9335 Hazard Way • Suite 200 • San Diego, CA 92123 . (858) 614-7755 • FAX (858) 614-7766 San Diego Local Agency Formation Commission Website: www.sdlafco.org Chairman Bill Horn County Board of Supervisors December 7, 2015 9A TO: LOCAL AGENCY FORMATION COMMISSION 98 FROM: Executive Officer. SUBJECT: Provision of Wastewater Service to the Proposed Coastal Campus on the Naval Base Coronado Silver Strand Training Complex - South (NBC SSTC-S) Vice Chairman Sam Abed Mayor City of Escondido Members Dianne Jacob County Board of Supervisors Andrew Vanderlaan Public Member Lorie Zapf Councilmember City of San Diego Lorraine Wood Councilmember City of Carlsbad Jo MacKenzie Vista Irrigation District Vacant Special District Alternate Members Greg Cox County Board of Supervisors Chris Gate Councilmember City of San Diego Racquel Vasquez Councilmember City of Lemon Grove Ed Sprague Olivenhain Municipal Water District Harry Mathis Public Member Executive Officer Michael D. Ott Legal Counsel Michael G. Colantuono BACKGROUND The Department of the Navy (Navy) is pursuing the development of a Coastal Campus on the Naval Base Coronado Silver Strand Training Complex - South (NBC SSTC-S). The proposed Coastal Campus is located within the City of Coronado and is part of a Special Warfare Command Operations project. The project footprint of the proposed Coastal Campus consists of 169.4 acres within the 548-acre NBC SSTC-S site. At a cost of approximately $700 million, the federal goverflment considers the Coastal Campus an integral part of the Department of Defense's ongoing Global War on Terrorism, following the events of September 11, 2001. When completed, the Coastal Campus will assist the federal government accomplish a number of nationwide objectives associated with a "congressional mandate" for military readiness, such as improving base training and operations, accommodating base expansion needs and facilities, etc. Construction is proposed over a 10-year period and will add nearly 1.5 million square feet of facilities within the corporate limits of Coronado, north of Imperial Beach on the Silver Strand. Refer to attached map for the location of the Naval Base Coronado site (Attachment 1). The scale of the Coastal Campus project and prov1s1on of wastewater services represent major issues for the City of Coronado. With respect to wastewater service, Coronado representatives state that the Navy is relying on a nearly 50-year old out-of-agency sewer service agreement with the City of Imperial Beach for the proposed Coastal Campus (Attachment 2). Coronado believes this service agreement may be invalid because neither Imperial Beach nor the Navy obtained approval from the San Diego Local Agency Formation Commission (LAFCO) before execution of the agreement. Coronado asserts that while State Law exempts some out-of-agency contractual service agreements from LAFCO purview, the 1967 agreement between Imperial Beach and the Navy should be subject to LAFCO purview, because it was originally intended to extend service to limited development – not the 1.5 million square feet of training facilities the Navy is currently proposing at the NBC site. Coronado city staff accordingly request that the Commission: (1) Determine that Coronado (and not Imperial Beach) be designated as the proper provider of wastewater services to the NBC site; (2) Find that since the NBC site is within the Coronado city limits (and outside Imperial Beach city limits and sphere) that Imperial Beach cannot provide wastewater services to the NBC site without LAFCO approval; and (3) Undertake review of the provision of sewer services to the NBC site, especially in light of the fact that the City of Imperial Beach recently stated that it will not provide wastewater services beyond the current level to the NBC site without LAFCO approval. LAFCO staff acknowledges that the City of Coronado has raised a number of important land use and service concerns. However, we believe the concerns do not fall within the Commission’s purview to address. While LAFCO has considerable authority over jurisdictional boundary changes, the Commission’s authority regarding contractual service agreements is not without limit. In the case of the extension of contractual sewer service to the NBC site, LAFCO staff has determined that a statutory exemption contained in Government Code Section 56133(e) restricts the Commission from exercising purview over the provision of sewer service to the NBC site. This provision exempts the extension of services by contract or agreement outside a jurisdiction’s boundaries if the extended service was provided on or before January 1, 2001. Documents obtained by LAFCO staff confirm that the City of Imperial Beach has been extending wastewater service contractually to the federal government since 1967. Refer to Attachment 2 for the contractual service agreement between Imperial Beach and the Navy, and Attachment 3 for the exemption contained in Government Code Section 56133(e). As discussed in this report and the Preliminary Determination reached by LAFCO staff, we have concluded that Coronado’s argument that LAFCO must exercise purview over the contractual service agreement between Imperial Beach and the Navy is belied by the plain language in Government Code Section 56133(e). Contrary to assertions made by Coronado, this exemption does not distinguish between service level increases, land use changes and conflicts, or other land use issues such as development density and intensity increases – only whether the services were extended on or before January 1, 2001. Therefore, based on the documentation we obtained from Imperial Beach and the Navy, we conclude that the 2001 “grandfather” provision in Government Code Section 56133(e) is applicable. If the Commission concurs, this would mean that the continued provision of wastewater service by Imperial Beach to the Navy would be exempt from LAFCO purview. The conclusions reached by LAFCO staff were 2 confirmed and reviewed by LAFCO’s Legal Counsel Michael Colantuono. Refer to Attachment 4 for Mr. Colantuono’s legal analysis and Attachment 6 for LAFCO staff’s Preliminary Determination. Should the Commission disagree with these conclusions, then there would be several consequences. If the Navy still desired to obtain sewer service from Imperial Beach, then Imperial Beach would need to obtain approval from the Commission after submitting an application and processing fees in the amount of $27,180. However, the Commission should be aware that it is questionable whether such an application could be approved, because provisions in current law require that the subject territory be within the service provider’s sphere of influence and that the service extension must be in anticipation of a later change of organization (e.g., annexation). These two conditions currently do not exist with respect to the City of Imperial Beach and the NBC site. Nonetheless, if the Commission decided to exercise purview over the provision of sewer services by Imperial Beach, LAFCO staff would need to research this matter further. Another possibility if the Commission found that the 1967 agreement between Imperial Beach and the Navy was invalid, would be for Coronado to assume jurisdiction for providing sewer service within its jurisdictional boundaries, or the Navy would be forced to devise an alternative method to dispose of effluent on-site. If the City of Coronado assumed responsibility for providing wastewater service to the proposed Coastal Campus, then this would cost the federal government another $31 million, according to Navy estimates ($11 million for internal infrastructure within the NBC site and $20 million for infrastructure external to the site). The associated sewer infrastructure would also likely traverse through about 8-10 miles of environmentally sensitive habitat and result in the need to prepare supplemental environmental assessment in accordance with the National Environmental Policy Act (NEPA). Estimated additional environmental assessment costs would be approximately $500,000. It is also probable that the revised project would necessitate congressional approval for supplemental financing. Another option would be for Coronado to enter into a three-way contract with Imperial Beach and the Navy. Such a contract would not be subject to LAFCO purview, but it would require concurrence of all three potential contractual parties. A summary of the Preliminary Determination; an evaluation of Coronado’s concerns; reconsideration process; and possible Commission options follow. Pertinent attachments to this staff report include: Attachment 1: vicinity map; Attachment 2: Contractual Service Agreement between Imperial Beach and the Navy; Attachment 3: Government Code Section 56133(e); Attachment 4: LAFCO Legal Counsel Michael Colantuono’s analysis regarding the provision of sewer service to Naval Base Coronado; Attachment 5: Coronado’s Request for Reconsideration (appeal) of the Preliminary Determination submitted by John Bakker of Meyers/Nave; and Attachment 6: Preliminary Determination. These documents are also posted on the San Diego LAFCO’s website: www.sdlafco.org. 3 EVALUATION OF CORONADO’S CONCERNS To evaluate the merits of Coronado’s concerns, LAFCO staff reviewed the 1967 wastewater service agreement between Imperial Beach and the Navy in relation to Government Code Section 56133. The pertinent provisions of this State Law are located within subdivisions (b), (c) and (e) of Section 56133. Subdivision (b) requires that the affected service contract territory be located within the sphere of influence of the proposed service provider. Subdivision (c) contains an exception for situations that necessitate a contractual service agreement outside a service provider’s sphere of influence to respond to existing or impending threats to the public health and safety of residents of affected territory. Subdivision (e) exempts LAFCO’s purview over out-ofagency service agreements whether or not the territory is located within or outside a service provider’s sphere of influence, if a city or district was providing the extended service on or before January 1, 2001. Subdivision (e) also exempts contracts or agreements solely involving two or more public agencies in certain circumstances. In the case of the proposed Coastal Campus, neither subdivisions (b) nor (c) are applicable, because the Coastal Campus is located outside of the City of Imperial Beach’s sphere, and the service extension is not related to an existing or impending threat to public health and safety of residents (e.g., failing septic system). However, subdivision (e) applies because the City of Imperial Beach has been extending sewer service to the site since 1967 via a service agreement with the Navy. While the City of Coronado raises an interesting point that the service demands for the proposed Coastal Campus will exceed the historic level of service provided to the Navy, the exemption language in Government Code Section 56133(e) does not distinguish between service levels or changes in land use – only that the affected city or district was providing the subject service(s) on or before January 1, 2001. LAFCO staff confirmed that Imperial Beach and the Navy first executed the wastewater service agreement in 1967 and last amended it in 1991. The agreement also contains an expansive provision requiring that Imperial Beach receive, transport, treat and dispose sewage at whatever level the federal government desires. The expansiveness of the 1967 wastewater agreement appears to contradict Coronado’s argument that the agreement was intended to be used to serve only a limited amount of development. Therefore, based upon the effective date of the agreement (1967) and the expansiveness of the overall agreement, LAFCO staff determined that the continued provision of sewer service to the NBC site satisfies the exemption requirements in Government Code Section 56133(e). On April 9, 2015, LAFCO staff notified the subject agencies regarding this determination. After the April 9th notification was issued, LAFCO staff provided an opportunity for the local agencies and Navy to submit comments. The Commanding Officer of the NBC issued a letter on June 4, 2015, indicating the Department of the Navy supported LAFCO staff’s determination that the provision of sewer service to the NBC Coastal Campus site is exempt from LAFCO’s purview. The Navy’s Commanding Officer further stated that the existing historic agreement to provide wastewater services by the City of 4 Imperial Beach to the Navy will remain in effect, and the City of Imperial Beach will simply continue to provide wastewater services as required by the Government in such amounts as the Government desires in accordance with the wastewater service agreement in place since 1967. On May 26, 2015, the City of Imperial Beach provided comments and stated that the City recognizes the authority of LAFCO to determine the appropriate utility service boundaries for municipalities and would not provide services beyond the current service levels without authorization from LAFCO. This statement was a supplement to earlier comments provided to LAFCO staff on March 30, 2015, in which the City Imperial Beach informed LAFCO staff that the City of Imperial Beach would be willing to continue providing service to the Navy and that authorization for the services has been verified in the official City Council meeting minutes in 1967 authorizing the Mayor to execute the agreement and through several amendments to the agreement from that date forward. On October 20, 2015, the Imperial Beach City Manager informed LAFCO staff that Imperial Beach will perform its obligations to provide sewer service to the NBC site under the terms of the 1967 agreement and that Imperial Beach has obtained special legal counsel services with respect to this matter. On May 1, 2015 and July 7, 2015, the City of Coronado also provided comments reiterating its request that LAFCO undertake a review of the provision of sewer services to the Coastal Campus project. The City also requested that LAFCO determine that the City of Imperial Beach cannot provide wastewater services without LAFCO approval because the NBC Coastal Campus project is within Coronado's city limits and outside Imperial Beach's city limits and sphere of influence. Lastly, Coronado requested that LAFCO find that the City of Coronado (and not the City of Imperial Beach) is the proper provider of wastewater services to the Proposed Sewer Project. REQUEST FOR RECONSIDERATION On August 7, 2015, LAFCO staff formalized its conclusions in the Preliminary Determination, after receiving comments from the local agencies and the Navy. Among the conclusions in the Preliminary Determination was that the continued provision of sewer service by Imperial Beach to the NBC site within Coronado is not subject to LAFCO purview pursuant to Government Code Section 56133(e). The local agencies and federal government were provided another opportunity for comment and appeal. Agencies were informed that if agreement was not reached regarding the conclusions in the Preliminary Determination, that an appeal could be scheduled for consideration by the full Commission (LAFCO). On September 15, 2015, the City of Coronado filed a request for reconsideration, which is the subject of the December 7, 2015 LAFCO meeting. Refer to letter dated September 8, 2015 from John Bakker of Meyers/Nave in Attachment 5. Coronado’s appeal was submitted in a timely manner and was accompanied by a LAFCO filing fee of $1,030. LAFCO staff believes that Coronado’s argument to require LAFCO purview over the contractual service agreement between Imperial Beach and the Navy is belied 5 by the plain language of subdivision (e) of Government Code Section 56133. The Commission’s Legal Counsel has also reviewed this issue and concurs with this conclusion. The Commission should also be aware that this conclusion comports with recent statutory changes to Government Code Section 56133(e) per the Senate Bill 239 (Hertzberg). Lastly, Coronado representatives object to paying LAFCO’s $1,030 reconsideration filling fee and request that the Commission authorize a refund. The Commission should be aware that the fee was imposed consistent with the Commission’s adopted fee schedule and inadequate justification has been provided by Coronado for a fee refund. The cost of LAFCO staff and legal review associated with this contractual service matter far exceeded the amount of the $1,030 reconsideration fee. To assist the Commission in providing direction regarding the City of Coronado’s request for reconsideration, several options should be discussed, as outlined below. OPTIONS AVAILABLE FOR COMMISSION CONSIDERATION Option 1 Accept the conclusions in the August 7th Preliminary Determination and disapprove Coronado’s Request of Reconsideration. This action would reaffirm that the continued extension of wastewater service by the City of Imperial Beach to the proposed Coastal Campus site at NBC SSTC-S is exempt from LAFCO purview. The basis for this determination is that the continued provision of sewer service by Imperial Beach to the Navy constitutes an existing service that is subject to the 2001 “grandfather” provision in Government Code Section 56133(e). Subsection (e) exempts from LAFCO purview an extended service provided on or before January 1, 2001 and does not distinguish between level of service or land use issues. The documentation provided by Imperial Beach indicates that service has been extended to the federal government prior to 2001 and would continue under the provisions of the 1967 agreement. The 1967 contractual service agreement specifies that Imperial Beach must provide wastewater service at any level desired by the federal government in the future. Government Code Section 56133(e) also contains an exemption for contracts or agreement involving two or more public agencies where the public services to be provided is an alternative to, or substitute for, public services already being provided by an existing public service provider, and where the level of service to be provided is consistent with the level of service contemplated by the existing service provider. Although not cited by LAFCO staff as the basis for the above “grandfather” provision, this exemption may also apply to the Coastal Campus because the 1967 service contract is between Imperial Beach and the Navy, and the Navy could be categorized as “public agency” per Government Code Section 56010. Option 2 Concur with the City of Coronado and exercise jurisdiction under Government Code Section 56133, if the Commission believes that the provision of sewer services by 6 Imperial Beach to the Coastal Campus is not exempt from LAFCO purview. This option would result in either Imperial Beach filing an out-of-agency service contract application with LAFCO, or the City of Coronado assuming jurisdiction for the provision of sewer service. Under this option, Imperial Beach would be restricted from directly serving the Coastal Campus, unless LAFCO provided approval. If this option is pursued, the matter should be continued to a subsequent meeting so Imperial Beach could submit an application and processing fees. A LAFCO staff report would also be prepared at that time to address the merits of the associated issues. Should Imperial Beach not submit an application to LAFCO, then Coronado would assume jurisdiction for providing sewer service within its boundaries. If the City of Coronado assumed responsibility for providing wastewater service to the proposed Coastal Campus, the Navy estimates that the Coastal Campus project costs would increase by about $31 million ($11 million for internal infrastructure within the NBC site and $20 million for infrastructure external to the site). The associated sewer line would also likely traverse through about 8-10 miles of environmentally sensitive habitat and result in supplemental environmental assessment through NEPA at an additional cost of $500,000. It is also probable that the revised project would necessitate congressional approval for supplemental financing. Option 3 A third option would be a derivative of both of the above options. This option would involve the affirmation of the conclusion reached in Option 1 and include a Commission recommendation to encourage the three agencies (Imperial Beach, Coronado, and federal government) to make additional efforts to resolve associated local issues. This option could result in more coordination between the affected agencies; however, it is unknown whether resolution of the associated issues would occur. SUMMARY In summary, the Commission should provide direction to LAFCO staff regarding any of the above options. The City of Coronado’s Special Counsel John Bakker states that Coronado intends on using every means at its disposal, including litigation, to ensure that Coronado decides how sewer service is provided within the City. Based on the potential threat of litigation from Coronado, the December 7, 2015 agenda provides for a Closed Session (if needed) to discuss potential legal issues. The Commission is not obligated, however, to convene to a Closed Session. RECOMMENDATION: 1. Allow public comment on the Request for Reconsideration, and provide direction as to the disapproval or approval of the Request for Reconsideration (appeal) filed by the City of Coronado. 7 2, Review the City of Coronado's request for a refund of the LAFCO reconsideration fee of $1,030 and provide direction to staff on whether the refund should be authorized. Note: This matter is also noticed for a Closed Session to a/low the Commission to receive confidential/ega/advice, if necessary. MICHAEL D. OTT Executive Officer MDO:ra Attachments (1) Vicinity map (2) Contractual Service Agreement (3) Government Code Section 56133 (4) Memorandum from San Diego LAFCO Legal Counsel Michael Colantuono (5) Appeal of Preliminary Determination from Coronado (John Bakker) (6) Preliminary Determination 8 ATTACHMENT 1: VICINITY MAP Naval Base Coronado: Coastal Campus CHULA VISTA CHULA VISTA NATIONAL CITY SAN DIEGO BAY KURTZ PRIVATE ER SILV A STR ND MURPHY JOHNSON HOOPER ROWCLIFF STONE Naval Base Coronado: Coastal Campus CORONADO SAN DIEGO DATE UNNAMED LAFCO SAN DIEGO 16TH (SB) THIS MAP/DATA IS PROVIDED WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PALM (SB) FLORENCE 12TH FLORIDA 11TH 10TH EMORY RAINBOW SPRUCE 07TH DAISY 75 CALLA Copyright SanGIS 2009 - All Rights Reserved. Full text of this legal notice DAHLIA (SB) can be found at: http://www.sangis.org/Legal_Notice.htm GEORGIA 0.7 Miles DAHLIA SR - CAROLINA 0.35 05TH DONAX 0.175 04TH CITRUS DAHLIA 0 CORVINA 03RD OCEAN CITRUS BONITO Naval Base Coronado CYPRESS TH 05 o CALLA CALLA C CHERRY IMPERIAL BEACH ESS YPR Legend 13TH (SB) DELAWARE HOOPER E VAT PRI BOULE VARD 09TH Existing Sewer Line 08TH Pacific Ocean Date: 11/9/2015 DONAX Document Path: G:\GIS\Inquiries\IB naval station2.mxd DATE Attachment 2: Contractual Service Agreement 9A I I DEPARTMENT OF THE NAVY SOUTHWEST DIVISION NAVAL FACILITIES ENGINEERI~lG COMMAND SAU OIEGO, CAt.J,...OfiNJA IN RE:F•I. f AE rf!IJ TO: U?.F;t2 98 1123 Ser 7668 '! ·, 1'-~;:, "! ..... ~·i_: i? ..~·: •• t t,.1o,l. City of ~perial.Beach S25 Coronado Avenue P.O • .Box 427 Irnperia1 Beach. california 92032 Subject: Latt:ex Agreement N62473-67..M-0002 · . Gentl.~en: 1 . This .. til 13 1n ~- -------·-···-···1.,ldltt~/ ~ / reply to your 1etter o£ August 9 6 -1967 in which you requested that Contract :NByfU)36815 ~-en provides. sewer sel:vice to .t'l'aval Radio station, J:mpexial._ ..se&ch, be :renewed for another five (5) year period. 1'o re.du6e paper work and to conform with existing insi:l:uctions, j;.hi.s. proposed Letter Agreement irf fo~ward~ f:or yc)jp:-.,c6lisiderai:.ion • - . a.. Effad:ive dat:e - 1 J\lne 1967 b. Estimated annual. costs ... $45 .. 00 4 dwellings 1 guard house $40.00 s.oo c. Point of Delivery - on~ 6. inch c.onnection int.o. a City (:).E. :on~.rial· ~Eia.ch constl:UCI~ed ma.nhole at .t:tle ~nf~~~~ion of 'l:ha extens.iop. e>f the Silver Strand .Blvd. service main wfth. the Gove.rnmes1t sewer. 1ine·. .. ; ..·, . . ·. . . Jlj d.. Service to be rendered- The city of Xtnperial Beach, cali£ornia, shall pr~yide sanitary sewerage service as required by the GOvernment· and shall receive. transport, treat and.dispose of all sewage originating at the project in such amounts as·the GOvernment desires to release into the City•s system and in a manner and by such means as will constitute no hazard to the public health. The city of L~perial BeaCh shall operate its sewage disposal. and treatment facilities .:in confomity \nth appl.icable laws, rules and .regul.a·l:ions promulgated by state ana ~aderal govarnment,;tl authorities. 1123 ser 7668 a. Invoicinq - ~he Government will accept annual invoices and maks payment therefor at the rates shown ~bova \llhioh are understood to be tht:t lowest .rates available to any customers under like conditions of service. The Lett3r Agreement number shall be inserted on the invoices submitted for the service. Xnvoices to be submitted in quintuplicate to tne Oommandin9 Officer, Naval Communications Station, 937 ~o. Earbox Drive, san Diego, california 92132, Code 34G • .Applicc.ble accounting data will be furnished by the Govaxnment upon liquidacion of invoices in acoordanea with existing regulations .. in arr~ars f. Pament - Payments will be l'Clade by commanding Officer, Navy RegioDa1 Finance center, san Diego, california 92132. This Letter Agr~ent is processed under the provisions o£ 10 u~s.c. 2304(a)(lO). Pleasa indicata your acceptance of this Latter Agreement in the space provided therefor on the original and three copies herewith and return the original and two copies to the commander, southwest Division~ Naval Facilities Engineering command, Code 1123, san Diego, California 92132. sincerely, ;!~~- Accepted CITY OF !HPERIAL BEACH (Company Name} ~o~cJ~~nder, Naval Facilities Engineering command# Contracting Officer B~~----~----~~------~---(~ra.me and Official Title} Date.___~_o_-.3-6_.7________________ 2 Attachment 3: Government Code Section 56133 Government Code Section 56133 (Excerpt) 9A 98 (a) A city or district may provide new or extended services by contract or agreement outside its jufisdictional boundaries only if it first requests and receives written approval from the commission in the affected county. (b) The commission may authorize a city or district to provide new or extended services outside its jurisdictional boundaries but within its sphere of influence in anticipation of a later change of organization. (c) The commission may authorize a city or district to provide new or extended services outside its jurisdictional boundaries and outside its sphere of influence to respond to an existing or impending threat to the public health or safety of the residents of the affected territory if both of the following requirements are met: (1) The entity applying for the contract approval has provided the commission with documentation of a threat to the health and safety of the public or the affected residents. (2) The commission has notified any alternate service provider, including any water corporation as defined in Section241 of the Public UtififiesCode, or sewer system corporation as defined in Section 230.6 ofthe Public UfilitiesCode, thafhas filecfa map and a stateme-nt' of its service capabilities with the commission. d) The executive officer, within 30 days of receipt of a request for approval by a city or district of a contract to extend services outside its jurisdictional boundary, shall determine whether the request is complete and acceptable for filing or whether the request is incomplete. If a request is determined not to be complete, the executive officer shall immediately transmit that determination to the requester, specifying those parts of the request that are incomplete and the manner in which they can be made complete. When the request is deemed complete, the executive officer shall place the request on the agenda of the next commission meeting for which adequate notice can be given but not more than 90 days from the date that the request is deemed complete, unless the commission has delegated approval of those requests to the executive officer. The commission or executive officer shall approve, disapprove, or approve with conditions the contract for . . extended services. If the contract is disapproved or approved with conditions, the applicant may request reconsideration, citing the reasons for reconsideration. e) This section does not apply to contracts or agreements solely involving two or more public agencies where the public service to be provided is an alternative to, or substitute for, public services already being provided by an existing public service provider and where the level of service to be provided is consistent with the level of service contemplated by the existing service provider. This section does not apply to contracts for the transfer of nonpotable or nontreated water. This section does not apply to contracts or agreements solely involving the provision of surplus 25 water to agricultural lands and facilities, including, but not limited to, incidental residential structures, for projects that serve conservation purposes or that directly support agricultural industries. However, prior to extending surplus water service to any project that will support or induce development, the city or district shall first request and receive written approval from the commission in the affected county. This section does not apply to an extended service that a city or district was providing on or before January 1, 2001 (emphasis added). This section does not apply to a local publicly owned electric utility, as defined by Section 9604 of the Public Utilities Code, providing electric services that do not involve the acquisition, construction, or installation of electric distribution facilities by the local publicly owned electric utility, outside of the utility's jurisdictional boundaries. 420 Sierra College Drive, Suite 140 Grass Valley, CA 95945-5091 Main: (530) 432-7357 Fax: (530) 432-7356 9A COLANTUONO HIGHSMITH WHATLEY, PC 98 Attachment 4 MEMORANDUM TO: Chairman Hom and Member of the San Diego Local Agency Formation Commission FILE NO: 49021.0002 FROM: Michael G. Colantuono, Esq. Gary B. Bell, Esq.~J{jf, DATE: CC: Michael Ott, Executive Officer RE: City of Coronado's Appeal of Executive Officer's Determination that Commission Lacks Jurisdiction to Review Sewer Service Provided to Naval Base Coronado by the City of Imperial Beach November 12,2015 INTRODUCTION AND SUMMARY OF CONCLUSION We write to analyze whether the provision of sewer service to Naval Base Coronado by the City of Imperial Beach is subject to approval by the Commission pursuant to Government Code section 53166, as claimed by the City of Coronado in its request for reconsideration of a contrary decision by your Executive Officer. The Base receives sewer services from Imperial Beach under a 1967 agreement between the two agencies. The agreement provides that the City "shall provide sanitary sewerage services as required by the [federal] Government" and "shall receive, transport, treat and dispose of all sewage originating at the project in such amounts as the Government desires to release into the City's system." The agreement does not limit the volume of sewage the Base may release and the City of Imperial Beach is required to "receive, transport, treat and dispose." The Base is in Coronado. Over the next ten years, the Base is expected to add nearly 1.5 million square feet of new training facilities with a corresponding increase in sewer demand. Coronado contends this Commission has jurisdiction to determine 155794.4 I I I Michael Ott, Executive Officer November 12, 2015 Page2 whether Imperial Beach should be permitted to serve the wastewater needs of the proposed new facilities. Generally, the Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000 ("CKH") allows a local agency to provide .(/new or extended services" by agreement outside its boundaries only with the Commission's approval.l However, this requirement does not apply to: 1. contracts or agreements solely involving two or more public agencies where the public service to be provided is an alternative to, or substitute for, public services already being provided by an existing public service provider and where the level of service to be provided is consistent with the level of service contemplated by the existing service provider, and 2. an extended service that a city was providing on or before January 1, 2001.2 Your Executive Officer determined these two exemptions apply. Coronado has requested reconsideration of this determination. The issue is whether this determination is correct. We conclude that it is and recommend you affirm the Executive Officer's decision. FACTS The facts on which our opinion relies follow. If these facts are incorrect or materially incomplete, please let us know, as different facts might require a different conclusion. On March 30,2015, Imperial Beach informed the Commission that it was willing and able to continue providing sewer services to the Base as it has since 1967, including flows from the additional training facilities. On April 9, 2015, your Executive Officer informed Imperial Beach, Coronado and the Base that this service arrangement was exempt from LAFCO review under exceptions stated in Government Code section 56133. 1 2 Gov. Code§ 56133(a). Gov. Code§ 56133(e). 155794.4 i-' I Michael Ott, Executive Officer November 12,2015 Page3 j·· 1: On April 10, 2015, Coronado disagreed with that conclusion by letter and on May 1 its special counsel requested reconsideration of that decision. On May 26, 2015, Imperial Beach notified the Commission it would not provide sewer service to the Base beyond current service levels without authorization from the Commission, reversing its position of March 30, 2015.3 The City. has since orally informed the Executive Officer that it will perform its obligations to the Base under the 1967 agreement. On June 4, 2015, the Commanding Officer of the Base informed the Commission that the Base agreed with the Executive Officer's determination. On July 7, 2015, Coronado's special counsel reiterated the City's April 10, 2015 objection to the Executive Officer's decision and made additional arguments for reconsideration. Coronado requested the Commission: 1. . review Imperial Beach's sewer services to the Base, 2. find that Imperial Beach cannot provide those services without Commission approval, and 3. find that Coronado is the better provider of sewer service to the Base. On August 7, 2015, the Executive Officer concluded the provision of sewer services to the Base by Imperial Beach was exempt from approval by the Commission, noting that an interested party could seek reconsideration of his conclusion by your Commission. Coronado has timely done so and the matter is now before you for decision. '· ISSUES Whlle Imperial Beach stated in one letter that it will not provide sewer services to the additional facilities proposed for the Base without the Commission's approval, Coronado has provided the legal arguments for that position. Whether or not Imperial Beach maintains that view, as recent conversations suggest it does not, Coronado argues: 3 This may be viewed as a request for approval to provide extra-jurisdictional services. 155794.4 .J. Il fP Michael Ott, Executive Officer ~ovember12,2015 Page4 1. The Commission may not rely on the exemption for extended services provided before January 1, 2001 because that exemption is not included in the Commission's 2013 LAFCO Procedures Guide; 2. Even if the Commission could rely on that exemption, the exemption does not apply to an "expansion" or "amendment" of existing services; 3. The Commission may not rely on the exemption for contracts solely involving two public agencies because the Base, a federal agency, is not within CKH' s definition of "public agency;" and 4. Because the sewer services are provided in Coronado and outside the boundaries and sphere of influence of Imperial Beach, and because the services are not provided in response to an existing or impending threat to the health and safety, Imperial Beach cannot provide the services without Commission approval. We address, and disagree with, each of these arguments below. DISCUSSION The Act provides that a city may only provide "new or extended" services by contract or agreement outside its boundaries with the prior written approval of the Commission. 4 Within 30 days of a request, the Executive Officer must determine whether the request is complete and, if so, agend.ize it for the next Commission meeting not more than 90 days from the date of the request, unless the Commission has delegated approval of requests to the Executive Officer.5 The Commission's 2013 LAFCO Procedures Guide provides: Unless the extension of services is in response to a health or safety threat to property outside an agency's sphere of influence, applicants [for extended services] will be required to submit an annexation/detachment application, or other documentation demonstrating that the agreement is in anticipation of a subsequent jurisdictional change (e.g., irrevocable offer to annex). This dual application Gov. Code§ 56133(a). s Gov. Code§ 56133(d}. 4 155794.4 Michael Ott.f Executive Officer November 12, 2015 PageS requirement may be· waived in certain situations by the Executive Officer if compelling justification is provided. Here, compelling justification has been provided: the extended services at issue are provided to the Base outside Imperial Beach without plan to adjust the boundary between the two cities, so the application requirements do not apply. Therefore; to the extent Imperial Beach's May 26.1 2015 statement it would not serve additional facilities on the Base without Commission approval is deemed an application to provide such services, the Executive Officer may waive the application requirements. However, the final determination to "approver disapprove, or approve with conditions" the application must be made by the Commission because it has not delegated this authority to the Executive Officer.6 Thus.f if it chose, the Commission could overrule the Executive Officer's conclusion that it need not act on this extension of service, and instead, treat Imperial Beach's letter as notification of the City's intention to file an application, and grant or deny it on its merits. If the Commission takes that approach; we recommend you continue your hearing to allow Imperial Beach to formally submit an application and processing fees. However, we note that it is questionable whether such an application could be approved by the Commission, because current law requires that new or extended services be provided within a service provider's (Imperial Beach) sphere of influence in anticipation of a later change of organization; or in response to an existing or impending threat to the public health or safety of residents of the affected territory. Neither of these two conditions currently exist with respect to the Naval Base Coronado site, according to documents we reviewed. Nonetheless, continuance will allow the Executive Officer to prepare a staff report addressing the merits of the service issue. Coronado Argument 1. Coronado first argues that the Commission may not rely on the exemption for extended services provided before January 1, 2001 because that exemption is not included in the Commission's 2013 LAFCO Procedures Guide. This amounts to a claim that the Commission's Guide can amend CKH. It cannot. Moreover; the preface to the Guide states: The summaries and statutes provided in the Procedures Guide are intended to serve as general information only. For more 6 Gov. Code§ 56133(d); SD LAFCO Procedures Guide, 2013 Special Edition, at 85-87. 155794.4 I Michael Ott, Executive Officer -I ~oveD1ber12,2015 Page6 II. detail, refer to the referenced sections of the applicable state code? Thus, the Guide is controlled by CKH and not the reverse. Thus, the provision of the Act that exempts from the Commission's approval extended services provided before January 1, 2001 is part of the Guide by implication. Coronado Argument 2. Coronado next argues this exemption does not apply to an "expansion" or "amendment" of existing services. It argues that principles of statutory construction require that a more limited interpretation apply because other exemptions address an increase in services, but this one does not.8 However, this interpretation essentially reads out the word "extended" from the statute requiring the Commission's approval: "A city or district n1ay provide new or extended services by contract or agreement outside its jurisdictional boundaries only if it first requests and receives approval fron1 the comD1ission in the affected county." 9 The phrase "extended services" contemplates a service that is not new and is reasonably read to include the increased services the Base proposes. As Coronado acknowledges, no authority interprets "extended services" in section 56133. Furthermore, that section's exen1ption for extended services provided before January 1, 2001 states no requirement for the volume of service provided. If the Legislature had intended to limit the scope of this exception to existing service levels, it would have said so. As it did not, your Commission ought not to read that requirement into the statute. Coronado Argument 3. Coronado also argues the Commission may not rely on section 56133's further exemption for contracts involving only "public agencies" because the Base is not within CKH's definition of "public agency." CKH defines "public agency" as: "the state or any state agency, board, or commission, any city, county, and city and county, special district, joint powers authority, or other political subdivision.'' 10 However, CKH also provides that its definitions apply "[u]nless the provision or context otherwise requires." 11 The exemption provides: SD LAFCO Procedures Guide, 2013 Special Edition, at v. s See Gov. Code§ 56133(e). 9 Gov. Code§ 56133(a) (emphasis added). 10 Gov. Code § 56070. n Gov. Code§ 56010. 7 155794.4 Michael Ott, Executive Officer ~ovemberl2,2015 Page7 This section does not apply to contracts or agreements solely involving two or more public agencies where the public service to be provided is an alternative to, or substitute for, public services already being provided by an existing public service and where the level of service to be provided is consistent with the level of service contemplated by the existing service provider P · The apparent purpose of this exception is to limit Commission jurisdiction to review inter-agency service agreements which do not have implications for land use intensity, as do the out-of-service-area contracts with which section 56133 is primarily concerned. That purpose need not distinguish between the local agencies within the Legislature's power and federal agencies, which are not, as CKH must in most other settings. Accordingly, we conclude that section 56133's provisions and their context require a broader definition of "public agency" to include federal agencies than is stated in section 56070 for other provisions of CKH. Coronado also argues the level of service to be provided to the Base is not - u consistent with the level of service by the existing service provider." True, but this ignores the language of the exception. New services need not be consistent with old services but with uthe level of service contemplated by the existing service provider." Imperial Beach stated by its City Manager's March 30, 2015 letter that it was willing and able to serve the new training facilities. Thus, Imperial Beach "contemplates" this level of service so as to trigger this exception to Commission review under section 56133. Coronado Argument 4. Finally, Coronado argues that because the services do not respond to an existing or impending threat to the health and safety, Commission approval is required before Imperial Beach may provide them. The Commission's 2013 LAFCO Procedures Guide provides: LAFCO may approve a request for out-of-agency services if the affected territory is within the agency's sphere of influence and is in anticipation of a later change in organization Ior if such services] respond to an existing or impending threat to the health and safety of the public or the 12 Gov. Code§ 56133(e). 155794.4 Michael Ott, Executive Officer ~ovember12f2015 Page8 affected residents [if certain requirements are met]. (Emphasis added.) However, these requirements apply to the approval or authorization of a request for Commission approval of new or extended services. They do not address whether such a request is required. As stated elsewhere here, we conclude the Executive Officer correctly determined no such request is required on the current facts. CONCLUSION We conclude the Executive Officer correctly determined that Imperial Beach does not require advance approval of your Commission to continue to serve the Base under the 1967 Agreement and to serve the new training facilities the Base proposes for either or both of two reasons: the services predate 2001 and involve only two public agencies. Your Commission should allow public comment on this matter and then exercise one of these options: 1. Accept your Executive Officer's conclusion and deny Coronado's request for reconsideration. 2. Grant Coronado's request and exercise jurisdiction under section 56133 to approve (with or without conditions) or disapprove Imperial Beach's services to the Base. If you pursue this option, we recommend you continue this item to a subsequent meeting so Imperial Beach could formally submit an application and processing fees to the Commission. This will also allow your Executive Officer to prepare a staff report to address the merits of these issues, including the implications for Imperial Beach and LAFCO if services are not provided as required by the 1967 Agreement. This matter is also agendized for closed session to allow your Commission to receive confidential legal advice should you feel the need for it. If you have questions or concerns before the December 7th meeting, please contact Mr. Colantuono. 155794.4 Attachment 5: Appeal of Preliminary Determination Oakland, California 94607 tel (510) 808-2000 fax (510) 444-1108 www.meyersnave.com Attorney at Law Direct Dial: (510) 808-2000 jbakker@meyersnave.com 9A 9B meyers nave September 8, 2015 Via E-mail and U.S. Mail Michael D. Ott, Executive Officer San Diego Local Agency Formation Commission 9335 Hazard Way, Suite 200 S~n Diego, CA 92123 Re: Appeal of Executive Officer's August 7, 2015 Preliminary Determination on the Provision of Wastewater Service to Naval Base Coronado Coastal Campus Dear Mr. Ott: As you know, I represent the City of Coronado in this matter. My client and I have carefully reviewed your preliminary determination-that LAFCO has no authority over Imperial Beach's provision ofsewer service to the Coastal Campus. The City disagrees in the strongest possible terms with your preliminary determination. It would have LAFCO abdicate its. obligation to ensure the logical formation of local agency boundaries. (See Gov. Code, § 56001.) It is tough to imagine a situation that calls out for LAFCO intervention more than one city providing service within another city without the city's consent. Accordingly, the City-reserving its rights to challenge the unlawful process that has been established-hereby appeals your preliminary determination, for the reasons set forth below. While City under separate cover is providing a check for the "filing fee," the payment is made under protest because the City can find no basis in state law or LAFCO policy for LAFCO to charge a "reconsideration" fee for reconsidering a preliminary statutory interpretation of the Executive Officer. 1. The City Does Not Oppose the Coastal Campus Project Itself. Initially, we must correct the record about the City's motivations. You misrepresent the City's position on the Coastal Campus project. (See pp. 1, 8.) The City does not oppose the Coastal Campus project. Rather, it opposes the Navy's proposal that another municipality provide sewer service to the Coastal Campus-despite it being in Coronado----,without the consent of Coronado. Your gratuitous insinuations (see pp. 1 and 8) that the City's concerns about the impacts of the project on the City are what is motivating its request to LAFCO is mistaken. · A PI!OFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SAN FRANCISCO SANTA ROSA SAN DIEGO Michael D. Ott September 8, 2015 Page 2 The City's position in this matter is based on the following principles, with which LAFCO should agree: • • • • 2. Coronado, not another city, should make decisions about Coronado. LAFCO has identified Coronado as the service provider for the Coastal Campus property-unsurprisingly given the Coastal Campus's presence in Coronado. (See LAFCO Resolution, dated May 5, 2014, Afflrming Coronado's Sphere of Influence.) If Imperial Beach serves the Coastal Campus, it would permanendy link part of Coronado with Imperial Beach (even if the Navy later sells the property for private development) and will fragment the full service municipality of Coronado. Two different service providers will result in two different levels of service within Coronado. Specific Areas of Reconsideration Although this is a dispute about whether LAFCO will comply with its statutory obligation under Government Code section 56133, you have conjured an administrative process where one does not exist. We can find nothing in state law or LAFCO policies that would justify the determination and appeal process that you have established. While the City has no issue with again expressing its views in writing and then being heard by the commission, two process issues are important. First, despite your efforts to establish an administrative process, the City does not believe that anything about this proceeding would subject it to the "exhaustion of administrative remedies" doctrine in a later legal proceeding. LAFCO cannot use this process to dodge its responsibility to comply with applicable law. Coronado reserves the right to raise any arguments in later legal proceedings, even those not raised herein. (We are reacting in particular to your statement that the appeal "need to ... cite the specific area(s) of reconsideration.") If you have some authority to the contrary, please advise us in sufficient time before the commission meeting so that we might be able to reconsider our position. Second, the filing fee you demand for access to the commission is unlawful. The fee you demand is for reconsideration of commission decisions on changes of organization under Government Code section 56895. It is not due here, where the City is merely asking LAFCO to comply with its statutory obligation. In order to move this process along, though, the City is paying the fee under protest, reserving all of its rights to challenge the fee's legality, and hereby asks the commission to authorize you to refund it. With those formalities out of the way, we turn to the City's "specific areas" on which it is seeking "reconsideration." A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SAN FRANCISCO SANTA ROSA SAN DIEGO Michael D. Ott September 8, 2015 Page 3 a. Government Code Section 56133 Requires LAFCO to Disapprove Imperial Beach's Proposed Provision of Sewer Service to the NBC Coastal Campus. Your preliminary determination asserts that Government Code section 56133, which requires LAFCO approval for an agency to provide "new or extended services" outside of its boundaries, does not apply. You conclude that the following two exemptions apply: • First Exception. "agreements solely involving two or more public agencies where the public service to be provided is an alternative to, or substitute for, public services already being provided by an existing public service provider and where the level of service to be provided is consistent with the level of service contemplated by the existing service provider" • Fourth Exception. "an extended service that a city or district was providing on or before January 1, 2001." We explain below that neither exception applies and that therefore LAFCO would have to disapprove any request from Imperial Beach to serve the Coastal Campus. 1. If Section 56133 Applies, LAFCO Cannot Authorize Imperial Beach to Serve the Coastal Campus Because It Is Outside of Imperial Beach's Sphere of Influence. Government Code section 56133 prohibits Imperial Beach from providing "new or extended services by contract or agreement outside its jurisdictional boundaries" unless LAFCO provides its written approval. (subd. (a).) It goes on to prohibit LAFCO from authorizing Imperial Beach to provide "provide new or extended services ... outside its sphere of influence" unless it is "to respond to an existing or impending threat to the public health or safety of the residents of the affected territory." (subd. (c).) The Coastal Campus site, being in Coronado, is outside of Imperial Beach's sphere of influence, there are no residents, and there are no known public health and safety concerns motivating the Navy's proposal. No one would argue that this exception to the LAFCO approval requirement applies. Thus, unless one of the two exceptions you cite applies, the Coastal Campus may not receive sewer service from Imperial Beach except with Coronado's consent. 11. Service to the Coastal Campus is Not Being Provided at Present and Therefore is Not Exempt under the Fourth Exemption. You assert that any expanded service that occurs pursuant to the 1967 contract is "an extended service that" Imperial Beach "was providing on or before January 1, 2001." You therefore argue that LAFCO has no power to consider the project. Your position is incorrect for three reasons. A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SAN FRANCISCO SANTA ROSA SAN DIEGO Michael D. Ott September 8, 2015 Page4 First, you read the existing service exemption too broadly. The exemption (for "an expanded service") merely grandfathers service to existing development rather than grandfathering future development on land previously served by contract. Unlike some of the other exemptions in Government Code section 56133, this exemption makes no mention of contracts or agreements, expressly applying to "an extended service" rather than to service provided under "an existing contract." We carefully reviewed the legislative history of section 56133, and we could flnd no support for the expansive reading you give the fourth exception. Under your reading, any expanded services on property served prior to 2001 would be exempt from LAFCO's purview. We do not need to make slippery slope arguments, since the absurd results of your interpretation are right in front of us: it would have the effect of grandfathering a massive 1,500,000 square foot development project that will generate orders of magnitude more sewage that the miniscule abandoned Navy development presently served by Imperial Beach. This broad reading of the Fourth Exemption has the result of limiting LAFCO's ability to ensure the logical formation of local agency boundaries. Second, even if your expansive interpretation of the Fourth Exemption is correct, you are mistaken that the 1967 agreement obligates Imperial Beach to serve the NBC Coastal Campus development. The 1967 agreement requires Imperial Beach to provide sewer service "as required by the government." However, you ignore the fact that the 1967 agreement pertained to a specific project, the Naval Radio Station. There is a vast difference between agreeing to serve a tiny outpost and serving a 1,500,000 square foot institutional facility. The only reasonable reading of the agreement is that the obligation to serve is limited to the needs of the Naval Radio Station. The initial paragraph of the agreement states that the agreement pertains to service to the Naval Radio Station and not to the property more generally. Furthermore, the handle-all-sewage language you rely upon references "the project," demonstrating that Imperial Beach's obligation to serve is limited to the Naval Radio Station project. Thus, the 1967 agreement does not require Imperial Beach to serve NBC Coastal Campus. Finally, your conclusion is premised on an invalid agreement. Imperial Beach lacks the legal authority to provide sewer service outside of its boundaries. In general, cities cannot provide services outside of their corporate boundaries in the absence of constitutional or statutory authorization. (See City ofOakland v. Brock (1937) 8 Ca1.2d 639, 641.) Cities are specifically authorized to provide certain other utility services, including water and electrical services but not sewer service, outside of their boundaries, but they cannot do so within the boundaries of another city without the city's consent. (See Cal.Const., art. XI,§ 9.) But our research disclosed no statutory provision that allows a city to provide sewer service outside of its boundaries. We did fmd provisions that authorize extraterritorial operation of sewer utilities, but only to the extent necessary to supply its residents with sewer service. (See, e.g., Pub. Util. Code,§ 10004.) A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SAN FRANCISCO SANTA ROSA SAN DIEGO Michael D. Ott September 8, 2015 Page 5 The lack of legal authority provides yet another ground to compel LAFCO to exercise its responsibility under section 56133 or otherwise to order Imperial Beach not to serve the Coastal Campus without the consent of Coronado. 111. The Navy is Not a "Public Agency" Under the First Exception and Therefore the First Exception Does Not Apply. You take the position that the flrst exemption "may" apply. Coronado had previously argued that the fust exception is inapplicable because federal agencies are not among the agencies deflned as "public agencies" under Government Code section 56070. You disagree noting that Cortese-Knox's definitions apply "[u]nless the provision or context otherwise requires .... " (Gov. Code, § 5601 0.) You then go on to explain your view that section 56133 was "intended to reserve LAFCO's review for those out-of-boundary service agreements that are likely to implicate the purposes for which LAFCO was formed" and that agreements between public agencies are not one of them "because [they] are subject to NEPA and CEQA." Therefore, you conclude that the context may require that "agency" as used in section 56133 "include federal agencies which are otherwise immune from LAFCO's authority." Initially, it is unclear whether you have made a determination on this particular issue. You indicate that the primary basis for your conclusion is the Fourth Exemption, and you also indicate that the First Exception "may be applicable." In any event, your tentative preliminary determination is mistaken. First, LAFCOs were not created to address the issues that CEQA and NEPA address. LAFCOs exist to ensure "the logical formation and determination of local agency boundaries" so as to encourage "orderly growth and development." (See Gov. Code,§ 56001.) As we noted above, one would be hard pressed to fmd a mote appropriate circumstance for LAFCO intervention than, as here, one city providing service within another city. Second, the fact that the federal government is involved has nothing to do with this question. While the federal government may not be regulated by LAFCO, the local agencies that might serve it-such as Imperial Beach as is proposed here-are. Third, the First Exemption exempts only agreements between public agencies where one public agency agrees to provide a "public service" that the contracting public agency ("the existing service provider") already has the authority to provide. It is unlikely that the federal government would ever have the authority to provide "public services." So, it is unsurptising that federal agencies are not covered by the exemption. For all these reasons, Coronado believes that LAFCO is compelled by law to order Imperial Beach not to serve the Coastal Campus without the consent of Coronado. The foregoing implies that Coronado intends to use every means at its disposal to ensure that Coronado decides how sewer service is provided in Coronado. But, in order to ensure that the commission may meet in closed session, the City hereby "threatens litigation" A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SAN FRANCISCO SANTA ROSA SAN DIEGO ' ' Michael D. Ott September 8, 2015 Page 6 explicitly. We look forward to continuing discussions with you and the commission so that this matter can be resolved without the need for legal proceedings. Very truly yours, ~~ ::2---· John Bakker Attorney at Law c: Andy Hall, City Manager, Imperial Beach Captain Stephen Barnett, Commanding Officer, Naval Base Coronado JB:jb 2515602.2 A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SAN FRANCISCO SANTA ROSA SAN DIEGO ITEM 9 A/B ATTACHMENT 6 Provision of Wastewater Service to the Proposed Coastal Campus on the Naval Base Coronado Silver Strand Training Complex – South (NBC SSTC-S) Preliminary Determination Naval Base Coronado – Coastal Campus Wastewater Service Agreement August 7, 2015 Attachment 6: Preliminary Determination 9A PRELIMINARY DETERMINATION NAVAL BASE CORONADO- COASTAL CAMPUS WASTEWATER SERVICE AGREEMENT August 7, 2015 98 SUMMARY OF PRELIMINARY DETERMINATION Background The Department of the Navy (Navy) is pursuing the development of a Coastal Campus on the Naval Base Coronado (NBC) Silver Strand Training Complex - South (NBC SSTC-S) as part of a Special Warfare Command Operations project. The acreage for the NBC SSTC-S consists of 548 .acres of land, and the total footprint within NBC SSTC-S for the Coastal Campus project is approximately 169.4 acres. This Coastal Campus project is designed to respond to base training activities, operations, facilities, and expansion needs to meet a "congressional mandate" for military readiness . Construction of the Coastal Campus is proposed over a 10-year period and will add nearly 1.5 million square feet of facilities within the corporate limits of Coronado, just north of Imperial Beach on the Silver Strand. The Coastal Campus will cost approximately $700 million and is considered an integral part of the Department of Defense's ongoing Global War on Terrorism, following the events of September 11, 2001. A map of the NBC SSTC-S site is attached (refer to vicinity map at end of report). Although the Coastal Campus site is located within the corporate limits of Coronado, it is currently receiving wastewater service under an existing service agreement between the City of Imperial Beach and the Navy. On April 9, 2015, the Executive Officer of the San Diego Local Agency Formation Commission (LAFCO) determined that the ongoing provision of sewer service by the City of Imperial Beach to the Coastal Campus is exempt from LAFCO purview per Government Code Section 56133(e). Subsection (e) of Government Code Section 56133 exempts from LAFCO purview extended services that a city or district was providing on or before January 1, 2001. The existence of the contractual service agreement was recently documented by the City of Imperial Beach and has been in place between Imperial Beach and the Navy since 1967. The written agreement specifies that Imperial Beach "... shall provide sanitary sewerage services as required by the Government" and the City "shall receive, transport, treat and dispose of all sewage originating at the project in such amounts as the Government desires to release into the City's system ... " Since the intensity of land uses within NBC will increase with the Coastal Campus project, the City of Coronado is concerned about potential offsite impacts. Coronado believes that the City's concerns were not adequately addressed during the federal Environmental Impact Statement (EIS) process and has turned to LAFCO to address 1 this issue by exerctsmg discretionary authority over the provtston of wastewater services. LAFCO's Executive Officer indicated that provision of sewer services appears to be exempt from LAFCO purview, but would reconsider this associated determination after providing the two cities and Navy an opportunity to submit comments. In response to the Executive Officer's request for comments, the Commanding Officer of the NBC issued a Jetter on June 4, 2015, indicating the Department of the Navy supported the Executive Officer's determination that the provision of sewer service to the NBC Coastal Campus site is exempt from LAFCO's purview. The Navy's Commanding Officer further stated that the existing historic agreement to provide wastewater services by the City of Imperial Beach to the Navy will remain in effect, and the City of Imperial Beach will simply continue to provide wastewater services as required by the Government in such amounts as the Government desires to release in accordance with the wastewater service agreement in place since 1967. As such, the Navy supports the Executive Officer's decision that the NBC Coastal Campus wastewater service is exempt from LAFCO purview because the extended service has been provided to the Federal Government before January 1, 2001. On March 30, 2015, the City Imperial Beach informed LAFCO that the City of Imperial Beach is willing to continue providing service to the Navy and that authorization for the services has been verified in the official City Council meeting minutes in 1967 authorizing the Mayor to execute the agreement and through several amendments to the agreement from that date forward . On May 26, 2015, the City of Imperial Beach changed this position and stated that Imperial Beach recognizes the authority of LAFCO to determine the appropriate utility service boundaries for municipalities and would not provide services beyond the current service levels without authorization from LAFCO. On May 1, 2015 and July 7, 2015, the City of Coronado reiterated its request that LAFCO undertake review of the provision of sewer services to the Coastal Campus project. The City also requested that LAFCO determine that the City of Imperial Beach cannot provide wastewater services without LAFCO approval because the NBC Coastal Campus project is within Coronado's city limits and outside Imperial Beach's city limits and sphere of influence. Lastly, Coronado requests that LAFCO find that the City of Coronado (and not the City of Imperial Beach) is the proper provider of wastewater services to the Proposed Sewer Project. The Executive Officer indicated that a meeting would be scheduled, if necessary, after reviewing the comments provided by Imperial Beach, Coronado, and the Navy. The local agencies and Federal Government were also informed that, if concurrence was reached by all parties regarding the Executive Officer's preliminary determination, no further LAFCO action would be taken. However, if any of the parties disagreed with the preliminary determination, then a subsequent appeal could be docketed for consideration by the full Commission (LAFCO). An appeal would need to be made in writing and cite the specific area(s) of reconsideration. A filing fee of $1,030 would also be necessary. 2 Summary of Executive Officer's Preliminary Determination In summary, Coronado's argument that LAFCO purview is mandatory in order for the City of Imperial Beach to continue providing sewer service to the NBC Coastal Campus site is belied by the plain language of subdivision (e) of Government Code Section 56133. Subdivision (e) states that section 56133 does not apply to an extended service that a city or district was providing on or before January 1, 2001. That section further exempts from LAFCO review "contracts or agreements solely involving two or more public agencies where the public service to be provided is an alternative to, or substitute for, public services already being provided by an existing public service provider and where the level of service to be provided is consistent with the level of service contemplated by the existing service provider." In the case of the NBC Coastal Campus site, sewer service has been provided via a service agreement between the City of Imperial Beach and the Navy since 1967. The executed service agreement, as last amended in 1991, states that the City of Imperial Beach "... shall provide sanitary sewerage services as required by the Government" and that the City of Imperial Beach "... shall receive, transport, treat and dispose of all sewage originating at the project in such amounts as the Government desires to release into the City's system ... " The fact that the volume of sewage is likely to increase given the development of the Coastal Campus does not alter the conclusion that the provision of sewer service to the Coastal Campus site is exempt from LAFCO purview based on the existence of a pre-2001 service agreement. The statute also contains an exception for when "the level of service to be provided is consistent with the level of service contemplated by the existing service provider." Given that the City of Imperial Beach agrees to receive, transport, treat, and dispose of sewage generated by the Navy via the 1967 sewer agreement, the existence of the 1967 agreement represents evidence that both Imperial Beach and the Navy have contemplated a potential level of service increase, and that Imperial Beach is able to provide and wishes to provide increased services. This fact would enable LAFCO to determine that the level of service associated with the NBC Coast Campus project is consistent with the level of service contemplated by Imperial Beach pursuant to Government Code Section 56133(e). Moreover, Government Code Section 56010 also states that the definitions provided for the Cortese-Knox-Hertzberg Act apply "[u]nless the provision or context otherwise requires ... " Because section 56133 is intended to reserve LAFCO's review for those out-of-boundary service agreement which are likely to implicate the purposes for which LAFCO was formed; and because government agencies - whether federal, state or local - are subject to NEPA and CEQA and exist to address concerns like those which animated the creation of LAFCOs, the San Diego LAFCO concludes that the context of section 56010 requires that the word "agency'' as used here include federal agencies which are otherwise immune from LAFCO's authority under the Cortese-Knox-Hertzberg Act. In summary, given the fourth exemption contained in Government Code Section 56133(e) for an extended service provided on or before January 1, 2001, and/or the first 3 exemption involving two or more public agencies as described above, the Executive Officer's April 9, 2015 determination is hereby reaffirmed. This means the ongoing provision of sewer service by Imperial Beach to the NBC Coastal Campus project site is exempt from LAFCO purview. Below are the pertinent facts and conclusions regarding the provision of wastewater service to the NBC Coastal Campus site. 1. Government Code Section 56133(e) states that LAFCO's contractual service agreement authority does not apply to an extended service that a city or district was providing on or before January 1, 2001. It further exempts from LAFCO review "contracts or agreements solely involving two or more public agencies where the public service to be provided is an alternative to, or substitute for, public services already being provided by an existing public service provider and where the level of service to be provided is consistent with the level of service contemplated by the existing service provider." That language also supports an exemption here as detailed below. 2. The City of Imperial Beach executed a written contract/agreement with the Navy in 1967 specifying that Imperial Beach "... shall provide sanitary sewerage services as required by the Government" and the City "shall receive, transport, treat and dispose of all sewage originating at the project in such amounts as the Government desires to release into the City's system ... " Sewer service has accordingly been provided by Imperial Beach to the Navy since 1967. 3. The 1967 contract was last amended in 1991 and incorporates the provision requiring Imperial Beach to provide sewerage service to the Navy at levels required and desired by the Federal Government. The 1967 contract, as amended, does not appear to contain a termination, amendment, or opt-out provision for either Imperial Beach or the Navy. 4. On March 30, 2015, Imperial Beach City Manager Andy Hall notified LAFCO's Executive Officer that Imperial Beach is willing to continue providing sewage service to the Navy and that authorization to provide service had been verified in the official City Council meeting minutes in 1967 authorizing the Mayor to execute the sewage agreement and through several amendments to the agreement from that date forward. The latest amendment to the agreement is dated and signed September 18, 1991, and Imperial Beach states that it has been operating in accordance with the agreement. 5. On April 9, 2015, LAFCO's Executive Officer informed Coronado, Imperial Beach, and the Navy that the provision of sewage service to the NBC Coastal Campus site is exempt from LAFCO purview because documentation exists showing that sewer service has been provided by Imperial Beach to the Navy since 1967. 6. On May 1, 2015 and July 7, 2015, the City of Coronado's then-legal counsel (Burke, Williams & Sorenson, LLP) submitted correspondence requesting reconsideration of the above determination and requested that LAFCO assume jurisdiction for the provision of 4 sewer service to the NBC Coastal Campus site pursuant to Government Code Sections 56375(p) and 56133. 7. On May 4, 2015, Imperial Beach's legal counsel Jennifer Lyon informed the Executive Officer that her law firm (McDougal, Love, Eckis, Boehmer & Foley) will not be representing Imperial Beach on the NBC Coastal Campus matter because the law firm also represents the City of Coronado. B. On May 26, 2015, Imperial Beach City Manager Andy Hall notified LAFCO's Executive Officer that Imperial Beach will not expand wastewater service beyond the current service levels unless otherwise authorized by LAFCO. 9. On June 4, 2015, the Department of the Navy submitted written documentation supporting the determination that the provision of sewer service to the NBC Coastal Campus is not subject to LAFCO purview and that the proposed Coastal Campus project is consistent with the existing historic 1967 agreement between Imperial Beach and the Navy. Conclusions and Recommendations 1. Government Code Section 56133(e) exempts from LAFCO purview extended services that a city or district was providing on or before January 1, 2001 and further exempts from LAFCO review "contracts or agreements solely involving two or more public agencies where the public service to be provided is an alternative to, or substitute for, public services already being provided by an existing public service provider and where the level of service to be provided is consistent with the level of service contemplated by the existing service provider." That language also supports an exemption here as detailed below. A contractual service agreement was executed between the City of Imperial Beach and the Navy beginning in 1967 providing the Navy with contractual rights for sewage treatment, transport, and disposal services from Imperial Beach as required and desired by the Navy. Sewer service has accordingly been provided by Imperial Beach to the Navy since 1967. 2. The San Diego LAFCO only has those powers which are specifically granted to it by statute, and does not have authorization to assume contractual service agreement authority for extended services exempted by Government Code Section 56133(e); therefore, based on the existence of the 1967 contractual service agreement between Imperial Beach and the Navy, the Executive Officer's April 9, 2015 determination concluding that the provision of sewer service to the Navy is exempt from LAFCO purview pursuant to Government Code Section 56133(e) is reaffirmed. 3. The City of Imperial Beach City Manager's statement that Imperial Beach will not expand wastewater service beyond current levels represents a contractual and legal matter between Imperial Beach and the Navy, and not LAFCO. LAFCO has no authorization under State Law to assume jurisdiction regarding this contract issue, s because the 1967 wastewater service agreement is exempt from LAFCO purview per Government Code Section 56133(e). 4. Since Imperial Beach may not have legal counsel representation regarding this contractual service issue due to a conflict of interest with its current legal counsel, it is recommended that the City obtain outside legal counsel to avoid a potential breach of contract issue with the Navy. 5. In the event that wastewater service is discontinued through the lawful termination of the 1967 wastewater service agreement between Imperial Beach and the Navy, then LAFCO purview over a subsequent new agreement may be required pursuant to Government Code Section 56133. However, since the NBC Coastal Campus site is outside of the corporate limits of Imperial Beach and its sphere of influence, LAFCO approval for a contractual agreement may be problematic because Government Code Section 56133(b) requires that the Commission may authorize a city or district to provide new or extended services outside its jurisdictional boundaries, only if the territory is within the sphere of influence of the local agency and is in anticipation of a later change of organization (e.g., annexation). Given that the NBC Coastal Campus contract territory is within the Coronado city limits, it is unlikely that the territory would qualify for inclusion in Imperial Beach's sphere of influence, unless the Commission adopted overlapping sphere designations for both Imperial Beach and Coronado. DISCUSSION: NAVAL BASE CORONADO (NBC): CONTRACTUAL WASTE WATER SERVICE Naval Base Coronado Coastal Campus In 1997, Naval Base Coronado (NBC) was created, incorporating and consolidating eight separate naval installations under one Commanding Officer. Today, NBC comprises the following installations in San Diego and Los Angeles Counties: Naval Air Station North Island (NASNI); Naval Amphibious Base (NAB) Coronado; the Silver Strand Training Complex (SSTC), formerly known as the Naval Radio Receiving Facility; Naval Outlying Landing Field Imperial Beach (NOLFIB); Naval Auxiliary Landing Field; San Clemente Island (NALF SCI); Camp Michael Monsoor (CMM); Remote Training Site Warner Springs; and Camp Morena. These facilities encompass more than 57,000 acres and make NBC the largest command in the southwest region of the U.S. employing over 36,000 military and civilian personnel. NBC accounts for over 30% of the Region's total workforce, and represents the largest workforce in San Diego County. The Navy is moving forward with construction of a $700 million Coastal Campus on the south end of the Silver Strand to support special warfare training. The Global War on Terrorism, following the events of September 11, 2001, signaled the need for, and ultimately led to, an increase in the demand for Special Operations Force (SOF) capabilities, including Naval Special Warfare, the maritime component of the U.S. Special Operations Command (USSOCOM). The Navy was directed to support an increase in Special Warfare Operators or Sea, Air, and Land (SEAL) team personnel 6 and to develop riverine (river-type environments) warfare capabilities. The Naval Surface Warfare Command (NSWC) experienced substantial growth to meet the global operational demands for special operatives, which resulted in the need for new facilities to support logistics, operations, training, and administration. The Navy is accordingly pursuing the Coastal Campus as part of a Special Warfare Command Operations project to respond to base training activities, operations, facilities, and expansion needs to meet what the Navy describes as a "congressional mandate" for military readiness at Naval Base Coronado. Construction is proposed over a 10-year period and will add nearly 1.5 million square feet of facilities just north of Imperial Beach. The site is home to a World War 11-era bunker that would be demolished to make way for construction. This project allows the Navy to create a state-of-the-art campus that meets the evolving needs of Naval Special Warfare Command. It will consolidate training and operational activities to support growth of special warfare forces on the West Coast and maintain the required levels of operational readiness. The acreage for Naval Base Coronado Silver Strand Training Complex - South (NBC SSTC-S) comprises 548 acres of land. The total footprint within NBC SSTC-S for the Coastal Campus project is approximately 169.4 acres. This Coastal Campus project will adjoin communities within Coronado and Imperial Beach. The City , of Coronado is concerned about this project and has asked the Department of Navy to partner with surrounding communities and take a responsible, pro-active approach to the proposed project and associated environmental impacts. The Navy recently completed an Environmental Impact Statement (EIS) for the Coastal Campus project. The Department of the Navy issued a Record of Decision (ROD) for the EIS for the NBC Coastal Campus on June 12, 2015. The purpose of the campus is to provide adequate facilities to support future growth of NSWC on the west coast and maintain the required levels of operational readiness of special warfare forces, as mandated by Section 167 of Title 10 U.S.C. After weighing the strategic, operational, and environmental consequences of the proposed action, the Department of the Navy announced its decision to support the current and future operations readiness of NSWC personnel by constructing, operating, and maintaining the Coastal Campus at the Silver Strand Training Complex - South (SSTC-South), as set out in Alternative 1 of the Final EIS for the NBC Coastal Campus. Implementation of Alternative 1 will indude design and construction of logistical support buildings, equipment use and maintenance training facilities, dassroom and tactical skills instruction buildings, storage and administrative facilities, utilities, fencing, roads, and parking. A new controlled entry point would be provided for immediate access to/from State Route 75 and Building 99, a World War 11-era bunker eligible for listing in the National Register of Historic Places (NHRP), would be demolished to facilitate campus construction. The ROD, signed on June 12, 2015, by Steven R. Iselin, Principal Deputy Assistant Secretary of the Navy (Energy, Installations and Environment) can be found at: www.NBCCoastaiCampusEIS.com. It has also been published in the Federal Register. 7 The ROD identifies all the alternatives that were considered and analyzed in detail, describes applicable mitigation measures, and discusses relevant factors considered by the DON in making its decision. In addition, the ROD describes public involvement conducted as part of the project and provides a response to comments that were received on the Final EIS. The publication of the ROD comes after a 30-day wait period that followed the release of the Final EIS on April 3, 2015. Various federal, state, and local agencies, and other interested individuals and organizations have been notified that the ROD has been published. Coronado is concerned about traffic impacts on all major arterials leading to and from the NBC site, as well as ongoing impacts from existing naval bases. Coronado cites noise from traffic and aircraft activities at North Island and associated degraded air quality (residual soot from traffic, truck and airplane exhaust). Impacts also include emergency support services such as fire and police for enforcing traffic laws and responding to incidents; and diminishing public access along coastal shorelines due to training activities and endangered biological resources. Coronado states that the increased impacts to these already stressed resources due to the Coastal Campus project will undoubtedly result in additional significant, and adverse cumulative environmental impacts to the community. The City of Coronado believes the congressionally mandated needs and directives of the Navy will lead to increased personnel, facilities, activities, training, and infrastructure within a relatively small geographic area, and within the City of Coronado. While the City of Coronado's concerns are varied, it has recently focused some attention on the existing contractual sewer service agreement between the City of Imperial Beach and the Department of Navy. Consequently, Coronado has recently learned of LAFCO's contractual service agreement authority under Government Code Section 56133, and is asking the San Diego LAFCO to assume jurisdiction to review and approve the agreement. Provision of Sewer Service to Naval Base Coronado Coastal Campus Sewer service has been provided since 1967 to the SSTC-South area via an out-ofagency agreement between the City of Imperial Beach and the Naval Facilities Engineering Command. A copy of the agreement is attached. As previously stated, the Coastal Campus project is located within the Coronado corporate limits, but has been receiving sewer service from Imperial Beach because of the proximity of Imperial Beach infrastructure to the site. The last amendment to the sewer service contract with Imperial Beach was in 1991 and no further amendment is proposed for service to the new facilities, suggesting no contract is to be approved that could trigger LAFCO review under Government code section 56133 even if exceptions to that section did not apply here, as LAFCO has concluded. At its peak, the City of Imperial Beach provided sewer service to four dwellings and one guard house. The dwellings and guard house are also physically located in the City of Coronado, and outside of both the City of Imperial Beach and its sphere of influence. 8 The executed service agreement, as amended in 1991, states that the City of Imperial Beach must provide sanitary sewerage services "as required by the Government" and "receive, transport, treat and dispose of all sewage originating at the project in such amounts as the Government desires to release into the City's system and in a manner and by such means as will constitute no hazard to public health.'' The fact that sewer service has historically been provided by Imperial Beach to the Navy for limited uses within Coronado does not appear to void the Navy's contractual rights to receive additional wastewater treatment, transport, and disposal services from Imperial Beach. The scope of the exception to section 56133 quoted above also turns on the level of service contemplated by Imperial Beach and/or the Federal Government, as explained above, the level of service required here is within that scope. Wastewater service is proposed to be provided to the Coastal Campus site via the existing sewer service agreement by the City of Imperial Beach. Sewage would flow to the City of Imperial Beach's 6-inch wastewater line south of SSTC-South. A new wastewater conveyance system along with a wastewater storage facility and a proposed 450 gallon per minute pump station would be included on-site. A new 6-inch-diameter sewer force main would be proposed extending approximately 4,000 feet from the center of the existing Wullenweber Antenna Array within Hooper Boulevard to the connection to the existing Imperial Beach system. Operational redundancy during emergency conditions would be provided by equipping the new pump station with an emergency storage facility capable of accommodating up to 6 hours of average sewer inflow. Off-site improvements to the City's system may be required to accommodate the additional wastewater demand. It is assumed that the City's entire sewer main to Pump Station 5 (east of the intersection of 19 Dahlia Avenue and Seacoast Drive) would be replaced. This would include upgrades to the sewer lines within Silver Strand Boulevard, Calia Avenue, and Seacoast Drive to Pump Station 5. Improvements to the sewer line within Imperial Beach Boulevard from 4th Street to East Lane may also be required. The proposed improvements would increase the 6-inch line to an 8-inch or 10inch line. 9 STAUTORY REQUIREMENTS: PROVIDING SERVICES OUTSIDE JURISDICTIONAL BOUNDARIES The Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000 (formerly the Cortese-Knox Local Government Reorganization Act of 1985) (§ 56000 et seq.) was enacted to encourage planned, well-ordered, efficient urban development patterns with appropriate consideration of preserving open-space and agricultural lands within those patterns, and to discourage urban sprawl and encourage the orderly formation and development of local agencies based upon local conditions and circumstances. LAFCOs are an administrative body within each county that oversee urban development and have only those express (or necessarily implied) powers which are specifically granted to them by statute. Most of LAFCO's powers are set forth in Government Code Section 56375. Pertinent to the situation involving the Cities of Imperial Beach and Coronado, and the Navy is subdivision (p) of section 56375, stating that a LAFCO has the power and duty "to authorize a city or district to provide new or extended services outside its jurisdictional boundaries pursuant to Section 56133." Section 56133 provides, in pertinent part: (a) A city or district may provide new or extended services by contract or agreement outside its jurisdictional boundaries only if it first requests and receives written approval from the [LAFCO] in the affected county. (b) The Commission (LAFCO) may authorize a city or district to provide new or extended services outside its jurisdictional boundaries but within its sphere of influence in anticipation of a later change of organization. (c) The LAFCO may authorize a city or district to provide new or extended services outside its jurisdictional boundaries and outside its sphere of influence to respond to an existing or impending threat to the public health or safety of the residents of the affected territory if both of the following requirements are met: (1) The entity applying for the contract approval has provided the [LAFCO] with documentation of a threat to the health and safety of the public or the affected residents. (2) The [LAFCO) has notified any alternate service provider . . . that has filed a map and a statement of its service capabilities with the [LAFCO]. (d) The executive officer of the LAFCO, within 30 days of receipt of a request for approval by a city or district of a contract to extend services outside its jurisdictional boundary, shall determine whether the request is complete .... When the request is deemed complete, the executive officer shall place the request on the agenda . . . . [LAFCO) or executive officer shall approve, disapprove, or approve with conditions the contract for extended services. 10 Section 56133 concludes with subdivision (e), which describes the circumstances in which the section (56133) does not apply. For example, local agencies are not required to seek LAFCO approval for the following: • Contracts or agreements solely involving two or more public agencies where the public service to be provided is an alternative to, or substitute for, public services already being provided by an existing public service provider and where the level of service to be provided is consistent with the level of service contemplated by the exiting service provider. • Contracts for the transfer of non-potable or non-treated water. • Contracts or agreements solely involving the provision of surplus water to agricultural lands and facilities, including, but not limited to, incidental residential structures, for projects that serve conservation purposes or that directly support agricultural industries. However, prior to extending surplus water service to any project that will support or induce development, the city or district shall first request and receive written approval from the [LAFCO) in the affected county. •Extended service that a city or district was providing on or before January 1, 2001. •A local publicly owned electric utility ... providing electric services that do not involve the acquisition, construction, or installation of electric distribution facilities by the local publicly owned electric utility, outside of the utility's jurisdictional boundaries." REASONS WHY BOUNDARIES SERVICES ARE PROVIDED OUTSIDE LOCAL AGENCY Local agencies provide services outside of their jurisdictional boundaries for various reasons. The most common situation involves the extension of public water or wastewater service to individual properties to resolve potential health problems caused by failing onsite wells or subsurface septic systems. These types of service extensions are usually made on an emergency basis and then followed up with a subsequent annexation after the emergency situation is resolved. However, annexation sometimes does not occur, especially if the affected property is not contiguous to a service provider's jurisdictional boundaries. In other cases, a property may be within the boundaries of a city or district that is unable to extend public services, so services may be provided by a different agency that is nearby. There are also other examples of outof-agency services, where local agencies extend infrastructure to serve new development. This type of service extension is less common. When an out-of-agency service arrangement is necessary, the service provider typically requires that the service recipient sign a binding legal document called a contractual service agreement that spells out the terms of the service, utility rates, surcharges, contract amendment provisions, and conditions of termination and annexation, etc. 11 Government Code Section 56133 establishes the requirements and LAFCO purview for out-of-agency contractual service arrangements. Section 56133 was first enacted in 1993 as part of Assembly Bill No. 1335 (Gotch). Senate analysis of the bill explained that regulating city and special district boundaries usually also regulate where a city or district provides services. AB 1335 was in response to complaints that some local agencies circumvented the Legislature's original jurisdictional intent by merely signing contracts to serve outside their boundaries without ever changing their boundaries. Enactment of Assembly Bill No. 1335 required cities and districts to first obtain LAFCO approval before they could contract or agree to provide new or extended services outside their boundaries, unless the service was exempt from LAFCO purview. The contractual service provisions contained in AB 1335 were later incorporated into a major re-write of the LAFCO statutes resulting in the enactment of the Cortese-KnoxHertzberg Local Government Reorganization Act of 2000 (CKH Act). Exemptions As with most all governmental regulations, LAFCO statutes contain statutory exemptions for special situations. With respect to LAFCO's contractual service agreement authority in State Law, Government Code Section 56133 (e) currently lists five exemptions. Some of the exemptions cover existing contracts and agreements, while other exemptions cover future ones. Among the first questions that should be asked regarding any out-of-agency service request are: (1) Are services already being provided to the subject territory? (2) Is there a written contract covering the service extension? (3) If a written contract exists, what is the date the out-of-agency services were provided and by whom? For example, if a contractual service was provided on or before January 1, 2001, then LAFCO's contractual service authority per Government Code Section 56133 does not apply. This exemption date is intended to grandfather certain service agreements that predated LAFCO's contractual service agreement purview. It also prevents the re-regulation of out-of-agency services that have historical and documented legacy. After these basic questions are answered, then it is advisable to review the other situations covered by the statutory exemptions. A second statutory exemption is for contracts or agreements solely involving two or more public agencies where the public service to be provided is an alternative to, or substitute for, public services already being provided by an existing public service provider. These service arrangements are very common in San Diego County. They occur when one local agency is unable to serve territory within its boundaries and contracts with another local agency to deliver services. The Legislature exempts this type of arrangement because it does not change the area in which authorized services may be provided. Instead, it allows for alternative service arrangement that may be more efficient. In these situations, it is also necessary to determine that the level of service to be provided is consistent with the level of service contemplated by the exiting service provider. Again, the rationale for this exemption is that if one of the agencies has authority to provide services, but for reasons of service efficiency or costeffectiveness, decides to outsource the provision to another entity, then LAFCO should not be in a position to hamper associated efficiencies. 12 Government Code Section 56133(e) also exempts contracts for the transfer of nonpotable or non-treated water, as well as contracts or agreements solely involving the provision of surplus water to agricultural lands and facilities. This exception applies to projects that also serve conservation purposes or ones that directly support agricultural industries. However, prior to extending surplus water service to any project that will support or induce development, the local agency must first request and receive written approval from the LAFCO in the affected county. The last exemption applies to a local, publicly owned, utility providing electric services. For this exception a determination must also be made by LAFCO that the electric service agreement does not involve the acquisition, construction, or installation of electric distribution facilities by the local, publicly owned, electric utility outside of the utility's jurisdictional boundaries. If any of the above frve exceptions exist, then LAFCO purview is not exercised with respect to out-of-agency contractual service agreements. Because there are frequently unique circumstances related to each potential exception situation, local agency officials are encouraged to contact LAFCO staff to obtain confirmation as to the applicability of the exceptions. To make an informed determination, LAFCO staff will usually conduct site visits and review associated documentation, such as executed service contracts. Upon conducting a preliminary review, LAFCO staff can usually determine whether LAFCO oversight is necessary or subject to an exemption per Government Code Section 56133(e). LAFCO Purview If a contractual service agreement is not exempt from LAFCO purview per Government Code Section 56133(e), then local agencies must first request and receive approval from LAFCO before executing the service contract. LAFCO may approve, disapprove, or approve the contractual agreement subject to conditions. Two specific determinations must be made in order for LAFCO to be able to approve any agreement. These determinations are based on whether the subject territory is located within or outside of the sphere of influence of the proposed service provider. If service contract territory is outside of a local agency's jurisdictional boundaries, but within the agency's sphere of influence, then LAFCO may authorize the provision of services "in anticipation of a later change of organization." LAFCOs throughout California have latitude with respect to implementing this provision. In the case of the San Diego LAFCO, the Commission requires that a jurisdictional change of organization application (e.g., annexation application) be submitted with the contractual service agreement. This enables the Commission to make a clear determination that the service agreement is "in anticipation of a later change of organization." This practice works well in San Diego County and all local agencies in our county appear to be in agreement with it. 13 If the service contract territory is outside a local agency's jurisdictional boundary and outside of its sphere of influence, then LAFCO may only approve the service contract/agreement if the services are provided in response to an existing or impending threat to the public health or safety of the residents of the affected territory, and alternate service providers have been notified. If these conditions are present, then the request for the service extension may be approved or approved with conditions. For the request to be approved, the subject local agency would be required to provide LAFCO "with documentation of a threat to the health and safety of the public or the affected residents". The most common type of health and safety documentation would be a written statement from the County Department of Environmental Health confirming that an onsite septic system could not be feasibly repaired and that a connection to a public sewer system is necessary to resolve existing or impending health problems. The key here is the threat to health and safety of the public must be existing or impending. A contractual service agreement, for example, that is proposed in order to facilitate or serve new development does not fall within the meaning of "existing" or "impending" threat to public health and safety. Therefore, LAFCO could not approve a contractual service agreement per Section 56133 for a health and safety issue that is not present or not about to occur. REQUEST FOR LAFCO JURISDICTION LAFCO Determination On September 18, 2014, the City of Coronado contacted the San Diego LAFCO staff and requested that LAFCO assume jurisdiction over the provision of sewer services (by Imperial Beach) to the Coastal Campus site. When Coronado first brought this matter to LAFCO staffs attention, neither Imperial Beach staff, nor the Navy's Coastal Campus project staff had in their possession a copy of the sewer service agreement that had been executed in 1967 between Imperial Beach and the Navy. LAFCO staff accordingly informed Coronado and the Navy that unless there was a service contract/agreement in effect, LAFCO purview may be required. This determination was transmitted to the Department of Navy as part of the EIS process being undertaken on the Coastal Campus project. Several months after that determination was made during the EIS process, the Navy and Imperial Beach located within their archives, a copy of a 1967 wastewater agreement and associated amendments between Imperial Beach and the Navy. On December 9, 2014, the Executive Officer determined that LAFCO does not have purview over the provision of sewer service to the Coastal Campus due to the 1967 sewer service agreement between Imperial Beach and the Navy. Since Coronado disagreed with the December 9th determination, a process was developed and followed in order to provide affected agencies an opportunity to request reconsideration. The reconsideration process and response to comments received from Coronado are summarized below. 14 Reconsideration Process 1. Coronado Request for Consideration: Coronado submitted a written request that LAFCO assume discretionary authority over the provision of sewer service to the NBC site. Refer to the May 1, 2015 letter submitted by Coronado. 2. Subject Agencv Response: An opportunity was provided for subject agencies and the Navy to respond to whether the provision of sewer service to the NBC site is subject to or exempt from LAFCO purview per Government Code Section 56133. This step has been completed and Imperial Beach and the Department of Navy provided written comments on June 2, 2015 (letter dated May 26, 2015) and June 4, 2015, respectively. Refer to attached letters. 3. Subject Agency Review and Comment: Another opportunity was provided for subject agencies and the Navy to review and comment on responses provided to LAFCO staff. Thirty days (30-days) will be provided for this step. Refer to attached letter from Coronado, dated July 7, 2015. 4. Preliminary Determination: Preparation of a LAFCO staff report containing a preliminary staff determination. The report will be forwarded to all parties. 5. Subject Agency Meeting: A meeting will be scheduled, if necessary. 6. Concurrence: If subject agencies and the Navy concur with the LAFCO staff determination, then no further action will be taken. 7. Lack of Concurrence: Subject agencies and the Navy may appeal the staff determination by filing a request to be heard by the Commission. The request must specify and discuss the areas of disagreement and include a $1,030 reconsideration filing fee paid prior to docketing. Response to Comments On May 1, 2015, the law firm then representing Coronado (Burke, Williams, & Sorensen, LLP) requested that LAFCO staff reverse its determination and conclude that the provision of sewer service to the Coastal Campus is subject to LAFCO purview. Below is a summary and response to the specific issues contained in Coronado's request for reconsideration. • Applicabilitv of Fourth Exemption: Coronado states that the San Diego LAFCO may not rely on the Government Code section 56133(e) to exempt the provision of sewer service to the Coastal Campus from LAFCO purview. Coronado states that LAFCO staff concluded that the fourth exemption in Government Code Section 56133(e) is applicable because extended service has been provided to the Federal Government before January 1, 2001. Coronado believes that this exemption cannot be properly relied on because the San Diego LAFCO has not included the exemption in its adopted LAFCO Procedures Guide. Among other things, Coronado believes that the Cortese15 Knox-Hertzberg Local Government Reorganization Act of 2000 (CKH Act), requires each LAFCO to establish written policies and procedures and that each LAFCO must thereafter exercise its powers in a manner consistent with those policies and procedures (Government Code Section 56375). Accordingly, the San Diego LAFCO's Procedures Guide explains four of the five exemptions set forth in Section 56133(e), but does not list the fourth exemption. Having failed to adopt this fourth exemption in its Procedures Guide, Coronado believes that the San Diego LAFCO may not now rely on it to decline to review a city's contract for sewer services outside its boundaries. LAFCO Staff Response: Coronado incorrectly interprets the CKH Act regarding the adoption of the LAFCO Procedures Guide. The Preface to the Procedures Guide clearly indicates that the guide is intended to serve as general information only and that, for more detail, the referenced sections of the applicable state code must be consulted. In addition, the Procedures Guide cannot be used by LAFCO or interested parties to preempt provisions in State Law. Government Code Section 56133(e) explicitly states that an extended service that a city or district was providing on or before January 1, 2001 is not subject to LAFCO's contractual service purview. In addition, the past tense used in the word "extended" in Section 56133 clearly shows that the Legislature intended that LAFCO's contractual service agreement purview apply only to services "extended" after 2001 and not before. The legislative analysis for the original statute and a subsequent amendment indicates that the Legislature intended that a grandfather provision be an important overarching exemption to LAFCO's discretionary authority. Refer to attached legislative analysis. • Proper Interpretation of Exemption: Coronado believes a proper interpretation of the LAFCO exemption per Section 56133(e) would require that the new proposed sewer project be considered - if the San Diego LAFCO decides to rely on the fourth exemption. Further, Coronado states that any subsequent amendments to a wastewater service agreement for the Coastal Campus project would not be exempt from LAFCO purview. Coronado could not find any decisional law or legislative history of Section 56133(e) where an expansive reading of the statute had been adopted. In addition, Coronado states that an expansive interpretation is not provided in the San Diego LAFCO's Procedures Guide. In analyzing a statute's text, Coronado states that courts are guided by the basic principle that a statute should be read as a harmonious whole, with its separate parts being interpreted within their broader statutory context. The City further states that Canons of Construction require that a term used more than once in a statute ordinarily be given the same meaning throughout. Coronado believes that LAFCO staff interprets the term "extended service" in Section 56133(e) to mean "amended or expanded service". Coronado cites a policy adopted by the Humboldt LAFCO that defines a new service request as an expansion or intensification of outside agency services as further justification for its argument. Coronado adds that the service the City of Imperial Beach was providing outside its borders on or before January 1, 2001 was a sewer service to four dwellings and one guard house, and that sewer service is now proposed to be provided to 1.5 million square feet of facilities, far exceeding and expanding the level of existing service provided by the City of Imperial Beach. Coronado states that this is entirely different from the service previously provided by the City of Imperial Beach. Coronado also states that sewer service to the 16 Campus College project is not exempt from Section 56133(e) because the service the City of Imperial Beach "was providing before January 1, 2001" is inconsistent with the level of service now contemplated. Thus, Coronado believes the "new or extended services.. the City of Imperial Beach now seeks to provide ..by contract or agreement outside its jurisdictional boundaries .. are subject to the written approval of the San Diego LAFCO. LAFCO Staff Response: Government Code Section 56133(e) does not authorize LAFCO to regulate land use changes or density increases when deliberating on contractual service agreements or changes of organization. In fact, Government Code Sections 56375 (a)(6) and 56886 explicitly prohibit LAFCO from regulating land use density or intensity, property development, or subdivision requirements. Coronado reaches a highly speculative conclusion and makes an unsubstantiated statement regarding LAFCO staffs interpretation of the phrase "extended service". LAFCO staff has never made an interpretation of this phrase in that manner. Furthermore, a policy adopted by the Humboldt LAFCO does not govern the San Diego LAFCO's implementation of Government Code Section 56133. In addition, Government Code Section 56133(e) does not distinguish between levels of service or land use intensity regarding the grandfather provision for services provided prior to 2001 . Therefore, since sewer service has been provided to the subject territory prior to 2001, the service is exempted from LAFCO purview today, even though the amount of sewage that will be generated in the territory will increase in comparison to 1967 levels. If the Department of Navy requests Imperial Beach to provide a new service, such as police protection, then police protection or any other new type of service, would likely be subject to LAFCO purview, unless documentation can be provided that such service was provided prior to 2001. Provision of sewage service to the NBC Coastal Campus site does not constitute a new service. Lastly, Coronado makes references to service agreements between two local agencies where the contracts or agreements are an alternative to services already being provided by an existing service provider. Although not cited by LAFCO staff as the primary basis for the overall exemption, this exemption may apply to the Coastal Campus because the 1967 service contract is between Imperial Beach and the Navy, and there are some interpretations of Government Code Section 56133 that would categorize the Navy as a public agency. Again, Government Code Section 56133 contains five exemptions to LAFCO purview. Conformance with any one of the exemptions provides the necessary grounds for exempting a service contract from LAFCO purview. LAFCO staff indicated that the primary exemption is that applicable is the one for an extended serviced provided on or before January 1, 2001. Other exemptions may in fact apply, but the primary one pertains to the 2001 service provision date. Documentation has been provided indicating that a contractual service agreement was executed between the City of Imperial Beach and the Navy before January 1, 2001. This agreement specifies that Imperial Beach must provide sanitary sewerage services ..as required by the Government" and "receive, transport, treat and dispose of all 17 sewage originating at the project in such amounts as the Government desires to release into the City's system ... " Further, Government Code section 56133(e) refers to "the level of service to be provided is consistent with the level of service contemplated by the existing service provider." As Imperial Beach is a party to an agreement specifying that Imperial Beach agrees to receive, transport, treat and dispose of sewage generated from the NBC site in such amounts as the Federal Government desires, this agreements represents evidence that Imperial Beach has planned for the level of service required, is able to provide that level of service, and wishes to do so. It is therefore possible to conclude that the level of service required by the NBC Coastal Campus project is consistent with the level of service contemplated by Imperial Beach. • Definition of Public Agency. Coronado states that the San Diego LAFCO may not use the first exemption in Government Code Section 56133(e) because the first exemption applies to contracts involving two or more agencies. Coronado states that the U.S. Navy is not a "public agency" within the meaning that term is given in the CKH Act. Government Code Section 56070 defines "public agency" to mean "the state or any state agency, board, or commission, any city, county, city and county, special district, or any agency, board, or commission of the city, county, city and county, special district, joint powers authority, or other political subdivision." The U.S. Navy is not considered a public agency per the unique definitions in the CKH Act. Second, the first exemption of Section 56133(e) requires that the level of service to be provided be consistent with the level of service by the existing service provider. As explained above, the level of service to be provided will be greater than the existing level of service. For both of these reasons, the first exemption of Government Code Section 56133(e) is also inapplicable to the new proposed sewer project. LAFCO Staff Response: LAFCO staff cited the fourth exemption as the primary basis for exempting the NBC Coastal Campus from LAFCO purview, and not the first exemption referenced by Coronado. The fourth exemption in Government Code Section 56133(e) states that LAFCO purview over contractual service agreements does not apply to an extended service that a city or district was providing on or before January 1, 2001 without respect to whether it was providing service to an agency. Evidence has been submitted to LAFCO documenting that wastewater service has been provided by Imperial Beach to the Navy since 1967. While not cited as the primary reason for exempting the provision of wastewater service from LAFCO purview, the first exemption may also be applicable. Moreover, Government Code section 56010 states that the definitions provided for the CorteseKnox-Hertzberg Act apply "[u)nless the provision or context otherwise requires ... " Because section 56133 is intended to reserve LAFCO's review for those out-ofboundary service agreements that are likely to implicate the purposes for which LAFCO was formed; and because government agencies -whether federal, state or local - are subject to NEPA and CEQA to address concerns such as those that gave rise to the creation of LAFCOs, we conclude that the context of section 5601 0 may require that 18 "agency" as used here may include federal agencies which are otherwise immune from LAFCO's authority under the CKH Act. • Provision of Sewer Service outside Imperial Beach's Citv Limits and Sphere Requires LAFCO Approval. Because the Coastal Campus is within Coronado's jurisdictional boundaries and outside Imperial Beach's city limits and sphere of influence, Coronado states that Imperial Beach cannot provide wastewater services to the new proposed project without LAFCO approval. Coronado states that Government Code Section 56133(a) requires that a city seeking to provide extended services by contract outside its jurisdictional boundaries must first receive written approval from its local LAFCO. Coronado states that Imperial Beach is not seeking to contract with another public "agency" as the statute defines that term; the level of service contemplated for the new proposed sewer project exceeds and expands the existing services provided by the City of Imperial Beach. Coronado argues that LAFCOs are essentially the only body existing at an intermediate level between the state and individual local governments with the power to address broad future planning concerns. Coronado restates portions of the CKH Act which charge LAFCOs with the broad policy mandate to ensure orderly development and ensuring the efficient provision and extension of local government services. In light of these objectives, Coronado believes the Coastal Campus project is the very type of project for which LAFCOs exist and therefore requires LAFCO oversight. LAFCO Staff Response: As with the previous LAFCO response, the discussion provided by Coronado regarding the five exemptions contained in the CKH Act regarding LAFCO purview over contractual service agreements is preempted by the fourth exemption. The fourth exemption is overarching and clearly states that the CKH Act does not apply to an extended service that a city or district was providing on or before January 1, 2001. If this exemption is applicable, then in many ways, it is unnecessary to review any of the other exemptions in Government Code Section 56133 for applicability. The discussion that Coronado provided in the above discussion is inapplicable with respect to the Coastal Campus, because the City of Imperial Beach has provided sewer service to the subject territory prior to 2001. However, had this service not been provided prior to 2001, or if the Federal Government is not considered a public agency for purpose of the CKH Act, then the prohibitions discussed regarding the provision of services outside a local agency's sphere of influence would likely apply. In this case, absent qualifying for one of the exemptions in Government Code Section 56133(e), or the health and safety provisions in Government Code Section 56133(c), we believe it would be highly unlikely that LAFCO could authorize Imperial Beach to provide wastewater services to the NBC COASTAL CAMPUS site. The reason for this conclusion is that the NBC Coastal Campus site is not located within the Imperial Beach sphere of influence, and it is unlikely that it would be placed in the City's sphere, given its location within the corporate limits of Coronado. • Review of NBC Coastal Campus Sewer Service and Consistency with LAFCO's Purpose. The City of Coronado indicates that LAFCO must undertake review of the 19 NBC Coastal Campus sewer service agreement because the provision of sewer service to this site represents the type of situation that LAFCO's were formulated to address. Coronado states that the NBC Coastal Campus sewer project will set in motion an irrevocable course of potential future development within the City of Coronado with significant potential adverse consequences, without participation of the City of Coronado. LAFCO Staff Response: Government Code Section 56133(e) does not authorize LAFCO to regulate land use changes or density increases when deliberating on contractual service agreements or changes of organization. Coronado's land use and environmental concerns are better addressed via the NEPA environmental review process by agencies which have statutory authority to regulate land use, which LAFOC expressly does not. Subsection {e) of this statute exempts from LAFCO purview extended services that a city or district was providing on or before January 1, 2001. Imperial Beach submitted written evidence sh9wing that a contractual service agreement had been executed in 1967 between the City of Imperial Beach and the Department of Defense (Navy) specifying that Imperial Beach must provide sanitary sewerage services "as required by the Government" and "receive, transport, treat and dispose of all sewage originating at the project in such amounts as the Government desires to release into the City's system ... " Coronado's discussion about LAFCO assuming jurisdiction over the NBCC site is inapplicable given that sewer service has been provided to the site via agreement prior to 2001. • Sphere, MSR and General Plan Consistency of Imperial Beach Wastewater Services. Coronado recites LAFCO's powers and duties regarding initiating and making studies of governmental agencies, plus the inconsistency of the Navy's NBC Coastal Campus project with the Imperial Beach General Plan. Coronado concludes that the most logical solution consistent with the CKH Act is for Coronado to provide sewer services within its own boundaries. LAFCO Staff Response: LAFCO staff shares some of the concerns and conclusions reached by Coronado regarding the provision of sewer service outside of Imperial Beach corporate limits. However, the purview of the San Diego LAFCO is constrained by the exemption found in Government Code Section 56133(e) exempting from LAFCO purview extended services that a city or district was providing on or before January 1, 2001 and for service agreements between public agencies. If a contract did not exist and none of the other exemptions applied, then approval of a contractual service agreement between Imperial Beach and the Navy would be highly unlikely and problematic- as section 56133 places emphasis on the sphere of influence of the service provider (Imperial Beach). The key here is for services provided after January 1, 2001. Again, Imperial Beach has provided written evidence documenting that a contractual service agreement had been executed and services have been provided since at least 1967 between the City of Imperial Beach and the Department of Defense. The service agreement further specifies that Imperial Beach must provide sanitary sewerage services "as required by the Government" and "receive, transport, 20 treat and dispose of all sewage originating at the project in such amounts as the Government desires to release into the City's system ... " Coronado's discussion about LAFCO assuming jurisdiction over the NBC site is inapplicable given that sewer service has been provided to the site via agreement prior to 2001. • Imperial Beach City Manager's Statement that Imperial Beach will not Provide Wastewater Services Without LAFCO Approval. Coronado claims that LAFCO must consider Imperial Beach's City Manager's letter of May 26, 2015 stating that Imperial Beach now will not provide wastewater services to the NBC Coastal Campus site without LAFCO's approval. LAFCO Staff Response: This issue represents one of the better arguments that Coronado has provided. However, we question the legality and authority of such an administrative action, if taken by the Imperial Beach City Manager. The May 26, 2015 statement from the Imperial Beach City Manager appears to be contradicted by an earlier statement issued on March 30, 2015, indicating that "the City of Imperial Beach is willing to continue providing service to the Navy .... and authorization for these services has been verified in the official City Council meeting minutes in 1967 authorizing the Mayor to execute the agreement and through several amendments to the agreement from that date forward ... " Moreover, only the Imperial Beach City Council can amend written contracts binding the City. Still further, Coronado's position amounts to an argument that a city can confer authority to LAFCO that the Legislature has withheld. This is not the Jaw. In addition, the 1967 contract does not appear to contain a termination, modification, or opt-out clause. Should such a clause or clauses exist, and should Imperial Beach be able to lawfully exercise one or more of the clauses, then LAFCO staff should be advised as this could result in a change to the Preliminary Determination. In any event, we would suggest that the City Manager first obtain legal advice as legal issues could result from a deviation from the agreed upon sewer service agreement with the Navy. If the terms of the sewer service agreement changed in a manner that triggers LAFCO purview, then the prohibitions regarding the provision of services outside a local agency's sphere of influence could apply. In that case, absent qualifying for one of the exemptions in Government Code Section 56133(e), or the health and safety provisions in Government Code Section 56133(c), we believe it would be questionable whether LAFCO could authorize Imperial Beach to provide wastewater services via a new contract to the NBC Coastal Campus site. The reason for this conclusion is that the NBC Coastal Campus site is not located within the Imperial Beach sphere of influence, and it is questionable whether the territory could be placed in the Imperial Beach sphere, given its location within the corporate limits of Coronado. CONCLUSION In conclusion, in light of the 1967 wastewater agreement between the City of Imperial Beach and the Department of the Navy, we understand Imperial Beach to be required to receive, transport, and dispose of sewage originating from the NBC site in the amounts 21 desired by the Navy. Although the amount of sewage that will be generated at the Coastal Campus site will increase compared to historical usage levels, the 1967 wastewater agreement provided the Department of the Navy with the contractual rights for increased sewage treatment, transport, and disposal services from Imperial Beach. Therefore, the provision of sewer service to the Coastal Campus site does not constitute a new service. The CKH Act exempts from LAFCO purview an extended service provided on or before January 1, 2001. Since the service in question was provided before 2001 with no contractual limitations as to increases in sewage treatment, transport, or disposal quantities - the provision of sewer service to the NBC Coastal Campus site falls within a statutory exemption to LAFCO's purview (Government Code Section 56133(e)). To the extent there may be ambiguity regarding this exemption, legislative history of this law and predecessor statutes seem to support the interpretation and conclusion that provision of sewer service to the Coastal Campus site is exempt from LAFCO purview, because it is subject to an agreement that predates the enactment of section 56133. Further, contracts between public agencies for previously provided services are exempt from LAFCO review under that section and the agreement in issue here is within that exception, too. As to the legality of the Imperial Beach City Manager modifying the 1967 wastewater services agreement with the Department of the Navy without concurrence of the Imperial Beach Mayor and City Council, this raises potential legal issues. LAFCO is a quasi-legislative agency and has no power to adjudicate such matters. Therefore, if Imperial Beach is still without legal counsel services with respect to this issue, it is recommended that the City obtain outside counsel because the City may be at an increased legal risk if a court finds that it has breached a contract. If Imperial Beach is not bound by the 1967 agreement, or if both Imperial Beach and the Navy mutually agreed to lawfully terminate the 1967 agreement in order to execute a new contractual service agreement, then the prohibitions per Government Code Section 56133(b) regarding the provision of services outside a local agency's sphere of influence would likely apply. In that case, absent qualifying for one of the exemptions in Government Code Section 56133, it would be potentially problematic for LAFCO to authorize Imperial Beach to provide wastewater services to the NBC Coastal Campus site. The reason for this conclusion is that the NBC Coastal Campus site is not located within the Imperial Beach sphere of influence, and it is unlikely that it could be placed in the City's sphere, given its location within the corporate limits of Coronado. A meeting may be scheduled to discuss the Preliminary Determination, if requested by any of the local agencies or the Department of the Navy. If concurrence regarding the determination is reached by parties, or if the parties do not desire to further discuss the content of this determination, then no further action needs to be taken. However, if any of the parties disagree with the preliminary determination, and wish to appeal the determination, then an appeal may be made in writing and will be considered by the full Commission (LAFCO). The appeal needs to cite the specific area(s) of disagreement, 22 and be accompanied with a filing fee of $1,030. All appeals must be received by LAFCO by the end of the business day on September 11, 2015. Executive Officer List of Exhibits Vicinity Map: NBC Coastal Campus 1. Imperial Beach correspondence & wastewater service agreement, March 30, 2015 2. LAFCO correspondence, April 9, 2015 3. Coronado correspondence, April 10, 2015 4. Burke Williams & Sorensen, LLP correspondence, May 1, 2015 5. Imperial Beach correspondence, May 26, 2015 6. Department of the Navy correspondence, June 4, 2015 7. Burke Williams & Sorensen, LLP correspondence, July, 7, 2015 23 VICINITY MAP Naval Base Coronado: Coastal Campus CHULA VISTA r·ur~_, ~~~ ~ L~l j'----... ~-STElNE Naval B~se. Coronado: I Coastal Campus PaGiflc Ocean Existing Sewer Line SAN DIEGO Legend THIS MAPJUATA IS PROVIDED WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS DR IMPLIED INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABiliTY AND FITNESS FOR A PARTICULAR PURPOSE Copyright SanGIS 2009 ·All Rights Reserved Ful text of thts legal notice can be found at hltp Nwww.ungls.org/LegeLNot•ee him Date 8f7r.!01S 0 0.175 0.35 Document Path G \GIS\Inqulrlu\18 naval staban mxd Exhibit 1. Imperial Beach Correspondence March 30, 2015 ·1 .1 -. : ;,:;:,· · - ~-_, ' -s;tl., --tl . 1>'1\,,..---, ~~( ~f) I -~ • . City ofImperial Beach, California OFFICE OF THE CITY AIAI\'AGER 81J lo~pUia/ Bead1 Bla·d, lmperlullktM.:h, CA 9/9J2 Tel: (619) -11J.IJJOJ Fax: (619) 618-IJ9J March 30, 2015 Mr. Mike Ott Executive Director San Diego County Local Formation Commission 9335 Hazard Way, Suite 200 San Diego, CA 92123 Executive Director Ott, The City of Imperial Beach has been asked to explore the potential of continuing to provide wastewater services to the United States Navy (Navy) for the construction of the Naval Coastal Campus located immediately north of the City of Imperial Beach, but physically located In the City of Coronado. The request Is a result of both topography and the fact that Imperial Beach has provided wastewater services to this area since approximately 1967. Therefore, please accept this letter as an indication that the City of Imperial Beach is willing to continue providing this service to the Navy. Authorization for these services has been verified In the official City Council meeting minutes In 1967 authorizing the Mayor to execute the agreement and through several amendments to the agreement from that date forward. The latest amendment to the agreement is dated and signed on September 18, 1991 and we have been operating In accordance to that agreement since that date. I have attached several versions of the agreement for your review. Therefore, the City of Imperial Beach is prepared to provide wastewater services to the Naval Coastal Campus as requested by the Navy. If you have any questions In this regard, please do not hesitate to contact me. Sincerely, A~~ Imperial Beach City Manager cc: Wes Bomyea, Naval Base Coronado Liaison Greg Wade, Assistant City Manager Jennifer Lyon, City Attorney Blair King, Coronado City Manager CONTRACT MODIFICATION LOG-IN CONTRACT N68711-"'fl-/)1- "ivc. @) MODIFICATION # . (r r.r (l/ DATE t.JA"~~ ITEM#_ //_z ·./ /{• f">t~C£.:!(!2 ?J/;/7; .-; )c'.X~l.' {I -~ 4'ff/,/ . PCt"XX111 :..1/rj1/ Cli i L/tz/cr, _N_lp. q{lfJ(q, 0-"t-~· ?axt?c:;· ,.,t ((.'( •(. SHE~l J/1•/ :J coNTRACTOR Cct\1 (;~ ".lm(Jl1tnl fdi•t j l DESCRLtllmN OF' WORK & LOCA-ION 1 l<18.~t DU.' -' ~r 11 LjJJ it:frittr~ (I'J1r1) }.~J .,.ll\ IlL£ )it 61Lt~/ f!ltl1 )( rv. l 1f 1J LIG-'nrJt'~ }{_j t· t)!.~ ~·re( IfiJJ J "Ylt {j(li.ir_ tL ac~ lrfi..J,j i ·~·];/IC /(} - J)(JUJNUAA.I> I ··R t il I~ ~N'l 'L.U(~ 1 1ht'J '\1<· ( r r.:t v AMENDMENT OF SOLICITATIO IODIFICATION OF CONTRACT Southwest Divisfon (Code 0214.PK) Naval Facilities Engineering Command 1220 Pacfffc Highway .~~RM'PA~.i(o~!9~~g;T5R1.Pc~OR (NtJ., slr<•r/, rnrml.\', ,>;talr tlli'iO~!'-;-;:rn;,;)- . _.... _. .• . -r~J City of Imperf al Beach 825 Irnperfal Beach Boulevard Imperial Beach, CA 92032 (619) 423-8300 COOl! I I FACILITY 'M"f\r.t[FffiMI;'NJ(ji: SOI .IC ITI\riON NO. iio.o/,r~·~· f.fl'i·: u 'I·5rti i' ·-- ····· - - ···- --· i"f.n:·w~r,:. 1"/\Tiiitl lr r•('lll l HAt'T;)f"'lc'V( cnor ·- · ;::=;----------....;1...:..1.:....T.:..;t-...;..II;.;:S....;I...:..T.:.:.F.M:.:.:....:O:....N..;.:L:...Y:....:...;A:....PI;....::'LIL S 'IIJ 1\MU~ flM[· N I •:; or SOI.ICITATiflNS 0lendad.The abavo numbttu!d sollcllatlon Is amendP.d as sat forth In h•nn I•~-~~~.:.~1111 oltue SJ:~;~J In< ,:·::-:::1 h•r:; IT~~ ,.:.,n~• ;...,: - 0 i~-,;:-:::­ Offers must acknowlud1J8 receipt of this omondrnont prft)r t<> tl "' huur nnol rl •l·r >l'~dllllrlrn 11"' 5·•1 ••:il.lln'" '·' J' .u!lf:rnJo•ai. h•: nn~ 1ll tl •~ h>lhl'tllnumnthUols. Ia I By complatino Items 8 and 16. end returning _ ..• . coplas of thu anrmrdnruru: (Ill lly ncknr:~wi·•1•Jin!J r~•eipt ~r lhi~ onll!ndmrmt ou l]llrh copy of thu ... trnr •ubmlttlld; or (e) By sepurote Iauer or tolegrum which lnclucl!Js o rufuru111., tn chP. :~ •.!II•:: .Jit•:,JOI\ Uhl' li ! !t \1 . '·"~'· ' h, .. h' rll•ll i>c• "' d·· 11 ~· "'"''1' ·''1 • I Jottor, provided oach telegram or letter rnakes re(emnco to thn snlh:it,lfiul n t:i thh tltn,•ndnt~!nr, nnd 1"'•'-'•:tll :tlfll•fit\f ltl 1hll1Jl ,t'llii ~H t111~n .Hu t rJilW snf:r:•fh~l 12-ACCOUNTINd AND APPROPRIATION DATA mrequin:dJ -- - - · - - - . ---··-·-· .• - ·- "·-· ' .. . ·----- - FIINDS WI! I BE CITED WHEN 1 NVOICE CERTI EI ED FOR PAYMENT 13. THIS ITEM APPLIF.S ONLY TO MOIJII' JC/.TIOI•!S OF CfJN1 hM t ·; 'l1nllll1' ITMODIFIESTHECONTHI\C.I/Cl fiDFft No ASDF.SCiliBi:lJ 1'·1 ll[M 1'1. __._______________________________ _____ _______________ tJ) ....=.. A. THIS CHAN~_IO_OR_.P~ft !~.ll!!il!~.D PURSUANT TO: (Spccl{l' ®ilrm•iiY)THt:'f.i"iANGEs"Sffrfiiii1TIIii I r r.r.1 714::-;:cii.,...H""l.-:M"'At:iciN f i ii:ct:m·- - . TRACT ORDER NO. IN ITEM lOA. _..._., , B. THE ABOVE NUMBERED CONTRACT/OROE:H IS MOOiriEO TU 11EFL.ECT rHE AOI~INIST Hll II VI CIIAI t<;Cs (•uric approprlllllan dall, Q/e,) SET FORTH IN ITEM 14, PURSUANT Tll 'rHE 1\U rHORI TV fll" FAR 43. l03fb). C. THIS SUPPLEMENTAL AGREEMENT IS ENTERED INTO PIJitSIIfiNT TO AUTI·iMIT'I 0, OTH R f.P•e lyp" of mod/t (iif;- .. -. a1 ---·- -- ---·------ - - - - --- - -------·----··-·-·-····· - -·- __,. IIlion and r~ulhorlty J -· elurn,rllll flrJYflll/ o(flc,•, ________ --'-------------- - -... - - - - --·~·-· ·original--&- - - - - - - - - E. IMPORTANT: Contractor i~ not, [!] i:~ reqnirt>•J t•l ~iqr, tl.ir, dmrm111111 .mrl n:t.rrr~~P~~t;~J::~,ri••s to tho issuino nffir.•1. D 'i4.DESCRIPfiON OF iNIIAiliilSA¥{MOOIFI CATION (0J'Ialll~rd b>· UC.'f' .e., linn ll~ad.lnst•, /ncltrdml/ •ollaltnl/nu/•MI lnu:/ •uL/acl mal tar wli•N (o,../blt.} SEWER SERVICE AT NAVAL RADIO STATION, IMPERIAL BEACH, CALIFORNIA the basic agreement and all subsequent mod1f1catfons to change sewer rates, effective 1 July 1990. ~dffy Residential (Single Family) Annual Service Charge $268.46 Total Estimated Annual service Charge: 4 Dwellings x $258.46 =$1,033.84 EXcopt as provlciOd 110frJin, all torms and conditions al ura docurnonc ratarancact In Ir4m 9A or IDA, as l>aretofarc chanqed, r•nr•lns unchan!Jed auu In lull lan:u 11nd •fleet. usA IIIAME AND Tlft..E oF SIGNER ('l'YP" ar print} . - - - - · _.. RICHARD S. JUNG- ADMINISTRATIVE SVCS. DIRECTOR 1 TiiA."i'i'AMr AND TITL.E OF com RACTI~ioot-FICER ITYP• or prlniJ M. WI~LIAMS , CO~~CTING OFFICER f' 15C. DA1E SIGNED JGB':'DNIT~-~_'TATES OF _.AMERICA " -- •• - - - 09/10/91 (,. !i' - _..,...,,... ~ . ..:...~.:~.• / .. J..i...!.:._-:- . - (SI/In"''i'" of Cr>Jrlr.,ctl"'l tJfllcor) ~ 16C. DA / ·' STANDARD FORM30 CAEV.10·83l l'rascnbfl:~fn c:'QN-' . TRACT ORDER NO, IN ITEM lOA, X B. TI-{E ABOVE NIJMUEHEO CONTRACT/ORDER IS MODIFIED TO REFLECT TH!: ADMINISTRATIVE CliANCl~S f•uelo cv. ci:C11Jr<'•lll pa,'lllll llff/•'••, 11pprot>rlallon dnte, r!/C.) SF.:T FORTH IN ITEM 14, PURSUANT TO THC AUTHORITY OF PAR 4!.10."J(b). C. THIS SUPPLFMENTAL AGREEMENT IS ENTCRED INTO PURSUANT TO AUTHOR lTV OFt ----- ------- D. OTHF.R fSJHO•If)' l)•por of noadlncmllora and olllhorllll} --·---- -------------------------------· ------ .- 00 0 E. IMPORTANT: Contractor is not. is required to sign this document and return __ <:n1JIOS tn thn b~u lny offi•;o T4.'DitschiPTION 01' AMENDMENl'/MODIFICATION (OrJ:anlzud by ucP IIJCtlon headlru•• lnelud/n• IDUdiiJUun/CtJI&InJct•uliidcl nrGltcor wham 7ihiiliiw.) - Modify the basic contract and modifications thereto as follows: a. Transfer responsibility for execution and administration of subject contract from Commander, Western Division, Naval Facilities Engineering Command, San Bruno, California to CJmmanding Officer, Southwest Division, Naval Facilities Engineering Command, San Diego, California. b. Revise the Procurement Instrument Identification number for this contract by substituting therein "N68711" for "N62474" to produce the new contract number of N68711-70-M-1613. E~ecept •• provldatl llaroln, alltorrns and colldltlnns ol tlla document rarorancad In Item !IIA or lOA, ns haretoloru cllanged, r•m•lns unchen~ad aod In full Ion.• a no art•c:l. l5A. NAMC AND Tl rLE 01" SIGNER rJ'yfJd or print) lGA, NAM A ITL OF CONTRACTING 0 FICEfl7i'YiUi nt prlnil Dennis McAuley Hea lSif. CONTRA<":TOn OllSS r c:rn oF rHPERIAL BEACH ' 825 Coronado Avenue P. O. Dox 427 Imperial Beach, CA 92032 t .ftn'tl, th1. ,,J 7/Plltlll. tl'l/lft;r, (t;:/1} 0 couFOftiiED rJ !IRN IUH 0 ACTIVITY: lho o!>e•t Tho ~ For: SE!vER SERVICE D.lo1LD. 6 7 SEP 15 '"'" ltfo¥J. Ill At: NAVRADSTA llfPERIAL BEACH (FtolC SDIEGO) ~our oncl dolo apotCUing unit EST He»ms - per each patient' e bed from 1 to 40 inclusive per each patient's bed over ItO $ 7.75 $ 5.60 ,3 HOTEL.'!, cote.ta, auto courts per livina unit '~ithout kitchen per living unit with kitchen 31. TRAILER COURT -- per trailer space $ 13.50 $ 36.00 $ 18.00 • 4 CHURCIIES -- per cnch unit of seating cnpacity (o unit being 150 persons or ony fractio11 thereof) $ 48,00 .5 CAFE ur roataurnnt sales -- not conrlur.t1.nR on-sola liquor aulas $147.00 $ 81.00 conducting on-sale liquor ,6 AUTOMOBILE SERVIC! STATIONS -- not nore than 4 gasoline pumps -- mora than 4 gasoline plllllp& $ 72.00 $108.00 .7 SELF-SERVICE LAUNDRl~~ --per each aut.omatic washer from 1 to 20 inclusive per ench automatic washer over 20 $ 18.00 .8 OTRER BUSIHESS. For each store, office, business or small industri:ll astabU.ahDIIIot not listed above $ 36.00 I $ :..4.00 Provided, however, in the C8lla of la.undri.os (otl1er than self-service laundries), bottling ~~rks, industrla.l oatabliah~onts, ond other buaincaaea and eata.b!iahmanta that have unusual charactoriatic~ insofar as acwaga is concerned, the rota shall ba astobliahocl in each case by tha City l~nager subject to oppruvnl b)· th• City Council. The rotas so Blltoblisbed shnll bo fi-xed in conaidoration of tho e&UI4eted volumu end type of sewage from auch. SECTION 2: Sec. 84ll.l ia hereby added to Article 842 of thn Municipal Coda to rend H~ follows! § 8421.1. REFUND OF F~:J•q: •t• oJ ,,, •'\"'"''• :>."1 ~:·:·Jiclltir.r, !<'l" ~·;. lnaLilli.ucioc, of aewnr aervic:o lnt~srnJ connections ls "'.i.thclrnWI\ 1•drn: to the in:lliatiCIU of c:onstrucl.ion work on l:hia hler.:ll, a l'lintm\\1!1 eh11r3~ of $.5.00 wtll. br: 1!1acle for proceuina tbis rufund. ctpal SI!<.TJC•ll 3; Soc. 8.Ul 1" hcr.:by added to Art:l.eb 81,] of l:hc tlunf·· tn read II& follow~\ Cnd~ !i 84U. g;{i'JL _I!E.~Y!~!L_glo!lU!~~.!!Qf. .::...":t!!!!l!:!f.J£1.!'~1.. gx. ~nrau1nt tu thr: provl•;fonu of sn.•. 5551lJ.!i .:~ lhll W'ltcl· C••dn .. r tl1.1 Srnt" r>f CnlU'o::-uiu mnl s. .,.. "\11902. Chnrtcr n .. r th·, Go •• , .. r.~nL Codn r•r l'll:t ::1:111:•· of. Cnl l.tnrnir., tbrrc lu '"'r"b:t ''""':sl>U11111sd ;, ut.t,.! '\':tll-1b1,, bnt 1111t !!"I IJ>l~ol l•;; ~bt! prupact)• nto\l~i.·r. !turt1u.•· hltrtu.ll '''~'·j..:-•· •·L·t".l&:t: ~tnndby cla:.cr.A ,,n nn oL·e,,, ft·cml:ny~. or p.ar"'aL b:1n r ~,.,.. ,, n co::lbi.nr•t.hrn tharco, . ,..cJ~:"JE"dlcAR nf •th,:du.H· &h'Utlr .:c.rvir-•• ' t nctu:1l ly tUdd u1· n()t. Effective o\ld COIJ:lltlncing 1 July 197& thoro is h;,rby levied oncl ossesacd 3 S nit 1 BILDRAY, DENNETT, OGLB, MCCARTY, STITES, AYES: NOES I ABSENT: .· NONE HONE .APPROVED: LERBERT L, STITES MAYOR. CITY OP tMPERIAJ, BEACH ATTEST: a~£y,Q«1._')'l.jt.i_,.,._ CEORfi(RA'IOS .. A. CI'IY ctEru: CI'IY OF DIPERIAL DF.ACII Published July 21, 1976 J:mperial. Tleacb Reminclcr. . •, •'.J···· ' ·" c~ ~ ~I ~ '.. ). rr.t"'J .... , '.t:er ry !::.> t. r"clClD Pc.puty Clar.k Exhibit 2. LAFCO Correspondence April 9, 2015 9335 Hazard Way • Suite 200 • San Diego, CA 92123 (858) 614·7755 • FAX (858) 614-7766 San Diego Local Agency Formation Commission Website: www.sdlafco.org Chairman BOIHom County Boan:t at Supervisors April9,2015 VIce Chairman Sam Abed Mayor City of Escondido Members Dianne Jacob County Boatd of Supervilors Andrew Vandertean Pubic Member LorfeZapf Councllmember City of San Diego Lorraine Wood Councllmember City of Cerfsbad Jo MacKenzie VIsta Irrigation Dlltrlct Vacant Special Dllltrlct Alternate Membars Greg Cox County Boatd of Supervllors Chris Cate Councllmember City of San Diego Wesley E. Bomyea Community Planning and Liaison Naval Base Coronado PO Box 357033 San Diego, CA 92135-7033 Subject: Government Code Section 56133(e) Exemption I Naval Base Coronado (NBC) Coastal Campus Dear Mr. Bomyea: This Is to confirm that I have reviewed the documentation provided by the City of Imperial Beach regarding the provision of wastewater service to the proposed Naval Base Coronado (NBC) Coastal Campus. This documentation Indicates that a wastewater service agreement between the City of Imperial Beach and the Federal Government (Department of Navy) was issued beginning in 1967, and last amended in 1991. Based on these facts, the provision of wastewater service by the City of Imperial Beach to the NBC site (which is outside of the Imperial Beach city limits) is nQt subject to the purview of the Local Agency Formation Commission (LAFCO) per Government Code Section 56133(e). This exemption is applicable because the extended service has been provided to the Federal Government before January 1, 2001. Because the extended service was provided prior to 2001, any subsequent amendments to the 1991 wastewater service agreement would also be exempt from LAFCO purview. If you have any questions regarding this determination, please contact me. Racquel Vasquez Councllmember City of Lemon Grove Ed Sprague Olivenhsln Municipal WaterDilltlfct Harry Mathia Public Member Executive Officer Michael 0. Ott MDO:ra cc: Andy Hall, Imperial Beach City Manager Jennifer Lyon Imperial Beach City Attorney Blair King, Coronado City Manager Legal Counsel Michael G. Colantuono Attachment: 1967 Imperial Beach Wastewater Services Agreement with Department of Navy City ofImperial Beach, California Of1·1C£ 01' TH£ CITY MAI\'AG£R 81J llllperfu!Betlr.·lz BII'IL, /nlptrlul Bttr:/1, CA 919Jl Tel: (619) -111-8101 Far: (619) 611J.IJ9J March 30, 2015 Mr. Mike Ott Executive Director San Diego County Local Formation Commission 9335 Hazard Way, Suite 200 San Diego, CA 92123 Executive Director Ott, The City of Imperial Beach has been asked to explore the potential of continuing to provide wastewater services to the United States Navy (Navy) for the construction of the Naval Coastal Campus located Immediately north of the City of Imperial Beach, but physically located In the City of Coronado. The request is a result of both topography and the fact that Imperial Beach has provided wastewater services to this area since approximately 1967. Therefore, please accept this letter as an indication that the City of Imperial Beach Is willing to continue providing this service to the Navy. Authorization for these services has been verified In the official City Council meeting minutes In 1967 authorizing the Mayor to execute the agreement and through several amendments to the agreement from that date forward. The latest amendment to the agreement Is dated and signed on September 18, 1991 and we have been operating In accordance to that agreement since that date. I have attached several versions of the agreement for your review. Therefore, the City of Imperial Beach Is prepared to provide wastewater services to the Naval Coastal Campus as requested by the Navy.lf you have any questions In this regard, please do not hesitate to contact me. Sincerely, A I!J,f8JJ Imperial Beach City Manager cc: Wes Bomyea, Naval Base Coronado Liaison Greg Wade, Assistant City Manager Jennifer Lyon, City Attorney Blair King, Coronado City Manager CONTRACT MODIFICATION LOG-IN CONTRACT N68711-" (0- SHE~T m- /IJ.•/.) !'ivc. MODIFICATION II "~'"!-! r..JA"i?A~ ~ DATE_ lmL_I coNTRACTOR Cc)\1,1 r;~L viro(Jl1tfll Rur . D£SCRIPTION OF HORIC & L~TION . ,.(i.Y'.( l( PCO~X"I ~/0// :.:'>fsfll llJ'.t ?~.;- t.J1.z/·n tJ ·p( :)(}O{l .·i lA 1 ~ '}Q.'J"Il/l ( 1!:YI~ ·tUdt'nu£(} ~">!-~~'fc'•t! fJ }JlYJ.f 'lj(l.ti1·~ Ot:IL ff1·.J,j ;' ·r::, IC /(} ootJJIJ~l 'fikM (]LU(srr~ v r AMENDMENT OF SOLICITATIO :~ :w:MdbiPICA'tioN No. ,J.;;;:~r;;COAYL -- · ~~~~~-----------~ -o-E~ - ~~nl 1 southNest Division (Code 0214.PK) Nava 1 F'acf 11t1 es Eng1 neer1 ng Command 1220 Pacific Higmw.y 1 J.iiRHR~oLsWUi:r!iJ~oR m.... ""'"'·'"'"'lJ... ,,a,.: ...CJ~ii'"C':iii'.-·)- -~ i7il'M'"i\r.rli'ffii\iFNJ"ijjl' sor.rr IT/\TION NO, tiii_'i')i\fnr (.91'1: o-rm'uf -- -··- Cfey of Imperial Beach 825 Imperial Beach Boulevard Imperial Beach, CA 92032 (619) 423-8300 CODE I j1r. i\·;:,;, ii· • ,.~,11Vi1't ;; ,.: r.'irii~ 1 II • 1'1\CILIT'f CriLU !"'='l;----------1;....;1.;...T.-I-;.;.;II;,;;;S-"11.;. ;F.o;.;. M--.O.;. ;N.:oLY..:....;.,;/\;;.;PI"""''LI ES 'IIJ N.U tmMr N I~ or '.iOLIJ;Jr A TIONt; ol.-.::- o-;, ThtlboW numburllrlsollcltltlan lurmandl!d 1111 serlunh In lutm 14. Th·•lwrn '""' rhlll! Sfl'JI!ii~~r~~<:utrrt ull)lh!l~ n:.,..:.dHo;: candad. Offeramustacknowfadga receipt of rhllamandrnalll prlolr ''' II•~ luMrr Allll rl,oln111ob'lliut1rn 11111 s->lt•:il.ltu!lr '" 01 ,11nr.nd•rt. hv nnt r>lllu! lllllowlnurnathUob. lei By campilltlno lteml 8 end 16, an.! 1Wiurnl1111 -,_capilli ol rhu an~urdnru111: (hlll'lllckn!l';II•A1~1nu rrmelpt !lf lhhl an111ndmont on oerh c:apy ol Uhl cflnr IUbmltW: or lei BY aapatD18 letw as talegmm which lnc:lurilll o rufuruncm 111 rhe '''liciL11Ion an•J 11111emlnu:nt nund:o:ra r AI l.llnf· or VCJUA I•CICNOWLEOG. MENT TO BE RECEIVED AT THE PLACE DE:SIO~IATED FOR THf. fii:Cl'II'T 01 OFFffiS l'lll•~n Til Trll: lltlllll Mill U•\ n :;~>E.CII IFtl MA 'r' AlS •rl 'I IN FiEJECnON OF VOUR OFFER. If by vlnua nf tllb 811\llnlhtll!l\1 vuu rln·:lrt• .. I '''"'~·l ~" '·'"''' ~''''· "'~ ~ ....,,..,,... 1 . .m r• rio~·· It! ''"'1 h~ llt.ltf•• ..... ,.. ,..,.,.,, . lotlllr,provldtd uch l11legram or Iauer makn nrflltllncD to tho llllii•~Mriunrulll this noltlll1dn1':1111, nn•J '\ ""=•ll•••l ltt'itll '" tim'" ••••i•u "''"' runt rJ,uu splrr.ofr.•l 12. ACCOUNTJNU AND APPROPRIATION DATA IU II!IJUIIiidl - - - - - ·-• - • - ,_, • .. .. .. . ·-- - - - - BINDS WJI! BE CITED WHEN INYOICE CERTIEIEQ FOR PAYME 13. TI-US ITEM APPLIES ONL V ·ro MODIFH'f\l!ONS Of- Clli'l1 IV,C.l 'itOnl'll II'• IT MODIFIES THE CONHII\CT/OFHH:n Nl'l. AS i)f$C:111lH:D l'lll'Et-1 J.J. /lflt fr uulllnril.rJ niifC:IIAIIIGES SE'T ilffiimiN'TiT.M"'J~:-A""H,...;I..-:M;.-A""D~E'"'·::IN~rlli:COfi·- - ------·----·-·- -·--- -·- --·-------'------------E. IMPORTANT: Contrllctor Ill not, [i] 0 14. __ , ________ _ - --- orizt'nai--&-- - ---·---- i~ reqrtlrPrJ tu -.iqro t1 i1•I•>1•Jil •DIII .mrl rortMrfl~plicat.._,l";,,s to tho iaKulno lltfir:.,, oUC:AIPTioN o' Ji&iJi8UiifJMobiFICATION /Oi'iarrl~ri b)' Od• •eoJdn11/rrlidlrrr•, /,.elrrdml •uliellaDom/.-urrlmat •uiJoal mall., ••li•N fali.tl6li.J SEWER SERVICE AT NAVAL RADIO STATION, IMPERIAL BEACH, CALIFORNIA Modify the basic agreement and all subsequent modfffcatfons to change sewer rates, effectfve 1 duly 1990. Resfdentfal (Single Family) Annual Service Charge $258.46 Total Estimated Annual Service Charge: 4 Dwellings X $258.46 a $1.033.84 I!JCC'I!t u provldorl hororn, all tarms and candHlons ol lira dal:lln\lnl refora11conl In Jrom 9A or lOA, u trerefafara changed, ram.. Ins unchangad and In lull lorcor ancleffeCI. i!IA:NAMEANDTITt.EOFSt&Nitii ifipaorprftrf} - - · - - • TIOC'fi~r AND TITLE OF coRi'JtAFtiNO ofFICER th'JIIItJrPi'fnt) RICHARD S. JUNG· ADMINISTRATIVE SVCS. DIRECTOR f' M. ~_J.LIAMS COJI",ACTING OPFICBR I I 09/10/91 NSN 784Ml•ll2..070 PRSVIOUB &;DITJON UNUSABLE JQ 10.. STANDARD PORM30 (REV.lO·IBl ,,.acr,lolcl by GSA r. 1\ll 1411 CI"R) !13.2113 DISTRIBUTION: ~Contract File ~/ Read Ffle y 163 ,/ 1632.JB ~ PWC Code 600 ~ PNC Code 611 r PWC Code 640 ~Disbursing C1nvo1ce office) Office: (Regional Service Dept. (FIPC), Code 801, P.O. Box 23870, Oakland. CA 94623-2387) N68711-70-M-1613 P00006 Page 2 of 2 AMENDMENT OF SOLICITATfO,VIIIIIODIFICATION OF CONTRACT City of Imperial Beach 825 Imperial Beach Boulevard Imperial Beach, CA 92032 NO. N62474-70-M-1613 CODC FACILITY CODE 11. THIS ITEM ONLY APPLIES TO AMENDMENTS OF SOLICITATIONS 0'lllndld,Tim alla\IIJIIUIIIIW~ sollcllllllnn Ia umandtxl11 sat forth In lten1 14. Thd hour und dlto lfli!Ciflad for ~lpt of Oftura buxtnruiolof, 0 I~ ntJI . .. Offors rorust a~:knoloiAallgot roculpt of thla nmlllldnmnl Prlnr ,, tho hour and dHIU 11•clflud In mu IOiillltlltlon or 111 arnondud,by ann ot the lnllnwlnn nhllh•~lt Jal BY c:ompknlna lta.ns 8 and 15,and roturnln11 _ _ _ capias of lha amandmenl: lbl BY aclmowledolno 111celpt af d1ls ernandmdnL on GGch lltlPY of the ur,, 1Ubml1t.t; or lei Bv SIIIJGm'llllettar or tolt~~~n~~n which lncludas 11 tufunlnce tiD me llllloltellorolllld nmandmont number.. FAILUne 01' YOUR ACKNOWLEDCi MENTTO BC RECEIVED AT THE PLACE DllSIGNATED FOR THE RECEIPT OF OFFERS PRIOR TO TI-lE HOUR AND DA1'E SPI:CIFIED MA V nESUI,1 IN FIEJCCTION OF YOUR OFFER. II by vlnuu of 1hls a"*1dmat1t ynu dllllro to chanaean offur elraocly IUbmllllld,such ehnnqo ft'IIIV bot rnudn by ll:ltt•Jroon 1 , latt~tr, provided t."'lch MIHQIIIm or tuuar makosrvfan~ncu to tho aoUcllallon aold thlll 111111111dment,1111d Is remlwd prlnr ro 11111 0fl81111111 hour nnd dlltu rrpo•:lflo~rt. u. ACCOUNTING ANO 1\PPROPAIAtioN DATA dft~~~~ulllld) ·------------------------------------------lXJ 0 --~--------E. IMPORTANT: Contractor Is not, Is required tnslgn this documont and return__ r:oplns tn d1n lssuht9 rrffic. 14. oifSCRIPTIOFi oP MUtNDM!NT{MOOIPlCATJON lD-Gua"" o& ...cHun lieGCIIIII'•• III ..IUdlll.... lld&ilalileallliiiCi·u6ictel IIIGUrr lllhGnl (drMllilii:) Modify the basfc contract and modifications thereto as follows: a. Transfer responsibility for execution and administration of subject contract from COmmander. Western Division. Naval Facilities Engineering Command. San Bruno. California to CJmmand1ng Officer. Southwest Division. Naval Facilities Engineering Command. San Diego. California. b. Revise the Procurement Instrument Identification number for this contract by substituting therein "N68711" for "N62474" to produce the new contract number of N68711-70-M-1613. (Sbln" lu;;, .i( '"' """ au11inrlia:JI NSN 711'111.01·152·1070 PAEVIOUS El11 rltJN llr1U911Bll'. lu7/iiii AnACHED TO AND MADE A PART OF CONTRACT t~ODIFlCATION N62474-70-M-1613-P00005 PAGE 2 of 2 INVOICE ADDRESS: NAVY PUBLIC WORKS CENTER CODE 611 P.o. BOX 113 SAN DIEGO, CA 92134 DISBURSING OFFICE: (DO NOT MAIL INVOICES TO THIS ADDRESS) NAVAL SUPPLY CBNTER CODE 801 P.O. BOX 23870 OAKLAND, CA 94623-2387 Ref: Imperial Beach Account No. 343076 (This contract superceded Contract Nos. NBy(U)36815 and N62473-69-C-2728.) 4854W r Cn'Y OF DIPBRIAL BEACH D4UD-- 825 Coronado Avenue P. o. Box 427 Imperial Beach, CA 92032 n.. ._. _.,...., Mhcu..tloflll _ DArm. 67 SEP 15 fl-tMII4 m At: NAVBADSTA IMPERIAL BEACH T. 1tUS aLoa AftUS ONLY to AMEHDMINrS 01' st'llrarAnOHs 0 61HJ PJ [i}~J.:U::NO. N62474- 70-M-1613 For: SEt~ER SEl!.VICB _j L (Sa Tho ~our oad dato opoclli"' for .-IJIIol 0!1111 _,Ill Cll "'' feot!l 111 lolaG 12. 0 (PWC SDIEGO) II ......... 0 II lllluloa.r.L Ollot"" ....,, ....,...,ltdt lafogroor ., '•"•'• ,..••••., wch ,.,,,...,or lttter -••• ,...,,_ ,. lho ..nih!;..., . - lhlt •-•"''"'• •'14 Ia ronlrtcl ,,., .. lho aponlftt hour oncl dele IJtelllt•. ~.I ':!!r~~": l•n• C.... flo. ~~CI, Jl.pp 1i cab1e funds will ~e "" All•t. ,.... ~.'1':~,; Ttlll14 A!.lf:~•r c-.. C.nW• " cited on nvoices o • del very orde rs i sued against thf II. nilS llOCI: Al'l'l1D QNL'I' YO IIIODIFIC•TIONS Of ~IICDIDC lttl1QI1111&CNnti•O.derhl111114t........... prauisfons of basic .... contract. asre~aarent 1loe CIMIIOto •• ....,,, We* 11111....,. It lh ....... .........,. - d /. .r, Jbl 0 n.. ....... """""''"" ...,.d,.,.1.. " ..... ,,.~'" roftoll·lbtu but not Y'~ llll:!ol loy fht: prupn.rty """••r, Fnrthur tJiotUa.ll ,.,,..,,:, '•li1V.11!u ~lnnd!Jy c:htotr.n ,,n nn oll'UII 1 fruncuull', or P•lr.:-ol b:m nl •Jh, :~lu!l' "''Uolr .:orvir•• '• r O~<'>l 11 lll:t~>,ll)' Cl\13l>tu:-L tom claarao,. ,.0:1111rollu"" u.•ud ur nac. Effective and caw=ancin~ I July 1976 Lharo is h~rby levied and anuaod a S~>war Sarvlt • St:lodby Ch:raa rar I hiP Ctty uC lllporllal llaoch o! ~12.00 per vo.u per paNel ol .lan•l far nll C\OIIIIIIercial propartl(JII, 'l11D ehargoa for rOBidontial properties vlll be aevantoen parcont (171) of the fee collaccible under Sec. 8'10 if the propertY vora to be davalopad to it's poteati:llly 111dshan and besL uao". In coep\\ting thl! cbu;os to bo lsvicd •saiaat ruidantial proportiu, tho Plaaniua Depua:-t. ahall usa Ll14 lauat off1c.1al IIAPI fum1aha4 by the Aeaeaaor'o Office, County of San Dieao, Sc:oto of California, D!IGp!CV' DliCf.AR..\TIOH: SIICtiON 4a In accordanca vith Sac. 3Ul7 of Coda thla Orclialll\co ahall tab ertect f.aaac1iatoly upon ita peaaaa• for the fallowina roaaonl It fixu the 11111aunt of aoney to be raiaed throuah t.llxlltian for the propar aporation ad 111&1ntenlll\" of aaver facilities within tb City of lmpadal lloacb. tlie Covam~~ant SIC1'ION 5: "'• City Clerk ahaU certify to the adoption of tbia ordtuence aad cauaa :tt to ba printod at laaat oncm ia tl1a Impor:tal Dnach laindar a nwapaper of sanaral circulation in the City of llnpedal leach, within 15 daya of ita paaaap. PA8SBD AND AllOl'TJ!l) at a rasular aaatins of tho City Counc:S.l of tl1n City of lllparlal Daacb hold thia .hl!_ of .JulY , 1976 by tho fallovins vat9; to witl AYBSI IILBRAY, D'EIIIIB'n, OCLE, HC C'.AttTY. STITES. HOI!B• IIONB AilS !INTI NOliE APPIIOV!D: LID!Il7 L, snns MAYOR. ctn OF IHPBIIAL lEACH A, 010 llA'IOS Cltt CLBIIK Cltt OP tMPKRIAL DF.ACII Publiahod July 21, 1976 J'mptu:iaJ. Beach Remlnclor. •\ :: \I ··J.',.: •,•i \." ... r,, ......., ~erry 'i~~~t~.st111 DOCJUt)' ClaJ:"Jc '"'·I·'• -s-i;.nr;:.~r.;lw~.., Ju, .M'fir-t:'J~"h·r:: GQitM nn. F~:::·: ~rt'MC~ _L!I - /t.~t.-, ·-·-·-..- · .... [war··rc;;:-- Ttirr';iY.lii.ZioT?:.I·n- -- -·· _.. · · - - .U.MeNo...-/i~hn ~JI·· 'fiC!UC f}., ·,·roN/MODIFfCA'II!...iN or: CONTRACr o\0'1 111 11;•4111)14 Jt!!. (41 ar1 t t •.. tut .~.~lffoliJ/oiEifi/1.\CXIrll!..,"~' '"': · - - - · "i': wml\{ii.iiC T.~niiiictmiiftci'W'iti®m f~G2474-70-H-lul3-l'OOOO:J 72 .JUL~ (J1 '· ~.~-- - · - - - - - - COnti 110. ' u.., I} tl6247j_--6./:Di.li·ir~ · lff) av (/fotlur ,,.,. ,4. trmic.f.';j:',l! "''""';;ij, . Coumranding Offir.e1·, Western UiViSTOn · --- PttTRIIuno• Navlll Facilities Engineering Co111mancl §o"'""u ~r.un,c~on o11arHA.L p 0 l\OX 727 MPC GUY!UifP 1/UfDIV 113 • • S an 8 t'llllD, ·cnl 1• f'·orn ~, a OOtn..,,ciiiK 7. twl.f AND 1\DIItfSS ' cum1 I 94066 CDIITBAt'TOII - I NAYPAC MCIIn'l' C..OIJr, · - · - - - p, '--• 1..-..:...--·--' 0 r· Cl.ty of: ItnpE'rf.nl llooch 825 Col:onfldCt AV<'J1UC! P.O. Box lt27 ~" 1 1 1 ·- ... I Willi § ----:---- coHFuRnEo NRFO DU (0212J AtTIYI'Y\'1 c:c.Pv • MlfHWIIl'N'I OP aounv.nOH uo. ---------·;;..·- - · IM11D------·(.f4t 6~ P} Imperio! Bedch, CA 92032 L '· 111S a1ocr. Arfll!' OtK•ro rho""'" ........,... ,...,drllolftlor. llrl 0 '"' ...._ n-roJ -rlldll..t.r •• "'""''"· ....ant l!lo ..........d........(IIX'!r •• dooftto• •• ,..(.. a •Ill.., ••,.,..,.....n •••• oJc.l ... r.rsto •• Nedr ''· 1•1 tel [l1111t lopplrro-1 Aa-111 h uloo4 Wo ,.,... ,., Jo ,.....,,, ol..l.O-Us.a..2.3.04.-(.o..)..(~ - - - - - - - - - - - - - - - IJ """"'" ••• ollowo ,..m... ,.., coolroof c.• td 1•111• to ~lt&l 12. l• DELETE the first paragraph of Letter Agreement datad 15 September 1967 and substitute the following in lieu thereof: "Please provide sewer sa1-v!ca to Naval Radio Station, Imperial Beach unt:U uritton not:fcoe of termination is received from the Commanding Off:lcar, Waatarn Division, Noval Facilities Engineering Command, or until s~rv!ce is otherwise C:erad.DDted under tlle provisions of your ordinance, 11 (b) Renumber modifications POOl and P002 to read POOOOl and P00002. (c) ...' 1. coHn.~:;;··-·-·HAl•! .u;:> .l':'l•:u coo1·[·--:-- -- r--;:wlm' c.;;:-,r;····------··- .-----·--- ~------ J .t1•11131d.-.J o• [ !S:JU:JT.l!l:l'l t 1 3 . - - - - - - r DATID------fln .IHI tl City of Imperial Beach 825 Coro11ado Avenue · P 0 Box 427 L .a.~.:c ·~~-r: 0 .., •'•r-1 _j ImpDrial Beach, CA 92032 ---··---·-······--·---'· --···-''"s t'····' r:. ""t·.,··J·,"t :':-. ;.rA-.-:. r •• ~:.lt,.t:-.,.~\h ~· ,..: ~· f 1t 4 •.rh"\ ·""'" lJ --------,., Hwe~~•.f•'- \Jol'tl1 .·,.,. ..a!"rtiC•t"tO h ..., ••,,, 0 4Nt lc't•'tJ t"r6o•f•••" f' rl'l Pt ·~.., uf .If' I IJIIIfiJ C.. ..._ uf:otar:Pto 1.1' '1•,....1•~•1,"" .,, 11f ta .. ltJ•4••~ •il .... 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