HomeMy WebLinkAboutResolution 2001-026 agreement for construction of water facilities for saguaro springs F. ANN RODRIGUEZ, RECORDER ~ DOCKET: 11490
P~ECORDED BY: JEB ///~.~P~ PAGE: 1608
DEPUTY RECORDER ~ NO. OF PAGES: 2
2012 RO0C SEQUENCE: 20010350437
SMARA 02/21/2001
TOWN OF MARANA RES 14: 42
ATTN: TOWN CLERK
13251 N LON ADAMS RD MAIL
MARANA AZ 85653
AMOUNT PAID $ 8.00
MARANA RESOLUTION NO. 2001-26
A RESOLUTION OF THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA,
ACCEPTING AND AUTHORIZING THE APPROVAL OF AN AGREEMENT BETWEEN THE
TOWN OF MARANA AND BEST ASSOCIATES II, L.L.C., A LIMITED LIABILITY
CORPORATON FOR CONSTRUCTON OF WATER FACILITIES AND PROVISION OF
WATER UTILITY SERVICE.
WHEREAS, Best Associates II, L.L.C., intends to facilitate the development of that certain
property to be called Saguaro Springs, more specifically described within Exhibit "I," an Agreement
for Construction of Water Facilities and Provision of Water Utility Service between the Town of
Marana and Best Associates II, LL.C. (the "Agreement"); and
WHEREAS, Best Associates II, L.L.C., is desirous of arranging for the provision of water
service to and within the Property in connection with Development thereof; and
WHEREAS, Marana is willing to provide water service to and within the Property in
accordance with the Municipal Code of Marana and in accordance with the terms of the Agreement;
and
WHEREAS, Best Associates Il, L.L.C., agrees to the construction of water facilities within
Saguaro Springs; and
WHEREAS, the Town of Marana, agrees to provide water service to the Saguaro Springs
development, pursuant to the terms and conditions of the Agreement; and
WHEREAS, the Mayor and Council find that the terms and conditions of the Agreement are
in the best interest of the Town.
4
Marana, Arizona Resolution No. 2001-26 I of 1
NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the Town of
Marana, Arizona, accepting and authorizing the approval of the Agreement for Construction of
Water Facilities and Provision of Water Utility Service between the Town of Marana and Best
Associates II, L.L.C., a limited liability corporation, attached hereto as Exhibit "1" and incorporated
herein by this reference, for construction of water facilities and provisions for water utility service.
PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona, this
20th day of February 2001.
ATTEST: ~SUTTON, JR.
~/Town CIerk
APPROVED AS T0 FOl:kM*/
Daniel J. Hochuli, Esq.
As Town Attorney
and not personally
i
i
4
9
_-~
i
9
Marana, Arizona Resolution No. 2001-26 2 of 2
...,"~
F. ANN RODRIGT~, RECORDER
RECORDED BY: ,l .
, -
DEPUTY RECORDER
7864 ROOC
cET: 11742
PAG1i:: 2771
NO. OF PAGES: 27
SEQUENCE: 20020360701
02/22/2002
16:50
SMARA
TOWN OF MARANA
ATTN: TOWN CLERK
13251 N LON ADAMS RD
MARANA AZ 85653
AG
MAIL
AMOUNT PAID $ 19.00
TOWN OF MARANA
AGREEMENT FOR CONSTRUCTION
OF WATER FACILITIES
AND PROVISION OF WATER UTILITY SERVICE
THIS AGREEMENT Fj.,R CONSTRUCTION OF WATER FACILITIES, entered
into as of theL~+~ daY,=1 . ,2001, by and between the TOWN OF MARANA,
ARIZONA, an Arizona municipal corporation, (hereinafter referred to as "Marana") and
Best Associates II, L.L.C., a limited liability corporation (hereinafter referred to as the
"Developer" or Applicant"), is for the construction of "Water Facilities" necessary to
provide water utility service to its property, which is more specifically described on
Exhibit "A" attached hereto and made a part hereof, (hereinafter the "Property"), on the
following terms and conditions:
RECITALS
WHEREAS, Developer warrants it (i) is legally qualified to do business in the
State or Arizona, and (ii) owns the Property which is the subject to this Agreement; and
WHEREAS, Developer is desirous of arranging for the provision of water service
to and within the Property in connection with development; and
WHEREAS, Marana (i) owns and operates a municipal water system, and (ii) is
experienced in the provision of water service; and
WHEREAS, Marana is willing to supply water to Developer in accordance with
the Municipal Code of Marana, and in accordance with the terms of this Agreement.
COVENANTS
1
NOW, THEREFORE, in consideration of the Recitals set forth above and the
mutual covenants, conditions, and agreements set forth below, the parties agree as
follows:
2
Best Associates II, L.L.C. Water Service Agreement (Rev. 7 Dated 02-01-01)
1. DEFINITIONS
1.1 Applicant or Developer: Best Associates II, L.L.C., and its successors and
assigns.
1 .2 Property: That certain property or real estate development known as
Saguaro Springs and as shown on Exhibit "A" attached hereto and made
a part hereof.
1.3 Water Facilities: The public water facilities and appurtenances to be
constructed under this Agreement and located within public rights-of-way
or dedicated easements, and which, upon completion by Developer and
inspection and acceptance by Marana, are to be deeded to Marana for
operation and maintenance, including but not limited to water mains,
valves, pipelines, booster pumps, wells, reservoirs and all other water
facilities necessary for service to the Property and appurtenant to the
municipal water supply system of Marana.
1.4 Water System: Water Facilities, including water mains, valves, pipelines,
booster pumps, wells, reservoirs and all other water facilities and
appurtenances necessary for service to the Property and appurtenant to
the municipal water supply system of Marana.
1.5 Work: As defined in Paragraph 2.7.
2. CONSTRUCTION OF WATER FACILITIES
2.1 Plans and Specifications. Testinq and PhasinQ. Developer shall design
and construct, at Developer's own expense, the Water Facilities in
accordance with approved Plans and Specifications. The approved Plans
and Specifications shall (i) conform to the design standards of the City of
Tucson Water Department and the Marana Town Water Code, (ii) be
sized to and capable of serving the water needs of the maximum
authorized development on the Property (including all commercial and
noncommercial development to be served by Marana), and (iii) designate
the point of interconnection referred to in Paragraph 2.6 hereof. A copy of
said approved On-Site Plans and Specifications for the Water Facilities is
attached as Exhibit "B."
(a) The Plans and Specifications shall include, at a minimum:
(i) Water Production Facilities. Developer shall convey to Marana
two (2) wells with a combined production capacity of not less
than two thousand (2000) gallons per minute, which Developer
warrants, equals, or exceeds the water production capacity
needed to serve the Property when fully developed. In the event
Developer's existing well(s) do not meet ADEQ's potable well
standards or provide insufficient production capacity, Developer
will drill one (1) or two (2) new well(s) to a depth mutually agreed
.....,.
L
?
2
Best Associates II, L.L.C. Water Service Agreement (Rev. 7 Dated 02-01-01)
upon in writing (currently estimated at 500 feet [500']), and at
least sixteen inches (16") in diameter as to such new well(s). In
any event, the well(s) to be conveyed to Marana shall be capable
of equaling or exceeding the production capacity specified
above.
(iii)
(ii) Interconnection. Developer shall design and construct at
Developer's own expense the eight-inch (8") water line and
appurtenant facilities necessary to interconnect the Water
System to the portion of the Marana Water System known as the
Happy Acres/Airline-Lambert System.
Storaqe and Fire Protection. One (1) storage tank of at least
one million four hundred thousand (1,400,000) gallons which
Developer warrants, equals, or exceeds the estimated water
usage of the Water System at the Property's build-out on the
hottest day of the summer, together with two (2) hours of fire
flow at one thousand five hundred (1500) gallons per minute, or
if Marana is to serve any commercial development on the
Property, then three (3) hours of fire flow at one thousand five
hundred (1500) gallons per minute. A portable self-contained
generator of sufficient size to operate the well and fire pump will
be installed to meet fire code requirements.
(b) Well and Water Qualitv TestinQ. Developer shall comply with Article
10, Chapter 2, Title 45, Arizona Revised Statutes governing well
drilling, such as securing permits, use of licensed well drillers, filing
well logs and meeting well standards. Developer shall perform well
testing conforming to the American Water Works Association
Standards (AWWA) for pump tests and shall conduct water quality
testing conforming to the standards of the Arizona Department of
Environmental Quality (ADEQ) and Pima County of Department of
Environmental Quality (PCDEQ) for quality certification of new
source wells.
(c) Phasinq. Developer and Marana recognize that not all Water
Facilities may be necessary to service the initial phases or phases of
the development proposed for the Property. Any phasing shall be
agreed to in writing and attached to this Agreement as Exhibit "C."
2.2 Plans and Specifications and Water Facilities Approval. The Plans and
Specifications for the Water Facilities shall be reviewed and approved in
writing by Marana, ADEQ and PCDEQ before issuance of any Water
Facilities construction permits by Marana. No work shall commence until
Marana has issued a Water Facilities construction permit. The water
production and storage facilities as specified in the Plans and
Specifications shall be (i) constructed, (ii) issued a certificate to operate by
ADEQ or PCDEQ, and (iii) accepted by Marana prior to Marana issuing
Developer a Certificate of Occupancy for any residential or commercial
unit, subject to the possibility of phasing as provided for in Paragraph
2.1 (c) above.
..
...
n
/
?
- :
3
Best Associates II, L.L.C. Water Service Agreement (Rev. 7 Dated 02-01-01)
2.3 Contractor. The Water Facilities shall be constructed by a contractor
properly licensed by the state of Arizona and in accordance with Plans
and Specifications prepared by a qualified registered professional
engineer. The location in the ground and manner of installation shall
comply with the requirements of all public agencies having authority to
prescribe regulations with respect to the location and manner of
installation.
2.4 Permits and Licenses. Applicant shall obtain all necessary permits and
licenses, pay all fees and comply with all laws, ordinances and regulations
related to the public health, safety, welfare and construction of the Water
System.
2.5 Materials, Workmanship, Equipment and Machinery. All materials shall
be new and both the workmanship and materials shall be of good quality
and shall meet the combined specifications and standards of (a) AWWA,
(b) ADEQ, (c) PCDEQ, (d) all applicable local regulatory agencies, and (e)
the plans and specifications incorporated herein by reference in Exhibit
"B." Developer shall repair, or remove and replace, at Developer's own
expense and at Marana's convenience, workmanship or materials which
do not meet the described criteria or which prove to be defective at any
time within one year from the date of the final acceptance of Applicant's
work by Marana.
2.6 Connectinq New Facilities. Upon completion by Developer and
acceptance by Marana, Developer will dedicate the Water Facilities and
Water System to Marana, without cost to Marana, and Marana shall
thereafter operate and maintain the Water Facilities as an integral part of
its municipal water utility. The Water Facilities constructed pursuant to
this Agreement shall provide a point of connection to Marana's existing
water facilities at the point directed by Marana for Service Area
requirements. After commencing water service to the Property, for the
purposes of this paragraph, the provisions of Marana Code 914-7 and any
successor or amendatory provisions are incorporated herein as though
set forth in full and Developer, except to the extent to do so would be
inconsistent with the provisions thereof, is deemed for the purposes
hereof to be the Applicant/Customer/Developer described therein.
2.7 Inspection, Testinq and Correction of Defects. Developer shall comply
with the inspection and testing requirements of ADEQ, PCDEQ, and
Marana for the facilities to be constructed hereunder, PROVIDED
HOWEVER, said requirements shall be reasonable and shall not cause
Developer unwarranted delays in the ordinary course of construction.
Developer shall promptly notify Marana when the Water Facilities under
construction are ready for inspection and testing; and upon 24 hours
written notice to Marana, Marana shall thereafter inspect the same
promptly after being so notified. For the purpose of inspection and testing
of everything covered by this Agreement, or performance of the Work
thereon (the "Work"), Developer shall give Marana and any inspectors
appointed by it, free access to the construction site and facilitate the
proper inspection of such materials, including procurement data, and shall
4
Best Associates II, L.L.C. Water Service Agreement (Rev. 7 Dated 02-01-01)
furnish them with full information whenever requested as to the progress
of the Work in its various stages. The approval of the Work by any such
inspector shall not relieve Developer from its obligation to comply in all
respects with the instructions and specifications to make the Work a
finished job of its kind, completed in accordance with the best practices.
Developer agrees that no inspection by or on behalf of Marana shall
relieve Developer from its obligation to do and complete the Work in
accordance with this Agreement. If at any time before the final completion
and acceptance of the Work, any part of the Work is found to be defective
in any way, or in any way fails to conform to this Agreement, Marana is
hereby expressly authorized to reject or revoke acceptance of such
defective or deficient Work and require Developer to repair, replace, or
make good on such defective Work. Marana specifically reserves the
right to withhold approval and to forbid connection of the Water Facilities
constructed pursuant to this Agreement to Marana's water utility system
unless such Water Facilities have been constructed in accordance with
the Plans and Specifications approved by Marana and are satisfactory to
Marana upon inspection and testing. Developer agrees that it will
promptly correct all defects and deficiencies in construction, materials,
and workmanship upon request by Marana made subsequent to
inspections by Marana.
2.8 Chanqe Orders. In the event that Developer makes (or is desirous of
making) any material changes to the design of the Water Facilities which
are to be constructed in accordance with the Water Plans referred to in
Exhibit "B" to this Agreement, Developer shall (a) obtain Marana's prior
written consent to such material changes or modifications, (b) pay to
Marana a reasonable fee for its time in reviewing such material changes
or modifications, and (c) pay the additional cost of construction associated
with the same, if any.
2.9 Invoices. Developer agrees to furnish Marana, within thirty (30) days after
completion of construction, copies of all Developer, subcontractor, vendor
and all others invoices for all engineering and other services, materials
purchased, materials installed, construction performed, equipment
provided and all else done directly in connection with construction
pursuant to this Agreement at the actual cost thereof.
2.10 Liens. Developer acknowledges its duty to obtain to the satisfaction of
Marana lien waivers and releases from all third parties providing labor,
materials or services hereunder. Developer hereby irrevocably waives
any rights it may now have or which it may acquire during the course of
this Agreement to record liens against Marana or its property. Developer
shall also pay, satisfy and discharge all mechanics', material men's and
other liens, and all claims, obligations and liabilities which may be
asserted against Marana or its property by reason of, or as a result of, any
acts or omissions of Developer, its employees, agents, servants,
suppliers, or subcontractors, or the employees, agents, servants or
suppliers of its subcontractors, in connection with or relating to the
performance of this Agreement.
i
5
Best Associates II, L.L.C. Water Service Agreement (Rev. 7 Dated 02-01-01)
2.11 "As-Built" Plans. Developer agrees to furnish Marana, within thirty (30)
days after completion of construction, "as-built" drawings in both
handwritten and electronic format certified as to correctness by an
engineer registered in the State of Arizona showing the locations of all
water mains, hydrants, valves, and service connections to all structures
served from facilities constructed pursuant to this Agreement.
2.12 Risk. Developer shall carry on all activities associated with or comprising
the Work required hereunder at its own risk until the Water Facilities are
fully completed and accepted by Marana and will, in case of accident,
destruction or injury to the Water Facilities before such final completion
and acceptance of the Water Facilities, replace or repair forthwith the
Water Facilities so injured, damaged or destroyed, to the satisfaction of
Marana and at Developer's own expense.
2.13 Liabilitv. Developer hereby assumes all of the responsibility and liability
for injury or death of any person, or loss for damage to any property
contributed to or caused by the active or passive negligence of Applicant!
Developer, its agents, servants or employees in the execution of and
performance of the activities and Work contemplated herein or in
connection therewith. Accordingly, Developer will indemnify, appear and
defend and hold Marana, and its elected officials, employees, agents and
consultants (the "Town") harmless from and against claims, (except and to
the extent that the same are caused or contributed to by the Town) or
expenses, including penalties and assessments, to which they or any of
them may be subject to by reason of such injury, death, loss, claim,
penalty, assessment or damage, and in case any suit or other proceeding
which shall be brought on account thereof, Developer will assume the
defense of the Town at Developer's expense and will pay all judgments
rendered therein.
(a) Marana hereby assumes all of the responsibility and liability for injury
or death of any person, or loss for damage to any property
contributed to or caused by the active or passive negligence of the
Town caused by interconnecting the Water Facilities to any off-site
water facilities by Marana, and, in that event, Marana will indemnify,
appear and defend and hold Developer harmless from and against
claims, (except and to the extent that the same is caused or
contributed to by Developer, its employees, agents and consultants)
or expenses, including penalties and assessments, to which they or
any of them may be subject to by reason of such injury, death, loss,
claim, penalty, assessment or damage, and in case any suit or other
proceeding which shall be brought on account thereof, will pay all
judgments rendered therein.
2.14 Insurance. Developer agrees to procure and maintain all of the insurance
policies described below and cause Marana to be endorsed as an
"additional insured" thereon, including insurance covering the obligations
assumed by Developer under subparagraphs (a), (b) and (c) hereof.
Such coverages shall be in amounts adequate to cover the risk
commensurate with the work to be performed under this Agreement.
-4
;2
=::=
6
Best Associates II, L.L.C. Water Service Agreement (Rev. 7 Dated 02-01-01)
Certificates evidencing said insurance and status of Marana shall be
provided to Marana.
(a)
Workers' Compensation Insurance. Worker's compensation and
occupational disease and disability compensation in the benefit
amounts as required by the laws and regulations of the State of
Arizona;
Liability Insurance. Comprehensive general liability insurance,
including operations and protective liability coverages. When the
work to be performed requires blasting, Developer's insurance shall
specifically cover that risk; and
Automobile Insurance. Comprehensive automobile liability
insurance covering all owned and non-owned automobiles and
trucks used by or on behalf of Developer, in connection with the
work.
(b)
(c)
2.15 Easements. For the purposes of this paragraph, the provisions of Marana
Code 914-3-7 and any successor or amendatory provisions are
incorporated herein as though set forth in full and Developer, except to the
extent to do so would be inconsistent with the provisions thereof, is
deemed for the purposes hereof to be the Applicant/Customer/Developer
described therein. Developer shall provide to Marana recordable
easements and required surveying, over, under, and across all portions of
the main and pipeline routes as may be necessary to serve each parcel or
lot within the Property. If development of the Property involves road
construction, all roads and drainage ways will be brought to grade by
Developer prior to the commencement of the installation of the Water
Facilities. No pavement or curbs shall be installed prior to completion of
the Water Facilities.
2.16 Service Lines. Valves. Meters and Meter Service. Developer shall install,
to Marana specifications, automated meters, sensors, and the other
necessary equipment for automated meter reading for all water services
on the Property. For the purposes of this paragraph, the provisions of
Marana Code 914-3-6 and any successor or amendatory provisions are
incorporated herein as though set forth in full and Developer, except to the
extent to do so would be inconsistent with the provisions thereof, is
deemed for the purposes hereof to be the Applicant/Customer/Developer
described therein. Provided that Developer is in compliance with this
agreement, Marana agrees to waive any water connection or meter
installation fees for new connections within the Property.
2.17 No Permanent Structures on Easements. No permanent structures (Le.,
masonry walls, fences, etc.) shall be constructed on or through a water
easement without the express written consent of Marana. For the
purposes of this paragraph, the provisions of Marana Code 914-3-7 and
any successor or amendatory provisions are incorporated herein as
though set forth in full and Developer, except to the extent to do so would
...
......
z
Best Associates II, L.L.C. Water Service Agreement (Rev. 7 Dated 02-01-01)
7
be inconsistent with the provisions thereof, is deemed for the purposes
hereof to be the Applicant/Customer/Developer described therein.
2.18 Title. All materials installed, Water Facilities constructed and equipment
provided by Developer in connection with construction of the Water
Facilities under this Agreement and the completed facilities as installed
shall, upon Marana's written acceptance of the same, become the sole
property of Marana, and full legal and equitable title thereto shall then be
vested in Marana, free and clear of any liens, without the requirement of
any written document of transfer to Marana or further acceptance by
Marana. Developer agrees to execute or cause to be executed promptly
such documents as legal counsel for Marana may request to evidence
such conveyance of good and merchantable title to said Water Facilities
free and clear of all liens.
3. COSTS OF CONSTRUCTION OF WATER FACILITIES
,3.1 Developer shall, at Developer's sole cost and expense, install all the
Water Facilities shown on the approved Plans and Specifications, and
shall hold Marana free and harmless from any claim for the construction
costs or any defects in such Water Facilities. For the purposes of this
paragraph, the provisions of Marana Code S14-4 and S14-5 and any
successor or amendatory provisions are incorporated herein as though
set forth in full and Developer, except to the extent to do so would be
inconsistent with the provisions thereof, is deemed for the purposes
hereof to be the Applicant/Customer/Developer described therein.
3.2 Upon request by Marana and direction, Developer shall, at Developer's
sole cost and expense, make any and all alterations to any existing water
distribution system, either on-site or off-site, necessitated by paving,
drainage, or other improvements caused by the development of the
Property.
3.3 The Water Facilities shall be transferred to the ownership of Marana upon
completion and acceptance by Marana. Developer shall be responsible
for all costs of operating, repairing, replacing and maintaining the Water
Facilities that exceed the revenues generated through Marana's provision
of water service to the Property, until a rate analysis methodology has
been adopted, mutually accepted, and performed by Marana showing that
the Water Facilities and Water System are financially self-sustaining.
Marana shall perform such analysis not less than annually and inform
Developer regarding the results thereof.
3.4 Marana shall collect connection charges and installation charges for each
connection made on the Property in accordance with Marana Town Code,
Paragraph 14-7-2, as amended from time to time. In consideration of
Developer's construction of the Water Facilities and Water System
necessary for Marana to provide water service to the Property, Marana
will reimburse Developer a portion of the connection charges actually
collected by Marana for each initial connection within the Property as
follows:
'"
,
: :
r
8
Best Associates II, L.L.C. Water Service Agreement (Rev. 7 Dated 02-01-01)
(a)
(b)
(c)
(d)
Five Hundred Dollars ($500) for each 5/8"x 3/4" meter and larger
size meters up to and including two-inch (2") meters;
The connection charge actually collected by Marana for each meter
larger than two inches (2"), less costs incurred by Marana in
making the connection (such as meter cost, labor, materials, etc.)
but not included within a separate installation charge actually
collected by Marana for the installation of the connection.
In no event shall this reimbursement obligation (i) apply to any
installation and connection fee collected during any period which
Developer is in breach of this Agreement, (ii) exceed a cumulative
amount of One Million Four Hundred Fifty Thousand Dollars
($1,450,000) or (iii) exceed the amount actually paid to Marana as
connection charges, less any cost actually expended by Marana for
materials and labor (e.g., the cost of the meter, labor, materials,
etc.) above installation charges actually collected by Marana as a
condition to Marana making water service available for the first time
to the property line of each parcel for which the connection charges
were paid.
Marana shall make reimbursement payments due to Developer
pursuant to this Subparagraph 3.4 on or before January 31 and
July 31 of each year for the preceding period ending December 31
and June 30 respectively. The agreement to ma~e
reimbursements will automatically terminate on the tenth (10t)
anniversary of this Agreement, subject to the continuing obligation
to pay to Developer any reimbursements accrued, but unpaid, as of
the tenth (10th) anniversary.
4. SECURITY REQUIREMENT
4.1 In accordance with Arizona Revised Statutes and the Marana Municipal
Code, this Agreement is contingent upon Developer furnishing Marana
with such security as may be appropriate and necessary, as determined
by the Marana Utility Director, to assure Marana that Developer will
perform all the Water Facilities and Water System construction described
above and all other obligations now existing or accruing under this
Agreement.
5. WATER SERVICE; WATER RIGHT
5.1 For the purposes of this paragraph, the provisions of Marana Code 914-5
and any successor or amendatory provisions are incorporated herein as
though set forth in full and Developer, except to the extent to do so would
be inconsistent with the provisions thereof, is deemed for the purposes
hereof to be the Applicant/Customer/Developer described therein.
Marana shall be under no obligation to provide water utility service to
Developer or the Property until each and every condition of this
Agreement has been met and satisfied. Marana agrees that upon receipt
of all applicable approvals and satisfaction of all of Developer's obligations
?
Best Associates II, L.L.C. Water Service Agreement (Rev. 7 Dated 02-01-01)
9
under this Agreement that it will then provide water utility service as
requested to and within the Property in accordance with its rules,
regulations and ordinances governing such water service, as such rules,
regulations and ordinances may, from time to time, be amended.
Commencement of service to the Property by Marana shall not waive any
obligation of Developer under this Agreement nor preclude Marana from
withholding or terminating water service to Developer, the Property or any
portion thereof until the Developer is in full compliance with this
Agreement.
5.2 Developer agrees to assign to Marana, as a condition of Marana providing
water utility service, every portion of its Irrigation and Type 1 Nonirrigation
Grandfathered Groundwater Rights, as those terms are defined by law, as
may be appurtenant to lands conveyed and dedicated to Marana in
connection with the development of the Property. Developer agrees to
execute and deliver all forms necessary to effect the transfer of these
water rights to Marana concurrently with such dedication.
5.3 Marana will provide the State of Arizona Designation of Assured Water
Supply status for the Property upon acceptance of the Property into
Marana's service area by the Central Arizona Groundwater
Replenishment District (CAGRD). Developer shall execute any
agreements and file such covenants and restrictions as Marana may
deem appropriate to include the Property in Marana's CAGRD service
area. Without limiting in any manner Marana's right to specify the terms
and conditions governing future water service to the Property, but, as a
condition precedent to the Property's right to receive water service from
Marana, the owner(s) of the Property shall pay all groundwater
replenishment fees and costs incurred in providing water service to the
Property. Marana, in its sole discretion, may determine the method of
recovering such replenishment fees and costs including, without limitation,
through the property tax bill, the water bills, and/or the impact fees of
those customers living within the Property.
6. TERMINATION OF AGREEMENT
6.1 In the event Developer does not complete all of the Water Facilities and
Water System construction described in Article 2, within three (3) years
from the date of this Agreement, except as otherwise agreed on Exhibit
"C" hereof, this Agreement shall be null and void, canceled and of no
further force and effect, except to the extent Marana in its sole discretion
either (i) extends this time period in writing or (ii) accepts all or a portion of
the Water Facilities, in which case this Agreement shall remain in full
force and effect for the extension period or as to the Water Facilities
accepted by the Town; provided, however, no reimbursements will be paid
pursuant to Subparagraph 3.4 hereof for connections made during such
extension period.
1
6.2 Pursuant to A.R.S. 938-511, Marana may cancel this contract within three
(3) years after its execution, without penalty or further obligation if any
person significantly involved in initiating, securing, drafting or creating this
:2
,-"
5L?
10
Best Associates II, L.L.C. Water Service Agreement (Rev. 7 Dated 02-01-01)
Agreement on behalf of Marana is, at any time while this Agreement or
any extension of this Agreement is in effect, an employee or agent of
Developer in any capacity or consultant to Developer with respect to the
subject matter of this Agreement. Cancellation under this Paragraph by
Marana shall be effective when written notice from Marana is received by
Developer unless the notice specifies a later time. In addition to the right
to cancel as provided herein, Marana may recoup any fee or commission
paid or due to any person significantly involved in initiating, negotiating,
securing, drafting or creating this Agreement on behalf of Marana from
Developer arising as the result of this Agreement.
7. INDEMNIFICATION
7.1 With respect to the Water Facilities and Water System constructed
pursuant to this Agreement, for a period of one (1) year following
Marana's acceptance of the facilities to be dedicated to Marana
hereunder, Developer agrees to indemnify, appear, defend and hold
harmless Marana and its employees (as previously defined) from any and
all claims or causes of action which may be asserted against Marana for
negligent design or construction of the Water Facilities, and from claims
that may be asserted against Marana for inadequate fire protection
capacity arising from the negligence of Developer or its employees or
agents.
NOTICE
7.2 Communications hereunder shall be sent to the parties at the following
addresses or to such other addresses as the parties may advise in writing:
To Marana:
With copy to:
and copy to:
To Applicant:
Utilities Director
Town of Marana Water Department
12775 North Sanders Road
Marana, Arizona 85653-9723
Mr. Dan Hochuli, Esq.
Town Attorney
220 East Wetmore Road, Suite 110
Tucson, Arizona 85705
Martinez & Curtis, P.C.
Attn: William P. Sullivan
2712 N. 7th Street
Phoenix, Arizona 85006-1090
Best Associates II, L.L.C.
Attn : Tom Barr
5120 West Via Mallorca
Tucson, Arizona 85745
8
,
"-
Best Associates II, L.L.C. Water Service Agreement (Rev. 7 Dated 02-01-01)
11
With a copy to:
Lawrence V. Robertson, Jr.
Munger Chadwick, P.L.C.
National Bank Plaza
333 North Wilmot, Suite 300
Tucson, Arizona 85711
8. SEVERABILITY
8.1 In the event any portion of this Agreement shall be determined to be
invalid, such invalidity shall not render void any remaining portions of this
Agreement, which can be given effect, and they shall remain in force and
effect.
9. ASSIGNMENT
9.1 This Agreement shall be binding upon and for the benefit of the heirs,
administrators, executors, successors and assigns of Marana and
Developer.
10. MISCELLANEOUS
11.1 This instrument (i) implements Paragraph 2.3 of the Development
Agreement between Marana and Best Associates II, L.L.C., an Arizona
limited liability company, dated May 14, 1998 (and the "Development
Agreement"), (ii) contains the sole and only agreement of the parties
relating to the subject matter of this Agreement, and (iii) correctly sets
forth the rights, duties and obligations of each to the other as of its date.
Any prior agreements, promises, negotiations or representations relating
to the subject matter of this Agreement not expressly set forth in this
Agreement are of no force and effect. This instrument contains the entire
agreement between the parties, and it shall not be amended, altered or
changed, except by written agreement signed by the parties.
11.2 All executed agreements shall remain on file in Marana offices and shall
be made available for public review upon request.
11.3 This Agreement is entered into under and shall be governed by the laws
of the State of Arizona.
11.4 This Agreement has been arrived at by negotiation and shall not be
construed against any party to it or against the party who prepared the last
draft.
?
11.5 Captions and headings are for index purposes only and shall not be used
on construing this Agreement.
11.6 BEFORE THIS AGREEMENT SHALL BECOME EFFECTIVE AND
BINDING UPON EITHER MARANA OR DEVELOPER, IT MUST BE
APPROVED BY THE MAYOR AND COUNCIL OF THE TOWN OF
2'
8
2
12
Best Associates II, L.L.C. Water Service Agreement (Rev. 7 Dated 02-01-01)
MARANA. In the event that it is not so approved, this Agreement shall be
null and void and of no force or effect whatsoever. The remedies
provided in this Agreement in favor of Marana shall not be deemed its
exclusive remedies but shall be in addition to all other remedies available
to the Parties at law or in equity. No waiver by Marana of any breach by
Developer of any provision of this Agreement nor any failure by Marana to
insist on strict performance by Developer of any provision of this
Agreement shall in any way be construed to be a waiver of any future or
subsequent breach by Developer or bar the right of Marana to insist on
strict performance by Developer of the provisions of this Agreement in the
future. Developer is an independent contractor and not an agent or
employee of Marana.
11.7 This Agreement, and all rights and obligations hereunder, including those
regarding water service to Developer, shall be subject to all provisions of
the Municipal Code of the Town of Marana and all applicable rates, fees,
charges and tariffs of the Marana Water Utility as approved by the Mayor
and Council of the Town of Marana now or as they may be changed and
approved by the Mayor and Council of the Town of Marana in the future.
IN WITNESS WHEREOF, the parties have hereunto set their hands the day and
year first above written.
TOWN OF MARAN A
BY:~
.?-~
Its: ~
APPROVED AS TO FORM
ATTEST:
s Town Attorney and not personally
~.
DEVELOPER
3e.st AS50C:\~+es IT LL-.C.
~\"''''''''''
~ OF ~~
~~~ ~''''''I.~ ~
::: f) t.QI\PORATE ::
-.- CICIO _
- -
i SEAL S
~ :!!Ii
iSJ ""~~ ~
..1fi1z. '\f&J,\~
4'tlIIUI\\\'-
~it.6-J
(J
Its: 'JIt(?~
J
13
Best Associates II, L.L.C. Water Service Agreement (Rev. 7 Dated 02-01-01)
ACKNOWLEDGMENT
8T A TE OF ARIZONA )
) ss.
COUNTY OF )
This instrument was acknowledged before me this day of Ie< day of FE/3RtI/4Il.j
,2001, by 7YU)M4.S Ra.t''' as II M.Bmbe~
of ~T ItSSd~/aJ.~.s ~ Lt~ as Developer.
My Commission Expires:
~bli~
NOTARY PUBLIC
STATE OF ARIZONA
County 01 Pima
DIANE MANGIALARDI
My Appointment ExpIl'es 03-17-04
14
Best Associates II, L.L.C. Water Service Agreement (Rev. 7 Dated 02-01-01)
EXHIBIT "A"
LOCATION MAP OF THE DEVELOPMENT
WITH LEGAL DESCRIPTION
[Please attach the location map of the development behind this cover sheet.]
15
Best Associates II, L.L.C. Water Service Agreement (Rev. 7 Dated 02-01-01)
N
~.
(/)CI\
"'....
u< .
-C...J~
,.LA,.......
13 18
24 19
lItf", Pc.
4Jrs RD.
LOCATION MAP
SECTION 18 AND PORTIONS OF
SECTIONS 17 AND 19,
T-12-S, R-12-E,
G. & S. R. M.
PIMA COUNTY, ARIZONA
SCALE: 3"=1 MILE
11-
_ Urban
~ _ Engineering
Planning Aviation 877 8. Alvernon Wa,
EngIneering environmental Tucaon. AZ 85711
S..-ve,lng Tranaportetlon 520.318.3800
18 17
19 20
1
.it
9
"-
;....=
=-=
December 18,2001
DIE Project No. 96103
Sheet 1 of3
PROPERTY DESCRIPTION
All that portion of Sections 17, 18 and 19 of Township 12 South, Range 12 East, Gila and
Salt River Meridian, Pima County, Arizona, more particularly described as follows:
BEGINNING at the Northwest comer of said Section 18;
THENCE along the North line of said Section 18, North 890 47' 51" East, a distance of
2525.55 feet to the North one quarter of said Section 18;
THENCE continuing along said North line of Section 18, North 890 45' 48" East, a
distance of2640.93 feet, to the section comer common to Sections 7,8, 17 and 18;
THENCE along the North Line Section 17, North 890 47' 29" East, a distance of 1320.67
feet to the Northeast comer of the Northeast quarter of the Northeast quarter of said
Section 17;
THENCE along the east line of said Northwest quarter of the Northwest quarter of
Section 17, South 000 04' 21" East, a distance of 1321.45 feet to the Southeast comer of
said Northwest quarter of the Northwest quarter;
THENCE along the South line of said Northwest quarter of the Northwest quarter, South
890 46' 49" West, a distance of 489.36 feet;
THENCE North 150 13' 00" West, a distance of 510.00 feet;
THENCE North 890 46' 49" West, a distance of265.27 feet;
THENCE South 150 13' 00" East, a distance of 510.00 feet, to a point on said South line
of the Northwest quarter of the Northwest quarter;
THENCE along said South line North 890 46' 49" East, a distance of99.11 feet;
THENCE South 080 23' 07" East, a distance of 124.19 feet;
-4
THENCE South 020 50' 07" West, a distance of201.36 feet;
THENCE South 08009' 26" East, a distance of212.13 feet;
, .
"'-
?
THENCE South 12058' 03" West, a distance of 133.42 feet;
C:\Crystal\1996\96103 - Saguaro Springs\1cgals\Propcrty Description 12.18-Ol.doc
December 18~ 2001
UIE Project No. 96103
Sheet 2 of 3
THENCE South 49037' 38" East~ a distance of 123.43 feet;
THENCE South 00001' 38" East~ a distance of220.00 feet;
THENCE South 32003' 11" Eas4 a distance of 421.10 feet;
THENCE North 890 47' 51" Eas4 a distance of53.49 feet;
THENCE South 19035' 39" East, a distance of 107.58 feet;
THENCE South 040 13' 43" West, a distance of 392.42 feet;
THENCE South 000 37' 37" East, distance of 458.03 feet;
THENCE South 41 0 19~ 49" East, distance of 196.51 feet;
THENCE South 200 04' 22" West, a distance of 137.71 feet;
THENCE South 140 17' 07" East, a distance of397.63 feet;
THENCE South 430 02~ 22" East, a distance of520.75 feet;
THENCE South 11044' 51" East, a distance of281.91 feet;
THENCE South 130 29' 46" West, a distance of 367.26 to a point on the South line of
Section 17;
THENCE along said South line of Section 17, South 890 33' 58" West, a distance of
1553.53 feet to the Section comer to Section 17~ 18, 19 and 20;
THENCE along the east line of said Section 19, South 000 11 ~ 13" East, a distance of
995.54 feet to a point on the North right-of-way of Twin Peaks Road, as recorded in Book
2 at Page 151 of Road Maps;
i
...
THENCE along said North right-of-way North 72023' 10" West, a distance of3180.37
feet, to a point on the West line of the East half of the East half of the East half of the
Northwest quarter of said Section 19;
.:
,
~
THENCE along said West line North 010 32' 29" East, a distance of 49.14 feet to the
common line of said Sections 18 and 19;
C:\Crystal\1996\96103 - Saguaro Springs\legals\Property Description 12.1S-01.doc
December 18, 2001
UIE Project No. 96103
Sheet 3 of 3
THENCE along said common line South 890 50' 50" West, a distance of 168.25 feet to a
non-tangent point on a curve having a radius of 1176.28 feet and a central angle of 170
46' 00" whose radial line bears North 17036' 50" East, said point also being on the said
North right-of-way of Twin Peaks Road;
THENCE along said North right-of-way and the arc of said curve to the left an arc
distance of364.75 feet, to a point of tangent;
THENCE continuing along said North right-of-way, being a line 30 feet North of and
parallel to said common line of Section 18 and 19, South 89050' 50" West, a distance of
1777.09 feet to the West line of said Section 18;
THENCE along said West line North 00008' OS" West, a distance of2610.81 feet to the
West quarter comer of said Section 18;
THENCE continuing along said West line, North 00006' 47" West, a distance of2642.14
feet to the Northwest comer of said Section 18, being the POINT OF BEGINNING;
Except a strip of land 100 feet in width through said Section 18, more particularly
described as follows:
COMMENCING at the West quarter comer of said Section 18;
THENCE along the West line of said Section 18, South 000 08'05" East, a distance of
798.55 feet to the POINT OF BEGINNING;
THENCE North 380 23' 46" East, a distance of 4402.63 feet to a point on the North line
of said Section 18;
THENCE along said North line North 890 45' 48" East, a distance of 128.01 feet;
THENCE South 380 23' 46" West, a distance of 4608.12 feet, to a point on said West line
of Section 18;
THENCE along said West line North 000 08' OS" West, a distance of 160.53 feet to the
POINT OF BEGINNING;
Said parcel contains 787.14 acres more or less.
=""'J:
L
: :
....
Prepared by:
: :
9
URBAN ENGINEERING, INC.
C:\Crystal\1996\96103 - Saguaro Springs\lcgals\Property Description 12-18-01.doc
EXHIBIT "B"
INCORPORATION BY REFERENCE OF THE
PLANS AND SPECIFICATIONS OF THE
WATER UTILITY FACILITIES TO BE CONSTRUCTED HEREUNDER
Reference is hereby made to those certain 24" X 36" engineering drawings of the Water
Facilities Plans. Copies of such engineering drawings may be reviewed at Marana's
offices. Such engineering drawings may be more specifically described as follows:
[Please provide a detailed description of the Plans and Specifications including the date
and the code number of the Plans and the name of the Engineering firm, which
prepared the same.]
:-..
...
o
16
Best Associates II, L.L.C. Water Service Agreement (Rev. 7 Dated 02-01-01)
EXHIBIT "B"
INCORPORATION BY REFERENCE OF THE
PLANS AND SPECIFICATIONS OF THE
WATER UTILITY FACILITIES TO BE CONSTRUCTED HEREUNDER
1
4
.z-
EXHIBIT "e"
PHASING ON-SITE WATER DISTRIBUTION SYSTEM
, ,
-"
L
,.....
17
Best Associates II, L.L.C. Water Service Agreement (Rev. 7 Dated 02-01-01)
PHASING PLAN
The water system as per the attached engineering plans will be constructed in one phase.
, ,
L
9
EXHIBIT "D"
ITEMIZED BREAKDOWN OF THE ESTIMATED COST OF THE
WATER UTILITY FACILITIES TO BE CONSTRUCTED HEREUNDER
[Please attach a line-by-Iine itemized breakdown of
the Estimated Cost of the Water Utility Facilities
to be installed in accordance with this Agreement
behind this cover sheet]
Please set forth the total expense the Developer/Applicant is to incur for the construction.
'"
,
W~.f
'"
.,.
18
Best Associates II, L.L.C. Water Service Agreement (Rev. 7 Dated 02-01-01)
SAGUARO SPRINGS WATER SYSTEM
Water
l. 12" CL350 DIP 163 LF @ $ 85.65 = $ 13,960.95
2. 12" CL 200 C 900 3329LF @ 32.45 = 108,026.05
3. 8" CL 200 C 900 11849 LF @ 16.80 = 199,063.20
4. 8" CL 350 DIP 147 LF @ 39.40 = 5,791.80
5. 6" CL 200 C 900 105 LF @ 14.65 = 1,538.25
6. 12" Valve, Box and Cover 9EA@ 1,125.00 = 10,125.00
7. 8" Valve, Box and Cover 47 EA @ 525.00 = 24,675.00
8. 6" Valve, Box and Cover 10 EA @ 415.00 = 4,150.00
9. 2" Drain Valve Assembly 22 EA @ 385.00 = 8,470.00
10. Fire Hydrant 6EA@ 1,760.00 = 10,560.00
11. 1" Double Service 4EA@ 580.00 = 2,320.00
12. %" Double Service 3EA@ 445.00 = 1,335.00
Subtotal- Water
$
390,015.25
Water Well System and Storage Tank
North Well Site
l. Install 250 HP Pump and Liner 1 LS@ $ 81,200.00 = 81,200.00
2. Tank, Steel Piping, Chlorinator 1 LS@ 52,230.00 = 52,230.00
3. Fence wi Gates 1 LS@ 17,065.00 = 17,065.00
4. 5000 Gallon Hydropneumatic Tank 1 LS@ 12,585.00 = 12,585.00
5. 2" Gravel Surface 250 SY @ 11.05 = 2,762.50
6. Electrical 1 LS@ 47,245.00 = 47,245.00
7. Painting 1 LS@ 16,675.00 = 16,675.00
Subtotal-North Well Site
$ 229,762.50
7.
2
.
::::?
Well Booster and Storage Tank
1. 2" Gravel Surface 3200 SY @ $ 11.05 = 35,360.00
2. Masonry Screen Wall 800 LF @ 77.00 = 61,600.00
3. Gate lEA@ 1,680.00 = 1,680.00
4. New Well, Pump 1 LS@ 186,865.00 = 186,865.00
5. Booster Pump, 30 HP lEA@ 4,095.00 = 4,095.00
6. Booster Pump, 40 HP 1 EA@ 4,320.00 = 4,320.00
7. Booster Pump, 40 HP 2EA@ 5,840.00 = 11,680.00
8. 1.36 Million Gallon Storage Tank 1 EA@ 255,680.00 = 255,680.00
9. 5000 Gallon Hydropneumatic 2EA@ 9,830.00 = 19,660.00
Tank
10. Air Compressor and Piping 1 LS@ 3,740.00 = 3,740.00
11. Above Ground Steel Piping 1 LS@ 83,605.00 = 83,605.00
12. Below Ground Piping 1 LS@ 34,130.00 = 34,130.00
13. Chlorinator and Piping 1 LS@ 26,900.00 = 26,900.00
14. Electrical and Portable Generator 1 LS@ 222,330.00 = 222,330.00
15. Instrumentation 1 LS@ 14,065.00 = 14,065.00
16. TEP Plans (Budget Only) 1 LS@ 16,675.00 = 16,675.00
17. Painting 1 LS@ 111,165.00 = 111,165.00
18. Testing and Disinfection 1 LS@ 11,120.00 = 11,120.00
Subtotal-Well Booster and Storage Tank
$ 1,104,670.00
$ 1,724,447.75
Estimated Total Construction Cost
].
1
EXHIBIT "E"
ACTUAL COST OF WATER FACILITIES
[To be Attached Forthwith Upon Issuance of Same.]
Please set forth the total expense the Developer/Applicant is to incur for the construction.
THIS AGREEMENT Will BE RE-RECORDED WHEN ACTUAL COSTS ARE MADE AVAilABLE.
...
:,
L
L
=,:-l
19
Best Associates II, L.L.C. Water Service Agreement (Rev. 7 Dated 02-01-01)