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HomeMy WebLinkAboutResolution 2006-127 agreement for construction of water facilities for willow ridge F. ANN RODRIGUEZ, RECORDER RECORDED BY: MAS DEPUTY RECORDER 5432 PE4 DOCKET: PAGE: NO. OF PAGES: SEQUENCE: 12885 2704 2 20061740613 09/08/2006 16:13 SMARA TOWN OF MARANA ATTN: TOWN CLERK 11555 W CIVIC CENTER DR MARANA AZ 85653 RES MAIL AMOUNT PAID $ 8.00 MARANA RESOLUTION NO. 2006-127 RELATING TO WATER SERVICE; APPROVING AND AUTHORIZING THE EXECUTION OF THE AGREEMENT BETWEEN THE TOWN OF MARANA AND CPE DEVELOPMENT COMP ANY, INC., FOR CONSTRUCTION OF WATER FACILITIES AND PROVISION OF WATER UTILITY SERVICE FOR WILLOW RIDGE. WHEREAS, CPE Development Company, Inc., desires to install on-site and off-site water facilities to provide water to Willow Ridge; and WHEREAS, the Town of Marana is willing to provide water service to and within Willow Ridge in accordance with Title 14 of the Marana Town Code and in accordance with the terms of the agreement; and WHEREAS, CPE Development Company, Inc., agrees to the construction of water facilities for Willow Ridge; 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 and Provision of Water Utility Service between the Town of Maran a and CPE Development Company, Inc., 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 14'" day of August, 2006. R ~ Ed Honea, Mayor ~\""n',,,,~ ~....\.OF~ ~ #~,~\\\,,,.,,,,,;:);~ S E~ORPORATf\"'l;.~ _sc::oos_ - =SEAL- - - 'I; S ~ .... ~ ~!'"- ~ ~ ,;: ~ ".'f. ~"lIllll\\~ ~ ~~ICIIZ. ,\9 .....\~ -"IIU"\- l :~;~~ t:$ ~;::~ !;;i ATTEST: ~~ 2 I~;;~l [~j "~~ {OOOO2429.DOC /} FJe/cds 7/25/06 Exhibit A to Marana Resolution No. 2006-127, entitled AGREEMENT FOR CONSTRUCTION OF WATER FACILITIES AND PROVISION OF WATER UTILITY SERVICE, by and between the Town of Marana and CPE DEVELOPMENT COMPANY, INC., was recorded separately on September 8, 2006, at Docket J:2~o~ , Page d ;?:)f.o in the Office of the Pima County Recorder. 1. .."~ ;jj,',,, El ~~. .",.!Il I" ...~) ~:~ ,~ ;Ii.. 7 ~) e; F. ANN RODRIGUEZ, RECORDER RECORDED BY: MAS DEPUTY RECORDER 5432 PE4 DOCKET: PAGE: NO. OF PAGES: SEQUENCE: 12885 2706 15 20061740614 09/08/2006 16:13 MAIL AMOUNT PAID SMARA TOWN OF MARANA ATTN: TOWN CLERK 11555 W CIVIC CENTER DR MARANA AZ 85653 AG $ 13.00 TOWN OF MARANA AGREEMENT FOR CONSTRUCTION OF WATER FACILITIES AND PROVISION OF WATER UTILITY SERVICE THIS AGREEMENT FOR CONSTRUCTION OF WATER FACILITIES AND PROVISION OF WATER UTILITY SERVICE (this "Agreement") is entered into by and between the TOWN OF MARANA, ARIZONA, an Arizona municipal corporation ("Marana"), and CPE DEVELOPMENT COMPANY, INC., an Arizona corporation (the "Developer" or "Applicant") for the construction of "Water Facilities" necessary to provide water utility service to certain real property known as WILLOW RIDGE, which is more specifically described on Exhibit "A" (the "Property"). RECITALS WHEREAS, Developer warrants that it (i) is legally qualified to do business in the State or Arizona, and (ii) owns the Property which is the subject to this Agreement; and WHEREAS, Developer is desirous of arranging for the provision of water service to and within the Property in connection with development of the Property; and WHEREAS, Marana (i) owns and operates a municipal water system, and (ii) is experienced in the provision of water service; and WHEREAS, Marana is willing to supply water to the Property in accordance with the Marana Town Code and the terms of this Agreement. 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: CPE DEVELOPMENT COMPANY, INC., an Arizona corporation, and its successors and assigns. 1.2 Property: That certain property or real estate development known as Willow Ridge and as shown on Exhibit "A". 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, Willow Ridge WSA --.J ~i, ~;:: l:~;i' ~~~~~ ~::~ ~ " foll'"" ,..,~ ,I ~~ E') 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 Plans and Specifications. TestinQ and PhasinQ. Developer shall design and construct, at Developer's own expense, the Water Facilities in accordance with the Plans and Specifications (as defined in paragraph 2.1 (a) below). The Plans and Specifications shall (i) conform to the design standards of the City of Tucson Water Department and the Marana Town Water Code, (ii) be sized to and capable of serving the water needs of the maximum authorized development on the Property (including all commercial and noncommercial development to be served by Marana), and (iii) designate the point of interconnection referred to in Paragraph 2.6 of this Agreement. (a) For purposes of this Agreement, the term "Plans and Specifications" shall mean technical drawings and specifications prepared and stamped by a qualified registered civil engineer that include, at a minimum, the following infrastructure improvements: (ii) Willow Ridge WSA (i) Hartman Lane Water Line Interconnection. Developer shall utilize Marana's plans for design to construct, at Developer's own expense, the eight-inch (8") water line and appurtenant facilities necessary to interconnect along Hartman Lane the Cortaro Ranch water system to the Hartman Vistas water system (the "Hartman Lane Water Line"). Construction of the Hartman Lane Water Line shall include the construction of a P.R.V. station, requisite permitting, and the replacement of pavement as necessary following the completion of construction. Developer shall construct these improvements within 150 calendar days after Marana's issuance of the requisite construction permits; provided that Marana approves the Plans and Specifications within 30 days after the date this Agreement is executed. Because construction of the Hartman Lane Water Line corrects an existing Water System deficiency, the Town shall reimburse Developer for one-half (%) of the actual cost to construct the Hartman Lane Water Line. For budgeting reasons, the Town's reimbursement will occur no earlier than July 1, 2007, but in no event later than September 1, 2007. Camino de Oeste Water Line Extension. Developer shall extend the new eight-inch (8") water line currently being built in Camino de Oeste (the "Camino de Oeste Water Line") with the Cortaro Roadway Project north approximately 700 linear feet. Beginning upon the completion of construction of 2 :11" ~~;~ ~~~ l~:;I: jI'''''' ~:~ ~~~ :4~: i'"j!!1 f;~ -'r "I 2.2 Willow Ridge WSA the Camino de Oeste Water Line and for a period of ten years thereafter or until one-half (%) of Developer's actual construction costs for construction of the Camino de Oeste Water Line has been remitted, whichever occurs first, Marana will remit to Developer 75% of all connection fees collected from the owners of adjacent developments or residences benefiting from the Camino de Oeste Water Line. Marana shall make these 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. (iii) Storaae and Fire Protection. Developer shall design and construct a new booster station with the ability to serve domestic and commercial fire flow demands within the Property at a site acceptable to the Town of Marana (hereafter, the "Booster Station"). Unless otherwise agreed, the site of the Booster Station shall be generally square and shall contain a minimum of 250 square feet. Developer shall grant permanent site access to the Booster Station. Developer shall also construct 12-inch suction and discharge mains to the Booster Station along with appropriate provisions for 3-phase power for use by the Booster Station. The Town of Marana requirements for off-site infrastructure connections currently satisfy the Northwest Fire Department's minimum requirement of 1,500 gpm for commercial fire protection within the commercial parcels of Willow Ridge. The Booster Station shall be built no later than one (1) year after the later of the first water meter being issued at Willow Ridge Commons or final plat approval of Willow Ridge Estates. (b) To the extent that Work (as hereafter defined in Paragraph 2.7) on the Water Facilities or the Booster Station is to be performed off the Property, Developer shall provide and acquire if necessary all requisite permits, licenses or easements necessary for Developer to perform the Work. The Town shall cooperate with Developer in obtaining any rights or consents needed from third parties. (c) An Opinion of Probable Cost prepared by Marana is attached as Exhibit "B", Following completion of construction of the Water Utilities and Booster Station, Developer shall provide to Town a schedule of the actual costs of construction of the Water Utilities and Booster Station, which shall be used for purposes of the reimbursements to be made under this Agreement. 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 :1. 2i l:~ l:~:~ ~"('" .:~ ~ 11"::11 Il" 7' ~~ l:.~t 3 ADEQ or PCDEQ, and (iii) accepted by Marana prior to Marana issuing Developer a Certificate of Occupancy for any residential or commercial unit. 2.3 Contractor. The Water Facilities shall be constructed by a contractor properly licensed by the state of Arizona and in accordance with the Plans and Specifications. 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 of the Water Facilities. 2.4 Permits and Licenses. Applicant shall obtain all necessary permits and licenses, pay all fees and comply with all laws, ordinances and regulations related to the public health, safety, welfare and construction of the Water System. 2.5 Materials. Workmanship. Equipment and 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. 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 Marana's final acceptance of the Work. 2.6 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. After commencing water service to the Property, for the purposes of this paragraph, the provisions of Marana Code 914-7 and any successor or amendatory provisions are incorporated herein as though set forth in full and Developer, except to the extent to do so would be inconsistent with the provisions thereof, is deemed for the purposes hereof to be the Applicant/Customer/Developer described therein. 2.7 Inspection. 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 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 prior 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 described in this Agreement (the "Work"), Developer shall give Marana and any inspectors appointed by it, free access to the construction site and facilitate the proper inspection of such materials, 4 Willow Ridge WSA l ::~: f:::t l~:~~ 5 ~~ "~ .,., 7 r~ ~~ 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 for the Work. Developer agrees that no inspection by or on behalf of Marana shall relieve Developer from its obligation to do and complete the Work in accordance with this Agreement. If at any time before the final completion and acceptance of the Work, any part of the Work is found to be defective in any way, or in any way fails to conform to this Agreement, Marana is hereby expressly authorized to reject or revoke acceptance of such defective or deficient Work and require Developer to repair, replace, or make good on such defective Work. Marana specifically reserves the right to withhold approval and to forbid connection of the Water Facilities constructed pursuant to this Agreement to Marana's water utility system unless such Water Facilities have been constructed in accordance with the Plans and Specifications approved by Marana and are satisfactory to Marana upon inspection and testing. Developer agrees that it will promptly correct all defects and deficiencies in construction, materials, and workmanship upon request by Marana made subsequent to inspections by Marana. 2.8 Chanae Orders. If Developer makes (or desires to make) any material changes to the design of the Water Facilities which are to be constructed in accordance with the Plans and Specifications, Developer shall (a) obtain Marana's prior written consent to such material changes or modifications, (b) pay to Marana a reasonable fee for its time in reviewing such material changes or modifications, and (c) pay the additional cost of construction associated with the same, if any. 2.9 Invoices. Developer agrees to furnish Marana, within thirty (30) days after completion of construction, copies of all Developer, subcontractor, vendor and all others invoices for all engineering and other services, materials purchased, materials installed, construction performed, equipment provided and all else done directly in connection with construction pursuant to this Agreement at the actual cost thereof. 2.10 Liens. Developer acknowledges its duty to obtain to the satisfaction of Marana lien waivers and releases from all third parties providing labor, materials or services hereunder. Developer hereby irrevocably waives any rights it may now have or which it may acquire during the course of this Agreement to record liens against Marana or its property. Developer shall also pay, satisfy and discharge all mechanics', material men's and other liens, and all claims, obligations and liabilities which may be asserted against Marana or its property by reason of, or as a result of, any acts or omissions of Developer, its employees, agents, servants, suppliers, or subcontractors, or the employees, agents, servants or suppliers of its subcontractors, in connection with or relating to the performance of this Agreement. 2.11 "As-Built" Plans. Developer agrees to furnish Marana, within thirty (30) days after completion of construction, "as-built" drawings in both handwritten and electronic format certified as to correctness by an 5 Willow Ridge WSA t 1I"'~1 ;,(" f;;t f~ ~ ,,,) ~:~ 2 7 t (~) 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. 2.12 Risk. Developer shall carry on all activities associated with or comprising the Work required hereunder at its own risk until the Water Facilities are fully completed and accepted by Marana and will, in case of accident, destruction or injury to the 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. 2.13 Liabilitv. (a) 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. (b) Marana hereby assumes all of the responsibility and liability for injury or death of any person, or loss for damage to any property contributed to or caused by the active or passive negligence of the Town caused by interconnecting the Water Facilities to any off-site water facilities by Marana, and, in that event, Marana will indemnify, appear and defend and hold Developer harmless from and against claims, (except and to the extent that the same is caused or contributed to by Developer, its employees, agents and consultants) or expenses, including penalties and assessments, to which they or any of them may be subject to by reason of such injury, death, loss, claim, penalty, assessment or damage, and in case any suit or other proceeding which shall be brought on account thereof, will pay all judgments rendered therein. 2.13 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 Willow Ridge WSA l 11"~~j ,~~, l~;~~ l:~t ~"" ;,:1 ~!) ~) ~il j" l 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 (c) 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. 2.15 Easements. For the purposes of this paragraph, the provisions of Marana Code 914-3-7 and any successor or amendatory provisions are incorporated herein as though set forth in full and Developer, except to the extent to do so would be inconsistent with the provisions thereof, is deemed for the purposes hereof to be the Applicant/Customer/Developer described therein. Developer shall provide to Marana recordable easements and required surveying, over, under, and across all portions of the main and pipeline routes as may be necessary to serve each parcel or lot within the Property. If development of the Property involves road construction, all roads and drainage ways will be brought to grade by Developer prior to the commencement of the installation of the Water Facilities. No pavement or curbs shall be installed prior to completion of the Water Facilities. 2.16 Service Lines. Valves. Meters and Meter Service. Developer shall install, to Marana specifications, automated meters, sensors, and the other necessary equipment for automated meter reading for all water services on the Property. For the purposes of this paragraph, the provisions of Marana Code 914-3-6 and any successor or amendatory provisions are incorporated herein as though set forth in full and Developer, except to the extent to do so would be inconsistent with the provisions thereof, is deemed for the purposes hereof to be the Applicant/Customer/Developer described therein. 2.17 No Permanent Structures on Easements. No permanent structures (Le., masonry walls, fences, etc.) shall be constructed on or through a water easement without the express written consent of Marana. For the purposes of this paragraph, the provisions of Marana Code 914-3-7 and any successor or amendatory provisions are incorporated herein as though set forth in full and Developer, except to the extent to do so would be inconsistent with the provisions thereof, is deemed for the purposes hereof to be the Applicant/Customer/Developer described therein. 2.18 Title. All materials installed, Water Facilities constructed and equipment provided by Developer in connection with construction of the Water Facilities under this Agreement and the completed facilities as installed 7 Willow Ridge WSA t ,,~ <If" I::~ l~~ 1:" ".,,~ ~;~ ~:) ~" .~ 1- :2 shall, upon Marana's written acceptance of the same, become the sole property of Marana, and full legal and equitable title thereto shall then be vested in Marana, free and clear of any liens, without the requirement of any written document of transfer to Marana or further acceptance by Marana. Developer agrees to execute or cause to be executed promptly such documents as legal counsel for Marana may request to evidence such conveyance of good and merchantable title to said Water Facilities free and clear of all liens. 3. COSTS OF CONSTRUCTION OF WATER FACILITIES 3.1 Developer shall, at Developer's sole cost and expense, install all the Water Facilities shown on the approved Plans and Specifications, and shall hold Marana free and harmless from any claim for the construction costs or any defects in such Water Facilities subject to the terms of this Agreement. For the purposes of this paragraph, the provisions of Marana Code ~ 14-4 and ~ 14-5 and any successor or amendatory provisions are incorporated herein as though set forth in full and Developer, except to the extent to do so would be inconsistent with the provisions thereof, is deemed for the purposes hereof to be the Applicant/Customer/Developer described therein. 3.2 Upon request by Marana and appropriate direction therefor, Developer shall, at Developer's sole cost and expense, make any and all alterations to any existing water distribution system, either on-site or off-site, necessitated by paving, drainage, or other improvements caused by the development of the Property. 3.3 The Water Facilities shall be transferred to the ownership of Marana upon completion and acceptance by Marana. 3.4 Connection and installation fees shall be collected as set forth in Marana Town Code ~14-7-2, as amended from time to time; provided, however, in consideration of Developer's construction of the Water Facilities, including installing the meters and service lines as specified in Paragraph 2.1 (a) hereof, and provided Developer is not in breach of any provision of this Agreement: (a) Construction of the Work described in Paragraph 2.1 (a) satisfies the Marana water infrastructure impact fee. (b) All cost associated with the installation of meters as listed in Paragraph 2.16 (meter installation) shall be charged at the time building permits are acquired (currently $360 for 5/8" x 3/4" meter). (c) All impact fees as adopted by Mayor and Council shall be paid for by Developer at the time building permits are acquired unless otherwise addressed in this Agreement. SECURITY t "~ ,~'" l~~ ~:,"~t: ~~ 4.1 In accordance with Arizona Revised Statutes and the Marana Municipal Code, this Agreement is contingent upon Developer furnishing Marana I~) :2 lI'I"jPl LII 1. ;;$ 4. 8 Willow Ridge WSA 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. 5.2 Developer agrees to assign to Marana, as a condition of Marana providing water utility service, every portion of its Irrigation or Type 1 Nonirrigation 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. Developer agrees to execute and deliver all forms necessary to effectuate the transfer of these water rights to Marana concurrently with such dedication. 5.3 Marana will provide the State of Arizona Designation of Assured Water Supply status for the Property upon acceptance of the Property into Marana's service area by the Central Arizona Groundwater Replenishment District (CAGRD). Developer shall execute any agreements and file such covenants and restrictions as Marana may deem appropriate to include the Property in Marana's CAGRD service area. Without limiting in any manner Marana's right to specify the terms and conditions governing future water service to the Property, but, as a condition precedent to the Property's right to receive water service from Marana, the owner(s) of the Property shall pay all groundwater replenishment fees and costs incurred in providing water service to the Property. Marana, in its sole discretion, may determine the method of recovering such replenishment fees and costs including, without limitation, through the property tax bill, the water bills, and/or the impact fees of those customers living within the Property. 1 :~~:, t.l, Fi. ;,~~~ 6. TERMINATION OF AGREEMENT/REMEDIES 6.1 If Developer does not complete all of the Water Facilities and Water System construction described in Article 2 within three (3) years from the date of this Agreement, this Agreement shall be null and void, canceled and of no further force and effect. ~:~ ~;t~ ~~11 1, ,,(I 9 Willow Ridge WSA 6.2 Pursuant to A.R.S. 9 38-511, Marana may cancel this Agreement 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 authorized agent of Developer in any capacity or authorized consultant to Developer with respect to the subject matter of this Agreement. Cancellation under this paragraph by Marana shall be effective when written notice from Marana is received by Developer unless the notice specifies a later time. In addition to the right to cancel as provided herein, Marana may recoup any fee or commission paid or due to any person significantly involved in initiating, negotiating, securing, drafting or creating this Agreement on behalf of Marana from Developer arising as the result of this Agreement. 6.3 If Marana fails to timely perform any of its obligations as described in this Agreement, Developer's remedies shall be limited to actual damages sustained by Developer as a result of Marana's breach but not special or consequential damages. 6.4 If either party is in default of any provision of this Agreement, the non- defaulting party, as a condition precedent to its remedies, must give the defaulting party written notice of the default in accordance with the notice requirements of Paragraph 8.1. The defaulting party shall have ten (10) business days from receipt of such notice to cure the default, unless the nature of the defaulting party's obligation is such that more than ten (10) business days may be required for performance then the defaulting party shall not be in default if it commences performance within such ten (10) business day period and thereafter reasonably prosecutes same to completion. If the default is timely cured, this Agreement shall continue in full force and effect. If the default is not timely cured, the non-defaulting party may pursue its applicable remedies set forth herein. 7. INDEMNIFICATION 7.1 With respect to the Water Facilities and Water System constructed pursuant to this Agreement, for a period of one (1) year following Marana's acceptance of the facilities to be dedicated to Marana hereunder, Developer agrees to indemnify, appear, defend and hold harmless the Town (as previously defined) from any and all claims or causes of action which may be asserted against Marana for negligent design or construction of the Water Facilities, and from claims that may be asserted against Marana for inadequate fire protection capacity arising from the negligence of Developer or its employees or agents. NOTICE 'I ~~~: ~::l E3 i~~i 8. 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: ~;~ Il"'~l .:" ':;~~ l ~l: 10 Willow Ridge WSA To Applicant: Marana Water Department Attn: Utilities Director 5100 W. Ina Road Tucson, Arizona 85743-9746 Marana Legal Department 11555 W. Civic Center Drive Marana, Arizona 85653 CPE Development Company, Inc. Attention: Raul Piria 378 N. Main Avenue Tucson, AZ 85701 To Marana: With copy to: 9. SEVERABILITY 9.1 If 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. 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. 11. MISCELLANEOUS 11.1 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. 11.6 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 MARANA. If 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 :~~: ~~;~ b~ !S 11.5 Captions and headings are for index purposes only and shall not be used on construing this Agreement. ~~:~ll ~;;;~ 7' :~:: E" 11 Willow Ridge WSA but shall be in addition to all other remedies available to the Parties at law or in equity. No waiver by Marana of any breach by Developer of any provision of this Agreement nor any failure by Marana to insist on strict performance by Developer of any provision of this Agreement shall in any way be construed to be a waiver of any future or subsequent breach by Developer or bar the right of Marana to insist on strict performance by Developer of the provisions of this Agreement in the future. Developer is an independent contractor and not an agent or employee of Marana. 11.7 This Agreement, and all rights and obligations hereunder, including those regarding water service to Developer, shall be subject to all provisions of the Municipal Code of the Town of Marana and all applicable rates, fees, charges and tariffs of the Marana Water Utility as approved by the Mayor and Council of the Town of Marana now or as they may be changed and approved by the Mayor and Council of the Town of Marana in the future. [Remainder of page intentionally left blank.] 12 Willow Ridge WSA l. Il"'~ '~'l'. ~"' ,t~ ~~j! ~'l li,::llI iI"% ~il~,I:: ~"r .~ l \"'n~11 " IN WITNESS WHEREOF, the parties have hereunto set their hands the day and year first above written. MARAN A: TOWN OF MARAN A, an Arizonaila.mU~iCiP~al corporation By' . t/~&'- . Ed Hon a, ayor APPROVED AS TO FORM ATTEST: DEVELOPER: , INC., STATE OF ARIZONA ) ) ss. COUNTY OF ) This instrument was acknowledged before me this day of \l4hday of ('U)~1~ ,2006 by Raul Pilia, Vice President of CPE DEVELOPMENT COMPA , INC., an Arizona corporation, on behalf of the corporation, as Developer. My Commission Expires: ,. d-.g - 09 9t.l\N'u~~ [)lA)~Dt N tary Public ') -'" . Jeanne M. Hoogerwerf Notary Public . Arizona Pima County My Commission Ex,"," .Mnu..-y 29, 200t ::/, ".,~ .u::., 1:::1: ~~~ 'It'"1! ~::l ~~ '~I l./Ii,,: 7' l I;::~ 13 Willow Ridge WSA EXHIBIT "A" LOCATION MAP OF THE DEVELOPMENT WITH LEGAL DESCRIPTION Block B of Willow Ridge, a subdivision of Pima County, Arizona according to the map or plat thereof of record in the office of the County Recorder of Pima County, Arizona, in Book 60 of Maps and Plats at Page 22 thereof. . .i.-......... ,/ I'r:r OJ/ .( 11..1.-1 ~.j" /' I : : ~I~: ~ - -L.J-...-LJ / /' ""'\!"~~~ I ~.I.'I ,4./ AzrRlOKfOF~--r-+11: /./"../ / I 8XI< 101.PG 151 II ~i~' ././ / ~<<J '.: I / ,( 3'" I I .,'" II ill. I /" I Cll / I I i I II 1-------4:11: I I I II ~ I I / ~IO I ~O'J 1:11 1 / Sa I ,..::Ie ~ ~..,. /' "'<, I II : I .....:lCll \ )---~-+----~ ~-_~ ( ~ 1 ~o :: i: \ 8", :;;1 S~ I 9~ II \ ...::Ie>> lOI I I ,/ ,<<~"I \-~---~1~r-'--~-...I...--------.J' ,~' /, ~ \ f-o lj:l.,! ..~ " \ OM \ 0""," :~l SUIIlMlED /. / ',,..::ItO \ ...:fro .......J~! Slf10MllG / / \ J--------- ~ I "'" ,j , ' 3 ~ ):;;;_:>Y'->$''-''''''i <.> I L-~~/;.:/ ' \, / /1/' ""'. fu. " 11;' rn t:,:ri/J ~ \ 11$/9-< f}/ \ S~ / ! 1:1 to i I [ 1OlIIl"llWWlA._tIIm : f l~l \ I Eo-< I ~-----l:i! , / .9; I i !p..: }.....! _~ I f-o :~I / /' ~\ -- I' Sg :~I / I t, Sir 1 1 [UI /.. I----I~I .. ii" / S~ I ~ l~l 3~ i i -, I 0- :elf------j , I' fg 1-------/ ...1"<1' :~l I I \~I r----.......fUI \,-. 'I: "1 I! , I!: -i II i4if~,.."'t'- ,-" : - ) SllO'JO'1O't 4J8.7G' SI-fiTftOOD AAfA ~ Ill..OCKS 'A,' Nrro 's' PROPERlY ~.D<l FOOT (PER A.Pf'ROVED DfWtW>[ REPORT) .,},4~", AA(A ~ lU?W,l.- N; ....-. "- J6Dl5l'_.!I'CIt.3l1ll1l f)(l$'f. JO' NClIDS, mlOS fMDlf:Nr1lOOlC21PG.2e_ ~ ~-~ ~ 9!(25,pcellMP Willow Ridge WSA --" . SCG/~ 1'; 1(1)' ~ ~- LOlSJl-11JIlk 21,PC~\W' DETAIL "A" s~ ~~I CPE Conau Jtallb, llC 'M5EA$r~y ~~tl5}'ff1 FINAL BLOCK PLAT WILLOW RIDGE ILOCKSA lItIU r ......".-.::,.".......* ..-- PRV-O",,1lUF PAGE Z-2.- Z. "'E 14 ~ ~ :g ~ .. un ..... - ClTINHG. .. .."., ....." -I" 2- " ~, !I~:~I ,,*"' lr~j i:::l: ~., ,,:11 ~\ll ~~~ ,.,~W ,f "I "U" Sl EXHIBIT "B" ENGINEER'S ESTIMATE OPINION OF PROBABLE COST May 25, 2006 DESCRIPTION COST Construct the "l" lone Potable Booster Station Construct an 8" Water Main Connection with a PRV Station in Hartman Lane. Construct 700 lineal feet of 8" main and appurtenances in Camino del Oeste North of Cortaro Farms Road TOTAL COST 15 Willow Ridge WSA PRESENT VALUE $180,000 $165,000 $ 28,000 $373,000 l It"~1 ...~'" f:::~ J:;;;, It;:''l~ !""' ,,:::h -':;'1' ij",,1 fll'p J.:" ~7 "'''I <Ii", 1'"1 ~,:: .