HomeMy WebLinkAbout05/16/2007 Council Agenda Packet
COUNCIL MEETING NOTICE AND AGENDA
Council Chambers
11555 W. Civic Center Drive, Marana, Arizona 85653
May 16,2007, at or after 7:00 p.m.
Ed Honea, Mayor
Herb Kai, Vice Mayor
Council Members
Bob Allen
Jim Blake
Patti Comerford
Tim Escobedo
Carol McGorray
ACTION MAY BE TAKEN BY THE COUNCIL ON ANY ITEM LISTED ON THIS AGENDA. Revisions to the
agenda can occur up to 24 hours prior to the meeting. Revised agenda items appear in italics.
AS A COURTESY TO OTHERS. PLEASE TURN OFF OR PUT IN SILENT MODE ALL PAGERS
AND CELL PHONES.
Welcome to this Marana Council meeting. Regular Council meetings are usually held the first and third
Tuesday of each month at 7:00 p.m. at the Marana Town Hall, although the date or time may change, or
Special Meetings may be called at other times and/or places. Contact Town Hall or watch for posted
agendas for other meetings. This agenda may be revised up to 24 hours prior to the meeting. In such a
case a new agenda will be posted in place of this agenda.
If you are interested in speaking to the Council during Call to the Public, Public Hearings, or other agenda
items, you must fill out a speaker card (located in the lobby outside the Council Chambers) and deliver it
to the Town Clerk prior to the convening of the meeting.
All persons attending the Council meeting, whether speaking to the Councilor not, are expected to
observe the Council Rules, as well as the rules of politeness, propriety, decorum and good conduct. Any
person interfering with the meeting in any way, or acting rudely or loudly will be removed from the
meeting and will not be allowed to return.
To better serve the citizens of Marana and others attending our meetings, the Council Chambers are
wheelchair and handicapped accessible. Any person who, by reason of any disability, is in need of
special services as a result of their disability, such as assistive listening devices, agenda materials printed
in Braille or large print, a signer for the hearing impaired, etc., will be accommodated. Such special
services are available upon prior request to the Town Clerk at least 10 working days prior to the Council
meeting.
Copies of the agenda are available the day of the meeting in the lobby outside the Council Chambers or
online at www.marana.com. by linking to the Town Clerk page under Agendas, Minutes and Ordinances.
For questions about the Council meetings, special services or procedures, please contact the Town Clerk,
at 382-1999, Monday through Friday from 8:00 a.m. to 5:00 p.m.
Posted no later than May 15, 2007, 7:00 p.m., at the Marana Municipal Complex, the Marana Operations
Center and at www.marana.com under Town Clerk, Agendas, Minutes and Ordinances.
COUNCIL MEETING NOTICE AND AGENDA
Council Chambers
11555 W. Civic Center Drive, Marana, Arizona 85653
May 16, 2007, at or after 7:00 p.m.
REGULAR MEETING
A. CALL TO ORDER AND ROLL CALL
B. PLEDGE OF ALLEGIANCE AND INVOCATIONIMOMENT OF SILENCE
C. APPROVAL OF AGENDA
D. CALL TO THE PUBLIC
At this time any member of the public is allowed to address the Town Council on any
issue not already on tonight's agenda. The speaker may have up to three minutes to
speak. Any persons wishing to address the Council must complete a speaker card
located outside the Council Chambers and deliver it to the Town Clerk prior to the
commencement of the meeting. Pursuant to the Arizona Open Meeting Law, at the
conclusion of Call to the Public, individual members of the council may respond to
criticism made by those who have addressed the Council, may ask staff to review the
matter, or may ask that the matter be placed on a future agenda.
E. PRESENTATIONS - General Plan Update (Kevin Kish/Paul Popelka)
ANNOUNCEMENTSmPDATES
PROCLAMATIONS - Public Works Proclamation
F. MAYOR AND COUNCIL REPORTS: SUMMARY OF CURRENT EVENTS
G. MANAGER'S REPORT: SUMMARY OF CURRENT EVENTS
H. ST AFFREPORTS
GENERAL ORDER OF BUSINESS
I. CONSENT AGENDA
The Consent Agenda contains items requiring action by the Council which are generally routine
items not requiring Council discussion. A single motion will approve all items on the Consent
agenda, including any resolutions or ordinances. A Council Member may remove any issue from
the Consent agenda, and that issue will be discussed and voted upon separately, immediately
following the Consent agenda.
1. Resolution No. 2007-74: Relating to Development; approving and
authorizing a fmal plat for The Pines Phase II (Kevin Kish)
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COUNCIL MEETING NOTICE AND AGENDA
Council Chambers
11555 W. Civic Center Drive, Marana, Arizona 85653
May 16,2007, at or after 7:00 p.m.
2. Resolution No. 2007-75: Relating to Development; approving and
authorizing a fmal block plat for Gladden Farms Blocks 26-43 (Kevin Kish)
3. Resolution No. 2007-76: Relating to the Marana Regional Airport;
approving and authorizing a contract with Sundt Construction, Inc. for the
Construction Manager at Risk design phase services for the construction of a
new sewer line for the Marana Regional Airport (Charles Mangum)
4. Resolution No. 2007-77: Relating to the Marana Regional Airport;
approving and authorizing a contract with Sundt Construction, Inc. for the
Construction Manager at Risk design phase services for the construction of a
new fire protection water line for the Marana Regional Airport (Charles
Mangum)
5. Resolution No. 2007-78: Relating to the Marana Regional Airport;
approving and authorizing a contract with Sundt Construction, Inc. for the
Construction Manager at Risk design phase services for the construction of a
new airport terminal for the Marana Regional Airport (Charles Mangum)
6. Resolution No. 2007-79: Relating to the Marana Regional Airport;
approving and authorizing a contract with Carter & Burgess, Inc. for the
design of a new public airport terminal for the Marana Regional Airport
(Charles Mangum)
7. Resolution No. 2007-80: Relating to Public Works; approving and
authorizing the execution of an intergovernmental agreement between Pima
County and the Town of Marana to provide for the acquisition of property
for the I-I0/Twin Peaks traffic interchange (Cedric Hay)
8. Minutes of the April 24, 2007 and May 3, 2007 study sessions and the May 1,
2007 regular meeting.
J. COUNCIL ACTION
1. Resolution No. 2007-81: Relating to Utilities; approving and authorizing the
Utilities Director to execute a contract with the United States Department of
Energy, Western area Power Administration, for Parker-Davis Project
Electric Service (Frank Cassidy)
2. Resolution No. 2007-82: Relating to Development; approving and
authorizing the Mayor to execute the Cascada Development Agreement
(Frank Cassidy)
3. Resolution No. 2007-83: Relating to Development; approving and
authorizing a preliminary plat for Marana 59 (Kevin Kish)
COUNCIL MEETING NOTICE AND AGENDA
Council Chambers
11555 W. Civic Center Drive, Marana, Arizona 85653
May 16, 2007, at or after 7:00 p.m.
4. Resolution No. 2007-84: Relating to Real Estate; establishing the Learning
Farm; approving and authorizing the Mayor to execute a lease and use
agreement with the Community Food Bank relating to the Learning Farm;
and declaring an emergency (Jane Fairall)
K. BOARDS, COMMISSIONS AND COMMITTEES
L. ITEMS FOR DISCUSSION/POSSIBLE ACTION
1. State Lel!islative Issues: DiscussionlDirection/Action regarding all
pending bills before the Legislature. (Mike Reuwsaat)
M. EXECUTIVE SESSIONS
Executive Session pursuant to A.R.S. ~38-431.03 (A)(3), Council may ask
for discussion or consultation for legal advice with the Town Attorney
concerning any matter listed on this agenda.
N. FUTURE AGENDA ITEMS
Notwithstanding the mayor's discretion of what items to place on the
agenda, if three or more council members request an item to be placed on
the agenda, it must be placed upon the agenda for the second regular
town council meeting after the date of the request (Marana Town Code,
Title 2, Chapter 2-4, Section 2-4-2 B)
O. ADJOURNMENT
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PR()CLI1KI1T1()1!
WHEREAS, Public Works services provided in the Marana community are an
integral part of the lives of our citizens and enhance their daily quality of life; and
WHEREAS, the Marana Department of Public Works is committed to providing
and maintaining consistently reliable, safe and efficient public facilities delivered
by dedicated, respectful and ethical personnel; and
WHEREAS, the quality and effectiveness of these facilities as well as their
design, construction and maintenance is vitally dependent upon the efforts and
skills of public works officials and employees; and
WHEREAS, the positive attitude of the staff from all Public Works departments is
influenced by their understanding of the critical nature of the work they perform.
NOW, THEREFORE, the Mayor and Council of the Town of Marana, Arizona, do
hereby proclaim
!fOf 2o-2~ 2007
PUBLIC /I/()Rttcf /l/EEtt
in the Town of Marana, and call upon all citizens and civic organizations to
acquaint themselves with the issues involved in supporting public works
organizations. Further, that they recognize the valuable contributions which
public works professionals make to provide the infrastructure required to sustain
the comfort, health, and well-being to support the community's quality of life.
Dated this 16th day of May, 2007.
tR I-I~~
Mayor Ed Honea
ATTEST:
Jocelyn C. Bronson, Town Clerk
Public Works Operations & Maint.Water i ,Parks & Recreation
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Barbra BOl:lrn_~_J] DenJ11s DolCin Jason Hensha.Yv' , I ._ _____ .,
Keith Brann . Art Escamilla Sal Madrid 'Elizabeth Castro
13had Bustam~n~1Keithfranas:: Meaders ~ Donna Chambers
~ana camp_____jc()()kie ~~II~gos ,__rv1ich_Ci_~-bsbor_ne___-r Tere_~-Davna:.Gutie!!~~
Jennif~!.fhristeII'llCiIl' Robert_<3rirn~.sJ<>-_ !;Fr~d_B()_rll~!<>--___. L~J1a Dayton___ .,........
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James Flores . I Branden Henry JA W-'u._!lsl.ital'nm-wVeablesnt-eCr-ia,_.,.-~-. -. '.t'" KL. er.__iaS, . lAY. -n[)niaDz_-()Trr'ea.'lhan
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Dan G~()~eclose._ [iMike Menc;ill9.e!_ Tom EI!i~__
1:3~.Il... Higgil'ls _ ___J_am~s Mill~~ ~Ildrea fl()od
Tom Houle Steve Monson ,Tina Gerstner
BarbaraJohnson - i: Michaef-Nitka -- I : T om~-Gonzafes
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Scott Leska " Brady Parks________ .. __ . 'T amrny Haley
Corby Lust----- -~~ George-Pesina, Jr. ! Alexis Haskins
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Howard Myers "Marcel Rodriguez . I Louise Hull
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_Morris _Beyna .m m_ . 'JosElf T()!res , ! Rafael Magallanes
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Kurt Schmidt _=*---~___ ~--- -_________~.rb f\JC3dl~-----~_
Aar()nSuko ____ ,I _ _ _ ,,vickLe,Nissen
Michelle White _ ~srael 'paredes
_ _ MC3rilyn Payto..ll.
~nny Powell__
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Olivia Salazar
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Iti3_lTlrny~~ev_ens
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Charlie Villescaz
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, Jen Ward
THE FOLLOWING STAFF
REPORTS ARE ATTACHED TO THE
COUNCIL PACKET
0 Building 0 Planning
0 Court 0 Police
0 Finance 0 Public Works
0 Human Resources 0 Town Clerk
0 Marana Chamber of ~ Water
Commerce
0 Parks & Recreation 0 Other
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TOWN COUNCIL
MEETING
INFORMATION
MEETING DATE:
TOWN OF MARANA
May 16, 2007
AGENDA ITEM:
1.1
TO: MAYOR AND COUNCIL
FROM: Kevin Kish, AICP, Planning Director
SUBJECT: Resolution No. 2007-74: Relating to Development; approving and
authorizing a fmal plat for The Pines Phase II.
DISCUSSION
ReQuest
The applicant requests final plat approval of a 265-lot single family residential subdivision. The
proposed final plat is a partial re-subdivision of Blocks 1 and 3 of the Marana Golf Final Block
Plat.
Location
The property is generally located north of Arizona Pavilions Drive, west of 1-10 Frontage Road
and east ofthe Santa Cruz River.
Zonin2
The Continental Ranch Specific Plan designates the property as "MHD" (Medium High Density
Residential), which allows single family attached or detached dwellings with minimum 3,000
square lot sizes. The final plat proposes a minimum lot size of 3,010 square feet and an average
lot size of 4,749 square feet.
Transportation
The subdivision will be served by one point of access off of Continental Links Drive and one off
of the 1-10 eastbound frontage road of which points are gated. The internal circulation contains
private streets with on street parking limited to one side of the street. A street standards waiver
was granted for reduction of pavement through the Pines Phase II specific plan amendment (Ord.
# 2005.19).
Park ReQuirements. Trail Connectivity and Benefit Fee Area
The minimum active on-site recreation facilities required for the subdivision is 1.19 acres and the
plan provides 1.28 acres. The subdivision proposes two separate recreational facilities that
include the following amenities: a community pool, a play structure, ramadas, and turf areas.
A development agreement was approved for the Marana Golf final plat of which a condition
stated that no future park impact fees shall be assessed for the property based upon the
improvements completed along the Santa Cruz River pathway. The subdivision remains subject
to the South Marana Transportation impact fees.
ATTACHMENTS
051607 The Pines 11 FP TC.doc
Location map and plat reduction.
RECOMMENDATION
Staff has reviewed the application for compliance with the Continental Ranch Specific Plan,
Marana Land Development Code and the Marana General Plan. This final plat is in
conformance with all required development regulations and conditions of zoning. Staff
recommends approval of a final plat for The Pines Phase II.
SUGGESTED MOTION
I move to approve Resolution No. 2007-74.
-2-
051607 The Pines 11 FP TC.doc
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MARANA RESOLUTION NO. 2007-74
RELATING TO DEVELOPMENT; APPROVING AND AUTHORIZING A FINAL PLAT
FOR THE PINES PHASE II.
WHEREAS, Title Security of Arizona, Trust 969, the owner of The Pines Phase II, has
applied for approval of a Final plat for an 265-lot single-family home subdivision on 55.7 acres,
including lots 1 through 265 and common areas "A" "B" and "C", and is generally located north
of Arizona Pavilions Drive, west ofI-tO Frontage Road and east of the Santa Cruz River within a portion
of Sections 26 and 27, Township 12 south, Range 12 east; and
WHEREAS, the Marana Town Council, at their regular meeting on May 16, 2007,
determined that the The Pines Phase II final plat should be approved.
NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the Town of
Marana, Arizona, that The Pines Phase II final plat is hereby approved.
PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona,
this 16th day of May, 2007.
ATTEST:
Ed Honea, Mayor
Jocelyn C. Bronson
Town Clerk
APPROVED AS TO FORM:
Frank Cassidy, Town Attorney
Marana Resolution No. 2007-74
TOWN COUNCIL
MEETING
INFORMATION
TOWN OF MARANA
MEETING DATE:
May 16, 2007
AGENDA ITEM:
1.2
TO: MAYOR AND COUNCIL
FROM: Kevin Kish, AICP, Planning Director
SUBJECT: Resolution No. 2007-75: Relating to Development; approving and
authorizing a fmal block plat for Gladden Farms Blocks 26-43.
DISCUSSION
Request and Historv
The applicant is requesting approval of a final block plat encompassing the entire Gladden Farms
II Specific Plan with the exception of Block 44 which is the old Gladden home along Moore
Road. The block plat consists of six blocks of single family residential, seven blocks of high
density residential, one block oftransitional, four blocks of commercial and one block for a park
site. The final block plat is approximately 603.9 acres and generally located east of the existing
Gladden Farms development, south of Moore Road and north of the future Tangerine Farms
Road in Section 35 of Township 11 South, Range 11 East.
The Town Council approved a rezoning to zone "F" specific plan creating the Gladden Farms II
Specific Plan on March 7, 2006 by Ordinance 2006.03. The Town of Marana subsequently
entered into a development agreement with the developer by Resolution 2006-38. The specific
plan and the development agreement were amended on December 20, 2006 by Ordinance
2006.35 and Resolution 2006-218. The preliminary block plat was approved by the Town
Council on February 20,2007.
Proposed Use
The site is located within the Northwest Marana Area Plan and is subject to the requirements
approved in the plan. The land use designations within the block plat provide mix of residential,
commercial and transitional blocks. The residential designations provide a range of lot sizes for
single-family homes to high density, while the transitional designation allows for a mix of
residential and commercial uses within the same development.
The project has a maximum number of 2,345 dwelling units per the Gladden Farms II
Development Agreement.
The proposed Gladden Farms II block plat follows the specific plan, locating the higher intensity
uses along the east side of the project adjacent to possible future commercial development and
locating the less intense uses toward the west where similar residential densities currently exist.
Access and Circulation
Direct access to the project will be provided from Tangerine Farms Road to the south and Moore
Road to the north. Clark Farms Blvd. will provide a direct connection between the two with
05167 PRV-06073 Gladden Farms 26-43 Block FP TC.doc
additional internal circulation provided by Mike Etter Blvd, Pacheco Farms Road, Midfield Road
and Mayville Loop. The required right-of-way for Tangerine Farms Road has been dedicated.
The required rights-of-way for Moore Road, Mike Etter Blvd., Pacheco Farms Road, Midfield
Road and Mayville Loop will be dedicated by this final block plat. This final block plat will also
dedicate all of the needed right-of-way for Clark Farms Blvd. that falls within the boundaries of
this plat. The remaining needed right-of-way east of this project will be dedicated by Westcor
via separate instrument. The developer is required to pay the applicable arterial roadway
development impact fee per the amended Development Agreement, payable at building permit
Issuance.
Parks and Recreation
Block 32 of this plat is an 8.4 acre private park that will be for the use of Gladden Farms and
Gladden Farms II residents. Each residential block with the exception of blocks 31 and 33 will
be required to provide on-site parks per the requirements of the land development code. The
developer will pay the applicable park development impact fee per the amended Development
Agreement, payable at building permit issuance.
The development of this area will provide approximately 72 acres of open space within
landscaped pedestrian areas that will connect the entire development very similarly to the paseo
system in the original Gladden Farms development.
Santa Cruz River Bank Protection
In compliance with Town Ordinance No. 99.02, the Developer shall pay $500.00 per acre of
affected property for bank protection. The total obligation of the Developer for Gladden Farms
II is $316, 640. This amounts to $18,625.88 per block, excluding the park site on Block 32.
Each residential or commercial subdivision plat will be required to pay their total obligation prior
to release of assurances for that block. Within blocks that are not subdivided and a development
plan is the only process, the obligation for those blocks will be paid prior to development plan
approval.
Schools
Per the development agreement, the developer has agreed to contribute to a "School
Improvement Contribution Fee" at a rate of $1,200 per residential unit, payable at building
permit issuance.
Conclusion
Staff has reviewed the request against the requirements of the Marana Land Development Code,
the rezoning conditions of Ordinance 2006.03 and 2006.35 and the Development Agreement of
Resolution 2006-38 and 2006-218. There are a few minor outstanding issues from outside
agencies and Town staff. This final block plat will be in conformance with all required
development regulations prior to this plat being signed and recorded.
ATTACHMENTS
Summary application, location map and plat reduction.
05167 PRV-06073 Gladden Farms 26-43 Block FP TC.doc
RECOMMENDATION
Staff recommends conditional approval ofthis final block plat.
RECOMMENDED CONDITION OF APPROVAL
The final block plat shall acceptably address all outstanding issues prior to the mylar being
signed and recorded.
SUGGESTED MOTION
I move to adopt Resolution No. 2007-75.
05167 PRV-06073 Gladden Farms 26-43 Block FP TC.doc
MARANA RESOLUTION NO. 2007-75
RELATING TO DEVELOPMENT; APPROVING AND AUTHORIZING A FINAL
BLOCK PLAT FOR GLADDEN FARMS BLOCKS 26-43.
WHEREAS, FC M Gladden II LLC, the owner of Gladden Farms Blocks 26-43, has
applied for approval of a final block plat on 603.9 acres, including Blocks 26 through 43, and is
generally located east of the existing Gladden Farms development, south of Moore Road and
north of the future Tangerine Farms Road within Section 35 of Township 11 South, Range 11
East; and
WHEREAS, the Town of Marana approved and adopted the specific plan for the area
known as the Gladden Farms II Specific Plan on March 7, 2006 (Ordinance 2006.03), and
approved the amendment to the Specific Plan on December 20, 2006 (Ordinance 2006.35)
located within the corporate boundaries of the Town of Marana, Arizona; and
WHEREAS, this plat is to be located within the land comprising the Gladden Farms II
Specific Plan with the exception of Block 44 as identified within the Specific Plan; and
WHEREAS, the Town Council, at their regular meeting on May 16, 2007, has determined
that the Gladden Farms Blocks 26-43 Final Block Plat should be approved.
NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the Town of
Marana, Arizona, that the Gladden Farms Blocks 26-43 Final Block Plat within the Gladden
Farms II Specific Plan and generally located east of the existing Gladden Farms development,
south of Moore Road and north of the future Tangerine Farms Road within Section 35 of
Township 11 South, Range 11 East is hereby approved with the following condition:
1. The final block plat shall acceptably address all outstanding issues prior to the mylar
being signed and recorded.
PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona,
this 16th day of May, 2007.
ATTEST:
Mayor Ed Honea
Jocelyn C. Bronson, Town Clerk
APPROVED AS TO FORM:
Frank Cassidy, Town Attorney
Marana Resolution No. 2007-75
TOWN COUNCIL
MEETING
INFORMATION
TOWN OF MARANA
MEETING DATE:
May 16, 2007
AGENDA ITEM:
1.3
TO: MAYOR AND COUNCIL
FROM: Charles E. Mangum, Airport Director
AGENDA TITLE: Resolution No. 2007-76: Relating to the Marana Regional Airport;
approving and authorizing a contract with Sundt Construction,
Inc. for the Construction Manager at Risk design phase services
for the construction of a new sewer line for the Marana Regional
Airport.
DISCUSSION
The Town of Marana has received $2.8 Million from Pima County Revenue Bonds to fund the
design and construction of a sewer line to the Marana Regional Airport. The Town of Marana is
responsible for the design, construction and management ofthis project. The Town of Marana is
reimbursed monthly by Pima County for all project expenses. The design ofthis project is being
completed by Carter & Burgess Inc. and Sundt Construction has been selected as the
Construction Manager at Risk (CMAR) for this project.
The attached contract for $69,981 is to compensate Sundt Construction for preconstruction phase
services (Article 4.1.1 - Compensation; page 9 of24). Some of the major preconstruction phase
services Sundt will provide under this contract include: selection and recommendation of
materials; recommendations on construction feasibility; time requirements for procurement,
installation and construction completion; factors related to construction cost including estimates
of alternative designs or materials; and project schedules and cost estimates. As design proceeds,
the project schedules and cost estimates will be updated leading to the submittal of a Guaranteed
Maximum Price proposal for the construction of the sewer line (Exhibit D). The final
Guaranteed Maximum Price (GMP) proposal for construction of the sewer line will be presented
to Town Council for approval.
The standard American Institute of Architects (AlA) Document A121 & and the Associated
General Contractors of America (AGC) Document 565 was used as the standard form for the
contract agreement. AlA copyright and use permit requires all added language to be put in bold
and any original contract language that is deleted to be stricken out but still shown in the final
contract.
Airport Sewer Line
5/16/07
ATTACHMENTS
Preliminary map of sewer line alignment; the Contract with Sundt Construction is available for
viewing in the Town Clerk's office.
RECOMMENDATION
Staff recommends Town Council adopt Resolution No. 2007-76.
SUGGESTED MOTION
I move to approve Resolution No. 2007-76.
-2-
MARANA RESOLUTION NO. 2007-76
RELATING TO MARANA REGIONAL AIRPORT; APPROVING AND AUTHORIZING A
CONTRACT WITH SUNDT CONSTRUCTION, INC. FOR THE CONSTRUCTION
MANAGER AT RISK DESIGN PHASE SERVICES FOR THE CONSTRUCTION OF A NEW
SEWER LINE FOR THE MARANA REGIONAL AIRPORT.
WHEREAS the Mayor and Council find that the terms and conditions of the contract with
Sundt Construction Inc. 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 contract between the Town of Marana and Sundt
Construction Inc. attached to and incorporated by this reference in this resolution as Exhibit A is
hereby approved, and the Town Manager is hereby authorized to execute it for and on behalf of
the Town of Marana.
BE IT FURTHER RESOLVED that 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 aforementioned contract.
PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF
MARANA, ARIZONA, this 16th day of May, 2007.
Mayor Ed Honea
ATTEST:
Jocelyn C. Bronson, Town Clerk
APPROVED AS TO FORM:
Frank Cassidy, Town Attorney
-...------
AlA DOCUMENT A I 21/CMc AND AGC DOCUMENT 565
STANDARD FORM OF AGREEMENT BETWEEN
OWNER AND CONSTRUCTION MANAGER
where the Construction Manager is also
THE CONTRACTOR
1991 EDITION
The 1997 Edition of AlA Document 201, General Conditions of the Contract for Construction, is referred to herein.
AGREEMENT
made as of the 22nd day of March in the year of 2007
BETWEEN the Owner:
Town of Marana, an Arizona Municipal Corporation
11700 W. Avra Valley Road, #91
Marana, Arizona 85653
and the Construction Manager:
Sundt Construction, Inc.
1501 W. Fountainhead Parkway, Suite 600 (85282)
P.O. Box 25346
Tempe, Arizona 85285
The Project is:
The construction of a new Sewer line for the Marana Regional Airport
The Architect is:
Carter Burgess
101 North First Ave., Suite 3100
Phoenix, Arizona 85003
The Owner and Construction Manager agree as set forth below.
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ARTICLE 1
GENERAL PROVISIONS
1.1 RELATIONSHIP OF PARTIES
The Construction Manager accepts the relationship of trust and confidence established with the Owner by this Agreement, and
covenants with the Owner to furnish the Construction Manager's reasonable skill and judgment and to cooperate with the
Architect in furthering the interests of the Owner. The Construction Manager shall furnish construction administration and
management services and use the Construction Manager's best efforts to perform the Project in an expeditious and
economical manner consistent with interests of the Owner. The Owner shall endeavor to promote harmony and cooperation
among the Owner, Architect, Construction Manager and other persons or entities employed by the Owner for the Project. All
references to Architect shall also mean CONSULTANT.
] .2 GENERAL CONDITIONS
For the Construction Phase, the General Conditions of the Contract shall be the ] 997 Edition of AlA Document A20] ,
General Conditions of the Contract for Construction, which is incorporated herein by reference as modified (Exhibit A). For
the Preconstruction Phase, or in the event that the Preconstruction and Construction Phases proceed concurrently, AlA
Document A20l as modified shall apply to the Preconstruction Phase only as specifically provided in this Agreement. The
term "Contractor" as used in AlA Document A20] shall mean the Construction Manager.
ARTICLE 2
CONSTRUCTION MANAGER'S RESPONSIBILITIES
The Construction Manager shall perform the services described in this Article. The services to be provided under Paragraphs
2.1 and 2.2 constitute the Preconstruction Phase services. If the Owner and Construction Manager agree, after consultation
with the Architect, the Construction Phase may commence before the Preconstruction Phase is completed, in which case both
phases shall proceed concurrently.
2.1 PRECONSTRUCTlON PHASE
2.].] PRELIMINARY EVALUATION
The Construction Manager shall provide a preliminary evaluation of the Owner's program and Project budget requirements,
each in terms of the other.
2.] .2 CONSULTATION
The Construction Manager shall jointly schedule and attend regular meetings with the Owner and Architect, including a 3-5
day workshop. The Construction Manager shall consult with the Owner and Architect regarding site use and improvements,
and the selection of materials, building systems and equipment. The Construction Manager shall provide recommendations
on construction feasibility; actions designed to minimize adverse effects of labor or material shortages, time requirements for
procurement, installation and construction completion; and factors related to construction cost including estimates of
alternative designs or materials, preliminary budgets and possible economies.
2.].3 PRELIMINARY PROJECT SCHEDULE
When Project requirements described in Subparagraph 3.].] have been sufficiently identified, the Construction Manager shall
prepare, and periodically update, a preliminary Project schedule for the Architect's review and the Owner's approval. The
Construction Manager shall obtain the Architect's approval of the portion of the preliminary Project schedule relating to the
performance of the Architect's services. The Construction Manager shall coordinate and integrate the preliminary Project
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schedule with the services and activities of the Owner, Architect and Construction Manager. As design proceeds, the
preliminary Project schedule shall be updated to indicate proposed activity sequences and durations, milestone dates for
receipt and approval of pertinent information, submittal of a Guaranteed Maximum Price proposal, preparation and
processing of shop drawings and samples, delivery of materials or equipment requiring long-lead time procurement, Owner's
occupancy requirements showing portions of the Project having occupancy priority, and proposed date of Substantial
Completion. If preliminary Project schedule update indicate the previously approved schedules may not be met, the
Construction Manager shall make appropriate recommendations to the Owner and Architect.
2.1.4 PHASED CONSTRUCTION
The Construction Manager shall make recommendations to the Owner and Architect regarding the phased issuance of
Drawings and Specifications to facilitate phased construction of the Work, if such phased construction is appropriate for the
Project, taking into consideration such factors as economies, time of performance, availability of labor and materials, and
provisions for temporary facilities.
2.1.5 PRELIMINARY COST ESTIMATES
2.1.5.1 When the Owner has sufficiently identified the Project requirements and the Architect has prepared other basic design
criteria or 30% drawings, the Construction Manager shall prepare for the review of the Architect and approval of the Owner,
a preliminary cost estimate utilizing area, volume or similar conceptual estimating techniques.
2.1.5.2 When Schematic Design Documents or 60% drawings, have been prepared by the Architect and approved by the
Owner, the Construction Manager shall prepare for the review of the Architect and approval of the Owner, a more detailed
estimate with supporting data. During the preparation of the Design Development Documents, the Construction Manager
shall update and refine this estimate at appropriate intervals agreed to by the Owner, Architect and Construction Manager.
2.1.5.3 When Design Development Documents or 90% drawings, have been prepared by the Architect and approved by the
Owner, the Construction Manager shall prepare a detailed estimate with supporting data for review by the Architect and
approval by the Owner. During the preparation of the Construction Documents, the Construction Manager shall update and
refine this estimate at appropriate intervals agreed to by the Owner, Architect and Construction Manager.
2.1.5.4 If any estimate submitted to the Owner exceeds previously approved estimates or the Owner's budget, the
Construction Manager shall make appropriate recommendations to the Owner and Architect.
2.1.6 SUBCONTRACTORS AND SUPPLIERS
The Construction Manager shall submit its Subcontractor Procurement Plan (SPP) to the Owner for review. The SPP
shall utilize a qualifications based procurement and selection process conforming to ARS Title 34 requirements. The
Construciton Manager shall seek to develop subcontractor interest in the Project and shall furnish to the Owner and
Architect for their review and comment a list of prequalified possible subcontractors, including suppliers who are to furnish
materials or equipment fabricated to a special design, from whom proposals will be requested for each principal portion of the
Work. The Owner will promptly reply in writing to the Construction Manager if either the Architect or Owner know of any
objection to such subcontractor or supplier. The receipt of such list shall not require the Owner or Architect to investigate the
qualifications of proposed subcontractors or suppliers, nor shall it waive the right of the Owner or Architect later to object to
or reject any proposed subcontractor or supplier. The Construction Manager shall maintain primary responsibility for
prequalifying subcontractors, vendors and other personnel providing goods or services through the SPP, including
confirming the basis and statements of qualification and shall maintain primary responsibility for subcontractor
performance in providing goods and services to the Project in a safe, effective, efficient, and timely manner.
2.1.7 LONG-LEAD TIME ITEMS
The Construction Manager shall recommend to the Owner and Architect a schedule for procurement of long-lead time items
which will constitute part of the Work as required to meet the Project schedule. If such long-lead time items are procured by
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the Owner, the Construction Manager shall participate and assist the Owner in the procurement process and such
items shall be procured on terms and conditions acceptable to the Construction Manager. Upon the Owner's acceptance of
the Construction Manager's Guaranteed Maximum Price proposal, all contracts for such items shall be assigned by the Owner
to the Construction Manager, who shall accept responsibility for such items as if procured by the Construction Manager. The
Construction Manager shall expedite the delivery of long-lead time items.
2.1.8 EXTENT OF RESPONSIBILITY
Construction Manager and Town of Marana understand and agree that during the Preconstruction Phase,
Construction Manager will provide its expertise as a contractor to assist the Town of Marana and Design Professional
in the development of the Project, including its expertise regarding constructabiIity, Project cost and budget, value
engineering, and the means, methods, techniques, sequences and procedures for the performance of the work.
The Construction Manager does not warrant or guarantee estimates and schedules except as may be included as part of the
Guaranteed Maximum Price, but shall provide estimates, schedules, and constructabiIity reviews that are reasonably
representative of the Project cost, schedule and other requirements at the time of submitting preliminary or interim
information, including estimates and schedules. The recommendations and advice of the Construction Manager
concerning design alternatives shall be subject to the review and approval of the Owner and the Owner's professional
consultants. It is not the Construction Manager's responsibility to ascertain that the Drawings and Specifications are in
accordance with applicable laws, ordinances, statutes, ordinances, building codes, rules and regulations. However, if the
Construction Manager recognizes that portions of the Drawings and Specifications are at variance therewith, the Construction
Manager shall promptly notify the Architect and Owner in writing.
2.1.9 EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION
The Construction Manager shall comply with applicable laws, regulations and special requirements of the Contract
Documents regarding equal employment opportunity and affirmative action programs.
2.2 GUARANTEED MAXIMUM PRICE PROPOSAL AND CONTRACT TIME
2.2.1 When the Drawings and Specifications are sufficiently complete, the Construction Manager shall propose a Guaranteed
Maximum Price, which shall be the sum of the estimated Cost of the Work and the Construction Manager's Fee.
2.2.2 As the Drawings and Specifications may not be finished at the time the Guaranteed Maximum Price proposal is
prepared, the Construction Manager shall provide in the Guaranteed Maximum Price for further development of the Drawings
and Specifications by the Architect that is consistent with the Contract Documents and reasonably inferable therefrom. Such
further development does not include such things as changes in scope, systems, kinds and quality of materials, finishes or
equipment, all of which, if required, shall be incorporated by Change Order.
2.2.3 The estimated Cost of the Work shall include as a separate and specifically identifiable item the Construction
Manager's contingency, a sum established by the Construction Manager for the Construction Manager's exclusive use to cover
costs arising under Subparagraph 2.2.2 and other costs which are properly reimbursable as Cost of the Work but not the basis
for a Change Order as described in the following paragraph.
The Construction Manager's Contingency is available to the Construction Manager to cover items not otherwise
recoverable by Change Order. All cost associated with the refinement of design details within the Scope of Work and
within the standards of quality and quantity on which the Guaranteed Maximum Price is based, costs due to labor
disputes, costs due to overruns in the performance of work with Construction Manager's own personnel, increase in
bid or negotiated subcontracts or purchase order agreements, labor disputes within manufacturing or transportation
industries causing delays in receipt of materials or equipment not the fault of the Construction Manager, lost time due
to acts beyond the control of the Construction Manager and fixed jobsite costs due to these delays are recoverable
from the Construction Manager's Contingency. The Construction Manager's Contingency is not available for Owner
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increases in allowances, changes in the Scope of Work or design changes. The Construction Manager shall submit to
owner for review all items charged to Construction Managers contingency. The Construction Manager shall keep
track of each item charged to the contingency.
2.2.4 BASIS OF GUARANTEED MAXIMUM PRICE
The Construction Manager shall include with the Guaranteed Maximum Price proposal a written statement of its basis, which
shall include:
.1
.2
A list of Drawings and Specifications, including all addenda thereto and Conditions of the Contract, which
were used in preparation of the Guaranteed Maximum Price proposal.
A list of allowances and a statement of their basis. Owner Contingency, if any, that is included shall be
addressed as an allowance and will require owner's written approval for its use.
A list of the clarifications and assumptions made by the Construction Manager in the preparation of the
Guaranteed Maximum Price proposal to supplement the information contained in the Drawings and
Specifications.
The proposed Guaranteed Maximum Price, including a statement of the estimated cost organized by trade
categories, allowances, contingency, and other items and the fee that comprise the Guaranteed Maximum
Price.
The Date of Substantial Completion upon which the proposed Guaranteed Maximum Price is based, and a
schedule of the Construction Documents issuance dates upon which the date of Substantial Completion is
based.
.3
.4
.5
2.2.5 The Construction Manager shall meet with the Owner and Architect to review the Guaranteed Maximum Price proposal
and the written statement of its basis. In the event that the Owner or Architect discovers any inconsistencies or inaccuracies in
the information presented, they shall promptly notify the Construction Manager, who shall make appropriate adjustments to
the Guaranteed Maximum Price proposal, its basis or both.
2.2.6 Unless the Owner accepts the Guaranteed Maximum Price proposal in writing on or before the date specified in the
proposal for such acceptance and so notifies the Construction Manager, the Guaranteed Maximum Price proposal shall not be
effective without written acceptance by the Construction Manager.
2.2.7 Prior to the Owner's acceptance of the Construction Manager's Guaranteed Maximum Price proposal and issuance of a
Notice to Proceed, the Construction Manager shall not incur any cost to be reimbursed as part of the Cost of the Work, except
as the Owner may specifically authorize in writing.
2.2.8 Upon acceptance by the Owner of the Guaranteed Maximum Price proposal, the Guaranteed Maximum Price and its
basis shall be set forth in Amendment NO.1 (Exhibit D). The Guaranteed Maximum Price shall be subject to additions and
deductions by a change in the Work as provided in the Contract Documents and the date of Substantial Completion shall be
subject to adjustment as provided in the Contract Documents.
2.2.9 The Owner shall authorize and cause the Architect to revise the Drawings and Specifications to the extent necessary to
reflect the agreed-upon assumptions and clarifications contained in Amendment No.1 (Exhibit D). Such revised Drawings
and Specifications shall be furnished to the Construction Manager in accordance with schedules agreed to by the Owner,
Architect and Construction Manager. The Construction Manager shall promptly notify the Architect and Owner if such
revised Drawings and Specifications are inconsistent with the agreed upon assumptions and clarifications.
2.2.10 The Guaranteed Maximum Price shall include in the Cost of the Work only those taxes which are enacted at the time
the Guaranteed Maximum Price is established.
2.3 CONSTRUCTION PHASE
2.3.1 GENERAL
2.3.1.1 The Construction Phase shall commence on the earlier of:
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(1 ) the Owner's written acceptance of the Construction Manager's Guaranteed Maximum Price proposal and
issuance of a Notice to Proceed, or
(2) the Owner's first written authorization to the Construction Manager to perform certain individual items
such as:
(a) award a subcontract, or
(b) undertake construction Work with the Construction Manager's own forces, or
(c) issue a purchase order for materials or equipment required by the Work.
2.3.2 ADMINISTRATION
2.3.2.1 Those portions of the Work that the Construction Manager does not customarily perform with the Construction
Manager's own personnel shall be performed under subcontracts or by other appropriate agreements with the Construction
Manager. The Construction Manager shall obtain bids from Subcontractors and from suppliers for materials or equipment
fabricated to a special design for the Work from the approved list compiled from the qualifications based Subcontractor
Procurement Plan previously reviewed and, after analyzing such bids, shall deliver such bids to the Owner and Architect.
The Owner shall then determine, with the advice of the Construction Manager and subject to the reasonable objection of the
Architect, which bids will be accepted. The Owner may designate specific persons or entities from whom the Construction
Manager shall prequalify and obtain bids; however, if the Guaranteed Maximum Price has been established, the Owner may
not prohibit the Construction Manager from obtaining bids from other qualified bidders. The Construction Manager shall not
be required to contract with anyone to whom the Construction Manager has reasonable objection.
2.3.2.2 If the Guaranteed Maximum Price has been established and a specific bidder among those whose bids are delivered
by the Construction Manager to the Owner and Architect (I) is recommended to Owner by the Construction
Manager; (2) is qualified to perform that portion of the Work; (3) has submitted a bid which conforms to the
requirements of the Contract Documents without reservations or exception, but the Owner requires that another bid
be accepted, then the Construction Manager may require that a change in the Work be issued to adjust Contract Time
and the Guaranteed Maximum Price by the difference between the bid of the person or entity recommended to the
Owner by the Construction Manager and the amount of the subcontract or other agreement actually signed with the
person or entity designated by the Owner. Before the final decision, the Construction Manager shall present the
Owner with a comparative analysis of qualifications, costs, and schedule information.
2.3.2.3 All bids or proposals shall be obtained from those prequalified bidders in accordance with the Subcontractor
Procurement Plan.
2.3.2.4 Subcontracts and agreements with suppliers furnishing materials or equipment fabricated to a special design shall
conform to the payment provisions of Subparagraphs 7.1.8 and 7.1.9 and shall not be awarded on the basis of cost plus a fee
without prior consent of the Owner.
2.3.2.5 The Construction Manager shall schedule and conduct meetings at which the Owner, Architect, Construction
Manager and appropriate Subcontractors can discuss the status of the Work. The Construction Manager shall prepare and
promptly distribute meeting minutes.
2.3.2.6 Promptly after the Owner's acceptance of the Guaranteed Maximum Price proposal, the Construction Manager shall
prepare a schedule in accordance with Paragraph 3.10 of AlA Document A20 I, including the Owner's occupancy
requirements. The Project Schedule shall present activities and events in a logical and sequential manner, with linked
predecessors and successors, indicating relationships, dependencies, restraints, durations and other information as
needed to make the plan meaningful and useful as a tool to set baseline progress schedules for the Project, to monitor
and evaluate the progress of the work against such baseline.
2.3.2.7 The Construction Manager shall provide monthly written reports to the Owner and Architect on the progress of the
entire Work. The Construction Manager shall maintain a daily log containing a record of weather, Construction Manager's
personnel on-site and offsite working on the project, Subcontractors working on the site, total number of workers, major
equipment on site and status of such equipment, materials received, and Work accomplished, problems encountered and
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other similar relevant data as the Owner may reasonably require. The log shall be available to the Owner and Architect.
2.3.2.8 The Construction Manager shall develop a system of cost control for the Work, including regular monitoring of actual
costs for activities in progress and estimates for uncompleted tasks and proposed changes. The Construction Manager shall
identify variances between actual and estimated costs and report the variances to the Owner and Architect at regular intervals.
2.4 PROFESSIONAL SERVICES
The Construction Manager shall not be required to provide professional services which constitute the practice of architecture
or engineering, unless such services are specifically required by the Contract Documents for a portion of the Work or unless
the Construction Manager has specifically agreed in writing to provide such services. In such event, the Construction Manager
shall cause such services to be performed by appropriately licensed professionals.
2.5 UNSAFE MATERIALS
In addition to the provisions of Paragraph 10.1 in AlA Document A20 I, if reasonable precautions will be inadequate to
prevent foreseeable bodily injury or death to persons resulting from a material or substance encountered but not created on the
site by the Construction Manager, the Construction Manager shall, upon recognizing the condition, immediately stop Work in
the affected area and report the condition to the Owner and Architect in writing. The Owner, Construction Manager and
Architect shall then proceed in the same manner described in Subparagraph 10.1.2 of AlA Document A20 I. The Owner shall
be responsible for obtaining the services of a licensed laboratory to verify the presence or absence of the material or substance
reported by the Construction Manager and, in the event such material or substance is found to be present, to verify that it has
been rendered harmless. The Construction manager will advise and facilitate information on qualified firms for
Owner's consideration and selection. Unless otherwise required by the Contract Documents, the Owner shall furnish in
writing to the Construction Manager and Architect the names and qualifications of persons or entities who are to perform tests
verifying the presence or absence of such material or substance or who are to perform the task of removal or safe containment
of such material or substance. The Construction Manager and Architect will promptly reply to the Owner in writing stating
whether or not either has reasonable objection to the persons or entities proposed by the Owner. If either the Construction
Manager or Architect has an objection to a person or entity proposed by the Owner, the Owner shall propose another to whom
the Construction Manager and Architect have no reasonable objection. The Construction Manager will assist the Owner
to mitigate costs and delays to every extent possible.
2.6 CONSTRUCTION MANAGERS DESIGNATED REPRESENT A TIVE
The CM shall designate in writing a representative who shall have express authority to bind the CM with respect to
all matters requiring the CM's approval or authorization. This representative shall have the authority to make
decisions on behalf of the CM concerning estimates and schedules, construction budgets, and changes in the Work,
and shall render such decisions promptly and furnish information expeditiously, so as to avoid unreasonable delay in
the services or Work of the owner. The Construction Manager designates Michael Hill as its authorized
representative.
ARTICLE 3
OWNER'S RESPONSIBILITIES
3.1 INFORM A nON AND SERVICES
3.1.1 The Owner shall provide full information in a timely manner regarding the requirements of the Project, including a
program which sets forth the Owner's objectives, constraints and criteria, including space requirements and relationships,
flexibility and expandability requirements, special equipment and systems, and site requirements.
3.1.2 The Owner, upon written request from the Construction Manager, shall furnish evidence of Project financing prior to
the start of the Construction Phase and from time to time thereafter as the Construction Manager may request in writing.
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Furnishing of such evidence shall be a condition precedent to commencement or continuation of the Work.
3.1.3 The Owner shall establish and update an overall budget for the Project, based on consultation with the Construction
Manager and Architect, which shall include contingencies for changes in the Work and other costs which are the
responsibility of the Owner.
3.1.4 STRUCTURAL AND ENVIRONMENTAL TEST, SURVEYS AND REPORTS
In the Preconstruction Phase, the Owner shall furnish the following with reasonable promptness and at the Owner's expense,
and the Construction Manager shall be entitled to rely upon the accuracy of any such information, reports, surveys, drawings
and tests described in Clauscs Sections 3.1.4.1 through 3.1.4.4 except to thc cxtent that thc Constrl:lction Managcr knov/s of
any inaccuracy. but shall exercise customary precautions relating to the performance of the Work.
3.1.4.1 Reports, surveys, drawings and tests concerning the conditions of the site which are required by law.
3.1.4.2 Surveys describing physical characteristics, legal limitations and utility location for the site of the Project and a
written legal description of the site. The surveys and legal information shall include as applicable, grades and lines of streets,
alleys, pavements and adjoining property and structures; adjacent drainage; rights-of-way, restrictions, easements,
encroachments, zoning, deed restrictions, boundaries and contours of the site; locations, dimensions and necessary data
pertaining to existing buildings, other improvements and trees; and information concerning available utility services and lines,
both public and private, above and below grade, including inverts and depths. All information on the survey shall be
referenced to a project benchmark.
3.1.4.3 The services of geotechnical engineers when such services are requested by the Construction Manager. Such services
may include but are not limited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of
hazardous materials, ground corrosion and resistivity test, including necessary operations for anticipating subsoil condition,
with reports and appropriate professional recommendations.
3.1.4.4 Structural, mechanical, chemical, air and water pollution tests, tests for hazardous materials, and other laboratory and
environmental tests, inspections and reports which are required by law, including required special inspections.
3.1.4.5 The services of other consultants when such services are reasonably required by the scope of the Project and are
requested by the Construction Manager.
3.2 OWNER'S DESIGNATED REPRESENTATIVE
The Owner shall designate in writing a representative who shall have express authority to bind the Owner with respect to all
matters requiring the Owner's approval or authorization. This representative shall have the authority to make decisions on
behalf of the Owner concerning estimates and schedules, construction budgets, and changes in the Work, and shall render
such decisions promptly and furnish information expeditiously, so as to avoid unreasonable delay in the services or Work of
the Construction Manager. The Owner designates Charles Mangum as its authorized representative.
3.3 ARCHITECT
The Owner shall retain the Architect to provide the Basic Services, including normal structural, mechanical and electrical
engineering services, other than cost estimating services, described in the Owner-CONSULTANT Agreement. The Owner
shall authorize and cause the Architect to provide those additional services described in Owner-CONSULTANT
Agreement.. The Owner shall authorize and cause the Architect to provide those Additional Services requested by the
Construction Manager which must necessarily be provided by the Architect for the Preconstruction and Construction Phases
of the Work. Such services shall be provided in accordance with time schedules agreed to by the Owner, Architect and
Construction Manager. Upon request of the Construction Manager, the Owner shall furnish to the Construction Manager a
copy of the Owner's Agreement with the Architect, from which compensation provisions may be deleted.
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3.4
LEGAL REQUIREMENTS
The Owner shall determine and advise the Architect and Construction Manager of any special legal requirements relating
specifically to the Project which differ from those generally applicable to construction in the jurisdiction of the Project. The
Owner shall furnish such legal services as are necessary to provide the information and devices required under Paragraph 3.1.
ARTICLE 4
COMPENSATION AND PAYMENTS FOR PRE CONSTRUCTION PHASE SERVICES
The Owner shall compensate and make payments to the Construction Manager for Preconstruction Phase services as follows:
4.1 COMPENSA TION
4.1.1 For the services described in Paragraphs 2.1 and 2.2 the Construction Manager's compensation shall be calculated as
follows:
Compensation for Preconstruction Phase Services shall consist of:
" The total price for Preconstruction Services is proposed as a Not To Exceed (NTE) amount of
$69,981.00 for actually rendered and billed services (up to NTE amount). Exhibit B provides a
detailed scope of work with associated cost for Preconstruction.
" Proposal is based on completion of the preconstruction Phase Services within five (5) consecutive
months.
" The total price is proposed as a not to exceed amount.
" Preconstruction services beyond fiveS) months will be considered additional services if the not to
exceed amount has been reached. Cost of services is based on the cost buildup billing rate of actual
salary plus direct costs plus indirect costs associated with an individual, and profit, all expressed as a
multiple of actual base salary. Such cost build up of individual billing rates shall be furnished as a
billing rate schedule and attached to this agreement as Exhibit C.
" Construction Manager shall provide with each invoice a statement of personnel by name, position,
and billing rate, task or activity, and hours charged in the invoice period and cumulative to date.
4.1.2 Compensation for Preconstruction Phase services shall be equitably adjusted if such services extend beyond a period of
five (5) consecutive months from the date of this Agreement or if the originally contemplated scope of services is
significantly modified.
4.1.3 Compensation shall be based upon the individual Billing Rates as defined in Exhibit C.
4.2 PAYMENTS
4.2.1 Payments shall be made monthly following presentation of the Construction Manager's invoice and, where applicable,
shall be in proportion to services performed.
4.2.2 Payments are due and payable twenty-one (21) days from the date the Construction Manager's invoice is received by
the Owner. Amounts unpaid after the date on which payment is due shall bear interest at the rate entered below, or in the
absence thereof, at the legal rate prevailing from time to time at the place where the Project is located.
Prime plus one percent (1 %).
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ARTICLE 5
COMPENSA TION FOR CONSTRUCTION PHASE SERVICES
The Owner shall compensate the Construction Manager for Construction Phase services as follows:
5.1 COMPENSA TION
5.1.1 For the Construction Manager's performance of the Work as described in paragraph 2.3, the Owner shall pay the
construction Manager in current funds the Contract Sum consisting of the cost of the Work as defined in Article 7 and the
Construction Manager's Fee determined as follows:
Compensation for Construction phase services shall consist of:
~ Fee of Five and Three Quarters percent (5.75%) of the estimated Cost of the Work. The
Construction Manager's Fee shall become a fixed fee at the time of acceptance of the Guaranteed
Maximum Price by the Owner.
Such fee shall be paid as follows:
In proportionate increments to the monthly Application For Payment submitted (see Article 7).
Compensation for changes in the Work shall consist of:
~ Fee of Five and Three Quarters percent (5.75%) ofthe increased cost of the changes in the Work.
Compensation for trade work performed by Construction Manager's personnel shall consist of:
~ Fee of Fifteen percent (15 %) of the cost ofthe trade work.
5.2 GUARANTEED MAXIMUM PRICE
5.2.1 The sum of the Cost of the Work and the Construction Manager's Fee are guaranteed by the Construction Manager not
to exceed the amount provided in Amendment No.1, subject to additions and deductions by changes in the Work as provided
in the Contract Documents. Such maximum sum as adjusted by approved changes in the Work is referred to in the Contract
Documents as the Guaranteed Maximum Price. Costs which would cause the Guaranteed Maximum Price to be exceeded
shall be paid by the Construction Manager without reimbursement by the Owner.
Upon completion of the project, if the actual Cost of the Work, including fees paid in accordance with Articles 4 and
5, is less than the Guaranteed Maximum Price, as provided and adjusted by Change Orders, all savings shall be:
~ Returned in full to the Owner, One Hundred percent (100%).
5.3 CHANGES IN THE WORK
5.3.1 Adjustments to the Guaranteed Maximum Price on account of changes in the Work subsequent to the execution of
Amendment No. I may be determined by any of the methods listed in Subparagraph 7.3.3 of AlA Document A20 I (Exhibit
A).
5.3.2 In calculating adjustments to subcontracts (except those awarded with the Owner's prior consent on the basis of cost plus
a fee), the terms "cost" and "fee" as used in Clause 7.3.3.3 of AlA Document A201 and the terms "costs" and "a reasonable
allowance for overhead and profit" as used in Subparagraph 7.3.6 of AlA Document A201 shall have the meanings assigned
to them in that document and shall not be modified by this Article 5. Adjustments to subcontracts awarded with the Owner's
prior consent on the basis of cost plus a fee shall be calculated in accordance with the terms of those subcontracts.
5.3.3 In calculating adjustments to the Contract, the terms "cost" and "costs" as used in the above-referenced provisions of
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AlA Document A20 I shall mean the Cost of the Work as defined in Article 6 of this Agreement and the terms" and a
reasonable allowance for overhead and profit" shall mean the Construction Manager's Fee as defined in Subparagraph 5.1.1 of
this Agreement.
5.3.4 If no specific provision is made in Subparagraph 5.1.1 for adjustment of the Construction Manager's Fee in the case of
changes in the Work, or if the extent of such changes is such, in the aggregate that application of the adjustment provisions of
Subparagraph 5.1.1 will cause substantial inequity to the Owner or Construction Manager, the Construction Manager's Fee
shall be equitably adjusted on the basis of the fee established for the original Work.
5.3.5 The Construction Manager has included (15) days of weather related delays within his project schedule as
defined by Article II, Contract Time, of Amendment No.1 to the Agreement. If the project experiences additional
weather related delays beyond the defined amount of (15) days, the Construction Manager shall be entitled to
additional contract time on a day for day basis. The Construction Manager shall provide the Owner written
notification no later than (14) work days from the date of the event which caused the need for a time extension.
Failure to notify the Owner in writing within the (14) working day period shall be just cause for the rejection of the
time extension.
5.4 Damages.
5.4.1 Liquidated Damages. Construction Manager understands that if Substantial Completion (defined as a
Temporary Certificate of Occupancy) is not attained, due to sole responsibility of Construction Manager, by the
Scheduled Substantial Completion Date, Owner will suffer damages which are difficult to specify accurately and
ascertain. Construction Manager agrees that if Substantial Completion is not attained by thirty (30) days after the
Scheduled Substantial Completion Date (the "LD Date"), Construction Manager shall pay Owner One Thousand Five
Hundred and 001100 Dollars ($1,500.00) as liquidated damages for each day that Substantial Completion extends
beyond the LD Date. The liquidated damages provided herein shall be in lieu of all liability for any and all extra costs,
losses, expenses, claims, penalties and any other damages, whether special of consequential, and of whatsoever nature
incurred by Owner which are occasioned by any delay in achieving Substantial Completion. Final Completion will be
attained within thirty (30) days of Substantial Completion date, and all punchlist, owner training, as-built drawings
and Final Certificate of Occupancy shall be completed.
ARTICLE 6
COST OF THE WORK FOR CONSTRUCTION PHASE
6.1 COSTS TO BE REIMBURSED
6.1.1 The term "Cost of the Work" shall mean costs necessarily incurred by the Construction Manager in the proper
performance of the Work. Such costs shall be at rates not higher than those customarily paid at the place of the Project except
with prior consent of the Owner. The Cost of the Work shall include only the items set forth in this Article 6.
6.1.2
.1
LABOR COSTS
Wages of construction workers directly employed by the Construction Manager to perform the construction
of the Work at the site or, with the Owner's agreement, at off-site workshops.
Wages or salaries of the Construction Manager's supervisory and administrative personnel when stationed at
the site with the Owner's agreement, and employees stationed at the main or branch office directly
involved in the support of the project.
.2
.3 Wages and salaries of the Construction Manager's supervisory or administrative personnel engaged, at
factories, workshops or on the road, in expediting the production or transportation of materials or
equipment required for the Work, but only for that portion of their time required for the Work.
.4 Costs paid or incurred by the Construction Manager for taxes, insurance, contributions, assessments and
AlA A121/CMc and AGC 565
Revision July 2005
Page 11 of 24
benefits required by law or collective bargaining agreements, and, for personnel not covered by such
agreements, customary benefits such as sick leave, medical and health benefits, training, drug testing,
holidays, vacations and pensions, provided that such costs are based on wages and salaries included in the
Cost of the Work under Clauses 6.1.2.1 through 6.1.2.3. Holidays and vacations are excluded from
payroll taxes and fringe benefits and shall be billed directly to the project and considered
reimbursable under the terms of this Agreement.
.5 Wages, salaries, payroll taxes, insurance and fringe benefits, as defined in Paragraphs 6.1.1, 6.1.2,
6.1.3.and 6.1.4 above, shall be reimbursed in accordance with Appendix A, Personnel Reimbursement
Schedule.
6.1.3 SUBCONTRACT COSTS
Payments made by the Construction Manager to Subcontractors in accordance with the requirements of the subcontracts.
6.1.4 COSTS OF MATERIALS AND EQUIPMENT INCORPORATED IN THE COMPLETED CONSTRUCTION
.1 Costs, including transportation, of materials and equipment incorporated or to be incorporated in the
completed construction.
.2 Costs of materials described in the preceding Clause 6.1.4.1 in excess of those actually installed but
required to provide reasonable allowance for waste and for spoilage. Unused excess materials, if any, shall
be handed over to the Owner at the completion of the Work, or at the Owner's option, shall be sold by the
Construction Manager; amounts realized, if any, from such sales shall be credited to the Owner as a
deduction from the Cost of the Work.
6.1.5 COSTS OF OTHER MATERIALS AND EQUIPMENT, TEMPORARY FACILITIES AND RELATED ITEMS
.1 Costs, including transportation, installation, maintenance, dismantling and removal of materials, supplies,
temporary facilities, machinery, equipment, and hand tools not customarily owned by the construction
workers, which are provided by the Construction Manager at the site and fully consumed in the performance
of the Work; and cost less salvage value on such items if not fully consumed, whether sold to others or
retained by the Construction Manager. Cost for items previously used by the Construction Manager shall
mean fair market value.
.2 Rental charges for temporary facilities, machinery, equipment, and hand tools not customarily owned by the
construction workers, which are provided by the Construction Manager at the site, whether rented from the
Construction Manager or others, and costs of transportation, installation, minor repairs and replacements,
dismantling and removal thereof. Rates and quantities of equipment rented shall be subject to the O'lmcr's
prior approval fair market rates.
.3 Costs of removal of debris from the site.
.4 Reproductions costs, costs of telegrams, facsimile transmissions and long-distance telephone calls, postage
and express delivery charges, telephone service at the site and reasonable petty cash expenses of the site
office.
.5 That portion of the reasonable travel and subsistence expenses of the Construction Manager's personnel
incurred while traveling in discharge of duties connected with the Work.
6.1.6 MISCELLANEOUS COSTS
.1 That portion directly attributable to this Contract of costs for insurance and bonds.
Subcontractor default insurance shall be reimbursed at the fixed rate of 1.25 % of the total
subcontract amount.
Subcontractor general liability wrap-up insurance program (Z-25) shall be reimbursed at the fixed
rate of 1.25 % of the total subcontract amount and credited at the fixed rate of 1.25 % of the
subcontract amount from each subcontractor.
General Liability (PLPD) Insurance premiums shall be reimbursed at the fixed rate of 1.10 percent
(1.10%) ofthe Guaranteed Maximum Price.
AlA A121/CMc and AGC 565
Revision Ju7y 2005
Page 12 of24
Property insurance premiums shall be reimbursed in full and adjusted as necessary for increased or
decreased time for construction and change orders.
.2 Sales, use or similar taxes imposed by a governmental authority which are related to the Work and for
which the Construction Manager is liable.
.3 Fees and assessments for the building permit and for other permits, licenses and inspections for which the
Construction Manager is required by the Contract Documents to pay.
.4 Fees of testing laboratories for tests required by the Contract Documents, except those related to
nonconforming Work other than that for which payment is permitted by Clause 6.1.8.2.
.5 Royalties and license fees paid for the use of particular design, process or product required by the Contract
Documents; the cost of defending suits or claims for infringement of patent or other intellectual property
rights arising from such requirement by the Contract Documents; payments made in accordance with legal
judgments against the Construction Manager resulting from such suits or claims and payments of
settlements made with the Owner's consent; provided, however, that such costs of legal defenses, judgments
and settlements shall not be included in the calculation of the Construction Manager's Fee or the Guaranteed
Maximum Price and provided that such royalties, fees and costs are not excluded by the last sentence of
Subparagraph 3.17.1 of ALA Document A201 or other provisions of the Contract Documents.
.6 Data processing c Costs related to the Work for safety, OSHA, EEO, and other regulatory reporting as
well as project time, personnel and data records and reports.
.7 Deposits lost for causes other than the Construction Manager's negligence or failure to fulfill a specific
responsibility to the Owner set forth in this Agreement.
.8 Legal, mediation and arbitration costs, other than those arising from disputes between the Owner and
Construction Manager, reasonably incurred by the Construction Manager in the performance of the Work
and with the Owner's written permission, which permission shall not be unreasonably withheld.
.9 Expenses incurred in accordance with the Construction Manager's standard personnel policy for relocation
and temporary living allowance of personnel required for the Work, in case it is necessary to relocate such
personnel from distant locations.
6.1.7 OTHER COSTS
.1 Other costs incurred in the performance of the Work if and to the extent approved in advance in writing by
the Owner.
6.1.8 EMERGENCIES AND REPAIRS TO DAMAGED OR NONCONFORMING WORK
The Cost of the Work shall also include costs described in Subparagraph 6.1.1 which are incurred by the Construction
Manager:
.1
.2
In taking action to prevent threatened damage, injury or loss in case of an emergency affecting the safety of
persons and property, as provided in Paragraph 1O.~ 60f AlA Document A201.
In repairing or correcting damaged or nonconforming Work executed by the Construction Manager or the
Construction Manager's Subcontractors or suppliers, provided that such damaged or nonconforming Work
was not caused by the negligence or failure to fulfill a specific responsibility to the Owner set forth in the
Agreement of the Construction Manager or the Construction Manager's foremen, engineers or
superintendents, or other supervisory, administrative or managerial personnel of the Construction Manager,
or the failure of the Construction Manager's personnel to supervise adequately the Work of the
Subcontractors or suppliers, and only to the extent that the cost of repair or correction is not recoverable by
the Construction Manager from insurance, Subcontractors or suppliers.
6.1.9 The costs described in Subparagraphs 6.I.l through 6.1.8 shall be included in the Cost of the Work notwithstanding any
provision of ALA Document A20 I or other Conditions of the Contract which may require the Construction Manger to pay
such costs, unless such costs are excluded by the provisions of Paragraph 6.2.
6.2 COSTS NOT TO BE REIMBURSED
AlA A121/CMc and AGC 565
Revision Ju7y 2005
Page 13 of24
.1 Salaries and other compensation of the Construction Manager's personnel stationed at the Construction
Manager's principal office or offices other than the site office, except as specifically provided in Clal:lscs
Sections 6.1.2.2, 6.1.2.3, 6.1.2.4 and 6.1.2.5.
.2 Expenses of the Construction Manager's principal office and offices other than the site office except as
specifically provided in Paragraph 6.1.
.3 Overhead and general expenses, except as may be expressly included in Paragraph 6.1.
.4 The Construction Manager's capital expenses, including interest on the Construction Manager's capital
employed for the Work.
.5 Rental costs of machinery and equipment, except as specifically provided in subparagraph 6.1.5.2.
.6 Except as provided in Clause 6.1.8.2, costs due to the negligence of the Construction Manager or the failure
of the Construction Manager to fulfill a specific responsibility to the Owner set forth in this Agreement.
.7 Costs incurred in the performance of Preconstruction Phase Services except as defined by Article 4.
.8 Except as provided in Clause 6.1.7.1, any cost not specifically and expressly described in Paragraph 6. I.
.9 Costs which would cause the Guaranteed Maximum Price to be exceeded.
6.3 DISCOUNTS, REBATES AND REFUNDS
6.3.1 Cash discounts obtained on payments made by the Construction Manager shall accrue to the Owner if (I) before making
the payment, the Construction Manager included them in an Application for Payment and received payment therefor from the
Owner, or (2) the Owner has deposited funds with the Construction Manager with which to make payments; otherwise, cash
discounts shall accrue to the Construction Manager. Trade discounts, rebates, refunds and amounts received from sales of
surplus materials and equipment shall accrue to the Owner, and the Construction Manager shall make provisions so that they
can be secured.
6.3.2 Amounts which accrue to the Owner in accordance with the provisions of Subparagraph 6.3. I shall be credited to the
Owner as a deduction from the Cost of the Work.
6.4 ACCOUNTING RECORDS
6.4.1 The Construction Manager shall keep full and detailed accounts and exercise such controls as may be necessary for
proper financial management under this Contract; the accounting and control systems shall bc satisfactory' to tHC OVlHer. be
in accordance with generally accepted accounting methods (GAAP). The Project shall be operated in an open book
manner and Owner and the Owner's accountants shall be afforded access to the Construction Manager's records, books,
correspondence, instructions, drawings, receipts, subcontracts, purchase orders, vouchers, memoranda and other data relating
to this Project, and the Construction Manager shall preserve these for a period of three years after final payments, or for such
longer period as may be required by law.
ARTICLE 7
CONSTRUCTION PHASE
7.1 PROGRESS PAYMENTS
7.1.1 Based upon Applications for Payment submitted to the ArcHitcct Owner by the Construction Manager [lAd Certificates
for PaymcHt issl:Ica by tHe ;\rchitcct, the Owner shall make progress payments on account of the contract Sum to the
Construction Manager as provided below and elsewhere in the Contract Documents.
7.1.2 The period covered by each Application for Payment shall be one calendar month ending on the last day of the month,
or as follows:
7.1.3 Provided an Application for Payment is received by the ArcHitcct Owner not later than the first (1st) day of a month,
the Owner shall make payment to the Construction Manager not later than the twenty first (21st) day of the same month. If
an Application for Payment is received by the ;\rcHitcct Owner after the application date fixed above, payment shall be made
AlA A121/CMc and AGC 565
Revision July 2005
Page 14 of24
by the Owner not later than twenty one (21) days after the ,'\rchitcct Owner receives the Application for Payment.
:. ~ .~ ~T:~ ~~~~ ~~~I~~~t~H for PaymeHt, the COHstmction MaHager shall sl:lbmit payrolls, pctty cash aCCOI:IHts, reccipted
invoice; 0' i_i;o, with oheck voueh"" ,.oohe'. "d any 0",,,, .videa" reqniO'Cd hy .he Own", 0' Are,"""" '" "":;";';'''
~t :~~~ ~~~~~::~nts already made by the COHstruetioH MaHager OH accouHt of thc Cost of the V/ or~ ~~~~~ 0; c:~ (
progrcss paymcHts alrcady rceeived by thc COHstfl:lctioH MaHager; less (2) that portioH of thosc pay~~::~~ribl:ltablc to thc
COHstructioH MaHager's Fee; pll:ls (3) payrolls for the period covcred by the prcseHt ,^.pplicatioH for . .
7. 1.5 Each Application for Payment shall be based upon the most recent schedule of values submitted by the Construction
Manager in accordance with the Contract Documents. The schedule of values shall allocate the entire Guaranteed Maximum
Price among the various portions of the Work, except that the Construction Manager's Fee shall be shown as a single separate
item. The schedule of values shall be prepared in such form and supported by such data to substantiate its accuracy as the
Architcct Owner may require. This schedule, unless objected to by the ,^.rchitcct Owner shall be used as a basis for
reviewing the Construction Manager's Applications for Payment.
7.1.6 Applications for Payment shall show the percentage completion of each portion of the Work as of the end of the period
covered by the Application for Payment. The percentage completion shall be the lesser of (I) the percentage of that portion
of the Work which has actually been completed or (2) the percentage obtained by dividing (a) the expense which has actually
been incurred by the Construction Manager on account of that portion of the Work for which the Construction Manager has
made or intends to make actual payment prior to the next Application for Payment by (b) the share of the Guaranteed
Maximum Price allocated to that portion of the Work in the schedule of values.
7.1.7 Subject to other provisions of the Contract Documents, the amount of each progress payment shall be computed as
follows:
. I Take that portion of the Guaranteed Maximum Price properly allocable to completed Work as determined
by multiplying the percentage completion of each portion of the Work by the share of the Guaranteed
Maximum Price allocated to that portion of the Work in the schedule of values. Pending final
determination of cost to the Owner of changes in the Work, amounts not in dispute may be included as
provided in Subparagraph 7.3.7 of AlA Document A201, even though the Guaranteed Maximum Price has
not yet been adjusted by Change Order.
.2 Add that portion of the Guaranteed Maximum Price properly allocable to materials and equipment delivered
and suitably stored at the site for subsequent incorporation in the Work or, if approved in advance by the
Owner, suitably stored off the site at a location agreed upon in writing.
.3 Add the Construction Manager's Fee, less retainage of perecHt ( %) in accordance with Paragraph
7.1.8. The Construction Manager's Fee shall be computed upon the Cost of the Work described in the two
preceding Clauses at the rate stated in Subparagraph 5.1. lor, if the Construction Manager's fee is stated as
a fixed sum in that Subparagraph, shall be an amount which bears the same ratio to that fixed-sum Fee as
the Cost of the Work in the two preceding Clauses bears to a reasonable estimate of the probable Cost of the
Work upon its completion.
.4 Subtract the aggregate of previous payments made by the Owner.
.5 Subtract the shortfall, if any, indicated by the Construction Manager in the documentation required by
Subparagraph 7. 1.4 to substantiate prior Applications for Payment, or resulting from errors subsequently
discovered by the Owner's accountants in such documentation.
.6 Subtract amounts, if any, for which the ,^.rchitcct Owner has withheld or nullified a Certificate an
Application of Payment as provided in Paragraph 9.5 of AlA Document A201.
7.1.8 Payments to Construction Manager and retention thereon shall comply with A.R.S. ~34-607 as follows:
AlA A121/CMc and AGC 565
Revision Ju7y 2005
Page 150124
7.1.8.1 Payment to the contractor on the basis of a duly certified and approved estimate of the work performed
during the preceding calendar month under the contract may include payment for material and equipment, but to
ensure the proper performance of the contract, the owner shall retain ten per cent of the amount of each estimate
until final completion and acceptance of all material, equipment and work covered by the contract. An estimate of the
work submitted shall be deemed approved and certified for payment after seven days from the date of submission
unless before that time the owner or owner's agent prepares and issues a specific written finding setting forth those
items in detail in the estimate of the work that are not approved for payment under the contract. The owner may
withhold an amount from the progress payment sufficient to pay the expenses the owner reasonably expects to incur
in correcting the deficiency set forth in the written finding. The progress payments shall be paid on or before fourteen
days after the estimate of the work is certified and approved. The estimate of the work shall be deemed received by
the owner on submission to any person designated by the owner for the submission, review or approval of the estimate
of the work.
7.1.8.2 When the contract is fifty per cent completed, one-half of the amount retained including any securities
substituted under Subparagraph 7.1.8.4 shall be paid to the contractor on the contractor's request provided the
contractor is making satisfactory progress on the contract and there is no specific cause or claim requiring a greater
amount to be retained. After the contract is fifty per cent completed, no more than five per cent of the amount of any
subsequent progress payments made under the contract may be retained providing the contractor is making
satisfactory progress on the project, except that if at any time the owner determines satisfactory progress is not being
made ten per cent retention shall be reinstated for all progress payments made under the contract after the
determination.
7.1.8.3 On completion and acceptance of each separate building, public work or other division of the contract on
which the price is stated separately in the contract, except as qualified in Subparagraph 7.1.8.4, payment may be
made in full, including retained percentages, less authorized deductions. In preparing estimates, the material and
equipment delivered on the site to be incorporated in the job shall be taken into consideration in determining the
estimated value by the architect, engineer or other person, as specified in the contract.
7.1.8.4 Ten per cent of all estimates pursuant to Subparagraph 7.1.8.2, shall be retained by the agent as a guarantee
for complete performance of the contract, to be paid to the contractor within sixty days after completion or filing
notice of completion of the contract. Retention of payments by an agent longer than sixty days after final completion
and acceptance requires a specific written finding by the agent of the reasons justifying the delay in payment. No
agent may retain any monies after sixty days that are in excess of the amount necessary to pay the expenses the agent
reasonably expects to incur in order to payor discharge the expenses determined by the agent in the finding justifying
the retention of monies. In lieu of the retention provided in this section, the agent, at the option of the contractor, shall
accept as a substitute an assignment of time certificates of deposit of banks licensed by this state, securities of or
guaranteed by the United States of America, securities of this state, securities of counties, municipalities and school
districts within this state or shares of savings and loan associations authorized to transact business in this state, in an
amount equal to ten per cent of all estimates that are retained by the agent as a guarantee for complete performance
of the contract. If the agent accepts substitute security as described in this paragraph for the ten per cent retention,
the contractor is entitled to receive all interest or income earned by this security as it accrues and all such security in
lieu of retention shall be returned to the contractor by the agent within sixty days after final completion and
acceptance of all material, equipment and work covered by the contract if the contractor has furnished the agent
satisfactory receipts for all labor and material billed and waivers of liens from any and all persons holding claims
against the work. In no event shall the agent accept a time certificate of deposit of a bank or shares of a savings and
loan association in lieu of the retention specified unless accompanied by a signed and acknowledged waiver of the
bank or savings and loan association of any right or power to setoff against either the agent or the contractor in
relationship to the certificates or shares assigned.
7.1.8.5 Retention shall be withheld from the Construction Manager in accordance with the terms listed above for
trade work performed by his own personnel and subcontractors. Retention shall not be withheld from the
Construction Manager for payment of General Conditions, Fee, Purchase Order Agreements, allowances, taxes and
direct pass through items; i.e.: bonds, insurance, permits, etc.
AlA A121/CMc and AGC 565
Revision July 2005
Page 16 of24
The Owner and the Construction Manager shall agree upon a mutually acceptable procedure for review and approval of
payments and retention for subcontracts.
7.1.9 Except with the Owner's prior approval, the Construction Manager shall not make advance payments to suppliers for
materials or equipment which have not been delivered and stored at the site.
7.1.10 In taking action on the Construction Manager's Applications for Payment, the Architect and the Owner shall be
entitled to rely on the accuracy and completeness of the information furnished by the Construction Manager and shall not be
deemed to represent that the Architect or the Owner has made a detailed examination, audit or arithmetic verification of the
documentation submitted in accordance with Subparagraph 7.1.4 or other supporting data; that the Architect has made
exhaustive or continuous on-site inspections or that either the Architect or the Owner has made examinations to ascertain
how or for what purposes the Construction Manager has used amounts previously paid on account of the Contract. Such
examinations, audits and verifications, if required by the Owner, will be performed by the Owner's accountants acting in the
sole interest of the Owner.
7.2 FINAL PAYMENT
7.2.1 Final payment shall be made by the Owner to the Construction Manager when (I) the Contract has been fully
performed by the Construction Manager except for the Construction Manager's responsibility to correct nonconforming Work,
as provided in Subparagraph 12.2.2 of AlA Document A201, and to satisfy other requirements, if any, which necessarily
survive final payment; (2) a final Application for Payment and a final accounting for the Cost of the Work has been submitted
by the Construction Manager and reviewed by the Owner's accountants; and (3) a final Ccrtificate Application for Payment
has then been issued by the Architcct Construction Manager; such final payment shall be made by the Owner not more than
30 days after the issuance of the Architect's Construction Manager's final Certifieate Application for Payment, or as
follows:
7.2.2 The amount of the final payment shall be calculated as follows:
.1 Take the sum of the Cost of the Work substantiated by the Construction Manager's final accounting and the
Construction Manager's Fee; but not more than the Guaranteed Maximum Price.
.2 Subtract amounts, if any, for which the Architect Owner withholds, in whole or in part, a final Ccrtificatc
Application for Payment as provided in Subparagraph 9.5.1 of AlA Document A201 or other provisions of
the Contract Documents.
.3 Subtract the aggregate of previous payments made by the Owner.
If the aggregate of previous payments made by the Owner exceeds the amount due the Construction Manager, the
Construction Manager shall reimburse the difference to the Owner.
7.2.3 The Owner's accountants will review and report in writing on the Construction Manager's final accounting within 30
days after delivery of the final accounting to the f.rchitect Owner by the Construction Manager. Based upon such Cost of the
Work as the Owner's accountants report to be substantiated by the Construction Manager's final accounting, and provided the
other conditions of Subparagraph 7.2.1 have been met, the Architect Owner will, within seven days after receipt of the
written report of the Owner's accountants, either issue to the O.....ner a final Certificate for Ppayment ',vith a copy to the
Construction Manager, or notify the Construction Manager and Owner in writing of the i\rchitect's Owner's reasons for
withholding a certificatc payment as provided in Subparagraph 9.5.1 of AlA Document A20 I. The time periods stated in this
Paragraph 7.2 supersede those stated in Subparagraph 9.4.1 of AlA Document A201.
7.2.4 If the Owner's accountants report the Cost of the Work as substantiated by the Construction Manager's final accounting
to be less than claimed by the Construction Manager, the Construction Manager shall be entitled to proceed in accordance
with Article 9 without a further deeisiOH of the :\rchitect. Unless agreed to otherwise, a demand for mediation or arbitration
of the disputed amount shall be made by the Construction Manager within 60 days after the Construction Manager's receipt of
a copy of the t.rchitect's final Certificatc for Paymcnt. Owner's reason for withholding payment. Failure to make such
AlA A121/CMc and AGC 565
Revision July 2005
Page 170124
demand within this 60-day period shall result in the substantiated amount reported by the Owner's accountants becoming
binding on the Construction Manager. PeAding Upon receipt of a final resolution of the disputed amount, the Owner shall
pay the Construction Manager the amount certified in the Architect's Construction Manager's final Certificate Application
for Payment revised to reflect the final resolution.
7.2.5 If, subsequent to final payment and at the Owner's request, the Construction Manager incurs costs described in
Paragraph 6.1 and not excluded by Paragraph 6.2 (I) arising from the resolution of disputes, the Owner shall reimburse the
Construction Manager such costs and the Construction Manager's fee, if any, related thereto on the same basis as if such costs
had been incurred prior to final payment, but not in excess of the Guaranteed Maximum Price.
ARTICLE 8
INSURANCE AND BONDS
8.1 INSURANCE REQUIRED OF THE CONSTRUCTION MANAGER
During both phases of the Project, the Construction Manager shall purchase and maintain insurance as set forth in Paragraph
11.1 of AlA Document A20l-1997. Such insurance shall be written for not less than the following limits, or greater if
required by law:
8.1.1 Workers' Compensation and Employers' Liability meeting statutory limits mandated by State and Federal laws
8.1.2 Commercial General Liability including coverage for Premises-Operations, Independent Contractors' Protective,
Products-Completed Operations, Contractual Liability, Personal Injury, and Broad Form Property Damage (including
coverage for Explosion, Collapse and Underground hazards):
$1,000,000 Each Occurrence
$2,000,000 General Aggregate
$1,000,000 Personal and Advertising Injury
$2,000,000 Products-Completed Operations Aggregate
.1 The policy shall be endorsed to have the General Aggregate apply to this Project only.
.2 Products and Completed Operations insurance shall be maintained for a minimum period of at least (Two)
years after either 90 days following Substantial completion or final payment, whichever is earlier.
.3 The Contractual Liability insurance shall include coverage sufficient to meet the obligations in AlA
Document A201-1997 under Paragraph 3.18.
8.1.3 Construction Manager shall use its subcontractor general liability rolling wrap-up insurance program, Z-25,
which provides additional insured including completed operations coverage, primary and non contributory and
aggregate per project endorsements in favor of the Owner. Completed operations coverage shall be for a period of 10
years following substantial completion.
$
$
$
25,000,000
25,000,000
25,000,000
Each Occurrence
General Aggregate
Products/Completed Operations Aggregate
8.1 <H Automobile Liability (owned, non-owned and hired vehicles) for bodily injury and property damage:
$ 1,000,000 Each Accident
8.1.54 Other coverage:
"All-risk" Property insurance including earthquake, flood, stored materials and material in transit, including
waivers of subrogation, as set forth in Article 5, Insurance and Bonds of the General Conditions of the
Contract Between Owner and Construction Manager. Earthquake and flood insurance may be provided
AlA A121/CMc and AGC 565
Revision July 2005
Page 180124
with limits of coverage that are less than the contract amount or excluded if the Project is located in a high
hazard zone. Contractor shall pay the deductible for one loss event which is caused by either an All Other
Perils (AOP) loss such as fire, wind, vandalism etc. which is subject to a $10,000 deductible or Earthquake
which is subject to a $100,000 deductible. Contractor shall use the Project contingency fund or Project
savings to pay such loss. If neither or both together are insufficient to pay such Contractor shall be
responsible for the unpaid portion. The Owner shall pay all deductibles expenses arising from subsequent
AOP or Earthquake losses. In addition, the Owner shall pay all deductible expenses arising from subsequent
AOP or Earthquake losses. In addition, the Owner shall pay all deductible expenses for each Flood losses
which is subject to a deductible of 5 % of values at risk a the time of loss or $250,000 whichever is greater.
Subcontractor default insurance:
$25,000,000 Each Loss
$50,000,000 Aggregate
(If Umbrella Liability coverage is required over the primary insurance or retention, insert the coverage limits. Commercial General Liability and Automobile
Liability limits may be attained by individual policies or by a combination (?f primary policies and Umbrella and/or Liability policies.)
8.2 INSURANCE REQUIRED OF THE OWNER
During both phases of the Project, the Owner shall purchase and maintain liability afld property insurance, iflcludiflg waivers
of sl:lbrogatiofl, as set forth in Paragraphs 11.2 aHd 11.3 of AlA Document A201-1997. Such iHsuraHee shall bc writteH for
flot less thaH thc follo'.viHg Iifl'lits, or greatcr if required by law:
8.2.1 Property IHsl:lraHce:
$
$
Deductible Pcr OCCl:lffCHCC ts be fJaid. by the OWRer
,^.ggregate Dedl:lctible ts be fJaid. by the OWRer
8.2.2 Boiler aHd MachiHery insl:lraHce ',vith a Iifl'lit of:
$
(If not a blanket policy, list the objects to be insured.)
8.3 PERFORMANCE AND PAYMENT BOND
8.3.1 The Construction Manager shall furnish bonds covering faithful performance of the Contract and payment of
obligations arising thereunder. Bonds may be obtained through the Construction Manager's usual source and the cost thereof
shall be included in the Cost of the Work. The amount of each bond shall be equal to One Hundred percent (100%) of the
Contract Sum.
8.3.2 The Construction Manager shall deliver the required bonds to the Owner at least five days before the commencement
of any Work at the Project site.
ARTICLE 9
MISCELLANEOUS PROVISIONS
9.1 DISPUTE RESOLUTION
9.1.1 Claims, disputes or other matters in question between the parties to this Agreement shall be resolved by fl'IediatioH or by
arbitratioH as follows:
The parties shall endeavor to settle the dispute first through direct negotiation of the principals authorized to resolve
such claims, disputes, or other matters:
Owner's Principal: Mike Reuwsatt, Town Manager (or Designee)
AlA A121/CMc and AGC 565
Revision July 2005
Page 190124
Architect's Representative Bruce Loev, Carter Burgess
Construction Manager's Principal:
Eric Hedlund
9.1.2 If direct negotiation is unsuccessful, the parties shall endeavor to settle the dispute through mediation. Any
mediation conducted pursuant to this Paragraph 9.1 shall be held in accordance with the Construction Industry Mediation
Rules of the American Arbitration Association currently in effect, unless the parties mutually agree otherwise. Demand for
mediation shall be filed in writing with the other party to this Agreement and with the American Arbitration Association. Any
demand for mediation shall be made within a reasonable time after the claim, dispute or other matter in question has arisen
and negotiation of the principals has failed to resolve the issue as described in paragraph 9.1.1. In no event shall the
demand for mediation be made after the date when institution of legal or equitable proceedings based upon such claim,
dispute or other matter in question would be barred by the applicable statute of limitations.
9.1.3 Any claim, dispute or other matter in question not resolved by mediation shall be decided by arbitration in accordance
with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect unless parties
mutually agree otherwise. Notwithstanding any Construction Industry Arbitration Rule currently in effect, any
arbitrator shall have no power to ignore any provision of this Agreement, to retain any expert, to order discovery,
production of records or documents, issue subpoenas or order depositions or responses to interrogatories without the
prior written consent of the parties.
9.1.4 Demand for arbitration shall be filed in writing with the other party to this Agreement and with the American
Arbitration Association. A demand for arbitration may be made cOflcl:lffefltly ......ith a demafld for mcdiatioR if mediation has
failed to resolve the dispute and shall be made within a reasonable time after the claim, dispute or other matter in question
has arisen and mediation is determined by either party as unable to reach a resolution.. In no event shall the demand for
arbitration be made after the date when institution of legal or equitable proceedings based upon such claim, dispute or other
matter in question would be barred by the applicable statute of limitations.
:. ~.~ ~~ ~~it:,atiofl arisiflg Ol:lt of or rclatiflg to the COfltract Doeumeflts shall iflcll:lde, by cOflsolidatiofl or joiflder or ifl any
other manfler, the :\rchitect, thc Arehitect's eHlflloyees or cOflsl:lltaflts, except by '.\'fittefl eOflseflt cOfltaifliflg specific refcreflee
~~ ~r-c ,\~reemeflt afld sigfled by the ,\rchitect, OVlfIer, COflstfl:lctiofl Maflager afld aflY other persofl or emity sOl:lght to be
joifl~d. No arbitratiofl shall iflcll:lde, by eOflsolidatiofl or joiflder or ifl aflY other maflfler, parties other thafl the OWflcr,
~~~~~~~~i~~ ~:~~er, a separate eOfltractor as described ifl Articlc 6 of :\1:\ Docl:lmeflt ,\201 aflB other persofls sl:lbstafltially
iflvolvod in a COffifROfl ql:lestiofl of faet or la'.v vlhosc preseflee is reql:lired if complete relief is to be accorded ifl arbitratiofl.
No persofl or efltity other thafl the O.....fler or COflstrl:letiofl Maflager or a scparate cOfltractor as deseribed ifl ,\rticle 6 of :\1:\
Docl:lmeflt :\201 shall be iflell:ldcd as afl origiflal third party or additioflal third part)' to afl arbitratiofl vlhose ifltercst or
~:~~~i~ility is iflsubstafltial. COflseflt to arbitratiofl iflvolviflg afl additioflal persoR or efltity shall flOt eOflstitl:lte agrecmeflt to
:~:t~~~~~ ~ ~ ~~:!~~ flOt described ifl such CORseRt or with a pcrsofl or efltity flOt flamed or deseribed thereifl. Thc foregoiflg
~g~~~e~n: to arbitrate afld other agreemeflts to arbitrate With afl addItlOflal pcrsOfl or efltity dl:lly cOflseflted to by parties to thiS
Agrecmeflt shall bc speeifieally cRforceable uflder applicable law ifl afl)' cOl:lrt ha';iflg jurisdietiofl thereof.
9.1.6 The award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon it in accordance
with applicable law in any court having jurisdiction thereof. In no event may any arbitrator award any party
consequential or indirect damages.
9.2 Deleted under This Paragraph shall be conducted in accordance with the provisions of Subparagraphs 9.1.2 and
9.1.3
9.3 OTHER PROVISIONS
9.3.1 Unless otherwise noted, the terms used in this Agreement shall have the same meaning as those in the 1997 Edition of
AlA Document A20 I, General Conditions of the Contract for Construction.
AlA A121/CMc and AGC 565
Revision July 2005
Page 20 of 24
9.3.2 EXTENT OF CONTRACT
This Contract, which includes this Agreement and the other documents incorporated herein by reference, represents the entire
and integrated agreement between the Owner and Construction Manager and supersedes all prior negotiations, representations
or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both the Owner
and Construction Manager. If anything in any document incorporated into this Agreement is inconsistent with this
Agreement, this Agreement shall govern.
9.3.3 OWNERSHIP AND USE OF DOCUMENTS
The Drawings, Specifications and other documents prepared by the Architect, and copies thereof furnished to the
Construction Manager, are for use solely with respect to this Project. They are not to be used by the Construction Manager,
Subcontractors, Sub-subcontractors or suppliers on other projects, or for additions to this Project outside the scope of the
Work, without the specific written consent of the Owner and Architect. The Construction Manager, Subcontractors, Sub-
subcontractors and suppliers are granted a limited license to use and reproduce applicable portions of the Drawings,
Specifications and other documents prepared by the Architect appropriate to and for use in the execution of their Work under
the Contract Documents.
9.3.4 GOVERNING LAW
The Contract shall be governed by the law of the place where the Project is located.
9.3.5 ASSIGNMENT
The Owner and Construction Manager respectively bind themselves, their partners, successors, assigns and legal
representatives to the other party hereto and to partners, successors, assigns and legal representatives of such other party in
respect to covenants, agreements and obligations contained in the Contract Documents. Neither party to the Contract shall
assign the Contract as a whole without written consent of the other. If either party attempts to make such an assignment
without such consent, the party shall nevertheless remain legally responsible for all obligations under the Contract.
Notwithstanding the foregoing, in the event of a sale or transfer of a portion or all of the Project to a different Owner,
such purchasers, transferees or assigns shall have no rights or remedies of any kind or nature against Construction
Manager and all provisions of this Agreement inconsistent therewith are void and of no force and effect.
ARTICLE 10
TERMINA TION OR SUSPENSION
10.1 TERMINATION PRIOR TO ESTABLISHING GUARANTEED MAXIMUM PRICE
10.1.1 Prior to execution by both parties of Amendment No. I establishing the Guaranteed Maximum Price, the Owner may
terminate this Contract at any time without cause, and the Construction Manager may terminate this Contract for any of the
reasons described in Subparagraph 14.1.1 of AlA Document A201.
10.1.2 If the Owner or Construction Manager terminates this Contract pursuant to this Paragraph 10.1 prior to
commencement of the Construction Phase, the Construction Manager shall be equitably compensated for Preconstruction
Phase services performed prior to receipt of notice of termination; provided, however, that the compensation of such services
shall not exceed the compensation set forth in Subparagraph 4.1.1.
10.1.3 If the Owner or Construction Manager terminates this Contract pursuant to this Paragraph 10.1 after commencement
of the Construction Phase, the Construction Manager shall, in addition to the compensation provided in Subparagraph 10.1.2,
be paid an amount calculated as follows:
.1 Take the Cost of the Work incurred by the Construction Manager.
AlA A121/CMc and AGC 565
Revision July 2005
Page 21 of24
.2 Add the Construction Manager's Fee computed upon the Cost of the work to the date of termination at the
rate stated in Paragraph 5. lor, if the Construction Manager's Fee is stated as a fixed sum in that Paragraph,
an amount which bears the same ratio to the fixed-sum Fee as the Cost of Work at the time of termination
bears to a reasonable estimate of the probable Cost of the Work upon its completion.
.3 Subtract the aggregate of previous payments made by the Owner on account of the Construction Phase.
The Owner shall also pay the Construction Manager fair compensation, either by purchase or rental at the election of the
Owner, for any equipment owned by the Construction Manager which the Owner elects to retain and which is not otherwise
included in the Cost of the Work under Clause 10.1.3.1. To the extent that the Owner elects to take legal assignment of
subcontracts and purchase orders (including rental agreements), the Construction Manager shall, as a condition of receiving
the payments referred to in this Article 10, execute and deliver all such papers and take all such steps, including the legal
assignment of such subcontracts and other contractual rights of the Construction Manager, as the Owner may require for the
purpose of fully vesting in the Owner the rights and benefits of the Construction Manager under such subcontracts or purchase
orders.
Subcontracts, purchase orders and rental agreements entered into by the Construction Manager with the Owner's written
approval prior to the execution of Amendment No. I shall contain provisions permitting assignment to the Owner as described
above. If the Owner accepts such assignment, the Owner shall reimburse or indemnify the Construction Manager with respect
to all costs arising under the subcontract, purchase order or rental agreement except those which would not have been
reimbursable as Cost of the work if the contract had not been terminated. If the Owner elects not to accept the assignment of
any subcontract, purchase order or rental agreement which would have constituted a Cost of the Work had this agreement not
been terminated, the Construction Manager shall terminate such subcontract, purchase order or rental agreement and the
Owner shall pay the Construction Manager the costs necessarily incurred by the Construction Manager by reason of such
termination.
10.2 TERMINATION SUBSEQUENT TO ESTABLISHING GUARANTEED MAXIMUM PRICE
Subsequent to execution by both parties of Amendment No. I, the Contract may be terminated as provided in Article 14 of
AlA Document A201.
10.2.1 In the event of sttefl termination by the Owner for cause, the amount payable to the Construction Manager pursuant to
Subparagraph 14.1.2 of AlA Document A20 I shall not exceed the amount the Construction Manager would have been
entitled to receive pursuant to Subparagraphs 10. 1.2 and 10.1.3 of this Agreement.
10.2.2 In the event of sttefl termination by the Construction Manager or by the Owner for convenience, the amount to be
paid to the Construction Manager under Subparagraph 14.1.2 of AlA Document A201 shall not exceed the amount the
Construction Manager would be entitled to receive under Subparagraphs 10.1.2 or 10.1.3 above.
10.3 SUSPENSION
The Work may be suspended by the Owner as provided in Article 14 of AlA Document A20 I; in such case, the Guaranteed
Maximum Price, if established, shall be increased as provided in Subparagraph 14.3.2 of AlA Document A201 except that the
term cost of performance of the Contract in that Subparagraph shall be understood to mean the Cost of the Work and the term
profit shall be understood to mean the Construction Manager's Fee as described in Subparagraphs 5.1. I and 5.3.4 of this
Agreement.
ARTICLE 11
OTHER CONDITIONS AND SERVICES
This Agreement entered into as of the day and year first written above.
AlA A121/CMc and AGC 565
Revision Ju7y 2005
Page 22 of 24
OWNER
By:
Its:
Mike Reuwsatt
Town Manager
Date:
Attest:
By:
Jocelyn Bronson
Its: Town Clerk
Date:
1f4..u~
By:
Its: Airport Director
'f- 9-07
Date
Date: .,,/~. cJ7
,,</t'rc:' ~~ c;,e/~/t;M-I ~ f/-~-pah
~/~r/ /:.t rA,J ~~""c"..r ....~ JZ"'//J'
retf~.sr /.? &"77 W'r~ ~7~ C,,..,{.x~;fJ.
fP
By:
CONSTRUCTION MANAGER: Sundt Construction, Inc.
Date:
Its: Senior Vice President
Eric Hedlund, P.E., CPC
Attest:
By:
Its:
Date:
Assistant Secretary
EXHIBIT "A"
1997 Edition of AlA Document A201
General Conditions
AlA DOCUMENT A201-1997
General Conditions of the Contract for Construction (April 2005)
TABLE OF ARTICLES
1. GENERAL PROVISIONS
2. OWNER
3. CONTRACTOR
4. ADMINSTRATION OF THE CONTRACT
5. SUBCONTRACTORS
6. CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS
7. CHANGES IN THE WORK
8. TIME
9. PAYMENTS AND COMPLETION
10. PROTECTION OF PERSONS AND PROPERTY
11. INSURANCE AND BONDS
12. UNCOVERING AND CORRECTION OF WORK
13. MISCELLANEOUS PROVISIONS
14. TERMINATION OR SUSPENSION OF THE CONTRACT
1997 EDITION
Revision April 2005
CAUTION: You should use an original A/A document with the A/A logo printed in red. An original assures that
changes will not be obscured as may occur when documents are reproduced.
Copyright 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1967, 1970, 1976, 1987, @ 1997 by The American
Institute of Architects. Fifteenth Edition. Reproduction of the material herein or substantial quotation of its provisions without
written permission of the AlA violates the copyright laws of the United States and will subject the violator to legal prosecution.
WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution.
1
ARTICLE 1 GENERAL PROVISIONS
1.1 BASIC DEFINITIONS
1.1.1 THE CONTRACT DOCUMENTS
Precedence of the Contract Documents cOAsist of is as follows: The Agreement between Owner and Contractor
(hereinafter the Agreement), Conditions of the Contract (General, Supplementary and other Conditions), Drawings,
Specifications, Addenda issued prior to execution of the Contract, other documents listed in the Agreement and
Modifications issued after execution of the Contract. A Modification is (I) a written amendment to the Contract signed
by both parties, (2) a Change Order, (3) a Construction Change Directive or (4) a written order for a minor change in the
Work issued by the Architect. Unless specifically enumerated in the Agreement, the Contract Documents do not include
other documents such as bidding requirements (advertisement or invitation to bid, Instruction to Bidders, sample forms,
the Contractor's bid or portions of Addenda relating to bidding requirements).
1.1.2 THE CONTRACT
The Contract Documents form the Contract for Construction. The Contract represents the entire and integrated
agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or
oral. The Contract may be amended or modified only by a Modification. The Contract Documents shall not be
construed to create a contractual relationship of any kind (I) between the Architect and Contractor, (2) between the
Owner and a Subcontractor or Sub-Subcontractor, (3) between the Owner and Architect or (4) between any persons or
entities other than the Owner and Contractor. The Architect shall, however, be entitled to performance and enforcement
of obligations under the Contract intended to facilitate performance of the Architect's duties.
1.1.3 THE WORK
The term "Work" means the construction and services required by the Contract Documents, whether completed or
partially completed, and includes all other labor, materials, equipment and services provided or to be provided by the
Contractor to fulfill the Contractor's obligations. The Work may constitute the whole or a part of the Project.
1.1.4 THE PROJECT
The Project is the total construction of which the Work performed under the Contract Documents may be the whole or a
part and which may include construction by the Owner or by separate contractors.
1.1.5 THE DRAWINGS
The Drawings are the graphic and pictorial portions of the Contract Documents showing the design, location and
dimensions of the Work, generally including plans, elevations, sections, details, schedules and diagrams.
1.1.6 THE SPECIFICATIONS
The Specifications are that portion of the Contract Documents consisting of the written requirements for materials,
equipment, systems, standards and workmanship for the Work, and performance of related services.
1.1.7 THE PROJECT MANUAL
The Project Manual is a volume assembled for the Work which may include the bidding requirements, sample forms,
Conditions of the Contract and Specifications.
1.2 CORRELATION AND INTENT OF THE CONTRACT DOCUMENTS
1.2.1 The intent of the Contract Documents is to include all items necessary for the proper execution and completion
of the Work by the Contractor. The Contract Documents are complementary, and what is required by one shall be as
binding as if required by all; performance by the Contractor shall be required only to the extent consistent with the
Contract Documents and reasonably inferable from them as being necessary to produce the indicated results.
1.2.2 Organization of the Specifications into divisions, sections and articles, and arrangement of Drawings shall not
control the Contractor in dividing the Work among Subcontractors or in establishing the extent of the Work to be
performed by any trade.
1.2.3 Unless otherwise stated in the Contract Documents, words which have well-known technical or construction
industry meanings are used in the Contract Documents in accordance with such recognized meanings.
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1.3 CAPITALIZATION
1.3.1 Terms capitalized in these General Conditions include those which are (I) specifically defined, (2) the titles of
numbered articles and identified references to Paragraphs. Subparagraphs and Clauses in the document or (3) the titles of
other documents published by the American Institute of Architects.
1.4 INTERPRETATION
1.4.1 In the interest of brevity the Contract Documents frequently omit modifying words such as "all" and "any" and
articles such as "the" and "an," but the fact that a modifier or an article is absent from one statement and appears in
another is not intended to affect the interpretation of either statement.
1.5 EXECUTION OF CONTRACT DOCUMENTS
1.5.1 The Contract Documents shall be signed by the Owner and Contractor. If either the Owner or Contractor or
both do not sign all the Contract Documents, the Architect shall identify such unsigned Documents upon request.
1.5.2 Execution of the Contract by the Contractor is a representation that the Contractor has visited the site, become
generally familiar with local conditions under which the Work is to be performed and correlated personal observations
with requirements of the Contract Documents.
1.6 OWNERSHIP AND USE OF DRAWINGS, SPECIFICATIONS AND OTHER INSTRUMENTS OF
SERVICE
1.6.1 The Drawings, Specifications and other documents, including those in electronic form, prepared by the
Architect and the Architect's consultants are Instruments of Service through which the Work to be executed by the
Contractor is described. The Contractor may retain one record set. Neither the Contractor nor any Subcontractor, Sub-
subcontractor or material or equipment supplier shall own or claim a copyright in the Drawings, Specifications and other
documents prepared by the Architect or the Architect's consultants, and unless otherwise indicated the Architect and the
Architect's consultants shall be deemed the authors of them and will retain all common law, statutory and other reserved
rights, in addition to the copyrights. All copies of Instruments of Service, except the Contractor's record set, shall be
returned or suitably accounted for to the Architect, on request, upon completion of the Work. The Drawings,
Specifications and other documents prepared by the Architect and the Architect's consultants, and copies thereof
furnished to the Contractor are for use solely with respect to this Project. They are not be used by the Contractor or any
Subcontractor, Sub-subcontractor or material or equipment supplier on other projects or for additions to this Project
outside the scope of the Work without the specific written consent of the Owner, Architect and the Architect's
consultants. The Contractor, Subcontractors, Sub-subcontractors and material or equipment suppliers are authorized to
use and reproduce applicable portions of the Drawings, Specifications and other documents prepared by the Architect
and the Architect's consultants appropriate to and for use in the execution of their Work under the Contract Documents.
All copies made under this authorization shall bear the statutory copyright notice, if any, shown on the Drawings,
Specifications and other documents prepared by the Architect and the Architect's consultants. Submittal or distribution
to meet official regulatory requirements or for other purposes in connection with this Project is not to be construed as
publication in derogation of the Architect's or Architect's consultants' copyrights or other reserved rights.
ARTICLE 2 OWNER
2.1 GENERAL
2.1.1 The Owner is the person or entity identified as such in the Agreement and is referred to throughout the Contract
Documents as if singular in number. The Owner shall designate in writing a representative who shall have express
authority to bind the Owner with respect to all matters requiring the Owner's approval or authorization. Except as
otherwise provided in Subparagraph 4.2.1, the Architect does not have such authority. The term "Owner" means the
Owner or the Owner's authorized representative.
2.1.2 The Owner shall furnish to the Contractor within fifteen days after receipt of a written request, information
necessary and relevant for the Contractor to evaluate, give notice of or enforce mechanic's lien rights. Such information
shall include a correct statement of the record legal title to the property on which the Project is located, usually referred
to as the site, and the Owner's interest therein.
3
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2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER
2.2.1 The Owner shall, at the written request of the Contractor, prior to commencement of the Work and thereafter,
furnish to the Contractor reasonable evidence that financial arrangements have been made to fulfill the Owner's
obligations under the Contract. Furnishing of such evidence shall be a condition precedent to commencement or
continuation of the Work. After such evidence has been furnished, the Owner shall not materially vary such financial
arrangements without prior notice to the Contractor.
2.2.2 Except for permits and fees, including those required under Subparagraph 3.7.1, which are the responsibility of
the Contractor under the Contract Documents, the Owner shall secure and pay for necessary approvals, easements,
assessments and charges required for construction, use or occupancy of permanent structures or for permanent changes
in existing facilities.
2.2.3 The Owner shall furnish surveys describing physical characteristics, legal limitations and utility locations for
the site of the Project, and a legal description of the site. The Contractor shall be entitled to rely on the accuracy of
information furnished by the Owner but shall exercise proper precautions relating to the safe performance of the Work.
2.2.4 Information or services required of the Owner by the Contract Documents shall be furnished by the Owner with
reasonable promptness. Any other information or services relevant to the Contractor's performance of the Work under
the Owner's control shall be furnished by the Owner after receipt from the Contractor of a written request for such
information or services.
2.2.5 Unless otherwise provided in the Contract Documents, the Contractor will be furnished, free of charge, such
copies of Drawings and Project Manuals as are reasonably necessary for execution of the Work.
2.3 OWNER'S RIGHT TO STOP THE WORK
2.3.1 If the Contractor fails to correct Work which is not in accordance with the requirements of the Contract
Documents as required by Paragraph 12.2 or persistently fails to carry out Work in accordance with the Contract
Documents, the Owner may issue a written order to the Contractor to stop the Work, or any portion thereof, until the
cause for such order has been eliminated; however, the right of the Owner to stop the Work shall not give rise to a duty
on the part of the Owner to exercise this right for the benefit of the Contractor or any other person or entity, except to the
extent required by Subparagraph 6.1.3.
2.4 OWNER'S RIGHT TO CARRY OUT THE WORK
2.4.1 If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and fails
within a seven-day period after receipt of written notice from the Owner to commence and continue correction of such
default or neglect with diligence and promptness, the Owner may after such seven-day period give the Contractor a
second written notice to correct such deficiencies within a three-day period. If the Contractor within such three-day
period after receipt of such second notice fails to commence and continue to correct any deficiencies, the Owner may,
without prejudice to other remedies the Owner may have, correct such deficiencies. In such case an appropriate Change
Order shall be issued deducting from payments then or thereafter due the Contractor the reasonable cost of correcting
such deficiencies, including Owner's expenses and compensation for the Architect's additional services made necessary
by such default, neglect or failure. Such action by the Owner and amounts charged to the Contractor are both subject to
prior approval of the Architect. If payments then or thereafter due the Contractor are not sufficient to cover such
amounts, the Contractor shall pay the difference to the Owner.
ARTICLE 3 CONTRACTOR
3.1 GENERAL
3.1.1 The Contractor is the person or entity identified as such in the Agreement and is referred to throughout the
Contract Documents as if singular in number. The term "Contractor" means the Contractor or the Contractor's
authorized representati ve.
3.1.2 The Contractor shall perform the Work in accordance with the Contract Documents.
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3.1.3 The Contractor shall not be relieved of obligations to perform the Work in accordance with the Contract
Documents either by activities or duties of the Architect in the Architect's administration of the Contract, or by tests,
inspections or approvals required or performed by persons other than the Contractor.
3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR
3.2.1 Since the Contract Documents are complementary, before starting each portion of the Work, the Contractor
shall carefully study and compare the various Drawings and other Contract Documents relative to that portion of the
Work, as well as the information furnished by the Owner pursuant to Subparagraph 2.2.3, shall take field measurements
of any existing conditions related to that portion of the Work and shall observe any conditions at the site affecting it.
These obligations are for the purpose of facilitating construction by the Contractor and are not for the purpose of
discovering errors, omissions, or inconsistencies in the Contract Documents; however, any errors, inconsistencies or
omissions discovered by the Contractor shall be reported promptly to the Architect as a request for information in such
form as the Architect may require.
3.2.2 Any design errors or omissions noted by the Contractor during this review shall be reported promptly to the
Architect, but it is recognized that the Contractor's review is made in the Contractor's capacity as a contractor and not as
a licensed design professional unless otherwise specifically provided in the Contract Documents. The Contractor is not
required to ascertain that the Contract Documents are in accordance with applicable laws, statutes, ordinances, building
codes, and rules and regulations, but any nonconformity discovered by or made known to the Contractor shall be
reported promptly to the Architect.
3.2.3 If the Contractor believes that additional cost or time is involved because of clarifications or instructions issued
by the Architect in response to the Contractor's notices or requests for information pursuant to Subparagraphs 3.2.1
and 3.2.2, the Contractor shall make Claims as provided in Subparagraphs 4.3.6 and 4.3.7. If the Contractor fails to
perform the obligations of Subparagraph 3.2.1 and 3.2.2, the Contractor shall pay such costs and damages to the Owner
as would have been avoided if the Contractor had performed such obligations. The Contractor shall not be liable to the
Owner or Architect for damages resulting from errors, inconsistencies or omissions in the Contract Documents or for
differences between field measurements or conditions and the Contract Documents unless the Contractor recognized
such error, inconsistency, omission or difference and knowingly failed to report it to the Architect.
3.3 SUPERVISION AND CONSTRUCTION PROCEDURES
3.3.1 The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention. The
Contractor shall be solely responsible for and have control over construction, means, methods, techniques, sequences and
procedures and for coordinating all portions of the Work under the Contract, unless the Contract Documents give other
specific instructions concerning these matters. If the Contract Documents gi ve specific instructions concerning
construction means, methods, techniques, sequences or procedures, the Contractor shall evaluate the jobsite safety
thereof and, except as stated below, shall be fully and solely responsible for the jobsite safety of such means, methods,
techniques, sequences or procedures. If the Contractor determines that such means, methods, techniques, sequences or
procedures may not be safe, the Contractor shall give timely written notice to the Owner and Architect and shall not
proceed with that portion of the Work without further written instructions from the Architect. If the Contractor is then
instructed to proceed with the required means, methods, techniques, sequences or procedures without acceptance of
changes proposed by the Contractor, the Owner shall be solely responsible for any resulting loss or damage.
3.3.2 The Contractor shall be responsible to the Owner for acts and omissions of the Contractor's employees,
Subcontractors and their agents and employees, and other persons or entities performing portions of the Work for or on
behalf of the Contractor or any of its Subcontractors.
3.3.3 The Contractor shall be responsible for inspection of portions of Work already performed to determine that such
portions are in proper condition to receive subsequent Work.
3.4 LABOR AND MATERIALS
3.4.1 Unless otherwise provided in the Contract Documents, the Contractor shall provide and pay for labor, materials,
equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other facilities and
services necessary for proper execution and completion of the Work, whether temporary or permanent and whether or
not incorporated or to be incorporated in the Work.
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3.4.2 The Contractor may make substitutions only with the consent of the Owner, after evaluation by the Architect
and in accordance with a Change Order.
3.4.3 The Contractor shall enforce strict discipline and good order among the Contractor's employees and other
persons carrying out the Contract. The Contractor shall not permit employment of unfit persons or persons not skilled in
tasks assigned to them.
3.5 WARRANTY
3.5.1 The Contractor warrants to the Owner and Architect that materials and equipment furnished under the Contract
will be of good quality and new unless otherwise required or permitted by the Contract Documents that the Work will be
free from defects not inherent in the quality required or permitted, and that the Work will conform to the requirements of
the Contract Documents. Work not conforming to these requirements, including substitutions not properly approved and
authorized, may be considered defective. The Contractor's warranty excludes remedy for damage or defect caused by
abuse, modifications not executed by the Contractor, improper or insufficient maintenance, improper operation, or
normal wear and tear and normal usage. If required by the Architect, the Contractor shall furnish satisfactory evidence
as to the kind and quality of materials and equipment.
3.6 TAXES
3.6.1 The Contractor shall pay sales, consumer, use and similar taxes for the Work provided by the Contractor which
are legally enacted when bids are received or negotiations concluded, whether or not yet effective or merely scheduled to
go into effect.
3.7 PERMITS, FEES AND NOTICES
3.7.1 Unless otherwise provided in the Contract Documents, the Contractor shall secure and pay for the building
permit and other permits and governmental fees, licenses and inspections necessary for proper execution and completion
and completion of the Work which are customarily secured after execution of the Contract and which are legally required
when bids are received or negotiations concluded.
3.7.2 The Contractor shall comply with and give notices required by laws, ordinances, rules, regulations and lawful
orders of public authorities applicable to performance of the Work.
3.7.3 It is not the Contractor's responsibility to ascertain that the Contract Documents are in accordance with
applicable laws, statutes, ordinances, building codes, and rules and regulations. However, if the Contractor observes that
portions of the Contract Documents are at variance therewith, the Contractor shall promptly notify the Architect and
Owner in writing, and necessary changes shall be accomplished by appropriate Modification.
3.7.4 If the Contractor performs Work knowing it to be contrary to laws, ordinances, building codes, and rules and
regulations without such notice to the Architect and Owner, the Contractor shall assume appropriate responsibility for
such Work and shall bear the costs attributable to correction.
3.8 ALLOWANCES
3.8.1 The Contractor shall include in the Contract Sum all allowances stated in the Contract Documents. Items
covered by allowances shall be supplied for such amounts and by such persons or entities as the Owner may direct, but
the Contractor shall not be required to employ persons or entities to whom the Contractor has reasonable objection.
3.8.2 Unless otherwise provided in the Contract Documents:
.1 allowances shall cover the cost of the Contractor of materials and equipment delivered at the site aOO--all
reqHired taxes, less applicable trade discounts.
.2 Contractor's costs for unloading and handling at the site, labor, installation costs, overhead, profit and other
expenses contemplated for stated allowance amounts shall be included iH the Contract SHill bHt not in the
allowances;
.3 whenever costs are more than or less than allowances, the Contract Sum shall be adjusted accordingly by
Change Order. The amount of the Change Order shall reflect (I) the difference between actual costs and
the allowances under Clause 3.8.2.1 and (2) changes in Contractor's costs under Clause 3.8.2.2,and an
adjustment of fee in accordance with the Agreement.
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3.8.3 Materials and equipment under an allowance shall be selected by the Owner in sufficient time to avoid delay in
the Work.
3.9 SUPERINTENDENT
3.9.1 The Contractor shall employ a competent superintendent and necessary assistants who shall be in attendance at
the Project site during performance of the Work. The superintendent shall represent the Contractor, and communications
given to the superintendent shall be as binding as if given to the Contractor. Important communications shall be
confirmed in writing. Other communications shall be similarly confirmed on written request in each case.
3.10 CONTRACTOR'S CONSTRUCTION SCHEDULES
3.10.1 The Contractor, promptly after being awarded the Contract, shall prepare and submit for the Owner's and
Architect's information a Contractor's construction schedule for the Work. The schedule shall not exceed time limits
current under the Contract Documents, shall be revised at appropriate intervals as required by the conditions of the Work
and Project, shall be related to the entire Project to the extent required by the Contract Documents, and shall provide for
expeditious and practicable execution of the Work.
3.10.2 The Contractor shall prepare and keep current, for the Architect's approval, a schedule of submittals which is
coordinated with the Contractor's construction schedule and allows the Architect reasonable time to review submittals.
3.10.3 The Contractor shall perform the Work in general accordance with the most recent schedules submitted to the
Owner and Architect.
3.11 DOCUMENTS AND SAMPLES AT THE SITE
3.11.1 The Contractor shall maintain at the site for the Owner one record copy of the Drawings, Specifications,
Addenda, Change Orders and other Modifications, in good order and marked currently to record field changes and
selections made during construction, and one record copy of approved Shop Drawings, Product Data, Samples and
similar required submittals. These shall be available to the Architect and shall be delivered to the Architect for submittal
to the Owner upon completion of the Work.
3.12 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES
3.12.1 Shop Drawings are drawings, diagrams, schedules and other data specially prepared for the Work by the
Contractor or a Subcontractor, Sub-subcontractor, manufacturer, supplier or distributor to illustrate some portion of the
Work.
3.12.2 Product Data are illustrations, standard schedules, performance charts, instructions, brochures, diagrams and
other information furnished by the Contractor to illustrate materials or equipment for some portion of the Work.
3.12.3 Samples are physical examples which illustrate materials, equipment or workmanship and establish standards
by which the Work will be judged.
3.12.4 Shop Drawing, Product Data, Samples and similar submittals are not Contract Documents. The purpose of their
submittal is to demonstrate for those portions of the Work for which submittals are required by the Contract Documents
the way by which the Contractor proposes to conform to the information given and the design concept expressed in the
Contract Documents. Review by the Architect is subject to the limitations of Subparagraph 4.2.7. Informational
submittals upon which the Architect is not expected to take responsive action may be so identified in the Contract
Documents. Submittals which are not required by the Contract Documents may be returned by the Architect without
action.
3.12.5 The Contractor shall review for compliance with the Contract Documents, approve and submit to the Architect
Shop Drawings, Product Data, Samples and similar submittals required by the Contract Documents with reasonable
promptness and in such sequence as to cause no delay in the Work or in the activities of the Owner or of separate
contractors. Submittals which are not marked as reviewed for compliance with the Contract Documents and apprO'.'ed by
the Contractor may be returned by the Architect without action.
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3.12.6 By appro'liRE; and submitting Shop Drawings, Product Data, Samples and similar submittals, the Contractor
represents that the Contractor has determined and verified materials, field measurements and field construction criteria
related thereto, or will do so, and has checked and coordinated the information contained within such submittals with the
requirements of the Work and of the Contract Documents.
3.12.7 The Contractor shall perform no portion of the Work for which the Contract Documents require submittal and
review of Shop Drawings, Product Data, Samples or similar submittals until the respective submittal has been approved
by the Architect.
3.12.8 The Work shall be in accordance with approved submittals except that the Contractor shall not be relieved of
responsibility for deviations from requirements of the Contract Documents by the Architect's approval of Shop
Drawings, Product Data, Samples or similar submittals unless the Contractor has specifically informed the Architect in
writing of such deviation at the time of submittal and (I) the Architect has given written approval to the specific
deviation as a minor change in the Work, or (2) a Change Order or Construction Change Directive has been issued
authorizing the deviation. The Contractor shall not be relieved of responsibility for errors or omissions in Shop
Drawings, Product Data, Samples or similar submittals by the Architect's approval thereof. The Contractor shall
clearly differentiate submittals of products, materials or services, that are deemed to be "as equal" to items
specified in the Contract Documents and the approval of the Architect or Owner of such "as equal" submittals
will not relieve the contractor of the responsibility of the subsequent performance of such items when
incorporated into or provided for the Work.
3.12.9 The Contractor shall direct specific attention, in writing or on resubmitted Shop Drawings, Product Data,
Samples or similar submittals, to revisions other than those requested by the Architect on previous submittals. In the
absence of such written notice the Architect's approval of a resubmission shall not apply to such revisions.
3.12.10 The Contractor shall not be required to provide professional services which constitute the practice of
architecture or engineering unless such services are specifically required by the Contract Documents for a portion of the
Work or unless the Contractor needs to provide such services in order to carry out the Contractor's responsibilities for
construction means, methods, techniques, sequences and procedures. The Contractor shall not be required to provide
professional services in violation of applicable law. If professional design services or certifications by a design
professional related to systems, materials or equipment are specifically required of the Contractor by the Contract
Documents, the Owner and the Architect will specify all performance and design criteria that such services must satisfy.
The Contractor shall cause such services or certifications to be provided by a properly licensed design professional,
whose signature and seal shall appear on all drawings, calculations, specifications, certifications, Shop Drawings and
other submittals prepared by such professional. Shop Drawings and other submittals related to the Work designed or
certified by such professional, if prepared by others, shall bear such professional's written approval when submitted to
the Architect. The Owner and the Architect shall be entitled to rely upon the adequacy, accuracy and completeness of
the services, certifications or approvals performed by such design professionals, provided the Owner and Architect have
specified to the Contractor all performance and design criteria that such services must satisfy. Pursuant to this
Subparagraph 3.12.10, the Architect will review, approve or take other appropriate action on submittals only for the
limited purpose of checking for conformance with information given and the design concept expressed in the Contract
Documents. The Contractor shall not be responsible for the adequacy of the performance or design criteria required by
the Contract Documents.
3.13 USE OF SITE
3.13.1 The Contractor shall confine operations at the site to areas permitted by law, ordinances, permits and the
Contract Documents and shall not unreasonably encumber the site with material or equipment.
3.14 CUTTING AND PATCHING
3.14.1 The Contractor shall be responsible for cutting, fitting or patching required to complete the Work or to make its
parts fit together properly.
3.14.2 The Contractor shall not damage or endanger a portion of the Work or fully or partially completed construction
of the Owner or separate contractors by cutting, patching or otherwise altering such construction, or by excavation. The
Contractor shall not cut or otherwise alter such construction by the Owner or a separate contractor except with written
consent of the Owner and of such separate contractor; such consent shall not be unreasonably withheld. The Contractor
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shall not unreasonably withhold from the Owner or a separate contractor the Contractor's consent to cutting or otherwise
altering the Work.
3.15 CLEANING UP
3.15.1 The Contractor shall keep the premises and surrounding area free form accumulation of waste materials or
rubbish caused by operations under the Contract. At completion of the Work, the Contractor shall remove from and
about the Project waste materials, rubbish, the Contractor's tools, construction equipment, machinery and surplus
materials.
3.15.2 If the Contractor fails to clean up as provided in the Contract Documents, the Owner may do so and the cost
thereof shall be charged to the Contractor.
3.16 ACCESS TO WORK
3.16.1 The Contractor shall provide the Owner and Architect access to the Work in preparation and progress wherever
located and whenever desired within the limitations of safe practice.
3.17 ROYALTIES, PATENTS AND COPYRIGHTS
3.17.1 The Contractor shall pay all royalties and license fees. The Contractor shall defend suits or claims for
infringement of copyrights and patent rights and shall hold the Owner and the Architect harmless from loss on account
thereof, but shall not be responsible for such defense or loss when a particular design, process or product of a particular
manufacturer or manufacturers is required by the Contract Documents or where the copyright violations are contained in
Drawings, Specifications or other documents prepared by the Owner or Architect. However, if the Contractor has reason
to believe that the required design, process or product is an infringement of a copyright or a patent, the Contractor shall
be responsible for such loss unless such information is promptly furnished to the Architect.
3.18 INDEMNIFICATION
3.18.1 To the fullest extent permitted by law and to the extent claims, damages, losses or expenses are not covered by
Project Management Protective Liability insurance purchased by the Contractor in accordance with Paragraph 11.3, the
Contractor shall indemnify and hold harmless the Owner, Architect, Architect's consultants, and agents and employees
of any of them from and against claims, damages, losses and expenses, including, but not limited to attorneys' fees,
arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is
attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the
Work itself), but only to the extent caused by the negligent acts or omissions of the Contractor, a Subcontractor, anyone
directly or indirectly employed by them or anyone for whose acts they may be Iiab]e, regardless of whether or not such
claim, damage, loss or expense is caused in part by a party indemnified hereunder. Such obligation shall not be
construed to negate, abridge, or reduce other rights or obligations of indemnity which would otherwise exist as to a party
or person described in this Paragraph 3.18.
3.18.2 In claims against any person or entity indemnified under this Paragraph 3.18 by an employee of the Contractor,
a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be Iiab]e, the
indemnification obligation under Subparagraph 3.18.1 shall not be limited by a limitation on amount or type of damages,
compensation or benefits payable by or for the Contractor or a Subcontractor under workers' compensation acts,
disability benefit acts or other employee benefit acts.
ARTICLE 4 ADMINISTRATION OF THE CONTRACT
4.1 ARCHITECT
4.1.1 The Architect is the person ]awfully licensed to practice architecture or an entity ]awfully practicing architecture
identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The
term "Architect" means the Architect or the Architect's authorized representative.
4.1.2 Duties, responsibilities and limitations of authority of the Architect as set forth in the Contract Documents shall
not be restricted, modified or extended without written consent of the Owner, Contractor and Architect. Consent shall
not be unreasonably withheld.
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4.1.3 If the employment of the Architect is terminated, the Owner shall employ a new Architect against whom the
Contractor has no reasonable objection and whose status under the Contract Documents shall be that of the former
Architect.
4.2 ARCHITECT'S ADMINISTRATION OF THE CONTRACT
4.2.1 The Architect will provide administration of the Contract as described in the Contract Documents, and will be
an Owner's representative (I) during construction, (2) until final payment is due and (3) with the Owner's concurrence,
from time to time during the one-year period for correction of Work described in Paragraph 12.2. The Architect will
have authority to act on behalf of the Owner only to the extent provided in the Contract Documents, unless otherwise
modified in writing in accordance with other provisions of the Contract.
4.2.2 The Architect, as a representative of the Owner, will visit the site at intervals appropriate to the stage of the
Contractor's operations (1) to become generally familiar with and to keep the Owner informed about the progress and
quality of the portion of the Work completed, (2) to endeavor to guard the Owner against defects and deficiencies in the
Work, and (3) to determine in general if the Work is being performed in a manner indicating that the Work, when fully
completed, will be in accordance with the Contract Documents. However, the Architect will not be required to make
exhaustive or continuous on-site inspections to check the quality or quantity of the Work. The Architect will neither
have control over or charge of, nor be responsible for, the construction means, methods, techniques, sequences or
procedures, or for the safety precautions and programs in connection with the Work, since these are solely the
Contractor's rights and responsibilities under the Contract Documents, except as provided in Subparagraph 3.3.].
4.2.3 The Architect will not be responsible for the Contractor's failure to perform the Work in accordance with the
requirements of the Contract Documents. The Architect will not have control over or charge of and will not be
responsible for acts or omissions of the Contractor, Subcontractors, or their agents or employees, or any other persons or
entities performing portions of the Work.
4.2.4 Communications Facilitating Contract Administration. Except as otherwise provided in the Contract
Documents or when direct communications have been specifically authorized, the Owner and Contractor shall endeavor
to communicate with each other through the Architect about matters arising out of or relating to the Contract.
Communications by and with the Architect's consultants shall be through the Architect. Communications by and with
Subcontractors and material suppliers shall be through the Contractor. Communications by and with separate contractors
shall be through the Owner.
4.2.5 Based on the Architect's evaluations of the Contractor's Applications for Payment, the Architect will review
and certify the amounts due the Contractor and will issue Certificates for Payment in such amounts.
4.2.6 The Architect will have authority to reject Work that does not conform to the Contract Documents. Whenever
the Architect considers it necessary or advisable, the Architect will have authority to require inspection or testing of the
Work in accordance with Subparagraphs 13.5.2 and ]3.5.3, whether or not such Work is fabricated, installed or
completed. However, neither this authority of the Architect nor a decision made in good faith either to exercise or not to
exercise such authority shall give rise to a duty or responsibility of the Architect to the Contractor, Subcontractors,
material and equipment suppliers, their agents or employees, or other persons or entities performing portions of the
Work.
4.2.7 The Architect will review and approve or take other appropriate action upon the Contractor's submittals such as
Shop Drawings, Product Data and Samples, but only for the limited purpose of checking for conformance with
information given and the design concept expressed in the Contract Documents. The Architect's action will be taken
with such reasonable promptness as to cause no delay in the Work or in the activities of the Owner, Contractor or
separate contractors, while allowing sufficient time in the Architect's professional judgment to permit adequate review.
Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other
details such as dimensions and quantities, or for substantiating instructions for installation or performance of equipment
or systems, all of which remain the responsibility of the Contractor as required by the Contract Documents. The
Architect's review of the Contractor's submittals shall not relieve the Contractor of the obligations under Paragraphs 3.3,
3.5 and 3.12. The Architect's review shall not constitute approval of safety precautions or, unless otherwise specifically
stated by the Architect, of any construction means, methods, techniques, sequences or procedures. The Architect's
approval of a specific item shall not indicate approval of an assembly of which the item is a component.
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4.2.8 The Architect will prepare Change Orders and Construction Change Directives, and may authorize minor
changes in the Work as provided in Paragraph 7.4.
4.2.9 The Architect will conduct inspections to determine the date or dates of Substantial Completion and the date of
final completion, will receive and forward to the Owner, for the Owner's review and records, written warranties and
related documents required by the Contract and assembled by the Contractor, and will issue a final Certificate for
Payment upon compliance with the requirements of the Contract Documents.
4.2.10 If the Owner and Architect agree, the Architect will provide one or more project representatives to assist in
carrying out the Architect's responsibilities at the site. The duties, responsibilities and limitations of authority of such
project representatives shall be as set forth in an exhibit to be incorporated in the Contract Documents.
4.2.11 The Architect will interpret and decide matters concerning performance under, and requirements of, the
Contract Documents on written request of either the Owner or Contractor. The Architect's response to such requests will
be made in writing within any time limits agreed upon or otherwise with reasonable promptness. If no agreement is
made concerning the time within which interpretations required of the Architect shall be furnished in compliance with
this Paragraph 4.2, then delay shall not be recognized on account of failure by the Architect to furnish such
interpretations until 15 days after written request is made for them.
4.2.12 Interpretations and decisions of the Architect will be consistent with the intent of and reasonably inferable from
the Contract Documents and will be in writing or in the form of drawings. When making such interpretations and initial
decisions, the Architect will endeavor to secure faithful performance by both Owner and Contractor, will not show
partiality to either and will not be liable for results of interpretations or decisions so rendered in good faith.
4.2.13 The Architect's decisions on matters relating to aesthetic effect will be final if consistent with the intent
expressed in the Contract Documents.
4.3 CLAIMS AND DISPUTES
4.3.1 Definition. A Claim is a demand or assertion by one of the parties seeking, as a matter of right, adjustment or
interpretation of Contract terms, payment of money, extension of time or other relief with respect to the terms of the
Contract. The term "Claim" also includes other disputes and matters in question between the Owner and Contractor
arising out of or relating to the Contract. Claims must be initiated by written notice. The responsibility to substantiate
Claims shall rest with the party making the Claim.
4.3.2 Time Limits on Claims. Claims by either party must be initiated within 21 days after occurrence of the event
giving rise to such Claim or within 21 days after the claimant first recognizes the condition giving rise to the Claim,
whichever is later. Claims must be initiated by written notice to the Architect and the other party.
4.3.3 Continuing Contract Performance. Pending final resolution of a Claim except as otherwise agreed in writing or
as provided in Subparagraph 9.7.1 and Article 14, the Contractor shall proceed diligently with performance of the
Contract and the Owner shall continue to make payments in accordance with the Contract Documents, including 50% of
the cost of the disputed Work pending resolution in accordance with the terms and processes defined in the
"Dispute Resolution" articles of the Agreement with the Owner..
4.3.4 Claims for Concealed or Unknown Conditions. If conditions are encountered at the site which are (I)
subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Contract
Documents or (2) unknown physical conditions of an unusual nature, which differ materially from those ordinarily found
to exist and generally recognized as inherent in construction activities of the character provided for in the Contract
Documents, then notice by the observing party shall be given to the other party promptly before conditions are disturbed
and in no event later than 21 days after first observance of the conditions. The Architect will promptly investigate such
conditions and, if they differ materially and cause an increase or decrease in the Contractor's cost of, or time required
for, performance of any part of the Work, will recommend an equitable adjustment in the Contract Sum or Contract
Time, or both. If the Architect determines that the conditions at the site are not materially different from those indicated
in the Contract Documents and that no change in the terms of the Contract is justified, the Architect shall so notify the
Owner and Contractor in writing, stating the reasons. Claims by either party in opposition to such determination must be
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made within 21 days after the Architect has given notice of the decision. If the conditions encountered are materially
different, the Contract Sum and Contract Time shall be equitably adjusted, but if the Owner and Contractor cannot agree
on an adjustment in the Contract Sum or Contract Time, the adjustment shall be referred to the Architect for initial
determination, subject to further proceedings pursuant to Paragraph 4.4.
4.3.5 Claims for Additional Cost. If the Contractor wishes to make Claim for an increase in the Contract Sum,
written notice as provided herein shall be given before proceeding to execute the Work. Prior notice is not required for
Claims relating to an emergency endangering life or property arising under Paragraph 10.6.
4.3.6 If the Contractor believes additional cost is involved for reasons including but not limited to (I) a written
interpretation from the Architect, (2) an order by the Owner to stop the Work where the Contractor was not at fault, (3) a
written order for a minor change in the Work issued by the Architect, (4) failure of payment by the Owner,
(5) termination of the Contract by the Owner, (6) Owner's suspension or (7) other reasonable grounds, Claim shall be
filed in accordance with this Paragraph 4.3.
4.3.7 CLAIMS FOR ADDITIONAL TIME
4.3.7.1 If the Contractor wishes to make Claim for an increase in the Contract Time, written notice as provided herein
shall be given. The Contractor's Claim shall include an estimate of cost and of probable effect of delay on progress of
the Work. In the case of a continuing delay only one Claim is necessary.
4.3.7.2 If adverse weather conditions are the basis for a Claim for additional time, such Claim shall be documented by
data substantiating that weather conditions were abnormal for the period of time, could not have been reasonably
anticipated and had an adverse effect on the scheduled construction.
4.3.8 Injury or Damage to Person or Property. If either party to the Contract suffers injury or damage to person or
property because of an act or omission of the other party, or of others for whose acts such party is legally responsible,
written notice of such injury or damage, whether or not insured, shall be given to the other party within a reasonable time
not exceeding 21 days after discovery. The notice shall provide sufficient detail to enable the other party to investigate
the matter.
4.3.9 If unit prices are stated in the Contract Documents or subsequently agreed upon, and if quantities originally
contemplated are materially changed in a proposed Change Order or Construction Change Directive so that application
of such unit prices to quantities of Work proposed will cause substantial inequity to the Owner or Contractor, the
applicable unit prices shall be equitably adjusted.
4.3.10 Claims for Consequential Damages. The Contractor and Owner waive Claims against each other for
consequential damages arising out of or relating to this Contract. This mutual waiver includes:
.1 damages incurred by the Owner for rental expenses, for losses of use, income, profit, financing, business
and reputation, and for loss of management or employee productivity or of the services of such person; and
.2 damages incurred by the Contractor for principal office expenses, including the compensation of personnel
stationed there, for losses of financing, business and reputation, and for loss of profit except anticipated
profit arising directly from the Work.
This mutual waiver is applicable, without limitation, to all consequential damages due to either party's termination in
accordance with Article 14. Nothing contained in this Subparagraph 4.3.10 shall be deemed to preclude an award of
liquidated direct damages, when applicable, in accordance with the requirements of the Contract Documents.
4.4 RESOLUTION OF CLAIMS AND DISPUTES
4.4.1 Resolution of claims and disputes shall be in accordance with the terms and processes
defined in the "Dispute Resolution" articles of the Agreement with the Owner.DecisioR of f.rchitect.
Claims, iRclHdiRg those allegiRg aR error or omissioR by the Architect but e)(clHdiRg those arisiRg HRder Paragraphs 10.3
through 10.5, shall be referred iRitially to the ,'\rchitect for deoisioR. ,A.R iRitial decisioR by the ,A.rchitect shall be
required as a cORditioR precedeRt to mediatiOl-l, arbitratioR or IitigatioR of all Claims betweeR the CORtractor aRd OWRer
arisiRg prior to the date fiRal paymeRt is dHe, uRless 30 days have passed after the Claim has beeR referred to the
Architect with RO decisioR ha'/ing beeR reRdered by the Architect. The ,'\rchitect will not decide disputes betweeR the
CORtractor aRd persoRs or eRtities other thaR the OViRer.
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4.4.2 THe Architect will re'iiew Claims and vlitHin ten days of the receipt of the Claim take one or more of the
follo':ling actions: (I) reql:lest additional sl:lpporting data from the claimant or a response '.vith sl:lpporting data from the
other party, (2) reject tHe Claim in whole or in part, (3) approve the Claim, (1) suggest a compromise, or (5) advise the
parties that the ,^.rchitect is I:Inable to resolve the Claim if the ,^.rcHitect lacks sl:lfficient information to evall:late the merits
of tHe Claim or if the ll.rcHitect cORcJudes that, in the ,^.rchitect's sole discretioR, it wOl:lld be inappropriate for the
.^.rchitect to resolve the Claim.
4.4.3 In evaluating Claims, the ArCHitect may, bl:lt SHall not be obligated to, consl:llt with or seek information from
either party or from persons ..,litH special knowledge or expertise who may assist tHe f.rchitect iR reRdering a decision.
The ,\rchitect may request the Owner to al:ltHorize reteRtion of SI:lCH persons at tHe OViFler's expense.
4.4.4 If the ,\rchitect reql:lests a party to provide a response to a Claim or to furnish additioRal sl:lpporting data, such
party SHall respond, within ten days after receipt of sl:lch reql:lest, and SHall either provide a response OR tHe reql:lested
supporting data, advise tHe j\rchitect wHeR the respoRse or sl:lpporting data ,:/ill be fmRished or advise tHe ArCHitect that
no sl:lpportiRg data will be furniSHed. UpOR receipt of the respoRse or sl:lpportiRg data, if aRY, the .^.rchitect will either
reject or approve the Claim in whole or in part.
4.4.5 The ,\rcHitect will approve or reject Claims by ''''TitteR decisioR, WHiCH shall state the reasons tHerefor and
which shall Ratify the parties of any changes in tHe Contract Sl:Im or Contract Time or botH. THe appronl or rejection of
a Claiffi by the ,\rchitect SHall be final and biRding on the parties bl:lt subject to ffiediation and arbitration.
4.4.6 WHen a '.'TitteR decision of the ,^.rcHitect states that (I) the decisioR is final bl:lt subject to mediation and
arbitration aRd (2) a deffiaRd for arbitration of a Claiffi covered by such decision ffil:lSt be made withiR 30 days after the
date on whiCH the party ffiaking the demand recei'les tHe final written decision, tHen faill:lre to deffiand arbitration within
said 30 days' period shall resl:llt iR the ,^.rcHitect's decision becoming final and binding I:IpOR the OWRer and CORtractor.
If the i\rchitect reRders a decision after arbitration proceedings Have been initiated, SUCH decision may be entered as
evidence, bl:lt shall ROt supersede arbitration proceedings I:Inless the decisioR is acceptable to all parties conoemed.
4.4.7 Upon receipt of a Claiffi agaiRst tHe Contractor or at aRY tiffie thereafter, the ,\rcHitect or tHe OWRer may, bl:lt is
not obligated to, Ratify the surety, if any, of the natme and amol:lnt of tHe Claiffi. If tHe Claiffi relates to a possibility of a
Contractor's default, the Architect or the Owner ffiay, bl:lt is not obligated to, notify the surety aRd reql:lest the smety's
assistaRce in resolving the cORtroversy.
4.4.8 If a Claiffi relates to or is the sl:lbject of a ffiechanic's lien, the party asserting SI:lCH Claim ffiay proceed in
accordance with applicable la'.v to comply ':litH the lieR notice or filing deadliRes prior to resoll:ltion of the Claiffi by the
Architect, by mediatioR or by arbitratioR.
4.5 MEDIATION
4.5.1 Mediation shall be in accordance with the terms and processes defined in the "Dispute
Resolution" articles of the Agreement with the Owner. Any Claiffi arising Ol:lt of or related to tHe Contract,
except Claims relatiRg to aesthetic effect aRd except those waived as pro'/ided for in Sl:Ibparagraphs 1.3.10, 9.10.1 and
9.10.5 shall, after initial decision by the Mchiteot or 30 days after sl:lbffiissioR of tHe Claim to the Mchitect, be sl:lbject to
mediatioR as a cORdition precedent to arbitratioR or the institl:ltion of legal or eql:litable proceediRgs by either party.
4.5.2 THe parties shall endeavor to resolve their Claiffis by ffiediation WHich, unless the parties ffiutl:lally agree
otHerwise, shall be in accordance with tHe Constmction Indl:lstry Mediation Rl:lles of the ,^.ffierican j\rbitration
.\ssociation cl:lrrently iR effect. ReqHest for ffiediation shall be filed in writing with the other party to the Contract and
with tHe AmericaR ,^.rbitration Association. The reql:lest ffiay be ffiade cORcurrently with the filing of a deffiand for
arbitration but, in SHch event, ffiediation shall proceed in advance of arbitration or legal or equitable proceedings, WHich
shall be stayed pending ffiediation for a period of 60 days froffi the date of filing, I:Inless stayed for a longer period by
agreeffieRt of tHe parties or comt order. .
4.5.3 THe parties shall share the ffiediator's fee and any filing f-ees equally. The ffiediation shall be held iR the place
where the Project is located, unless anotHer 10catioR is ffiutl:lally agreed HpOR. .^.greeffients reaCHed in mediation SHall be
enforceable as settleffient agreements in any court ha'/ing jmisdiction thereof.
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4.6 ARBITRATION
4.6.1 Arbitration shall be in accordance with the terms and processed defined in the "Dispute
Resolution" articles of the Agreement with the Owner..^.ny Claim arising OHt of or related to the Contract,
except Claims relating to aesthetic effect and except those waived as provided for in SHbparagraphs 1.3.10, 9.10.1, and
9.10.5, shall, after decision by the ;\rchitect or 30 days after submission of the Claim to the f.rchitect, be subject to
arbitration. Prior to arbitration, the parties shall endeavor to resolve disputes by mediation in accordance with the
provisions of Paragraph 1.5.
4.6.2 Claims not resolved by mediation shall be decided by arbitration which, unless parties rrmtually agree
otherwise, shall be in accordance with the Constmction IndHstry f.rbitration Rules of the ;\merican :\rbitration
Association cHrrently in effect. The demand for arbitration shall be filed in writing with the other party to the Contract
and with the :\merican .^.rbitration .^.ssociation, and a copy shall be filed with the Architect.
4.6.3 .^. demand for arbitration shall be made within the time limits specified in Subparagraphs 1.1.6 and 1.6.1 as
applicable, and in other cases within a reasonable time after the Claim has arisen, and in no eyent shall it be made after
the date when institHtion of legal or eqHitable proceedings based on sHch Claim '.voHld be barred by the applicable statute
of limitations as determined pmsuant to Paragraph 13.7.
4.6.4 LimitatioN on COl'lsolidation or Joinder. No arbitration arising out of or relating to the Contract shall include, by
consolidation or joinder or in any other manner, the .^.rchitect, the .^.rchitect's employees or consultants, except by
written consent containing specific reference to the .^.greement and signed by the .^.rchitect, O'Nner, Contractor and any
other person or entity sought to be joined. No arbitratioN shall inclHde, by consolidation or joinder or in any other
manner, parties other than the OWRer, Contractor, a separate contractor as described in .\rticle 6 aRd other persons
substantially involved in a common question of fact or law whose presence is required if complete relief is to be
accorded in arbitration. No person or entity other than the OWRer, Contractor or a separate contractor as described in
Article 6 shall be included as an origiRal third party or additional third party to an arbitration v/hose interest or
responsibility is insubstantial. ConseRt to arbitration involving an additional person or entity shall ROt constitHte consent
to arbitration of a Claim not described therein or with a person or entity not named or described therein. The foregoing
agreement to arbitrate and other agreements to arbitrate with an additional person or entity dHly consented to by parties
to the .\greement shall be specifically enforceable HIlder applicable law in any court having jurisdiction thereof.
4.6.5 Claims and Timely .^.ssertion of Claims. The party filing a notice of demand for arbitration mHst assert in the
demand all Claims then leno'Nn to that party on which arbitration is permitted to be demanded.
4.6.6 JHdgment on Final .^. ward. The award rendered by the arbitrator or arbitrators shall be final, aRd jl:ldgment may
be entered upon it iN accordance with applicable lav/ in any COHrt haying jurisdiction thereof.
ARTICLE 5 SUBCONTRACTORS
5.1 DEFINITIONS
5.1.1 A Subcontractor is a person or entity who has a direct contract with the Contractor to perform a portion of the
Work at the site. The term "Subcontractor" is referred to throughout the Contract Documents as if singular in number
and means a Subcontractor or an authorized representative of the Subcontractor. The term "Subcontractor" does not
include a separate contractor or subcontractors of a separate contractor.
5.1.2 A Sub-Subcontractor is a person or entity who has a direct or indirect contract with a Subcontractor to perform
a portion of the Work at the site. The term "Sub-subcontractor" is referred to throughout the Contract Documents as if
singular in number and means a Sub-subcontractor or an authorized representative of the Sub-subcontractor.
5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK
5.2.1 Unless otherwise stated in the Contract Documents or the bidding requirements, the Contractor, as soon as
practicable after award of the Contract, shall furnish in writing to the Owner through the Architect the names of persons
or entities (including those who are to furnish materials or equipment fabricated to a special design) proposed for each
principal portion of the Work. The Architect will promptly reply to the Contractor in writing stating whether or not the
Owner or the Architect, after due investigation, has reasonable objection to any such proposed person or entity. Failure
of the Owner or Architect to reply promptly shall constitute notice of no reasonable objection.
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5.2.2 The Contractor shall not contract with a proposed person or entity to whom the Owner or Architect has made
reasonable and timely objection. The Contractor shall not be required to contract with anyone to whom the Contractor
has made reasonable objection.
5.2.3 If the Owner or Architect has reasonable objection to a person or entity proposed by the Contractor, the
Contractor shall propose another to whom the Owner or Architect has no reasonable objection. If the proposed but
rejected Subcontractor was reasonably capable of performing the Work, the Contract Sum and Contract Time shall be
increased or decreased by the difference, if any, occasioned by such change, and an appropriate Change Order shall be
issued before commencement of the substitute Subcontractor' s Work. However, no increase in the Contract Sum or
Contract Time shall be allowed for such change unless the Contractor has acted promptly and responsively in submitting
names as required.
5.2.4 The Contractor shall not change a Subcontractor, person or entity previously selected if the Owner or Architect
makes reasonable objection to such substitute.
5.3 SUBCONTRACTUAL RELATIONS
5.3.1 By appropriate agreement, written where legally required for validity, the Contractor shall require each
Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to the Contractor by terms of
the Contract Documents, and to assume toward the Contractor all the obligations and responsibilities, including the
responsibility for safety of the Subcontractor's Work, which the Contractor, by these Documents, assumes toward the
Owner and Architect. Each subcontract agreement shall preserve and protect the rights of the Owner and Architect
under the Contract Documents with respect to the Work to be performed by the Subcontractor so that subcontracting
thereof will not prejudice such rights, and shall allow to the Subcontractor, unless specifically provided otherwise in the
subcontract agreement, the benefit of all rights, remedies and redress against the Contractor that the Contractor, by the
Contract Documents, has against the Owner. Where appropriate, the Contractor shall require each Subcontractor to enter
into similar agreements with Sub-subcontractors. The Contractor shall make available to each proposed Subcontractor,
prior to the execution of the subcontract agreement, copies of the Contract Documents to which the Subcontractor will be
bound, and, upon written request of the Subcontractor, identify to the Subcontractor terms and conditions of the
proposed subcontract agreement which may be at variance with the Contract Documents. Subcontractors will similarly
make copies of applicable portions of such documents available to their respective proposed Sub-subcontractors.
5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS
5.4.1 Each subcontract agreement for a portion of the Work is assigned by the Contractor to the Owner provided that:
.1 assignment is effective only after termination of the Contract by the Owner for cause pursuant to
Paragraph 14.2 and only for those subcontract agreements which the Owner accepts by notifying the
Subcontractor and Contractor in writing; and
.2 assignment is subject to the prior rights of the surety, if any, obligated under bond relating to the
Contract.
5.4.2 Upon such assignment, if the Work has been suspended for more than 30 days, the Subcontractor's
compensation shall be equitably adjusted for increases in cost resulting from the suspension.
ARTICLE 6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS
6.1 OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS
6.1.1 The Owner reserves the right to perform construction or operations related to the Project with the Owner's own
forces, and to award separate contracts in connection with other portions of the Project or other construction or
operations on the site under Conditions of the Contract identical or substantially similar to these including those portions
related to insurance and waiver of subrogation. If the Contractor claims that delay or additional cost is involved because
of such action by the Owner, the Contractor shall make such Claim as provided in Paragraph 4.3.
6.1.2 When separate contracts are awarded for different portions of the Project or other construction or operations on
the site, the term "Contractor" in the Contract Documents in each case shall mean the Contractor who executes each
separate Owner-Contractor Agreement.
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6.1.3 The Owner shall provide for coordination of the acti vities of the Owner's own forces and of each separate
contractor with the Work of the Contractor, who shall cooperate with them. The Contractor shall participate with other
separate contractors and the Owner in reviewing their construction schedules when directed to do so. The Contractor
shall make any revisions to the construction schedule deemed necessary after a joint review and mutual agreement. The
construction schedules shall then constitute the schedules to be used by the Contractor, separate contractors and the
Owner until subsequently revised.
6.1.4 Unless otherwise provided in the Contract Documents, when the Owner performs construction or operations
related to the Project with the Owner's own forces, the Owner shall be deemed to be subject to the same obligations and
to have the same rights which apply to the Contractor under the Conditions of the Contract, including, without excluding
others, those stated in Article 3, this Article 6 and Articles 10, II and 12.
6.2 MUTUAL RESPONSIBILITY
6.2.1 The Contractor shall afford the Owner and separate contractors reasonable opportunity for introduction and
storage of their materials and equipment and performance of their activities, and shall connect and coordinate the
Contractor's construction and operations with theirs as required by the Contract Documents.
6.2.2 If part of the Contractor's Work depends for proper execution or results upon construction or operations by the
Owner or a separate contractor, the Contractor shall, prior to proceeding with that portion of the Work, promptly report
to the Architect apparent discrepancies or defects in such other construction that would render it unsuitable for such
proper execution and results. Failure of the Contractor so to report shall constitute an acknowledgment that the Owner's
or separate contractor's completed or partially completed construction is fit and proper to receive the Contractor's Work,
except as to defects not then reasonably discoverable.
6.2.3 The Owner shall be reimbursed by the Contractor for costs incurred by the Owner which are payable to a
separate contractor because of delays, improperly timed activities or defective construction of the Contractor. The
Owner shall responsible to the Contractor for costs incurred by the Contractor because of delays, improperly timed
activities, damage to the Work or defective construction of a separate contractor.
6.2.4 The Contractor shall promptly remedy damage wrongfully caused by the Contractor to completed or partially
completed construction or to property of the Owner or separate contractors as provided in Subparagraph 10.2.5.
6.2.5 The Owner and each separate contractor shall have the same responsibilities for cutting and patching as are
described for the Contractor in Subparagraph 3.14.
6.3 OWNER'S RIGHT TO CLEAN UP
6.3.1 If a dispute arises among the Contractor, separate contractors and the Owner as to the responsibility under their
respective contracts for maintaining the premises and surrounding area free from waste materials and rubbish, the Owner
may clean up and the Architect will allocate the cost among those responsible.
ARTICLE 7 CHANGES IN THE WORK
7.1 GENERAL
7.1.1 Changes in the Work may be accomplished after execution of the Contract, and without invalidating the
Contract, by Change Order, Construction Change Directive or order for a minor change in the Work, subject to the
limitations stated in this Article 7 and elsewhere in the Contract Documents.
7.1.2 A Change Order shall be based upon agreement among the Owner, Contractor and Architect; a Construction
Change Directive requires agreement by the Owner and Architect and mayor may not be agreed to by the Contractor; an
order for a minor change in the Work may be issued by the Architect alone.
7.1.3 Changes in the Work shall be performed under applicable provisions of the Contract Documents, and the
Contractor shall proceed promptly, unless otherwise provided in the Change Order, Construction Change Directive or
order for a minor change in the Work.
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7.2 CHANGE ORDERS
7.2.1 A Change Order is a written instrument prepared by the Architect and signed by the Owner, Contractor and
Architect, stating their agreement upon all of the following:
.1 change in the Work;
.2 the amount of the adjustment, if any in the Contract Sum; and
.3 the extent of the adjustment, if any, in the Contract Time.
7.2.2 Methods used in determining adjustments to the Contract Sum may include those listed in Subparagraph 7.3.3.
7.3 CONSTRUCTION CHANGE DIRECTIVES
7.3.1 A Construction Change Directive is a written order prepared by the Architect and signed by the Owner and
Architect, directing a change in the Work prior to agreement on adjustment, if any, in the Contract Sum or Contract
Time, or both. The Owner may by Construction Change Directive, without invalidating the Contract, order changes in
the Work within the general scope of the Contract consisting of additions, deletions 0 other revisions, the Contract Sum
and Contract time being adjusted accordingly.
7.3.2 A Construction Change Directive shall be used in the absence of total agreement on the terms of a Change
Order.
7.3.3 If the Construction Change Directive provides for an adjustment to the Contract Sum, the adjustment shall be
based on one of the following methods:
.1 mutual acceptance of a lump sum properly itemized and supported by sufficient substantiating data to
permit evaluation;
.2 unit prices stated in the Contract Documents or subsequently agreed upon;
.3 cost to be determined in a manner agreed upon by the parties and a mutually acceptable fixed or
percentage fee; or
.4 as provided in Subparagraph 7.3.6.
7.3.4 Upon receipt of a Construction Change Directive, the Contractor shall promptly proceed with the change in the
Work involved and advise the Architect of the Contractor's agreement or disagreement with the method, if any, provided
in the Construction Change Directive for determining the proposed adjustment in the Contract Sum or Contract Time.
7.3.5 A Construction Change Directive signed by the Contractor indicates the agreement of the Contractor therewith,
including adjustment in Contract Sum and Contract Time or the method for determining them. Such agreement shall be
effective immediately and shall be recorded as a Change Order.
7.3.6 If the Contractor does not respond promptly or disagrees with the method for adjustment in the Contract Sum,
the method and the adjustment shall be determined by the Architect on the basis of reasonable expenditures and savings
of those performing the Work attributable to the change, including, in case of an increase in the Contract Sum, a
reasonable allowance for overhead and profit. In such case, and also under Clause 7.3.3.3, the Contractor shall keep and
present, in such form as the Architect may prescribe, an itemized accounting together with appropriate supporting data.
Unless otherwise provided in the Contract Documents, costs for the purposes of this Subparagraph 7.3.6 shall be limited
to the following:
.1 costs of labor, including social security, old age and unemployment insurance, fringe benefits required by
agreement or custom, and workers' compensation insurance;
.2 costs of materials, supplies and equipment, including cost of transportation, whether incorporated or
consumed;
.3 rental costs of machinery and equipment, exclusive of hand tools, whether rented from the Contractor or
others;
.4 costs of premiums for all bonds and insurance, permit fees, and sales, use or similar taxes related to the
Work; and
.5 additional costs of supervision and field office personnel directly attributable to the change.
7.3.7 The amount of credit to be allowed by the Contractor to the Owner for a deletion or change which results in a
net decrease in the Contract Sum shall be actual net cost as confirmed by the Architect. When both additions and credits
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covering related Work or substitutions are involved in a change, the allowance for overhead and profit shall be figured
on the basis of net increase, if any, with respect to that change.
7.3.8 Pending final determination of the total cost of a Construction Change Directive to the Owner, amounts not in
dispute for such changes in the Work shall be included in Applications for Payment accompanied by a Change Order
indicating the parties' agreement with part or all of such costs. For any portion of such cost that remains in dispute, the
Architect will make an interim determination for purposes of monthly certification for payment for those costs. That
determination of cost shall adjust the Contract Sum on the same basis as a Change Order, subject to the right of either
party to disagree and assert a claim in accordance with Article 4.
7.3.9 When the Owner and Contractor agree with the determination made by the Architect concerning the
adjustments in the Contract Sum and Contract Time, or otherwise reach agreement upon the adjustments, such agreement
shall be effective immediately and shall be recorded by preparation and execution of an appropriate Change Order.
7.4 MINOR CHANGES IN THE WORK
7.4.1 The Architect will have authority to order minor changes in the Work not involving adjustment in the Contract
Sum or extension of the Contract Time and not inconsistent with the intent of the Contract Documents. Such changes
shall be effected by written order and shall be binding on the Owner and Contractor. The Contractor shall carry out such
written orders promptly.
ARTICLE 8 TIME
8.1 DEFINITIONS
8.1.1 Unless otherwise provided, Contract Time is the period of time, including authorized adjustments, allotted in
the Contract Documents for Substantial Completion of the Work.
8.1.2 The date of commencement of the Work is the date established in the Agreement.
8.1.3 The date of Substantial Completion is the date certified by the Architect in accordance with Paragraph 9.8.
8.1.4 The term "day" as used in the Contract Documents shall mean calendar day unless otherwise specifically
defined.
8.2 PROGRESS AND COMPLETION
8.2.1 Time limits stated in the Contract Documents are of the essence of the Contract. By executing the Agreement
the Contractor confirms that the Contract Time is a reasonable period for performing the Work.
8.2.2 The Contractor shall not knowingly, except by agreement or instruction of the Owner in writing, prematurely
commence operations on the site or elsewhere prior to the effective date of insurance required by Article 11 to be
furnished by the Contractor and Owner. The date of commencement of the Work shall not be changed by the effective
date of such insurance. Unless the date of commencement is established by the Contract Documents or a notice to
proceed given by the Owner, the Contractor shall notify the Owner in writing not less than five days or other agreed
period before commencing the Work to permit the timely filing of mortgages, mechanic's liens and other security
interests.
8.2.3 The Contractor shall proceed expeditiously with adequate forces and shall achieve Substantial Completion
within the Contract Time.
8.2.4 If the Owner requires or causes the Contractor to accelerate the Schedule of the Work or to change the
sequence in which the Work shall be performed, and such acceleration or change requires the Contractor to
incorporate materials or equipment in the Work before measures can be undertaken by the Contractor to protect
such Work, the Contractor shall give prompt written notice of such to the Owner. Thereafter, should the Owner
direct the Contractor to proceed in the absence of appropriate measures to protect the Work, the Owner (1)
waives claims for any damages resulting therefrom, and (2) shall defend, indemnify and hold harmless the
Contractor, its Subcontractors and Sub-subcontractors and the agents, officers, directors and employees of each
of them, from and against any and all direct claims, damages, losses, costs and expenses, including but not limited
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to attorneys' fees, losses, costs and expenses incurred in connection with any testing, remediation, and dispute
resolution process, arising out of or relating to the Owner's acceleration of the Schedule of the Work or change in
the sequence of the Work.
8.3 DELAYS AND EXTENSIONS OF TIME
8.3.1 If the Contractor is delayed at a time in the commencement or progress of the Work by an act or neglect of the
Owner or Architect, or of an employee of either, or of a separate contractor employed by the Owner, or by changes
ordered in the Work, or by labor disputes, fire, unusual delay in deliveries, unavoidable casualties or other causes beyond
the Contractor's control, or by delay authorized by the Owner pending mediation and arbitration, or by other causes
which the Architect determiRes may justify delay, then the Contract Time shall be extended by Change Order for such
reasonable time as the Architect, Owner and Contractor may determine.
8.3.2 Claims relating to time shall be made in accordance with applicable provisions of Paragraph 4.3.
8.3.3 This Paragraph 8.3 does not preclude recovery of damages for delay by either party under other provisions of
the Contract Documents.
ARTICLE 9 PAYMENTS AND COMPLETION
9.1 CONTRACT SUM
9.1.1 The Contract Sum is stated in the Agreement and, including authorized adjustments, is the total amount payable
by the Owner to the Contractor for performance of the Work under the Contract Documents.
9.2 SCHEDULE OF VALUES
9.2.1 Before the first Application for Payments, the Contractor shall submit to the Architect Owner a schedule of
values allocated to various portions of the Work, prepared in such form and supported by such data to substantiate its
accuracy as the Architect Owner may require. This schedule, unless objected to by the .^.rehitect, Owner, shall be used
as a basis for reviewing the Contractor's Applications for Payment.
9.3 APPLICATIONS FOR PAYMENT (Refer to Owner's Agreement)
9.3.1 At least ten days before the date established for each progress payment, the Contractor shall submit to the
}\rchitect Owner an itemized Application for Payment for operations completed in accordance with the schedule of
values. Such application shall be notarized, if required, and supported by such data substantiating the Contractor's right
to payment as the Owner or .^.rchitect may require, sHeh as copies of reqHisitioFls from SubcoRtractors aFld material
suppliers, aFld retlectiFlg retaiRage if pro'iided for iR the CORtract DoeHmeRts.
9.3.1.1 As provided in Subparagraph 7.3.8, such applications may include requests for payment on account of
changes in the Work which have been properly authorized by Construction Change Directives, or by interim
determinations of the Architect, but not yet included in Change Orders.
9.3.1.2 Such applications may not include requests for payment for portions of the Work for which the Contractor
does not intend to pay to a Subcontractor or material supplier, unless such Work has been performed by others whom the
Contractor intends to pay.
9.3.2 Unless otherwise provided in the Contract Documents, payments shall be made on account of materials and
equipment delivered and suitably stored at the site for subsequent incorporation in the Work. If approved in advance by
the Owner, payment may similarly be made for materials and equipment suitably stored off the site at a location agreed
upon in writing. Payment for materials and equipment stored on or off the site shall be conditioned upon compliance by
the Contractor with procedures satisfactory to the Owner to establish the Owner's title to such materials and equipment
or otherwise protect the Owner's interest, and shall include the costs of applicable insurance, storage and transportation
to the site for such materials and equipment stored off the site.
9.3.3 The Contractor warrants that title to all Work covered by an Application for Payment will pass to the Owner no
later than the time of payment. The Contractor further warrants that upon submittal of an Application for Payment all
Work for which Certificates of Payment have been previously issued and payments received from the Owner shall, to the
best of the Contractor's knowledge, information and belief, be free and clear of liens, claims, security interests or
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encumbrances in favor of the Contractor, Subcontractors, material suppliers, or other persons or entities making a claim
by reason of having provided labor, materials and equipment relating to the Work.
9.4 CERTIFICATES FOR PAYMENT (Refer to Owner's Agreement)
9.4.1 The Architect Owner will, within seven days after receipt of the Contractor's Application for Payment, either
issue to the Owner a Certificate for P payment, with a copy to the Contractor, for sHch amount as the ,^.rchitect
determines is properly dHe, or notify the Contractor and Owner in writing of the Architect's Owner's reasons for
withholding certification payment in whole or in part as provided in Subparagraph 9.5.1.
9.4.2 The issuance of a Certificate for Payment will constitute a representation by the Architect to the Owner, based
on the Architect's evaluation of the Work and the data comprising the Application for Payment, that the Work has
progressed to the point indicated and that, to the best of the Architect's knowledge, information and belief, the quality of
the Work is in accordance with the Contract Documents. The foregoing representations are subject to an evaluation of
the Work for conformance with the Contract Documents upon Substantial Completion, to results of subsequent tests and
inspections, to correction of minor deviations from the Contract Documents prior to completion and to specific
qualifications expressed by the Architect. The issuance of a Certificate for Payment will further constitute a
representation that the Contractor is entitled to payment in the amount certified. However, the issuance of a Certificate
for Payment will not be a representation that the Architect has (I) made exhaustive or continuous on-site inspections to
check the quality or quantity of the Work, (2) reviewed construction means, methods, techniques, sequences or
procedures, (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data
requested by the Owner to substantiate the Contractor's right to payment, or (4) made examination to ascertain how or
for what purpose the Contractor has used money previously paid on account of the Contract Sum.
9.5 DECISIONS TO WITHHOLD CERTIFICATION (Refer to Owner's Agreement)
9.5.1 The ,^.rchitect Owner may withhold a Certificate for P payment in whole or in part, to the extent reasonably
necessary to protect the Owner, if in the Architect's Owner's opinion the representations to the Owner required by
Subparagraph 9.4.2 cannot be made. If the f.rchitect Owner is unable to certify payment in the amount of the
Application, the Architect Owner will notify the Contractor and Ov,'ner as provided in Subparagraph 9.4.1. If the
Contractor and Architect Owner cannot agree on a revised amount, the Architect Owner will promptly issue a
Certificate of P payment for the amount for which the Architect Owner is able to make such representations te-the
GweeF. The ,^.rchitect Owner may also withhold a Certificate for P payment or, because of subsequently discovered
evidence, may nullify the whole or a part of a Certificate an application for Payment previously issued, to such extent as
may be necessary in the Architect's Owner's opinion to protect the Owner from loss for which the Contractor is
responsible, including loss resulting from acts and omissions described in Subparagraph 3.3.2, because of
.1 defecti ve Work not remedied;
.2 third party claims filed or reasonable evidence indicating probably filing of such claims unless security
acceptable to the Owner is provided by the Contractor;
.3 failure of the Contractor to make payments properly to Subcontractors or for labor, materials or equipment;
.4 reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum;
.5 damage to the Owner or another contractor;
.6 reasonable evidence that the Work will not be completed within the Contract Time, and that the unpaid
balance would not be adequate to cover actual or liquidated damages for the anticipated delay; or
.7 persistent failure to carry out the Work in accordance with the Contract Documents.
9.5.2 When the above reasons for withholding certification are removed, certification will be made for amounts
previously withheld.
9.6 PROGRESS PAYMENTS (Refer to Owner's Agreement)
9.6.1 ,^.fter the ,'\rchitect has issHed a Certificate for Payment, The Owner shall make payment in the manner and
within the time provided in the Contract Documents, and shall so notify the Architect.
9 .6.2 The Contractor shall promptly pay each Subcontractor, upon receipt of payment from the Owner, out of the
amount paid to the Contractor on account of such Subcontractor's portion of the Work, the amount to which said
Subcontractor is entitled, reflecting percentages actually retained from payments to the Contractor on account of such
Subcontractor's portion of the Work. The Contractor shall, by appropriate agreement with each Subcontractor, require
each Subcontractor to make payments to Sub-subcontractors in a similar manner.
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9.6.3 The Architect will, on request, furnish to a Subcontractor, if practicable, information regarding percentages of
completion or amounts applied for by the Contractor and action taken thereon by the Architect and Owner on account of
portions of the Work done by such Subcontractor.
9.6.4 Neither the Owner nor Architect shall have an obligation to payor to see the payment of money to a
Subcontractor except as may otherwise be required by law.
9.6.5 Payment to material suppliers shall be treated in a manner similar to that provided in Subparagraph 9.6.2, 9.6.3
and 9.6.4.
9.6.6 A Certificate for Payment, a progress payment, or partial or entire use or occupancy of the Project by the Owner
shall not constitute acceptance of Work not in accordance with the Contract Documents.
9.6.7 Unless the Contractor provides the Owner with a payment bond in the full penal sum of the Contract Sum,
payments received by the Contractor for Work properly performed by Subcontractors and suppliers shall be held by the
Contractor for those Subcontractors or suppliers who performed Work or furnished materials, or both, under contract
with the Contractor for which payment was made by the Owner. Nothing contained herein shall require money to be
placed in a separate account and not commingled with money of the Contractor, shall create any fiduciary liability or tort
liability on the part of the Contractor for breach of trust or shall entitle any person or entity to an award of punitive
damages against the Contractor for breach of the requirements of this provision.
9.7 FAILURE OF PAYMENT
9.7.1 If the Architect does Rot issue a Certificate for PaymeRt, through RO fault of the COR tractor, withiR seveR days
after receipt of the CORtractor's ApplicatioR for PaymeRt, or If the Owner does not pay the Contractor within seven days
after the date established in the Contract Documents the amount certified by the f.rchitect in the Application for
Payment or awarded by arbitration, then the Contractor may, upon seven additional days' written notice to the Owner
aRd :\rchitect, stop the Work until payment of the amount owing has been received. The Contract Time shall be
extended appropriately and the Contract Sum shall be increased by the amount of the Contractor's reasonable costs of
shut-down, delay and start-up, plus interest as provided for in the Contract Documents.
9.8 SUBSTANTIAL COMPLETION
9.8.1 Substantial Completion is the stage in the progress of the Work when the Work or designated portion thereof is
sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work for
its intended use.
9.8.2 When the Contractor considers that the Work, or a portion thereof which the Owner agrees to accept separately,
is substantially complete, the Contractor shall prepare and submit to the Architect a comprehensive list of items to be
completed or corrected prior to final payment. Failure to include an item on such list does not alter the responsibility of
the Contractor to complete all Work in accordance with the Contract Documents.
9.8.3 Upon receipt of the Contractor's list, the Architect will make an inspection to determine whether the Work or
designated portion thereof is substantially complete. If the Architect's inspection discloses any item, whether or not
included on the Contractor's list, which is not sufficiently complete in accordance with the Contract Documents so that
the Owner can occupy or utilize the Work or designated portion thereof for its intended use, the Contractor shall, before
issuance of the Certificate of Substantial Completion, complete or correct such item upon notification by the Architect.
In such case, the Contractor shall then submit a request for another inspection by the Architect to determine Substantial
Completion.
9.8.4 When the Work or designated portion thereof is substantially complete, the Architect will prepare a Certificate
of Substantial Completion which shall establish the date of Substantial Completion, shall establish responsibilities of the
Owner and Contractor for security, maintenance, heat, utilities, damage to the Work and insurance, and shall fix the time
within which the Contractor shall finish all items on the list accompanying the Certificate. Warranties required by the
Contract Documents shall commence on the date of Substantial Completion of the Work or designated portion thereof
unless otherwise provided in the Certificate of Substantial Completion.
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9.8.5 The Certificate of Substantial Completion shall be submitted to the Owner and Contractor for their written
acceptance of responsibilities assigned to them in such Certificate. Upon such acceptance and consent of surety, if any,
the Owner shall make payment of retainage applying to such Work or designated portion thereof. Such payment shall be
adjusted for Work that is incomplete or not in accordance with the requirements of the Contract Documents.
9.8.6 Upon occupancy of the Work, the Owner shall assume sole responsibility to operate and maintain the
Work properly, and waives any claims by the Owner against the Contractor, its Subcontractors and Sub-
subcontractors and the agents, officers, directors and employees of each of them, for any damages resulting from
improper operation and maintenance, including but not limited to damages arising from mold and other
microbial conditions.
9.9 PARTIAL OCCUPANCY OR USE
9.9.1 The Owner may occupy or use any completed or partially completed portion of the Work at any stage when
such portion is designated by separate agreement with the Contractor, provided such occupancy or use is consented to by
the insurer as required under Clause 11.4.1.5 and authorized by public authorities having jurisdiction over the Work.
Such partial occupancy or use may commence whether or not the portion is substantially complete, provided the Owner
and Contractor have accepted in writing the responsibilities assigned to each of them for payments, retainage, if any,
security, maintenance, heat, utilities, damage to the Work and insurance, and have agreed in writing concerning the
period for correction of the Work and commencement of warranties required by the Contract Documents. When the
Contractor considers a portion substantially complete, the Contractor shall prepare and submit a list to the Architect as
provided under Subparagraph 9.8.2. Consent of the Contractor to partial occupancy or use shall not be unreasonably
withheld. The stage of the progress of the Work shall be determined by written agreement between the Owner and
Contractor or, if no agreement is reached, by decision of the Architect.
9.9.2 Immediately prior to such partial occupancy or use, the Owner, Contractor and Architect shall jointly inspect
the area to be occupied or portion of the Work to be used in order to determine and record the condition of the Work.
9.9.3 Unless otherwise agreed upon, partial occupancy or use of a portion or portions of the Work shall not constitute
acceptance of Work not complying with the requirements of the Contract Documents and shall not necessarily
constitute Substantial Completion of the portion or portions of the Work occupied or used.
9.10 FINAL COMPLETION AND FINAL PAYMENT (Refer to Owner's Agreement)
9.10.1 Upon receipt of written notice that the Work is ready for final inspection and acceptance and upon receipt of a
final Application for Payment, the Architect Owner will promptly make such inspection and, when the j\rchitect Owner
finds the Work acceptable under the Contract Documents and the Contract fully performed, the .^.rchitect Owner will
promptly fs5He review a final Certificate Application for Payment stating that to the best of the Architect's Owner's
knowledge, information and belief, and on the basis of the Architect's Owner's on-site visits and inspections, the Work
has been completed in accordance with terms and conditions of the Contract Documents and that the entire balance
found to be due the Contractor and noted in the final Certificate Application is due and payable. The j\rchitect's
Contractor's final Certificate Application for Payment will constitute a further representation that conditions listed in
Subparagraph 9.10.2 as precedent to the Contractor's being entitled to final payment have been fulfilled.
9.10.2 Neither final payment nor any remaining retained percentage shall become due until the Contractor submits to
the .^.rchitect Owner (1) an affidavit that payrolls, bills for materials and equipment, and other indebtedness connected
with the Work for which the Owner or the Owner's property might be responsible or encumbered (less amounts withheld
by Owner) have been paid or otherwise satisfied, (2) a certificate evidencing that insurance required by the Contract
Documents to remain in force after final payment is currently in effect and will not be canceled or allowed to expire until
at least 30 days' prior written notice has been given to the Owner, (3) a written statement that the Contractor knows of no
substantial reason that the insurance will not be renewable to cover the period required by the Contract Documents, (4)
consent of surety, if any, to final payment, (5), if required by the Owner, other data establishing payment or satisfaction
of obligations, such as receipts, releases and waivers of liens, claims, security interests or encumbrances arising out of
the Contract, to the extent and in such form as may be designated by the Owner and (6) as-builts, spare parts, O&M
Manuals or Instructions, training and warranty programs. If a Subcontractor refuses to furnish a release or waiver
required by the Owner, the Contractor may furnish a bond satisfactory to the Owner to indemnify the Owner against such
lien. If such lien remains unsatisfied after payments are made, the Contractor shall refund to the Owner all money that
the Owner may be compelled to pay in discharging such lien, including all costs and reasonable attorneys' fees.
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9.10.3 If, after Substantial Completion of the Work, final completion thereof is materially delayed through no fault of
the Contractor or by issuance of Change Orders affecting final completion, aFld the .^.rchitect so confirms, the Owner
shall, upon application by the Contractor and certification by the .^.rchitect, and without terminating the Contract, make
payment of the balance due for that portion of the Work fully completed and accepted. If the remaining balance for
Work not fully completed or corrected is less than retainage stipulated in the Contract Documents, and if bonds have
been furnished, the written consent of surety to payment of the balance due for that portion of the Work fully completed
and accepted shall be submitted by the Contractor to the .^.rchitect Owner prior to certification of such payment. Such
payment shall be made under terms and conditions governing final payment, except that it shall not constitute a waiver of
claims.
9.10.4 The making of final payment shall constitute a waiver of Claims by the Owner except those arising from:
.1 liens, Claims, security interests or encumbrances arising out of the Contract and unsettled;
.2 failure of the Work to comply with the requirements of the Contract Documents; or
.3 terms of special warranties required by the Contract Documents.
9.10.5 Acceptance of final payment by the Contractor, a Subcontractor or material supplier shall constitute a waiver of
claims by that payee except those previously made in writing and identified by that payee as unsettled at the time of final
Application for Payment.
ARTICLE 10 PROTECTION OF PERSONS AND PROPERTY
10.1 SAFETY PRECAUTIONS AND PROGRAMS
10.1.1 The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and
programs in connection with the performance of the Contract.
10.2 SAFETY OF PERSONS AND PROPERTY
10.2.1 The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to
prevent damage, injury or loss to:
.1 employees on the Work and other persons who may be affected thereby;
.2 the Work and materials and equipment to be incorporated therein, whether in storage on or off the site,
under care, custody or control of the Contractor or the Contractor's Subcontractors or Sub-
subcontractors; and
.3 other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways,
structures and utilities not designated for removal, relocation or replacement in the course of
construction.
10.2.2 The Contractor shall give notices and comply with applicable laws, ordinances, rules, regulations and lawful
orders of public authorities bearing on safety of persons or property or their protection from damage, injury or loss.
10.2.3 The Contractor shall erect and maintain, as required by existing conditions and performance of the Contract,
reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards,
promulgating safety regulations and notifying owners and users of adjacent sites and utilities.
10.2.4 When use or storage of explosives or other hazardous materials or equipment or unusual methods are necessary
for execution of the Work, the Contractor shall exercise utmost care and carryon such acti vities under supervision of
properly qualified personnel.
10.2.5 The Contractor shall promptly remedy damage and loss (other than damage or loss insured under property
insurance required by the Contract Documents) to property referred to in Clauses 10.2.1.2 and 10.2.1.3 caused in whole
or in part by the Contractor, a Subcontractor, a Sub-subcontractor, or anyone directly or indirectly employed by any of
them, or by anyone for whose acts they may be liable and for which the Contractor is responsible under Clauses 10.2.1.2
and 10.2.1.3, except damage or loss attributable to acts or omissions of the Owner or Architect or anyone directly or
indirectly employed by either of them, or by anyone for whose acts either of them may be liable, and not attributable to
the fault or negligence of the Contractor. The foregoing obligations of the Contractor are in addition to the Contractor's
obligations under Paragraph 3.18.
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10.2.6 The Contractor shall designate a responsible member of the Contractor's organization at the site whose duty
shall be the prevention of accidents. This person shall be the Contractor's superintendent unless otherwise designated by
the Contractor in writing to the Owner and Architect.
10.2.7 The Contractor shall not load or permit any part of the construction or site to be loaded so as to endanger its
safety.
10.3 HAZARDOUS MATERIALS
10.3.1 If reasonable precautions will be inadequate to prevent contamination of the Work or foreseeable bodily
injury or death to persons resulting from a material or substance, including but not limited to mold, mildew, fungi or
other similar microbial conditions, asbestos or polychlorinated biphenyl (PCB), encountered on the site by the
Contractor, the Contractor shall, upon recognizing the condition, immediately stop Work in the affected area and report
the condition to the Owner and Architect in writing.
10.3.2 The Owner shall obtain the services of a licensed laboratory to verify the presence or absence of the material or
substance reported by the Contractor and, in the event such material or substance is found to be present, to verify that it
has been rendered harmless. Unless otherwise required by the Contract Documents, the Owner shall furnish in writing to
the Contractor and Architect the names and qualifications of persons or entities who are to perform tests verifying the
presence or absence of such material or substance or who are to perform the task of removal or safe containment of such
material or substance. The Contractor and the Architect will promptly reply to the Owner in writing stating whether or
not either has reasonable objection to the persons or entities proposed by the Owner. If either the Contractor or Architect
has an objection to a person or entity proposed by the Owner, the Owner shall propose another to whom the Contractor
and the Architect have no reasonable objection. When the material or substance has been rendered harmless, the Work
in the affected area shall resume upon written agreement of the Owner and Contractor. The Contract Time shall be
extended appropriately and the Contract Sum shall be increased in the amount of the Contractor's reasonable additional
costs of shut-down, delay and start-up, which adjustments shall be accomplished as provided in Article 7.
10.3.3 To the fullest extent permitted by law, the Owner shall indemnify and hold harmless the Contractor,
Subcontractors, Architect, Architect's consultants and agents and employees of any of them from and against claims,
damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance
of the Work in the affected area if in fact the material or substance contaminates the Work or presents the risk of
bodily injury or death as described in Subparagraph 10.3.1 and has not been rendered harmless, provided that such claim,
damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of
tangible property (other than the Work itself) including but not limited to the existence, development or growth of
mold, mildew, fungi or other microbial conditions and provided that such damage, loss or expense is not due to the
sole negligence of a party seeking indemnity.
10.4 The Owner shall not be responsible under Paragraph 10.3 for materials and substances brought to the site by the
Contractor unless such materials or substances were required by the Contract Documents.
10.5 If, without negligence on the part of the Contractor, the Contractor is held liable for the cost of remediation of a
hazardous material or substance solely by reason of performing Work as required by the Contract Documents, the Owner
shall indemnify the Contractor for all cost and expense thereby incurred.
10.6 EMERGENCIES
10.6.1 In an emergency affecting safety of persons or property, the Contractor shall act, at the Contractor's discretion,
to prevent threatened damage, injury or loss. Additional compensation or extension of time claimed by the Contractor or
account of an emergency shall be determined as provided in Paragraph 4.3 and Article 7.
ARTICLE 11 INSURANCE AND BONDS
11.1 CONTRACTOR'S LIABILITY INSURANCE
11.1.1 The Contractor shall purchase from and maintain in a company or companies lawfully authorized to do business
in the jurisdiction in which the Project is located such insurance as will protect the Contractor from claims set forth
below which may arise out of or result from the Contractor's operations under the Contract and for which the Contractor
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may be legally liable, whether such operations be by the Contractor or by a Subcontractor or by anyone directly or
indirectly employed by any of them, or by anyone for whose acts any of them may be liable:
.1 claims under workers' compensation, disability benefit and other similar employee benefit acts which are
applicable to the Work to be performed;
.2 claims for damages because of bodily injury, occupational sickness or disease, or death of the Contractor's
employees;
.3 claims for damages because of bodily injury, sickness or disease, or death of any person other than the
Contractor's employees;
.4 claims for damages insured by usual personal injury liability coverage;
.5 claims for damages, other than to the Work itself, because of injury to or destruction of tangible property,
including loss of use resulting therefrom;
.6 claims for damages because of bodily injury, death of a person or property damage arising out of
ownership, maintenance or use of a motor vehicle;
.7 claims for bodily injury or property damage arising out of completed operations; and
.8 claims involving contractual liability insurance applicable to the Contractor's obligations under
Paragraph 3.18.
11.1.2 The insurance required by Subparagraph 11.1.1 shall be written for not less than limits of liability specified in
the Contract Documents or required by law, whichever coverage is greater. Coverages, whether written on an
occurrence or claims-made basis, shall be maintained without interruption from date of commencement of the Work until
date of final payment and termination of any coverage required to be maintained after final payment. Owner and others
required by written contract shall be additional insureds on a primary and non contributory basis on
Contractor's Commercial General Liability coverage which shall also include a waiver of subrogation in favor of
the additional insureds.
11.1.3 Certificates of insurance acceptable to the Owner shall be filed with the Owner prior to commencement of the
Work. These certificates and the insurance policies required by this Paragraph 11.1 shall contain a provision that
coverages afforded under the policies will not be canceled or allowed to expire until at least 30 days' prior written notice
has been given to the Owner. If any of the foregoing insurance coverages are required to remain in force after final
payment and are reasonably available, an additional certificate evidencing continuation of such coverage shall be
submitted with the final Application for Payment as required by Subparagraph 9.10.2. Information concerning reduction
of coverage on accmmt of revised limits or claims paid Hnder the General .^.ggregate, or both, shall be fmnished by the
Contractor with reasonable promptness in accordance with the Contractor's information and belief.
11.1.4 Contractor shall use its subcontractor general liability rolling wrap-up insurance program, Z-25, which
provides additional insured including completed operations coverage, primary and non contributory and
aggregate per project endorsements in favor of the Owner. The limits of liability shall be $25,000,000 each
occurrence, $25,000,000 general aggregate and $25,000,000 products completed operations aggregate. Completed
operations coverage shall be for a period of 10 years following substantial completion. The cost of the Z-25
insurance shall be billed as a cost of the Work.
11.2 OWNER'S LIABILITY INSURANCE
11.2.1 The Owner shall be responsible for purchasing and maintaining the Owner's usual liability insurance.
11.3 PROJECT MANAGEMENT PROTECTIVE L1A81L1TY INSURANCE
11.3.1 Optionally, the Owner may reqHire the Contractor to pHrchase and maintain Project Management Protective
Liability insHrance from the Contractor's HSHal somces as primary coverage for the Owner's, Contractor's and
Architect's vicarious liability for constmction operations Hnder the Contract. Unless otherwise reqHired by the Contract
DocHments, the OVlfler shall reimbmse tHe Contractor by increasing the Contract SHm to pay the cost of pHrchasing and
maintaining sHch optional insHrance coverage, and the Contractor shall not be responsible for pHrchasing any other
liability insHrance on behalf of the OWRer. The minimHm limits of liability pHrchased with sHch coverage shall be equal
to the aggregate of the limits reqHired for Contractor's Liability InsHrance uRder Clauses 11.1.1.2 through 11.1.1.5.
11.3.2 To the extent damages are covered by Project MaRagement Proteotive Liability insHrance, the Owner,
Contractor and Architect wai'ie all rights against each other for damages, except such rights as they may have to the
proceeds of SHch insHrance. The policy shall provide for SHch waivers of subrogation by eRdorsemeRt or otherwise.
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11.3.3 The Owner shall not require the Contractor to include the Ovmer, .^.rchitect or other persons or entities as
additional insHreds on the Contractor's Liability Insmance coverage under Paragraph 11.1.
11.4 PROPERTY INSURANCE
11.4.1 Unless otherwise provided, the Contractor shall purchase and maintain, in a company or companies lawfully
authorized to do business in the jurisdiction in which the Project is located, property insurance written on a builder's risk
"all-risk" or equivalent policy form in the amount of the initial Contract Sum, plus value of subsequent Contract
modifications and cost of materials supplied or installed by others, comprising total value for the entire Project at the site
on a replacement cost basis without optional deductibles. Such property insurance shall be maintained, unless otherwise
provided in the Contract Documents or otherwise agreed in writing by all persons and entities who are beneficiaries of
such insurance, until final payment has been made as provided in Paragraph 9.10 or until no person or entity other than
the Owner has an insurable interest in the property required by this Paragraph 11.4 to be covered, whichever is later.
This insurance shall include interests of the Owner, the Contractor, Subcontractors and Sub-subcontractors in the Project.
11.4.1.1 Property insurance shall be on an "all risk" or equivalent policy form and shall include, without limitation,
insurance against the perils of fire (with extended coverage) and physical loss or damage including, without duplication
of coverage, theft, vandalism, malicious mischief, collapse, earthquake, flood, water damage, stored material,
material in transit, windstorm, falsework, testing and startup, temporary buildings and debris removal including
demolition occasioned by enforcement of any applicable legal requirements, and shall cover reasonable compensation
for Architect's and Contractor's services and expenses required as a result of such insured loss.
11.4.1.2 If the Owner does not intend to pmchase sHch property insHrance reqHired by the Contract and with all of
the cO'lerages in the amoHnt described abo'le, the Owner shall so inform the Contractor in writing prior to
commencement of the 'N ork. The Contractor may then effect insHrance which wiII protect the interests of the
Contractor, SHbcontractors and Sub subcontractors in the 'Nork, and by appropriate Change Order the cost thereof shall
be charged to the Owner. If the Contractor is damaged by the failHre or neglect of the Owner to purchase or maintain
insHrance as described abo'le, withoHt so notifying the Contractor in writing, then the O':mer shall bear all reasonable
costs properly attribHtable thereto.
11.4.1.3 If the property insurance requires deductibles, the Owner shall pay costs not covered because of such
deductibles.
11.4.1.4 This property insurance shall cover portions of the Work stored off the site, and also portions of the Work
in transit.
11.4.1.5 Partial occupancy or use in accordance with Paragraph 9.9 shall not commence until the insurance
company or companies providing property insurance have consented to such partial occupancy or use by endorsement or
otherwise. The Owner and the Contractor shall take reasonable steps to obtain consent of the insurance company or
companies and shall, without mutual written consent, take no action with respect to partial occupancy or use that would
cause cancellation, lapse or reduction of insurance.
11.4.2 Boiler and Machinery Insurance. The Contractor Owner shall purchase and maintain boiler and machinery
insurance required by the Contract Documents or by law, which shall specifically cover such insured objects during
installation and until final acceptance by the Owner; this insurance shall include interests of the Owner, Contractor,
Subcontractors and Sub-subcontractors in the Work, and the Owner and Contractor shall be named insured.
11.4.3 Loss of Use of Insurance. The Owner, at the Owner's option, may purchase and maintain such insurance as
will insure the Owner against loss of use of the Owner's property due to fire or other hazards, however caused. The
Owner wai ves all rights of action against the Contractor for loss of use of the Owner's property, including consequential
losses due to fire or other hazards however caused.
11.4.4 If the Contractor requests in writing that insurance for risks other than those described herein or other special
causes of loss be incIHded in the property insmance policy, the Owner shall, if possible, inclHde SHch insmance, and tHe
cost thereof shall be charged to the Contractor by appropriate Change Order.
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11.4.5 If during the Project construction period the Owner insures properties, real or personal or both, at or adjacent to
the site by property insurance under policies separate from those insuring the Project, or if after final payment property
insurance is to be provided on the completed Project through a policy or policies other than those insuring the Project
during the construction period, the Owner shall waive all rights in accordance with the terms of Subparagraph 11.4.7 for
damages caused by fire or other causes of loss covered by this separate property insurance. All separate policies shall
provide this waiver of subrogation by endorsement or otherwise.
11.4.6 Before an exposure to loss may occur, the Owner Contractor shall file with the CORtractor Owner a eepy--ef
eacH policy certificate of insurance that includes insurance coverages required by this Paragraph 11.4. EacH policy
shall cORtaiR all geRerally applicable cORditioRs, defiRitioRs, exclusioRs aRd eRdorsemeRts related to this Project. Each
~ertificate shall contain a provision that the policy will not be canceled or allowed to expire, and that its limits
will not be reduced, until at least 30 days' prior written notice has been given to the CORtractorOwner.
11.4. 7 Waivers of Subrogation. The Owner and Contractor wai ve all rights against (I) each other and any of their
subcontractors, sub-subcontractors, agents and employees, each of the other, and (2) the Architect, Architect's
consultants, separate contractors described in Article 6, if any, and any of their subcontractors, sub-subcontractors,
agents and employees, for damages caused by fire or other causes of loss to the extent covered by property insurance
obtained pursuant to this Paragraph 11.4, or other property insurance app]icable to the Work, except such rights as they
have to proceeds of such insurance held by the Owner as fiduciary. The Owner or Contractor, as appropriate, shall
require of the Architect, Architect's consultants, separate contractors described in Article 6, if any, and the
subcontractors, sub-subcontractors, agents and employees of any of them, by appropriate agreements, written where
legally required for validity, similar waivers each in favor of other parties enumerated herein. The policies shall provide
such waivers of subrogation by endorsement or otherwise. A waiver of subrogation shall be effective as to a person or
entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not
pay the insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the
property damaged.
11.4.8 A loss insured under OWRer's Contractor's property insurance shall be adjusted by the GwHer-Contractor as
fidl:lciary and made payable to the Owner and Contractor as fidl:lciary for the benefit of the insureds, as their interests
may appear, subject to requirements of any applicable mortgagee clause and of Subparagraph 11.4.10. The Contractor
shall pay Subcontractors their just shares of insurance proceeds received by the Contractor, and by appropriate
agreements, written where legally required for validity, shall require Subcontractors to make payments to their Sub-
subcontractors in similar manner.
11.4.9 If required in writing by a party in interest, the Owner and Contractor as fidl:lciary shall, upon occurrence of an
insured loss, give bond for proper performance of the Owner's and Contractor's duties. The cost of required bonds
shall be charged against proceeds received as fidl:lciary. The Owner and Contractor shall deposit in a separate account
proceeds so received, which the Owner and Contractor shall distribute in accordance with such agreement as the parties
in interest may reach, or in accordance with an arbitration award in which case the procedure shall be as provided in
Paragraph 4.6. If after such loss no other special agreement is made and unless the Owner terminates the Contract for
convenience, and to the extent funds are available replacement of damaged property shall be performed by the
Contractor after notification of a Change in the Work in accordance with Article 7.
11.4.10 The GwHer-Contractor as fidl:lciary shall have power to adjust and settle a loss with insurers unless one of the
parties in interest shall object in writing within five days after occurrence of loss to the OWRer's Contractor's exercise
of this power; if such objection is made, the dispute shall be resolved as provided in Paragraphs 4.5 and 4.6. The GwHet=
Contractor is fidl:lciary shall, in the case of arbitration, make settlement with insurers in accordance with directions of
the arbitrators. If distribution of insurance proceeds by arbitration is required, the arbitrators will direct such distribution.
11.4.11 Owner agrees to release, defend, hold harmless and indemnify Contractor from all damages and costs
including deductible expense which (1) arise from terrorist attacks, domestic or foreign, and (2) to the extent set
forth in Subparagraph 10.3.3 material or substance, including mold, mildew, fungi or other microbial conditions,
whether or not such loss, damage or costs are covered by any insurance maintained or purchased by Owner or
Contractor. Such damages and costs shall include but are not limited to: the Work itself, architect's fees, loss
resulting from laws or ordinances, pollution clean up expenses, "soft costs", and delay in opening expenses.
Owner agrees that Contractor shall not be obligated to continue performance or complete the project or the
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Work until funds sufficient to cover the cost of repair or replacement of the Work damaged by perils, insured or
not, are placed in escrow and available for the benefit of, and to pay, Contractor and it's subcontractors, and
their suppliers for all costs incurred in their repair, replacement and completion of the Work. The placement of
such funds in escrow and the execution of a contract Change Order mutually acceptable to Contractor and
Owner adjusting the Contract Sum and Contract Time shall be an express condition precedent to Contractor's
obligation to repair, replace or complete the Work.
11.5 PERFORMANCE BOND AND PAYMENT BOND
11.5.1 The Owner shall require the Contractor to furnish bonds covering faithful performance of the Contract and
payment of obligations arising thereunder as stipulated in bidding requirements or specifically required in the Contract
Documents on the date of execution of the Contract.
11.5.2 Upon the request of any person or entity appearing to be a potential beneficiary of bonds covering payment of
obligations arising under the Contract, the Contractor shall promptly furnish a copy of the bonds or shall permit a copy to
be made.
ARTICLE 12 UNCOVERING AND CORRECTION OF WORK
12.1 UNCOVERING OF WORK
12.1.1 If a portion of the Work is covered contrary to the Architect's request or to requirements specifically expressed
in the Contract Documents, it must, if required in writing by the Architect, be uncovered for the Architect's examination
and be replaced at the Contractor's expense without change in the Contract Time.
12.1.2 If a portion of the Work has been covered which the Architect has not specifically requested to examine prior to
its being covered, the Architect may request to see such Work and it shall be uncovered by the Contractor. If such Work
is in accordance with the Contract Documents, costs of uncovering and replacement shall, by appropriate Change Order,
be at the Owner's expense. If such Work is not in accordance with the Contract Documents, correction shall be at the
Contractor's expense unless the condition was caused by the Owner or a separate contractor in which event the Owner
shall be responsible for payment of such costs.
12.2 CORRECTION OF WORK
12.2.1 BEFORE OR AFTER SUBSTANTIAL COMPLETION
12.2.1.1 The Contractor shall promptly correct Work rejected by the Architect or failing to conform to the requirements
of the Contract Documents, whether discovered before or after Substantial Completion and whether or not fabricated,
installed or completed. Costs of correcting such rejected Work, including additional testing and inspections and
compensation for the Architect's services and expenses made necessary thereby, shall be at the Contractor's expense. If
the Contractor fails to correct nonconforming Work within a reasonable time after receipt of notice, the Owner
may correct it in accordance with Paragraph 2.4.
12.2.2 AFTER SUBSTANTIAL COMPLETION
12.2.2.1 In addition to the Contractor's obligations under Paragraph 3.5, if, within one year after the date of Substantial
Completion of the Work or designated portion thereof or after the date for commencement of warranties established
under Subparagraph 9.9.1, or by terms of an applicable special warranty required by the Contract Documents, any of the
Work is found to be not in accordance with the requirements of the Contract Documents, the Contractor shall correct it
promptly after receipt of written notice from the Owner to do so unless the Owner has previously given the Contractor a
written acceptance of such condition. The Owner shall give such notice promptly after discovery of the condition.
During the one-year period for correction of Work, if the Owner fails to notify the Contractor and give the Contractor an
opportunity to make the correction, the Owner waives the rights to require correction by the Contractor and to make a
claim for breach of warranty. If the Contractor fails to correct nonconforming Work within a reasonable time during that
period after receipt of notice from the Owner or Architect, the Owner may correct it in accordance with Paragraph 2.4.
12.2.2.2 The one-year period for correction of Work shall be extended with respect to portions of Work first performed
after Substantial Completion by the period of time between Substantial Completion and the actual performance of the
Work.
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12.2.2.3 The one-year period for correction of Work shall not be extended by corrective Work performed by the
Contractor pursuant to this Paragraph 12.2.
12.2.3 The Contractor shall remove from the site portions of the Work which are not in accordance with the
requirements of the Contract Documents and are neither corrected by the Contractor nor accepted by the Owner.
12.2.4 The Contractor shall bear the cost of correcting destroyed or damaged construction, whether completed or
partially completed, of the Owner or separate contractors caused by the Contractor's correction or removal of Work
which is not in accordance with the requirements of the Contract Documents.
12.2.5 Nothing contained in this Paragraph 12.2 shall be construed to establish a period of limitation with respect to
other obligations which the Contractor might have under the Contract Documents. Establishment of the one-year period
for correction of Work as described in Subparagraph 12.2.2 relates only to the specific obligation of the Contractor to
correct the Work, and has no relationship to the time within which the obligation to comply with the Contract
Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish the
Contractor's liability with respect to the Contractor's obligations other than specifically to correct the Work.
12.3 ACCEPTANCE OF NONCOMFORMING WORK
12.3.1 If the Owner prefers to accept Work which is not in accordance with the requirements of the Contract
Documents, the Owner may do so instead of requiring its removal and correction, in which case the Contract Sum will be
reduced as appropriate and equitable. Such adjustment shall be effected whether or not final payment has been made.
ARTICLE 13 MISCELLANEOUS PROVISIONS
13.1 GOVERNING LAW
13.1.1 The Contract shall be governed by the law of the place where the Project is located.
13.2 SUCCESSORS AND ASSIGNS
13.2.1 The Owner and Contractor respectively bind themselves, their partners, successors, assigns and legal
representatives to the other party hereto and to partners, successors, assigns and legal representatives of such other party
in respect to covenants, agreements and obligations contained in the Contract Documents. Except as provided in
Subparagraph 13.2.2, neither party to the Contract shall assign the Contract as a whole without written consent of the
other. If either party attempts to make such an assignment without such consent, that party shall nevertheless remain
legally responsible for all obligations under the Contract.
13.2.2 The Owner may, without consent of the Contractor, assign the Contract to an institutional lender providing
construction financing for the Project. In such event, the lender shall assume the Owner's rights and obligations under
the Contract Documents. The Contractor shall execute all consents reasonably required to facilitate such assignment.
13.3 WRITTEN NOTICE
13.3.1 Written notice shall be deemed to have been duly served if delivered in person to the individual or a member of
the firm or entity or to an officer of the corporation for which it was intended, or if delivered at or sent by registered or
certified mail to the last business address known to the party giving notice.
13.4 RIGHTS AND REMEDIES
13.4.1 Duties and obligations imposed by the Contract Documents and rights and remedies available thereunder shall
be in addition to and not a limitation of duties, obligations, rights and remedies otherwise imposed or available by law.
13.4.2 No action or failure to act by the Owner, Architect or Contractor shall constitute a waiver of a right or duty
afforded them under the Contract, nor shall such action or failure to act constitute approval of or acquiescence in a
breach thereunder, except as may be specifically agreed in writing.
13.5 TESTS AND INSPECTIONS
13.5.1 Tests, inspections and approvals of portions of the Work required by the Contract Documents or by laws,
ordinances, rules, regulations or orders of public authorities having jurisdiction shall be made at an appropriate time.
Unless otherwise provided, the Contractor shall make arrangements for such tests, inspections and approvals with an
29
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independent testing laboratory or entity acceptable to the Owner, or with the appropriate public authority, and shall bear
all related costs of tests, inspections and approvals. The Contractor shall give the Architect timely notice of when and
where tests and inspections are to be made so that the Architect may be present for such procedures. The Owner shall
bear costs of tests, inspections or approvals which do not become requirements until after bids are received or
negotiations concluded.
13.5.2 If the Architect, Owner or public authorities having jurisdiction determine that portions of the Work require
additional testing, inspection or approval not included under Subparagraph 13.5.1, the Architect will, upon written
authorization from the Owner, instruct the Contractor to make arrangements for such additional testing, inspection or
approval by an entity acceptable to the Owner, and the Contractor shall give timely notice to the Architect of when and
where tests and inspections are to be made so that the Architect may be present for such procedures. Such costs, except
as provided in Subparagraph 13.5.3, shall be at the Owner's expense.
13.5.3 If such procedures for testing, inspection or approval under Subparagraph 13.5.1 and 13.5.2 reveal failure of the
portions of the Work to comply with requirements established by the Contract Documents, all costs made necessary by
such failure including those of repeated procedures and compensation for the Architect's services and expenses shall be
at the Contractor's expense.
13.5.4 Required certificates of testing, inspection or approval shall, unless otherwise required by the Contract
Documents, be secured by the Contractor and promptly delivered to the Architect.
13.5.5 If the Architect is to observe tests, inspections or approvals required by the Contract Documents, the Architect
will do so promptly and, where practicable, at the normal place of testing.
13.5.6 Tests or inspections conducted pursuant to the Contract Documents shall be made promptly to avoid
unreasonable delay in the Work.
13.6 INTEREST
13.6.1 Payments due and unpaid under the Contract Documents shall bear interest from the date payment is due at such
rate as the parties may agree upon in writing or, in the absence thereof, at the legal rate prevailing from time to time at
the place where the Project is located.
13.7
13.7.1
COMMENCEMENT OF STATUTORY LIMITATION PERIOD
As between the Owner and Contractor:
.1 Before Substantial Completion. As to acts or failures to act occurring prior to the relevant date of
Substantial Completion, any applicable statute of limitations shall commence to run and any alleged cause
of action shall be deemed to have accrued in any and all events not later than such date of Substantial
Completion;
.2 Between Substantial Completion and Final Certificate for Payment. As to acts or failures to act
occurring subsequent to the relevant date of Substantial Completion and prior to issuance of the final
Certificate for Payment, any applicable statute of limitations shall commence to run and any alleged cause
of action shall be deemed to have accrued in any and all events not later than the date of issuance of the
final Certificate of Payment; and
.3 After Final Certificate for Payment. As to acts or failures to act occurring after the relevant date of
issuance of the final Certificate for Payment, any applicable statute of limitations shall commence to run
and any alleged cause of action shall be deemed to have accrued in any and all events not later than the date
of any act or failure to act by the Contractor pursuant to any Warranty provided under Paragraph 3.5, the
date of any correction of the Work or failure to correct the Work by the Contractor under Paragraph 12.2,
or the date of actual commission of any other act or failure to perform any duty or obligation by the
Contractor or Owner, whichever occurs last.
ARTICLE 14 TERMINATION OR SUSPENSION OF THE CONTRACT
14.1 TERMINATION BY THE CONTRACTOR
14.1.1 The Contractor may terminate the Contract if the Work is stopped for a period of 30 consecutive days through
no act or fault of the Contractor or a Subcontractor, Sub-subcontractor or their agents or employees or any other persons
30
WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution.
or entities performing portions of the Work under direct or indirect contract with the Contractor, for any of the following
reasons:
.1 issuance of an order of a court or other public authority having jurisdiction which requires all Work to be
stopped;
.2 an act of government, such as a declaration of national emergency which requires all Work to be stopped;
.3 becal:lse the Architect has Rot issl:led a Certificate for PaymeRt aRd has Rot notified the CORtractor of the
reason for withholdiRg certificatioR as provided iR Sl:Ibparagraph 9.1.1, or because the Owner has not made
payment on a Certificate for PaymeRt within the time stated in the Contract Documents; and has not
notified the Contractor of the reason for withholding payment as provided in Subparagraph 9.4.1 or
.4 the Owner has failed to furnish to the Contractor promptly, upon the Contractor's request, reasonable
evidence as required by Subparagraph 2.2.1.
14.1.2 The Contractor may terminate the Contract if, through no act or fault of the Contractor or a Subcontractor, Sub-
subcontractor, or their agents or employees or any other persons or entities performing portions of the Work under direct
or indirect contract with the Contractor, repeated suspensions, delays or interruptions of the entire Work by the Owner as
described in Paragraph 14.3 constitute in the aggregate more than 100 percent of the total number of days scheduled for
completion, or 120 days in any 365-day period, whichever is less.
14.1.3 Ifone of the reasons described in Subparagraph 14.1.1 or 14.1.2 exists, the Contractor may, upon seven days'
written notice to the Owner and Architect, terminate the Contract and recover from the Owner payment for Work
executed and for proven loss with respect to materials, equipment, tools, and construction equipment and machinery,
including reasoRable reasonable overhead, profit and damages.
14.1.4 If the Work is stopped for a period of 60 consecutive days through no act or fault of the Contractor or a
Subcontractor or their agents or employees or any other persons performing portions of the Work under contract with the
Contractor because the Owner has persistently failed to fulfill the Owner's obligations under the Contract Documents
with respect to matters important to the progress of the Work, the Contractor may, upon seven additional days' written
notice to the Owner and the Architect, terminate the Contract and recover from the Owner as provided in
Subparagraph 14.1.3.
14.2
14.2.1
TERMINATION BY THE OWNER FOR CAUSE
The Owner may terminate the Contract if the Contractor:
.1 persistently or repeatedly refuses or fails to supply enough properly skilled workers or proper materials;
.2 fails to make payment to Subcontractors for materials or labor in accordance with the respective
agreements between the Contractor and the Subcontractors;
.3 persistently disregards laws, ordinances, or rules, regulations or orders of a public authority having
jurisdiction; or
.4 otherwise is guilty of substantial breach of a provision of the Contract Documents.
14.2.2 When any of the above reasons exist, the Owner, upon certification by the Architect that sufficient cause exists
to justify such action, may without prejudice to any other rights or remedies of the Owner and after giving the Contractor
and the Contractor's surety, if any, seven days' written notice, terminate employment of the Contractor and may, subject
to any prior rights of the surety:
.1 take possession of the site and of all materials, equipment, tools, and construction equipment and
machinery thereon owned by the Contractor;
.2 accept assignment of subcontracts pursuant to Paragraph 5.4; and
.3 finish the Work by whatever reasonable method the Owner may deem expedient. Upon request of the
Contractor, the Owner shall furnish to the Contractor a detailed accounting of the costs incurred by the
Owner in finishing the Work.
14.2.3 When the Owner terminates the Contract for one of the reasons stated in Subparagraph 14.2.1, the Contractor
shall not be entitled to receive further payment until the Work is finished.
14.2.4 If the unpaid balance of the Contract Sum exceeds costs of finishing the Work, including compensation for the
Architect's services and expenses made necessary thereby, and other damages incurred by the Owner and not expressly
31
WARNING: Unlicensed photocopying violates U.S. copyright laws and will subject the violator to legal prosecution.
waived, such excess shall be paid to the Contractor. If such costs and damages exceed the unpaid balance, the
Contractor or Owner, as the case may be, shall be certified by the Architect, upon application, and this obligation for
payment shall survive termination of the Contract.
14.3 SUSPENSION BY THE OWNER FOR CONVENIENCE
14.3.1 The Owner may, without cause, order the Contractor in writing to suspend, delay or interrupt the Work in whole
or in part for such period of time as the Owner may determine.
14.3.2 The Contract Sum and Contract Time shall be adjusted for increases in the cost and time caused by suspension,
delay or interruption as described in Subparagraph 14.3.1. Adjustment of the Contract Sum shall include profit. No
adjustment shall be made to the extent:
.1 that performance is, was or would have been so suspended, delayed or interrupted by another cause for
which the Contractor is responsible; or
.2 that an equitable adjustment is made or denied under another provision of the Contract.
14.4
14.4.1
TERMINATION BY THE OWNER FOR CONVENIENCE
The Owner may, at any time, terminate the Contract for the Owner's convenience and without cause.
14.4.2 Upon receipt of written notice from the Owner of such termination for the Owner's convenience, the Contractor
shall:
.1 cease operations as directed by the Owner in the notice;
.2 take actions necessary, or that the Owner may direct, for the protection and preservation of the Work; and
.3 except for Work directed to be performed prior to the effective date of termination stated in the notice,
terminate all existing subcontracts and purchase orders and enter into no further subcontracts and purchase
orders.
14.4.3 In case of such termination for the Owner's convenience, the Contractor shall be entitled to receive payment for
Work executed, and costs incurred by reason of such termination, along with reasoHable overhead and profit on the Work
not executed.
32
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EXHIBIT "B"
Detailed Preconstruction Scope of Work
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EXHIBIT "c"
Billing Rate Schedule
Exhibit "C"
Marana Regional Airport - Sewer Line Preconstruction
PRECONSTRUCTION SERVICES PROPOSAL
CODE DESCRIPTION Billable Est.
Rate Hours Total
PRECONSTRUCTION SERVICES
1001 OPERATIONS MANAGER $111.40 3 $334
1002 PROJECT DIRECTOR $108.80 76 $8,269
1003 PROJECT MANAGER $101.20 143 $14,472
1030 PRE-CONSTRUCTION MANAGER $108.80 27 $2,938
1030 SENIOR ESTIMATOR $101.20 158 $15,990
1030 ESTIMATOR II $75.70 88 $6,662
1009 PROJECT SUPERINTENDENT $76.30 60 $4,578
1026 PROJECT ENGINEER $77.60 8 $621
1034 PROJECT ADMINSTRATOR $38.70 16 $619
Craftsmen
GENERAL FOREMAN $54.90 0 $0
FOREMAN $39.16 0 $0
MASTER CRAFTSMAN $37.12 0 $0
CRAFTSMAN $37.12 0 $0
APPRENTICE $29.75 0 $0
TRAINEE $25.72 0 $0
Total Reimbursables
Total Costs
579
7,500
$61,981
Notes:
1
2
PROPOSAL IS BASED ON COMPLETION OF PRECONSTRUCTION PHASE BY AUGUST 2007.
TOTAL PRICE IS PROPOSED AS A NOT TO EXCEED AMOUNT, REIMBURSED BASED ON
ACTUAL HOURS AND APPENDIX A, PERSONNEL REIMBURSEMENT SCHEDULE.
PRECONSTRUCTION SERVICES BEYOND AUGUST 22,2007 WILL BE CONSIDERED
ADDITIONAL SERVICES IF THE NOT TO EXCEED AMOUNT HAS BEEN REACHED.
PRECONSRUCTION SERVICES TO BE PROVIDED AS GENERALLY DESCRIBED IN AlA 121-
CM/GC.
DRAWING REPRODUCTION HAS BEEN INCLUDED AS A REIMBURSABLE COSTS UP TO $1500
THE ABOVE RATES DO NOT INCLUDE REIMBURSABLE EXPENSES. THE ABOVE RATES
ARE EFFECTIVE JANUARY 1,2007 THROUGH SEPTEMBER 30, 2007. RATES WILL BE
REVIEWED AND ADJUSTED EFFECTIVE OCTOBER 1ST OF EACH YEAR, BEGINNING
OCTOBER 1, 2007.
3
4
5
6
EXHIBIT "D"
Sample GMP Amendment
AMENDMENT NO. I TO AGREEMENT
BETWEEN OWNER AND CONSTRUCTION MANAGER
Pursuant to Paragraph 2.2. of the Agreement, dated between (Owner) and
(Construction Manager), for (the Project), the Owner and Construction
Manager establish a Guaranteed Maximum Price and Contract Time for the Work as set forth below.
ARTICLE 1
GUARANTEED MAXIMUM PRICE
The Construction Manager's Guaranteed Maximum Price for the Work, including the estimated Cost of the Work as defined
in Article 6 and the Construction Manager's Fee as defined in Article 5, is
Dollars ($
).
This Price is for the performance of the Work in accordance with the Contract Documents listed and attached to this
Amendment and marked Exhibits A through F as follows:
Exhibit A
Drawings, Specifications, addenda and General, Supplementary and other Conditions of the Contract on
which the Guaranteed Maximum Price is based, pages through, dated
Exhibit B
Allowance items, pages
through
, dated
Exhibit C
Assumptions and clarifications made in preparing the Guaranteed Maximum Price, pages
through , dated
Exhibit D
Completion schedule, pages
through , dated
Exhibit E
Alternate prices, pages
through , dated
Exhibit F
U nit prices, pages
through , dated
ARTICLE II
CONTRACT TIME
The date of Substantial Completion established by this Amendment is:
OWNER:
CONSTRUCTION MANAGER:
By:
By:
Date:
Date:
Attest:
Attest:
MEETING DATE: May 16, 2007
AGENDA ITEM:
TOWN COUNCIL
MEETING
INFORMATION
TOWN OF MARANA
1.4
TO: MAYOR AND COUNCIL
FROM: Charles E. Mangum, Airport Director
AGENDA TITLE: Resolution No. 2007-77: Relating to the Marana Regional Airport;
approving and authorizing a contract with Sundt Construction,
Inc. for the Construction Manager at Risk design phase services
for the construction of a new fire protection water line for the
Marana Regional Airport.
DISCUSSION
The Town of Marana has received a $1,350,000 aviation grant from the Arizona Department of
Transportation Aeronautics Division to fund the design and construction of a new fire protection
water line at the Marana Regional Airport. The design of this project is being completed by
Carter & Burgess Inc. and Sundt Construction has been selected as the Construction Manager at
Risk (CMAR) for this project.
The attached contract for $39,798 is to compensate Sundt Construction for preconstruction phase
services (Only Article 4.1.1 - Compensation; page 9 of 24 is attached. All other contract
language is exactly the same as Resolution No. 2007-76). Some of the major preconstruction
phase services Sundt will provide under this contract include: selection and recommendation of
materials; recommendations on construction feasibility; time requirements for procurement,
installation and construction completion; factors related to construction cost including estimates
of alternative designs or materials; and project schedules and cost estimates. As design proceeds,
the project schedules and cost estimates will be updated leading to the submittal of a Guaranteed
Maximum Price proposal for the construction of the fire protection water line (Exhibit D). The
final Guaranteed Maximum Price (GMP) proposal for construction of the fire protection water
line will be presented to Town Council for approval.
The standard American Institute of Architects (AlA) Document A121 & and the Associated
General Contractors of America (AGC) Document 565 was used as the standard form for the
contract agreement. AlA copyright and use permit requires all added language to be put in bold
and any original contract language that is deleted to be stricken out but still shown in the final
contract.
Airport Fire Protection Water Line
5/16/07
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ATTACHMENTS
Preliminary map of fire protection water line alignment; Sundt Construction Contract _ Article
4.1.1 - Compensation; page 9 of 24.
RECOMMENDATION
Staff recommends Council adoption of Resolution No. 2007-77.
SUGGESTED MOTION
I move to approve Resolution No. 2007-77.
-2-
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MARANA RESOLUTION NO. 2007-77
RELATING TO MARANA REGIONAL AIRPORT; APPROVING AND AUTHORIZING A
CONTRACT WITH SUNDT CONSTRUCTION, INC. FOR THE CONSTRUCTION
MANAGER AT RISK DESIGN PHASE SERVICES FOR THE CONSTRUCTION OF A NEW
FIRE PROTECTION WATER LINE FOR THE MARANA REGIONAL AIRPORT.
WHEREAS the Mayor and Council find that the terms and conditions of the contract with
Sundt Construction Inc. 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 contract between the Town of Marana and Sundt
Construction Inc. attached to and incorporated by this reference in this resolution as Exhibit A is
hereby approved, and the Town Manager is hereby authorized to execute it for and on behalf of
the Town of Marana.
BE IT FURTHER RESOLVED that 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 aforementioned contract.
PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF
MARANA, ARIZONA, this 16th day of May, 2007.
Mayor Ed Honea
ATTEST:
Jocelyn C. Bronson, Town Clerk
APPROVED AS TO FORM:
Frank Cassidy, Town Attorney
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LEGAL REQUIREMENTS
The Owner shall determine and advise tbe Architect and Construction Manager of any speciallegw requirements relating
specifically to the Project which differ from tnose generally applicable to construction in tbe jurisdiction of the Project. The
Owner shall furnish such legal services as are necessary to provide tbe inforrnntion and devices required under Pnragraph 3.1.
AR'l'lCl.E 4
COMPENSA TlON AND PAYMENTS FOR PRECONSTRUCTION PRASE SERVICES
The Owner shall compensate and make payments to tbe Construction Manager for Preeonstruction Phase services as follows:
4.1 COMPENSATION
4.1.1 ror the services described in Paragraphs 2. land 2.2 the Construction Manager's compensation shall be calculated as
follows;
Contpensatwu for Premnslruetion PJt.ase Serviees $hall OOU$M of:
.J- The total priceror P~1roction Semcesis proposed as a Not To Ex~ (NTE) amount of
$39,798.00 ror actually rendered and billed services. (up to NTE amount). Emibit B provides a
detailed $Cope ofwor'k "ith as.wciated cost for Preconstmction.
'" Proposal is .bUedon completion of the preronstnJction .PJt.ase Services Mthin five (5) consecutive
months.
J- TIte total price is proposed as aoot to eX~amoont..
>> Preconstruetion services beyond 6ve(5) months will be rousidered additional services if the not to
exceed amount has been reached. CO$t of senices is based on the cost bmJdnp hilling rate of actual
salal')' plus diJreetcosl$ pins indiinret cost" associated with an indivJduaI, and profit, all expressed as II
multiple of actual basesaIary. Such cost huildup of individual. billing rates sbalJ he furnished as a
billing rate scbedtd.e and attacbed to this agreement as Exbibit C.
;.. Construetion Manager sbalJ p.rovide Mth each invoice a statement of personnel by name, position,
and billing rate, task or activity, and hoon cbarged in the invoiceperWd andmmulative to date.
4.1 ,2 Compensation for Preconstruction Pha.~ services shall be equitably :tdjusted ifsuch services extend beyond a period of
five (5) consecutive months from tbe dale of this Agreement or if the originally contemplated scope of services is
significantly moolfied,
4,1 ,3 Compensation slmJi be based upon the individual BilUnglates as defined in Emibit C.
4.2PA YMENTS
4,2.1 Payment.. shall be made monthly rollowlngpresentatlon of the Construction Manager's invoice and. wnere applicable,
shall be in proportion to services perfottnect
4.2,:2 Pt\Yl'llenl$ are due and payabletwellty-one (21) days frofn the date the Construction Manager's invoice is received by
the Owner, Amoums unpaid after the da~ On which paymeot is due shall bear interest at the rate entered below, or in tbe
absence thereof; at the legal rate prevailing from riure to time at the place where the Project is located,.
Prime plus one percent (1 %).
Page 9
MEETING DATE: May 16, 2007
AGENDA ITEM:
TOWN COUNCIL
MEETING
INFORMATION
TOWN OF MARANA
1.5
TO: MAYOR AND COUNCIL
FROM: Charles E. Mangum, Airport Director
AGENDA TITLE: Resolution No. 2007-78: Relating to the Marana Regional Airport;
approving and authorizing a contract with Sundt Construction,
Inc. for the Construction Manager at Risk design phase services
for the construction of a new airport terminal for the Marana
Regional Airport.
DISCUSSION
The Town of Marana has received a $360,000 aviation grant from the Arizona Department of
Transportation Aeronautics Division to fund the design of a new airport terminal at the Marana
Regional Airport. The design of this project is being completed by Carter & Burgess Inc. and
Sundt Construction has been selected as the Construction Manager at Risk (CMAR) for this
project.
The attached contract for $59,108 is to compensate Sundt Construction for preconstruction phase
services (Only Article 4.1.1 - Compensation; page 9 of 24 is attached. All other contract
language is exactly the same as Resolution No. 2007-76). Some ofthe major preconstruction
phase services Sundt will provide under this contract include: selection and recommendation of
materials; recommendations on construction feasibility; time requirements for procurement,
installation and construction completion; factors related to construction cost including estimates
of alternative designs or materials; and project schedules and cost estimates. As design proceeds,
the project schedules and cost estimates will be updated leading to the submittal of a Guaranteed
Maximum Price proposal for the construction of the airport terminal (Exhibit D). The final
Guaranteed Maximum Price (GMP) proposal for construction of the airport terminal will be
presented to Town Council for approval.
The standard American Institute of Architects (AlA) Document A121 & and the Associated
General Contractors of America (AGC) Document 565 was used as the standard form for the
contract agreement. AlA copyright and use permit requires all added language to be put in bold
and any original contract language that is deleted to be stricken out but still shown in the final
contract.
Airport Fire Protection Water Line
5/16/07
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ATTACHMENTS
Sundt Construction Contract - Article 4.1.1 - Compensation; page 9 of 24.
RECOMMENDATION
Staff recommends Council adoption of Resolution No. 2007-78.
SUGGESTED MOTION
I move to approve Resolution No. 2007-78.
-2-
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MARANA RESOLUTION NO. 2007-78
RELATING TO MARANA REGIONAL AIRPORT; APPROVING AND AUTHORIZING A
CONTRACT WITH SUNDT CONSTRUCTION, INC. FOR THE CONSTRUCTION
MANAGER AT RISK DESIGN PHASE SERVICES FOR THE CONSTRUCTION OF A NEW
AIRPORT TERMINAL FOR THE MARANA REGIONAL AIRPORT.
WHEREAS the Mayor and Council find that the terms and conditions of the contract with
Sundt Construction Inc. 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 contract between the Town of Marana and Sundt
Construction Inc. attached to and incorporated by this reference in this resolution as Exhibit A is
hereby approved, and the Town Manager is hereby authorized to execute it for and on behalf of
the Town of Mar ana.
BE IT FURTHER RESOLVED that 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 aforementioned contract.
PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF
MARANA, ARIZONA, this 16th day of May, 2007.
Mayor Ed Honea
ATTEST:
Jocelyn C. Bronson, Town Clerk
APPROVED AS TO FORM:
Frank Cassidy, Town Attorney
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LEGAL REQUIREMENTS
The Owner shaH determine and advise the Architect and ConstrlJetion Mmwger of any special legal requirements relating
specifically to [he Project which differ Ihml those genenl!ly applicable to construction in the jurisdiction of the Project The
Owner shall rurnish such legal services as are necessary to provide the information and devices required under Paf".tgmph 3.1,
ARTICLE 4
COMPENSATION AND PAYMENTS FORPRECONSTRUCTION PHASE SERVICES
The Owner shaH compensate and make payments to the Constnll;:timl Manager lXlr Prec()J1structiofl Phase service,~ as follows:
4.1 COMPENSATION
4.1.1 For the services described in Paragraphs 2.1 and 2.2 the Construction Manager's compensation shall be calculated as
follows:
Coonpensalton fur Precunstrudion Pbase Senices$hall consist of:
.... The total price for Preconstruction Services is proposed as a Not Tu Ext~ (NTE) amount of
$59.108.00 for actually rendered and bUledscrviees (up to N'J'Eamoont). Exhibit B provides a
deblUed scope ur wi.uk with associated cost for PreconstructiQn,
, Proposal is based on completion of the precunstrudion Phase Services within ten (10) consecutive
montbs.
'" The t.otalpdce is proposed as a not to exceed amoonL
.. Precoustrodion services beyond ten (10) months will be considered additional sen'ices if the not to
exceed amount has been reached. Cost ur senices Is based on tbe cost buildup billing rate of actual
salary pl.us direct costs plus indirect cosls associated with nn iodividun1~ and profit, all exp~ as a
multiple of actoalbase salaQ'. Such cost build up of individual WUing rates shall be furnished as a
biJlingrate schedule and attached to this agreement as Exhibit C.
;,.. Constroetion Manager sball pro\'ide with each invoice a statement of personnel by name~ position.
and MUng rate, task or acti'vity. aod m>urs cbarged in the invoice period and cumulative to date.
4.1.2 Compensmion for PreconstructioFi Poasesel'vices shaH be equitably adjusted if such services extend beyond a period of
ten (to) consecutive months from the date of this Agreemem or if the originally contemplared scope of services is
significantly modified.
4. 1.3 Compensation shall be based upon the iodividual BiUing Rates as defined in ExhibitC.
4.2 PAYMENTS
4.2.1 Pnyruents shal.! be made mOllthly following presentation of the Construction Manager's invoice and, where applkable,
shall be in proportion to services performed.
Payments are due and payable twC'nty'~one an days from the date tRe Construction Manager's invoice is received by
the Owner. AmOunl'l unpaid after the date on which payment i..s due shaH bear interest at the rate entered below, Of in the
absence the.reof, ,at the legal rare prevailing from time to thue at the pl.oce where tire Project is located.
Prime plus nile percent (I % ),
9 of 24
MEETING DATE: May 16, 2007
AGENDA ITEM:
TOWN COUNCIL
MEETING
INFORMATION
TOWN OF MARANA
1.6
TO: MAYOR AND COUNCIL
FROM: Charles E. Mangum, Airport Director
AGENDA TITLE: Resolution No. 2007-79: Relating to the Marana Regional Airport;
approving and authorizing a contract with Carter & Burgess, Inc.
for the design of a new public airport terminal for the Marana
Regional Airport.
DISCUSSION
The Town of Marana has received a $360,000 aviation grant from the Arizona Department of
Transportation Aeronautics Division to fund the design of a new airport terminal at the Marana
Regional Airport. The design of this project is being completed by Carter & Burgess, Inc. and
Sundt Construction has been selected as the Construction Manager at Risk (CMAR) for this
project.
The attached contract for $332,655.42 is to compensate Carter & Burgess, Inc. for Schematic
Design Development (Phase I) and Design Development through the development of the
Guaranteed Maximum Price (Phase II). Phase III ofthis contract allows for a Construction
Phase Fee but this fee will be presented to the Town Council for approval with the final design
and request for construction approval of the new airport terminal.
ATTACHMENTS
General Airport Architectural and Engineering Services - Authorization of Services #5, Public
General Aviation Terminal at the Marana Regional Airport is available for viewing in the Town
Clerk's office.
RECOMMENDATION
Staff recommends Council adoption of Resolution No. 2007-79.
SUGGESTED MOTION
I move to approve Resolution No. 2007-79.
Airport Terminal Design - CarterBurgess
5/16/07
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MARANA RESOLUTION NO. 2007-79
RELATING TO MARANA REGIONAL AIRPORT; APPROVING AND AUTHORIZING A
CONTRACT WITH CARTER & BURGESS, INC. FOR THE DESIGN OF A NEW PUBLIC
AIRPORT TERMINAL FOR THE MARANA REGIONAL AIRPORT.
WHEREAS the Mayor and Council find that the terms and conditions of the contract with
Sundt Construction Inc. 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 contract between the Town of Maran a and Carter &
Burgess Inc. attached to and incorporated by this reference in this resolution as Exhibit A is
hereby approved, and the Airport Director is hereby authorized to execute it for and on behalf of
the Town of Mar ana.
BE IT FURTHER RESOLVED that 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 aforementioned contract.
PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF
MARANA, ARIZONA, this 16th day of May, 2007.
Mayor Ed Honea
ATTEST:
Jocelyn C. Bronson, Town Clerk
APPROVED AS TO FORM:
Frank Cassidy, Town Attorney
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GENERAL AIRPORT ARCHITECTURAL AND ENGINEERING
SERVICES
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AUTHORIZA TION OF SERVICES NO.5
TOWN OF MARANA
MARANA REGIONAL AIRPORT
11555 WEST CIVIC CENTER DRIVE
MARANA, ARIZONA 85653
(520) 682-9565
AGREEMENT
FOR
PROFESSIONAL CONSULTANT ARCHITECTURAL AND
ENGINEERING SERVICES
NOTE: THE LANGUAGE IN THIS AGREEMENT HAS BEEN BASED UPON AlA DOCUMENT B14ICMa
1992 EDITION.
Agreement to provide Architectural and Engineering Services from Schematic Design through
Bidding Completion I Guaranteed Maximum Price (GMP) and Construction of a new Public
General Aviation Terminal at the Marana Regional Airport, Marana, Arizona,
AGREEMENT made as of the
year 2007.
day of
, in the
BETWEEN the Owner
Town of Marana (TOWN)
11555 WEST CIVIC CENTER DRIVE
MARANA, ARIZONA 85653
And the Architect and Engineer:
Carter & Burgess, Inc. (CONSULTANT)
101 N. First Avenue, Suite 3100
Phoenix, AZ 85003
The Construction Manager (CM) (not a party to this Agreement) is:
Sundt Construction, Inc (CM)
4101 East Irvington Road
Tucson, Arizona 85714
Marana Airport Terminal Building
-Page 1 of20-
Authorization of Services No.5
TABLE OF CONTENTS
ARTICLE 1 CONSULTANT'S RESPONSIBILITES ..............................3
ARTICLE 2 SCOPE OF CONSULTANT'S BASIC SERVICES.............4
ARTICLE 3 ADDITIONAL SERVICES...................................................9
ARTICLE 4 TOWN'S RESPONSIBILITIES............................................11
ARTICLE 5 CONSTRUCTION COST .....................................................12
ARTICLE 6 DISPUTE RESOLUTION .....................................................13
ARTICLE 7 MISCELLANEOUS PROVISIONS .....................................15
ARTICLE 8 BASIS OF COMPENSATION.............................................. 16
ARTICLE 9 OTHER CONDITIONS OR SERVICES ..............................17
SIGNATURE PAGE ....................................................................................19
EXHIBIT A DETAILED SCOPE OF SERVICES
EXHIBIT B DETAILED FEE BREAKDOWN
EXHIBIT C PROJECT SCHEDULE
Marana Airport Terminal Building
-Page 2 of20-
Authorization of Services No.5
The TOWN and CONSULTANT agree as set forth below.
ARTICLE I CONSULTANT'S RESPONSIBILITIES
1.1 CONSULTANT'S SERVICES
1.1.1 The CONSUL T ANT's services consist of those services performed by the
CONSULTANT, CONSULTANT's employees and CONSULTANT's subconsultants as
enumerated in Articles 2 and 3 of this Agreement and any other services included in
Article 9.
1.1.2 The CONSULTANT's services shall be provided in conjunction with the services of a
CM as described in the executed Contract between the TOWN and the Construction
Manager at Risk (CM or CONTRACTOR) and any changes or modifications thereto or
any supplemental agreements to such Contract.
1.1.3 The CONSULTANT's services shall be performed as expeditiously as is consistent with
that degree of care and skill ordinarily exercised under similar conditions by similar
design professionals practicing at the same time in the same or similar locality. The
CONSUL T ANT shall submit for the TOWN's approval and the CM's information a
schedule for the performance of the CONSULTANT's services which shall be
coordinated with the Project Schedule at the time of submittal, which may be adjusted as
the Project proceeds and the Project Schedule is refined, and shall include allowances for
periods of time required for the TOWN's and CM's review and for approval of
submissions by authorities having jurisdiction over the Project. Time limits established
by this schedule approved by the TOWN shall not, except for reasonable cause, be
exceeded by the CONSULTANT or TOWN.
1.1.4 The services covered by this Agreement are for a period of eighteen (18) months from
the date of execution of this Agreement which shall be the last date of signature entered
below. Nine (9) months are for design and nine (9) months are for construction (see
Exhibit "C" - Project Schedule).
1.2 The CONSUL T ANT shall designate a representative authorized to act on the
CONSUL T ANT's behalf with respect to the Project. The CONSULTANT or such
authorized representative shall provide goods or products (plans, details, technical
documents, clarifications and similar items) delivered and services rendered in a timely
manner as required by the Project pertaining to the CONSULTANT's schedule of
performance indicated in subparagraph 1.1.3, the Project Schedule, requests from the
OWNER or the CM or other parties involved with the Project that have a reasonable need
and right to information or other Project requirement in order to avoid unreasonable delay
in the orderly and sequential progress of the Work associated with the Project. The
Representative for the CONSULTANT and his official address for receipt of formal
notice, correspondence, and other items that might pertain is:
Marana Airport Terminal Building
-Page 3 of20-
Authorization of Services No.5
Bruce K. Loev, P.E
Senior Project Manager
Carter Burgess
101 North First Ave
Suite 3100
Phoenix, AZ 85003
ARTICLE 2 SCOPE OF CONSULTANT'S BASIC SERVICES
2.1 DEFINITION
2.1.1 The CONSULTANT's Basic Services consist of those described in Sections 2.2 through
2.5 and any other services identified in Article 9 as part of Basic Services, and include
normal architectural, structural, mechanical, civil, landscape and electrical engineering
servIces.
2.2 SCHEMATIC DESIGN PHASE
2.2.1 The CONSULTANT shall review the program, schedule and construction budget
furnished by the TOWN to ascertain the requirements of the Project and shall arrive at a
mutual understanding of such requirements with the TOWN.
2.2.2 The CONSULTANT shall review with the TOWN and CM proposed site use and
improvements; selection of materials, building systems and equipment; and methods of
Project delivery.
2.2.3 The CONSULTANT shall review with the TOWN and CM alternative approaches to
design and construction of the Project.
2.2.4 Based on the mutually agreed-upon program, schedule and construction budget
requirements, the CONSULTANT shall prepare, for approval by the TOWN, Schematic
Design Documents consisting of drawings and other documents illustrating the scale and
relationship of Project components, proposed building systems, including foundation
types, general capacities and general performance of basic systems and general
equipment and materials.
2.2.5 At intervals appropriate to the progress of the Schematic Design Phase and mutually
agreeable to the TOWN, CM and CONSULTANT, the CONSULTANT shall provide
schematic design studies for the TOWN's review and the CM's information.
2.2.6 In the further development of the drawings and specifications during this and subsequent
phases of design, The CONSULTANT shall be entitled to assume the accuracy of the
estimates of Construction Cost which are to be provided by the CM under the CM's
agreement with the TOWN, except that the CONSULTANT shall provide due diligence
in review and use of the information provided and shall inform the TOWN and the CM of
any apparent discrepancies, errors or omissions that the CONSULTANT may find in his
use of the estimates or any other information provided.
Marana Airport Terminal Building
-Page 4 of 20-
Authorization of Services No.5
2.2.7 Upon completion of the Schematic Design Phase, the CONSULTANT shall provide
drawings, outline specifications and other documents for the TOWN's approval and the
CM's information and use, including reproduction as necessary, in the procurement of
goods and services and as otherwise necessary for the performance of the Work.
2.3 DESIGN DEVELOPMENT PHASE
2.3.1 Based on the approved Schematic Design Documents and any adjustments authorized by
the TOWN in the Program schedule or construction budget, the CONSULTANT shall
prepare Design Development Documents for the CM's review and the TOWN's
approval. The Design Development Documents shall be based upon data and estimates
prepared by the CM and shall consist of drawings and other documents
2.3.2 At intervals mutually agreeable to the TOWN, CM and CONSUL T ANT, the
CONSUL T ANT shall provide portions of drawings and other documents which depict
the current status of design development for the TOWN's review and the CM's
information.
2.3.3 Upon completion of the Design Development Phase, the CONSULTANT shall provide
drawings, outline specifications and other documents for the TOWN's approval and the
CM's information and use, including reproduction as necessary, in the procurement of
goods and services and as otherwise necessary for the performance of the Work.
2.4 CONSTRUCTION DOCUMENTS PHASE
2.4.1 Based on the approved Design Development Documents and any further adjustments
authorized by the TOWN in the scope or quality of the Project or in the construction
budget, the CONSULTANT, utilizing data and estimates prepared by the CM, shall
prepare, for approval by the TOWN, Construction Documents consisting of Drawings
and Specifications setting forth in detail the requirements for the construction of the
Project.
2.4.2 At intervals mutually agreeable to the TOWN, CM and CONSULTANT, the
CONSULTANT shall provide Drawings and Specifications for the TOWN's and the
CM's review.
2.4.3 During finalization of the Construction Documents on which the CM will base his
assumptions and propose a Guaranteed Maximum Price, the CONSULTANT shall work
closely with the CM and the TOWN to assure that the Construction Documents are of
sufficient clarity and specificity that the Assumptions that the CM will stipulate as his
understanding the Construction Documents and intent of the Design submitted as part of
and at the time of submitting the GMP will be sufficiently clear, and reflective of the
Construction Documents and the intent of the Design to fulfill the intent of the Design
and accommodate minor changes that can be considered within the GMP or Contractors
Contingency and to minimize cost and time related changes (Contract Change Orders)
due to ambiguity (including insufficient clarity in statement of performance or quality or
kind(s) of finishes, materials, or building systems, or performance of equipment and
Marana Airport Terminal Building
-Page 5 of 20-
Authorization of Services No.5
systems), and sufficiently comprehensive to minimize cost and time related changes due
to exclusivity (overly restrictive or proprietary specifications or requirements) unless
specifically warranted by the intent of the Design or required performance (including
conditions of warranty, life-cycle costs, expandability or availability and costs of spare
parts and cost and ease of maintenance).
2.4.4 Upon completion of the Construction Documents Phase, the CONSULTANT shall
provide Construction Documents for the TOWN's approval and the CM's information
and use, including reproduction as necessary, in the procurement of goods and services
and as otherwise necessary for the performance of the Work.
2.4.5 The CONSULTANT shall assist the TOWN and CM in the preparation of the necessary
solicitation and bidding information, submittal or bidding forms, the Conditions of the
Contracts, and the forms of Agreement between the CM and the subcontractors. The
CONSUL T ANT shall assist the CM in issuing solicitations for statements of qualification
and bidding documents to prospective subcontractors and conducting pre-submittal and
pre-bid conferences with prospective subcontractors. The CONSULTANT, with the
assistance of the CM, shall respond to questions from, those firms who are potential
bidders or who may potentially submit statements of qualifications for evaluation and
selection and shall issue addenda as necessary and applicable to only this Project.
2.4.6 The CONSULTANT shall assist the TOWN and CM in connection with the TOWN's
responsibility for filing documents required for the approval of governmental authorities,
utility companies and similar agencies having jurisdiction over the Project or
requirements for review, permitting or other requirements.
2.5 BIDDING OR NEGOTIATION PHASE (GMP)
2.5.1 The CONSULTANT shall review the GMP and the Assumptions which the CM submits
as his understanding of the Construction Documents and intent of the Design, and on
which the CM has based the proposed GMP, against the Construction Documents and the
intent of the Design and assure reasonable agreement and conformance of the stipulated
Assumptions with the Construction Documents and intent of the design.
2.5.2 The CONSULTANT, following the TOWN's approval of the Construction Documents
and of the CM's latest estimate of Construction Cost, shall assist the CM in reviewing
statement of qualifications, proposals and contracts for construction.
2.6 CONSTRUCTION PHASE-ADMINISTRATION OF THE CONSTRUCTION CONTRACT
2.6.1 The CONSULTANT's responsibility to provide Basic Services for the Construction Phase
under this Agreement commences with the award of the Contract for construction and terminates
at the earlier of the issuance to the Owner of the final Project Certificate for Payment or 60 days
after the date of Substantial Completion of the Work.
Marana Airport Terminal Building
-Page 6 of 20-
Authorization of Services No.5
2.6.2 The CONSULTANT shall provide administration of the Contract for construction in
cooperation with the Construction Manager as set forth below and in the General Conditions of
the Contract for Construction.
2.6.3 Duties, responsibilities and limitations of authority of the CONSULTANT shall not be
restricted, modified or extended without written agreement of the Owner and Consultant with
consent of the Contractors and the Construction Manager, which consent shall not be
unreasonably withheld.
2.6.4 The CONSULTANT shall be a representative of, and shall advise and consult with, the
Owner (1) during construction until final payment to the Contractors is due, and (2) as an
Additional Service at the Owner's direction from time to time during the correction period
described in the Contracts for Construction. The CONSULTANT shall have authority to act on
behalf of the Owner only to the extent provided in this Agreement unless otherwise modified by
written instrument.
2.6.5 The CONSULTANT shall visit the site at intervals appropriate to the stage of construction,
or as otherwise agreed by the Owner and CONSULTANT in writing, to become generally
familiar with the progress and quality of the Work completed and to determine in general if the
Work is being performed in a manner indicating that the Work when completed will be in
accordance with the Contract Documents. However, the CONSULTANT shall not be required
to make exhaustive or continuous on-site inspections to check the quality or quantity of the
Work. On the basis of on-site observations as a CONSULTANT, the CONSULTANT shall keep
the Owner informed of the progress and quality of the Work, and shall endeavor to guard the
Owner against defects and deficiencies in the Work. (More extensive site representation may be
agreed to as an Additional Service, as described in Section 3.2.)
2.6.6 The CONSULTANT shall not have control over or be in charge of and shall not be
responsible for construction means, methods, techniques, sequences or procedures, or for safety
precautions and programs in connection with the Work, since these are the Contractors'
responsibility under the Contracts for Construction. The CONSULTANT shall not be
responsible for the Contractors' schedules or failure to carry out the Work in accordance with the
Contract Documents. The CONSULTANT shall not be responsible for the performance by the
Construction Manager of the services required by the Construction Manager's agreement with
the Owner. The CONSULTANT shall not have control over or be in charge of acts or omissions
of the Contractors, Subcontractors, or their agents or employees, or of any other persons
performing services or portions of the Work.
2.6.7 The CONSULTANT shall at all times have access to the Work wherever it is in preparation
or progress.
2.6.8 Communications by and with the CONSULTANT's subconsultants shall be through the
CONSULTANT.
2.6.9 The CONSULTANT shall have authority, after notification to the Construction Manager,
to reject Work which does not conform to the Contract Documents. Whenever the
Marana Airport Terminal Building
-Page 7 of 20-
Authorization of Services No.5
CONSUL T ANT considers it necessary or advisable for implementation of the intent of the
Contract Documents, the CONSULTANT will have authority, upon written authorization from
the Owner, to require additional inspection or testing of the Work in accordance with the
provisions of the Contract Documents, whether or not such Work is fabricated, installed or
completed. However, neither this authority of the CONSULTANT nor a decision made in good
faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility
of the CONSULTANT to the Construction Manager, Contractors, Subcontractors, material and
equipment suppliers, their agents or employees or other persons performing portions of the work.
2.6.10 The CONSULTANT shall review and approve or take other appropriate action upon
Contractors' submittals such as Shop Drawings, Product Data and Samples, but only for the
limited purpose of checking for conformance with information given and the design concept
expressed in the Contract Documents. The CONSULTANT's action shall be taken with such
reasonable promptness as to cause no delay in the Contractors' Work or in construction by the
Owner's own forces, while allowing sufficient time in the CONSULTANT's professional
judgement to permit adequate review. Review of such submittals is not conducted for the
purposed of determining the accuracy and completeness of other details such as dimensions and
quantities or for substantiating instruction for installation or performance of equipment or
systems designed by the Contractors, all of which remain the responsibility of the Contractors to
the extent required by the Contract Documents. The CONSULTANT's review shall not
constitute approval of safety precautions or, unless otherwise specifically stated by the
CONSUL T ANT, of construction means, methods, techniques, sequences or procedures. The
CONSUL T ANT's approval of a specific item shall not indicate approval of an assembly of
which the item is a component. When professional certification of performance characteristics
of materials, systems or equipment is required by the Contract Documents, the CONSULTANT
shall be entitled to rely upon such certification to establish that the materials, systems or
equipment will meet the performance criteria required by the Contract Documents.
2.6.11 The CONSULTANT may authorize minor changes in Work not involving an adjustment
in a Contract Sum or an extension of a Contract Time which are not inconsistent with the intent
of the Contract Documents. Such changes shall be effected by written order issued through the
Construction Manager.
2.6.12 The CONSULTANT, assisted by the Construction Manager, shall conduct inspections to
determine the date or dates of Substantial Completion and the date of final completion.
2.6.13 The CONSULTANT shall interpret and decide matters concerning performance of the
Owner and Contractor under the requirements of the Contract Documents on written request of
either the Owner or Contractor. The CONSULTANT's response to such requests shall be made
with reasonable promptness and within any time limits agreed upon.
2.6.14 Interpretations and decisions of the CONSULTANT shall be consistent with the intent of,
and reasonably inferable from, the Contract Documents and shall be in writing or in the form of
drawings. When making such interpretations and initial decisions, the CONSULTANT shall
endeavor to secure faithful performance by both Owner and Contractors, shall not show partiality
Marana Airport Terminal Building
-Page 8 of 20-
Authorization of Services No.5
to either, and shall not be liable for results of interpretations or decisions so rendered in good
faith.
2.6.15 The CONSULTANT's decisions on matters relating to aesthetic effect shall be final if
consistent with the intent expressed in the Contract Documents.
2.6.16 The CONSULTANT shall render written decisions within a reasonable time on all claims,
disputes or other matters in question between the Owner and Contractors relating to the
execution or progress of the Work as provided in the Contract Documents.
2.6.17 The CONSULTANT's decisions on claims, disputes or other matters, including those in
question between the Owner and Contractors, except for those relating to aesthetic effect as
provided in Section 2.6.15, shall be subject to arbitration as provided in this Agreement and in
the Contract Documents.
ARTICLE 3 ADDITIONAL SERVICES
3.1
3.1.1
3.2
3.2.1
3.2.1.1
3.2.1.2
GENERAL
The services described in this Article 3 are not included in Basic Services unless so
identified in Article 9, and they shall be paid for by the TOWN as provided in this
Agreement, in addition to the compensation for Basic Services. The services described
under Sections 3.2 and 3.3 shall only be provided if authorized or confirmed in writing by
the TOWN. If services described under Additional Services in Section 3.2 are required
due to circumstances beyond the CONSULTANT's control, the CONSULTANT shall
notify the TOWN prior to commencing such services. If the TOWN deems that such
services described under Section 3.3 are not required, the TOWN shall give prompt
written notice to the CONSULTANT. If the TOWN indicates in writing that all or part of
such Additional Services are not required, the CONSULTANT shall have no obligation
to provide those services.
CONTINGENT ADDITIONAL SERVICES
Making revisions in Drawings, Specifications, or other documents when such revisions
are:
inconsistent with approvals or instructions previously given by the TOWN,
including revisions made necessary by adjustments in the TOWN's program or
Project budget except where such revision is due to changes initiated by the
CONSUL T ANT in scope, capacities of basic systems, or the kinds and quality of
materials, finishes or equipment or necessitated by subsequent development of the
design.
requested by the TOWN because the CM's estimate of Construction Cost exceeds
the TOWN's budget, except where such excess is due to changes initiated by the
CONSUL T ANT in scope, capacities of basic systems, or the kinds and quality of
materials, finishes or equipment;
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Authorization of Services No.5
3.2.1.3 required by the enactment or revision of codes, laws or regulations subsequent to
the preparation of such documents: or
3.2.1.4 due to changes required as a result of the TOWN's failure to render decisions in a
timely manner.
3.2.2 Providing services required because of significant changes in the Project including, but
not limited to, changes in size, quality, complexity, the TOWN's or CM's schedule, or
the method of bidding or negotiating and contracting for construction, except for services
required under Section 5.2.3.
3.2.3 Preparing Drawings, Specifications, and other documentation and supporting data,
evaluating Contractor's proposals, and providing other services in connection with
TOWN directed changes in the Work.
3.2.4 Providing services in connection with evaluating substitutions proposed by Contractors
and making subsequent revisions to Drawings, Specifications and other documentation
resulting there from.
3.2.5 Providing services in connection with a public hearing, arbitration proceeding or legal
proceeding except where the CONSULTANT is party thereto.
3.2.6 Preparing documents for alternate, separate or sequential bids or providing services in
connection with bidding, negotiation or construction prior to the completion of the
Construction Documents Phase.
3.2.7 Providing services, including revisions in Construction Documents for subsequent
solicitation or bidding of a CM/CONTRACTOR if the OWNER and the CM are unable
to reach mutually satisfactory agreement and unable to execute a follow-on Contract to
Construct the facilities.
3.3 OPTIONAL ADDITIONAL SERVICES
3.3.1 Providing analyses of the TOWN's needs and programming the requirements of the
Project.
3.3.2 Providing financial feasibility or other special studies.
3.3.3 Providing planning surveys, site evaluations or comparative studies of prospective sites.
3.3.4 Providing services relative to future facilities, systems and equipment.
3.3.5 Providing services to verify the accuracy of drawings or other information furnished by
the TOWN.
3.3.6 Providing services in connection with the work of separate consultants retained by the
TOWN.
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Authorization o/Services No.5
3.3.7 Providing analyses of owning and operating costs.
3.3.8 Providing services for planning tenant or rental spaces.
3.3.9 Making investigations, inventories of materials or equipment, or valuations and detailed
appraisals of existing facilities.
3.3.1 0 Providing services of consultants for other than architectural, civil, structural,
mechanical, landscape and electrical engineering portions of the Project provided as a
part of Basic Services.
3.3.11 Providing any other services not otherwise included in this Agreement or not customarily
furnished in accordance with generally accepted architectural and engineering practice.
ARTICLE 4 TOWN'S RESPONSIBILITIES
4.1 The TOWN shall provide full information regarding requirements for the Project,
including a program which shall set forth the TOWN's objectives, schedule, constraints
and criteria, including space requirements and relationships, flexibility, expandability,
special equipment, systems, and site requirements.
4.2 The TOWN shall establish and update an overall budget for the Project based on
consultation with the CM and the CONSULTANT, which shall include the Construction
Cost, the TOWN's other costs and reasonable contingencies related to all of these costs.
4.3 If requested by the CONSULTANT, the TOWN shall furnish evidence that financial
arrangements have been made to fulfill the TOWN's obligations under this Agreement.
4.4 The TOWN shall designate a representative authorized to act on the TOWN's behalf with
respect to the Project. The TOWN or such authorized representative shall render
decisions in a timely manner pertaining to documents submitted by the CONSULTANT
in order to avoid unreasonable delay in the orderly and sequential progress of the
CONSULTANT's services. The Representative for the TOWN and his official address
for receipt of notice, correspondence, submittals and other items that might pertain is:
Charles Mangum
Airport Director
Marana Regional Airport
11700 W. Avra Valley Road, #91
Marana, Arizona 85653
4.5 The TOWN shall retain a CM to administer the Project. The CM's services, duties and
responsibilities will be as described in the TOWN/CM contract. The Terms and
Conditions of the Agreement between TOWN and CM shall be furnished to the
CONSUL T ANT for review. Should changes proposed to the contract between the
TOWN and the CM in any way affect the terms and conditions of the contract between
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Authorization of Services No.5
the TOWN and the CONSULTANT, modification of the CM contract shall not be
modified without written consent of the CONSULTANT, which consent shall not be
unreasonably withheld. The CONSULTANT shall not be responsible for actions taken
by the CM.
4.6 The TOWN shall furnish eXlstmg surveys describing physical characteristics, legal
limitations and utility locations for the site of the Project, and a written legal description
of the site. The surveys and legal information shall include, as applicable, grades and
lines of streets, alleys, pavements and adjoining property arid structures; adjacent
drainage; rights-of-way, restrictions, easements, encroachments, zoning, deed
restrictions, boundaries and contours of the site; locations, dimensions and necessary data
pertaining to existing buildings, other improvements and trees; and information
concerning available utility services and lines, both public and private, above and below
grade, including inverts and depths. All the information on the survey shall be referenced
to a Project benchmark.
4.7 The TOWN shall furnish structural, mechanical, chemical, air and water pollution tests,
tests for hazardous materials, and other laboratory and environmental tests, inspections
and reports required by law or the Contract Documents.
4.8 The services, information, surveys and reports required by Sections 4.6 through 4.7 shall
be furnished at the TOWN's expense, and the CONSULTANT shall be entitled to rely
upon the accuracy and completeness thereof.
4.9 The proposed language of certificates or certifications requested of the CONSULTANT
or CONSULTANT's consultants shall be submitted to the CONSULTANT for review
and approval at least 14 days prior to execution. The TOWN shall not request
certifications that would require knowledge or services beyond the scope of this
Agreement.
4.10 The TOWN shall furnish the required information and services and shall render approvals
and decisions as expeditiously as necessary for the orderly progress of the
CONSUL T ANT's services.
4.11 Upon request, the TOWN shall furnish CONSULTANT copIes of written
communications with the CM.
ARTICLE 5 CONSTRUCTION COST
5.1 DEFINITION
5.1.1 The Construction Cost shall be the total cost or estimated cost to the TOWN of all
elements of the Project designed or specified by the CONSULTANT.
5.1.2 The Construction Cost shall include the cost at current market rates oflabor and materials
and equipment designed, specified, selected or specially provided for by the
CONSUL T ANT furnished by the TOWN or by the CM or his subcontractors, plus a
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Authorization of Services No.5
reasonable allowance for the Contractors' overhead and profit. In addition, a reasonable
allowance for the CM's Contingency shall be included for market conditions, including
escalated costs of labor, materials, goods or services, at the time of bidding and for minor
changes in the Work during construction within the scope of the Construction Documents
and intent of the Design and the Assumptions of the CM expressing his understanding of
the Construction Documents and intent of the Design at the time of submitting and
accepting of the GMP. It shall also include an Owners Contingency for Contract Change
Orders for changes outside of the scope of the Construction Documents and intent of the
Design and the Assumptions of the CM expressing his understanding of the Construction
Documents and intent of the Design through his Assumptions at the time of submitting
and accepting of the GMP, and generally Owner-directed changes or substantial changes
in the scope, capacities of basic systems, or the kinds and quality of materials, finishes or
equipment which could not reasonably have been foreseen or assumed from the
Construction Documents and intent of the Design at the time of submitting and accepting
of the GMP. Construction Cost shall also include the compensation of the CM and CM's
purchase and rental/lease agreements, subcontracts and consultants.
5.1.3 Construction Cost does not include the compensation of the CONSULTANT and
CONSUL T ANT's subconsultants, the costs of the land, rights-of-way, financing or other
costs which are the responsibility of the TOWN.
5.2 RESPONSIBILITY FOR CONSTRUCTION COST
5.2.1 The CONSULTANTs review of the TOWNs Project budget and of preliminary estimates
of Construction Cost or detailed estimates of Construction Cost prepared by the CM is
solely for the CONSULTANT's guidance in the CONSULTANT's preparation of the
Construction Documents. Accordingly, the CONSULTANT cannot and does not warrant
the accuracy of the estimates of the CM, or warrant or represent that bids or negotiated
prices will not vary from the TOWN's Project budget or from any estimate of
Construction Cost or evaluation reviewed by the CONSULTANT,
5.2.2 In the event that the CMs estimate or the lowest bona fide bid or negotiated proposal
received by the TOWN exceeds the TOWN's budget for reasons other than those
described in Section 3.2, the modification of Contract Documents shall be the limit of the
CONSULTANT's responsibility. The CONSULTANT shall be entitled to compensation
of Phase I work in accordance with this Agreement for all services performed whether or
not the Construction Phase is commenced.
ARTICLE 6 DISPUTE RESOLUTION
6.1 Parties to this Agreement agree to proceed in good faith and to seek to resolve claims,
disputes or other matters in question between the parties to this Agreement arising out of
or relating to this Agreement or breach thereof in a timely manner and at the lowest
possible level.
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Authorization of Services No.5
6.2 The Party who identifies an issue which may become a dispute or claim shall document
the issue by notifying the other Party in writing within a reasonable time after the issue,
claim, dispute or other matter in question has arisen or been identified.
6.3 The two Representatives shall first attempt to resolve the issues between them.
6.4 If the two Representatives are not able to resolve the issue satisfactorily, then the Parties
agree to seek resolution through mediation. The Representative of either party who has
reason to believe that resolution can not be reached by the Representatives shall notify
the other Party of such belief and request that a mediation panel be formed and convened
and the issue be presented to this panel for resolution.
6.4.1 The mediation panel shall consist of three members, one member selected by each party,
and the third member be selected by mutual agreement of the two members. Panel
members shall not be an employee nor an agent of either party.
6.4.2 Neither party to this Agreement shall be bound by the findings, recommendations rulings
or other resolution of the mediation panel or accept such findings, recommendations,
rulings or resolutions unless the parties mutually agree in writing to accept and be bound
by such findings, recommendations, rulings or resolutions.
6.4.3 The cost of mediation shall be borne equally by the parties to this Agreement.
6.5 If the claims, disputes or other matters in question between the parties to this Agreement
arising out of or relating to this Agreement or breach thereof can not be resolved by the
Representatives nor by mutual acceptance of mediation, then such claims, disputes or
other matters in question shall be subject to and decided by binding arbitration in
accordance with the Construction Industry Arbitration Rules of the American Arbitration
Association currently in effect unless the parties mutually agree otherwise.
6.5.1 Demand for arbitration shall be filed in writing with the other party to this Agreement
and with the American Arbitration Association. A demand for arbitration shall he made
within a reasonable time after the claim, dispute or other matter in question has arisen and
attempts to resolve the issues directly by the Representatives or through mediation have
failed. In no event shall the demand for arbitration be made after the date when institution
of legal or equitable proceedings based on such claim, dispute or other matter in question
would be barred by the applicable statutes of limitations.
6.5.2 No arbitration arising out of or relating to this Agreement shall include, by consolidation,
joinder or in any other manner, an additional person or entity not a party to this
Agreement, except by written consent containing a specific reference to this Agreement
signed by the TOWN, CONSULTANT, and any other person or entity sought to be
joined. Consent to arbitration involving an additional person or entity shall not constitute
consent to arbitration of any claim, dispute or other matter in question not described in
the written consent or with a person or entity not named or described therein. The
foregoing agreement to arbitrate and other agreements to arbitrate with an additional
Marana Airport Terminal Building
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Authorization of Services No.5
person or entity duly consented to by the parties to this Agreement shall be specifically
enforceable in accordance with applicable law in any court having jurisdiction thereof.
6.5.3 Costs of arbitration shall be borne equally by the parties to this Agreement.
6.6 Mediation, arbitration, litigation and any other action arising from claims, disputes or
other matters in question between the parties to this Agreement arising out of or relating
to this Agreement or breach thereof, shall be conducted in Pima County, Arizona at a
location mutually agreed upon by the parties.
6.7 LIMIT A TION OF DAMAGES
Notwithstanding any other provision of this agreement to the contrary, the parties hereto
mutually agree that neither party shall be liable to the other for any indirect, incidental,
consequential, exemplary, punitive or special damages or loss of income, profit or
savings of any party, including third parties, arising directly or indirectly from the
parties' relationship under this agreement or applicable law, including but not limited to
claims based on contract, equity, negligence, intended conduct, tort or otherwise
(including breach of warranty, negligence and strict liability in tort).
ARTICLE 7 MISCELLANEOUS PROVISIONS
7.1 Unless otherwise provided, this Agreement shall be governed by the law of the place
where the Project is located
7.2 Terms in this Agreement shall have the same meaning as those in the edition of ALA
Document A20l/-1 997, General Conditions of the Contract for Construction, CM-
Adviser Edition, current as of the date of this Agreement.
7.3 The TOWN and CONSULTANT waive all rights against each other and against the CM,
Contractors, and the consultants, agents and employees of any of them for damages, but
only to the extent covered by property insurance during construction, except such rights
as they may have to the proceeds of such insurance, General Conditions of the Contract
for Construction, CM-Adviser Edition, current as of the date of this Agreement. The
TOWN and CONSULTANT each shall require similar waivers from their CM,
Contractors, consultants, agents, and persons or entities awarded separate contracts
administered under the TOWN's own forces. TOWN agrees that the CONSULTANT
will be named as an additional insured under the CM's commercial general liability
insurance for this Project. Except for negligent acts and defects in the plans and
specifications, TOWN agrees to indemnify and defend CONSUL T ANT and its
subconsultants against claims made by the CM (including in its capacity as Contractor)
unless such claims are for CONSULTANT's or its subconsultants' negligent acts, errors
or omissions in the plans and specifications.
7.4 The TOWN and CONSUL T ANT, respectively, bind themselves, their partners,
successors, assigns and legal representatives to the other party to this Agreement and to
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Authorization of Services No.5
the partners, successors, assigns and legal representatives of such other party with respect
to all covenants of this Agreement. Neither TOWN nor CONSULTANT shall assign this
Agreement without the written consent of the other.
7.5 This Agreement represents the entire and integrated agreement between the TOWN and
CONSUL T ANT and supersedes all prior negotiations, representations or agreements,
either written or oral. This Agreement may be amended only by written instrument signed
by both TOWN and CONSULTANT,
7.6 Nothing contained in the Agreement shall create a contractual relationship with or a
cause of action in favor of a third party against either the TOWN or CONSULTANT.
7.7 The CONSULTANT and CONSULTANT's sub consultants shall have no responsibility
for the discovery, presence, handling, removal or disposal of, or exposure of persons to
hazardous materials in any form at the Project site, including but not limited to asbestos,
asbestos products, polychlorinated biphenyl (PCB) or other toxic substances.
7.8 The CONSULTANT shall have the right to include representations of the design of the
Project, including photographs of the exterior and interior, among the CONSULTANT's
promotional and professional materials. The CONSULTANT's materials shall not
include the TOWN's confidential or proprietary information if the TOWN has previously
advised the CONSULTANT in writing of the specific information considered by the
TOWN to be confidential or proprietary. The TOWN shall provide professional credit for
the CONSULTANT on the construction sign and in the promotional materials for the
Project.
ARTICLE 8 BASIS OF COMPENSATION
The TOWN shall compensate the CONSULTANT as follows:
8. I MANNER OF PAYMENT
On or as soon as practicable after the first day of each month, CONSULTANT shall
prepare and submit to TOWN an invoice covering costs incurred during the previous
month based on an estimate of the work completed to date. A progress report shall
accompany each invoice. TOWN shall pay to CONSULTANT within thirty days after
receipt of the invoice the amount shown to be due,
8. I. I Consultant shall satisfY the TOWN by affidavit that all bills for labor and materials
contracted by the Consultant have been paid, and shall complete and submit to the
TOWN a certification relinquishing any and all claims or right or lien under, in
connection with, or as a result of the foregoing work before final payment shall be made.
8. 2 CONSULTANT'S FEE
8.2. I CONSUL T ANT shall provide a detailed Scope of Services (Exhibit "A") as described
above and provide a detailed Fee Breakdown (Exhibit "B") for the not-to-exceed Lump
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Authorization of Services No.5
Sum Fee as listed below. CONSULTANT will not proceed with any phase without the
TOWN's prior authorization.
Phase I
Schematic Design Fee
$108,552.56*
Phase II
Design Development through GMP Fee
$224,102.86*
Phase III
Construction Phase Fee
$130,486.05*
TOTAL NOT-TO-EXCEED LUMP SUM FEES FOR SERVICES $463,141.56*
*It is understood by the TOWN that the fees listed above are only valid under a scenario
wherein the terminal building and the restaurant are designed and constructed
simultaneously. If, for any reason the design and/or construction of the terminal and/or
the restaurant are disconnected and designed and/or constructed under separate schedules,
these fees will be re-negotiated.
8.3 CHANGES IN WORK
8.3.1 Significant changes in the scope, character, or complexity of the work or services in
addition to those specified in the Scope of Services may be negotiated if the TOWN
determines that such changes are desirable and necessary. Authorization to perform
additional service shall be in writing, and shall specifY the basis of CONSULTANT'S
fee. No changes in scope of work or amendments to this Agreement shall be made
without prior written approval of the TOWN. Changes increasing the amount of
CONSUL T ANT'S compensation shall be incorporated in written supplemental
agreements to this Agreement. CONSULTANTS will supply fee estimates for such
additional services on request of the TOWN.
ARTICLE 9 OTHER CONDITIONS OR SERVICES
9.1 The parties acknowledge and agree that Sundt Construction will be serving in the
capacity of "CM" during the pre-construction phase, and may also be serving in the
capacity of "CONTRACTOR" and CM during the construction phase. With respect to
any construction on the Project which is performed by the CM, references in this
agreement to the "Contractor" shall be deemed to mean the CM in his role as
CONTRACTOR during the construction phase and any subcontractor contracted to
provide goods or services that contribute to the Work associated with the Project. The
parties further acknowledge and agree that the agreement between TOWN and CM may
not be executed at the time TOWN and CONSULTANT enter in to this Agreement.
Accordingly, CONSULTANT reserves the right to request additional revisions to this
Agreement based on the final terms of the Agreement between TOWN and CM, and
TOWN shall not unreasonably withhold its consent to any such requested revisions,
TOWN also agrees to ensure that such agreement between TOWN and CM includes the
following provision:
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Authorization of Services No.5
"To the fullest extent permitted by law and to the extent claims, damages
losses or expenses are not covered by Project Management Protective
Liability insurance purchased by the CONTRACTOR, the CONTRACTOR
shall indemnify and hold harmless the OWNER, CONSULTANT,
CONSULTANT'S Subconsultants, and agents and employees of any of
them from and against claims, damages, losses and expenses including but
not limited to attorney's fees arising out of or resulting from performance
of the Work, provided that such claim, damage, loss or expese is
attributable to bodily injury, sickness, disease or death or to injury to or
destruction of tangible property (other than the Work itself), but only to the
extent caused by the negligent acts or omissions of the CONTRACTOR, a
Subcontractor, anyone directly or indirectly employed by them or anyone
for whose acs they may be liable, regardless of whether or not such claim,
damage, loss or expense is caused in part by a party indemnified
hereunder. Such obligation shall not be construed to negate, abridge, or
reduce other rights or obligations of indemnity which would otherwise
exist as to a party or person described in this paragraph.
In claims against any person or entity indemnified under this paragraph by
an employee of the CONTRACTOR, Subcontractor, or anyone directly or
indirectly employed by them or anyone for whose acts they may be liable,
the indemnification obligation under the above paragraph shall not be
limited by a limitation on amount or type of damages, compensation or
benefits payable by or for the CONTRACTOR or a Subcontractor under
workers' compensation acts, disability benefit acts or other employee
benefit acts. "
9.2 The TOWN acknowledges that the CONSULTANT is not responsible for the CM's
ability or inability to secure reasonable bids with acceptable performance schedules,
given the CONSULTANT provides reasonable and timely Contract Documents that have
been approved by the TOWN and are in accordance with the scope of the project.
9.3 LIMITATION OF DAMAGES
Notwithstanding any other provision of this agreement to the contrary, the parties hereto
mutually agree that neither party shall be liable to the other for any indirect, incidental,
consequential, exemplary, punitive or special damages or loss of income, profit or
savings of any party, including third parties, arising directly or indirectly from the
parties' relationship under this agreement or applicable law, including but not limited to
claims based on contract, equity, negligence, intended conduct, tort or otherwise
(including breach of warranty, negligence and strict liability in tort.)
9.4 W ARRANTIES- EXCLUSION OR LIMIT A TION
CONSUL T ANT does not make, give or extend, and the TOWN waives any warranties,
representations or guarantees of any kind or nature, express or implied, arising by law,
statute, in contract, civil liability or tort, or otherwise, concerning the transaction which is
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Authorization of Services No.5
the subject of this Agreement, or the work, including without limitation any performance
guaranty and any implied warranty as to merchantability or fitness for a particular
purpose or arising from a course of dealing or usage of trade as to any equipment,
materials, or work furnished under this agreement.
In witness whereof, the parties hereto enter into this AGREEMENT on the date first written
above.
TOWN OF MARANA:
Charles Mangum
Airport Director
Date
APPROVED AS TO FORM:
Frank Cassidy, Town Attorney
Date
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Authorization of Services No.5
CARTER & BURGESS INC.
By~ l I -eO
Fred Tallarico, Vice President
~O/'o7
Date
751246210
Federal Tax ID Number
ATTEST:
Jocelyn Bronson, Town Clerk
Date
Marana Airport Terminal Building
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Authorization of Services No.5
EXHIBIT "A II
Detailed Scope of Services
SCHEMA TIC DESIGN PHASE:
Site Desi!::Jn (Terminal and Corporate Hanaar):
A. Visit site for familiarization and evaluation of site conditions.
B. Meet with regulatory authorities to determine site regulatory influences.
Site Data Analysis (Terminal and Corporate Hanaar):
A. Review site development criteria:
1. Provided by Owner.
2. Developed based on Owner's requirements and alternatives.
3. Gathered during site investigation.
Site Concepts (Terminal and Corporate Hanaar):
A. Perform initial site studies and alternatives:
1. Study site building forms and massing.
2. Study site access and circulation.
3. Study views to and from building.
4. Study solar and shading influences.
5. Study concepts for grading, paving, landscape and hardscapes.
6. Study acoustics and other appropriate issues.
B. Review initial site study concepts and recommendations with Owner
Site Desian (Terminal and Corporate Hanaar):
A. Prepare a site vicinity plan.
B. Prepare preliminary architectural site plan.
C. Prepare preliminary landscape/hardscape plan.
D. Coordinate update of sites survey and utility plan, produced by others and provided by
Owner.
Buildino Systems Concepts (Terminal Only):
A. Investigate building structural systems for consideration.
B. Investigate building mechanical, HVAC, plumbing, and electrical systems for consideration.
C. Prepare report of system recommendations.
Facility Desion (Terminal and Hanaar):
A. Civil:
1. Prepare Preliminary grading and drainage plans which which will include; low outfall
elevations, high curb elevations, finish floor elevations, drainage areas and retention
basin sizing for the 1 DO-year, 2-hour rainfall event for both the parking lot (approximately
3 acres) and two buildings.
Landscape Desion (Terminal and Hanaar):
A. Prepare planting and hardscape plans
B. Prepare irrigation plans
Architectural Desian (Terminal and Hanaar):
A. Prepare schematic floor plans to indicate:
1. New construction.
2. Identified fixed equipment and architectural woodwork.
B. Prepare exterior elevations.
C. Prepare diagrammatic building sections.
D. Prepare typical wall sections indicating materials, relationships and construction intent.
E. Prepare key architectural details as agreed upon by both the Architect and construction
manager.
F. Prepare a perspective sketch of the building exterior with elevations.
G. Perform a building code analysis.
H. Prepare outline specifications manual, including building systems outline specifications.
Buildina Systems Desian (Terminal Only):
A. Structural:
1. Prepare schematic structural drawings identifying proposed methods and
materials, including:
a. Floor plans indicating proposed structural bay arrangements.
b. Typical framing details.
c. Typical foundation and details.
d. Typical sections.
2. Prepare outline specifications.
B. Mechanical, HVAC and Plumbing:
1. Prepare schematic mechanical, HVAC and plumbing drawings identifying
proposed methods and materials, including:
a. Equipment room layouts indicating major equipment only.
b. One-line HVAC duct layout and/or preliminary mechanical piping diagram(s).
c. Plumbing fixture locations and one-line diagram(s)
d. Schematic narrative description of proposed mechanical, HVAC and plumbing
systems.
2. Prepare outline specifications.
C. Electrical:
1. Prepare schematic electrical drawings identifying proposed methods and
materials, including:
a. Equipment room layouts indicating major equipment only
b. On-line distribution diagrams.
c. Schematic narrative description of proposed electrical system.
2. Prepare outline specifications.
D. Interior design
1. Prepare schematic space plan(s) to indicate new furnishings and equipment.
2. Prepare preliminary color studies, coded to the schematic drawings, to include
photographs, catalogue cuts, fabric samples, wood finishes, furniture and accessories
selection, and others as necessary to indicate and clarify design intent. Prepare
preliminary outline specs and descriptive literature for specialized furnishing or
equipment products.
3. Make modifications per Owner's review and input.
4. Suggest type and location of artwork.
Schematic Packaoe Documentation (Terminal and Corporate Hanoar):
A. Prepare one (1) set of colored presentation boards of the site plan, each individual floor
plan, elevations, building sections, and a perspective sketch of the building exterior and
interior with elevations from the front, back and sides (1 colored presentation board for
each).
B. Prepare 20 coil bound 11 x17 page copies of the colored presentation boards described
above with brochures of the colored site plan(s), elevation section(s), perspective sketch,
photographs of model and written narrative.
C. Provide a CD with a .JPG file and .PDF file of the colored presentation boards. Provide a
.doc file and .PDF file of the written narrative.
D. Provide an order of magnitude independent construction cost estimate to be used for
comparison against CM's estimate (Terminal only).
MeetinQs:
A. Attend a maximum of 8 meetings with the Owner to review and present project data and
documentation. In addition the Consultant shall host a 3-5 consecutive day Schematic
Design Workshop with the Town.
B. Produce minutes of these meetings and distribute to meeting attendees and other
appropriate parties.
C. Make a PowerPoint presentation to the Town Council for approval of the schematic design
in order to move to Phase II - Design Development.
DESIGN DEVELOPMENT PHASE (Terminal Only):
Site DesiQn:
A. Coordinate update of site survey and utility plan, as required by Schematic Design Phase
development.
B. Prepare final site plan indicating paving, parking, sidewalks, curbs, fences, decorative walls,
retaining walls, and other improvements.
C. Prepare final landscape plan with material schedule (size and species) and irrigation system
layout.
D. Prepare site details as applicable.
Landscaoe DesiQn:
A. Prepare planting and hardscape plans
B. Prepare irrigation plans
Architectural DesiQn:
A. Prepare plans of all floor levels and roof levels to indicate:
1. Building interior and exterior dimensions.
2. Various partition and wall types.
3. Smoke and fire separations as required by regulatory agencies.
4. Locations of fixed equipment and architectural woodwork.
5. Furniture and moveable equipment layouts (1/4 = 1 '-0" for all areas; 1/2"=1 '-0"" for
specialty areas as applicable.
B. Prepare exterior elevations.
C. Prepare typical wall sections indicating materials, relationships and construction intent.
D. Prepare typical roofing and sheet metal details.
E. Prepare stair and elevator details.
F. Prepare miscellaneous specialties and equipment schedules.
G. Prepare fixed equipment schedule, location and service requirements.
H. Identify material and color selections.
I. Perform building code analysis.
J. Prepare Design development specifications.
K. Waterproofing, damproofing and drainage types and typical details.
L. Signing Plan
M. Building, parking lot, and sidewalk lighting design
N. Entry Monument Design
Buildina Systems:
A. Structural:
1. Prepare foundation plans to indicate:
a. Foundations and footing sizes, including reinforcing and elevations.
b. Below grade wall thickness.
2. Prepare structural framing plans and other drawings, indicating:
a. Horizontal and vertical structural member size and sample reinforcing if reinforced
concrete.
b. Typical floor and roof structural systems, sizes, thickness and construction details.
c. Typical exterior wall structural system and supports, bracing ties and reinforcing as
appropriate
d. Lateral bracing methods and locations.
e. Fireproofing, NFPA designation.
f. Design live and dead loading tabulations for all floors, areas and roofs.
3. Prepare Design Development specifications.
Mechanical and HVAC Systems:
A. Prepare mechanical and HVAC and equipment plans and other drawings,
indicating:
1. Location, sizes types and schedule of equipment.
2. Mechanical systems chilled water, hot water, steam and condensate piping diagrams.
3. System riser diagrams.
4. Equipment connections, supports and standard details.
5. HVAC ductwork locations, sizes and distribution accessories.
6. HV AC piping, locations and sizes for piping greater than 1" diameter.
7. Basic control schematics.
8. HVAC load calculations.
B. Prepare Design Development specifications.
Plumbina Systems:
A. Prepare plumbing system and equipment plans and other drawings, indicating:
1. Fixture locations and schedule.
2. Equipment location and schedules.
3. Waste and vent riser diagram with types, locations and key sizes.
4. Domestic hot and cold water piping locations and sizes for piping greater than 1
diameter.
5. Roof drainage system, location and key sizes.
B. Prepare Design Development specifications.
Electrical Systems:
A. Prepare electrical drawings and other drawings indicating:
1. Power distribution, equipment, locations, schedules and standard details.
2. Feeder sizes.
3. Emergency generator(s) location and size.
4. Uninterrupted power locations, supply and equipment, if required.
5. Grounding systems and details.
6. Interior and exterior lighting and power equipment, locations, schedules, and standard
details.
7. Fixture and switch locations and identification.
8. Typical receptacle and power outlet locations.
9. Special requirements as applicable.
10. Motor control schedule with starter circuit sizing.
11. Fire protection systems, equipment, locations schedules and standard details.
12. Lighting protection systems, equipment, locations schedules and standard details.
13. Communication and alarm systems, equipment, locations schedules and standard
details.
B. Prepare Design development specifications.
Interior Desian:
A. Prepare design development drawings, on the base sheets provided by architect, and other
documents to identify and describe:
1. Furnishings, fixtures, equipment and accessories locations, coded to color boards.
2. Signage, per Owner's standards.
B. Review colors, materials and finishes with the architect. Coordinate recommendations on
colors, materials and finishes not otherwise specified for the project in the architectural
documents.
C. Prepare presentation material to include furnishings, fixtures, equipment, accessories,
refurbishment costs for existing furniture and equipment as applicable, floor, wall and
window treatment, special lighting, equipment and other design elements. Presentation
material shall be in the form of completed color board(s) coded to the drawings and to
include photographs, catalogue cuts, fabric cuts and samples, paints samples, wood
finishes, furniture, architectural finishes, colors and materials, accessories selection, and
others elements as necessary to clarify design intent.
D. Provide descriptive literature and pertinent specifications for designed elements.
E. Make modifications per presentation review and input.
F. Provide a detailed independent construction cost estimate to be used for comparison
against CM's estimate.
MeetinQs:
A. Attend a maximum of 8 meetings with the Owner to review and present project data and
documentation.
B. Produce minutes of these meetings and distribute to meeting attendees and other
appropriate parties.
C. Make up to two PowerPoint presentations to update the Town Council on the status of the
project.
CONSTRUCTION DOCUMENTS PHASE (Terminal Only):
Documentation:
A. Prepare construction documents (drawings and specifications) necessary to bid and
construct the project. Construction documents shall be provided for the following
disciplines:
1. Architectural
2. Structural
3. Mechanical/HVAC/plumbing/fire protection.
4. Electrical
5. Civil
a. Prepare final Grading and Drainage Plan showing plan grades, identifying curb and
gutter, finish floor elevations, pavement grades, curb and gutter grades, handicap
ramp elevations, storm drain if necessary, detention basin locations and or
underground detention systems if necessary, and applicable construction details to
support the construction documents for both the parking lot (approximately 3 acres)
and two buildings. It is understood that the detention basin design is to be done
under separate contract and that this task includes only the conveyance system to
the detention basin location. It should be noted that as part of this scope at a
minimum the basin and underground locations be identified and sized as to ensure
the proposed grading and drainage design will both comply with local regulations and
the design will drain the site.
b. Prepare utility plans depicting the locations, invert elevations and applicable plan and
profiles along with construction details to support the construction documents for
both the parking lot (approximately 3 acres) and two buildings.
c. Storm Water Management Plan: Prepare a Storm Water Management Plan per
ADEQ Requirements. All projects over 1 acre will have this requirement for both
the parking lot (approximately 3 acres) and two buildings.
d. Horizontal Control Plan: Prepare a coordinate correct base plan for the
proposed Restaurant and terminal including up to 100' overlap to depict the
intended design based on topographic and boundary survey information
provided in AutoCAD format along with survey point file from Urban Engineers.
B. Interior design:
1. Prepare construction documents, on base sheets provided by the architect, and other
documents to identify and describe:
a. Furniture built-ins, cabinets and specialized millwork not included in architectural
documents.
b. Specifications for all furniture fixtures and equipment, window treatment, wall
coverings and floor coverings coded to the schedule on the drawings. Each
specification shall be accompanied by a catalogue cut sheet, binder sample of
finish color and/or materials for purchasing and coordinating with construction
documents.
c. Coordinate locations of HVAC diffusers, registers and thermostats; electrical
lighting switching receptacles, special fixtures, emergency lighting and special
outlets, communication/data/telephone outlets; plumbing fixtures, drinking
fountains, etc. to avoid interferences with furniture, fixtures and equipment.
d. Accessories, artwork, interior signage and interior landscape.
e. Produce interior design: Floor plans, furniture plans and elevations.
f. Meet with furniture vendor(s) to specify procure and finalize purchase order.
C. Landscape Architecture
1. Prepare planting and hardscape plans
2. Prepare irrigation plans
D. Lighting Design (additional services)
E. Other (additional services) (Note: If above referenced disciplines, noted as additional
services, are to be provided through Owner, by others, coordination of documents with
these disciplines is included as part of basic services)
F. Provide a detailed independent construction cost estimate and peform reconcilliation
activities with the eM's estimate.
MeetinQs:
A. Attend a maximum of 4 meetings with the Owner to review and present project data and
documentation.
B. Produce minutes of these meetings and distribute to meeting attendees and other
appropriate parties.
Exclusions:
Consulting services relating to any of the following tasks may be completed by Consultant
if negotiated under a separate contract for an additional fee; but are presently specifically
excluded from this Agreement:
y Hazardous wastes
y HEC I or II studies
y Bus Bay or decellane plans
y Offsite Utility improvements
y Rezoning
Y Lot SpliULand Division
y Traffic studies
Y Construction staking
y Specifications
y Specifications review
y Box culverts
y Sump pump design
y As-builts and retention as-builts
y Water capacity calculations
y Gas or electric design Quantities & cost estimates, except as required for plan
approval Retaining wall design
y Street light design
y Offsite Storm drain
y Offsite Paving Plans
y Offsite Utility Plans
y SRP Irrigation; 404 permits or determination
y Dry utility coordination
EXHIBIT "B"
Detailed Fee Breakdown
Carter Burgess, Inc.
(includes fees of all subconsultants)
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CARTER BURGESS
MARANA REGIONAL AIRPORT
FEE ESTIMATE - NEW TERMINAL FACILITY
SCHEMA TIC DESIGN
1/31/20078:46
I
ESTlMA TE OF DIRECT LABOR FEE I I I Total
I Project Manager! Engineer CADD I Clerical I Manhours
"Wi fit
Client Meetings 11 11
DesiQn Team Meetings 13 13
Pre/Post Meeting Activities 7 7
Miscellaneous Pro.ect Management Activities 17 17
5 Day SD Workshop 20 20
II
Coordination with Survey Sub 2 21 4
Create Base Plan Layout 2 4 6
FormattinQ and Clean",,- 4 4 8
;m;, 1&& II "111 ill,
Water Service 4 7 11
Sanitary Sewer 4 7 11
Review Marana Mater Drainage Plan 1 1
Site Analysis and Storm Drainage Design 4 7 11
Gas Service 2 2 4
Coordination of Utility Plans with Other Design Organizations(elect, etc.) 2 2 4
Create Details 2 4 6
ill 111; )f"
Develop Preliminary Contours/Profiles 4 4
Generate DTM and Contours 3 3
Finalize Grading Plans 0
Final Revisions 0
111
Assemble Site Plan Drawings 2 2 4
Prepare Narrative Design Report 6 6
OAlOC 0
Final Revisions 4 4
Comment Resolution 4 4
it: 111 !II! 111% II ""W ~ ~, 111
Analysis and Pavement Design 0
Horizontal Layout Plan 2 4 6
Pavement Marking Plan 0
Create Details 0
Comment Resolution 0
II % % '+0
CADD 0
Technical Specifications 0
OAlOC 0
Final Revisions after 90% Design Review Meeting 0
TOTAL MANHOURS 68 38 53 6 165
DIRECT HOURLY RATE $66.00 $37.63 $2625 $21.0
TOTAL DIRECT LABOR (DL) COST $4,488.00 $1 ,429.~' $1,391.2 $126.0 $7,435.1
TOTAL OVERHEAC 1.60 $7,180.8 $2,287.9 $2,2260 $201.6 $11,896.3
TOTAL BREAKEVEN LABOR COST (total DL cost+ OH) $11,668.8 $3,717.84 $3,617.2 $327.6 $19,331.4
PROFIT AT 14% $1,633.6 $520.50 $506.4 $45.86 $2,706.41
TOTAL ESTIMATED LABOR FEE $13,302.4 $4,238.3 $4,123.67 $373.41 $22,037.9
CARTER BURGESS
MARANA REGIONAL AIRPORT
FEE ESTIMATE. NEW TERMINAL FACILITY
SCHEMA TIC DESIGN
1/31/20078:46
ESTlMA TE OF OTHER DIRECT COSTS (ODCs)
TOTALS
Travel 3 TriDs @ 220 mi . $0.485/mi $ 320.10
Lodaina 4 niahts @ $100/niaht 5-Dav WorkshoD) $ 400.00
Printina $ 550.87
Copies $ 250.00
Fedex 1 Ma iI $ 500.00
TOTAL ESTIMATED ODCs $2,020.9
ESTlMA TE OF SUBCONSUL TANT COSTS
TOTALS
Dick & Fritsche Design group $69,232 5
Kleinfelder - Geotechnical Testing $7,5800
TOTAL SUBCONSUL TANT COSTS $76,812.5
ADMINISTRATIVE FEE AT 10% $7,681.2t
TOTAL ESTIMATED SUBCONSULTANT COSTS $84,493.71
SUMMARY
TOTALS
TOTAL ESTIMATED LABOR FEE (Design Services $22,0379
TOTAL ESTIMATED ODCs $2,020.9
TOTAL ESTIMATED SUBCONSUL TANT COSTS $84,493.7
TOTAL ESTIMATED COST $108,552.6
CARTER BURGESS
MARANA REGIONAL AIRPORT
FEE ESTIMATE - NEW TERMINAL FACILITY
DESIGN DEVELOPMENT AND CONSTRUCTION DOCUMENTS
1/31/20078:46
ESTlMA TE OF DIRECT LABOR FEE Total
Pro"ect Manager Engineer CADD Clerical Manhours
fi0" ~
Client Meetinos 20 20
Design Team MeetinQs 23 23
Pre/Post Meetina Activities 13 13
Miscellaneous Proiect Manaaement Activities 30 30
5 Dav SD WorkshoD 0
Coordination with Survey Sub 0
Create Base Plan Layout 0
Formatting and CleanuD 0
% fi0 pm;
Water Service 6 10 16
Sanitary Sewer 6 10 16
Review Marana Mater Drainage Plan 2 2
Site Analysis and Storm Drainage Desion 6 10 16
Gas Service 3 4 7
Coordination of Utilitv Plans with Other Desian Oraanizations elect, etc. 3 3 6
Create Details 3 8 11
0
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Develop Preliminary ContourslProfiles 8 8
Generate DTM and Contours 5 5
Finalize Gradina Plans 3 3
Final Revisions 4 4
0
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Assemble Site Plan DrawinQs 4 6 10
Prepare Narrative Desi n Report 4 6 10
ONOC 4 4
Final Revisions 4 4 8
Comment Resolution 2 4 6
ill ~ , ~m "1'
Anal sis and Pavement Design 1 1 2
Horizontal Layout Plan 0
Pavement Markina Plan 1 6 7
Create Details 1 4 5
Comment Resolution 2 4 6
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CADD 16 40 56
Technical Soecifications 8 8 16
ONOC 2 2
Final Revisions after 90% Desion Review Meeting 4 6 2 12
TOTAL MANHOURS 86 98 124 16 324
DIRECT HOURLY RATE $66.00 $37.63 $26.25 $2100
TOTAL DIRECT LABOR (DL COST $5,676.00 $3,687.74 $3,255.00 $336.00 $12,954.74
TOTAL OVERHEAD 1.60 $9,081.60 $5,900.38 $5,208.00 $537.60 $20,727.58
TOTAL BREAKEVEN LABOR COST (total DL cosH OH $14,757.60 $9,588.12 $8,463.00 $873.60 $33,682.32
PROFIT AT 14% $2,066.06 $1,342.34 $1,184.82 $122.30 $4,715.53
TOTAL ESTIMATED LABOR FEE $16,823"66 $10,930.46 $9,647.82 , $995.90, $38,397.85
CARTER BURGESS
MARANA REGIONAL AIRPORT
FEE ESTIMATE - NEW TERMINAL FACILITY
DESIGN DEVELOPMENT AND CONSTRUCTION DOCUMENTS
1/31/2007846
ESTlMA TE OF OTHER DIRECT COSTS (ODCs)
TOTALS
Travel 10 Tri s@220 mi' $0485/mi $ 1,067.00
Lodaina $
Printing $ 400.87
Copies $ 250.00
Fedex I Mail $ 349.53
TOTAL ESTIMATED DOCs $2,067,40
ESTlMA TE OF SUBCONSUL TANT COSTS
TOTALS
Dick & Fritsche Design group $166,943.28
Kleinfelder - Geotechnical Testing $0.00
TOTAL SUBCONSULTANT COSTS $166,943.28
ADMINISTRATIVE FEE AT 10% $16,694.33
TOTAL ESTIMATED SUBCONSULTANT COSTS $183,637.61
SUMMARY
TOTALS
TOTAL ESTIMATED LABOR FEE Desian Services) $38,397.85
TOTAL ESTIMATED ODCs $2,06740
TOTAL ESTIMATED SUBCONSUL TANT COSTS $183,637.61
TOTAL ESTIMATED COST $224,102.86
CARTER BURGESS
MARANA REGIONAL AIRPORT
FEE ESTIMATE - NEW TERMINAL FACILITY
CONSTRUCTION PHASE
MAN HOURS
ESTlMA TE OF DIRECT LABOR FEE Total
PM Enaineer CADD Clerical
Manhours
0
1i0
In-office SUDoort I RFII Submittals Review & Coord 4 40 16 60
12 Site Visits Review Work Attend Meetina x.5 - concurrent wi Restaurant 48 24 72
12 Continnent Site Visits- x .5 - concurrent wI Restaurant 48 24 72
2 Punch List Site Visit x 2 oersons x.5 - concurrent wI restaurant 8 8
Prepare Record Orawinns from Contractor As-builts 2 4 16 8 30
0
TOTAL MANHOURS 110 92 16 24 242
DIRECT HOURLY RATE $6600 $3763 $2625 $2100
TOTAL DIRECT LABOR IDLl COST $7,260.00 $3,461.96 $420.00 $504.00 $11,64596
TOTAL OVERHEAD OH AT 1.60 $11,616.00 $5,539.14 $672.00 $806.40 $18,633.54
TOTAL BREAKEVEN LABOR COST total DL cost+ OH $18,876.00 $9,001.10 $1,092.00 $1,310,40 $30,279.50
% PROFIT AT 14% $2,642.64 $1,260.15 $152.88 $183.46 $4,239.13
TOTAL ESTIMATED LABOR FEE $21,518,64 $10,261,25 $1,244.88 $1,493,86 $34.518.63
ESTIMA TE OF OTHER DIRECT COSTS (ODCs)
TOTALS
Travel: 26 Round Trios at 220 miles Def trio = miles at $.485 Der mile x .5 - concurrent / shared trios wi Restaurant $ 2,860,00
Per Diem Expenses I assumes no overnight. $20/site visit/person x .5 - concurrent I shared trips wI Restaurant) $ 520,00
PrintinolCODies $ 233.00
Fedex I Mail $ 200,00
TOTAL ESTIMATED ODCs $3,813.00
ESTlMA TE OF SUBCONSUL TANT COSTS
TOTALS
DFDG $ 83,776,75
SUBCONSULTANT COSTS , $83.776.75
Admin. Fee = 10%
TOTAL SUBCONSULTANT COST
$8,377.68
$92,154.43
TOTAL ESTIMATED LABOR FEE
TOTAL ESTIMATED DOCs
TOTAL ESTIMATED SUBCONSUL TANT COSTS
TOTAL ESTIMATED COST
$34.518.63
$3.813.00
$92.154.43
$130,486,05
Dick & Fritche Design Group
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MARANA REGIONAL AIRPORT
DESIGN FEE ESTIMATE FOR PRE-CONSTRUCTION AlE SERVICES ASSOCIATED WITH TERMINAL
SCHEMATIC DESIGN PHASE
DICK & FRITSCHE DESIGN GROUP
MAN HOURS
ESTIMA TE OF DIRECT LABOR FEE ARCHITECTURAL Total
PIC PM PA DES CADD
Manhours
0
Refine Proqram-Relatinq to PrOQram, Budget, Estimate 1 2 3
0
Prepare for Schematic Design Charrette - 1 2 4 4 11
0
Schematic Desian Workshop 15 15 15 45
0
Prepare Schematic Terminal Oesian and Drawinas 0
Site Plans 1 6 6 16 29
Floor Plans 1 8 8 16 16 49
Elevation Studies -- -------1 1--- 8 8 16 -~
Buildina Section Studies 4 8 8 21
Mass Study or Character Sketch 1 16 17
Prepare Conceptual Corp Hanaar DesiQn and Drawings 0
Site Plans 1 6 6 --16 -~
Floor Plans 1 8 8 16 16
Elevation Studies 1 8 8 16 33
Buildina Section Studies 1 4 8 8 21
Mass Study or Character Sketch 1 16 17
0
Preaare Outline Soecificalions 8 8
0
Building area calculations 2 2
Code anal sis identif ina and documentina applicable codes and their application 1 2 2 5
Systems Oescri tions and Reouirements 0
0
Coordinate Schematic Desian cost estimate 4 4
0
In-House Schematic Desion review and coordination 1 4 4 8 8 25
0
Plot submittal drawings, narratives, schedules and reports and submit to CM to
Preoare Cost Estimate 1 4 5
0
Review CM Cost Estimate 1 2 3
0
Conduct Value Engineerin Analvsis 0
0
Identify CMAR Bid Packaqe Format 2 2
0
Identifv Lonq-Lead Purchase Items 1 1
0
Review Prooosed Construction Schedule 1 1
0
Review Pro'ect with Town of Marana Buildina Safetv 2 2
0
Uodate Schematic Desian Documents and submit to Owner for Review 2 2 4
0
Incorporate Owner Comments and Finalize SO Documents 2 2 4 8 16
0
Preoare City Council PackaQe 1 2 2 8 13
0
Review Pro'ect with City Council Plannina Committee 6 6
0
Uodate Drawinas to incoroorate City Council Plannina Committee Comments 1 1 8 10
0
Present Pro'ect to Citv Council for Aooroval 6 6
0
AlE Pro'ect team meetinQs 3 3 6
0
AlC Pro'ect team meetinQs (6 included - 3 in Tucson and 3 in Phoenix 6 12 18
0
AlD Pro"ect team meetinas 2 included 6 6 12
0
Develoo minutes of all meetinas, desian reviews, teleohone conversations, etc 8 8
0
0
TOTAL MAN HOURS 56 107 130 65 156 514
DIRECT HOURLY RATE $55.11 $37.83 $31.40 $27.76 $24.2
TOTAL DIRECT LABOR Dl COST $3,086.16 $4,04781 $4.082.00 $1.804.40 $3,779.8 $16,800.2
TOTAL OVERHEAD (OH AT 1.90 $5,86370 $7,690.84 $7,755.80 $3,42836 $7,181.7 $31,920.4
TOTAL BREAKEVEN LABOR COST total DL cosH OH $8,949.86 $11.738.6 $11.837.80 $5,232.76 $10,9616 $48,7207
PROFIT AT 10' $894.99 $1,173.86 $1,18378 $523.28 $1,096.1 $6.820.9
TOTAL ESTIMATED LABOR FEE $9 844.85 $12912.51 $13021.58 $5 756.04 $12057.8 $55.541.6
MARANA REGIONAL AIRPORT
DESIGN FEE ESTIMATE FOR PRE-CONSTRUCTION AlE SERVICES ASSOCIATED WITH TERMINAL
SCHEMATIC DESIGN PHASE
DICK & FRITSCHE DESIGN GROUP
ESTlMA TE OF OTHER OIRECT COSTS (ODCs)
TOTALS
Travel: 4 Round Trips at 220 miles ner tnn = 880 miles at $X.485 ~r mile $ 427.00
Lodging - 3 Rooms x 3 Nights at $50 per room-night $ 450.00
Printina/CoDies $ 1,000.00
Fedex I Mail $ 100.00
TOTAL ESTIMATED ODCs 51,977.0
SUBCONSUL TANT COSTS
TOTALS
SAGE Landscape Architects $ 1,300.00
Paul-Koehler, Structural Enaineers $ 3,000.00
Pearson En~::lineerina, Mechanical I Plumbina I F.P. $ 3,21000
Pearson Enoineering, Electrical Ennineerina $ 1,889.00
Rider Hunt Levett & Bailev, Cost Estimators $ 1,250.00
SUBCONSULTANT COSTS $10,649.0
Admin. Fee = 10%
TOTAL SUBCONSULTANT COST
$1,064.90
511,713,90
SUMMARY
TOTALS
TOTAL ESTIMATED LABOR FEE $55541.6
TOTAL ESTIMATED ODCs $1,977.Oc
TOTAL ESTIMATED SUBCONSUL TANT COSTS $11,713.9
TOTAL ESTIMATED COST 569,232,5
MARANA REGIONAL AIRPORT
DESIGN FEE ESTIMATE FOR PRE-CONSTRUCTION AlE SERVICES ASSOCIATED WITH TERMINAL
DESIGN DEVELOPMENT, PREPARATION OF CONTRACT DOCUMENTS AND GMP PROCESS
DICK & FRITSCHE DESIGN GROUP
MAN HOURS
ESTlMA TE OF DIRECT LABOR FEE ARCHITECTURAL Total
PIC PM PA DES CADD
Manhours
0
0
Undate Gode Studv I ADA Comoliance 4 4
0
Code reviews with aonrooriate Code Officials 2 2
0
Refine Pronram 1 2 3
0
Prenare for Oesion Develonmenl Workshon 1 2 4 4 4 15
0
Document and distribute meetina minutes for Desi n Develooment Workshon 3 3
0
Oevelon Desi n Develonment drawinns based unon anoroved concenl 0
Site Plan and Details 2 8 16 26
Floor Plans I Dimensions / Notes 2 8 16 26
Ceilin Plans 2 8 16 8 34
Roof Plan 2 8 8 18
Elevations 2 8 16 26
Sections 2 8 24 34
Enlaraed Plans I Stairs 2 8 16 16 42
Finish and Door Schedules 2 8 16 16 42
Furniture Plan 2 4 16 16 38
Details 2 16 16 16 50
[j[)dated Buildina area calculations and efficiency. 2 2 16 20
0
Prenare Finish Board 1 8 9
0
Preoare Desi n Develooment Soecifications 1 2 24 27
0
Plot submittal drawings. narratives. schedules and reports and submit to eM and
Estimator to Prenare Cost Estimate 2 8 10
0
Review CM Cost Estimate 1 2 3
0
Conduct Value Enaineerina Anal sis 1 2 2 5
0
Coordinate with Jurisdictional Anencies and Utilities 2 4 6
0
Undate Desi n Develooment Documents and submit to Owner for Review 4 8 12
0
Owner Review Comments Conference 6 6
0
Pick-un ONner Comments and Finalize DO Documents 4 4 8 8 24
0
AlE Pro"ect team meetinas 8 8 4 20
0
AlC Pro'ect team meetinos 4 inclued - 2 in Tucson and 2 in Phoenix 12 8 20
0
AlO Pro"ect team meetinas 2 included 12 12
0
Y4!I
0
Undate Desinn/Construction Schedule 1 2 3
0
Deve)on 100%Construction Documents 2 8 20 40 200 270
0
Preoare 100% Construction Documents Snecifications 16 4 20
Plot submittal drawings, narratives, schedules and reports and submit to CM and
Estimator to Preoare Cost Estimate 1 2 8 11
0
Review & Reconcile Cost Estimates 1 2 3
0
Final Jurisdictional Aaencv Review and Anoroval 2 2 4
0
Undate Construction Documents GMP Documents' 2 2 2 12 18
2 2
In-House Construction Documents review and coordination and Checklist 1 2 2 2 12 19
0
Finalize Construction Documents {GMP Documents and submit to CM 1 2 8 11
0
Submit Final Documents for Town of Marana Permit Review #1 6 6
0
Address Town Review Comments / Corrections 4 4 2 16 26
0
Make Final Submittal for Buildina Permit 2 2
0
AlE Pro'ect team meetin s 2 8 8 4 22
0
AlC Pro"ect team meetinos 4 included - 2 in Tucson and 2 in Phoenix 8 8 16
0
AlO Pro'ect team meetinns 2 included 12 12
0
0
MARANA REGIONAL AIRPORT
DESIGN FEE ESTIMATE FOR PRE-CONSTRUCTION AlE SERVICES ASSOCIATED WITH TERMINAL
DESIGN DEVELOPMENT, PREPARATION OF CONTRACT DOCUMENTS AND GMP PROCESS
DICK & FRITSCHE DESIGN GROUP
0
% ~
0
Answer RFls durina the Sub-biddina Process 8 2 10
0
Develop modifications/additions to drawinas and specifications addendum 5 8 8
0
Provide desi n intent interpretation of submitted material 's\ for substitutionfenuivencv 8 8
0
Review Bids with eM and Owner 6 6
0
0
0
TOTAL MANHOURS 15 185 192 170 452 1014
DIRECT HOURLY RATE $55.11 $37.83 $31.40 $27.76 $24.23
TOTAL DIRECT LABOR (DL) COST $82665 $6,998.55 $6,028.80 $4,719.20 $10.951.96 $29.525.16
TOTAL OVERHEAD (OH AT 1.90 $1,570.64 $13,297.25 $11.454.72 $8,966.48 $20.808.72 $56,097.80
TOTAL BREAKEVEN LABOR COST total DL cost+ OH $2,397.29 $20.295.80 $17.483.52 $13.685.68 $31.760.68 $85,62296
% PROFIT AT 10% $239.73 $2,029.58 $1,748.35 $1,368.57 $3.176.07 $11.987.21
TOTAL ESTIMATED LABOR FEE $2,637.01 $22,325.37 $19,231.87 $15,054.25 $34,936.75 $97,61018
ESTlMA TE OF OTHER DIRECT COSTS (ODCs)
TOTALS
Travel: 4 Round Trips at 220 miles per trip = miles at $.485 per mile $ 427.00
Lodaina $
Printing/Copies $ 1,000.00
Fedex I Mail $ 200.00
TOTAL ESTIMATED ODCs $1,627.00
ESTIMA TE OF SUBCONSUL TANT COSTS
TOTALS
SAGE Landscape Architects $ 5,700.00
Paul-Koehler, Structural Enaineers $ 17,500.00
Pearson Engineering, Mechanical! Plumbing I F.P. $ 16,753.00
Pearson Engineerina, Electrical Engineerina $ 16,848.00
Rider Hunt Levett & Bailey, Cost Estimators $ 4,750.00
SUBCONSUL TANT COSTS $61,551.00
Admin. Fee = 10%
TOTAL SUBCONSULTANT COST
$6,155.10
$67,706.10
TOTAL ESTIMATED LABOR FEE
TOTAL ESTIMATED ODCs
TOTAL ESTIMATED SUBCONSUL TANT COSTS
TOTAL ESTIMATED COST
$9761018
$1.627.00
$67,706.10
$166.943.28
MARANA REGIONAL AIRPORT
DESIGN FEE ESTIMATE FOR CONSTRUCTION AlE SERVICES ASSOCIATED WITH TERMINAL
DICK & FRITSCHE DESIGN GROUP
PIC
PM
MANHOURS
ARCHITECTURAl
PA
DES
Total
ESTIMA TE OF DIRECT LABOR FEE
CADD
Manhours
2 36 40
10 50
10 50
10 10
10 40
TOTAL MAN HOURS 16 42 480 0 80
DIRECT HDURL Y RATE $55.11 $37.83 $31.40 $27.76 $24.23
TOTAL DIRECT LABOR DL COST $881.76 $1,588.86 $15,072.00 $0.00 $1,938.40
TOTAL OVERHEAD OH AT 1.90 $1,675.34 $3.018.83 $28,63680 $0.00 $3.682.96
TOTAL BREAK EVEN LABOR COST total DL cost+ OH $2,557.10 $4.607.69 $43,708.80 $0.00 $5,62136
% PROFIT AT 10% $255.71 $46077 $4,370.88 $0.00 $562.14
TOTAL ESTIMATED LABOR FEE $2,812.81 $5,068.46 $48,079.68 $0.00 $6,183.50
4
65
65
20
52
o
618
$19.481.02
$37,013.94
$56.494.96
$7,909.29
$64,404.25
ESTIMATE OF OTHER DIRECT COSTS (ODCs)
TOTALS
Travel: 26 Round Tri sat 220 miles per trip = miles at $.485 per mile x .5 - concurrent I shared trios wI Restaurant $ 2,860.00
Per Diem Expenses' assumes no overniaht - $20lsite visit/person x .5 - concurrent I shared trios wi Restaurant $ 520.00
PrintinalCopies $ 200.00
Fedex 1 Mail $ 200.00
TOTAL ESTIMATED ODCs $3,780.00
EsnMA TE OF SUBCONSUL TANT COSTS
TOTALS
SAGE Landscape Architects $ 1,575.00
Paul-Koehler, Structural En ineers Excludes 50ecial Structurallnsoectionsl $ 3,150.00
Pearson Engineerina, Mechanical' Plumbina' F.P. $ 3.150.00
Pearson Engineering, Electrical Engineering $ 3,150.00
Rider Hunt Levett & Bailey, Cost Estimators $ 3,150.00
SUBCONSUL T ANT COSTS $14,175.00
Admin. Fee = 10%
TOTAL SUBCONSUL TANT COST
$1.417.50
$15,592.50
$64,40425
$3,780.00
$15,592.50
$83,776.75
TOTAL ESTIMATED LABOR FEE
TOTAL ESTIMATED ODes
TOTAL ESTIMATED SUBCONSULTANT COSTS
TOTAL ESTIMATED COST
EXHIBIT ltC"~
Project Schedule
Project Schedule
Schematic Design Workshop
Delivery of Schematic Documentation Package
Completion of Design Development
60% Completion of Construction Documents
Delivery of 90% Complete Construction Documents
Delivery of 100% Complete Construction Documents
Final GMP Executed with Sundt
AGENDA ITEM:
TOWN COUNCIL
MEETING
INFORMATION
MEETING DATE: May 16, 2007
TOWN OF MARANA
1.7
TO: MAYOR AND COUNCIL
FROM: Cedric Hay, Senior Assistant Town Attorney
SUBJECT: Resolution No. 2007-80: Relating to Public Works; approving and
authorizing the execution of an intergovernmental agreement between
Pima County and the Town of Marana to provide for the acquisition of
property for the 1-10 / Twin Peaks traffic interchange.
DISCUSSION
To complete the Twin Peaks / 1-10 interchange it will be necessary to acquire certain right-of-
way located in a Pima County island by purchase, donation or condemnation, with the assistance
of Pima County.
The IGA proposed for approval by this agenda item would establish the procedures by which the
Town of Marana would work in conjunction with Pima County to acquire the right-of-way nec-
essary for the interchange. Pima County agrees to cooperate with the Town to acquire the right
of way that lies within unincorporated Pima County using eminent domain if the Town cannot
acquire the property by purchase or donation. The Town will pay all costs associated with the
exercise of eminent domain. Upon recording of a Final Order of Condemnation in each action,
the County shall transfer by Quit Claim Deed ownership of all property acquired to the Town.
After completion of the Project, at grade access from the access road will be allowed by the
Town to County owned parcels within the Project area in accordance with State and local stan-
dards.
RECOMMENDATION
Staff recommends adoption of Resolution No. 2007-80, approving and authorizing the execution
of the IGA with Pima County to provide for the acquisition of property for the 1-10 / Twin Peaks
interchange.
ATTACHMENT
IGA with Pima County.
SUGGESTED MOTION
I move to adopt Resolution No. 2007-80.
{00004743.DOC /}
CIH 05/07/07
--...-..'..........._--~"~---"'.;;,--~".""""-.~~;,~,.,'"
MARANA RESOLUTION NO. 2007-80
RELATING TO PUBLIC WORKS; APPROVING AND AUTHORIZING THE EXECUTION OF
AN INTERGOVERNMENTAL AGREEMENT BETWEEN PIMA COUNTY AND THE TOWN
OF MARANA TO PROVIDE FOR THE ACQUISITION OF PROPERTY FOR THE 1-10/ TWIN
PEAKS TRAFFIC INTERCHANGE.
WHEREAS it is necessary to acquire certain right-of-way located in a Pima County island to
complete of the Twin Peaks / 1-10 interchange project; and
WHEREAS Pima County desires to assist the Town of Maran a with the property acquisition
by means of purchase, donation or condemnation; and
WHEREAS the Mayor and Council of the Town of Maran a feel it is in the best interests of
both Pima County and the Town of Marana to enter into this intergovernmental agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE
TOWN OF MARANA, that the intergovernmental agreement between the Town of Marana and
Pima County attached to and incorporated by this reference in this resolution as Exhibit A is hereby
approved, and the Mayor is hereby authorized to execute it for and on behalf ofthe Town of Mar ana.
IT IS FURTHER RESOLVED that the Town's Manager and staff are hereby directed and au-
thorized to undertake all other and further tasks required or beneficial to carry out the terms, obliga-
tions, and objectives of the intergovernmental agreement.
PASSED and ADOPTED by the Mayor and Council of the Town of Maran a, Arizona, this
16th day of May, 2007.
Mayor Ed Honea
ATTEST:
Jocelyn C. Bronson, Town Clerk
APPROVED AS TO FORM:
Frank Cassidy, Town Attorney
{00004747.DOC /}
ClH 5/07/07
WTERGOVERNMENTALAGREEMENT
BETWEEN THE TOWN OF MARANA AND PIMA COUNTY
FOR THE ACQUISITION OF PROPERTY NEEDED FOR THE
1-10 I TWW PEAKS TRAFFIC WTERCHANGE
This Agreement is between the Town of Marana, a municipal corporation of the State of
Arizona ("Town") and Pima County, a body politic and corporate of the State of Arizona
("County"), pursuant to Arizona Revised Statutes (A.R.S.) S 11-952.
RECITALS
A. The Parties are authorized by Arizona Revised Statutes (A.R.S) S 11-952, et.seq., to
enter into agreements for joint and cooperative action.
B. A public need exists for a new traffic interchange offI-lO in the vicinity of Linda
Vista Road ( the "Project") which requires the acquisition of right of way by purchase,
donation or condemnation; and
C. A portion of the real property needed for the Project improvements lies in a County
island within the Town of Marana; and
D. The Parties have agreed that the completion of the project is essential to the public
safety and welfare and desire to cooperate in the completion of the Project; and
E. It is to the mutual benefit of the Town and County to enter into an Agreement for the
acquisition of right of way needed for the Project as designed and delineated in the
attached map which is incorporated by reference as Exhibit A;
NOW, THEREFORE, Town and County, pursuant to the above, and in consideration of
the terms and conditions herein set forth, do mutually agree as follows:
1. Purpose. The purpose of this Agreement is to allow for the acquisition of right of way
necessary for the Project that is within the County.
2. Duration. This Agreement shall become effective on the date it is adopted, approved,
and is fully executed by both the Town and the County and shall continue in force and
effect until all real property required for the Project that is within the County is acquired,
Final Orders of Condemnation have been obtained, and all appeals have been exhausted.
3. Agreement to Construct the Proiect. The Town, in conjunction with the Arizona
Department of Transportation (ADOT), shall fund and construct the Project in
accordance with the plans and bid documents prepared by the Town and ADOT's
{00004585.DOC / 2}
1
"'-'~.~""'-~"-"-"'""''^-''"",~.",,",-~.,._-"~,,~
consultants. After completion of the Project, at grade access from the access road will be
allowed by the Town to County owned parcels within the Project area in accordance with
State and local standards.
4. Manner of Financing. The Town has budgeted sufficient funds for the acquisition of
the necessary right of way as well as for the legal services required to obtain the right of
way by eminent domain or otherwise. The County shall have no financial responsibility
for the acquisitions, construction or maintenance ofthe Project.
5. Legal Services. The County agrees to cooperate with the Town to acquire the right of
way necessary for the Project that lies within unincorporated Pima County using eminent
domain if the Town cannot acquire the property by purchase or donation. The Town will
pay all costs associated with the exercise of eminent domain.
6. Right of Entry and Ownership of Property. The County, upon receipt of an Order for
Immediate Possession on property needed for the Project, hereby grants the Town,
ADOT and their employees, agents and contractors the right to enter upon the property
for activities related to the Project. Upon recording of a Final Order of Condemnation in
each action, the County shall transfer by Quit Claim Deed ownership of all property
acquired to the Town.
7. Proiect Permits.
a. Town Permits. Town shall provide any Town permits required in
connection with the Project at no cost to the County.
b. County Permits. County shall provide any County permits required in
connection with the Project at no cost to the Project.
c. Other Permits Required. In the event other governmental entity requires
the Town or ADOT to obtain any approval, permission or permits for the
Project, County shall cooperate with and assist the Town in its application
for such permits.
8. Annexation. The Town will work diligently toward annexation of the real property in
the county island at issue in this Agreement.
9. Authorization. This Agreement has been approved by the County and the Town. The
undersigned were authorized and directed to execute this Intergovernmental Agreement.
10. Cancellation. Each party acknowledges that this Agreement is subject to cancellation
pursuant to A.R.S. S38-5II, as amended.
11. Termination. This Agreement shall terminate upon the final acquisition of all property
needed for the Project by Deed or Final Order of Condemnation.
{00004585.DOC /2}
2
~-_.--..;^~",,,"".,,.~-=,,,,,,,,"~~..........~_........,,,".,,,,,
12. Compliance with Law. The Parties to this agreement will comply with all federal,
state and local laws and ordinances applicable to their performance under this
Agreement.
13. Attornevs Fees and Costs. If either party brings an action or proceeding for failure to
observe any of the terms or provisions of this Agreement, the prevailing party shall be
entitled to an award of its reasonable attorney's fees and costs.
14. Severability. If for any reason any portion of this Agreement is held invalid or
unenforceable, the remaining terms, parts or provisions are agreed to be valid and
enforceable.
15. Integration. This Agreement constitutes the entire Agreement between the parties.
All modifications to this Agreement must be in writing, signed and endorsed by the
parties.
16. Indemnification. To the fullest extent permitted by law, each party to the Agreement
shall indemnify, defend and hold the other party, its governing board or body, officers,
departments, employees and agents, harmless from and against any and all suits, actions,
legal or administrative proceedings, claims, demands, liens, losses, fines or penalties,
damages, liability, interest, attorney's, consultant's and accountant fees or costs and
expenses of whatsoever kind and nature, resulting from or arising out of any act or
omission of the indemnifying party, its agents, employees or anyone else acting under its
direction or control, whether intentional, negligent, grossly negligent, or amounting to a
breach of contract, in connection with or incident to the performance of this Agreement.
a. Notice. Each party shall notify the other in writing within 30 days of the receipt
of any claim, demand, suit or judgment against the receiving party for which the
receiving party intends to invoke the provisions of this Section. Each party shall
keep the other party informed on a current basis of its defense of any claims,
demands, suits, or judgments under this Section.
b. Negligence of Indemnified Party. The obligations under this Section shall not
extend to the negligence of the indemnified party, its agents or employees.
c. Survival of Termination. This Section shall survive the termination, cancella-
tion, expiration or revocation, whether in whole or in part, of this Agreement.
17. Construction of Agreement.
a. Entire Agreement. This instrument constitutes the entire agreement between
the parties pertaining to the subject matter hereof, and all prior or contempor-
aneous agreements and understandings, oral or written, are herby superseded
and merged herein.
b. Amendment. This Agreement shall not be modified, amended, altered or
{00004585.DOC / 2}
3
'_....._'"'-_...'-~.....~,~.-.............'".~-"''''-=,.,--
changed except by written agreement signed by the parties.
c. Construction and Interpretation, All provisions of this Agreement shall be
construed to be consistent with the intention of the parties as expressed in the
Recitals.
d. Captions and Headings. The headings used in this Agreement are for con-
venience only and are not intended to affect the meaning of any provision of
this Agreement.
18. Legal Jurisdiction. Nothing in this Agreement shall be construed as either limiting or
extending the legal jurisdiction of Town or County.
19. No Joint Venture. It is not intended by this Agreement to, and nothing contained in
this Agreement shall be construed to, create any partnership, joint venture of employment
relationship between the parties or create and employer-employee relationship between
Town and County employees or between County and any Town employees. No party
shall be liable for any debts, accounts, obligations or other liabilities whatsoever of the
other, including, without limitation, the other party's obligation to withhold Social
Security and income taxes for itself or any of its employees.
20. No Third Party Beneficiaries. Nothing in this Agreement is intended to create duties
or obligations to or rights in third parties not parties to this Agreement, or affect the legal
liability of any party to this Agreement, by imposing any standard of care with respect to
the maintenance of public facilities different from the standard of care imposed by law.
21. Compliance with Laws. The parties shall comply with all applicable federal, state
and local laws, rules, regulations, standards and executive orders, without limitation to
those designated within this Agreement.
a. Anti-Discrimination. The provisions of A.R.S. ~ 41-1463 and Executive Order
75-5, as amended by Executive Order 99-4, issued by the Governor of the State of
Arizona are incorporated by this reference as a part of this Intergovernmental Agreement
as if set forth in full herein.
b. Americans with Disabilities Act. This Agreement is subject to all applicable
provisions of the Americans with Disabilities Act (Public Law 101-336,42 U.S.C.
~ 12101-12213) and all applicable federal regulations under the Act, including 28 CFR
Parts 35 and 36.
22. Waiver. Waiver by any party of any breach of any term, covenant or condition herein
contained shall not be deemed a waiver of any other term, covenant or condition, or any
subsequent breach of the same or any other term, covenant, or condition herein contained.
23. Force Majeure. A party shall not be in default under this Agreement ifit does not
fulfill any of its obligations under this Agreement because it is prevented or delayed in
{00004585.DOC / 2}
4
doing so by reason of uncontrollable forces. The term "uncontrollable forces" shall
mean, for the purpose of this Agreement, any cause beyond the control of the party
affected, including but not limited to failure of facilities, breakage or accident to
machinery or transmission facilities, weather conditions, flood, earthquake, lightning, fire
epidemic, war, riot, civil disturbance, sabotage, strike lockout, labor dispute, boycott,
material or energy shortage, casualty loss, acts of God, or action or non-action by
governmental bodies in approving or failing to act upon applications for approvals or
permits which are not due to the negligence or willful action of the parties, order of any
government officer or court (excluding orders promulgated by the parties themselves),
and declared local, state or national emergency, which, by exercise of due diligence and
foresight, such party could not reasonably have been expected to avoid. Either party
rendered unable to fulfill any obligations by reason uncontrollable forces shall exercise
due diligence to remove such inability with all reasonable dispatch.
24. Workers' Compensation. An employee of either party shall be deemed to be an
"employee" of both public agencies while performing pursuant to this Agreement, for
purposes of A.R.S. S23-1022 and the Arizona Workers' Compensation laws. The
primary employer shall be solely liable for any worker's compensation benefits which
may accrue. Each party shall post a notice pursuant to the provisions of A.R.S. S23-906
in substantially the following form:
All employees are herby further notified that they may be required to
work under the jurisdiction or control or within the jurisdictional
boundaries of another public agency pursuant to an intergovernmental
agreement or contract, and under such circumstances they are deemed
by the laws of Arizona to be employees of both public agencies for the
purposes of workers' compensation.
25. Notification. All notices or demands upon any party to this agreement shall be in
writing, unless other forms are designated elsewhere, and shall be delivered in person or
sent by mail addressed as follows:
Pima County Administrator
13 0 West Congress
Tucson, AZ 85701
Town Manager, Town of Marana
11555 West Civic Center Drive
Marana, AZ 85653
26. Remedies. Any party may pursue any remedies provided by law for the breach of this
Agreement. No right or remedy is intended to be exclusive of any other right or remedy
and each shall be cumulative and in addition to any other right or remedy existing at law
or in equity or by virtue of this Agreement.
{00004585.DOC /2}
5
"'-";~----""""'''''''''"'''"''''''''_''''''"''''''''''''''''_~.'".''~.Je.__.,,~.,_,.,_.---.~__,_~....,.~"..."'",,..._,
0_ "~'_""~"",""""",_~_,"""",,,,,,,,,,,,,;,,,"~,,,,,,,,,;~".....~,,_,,,-,,,.~,__,.."
27. Authorization to Execute Documents. By approval of this Agreement, the Pima
County Board of Supervisors authorizes the County Administrator to execute all
documents necessary to fulfill the purposes of this Agreement, including the quit claim
deeds referred to in paragraph 6 of this Agreement.
IN WITNESS WHEREOF, County has caused this Agreement to be executed by the
Chair of its Board of Supervisors, upon resolution of the Board and attested to by the
Clerk ofthe Board, and the Town has caused this Agreement to be executed by the
Mayor upon resolution of the Mayor and Council and attested to by its Clerk.
ATTEST:
ATTEST:
Jocelyn Bronson, Town Clerk
Ed Honea, Mayor
ATTEST:
PIMA COUNTY:
Lori Godoshian
Clerk of the Board
Chairman, Board of Supervisors
APPROVED AS TO CONTENT:
FOR TOWN: FOR PIMA COUNTY
FIANANCE DEPARTMENT:
Frank Cassidy, Town Attorney Thomas E. Burke, Director
{00004585.DOC /2} 6
INTERGOVERNMENTAL AGREEMENT DETERMINATION
The foregoing Intergovernmental Agreement between Pima County and the Town has
been reviewed pursuant to A.R.S. ~ 11-952 by the undersigned, each of whom has
determined that it is in proper form and is within the powers and authority granted under
the laws of the State of Arizona to the party represented by the himlher.
Pima County:
Hal Gilbreath, Deputy County Attorney Date
Town of Marana:
Prank Cassidy, Town Attorney
Date
{00004585.DOC / 2}
7
-.........-....._.--~~
MINUTES OF SPECIAL SESSION MEETING
MARANA MUNICIPAL COMPLEX
DATE: April 24, 2007
PLACE AND DATE
Marana Municipal Complex
A. CALL TO ORDER AND ROLL CALL
By Mayor Honea at 7:00 p.m.
COUNCIL
Ed Honea
Herb Kai
Bob Allen
Jim Blake
Patti Comerford
Tim Escobedo
Carol McGorray
Mayor
Vice Mayor
Council Member
Council Member
Council Member
Council Member
Council Memb
STAFF
Mike Reuwsaat
Gilbert Davidson
Jim DeGrood
Frank Cassidy
Jocelyn Bronson
ENT OF SILENCE
seconded by Council Member Blake, the
NERAL ORDER OF BUSINESS
1. Resolution No. 2007-59: Relating to Public Works; authorizing the
application for a CWSRF loan from the Water Infrastructure Finance
Authority of Arizona (WIFA) to finance the Silverbell Road Wastewater
Collector system. (Barbara Johnson)
1
MINUTES OF SPECIAL SESSION MEETING
MARANA MUNICIPAL COMPLEX
DATE: April 24, 2007
Mr. Reuwsaat addressed Council and stated they are asking to do an application
for up to 18.2 million to have as a financing mechanism.
Upon motion by Council Member Comerford, seconded by Council Member
Escobedo, Resolution No. 2007-59 was unanimously approved.
2. Presentation: Marana Economic Blueprint.
the Business and Economic Development Advisory
<> meet twice a month instead of monthly so they can
nd make a successful plan.
ted he attended the TREO blueprint unveiling at the Fox Theater.
of their presentation was Marana would be one of the first places
e working with. He stated he thought they would be an asset in
ture.
3. Discussion and direction on Town policy relating to community facilities
districts, with special consideration of whether to allow the sale of
assessment bonds in addition to or instead of general obligation bonds in
appropriate circumstances, with specific discussion of the possible
application of the policy to the Saguaro Springs and The Villages of
Tortolita development projects. (Frank Cassidy)
2
MINUTES OF SPECIAL SESSION MEETING
MARANA MUNICIPAL COMPLEX
DATE: April 24, 2007
Council Member Escobedo declared a conflict of interest.
Mr. Cassidy addressed Council and stated this item is a follow up from the series
of study sessions in 2004 to the lead up of the Gladden Farms CFD creation. One
of the conclusions at the time was the Council would support CFD bond sales of
general obligation bonds at a rate of $2.50 per $100 of assessed valuation in
principal plus .30 for operation and management. As the assessed values come up
on these projects, larger amounts of bonds are able t e sold. Recently, there
have been a couple of projects where during discuss' ey would like to revisit
the concept of only using general obligation bon articular, they are talking
about Saguaro Springs and Villages of Torto . rojects have very large
up front regional public infrastructure associat here there is going to
be a need for a large initial bond sale. which involves a
situation where with G.O. bonds, e the truth is
whatever it takes to payoff thosgainst the
assessable properties. They discuss 0 by going
back to Council and talking about m ssessment b ds in certain
situations because with assessment bonds ount of the assessment is set up
front with respect to arcels. Mr. Cas stated there are three outside
consultants present. Mr'<...t'~~.. stated MIY alley has prepared a
presentation concerning the~aguarotSppngs CFD.
Mr. Reuwsaat stated at the time they had ssion about assessments versus
G.O. bo tatute precluded the To from doing an assessment and
havin nd it out with the tax bill. He stated the statute has now
cha able to have that assessment put on the property tax bill and
the Count ollect it.
Couriclland stated he will be talking about the purpose of
and the characteristics of the CFD bonds that being
ial assessment bonds. There is a unique opportunity
aro S ngs in terms of regional infrastructure that being Twin
aks Road. Twin Peaks Road component of this financing is why they have
discussi1l,ltdifferent options. The general obligation bonds are very common
icipal<governments. The Town does not have a primary tax rate for
and operation and does not have any general obligation bonds
outst g. The taxes are levied on all taxable property located within the
boundaries of the CFD. When you sell bonds under the traditional G.O. bonds the
bonds are repaid based on the taxable property within your town or district and
the law requires you to set that rate at an amount sufficient to pay the bonds. The
amount of secondary property taxes paid by each homeowner is based on the
annual debt service in the secondary assessed value of the property. So each year
as these different municipal jurisdictions establish their tax rates they look at
several variables. They look at the tax rate, the aggregate assessed value within
the boundaries of that municipal jurisdiction and they establish a tax rate on per
$100 of assessed valuation basis. In a lot of cases in Arizona because of the
3
MINUTES OF SPECIAL SESSION MEETING
MARANA MUNICIPAL COMPLEX
DATE: April 24, 2007
expanding tax base you have a tax base that is expanding at a higher rate of your
personal residence so they change every year based on the three variables.
Property taxes are levied and collected by the County Treasurer and payable twice
a year in October and May. They are generally impounded by the mortgage
company. G.O. bond debt service and general property taxes are in a first lien
position ahead of special assessment bonds. Land owners are not allowed to
prepay their debt. This is a key provision with general obligation bonds. Voter
approval to issue G.O. bonds is required by all land owners and residents within
the CFD. In the case of CFDs where you have limited essed value in the early
stages of the development and as there is success vitical development you
will have a large tax base. The policy of the Tow G.O. bonds for CFDs has
been $2.50 per $100 of assessed value. There' ited dollars that you can
secure on an up front basis on a present val e issuance of general
obligation bonds. The tax base is not t nds on large G.O.
bonds on an up front basis is it boils do lysis. It impacts
the balance sheets of the homebui Saguaro
Springs it creates some issues in credit and
corporate backing required to get upfro
Mr. Reuwsaat stated the v
landowners. That is also t
the amount of ultimate G.
dollars and we ask for six sO that t
infrastructure. A future CFD
an approp are of thos
e G.O. bonds is required by the
here the Council determines
can be iss The developer wants two
e futJ.lre debt capacity to do public
to issue G.O. bonds to pay for
se of the election.
t onds are similar to Tangerine. A special
ond that is ued on an up front basis, secured by the
uirements in terms of what the value of what
e debt e issued on the property. The debt service of the
to each property owner. State law requires an engineer
ide an assessment methodology that when allocated
pert wner it is a fair assessment based on the benefit derived
cture. For some reason someone was unable to make their
nt payment the debt service is not allocated to other property
property owners have the option of paying off the assessment in
hey do not do it before the bonds are issued they can pay the
assess over time. The Pima County Treasurer has expressed an interest to
collect special assessments within a CFD to the extent that the Town moves
forward. They would use the model that was recently approved by the Maricopa
County Assessor's Office on a recent CFD in Buckeye. No election is required to
levy special assessments. Landowners have the right to protest and object the
assessment.
Mr. Le Valley addressed Council and talked about the appraisal requirements of a
special assessment bond. The Town's CFD policy requires a four to one value to
lien. There will be an appraiser hired to appraise the value of the land. They will
4
MINUTES OF SPECIAL SESSION MEETING
MARANA MUNICIPAL COMPLEX
DATE: April 24, 2007
do it on a wholesale bulk value. For assessment bonds they typically have a debt
service reserve fund which is usually ten percent of the size of the transaction.
That reserve fund is placed with a trustee for the benefit of the investors.
Capitalized interest means that the bonds would fund the first year interest
payments. There would be no interest payments owed by the landowners for the
first year. In Saguaro Springs there would be 5.9 million dollars reimbursed to the
developer for projects that they have completed and the Town would receive
roughly two million dollars in the first bond sale. The developer made application
for a CFD. In return the Town had asked for rougWi' 7.8 million from the
developer to help fund the Twin Peaks expansion. ahjective was to design
bond issues to meet the Town's objectives, ding Twin Peaks Road
expansion and the developer's objectives to recuperate public
infrastructure costs. The Town had requeste e real estate market a
third party absorption and market analysi oup. That Sullivan
Group report provided a more realisti . n analysis as to
when units might be built in the cu .~. couple of
years ago, it was going to be 0 about twenty ion dollars.
With the real estate market it made s hat up into two sales. With
Twin Peaks Road expansion the Town n ghly two million from the first
sale. With any bond sal ou have to reas y expect to spend the money
within three years by fe code. The e,*s Road expansion was
probably going to last a litt that so th n was going to get some
advance money of two e and then the balance 5.8 million in
the second sale.
i for the development of the construction
n, the drainage, as well as the additional
at roughly 30 acres of right of way that they
ough tiated purchase or possibly condemnation. They
d be beginning construction for at least two years, but by
hen we are ready we get the second issuance for
e Valle ated he will compare two scenarios, one with G.O. bonds and the
ith a sment bond and then a G.O. bond. If you have two G.O. bond
ng in 2007 and the other in 2009, the first year bond size to met both
the To and developer's objectives would be about 11.9 million. Net funding
$10 million, 8 million to the developer and 2 million to the Town. The second
sale in 2009 would be an $8.4 million transaction, net funding $8 million with
$5.8 million to the Town and $2.2 million to the developer. There would be
capitalized interest needed in the first sale until homes started to hit the tax rolls.
The interest would then be funded by the sale itself. A reserve fund is not
contemplated in this transaction because with general obligation bonds the Town
asked for money upfront for the developer to contribute. Typically with these
kinds of deals you extract a certain amount of money up front that keeps their
hearts and minds in the game so they won't be likely to leave the project until it is
5
. -~""--"'~'-~"""~'=""'-'-""'''--'-~-~'''''''~'''"''''''''^'"'''''~'".
MINUTES OF SPECIAL SESSION MEETING
MARANA MUNICIPAL COMPLEX
DATE: April 24, 2007
completed. The amount of money needed upfront for two general obligation sales
would be roughly 3.6 million from the developer to do two bond sales totaling
roughly $18 million dollars. Also, there would be a shortage amount. The $2.50
tax rate would not generate enough monies initially to cover the debt service. The
total amount estimated would be about $5.2 million in shortfalls. That is a sum of
about ten years. The number of units needed to cover the debt service would be
roughly the total project, 2400 units. The second scenario contemplates two sales
again. The first one being special assessments and the second being the G.O.
bonds. He gave an example of funding $8 million to th eveloper and $2 million
to the Town. There would be capitalized interest. Th ded interest out of the
bonds to make the first year's payment. They wo ct a reserve fund funded
out of the bonds which is more typically of as onds. Because these are
not general obligation bonds there would b eement, no standby
contribution agreement. The developer w rtfalls. It is a fixed
amount per unit eventually. Then ther tion bond 2009
similar to the last scenario. If we a ount from
the developer upfront it would b t issue two
general obligation bond sales they've One and they' not issuing it
until 2009 and by that time assessed va that district have built up. The
amount we would extra front would be ly $1.5 million. The shortage
amount is about $788,000 ut three or fd '. The fiscal year in which
the $2.50 tax rate supports rvice is 2 d 2012, not the ten plus
years. The number of units 'It for e $2.50 tax rate can cover it
based on abso tions from S out 900 units versus the 2400
units in t
st the first two years and have 900 units
essment bonds is pretty nil and you would
at you have. From an assessment standpoint it
onset e the property owners are the votes to make it
wn the line the more property owners they all have an
ssment viable.
ted you could do smaller special assessments based on overlays
On the bo ary of the district. You can do it by phase, but then you have the
1 of Wnding both the Town and the developer's objectives upfront. In
s if you live in that CFD you're paying $17.90 combined tax rate.
Tortoli anch as contemplated would be $19.52. Quail Creek in Sahuarita
which s a CFD project in Arizona because of their overlapping taxes and they go
to a $3.00 tax rate versus $2.50 their overlapping rate is $20.00. Vanderbilt Farms
as contemplated which they are requesting special assessment bonds and that tax
rate is about $17.00. In Saguaro Springs, scenario one, what was done in Gladden
Farms the total tax rate burden would be about $17.90. The scenario two is if you
do general obligation bonds and have the assessment bond upfront it would be
roughly $19.52. Every unit has a fixed assessment. As the home value increases
and the payment stays level the net effective tax equivalent will go down.
6
MINUTES OF SPECIAL SESSION MEETING
MARANA MUNICIPAL COMPLEX
DATE: April 24, 2007
Mr. Reuwsaat stated that when we met with Saguaro Springs it was always our
intention for the rest of the community to build Twin Peaks Road from the
Safeway to past the project at a level that is much more than what we would
require of any other developer. We couldn't generate as much money through the
impact fee. We wouldn't generate enough funds up front to do the road project
through an impact fee because that is by household over time. The impact fee
didn't provide the funding that we could use to move forward with this project on
the front end. It is a regional road and the financing we're asking for from the
developer is to build that regional road on the front . We're faced with the
same situation with the Villages of Tortolita. One 0 requirements before we
issue a certificate of occupancy for any of the bui there is that they build the
Tortolita interchange and that could be $35-4 up front costs. He stated
there are other alternatives, but they do not g f money that we need
or in the time to build this kind of infrastl1J,~e e.
Mayor Honea stated he understa
assessments up front to do infrast
at weflre trying to
ut we'_,going from $2.
Mr. Le Valley stated that $1.63 '11 decrease as the home value
increases unlike the G.O:bQnd tax which wi>~ys stay $2.50. The assessment
bond will be a fixed am ery year on ~~.tax bill, but as your value
increases the net effective t ecrease overtlhe.
of property to debt service and
mtain a four to one or will that go
ait to see what the appraisal says. It would
assessment bond basis and it would still
cond recommendation is for the total effective CFD
not create an excessively disproportionate burden for
the CFD with assessment bond debt. He stated they wouldn't
to pay the second bond back at a $2.50 rate. It could be a lesser
er, the problem is though for the second bond issuance the
uld have to come out of pocket a much larger amount of money so
over the fact that something less than $2.50 is going to generate less
money 0 pay the second bond issuance and it would be several more years before
the bond rate would start paying back. He stated one of the things they could do is
with a mixed assessment, G.O. bond approach is each year they could take a look
at what the effective rate is and determine what the amount of the G.O.
assessment would be to make it end up being the $17.89 that Gladden Farms pays.
They would have to come up with a median value to try to figure out what the net
assessment is,
7
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-., --'""~.,.._~;"",,,,.~,,..-......-_,,,,,,,.P".'~'"',,,,,,-~,-,",,,,",,,"".
MINUTES OF SPECIAL SESSION MEETING
MARANA MUNICIPAL COMPLEX
DATE: April 24, 2007
Mr. Reuwsaat stated what we need to do is have the CFD work because if the
CFD doesn't work, if it's too burdensome and the developer takes it on then we
have to go back to the impact fee process and the net revenues to the Town to do
this project are less.
Mayor Honea stated at this current rate we would be almost fifty percent higher
than the fire district tax rate.
Mr. Le Valley stated it is not uncommon in a municipal .
tax rates that are different in certain parts of town.
extent assessment bonds are issued it is goin
infrastructure. If you have a scenario where
can be used to be more beneficial for those
often times those people are willing to
. sdiction for there to be
articular case to the
utilized for enhanced
ent bond infrastructure
at development then
Mr. Reuwsaat stated they talked
assessment bonds. The reason
neighborhood is going to start out wit
throughout. In this case what they propose
be the assessment and t they pick up the
begin construction.
Council Member Comerford
Twin Peaks Road.
Count s obligation was concerning
ssions with the County. Right now they have
om them for right of way or for the road
eveloper created project and road and let
uld be helpful if they were to say let's make sure that the
edian house cost house in Saguaro Springs does not
Blake asked how large the road is going to be.
t stated it is four lanes from the Safeway across the mountain past
the ma ntrance to Saguaro Springs and then two lanes by the cement crossing
and WIT re the county is. It will tie into Airline Road.
Mr. Davidson stated it will contain the sidewalks, as well as critter crossings and
the drainage control system.
Mr. Cassidy asked what happens if the developer just proceeds on their zoning
approval and in that scenario they build two lanes fronting their property for Twin
Peaks which is a significantly smaller project.
8
MINUTES OF SPECIAL SESSION MEETING
MARANA MUNICIPAL COMPLEX
DATE: April 24, 2007
Mr. Reuwsaat stated they are trying to put a cap of$7.8 million.
Upon motion by Council Member Comerford, seconded by Council Member
McGorray, staff recommendation of Council give consideration to allowing CFDs
to consider the use of assessment bonds in appropriate circumstances provided
that one semi-annual assessment is included in property tax statements from the
County Treasurer and that the total CFD assessment rate does not create an
excessively disproportionate burden for homeowners in the CFD with assessment
bond debt was approved 5-0.
F. ADJOURNMENT
Upon motion by Council Member Blake, seconded by Co~j:lti
voted unanimously to adjourn.
CERTIFICATION
I hereby certify that the foregoing are the true
meeting held on April 24, 2007. I further certify that a
Jocelyn C. Bronson, Town Clerk
9
ber McGorray, Council
MINUTES OF REGULAR COUNCIL MEETING
MARANA MUNICIPAL COMPLEX
DATE: May 1,2007
PLACE AND DATE
Marana Municipal Complex
A. CALL TO ORDER AND ROLL CALL
By Mayor Honea at 7:00 p.m.
COUNCIL
Ed Honea
Herb Kai
Bob Allen
Jim Blake
Patti Comerford
Tim Escobedo
Carol McGorray
Mayor
Vice Mayor
Council Member
Council Member
Council Member
Council Member
Council Memb
STAFF
Mike Reuwsaat
Gilbert Davidson
Jim DeGrood
Frank Cassidy
Jocelyn Bronson
B. PLEDGE OF ALLEGIANCE AND INV~
ENT OF SILENCE
Led by Mayor H
c. APPROVAL OF AGlllIDA
ber McGorray, seconded by Council Member Escobedo,
v~p from Consent Agenda was unanimously approved.
Ed Stolma residenL.~d CEO of Marana Chamber of Commerce, addressed Council
regarding the Co~nlUnity Business Builder A ward on Wednesday, May 9th to be held
in Chambers. Th d will be given to two businesses within the community, one business
with 25 or more e oyees, and one with less than 25 employees. The reception starts at 5:30
to 6:30 with the program starting at 6:30.
David Morales addressed Council and stated he was glad to be back after a health problem.
He asked Council to do good for the Town and that the Town expects the best.
E. PRESENTATIONS
ANNOUNCEMENTSffiPDATES
PROCLAMATIONS
1
_""~',...c.,._,...._......",,,,..,,.,_",~,,^",.,,,.~,,,,,,.>,,~_,~~_,,,..,,,,~'~'''',"'
MINUTES OF REGULAR COUNCIL MEETING
MARANA MUNICIPAL COMPLEX
DATE: May 1, 2007
Mayor Honea revealed the first issue of the Marana News Weekly which will be devoted to
Marana, Avra Valley, and Picture Rocks area.
Ms. Bronson addressed Council and introduced a new member of the Clerk's Office, Viviana
Ruiz. She will be responsible for the administrative functions in the Clerk's Office. Her most
recent work experience was with Lewis Management. She is currently working on a degree
in Business Management.
nded family night. He stated there were all kinds of activities. He
young families with small children. He stated he went to the Rodeo
on Saturday and ay. He stated the officers raised a lot of money to help young children
that are less fortu ate and they worked very hard. The bicycle race had 1350 entries. He
stated at the PAG RTA meeting last week, Mary Peters, the U.S. Secretary of Transportation
was here. He stated several of them will be going to the Southern Arizona Town Hall starting
Sunday. It is for elected officials, community leads, and educators from Southern Arizona
that are getting together for three days to try to figure some common bonds and ways to work
together for the benefit of people in the area.
Council Member Escobedo stated he was invited to sit 0
Commission for rules and statutes committee which wi
months.
of Arizona Real Estate
ow and run for four
F. MAYOR AND COUNCIL REPORTS: SUMMARY OF CU
Alumni
fe. He also
approximate $20,000 for
e the family night at Ora Mae
'mage of their shield from what
. This was presented to
new badge shortly which
ing for the community.
ayand Sunday and family night.
. n oduced to the Board of the Mariachi
tolmaker t ucson Pima Arts celebration and awards.
e awarded for arts entities, but also for those
the barrel racing.
ding the monthly Central Arizona Water Conservation
on ursday. He attended a republican fund raiser for John
that put together $250,000 for McCain's presidency.
G. MANAGER'S REPORT: SUMMARY OF CURRENT EVENTS
2
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H. STAFF REPORTS
MINUTES OF REGULAR COUNCIL MEETING
MARANA MUNICIPAL COMPLEX
DATE: May 1, 2007
Mr. DeGrood addressed Council and announced that a member of the Business and Economic
Development Advisory Commission, Bill Pharis, from National Bank of Tucson, was transferred
to the Safford office and has submitted his resignation. He stated he will be a great loss.
GENERAL ORDER OF BUSINESS
I. CONSENT AGENDA
Council Member Escobedo declared a conflict of interest
ber six.
Upon motion by Vice Mayor Kai, seconded by C
Agenda was unanimously approved.
ember McGorray, the Consent
J. COUNCIL ACTION
1.
tion; approving and
between the Town, Sun Tran
sepf establishing a Park
a Pavilions Center to the
)
Mr. DeGroo
Developm
portion .~..
Manager of
stated Wexler from Continental Ranch
allow us to host the park and ride lot in a
introduced Katrina Heineking, General
. e it a service that was planned under the RTA for
the 1-10 construction project ADOT has advanced the
could start it a little earlier. She stated they will be
om ana to the downtown Tucson area about 7:20, 7:50 and
ack in the afternoon. There is not a set route. They intend to be
cited about starting the service on May 21 st. They would like to
as much as possible. They plan to wrap a bus in promotion of the
Vice Mayor Kai asked if these buses will be compressed natural gas buses or would
they be diesel.
Ms. Heineking stated they could be either. They do not specify particular buses. They
have a fleet of200 buses. About 95 percent of the buses are either compressed natural
gas or bio-diesel 20 percent.
Vice Mayor Kai asked what the fare would be.
3
MINUTES OF REGULAR COUNCIL MEETING
MARANA MUNICIPAL COMPLEX
DATE: May 1, 2007
Ms. Heineking stated it would be one dollar per one way trip the same as the current
fare structure. There is a reduced fare of .40 for low income, elderly or disabled.
Mr. DeGrood stated Sun Tran is a great partner for the Town and they have been
working hard to bring this to the Town. He stated that once they are on the express
bus that enables them to connect with other buses throughout the Sun Tran system.
Upon motion by Council Member Blake, seconded by Council Member Allen,
Resolution No.2007-66 was unanimously approved.
2. !: PUBLIC HEARING. Ordinance No. 2007.q;.~elating to Municipal
Court; amending Title 5 of the Marana Tow '0 adding section 5-8,
establishing a home detention program for I offe and designating
an effective date. (Jane Fairall)
b. Resolution No. 2007-67: Rela .
revisions to Town Code TitleS
2007.11 as a public record filed w
emergency (Jane Fairall)
to Muntcipal Court; d the
ted b arana Ordina o.
riClerk; and d claring an
Ms. Fairall addressed Cou
at the April 10th Study Ses
use in the Marana Municipal
original brought to Council
e detention program for
fenders.
ouncil Me:rnDer Escobe , seconded by Vice Mayor Kai,
1 was unanillJously approved.
Membe~!!fMcGorray, seconded by Council Member
~w~shnanimously approved.
Relating to Municipal Court; amending Title 5
e by adding section 5-6-2, establishing
ng fees; and designating an effective date.
0.2007-68: Relating to Municipal Court; declaring the
to Town Code Title 5 adopted by Marana Ordinance No.
200 as a public record filed with the Town Clerk; and declaring an
emergency. (Jane Fairall)
Ms. Fairall stated this ordinance was also brought to Council at the April lOth
Study Session and would establish probation fees for people placed on monitored
probation through our court.
4
MINUTES OF REGULAR COUNCIL MEETING
MARANA MUNICIPAL COMPLEX
DATE: May 1,2007
Upon motion by Council Member Escobedo, seconded by Council Member
McGorray, Ordinance No. 2007.12 and Resolution No. 2007-68 and declaring an
emergency was unanimously approved.
4. Ordinance No. 2007.13: Relating to Animal Control; amending Title 6
of the Marana Town Code to establish new dog licensing fees, delinquency
penalties, license transfer fees and duplicate tag fees; amending section 6-5-2;
and designating an effective date. (Jane Fairall)
b. Resolution No. 2007-69: Relating to Animal C
revisions to Town Code Title 6 adopted by
2007.13 as a public record filed with the
emergency. (Jane Fairall)
Ms. Fairall stated this relates to amendments to the animal 1 code and was
brought to Council at the April Study S.ession. There ouple of
additional amendments made i s 652,):J;l1ainly changin me of the
language to make it read better and tak u me of the redun t information
that was not presented on April 10th and ade in the interim time period.
Upon motion by Counci
Blake, Ordinance No. 20
emergency was unanimously
onded by Council Member
7 -69, and declaring an
5.
e applicant is requesting preliminary plat
ched home subdivision on 9.8 acres of land.
cate e east side of Camino de Manana south of Oasis
the Casada Specific Plan. It has a land use designation of
is particular project has a mix of lot sizes with the
,000 ft. lot and an average equaling 5,420 which is within the
ble under the MDR of 3,500. The project has its main point of
o de Manana. An internal on-site circulation exists with an
nto Oasis Road.
Upon moti y Council Member Allen, seconded by Council Member Escobedo,
Resolution/No. 2007-70 was unanimously approved.
6. Resolution No. 2007-71: Relating to Development; approving
and authorizing the execution of the First Amendment to the Development
Agreement Regarding Development Impact Fee Credits for Gladden Farms,
and declaring an emergency. (Jim DeGrood)
Mr. DeGrood addressed Council and stated he is bringing the first amendment to a
development agreement which was originally approved in 2005. In the 2005
5
----~"_._-~.......--"""'"""'.....~,-,..."...,,-'........,"'-_.,,",'".....,..."'-~~~-<-,',"-
MINUTES OF REGULAR COUNCIL MEETING
MARANA MUNICIPAL COMPLEX
DATE: May 1, 2007
agreement, they identified what credits would come to the Gladden Farms project for
the infrastructure that was developed, both the park and road infrastructure and
adjusted the impact fees accordingly. The amendment will address two things. The
first affects blocks one, seven, eight, nine, thirteen, fifteen, sixteen, nineteen, twenty-
two, twenty-four and twenty-five. These blocks are the blocks that front along
Tangerine Farms Road and are within the improvement district for Tangerine Farms.
The improvement district does construct road improvements which are creditable
against the transportation component of the impact fee. The properties all bare a
$6,200 per lot assessment in the improvement district of w . h $4,544 of it is related
to roadway. All the utilities that are going in that are be' for are not creditable
against the transportation impact fee, but the roadwa nts are. The second item
is when they did the impact fee credits for the did it based on some
projected costs. During the course of constructi~~ the ction costs came in
higher. They are doing an adjustment to th unt per 10 ed upon the actual
dollars expended and bourn by the comm Ities district.
ayor Kai,
Upon motion by Council Member
Resolution No. 2007-71 was unanimously a
7.
Council; approving May 16,
2907. (Jocelyn Bronson)
Ms. Bronson addressed Council and stat ext larly scheduled meeting for
May falls on Election Day, May 15th and e permits us to change the date of
the meeting i . a legal holiday or Electi Day. Staff is recommending May
16th for th heduled Council meeting.
early voting setup at Town Hall available
Member Escobedo, seconded by Council Member
17 - 72 was unanimously approved.
S AND COMMITTEES
1. o. 2007-73: Relating to Boards, Commissions and Committees;
and authorizing the re-appointments of Scott Mundell, Marsha
Johns and Gary Davidson to the Dove Mountain Resort Community
Facilities District for four-year terms to expire in June 2011. (Jocelyn
Bronson)
Ms. Bronson addressed Council and stated the district manager for the Red Hawk
Canyon Community Facilities District is petitioning Council to approve the
reappointments of Scott Mundell, Marsha Johnson and Gary Davidson. These are for
four year terms that will expire in June, 2011.
6
~-"'~--~-,-=---.;;.......,.,..."""_..~~..,,,.".-
MINUTES OF REGULAR COUNCIL MEETING
MARANA MUNICIPAL COMPLEX
DATE: May 1, 2007
Upon motion by Vice Mayor Kai, seconded by Council Member Escobedo,
Resolution No. 2007-73 was unanimously approved.
L. EXECUTIVE SESSIONS.
1. State Lee:islative Issues: Discussion/DirectionlAction regarding all
pending bills before the Legislature. (Mike Reuwsaat)
the 100th day when it
be a budget on the
e year, except conference
activity left in both the
'lls left. The biggest
udget. The Senate
e House hasn't
old a budget
t year the ses went on to
e\ if the budget touches on is
most significant issues of this
rent initiatives for accelerated
under all those different
n through. Most of the
de it out of the respective
ill be a modest nod towards
either a all use of the rainy day fund, small
y, but there will be no statewide reforms this
e enate last week, the bill to create a blue
failed. There has been a state plumbing
idea. It has been repealed. There are some
open ting laws that apply primarily to boards and
own sets up. The municipal development fee procedures
ed by the governor. This was the bill that was the
orked by the Southern Arizona Homebuilders Association and
ies and Towns and widely supported by municipal governments.
etoed the A-frame sign bill. A limitation on municipal tax
designed primarily because of events that took place in the
o area, but because of the language there was a risk that Marana
eluded. The president of the Senate has held the bill insisting that the
sponso of it must remove Marana, southern Arizona or the bill will not move
forward and the bill has sat for over a month. Another bill they are watching
carefully is the construction sales tax limitation bill. It has been heavily amended
and in its current form is consistent with the Town of Marana's practices. It is
proposed to go to a conference committee. It is less of a concern than it was
earlier in the session. The State land reform proposal would have been a referral
to the ballot next year. It is stalled in the Senate. The Town was successful in
getting all the lands they wanted ineluded in the list, but the bill has run into
trouble with the Arizona Education Association, Nature Conservancy, some other
7
~~"'-'".""~"""""""'-""""="'-~'-""=-""''''''''~-''''-;''''''''''''''''~'''''''''''''''>.,.~-"--..~~.,.~....-~"",,-,,,._<
MINUTES OF REGULAR COUNCIL MEETING
MARANA MUNICIPAL COMPLEX
DATE: May 1,2007
groups, some concerns of the governor's office, most of the concerns center on
whether the bill does enough. It doesn't create any mechanism to create future
conservation lands and it doesn't deal at all with rural state lands. The way the bill
is structured is there is the referral to the ballot, but the legal descriptions for all
the lands are included in a separate piece of legislation so in this unique situation
the governor does have to sign it. Most referrals the governor wouldn't be
involved, but with this one she would be involved. There are provisions for
acquisition of right of way that we would be interested in and the ability to
preserve some of those lands.
of ur current Planning and
ncil after the May 15th
Council Member McGorray referred to Senat
residency restrictions. She stated that is for sch
if they have talked about making that restricti
Mr. Racy stated he hasn't been activ
find out.
FUTURE AGENDA ITEMS
Council Member Escobedo stated he
Zoning Commission that those offic
election.
Upon motion by C
voted unanimously to a
by Council Member Escobedo, Council
CERTIFI
ing ar true and correct minutes of the Marana Town Council
I furth~ certify that a quorum was present.
lerk
8
~_._---...-_-..__..,,~~-_..._"~,...
MINUTES OF STUDY SESSION MEETING
MARANA MUNICIPAL COMPLEX - Second Floor Conference Center
DATE: May 3, 2007
PLACE AND DATE
Marana Municipal Complex - Second Floor Conference Center
A. CALL TO ORDER AND ROLL CALL
By Mayor Honea at 6:00 p.m.
COUNCIL
Ed Honea
Herb Kai
Bob Allen
Jim Blake
Patti Comerford
Tim Escobedo
Carol McGorray
Mayor
Vice Mayor
Council Member
Council Member
Council Member
Council Member
Council Memb
STAFF
Mike Reuwsaat
Gilbert Davidson
Jim DeGrood
Frank Cassidy
Jocelyn Bronson
Erik Montague
Present
Present
Present
nt
sent
Present
u . on regarding the FY 2008 Budget: revenue
efly synopsized previous budget processes and discussed how
was a little different - hopefully easier to understand. He then
ontague.
Mr. Montague addressed Council and showed a power point presentation which
he elaborated on. The presentation is attached and made a part of these minutes.
After general discussion of the items, Council thanked Mr. Montague for his hard
work and stated that his presentation was very easy to understand.
Mr. Reuwsaat indicated that there would not be a study session on May 10 as
originally indicated. The expenditure side ofthe budget needed some additional
work, and he wanted to bring the most current and accurate draft of the expenditure
1
MINUTES OF STUDY SESSION MEETING
MARANA MUNICIPAL COMPLEX - Second Floor Conference Center
DATE: May 3, 2007
side ofthe budget to Council for discussion. The next study session is planned for
May 17.
C. ADJOURNMENT
Upon motion by Council Member Allen, seconded by Council Member McGorray,
Council voted unanimously to adjourn.
CERTIFICATION
Jocelyn C. Bronson, Town Clerk
I hereby certify that the foregoing are the true and correct minut
meeting held on May 3, 2007. I further certify that a quorum p
2
Revenue Estimates
Council Study Session
Thursday, May 3, 2007
Discussion items
. Focus on major funds and revenue
sou rces
. Status of 2007 revenues
. 2008 revenue estimates
2007 Revenue Status
1
2007 Revenue Status
. Sales tax revenue
. State shared revenue
. Permits and fees revenue
. Development fees
. Charges for services (Enterprise)
General Fund
. Main operating
fund
. Sales taxes 90%
. Permits and fees
69%
. Projected ending
fund balance
$14.5M
Budget Year-to- Budget
2007 Date %
$31.2M $27.4 88%
South Benefit Impact Fees
. Funding for
southern
transportation
projects
. Estimated shortfall
$1.2M
. Projected ending
fund balance $8.6M
Budget Year-to- Budget
2007 Date %
$1.7M $O.4M 23%
2
North Benefit Impact Fees
. Resources for
northern
transportation
projects
. Estimated shortfall
$200K
. Projected ending
fund balance $O.7M
Budget Year-to- Budget
2007 Date %
$0.7M $O.4M 55%
%, Park I~p_~:~~~~s
. Resources for park
projects
. Estimated shortfall
$1.0M
. Projected ending
fund balance $2.6M
Budget Year-to- Budget
2007 Date %
$2.2M $970K 43%
Transportation Fund
. Provides funding for
major crp projects
. Construction sales
tax
. Projected ending
fund balance
$14.1M
Budget Year-to- Budget
2007 Date %
$9.3M $7.5M 81%
3
'HighWay Us.~~~evenue Fund
. Resources for road Budget Year-to- Budget
maintenance 2007 Date %
Sh d $2.0M $1.5M 75%
. are revenues
. Projected ending
fund balance $O.2M
'.( 1/2 Cen_~~~I~~ Tax Fund
. Funding for CIP Budget Year-to- Budget
projects 2007 Date %
P. d d' $544K $560K 102%
. rOJecte en mg
fund balance $5.4M
Water Enterprise Fund
. Operating and CIP
projects
. Charges for services
and impact fees
. Projected ending
fund balance $O.3M
Budget Year-to- Budget
2007 Date %
$5.2M $3.1 M 59%
4
"'-Airport Ente~l?~ise Fund
. Majority of funding
for CIP projects
. Current revenues to
date at 77%
. Projected ending
fund balance
$(O.6)M
Budget Year-to- Budget
2007 Date %
$7.3M $5.6M 77%
2008 Revenue Estimates
,!.: FY2008 Gen~~r~l~und Revenue
Budget Estimate
2007 2008
$17,217,929 $19,098,627
5,210,505 7.395,691
6,231,454 4,747.994
544.350 634,275
1,954,546 2,319,250
Total $31.158,784 $34,195,837
Sales tax
Shared rev
Permits & fees
Fines & fees
All others
$ Change
$1.880,698
2,185,186
(1,483,460)
89,925
364,704
$3.037,053
% Change
11%
42%
-24%
17%
19%
10%
5
FY2008 South Benefit Impact
Fees Fund Revenue
Budget Estimate
2007 2008 $ Change % Change
Interest $138,726 $225,454 $86,698 63%
Impact fees 1,589,690 717,120 (872,570) -55%
Total $1,728,406 $942,534 $(758,872) -45%
FY2008 North Benefit Impact
Fees Fund Revenue
Budget Estimate
2007 2008 $ Change % Change
Interest $57,146 $42,981 (14,165) -25%
Impact fees 654,901 664,457 7,556 1%
Total $712,047 $705,438 $(6,609) -1%
FY2008 Park Impact Fees
Fund Revenue
Budget Estimate
2007 2008 $ Change % Change
Interest $179,138 $158,890 $(20,248) -11%
Impact fees 2,052,072 920,767 (1,132,167) -55%
Total $2,232,072 $1,079,657 $(1,152,415) -52%
6
FY2008 Transportation Fund
Revenue
Budget Estimate
2007 2008 $ Change % Change
Interest $337,500 $286,655 $(50,845) -15%
Bond proceeds 0 10,500,000 10,500,000 >100%
Sales tax 9,000,000 9.427,553 427,553 5%
Total $9,337,500 $20,214,208 $10,876,708 116%
FY2008 Highway User
. Revenue Fund
-:'" ;: M.......................__.
HURF
Budget
2007
$2,060,300
Estimate
2008
2,244,207
$ Change % Change
$183,907 9%
FY2008 112 Cent Sales Tax
. Fund
Budget Estimate
2007 2008 $ Change % Change
Interest $150,000 $86.420 $(63,560) -42%
Sales tax 394.008 59,101 (334,907) -85%
Total $544.008 $145,521 $(398.487) -73%
7
FY2008 Water Enterprise Fund
Budget Estimate
2007 2008 $ Change % Change
Interest $0 $23,000 $23,000 >100%
Charges 3,354,500 2,847,648 (506,852) -15%
Impact fees 1,845,210 1.441,253 (403,957) -22%
Total $5,199,710 $4,311,901 $(887,809) -17%
FY2008 Airport Enterprise
Fund
Budget Estimate
2007 2008 $ Change % Change
Grants $7,161,300 $7,671,085 $509,785 7%
Charges 138,800 143,658 4,858 4%
Transfers in 768.454 767,109 (1,345) 0%
Total $8,068,554 $8,581,852 $513,298 6%
In Summary
. Overall revenue growth
. Sales taxes, shared revenues
. 2008 estimates reflect:
. Regional economic trends
. Development impact
8
MEETING DATE: May 16, 2007
AGENDA ITEM:
TOWN COUNCIL
MEETING
INFORMATION
TOWN OF MARANA
J.l
TO: MAYOR AND COUNCIL
FROM: Frank Cassidy, Town Attorney
SUBJECT: Resolution No. 2007-81: Relating to Utilities; approving and au-
thorizing the Utilities Director to execute a contract with the
United States Department of Energy, Western Area Power Ad-
ministration, for Parker-Davis Project Electric Service.
DISCUSSION
In December 2006, the United States Department of Energy, Western Area Power Administra-
tion, approved an allocation of 1000 kW of electrical power from the Parker-Davis Project Elec-
tric Service to the Town of Marana subject to the execution of a contract. The contract presented
for approval and authorization at tonight's meeting is the standard Western Area Power Admini-
stration contract which has been prepared for entities which have been awarded Parker-Davis
Project Electric Service allocations.
RECOMMENDATION
Staff recommends adoption of Resolution No. 2007-81, approving and authorizing the Utilities
Director to execute the Parker-Davis contract.
ATTACHMENT
Draft contract dated April 13, 2007.
SUGGESTED MOTION
I move to adopt Resolution No. 2007-81.
{00004677.DOC I}
FJClcds 5/1/07
MARANA RESOLUTION NO. 2007-81
RELATING TO UTILITIES; APPROVING AND AUTHORIZING THE UTILITIES DIRECTOR
TO EXECUTE A CONTRACT WITH THE UNITED STATES DEPARTMENT OF ENERGY,
WESTERN AREA POWER ADMINISTRATION, FOR P ARKER-DA VIS PROJECT ELECTRIC
SERVICE.
WHEREAS the United States Department of Energy, Western Area Power Administration,
allocated 1000 kW of electrical power from the Parker-Davis Project Electric Service to the Town of
Marana; and
WHEREAS the Mayor and Council of the Town of Marana feel it is in the best interests of
the public to execute the standard contract necessary to take advantage of the allocation.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE
TOWN OF MARANA, that the contract between the Town of Marana and the United States De-
partment of Energy, Western Area Power Administration, attached to and incorporated by this refer-
ence in this resolution as Exhibit A is hereby approved, and the Utilities Director is hereby author-
ized to execute it for and on behalf of the Town of Marana.
IT IS FURTHER RESOLVED that the Town's Manager and staff are hereby directed and au-
thorized to undertake all other and further tasks required or beneficial to carry out the terms, obliga-
tions, and objectives ofthis contract.
PASSED and ADOPTED by the Mayor and Council of the Town of Maran a, Arizona, this
16th day of May, 2007.
Ed Honea, Mayor
ATTEST:
Jocelyn C. Bronson, Town Clerk
APPROVED AS TO FORM:
Frank Cassidy, Town Attorney
{00004683.DOC I}
FJC:cds 511/07
'_'_""""..~.",""~<..........."-~~~,~-_.~=.,.,,.,.,"",,,,,,,,,..,.,...,.
United States
Department of Energy
WESTERN AREA
POWER ADMINIST
Desert Southwest Regi
AND
)OWN OF MARANA, AZ WATER DEPARTMENT
FOR
ELECTRIC SERVICE
-"'-_."_._.....""_.,.,,,.,...,."'~,."'-~"""'~~.....~....,'~_.,.,.-'-..,~.,.,"'."""",,^'"',,.,.,'
CONTRACT NO. 07-DSR-11766
BETWEEN
UNITED STATES
DEPARTMENT OF ENERGY
WESTERN AREA POWER ADMINISTRATION
Desert Southwest Region
Parker-Davis Project
AND
TOWN OF MARANA, AZ WATER DEPARTME
FOR
ELECTRIC SERVI
Section
............................................
...........................................
......................................................................
..................................................................
.. .........................................................
ble Fi lectric Service ..................................
nt, and Schedule of Rates................................
~ances Reconciliation Surcharge...................
tor, ...........................................................................
apacity and Deliveries of Associated Energy.....
e of Electric Energy ............... ........ ... ....... ........................
Inte ted Resource Plans and Small Customer Plans .............
eral Power Contract Provisions Made Part ofContract.....
xhibits Made Part of Contract................................................
Metering and Scheduling Instructions......................................
Authority to Execute.......... .................. ................. ...................
se ........................................................................................................
Exhibit A Monthly Delivery Obligations
Exhibit B - Delivery Conditions
Rate Schedule
General Power Contract Provisions
Pal!e No.
1
2
3
3
3
4
7
8
8
9
9
11
11
12
12
13
14
CONTRACT NO. 07-DSR-11766
BETWEEN
1.
UNITED STATES
DEPARTMENT OF ENERGY
WESTERN AREA POWER ADMINISTRATION
Desert Southwest Region
Parker-Davis Project
AND
TOWN OF MARANA, AZ WATER DEP ARTME
FOR
PREAMBLE: This Contract is made this
, 2007, pursuant
to the following Acts of Congress: the Recl
(32 Stat. 388); the Act of March 4, 19
referred to as the Contributed
erior Department Appropriation Act for
1928, Act of January 12
tat. 934); the Reclamation Project Act of 1939, dated
August 4, 1939 (53 ,,'
Act, dated May 28, 1954 (68 Stat. 143); the Department
n ct, Act of August 4, 1977 (91 Stat. 565,42 V.S.C. 7101); the
e Act, commonly referred to as the Economy Act, dated September 13,
aw 97-258,31 U.S.c. 1535); the Energy Policy Act of 1992, dated
o r 24, 1992 (Public Law 102-486kand acts amendatory or supplementary to the
fo;egoing Acts, between the UNITED STATES OF AMERICA, Department of Energy,
acting by and through the Western Area Power Administration, hereinafter called
Western, represented by the officer executing this Contract;, and Town of Marana, AZ
1
---~""~-_'''''''~-'-''''_''''''''''''__'''-~..........,~..",,,.,_.w_,
Water Department, hereinafter called Contractor; each sometimes individually called
Party and both sometimes collectively called Parties.
2. EXPLANATORY RECITALS:
2.1 The Administrator published Conformed General Consolidated Power
Marketing Criteria or Regulations for Boulder City Area Projects (49 FR 50
,
December 28, 1984; corrections, 50 FR 7823, February 26, 1985), her' r C~d'
\
"Conformed Criteria," which serve as the regulations for the sale 0 e ice from
the Parker-Davis Project (PDP); and
2.2 Western adopted the Energy Planning
requirement that all PDP firm electric service prepare Integrated Resource
Plans (IRP) and (2) a Power Marketin ) under which Western may extend
a portion of Federal resource existing contractors.
2.3
er Notice (67 FR 51580), dated August 8, 2002
lication of the PMI to the PDP, and the public was given
opportunities t
uating all comments received, Western announced, in the
tice (68 FR 23709), dated May 5, 2003 (Final FRN), its decision to
cts to PDP firm electric service contractors for twenty (20) years, beginning
1,2008, and its decision to create a new PDP resource pool, and its decision to
require payment in advance for PDP firm electric service, as provided in Section 7 of this
Contract.
2.5 Western published a notice of proposed procedures for PDP resource pool
allocations and call for applications published in the Federal Register Notice
2
'_"'"--"'_'""'__"'~'''-~---~_'~~''_-~_.~,......._~-_...~,..',,-,<,","~~~
(69 FR 58900), dated October 1,2004, and the Contractor made application to Western
for an allocation of electric service from the PDP resource pool in accordance with the
call for applications.
2.6 Western provided the public opportunities to discuss and comment on the
proposed procedures for PDP resource pool allocations and after evaluation
comments received, Western published notice of final procedures for
power from the PDP resource pool in the Federal Register Notice
December 16,2005.
2.7 In the Federal Register Notice (71 FR 7
Western approved an allocation of electric service t
execution of a definitive contract.
3.
4.
AGREEMENT: The Parties agree to
TERM OF CONTRACT:
4.1
4.2
ecome effective on September 1, 2008, and shall
t, MOl.mtain Standard Time, September 30, 2028.
'al service hereunder shall be October 1,2008.
5.
eserves the right to terminate this Contract in the event that the
take service pursuant to this Contract by December 1,2008.
~S: For the purposes of this Contract, the following definitions shall apply:
Contract Rate of Deliverv or CROD is the maximum amount of
nonwithdrawable firm capacity the Contractor is entitled to receive pursuant to this
Contract. The maximum amount of nonwithdrawable firm capacity in kilowatts (kW) the
Contractor is entitled to receive in each Winter Season and each Summer Season is set
forth in Exhibit A hereto.
3
"" -"-"^'-'"'>'."'~"~"-"""""---~",,,~-,,-,".,,,,~~....,~.,
5.2 Monthlv Energy is the quantity of firm energy expressed in
kilowatthours (kWh) that Western is committed to supply and the Contractor is entitled to
receive each month pursuant to Exhibit A.
5.3 NERC Holidays are North American Electric Reliability Council
recognized holidays which are defined in Exhibit A.
6.
5.4 Off-Peak Hours are as defined in Exhibit A.
5.5 On-Peak Hours are as defined in Exhibit A.
5.6 Seasonal Energy is the quantity of firm ener
Western is committed to supply and the Contractor is .
Season and each Summer Season pursuant to subsec . on 6. .
5.7
Summer Season is the 7-month
m the first day of the March
w.
'%l
billing period of any calendar year thr
ay of the September billing period.
5.8
'od from the first day of the October
ough the last day of the February billing period of
the following calen
s set forth herein and within the available capacity of substation and
acilities to deliver nonwithdrawable firm electric service at specifically
ted point(s) of delivery, will furnish electric service to the Contractor up to the
Contract Rate of Delivery (CROD) and Monthly Energy obligations up to the Seasonal
Energy obligations.
6.1.1 The maximum aggregate rate of delivery for all point( s) of delivery
in any monthly billing period shall not exceed the CROD established for that seas,on. The
4
CROD will be available in any hour within the billing period. Western's seasonal CROD
to the Contractor for nonwithdrawable firm capacity shall be as set forth in Exhibit A.
6.1.2 Western's Seasonal Energy: Western's Seasonal Energy
obligations to the Contractor shall be equal to the product of the Contractor's CROD
multiplied by 3,441 kWh per kW in the Summer Season and the product of
Contractor's CROD multiplied by 1,703 kWh per kW in the Winter S
as set forth in Exhibit A. Except as otherwise agreed by the Partie
Contractor may not transfer energy from season to season.
6.2 Monthly Energy Obligations: Western
the Contractor shall be set forth in Exhibit A. Deliv
shall not exceed the Monthly Energy obligatio
,ed for that month, except as
'\
otherwise agreed between the Parties i
onthly Energy obligations may
retion, if short-term conditions allow. If
creased for any month, it will revert in subsequent
months to the Mont
:Y obli ation as set forth in Exhibit A, unless Western
',' g. The Contractor may not transfer energy from month to
. lmum Schedules: In conformance with the Conformed Criteria, the
y be required to schedule a minimum rate of delivery of energy during
Hours in order to allow the United States to comply with required minimum
water releases and to allow Western to receive energy purchased to fulfill firm energy
obligations to PDP contractors. The Contractor's hourly minimum rate of delivery of
energy shall be the lesser of (i) 25 percent of the Contractor's total Monthly Energy for
the billing period involved divided by the Off-Peak Hours for that period or (ii) the
5
.....-----'-=~..;...,,_;...,.......;"""0_.""""~.,_
,.. "0,"~~.~~."_....."""",~,~......~~,,<"..~=.~?.......;,..,
Contractor's proportional percentage share of the total Monthly Energy of all PDP
contractors for the billing period involved multiplied by the sum of the overall minimum
rate of delivery of energy for required minimum water releases and the overall maximum
rate of delivery of energy purchased to fulfill firm energy obligations to PDP contractors.
Upon request of the Contractor, the requirement for a minimum rate of deliv
Off-Peak Hours may be waived by Western if operating conditions pe
determined solely by Western, the required minimum rates of deli
changed as necessary upon reasonable notice. The number ~
~
~.
minimum rate of delivery will not exceed 25 percent
obligation as set forth in Exhibit A.
6.4
furnished to the Contractor will be del
e pomt(s) and voltage(s) set forth in
Exhibit B hereto. Any transm'
sociated losses incurred to deliver said
f delivery described in Exhibit B shall be the
y tran~mission costs and associated losses incurred to
'the PDP point(s) of delivery to the point(s) at which the
c r or the Contractor's transmission provider are connected to the
shall be the responsibility of the Contractor. If Western determines
facilities are necessary to deliver electric service beyond the PDP point(s)
ery to the point at which the facilities of the Contractor ,Of the Contractor's
transmission provider are connected to the facilities of Western, the Contractor shall pay
a monthly charge to Western for capacity reserved in such facilities as specified in an
exhibit made a part of this Contract. Western may waive the monthly charge provided
6
that the Contractor or the Contractor's transmission provider pays a monthly
interconnection charge for use of such facilities.
6.5 Metering: The point(s) of measurement and metering voltage(s),
ownership of required metering equipment, and associated cost responsibilities are set
forth in Exhibit B. Since capacity and energy may be measured at other th
7. BILLINGS PAYMENT AND SCHEDUL
voltages and/or point(s) of delivery, the measured amounts may be ad.
applicable, by the appropriate loss factors set forth in Exhibit B.
measurement and metering voltage(s), the ownership ofthe,,~'"
,
associated costs will be reviewed periodically by the P
'\
once every five (5) years starting from the effective
7.1 Except as provided in s
Contractor, in the month prior
lectric service is to be received (i.e. in
service based on the capacity and energy shown in
for the electric service in accordance with
Per Contract Provisions (GPCP) attached hereto; provided,
3.1' shall not apply. The Parties may also provide for payment in
y such other means as may be mutually agreed to in writing by the
The initial bill issued pursuant to subsection 7.1, above, on or about
September 1, 2008, must include charges for electric service to be furnished during
October 2008.
7
,.,- ""-'--~""""'-''''-~''''~"'"''''';'''''''-_'~V''''''''~~''''''~'''~''''.'~'"'''''''"",^",_"'.
7.3 The rate methodology, calculated charges, and conditions shall be as set
forth in the current PDP Rate Schedule, attached hereto and made a part hereof, or any
superseding rate schedule(s) promulgated pursuant to Provision 11 of the GPCP.
8. REPLACEMENT ADVANCES RECONCILIATION SURCHARGE: Contractors
that are Party to Western's Advancement of Funds Contract No. 98-DSR-l
known as Bureau of Reclamation's Contract No. 8-CU-30-PI148, an
contractual entitlement to capacity and associated energy from the
conditions set forth therein, are entitled to receive payment or
replacement advances as provided therein. Contrasto
\
~
increased entitlement to receive electric servic shall
reconciliation surcharge (Surcharge), as dete estern. Western shall submit
bills for and the Contractor shall pay t ge until the Surcharge obligation has
been satisfied. The Contract al payments over a period of up to five (5)
d agreement by Western, the Contractor shall
l\
~
.d ofless than five (5) years. Interest will be applied on the
current United States Treasury rate, as adjusted from time
ctor's declining balance until paid. If the Contractor fails or refuses
ay the Surcharge, together with interest, within sixty (60) days after
due, the Contractor's new PDP allocation or increased entitlement to receive
c service shall be withdrawn, with sixty (60) days advance written notice from
Western.
9. POWER FACTOR:
9.1 The Contractor will maintain the power factor specified in Rate
Schedule PD-F6 or any superseding rate schedule. If the Contractor does not comply
8
-_'.~'~"----''''''''''''''__..~,~,._._^,=~-,......",,~.,"~~ "
with the stated power factor, Western, after giving the Contractor at least ninety (90) days
to correct the condition and at the Contractor's sole expense, may make delivery system
improvements associated with power factor correction to Western's transmission system
or, with the agreement of the Contractor, to the Contractor's transmission system.
9.2 If the power factor requirement specified in Rate Schedule P
GPCP are not the same, the more stringent requirement will apply.
10. SCHEDULING CAPACITY AND DELIVERIES OF ASSOC .~
Capacity and deliveries of associated energy pursuant to thi
in advance; emergencies excepted, and accounted for
schedules, in accordance with procedures agreed up
representatives of the Parties. The procedures
adapted to the needs of daily or hourl
which inadvertent deliveries,
nd shall specify the conditions under
r less than scheduled deliveries, shall be
corrected in later deliver.
11.
RESALE OF EL
11.1
"'Understands and agrees that upon execution of this
.1 The benefits of Federally generated power shall be made available
rs at rates that are established at the lowest possible level, consistent with
usiness principles, in an open and public manner. Upon request from Western,
the Contractor will provide supporting information for said level.
11.1.2 The Contractor's customers receiving the benefits of Federal power
will be supplied with information which identifies the composite energy and capacity
costs, stated in mills per kWh, of Federal power and non-Federal power.
9
'-~"""'"'-""""~^_"~'_'.~"""O<'_".~,",;.",,,,,,,,~,,,,."._.M""=~.,-,.._,~,_..
11.2 The Contractor may demonstrate compliance with this Resale of Electric
Energy Section by making available to its customers, no later than ninety (90) days after
the end of each Summer Season and each Winter Season, a statement which separately
identifies the Contractor's unit costs for Federal power, the unit costs for non-Federal
power, and the magnitude and type of other costs charged to the Contractor'
during the previous season. The Contractor may make this informatio
its
customers by including the informational statement with the custo
publishing the information in a newspaper of general circul
~
~
Contractor, or by any other method agreed upon betw
seasonal statement will be provided to Western.
will provide the supporting information for its
11.3 The Contractor will
tern, for Western's information, a copy
of each schedule of resale rate ate of execution of this Contract and,
upon adoption, a copy 0 ule of rates hereafter adopted.
11.4 will, to the extent that different rules are not prescribed by
State laws or b'al agencies having regulatory authority over the
er books of account in accordance with the Federal Energy
ssion Uniform System of Accounts Prescribed for Public Utilities and
Failure to comply with the provisions of this Resale of Electric Energy
Section may result in the loss of all or a part of the resources committed to the Contractor
pursuant to this Contract, as conclusively determined by Western's Administrator. The
Contractor will be given written notice of noncompliance with this Section and will be
given the opportunity to comment prior to any final action by Western.
10
~_~"'"'''_'_~.,'''''''c,~"",,,",~;,,,,,",~~_,.~.,~.,,,..,,..^,-.,,~,"< . u,.. ._'<.,..~ ...~",_.,_,
12. INTEGRATED RESOURCE PLANS AND SMALL CUSTOMER PLANS:
12.1 The Contractor shall comply with the Integrated Resource Plan (IRP),
Small Customer Plan, or other acceptable plans (Plan), as applicable, in accordance with
the Energy Planning and Management Program (EPAMP) (65 FR 16789), dated
March 30, 2000. EPAMP requires purchasers of Western's electric power s
12.2 Western shall administer the IRP or ot
ble Plan requirements, after
,
institute integrated resource planning, which is a planning process for
&>.
resources that evaluates the full range of energy conservation and
alternatives.
as applicable, in accordance with the EP AMP.
12.3
exhaustion of all appeals, will result i
bon of penalties as specified in the
EP AMP Federal Register Noti '*~5 FR
, dated March 30, 2000.
13.
12.4
tern, or any successor agency, shall promulgate
FR 54151), dated October 20, 1995, the Contractor, by
e within ninety (90) days after the effective date of an EP AMP
"" 0 terminate this Contract. The termination shall be effective
"'om the date of receipt of the notice by Western.
L POWER CONTRACT PROVISIONS MADE PART OF CONTRACT:
13.1 The General Power Contract Provisions (GPCP), effective June 15,2005,
attached hereto, are hereby made a part of this Contract, the same as if they had been
expressly set forth herein; provided, that Provisions 20 through 30 shall not apply and
11
14. EXHIBITS MADE PART OF CONTRACT:
14.1 Inasmuch as the Seasonal and Monthly Ener
Holidays, Off-Peak Hours, point(s) of delivery, point(
f
provided further, that if the provisions in the GPCP are in conflict with this Contract, the
provisions of this Contract shall control.
13.2 In addition to the forms of notice specified in Provision 40 of the GPCP,
communications related to scheduling, provided from and to operating personnel of either
Party, may be accomplished by electronic mail, and the sending Party shall
contemporaneous record of such communications.
metering equipment, delivery and metering voltages
and associated responsibilities may change d
set forth in exhibits. Exhibits A and B
of this Contract, they will be
formulated or modified from t'
ached to this Contract and each is
14.2
~ Mont ly Delivery Obligations, attached hereto, shall
"': 2008, shall remain in effect, and may be revised from
15.
SCHEDULING INSTRUCTIONS: Schedules of capacity and
sociated energy shall be made pursuant to written metering and scheduling
The written metering and scheduling instructions shall be developed and
agreed upon by the authorized representatives prior to scheduling capacity and delivering
associated energy pursuant to this Contract. The written metering and scheduling
instructions shall detail the operating arrangements and scheduling and accounting
procedures to be used. The written metering and scheduling instructions shall be
12
. . """~'~-""-_'-""~_~~"_-'""",w""""".",,,_~,~_~,~
..".M....""___"""'-'"_".".~_...'-_."',.~..~"." .
developed to conform to the following principles:
15.1 Metering and scheduling instructions are intended to implement the terms
of the Contract but are not intended to modify or amend it and are, therefore, subordinate
to this Contract.
15.2 It is the Contractor's responsibility to effectuate agreement(s)
porary instructions until
~
third party or parties which may be necessary to enable the Contractor
deliveries hereunder.
15.3 In the event the Contractor's authorized repr
execute the initial metering and scheduling instruction
\
Western determines to be necessary due to changes
of either Party, Western shall develop and imp
mutually acceptable instructions have
ped and executed by the authorized
16.
AUTHORITY TO E
ch individual signing this Contract certifies that the
representatives.
such individual to execute this Contract that binds
and obligates t
13
.... .'''"'''''-__;''~''""'''''''"'''-''''"n''''''~_'''''''''';'k"
The Parties have caused this Contract No. 07-DSR-11766 to be executed the date first
written above.
DEPARTMENT OF ENERGY
WESTERN AREA POWER ADMINISTRATION
By
Title
Address
a ',,,,,,-,,,,,-,,,,,,-,~,",,,_,~ ~_'.'_~~_'_'~".~".................... .~...,. ,
rad DeSpain
Utilities Director
ress Town of Marana
Water Department
51 00 West Ina Road
Tucson,PLZ 85743
14
''-'''''~''''''*''"'''~'''---'''''-''''''<~''''''~_~''",,->A","'"''"''
CERTIFICATE
I,
, certify that I am the
of the Town
of Marana, AZ Water Department, named as Contractor herein; that
who signed Contract No. 07-DSR-11766 on behalf of said Contractor, was then
; and that said Contract was duly signed for and on
Contractor by authority of its governing body and is within the scope of its p
Address
Exhibit A
Contract No. 07-DSR-11766
Town of Marana, AZ
MONTHLY DELIVERY OBLIGATIONS
1. This Exhibit A, effective under and as a part of Contract No. 07-DSR-11766, hereinafter
called Contract, sets forth Contractor's Parker-Davis Project (PDP) allocations, as
published in the Federal Register Notice (71 FR 70380), dated December 4
2. CONTRACT RATE OF DELIVERY CR
shall become effective October 1,2008. This Exhibit A shall remain'
superseded by another Exhibit A in accordance with the provision
provided that this Exhibit A or any superseding Exhibit A
expiration of the Contract.
2.1
The seasonal CROD for PDP no
. rm capacity in kilowatt(s) shall
be as follows:
Season
Total
Firm Capacity
Winter
1,000
1,000
1 ,000
1,000
2.2
D for PDP nonwithdrawable firm capacity in kilowatt(s) at the
elivery designated in Exhibit B shall be:
WINTER SEASON:
Volta2e(s) (kV)
Kilowatt(s) (kW)
Marana Tap
115-kV
1,000
Winter Season Total
1.000
Page 1 of 4
Exhibit A
Contract No. 07-DSR-11766
Town of Marana, AZ
2.2.2 SUMMER SEASON:
Point{s) of Deliverv
Voltae:e(s) (kV)
Kilowatt(s) (kW)
Marana Tap
115-kV
1,000
3. ENERGyl:
Summer Season Total
2.3 On and after October 1,2008, at the discretion and sole dete
Western, the Contractor's CROD will be subject to adjust
notice in response to changes in hydrology and riv
adjustments will be set forth in a revised Exhi
process.
3.1
The Seasonal Energy obligatio
nonwithdrawable firm energy in kWh
withdrawable
Enere:v (kWh)
Total
Firm Enere:v (kWh)
1,703,000
1,703,000
3,441,000
3,441.000
Annual Firm Enere:v Total
5.144.000
1 In its appIf~~tion for PDP electric service, the Contractor submitted historical load data establishing the energy
required to serve its qualified load was less than Western's Seasonal obligation, as defmed in subsection 6. I .2 of
this Contract. Western shall monitor energy deliveries under this Contract to ensure they do not exceed the amount
of energy required to serve the Contractor's qualified load for PDP electric service. Western will revise this
Exhibit A, as necessary, with energy obligations that are reduced appropriately based upon the Contractor's
qualified load. At such time that Western determines that the Contractor's qualified load is equal to or greater than
Western's Seasonal Energy obligation, Western will revise Exhibit A with energy obligations equal to Western's
Seasonal Energy obligation.
Page 2 of 4
-"'""""--""""-~.~''''''-~~_._'_''''''''''_~''He_ .",'" "
Exhibit A
Contract No. 07-DSR-11766
Town of Marana, AZ
3.2 The Seasonal Energy obligations for PDP nonwithdrawable firm energy in kWh
will be delivered pursuant to the Contract at each Point(s) of Delivery designated
in Exhibit B in the quantities listed below as the Monthly Energy applicable to
that billing period:
3.2.1 WINTER SEASON ENERGY OCTOBER - FEB ,
Month
October
November
December
January
February
350,000
338,000
350,000
350,000
315.000
1,703,000
3.2.2
Month
Monthlv Enerl!V (kWh)
499,000
482,000
499,000
482,000
499,000
499,000
481.000
Summer Season Total
3,441,000
5.144.000
Page 3 of 4
'--~~-=''''''''"'''>'''''''''''"''"''-'-''._'"'''~'"''''---'~'-'-''''-''
""'~'-.''''''"~"'--'---"",;--",=,-,,~'"
Exhibit A
Contract No. 07-DSR-11766
Town of Marana, AZ
4. The following terms, when used in the Contract or Exhibits, shall have the meaning
specified:
4.1 NERC Holidavs: Holidays observed by NERC. These days are normally New
Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day
5.
and Christmas Day, unless otherwise determined by NERC. Any
the above-listed days shall be identified in an attachment t
4.2 Off-Peak Hours: All day on Sunday and NERC Ho .
hours on Monday through Saturdays:
4.2.1 The hour ending 2300 through the H ur e
Time during the period design
light saving time as observed by
\\
NERC.
4.2.2
e hour ending 0600 Pacific Standard
iod designated standard time as observed by NERC.
4.3
This Exhibit A
': 07-DSR-11766 may be modified in accordance with
Page 4 of 4
,_.....,_."'__"'~,~,~_.. "'~_.4."~".,"_"""",--._"""""",,,......~,_...,.. .
Exhibit B
Contract No. 07-DSR-11766
Town of Marana, AZ
DELIVERY CONDITIONS
1. This Exhibit B, effective under and as a part of Contract No. 07-DSR-11766, hereinafter
called Contract, shall become effective October 1, 2008 and shall remain in effect until
superseded by another Exhibit B in accordance with the provisions of the C
2. POINTS OF DELIVERY: Western will furnish firm cap
provided that this Exhibit B or any superseding Exhibit B shall termin
of the Contract.
Contractor or the Contractor's scheduling representati
of Western at the point( s) of delivery and deli
e set forth below. The
transmission loss between the point(s)
and the point(s) of measurement is the
responsibility of the Contracto
Point(s) of Delive
and VoItae:e .
Measurement
oItae:e(kV)
Loss Between Point(s) of
Delivery and Point(s) of
Measurement (Percent)
o
3.
s ofPDP capacity and energy are based upon scheduled
no meters are necessary for billing purposes.
4.
to Contract No. 07-DSR-11766 may be modified in accordance with
Page 1 of 1
'" ......_~~,,_.'-'~._-~~,~-->~.,""-""^"-'~............"""'O'"M.'M''"'^
AGENDA ITEM:
TOWN COUNCIL
MEETING
INFORMATION
MEETING DATE: May 16, 2007
TOWN OF MARANA
J.2
TO: MAYOR AND COUNCIL
FROM: Frank Cassidy, Town Attorney
SUBJECT: Resolution No. 2007-82: Relating to Development; approving and
authorizing the Mayor to execute the Cascada Development
Agreement.
DISCUSSION
The Cascada Specific Plan was adopted by the Council on December 5, 2006. At the same meet-
ing, the Council approved and authorized the execution of a Cascada Specific Plan Development
Agreement in the form as had been negotiated up to that point. From December 5,2006 to now,
representatives of the Town and the Developer have continued negotiations with respect to the
development agreement, and the result of those negotiations is now presented to you for ap-
proval.
The key differences between the draft Cascada Specific Plan Development Agreement as was
presented to the Council on December 5, 2006, and the draft being presented to you tonight are
the following:
1. The language has been modified throughout the document to reflect the adoption of the
Cascada Specific Plan in the past (as originally drafted, the language of the Cascada Spe-
cific Plan Development Agreement was written as if the development agreement and the
specific plan would be approved concurrently).
2. A new recital (paragraph Q) has been added to give notice of the Developer's intention to
seek amendment of the Cascada Specific Plan if the Federal Government waives or ad-
justs certain conservation easement restrictions.
3. Specifically-negotiated potable water improvements are now addressed III para-
graph 3.1.2 of the agreement.
4. The right-of-way dedication language (paragraph 4.2) has been clarified.
Various other, more minor, revisions have been made. A computer-generated comparison of the
draft presented for approval tonight as compared with the draft as authorized for execution on
December 5, 2006, is provided with the materials.
{00004734.DOC I}
FJClcds 5/4/07
'---'-~"',"",,,,,,,,,,,,,,,,,,,,",,,-,,,,",,,,,",,~,,",,,,....,,,,",,,,,,.,,,,-,"",~od,..;...''-d~,'..<....~
RECOMMENDATION
Staff recommends adoption of Resolution No. 2007-82, approving and authorizing the execution
of the Cascada Specific Plan Development Agreement.
ATT ACHMENT(S)
Cascada Specific Plan Development Agreement;
Comparison of the new version to the version approved in December, 2006
SUGGESTED MOTION
I move to adopt Resolution No. 2007-82.
{00004734.DOC I}
-2-
FJClcds 514107
~""""''''-''''''~''''''''";'~'-'''''''''''-~'';''''''.~'~-'''-'''-'~"''''''-'''''''''-
MARANA RESOLUTION NO. 2007-82
RELATING TO DEVELOPMENT; APPROVING AND AUTHORIZING THE MAYOR TO
EXECUTE THE CASCADA DEVELOPMENT AGREEMENT.
WHEREAS the Mayor and Council find that the terms and conditions of the Cascada
Development Agreement 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 Cascada Development Agreement between the
Town of Marana and Fidelity National Title Agency, Inc, an Arizona corporation, as Trustee
under Trust No. 60,182, attached to and incorporated by this reference in this resolution as
Exhibit A is hereby approved, and the Mayor is hereby authorized to execute it for and on behalf
of the Town of Marana.
BE IT FURTHER RESOLVED that 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 aforementioned agreement.
PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF
MARANA, ARIZONA, this 16th day of May, 2007.
Mayor Ed Honea
ATTEST:
Jocelyn C. Bronson, Town Clerk
APPROVED AS TO FORM:
Frank Cassidy, Town Attorney
{00004717.DOC /}
FJC/cds 5/4/07
.~"".'~-''''''''''---~;'>''''''''~''''~_'''.~n~~~...","'__~.'' ..
May 10, 2007
RE: Council packet for May 16, 2007
Mayor and Council:
Attached to this note are revised documents to accompany the Cascada
development agreement b1uesheet and resolution - Item J. 2 in your packet for
May 16th. Please discard the development agreement currently in your packet and
replace with these documents. They are:
1. Development Agreement showing changes approved by Council on 12/5/06.
2. Clean copy of Development Agreement
3. Exhibits A and B (map and legal description of the property).
Thanks,
~ -,-"""""'-_...._~~-"-,,-,,.,"'.,... "._"...."'..~~--
CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
TOWN OF MARAN A, ARIZONA
THIS DEVELOPMENT AGREEMENT ("Agreement") is made by and between the TOWN OF
MARAN A, an Arizona municipal corporation (the "Town") and RED POmT DEVELOPMENT, INC.,
aft Arizofta eorporation, FIDELITY NATIONAL TITLE AGENCY, INC, an Arizona corporation, as
Trustee under Trust No. .w+&%0.182 and not in its corporate capacity, and PACIFIC
INTERNATIONAL PROPERTIES, L.L.P., an L'\rizona limited liability partnership (all three of 'Nhieh
are eolleetively referred to in this L'\greemeftt as J.the "Owner"). The Town and the Owner are
collectively referred to in this Agreement as the "Parties," and each is sometimes individually
referred to as a "Party."
RECITALS
A. The Owner owns or controls approximately 1,476 acres of land located in the Town
limits, as depicted on the map attached as Exhibit "A" and legally described in Exhibit "B" (the
"Property"). The Property and its development are eurrefltlywere included in, and are-subject
to, the provisions of the Acacia Hills Specific Plan, Marana Ordinance No. 88.16, adopted July
5, 1988; or, the Northgate Specific Plan, Marana Ordinance No. 91.09, adopted May 7, 1991
(collectively, the "CurrentQ1d Specific Plans"). The Cl:lrrentQ1d Specific Plans ~would
have oermitted the development of in e);:eess ofinore than 10,000 units on the Property.
B. The portion of the Property covered by the Northgate Specific Plan is also the subject of
the Northgate Development Agreement recorded in the Pima County Recorder's Office in
Docket 9038, at Pages 353-381 (the "Northgate Development Agreement").
C. The Property is included in the various phases of development set forth in the Cascada
Specific Plan (the "Cascada Plan"), which was submitted to adooted bv the Town QIl
December 5. 2006 bv Marana Ordinance No. 2006.23 to modify, amend and supersede the
CurreRtOld Specific Plans as to the Property. The Cascada Plan effectively downzones the
Property and substantially reduces the number of units to be developed within the Property to a
maximl:lm of 3,805 unitsthe densities Dfooosed in the Cascada Plan instead of the more than
10,000 units permitted under the CurrentOld Specific Plans.
D. ~With the December 5. 2006 approval of the Cascada Plan and adootion of the
Cascada Plan and with the aODfoval of this Agreement, the CurrentOld Specific Plans,
including any and all related development agreements, shall be modified, amended and
superseded ~as to the Property, and the Property shall be developed in phases pursuant to
the Cascada Plan, as clarified and sl:lpplementalsuoolemented by this Development Agreement.
E. The Cascada Plan also includes numerous special design features and public amenities
not included in the CurrentQld Specific Plans, including without limitation, special street
standards and an integrated system of trails and several hundred acres of open space featuring,
among other things, over 220 acres of natural undisturbed open space and wildlife habitat;
approximately 100 acres of drainage ways, including undisturbed drainage bottom and wildlife
{00002248.DOC 17\ 5J
CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
- 1 -
L1 /++1-2007
corridors; more than 360 acres of open space within the area designated as Parcel 5 in the
Cascada Plan; and, close to 80 aODfoximatelv 67.4 acres designated as recreational open space
to be dedicated to and maintained bv the Town and aODfoximatelv 13 acres of recreational
~pen soace to be transferred and maintained oursuant to oara2:raoh 2.9 of this A2:reement,
which will include multi-purpose recreation facilities and on-site storm water
retention/detention.
F. Pursuant to the CurrentOO Specific Plans, the Owner has made substantial
improvements and commitments and, pursuant to the Cascada Plan and this Agreement, will
continue to make a substantial commitment of resources for public and private improvements
during each phase of the development of the Property~ includin& without limitation, roadways,
parks, public trails, open space and wildlife corridors, an open space management plan,
schools, sewer and water service, other utilities, and similar or related improvements.
G. The Town and the Owner further acknowledge that the development of each phase of
the Property, pursuant to the Cascada Plan and this Agreement, will result in planning and
economic benefits to the Town and its residents.
H. The Northgate Development Agreement expressly provides, subject to specific
limitations, that after the date of the development agreements applicable under the CurreHtQ1d
Specific Plans (May 7, 1991) "the Town shall not impose or enact any additional conditions,
exactions, dedications, development or impact fees, rules or regulations applicable to or
governing the development of the Property." This language is referred to in this Agreement as
the "Northgate Vesting Language."
I. The Town questions the validity of the Northgate Vesting Language for reasons
including (i) the Owner's failure to undertake substantial development in reliance on the
CurrentQ1d Specific Plans and the Northgate Development Agreement within a reasonable
time after their adoption, (ii) the absence of a reasonable time limitation on the Northgate
Vesting Language, resulting in an illegal attempt to restrict future Councils' legislative
authority, (iii) the absence of benefit (consideration) to the Town, and (iv) special treatment of
the Owner with respect to development impact fees in violation of A.R.S. S 9-463.05, which
requires that all such fees be "assessed in a non-discriminatory manner."
J. The Owner contends that it has substantiallv chan2:ed its oosition and has made
substantial commitments and invested substantial resources in reliance on the Old Soecific
Plans and the North2:ate Develooment A2:reement and further contends that the Northgate
Vesting Language is legally binding, enforceable and effective.
K. The Parties desire to set aside their disagreement about the Northgate Vesting Language
by superseding and replacing the Northgate Development Agreement as to the Property with
this Agreement.
L. The Town has determined that it is in the best interests of the Town and its residents to
have the Property developed pursuant to the Cascada Plan, and its reduced densities and special
features, and subject to the substantial additional conditions, exactions, and commitments
contained in the Cascada Plan, and to the extent provided for in this Agreement.
M. The Town is currently in the design process on a project to construct a new Interstate 10
interchange at Twin Peaks Road (the "Twin Peaks TI Project"), and anticipates that
construction will begin in April 2008.
{00002248.DOC 17\
5}
LliI-+,l2007
CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
- 2 -
N. The plans for the Twin Peaks TI Project include fully reconstructed roadways for
Camino de Manana and Linda Vista Road adjacent to and in the vicinity of the Property. The
fully reconstructed Camino de Manana and Linda Vista Road improvements as they would be
constructed as part of the Twin Peaks TI Project are referred to in this Agreement as the
"CdM/L V Improvements."
O. To facilitate the timely development ofthe Cascada Plan, the Owner desires to construct
limited portions of the CdMIL V Improvements before construction of the Twin Peaks TI
Project begins.
P. The Parties desire to allow the Owner the flexibility to construct portions of the
CdMlL V Improvements as long as the Owner's construction does not unreasonably interfere
with or delay the Twin Peaks TI Project.
Q. THe deyelopmeRt of the Property sHall be governed by tHe Caseada Plan, ineludiRg the
Owner's desigR aRd development standards aRd guidelines, as clarified aRd supplememed by
this ,^.greemeRt. THe Marana Development Code, including the writteR mles, regulations,
procedures, aRd policies relating to developmeRt of laRd, adopted or approved by tHe Mayor
aRd COI:lFlcil (colleetively the "MaraRa De'/elopment Code") iR effeet OR tHe effective date of
tHis ,^.greemeRt shall apply to the eJ)(teRt not cO'.'en~d by tHe Cascada PlaR or tHis ,\greement.
Q. Certain oortions of the Prooertv are desirmated as ooen soace under the Cascada Plan
based on restrictions under a conservation easement in favor of the federal !!ovemment. If the
federal !!ovemment waives or adiusts the conservation easement restrictions. the Owner olans
to file an aoolication to amend the Cascada Plan to allow affected oortions of the conservation
easement to be develooed. and the Owner acknowled!!es that anv such amendment to the
Cascada Plan shall be subiect to aooroval bv the Town Council.
R. This Agreement is consistent with the portions ofthe Town's General Plan applicable to
the Property.
S. The Parties understand and acknowledge that this Agreement is a "Development
Agreement" within the meaning and pursuant to the terms of A.R.S. S 9-500.05.
AGREEMENT
Now, THEREFORE, in consideration of the foregoing premises and the mutual promises
and agreements set forth in this Agreement, the Parties hereby agree as follows:
Article 1. Effect.
Artiele 1. The North2ate Development A2reement.
1.1. =As of the effective date of this Agreement, the Northgate Development Agreement is
superseded as to the Property and replaced by this Agreement.
1.2. Geo!!raohic Effect. The Cascada Plan and this A!!reement shall not have anv effect on
land covered bv the Old Soecific Plans but not included within the Prooertv exceot as exoresslv
oermitted bv this A!!reement or an amendment to the Cascada Plan.
Article 2. Development of the Property.
2.1. Specific Plan.General. The develooment of the Prooertv shall be !!ovemed bv the
underlvin!! zonin!! or land use desi!!nation and the standards orovided for in the Cascada Plan,
{OOO02248.DOC 17\
5]
LlIW2007
CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
- 3 -
includinl! the Owner's desil!n and develonment standards and l!uidelines. as clarified and
supplemented by this Agreement, is hereby incorporated into the To'sn's General PlaH for all
purposes. Development of the Proflerty shall be in accordance with the Cascada Plan, as may be
amended from time to time. Uflon the approval of the Cascada Plan by the TO'.vn, the Owner
shall be . The Marana Develonment Code. includinl! the written rules. rel!ulations. substantive
nrocedures. and nolicies relatinl! to develonment of land. adonted or annroved bv the Mavor and
Council (collective Iv the "Maran a Develonment Code") in effect on the effective date of the
Cascada Plan shall annlv to the extent not covered bv the Cascada Plan or this Al!reement. For
numoses of this Al!reement. the underlvinl! zoninl! or land use desil!nation ("Land Use
De~il!nation") ~all mean full develonment. exclusive of voluntarY limitations or restrictions.
un er the contr lli~l! Land Use Desil!nation included in the Cascada Plan. and if not so covered.
under the Marana Develonment Code.
2.2. Snecific Plan. The Cascada Plan and its underlvinl! Land Use Desil!nations. as clarified
and sunnlemented bv this Al!reement. are herebv incomorated into the Town's General Plan for
all numoses. Develonment of the Pronertv shall be in accordance with the Cascada Plan. as mav
be amended from time to time. The Owner is authorized to implement the uses, densities, and
intensities set forth in the Cascada Plan, and will be accorded all approvals necessary to permit
the Owner to implement the Cascada Plan, subject to the Town's review and approvals of
appropriate and required applications, block and subdivision plats, development or site plans and
applicable development standards and specifications. The Town and the Owner acknowledge
that adjustments or amendments to the Cascada Plan. includinl! the reasonable waiver or
adiustment of conditions or limitations on the uses or densities included within the Cascada Plan.
may be necessary from time to time to reflect actual roadway alignments, changes in market
conditions, development financing, and/or to meet the new requirements of one or more of the
potential users or builders of any part of the Property. The Parties shall cooperate in good faith to
agree upon and use reasonable best efforts to process any adjustments or amendments to the
Cascada Plan. SubjcctConsistent with the administrative nrocedure nrovided for in the Town's
existinl! rel!ulations and the terms of this Al!reement and subiect to the limitations set forth in
paragraph 4.3 below, the Town agrees to approve or issue such permits, plans, specifications
and/or plats of or for the Property as may be requested by the Owner in order to implement, and
which are reasonably consistent with, the underlvinl! Land Use Desil!nations in the Cascada
Plan. The Town's failure to timely approve any permits, plans, specifications or plats, or other
matters necessary to permit the Owner or any user or builder within the Property to reasonably
implement the Cascada Plan, shall be in breach of this Agreement. If and when the Parties find
that changes or adjustments are necessary or appropriate to be made to the Cascada Plan, they
shall, unless otherwise required by law, effectuate such changes or adjustments through
administrative amendments approved by the Town's Planning Director, which after execution,
shall be attached as an addendum to and shall become part of the Cascada Plan, and may be
further changed and amendedadiusted from time to time as necessary, with the approval of the
Town and the Owner as provided in this paragraph. Unless otherwise required by law, no such
administrative amendmentsadiustment shall require prior notice or hearing. Notwithstanding the
foregoing, the following matters shall not be considered administrative changes or amendments,
but shall be considered substantive amendments which shall be reviewed by the Planning and
Zoning Commission and approved by the Town Council:
2.2.1. Alteration of the permitted uses of the Property;
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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2.2.2. Increase in the density or intensity of use or number of dwelling units~l=except as
otherwise allowed in connection with the transfer of specific density and intensity
requirements between individual parcels as provided in the Cascada Plan and this
Agreementj;
2.2.3. Increase in the maximum height and size of permitted buildings (except as allowed
in connection with the transfer of specific building height and size limitations between
individual parcels within the Property as provided in the Cascada Plan and this Agreement);
and,
2.2.4. Deletion of a requirement for the reservation or dedication of land for public
purposes, except for minor boundary adjustments approved by the Planning Director.
2.3. Current Specific Plan and Other Development Review. Each phase of the Property shall
be developed in a manner consistent with the Development Regulations and the Cascada Plan, as
clarified by this Agreement. The Cascada Plan establishes the basic land uses, the densities and
intensities of such uses, whereas this Agreement quantifies the exactions and the development
regulations applicable to the development of the Property. Upon the Owner's compliance with
the applicable development review and approval procedures and the substantive requirements of
the development regulations that now apply to the Property, the Town agrees to timely process
all submittals for any portion of the Property and to timely approve such block plats, any
subdivision or other plats and any building or other permit applications consistent with the
Cascada Plan and applicable development regulations and to timely issue such permits or similar
approvals for the Property.
2.4. Zoning and Plat Conditions. The Owner agrees to fulfill all related conditions of the
Cascada Plan and other applicable development regulations. The Cascada Plan, as clarified and
supplemented by this Agreement, supersedes the existing subdivision plats within the Property.
2.5. Abandonment of Previouslv Dedicated Ri2:hts-of-Wav and Easements. Subject to
compliance with any applicable statutory requirements (for example, A.R.S. S 9-407 or A.R.S.
S 28-7203), any road or other dedication or easement in favor of the Town made Dursuant to the
Old SDecific Plans or located on the PrODertv or contained in or conveyed pursuant to any ffi:leh
deed or subdivision plat iswithin the ProDertv shall be deemed abandoned effective upon the
reali2:nment of anv such road or other dedication or easement or UDon the recording of a new or
amended plat covering the land area with the particular road or other dedication in fa','or of the
+ewnor easement.
2.6. ArchaeologicallHistoric Resources. Development of each phase of the Property shall
meet all Town requirements set forth in Title 2 and Title 20 of the Marana Development Code
related to Archeological and Historic Resources.
2.7. Residential Design Guidelines. All residential construction on any portion of the
Property shall be constructed in accordance with the design standards and guidelines contained
in the Cascada Plan. The Parties acknowledge and agree that the residential guidelines contained
in the Cascada Plan fall within the exception for specific plan-tailored design standards found at
Section 8.06.02(B) of the Marana Land Development Code; consequently, the Town's residential
guidelines as adopted in Marana Ordinance No. 2005.18 shall not apply to the Property.
2.8. No Manufactured Housing.- No manufactured housing shall be permitted on any portion
of the Property.
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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..,.,~..",~,~~---~,.....".~--_.~-~,._~--
2.9. Management of Open Space. Owner shall cause to be prepared, at Owner's cost, a
maaagement plan for the proper management and maintenance of the open space areas included
in the Cascada Plan. One or more homeowners associations established by declarations of
restrictive covenants recorded over all or part of the Property or a government or conservation
entity the Town reasonably determines is willing and able to permanently maintain the
undisturbed natural areas as required by the Cascada Plan and this ArtioleA~reement shall be
gIVen:
2.9.1. Enforcement authority over and control of all undisturbed natural areas set aside
and maintained as required by the Cascada Plan and this ArtieleA~reement; and
2.9.2. Permanent ownership of all undisturbed natural areas set aside and maintained as
required by the Cascada Plan and this l\rtieleA~reement that are located outside the
boundaries of individually-owned residential lots.
2.10. Alignment of Roadways and Adiustments. The Parties acknowledge that the locations
and alignments of major roadways set forth in the Cascada Plan are based on current conceptual
designs and traffic projections. The actual design and improvement of the major roadways within
the Property, including Camino de Manana and Linda Vista, will necessarily require adjustments
from existing roadway alignments and corresponding parcel boundaries. Upon completion of the
design and actual construction of the major roadways within the Property, the boundaries of the
parcels established by the Cascada Plan shall be adjusted to correspond to the actual alignment of
the roadways, as constructed, through the submittal of a revised plat or similar submittal
permitted by paragraph 2.11 of this Agreement. In such submittal, Owner shall have the right to
adjust the permitted uses and densities of land located along the actual roadway alignment to
preserve the overall percentage or ratio of each such use and density classification within the
Property permitted under the Cascada Plan.
2.11. Revised Plat. The Owner may submit and the Town shall approve revised block plats,
subdivision plats, development plans or similar submittals for portions of the Property which
may vary from the Cascada Plan, provided that the revisions in any such submittal are
substantially consistent with the general development concept and underlvin~ Land Use
Desi~nations contained in the Cascada Plan, or the provisions of this Agreement, without the
necessity of amending the Cascada Plan or this Agreement. The determination of consistency
shall be made by the Town's Planning Director, and appeals may be taken to the Town's board
of adjustment in a manner consistent with other zoning interpretation appeals.
2.12. Timing. The Town and Owner acknowledge the necessity of prompt review by the
Town of all plans, applications, and other materials submitted by the Owner ("Submitted
Materials") pursuant to the Cascada Plan, this Agreement, or any zoning, permit, or other similar
procedure pertaining to the development of the Property. The Town agrees to use its best efforts
to accomplish such prompt and expeditious review of all such Submitted Materials whenever
possible.
Article 3. Utilities and On-Site Infrastructure.
3.1. Water Utilities.
3.1.1. The Owner has enteredwill enter into a standard form Water Service Agreement
with the Town for potable (and non-potable should Owner so a~ree) systems which sets forth
the various agreements of the Parties relating to, among other things, the interconnection and
{00002248.DOC /71
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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^~~"",",.""~""---~~.".-_.,,~,,,,~-~........~",,.,.~...~-_....
main extension from the existing water system, and the development, construction,
dedication, ownership, and design of the water system.
3.1.2. The Owner shall at its own cost desiQ:n and construct and have in actual ooeration
and service the followinQ: water infrastructure imnrovements (for ournoses of this oaraQ:raoh.
the term "EDU" means "eauivalent demand unit": that is. the amount of water used bv a
tvoical sinQ:le-familv detached home. which the Town currentlv estimates to be 335 Q:allons
oer dav):
3.1.2.1. A Z-Zone booster caoacitv uOQ:rade of 780 {!allons oer minute on or before
connection of uses on the Prooertv totalinQ: 612 EDUs.
3.1.2.2. An 865 Q:allon-oer-minute well (Q:enerallv referred to as "Well 2") on or
before connection of uses on the Prooertv totalinQ: 700 EDUs.
3.1.2.3. An 865 Q:allon-oer-minute well (Q:enerallv referred to as "Well 3") on or
before connection of uses on the Prooertv totalinQ: 1.860 EDUs.
3.1.2.4. A 640.000 Q:allon storaQ:e caoacitv uOQ:rade (reservoir) on or before
connection of uses on the Prooertv totalinQ: 2.197 EDUs: orovided. however. that if
construction of a reQ:ional storaQ:e facility adeauate to serve the Prooertv beQ:ins before the
Owner beQ:ins construction of this 640.000-Q:allon reservoir. the Owner shall contribute
the estimated cost of the 640.000-Q:allon reservoir toward the construction of the reQ:ional
storaQ:e facilitv on or before connection of uses on the Prooertv totalinQ: 2.197 EDUs.
3.1.3. The Town's monthlv base water service fee for one-inch residential meters. which
are beinQ: installed to serve homes on the Prooertv instead of %" x %" meters to
accommodate fire suonression facilities. shall be the same as the Town's monthly base water
service fee for %" x %" meters.
3.2. Fire Protection. Before a certificate of occupancy is issued for any dwelling unit on the
Property, the Owner shall have completed or shall provide evidence to the Town that Owner has
made a diligent effort to complete the process of having the Property annexed into the Northwest
Fire District.
3.3. Compliance with State and Federal Laws and Regulations. Owner expressly
acknowledges that no approval, permit or authorization of the Town authorizes the Owner to
violate any applicable federal or state laws or regulations, or relieves the Owner from the
independent responsibility to ensure compliance with all applicable federal and state laws and
regulations, including but not limited to the Endangered Species Act and Clean Water Act.
Article 4. Owner's Contributions for Roadway Improvements,
Public Schools, and Public Parks and Trails
4.1. Cascada Plan Roadwavs. The Owner shall construct all interior subdivision streets and
roads within the Property as set forth in the Cascada Plan in connection with the development of
the various phases of the Property under the Cascada Plan. Owner mav choose to utilize the
Town's oublic street standards even on streets initially shown as nrivate in the Cascada Plan
where Owner and Town aQ:ree that the street will be dedicated to the Town.
4.2. Rights of Way for "^~diaoent RegiOl~al Roachvavs.Maior Routes RiQ:ht-of-Wav
Dedications. The Owner shall dedicate all rights-of-way needed from the Property for any
portion of the /\djaeent Regional Roadways on the later of the follo'Ning datesTwin Peaks TI
{00002248.DOC 17\ 5J
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il/.I-7+2007
Proiect (including without limitation the CdM/L V Imnrovements). Camino de Manana and
Lambert Lane. as shown on the Town's current maior streets and routes nlan. The dedication
shall occur unon the earlier of the following:
1.2.1. }Jinety days after the effective date of this Agreement; or
4.2.1. Sixty days after theWhen the Town reauests the right-of-wav (generallv unon
completion of90% plans for the roadway that is the subject of the requested portion of right-
of-way-:-): or
4.2.2. Unon recordation of a subdivision nlat for nronertv that includes or is adiacent to
the right-of-wav.
4.3. Concurrency of On site Development and the Twin Peaks TI Proiect. The Owner shall be
permitted to construct improvements on the Property before and during the construction of the
Twin Peaks TI Project, provided that construction activities on the Property and on adjacent
roadways shall not unreasonably interfere with the construction of the Twin Peaks TI Project.
4.4. Owner's Construction of Portions of the CdM/L V Improvements. The Owner shall be
permitted to construct portions of the CdM/L V Improvements (in conformance with the Town-
anoroved engineering nlans for the CdM/L V Imorovements) to the extent they are necessary for
development of the Cascada Plan so long as the Owner's construction begins not later than eight
months before and is contractually obligated to finish not later than the date of the then-
anticipated start of construction of the Twin Peaks TI Project. Owner shall receive development
impact fee credits (see Article 6 below) against the Marana South Transportation Development
Impact Fee for its actual cost to construct portions of the CdMlL V Improvements.
4.5. Public Parks and Public Trails. The Property is subject to the Town-Wide Park
Development Impact Fee adopted by Ordinance No. 2005.11, as amended from time to time (the
"Park Impact Fee"). Owner shall receive development impact fee credits (see Article 6 below)
against the Park Impact Fee for all land dedicated for public parks or public access trails,
whether by the grant of fee title or a public access easement, and all costs incurred by Owner in
the construction or improvement of the regional park and other public access parks or trails
included in the Cascada Plan.
4.6. School Land. Deyeloper shall atPursuant to senarate Agreement with the option of
Marana Unified School District dedicate land desigaated as sehool sites on the Caseada Plan to
the TO'lm in tnlst for public sehool use or shall pay Marana Unified Sehool District a f.ee in lieu
of the land dedication. This land is referred to as the "School Land." Uatil ownership of the
School Land is transferred to a public school entity for the construetion of a public sehool, the
Town may use the School LaRd for public park purposes. The Town shall be obligated to transfer
ownership of the Sehool LaRd to a public school entity if the public school entity requests it and
proves to the Tmvn's satisfaction that actual construction of a publie school. Owner will begin on
the School Land within a reasmmble period of time. If ownership of the Sehool LaRd is not
transferred to a pl:lblic school eatity within 15 years of the date of this "^igreement, the School
Land may be used by the Town of Marana for pl:lblic recreation purposes. The School LaRd shall
be delineated at the time of TO'Nn appro'lal of the Preliminary Plat, based on f.eedback by the
Ma-rana Unified School District, the Tmvn's Parks and Recreation Direetor, and the TO'.vn's
Planning Director. In lieu of the dedication of the School Land, De';eloper may contribute a
School Improvement Contribution Fee of $1,200 per residential lot, payable to the Marana
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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Unified School District. The School Improvement Contribution Fee shall be due and payable at
the issuance of the building permit for each residential unit.
Article 5. Cooperation and Alternative Dispute Resolution.
5.1. Appointment of Representatives. To further the commitment of the Parties to cooperate
in the progress of the Development, the Town and the Owner each shall designate and appoint a
representative to act as a liaison between the Town and its various departments and the Owner.
The initial representative for the Town (the "Town Representative") shall be the Planning
Director, and the initial representative for the Owner shall be Cheryl HallLarrv Kreis or a
replacement to be selected by the Owner. The representatives shall be available at all reasonable
times to discuss and review the performance of the Parties to this Agreement and the
development of the Property.
5.2. Default: Remedies. If either Party defaults (the "Defaulting Party") with respect to any
of that Party's obligations under this Agreement, the other Party (the "Non-Defaulting Party")
shall be entitled to give written notice in the manner prescribed in paragraph Article 8 to the
Defaulting Party, which notice shall state the nature ofthe default claimed and make demand that
such default be corrected. The Defaulting Party shall then have (i) twenty days from the date of
the notice within which to correct the default if it can reasonably be corrected by the payment of
money, or (ii) thirty days from the date of the notice to cure the default if action other than the
payment of money is reasonably required, or if the non-monetary default cannot reasonably be
cured within sixty days, then such longer period as may be reasonably required, provided and so
long as the cure is promptly commenced within sixty days and thereafter diligently prosecuted to
completion. If any default is not cured within the applicable time period set forth in this
paragraph, then the Non-Defaulting Party shall be entitled to begin the mediation and arbitration
proceedings set forth in this Article. The Parties agree that due to the size, nature and scope of
the Development, and due to the fact that it may not be practical or possible to restore the
Property to its condition prior to Owner's development and improvement work, once
implementation of this Agreement has begun, money damages and remedies at law will likely be
inadequate and that specific performance will likely be appropriate for the enforcement of this
Agreement. This paragraph shall not limit any contract or other rights, remedies, or causes of
action that either Party may have at law or in equity.
5.3. Mediation. If there is a dispute under this Agreement which the Parties cannot resolve
between themselves, the Parties agree that there shall be a forty-five day moratorium on
arbitration during which time the Parties agree to attempt to settle the dispute by nonbinding
mediation before commencement of arbitration. The mediation shall be held under the
commercial mediation rules of the American Arbitration Association. The matter in dispute shall
be submitted to a mediator mutually selected by Owner and the Town. If the Parties cannot agree
upon the selection of a mediator within seven days, then within three days thereafter the Town
and the Owner shall request the presiding judge of the Superior Court in and for the County of
Pima, State of Arizona, to appoint an independent mediator. The mediator selected shall have at
least five years' experience in mediating or arbitrating disputes relating to real estate
development. The cost of any such mediation shall be divided equally between the Town and the
Owner. The results of the mediation shall be nonbinding on the Parties, and any Party shall be
free to initiate arbitration after the moratorium.
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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5.4. Arbitration. After mediation, as provided for in this Article, any dispute, controversy,
claim or cause of action arising out of or relating to this Agreement shall be settled by
submission of the matter by both Parties to binding arbitration in accordance with the rules of the
American Arbitration Association and the Arizona Uniform Arbitration Act, A.R.S. S 12-501 et
seq., and judgment upon the award rendered by the arbitrator(s) may be entered in a court having
j urisdicti on.
Article 6. Future Development Impact Fees
6.1. Credits. If the Town adopts a development impact fee for the same infrastructure for
which the Owner has contributed land or made improvements or paid a voluntary fee pursuant to
this Agreement, the Owner shall be entitled to a credit for such contributions as set forth in
A.R.S. S 9-463.05.
6.2. Value of Dedicated Property. The portions of the Property dedicated for public use
("Dedicated Property") and for which Owner is entitled to receive a development impact fee
credit shall be valued based on property values used to establish the applicable development
impact fee. As currently in effect, theThe Marana South Transportation Development Impact Fee
was established without including any anticipated costs for right-of-way acquisition.
Consequently, to the extent dedication of right-of-way could be properly required for
development of the Cascada Plan, no development impact fee credit will be granted for right-of-
way dedicated for improvements funded by the Marana South Transportation Development
Impact Fee unless it is amended to include right-of-way costs or unless the Town adopts some
other roadway development impact fee against which the right-of-way may be creditable.
Nothing in this paragraph waives the Owner's rights conferred by A.R.S. S 9-500.12. The credit
shall be based on the fair market value of the dedicated land at the time of its dedication.
Article 7. Protected Development Rights
7.1. General. To ensure reasonable certainty, stability and fairness to the Owner and the
Town for a reasonable period of time, the land use designations, uses, and densities that now
apply to the Property, as amended by this Agreement, shall remain in effect and shall not be
changed without the consent of the Owner as follows:
7.1.1. For a period of seven years after the effective date of this Agreement.
7.1.2. For an additional seven-year period if within the seven-year period referenced in
paragraph 7.1.1 above the Owner has accomplished all of the following:
7.1.2.1. Construction of the sewer outfall sewer line intended to serve the
development ofthe Cascada Plan south of Lambert Lane;
7.1.2.2. Construction of a reservoir addition, approximately 6~0.000 gallons in
size, augmenting the existing Hartman Vistas Reservoir;
7.1.2.3. Construction of a 16-inch water main intended to serve the development of
the Cascada Plan; and
7.1.2.4. Obtaining active permits and undertaking grading, paving and other
infrastructure improvements, including roadways, ultimately to be dedicated to the
public.
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7.1.3. For an additional six-year period if by the end of the seven-year period referenced
in paragraph 7.1.2 above the Owner has accomplished the following:
7.1.3.1. Construction of a second 16-inch well site to be dedicated to the Town (or
other applicable water company); and
7.1.3.2. Further engaged in grading, paving sewer and water installations in
furtherance of the development specified in the Cascada Plan and infrastructure
improvements required by the Town of Mar ana.
7.2. Market Conditions and Unforeseen Events. To the extent market conditions or other
unforeseen events impede the completion of development within 21 years, and to the extent there
is not an over-riding public need to modify the Cascada Plan, the Town and the Owner agree to
resolve, in good faith, the balancing of rights and further obligations against the public good in
order to fulfill the objectives ofthe Cascada Plan.
Article 8. Notices and Filings.
8.1. Manner of Serving. All notices, filings, consents, approvals and other communications
provided for in or given in connection with this Agreement shall be validly given, filed, made,
transmitted or served if in writing and delivered personally or sent by registered or certified
United States mail, postage prepaid, if to (or to such other addresses as any Party may from time
to time designate in writing and deliver in a like manner):
To the Town: Town Manager
Town of Marana
Marana Municipal Complex
11555 West Civic Center Drive, A3
Marana, AZ 85653
To Owner:
Red Point Development, Inc.
8710 North Thornydale Road, # 120
Tucson, AZ 85742
Article 9. General Terms and Conditions.
9.1. Term. This Agreement shall become effective upon its execution by all the Parties and
the effective date of the resolution or action of the Town Council approving this Agreement (the
"Effective Date"). The term of this Agreement shall begin on the Effective Date and, unless
sooner terminated by the mutual consent of the Parties, shall automatically terminate and shall
thereafter be void for all purposes on the twentieth anniversary of the Effective Date. If the
Parties determine that a longer period is necessary for any reason, the term of this Agreement
may be extended by written agreement of the Parties. The Developer shall be entitled to
terminate this Agreement if the Town materially impairs the development entitlements on the
Property granted by this Agreement.
9.2. Waiver. No delay in exercising any right or remedy shall constitute a waiver of that right
or remedy, and no waiver by the Town or the Owner of the breach of any covenant of this
Agreement shall be construed as a waiver of any preceding or succeeding breach of the same or
any other covenant or condition of this Agreement.
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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9.3. Attornev's Fees. If any Party brings a lawsuit against any other Party to enforce any of
the terms, covenants or conditions of this Agreement, or by reason of any breach or default of
this Agreement, the prevailing Party shall be paid all reasonable costs and reasonable attorneys'
fees by the other Party, in an amount determined by the court and not by the jury. Nothing in the
use of the word "lawsuit" in the preceding sentence shall constitute a waiver of paragraph 5.4
above, requiring disputes to be resolved by binding arbitration.
9.4. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument. The signature pages from one or more counterparts may be removed from such
counterparts and such signature pages all attached to a single instrument so that the signatures of
all Parties may be physically attached to a single document.
9.5. Headings. The descriptive headings of this Agreement are intended to be used to assist
in interpreting the meaning and construction ofthe provisions ofthis Agreement.
9.6. Recitals. The Recitals set forth at the beginning of this Agreement are hereby
acknowledged, confirmed to be accurate and incorporated here by reference.
9.7. 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.
9.8. Further Acts. Each of the Parties shall execute and deliver all documents and perform all
acts as reasonably necessary, from time to time, to carry out the matter contemplated by this
Agreement. Without limiting the generality of the foregoing, the Town shall cooperate in good
faith and process promptly any requests and applications for plat or permit approvals or
revisions, and other necessary approvals relating to the development of the Property by the
Owner and its successors.
9.9. Future Effect.
9.9.1. Time Essence and Successors. Time is of the essence of this Agreement. All of
the provisions of this Agreement shall inure to the benefit of and be binding upon the
successors, assigns and legal representative of the Parties, except as provided in
paragraph 9.9.2 below. Notwithstanding the foregoing, to the extent permitted by law, the
Owner's rights under this Agreement as to all or any phase or portion of the Cascada Plan or
the Property may only be assigned by a written instrument, agreed to by all of the Parties and
recorded in the Official Records of Pima County, Arizona, expressly assigning such rights,
and no obligation of the Owner under this Agreement shall be binding upon anyone owning
any right, title or interest in the Property unless such obligation has been specifically
assumed in writing or unless otherwise required by law. The Town understands that the
Owner may create one or more entities or subsidiaries wholly owned or controlled by the
Owner for purposes of carrying out the development of the Property as contemplated in this
Agreement, and the Town's consent to the Owner's assignment of its rights under this
Agreement to such entities or subsidiaries shall not be withheld. In the event of a complete
assignment by Owner of all rights and obligations of Owner under this Agreement, or as to
any phase or portion of the Cascada Plan or the Property, Owner's liability under this
Agreement shall terminate, as to the phase or portion of the Property assigned, effective upon
{00002248.DOC / 71
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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the assumption of those liabilities by Owner's assignee, provided that the Town has approved
the assignment to such assignee, which approval shall not unreasonably be withheld.
9.9.2. Termination Upon Sale to End Purchaser or User. This Agreement shall terminate
without the execution or recordation of any further document or instrument as to any lot
which has been finally subdivided and individually (and not in "bulk") leased (for a period of
longer than one year) or sold to the end purchaser or user and thereupon such lot shall be
released from and no longer be subject to or burdened by the provisions of this Agreement.
9.10. No Partnership and Third Parties. It is not intended by this Agreement to, and nothing
contained in this Agreement shall, create any partnership, joint venture or other arrangement
between the Owner and the Town. No term or provision of this Agreement is intended to, or
shall be for the benefit of any person, firm, organization or corporation not a party to this
Agreement, and no such other person, firm, organization or corporation shall have any right or
cause of action under this Agreement.
9.11. Other Instruments. Each Party shall, promptly upon the request of the other, have
acknowledged and delivered to the other any and all further instruments and assurances
reasonably request or appropriate to evidence or give effect to the provisions of this Agreement.
9.12. Imposition of Duty bv Law. This Agreement does not relieve any Party of any
obligation or responsibility imposed upon it by law.
9.13. Entire Agreement. This Agreement constitutes the entire agreement between the Parties
pertaining to the subject matter of this Agreement. All prior and contemporaneous agreements,
representation and understanding of the Parties, oral or written, are hereby superseded and
merged in this Agreement.
9.14. Amendments to Agreement. No change or addition shall be made to this Agreement
except by a written amendment executed by the Parties. The Parties agree to cooperate and in
good faith pursue any amendments to this Agreement that are reasonably necessary to
accomplish the goals expressed in the Final Plats or Development Plans governing the Property
and Cascada Plan as amended by this Agreement. Within ten days after any amendment to this
Agreement, it shall be recorded in the office of the Pima County Recorder by and at the expense
of the Party requesting the amendment.
9.15. Names and Plans. The Owner shall be the sole owner of all names, titles, plans,
drawings, specifications, ideas, programs, ideas, designs, and work products of every nature at
any time developed, formulated or prepared by or at the instance of the Owner in connection
with the Property or any plans; provided, however, that in connection with any conveyance of
portions of the infrastructure as provided in this Agreement such rights pertaining to the portions
ofthe infrastructure so conveyed shall be assigned to the extent that such rights are assignable, to
the appropriate governmental authority.
9.16. Good Standing; Authority. The Owner represents and warrants to the Town that it is
duly formed and validly existing under the laws of Arizona and is authorized to do business in
the state of Arizona. The Town represents and warrants to the Owner that it is an Arizona
municipal corporation with authority to enter into this Agreement under applicable state laws.
Each Party represents and warrants that the individual executing this Agreement on its behalf is
authorized and empowered to bind the Party on whose behalf each such individual is signing.
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~~..",,~____-,......~.,,__..,,^,,_.__~._"" ."",__.M _~.,~""""~__
9.17. Severability. If any provision of this Agreement is declared void or unenforceable, it
shall be severed from the remainder of this Agreement, which shall otherwise remain in full
force and effect. If a law or court order prohibits or excuses the Town from undertaking any
contractual commitment to perform any act under this Agreement, this Agreement shall remain
in full force and effect, but the provision requiring the act shall be deemed to permit the Town to
act at its discretion, and if the Town fails to act, the Owner shall be entitled to terminate this
Agreement.
9.18. Governing Law. This Agreement is entered into in Arizona and shall be construed and
interpreted under the laws of Arizona, and the Parties agree that any litigation or arbitration shall
take place in Pima County, Arizona. Nothing in the use of the word "litigation" in the preceding
sentence shall constitute a waiver of paragraph 5.4 above, requiring disputes to be resolved by
binding arbitration.
9.19. Interpretation. This Agreement has been negotiated by the Town and the Owner, and no
Party shall be deemed to have drafted this Agreement for purposes of construing any portion of
this Agreement for or against any Party.
9.20. Recordation. The Town shall record this Agreement in its entirety in the office of the
Pima County Recorder no later than ten days after it has been executed by the Town and the
Owner.
9.21. No Owner Representations. Except as specifically set forth in this Agreement, nothing
contained in this Agreement shall be deemed to obligate the Town or the Owner to complete any
part or all of the development of the Property.
9.22. Approval. If any Party is required pursuant to this Agreement to give its prior written
approval, consent or permission, such approval, consent or permission shall not be unreasonably
withheld or delayed.
9.23. Force Maieure. If any Party shall be unable to observe or perform any covenant or
condition of this Agreement by reason of "force majeure," then the failure to observe or perform
such covenant or condition shall not constitute a default under this Agreement so long as such
Party shall use its best effort to remedy with all reasonable dispatch the event or condition
causing such inability and such event or condition can be cured within a reasonable amount of
time. "Force majeure," as used in this paragraph, means any condition or event not reasonably
within the control of such Party, including without limitation, "acts of God," strikes, lock-outs,
or other disturbances of employer/employee relations; acts of public enemies; orders or restraints
of any kind of government of the United States or any state thereof or any of their departments,
agencies, or officials, or of any civil or military authority; insurrection; civil disturbances; riots;
epidemics; landslides; lightning; earthquakes; subsidence; fires; hurricanes; storms; droughts;
floods; arrests, restraints of government and of people; explosions; and partial or entire failure of
utilities. Failure to settle strikes, lock-outs and other disturbances of employer/employee
relations or to settle legal or administrative proceedings by acceding to the demands of the
opposing Party or Parties, in either case when such course is in the judgment of and unfavorable
to a Party shall not constitute failure to use its best efforts to remedy such a condition.
9.24. Conflict of Interest. This Agreement is subject to A.R.S. S 38-511, which provides for
cancellation of contracts in certain instances involving conflicts of interest.
{00002248.DOC /7 \
5)
LJ/+7f2007
CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
- 14 -
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last date set forth
below their respective signatures.
TOWN:
OWNER:
THE TOWN OF MARAN A, an Arizona
municipal corporation
RED POilU DEVELOPMENT, INC., em L'\rizona
corporation
By:
Ed Honea, Mayor
Date:
By:
[Signer's name & Title]
Date:
ATTEST:
FIDELITY NATIONAL TITLE AGENCY, INC, an
Arizona corporation, as Trustee under Trust
No. -W+8960.182 and not in its corporate
capacity
Jocelyn C. Bronson, Clerk
ApPROVED AS TO FORM:
Frank Cassidy, Town Attorney
PACIFIC INTERNATIONAL PROPERTIES,
L.L.P., an L'\rizona limited liability
partnership
By:
[Signer's name & Title]
Date:
STATE OF ARIZONA)
ss
County of Pima )
The foregoing instrument was acknowledged before me on by [Name ],
fHtle1 . the of RED POINT
DEVELOPMENTFIDELITY NATIONAL TITLE AGENCY, INC~, an Arizona corporation, on behalf of the
corporationas Trustee under Trust No. 60.182 and not in its comorate caoacitv.
My commission expires:
Notary Public
{00002248.DOC /7\
5J
~1 /1-++2007
CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
- 15 -
STATE OF "^LRIZONA)
ss
COHnt)' of Pima )
The forcgoing instmmcnt v.as aolmo'.vlcdgcd before me on by [Name], [Title] of FIDELITY
NATImJAL TITLE "^.CENCY, INC, an "\rizona corporation, as Tmstce undcr Tmst No. 10789 and
not in its corporate capacity.
My commission c)(pires:
Notary Public
STATE OF "^.RIZONA)
ss
COHnt)' of Pima )
Thc f-oregoing instrumcnt '.vas ackno'.vledged before mc on by [Name], [Titlc] of PACIFIC
INTEIlNfLTIONAL PROPERTIES, L.L.P., an Arizona limited liabilit)' partnership, on bchalf of thc
partncrship.
My commission expircs:
Notary Public
{00002248.DOC / 7~
5)
LI/++,I2007
CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
16
CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
TOWN OF MARANA, ARIZONA
THIS DEVELOPMENT AGREEMENT ("Agreement") is made by and between the TOWN OF
MARANA, an Arizona municipal corporation (the "Town") and FIDELITY NATIONAL TITLE
AGENCY, INC, an Arizona corporation, as Trustee under Trust No. 60,182 and not in its corporate
capacity (the "Owner"). The Town and the Owner are collectively referred to in this Agreement
as the "Parties," and each is sometimes individually referred to as a "Party."
RECITALS
A. The Owner owns or controls approximately 1,476 acres of land located in the Town
limits, as depicted on the map attached as Exhibit "A" and legally described in Exhibit "B" (the
"Property"). The Property and its development were included in and subject to the provisions
of the Acacia Hills Specific Plan, Marana Ordinance No. 88.16, adopted July 5, 1988; or the
Northgate Specific Plan, Marana Ordinance No. 91.09, adopted May 7, 1991 (collectively, the
"Old Specific Plans"). The Old Specific Plans would have permitted the development of more
than 10,000 units on the Property.
B. The portion of the Property covered by the Northgate Specific Plan is also the subject of
the Northgate Development Agreement recorded in the Pima County Recorder's Office in
Docket 9038, at Pages 353-381 (the "Northgate Development Agreement").
C. The Property is included in the various phases of development set forth in the Cascada
Specific Plan (the "Cascada Plan"), which was adopted by the Town on December 5, 2006 by
Marana Ordinance No. 2006.23 to modify, amend and supersede the Old Specific Plans as to
the Property. The Cascada Plan effectively downzones the Property and substantially reduces
the number of units to be developed within the Property to the densities proposed in the
Cascada Plan instead of the more than 10,000 units permitted under the Old Specific Plans.
D. With the December 5, 2006 approval and adoption of the Cascada Plan and with the
approval of this Agreement, the Old Specific Plans, including any and all related development
agreements, shall be modified, amended and superseded only as to the Property, and the
Property shall be developed in phases pursuant to the Cascada Plan, as clarified and
supplemented by this Development Agreement.
E. The Cascada Plan also includes numerous special design features and public amenities
not included in the Old Specific Plans, including without limitation, special street standards
and an integrated system of trails and several hundred acres of open space featuring, among
other things, over 220 acres of natural undisturbed open space and wildlife habitat;
approximately 100 acres of drainage ways, including undisturbed drainage bottom and wildlife
corridors; more than 360 acres of open space within the area designated as Parcel 5 in the
Cascada Plan; and approximately 67.4 acres designated as recreational open space to be
dedicated to and maintained by the Town and approximately 13 acres of recreational open
{00002248.DOC / 7}
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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. .,~".,""~_,,,~~__......,...~<<,,_,..,,_,.".. ' "~_.m.'__,"__
space to be transferred and maintained pursuant to paragraph 2.9 of this Agreement, which will
include multi-purpose recreation facilities and on-site storm water retention/detention.
F. Pursuant to the Old Specific Plans, the Owner has made substantial improvements and
commitments and, pursuant to the Cascada Plan and this Agreement, will continue to make a
substantial commitment of resources for public and private improvements during each phase of
the development of the Property, including, without limitation, roadways, parks, public trails,
open space and wildlife corridors, an open space management plan, schools, sewer and water
service, other utilities, and similar or related improvements.
G. The Town and the Owner further acknowledge that the development of each phase of
the Property, pursuant to the Cascada Plan and this Agreement, will result in planning and
economic benefits to the Town and its residents.
H. The Northgate Development Agreement expressly provides, subject to specific
limitations, that after the date of the development agreements applicable under the Old Specific
Plans (May 7, 1991) "the Town shall not impose or enact any additional conditions, exactions,
dedications, development or impact fees, rules or regulations applicable to or governing the
development of the Property." This language is referred to in this Agreement as the "Northgate
Vesting Language."
I. The Town questions the validity of the Northgate Vesting Language for reasons
including (i) the Owner's failure to undertake substantial development in reliance on the Old
Specific Plans and the Northgate Development Agreement within a reasonable time after their
adoption, (ii) the absence of a reasonable time limitation on the Northgate Vesting Language,
resulting in an illegal attempt to restrict future Councils' legislative authority, (iii) the absence
of benefit (consideration) to the Town, and (iv) special treatment of the Owner with respect to
development impact fees in violation of A.R.S. ~ 9-463.05, which requires that all such fees be
"assessed in a non-discriminatory manner."
J. The Owner contends that it has substantially changed its position and has made
substantial commitments and invested substantial resources in reliance on the Old Specific
Plans and the Northgate Development Agreement and further contends that the Northgate
Vesting Language is legally binding, enforceable and effective.
K. The Parties desire to set aside their disagreement about the Northgate Vesting Language
by superseding and replacing the Northgate Development Agreement as to the Property with
this Agreement.
L. The Town has determined that it is in the best interests of the Town and its residents to
have the Property developed pursuant to the Cascada Plan and its reduced densities and special
features, and subject to the substantial additional conditions, exactions, and commitments
contained in the Cascada Plan, and to the extent provided for in this Agreement.
M. The Town is currently in the design process on a project to construct a new Interstate 10
interchange at Twin Peaks Road (the "Twin Peaks TI Project"), and anticipates that
construction will begin in April 2008.
N. The plans for the Twin Peaks TI Project include fully reconstructed roadways for
Camino de Manana and Linda Vista Road adjacent to and in the vicinity of the Property. The
fully reconstructed Camino de Manana and Linda Vista Road improvements as they would be
{00002248.DOC 17}
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
- 2 -
constructed as part of the Twin Peaks TI Project are referred to in this Agreement as the
"CdMIL V Improvements."
O. To facilitate the timely development of the Cascada Plan, the Owner desires to construct
limited portions of the CdM/L V Improvements before construction of the Twin Peaks TI
Project begins.
P. The Parties desire to allow the Owner the flexibility to construct portions of the
CdMlL V Improvements as long as the Owner's construction does not unreasonably interfere
with or delay the Twin Peaks TI Project.
Q. Certain portions of the Property are designated as open space under the Cascada Plan
based on restrictions under a conservation easement in favor of the federal government. If the
federal government waives or adjusts the conservation easement restrictions, the Owner plans
to file an application to amend the Cascada Plan to allow affected portions of the conservation
easement to be developed, and the Owner acknowledges that any such amendment to the
Cascada Plan shall be subject to approval by the Town Council.
R. This Agreement is consistent with the portions of the Town's General Plan applicable to
the Property.
S. The Parties understand and acknowledge that this Agreement is a "Development
Agreement" within the meaning and pursuant to the terms of A.R.S. S 9-500.05.
AGREEMENT
Now, THEREFORE, in consideration of the foregoing premises and the mutual promises
and agreements set forth in this Agreement, the Parties hereby agree as follows:
Article 1. Effect.
1.1. The Northgate Development Agreement. As of the effective date of this Agreement, the
Northgate Development Agreement is superseded as to the Property and replaced by this
Agreement.
1.2. Geographic Effect. The Cascada Plan and this Agreement shall not have any effect on
land covered by the Old Specific Plans but not included within the Property except as expressly
permitted by this Agreement or an amendment to the Cascada Plan.
Article 2. Development of the Property.
2.1. General. The development of the Property shall be governed by the underlying zoning or
land use designation and the standards provided for in the Cascada Plan, including the Owner's
design and development standards and guidelines, as clarified and supplemented by this
Agreement. The Marana Development Code, including the written rules, regulations, substantive
procedures, and policies relating to development of land, adopted or approved by the Mayor and
Council (collectively the "Marana Development Code") in effect on the effective date of the
Cascada Plan shall apply to the extent not covered by the Cascada Plan or this Agreement. For
purposes of this Agreement, the underlying zoning or land use designation ("Land Use
Designation") shall mean full development, exclusive of voluntary limitations or restrictions,
under the controlling Land Use Designation included in the Cascada Plan, and if not so covered,
under the Marana Development Code.
{00002248 DOC 17}
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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2.2. Specific Plan. The Cascada Plan and its underlying Land Use Designations, as clarified
and supplemented by this Agreement, are hereby incorporated into the Town's General Plan for
all purposes. Development of the Property shall be in accordance with the Cascada Plan, as may
be amended from time to time. The Owner is authorized to implement the uses, densities, and
intensities set forth in the Cascada Plan, and will be accorded all approvals necessary to permit
the Owner to implement the Cascada Plan, subject to the Town's review and approvals of
appropriate and required applications, block and subdivision plats, development or site plans and
applicable development standards and specifications. The Town and the Owner acknowledge
that adjustments to the Cascada Plan, including the reasonable waiver or adjustment of
conditions or limitations on the uses or densities included within the Cascada Plan, may be
necessary from time to time to reflect actual roadway alignments, changes in market conditions,
development financing, and/or to meet the new requirements of one or more of the potential
users or builders of any part of the Property. The Parties shall cooperate in good faith to agree
upon and use reasonable best efforts to process any adjustments to the Cascada Plan. Consistent
with the administrative procedure provided for in the Town's existing regulations and the terms
of this Agreement and subject to the limitations set forth in paragraph 4.3 below, the Town
agrees to approve or issue such permits, plans, specifications and/or plats of or for the Property
as may be requested by the Owner in order to implement, and which are reasonably consistent
with, the underlying Land Use Designations in the Cascada Plan. The Town's failure to timely
approve any permits, plans, specifications or plats, or other matters necessary to permit the
Owner or any user or builder within the Property to reasonably implement the Cascada Plan,
shall be in breach of this Agreement. If and when the Parties find that changes or adjustments are
necessary or appropriate to be made to the Cascada Plan, they shall, unless otherwise required by
law, effectuate such changes or adjustments through administrative amendments approved by the
Town's Planning Director, which after execution, shall be attached as an addendum to and shall
become part of the Cascada Plan, and may be further changed and adjusted from time to time as
necessary, with the approval of the Town and the Owner as provided in this paragraph. Unless
otherwise required by law, no such administrative adjustment shall require prior notice or
hearing. Notwithstanding the foregoing, the following matters shall not be considered
administrative changes or amendments, but shall be considered substantive amendments which
shall be reviewed by the Planning and Zoning Commission and approved by the Town Council:
2.2.1. Alteration of the permitted uses of the Property;
2.2.2. Increase in the density or intensity of use or number of dwelling units, except as
otherwise allowed in connection with the transfer of specific density and intensity
requirements between individual parcels as provided in the Cascada Plan and this
Agreement;
2.2.3. Increase in the maximum height and size of permitted buildings (except as allowed
in connection with the transfer of specific building height and size limitations between
individual parcels within the Property as provided in the Cascada Plan and this Agreement);
and,
2.2.4. Deletion of a requirement for the reservation or dedication of land for public
purposes, except for minor boundary adjustments approved by the Planning Director.
2.3. Development Review. Each phase of the Property shall be developed in a manner
consistent with the Development Regulations and the Cascada Plan, as clarified by this
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
- 4-
Agreement. The Cascada Plan establishes the basic land uses, the densities and intensities of
such uses, whereas this Agreement quantifies the exactions and the development regulations
applicable to the development of the Property. Upon the Owner's compliance with the applicable
development review and approval procedures and the substantive requirements of the
development regulations that now apply to the Property, the Town agrees to timely process all
submittals for any portion of the Property and to timely approve such block plats, any
subdivision or other plats and any building or other permit applications consistent with the
Cascada Plan and applicable development regulations and to timely issue such permits or similar
approvals for the Property.
2.4. Zoning and Plat Conditions. The Owner agrees to fulfill all related conditions of the
Cascada Plan and other applicable development regulations. The Cascada Plan, as clarified and
supplemented by this Agreement, supersedes the existing subdivision plats within the Property.
2.5. Abandonment of Previously Dedicated Rights-of-Way and Easements. Subject to
compliance with any applicable statutory requirements (for example, A.R.S. S 9-407 or A.R.S.
S 28-7203), any road or other dedication or easement in favor of the Town made pursuant to the
Old Specific Plans or located on the Property or contained in or conveyed pursuant to any deed
or subdivision plat within the Property shall be deemed abandoned effective upon the
realignment of any such road or other dedication or easement or upon the recording of a new or
amended plat covering the land area with the particular road or other dedication or easement.
2.6. ArchaeologicallHistoric Resources. Development of each phase of the Property shall
meet all Town requirements set forth in Title 2 and Title 20 of the Marana Development Code
related to Archeological and Historic Resources.
2.7. Residential Design Guidelines. All residential construction on any portion of the
Property shall be constructed in accordance with the design standards and guidelines contained
in the Cascada Plan. The Parties acknowledge and agree that the residential guidelines contained
in the Cascada Plan fall within the exception for specific plan-tailored design standards found at
Section 8.06.02(B) of the Marana Land Development Code; consequently, the Town's residential
guidelines as adopted in Marana Ordinance No. 2005.18 shall not apply to the Property.
2.8. No Manufactured Housing. No manufactured housing shall be permitted on any portion
of the Property.
2.9. Management of Open Space. Owner shall cause to be prepared, at Owner's cost, a plan
for the proper management and maintenance of the open space areas included in the Cascada
Plan. One or more homeowners associations established by declarations of restrictive covenants
recorded over all or part of the Property or a government or conservation entity the Town
reasonably determines is willing and able to permanently maintain the undisturbed natural areas
as required by the Cascada Plan and this Agreement shall be given:
2.9.1. Enforcement authority over and control of all undisturbed natural areas set aside
and maintained as required by the Cascada Plan and this Agreement; and
2.9.2. Permanent ownership of all undisturbed natural areas set aside and maintained as
required by the Cascada Plan and this Agreement that are located outside the boundaries of
individually-owned residential lots.
2.10. Alignment of Roadways and Adjustments. The Parties acknowledge that the locations
and alignments of major roadways set forth in the Cascada Plan are based on current conceptual
{00002248.DOC!7} 5/1/20074:49 PM
CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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_.._..-.~,~~..~"...."._._.,....._~ . '-~'-'-"~""'~---
designs and traffic projections. The actual design and improvement of the major roadways within
the Property, including Camino de Manana and Linda Vista, will necessarily require adjustments
from existing roadway alignments and corresponding parcel boundaries. Upon completion of the
design and actual construction of the major roadways within the Property, the boundaries of the
parcels established by the Cascada Plan shall be adjusted to correspond to the actual alignment of
the roadways, as constructed, through the submittal of a revised plat or similar submittal
permitted by paragraph 2.11 of this Agreement. In such submittal, Owner shall have the right to
adjust the permitted uses and densities of land located along the actual roadway alignment to
preserve the overall percentage or ratio of each such use and density classification within the
Property permitted under the Cascada Plan.
2.11. Revised Plat. The Owner may submit and the Town shall approve revised block plats,
subdivision plats, development plans or similar submittals for portions of the Property which
may vary from the Cascada Plan, provided that the revisions in any such submittal are
substantially consistent with the general development concept and underlying Land Use
Designations contained in the Cascada Plan, or the provisions of this Agreement, without the
necessity of amending the Cascada Plan or this Agreement. The determination of consistency
shall be made by the Town's Planning Director, and appeals may be taken to the Town's board
of adjustment in a manner consistent with other zoning interpretation appeals.
2.12. Timing. The Town and Owner acknowledge the necessity of prompt review by the
Town of all plans, applications, and other materials submitted by the Owner ("Submitted
Materials") pursuant to the Cascada Plan, this Agreement, or any zoning, permit, or other similar
procedure pertaining to the development of the Property. The Town agrees to use its best efforts
to accomplish such prompt and expeditious review of all such Submitted Materials whenever
possible.
Article 3. Utilities and On-Site Infrastructure.
3 .1. Water Utilities.
3.1.1. The Owner will enter into a standard form Water Service Agreement with the
Town for potable (and non-potable should Owner so agree) systems which sets forth the
various agreements of the Parties relating to, among other things, the interconnection and
main extension from the existing water system, and the development, construction,
dedication, ownership, and design of the water system.
3.1.2. The Owner shall at its own cost design and construct and have in actual operation
and service the following water infrastructure improvements (for purposes of this paragraph,
the term "EDU" means "equivalent demand unit"; that is, the amount of water used by a
typical single-family detached home, which the Town currently estimates to be 335 gallons
per day):
3.1.2.1. A Z-Zone booster capacity upgrade of 780 gallons per minute on or before
connection of uses on the Property totaling 612 EDUs.
3.1.2.2. An 865 gallon-per-minute well (generally referred to as "Well 2") on or
before connection of uses on the Property totaling 700 EDUs.
3.1.2.3. An 865 gallon-per-minute well (generally referred to as "Well 3") on or
before connection of uses on the Property totaling 1,860 EDUs.
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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""-~",",~-,~,,<>~,,,,~,,"<-"'.'._-'-"".'-"
3.1.2.4. A 640,000 gallon storage capacity upgrade (reservoir) on or before
connection of uses on the Property totaling 2,197 EDUs; provided, however, that if
construction of a regional storage facility adequate to serve the Property begins before the
Owner begins construction of this 640,000-gallon reservoir, the Owner shall contribute
the estimated cost of the 640,000-gallon reservoir toward the construction of the regional
storage facility on or before connection of uses on the Property totaling 2,197 EDUs.
3.1.3. The Town's monthly base water service fee for one-inch residential meters, which
are being installed to serve homes on the Property instead of %" x %" meters to
accommodate fire suppression facilities, shall be the same as the Town's monthly base water
service fee for %" x %" meters.
3.2. Fire Protection. Before a certificate of occupancy is issued for any dwelling unit on the
Property, the Owner shall have completed or shall provide evidence to the Town that Owner has
made a diligent effort to complete the process of having the Property annexed into the Northwest
Fire District.
3.3. Compliance with State and Federal Laws and Regulations. Owner expressly
acknowledges that no approval, permit or authorization of the Town authorizes the Owner to
violate any applicable federal or state laws or regulations, or relieves the Owner from the
independent responsibility to ensure compliance with all applicable federal and state laws and
regulations, including but not limited to the Endangered Species Act and Clean Water Act.
Article 4. Owner's Contributions for Roadway Improvements,
Public Schools, and Public Parks and Trails
4.1. Cascada Plan Roadways. The Owner shall construct all interior subdivision streets and
roads within the Property as set forth in the Cascada Plan in connection with the development of
the various phases of the Property under the Cascada Plan. Owner may choose to utilize the
Town's public street standards even on streets initially shown as private in the Cascada Plan
where Owner and Town agree that the street will be dedicated to the Town.
4.2. Maior Routes Right-of-Way Dedications. The Owner shall dedicate all rights-of-way
needed from the Property for any portion of the Twin Peaks TI Project (including without
limitation the CdM/L V Improvements), Camino de Manana and Lambert Lane, as shown on the
Town's current major streets and routes plan. The dedication shall occur upon the earlier of the
following:
4.2.1. When the Town requests the right-of-way (generally upon completion of
90% plans for the roadway that is the subject ofthe requested portion of right-of-way); or
4.2.2. Upon recordation of a subdivision plat for property that includes or is adjacent to
the right-of-way.
4.3. Concurrency of On site Development and the Twin Peaks TI Proiect. The Owner shall be
permitted to construct improvements on the Property before and during the construction of the
Twin Peaks TI Project, provided that construction activities on the Property and on adjacent
roadways shall not unreasonably interfere with the construction of the Twin Peaks TI Project.
4.4. Owner's Construction of Portions of the CdM/L V Improvements. The Owner shall be
permitted to construct portions of the CdM/L V Improvements (in conformance with the Town-
approved engineering plans for the CdM/L V Improvements) to the extent they are necessary for
{00002248.DOC 17}
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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"_'...__;,;.,..,.....=~"'_,;.,~<"...,m~.__'..".._ ....__._,~_
development of the Cascada Plan so long as the Owner's construction begins not later than eight
months before and is contractually obligated to finish not later than the date of the then-
anticipated start of construction of the Twin Peaks Tl Project. Owner shall receive development
impact fee credits (see Article 6 below) against the Marana South Transportation Development
Impact Fee for its actual cost to construct portions of the CdMlL V Improvements.
4.5. Public Parks and Public Trails. The Property is subject to the Town-Wide Park
Development Impact Fee adopted by Ordinance No. 2005.11, as amended from time to time (the
"Park Impact Fee"). Owner shall receive development impact fee credits (see Article 6 below)
against the Park Impact Fee for all land dedicated for public parks or public access trails,
whether by the grant of fee title or a public access easement, and all costs incurred by Owner in
the construction or improvement of the regional park and other public access parks or trails
included in the Cascada Plan.
4.6. School Land. Pursuant to separate Agreement with the Marana Unified School District,
Owner will contribute a School Improvement Contribution Fee of $1,200 per residential lot,
payable to the Marana Unified School District. The School Improvement Contribution Fee shall
be due and payable at the issuance ofthe building permit for each residential unit.
Article 5. Cooperation and Alternative Dispute Resolution.
5.1. Appointment of Representatives. To further the commitment of the Parties to cooperate
in the progress of the Development, the Town and the Owner each shall designate and appoint a
representative to act as a liaison between the Town and its various departments and the Owner.
The initial representative for the Town (the "Town Representative") shall be the Planning
Director, and the initial representative for the Owner shall be Larry Kreis or a replacement to be
selected by the Owner. The representatives shall be available at all reasonable times to discuss
and review the performance of the Parties to this Agreement and the development of the
Property .
5.2. Default: Remedies. If either Party defaults (the "Defaulting Party") with respect to any
of that Party's obligations under this Agreement, the other Party (the "Non-Defaulting Party")
shall be entitled to give written notice in the manner prescribed in Article 8 to the Defaulting
Party, which notice shall state the nature of the default claimed and make demand that such
default be corrected. The Defaulting Party shall then have (i) twenty days from the date of the
notice within which to correct the default if it can reasonably be corrected by the payment of
money, or (ii) thirty days from the date of the notice to cure the default if action other than the
payment of money is reasonably required, or if the non-monetary default cannot reasonably be
cured within sixty days, then such longer period as may be reasonably required, provided and so
long as the cure is promptly commenced within sixty days and thereafter diligently prosecuted to
completion. If any default is not cured within the applicable time period set forth in this
paragraph, then the Non-Defaulting Party shall be entitled to begin the mediation and arbitration
proceedings set forth in this Article. The Parties agree that due to the size, nature and scope of
the Development, and due to the fact that it may not be practical or possible to restore the
Property to its condition prior to Owner's development and improvement work, once
implementation of this Agreement has begun, money damages and remedies at law will likely be
inadequate and that specific performance will likely be appropriate for the enforcement of this
Agreement. This paragraph shall not limit any contract or other rights, remedies, or causes of
action that either Party may have at law or in equity.
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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5.3. Mediation. If there is a dispute under this Agreement which the Parties cannot resolve
between themselves, the Parties agree that there shall be a forty-five day moratorium on
arbitration during which time the Parties agree to attempt to settle the dispute by nonbinding
mediation before commencement of arbitration. The mediation shall be held under the
commercial mediation rules of the American Arbitration Association. The matter in dispute shall
be submitted to a mediator mutually selected by Owner and the Town. If the Parties cannot agree
upon the selection of a mediator within seven days, then within three days thereafter the Town
and the Owner shall request the presiding judge of the Superior Court in and for the County of
Pima, State of Arizona, to appoint an independent mediator. The mediator selected shall have at
least five years' experience in mediating or arbitrating disputes relating to real estate
development. The cost of any such mediation shall be divided equally between the Town and the
Owner. The results of the mediation shall be nonbinding on the Parties, and any Party shall be
free to initiate arbitration after the moratorium.
5.4. Arbitration. After mediation, as provided for in this Article, any dispute, controversy,
claim or cause of action arising out of or relating to this Agreement shall be settled by
submission of the matter by both Parties to binding arbitration in accordance with the rules of the
American Arbitration Association and the Arizona Uniform Arbitration Act, A.R.S. ~ 12-501 et
seq., and judgment upon the award rendered by the arbitrator(s) may be entered in a court having
jurisdiction.
Article 6. Future Development Impact Fees
6.1. Credits. If the Town adopts a development impact fee for the same infrastructure for
which the Owner has contributed land or made improvements or paid a voluntary fee pursuant to
this Agreement, the Owner shall be entitled to a credit for such contributions as set forth in
A.R.S. ~ 9-463.05.
6.2. Value of Dedicated Property. The portions of the Property dedicated for public use
("Dedicated Property") and for which Owner is entitled to receive a development impact fee
credit shall be valued based on property values used to establish the applicable development
impact fee. The Marana South Transportation Development Impact Fee was established without
including any anticipated costs for right-of-way acquisition. Consequently, to the extent
dedication of right-of-way could be properly required for development of the Cascada Plan, no
development impact fee credit will be granted for right-of-way dedicated for improvements
funded by the Marana South Transportation Development Impact Fee unless it is amended to
include right-of-way costs or unless the Town adopts some other roadway development impact
fee against which the right-of-way may be creditable. Nothing in this paragraph waives the
Owner's rights conferred by A.R.S. ~ 9-500.12. The credit shall be based on the fair market
value ofthe dedicated land at the time of its dedication.
Article 7. Protected Development Rights
7.1. General. To ensure reasonable certainty, stability and fairness to the Owner and the
Town for a reasonable period of time, the land use designations, uses, and densities that now
apply to the Property, as amended by this Agreement, shall remain in effect and shall not be
changed without the consent of the Owner as follows:
7.1.1. For a period of seven years after the effective date of this Agreement.
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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."'~'i_~_,",~'~'''___'~'~~>._'-'-''''-~~"--'''~~
7.1.2. For an additional seven-year period if within the seven-year period referenced in
paragraph 7.1.1 above the Owner has accomplished all of the following:
7.1.2.1. Construction of the outfall sewer line intended to serve the development of
the Cascada Plan south of Lambert Lane;
7.1.2.2. Construction of a reservoir addition, approximately 640,000 gallons in size,
augmenting the existing Hartman Vistas Reservoir;
7.1.2.3. Construction of a l6-inch water main intended to serve the development of
the Cascada Plan; and
7.1.2.4. Obtaining active permits and undertaking grading, paving and other
infrastructure improvements, including roadways, ultimately to be dedicated to the
public.
7.1.3. For an additional six-year period if by the end of the seven-year period referenced
in paragraph 7.1.2 above the Owner has accomplished the following:
7.1.3.1. Construction of a second 16-inch well site to be dedicated to the Town (or
other applicable water company); and
7.1.3.2. Further engaged in grading, paving sewer and water installations in
furtherance of the development specified in the Cascada Plan and infrastructure
improvements required by the Town of Mar ana.
7.2. Market Conditions and Unforeseen Events. To the extent market conditions or other
unforeseen events impede the completion of development within 21 years, and to the extent there
is not an over-riding public need to modify the Cascada Plan, the Town and the Owner agree to
resolve, in good faith, the balancing of rights and further obligations against the public good in
order to fulfill the objectives of the Cascada Plan.
Article 8. Notices and Filings.
8.1. Manner of Serving. All notices, filings, consents, approvals and other communications
provided for in or given in connection with this Agreement shall be validly given, filed, made,
transmitted or served if in writing and delivered personally or sent by registered or certified
United States mail, postage prepaid, if to (or to such other addresses as any Party may from time
to time designate in writing and deliver in a like manner):
To the Town: Town Manager
Town of Marana
Marana Municipal Complex
11555 West Civic Center Drive, A3
Marana, AZ 85653
To Owner:
Red Point Development, Inc.
8710 North Thornydale Road, #120
Tucson, AZ 85742
Article 9. General Terms and Conditions.
9.1. Term. This Agreement shall become effective upon its execution by all the Parties and
the effective date of the resolution or action of the Town Council approving this Agreement (the
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"Effective Date"). The term of this Agreement shall begin on the Effective Date and, unless
sooner terminated by the mutual consent of the Parties, shall automatically terminate and shall
thereafter be void for all purposes on the twentieth anniversary of the Effective Date. If the
Parties determine that a longer period is necessary for any reason, the term of this Agreement
may be extended by written agreement of the Parties. The Developer shall be entitled to
terminate this Agreement if the Town materially impairs the development entitlements on the
Property granted by this Agreement.
9.2. Waiver. No delay in exercising any right or remedy shall constitute a waiver of that right
or remedy, and no waiver by the Town or the Owner of the breach of any covenant of this
Agreement shall be construed as a waiver of any preceding or succeeding breach of the same or
any other covenant or condition of this Agreement.
9.3. Attornev's Fees. If any Party brings a lawsuit against any other Party to enforce any of
the terms, covenants or conditions of this Agreement, or by reason of any breach or default of
this Agreement, the prevailing Party shall be paid all reasonable costs and reasonable attorneys'
fees by the other Party, in an amount determined by the court and not by the jury. Nothing in the
use of the word "lawsuit" in the preceding sentence shall constitute a waiver of paragraph 5.4
above, requiring disputes to be resolved by binding arbitration.
9.4. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument. The signature pages from one or more counterparts may be removed from such
counterparts and such signature pages all attached to a single instrument so that the signatures of
all Parties may be physically attached to a single document.
9.5. Headings. The descriptive headings of this Agreement are intended to be used to assist
in interpreting the meaning and construction of the provisions ofthis Agreement.
9.6. Recitals. The Recitals set forth at the beginning of this Agreement are hereby
acknowledged, confirmed to be accurate and incorporated here by reference.
9.7. 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.
9.8. Further Acts. Each of the Parties shall execute and deliver all documents and perform all
acts as reasonably necessary, from time to time, to carry out the matter contemplated by this
Agreement. Without limiting the generality of the foregoing, the Town shall cooperate in good
faith and process promptly any requests and applications for plat or permit approvals or
revisions, and other necessary approvals relating to the development of the Property by the
Owner and its successors.
9.9. Future Effect.
9.9.1. Time Essence and Successors. Time is of the essence of this Agreement. All of
the provisions of this Agreement shall inure to the benefit of and be binding upon the
successors, assigns and legal representative of the Parties, except as provided in
paragraph 9.9.2 below. Notwithstanding the foregoing, to the extent permitted by law, the
Owner's rights under this Agreement as to all or any phase or portion of the Cascada Plan or
the Property may only be assigned by a written instrument, agreed to by all of the Parties and
recorded in the Official Records of Pima County, Arizona, expressly assigning such rights,
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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and no obligation of the Owner under this Agreement shall be binding upon anyone owning
any right, title or interest in the Property unless such obligation has been specifically
assumed in writing or unless otherwise required by law. The Town understands that the
Owner may create one or more entities or subsidiaries wholly owned or controlled by the
Owner for purposes of carrying out the development of the Property as contemplated in this
Agreement, and the Town's consent to the Owner's assignment of its rights under this
Agreement to such entities or subsidiaries shall not be withheld. In the event of a complete
assignment by Owner of all rights and obligations of Owner under this Agreement, or as to
any phase or portion of the Cascada Plan or the Property, Owner's liability under this
Agreement shall terminate, as to the phase or portion of the Property assigned, effective upon
the assumption of those liabilities by Owner's assignee, provided that the Town has approved
the assignment to such assignee, which approval shall not unreasonably be withheld.
9.9.2. Termination Upon Sale to End Purchaser or User. This Agreement shall terminate
without the execution or recordation of any further document or instrument as to any lot
which has been finally subdivided and individually (and not in "bulk") leased (for a period of
longer than one year) or sold to the end purchaser or user and thereupon such lot shall be
released from and no longer be subject to or burdened by the provisions ofthis Agreement.
9.10. No Partnership and Third Parties. It is not intended by this Agreement to, and nothing
contained in this Agreement shall, create any partnership, joint venture or other arrangement
between the Owner and the Town. No term or provision of this Agreement is intended to, or
shall be for the benefit of any person, firm, organization or corporation not a party to this
Agreement, and no such other person, firm, organization or corporation shall have any right or
cause of action under this Agreement.
9.11. Other Instruments. Each Party shall, promptly upon the request of the other, have
acknowledged and delivered to the other any and all further instruments and assurances
reasonably request or appropriate to evidence or give effect to the provisions of this Agreement.
9.12. Imposition of Duty by Law. This Agreement does not relieve any Party of any
obligation or responsibility imposed upon it by law.
9.13. Entire Agreement. This Agreement constitutes the entire agreement between the Parties
pertaining to the subject matter of this Agreement. All prior and contemporaneous agreements,
representation and understanding of the Parties, oral or written, are hereby superseded and
merged in this Agreement.
9.14. Amendments to Agreement. No change or addition shall be made to this Agreement
except by a written amendment executed by the Parties. The Parties agree to cooperate and in
good faith pursue any amendments to this Agreement that are reasonably necessary to
accomplish the goals expressed in the Final Plats or Development Plans governing the Property
and Cascada Plan as amended by this Agreement. Within ten days after any amendment to this
Agreement, it shall be recorded in the office of the Pima County Recorder by and at the expense
of the Party requesting the amendment.
9.15. Names and Plans. The Owner shall be the sole owner of all names, titles, plans,
drawings, specifications, ideas, programs, ideas, designs, and work products of every nature at
any time developed, formulated or prepared by or at the instance of the Owner in connection
with the Property or any plans; provided, however, that in connection with any conveyance of
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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portions of the infrastructure as provided in this Agreement such rights pertaining to the portions
of the infrastructure so conveyed shall be assigned to the extent that such rights are assignable, to
the appropriate governmental authority.
9.16. Good Standing: Authority. The Owner represents and warrants to the Town that it is
duly formed and validly existing under the laws of Arizona and is authorized to do business in
the state of Arizona. The Town represents and warrants to the Owner that it is an Arizona
municipal corporation with authority to enter into this Agreement under applicable state laws.
Each Party represents and warrants that the individual executing this Agreement on its behalf is
authorized and empowered to bind the Party on whose behalf each such individual is signing.
9.17. Severability. If any provision of this Agreement is declared void or unenforceable, it
shall be severed from the remainder of this Agreement, which shall otherwise remain in full
force and effect. If a law or court order prohibits or excuses the Town from undertaking any
contractual commitment to perform any act under this Agreement, this Agreement shall remain
in full force and effect, but the provision requiring the act shall be deemed to permit the Town to
act at its discretion, and if the Town fails to act, the Owner shall be entitled to terminate this
Agreement.
9.18. Governing Law. This Agreement is entered into in Arizona and shall be construed and
interpreted under the laws of Arizona, and the Parties agree that any litigation or arbitration shall
take place in Pima County, Arizona. Nothing in the use of the word "litigation" in the preceding
sentence shall constitute a waiver of paragraph 5.4 above, requiring disputes to be resolved by
binding arbitration.
9.19. Interpretation. This Agreement has been negotiated by the Town and the Owner, and no
Party shall be deemed to have drafted this Agreement for purposes of construing any portion of
this Agreement for or against any Party.
9.20. Recordation. The Town shall record this Agreement in its entirety in the office of the
Pima County Recorder no later than ten days after it has been executed by the Town and the
Owner.
9.21. No Owner Representations. Except as specifically set forth in this Agreement, nothing
contained in this Agreement shall be deemed to obligate the Town or the Owner to complete any
part or all of the development ofthe Property.
9.22. Approval. If any Party is required pursuant to this Agreement to give its prior written
approval, consent or permission, such approval, consent or permission shall not be unreasonably
withheld or delayed.
9.23. Force Maieure. If any Party shall be unable to observe or perform any covenant or
condition of this Agreement by reason of "force majeure," then the failure to observe or perform
such covenant or condition shall not constitute a default under this Agreement so long as such
Party shall use its best effort to remedy with all reasonable dispatch the event or condition
causing such inability and such event or condition can be cured within a reasonable amount of
time. "Force majeure," as used in this paragraph, means any condition or event not reasonably
within the control of such Party, including without limitation, "acts of God," strikes, lock-outs,
or other disturbances of employer/employee relations; acts of public enemies; orders or restraints
of any kind of government of the United States or any state thereof or any of their departments,
agencies, or officials, or of any civil or military authority; insurrection; civil disturbances; riots;
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
- 13 -
epidemics; landslides; lightning; earthquakes; subsidence; fires; hurricanes; storms; droughts;
floods; arrests, restraints of government and of people; explosions; and partial or entire failure of
utilities. Failure to settle strikes, lock-outs and other disturbances of employer/employee
relations or to settle legal or administrative proceedings by acceding to the demands of the
opposing Party or Parties, in either case when such course is in the judgment of and unfavorable
to a Party shall not constitute failure to use its best efforts to remedy such a condition.
9.24. Conflict ofInterest. This Agreement is subject to A.R.S. S 38-511, which provides for
cancellation of contracts in certain instances involving conflicts of interest.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last date set forth
below their respective signatures.
TOWN:
OWNER:
THE TOWN OF MARANA, an Arizona
municipal corporation
FIDELITY NATIONAL TITLE AGENCY, INC, an
Arizona corporation, as Trustee under Trust
No. 60,182 and not in its corporate capacity
By:
Name & title:
Date:
By:
Ed Honea, Mayor
Date:
ATTEST:
Jocelyn C. Bronson, Clerk
ApPROVED AS TO FORM:
Frank Cassidy, Town Attorney
STATE OF ARIZONA)
ss
County of Pima )
The foregoing instrument was acknowledged before me on by , the
of FIDELITY NATIONAL TITLE AGENCY, INC, an Arizona corporation,
as Trustee under Trust No. 60,182 and not in its corporate capacity.
My commission expires:
Notary Public
{00002248.DOC /7}
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
- 14 -
Leqend
c::J Specific Plan Boundary
[!j
ETHE
PLANNING
CENTER
O'
1000'
2000'
I
~THE
PlANNING
. CENTER
1-4
Cascada Specific Plan
Marana, Arizona
~!l~Y
LEGAL DESCRIPTION
CASCADA PROPERTY
,Portions of Sections 9, 10, 11, 14, 15 and 22, Township 12 South, Range 12 East, Gila and Salt
River Meridian, Pima County, Arizona, said portions being described as follows:
COMMENCING at a punched railroad spike marking the south quarter comer of Section 15, from
which a 0.5 inch diameter rebar tagged "RLS 19316" marking the southwest comer of Section 15
lies South 89045' 18" West a distance of2639.57 feet;
Thence North 00042'34" West a distance of75.00 feet to a line 75.00 feet northerly of and parallel
with the south line of the southwest quarter of Section 15;
Thence South 89045' 18" West a distance of 17.15 feet to the intersection of the northwesterly right-
of-way line of Camino de Manana with the north right-of-way of Linda Vista Boulevard as
described in Docket 7387 at Page 555, records of Pima County, said intersection being the TRUE
POINT OF BEGINNING;
Thence South 89045'18" West along the north right-of-way line of Linda Vista Boulevard a
distance of 542.86 feet to the southeast comer of that Well Site described in Docket 11709 at Page
1752, records of Pima County;
Thence North 00042'34" West along the east line of said Well Site a distance of 100.00 feet to the
northeast comer thereof;
Thence South 89045' 18" West along the north line of said Well Site a distance of 100.00 feet to the
northwest comer thereof;
Thence South 00042'34" East along the west line of said Well Site a distance of 100.00 feet to the
southwest comer thereof and the north right-of-way line of said Linda Vista Boulevard;
Thence South 89045' 18" West along said north right-of-way line, a distance of 541.78 feet to the
northeasterly right-of-way line of the Union Pacific Railroad;
Thence North 34051'57" West along said northeasterly right-of-way line a distance of2586.54 feet
to a 0.5 inch diameter rebar tagged "LS 4527" marking the intersection of said northeasterly right-
of-way line with the west line of the southwest quarter of Section 15;
S:\JOBS 4000-4900\4100\4184\Block Plat 9-13-06\Cascada 9-13-06.doc PaQe 1 of 7
717 NORTH SWAN ROAD' TUCSON. ARIZONA 85711-1210 . TEL: (520) 325-1991 . FAX: (520) 325-2074
Thence North 01005'12" West along said west line a distance of 438.15 to a 2 inch diameter open
iron pipe marking the west quarter comer of Section 15;
Thence North 00042'43" West a distance of2651.90 feet to a 0.625 inch diameter rebar (no tag)
marking the northwest comer of Section 15;
Thence South 89039'56" West along the south line of the southeast quarter of Section 9, a distance
of 1963.88 feet to a 1.5 inch diameter aluminum capped rebar stamped "RIW" marking the
intersection of said south line with the northeasterly line ofthat parcel described in Docket 2109 at
Page 588,records of Pima County, said northeasterly line being on a non-tangent curve concave to
the southwest having a radius of 11038.24 feet, to which intersection a radial line bears North
48023' 47" East;
Thence northwesterly along said curve through a central angle of 03042'14" an arc distance of
713.58 feet to the easterly line ofthat parcel described in Docket 4096 at Page 183, records of
Pima County;
Thence North 00010'26" West along said easterly line a distance of799.32 feet to an angle point in
said line;
Thence South 89037'50" West continuing along an east-west component of said easterly line a
distance of 163.48 feet to the west line of the southeast quarter of Section 9;
Thence North 00010'33" West along said west line a distance of842.11 feet to the south line of
Parcel "B" as described in Docket 12634 at Page 452, records of Pima County;
Thence North 89038'34" East along said south line a distance of 1069.70 feet to the southwesterly
line of Parcel 4 as described in Docket 8096 at Page 1868, records of Pima County;
Thence North 45004'48" West along said southwesterly line, a distance of 1045.95 feet to the
beginning of a curve concave to the southwest having a radius of 1325.00 feet;
Thence northwesterly along said curve and continuing along said southwesterly line, through a
central angle of 07033 '48" an arc distance ofl74.91 feet to the easterly line of that parcel described
in Docket 2109 at Page 591, records of Pima County;
Thence North 00010'08" West along said easterly line a distance of 183.77 feet to the beginning of
a curve concave to the southwest havin~ a radius of 1475.00 feet, to which beginning a radial line
bears North 33000'15" East;
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S\.JOBS 4000-4900\4 J 00\4 I 84\Block Plat 9-J3-06\Cascada 9-] 3-06 doc Page 2 of 7
Thence southeasterly along said curve through a central angle of 11 054' 57" an arc distance of
306.76 feet;
Thence South 45004'48" East a distance of 1779.39 feet to a point hereinafter referted to as POINT
" A" ;
Thence North 44055' 12" East a distance of 483.09 feet to the beginning of a curve concave to the
northwest having a radius of 1725.00 feet;
Thence northeasterly along said curve through a central angle of22019'52" an arc distance of
672.32 feet to the south line of the southeast quarter of the northeast quarter of Section 9;
Thence South 89038'34" West along said south line a distance of 1099.90 feet to a 1.5 inch
diameter aluminum capped rebar stamped "LS 4785" marking the southwest comer ofthe
southeast quarter of the northeast quarter of Section 9;
Thence North 00009'24" West along the west line of the southeast quarter of the northeast quarter
of Section 9 a distance of 1318.92 feet to a 1.5 inch diameter aluminum capped rebar stamped "LS
4785" marking the northwest comer thereof;
Thence North 89035'09" East along the north line ofthe southeast quarter of the northeast quarter of
Section 9 a distance of 1309.12 feet to a 1.5 inch diameter aluminum capped rebar stamped "LS
4785" marking the northeast comer thereof;
Thence South 89055'17" East along the north line of said south half of the northwest quarter of
Section 1 0 a distance of 2651.22 feet to a 1.5 inch diameter aluminum capped rebar stamped "LS
4 785" marking the northeast comer thereof;
Thence North 89043'48" East along the north line of the south half of the northeast quarter of
Section 1 0 a distance of 2646.78 feet to a 1.5 inch diameter aluminum capped rebar stamped "LS
4785" marking the northeast comer thereof;
Thence South 00032'10" East along the east line of said south half a distance of 1317.47 feet to a
0.5 inch diameter rebar tagged "PE 4926" marking the east quarter comer of Section 10;
Thence North 89049'44" East along the north line of the southwest quarter of Section 11 a distance
of 2637.10 feet to a 2 inch diameter open pipe marking the northeast comer thereof;
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Thence South 00~8' 15" East along the east line of the southwest quarter of Section 11 a distance of
2646.62 feet to a Government Land Office scribed stone marking the south quarter comer of
Section 11; ,
Thence North 88052'49" West along the south line of the southwest quarter of Section 11 a distance
of2619.31 feet to a 0.625 inch diameter rebar tagged "LS 4785" marking the southwest comer of
Section 11;
Thence South 00005'25" West along the west line of the northwest quarter of Section l4a distance
of 2701.97 feet to a 1.5 inch diameter aluminum capped rebar stamped "LS 1052" marking the
west quarter comer of Section 14;
Thence South 00020'40" East along the west line of the northwest quarter of the southwest quarter
of Section 14 a distance of 1316.59 feet to a 1.5 inch diameter aluminum capped rebar stamped
"LS 4785" marking the southwest quarter thereof;
Thence North 89036'27" East along the north line of the southwest quarter of the southwest quarter
of Section 14 a distance of 1317.49 to the northeast comer thereof;
Thence South 00019'00" East along the east line of the southwest quarter of the southwest quarter
.of Section 14 a distance of 1286.26 feet to a 1.5 inch diameter aluminum capped rebar stamped
"WILSEY & HAM LS 7599" marking the north right-of-way line of Linda Vista Boulevard
(formerly known as Palo Fierro) as shown in Book 2 of Road Maps at Page 64, records of Pima
County;
Thence South 89034'45" West along said north right-of-way line a distance of 1316.86 feet to the
east line of the southeast quarter of Section 15;
Thence South 89045'16" West continuing along said south right-of-way line a distance of 638.18
feet to the beginning of a non-tangent curve concave to the northeast having a radius of 1507.39
feet, to which beginning a radial line bears South 21007' 12" West;
Thence northwesterly along said curve through a central angle of 30034'03" an arc distance of
804.20 feet;
Thence North 38018' 45" West a distance of 411.03 feet to the beginning of a curve concave to the
south having a radius of 40.00 feet;
Thence westerly along said curve through a central angle of 900} 0'00" an arc distance of 62.95
fu~ .
*~b,QY
Thence South 51031 '15" West a distance of 610.78 feet to the beginning of a curve concave to the
southeast having a radius of 7549.44 feet;
Thence southeasterly along said curve through a central angle of 04000'45" an arc distance of
528,70 feet to the beginning of a reverse curve concave to the northwest having a radius of 7729.44 .
feet;
Thence southerly along said curve through a central angle of 00056' 54" an arc distance of 127.92
feet to the north right-of-way line of Linda Vista Boulevard (formerly known as Palo Fierro Road)
as shown in Book 2 of Road Maps at Page 64, records of Pima County;
Thence South 89045'16" West along said north line a distance of 30.50 feet to the southwesterly
right-of-way line of the aforesaid Camino de Manana;
Thence South 89045' 16" West along a prolongation of said north line, a distance of34.73 feet to
the west line of the southeast quarter of Section 15;
Thence North 00042'34" West a distance of 45.00 feet to a line 75.00 feet northerly of and parallel
with the south line of the southwest quarter of Section 15;
Thence South 89045'18" West a distance of 17.15 feet to the intersection of the northwesterly right-
of-way line of Camino de Manana with the north right-of-way of Linda Vista Boulevard as
described in Docket 7387 at Page 555, records of Pima County, and the TRUE POINT OF
BEGINNING;
TOGETHER WITH a portion of the northwest quarter of Section 22 described as follows:
COMMENCING at a punched railroad spike marking the north quarter comer of Section 22, from
which a 0.5 inch diameter rebar tagged "RLS 19316" marking the northwest comer of Section 22
lies South 89045'18" West a distance of2639.57 feet;
Thence South 00025'06" East a distance of 30.00 feet to a line 30.00 feet southerly of and parallel
with the north line of the northwest quarter of Section 22;
Thence South 89045'18" West along said parallel line a distance of30.00 feet to the intersection of
the south right-of-way line of Linda Vista Boulevard (formerly known as Palo Fierro Road) as
shown in Book 2 of Road Maps at Page 64 with the west right-of-way line of Camino de Manana
as shown in Book 2 of Road Maps at Page 1, said intersection being the TRUE POINT OF
BEGINNING;
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~:~>-;,\ SURVEYING & DRAFTING. IN;::, :
Thence South 00025'06" East along said west right-of-way line a distance of21.97 feet to the
beginning of a non-tangent curve concave to the northwest having a radius of 7729.44 feet, to
which beginning a radial line bears South 40037' 13" East;
Thence southwesterly along said curve through a central angle of 00024' 56" an arc distance of
56.07 feet;
Thence South 42016' 12" West along a non-tangent line a distance of 593.82 feet to the beginning
of a non-tangent curve concave to the northwest having a radius of 7829.44 feet, to which
beginning a radial line bears South 35053'22" East;
Thence southwesterly along said curve through a central angle of 00025'30" an arc distance of
58.08 feet to the northeasterly line of that parcel described in Docket 2363 at Page 94, records of
Pima County;
Thence North 34051' 57" West along said northeasterly line a distance of 643.45 feet to the south
right-of-way line of Linda Vista Boulevard (formerly known as Palo Fierro Road) as shown in
Book 2 of Road Maps at Page 64;
Thence North 89045' 18" East along said south right-of-way line, a distance of 856.97 feet to the
TRUE POINT OF BEGINNING.
AND EXCEPT the following described portion of the southeast quarter of Section 9 and the
southwest quarter of the southwest quarter of Section 15:
COMMENCING at the hereinbefore said POINT "A";
Thence South 45004'48" East a distance of 150.00 feet to the TRUE POINT OF BEGINNING;
Thence North 44055' 12" East a distance of 483.09 feet to the beginning of a curve concave to the
northwest having a radius of 1875.00 feet;
Thence northeasterly along said curve through a central angle of24015'30" an arc distance of
793.85 feet to the south line of the southeast quarter of the northeast quarter of Section 9;
Thence North 89038'34" East along said south line a distance of 46.96 feet to a 1.5 inch diameter
lead capped rebar marking the southeast corner of the southeast quarter of the northeast quarter of
Section 9;
~~hQY
S:\JOBS 4000-4900\4100\41 84\Block Plat 9-13-06\Cascada 9-13-06.doc Page 6 of 7
Thence South 00009'14" East along the west line of the northwest quarter of the southwest quarter
of Section 10 a distance of 1320.29 feet to a 1.5 inch diameter aluminum capped rebar stamped
"LS 4785" marking the southwest comer thereof;
Thence North 89056'28" East along the north line of the southwest quarter of the southwest quarter
of Section 10 a distance of 1330.45 feet to a 1.5 inch diameter aluminum capped rebar stamped
"LS 4785 marking the northeast comer thereof;
Thence South 00015'14" East along the east line of the southwest quarter of the southwest quarter
of Section 10 a distance of 1247.05 feet to a point from which a 1.5 inch diameter aluminum
capped rebar stamped "LS 4785" marking the southeast comer of the southwest quarter of the
southwest quarter of Section 1 0 lies South 00015' 14" East a distance of 7 5 ;00 feet, said point being
the beginning of a non-tangent curve concave to the northeast having a radius of 1425.00 feet, to
which point a radial line bears South 00000'52" West;
Thence northwesterly along said curve through a central angle of 44054'20" an arc distance of
1116.84 feet;
Thence North 4S004'48" West a distance of 1621.90 feet to the TRUE POINT OF BEGINNING.
FURTHER EXCEPT any portion lying within Camino de Manana as shown in Book 2 of Road
Maps at Page 1, records of Pima County.
FURTHER EXCEPT any portion lying within Linda Vista Boulevard as described in Docket
7387 at Page 555, records of Pima County.
FURTHER EXCEPT any portion lying within those roadway parcels 1,2,3 and 4 as described in
. Docket 8096 at Page 1869, records of Pima County.
AND FURTHER EXCEPT any portion lying within those drainageways dedicated to Pima
County, Arizona on the plat of Camino de Manana Estates Lots 1 thru 86, recorded in Book 27 of
Maps and Plats at Page 77 and on the plat of Camino de Manana Estates Lots 87 thru 222, recorded
in Book 27 of Maps and Plats at Page 78, records of Pima County.
i.t>t Ashby;
'(I:. SURVf'(ING & DRAFTlNG.lNC
S:IJOBS 4000-4900\4100\41 84\B1ock Plat 9-13-06\Cascada 9-13-06.doc Page 7 of 7
CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
TOWN OF MARANA, ARIZONA
THIS DEVELOPMENT AGREEMENT ("Agreement") is made by and between the TOWN OF
MARANA, an Arizona municipal corporation (the "Town") and FIDELITY NATIONAL TITLE
AGENCY, INC, an Arizona corporation, as Trustee under Trust No. 60,182 and not in its corporate
capacity (the "Owner"). The Town and the Owner are collectively referred to in this Agreement
as the "Parties," and each is sometimes individually referred to as a "Party."
RECITALS
A. The Owner owns or controls approximately 1,476 acres of land located in the Town
limits, as depicted on the map attached as Exhibit "A" and legally described in Exhibit "B" (the
"Property"). The Property and its development were included in and subject to the provisions
of the Acacia Hills Specific Plan, Marana Ordinance No. 88.16, adopted July 5, 1988; or the
Northgate Specific Plan, Marana Ordinance No. 91.09, adopted May 7, 1991 (collectively, the
"Old Specific Plans"). The Old Specific Plans would have permitted the development of more
than 10,000 units on the Property.
B. The portion of the Property covered by the Northgate Specific Plan is also the subject of
the Northgate Development Agreement recorded in the Pima County Recorder's Office in
Docket 9038, at Pages 353-381 (the "Northgate Development Agreement").
C. The Property is included in the various phases of development set forth in the Cascada
Specific Plan (the "Cascada Plan"), which was adopted by the Town on December 5, 2006 by
Marana Ordinance No. 2006.23 to modify, amend and supersede the Old Specific Plans as to
the Property. The Cascada Plan effectively downzones the Property and substantially reduces
the number of units to be developed within the Property to the densities orooosed in the
Cascada Plan a maximum. of3,805 units instead of the more than 10,000 units permitted under
the Old Specific Plans.
D. With the December 5, 2006 approval and adoption of the Cascada Plan and with the
approval of this Agreement, the Old Specific Plans, including any and all related development
agreements, shall be modified, amended and superseded only as to the Property, and the
Property shall be developed in phases pursuant to the Cascada Plan, as clarified and
supplemented by this Development Agreement.
E. The Cascada Plan also includes numerous special design features and public amenities
not included in the Old Specific Plans, including without limitation, special street standards
and an integrated system of trails and several hundred acres of open space featuring, among
other things, over 220 acres of natural undisturbed open space and wildlife habitat;
approximately 100 acres of drainage ways, including undisturbed drainage bottom and wildlife
corridors; more than 360 acres of open space within the area designated as Parcel 5 in the
Cascada Plan; and approximately 67.4 acres designated as recreational open space to be
dedicated to and maintained by the Town and approximately 13 acres of recreational open
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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space to be transferred and maintained pursuant to paragraph 2.9 of this Agreement, which will
include multi-purpose recreation facilities and on-site storm water retention/detention.
F. Pursuant to the Old Specific Plans, the Owner has made substantial improvements and
commitments and, pursuant to the Cascada Plan and this Agreement, will continue to make a
substantial commitment of resources for public and private improvements during each phase of
the development of the Property, including, without limitation, roadways, parks, public trails,
open space and wildlife corridors, an open space management plan, schools, sewer and water
service, other utilities, and similar or related improvements.
G. The Town and the Owner further acknowledge that the development of each phase of
the Property, pursuant to the Cascada Plan and this Agreement, will result in planning and
economic benefits to the Town and its residents.
H. The Northgate Development Agreement expressly provides, subject to specific
limitations, that after the date of the development agreements applicable under the Old Specific
Plans (May 7, 1991) "the Town shall not impose or enact any additional conditions, exactions,
dedications, development or impact fees, rules or regulations applicable to or governing the
development of the Property." This language is referred to in this Agreement as the "Northgate
Vesting Language."
1. The Town questions the validity of the Northgate Vesting Language for reasons
including (i) the Owner's failure to undertake substantial development in reliance on the Old
Specific Plans and the Northgate Development Agreement within a reasonable time after their
adoption, (ii) the absence of a reasonable time limitation on the Northgate Vesting Language,
resulting in an illegal attempt to restrict future Councils' legislative authority, (iii) the absence
of benefit (consideration) to the Town, and (iv) special treatment of the Owner with respect to
development impact fees in violation of A.R.S. ~ 9-463.05, which requires that all such fees be
"assessed in a non-discriminatory manner."
J. The Owner contends that it has substantially changed its position and has made
substantial commitments and invested substantial resources in reliance on the Old Specific
Plans and the Northgate Development Agreement and further contends that the Northgate
Vesting Language is legally binding, enforceable and effective.
K. The Parties desire to set aside their disagreement about the Northgate Vesting Language
by superseding and replacing the Northgate Development Agreement as to the Property with
this Agreement.
L. The Town has determined that it is in the best interests of the Town and its residents to
have the Property developed pursuant to the Cascada Plan and its reduced densities and special
features, and subject to the substantial additional conditions, exactions, and commitments
contained in the Cascada Plan, and to the extent provided for in this Agreement.
M. The Town is currently in the design process on a project to construct a new Interstate 10
interchange at Twin Peaks Road (the "Twin Peaks TI Project"), and anticipates that
construction will begin in April 2008.
N. The plans for the Twin Peaks TI Project include fully reconstructed roadways for
Camino de Manana and Linda Vista Road adjacent to and in the vicinity of the Property. The
fully reconstructed Camino de Manana and Linda Vista Road improvements as they would beo
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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constructed as part of the Twin Peaks TI Project are referred to in this Agreement as the
"CdM/L V Improvements."
O. To facilitate the timely development of the Cascada Plan, the Owner desires to construct
limited portions of the CdM/L V Improvements before construction of the Twin Peaks TI
Project begins.
P. The Parties desire to allow the Owner the flexibility to construct portions of the
CdM/LV Improvements as long as the Owner's construction does not unreasonably interfere
with or delay the Twin Peaks TI Project.
Q. Certain portions of the Property are designated as open space under the Cascada Plan
based on restrictions under a conservation easement in favor of the federal government. If the
federal government waives or adjusts the conservation easement restrictions, the Owner plans
to file an application to amend the Cascada Plan to allow affected portions of the conservation
easement to be developed, and the Owner acknowledges that any such amendment to the
Cascada Plan shall be subject to approval by the Town Council.
R. This Agreement is consistent with the portions of the Town's General Plan applicable to
the Property.
S. The Parties understand and acknowledge that this Agreement is a "Development
Agreement" within the meaning and pursuant to the terms of A.R.S. S 9-500.05.
AGREEMENT
Now, THEREFORE, in consideration of the foregoing premises and the mutual promises
and agreements set forth in this Agreement, the Parties hereby agree as follows:
Article 1. Effect.
1.1. The Northgate Development Agreement. As of the effective date of this Agreement, the
Northgate Development Agreement is superseded as to the Property and replaced by this
Agreement.
1.2. Geographic Effect. The Cascada Plan and this Agreement shall not have any effect on
land covered by the Old Specific Plans but not included within the Property except as expressly
permitted by this Agreement or an amendment to the Cascada Plan.
Article 2. Development of the Property.
2.1. General. The development of the Property shall be governed by the underlying zoning or
land use designation and the standards provided for in the Cascada Plan, including the Owner's
design and development standards and guidelines, as clarified and supplemented by this
Agreement. The Marana Development Code, including the written rules, regulations, substantive
procedures, and policies relating to development of land, adopted or approved by the Mayor and
Council (collectively the "Marana Development Code") in effect on the effective date of the
Cascada Plan shall apply to the extent not covered by the Cascada Plan or this Agreement. For
purposes of this Agreement, the underlying zoning or land use designation ("Land Use
Designation") shall mean full development, exclusive of voluntary limitations or restrictions,
under the controlling Land Use Designation included in the Cascada Plan, and if not so covered,
under the Marana Development Code.
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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2.2. Specific Plan. The Cascada Plan and its underlying Land Use Designations, as clarified
and supplemented by this Agreement, are hereby incorporated into the Town's General Plan for
all purposes. Development of the Property shall be in accordance with the Cascada Plan, as may
be amended from time to time. The Owner is authorized to implement the uses, densities, and
intensities set forth in the Cascada Plan, and will be accorded all approvals necessary to permit
the Owner to implement the Cascada Plan, subject to the Town's review and approvals of
appropriate and required applications, block and subdivision plats, development or site plans and
applicable development standards and specifications. The Town and the Owner acknowledge
that adjustments to the Cascada Plan, including the reasonable waiver or adjustment of
conditions or limitations on the uses or densities included within the Cascada Plan, may be
necessary from time to time to reflect actual roadway alignments, changes in market conditions,
development financing, and/or to meet the new requirements of one or more of the potential
users or builders of any part of the Property. The Parties shall cooperate in good faith to agree
upon and use reasonable best efforts to process any adjustments to the Cascada Plan. Consistent
with the administrative procedure provided for in the Town's existing regulations and the terms
of this Agreement and subject to the limitations set forth in paragraph 4.3 below, the Town
agrees to approve or issue such permits, plans, specifications and/or plats of or for the Property
as may be requested by the Owner in order to implement, and which are reasonably consistent
with, the underlying Land Use Designations in the Cascada Plan. The Town's failure to timely
approve any permits, plans, specifications or plats, or other matters necessary to permit the
Owner or any user or builder within the Property to reasonably implement the Cascada Plan,
shall be in breach of this Agreement. If and when the Parties find that changes or adjustments are
necessary or appropriate to be made to the Cascada Plan, they shall, unless otherwise required by
law, effectuate such changes or adjustments through administrative amendments approved by the
Town's Planning Director, which after execution, shall be attached as an addendum to and shall
become part of the Cascada Plan, and may be further changed and adjusted from time to time as
necessary, with the approval of the Town and the Owner as provided in this paragraph. Unless
otherwise required by law, no such administrative adjustment shall require prior notice or
hearing. Notwithstanding the foregoing, the following matters shall not be considered
administrative changes or amendments, but shall be considered substantive amendments which
shall be reviewed by the Planning and Zoning Commission and approved by the Town Council:
2.2.1. Alteration of the permitted uses of the Property;
2.2.2. Increase in the density or intensity of use or number of dwelling units, except as
otherwise allowed in connection with the transfer of specific density and intensity
requirements between individual parcels as provided in the Cascada Plan and this
Agreement;
2.2.3. Increase in the maximum height and size of permitted buildings (except as allowed
in connection with the transfer of specific building height and size limitations between
individual parcels within the Property as provided in the Cascada Plan and this Agreement);
and,
2.2.4. Deletion of a requirement for the reservation or dedication of land for public
purposes, except for minor boundary adjustments approved by the Planning Director.
2.3. Development Review. Each phase of the Property shall be developed in a manner
consistent with the Development Regulations and the Cascada Plan, as clarified by this
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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Agreement. The Cascada Plan establishes the basic land uses, the densities and intensities of
such uses, whereas this Agreement quantifies the exactions and the development regulations
applicable to the development of the Property. Upon the Owner's compliance with the applicable
development review and approval procedures and the substantive requirements of the
development regulations that now apply to the Property, the Town agrees to timely process all
submittals for any portion of the Property and to timely approve such block plats, any
subdivision or other plats and any building or other permit applications consistent with the
Cascada Plan and applicable development regulations and to timely issue such permits or similar
approvals for the Property.
2.4. Zoning and Plat Conditions. The Owner agrees to fulfill all related conditions of the
Cascada Plan and other applicable development regulations. The Cascada Plan, as clarified and
supplemented by this Agreement, supersedes the existing subdivision plats within the Property.
2.5. Abandonment of Previously Dedicated Rights-of-Way and Easements. Subject to
compliance with any applicable statutory requirements (for example, A.R.S. S 9-407 or A.R.S.
S 28-7203), any road or other dedication or easement in favor of the Town made pursuant to the
Old Specific Plans or located on the Property or contained in or conveyed pursuant to any deed
or existing subdivision plat within the Property shall be deemed abandoned effective upon the
realignment of any such road or other dedication or easement or upon the recording of a new or
amended plat covering the land area with the particular road or other dedication or easement.
2.6. Archaeological/Historic Resources. Development of each phase of the Property shall
meet all Town requirements set forth in Title 2 and Title 20 of the Marana Development Code
related to Archeological and Historic Resources.
2.7. Residential Design Guidelines. All residential construction on any portion of the
Property shall be constructed in accordance with the design standards and guidelines contained
in the Cascada Plan. The Parties acknowledge and agree that the residential guidelines contained
in the Cascada Plan fall within the exception for specific plan-tailored design standards found at
Section 8.06.02(B) of the Marana Land Development Code; consequently, the Town's residential
guidelines as adopted in Marana Ordinance No. 2005.18 shall not apply to the Property.
2.8. No Manufactured Housing. No manufactured housing shall be permitted on any portion
of the Property.
2.9. Management of Open Space. Owner shall cause to be prepared, at Owner's cost, a plan
for the proper management and maintenance of the open space areas included in the Cascada
Plan. One or more homeowners associations established by declarations of restrictive covenants
recorded over all or part of the Property or a government or conservation entity the Town
reasonably determines is willing and able to permanently maintain the undisturbed natural areas
as required by the Cascada Plan and this Agreement shall be given:
2.9.1. Enforcement authority over and control of all undisturbed natural areas set aside
and maintained as required by the Cascada Plan and this Agreement; and
2.9.2. Permanent ownership of all undisturbed natural areas set aside and maintained as
required by the Cascada Plan and this Agreement that are located outside the boundaries of
individually-owned residential lots.
2.10. Alignment of Roadways and Adjustments. The Parties acknowledge that the locations
and alignments of major roadways set forth in the Cascada Plan are based on current conceptual
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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designs and traffic projections. The actual design and improvement of the major roadways within
the Property, including Camino de Manana and Linda Vista, will necessarily require adjustments
from existing roadway alignments and corresponding parcel boundaries. Upon completion of the
design and actual construction of the major roadways within the Property, the boundaries of the
parcels established by the Cascada Plan shall be adjusted to correspond to the actual alignment of
the roadways, as constructed, through the submittal of a revised plat or similar submittal
permitted by paragraph 2.11 of this Agreement. In such submittal, Owner shall have the right to
adjust the permitted uses and densities of land located along the actual roadway alignment to
preserve the overall percentage or ratio of each such use and density classification within the
Property permitted under the Cascada Plan.
2.11. Revised Plat. The Owner may submit and the Town shall approve revised block plats,
subdivision plats, development plans or similar submittals for portions of the Property which
may vary from the Cascada Plan, provided that the revisions in any such submittal are
substantially consistent with the general development concept and underlying Land Use
Designations contained in the Cascada Plan, or the provisions of this Agreement, without the
necessity of amending the Cascada Plan or this Agreement. The determination of consistency
shall be made by the Town's Planning Director, and appeals may be taken to the Town's board
of adjustment in a manner consistent with other zoning interpretation appeals.
2.12. Timing. The Town and Owner acknowledge the necessity of prompt review by the
Town of all plans, applications, and other materials submitted by the Owner ("Submitted
Materials") pursuant to the Cascada Plan, this Agreement, or any zoning, permit, or other similar
procedure pertaining to the development of the Property. The Town agrees to use its best efforts
to accomplish such prompt and expeditious review of all such Submitted Materials whenever
possible.
Article 3. Utilities and On-Site Infrastructure.
3.1. Water Utilities.
3.1.1. The Owner will enter into a standard form Water Service Agreement with the
Town for potable (and non-potable should Owner so aQTee) systems which sets forth the
various agreements of the Parties relating to, among other things, the interconnection and
main extension from the existing water system, and the development, construction,
dedication, ownership, and design of the water system.
3.1.2. The Owner shall at its own cost design and construct and have in actual operation
and service the following water infrastructure improvements (for purposes of this paragraph,
the term "EDU" means "equivalent demand unit"; that is, the amount of water used by a
typical single-family detached home, which the Town currently estimates to be 335 gallons
per day):
3.1.2.1. A Z-Zone booster capacity upgrade of 780 gallons per minute on or before
connection of uses on the Property totaling 612 EDUs.
3.1.2.2. An 865 gallon-per-minute well (generally referred to as "Well 2") on or
before connection of uses on the Property totaling 700 EDUs.
3.1.2.3. An 865 gallon-per-minute well (generally referred to as "Well 3") on or
before connection of uses on the Property totaling 1,860 EDUs.
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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_.....,..__......_~_._~,....._.~.=,.o,.__.._,_..
3.1.2.4. A 640,000 gallon storage capacity upgrade (reservoir) on or before
connection of uses on the Property totaling 2,197 EDUs; provided, however, that if
construction of a regional storage facility adequate to serve the Property begins before the
Owner begins construction of this 640,000-gallon reservoir, the Owner shall contribute
the estimated cost of the 640,000-gallon reservoir toward the construction of the regional
storage facility on or before connection of uses on the Property totaling 2,197 EDUs.
3.1.3. The Town's monthly base water service fee for one-inch residential meters, which
are being installed to serve homes on the Property instead of 'is'' x %" meters to
accommodate fire suppression facilities, shall be the same as the Town's monthly base water
service fee for 'is'' x %" meters.
3.2. Fire Protection. Before a certificate of occupancy is issued for any dwelling unit on the
Property, the Owner shall have completed or shall provide evidence to the Town that Owner has
made a diligent effort to complete the process of having the Property annexed into the Northwest
Fire District.
3.3. Compliance with State and Federal Laws and Regulations. Owner expressly
acknowledges that no approval, permit or authorization of the Town authorizes the Owner to
violate any applicable federal or state laws or regulations, or relieves the Owner from the
independent responsibility to ensure compliance with all applicable federal and state laws and
regulations, including but not limited to the Endangered Species Act and Clean Water Act.
Article 4. Owner's Contributions for Roadway Improvements,
Public Schools, and Public Parks and Trails
4.1. Cascada Plan Roadways. The Owner shall construct all interior subdivision streets and
roads within the Property as set forth in the Cascada Plan in connection with the development of
the various phases of the Property under the Cascada Plan. Owner mav choose to utilize the
Town's oublic street standards even on streets initiallv shown as orivate in the Cascada Plan
where Owner and Town al!fee that the street will be dedicated to the Town.
4.2. Maior Routes Right-of-Way Dedications. The Owner shall dedicate all rights-of-way
needed from the Property for any portion of the Twin Peaks TI Project (including without
limitation the CdM/LV Improvements), Camino de Manana and Lambert Lane, as shown on the
Town's current major streets and routes plan. The dedication shall occur upon the earlier of the
following:
4.2.1. When the Town requests the right-of-way (generally upon completion of
90% plans for the roadway that is the subject ofthe requested portion of right-of-way); or
4.2.2. Upon recordation of a subdivision plat for property that includes or is adjacent to
the right-of-way.
4.3. Concurrency of Onsite Development and the Twin Peaks TI Proiect. The Owner shall be
permitted to construct improvements on the Property before and during the construction of the
Twin Peaks TI Project, provided that construction activities on the Property and on adjacent
roadways shall not unreasonably interfere with the construction of the Twin Peaks TI Project.
4.4. Owner's Construction of Portions of the CdM/L V Improvements. The Owner shall be
permitted to construct portions of the CdM/L V Improvements (in conformance with the Town-
approved engineering plans for the CdM/L V Improvements) to the extent they are necessary for
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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development of the Cascada Plan so long as the Owner's construction begins not later than eight
months before and is contractually obligated to finish not later than the date of the then-
anticipated start of construction of the Twin Peaks TI Project. Owner shall receive development
impact fee credits (see Article 6 below) against the Marana South Transportation Development
Impact Fee for its actual cost to construct portions of the CdM/LV Improvements.
4.5. Public Parks and Public Trails. The Property is subject to the Town-Wide Park
Development Impact Fee adopted by Ordinance No. 2005.11, as amended from time to time (the
"Park Impact Fee"). Owner shall receive development impact fee credits (see Article 6 below)
against the Park Impact Fee for all land dedicated for public parks or public access trails,
whether by the grant of fee title or a public access easement, and all costs incurred by Owner in
the construction or improvement of the regional park and other public access parks or trails
included in the Cascada Plan.
4.6. School Land. Pursuant to separate Agreement with the Marana Unified School District,
Owner will contribute a School Improvement Contribution Fee of $1,200 per residential lot,
payable to the Marana Unified School District. The School Improvement Contribution Fee shall
be due and payable at the issuance of the building permit for each residential unit.
Article 5. Cooperation and Alternative Dispute Resolution.
5.1. Appointment of Representatives. To further the commitment of the Parties to cooperate
in the progress of the Development, the Town and the Owner each shall designate and appoint a
representative to act as a liaison between the Town and its various departments and the Owner.
The initial representative for the Town (the "Town Representative") shall be the Planning
Director, and the initial representative for the Owner shall be Larry Kr~ies or a replacement to be
selected by the Owner. The representatives shall be available at all reasonable times to discuss
and review the performance of the Parties to this Agreement and the development of the
Property.
5.2. Default; Remedies. If either Party defaults (the "Defaulting Party") with respect to any
of that Party's obligations under this Agreement, the other Party (the "Non-Defaulting Party")
shall be entitled to give written notice in the manner prescribed in Article 8 to the Defaulting
Party, which notice shall state the nature of the default claimed and make demand that such
default be corrected. The Defaulting Party shall then have (i) twenty days from the date of the
notice within which to correct the default if it can reasonably be corrected by the payment of
money, or (ii) thirty days from the date of the notice to cure the default if action other than the
payment of money is reasonably required, or if the non-monetary default cannot reasonably be
cured within sixty days, then such longer period as may be reasonably required, provided and so
long as the cure is promptly commenced within sixty days and thereafter diligently prosecuted to
completion. If any default is not cured within the applicable time period set forth in this
paragraph, then the Non-Defaulting Party shall be entitled to begin the mediation and arbitration
proceedings set forth in this Article. The Parties agree that due to the size, nature and scope of
the Development, and due to the fact that it may not be practical or possible to restore the
Property to its condition prior to Owner's development and improvement work, once
implementation of this Agreement has begun, money damages and remedies at law will likely be
inadequate and that specific performance will likely be appropriate for the enforcement of this
Agreement. This paragraph shall not limit any contract or other rights, remedies, or causes of
action that either Party may have at law or in equity.
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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5.3. Mediation. If there is a dispute under this Agreement which the Parties cannot resolve
between themselves, the Parties agree that there shall be a forty-five day moratorium on
arbitration during which time the Parties agree to attempt to settle the dispute by nonbinding
mediation before commencement of arbitration. The mediation shall be held under the
commercial mediation rules of the American Arbitration Association. The matter in dispute shall
be submitted to a mediator mutually selected by Owner and the Town. If the Parties cannot agree
upon the selection of a mediator within seven days, then within three days thereafter the Town
and the Owner shall request the presiding judge of the Superior Court in and for the County of
Pima, State of Arizona, to appoint an independent mediator. The mediator selected shall have at
least five years' experience in mediating or arbitrating disputes relating to real estate
development. The cost of any such mediation shall be divided equally between the Town and the
Owner. The results of the mediation shall be nonbinding on the Parties, and any Party shall be
free to initiate arbitration after the moratorium.
5.4. Arbitration. After mediation, as provided for in this Article, any dispute, controversy,
claim or cause of action arising out of or relating to this Agreement shall be settled by
submission of the matter by both Parties to binding arbitration in accordance with the rules of the
American Arbitration Association and the Arizona Uniform Arbitration Act, A.R.S. ~ 12-501 et
seq., and judgment upon the award rendered by the arbitrator(s) may be entered in a court having
jurisdiction.
Article 6. Future Development Impact Fees
6.1. Credits. If the Town adopts a development impact fee for the same infrastructure for
which the Owner has contributed land or made improvements or paid a voluntary fee pursuant to
this Agreement, the Owner shall be entitled to a credit for such contributions as set forth in
A.R.S. ~ 9-463.05.
6.2. Value of Dedicated Property. The portions of the Property dedicated for public use
("Dedicated Property") and for which Owner is entitled to receive a development impact fee
credit shall be valued based on property values used to establish the applicable development
impact fee. The Marana South Transportation Development Impact Fee was established without
including any anticipated costs for right-of-way acquisition. Consequently, to the extent
dedication of right-of-way could be properly required for development of the Cascada Plan, no
development impact fee credit will be granted for right-of-way dedicated for improvements
funded by the Marana South Transportation Development Impact Fee unless it is amended to
include right-of-way costs or unless the Town adopts some other roadway development impact
fee against which the right-of-way may be creditable. Nothing in this paragraph waives the
Owner's rights conferred by A.R.S. ~ 9-500.12. The credit shall be based on the fair market
value of the dedicated land at the time of its dedication.
Article 7. Protected Development Rights
7.1. General. To ensure reasonable certainty, stability and fairness to the Owner and the
Town for a reasonable period of time, the land use designations, uses, and densities that now
apply to the Property, as amended by this Agreement, shall remain in effect and shall not be
changed without the consent of the Owner as follows:
7 .1.1. For a period of seven years after the effective date of this Agreement.
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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--..........--_....,._,~"',..-__~"""~.."',.",_.'M.""...~.,"..,_
7.1.2. For an additional seven-year period if within the seven-year period referenced in
paragraph 7.1.1 above the Owner has accomplished all of the following:
7.1.2.1. Construction of the outfall sewer line intended to serve the development of
the Cascada Plan south of Lambert Lane;
7.1.2.2. Construction of a reservoir addition, approximately 640,000 gallons in size,
augmenting the existing Hartman Vistas Reservoir;
7.1.2.3. Construction of a 16-inch water main intended to serve the development of
the Cascada Plan; and
7.1.2.4. Obtaining active permits and undertaking grading, paving and other
infrastructure improvements, including roadways, ultimately to be dedicated to the
public.
7.1.3. For an additional six-year period ifby the end of the seven-year period referenced
in paragraph 7.1.2 above the Owner has accomplished the following:
7.1.3.1. Construction of a second 16-inch well site to be dedicated to the Town (or
other applicable water company); and
7.1.3.2. Further engaged in grading, paving sewer and water installations in
furtherance of the development specified in the Cascada Plan and infrastructure
improvements required by the Town of Mar ana.
7.2. Market Conditions and Unforeseen Events. To the extent market conditions or other
unforeseen events impede the completion of development within 21 years, and to the extent there
is not an over-riding public need to modify the Cascada Plan, the Town and the Owner agree to
resolve, in good faith, the balancing of rights and further obligations against the public good in
order to fulfill the objectives ofthe Cascada Plan.
Article 8. Notices and Filings.
8.1. Manner of Serving. All notices, filings, consents, approvals and other communications
provided for in or given in connection with this Agreement shall be validly given, filed, made,
transmitted or served if in writing and delivered personally or sent by registered or certified
United States mail, postage prepaid, if to (or to such other addresses as any Party may from time
to time designate in writing and deliver in a like manner):
To the Town: Town Manager
Town of Marana
Marana Municipal Complex
11555 West Civic Center Drive, A3
Marana, AZ 85653
To Owner:
Red Point Development, Inc.
8710 North Thomydale Road, #120
Tucson, AZ 85742
Article 9. General Terms and Conditions.
9.1. Term. This Agreement shall become effective upon its execution by all the Parties and
the effective date of the resolution or action of the Town Council approving this Agreement (the
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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"Effective Date"). The term of this Agreement shall begin on the Effective Date and, unless
sooner terminated by the mutual consent of the Parties, shall automatically terminate and shall
thereafter be void for all purposes on the twentieth anniversary of the Effective Date. If the
Parties determine that a longer period is necessary for any reason, the term of this Agreement
may be extended by written agreement of the Parties. The Developer shall be entitled to
terminate this Agreement if the Town materially impairs the development entitlements on the
Property granted by this Agreement.
9.2. Waiver. No delay in exercising any right or remedy shall constitute a waiver of that right
or remedy, and no waiver by the Town or the Owner of the breach of any covenant of this
Agreement shall be construed as a waiver of any preceding or succeeding breach of the same or
any other covenant or condition of this Agreement.
9.3. Attorney's Fees. If any Party brings a lawsuit against any other Party to enforce any of
the terms, covenants or conditions of this Agreement, or by reason of any breach or default of
this Agreement, the prevailing Party shall be paid all reasonable costs and reasonable attorneys'
fees by the other Party, in an amount determined by the court and not by the jury. Nothing in the
use of the word "lawsuit" in the preceding sentence shall constitute a waiver of paragraph 5.4
above, requiring disputes to be resolved by binding arbitration.
9.4. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument. The signature pages from one or more counterparts may be removed from such
counterparts and such signature pages all attached to a single instrument so that the signatures of
all Parties may be physically attached to a single document.
9.5. Headings. The descriptive headings of this Agreement are intended to be used to assist
in interpreting the meaning and construction of the provisions of this Agreement.
9.6. Recitals. The Recitals set forth at the beginning of this Agreement are hereby
acknowledged, confirmed to be accurate and incorporated here by reference.
9.7. 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.
9.8. Further Acts. Each of the Parties shall execute and deliver all documents and perform all
acts as reasonably necessary, from time to time, to carry out the matter contemplated by this
Agreement. Without limiting the generality of the foregoing, the Town shall cooperate in good
faith and process promptly any requests and applications for plat or permit approvals or
revisions, and other necessary approvals relating to the development of the Property by the
Owner and its successors.
9.9. Future Effect.
9.9.1. Time Essence and Successors. Time is of the essence of this Agreement. All of
the provisions of this Agreement shall inure to the benefit of and be binding upon the
successors, assigns and legal representative of the Parties, except as provided in
paragraph 9.9.2 below. Notwithstanding the foregoing, to the extent permitted by law, the
Owner's rights under this Agreement as to all or any phase or portion of the Cascada Plan or
the Property may only be assigned by a written instrument, agreed to by all of the Parties and
recorded in the Official Records of Pima County, Arizona, expressly assigning such rights,
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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and no obligation of the Owner under this Agreement shall be binding upon anyone owning
any right, title or interest in the Property unless such obligation has been specifically
assumed in writing or unless otherwise required by law. The Town understands that the
Owner may create one or more entities or subsidiaries wholly owned or controlled by the
Owner for purposes of carrying out the development of the Property as contemplated in this
Agreement, and the Town's consent to the Owner's assignment of its rights under this
Agreement to such entities or subsidiaries shall not be withheld. In the event of a complete
assignment by Owner of all rights and obligations of Owner under this Agreement, or as to
any phase or portion of the Cascada Plan or the Property, Owner's liability under this
Agreement shall terminate, as to the phase or portion of the Property assigned, effective upon
the assumption of those liabilities by Owner's assignee, provided that the Town has approved
the assignment to such assignee, which approval shall not unreasonably be withheld.
9.9.2. Termination Upon Sale to End Purchaser or User. This Agreement shall terminate
without the execution or recordation of any further document or instrument as to any lot
which has been finally subdivided and individually (and not in "bulk") leased (for a period of
longer than one year) or sold to the end purchaser or user and thereupon such lot shall be
released from and no longer be subject to or burdened by the provisions of this Agreement.
9.10. No Partnership and Third Parties. It is not intended by this Agreement to, and nothing
contained in this Agreement shall, create any partnership, joint venture or other arrangement
between the Owner and the Town. No term or provision of this Agreement is intended to, or
shall be for the benefit of any person, firm, organization or corporation not a party to this
Agreement, and no such other person, firm, organization or corporation shall have any right or
cause of action under this Agreement.
9.11. Other Instruments. Each Party shall, promptly upon the request of the other, have
acknowledged and delivered to the other any and all further instruments and assurances
reasonably request or appropriate to evidence or give effect to the provisions of this Agreement.
9.12. Imposition of Duty by Law. This Agreement does not relieve any Party of any
obligation or responsibility imposed upon it by law.
9.13. Entire Agreement. This Agreement constitutes the entire agreement between the Parties
pertaining to the subject matter of this Agreement. All prior and contemporaneous agreements,
representation and understanding of the Parties, oral or written, are hereby superseded and
merged in this Agreement.
9.14. Amendments to Agreement. No change or addition shall be made to this Agreement
except by a written amendment executed by the Parties. The Parties agree to cooperate and in
good faith pursue any amendments to this Agreement that are reasonably necessary to
accomplish the goals expressed in the Final Plats or Development Plans governing the Property
and Cascada Plan as amended by this Agreement. Within ten days after any amendment to this
Agreement, it shall be recorded in the office of the Pima County Recorder by and at the expense
of the Party requesting the amendment.
9.15. Names and Plans. The Owner shall be the sole owner of all names, titles, plans,
drawings, specifications, ideas, programs, ideas, designs, and work products of every nature at
any time developed, formulated or prepared by or at the instance of the Owner in connection
with the Property or any plans; provided, however, that in connection with any conveyance of
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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'--._...=.......~-"'."'''''''".-._,........,~.'''''''--_._.=.".~ "..'
portions of the infrastructure as provided in this Agreement such rights pertaining to the portions
of the infrastructure so conveyed shall be assigned to the extent that such rights are assignable, to
the appropriate governmental authority.
9.16. Good Standing: Authority. The Owner represents and warrants to the Town that it is
duly formed and validly existing under the laws of Arizona and is authorized to do business in
the state of Arizona. The Town represents and warrants to the Owner that it is an Arizona
municipal corporation with authority to enter into this Agreement under applicable state laws.
Each Party represents and warrants that the individual executing this Agreement on its behalf is
authorized and empowered to bind the Party on whose behalf each such individual is signing.
9.17. Severability. If any provision of this Agreement is declared void or unenforceable, it
shall be severed from the remainder of this Agreement, which shall otherwise remain in full
force and effect. If a law or court order prohibits or excuses the Town from undertaking any
contractual commitment to perform any act under this Agreement, this Agreement shall remain
in full force and effect, but the provision requiring the act shall be deemed to permit the Town to
act at its discretion, and if the Town fails to act, the Owner shall be entitled to terminate this
Agreement.
9.18. Governing Law. This Agreement is entered into in Arizona and shall be construed and
interpreted under the laws of Arizona, and the Parties agree that any litigation or arbitration shall
take place in Pima County, Arizona. Nothing in the use of the word "litigation" in the preceding
sentence shall constitute a waiver of paragraph 5.4 above, requiring disputes to be resolved by
binding arbitration.
9.19. Interpretation. This Agreement has been negotiated by the Town and the Owner, and no
Party shall be deemed to have drafted this Agreement for purposes of construing any portion of
this Agreement for or against any Party.
9.20. Recordation. The Town shall record this Agreement in its entirety in the office of the
Pima County Recorder no later than ten days after it has been executed by the Town and the
Owner.
9.21. No Owner Representations. Except as specifically set forth in this Agreement, nothing
contained in this Agreement shall be deemed to obligate the Town or the Owner to complete any
part or all of the development of the Property.
9.22. Approval. If any Party is required pursuant to this Agreement to give its prior written
approval, consent or permission, such approval, consent or permission shall not be unreasonably
withheld or delayed.
9.23. Force Majeure. If any Party shall be unable to observe or perform any covenant or
condition of this Agreement by reason of "force majeure," then the failure to observe or perform
such covenant or condition shall not constitute a default under this Agreement so long as such
Party shall use its best effort to remedy with all reasonable dispatch the event or condition
causing such inability and such event or condition can be cured within a reasonable amount of
time. "Force majeure," as used in this paragraph, means any condition or event not reasonably
within the control of such Party, including without limitation, "acts of God," strikes, lock-outs,
or other disturbances of employer/employee relations; acts of public enemies; orders or restraints
of any kind of government of the United States or any state thereof or any of their departments,
agencies, or officials, or of any civil or military authority; insurrection; civil disturbances; riots;
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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epidemics; landslides; lightning; earthquakes; subsidence; fires; hurricanes; storms; droughts;
floods; arrests, restraints of government and of people; explosions; and partial or entire failure of
utilities. Failure to settle strikes, lock-outs and other disturbances of employer/employee
relations or to settle legal or administrative proceedings by acceding to the demands of the
opposing Party or Parties, in either case when such course is in the judgment of and unfavorable
to a Party shall not constitute failure to use its best efforts to remedy such a condition.
9.24. Conflict of Interest. This Agreement is subject to A.R.S. S 38-511, which provides for
cancellation of contracts in certain instances involving conflicts of interest.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last date set forth
below their respective signatures.
TOWN:
OWNER:
THE TOWN OF MARANA, an Arizona
municipal corporation
FIDELITY NATIONAL TITLE AGENCY, INC, an
Arizona corporation, as Trustee under Trust
No. 60,182 and not in its corporate capacity
By:
Ed Honea, Mayor
Date:
By:
Name & title:
Date:
ATTEST:
Jocelyn C. Bronson, Clerk
ApPROVED AS TO FORM:
Frank Cassidy, Town Attorney
STATE OF ARIZONA)
ss
County of Pima )
The foregoing instrument was acknowledged before me on by , the
of FIDELITY NATIONAL TITLE AGENCY, INC, an Arizona corporation,
as Trustee under Trust No. 60,182 and not in its corporate capacity.
My commission expires:
Notary Public
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CASCADA SPECIFIC PLAN DEVELOPMENT AGREEMENT
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MEETING DATE:
May 16, 2007
AGENDA ITEM:
TOWN COUNCIL
MEETING
INFORMATION
TOWN OF MARANA
J.3
TO: MAYOR AND COUNCIL
FROM: Kevin Kish, AICP, Planning Director
SUBJECT: Resolution No. 2007-83: Relating to Development; approving and
authorizing a preliminary plat for Marana 59.
DISCUSSION
Reauest
The applicant requests preliminary plat approval of a 58-lot single family detached residential
subdivision.
Location
The property is generally located west of Hartman Road and Yz mile south of Linda Vista
Boulevard.
Zonin!!
On July 19, 1994 Town Council approved Ordinance 94.09, which rezoned 100 acres (including
the subject property) of vacant land located near Hartman Lane and Overton Road (a parcel of
land located today between the Hartman Vistas and Hartman Ten Subdivision) from "E"
(Transportation) to "R-8" (Single Family Residential, minimum 8,000 square foot lot size). The
rezoning was subject to six conditions (Ordinance No. 94.09) and adherence to the tentative
development plan.
On February 21, 2006 Town Council approved resolution 2006-32 that modified Ordinance
94.09 by removing conditions one (1) and six (6) and altered the lot layout shown on the
tentative development plan. The purpose of the ordinance modification was to allow for the
reconfiguration of the lots and adjustment of open space designation.
The proposed subdivision has fewer lots than originally planned, reduced from 172 (3 RAC) to
58 (.99 RAC). The preliminary plat proposes a mix of lot sizes with the smallest lot equaling
8,015 square and the average lot size equaling 9,012 square feet. All residential units will be
subject to the Town of Marana residential design standards.
Transportation
The project proposes one point of ingress/egress off Hartman. The internal circulation will
contain private streets with a gated entrance. The Planning Commission approved a design
exception for the single point of access and modification of the Town's typical local street cross
section at the April 25, 2007 meeting.
051607 Malana 59 PP TC.doc
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Open Space and Benefit Fee Area
The subdivision provides approximately 34 acres (approximately 59% of the net area of the
project) for natural and functional open space. The subdivision is subject to the Park and South
Transportation impact fees.
ATTACHMENTS
Location map and plat reduction
RECOMMENDATION
Staff has reviewed the request against the requirements of the Marana Land Development Code,
Ordinance 94.09, Resolution 2006-32 and the General Plan. This preliminary plat is in
substantial conformance with all required development regulations. Staff recommends approval
of a preliminary plat for Marana 59.
SUGGESTED MOTION
I move to approve Resolution No. 2007-83.
-2-
051607 Marana 59 PP TC.doc
MARANA RESOLUTION NO. 2007-83
RELATING TO DEVELOPMENT; APPROVING AND AUTHORIZING A
PRELIMINARY PLAT FOR MARANA 59.
WHEREAS, Marana 59, L.L.C., the owner of Marana 59, has applied for approval of a
preliminary plat for an 58-lot single-family home subdivision on 58.8 acres, including lots 1
through 58 and common areas "A" "B" and "C", and is generally located west of Hartman Road
and Yz mile south of Linda Vista Boulevard within a portion of Section 23, Township 12 south,
Range 12 east.; and
WHEREAS, the Marana Planning Commission at their regular meeting held on April 25,
2007, and at said meeting voted 6-0 (Winger excused) to recommend that the Town Council
approve said preliminary plat;
WHEREAS, the Marana Town Council, at their regular meeting on May 16, 2007,
determined that the Marana 59 preliminary plat should be approved.
NOW, THEREFORE, BE IT RESOLVED by the Mayor and Council of the Town of
Marana, Arizona, that Marana 59 preliminary plat is hereby approved.
PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona,
this 16th day of May, 2007.
ATTEST:
Ed Honea, Mayor
Jocelyn C. Bronson
Town Clerk
APPROVED AS TO FORM:
Frank Cassidy, Town Attorney
Marana Resolution No. 2007-83
MEETING DATE: May 16, 2007
AGENDA ITEM: J. 4
TOWN COUNCIL
MEETING
INFORMATION
TOWN OF MARANA
TO: MAYOR AND COUNCIL
FROM: Jane Fairall, Deputy Town Attorney
SUBJECT: Resolution No. 2007-84: Relating to Real Estate; establishing the
Learning Farm; approving and authorizing the Mayor to execute
a lease and use agreement with the Community Food Bank relat-
ing to the Learning Farm; and declaring an emergency.
DISCUSSION
This item proposes to establish as the Learning Farm the farm fields associated with the assign-
ment of the State land lease to the Town for the Heritage Park. This item also provides for the
lease of the Learning Farm to the Community Food Bank.
The Town desires to establish the Learning Farm as an operating farm, where fruits and vegeta-
bles can be grown and gardening classes and similar opportunities can be provided for citizens.
The proposed Heritage Park Farm Lease and Use Agreement establishes parameters for the
Community Food Bank's use of the Learning Farm, including setting forth mandatory days of
operation.
Currently, the Town and the Community Food Bank have a Sublease Agreement approved by
the Arizona State Land Department, authorizing the sublease of one of the farm fields (Field #3)
to the Community Food Bank. The Town intends to apply for an additional Sublease Agreement
for the sublease of Fields #1 and #2 to the Community Food Bank. Resolution No. 2007-82 au-
thorizes the Mayor to execute the proposed lease and use agreement subject to the State Land
Department's approval of the additional Sublease Agreement.
ATTACHMENTS
Exhibits A & B, Map and Land Use Summary; Heritage Park Farm Lease and Use Agreement.
RECOMMENDATION
Staff recommends the adoption of Resolution No. 2007-84, approving and authorizing the Mayor
to execute the Heritage Park Farm Lease and Use Agreement with the Community Food Bank,
upon approval of the additional Sublease Agreement by the Arizona State Land Department.
SUGGESTED MOTION
I move to adopt Resolution No. 2007-84.
{00004727.DOC /}
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MARANA RESOLUTION NO. 2007-84
RELATING TO REAL ESTATE; ESTABLISHING THE LEARNING FARM; APPROVING
AND AUTHORIZING THE MAYOR TO EXECUTE A LEASE AND USE AGREEMENT
WITH THE COMMUNITY FOOD BANK RELATING TO THE LEARNING FARM; AND
DECLARING AN EMERGENCY.
WHEREAS the farm fields located on land leased by the Town from the Arizona State
Land Department for use as the Heritage Park are hereby established as the Learning Farm; and
WHEREAS the Town desires that the Learning Farm be an operating farm and a
community resource for gardening classes, the dissemination of information regarding food
production, and similar opportunities; and
WHEREAS the Town desires to have the Community Food Bank lease and use the
Learning Farm for the stated activities in exchange for operating the Learning Farm and opening
it up to the public; and
WHEREAS the Town has subleased one field, known as Field #3, to the Community
Food Bank pursuant to a Sublease Agreement approved by the Arizona State Land Department
and the Town desires to sublease two additional fields, known as Fields #1 and #2, to the
Community Food Bank and the Town intends to request an additional Sublease Agreement from
the Arizona State Land Department for the sublease of Fields #1 and #2; and
WHEREAS, the Mayor and Council of the Town of Marana find that the best interests of
the public are served by entering into the Heritage Park Farm Lease and Use Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE
TOWN OF MARANA, ARIZONA, that the Heritage Park Farm Lease and Use Agreement, and
its Exhibits, between the Town of Marana and the Community Food Bank, attached to and
incorporated by this reference in this resolution as Exhibit A, is hereby authorized and approved,
and the Mayor is hereby authorized to execute it for and on behalf of the Town of Marana upon
approval by the Arizona State Land Department of an additional Sublease Agreement between
the Town and the Community Food Bank for Fields #1 and #2.
BE IT FURTHER RESOLVED THAT since it is necessary for the preservation of the
peace, health and safety of the Town of Marana that this resolution become immediately
effective, an emergency is hereby declared to exist, and this resolution shall be effective
immediately upon its passage and adoption.
{00004728.DOC f}
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PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF
MARANA, ARIZONA, this 16th day of May, 2007.
Mayor Ed Honea
ATTEST:
APPROVED AS TO FORM:
Jocelyn C. Bronson, Town Clerk
Frank Cassidy, Town Attorney
{00004728.DOC I}
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Heritage Park Farm Lease and Use Agreement
This agreement is entered into by and between the Town of Marana, an Arizona
municipal corporation ("Town") and Community Food Bank, Inc., an Arizona 501(c)(3)
non-profit corporation ("Community Food Bank"). The Town and the Community Food
Bank are sometimes referred to collectively as the Parties, either of which is sometimes
individually referred to as a Party.
RECITALS
A. The Community Food Bank, incorporated in 1975, is a corporation that
acquires, stores and distributes 14 million pounds of food annually throughout
Pima County. The Community Food Bank strives to reduce the impact of hunger
and chronic malnutrition through programs of advocacy and nutrition education.
B. The Town has received the assignment of a lease to State land on Heritage
Park Drive just north of the Santa Cruz River where the Town is developing the
Heritage Park.
C. The State land includes several farm fields. Those fields identified as
Fields #1, #2 and #3 in the drawing attached to and incorporated in this
Agreement as Exhibit A, have been leveled and maintained by the Town and are
commonly known as the "Learning Farm."
D. The Town has subleased Field #3, to the Community Food Bank pursuant
to a Sublease Agreement approved by the Arizona State Land Department. The
Town desires to sublease Fields #1 and #2 to the Community Food Bank and
intends to request an additional Sublease Agreement from the Arizona State Land
Department to sublease these fields to the Community Food Bank.
E. The Town desires that the Learning Farm be an operating farm where
fruits and vegetables can be grown and gardening classes and similar
opportunities are made available to the citizens of Maran a and the community.
F. The Town currently does not have the resources available to provide the
amount of labor and coordination required to run and operate a farming operation
at the Learning Farm.
G. The Community Food Bank desires to operate a fruit and vegetable
operation and has the resources to offer gardening classes and similar
opportunities to the citizens of Marana and the community and the Town desires
to see the Learning Farm become a viable operation at the Heritage Park.
H. The Town finds that the benefit to the Town resulting from the
Community Food Bank use of the Learning Farm in accordance with the terms of
this Agreement have a value at least equal to the fair market rental value of rent of
{0000472 1. DOC /}
""""'~"'"~"'~W_.,","4"~>",..."~",-".~~"~...,,,._,",,,",~,,,,~,,,~_""
the farm fields which will be used by the Community Food Bank under this
Agreement.
AGREEMENT
Now, therefore, based on the foregoing recitals which are incorporated here by
reference, the Parties agree as follows:
1. Lease. The Town hereby leases to the Community Food Bank those
portions of the Learning Farm identified in paragraph 2, below, as the "Leased Property,"
from the effective date of this Agreement until termination as set forth in paragraph 12,
below, for no monetary rent, subject to the Community Food Bank's performance of its
obligations under this Agreement.
2. Leased Property. The areas of the Learning Farm which are subject to
this Agreement are the following (all of which collectively are referred to in this
Agreement as the "Leased Property"):
a. Exclusive use of two farm fields (Fields #1 and #3) identified as Food
Bank Exclusive Use areas in the map attached to and incorporated in this
Agreement as Exhibit B.
b. Joint use with the Town of Marana of the farm field (Field #2)
identified as Town of Marana Food Bank Joint use on Exhibit B.
c. Reasonable parking in the parking lot located just south of and adjacent
to the Heritage House.
3. Use. The Community Food Bank shall use the Learning Farm for the
production of food crops to be distributed through their networks and in cooperation with
the Marana Food Bank and for disseminating information regarding food production and
gardening.
4. Minimum Hours of Operation. During the term of this agreement, the
Community Food Bank shall staff and open the Learning Farm to the public with regular
posted hours that may vary according to seasons at least Monday through Friday, except
New Year's Day, Martin Luther King, Jr. Day, President's Day, Memorial Day,
Veteran's Day, Thanksgiving Day, the Friday following Thanksgiving Day, and
Christmas Day. These hours and days may be modified if approved in writing by the
Parks and Recreation Director.
Farm.
5. Utilities. The Town shall pay all utility fees associated with the Learning
{0000472 I. DOC /}
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6. Repairs and Maintenance. The Community Food Bank shall maintain
and repair all fences, gates, irrigation systems (not including the well and pump), and
equipment supplied by the Community Food Bank for the Learning Farm.
7. Landscape Maintenance. The Community Food Bank shall maintain all
landscaping, gardens, pathways, and fence lines associated with the exclusive use areas
of the Leased Property at the Learning Farm.
8. No Modifications. The Community Food Bank shall not modify the
Learning Farm or any of the other improvements around or in any way associated with
the Learning Farm without the prior written approval of the Parks and Recreation
Director.
9. Indemnity and Hold Harmless. The Community Food Bank shall
indemnify and hold harmless the Town of Marana, its officers, employees, and agents
from and against any and all claims relating to the Community Food Bank's use of the
property or its equipment on the property, and shall maintain insurance to cover any
losses resulting from the Community Food Bank's use of the Learning Farm. Insurance
policies should have a minimum coverage of $1,000,000 per occurrence and shall name
the Town as an additional insured.
10. Conflict of Interest. This agreement is subject to A.R.S. ~ 38-511,
which provides for cancellation of contracts by government entities in certain instances
involving conflicts of interest.
11. Effective Date.
Party's signature below.
This agreement is effective on the date of the last
12. Termination. This agreement may be terminated upon thirty days'
notice by either Party to the other Party.
[Remainder of page intentionally left blank.]
{0000472I.DOC /}
-----"',...,~.~"~~..,-,,_,....'""_.".~,.__~~...,"~...,,""~_..,,,u,.._,;..~...;".."~,_"_....,....,,,
IN WITNESS WHEREOF, the Parties have executed this agreement as of the
date set forth below their respective signatures.
THE TOWN OF MARANA
an Arizona municipal corporation
THE COMMUNITY FOOD BANK
an Arizona not-for-profit corporation
By:
Ed Honea, Mayor
By:
Printed:
Its:
Date:
Date:
ATTEST:
Jocelyn C. Bronson, Town Clerk
APPROVED AS TO FORM:
Frank Cassidy, Town Attorney
{OOO0472I.DOC I}
....,,,...'"'"-~~~"'~--"'.~~-'""~_~~_,...'"...u,",'_.<,..,..v.,., '_'~"""'~"'''''''''~"''''~'W"'''''''''''_'
May 16,2007
AGENDA ITEM: L.1
TOWN COUNCIL
MEETING
INFORMATION
MEETING DATE:
TOWN OF MARANA
TO: MAYOR AND COUNCIL
FROM: Michael A. Reuwsaat, Town Manager
SUBJECT: State Lee:islative Issues: Discussion/DirectionlAction regarding all
pending bills before the Legislature
DISCUSSION
This item is scheduled for each regular council Meeting in order to provide an opportunity to
discuss any legislative item that might arise during the current session of the State Legislature.
Periodically, an oral report may be given to supplement the Legislative Bulletins.
ATTACHMENTS
Legislative Bulletin, Issues 17 and 18.
RECOMMENDATION
Upon the request of Council, staff will be pleased to provide recommendations on specific
legislative issues.
SUGGESTED MOTION
Mayor and Council's pleasure.
lCB/05/08/2007/9:13 AM
League of Arizona
Cities AND Towns
IN THIS
ISSUE
Veto Request on I Il9 . . . . . .. I
Construction Sales Tax Bill
Continues To Wait For
Vote..................... I
Payday Loans - A League
Resolution ................ I
Defensive Driving School
Bill Passes The Senate . . . . . . . 2
Liquor Bill Sponsor Concurs . . 2
Impact Fees Bill Signed
By The Governor . . . . . . . . . . . 2
Sex Offenders Residency
Restrictions - A League
Resolution ................ 2
The Weekly Spotlight:
Rep. David Bradley . . . . . . . . . 3
Attachments:
I. Letter To Governor Napolitano
RE: SBlll9
Legislative Bulletin is published by the
League of Arizona Cities and Towns.
F olWard your comments or suggestions
to:
League of Arizona Cities & Towns
1820 West Washington Street
Phoenix, Arizona 85007
Phone: 602-258-5786
Fax: 602-253-3874
Ernail: league@azleague.org
Internet: www.azleague.org
Issue 17, April 27, 2007
VETO REQUEST ON 1119
Earlier this week we sent a letter to the Governor asking her to veto Senate Bill
1119 - water; overlapping service providers. Our concerns center primarily on the
preemption of local government's water conservation practices. The bill
essentially restricts the ability of municipalities to implement water conservation
measures within their municipal borders, in areas that are serviced by irrigation
districts. Additionally, the bill creates a situation in which some municipal
residents would be subject to drought restrictions while others residents that live
within the overlapping service area would have no restrictions. Clearly this is bad
water policy and bad environmental policy, not to mention unfairly thwarting
local control to benefit a small constituency.
For your edification, the League's veto letter is attached to this issue of the
Bulletin. If you have not done so, please contact the Governor's Office and ask her
to veto SB 1119. Call (602) 542-4331 or dial toll free at 1-(800) 253-0883.
CONSTRUCTION SALES TAX BILL CONTINUES TO
WAIT FOR VOTE
Senate Bill 1544 was held twice this week from a House Third Read vote. This
continues the pattern for this bill, which has been held several times over the past
few weeks. While this is a good sign that our message is having an impact, please
continue to talk to your members about opposing this bill.
PAYDAY LOANS - A LEAGUE RESOLUTION
Representative Marian McClure continues her pursuit of the payday loan industry
with a strike everything amendment to Senate Bill 1446. After running into some
obstacles with earlier attempts at regulating the deferred presentment business,
Ms. McClure was able to amend SB1446, a shoplifting bill. Now this bill targets
the payday loan business.
SB1446 prohibits Internet loans from unlicensed providers and requires all payday
loan businesses to offer repayment plans. In addition, the bill stipulates that
consumer credit counseling information is available on-site and that loan
companies make reasonable efforts to verify if a customer has a pre-existing loan
or an incomplete repayment plan at another loan company. It also requires the deferred presentment industry to
make annual reports to the State Banking Department.
._--""_.""'-"''-'-~''''.~~-"'''-==_=~,,",w,.~..._,,~.
Payday Loans - A League Resolution (cont'd.)
Of course there had to be some compromise with the
industry to get this bill moving again.
Representative McClure had to agree to eliminate
the sunset provision for the industry in order to get
these other provisions in. The original sunset would
have been 2010. There were attempts in floor
session this week to get a sunset back on, but those
were defeated. The bill awaits a Third Read in the
House of Representatives.
DEFENSIVE DRIVING SCHOOL
BILL PASSES THE SENATE
House Bill 2001, which requires courts to accept
submissions from any state-certified defensive
driving school, passed the Senate this week with a
24-3 vote. This bill was initially of great concern to
our courts due to large administrative impacts. The
proponents of the bill worked with the municipal
courts and the Administrative Office of the Courts to
create amendments that address those concerns.
This bill will now go back to the House, where the
sponsor, Speaker Jim Weiers, will have the option to
accept the changes or take the bill to conference
committee. The changes will likely be accepted and
this bill will go to a final vote in the House.
LIQUOR BILL SPONSOR
CONCURS
We told you last week that we reached consensus on
House Bill 2391, the liquor omnibus bill. This
week, the bill's sponsor, Representative Rich
Crandall, announced he will concur with the
Senate amendments and not take the bill to a
conference committee. This was expected, yet still
welcome news because our efforts to take care of
our concerns will stay on the bill. Many thanks to
Reo. Crandall for his leadership, listening to our
concerns and pledging to work with us on this very
difficult issue.
IMPACT FEES BILL SIGNED BY
THE GOVERNOR
The League's impact fees legislation, Senate Bill
1423, was signed by the Governor earlier this week
and will become law on the general effective date
(90 days after the end of session). This bill was the
League's response to the Governor's veto letter from
last year's impact fees bill. In that letter, she
requested 'consensus legislation' that improves the
clarity of the impact fees process while maintaining
local control. Many people put a lot of time and
hard work into crafting this legislation and
negotiating it through the process. These people
deserve our thanks:
Mary Okoye, City of Tucson Government
Relations
Jason Baran, City of Tucson Government
Relations
Scott Butler, City of Mesa Government
Relations
Peter Culp, Attorney representing the City
of Phoenix
Dana Tranberg, City of Glendale
Government Relations
Andrew McGuire, Attorney representing the
Town of Fountain Hills and the City of
Avondale
Senate President Tim Bee also deserves our
recognition and appreciation for taking on the
daunting task of negotiating impact fees legislation
between the municipalities and the development
community. As sponsor of the bill, his leadership
allowed for faithful negotiations and a consensus
bill. A thank you in also in order to Brian
Townsend, Senate Majority Policy Advisor, for
his unbiased position while chairing the many
meetings and keeping the bill moving smoothly
forward.
SEX OFFENDERS' RESIDENCY
RESTRICTIONS - A LEAGUE
RESOLUTION
Senate Bill 1555, residency restrictions is awaiting a
final read before going to the Governor. This bill
sets a boundary of 1000 feet between a school or
child care facility and a residency of a registered sex
offender. Look for this to be final read early next
week.
.,--..""......""""".,~,~......,"._<<"""-~~-"",~''''''''~,,~..,,"''-''''',.''"">''''--,....._...'-,.."".;....',--.~,.<.~
2
April 27, 2007
The Weekly Spotlight -
Representative
David Bradley
Representative David Bradley,
Legislative District 28, was born in
Seattle, Washington. A Navy
veteran for eight years, Mr.
Bradley has held the offices of
Chair and Vice-Chair of the Pima County
Democratic Party and President of the Democrats of
Greater Tucson. With Masters Degrees in Business
and Education, Mr. Bradley has been a Certified
Professional Counselor since 1984 and is currently
President and Executive Director of La Paloma
Family Services.
Representative Bradley is a member of the Tucson
Chamber of Commerce, the Tucson Rotary, the
Vestry St. Michael and All Angels Church, the
Arizona Community Action Association and the
American Legion. He and his wife Debra have four
children and five grandchildren.
How do you see local government impacting
people's lives?
Local government is the closest "ear" to the people
and should be the most responsive and connected to
people, literally at the grass roots level. Local
government has an all-pervasive effect on people's
lives; as a result the central issue should be
facilitating participation as broadly and consistently
as possible. Generally, the role of state government
should be to support local control whenever
practical.
What is one issue you see as particularly important
to local government this session?
While there are a host of local government issues
from cable TV rights, payday loans, I think the most
salient topic should be transportation. The state
should be providing the long term planning that
compliments local planning to address the issues of
our state's inevitable growth.
Tell us something about your family and friends
(favorite things to do with children,friends, etc.?)
I am the father of four and the grandfather of five. I
simply enjoy being with my family regardless of the
activity.
What's afavorite vacation spot?
I don't take as many vacations as I probably should
but when I do I most enjoy being near the ocean.
What's afavorite hobby?
Recently I have become re-addicted to working out
every day, so along with reading and being a little
bit of a baseball nut that is my current favorite
activity
Thank you for your time.
Thank you for the opportunity.
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3
April 27, 2007
League of Arizona
~C............~
ltIes AND .LOWns
1820 vv. ""'ashingtQll' Phoenix:,AZ 8?OO7. Phone: (602) 258-5786. Fax: (602) 253-3874
Ernail: league@mg.statc.az.us. Web site: www.arJcague.org
April 25, 2007
The Honorable Janet Napolitano
Governor of Arizona
1700 West Washington Street
Phoenix, Arizona 85007
Re: SB 1119 - water; overlapping service area providers
Dear Governor Napolitano:
The League of Arizona Cities and Towns requests that you veto SB 1119 for a variety of reasons.
First, it directly conflicts with the state's Groundwater Management Act regarding water conservation and drought
management. The bill restricts the ability of municipalities to implement water conservation plans within their
municipal borders if water is provided by an irrigation district, regardless of whether water is actually used for
irrigation or for residential uses. SB 1119 creates a situation in which some municipal residents would be subject to
conservation requirements and others would have no restrictions. In Arizona, we must all cooperate to conserve our
precious water resources. Creating a situation in which some residents must conserve and others do not have to
undermines that message.
Secondly, SB 1119 affects Arizona's ability to implement drought plans. In a municipality that has a drought plan,
under the provisions of SB 1119, there would be areas of the city that would have no responsibility to take measures to
conserve water during a drought. Irrigation districts, even if they serve non-agricultural uses, are not required to
prepare drought plans.
Additionally, our state has taken significant steps toward ending groundwater mmmg but SB 1119 perpetuates
groundwater mining by the Roosevelt Water Conservation District. Use of groundwater inconsistent with the intent of
the Groundwater Code harms other water users. Groundwater is our most precious public resource.
This bill was drafted to punish one city and benefit one irrigation district whose business model depends on the sale of
large quantities of water. No thought was given to the broader impacts on Arizona's water management goals. This
issue should not be addressed as a Town of Gilbert vs. Roosevelt Water Conservation District issue, but instead should
be addressed in the context of how we best manage water supplies for all Arizona users for the future. Past
assumptions regarding the role of irrigation districts may no longer be valid as we look to managing our State's future,
particularly in urbanized areas where agricultural land and the conversion of the agricultural water rights is moving to
municipal purposes. This bill proposes to perpetuate an irrigation district without consideration of the change in use
from historic irrigation practices to urban water management requirements.
Finally, SB 1119 would prohibit a municipality from enacting any ordinance, regulation or provisions that would limit
a landowner's right to use water delivered by an irrigation district. This language is very broad and could apply not
only to conservation requirements, but to land use planning, setting water rates and potentially any ordinance that
could be construed as limiting water use.
SB 1119 is not good public policy for the State of Arizona and deserves your veto.
Sincerely,
Ken Strobeck
Executive Director
4
April 27, 2007
League of Arizona
Cities AND Towns
IN THIS
ISSUE
Construction Sales Tax Bill
Up For A Vote (Again) ...... I
Budget Proposals . . . . . . . . . .. I
HB 2784 and SB 1038 . . . . . .. I
Transportation Impacts ...... 2
Governor Vetoes SB 1119. . . . 3
Defensive Driving School
Bill Awaiting Governor's
Action. . . . . . . . . . . . . . . . . . . . 3
It's Resolution Time Again. .. 3
The Weekly Spotlight:
Rep. Adam Driggs . . . . . . . . . . 4
Attachments:
I. Veto letter from Governor
Napolitano
RE: S81119
Legislative Bulletin is published by the
League of Arizona Cities and Towns.
Forward your conunents or suggestions
to:
League of Arizona Cities & Towns
1820 West Washington Street
Phoenix, Arizona 85007
Phone: 602-258-5786
Fax: 602-253-3874
Email: league@azleague.org
Internet: www.azleague.org
Issue 18, May 4, 2007
CONSTRUCTION SALES TAX BILL UP FOR A VOTE
(AGAIN)
Senate Bill 1544, the notorious construction sales tax bill that requires cities to
spend any construction sales tax revenues derived from a varied rate on new
development infrastructure, appears on the House Third Read calendar on
Monday, May 7th. Your calls, e-mails and letters have made a difference thus far
because the bill continually gets retained on the calendar and not voted upon; a
sign the measure does not have the votes to pass. However, please continue to
talk to your members about opposing this bill. Contact League staff if you
need help contacting your Representatives.
BUDGET PROPOSALS
It's budget time at the Legislature! Both the House and Senate versions of the
budget have drawn considerable acrimony from their own respective members.
However, the majority of the budget bills do not have a direct impact on cities and
towns, as they are state agency bills. Our analysis will focus on those bills that we
see as more pertinent to municipalities.
HB 2784 AND SB 1038
These are the tax relief bills. The House version has approximately $60 million in
credits where the Senate has only about $7 million. Here is a side-by-side
comparison of the two bills. The dollar amounts shown are the revenue sharing
impacts of the bills, not the dollar amount of the tax cuts/credits per se.
HB 2784 AND SB 1038 (cont'd.)
House Proposal Senate Proposal Est. Rev. Sharing Est. Rev. Sharing
Impact - House Impact - Senate
l3usiness Personal Property Tax l3usiness Personal Property N/A- burden shift N/ A- burden shift
Deceleration Ifax Deceleration
~ollege Savings Plans 1.5 million Not in Senate Budget
Deduction
i\ccelerate class one assessmen 'i/A- burden shift Not in Senate Budget
atio reduction
R&D tax credits $750,000 \lot in Senate Budget
rorporate Income Tax Rate 11>4.2 million \lot in Senate Budget
Reduction - 2.5%
nsurance Premium Tax Credit 0 Not in Senate Budget
l..-haritable Organizations Tax 540,000 Not in Senate Budget
redit
Total Impact $6.975 million 0
As you can see, the House budget has a minimal effect on municipalities and the Senate's has none.
TRANSPORTATION IMPACTS
Each chamber has a slightly different transportation bill. Coupled with a transfer from the State Highway Fund to
the Statewide Transportation Acceleration Needs account (STAN), there are varying impacts to cities and towns.
The following table illustrates the main points of difference:
ot in House budget
rowth
ate>50%
A
ouse
roposal
ond ext. ot in House bud
*Over the life of the bonds, not in anyone year
** Abbreviations explained below
HB 2781 and SB 1086
These are the general appropriations bills for state agencies. Of significance to municipalities is the shifting of
$62 million from the State Highway Fund to the STAN. Cities are generally opposed to this provision.
House Transportation Bill- HB 2793
This bill establishes a fund for "eligible transit capital projects," (ETCP) which are defined as land, buildings or
motor vehicles or a combination of land, buildings and motor vehicles that are part of the federal transit
administration's rural public transportation program for municipalities with populations of less than fifty thousand
persons and that are included in the transportation improvement plan of a regional association of governments.
2
May 4, 2007
-'---~,~,.~--",.....,'~~.............~,~--.-.----_.,.
Transportation Impacts (contd.)
This money comes from the H.E.L.P fund (Highway
Expansion and Extension Loan Program). Certain
federal funds are excluded from eligibility.
Also under this bill, STAN money can be used to
reimburse interest costs incurred by local
governments for the acceleration of a transportation
project, if certain conditions are met.
Senate Transportation Bill- SB 1097
This bill establishes a new sub-account of STAN,
the "Roads of Regional Significance Congestion
Mitigation" account (RRSCM). Again there are
certain eligibility standards, specifically the
inclusion of such projects in transportation plans and
population growth percentages. For example, one
criterion of eligibility is that municipalities and
counties must exceed their respective average
growth rates by at least fifty per cent in the last five
years. A memorandum of understanding between
participating governmental entities is also a
requirement.
The Senate bill also extends the allowable
repayment period for State Highway Fund bonds
from 20 to 30 years. The House bill has no such
provision.
GOVERNOR VETOES SB 1119
Last week we sent a letter to the Governor asking
her to veto Senate Bill 1119 - water; overlapping
service providers. The Governor took our concerns
to heart and vetoed the bill. The veto letter is
attached to this week's Bulletin. Please take a
moment and call the Governor's office and thank her
for vetoing this bad idea. (602) 542-4331 or dial toll
free at 1-(800) 253-0883.
DEFENSIVE DRIVING SCHOOL
BILL AWAITING GOVERNOR'S
ACTION
House Bill 2001, which requires courts to accept
records from any state certified defensive driving
school, passed the House this week with a 50-6 vote
and is now awaiting the Governor's action. Our
municipal courts had many concerns about the
administrative impacts of the original bill; however,
the proponents worked with the League and the
courts to address those concerns. These provisions
do not become effective until June 2008, giving the
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courts time to plan for the required changes. The
bill also allows the Administrative Office of the
Courts to create rules and guidelines requiring
schools to comply with each court's information
transfer requirements.
IT'S RESOLUTIONS TIME AGAIN
As we near the end of session and the League's
Annual Conference, its time to put the resolutions
process back in the spotlight. The League uses the
resolutions adopted by the Resolutions Committee to
create its Municipal Policy Statement and legislative
agenda for the upcoming year. Packets with more
information will be mailed to each Mayor and
Manager early next week. In the meantime, the
following items should be kept in mind:
* Resolutions should be broadly applicable and
advance our municipal goals.
The resolutions process is designed for
issues that impact a broad section of cities
and towns. Submitted resolutions that
impact only a single city/town or limited
number of cities and towns have less chance
of being adopted. If your city/town has an
issue(s) that just impacts your community,
please notify League staff and we will assist
you with this issue during the legislative
seSSIOn.
* Resolutions must be sponsored by at least 2
municipalities.
Some communities may require council
action to support a resolution. Take this
timing into consideration when finding co-
sponsors.
* Resolutions must be correctly formatted with
all blanks adequately filled in.
Other cities and towns rely on your
information to decide whether or not to
support a resolution. Clear, concise and
complete information is essential.
* Resolutions must be submitted to the League no
later that 5:00 pm July 2,2007.
If you have any questions about Resolutions
or the process in which they are adopted in,
please contact the League office for more
information.
3
May 4, 2007
The Weekly Spotlight-
Representative Adam Driggs
Representative Adam Driggs,
Legislative District 11, is a
lifelong Arizonan. He got an
early introduction to politics, as
his father, John Driggs, was
mayor of Phoenix when the
junior Driggs was in first
grade.
A graduate of ASU law school, Mr. Driggs was with
the Maricopa County Attorney's Office from 1994-
1997 and currently is in private practice and also
runs a small business. He is on his precinct
committee and has assisted with several local
elections. As a legislator he serves as the Vice-Chair
of the Judiciary Committee and sits on three
committees: 1) Commerce; 2) Counties,
Municipalities and Military Affairs; and 3) Ways
and Means. He and his wife Leonore have three
children.
How do you see local government impacting
people's lives?
Local government is responsible for our quality of
life in Arizona. For starters, there are the obvious
vital functions of providing public safety with local
police and fire, sanitation services, and utilities.
But local government also provides parks and
recreational activities for our families, public
libraries, as well cultural opportunities in the arts.
Local government also protects the integrity of our
neighborhoods by establishing zoning and
development policies, approving building permits,
and maintaining our local transportation system. As
the government institution that is closest to the
people, it can easily be said it has the greatest impact
on people's lives.
What is one issue you see as particularly important
to local government this session?
This is a difficult question, because each city and
town in Arizona has a long list of issues that are
important to them. As a legislator, I help create
policies that impact the entire state, yet I represent
an individual district within the state. The district I
represent is Phoenix and Paradise Valley. As the
greater Phoenix area continues to grow, we face
many challenges in my district, particularly in the
areas of transportation and public safety. On a
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statewide level, protecting state shared revenue is an
important issue for all cities and towns.
Tell us something about your family and friends.
I have been married to my wife Leonore for nine
years and we have three children, Emily, 7, J.R., 5
and Charlie, who will turn 1 in August. My wife was
also born and raised in Phoenix. We have many
long-time friends with children about the same ages
as ours, and we love to spend time with them, going
to Disneyland (we have season passes) or spending
time in the White Mountains.
My father was Mayor of Phoenix back when I was
in 1 st grade, and I am sure that he has had some
influence on my pursuing public office and
contributing to my desire to serve my community.
My parents currently live about a mile from my
home and are now my constituents!
What's afavorite vacation spot?
I love Greer, Arizona; it is my favorite place on
earth. My kids love the Disney Cruise-we've been on
three!
What's afavorite hobby?
Outside, I love to ski and hike. Athletically, I am a
lifelong Sun Devil and Suns fan. I also love history;
particularly family history, Arizona history, as well
as being a Civil War buff.
Thank you for your time.
Thanks for this opportunity.
4
May 4, 2007
STATE OF ARIZONA
JANET NAPOLITANO
GOVERNOR
OFFICE OF THE GOVERNOR
MAIN PHONE: 602-542-4331
FACSIMILE: 602-542-760 I
1700 WEST WASHINGTON STREET, PHOENIX, AZ 85007
May 1, 2007
The Honorable Timothy S. Bee
Senate President
Arizona State Senate
1700 West Washington
Phoenix, Arizona 85007
Re: Senate Bill 1119: water; overlapping service providers
Dear President Bee:
Today I vetoed Senate Bill 1119, which would have prohibited municipalities from
limiting the use by landowners within an irrigation district of water from an irrigation district
with an overlapping service area.
Senate Bill 1119 would preempt local governments from coordinating services, and
hamper their ability to plan for future growth. It would also eliminate incentives for
municipalities and irrigation districts to work together to provide water efficiently to residents.
Accordingly, municipalities across our state oppose Senate Bill 1119, as do environmental and
water conservation leaders.
For these and other reasons, I have vetoed Senate Bill 1119.
Yours very truly,
l~:':~
Governor
IN:TAN/jm
cc: The Honorable Jim Weiers
The Honorable Chuck Gray
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