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HomeMy WebLinkAboutResolution 2008-171 mutual cancellation of IGA and transition agreement with CMID and CWUAMARANA RESOLUTION N0.2008-171 RELATING TO UTILITIES; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE A MUTUAL CANCELLATION OF INTERGOVERNMENTAL AGREEMENT AND TRANSI- TIONAGREEMENT WITH CORTARO-MARANA IRRIGATION DISTRICT AND CORTARO WATER USERS' ASSOCIATION; AND DECLARING AN EMERGENCY WHEREAS the Town of Marana, the Cortaro-Marana Irrigation District, and the Cortaro Water Users' Association entered into an intergovernmental agreement and a trust agreement on Sep- tember 16, 1997 (collectively, the "Original IGA"); and WHEREAS the parties to the Original IGA now desire to enter into a mutual cancellation and transition agreement, formally terminating the Original IGA and establishing terms for the parties' relationship moving forward; and WHEREAS the Town Council finds that the proposed IGA is in the best interests of the Town of Marana and its citizens. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, that the "Mutual Cancellation of Intergovernmental Agreement and Transi- tion Agreement" between and among the Town of Marana, the Cortaro-Marana Irrigation District, and the Cortaro Water Users' Association attached to and incorporated by this reference in this reso- lution as Exhibit A is hereby approved, and the Mayor is hereby authorized to execute it for and on behalf of the Town of Marana. IT IS FURTHER RESOLVED that the Town's Manager and staff are hereby directed and au- thorized to undertake all other and further tasks required or beneficial to carry out the terms, obliga- tions, and objectives of the intergovernmental agreement. IT IS FURTHER RESOLVED that it is necessary for the preservation of the peace, health and safety of the Town of Marana that this resolution become immediately effective, so an emer- gency ishereby declared to exist and this resolution shall be effective immediately upon its passage and adoption. {FC0633.DOC /} - 1 - 12/8/2008 5:57 PM FJC PASSED AND ADOPTED by the Mayor and Council of the Town of M rang, Arizona, this 16th day of December, 2008. ~'. Ma or Ed Honea {FC0633.DOC /} - 2 - 12/8/2008 5:57 PM FJC ATT/EST: l/.~^ •`~ Jocelyn C. Bronson, own Clerk F. ANN RODRIGUEZ, RECORDER RECORDED BY: C V DEPUTY RECORDER ~~~r~~ 1016 PE-1 ~ W ~ CORTARO MARP,NA IRRIGATION DISTRICT 12253 W GRIER RD '~RIZO'~Q` MARANA AZ 85653 DOCI~T: 13479 PAGE; 224 NO. OF PAGER: 7 SEQUENCE: 20090140089 01/22/2009 CIVLAG 10:39 MAIL AMOUNT PAID $ 12.00 MUTUAL CANCELLATION OF INTERGOVERNMENTAL AGREEMENT AND TRANSITION AGREEMENT DECEMBER 16, 2008 PARTIES: Town of Marana, a political subdivision of the State of Arizona (hereinafter "Town") and the Cortaro-Marana Irrigation District, Pima County, Arizona, a political subdivision of the State of Arizona (hereinafter "CMID"} and its agent, the Cortaro Water Users' Association, an Arizona nonprofit corporation (hereinafter "CWUA"). PLACE: Marana, Arizona. DATE: When fully executed to be effective December 16, 2008. RECITALS: 1. The Parties previously on the 16th day of September, 1997, entered into an Intergovernmental Agreement and a Trust Agreement (hereinafter referred to as the "Original IGA"}; 2. The intended purposes of the Parties for which the Original IGA was created have been accomplished in part and the intent of the Parties have changed and portions of the Agreement are no longer applicable or relevant, or consistent with the intent of the Parties; 3. It is the intent of the Parties to mutually cancel the existing Original IGA subject to reservation of rights by each to present IGA-related claims, each against the other, to the extent that such claims are determined to exist; and the Original IGA is now agreed to be mutually cancelled. 4. It is the intent of the Parties to execute separate instruments conveying from the Trust created by the Original IGA those wells including land and facilities {herein "wells") contributed to the Trust by each of'the Parties (Exhibit A-CMID Wells and Exhibit B-Town Wells} and to forthwith reconvey those wells to the original contributing Parties. ft is also the intent of the Parties that those wells utilized by the Town of Marana in the Trust .which belonged originally to CMID {Exhibit A Wells) be sold and conveyed by CMID to the Town in consideration of a price to be paid to CMID as mutually agreed upon or determined by arbitration. AG REEM ENTICOVENANTS: hereof. The above recitals are incorporated herein as though set forth in full and made a part 1. Upon full execution hereof, the Original IGA is mutually cancelled without waiver by either Party of existing alleged IGA-related claims and the wells in Exhibit A and Exhibit B shall be forthwith reconveyed from the Trust. 2. Interim Period - Far a period not to exceed one hundred and eighty (180) days from the date of execution of this Agreement, the water supply, cast and revenue provisions of the Original IGA aye ~ J 3 4 9 O 0 2 2 4 1 shall continue in full force and effect and shall be complied with by both Parties in a timely manner unless the purchase of one or more wells in Exhibit A by the Town contemplated herein shall be completed before then, at which time the provisions of the Original fGA shall immediately expire. The only reasons for extending the 180 day period shall be due a force majeure event or an action taken by CMID that results in the delay the acquisition process set forth in this paragraph beyond the 180 day period. Within fifteen (15} days from execution, the Town shall identify the Wells in Exhibit A it wants to purchase. In the event the Parties cannot agree on a price within forty-five (45} days from the date of execu#ion of this Agreement or sooner each Party shall select a professional appraiser and the two selected shall within an additional thirty (30) days or sooner select a thirdprofessional appraiser, each of said appraisers shall be knowledgeable and experienced in construction and equipping of wells and pumps and facilities, including the cost of associated land. They will review industry practices, pertinent facts and values and, within one hundred forty (140) days from the execution of this Agreement, shall determine by majority vote the price to be paid #o CMID, taking into consideration factors of costs of replacement and of construction and use of land and facilities, and their decision shall be binding upon the Parties. Each Party shall bear the cost of the appraiser they select, and both Parties share split the cost of the third appraiser. The determined price shall be paid forthwith to the District wi#hin twenty (20) days. The Town may satisfy payment by transfer of funds to a depository designated in writing by CMID, or at the immediate election of the Town, it may borrow in the farm of a promissory .note prepared by CMID the purchase price from CMID an amount in the principal amount payable to CMID monthly on or before the tenth of the following month over a five (5} year term, said term commencing on the first day of the month subsequent to the arbitration decision described herein, at an interest rate computed monthly on the monthly anniversary date as the Sank of America Prime Interest Rate available to its commercial borrowers plus three percent (3%), said loan to be secured at the option of CMID by the wells selected from Exhibit A. 3. Claims -Each Party shall serve and file its IGA claims believed to have accrued as a matter closing of the administration of the Original IGA within sixty (60) days. 4. Negotiation of Claims -Each being a municipal entity, the Parties shall proceed to resolve their respective IGA-related claims by negotiation or otherwise as permitted bylaw. 5. Fifty-Gallon Per Minute Deed Restriction -The Parties agree the fifty-gallon per minute deed restriction shall not be enforced as to the Parties, but that the Parties shall defend such restric#ion against third parties. 6. Exportation of Water -The Parties agree amounts of water produced within CMID and exported outside CMID on an annual basis shall be replenished in accordance with all applicable laws, rules and regulations. A copy of the annual report submitted to the Arizona Department of Water Resources pursuant to A.R.S. § 45-632 each year shall be simultaneously provided to CMID allowing audit confirmation by CMID of the Town's withdrawal and replenishment practices. 7. New Wells -Drilling of new wells shall comply with all applicable laws, rules and regulations. In the event of a need by the Town for a new well, prior to entering into any contract to purchase ar drill a new well within 1 mile of an existing CMID well, the Town shall supply CMID with all of the spec cations and criteria for said well and a copy of any permits being sought, and CMID shall be 1 provided ninety (90} days to offer the Town an existing well for purchase in an as-is condition which 3 meets or could be made to meet, at the expense of the Town, the utilization criteria of the Town. The 4 7 Town may accept such District well at a mutually agreeable price based on the following determinants: g value of land, original cost, depreciation and cost of replacement. The Town at its sole discretion 0 evidenced by a resolution of the Town Council, provided to the District, has the right to accept or deny an 0 offer of a well from CMID. If the Town does not purchase said well, it may drill a well in compliance with ~ all applicable laws, rules and regulations. ~ 8. Conveyance of Wells: Pursuant to the provisions of Section 2.2.5 of the Original IGA, the Parties shall immediately cause the Original IGA Trust to convey (i} the wells in Exhibits A and B originally contributed to the Trust by the Town or by third parties on behalf of the Town to be reconveyed to the Town, and (ii} the wells conveyed to the Trust by CMID to be reconveyed to CMID. If thereafter the ~~ Town in writing requests to purchase CMID Trust wells and makes payment of a mutually agreeable price which shall take into consideration factors of land, and cost of replacement, CMID agrees to sell and convey the wells it received from the Trust to the Town. In the event the Parties do not agree on a purchase price, the Parties shall proceed pursuant to Paragraph 2 above to select appraisers and to proceed with the arbitration provisions which shall govern resolution of the price. General Provisions. A. Time of Essence. Time is hereby declared to be of the essence of this Agreement and each term, obligation, provision and condition hereof. t3. Waiver. Failure of any party to exercise any right or option arising out of a breach of this Agreement shall not be deemed a waiver of any right or option with respect to any subsequent or different breach. C. Successors & Assigns Binding Effect. All terms, provisions and conditions hereof shall be binding upon and inure to the benefit of all parties hereto and their respective personal representatives, successors and assigns. D. Governing Law. This Agreement and the rights, duties and obligations of the parties hereto shall be deemed made under, shall be construed in accordance with and shall be governed by the internal, substantive laws of the State of Arizona. E. Construction and Miscellaneous. The language in all parts of this Agreement.shall in all cases be construed as a whole according to its fair meaning and not strictly for nor against any party. The captions and paragraph headings used herein are for convenience and reference only and are not intended to define, limit or describe the scope or intent of any provision of this Agreement. When used herein, the terms "include" or "including" shall mean without limitation by reason of the enumeration. All grammatical usage herein shall be deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the person or persons may require. The term "Person" shall include an individual, agency, corporation, partnership, trust, estate or any other entity. The wards "herein," "hereof," "hereunder," and other similar compounds of the wont "here" when used in this Agreement shall refer to the entire Agreement and not to any particular provision, section or exhibit. if the last day of any time period stated herein shall fall on a Saturday, Sunday or legal holiday, then the duration of such time period shall be extended so that it shall end on the next succeeding day which is not a Saturday, Sunday or legal holiday. The term "Agreement" shall include this Agreement and any substitution or replacement agreement and any modification, extension, renewal, or amendment to such Agreement. F. Survival. This Agreement and all representations and warranties .herein shall survive and each of the provisions hereof shall remain in full force and effect except as modified. G. Severability. It is mutually agreed that in the event any term, covenant or condition is held to be invalid or void by any court of competent jurisdiction, the invalidity o{ any such term, covenant or condition shall in no way affect any other term, covenant or condition herein contained. Unenforceability of any provision of this Agreement shall not limit or impair the operation or validity of any other provision. The parties further agree that, in the event any material term or provision hereof is found to be invalid or unenforceable in its entirety or in material part, they shall execute such additional agreements and instruments as may be necessary to accomplish, to the extent legally permissibte, the purpose and intent of each and every provision of this Agreement. H. Entire Agreement Integration Clause: Oral Modification. This Agreement, and the other documents contemplated hereby or described herein which are or have been or shall be executed by the Parties hereto, accurately and completely reflect the mutual understanding of the parties hereto and thereto as to all matters addressed herein and therein and there exist no agreements or understandings, written or oral, between the Parties, which are not spec~cally set forth herein. This ~rdc ~ 3 4 7 9 0 0 2 6 Agreement represents the entire agreement of the Parties with respect to the subject matter hereof, and all agreements entered into prior hereto are revoked and superseded by this Agreement. No representations, warranties, inducements or oral agreements have been made by any of the Parties except as expressly set forth herein. This Agreement may not be changed, modified or rescinded, except in writing, signed by all Parties to this Agreement, and any attempt at oral modification of #his Agreement shall be void and of no effect. I. Notice. All notices provided for herein shall be hand delivered, delivered by overnight courier {e.g., Federal Express) or sent by certified or registered mail, return receipt requested, addressed to all Parties hereto at its official business address or at such other address as the Party who is to receive such notice may designate in writing. Notice shag be deemed completed upon: {i) such hand delivery or courier delivery or (ii) three days after the deposit of same in a letter box or other means provided for the posting of certified mail, return receipt requested, addressed to the Party and with the proper amount of postage affixed thereto. Excep# as otherwise herein provided, actual receipt of notice shall not be required to effect notice hereunder. J. Enforcement. In the event of breach, anon-breaching Party may pursue remedies in law or equity and the Party in default hereunder shall bear the costs of the Parties who are successful in enforcing,this Agreement, including reasonable attorneys' fees, whether or not an action is actually filed. K. Amendment and Waiver. No amendment or waiver of any provision of this Agreement or any of the other documents described herein or contemplated hereby shall be effective unless the same is in writing and signed by all Parties. L. Additional Documents and Acts. The Parties hereto shall execute, acknowledge, if applicable, and deliver such additional documents and do such other acts as may be reasonably required to fully implement the intent of this Agreement. M. Cancellation. Either Party, pursuant to Arizona Revised Statutes Section 3&511, as amended, may cancel any contract it is a party to within three (3} years after its execution and without penalty or further obligation. In the event a Party elects to exercise its rights under Arizona Revised Statutes Section 38-511, as amended, said Party agrees to immediately give notice thereof to the other Party. It is agreed that both Parties have used the consulting services from time to time of common consultants. in matters unrelated to the Original IGA and to that extent mutually agree the right of cancellation provisions of the above statute are waived. N. Multiple Counterparts and Duplicates-Fully :Executed. This Agreement may be executed in multiple counterparts and when a counterpart has been executed by each of the parties hereto, such counterparts, taken together, shall constitute a single agreement. Duplicate originals may also be utilized, each of which shall be deemed an original document. However, until fully executed, this Agreement shall not be effective. 0. No Other Parties to Benefit. Except as provided herein, this Agreement is made for the sole benefit of the Parties to this Agreement and their successors and assigns and no other person or 1 entity is intended to or shall have any rights or benefits under this Agreement, whether as third-party ~ beneficiaries or otherwise. ~ 9 P. Recitals: Exhibits. The prefatory language and recitals made and stated hereinabove ~ are hereby incorporated by reference into, and made a part of, this Agreement. ~} 2 Q. Authority. Each signatory hereof warrants and represents that they are duly ~ authorized to execute this Agreement on behalf of the designated party; that all necessary corporate, governmental and governing body approvals have been received; and that this Agreement is binding upon the Party on behalf of whom the Agreement has been executed. ~~ DATED this 17 day of December, 2008. TOWN OF MARANA i .~ .. By ED HONEA, M. yor' ATTEST: t,.~-------~~ Y ~JOCELYN BRONS ,Town Clerk PURSUANT TO A.R.S. § 11-952(D), THE FOREGOING AGREEMENT HAS BEEN REVIEWED BYTHE UNDERSIGNED ATTORNEY FOR THE TOWN OF MARANA, WHO HAS DETERMINED THAT THE AGREEMENT 1S IN PROPER FORM AND IS WITHIN THE POWERS AND AUTHORITY GRANTED UNDER THE LAWS OF THIS STATE 70 THE TOWN OF MARANA. By °`'y"~ NK SSIDY, Tow ttorney CORTARO-MARANA IRRIGATION DISTRICT By Its s~ ent --- -~- ATTEST: B Secretary PURSUANT TO A.R.S. § 11-952(D), THE FOREGOING AGREEMENT HAS BEEN REVIEWED BYTHE UNDERSIGNED ATTORNEY FOR THE CORTARO-MARANA IRRIGATION DISTRICT, WHO HAS DETERMINED THAT THE AGREEMENT IS IN PROPER FORM AND IS WITHIN THE POWERS AND AUTHORITY GRANTED UNDER THE LAWS OF THIS STATE TO THE CORTARO-MARANA IRRIGATION DISTRICT. By CMID' Attorne ARO WATER USERS' Its ATTEST: ecretary 1 3 4 7 9 0 0 2 2 8 EXHIBIT A CMID WELLS er cancellation who WELL ID ADWR55 Location will own 28.2 604844 13481 N Sandario Rd Sandario well CMID -Trust well 22.1 604839 Amole 13910 N Amole Circle non- otable CMID -Trust well $.1 604845 Falstaff well, 7948 W Avra Valle Road CMID -Trust well 17-P1 604832 At end of Linda Vista E of Bross Rd well in use at this time CMID -Trust well 25-k2 60484fi 5301 N Cortaro Farms Rd Oshrin well site CMID -Trust wail i 4 7 9 ~a~ Y . ElCHIBIT B Town of Marana Wells er canoe a ion w o WELL_ID AD1NR55 Location will own Town of Marana (from 19 800804 NW comer of Sa ebrush and Sanders Diamond Ventures Town of Marana (from 25-K 604823 260 ft SW of Willow View Dr near end Lennar 17.2 613599 7950 N Silverbell Road Picture Rocks well Town of Marana Cortaro Ranch, 5475 W Cortaro Farms Road, east 26 H east 603548 well Town of Marana Cortaro Ranch, 5475 W Cortaro Farms Road, west 26 H west 603549 well Town of Marana 34.1 594508 Gladden Farms well, 12757 Lon Adams Town of Marana 1400 ft south of Sandy St between White and Honea-E 632633 VWhitne . Town of Marana Honea-W 632634 North of Sand St between Mor an and Hester. Town of Marana Town of Marana (Parks 604340 11350 W Barnett road De artment -non table Town of Marana (Twin 22-D 604825 550 ft W of I-10 in middle of "bow-tie" Peaks interchan e i 3 4 7 9 ~6LU/