ATTACHMENT
1 Page
1 of
5 AMENDMENT NO.
18 OF
NAPA COUNTY FLOOD CONTROL AND WATER
CONSERVATION DISTRICT AGREEMENT NO. 1573
(CITY OF NAPA AGREEMENT NO. 1482)
(WATER SUPPLY CONTRACT WITH THE CITY OF NAPA)
THIS AMENDMENT NO.
1 8
OF NAPA COUNTY FLOOD CONTROL
AN
D WATER CONSERV
ATION
D
ISTRICT AGREEMENT NO. 1573
(CITY OF
NAPA AGREEMENT NO. 1482)
, hereinafter referred to as
“
A
mendment No.
18 ,
” is
made as of this _______ day of ___________,
2022
, by and between the NAPA
COUNTY FLOOD CONTROL AND WATER CONSERVATI
ON DISTRICT,
he
reinafter re
f
erred to as “Agency
,
” and the CITY OF NAPA, hereinafter referred to as
“City
;
”
RECITALS
WHEREAS
, Agency is party to a water supply
agre
ement
(“State Water Supply
Agreement
”) with the State of California
, initially approved on
December 19, 1
963, and
sub
s
equently amended by the parties thereto,
that specifies the amount of water available
to Agency for disbursement to its
Member Units
(defined by Agreement
p
aragraph 1(f))
in any given year and a number of component charges for w ater allocated
and delivere
d
through the North Bay Aqueduct
; and
WHEREAS
, City and Agency entered into the
“Contract for Water Supply from
North Bay Aqueduct Between Napa County Flood Control and Water Conservation District and City of Napa (Agency Agree
ment No. 1573,
and City Agr
e
ement No. 1482,
hereinafter “
Contract
”)
as of April 5, 1966, subsequently modified by Amendment No. 1 as of D
ecember 21, 1982
,
Amendment No. 2A as of April 6, 1993, Amendment No. 2B
as of December 15, 1998
,
Amendment No.
3 as of
September 19,
2000, Amendm
e
nt No.
4 as of
November 16, 2004
,
Amendment
No.
5 as of December 7, 2004
, Amendment No.
6 as of November 7, 2006
,
Amendment No. 7 as of November 7, 2006
,
Amendment No.
8 as of March
4, 2008
,
Amendment No. 9 as of April 15, 2008
,
Amendment No
s
.
10 as of
Ap
r
il 7, 2009, Amendment Nos. 11 and 12 as of August 4, 2009 ,
Amendment No. 13 as
of October 6, 2009
,
and by Amendment No. 14 as of June 18, 2013
,
and by Amendment
15 as of October 15, 2013
, and by
Amendment 16 as of March 19, 2019
,
and by
Amendm
ent 1
7 as of
December 15
, 20
20,
under which Agency disbur
ses to City as a
member unit, a portion of the water allocated to Agency under the State Water Supply Agreement
; and
WHEREAS,
as authorized
under Amendment 9 of this Agreement,
Agenc
y
has
been invo
lved in litig
ation
over its contract
with
the S
tate of California
Department of
Wa
ter Resou
rces (DWR)
and what is commonly referred to as the Area of Origin
(AOO)
Litigat
ion
;
a
n
d
ATTACHMENT
1 Page
2 of
5 WHEREAS,
the
AOO
litigation
as outlined in paragraph 19 of th
is
A
greement
cu
lminated in a
S
ettlement
A
greement with DWR
, and
WHEREAS,
subsequent to the
approval of the
S
ettlement
A
greement
, the
Agency
on behalf of
its
s
ub
contr
actor
cities,
and other North of Delta SWP Contr
ac
tors,
Sol
a
n
o
County Water Agency and the
City of Y
uba
C
ity, co
llecti
vely
“
AOO
par
ties
”
,
have dis
puted the
AOO parties rights under the Settlement Agreement with DWR
and
Article 45 of the
State Water Supply
Agreement
.
The AOO parties
seek an
agreement
with DWR, or
otherwise
desire
to
pursue
appro
priate
judicial
relief to re
store the
parties
’
carryover storage water lost i
n water year 2020 due to
DWR
’
s interpretation of the parties
N
orth of Delta (NOD) Allocation, or obtain monetary
compensation
for the lo
ss
(hereinafter
“
NOD Allocation negotiation
s and litigatio
n
”
)
, and
WHE
REAS,
the
g
overning
boards of the
AOO parties
have
each retained the law
firm of S
om
ach, Simmons and Dunn
, and
authorized
negotiations with
,
and filing a claim
against
, and if necessary
, the commencement o
f litigation against
DW
R
and others,
a
nd
have enter
ed into a MOU (
Exhibit A)
governing the allocation of att
orney
’
s fees
and
other costs
arising
from the NOD
Allocation negoti
ation and litiga
tion
(
hereinafter the
2021 AOO MOU)
.
TERMS
NOW, THEREFORE, IT IS MUTUALLY AGREED
by
Agency and City
that
t
he
2021
AOO MOU
shall be incorporated into the State Water Supply
Agreemen
t
and
the
Contract
shall be
amended
as follows:
1. Paragraph
22 is
added
to
the
Contract
for
Water
Supply
from North
Bay
Aqueduct
between
Agency
and
City
as
part
of
Amendment
N
o.
18 ,
as
follo
ws:
22 .
Memorandum of Understanding with Solano County Water Agency
and
the City of Yuba City for participation in the
negotiations and litigation
against the California Department of Water
Resources
("DWR")
for
the
purpose
o
f
determining
t
he
Agency's
rig
hts
under
AOO Settlement
Agreement and
Article
45 of
the
State
Water
Supply Agreement.
(a)
Agency
has
sign
ed
the 2021
AOO
MOU
with Solano
County Water Agency
and
the
City of
Yuba City
to govern the allocation
of attorney's
fees a
nd other
costs
arising from
de
termining the
contra
ctor
’
s rights under
the
AOO Settlement
Agreement and
Article
45 negotiations
claims
and
potential
litigation
(as
defined
in
the
2021
AOO
MOU
),
the
designation
of lead
counsel,
and related
confidentiality a
nd administrativ
e issues in or
der
to
pursue
appropriate
judicial
relief
to restore the
parties
’
carryover storage water lost i
n water year 2020 due to
DWR
’
s
interpretation of the parties N
orth of Delta (NOD) Allocation, or obtain monetary
compensation
for
the lo
ss
.
ATTACHMENT
1 Page
3 of
5 (b)
(i) C
ity shall reim
burse Agency for its proportionate share
of costs incurred
due to the prosecution of the
NOD
Allocation
negotiations and
litigation against
DWR, including the fees of any and all attorney's hired,
in
accordance
with
Paragra
ph
20 (e)
below,
to represent
t
he
Agency
on
this
item, and costs associated
with the Memorandum of Understanding
including but not limited to litigation
and expert costs, administrative
costs, and potential costs under Code of Civil
Procedure Section 1032.
These costs sha
l
l be apportion
ed
to
all Member Units
directly
proportional
to their
ultimate
Table A (
29,025
AF
total
for Napa
County)
annual
entitlements.
(ii) City shall pay its share of the costs described in sub
paragraph (b) (i)
not later than
thirt
y
(
30 )
days
after
receipt of A
gency's
invoices.
Agency's
invoices shall be in amounts sufficient to allow
Agency to receive funds to pay
City's proportionat
e share of Agency's
current
obligations
of the
2021
AOO
MOU
no sooner than
thirty
(30)
days
prior
to
the
date
t
he
same
become
du
e.
(c)
Agency shall keep City informed of the status
of litigation
and/
or
settlement negotiations and shall enter in
to a settlement agreement only
after each
of the Member Units agree in writing to the settlement
agreement.
The Agency
shall
not execute
any set
tlement
agreement
unl
ess
each Member Unit has provided
Agency with written consent to
t
he
settlement
agreement.
Settlement proceeds, if
any, shall be
apportioned
amo
ng all Member Units directly proportional to their
ultimate
Tab
le
A
Entitlements
(2
9 ,0
25 AF
total for Napa County) a
nnu
al
entitlements.
City and Agency agree
that the terms of the Confi
dentiality
Agreement
for the
original AOO
Litigation
,
e
ntered
into
on November 18, 2008
remain in effect
.
(d)
City shall provide comp
ensation for its p
roportionate s
h
are (21,900
AF
of
29,025
AF
or 75.45%)
of the costs associated with the Agency
’
s portion of the
2021
AOO MOU.
(
e
)
Agency
shall
n
ot
withdraw
from
the
2021
AOO
MOU
wi
tho
ut
written
authorization
from
each
of
the
Member
Units
and
after
compliance
with
2021
A
O
O
MOU
.
(
f
)
Age
ncy
shall change attorneys and/or hire new attorneys
to
represent Agency
on this
AO
O
litigation only after
each of the
Member
Units
agrees
in
writing
to
the
change(s)."
2. Regarding
Paragraph
1 above, Agency and City a
ckn
owledge
that it is
th
e
intent
of the parties that the other Member Units (defined in
Parag
raph l(f) of
the
Contract for
Water Supply
from
North Bay Aqueduct
between
Agen
cy and City) within
the service
area of Agency under the Sta
te Water Supply Agreement will also be
amending
t
heir
respective
Agreements
with
Agency
in
substantially
the
same
ma
n
n
er
as
set
forth
above.
ATTACHMENT
1 Page
4 of
5 3.
Except as provided in (1) and (2) above, all of the te
rms and provisions of the
Agreement
shall
remain,
after
the
effective
date
set
forth
above,
in
full
force
an
d
effect
as
previously
approved
and
last
amended.
4. Th
e
effective
date of
Amendment
No.
1 8
shall be
the
date of execution
by
Ag
ency and City.
[SIGNATURE PAGE TO FOLLOW]
ATTACHMENT
1 Page
5 of
5 IN
WITNES
S WH
EREOF
, the parties hereto have executed this Amendment
No. 1
8 as of the date first above written.
CITY OF NAPA
NAPA COUNTY FLOOD CONTROL
AND WATER C
ONSERVATION
DISTRICT
By______________________
By__________________________
_____
_
PHIL BRUN
BRAD WAGENKNECHT
Utilities Director
Vice
Chairperson
ATTEST:
ATTEST:
By_________________________
B
y________
________________________
TIFFANY CARRANZA
NEHA HOSKINS
City Clerk
District Secretary
APPROVED AS TO FORM:
APPROV
ED AS T
O FORM:
By______________________________
By__________________
_
_____________
MICHAEL W. BARRETT
SHANA
A. BAGLEY
City Attorney
District Legal Counse
l
COUNTERSIGNED:
By_________________________
JOY RIESENBERG
City
Auditor