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:
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2010 Lake Tapps Area Water Resources Agreement
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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
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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.
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2010 Lake Tapps Area Water Resources Agreement
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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:
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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
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2010 Lake Tapps Area Water Resources Agreement
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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
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2010 Lake Tapps Area Water Resources Agreement
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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
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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.
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2010 Lake Tapps Area Water Resources Agreement
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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.
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2010 Lake Tapps Area Water Resources Agreement
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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.
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2010 Lake Tapps Area Water Resources Agreement
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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
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2010 Lake Tapps Area Water Resources Agreement
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