HomeMy WebLinkAboutResolution 2006-186 agreement with the central arizona water conservation district for avra valley recharge
MARANA RESOLUTION NO. 2006-186
RELATING TO WATER; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE
AN AGREEMENT WITH THE CENTRAL ARIZONA WATER CONSERV AnON DISTRICT
FOR STORAGE OF WATER AT THE A VRA VALLEY RECHARGE PROJECT.
WHEREAS the Mayor and Council find that the terms and conditions of the agreement
with the Central Arizona Water Conservation District for storage of water at the A vra Valley
Recharge Project (A VRP) are in the best interest ofthe Town.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE
TOWN OF MARANA, ARIZONA, that the A VRP agreement between the Town of Marana and
the Central Arizona Water Conservation District, attached to and incorporated by this reference
in this resolution as Exhibit A is hereby approved, and the Mayor is hereby authorized to execute
it for and on behalf ofthe Town of Marana.
BE IT FURTHER RESOLVED that the Town's Manager and staff are hereby directed
and authorized to undertake all other and further tasks required or beneficial to carry out the
terms, obligations, and objectives of the aforementioned agreement.
PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF
MARANA, ARIZONA, st day of November, 2006.
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Mayor Ed Honea
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ATTEST:
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September 16, 2010
Mayor Ed Honea
The Town of Marana
11555 W. Civic Center Drive
1`rlarana, AZ 85653
P.O. Box 43020 • Phoenix, AZ 85080-3020
23636 North Seventh Street • Phoenix, AZ 85024
623-869-2333 • www.cap-az.com
Re: Agreement for Storage of Water at the Avra Valley Recharge Project Between CAWCD
and the Town of Marana
Dear Mayor Ed Honea:
This letter is to inform you that CAWCD has negotiated an agreement with Metropolitan
Domestic Water Improvement District (MWD) for the sale of the Avra Valley Recharge Project
(AVRP). CAWCD and MWD anticipate that final closing of the sale agreement will occur at the
end of 2010. Accordingly, pursuant to Section 22 of the Agreement for Storage of Water at the
Avra Valley Recharge Project Between CAWCD and the Town of Marana (Agreement),
CAWCD hereby gives notice that the Agreement will be cancelled effective December 31, 2010.
If you have any questions, you may contact me at 623-869-2410.
Sincerely,
Suz K. Ticknor
Seni Attorney
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AGREEMENT FOR STORAGE OF WATER
AT THE
A VRA VALLEY RECHARGE PROJECT
1.
PARTIES:(-rh
This agreement is made and entered into the I~ ~. day of .... 1
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2007, by and between the CENTRAL ARIZONA WATER i CONSE TION
DISTRICT, hereinafter referred to as "CAWCD", and the TOWN OF MARANA,
hereinafter referred to as "Marana".
RECITALS:
2.1 CAWCD is responsible for operating the Avra Valley Recharge Project
("A VRP"), an underground storage facility that is located approximately
one mile west of the CAP canal, near the Avra Valley Airport and the
Santa Cruz River.
2.2 ADWR has issued CAWCD a Constructed Underground Storage Facility
Permit (Permit No. 71-564896) for the AVRP. The Permit authorizes the
underground storage of a maximum of 11,000 acre-feet of water annually
at the AVRP. The AVRP is a State Demonstration Recharge Project
pursuant to AR.S. 945-891.01 et seq.
2.3 Marana desires to store CAP water at the AVRP and CAWCD agrees to
make available unused storage capacity at the A VRP for such storage, in
accordance with the provisions of this Agreement.
NOW THEREFORE, in consideration of the foregoing, the payments to be paid
by Marana, and the covenants and agreements contained in this Agreement, and
other good and valuable consideration, CAWCD and Marana agree as follows:
DEFINITIONS:
As used in this Agreement, the following terms, when capitalized, have the
following meanings:
3.1 ADWR: The Arizona Department of Water Resources.
3.2 AVRP TURNOUT: The point on the BKW Water Delivery System at which
CAP water is diverted from the BKW Water Delivery System into the
AVRP.
3.3 CENTRAL ARIZONA PROJECT (CAP): The water delivery works of the
CAP including, but not limited to, the CAP canal, its turnout structures and
associated measuring devices.
2.
3.
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3.4 BKW WATER DELIVERY SYSTEM: The canal system, including pump
stations, gates and measuring devices, owned by BKW Farms, Inc., which
diverts water from the CAP canal at milepost 295.5 on the CAP canal.
3.5 MARANA WATER: CAP water scheduled by Marana under the terms of
its CAP Water Service Subcontract.
3.6 PARTY/PARTIES: Either one or both of the parties to this Agreement.
3.7 PERMIT: The Constructed Underground Storage Facility Permit issued by
the ADWR for the AVRP facility, permit no. 71-564896.
4. SCOPE OF SERVICES:
This Agreement is limited to the transportation of Marana Water through the
BKW Water Delivery System to the A VRP and storage of such water at the
A VRP by CAWCD for the benefit of Marana. CAWCD shall deliver Marana
Water, which is scheduled by Marana for storage at the AVRP, to the AVRP and
CAWCD shall store such water underground at the AVRP for the benefit of
Marana.
5. TERM OF AGREEMENT:
This Agreement shall become effective when executed by both Parties and shall
remain in effect for ten years unless the Parties agree in writing to extend the
term or unless it is sooner terminated or canceled in accordance with the terms
of this Agreement.
6. CONDITIONS RELATING TO STORAGE:
6.1 All storage of Marana water at the A VRP shall be consistent with Arizona
water law.
6.2 Marana shall obtain a water storage permit from ADWR authorizing it to
store Marana Water at the A VRP.
6.3 CAWCD's storage of Marana Water at the AVRP shall, at all times,
comply with the Permit. CAWCD shall be responsible for filing annual
reports as required by the Permit. CAWCD shall promptly notify Marana
of any changes or modifications to the Permit that would affect Marana's
rights under this Agreement. If the Permit is canceled or expires for any
reason, Marana may terminate this Agreement.
7. PROCEDURE FOR SCHEDULING STORAGE CAPACITY
7.1 As soon as practicable after the date of execution of this Agreement,
Marana shall submit to CAWCD a proposed schedule indicating the
amount of A VRP storage capacity it desires to use during the year in
which this Agreement is executed. Thereafter, on or before October 1 of
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each year during the term of this Agreement, Marana shall submit to
CAWCD a proposed schedule indicating the amount of A VRP storage
capacity Marana desires to use during the following year.
7.2 As soon as practicable after receipt of Marana's proposed schedule
following the execution of this Agreement, CAWCD shall return to Marana
the schedule, as adjusted by and acceptable to CAWCD, indicating the
amount of A VRP storage capacity that is available to Marana for the year
in which this Agreement is executed. Thereafter, on or before November
15 of each year during the term of this Agreement, CAWCD shall return to
Marana the schedule, as adjusted by and acceptable to CAWCD,
indicating the amount of A VRP storage capacity that is available to
Marana for the following year.
8. WATER STORAGE RATE
Each year under the term of this Agreement, CAWCD shall establish a per acre-
foot recharge rate ("Annual Recharge Rate") for use of A VRP storage capacity
for the following year, in accordance with CAWCD's adopted Recharge Rate
Policy. Marana shall be obligated to pay CAWCD this annual Recharge Rage for
each acre-foot of storage capacity used by Marana during the year. Such
payment shall be in accordance with the provisions of Section 13 below.
9. OPERATING AGENT:
9.1 CAWCD shall be responsible for operating the AVRP.
9.2 CAWCD shall retain sole responsibility and authority for decisions relating
to the AVRP operating and maintenance practices, including maintenance
scheduling and the selection of periods when maintenance will be done.
9.3 Whenever practicable, CAWCD shall inform Marana ninety (90) days in
advance of any matter which may substantially affect the A VRP or the
rights of Marana.
10. DESTRUCTION/RECONSTRUCTION OF THE AVRP:
In the event of destruction of all or part of the AVRP, CAWCD may repair or
reconstruct the AVRP, but CAWCD shall not be obligated to do so.
11. WATER MEASUREMENT AND ACCOUNTING:
11.1 CAWCD shall base its accounting for water delivered to the A VRP on
actual measurements, methods required by the Permit and/or generally
accepted accounting and engineering practices.
11.2 CAWCD shall install and maintain a flow measurement system to measure
the amount of water diverted from the CAP into the AVRP. CAWCD shall
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test and maintain the accuracy of this system within plus or minus 5
percent of actual flows.
11.3 CAWCD shall determine evaporation losses representative of the
conditions at or near the A VRP using the method indicated in the Permit
or using actual measurements, when available. Any other losses in the
A VRP shall be calculated using generally accepted engineering practices.
11.4 All losses that occur at the AVRP, other than by evaporation, will be
calculated using generally accepted engineering practices and water-level
readings from the gages in the basins.
11.5 CAWCD shall prepare a monthly water accounting report of water stored
at the A VRP for Marana. The report shall include the daily amount of
water stored and the losses calculated as described in this Section.
11.6 CAWCD shall provide the ADWR with water accounting reports for the
A VRP as required by the Permit.
11.7 The water accounting reports prepared pursuant to this Section shall be
sent to Marana monthly and shall be retained by CAWCD for at least three
years.
11.8 CAWCD shall provide Marana copies of the A VRP annual reports
submitted to ADWR.
12. WATER QUALITY:
Marana shall indemnify and hold harmless CAWCD against all losses to third
parties resulting from water quality degradation or harm to property caused by
Marana's use of the AVRP, due to the commingling of Marana Water with the
groundwater or water flowing above or below the surface of the Santa Cruz
riverbed. Further, Marana waives any claim on its own behalf against CAWCD
for water quality degradation or harm to property arising from such commingling,
unless such claim is intended to enforce the indemnification provision of this
Section; provided, however, that Marana shall indemnify and hold harmless
CAWCD only to the extent that indemnification is not provided to CAWCD by the
State of Arizona pursuant to A.R.S. 945-898.01; and provided, further, however,
that Marana's indemnification shall only extend to the percentage of degradation
attributable to the water stored on behalf of Marana at the A VRP under the terms
of this Agreement. Marana retains the right to claim over against any other
entity, including CAWCD, storing water in the A VRP in the amount proportionate
to such amount stored by those other entities. In no event shall CAWCD assume
liability for water quality degradation resulting from the storage of water in the
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AVRP, solely due to its performance of obligations as the operating agent under
this Agreement.
13. BILLING AND PAYMENTS:
13.1 On or before the 15th day of each month, CAWCD will bill Marana for each
acre-foot of storage capacity used by Marana during the previous month.
The amount billed to Marana shall be equal to the Annual Recharge Rate
multiplied by the number of acre-feet of Marana Water delivered to the
A VRP as measured at the A VRP Turnout. Marana shall pay CAWCD
within thirty (30) days of receipt of such bill. Payment is not contingent
upon and is not related to Marana's accrual of long-term storage credits
from water stored at the A VRP.
13.2 If payment due under this Agreement remains unpaid more than sixty (60)
days after its due date, CAWCD may terminate this Agreement effective
upon written notice to Marana. In the event CAWCD terminates this
Agreement, Marana shall remain obligated to pay any outstanding
balance.
14. AUTHORIZATIONS AND APPROVALS:
Marana shall be responsible for obtaining, at its own expense, any permits,
authorizations and approvals required for the underground storage and recovery
of water in the A VRP or for Marana's performance under this Agreement.
Marana shall keep CAWCD informed of its applications for such permits and
authorizations. CAWCD will share information with Marana to assist Marana in
its permit application. Marana shall also be responsible for filing any annual
reports or other documents necessary to maintain its right to store water at the
AVRP.
15. LIABILITY
15.1 Each Party shall assume liability for its own negligence and shall
indemnify the other against any damages the non-negligent Party incurs
as a result of the negligent Party's action or inaction.
15.2 CAWCD shall assume no liability to Marana for claims of damage resulting
from CAWCD's decision to curtail or stop water flows to the A VRP site
during storm or emergency conditions.
15.3 CAWCD shall assume no liability to Marana for quantities of recoverable
or unrecoverable water stored underground or removed from underground
storage; nor to replace water lost, misdirected or otherwise failing to reach
the underlying aquifer. CAWCD, Marana and any other entities storing
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water at the A VRP shall share in any deficiency resulting from such lost,
misdirected or otherwise unstored water in proportion to the amount of the
A VRP capacity it used at the time the deficiency accrued.
15.4 Liability, as described in Section 12 related to water stored in the AVRP by
Marana prior to termination of this Agreement, shall remain with Marana
after termination of this Agreement. This Section 15.4 shall survive
expiration or termination of this Agreement, and remain in full force and
effect.
15.5 In the event any third party institutes an action against CAWCD, Marana
or other entities storing water at the A VRP for claims arising from the
activities undertaken pursuant to this Agreement, the parties named in the
action shall meet to determine the procurement of legal counsel and the
steps to take to defend against the action.
16. INSURANCE
16.1 During the term of this Agreement, unless otherwise agreed in writing by
CAWCD, Marana shall procure and maintain in force or cause to be
procured and maintained in force the following types of insurance:
16.1.1 Commercial General Liability Insurance naming CAWCD as
an additional insured, including bodily injury, personal injury,
property damage, wrongful death, and contractual liability
with a minimum limit of $1 ,000,000 per occurrence.
16.1.2 Business Automobile Liability Insurance with a minimum limit
of $1,000,000.
16.1.3 Worker's Compensation as required by Arizona State law
and Employees' Liability Insurance with limits of $1,000,000
per accident, $1,000,000 per employee per disease and
$1,000,000 aggregate for disease.
16.1.4 Commercial Umbrella - combined single limit of $4,000,000.
16.2 Any insurance carried by CAWCD shall be excess and not contributory
insurance to any insurance afforded hereunder. Marana shall submit
satisfactory proof of insurance to CAWCD prior to use of the AVRP. Such
proof of insurance shall be in the form of a certificate stating the coverage
provided and that such insurance shall not be canceled until after thirty
(30) days prior written notice thereof shall have been give to CAWCD.
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16.3 With written approval of CAWCD, Marana may self-insure or combine the
coverages required by this Agreement with coverages outside the scope
of that required by this Agreement.
16.4 If Marana fails to acquire, provide or continue the insurance coverages
required, CAWCD may terminate this Agreement immediately upon written
notice to Marana.
17. DEFAULT:
17.1 Marana and CAWCD shall pay all monies and carry out all other
performances, duties and obligations agreed to be paid and/or performed
by them pursuant to this Agreement. A default by Marana or CAWCD in
the covenants and obligations to be kept and performed by it shall be an
act of default under this Agreement.
17.2 In the event of a default by CAWCD or Marana, then, within thirty (30)
days following notice of such default either by advancing the necessary
funds and/or rendering the necessary performance. Such notice shall
specify the existence and nature of such default. If such default is not
remedied within the time specified, the non-defaulting party may terminate
this Agreement upon 24 hours written notice.
18. UNCONTROLLABLE FORCES:
Neither Party to this Agreement shall be considered in default in the performance
of any of its obligations under this Agreement (other than obligations of Marana
to pay costs and expenses). The term "uncontrollable forces" shall mean any
cause beyond the control of the Party unable to perform such obligation,
including but not limited to, the failure of or threat of failure of facilities, flood,
earthquake, storm, fire, lightning and other natural catastrophes, epidemic, war,
riot, civil disturbance or disobedience, labor dispute, labor or material shortage,
sabotage, government priorities and restraint by court order or public authority,
and action or non-action by or failure to obtain the necessary authorizations or
approvals from any governmental agency or authority not a Party to this
Agreement, which by exercise of due diligence, it shall be unable to overcome.
19. RESOLUTION OF DISPUTES:
19.1 A Party having a dispute under this Agreement that cannot be resolved by
the Parties, may submit the dispute to arbitration. Arbitration shall be
subject to the following provisions:
19.1.1 Arbitration shall be binding only upon the consent of the
Parties.
Page 7 of 10
19.1.2 A Party wishing to submit a dispute to arbitration shall
provide thirty (30) days written notice to the other party of its
intent to pursue arbitration and shall name one arbitrator at
that time. Within fifteen (15) days of receiving this notice,
the other Party to the dispute shall name one arbitrator and
give written notice to the other Party of its selection. The two
selected arbitrators shall, within five (5) days of selection of
the second arbitrator, jointly select a third arbitrator.
19.1.3 Within thirty (30) days from the selection of the third
arbitrator, the arbitrators shall hold a hearing. Within thirty
(30) days from the conclusion of the hearing, the arbitrators
shall render a decision on the dispute.
19.1.4 Arbitration shall be subject to the Arizona Arbitration Act,
Arizona Revised Statutes, Title 12, Chapter 9, Article 1. In
the event of a conflict between this Agreement and the
Arizona Arbitration Act, the provisions of this Agreement
shall prevail.
19.1.5 A Party that is dissatisfied with the results of non-binding
arbitration may pursue any other legal or equitable remedy
not expressly provided for in this Section 19 and available to
resolve the dispute.
20. ACTION PENDING RESOLUTION OF DISPUTES:
Pending the resolution of a dispute pursuant to Section 19, each Party shall
proceed, to the extent legally permissible, in a manner consistent with this
Agreement, and shall make payments required in accordance with the applicable
provisions of this Agreement. Any amount paid by a Party pursuant to this
Section 20 during the course of such dispute shall be subject to refund and
adjustment upon a final resolution of any dispute involving an amount due.
21. GOVERNING LAWS
This Agreement shall be governed by laws of the State of Arizona.
22. BINDING OBLIGATIONS:
All of the obligations set forth in the Agreement shall bind CAWCD and its
successors and assigns. This Agreement shall not be assigned by Marana or
accrue to Marana's successor, nor shall the AVRP capacity use rights hereunder
of Marana be used by another party. CAWCD retains the right to sell, lease,
Page 8 of 10
assign or otherwise convey its ownership of the A VRP to a third party. In such
event, CAWCD may cancel this Agreement upon written notice to Marana.
23. NOTICES:
23.1 Notice, demand or request provided for in this Agreement shall be in
writing and shall be deemed properly served, given or made if delivered in
person or sent by registered or certified:
Central Arizona Water Conservation District
c/o General Manager
P.O. Box 43020
Phoenix, AZ 85080-3020
The Town of Marana
c/o Mayor Ed Honea
11555 W. Civic Center Drive
Marana, AZ 85653
23.2 A Party may, at any time, by notice to the other Party, designate different
or additional persons or different addresses for the giving of notices.
24. THIRD PARTY BENEFICIARIES:
This Agreement shall not be construed to create rights in, or to grant remedies to,
any third party as a beneficiary of this Agreement or of any duty, obligation or
undertaking established herein.
25. WAIVER:
The waiver by either Party of a breach of any term, covenant or condition in this
Agreement shall not be deemed a waiver of any other term, covenant or
condition or any subsequent breach of the same or any other term covenant or
condition of this Agreement.
26. HEADINGS:
Title and paragraph headings are for reference only and are not part of this
Agreement.
27. ENTIRE AGREEMENT:
The terms, covenants and conditions of this Agreement constitute the entire
agreement between the Parties relative to the use of A VRP storage capacity, and
no understandings or agreements not herein expressly set forth shall be binding
upon them. This Agreement may not be modified or amended in any manner
unless in writing and signed by both Parties.
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IN WITNESS WHEREOF, this Agreement is executed by the Parties hereto.
CENTRAL ARIZONA WATER CONSERVATION DISTRICT
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aVid V. Modeer, President .
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Attest: J.--: ,~
Secretary
THE TOWN OF #NA
By: t1. G1'LLr
Ed Honea, Mayor
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