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HomeMy WebLinkAboutResolution 2016-020 Approve agreement contract for the Willow Vista SubdivisionMARANA RESOLUTION NO. 2016-020 RELATING TO UTILITIES At-1111ROVING AND AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT FOR CONSTRUCTION OF WATER FACILITIES UNDER PRIVATE CONTRACT FOR THE WILLOW VISTA SUBDIVISION WHEREAS the Town of Marana adopted Resolution No. 2015-117 on November 17, 2015, approvin the Final Plat of Willow Vista Lots 1-69, Common Area "A" (NUOS Common Area "B" (Open Space), and Parcel A, which was then recorded in the of-rice of the Recorder of Pima Count Arizona, on Novernber 20, 2015, at Se 20153240274 ( the "Willow Vista Subdivision") and WHEREAS Town staff has ne an A for Construction of Water Facilities under Private Contract for the Willow Vista Subdivision and WHEREAS the Ma and Council find that the terms and conditions of the a are in the best interest of the Town. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, that the A for Construction of Water Facilities under Private Contract for the Willow Vista Subdivision attached to and incorporated b this reference in this resolution as Exhibit A is hereb approved and the Ma is hereb authorized and directed to execute it for and on behalf of the Town of Marana, and the Town's Mana and staff are hereb directed and authorized to undertake all other and further tasks re or beneficial to carr out the terms, obli and objectives of the a g reement. PASS AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this I" da of March, 2016. N L O 1) MARANA 7 Ma td onea ^VN/ A% ATTEST.- APPROVED AS Y9 FORM: 10 J o /el y n Q./Bronson, Town Clerk 00045442.DOCX /I Marana Resolution No. 2016-020 rauk CassicK/fown Atto 2/23/2016 5:16 PM FJC TOWN OF MARANA AGREEMENT FOR CONSTRUCTION OF WATER. FACILITIES UNDER PRIVATE CONTRACT Willow Vista Subdivision THIS AGREEMENT (this "Agreement ") is entered into by and between the TOWN OF MARANA, an Arizona municipal corporation (the "Town "), and HEATER INVESTMENTS, INC., an Arizona corpo- ration (the "Applicant "). The Town and the Applicant are sometimes collectively referred to as the "Parties," each of which is sometimes individually referred to as a "Party." k,CITALS A. This Agreement is entered into and authorized pursuant to Title 14 of the Marana Town Code as it may be amended from time to time ( "Marana Town Code Title 14"). B. The Applicant desires for the Town to provide water service to the land described and depicted on the Final Plat of willow Vista Lots 1 -69, Common Area "A" (NUOS), Common Area "B" (open Space), and Parcel A, recorded in the office of the Recorder of Pima County, Arizona, on November 20, 2015, at Sequence 20 153240274 (the "willow Vista Subdivision ") C. Applicant was the sole beneficiary of FIDELITY NATIONAL TITLE INSURANCE COMPANY, an Arizona corporation, as trustee under Trust No. 60,411 (the "Heater Trust "), the original sub- divider of the willow Vista Subdivision. D. Public road rights-of-way, Parcel "A ", and certain other property rights located within the willow Vista Subdivision were dedicated to the Town upon recording the plat of the Willow Vista Subdivision. The lots and other property rights retained by the Heater Trust after recording the plat of the willow Vista Subdivision are referred to in this Agreement as the "Subject Prop- erty. " E. Richmond American Homes of Arizona, Inc., a Delaware corporation, is the controlling beneficiary of FIDELITY NATIONAL TITLE INSURANCE COMPANY Trust No. 60,411, which are to- gether referred to in this Agreement as "Richmond American." F. The Heater Trust sold the Subject Property to Richmond American on December 22, 2015. G. Upon close of escrow of the Subject Property's sale to Richmond American, the Heater Trust was terminated. H. A condition of Richmond American's December 22 purchase of the Subject Property obligates Applicant to secure water service from the Town for the Subject Property and to install those certain water infrastructure improvements referred to in this Agreement as the "Applicant - Installed Facility." 00045075.DOCX 13 1 2/23/2016 4:04 PM I. The required plans, specifications, and materials for the Applicant - Installed Facility have been approved by the Town. J. If constructed as designed, the Applicant- Installed Facility will include elements and capacity sufficient to serve other new Town customers, and to that extent the Parties wish to pro- vide for partial reimbursement to the Applicant in accordance with Marana Town Code section 14 -4 -3 (capacity requirements). K. The Applicant desires that the Town take ownership of, operate, and service the Appli- cant- Installed Facility. L. The Town is willing to accept the Applicant - Installed Facility and permit it to be con- nected to the Town water system provided it meets Town standards and the work is done in accord- ance with Town requirements. M. The Parties acknowledge that the Applicant - Installed Facility was originally planned to be located on property located at the southwest corner of Cortaro Road and Sandy Desert Trail, and that the Applicant's decision to locate it on Parcel "A" of the Willow Vista Subdivision avoided the $50,000 in property acquisition costs that would have been incurred if the Applicant had not provided Parcel "A ". N. The Parties acknowledge that placement of the Applicant- Installed Facility on Parcel "A" of the Willow Vista Subdivision required Applicant to acquire property rights from third parties for an as -yet undetermined in -kind cost associated with making water service and facilities available and accessible to those third party properties. o. The Parties acknowledge that the Applicant has incurred out -of- pocket engineering costs of approximately $42,500in connection with the design, approval, and construction of the Applicant - Installed Facility. P. The Work is being undertaken as a condition of subdivision development and, pursuant to A.R.S. § 34 -201 paragraph L, may be constructed without compliance with Title 34 of the Ari- zona Revised Statutes. Q. To assure that the Applicant's costs for the Work are reasonable, the Applicant sought bids from Smyth Industries, Inc., Herman Contracting, Inc. (formerly known as P &H Contracting, Inc.), and The Ashton Company, all of which are on the City of Tucson job order contracting list. Of the three, only Smyth Industries was willing to submit a bid; the others were too busy. R. The Applicant's costs for the Work are consistent with costs for recent, similar publicly bid work undertaken by or on behalf of the Town. AGREEMENT Now, THEREFORE, in consideration of the foregoing premises and the mutual covenants set forth in this Agreement, the Parties hereby agree as follows: 1. The Applicant - Installed Facility 1.1. applicant installation of'thc applicant - Installed Facility. The Applicant has designed and shall install, at Applicant's own expense (subject to the reimbursement provisions of this Agree- ment), the water infrastructure improvements as depicted in Plan No. ENG 1510 -005 as approved by the Town and on file in the office of the Town of Marana Water Utility (the "Facility Plan "). 00045075.DOCX 13 2 2/23/2016 4:04 PM The water infrastructure improvements depicted on the Facility Plan are referred to in this Agree- ment as the "Applicant- Installed Facility," and shall conform to the design standards of the City of Tucson Water Department and the Town of Marana Town Code Title 14 and special specifica- tions and details as approved by the Town and by this reference made a part of this Agreement. The Facility Plan shall include a plan note identifying the Applicant - Installed Facility as a new water facility and shall show any and all alterations to the existing water system. Construction and installation of the Applicant- Installed Facility in accordance with the Facility Plan, including with- out limitation all labor, materials, equipment, supplies, and tools required for the construction and installation, is referred to in this Agreement as the "Work." 1.2. York by licensed contractor. The work shall be performed by a contractor properly li- censed by the State of Arizona as determined by the Arizona Registrar of Contractors. In addition to any other contractor's license classifications required by the Arizona Registrar of Contractors, the contractor shall hold contractor's license classifications A. A -12 and A -16. 1.3. Payment of connection fees. Before any service connections are made from the Town's water system to the Applicant - Installed Facility, the person or entity seeking the service connection shall pay to the Town the connection fees and any other fees required by Marana Town Code Title 14. 1.4. Anticipated cost per meter. The person or entity seeking installation of a meter from the Town shall pay all applicable fees and charges in effect at the time of the meter installation request. As of the effective date of this Agreement, the Town's fees and charges to install a five- eighths- inch water meter on the Subject Property are: 1.4.1. Meter Install Fee: $360 1.4.2. water Infrastructure Impact Fee : $2,457 1.4.3. Water Resource Development Fee: $1 ,771 1.5. Applicant- Installed Facility acceptance by Town. No service connections shall be made from the Town's water system to the Applicant- Installed Facility until the Applicant - Installed Fa- cility has been accepted by the Town in accordance with Marana Town Code Title 14. 1.6. Applicant's certification. Execution of this Agreement certifies that the Applicant has re- viewed the Facility Plan and all other specifications applicable to the Work and has approved and agrees with the location of all service lines. 1.7. Termination for lack of Work. Approval of the Facility Plan shall lapse and this Agreement shall terminate if more than one year has passed since the date of this Agreement and the work has not begun, or if the work is discontinued for a period of one year. 1.8. Reimbursement by the Town. Within 30 days after the Town's final acceptance of the Work, the Town shall reimburse the Applicant for Applicant's actual cost of oversizing the willow Vista Booster Station manifold. The Parties' current estimate of Applicant's actual oversizing cost reimbursement from the Town is $8,355. 1.9. Oversizing Recovery Charge. The Parties have determined that the Cortaro- Oshrin Z -zone service area will have sufficient capacity to serve an additional 334 equivalent demand units (EDUs) as a result of and upon completion of the work and after connection of 69 lots on the Subject Property. The Parties' current estimate of the Applicant's cost of completing the work is $383,867 after the Town's oversizing cost reimbursement and not including the items described 00045075.DOCX 13 3 2/23/2016 4:04 PM in Recitals M, N. and 0 of this Agreement. Consequently, pursuant to Marana Town Code section 14 -4 -3 (C), the Town hereby establishes an "oversizing recovery charge" of $1,145 per EDU for connections within the Cortaro- oshrin Z -zone service area whose capacity is made possible as a result of the Work. For purposes of this paragraph, all of the following apply: 1.9.1. The oversizing recovery charge shall be payable only for the first 334 EDUs in the Cortaro- oshrin z -zone service area or until the tenth anniversary of this Agreement, whichever occurs first. 1.9.2. The Applicant shall have a beneficial ownership interest in the Cortaro- Oshrin z -zone service area for the period set forth in subparagraph 1.9.1 above sufficient to prohibit connection in that area unless and until the oversizing recovery charge is paid. 1.9.3. One EDU is a typical single family residence served by a five - eighths inch meter. EDU equivalencies for other uses and meter sizes shall be based on standard Town equivalency tables and calculations. 1.9.4. The number of EDUs subject to the oversizing recovery charge has been calculated assuming that the lots on the Subject Property will be served by five - eighths inch meters. If they are served by larger meters, the number of EDUs required to pay the oversizing recovery charge shall be reduced accordingly, based on standard Town equivalency tables and calcula- tions, and the "oversizing recovery charge" set forth in paragraph 1.9 above shall be re- calcu- lated accordingly. 1.9.5. The Town makes no guarantee that the Applicant will receive full reimbursement of the Applicant's cost of completing the Work or that the Applicant will receive payment of the "oversizing recovery charge" from all lands currently located in the Cortaro- Oshrin z -zone. Future development in the Cortaro- oshrin z -zone whose capacity is not made possible as a result of the Work will not be required to pay the "oversizing recovery charge." 2. Engineering and Inspection 2.1. Registered civil engineer. The Applicant shall employ a registered Civil Engineer to de- sign, lay out, establish control lines for and certify the layout of the Work according to the Facility Plan. 2.2. Town inspector's authority. Any inspector authorized by the Town shall have full inspec- tion authority over the Work. 2.3. Inspection provisions. The Applicant shall furnish the Town's inspector with all facilities reasonably necessary to inspect the Work. The Work shall be subject to Town inspection at all times. Defective work shall be corrected in a manner satisfactory to the Town's inspector. Inspec- tion by the Town is for the purpose of ensuring compliance with plans and specifications only. The Town makes no guarantee as to the safety or engineering soundness of plans prepared by Applicant or any contractor. 2.4. Payment of Town inspector's overtime cost. If scheduling by Applicant's contractor rea- sonably requires the Town's inspector to work overtime, the Applicant or Applicant's contractor shall pay the Town for any additional salaries, expenses or employee benefits relating to the over- time. For purposes of this paragraph, overtime is any time over 40 hours worked in a seven -day work period, any time over eight hours worked Monday through Friday, and any time worked on weekends and legal holidays observed by the Town. 000454 75. DOCX 13 4 2/23/2416 4:04 PM 3. Preconstruction Procedure 3.1. Request to begin construction. The Applicant shall submit a written request to begin con- struction to the Town five working days before the work is to commence. 3.2. Construction permit. This Agreement shall be completed, signed and notarized, and re- turned to the Town prior to issuance of a construction permit for the Work. 3.3. Start and completion of the Work. No portion of the work shall begin until the Town has issued a construction permit specifying the starting date and a reasonable time for completion. 3.4. Progress of the Work. The work shall be commenced and carried on at such points and in such order as may be directed by the Town. 3.5. Materials sampling and testing. Materials shall be available for sampling and testing by the Town prior to being used in the work. Materials that fail to meet Town specification shall be re- moved from the site. 3.6. Permits and approvals. The Applicant shall, at Applicant's expense, obtain all necessary permits and licenses for the work, pay all fees and comply with all laws, ordinances and regulations relating to the work. 4. Construction 4.1. Applicant's presence on site. The Applicant, or Applicant's designated agent, shall be pre- sent at all times during performance of the Work. The name of the Applicant's designated agent and the contractor performing the Work shall be furnished to the Town before the Work begins. Instructions given by the Town to the designated agent shall be deemed to have been given to the Applicant. 4.2. Competence and diligence. The Applicant shall employ only competent and efficient la- borers, mechanics or artisans on the work, and the Applicant agrees to perform the work diligently to complete the work on or before the completion date given in the notice to proceed. 4.3. Paving. The Applicant shall identify and locate all water valves prior to paving and set valve boxes to final grade after paving. 4.4. Alterations to the existing Town water system. The Applicant shall, at Applicant's expense, make any and all alterations to the existing water system either on -site or off-site necessitated by paving, drainage, or other improvements caused by the development of the Subject Property. 4.5. Worksite safety. The Applicant shall require all contractors and subcontractors performing any portion of the Work to comply with all safety requirements of the Occupational Safety and Hazards Act as set forth by the Federal Government and as implemented by the State of Arizona. The Applicant or its contractors shall be solely responsible for all fines or other penalties provided for by law for any violations of the Occupational Safety Hazards Act. 5. Dedication 5.1. Transfer of the Applicant - Installed Facility to the Town. Upon the Town's final acceptance of the Work, the Applicant shall at no cost grant, bargain, sell, convey, transfer and deliver to the Town the Applicant -- Installed Facility free and clear of all liens, claims, charges or encumbrances. 00045075.1)OCX 13 5 2/23/2016 4:04 PM 5.2. One-year warranty. The Applicant guarantees the Work to be free from all failures due to poor workmanship or materials for a period of one year from the date of the Town's final ac- ceptance of the Work. 5.3. other conflicting construction prohibited. The Applicant shall not construct or allow the construction of any utility, building, or other improvement that would interfere with the operation or maintenance of the Applicant - Installed Facility. 5.4. Applicant's obligation to maintain finished grade. The Applicant guarantees that all ser- vice lines, meters, and meter boxes on the Subject Property will be to finished grade and that Applicant will remain responsible for raising or lowering said services as required until the Subject Property is fully developed. 5.5. Acceptance by the Town. The Town shall accept title to and take possession of the Appli- cant- Installed Facility when the Work has been completed to the satisfaction of the Town. Subject to the Applicant's continuing obligations under this Agreement, the Town shall operate and service the Applicant - Installed Facility after taking over possession of it under this paragraph. 6. Miscellaneous 6. 1. Indemnity. Applicant shall indemnify, defend, and hold harmless the Town, its Mayor and Council, officers and employees, boards, committees and commissions from and against any loss, claim, suit, demand, cause of action, or liability of any nature, including but not limited to damage to property and injuries to persons, including death, arising or alleged to have arisen, in whole or in part, out of any negligent act or omission of Applicant or any contractor, subcontractor, or any person employed directly or indirectly by any of them in the performance of the Work or in the operation of the Applicant - Installed Facility. 6.2. Binding effect. This agreement shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors and assigns of the Parties. 6.3. Consent required for assignment. Applicant may not assign this Agreement without the prior written consent of the Town. 6.4. Cancellation for conflict of interest. This agreement is subject to A.R.S. § 38 -511, which provides for cancellation in certain instances involving conflict of interest. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last date set forth be- low their respective signatures. [Signature page follows.] 00045075.DoCX 13 6 2/23/2016 4:04 PM THE "TOWN ": THE TOWN OF MARANA, an Arizona municipal corporation B Ed 14onea, Ma Date: 3 ���4 � FNAU-Nifts 1 el ronson, Clerk c � A APPROVED AS TO FORM: F ,Y/ank Caste, -Town Atto STATE O&ARIZONA THE "APPLICANT": HEATER INVESTMENTS, INC., an Arizona corporation Sandra H. Heater, President D ate: rf,:� ss Count of Pima The fore instrument was acknowled before me on b Sandra H. Heater, President of HEATER INVESTMENTS, INC., an Arizona corp ratiow, on behalf of the corporation. 2 0 (Seal) 1&0 L!�V4 , %Si A* 0 Notar Publ. do 40 I SOG Z WE Pe % NV i 00045075.DOCX 13 2123/2016 4:04 PM