HomeMy WebLinkAboutResolution 2000-018 IGA for water storage and recoveryMARANA RESOLUTION NO. 2000-18
A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA,
ACCEPTING AND AUTHORIZING THE EXECUTION OF AN INTERGOVERNMENTAL
AGREEMENT BETWEEN THE TOWN OF MARANA AND THE CITY OF TUCSON TO
SETTLE LITIGATION AND PROVIDE FOR COOPERATION IN MANAGEMENT OF WATER
STORAGE AND RECOVERY MECHANISMS.
WHEREAS, the City of Tucson (the "City") and the United States Bureau of Reclamation
have been issued Underground Storage Facility Permit (Managed) No. 71-545944.0001 (the
"Facility Permit") conditionally authorizing the operation of a managed underground storage facility
in a portion of the channel of the Santa Cruz River, approximately 5.2 miles in length (the
"Facility"), as well as related Water Storage Permits No. 73-545943.0100 and No. 73-545943.0200
by the Arizona Department of Water Resources ("ADWR") (collectively the "Storage Permits"), the
issuance of which has been timely appealed by the Town and others (the "Appeal"); and
WHEREAS, one of the conditions of the'Facility Permit precludes the initial or continued
operation of the Facility until the permittee either obtains written consent from all owners of land
within the location of the Facility, or obtains a court judgment declaring that any needed consents
have been obtained or that ADWR may permit the operation of the Facility without the consent of
such owners; and
WHEREAS, the Town is the owner of certain real property located in Pima County, Arizona,
described as Pima County Tax Parcel 999-99-9993, otherwise known as the "Orange Grove Right-
of-Way." This right-of-way was established in the following Pima County Road Proceedings: No.
38, dated February 6, 1922, and recorded October 16, 1959, in Book 9 at page 5 of Road Maps; No.
1616, dated December 18, 1967, and recorded January 11, 1968, in Book I2 at Page 74 of Road
Maps, and by deed in Docket 5077 at Page 107 on August 8, 1975, and annexed by the Town on
September 29, 1993; and
WHEREAS, the City has filed a complaint in the Superior Court of Pima County, Arizona
captioned City of Tucson v. Star Valley Investments, Inc., et al., (No. 335345) seeking, among other
things, to condemn an easement across the Orange Grove Right-of-Way; and
WHEREAS, the City and the Town, being located in the Tucson Active Management Area,
both rely on the same aquifers for water supplies and need a dependable long-term water supply for
their residents and customers, have a community ofhealth, safety and welfare concerns regarding
the methods, manner and mechanisms for water management, including the storage and recovery of
water and the mechanisms required to successfully operate a recharge and recovery system; and
WHEREAS, the City recently requested the Town consent to the use of the reach of the Santa
Cruz River that extends through the Orange Grove Right-of-Way as a Managed Recharge Facility
pursuant to the Facility Permit; and
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WHEREAS, the Town is willing to consent to the use of the Orange Grove Right-of-Way
and permit the City's operation of the Facility and recovery of water within the Facility as long as
the Town's core water resources and water operations are not adversely impacted thereby; and
WHEREAS, the City and the Town wish to resolve their ongoing disputes and avoid future
disputes by establishing a commitment to work cooperatively toward the management of their water
supplies, including effluent, and, in particular, to establish a mutually acceptable plan to allow the
recovery of water stored by the City, and staff from the Town and the City have prepared an
Intergovernmental Agreement to accomplish these goals, attached hereto as Exhibit A and
incorporated herein by this reference; and
WHEREAS, the Town is authorized to enter into this Intergovernmental Agreement pursuant
to A.R.S. {}{} 9-240 and 11-951, et seq.; and
WHEREAS, the Town Council finds that acceptance of this Intergovernmental Agreement
between the Town of Marana and the City of Tucson would benefit the residents of the Town and
be in the Town's best interest.
NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the Town of
Marana, Arizona, that the Intergovernmental Agreement, attached hereto as Exhibit A, and the
Consent document attached thereto, are hereby approved.
BE IT FURTHER RESOLVED that town officers and staff are authorized to execute and
deliver the Intergovernmental Agreement and the Consent document attached thereto on behalf of
the Town of Marana as well as any other documents necessary and proper to effectuate the purpose
of the IntergovemmentaI Agreement and this Resolution.
PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona, this
15th day of February, 2000.
ATTEST:
7/J cel C.' 5,""
b/ Town Clerk
S TO FOPdM:
~ lSa~iel .[ H0&t, li
As Town Attorney
and. not personally
MaS,°r~g'Ol~tBY/J. SUTTON, JR.
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F. ~ RODRIGUE RECORDER
RECOImEO BY: MOC.
DEPUT"! PJ'.:CORDE1\
7925 ~oO.A
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NO. OF PAGES: 10
SEQUENCE: 20000630602
03/31/2000
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Cl1'( CLERk'S OFFICE
CCCLK
roCSON crTY CLEU
255 W AJ:.AMI!:DA
TUCSON AZ 85701
~:ICKUP
AMOON'l' PAID $ 9 . so
When recQrded... return to:
Daniel J. Hochu .
Daniel J. o1i & Associates, p.e,
220 etmore Rd., Suite 110
....
Tucson, AZ 85705
Intergovernmental Agreement
between Town of Maran a and
the City of Tucson
This Iniergovemmental Agreement is entered into this ilfI!!,J.y od.~ 2000,
by and between the Town of Mar ana eTown'j. a political subdivision of the State of ona and
the City of Tucson ("City"), a political subdivision of the State of Arizona,
RECITALS
WHEREAS, the City and the United States Bureau of Reclamation have been issued
UndergroUlld Storage Facility Pennit (Managed) No. 71-545944.0001 (the "Facility Permit")
conditionally authorizing the operation of a managed underground storage facility in a portion of the
channel of the Santa Cruz River, approximatoly 5.2 miles in length (the "Facility"), as well as related
Water Storage Permits No. 73-545943.0100 and No. 73-545943.0200 by the Arizona Department
of Water Resources ("ADWR") (collectively the "Storage Permits"), the issuance, both of which
have been timely appealed by the Town and others (the "Appeal"); and,
WHEREAS, one of the conditions of the Facility Permit precludes the initial or continued
operation of the Facility until the permittee either obtains written consent from all owners ofland
within the location of the Facility, or obtains a court judgment declaring that any needed consents
have been obtained or that ADWR may permit the operation of the Facility without the consent of
such owners; and,
"
WHEREAS, the Town is the owner of certain real property located in Pima Cm.mty. Arizona,
described as Pima County Tax Parcel 999-99-9993. otherwise known as the "Orange Grove Right-
of-Way." This right-of-way was established in the following Pima County Road Proceedings: No.
38, dated February 6, 1922, and recorded October 16, 1959 in Book 9 at page 5 of Road M~ps; No.
1616, dated December 18.1967, and recorded January 11, 1968 in Book 12 ,at Page ?4ofRoad
Maps, and by deed in Docket 5077 Page 107 on August 8, 1975, and annex~d' by the t.dwri~on:
September 29. 1993; and, .,.1 { ;' "/'
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EX Pi TO RESO;UT\Pr(~N,O'-: f~1!
CITY OF TUCSO'N C6NTRACT'N"6,1qb~"'OC
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WHEREAS, the City has filed a complaint in the Superior Court of Pima County, Arizona
captioned City of Tucson v. Star Valley Investments, inc.; et at., (No. 335345) seeking, among other
things, to condemn all easement acroSS the Orange Grove Right-of-Way; and,
WHEREAS, the City and Town, being located in the Tucson Active Management Area, both
rely on the same aquifers for water supplies and need a dependable long-term water supply for their
residents and customers, have a corr.munity of health, safety and welfare concerns regarding the
methods, IDanIler and mechanisms for water managemen~ including the storage and recovery of
water and the mechanisms required to successfully operate a recharge and recovery system; and,
WHEREAS. the Town and the City wish to resolve their ongoing disputes and avoid future
disputes by establishing a ~orwnitment to work cooperatively toward the management of their water
supplies, including effluent, and, in particular, to establish a mutually acceptable plan to allow the
recovery of water stored by the City; and,
WHEREAS, the City recently requested the Town consentto the use of the reach of the SaIlta
Cruz River that ex:tends through the Orange Grove Right-of-Way as a Managed Recharge Facility
pursuant to the Facility Permit; and,
WHEREAS, the To~u is v.rilling to consent to the use of the Orange Grove Right-of-Way
and permit the City's operation of the Facility and recovery of water within. the facility as long as the
Tovvu~s core water resources and water operations are not adversely impacted thereby.
AGREEMEl'IT
Now. therefore, in consideration of the mutual covenants and conditions contained in this
AgreemeIlt, and for other good and valuable consideration the receipt and sufficieDcy of which are
hereby acknowledged, the parties agree as follows:
I, The recitals set forth above are incorporated into the tenns of this Agreement.
2.
The parties enter into this Agreement by authority of A.R.S. ~9-240.
Each party warrants and represents that it has sufficient funds within its respective budget
to discharge the obligatior.s and duties assumed under this AgreemeIlt. Should either party
fall to obtain continued funding during the term of this Agreement through a failure of
appropriation or approval offunds, this Agreement shall be deemed to terminate by operation
of law. In such event termination shall be effective upon the last day of the year for which
funds had been appropriated or approved.
Nothing L1'} this Agreement is to be construed as either limiting or extending the legal
jurisdiction of either party to this Agreement.
The purpose of this Agreement is to facilitate the cooperation of the parties toward City's
managed l'echarge and recovery project within the Town.
This Agreement shall become effective upon its execution and recordation with the Pima
County Recorder, and shall remain in effect for such time as is necessary to allow the parties
to fnlfill their obligations under this Agreement.
The Town hereby agree to execute the Consent attached as Exhibit One (the Consent) to
permit the City to use of the Orange (jrove Rigllt-of. Way for the purposes of operating the
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Facility as described in the Facility Permit, regardless of the Permit Number, subject to the
conditions set forth herein. The City is also considering expanding the Facility orto seek one
Qr more sepal"ate underground storage facility permits eucompassing additional portions of
the Santa Cruz River north ofIna Road (''Phase 2"). The City and the Town hereby intend
this Agreement to fonn a template for consideration of any issues surrounding the permitting
of any Phase 2 underground storage facility, and may, at the discretion of both of the Parties,
be amended to include any Phase 2 permitting issues. This Agreement and the consent given
hereunder does not include any operation oftbe facility in conjunction with any expansion
of the facility.
8. Neither this Agreement, nor the Consent, the Facility Permit, the Storage Permits and any
action taken in furtherance thereof shall constitute a grant or conveyance of any interest in
property owned or otherwise held by the Town; nor shall this Agreement, the Consent, the
F acUity PeI""...rut, the Storage Permits and any action taken in furtherance thereof impair such
rights as the Town may have to assert claims for damages from the release of effluent into
the Santa Cruz River bed.
9. This Agreement, the Consent, the F acUity Permit, the Storage Permits and any action taken
in furtherance thereof shall in no way preclude, hinder or limit the use of the Orange Grove
llight-cifWay by the Town or any agent, representative, contractor. tenant, successor. lessee.
permittee. in\-~itee or assign of the Town, including, wj.thout limitation. for roadV'1llY pmposes.
10. This Agreement, the Consent, the F aciHty Permit, the Storage Permits aDd any actioD taken
in furt.herance thereof shall in no way preclude either pa.ct)' from applying for or challenging
future facility, storage orrecovery permits pursuant to A.R.S. 945-801.01 et seq. or waive
any legal objection or theory that may be raised in support of or against such application.
Except for enforcement purposes and to demonstrate the Town's consent bas been obtained
as required by the Facility Permit. this Consent Agreement, the Facility Permit, the Storage
Permits and any action taken in furtherance thereof shall not be admissible in any
admirJ.strative or judicial action, nor shall the terms used herein be construed in this or any
, other proceeding as an agreement concerning the legal character of the water or effluent.
11. In the event the Town shall at any time apply for a floodplain permit for the puzpose of
entering onto the Orange Grove Right-of-Way, or for any other purpose, this Agreement, the
Consent, the Facilit"j Permit, the Storage Permits and any action taken in furtherance thereof
shall in no way form a basis for the City to object to any such floodplaio permit.
12. In making use of the Orange Grove Right-of-Way, the Tow.n sb.a11 make reasonable efforts
to accommodate the City's use consented to herein; provided, however, the City shall bear
all costs incurred in relation thereto.
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13.
Within fifteen (15) days of the effective date of this Agreement and the Consent, 0) the
Town shall file to withdraw its objections to the Facility Permit and the Storage Permits, and
(ii) the City c:md TO~l1 shall file a Stipulation to Dismiss the To\lVl1 from City of Tucson v.
Star Valley Ii'1vestments,1nc.. et aI. (No. 335345). This Agreement shall be effective upon
all of the following occurring: (i) du.e execution of the Consent by the Town, and (ii) the
Superior Court's granting of the City's Stipulation to Dismiss the Town from the
cOlldemnation lawsuit (No. 335345). The City shall not seek similar relief against town for
Orange Grove right-ot-way so long as the Consent provided herein is still in effect.
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14. The City shall, within five (5) business days ofproviding same to the ADW'R, provide to the
Town copies of all documents relating to (i) amending the Facility Pennit or the Storage
Pennit, (ii) the recovery of water stored or storage credits earned at the Facility, or (Hi)
Phase 2.
15. The City and Town agree to formally consult with each other, establish a process therefor,
and to .make a good faith effort to develop a mutually acceptable plan for recovery of the
City's stored water 01' storage credits earned under storage permits associated with the ToY/Il.
It is agreed that such recovery plan shall, to the greatest degree practicable, (i) recover the
effluent stored in ~'le facility, (if) avoid adversely impacting the Town and its water supply
while meeting the recovery needs of the City and (ill) maximize the use of water production
assets available to the ToWIl. for such recovery, and (iv) in any given year, the City will not
recover more than 125% of the water stored in the Facility during the previous year.
16. The Town's consent granted herein shall remain in effect for the duration of the Facility
Permit and may, by mutual agreement, be extended to encompass any J:enewal orexteIlsion
of the Facility Pennit;provided, however, that if the City and the Town cannot agree upon
a recovery plan, or the City bas not filed for a recovery plan within five years of the date of
this Agreement, the Town may revoke the Consent upon the issuance by the Arizona
Department of Water Resources of any permit to recover effiuent stored in the Facility. This
right to revoke may be exercised after the issuance of a complete and correct determination
by ADWR of any pennit to recover any ~ter stored in the facility, but no later than the time
limits established by the Arizona Administrative Code for the filing of an appeal from the
issuance of the recovery permit. but in no event less than ninety (90) days. Wi1hio. 5 days of
being provided notice of the Town's revocation oftbe Consent, the City shall cease accruing
any storage credits, and shall file notice of such revocation with the Department of Water
Resources, This notice shall expressl}' note that the Storage Facility no longer remains io.
compliance with the terms and conditions of the Facility permit. The City shall also file
notice of such levocation with the Pima County Recorder.
17. The parties acknowledge that a portion of the effluent stored in the Facility belongs to the
United States SecretarY of the Interior. nus Agreement can not apply to that portion of the
effluent, but otherwise applies to the recovery of any water stored or recovered by the City
or its designee. Should the City arrange to recover or purchase water stored by the Secretary
of the Interior, the City agrees to comply with the provisions of this Agreement that govern
its reCQvery.
This Agreement shall remain in effect for the duration of the Facility Permit and may, by
mutual agreement, be extended to encompass any renewal or e>.1ension of the Facility permit,
provided, however, that the Agreement shall be rescinded if the Town exercises the right to
unilaterally revoke the Consent as provided in Paragr'Aph 10.
Should the Town revoke the Consent as provided herein, the City may recover long term
storage credits stored in the Facility under the following cOl1ditions: (i) the City agrees that
it will recover only long storage credits accrued in the Facility between the effective date of
the Facility and Storage Permits and revocation of the Consent; (ii) the City will recover such
credits from within the area ofhydrologic i.mpact pursuant to a Recovery Permit issued under
A.R.S. 945-801.01 er seq., and (Hi) in any given year, the City will not recover more than
18.
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125% of the water stored in the Facility during the final year before revocation of the
consent.
20. This Consent Agreement shall be binding on the parties and their heirs, successors and
assigns.
21. Each party to this Agreement shall indemnify, defend., and hold hannless the other party. its
officers, departments, employees, agents and attorneys from, for and against any and all suits,
actions, legal or administrative proceedings, claims, demands, liens, losses. tines or damages.
including consequential damages, liability. interest, attorneys' and accountants' fees or costs
and e~peDses of whatsoever kind and nature, which are in any manner directly Ot indirectly
caused, occasioned or contributed to, by reason of any act, omission, fault, negligence,
violation, or alleged violation of any law, whether active or passive, of the indemnifYing
party, its agents, employees, or anyone acting under its direction, control, or in its behalf, in
connection with or incident to the performance of this Agreement. This indemnification
provision shall survive the term ofthis Agreement.set forth above.
22. Due to the special nature of this Agreement, neither the effluent nor this Agreement are
assignable by a party to the Agreement without the written consent of the other party.
23. The parties to this Agreement shall not discriminate against any individual in any way on
account of such individual's race, color, religion, sex, age, handicap or national origin.
Executive Order No. 99-4 of the State of Arizona is hereby incorporated into this Agreement
by reference, as if set forth fully herein.
24. The parties to this Agreement shall comply with all federal, state and local laws, rules,
regulationsj standards and Executive Orders, without limitation to those designated with this
Agreement. The laws and regulations of the State of Arizona shall govern the right.') of the
parties, the performance of this Agreement and any disputes thereunder. AJJ.y action relating
to this Agreement shall be brought in Arizona court.
25. Tow'll shall not be considered an agent of City or to be otherwise acting on City's behalf
under this Agreement, nor shall the City be considered an agent of the Towu or to be
otherwise acting on TOW'll'S behalf under this Agreement.
27.
Ihe failure of either party to cure any breach after fifteen (15) days after receipt of written
notice shall con.~titute a default under the provisions of this Agreement. Upon the defa.ult of
eit..~er part)', the non defaulting party may elect to pursue any remedy available at law or
equity .
Any notice or election required to be given pursuant to the tenns of this Agreement shall be
in 'M'iting and delivered personally or mailed by certified mail retwn receipt requested. If
personally delivered, the notice is deemed given upon delivery. If mailed certified mail
return receipt requested, notice is deemed given five (5) days following the mailing. Notices
shall be sent or delivered to the parties at the following addresses or at any such place as may
be designated from time to tinle:. ..' . - :l
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RUG-02-2000 0'3:36
C I T'y' CLERK'S OFF ICE
520 791 4017 P.10/:4
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City:
Director of Tucson Water
P.O. Box 27210
Tu(;son, AZ 85726
Copy to:
Tucson City Attorney
P.O. Box 27210
Tucson, AZ 85726
Town
Maraoa Town Manager
13251 N. Lon Adams Road
Maranal Arizona 85653
Copy to:
Marana Town Attorney
Daniel J. Hochuli & Associates, P.C.
220 E. Wetmore Rd., Suite 110
Tucson) AZ 85705
28. This Agreement contains the entire agreement of the parties and supercedes any previous
agreement or understaIlding between the parties and may not be amended or modified unless
in writing and signed by the parties.
29. Time is of the essence of this Agreement and of each and every provision of this Agreement.
30. This instrument constitutes the entire agreement between the parties pert.ai.ningto the subject
matter hereofl and all prior or contemporaneous agreements and understandings, oral or
written, are hereby superseded and merged herein.
31. This Agreement shall not be modified, amended. altered or changed except by written
agreement signed by both pa..-rti.es.
32. The headings used in this Agreement are for convenience only aDd are not intended to affect
the meaning of any provision of this Agreement.
33. This Agreement bas been negotiated by the parties and shall oot be interpreted against the
parties preparing the Agreement. The paragraph titles are included for the convenience
purposes only and are Dot to be construed as part of the terms and conditions of this
Agreement.
34. Nothing in this Agreement shall be construed as either limiting or extending the legal
jurisdiction ofTovvn or City.
35. It is not intended by this Agreement to) and nothing contained in this Agreement shall be
construed to, create any partnership. joint venture or employment relationship between the
parties or create any employer-employee relationship between City and Town employees, or
between Town and City employees. Neither party shall be liable for any debts, accounts,
obligations nor other liabilities whatsoever of the other, including (without limitation) the
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~~UG-02-2000 0'3: 37
CITY CLERK'S OFFICE
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other party's obligation to withhold Social Security and income taxes for itself or any of its
employees.
36. This Agreement, and the parties hereto> are subject to the provisions of A.R.S. g38-511.
37. Each party has obtained the appropriate resolution authorizing this Agreement.
In Witness Whereof. the parties have executed this Agreement as of the dates written below.
Town ofMarana, a municipal corporation
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By: B b S on
Its: Mayor
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REVIEWED AND APPROVED AS TO FORM & AUTHORITY
Pursuant to A.R.S. ~ 11~952 (1))J the attorneys for the parties hereto have determined that the
foregoing Agreement is in proper form and is within the powers and authority granted to the parties
under the laws of the State of Ariz.ona.
~~
Assistant Tucson City Attomey
_~v~~-J?
Daniel J. Hoch i
Marana Town Attorney
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AUG-02-2000 09:37
CITY CLERK'S OFFICE
520 791 4017 P.13/14
VIHEN RECORDED, MAIL TO:
HECTOR MARTINEZ
Administrator
Real Estate Division
201 North Stone, Sixth Floor
Tucson, Arizona 85701
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CONSENT
'This Consent is hereby granted to the City ofTuc$on. Arizona (the "City"), by the Town
of Mar ana ("Town"), this _ day of February, 2000.
\VHEREAS, the Town is the owner of certain real property located in Pima County,
Ari~ona, described as Pima County Tax Parcel 999.99-9993, otherwise known as the "Orange
Grove Right-of-Way." This right-of-way \WS established in the followin~ Pima County Road
Proceedings: No. 38, dated February 6, 1922, and recorded October 16, 1959 in Book 9 at page 5
of Road Maps; No. 1616, dated December 18, 1967, and recorded January 11, 1968 in Book 12
at Page 74 of Road Maps, and by deed in Docket 5077 Page 107 on August 8, 1975, and an.,l1ex.ed
by the Town on September 29, 1993; and,
WHEREAS, certain portions of the Orange Grove Right-of.Way are located within the
riverbed of the Santa Cruz River, between. the banks thereof: and
WHEREAS, certain effluent is discharged into the riverbed of the Santa Cru~ River; and
\VHEREAS, the City bas requested that the Town consent to the use of the reach of the
Santa Cruz river that flows through the Orange Grove Right-of-Way as a Managed Recharge
Facility under Arizona Revised Statutes ~~ 45-801 et seq; and
WHEREAS, the Town is willing to grant this Consent according to the specific terms of
the Intergovernmental Agreement betv.;een the City of Tucson and the Town of Marana ("the-
Managed Recharge lOAn), to which this Consent is attached as Exhibit One. .
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NOW TIIEREFORE, the Town of Mara.'1a hereby agrees to the following:
1. The Town hereby grants to the City consent to contain and transport effluent
which flows over the Orange Grove Riiht-of-Way for the purposes of operating an underground
. storage facility puxsuant to Permit No. 71-545944.0001 (the "Permitll) or any subsequent
underground storage facility permit issued by the .Arizona Department of Water Resources to the
City for a maIlaged. recharge project for this reach of the Santa Cruz River, subject to the
limitations of the Managed Recharge IGA.
2. Unless the Town of Maran a exercises its right to revoke as established in the
Managed Recharge lOA, said Consent shall run with the land in favor of the City of Tucson for
the duration of the permit, or any extension or renewal thereof, and shall be binding on
successors and assigns.
The Town of Marana, a mwlicipal corporation, has executed this Consent as of the date written
below.
--=:~.
By: ~ -
BOBB S ON, JR.
MAYOR
This tP,cJday of Febroary, 2000.
STATE OF ARlZONA )
) ss.
County of Pima )
The foregoing iru;trument was acknowledged before me this..2!L day of February, 2000,
by BOBBY SUTrON, JR., MAYOR, TOWN OF MARANA.
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