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HomeMy WebLinkAboutResolution 2023-012 Approving and Authorizing the Mayor to Sign an Agreement for Construction of Water Facilities Under Private Contract Crossroads at Gladden MARANA RESOLUTION NO. 2023-012 RELATING TO WATER; APPROVING AND AUTHORIZING THE MAYOR TO SIGN AN AGREEMENT FOR CONSTRUCTION OF WATER FACILITIES UNDER PRIVATE CONTRACT WITH TANGERINE 2021, LLC FOR CROSSROADS AT GLADDEN WHEREAS, Tangerine 2021, LLC desires for the Town to provide water services to the land described and depicted in the Final Block Plat for Crossroads at Gladden Blocks 1 - 8, recorded in the Pima County Recorder's office on December 10, 2021 at Sequence 20213440123; and WHEREAS, Town staff has negotiated an Agreement for Construction of Water Facilities Under Private Contract with Tangerine 2021, LLC for Crossroads at Gladden; and WHEREAS, the Mayor and Council find that the terms and conditions of the agreement are in the best interests of the Town. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, that the Agreement for Construction of Water Facilities Under Private Contract with Tangerine 2021,LLC for Crossroads at Gladden in substantially the form included with the agenda backup material accompanying this resolution is hereby approved, the Mayor is hereby authorized and directed to sign it for and on behalf of the Town of Marana, and the Town's Manager and staff are hereby directed and authorized to undertake all other and further tasks required or beneficial to carry out the terms, obligations, and objectives of the agreement. - 1 - Resolution No. 2023-012 PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona, this 7th day of February 2023. Mayor Ed Honea ATTEST: APPROVED AS TO FORM: �► David L. Udall, Town Clerk Ja - :irall, Town Attorney MARANA AZ ESTABLISHED 1977 - 2 - Resolution No.2023-012 TOWN OF MARANA AGREEMENT FOR CONSTRUCTION OF WATER FACILITIES UNDER PRIVATE CONTRACT Crossroads at Gladden THIS AGREEMENT (this "Agreement") is entered into by and between the TOWN OF MARANA, an Arizona municipal corporation (the "Town"), and TANGERINE 2021, LLC, a Delaware limited liability company (the "Developer"). The Town and the Developer are sometimes collectively referred to as the "Parties," each of which is sometimes individually referred to as a"Party." RECITALS A. This Agreement is entered into and authorized pursuant to Title 14 of the Marana Town Code, as it may be amended from time to time ("Marana Town Code Title 14"). B. The Developer desires for the Town to provide water service to the land described and depicted in the Final Block Plat for Crossroads at Gladden Blocks 1 —8,recorded in the Pima County Recorder's office on December 10, 2021 at Sequence 20213440123, which land area is referred to in this Agreement as the "Crossroads Property." C. The Developer is the master developer of the Crossroads Property. D. The Town and the Developer are parties to "The Crossroads at Gladden Development Agreement," recorded in the Pima County Recorder's office on April 22, 2022 at Sequence 20221120085 (the "Crossroads at Gladden Development Agreement") and approved by Marana Resolution No. 2022-039, adopted by the Marana Town Council on April 19, 2022. E. The Crossroads at Gladden Development Agreement governs development of the Crossroads Property and requires the Developer to install potable water distribution infrastructure. F. As a condition of securing water service from the Town and as more particularly set forth herein, the Developer is required to install those certain water infrastructure improvements (the"Crossroads Trail Water Facilities")in accordance with the required plans, specifications, and materials as outlined and depicted in the "Water Plans for Crossroads Trail," Plan No. W-2208-017, sealed by Rick Engineering Company on October 12, 2022 and approved by the Marana Water Department on November 1,2022(the"Crossroads Trail Water Facilities Plans"). G. The Town and Gladden Phase II, LLC, a Delaware limited liability company ("Gladden"), are parties to that certain "Gladden Farms II Development Agreement," recorded on March 10, 2006 in Sequence No. 20060470594, as it may be amended from time to time(the "Gladden Farms II Development Agreement"). 00083972.DOCX/51 H. The Gladden Farms II Development Agreement governs development of the property set forth in the Gladden Development Agreement (the"Gladden Farms II Property") and Gladden has agreed to install certain water infrastructure improvements (the "Clark Farms Boulevard Water Facilities") in accordance with the required plans, specifications, and materials as outlined and depicted in the Water Distribution to Serve Gladden Farms — Clark Farms Boulevard Plan, Plan No. ENG2111-002, sealed by the Rick Engineering Company on January 11, 2022 and approved by the Town of Marana Water Department on January 24, 2022, as amended and sealed by the Rick Engineering Company on August 3,2022 (the"Clark Farms Boulevard Water Facilities Plans"). I. The Crossroads Trail Water Facilities and the Clark Farms Boulevard Water Facilities are sometimes collectively referred to herein as the "Water Facilities". The Crossroads Trail Water Facilities Plans and the Clark Farms Boulevard Water Facilities Plans are sometimes collectively referred to herein as the "Facilities Plans." The Facilities Plans are on file with the Marana Water Department. J. The Developer desires for the Town to take ownership of, operate, and service the Crossroads Trail Water Facilities. K. The Town is willing to accept the Crossroads Trail Water Facilities and permit them to be connected to the Town water system provided they meet Town standards and the work under the Crossroads Trail Water Facilities Plans is done in accordance with Town requirements. AGREEMENT Now, THEREFORE, in consideration of the foregoing premises and the mutual covenants set forth in this Agreement, the Parties hereby agree as follows: 1. The Water Facilities 1.1. Installation of Clark Farms Boulevard Water Facilities; responsibilities of the Developer in relation to the Clark Farms Boulevard Water Facilities. The provisions for water service by the Town to the Gladden Farms II Property is addressed in the Gladden Farms II Development Agreement. As of the date of this Agreement, Gladden, as developer of the Gladden Farms II Property, is currently causing the construction and installation of the Clark Farms Boulevard Water Facilities. Developer and Gladden are related parties and Developer agrees to cause the completion of the Clark Farms Boulevard Water Facilities if the Clark Farms Boulevard Water Facilities are not fully completed by Gladden in substantial conformance with the Clark Farms Boulevard Water Facilities Plans. Developer shall ensure (or shall cause Gladden to ensure) that the Clark Farms Boulevard Water Facilities conform to the design standards of the City of Tucson Water Department and the Town of Marana Town Code Title 14 and special specifications and details as approved by the Town and by this reference made a part of this Agreement. The Clark Farms Boulevard Water Facilities Plans include a plan note identifying the Clark Farms Boulevard Water Facilities as new water facilities and show any and all alterations to the existing water system. Construction and installation of the Clark Farms Boulevard Water Facilities in accordance with the Clark Farms Boulevard Water Facilities Plans, including without limitation all labor, materials, equipment, supplies, and tools required for the construction and installation, is referred to in this Agreement as the "Clark Farms Boulevard Water Facilities Work." 00083972.DOCX/52 1.2. Installation of the Crossroads Trail Water Facilities. Developer has designed and shall cause the installation,at the Developer's own expense,the Crossroads Trail Water Facilities as depicted in the Crossroads Trail Water Facilities Plans. The Crossroads Trail Water Facilities shall conform to the design standards of the City of Tucson Water Department and the Town of Marana Town Code Title 14 and special specifications and details as approved by the Town and by this reference made a part of this Agreement. The Crossroads Trail Water Facilities Plans include a plan note identifying the Crossroads Trail Water Facilities as new water facilities and show any and all alterations to the existing water system. Construction and installation of the Crossroads Trail Water Facilities in accordance with the Crossroads Trail Water Facilities Plans, including without limitation all labor, materials, equipment, supplies, and tools required for the construction and installation, is referred to in this Agreement as the "Crossroads Trails Water Facilities Work." The Clark Farms Boulevard Water Facilities Work and the Crossroads Trails Water Facilities Work are sometimes referred to herein collectively as the"Work." 1.3. Work by licensed contractor. Developer shall ensure (or shall cause Gladden to ensure) that the Work has been, or will be, performed by a contractor properly licensed by the State of Arizona as determined by the Arizona Registrar of Contractors. In addition to any other contractor's license classifications required by the Arizona Registrar of Contractors, the contractor shall hold contractor's license classifications A, A-12 and A-16. 1.4. Payment of connection fees. Before any service connections are made from the Town's water system to the Water Facilities, the person or entity seeking the service connection shall pay to the Town the connection fees and any other fees required under Marana Town Code Title 14. 1.5. Anticipated cost per meter. The person or entity seeking installation of a meter from the Town shall pay all applicable fees and charges in effect at the time of the meter installation request. As of the effective date of this Agreement, the Town's fees and charges to install a five-eighths-inch water meter on the Crossroads Property are detailed below. Note that larger meters incur higher fees. 1.5.1. Meter Install Fee: $360 1.5.2. Water Infrastructure Impact Fee: $2,331 1.5.3. Water Resource Development Impact Fee: $3,050 1.6. Water Facilities approval by Town. No service connections shall be made from the Town's water system to the Water Facilities until the Water Facilities have been accepted by the Town in accordance with Marana Town Code Title 14. 1.7. Developer's certification. Execution of this Agreement certifies that the Developer has reviewed the Facilities Plans and all other specifications applicable to the Work and has approved and agrees with the location of all service lines required for the Crossroads Property and the Gladden Farms II Property. 1.8. Termination for lack of Work. Subject to Force Majeure Events (as defined below), approval of the Water Facilities Plans shall lapse and this Agreement shall terminate if the Work has not commenced within one year of the date of this Agreement or if the Work is discontinued for a period of one year. For purposes hereof, "Force Majeure Events" means strikes, lockouts, fire or other casualties, significant changes in availability of material or labor 00083972.DOCX/53 shortages beyond those existing at the time of this Agreement, governmental regulations or controls not in existence as of the date of this Agreement, governmental delays, pandemics, acts of God, or other similar causes beyond the reasonable control of Developer. 2. Engineering and Inspection 2.1. Registered civil engineer. The Developer has caused, or shall cause, a Civil Engineer registered in the State of Arizona to design, lay out, establish control lines for and certify the layout of the Work according to the Water Facilities Plans. 2.2. Town inspector's authority. Any inspector authorized by the Town shall have full inspection authority over the Work. 2.3. Inspection provisions. The Developer shall furnish (or shall cause Gladden to furnish) the Town's inspector with all facilities reasonably necessary to inspect the Work. The Work shall be subject to Town inspection at all reasonable times. Defective Work shall be corrected in a manner satisfactory to the Town's inspector. Inspection by the Town is for the purpose of ensuring compliance with Water Facilities Plans only. The Town makes no guarantee as to the safety or engineering soundness of plans prepared by the Developer or any contractor. 2.4. Payment of Town inspector's overtime cost. If scheduling by a contractor reasonably requires the Town's inspector to work overtime,the Developer or contractor shall pay the Town for any additional salaries, expenses or employee benefits relating to the overtime. For purposes of this paragraph, overtime is any time over 40 hours worked in a seven-day work period, any time over eight hours worked Monday through Friday, and any time worked on weekends and legal holidays observed by the Town. 3. Preconstruction Procedure for Crossroads Trail Water Facilities 3.1. Request to begin construction. The Developer shall submit a written request to the Town to begin construction five working days before work on the Crossroads Trail Water Facilities is to commence. 3.2. Construction permit. This Agreement shall be completed, signed and notarized, and returned to the Town prior to issuance of a construction permit for the Crossroads Trail Water Facilities Work. 3.3. Start and completion of the Crossroads Trails Facilities Work. No portion of the Crossroads Trails Facilities Work shall begin until the Town has issued a construction permit specifying the starting date and a reasonable time for completion. 3.4. Progress of the Crossroads Trails Facilities Work. The Crossroads Trails Facilities Work shall be commenced and carried on at such points and in such order as may be directed by the Town. 3.5. Materials sampling and testing. Materials shall be available for sampling and testing by the Town prior to being used in the Crossroads Trails Facilities Work. Materials that fail to meet Town specification shall be removed from the site. 3.6. Permits and approvals. Developer shall, at the Developer's own expense, obtain all necessary permits and licenses for the Crossroads Trail Water Facilities Work, pay all fees, and comply with all laws,ordinances,and regulations relating to the Crossroads Trail Water Facilities Work. 00083972.DOCX/54 4. Construction of the Water Facilities 4.1. Developer's availability. The Developer or the Developer's designated representative (including, without limitation, a designated representative of Gladden) shall be reasonably available at all times during performance of the Work. The name of the Developer's and Gladden's designated representative is Dean Wingert. The name of the contractor performing the Clark Farms Boulevard Water Facilities Work is Borderland Construction Company. The name of the contractor performing the Crossroads Trail Water Facilities Work shall be furnished to the Town before the Crossroads Trail Water Facilities Work begins. Instructions given by the Town to the designated agent shall be deemed to have been given to the Developer. 4.2. Competence and diligence. The Developer shall retain (and shall cause Gladden to retain) only competent and efficient laborers, mechanics, or artisans on the Work, and the Developer shall diligently cause (and shall cause Gladden to diligently cause) the completion of the Work on or before the completion date given in a notice to proceed. 4.3. Paving. The Developer shall identify and locate (and shall cause Gladden to identify and locate)all water valves prior to paving and set valve boxes to final grade after paving. 4.4. Alterations to the existing Town water system. The Developer shall, at the Developer's own expense, make any and all alterations to the existing water system either on- site or off-site necessitated by paving, drainage, or other improvements caused by the development of the Crossroads Property and the Gladden Farms II Property. 4.5. Worksite safety. The Developer shall take commercially reasonably measures to ensure (and shall cause Gladden to take commercially reasonably measures to ensure) that all contractors and subcontractors performing any portion of the Work comply with all safety requirements of the Occupational Safety and Hazards Act as set forth by the Federal Government and as implemented by the State of Arizona. The Developer or its contractors and subcontractors shall be solely responsible for all fines or other penalties provided for by law for any violations of the Occupational Safety Hazards Act. 5. Dedication of Crossroads Trail Water Facilities 5.1. Transfer of the Crossroads Trail Water Facilities to the Town. Upon the Town's final acceptance of the Crossroads Trail Water Facilities Work, the Developer shall at no cost grant, bargain, sell, convey, transfer, and deliver to the Town the Crossroads Trail Water Facilities free and clear of all liens, claims, charges, or encumbrances. Notwithstanding anything to the contrary set forth herein, by virtue of its execution of this Agreement the Town expressly acknowledges and agrees that the Clark Farms Boulevard Water Facilities are included in and subject to a Town-supervised Community Facilities District (the "District" or"CFD") and the Clark Farms Boulevard Water Facilities will be dedicated to the District and operated by the Town in accordance with the standard CFD process. 5.2. Two-year warranty. The Developer guarantees (and shall cause Gladden to guarantee)the Work to be free from all failures due to poor workmanship or materials for a period of two years from the date of the Town's final acceptance of the Work. 5.3. Other conflicting construction prohibited. The Developer shall not construct or allow(and shall cause Gladden not to construct or allow)the construction of any utility,structure, 00083972.DOCX/55 building, or other improvement that would interfere with the operation or maintenance of the Water Facilities. 5.4. Developer's obligation to maintain finished grade.The Developer guarantees that all service lines, meters, and meter boxes on the Crossroads Property will be to finished grade and that the Developer will remain responsible for raising or lowering said services as required until the Crossroads Property is fully developed. 5.5. Acceptance by the Town. The Town shall accept title to and take possession of the Crossroads Trail Water Facilities when the Crossroads Trail Water Facilities Work has been completed to the satisfaction of the Town. Subject to the Developer's continuing obligations under this Agreement, the Town shall operate and service the Crossroads Trails Water Facilities after taking over possession of them under this paragraph. 6. Miscellaneous 6.1. Indemnity. Developer shall indemnify, defend, and hold harmless (or shall cause Gladden to indemnify, defend, and hold harmless)the Town, its Mayor and Council,officers and employees,boards, committees and commissions from and against any loss, claim, suit, demand, cause of action, or liability of any nature, including but not limited to damage to property and injuries to persons, including death, arising or alleged to have arisen, in whole or in part, out of any negligent act or omission of the Developer,Gladden,or any contractor, subcontractor, or any person employed directly or indirectly by any of them in the performance of the Work or in the operation of the Water Facilities. 6.2. Binding effect. This Agreement shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors and assigns of the Parties. 6.3. Consent required for assignment. The Developer may not assign this Agreement without the prior written consent of the Town. 6.4. Cancellation for conflict of interest. This Agreement is subject to A.R.S. § 38-511, which provides for cancellation in certain instances involving conflict of interest. 6.5. Counterparts. This Agreement may be executed in a number of identical counterparts. If so executed, each of such counterparts is to be deemed an original for all purposes, and all such counterparts shall, collectively, constitute one agreement. Signatures transmitted by facsimile and e-mailed pdf signatures shall be valid as originals. 6.6. Entirety and Amendments. This Agreement embodies the entire agreement between the Parties and supersedes all prior agreements and understandings,if any,relating to the transaction described herein, and may be amended or supplemented only by an instrument in writing executed by the Party against whom enforcement is sought. 6.7. Headings. Headings used in this Agreement are used for reference purposes only and do not constitute substantive matter to be considered in construing the terms of this Agreement. 6.8. Time of Essence. It is expressly agreed by the Parties hereto that time is of the essence with respect to this Agreement. 00083972.DOCX/56 [Signature page follows.] 00083972.DOCX/57 IN WITNESS WHEREOF the Parties have executed this Agreement as of the last date set forth below their respective signatures. THE"TOWN": THE"DEVELOPER": TOWN OF MARANA, TANGERINE 2021,LLC, an Arizona munici a corporation a Delaware limited liability company By: By , or Ed Honea, Mayor Its:iZti5-livAl-0.‘2.-C/ Date: 8 ,70.23 /j / Date: `/�h). (, 2°2 3 ATTEST: D L. Udall, Town Clerk APP' •d , D AS TO ORM: Jan- . rall, ToWn Attorney STATE OF ARIZONA ) )ss County of rtlrrl/I,, ) The foregoing instrument was acknowledged before me on *itl utA 31 , 2023 by a Vh(vi\ " , }bt ,,g17it( 0 i ) of TANGEMNE 2021, LLC, a Delaware limited liability company, on its behalf. (Seal) Notary Public .( OFFICIAL SEAL 04 CONNIE JIANG C, NOTARY PUBLIC-STATE OF ARIZONA PIMA COUNTY * " My Comm.Expires January 7,2024 Commission No.576139 00083972DOCX/58