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HomeMy WebLinkAboutResolution 2024-019 Approving and Authorizing the Mayor to sign a Purchase and Sale Agreement for Long Term Storage Credits with the Tohono O'Odham Nation MARANA RESOLUTION NO. 2024-019 RELATING TO WATER; APPROVING AND AUTHORIZING THE MAYOR TO SIGN A PURCHASE AND SALE AGREEMENT FOR LONG TERM STORAGE CREDITS WITH THE TOHONO O'ODHAM NATION WHEREAS the Tohono O'ohdam Nation,a federally recognized Indian Tribe,and the Town of Marana, an Arizona municipal corporation, have negotiated and desire to enter into a Purchase and Sale Agreement for Long Term Storage Credits, pursuant to which the Town will purchase 12,000 acre-feet of long-term storage credits from the Nation for a purchase price of S4,800,000.00; and WHEREAS the Mayor and Council find that the terms and conditions of the agreement are in the best interests of the Town. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, that the Purchase and Sale Agreement for Long Term Storage Credits between the Tohono O'ohdam Nation and the Town of Marana, substantially in the same form attached to and incorporated by this reference in this resolution as Exhibit A,is hereby approved,the Mayor is hereby authorized and directed to sign it for and on behalf of the Town of Marana,and the Towri 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 agreement. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 20th day of February, 2024. Mayor Ed Honea ATTEST: APPR D AS TO FORM: David L. Udall, Town Clerk J Fairall, Town Attorney .4066- EE STA ANA AZ - 1 - Resolution No.2024-019 PURCHASE AND SALE AGREEMENT FOR LONG TERM STORAGE CREDITS This Purchase and Sale Agreement is made this . day of �� , 2024, (the "Effective Date"), between and among the Town of Marana, Arizona ("Marana"), an Arizona municipal corporation, and the Tohono O'odham Nation ("Nation"), a federally recognized Indian Tribe. RECITALS A. Marana desires to purchase Long-Term Storage Credits developed by the Nation pursuant to Arizona Revised Statutes Title 45, Chapter 3.1, for the benefit of Marana's designated water service area. B. The Nation is willing to sell and transfer certain Long-Term Storage Credits to Marana under the price, terms and conditions set forth herein. NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged, and intending to be legally bound, the parties hereby agree as follows: ARTICLE 1 DEFINITIONS As used in this Agreement, the following terms,when capitalized, shall mean: 1. "ADWR" means the Arizona Department of Water Resources. 2. "Agreement" means this Purchase and Sale Agreement for Long-Term Storage Credits. 3. "Long-Term Storage Credit" is as defined in Arizona Revised Statutes § 45-802.01(12). 4. "Long-Term Storage Credit Transfer Form" is a form, approved by ADWR, to effectuate the assignment of Long-Term Storage Credits, as defined in Arizona Revised Statutes § 45-854.01(B), and more specifically described in Article 3 below. 5. "Marana"means the Town of Marana,Arizona. 6. "Marana's Account" means (i) the long-term storage account established pursuant to Arizona Revised Statutes § 45-859.01 for the Tucson Active Management Area (Account No. 70- 411220.0000). 1 7. "Nation" means the Tohono O'odham Nation. 8. "Nation's Long-Term Storage Account(s)" means the Long-Term Storage account established pursuant to Arizona Revised Statutes § 45-852.01 in Nation's name in the Tucson AMA(Account No. 70-084101.0000). ARTICLE 2 PURCHASE OF LONG-TERM STORAGE CREDITS 2.1 Sale and Purchase. Subject to the terms and conditions of this Agreement, the Nation agrees to sell, transfer and assign and Marana agrees to purchase, accept and pay for 12,000 acre-feet of Long-Term Storage Credits as set forth in Exhibit A. 2.2 Type of Water. It is the intent of the parties that all Long-Term Storage Credits purchased and sold under this Agreement shall retain the identity of the source of water used to generate such Long-Term Storage Credits. 2.3 Long-Term Storage Credits. The Long-Term Storage Credits to be sold by the Nation were stored at the underground storage facility(s), under the ADWR Facility Permit and ADWR Water Storage Permit set forth in Exhibit A hereto. 2.4 Purchase Price. The Purchase Price for the Long-Term Storage Credits to be transferred pursuant to this Agreement is $4,800,000. The per-credit price for Long-Term Storage Credits to be transferred pursuant to this Agreement is $400. ARTICLE 3 TIME AND MANNER OF TRANSFER 3.1 Long-Term Storage Credit Transfer Form. To evidence the transfer of Long-Term Storage Credits, the Nation shall complete, sign and deliver the Long-Term Storage Credit Transfer Form to Marana within 20 business days of full execution of this Agreement. A copy of the Long-Term Storage Credit Transfer Form is attached as Exhibit B to this Agreement. After the Nation has executed and delivered the Long-Term Storage Credit Transfer Form to Marana, Marana shall sign and deliver the fully executed Long-Term Storage Credit Transfer Form to ADWR within 20 business days. 3.2 Additional Actions and Documentation. Marana shall pay any administrative fees established by ADWR to effectuate the transfer of the Nation's Long-Term Storage Credits into Marana's Account. The parties shall cooperate to take such further actions and execute such further documents as may be determined by either party to be necessary or advisable in order to complete the transfer of the Long-Term Storage Credits contemplated by this Agreement. 2 ARTICLE 4 COMPLETION OF DELIVERY AND PAYMENT 4.1 Completion of Delivery. Delivery of the Long-Term Storage Credits to be transferred pursuant to this Agreement shall be deemed complete when ADWR notifies Marana in writing that ADWR has received and accepted the Long-Term Storage Credit Transfer Form and intends to transfer the Long-Term Storage Credits from the Nation's Long-Term Storage Account to Marana's Account ("ADWR Acceptance"). Marana and the Nation shall cooperate with ADWR to facilitate completion of such transfer by ADWR. 4.2 Payment. Marana shall pay the Nation the full purchase price amount pursuant to Article 2.4 above,no later than 20 business days after ADWR Acceptance. ARTICLE 5 REJECTION OR INVALIDATION OF TRANSFER 5.1 Rejection or Invalidation of Transfer. If ADWR, pursuant to Arizona Revised Statutes § 45-854.01(C), rejects or invalidates any transfer or assignment of Long-Term Storage Credits made hereunder before Marana has paid for such Long-Term Storage Credits, Marana shall not be obligated to pay for the number of Long-Term Storage Credits affected by such rejection or invalidation. If such rejection or invalidation occurs after payment has been made by Marana, the Nation shall refund an amount equal to the number of Long-Term Storage Credits affected by such rejection or invalidation times the price per acre-foot for the affected Long-Term Storage Credits, as such price is established in Article 2.4 above. The Nation shall refund such amount within 30 business days after either Marana or the Nation receives any notice of rejection or invalidation from ADWR. Marana shall transfer and assign back to the Nation the number of credits affected by any such rejection or invalidation. The Nation's obligation to refund any payments under this Article 5 shall expire 30 calendar days after ADWR has issued a non-appealable final agency decision approving the transfer and assignment of the Long-Term Storage Credits into Marana's Account. The Parties' rights and obligations under this Article 5 shall remain in full force and effect, and shall survive termination of this Agreement for purposes of addressing a circumstance where ADWR rejects or invalidates any transfer of Long-Term Storage Credits made hereunder. ARTICLE 6 EFFECTIVE DATE AND TERM 6.1 Effective Date and Term. This Agreement shall be effective as of the date it has been executed by both parties hereto, which date is set forth in the introductory paragraph of this Agreement (the "Effective Date"). This Agreement shall stay in effect until all provisions under the Agreement have been met unless terminated earlier in accordance with Article 7. 3 ARTICLE 7 REPRESENTATIONS, DEFAULT AND REMEDIES 7.1 Representations and Warranties. The parties hereby represent and warrant as follows: 7.1.1 The persons signing on behalf of their respective parties below have the authority to enter into this Agreement and bind their respective party to its terms. 7.1.2 The Nation 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 Long-Term Storage Credits, and Marana shall have free and unrestricted use of the same in accordance with applicable law. 7.1.3 The Nation shall take no action to sell, convey, transfer or assign any long-term storage credits to any other party that would diminish the long-term storage credits in the Nation's Long-Term Storage Account(s) below 12,000 acre-feet at any time during the calendar years 2023 and 2024 until the transaction contemplated under this Agreement is finalized or this Agreement otherwise terminates by its own terms. 7.2 Default. The occurrence of any of the following events constitutes an event of default by a party to this Agreement: 7.2.1 The failure of either party to perform any term, covenant, or condition of this Agreement, if that failure continues for 30 days following the receipt of written notice from the other party. 7.2.2 (i) The filing by or against either party of a petition to have the party adjudged as bankrupt or a petition for reorganization or arrangement under any law relating to bankruptcy (unless, in the case of a petition filed against a party, the same is dismissed within 60 days); (ii) the making by a party of any general assignment for the benefit of creditors; (iii) the appointment of a trustee or receiver to take possession of substantially all of the party's assets, when possession is not restored to the party within 60 days; or (iv) the attachment, execution, or other judicial seizure of substantially all of a party's assets, where such seizure is not discharged within 60 days. 7.3 Remedies. If an event of default occurs, the non-defaulting party may immediately terminate this Agreement by written notice to the defaulting party and/or may pursue any other rights available to it in law or equity consistent with the limitations included in paragraph 8.2, infra. The obligation of the defaulting party to pay any amounts due but unpaid as of the date of termination under this provision shall survive such termination. ARTICLE 8 MISCELLANEOUS PROVISIONS 4 8.1 Interpretation. This Agreement is governed by and must be construed and interpreted in accordance with and in reference to the laws of the State of Arizona, without regard to its conflicts of laws provisions. Any action to resolve any dispute regarding this Agreement shall be taken in a state court of competent jurisdiction located in Pima County,Arizona. 8.2 Sovereign Immunity. The Nation hereby provides a limited waiver of sovereign immunity for the purpose of resolving any dispute that arises out of this Agreement. Nothing in this limited waiver shall be deemed to waive the Nation's immunity from suit except as to a case/claim brought by Marana sounding in contract alleging a breach of this Agreement. Damages as to the Nation are limited to direct contractual damages and shall not include speculative, consequential or punitive damages. The Nation's Attorney General is authorized to accept service on behalf of the Nation. 8.3 No Third-Party Beneficiaries. This Agreement is solely for the benefit of the parties and does not create, nor shall it be construed to create, rights in any third party unless expressly provided herein. No third party may enforce the terms and conditions of this Agreement. 8.4 Amendments. This Agreement may be modified, amended or revoked only by the express written agreement of the parties hereto. 8.5 Entire Agreement. This Agreement constitutes the entire agreement between the parties and no understandings or obligations not expressly set forth in this Agreement are binding upon the parties. 8.6 Waiver. No delay in exercising any right or remedy shall constitute a waiver unless such right or remedy is waived in writing signed by the waiving party. A waiver by any party of any right or remedy hereunder shall not be construed as a waiver of any other right or remedy, whether pursuant to the same or a different term, condition or covenant. 8.7 Captions. All captions, titles, or headings in this Agreement are used for the purpose of reference and convenience only and do not limit, modify, or otherwise affect any of the provisions of this Agreement. 8.8 Rules, Regulations and Amendment or Successor Statutes. All references in this Agreement to the Arizona Revised Statutes include all rules and regulations promulgated by ADWR under such statutes and all amendment statutes and successor statutes, rules, and regulations to such statutes, rules, and regulations. 8.9 Conflicts of Interest. The parties to this Agreement are hereby notified of A.R.S. § 38-511. 8.10 Severability. The provisions of this Agreement are severable to the extent that if any provision is held unenforceable under applicable law, the remaining provisions of the Agreement shall remain in effect, if the intent of the Agreement can be accomplished. 5 8.11 Indemnification. Each party to this Agreement is independently responsible in the event of its own negligence. Neither party agrees to indemnify the other party. 8.12 Notices. Except as otherwise required by law, any notice given in connection with this Agreement must be in writing and must be given by personal delivery, overnight delivery, or United States certified or registered mail. Any such notice must be addressed to the appropriate party at the following address (or at any other address as a party may hereafter designate by written notice given as required by this paragraph): TOWN OF MARANA: For U.S. Mail use: Town of Marana 11555 West Civic Center Drive Marana,AZ 85653 Attn: Town Manager TOHONO O'ODHAM NATION: For U.S Mail use: Tohono O'odham Nation P.O Box 837 Sells,Arizona 85634 Attn:Attorney General Notice is deemed to have been given on the date on which notice is personally delivered, delivered to an overnight delivery service, or mailed. Notice is deemed to have been received on the date on which the notice is actually received or delivery is refused. IN WITNESS WHEREOF, the parties to this Agreement have executed this Agreement as of the date first set forth above. TOWN OF MA A, an Arizona municipal corporation. By: Ed Honea, Mayor ATTEST: David L. Udall, Marana Town Clerk TOHONO O'ODHAM NATION, a federally recognized Indian tribe. 6 By: fr.,14441?-- Verlon M. Jose Its: Chairman APPROVED AS TO FORM I `' rf.. Howard M. Shanker, Attorney General 7 EXHIBIT A to Purchase and Sale Agreement for Long Term Storage Credits LONG-TERM STORAGE CREDITS ADWR Water ADWR Long-Term Credits e ;, Storage Permit Na Star age Aec unt i o (A } e F sr Lower Santa 71-561366.0006 73-561366.1300 70-084101.0000 12,000 CAP Cruz USF 8 EXHIBIT B to Purchase and Sale Agreement for Long Term Storage Credits ADWR LONG-TERM STORAGE CREDIT TRANSFER FORM A.R.S. §45-854.01 ARIZONA DEPARTMENT OF WATER RESOURCES Water Planning&Permitting Division 1110 West Washington St.,Suite 310 Phoenix,Arizona 85007 Telephone(602)771-8599 Fax(602)771-8689 LONG-TERM STORAGE CREDIT TRANSFER FORM For Official Use Only A.R.S.§45-854.01 DATE RECEIVED: The fee for a Long-Term Storage Credit Transfer is $250.00 per water storage transfer. Only one transaction may be requested per form. Payment may be made by cash,check,or credit card.. 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.R12-15-104. [FOR ASSIGNOR] Name of Assignor Long-Term Storage Account No. Contact Person/Telephone Number Facility Permit Number(where source water was stored) Mailing Address Water Storage Permit Number(authority to store source water) City/State/Zip Email Number of long-term storage credits(in acre-feet)transferred by type(s)of water and year credits were earned. Type: acre-feet year earned Type: acre-feet year earned [FOR ASSIGNEE] If the transfer includes long-term storage credits earned from the storage of Central Arizona Project(CAP) water in an Active Management Area(AMA),please state: Name of Assignee 1. The date of Assignee's formation(if Assignee is a legal entity): Contact Person/Telephone Number 2. The amount of groundwater withdrawn by Mailing Address Assignee in the AMA during the calendar year that the credits were earned: City/State/Zip a. The groundwater right number(s)the Assignee withdrew the groundwater Email pursuant to: Long-Term Storage Account No.(if any) Required Signature Block is on Page 2 Page 1 of 2 Revised 1/2020 9 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 knowledge and belief, correct and complete and that they are authorized to sign on behalf of the party for whom their signature appears. Authorized Signature for Assignor DATE Authorized Signature for Assignee DATE Title Title NOTICE AILS.§41-1030(B),(D),(E)and(F)provide as follows: B. An agency shall not base a licensing decision in whole or in part on a licensing requirement or condition that is not specifically authorized by statute,rule or state tribal gaming compact.A general grant of authority in statute does not constitute a basis for imposing a licensing requirement or condition unless a rule is made pursuant to that general grant of authority that specifically authorizes the requirement or condition. D. This section may be enforced in a private civil action and relief may be awarded against the state. The court may award reasonable attorney fees,damages and all fees associated with the license application to a party that prevails in an action against the state for a violation of this section. E. A state employee may not intentionally or knowingly violate this section. A violation of this section is cause for dieriplinary action or dismissal pursuant to the agency's adopted personnel policy. F. This section does not abrogate the immunity provided by section 12-820.01 or 12-820.02. Page 2 of 2 Revised 1/2020 10 11 Exhibit A to Marana Resolution No. 2024-019 PURCHASE AND SALE AGREEMENT FOR LONG TERM STORAGE CREDITS This Purchase and Sale Agreement is made this day of , 2024, (the "Effective Date"), between and among the Town of Marana, Arizona ("Marana"), an Arizona municipal corporation, and the Tohono O'odham Nation ("Nation"), a federally recognized Indian Tribe. RECITALS A. Marana desires to purchase Long-Term Storage Credits developed by the Nation pursuant to Arizona Revised Statutes Title 45, Chapter 3.1, for the benefit of Marana's designated water service area. B. The Nation is willing to sell and transfer certain Long-Term Storage Credits to Marana under the price,terms and conditions set forth herein. NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged, and intending to be legally bound, the parties hereby agree as follows: ARTICLE 1 DEFINITIONS As used in this Agreement, the following terms, when capitalized, shall mean: 1. "ADWR" means the Arizona Department of Water Resources. 2. "Agreement" means this Purchase and Sale Agreement for Long-Term Storage Credits. 3. "Long-Term Storage Credit" is as defined in Arizona Revised Statutes § 45-802.01(12). 4. "Long-Term Storage Credit Transfer Form" is a form, approved by ADWR, to effectuate the assignment of Long-Term Storage Credits, as defined in Arizona Revised Statutes § 45-854.01(B), and more specifically described in Article 3 below. 5. "Marana" means the Town of Marana,Arizona. 6. "Marana's Account" means (i) the long-term storage account established pursuant to Arizona Revised Statutes § 45-859.01 for the Tucson Active Management Area (Account No. 70- 411220.0000). 1 Exhibit A to Marana Resolution No. 2024-019 7. "Nation" means the Tohono O'odham Nation. 8. `Nation's Long-Term Storage Account(s)" means the Long-Term Storage account established pursuant to Arizona Revised Statutes § 45-852.01 in Nation's name in the Tucson AMA(Account No. 70-084101.0000). ARTICLE 2 PURCHASE OF LONG-TERM STORAGE CREDITS 2.1 Sale and Purchase. Subject to the terms and conditions of this Agreement, the Nation agrees to sell, transfer and assign and Marana agrees to purchase, accept and pay for 12,000 acre-feet of Long-Term Storage Credits as set forth in Exhibit A. 2.2 Type of Water. It is the intent of the parties that all Long-Term Storage Credits purchased and sold under this Agreement shall retain the identity of the source of water used to generate such Long-Term Storage Credits. 2.3 Long-Term Storage Credits. The Long-Term Storage Credits to be sold by the Nation were stored at the underground storage facility(s), under the ADWR Facility Permit and ADWR Water Storage Permit set forth in Exhibit A hereto. 2.4 Purchase Price. The Purchase Price for the Long-Term Storage Credits to be transferred pursuant to this Agreement is $4,800,000. The per-credit price for Long-Term Storage Credits to be transferred pursuant to this Agreement is $400. ARTICLE 3 TIME AND MANNER OF TRANSFER 3.1 Long-Term Storage Credit Transfer Form. To evidence the transfer of Long-Term Storage Credits, the Nation shall complete, sign and deliver the Long-Term Storage Credit Transfer Form to Marana within 20 business days of full execution of this Agreement. A copy of the Long-Term Storage Credit Transfer Form is attached as Exhibit B to this Agreement. After the Nation has executed and delivered the Long-Term Storage Credit Transfer Form to Marana, Marana shall sign and deliver the fully executed Long-Term Storage Credit Transfer Form to ADWR within 20 business days. 3.2 Additional Actions and Documentation. Marana shall pay any administrative fees established by ADWR to effectuate the transfer of the Nation's Long-Term Storage Credits into Marana's Account. The parties shall cooperate to take such further actions and execute such further documents as may be determined by either party to be necessary or advisable in order to complete the transfer of the Long-Term Storage Credits contemplated by this Agreement. 2 Exhibit A to Marana Resolution No. 2024-019 ARTICLE 4 COMPLETION OF DELIVERY AND PAYMENT 4.1 Completion of Delivery. Delivery of the Long-Term Storage Credits to be transferred pursuant to this Agreement shall be deemed complete when ADWR notifies Marana in writing that ADWR has received and accepted the Long-Term Storage Credit Transfer Form and intends to transfer the Long-Term Storage Credits from the Nation's Long-Term Storage Account to Marana's Account ("ADWR Acceptance"). Marana and the Nation shall cooperate with ADWR to facilitate completion of such transfer by ADWR. 4.2 Payment. Marana shall pay the Nation the full purchase price amount pursuant to Article 2.4 above,no later than 20 business days after ADWR Acceptance. ARTICLE 5 REJECTION OR INVALIDATION OF TRANSFER 5.1 Rejection or Invalidation of Transfer. If ADWR, pursuant to Arizona Revised Statutes § 45-854.01(C), rejects or invalidates any transfer or assignment of Long-Term Storage Credits made hereunder before Marana has paid for such Long-Term Storage Credits, Marana shall not be obligated to pay for the number of Long-Term Storage Credits affected by such rejection or invalidation. If such rejection or invalidation occurs after payment has been made by Marana, the Nation shall refund an amount equal to the number of Long-Term Storage Credits affected by such rejection or invalidation times the price per acre-foot for the affected Long-Term Storage Credits, as such price is established in Article 2.4 above. The Nation shall refund such amount within 30 business days after either Marana or the Nation receives any notice of rejection or invalidation from ADWR. Marana shall transfer and assign back to the Nation the number of credits affected by any such rejection or invalidation. The Nation's obligation to refund any payments under this Article 5 shall expire 30 calendar days after ADWR has issued a non-appealable final agency decision approving the transfer and assignment of the Long-Term Storage Credits into Marana's Account. The Parties' rights and obligations under this Article 5 shall remain in full force and effect, and shall survive termination of this Agreement for purposes of addressing a circumstance where ADWR rejects or invalidates any transfer of Long-Term Storage Credits made hereunder. ARTICLE 6 EFFECTIVE DATE AND TERM 6.1 Effective Date and Term. This Agreement shall be effective as of the date it has been executed by both parties hereto, which date is set forth in the introductory paragraph of this Agreement (the "Effective Date"). This Agreement shall stay in effect until all provisions under the Agreement have been met unless terminated earlier in accordance with Article 7. 3 Exhibit A to Marana Resolution No. 2024-019 ARTICLE 7 REPRESENTATIONS, DEFAULT AND REMEDIES 7.1 Representations and Warranties. The parties hereby represent and warrant as follows: 7.1.1 The persons signing on behalf of their respective parties below have the authority to enter into this Agreement and bind their respective party to its terms. 7.1.2 The Nation 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 Long-Term Storage Credits, and Marana shall have free and unrestricted use of the same in accordance with applicable law. 7.1.3 The Nation shall take no action to sell, convey, transfer or assign any long-term storage credits to any other party that would diminish the long-term storage credits in the Nation's Long-Term Storage Account(s) below 12,000 acre-feet at any time during the calendar years 2023 and 2024 until the transaction contemplated under this Agreement is finalized or this Agreement otherwise terminates by its own terms. 7.2 Default. The occurrence of any of the following events constitutes an event of default by a party to this Agreement: 7.2.1 The failure of either party to perform any term, covenant, or condition of this Agreement, if that failure continues for 30 days following the receipt of written notice from the other party. 7.2.2 (i) The filing by or against either party of a petition to have the party adjudged as bankrupt or a petition for reorganization or arrangement under any law relating to bankruptcy (unless, in the case of a petition filed against a party, the same is dismissed within 60 days); (ii) the making by a party of any general assignment for the benefit of creditors; (iii) the appointment of a trustee or receiver to take possession of substantially all of the party's assets, when possession is not restored to the party within 60 days; or (iv) the attachment, execution, or other judicial seizure of substantially all of a party's assets,where such seizure is not discharged within 60 days. 7.3 Remedies. If an event of default occurs, the non-defaulting party may immediately terminate this Agreement by written notice to the defaulting party and/or may pursue any other rights available to it in law or equity consistent with the limitations included in paragraph 8.2, infra. The obligation of the defaulting party to pay any amounts due but unpaid as of the date of termination under this provision shall survive such termination. ARTICLE 8 MISCELLANEOUS PROVISIONS 4 Exhibit A to Marana Resolution No. 2024-019 8.1 Interpretation. This Agreement is governed by and must be construed and interpreted in accordance with and in reference to the laws of the State of Arizona, without regard to its conflicts of laws provisions. Any action to resolve any dispute regarding this Agreement shall be taken in a state court of competent jurisdiction located in Pima County,Arizona. 8.2 Sovereign Immunity. The Nation hereby provides a limited waiver of sovereign immunity for the purpose of resolving any dispute that arises out of this Agreement. Nothing in this limited waiver shall be deemed to waive the Nation's immunity from suit except as to a case/claim brought by Marana sounding in contract alleging a breach of this Agreement. Damages as to the Nation are limited to direct contractual damages and shall not include speculative, consequential or punitive damages. The Nation's Attorney General is authorized to accept service on behalf of the Nation. 8.3 No Third-Party Beneficiaries. This Agreement is solely for the benefit of the parties and does not create, nor shall it be construed to create, rights in any third party unless expressly provided herein. No third party may enforce the terms and conditions of this Agreement. 8.4 Amendments. This Agreement may be modified, amended or revoked only by the express written agreement of the parties hereto. 8.5 Entire Agreement. This Agreement constitutes the entire agreement between the parties and no understandings or obligations not expressly set forth in this Agreement are binding upon the parties. 8.6 Waiver. No delay in exercising any right or remedy shall constitute a waiver unless such right or remedy is waived in writing signed by the waiving party. A waiver by any party of any right or remedy hereunder shall not be construed as a waiver of any other right or remedy, whether pursuant to the same or a different term, condition or covenant. 8.7 Captions. All captions, titles, or headings in this Agreement are used for the purpose of reference and convenience only and do not limit, modify, or otherwise affect any of the provisions of this Agreement. 8.8 Rules, Regulations and Amendment or Successor Statutes. All references in this Agreement to the Arizona Revised Statutes include all rules and regulations promulgated by ADWR under such statutes and all amendment statutes and successor statutes, rules, and regulations to such statutes, rules, and regulations. 8.9 Conflicts of Interest. The parties to this Agreement are hereby notified of A.R.S. § 38-511. 8.10 Severability. The provisions of this Agreement are severable to the extent that if any provision is held unenforceable under applicable law, the remaining provisions of the Agreement shall remain in effect, if the intent of the Agreement can be accomplished. 5 Exhibit A to Marana Resolution No. 2024-019 8.11 Indemnification. Each party to this Agreement is independently responsible in the event of its own negligence. Neither party agrees to indemnify the other party. 8.12 Notices. Except as otherwise required by law, any notice given in connection with this Agreement must be in writing and must be given by personal delivery, overnight delivery, or United States certified or registered mail. Any such notice must be addressed to the appropriate party at the following address (or at any other address as a party may hereafter designate by written notice given as required by this paragraph): TOWN OF MARANA: For U.S. Mail use: Town of Marana 11555 West Civic Center Drive Marana,AZ 85653 Attn: Town Manager TOHONO O'ODHAM NATION: For U.S Mail use: Tohono O'odham Nation P.O Box 837 Sells,Arizona 85634 Attn:Attorney General Notice is deemed to have been given on the date on which notice is personally delivered, delivered to an overnight delivery service, or mailed. Notice is deemed to have been received on the date on which the notice is actually received or delivery is refused. IN WITNESS WHEREOF,the parties to this Agreement have executed this Agreement as of the date first set forth above. TOWN OF MARANA, an Arizona municipal corporation. By: Ed Honea, Mayor ATTEST: David L. Udall, Marana Town Clerk TOHONO O'ODHAM NATION, a federally recognized Indian tribe. 6 Exhibit A to Marana Resolution No. 2024-019 By: Verlon M. Jose Its: Chairman APPROVED AS TO FORM Howard M. Shanker, Attorney General 7 Exhibit A to Marana Resolution No. 2024-019 EXHIBIT A to Purchase and Sale Agreement for Long Term Storage Credits LONG-TERM STORAGE CREDITS a sa ,, :Vim f 1. s 366.0006 Lower Santa 71-561 73-561366.1300 70-084101.0000 12,000 CAP Cruz USF 8 Exhibit A to MaranEkmigipriflo. 2024-019 to Purchase and Sale Agreement for Long Term Storage Credits ADWR LONG-TERM STORAGE CREDIT TRANSFER FORM A.R.S. §45-854.01 ARIZONA DEPARTMENT OF WATER RESOURCES Water Planning&Permitting Division 1110 West Washington St.,Suite 310 Phoenix,Arizona 85007 Telephone(602)7714599 Fax(602)771-8689 For Official Use Only LONG-TERM STORAGE CREDIT TRANSFER FORM A.R.S.§45-854.01 DATE RECEIVED: The fee for a Long-Term Storage Credit Transfer is $250.00 per water storage transfer. Only one transaction may be requested per form. Payment may be made by cash,check, or credit card.. 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.R12-15-104. 'FOR ASSIGNOR' Name of Assignor Long-Term Storage Account No, Contact Person/Telephone Number Facility Permit Number(where source water was stored) Mailing Address Water Storage Permit Number(authority to store source water) City/State/Zip Email Number of long-term storage credits(in acre-feet)transferred by type(s)of water and year credits were earned. Type: acre-feet year earned Type: acre-feet year earned "FOR ASSIGNEE' If the transfer includes long-term storage credits earned from the storage of Central Arizona Project(CAP) water in an Active Management Area(AMA),please state: Name of Assignee 1. The date of Assignee's formation(if Assignee is a legal entity): Contact Person/Telephone Number • 2. The amount of groundwater withdrawn by Mailing Address Assignee in the AMA during the calendar year that the credits were earned: City/State/Zip a. The groundwater right number(s)the Assignee withdrew the groundwater Email pursuant to: Long-Term Storage Account No.(if any) Required Signature Block is on Page 2 Page/of 2 Revised 1/2020 9 Exhibit A to Marana Resolution No. 2024-019 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 knowledge and belief, correct and complete and that they are authorized to sign on behalf of the party for whom their signature appears. Authorized Signature for Assignor DATE Authorized Signature for Assignee DATE Title Title NOTICE A.R.S.§41-1030(B),(D),(E)and(F)provide as follows: B. An agency shall not base a licensing decision in whole or in part on a licensing requirement or condition that is not specifically authorized by statute,rule or state tribal gaming compact.A general grant of authority in statute does not constitute a basis for imposing a licensing requirement or condition unless a rule is made pursuant to that general grant of authority that specifically authorizes the requirement or condition. D. This section may be enforced in a private civil action and relief may be awarded against the state. The court may award reasonable attorney foes,damages and all fees associated with the license application to a party that prevails in an action against the state fora violation of this section. E. A state employee may not intentionally or knowingly violate this section. A violation of this section is cause for disciplinary action or dismissal pursuant to the agency's adopted personnel policy. F. This section does not abrogate the immunity provided by section 12-820.01 or 12-820.02. Page 2 of 2 Revised 1/2020 10 Exhibit A to Marana Resolution No. 2024-019 11