HomeMy WebLinkAboutResolution 2011-074 purchase agreement with aqua capital management to purchase of long term storage credits MARANA RESOLUTION NO. 2011-74
RELATING TO UTILITIES; APPROVING AND AUTHORIZING THE MAYOR TO
EXECUTE A PURCHASE AGREEMENT BETWEEN THE TOWN OF MARANA AND
AQUA CAPITAL MANAGEMENT LP FOR THE PURCHASE OF LONG TERM STORAGE
CREDITS
WHEREAS, the Town of Marana ( "Marana ") provides potable water to residents and
businesses; and
WHEREAS, the Town endeavors to purchase water annually equivalent to the volume of
water pumped; and
WHEREAS, Aqua Capital Management LP has a volume of Long Term Storage Credits
they are willing to sell which will supplement the Town's purchase of water from Central
Arizona Project.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE
TOWN OF MARANA, ARIZONA, AS FOLLOWS:
SECTION 1. The "Agreement to Sell and Assign Central Arizona Project Long -Term
Storage Credits in the Tucson Active Management Area" attached as Exhibit A to and
incorporated by this reference in this resolution is hereby approved, and the Mayor is hereby
authorized to execute it for and on behalf of the Town of Marana.
SECTION 2. The various Town officers and employees are authorized and directed to
perform all acts necessary or desirable to give effect to this resolution.
PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF
MARANA, ARIZONA, this 19 day of Jul 2011.
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ATTEST: APPROVED AS TO FORM:
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celyn C onson, Town Clerk F 7C�I'dy, lo7wn At ney
AGREEMENT TO PURCHASE AND ASSIGN
LONG -TERM STORAGE CREDITS
This Agreement to Purchase and Assign Long -Term Storage Credits (this Agreement) is entered
into by and between the TOWN OF MARANA (Buyer), an Arizona municipal corporation, and AQUA
CAPITAL MANAGEMENT LP (Seller), a Delaware limited partnership, for the purchase and
assignment of long -term storage credits (LTSCs) in the Tucson Active Management Area (AMA).
Buyer and Seller are sometimes individually referred to in this Agreement as a "Party' and
sometimes collectively referred to in this Agreement as the "Parties."
RECITALS
A. The purpose of this Agreement is to provide for the purchase and assignment of LTSCs in
the Tucson AMA in accordance with Arizona law and the requirements of the Arizona
Department of Water Resources (AD)WR), which will mutually benefit the Buyer and Seller.
B. Seller has a Long -Term Storage Account (LISA) # 70- 411400 in the Tucson AMA in which
Seller owns, holds and controls at least 1,350 acre -feet (af) of LTSCs as defined by A.R.S.
§ 45- 802.01(11). The LTSCs that are the subject of this Agreement were earned by the storage of
water in calendar year 2009 (CY09).
C. Buyer has LISA # 70- 411220 in the Tucson AMA. Buyer desires to purchase from Seller,
and Seller desires to sell to Buyer, LTSCs stored for recovery in the Tucson AMA, which shall be
assigned and transferred from Sellers LTSA to Buyer's LISA.
AGREEMENT
Now, THEREFORE, for good and valuable consideration, and based on the mutual promises and
covenants set forth in this Agreement, the Parties do hereby agree as follows:
1. Incorporation of Recitals The Recitals set forth above are true and correct and are
incorporated by reference as though fully set forth here.
2. Purchase and Sale Seller agrees to sell, convey, transfer and assign to Buyer and Buyer agrees
to purchase, receive and accept from Seller all of Sellers right, title and interest in up to 1,350.00 of
of CY09 LTSCs, which Buyer intends to recover in the Tucson AMA, pursuant to the transfer form
specifically set forth in Exhibit A to this Agreement (ADWR LTSC Transfer Form).
3. Purchase Price As full and complete consideration for the LTSCs, Buyer shall pay to Seller
$142.50 per LTSC transferred and assigned to Buyer for a total purchase price of $192,375.00
(1,350.00 of x $142.50/af).
4. Payment of Purchase Price; Transfer of Credits; Escrow Agent
A. Rita Maguire of MAGUIRE & PEARC E PLLC shall act as escrow agent for this transaction,
and is referred to in this Agreement as the "Escrow Agent."
B. Seller shall provide written notice to Buyer of the total number of LTSCS posted by
ADWR to Sellers LTSA # 70- 411400. Seller shall concurrently make available to the Escrow
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Agent: (a) the ADWR LTSC Transfer Form executed by Seller, and (b) a good and negotiable
check in the amount of $250.00 made payable to ADWR for the credit transfer fee imposed by
ADWR
C. Upon confirmation by the Escrow Agent of receipt from Seller of (1) the ADWR LTSC
Transfer Form executed by Seller and (2) a good and negotiable check in the amount of $250.00,
the Escrow Agent shall immediately notify Buyer to pay to Seller the Purchase Price, pursuant to
the Wire Instructions in Exhibit B attached to this Agreement.
D. Not later than five business days after receiving notice from the Escrow Agent of the
obligation to pay, Buyer shall pay the Purchase Price pursuant to the Wire Instructions in
Exhibit B attached to this Agreement. Upon payment, Seller shall provide written notice to the
Escrow Agent indicating confirmation of payment within three business days. Upon receipt of
the Seller's confirmation, and not before, the Escrow Agent shall release to Buyer the LTSC
Transfer Form and the check in the amount of $250.00 made payable to ADWR
5. Assknment and Transfer of Credits Buyer shall be responsible for delivering to ADWR
pursuant to the requirements of A.M. S 45- 854.01(B):
A. The ADWR LTSC Transfer Form, with Buyer's portion completed; and
B. A check made out to ADWR in the amount of $250.00 as specified on the LTSC Transfer
Form.
6. Representations and Warranties The Parties hereby represent and warrant follows:
A. Seller's Representations and Warranties
i. Seller is a valid, duly authorized limited partnership in good standing under the laws of
the State of Delaware, and the person signing below has authority to enter into this
Agreement and bind Seller to its terms.
ii. Seller has not previously alienated, assigned, transferred, pledged to a Certificate of
Assured Water Supply or a Designation of Assured Water Supply, or otherwise encumbered
the LTSCs, and Buyer shall have free and unrestricted use of the same in accordance with
applicable law.
iii. Seller shall take no action to sell, convey, transfer or assign any LTSCs to any other
parry that would diminish the LTSCs in Seller's LTSA # 70- 411400 below 1,350.00 of CY09
LTSCs until this transaction is completed with Buyer or this Agreement terminates by its
own terms.
B. Buyer's Representations and Warranties Buyer is a valid, duly authorized municipal
corporation in good standing under the laws of the State of Arizona, and the person signing
below has authority to enter into this Agreement and bind Buyer to its terms.
7. Cont Cooperation Seller and Buyer shall cooperate in good faith to ensure proper
processing by ADWR of the LTSC Transfer Form and shall provide such additional information or
materials, including but not limited to, any necessary ownership documentation or execution of
application materials as may be requested or required to complete the transaction contemplated by
this Agreement.
8. Default and Remedies If either Party defaults in performing its obligations hereunder, or if
any of its representations and warranties is untrue as of the date this Agreement is signed by that
Party or becomes untrue before completion of performance, the non - defaulting Party shall give
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written notice pursuant to Paragraph 9 of this Agreement to the Parry claimed to be in default. The
Parry receiving such notice shall have five business days to cure such default to the reasonable
satisfaction of the other Parry. If not cured, the non - defaulting Party shall be entitled to terminate
this Agreement and pursue any and all remedies available at law or in equity.
9. Notices All notices or other communications required or provided to be sent by either Parry
shall be in writing and shall be sent by United States Postal Service, postage prepaid, return receipt
requested; courier, any nationally recognized overnight delivery service; facsimile transmission; or in
person. Any such notice shall be sent by overnight service charges prepaid, to U.S. Postal Service or
private courier. Notice hand - delivered by courier for same -day delivery shall be deemed to have
been given on the date of hand-delivery. If any notice is transmitted by facsimile transmission or
similar means, the same shall be deemed served or delivered upon confirmation of transmission.
Any notice or other document sent by any other manner shall be effective only upon actual receipt.
All notices shall be addressed to the Party at the address below:
If to the Town of Marana: Utilities Department Director
Attn: Ms. Dorothy O'Brien
5100 W. Ina Road
Tucson, Arizona 85743
Fax No.: 520 - 382 -2590
With a copy to: Town Attorney
Attn: Mr. Frank Cassidy
11555 W. Civic Center Dr.
Marana, Arizona 85653
Fax No.: 520 - 382 -1945
If to Aqua Capital Management LP: Craig Bush, Managing Director
Aqua Capital Management LP
444 Regency Parkway, Suite 300
Omaha, NE 68144
Ph: (402) 934 -0066
10. Effective Date This Agreement shall not be effective until signed by both Parties.
11. Governing Law This Agreement shall be construed in accordance with the laws of the State
of Arizona.
12. Conflicts of Interest The Parties acknowledge that the Town may, pursuant to A.R.S.
§ 38 -511 or any successor statute, within three years after execution of this Agreement, and without
penalty or further obligation, cancel this Agreement if any person significantly involved in initiating,
negotiating, securing, drafting or creating this Agreement on behalf of the Town is, at anytime while
the Agreement or any extension of the Agreement is in effect, an employee or agent of any other
Parry to the Agreement in any capacity or a consultant to any other Party of the Agreement with
respect to its subject matter.
13. Complete Agreement This Agreement constitutes the complete agreement among the
Parties and supersedes all prior oral or written agreements concerning its subject matter.
14. Assignment This Agreement may be assigned by either Party only with the prior, written
consent of the other Parry.
100027109.DOC / 3} AGREEMENT TO PURCHASE LONG -TERM STORAGE CREDITS 7112120119:44 AM
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15. CounteMarts This Agreement may be executed in counterparts. Each counterpart of this
Agreement shall be deemed an original, but all counterparts shall constitute one agreement.
16. B "dm Effect All terms of this Agreement shall be binding on all successors and assigns of
the Parties.
17. Attorney's Fees If either Party breaches any provision of this Agreement, the breaching
Party shall pay to the non - breaching Party all reasonable attorneys' fees and other costs and
expenses incurred by the non - breaching Party in enforcing this Agreement or preparing for legal or
other proceedings regardless of whether suit is instituted.
18. Waiver. A waiver of any breach or default shall not be a waiver of any other breach or
default.
IN WITNESS WHEREOF, the Parties have entered into this Agreement as of the last Party's
signature date below.
SELLER BUYER
AQUA CAPI MANAGEMENT LP TOWN OF MARAN
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Printed Name: Craig Bush Printed Name: I1491V6_4
Its: Managing Director Its: 1"14 Ye 1'e
Dated: - Z S — , 2011 Dated: 19 , 2011
ATTEST:
celyn Br son, Town Clerk
APPROVE AS TO FORM:
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EXHIBIT A: ADWR LTSC TRANSFER FORM
A rizona Deparwur of Water Rauam L ong Term Storage Credit Transfer Form to be inserted here
100027109.DOC / 3} AGREEMENT TO PURCHASE LONG-TERM STORAGE CREDITS 7112120119:44 AM
Exhibit A
ARIZONA DEPARTMENT OF WATER RESOURCES
Water Management Division
3550 North Central Ave, Phoenix, Arizona 85012
Telephone (602) 771 -8500
Fax(602)771 -8689
LONG -TERM STORAGE CREDIT For Official Use Only
TRANSFER FORM A.R.S. § 45- 854.01
DATE RECEIVED:
The fee for a Long -Term Storage Credit Transfer is $250.00. Payment may be made by cash, check, or credit card (if you
wish to pay by credit card, please contact the Recharge Program at 602 - 771 - 8599). Checks should be made payable to the
Arizona Department of Water Resources. Failure to enclose the fee will cause the form to be returned. Fees for a Long -
Term Credit Transfer are authorized by A.A.C. R12 -15 -103.
[FOR SELLER] 70- 411400
Aqua Capital Mangement LP Long -Term Storage Account No.
Name of Seller
72- 558092
Arun Kottoor (402) 934 -0066
Facility Permit Number (where source water was stored)
Contact Person/Telephone Number
73- 558092.0900
444 Regency Parkway Drive STE 300 Water Storage Permit Number (authority to store source
Mailing Address water)
Omaha NE 68114
City/State /Zip
Number of long -term storage credits (in acre -feet) transferred by type(s) of water and year credits were earned.
Type: CAP acre -feet 13 5 0 year earned 2 0 0 9
Type: acre -feet year earned
[FOR BUYER]
Town of Marana, Utilities Dept If the transfer includes long -term storage credits earned
Name of Buyer from the storage of Central Arizona Project (CAP) water in
Dorothy O' Brien, 520 - 382 -2532 an Active Management Area (AMA), please state:
Contact Person/Telephone Number 1. The date of Buyer's formation (if Buyer is a legal
5100 W Ina Rd entity):
Mailing Address
2. The amount of groundwater withdrawn by Buyer
Tucson, AZ , 85743 in the AMA during the calendar year that the
City/State /Zip credits were earned: 0
70- 411220.0000
Long -Term Storage Account No. (if any) a. The groundwater right number(s) the Buyer
withdrew the groundwater pursuant to:
n/a
Revised 6 -2010
Pursuant to A.R.S. § 45- 854.01(C), the director of the Arizona Department of Water Resources may reject and invalidate
any assignment of long -term storage credits in which the stored water would not have met the requirements for long -term
storage credits as prescribed by A.R.S. § 45- 852.01 if the assignee had stored the water.
The undersigned hereby certify, under penalty of perjury, that the information contained in this report is, to the best of their
kno ge and belief, correct and complete and that they are authorized to si p on behalf of the party for whom their signature
P S.
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Aut 'zed Signature for Seller DATE Au onzed re or Buyer ATE
Managing Director
Title Title
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Revised 6 -2010
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M.-ft8=6 AWA AQUA CAPITAL MANAGEMENT LP
444 Regency Parkway Drive, Suite 300
CAPITAL MANAGEMENT LP Omaha, NE 68114 (402) 934 -0066
July 25, 2011
Ei
Rita Maguire III III
Maguire Ft Pearce PLLC JUL 2 6 2011
2999 North 44 Street, STE 630
Phoenix, AZ 85018 BY.
RE: Town of Marana Agreement to Purchase Long Term Storage Credits
Dear Ms. Maguire,
Aqua wishes to move forward to execute the Agreement to sell 1350 LTS credits to the
Town of Marana for $142.50 each.
As per out contractual obligations, Aqua has included the following items in this
package:
• A fully Executed copy of the PSA
• Executed LTSC transfer form
• A Check made payable to ADWR for the transfer fee
• A recent summary of Aqua's LTS account showing the balance
Aqua hereby requests that the Town of Marana be notified of your receipt of included
items, and asked to process payment.
Should you have any questions, please feel free to contact Arun Kottoor by a mail at
Akottoor@acmwater.com or by phone at 402- 934 -0066.
Sincerely,
'Z
Craig sh
Managing Director
Aqua Capital Management LP
EXHIBIT B: WIRE INSTRUCTIONS
Wiring Instructions to:
Aqua Capital Management LP
Bank: Wells Fargo Bank, NA
San Francisco, CA 94163
ABA 121000248
Account: 3367205303
Questions
Contact: David Burton
Chief Financial Officer
Aqua Capital Management LP
402 - 934 -0066 ext. 202
100027109.DOC / 3} AGREEMENT TO PURCHASE LONG -TERM STORAGE CREDITS 7/12/20119:44 AM
Exhibit B