Loading...
HomeMy WebLinkAbout07/27/2010 Study Session Council Agenda Packet«.~.~ f-11~~i ~Ir~ ~~ ~:/ ,,dam ~~ ~,~$~~ MARANA TOWN COUNCIL STUDY SESSION NOTICE & AGENDA COUNCIL CHAMBERS 11555 W. Civic Center Drive, Marana, Arizona 85653 Date: July 27, 2010 Time: 6:00 p.m. Ed Honea ,Mayor Herb Kai, Vice Mayor Russell Clanagan, Council Member e~ ~ Patti Comerford, Council Member Carol McGorray, Council Member Jon Post, Council Member Co ~ ~s Roxanne Ziegler, Council Member ACTION MAY BE TAKEN BY THE COUNCIL ON ANY ITEM LISTED ON THIS AGENDA. Revisions to the agenda can occur up to 24 hours prior to the meeting. Revised agenda items appear in italics. The Council Chambers are wheelchair and handicapped accessible. Any person who, by reason of any disability, is in need of special services as a result of their disability, such as assistive listening devices, agenda materials printed in Braille or large print, a signer for the hearing impaired, etc., will be accommodated. Such special services are available upon prior request to the Town Clerk at least 10 working days prior to the Council meeting. A. CALL TO ORDER/ROLL CALL B. PLEDGE OF ALLEGIANCE C. APPROVAL OF AGENDA ~~ 1 N ~~ D. DISCUSSION/DIRECTION/POSSIBLE ACTION 1. Presentation: Relating to Parks and Recreation; presentation regarding the Town of Marana's 2010 Star Spangled Spectacular (Tom Ellis) 2. Presentation: Relating to Parks and Recreation; presentation regarding the planning for the 2011 Founders' Day event(s) (Tom Ellis) 3. Presentation: Relating to Parks and Recreation; presentation and discussion on the Parks and Recreation Master Plan (Tom Ellis) ~!/~~(/l 4. Presentation: Relating to Development; discussion and direction to town staff concerning the First Am dment to Marana Spectrum Development A reement (Frank Cassidy) /~Z ~ ~ GG2'~j~ ~~ 5. Presentation: Relating to Development; discussion and feedback on developer's proposed draft Marana Regional La dfill Develo m~t Agreement (Frank Cassidy) ~j~ ~ ~~ 1~ C_v ~:D~~fx ~~~ 5ess~n pur~ o A.R S. '~8-431.03 A)~3)~ Council may ask for discussion or consultation for legal advice with the Town Attorney concerning any matter listed on this agenda. E. ADJOURNMENT ~ r- ~- ~- a.~ ; o %~~JP g,~s ~~ ~ ~~ ;_.-_ ~, MAI~A~1A ~~~.~. ~~~~~ i ~~rh.v~«~~st.:. MARANA TOWN COUNCIL STUDY SESSION NOTICE & AGENDA COUNCIL CHAMBERS 11555 W. Civic Center Drive, Marana, Arizona 85653 Date: July 27, 2010 Time: 6:00 p.m. Ed Honea ,Mayor Herb Kai, Vice Mayor Russell Clanagan, Council Member Patti Comerford, Council Member Carol McGorray, Council Member Jon Post, Council Member Roxanne Ziegler, Council Member ACTION MAY BE TAKEN BY THE COUNCIL ON ANY ITEM LISTED ON THIS AGENDA. Revisions to the agenda can occur up to 24 hours prior to the meeting. Revised agenda items appear in italics. The Council Chambers are wheelchair and handicapped accessible. Any person who, by reason of any disability, is in need of special services as a result of their disability, such as assistive listening devices, agenda materials printed in Braille or large print, a signer for the hearing impaired, etc., will be accommodated. Such special services are available upon prior request to the Town Clerk at least 10 working days prior to the Council meeting. A. CALL TO ORDER/ROLL CALL B. PLEDGE OF ALLEGIANCE C. APPROVAL OF AGENDA D. DISCUSSION/DIRECTION/POSSIBLE ACTION 1. Presentation: Relating to Parks and Recreation; presentation regarding the Town of Marana's 2010 Star Spangled Spectacular (Tom Ellis) 2. Presentation: Relating to Parks and Recreation; presentation regarding the planning for the 2011 Founders' Day event(s) (Tom Ellis) 3. Presentation: Relating_to Parks and Recreation; presentation and discussion on the Parks and Recreation Master Plan (Tom Ellis) 4. Presentation: Relating to Development; discussion and direction to town staff concerning the First Amendment to Marana Spectrum Development Agreement (Frank Cassidy) 5. Presentation: Relating to Development; discussion and feedback on developer's proposed draft Marana Regional Landfill Development Agreement (Frank Cassidy) Executive Session -pursuant to A.R.S. §38-431.03(A)(3), Council may ask for discussion or consultation for legal advice with the Town Attorney concerning any matter listed on this agenda. E. ADJOURNMENT ~~~~ ~~~ Trtw!k. ^wt M14Ra!!r 11555 W. CIVIC CENTER DRIVE, MARANA, ARIZONA 85653 COUNCIL CHAMBERS, July 27, 2010, 6:00 PM To: Mayor and Council Item D 1 From: Tom Ellis ,Parks and Recreation Director Strategic Plan Focus Area: Recreation Strategic. Plan Focus Area -Additional Information: An initiative of the Focus Area -Recreation is to "increase visibility and participation by residents and visitors in Marana's signature events. An action strategy for the Parks and Recreation Department is to "incorporate non-Town employees into an event planning committee." Subject: Presentation: Relating to Parks and Recreation; presentation regarding the Town of Marana's 2010 Star Spangled Spectacular Discussion: For the second year, the Town of Marana's Star Spangled Spectacular July 4 celebration featuring the Comcast Fireworks Display was held in the Arizona Pavilions area of Continental Ranch. Building on last year's success, a committee of local business and community leaders joined with Town staff to plan the event. Entertainment venues included the Pines Golf Club, Tower Theatres, Continental Ranch Development, Mathnasium, Texas Road House, and La Quinta Inn. The Crossroads at Silverbell Park and Wade McLean Park were available as firework viewing areas. Red Point Development allowed the fireworks to be launched from their Pines II development site. A debriefing with committee members was held following the event. All businesses contacted reported a significant increase in business, though most agreed that attendance seemed lower than last year. Crowd numbers were not available, but most parking areas were full. The exception was the area in front of the Wal- Mart. The long weekend and the change in launch locations may have influenced the number of attendees. The Pines Golf Club featured music, food, and some vendors. They reported a much larger crowd than expected. Traffic was heavy for a short time, but everyone agreed improvements had been made in traffic circulation over last year. The 2010 committee agreed that they would support the event in 2011. Although the fmal report is not complete, with the generous support of Comcast, the event was delivered well under the town's budget of $20,000. ATTACHMENTS: No Attachments Available Staff Recommendation: Suggested Motion: ~~~~ ~~~~ I0~ bt flR6Ala! 11555 W. CIVIC CENTER DRIVE, MARANA, ARIZONA 85653 COUNCIL CHAMBERS, July 27, 2010, 6:00 PM To: Mayor and Council Item D 2 From: Tom Ellis ,Parks and Recreation Director Strategic Plan Focus Area: Heritage Strategic Plan Focus Area -Additional Information: The goal of the Heritage Strategic Plan Focus Area is "to maintain a sense of community character by linking the past; present, and future." One of the initiatives of the goal is to "incorporate and showcase Marana's heritage in its signature events." An action strategy for the Parks and Recreation Department is to expand Founders' Day to a week-long celebration. Subject: Presentation: Relating to Parks and Recreation; presentation regarding the planning for the 2011 Founders' Day event(s) Discussion: The purpose of this item is to provide the Council with an update; about the ideas and process under consideration for planning the 2011 Founders' Day Celebration. As part of the FY 2011 budget, it was decided that the next Founders' Day Celebration would be held in October 2011 (which means funds will be budgeted for the celebration in FY 2012). That decision resulted in budget savings of approximately $15,000 in FY 2011. There has been community interest and preliminary discussions about reestablishing Founders' Day by expanding the festivities and celebrations that lead up to the traditional one day event. One of the items currently under discussion is linking the Marana High School and Mountain View Homecoming celebrations with Founders' Day events. Additionally, as 2011 kicks off the celebration of the Arizona Centennial, the 2011 Founders' Day event will also serve as the Town of Marana's centennial celebration. An event planning committee made up of business and community leaders is currently being developed. The committee will be charged with producing a week long series of related events celebrating Marana's rich heritage. Participating partners are expected to include: Marana Heritage Conservancy Marana High School Alumni Association Western Heritage Committee Pima County Libraries Marana Chamber of Commerce Community Food Bank Marana Health Center Dove Mountain and Marana Rotary Clubs Local Media Outlets Southern Arizona Arts and Cultural Alliance Santa Cruz Heritage Alliance Friends of the Ironwood Forest Anza Trail Coalition Local Businesses Staff will provide some additional details during the presentation and is seeking feedback from Council Members about additional ideas and/or direction. ATTACHMENTS: No Attachments Available Staff Recommendation: Suggested Motion: ~'~~~ ~~~ ~~~ 11555 W. CIVIC CENTER DRIVE, MARANA, ARIZONA 85653 COUNCIL CHAMBERS, July 27, 2010, 6:00 PM To: Mayor and Council Item D 3 From: Tom Ellis ,Parks and Recreation Director Strategic Plan Focus Area: Recreation Strategic Plan Focus Area -Additional Information: One of the major focus areas of the Strategic Plan is recreation and a key initiative is to identify, undertake and/or complete planning processes for parks, open space, and recreation facilities. The Parks and Recreation Department is tasked with fmalizing the Parks and Recreation Master Plan. Subject: Presentation: Relating to Parks and Recreation; presentation and discussion on the Parks and Recreation Master Plan Discussion: In 2008, the Town of Marana Parks and Recreation staff, with the support of the Parks and Recreation Citizen Advisory Commission (PRCAC), began a project to develop a comprehensive Parks and Recreation Master Plan. The purpose of the plan was to update the existing 2000 Park, Trail and Open Space, System Master Plan and to add a comprehensive overview of parks and recreation in. Marana to include programming, operations, and fmancing. A request for proposals was advertised in February 2008. Four firms were interviewed by a panel of town staff and PRCAC members, and EDAW/AECOM was selected. Work on the plan began in May 2008. From the beginning of the process, the Parks and Recreation Citizen Advisory Commission regularly provided guidance and reviewed progress on the plan as it was developed. Public meetings, focus groups, a telephone survey, the town's Website and town-wide events were all used to reach out to the community for input on programming, recreation, park and open space needs and desires.In addition to community engagement, extensive research was undertaken on recreation facilities, levels of service, funding levels and sources, and management structures and administrative support provided by other jurisdictions similar to Marana. The Parks and Recreation Citizen Advisory Commission chose three southwestern communities. to benchmark. Those communities were Colorado Springs, Colorado, because of its closeness to outdoor recreation; Rio Rancho, New Mexico, because it is similar to Marana in its relationship with a major southwestern city; and Scottsdale, Arizona, because of its recreation programming and western heritage. The results of this benchmarking contributed to the discussion about the levels of services and facilities profiles that are appropriate to Marana, and that would contribute to the town's quality of life and economic activity. During the development of the master plan, the town embarked on a strategic planning process that examined all of the town's functions. A significant outcome of this process was the identification of the natural environment and recreation as a key to the town's economy and quality of life. The Parks and Recreation Master Plan moves the town's Strategic Plan forward. The master plan was also altered to reflect the emerging business model following the world-wide economic crisis that necessitated a greater reliance on partnerships and identification of revenue recovery objectives.Tonight staff will present an overview of the final draft of the Parks and Recreation Master Plan which outlines the vision for the town's "green infrastructure" and identifies specific steps that can be taken over the next 20 years. Additionally staff will address the population and funding assumptions that form the basis for this plan. Staff is seeking council feedback prior to bringing a plan forward for fmal adoption. A copy of the master plan's Executive Summary is attached. The entire document is in excess of 200 pages and can be provided electronically if desired. ATTACHMENTS: Name: Description: Type: Parks and Rec Master Plan Executive Summary Backup Material Master Plan ES.pdf Staff Recommendation: Direct staff to finalize the Parks and Recreation Master Plan, 2010. Suggested Motion: I move to direct staff to finalize the Parks and Recreation Master Plan, 2010, based on the direction provided tonight and to return with a fmal document for council adoption. r -. F v j .~ yea r ~~, +Jjjff/ '`S tt si.` i z ~ i v' f~ .. ~ s~ ,.1 _. .~..` y x3 r n i.u r'"' ') 4t S j 9' ~y C ~~ \ry ~~ F ' !~, 1 ' ~~` ~~ s ~~€ ~ IF. , .ate ~~ E~ ( £= ~ 'K ~ ` ~ ~ ~.., ~ ~1 ~ s~« F ^ Lw E{{... E r `~ iG ;x.~y h4 } ~: 4 ~~ ~. [.~ ~ ~ w ~~t !~ Tt F. ~ . £~w ..~~ r ~: • ~« R4'' ' 3'~"Jx'r F1 :S ~' S 4., K^- .:~ G r L 'ccS .c t~ ~ N a- c~ ~~ ~-- tTS p ~ ~ ~ • ~ ~ ~~ _ ° ,' ~ ~ ` ~ ~~~ ~~ ~ ~ o ~ ~ ~ ~ a as ~ ~ ~ GS ~ ~-. tfy ..,., p {SS 'C7 CU ~ cCf ~ ~ U ~ ~ C ~ ~ ~. ~ p t7 4J ~ t~ ~ ~' cs Lill CC L1 C~ --a CC -~ CCl p -`5 ~- .-~ Lt3 fl~S cu c ~~ ~ o :cs f._ c o .~ ~- ~ cn c a "~S ,^_- } V~ CSS ~ (TS .~ ~ ~_ t `3 C7 sr 0 ca c. m a G U .1. O ~- _L ~.. ter u~ C ~ ~ 4~ C i ~` g 0 cu a c`a `o ~ ra ~ t> ~ ~ ~ = U '~ ~s ~ ~ ~ ~ ~ n a ~ ~ ~. o ~ c ~U p~ a o (~ ~ ~ ° ~ ~ ~ - ~•~~~~~ n'c~ = c kt ~~ G~ ~- ~. ~ © .~ .~ ~ ~ K ~ . ~ ~-~*~ a <ra ~~W ' ~ c ~tt~-cs c~=•~ -. a- ~ ~ ' a ~ ~~~~~oCa v ~ ~ `~ Ct ~ ~a ~% ,- t1~ a Ct} ~ ~ y --- _. ~--~ Ja ,=. ~ ~ ~ ~ ~ ~ ~t1}~eo ~'== C~ ~ , ~~ - •; ~ ;~- o ; :s c> ~- as ~CIC~ ~ ~ ~ c~ c ~ I~~cJ)~a,~ ~..~t~Q •~ ~ W H U /'~ W V d ~O a O ~ O C -O ~ ~ ~ ~ ~ ~ ~ ~ i~.. ~ 4-, ~ Q ~ ~ O u0i p ~ X ~ cn .~ N ~ ~ 30 to ° ° L O 4J U ~ N ~ ~ ~ L ~ O L o-+ N N .-. cv~N a U.O;~'O .C •~ ~ ~ ~'~ cCf N N"O ~ y p Q ` ~ O -O C stn N ~ ~ O U c~ ~ C m ~ ~ O ~ ~ fs. N~s~ L I- iu n. ~ •~ .~ o ~ ~ N O ~ •c ~ ~ ~ a ~ E ~. o c ~~.-~UU L ~ a o>.~ ~. >caL~o cN N ' n (~ ~ L ~-. ~ ~ ~ ~ ~ uy y.- U O O ;«= tip... • v- U 3 ~ ~ -p ~ C N +, N ~ O .,-+ ~' W (~ a~N ~ o ~ ° aiwa, o-~, ~ ~'x ~ >mc°v ~-~ ~ > to ~- ~~•~~ U~rOn~~oc~O~oc~c~ U ~o~~ ~ 'U Q O ~ ~ ~ ~ N ~ N -O O ~ ~ 'L ~ ~ N ~ N ~ ~ ~ ~ ~ ~ ~ O U ~ ~ ~ N C ~ U ~ N O N (~ O Q 't7 ~ ~ ~ O ..O ~ . rn .Q ~ N .C ~ ~ ~ w ~ ~ ~ .-C-. fA ~ ~ N ~ O ro U~ > c cu N rnL U (~ C ~.~ L N ~ ~ L ~ c ccs ~ N O ~ O ~ ~ L v ~ ca ~ O ~ •~ ~ d ~ ~ ~cNOO•~ cOif-c~s~,~=-~N~E ° °~°stcsc°}~o °3E-vi a~ ~,o~~-~o,~~~~~~ co~a~w~ ~cno~ ~avo...~ c.~o.~..>o~`-'ov ~°"aUia~~o N O -~ '~ ~ ~ U ~ N t0/~ (~ a O rn N ~ 'd t6 ~ 'D N "OU j ~ ~•~ c~ o ~a~ ~>,sW o.E " o ~ c~= o ~ ~,a?~ o 0 ~~ Q V O `~" ~ C'CM+ tS3 p 'O fL6 Y ,V3 0 Q. N 0 0 '~ Q O ~. Q ~ C ~ ~ ~ N (~ ~ y.. C ~ Q O. O N '- U N ~ 43 f6 ~ ~ w ~ C tQ {~ O U.. N dJ O C fII N~ O C R N~ Q. ~-' v (p ~ O C O ~ > ~ ~ ~ '~" f6 .~ ~ O ~ ~ O O RS iB O !r (C4 ~ U C ~ ~ "'r C C O 'B 'p ~ 43 .,-~ ~ O ~ ~ 't3 ~ ~ c ~ ~ o a~ °~~ ~ ~ ~o ~ ~ °~`- ~'N ~ vim, a~ o c Q:~ o~c ~ o ~~~ ~~ ~o~~ stn L.r~ ~~ ~ o ~ to cam c~ ~ ~ z~. o :~ E a~ c ~ a _. o~~ca~ ~~ocu~~:~o~~h-.~4-•~ U..o~t~~o ~ yJ L .~.. • ~ ~ (6 ~ O ~ O O O "- ~ t >, O C t[f O in rr1 ~ ~ ~ v O N ~ '~ ~ O ~ Y N ~ U ~ U ~ ~ to N ~ N ~ ~ ~ Q..C N N ~ '+=~ ~ (6 yam., A,. `~- O C?.. O ~ ~ ~ C O Off-' ~ N .N RS ~ ~ (~4 ~' ~ U U~~ U ~ to p N ,U) ,~ 3~ O~ N O~ ~~ -t= N O "~ C N X Y.o~.~c~ Q~•c.cHo~.otn3U3~:-~ H~U~c~~ W V a a ~ OU ~ N N ~ N to ~ +~. 4- ~ C E E i S` N O -N C~ N O ~ S2 ' ` = N +-~ O' U ~ ~ N ~ ~ (15 ~ ~ O O fU ~ 4~ .~ O Z N .O ~ N '~ N ~S+-' Cf--C O ~ ~ N > ~ ~ C flf I- ~ -O ~ C N N O N ~ U U .M T~~ ~~ C~ N~ N O C •C fts ~ C O) ~ O) •~ Q ~ }' O ~ E ~ _ ~ ~ ~ ~-' 0 a L E ~ ~ ~, ~ ~ ~` G ~ ~ ~ O ~ U L O 'W ~ ~_ ~ ~ ~ ~ ~ U ~ ~ ~ ~ E •~ ~ N ~ ~ ~ U E ~ C C C ~ O~~ ~ U N O f4 U p V A C (~ "~ 'fJ tll ~ ZT O fly ~:. O ~~o~~`~~L~~ ~QN Q C U f13-~ O~ N U= O~ .~ C N U iW q C~ N ~ N E U .Q L to ,~ ~ 'Zr3 C ~"' "= 0 ~ "~ T7 +Oj d p N ~ q fi3 N U O t N~ to lU ~ ~ ~ ~ ~ .O O O q 0 ~ ;M C~ U n- p N E O~ ~ O O U C~~ p U~~ N -~ >' C •v fu L v ~ ~ ~ o ~~ ~~ ~ o ~ ~ ~- ~~ v ~ ~ ~~;~ ~ ~ ~ °~ ctis fn .~ ~~~'6~ tL ~ ~~ rn tU ca a~ ~ .~ ~ o O .~ css ~ ~ ;g ~ to O ~ = fU to ~~, > ~ to E N s.. C rn `~ ~ ~ ~ ~ ~ tU z3 ~ L 'a E 'L. ~ ~ p O ft1 ~ U C H N C O O' ~?•,, ~ ~ N L O t6 C fII f4 V ~ v.. O ~ fU > L ~ O O •~ 4- ~ fll O y~'cn~QV ` ~ ~~ f' N ~, ~~ ~ ~ C fA ~ E ~ > O C ~ ~ ~ ~ {O~! 3 ,N O ~ tU6 N L ~ tll _ A~y~ ~ ~ q~U to ~ a~ ~ UvL} c ~ ~ N '_ N O N tU N~ E~ O C fll O v-. C ~ N .C ~v>;~~~~~~0~ cis ~~~ ~..~~~vE~~Na~ ea vet-..«. oo~~-~U~~~~~ ~ Yoa~i ~~..ps=c fU LL LL rn N tII fY U ~ ~- ~ tC6 d ~ II. U „_, O ~ ~ ~ ~ ~ C i2. ~ (SS .~ N (U _ .,O E ~ _ N ~ ~ p C b~A ~ (t3 N C N = U ~ O V A ~ C~ N C ~ ~~ ~„ ~ U O fll (~ ~ ~ v ~ .~ p, C '~ O ,O U ~ L N fII Q ~ ~ ~ N ~ ~ U '~ ~ ~ ~~ E tqn O ~ E ~ O ,a; L3. ~ ~ 'f~ ~ C ~ ~ -p ~ LSS E O E ~ O ~ ~ ~ ~ N O- E C ~ uj (n .Nw O C ~ (U 41 ;~ ~ N ~ O s~ Z3 ~ N i :r O N '~ •U O Q lll ~ ~~ ~ w X ~ U ~ :~ ~ O N N _ p tC1 :~ ~ C ~ ~ U Q N U ,W W C ~ ~ O ` E ~ C ui -C ~ ~ O «7 ~ U ' ~ O ~ C = L~.. U '~ ~ O ~QO'~C O ~ O C~ O ca ~ r ~ a~ ~, :~ ,~ ~ ~ c '~ vi .- ~ ~ sr ~ ~, ~t:ccv~ ~~~^ a ~~~ c~ ~ :r ~ E~ t~ c .~ c ~ N ~ RS aF... ~ .O U N }' rn N i2. O ~ C ~ ~ ~ ~ C ~ fD .ti ~ c~ ~ • V O O •N ~+- ~"' ~ L t6 O to ~ ~ N p~ ~ ~ t6 ~ Z7 Obi ~ ~ f]) ~ ~ ~ ~ `~ tts "C3 ~~~ (ll.C ~ N-- ~ U ~ '++ 'v ~ ~ ,~ p ~ ~ E N ~ .C ~ Q} ~ ~ ~ O ~ ~ ~~~~c ~ v~.~o ~ U ''"' Uj C ffS +r ~ f>S O ~ ~ s1 (tS fll f3.. ~ w ~ ^r •N O ~ ~ ~ ~ ~ ~ f/y C N N W R CtS ~ ~ ~;~' ~ flf ~ y V U+~ ~ N O p C ~ ~~ p v > w"~~~c ~ ~~~~ ~ ~•~ E~ ~ m ~~~« ~ ~ (A~cpioE C7 f-~~Q W N i (U 0 OO cn O N s... ,C O M N t cA t -- ~ (B (n 0 C O~_.. (~ .~ tII ~ C U .~ ~ Q1 M w ~~ ~Zc~ac~Q~C c.~a~'i~o a' O N O ~ ;G ~ ~s~, -a V ~ 'C Q- O C '~tn.~~ QN Q~ ~ N ~>'~ ~ N ~ N O•~ O~ ,C C ~ ~ C ,~~ ~ ~ •~ ~ ~ ~ ~ ~ O E o Q~~E'N~c ~.~a'~c L U> ~O N ~. •~ N C O V .~ U L ~ N ~ U ~ O N ~ t4 ~' O ~ "3 ~ C i U O f6 O „~ (CS ~ C OO ~~ N~ U ~ O ~ "O' •c~ Q U , c6 V ~ ~ C O C C2. '~ '~ '~ ~ O i O N .f] O .C ~ ,~~ ~ON~v~cc~E ~ofa•~E ~ ~ ~ Q- a, U +~'' ~ N ~ ~ rp E ~_ C +~ ~ cn C ~ ~ O Y' N O N U ~ -~ ~ ~ N ~ • V L ~ N ~ i6 ~ .O ~ 'Q ~ ~-. ~ .C~ ~. ~ ~ •~ O Qom. tCj .O N ~ C ~ ~ Q •O N ~= ~ ~ ~ ~ ~ ~ U 'LS ~ 'O (B C 'C vi C3 O' ~ C ~-w~ O'O U E..O ~ C ~`•' U ~ ~ O ~ •~ -C fIf ~ fa O Oil. ~ ~ ~ ~ ON C ~ ~ ~ N Q "'_ fl. O '+r to •w - ~ ~ o~~ ~~~o~NUL c~~~Ui~~ ~ ~~~ ~~cc~s`BOVa~i v,o Q~Q,N~•c '~ 00~ viOa~•>~.,,,yv ~ No ~z3Ecn~.o ~ ~ o ~~ ~ ~~~•~ c c ~;~ ~ a~ U ~ ~~ ~ ~ - >~ ~ .-. ~ o 0 0 ~ c~ c~ ~ ~ p 'a rn I-- ~ ~ ~ ~ ~ o ~ N ~ ~ p ,o O_ CO N w.-. ~ p +_+ i6 ~ d. U w ~ (~ C C ~ F' ~ `' i} t6 ~ ~iia~i cac~a~-a~-~,~fl- N ,~,~.~ c~ ~ c~~~c~O~ ~ c~~ ~ c E ~ w >.`~ o ~~ - o ~ 3 ~ C 'C3 ~ ~ (U C N (n w ~ C ~ ~ "'~ In N > ~ ~ O ~ ~ C ~ C ~ Q ~ _ = O N p ~ "~ a3 ~ (n ~ ~n-~ ~ 0 ~ O~ N-O•N•Q7 >i'~ i U @ Q C_ X ~~ O~.U C!] ~~ C ~+ A C C O p N` (Q O Q ~„ O - a~ to ([f O ttl ~ -O E- Z H ~ ~ (/) 0 ld.. c~ ~ (V ~ ~ > as ~ ~ L' ~ O a"' O w' N c~ V e Q • • • ~ • • • oo C O U v C ~ ~ d ~ ~ ~ 0 O ~ .L N ~ ~lC d ~ Q ~ N ~ k p~ Q ~ ~ °} ~sl- ~ ncica ~ ~ Z c~c~ ~ ~. si W ~, ~o~ SQL c 4 c ~ ~. .~ c4 -o a~ ~ to ~- -~- O a~ ~ v ~. c ~. ,.,, ~c .~ ~ ~ ~ a o~ c ~ ~ ~~ o r~ ~~ r O U a N N~ U to ~- O N~ "- O O O~ N ~ O ~ ~ 'j O ~ ~ ~ .0 (0 ~ ~ `° 0. ~ O.. ~ lL5 jj ~..Q S rn t6 ~ 3 N •vy ~ 0. ~ ~ O Q~ N C ~~ -N ~ N w N 0- ~ ~ ~ Q N N U N "a (0 ~ ~`0+ c~ ~ ~ vi 'Cy 0.00 O ~ N =p t0 (0 p G N ` Q U O >+ p ~N ~ U ~ O f U~ O.. ~ ~ O~~ (U~" ~ ac~ N~ O cv ~ ~ ~ ~ Q ~ Q ,~ ~ ~ ~ ~ ~ '~ ~ G ~ O N-c `~ ~ ~ 4 ~ Q. •~ ~ qGj vii o O N V O O1 O~ C +r oa~c ~~ n~ ~~v,~~U ~ ~~ ~ ~ N vi G "c3 .~. cOi ~ ~ N ~ ~~,cQL- ~c~.cY ~~G~~~ cv a1 •ur ~ ~- „~ uS ~ ,~ N p ~ ~ • c N ~~ ~:~~ ~ ~~ m ~~ ~ c~ G c N' ~ o ~'~ c ca o,~•~ ~;a ~ •N 0 4 4~C O C U! y •~ ~ m~ C cU N~~ U O •~_ O~ cp C G L '~ tU N Q- O~ .x G~ U~ ~ N~ N O~ N~~ N Y O `U~~, N ~~....N •U C O O -a -p ~ i ~U ~ ~ RS (S3 y 'a G ~ .•-~ t6 "O (t1 N ~ ~ ~a- V1 .~ N ~ N ' •C 0. ~? ~ ~ ~ ~ N N '~ O N ~ .~ ~.., ~ ~ U G ~ C L. N ~ ~ QS O R3 v0- N p ~ .~ t0 c0 ~ 0; ~ Q 0- ~ ~i6 ~ ~ -fa C N N ~ ~ v N ~ ~ C~~~ V~ N ~ ~U ~4 co"~ ~Q ~o'GZL~ o.C~tn ~cuE~~~ C cn (U ~ ~ ~ s-- ,~ N >, O C ~ .C t0 ~ N to N ~ O N O ++ H~~ N~ ~ ~ Q ~ .~ U m ~ ~ ~ ~ ~ U ~ ~ C~ O~ .G d`~ p L 0. O~ G U ~ r ~ ~' N N O O ~ •*'' ~ U ~' O to N U 03 t4 ~ •tn U V! ~ O7 ~ ,,,,,, ~ ~,., to Y N ~ ~ C ~ -- ~ .~.. cat ~ ~ ~ ~ L -a ~ -~ > ° c ~ ~ Goo ~ °~ ~ ~ ~ ~_ to ~ ~ ~ ~ U tl. ~ t6 a C ~ fA ++ C C ~ (U ~ ~ ~ ~ O ~ "'" d~ N 'S ~ to C N C ~ N ~ i0 ~ ~ N.•6 ~ ~ t ~ 'V ~ ~ +~ O N ~ ~' N N O~ Q N~ w ~ N Q,C ~ u O O N G ~~ t6 N O .~ ~ i fSf U C~ ~ `+ N ~ G ~ co G C ~ +J (CS O Q- j ~ CL ~ N ~ N ~ Rf ~ ~+ ~ a~co t6~"'~ N QUjZ+~' j C 0' '~- N O p x Z7 N` 0. N ~ t~4 ` ~ ~ f0 O Q ~ ~•N C C~~,, ~~ U3 C Ap N C __ ~ G t4 Q -p c~ c`~t ~ ~ c O O ~ Q~ ~~ L ~; c~ .~ (L U O .~. a .a? rn~o >~~;a~~i ~~~~ ate- o>.-p a~~N~ O W N N ~'`= ~ ~~ c 0 0 C O L E U 'O ~ 'II O .;~ O N ''j N :4+ tU .0 Q ~ t4 .C N C ~ ~ O ~ N ~ ~ ~ ~ G ca O a, Q. ~ ~ N E O O N N '~ °~ .C ~ O N ~ C ~ ,~ Vi N O N (ll O N N~ Q O C0 ~ ~ O H O U ,~ ~ ~ O '-= ~ O O L2. RS N ~ c0 ~~ ~ O- C ~ ~' V d ~ ~ ~ O a} ~ C N ~' ~ (0 ~ U ~ V.c •~ .O '~ ~~~ ~a~LL';~ ~~~~ ~ ~ ~ C cn CS ~ ~ N N .G ~ to O ~~ ..U ~ >' G ~ G O ~ G cad Q ~ N ~ ~ ~ O O ~ U ~ 'O +-' Q .~C G '~` O> ~ W ~ ~ O O RT p Q ~ Cl~ p C as ~ O~ O p w vi Of' G ~,Ow. ~ O U;~,~ ~ ~ iNjy = ~ Q. ,~ N Q a O ~ U ~ aoa~° cni--~~n O~Q~v~ w -v~Ya~~v'c~~c~ ca o c ~~a~o~~U~~ ~ u, .~~~~~~p~C7~ cca o cu ~ ~- ~ .p O ,~ c> zs p- ~ .O ~ a~ Q o~~ o> w o 3 c ~ ~ ~ ~ ~~~ uS ~~pa~~RS~c~is~ o w c~~~Q~~~aiQ a~i c0 cri O ~ ~ ~ ~ .O p ~ ~ ~ p ~ O -p O ~ p ~ ~ ~ ~ O ~ ~" ~ ~ C m d: N U ~ _ O ~ ~ O f~ ~ ~+ fi tL5 O O X11 Q cv d N 0~ c~II O N O O K ~ N~ O p a O O ~ ~ O "C c6 ~ ~ ~ ,~ CB N Q ~ !n C ~ > ~ ~ U. ~ N ~ to Q O F- (6 ~-O.. v`-- ~ U to ~ C U ~ ~-O•~~ .C (6 c~0 ~ ~ U O ~ (Cl N ~`.' ~ +~ U ~ to L2 (~ N +0.~ ~ ~ ~ O U ~ ~ ~ ~ O ~ O}~ H U ~ 0 0~ N~~ p 0 0 0 ~ ~ L o ~ ~ ~ '~ c U F- ~ f1. ~ OM ~ U ~ N ~+~~.. O ~ ~ ~ ~ Q O M Y "CS ~ O ~ sU.. ~ ~ (U U Q- Q} (0 Ct ~.~~~~~~~~~,~ a ~ 0 .`~Q.O>v~v~~c c ~ ~~~o~~o°~~~ ~ v v cpQ-QQ~~'c_~ "_ ~ N s c o c cv N ~ '~ ~ -p ~.. C ~ .~ O ~ ~ O ~ N t; O ~ O (0 ~ -+-+ O >+ -O t6 ~ ~ Ci 'C3 ~ (Q N X ~ ~ V1 ~ cA .Q O ~ p ''~-' ~ U ~ •CT fCf p .~ N (~ cis +- O O ~ ~.. ~ O ~ ~ C A O ~ O u) ~~ U~ ~ ~ ~ ~ to ~ L ~ p U ~ ~? O as '~', y_ .~ t~ U~ ~_ ~~ U cN~ 3 U N •U LL ~ C Q ~ C ~ ~ ~ C CCf W CL' W ~••` ~A~I~A Ttt~lY ~N Wikt.?it. 11555 W. CIVIC CENTER DRIVE, MARANA, ARIZONA 85653 COUNCIL CHAMBERS, July 27, 2010, 6:00 PM To: Mayor and Council Item D 4 From: Frank Cassidy ,Town Attorney Strategic Plan Focus Area: Commerce Subject: Presentation: Relating to Development; discussion and direction to town staff concerning the First Amendment to Marana Spectrum Development Agreement Discussion: On December 18, 2007, the Mayor and Council adopted Marana Resolution No. 2007-229, approving and authorizing the Mayor to sign the Marana Spectrum Development Agreement. Town staff has been in negotiations with the Marana Spectrum project's Owner/Developer to modify the terms of the original DA. The Owner/Developer needs the amendment to allow additional time for construction of the development project during the current economic downturn. Town staff has expressed a willingness to recommend flexibility with the project construction date, as long as the Owner/Developer makes an up-front payment of Twin Peaks Traffic Interchange and other related public improvements costs benefiting the Marana Spectrum project, and as long as interest does not accrue on that up-front payment until the development project is open for business. Attached is the current draft of the proposed first amendment to the Marana Spectrum DA for the Council's review. and feedback. In addition to the key items addressed in the preceding paragraph, this draft makes various other clarifying revisions to the Marana Spectrum DA. Pending Council feedback during this study session, staff plans to bring the first amendment to the Marana Spectrum DA back to Council for consideration and possible adoption at its August 17 meeting. Financial Impact: Amendment of the Marana Spectrum DA will facilitate the Owner/Developer's payment of Twin Peaks TI funding programmed into the Town's CIP budget and will extend the sales tax reimbursement period to December 31, 2040 at the latest. ATTACHMENTS: Name: Description: Type: First Amendment to Marana Spectrum Marana Spectrum DA First Amendment Backup Material DA Clean.doc Replacement Revised Exhibit C to Marana Spectrum Backup Material Exhibit C C 1 ~df DA Staff Recommendation: Subject to Council's comments, corrections, revisions, and feedback, Town staff recommends that the First Amendment to Marana Spectrum Development Agreement be placed on the August 17 Council agenda for consideration and possible adoption. Suggested Motion: I move that the First Amendment to Marana Spectrum Development Agreement be placed on the August 17 Council agenda for consideration and possible adoption. FIRST AMENDMENT TO MARANA SPECTRUM DEVELOPMENT AGREEMENT TOWN OF MARANA, ARIZONA This First Amendment to Marana Spectrum Development Agreement (this "Amendment") is entered into by and between the TOWN OF MARANA, an Arizona municipal corporation (the "Town") and KIMCO MARANA L.P., a Delaware limited partnership, formerly known as Kimco Barclay Marana, L.P. (the "Owner/Developer"). The Town and the Owner/Developer are collectively referred to in this Agreement as the "Parties," and each is sometimes individually referred to as a "Party." RECITALS A. Owner/Developer and the Town are parties to that certain Marana Spectrum Development Agreement, dated December 22, 2007, a copy of which was recorded at Docket 13211, Page 951, in the records of Pima County, Arizona, on December 28, 2007 (the "Agreement"). B. The Town adopted the Agreement by Marana Resolution No. 2007-229, dated December 18, 2007 (the "Resolution"). C. Pursuant to that certain Assignment of Partnership Interest in Kimco Barclay Marana, L.P. (the Assignment"), Barclay Holdings XLVIII, LLC, an Arizona limited liability company ("Barclay") assigned to Kimco Developers, Inc., a Delaware corporation ("Kimco") all of Barclays right, title and interest in and to Owner/Developer. The Amendment evidencing the Assignment was filed with the Arizona Secretary of State on September 18, 2009, as File No. 3007118. D. The Parties now desire to amend the Agreement in accordance with the terms and conditions set forth below. AGREEMENT NOW, THEREFORE, in consideration of the mutual promises made in this Amendment, the Parties agree as follows. 1. Incorporation of the Recitals. The foregoing Recitals are incorporated herein by this reference. 1 2. Initial Development Plan. The following words are hereby deleted from Section 2.3 of the Agreement: "within 36 months of the date the Interchange is completed by the Arizona Department of Transportation and first open for vehicular traffic and use by the general public" are hereby deleted from Section 2.3 of the Agreement." 3. Minimum Construction Obli ag tion. Section 2.4 of the Agreement is hereby deleted. 4. Public Improvements Construction and Reimbursement. Section 3.1.2 of the Agreement is hereby deleted, and the following is inserted in its place. 3.1.2 Reimburse the Town $4,467,281.33, which is the Public Improvement Costs for the Public Improvements which have now been completed by the Town, as detailed on Exhibit C1 (attached to this Amendment), which reimbursement shall occur within sixty (60) days following the opening of the Interchange for vehicular traffic and use by the general public. 5. Reimbursement Amount. The first line of Section 6.1.2 of the Agreement is hereby deleted, and the following is inserted in its place: "From and after the issuance of certificates of occupancy for the Initial Minimum Improvements," 6. Reimbursement Account. Section 6.2.1 of the Agreement is hereby deleted, and the following inserted in its place. 6.2.1. The expiration of this Agreement, as described in Section 8.1 as modified by this Amendment. 7. Other Impact Fees. The words "the ninth anniversary of the Effective Date of this Agreement" are hereby deleted from the last line of Section 5.2 of the Agreement, and the following are inserted in their place: "the ninth anniversary of the "Amendment Effective Date" as defined below in this Amendment." 8. Development Regulations. The words "for a period of five years from Effective Date of this Agreement" shall be deleted from the fifth sentence of Section 2.1 of the Agreement, and the following is inserted in their place: "until the expiration of this Agreement." In addition, the penultimate sentence of Section 2.1 of the Agreement is hereby deleted, and the following is inserted in its place: "The immediately preceding sentence shall terminate on the expiration of this Agreement." 9. Owner/Developer's Environmental Mitigation Contribution. The following is hereby added to the conclusion of Article 4 of the Agreement: "Owner/Developer shall make such payment concurrently with the issuance of certificates of occupancy for all the Initial Minimum Improvements." 2 10. Term. The second sentence of Section 8.1 of the Agreement is hereby deleted, and the following inserted in its place. The term of this Agreement shall begin on the Effective Date and, unless sooner terminated by the mutual consent of the Parties, shall automatically terminate and shall thereafter be void for all purposes on the earliest of the following: (a) when the total amount of all Reimbursement Payments (see Section 6.4 above) equals Thirty Million Dollars ($30,000,000), or (b) on December 31 immediately following the twentieth anniversary of the issuance of all certificates of occupancy for the Initial Minimum Improvements, or (ii) on December 31, 2040. 11. Notices and Filings. The notices addresses for the Owner/Developer are hereby deleted, and the following inserted in their place. Kimco Marana L.P. 3535 Factoria Blvd., Suite 520 Bellevue, Washington 98006 Attn: BiII Brown with a copy to: Kimco Realty Corporation 3333 New Hyde Park Road New Hyde Park, New York 11042-0020 Attn: Legal Department 12. Anchor Tenant's Ability to Develop Anchor Tenant Parcel. The following is hereby added to the end of Section 2.7: "Any Anchor Tenant's rights under this Section 2.7 shall not be affected by the First Amendment to Marana Spectrum Development Agreement." 13. Exhibit "C." Exhibit "C" to the Agreement is hereby deleted in its entirety, and the Exhibit "C" and Exhibit "C-1 "attached to this Amendment is inserted in its place. 14. Public Improvements. The definition of "Public Improvements" in Section 1.3.13 of the Agreement is hereby modified to be: "means the improvements described on Exhibit C and Exhibit C-1 attached to this Agreement (see paragraph 3.1 below)." 15. Town Construction. The following is hereby added to the end of Section 3.3 of the Agreement: "The Town has completed construction of the Public Improvements as set forth on Exhibit C-1." 16. Miscellaneous. The balance of the Agreement is hereby amended to reflect the purpose of this Amendment. The parties hereto acknowledge that except as expressly modified hereby, the Agreement remains unmodified and in full force and effect. In the event of any conflict or inconsistency between the terms of this Amendment and the Agreement, 3 the terms of this Amendment shall control. Unless otherwise expressly defined herein, terms in this Amendment shall have the same meanings assigned to such terms in the Agreement. All exhibits attached hereto are incorporated herein. This Amendment may be executed simultaneously or in counterparts, each of which shall be deemed an original, but a1T of which together shall constitute one and the same agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last date set forth below their respective signatures (the "Amendment Effective Date") TOWN: THE TOWN OF MARANA, an Arizona municipal corporation By: Mayor OWNER/DEVELOPER: KIMCO MARANA L.P., a Delaware limited partnership By: KD Marana 1553, Inc., a Delaware corporation, its general partner By: Attest: Its: . Clerk Approved as to form: Frank Cassidy, Town Attorney 4 STATE OF ) ss. COUNTY OF ) The foregoing First Amendment was acknowledged before me, a Notary Public, this day of 2010, by as of KD Marana 1553, Inc., a Delaware corporation, as general partner of Kimco Marana L.P., a Delaware limited partnership, who being authorized to do so, executed the foregoing First Amendment on behalf of said entity for the purposes stated therein. Notary Public My Commission Expires: STATE OF ARIZONA ) ss. COUNTY OF PIMA ) The foregoing First Amendment was acknowledged before me, a Notary Public, this day of 2010, by and the and respectively of the Town of Marana, a political subdivision of the State of Arizona, who being authorized to do so, executed the foregoing Agreement on behalf of the Town for the purposes stated therein. Notary Public My Commission Expires: 5 Exhibit C -Amended Scope of Work Marana Spectrum Drainage 1300 cfs Drainage Channel Excavation GabionlShot Crete Lining Landscaping Transition at Railway Drop Structures/Grade Control 800 cfs Drainage Channel Excavation Concrete Structural Lining 1,100 cfs Wash Enclosure 1100 cfs wash enclosure {con-arch or CSP equivalent to twin 5x7 box) 1100 cfs open channel d/s of Twin Peaks Utility Relocations d/s of Twin Peaks 1100 cfs Wash Culvert Road Building Bus Pullout Traffic Signals at Lee Driveway Traffic Signals at Twin Peaks mid-block Deceleration Lanes Water Supply/Fire Protection Fire Storage Tank (840,000 gallon) Land for Storage Tank New 12"parallel well feed from site to existing Town storage Tank New Well Feed on Twin Peaks (formerly Camino De Mafiana) and Linda Vista (24" ductile iron) New Hydrants on Linda Vista and Twin Peaks PRV at Z-Zone Booster Station-Hartman Vista Reservoir Site Exhibit C Amended Page 1 of 2 Exhibit C -Amended Public Sewer Improvements Reconstruct public 10" to 12" Oasis Hills Outfall New public 8" sub-trunk to SE property corner per Pima County New public 15" sewer to south west property limits New steel sleeve at Twin Peaks Crossing New 15" public sewer crossing Twin Peaks to existing manhole Offsite Regional Trunk Sewer Improvements Summary of Public Improvements Marana Spectrum '7/20/2010 Good Faith Estimate Item Total Developer Cost Drainage $6,580,000.00 Road Buildin $940,000.00 Water Supply/Fire Protection $1,901,281.00 Sewer Improvements $1,050,000.00 Total $10,471,281.00 Consulting 15% Contingency 10% See Exhibit C1 for public improvement costs constructed by the Town of Marana Exhibit C Amended Page 2 of 2 Exhibit C1 Public Improvements Constructed by Marana itciu;`~No '1 ltemI~esenpfion 1 ~,t iln~t r~,~ Qlii~_ntttti Un~tPr-ce ~'.Amoun't r~`' 2030301 ROADWAY EXCAVATION CU.YD. 250 2 $500.00 2030901 BORROW CU.YD. 36690 6.7 $245,823.00 2090005 FURNISH WATER M.GAL. 8000 9 $72,000.00 3030022 AGGREGATE BASE, CLASS 2 CU.YD. 1269 21 $26,649.00 4010010 PORTLAND CEMENT CONCRETE PAVEMENT 10" SQ YD 4223 33 $139,359.00 4040111 BITUMINOUS TACK COAT TON 7 460 $3,220.00 4040116 APPLY BITUMNOUS TACK COAT HOUR 14 130 $1,820.00 4040282 ASPHALT BINDER (PG 76-16) TON 77 480 $36,960.00 4060006 ASPHALTIC CONCRETE (3/4" MIX) TON 1613 26 $41,938.00 4060026 MINERAL ADMIXTURE OR 3/4" MIX TON 16 90 $1,440.00 4140040 ASPHALTIC CONCRETE FRICTION COURSE ASPHALT-RUBBER TON 233 35 $8,155.00 4140042 ASPHALT RUBBER MATERIAL (FOR AR- ACFC TON 19 530 $10,070.00 4140044 MINERAL ADMIXTURE OR AR-ACFC TON 2 90 $180.00 5019008. PIPE(30"xSTEEL){SLEEVE) L.FT. 330 215 $70,950.00 7010003 MAINTENANCE AND PROTECTION OF TRAFFIC -10 42" SEWER SLEEVE L.SUM 1 10000 $10,000.00 7040070 PAVEMENT MARKING (WHITE THERMOPLASTIC XTRUDED 0.090" L.FT. 2268 0.25 $567.00 7040074 PAVEMENT SYMBOL (EXTRUDED THERMOPLASTIC ALKYD 0.090" EACH 6 100 $600.00 7060013 PAVEMENT MARKER, RAISED TYPE C EACH 15 2.65 $39.75 7060018 PAVEMENT MARKE RAISED, TYPE G EACH 176 2.65 $466.40 7080301 PAINT BULL NOSE EACH 3 75 $225.00 7320070 ELECTRICAL CONDUIT (3") (PVC) L.FT. 2385 4.5 $10,732.50 7320090 ELECTRICAL CONDUIT (4") (PVC) L.FT. 2986 8 $23,888.00 7320440 PULL BOX (NO. S) {C.O.T. & P.C. STD DETAIL T.S. 1-2 EACH 2 450 $900.00 7320450 PULL BOX (N0.7) (C.O.T. & P.C. STD DETAII, T.S. i-4 EACH 2 600 $1,200.00 7320451 PULL BOX (N0.7) (WITH EXTENSION) C.O.T. & P.C. STD DETAIL T.S. i-5 EACH 8 700 $5,600.00 8080285 PIPE (PVC) (6") (SCHEDULE 40) L.FT. 3585 4.2 $15,057.00 8081242 PIPE, STEEL (42") L.FT. 754 365 $275,210.00 9080401 CONCRETE HEADER L.FT. 14 10 $140.00 9140155 RETAINING WALL (MSE) SQ.FT. 1340 37 $49,580.00 9210012 MEDIAN PAVING CONCRETE PAVERS S .YD. 235 57 $13,395.00 ROADWAY TOTAL $1066 664.65 Exhibit C1 Page 1 of 4 Exhibit C1 Public Improvements Constructed by Marana It~ruNo ,_ ~on~l ^" k~ ~-, ~~~ ~Y Quantity, Uut Pr~e'e , ~ `Amount Bridge F - I-10/TWIN PEAKS ROAD TI UNDERPASS 6011371F APPROACH SLAB (SD 2.01) SQ.FT. 720 16 $l 1,520.00 6011372F ANCHOR SLAB (TYPE 1) (SD 2.02) SQ.FT. 1080 13 $14,040.00 9999912A LUMP SUM ride S .FT. 5232 123.32 $645,210.24 9999903F LUMP SUM STRUCTURE (TOTAL OF PRECEEDING STRUCTURE TTEMS $670,770.24 Bridge H -TWIN PEAKS ROAD -UPRR OVERPASS 6011371H APPROACH SLAB (SD 2.01) SQ.FT. 720 16 $11,520.00 6011372H ANCHOR SLAB (TYPE I) (SD 2.02) SQ.FT, 720 13 $9,360.00 9999912A LUMP SUM Bridge) SQ.FT. 5418 164.52 $891,369.36 9999903H LUMP SUM STRUCTURE (TOTAL OF PRECEEDING STRUCTURE ITEMS $912,249.36 BRIDGE STRUCTURE TOTAL = $1 583 019.60 ~~i ~-'~Y Box Culvert R -TWIN PEAKS Sta 111+62 ~ . s" 34 t 2030501R STRUCTURAL EXCAVATION CU.YD. 5020 5 $25,100.00 2030506R STRUCTURE BACKFILL CU.YD. 1585 21 $33 285.00 6010002R STRUCTURAL CONCRETE (CLASS S) 'C=3 000 PS CU.YD. 772 190 $146,680.00 6050002R REINFORCING STEEL LB 112350 0.6 $67,410.00 9999903R LUMP SUM STRUCTURE (TOTAL OF PRECEEDING STRUCTURE ITEMS $272,475.00 DRAINAGE BOX CULVERT TOTAL = $272 475.00 Exhibit C1 Page 2 of 4 Exhibit C1 Public Improvements Constructed by Marana ~'='~.., v~v' ~-vyv TOWN OF MARAIVA Camino De Man'ana 16" Z-Zone Water Main Linda vssta Boulevard to Tangerine Road Town of Marana Project No. 2010-3Q0-UU5 WATER CaMP.E8TIMATE #2 PROJECT,NO:: 201'000.005 NAME: CAMINO DE.MANANA t DOVE MOUNTAIN HOIlLEVARD EISTENStON WATER LINE ANp BQOSTER STATIONS CONTRACTOR: @ORDERLANO CONSTRUCTN)N COMPANY, INC. CAMINO DE MAAANA -16" Z-ZONE WATER MAIN TMAR/1NA SPEGTRlIMb - MNO~' QESCRIPTION QTY - UM' ~ UNR610- TOTIILBW 1 32" STEEL CASING (.375 VNACL) 85 lF $150:89' $14,334.55. 2 32" STEEL CASI ' G (.375 YN LL)(DOVE MO AIN EXTENSIQ 260 $124,12 $32,271.:20. 3 16" CL-250 DIP WATER. 7,7.32 LF $IB6;93 $517,502,76 . 4 16° BUTTERFLY VALVE , , _ _. 1.1 EACH ` $3,474:87 $38,223:57. 5 12" GL-350 DIP iNATER~!IRI AT DESER FALCON 240 LF $80:81 $19,394.40:: fi 12" GATE VALVE'(INCLUDING STUBS). 1 EACH $2,457;80- $2,457.8Q T 8" CL-3a0 DLP WATERMAIIN 494- LF $49.:89 $24,6¢5:66` 8 $" GATE VALVE 7 EACH $1,459:68- $10,217.76- 9 2" COMBINATION AIR RELEASE VALVE 2 EAGH $2,6$2, $5,365:20,;. 10 2" DRA N VALVE ASSEM L 6 EACH $1,276;60 $7,659.60 11 CORROSIONTESTSTATION 6 EACH $672:21 $4,0.33:28 12 : 3 01NTBONDING 4.39 EACH $60.6,5 $26,625.35 13. CORROSION REPORT 1 EACH: $3,000.00: $3;000.QO 14.. CO . ECT Tf3 EXISTING 1 EACH $2,957.80- $2;Q$7.80 15; , . CLEAR RIGHT-OF-WAY 1 ACRE: $2,530:Q0 $1,2fi5:00" 1B' : SURVEY 1 LS $16,400:00 $18,400.00 iT TESTING' 1 LS $12,765;Q0 $12,765.00. 18 . BONA 1 LS $8,03:1;51.- $6;031.51 . 19 SALES TAX.. 1 LS $63,593:55 $63,593;55.. 20 GENERAL JOB EXP. EN.SE 8 COMPANY OVERHEAD- ... 1 LS $158;393:17 $0.00 CQNIPANYOVERNEAD'.. _ 1 LS '$75,145;17 : $75,145.17 CONSTRUCTION WATER... 1 LS $4,800.00 _ $4,80A.00 CLEAN UP 1' LS $950.00 $950:00. M081UZATION 40 NR $154.70 $6,188:00 P ORTABLE TOILET 8 MO $10Qs00 $750:00 S UPERVISL.ON 30 WK $2;350:00 $70,500;00 21 C ONTRACTORS F.EE, . 1 LS $66,370:93 $66,370:93 22 O WNERS CONTINGENCY-S% 1 LS $54;627.40 $51,627.40 TO AL.i6" Z;ZONE ATER MAIN 1.,084,1ZS,47 Exhibit C1 Page 3 of 4 Exhibit C1 Public Improvements Constructed by Marana ~4 ~ ~m .. o > . ~ ~ ~ ~ 5 nt-ty 17n~~rc ~~, t5 ,~ ~ r x _ ROADWAY, BRIDGE STRUCTURE AND $2,922,159.25 DRAINAGE BOX CULVERT TOTAL = 9240170 CONTRACTOR QUALITY CONTROL (1%) L.SUM 1 29221.5925 $29,221.59 9250001 CONSTRUCTION SURVEYING AND L.SUM 1 58443.185 $58,443.19 LAYOUT 2% CONSTRUCTION ENGINEERING 9% Cost $262,994.33 BITUMINOUS. MATERIAL (LIQUID ASPHALT) ESCALATION PROVISIONS Cost $58,443.19 2% FUEL ESCALATION ADJUSTMENT (0.2%) Cost $5,844.32 OTHER PROJECT COSTS TOTAL = $414,946.61 TOTAL COST ATTRIBUTABLE TO $3,337,105.86 CONSTRUCTION = DESIGN COSTS TO INCORPORATE $20,000.00 CHANGES = TOTAL COST -TWIN PEAKS $3,357,105.86 INTERCHANGE PROJECT = \. - h _ .k~ CAMINO DE MANANA GMP CHANGE ORDER FROM 51,084,175.47 BORDERLAND FOR 16" WATER MAIN = WATER LINE DESIGN BY WESTLAND RESOURCES 59,000.00 CONSTRUCTION INSPECTION AND AS-BUILTING BY WESTLAND RESOURCES $17,000.00 TOTAL COST - CAMINO DE MANANA PROJECT = $1,110,175.47 TOTAL PUBLIC IMPROVEMENT COSTS -TOWN OF MARANA = $4,467,281.33 Exhibit C1 Page 4 of 4 ~~r ~~~ r-! 11555 W. CIVIC CENTER DRIVE, MARANA, ARIZONA 85653 COUNCIL CHAMBERS, July 27, 2010, 6:00 PM To: Mayor and Council Item D 5 From: Frank Cassidy ,Town Attorney Strategic Plan Focus Area: Commerce Subject: Presentation: Relating to Development; discussion and feedback on developer's proposed draft Marana Regional Landfill Development Agreement Discussion: The Marana Regional Landfill Development Agreement as proposed by the developer is provided for the Town Council's feedback and discussion. During the Council study session, town staff plans to provide an overview of the key deal and discussion points and recommended staff revisions. ATTACHMENTS: Name: Description: Type: DKL -Marana - Development DKL Proposed Landfill DA Backup Material Agreement 7- 21.DOC Staff Recommendation: Town staff recommends that the Marana Regional Landfill Development Agreement be brought back for a second study session on August 10, with revisions consistent with Council's direction and discussion at this meeting. Suggested Motion: I move that the Marana Regional Landfill Development Agreement be brought back for a second study session on August 10, with revisions consistent with Council's direction and discussion at this meeting. DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT ("Agreement") is entered into this _ day of , 2010, by and among TOWN OF MARANA, ARIZONA, a municipal corporation. (the "Town"), DKL HOLDINGS, INC., a Delaware corporation ("Developer"), and H. KAI FAMILY NG1, L.L.C., an Arizona limited liability company ("Seller"). RECITALS A. Pursuant to the provisions of that certain Agreement for the Sale of Real Property and Joint Escrow Instructions dated as of December 14, 2009 between Seller and Developer (the "Purchase Agreement"), Developer has contracted to purchase from Seller that certain real property located within Pima County, Arizona, more particularly described in Exhibit A attached hereto and referred to as the "Property." B. Developer intends to develop the Property as a municipal solid waste landfill and related facilities known as the Marana Regional Landfill (the "Landfill") in accordance with the Specific Plan (defined below) and this Agreement. C. The parties acknowledge that the Landfill is consistent with the Town's General Plan and .Strategic Plan, as of the date this Agreement is executed [A.R.S. § 9-SOO.OS.B]. D. The Marana Regional Landfill Specific Plan as .approved on , 2010 and prepared by The Planning Center, attached hereto as Exhibit B, as amended or modified, constitutes the "Specific Plan." E. The parties hereto desire to enter into this Agreement to set forth their understandings and agreements regarding development and operation of the Landfill. This Agreement is a development agreement within the meaning of and pursuant to A.R.S. § 9-500.05. NOW, THEREFORE, in consideration of the premises and the mutual obligations of the parties hereto, the parties agree as set forth below: 1. Incorporation of Recitals and Exhibits. The forgoing recitals and all exhibits attached hereto are incorporated by this reference as though fully set forth herein. 2. Definitions. The following terms shall have the meanings set forth below whenever used in this Agreement, except where the context clearly indicates otherwise: (a) "ADEQ" means Arizona Department of Environmental Quality or any successor agency of the State of Arizona exercising regulatory authority over the Landfill similar to that currently exercised by ADEQ. (b) "Base Index" means: (i) for the CPI Less Energy adjustment to the Host Fees under Section 18, (A) for the first Review Date, the CPI Less Energy for the calendar month and calendar year during which the Opening Day occurs, and (B) for each subsequent Review Date, the CPI Less Energy for the same calendar month of the calendar year of the prior Review Date; and 11055298.11 (ii) for the CPI adjustment to the Vehicle Flat Fee under Section 20, (A) for the first Review Date, the CPI for the calendar month and calendar year during which the Opening Day occurs, and (B) for each subsequent Review Date, the CPI for the same calendar month of the calendar year of the prior Review Date. (c) "Closing Day" means the last day on which the Landfill is open to receive Waste. (d) "CPI" means the consumer price index compiled and published by the United States Department of Labor, Bureau of Labor Statistics, designated Consumer Price Index -All Urban Consumers (CPI-U) 1982 - 1984 = 100: area: West-Size Class A, or, if said consumer price index ceases to be published and there is no successor index, a reasonably equivalent index published by an authoritative third party mutually agreed upon by the Town and Developer, acting reasonably and in good faith. The CPI for any date means the CPI last published before the calendar month that includes such date. For reference, a current databases print-out of the Consumer Price Index -All Urban Consumers (CPI-U) 1982 - 1984 = 100: area: West-Size Class A, All items is attached as Exhibit C. (e) "CPI Less Enerey" means the consumer price index compiled and published by the United States Department of Labor, Bureau of Labor Statistics, designated Consumer Price Index -All Urban Consumers (CPI-U) 1982 - 1984 = 100: area: West-Size Class A, All items less energy, or, if said consumer price index ceases to be published and there is no successor index, a reasonably equivalent index published by an authoritative third party mutually agreed upon by the Town and Developer, acting reasonably and in good faith. The CPI Less Energy for any date means the CPI Less Energy last published before the calendar month that includes such date. For reference, a current databases print-out of the Consumer Price Index -All Urban Consumers (CPI-U) 1982 - 1984 = 100: area: West-Size Class A, All items less energy is attached as Exhibit D. (f) "Effective Date" means the date upon which all of the following have occurred: (i) Developer has acquired the Property; (ii) the Property has been annexed by the Town and (iii) Final Entitlements have been granted for the Landfill. (g) "Environmental Requirements" means all laws, ordinances, statutes, codes, rules, regulations, agreement, judgments, orders and decrees, now of hereafter enacted, promulgated, or amended, of the United States, the State of Arizona, or Pima County relating to pollution, the protection or regulation of human health, natural resources, or the environment, or the emission, discharge, release or threatened release of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or waste of Hazardous Materials in the environment (including, without limitation, ambient air, surface water, ground water or land or soil). (h) "Final Entitlements" means grant or issuance of all final, complete and unappealable licenses, permits, approvals (including Zoning Approvals), authorizations and entitlements granted by applicable governmental authorities and legally required for the development, construction and operation of the Landfill, as determined by Developer, acting reasonably and in good faith, but excluding any license, permit, approval, authorization or entitlement whose grant or issuance is contingent upon completion of construction of any building or other improvements included in the Landfill. (i) "Hazardous Materials" means any substance which is or contains (i) any "hazardous substance" as now or hereafter defined in § 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1986, as amended (42 U.S.C. §§9601 et seq.) ("CERCLA") or any regulations promulgated under CERCLA; (ii) any "hazardous waste" as now or hereafter defined in the Resource Conservation and Recovery Act (42 U.S.C. §§6901 et seq.) ("RCRA") or regulations promulgated under RCRA; (iii) radon gas; and (iv) any additional substances or materials which are now 11055298.11 or hereafter classified or considered to be hazardous or toxic under Environmental Requirements or the common law, or any other Applicable Laws, but excluding any material that is permitted to be deposited in the Landfill by ADEQ. (j) "Net Tonnage" means Waste that is deposited at the Landfill through the commercial operation of the Landfill. Notwithstanding the foregoing, Net Tonnage shall not include: (i) liquid or semi-solid Waste as determined by the ADEQ's Paint Filter Test standard, or any replacement liquid test standard, (ii) Waste that is prohibited from receipt at the Landfill by state, federal or local law, regulation, rule, code, ordinance, order, license, permit or permit condition, including land use restrictions or conditions applicable to the Landfill, (iii) materials used for daily cover or alternative daily cover, interim cover, final cover or Landfill infrastructure as approved pursuant to applicable landfill permits (iv) Waste which is received and deposited at the Landfill for no or nominal consideration (e.g. any periodic free tipping day or other free or nominal rate disposal program) other than Waste received from Developer or any of its affiliates. (k) "Opening Day" means the first day on which the Landfill is open to receive Waste. (1) "Operation Life" means the period between Opening Day and Closing Day. (m) "Review Date" means the first anniversary of the Opening Day and each anniversary of the Opening Day thereafter. (n) "Ton" means a short ton, being 2,000 pounds. (o) "Waste" means non-hazardous solid waste intended for final disposal in a landfill and not for beneficial use, as defined in the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq. and implementing Arizona state law, and in accordance with Federal and Arizona state laws and the terms of any permit, license, authorization, registration or consent issued, granted, given or otherwise made available by any governmental authority applicable to the Landfill and the Property. (p) "Zoning Approvals" means any and all local zoning approvals (including any special use zoning or variance) necessary to permit the development and operation of the Landfill, as determined by Developer, .acting reasonably and in good faith. 3. Term. The term of this Agreement shall commence on the Effective Date and continue for the Operation Life of the Landfill, unless terminated sooner as provided in this Agreement or extended by mutual agreement. Termination of this Agreement shall not extinguish the covenants or agreements that by their terms require performance after termination. Unless the parties otherwise agree in writing each such covenant and agreement shall survive termination of this Agreement. Termination. (a) End of Term. In accordance with Section 3, this Agreement shall terminate at the end of its term unless extended by mutual agreement of Town and Developer. (b) Zoning Changes. If Developer elects by written notice to the Town not to proceed with the Landfill or obtains rezoning of the Property to authorize a use other than the Landfill, this Agreement will terminate. Changes in the Specific Plan that do not require a change in the land use zone do not constitute rezoning for purposes of this Section 4. 11055298.11 (c) Specific Plan Changes. Changes in the Specific Plan or modifications to the Agreement pursuant to Section 04.05.08 of the Town's Land Development Code that materially increase or otherwise materially alter the Developer's obligations under this Agreement, unless allowed by amendment to this Agreement as set forth in Section 45, shall, at Developer's option, terminate this Agreement. If Developer elects to terminate this Agreement pursuant to this Section 4(c), Developer shall provide written notice to the Town exercising Developer's termination right. (d) Default. This Agreement may be terminated pursuant to Section 33 due to breach of this Agreement and failure to remedy. (e) Reversion. If the Opening Day does not occur by the fifth (5~`) anniversary of the.. execution and delivery of this Agreement by the parties hereto, Town shall schedule a public hearing to determine compliance with Developer's schedule of development of the Landfill or to grant an extension of time or cause the Property to revert to its former zoning classification of General Rural and rescind the industrial use permit in accordance with A.R.S. § 11-832. Upon reversion of the Property to its former zoning classification and rescinding of the industrial use permit, this Agreement shall terminate. Notwithstanding the foregoing, if at the fifth (5"') anniversary of the parties' execution and delivery of this Agreement, the Opening Day has not occurred due to the Developer still being engaged in ongoing hearings, appeals or other administrative actions relating to obtaining any of the Final Entitlements, Town may not schedule such public hearing or take any other action relating to the potential rescission of the industrial use permit for the Landfill until such hearings, appeals or other administrative actions, including any related or follow-on hearings, appeals or other administrative actions, have been completed or abandoned by Developer. 5. Designation of Truck Route; No Rail Spur or Hauling. Developer shall designate truck routes for delivery of Waste to the Landfill. Developer shall establish and shall use commercially reasonable efforts to collect non-compliance charges to encourage haulers to use the designated truck routes. Developer shall not install a rail spur to or on the Property. No Waste shall be accepted at the Landfill which has, to the knowledge of Developer, been transported by rail. 6. Applicable Law. Developer shall construct and operate the Landfill in accordance with applicable Federal and State laws, rules and regulations (collectively, "Applicable Laws"). If the Federal Aviation Administration requires a study of the Landfill activity on the Property in accordance with Applicable Laws, Developer will conduct the study at Developer's sole cost and expense. 7. ADEQ Approvals. Developer, at its sole cost and expense, shall use commercially reasonable efforts to obtain all required permits and licenses and final approval of a municipal solid waste facility plan from ADEQ that will allow that Property to be used as a municipal solid waste landfill and related facilities, with terms, conditions and stipulations acceptable to Developer (the "ADEQ Ap rn ovals"). The ADEQ Approvals shall be deemed to be "final" on the later of (a) the next business day after the expiration of the time within an appeal could be filed regarding issuance of the ADEQ Approvals provided that no such appeal was filed or attempted to be filed, or (b) if such an appeal is filed, the next business day after the successful final conclusion of such appeal in favor of Developer. 8. Third Partv Reviews and Approvals. Developer, at its sole cost and expense, shall use commercially reasonable efforts to obtain the Final Entitlements; provided that Developer shall not have to pay the Town's costs or expenses incurred in evaluating submittals in excess of the fees ordinarily charged for evaluation of entitlements submittals. 9. Landfill Elevation and Height Limits. Notwithstanding any provision of the Specific Plan to the contrary, once constructed, the maximum elevation of the Landfill shall not exceed 2,145 feet above i iossz9s. i i 4 sea level (being 165 feet above the baseline elevation grade reference of 1,980 feet existing on the south property line of the Property), and the average height of the Landfill shall not exceed 135 feet. Notwithstanding the foregoing, grade changes outside of the Landfill footprint (including, without limitation, screening berms, flood protection structures, stormwater basins, building pads and temporary stockpiles) shall not be included in calculating the Landfill's compliance with the foregoing elevation and height limits. This Section 9 shall constitute an amendment to the Specific Plan such that any Landfill elevation restriction in the Specific Plan shall be subject to this provision. 10. Hazardous Materials. No Hazardous Materials shall be disposed of at the Landfill in violation of Applicable Laws. Further, Developer shall not accept for disposal at the Landfill any Waste that is categorized as "hazardous material" or "hazardous substance", or any equivalent designation, under the Applicable Laws of any state outside of Arizona in which such Waste was generated. 11. Litter Control. Developer shall keep the Property in a neat and orderly condition and work with the adjacent property owners to pick up litter on adjacent properties resulting from Landfill operations during the Operation Life of the Landfill. Particular attention will be paid to the administration building, scale area, public disposal area, perimeter fencing and drainage channels. Developer shall follow applicable ADEQ regulations relating to cover governing the active disposal areas. Developer shall appoint a litter control team to control litter and other foreign material emanating from the Landfill, and shall assign extra personnel to litter control as needed. Developer shall ensure that disposal operations are limited to the smallest area reasonably possible, consistent with safety, efficiency and litter control, and are conducted to minimize wind-blown litter. Developer shall ensure that active disposal areas within the Landfill are covered at the end of each work day. To promote litter-free operation, especially in regard to traffic between the Property and the Avra Valley Road -Interstate 10 interchange, Developer shall (a) establish requirements for haulers to cover and secure loads, including charging uncovered load fees, (b) use commercially reasonable efforts to collect uncovered load fees and to ban haulers that chronically violate such requirements, (c) employ personnel to remove litter along the Property access drive to Avra Valley Road on a regular basis, but not less than once every thirty (30) days, and (d) employ personnel to remove litter along Avra Valley Road from the intersection of Avra Valley Road and the Property access drive to the Avra Valley Road -Interstate 10 interchange on a regular basis, but not less than once every thirty (30) days. If Developer fails to comply with such litter removal obligations, Town may notify Developer in writing of such failure and demand that Developer commence such litter removal activity. If Developer fails to comply with such notice within ten (10) days following Developer's receipt thereof, Town may engage Town personnel or third-party contractors to complete such litter removal on Developer's behalf and invoice Developer for the cost of such work, which invoice shall be payable by Developer within thirty (30) days of Developer's receipt. 12. Town Review of Developer Comuliance Under Agreement. (a) Prior to the Opening Day, Developer shall notify Town in writing of Developer's compliance with all of its obligations due to be performed under this Agreement prior to the Opening Day and the date that. Developer has scheduled for the Opening Day. Town shall have fifteen (15) days from the date of its receipt of such notice to deliver Developer a written request for a meeting with Developer's representatives and/or an inspection of the Property to confirm Developer's compliance with its pre- Opening Day obligations. If Town delivers such written notice within such time period, Developer and Town shall cooperate to arrange such meeting and inspection as soon as practicable and in any event not more than fifteen (15) days after the date of delivery of Town's written notice to Developer. If Town fails to deliver such written notice, Town shall be deemed to have waived its right to require such meeting and/or inspection, in which event Developer shall be free to commence operation of the Landfill in accordance with Developer's schedule; provided, however, that such waiver shall not limit any other 11055298.11 (b) Within sixty (60) days after each of the one-year anniversary of the Opening Day, the five-year anniversary of the Opening Day and each successive five-year anniversary of the Opening Day thereafter during the Operation Life, Town may deliver written notice to Developer requesting a meeting with Developer's representatives and/or an inspection of the Property to confirm Developer's compliance with its post-Opening Day obligations under this Agreement. If Town delivers any such written notice within such time period, Developer and Town shall cooperate to arrange such meeting and/or inspection as soon as practicable and in any event not more than thirty (30) days after the date of delivery of Town's written notice to Developer. If Town fails to deliver such notice for the period in question, Town shall be deemed to have waived its right to require such meeting and/or inspection of the Property until the next anniversary date referred to above; provided, however, that such waiver shall not limit any other right of Town under this Agreement or Applicable Law to oversee and inspect the operation of the Landfill and Developer's other obligations hereunder. (c) If, based on any meeting and/or inspection referred to in Section 12(a) or 12 b above, Town determines that Developer is not in compliance with any of its obligations under this Agreement, Town shall notify Developer in writing of such non-compliance, whereupon Developer shall have thirty (30) days to correct such non-compliance before Town may find Developer to be in default under this Agreement; provided, however, that if Developer reasonably requires more than thirty (30) days to correct such non-compliance, Developer shall have such additional time as is reasonably necessary to correct such non-compliance before Town may .find Developer to be in default under this Agreement. Upon. Developer completing any such corrective work, Developer shall permit Town representatives to inspect such work to confirm that such non-compliance has been corrected. (d) Developer shall obtain prior to the Opening day, and shall maintain during the Operation Life, a performance bond in the amount of $100,000 securing Developer's performance obligations under this Agreement. 13. Operation Life Renortin~; Closure Plan. Within thirty (30) days after the fifth (5~') anniversary of the Opening Day, and within thirty (30) days after each successive fifth (5`h) anniversary date thereafter, Developer shall deliver to Town a written calculation of the remaining Operation Life of the Landfill, including an estimation of available remaining volume in the Landfill. Further, within thirty (30) days after each anniversary of the Opening Day during the last five (5) years of the Operation Life of the Landfill, Developer shall deliver to Town a written calculation of the remaining Operation Life of the Landfill, including an estimation of available remaining volume in the Landfill. Notification, in accordance with Section 34 of this Agreement, of the intent to close the Landfill shall be sent to Town at least ninety (90) days in advance of the anticipated Closing Day. At the end of the Operation Life of the Landfill, Developer, at its sole cost and expense, shall adopt a closure plan for the Property subject to approval by ADEQ following the requirements of Applicable Laws for closure of municipal solid waste landfills. Developer shall be responsible for all closure and post-closure costs and expenses. At a minimum, the closure plan shall (i) provide that perimeter berms be seeded and vegetated with native plan material that closely resembles the surrounding desert unless prohibited by ADEQ, (ii) provide for Developer to design and construct man-made habitats on the Property for burrowing owl communities, which habitat design and construction shall be undertaken with the cooperation and input of the ADEQ or Arizona state wildlife authorities, and (iii) include designs intended to induce habitation by burrowing owl communities and other natural wildlife, as prepared with the cooperation and input of the ADEQ or Arizona state wildlife authorities, but subject to ADEQ landfill closure regulations and other Applicable Laws. II055298.11 14. Closure and Post Closure Financial Assurances. Developer shall provide financial assurances for costs of closure and post closure care, as required by Applicable Laws. 15. Habitat Conservation Plan. Upon Town's adoption of a habitat conservation plan, and subject to Developer's review and approval of such plan (acting reasonably), Developer shall enter into such habitat conservation plan. 16. Dedication of East Branch of Brawlev Wash; Maintenance. Within sixty (60) days following the later to occur of (a) Opening Day or (b) completion of necessary improvements to the Property and any adjoining properties, including, without limitation, levees, berms, drainage and natural habitat restoration, Developer shall give Town written notice that such applicable event has occurred and offer to dedicate to Town the open space described in Exhibit E attached hereto and commonly referred to as the East Branch of Brawley Wash. Within ninety (90) days following the date of delivery of such notice to Town, Town shall notify Developer in writing of Town's election to either accept or reject such dedication. If Town elects by written notice to Developer during such ninety (90) day period to accept such dedication, then (i) Developer shall thereafter promptly undertake such actions at its sole cost to formally dedicate the East Branch of Brawley Wash to Town, and (ii) during the Operation Life, if any periodic maintenance or repair is required on any berms, levees or other improvements made by Developer in or around the East Branch of Brawley Wash, Developer shall undertake such periodic maintenance and repairs at its sole cost, subject to being granted reasonable and timely access to the East Branch of Brawley Wash to conduct such work. If Town fails to give any written notice to Developer within the aforementioned ninety (90)-day period of Town's acceptance or rejection of the dedication of the East Branch of Brawley Wash, Town shall be deemed to have rejected such dedication, in which event Town shall cease to have any further right to seek or obtain the dedication to it of the East Branch of Brawley Wash. 17. Force Maieure. In addition to any specific provisions of this Agreement, the performance by either party hereunder shall not be deemed to be in default where there is a delay in performance caused by or resulting from war, insurrection, terrorism, strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God, acts of the public enemy, epidemics, quarantine restrictions, &eight embargos, lack of transportation, governmental restrictions or priority, unusually severe weather, inability of any contractor, subcontractor or supplier to perform acts for such party, acts or the failure to act of any public or governmental agent or entity, litigation relating to the Property initiated by a third party other that Developer or the Town, or any other causes beyond the reasonable control the party claiming an extension of time to perform (each, a "force majeure event"), and the party affected by the force majeure event gives notice to the other party after the occurrence of such event. In the event that any party to the Agreement is unable or fails to perform due to a force majeure event and such party has given the notice as provided above, then the time for the performance of the other party shall also be extended for a period of time equal to the period of the delay plus a reasonable start-up period. 18. Host Fees. (a) Developer shall pay the Town a "Host Fee" as set forth in this Section 18. The Host Fee shall be $1.20 per Ton of Net Tonnage and shall be paid each calendar quarter in the manner set forth in Section 18(b). Payments shall be made to the Town General Fund and transmitted to the Town at the address set forth in Section 34. In the event Developer fails to make payment within ten (10) business days after receipt of written notice from the Town that a specific payment was not timely made, Developer shall, in addition to the required payment, pay a late fee of nine percent (9%) of the total amount due for said quarter. 11055298.11 (b) Subject to the other provisions of this Section 18, on each Review Date, the Host Fee for the year then commencing shall be adjusted upwards by an amount equal to any positive change in the CPI Less Energy. On each Review Date, the Host Fee shall be increased by any positive percentage change reflected in the CPI Less Energy when compared to the applicable Base Index, rounded to the nearest one (1) cent. The formula for such adjustment shall be as follows: Adjustment amount = 1 + [(RDCPI - BI) / BI) Where: RDCPI =CPI Less Energy existing on the Review Date; and BI =Base Index E.g. If the Host Fee in effect prior to adjustment is $1.20 per Ton, the most recently reported CPI Less Energy on the Review Date is 218.4 and the Base Index is 213.8, then the positive percentage change between the Base Index and the CPI Less Energy on the Review Date, i.e., 1 +[(218.4-213.8)/213.8], is 1.0215%. The adjustment to the Host Fee is thus calculated as follows: $1.20 x 1.0215% _ $1.2258, rounded to $1.23. Notwithstanding the foregoing, in no event shall any CPI Less Energy-based increase in the Host Fee cause the Host Fee to exceed four percent (4%) of the average charge per Ton of Net Tonnage that third- party customers of the Landfill paid to deposit Waste at the Landfill during the year of this Agreement immediately preceding the Review Date for such CPI Less Energy-based increase; provided, however, that such limitation shall not require any Host Fee already in effect to be reduced below its then current rate. To the extent such limitation applies to any CPI Less Energy-based increase in the Host Fee, the Town may not in any subsequent year's CPI Less Energy-based adjustment to the Host Fee claim as part of such adjustment the amount of any prior year's increase in the Host Fee that would have occurred but for the application of this paragraph. In no event shall any CPI Less Energy-based adjustment to the Host Fee cause the Host Fee to decrease from one year to the next. In the event the CPI Less Energy for. a Review Date reflects a negative percentage change when compared to the applicable Base Index, the Host Fee for the then commencing year shall equal the Host Fee payable during the immediately preceding year. (c) Host Fees shall be calculated and paid by Developer to Town within forty-five (45) days after the end of each calendar quarter in which such Host Fees are earned. Within forty-five (45) days after the end of each calendar quarter, Developer shall deliver to Town a written report (a " uarterl Report"), certified in writing by Developer as being true and correct, of (i) the Net Tonnage deposited at the Landfill and (ii) Developer's determination of the quarterly Host Fee payment due under Section 18 a with respect thereto (the "Host Fee Determination"), as derived from Developer's review of its operational, financial and other relevant books and records as of the end of such calendar quarter. The Quarterly Report shall contain reasonable detail as to how the Host Fee Determination was made by Developer, including details of any ineligible Waste processing costs under the neighborhood container program referred to in Section 2120 or the voucher program referred to in Section 22. In light of the unpredictability of the available volumes of Waste, number of customers, future laws and regulations and/or the business operations of Developer, Town acknowledges that Developer has not made any representations regarding the volume of Net Tonnage or the amount of any Host Fees to be paid hereunder. Developer specifically reserves the right to reject any Waste received at the Landfill. (d) Developer shall retain for at least three (3) years accurate records of Net Tonnage deposited at the Landfill for final disposal, including gate receipts. In addition to the Quarterly Reports, Developer shall deliver to Town, from time to time, copies of all periodic reports filed by or on behalf of I lOSS298.ll Developer with the State of Arizona or any other applicable governmental body with respect to volumes and types of Waste deposited at the Landfill. (e) Developer shall install, operate and maintain at the Landfill, accurate and reliable scales, certified by the Arizona Department of Weights and Measures. Such scales shall be kept in good condition and repair at all times while the Landfill is open for business. Town shall have the right, in connection with Town's review and audit rights referred to in Section 18(fl, to test the accuracy of such scales, provided that such testing does not unreasonably interfere with the operation of the Landfill. Notwithstanding the foregoing, Developer may charge customers of the Landfill using methods other than weight-based fees, including volume-based fees and flat fees determined in Developer's sole discretion, provided that such alternative charge methods shall not affect the method for calculating the Host Fee payable to Town as contemplated hereunder. (f) From time to time, upon Town's written request, but not more frequently than once per calendar year, Developer shall make its records applicable to calculation of the Host Fee Determinations covering the record retention period set forth in Section 18(dl above available to Town for review and audit by Town or Town's accountants or other representatives. If, following any such review and audit, Town believes that any Host Fee Determination was improperly made, Town may give written notice thereof to Developer, in which event Town and Developer shall promptly cause their respective representatives to confer with each other with a view to resolving such matter in good faith. If the representatives of Town and Developer are unable to resolve such matter within thirty (30) days after the date of delivery of Town's notice to Developer, Town and Developer shall refer the dispute to a mutually acceptable firm of independent certified public accountants (the "Independent Accountants") for final determination. The Independent Accountants may request of Town and/or Developer such documents and information as may be necessary or appropriate for proper determination of the matter, and Town and Developer shall cooperate to promptly satisfy any such request. The determination by the Independent Accountants of such matter shall be final and binding on Town and Developer, and may be enforced as an arbitration award in the state or federal courts of Arizona. Town's out-of-pocket costs of conducting a review and audit described above shall be borne by Town, unless the results of such review and audit, as finally determined by agreement of Town and Developer or by the Independent Accountants, show that Town was underpaid by more than five percent (5%) for the period under review, in which event Developer shall reimburse Town all of such out-of-pocket costs upon presentation of receipts or other reasonable documentation thereof. The costs of the Independent Accountant in undertaking any review and determination as described above shall be paid by whichever parry is not the substantially prevailing party in such review and determination. For purposes of this Section 18(fl, the "substantially prevailing party" shall be the party whose position on the dispute in question, as finally presented to the Independent Accountants, is closest to the Independent Accountants' final determination of such dispute. (g) Any Host Fee amount which, based on the separate agreement of Town and Developer or a determination of the Independent Accountants, is payable by one party to the other shall be paid within thirty (30) days after the agreement or determination and any such payment not timely paid in accordance with this Section 18 shall bear interest at the rate of nine percent (9%) per annum until paid. (h) Town shall receive the Host Fee payments only with respect to Net Tonnage that is deposited for final deposit in the "Initial Airspace" of the Landfill. For purposes of this Agreement, "Initial Airspace" means that area of the Landfill in which Waste may be deposited as determined by the initial Final Entitlements from the Town, ADEQ and other applicable governmental authorities. 19. Free Public Access. On two days throughout the calendar year (one each Spring and Fall) during. the Operation Life as determined by Developer, Developer shall allow each Town household (and all households not within the Town but which are located in the geographic area depicted on Exhibit F 11055298.11 attached hereto) to deliver Waste directly to a site designated by Developer at the Landfill free of charge. Waste delivered during these free public days shall be excluded from the calculation of the Host Fees under Section 18. Developer shall be permitted to impose reasonable restrictions on such free public access, including, without limitation, (a) a maximum of two (2) Tons per household per six-month period (any amount not used in a six-month period shall not be carried forward to any succeeding six-month period), (b) limit to two cars or pickup trucks per household per six-month period; (c) individuals presenting evidence (e.g., driver's license and utility bill) of residency within Town or within the area depicted on Exhibit F, as applicable; or (d) prohibition of commercial vehicle capacity for delivery of Waste. Residents shall pay the posted gate rate for any amount in excess of two tons per six-month period. 20. Customer Vehicle Flat Fees. Non-commercial landfill customers who present evidence (e.g., driver's license and utility bill) of residency within Town or otherwise within the area depicted on Exhibit F, as applicable, shall be charged a flat fee of $10.00 per non-commercial vehicle (the "Vehicle Flat Fee") for up to the first one (1) Ton of eligible Waste deposited by such vehicle at the Landfill. Any Net Tonnage of Waste in excess of one (1) Ton deposited by such vehicle shall be subject to Developer's posted gate rates in effect from time to time. The Vehicle Flat Fee shall be subject to annual upwards adjustment by an amount equal to any positive change in the CPI. On each Review Date, the Vehicle Flat Fee shall be increased by any positive percentage change reflected in the CPI when compared to the applicable Base Index, rounded to the nearest one (1) cent. The formula for such adjustment shall be as follows: Adjustment amount = I + [(RDCPI - BI) / BI) Where: RDCPI =CPI existing on the Review Date; and BI =Base Index E.g. If the Vehicle Flat Fee in effect for cars prior to adjustment is $10.00, the most recently reported CPI on the Review Date is 228.2 and the Base Index is 223.9, then the positive percentage change between the Base Index and the CPI on the Review Date, i.e., 1 + [(228.2-223.9)/223.9], is 1.0192%. The adjustment to the Host Fee is thus calculated as follows: $10.00 x 1.0912% _ $10.19205, rounded to $10.19. Notwithstanding the foregoing, in no event shall any CPI-based increase in the Vehicle Flat Fee cause the Vehicle Flat Fee to exceed the average per-Ton eligible Waste disposal cost charged to non-commercial customers using solid waste landfills or transfer stations in the greater Tucson, Arizona metropolitan area. To the extent such limitation applies to any CPI-based increase in the Vehicle Flat Fee, Developer may not in any subsequent year's CPI-based adjustment to the Vehicle Flat Fee claim as part of such adjustment the amount of any prior year's increase in the Vehicle Flat Fee that would have occurred but for the application of this paragraph. In no event shall any CPI-based adjustment to the Vehicle Flat Fee cause the Vehicle Flat Fee to decrease from one year to the next. In the event the CPI for a Review Date reflects a negative percentage change when compared to the applicable Base Index, the Vehicle Flat Fee for the then commencing year shall equal the Vehicle Flat Fee payable during the immediately preceding year. 21. Neighborhood Container Program. During the Operation Life of the Landfill, during each calendar quarter (a calendar quarter being each of January through March, April through June, July. through September, and October through December), upon the request of Town given at least fifteen (15) days in advance, Developer shall arrange for up to four (4) roll-off containers to be placed in 11055298.11 10 Exhibit F attached hereto (not more than four (4) such neighborhoods per calendar quarter) for individuals residing in such neighborhoods to dispose of Waste, and Developer shall arrange for the retrieval of such containers when full and for the disposal of their contents at the Landfill. The costs of providing and retrieving such containers and for disposing of their contents shall be for the sole account of Developer; provided, however, that if Developer must remove Waste from any such container based on such Waste not being eligible for disposal at the Landfill based on Applicable Laws, and Developer's cost of such removal and disposal of such Waste at another facility exceeds $1,000 per individual container or $2,000. in the aggregate for all containers in any calendar quarter, Developer may credit its full costs of such removal and disposal of such Waste against Host Fees payable to Town. If Developer exercises its right to credit such costs against Host Fees payable to Town, Developer shall provide Town with receipts or other appropriate evidence of Developer's costs of such removal and disposal of such ineligible Waste. No Host Fees shall be payable in respect of Waste deposited at the Landfill from the neighborhood container program contemplated by this Section 21. 22. Town Voucher Program. Commencing on the Opening Day, for each calendar year of the Operation Life of the Landfill (prorated in the first year for any partial calendar year), Developer shall provide Town with thirty (30) vouchers, each voucher entitling the holder to deposit up to two (2) Tons of Waste to the Landfill free of charge. Town shall have sole discretion as to the distribution. of such vouchers, provided that such vouchers may not be distributed or used for commercial benefit. Unused vouchers from a particular calendar year shall expire at the end of such calendar year and may not be used in any subsequent calendar year. A person depositing Waste at the Landfill under a voucher who exceeds the two (2) Ton limit of such voucher shall pay the posted gate rate for any Net Tonnage in excess of such limit. To the extent Developer must remove Waste from any such voucher-related deposit based on such Waste not being eligible for disposal at the Landfill based on Applicable Laws, Developer may credit its cost of such removal and its cost of arranging for proper disposal of such Waste at another facility against Host Fees payable to Town. Waste deposited at the Landfill under a voucher shall be excluded from the calculation of the Host Fees otherwise due the Town under Section 18. 23. Neighboring Ground Water Well Monitoring. If provided access prior to any treatment such as a water softener, Developer shall sample the five (5) domestic water wells registered within two (2) miles down gradient from the Property listed on Exhibit G attached hereto. No later than sixty (60) days following receipt of Final Entitlements for the Landfill, Developer shall send written notice, to the address used by Pima County for sending tax bills, to the owner of each property on which any of such water wells exist to determine if such owner wishes to have such water well sampled. If any such property owner does not elect to have such well sampled by Developer by sending written notice to Developer within thirty (30) days after Developer's written notice was mailed, Developer shall not be required to sample such owner's well in the future. If such property owner elects to have Developer sample such well and provides Developer with appropriate access to such well, Developer shall gather enough samples to establish an adequate background sample set (at Developer's discretion) from such well over a one (1)-year period in order to obtain a statistically valid background determination of the quality of the water in such well. Developer shall provide the results of such sampling to the property owner. Developer shall sample each such well for parameters that are deemed standard for State and Federal landfill monitoring requirements and that are reasonably expected to be associated with landfill- related constituents. After such initial sampling and during the Operation Life, if Developer's sampling of its own test wells on the Property indicate that ground water contamination from the Landfill is occurring, Developer shall sample each such property owner's wells on an annual basis (subject to being granted appropriate access to such wells) until Developer's sampling of its own test wells on the Property indicate no further ground water contamination from the Landfill l 1055298.1 l 1 1 24. Perimeter Fence. Prior to Opening Day, owner shall install a six (6) foot chain link fence on the entire Southern perimeter boundary of the facility. A six (6) foot chain link fence on the western and eastern perimeter boundaries will be built in phases. The first phase for both eastern and western boundaries shall be constructed before Opening Day and will start at the southern boundary and extend to the north one hundred (100) feet past the ~5Y active cell. Each phase of chain link fence there after will be constructed to maintain a minimum of a one hundred (100) foot extension beyond the advancing operation ultimately enclosing the entire site in chain link fence. The portion of the facility that has not had chain link fence installed will have a five (5) strand wire fence as permitted by ADEQ. Prior to Opening Day, signage stating "no trespassing" in Spanish and English shall be posted at least every one hundred (100) feet along the entire perimeter of the Landfill site. 25. Property Access Intersection Improvements. Developer, at its sole cost and expense, shall provide for the design and construction of certain improvements to the intersection of Avra Valley Road and the Property access drive (the "Intersection Improvements"). The Intersection Improvements shall include, but are not limited to: (a) a deceleration lane for each direction of travel on Avra Valley Road, and (b) other road improvements deemed necessary by Town based on any traffic impact analysis, drainage study or any other applicable study required by Town. The Intersection Improvements are conceptually described in Exhibit H attached hereto. Prior to construction of the Intersection Improvements, Developer, at its sole cost and expense, shall submit to Town (i) an independent traffic impact analysis, drainage study and any other study required the Town and (ii) plans and specifications for the Intersection Improvements. Such studies, plans and specifications shall be subject to the approval of Town, which approval may not be unreasonably withheld, conditioned or delayed. Construction of the Intersection Improvements shall be in accordance with the applicable code requirements and standards of Town. Developer shall commence and substantially complete construction of the Intersection Improvements on or prior to Opening Day; provided that any delay caused or contributed to by Town, including, without limitation, failure to timely approve the Intersection Improvements shall extend the date for substantial completion by one day for each day of such delay. Developer agrees not to develop or actively participate with any third party in the development of Silverbell Road for purposes of allowing Silverbell Road to be used as a means of access to the Property. 26. Other Avra Valley Road Intersection Improvements. No later than two (2) years following the Opening Date, Developer shall (a) design and install a traffic signal at the intersection of Avra Valley Road and Sandario Road, Marana, Arizona, and (b) design and construct in accordance with Pima County standards aright-turn lane on eastbound Avra Valley Road at Sandario Road and aright-turn lane on northbound Sandario Road at Avra Valley Road. 27. Brawlev Bridge Improvement. Developer, at its sole cost and expense, shall provide for such repairs and upgrading of the Brawley Bridge on Avra Valley Road near mile marker [_] as are necessary to maintain the current 80,000 pound rating for such bridge (the "Brid,ge Improvements"). Prior to construction of the Bridge Improvements, Developer, at its sole cost and expense, shall submit to Town plans and specifications for the Bridge Improvements. Such plans and specifications shall be subject to the approval of Town, which approval may not be unreasonably withheld, conditioned or delayed. Construction of the Bridge Improvements shall be in accordance with the applicable code requirements and standards of Town. Developer shall substantially complete construction of the Bridge Improvements prior to Opening Day; provided that any delay caused or contributed to by Town, including, without limitation, failure to timely approve the Bridge Improvements shall extend the date for substantial completion by one day for each day of such delay. 28. Use of Fox Easement. Following the Opening Day, if requested by the Arizona State Land Department (including any successor department), Developer shall enter into an agreement with the Arizona State Land Department to permit State or other third party vehicles to use the "Fox Easement i iossz9s. i i 12 Fox Easement") and recorded in the Office of the Pima County Arizona Recorder in Docket 13696, Page 174, for purposes of accessing State of Arizona grazing lands located on the east side of the access road to the Property. Such use of the Fox Easement shall at all times be in compliance with the terms of the Fox Easement and in common with Developer and any other parties permitted to use the Fox Easement Area, shall not exceed the rights of Developer to the Fox Easement Area, and shall not unreasonably interfere with Landfill access or operations. 29. Future Regulation. The parties acknowledge Section 04.05.06 and 04.05.07 of the Town Land Development Code, which are incorporated herein by reference. 30. Environmental Insurance. Prior to Opening Day, a pollution legal liability, environmental impairment or other similar policy of insurance shall be in force covering the Property in an amount not less than $20,000,000 aggregate, $10,000,000 each incident, with a maximum self insured retention of $5,000,000. Such insurance coverage shall remain in force during the remainder of the term of this Agreement. On the tenth anniversary of the Opening Day, and on each successive tenth anniversary thereafter prior to the Closing Day, Developer shall review the adequacy of its insurance coverage, taking into account effects of inflation and industry standards for such insurance. Developer may adjust its insurance coverage based on Developer's review; provided that Developer may not reduce coverage below the limits set forth in this Section 30. 31. Conflict Of Interest. This Agreement is subject to the provisions of A.R.S. § 38-511. 32. No Personal Liability. No member, official or employee of the Town shall be personally liable to Developer, or any successor or assignee, (a) in the event of any default or breach by the Town, (b) for any amount which may become due to the Developer or its successor or assign, or (c) pursuant to any obligation of the Town under the terms of this Agreement. 33. Default. It shall be a default hereunder if either party fails to perform or unreasonably delays performing any of its obligations hereunder or otherwise act in accordance with any term or provision of this Agreement and such failure or unreasonable delay continues for a period of sixty (60) days after written notice from the non-defaulting party specifying in reasonable detail the nature of the failure or delay and the manner in which such failure or delay may be satisfactorily cured. However, if the failure or delay is such that more than sixty (60) days would reasonably be required to perform such action or comply with any term or provision hereof, then the defaulting party shall have such additional time as may be necessary to perform or comply so long as the defaulting party commences performance or compliance within the cure period and diligently proceeds to complete such performance or fulfill such obligation. 34. Notices. All Notices which shall or may be given pursuant to this Agreement shall be in writing and shall be deemed to have been duly giving if (a) delivered personally to the party at the address set forth below; (b) deposited in the United States Mail, certified return receipt requested, postage prepaid to the party and addressed as set forth below; or (c) personally delivered or mailed in like manner to such other address as either party hereto may designate in writing. uossz9s.u 13 If to Developer: DKL Holdings, Inc. Attention: Larry D. Henk 4050 W. Ray Road, #17 PMB 209 Chandler, Arizona 85266 Fax: (480) 419-3543 If to Town: With a copy to: Either party may designate any other address for this purpose by written notice to the other party in the manner described herein. Notices shall be deemed given and received on the date personally delivered or two business days after being mailed. 35. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Arizona. 36. Conflict. In the event of any conflict between the terms of this Agreement and the Specific Plan, the terms of this Agreement shall govern. 37. Successors and Assigns. The Developer's rights and obligations hereunder may only be assigned to and assumed by a person or entity that has either (a) acquired the Property or (b) assumed Developer's contractual right to acquire the Property and, in either case, only by a written instrument, recorded in the Official Records of Pima County, Arizona expressly assigning and assuming such rights and obligations. Developer shall send notice of such assignment and assumption in accordance with Section 34 to the Town, but such assignment and assumption shall not be subject to the Town's consent. All of the provisions hereof shall inure to the benefit of and be binding upon the successors and assigns. This Agreement is not binding upon any subsequent municipality that may annex or incorporate the Property. 38. Third Parties. No term or provision of this Agreement shall be for the benefit of any person or entity not a party hereto, and no such other person or entity shall have the right or cause of action hereunder. 39. No Agencv Relationshiu, No Partnership or Joint Venture. Developer shall not in any way exercise any portion of the authority or sovereign powers of the Town and shall not make or contract or commit or in any way represent itself as an agent for the Town. This Agreement shall not create any agency relationship between Developer and the Town. Under no circumstances shall the parties hereto be considered partners or joint ventures. 40. Waiver. No delay in exercising any right or remedy shall constitute a waiver. No waiver by either party of any breach or default of any of the terms, covenants or conditions of this Agreement shall be construed or held to be a waiver of any succeeding or preceding breach or default of the same or other term, covenant or condition herein contained. i iossz9s. i i 14 41. Headings. The headings for the Sections of this Agreement are for convenience and reference purposes only and in no way define, limit or describe the scope or intent of said Sections nor in any way affect this Agreement. 42. Attorneys' Fees. In the event it becomes necessary for either party to this Agreement to employ legal counsel or to bring an action at law or other proceedings to enforce any of the terms; covenants or conditions of this Agreement or defend any action related to this Agreement, each party be responsible for its own attorneys' fees. 43. Severability. In the event that any term, phrase, clause, sentence, paragraph, section, provision or other portion of the Agreement shall become illegal null or void or against public policy, for any reason or shall be held by any court of competent jurisdiction to be illegal, null or void or against public policy, the remaining portions of this Agreement shall not be affected thereby and shall remain in full force and effect to the fullest extent permitted by law. 44. Recordation. This Agreement shall be recorded in the Official Records of the County Recorder of Pima County, Arizona, not later than ten (10) days after its full execution. Once the requirements of the Agreement have been fulfilled, either party, upon request of .the other party, will record an acknowledgment of the fulfillment of the terms hereof and termination of this Agreement. 45. Amendment to Agreement. No change of addition is to be made to this Agreement except by written amendment executed by Town and Developer. Within ten (10) days after approval and execution of the amendment to this Agreement, the amendment shall be recorded in the Official Recorder of the County Recorder of Pima County, Arizona. 46. Seller Consent. By executing this Agreement, Seller hereby acknowledges that it is aware of and consents to Developer's undertaking and performance of Developer's obligations under this Agreement. Notwithstanding any other provision of this Agreement to the contrary, the parties agree that if Developer fails to complete its purchase of the Property pursuant to the terms of the Purchase Agreement due to a material default of Seller under the Purchase Agreement or a failure of any of Developer's closing conditions set forth in the Purchase Agreement, Developer may elect in its sole discretion, as evidenced by written notice delivered to Town, to terminate its development of the Landfill and all of its obligations under this Agreement. If Developer exercises such termination right, Developer shall be immediately relieved of its obligations under this Agreement. Thereafter, if Seller or any other third party undertakes to proceed with the development of the Property as a solid waste landfill (whether as contemplated by this Agreement or otherwise), Seller or such other third party's development of the Property shall be subject to this Agreement, with Seller or such third party having the obligations of the "Developer" hereunder. 47. Authority. Each of the parties represents and warrants to the other that the persons executing this Agreement on behalf of the respective parties are authorized and empowered to bind the party on whose behalf each such individual, in his/her official capacity, is signing. 48. Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto pertaining to the subject matter hereof and all prior and contemporaneous agreements, representations, negotiations and understandings of the parties hereto, oral or written, pertaining to the subject matter hereof are hereby superseded and merged herein. [Signatures on Following Page] 11055298.1 l 15 IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective as of the Effective Date. STATE OF ARIZONA ) ss. County of ) TOWN OF MARANA, ARIZONA, a municipal corporation By: _ Name: Title: Attest: Marana Town Clerk Approved as to Form and Within the Powers and Authority Granted under the Laws of the State of Arizona to the Town of Marana Marana Town Attorney This agreement was acknowledged before me this _ day of , 2010, by ,the of the Town of Marana, a municipal corporation, on behalf of the Town of Marana. My Commission Expires: Notary Public 11055298.11 16 DKL HOLDINGS, INC., a Delaware corporation STATE OF ARIZONA ) ss. County of ) This agreement was acknowledged before me this _ day of , 2010, by Larry D. Henk, the President of DKL Holdings, Inc., a Delaware corporation, on behalf of DKL Holdings, Inc. Notary Public My Commission Expires: STATE OF ARIZONA ) ss. County of ) This agreement was acknowledged before me this _ day of , 2010, by Herbert Kai, the Manager of H. Kai Family NG1, L.L.C., an Arizona limited liability company, on behalf of H. Kai Family NG1, L.L.C. My Commission Expires: By: _ Name: Title: H. KAI FAMILY NG1, L.L.C., an Arizona limited liability company By: _ Name: Title: Notary Public i iossz9s. i i 17 EXHIBIT A PROPERTY (1055298.11 EXHIBIT B SPECIFIC PLAN 11055298.11 EXHIBIT C CPI DATABASE PRINT-OUT 11055298.11 EXHIBIT D CPI LESS ENERGY DATABASE PRINT-OUT i ioss29s. i i EXHIBIT E BRAWLEY WASH DESCRIPTION 11055298.11 EXHIBIT F MAP FOR FREE PUBLIC ACCESS 11055298.11 EXHIBIT G SAMPLING WATER WELLS i ioss29s.~ i EXHIBIT H INTERSECTION IMPROVEMENTS 11055298.1( ~~'`^~ MARANA /I\ STATEMENT OF AGENDA CONFLICT l /l I, P~D K ~ , declare a conflict on Agenda Item !J~ ,entitled: For the following reason(s): ~~~ Signature ~ z 7 /v Date