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HomeMy WebLinkAboutResolution 2014-107 IGA City of Tucson and Town of Marana relating to EffluentMARANA RESOLUTION NO, 2014 -107 RELATING To UTILITIES; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE THE INTERGOVERNMENTAL AGREEMENT WITH THE CITY OF TUCSON RELATING TO EFFLUENT WHEREAS the City of Tucson and Pima County entered into an intergovernmental agreement in 1979, recorded in the office of the Recorder of Pima County, Arizona, on June 28, 1979 at Book 6059, Page 1 088 (the "1979 IGA "); and WHEREAS the City of Tucson and Pima County amended the 1979 IGA with a Supplemental Intergovernmental Agreement Relating to Effluent, recorded as Exhibit A to its authorizing resolutions in the office of the Recorder of Pinta County, Arizona, on March 14, 2000, at Docket 11254, Page 1533, and re- recorded with additional signatures as Exhibit A to its authorizing resolutions in the office of the Recorder of Pima County, Arizona, on February 6, 2004, at Docket 12233, Page 1156 (the "2000 Supplemental IGA "); and WHEREAS the City of Tucson owns the right to put the Effluent derived from the Metropolitan Area wastewater reclamation facilities (WRFs) to beneficial use pursuant to the 1979 IGA and the 2000 Supplemental IGA, subject to the Conservation Effluent Pool established in the 2000 Supplemental IGA, the entitlement of Pima County to 10% of the Effluent, and the entitlement of the Secretary of Interior to the Southern Arizona Water Rights Settlement Act (SAWRSA) Effluent; and WHEREAS three Metropolitan Area WRFs are currently operation the Tres Rios WRF (formerly known as the Ina Road WRF), the Agua Nueva WRF (which replaced the now - decommissioned Roger Road WRF), and the Randolph Park WRF; and WHEREAS Marana owns and operates the Marana WRF and the Rillito Vista WRF Pursuant to a 2013 settlement agreement with Pima County; and WHEREAS the Marana WRF and Rillito Vista WRF currently treat sewage derived from source waters not delivered by Tucson, and were Non - Metropolitan Area WRFs under the 1979 IGA and the 2000 Supplemental IGA while they were owned and operated by Pima County; and WHEREAS the City of Tucson has waived its right to control Effluent derived from Non - Metropolitan Area WRFs, subject to certain conditions in the 2000 Supplemental IGA; and WHEREAS the Marana WRF and Rillito Vista WRF are not subject to the 1979 IGA and the 2000 Supplemental IGA, and no Waters of Tucson are treated at the Marana WRF and Rillito Vista WRF as of the date of this IGA, but the Parties wish to confirm and establish the City of Tucson's rights in the event sewage derived from Waters of Tucson are ever treated at the Marana WRF, Rillito Vista WRF, or any future Marana -owned WRFs; and �00039881.DOCX 121 Resolution No. 2014 -107 10/10/2014 4:29 PM FJC WHEREAS the IGA addressed b this resolution is intended to compl with the 2000 Supplemental IGA, which declares that, "Reasonable efforts should be made, consistent with the principles and purposes of this Supplemental IGA, to g ive other Water Providers reasonable access to Effluent derived from the water the suppl so lon as the pa all costs associated with the use of said Effluent" ( 2000 Supplemental IGA at Section 2.4) and WHEREAS the Ma and Council of the Town of Marana find that the best interests of Marana and its citizens are served b enterin into this inter a NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, that the "Cit of Tucson Town of Marana Inter A Relatin to Effluent" attached to this resolution as Exhibit A is hereb approved, and the Ma is authorized to execute it for and on behalf of the Town of Marana. IT IS FURTHER RESOLVED that the Town Mana and staff are hereb directed and authorized to undertake all other and further tasks re or beneficial to carr out the terms, obli conditions and objectives of the inter a PASSED AND ADOPTED b the Ma and Council of the Town of Marana, Arizona, this 2 st da of October, 2014. ATTEST: Ma Ed onea APPROVED AS TO FORM: ocel C. ronson, Town Clerk ra C V I i�d/ T own A e L, 1-11 (0003988 1. DOCX / 2) Resolution No. 2014-107 - 2 - 10/1 012014 4:29 PM FJC CITY OF TUCSON TOWN OF MARA.NA INTERGOVERNMENTAL AGREEMENT RELATING TO EFFLUENT This intergovernmental agreement ( "this IGA ") is entered into by and between the CITY OF TUCSON ( "Tucson "), an Arizona municipal corporation, and the TOWN OF MARANA ( " Marana "), an Arizona municipal corporation. Tucson and Marana are sometimes collectively referred to as the "Parties" and each individually referred to as a "Party." SECTION I. RECITALS. The following recitals represent the Parties' general principles of agreement, which are incorpo- rated in the specific covenants that follow. 1.1 Tucson and Marana are empowered by A.R.S. Title 11, Chapter 7, Article 3 to enter into this IGA. 1.2 Marana owns and operates a water utility within and outside Marana's town boundaries. 1.3 Marana owns and operates a wastewater utility within and outside Marana's town bounda- ries. 1.4 Tucson is authorized by the Tucson Charter, Chapter IV, Section 1(7) "...to establish, main- tain, equip, own and operate, works and appliances within and without city for supplying Tucson and its inhabitants also persons, firms and corporations outside Tucson, including other municipal corporations, with water...." 1.5 Tucson owns and operates a water utility within and outside the city limits of Tucson, and provides water service within Marana's town limits. 1.6 Tucson and Pima County entered into an intergovernmental agreement in 1979, recorded in the office of the Recorder of Pima County, Arizona, on June 28, 1979 at Book 6059, Page 1088 (the "1979 IGA "). 1.7 Tucson and Pima County amended the 1979 IGA with a Supplemental Intergovernmental Agreement Relating to Effluent, recorded as Exhibit A to its authorizing resolutions in the of- fice of the Recorder of Pima County, Arizona, on March 14, 2000, at Docket 11254, Page 1533, and re- recorded with additional signatures as Exhibit A to its authorizing resolutions in the office of the Recorder of Pima County, Arizona, on February 6, 2004, at Docket 12233, Page 1156 (the "2000 Supplemental IGA "). 1.8 Pursuant to the 1979 IGA and the 2000 Supplemental IGA, Tucson owns the right to put the Effluent derived from the Metropolitan Area WRFs to beneficial use, subject to the Conser- ( 00000538. DOCX 15 ) 1 - 10/8/2014 9:27 AM vation Effluent Pool established in the 2000 Supplemental IGA, the entitlement of Pima County to 10% of the Effluent, and the entitlement of the Secretary of Interior to the SAWRSA Effluent. 1.9 Three Metropolitan Area WRFs are in operation as of the date of this IGA, the Tres Rios WRF (formerly known as the Ina Road WRF), the Agua Nueva WRF (which replaced the now - decommissioned Roger Road WRF), and the Randolph Park WRF. 1.10 Pursuant to a 2013 settlement agreement with Pima County, Marana owns and operates the Marana WRF and the Rillito Vista WRF. The Marana WRF is located northwest of the inter- section of Luckett and Marana roads, approximately 17 miles northwest of Tucson. The Rilli- to Vista WRF is located adjacent to the Arizona Portland Cement plant near the Tangerine Road interchange on I -10 in the unincorporated community of Rillito. The Marana WRF and Rillito Vista WRF currently treat sewage derived from source waters not delivered by Tuc- son, and were Non - Metropolitan Area WRFs under the 1979 IGA and the 2000 Supplemental IGA while they were owned and operated by Pima County. 1.11 Tucson has waived its right to control Effluent derived from Non - Metropolitan Area WRFs, subject to certain conditions in the 2000 Supplemental IGA. 1.12 Under Marana's ownership and operation, the Marana WRF and Rillito Vista WRF are not subject to the 1979 IGA and the 2000 Supplemental IGA, and no Waters of Tucson are treat- ed at the Marana WRF and Rillito Vista WRF as of the date of this IGA, but the Parties wish to confirm and establish Tucson's rights in the event sewage derived from Waters of Tucson are ever treated at the Marana WRF, Rillito Vista WRF, or any future Marana -owned WRFs. 1.13 This IGA is intended to comply with the 2000 Supplemental IGA, which declares that, "Rea- sonable efforts should be made, consistent with the principles and purposes of this Supple- mental IGA, to give other Water Providers reasonable access to Effluent derived from the water they supply, so long as they pay all costs associated with the use of said Effluent." 2000 Supplemental IGA, Exhibit 2, at Section 2.4. NOW, THEREFORE, in consideration of the mutual promises and covenants contained in this IGA, the Parties covenant and agree as follows: SECTION II. STATEMENT OF PURPOSE. This IGA is intended to create, set forth, and define the relationships between Marana and Tuc- son regarding the disposition of the following classes of Effluent and to describe the rights and duties of each Party to the other regarding this Effluent: 2.1 Marana Metropolitan - Treated Effluent 2.2 Marana Self-Treated Effluent 2.3 Tucson Marana- Treated Effluent (00000538.nOCx i 5) -2- 10/8/2014 9:27 AM SECTION III. DEFINITIONS. Notwithstanding any similarities as may appear when compared to the definitions in the 1980 Groundwater Management Act or elsewhere in Arizona Revised Statutes Title 45, or any other statute, the following words and phrases shall have the following defined meanings for the pur- pose of this IGA: 3.1 Addendum An amendment, addition, or deletion to this IGA adopted and approved by the Parties shall be called an "Addendum" and shall be numbered and dated, such as "Adden- dum I. Adopted May 1, 2015 ." 3.2 Available Effluent The quantity of remaining Effluent in any calendar year after the delivery of SAWRSA Effluent to the United States and the delivery of the Conservation Effluent Pool. 3.3 Conservation Effluent Pool Effluent from the Metropolitan Area WRFs reserved for Ripari- an Projects (as defined by the 2000 Supplemental IGA) under Section V of the 2000 Sup- plemental IGA. 3.4 Default. An act or omission that violates this IGA. 3.5 Effluent wastewater that has received a minimum of secondary wastewater treatment neces- sary to meet discharge permit standards, including wastewater that has received treatment to Reclaimed water standards or higher standards. 3.G Marana DMA The Marana Designated Management Area as approved by the United States Environmental Protection Agency under Section 208 of the Clean water Act. 3.7 Marana Metropolitan-Treated Effluent. Effluent derived from the waters of Marana, treated at a Metropolitan Area WRF, and assigned by Tucson to Marana pursuant to this IGA. 3.8 Marana -owned WRF A WRF owned by Marana that serves the Marana DMA. As of the date of this IGA, the Marana WRF and the Rillito Vista WRF are the only Marana -Owned WRFs. 3.9 Marana Self- Treated Effluent Effluent derived from the waters of Marana and treated at a Marana -owned WRF. 3.10 Metropolitan Area WRF A current or future WRF that serves the Pima County DMA and (1) is physically integrated into the existing metropolitan sewerage system; (2) serves any portion of the integrated water service area of Tucson; or (3) serves any portion of the water service area of a water Provider that was served by WRFs in the metropolitan area, as de- fined in the 1979 IGA, as of February 8, 2000. The Tres Rios WRF, the Agua Nueva WRF, and the Randolph Park WRF are Metropolitan Area WRFs as of the date of this IGA. 3.11 Non - Metropolitan Area WRF A current or future wRF that does not meet the definition of a Metropolitan Area WRF. WRFs in the Marana DMA (currently the Marana WRF and the Rillito Vista WRF) and the existing WRFs at Mount Lemmon, Arivaca Junction, Avra Val- f00000538.DOCX 15 1 -3- 10/8/2014 9:27 AM ley, Green Valley, Corona de Tucson, and Pima County Fairgrounds are Non - Metropolitan Area WRFs. 3.12 Pima County DMA. The Pima County Designated Management Area as approved by the United States Environmental Protection Agency under Section 208 of the Glean water Act. 3.13 Reclaimed water wastewater that has received treatment to a quality suitable for open ac- cess reuse under state and federal laws. 3.14 SAWRSA Effluent The 28,200 acre feet, plus losses, of annual Effluent entitlement which Tucson assigned and conveyed to the United States by contract dated October 11, 1983, pur- suant to the provisions of the Southern Arizona water Rights Settlement Act ("SAWRSA"). 3.15 Tucson Marana- Treated Effluent Future effluent derived from the waters of Tucson, treated at a Marana -Owned WRF, and assigned by Marana to Tucson pursuant to this IGA. 3.1 waters of Tucson All water purchased, pumped or developed by Tucson in any way, includ- ing Central Arizona Pro ect water, groundwater, surface water, and Effluent, for which Tuc- son has a water right or a contractual right. The term "waters of Tucson" does not include Tucson water deliveries Marana reimbursed with water credits pursuant to the intergovern- mental agreement between Tucson and Marana regarding Tucson water service within the Marana town boundaries recorded in the Pima County Recorder's office on December 13, 2000 at Docket 11444, Page 1792 or any extensions of it (collectively the "water Service IGA. " ). 3.17 Waters of Marana All water purchased, pumped or developed by Marana in any way, includ- ing Central Arizona Project water, groundwater, surface water, and Effluent, for which Ma- rana has a water right or a contractual right. The term "Waters of Marana " includes Tucson water deliveries Marana reimbursed with water credits pursuant to the water Service IGA. 3.18 WRF Water reclamation facility. SECTION IV. PROVISIONS RELATING TO EFFLUENT. 4.1 Marana's Rights to Marana Self-Treated Effluent. Tucson disclaims any right (if any) to put Marana Self - Treated Effluent to beneficial use, and recognizes Marana's right to put Marana Self-Treated Effluent to beneficial use. 4.2 Marana's Rights to Marana Metropolitan-Treated Effluent. Subject to subparagraphs 4.2.1 through 4.2.4 below, Tucson hereby assigns to Marana its right to put that quantity of Marana Metropolitan - Treated Effluent to beneficial use in any calendar year during this IGA deter- mined in accordance with Exhibit I to this IGA. 4.2.1 The 1979 IGA and 2000 Supplemental IGA assign the Effluent produced at the Metropolitan Area WRFs to Tucson. Tucson's assignment of rights in Effluent to Marana is subject to such obligations as Tucson may have under the terms of the 1979 IGA and 2000 Supplemental IGA with Pima County. ( 00000538. DOCX 15 ) - 1.018120 1 4 9:27 AM 4.2.2 The quantity of Effluent assigned by Tucson to Marana annually under this IGA shall be calculated in accordance with the Effluent Allocation Formula. in Exhib- it I to this IGA. Marana's share of the Effluent, as calculated pursuant to the Ef- fluent Allocation Formula, shall be reduced by its proportionate participation an- nually in providing Effluent to .meet the following pre - existing obligations of Tucson under the 1979 IGA and 2000 Supplemental IGA: 4.2.2.1. Under SAWRSA., to make SAWRSA Effluent available each year to the United States; 4.2.2.2. To contribute Effluent to the Conservation Effluent Pool established in the 2000 Supplemental IGA; and 4.2.2.3. Under the 1979 IGA and the 2000 Supplemental IGA, the grant to Pima County of the use of 10% of Tucson's Effluent entitlement remaining after the SAWRSA Effluent and the Conservation Effluent Pool. 4.2.3 The point of delivery of Marana Metropolitan - Treated Effluent will be at the Tres Rios WRF outfall or at some other point or points reasonably agreed upon in writ- ing by Tucson and Marana. 4.2.4 The schedule for delivery of Effluent assigned to Marana under this IGA shall be the quantity established by the application of the Effluent Allocation Formula at- tached as Exhibit 1 to this IGA. 4.3 Tucson's Rights to Tucson Marana - Treated Effluent. 4.3.1 In consideration of the rights granted to Marana under this IGA, and notwith- standing any potential claim of right to Effluent derived from Marana -Owned IGAs pursuant to the doctrine established in Arizona Public Service Co. v. Long, 160 Ariz. 429, 773 P.2d 988 (1989), Marana hereby assigns to Tucson the right to put Tucson Marana - Treated Effluent to beneficial use in a quantity to be deter- mined based on the limitations and conditions existing when Marana first begins treating Waters of Tucson, using the same factor ( "F") used by the Parties as de- scribed in Exhibit 1 to this IGA, and adjusting for then - existing obligations of Marana in a way similar to the adjustment for Tucson obligations as set forth in Exhibit 1 to this IGA. 4.3.2 Tucson shall be involved in and shall be given an opportunity to comment on any proposal to revise Marana's designated management area for sewer service under Section tog of the Clean water Act that results or may result in Tucson water service areas being brought within Marana's designated management area. 4.4 Recharge. of Effluent. 4.4.1 Marana shall not oppose any Effluent recharge or storage project, whether a "con- structed" recharge project or a "managed" recharge project, developed by Tucson for the storage of Effluent, unless the project causes material harm to Marana. (00000538.DOCx / s ) - S - 10/8/2014 9:27 AM 4.4.2 Tucson shall not oppose any Effluent recharge or storage project, whether a "con- structed" recharge project or a "managed" recharge project, developed by Marana for the storage of Marana Self-Treated Effluent or Marana Metropolitan - Treated Effluent, unless the project causes material harm to Tucson. 4.4.3 Marana may store Marana Metropolitan - Treated Effluent in the managed or con- structed recharge facilities of Tucson pursuant to an Effluent storage permit is- sued by Arizona Department of water Resources ( "ADWR ") to Marana, on the same terms and conditions as Tucson's agreement to store Pima County's Efflu- ent under Sections 6.5 and 7.2 of the 2000 Supplemental IGA. Additional reason- able terms for Marana's use of the recharge facilities may be established by writ- ten agreement between Marana and Tucson. 4.4.4 Tucson will recover for Marana, as part of Tucson's program to recover its stored Effluent, Marana Metropolitan- Treated Effluent stored by Marana in a Tucson managed or constructed recharge facility if, and to the extent that, Marana and Tucson reach written agreement on the terms of the recovery of that stored Mara- na Metropolitan - Treated Effluent. 4.4.5 In no event shall any recharge credits (whether long -term storage credits or annual storage credits) derived from either Tucson's Effluent or Marana Metropolitan - Treated Effluent lead to any water withdrawals within the other Party's then exist- ing water service area, unless those withdrawals are within the area of hydrologic impact of the Effluent storage facility where the recharge credits were earned or unless the withdrawal has been approved in writing by the Party from whose wa- ter service area the withdrawal is to be made. Withdrawals within the Marana town limits or within the geographic boundaries of the Cortaro - Marana Irrigation District or Cortaro Water Users' Association shall be in accordance with the in- tergovernmental Agreement Regarding Permitting and operating Managed In- Channel Recharge of Effluent in the Santa Cruz River Channel recorded in the of- fice of the Recorder of Pima County, Arizona, on June 6, 2003, at Docket 12066, Page 3364, and the Zoo? Master Recovery Plan Pursuant to that Intergovernmen- tal Agreement of 2003 Regarding Permitting and Operating Managed In- Channel Recharge of Effluent in the Santa Cruz River Channel, a copy of which is at- tached to and incorporated in this IGA as Exhibit 2 to this IGA, as each may be amended from time to time. 4.4.6 Marana (or its Effluent customers) shall be solely responsible for all costs associ_ aced with (1) the recharge, use or reuse of Marana Metropolitan- Treated Effluent, and (2) delivery of Marana Metropolitan- Treated Effluent to any recharge facility or use or reuse facility. None of the costs of recharge, use, reuse, delivery or treatment of Marana Metropolitan- Treated Effluent shall be charged, directly or indirectly, by Marana to water ratepayers of Tucson or to sewer ratepayers located within Tucson's water service area unless those water ratepayers or sewer rate- payers are located within Marana's boundaries. None of the costs or recharge, use, reuse, delivery or treatment of Tucson's Effluent shall be charged, directly or indirectly, by Tucson to water ratepayers of Marana or to sewer ratepayers located { 00000538. DOCX 15) 1 -6- 10/8/2014 9:27 AM within Marana's water service area unless those water ratepayers or sewer rate- payers are located within Tucson's boundaries. 4.5 Tucson's Sale of Effluent or Reclaimed water for Use Within Marana Tucson will not sell ......................... . any Effluent or Reclaimed water to municipal or industrial customers for use within Mara - na's water service area without Marana's written approval. If Marana's water service area expands in the future, this provision does not apply to any municipal or industrial Effluent customers of Tucson with whom. Tucson has a contractual relationship in effect at the time of the expansion of Marana's water service area. SECTION V. MISCELLANEOUS PROVISIONS. 5.1 Force Maj eure If any Party is rendered unable, wholly or in part, by force maj eure reasons to carry out its obligations under this IGA, the obligations of both Marana and Tucson so far as they are affected by such force maj eure shall be suspended during the continuance of any in- ability so caused, but for no longer period; and such cause shall be so far as possible reme- died with the best efforts of the disabled Party and with all reasonable dispatch. The term "force maj eure" as employed in this IGA shall mean acts of God, strikes, lockouts or other industrial or labor disturbances, acts of the public enemy, wars, blockades, insurrections, ri- ots, epidemics, landslides, lightning, earthquakes, fires, storms, floods, washouts, droughts, unavoidable interruptions in electric power to drive pumps, interruptions by government not due to the fault of the Parties, including injunctions, civil disturbances, explosions, well col- lapses, breakage or accident to machinery or transmission facilities, or action or non - action by governmental bodies in approving or failing to act upon applications for approvals or permits which are not due to the negligence or willful action of the Parties. Nothing in this paragraph shall be construed as requiring either Party to settle a strike or labor dispute against its will or as prohibiting either Party at its own expense from using whatever self-help remedies may be available to it. 5.2 Alternative Dispute Resolution. The following non - binding alternative dispute resolution process shall be followed for any dispute arising under this IGA: 5.2.1 Tucson and Marana shall meet and confer about any controversy or claim arising out of or related to this IGA, or Default under this IGA, in an attempt to resolve the matter. If the matter that cannot be resolved by Tucson and Marana, each shall appoint one arbitrator to a three party panel of arbitrators which will decide the dispute. The appointment of the two arbitrators will occur within 30 days of the meeting referred to above. 5.2.2 Arbitrators appointed to the arbitration panel shall be skilled and experienced in the field or fields pertaining to the dispute. The two selected arbitrators shall meet within 30 days of the later of the two arbitrators' appointment, and at their first meeting they shall appoint a third neutral arbitrator to complete the arbitration panel. The third arbitrator shall act as a chairperson of the arbitration panel and shall. direct the arbitration proceedings. ( 0000053 8. DoC x / 5) -7- 1 0/8/2014 9:27 AM 5.2.3 The arbitration process shall be limited to the matter submitted by Tucson or Ma- rana. The arbitration panel shall not rewrite, amend, or modify this IGA or any other agreement between the Parties or to which either of the Parties is a party. 5.2.4 There shall be no discovery beyond the information and documents made availa- ble during the informal meet and confer process provided for in this section and the exchange of information or documentation provided for in this IGA. 5.2.5 No formal evidentiary hearing shall be provided unless one is requested by either Tucson or Marana in writing no later than the conclusion of the meeting where the neutral arbitrator is appointed. If no hearing has been requested, the arbitration panel will meet as deemed necessary by the panel and shall, in a manner it deems appropriate, receive evidence, receive argument or written briefs from Tucson and Marana, and otherwise gather whatever information is deemed helpful by the pan- el. The arbitration process to be followed shall be informal in nature, and Tucson and Marana shall not be entitled to trial -type proceedings under, for example, formal rules of evidence. 5.2.6 If Tucson or Marana requests a hearing, the arbitration panel shall meet to receive evidence and receive arguments and written briefs from Tucson and Marana as follows: 5.2.6.1. The arbitration panel shall, within five days of the appointment of the neu- tral arbitrator, schedule a date for a hearing, which shall be held within 60 days of the appointment of the neutral arbitrator. 5.2.6.2. Within ten days of the appointment of the neutral arbitrator, Tucson and Marana shall each submit a brief of no longer than 15 pages setting forth its case. The brief shall include discussion of all issues relevant to the Par- ty's case. Each Party shall, as an attachment to its brief, include declara- tions of not more than two experts and any relevant factual witness. Decla- rations of expert witnesses must include all opinions to be elicited upon di- rect testimony and a complete explanation of the basis of these opinions. Disputes with respect to the sufficiency of declarations or the appropriate- ness of the testimony shall be resolved by the witnesses available for cross - examination at the time of the arbitration hearing. Factual witnesses for which a declaration is prepared shall be made available for cross - examination at the time of the arbitration hearing only if requested by the other Party. 5.2.6.3. Each Party shall have the opportunity, within five days of the close of hearing, to submit a closing brief not to exceed ten pages. The closing brief shall be argument with no additional factual evidence to be submit- ted. 5.2.6.4. Factual witnesses shall not be permitted to give testimony under direct ex- amination. { 0000053 8, DOCX 15) -8- 10/8/2014 9:27 AM 5.2.6.5. Each Party shall have a maximum of four hours to present its case in total. This time shall include opening and closing statements, direct presentation and any cross- examination of the other party's witnesses. Each Party shall have the right to reserve part of its time to present up to one hour of rebut- tal testimony. 5.2.6.6. The matter shall be deemed submitted at the submission of closing briefs. 5.2.6.7. The panel of arbitrators shall render its final decision in the dispute within 60 days after the date of naming the third arbitrator. If the arbitrators disa- gree as to the determination, any two of the three arbitrators may join to form a majority and the decision of those two arbitrators will be final for the panel. The panel will issue a written decision. 5.2.7 If a Party declines to accept the decision of the arbitration panel, it may initiate an action in the appropriate court within 60 days of the issuance of the panel's writ- ten decision to obtain a j udicial determination of the underlying dispute. If an ac- tion is not filed within 60 days of the panel's decision, the decision of the panel shall be deemed to be final and not subject to judicial review. The decision of the panel and record of the arbitration shall not be privileged and may be submitted as part of the record by either Party in support of its case. 5.2.8 All costs incurred by the arbitration panel shall be shared equally by Tucson and Marana, and the expenses of the arbitration panel shall be paid expeditiously. 5.2.9 A Party shall not be considered in Default for an issue being addressed in the al- ternative dispute resolution process or appropriate judicial proceeding until a final decision has been rendered. 5.3 Information Exchange. Upon reasonable request, Tucson and Marana will provide to each other all necessary information and documentation required for the purpose of this IGA, to the extent the information and documentation is reasonably in its possession. The requesting Party will reimburse the other Party for all costs of providing the information and documen- tation, including staff time and reproduction costs. 5.4 Attorneys' Fees In the event of any litigation between the Parties to enforce any provision of this IGA or any right of either Party under this IGA, the unsuccessful Party agrees to pay to the successful Party all reasonable costs and expenses, including reasonable attorneys' fees, incurred in the litigation by the successful Party, all of which shall be included in and as part of the judgment rendered in the proceeding. 5.5 Assignment of IGA No Party shall have the right to assign this IGA or any interest in this IGA except to their respective successors. This IGA shall be binding on the successors of the Parties. 5.6 Notices. All notices shall be in writing and together with other mailings pertaining to this IGA shall be made to: (00000538.DUCx 15 ) -. 101812014 9:27 AM FOR MARANA: Town Manager Town of Marana 11555 West Civic Center Drive, Bldg. A Marana, Arizona 85653 WITH COPIES To: Marana Utilities Director Town of Marana 5100 west Ina Load Tucson, Arizona 85743 Marana Town Attorney Town of Marana 115 5 5 west Civic Center Drive, Bldg. A Marana, Arizona 85653 FOR TUCSON: Director Tucson Water P.O. Box 27210 Tucson, Az 85726 WITH COPY To: City Attorney City of Tucson P.O. Box 272I0 Tucson, Az 85726 or as otherwise specified from time to time by each Party 5.7 waiver waiver by either Party of any breach of any term, covenant or condition contained in this IGA shall not be deemed a waiver of any other terra, covenant or condition, or any sub- sequent breach of the same or any other term, covenant, or condition contained in this IGA. 5.8 Amendment This IGA. shall not be amended except by written instrument mutually agreed upon and executed by the Parties. 5.9 Entire IGA This IGA, its exhibits, and its recitals constitutes the entire agreement between the Parties regarding the subject matter of this IGA, and supersedes all prior oral and written agreements of the Parties regarding the subject matter of this IGA. All warranties and guar- antees and representations shall survive during the life of this IGA. (00000538.DOCX 15) _10- 101812014 9:27 AM 5. 10 ' Construction and Interpretation. All provisions of this IGA shall be construed to be consistent w ith the intention of the Parties expressed in the recitals of this IGA. 5.11 Term. The term of this IGA shall be 50 y ears from the Effective Date, and shall be automati- call renewed for successive I 0- periods unless a Part g ives the other Part notice of termination at least six months before the end of a respective term. 5.12 A uth o rity . Marana represents and warrants that it has le authorit and capacit to enter in- to this IGA upon the terms and conditions provided within this IGA, and has properl and le- g all y authorized and executed this IGA. Tucson represents and warrants that it has the le authorit and capacit to enter into this IGA upon the terms and conditions provided within this IGA, and has properl and le authorized and executed this IGA. 5.13 Legal Jurisdiction. Nothin in this IGA shall be considered as either limitin or extendin the le jurisdiction of either Marana. or Tucson. 5.14 Non-severa . If an provision of this IGA is held b a court of law to be in violation in whole or in part of an applicable local, state or federal ordinance, statute, law, administra- tive or judicial decision, or public polic and to be ille invalid or unenforceable as writ- ten, then the Parties shall make g ood faith efforts to modif the provision to the minimum ex- tent necessar to make it or its application valid and enforceable however, if the Parties are unable to a to modif the provision to the extent necessar to make it or its application valid and enforceable, this entire IGA shall be of no force and effect. 5.15 Effective Date. This IGA shall be effective upon filin of the ori executed IGA with the office of the Pima Count Recorder. IN WITNESS WHEREOF, each of the Parties has executed this IGA as of the si date below. CITY OF TUCSON Ma Jonathan Rothschild Date: ATTEST: Cit Clerk TOWN OF7M RAN Ma Ed onea Date: /,g / o�� ATTEST: ,J c-el C. nson, Town Clerk (00000538.DOCX / 5) - 11 - 10/812014 9:27 AM ATTORNEY CERTIFICATION The fore inter a between the Town of Marana and the Cit of Tuc- son, has been reviewed on the date set forth below pursuant to A.R.S. § 11 -952 b the under- si attorne each of whom has determined that it is in proper form and within the powers and authorit g ranted under the laws of the State of Arizona to the Part represented b the respective undersi attorne Mike Rankin, Cit Attorne Cit of Tucson Date: 1 ©[1000538. DOCX / 5) - 12 -, 10/8/2014 9:27 AM Date: �� , � O� o EXHIBIT 1 EFFLUENT ALLOCATION FORMULA T)Pfi n i #i nn "Q" is the sum of the following: The quantity of potable water, in acre -feet, delivered by Marana to its customers within the service area of Metropolitan Area WRFs during the previous calendar year, as deter- mined by billing records; excluding any potable water delivered by Marana for golf course irrigation, parrs irrigation, and other turf irrigation The quantity of potable water, in acre -feet, delivered by Tucson to its customers whose water deliveries Marana reimbursed with water credits pursuant to the Water Service IGA, as determined by billing records "F" is the agreed factor to be applied to Q to calculate the amount of wastewater delivered to Pima County from Waters of Marana; the agreed factor in this IGA is .62. Tucson and Marana intend "F" to reasonably approximate the amount of wastewater delivered to Metropolitan Area WRFs from Waters of Marana, and this factor may be altered at the request of either party if reliable data shows that it does not reasonably approximate these deliveries at the time of the request. "W" is the product of "Q" times "F ", equaling the amount of wastewater delivered to Pima County from Waters of Marana. "L" is the percentage of Effluent remaining after processing the wastewater at all of the Metro- politan Area WRFs during the previous calendar year. "I" is the quantity of wastewater inflow received at all of the Metropolitan Area WRFs during the preceding calendar year as reported in Pima County's Discharge Monitoring Reports for each WRF. "E" is the quantity of Effluent discharged from all of the Metropolitan Area WRFs during the preceding calendar year as reported in Pima County's Discharge Monitoring Reports for each WRF. "MUGAE" is the gross amount of Effluent derived from the Waters of Marana for the year in which the calculation is made. "S" is the SAWRSA Effluent. "MUS" is Marana's contribution to S for the year in which the calculation is made. "CEP" is the Conservation Effluent Pool for the previous calendar year. "MUCEP" is Marana's contribution to CEP for the year in which the calculation is made. "MUPE" is Marana's contribution to Pima County's share of the Effluent for the year in which the calculation is made. ( 0000053s.DoCx / s ) - - 13- 10/8/2014 9:27 AM "MUE" is the amount of Marana's Effluent for the calendar year in which the calculation is made. Step One —Calculation of the "L" loss factor. 46 E 9 ' 5 1 46 1" = "L" the loss factor. Step Two Calculation of the "MUGAE ". "Q" x "F" x "L" = "MUGAE" Marana's Gross Amount of Effluent Step Three --- Calculation of amounts of Effluent to be deducted, pursuant to subparagraph 4.2.2 of the IGA, from the "MUGAE ". SAWRSA Effluent ( "S "1 "E ") x "MUGAE" = 44 MUS" Marana's contribution to the SAWRSA Effluent. Conservation Effluent Pool 44CEP99/(66E99 — " S") x ( "MUGAE" — "MUS") = "MUCEP" Marana's contribution to the Conservation Effluent Pool. Pima County Effluent ( – "MUS" – "MUCEP ") x.1 = "MUPE" Marana's contribution the Pima County Effluent. Step Four Calculation of amount of ME for the year in which the calculation is made. "MUGA.E" – "MUS" – "MUCEP" – "MUPE" = "MUE" Marana's Effluent. Delivery Schedule Marana's daily entitlement of Effluent will be 1/365 of the "MUE ". The delivery schedule is subject to modification or adjustment by written Addendum between the Parties. . LA The following is an example, for illustrative purposes only, of the application of the above for- mula and delivery schedule assuming the following data: "Q" The quantity of potable water delivered by Marana to its customers within the area served by Metropolitan Area WRFs in the previous calendar year was 1,200 acre feet of which 200 acre feet was irrigation water. "F" The agreed factor is .62. "I" The wastewater inflow at all Metropolitan Area WRFs in the previous calendar year was 80,000 acre feet. "E" The Effluent discharged from the Metropolitan Area WRFs in the previous calendar year was 70,000 acre feet. "S" The SAWRSA Effluent is 30,000 acre feet. "CEP" The Conservation Effluent Pool was 5,000 acre feet in the previous calendar year ( 0000053 8. DQCX 15) 1 -14- 10/8/2014 9:27 AM Step_ One 70,000 divided by 80,000 equals .875 the "L" Step Two 1,000 times .62 equals 620 acre feet. 620 times .875 equals 542.5 acre feet the "MUGA.E " Step Three 30,000 divided by 70,000 equals .4286, .4286 times 542.5 equals 232.5155 acre feet the "MUS" 5,000 divided by 40,000 (70,000 minus 30,000) equals .125, .125 times 309.9845 (542.5 — 232.5155) equals 38.748 acre feet the "MUCEP" 542.5 minus 232.5155 minus 38.748 equals 271.23644, 271.23644 times 0.1 equals 27.12364 acre feet the "MUPE" Step Four 542.5 minus 232.5155 minus 38.748 minus 27.12364 equals 244.11286 acre feet the "MUE" Delivery Schedule Marana's total daily delivery entitlement is 244.11286 divided by 365 equals 0.6688 acre feet. Example Summa Under the factual assumptions stated in this example, Marana would be assigned 244.11286 acre feet of Tucson's Effluent. Marana's total daily Effluent entitlement would be 0.6688 acre feet. 100000538.DOC:X 15 ) - 15 - 10/8/2014 9 :27 AM