HomeMy WebLinkAboutResolution 2000-044 agreement for construction of water faciities for continental reserveMARANA RESOLUTION NO. 2000-44
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 DIAMOND VENTURES, INC., AN ARIZONA CORPORATION,
AND CONTINENTAL RESERVE, L.L.C., A LIMITED LIABILITY CORPORATON FOR
CONSTRUCTON OF WATER FACILITIES AND PROVISION OF WATER UTILITY SERVICE.
WHEREAS, Diamond Ventures, Inc., and Continental Reserve, L.L.C., intend to facilitate
the development of that certain property to be called Continental Reserve, more specifically
described within Exhibit "1," an Agreement for Construction of Water Facilities and Provision of
Water Utility Service between the Town of Marana, Diamond Ventures, Inc., and Continental
Reserve, L.L.C. (the "Agreement"); and
WHEREAS, Diamond Ventures, Inc., and Continental Reserve, L.L.C., are desirous of
arranging for the provision of water service to and within the Property in connection with
Development thereof; and
WHEREAS, it is anticipated that home builders to whom Developer sells portions of the
Property for final development will also enter into the Agreements with Marana in satisfaction of
their respective needs; 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, Diamond Ventures, Inc., and Continental Reserve, L.L.C., agree to the
construction of water facilities within Continental Reserve; and
WHEREAS, the Town of Marana, agrees to provide water service to the Continental Reserve
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.
Marana, Arizona Resolution No. 2000-44 Page 1 of 2
NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the Town of
Marana, Arizona, accepting and authorizing the approval of the Agreement between the Town of
Marana and Diamond Ventures, Inc., an Arizona Corporation, and Continental Reserve, 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
18th day of April, 2000.
ATTEST:
q---~Jocel~. Entz Town Clerk
APPROVED AS TO FORM:
Mayor ]~YtflUTTON,
As Town Attomey
and not personally
Marana, Arizona Resolution No. 2000-44 Page 2 of 2
.J.f~'
F. ANN RODRIGUE RECORDER
RECORDED BY: HEM
DEPUTY RECORDER
2057 ROOD
"-
00\ ~: 11282
PAGE: 231
NO. OF PAGES: 18
SEQUENCE: 20000780073
04/21/2000
AG 10:20
SMARA
TOWN OF MARANA
ATTN: TOWN CLERK
13251 N LON ADAMS RD
MARANA AZ 85653
MAIL
AMOUNT PAID $ 14.50
TOWN OF MARANA
AGREEMENT FOR CONSTRUCTION
OF WATER FACILITIES
AND PROVISION OF WATER UTILITY SERVICE
THIS AGREEMENT EOR CONSTRUCTION OF WATER FACILITIES, entered into as
of the .1-.&fti... day ~ ,2000, by and between the TOWN OF MARAN A,
ARIZONA, an Arizona unicipal corporation, (hereinafter referred to as "Maran a") and
Diamond Ventures, Inc., an Arizona Corporation, and Continental Reserve, 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 of Arizona, and (ii) is in the process of acquiring the Property which is the subject
of this Agreement; and
WHEREAS, Developer intends to facilitate the development of the Property as a
Master Developer by means of sales of portions thereof to other developers who will
ultimately develop the same as their respective projects; and
WHEREAS, Developer intends to construct certain infrastructure improvements
to and within the Property prior to the sale of said portions to such other developers,
said improvements including certain water production and delivery system facilities;
and
WHEREAS, Developer is desirous of arranging for the provision of water service
to and within the Property in connection with Development thereof; and
WHEREAS, it is anticipated that home builders to whom Developer sells
portions of the Property for final development will also enter into water service
agreements with Marana in satisfaction of their respective needs; 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
this Agreement.
1
o
-....
-...
COVENANTS
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:
1. DEFINITIONS
1.1 Applicant or Developer: Diamond Ventures, Inc. or Continental Reserve
L.L.C. and its successors and assigns. '
18
1.2 Property: That certain property or real estate development known as
Continental Reserve 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.
2. CONSTRUCTION OF WATER FACILITIES
2.1 Marana has filed an Application with ADWR requesting the issuance of a
well drilling permit in connection with the extension of its municipal water
service to the Property.
2.2 Developer will pay all costs, if any, reasonably incurred by Marana
necessary for Marana to establish a "service area" ground water
withdrawal rights pursuant to ARS 945-491 et seq. Such costs shall
include the cost of any filings Marana may be required to make with
ADWR, and the cost of leasing such Type 2 Grandfathered Groundwater
Rights as may be necessary in order to satisfy the water requirements of
the Property during the "service area" right establishment period provided
for under ADWR's regulations and policies.
2.3 Plans and Specifications. Testina and Phasina. 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 2.8 hereof. A copy of
said approved On-Site Plans and Specifications for the Water Facilities is
attached as Exhibit "B."
.i-
1
(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 one thousand one hundred (1100) gallons per
minute which Developer warrants, equals, or exceeds the water
production capacity needed to serve the Property when fully
developed. Developer will drill two (2) new wells to a depth
2
8
.:t:..
mutually agreed upon in writing (currently estimated at 500 feet
[500']), and at least sixteen inches (16") in diameter. In any
event, the wells to be conveyed to Marana shall be capable of
equaling or exceeding the production capacity specified above.
(ii) Interconnection. Developer shall design and construct at
Developer's own expense the eight-inch (8") water line and
appurtenant facilities necessary to interconnect Continental
Reserve to the Town of Marana's Picture Rocks System.
Storaoe: Developer shall construct two (2) storage tanks. The
initial tank shall be at least one million (1,000,000) gallons
capacity; the second tank shall be of sufficient capacity to meet
the balance of the peak day water requirements of the Property
when fully developed. In addition, each tank shall be designed
and constructed to provide two (2) hours of fire flow at one
thousand (1000) gallons per minute or, if Marana is to serve
any commercial development on the Property, three (3) hours of
fire flow at one thousand five hundred (1500) gallons per
minute, as to the demand it is intended to serve and meeting
Northwest Fire Department requirements.
(iii)
(b)
Well and Water Quality Testino. 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.
Phasino. Developer and Marana recognize that not all Water
Facilities may be necessary to service the initial phase(s) of the
development proposed for the Property. Any phasing shall be
agreed to in writing and attached to this Agreement as Exhibit "C."
(d) Dual-Purpose Well. Dual-Purpose Pumpino. In the event Marana
and Developer decide to use a water production facility as a
common source of supply for both Marana's municipal water system
and other usage required to be developed, such water production
facility shall include two (2) wells and shall be metered in such a
manner as to enable Marana and Developer to identify the volumes
of water pumped for Marana's use and other use respectively. 1
(c)
2.4 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 a Building Permit for any residential or commercial unit, subject to
the possibility of phasing as provided for in Section 2.1 (c) above.
3
--,.
. .
z
=3
2.5 Contractor. The Water Facilities shall be constructed by a contractor
properly licensed or qualified 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.
2.6 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.
2.7 Materials. Workmanship. Equipment and Machinerv. 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 "8." 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.
2.8 Connectina New Facilities. Upon completion of the Water Facilities,
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. In order to allow
Marana to use the Water Facilities for the delivery of water to off-site
customers, Developer if required shall install, at Marana's expense, dual
meters at the point of interconnection. After commencing water service to
the Property, for the purposes of this paragraph, the provisions of Marana
Code S 14-7 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.
2.9 Inspection. Testina 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 of Marana 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 immediately
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
4
i
z
=:J
z
-:.:5
construction site and facilitate the proper inspection of such materials,
including procurement data, and shall 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.
2.10 Chanae 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 liB" 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.
2.11 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.
2.12 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.
..
.
1
z
n
L
:::..::
?
5
2.13 "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. Marana
shall have the right to withhold water service to Developer pursuant to this
Agreement until this condition is satisfied.
2.14 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 work or material before such final completion
and of the Water Facilities, replace or repair forthwith the Work or
materials so injured, damaged or destroyed, to the satisfaction of Marana
and at Developer's own expense.
2.15 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 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.
2.16 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. Certificates
6
..
.i.
L..
.-"
OJ
0:
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;
(b) Liabilitv 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.
(c)
2.17 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 ApplicanUCustomer/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.
2.18 Service Lines. Valves. Meters and Meter Service. Developer or Assignee
shall pay for or install, to Marana specifications, and pursuant to a Water
Line Extension Agreement acceptable to Marana, 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
ApplicanUCustomer/Developer described therein.
~
.
1
2.19 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
be inconsistent with the provisions thereof, is deemed for the purposes
hereof to be the ApplicanUCustomer/Developer described therein.
1:-:
L
2
:;
7
2.20 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 O~ WATER FACILITIES
3.1 Developer shall, at Developer's sole cost 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 914-4 and 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
ApplicanUCustomer/Developer described therein.
3.2 Upon written direction from Marana's Utilities Director and Development
Services Administrator, Developer shall, at Developer's sole cost
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 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 not waive connection fees for home builders in
Continental Reserve but will reimburse Developer Five Hundred Dollars
($500) for each connection fee (5/8" x %" meter and larger size meters
according to Marana Town Code, Section 17-7-2. All meters over 2" will
be at connection fee, (less meter cost, labor, materials, etc.) actually
collected by Marana for new residential or other water connections
located on the Property, subject to the terms and conditions set forth in
this Subsection 3.4. Marana shall make reimbursement payments to
Developer on or before January 31 and July 31 of each year for the
period ending December 31 and June 30 respectively. This
reimbursement obligation shall (i) not apply to any installation and
8
~
.:.
~
i
.-..
L
u
. .
".
. .
<0
connection fee collected during any period which Developer is in breach
of this Agreement, (ii) automatically terminate on the tenth (10th)
anniversary of this Agreement, subject to the continuing obligation to pay
to Developer any reimbursements accrued, but unpaid, as of the tenth
(10th) anniversary, (iii) in no event exceed a cumulative amount of One
Million One Hundred Thousand Dollars ($1,100,000) and (iv) in no event
exceed the amount actually paid to Marana as a service and connection
fee, less any cost actually expended by Marana for materials and labor
(e.g., the cost of the meter) as a condition to Marana making residential
water service available for the first time to the property line of each parcel
for which the service and connection fee was paid.
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 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;
provided, however, until Such time as Marana establishes commercial
and/or industrial rates for golf courses and median/common area, Marana
shall charge Two and 55/100 Dollars ($2.55) per one thousand (1000)
gallons for such water service within the Property.
5.2 If applicable, Developer agrees to assign to Marana, as a condition of
Marana providing water utility service, every portion of its Irrigation or
Type 1 Non-Irrigation Grandfathered Groundwater Rights as those are
defined by law as may be appurtenant to lands conveyed and dedicated
to Marana in connection with the development of the Property, together
with any other grandfathered rights appurtenant to the Property not
necessary to provide water service to a golf course. Developer agrees to
execute and deliver all forms necessary to effect the transfer of these
water rights to Marana concurrently with such dedication.
1
=7
=-
:::.:
=-
~
9
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. In this regard, Marana
intends to utilize Marana's policy and "least-cost" approach in connection
with satisfying the applicable CAGRD requirements.
6. TERMINATION OF AGREEMENT
6.1 In the event Developer does not complete Phase 1 of major infrastructure
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 and no releases of
assurances required by Marana Code No. 6-06.04 and any successor or
amendatory party shall occur until Phase II Water Infrastructure is
completed and accepted by Marana.
6.2 Pursuant to A.R.S. S 38-511, 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 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
section 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, except for provisions of Article 3.1, otherwise
for a period of one (1) yeadollowing 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
10
, ,
2
z
~
inadequate fire protection capacity arising from the negligence of
Developer or its employees or agents.
8. NOTICE
8.1 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: Utilities Director
Town of Marana Water Department
12775 North Sanders Road
Marana, Arizona 85653-9723
With copy to: Mr. Dan Hochuli, Esq.
Town Attorney
220 East Wetmore Road, Suite 110
Tucson, Arizona 85705
and copy to: Martinez & Curtis, P. C.
Attn: William P. Sullivan
2712 N. 7th Street
Phoenix, Arizona 85006-1090
To Applicant: Diamond Ventures, Inc. or Continental Reserve, L.L.C.
2200 East River Road
Suite 115
Tucson, Arizona 85718
With a copy to:
9.
SEVERABILITY
1
9.1
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.
:2
10. ASSIGNMENT
~
10.1 This Agreement shall be binding upon and for the benefit of the heirs,
administrators, executors, successors and assigns of Marana and
Developer; provided, however, no Transfer of Right or Obligation by
11
- ;
1
Developer shall be effective and enforceable against Marana unless
approved in writing by Marana.
11. MISCELLANEOUS
This Agreement contains the sole and only agreement of the parties relating to
the subject matter of this Agreement and correctly sets forth the rights, duties
and obligations of each to the other as of the date of this Agreement. 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
MARAN A; and developer shall have acquired full legal title to the
property, which is the subject hereof. 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.
11.5 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
:::..::
=,;
.=:..
-4
::. =
-"
12
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.
APPROVED AS TO FORM
ATTEST:
TOWN OF MARANA
BY:~
Its: M~E>fl ~o~b~~lt-\mn,~r-.
~m-O
. ToWn"l\"ll ~ d not personally
DEVELOPER
DIAMOND VENTURES, INC.
Its:
~f-" Ofsv' ~
CONTINENTAL RESERVE, L.L.C.
B;; /)/~t'tyo..i) L~..v''1'i.)aEil X+.c
Cb---
R~.s(tl-.!~.
By:
(b~
By:
Its:
ACKNOWLEDGMENT
STATE OF ARIZONA )
) ss.
COUNTY OF )
This instrument was acknowledged before me this day of l/~ay of .kLL
2000, by ~lct c;~J~~ asJ~
of D\'~fn~ \/r?A\ fZAl~, In e....- as Developer.
i
Q
: .":
... .
.-0.
..r
.-:
13
EXHIBIT "A"
LOCATION MAP OF THE DEVELOP
WITH LEGAL DESCRIPTION
o FICIAL SEAL
AN A. YINGLING
NOTARY PUBLIC. ARIZONA
PIMA COUNTY
r.ly Comm. Expire. June 16, 2003
My Commission Expires: vl(,~5
[Please slip the location map of the development behind this cover sheet.]
L
..
Q
2:
o
14
LOCATION MAP OF
WITH LEGAL
"EXHIBIT A"
THE DEVELOPMEI\JT
DESCRIPTION
1
i
~
, ,
, ,
THE BLOCK PLAT OF CONTINENTAL RESERVE, AS RECORDED
IN BOOK 53 OF MAPS, PAGE 35, RECORDS OF PIMA COUNTY, ARIZONA
.--"
:.":
.--"
.....
..r...
'"
~
../~
""
WestLand Resources Inc.
Enqineennq and Envioomentci CGnItCl\ts
2343 E. Broadway Blvd. Suite 202
Tucson, Az 8571 9 (520) 206-9585
EXHIBIT "B"
INCORPORATION BY REFERENCE OF THE
PLANS AND SPECIFICATIONS OF THE
WATER UTll TIY 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:
1. Onsite water main plans designed by Stantec entitled:
Water Distribution System to serve
Continental Reserve
Town of Marana
14 sheets, dated 3/3/00, Job Number 24216501 Civil Water
2. Onsite water plant plans designed by Westland Resources entitled:
Continental Reserve
Water Plant No. 1
Well, Reservoir, and Booster Station Plans
6 sheets, dated April 2000, Job Number 386.04 A 8000
.
.i.
1
8
2
"EXHIBIT C1"
PHASE I ON-SITE WATER DISTRIBUTION SYSTEM
1
....
L..
..
.0
......
-J'
~~'-
WestLand Resources Inc.
Enqineerinq and Environmentll c.5IIIt,mts
2343 E. Broadway Blvd. Suite 202
TUC!5on, Az 8S71 9 (520) 206-9585
"EXHIBIT C2"
PHASE II ON-SITE WATER PLANT PLAN
LEGEND
PHASE I
- - - - - - PHASE II
-
i
L
........
........
:2
n
~
z
WestLand Resources Inc.
Erlqineerinq Gnd EnvionmentdCoasaft:mts
234,3 E. Broadway Blvd. Suite 202
Tucson, AZ B5719 (520) 206-9585