HomeMy WebLinkAbout1996-079 Amending the 1996 Budget ORDINANCE NO. 96- 79
AN ORDINANCE amending the 1996 budget for the City of Yakima, making
• appropriations for Water Rights Litigation and Irrigation System
Repair Costs from Unappropriated Fund Balances within various
Funds for expenditure during 1996 '
WHEREAS, the various funds indicated on the attached Schedule I contain
Unappropriated Fund Balances available for appropriation and expenditure during
1996 in various amounts and for the purposes mentioned in the attached Schedule,
and
WHEREAS, at the time of the adoption of the 1996 budget it could not
reasonably have been foreseen that the appropriation provided for herein would be
required; and the City Council finds that an emergency exists of the type contemplated
by RCW 35 33 091 and that it is in the best interests of the City to make the transfers
and appropriations herein provided, now, therefore,
BE IT ORDAINED BY THE CITY OF YAKIMA:
• Section 1. Appropriations are hereby made, for expenditure during 1996, from
Unappropriated Fund Balances in the various Funds to the various accounts and in the
various amounts, and for the various specific purposes, all as specified in the Schedule
attached hereto and incorporated herein.
Section 2. This ordinance is one making an appropriation and shall take effect
immediately upon its passage, approval and publication as provided by law and by the
City Charter
PASSED BY THE CITY COUNCIL, signed and approved this Lday of
December , 1996 /
nn Buchanan, Mayor
ATTEST:
CITY CLERK
First Reading: 11/19/96
• Publication Date 12/06/96
Effective Date 12/06/96
SCHEDULEI
IRRIGATION FUND
® APPROPRIATIONS
PROFESSIONAL SERVICES
146-4- 146 -342- 0000 - 53800 -410 $ 5,000 00
PROFESSIONAL SERVICES
146 -4- 146- 342 -W002- 53800 -410 $19.600.00
TOTAL APPROPRIATIONS $24,600 00
WATER OPERATING FUND
APPROPRIATIONS
PROFESSIONAL SERVICES
474 - 4-474- 341 -W002- 53420 -410 $14.400.00
• TOTAL APPROPRIATIONS $14,400 00
•
PRESTON G A T E S & E L L I S
ATTORNEYS
November 14, 1996 RECF Jai CITY r 1
VIA FACSIMILE OFF' - r - , , r
(509) 576 -6335
Mr Glenn K. Rice
Assistant City Manager RECEI VEp
City of Yakima c'ITY OF YAKIp fq
129 North Second Street
Yakima, WA 98901 t40� 1 4
1996
Re Acquavella and Irngation Matters OFFICE OF CITY MAN AGE R
Dear Glenn.
As you requested, we are writing regarding the Acquavella litigation and the irrigation
system review to describe the legal work that we have done to date, the work we anticipate for
the remainder of 1996 and 1997, and the estimated budget for this work.
• Acquavella Litigation
We began to represent the City in this litigation in early 1996. At stake are all the City's
claims to the nght to use surface water for purposes of its domestic and irrigation supply systems.
The City's systems presently rely primarily upon surface water Also at stake are the water nghts
that pnvate canal companies use to supply irrigation water to City residents.
When we stepped into the case, there had been an evidentiary hearing on the City's six
different water right claims, but the Judge had not yet issued his report on the claims. We were
asked to brief municipal law issues relating to the claims and certain evidentiary issues. In order
to perform this work, we reviewed all of the documentary evidence, a transcnpt of the testimony,
briefs, and other pleadings filed in the City's claims. We then tabulated the requisite elements of
any water right (priority date, place of use, purpose of use, point of diversion and quantity) for
each right claimed by the -City, and the evidence supportmg each element of each nght.
The - City also had interests in aspects of the Acquavella proceeding that were not raised
directly the City's water nght claims. At the time we began representing the City, the City had
'already filed a notice of cross- appeal in a Washington Supreme Court appeal filed by the Yakima
Tieton Irrigation District. Since then, another Supreme Court appeal has been filed. In order to
protect the City's rights, we have analyzed how these proceedings could affect the City, and
participate as necessary
A PARTNERSHIP INC:I.uDINO A PROFESSIONAL CORPORATION
ANCHORADE COEUR D ALENE LDS A NC ELLS PORT/. AND SPOKANE TACOMA W A.H I NCTON D C
5000 COLUMBIA CENTER 701 FIFTH AVENUE SEATTI.F. WASHINCiTAN 9RInd -7MR PunNF 611.1CRA ►: ,rcl*Arr c Onf., £1 1n +1
Glenn Rice. •
November 14, 1996
Page 2
•
Based on discussions with City staff we understood that our retention had two purposes.
First, we should protect and promote the City's claims in light of the existing court record.
Second, we should identify, evaluate and participate in strategy initiatives to enhance the chances
that the Court would confirm sufficient surface water nghts for the City to meet its needs
currently and in the future. This broad scope of work seems appropriate in light of the potential
consequences for the City if it had insufficient water to meet current and future demands. If the
City's water rights claims were substantially denied, it could be very difficult for the City to obtain
an alternative supply of water -- either from groundwater or through purchases -- to meet
residents' needs for water for domestic, irrigation, commercial and industnal purposes.
The highlights of our past and anticipated efforts in Acquavella and estimated budget for
this work can be summarized as follows.
Year Task Budget
Estimate
1996 Research legal and factual bases for City's claims; prepare briefing, $106,907
declarations and exhibits relating to same; file motion with teal court to
reopen the City's claim; prepare reply brief and present oral argument. •
Research and prepare and file Supreme Court bnef; analyze and make
recommendations regarding new Supreme Court appeal.
Work with parties on strategy initiatives; study parties' tnal court bnefs,
evidentiary record and supreme court pleadings, monitor orders and
other developments m trial court.
1997 Analyze trial court's anticipated report on City's claims; develop strategy $60,000
for exceptions phase; prepare Iegal and factual exceptions to this report;
prepare and present exhibits, and argument on exceptions, post- hearing
bnefng on exceptions; reply briefing and preparation of proposed order
on exceptions; develop strategy for next steps.
Possible Supreme Court activity on pending appeals; monitor other
.trial
court and Supreme Court activity
Irrigation System Review
Closely related to the City's Acquavella claims are vanous issues relating to the City's
irrigation systems. For example, the Department of Ecology has argued that because the City's
Glenn Rice.
November 14, 1996
Page 3
• imgation system experiences losses on the order of 67 %, the Judge should largely or entirely deny
the City's water rights for the imgation system.
In addition, concerns have been raised about the physical and fiscal conditions of several
municipal imgation systems. In order to determine what can be done from a financing standpoint,
it is necessary to consider legal issues relating to the financing and consolidation of LIDs. Some
issues mvolve contractual provisions put into place over half a century ago That makes it
necessary to locate, catalogue and analyze old documents relating to creation of the irrigation
systems and to their contractual obligations.
As with Acquavella, issues relating to the irrigation system are vitally important to the
City Imgation water represents a large portion of the total water supplied. The costs associated
with refurbishing the system would also be substantial. The scope of work that we have
performed and expect to perform in connection with the irrigation system are as follows:
Year Task Budget
Estimate
1996 Perform initial analysis of legally available options for addressing system $31,045
needs; brief City staff on options; collect and catalogue documents;
provide advice on options as requested by City staff.
1997 Provide further analysis of statutory and contractual issues; negotiate $45_000
and draft documents to implement City determination among options as
needed, seek regulatory approval as needed.
Cost Containment
We recognize that the legal budgets for Acquavella and the irrigation system review are
substantial. It is important to eliminate any work that is not vital to protecting the City's interests
in being able to supply needed water to its citizens now and in the future as the City grows. We
have already implemented a number of measures to limit these legal budgets.
We utilize City staff and local paraprofessionals whenever possible. The City Attorney's
office is taking the lead on the irrigation system review As the lead paralegal for Acquavella, we
have retained a Yakima resident whose hourly rate is $20, as compared to hourly rates of
approximately $60 - $75 for Seattle paralegals. Attorneys from the City Attorney's office and
Water Division staff are now attending a number ofAcquavella hearings and meetmgs that
previously were attended by an out -of -town attorney City staff now prepare litigation exhibits.
•
11 /14 /11b 111U 10 LO rAA LVO 04d 1VLL r V a L aZALILM ip v�o
Glenn Rice.
November 14, 1996
Page 4
•
In these ways, we have attempted to limit the work done by our office to work that
requires our depth and specialized knowledge. We will contmue to look for new opportunities to
limit the legal budgets for Acquavella and the imgation system review consistent with fully
protecting the City's mterests in protecting its ability to supply water
Very truly yours,
PRESTON GATES & ELLIs
1\,L7,
By (-P
Elizabeth Thomas -
ET et
J1E112573900.02912FL2UP. DOG
•
•
YAKIMA, WASHINGTON
, .r
AGENDA STATEMENT
• Item No
For Meeting of November 19. 1996
ITEM TITLE. An Appropriation Ordinance amending the 1996 Budget for the City of Yakima; making
appropriations for Unanticipated Water Rights Litigation Costs, and other Professional costs from
Unappropriated Fund Balances within various Funds for expenditures during 1996
SUBMITTED BY Dueane Calvin, Water /Irrigation Manger
CONTACT PERSON/TELEPHONE. Dueane Calvin 576 -6480
SUMMARY EXPLANATION: This appropriation is specific to the expenses for professional legal
service in defense of the City's water rights, by both Water and Irrigation, as well as other legal
matters It is projected that the legal costs for Preston Gates and Ellis participation in the
Acquavella matter will reach $106,907 by years end. Between this projected year end cost, and the
other legal costs accumulated to date, is estimated that the expenses will exceed the combined
current amended budgets of $82,900 by $39,000
Professional Services for Irrigation 24,600
Professional Services for Water 14.400
Total $39,000
diNATER ITEM - A review of the 1996 Domestic Water Budget, for expenditures related to
cquavella proceedings, indicates that the 1996 year -end expenditures in this matter will exceed the
amended budgeted by $14,400, which will bring the total to $68,200 for the Water Division by years
end.
continued
Resolution Ordinance X Contract Other (specify)
Funding Source 474 Water Operating Fund and 146 Irrigation Operating Fund
APPROVED FOR SUBMITTAL.
City Manager
STAFF RECOMMENDATION Read ordinance by title only at the November 19, 1996 Council t_
meeting Pass ordinance following second reading at the
December 3, 1996 meeting.
COUNCIL ACTION First _Reading : 11/19/96
Second Reading: 12/03/96 Ordinance No. 96 -79
•
IRRIGATION ITEMS - A review of the 1996 Irrigation Budget indicates that the 1996 year -end '
expenditures will exceed the amended budget by $24,600, which will bring the total to $53,700 by
years end
Two main factors beyond the Division's direct control have led to this situation III
• The first factor relates to the need to have special steel fittings fabricated that are required to
make repairs to antiquated wood and steel transmission mains, primarily in the General (308)
System
• The second factor is the ongoing expenses for professional legal service in defense of the
City's water rights, and legal ramifications relating to irrigation system consolidation will total
about $53,700 by years end This figure is $24,600 more than the amended budget for 1996
Other Professional Services 5,000
Professional Services for Acquavella 19.600
Total $24,600
•