2022 Compensated Conservation Agreement

City of Glendale — Regular Meeting (2022-05-10)

Extracted text (via pymupdf) 13504 characters

CITY OF GLENDALE CAP COMPENSATED CONSERVATION AGREEMENT

AGREEMENT AMONG THE STATE OF ARIZONA, ACTING THROUGH THE ARIZONA DEPARTMENT
OF WATER RESOURCES, THE UNITED STATES, ACTING THROUGH THE DEPARTMENT OF THE
INTERIOR, BUREAU OF RECLAMATION, CENTRAL ARIZONA WATER CONSERVATION DISTIRCT
AND CITY OF GLENDALE FOR THE CONSERVATION OF CENTRAL ARIZONA PROJECT WATER

1.
PREAMBLE.
THIS AGREEMENT (“Agreement”) is entered into this ________ day of
___________, 2022 by and between the State of Arizona, acting through the Arizona Department
of Water Resources (“ADWR”), the United States, acting through the Department of the Interior,
Bureau of Reclamation (“United States”), the Central Arizona Water Conservation District
(“CAWCD”) and City of Glendale (“Glendale”), each referred to individually as a “Party” and
collectively as the “Parties.”
2.
EXPLANATORY RECITALS.

2.1
WHEREAS, in 2007, the United States Secretary of the Department of the Interior
(“Secretary”), adopted a Record of Decision: the Colorado River Interim Guidelines for Lower
Basin Shortages and Coordinated Operations for Lake Powell and Lake Mead (“2007 Guidelines”),
to among other things, provide incentives and tools for the storage of water in Lake Mead and
for Lake Mead elevation-dependent shortages;

2.2
WHEREAS, in 2019 the Lower Division States entered into a Lower Basin Drought
Contingency Plan Agreement that further incentivized conservation and storage in Lake Mead
and established elevation-dependent contributions to Lake Mead’s sustainability, including
required contributions by each Lower Basin State. Federal legislation, the Colorado River Drought
Contingency Plan Act, Pub. L. No. 116-14 (2019) directed the Secretary to implement a number
of agreements, including specifically an agreement applicable in the Lower Basin that
implemented a Lower Basin Drought Contingency Operations rule set known as the “LBOps;”

2.3
WHEREAS, the LBOps provide that “If any 24-month Study for the minimum
probable inflows projects that Lake Mead elevations will be at or below 1,030 feet anytime within
the succeeding two Years, the Secretary and Lower Division States shall consult and determine
what additional measures will be taken by the Secretary and Lower Division States to avoid and
protect against the potential for Lake Mead to decline below 1,020 feet,” and the Bureau of
Reclamation’s August 2021 24-month study using the minimum probable inflow projected Lake
Mead would fall below elevation 1,030 feet in July of 2023;

CITY OF GLENDALE CAP COMPENSATED CONSERVATION AGREEMENT

2.4
WHEREAS, Pursuant to the requirements of the LBOps, the Secretary and
representatives of the Lower Division States met and concluded that at least 500,000 acre-feet
per year of additional reductions in water use or augmentation of system water would be
required starting in 2022 to protect against the potential of Lake Mead declining to levels below
elevation 1,020 feet;

2.5
WHEREAS, on December 15, 2021, the United States, ADWR, CAWCD, The
Metropolitan Water District of Southern California (“MWD”), Southern Nevada Water Authority
(“SNWA”), and the Colorado River Commission of Nevada (“CRCN”) entered into a Memorandum
of Understanding to facilitate near-term actions necessary to maintain the elevation of water in
Lake Mead, including commitments to fund conservation activities designed to conserve 500,000
acre-feet or more of water in Lake Mead, commonly referred to as the 500 + Plan; and

2.6
WHEREAS, the Parties desire to take proactive measures consistent with the 500 +
Plan to protect against the potential of Lake Mead dropping to elevation 1,020 feet. Glendale is
willing to conserve 350 acre-feet of CAP water in calendar year 2022 for this purpose, in exchange
for compensation, as provided for in this Agreement.
NOW THEREFORE, in consideration of the terms and conditions set forth herein, and other
valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Parties
agree as follows:
3.
TERM.

3.1
This Agreement shall be effective upon execution by all Parties and shall terminate
on December 31, 2022.

3.2
The Parties may agree to renew this Agreement for calendar year 2023 by entering
into a new agreement in writing.
4.
COMPENSATED CONSERVATION AGREEMENT.

4.1
Within 30 days of execution of this Agreement, Glendale shall submit to CAWCD
an amended CAP water order reducing its existing water order for calendar year 2022 by 350
acre-feet (“Conserved Water Amount”).

4.2
The Parties agree that the water conserved under this Agreement will reduce
releases of water from Lake Mead to benefit Lake Mead water elevations.

CITY OF GLENDALE CAP COMPENSATED CONSERVATION AGREEMENT

4.3
Within 60 days of receipt of Glendale’s amended water order, CAWCD will pay
Glendale $261.60 per acre-foot of conserved water for a total of $91,560.

4.4
To the extent historic use applies in determining the volume of CAP water
available to Glendale in any future year, the Parties agree that the Conserved Water Amount shall
be accounted for by CAWCD and Reclamation as water actually delivered and used pursuant to
Glendale’s subcontract entitlement.

4.5
CAWCD shall not bill Glendale, and Glendale shall be relieved of its obligation to
pay, for CAP fixed OM&R and energy charges for the total Conserved Water Amount identified in
Section 4.1 herein.

4.6
In the unanticipated and unforeseen event Glendale takes action that interferes
with the objective of foregoing the amount of water that was paid for by the Parties, in
accordance with this Agreement, Glendale agrees to reimburse for the overpayment within 30
days of receipt of a bill for collection from CAWCD.

4.7
Reclamation will use its existing water order approval process and other
authorities to ensure that the Conserved Water under this Agreement is not ordered or used by
other Colorado River water entitlement holders during calendar year 2022.

4.8
The Parties agree that the water left in Lake Mead pursuant to this Agreement
shall accrue to the benefit of the Colorado River System and shall not accrue to the individual
benefit of the Parties or any third party.
5.
GENERAL TERMS.

5.1
Amendment, Modifications, and/or Supplement. This Agreement may be
amended, modified, or supplemented only by the written, signed agreement of all Parties.

5.2
Notices. Any notice, demand, or request authorized or required by this
Agreement shall be in writing and shall be deemed to be duly given if emailed, delivered, or
mailed first class the following addresses:
If to ADWR:

Arizona Department of Water Resources

Attn: Director

P.O. Box 36020

Phoenix, AZ 85067

Email: tbuschatzke@azwater.gov

With copy to:

Ayesha Vohra

Deputy Chief Counsel
P.O. Box 36020
Phoenix, AZ 85067
Email: avohra@azwater.gov

CITY OF GLENDALE CAP COMPENSATED CONSERVATION AGREEMENT

If to CAWCD:

Central Arizona Water Conservation District

Attn: General Manager

P.O. Box 43020

Phoenix, AZ 85080-3020

With copy to:

Jay Johnson

General Counsel

Central Arizona Water Conservation District

Attn: General Manager

P.O. Box 43020

Phoenix, AZ 85080-3020

Email: jjohnson@cap-az.com
If to Reclamation:

Bureau of Reclamation
Interior Region 8: Lower Colorado Basin
Attn: Regional Director
P.O. Box 61470
Boulder City, NV 89006-1470
Email: slwade@usbr.gov

With a copy to:

Bureau of Reclamation

Phoenix Area Office

Attn: Area Manager

6150 West Thunderbird Road

Glendale, AZ 85306
Email: lmeyers@usbr.gov
If to Glendale:

City of Glendale
Attn: City Manager
5850 W. Glendale Ave
Glendale, AZ 85301

With a copy to:

City of Glendale

Attn: City Attorney
5850 W. Glendale Ave
Glendale, AZ 85301

CITY OF GLENDALE CAP COMPENSATED CONSERVATION AGREEMENT

The Parties agree that for purposes of complying with this Section that electronic mail is
acceptable. A Party may update its contact information in this Section without need to amend
this Agreement by providing Notice to the Parties consistent with this Section.
5.3
Counterparts. This Agreement may be executed in counterparts, each of which
will be considered an original and all of which together constitute only one Agreement.

5.4
Binding Effect and Limited Assignment. This Agreement constitutes the entire
agreement between the Parties with respect to the subject matter of this Agreement and
excludes and supersedes any other oral or written agreements, undertakings or commitments of
the Parties relating to the subject matter of this Agreement. The provisions of this Agreement
shall apply to and bind the successors and assigns of the Parties. No assignment or transfer of
this Agreement or any right or interest therein shall be valid until approved in writing by all
Parties.
5.5
Conflict of Interest. The Parties to this Agreement are hereby notified of and
acknowledge A.R.S. § 38-511 regarding cancellation for conflict of interest.
5.6
Governing Law and Venue. This Agreement shall be interpreted, governed by, and
construed under applicable Federal law and any relevant provisions of Arizona state law. In case
of conflict between Federal law and Arizona state law, Federal law controls. To the extent
permissible under the Federal Rules of Civil Procedure and other applicable Federal authority,
venue for adjudication of any disputes under this Agreement shall be in appropriate Federal
Court.
5.7
Availability of Funds. Every payment obligation of ADWR under this Agreement,
if any, is conditioned upon the availability of funds appropriated or allocated for payment of such
obligation. No liability shall accrue to ADWR or the State of Arizona in the event this provision is
exercised, and neither ADWR nor the State of Arizona shall be obligated or liable for any future
payments or for any damages as a result of termination under this section.
5.8
Contingent on Appropriations or Allotment of Funds. The expenditure or advance
of any money or the performance of any obligation of the United States under this Agreement
shall be contingent upon appropriation or allotment of funds. No liability shall accrue to the
United States in case funds are not appropriated or allotted.
5.9
Dispute Resolution.
i. The Parties shall meet and confer in good faith to resolve any dispute that may
arise under this Agreement.
ii. Should the Parties be unable to resolve such dispute after meeting to try to
resolve the dispute, any Party may file an action in any court of competent jurisdiction to
seek specific performance of any obligation, provision, or term of condition set forth in
this Agreement. The Parties agree to engage in any alternative dispute resolution
procedures authorized by their statutes, regulation and court rules, including but not
limited to, 5 U.S.C. § 575 and A.R.S. §§ 12-133 and 12-1518.

CITY OF GLENDALE CAP COMPENSATED CONSERVATION AGREEMENT

iii. Monetary damages, other than through specific performance of any obligation
under this Agreement, shall not be available as a remedy for any dispute under this
Agreement.
5.10
Recitals. The Explanatory Recitals are incorporated and made a part hereof as if
fully set forth herein.
5.11
Severability. If any provision of this Agreement shall be determined to be void by
any court of competent jurisdiction, such determination shall not affect any other provision
hereof, all of which other provisions shall remain in full force and effect.
5.12
Records Retention. Glendale agrees to retain all data, books, and other records
(“records”) relating to this Agreement for a period of five years after the termination of this
Agreement. All records shall be subject to inspection and audit by the Parties at reasonable
times. Upon request, Glendale shall provide the Parties with any or all such records.
5.13
Equal Opportunity/Non-Discrimination. The Parties agree to comply with all
applicable federal or state laws relating to equal opportunity and non-discrimination.

SIGNATURES BEGIN ON NEXT PAGE

CITY OF GLENDALE CAP COMPENSATED CONSERVATION AGREEMENT

THE UNITED STATES OF AMERICA

By: ______________________________________

Jacklynn L. Gould, P.E.

Regional Director

Interior Region 8: Lower Colorado Basin

Bureau of Reclamation

CITY OF GLENDALE CAP COMPENSATED CONSERVATION AGREEMENT

Approved as to form:
CENTRAL ARIZONA WATER

CONSERVATION DISTRICT

By: ________________________

By: _______________________________

Jay M. Johnson
Theodore C. Cooke

General Counsel
General Manager

CITY OF GLENDALE CAP COMPENSATED CONSERVATION AGREEMENT

Approved as to form:
THE STATE OF ARIZONA ACTING THROUGH
THE DIRECTOR OF THE ARIZONA
DEPARTMENT OF WATER

RESOURCES

By: ________________________

By: _______________________________

Nicole D. Klobas
Thomas Buschatzke

Deputy Chief Counsel
Director

CITY OF GLENDALE CAP COMPENSATED CONSERVATION AGREEMENT

CITY OF GLENDALE

By:___________________________

Kevin R. Phelps

City Manager