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HomeMy WebLinkAbout2003-272 -' 1 2 RESOLUTION NO, 2003-272 A RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING THAT CERTAIN CO-LEAD AGENCY AGREEMENT BY AND BETWEEN THE CITY OF SAN BERNARDINO AND THE SAN BERNARDINO VALLEY MUNICIPAL WATER DISTRICT RELATING TO THE NORTH LAKE AND SOUTH LAKE PROJECTS WITHIN THE CITY OF SAN BERNARDINO 3 4 5 6 WHEREAS, the City of San Bernardino, California (the "City") is a municipal 7 corporation and charter city, duly organized and existing pursuant to the provisions of the constitution of the State of California; and 8 WHEREAS, the City and the San Bernardino Valley Municipal Water District 9 (the "Water District") are members, together with the Inland V alley Development Agency, of the San Bernardino Regional Water Resources Authority (the "JPA") which was formed in 1998 by the City, the Water District and the Inland Valley Development Agency for the purposes of determining the feasibility of undertaking one or more water resource and lake projects within portions of the City; and 10 11 12 13 14 15 16 17 18 19 WHEREAS, the JPA has stated its intent to file an application to the City in its role as the "Applicant" for the purposes of undertaking an environmental impact review and the preparation of an Environmental Impact Report ("EIR") as required by the California Environmental Quality Act of 1972, as amended ("CEQA"), Public Resources Code Section 21000, et seq., and its implementing regulations found at Title 17, California Code of Regulations Section 15000, et seq, ("CEQA Guidelines"); and WHEREAS, the application may include the request for General Plan Amendments, Development Code Amendments, and other modifications in the City's Circulation Element of the General Plan to accommodate the land assembly and the construction by the Water District of a water reservoir of not less than 35 acres in surface area generally located within the area bounded by "E" Street, Ninth 20 Street, Baseline Avenue and the 1-215 Freeway; and 21 WHEREAS, the JP A further may request that the City consider appropriate 22 General Plan Amendments and Development Code Amendments to accommodate further commercial and retail development and other smaller bodies of water and 23 water features in the area generally referred to as Central City South, bounded by Mill Street, "E" Street, Rialto Street and the 1-215 Freeway; and 24 25 26 27 28 WHEREAS, pursuant to CEQA and the CEQA Guidelines both the City and the Water District may be the "lead agency"; and the parties have determined it would be in the best interest of the JP A for both parties to serve as the lead agency and jointly prepare the EIR for the purpose of complying with CEQA on behalf of the JP A; and 48 0330-8032.1 2003-272 .' 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 III 27 III 28 WHEREAS, both the City and the Water District qualify as a "lead agency" under CEQA (specifically, Public Resources Code Section 21067) and the CEQA Guidelines (Sections 15050 to 15053, inclusive) for the purposes of preparing and certifying the EIR; and WHEREAS, where two or more agencies qualify as a lead agency, CEQA Guidelines Section 15051 (d) allows those agencies to enter into an agreement to provide for cooperative efforts; and WHEREAS, the City and the Water district have determined that a cooperative effort will facilitate an efficient and complete environmental review of the IP A' s project which is in the best interest of all parties and the public; and WHEREAS, the Parties desire to act as Co-Lead Agencies with respect to the preparation, review and certification of the EIR, as permitted by the CEQA Guidelines Section 15051 (d), and shall share in the costs of the preparation of the EIR, as more fully set forth in the Co-Lead Agency Agreement between the parties; and WHEREAS, it is appropriate for the Mayor and Common Council to take action with respect to entering into a Co-Lead Agency Agreement with the Water District. NOW, THEREFORE, BE IT RESOLVED, DETERMINED AND ORDERED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO, AS FOLLOWS: Section I, The above recitals are true and correct and incorporated herein by reference, Section 2. The Mayor and Common Council hereby approve the City entering into a cooperative agreement with the Water District relative to the preparation of an EIR on behalf of the IP A. Section 3, The Mayor and Common Council hereby approve the Co-Lead Agency Agreement (attached and incorporated herein as Exhibit "A") and authorize and direct the Mayor to execute the Co-Lead Agency Agreement and any other documents required to facilitate the cooperation between the City and the Water District relative to the preparation of an EIR for the IP A, as approved by the City Attorney. III 48 0330-8032.1 2003-272 1 A RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF 2 THE CITY OF SAN BERNARDINO APPROVING THAT CERTAIN CO- LEAD AGENCY AGREEMENT BY AND BETWEEN THE CITY OF SAN 3 BERNARDINO AND THE SAN BERNARDINO VALLEY MUNICIPAL WATER DISTRICT RELATING TO THE NORTH LAKE AND SOUTH 4 LAKE PROJECTS WITHIN THE CITY OF SAN BERNARDINO 5 6 7 8 9 10 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a j t. reg, meeting thereof, held on the 6th day of October ,2003, by the following vote, to wit 11 12 13 14 15 16 17 18 19 20 21 22 23 Council Members; AYES NAYS ABSTAIN ABSENT ESTRADA X LONGVILLE X - MCGINNIS X DERRY X SUAREZ X ANDERSON X MCCAMMACK X - ~_ 6. Cl-tuJ>~ 'fl'TU The foregoing Resolution IS hereby approved this October ,2003, day of 4"?f-<1h' ~<>-r- Betly Dean Anderson, Mayor Pro Tern City of San Bernardino Approved as tD 24 Form and legal content 25 26 27 28 JAMES F, PENMAN, City Attorney By: L 7-./~ {J 48 0330-8032.1 , . 2003-272 Co-Lead Agency Agreement City of San Bernardino and San Bernardino Valley Municipal Water District North Lake and South Lake Projects Within the City of San Bernardino This Co-Lead Agency Agreement ("Agreement") is entered into and effective this 6th day of October 2003, by and between the City of San Bernardino, California (the "City"), and the San Bernardino Valley Municipal Water District (the "District"). The foregoing parties are each hereafter referred to as a "Party" and collectively are referred to as the "Parties". Recitals A. Each of the Parties is a "local agency" as defined by California Public Resources Code Section 21062 for purposes of the California Environmental Quality Act of 1972, as amended ("CEQA"), Public Resources Code Section 21000, et ~., and its implementing regulations found at Title 17, California Code of Regulations Section 15000, et ~. ("CEQA Guidelines") . B. The Parties are members, together with the Inland Valley Development Agency, of the San Bernardino Regional Water Resources Authority (the "JPA") which was formed in 1998 by the Parties together with the Inland Valley Development Agency for the purposes of determining the feasibility of undertaking one or more water resource and lake proj ects within portions of the City. The JPA has stated its intent to file an application to the City in its role as the "Applicant" for the purposes of undertaking a CEQA review and the preparation of an Environmental Impact Report ("EIR") as required by CEQA and the CEQA Guidelines under the circumstances. C. The Application may include the request for General Plan Amendments, Development Code Amendments, and other modifications in the City's Circulation Element of the General Plan to accommodate the land assembly and the construction by the District of a water reservoir of not CO-LEAD Agency9-25-039/25/03 tjs Exhibit "A" 2003-272 less than 35 acres in surface area generally located within the area bounded by "E" Street, Ninth Street, Baseline Avenue and the I -215 Freeway. The JPA further may request that the City consider appropriate General Plan Amendments and Development Code Amendments to accommodate further residential, commercial and retail development and other smaller bodies of water and water features in the area generally referred to as Central City South, bounded by Mill Street, "E" Street, Rialto Street and the 1-215 Freeway. D. Either of the Parties may serve as lead agency pursuant to CEQA and the CEQA Guidelines, and the Parties are of the view and opinion that both Parties should serve as the Lead Agencies for the purposes of complying with CEQA in connection with the Application to be filed by the JPA. E. The Parties have decided jointly to prepare an E1R in connection with the Application of the JPA. F. Each of the Parties qualifies as a "lead agency" under CEQA (specifically, Public Resources Code Section 21067) and the CEQA Guidelines (Sections 15050 to 15053, inclusive) for the purposes of preparing and certifying the E1R. Where two or more agencies qualify as a lead agency, CEQA Guidelines Section 15051 (d) allows those agencies to enter into an agreement to provide for cooperative efforts. G. The Parties have each determined that it is beneficial to cooperate with each other regarding the preparation and review of the E1R and that a cooperative effort best meets the needs of the Parties and the public and will facilitate an efficient and complete environmental review of the potential impacts of the Application and associated other activities by the Parties relating to the land assembly and construction of the water reservoir and other water features, the management, storage and delivery of the water to be utilized and the other economic development activities to be undertaken pursuant to the Application (collectively, the "Project") Accordingly, the Parties desire to act as Co-Lead Agencies with respect to the preparation, review and certification of the E1R, as permitted by the CEQA Guidelines Section 15051(d), and shall share in the costs of the preparation of the E1R, as more fully set forth in this Agreement. 9/25/03 CO-LEAD Agency9-25-03 tjs 2 2003-272 Agreements Section 1. Purposes. The purposes of this Agreement are to set forth the Parties respective responsibilities and the scope of cooperation as Co- Lead Agencies and the procedures to be followed in fulfilling their joint obligations as Lead Agencies in connection with the preparation and certification of the EIR and the possible approval of the Project. Section 2. Designation of Co-Lead Aqencies, Pursuant to CEQA Guidelines Section 15051 (d), the Parties shall act as Co-Lead Agencies under CEQA for the preparation, review and certification of the EIR, as provided herein. Section 3. Duties of Co-Lead Agencies. The Parties shall jointly be responsible for determining the method of compliance and for ensuring compliance with all requirements of CEQA and the CEQA Guidelines. The Parties shall coopera te and consult with each other in performing the duties of a Lead Agency under CEQA and the CEQA Guidelines in connection with the preparation, review and certification of the EIR and approval of the Project, including, but not limited to, preparation of the Notice of Preparation; consultation with Responsible Parties, interested parties and the public; issuance of any scoping notices and conducting a scoping process, if any; determination of the scope and preparation of the Draft EIR; reviewing and responding to comments on the Draft EIR; preparation of a Notice of Completion; issuance of a Final EIR; certification of the Final EIR, preparation and filing of a Notice of Determination, and approval of the Project. Section 4. Defense of Litigation Concerning the EIR. In the event litigation is brought under Public Resources Code Section 21167, 21168, 21168.5, or otherwise, challenging the validity, in whole or in part, of the EIR, or the procedures followed in the preparation, review and/or certification of the EIR, the Parties, as Co-Lead Agencies, shall rely upon the JPA to defend the EIR and its certification in any such litigation pursuant to the commitments to be made by the JPA in the CO-LEAD Agency9-25-039/25/03 tjs 3 2003-272 Application. Neither Party shall compromise or settle any such litigation without first obtaining the written consent of the other Party. Neither Party shall oppose a motion by the other Party to intervene in any such litigation in the event that such intervention is required. It is the intent of the Parties that the JPA as the applicant for the CEQA "proj ect" will indemnify, defend and hold harmless and reimburse each Party for all expenses incurred in connection with any such action. Each Party shall initially pay their own costs in such action if named as a party to such action, and the JPA shall be solely responsible for the payment of its costs in the defense of any such litigation. Section 5. Certification of EIR by Both Co-Lead Agencies. Each Party shall individually review and determine whether to certify the EIR pursuant to CEQA Guidelines Section 15090. The certification of the EIR shall not be effective, and a Notice of Determination shall not be filed, until both Parties have separately certified the EIR through their independent official actions of the elected officials constituting their governing bodies and approve any required mitigation monitoring program and/or statements of overriding consideration as a part of such EIR and the implementation thereof. The Parties shall cooperate with each other in connection with the preparation of joint findings relating to the EIR, as determined to be appropriate by the Parties under the circumstances, including the consideration and adoption of such findings as may be required to approve the mitigation monitoring program or any statements of overriding consideration, if any. Section 6. Contracting and Cost Sharing. A. The Parties through the JPA have selected RBF Consultants, Inc., as the consul tant (the "Consultant") pursuant to an independent contract approved and executed by and between the Consultant and the JPA to prepare the EIR. The Parties acknowledge the terms and provisions of the Consultant agreement with the JPA and the "not to exceed" professional services dollar amount limitation, among other provisions contained therein ("Consultant Contract"). The Parties have reviewed and approved the Consultant Contract and the "not to exceed" dollar amount limitation and other material terms of the Consultant Contract as deemed relevant. 9/25/03 CO-LEAD Agency9-25-03 tjs 4 2003-272 B. The Parties shall jointly work with the Consultant, as needed, and the JPA shall be responsible for the day-to-day supervision of the Consultant as provided below. Each Party shall provide the Consultant timely access to data and information in its possession relevant to the ErR, and each Party shall inform the other Party of any information or data so provided to the Consultant. Each Party shall inform the Consultant of all of the Party's respective internal regulations and procedures applicable to the environmental review process on the ErR, and shall promptly advise the Consultant regarding the Consultant's compliance with such regulations and procedures. Each Party shall promptly notify the other Party and the Consultant regarding comments received from State or federal agencies, interested groups or organizations or members of the general public that are relevant to the CEQA review process. C. Utilizing the services of the Consultant, the Parties shall require the JPA to prepare the ErR with sufficient scope to address environmental issues raised in connection with the Project and to satisfy all CEQA requirements. The Parties, in consultation with the Consultant and the JPA, shall jointly decide upon the public scoping process, if any, including the time and locations of any public scoping meetings or any other public hearings. After completion of the scoping process, the Parties shall jointly work with the Consultant and the JPA to refine the organization, scope and content of the Draft ErR. After receipt of public comments on the Draft ErR, the Parties shall jointly work with the Consultant to prepare appropriate responses to those public comments, to publish those responses in the Final ErR, and to prepare all appropriate findings and other documentation to allow the Parties to certify the ErR and approve the Project. D. Each Party shall independently review, timely comment upon, exercise their independent judgment and determine the adequacy of, the Consultant's work, to ensure the completeness, accuracy and objectivity of the ErR, and components or portions thereof, and the satisfaction of all requirements of CEQA and the CEQA Guidelines. Upon the request of either Party, the Parties shall promptly meet to discuss any disputes that may arise regarding the Consul tant' s work. The Parties shall cooperate with each CO-LEAD Agency9-25-039/25/03 tjs 5 2003-272 other, acting diligently and in good faith, to determine how to correct any deficiencies in the Consultant's work. Each Party shall have the right of access to all information, reports, data, studies and other materials used or produced by the Consultant, in addition to all documents included in the administrative record file for the EIR. E. The Consultant Contract includes provisions for the strict accountabili ty of funds as provided by the Parties to the JPA, and the Parties shall ensure that the JPA implements cost accounting procedures with respect to all such funds. Each Party shall have the right to inspect and audit the books and records of the Consultant and the JPA relating to costs billed pursuant to the Consultant Contract. The Consultant's invoices will be sent to the Management Committee of the JPA for approval for payment in the normal course of business as previously authorized by the JPA. The Parties will co-ordinate payments of cash advances to the JPA not to exceed the dollar amount previously committed by the Parties as may be needed from time-to-time to allow for the full performance of the Consultant Contract. Other than the payment of the Consultant's costs which have been provided for pursuant to a separate loan agreement between the Parties and the JPA, each Party shall be responsible for the costs and expenses it incurs in connection with this Agreement and the preparation, review and certification of the EIR. Section 7. Contact Persons. A. The primary point of contact for each Party's performance of its respective responsibilities pursuant to this Agreement is listed below. Each contact person or their designee shall be responsible and authorized to manage and implement that Party's performance of its responsibilities, including distributing materials to staff, outside counsel and consultants. However, final decisions by each Party shall be made by its governing board or other officer for the appropriate entity duly authorized to do so pursuant to the governing documents of such Party. Each Party may change its designated representative from time-to-time by written notice to the other Party. The initial representatives are as follows: 9/25/03 CO-LEAD Agency9-25-03 tjs 6 2003-272 City: Tim Cook, Assistant to the Mayor - 909-384-5133 District: Robert L. Reiter, General Manager - 909-387-9222 B. The representa ti ve of each Party shall: (1) serve as the primary contact for each respective Party on all matters relating to the preparation and completion of the EIR and compliance with this Agreement; (2) devote such time and effort to coordinate and review the efforts of the Parties and the Consultant with those efforts of the JPA to reasonably maintain the Schedule (as described in Section 8 below) and to ensure preparation of a thorough and legally sufficient EIR; (3) attend meetings, both public and otherwise, relevant to the development and preparation of the EIR; and (4) ensure overall coordination of effort and exchange of data, information and recommendations. Section 8. Scheduling. The Parties shall cooperate and take all reasonable steps necessary to complete the issuance of a Draft EIR for public review by January 31, 2004, and to consider the certification of a Final EIR and approval of the Project by May 1, 2004. The Parties shall duly notice public hearings as may later be determined for the consideration of the certification of the final EIR within a reasonable period of time after the JPA project manager provides written notice to the Parties stating that adequate information is available, including comments and responses to the Draft EIR, for the Parties to consider the certification of the final EIR. Section 9. Records. The Parties shall keep and maintain the official administrative record file for the EIR and shall be responsible for ensuring that the file includes all materials required for CEQA compliance. The Parties shall each be responsible for providing the other Party with copies of all materials required to be included in the file for CEQA compliance which relate to that Party's involvement with the Project. Section 10. Right of Withdrawal. Either Agreement by other Party. Party shall have providing written Withdrawal of the right notice of a Party to withdraw from this such withdrawal to the shall terminate this CO-LEAD Agency9-25-039/25/03 tjs 7 2003-272 Agreement pursuant to Section 11 hereof; provided, however, that all rights of either Party to seek repayment of any loans of other advances of funds from such Party to the JPA shall not be affected by any such termination of this Agreement, and any such loans or other advances of funds shall be repaid in the manner as previously agreed between the Parties and the JPA. Section 11. Termination and Amendment. This Agreement may be terminated upon the expiration of the statute of limitations for filing suit after final certification of the EIR by each Party, or, if litigation is filed, upon final judgment or settlement of any litigation, including appeals, regarding the EIR. I f any Party gives notice of withdrawal pursuant to Section 10, that action shall terminate this Agreement and require payment of any amounts due hereunder, if any. In the event the Parties terminate this Agreement after the final EIR has been certified and approved by the Parties, together with the approval of any mitigation measures or statement of overriding consideration, the Parties shall then be responsible to take such necessary action on their own behalf as may be required under the circumstances and to cooperate with the other Party when reasonably required. Section 12. Reservations. A. This Agreement is an agreement for the limited purpose described in Section 1, and nothing herein shall be construed to extend the purpose or the rights and authority of any Party beyond such limited purpose. The Parties understand and agree that by entering into this Agreement, they are not forming a j oint venture or partnership, or contractually agreeing to delegate or modify their respective responsibilities under applicable law as a lead agency. B. Each Party shall independently evaluate the EIR for legal sufficiency prior to any approval, certification or final adoption of the EIR. Each Party shall make its own conclusion as to whether the EIR meets the standards for an adequate environmental assessment based upon CEQA, the CEQA Guidelines and applicable law. Section 13. General Provisions. 9/25/03 CO-LEAD Agency9-25-03 tjs 8 2003-272 A. Jurisdiction and Venue. litigation involving the shall be brought in the County. The Parties construction Superior Court agree of this of San that any Agreement Bernardino B. Authority. Each signatory of this Agreement represents that he or she is authorized to execute this Agreement on behalf of one of the Parties to this Agreement. Each Party represents that it has legal authority to enter into this Agreement and to perform all obligations under this Agreement. C. Amendment. This Agreement may be amended or modified only by a written instrument executed by each of the Parties to this Agreement. D. Headings. The paragraph headings used in this Agreement are intended for convenience only and shall not be used in interpreting this Agreement or in determining any of the rights or obligations of the Parties to this Agreement. E. Wai ver. No waiver of any violation or breach of this Agreement shall be considered to be a waiver or breach of any other violation or breach of this Agreement, and forbearance to enforce one or more of the remedies provided in this Agreement shall not be deemed to be a waiver of that remedy. F. Attorneys' Fees and Costs. The prevailing Party in any litigation or other action to enforce or interpret this Agreement shall be entitled to reasonable attorneys' fees, expert witnesses' fees, costs of suit, and other and necessary disbursements in addition to any other relief. Such right of recovery of attorneys' fees shall also include the costs, fees and expenses of the Office of the City Attorney of the City, to the extent applicable, and general counsel to the District, to the extent applicable. G. Entire Agreement. This Agreement constitutes the entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes any prior oral or written agreement, understanding, or representation relating to the subject matter of this Agreement. CO-LEAD Agency9-25-039/25/03 tjs 9 2003-272 H. Successors and Assigns. This Agreement shall be and inure to the benefit of the successors and the respective Parties to this Agreement. No assign its interests in or obligations under this without the written consent of the other Party. binding on assigns of Party may Agreement 1. Partial Invalidity. If, after the date of execution of this Agreement, any provision of this Agreement is held to be illegal, invalid, or unenforceable under present or future laws effective during the term of this Agreement, such provision shall be fully severable. However, in lieu thereof, there shall be added a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable. J. Necessary Actions. Each Party agrees to deliver additional documents and instruments any additional actions as may be reasonably carry out the purposes of this Agreement. execute and and to take required to K. Compliance with Law. In performing their respective obligations under this Agreement, the Parties shall endeavor to comply with and conform to all applicable laws, rules, regulations and ordinances. L. Third Party Beneficiaries. This Agreement shall not create any right or interest in any non-Party or in any member of the public as a third party beneficiary. M. Counterparts. This more counterparts, original. Agreement each of may be executed which shall be in one deemed or an N. Notices. All notices, requests, demands or other communications required or permitted under this Agreement shall be in writing unless provided otherwise in this Agreement and shall be deemed to have been duly given and recei ved on: (i) the date of service if served personally or served by facsimile transmission on the Party to whom notice is to be given at the appropriate address as provided below; (ii) on the first business day after mailing, if mailed by Federal Express, U.S. Express Mail, or other similar overnight courier service, postage prepaid, and address as provided below, or (iii) on the third day after mailing if mailed to the Party to whom 9/25/03 CO-LEAD Agency9-25-03 tjs 10 2003-272 notice is to be given by first class mail, registered or certified, postage prepaid, addressed as follows: To City: Tim Cook, Assistant to the Mayor, Special Projects City of San Bernardino 300 North OD" Street San Bernardino, California 92418 Facsimile: (909) 384-5133 To District: If via first class mail: General Manager San Bernardino Valley Municipal Water District P.O. Box 5906 San Bernardino, California 92412-5906 Facsimile: (909) 387-9247 If via overnight courier service: General Manager San Bernardino Valley Municipal Water District 1350 South OE" Street San Bernardino. California 92408 Phone: (909) 387-9200 Either party may change its address for notice purposes, or designate additional addresses for notice purposes, by gi ving the other Party notice of the new address in the manner set forth above. CO-LEAD Agency9-25-039/25/03 tjs 11 ~ 2003-272 . IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the date first set forth above. CITY OF SAN BERNARDINO B~''''':' Ma or Pro Q RL<'> Tern ATTEST: By: ~ kz, ~L-- Ci Y Clerk APPROVED AS TO FORM AND LEGAL CONTENT: L WATER DISTRICT By: Title: BY:~ Title: r-~ 9/25/03 CO-LEAD Agency9-25-03 tjs 12