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HomeMy WebLinkAboutResolution 2014-074 Tangerine Business Park Public Water Infrastructure AgreementMARANA RESOLUTION NO. 201.4-074 RELATING TO UTILITIES; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE THE TANGERINE BUSINESS PARK. PUBLIC WATER. INFRASTRUCTURE PARTICIPATION AGREEMENT AND THE MARANA TECHNOLOGY CAMPUS PUBLIC WATER INFRASTRUCTURE PARTICIPATION AND WATER SERVICE AGREEMENT FOR CONSTRUCTION OF PUBLIC WATER IMPROVEMENTS IN THE TANGERINE CORRIDOR ECONOMIC ACTIVITY CENTER WHEREAS the owner and developer of the Tangerine Business Park development project is required to construct certain water facilities to serve the Tangerine Business Park development; and WHEREAS the Town desires to up --size the water facilities and to construct a 16 -inch water main to serve other development surrounding Tangerine Business Park; and WHEREAS the owner of the Marana Technology Campus development has approached the Town, seeking water service for the Marana Technology Campus development and agreeing to participate in certain related costs; and WHEREAS the Commerce focus area of the Town of Marana Strategic Plan II includes Initiative 6, promoting development of the Tangerine Corridor Activity Center as outlined in the Marana Economic R.oadmap; and WHEREAS the Tangerine Business Park and Marana Technology Campus development projects are located within the Tangerine Corridor Activity Center, and WHEREAS the Mayor and Council of the Town of Marana find that the best interests of the Town of Marana and its businesses and citizens are served by entering into the Tangerine Business Park Public Water Infrastructure Participation Agreement and the Marana Technology Campus Public Water Infrastructure Participation and Water Service Agreement, NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA., that the Tangerine Business Park Public Water Infrastructure Participation Agreement attached to this resolution as Exhibit 1 and the Marana Technology Campus Public Water Infrastructure Participation and Water Service Agreement attached to this resolution as Exhibit 2 are hereby approved, and the Mayor is authorized to execute them for and on behalf of the Town. of Marana after all of the following have occurred: 1. The Tangerine Business Park Public Water Infrastructure Participation Agreement attached as Exhibit 1 to this resolution and the Deed of Trust and Assignment of Rents attached as Exhibit A to the Tangerine Business Park Public Water Infrastructure Participation Agreement have been tendered to the Town Clerk, each Resolution No. 2014 -074 - I - $ 1512014 3:02 PM FJC bearin the ori notarized si of the owner of Blocks I throu 4 and 6 throu 10 of Tan Business Park subdivision. 2. The Town Clerk has received from Western Alliance Bank ( the beneficiar of a deed of trust in the principal amount of $1,755,000 secured b Blocks I throu 4 and 6 throu 10 of Tan Business Park subdivision documentation satisfactor to the Town Attorne allowin indebtedness secured b the Deed of Trust and Assi of Rents attached as Exhibit A to the Tan Business Park Public Water Infrastructure Participation A to be paid off and satisfied in the amount of $60,000 per Block sold of the remainin Blocks of Tan Business Park subdivision, so that the entire indebtedness to the Town is full satisfied no later than the sale of three remainin Blocks of Tan Business Park subdivision. The Town Mana is hereb authorized to si on behalf of the Town of Marana an necessar documentation from Western Alliance Bank that satisfies the re of this para 3. The Marana Technolo Campus Public Water Infrastructure Participation and Water Service A attached as Exhibit 2 to this resolution has been tendered to the Town Clerk, bearin the ori notarized si of the owner of the Marana Technolo Campus. 4. The Town Finance Department has received $123,750 from the owner of the Marana Technolo Campus as re b para 4 of the Marana Technolo Campus Public Water Infrastructure Participation and Water Service A IT IS FURTHER RESOLVED that the Ma authorization to si the Tan Business Park Public Water Infrastructure Participation A and the Marana Technolo Campus Public Water Infrastructure Participation and Water Service A on behalf of the Town is automaticall terminated if an re set forth in para I throu 4 above has not been satisfied b noon Mountain Standard Time on Frida Au 15, 2014. IT IS FURTHER RESOLVED that the Town Mana and staff are hereb directed and authorized to undertake all other and further tasks re or beneficial to carr out the terms, obli conditions and objectives of the Tan Business Park Public Water Infrastructure Participation A and the Marana Technolo Campus Public Water Infrastructure Participation and Water Service A PASSED AND ADOPTED b the Ma and Council of the Town of Marana, Arizona, this 5th da of Au 2014. ATTEST: V) w N A MAAA 7 AVIV 1 , 0�4 ocel Bronson, Town Clerk M a y or Honea �� I X#I"V Resolution No. 2014-074 m 2 w 8/512014 3:02 PM FJC PUBLIC WATER INFRASTRUC'T'URE PARTICIPATION AND WATER SERVICE AGREEMENT TOWN OF MARANA, ARIZONA (Marana Technology Campus) This Public Water infrastructure Participation and Water Service Agreement (this "Agreement ") is made and entered into by and between MARANA TECHNOLOGY CAMPUS, L.L.C., an Arizona limited liability company; NORTHWEST STORAGE, L.L.C., an Arizona limited liability company; and the TOWN OF MARANA, an Arizona municipal corporation (the "'Town""). MARANA TECHNOLOGY CAMPUS, L.L.C. and NORTHWEST STORAGE, L.L.C. are collectively referred to as the "Owners." The Owners and the Town are sometimes collectively referred to in this Agreement as the "Parties," either of which is sometimes referred to as a "Party." RECITALS A. The owners own approximately 23.9 acres of land located in Marana, located at 8037 and 8041 West Tangerine Road; identified as Pima County Assessor's parcel numbers 216-08 -0030, 216.08 -0070, and 216 - 08.0080; and legally described on Exhibit A attached to this Agreement (the "Marana Technology Campus "). B. The Owners need potable water service and 1,500 gallons per minute (gpm) maximum fire flow sufficient to serve anticipated future development of the Marana Technology Campus. C. The Town and the developer of the Tangerine Business Park subdivision, located about a quarter mile east of the Marana Technology Campus, have entered into a Public Water Infrastructure Participation Agreement (the " "Tangerine Business Park Agreement "} that facilitates the construction of a water reservoir and a new well, both of which are being sized with sufficient capacity to serve other surrounding development, including the Marana Technology Campus. The water reservoir and new well are being constructed on a 2.4 --acre parcel of land identified as Parcel "A" of the Tangerine Business Park subdivision plat, recorded in the office of the Recorder of Pima County, Arizona, at sequence number 20120410281. The water reservoir, new well, and Tangerine Business Park Parcel " "A" are collectively referred to in this Agreement as the "Tangerine Business Park water plant." D. This Agreement is intended to facilitate the Owners" fair -share participation in the cost of the new well addressed by the Tangerine Business Park Agreement, and to facilitate the construction of a 16-inch pipeline from the Tangerine Business Park water plant to the western boundary of the Marana Technology Campus. E. The Owners desire confirmation of their right to water service from the Town upon satisfaction of their obligations under this Agreement, and representations of any and all Townes required fees and charges associated with water service to the Marana Tecl - iology Campus and with satisfaction of the Owners' obligations under this Agreement. {00038483.DOCX / 71 7/30/20 14 9:26 AM FJC MARANA TECHNOLOGY CAMPUS PUBLIC WATER INFRASTRUCTURE PARTICIPATION AGREEMENT - 1 - Exhibit "A" AGREEMENT NOW, THEREFORE, based on the foregoing recitals, which are incorporated here as the intention of the Parties in entering Into this Agreement, the Parties agree as follows: 1. Town design and construction of reservoir and new well. The Town will design and construct a reservoir and a new well at the Tangerine Business Park water plant, sized to serve the Marana Technology Campus (X -Zone) and other development surrounding Tangerine Business Park (Y- Zone). The design and construction shall proceed and be completed as promptly as practicable, giving due consideration to the Town's compliance with public procurement requirements. The Town will do its best to complete construction by January 1, 2015. 2. Town design and construction of 16 -inch X --Zone water main. The Town will design and construct a 16 -inch X-,Zone water main from the Tangerine Business Park water plant to the eastern boundary of the Marana Technology Campus (the "Town - Constructed water Main "). The Town will design, but is not obligated to begin construction or give notice to proceed with construction of, the Town - Constructed water Main, until the issuance of a building permit for the construction of a habitable structure on the Marana Technology Campus property. The Town shall complete construction of the Town - Constructed Water Main on or before substantial completion of the construction of the first habitable structure on the Marana Technology Campus property. The design and construction of the Town - Constructed water Main shall comply with public procurement requirements. 3. owners' obligation to design and construct the water main on the Marana Technology Campus frontage. Before the Town provides potable water service and 1,504 gpm maximum fire flow to the Marana Technology Campus, the Owners shall design and construct all of the following: a. An approximately 970 linear foot 16-inch PVC X -,Zone water main along the Marana Technology Campus frontage, from the western terminus of the Town -- Constructed water Main to the western boundary of the Marana Technology Campus. b. A 16 -inch valve, box and cover. c. A tie -in to the Town - Constructed Water Main. d. A 2 --inch drain valve assembly at the western terminus of the water main referenced in subparagraph 3.a above, for future connections. 4. owners' obligation to pay certain new well costs. Upon the Owners' execution of this Agreement, the Owners shall pay the Town $123,750 for the Owners' fair -share contribution toward the design and construction cost of the new well at the Tangerine Business Park well and reservoir site. The Parties currently estimate that the total cost for design and construction of the new well at the Tangerine Business Park well and reservoir site will be $225,000. within 30 days after the Town's completion of the new well, the Town shall reimburse the Owners the difference (if any) between the Owners' $123,750 contribution and half of the total design and construction cost of the new oversized well. The new well consists of the following components: a. A 200 gpm production well b. A primary power service with transformer pad c. A shaded control rack with remote telemetry unit (RTU) 100038483.DOCX 71 7/30/2014 9:26 AM FJC MARANA TECHNOLOGY CAMPUS PUBLIC WATER INFRASTRUCTURE PARTICIPATION AGREEMENT -2- d. Provisions for backup power including generator connection plugs and transfer switch e. A new block site wall f. All site work and over - excavation and compaction improvements required to prepare the site for construction g. All construction per American water works Association standards h. All construction in conformance with Arizona Department of Environmental Quality requirements for potable water 5. owners' right'to water service. After the Town has completed construction and installation of the water facilities contemplated in paragraphs 1 and 2 above and upon the Owners' satisfaction of their obligations under paragraphs 3 and 4 above and subject to payment of all Town fees and charges set forth in paragraph 6 below, the Town shall provide water service to current and future development of the Marana Technology Campus. Nothing in this Agreement precludes the Town from requesting, additional water supply infrastructure as a condition to serve a future high - volume water user at the Marana Technology Campus. 6. Applicable Town fees and charges. The Town represents that, as of the effective date of this Agreement, the following are all and the only current fees and charges associated with water service to the Marana Technology Campus and associated with satisfaction of the Owners' obligations under this Agreement. Nothing in this paragraph shall in any way restrict the Town's authority to adopt or revise any of these fees or charges as provided by law and to apply them to the Marana Technology Campus. a. Right-of-way use permit fees (for the work referenced in paragraph 3 above that is located within the public right-of-way): (1) Base fee: $100 per submittal (2) Traffic control plan check fee: $50 per submittal (3) Construction plan check fee: 2% of cost of construction per submittal (4) Extension fee: $50 per extension (first extension is free) (5) Late fee: $1,500 plus double the permit fee (when permit is obtained after construction has already started) (6) Weekly inspection fee: greater of 2% of construction cost or $200 per week b. Utilities preliminary plat/ development plan review fees: (1) Base fee: $200 per submittal (2) Sheet fee: $75 per sheet (3) Additional submittals review fee (after the second submittal): $100 per submittal (4) Additional submittals sheet fee (after the second submittal): $37.50 per sheet c. Marana Water Form. A permit fees: (1) Base fee: $100 per submittal 100038483. DOCX / 7) 7/30/2014 9:26 AM FJC MARANA TECHNOLOGY CAMPUS PUBLIC WATER INFRASTRUC'I "URE PARTICIPATION AGREEMENT -3- (2) Construction cost fee: Greater of $1,000 or 2.5% of the construction cost (3) Violation fee: Double the permit fee per violation d. Utilities new service establishment fee: $90 per customer ($142.50 for same --day establishment) e. Utilities new service refundable deposit fee: From $130 per meter for 5 18" meters to $1,040 for 2" meters; higher for larger meters f. Utilities new service refundable deposit fee, hydrant meter: $1,300 per meter (typically used for water needed during onsite construction) g. Utilities miscellaneous backflow prevention and cross - connection permit fee: $80 per permit (applies to any backflow prevention and cross - connection - related permit not covered under another fee) h. New water meter fees: From $360 per meter for 5 I8" meters to $1,840 per meter for 2" meters; higher for larger meters i. water infrastructure development impact fee (North Marana benefit area): From $2,122 per meter for 5 18 ' meters to $16,979 per meter for 2" meters; higher for larger meters j. Water resource development impact fee: From $1,771 per meter for 5 I8 " meters to $14,170 per meter for 2" meters; higher for larger meters k. Monthly water meter base rate: From $16.18 per meter for 5 I8" and 3 14' meters to $49.69 per meter for 2" meters; higher for larger meters 1. water rate (commercial and industrial): $3.24 per 1,000 gallons m. Groundwater resource/ acquisition fee: $0.43 per 1,000 gallons n. Water hydraulic modeling review fee: Greater of $1,500 per submittal or actual outside consultant cost mote: this fee is not applicable to the infrastructure contemplated by this Agreement or to the two buildings and tower contemplated as the initial Marana Technology Campus development at the time this Agreement is being executed) o. Town of Marana construction sales tax: 4% 7. Notices. Any notice required under this Agreement shall be complete when sent via First Mass Mail or hand delivered to the following addresses. Any Party may change their address for purposes of notice under this Agreement by mailing a notice of change of address to the other Party. Owners: MARANA TECHNOLOGY CAMPUS, L.L.C. c/o Douglas J. Graazer, Member 911 west Grant Road Tucson, AZ 85705 NORTHWEST STORAGE, L.L.C. c/o Douglas J. Greazer, Member 911 west Grant Road Tucson, AZ 85705 {00038483. DOCX / 71 7/ 30/2014 9:26 AM FJC MARANA TECHNOLOGY CAMPUS PUBLIC WATER INFRASTRUCTURE PARTICIPATION AGRI.EMENT -4- Town: Town of Marana c/o Marana Legal Department 11555 West Civic Center Drive Marana, AZ 85653 8. Governing law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Arizona, and any lawsuit to enforce any provision of this Agreement or to obtain any remedy with respect to this Agreement shall be brought in the Pima County Superior Court, and for this purpose the Parties expressly and irrevocably consent to the jurisdiction of the Pima County Superior Court. 9. Court costs and reasonable attorneys' fees to prevailing Party in dispute. If a Party fails to perform any of its obligations under this Agreement, or if a dispute arises concerning the meaning or interpretation of any provision of this Agreement, the prevailing Party shall be entitled to all court costs and reasonable attorneys' fees incurred in enforcing or establishing its rights under Us Agreement. 10. Cancellation for conflicts. This Agreement is subject to A.R.S. § 38 --511, which provides for cancellation of contracts in certain instances involving conflicts of interest. 11. Counterparts. This Agreement may be executed in any number of counterparts. Each counterpart shall be deemed an original, but all counterparts shall constitute but one agreement. 12. Effective date of agreement. The date of this Agreement (the "Effective Date ") shall for all purposes be August 6, 2014, or the signature date of the Mayor's signature on this Agreement, whichever is later. The "owners ". MARANA TECHNOLOGY CAMPUS, L.L.C., an Arizona limited liability company a Douglas J. Grauer, Member Date: NORTHWEST STORAGE, L. L.C., an Arizona ATTEST: limited liability company 0 The "Town ": TOWN OF MARANA, an Arizona municipal corporation 0 Ed Honea, Mayor Jocelyn C. Bronson, Town Clerk Douglas J. Gratzer, Member APPROVED AS TO FORM: Frank Cassidy, Town Attorney (00038483. DOCX / 7) 7/30/2014 9:26 AM FJC MARANA TECHNOLOGY CAMPUS PUBLIC WATER INFRASTRUCTURE PARTICIPATION AGREEMENT -5- STATE OF ARIZONA ) ) ss. County of Pima ) The foregoing instrument was acknowledged before me this day of 2014, by Douglas J . Gratzer, Member of MARANA TECHNOLOGY CAMPUS, L.L.C., an Arizona limited liability company, on behalf of the LLC. (Seal) Notary Public STATE OF ARIZONA ) ) ss. County of Pima ) The foregoing instrument was acknowledged before me this day of �. 2014, by Douglas J. Gratzer, Member of NORTHWEST STORAGE, L.L.C., an Arizona limited liability company, on behalf of the LLC. (Seal) Notary Public 100038483,DOCX / 71 7/30/2014 9:26 AM FjC MARANA T ECHNOLOGY CAMPUS PUBLIC WATER INF RASTRUCTURE PARTICIPATION AGREEMENT -6- February 10, 2014 WLB No. 133033 xxx 1 003 W:1LEGALS1l 1303310T 2.doc EXHIBIT A LEGAL DESCRIPTION FOR MARA.NA TECHNOLOGY CAMPUS A portion of the Northeast Quarter of Section 5, Township 12 South, Range 12 East, Gila and Salt River Base and Meridian, Pima County, AZ described as follows; Parcel 1 The Northeast quarter and the vest half of the Northwest quarter of Lot 2 of Section 5, Township 12 South, Range 12 East, Gila and Salt River Meridian, Pima County, Arizona. Pa rcel 2 The East Ralf of the West Half of the South Half of Lot 2 of Section 5, Township 12 South, Range 12 East, Gila and Salt River Meridian, Pima County, Arizona. Parcel 3 The North Half of the East Half of the South Half of Lot 2 of Section 5, Township 12 South, Range 12 East, Gila and Salt River Meridian, Pima County, Prepared By: THE' LB GROUP, INC. Peter D. Cote, RLS 44121 Page 1 of 1 { r Ile A l 1 � 40 44121 0 PE TER 0. � COTE t IB CNA \3 �. EXPI 3 -31 - 201 5 Regular Council Meeting - February 18, 2014 - Page 48 of 413 PUBLIC WATER INFRASTRUCTURE PARTICIPATION AGREEMENT TOWN OF MARANA, ARIZONA (Tangerine Business Park) This Public Water infrastructure Participation Agreement (this "Agreement ") is made and entered into by and between LANDMARK TITLE ASSURANCE AGENCY OF ARIZONA, LLC, an Arizona limited liability company, as trustee under Trust 18206 -T only (the "Owner ") and the TOWN OF MARANA, an Arizona municipal corporation (the "Town " ). The Owner and the Town are sometimes collectively referred to in this Agreement as the "Parties," either of which is sometimes referred to as a "Party." RECITALS A. The Owner is the subdivider of the Tangerine Business Park subdivision, described in the plat recorded in the office of the Recorder of Pima County, Arizona, at sequence number 20120410281, and the owner of Blocks 1 through 4 and 6 through 10 of the Tangerine Business Park subdivision. B. The Owner is required to install and construct the subdivision infrastructure necessary to serve the Tangerine Business Park subdivision. C. The Owner has submitted assurances for the installation and construction of the Tangerine Business Park subdivision infrastructure, consisting of an "Agreement to Construct Subdivision Improvements/ Cash Account recorded in the office of the Recorder of Pima County, Arizona, at sequence number 20120410282 (the "Gash Assurances ") and an "Agreement to Construct Subdivision Improvements/ Third Party Trust recorded in the office of the Recorder of Pima County, Arizona, at sequence number 20120410283 (the "Third Party Trust Assurances " ). D. with the recording of the Tangerine Business Park subdivision plat, the Owner dedicated to the Town the 2.4-acre parcel of land identified as Tangerine Business Park subdivision Parcel "A" for use as a well, booster station, and reservoir site. E. The subdivision infrastructure covered by the Cash Assurances include the installation of a reservoir and a booster station and the rehabilitation of an existing well to serve future development within the Tangerine Business Park subdivision. F. The subdivision infrastructure covered by the Third Party Trust Assurances include the water facilities described in subparagraph 4.a below, including the installation of a new well to serve future development within the Tangerine Business Park subdivision. G. The Town desires to up -size the reservoir and booster station covered by the Cash Assurances in order to serve other development surrounding Tangerine Business Park. H. The Town desires to increase the capacity of the new well covered by the Third Party Trust Assurances and to accelerate its construction and installation in order to serve other development surrounding Tangerine Business Park (within the X -Zone and Y-- Zone). 100038463.DOCX / 7) 7/30/2014 9:48 AM TJC TANGERINE BUSINESS PARK PUBLIC WATER INFRASTRUCTURI? PARTICIPATION AGREF -WENT -1-- L The Town's acceleration of the new well construction will eliminate the Owner's need to rehabilitate the existing well to satisfy the Town's requirements. J. Concurrently with this Agreement, the Town is entering into a related agreement with the owner of the Marana Technology Campus property, located approximately a quarter mile west of Tangerine Business Park. K. Among other things, the Marana Technology Campus agreement provides for the Town to design and construct a 16 -Inch X -Zone water main extending a distance of about 1,650 feet from the Tangerine Business Park subdivision Parcel "A" well, booster station, and reservoir site to the eastern boundary of the Marana Techhnology Campus property. AGREEMENT NOW, THEREFORE, based on the foregoing recitals, which are incorporated here as the intention of the Parties in entering into this Agreement, the Parties agree as follows: 1. owner's release of engineering and design documents. The owner will release and turn over to the Town all reservoir, booster station, and well engineering and design documents for existing and future water facilities to be constructed and installed on Tangerine Business Park subdivision Parcel "A." 2. Town design and construction of water facilities. The Town will design and construct a reservoir, a booster station, and a new well sized to serve the Tangerine Business Park subdivision and other development surrounding Tangerine Business Park. The design and construction shall proceed and be completed as promptly as practicable, giving due consideration to the Town's compliance with public procurement requirements. The Town will do its best to complete construction by January 1, 2015. Notwithstanding any other requirements, the Town or its general contractor shall obtain at least three competitive and qualified bids for the new upsized well, and shall fully disclose those bids to the owner and to the Marana Technology Campus owner. 3. Town design and construction of offsite water amain. The Town may design, but shall not begin construction or give notice to proceed with construction of, the 16 -inch x -Zone water main described in recital K above, until the earlier of the following: a. The issuance of a building permit for the construction of a habitable structure on the Marana Technology Campus property or on any other property that requires connection to the 16 -inch X -Zone water main for potable water or fire flow, or b. The second anniversary of the effective date of this Agreement. 4. owner's obligation to pay certain reservoir and booster station costs. The owner shall release and pay $466,120 to the Town out of the existing cash account established under the Cash Assurances toward the design ($23,870) and construction ($442,250) of the reservoir and booster station. The Parties agree and acknowledge tlhat $466,120 is the amount the owner would have paid to design, construct, and install a reservoir and a booster station and to rehabilitate the existing well to serve future development within the Tangerine Business Park subdivision. 5. owner's obligation to pay certain reservoir and booster station cost overruns. The Parties currently estimate that the design and construction of the oversized reservoir and oversized booster station will cost $746,750, of which $280,630 will be paid by the Town and $466,120 will be paid by the owner. The Owner shall reimburse the Town 62.4% ($466,120/$746,750, rounded) of the cost of any and all oversized reservoir and oversized booster station cost overruns, up to a fao03$463.DOCx / 71 7/30/2014 9:48 AM FIC TANGERINE BUSINESS PARK PUBLIC WATER INFRASTRUCTURE PARTICIPATION AGREEMENT -2- maximum of $46,612. The owner shall pay this amount within 30 days after close of escrow of the sale of any of the property subject to the Third Party Trust Assurances. Any amounts unpaid after 30 days shall accrue simple interest at the rate of 10% per year until paid in full. For purposes of this paragraph, "oversized reservoir and oversized booster station cost overruns" means unforeseen costs directly resulting from the discovery of subsurface or latent physical conditions, including archaeological or cultural features, differing materially from those indicated in the construction documents, or conditions and circumstances of an unusual nature that differ materially from those ordinarily encountered and generally recognized as inherent in the work of the character provided for in the construction contract documents, and which directly impact the cost of installation and construction of the reservoir, booster station, and water campus site wall as contemplated by the Parties at the time this Agreement is executed, and does not include extra costs associated with features, capacity, items, etc., added to the reservoir, booster station, or water campus by or at the request of the Town or third parties. If the Parties disagree about whether the Owner is obligated to share in the cost of a particular cost overrun, the following descriptions of the particular work contemplated by the Parties at the time this Agreement is executed shall be used to resolve the disagreement: a. Water facilities the owner would have been required to install before this Agreement. A new potable water production facility to include: (1) A new 270,000 - gallon reservoir (2) A 1,700 - gallon per minute (gpm) pre- packaged booster station with shade structure (3) A 122 gpm production well (4) A primary power service with transformer pad (5) A shaded control rack with remote telemetry unit (RTU) (6) Provisions for backup power including generator connection plugs and transfer switch (7) A new block site wall (8) All site work and over - excavation and compaction improvements required to prepare the site for construction (9) All construction per American Water Works Association (AWWA) standards (10) All construction in conformance with Arizona Department of Environmental Quality (ADEQ) requirements for potable water b. oversized water facilities being constructed by the Town pursuant to this Agreement. A new potable water production facility to include: (1) A new 500,000 - gallon reservoir (2) A 2,000 gpm pre - packaged booster station with shade structure (3) A 200 gpm production well (4) Larger site footprint to accommodate the larger facilities 100038463. DOCX / 7) 7/ 30/ 2014 9:48 AM FJC TANGERINE BUSINESS PARK PUBLIC WA'T'ER INFRASTRUCTURE PARTICIPATION AGREEMEN1' 3 (5) A primary power service with transformer pad (6) A shaded control rack with remote telemetry unit (RTU) (7) Provisions for backup power including generator connection plugs and transfer switch (S) A new block site wall for larger site footprint (9) All site work and over - excavation and compaction improvements required to prepare the larger site for construction (10) All construction per AWWA standards (11) All construction in conformance with ADEQ requirements for potable water 6. owner's obligation to pay certain new well costs. The Parties currently estimate that the new oversized well will cost $225,000 for design ($25,000) and construction ($200,000). The Owner shall pay the Town half of the total design and construction cost of the new oversized well, up to a maximum of $125,000. The Parties agree and acknowledge that $125,000 is the amount the Owner would have paid to design, construct, and install the new well, if it were sized only to serve future development within the Tangerine Business Park subdivision. 7. Time for the owner's payment of reservoir and booster station cost overruns and new well costs; interest. The Owner shall pay the reservoir and booster station cost overruns described in paragraph 4 above and the new well costs described in paragraph 5 above within 30 days after close of escrow of the sale of any of the property subject to the Third Party Trust Assurances. Any amounts unpaid after 30 days shall accrue simple interest at the rate of 10% per year until paid in full. 8. Security for owner's obligations under this agreement; title insurance; release and reconveyance. The Owner's obligations under this Agreement, including without limitation the Owner's obligations under paragraphs 4 and 5 above, shall be secured by a deed of trust in the amount of $171,612 in favor of the Town recorded in the office of the Recorder of Pima County, Arizona, in substantially the form attached as Exhibit A to this Agreement. The Owner shall pay for and provide the Town with updated title work and a policy of title insurance in the face amount of $171,612 before and as a condition of the Town's execution of this Agreement. The Town shall promptly record a deed of release and full reconveyance, releasing the deed of trust, upon the Owner's payment of all sums due under paragraphs 4 and 5 above, plus the Trustee's fees for preparation of the deed of release and full reconveyance (currently $114.50). 9. Notices. Any notice required under this Agreement shall be complete when sent via First Class Mail or hand delivered to the following addresses. Any Party may change their address for purposes of notice under this Agreement by mailing a notice of change of address to the other Party. Owner: Landmark Title Trust 18206 -T Rancho Palomita Advisors, L.L.C. c/o Richard A. Spross, Manager P.D. Box 64152 Tucson, AZ 85728 100038463. DOCX / 71 7/ 30/ 2014 9:48 AM FJC TANGERINE BUSINESS PARK PUBLIC WATER INFRA5FRUCTURE PARTICIPATION AGREEMENT -4- Town: Town of Marana c/o Marana Legal Department 11555 West Civic Center Drive Marana, AZ 85653 10. Governing law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Arizona, and any lawsuit to enforce any provision of this Agreement or to obtain any remedy with respect to this Agreement shall be brought in the Pima County Superior Court, and for this purpose the Parties expressly and irrevocably consent to the jurisdiction of the Pima County Superior Court. 11. Court costs and reasonable attorneys' fees to prevailing Party in dispute. If a Party fails to perform any of its obligations under this Agreement, or if a dispute arises concerning the meaning or interpretation of any provision of this Agreement, the prevailing Party shall be entitled to all court costs and reasonable attorneys' fees incurred in enforcing or establishing its rights under this Agreement. 12. Exhibits. Any exhibit attached to this Agreement shall be deemed to have been incorporated in this Agreement by reference with the same force and effect as if fully set forth in the body of this Agreement. 13. Cancellation for conflicts. This Agreement is subject to A.R.S. § 38 -511, which provides for cancellation of contracts in certain instances involving conflicts of interest. 14. Counterparts. This Agreement may be executed in any number of counterparts. Each counterpart shall be deemed an original, but all counterparts shall constitute but one agreement. 15. Effective date of agreement. The date of this Agreement (the "Effective Date ") shall for all purposes be August 6, 2014, or the signature date of the Mayor's signature on this Agreement, whichever is later. The "owner ": LANDMARK TITLE ASSURANCE AGENCY OF ARIZONA, LLC, an Arizona limited liability company, as trustee under Trust 18206 -T only 0 Its: The "Town": TOWN OF MARANA, an Arizona municipal corporation 0 Ed Honea, Mayor Date: ATTEST: Jocelyn C. Bronson, Town Clerk 100038463.DOCX / 71 7/30/2014 9:48 AM FJC TANGERINE BUSINESS PARK PUBLIC WATER INFRASTRUCTURE PARTICIPATION AGREEMENT -5- F, i i- 009►1VM k:vj Frank Cassidy, Town Attorney STATE OF ARIZONA ) )ss. County of ) The foregoing instrument was acknowledged before me this day of 2014, by the of LANDMARK TITLE ASSURANCE AGENCY OF ARIZONA, LLC, an Arizona limited liability company, as trustee under Trust 18206 -T only. (Seal) Notary Public {00038463.DDCX / 7) 7/30/2014 9:48 AM FjC TANGERINE BUSINESS PARK PUBLIC WATER TNFRAS FRUCTURE PARTICIPATION AGREEMENT 6 RECORDING REQUESTED BY Town of Marana WHEN RECORDED MAIL TO: MARANA LEGAL DEPARTMENT 11555 W CIVIC CENTER DR MARANA, AZ $5653 SPACE ABOVE THIS LINE FOR RECORDER'S USE DEED OF TRUST AND ASSIGNMENT OF RENTS Date: August 6, 2014 Trustor: LANDMARK TITLE ASSURANCE AGENCY OF ARIZONA, LLC, an Arizona limited liability company, as trustee under Trust 1 8206 -T Whose Address is: c/o Richard A. Spross P.O. Box 64182 Tucson, AZ 85728 Beneficiary: Town of Marana Whose Address is: c/o Marana Legal Department 11 555 West Civic Center Drive Marana, AZ 85653 Trustee: Fidelity National Title Agency, 6245 E. Broadway, Ste 200, Tucson, AZ 85711 Property in Pima County, State of Arizona, described as: Blocks 'I through 4 and 6 through 10 of Tangerine Business Park subdivision, according to the plat recorded in the office of the Recorder of Pima County, Arizona, at sequence number 20120410281. together with all buildings, improvements and fixtures on the Property (collectively, the "Property"). This Deed of Trust is entered into by the Trustor, Trustee and Beneficiary. Trustor irrevocably grants and conveys to Trustee in Trust, with Power of Sale, the Property, together with leases, rents, issues, profits, or income generated by the Property (collectively, the "Property Income ") SUBJECT, HOWEVER, to the right, power, and authority given to and conferred upon Beneficiary to collect and apply the Property Income; AND SUBJECT TO existing taxes, assessments, liens, encumbrances, covenants, conditions, restrictions, rights of way, and easements of record. This Deed of Trust has been granted to secure: 1) performance of each agreement of Trustor contained in this Deed of Trust; and 2) payment of the indebtedness by Trustor in favor of Beneficiary set forth in the "Public Water Infrastructure Participation Agreement" between the Trustor and the Beneficiary dated August 6, 2014, in the principal sum of 171 612 . {00038492.DOCX / 3} Exhibit A to Public Water Infrastructure Participation Agreement (Tangerine Business Park) Town of Marana/Tangerine Business Park Public Water infrastructure Participation Agreement Deed of Trust and Assignment of Rents... Continued Page 2 TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR AGREES: ( To keep the Property in good condition and repair; not to remove or demolish any building on the Property; to complete or restore promptly and in good and workmanlike manner any building which may be constructed, damaged or destroyed on the Property and to pay when due all claims for labor performed and materials furnished in connection with the Property; to comply with all laws affecting the Property or requiring any alterations or improvements to be made on the Property; not to commit or permit waste of the Property; not to commit, suffer or permit any act upon the Property in violation of law; and do all other acts which from the character or use of the Property may be reasonably necessary, any specific enumerations in this Deed of Trust not excluding the general. (2) To provide, maintain and deliver to Beneficiary fire insurance satisfactory to and with loss payable to Beneficiary. The amount collected under any fire or other insurance policy may be applied by Beneficiary upon any indebtedness secured by this Deed of Trust in any order Beneficiary may determine, or at the option of Beneficiary the entire amount or any part of any insurance proceeds may be released to Trustor. Any application or release of insurance proceeds will not cure or waive any default or notice of trustee's sale under this Deed of Trust or invalidate any act done pursuant to the notice. (3) To appear in and defend any action or proceeding purporting to affect the security of this Deed of Trust or the rights or powers of Beneficiary or Trustee; including the cost of evidence of title and attorney's fees in a reasonable sum, in any action or proceeding in which Beneficiary or Trustee may appear, and in any suit brought by Beneficiary to foreclose this Deed of Trust. (4) To pay, before delinquent, all taxes, assessments, encumbrances and liens affecting the Property, with interest, that appear to be prior or superior to this Deed of Trust, and all costs, fees and expenses of this Trust, including without limitation the fees of Trustee for issuance of any Deed of Partial Release and Partial Reconveyance or Deed of Release and Full Reconveyance, and all lawful charges, costs, and expenses in the event of reinstatement of the obligations secured by this Deed of Trust. (5) If Trustor fails to make any payment or do any act required by this Deed of Trust, Beneficiary or Trustee may (but are not obligated to) make the payment or perform the act without further notice to or demand of Trustor and Beneficiary's or Trustee's payment or action does not release Trustor from Trustor's obligations under this Deed of Trust. Beneficiary and Trustee are authorized to enter upon the Property to take any action required of Trustor; to appear in and defend any action or proceeding purporting to affect the security of this Deed of Trust or the rights or powers of Beneficiary or Trustee; and to pay, purchase, contest or compromise any encumbrance, charge or lien which appears to be prior or superior to this Deed of Trust. (6) To pay immediately and without demand all sums expended by Beneficiary or Trustee pursuant to the provisions of this Deed of Trust, including reasonable attorneys' fees, together with interest from the date of expenditure at the greater of the rate provided for in the agreement secured by this Deed of Trust or the highest legal rate. Any amounts {00038492.DOCX / 3} Exhibit A to Public Water Infrastructure Participation Agreement (Tangerine Business Park) Town of Mara na/Tangerine Business Park Public water Infrastructure Participation Agreement Deed of Trust and Assignment of Rents... Continued Page 3 paid by Beneficiary or Trustee will become part of the debt secured by this Deed of Trust and a lien on the Property or immediately due and payable at the option of Beneficiary or Trustee. IT IS MUTUALLY AGREED: (7) That any award of damages in connection with any condemnation or governmental taking, for injury to the Property by reason of public use, or for damages for private trespass or injury to the Property, is assigned and will be paid to Beneficiary as further security for all obligations secured by this Deed of Trust. Beneficiary may hold these damages as further security or apply or release them in the same manner and with the same effect as provided for disposition of proceeds of fire or other insurance in Section 2 of this Deed of Trust. Trustor retains the right to sue for the damages set forth in this Section. (8) That time is of the essence of this Deed of Trust, and that by accepting payment of any sum secured by this Deed of Trust after its due date, Beneficiary does not waive Beneficiary's right either to require prompt payment when due of all other sums secured by this Deed of Trust or to declare default for untimely payment. (9) That at any time, without notice, upon written request of Beneficiary, Trustee may: (a) release and reconvey all or any part of the Property; (b) consent to the making and/or recording of any map or plat of the Property or any part of the Property; (c) join in granting any easement on the Property; or (d) join in or consent to any extension agreement or any agreement subordinating the lien or encumbrance of this Deed of Trust. Trustee's actions pursuant to this Section are taken without liability to Trustee and will not affect the personal liability of any person for payment of the indebtedness secured by this Deed of Trust or the encumbrance by this Deed of Trust on all Property remaining subject to this Deed of Trust. No sum representing the value of any portion of the Property that is affected by the Trustee's action must be credited on the indebtedness secured by the Deed of Trust unless the sum is received by Trustee. (10) That upon written request of Beneficiary stating that all sums secured by this Deed of Trust have been paid, , and upon payment of Trustee's fees, Trustee will release and reconvey, without covenant of warranty, express or implied, the Property then encumbered by the Deed of Trust. The recitals in this reconveyance of any matters or facts will be conclusive proof of their truthfulness. The Grantee in this reconveyance may be described as "the person or persons legally entitled thereto." (11) That as additional security for payment and performance of the obligations secured by this Deed of Trust, Trustor gives Beneficiary the right, power and authority to collect all income generated by the Property at any time that Trustor is in default in payment of any indebtedness secured by this Deed of Trust or in performance of any other provision of this Deed of Trust. When Trustor is in default, Beneficiary may enter upon and take possession of the Property or any part of the Property, without notice to Trustor, and may sue for or otherwise collect any income generated by the Property, including past due and unpaid rents. Beneficiary may apply the income actually collected, less costs and expenses of collection, including reasonable attorney's fees, {00038492. DOCX / 3) Exhibit A to Public Water Infrastructure Participation Agreement (Tangerine Business Park) Town of Marana/Tangerine Business Park Public Water Infrastructure Participation Agreement Deed of Trust and Assignment of Rents... Continued Page 4 upon any indebtedness secured by this Deed of Trust in any order Beneficiary may determine. None of the actions taken by Beneficiary pursuant to this section 10 will cure or waive any default or notice of trustee's sale under this Deed of Trust or invalidate any act done pursuant to notice of trustee's sale. (12) That upon default by Trustor in payment of any indebtedness secured by this Deed of Trust or in performance of any provision of this Deed of Trust, Beneficiary may declare all sums secured by this Deed of Trust immediately due and payable by delivering to Trustee a written declaration setting forth the Trustor's default and may demand that the Property be sold pursuant to a trustee's sale. Beneficiary will also deposit with Trustee this Deed of Trust and all documents evidencing expenditures secured by this Deed of Trust. (13) Trustee will record and give notice of trustee's sale in the manner required by law. Trustee will sell, in the manner required by law, the Property at public auction at the time and place fixed in the notice of trustee's sale to the highest bidder for lawful money of the United States, payable at time of sale. Trustee may postpone or continue the sale by giving notice of postponement or continuance by public declaration at the time and place last appointed for the sale. Trustee will deliver to the purchaser its deed conveying the property so sold, but without any covenant or warranty, expressed or implied. Any person, including Trustor, Trustee, or Beneficiary may purchase at the trustee's sale. (14) After deducting all costs, fees and expenses of Trustee and of this Trust, including the cost of evidence of title in connection with sale and reasonable attorney's fees of Trustee, Trustee will apply the proceeds of sale to payment of all sums then secured by this Deed of Trust including all other sums due under the terms of this Deed of Trust. To the extent permitted by law, an action may be maintained by Beneficiary to recover a deficiency judgment for any balance remaining unsatisfied after application of the proceeds of the trustee's sale. (15) In lieu of sale pursuant to the power of sale conferred by this Deed of Trust, this Deed of Trust may be foreclosed in the manner provided by law for the foreclosure of mortgages on real property. Beneficiary also retains all other rights and remedies available to it at law or in equity. All rights and remedies are cumulative. (15) That Beneficiary may appoint a successor Trustee in the manner prescribed by law. A successor Trustee will, without conveyance from the predecessor Trustee, succeed to all the predecessor's title, estate, rights, powers and duties. Trustee may resign by mailing or delivering notice of resignation to Beneficiary and Trustor. (17) That this Deed applies to, inures to the benefit of, and binds all parties to this Deed of Trust and their heirs, legatees, devisees, administrators, executors, successors and assigns. Whenever the context requires, the masculine gender includes the feminine and neuter, and the singular number includes the plural. (18) Trustee is not obligated to notify any party to this Deed of Trust of a pending sale under any other deed of trust or of any action or proceeding in which Trustor, Beneficiary or Trustee are a party. Trustor requests that a copy of any notice of trustee's sale under {00038492.DOCX / 3} Exhibit A to Public Water Infrastructure Participation Agreement (Tangerine Business Park) Town of Mara na/Tangerine Business Park Public Water Infrastructure Participation Agreement Deed of Trust and Assignment of Rents... Continued Page 5 this Deed of Trust be mailed to Trustor at the address set forth in the introductory section of this Deed of Trust . Trustor: LANDMARK TITLE ASSURANCE AGENCY OF ARIZONA, LLC, an Arizona limited liability company, as trustee under Trust 1 8266 -T only By: Its: NOTARY ACKNOWLEDGMENT(S) TO DEED OF TRUST AND ASSIGNMENT OF RENTS State of County of ss: The foregoing instrument was acknowledged before me this day of , 2014 by , the of LANDMARK TITLE ASSURANCE AGENCY OF ARIZONA, LLC, an Arizona limited liability company, as trustee under Trust 18266 -T only. (Seal) Nota Public My commission expires: {00038492.DOCX / 3} Exhibit A to Public Water Infrastructure Participation Agreement (Tangerine Business Park)