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HomeMy WebLinkAboutResolution 2021-011 Authorizing Offsite Water and Sewer Facilities for Mandarina MARANA RESOLUTION NO. 2021-011 RELATING TO UTILITIES; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE AGREEMENTS FOR CONSTRUCTION OF WATER AND SEWER FACILITIES UNDER PRIVATE CONTRACT WITH MANDARINA HOLDINGS, LLC FOR MANDARINA OFFSITE WATER AND OFFSITE SEWER FACILITIES WHEREAS Mandarina Holdings, LLC desires for the Town to provide water and sewer services to the land described and depicted in the Mandarina Specific Plan, adopted by Marana Ordinance No. 2009.02,recorded in the office of the Recorder of Pima County, Arizona, at Docket 13499, Page 8 (Sequence 20090340005), and amended by an administrative amendment dated October 30, 2019; and WHEREAS pursuant to the Mandarina Development Agreement recorded in the office of the Recorder of Pima County, Arizona, on December 4, 2020 at Sequence 20203390091, Town staff has negotiated an Agreement for Construction of Water Facilities Under Private Contract for Mandarina Offsite Water and an Agreement for Construction of Sewer Facilities Under Private Contract for Mandarina Offsite Sewer (together, the "Facility Service Agreements"); and WHEREAS the Mayor and Council find that the terms and conditions of the agreements 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 Facility Service Agreements attached to and incorporated by this reference in this resolution as Exhibits A and B are hereby approved and the Mayor is hereby authorized and directed to sign them for and on behalf of the Town of Marana, and the Town's Manager and staff are hereby directed and authorized to undertake all other and further tasks required or beneficial to carry out the terms, obligations, and objectives of the agreements. 1/27/2021 11:09 AM DU/JF PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 2nd day of February, 2021. Mayor H nea ATTES • APPROV II AS TO FORM: Cherry Laws• , own Clerk Jan: „ rall, Town Attorney 1 MARANA AZ ESTABLISHED 1977 1/27/2021 11:09 AM DU/JF EXHIBIT A TOWN OF MARANA AGREEMENT FOR CONSTRUCTION OF WATER FACILITIES UNDER PRIVATE CONTRACT Mandarina Offsite Water THIS AGREEMENT (this "Agreement") is entered into by and between the TOWN OF MARANA, an Arizona municipal corporation (the "Town"), and MANDARINA HOLDINGS, LLC, an Arizona limited liability company (the "Developer"). The Town and the Developer are sometimes collectively referred to as the "Parties," each of which is sometimes individually referred to as a"Party." RECITALS 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 Developer desires for the Town to provide water service to the land described and depicted in the Mandarina Specific Plan, adopted by Marana Ordinance No. 2009.02, recorded in the Pima County Recorder's office at Docket 13499, Page 8 (Sequence 20090340005), and amended by an administrative amendment dated October 30, 2019, whose land area is referred to in this Agreement as the"Subject Property" C. The Developer is the owner of the"Subject Property,- D, As a condition of securing water service from the Town for the Subject Property, the Developer agrees to install those certain water infrastructure improvements (the-Developer- Installed Facility") in accordance with the required plans, specifications, and materials as outlined and depicted in the Water Plan for Mandarina Offsite Public 16" Water, Zone Transmission Main, Plan No. ENG , sealed by on and approved by the Town of Marana Water Director on (the "Facility Plan"), which is on file in the office of the Town of Marana Water Department. E. The Parties are also parties to the "Mandarina Development Agreement," recorded in the Pima County Recorder's office on December 4, 2020 at Sequence 2020 03390091 and approved by Marana Resolution No. 2020-130, adopted by the Marana Town Council on December 1, 2020. F. The Mandarina Development Agreement governs development of the Subject Property and anticipates the Developer's installation of the Developer-Installed Facility, which is referred to in the Mandarina Development Agreement as the "Offsite 16-Inch Potable Water Main." G. If constructed as designed, the Developer-Installed Facility will include elements and capacity sufficient to serve other new Town customers, and to that extent the Parties wish to provide for partial reimbursement to the Developer in accordance with Marana Town Code section 14-4-3 (capacity requirements). H. If constructed as designed, the current total estimated construction cost for the Developer-Installed Facility is S1,363.643. 00074000.txx-x/11 1. Based on the water modeling for the development of the Subject Property, and assuming 2,000 gallons per minute of capacity is set aside for fire flow, the Town concludes that the Developer-Installed Facility will have total capacity for 2,730 EDUs. The Parties currently assume that 2,005 EDUs will be developed on the Subject Property, which would leave excess capacity in the Developer-Installed Facility of 725 EDUs J. The Developer desires that the Town take ownership of, operate, and service the Developer-Installed Facility. K. The Town is willing to accept the Developer-Installed Facility and permit it to be connected to the Town water system provided it meets Town standards and the work is done in accordance with Town requirements. 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 Developer-Installed Facility 1.1. Developer installation of the Developer-Installed Facility. The Developer has designed and shall install, at the Developer's own expense (subject to the reimbursement provisions of this Agreement and the Mandarina Development Agreement), the water infra- structure improvements as depicted in the Facility Plan. The water infrastructure improvements depicted on the Facility Plan are referred to in this Agreement as the -Developer-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 specifications 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 Developer-In-stalled Facility as a new water facility and shall show any and all alterations to the existing water system. Construction and installation of the Developer-Installed Facility in accordance with the Facility Plan, including without 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. Competitive bids. As a condition of and prerequisite to receiving any reimbursement under this Agreement, the Developer shall go through the competitive bidding process for the Work in compliance with Title 34 of the Arizona Revised Statutes, 1,3. Work by licensed contractor. The Work shall be performed by a contractor properly licensed 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. 1,4. Payment q'conneclion jims. Before any service connections are made from the Town's water system to the Developer-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. 1.5. Developer-Installed Facility acceptance hy Town. No service connections shall be made from the Town's water system to the Applicant-Installed Facility until the Applicant- Installed Facility has been accepted by the Town in accordance with Marana Town Code Title ot-xv4poo.rxx-,x/i2 14. 1.6. Developer's certification Execution of this Agreement certifies that the Developer has reviewed 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 fir 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. Oversizing Recovery Charge, The Parties have determined that the Developer- In- stalled Facility will have sufficient capacity to serve an additional 725 EDUs as a result of and upon completion of the Work and after connection of 2,005 EDUs on the Subject Property. Consequently, pursuant to Marana Town Code section 14-4-3 (C), the Town hereby establishes an "oversizing recovery charge" of$499.50 per EDU for connections whose capacity is made possible as a result of the Work. For purposes of this paragraph, all of the following apply: 1.8.1. The oversizing recovery charge shall be payable only until the Developer- Installed Facility reaches its design capacity, currently anticipated to be for an additional 725 EDUs made possible as a result of the Work or until the termination of the Mandarina Development Agreement, whichever occurs first. Based on the oversizing recovery charge of $499.50 per EDU, the Parties' current estimate of the Developer's total potential reimbursement from the Town from oversizing recovery charges under this Agreement is $362,137.50. 1.8.2. The Town will deposit the oversizing recovery charge payments for con- structed EDUs benefitted by the Developer-Installed Facility in the "Reimbursement Account" established pursuant to the Mandarina Development Agreement and will reimburse the Developer in accordance with the "Reimbursement Payments" provision of the Mandarina Development Agreement, 1.8.3. The Developer shall have a beneficial ownership interest in the service area for the Developer-Installed Facility sufficient to prohibit connection in that area unless and until the oversizing recovery charge is paid. 1.8.4. 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. '1.8.5. The number of EDUs subject to the oversizing recovery charge has been calculated based on a calculated 16 pipe capacity and assuming the development of 2005 lots on the Subject Property served by five-eighths inch meters. If the actual pipe capacity and/or the actual number of lots and size of meters used to develop the Subject Property results in a different EDU count, the number of EDUs required to pay the oversizing recovery charge shall be adjusted accordingly, based on standard Town equivalency tables and calculations, and the "oversizing recovery charge' set forth in subparagraph 1 8 1 above shall be re-calculated accordingly. 1.8.6. The Parties acknowledge that final construction quantities and amounts will be provided after construction of the Developer Installed-Facility is completed. 1.8.7. The Town makes no guarantee that the Developer will receive full 00074000.1)00(/13 reimbursement of the Developer's cost of completing the Work. 2. Engineering and Inspection 2.1. Registered civil engineer. The Developer shall employ a registered Civil Engineer to design, 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 inspection authority over the Work. 2.3. Inspection provisions. The Developer 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. Inspection 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 the Developer or any contractor. 2.4, Payment of Town inspector's overtime cost, If scheduling by the Developer's contractor reasonably requires the Town's inspector to work overtime, the Developer or Developer's contractor shall pay the Town for any additional salaries, expenses or employee benefits relating to the overtime. 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. 3. Preconstruction Procedure 3,1. Request to begin construction. The Developer shall submit a written request to begin construction 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 returned 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. 34. 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 removed from the site. 3.6. Permits and approvals. The Developer shall, at Developer'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. Town permit fees for the Work are waived pursuant to the Mandari na Development Agreement. 4. Construction 4.I. Developer's presence on site. The Developer, or Developer's designated agent, shall be present at all times during performance of the Work. The name of the Developer's designated agent and the contractor performing the Work shall be furnished to the Town before 0007400olicxx/14 the Work begins. Instructions given by the Town to the designated agent shall be deemed to have been given to the Developer. 4.2. Competence and diligence. The Developer shall employ only competent and efficient laborers, mechanics or artisans on the Work, and the Developer agrees to perform 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 Developer shall, at Developer'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 Developer 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 Developer 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 Developer-Installed Facility to the Town. Upon the Town's final acceptance of the Work, the Developer shall at no cost grant, bargain, sell, convey, transfer and deliver to the Town the Developer-Installed Facility free and clear of all liens, claims, charges or encumbrances. 5.2. One-year warranty. The Developer 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 acceptance of the Work. 5.3 other conflicting construction prohibited, The Developer shall not construct or allow the construction of any utility, structure, building, or other improvement that would interfere with the operation or maintenance of the Developer-Installed Facility. 5.4. Developer's obligation to maintain finished grade. The Developer guarantees that all service lines, meters, and meter boxes on the Subject Property will be to finished grade and that the Developer 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 Developer-Installed Facility when the Work has been completed to the satisfaction of the Town Subject to the Developer's continuing obligations under this Agreement, the Town shall operate and service the Developer-Installed Facility after taking over possession of it under this paragraph. 6. Miscellaneous 6.1. Indemnity, Developer shall indemnify, defend, and hold harmless the Town, its Mayor and Council, officers and employeesboards, committees and commissions from and against any loss, claim, suit, demand, cause of action, or liability of any nature, including but 000Tt000.txx:x/15 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 the Developer or any contractor, subcontractor, or any person employed directly or indirectly by any of them in the petformance of the Work or in the operation of the Developer-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. 63, Consent required for assignment. The Developer 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 AR.S. § 38- 511, which provides for cancellation in certain instances involving conflict of interest. [Signature page follows.] oar.t000.txxx/16 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last date set forth below their respective signatures. THE"TOWN": THE"DEVELOPER": TOWN OF MARANA, MANDARINA HOLDINGS, LLC, an Arizona municipal corporation an A izi a limitof liability comp. By: Brir A - . _ A Ed Honea, Mayor - ...,. r lellera le.r N. *u Date: Date. ATTEST: Cherry L. Lawson, Town Clerk APPROVED AS TO FORM: Jane Fairall,Town Attorney STATE OF ARIZONA ) )ss County of Maricopa ) The foregoing instrument was acknowledged before me on January 2.-:-2021 by Karl N. Huish, the Manager of MANDARINA HOLDINGS, LLC, an Arizona limited liability company (the"Developer"), on its behalf. . (Seal) Itl HANNAH JUNE MARTIN 1ff A , 1,,,, J i it .............._ ) N°4".Public Notary- rtl. Conviss'ion Numbet'683950 Public Ewes'June 6,2024 Maricopa County 00074000 I)00(/17 EXHIBIT B TOWN OF MARANA AGREEMENT FOR CONSTRUCTION OF SEWER FACILITIES UNDER PRIVATE CONTRACT Mandarina Offsite Sewer THIS AGREEMENT (this "Agreement") is entered into by and between the TOWN OF MARANA, an Arizona municipal corporation (the "Town"), and MANDARINA HOLDINGS, LLC, an Arizona limited liability company (the"Developer"). The Town and the Developer are sometimes collectively referred to as the "Parties," each of which is sometimes individually referred to as a "Party RECITALS 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 Developer desires for the Town to provide sewer service to the land described and depicted in the Mandaiina Specific Plan, adopted by Marana Ordinance No. 2009.02, recorded in the Pima County Recorder's office at Docket 13499, Page 8 (Sequence 20090340005), and amended by an administrative amendment dated October 30, 2019, whose land area is referred to in this Agreement as the"Subject Property." C. The Developer is the owner of the"Subject Property." D. As a condition of securing sewer service from the Town for the Subject Property, the Developer agrees to install those certain sewer infrastructure improvements (the"Developer- Installed Facility")in accordance with the required plans, specifications, and materials as outlined and depicted in the Plan for Mandarina Offsite Public 15" Sewer, Plan No. ENG sealed by on and approved by the Town of Marana Water Director on (the"Facility Plan"), which is on file in the office of the Town of Marana Water Department. E. The Parties are also parties to the "Mandarina Development Agreement," recorded in the Pima County Recorder's office on December 4, 2020 at Sequence 202003390091 approved by Marana Resolution No. 2020-130, adopted by the Marana Town Council on December 1, 2020 F. The Mandarina Development Agreement governs development of the Subject Property and anticipates the Developer's installation of the Developer-Installed Facility, which is referred to in the Mandarina Development Agreement as the"Offsite 15-Inch Sewer." G. If constructed as designed, the Developer-Installed Facility will include elements and capacity sufficient to serve other new Town customers, and to that extent the Parties wish to provide for partial reimbursement to the Developer in accordance with Marana Town Code section 14-4-3 (capacity requirements). 00073499 1.X1CX/11 H, If constructed as designed, the current total estimated construction cost for the Developer-Installed Facility is $2,054,036. 1. The Developer-Installed Facility has capacity for 4,927 EDLIs. The Subject Property is estimated to have a total of 2,005 EDUs, leaving excess capacity in the Developer- Installed Facility of 2,922 EDUs. J. The Developer desires that the Town take ownership of, operate, and service the Developer-Installed Facility. K. The Town is willing to accept the Developer-Installed Facility and permit it to be connected to the Town sewer system provided it meets Town standards and the work is done in accordance with Town requirements. AGREEMENT NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants set forth in this Agreement, the Parties hereby agree as follows- I. The Developer-Installed Facility 1.1. Developer installation of the Developer-Installed Facility. The Developer has designed and shall install, at the Developer's own expense (subject to the reimbursement provisions of this Agreement), the sewer infrastructure improvements as depicted in the Facility Plan. The sewer infrastructure improvements depicted on the Facility Plan are referred to in this Agreement as the"Developer-Installed Facility," and shall conform to the design standards of the Pima County Regional Wastewater Reclamation Depattment and the Town of Marana Town Code Title 14 and special specifications 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 Developer-Installed Facility as a new sewer facility and shall show any and all alterations to the existing sewer system. Construction and installation of the Developer-Installed Facility in accordance with the Facility Plan, including without 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. Competitive bids. As a condition of and prerequisite to receiving any reimbursement under this Agreement, the Developer shall go through the competitive bidding process for the Work in compliance with Title 34 of the Arizona Revised Statutes. 1.3. Work hi' licensed contractor. The Work shall be performed by a contractor properly licensed 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, 1.4. Payment of connection lees, Before any service connections are made from the Town's sewer system to the Developer-Installed Facility, the person or entity seeking the 00071999 IXXX/12 service connection shall pay to the Town the connection fees and any other fees required by Marana Town Code Title 14. 1.5. Developer-installed Facility acceptance by Town Service connections shall not be made to the Developer-Installed Facility, and the Developer-Installed Facility shall not be connected to the Town's sewer system, until the Developer-Installed Facility has been accepted by the Town in accordance with Marana Town Code Title 14. 1.6. Developer's certification. Execution of this Agreement certifies that the Developer has reviewed 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. )vers/zing Recovery Charge, The Parties have determined that the Developer- Installed Facility will have sufficient capacity to serve an additional 2,922 EDUs as a result of and upon completion of the Work and after connection of 2,005 EDUs on the Subject Property. Consequently, pursuant to Marana Town Code section 14-4-3 (C), the Town hereby establishes an -oversizing recovery charge" of$416.89 per EDU for connections whose capacity is made possible as a result of the Work. For purposes of this paragraph, all of the following apply. 1.8.1. The oversizing recovery charge shall be payable only until the Developer-Installed Facility reaches its design capacity, currently anticipated to be for an additional 2,922 EDUs whose capacity is made possible as a result of the Work or until the termination of the Mandarina Development Agreement, whichever occurs first. Based on the oversizing recovery charge of$416,89 per EDU, the Parties' current estimate of the Developer's total potential reimbursement through oversizing recovery charges for the Developer-Installed Facility is $1,218,164. 1.8.2. The Town will deposit the oversizing recovery charge payments for constructed EDUs benefitted by the Developer-Installed Facility in the "Reimbursement Account" established pursuant to the Mandarina Development Agreement and will reimburse the Developer in accordance with the "Reimbursement Payments" provision of the Mandarina Development Agreement. 1.8.3. The Developer shall have a beneficial ownership interest in the service area for the Developer-Installed Facility sufficient to prohibit connection in that area unless and until the oversizing recovery charge is paid. 1.8.4. 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. 1.8.5. The number of EDUs subject to the oversizing recovery charge has been calculated assuming the development of 2005 lots on the Subject Property served by five- eighths inch meters, If the actual number of lots and size of meters used to 00073949 DOCX/13 develop the Subject Property results in a different EDU count, the number of EDUs required to pay the oversizing recovery charge shall be adjusted accordingly, based on standard Town equivalency tables and calculations, and the "oversizing recovery charge" set forth in subparagraph 1.8.1 above shall be re-calculated accordingly. 1,8.6. The Parties acknowledge that final construction quantities and amounts will be provided after construction of the Developer Installed-Facility is completed. 1.8/. The Town makes no guarantee that the Developer will receive full reimbursement of the Developer's cost of completing the Work. 2. Engineering and inspection 2.1. Registered civil engineer. The Developer shall employ a registered Civil Engineer to design, 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 inspection authority over the Work. 2.3. inspection provisions, The Developer 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. Inspection 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 the Developer or any contractor. 2.4. Payment of MKT, inspector'c overtime cost, If scheduling by the Developer's contractor reasonably requires the Town's inspector to work overtime, the Developer or Developer's contractor shall pay the Town for any additional salaries, expenses or employee benefits relating to the overtime. 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. 3. Preconstruction Procedure 3.1. Request to begin construction. The Developer shall submit a written request to begin construction 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 returned 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 he commenced and carried on at such points and in such order as may be directed by the Town, 0007399..LXXX/14 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 removed from the site. 3.6. Permits and approvals, The Developer shall, at Developer'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. Town permit fees for the Work are waived pursuant to the Mandarina Development Agreement. 4. Construction 4.1. Developer's presence on site. The Developer, or Developer's designated agent, shall be present at all times during performance of the Work. The name of the Developer'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 Developer. 4.2. competence and diligence. The Developer shall employ only competent and efficient laborers, mechanics or artisans on the Work, and the Developer agrees to perform diligently to complete the Work on or before the completion date given in the notice to proceed 4.3. Alterations to the existing Town sewer system. The Developer shall, at Developer's expense, make any and all alterations to the existing sewer system either on-site or off-site necessitated by paving, drainage, or other improvements caused by the development of the Subject Property. 4.4. Worksite safety. The Developer 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 Developer 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 Transfer of the Developer-Installed Facility to the Ion. Upon the Town's final acceptance of the Work. the Developer shall at no cost grant, bargain, sell, conveytransfer and deliver to the Town the Developer-Installed Facility free and clear of all liens, claims, charges or encumbrances. 5.2. One-year warranty. The Developer 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 acceptance of the Work 5.3. Other conflicting construction prohibited. The Developer shall not construct or allow the construction of any utility, structure, building, or other improvement that would interfere with the operation or maintenance of the Developer-Installed Facility. 00073999,EXXX/15 5.4. Developer's obligation to maintain finished grade. The Developer guarantees that all service lines and other sewer facilities on the Subject Property will be to finished grade and that Developer 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 Developer-Installed Facility when the Work has been completed to the satisfaction of the Town, Subject to the Developer's continuing obligations under this Agreement. the Town shall operate and service the Developer-Installed Facility after taking over possession of it under this paragraph. 6. Miscellaneous 6.1. Indemnity. Developer 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 the Developer 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 Developer-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 assignment. The Developer may not assign this Agreement without the prior written consent of the Town. 6.4. Cancellation fbr conflict of interest. This Agreement is subject to A R S 38- 511, which provides for cancellation in certain instances involving conflict of interest [Signature page follows.] 00073099ixx-x/16 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last date set forth below their respective signatures. THE"TOWN": THE"DEVELOPER": TOWN OF MARANA, MANDARINA H. DINGS, LLC, an Arizona municipal corporation an zo 1 a Ii itet iability company By. By:44........_ , __,.. _ .......A _ Ed Flonea, Mayor ad ., , H .. , 11:':ge7r Date: Date. I.— 9— 2- - 2- ATTEST. Cherry L Lawson, Town Clerk APPROVED AS TO FORM: Jane Fairall, Town Attorney STATE OF ARIZONA ) )ss County of Maricopa ) The foregoing instrument was acknowledged before me on January 15, 2021 by Karl N. Huish, the Manager of MANDARINA HOLDINGS, LLC, an Arizona limited liability company(the"Developer-), on its behalf (Seal) , ,1 i divu i HANNAH JUNE MARTIN Notary Public ki.' A , • i Common Number 583950 Expires:June 6,2024 Manoopa County (X073999.1)0CX/17