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HomeMy WebLinkAbout08/10/2010 Study Session Agenda Packet MA~~~~ `~,~~ i~13~ti ~.f E:~AkANn MARANA TOWN COUNCIL STUDY SESSION NOTICE & AGENDA COUNCIL CHAMBERS 11555 W. Civic Center Drive, Marana, Arizona 85653 Date: August 10, 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: Marana Chamber 2010 Year End Review (Ed Stolmaker) 2. Presentation: Relating to Development; discussion of and feedback on proposed draft Marana Regional Landfill Development Agreement (Frank Cassidy) 3. Presentation: Discussion of proposed changes to Title 16 (Signs) of the Marana Land Development Code and other possible regulations addressing signs in the public right-of--way (Cedric Hay) 4. Presentation: Relating to Finance; preliminary financial results for fiscal year 2009-2010 (Erik Montague) 5. Presentation: Relating to Personnel; update by staff relating to a professional services agreement with Waters-Oldani Executive Recruitment consulting firm to perform executive search services for the positions of Chief of Police and Assistant Town Manager (Suzanne Machain) 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 "".!~`r~ ~~~~~~ 11555 W. CIVIC CENTER DRIVE, MARANA, ARIZONA 85653 COUNCIL CHAMBERS, August 10, 2010, 6:00:00 PM To: Mayor and Council Item D 2 From: Frank Cassidy ,Town Attorney Strategic Plan Focus Area: Community Building Strategic Plan Focus Area -Additional Information: Community Building -Identify short- and long-term solutions to solid waste disposal for the Town and its residents Action Strategy -Investigate the opportunities to develop partnerships with public and private entities to ensure safe and consistent disposal of solid waste * Identify opportunities for transfer stations or other solutions to move solid waste to appropriate disposal sites * Review and provide a recommendation on potential ability to franchise solid waste contractors to Town Council * Investigate public/private partnerships that develop revenue for the Town Subject: Presentation: Relating to Development; discussion of and feedback on proposed draft Marana Regional Landfill Development Agreement Discussion: The Developer's proposed draft landfill development agreement was presented for discussion at the July 27 Council study session, along with the subjects of ongoing negotiations with staff. The new draft landfill development agreement presented for discussion at tonight's meeting incorporates the revisions discussed at the July 27 meeting and additional revisions resulting from discussions since then with the Developer's representative.The comparison draft of the development agreement included with the backup materials shows changes between the version of the development agreement that was in the Council's July 27 agenda packet and the version in the agenda packet for tonight's study session. In addition to the revisions described in the right hand column of the table displayed at the July 27 meeting, a copy of which is included with the backup materials, key revisions to the proposed development agreement include the following: Paragraph 11 ("Litter Control") has been amended to require the Developer to add Airline/Lambert as a litter removal area and to pay a $1,000 fine for three or more instances of failure to do timely cleanup within any consecutive thirty-day period. Paragraph 19 ("Free Public Access") has been modified to require two weeks' advance notice of the free public access days. A new paragraph 24 ("Town-Generated Waste") has been added. Paragraph 27 ("Other Avra Valley Road Improvements") has been modified to require the Developer to provide slurry seal and/or asphalt overlay within the town limits and to add a concurrency provision indicating that the landfill may not open unless and until the rest of Avra Valley Road (from town limits to I-10) is improved or the Developer provides slurry seal and/or asphalt overlay on it as well. The self-insured retention provision of paragraph 30 ("Environmental Insurance") has been modified. ATTACHMENTS: Name: O DKL -Marana - _ _.. _ _ _Development_Agreement_8- 3 final.DOC ^ WS_Comparison_DKL_ Marana - DA 7-21-DKL - _Marana= _Developm_ (WS Comparison DKL__Marana_-. _DA_7-21-DKL_-_Marana_- _Development_AgreemenI_8- 3 fnal~pdf Description: Type: Landfill DA Aug 3 version Comparison draft of landfill DA ~ Table of_Landfill_DA_Provisons_ (00022325).pdf Table Presented at July 27 study session Staff Recommendation: Backup Material Backup Material Backup Material Subject to any further revisions requested by Council, town staff recommends that the landfill development agreement be scheduled for Council consideration at the August 17 meeting, in conjunction with the landfill rezoning item. Suggested Motion: I move that the landfill development agreement be scheduled for Council consideration at the August 17 meeting, in conjunction with the landfill rezoning item. MARANA REGIONAL LANDFILL DEVELOPMENT AGREEMENT TOWN OF MARANA, ARIZONA 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 was approved on , 2010 by Ordinance Number (as amended or modified, the "~ecific 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 calendar month May of the calendar year immediately prior to the first Review Date calendar year, and (B) for each subsequent Review Date, the CPI Less Energy for the calendar month May of the calendar year of the prior Review Date; and (ii) for the CPI adjustment to the Vehicle Flat Fee under Section 20, (A) for the first Review Date, the CPI for calendar month May of the calendar year immediately prior to the first Review Date calendar year, and (B) for each subsequent Review Date, the CPI for the calendar month May 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 B. (e) "CPI Less Ener~y" 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 C. (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, but excluding any license, permit, approval, authorization or entitlement whose grant or 2 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 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 Tonnaee" means all Waste that is deposited at the Landfill through the commercial operation of the Landfill, including, without limitation, Waste deposited pursuant to Section 20, but excluding only the following: (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 and (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 July 1 to occur following the first anniversary of the Opening Day and each July 1 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. 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. 4. 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 Chan es. 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. (c) ~ecific 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`h) anniversary of the later of (i) the parties' execution and delivery of this Agreement or (ii) Seller or Developer's receipt of the Zoning Approvals, Town may 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 in accordance with A.R.S. § 9-462.01(E). Upon reversion of the Property to its former zoning classification, this Agreement shall terminate. Notwithstanding the .foregoing, if at the fifth (Sth) anniversary of the later of the parties' execution and delivery of this Agreement or Seller or Developer's receipt of the Zoning Approvals, 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 Zoning Approvals 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. If the Opening Day has not occurred by the tenth (10th) anniversary of the later of (i) the parties' execution and delivery of this Agreement or (ii) Seller or Developer's receipt of the Zoning Approvals, Town may 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 in accordance with A.R.S. § 9- 462.01(E) whether or not Developer is engaged in ongoing hearings, appeals or other administrative actions relating to obtaining any of the Final Entitlements. 5. Designation of Truck Route; No Rail Spur or Hauling. Developer shall propose designated truck routes for delivery of Waste to the Landfill for the Town's approval. 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. 4 7. ADEO 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 Approvals"). 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 Party 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 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. 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 and along Airline Road and Lambert Lane adjacent to the residential property known as Happy Acres 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 delivery written notice to Developer specifying such failure and demand that Developer commence litter removal activity in accordance with this Agreement. If Developer fails to commence such litter removal within one (1) business day of Developer's receipt of such notice, 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. In addition to such clean-up costs, Developer shall pay Town a fine of $1,000 upon the third time within any thirty (30)-day period, and upon any additional time within such thirty (30)-day period, that Town, exercising the foregoing right, engages Town personnel or third-party contractors to complete such litter removal on Developer's behalf. 12. Town Review of Developer Compliance 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 rights of Town under this Agreement or Applicable Law to oversee and inspect the operation of the Landfill and Developer's other obligations hereunder. (b) Following the one-year anniversary of the Opening Day, 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. Town may request such meeting and/or inspection once during the time period commencing on the one-year anniversary of the Opening Day and expiring on the day before the five-year anniversary of the Opening Day. During any five year period beginning with 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; provided that Town shall not request more than one such meeting and/or inspection during any such five (5) year period. If Town delivers any such written notice, 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 a 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 lib) 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. 6 (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 Reporting; Closure Plan. (a) Within thirty (30) days after the fifth (5`") anniversary of the Opening Day, and within thirty (30) days after each successive fifth (St'') 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. (b) At a minimum, Developer's operations of the Landfill 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. (c) 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. 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. 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 D attached hereto and commonly referred to as the East Branch of Brawley Wash. Following delivery of such notice, Town may deliver written notice to Developer of Town's election to accept such dedication so long as such notice is delivered prior to the Closing Day. If Town elects by written notice to Developer 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 subject to Developer reserving rights during the Operation Life to conduct periodic maintenance or repair 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 during the Operation Life. If Town fails to give any written notice to Developer of 7 Town's acceptance of the dedication of the East Branch of Brawley Wash, Developer shall remain obligated to undertake such periodic maintenance and repairs during the Operation Life. 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, freight 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 ten percent (10%) of the total amount due for said quarter.. (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 for the period commencing with the then current Base Index and expiring on the last day of the calendar month immediately prior to the one year anniversary of the then current Base Index. On each Review Date, any increase in the Host Fee shall be 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 for calendar month May in the year of 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 for calendar month April in the year of 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- pariy 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 (the "Host Fee Limit"); 8 provided, however, that (i) the Host Fee Limit shall not require any Host Fee already in effect to be reduced below its then current rate and (ii) the amount of such CPI Less Energy-based increase in the Host Fee that would be in excess of the Host Fee Limit may be applied to subsequent year increases in the Host Fee so long as the Host Fee Limit is not exceeded. 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 21 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 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(d) 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 and the costs of the Independent Accountants upon presentation of receipts or other reasonable documentation thereof. (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. 19. Free Public Access. On one Saturday in March and one Saturday in October (each, as selected by Developer) during the Operation Life, Developer shall allow each Town household (and all households not within the Town but which are located in the geographic area depicted on Exhibit E attached hereto) to deliver Waste directly to a site designated by Developer at the Landfill free of charge. Notice of each such free public access date together with terms for delivery of Waste consistent with this Section 19 shall be published at least two (2) weeks in advance of such free public access date in a local Marana newspaper reasonably acceptable. to the Town. The costs of such notice shall be for Developer's sole account. 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 E, 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 E, 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 = 1 + [(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., I + 10 [(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 neighborhoods determined by Town within Town limits and/or any neighborhood outside of Town limits but within the geographic area depicted on Exhibit E 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. If Developer must relocate and dispose of Waste deposited at the Landfill based on such Waste not being eligible for disposal at the Landfill based on Applicable Laws, Developer may credit its full costs of such relocation 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 11 provide Town with receipts or other appropriate evidence of Developer's costs of such relocation and disposal of such ineligible Waste. 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 to a source located 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 F 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. 24. Town-Generated Waste. Developer shall allow Town to dispose of qualifying Town-generated Waste eligible to be deposited in the Landfill at a rate equal to the lesser of {a) ninety percent (90%) of the published gate rate on the date of deposit or (b) the lowest commercial vehicle rate actually charged by Developer at the Landfill on the date of deposit. Town-generated Waste qualifying for such discount shall mean Waste generated exclusively by Town and delivered in Waste delivery vehicles containing only Town-generated Waste, as determined by Developer in its reasonable discretion. Town-generated Waste mixed with other Waste shall not be eligible for such discount and Developer shall have no obligation to separate Town-generated Waste from other Waste delivered to the Landfill. 25. 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 first 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. 26. 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. Prior to construction of the Intersection 12 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. 27. Other Avra Valley Road Improvements. (a) Following the second anniversary of the Opening Day, the Town may deliver written notice to Developer requesting a traffic signal at the intersection of Avra Valley Road and Sandario Road, Marana, Arizona; provided that such notice contains a traffic signal study conducted by the Town in accordance with the latest edition of the Manual on Uniform Traffic Control Devices concluding that the traffic signal is warranted. Developer shall design and install such traffic signal at the intersection of Avra Valley Road and Sandario Road, Marana, Arizona on or before the one-year anniversary of deliver y of the Town's notice requesting such signal. (b) Prior to the Opening Day, Developer shall design and construct in accordance with Town standards aright-turn lane on eastbound Avra Valley Road at Sandario Road and a right turn lane on northbound Sandario Road at Avra Valley Road. (c) Prior to the Opening Day Developer shall design and construct in accordance with Town standards aright-turn lane on westbound Avra Valley Road at Sanders Road. (d) Prior to Opening Day, Developer shall provide slurry seal and/or asphalt overlay on the approximately six (6)-mile segment of Avra Valley Road between the current East Marana Town line and the current West Marana Town line located just west of the proposed Landfill entrance as mutually agreed to by Developer and Town based on findings of geotechnical report(s) to be obtained by Developer, at its own cost and expense. If the section of Avra Valley Road from Interstate 10 to the current East Marana Town line has not been improved by third parties prior to the Opening Day, then Developer shall provide slurry seal and/or asphalt overlay on that section of Avra Valley Road not already improved prior to Developer's slurry seal and/or asphalt overlay work. 28. Brawley Bridge Improvement. Developer, at its sole cost and expense, shall provide for such repairs and upgrading of the East Branch of the Brawley Wash Bridge on Avra Valley Road as are necessary to maintain the current 80,000 pound rating for such bridge (the "Bridge 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. 13 29. 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 Area", as set forth in that certain Amended and Restated Easement dated November 30, 2009 (the "Fox Easement") and recorded in the Office of the Pima County Arizona Recorder in Docket 13696, Page 1'74, 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. 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. Such insurance may have self insured retention in excess of $1,000,000 but not more than $5,000,000 so long as Developer (a) provides a letter of credit or bond in an amount equal to the self-insured retention amount, or (b) demonstrates to Town's satisfaction (acting reasonably and in good faith) that Developer has current financial worth and/or financial stability sufficient to satisfy such self insurance risk. 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. 14 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: Gilbert Davidson, Town Manager Marana Municipal Complex 11555 W. Civic Center Drive Marana, Arizona 85653 Fax: (520) 382-1998 With a copy to: Frank Cassidy, Town Attorney Marana Municipal Complex 11555 W. Civic Center Drive Marana, Arizona 85653 Fax: (520) 382-1998 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 (2) 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_Agency Relationship, 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 15 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. 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. Authori 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] 16 IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective as of the Effective Date. TOWN OF MARANA, ARIZONA, a municipal corporation By: _ Name: Title: STATE OF ARIZONA ) ss. County of ) This agreement was acknowledged before me this ,the corporation, on behalf of the Town of Marana. My Commission Expires: 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 _ day of , 2010, by of the Town of Marana, a municipal Notary Public 17 DKL HOLDINGS, INC., a Delaware corporation By: Name: Title: 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: H. KAI FAMILY NG 1, L.L.C., an Arizona limited liability company By: _ Name: Title: 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. Notary Public My Commission Expires: 18 EXHIBIT A PROPERTY EXHIBIT B CPI DATABASE PRINT-OUT EXHIBIT C CPI LESS ENERGY DATABASE PRINT-OUT EXHIBIT D BRAWLEY WASH DESCRIPTION EXHIBIT E MAP FOR FREE PUBLIC ACCESS EXHIBIT F SAMPLING WATER WELLS LV~,g,,NA ~2~G~Q~IA~ ~,~AN~FIL,L.DEVELOPMENT AGREEMENT TOWN OF MARANA. ARIZONA 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 A.~reement"), 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~ua~ approved on , 2010 by Ordinance I~I~mber has amended or modified, o~a;~titt~tes 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) "ADE "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. -1-10-5329$:1.411055298.15 (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-thy calendar month undMav of the calendar year d rng r: ~~"-tn~ DY~~ xr~~ Dui ~,~~.~simmediatelv_~~~~q t e first eview Date calendar ear, and (B) for each subsequent Review Date, the CPI Less Energy for theme calendar montl~~ of the calendar year of the prior Review Date; and (ii) for the CPI adjustment to the Vehicle Flat Fee under Section 20, (A) for the first Review Date, the CPI for--thy calendar month andh~fay of the calendar year ding-whiE-h the- 4peuing--I~ay -eee-azr~i.~dia~l~zxiQx ist _lh~ _f~rsl..~~i,~w.YL2~.t~_~~.l.~ta.d'_y, and (B) for each subsequent Review Date, the CPI for the--sate calendar months of the calendar year of the prior Review Date. (c) "Closi~ 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 Enerav" 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 . (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-t}y- ~vel~p~; -a~tiug--reasonably--and--in -goad €aitl~; but excluding any :''^Y<,~°O°Q~ 'r.' 11055298.15 2 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 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 Tonnaee" means a1LWaste that is deposited at the Landfill through the commercial operation of the Landfill. : ~_includine._ i li uid ~ua~la~i.~~~~.itataoaa.~:~~~sx~=_szst:~p~.t~-t:~~es~Qn_~~~rhu~t~zc~l~d~~g~~1~:__t~ ~~11Q~=_.(~) q 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= a~ (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) "Oneninn~; DaX" 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 fitly 1 to occur followine_ the first anniversary of the Opening Day and each July L 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; us-det~rmine~by-- 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. 1'~'.~°OQ.' ' ~l 1055298. L 5 4. 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. (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(cl, 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 (5th) anniversary of the later of (i the arties' execution and delivery of this Agreement h;~~-*~ e-,~tiie~~erw*^ T^~=~^ °~°~~_ i' ller or Reveloner's_ r_ eceint of th 7.oni rovalc Town may 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 ef~~Ge4~eral--Rt~a use per-mlt-in accordance with A.R.S. § -1~-5~-2:9-462.01(El. Upon reversion of the Property to its former zoning classification ' , this Agreement shall terminate. Notwithstanding the foregoing, if at the fifth (5th) anniversary of the later of the parties' execution and delivery of this Agreement or Seller or Developer's receipt of the Zoning Ap rp ovals, 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 tfte-industrial --use- 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. the Opening Da~,~ has not occurred by the tenth (10"'~ anni.___ ver~rv of the l~,t_~x~f:~i.~..._hemax~ic~'_~~tic~n..~_clcliv~~a~t~is...A..~.~.~,e~n~nt~.ii)_~ell~r.ax~~v~]:olz:~ar°~..xe~~:ipt-~fS.llc... ~o ' ._ . _ x~zua. _9~----.. ch~~l~1.e~ i. ___h~ a__~ctcrxx~in~co ._~v~l~a ~'s_ chedule of develo~ent of the Landfill or to grant an extension of time or cause the Pronertv to revert to its former zoning classification in accordance with A R ~ 9-462 O1(El whether or not Develo e -e11,~~ in o g hearing=s alZneals or other ad_ministrativ~ctions relating to obtaining anv of the Final Entitlements. 5. Designation of Truck Route; No Rail Spur or Hauling. Developer shall desig~ateRt's~ as~:_ _.~ _ sl_es~nated truck routes for delivery of Waste to the Landfill for the Town's annrwal. 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 Yt~s~as.r. t tossz9s. is 4 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 Approvals"). 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. S. Third Party 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 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. 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 gild ~long~irline Road and Lambert Lane adiacent to the residential ~nertv known as Hap~v Acres 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 k k833i48:1-1 1 1 05 5 2 98.15 netifydeliv written notceao Developer in-writ~g-efsnecine such failure and demand that Developer commence such-litter removal activiry~in~~~o~d_~ withtlas_„Ag_x..c_~xtaent. If Developer fails to cemply- with~Qnana:.etice such rretieelitter_ removal within terr---¢1©)_-dam---fellflwirrgs~~c~I) btts~oes~ay ~zf Developer's receipt f such notice, 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. In addition ~_0~:-day ~ p~~a~~n~~~~~:n.~ _.~s~~~i~Qla~_I..~iu~tla~n=:soh::: _~~:4~_d~~~~ri~d}-~h~_~~:. __e.~~zca peveloner,5 behalf 12. Town Review of Developer Compliance 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 rights of Town under this Agreement or Applicable Law to oversee and inspect the operation of the Landfill and Developer's other obligations hereunder. (b) ~itl~in-si~a}~-(~8} ~lay~ aftur each eIE4.llowing the one-year anniversary of the Opening Day; __._f-rs~ g~®ar -an~nver~arg~ _c~€ -thy--Opening_-IIa-y---arid ~oel~ success~iwe-frve-year-unary-af---the- ratierfi- -L 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. Town may request i ___~ O . xli _~z~tling:Dav aand.~~~~piring._Q.n...~Y_1z~fQr~..ib..~_fi~~.~e~r=,ti~r~~~~:f_th~_4.:1?:~:~?~~:.~~~~?~, any five dear ern iod b~¢;n_nina with thy::::~i~~.ye~t,~ivez~az~!.;of_th~_ Qp:~nin~D~yaztcL~~h.~~~ssv:~~: f~ve_-vear~i~nlyersarv ~f.tl~c Op~i_~v]?~ t~~~'caft~' du~~ng_SI?e_Qp~~a~n..Life_ Town may deliver written notice to Developer reaue tine_a_meetin~ with Developer's representatives and/or an inspection of the r ~ fives 1 v at period If Town delivers any such written notice-®:-itlrir'~-sc~ h-ti~r , 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 srtslr~ 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(al 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 d-1035298:-b 1105 5298.15 (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 Reporting: Closure Plan. (a) Within thirty (30) days after the fifth (5~'') anniversary of the Opening Day, and within thirty (30) days after each successive fifth (St'') 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. A-t the-~~~f--~~-~Op~rati~n-Li€e-o€ thu~Landf~ll~,~-D~~€~pe~,-at-its--s~~~~cest~~~ und -pu,--~ha~~--ad~opt~-c-~®sur-~ r'a« fns-~tho-...P-ray---~b~~~~ to apgrwat by ,~113EQ fal~ow~g th~- re~}ant-s~--of~-~Appl~e~afile~~'L-awws _€or-el~as~~--off ~unie~ipal-s®1~d_-wee-fandft~ls: Dove~~~--sl~ll la~~]-~ "'~Ji'iivutirre cvs~us'~"etixd"iiY~'i-r:li.~. , x1 ~~iH'6LF23d3I~tg-~5--~11vS5--13rOhYV~~~ ivy-n~-~~~y ~ ~~~r~Sxov x~: D°uy~°x f. r tA°-~Sl-~`&i~--~@I3~t43tCt-~ man-made- -h~abitat~---an_ the--~rety---far_ b~urrow~ing--c3w1--e-~amni~uni~;---ice'--habi't~es~ign~--and_ oonste-~i~ shall--b~~~~-~tnde~r~ak~n--w-itfr-th~~op~ration-an~i- ~t-~f thy-ArD~Q-~~ana~~~~stato~'wild~l- aaatheritiut-j~t~s-A>~L~frll-~1es~x~at' bl~-L'~a~ws': (b) t a minimum. Develo erns ouerations of the Landfill ~h~l)_...(~;_~rQV.ide.....tha__~er~meter__ berms be se~d~d and vgQe~4~.~vith native nlap tamlr~tla~t_closely~._r~s_embles f~_surroundine_slesert.. wales p~hibit~d.lay:-A-,=(i~)~~~vd~~foar_,l~~v~1Qp~,r__;ta. ~~si~n..:d ~~~~trupt::~de h~lzttats..W9~._th~ ~~Qperty for kzulx'owng.ovY~._axaaa~~~~s., which hahit3t design 1t~~s~stnaction __sh~Il.be undert~k~~ ~17<1L the.._cooperation and.. Input e~:::tlae. AD~(~. nr Ari~opa st:~te wildliine a~t~ontzesR and._(ttt) an~lude, ~~s~s..: intended to induce habt~ttoaa by burrowing owl conumnnt~~an.~other n~tur~l wildlife, as prepared with the cooperation anal np~a~~~=A~l~ .. or Arizoza~st~~ wal~~e..~tit~~~ite~ but._saab~~~~_to~APl/Q la~df~)<... s~o~ur.~, ~e~.~lat~o~~and ~tlaex-~.p~n1~~a1~le ~~w~_ (c) At ~~.e~d o~tlae Operation,,Life,of the Landfill, Developer, at its sole cost and.. expense,.: shall adopt.. closure~lan for the Property subicct to annmval by ADEQ followi~,~ the. requirement~__o~_ Ap_nlicablc Laws,, for closure ofmmuaaicipal solid waste ,1~nd~tlLs : a2ev~l~er,sh~1,1 be ~oaasible #~x~llv, closurc,,ai~l pQS~lostus; ~sis_aud expenses.,::: 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. ==°53?°E-'.i11055298.t5 7 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 Brawley Wash; Maintenance. f®l~g~'Qllov.._ui:~g 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 BD attached hereto and commonly referred to as the East Branch of Brawley Wash. ~fEo11Q~i__gn delivery of such notice-te 'fetivn, Town shall netif~ma~~iY.er.:tv_titl~n:_nQti~~_~Q Developer- ~writ-ing of Town's election to e~accept -such dedication~Q 1~ as._su~h not~._.~e..~is delv~red_. prior to the Closing Dav. If Town elects by written notice to Developer duri~ag s~aek~ ~it3'-{9~) -day- pe~ied-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;-anFl--(iii subect to Develo ear r~~~g. rigs during the Operation Lifey to~onduct periodic maintenance or repair 3s--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 durine the Operation Life. If Town fails to give any written notice to Developer f Town's acceptance o~-r~~tien-of the dedication of the East Branch of Brawley Wash, Tew~ @y . __.. shall , c t" h fi~ h lit--t1~ .. ., ..... .. ~ ..b~, W-asla.remain t~hli~ated to underlak~ S~~ch periodic maintenance and repairs durin tg he Operation Life 17. Force Majeure. 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, freight 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(bl. 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 nineL~n percent (41Q%) of the total amount due for said quarter. (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 '~^.'r'.,2°&:1-1.1 L055298.15 CPI Less Energy~~r the period corrLmencing=with the then curr~,t~t ~~e I, naeXeiri~~~n the last day of the_~.~l~ndar~m~,h~_.. ~ -1~'_.-1~_ra.~ar_t.~tli:~~ea a~nniv~r.'sary_of the then~uxrent~Bas~=Ins~~. On each Review Date, a~~lncteas~_i~__the Host Fee shall be -inc~eaey--any-positives-~en~ge-elrange- 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 exiting-enf ~~n~ar month Main the~~_a;z_~f 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 enfor calendar month April in the _ e~ 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 the "Host Fee ,imit"l; provided, however, that site-h-limit(il the Host Fee Limit shall not require any Host Fee already in effect to be reduced below its then current rat . --La°,~~ E....~~`) .~',uo.,d-ii~aivi~c°~a~c....iY~x~-th~--H , > Energy-based adjustment-te-the-H®~st-Fee-e-laim-as Rart-e£ sue-h-aclju~ -e€any -prier-year-'-~ and (iil the amount of uch PI Les .nerev-based increase in the Host Fee that would annlied to subsequent v~ar increa~es_in _the_Host Fee. solone as the Host Fee Limit is not exceeded. 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~) 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 21 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. ~:10"'O~~~Q--.-." 11055298.15 (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 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 and the costs Q~ the Independent... Accountants upon presentation of receipts or other reasonable documentation thereof. T~ cos; ®~ the~~ wm`che=v`vr-ptari~ i.~ rivi i~3A.°~14bSrtf4ntpa-ll~j¢-~reVx~ili~]:g""pA~ i n eta 1'x rv°v v°:'v x^a . " .. " ~'~305~°~3AS~°ti®~-0~°°th@-di~i~p~kt~- ~--ga~est~ien; -as---fl~ly~-~~-printed---te-~-~h~---Indufs~adent -A~or-n~ants;_-~s--c~®~st~~~~~~~~to~---tha---~depend~t (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) ~-shall- ree~i~--the Fl~ast---payrnents enly-~vilh~-t--t~-Ne-t-Te~n}ag€-that--i~- « >, .TO.,~~~b~i iossz9s. ~ s 10 19. Free Public Access. On one Saturday in March and one Saturday in October (each as selected by Developer) during the Operation Life-As-~t~ ~~.in~ed-by~,~w1~Y„a, Developer shall allow each Town household (and all households not within the Town but which are located in the geographic area depicted on Exhibit ~~ attached hereto) to deliver Waste directly to a site designated by Developer at the Landfill free of charge. 1~[szta~~~~~o~_P~a__~la.~ be published at least two (21 weeks in advance of such free public access date in a local Marana news~aner reasonably acceptable to the Town The costs of such notice shall be for Developer's Cole account. 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 ~~, 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 ~, 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 = 1 + [(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 a-~o-s~zaE:~.~-t iossz9s.is 11 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 neighborhoods determined by Town within Town limits and/or any neighborhood outside of Town limits but within the geographic area depicted on Exhibit ~ 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. If Devel~ner must relocate and dispose of Waste deposited at the Landfill may credit its full costs of such relocation and disnosal of such Waste against Host Fees movable to Town. If~eveloner exercises its right to credit such costs against Host Fees navable to Town Develoner shall ~xszusl~~.._TQwn. uv..th._receit~ts~ar~h~r_~.Qlzxiate_...eYisienc.~£J~_~u~a_per_s_cQSt~_~zf~~hr~ation anc~ s~ispo~al 9 such ax~eligilzle Wash 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 to a source located 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 ~E 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 1-1053298:1-1 1 1 05 5 298.15 12 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. 24. own-Generated Waste Developer shall allow Town to dic ose o uali i T,~ own-generated Waste eligible to be deposited in the Landfill at a rate equal to the lesser of (al ninety percent (90%1 0~ tla~~u~l.i~h~~~ga~:~r~t~~nxh~_slat~~:afsl~lzcz~at::~ox ~ ~h~_1Q~~s~t~amm~x:~ial_yeJzic~le rate~~u~~ch~arg~~, b~I?~yeloner at t ~ Landfill o~ the c~a~e ~~..d.~nosit. To~y_~.:~e11~xated Wa~~~~],ifving for such diseQ.unt. Waste mixed with other Waste hall not be eligible for such discount and Developer shall have no Q~gation to separate Town-generated Waste from other Waste delivered to the Landfill 25_.: 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 ~ 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. 2S-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. _ 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. 2Z_ Other A~~ Val =r~ss~nQ-~~ i iossz9a.is 13 (a~ k_ollo__.~ving the second__anmversa~_of~~0..peningc~~y,_the. Town mav.__deliver._written notic~to~~.v._~I:szp~rx~qu~~tix~~a tz~ffic s~gual~~the~~aatc.~~ecttoxiszzfAvx~:..~llcy_R.Q.asl..ansi S~ndar~QR~zasl: M.aran~ _AxizQ ..~ztiadcd__tktat__s-tcb_noticcsp t.' -- Qctc.~.. ___ih _~n__in_ accordance with the latest edition of the Manual on Uniform Traffic Control Devices concludin t..._.._.. hg,, at the traffic signal is warranted Developer shall design and install such,,,tx~ffts~gt~at the intersection o~ Avra Vallcy.,~oas~ anal Sandario RQadT Maxa~ary;;®xizona on or before the one-v~ear anniversanr of deliver y~ff the Town's notice reauestin~e,~1a1_ (b) ~6:-Its ~ ;~ ~r no.~ ri u.=.=.....,z...._a,®a~--~ m~_~~ a-s~e-t~®m.~ e~me~~~;---N®~lat~r-~-two-{~-tears - followingPriszx_ tsz the Opening DateD~, Developer shall-(a)-design and install-a-truff~c signal-at-the- interseet~r~-af~ vr~~alley--Road-and-~andarie R~u~, 1`~I~ru~n,-~4rizona; acid-(b3 design and construct in accordance with P--irna CeuntyTown standards aright-turn lane on eastbound Avra Valley Road at Sandario Road and aright- turn lane on northbound Sandario Road at Avra Valley Road. (c) Prior to the Opening Dav Developer shall design and construct in accordance with Town tandards a right-turn lane on westbound Avra Valley Road at Sanders Road. (d) Prior to Onenine Dav. Developer shall provide slurry seal and/or ~asph~y..J n t ap roximate ,v S1X (61-mile segment of Avra Vallev Road between the current East Marano Town line and the. current West Marana Town line located iust west of the proposed Landfill entrance as mutually aureed r v TQ~v_~ li I. b.~.~ta..itaa _~vec~ i th. _ _~ r . Developer's slurnr seal and/or asphalt overlay work. 28_ ~:--Brawley Bridge Improvement. Developer, at its sole cost and expense, shall provide for such repairs and upgrading of the East Branch of the Brawley Wash Bridge on Avra Valley Road--new rnile~ -mares- ~] as are necessary to maintain the current 80,000 pound rating for such bridge (the "Brid~?e 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. 29_. ~B-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 Area", as set forth in that certain Amended and Restated Easement dated November 30, 2009 (the "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. 2~: ~~tumm~m~m®_n: _. Theparties--aek~edge sec-tion-04~S5.9F~ and 04:-0x:07-of-the_~'®wn-Land 1.103-5~8:-1-X11055298. l5 14 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 ~- max- r ~m sel ~7rs'~ed retention -:rf ~8-,998: __.._._...... ~n ___..._ ..............................__. ~ . _..__...............____._..._n ~ ... _........._..._ _~:5,44Q~QQ4~sLlarlg::~:~~,~.~.eyelszpex:_ ~,px~~ide~~~=.:1_~t~~x Qf_~~x~it: Qx__1_?c?:ns_1_~~a_x__~~~~a~~~a~~~~~~~q~al _t~_ tkl faithl that Developer has current financial worth and/or mancial stability sufficient to satisfy such self in urance ri k. 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. If to Developer: DI{I. Holdings, Inc. Attention: Larry D. Henk 4050 W. Ray Road, #17 PMB 209 Chandler, Arizona 85266 Fax: (480) 419-3543 If to Town: ~rilbe.~ ]~aviclso~'LQ~va~~nager ______ ~ _.. ~ .._ .......:....._._.__Marana Munici an 1 Complex 11555 W. Civic Center Drive M.~Ca~na~~ri~~n~$~65~ ~~ass-zs a.~iiossz9s.is 15 With a copy to: 1~ranks___assdy,._Town_Attornev. .. _.___._____.__..___._ _.__ Maranal~iuna. ~Qmpl~x __...._..........._..-._______._ __._. ~ f~~~~Ca_ui~ ~cnt.~...~2xav~. 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 twos 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 Agency Relationship, 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. 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. ^"'.,~~9o4.' 111055298.15 16 43. Severabilitv. 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] k-103-5298:1-1.11055298.15 17 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. Notary Public My Commission Expires: :'r^',~~~'OS:-1-NI 1055298. I S 18 DKL HOLDINGS, INC., a Delaware corporation By: _ Name: Title: 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: H. KAI FAMILY NG1, L.L.C., an Arizona limited liability company By: _ Name: Title: 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. Notary Public My Commission Expires: 1-103329$:4-t 11055298.15 19 EXHIBIT A PROPERTY ~_~oss~as.: ~-i~2ssas EXHIBIT B CPI DATABASE PRINT-OUT 4.1035298: 4 d 1,].Q~.52,28..LL~ EXHIBIT CPI LESS ENERGY DATABASE PRINT-OUT d-d053295~ d d LLQ~~248..1.,~ EXHIBIT E BRAWLEY WASH DESCRIPTION 1.}4359&.-~-IllQS 9$.x.15 EXHIBIT F MAP FOR FREE PUBLIC ACCESS ~-1055298: 4 ~ 1.145.4228,.15. 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CIVIC CENTER DRIVE, MARANA, ARIZONA 85653 COUNCIL CHAMBERS, August 10, 2010, 6:00:00 PM To: Mayor and Council Item D 3 From: Cedric Hay ,Senior Assistant Town Attorney Strategic Plan Focus Area: Progress and Innovation Subject: Presentation: Discussion of proposed changes to Title 16 (Signs) of the Marana Land Development Code and other possible regulations addressing signs in the public right- of-way Discussion: This study session item is presented to explain and discuss sign code changes that are scheduled to be brought to the Town Council for consideration and possible adoption at the September 7 meeting. Staff is seeking feedback from Council on the proposed changes and. any additional changes Council may request, including possible revision of regulations relating to signs in the public right-of-way. The backup for this item includes the current drafts of the entire package of sign code and wayfinding (kiosk) program documents proposed to be brought forward on September 7. The following is a summary of the key changes being proposed: . Modify Section 16-09-04 Political Sign- delete the setback requirement on the property and delete the date on which signs can be installed. . Modify Section 16-10-O1.C.2 Permits- slight changes to the wording so that a single, four square-foot political sign would more clearly be allowed by this section without obtaining a permit. . Delete Section 16-11 Fees- this section was added to the Town's comprehensive fee schedule and is no longer needed in the LDC. . Modify Section 16-14-17 Service Station Sign- renamed it to Fuel Sign, simplified it to indicate the amount of square footage of fuel prices that can be on various types of signs and allow for the fuel price to be displayed electronically. . Delete Sections 16-14-08 Construction Sign and 16-14-29 Temporary Construction Sign- these sections were very similar to two other sections (16-14-27 and 16-14-28), therefore; the four sections were combined into two sections. . Modify Section 16-14-27 Development Sign- this type of sign can be displayed on property being developed to identify the name of the development and other information such as proposed tenants and opening dates. The sign area was increased to 64 square feet from 40 feet and the setback reduced to 10 feet from 15 feet. This modification also states when this sign can be installed. Modify Section 16-14-28 Developer, Contractor and/or Subcontractor Identification. Sign- this type of sign can be displayed on property being developed to identify who is involved in the developing, construction or financing of the project. Changes to this section bring it more into conformance with requirements of Section 16-14-27 with regard to location of the sign and when one can be installed. Delete Section 16-14-37 Off-Premise Development Kiosk Sign Program- this section of the code sets the requirements for way-finding signs that are located within the Town rights-of-way directing traffic to new residential subdivisions. Staff proposes to remove the program for these type signs from the LDC and create a new separate policy by resolution (also attached with the backup materials) that is also scheduled to be adopted on September 7th. The Kiosk provisions were the subject of a May 18 Council Study Session. Modify Section 16-15-01 Violations of this Title- added Subsection 16-11-02 to this section due to the fee section being deleted. There are no changes to the wording. For political signs, the proposed sign code changes only affect the setback requirement on private property (eliminated) and the elimination of permitting requirements for single, small (not larger than four square feet) signs on private property. Signs are still prohibited in the Town's right-of- way. Marana's political sign regulations are consistent with those in the City of Tucson and the Town of Sahuarita. The Town of Oro Valley has taken a novel approach by establishing 12 "Temporary Sign Zones" within their town right-of-way. Within these zones any non-commercial signs which meet certain size and height requirements are allowed without the need for permits. While the zones established by Oro Valley create an opportunity for non-commercial speech, they also come with added duties for their town staff. Those who post signs in these areas are not required to obtain permits, so the areas must be monitored by town staff to ensure compliance with the size and height requirements and to make sure that only non-commercial signs are located in the areas. The claimed benefit gained by concentrating political signs in certain designated areas must be balanced against the added staff time and the fact that signs are still allowed with a permit on private property. Town staff plans to bring the changes described above for possible adoption at the September 7 Council meeting. Any additional changes requested by Council based on the discussion at tonight's meeting will be brought forward separately. ATTACHMENTS: Name: Description: Type: O ORD_revisny_Sign_Code_Proyisions_(00022105- ORD Adopting Sign Code Changes Backup Material 2. ~.DOC ~ Reso declarng_sign code changes a~ublc_record_ (00022104).DOC Public Record Reso re Sign Code Changes Backup Material ^ 201.0_Sign_Code_Revisions_(00022107).PDF Exh A to PR Reso: Legislative format sign code Backup Material changes O Reso adopting Town-managed_kiosk~rogram_ Reso Creating Town-Managed Wayfinding Backup Material (00022054). DOC Program Staff Recommendation: Staff requests Council's feedback and direction regarding the proposed changes to the sign code. Suggested Motion: I move to direct staff to move forward with the proposed changes to the Town's sign code. MARANA ORDINANCE N0.2010.XX RELATING TO LAND DEVELOPMENT; AMENDING MARANA LAND DEVELOPMENT CODE TITLE 16 (SIGNS) BY DELETING SECTIONS 16-11-01 (INITIAL FEES), 16-11-02 (WORK PERFORMED WITHOUT A PERMIT), 16-14-08 (CONSTRUCTION SIGN), 16-14-29 (TEMPORARY CONSTRUCTION SIGN), AND 16-14-37 (OFF-PREMISE DEVELOPMENT KIOSK SIGN PROGRAM) AND BY REVISING SECTIONS 16-09-04 (POLITICAL SIGN), 16-10-01 (PERMITS), 16-14-17 (SERVICE STATION PRICE SIGN), 16-14-27 (DEVELOPMENT SIGN), 16-14-28 (DEVELOPER, CONTRACTOR AND/0R SUBCONTRACTOR IDENTIFICATION SIGN), AND 16-15-01 (VIOLATIONS OF THIS TITLE); AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS the Mayor and Council of the Town of Marana find that the revisions adopted by this ordinance, which revise, modernize, simplify, and eliminate inconsistencies in Marana Land Development Code Title 16 (Signs), are in the best interests of the Town of Marana and the .general public. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, as follows: SECTION 1. The amendments to Marana Land Development Code Title 16 (Signs), deleting sections 16-11-01 (Initial Fees), 16-11-02 (Work Performed Without a Permit), 16-14-08 (Construction Sign), 16-14-29 (Temporary Construction Sign), and 16-14-37 (Off- Premise Development Kiosk Sign Program) and revising sections 16-09-04 (Political Sign), 16-10-01 (Permits), 16-14-17 (Service Station Price Sign), 16-14-27 (Development Sign), 16-14-28 (Developer, Contractor andlor Subcontractor Identification Sign), and 16-15-01 (Violations of this Title), three copies of which are on file in the office of the Town Clerk of the Town of Marana, Arizona, which were made a public record by and attached as Exhibit A to Resolution No. 2010-XXX of the Town of Marana, Arizona, are hereby referred to, adopted and made a part of this ordinance as if fully set out here. SECTION 2. Section 16-15-01 (Violations of this Title) of the Marana Land Development Code as revised by this ordinance provides: 16-15-01 Violations of this Title A. Any person, firm, entity or corporation found to be in violation of any of the provisions of this Title shall be guilty of a civil infraction and subjected to a maximum fine of $500.00 for each violation, in addition. to any other civil penalties which may attach. B. Each sign and each day a violation continues shall be considered as a separate offense. - 1 - 8/4/2010 9:50 AM FJC C. When work for which a permit is required by this Title has begun before a permit has been obtained, the fees shall be doubled, but the payment of such double-fee shall not relieve any person from complying fully with the requirements of this Title in the execution of the work, or from any penalties prescribed herein. SECTION 3. All ordinances or parts of ordinances in conflict with the provisions of this ordinance are repealed as of the effective date of this ordinance; provided, however, that this repeal shall not affect the rights and duties that matured or penalties that were incurred and proceedings that were begun before the effective date of the repeal. SECTION 4. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, the decision shall not affect the validity of the remaining portions of this ordinance. SECTION 5. This ordinance is effective on October 8, 2010. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 7~` day of September, 2010. Mayor Ed Honea ATTEST: APPROVED AS TO FORM: Jocelyn C. Bronson, Town Clerk Frank Cassidy, Town Attorney - 2 - 8/4/2010 9:50 AM FJC MARANA RESOLUTION N0.2010-X:XX RELATING TO DEVELOPMENT; DECLARING THE AMENDMENTS TO MARANA LAND DEVELOPMENT CODE TITLE 16 (SIGNS) AS A PUBLIC RECORD FILED WITH THE TOWN CLERK. BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, that the amendments to Marana Land Development Code Title 16 (Signs), a copy of which is attached to and incorporated in this resolution as Exhibit A and three copies of which are on file in the office of the Town Clerk, are hereby declared to be a public record and ordered to remain on file with the Town Clerk. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 7~' day of September, 2010. Mayor Ed Honea ATTEST: Jocelyn C. Bronson, Town Clerk APPROVED AS TO FORM: Frank Cassidy, Town Attorney 8/4/2010 9:53 AM FC EXHIBIT A TO MARANA RESOLUTION NO. 2010-XXX Amendments to Marana Land Development Code Title 16 (Signs) adopted pursuant to Marana Ordinance No. 2010.XX SECTION 1. Section 16-09-04 (Political Sign) of the Marana Land Development Code is hereby revised as follows (with deletions shown with °*r'~n~ and additions shown with double underlinine): 16-09-04 Political Sign A. Temporary election signs, which support candidates, issues, or any other means on the ballot of primary, general or special elections are allowed in all zoning districts upon .the application of a blanket permit which shall apply to any election signs erected within the Town boundaries. except those exempt under section 16-10-01 (Cl (21. The individual or organization erecting the sign shall file with the Planning Director or their designee a sign permit application designating the name, address and telephone number of the individual responsible for the installation and removal of the sign-~~„~h~ B. The sign shall not be located within the dedicated public rights-of-way~d Than fifteenT1~)-feet frem the~age ~f-paver~ea+ °f ., .,ri,,.,+° ~+r°°+ and shall be limited to an area that is outside the sight visibility triangle of any roads or driveways. G.The-signs hall net-~e~ sta:4ed ^,^r° +h.,r, +,.,~+~2g~rs"ti pl°n+i°n in u~hinh +h~ ~n nv~d"t°vc nr i ~ ~°c ~+r° +° h° yin+°rl °n rc........ ~ ~ . . ... ra ~C• The signs shall be removed no more than five f5}-days after the election. €D. The maximum square feet of each sign shall not exceed ++"~32~ square feet. ~E. The signs shall not be greater than ten {-a-A}~feet in height from grade. ~F. The signs shall not be illuminated. k1-G. Such signs shall not be placed on utility poles or ny authorized traffic sign, signal or device. ~Fi. A blanket permit fee in an amount established by a fee schedule adopted by the council and amended from time to time is required for litical elest+e+~ signs authorized. by this section. ~I. Any and all violations of this section shall be subject to the penalty provisions contained in this Title. SECTION 2. Section 16-10-01 (Permits) of the Marana Land Development Code is hereby revised as follows (with deletions shown with ~*~~ and additions shown with double underlining): - 1 - 7/13/2010 8:13 PM EXHIBIT A TO MARANA RESOLUTION N0.2010-XXX Amendments to Marana Land Development Code Title 16 (Signs) adopted pursuant to Marana Ordinance No. 2010.XX 16-10-01 Permits A. Any property owner or authorized agent who possesses an authorized letter from the owner of the property on which the sign is to be installed may apply for a sign permit. B. The applicant shall submit to the Planning Director or their designee the following information: 1. The following information as required by the Planning Director: i. A site plan for freestanding signs, including a north arrow, a legal description, dimensions of the required setbacks and location of the property lines, buildings frontages, roads and proposed signs; ii. A description, in the form of a sketch, of signs attached to a building, a building wall, building frontage and proposed and existing signs with their sign areas; and iii. A sign description in the form of a sketch of the proposed sign, showing the sign area dimensions, structural supports, height, clearance, copy, illumination, colors and materials. 2. Signs which are to be illuminated electrically shall require a separate electrical permit in conformity with the Town Electrical Code, which shall be issued by the Town's Chief Building Official. C. A permit is not required for the following signs or sign alterations, but all such signs and alterations shall- be subject to all pertinent provisions of this section: 1. Signs required by this Title as listed in article 16-8; 2. A single sign no larger than four {4~square feet exhibited by the owner ~s~r+ete~-or n n ;e~see-of a parcel or premises and which is located on the parcel or premises-~.; 3. Repainting without changing wording, composition, or colors; 4. Non-structural repair other than electrical repair; 5. Relocation of a sign as required by Town; and 6. A window sign, non-illuminated and having an area of four {4~square feet or less. D. Every permit issued under this Title shall become null and void, if the work authorized by such permit is not completed within ~-1ee~/-{903 days from the date of issuance of such permit. If a permit expires before the work is completed, a new permit shall first be obtained and the fee'"'"°~~shall be one-half {~}of the amount. required for a new permit for such work, provided no changes have been or will be made in the original plans and specifications for such work. - 2 - 7/13/2010 8:13 PM EXHIBIT A TO MARANA RESOLUTION NO. 2010-XXX Amendments to Marana Land Development Code Title 16 (Signs) adopted pursuant to Marana Ordinance No. 2010.XX E. Approval of the sign permit shall be at the discretion of the Planning Director or their designee and such approval shall be required for all signs, with the exception of those signs that are specifically exempted by this Title. F. A denial of a sign permit by the Planning Director may be appealed to the Planning Commission pursuant to section 16-10-02. G. Permits for temporary signs shall be issued by the Planning Director only when the sign is specifically allowed by this Title. Temporary sign permits shall be issued and renewed only for periods of six (6) months. Subdivision signs may be allowed until the last residence is sold. Temporary signs shall be permitted in all zones unless otherwise specified. SECTION 3. Chapter 16-11 (Fees) of the Marana Land Development Code, consisting of Section 16-11-01 (Initial Fees) and Section 16-11-02 (Work Performed Without a Permit), is hereby deleted, and the title of Chapter 16-11 shall be shown as "[RESERVED]." SECTION 4. Section 16-14-08 (Construction Sign), Section 16-14-29 (Temporary Construction Sign), and Section 16-14-37 (Off-Premise Development Kiosk Sign Program) of the Marana Land Development Code are hereby deleted, and those section numbers shall be shown as "[RESERVED]." SECTION 5. Section 16-14-17 (Service Station Price Sign) is hereby revised as follows (with deletions shown with ~+rv~ and additions shown with double underlining): 16-14-17 Fuel Price "one-serv~statien~rise-sigri er~asla s~-eet ~"r~gc sh^II ham.,-~-a'.;Q:~ed. A. ~-The maximum s+~--area of the fuel price s~bsershall be: Z +~•~°~25} square feet when it is a component of a monument sign. 2. 40 s uare feet when it is a component of a freestanding sign. 3. 40 sauare feet when it is attached a fueling area canopy. provided that he fuel price shall be located on only one side of the canopy and shall not extend beyond the frame of the canopy. B. The fuel price may be displayed electronically. ,r-r c4n4inn nrin° c~irrn chill n°# h° in n°nflin# ~~ii#h 4h° nrn~iic~innc of the ., . sP{1f~6e-v T°um~c #rn~n r °nfn r°In#inn 4n c~inh# ~iioihili4~i #ri-,n.,l°o chnll h° r+nc#°rl uii+h #h° nnrr°n4 nrin° ~++ •+11 #im° • ~ > > - 3 - 7/13/2010 8:13 PM EXHIBIT A TO MARANA RESOLUTION NO. 2010-XXX Amendments to Marana Land Development Code Title 16 (Signs) adopted pursuant to Marana Ordinance No. 2010.XX F.A-service--QCGti.~.n nrino c~ir~n m h.~ .+++.+nh~r! +~ ,+ free +.+nrlinr~ inn if i+ i be arehitee~arally--se-~pat+f~:~w+th *-~",~-~aildTpg ^n,~ nh.,ll n„+ o.,,.oo,~ movim~ ~m hoinh+ of e.iv /R\ f.»+ 6~se~ise~-stat~er~--~~~ign rna7~~disp;aped +ho m.,in h~,+., „f ~,lo oinn h + h.+ll + nc+e+rl fif4„ /[.(10%\ nnrnon4 „f +ho m~+in reestandin9~o~~ ~~y„ o'a'c vi,vrr-~~vc cicccvv~-rrcy~~pcr«cn jinn ~re~ ~r +u,o n+v_fivo /7lC\ cn~ roro foo+ ~~,hinhovor is +ho lonc.+ .+mn~ m+ e SECTION 6. Section 16-14-27 (Development Sign) of the Marana Land Development Code is hereby revised as follows (with deletions shown with °'~-'~ and additions shown with double underlinin>?): 76-14-27 Development Sign A. A development may have one {~-freestanding sign on each street which abuts the development and the sign must be placed on the property being developed. B. The text of a development sign may include the name of the development and/or subdivision, the name and phone number of the developer or his/her agent, tenants. opening date. the price range of units to be available, and information essential to contacting the developer or agent. C. The area of a development sign may not exceed 64 #e~y-(4A}-square feet, a sign may be single or double-faced and shall be located at least ~€~€teert {~}-feet from the property line or right-of-way. D. The height of a development sign may not exceed eight (}feet. €. !~ de~eGTITOi9T "'--n-m'yv°c-11ii~amiiaicdvTinr~dirc^v+ciig~i+rm^cf. E. A development Sian shall be allowed only if a grading permit. development t~lar~._or subdivision plat has been approved for the site or a building permit has been issued for construction on the site. F. A development sign shall be removed within ten /1~days after the completion of the announced development. SECTION 7. Section 16-14-28 (Developer, Contractor and/or Subcontractor Identification Sign) of the Marana Land Development Code is hereby revised as follows (with deletions shown with ~"-'~ and additions shown with double underlining): 16-14-28 Developer, Contractor and/or Subcontractor Identification Sign A. A development and/or developer, contractor, ate-subcontractor, and lender participating in building or construction work may be so identified by having the names of the respective firms displayed on a sign conspicuous to the public. - 4 - 7/13/2010 8:13 PM EXHIBIT A TO MARANA RESOLUTION NO. 2010-XXX Amendments to Marana Land Development Code Title 16 (Signs) adopted pursuant to Marana Ordinance No. 2010.XX B. All agencies or firms desiring to be identified shall be displayed on the same sign. C. One {-~-identification sign shall be allowed on each street which abuts the development and the sign must be placed {^~ °'^" ^~^~^r °^+n, ,. ;,,+° +"° n the property being developed. D. An identification sign shall have an area no larger than #e1~-(403 square feet nor a height in excess of eight {g-}feet. E. An identification sign may be freestanding and may be single or double- faced. F. An identification sign shall be at least ten ~~°rfeet from the property line or right-of-way. G. An identification sign shall not be illuminated. H. The legend appearing on an identification sign shall be limited to identifying the firms contributing to the development. That is, in addition to identifying the developer, the sign may identify also the firms that provided the engineering and architectural work, the firm(s) providing the primary source(s) of financing and the principal subcontracting firms. I. A identification sign shall be allowed only if a grading permit. development plan. or subdivision plat has been approved for the site or a building permit has been issued for construction on the site. ~,1. An identification sign shall be removed within ten {a-A~days after the work of the contractor or last finishing contractor has been done. SECTION 8. Section 16-15-01 (Violations of this Title) of the Marana Land Development Code is hereby revised as follows (with deletions shown with s~l~eeuts and additions shown with double underlinins?): 16-15-01 Violations of this Title A. Any person, firm, entity or corporation found to be in violation of any of the provisions of this Title shall be guilty of a civil infraction and subjected to a maximum fine of $500.00 for each violation, in addition to any other civil penalties which may attach. B. Each sign and each day a violation continues shall be considered as a separate offense. . When work for which a permit is required by this Title has begun before a permit has been obtained. the fees shall be doubled. but the payment of such dou le-fee shall not relieve anv person from complying fully with the requirements of this Title in the execution of the work. or from anv penalties rescribed herein. - $ - 7/13/2010 8:13 PM EXHIBIT A TO MARANA RESOLUTION N0.2010-XXX Amendments to Marana Land Development Code Title 16 (Signs) adopted pursuant to Marana Ordinance No. 2010,XX SECTION 9. Each existing kiosk sign installed pursuant to Land Development Code Section 16-14-37 (Off-Premise Development Kiosk Sign Program) as it existed before the effective date of this ordinance is permitted to remain in place until December 31, 2011, subject to the following requirements and provisions: A. The kiosk must be covered by a current, valid Marana right-of--way license agreement. B. The kiosk must conform to the kiosk sign program as it existed before this repeal. C. The kiosk may not be expanded beyond its size as of the effective date of this ordinance. D. The kiosk may be replaced with a new kiosk in the same location, provided that the new kiosk is then removed no later than December 31, 2011. E. Existing kiosks that must be moved for any reason prior to December 31, 2011 may be relocated at the kiosk owner's sole expense to the nearest possible location that does not create a traffic hazard, as determined by the Town Engineer, provided that the relocated kiosk is then removed no later than December 31, 2011. - 6 - 7/13/2010 8:13 PM MARANA RESOLUTION N0.2010-~:XX RELATING TO TRAFFIC AND HIGHWAYS; ADOPTING A REGULATORY WAYFINDING SIGN PROGRAM TO REPLACE THE "KIOSK" PROGRAM UNDER THE MARANA LAND DEVELOPMENT CODE, AND AUTHORIZING THE TOWN MANAGER TO ADMINISTER THE REGULATORY WAYFINDING SIGN PROGRAM WITH THE TECHNICAL GUIDANCE OF THE TOWN ENGINEER. WHEREAS the Town of Marana has had a "kiosk" sign program in the Marana Land Devel- opment Code since 1996 (the "LDC Kiosk Program"); and WHEREAS the LDC Kiosk Program allowed certain wayfinding signs to be installed and managed by a private contractor within Town rights-of--way; and WHEREAS the Town's Legal Department has advised that wayfinding signs of the type al- lowed by the LDC Kiosk Program are more properly treated as regulatory signs and managed by Town staff in the same manner as other regulatory signs; and WHEREAS the wayfinding "kiosk" sign program established by this resolution (the "Regula- tory Wayfinding Sign Program") is intended to replace the LDC Kiosk Program, which is being eliminated by separate ordinance concurrently with the adoption of this resolution; and WHEREAS the Mayor and Council of the Town of Marana find that wayfinding signs of the type authorized by this resolution reduce traffic hazards and minimize sign clutter in the public right- of-way; and WHEREAS the Mayor and Council of the Town of Marana find that the public interests are best served by the creation of the Regulatory Wayfinding Sign Program. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, Arizona, as follows: SECTION 1. The Town of Marana"Regulatory Wayfinding Sign Program" more particularly described elsewhere in this resolution is hereby established, and the Town Manager is hereby autho- rized to administer it with the technical traffic safety guidance of the Town Engineer. SECTION 2. The following definitions apply to this resolution: a. A "Regulatory Wayfinding Sign" is a Town owned and designed multi-panel sign placed at strategic locations within the public right-of--way that assists the motoring public to find loca- {00022054.DOC /} - 1 - 8/4/2010 9:45 AM tions that visitors and others who do not have a regular and easy acquaintance with Marana are likely to have a difficult time finding, such as public and quasi-public facilities and new residential developments. b. A "Kiosk" is a sign legally installed and properly maintained under the LDC Kiosk Program.. SECTION. 3. The Regulatory Wayfinding Sign Program shall operate under the following general guidelines: a. General guidelines: i. The Town will prepare a standard Regulatory Wayfinding Sign detail, including overall sign and individual plate dimensions, lettering style, and architectural treatments. ii. Regulatory Wayfinding Signs shall be designed to have a minimum of six plates with the ability to expand to six additional plates by mirroring the style. iii. Until January 1, 2012, a Regulatory Wayfinding Sign shall 'not be installed within one mile of any existing Kiosk without the prior written consent of the contractor or contrac- tors who installed all existing Kiosks located within one mile of the proposed Regulatory Wayfinding Sign. iv. Fabrication, installation, maintenance, and removal ofRegulatory Wayfinding Signs and plates may either be accomplished using Town staff and equipment or using a contractor as set forth below. b. Regulatory Wayfinding Sign contractor guidelines: i. If town staff chooses to use a contractor for the Regulatory Wayfinding Sign Program, Town staff shall solicit bids for fabrication, installation, maintenance, and removal of Regulatory Wayfinding Signs and plates based on the standard detail. ii. The Town will award the contract for fabrication, installation, maintenance, and removal of Regulatory Wayfinding Signs and plates to the successful bidder for three years with the ability to extend the contract for one additional three-year period. iii. The successful bidder shall install, remove, and maintain Regulatory Wayfinding Signs and plates at the Town's direction, as a contractor to the Town. (1) The contractor shall obtain a Marana right-of--way permit for the installation or re- moval of Regulatory Wayfinding Signs and shall meet all right-of--way permit re- quirements for plans, traffic control, and insurance (2) As a contractor for the Town, the successful contractor shall not be charged right-of- way permit fees in connection with its work under the Regulatory Wayfinding Signs contract. (3) After installation, each. Regulatory Wayfinding Sign is a Town asset covered by Town insurance. c. Regulatory Wayfinding Sign application guidelines: i. A party desiring to have their project included on a Regulatory Wayfinding Sign plate shall submit an application to the Town and pay the application fee. {00022054.DOC /} - 2 - 8/4/2010 9:45 AM ii. Ifthe Town approves the sign plate application, the applicant shall pay the applicable fa- brication fee or fees and the first year's maintenance fee. iii. Upon receipt of the fabrication fee and the first year's maintenance fee, the Town will execute a task order to the contractor to fabricate the applicable Regulatory Wayfinding Sign or signs and/or plate or plates. iv. Fees for Regulatory Wayfinding Sign plates for Town facilities shall be waived, but the Town shall be responsible for the contractor's costs of plate fabrication. d. Regulatory Wayfinding Sign location guidelines: i. The Town shall determine and control the location of all Regulatory Wayfinding Signs. ii. The location of each Regulatory Wayfinding Sign shall be approved by the Town Engi- neer for safety, giving due consideration to all of the following: (1) Clear zone issues. (2) Sight visibility issues. (3) Driver distraction issues. iii. Regulatory Wayfinding Signs shall be located only on Town arterials and collectors, and only at the following locations: (1) Preceding major intersections (guidance). (2) Following major intersections (confirmation). (3) No closer than one mile intervals for roads with no major intersections (confirma- tion). e. Regulatory Wayfinding Sign plate copy guidelines: i. The Town shall control the copy of all Regulatory Wayfinding Sign plates. ii. Plate copy is available s for the following allowable uses: (1) New residential subdivisions located in Marana (a) Plate legend must include builder name (b) Plate legend may also include builder logo (c) Plate only allowed after a sales office is operational (d) Plate is removed when sales office is closed or no longer selling subdivision lots/homes in Marana (2) New residential apartment complexes, condos, and time-shares located in Marana (a) Plate legend must include project name (b) Plate legend may also include a logo (c) Plate only allowed after leasing office is operational (d) Plate allowed to remain while construction is ongoing and until six months after C of O of most recently completed residential building {00022054.DOC /} - 3 - 8/4/2010 9:45 AM (3) Public and quasi public destinations (a) Government facilities open to the public (b) Urgent care, hospitals and clinics (c) Libraries (d) Parks SECTION 4. Until they are included in the comprehensive fee schedule, the following Regu- latory Wayfinding Sign and plate fees shall apply: a. Application fee: $50.00 b. Regulatory Wayfinding Sign fabrication fee: Successful bidder's contract price plus $100.00 c. Plate fabrication fee: Successful bidder's contract price plus $25.00 d. Maintenance fee (per plate per year; not prorated): 50.00 SECTION 5. The Town Manager, Town Engineer, and other town staff are hereby authorized to take all other actions necessary to carry out this resolution. PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 7`" day of September, 2010. Mayor Ed Honea ATTEST: Jocelyn C. Bronson, Town Clerk APPROVED AS TO FORM: Frank Cassidy, Town Attorney {00022054.DOC /} - 4 - 8/4/2010 9:45 AM ""~'=~ \ IYE ~~ ~~~ 11555 W. CIVIC CENTER DRIVE, MARANA, ARIZONA 85653 COUNCIL CHAMBERS, August 10, 2010, 6:00:00 PM To: Mayor and Council From: Erik Montague ,Finance Director Item D 4 Strategic Plan Focus Area: Commerce, Community Building, Heritage, Progress and Innovation, Recreation Subject: Presentation: Relating to Finance; preliminary financial results for fiscal year 2009- 2010 Discussion: Staff will present a summary of the preliminary financial results for fiscal year 2009-2010. Financial Impact: Presentation only. ATTACHMENTS: Name: Description: No Attachments Available Staff Recommendation: None. Presenation only. Commission Recommendation - if applicable: None. Presentation only. Type: Suggested Motion: None: Presentation only. ~f ~~~~~~ 11555 W. CIVIC CENTER DRIVE, MARANA, ARIZONA 85653 COUNCIL CHAMBERS, August 10, 2010, 6:00:00 PM To: Mayor and Council Item D 5 From: Suzanne Machain ,Human Resources Director Strategic Plan Focus Area: Progress and Innovation Strategic Plan Focus Area -Additional Information: Strategic Plan Action Strategy: Survey and monitor best-practices in both the public and private sector; ongoing identification, evaluation and recommendation of tools, processes and programs that enhance citizen communication and involvement and promote the transparency of government in decision-making. Subject: Presentation: Relating to Personnel; update by staff relating to a professional services agreement with Waters-Oldani Executive Recruitment consulting firm to perform executive search services for the positions of Chief of Police and Assistant Town Manager Discussion: The town will commence a recruitment process to identify its next Chief of Police and Assistant Town Manager. It is highly recommended that the town utilize an executive search firm to assist with proactively attracting and screening candidates for these two high level positions. Search firms are used as a "best practice," by municipal governments to clearly define and create a broad consensus statement about highly desired candidate attributes, to increase the size of candidate pools, and to assist with candidate screening. Town staff identified a number of eligible firms through cooperative purchasing agreements and has selected the firm of Waters-Oldani Executive Recruitment, which is a division of the Waters Consulting Group. The Waters Consulting Group was established in 1976 and has extensive experience recruiting specifically for these two types of positions. The recommendation is based both on cost considerations, the firm's experience with these types of recruitments and the guarantee that accompanies the firm's work on the placement. The stages of the recruitment will include the development of a candidate profile, advertisement, marketing strategy, search strategy and identification of quality candidates, preliminary screening and initial interviewing, background, academic and reference checks, and onsite assistance with finalist interviews. The recruitment process will involve several key stakeholders at different stages of the process including members of the mayor and council, department employees (plus the Marana Police Officers Association in the case of the Chief of Police), executive town staff, and members of the community. The professional service fees offered by Waters-Oldani are very competitive and they've committed to reducing costs where possible throughout the process. Additionally, contracting to perform executive search services for two positions has created an opportunity for further reduced costs. Professional service fees for the Chief of Police process will be $15,500 and discounted to $12,500 for the Assistant Town Manager. Project related expenses are additional and include, but are not limited to consultant travel, printing, advertising,. and long distance telephone charges. These fees are estimated to be and will not to exceed $5,500 for each search process. It is expected that the search process will take three to four months. Financial Impact: Executive search recruitment services were anticipated as part of the FY 2011 budget at $10,000. Additional funding to support this effort will be achieved through other operational savings. ATTACHMENTS: Name: Description: Type: No Attachments Available Staff Recommendation: Informational only. Suggested Motion: