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HomeMy WebLinkAboutResolution 2004-076 agreement with rancho chimayo and paul horwitz for water line extensionMARANA RESOLUTION NO. 2004-76 RELATING TO WATER SERVICE; APPROVING AND AUTHORIZING THE EXECUTION OF THE AGREEMENT BETWEEN THE TOWN OF MARANA AND RANCHO CHIMAYO, L.L.C. AND PAUL R. HORWITZ FOR WATER LINE EXTENSION CONSTRUCTION. WHEREAS, Rancho Chimayo, L.L.C. and Paul R. Horwitz intends to construct a Water Line Extension Facility to provide water service to property; and WHEREAS, the property is in a remote area where few additional water connections are anticipated in the foreseeable future; and WHEREAS, Marana is willing to provide water service to the Property in accordance with Chapter 14 of the Marana Town Code and in accordance with the terms of the Agreement; and WHEREAS, Rancho Chimayo, L.L.C. and Paul R. Horwitz intends to retain ownership, operation and maintenance responsibility for the Water Facility unless and until the number or extent of water hookups served by the Water Facilities would be regulated as a separate water utility by the Arizona Corporation Commission; and WHEREAS, the Mayor and Council find that the terms and conditions of the 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, AS FOLLOWS: SECTION 1. The Agreement for Water Line Extension Construction between the Town of Marana and Rancho Chimayo, L.L.C. and Paul R. Horwitz, attached as Exhibit A to and incorporated here by this reference, for water line extension construction of water facilities, is hereby authorized and approved. SECTION 2. The Mayor is hereby authorized and directed to execute, and the Town Clerk in hereby authorized and directed to attest to, said Exhibit A for and on behalf of the Town of Marana. SECTION 3. The various Town officers and employees are authorized and directed to perform all acts necessary or desirable to give effect to this resolution. PASSED A ND ADOPTED B Y T HE MAYOR A ND COUNCIL O F THE TOWN OF MARANA, ARIZONA, this 15th day of June, 2004. Mayor l~b~S~ton, Jr. ATTEST: /~lyn c~ronson,-Town Clerk APPROVED AS TO FORM: ' /ank C~f~f,, 'own A~]~Sy RSO 040518 Continental Reserve 18, 19, 17 RSO 2004-58 2 APM 06/06/2004 Exhibit A TOWN OF MARANA AGREEMENT FOR WATER LINE CONSTRUCTION 0Nater System Line Extension Agreement) THIS AGREEMENT (this "Agreement") is entered by and between the TOWN OF M^- RANA, an Arizona municipal corporation, ("Marana"), RANCHO CHIMAYO, L.L.C., an Ari- zona limited liability company ("Rancho Chimayo"), and PAUL R. HORWlT"Z, a married man dealing with his sole and separate property ("Horwitz"). Rancho Chimayo and Horwitz are collectively referred to as the "Applicants." Marana and the Applicants are sometimes collectively referred to as the "Parties," and are sometimes individually re- ferred to as the "Party." RECITALS A, The Applicants desire to secure water service to the Property. B. The Property is in a remote area where few additional water connections are an- ticipated in the foreseeable future. C. The Applicants are willing at their own cost to construct by private contractor cer- tain "Water Facilities" (described and defined below) to serve the Property. D. Marana does not wish t o undertake r esponsibility for t he o wnerahip, operation, maintenance or liability relating to the Water Facilities unless and until the number or extent of water hookups served by the Water Facilities would be regulated as a sepa- rate water utility by the Arizona Corporation Commission, E. Applicants are willing to retain ownership, operation and maintenance responsibil- ity for the Water Facilities so long as during the period of the Applicants' ownership, operation and maintenance responsibility the Applicants (i) retain the ability to decide whether and at what price third par~ies are permitted to connect to and be served by the Water Facilities and (ii) recoup for the maximum period allowed by law any connection fees which would otherwise be payable to Marana. F. Marana is willing to permit the Applicants to control the Water Facilities (including without limitation to decide whether and at what price third parties are permitted to con- nect to and be served by the Water Facilities) during the period of the Applicants' own- ership, operation and maintenance responsibility s o long a s Applicants and a ny third parties who connect to Marana's water system pay to Marana all fees payable by any other customer of Marana's water utility for connection, water consumption and water system and water resource expansion. TOWN OF [i/L4RANA/RANCHO CHII~A YO, LL C/HORW~TZ WA TER ~ERVICE AGREEMENT PAGE 'I OF '10 AGT 040614 Rancho Chimayo Water FJC.doc G. Marana is willing to supply water to Applicants in accordance with the Marana Town Code and the terms of this Agreement. AGREEMENT Now, THEREFORE, in consideration of the recitals set forth above, which are incor- porated here as the intention of the Parties in entering into this Agreement, and the mutual covenants, conditions, and agreements set forth below, the Parties hereby agree as follows: '1. Definitions. The following definitions apply to this Agreement: 1.1. "Applicants" means Rancho Chimayo and Horwitz and their successors and assigns, collectively, jointly and severally. 1.2. "Approved Plans and Specifications" means the plans and specifications ap- proved by and on file in the office of the Marana Water Department, and which Ap- plicants hereby certify have been: 1.2.1. prepared and certified by a registered civil engineer at Applicants' ex- pense and on Applicants' behalf, and 1.2.2. submitted on Applicants' behalf to Marana. 1.3. "Effective Date" has the meaning set forth in paragraph 14 below. 1.4. "Property" means that certain land owned by the Applicants which is particu- larly and legally described in Exhibit "A" attached to and incorporated in this Agree- ment by this reference. 1.5. "Waterline Easement" means the easement described and depicted on Ex- hibit B attached to and incorporated by this reference in this Agreement 1.6. '~/Vater Facilities" means the Water Line and all water facilities and other im- provements related to it and necessary for its operation between point A (from and including the water meter and the connection to existing Town water facilities) to point B (the southernmost point of the Water Line and the Waterline Easement) de- picted on and described in the Approved Plans and Specifications. '~Nater Facilities" shall not include any booster pump or storage tank that serves an individual resi- dence. 1.7. "Water Line" means that part of the Water Facilities consisting of an eight- inch water line to be constructed a nd installed by Applicants within the Waterline Easement and which s hall mn from point A to point B on the map portion of Ex- hibit B. 1.8. "Work" means construction of the Water Facilities and all related work. TOWN OF MARANA/RANCHO CHIMA YO, LLC/HORWITZ WATER ,SERVICE AGREEMENT PAGE 2 OF '10 AGT 040~14 Rancho Chlrnayo Water FJC.doc 2, Manner of undertaking and completing the Work. The Applicants shall under- take and complete the Work in accordance with the Approved Plans and Specifications, and subject to the following requirements: 2.1. The Work shall be done by a contractor properly licensed by the State of Ad- zone. 2.2. The Work and the location of the Water Facilities in the ground shall comply with the requirements of all public agencies having authority to prescribe regulations with respect to the location and manner of installation. 2.3. The Applicants and their contractor shall obtain a~l necessary permits and li- censes, pay all fees and comply with all laws, ordinances and regulations related to the Work. 2.4. All materials used in the Work shall be new. 2.5. The workmanship and materials used in the Work shall be of good quality and shall meet the combined specifications and standards of 2.5.1. the American Water Works Association, 2.5.2. the Arizona Department of Environmental Quality (ADEQ), 2.5.3. the Pima County Department of Environmental Quality (PCDEQ), 2.5.4. all local regulatory agencies, and 2.5.5. the Approved Plans and Specifications. 2.6. While the Work is being undertaken and during Applicants' ownership of the Water Facilities, Applicants shall pay and be responsible for all of the following: 2.6.1. all water costs to fill, chlorinate, flush and pressure test the Water Fa- cilities, 2.6.2. all water costs related to any leakage or breaks that occur in the Water Facilities, 2.6.3. maintaining the Water Facilities in good operating condition, and 2.6.4. repairing, or (at Marana's reasonable opfion) removing and replacing any and all portions of the Water Facilities or the Work that 2.6.4.1. in any way fail to conform to this Agreement, 2.6.4.2. for any reason whatsoever are damaged, 2.6.4.3. prove to be defective, or TOWN OF MARANA/RANCHO CHIMA YO, LLC,/HORWITZ WATER ,SERVICE AGREEMENT PAGE 3 OF 10 AGT 040614 Rancho Chimayo Water FJC,doc 2.6.4.4. require maintenance or repair. 2.7. Applicants shall comply with the inspection and testing requirements of ADEQ, PCDEQ and Marana for the Work, provided that the requirements are rea- sonable and do not cause unwarranted delays in the ordinary course of construction. 2.8. Applicants shall promptly notify Marana when the Work is ready for inspec- tion and testing, and Marana shall promptly inspect the Work. 2.9. The Applicants shall give Marana and any inspectors appointed by it free ac- cess to the construction site and shall facilitate and provide full information for the proper inspection and testing of the Work and all materials used in undertaking and completing the Work, whenever requested by Marana or its inspectors. 2.10. The approval of the Work by any inspector shall not relieve Applicants from their obligation to comply in all respects with the Approved Plans and Specifications and to complete the Work in accordance with best industry practices. 2.11. Marana specifically reserves the right to withhold approval of the Work or any portion of it, to forbid connection of the Water Facilities to Marana's water utility system, or to disconnect the Water Facilities from Marana's water utility system if the Work has not been undertaken in accordance with this Agreement. 2.12. if the Applicants or any govemment entity having jurisdiction over the Work make (or desire to make) any material changes to the design of the Water FaciJities or the manner of the Work as shown on the Approved Plans and Specifications, the Applicants shall (a) obtain Marana's prior written consent to such material changes or modifications, (b) pay Marana a reasonable fee for reviewing the changes or modifications and (c) pay any and all additional cost of construction associated with the changes or modifications. 2.13. The Applicants shall promptly pay, satisfy and discharge all mechanics', materialmen's and other liens, claims, obligations and liabilities which may be as- serted in connection with or in any way relating to or resulting from the Work. 2.14. The Applicants undertake the Work and the ownership of the Water Facili- ties at their own risk until ownership of the Water Facilities is transferred to Marana in accordance with paragraph 4 below. 2.15. No permanent structures (including without limitation masonry walls, con- crete slabs or fences) shall be constructed on or through the Waterline Easement without the expressed written consent of Marana. 2.16. The Applicants shall install and maintain at their cost and to Marana speci- fications automated meter, sensor, and other equipment needed for automated me- ter reading of the water meter to be located at point A shown on the map portion of Exhibit B attached to this Agreement. TOWN OF MARANA/'RANCHO CHIMA YO,~ LLC,/HORWlTZ WATER ,SERVICE AGREEMENT PAGE 4 OF 40 AGT 040614 Rancho Chlrnayo Water FJC.doc 3. The Applicants' responsibilities upon completion of the Work. Within sixty days after completion of the Work, the Applicants shall provide the following information to Marana: 3.1. As-built plans showing the actual as-built locations and specifications of the Work. 3.2. A full itemized accounting of all actual costs of the Work and the Water Fa- cilities. 4. Transfer of ownership of the Water Facilities to Marana. The Applicants shall at n o cost assign t o Marana t heir rights a nd interest i n t he Waterline Easement a nd shall transfer to Marana ownership of the Water Facilities when the number or extent of water hookups served by the Water Facilities would be regulated as a separate water utility by the Arizona Corporation Commission. All materials installed by or on behalf of the Applicants pursuant to this Agreement, including without limitation all of the Work and the Water Facilities, shall thereupon become the sole property of Marana, and full legal and equitable title to them shall be then vested in Marana, free and clear of any and all liens. Applicants shall execute or cause to be executed promptly such docu- ments as legal counsel for Marana may reasonably request to evidence this assignment and conveyance free and clear of all liens. If the Applicants fail to assign and transfer to Marana their rights as provided in this paragraph, Marana may at its option upon sixty days written notice to the Applicants cease the delivery of water through the Water Facilities to the Property and terminate this Agreement. 5. Rights and responsibilities during the Applicants' ownership of the Water Facilities. Until the Water Facilities are transferred to the Town in accordance with paragraph 4 above, the Applicants have the following rights and responsibilities: 5.1. No water connections of any kind may be made to the Water Facilities with- out the express written consent of the Applicants. 5.2. The Applicants may charge a fee in an amount determined at the Applicants' sole discretion as a condition of granting permission to connect to the Water Facili- ties. 5.3. The Applicants shall hold harmless and defend Marana from and against any claims relating in any way to the Water Facilities or the Work or to the Applicants' denial or conditions of consent to connect to the Water Facilities. 5.4. The Applicants shall keep and maintain the Water Facilities in good repair and operation in accordance with the previsions of paragraph 2.6 above. 6. Miscellaneous Hghts and responsibilities. The following rights and responsibili- ties apply irrespective of whether ownership of the Water Facilities is in the Applicants or the Town: 6.1. The Applicants and any other parties receiving delivery of water from Ma- rana through the Water Facilities shall pay all duly adopted Marana water fees, and Town OF MARANA/RANCHO CHIMA YO, LL C/HoRWFrZ WA T*ER SERVICE AGREEMENT PAGE 5 OF lO AGT 040614 Rancho Chimayo Water FJC.doc the provisions of Marana Code §14-7 and any successor or amendatory provisions are incorporated as though set forth in full here. 6.2. Any new connection to the Water Facilities shall pay the same connection fees and development impact fees for water system and water resource expansion that are then payable by other similarly situated Marana water customers. This con- nection shall be in addition to the fee charged under Section 5.2. 6.3. For a period of f'~een years from and after the Effective Date of this Agree- ment, Marana shall pay to the Applicants all connection fees paid to Marana for any new connection to the Water Facilities. For purposes of this paragraph, the term "connection fees" shall not include any development impact fees that Marena may hereafter adopt to fund water resoume acquisition and expansion or to fund water system expansion or enhancements. 6.4. The Applicants shall have the same dght as any other Marana Water De- partment customer to install a larger water meter at point A shown on the map por- tion of Exhibit B attached to this Agreement, as long as all applicable fees are paid to Marana. 6.5. The Property shall be included in the service area of the Marana Water De- partment upon the Applicants' satisfaction of their obligations under this Agreement and completion of all other applicable requirements found in Marana Code §14-5 and any successor or amendatory provisions, which are incorporated as though set forth in full here. 6.6. Marana shall provide water utility service to the Property so long as the Ap- plicants are not in default under this Agreement. 6.7. Marana will provide the State of Arizona Designation of Assured Water Sup- ply status for the Property upon acceptance of the Property into Marana's service area by the Central Adzona Groundwater Replenishment District (CAGRD). 6.8. The Applicants understand and agree that a groundwater replenishment fee to fund the replenishment of groundwater is added to the water bills for Marana's customers, and will be added to water bills for delivery of water to the Property. 7. No effect on the Applicants' rights beyond their meter. Nothing in this Agree- ment applies to or affects the Applicants' rights to install such private water lines, private meters or other private water improvements located on the Property past the water meter referenced in paragraph 2.16 above, so long as any such private water lines, private meters or other private water improvements do not violate any applicable fed- eral, state or local law or regulation. 8. Performance and payment bonds. The Applicants shall furnish Marana with such security as is determined by the Marana Utility Director to be appropriate and necessary to assure Marana that Applicants will undertake, complete and pay for the Work in accordance with the Applicants' obligations under this Agreement. TOWN OF MARANA/~,ANCHO CHIMA YO~ LL C/HoRWlTZ WA TER ~ERWCE AGREEMENT PAGE 6 OF lO AGT 040614 Rancho Chlmayo Water FJC.doc 9. Termination of this Agreement. 9.1. This Agreement shall be null and void, canceled and of no further force and effect if the Work is not completed on the first anniversary of the Effective Date of this Agreement. 9.2. This Agreement is subject to the provisions of A.R.S. § 38-511, which pro- vides for cancellation of local government contracts in certain instances involving conflicts of interest. t0. Indemnification. The Applicants shall indemnify, appear, defend and hold harm- less Marana and its employees from and against any and all claims or causes of action which may be asserted against Marana for negligent design or construction of the Water Facilities or arising from the negligence of the Applicants or their contractors, employ- ees or agents. t'l. Notice. All notices, filings, consents, approvals and other communications pro- vided 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 m ail, postage p repaid, i f to (or t o such other addresses a s either Party may from time to time designate in writing and deliver in a like manner): To Marana: Town Manager Town of Marana 13251 N. Lon Adams Road Marana, Adzona 85853-9723 With copy to: Frank Cassidy, Town Attorney Town of Marana 13251 N. Lon Adams Rd. Marana, Arizona 85653-9723 And a copy to: Martinez & Curtis, P.C. Attention: William P. Sullivan 2712 N. 7th Street Phoenix, Arizona 85006-1090 To Applicant: Paul R. Horwitz Rancho Chimayo L.L.C. P. O. Box 770 Cortaro, Arizona 85652-0770 12. Severabllity. If any provision of this Agreement is declared void or unenforce- able, it shall be severed from the remainder of this Agreement, which shall otherwise remain in full force and effect. 13. Binding effect. This Agreement shall be binding upon and benefit the heirs, administrators, executors, successors and assigns of the Parties. TOWN OF MARANA/RANCHO CHIMA YO, LL C,/HoRw~Tz WATER ~ERVICE AGREEMENT PAGE 7 OF AGT 040614 Rancho ChlmayoWaler FJC.doc 14. Effective date and term. This Agreement shall become effective upon its exe- cution by all the Parties and the effective date of the resolution or action of the Town Council approving this Agreement (the "Effective Date"). If this Agreement is not ap- proved by action of the Town Council, it shall be null and void and of no force or effect whatsoever. Upon completion of the Work in accordance with this Agreement, the Par- ties intend for the Property permanently to be served by the Marana Water Department pursuant to the terms of this Agreement and any rules and regulations of the Marana Water Department that may now or hereafter apply to the delivery of water to its cus- tomers. 15. Miscellaneous. 15.1. This instrument contains the sole and only agreement of the Parties relating to Marana's delivery of water to the Property, and correctly sets forth the rights, du- ties and obligations of each to the other as of the Effective Date. Any prior agree- ments, promises, negotiations or representations not expressly set forth in this Agreement are of no force and effect. This instrument contains the entire agreement between the parties, and it shall not be amended, altered or changed, except by writ- ten agreement signed by the Parties. 15.2. This Agreement and all executed amendments to this Agreement shall re- main on file in Marana offices and shall be made available for public review upon re- quest. 15.3. This Agreement is entered into under and shall be governed by the laws of the State of Arizona. 15.4. This Agreement has been arrived at by negotiation and shall not be con- strued against any Party to it or against the Party who prepared the last draft. 15.5, Captions and headings are for index purposes only and shall not be used on construing this Agreement. 15.6. This Agreement does not relieve any Party of any obligation or responsibil- ity imposed upon it by law. 15.7. The remedies s et forth i n t his Agreement s hall not b e deemed exclusive remedies but shall be in addition to all other remedies available at law or in equity. No waiver by either party of any breach of any provision of this Agreement nor any failure by either party to insist on strict parformance of any provision of this Agree- ment shall in any way be construed to be a waiver of any future or subsequent breach or to insist on strict performance of the provisions of this Agreement in the fu- ture. 15,8, The Applicants are not agents or employees of Marana. 15.9. This Agreement, and all rights and obligations under it, including those re- garding water service to the Applicants, shall be subject to all provisions of Chapter 14 of the Municipal Code of the Town of Marana and all applicable rates, fees, TOWN OF MARANA/RANCHO CHIMA YO, LLC./HORWITZ WATER SERVICE AGREEMENT PAGE 8 OF fO AGT 040614 Rancho Chima~,~ Water FJC.¢loc charges and tadffs of the Marana Water Utility as approved by the Mayor and Coun- cil of the Town of Marana now or as they may be changed and approved by the Mayor and Council of the Town of Marana in the future. [REMAINDER OF PAGE INTENTJONALLY LEFT BLANK.] TOWN OF MARANA/RANCHO CHIMA YO, U. C/HORW~TZ WA TER SERVICE AGREEMENT PAGE 9 OF 10 AGT 040614. Rancho Chimayo Wate~ FJC.do~ IN WITNESS WHEREOF, the P ar ties h ave executed t his Agreement a s of t he Iast date set forth below their respective signatures. MARANA: THE APPLICANTS: THE TOWN OF MARANA, an Arizona municipal corporation Date: RANCHO CHIMAYO, L.L.C., an Arizona limited liability company {~Rancho Chimayo") Paul R. Horwitz, Manager ATTEST: Fr k Ca ' ' y, Town Att~yey STATE OF ARIZONA ) SS County of Pima PAUL R. HORWITZ, a married man dealing with his sole and separate property ("Horwitz") Paul R. Horwitz Date: The foregoing instrument was acknowledged before me o n Paul R. Horwitz, Manager of RANCHO CHIMAYO, L.L.C., an A~ /~/.~,~'~/'"' b y ~na limited liabilitY com- ity Pul~lic f AGT 0~0614 Rancho Chima¥o Water FJC.doc pany, on behalf of the L.L.C. My commission expires: I STATE OF ARIZONA )SS County of Pima ) w P,~ ~. Ho~,~. ~ ma~i~d m~ dea,n~ wi~h h~ ~o~ ~n,~a~p~y. My commission ex~ires: I Exhibit A THE NORTH HALF OF THE SOUTHEAST QUAKr~ OF THE NORTHEAST QUAR'i'~ OF SECTION 9. TOWNSHIP 13 SOUTK RANCrI~ 12 EAST, GiLA AND SALT I~VER BASE AND MERIDIAN, P~L~ COUNTY, ARIZONA. THE NORTH HALF OF TH~ 8OLrfHW~T QUARTER OF THE NORTHEAST QUAKu=K OF $P. ciiON 9. TOWN.lIP 13 SOUTH. RANGE 12 EAST, GILA AND SALT RIVI!R BASE AND MIgltIDIAN, PIMA COUNTY, ARIZONA. THE SOU'I~ HALF OF THE SOU'INEASr QUARTER 01; THE NORTHEAST QUARTER OF Sr~TION ~,, TOWNSH~ I~ ~OLrrH, RANGE 12 EAST, ORA AND SALT RIVER BAXE AND MERIDIAN, PIMA COUNTY, ARIZONA. THE SOUTH HALF OF NORTHWEST QUARTER OF THE NORTHEAST QUAI~"IP.~ OP' ~CTION 9, TOWNS~IP 13 SOUT~ ~ 12 EAST, GILA AND SALT RIVER BASE AND MERIDIAN, PIMA COUNTY, ARIZONA, Pa,qe I of 1 3040 N. Conestoga Ave. Tu~on AZ ~74~-9332 e-r't~il; bttle~BF~ll.com vo,~. ($20) .... 't~ June 3, 2004 Exhibit B (1 of 2) AN EASEMENT FOR WATEA ~OSF_~ IN. 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EAST, ADISTANCEOF2Y.2.02FEET TO A Pon'..,"T OF CL~m, VAT[.,'RE; THENCE SOUTHEASTERLY, ALONG THE ARC OF A ClI~CULA~ CURVE CONCAt/]~ TO TI~ ~OLrr~ST AND HA?,r/NG A RAD1T. JS OF 180.00 FE~T~ A DISTANCE OF 183.29 ~ TO APOII',{T OF T,AN'GENCY; THENCE SOUTH 05 DEO. 08 IV[IN. 47 SEC. WEST, A DISTANCE OF 199.52 FEET; TI-lANCE SOUTH 01DEO. 231VEN. 52 SEC. WEST, A DISTANCE OF 242 FEET TO Tile POrter OF ",'~c. IO,fiNATION. ~-60' x 170' EASEU, ENT ! SCALE 1" Z N~ Nw.4 NE4 SW4 NE4 NE4 SE4 NE4 N~4 N2 SE4 NE4 EXHIBIT $~<ETCH TO ACCOMPANY A LEGAL ' DESCRIPTION FOR A WATER ,F. ASEMENT IN SECTION 9. T13S, R12E, PIMA COUNTY. ARIZON,~ Exhibit B t) BRUCE SMALL SURVEYS, INC. 3040 N. CONESTOGA AVE. TUCSON AZ 85749-9332 VOICE; (520} 444-7186 FAX: (520) 760-8346 E-MNL; BRUCE{~BFSMALL.COM (2 of 2)