HomeMy WebLinkAboutResolution 2020-016 Approving the sale of the Falstaff Well and Water SystemMARANA RESOLUTION NO. 2020-016
RELATING TO UTILITIES; APPROVING AND AUTHORIZING THE MAYOR TO
SIGN A TRANSFER AGREEMENT, SELLING THE MARANA WATER
DEPARTMENT'S FALSTAFF WELL AND RELATED WATER SYSTEM AND ASSETS
TO THE DEANZA DOMESTIC WATER IMPROVEMENT DISTRICT
WHEREAS the Town of Marana's Falstaff Water Service Area (the "Falstaff
Area") consists of all properties historically served by the Town from the Falstaff Well,
located north of Avra Valley Road less than a quarter mile west of the Avra
Valley/ Interstate 10 traffic interchange; and
WHEREAS the Town currently provides water service to one customer in the
Falstaff Area; and
WHEREAS the Falstaff Area is not connected to any other part of the Town's
potable water utility; and
WHEREAS the Town's potable water mains closest to the Falstaff Area are about
6,000 feet southeast near the intersection of Casa Grande Highway and Tiffany Loop,
more than 4,000 feet south in Continental Ranch (across the Santa Cruz River), about
3,400 feet southwest in Silverbell Road (across the Santa Cruz and behind a rocky ridge
200 feet in elevation above Silverbell Road), and in Happy Acres (more than a mile
west, on the south side of Avra Valley Road across the Santa Cruz River); and
WHEREAS the Town's water quality testing in the Falstaff Area has detected
unregulated 1,4 -dioxane and perfluourinated compounds at levels higher than the
health advisories issued by the United States Environmental Protection Agency; and
WHEREAS providing water service in the Falstaff Area is costly and
burdensome to the Town; and
WHEREAS the District is in close proximity to the Falstaff Area and is willing to
assume the water service obligations within the Falstaff Area pursuant to the terms of a
Transfer Agreement negotiated by Town staff and District staff; and
WHEREAS the Town desires to sell, and the District desires to acquire, the
Town's water utility assets consisting of and associated with the Falstaff Area under the
terms set forth in the Transfer Agreement; and
WHEREAS the Mayor and Council find that entering into the Transfer
Agreement is in the best interest of the Town.
00067920.DOCX /2
Resolution No. 2020-016 - 1 - 3/4/202012:1.9 PM
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF
THE TOWN OF MARANA, ARIZONA, that the Transfer Agreement between the Town
of Marana and the DeAnza Domestic Water Improvement District in substantially the
form included with the agenda backup material accompanying this resolution is hereby
approved, the Mayor is hereby authorized and directed to sign it for and on behalf of
the Town of Marana, and the Town's Manager and staff are hereby directed and
authorized to undertake all other and further tasks required or beneficial to carry out its
terms, obligations, and objectives.
PASSED AND ADOPTED by the Mayor and Council of the Town of Marana,
Arizona, this 17th day of March, 2020.
Mayor Ed Honea
ATTEST:
4LO, 4-205-0
Cherry L. La on, Town Clerk
MARANA AZ
ESTABLISHED 1977
00067920.DOCX /2
Resolution No. 2020-016 -2- 3/4/202012:19 PM
TRANSFER AGREEMENT
This TRANSFER AGREEMENT (this "Agreement") is entered into by and between the
TOWN OF MARANA (the "Town"), an Arizona municipal corporation, and the DEANZA
DOMESTIC WATER IMPROVEMENT DISTRICT OF PIMA COUNTY, ARIZONA (the "District"), a
political subdivision of the State of Arizona. The Town and the District are each
sometimes individually referred to as a "Party" and collectively referred to as the
"Parties."
RECITALS
A. The Falstaff Water Service Area (the "Falstaff Area") consists of all properties
historically served by the Town from the Falstaff Well, located on the Falstaff Well Site,
the real property legally described in Exhibit B.
B. The Town currently provides water service to one customer in the Falstaff Area.
C. The Falstaff Area is not connected to any other part of the Town's potable water
utility.
D. The Towns potable water mains closest to the Falstaff Area are about 6,000 feet
southeast near the intersection of Casa Grande Highway and Tiffany Loop, more than
4,000 feet south in Continental Ranch (across the Santa Cruz River), about 3,400 feet
southwest in Silverbell Road (across the Santa Cruz and behind a rocky ridge 200 feet in
elevation above Silverbell Road), and in Happy Acres (more than a mile west, on the
south side of Avra Valley Road across the Santa Cruz River).
E. The Towns water quality testing in the Falstaff Area has detected unregulated
1,4 -dioxane and perfluourinated compounds at levels higher than the health advisories
issued by the United States Environmental Protection Agency.
F. Providing water service in the Falstaff Area is costly and burdensome to the Town.
G. The District is in close proximity to the Falstaff Area is willing to assume the water
service obligations within the Falstaff Area currently provided by the Town so long as
the Falstaff Well, storage and distribution system., service area rights related to the
system, and real property interests used to provide water in the Falstaff Area are
transferred to the District.
H. The Town desires to sell, and the District desires to acquire, the Towns water
utility assets consisting of and associated with the Falstaff Area under the terms set forth
in this Agreement.
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AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and the mutual promises
and agreements set forth in this Agreement, the Parties hereby agree as follows:
1. Transfer and Sale of Assets
1.1. Assets to be Acquired. The Town agrees to convey to the District, and the District
agrees to acquire from the Town, all of the Towns right, title and interest in and to all of
the assets owned or controlled by the Town used to provide potable water service in the
Falstaff Area ("Assets"), which are described in Exhibit A.
1.2. Excluded Assets. The Town shall not transfer the SCADA and telemetry panel
currently used for the Falstaff Area, and shall not transfer the Town's funds, accounts,
financial records, or other data not expressly set forth in this Agreement.
1..3. Assumed Liabilities. After Closing, the District shall assume, perform, and
discharge the Town's obligations regarding water service in the Falstaff Area.
1.4. Governmental Approvals; Conditions to Closing. The Town shall diligently
undertake any proceeding to relinquish its interests in the Falstaff Area as a water
provider, and the District shall reasonably cooperate with the Town in any such
proceeding. The Town shall cooperate with the District to obtain any necessary approvals
from any other governmental authority whose approval may be necessary to transfer the
Assets to the District.
2. Closing and Payment
2.1. Closing. The completion of the Town's transfer of the Assets to the District
("Closing") will take place no later than 90 days after this Agreement is signed by both
Parties.
2.2. Payment. The District will pay the Town $24,000, payable in cash or cash
equivalent, at Closing.
2.3. Transfer of Title. At Closing, title to, possession of, and risk of loss of all of the
Assets shall pass to the District. The Town has all risk of loss prior to Closing.
3. Representations and Warranties of the Town.
3.1. Town Authorization. The Town represents:
3.1.1. The Town has the authority to enter into and perform and consummate the
transactions contemplated by this Agreement;
3.1.2. The Town has properly authorized the execution and performance of this
Agreement;
3.1.3. This Agreement is a valid and binding obligation of the Town; and
3.1.4. Except as stated in this Agreement, no third party approval is necessary or
required to transfer the Assets to the District.
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3.1.5. The Town is not obligated to pay any fee to any broker or other intermediary
in connection with the transactions contemplated by this Agreement.
3.2. Title and Condition of Assets. At Closing, the Town will convey good and
marketable title to each of the Assets to the District.
3.3. Condition of Assets. The Assets are being transferred as is.
3.4. Litigation; Disputes. The Town is a co -plaintiff in City of Tucson and Town. of
Marana v. 3M Company et al., originally filed as Pima County Superior Court case number
C20185523 and now consolidated as part of In re: Aqueous Film -Forming Foanis Products
Liability Litigation, United States District Court for the District of South Carolina
Charleston Division, Multidistrict Litigation (MDL) No. 2873 (the "AFFF Litigation'),
which seeks compensation for the Town's current and anticipated costs to remediate
unregulated perfluorinated compounds in the Towns potable water. Except for the AFFF
Litigation, to the best of the Town's knowledge, there are no claims, disputes, actions,
suits, investigations or proceedings pending or threatened against or affecting the Town
or the Assets, and there is no basis for any such claim, dispute, action, suit, investigation,
or proceeding.
3.5. Compliance with Applicable Law. With respect to the Assets, to the best of the
Town's knowledge, the Town is in full compliance with applicable federal, state and local
laws (including common law), permits, judgments, orders, or decrees, including without
limitation any of the foregoing relating in any manner to safe drinking water, the
protection of human health or the environment, public health and safety, or employee
health and safety. Notwithstanding the foregoing, the Town's water quality testing in the
Falstaff Area has detected unregulated 1,4 -dioxane and perfluourinated compounds at
levels higher than the health advisories issued by the United States Environmental
Protection Agency.
4. Representations and Warranties of the District.
4.1.. District Authorization. The District represents:
4.1.1. The District has the authority to enter into and perform this Agreement and
to consummate the transactions contemplated by this Agreement;
4.1..2. The District has properly authorized the execution and performance of this
Agreement;
4.1.3. This Agreement is a valid and binding obligation of the District; and
4.1.4. The District is not obligated to pay any fee or commission to any broker or
other intermediary in connection with the transactions contemplated by this
Agreement.
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5. Covenants.
5.1. Administration of Receivables. The Parties agree that the Town shall receive and
be responsible for all income and expenses on or before Closing and the District shall
receive and be responsible for all income and expenses from and after Closing.
5.2. Tax and Other Matters. The Town shall pay all taxes and costs relating to the
Assets accruing on or before Closing and the District shall pay any applicable taxes and
costs relating to the Assets for the period after Closing.
5.3. Employees of the Town. The Town shall retain and perform any and all monetary
and other obligations to employees incurred prior to Closing.
5.4. Further Assurances. From time to time after Closing, the Town will, at its own
expense, execute and deliver such documents to the District as the District may
reasonably request, and the District will, at its own expense, execute and deliver such
documents to the Town as the 'Town may reasonably request, in order to more effectively
consummate the transactions contemplated by this Agreement.
6. Closing Costs, Buyer Investigation, and Closing Requirements
6.1. The District's Investigation Contingency. From the date this Agreement is signed
by both Parties to Closing, the District shall have the right to investigate and inspect the
Assets upon reasonable request to the Town and to cancel this Agreement without
penalty.
6.2. Closing Costs. All Closing costs, if any, will be paid by the District.
6.3. Town Deliverables. At Closing, the Town shall deliver to the District the Town's
fully executed:
6.3.1. Quit claim deed to the Falstaff Well Site;
6.3.2. Bill of sale with respect to the non -realty Assets in substantially the form
attached as Exhibit 3;
6.3.3. All other documents contemplated by this Agreement or required by law to
be executed and delivered by the Town;
6.3.4. Any and all meter advance credits for the Falstaff Area; and
6.3.5. All current and past customers' account information for the Falstaff Area.
7. Miscellaneous.
7.1.. Release and Waiver of Claims. The District waives and releases any claims it may
have against the Town now or in the future relating to the condition of the Assets,
including without limitation any claims pertaining to the quality of the water.
7.2. Assignment of Claims related to the Assets. The Town hereby assigns to the
District all claims that relate to the Assets that the Town has had or may have against any
third party including all claims which have been made or could be made in the case
captioned City of Tucson and Tov7n of Marana v. 3M et al, Case Number 4:18-cv-00612-RM,
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now consolidated as part of In re Aqueous Film -Forming Foams (AFFF) Products Liability
Litigation, MDL No. 2873.
7.3. Customer deposits. Upon Closing, and upon customer payment of the final billed
amount, the Town will refund customer deposits to the applicable customer.
7.4. Survival of Representations and Warranties, Covenants and Indemnities. All
representations and warranties contained in this Agreement shall survive Closing and
remain in full force and effect in accordance with the terms of this Agreement.
7.5. Expenses. Each Party shall pay its own costs and expenses relating to this
Agreement.
7.6. Amendment. This Agreement shall not be amended or modified except by a
writing duly executed by the Town and the District.
7.7. Entire Agreement. This Agreement contains all of the agreements of the Parties
with respect to the subject matter of this Agreement and supersedes all prior agreements
and negotiations.
7.8. Notices. All notices regarding this Agreement shall be in writing and shall be
given by either (a) personal delivery, (b) prepaid certified mail, or (c) email as set forth
below:
If to the District: DEANZA DOMESTIC WATER IMPROVEMENT DISTRICT OF PIMA
COUNTY, ARIZONA
c/o Jenifer L. Dorn, Administrative Manager
340 N. Main Ave.
Tucson, AZ 85701
Email: lenifer@StubbsSchubart.com
If to the Town: Jamsheed Mehta, Town Manager
TOWN OF MARANA
11555 W. Civic Center Dr.
Marana, AZ 85653
Email: jmehta@maranaaz.gov
With a copy to: Frank Cassidy, Town Attorney
TOWN OF MARANA
11555 W. Civic Center Dr.
Marana, AZ 85653
Email: fcassidy@maranaaz.gov
Such addresses may be changed, from time to time, by means of a notice given in the
manner provided in this paragraph 7.8.
7.9. Severability. A legally binding determination that any provision of this
Agreement is invalid or unenforceable shall not affect the remainder of this Agreement.
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Each provision of this Agreement shall be valid and enforceable to the fullest extent
permitted by law.
7.10. Waiver. A Party's waiver of any provision of this Agreement shall only be
effective if in writing and shall not be construed as a waiver of any other provision of this
Agreement.
7.11. Assignment. Neither Party may assign its rights or obligations under this
Agreement without the prior written consent of the other Party, which it may withhold
in its absolute discretion. Except as limited in the proceeding sentence, this Agreement
shall be binding upon and inure to the benefit of the Parties and their respective heirs,
personal representatives, successors and assigns.
7.12. Counterparts. This Agreement may be signed in any number of counterparts,
and all such counterparts together shall be deemed an original of this Agreement.
7.13. Jurisdiction. This Agreement shall be governed by and construed in accordance
with the laws of the State of Arizona.
7.14. Exhibits. Exhibits referred to in this Agreement are hereby incorporated into and
made part of this Agreement.
7.15. Interpretation. In interpreting any provision of this Agreement, no presumption
shall be drawn against the Party drafting the provision.
7.16. Attorneys' Fees. The prevailing Party in any action arising out of this Agreement
shall be entitled to recover its costs, expenses and reasonable attorneys' fees incurred in
connection with the dispute from the losing Party.
7.17. Cancellation. This Agreement is subject to cancellation by the Town or the
District pursuant to the provisions of A.R.S. § 38-511.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last Party's
signature date below.
TOWN OF MARANA
By:
Ed Honel, Mayo
Date: -,->A 5 ao
DEANZA DOMESTIC WATER
IMPROVEMENT DISTRICT OF PIMA
COUNTY, ARIZONA
By:
C � F -1 -
Its: (Ja�-I j (i1r1dn /Re-IiaC4.
Date: ' I I 1 1 ZCzo
ATTEST:
ATTRST:
Cherry L. L wson, Town Clerk J fer o , Administrative Manager
INTERGOVERNMENTAL AGREEMENT DETERMINATION
The foregoing Agreement between the TOWN OF MARANA and the DEANZA DOMESTIC
WATER IMPROVEMENT DISTRICT OF PIMA COUNTY, ARIZONA has been reviewed pursuant to
A.R.S. § 11-952 by the undersigned, who have determined that it is in proper form and is
within the powers and authority granted under the laws of the State of Arizona to the
Party to this Agreement represented by the undersigned.
TOWN OF MARANA:
r w, yf C
F� Cassidy, Town Att ney
Date:
DEANZA DOMESTIC WATER
IMPROVEMENT DISTRICT OF PIMA
COUNTY, ARIZONA:
Steve Wene, Attorney for the District
Date: =z O
LIST OF EXHIBITS
Exhibit A Description of the "Assets"
Exhibit B Legal description of the site containing the Falstaff Well (the real
property included in the Assets)
Exhibit C Form of Bill of Sale
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EXHIBIT A: TOWN "ASSETS" BEING CONVEYED TO THE DISTRICT
1.. All Town water system infrastructure in the Falstaff Area including those listed in
the table below.
2. All Town operational, maintenance, and technical data and information for Town
water system infrastructure in the Falstaff Area.
3. Intangible assets related to potable water delivery in the Falstaff Area.
4. All specifications, plans, and drawings for Town water system infrastructure in the
Falstaff Area.
5. Water service data for the Falstaff Area.
6. All Town customer lists, financial, and other books and records for the Falstaff
Area.
7. All rights, permits, warranties, representations, guarantees, and service contacts
made by suppliers, manufacturers and contractors for Town water system
infrastructure in the Falstaff Area.
8. The Town real property described in Exhibit B
9. Copies of Falstaff Area customer account records
10. Copies of all regulatory records regarding the Falstaff Area.
Asset Area
Asset Name
Description
Number
Comment
Site
Land
60'X70'
4200ft'
Pima County Parcel 226-01-0300
Fencing
Feetoffencing
260 ft
Chain Link
Gates
Vehicle Gate
1
Man Gate
1
Awnings
Chlorinator shade
1
Power
Electical Panel/well/booster panel
control panels
1
1
Reservoir
10,000 Gallon
1
Not in use, requires repair
Disinfection
Chemical Dosing pump and tubing
Liquid Chlorine pump
1
In Rack
Chlorine Reservoir
5gallon
1
ChlorinatorforHTH
1Sleeve
1
Not in use
Hydrotank
Hydrotank
1500 Gallon
2
Old Hydrotank
1000Gallon
2
Not in use, requires repair
Pressure indicator
1
Level Indicator
1
Well
Pump
Grundfoss 40550-15
1
15 stage bowl assembly
Pump Motor
Grundfoss MS4000
1
5 hp, 240 volt, 3 phase
Casing
288 ft
Discharge Meter
2"
1
Vent Tube
1" Vent tube
1
Check valve
2 " Check Valve
1
Boosters
Boosterstation
motors with pumps
2
Berkely pumps, 3hp?
1
F.01
EXHIBIT B: LEGAL DESCRIPTION OF FALSTAFF WELL SITE
PARCELI:
(Well No. 8.1, ADWR No. 55-604845)
That portion of the Southwest quarter of the Northeast quarter of the Southeast quarter of
Section 8, Township 12 South, Range 12 East, Gila and Salt River Base and Meridian, Pima
County, Arizona, more particularly described as follows:
COMMENCING at a point on the North right-of-way line of Avra Valley Road (as established by
Proceedings No. 760-A of the Board of Supervisors of Pima County, State of Arizona) the map
of which is filed in the Office of the County Recorder of Pima County, State of Arizona in Book
6 of Roads at Page 43 thereof, which point is 383.5 feet Westerly (South 89 degrees 48
minutes 14 seconds West) from the intersection of said North right-of-way line of Avra Valley
Road with the East line of said Section 8 and which point in the most Easterly corner of that
property described in Docket Book 1799 at Page 227 thereof.
THENCE North 39 degrees 11 minutes 15 seconds West along the Northeasterly line of said
property described in Book 1799 at Page 227, a distance of 56.3 feet t a point;
THENCE North 54 degrees 02 minutes 30 seconds West along the Northeasterly line of the
property described in Book 1799 at Page 227, a distance of 450.00 feet to the TRUE POINT OF
BEGINNING;
THENCE South 35 degrees 57 minutes 30 seconds West, a distance of 70.00 feet to a point;
THENCE North 64 degrees 02 minutes 30 seconds West, a distance of 60.00 feet to a point;
THENCE North 35 degrees 57 minutes 30 seconds East, a distance of 70.00 feet to a point on
the Northeasterly property line of said property described in Book 1799 at Page 227;
THENCE South 54 degrees 02 minutes 30 seconds East, along said Northeasterly property
line, a distance of 60.00 feet to the TRUE POINT OF BEGINNING.
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TOGETHER WITH an easement for water line and access over a strip of land 15 feet in width
the North line of which is described as follows:
0
BEGINNING at the Northeast corner of that piece of property recorded in Docket 4342 at Page
691 of the Official Records of Pima County, Arizona;
THENCE South 81 degrees 07 minutes East, a distance of 605.91 feet to a point on the West
line of Welisite No. 8-J;
I
THENCE South 00 degrees 08 minutes 45 seconds East along the West line of said wellsite, a
distance of 49.5 feet to the Southwest corner thereof;
THENCE North 89 degrees 39 minutes East, a distance of 100 feet of the Southeast corner of
said weilsite;
THENCE North 00 degrees 08 minutes 45 seconds West along the Easterly line of said
welisite, a distance of 33.6 feet;
THENCE South 81 degrees 07 minutes East, a distance of 132 feet;
THENCE South 64 degrees 02 minutes 30 seconds East, a distance of 446.60 feet to a point.
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EXHIBIT C: FORM OF BILL OF SALE
BILL OF SALE
THIS BILL OF SALE is made by the TOWN OF MARANA (the "Town"), in favor of the
DEANZA DOMESTIC WATER IMPROVEMENT DISTRICT OF PIMA COUNTY, ARIZONA (the
"District")
RECITALS
A. Pursuant to a Transfer Agreement ("Agreement") by and between the Town and
the District, the Town has agreed to sell and assign to the District certain Assets (as that
capitalized term is defined in the Agreement) of the Town and the District has agreed to
accept such Assets from the Town and to assume certain utility obligations of the Town
related thereto.
B. All capitalized terms used but not otherwise defined in this Bill of Sale shall have
the respective meanings ascribed thereto in the Agreement.
Now, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Town does hereby sell, convey, assign, transfer and
deliver unto the District, its successors and assigns, all of the Town's right, title and
interest in and to all of the Assets set forth in Attachment 1.
TO HAVE AND TO HOLD unto the District, its successors and assigns, for its use and
benefit forever.
This Bill of Sale is subject to the terms and conditions (including the representations
and warranties) contained in the Agreement, and shall be governed by, and construed
and enforced in accordance with the laws of the State of Arizona, without regard to its
conflicts of laws principles.
IN WITNESS WHEREOF, the Town has executed and delivered this Bill of Sale on the date
set forth below.
TOWN OF MARANA
Town Manager/ Mayor
Date
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