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HomeMy WebLinkAbout01-07-19 City Commission Packet Materials - C7. MOU with Alliance for Water Efficiency for Net Blue Water Demand Offset ProjectCommission Memorandum Report To: Honorable Mayor and City Commission From: Jessica Ahlstrom, Water Conservation Specialist Shawn Kohtz, City Engineer Subject: Net Blue Water Demand Offset Project: Policy for Water-Neutral Community Growth Meeting Date: January 7, 2019 Agenda Item Type: Consent Item Recommendation: Authorize the City Manager, or her designee, to Sign a Memorandum of Agreement with the Alliance for Water Efficiency for the Net Blue Water Demand Offset Project. Background: In 2015, the City of Bozeman Water Conservation Division partnered with the Alliance for Water Efficiency (AWE), a stakeholder-based nonprofit organization dedicated to the efficient and sustainable use of water, to develop a model water demand offset ordinance template and methodology workbook for calculating water offsets.1 This ordinance template and methodology workbook were created as practical tools for communities to use in creating policies for achieving water-neutral community growth. These policies include methods for offsetting the projected water demand of new development through implementation of water efficiency measures to create a neutral or reduced impact on water supplies. As a continuation of this project, AWE has procured funding to support the City of Bozeman in undertaking a stakeholder-driven process to develop water demand offset policy recommendations that are appropriate for Bozeman’s unique set of challenges. These community-specific recommendations will be developed utilizing the model water offset ordinance template and methodology workbook. This funding will be used to support legal consultation, community development consultation and stakeholder group workshops to identify opportunities and barriers to revising city policy as it pertains to offsetting water demand of new development. The intent of this project is to work collaboratively with AWE and stakeholders to develop policy recommendations that can be used to support future policy discussions with the City Commission. The goal of the future policy discussions is to balance the importance of 1 The model water demand offset ordinance template and calculation methodology workbook are on file with the City’s Water Conservation Specialist. 77 sustaining Bozeman’s water supplies with practical, cost-effective water offset methods for new developments. Water demand offset policies for new development may take many forms: mandatory or incentivized; applied to indoor or outdoor water use; required for all new developments or only those imposing a water demand above a specific threshold; implemented through offsite or onsite efficiency measures; in effect throughout the year or only in times of drought; stand-alone requirements or an alternative to cash-in-lieu fee requirements; applied to various development types; established to offset the entire water demand of the development or only a portion of the demand.2 The model ordinance template was developed with the intent for communities to tailor a water demand offset ordinance to meet their specific needs. This was achieved through stakeholder group discussions and a review of existing water offset ordinances to ensure the model ordinance template’s adaptability in communities with diverse socio-economic climates, legal frameworks, and environmental challenges. The offset methodology workbook provides communities with a consistent methodology for calculating water offset requirements resulting from various offset measures. The Gallatin River basin is closed to new surface water right appropriations, making acquiring new surface water supplies challenging for the City. This project provides a timely opportunity for the City of Bozeman to start the conversation about developing practical policies that support sustainable growth and maximize already-limited water supplies so that Bozeman can continue to enjoy population and economic growth into the future. This project supports the water conservation goals set forth in the 2012 Integrated Water Resources Plan (IWRP) which call for water conservation to generate 10,000 acre-feet of additional water supply by 2062. This project also supports demand reduction targets set forth in the 2017 Drought Management Plan which aim to reduce city-wide water use during times of drought. Alternatives: As suggested by the Commission. Fiscal Effects: There will be no costs incurred by the City for this project. Any costs associated with this project will be incurred by AWE. City staff time will be spent working on this project. Attachments: Memorandum of Agreement. 2 A review of existing water offset policies adopted by other communities across the country can be found at http://www.allianceforwaterefficiency.org/net-blue-research.aspx 78 MEMORANDUM OF AGREEMENT Between CITY OF BOZEMAN And ALLIANCE FOR WATER EFFICIENCY For NET BLUE WATER DEMAND OFFSET PROJECT This Memorandum of Agreement (‘Agreement’) made this ___ day of , 2019, between the CITY OF BOZEMAN, a municipal corporation of the State of Montana (COB), and ALLIANCE FOR WATER EFFICIENCY (AWE), a non-profit corporation registered in the State of Illinois, describes the duties, agreements and obligations of the parties in connection with the undertaking of a stakeholder-driven process to develop city policy recommendations to offset projected water demand of new development with water efficiency measures. Article 1 – Roles and Responsibilities A) AWE agrees to incur costs for, manage and disburse project funds to legal and planning consultants as follows: Adam Schempp (Environmental Law Institute), Allison Mouch (Orion Planning + Design), and Dwight H. Merriam. Refer to Exhibits A-E for consultant and firm information. Project funds are equal to $35,000. B) AWE agrees to collaborate with COB and the legal and planning consultants described above to identify cost-effective and beneficial methods for offsetting future water demand in the City of Bozeman. C) AWE agrees to assist COB in developing a water demand offset policy using the Net Blue Toolkit. D) AWE agrees to manage project workflow, including arrangement of conference calls and meetings with COB and other members of the project team. E) AWE and COB agree to collaboratively gather information, identify opportunities for advancing water-neutral development, assess the local stakeholder landscape, and engage stakeholders as appropriate. 79 F) COB agrees to provide data and information required to support development of the Net Blue ordinance, including but not limited to water billing and other relevant data. All data will be anonymized prior to being provided to AWE. G) AWE agrees to prepare a report deliverable for COB that summarizes the process utilized to arrive at water demand offset policy recommendations, and that describes the benefits, costs, opportunities, and challenges associated with individual measures evaluated for the City of Bozeman water demand offset policy recommendations. H) AWE agrees to coordinate with Adam Schempp, J.D. (Environmental Law Institute) to support COB in the use of the Net Blue Ordinance Worksheet. I) AWE agrees to coordinate with Allison Mouch, AICP (Orion Planning + Design) to support COB in the use of the Net Blue Ordinance Worksheet. J) AWE agrees to coordinate with Dwight Merriam, J.D. to support COB in the use of Net Blue Ordinance Worksheet. K) AWE agrees to design and print materials for stakeholder outreach. COB agrees to provide feedback and guidance in development of project-related materials. AWE agrees that print materials will not be distributed to stakeholders without COB consent. L) COB agrees to provide necessary support and assistance in setting up local in-person meetings. Article 2 – Duration of the Agreement Should conditions arise which, in the sole opinion and discretion of COB, make it advisable to COB to cease performance under this Agreement, COB may terminate this Agreement by written notice to AWE (“Notice of Termination for City’s Convenience”). The termination shall be effective in the manner specified in the Notice of Termination for City’s Convenience and shall be without prejudice to any claims that the COB may otherwise have against AWE. Article 3 – Independent Contractor A) The parties agree that AWE is an independent contractor for purposes of this Agreement and is not to be considered an employee of the COB for any purpose. Neither AWE nor any of its employees, officials, or agents, are subject to the terms and provisions of the COB’s personnel policies handbook and may not be considered a COB employee for workers’ compensation or any other purpose. AWE is not 80 authorized to represent the COB or otherwise bind the COB in any dealings between AWE and any third parties. B) The parties agree that COB is an independent contractor for purposes of this Agreement and employees of COB are not to be considered employees of AWE for any purpose. Neither COB nor any of its employees, officials, or agents, are subject to the terms and provisions of AWE’s personnel policies handbook and may not be considered an AWE employee for workers’ compensation or any other purpose. COB is not authorized to represent AWE or otherwise bind AWE in any dealings between COB and any third parties. Article 4 – Non-Discrimination The parties agree that all hiring of persons performing under this Agreement will be on the basis of merit and qualifications. The parties will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti- discrimination laws, regulations, and contracts. The parties will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability. The parties will require these nondiscrimination terms of contractors providing services under this Agreement. Article 5 – Liability Each party hereto agrees to be responsible and assume liability for its own wrongful or negligent acts or omissions, or those of its officers, agents or employees to the full extent required by law. The parties further agree that nothing contained herein shall be construed or interpreted as (1) denying to either party any remedy or defense available to such party under the laws of the State of Montana; (2) the consent of the State of Montana or its agents and agencies to be sued; or (3) a waiver of sovereign immunity of the State of Montana beyond the waiver provided in Title 2, Ch. 9, Montana Codes Annotated. Article 6 – No Joint Venture Nothing contained in this Agreement shall be construed to create any partnership or agency relationship between the parties for any purpose, action, or transaction, including those related to this Agreement. This Agreement does not create a joint venture or any other form of separate legal entity. Article 7 – No Third-Party Beneficiary. 81 This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. Article 8 – Representatives. COB and AWE contacts for purposes of this Agreement are: AWE Name: Mary Ann Dickinson, President and CEO Address: 33 N LaSalle St., Suite 2275, Chicago, IL 60602 Phone: 773-360-5100 Email: maryann@a4we.org COB Name: Jessica Ahlstrom, Water Conservation Specialist Address: 20 East Olive, Bozeman, MT 59771 Phone: 406-582-2265 Email: jahlstrom@bozeman.net Article 9 – Execution IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their authorized representatives, on the day and year first written above. CITY OF BOZEMAN ANDREA SURRATT, CITY MANAGER APPROVED AS TO FORM: GREG SULLIVAN, CITY ATTORNEY ALLIANCE FOR WATER EFFICIENCY MARY ANN DICKINSON, PRESIDENT AND CEO 82 Exhibit A: Allison Mouch, AICP Allison joined Orion Planning + Design in September 2016, bringing to the firm over a decade of professional planning and design experience in the public, private and non-profit sectors. Her areas of specialization include comprehensive plans, public engagement and outreach, code development, project management, mapping and analysis. She is an AICP certified professional planner and an active member of the American Planning Association (APA), president of APA’s Western Central Chapter (MT, WY, ND, SD), and currently sits on the Montana Association of Planners (MAP) Board of Directors as well as the City of Helena Zoning Commission. She holds a Bachelor’s Degree in architecture from Miami University (Ohio), and a Masters in Urban and Environmental Planning from the University of Virginia in Charlottesville. 83 Exhibit B: Orion Planning + Design 84 Exhibit C: Dwight H. Merriam Dwight H. Merriam, of Hartford, Connecticut, has practiced law for four decades. He represents land owners, developers, governments, and individuals in land use matters. Dwight is a Fellow and Past President and of the American Institute of Certified Planners, a former Director of the American Planning Association, a former chair of APA’s Planning and Law Division, a former chair of the American Bar Association’s national Section of State and Local Government Law; the Connecticut member of Owners’ Counsel of America, a former Fellow of the Royal Institution of Chartered Surveyors, a Fellow of the American Bar Foundation, a member of the Rocky Mountain Land Use Institute National Advisory Board, a Fellow of the Connecticut Bar Foundation, a Counselor of Real Estate, a member of the Anglo-American Real Property Institute, and a Fellow of the American College of Real Estate Lawyers. He has taught land use law at the University of Memphis, the University of Bridgeport, Vermont Law School, the University of Connecticut School of Law, and the Quinnipiac University School of Law and has published over 200 articles and twelve books. Dwight has been named to the Connecticut Super Lawyers list in the area of Land Use Law since 2006, named as one to the Top 10 Connecticut Super Lawyers in 2016 and 2017 (ranked number 2 in the state); was one of the Top 50 Connecticut Super Lawyers in Connecticut 2014; one of the Top 100 New England Super Lawyers in 2014 and 2016 (Super Lawyers is a registered trademark of Key Professional Media, Inc.), ranked in Chambers USA: America's Leading Lawyers for Business in Connecticut in the area of Real Estate, listed in The Best Lawyers in America® in the areas of Land Use & Zoning Law and Real Estate Law since 1991 and the areas of Litigation - Land Use & Zoning and Litigation - Real Estate for 2012, and in 2017 in four areas: Land Use and Zoning Law, Litigation - Land Use and Zoning, Litigation - Real Estate, and Real Estate Law. He was also listed in The Best Lawyers in America® as Hartford Lawyer of the Year in the area of Litigation - Land Use & Zoning for 2013 and in the area of Land Use & Zoning Law for 2012. He received his B.A (cum laude) from the University of Massachusetts, his Masters of Regional Planning from the University of North Carolina, and his J.D. from Yale. He is a featured speaker at many land use seminars, and presents monthly audio land use seminars for the International Municipal Lawyers Association. Dwight has been cited in the national press from The New York Times to People magazine and HGTV magazine and has appeared on NBC’s The Today Show, MSNBC and public television. 85 Exhibit D: Adam Schempp, Senior Attorney Adam Schempp joined Environmental Law Institute as a Staff Attorney in 2007. He leads the Institute’s work on water allocation and use in the U.S. Much of Mr. Schempp’s research focuses on water resource management, specifically identifying opportunities to meet conservation and sustainability objectives through existing laws and potential legal developments. Mr. Schempp also has worked extensively on other topics, including total maximum daily loads (TMDLs) and Section 303(d) under the Clean Water Act, marine spatial planning and ecosystem-based management of marine resources, and routine program changes under the Coastal Zone Management Act. Prior to joining ELI, Mr. Schempp clerked in the legal department of the Denver Water Board and for the Native American Rights Fund. 86 Exhibit E: Environmental Law Institute Since 1969, ELI has played a pivotal role in shaping the fields of environmental law, policy, and management, domestically and abroad. They are an internationally recognized, non- partisan research and education center working to strengthen environmental protection by improving law and governance worldwide. They deliver insightful and impartial analysis to opinion makers, including government officials, environmental and business leaders, academics, members of the environmental bar, and journalists. ELI is a clearinghouse and a town hall, providing common ground for debate on important environmental issues. (Source: http://www.eli.org/about-environmental-law-institute) 87