HomeMy WebLinkAboutResolution 2012-059 arboles viejos project wastewater treatmentMARANA RESOLUTION NO. 2012-059
RELATING TO UTILITIES; AUTHORIZING THE MANAGER TO EXECUTE AN
AGREEMENT RELATING TO FUTURE CAPACITY AT THE MARANA WASTEWATER
RECLAMATION FACILITY TO PROVIDE WASTEWATER TREATMENT FOR THE
ARBOLES VIEJOS DEVELOPMENT PROJECT
WHEREAS the developer of the Arboles Viejos development project entered into a sewer
service agreement with Pima County in 2007 for the purpose of providing wastewater treatment for
the project at the Marana Wastewater Reclamation Facility, which was then owned and operated by
Pima County; and
WHEREAS the developer of the Arboles Viejos development project is negotiating with
Pima County for an extension of the 2007 sewer service agreement; and
WHEREAS Arizona Revised Statutes Section (A.R.S. §) 9-514.01, paragraph N, authorizes
Pima County to serve development projects located in unincorporated Pima County at the Marana
Wastewater Reclamation Facility subject to availability of treatment capacity and upon Pima
County's payment of actual capital costs associated with the creation of the sewage treatment
capacity needed to serve the project and Pima County's payment of the Town's actual operation and
maintenance costs attributable to treatment of the sewage originating from the project; and
WHEREAS the developer of the Arboles Viejos development project wishes to enter into an
agreement with the Town of Marana to ensure that future capacity will be available at the Marana
Wastewater Reclamation Facility to serve the Arboles Viejos development project if and when Pima
County exercises its rights under A.R.S. § 9-514.01, paragraph N; and
WHEREAS the Mayor and Council find that the best interest of the Town are served by
entering into such an agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE
TOWN OF MARANA, ARIZONA, that the Town Manager is hereby authorized to sign an
agreement with the developer of the Arboles Viejos development project relating to future capacity
at the Marana Wastewater Reclamation Facility to provide wastewater treatment for the Arboles
Viejos development project, subject to Pima County's compliance with the requirements of A.R.S.
§ 9-514 A 1, paragraph N, and containing such other reasonable terms and conditions as are necessary
or prudent to address Arizona Department of Environmental Quality rules, regulations, and
requirements relating to wastewater treatment capacity assurance, and such other terms and
conditions as may be acceptable to the Town Manager, the Town's Utilities Director, the Town
Attorney, and the developer of the Arboles Viejos development project.
Resolution No. 2012-059 7/16/2012
PASSED AND ADOPTED BY THE MAYOR AND COUNCIL QF THE TOWN OF
MARANA, ARIZONA, this 17 day of July, 2012. /„ �
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Ed Honea, Mayor
ATTEST: APPROV AS O FORM:
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elyn C. onson, Town Clerk Fr nk C� dy, �"own A e
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Resolution No.2012-059 7/16/2012
� F. ANN RODRIGUEZ, RECORDER
Recorded By: LD
DEPUTY RECORDER
41
SMAItA
TOWN OF MARANA
TOWN CLERK
11555 W CIVIC CENTER DR
MARANA AZ 85653
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_ _ _. _- _ _ _ _
AGREEMENT RELATING TO EXISTING AND FUTURE
CAPACITY AT THE N][ARANA WASTEWATER RECLAMATION
FACILITY
TOWN OF 1VIARANA, ARIZONA
a�
This Agreement ("Agreement") is entered into this `Lr�d day of , 2012, by and
between the Town of Marana, an Arizona municipal corporation ("Town") and First
American Title Insurance Company, a California corporation, as Trustee under Trust
Na 8657 only, and not otherwise ("Trustee"), acting pursuant to the directions of
Cortessa, LLC, an Arizona limited liability company, its Trust Beneficiary ("Applicant").
RECITALS
A. Applicant is the owner of the property commonly referred to as Arboles Viejos,
Lots 1-1857, Blocks 1-5 and Common Areas Al-A112, Bl, B2 and Cl, a development
in Pima County, Arizona ("Development").
B. In 2007, Applicant entered into an agreement with Pima County ("County") for
the construction of a permanent sewer collection and transmission system so that the
County would provide sewer utility service to the Development. The Marana Wastewater
Reclamation Facility ("MWRF") is the intended location for treatment of wastewater
flows collected from the Development.
C. Applicant's 2007 agreement with the County will terminate on August 3, 2012,
and Applicant is negotiating with the County for a five-year extension or substitute
agreement (the "2012 Applicant/County Agreement").
D. The Development as fully built out is currently anticipated to include 1,857 single
family residences, which will generate wastewater flows of approximately 427,110
gallons per day (gpd) based on the County's calculation method and approximately
343,545 gpd based on the calculation method used by the Arizona Deparhnent of
Environmental Quality (ADEQ).
E. Applicant intends to construct a sewerage system to serve the Development, and
then transfer' title of the system to the County so that the County can own, operate,
rnaintain and service the system.
F. Until January 2, 2012, the County owned and operated the MWRF.
G. On January 3, 2012, the Town took over the ownership and operation of the
MWRF pursuant to A.R.S. § 9-514.OL
�
H. The ownership and operation of the MWRF and the constitutionality of A.R.S.
§ 9-514.01 are the subject of litigation between the Town and the County, including
pending Maricopa County Superior Court Case No. CV2011-099966 and the recent
I. Based on the pending litigation, the County has not transferred and ADEQ has not
issued to the Town the permits associated with the MWRF, and the Town is operating the
MWRF pursuant to a consent order issued by ADEQ.
J. Notwithstanding the Town's ownership and operation of the MWRF and the
pending litigation between the Town and the County, the Development is currently and
for the foreseeable future is anticipated to remain in the County's sewer service area.
K. This Agreement applies in the event the County does not reacquire the MWRF as
a result of the litigation and the County exercises its rights pursuant to A.R.S.
§ 9-514.01(l� to obtain treatment capacity in the MWRF so the County can provide
sewer treatment service for the Development.
L. The MWRF has a permitted capacity of 700,000 gpd, and treats current actual
sewage flows of approximately 280,000 gpd.
M. By the time the Town took over ownership and operation of the MWRF on
January 3, 2012, the Town estimates that County had committed approximately 1.2
million gpd of capacity to developments intended to be treated at the MWRF, including
the Development, for which sewer facility construction authorizations had been issued by
or under the authority of ADEQ.
N. The sewer facility construction authorizations for the Development were issued in
2007 and 2008 with a two-year duration, and have now expired.
O. Under ADEQ rules, the Town may not approve or sign off on construction
authorizations for sewer facilities that commit the MWRF to accept sewage flows unless
and until the Town has submitted an Aquifer Protection Permit application to ADEQ for
a capacity that exceeds all the commitments as demonstrated on the Capacity Assurance
Commitment List submitted to ADEQ for the MWRF.
Now, therefare, in consideration of the foregoing, the parties hereby agree as follows:
AGREEMENT
1. Capacitv Assurance. Town represents and warrants to Applicant that it shall
diligently pursue an Aquifer Protection Permit for a capacity that exceeds all
commitments demonstrated on the Capacity Assurance Commitment List as accepted by
ADEQ for the MWRF, including the capacity necessary to serve the Development, so
that, in the event the County exercises its rights pursuant to A.R.S. § 9-514.01(N) and
requests capacity at the MWRF to serve connections in the Development, Town will be
in a position either to: (i) make existing capacity at the MWRF available in an amount
sufficient to serve the Development; or (ii) if capacity is not available, make capacity at
the MWRF available in an amount sufficient to serve the Development in a manner that
will allow the timely provision of sewer utility service to the Development. The Town's
obligations under this section are contingent on the County paying the Town's actual
�
� F. ANN RODRIGUEZ, RECORDER
Recorded By: LD
DEPUTY RECORDER
41
SMAItA
TOWN OF MARANA
TOWN CLERK
11555 W CIVIC CENTER DR
MARANA AZ 85653
.
� F PI . IIIIII IIIII (IIII IIIII (IIII IIII� IIIII (IIII I'lll II�II IIIII (IIII IIII IIII
�,�,���0� SEQUENCE :
W il�z NO. PAGES:
' 'y AG
N �ZO� b
MAIL
AMOUNT PAID:
20122220231
7
08/09/2012
13:50
$12.00
AGREEMENT RELATING TO EXISTING AND FUTURE
CAPACITY AT THE MARANA WASTEWATER RECLAMATIQN
FACILITY
TOWN OF MARANA, ARIZONA
�5�
This Agreement ("Agreement") is entered into this �►�� day of , 2012, by and
between the Town of Marana, an Arizona municipal corporation ("Town") and First
American Title Insurance Company, a California corporation, as Trustee under Trust
No. 8657 only, and not otherwise ("Trustee"), acting pursuant to the directions of
Cortessa, LLC, an Arizona limited liability company, its Trust Beneficiary ("Applicant").
RECITALS
A. Applicant is the owner of the property commonly referred to as Arboles Viejos,
Lots 1-1857, Blocics 1-5 and Common Areas Al-A112, B1, B2 and C1, a development
in Pima County, Arizona ("Development").
B. In 2007, Applicant entered into an agreement with Pima County ("County") for
the construction of a permanent sewer collection and transmission system so that the
County would provide sewer utility service to the Development. The Marana Wastewater
Reclamation Facility ("MWRF") is the intended location for treatment of wastewater
flows collected from the Development.
C. Applicant's 2007 agreement with the County will terminate on August 3, 2012,
and Applicant is negotiating with the County for a five-year extension or substitute
agreement (the "2012 Applicant/County Agreement").
D. The Development as fully built out is currently anticipated to include 1,857 single
family residences, which will generate wastewater flows of approximately 427,110
gallons per day (gpd) based on the County's calculation method and approximately
343,545 gpd based on the calculation method used by the Arizona Department of
Environmental Quality (ADEQ).
E. Applicant intends to construct a sewerage system to serve the Development, and
then transfer' title of the system to the County so that the County can own, operate, ;
rnaintain and service the system.
F. Until January 2, 2012, the County owned and operated the MWRF.
G. On January 3, 2012, the Town took over the ownership and operation of the
MWRF pursuant to A.R.S. § 9-514AL
H. The ownership and operation of the MWRF and the constitutionality of A.R.S.
§ 9-514.01 are the subject of litigation between the Town and the County, including
pending Maricopa County Superior Court Case No. CV2011-099966 and the recent
decision by the Arizona Court of App�als in Case No.1 �A-CV 11-03�1. -
I. Based on the pending litigation, the County has not transferred and ADEQ has not
issued to the Town the permits associated with the MWRF, and the Town is operating the
MWRF pursuant to a consent order issued by ADEQ.
J. Notwithstanding the Town's ownership and operation of the MWRF and the
pending litigation between the Town and the County, the Development is currently and
for the foreseeable future is anticipated to remain in the County's sewer service area.
K. This Agreement applies in the event the County does not reacquire the MWRF as
a result of the litigation and the County exercises its rights pursuant to A.R.S.
§ 9-514.01(1� to obtain treatment capacity in the MWRF so the County can provide
sewer treatment service for the Development.
L. The MWRF has a permitted capacity of 700,000 gpd, and treats current actual
sewage flows of approximately 280,000 gpd.
M. By the time the Town took over ownership and operation of the MWRF on
January 3, 2012, the Town estimates that County had committed approximately 1.2
million gpd of capaciTy to developments intended to be treated at the MWRF, including
the Development, for which sewer facility construction authorizations had been issued by
or under the authority of ADEQ.
N. The sewer facility construction authorizations for the Development were issued in
2007 and 2008 with a two-year duration, and have now expired.
O. Under ADEQ rules, the Town may not approve or sign off on construction
authorizations far sewer facilities that commit the MWRF to accept sewage flows unless
and until the Town has submitted an Aquifer Protection Permit application to ADEQ for
a capacity that exceeds all the commitments as demonstrated on the Capacity Assurance
Commitment List submitted to ADEQ for the MWRF.
Now, therefore, in consideration of the foregoing, the parties hereby agree as follows:
AGREEMENT
1. Capacitv Assurance. Town represents and warrants to Applicant that it shall
diligently pursue an Aquifer Protection Permit for a capacity that exceeds all
commitments demonstrated on the Capacity Assurance Commitment List as accepted by
ADEQ for the MWRF, including the capacity necessary to serve the Development, so
that, in the event the County exercises its rights pursuant to A.R.S. § 9-514.01(N) and
requests capacity at the MWRF to serve connections in the Development, Town will be
in a position either to: (i) make existing capacity at the MWRF available in an amount
sufficient to serve the Development; or (ii) if capacity is not available, make capacity at
the MWRF available in an amount sufficient to serve the Development in a manner that
will allow the timely provision of sewer utility service to the Development. The Town's
obligations under this section are contingent on the County paying the Town's actual
�
,.
capital costs associated with the creation of new sewage treatment capacity in accordance
with A.R.S. § 9-514.01(N) and paragraph 3' below.
2. Convevance and Treatment Infrastructure Phasing Reports. Applicant shall
provide semi-annual reports to the Town, not later than January 1 and July 1 of each year,
a Conveyance and Treatment infrastructure Phasing Report, prepared by a registered civil
engineer, detailing the engineering and permitting schedule for the onsite and offsite
sewer infrastructure. The report shall describe the status of all of the following:
a. All required local, state, and federal cultural and environmental
regulatory clearances and permits needed for the installation of the sewer
conveyance facilities for the Development
b. The procurement of all easements and rights-of-way needed for the
installation of the sewer conveyance facilities for the Development.
c. The phases and timing of all onsite lot development.
3. Wastewater Treatment Capacitv Development Impact Fee Payment.
Concurrently with each individual home or building's connection to the sewer
conveyance system tributary to the MWRF, the County (either directly or by demand to
the Applicant or others) shall pay the Town's then-adopted sewer development impact
fee attributable to wastewater treatment (as uniformly assessed throughout the MWRF
service area) associated with the new connection, and shall make arrangements
acceptable to the Town to assure periodic payment to the Town of actual MWRF
operation and maintenance costs attributable to the new connection.
4. Entire Agreement. This Agreement is the final integration of the agreement
between the Parties with respect to the matters covered by it and supersedes any prior
understanding or agreements, oral or written, with respect thereto.
5. Modification. Waiver and Severabilitv. This Agreement may not be modified
or supplemented except by written instrument signed by the Parties. No waiver of any
default or breach hereof shall be deemed a waiver of any other default or breach thereof.
If any part of this Agreement is determined by an arbitrator(s) to be void and/or
unenforceable, such part shall be deemed severed from this Agreement which shall
otherwise remain in full force and effect.
6. Assignment. Except as expressly provided herein, neither Pa.rty may assign its
rights nor delegate its duties under this Agreement, or any part thereof without the prior
written consent of the other Party, except that any Party may make such assignment,
without consent of the other Party, to an affiliate of the assigning Party or in connection
with the sale of all or substantially all of the assets of such Pariy or any other change-of-
control transactions, including a stock sale, merger or consolidation. Any such
assignment or delegation made without such written consent shall be null and void. This
Agreement shall be binding on the Parties' respective successors and permitted assigns.
IN WITNESS WHEREOF, the parties have hereunto set their hands the day and year first
above written.
APPLICANT:
CORTESSA, L.L.C., an Arizona limited liability company
BY:
TITLE:
TRUSTEE:
FIRST AMERICAN TITLE INSURANCE COMPANY, a California corporation, as
Trustee under Trust No. 8657 and not personally
BY:
TITLE:
TOWN OF MARANA:
.�
ti
own Manager
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APPROVED AS TO FORM:
Utilities Director
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Date
IN WITNESS WHEREOF, the parties have hereunto set their hands the day and year first
above written:
APPLICANT:
CORTESSA, L.L.C., an Arizona limited liability company
BY: (_ l�l.
-
TITLE: ���'��--
TRUSTEE:
FIRST AMERICAN TITLE INSURANCE COMPANY, a California corporation, as
Trustee under Trust No. 8657 and not personally
BY:
TITLE: r0 t� /� ' ►�'
TOWN OF NIARANA:
Town Manager Date
APPROVED AS TO FORM:
Utilities Director Date
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STATE OF ARIZONA
County of Maricopa
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) ss.
)
On c.ra� .� 2012 , before me, the undersigned Notary Public, personally
appeared C.hr�s ���� , Manager, of CORTESSA LLC, an Arizona
limited liability company, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal. � � �
�_. �--=� �..
.,�,�,,,,,,,,,���, Notary Public
(Seal) i ,•: DONNA D. PARRISH
� j < Notary Publie,8tate otANzona
q � • Maricapa County
My Commissipn Explras
�., " ' February 01, 2013
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STATE OF ARIZONA
County of Maricopa
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) ss.
)
On �U q i � S�" 3, , 2012 , before me, the undersigned Notary Public, personally
appeared� �, a,r 1 n J.J-e YY� . IGrI o LL , Senior Trust Officer, of FIRST AMERICAN
TITLE INSURANCE COMPANY, a California corporation, as Trustee, under Trust Na.`
8657, and not personally, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
.
WITNESS my hand and official seal. .
��,,,�� Notary Public
(Seal) � N�AkGARtTA �11�!�,
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