Loading...
HomeMy WebLinkAbout2010 Lake Tapps Area Water Resources Agreement , 2010 LAKE TAPPS AREA WATER RESOURCES AGREEMENT AMONG THE CITIES OF AUBiJRN, BONNEY LAKE, BUCKLEY AND SUMNER, AND CASCADE WATER ALLIANCE THIS LAKE TAPPS AREA WATER RESOURCES AGREEMENT ("AgreemenY') made and entered into on the 5°i day of February, 2010, by and among the CITY OF AUBURN, ("Auburn"), the CITY OF BONNEY LAKE, ("Bonney Lake") the CITY OF BUCKL,EY, ("Buckley") the CITY OF SUMNER, ("Sumner") (all municipal corporations of the State of Washington, collectively, tbe "Four Cities") and the CASCADE WATER ALLIANCE, a Washington non-profit corporation ("Cascade"). The Four Cities and Cascade together are sometimes collectively referred to as the "Parties." DEFINITIONS: "Water Right" shall mean the water right applications submitted to the Department of Ecology ("Ecology") 52-29920, R2-29935, and 52-29934 in their current form or as may be modified and as approved by Ecology. "Cascade's Tacoml Wholesale AgreemenP" means the Agreement For The Sale of Wholesale Water Behveen The Ciry of Tacomu, Department of Puhlic Utilities, Water Division and Cascade Water Alliance, dated October 13, 2005. The terms "Capacity Reservation Fee," "Peaking Factor," and "System Development Charges" are used in this Agreement as defined in Cascade's Tacoma Wholesale Agreement. "City" means one of the Four Cities individually. "Other Agreements" means the Agreement Regarding Reservoir Management Behveen PSE and the Lake Tapps Communiry, dated March 31, 2004; the White River Munagement Agreement Between the Puyullup Tribe of' Indians, the Muckleshoot Indian Tribe, und Cuscade Water Alliance, dated August 6, 2008; the Lake Tapps Water Rights Settlemenl Agreement, dated August 6, 2008; the Natural Resources Enhancement Agreement with the Puyallup Tribe of Indians, dated August 6, 2008; and the 2009 Agreement Regarding Lake Tapps between Cascade Water Alliunce und the Lake Tapps Community, dated May 13, 2009. TERMS OF AGREEMENT In consideration of their mu[ual covenants, conditions and promises, THE PARTIES HERETO AGREE as follows: Page 1 2010 Lake Tapps Area Water Resources Agreement February 1, 2010 EFFECTIVE DATE AND TERM: This Agreement shall take effect when executed by the Parties and shall remain in full force and effect for fifty (50) years, unless terminated (in whole or in part) eazlier in accordance with Sections 4 and 10. Provided, that any actions taken to enforce this Agreement before it expires, any conditions contained in , permits issued pursuant to or implementing the terms of this Agreement, and any contracts to purchase water shall survive this Agreement. The Term of this Agreement may be extended by written agreement of the Parties. CASCADE'S RESPONSIBILITIES: 1. Lake Tapps Municipal Advisory Group. Cascade agrees to the estabiishment of the Lake Tapps Municipal Advisory Group as follows: a. The Lake Tapps Municipal Advisory Group shall consist of the elected Mayors of each of the Four Cities and three (3) members of the Cascade Board of Directors (the Cascade Board). If any of the Four Cities becomes a Member of Cascade, the Mayor of that City will not be considered a member of the Lake Tapps Municipal Advisory Group unless appointed as a representative of the Cascade Boazd. b. The Lake Tapps Municipal Advisory Group will be a non-voting entity with the purpose of: (1) advising the Four Cities of proposed or pending Cascade decisions or actions related to the management of Lake Tapps that may affect the Four Cities; (2) advising Cascade of any issue that the Four Cities may have related to Cascade's management of Lake Tapps; (3) seeking cooperative resolution of any issues raised by Cascade or the Four Cities; and (4) any other matters related to the implementation of provisions of this Agreement. c. The Lake Tapps Municipal Advisory Group will meet at least twice annually, with such meetings to be generally held in early/mid October and early/mid April, or as otherwise agreed by the members. Meetings may indude staff of Cascade and the Four Cities as determined by the group. At the regulaz meeting of the Cascade Board immediately following a meeting of the Lake Tapps Municipal Advisory Group, a representative of the group will report on the issues discussed and present any recommendations for cooperative resolution of any issues discussed. 2. Remedies for Negative Impact on Water Supply. In accordance with the terms of this Agreement, if Cascade's Lake Tapps water supply operations result in a negative impact to the water supplies of one of the Four Cities that is not a Cascade member, the City claiming a negative impact must notify Cascade of their claim and give Cascade at least sixty days to resolve the claimed impact If Cascade fails to resolve the claimed negative impact or disputes that the negative impact exists, the City claiming the negative impact may pursue existing legal remedies in accordance with state and federal law. If a court ' Page 2 2010 Lake Tapps Area Water Resources Agreement February 1, 2010 determines that a negative impact has occurred, Cascade shall implement a remedy acceptable to the claiming City or, if the affected City or Cities and Cascade can not agree on a remedy, the court shall establish the terms for the remedy. 3. Water Supply Assistance. Cascade agrees to assist the Four Cities in their efforts to meet their respective projected 50-year water needs by implementing one ar more of the following measures: a. Tacoma Wholesale Water. Through December 31, 2026, Cascade shall make available the following water supply that may be purchased by the Four Cities either individually or jointly: up to six (6) million gallons per day (MGD) under section 6.2 of Cascade's Tacoma Wholesale Agreement (hereinafter referred to as "Cascade's Guazanteed Reserve Capacity") and up to four (4) MGD under section 6.1 of Cascade's Tacoma Wholesale Agreement (hereinafter refened to as "Cascade's Permanent Capacity") under the following conditions: 1) For water supply from Cascade's Guaranteed Reserve Capacity to be available throughout the yeaz, the City agrees to pay to Cascade an amount equal to the Capacity Reservation Fee (CRF) paid to Tacoma multiplied by the amount to be purchased in MGD ($1,570,074.00 per MGD). It is understood that this Guazanteed Reserve Capacity water includes a peaking factor of 133 for the months of June through September and the City agrees to pay this fee. 2) For water supply from Cascade's Guazanteed Reserve Capacity to be available only during the peak season (June through Sepfember), the City agrees to pay to Cascade an amount equal to a pro-rated portion of the Capacity Reservation Fee paid to Tacoma multiplied by the amount to be purchased in MGD (1/3 of the CRF or $523,358.00 per MGD). It is understood that this Guazanteed Reserve Capacity water includes a peaking factor of 133 for ttie months of June through September and the City agrees to pay this fee. 3) For water supply from Cascade's Permanent Capacity to be available either during peak period only or throughout the year, the City agrees to pay to Cascade an amount equal to the System Development Charge (SDC) paid by Cascade to Tacoma multiplied by the amount to be purchased in MGD ($4,121,000 per MGD) prorated by the number of months the water will be used each yeaz. (For example, if a City purchases 1 MGD only from June through September, it would pay 1/3 of the SDC, or $1,373,667 per MGD.) It is understood that this Permanent Capacity water includes a peaking factor of 1.33 --£or the months of June through-September and-the City agrees to pay this fee. Page 3 2010 Lake Tapps Area Water Resources Agreement February 1, 2010 4) Each City that purchases water under tlus Section 3 of this Agreement will designate a delivery point and either pay Tacoma directly or rennburse Cascade for costs incurred to install necessary service taps, meters or vaults. Any infrastructure beyond the designated delivery point that may be required to deliver the purchased water to retail customers will be solely the responsibility of the City. 5) Each City that purchases water under ttus Section 3 of this Agreement will provide Cascade with the necessary delivery scheduling information required under Cascade's Tacoma Wholesale Agreement, and will reimburse Cascade for ' all wholesale charges from Tacoma associated with deliveries at the City's delivery point, in accordance with the provisions of Section 9.1 of Cascade's Tacoma Wholesale Agreement, except for Cascade's obligation to pay the Minimum Montlily Bill. 6) At any time prior to December 31, 2026, any of the Four Cities that have entered into wholesale water purchase agreements with Cascade under this Section 3 of this Agreement may ask Cascade to request that Tacoma make permanent the amount of water being purchased from Cascade under this Section 3 in accordance with section 15.1 of Cascade's Tacoma Wholesale Agreement. If approved by Tacoma, the requesting City agrees to pay to Cascade any amounts due from Cascade to Tacoma pursuant to section 15.1.2 of Cascade's Tacoma Wholesale Agreement for the duration of Cascade's obligation to Tacoma. 7) Cascade shall not terminate, relinquish or amend Cascade's Tacoma Wholesale Agreement in any way that adversely impacts the Four Cities' ability to purchase water as set forth in this Agreement without the prior express written consent of the Four Cities. b. Regional Reserved Water. Through December 31, 2030, Cascade will provide Lake Tapps Region Reserved Water ("Regional Reserved Water") to assist the Four Cities to secure or apply for altemative water supplies or water rights undei the following conditions: 1) Cascade will include Regional Reserved Water, consistent with this Agreement, in its State Environmental Policy Act (SEPA) Draft Environmental Impact Statement (DEIS) regazding the Lake Tapps Water Rights and Supply Project. 2) Subject to the SEPA DEIS process, Cascade will request approval by Ecology of the Lake Tapps municipal water right application as follows: Page 4 2010 Lake Tapps Area Water Resources Agreement February 1, 2010 I (a) Regional Reserved Water in an amount of seven (7) cubic feet per second (cfs) annual average (Qa) and ten (10) cfs maximum instantaneous (Qi) would be reserved for the use by any or all of the Four Cities to mitigate impacts on the White River of new water rights or changes to existing water rights. (b) Regional Reserved Water would not be diverted into Lake Tapps, but instead be allowed to flow down the White River for potential use by any of the Four Cities. 3) If such Regional Reserved Water is approved by the Department of Ecology as provide in this Agreement, use of such Regional Reserved Water may be included as part of a water right application submitted individually by any of the Four, _ Cities. Ecology approval of water rights utilizing Regional Reserved Water must be secured by the CiTy on or before December 31, 2030. Beneficial use of such Regional Reserved Water will take place consistent with approved development schedules included in those water right approvals. Any Regional Reserved Water not authorized for use in a water right approved by December 31, 2030, shall revert to Cascade. 4) Cascade shall have no other obligation or involvement in any water right applications submitted by the Four Cities utilizing the Regional Reserved Water. Any concerns Cascade may have regarding a City's application shall be raised pursuant to the dispute resolution provisions of Section 18 of this Agreement, prior to pursuing any legal action, including administrative appeals. 5) Within 90 days of any of the Four Cities receiving final approval of new or changed water rights incorporating use of Regional Reserved Water, that City shall pay Cascade a one-time Regional Water Charge equal to $743,950.00 per cfs. If the water right includes seasonal limitations on use of Regional Reserved Water, the Regional Water Chazge shall be pro-rated to reflect the seasonal availability of such water. c. Water from Tailrace. Subject to availability and to supporting findings in a report of examination for one of the Four Cities' new or changed water right applications, Cascade would provide water by releasing water from the Lake Tapps Project tailrace to the White River, on terms to be negotiated by Cascade and the requesting City. d. Support. In order to support the efforts made by any of the Four Cities to acquire new water rights or transfer existing water rights, and upon request by any of the Four Cities, Cascade shall provide technical support, in the form of access to existing modeling and any other technical documentation available to Cascade. Upon request of the Four Page 5 2010 Lake Tapps Area Water Resources Agreement February 1, 2010 Cities and so long as consistent with Other Agreements and approvals related to the Lake Tapps Project, Cascade shall also provide letters or other documentation in support of actions taken by the Four Cities to secure new water rights or transfers of water rights, including but not limited to letters of support in establishing a fmding of overriding considerations of the public interest by the Department of Ecology pursuant to RCW 90.54.020(3)(a). 4. Termination. Cascade's obligations under Sections 1 through 3 of this Agreement aze in force and effect as to each City only so long as that City fulfills its obligations under this Agreement and has not appealed the Water Right. 5. Local Franchise and Permit Requirements. When operating in any of the Four Cities' municipal boundaries, Cascade will comply with all of that City's franchise and permitting requirements. CITIES' RESPONSIBILITIES: 6. Purchase of Tacoma Wholesale Water. The Four Cities, collectively or individually, at each City's sole discretion, agree to buy water under Cascade's Tacoma Wholesale Agreement at the rates, including connection and wholesale chazges as set forth in this Agreement. The Four Cities shall be responsible for dividing the purchased. capacity among themselves, and shall negotiate wheeling or other applicable agreements either with Cascade or directly with Tacoma Water. Except as expressly provided othenvise in this Agreement, the Four Cities agree to be bound by the terms of the Cascade's Tacoma Wholesale Agreement. 7. Dismissal of Litigation. Within fifteen (15) business days after filing and/or recording of this Agreement, Auburn will withdraw and dismiss its pending lawsuit, with prejudice, against Cascade (King County Case Number 05-2-35788-6). 8. Four Cities Support of the Water Right. So long as the EISs aze issued by Cascade and the Water Right is approved by Ecology consistent with this Agreement, the Four Cities will support the EISs and the Water Right. 9. Municipal Advisory Group. The Four Cities, represented by their duly elected Mayors, will participate in the Lake Tapps Municipal Advisory Group as described in this Agreement. 10. Amending Legislation. Within thirty (30) days of issuance of the Water Right consistent with this Agreement, the Four Cities will support legislation amending RCW 3934.215 by deleting subsections (4) (c) and (5). 11. Termination. The Four Cities' obligations under Sections 6 through 10 of this Agreement Page 6 2010 Lake Tapps Area Water Resources Agreement February 1, 2010 aze in force and effect only so long as Cascade fulfills its obligations under this Agreement and the ROEs issued by Ecology for the Water Right aze consistent with this Agreement regarding the Regional Reserved Water. GENERAL 12. Indemnification. Each Party shall indemnify and hold the other Parties and their agents, employees; and/or officers, hannless from and shall process and defend at its own expense any and all claims, demands, suits, at law or equity, actions, penalties, losses, damages, or costs, of whatsoever kind or nature, brought against that Party arising out of, in connection with, or incident to the execution of this Agreement and/or the Indemnifying Party's performance or failure to perform any aspect of this Agreement; provided, that nothing herein shall require an Indemnifying Party to hold hacmless or defend any other Party, its agents, employees and/or officers from any claims arising from the sole negligence of that other Party, its agents, employees, and/or officers. No liability shall attach to any Par[y by reason of entering into this Agreement except as expressly provided herein. 13. Compliance with regulations and laws. The parties shall comply with all applicable rules . and regulations pertaining to them in connection with the matters covered herein. 14. Assignment. No Party shall assign this Agreement or any interest, obligation or duty therein without the express written consent of all other parties. 15. Attorneys' Fees. If any party shall be required to bring any action to enforce any provision of this Agreement, or shall be required to defend any action brought by the other party with respect to this Agreement, and in the further event that one party shall substantially prevail in such action, the losing party shall, in addition to all other payments required therein, pay all of the prevailing party's reasonable costs in connection with such action, including such sums as the court or courts may adjudge reasonable as attorney's fees in the trial court and in any appellate courts. 16. Notices. All notices and payments hereunder may be delivered or mailed. If mailed, they shall be sent to the following respective addresses: CiTy of Auburn City of Bonney Lake 25 West Main 19306 Bonney Lake Blvd. Auburn, WA 98001-4998 Bonney Lake, WA 98391 Attn: Public Works Director Attn: Public Works Director Phone:(253) 931-3000 Phone: (253) 862-8602 Fax:(253)931-3053 Fax: (253) 862-8538 Page 7 2010 Lake Tapps Area Water Resources Agreement Februaiy 1, 2010 City of Buckley City of Sumner 933 Main St 1104 Maple St. PO Box 1960 Sumner, WA 98390 Buckley, WA 98321 Attn: Public Works Director Attn: City Administrator Phone: (253) 863-8300 Phone: (360) 829-1921 Fax: (253) 299-5509 FaY:(360)829-2659 Cascade Water Alliance General Counsel, Cascade Water Alliance 11400 SE 8th Street, Suite 440 GordonDerr, LLP Bellewe, Washington 98004 2025 First Avenue South, Suite 500 Attn: Chief Executive Officer Seattle, Washington 98128-3140 Phone: (425) 453-0930 Phone: (206) 382-9540 FaY: (425) 425-453-0953 Fax: (206) 625-0675 or to such other respective addresses as any party hereto may hereafter from 6me to time designate in writing. All notices and payments mailed by regular post (including first class) shall be deemed to have been given on the second business day following the date of mailing, if properly mailed and addressed. Notices and payments sent by certified or registered mail shall be deemed to have been given on the next business day following the date of mailing, if properly mailed and addressed. For all types of mail, the postmark affixed by the United States Postal Service shall be conclusive evidence of the date of mailing. 17. Enforceability: The Parties intend this Agreement to be certain and enforceable, as well as a mechanism for ongoing collaboration as to any issues that may azise in connection with implementation of the Agreement. Except as necessary for compliance with and enforcement of this Agreement, the parties do not intend this Agreement to modify their respective rights or authorities. 18. Dispute Resolution. In the event that any dispute arises between Cascade and the Four Cities, the aggrieved Party shall give a notice of the dispute to the other Party as provided in Section 16. Cascade and the Four Cities shall, within five (5) days of such notice, each nominate a senior officer of its management to meet at a mutually agreed location, to attempt to resolve such dispute. The Parties shall each designate a representative(s) to confer on the best and most cost effective way to resolve the dispute. By mutual agreement, they may choose direct negotiations or mediation. If there is no agreement between the Parties on how to proceed within thirty (30) days, either Party may pursue legal action; provided however, no Party shall be precluded from filing an appeal or action to prevent the expiration of a tune period for filing or any statute of limitations. Page 8 2010 Lake Tapps Area Water Resources Agreement February 1, 2010 19. Non-Waiver. No delay or failure by a Party to exercise any of its rights, powers or remedies under this Agreement following any breach by another Party shall be construed to be a waiver of any such breach, or any acquiescence therein, or of or in any similar breach thereafter occurring, nor shall any waiver of any single breach be deemed a waiver of any other breach theretofore orthereafter occurring. 20. Severability. In the event that any of the terms of this Agreement aze in conflict with any rule of law or statutory provision or otherwise unenforceable, such terms will be deemed stricken from this Agreement, but such invalidity or unenforceability will not invalidate any of the other terms of this Agreement, and this Agreement will continue in force, unless the invalidity or unenforceability of any such provisions hereof does substantial violence to, or where the invalid or unenforceable provisions comprise an integral part of, or are otherwise insepazable from, the remainder of this Agreement. 21. No Third Party Bene£ciary. This Agreement is for the sole and exclusive benefit of the Parties and is not intended to and shall not confer any rights or benefits on any third party not a signatory hereto. 22. Amendment. This Agreement only may be amended or supplemented in a writing signed by the Parties. 21 Survival of Claims. Any claim that a Party has asserted by raising it under the Dispute Resolution provisions of this Agreement prior to the termination of this Agreement and that may reasonably be interpreted or construed to survive the termination of this Agreement shall survive the termination of this Agreement. 24. Signature in Counterpart. This Agreement may be executed in any number of counterparts and all of those counterparts taken together shall constitute one and the same instrument. 25. Further Assurances. Each Party covenants and agrees to do all things necessary or advisable in order to confirm and better assure the intent and purposes of this Agreement. 26. Authority. Each party, by executing tfiis Agreement warrants that it has duly approved this Agreement and has the power to enter into this Agreement and to enforce its terms. Page 9 2010 Lake Tapps Area Water Resources Agreement February 1, 2010 27. Good Faith Commitment to Support Agreement. The Parties covenant and agree to act in good faith and to support the terms and validity of this Agreement. Cascade shall, during the term of this Agreement, support and defend the validity of the Agreement and shall not seek, either directly or indirectly, to invalidate the Agreement or undermine or modify its terms and conditions through administrative, legislative, judicial or other means. 28. Nondiscrimination. Each of the parties, for itself, its heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree that it will comply with pertinent statutes, Executive Orders and such rules as aze promulgated to assure that no person shall, on the grounds of race, creed, color, national origin, sex, age, or the presence of any sensory, mental or physical handicap be discriminated against or receive discriminatory treatrnent by reason thereof. 29. Applicable Law. This Agreement shall be deemed to be made and construed in accordance with the laws of the State of Washington jurisdiction and venue for any acUon arising out of this Agreement shall be in Pierce County, Washing[on. 30. Captions. The captions in this Agreement are for convenience only and do not in any way limit or amplify the provisions of this Agreement. 31. No Additional Entities Created. Unless otherwise specifically provided herein, no sepazate legal entity is created hereby, as each of the parties is contracting in its capacity as a municipai corporation of the State of Washington; or as a Washington non-profit Corporation. The identity of the parties hereto is as set forth hereinabove. 32. Integrated Agreement. This Agreement constitutes the entire agreement between the parties. There are no terms, obligations, covenants or conditions other than those contained herein. No modifications or amendments of this Agreement shall be valid or effective unless evidenced by an agreement in writing signed by all par[ies. 33. Filing. Copies of this Agreement shall be filed with the King County Auditor's Office; the Pierce County Auditor's Office; the Secretary of State of the State of Washington; and the respective Clerks of the parties hereto. IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the day and yeaz first above written. Page 10 2010 Lake Tapps Area Water Resources Agreement February 1, 2010 CITY O-ARN _ CITY OF BONNEY LAKE Peter B. Lewis, Mayor Date Neil Johnson, Mayor Date Attest: Attest ~5~/a i,ret ~C-Ofrvs*~c~ S!o Da ielle Daskam, City Clerk Date arwood T. Edvalson, CMC Date Appr e as Approved as to Form: P-Z-~-za~c Damel B. Hei , City Attorn Date ames Dio , City Attorney Date CITY OF BUCKLEY CITY OF SUMNER ~ S /lj `~✓js.a 2 S co : Pat Johnso , ayor D te ave Enslow, Mayor Date A est: Attest: 0 ((I Joanne Starr, Deputy City Clerk Date Terri Berry, CMC, Ci Clerk a Ap roved as to Form: / Approved as to Form: f /~a Kat leen allison, D te Brett Vinson, City Attorney ate Law Office of Kathleen Callison, P.S. CASCADE WATER ALLIANCE CASCADE WATER ALLIANCE 6W4~~ Chuck Clarke, CEO Date Terese Richmond, Date General Counsel Page 11 2010 Lake Tapps Area Water Resources Agreement February 1, 2010 ` ' ' '1 . , ' I . ' l i