HomeMy WebLinkAboutagenda updatesCITY OF SAN BERNARDINO
CITY MANAGER'S OFFICE
MEMORANDUM
TO: Honorable Mayor and City Council Members
FROM: Andrea M. Miller, City Manager
Andrea M. Miller, City Manager
290 North "D" Street
San Bernardino, CA 92418-0001
(909) 384-5122
SUBJECT: UPDATE - Item #18 Proposed Staffing Level for the Office of the Mayor
DATE: January 2, 2019
CC: City Clerk, City Attorney
Enclosed you will find an updated staff report and attachments associated with item #18
on the January 2, 2019 Council Agenda pertaining to the proposed staffing level for the
Office of the Mayor. The updated staff report and associated attachments include
changes in the fiscal impact projections reflecting the costs associated with adding six new
positions.
January 2, 2019 City of San Bernardino Agenda Item #18
1. Updated Staff Report
2. Attachment 1 — Mayor's Office Staffing Analysis
3. Attachment 2 — 10 -Year Historical Data of Mayor's Office Staffing
City of San Bernardino
Request for Council Action
Date: January 2, 2019
To: Honorable Mayor and City Council Members
Staff Report
From: Andrea M. Miller, City Manager
On Behalf of Mayor John Valdivia
Subject: Proposed Staffing Level for the Office of the Mayor
Recommendation
Review, discuss and consider proposed increases in the staffing level within the
Mayor's Office to support the operational needs as identified by the Mayor; and
Authorize the Director of Finance or designee to amend the FY 2018/19 Adopted
Budget by appropriating up to $254,131 from the General Fund reserve into the various
affected salary accounts to establish 6 new positions in the Office of the Mayor. In future
years the costs, which are projected to be up to $508,262, would be recommended as
part of the annual budget.
Background
Mayor Valdivia has identified changes in the organizational structure within the Mayor's
Office to provide the personnel needed to support the objectives that have been set
forth by the Mayor. As such, he requested that I prepare the analysis and necessary
adjustments to the annual operating budget to effectuate this change.
Discussion
The FY 2018119 Adopted Budget for the Mayor's Office includes funding in the amount
of $305,692 for three (3) full-time positions. These positions include:
➢ One (1) Chief of Staff (U);
➢ One (1) Assistant to the Mayor II (U); and
➢ One (1) Assistant to the Mayor III (U).
In order for Mayor Valdivia to achieve his objectives, he is proposing to fill the three
existing positions and add six new positions which would result the following for the
Mayor's Office:
➢ One (1) Chief of Staff (U);
➢ One (1) Executive Assistant to the Mayor (U)*;
➢ One (1) Assistant to the Mayor III (U);
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➢ One (1) Assistant to the Mayor II (U);
➢ Four (4) Assistant to the Mayor I (U); and
➢ One (1) Senior Customer Service Representative (U), to serve as front office
receptionist.
The Executive Assistant to Mayor (U) position will replace the existing budgeted Assistant to the
Mayor 111 (U) position. The proposed position is less than the current budgeted position.
Difference between the two positions is approximately $19,300 per year.
The proposed six (6) additional positions would be assigned the duties as
follows:
➢ Assistant to the Mayor 1(4 positions)
This position will serve as liaison between the Mayor and constituents, district
organizations, local governments, and state and federal agencies. This
classification will monitor pertinent local issues, especially those involving local
agencies, and keep the Mayor and staff up to date on pending matters.
➢ Assistant to the Mayor III (U) (1 position)
This position will serve as the communications director for the mayor to assist in
his role as the chief spokesman for the city.
➢ Senior Customer Service Representative (U) (1 position)
This position will serve to greet visitors to the office; answer, screen and transfer
telephone calls; refer calls or requests for services to the appropriate
departments and agencies; and assist in preparing correspondence and other
duties as needed in support of the Mayor's Office.
Budgetary Considerations
At the December 19, 2018 City Council Meeting, members of the City Council identified
the need for investment in a General Plan Update along with additional planning staff,
trained Code Enforcement Officers, street repair and improvements, and City property
maintenance improvements.
As the City Manager, it is my obligation to ensure the Mayor and City Council have the
information needed to fully evaluate and contemplate the potential impacts of policy
decisions. Approval of the proposed increase in staffing in the Mayor's Office will have
an impact on the City's current budget, as well as its long term financial planning.
As we look towards the next fiscal year, the preliminary estimate indicates that there is a
projected deficit of over $2 Million. There are needs throughout the organization that
have been identified that cannot be met at this time due to budgetary constraints.
Those that have the most impact at this time include the estimated $2 to $3 million cost
related to the update of the General Plan.
Additionally, the Community and Economic Development Department is operating in an
increasingly complex and litigious regulatory environment. The current staffing level is
inadequate to assure basic compliance. As the City builds up, the infill development
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process will be considerably more complex as every new project directly affects existing
businesses and the conditions in existing residential neighborhoods.
In order to be in a position to move the City in a positive direction there needs to be
adequate staff in each division including additional planners, plan check positions, and
staff to support in land development and economic development. In addition to the City
Prosecutor position, additional Code Enforcement field personnel are needed. The
Animal Control program is operating with limited resources, and as the City continues to
invest in its infrastructure, increased Public Works staffing is needed to address the
maintenance and facility issues. These needs do not include the significant investment
that is needed in the Police Department nor the more than $100 Million in deferred
maintenance costs identified in last year's budget process.
Financial Impact
The additional cost of the six (6) new positions in the Mayor's Office would be between
$386,853 and $508,262 annually (depending on starting salary placement). Assuming
the new positions will be filled as early as January 2019, the additional cost in FY
2018/19 is nearly $254,131 (6 months of top step salary and benefits).
The proposed additional cost of the new positions in the Mayor's Office over the next 10
years is estimated to be more than $4.8 million. Additional information related to the
impact on the City's 10 -year financial plan and historic staffing levels in the Mayor's
Office over the last 10 years will be presented at this evening's meeting.
2018-2019 Goals and Objectives
The proposed changes to the Mayor's Office align with Goal No. 3: Create. Maintain
and Grow Jobs and Economic Value in the Citv, as the perceptions of the City are
directly related to our ability to encourage investment in and attract economic
development to the City and Goal No. 7: Pursue City Goals and Objectives by working
with other a-gencies such as: Federal, State, and regional governments to ensure San
Bernardino receives its fair share of resources by maintaining close working
relationships with other governmental agencies.
Conclusion
It is recommended the City Council review, discuss and consider the requested staffing
changes to the Mayor's Office and amend the FY 2018/19 Adopted Budget accordingly.
Attachment 1 Mayor's Staffing Analysis
Attachment 2 10 -Year Historical Data on Mayor's Office Staffing
Ward: All
Synopsis of Previous Council Actions: N/A
1/2/2019 4:08 PM
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Execution Copy
I Settlement Agreement
2
3 This Settlement Agreement ("Agreement") is entered into and effective this 21st day of
4 November, 2017 by and among the City of San Bernardino ("City'), the City of San Bernardino
5 Municipal Water Department ("SB Water"), East Valley 'Water District ("East Valley") and San
6 Bernardino Valley Municipal Water District ("Valley District'). The City, East Valley and
7 Valley District are each sometimes referred to herein as a "Party" and are collectively referred
8 to herein as the "Parties."
9
10 Recitals
11
12 A. On March 15, 2016, Valley District certified the Final Environmental Impact Report
13 ("SNRC EIIt") under the provisions of the Califomia Environmental Quality Act
14 ("CEQA' for the Sterling Natural Resource Project ("SNRC Project") and approved
15 the SNRC Project.
16
17 B. On April 14, 2016, the City filed suit (the "CEQA Lawsuit') challenging the validity of
18 Valley District's certification of the SNRC EIR as violating the provisions of CEQA.
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20 C. On June 1, 2016, the City filed a second lawsuit (the "LAFCo Lawsuit') challenging
21 East Valley's actions in connection with the SNRC Project and alleging such actions
22 violated the Cortese -Knox -Hertzberg Act ("LAFCo Law"). Valley District and East
23 Valley filed a cross-complaint in that action.
24
25 D. On March 7, 2017, SB Water certified the Final Environmental Impact Report ("CWF
26 EIW) under the provisions of CEQA for the Clean Water Factory Project ("CWF
27 Project") and approved the CWF Project.
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29 E. On June 6, 2017, the Superior Court for the County of San Diego entered judgment in
30 favor of Valley District and East Valley in connection with the CEQA Lawsuit. The City
31 has filed a timely appeal of that decision.
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33 F. By means of tolling agreements and stipulations the Parties have: (i) tolled the dates for
34 filing the appendix on appeal and briefs in CEQA Lawsuit in the Court of Appeal, (ii)
35 tolled all discovery and the hearing on the City's motion for a writ of mandate in the
36 LAFCo Lawsuit (including discovery undertaken in connection with the cross-complaint
37 filed by Valley District and East Valley), (iii) tolled the deadline for the City to file a
38 motion to tax costs in the CEQA Lawsuit, and (iv) tolled the statute of limitations on
39 potential legal challenges by East Valley and Valley District to the CWF Project.
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41 G. The Parties now wish to enter into a comprehensive settlement that will accomplish a
42 number of different purposes, all of which are of equal importance.
Settlement Agreement
City of San Bernardino, SB Water, East Valley and Valley District
November 2017
Page 1 of 18
17021973
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1507197.3
Execution Copy
® The Parties wish to enter into arrangements that will allow East Valley and Valley
District to construct and operate the SNRC Project and that will allow the City to
construct and operate the CWF Project.
• The Parties wish to enter into arrangements that will ensure that the SNRC Project
and the CWF Project are operated in a manner that is consistent with the recovery
of threatened and endangered fish populations in the Santa Ana River that may
depend on the discharge of treated wastewater into the Santa Ana River.
e The Parties wish to enter into arrangements that will replenish the San Bernardino
Basin Area ("SBBAI and thereby enhance water supply reliability for their
respective ratepayers.
• The Parties wish to enter into arrangements that will allow East Valley to provide
wastewater treatment and disposal services to its ratepayers in compliance with
the LAFCo Law, and without adversely affecting the ratepayers within the City.
c The Parties wish to further enhance water supply reliability (and thereby lessen
the demands for the extraction of groundwater from the SBBA) by engaging in a
number of water efficient landscape improvements located within the City.
• The Parties wish to conclude all of the foregoing litigation on a mutually
agreeable basis and move on from the conflict associated with litigation to
collaborative efforts that will best serve the interests of their respective ratepayers.
The Parties wish to memorialize their mutual agreements and understandings by means of
this Agreement.
Agreements
Construction and Operation of Facilities
a. Status of Existing JPA Agreement. At present, the City provides wastewater
treatment and disposal services to East Vallcy pursuant to a Joint Powers
Authority agreement dated January 7, 1958, as amended most recently in April
1984 (",IiPA Agreement"}. The Parties intend to continue to operate under the
terms of the JPA Agreement solely as it pertains to wastewater treatment and
disposal services until termination of the JPA Agreement as provided for in
subparagraph 1(b) below. Not later than ninety (90) days after the date upon
which the San Bernardino Local Agency Formation Commission ("LAFCo")
may approve the activation of East Valley's latent authority for wastewater
Settlement Agreement
City of San Bernardino, SB Water, East Valley and Valley District
November 2017
Page 2 of 18
Execution Copy
83 treatment and disposal services, all remaining JPA obligations imposed upon the
84 Parties including, but not limited to, East Valley's obligation to collect connection
85 fees for the benefit of the City and the expansion fees described in section 3 (c) of
86 this Agreement shall terminate. The Parties shall, within one hundred eighty
87 0 80) days of the execution of this Agreement, agree upon amendments to the
88 JPA Agreement to effectuate this Agreement.
89 b. Termination of JPA Agreement. Prior to completion of the SNRC Project, East
90 Valley shall provide notice of anticipated completion to the other Parties and
91 identify a date, at least six (6) months in the future, when East Valley will begin
92 to provide wastewater treatment and disposal services to its customers. Upon
93 SNRC Project completion, East Valley shall provide notice of completion to all
94 Parties.
95 (1) The City shall, within thirty days of the date of East Valley's notice of
96 completion, provide the other Parties with final invoicing, consistent with
97 the City's prior invoicing practices, showing ail charges incurred or that
98 will be incurred for the operation of the City's facilities through the date
99 on which East Valley will provide wastewater treatment services.
100 (2) East Valley shall, within thirty (30) days of receiving the City's final
101 invoicing, either agree with that invoicing or begin the dispute resolution
102 process described in paragraph 6(b) below. Such disputes shall be limited
103 to invoice items that exceed one percent (1%) of the total invoiced
104 amount.
105 (3) The JPA Agreement shall terminate on the date that East Valley begins to
106 provide wastewater treatment services to its customers (the "Service
107 Date") notwithstanding any dispute among the parties relating to the
108 invoicing provided by the City. Such disputes will be addressed through
109 procedures described in paragraph 6(b) below.
110 c. SNRC Profect. The Parties agree to cooperate to enable East Valley and Valley
111 District to construct the SNRC Project and place that project into operation at the
112 earliest possible date, as follows:
113 (1) General Provisions
114 (a) The Parties agree that the SNRC Project will divcrt and treat all
115 wastewater flows that are generated within East Valley's service
116 area, which are currently approximately 6 million gallonstday, that
117 would have been treated by SB Water pursuant to the JPA
118 Agreement.
Settlement Agreement
City of San Bernardino, SB Water, East Valley and Valley District
November 2017
Page 3 of 18
1502197.3
Execution Copy
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(b) Upon execution of this Agreement, the City and SB Water shall
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send a letter to the State Water Resources Control Board
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supporting the use of State Revolving Fund ("SRIF") grant and
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loan fiords, at the lowest available rate of interest, to fund the
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SNRC Project. Such letter shall be approved in advance by East
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Valley. If requested by East Valley and/or Valley District,
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representatives of the City and/or SB Water shall participate in a
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teleconference with the State Water Resources Control Board or its
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staff to state that SRF grant or loan funds be issued to East Valley
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for the construction of the SNRC Project.
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(c) After execution of this Agreement and upon request of East Valley
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and/or Valley District, the City and/or SB Water shall provide
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similar letter(s) supporting the SNRC Project to local, state or
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federal administrative or regulatory agencies, private financial
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institutions, or other entities with oversight or control over the
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SNRC Project or its financing.
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(2) East Trunk Sewer Line. The Parties shall negotiate and execute the
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appropriate legal instruments through which the City and SB Water shall
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convey by means of grant deed all right, title and interest in a 20,800
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linear foot portion of the East Trunk Sewer Line as shown on Exhibit A
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attached hereto, which is incorporated herein by reference, together with
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any associated appurtenances, easements, operating agreements and the
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like necessary for the safe operation of that portion of the East Trunk
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Sewer Line, to East Valley. Such conveyance shall become effective on
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the date upon which LAFCo may approve activation of East Valley's
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latent authority to provide wastewater treatment services. This portion of
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the East Trunk Sewer Line is needed by East Valley so as to allow Hast
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Valley to collect and transport wastewater flows to the SNRC Project.
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The City, SB Water and East Valley shall cooperate in drawing up the
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necessary documentation and obtaining any regulatory permits for such
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transfer. All costs incurred by any Party associated with the conveyance
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and transfer of this portion of the East Trunk Sewer Line shall be the sole
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responsibility of East Valley, and Fast Valley shall reimburse the other
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Parties for any such costs incurred by them. After the date of the transfer,
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East Valley shall be responsible for all operation and maintenance costs
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associated with the portion of the East Trunk Sewer Line that has been
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transferred to East Valley from the City and SB Water.
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(3) Commingling/Exchange of Flows. East Valley, the City and SB Water
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further understand and agree that implementing the transfer of a portion of
Settlement Agreement
City of San Bernardino, SB Water, East Valley and Valley District
November 2017
Page 4 of 18
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Execution Copy
158 the East Trunk Sewer Line, both while the SNRC Project is being
159 constructed and after the SNRC Project commences operation, will require
160 an exchange/commingling of wastewater flows originating within the
161 service areas of the City/SB Water and East Valley in roughly equal
162 quantities so as to ensure the efficient operation of the regional wastewater
163 system and thereby avoid increasing the cost of wastewater treatment to
164 East Valley's ratepayers. The City/SB Water and East Valley agree that,
165 within one hundred eighty (180) days of the effective date of this
166 Agreement, they will enter into the necessary agreements for such
167 exchange/commingling of wastewater flows, and that they will cooperate
168 fully in obtaining any regulatory approvals needed for the transfer of the
169 portion of the East Trunk Sewer Line to East Valley. To the extent that
170 additional physical facilities are needed to accomplish the transfer, the
171 costs associated with the permitting, construction and operation of those
172 new physical facilities shall be the sole responsibility of East Valley, and
173 East Valley shall reimburse the other Parties for any such costs incurred
174 by them.
175 d. CWF Project. Ilie Parties agree to support the construction and operation of a
176 new recycled water plant project by the City (known as the "CWF Project").
177 (1) SB Water and Valley District hereby reaffirm their respective
178 commitments pursuant to the February 22, 2011 Memorandum of
179 Understanding ("MOU") that withdrew protests to Wastewater Change
180 Petition No. WWO059 for the CWF Project.
181 (2) After execution of this Agreement and upon request of the City, Valley
182 District and/or East Valley shall appear at public meetings to support the
183 CWF Project and/or take such other actions (including but not limited to
184 resolutions of their respective governing boards) to support the CWF
185 Project. After execution of this Agreement and upon request of the City or
186 SB Water, East Valley and/or Valley District shall provide similar letter(s)
187 supporting the CWF Project to local, state or federal administrative or
188 regulatory agencies, private financial institutions, or other entities with
189 oversight or control over the CWF Project or its financing.
190 (3) The Parties agree that the CWF Project will not be inconsistent with the
191 provisions of the Upper Santa Ana River Habitat Conservation Pian, if
192 such plan is approved by the United States Fish & Wildlife Service
193 ("USFWS,�.
194 (a) The City and Valley District, together with their partners under
195 said MOU, may seek to obtain the regulatory permits necessary for
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November 2017
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196
the CWF Project in advance of the completion of the Upper Santa
197
Ana River Habitat Conservation Plan, provided that the provisions
198
associated with the CWF Project are subsequently included in the
199
Upper Santa Ana River Habitat Conservation Plan.
200
(b) If the USFWS does not approve the Upper Santa Ana River
201
Habitat Conservation Plan by January 1, 2020, then the City and
202
Valley District may seek to obtain separate regulatory permits for
203
the CWF Project.
204
(4) After execution of this Agreement, after submittal of any SRF grant/loan
205
application for the CWF Project, and upon request of the City or SB
206
Water, Valley District and East Valley shall send a letter to the State
207
Water Resources Control Board supporting the use of SRF grant and loan
208
funds, at the lowest available rate of interest, to fund the CWF Project.
209
Such letter shall be approved in advance by the City or SB Water. if
210
requested by the City or SB Water, representatives of East Valley and/or
211
Valley District shall participate in a teleconference with the State Water
212
Resources Control Board or its staff to state that SRF grant or loan funds
213
be issued to the City or SB Water for the construction of the CWF Project.
214 C. Treatment and Management of Solids
215
(1) Prior to the Completion of the SNRC Project. Until the completion of the
216
SNRC Project, East Valley and City/SB Water will work cooperatively to
217
enable the City/SB Water to treat solids originating within East Valley's
218
service area in the same manner as at present. The Parties shall also work
219
cooperatively: (i) to develop cost-effective plans and specifications for any
220
additional pipelines or new equipment/facilities that may be necessary to
221
effectuate the solids handling agreement described in paragraph l(e)(2)
222
below; (ii) in the acquisition and construction of such equipmentffacilities;
223
and (iii) in securing any needed regulatory permits or approvals. East
224
Valley shall be responsible for all cost associated with such pipelines or
225
new equipment/facilities as may be determined in the agreement described
226
in paragraph 1(e)(2) below.
227
(2) After Completion of the SNRC Project. Within thirty (30) days of the
228
effective date of this Agreement, East Valley and the City/SB Water will
229
enter into negotiations for the handling of solids after the completion of
230
the SNRC Project, with the goal of entering into a definitive agreement for
231
the cost-effective handling of solids originating within East Valley's
232
service area by the City/SB Water no later than one hundred eighty (180)
233
days from the effective date of this Agreement.
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234 (a) The initial term of the solids handing agreement shall be for ten
235 (10) years, with two optional five (5) year renewal periods. The
236 solids handling agreement shall commence on the Service Date.
237 The solids handling agreement shall include an "evergreen" term
238 that provides that the agreement shall be renewed for subsequent
239 terms unless either party provides written notice of termination at
240 least two years before the termination of the then -current term.
241 (b) The solids handling agreement shall provide for a service charge to
242 be paid by East Valley to the City/SB Water, which charge shall be
243 set so as to enable the City/SB Water to recover the actual costs of
244 providing solids handling and treatment of the solids handling
245 process liquid product, together with reasonable overhead not to
246 exceed forty percent (40%) of the actual cost of service, provided
247 that overhead shall not be charged on electricity costs charged by a
248 third party utility provider and associated with the provision of
249 solids handling.
250 (c) In the event that the City/SB Water and East Valley are unable to
251 agree on the design, construction, or installation for the
252 equipment/facilities that would enable SB Water to continue to
253 provide solids handling services to East Valley after the Service
254 Date by one hundred eighty (180) days after the effective date of
255 this Agreement, East Valley shall, not later than thirty (30) days
256 after the Service Date and on the anniversary of the Service Date
257 thereafter for nine (9) years, pay SB Water the sum of seven
258 hundred thousand dollars ($700,000) each year, for a total payment
259 to SB Water of seven million dollars ($7,000,000). In the
260 alternative, and subject to the prior written consent of SB Water
261 and SB Water's concurrence on the value of the replenishment
262 water, East Valley may replenish the SBBA with water that has an
263 equivalent value as the payment to be made in any given year.
264 f. Installation of Water E,ficlent Landscaping. Not later than ninety -(90) days after
265 the date upon which LAFCo may approve the activation of East Valley's latent
266 authority for wastewater treatment and disposal services, East Valley shall pay
267 five hundred thousand dollars ($500,000) and Valley District shall agree to
268 reimburse the City for up to five hundred thousand dollars ($500,000) to SB
269 Water for the purpose of enabling SB Water to install water efficient landscape
270 improvements in areas to be determined by the City and SB Water. During that
271 same period of time, SB Water shall contribute an additional five hundred
272 thousand dollars ($500,000) to that account, to bring the total contributions to the
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November 2017
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273 account to one million five hundred thousand dollars ($1,500,000). The City and
274 SB Water, after consulting East Valley and Valley District, shall develop a plan
275 for the installation of water efficient landscape improvements using the $1.5
276 million, within one (l) year of the execution of this Agreement. The City and SB
277 Water shall install such water efficient landscape improvements within three (3)
278 years of the date of execution of this Agreement.
279 g. Replenishment of the SM. Beginning in the fiscal year of the Service Date or
280 fiscal year 2021/22, whichever is later, Valley District shall deliver to the City/SB
281 Water a total of thirty thousand (30,000) acre-feet of State Water Project Water, at
282 Valley District's sole cost, for direct diversion and/or groundwater replenishment
283 at the City/SB Water's direction. City/SB Water expects to use and Valley
284 District expects to deliver three thousand (3,000) acre-feet of such water each
285 year, but if Valley District is not able to deliver three thousand (3,000) acre-feet in
286 a given year, it shall use its best efforts to deliver the undelivered water in the
287 following fiscal years, provided that such water is available in any given year
288 pursuant to Valley District's contract with the California Department of Water
289 Resources. The unavailability of such water in any given year does not excuse
290 Valley District's overall obligation under this Agreement to deliver thirty
291 thousand (30,000) acre-feet of such water to the City/SB Water.
292 h. Upper Santa Ana River Habitat Conservation Plan and the CWF Project. Valley
293 District shall use its best efforts to develop, in conjunction with USFWS and
294 California Department of Fish and Wildlife ("C1D1! W ') (collectively, the
295 "Wildlife Agencies") and through the Wildlife Agencies' permitting processes, a
296 habitat conservation plan for the Upper Santa Ana River that provides for take
297 coverage for a new recycled water plant project on the part of the City/SB Water
298 that would reduce the current discharge of treated wastewater into the Santa Ana
299 River by five (5) million gallons/day.
300 (1) In the event that the final habitat conservation plan, or as provided in
301 paragraphs 1(d)(3) and 1(h) above, the Wildlife Agencies' permitting
302 processes, does not authorize the City/SB Water to reduce its discharge of
303 treated wastewater to the Santa Ana River by five (5) million gallons/day,
304 Valley District shall deliver to the City/SB Water up to three thousand
305 (3,000) acre-feet per year of State Water Project Water, at Valley
306 District's sole cost, for direct diversion and/or groundwater replenishment
307 at the City/SB Water's direction.
308 (2) The annual amount of such water delivered by Valley District will be the
309 difference between five (5) million gallons/day and the amount of treated
310 wastewater discharge that SB Water is allowed to reduce from its current
311 discharge amount. Valley District will provide this annual amount until
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November 2017
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312
the City/SB Water can reduce its discharge by five (5) million gallons per
313
day from its current discharge amount for its recycled water project,
314
provided that prior to the construction of the City/SB Water's new
315
recycled water plant, the City/SB Water has installed and is properly
316
maintaining automatic back-up power for the RIXES Well
317
Rehabilitation/Santa Ana Sucker Habitat Maintenance/Restoration Project
318
at the City/SB Water's wastewater treatment plant(s).
319
(3) The Parties agree and acknowledge thaf future growth within the service
320
areas of SB Water and East Valley may allow SB Water and East Valley
321
to increase the quantity of recycled water generated from wastewater
322
flows within their respective service areas. The Parties agree that they
323
will support increases in the quantity of recycled water as part of both the
324
SNRC Project and the CWF Project provided that the increase in recycled
325
water for either project is derived from growth within that Party's service
326
area and provided further that such increased use of recycled water does
327
not diminish the quantity of treated wastewater that will be discharged into
328
the Santa Ana River pursuant to the Upper Santa Ana River Habitat
329
Conservation Plan.
330 2. Application to San Bernardino County Local Agency Formation Commission to Activate
331 Wastewater Treatment Authority. Within 60 days of the execution of this Agreement,
332 East Valley shall begin the process to submit to LAFCo an application to activate its
333 latent wastewater treatment and disposal authority. East Valley agrees that it will pursue
334 the application to a final decision by LAFCo, either in favor of the activation of the latent
335 authority or to deny activation of that authority. At least 45 days prior to the submission
336 of the application, East Valley shall provide a draft of the proposed application to the
337 other Parties to this Agreement for review and comment. The provisions of the
338 application shall be consistent with the terms of this Agreement and shall fully comply
339 with all of the applicable requirements of LAFCo Law. No later than five (5) days after
340 the date on which East Valley submits the application to LAFCo, the City/SB Water and
341 Valley District shall submit letters supporting that application to LAFCo. The Parties
342 understand that East Valley will request that LAFCo expedite processing of the
343 application so that East Valley's latent wastewater treatment authority can be activated no
344 later than December 31, 2018. The City/SB Water and Valley District, upon request by
345 East Valley, shall appear at public meetings to support East Valley's application and/or
346 take such other actions (including but not limited to resolutions of their respective
347 governing boards) to support that application.
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November 2017
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348 3. Transfers of Property and Other Assets. The Parties will negotiate and execute definitive
349 agreements for the following transfers of property and assets, which will become
350 effective on the date that LAFCo approves the activation of East Valley's latent authority
351 to treat and dispose of wastewater.
352 a. The transfer, in fee title and without encumbrances or liens, from East Valley to
353 the City/SB Water of approximately 22 acres of land located at the intersection of
354 Sterling and 3'd Street (APNs 1192-231-01 and 1192-241-01), save for the
355 existing well portion of the property, as shown on Exhibit B, which is attached
356 hereto and incorporated herein by reference.
357 b. The transfer from the City/SB Water to East Valley of the balance of the East
358 Trunk Sewer Line Replacement Fund, which is currently estimated to be
359 approximately $8 million, which funds have been collected by the City/SB Water
360 from East Valley's ratepayers since 1984 for the purpose of expanding the
361 capacity of the East Trunk Sewer Line to meet the needs of future growth. Not
362 later than ninety (90) days after the date upon which LAFCo may approve the
363 activation of East Valley's latent authority for wastewater treatment and disposal
364 services, the East Trunk Sewer Line funds will no longer be collected by the
365 City/SB Water. East Valley shall use the transferred funds in compliance with all
366 applicable laws, including but not limited to Proposition 218.
367 C. The transfer under subparagraph 3(a) is made by East Valley to the City/SB
368 Water in consideration of the transfer from the City/SB Water to East Valley
369 under subparagraph 3(b).
370 4. Dismissal/Prevention of Litigation. The Parties agree that this Agreement represents a
371 comprehensive settlement of all current litigation between the Parties. Not later than ten
372 (10) days after the execution of this Agreement, the City shall dismiss its appeal in the
373 CEQA Lawsuit with prejudice, and the City, East Valley, and Valley District shall
374 dismiss their respective complaints in the LAFCo Lawsuit with prejudice. Valley District
375 and East Valley shall, also within ten (10) days after the execution of this Agreement,
376 withdraw their pending Bill of Costs filed in the CEQA Lawsuit, and all Parties shall bear
377 their own costs and fees incurred in said litigation. Valley District and East Valley agree
378 that they will not file any administrative or judicial challenges to the CWF Project.
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November 2017
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379 5. Indemnification
380 a. General Indemnification. Each Party shall indemnify, defend and hold harmless
381 each of the other Parties and their respective directors, officers, employees and
382 agents from and against all damages, liabilities, claims, actions, demands, costs
383 and expenses (including, but not limited to, costs of investigations, lawsuits and
384 any other proceedings whether in law or in equity, settlement costs, attorneys'
385 fees and costs), and penalties or violations of any kind, which arise out of result
386 from, or are related to the Party's performance of its obligations under this
387 Agreement.
388 b. Indemnification Procedures. Any Party that is an indemnified party (the
389 "Indemnified Party") that has a claim for indemnification against the other Party
390 (the "Indemnifying Party") under this Agreement, shall promptly notify the
391 Indemnifying Party in writing, provided however, that no delay on the part of the
392 Indemnified Party in notifying the Indemnifying Party shall relieve the
393 Indemnifying Party from any obligation unless (and then solely to the extent) the
394 Indemnifying Party is prejudiced. Further, the Indemnified Party shall promptly
395 notify the Indemnifying Party of the existence of any claim, demand, or other
396 matter to which the indemnification obligations would apply, and shall give the
397 Indemnifying Party a reasonable opportunity to defend the same at its own
398 expense and with counsel of its own selection, provided that the Indemnified
399 Party shall at all times also have the right to fully participate in the disputed
400 matter at its own expense. If the Indemnifying Party, within a reasonable time
401 after notice from the Indemnified Party, fails to defend a claim, demand or other
402 matter to which the indemnification obligations would apply, the Indemnified
403 Party shall have the right, but not the obligation, to undertake the defense of, and
404 to compromise or settle (exercising reasonable business judgment), the claim or
405 other matter, on behalf or for the account, and at the risk, of the Indemnifying
406 Party. If the claim is one that cannot by its nature be defended solely by the
407 Indemnifying Party, then the Indemnified Party shall make available all
408 information and assistance to the Indemnifying Party that the Indemnifying Party
409 may reasonably request.
410 6. Administration ofAgreement
411 a Books and Records Each Party shall have access to and the right to examine any
412 of the other Parties' pertinent books, documents, papers or other records
413 (including, without limitation, records contained on electronic media) relating to
414 the performance of that Party's obligations pursuant to this Agreement.
415 (1) Retention of Records; Preservation of Privilege. Each Party shall retain
416 all such books, documents, papers or other records to facilitate such
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November2017
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417 review in accordance with that Party's record retention policy. Access to
418 each Party's books and records shall be during normal business hours
419 only. Nothing in this paragraph shall be construed to operate as a waiver
420 of any applicable privileges.
421 (2) Outside Auditors. Any Party may, at any time and at its sole cost, hire an
422 auditor to examine the accounting for work performed pursuant to this
423 Agreement. The Parties may also agree to retain an independent auditor to
424 review the accounting for work performed pursuant to this Agreement.
425 The costs of such an auditor will be shared equally among the Parties.
426 b. Disputes. The Parties recognize that there may be disputes regarding the
427 obligations of the Parties or the interpretation of this Agreement. The Parties
428 agree that they may attempt to resolve disputes as follows:
429 (1) Statement Describing Alleged Violation or Interruption ofAgreement. A
430 Party alleging a violation or interruption of this Agreement (the
431 "Initiating Party") shall provide a written statement describing all facts
432 that it believes constitute a violation or interruption of this Agreement to
433 the Party alleged to have violated or interrupted the terms of this
434 Agreement (the "Responding Party").
435 (2) Response to Statement of Alleged Violation or Interruption. The
436 Responding Party shall have sixty (60) days from the date of the written
437 statement to prepare a written response to the allegation of a violation or
438 interruption of this Agreement and serve that response on the Initiating
439 Party or to cure the alleged violation or interruption to the ,reasonable
440 satisfaction of the Initiating Party. The Initiating Party and the
441 Responding Party shall then meet within thirty (30) days of the date of the
442 response to attempt to resolve the dispute amicably.
443 (3) Mediation of Dispute. If the Initiating Party and the Responding Party
444 cannot resolve the dispute within ninety (90) days of the date of the
445 written response, they shall engage a mediator, experienced in water -
446 related disputes, to attempt to resolve the dispute. Each Party shall ensure
447 that it is represented at the mediation by a Director. These representatives
448 of the Initiating Party and the Responding Party may consult with staff
4.49 and/or technical consultants during the mediation and such staff and/or
450 technical consultants may be present during the mediation. The costs of
451 the mediator shall be divided evenly between the Initiating Party and the
452 Responding Party or Parties.
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November 2017
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453
(4) Prior to Claims Under California Tort Claims Act. The Parties agree that
454
the procedure described in this paragraph 6(b) represents an effort to
455
resolve disputes without the need for a formal claim under the California
456
Tort Claims Act or other applicable law. The period of time for the
457
presentation of a claim by one Party against another shall be tolled for the
458
period from the date on which the Initiating Party files a written statement
459
until the date upon which the mediator renders a decision.
460
(5) Reservation of Rights. Nothing in this paragraph 6(b) shall require a Party
461
to comply with a decision of the mediator and, after the completion of the
462
mediation process described above, each Party shall retain and may
463
exercise at any time all legal and equitable rights and remedies it may
464
have to enforce the terms of this Agreement; provided, that prior to
465
commencing litigation, a Party shall provide at least five (5) calendar
466
days' written notice of its intent to sue to the other Party.
467 7, General Provisions.
468 a. Authority. Each signatory of this Agreement represents that s/he is authorized to
469 execute this Agreement on behalf of the Party for which s/he signs. Each Party
470 represents that it has legal authority to enter into this Agreement and to perform
471 all obligations under this Agreement.
472 b. Amendment. This Agreement may be amended or modified only by a written
473 instrument executed by each of the Parties to this Agreement.
474 C. Jurisdiction and venue. This Agreement shall be governed by and construed in
475 accordance with the laws of the State of California, except for its conflicts of law
476 rules. Any suit, action, or proceeding brought under the scope of this Agreement
477 shall be brought and maintained to the extent allowed by law in the County of San
478 Bernardino, California.
479 d. Headings. The paragraph headings used in this Agreement are intended for
480 convenience only and shall not be used in interpreting this Agreement or in
481 determining any of the rights or obligations of the Parties to this Agreement.
482 e. Construction and Interpretation. This Agreement has been arrived at through
483 negotiations and each Party has had a full and fair opportunity to revise the terms
484 of this Agreement. As a result, the normal rule of construction that any
485 ambiguities are to be resolved against the drafting Party shall not apply in the
486 construction or interpretation of this Agreement.
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November 2017
Page I3 of 18
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Execution Copy
487 f. Entire Agreement. This Agreement constitutes the entire agreement of the Parties
488 with respect to the subject matter of this Agreement and, save as expressly
489 provided in this Agreement, supersedes any prior oral or written agreement,
490 understanding, or representation relating to the subject matter of this Agreement.
491 g. Partial Invalidity. If, after the date of execution of this Agreement, any provision
492 of this Agreement is held to be illegal, invalid, or unenforceable under present or
493 future laws effective during the term of this Agreement, such provision shall be
494 fully severable. However, in lieu thereof, there shall be added a provision as
495 similar in terms to such illegal, invalid or unenforceable provision as may be
496 possible and be legal, valid and enforceable.
497 h. Successors and Assigns. This Agreement shall be binding on and inure to the
498 benefit of the successors and assigns of the respective Parties to this Agreement.
499 No Party may assign its interests in or obligations under this Agreement without
500 the written consent of the other Parties, which consent shall not be unreasonably
501 withheld or delayed_
502 i. Waivers. Waiver of any breach or default hereunder shall not constitute a
503 continuing waiver or a waiver of any subsequent breach either of the same or of
504 another provision of this Agreement and forbearance to enforce one or more of
505 the rights or remedies provided in this Agreement shall not be deemed to be a
506 waiver of that right or remedy.
507 j. Attorneys' Fees and Costs. The prevailing Party in any litigation or other action
508 to enforce or interpret this Agreement shall be entitled to reasonable attorneys'
509 fees, expert witnesses' fees, costs of suit, and other and necessary disbursements
510 in addition to any other relief deemed appropriate by a court of competent
511 jurisdiction.
512 k. Necessary Actions. Each Party agrees to execute and deliver additional
513 documents and instruments and to take any additional actions as may be
514 reasonably required to carry out the purposes of this Agreement.
515 1. Compliance with Lary. In performing their respective obligations under this
516 Agreement, the Parties shall comply with and conform to all applicable laws,
517 rules, regulations and ordinances.
518 M. Third Party Beneficiaries. This Agreement shall not create any right or interest in
519 any non -Party or in any member of the public as a third party beneficiary.
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November 2017
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520 n. Counterparts. This Agreement may be executed in one or more counterparts,
521 each of which shall be deemed to be an original, but all of which together shall
522 constitute but one and the same instrument.
523 0. Notices. All notices, requests, demands or other communications required or
524 permitted under this Agreement shall be in writing unless provided otherwise in
525 this Agreement and shall be deemed to have been duly given and received on: (i)
526 the date of service if served personally, served by facsimile transmission, or
527 served via electronic mail on the Party to whom notice is to be given at the
528 address(es) provided below, (ii) on the first day after mailing, if mailed by Federal
529 Express, U.S. Express Mail, or other similar overnight courier service, postage
530 prepaid, and addressed as provided below, or (iii) on the third day after mailing if
531 mailed to the Party to whom notice is to be given by first class mail, registered or
532 certified, postage prepaid, addressed as follows:
533 Notice to San Bernardino Valley Municipal Water District
534
Douglas Headrick, General Manager
535
SAN BERNARDINo VALLEY MUNICIPAL WATER DISTRICT
536
380 East Vanderbilt Way, San Bernardino, CA 92408
537
Phone: (909) 820-3701
538
Email: douLIash@sbvmwd.com
539
540
David R.E. Aladjem
541
DowNEY BRAND LLP
542
621 Capitol Mall, Sacramento, CA 95814
543
Phone: (916) 520-5361
544
Email: daladiemndownevbrand.com
545 Notice to East Valley Water District
546
John Mura, General Manager/CEO
547
EAST VALLEY WATER DISTRICT
548
31111 Greenspot Rd., Highland, CA 92346
549
Phone: 909-889-9501
550
Email: i2bQeaeastvalley.org
551
552
Jean Cihigoyenetche
553
JC LAW FIRM
554
5871 Pine Ave., Suite 200, Chino Hills, CA 91709
555
Phone: 909-941-3382
556
E-mail: ieart6theiclawfirm.com
557
t=197a
Settlement Agreement
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November 2017
Page 15 of 18
Execution Copy
559 `odce to the City ofSan Bernardino and. the City QfSan Bernardino Municipal Water
559 Department
560
561 Andrea M. Miller, City Manager
562 CITY OF SAN BERNARDINO
563 290 North "D" Street
564 San Bernardino, CA 92418
565 Phone: (909) 384-51.22
566 E-mail: Idiller an a sb it%.or_
567 -
568 Gary D. Saenz
569 City Attorney
570 Office of the City Attorney
571 290 North "D" Street, 3rd Floor
572 San Bernardino, CA 92401
573 Phone: (909) 384-5355
574 E-mail: Saenz_Ga@sbcity.org
575
576 Andrew M. Hitchings
577 Somach Simmons & Dunn
578 500 Capitol Mall, Suite 1000
579 Sacramento, CA 95814
580 Phone: (916) 446-7979
581 E-mail:
582
583
584 IN WITNESS HEREOF, the Parties have executed this Agreement on the dates set forth below
585
596 SAN BERNARDINO VALLEY;Vit1NICIPALWATER DISTRICT
587
588 By: Dated
589 Susan Longville
590 President, Board of Directors
591
592 By,
593 Steve Copelan, Secretary
594
1502107
Dated:
Settlement Agreement
City of San Bernardino, SB Water, East Valley and Valley District
November 2017
Page 16 of 18
595
596
597
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609
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611
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613
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1502197 3
APPROVED AS TO FORM
By:
Dated:
David R.E. Aladjem
Downey Brand, LLP
Counsel for San Bernardino Valley Municipal Water District
EAST VALLEY WATER DISTRICT
By: f!
Ronald L. Coats
Chairman of the Board
By: - - - —
John Myra, General N4anager, CEO
APPROVED AS TO FORM
By: _
.lean Cihigoyenetlie
JC Law Firm
Counsel for East Valley Water District
Execution Copy
Dated: //- V-
Dated:
Dated:
Settlement Agreement
City of San Bernardino, SB Water, East Valley and Valley District
November 2017
Page 17 of 18
618 CITY OF SAN BERNARDINO
619
r J,�t
620 By: _ 1,2
L- - .
621
622
623
624
625
626
627
628
629
630
631
632
633 3
634
635
636
637
639
639
640
641
642
643
644
645
646
647
!M1973
x
R. Carey Dat' is
Mai or
By:
Andrea Miller
City Manager
CITY OF SAN BERNARDINO MUNICIPAL WATER DEPARTMENT
By: I
l'on] Call;cotl
President
APPROVED AS TO FORK
By:
'
Gary DSaenz, City Attorney
'y �'
By,
Andrew M. Hitchings
Somach Simmons & Dunn
Special Counsel for City of San Bernardino
Execution Copy
Dated:
t�
lv'�ffi P
Dated:
Dated: It - � 0 - t 7
Dated: IVZ�'
/77
Dated. // a -7
- ILI�
Exhibit A: Map: EVWD and San Bernardino Tributary to 3rd Sewer Study
Exhibit B: Map: Sterling Properties
Settlement Agreement
City of San Bernardino, SB Water, East Valley and Valley District
November 2017
Page IS of 18
Exhibit A
LI
Exhibit B
io
—a&— tall a t sr,