HomeMy WebLinkAboutOrdinance 2010.19 Authorizing the Mayor to execute the Marana Regional Landfill Development Agreementj F. ANN RODRIGUEZ, RECORDER DOCKET: 13931
RECORDED BY: K
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TOWN OF MARANA
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ORDIN 08:26
TOWN CLERK `9RIZ01`ZQ'
11555 W CIVIC CENTER DR MAIL
MARANA AZ 85653 AMOUNT PAID $ 8.00
MARANA ORDINANCE N0.2010.19
RELATING TO DEVELOPMENT; APPROVING AND AUTHORIZING THE MAYOR TO
EXECUTE THE MARANA REGIONAL LANDFILL DEVELOPMENT AGREEMENT
WHEREAS the Marana Town Council finds that the Marana Regional Landfill
Development Agreement is consistent with the Marana General Plan, applicable specific plans,
and relevant Town policies; and
WHEREAS the Marana Town Council finds that the Marana Regional Landfill
Development Agreement is in the best interest of the Town and its citizens.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE
TOWN OF MARANA, ARIZONA, AS FOLLOWS:
SECTION 1. The Marana Regional Landfill .Development Agreement is hereby approved
in the form attached to and incorporated by this reference in this ordinance as Exhibit A.
SECTION 2. The Mayor is hereby authorized and directed to execute the Marana
Regional Landfill Development Agreement for and on behalf of the Town of Marana.
SECTION 3. The various Town officers and employees are authorized and directed to
perform all acts necessary or desirable to give effect to this ordinance.
PASSED AND ADOPTED BY THE MAYOR AND COUN L OF THE TOWN OF
MARANA, ARIZONA, this 3`~ day of November, 2010.
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ATTEST:
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APPROVED AS TO FORM:
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EXHIBIT A, THE MA]EZANA REGIONAL LANDFILL
DEVELOPMENT AGREEMENT, WAS RECORDED AT
DOCKET ~ 3 q ~ 1 PAGE 5
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r,___ F ANN RODRIGUEZ, RECORDER DOCKET: 13931
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TOWN OF MARANA ~`~~ ~",'`~' AG 08:26
TOWN CLERK 'gRIZO~p'
11555 W CIVIC CENTER DR MAIL
MARANA AZ 85653 AMOUNT PAID $ 17.00
MARANA REGIONAL LANDFILL DEVELOPMENT AGREEMENT
TOWN OF MARANA, ARIZONA
THIS DEVELOPMENT AGREEMENT ("Agreement") is entered into this 3Rd day of Niyeu~~DtR ,
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 "Pr pertX."
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 Norcwbcrt 3 , 2010 by
Ordinance Number ~ 010 • ~ ~ (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. I_ncorporation of Recitals and Exhibits. The forgoing recitals and all exhibits attached hereto
are incorporated by this reference as though fully set forth herein.
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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) "ADEO" 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.
11055298.21
~~
(b) "Base Index" means, for the CPI adjustment to the Vehicle Flat Fee under Section 21,
(i) 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 (ii) for each subsequent Review Date, the CPI for the calendar
month May of the calendar year of the prior Review Date.
(c) "Closing DaX" means the last day on which the Landfill is open to receive Waste.
(d) "Commercially Reasonable Efforts" means, when describing the required standard of a
party's expected conduct, the efforts that a reasonable and prudent person or entity in such party's
position and of substantially equivalent economic means as such party would undertake in such course of
conduct.
(e) "CPP' 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.
(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
issuance is contingent upon completion of construction of any building or other improvements included in
the Landfill
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(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.
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(j) "Net Tonnage" 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, variance or plan approvals or amendments) 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.
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(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) ~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 47, shall, at Developer's option, terminate this Agreement. If
11055298.21
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 35 due to breach of this
Agreement and failure to remedy.
(e) Reversion. If the Opening Day does not occur by the eighth (8`") 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.
5. Designation of Truck Route; No Rail Spur or Hauling. Developer shall propose a single
designated commercial truck route 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 commercial haulers to use such designated truck route. Notwithstanding the
foregoing, commercial waste collection trucks that service customers in the general vicinity of the
Landfill and deposit collected Waste at the Landfill shall not be required to follow such designated truck
route if doing so would interfere with such collection trucks' service routes in such general vicinity.
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. Out of State Waste. In any calendar year during the Operation Life, Waste deposited at the
Landfill that is generated from sources outside the State of Arizona shall not exceed 10% of total Net
Tonnage for such calendar year, with such limitation being prorated for any partial calendar year in the
Operation Life.
7. 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.
8. 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 e
business day after the successful final conclusion of such appeal in favor of Developer.
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9. 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.
10. 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. Grade
11055298.21 4
changes on the Property that are outside of the Landfill footprint (including, without limitation, screening
berms, flood protection structures, stormwater basins, building pads and temporary stockpiles) shall be
subject to the foregoing elevation limit (i.e., not to exceed 165 feet above the baseline elevation grade
reference of 1,980 feet existing on the south property line of the Property), but elevations on the Property
that are 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 above-noted 135 foot average height restriction.
11. 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.
12. 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, including in and around the Silverbell West
subdivision to the north of the State land adjacent to the Property. 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, along
Airline Road and Lambert Lane adjacent to the residential property known as Happy Acres, and in and
around the above-noted Silverbell West subdivision, all 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.
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13. 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-
11055298.21
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 13(al or 13~b) above,
Town determines that Developer is not in compliance with any of its obligations under this Agreement,
Town shall notify Developer in writing of such non-compliance, whereupon Developer shall have thirty
(30) days to correct such non-compliance before Town may find Developer to be in default under this
Agreement; provided, however, that if Developer reasonably requires more than thirty (30) days to correct
such non-compliance, Developer shall have such additional time as is reasonably necessary to correct
such non-compliance before Town may find Developer to be in default under this Agreement. Upon
Developer completing any such corrective work, Developer shall permit Town representatives to inspect
such work to confurn 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.
14. Operation Life Reuorting: 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 (5~') 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 36 of this
11055298.21
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.
15. Closure and Post Closure Financial Assurances. Developer shall provide fmancial assurances
for costs of closure and post closure care, as required by Applicable Laws.
16. 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.
17. Dedication of East Branch of Brawley 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 C 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
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.
18. 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 maj eure event"), and the party affected by the force maj eure
event gives notice to the other party after the occurrence of such event. In the event that any party to the
uossz9s.u 7
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.
19. Host Fees.
(a) Developer shall pay the Town a "Host Fee" as set forth in this Section 19. The Host Fee
shall be paid for each calendar quarter during the Operation Life based on total Net Tonnage deposited at
the Landfill in such calendar quarter. The Host Fee shall be equal to four percent (4%) of the average
charge per Ton of Net Tonnage that third-party customers of the Landfill pay to deposit Waste at the
Landfill during the calendar quarter in question multiplied by the aggregate Net Tonnage deposited at the.
Landfill during such calendar quarter; provided, however, that in no event shall the Host Fee be calculated
at less than $1.20 per Ton of such Net Tonnage. The Host Fee shall only be payable in respect of
amounts actually collected by Developer and shall only apply to amounts charged for the deposit of
eligible Waste at the Landfill. Without limiting the generality of the foregoing, no Host Fee shall be
payable in respect of amounts collected by Developer from customers of the Landfill as fees, fines,
damages, penalties or other charges for such customers' failure to comply with Applicable Laws or
Landfill rules or to compensate or reimburse Developer for having to separate mixed Waste loads or
undertake other work or liability resulting from such customers' delivery to the Landfill of Waste that is
ineligible for deposit at the Landfill.
(b) Host Fee payments shall be made to the Town General Fund and transmitted to Town at
the address set forth in Section 36. In the event Developer fails to make payment within ten (10) business
days after receipt of written notice from Town that a specific payment was not timely made, Developer
shall, in addition to the required payment, pay a late fee often percent (10%) of the total amount due for
said quarter.
(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 19(al 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 22 or the voucher program referred to in Section 23. 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 a
Developer with the State of Arizona or any other applicable governmental body with respect to volumes
and types of Waste deposited at the Landfill. p
(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
11055298.21
connection with Town's review and audit rights referred to in Section 19(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 19(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 maybe 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 19 shall bear interest at the rate of nine percent (9%) per annum until paid.
20. 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 D
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 20 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
,,e
sole account. Waste delivered during these free public days shall be excluded from the calculation of the ~ )
Host Fees under Section 19. Developer shall be permitted to impose reasonable restrictions on such free ~4
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
M
depicted on Exhibit D, 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.
i iossz9s.zi 9
21. Customer Vehicle Flat Fees. Non-commercial landfill customers 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 - Bn / BI]
Where: RDCPI =CPI existing on the Review Date; and
BI =Base Index
E.g. If the Vehicle Flat Fee in effect for cars prior to adjustment is $10.00, the most recently
reported CPI on the Review Date is 228.2 and the Base Index is 223.9, then the positive
percentage change between the Base Index and the CPI on the. Review Date, i.e., 1 +
[(228.2-223.9)/223.9], is 1.0192%. The adjustment to the Host Fee is thus calculated as
follows:
$10.00 x 1.0912% _ $10.19205, rounded to $10.19.
Notwithstanding the foregoing, in no event shall any CPI-based increase in the Vehicle Flat Fee cause the
Vehicle Flat Fee to exceed the average per-Ton eligible Waste disposal cost charged to non-commercial
customers using solid waste landfills or transfer stations in the greater Tucson, Arizona metropolitan area.
To the extent such limitation applies to any CPI-based increase in the Vehicle Flat Fee, Developer may
not in any subsequent year's CPI-based adjustment to the Vehicle Flat Fee claim as part of such
adjustment the amount of any prior year's increase in the Vehicle Flat Fee that would have occurred but
for the application of this paragraph. In no event shall any CPI-based adjustment to the Vehicle Flat Fee
cause the Vehicle Flat Fee to decrease from one year to the next. In the event the CPI for a Review Date
reflects a negative percentage change when compared to the applicable Base Index, the Vehicle Flat Fee
for the then commencing year shall equal the Vehicle Flat Fee payable during the immediately preceding
year.
22. 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 .I
but within the geographic area depicted on Exhibit D 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
iiosszvs.zi 10
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 22.
23. 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
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 19.
24. 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
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 five years after Developer's sampling of its own test
wells on the Property indicate no further ground water contamination from the Landfill.
25. 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.
iioss29s.2i 11
26. 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.
27. 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.
28. 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
11055298.21 12
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.
29. Brawler Bridge Improvement. Developer, at its sole cost and expense, shall provide for such
repairs and upgrading of the East Branch of the Brawler 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.
30. 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.
31. Operating Hours of Landfill. Commencing on the Opening Day and throughout the Operation
Life, Developer shall cause the Landfill to be open to receive eligible Waste from commercial and non-
commercial customers during normal business hours at least six (6) days per week, including at least four
(4) hours on each Saturday, excluding recognized holidays.
32. 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 32.
33. Conflict Of Interest. This Agreement is subject to the provisions of A.R.S. § 38-511.
34. 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.
iioss29s.u 13
35. 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.
36. 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: 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.
37. Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of Arizona.
38. Conflict. In the event of any conflict between the terms of this Agreement and the Specific Plan,
the terms of this Agreement shall govern.
39. 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 36 to the
iiossz9s.zi 14
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.
40. 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.
41. No A~ency 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.
42. 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.
43. HeadinES. 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.
44. 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.
45. 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.
46. 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.
47. 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. '~
48. 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. l;
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
~ iossz9s.zi 15
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.
49. 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.
50. 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]
iiossz9s.zl 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: ~ eGt
Title: (~(~~/
Attest:
arana T n 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
T
STATE OF ARIZONA )
ss.
County of P; rr ~ )
This agreement was acknowledged before me this ~ day of '~yVer~~,e.~ , 2010, by
E cJ~ ~'~'v+~~e.v. ,the Me,.y cis of the Town of Marana, a municipal
corporation, on behalf of the Town of Marana.
~~.
/ CFR~;iAL SEAL
TIMOTHY A. MATTIX
NOTARY PUBLIC
PIMA COUNTY, ARIZONA ~ r~ ~ Q
MY COMMISSION EXPIRES V `
_ AI ' 'T_`~~ ~~' ~ Notary Public
~.r
My Commission Expires:
iiossz9s.zi 17
DKL HOLDINGS, INC., a Delaware
STATE OF ARIZONA )
ss.
County of ~;.v.r,~, )
corporation
By:
Name:
Title: '' P~ p`-
This agreement was acknowledged before me this ~{ day of 'VC~sa_ ~•,~~~ , 2010, by Larry
D. Henk, the President of DKL Holdings, Inc., a Delaware corporation, on behalf of DKL Holdings, Inc.
OFF ~~,~AL SEAL
TIMOTHY A. MATTIX
NOTARY PUBLIC
PIMA COUNTY, ARIZONA
MY COMMISSION EXPIRES
My COmmiSSl eS: AUGUST 27, 2013
~~*~~,sr a.~t , ~~ ~3
STATE OF ARIZONA )
ss.
County of ~tn,.c. )
Notary Public
H. KAI FAMILY NG1, L.L.C., an Arizona
limited liability company
B ~,_ ~~~ ,
Name: ~P,~~12r-1' ~0.~
Title: I~dna0.q~r'
This agreement was acknowledged before me this ~ day of ~c,ye.rY.~e,r , 2010, by
Herbert Kai, the Manager of H. Kai Family NGl, L.L.C., an Arizona limited liability company, on behalf
of H. Kai Family NG1, L.L.C.
Ort~i;I~~.~SEAL y~JlMh~i ~~.,A~/~~~
TIMOTHY A. MATTIX ~/ y ~
NOTARY PUBLIC
PIMA COUNTY, ARIZONA Notary Public
• MY COMMISSION EXPIRES
AUGUST 27, 2013
My Commission xpires: `"
11055298.21 1 g
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11055298.21
EXHIBIT B
CPI DATABASE PRINT-OUT
Consumer Pnce Index -All Urban Consumers
Original Data Value
Series Id: CUURA400SAO,CUUSA400SA0
Not Seasonally Adjusted
Area: West -Size Class A
Item: All items
Base Period: 1982-84=100
,Years: 2000 to 2010
Year Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Annual HALF? HALF2
2000 172.3 173.4 174.9 175.2 175.5 175.8 176.8 177.6 178.4 179.0 178.8 179.0 176.4 174.5 178.3
2001 180.1 181.3 182.0 182.5 183.4 184.4 184.2 184.1 184.7 184.6 184.3 183.5 183.3 182.3 184.2
2002 184.4 185.4 186.2 187.2 187.5 187.2 187.4 187.9 188.2 188.4 188.4 188.0 187.2 186.3 188.1
2003 189.2 190.9 192.1 191.7 191.2 190.9 190.9 191.7 192.3 191.9 191.0 190.6 191.2 191.0 191.4
2004 191.7 193.2 194.5 194.6 195.9 195.9 195.4 195.5 196.4 197.5 197.6 196.5 195.4 194:3 196.5
2005 196.7 198.3 199.8 201.3 201.5 200.5 201.3 202.4 204.5 205.4 204.2 203.0 201.6 199.7 203.5
2006 204.7 205.7 206.8 208.6 210.3 209.5 210.0 210.7 211.3 210.5 209.7 209.6 209.0 207.6 210.3
2007 211.102 212.549 214.393 215.540 216.640 215.901 215.855 215.825 216.429 217.314 218.196 218.020 215.647 214.354 216.940
2008 219.036 219.799 221.997 222.689 224.704 226.767 227.562 226.541 225.910 224.967 220.925 218.698 223.300 222.499 224.101
2009 219.806 220.955 221.124 221.790 222.659 223.908 223.498 224.072 224.412 224.372 223.489 223.058 222.762 221.707 223.817
2010 223.852. 223.989 224.636 225.040 225.571 225.291 224.730
11055298.21
EXHIBIT C
BRAWLEY WASH DESCRIPTION
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11055298.21
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EXHIBIT E
SAMPLING WATER WELLS
LEGEND
Site Boundary
,~ Township, Range 8~ Section Lines (12S10E11) NORTH o' i5oo sooo~
Jurisdiction Boundary ~ ` ~
® Sampling Water Wells FILE N,4ME: DKL-01_private_gw_wells mxd
SOURCE: Pima County DOT GIS, 2010
Reg. No. Owner Name Well Type
598424 DONALD MELOCHE EXEMPT
506352 EARLEY,W W EXEMPT
611183 HICE, CHARLES & MARY, EXEMPT
805125 MANCINI, VITTORIO,E EXEMPT
618391 KAI JR,H NON-EXEMPT
11055298.21