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HomeMy WebLinkAboutResolution 2023-131 Approving and Authorizing the Mayor to Sign an Agreement for Construction of Water Facilities Under Private Contract for the Safford ApartmentsMARANA RESOLUTION NO.2023-131 RELATING TO WATER; APPROVING AND AUTHORIZING THE MAYOR TO SIGN AN AGREEMENT FOR CONSTRUCTION OF WATER FACILITIES UNDER PRIVATE CONTRACT FOR THE SAFFORD APARTMENTS WHEREAS Marana Leased Housing Associates I LLLP desires for the Town to provide water service to the land described and depicted in Lot 4 of the Final Plat for Continental Crossing Lots 1 Thru 4, recorded in the Pima County Recorder's office on February 19, 2016 at Sequence No. 20160500157 (the "Safford Apartments Development"); and WHEREAS Town staff has negotiated an Agreement for Construction of Water Facilities Under Private Contract and with Marana Leased Housing Associates I LLP for The Safford Apartments Development; and WHEREAS the Mayor and Council find that the terms and conditions of the agreement is 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 for The Safford Apartments, substantially in the same form attached to and incorporated by this reference in this resolution as Exhibit A, is hereby approved, the Mayor is hereby authorized and directed to sign it for and on behalf of the Town of Marana, and the Towri 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. 2023-131 PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, ARIZONA, this 19th day of December, 2023. ATTEST: Davi Udall, Town Clerk Mayor Ed Honea APPROV D AS TO FORM: Jae airall, Town Attorney -2- Resolution No. 2023-131 Exhibit A to Marana Resolution No. 2023-131 TOWN OF MARANA AGREEMENT FOR CONSTRUCTION OF WATER FACILITIES UNDER PRIVATE CONTRACT The Safford Apartments THIS AGREEMENT (this "Agreement") is entered into by and between the TOWN OF MARANA, an Arizona municipal corporation (the "Town") and MARANA LEASED HOUSING ASSOCIATES I LLLP, a Minnesota limited liability limited partnership (the "Owner"). The Town and the Owner are sometimes together 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 Owner is the title owner of land described and depicted in Lot 4 of the Final Plat for Continental Crossing Lots I Thru 4, recorded in the Pima County Recorder's office on February 19, 2016 at Sequence No. 20160500157, which land area is referred to in this Agreement as the "Subject Property." C. The Owner is developing and constructing a multifamily housing project on the Subject Property, which it will own, operate and maintain. D. The Owner desires for the Town to provide water service to the Subject Property. E. As a condition of securing water service from the Town for the Subject Property, the Owner agrees to install those certain water infrastructure improvements (the "Owner -Installed Facilities") in accordance with the required plans, specifications, and materials as outlined and depicted in the Water Distribution to Serve The Safford Buildings I - 9, Plan No. ENG-2208-019, sealed by the Rick Engineering Company on December 21, 2022 and approved by the Town of Marana on January 11, 2023 (the "Facility Plan"), a copy of which is on file in the office of the Town of Marana Water Department. F. The Owner desires that the Town take ownership of, operate, and service the Owner -Installed Facilities. G. The Town is willing to accept the Owner -Installed Facilities and permit it to be connected to the Town water system provided it meets Town standards and the work is done in accordance with Town requirements. H. The Development Plan Package for The Safford, DP2206-003, sealed by the Rick Engineering Company on November 21, 2022 and approved by the Town of Marana on December 12, 2022, states that a 25-foot public water easement (the "Public Water Easement") will be dedicated by separate instrument. AGREEMENT Now, THEREFORE, in consideration of the foregoing premises and the mutual covenants set forth in this Agreement, the Parties hereby agree as follows: Exhibit A to Marana Resolution No. 2023-131 1. Dedication of Public Utility Easement. The Owner shall dedicate the Public Water Easement to the Town for the public portions of the water infrastructure needed to serve the development. The Public Water Easement shall be dedicated by a separate instrument prior to the acceptance of the Owner -Installed Facilities, or, if not required by the Town prior to acceptance, then within 30 days of the Town's written request. The Town acknowledges that execution and recordation of the Public Water Easement is subject to approval of Owner's lenders and other financing parties and the Town shall make any reasonable modifications to the Public Water Easement requested by such parties. 2. The Owner -Installed Facilities. 2.1. Owner installation of the Owner -Installed Facilities. The Owner has designed and shall install, at the Owner's own expense, the Owner -Installed Facilities as depicted in the Facility Plan. The Owner -Installed 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 Facility Plan shall include a plan note identifying the Owner -Installed Facilities as a new water facility and shall show any and all alterations to the existing water system. Construction and installation of the Owner -Installed Facilities in accordance with the Facility Plan, including without limitation all labor, materials, equipment, supplies, and tools required for the construction and installation, is referred to in this Agreement as the "Work." 2.2. Work by licensed contractor. The Work shall be performed by a contractor properly licensed by the State of Arizona as determined by the Arizona Registrar of Contractors. In addition to any other contractor's license classifications required by the Arizona Registrar of Contractors, the contractor shall hold contractor's license classifications A, A-12 and A-16. 2.3. Payment of connection fees. Before any service connections are made from the Town's water system to the Owner -Installed 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, including, but not limited to, any and all applicable oversizing recovery charges (also commonly referred to as "protected facility fees"). 2.4. Anticipated cost per meter. The person or entity seeking installation of a meter from the Town shall pay all applicable fees and charges in effect at the time of the meter installation request. As of the effective date of this Agreement, the Town's fees and charges to install a five -eighths -inch water meter on the Subject Property are detailed below. Note that larger meters incur higher fees. 2.4.1. Meter Install Fee: $360.00 2.4.2. Water Infrastructure Development Impact Fee: $2,967.00 2.4.3. Water Resource Development Impact Fee: $5,358.00 2.5. Owner -Installed Facilities acceptance by Town. No service connections shall be made from the Town's water system to the Owner -Installed Facilities until the Owner -Installed Facilities has been accepted by the Town in accordance with Marana Town Code Title 14. 2.6. Owner's certification. Execution of this Agreement certifies that the Owner has 2 Exhibit A to Marana Resolution No. 2023-131 reviewed the Facility Plan and all other specifications applicable to the Work and has approved and agrees with the location of all service lines as shown in the Facility Plan. 2.7. Termination for lack of Work. Approval of the Facility Plan 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. 3. Engineering and Inspection. 3.1. Registered civil engineer. The Owner shall employ a registered 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 Facility Plan. 3.2. Town inspector's authority. Any inspector authorized by the Town shall have full inspection authority over the Work. 3.3. Inspection provisions. The Owner shall furnish the Town's inspector with all facilities reasonably necessary to inspect the Work. The Work shall be subject to Town inspection at all times. Defective work shall be corrected in a manner satisfactory to the Town's inspector. Inspection by the Town is for the purpose of ensuring compliance with plans and specifications only. The Town makes no guarantee as to the safety or engineering soundness of plans prepared by the Owner or any contractor. 3.4. Payment of Town inspector's overtime cost. If scheduling by the Owner's contractor reasonably requires the Town's inspector to work overtime, the Owner or Owner's contractor shall pay the Town for any additional salaries, expenses or employee benefits relating to the overtime. For purposes of this paragraph, overtime is any time over 40 hours worked in a seven-day work period, any time over eight hours per day worked Monday through Friday, and any time worked on weekends and legal holidays observed by the Town. 4. Preconstruction Procedure. 4.1. Request to begin construction. The Owner shall submit a written request to the Town to begin construction a minimum of five working days before the Work is to commence. 4.2. Construction permit. This Agreement shall be completed, signed and notarized, and returned to the Town prior to issuance of a construction permit for the Work. 4.3. Start and completion of the Work. No portion of the Work shall begin until the Marana Water Department has issued a water permit and the Town has issued a construction permit specifying the starting date and a reasonable time for completion. 4.4. Progress of the Work. The Work shall be commenced and carried on at such points and in such order as may be directed by the Town. 4.5. Materials sampling and testing. Materials shall be available for sampling and testing by the Town prior to being used in the Work. Materials that fail to meet Town specification shall be removed from the site. 4.6. Permits and approvals. The Owner shall, at Owner's expense, obtain all necessary permits and licenses for the Work, pay all fees and comply with all laws, ordinances and regulations relating to the Work. 3 Exhibit A to Marana Resolution No. 2023-131 5. Construction. 5.1. Owner's presence on site. The Owner, or Owner's designated agent (which shall include its contractor), shall be present at all times during performance of the Work. The name of the Owner's designated agent and the contractor performing the Work shall be furnished to the Town before the Work begins. Instructions given by the Town to the designated agent shall be deemed to have been given to the Owner. 5.2. Competence and diligence. The Owner shall employ only competent and efficient laborers, mechanics or artisans on the Work, and the Owner agrees to perform diligently to complete the Work on or before the completion date given in the notice to proceed. 5.3. Paving. The Owner shall identify and locate all water valves prior to paving and set valve boxes to final grade after paving. 5.4. Alterations to the existing Town water system. The Owner shall, at the Owner'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 Subject Property. 5.5. Worksite safety. The Owner shall require all contractors and subcontractors performing any portion of the Work to comply with all safety requirements of the Occupational Safety and Hazards Act as set forth by the Federal Government and as implemented by the State of Arizona. The Owner or its contractors shall be solely responsible for all fines or other penalties provided for by law for any violations of the Occupational Safety Hazards Act. 6. Dedication. 6.1. Transfer of the Owner -Installed Facilities to the Town. Upon the Town's final acceptance of the Work, the Owner shall at no cost grant, bargain, sell, convey, transfer and deliver to the Town the Owner -Installed Facilities free and clear of all liens, claims, charges or encumbrances. 6.2. Two-year warranty. The Owner guarantees 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. 6.3. Other conflicting construction prohibited. The Owner shall not construct or allow the construction of any utility, structure, building, or other improvement that would interfere with the operation or maintenance of the Owner -Installed Facilities. The Town agrees that no such conflicting construction exists in the Facility Plan. 6.4. Owner's obligation to maintain finished grade. The Owner guarantees that all service lines, meters, and meter boxes on the Subject Property will be to finished grade and that the Owner will remain responsible for raising or lowering said services as required until the Subject Property is fully developed. 6.5. Acceptance by the Town. The Town shall accept title to and take possession of the Owner -Installed Facilities when the Work has been completed to the satisfaction of the Town. Subject to the Owner's continuing obligations under this Agreement, the Town shall operate and service the Owner -Installed Facilities after taking over possession of it under this paragraph. 4 Exhibit A to Marana Resolution No. 2023-131 7. Miscellaneous. 7.1. Indemnity. Owner shall indemnify, defend, and hold harmless the Town, its Mayor and Council, officers and employees, boards, committees and commissions from and against any loss, claim, suit, demand, cause of action, or liability of any nature, including but not limited to damage to property and injuries to persons, including death, arising or alleged to have arisen, in whole or in part, out of any negligent act or omission of the Owner 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 Owner -Installed Facilities, except to the extent such loss, claim, suit, demand, cause of action, or liability is the result of the negligence or willful misconduct of the Town. 7.2. Binding effect. This Agreement shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors and assigns of the Parties. 7.3. Consent required for assignment. The Owner may not assign this Agreement without the prior written consent of the Town. 7.4. 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. 7.5. Counterparts. This Agreement may be executed in 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 attached to a single instrument so that the signatures of all Parties may be physically attached to a single document. 7.6. 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. This Agreement may be amended or supplemented only by an instrument in writing executed by the Parties. 7.7. Term. This Agreement shall terminate on the date that is two years after the date on which Town has accepted title to and taken possession of the Owner -Installed Facilities and following the expiration of the warranty period set forth in Section 6.2 herein. 27833555v2 [Signature page follows.] 5 Exhibit A to Marana Resolution No. 2023-131 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last date set forth below their respective signatures. THE "TOWN": TOWN OF MARANA, an Arizona municipal corporation By: Ed Honea, Mayor Date: ATTEST: David L. Udall, Town Clerk APPROVED AS TO FORM: Jane Fairall, Town Attorney STATE OF ) )ss County of ) THE "OWNER": MARANA LEASED HOUSING ASSOCIATES I LLLP, a Minnesota limited liability partnership By: LANGSTON HUGHES MARANA GENERAL, LLC, a Georgia limited liability company, its General Partner By: LANGSTON HUGHES AFFORDABLE HOUSING, INC., a Georgia 501(c)(3) nonprofit corporation, its Manager David Sewall Searles, Jr., President The foregoing instrument was acknowledged before me on December , 2023 by David Sewall Searles Jr., the President of LANGSTON HUGHES AFFORDABLE HOUSING INC., a Georgia 501(c)(3) nonprofit corporation, Manager of LANGSTON HUGHES MARANA GENERAL, LLC, a Georgia limited liability company, General Partner of MARANA LEASED HOUSING ASSOCIATES I LLLP, a Minnesota limited liability limited partnership, on behalf of the partnership. (Seal) Notary Public