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HomeMy WebLinkAboutResolution 2009-139 construction of water facilities for marana mortuary and cemeteryMARANA RESOLUTION N0.2009-139 RELATING TO UTILITIES; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT FOR CONSTRUCTION OF WATER FACILITIES UNDER PRIVATE CONTRACT FOR THE MARANA MORTUARY AND CEMETERY PROJECT WHEREAS Marana Mortuary & Cemetery Properties, L.L.C. desires to install water facilities to provide water service to the Marana Mortuary and Cemetery development; and WHEREAS the Town of Marana is willing to provide water service to and within Marana Mortuary and Cemetery project in accordance with Title 14 of the Marana Town Code and in accordance with the terms of the Agreement for Construction of Water Facilities Under Private Contract between the Town of Marana and Marana Mortuary & Cemetery Properties, L.L.C. for the Marana Mortuary and Cemetery development project; and WHEREAS the Mayor and Council find that the terms and conditions of the agreement are in the best interest of the Town. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, that the Agreement for Construction of Water Facilities Under Private Contract for the Marana Mortuary and Cemetery development project, attached to and incorporated by this reference in this resolution as Exhibit A, is hereby approved, and the Mayor is hereby authorized to execute it for and on behalf of the Town of Marana. BE IT FURTHER RESOLVED that the Town's Manager and staff are hereby directed and authorized to undertake all other and further tasks required or beneficial to carry out the terms, obligations, and objectives of the aforementioned agreement. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 18th day of August, 2009. ATTEST: Jocelyn ronson, Town Clerk v3'~~.~---_ Mayor `Ed Honea APPROVED AS TO FORM: ank Cassidy, own orney ~', {ooot6tza.ooc i} F. ANN RODRIGUEZ, RECORDER DOCKET: 13626 RECORDED BY: CML DEPUTY RECORDER 1951 AS1 SMARA TOWN OF MARANA °~ ~I.`9 ~'~ ~~O W ~Z ~N~~b PAGE: NO. OF PAGES: SEQUENCE: AG 1651 10 20091610413 08/20/2009 15:47 ATTN: TOWN CLERK 9R~0~1E+ 11555 W CIVIC CENTER DR MAIL MARANA AZ 85653 AMOUNT PAID $ 10.50 TOWN OF MARANA AGREEMENT FOR CONSTRUCTION OF WATER FACII.ITIES UNDER PRIVATE CONTRACT (Marana Mortuary and Cemetery WSA) THIS AGREEI~NT (this "Agreement") is entered into by and between the TowN of MARANA, an Arizona municipal corporation (the "Town"), and MARANA MORTUARY & CEMETERYPROPER- TIES LLC, an Arizona limited liability company (the "Applicant"). The Town and the Applicant are sometimes collectively referred to as the "Parties," each of which is sometimes individually referred to as a "Party." RECITfILS A. This Agreement is entered into and authorized pursuant to Title 14 of the Marana Town Code as it may be amended from time to time (the "Marana Municipal Water Code"). B. The Applicant desires for the Town to provide water service to the land described and depicted on Exhibit A attached to this Agreement (the "Subject Property"). C. The Parties have entered into a "Marana Cemetery Development Agreement" recorded January 15, 2009_ at Docket 13475, Page 184, Pima County Recorder's Office (the "Cemetery DA"), which addresses certain development issues relating to the Subject Property. D. To secure water service from the Town for the Subject Property, the Applicant pro- poses to install those certain water infrastructure improvements referred to in this Agreement as the "Applicant-Installed Facility." E. The required plans, specifications, and materials for. the Applicant-Installed Facility have been approved by the Town: F. The Applicant desires that the Town take ownership of, operate, and service the Appli- cant-Installed Facility "" G. The Town is willing to accept the Applicant-Installed Facility and permit it to be con- nected to the Town water system provided it meets Town standards and the work is done in accor- dance with Town requirements. ~"'q H. It is in the long-term best interests of the Town and the public for landscape watering to be accomplished using non-potable resources as soon as conversion to non-potable service is rea- sonably financially feasible. {00014066 DOC / 3} - 1 - 8/12!2009 12:02 PM F',TC 6~ AGREEMENT NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants set forth in this Agreement, the Parties hereby agree as follows: 1. General 1.1. Applicant installation of the Applicant-Installed Facility. The Applicant has designed and shall install, at Applicant's own expense, the water infrastructure improvements as depicted in Plan No. ENG- 0902-002 as approved by the Town and on file in the office of the Town of Marana Water Utility (the "Facility Plan"). The water infrastructure improvements depicted on the Facility Plan are referred to in this Agreement as the "Applicant-Installed Facility," and shall conform to the design standards of the City of Tucson Water Department and the Town of Ma- rana Municipal Water Code and special specifications and details as approved by the Town and by this reference made a part of this Agreement. The Facility Plan shall include a plan note iden- tifying the Applicant-Installed Facility as a new water facility and shall show any and all altera- tions to the existing water system. Construction and installation of the Applicant-Installed Facil- ity in accordance with the Facility Plan, including without limitation all labor, materials, equip- ment, supplies, and tools required for the construction and installation, is referred to in this Agreement as the "Work." 1.2. Consistency with the Cemetery DA. The Work shall be consistent with Paragraph 2.3 of the Cemetery DA, which requires, among other things, that initial utility access be provided from the Subject Property to the current location of Barnett Road, with permanent utility access being provided from the Subject Property toward the east, to the future alignment of Tangerine Farms Road. To accommodate the future connection to Tangerine Farms Road, the Applicant shall stub out potable water infrastructure to a location just east of the east property line of the Subject Property, as that property line will exist after the Applicant's dedication ofright-of--way for Tan- gerine Farms Road. 1.3. Non potable water service. The Applicant shall at all times maintain access to Available Non-Potable Water Service, and Applicant shall make commercially reasonable efforts to con- nect to and use Available Non-Potable Water Service for landscaping and outdoor non-potable watering needs on the Subject Property. If Available Non-Potable Water Service is for any rea- son not physically available to serve the Subject Property, or the cost of bringing Available Non- Potable Water Service to the Subject Property is not commercially feasible, the Applicant may use Town of Marana potable water for landscaping and other outdoor watering purposes until the cost required to be borne by the Applicant is commercially reasonable. For purposes of this para- graph, the cost is not "commercially feasible" if the sum of the Applicant's share of the esti- mated capital, finance, and extra operational cost of water infrastructure needed to use Available Non-Potable Water Service at the Subject Property and the estimated Available Non-Potable Water Service non-potable water commodity cost for afive-year period is at least one and a half times as much as the sum of the Applicant's share of the estimated capital, finance, and opera- tional cost of water infrastructure needed to use Town of Marana potable water at the Subject Property and the estimated Town of Marana potable water commodity cost for the same five- yearperiod. The term "Available Non-Potable Water Service" means either of the following: 1.3.1. Irrigation water provided by Cortaro Marana Irrigation District ("CMID"), utilized by the Applicant arranging to take flood irrigation from the adjacent CMID irrigation facili- ~„ ...,.N I {00014066 DOC / 3} - 2 - 8/12/2009 12:02 PM FJC ties, or by the Applicant constructing and maintaining a pressurized non-potable system which connects to the nearest CMID turnout at the high point of the quarter section of land in which the Subject Property is located, or 1.3.2. Non-potable water service provided by the Town, utilized by connecting to the Town's nearest then-available non-potable water line. 1.4. Work by licensed contractor. The Work shall be performed by a contractor properly li- censed by the State of Arizona as determined by the Arizona Registrar of Contractors. In addi- tion to any other contractor's license classifications required by the Arizona Registrar of Con- tractors, the contractor shall hold contractor's license classifications A, A-12 and A-16. 1.5. Payment of'connection fees. Before any service connections are made from the Town's water system to the Applicant-Installed Facility, the Applicant shall pay to the Town the connec- tion fees and any other fees required by the Marana Municipal Water Code. 1.6. Anticipated, fees and charges. The Parties currently anticipate that the Applicant will in- stall asingle one and a half inch (1 %s") water meter on the Subject Property. Fees and charges for water meter installation and water service are subject to revision by the Town from time to time. As of the date of this Agreement, the Town's adopted fees and charges associated with a 1 %s" water meter are as follows: FEE DESCRIPIION AMOUNT Minimum month! base fee $ 39.96 Consum tion fee er 1,000 allons 2.86 Securi de osit 625.00 Meter fee 920.00 Gravi stora a/water resource DIF* 7,335.00 Waters stem infrastructure DIF* 4,320.00 * "DIF" =development impact fees 1.7. Applicant-Installed Facility acceptance by Town. No service connections shall be made from the Town's water system to the Applicant-Installed Facility until the Applicant-Installed Facility has been accepted by the Town in accordance with the Marana Municipal Water Code. 1.8. Applicant's certification. Execution of this Agreement certifies that the Applicant has reviewed the Facility Plan and all other specifications applicable to the Work and has approved I. and agrees with the location of all service lines. 1.9. Termination for lack of Work. Approval of the Facility Plan shall lapse and this Agree- ment shall terminate if more than one year has passed since the date of this Agreement and the Work has not begun, or if the Work is discontinued for a period of one year. ~~' 2. Engineering and Inspection 2.1. Registered civil engineer. When the cost of the Work exceeds $12,500.00, the Applicant shall employ a registered Civil Engineer to design, lay out, establish control lines for and certify the layout of the Work according to the Facility Plan. {00014066 DOC / 3} - 3 - 8/12!2009 12:02 PM F JC 2.2. Town inspector's authority. Any inspector authorized by the Town shall have full in- spection authority over the Work. 2.3. Inspection provisions. The Applicant shall furnish the Town's inspector with all facilities reasonably necessary to inspect the Work. The Work shall be subject to Town inspection at all times. Defective work shall be corrected in a manner satisfactory to the Town's inspector. In- spection by the Town is for the purpose of ensuring compliance with plans and specifications only. The Town makes no guarantee as to the safety or engineering soundness of plans prepared by Applicant or any contractor. 2.4. Payment of Town inspector's overtime cost. If scheduling by Applicant's contractor rea- sonably requires the Town's inspector to work overtime, the Applicant or Applicant's contractor shall pay the Town for any additional salaries, expenses or employee benefits relating to the overtime. For purposes of this paragraph, overtime is any time over 40 hours worked in a seven- day work period, any time over eight hours worked Monday through Friday, and any time worked on weekends and legal holidays observed by the Town. 3. Preconstruction Procedure 3.1. Request to begin construction. The Applicant shall submit a written request to begin con- struction to the Town five working days before the Work is to commence. 3.2. Construction permit. This Agreement shall be completed, signed and notarized, and re- turned to the Town prior to issuance of a construction permit for the Work. 3.3. Start and completion of the Work. No portion of the Work shall begin until the Town has issued a construction permit specifying the starting date and a reasonable time for completion. 3.4. Progress of the Work. The work shall be commenced and carried on at such points and in such order as may be directed by the Town. 3.5. Materials sampling and testing. Materials shall be available for sampling and testing by the Town prior to being used in the Work. Materials that fail to meet Town specification shall be removed from the site. 3.6. Permits and approvals. The Applicant shall, at Applicant's expense, obtain all necessary permits and licenses for the Work, pay all fees and comply with all laws, ordinances and regula- tions relating to the Work. '1 4. Construction 4.1. Applicant's presence on site. The Applicant, or Applicant's designated agent, shall be present at all times during performance of the Work. The name of the Applicant's designated agent and the contractor performing the Work shall be furnished to the Town before the Work begins. Instructions given by the Town to the designated agent shall be deemed to have been ,, given to the Applicant. 4.2. Competence and diligence. The Applicant shall employ only competent and efficient la- borers, mechanics or artisans on the work, and the Applicant agrees to perform the work dili- gently to complete the work on or before the completion date given in the notice to proceed. {00014066 DOC / 3} - 4 - 8/12/2009 12:02 PM F.JC 4.3. Paving. The Applicant shall identify and locate alI water valves prior to paving and set valve boxes to final grade after paving. 4.4. Alterations to the existing Town water system. The Applicant shall, at Applicant's ex- pense, make any and all alterations to the existing water system either on-site or off-site necessi- tated by paving, drainage, or other improvements caused by the development of the Subject Property. 4.5. Worksite safety. The Applicant shall require all contractors and subcontractors perform- ing any portion of the Work to comply with all safety requirements of the Occupational Safety and Hazards Act as set forth by the Federal Government and as implemented by the State of Ari- zona. The Applicant or its contractors shall be solely responsible for all fines or other penalties provided for by law for any violations of the Occupational Safety Hazards Act. 5. Dedication 5.1. Transfer of the Applicant-Installed Facility to the Town. Upon the Town's final accep- tance of the Work, the Applicant shall at no cost grant, bargain, sell, convey, transfer and deliver to the Town the Applicant-Installed Facility free and clear of all liens, claims, charges or encum- brances. 5.2. Two-year warranty. The Applicant guarantees the Work to be free from all failures due to poor workmanship or materials for a period of two years from the date of the Town's final ac- ceptance of the Work. 5.3. Other conflicting construction prohibited. The Applicant shall not construct or allow the construction of any utility, building, or other improvement that would interfere with the opera- tion or maintenance of the Applicant-Installed Facility. 5.4. Applicant's obligation to maintain, finished grade. The Applicant guarantees that all ser- vice lines, meters, and meter boxes on the Subject Property will be to finished grade and that Applicant will remain responsible for raising or lowering said services as required until the Sub- ject Property is fully developed. 5.5. Acceptance by the Town. The Town shall accept title to and take possession of the Ap- plicant-Installed Facility when the Work has been completed to the satisfaction of the Town. Subject to the Applicant's continuing obligations under this Agreement, the Town shall operate and service the Applicant-Installed Facility after taking over possession of it under this para- graph. 6. Miscellaneous 6.1. Indemnity. Applicant shall indemnify, defend, and hold harmless the Town, its Mayor and Council, officers and employees, boards, committees and commissions from and against any loss, claim, suit, demand, cause of action, or liability of any nature, including but not limited to damage to property and injuries to persons, including death, arising or alleged to have arisen, in whole or in part, out of any negligent act or omission of Applicant or any contractor, subcontrac- tor, or any person employed directly or indirectly by any of them in the performance of the Work or in the operation of the Applicant-Installed Facility. ~, {00014066 DOC / 3 } - $ - 8/12/2009 12:02 PM F JC 6.2. Binding effect, This agreement shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors and assigns of the Parties. 6.3. Consent required for assignment. Applicant may not assign this Agreement without the prior written consent of the Town. 6.4, Cancellation for conflict of'interest. This agreement is subject to A.R.S. § 38-511, which provides for cancellation in certain instances involving conflict of interest. IN wiTNESS WHEREOF, the Parties have executed this Agreement as of the last date set forth below their respective signatures. TowN: THE TOWN OF MARANA, an Arizona municipal corporation .~~ By: 8 Ed ~ 'ea, Mayor Date: ATTEST: elyn C. B son, Clerk APPROVED AS TO FORM: Owner/Developer: MARANA MORTUARY & CEMETERY PROPER- TIES, L.L.C., an Arizona limited liability company PAHLMEYER. L.L.C., an Arizona limited li- ability com any 'ts manager By: Robert A. Morken III, ~ipts admi 'sptrative member Date: (~ l d t ,- _ .. ~~~~i ~. ~'ra CasSi ,TownAttorn ,,~~ ;~,~- , ~a~ELL ~AST~ ~~ {~N~~tARY UBLIG-~ STATE o~ RIZONA) ~' s ,, ~ ~ ~ ~ ~ l~ ss ~ ~:`v~ domm. Ex .~uc County of Pima ) ~.wm. ~ ~ - The foregoing instrument was acknowledged before me this day of 4~' , 2009 by Robert A. Morken III, administrative member of PAHLMEYER, L.L.C., Arizona lim- ited liability company, the manager of MARANA MORTUARY & CEMETERY PROPERTIES, L.L.C., an Arizona limited liability company, on behalf of the 1 .; , My commission expires: ~ ~~ ~ ~ r ~ ~? -._ ~~ ~~~~'~~~~~ ~~~~~' ~ ~ Nota Public ~~T~! LA GASTELUM '~' ~-~ , , , ~90'I~R,Y PUBLIC-ARIt0A1A {000 omm. Ex 8/12/2009 12:02 PM F.IC ~~I EXIIIBIT "A" LOCATION MAP OF THE DEVELOPMENT WITH LEGAL DESCRIPTION {00014066 DOC / 3} - '] - 8/12/2009 12:02 PM F.JC aN ~~ m ~- _ °' x~ wa ~u EXHIBIT "A" ALL THAT PART OF THE SOUTHWEST QUARTER OF THE NORTHEAST QUARTER OF SECTION 28, TOWNSHIP 11 SOUTH, RANGE 1 I EAST, OF THE GILA AND SALT RIVER BASE AND MERIDIAN, PIMA COUNTY, ARIZONA, AND MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE CENTER SECTION CORNER OF SAID SECTION 28; THENCE NORTH 89 DEGREES 50 MINUTES 16 SECONDS EAST, ALONG THE CENTER SECTION LINE, A DISTANCE OF 334.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 00 DEGREES 03 MINUTES 08 SECONDS WEST, AND PARALLEL WTfH THE NORTH CENTER SECTION LINE, A DISTANCE OF 1316.33 FEET TO A POINT; THENCE NORTH 89 DEGREES 52 MINUTES 10 SECONDS EAST, ADISTANCE OF 792.00 FEET TO A POINT; THENCE SOUTH 00 DEGREES 03 MINUTES 08 SECONDS EAST, A DISTANCE OF 1315.89 FEET TO A POINT; THENCE SOUTH 89 DEGREES 50 MINUTES 16 SECONDS WEST, A DISTANCE OF 792.00 FEET TO THE TRUE POINT OF BEGINNING; EXCEPT THE SOUTH 25 FEET THEREOF. ~, EXHIBIT A Page 2 of 2 MARANA RESOLUTION N0.2009-139 RELATING TO UTILITIES; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT FOR CONSTRUCTION OF WATER FACILITIES UNDER PRIVATE CONTRACT FOR THE MARANA MORTUARY AND CEMETERY PROJECT WHEREAS Marana Mortuary & Cemetery Properties, L.L.C. desires to install water facilities to provide water service to the Marana Mortuary and Cemetery development; and WHEREAS the Town of Marana is willing to provide water service to and within Marana Mortuary and Cemetery project in accordance with Title 14 of the Marana Town Code and in accordance with the terms of the Agreement for Construction of Water Facilities Under Private Contract between the Town of Marana and Marana Mortuary & Cemetery Properties, L.L.C. for the Marana Mortuary and Cemetery development project; and WHEREAS the Mayor and Council find that the terms and conditions of the agreement are in the best interest of the Town. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, that the Agreement for Construction of Water Facilities Under Private Contract for the Marana Mortuary and Cemetery development project, attached to and incorporated by this reference in this resolution as Exhibit A, is hereby approved, and the Mayor is hereby authorized to execute it for and on behalf of the Town of Marana. BE IT FURTHER RESOLVED that the Town's Manager and staff are hereby directed and authorized to undertake all other and further tasks required or beneficial to carry out the terms, obligations, and objectives of the aforementioned agreement. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 18~' day of August, 2009. ATTEST: ocelyn ronson, Town Clerk ;~----_ Mayor'Ed Honea APPROVED AS TO FORM: ~~ w ank Ca~sidy,l~own orney {oooi6ias.noc i} TOWN OF MARANA AGREEMENT FOR CONSTRUCTION OF WATER .FACILITIES UNDER PRIVATE CONTRACT (Marana Mortuary and Cemetery WSA) THIS AGREEI~NT (this "Agreement") is entered into by and between the Towt~1 of MARANA, an Arizona municipal corporation (the "Town"), and MARANA MORTUARY & CEIV~TERY PROPER- TIES LLC, an Arizona limited liability company (the "Applicant"). The Town and the Applicant are sometimes collectively referred to as the "Parties," each of which is sometimes individually referred to as a "Party." RECITALS A. This Agreement is entered into and authorized pursuant to Title 14 of the Marana Town Code as it may be amended from time to time (the "Marana Municipal Water Code"). B. The Applicant desires for the Town to provide water service to the land described and depicted on Exhibit A attached to this Agreement (the "Subject Property"). C. The Parties have entered into a "Marana Cemetery Development Agreement" recorded January 15, 2009. at Docket 13475, Page 184, Pima County Recorder's Office (the "Cemetery DA"), which addresses certain development issues relating to the Subject Property. D. To secure water service from the Town for the Subject Property, the Applicant pro- poses to install those certain water infrastructure improvements referred to in this Agreement as the "Applicant-Installed Facility." E. The required plans, .specifications, and materials for the Applicant-Installed Facility have been approved by the Town. F. T'he Applicant desires that the Town take ownership of, operate, and service the Appli- cant-Installed Facility G. The Town is willing to accept the Applicant-Installed Facility and permit it to be con- nected to the Town water system provided it meets Town standards and the work is done in accor- dance with Town requirements. H. It is in the long-term best interests of the Town and the public for landscape watering to be accomplished using non-potable resources as soon as conversion to non-potable service is rea- sonably financially feasible. {00014066 DOC / 3} - 1 - 8/12/2009 12:02 PM F.1C AGREEMENT NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants set forth in this Agreement, the Parties hereby agree as follows: 1. General 1.1. Applicant installation of the Applicant-Installed Facility. The Applicant has designed and shall install, at Applicant's own expense, the water infrastructure improvements as depicted in Plan No. ENG- 0902-002 as approved by the Town and on file in the office of the Town of Marana Water Utility (the "Facility Plan"). The water infrastructure improvements depicted on the Facility Plan are referred to in this Agreement as the "Applicant-Installed Facility," and shall conform to the design standards of the City of Tucson Water Department and the Town of Ma- rana Municipal Water Code and special specifications and details as approved by the Town and by this reference made a part of this Agreement. The Facility Plan shall include a plan note iden- tifying the Applicant-Installed Facility as a new water facility and shall show any and all altera- tions to the existing water system. Construction and installation of the Applicant-Installed Facil- ity in accordance with the Facility Plan, including without limitation all labor, materials, equip- ment, supplies, and tools required for the construction and installation, is referred to in this Agreement as the "Work." 1.2. Consistency with the Cemetery DA. The Work shall be consistent with Paragraph 2.3 of the Cemetery DA, which requires, among other things, that initial utility access be provided from the Subject Property to the current location of Barnett Road, with permanent utility access being provided from the Subject Property toward the east, to the future alignment of Tangerine Farms Road. To accommodate the future connection to Tangerine Farms Road, the Applicant shall stub out potable water infrastructure to a location just east of the east property line of the Subject Property, as that property line will exist after the Applicant's dedication of right-of--way for Tan- gerine Farms Road. 1.3. Non potable water service. The Applicant shall at all times maintain access to Available Non-Potable Water Service, and Applicant shall make commercially reasonable efforts to con- nect to and use Available Non-Potable Water Service for landscaping and outdoor non-potable watering needs on the Subject Property. If Available Non-Potable Water Service is for any rea- son not physically available to serve the Subject Property, or the cost of bringing Available Non- Potable Water Service to the Subject. Property is not commercially feasible, the Applicant may use Town of Marana potable water for landscaping and other outdoor watering purposes until the cost required to be borne by the Applicant is commercially reasonable. For purposes of this para- graph, the cost is not "commercially feasible" if the sum of the Applicant's share of the esti- mated capital, finance, and extra operational cost of water infrastructure needed to use Available Non-Potable Water Service at the Subject Property and the estimated Available Non-Potable Water Service non-potable water commodity cost for afive-year period is at least one and a half times as much as the sum of the Applicant's share of the estimated capital, finance, and opera- tional cost of water infrastructure needed to use Town of Marana potable water at the Subject Property and the estimated Town of Marana potable water commodity cost for the same five- year period. The term "Available Non-Potable Water Service" means either of the following: 1.3.1. Irrigation water provided by Cortaro Marana Irrigation District ("CMID"), utilized by the Applicant arranging to take flood irrigation from the adjacent CMID irrigation facili- {000]4066 DOC / 3} - 2 - 8!12/2009 12:02 PM F.IC ties, or by the Applicant constructing and maintaining a pressurized non-potable system which connects to the nearest CMID turnout at the high point of the quarter section of land in which the Subject Property is located, or 1.3.2. Non-potable water service provided by the Town, utilized by connecting to the Town's nearest then-available non-potable water line. 1.4. Work by licensed contractor. The Work shall be performed by a contractor properly li- censed by the State of Arizona as determined by the Arizona Registrar of Contractors. In addi- tion to any other contractor's license classifications required by the Arizona Registrar of Con- tractors, the contractor shall hold contractor's license classifications A, A-12 and A-16. 1.5. Payment of'connection fees. Before any service connections are made from the Town's water system to the Applicant-Installed Facility, the Applicant shall pay to the Town the connec- tion fees and any other fees required by the Marana Municipal Water Code. 1.6. Anticipated, fees and charges. The Parties currently anticipate that the Applicant will in- stall asingle one and a half inch (1 %2") water meter on the Subject Property. Fees and charges for water meter installation and water service are subject to revision by the Town from time to time. As of the date of this Agreement, the Town's adopted fees and charges associated with a 1 %z" water meter are as follows: FEE DESCRIPIION AMOUNT Minimum monthl base fee $ 39.96 Consum tion fee er 1,000 allons 2.86 Securi de osit 625.00 Meter fee 920.00 Gravi stora a/water resource DIF* 7,335.00 Waters stem infrastructure DIF* 4,320.00 * "DIF" =development impact fees 1.7. Applicant-Installed Facility acceptance by Town. No service connections shall be made from the Town's water system to the Applicant-Installed Facility until the Applicant-Installed Facility has been accepted by the Town in accordance with the Marana Municipal Water Code. 1.8. Applicant's certification. Execution of this Agreement certifies that the Applicant has reviewed the Facility Plan and all other specifications applicable to the Work and has approved and agrees with the location of all service lines. 1.9. Termination for lack of Work. Approval of the Facility Plan shall lapse and this Agree- ment shall terminate if more than one year has passed since the date of this Agreement and the Work has not begun, or if the Work is discontinued for a period of one year. 2. Engineering and Inspection 2.1. Registered civil engineer. When the cost of the Work exceeds $12,500.00, the Applicant shall employ a registered Civil Engineer to design, lay out, establish control lines for and certify the layout of the Work according to the Facility Plan. {00014066 DOC / 3} - 3 - 8/12/2009 12:02 PM F.JC 2.2. Town inspector's authority. Any inspector authorized by the Town shall have full in- spection authority over the Work. 2.3. Inspection provisions. The Applicant shall furnish the Town's inspector with all facilities reasonably necessary to inspect the Work. The Work shall be subject to Town inspection at all times. Defective work shall be corrected in a manner satisfactory to the Town's inspector. In- spection by the Town is for the purpose of ensuring compliance with plans and specifications only. The Town makes no guarantee as to the safety or engineering soundness of plans prepared by Applicant or any contractor. 2.4. Payment of Town inspector's overtime cost. If scheduling by Applicant's contractor rea- sonably requires the Town's inspector to work overtime, the Applicant or Applicant's contractor shall pay the Town for any additional salaries, expenses or employee benefits relating to the overtime. For purposes of this paragraph, overtime is any time over 40 hours worked in a seven- day work period, any time over eight hours worked Monday through Friday, and any time worked on weekends and legal holidays observed by the Town. 3. Preconstruction Procedure 3.1. Request to begin construction. The Applicant shall submit a written request to begin con- struction to the Town five working days before the Work is to commence. 3.2. Construction permit. This Agreement shall be completed, signed and notarized, and re- turned to the Town prior to issuance of a construction permit for the Work. 3.3. Start and completion of the Work. No portion of the Work shall begin until the Town has issued a construction permit specifying the starting date and a reasonable time for completion. 3.4. Progress of the Work. The work shall be commenced and carried on at such points and in such order as may be directed by the Town. 3.5. Materials sampling and testing. Materials shall be available for sampling and testing by the Town prior to being used in the Work. Materials that fail to meet Town specification shall be removed from the site. 3.6. Permits and approvals. The Applicant shall, at Applicant's expense, obtain all necessary permits and licenses for the Work, pay all fees and comply with all laws, ordinances and regula- tions relating to the Work. 4. Construction 4.1. Applicant's presence on site. The Applicant, or Applicant's designated agent, shall be present at all times during performance of the Work. The name of the Applicant's designated agent and the contractor performing the Work shall be furnished to the Town before the Work begins. Instructions given by the Town to the designated agent shall be deemed to have been given to the Applicant. 4.2. Competence and diligence. The Applicant shall employ only competent and efficient la- borers, mechanics or artisans on the work, and the Applicant agrees to perform the work dili- gently to complete the work on or before the completion date given in the notice to proceed. {00014066 DOC / 3} - 4 - 8/12/2009 12:02 PM F.IC 4.3. Paving. The Applicant shall identify and locate all water valves prior to paving and set valve boxes to final grade after paving. 4.4. Alterations to the existing Town water system. The Applicant shall, at Applicant's ex- pense, make any and all alterations to the existing water system either on-site or off-site necessi- tated by paving, drainage, or other improvements caused by the development of the Subject Property. 4.5. Worksite safety. The Applicant shall require all contractors and subcontractors perform- ing any portion of the Work to comply with all safety requirements of the Occupational Safety and Hazards Act as set forth by the Federal Government and as implemented by the State of Ari- zona. The Applicant or its contractors shall be solely responsible for all fines or other penalties provided for by law for any violations of the Occupational Safety Hazards Act. 5. Dedication 5.1. Transfer of the Applicant-Installed Facility to the Town. Upon the Town's final accep- tance of the Work, the Applicant shall at no cost grant, bargain, sell, convey, transfer and deliver to the Town the Applicant-Installed Facility free and clear of all liens, claims, charges or encum- brances. 5.2. Two-year warranty. The Applicant guarantees the Work to be free from all failures due to poor workmanship or materials for a period of two years from the date of the Town's final ac- ceptance of the Work. 5.3. Other conflicting construction prohibited. The Applicant shall not construct or allow the construction of any utility, building, or other improvement that would interfere with the opera- tion or maintenance of the Applicant-Installed Facility. 5.4. Applicant's obligation to maintain finished grade. The Applicant guarantees that all ser- vice lines, meters, and meter boxes on the Subject Property will be to finished grade and that Applicant will remain responsible for raising or lowering said services as required until the Sub- ject Property is fully developed. 5.5. Acceptance by the Town. The Town shall accept title to and take possession of the Ap- plicant-Installed Facility when the Work has been completed to the satisfaction of the Town. Subject to the Applicant's continuing obligations under this Agreement, the Town shall operate and service the Applicant-Installed Facility after taking over possession of it under this para- graph. 6. Miscellaneous 6.1. Indemnity. Applicant shall indemnify, defend, and hold harmless the Town, its Mayor and Council, officers and employees, boards, committees and commissions from and against any Loss, claim, suit, demand, cause of action, or liability of any nature, including but not limited to damage to property and injuries to persons, including death, arising or alleged to have arisen, in whole or in part, out of any negligent act or omission of Applicant or any contractor, subcontrac- tor, or any person employed directly or indirectly by any of them in the performance of the Work or in the operation of the Applicant-Installed Facility. {00014066 DOC / 3} - $ - 8/12/2009 12:D2 PM FJC 6.2. Binding effect. This agreement shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors and assigns of the Parties. 6.3. Consent required for assignment. Applicant may not assign this Agreement without the prior written consent of the Town. 6.4. Cancellation for conflict of interest. This agreement is subject to A.R.S. § 38-511, which provides for cancellation in certain instances involving conflict of interest. IN WITNESS wI~REOF, the Parties have executed this Agreement as of the last date set forth below their respective signatures. TowN: THE TOWN OF MARANA, an Arizona municipal corporation By: 8, Ed ~ ea, Mayor Date: ATTEST: elyn C. B son, Clerk APPROVED AS TO FORM: Owner/Developer: MARANA MORTUARY & CEMETERY PROPER- TIES, L.L.C., an Arizona limited liability company PAHLMEYER. L.L.C., an Arizona limited li- ability com any 'ts manager By: Robert A. Morken III, ~ipts admi "sAtrative member Date: O l ~ ` Town STATE O~ ARIZONA ) ss County of Pima ) ~d.~`tARI' UBLIC-A ~ ~~~ ~~ ~'i~ Cfal~ ._. ;" My Comm. Exp. Auk s-v~ .. .~_ . . The foregoing instrument was acknowledged before me this day of A~'" , 2009 by Robert A. Morken III, administrative member of PAHLMEYER, L.L.C., Arizona lim- ited liability company, the manager of MARANA MORTUARY & CEMETERY PROPERTIES, L.L.C., an Arizona limited liability company, on behalf of the rt..., ..~ My commission expires: ~ ~ ~ i , ~ , ~r}~b~'tat, ~~~G a Notary Public 3; :#;~„ . , ~ E~T~L LA GASTELIlM ! bC'Id;R~ PUBLIC-ARiZORIA Y ~~ s.~ ~ ~t~~ ~~~~~~ {00014066 8/12/2009 12:02 PM FJC EXHIBIT "A" LOCATION MAP OF THE DEVELOPMENT WITH LEGAL DESCRIPTION {00014066 DOC / 3} - 7 - 8!12/200912:02 PM F.JC TOWN OF MARANA AGREEMENT FOR CONSTRUCTION OF WATER FACILITIES UNDER PRIVATE CONTRACT (Marana Mortuary and Cemetery WSA) THIS AGREEMENT (this "Agreement") is entered into by and between the TowN of MARANA, an Arizona municipal corporation (the "Town"), and MARANA MORTUARY & CEMETERY PROPER- TIES LLC, an Arizona limited liability company (the "Applicant"). The Town and the Applicant are sometimes collectively referred to as the "Parties," each of which is sometimes individually referred to as a "Party." RECrTArs A. This Agreement is entered into and authorized pursuant to Title 14 of the Marana Town Code as it maybe amended from time to time (the "Marana Municipal Water Code"). B. The Applicant desires for the Town to provide water service to the land described and depicted on Exhibit A attached to this Agreement (the "Subject Property"). C. The Parties have entered into a "Marana Cemetery Development Agreement" recorded January 15, 2009 at Docket 13475, Page 184, Pima County Recorder's Office (the "Cemetery DA"), which addresses certain development issues relating to the Subject Property. D. To secure water service from the Town for the Subject Property, the Applicant pro- poses to install those certain water infrastructure improvements referred to in this Agreement as the "Applicant-Installed Facility." E. The required plans, specifications, and materials for the Applicant-Installed Facility have been approved by the Town. F. The Applicant desires that the Town take ownership of, operate, and service the Appli- cant-Installed Facility G. The Town is willing to accept the Applicant-Installed Facility and permit it to be con- nected to the Town water system provided it meets Town standards and the work is done in accor- dance with Town requirements. H. It is in the long-term best interests of the Town and the public for landscape watering to be accomplished using non-potable resources as soon as conversion to non-potable service is rea- sonably financially feasible. {00014066.DOC / 3} - 1 - 8/12/2009 12:02 PM FJC EXHIBIT A AGREEMENT NOW, TxExEFOxE, in consideration of the foregoing premises and the mutual covenants set forth in this Agreement, the Parties hereby agree as follows: 1. General l.l. Applicant installation of the Applicant-Installed Facility. The Applicant has designed and shall install, at Applicant's own expense, the water infrastructure improvements as depicted in Plan No. ENG- 0902-002 as approved by the Town and on file in the office of the Town of Marana Water Utility (the "Facility Plan"). The water infrastructure improvements depicted on the Facility Plan are referred to in this Agreement as the "Applicant-Installed Facility," and shall conform to the design standards of the City of Tucson Water Department and the Town of Ma- rana Municipal Water Code and special specifications and details as approved by the Town and by this reference made a part of this Agreement. The Facility Plan shall include a plan note iden- tifying the Applicant-Installed Facility as a new water facility and shall show any and all altera- tions to the existing water system. Construction and installation of the Applicant-Installed Facil- ity in accordance with the Facility Plan, including without limitation all labor, materials, equip- ment, supplies, and tools required for the construction and installation, is referred to in this Agreement as the "Work." 1.2. Consistency with the Cemetery DA. The Work shall be consistent with Paragraph 2.3 of the Cemetery DA, which requires, among other things, that initial utility access be provided from the Subject Property to the current location of Barnett Road, with permanent utility access being provided from the Subject Property toward the east, to the future alignment of Tangerine Farms Road. To accommodate the future connection to Tangerine Farms Road, the Applicant shall stub out potable water infrastructure to a location just east of the east property line of the Subject Property, as that property line will exist after the Applicant's dedication ofright-of--way for Tan- gerine Farms Road. 1.3. Non potable water service. The Applicant shall at all times maintain access to Available Non-Potable Water Service, and Applicant shall make commercially reasonable efforts to con- nect to and use Available Non-Potable Water Service for landscaping and outdoor non-potable watering needs on the Subject Property. If Available Non-Potable Water Service is for any rea- son not physically available to serve the Subject Property, or the cost of bringing Available Non- Potable Water Service to the Subject Property is not commercially feasible, the Applicant may use Town of Marana potable water for landscaping and other outdoor watering purposes until the cost required to be borne by the Applicant is commercially reasonable. For purposes of this para- graph, the cost is not "commercially feasible" if the sum of the Applicant's share of the esti- mated capital, finance, and extra operational cost of water infrastructure needed to use Available Non-Potable Water Service at the Subject Property and the estimated Available Non-Potable Water Service non-potable water commodity cost for afive-year period is at least one and a half times as much as the sum of the Applicant's share of the estimated capital, finance, and opera- tional cost of water infrastructure needed to use Town of Marana potable water at the Subject Property and the estimated Town of Marana potable water commodity cost for the same five- yearperiod. The term "Available Non-Potable Water Service" means either of the following: {00014066.DOC / 3} - 2 - 8/12/2009 12:02 PM FJC EXHIBIT A 1.3.1. Irrigation water provided by Cortaro Marana Irrigation District ("CMID"), utilized by the Applicant arranging to take flood irrigation from the adjacent CMID irrigation facili- ties, or by the Applicant constructing and maintaining a pressurized .non-potable system which connects to the nearest CMID turnout at the high point of the quarter section of land in which the Subject Property is located, or 1.3.2. Non-potable water service provided by the Town, utilized by connecting to the Town's nearest then-available non-potable water line. 1.4. Work by licensed contractor. The Work shall be performed by a contractor properly li- censed by the State of Arizona as determined by the Arizona Registrar of Contractors. In addi- tion to any other contractor's license classifications required by the Arizona Registrar of Con- tractors, the contractor shall hold contractor's license classifications A, A-12 and A-16. 1.5. Payment of connection fees. Before any service connections are made from the Town's water system to the Applicant-Installed Facility, the Applicant shall pay to the Town the connec- tion fees and any other fees required by the Marana Municipal Water Code. 1.6. Anticipated fees and charges. The Parties currently anticipate that the Applicant will in- stall asingle one and a half inch (1'h") water meter on the Subject Property. Fees and charges for water meter installation and water service are subject to revision by the Town from time to time. As of the date of this Agreement, the Town's adopted fees and charges associated with a 1 %2" water meter are as follows: FEE DESCRIPTION AMOUNT Minimum monthly base fee $ 39.96 Consum tion fee (per 1,000 gallons) 2.86 Security de osit 625.00 Meter fee 920.00 Gravity storage/water resource DIF* 7,335.00 Water system infrastructure DIF* 4,320.00 * "DIF" =development impact fees 1.7. Applicant-Installed Facility acceptance by Town. No service connections shall be made from the Town's water system to the Applicant-Installed Facility until the Applicant-Installed Facility has been accepted by the Town in accordance with the Marana Municipal Water Code. 1.8. Applicant's certification. Execution of this Agreement certifies that the Applicant has reviewed the Facility Plan and all other specifications applicable to the Work and has approved and agrees with the location of all service lines. 1.9. Termination for lack of Work. Approval of the Facility Plan shall lapse and this Agree- ment shall terminate if more than one year has passed since the date of this Agreement and the Work has not begun, or if the Work is discontinued for a period of one year. {00014066.DOC / 3} - 3 - 8/12/2009 12:02 PM FJC EXHIBIT A 2. Engineering and Inspection 2.1. Registered civil engineer. When the cost of the Work exceeds $12,500.00, the Applicant shall employ a registered Civil Engineer to design, lay out, establish control lines for and certify the layout of the Work according to the Facility Plan. 2.2. Town inspector's authority. Any inspector authorized by the Town shall have full in- spection authority over the Work. 2.3. Inspection provisions. The Applicant shall furnish the Town's inspector with all facilities reasonably necessary to inspect the Work. The Work shall be subject to Town inspection at all times. Defective work shall be corrected in a manner satisfactory to the Town's inspector. In- spection by the Town is for the purpose of ensuring compliance with plans and specifications only. The Town makes no guarantee as to the safety or engineering soundness of plans prepared by Applicant or any contractor. 2.4. Payment of Town inspector's overtime cost. If scheduling by Applicant's contractor rea- sonably requires the Town's inspector to work overtime, the Applicant or Applicant's contractor shall pay the Town for any additional salaries, expenses or employee benefits relating to the overtime. For purposes of this paragraph, overtime is any time over 40 hours worked in a seven- day work period, any time over eight hours worked Monday through Friday, and any time worked on weekends and legal holidays observed by the Town. 3. Preconstruction Procedure 3.1. Request to begin construction. The Applicant shall submit a written request to begin con- struction to the Town five working days before the Work is to commence. 3.2. Construction permit. This Agreement shall be completed, signed and notarized, and re- turned to the Town prior to issuance of a construction permit for the Work. 3.3. Start and completion of the Work. No portion of the Work shall begin until the Town has issued a construction permit specifying the starting date and a reasonable time for completion. 3.4. Progress of the Work. The work shall be commenced and carried on at such points and in such order as maybe directed by the Town. 3.5. Materials sampling and testing. Materials shall be available for sampling and testing by the Town prior to being used in the Work. Materials that fail to meet Town specification shall be removed from the site. 3.6. Permits and approvals. The Applicant shall, at Applicant's expense, obtain all necessary permits and licenses for the Work, pay all fees and comply with all laws, ordinances and regula- tions relating to the Work. 4. Construction 4.1. Applicant's presence on site. The Applicant, or Applicant's designated agent, shall be present at all times during performance of the Work. The name of the Applicant's designated {00014066.DOC / 3} - 4 - 8/12/2009 12:02 PM FJC EXHIBIT A agent and the contractor performing the Work shall be furnished to the Town before the Work begins. Instructions given by the Town to the designated agent shall be deemed to have been given to the Applicant. 4.2. Competence and diligence. The Applicant shall employ only competent and efficient la- borers, mechanics or artisans on the work, and the Applicant agrees to perform the work dili- gently to complete the work on or before the completion date given in the notice to proceed. 4.3. Paving. The Applicant shall identify and locate all water valves prior to paving and set valve boxes to final grade after paving. 4.4. Alterations to the existing Town water system. The Applicant shall, at Applicant's ex- pense, make any and all alterations to the existing water system either on-site or off-site necessi- tated by paving, drainage, or other improvements caused by the development of the Subject Property. 4.5. Worksite safety. The Applicant shall require all contractors and subcontractors perform- ing any portion of the Work to comply with all safety requirements of the Occupational Safety and Hazards Act as set forth by the Federal Government and as implemented by the State of Ari- zona. The Applicant or its contractors shall be solely responsible for all fines or other penalties provided for by law for any violations of the Occupational Safety Hazards Act. 5. Dedication 5.1. Transfer of the Applicant-Installed Facility to the Town. Upon the Town's final accep- tance of the Work, the Applicant shall at no cost grant, bargain, sell, convey, transfer and deliver to the Town the Applicant-Installed Facility free and clear of all liens, claims, charges or encum- brances. 5.2. Two year warranty. The Applicant guarantees the Work to be free from all failures due to poor workmanship or materials for a period of two years from the date of the Town's final ac- ceptance of the Work. 5.3. Other conflicting construction prohibited. The Applicant shall not construct or allow the construction of any utility, building, or other improvement that would interfere with the opera- tion or maintenance of the Applicant-Installed Facility. 5.4. Applicant's obligation to maintain finished grade. The Applicant guarantees that all ser- vice lines, meters, and meter boxes on the Subject Property will be to finished grade and that Applicant will remain responsible for raising or lowering said services as required until the Sub- ject Property is fully developed. 5.5. Acceptance by the Town. The Town shall accept title to and take possession of the Ap- plicant-Installed Facility when the Work has been completed to the satisfaction of the Town. Subject to the Applicant's continuing obligations under this Agreement, the Town shall operate and service the Applicant-Installed Facility after taking over possession of it under this para- graph. {00014066.DOC / 3} - $ - 8/12/2009 12:02 PM FJC EXHIBIT A 6. Miscellaneous 6.1. Indemnity. Applicant shall indemnify, defend, and hold harmless the Town, its Mayor and Council, officers and employees, boards, committees and commissions from and against any loss, claim, suit, demand, cause of action, or liability of any nature, including but not limited to damage to property and injuries to persons, including death, arising or alleged to have arisen, in whole or in part, out of any negligent act or omission of Applicant or any contractor, subcontrac- tor, or any person employed directly or indirectly by any of them in the performance of the Work or in the operation of the Applicant-Installed Facility. 6.2. Binding effect. This agreement shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors and assigns of the Parties. 6.3. Consent required for assignment. Applicant may not assign this Agreement without the prior written consent of the Town. 6.4. Cancellation for conflict of interest. This agreement is subject to A.R.S. § 38-511, which provides for cancellation in certain instances involving conflict of interest. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last date set forth below their respective signatures. Towle: THE TOWN OF MARANA, an Arizona municipal corporation Owner/Developer: MARANA MORTUARY & CEMETERY PROPER- TIES, L.L.C., an Arizona limited liability company By: Ed Honea, Mayor Date: ATTEST: Jocelyn C. Bronson, Clerk APPROVED AS TO FORM: Frank Cassidy, Town Attorney PAHLMEYER. L.L.C., an Arizona limited li- ability company, its manager By: Robert A. Morken III, its administrative member Date: {00014066.DOC / 3} - f) - 8/12/2009 12:02 PM FJC EXHIBIT A STATE OF ARIZONA SS County of Pima ) The foregoing instrument was acknowledged before me this day of , 2009 by Robert A. Morken III, administrative member of PAHLMEYER, L.L.C., an Arizona lim- ited liability company, the manager of MARANA MORTUARY & CEMETERY PROPERTIES, L.L.C., an Arizona limited liability company, on behalf of the LLC. My commission expires: Notary Public {00014066.DOC / 3} 7 8/12/2009 12:02 PM FJC EXHIBIT A EXHIBIT "A" LOCATION MAP OF THE DEVELOPMENT WITH LEGAL DESCRIPTION {00014066.DOC / 3} - 8 - 8/12/2009 12:02 PM FJC EXHIBIT A