority and the District, which agreement shall not be unreasonably withheld.
E. Schedule for Delivery. In Lieu Water shall be provided to the District or to the City
via the District, on a schedule to be provided by the District to the Authority. The schedule
•
SJBA/CVWD/City Agreement Page 13
shall take into account the needs of the party for whom the water is being delivered and
Authority's operating capability. Where accelerated delivery is necessary to avoid impacts as
described in subsection 4C above, the Authority shall initiate accelerated delivery consistent
therewith.
Section 6. Responsibility for Well Facilities.
The District and the City shall be responsible for maintaining, repairing, replacing and
operating all of the wells referenced on Exhibit B, related facilities, and all replacement wells
and related facilities, such that they are in good condition, and for keeping records thereof.
Should the District or City fail to do so, such failure shall eliminate or offset any obligation of
the Authority to provide any remedy pursuant to Section 4 hereof to the extent that such
failure contributes to or causes the impairment of the City's or the District's water supply or
quality.
Section 7. Responsibilities for Delivery and Distribution of Water.
Neither the Authority, the other Members, nor any of their officers, agents or employees shall
be liable for the control, carriage, handling, use, disposal, or distribution of(1) water
extracted by District or City or (2) Project Water or In Lieu Water delivered by Authority in
accordance with the provisions of this Agreement after any such water has reached the point of
delivery; nor for claims or damages of any nature whatsoever, including but not limited to
property damage, personal injury or death, arising out of or connected with the control,
carriage, handling, use, disposal or distribution of any such water beyond said point of
delivery; and District or City hereby agree to jointly and severally defend, indemnify and hold
SJBA/CVWD/City Agreement Page 14
harmless the Authority, the other Members and their officers, agents, and employees, from
any such damages or claims of damages.
Section 8. Project Monitoring Plan.
The Authority agrees that within one year of the effective date of this Agreement it.will
develop a Project monitoring plan. The basic outline of such a program, which shall be
subject to modification by the Authority from time to time, is attached in Exhibit A hereto.
The District and City shall cooperate on an ongoing basis by supplying the Authority with all
information that either or both have developed or acquired regarding water production by
District, Other Members, City, and other pumpers in the Basin.
Section 9. Authority Use of Unused Annual Entitlement
A. The Authority shall be entitled to use for Project purposes any portion of the Annual
Entitlement not to be used in any given year by District and/or City. District and City shall
provide written notice to the Authority on or before April 1 of each year stating the quantities
they each reasonably intend to use during the following fiscal year in acre-feet (the sum of
those quantities is referred to as "9A Quantity"). The Authority shall be entitled to extract the
difference between the Annual Entitlement and the 9A Quantity (that difference is referred to
hereafter as "Q"), at times determined by Authority during the following fiscal year.
B. In the event that the actual quantities extracted by the City and District during the
above referenced fiscal year are forecast to vary from the 9A Quantity, the City or District
shall provide written notification to the Authority as soon as possible setting forth the revised
quantities provided that the sum of the revised quantities ("911 Quantity") shall not exceed the
Annual Entitlement, and the Authority shall accordingly increase or reduce Q ("Revised Q").
SJBA/C V WD/City Agreement Page 15
If pursuant to this section the Authority has already extracted an amount greater than Revised
Q, the Authority shall cease extraction pursuant to this section; the City and/or District shall
extract water as necessary to supply then-existing demands to the extent consistent with this
Agreement and not to exceed the 9B Quantity; and the City and/or District shall increase the
9A Quantity for the immediately following fiscal year by an amount equal to the difference
between Q and Revised Q, however neither the District nor the City shall extract the amount
of the increase (the difference between Q and Revised Q) during the immediately following
fiscal year, but shall leave that amount in the Basin.
C. City and District will cooperate with and support Authority's acquisition of a permit
and/or license from the Water Board to divert water in accordance with this section.
Section 10. Authority Project Water Protections.
Subject to the terms and conditions of this Agreement, the District and City each agree that
they will not individually or collectively, directly or indirectly object to or infringe upon the
Authority's production of water for Project purposes.
Section 11. SJBA Facility Use Agreement
The City contracted for the right to use certain Authority facilities, including but not limited to
the "Kinoshita SJBA #2 Well" referenced in Section 2 and Exhibit B hereof, pursuant to an
agreement entitled Agreement for the Use of San Juan Basin Authority Wells, Pipelines and
Production Facilities dated May 19, 1992 ("1992 Agreement"). The terms of that Agreement
are incorporated herein by reference. In the event of a conflict, the terms of the 1992
Agreement shall prevail.
•
SJBA/CV WD/City Agreement Page 16
Section 12. Imported Water.
The Authority shall have the right to pump any return flow tributary to the Basin from water
imported by the Authority, the District, the City, Other Members, and otherwise as authorized
by law, and any water imported by the Authority and stored in the Basin. Notwithstanding the
foregoing, this section shall not impair or diminish the Annual Entitlement or the Annual
Allocation Entitlements of the City or District. In the event that any Authority Member
participating in the Project refuses to, or provides only a partial consent to Project extraction
of the return flow from water imported by that Member which return flow is tributary to the
Basin, and that Member's rights or responsibilities are not proportionately reflected in other
Project related agreements, this section shall not apply and the parties shall renegotiate this
section in good faith to ensure that the District's dedication of imported water return flow is
proportional to its rights and responsibilities regarding the Project as reflected in this and other
Project related agreements.
Section 13. Withdrawal of Protest and Objection.
The District and City agree that they will not, in any way, object to or challenge application to
appropriate no. 30123 or any permit or license issued pursuant thereto, and will take all
actions necessary to withdraw the petition for reconsideration and to dismiss the protest to said
application, or other action as appropriate to effectively dismiss the protest as requested by the
Authority, promptly upon full execution of this Agreement.
Section 14. CEQA Compliance.
The District, the City, and Authority agree that the terms and conditions of this Agreement are
contingent on the satisfactory completion by the Authority of all requirements pursuant to the
SJBA/CVWD/City Agreement Page 17
California Environmental Quality Act (Public Resources Code Section 21000 et. seq.) for the
Project.
Section 15. Water Rights.
This Agreement does not address and is not intended to affect the asserted claims of historical
water rights by the District and City, except that District and City shall not assert any water
rights claims against water rights application 30123, or any permit or license issued pursuant
thereto, or against the Project in any manner, provided that this Agreement is in full force and
effect.
Section-16. Members of the Authority Bound.
The rights and obligations pursuant to this Agreement shall inhere to the benefit of and be
binding upon only those Members of the Authority who are members of Project Committee
No. 4 to the extent and in accordance with their respective percentages of interest in the
Project. In the event that the mechanism for participation in the Project is changed from
membership in Project Committee No. 4 to another mechanism, this provision shall be
accordingly amended.
Section 17. Notices.
All notices, payments, transmittals of documentation and other writings required or permitted
to be delivered or transmitted to any of the parties under this Agreement shall be in writing,
personally served or deposited in a United States mail depository, first class postage prepaid,
and addressed as follows:
SMAX WD/City Agreement Page 18
If to District (for District and/or City)
Capistrano Valley Water District
32450 Paseo Adelanto
San Juan Capistrano, CA 92675
Ann. General Manager
If to City: City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Ann. City Manager
If to Authority: San Juan Basin Authority
30290 Rancho Viejo Road
San Juan Capistrano, CA 92675
Ann. General Manager
or such other address or person as any party may direct to the other in writing. Except where
service is by personal delivery or by registered or certified mail, return receipt requested,
service of any instrument or writing shall be deemed completed forty-eight (48) hours after
deposit in a United States mail depository.
Section 18. Amendments.
This Agreement may be amended at any time by agreement of all the parties set forth in
writing, except insofar as any proposed amendments are in any way contrary to applicable
law.
Section 19. Assignment.
No assignment or transfer of this Agreement or any part hereof, rights hereunder, or interest
herein shall be valid unless and until it is approved by all parties to this agreement.
SJBA/CVWD/City Agreement Page 19
Section 20. Dispute Resolution.
In the event of any dispute arising out of those portions of this Agreement involving
monitoring, water quality degradation, water quality or quantity restoration, availability of
water, or other technical (as opposed to legal) issue, the parties agree to promptly
submit the dispute to binding arbitration in accordance with Code of Civil Procedure section
1280 e- t seq. Such arbitration shall be conducted by two civil engineers with expertise in
hydrology or other technically competent persons and one attorney familiar with California
water rights law. The parties shall each choose one of the technical arbitrators, and the two
technical arbitrators shall jointly choose the attorney. Legal issues shall be submitted to
binding arbitration in the same manner, except that the arbitration shall be conducted by two
attorneys familiar with California water rights law and one civil engineer with expertise as
described above.
Section 21. Authority.
Each officer of Authority, District, and City affixing his or her signature below thereby
warrants and represents that he or she has the full legal authority to bind his or her respective
party to all of the terms, conditions and provisions of this Agreement, that his or her
respective party has the full legal right, power, capacity and authority to enter into this
Agreement and perform all of the obligations herein, and that no other approvals or consents
are necessary from his or her respective party in connection therewith.
Section 22. Waiver and Delay.
No failure to exercise or delay in exercising any right, power or remedy accruing to either
party on any breach or default of the other hereunder shall impair any such right, power or
SJBA/CVWD/City Agreement Page 20
remedy, or be construed as a waiver of any such breach or default, and no waiver of any
single breach or default shall be construed as a waiver of any other breach or default
theretofore or thereafter occurring.
Section 23. Termination.
This Agreement shall terminate in the event that (a) the Project is abandoned, which shall
occur if the Authority or its successor affirms in writing that it is abandoning the Project or if
the Project operations have commenced but cease for more than five (5) years and there are no
plans to reactivate it; or (b) District or City cease or abandon their water use, which shall
occur if the City or District affirm in writing that it is ceasing or abandoning use of that water,
or if such water use has been ceased for whatever reason by final order of an administrative
agency or court with jurisdiction. In the latter event the Authority's right to divert that water
pursuant to Section 9 hereof shall survive.
Section 24. Entire Agreement.
This Agreement represents the entire understanding of the Authority, the City and the District
as to those matters contained herein, and no prior oral or written understanding shall be of any
force or effect with respect to those matters covered by this Agreement. This Agreement shall
be governed by the laws of the State of California and construed as if drafted by all parties
hereto equally. This Agreement may not be modified, altered or amended except in writing
signed by the Authority, the District, and the City.
SJBA/CVWD/City Agreement Page 21
Section 25. Successors In Interest.
This Agreement, and all of the terms, conditions and provisions herein, shall inure to the
benefit of, and be binding upon, the Authority, the District, the City, and their respective
successors and assigns.
IN WITNESS WHEREOF, the Authority has caused this Agreement to be executed by
the Chairman of the Board of Directors and attested by the Secretary thereof, the District has
caused this Agreement to be executed by its President of the Board of Directors, and attested
to by its Secretary, and the City has caused this Agreement to be executed by its Mayor and
Chair of the City Council, and attested to by its Clerk, effective the date first written above.
SAN JUAN BASIN AUTHORITY
P sident
ATTES f •�-- fJ
�Se�retary
CAPISTRANO VALLEY WATER-DITRICP
President.----
ATTEST:
r
Approved by:
%/l�i��
Michel A. Staples
SJBA/CVWD/City Agreement Page 22
CITY OF SAN JUAN CAPISTRANO
Mayor
ATTEST:
Secretary
A ROVED BY:,
JJ
chard Denhalter, City Attorney
EXHIBIT A
DRAFT' PROJECT MONITORING PLAN
The Authority shall annually prepare and adopt an annual report (herein the "Annual
Report"). The Annual Report shall be finalized on or before April 1 of each year and
shall be based on data for the preceding calendar year. The Authority shall have the
authority to amend the Annual Report at any time it determines that amendment is
necessary or desirable.
The Annual Report shall describe the condition of the water resources within and
affecting the Basin, proposing a Basin groundwater production and replenishment
and/or direct imported water deliveries for the ensuing year and shall include, but not
be limited to the following information:
1. Quantity of water storage within the Basin and the relative change of water
storage from the prior year(s).
2. Water quality conditions within the Basin and the relative change in such
conditions from the prior year(s).
3. An accounting of the Basin water production, and to the extent possible other
persons and entities producing water from the Basin.
4. An accounting of any and all imported water stored in the Basin during such
year by Authority, including but not limited to the imported water storage by
the Authority for purposes of banking and the conditions or circumstances
under which such water was stored.
5. An accounting of any other imported water delivered by the Authority directly
to a member or as in lieu water to a Basin pumper.
6. An assessment of the extent to which the Authority's Project program of the
immediately preceding year was implemented and quality and quantity goals
achieved with regard to Basin water.
7. A proposed Basin water management program for the ensuing year based upon
recommended water quality and water level goals. The management program
should include, but not be limited to the annual project yield and other Basin
groundwater production goals for the Authority and estimates of other parties'
production of Basin water. Basin water storage goals for the Authority should
include banking goals and the amount and timing of any anticipated imported
water deliveries.
SAN JUAN BASIN AUTHORITY AGREEMENT
EXHIBIT B
Rosenbaum Rosenbaum Hollywood CVWD CVWD Mission Kinoshita North Torson
#1 #2(3) #2A X4 N5 St. Well S/BA A2 Open Site (2)
Space
� (2)
Production
(B-1)
Average 600 500(3) 400 200 500 700 150 250 25
Annual,
aftyr
Trigger 130 --- 65 50 70 64 40 (2) (2)
Level(')
Water
Quality
(B-2)
Maximum 750 75031 1,200 2,000 1,200 1,200 1,200 750 1,200
TDS, mg/1
(1) Elevation above mean sea level
(2) Well location not determined
(3) Rosenbaum 112 is seasonally dry and suffers existing production shortfalls. Therefore, the annual Production
quantity (B-1) and Water Quality (13-2) vary without regard to Project operation, and no Trigger Level (B-1) is
being established.
m55u(2(.02
i°
• !{• I it
10
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y. q
8,��
t� �y
SAN JUAN BASIN AUTHORITY
27500 LA PAZ ROAD• LAGUNA NIGUEL, CA 92677•(714) 448-4055•FAX (714) 831-5651
t''lnov
April 7, 1998
Ms. Cheryl Johnson
City Clerk
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Regarding: Amendment to 1995 Agreement
Dear Cheryl:
Enclosed is a fully executed copy of the above-referenced agreement. We have retained a copy
for our files.
If you have any questions or comments concerning this matter, please do not hesitate to contact
me.
Sincerely,
AN JJrr
UAN BASIN AUTHORITY
(6
ley
Administrative Assistant
Enclosure
AGENDA ITEM March 24, 1998
TO: George Scarborough, City Manager and General Manager
FROM: Amy Amirani, Public Works Director
SUBJECT: Consideration of"San Juan Basin Authority- Capistrano Valley Water District and
City of San Juan Capistrano Amendment to Agreement" - San Juan Basin Water
Rights
RECOMMENDATION
By motion,
1. Approve the San Juan Basin Authority - Capistrano Valley Water District and City of San
Juan Capistrano Amendment to Agreement;
2. Authorize the Chairman/Mayor to sign the letter to the State Water Resources Control Board
requesting the withdrawal of the City's and District's requested priority over all other
applications pending on the San Juan Basin.
SITUATION
On November 21, 1995, the City and District entered into an agreement with the San Juan Basin
Authority (Authority) to protect the District's and City's water rights and groundwater
production facilities from potential impacts of the proposed Authority Desalination Plant. In the
original agreement, only those Authority members participating in the Desalination Plant (Project
Committee No. 4) were bound under the terms of the agreement to study and implement a water
management and use program within the San Juan Creek Basin. Since the agreement was
approved, the Authority members and the water rights situation have changed. With Capistrano
Beach Water District (CBWD) becoming an Authority member and developing their own
desalination project independent of the Authority, it became apparent that the agreement needed
to apply to all Authority members, not just those in Project Committee No. 4. This amendment
makes the terms of the agreement binding to all members of the Authority.
This amendment was crafted by Michelle Staples of the Law Offices of Susan Trager, counsel to
the District and City on water rights. A copy of the amendment is attached for your consideration.
This item was approved by the Authority Board at their March 3'd meeting. Staff recommends
approval of this amendment.
On January 15, 1998, the District and City submitted a letter to the State Regional Water Quality �,�
Control Board Division of Water Rights requesting that our water rights application be given
priority over all other applications pending in the San Juan Basin. Staff and counsel have met with CV wp
members of the Authority and CBWD to resolve our concerns which led to this letter being sent.
We have negotiated assurances from the Authority and CBWD that the District's and City's C
entitlement will be preserved. Staff is requesting that the Council/Board of Directors authorize the
Chairman/Mayor to sign the attached letter to the State Water
Resources Control Board asking
FOR CITY COUIXIL
•
AGENDA ITEM
March 24, 1998
Page 2
that the District and City request for priority over all other applications pending on the San Juan
Basin be withdrawn.
NOTIFICATION
San Juan Basin Authority
c/o Moulton Niguel Water District
27500 La Paz Road
Laguna Niguel, California 92656
Capistrano Beach Water District
Post Office Box 2008
Capistrano Beach, California 92624
COXMSSIONA30ARD REVIEW_ RECOMMENDATIONS
None.
FINANCIAL CONSIDERATIONS
None.
ALTERNATE ACTION
1. Approve the San Juan Basin Authority - Capistrano Valley Water District and City of San
Juan Capistrano Amendment to Agreement, and authorize the Chairman/Mayor to sign the
letter to the State Water Resources Control Board requesting the withdrawal of the City's and
District's requested priority over all other applications pending on the San Juan Basin.
2. Deny approval of the amendment and letter.
3. Request additional information from staff.
RECOMMENDATION
By motion,
1. Approve the San Juan Basin Authority - Capistrano Valley Water District and City of San
Juan Capistrano Amendment to Agreement;
2. Authorize the Chairman/Mayor to sign the letter to the State Water Resources Control Board
requesting the withdrawal of the City's and District's requested priority over all other
p:\eng\agncy\sjba\amd95agr.doc
.AGENDA ITEM
March 24, 1998
Page 3
applications pending on the San Juan Basin.
Respectfully submitted, Prepared by,
��
Amy Amirani Robert W. Clark
Public Works Director District Engineer
Attachments: Amendment to Agreement - San Juan Basin Authority - Capistrano Valley Water
District and City of San Juan Capistrano
Letter to Mr. Ed Anton, Chief- State Water Resources Control Board
pAeng\agncy\sjbalamd95agr.doc
• Joao i
32400 PASEO ADELA NTOMEMEBE RS OF THE CITY COUNCIL
O CAMPBELL
J
SAN JUAN CAPISTRAND,CA 92675 � I ll OHNNGR GREIEIN ER
(7 14) 493-1171 �j polo no��up WYATT HART
(714) 493-1053 (FAX) unnim� 1961 GILJONES
176 DAVID SWERDLIN
• • CITY MANAGER
GEORGE SCARBOROUGH
March 13, 1998
Mr. Ed Anton, Chief
State Water Resources Control Board
Division of Water Rights
901 "P" Street
P.O. Box 2000
Sacramento, California 95812-2000
Re: Request for Priority of Application Filed By Capistrano
Valley Water District/City of San Juan Capistrano
(Reference Application Nos. 30123 , 30171, 30337, and
30637)
Dear Mr. Anton:
This letter is jointly submitted on behalf of the San Juan
Basin Authority ("SJBA") , Capistrano Beach Water District
("CBWD") , Capistrano Valley Water District ("CVWD") , and the City
of San Juan Capistrano ("City") . CVWD and the City have filed an
as yet unnumbered application to appropriate their current and
projected groundwater supplies (2 , 900 acre feet annually ("afa")
and 425 afa, respectively) from the San Juan Creek, Trabuco
Creek, and their tributaries (collectively, the "San Juan Basin")
located in Orange County, California. SJBA and CBWD each have
previously filed applications to appropriate waters of the San
Juan Basin (application numbers 30123 and 30337, respectively) .
By letter dated January 15, 1998, CVWD and the City
requested that their water right application be given priority
over all other applications pending on the San Juan Basin.
By agreement dated November 21, 1995, a copy of which is
enclosed, SJBA agreed that it will operate its project in a
manner that does not impair CVWD's or the City' s extraction of
water up to 2 , 900 afa and 425 afa, respectively. That agreement
further provides that SJBA may pump ali or a portion of these
amounts whenever CVWD and/or the City are not doing so. The
environmental analysis prepared for the SJBA project evaluates
M2DRUG USE
cap\21t298 a.mas AG E
San Juan Capistrano: Preserving the Past to Enhance the Future
Mr. Ed Anton, Chief
March 13 , 1998
Page 2
and mitigates the environmental impacts of the project assuming
groundwater production totalling 3 , 325 afa by CVWD and the City.
By agreement dated March 1, 1998 (copy enclosed) , CBWD
likewise agreed to operate its project in a manner that does not
impair CVWD's or the City's extraction of water up to 2 , 900 afa
and 425 afa, respectively.
The enclosed agreements eliminate any potential adversity
among the three applications and effectively reserve to CVWD and
the City the groundwater supplies set forth in their water right
application. CVWD and the City withdraw their request for
priority over applications 30123 and 30337 on condition that,
consistent with the provisions of the enclosed agreements, the
current and projected San Juan Basin groundwater supplies relied
upon by CVWD and the City are not considered water which is
available for appropriation in connection with application nos.
30123 or 30337 . We will be submitting proposed permit terms to
accomplish this, and look forward to your response after you have
received those terms.
Sincerely,
SAN JUAN ByASIN AUTHORITY
By: 11-7
ohn Schat
Chairman f the Board
CAPISTRANO BEACH WATER DISTRICT
Ress—e
apenter --
DO,,,'3'51). FrrN/nnla�
V1GG P(YS��c✓ll
[signatures continued on the next page]
capA21 t298a.mas
Mr. Ed Anton, Chief
March 13 , 1998
Page 3
CITY OF SAN JUAN CAPISTRANO
By: i
-dil Jones
Mayor
CAPISTRANO VALLEY WATERIOISTRICT
i
By:
Gil Jones
Chairman of the Board
cap\21t298a.mas
RESOLUTION NO. CRA 95-12-5-1. DEPOSIT AND INVESTMENT OF
AGENCY FUNDS AND AUTHORIZING SIGNATURES - A
RESOLUTION OF THE SAN JUAN CAPISTRANO COMMUNITY
REDEVELOPMENT AGENCY, DELEGATING TO THE AGENCY
FINANCE OFFICER AUTHORITY TO DEPOSIT AGENCY FUNDS AND
TO INVEST AND REINVEST AGENCY FUNDS, AUTHORIZING
SIGNATURES, AND REPEALING RESOLUTION NO. CRA 94-12-6-1
The motion carried by the following vote:
AYES: Directors Campbell, Hart, Jones, Nash, and Chairman Swerdlin
NOES: None
ABSENT: None
COUNCILM_ANIC ITEMS
- —� 1. AGREEMENT BETWEEN SAN JUAN BASIN AUTHORITY. PI TRANO
VALLEY WATER DISTRICT. AND CITY OF SAN JUAN CAPISTRANO
RELATIVE TO WATER RIGHTS AND GROUNDWATER PRODUCT
FACILITIES (600.50)
Written Communication:
Report dated December 5, 1995, from Council Member Jones, recommending that the
proposed Agreement with the San Juan Basin Authority, the Capistrano Valley Water
District, and the City be approved to protect the District's and the City's water rights and
groundwater production facilities from potential impacts of the proposed SJBA Desalination
Plant. The Agreement would ensure that the proposed pumping from SJBA wells will not
impact the District's production of 2,900 acre feet or the City's production of 425 acre feet
from the groundwater basin.
Approval of Agreement Re: Water Rights and Groundwater Product Facilities:
It was moved by Council Member Nash, seconded by Council Member Swerdlin, and
unanimously carried that the Agreement with the San Juan Basin Authority, the Capistrano
Valley Water District, and the City be approved to protect the District's and the City's water
rights and groundwater production facilities from potential impacts of the proposed SJBA
Desalination Plant. The Mayor was authorized to execute the Agreement on behalf of the
City.
City Council Minutes -15- 12/5/95
AGENDA ITEM December 5, 1995
TO: Honorable Mayor and Members of the City Council
FROM: Gil Jones, City Council Member
SUBJECT: San Juan Basin Authority, Capistrano Valley Waster District, City of San Juan
Capistrano Agreement
RECOMMENDATION:
By motion, approve the San Juan Basin Authority, Capistrano Valley Water District, City of San Juan
Capistrano Agreement and authorize the Mayor to execute the Agreement on behalf of the District.
SITUATION:
The attached agreement has been negotiated between the San Juan Basin Authority (SJBA), the
District and the City to protect the District's and City's water rights and groundwater production
facilities from potential impacts of the proposed SJBA Desalination Plant. The basic terms of the
agreement are to make sure that the proposed pumping from SJBA wells will not impact the District's
production of 2900 acre feet or the City's production of 425 acre feet from the groundwater basin.
The agreement provides remedies such as cessation of pumping by SJBA, or providing replacement
water if our facilities are impacted. The agreement also provides that the District and City will not
object to or challenge the SJBA water rights application, and will withdraw the protest to this
application upon full execution of the Agreement.
The SJBA Board of Directors approved this agreement on November 21, 1995. The agreement needs
to be approved by the City before December 31, 1995, in order for the District and City to comply
with a deadline established by the State Water Resources Control Board.
FINANCIAL CONSIDERATIONS:
There is no direct financial impact associated with approving this agreement. The amount of
groundwater produced by the District and City under the terms of the agreement provide a savings
of approximately$1.0 million per year as compared with purchasing a similar amount of water from
MWD. The agreement of SJBA not to challenge this production of groundwater is very important.
NOTIFICATION:
Not applicable.
FOR CITY COUNCIL AGENT
Agenda Item -2- December 5, 1995
ALTERNATE ACTIONS:
1. Approve the San Juan Basin Authority, Capistrano Valley Water District, City of San Juan
Capistrano Agreement and authorize the Mayor to execute the Agreement on behalf of the
District.
2. Request additional information from staff.
RECOMMENDATION:
By motion, approve the San Juan Basin Authority, Capistrano Valley Water District, City of San Juan
Capistrano Agreement and authorize the Mayor to execute the Agreement on behalf of the District.
Respectfully submitted,
elm
Gil Jones
City Council Member